The Kansas Supreme Court has potentially dealt a significant win to two former Highway Patrol officers who said they were forced out after helping female employees defend themselves against sexual harassment and gender discrimination.
Last week, the Supreme Court handed down a decision in a separate case involving a former KHP superintendent that could strengthen the case of former Majs. James Harrington and Joshua Kellerman, who claimed their due process rights were violated.
Harrington and Joshua Kellerman filed a lawsuit against the patrol in 2020, alleging that top management created and fostered a hostile work environment of sexual harassment and gender discrimination.
The Supreme Court found that the rank of major was a classified position meaning that Harrington and Kellerman couldn’t be fired without being offered due process.
In its defense against the lawsuit brought by Kellerman and Harrington, the Highway Patrol contended that the rank of major was not a classified position and that neither officer had a “property interest” in their positions.
Further, KHP contended that once demoted from the rank of major – as was the case for Kellerman – plaintiffs were subject to a six-month probationary period from which they could be dismissed without cause.
Kellerman was fired after he agreed to take a demotion to the rank of captain. Harrington resigned when faced with the choice being fired.
“Plaintiffs had no property interest in their positions as majors nor did they have a property
interest in any lower rank within the classified service. The rank of major is not within the
classified service,” the Highway Patrol argued.
However, the Supreme Court saw it differently.
“Ultimately, we hold that the plain language of the statute places KHP majors in the classified service, and this plain language interpretation is bolstered by traditional rules of statutory interpretation,” the court ruled.
The plaintiffs argued in court filings that a Supreme Court decision finding that a major is a “classified position” should work in their favor.
“If the Kansas Supreme Court concludes that the rank of major is a member of the classified service, then the plaintiffs have a property interest and a right to due
process regarding their terminations,” the plaintiff’s lawyers contended.
The Highway Patrol is trying to get the due process claims dismissed, but the lower court delayed a ruling until the Supreme Court ruled on whether the rank of major was a classified position. A status report was to be filed within seven days of the court’s decision.
The Supreme Court’s decision also stands to help former Kansas Highway Patrol Superintendent Mark Bruce in his lawsuit claiming that he was wrongfully forced out as superintendent without returning him to the rank of major.
Bruce filed a federal lawsuit against the governor in 2020, arguing that his right to due process was violated when he was dismissed as superintendent without letting him return to work as a major, a classified position with the Kansas Highway Patrol.
Employed with the Highway Patrol since 1989, Bruce said his retirement from the agency was essentially coerced by the governor’s chief of staff, who he said led him to believe that he was being dismissed from all employment at the KHP.
In sorting out the Bruce lawsuit, a federal judge asked the state Supreme Court to decide whether the rank of major was a classified position.
The judge also wanted to know whether someone who has already achieved permanent status as a classified employee must serve another probationary period.
In his federal lawsuit, Bruce argued that when his term as Highway Patrol superintendent was terminated, he was entitled to be returned to permanent status in the classified service as a major in the agency.
The Supreme Court found that troopers who reach permanent classified status before being appointed to the unclassified position of superintendent must be returned to their classified rank with permanent status after their supervisory term ends.
The court also found that state law also does not require Highway Patrol superintendents or assistant superintendents to serve another six-month probationary period upon returning to their former rank.
An employee serving a probationary period at any time can be dismissed since they don’t have the same typical civil service protections as permanent employees.
The Bruce case was returned to federal court for further adjudication.
