(Updated to include comment from Highway Patrol.)
A federal judge has ruled in favor of former Kansas Highway Patrol Superintendent Herman Jones in a lawsuit brought by former and current agency employees who accused him and others of creating a hostile work environment.
U.S. District Judge Holly Teeter granted summary judgment to the state and Jones in the lawsuit brought by six former and current employees of the Kansas Highway Patrol in 2021.
The lawsuit alleged violation of federal anti-discrimination law, the First Amendment and the equal protection clause of the 14th Amendment.
The lawsuit accused Jones of repeatedly touching and hugging female employees against their wishes in an environment where men were treated differently from women.
Teeter found Jones and others were entitled to qualified immunity, meaning that the plaintiffs had to demonstrate a violation of clearly established law to bring a civil action against the officers.
Jones just recently retired from the patrol and his successor, Erik Smith, received tentative confirmation from a Senate committee on Wednesday.
Smith issued a statement Thursday responding to the judgment.
“I am dedicated to fair and transparent leadership at the Kansas Highway Patrol and care deeply about the welfare of all employees serving in this agency,” he said.
“The administration and all agency members will be held to the highest standards of integrity and professionalism,” he said.
Throughout her 46-page opinion handed down on Wednesday, Teeter questioned whether the claims presented in the lawsuit violated the law.
“Plaintiffs fail to identify any clearly established law that aligns with the facts of this case as to any of the First Amendment claims,” Teeter wrote.
The judge also raised questions about the hostile-work-environment claims detailed in the lawsuit and whether they rose to a violation of the law.
For instance, Susan Pfannenstiel, the KHP’s former human resources director, had accused Jones of sending her instant messages that were sexual in nature.
She also accused Highway Patrol Maj. Mike Murphy of grabbing her hands in a way that was overtly sexual.
She also said that Jones and another top KHP official, Lt. Col. Jason DeVore, intimidated her during a February 2020 meeting and that they were wearing their service weapons.
Pfannenstiel also pointed to the “sexually hostile culture” at the KHP, arguing that she was aware of harassing behaviors by Jones directed toward others, including Jones touching two other women, court records show.
The court disagreed.
“The court finds that nothing Pfannenstiel alleges rises to the level of conduct typically considered severe for purposes of a hostile-work-environment claim,” Teeter ruled.
“The only physical incident is the one with Murphy. But that was in the context of him trying to show Pfannenstiel how another employee acted towards him.
“Although Pfannenstiel found the incident to be subjectively disturbing, the facts do not suggest a finding that it was objectively severe,” the judge ruled.
Teeter said that none of the incidents that Pfannenstiel complained about was equal to pervasive harassment.
“At most, she complains of three specific incidents,” Teeter wrote.
“The court finds that this does not rise to the level of objectively pervasive harassment,” Teeter ruled.
Pfannentiel also had alleged that she was forced to quit because of a hostile work environment, another point that Teeter questioned.
“The court is not persuaded,” Teeter wrote.
“First, the court has found that Pfannenstiel was not subjected to an objectively hostile working environment.
“It follows that she has also not shown that she was subjected to working conditions so intolerable that a reasonable person would have been compelled to quit.”
Amber Harrington, a KHP captain at the time the lawsuit was filed, also accused Jones of creating a hostile work environment by touching her three times, including once that had “sexual overtones.”
She also said there were retaliatory acts, including being placed on a performance improvement plan and receiving an unsatisfactory review.
“The Court is dubious that this is sufficient evidence for a jury to conclude that Harrington
experienced a hostile work environment based on sex,” Teeter wrote.
“Harrington acknowledges being touched on other occasions by Jones, and though apparently unwelcome, she does not consider them as sexually motivated,” the judge ruled.
“Harrington cannot create a triable hostile-work-environment claim based on the three incidents of Jones touching her,” the judge wrote.
“None of these events can be characterized as severe, as they all involved touching
on her back or shoulders in the presence of others, and in one instance, Harrington did not even notice the contact,” Teeter wrote.
Another female officer, Natasha McCurdy, claimed a hostile work environment based on Jones giving her three hugs over the course of 10 months and calling out to her “woman, woman, hey woman.”
Again, the court was skeptical of the claim.
“None of the conduct about which McCurdy complains was objectively severe,” Teeter wrote in her opinion.
“Even to the extent they were unwelcome, the hugs McCurdy complains of and the context in which they occurred do not rise to the level of severity typically required to sustain a hostile-work-environment claim,” Teeter ruled.
“McCurdy claims Jones hugged her three times over 10 months. No reasonable jury could find this to be pervasive harassment,” she wrote.
Gov. Laura Kelly stood by Jones throughout the litigation, pointing out that the accusations had been investigated internally by the Department of Administration and another by an independent law firm. Jones was exonerated in those investigations.
Two former Highway Patrol officers who said they were forced out of the patrol filed a separate federal lawsuit contending they were retaliated against for helping the female employees defend themselves against sexual harassment and gender discrimination.
Those officers – former Majs. Scott Harrington and Joshua Kellerman – settled their federal lawsuit against the Highway Patrol, Jones and De Vore.
The settlement agreement reinstated Kellerman effective March 23, 2022, to the rank of unclassified major retroactive to the date he was dismissed on July 23, 2020.
The settlement also reinstated Harrington to the rank of unclassified major effective Oct. 23, 2021, retroactive to the date of the termination on July 23, 2020.
The settlement gave the troopers back pay from the date of their reinstatement to the date they were dismissed in 2020. The troopers received $369,471 in gross pay combined as part of their settlement.
