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Arbogast v. State

United States District Court, D. Kansas

December 28, 2017

KATHLEEN ARBOGAST, Plaintiff,
v.
STATE OF KANSAS, by and through the DEPARTMENT OF LABOR, Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff brings this action against the State of Kansas by and through the Department of Labor, alleging claims of discrimination and retaliation in violation of the Rehabilitation Act, 29 U.S.C. § 794. This matter comes before the Court on Defendants' Motion to Dismiss (Doc. 8), Plaintiff's Motion for Leave to File Surreply Memorandum (Doc. 20), and Defendants' Motion to Strike Surreply (Doc. 23). The motions are fully briefed and the Court is prepared to rule. For the reasons explained below, the Court grants in part and denies in part Plaintiff's motion for leave to file a surreply, denies Defendants' motion to strike as moot, and grants Defendants' motion to dismiss.

         I. Procedural Background and Factual Allegations

         Beginning in April 2001 until August 1, 2011, Plaintiff was employed by Defendant State of Kansas in the Workers Compensation Division of the Kansas Department of Labor (“KDOL”). Plaintiff suffers from asthma, which impairs her breathing. In April 2008, Plaintiff began raising concerns with her supervisors about fragrances in the workplace, which aggravated her asthma. Plaintiff alleges that Defendant KDOL took several measures to alleviate the effects of her asthma in the workplace, but that she continued to have problems.

         On May 23, 2011, Plaintiff requested intermittent leave under the Family and Medical Leave Act (“FMLA”) due to her asthma. Plaintiff's request was denied. On June 3, 2011, Plaintiff filed a complaint with the United States Department of Labor (“DOL”) regarding her denial of leave pursuant to the FMLA. The DOL found that KDOL had violated the FMLA. On July 25, 2011, Plaintiff received a letter from Karin Brownlee, who was then Secretary of KDOL, detailing the chronology of Plaintiff's complaints about the perfume issue and Brownlee's intent to terminate Plaintiff's employment. In response to Brownlee's letter, Plaintiff met with and wrote a letter to Brownlee explaining why she had to continue to complain, outlining her work in the department, and suggesting a possible reassignment as a feasible alternative. A few days later, Plaintiff received a letter from Brownlee explaining that her employment was terminated, effective August 3, 2011, for insubordinate and disruptive behavior.

         Plaintiff appealed her termination to the Kansas Civil Service Board (the “Board”). During her appeal hearing, Plaintiff and KDOL were represented by counsel, several witnesses testified, and evidence was submitted. The Board affirmed Plaintiff's termination in a final order issued on March 9, 2012. Plaintiff did not exercise her right to reconsideration of the Board's order under K.S.A. § 77-529(a).

         Plaintiff originally filed suit in a separate case, No. 13-cv-4007-JAR, against two Defendants: (1) “State of Kansas, Department of Labor, ” and (2) Karin Brownlee. She alleged claims of discrimination and retaliation in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq., claims parallel to those she brings in this case.[1] KDOL moved to dismiss Plaintiff's Complaint on two grounds: (1) it lacked the capacity to be sued under Kansas law, and (2)

         Eleventh Amendment immunity. This Court denied the motion, holding that KDOL waived its Eleventh Amendment immunity when it accepted federal funds, and thus its capacity argument was also ineffectual.[2] On appeal, the Tenth Circuit affirmed the denial of immunity, but declined to address the capacity argument.[3]

         On remand, and after the deadline to amend the pleadings expired, KDOL renewed its motion to dismiss on the grounds that it lacked the capacity to be sued. The Court granted the motion, holding that KDOL lacked the capacity to be sued individually under Kansas law.[4]Plaintiff appealed the Court's ruling, and the Tenth Circuit affirmed.[5] Plaintiff then filed this action against Defendants State of Kansas, by and through the Department of Labor, on June 16, 2017.

         II. Motion for Leave to File Surreply

         Plaintiff moves for leave to file a surreply memorandum to Defendants' motion to dismiss. Plaintiff argues Defendants made two new arguments in their reply, and thus Plaintiff should be given leave to respond to those arguments. Before proceeding to the substance of these arguments, the Court addresses two apparent procedural defects in Plaintiff's motion.

         First, Plaintiff filed her proposed surreply without first obtaining leave from the Court to do so. On November 7, 2017, Plaintiff filed her motion for leave to file surreply, in which she stated that “[t]he surreply memorandum which the plaintiff seeks leave to file is attached to this motion.”[6] But rather than attaching the proposed surreply to her motion, Plaintiff filed her surreply as a separate document without awaiting the Court's ruling on her motion for leave. While the Court does not find that this procedural defect alone warrants denial of Plaintiff's motion, the Court reminds Plaintiff and her counsel that parties must first obtain leave of the Court before filing surreplies.[7]

         Second, Plaintiff filed her motion for leave to file surreply eighteen days after Defendants filed their reply.[8] D. Kan. Rule 6.1(d) provides that the deadline for any replies is 14 days after the service of a response, but Rule 6.1(d) does not provide a deadline for filing surreplies. Thus, although Plaintiff exceeded the time allowed for the filing of any replies when she filed her motion, she did not exceed any deadline explicitly stated in Rule 6.1(d). Accordingly, the Court proceeds to the substance of Plaintiff's motion.

