KRYSTAL L. BOXUM-DEBOLT, et al., Plaintiffs,
OFFICE OF THE DISTRICT ATTORNEY, 3RD JUDICIAL DISTRICT OF KANSAS (SHAWNEE COUNTY DISTRICT) ATTORNEY’S OFFICE, et al.,
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
Krystal L. Boxum-Debolt and Lisa Anne Moore bring suit against the Office of the District Attorney, 3rd Judicial District of Kansas (“DA’s Office”); Chadwick J. Taylor, District Attorney for the 3rd Judicial District of the State of Kansas, in his official and individual capacities; Shawnee County, Kansas; and Shawnee County Board of Commissioners Ted Ensley, Mary M. Thomas and Shelly Buhler, in their official and individual capacities. See Complaint (Doc. #1) filed October 1, 2012. Under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., plaintiffs assert claims for gender discrimination (Count I), associational discrimination (Count II) and retaliation (Count III). Under 42 U.S.C. §§ 1983 and 1985, plaintiffs claim that defendants violated their constitutional rights to substantive and procedural due process, freedom of speech and equal protection (Count IV) and conspired to violate those rights (Count V). Under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., plaintiffs claim that defendants willfully denied overtime wages (Count VI). This matter comes before the Court on the Motion Of Defendants Taylor And DA’s Office To Dismiss (Doc. #11) filed November 13, 2012 and the Motion To Dismiss Of Defendants, Shawnee County, Kansas And Shawnee County Board Of Commissioners, Ted Ensley, Mary M. Thomas And Shelly Buhler (Doc. #13) filed November 27, 2012. For reasons stated below, the Court sustains the motions in part.
I. Legal Standards
In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes as true all well-pleaded factual allegations and views them in the light most favorable to the nonmoving party to determine whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible – and not merely conceivable – on its face. Id. at 679-80; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Iqbal, 556 U.S. at 679.
The Court need not accept as true those allegations which state only legal conclusions. See id.; Hall v. Bellmon, 935 F.3d 1106, 1110 (10th Cir. 1991). Plaintiffs bear the burden of framing their complaint with enough factual matter to suggest that they are entitled to relief; it is not enough to make threadbare recitals of a cause of action accompanied by conclusory statements. Twombly, 550 U.S. at 556. Plaintiffs make a facially plausible claim when they plead factual content from which the Court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiffs must show more than a sheer possibility that defendants have acted unlawfully – it is not enough to plead facts that are “merely consistent with” defendants’ liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Iqbal, 556 U.S. at 678. Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere possibility of misconduct, the complaint has alleged – but has not “shown” – that the pleaders are entitled to relief. Id. at 1950. The degree of specificity necessary to establish plausibility and fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2), Fed. R. Civ. P., depends on the type of case. Robbins v. Okla., 519 F.3d 1242, 1248 (10th Cir. 2008) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008)).
Plaintiffs allege the following facts:
The DA’s Office is a separate, subordinate agency of the State of Kansas. Complaint (Doc. #1) ¶ 4. At all relevant times, Taylor was the District Attorney for Shawnee County. Id. ¶ 5.
Shawnee County is a county of the State of Kansas, created, organized, existing and operating pursuant to the laws of Kansas. Id. ¶ 6. At all relevant times, Ensley, Thomas and Buhler were members of the Board of County Commissioners and/or individual county commissioners of Shawnee County. Id. ¶ 7.
Plaintiffs are Caucasian females. Id. ¶ 15. At all relevant times, defendants jointly and/or individually employed plaintiffs as victim/witness specialists. Id. ¶¶ 1-2. During their employment, plaintiffs performed all duties as required and exceeded the expectations of their positions. Id. Plaintiffs routinely worked more than 40 hours per week without overtime compensation. Id. ¶ 18.
In the spring of 2010, plaintiffs reported gender discrimination and other unethical and illegal conduct, including that defendants were discriminating against female employees by not providing an appropriate location to breast feed or pump. Id. ¶ 23. In response, defendants ridiculed plaintiffs and said that Moore must not have enough work to do. Id. ¶ 24.
In the middle of July 2010, plaintiffs reported serious violations of law and public policy, including the improper conduct of their supervisor. Id. ¶ 25. Specifically, plaintiffs reported that their supervisor improperly used her position to coerce a Hispanic employee, her family and the widow of a Hispanic murder victim to clean her home. Id. ¶ 26. Plaintiffs spoke truthfully about matters of public concern and reported illegal acts involving defendants’ managers and officials. Id. ¶ 28.
In response to the complaints, defendants retaliated against plaintiffs with regard to the terms and conditions of their employment. Id. ¶ 27. Almost immediately, defendants suspended plaintiffs’ employment. Id. ¶ 29. As of August 2, 2010, defendants terminated plaintiffs’ employment. Id.
As noted, under Title VII, plaintiffs assert claims of gender discrimination (Count I), associational discrimination (Count II) and retaliation (Count III). Under 42 U.S.C. §§ 1983 and 1985, plaintiffs claim that defendants violated their constitutional rights to substantive and procedural due process, freedom of speech and equal protection (Count IV) and conspired to violate those rights (Count V). Under the FLSA, plaintiffs claim that defendants willfully denied them overtime wages (Count VI). Although defendants’ motions do not delineate plaintiffs’ claims, it appears that they seek dismissal of all claims.
A. Motion To Dismiss By Taylor And The DA’s Office
Taylor and the DA’s Office seek dismissal of plaintiffs’ claims on grounds that (1) plaintiffs do not constitute “employees” under Title VII and the FLSA; (2) the DA’s Office is not a legal entity subject to suit; (3) the Eleventh Amendment bars claims against Taylor in his official capacity;
(4) plaintiffs do not state claims for violation of First Amendment and Title VII rights; (5) Taylor is entitled to qualified immunity on constitutional claims against him individually; (6) plaintiffs do not have standing to assert grievances of third ...