photo by: Mike Yoder

The Douglas County Judicial and Law Enforcement Center, 111 E. 11th St.

A Douglas County sheriff’s deputy wasn’t demoted because he was gay; he was demoted because he didn’t cut it at the police academy, according to a judge’s order closing the man’s federal lawsuit against the county.

Judge Daniel Crabtree has dismissed the one-time deputy’s sex-discrimination claim, brought under federal Title VII, which prohibits discrimination against employees based on sex and other factors. The judge’s order, filed last month in U.S. District Court in Kansas, was in response to the county’s request that the case be decided by the judge and, ultimately, dismissed without going to trial.

Corrections officer Kyle Appleby was promoted to deputy in 2015 and got the accompanying raise for a brief time, contingent on completing training at the Lawrence Police Department academy. When he failed to complete the academy, he was moved back to his corrections officer position and pay.

In Feburary 2017, Appleby sued the County Commission, claiming that he was discriminated against in the form of “sex stereotyping” and that higher ranking sheriff’s employees had previously made offensive comments about his masculinity — including calling him a homosexual slur and saying he had “drag queen eyebrows.”

He also complained that during training his superiors’ comments indicated they thought he was “not sufficiently masculine to be a law enforcement officer,” including that he was “too timid” in certain exercises.

That may be true, according to facts summarized in Crabtree’s recent order. However, the judge said that Appleby’s lawsuit failed to show that such comments factored into his demotion.

“Plaintiff does not assert a hostile work environment or harassment claim based on the alleged offensive comments,” Crabtree wrote.

Furthermore, the judge wrote, Appleby was aware of the sheriff’s office’s written policies prohibiting sexual discrimination and harassment but conceded that he never complained about the comments in accordance with policy.

The judge said facts — including from depositions of Sheriff Ken McGovern, other sheriff’s supervisors, Lawrence Police Department academy trainers and some of Appleby’s friends in the sheriff’s office — showed that Appleby simply failed to perform at the academy and to a degree that was unusual among Lawrence police and sheriff’s deputy recruits.

“The instructors testified about specific examples where plaintiff failed both to meet physical requirements and to perform successfully in scenario training,” Crabtree said. “Some instructors testified that they did not recall any other recruits having performance issues like plaintiff showed. And the summary judgment facts reveal no other recruits at the Academy who displayed poor performance similar to plaintiff.”

Crabtree said that “the decisionmaker” regarding Appleby’s employment, Sheriff McGovern, chose not to retain him as a deputy after receiving reports from academy trainers that his performance at the academy “was deficient and posed a danger to himself, other officers, and the public.”

The judge’s order cites example after example of training scenarios that he failed, from car stops with drugs present to confronting an armed suspect.

“Many of the officers testified that plaintiff’s sexual orientation played no role in their reports, and several officers testified that they never even knew plaintiff is gay,” Crabtree wrote. “Also, McGovern did not know plaintiff’s sexual orientation until he filed this lawsuit. Thus, Sheriff McGovern could not have based his decision on plaintiff’s failure to conform to stereotypical gender norms. Instead, as the undisputed facts establish, Sheriff McGovern based his decision on safety issues and his belief that plaintiff lacked the required skills to protect himself and others.”

Appleby has worked for the sheriff’s office since 2006 and said that he had been openly gay at work since 2008, according to one of his filings in the case. He said that while the sheriff’s office employed openly gay women, he was the only openly gay man and was treated less favorably than those women.

Appleby’s case cited two other female deputies as “similarly-situated” examples that were treated unlike himself. But the judge pointed out that one female deputy who’d been called “girly” at the academy did successfully complete it, and a female deputy who didn’t make the run time successfully completed the rest of the academy.

The judge also rebuffed Appleby’s claim that he was unfairly picked on during a high-pressure week of the academy unofficially referred to as “hell week.”

“Instructors yelled at all recruits — not just plaintiff — especially during officer survival week,” Crabtree wrote.

The judge’s order notes that Appleby testified that he consistently has met or exceeded expectations in his corrections officer performance evaluations including, in 2017, being commended by his supervisor for quick action subduing an inmate.

Back injury claim left open

Appleby’s lawsuit also claimed that he was demoted in retaliation for suffering an on-the-job back injury during the academy, which forced him to sit out for part of the training.

While the federal judge dismissed the federal lawsuit, he declined to specifically rule on the worker’s compensation matter, saying it was for a district court to decide.

“Nothing prevents plaintiff from refiling his state law claim in Kansas court,” Crabtree wrote.

Appleby’s attorney said Tuesday that he was unavailable to discuss the federal lawsuit but that they intend to follow up on the injury issue.

“Mr. Appleby does intend to file a lawsuit in state court with regard to his worker’s compensation retaliation claim,” attorney Michael Stipetich said in an email.

Appleby is still employed by the sheriff’s office, as a corrections officer, Sgt. Kristen Channel, sheriff’s spokeswoman, said this week.

Other than that, no one from the county on Tuesday would comment on the lawsuit’s resolution, including McGovern, County Commission Chairwoman Nancy Thellman and the county’s lawyer in the matter, Michael Seck.

While she, too, declined to comment on the lawsuit, Assistant County Administrator Sarah Plinsky did answer a reporter’s question about who would pay the county’s legal fees in the matter.

Those costs would be paid by the county’s insurance carrier, Plinsky said. She said that for all liability litigation the county is fully insured.