         Under D. Kan. Rule 7.1(c), briefing on motions is limited to the motion and supporting memorandum, a response, and a reply.[9] Surreplies typically are not allowed.[10] Rather, courts “reserve leave for rare circumstances as ‘where a movant improperly raises new arguments in a reply.'”[11] “The rules governing the filing of surreplies ‘are not only fair and reasonable, but they assist the court in defining when briefed matters are finally submitted and in minimizing the battles over which side should have the last word.'”[12]

         Plaintiff argues Defendants make the following two new arguments in their reply regarding the applicable statute of limitations: (1) under K.S.A. § 60-513(b), Kansas courts charge parties with constructive notice of public records; and (2) under K.S.A. § 60-518, the “substantially similar” test does not apply where a defendant in the second suit was not named in the original action. The Court considers these arguments in turn.

         In their reply to Plaintiff's response to the motion to dismiss, Defendants argue that Kansas courts charge parties with constructive notice of public records, and that “a party charged with constructive notice cannot claim ignorance of public records in order to toll the statute of limitations.”[13] Further, Defendants argue that “[w]hether a statute existed giving the Kansas Department of Labor capacity to sue or be sued was a matter of public record, a question of law, not fact, upon which Plaintiff was under constructive notice at all applicable times.”[14]

         In their original memorandum in support of their motion, Defendants argued that “Plaintiff has known all along that the State had something to do with her employment” and that “[t]he law upon which the dismissal of 13-CV-4007 was based was not new.”[15] Thus, Defendants suggested in their original briefing that Plaintiff was on notice all along that the State of Kansas was involved in her termination. But not until their reply did Defendants argue that Plaintiff had constructive notice of the State of Kansas' capacity to be sued, or that this constructive notice barred any tolling under K.S.A. § 60-513(b). Indeed, Defendants did not make any argument as to the effect of § 60-513(b) in their original briefing. Thus, Defendants' argument in their reply as to § 60-513(b) and constructive notice is new.

         Plaintiff's argument that this action was tolled under K.S.A. § 60-513(b) is central to her response to Defendants' motion to dismiss.[16] The Court must therefore consider this argument, and Defendants' arguments regarding § 60-513(b) in their reply, in determining the outcome of Defendants' motion. Because Defendants' arguments as to § 60-513(b) are new, the Court finds that Plaintiff must be given an opportunity to respond. Plaintiff's motion is therefore granted as it relates to Defendants' argument that courts charge parties with constructive notice of public records under K.S.A. § 60-513(b).

         Plaintiff also argues Defendants' argument that the “substantially similar” test does not apply under K.S.A. § 60-518 where a defendant in the second suit was not named in the original action is a new argument that Defendants make for the first time in their reply. But in their original memorandum in support of their motion to dismiss, Defendants argued that “K.S.A. [§] 60-518 does not apply because the parties are obviously not the same in this action as in the previous action.”[17] Specifically, Defendants cited the following passage from Taylor v. International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, AFL-CIO[18] in arguing that § 60-518 does not apply:

The savings statute applies only if the original action and subsequent action are substantially the same. Where the parties and the relief sought in the new action are different from those in the original action, the actions are not substantially the same, and the savings statute does not apply. In addition, where the relief sought is the same in both actions, but the defendants are different, the actions are not substantially the same for purposes of the saving statute.[19]

         As this passage demonstrates, Defendants argued in their original brief that actions are not “substantially the same” for purposes of § 60-518 when a new defendant in the second suit was not named in the original action. Accordingly, the Court finds that Plaintiff was on notice of this argument at the time of her response, and therefore the Court denies Plaintiff's motion for leave to file a surreply as it relates to this argument.

         In sum, Plaintiff was not on notice of Defendants' argument that Kansas courts charge parties with constructive notice of public records under K.S.A. § 60-513 when she filed her response. Plaintiff's motion is therefore granted as it relates to this argument. She was, however, on notice of Defendants' argument that actions are not “substantially similar” under § 60-518 where a defendant in a second action was not named as a defendant in the original action. The Court therefore denies Plaintiff's motion as it relates to this argument. Because Plaintiff previously filed her surreply, she need not re-file the document with the Court. The Court has considered Plaintiff's arguments in her surreply related to § 60-518.

         III. Motion to Strike

         Defendants move to strike Plaintiff's surreply, arguing that it is untimely and filed without leave of the Court. The Court has considered these arguments above, and has granted in part and denied in part Plaintiff's motion for leave to file a surreply.[20] Accordingly, the Court denies Defendants' motion to strike as moot.

         IV. Motion to Dismiss

         Defendants move to dismiss Plaintiff's Complaint under Fed.R.Civ.P. 12(b)(6) because it is untimely and because it otherwise fails to state claims of discrimination or retaliation under the Rehabilitation Act. Plaintiff responds that her Complaint was timely filed and that it states claims for both discrimination and retaliation under the Rehabilitation Act.

         A. Legal Standard

         To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must present factual allegations, assumed to be true, that “raise a right to relief above the speculative level” and must contain “enough facts to state a claim to relief that is plausible on its face.”[21] “[T]he complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[22] The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than “a sheer possibility.”[23] “[M]ere ‘labels and conclusions, ' and ‘a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim.”[24] Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.[25]

         The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but] we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'”[26] Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.[27] Second, the court must determine whether the factual allegations, when assumed true, “plausibly give rise to an entitlement to relief.”[28] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[29]

         B. Discussion

         1. Application of K.S.A. § 60-513(b)

         “For federal causes of action created prior to 1990 for which ‘Congress has not established a time limitation for a federal cause of action, the settled practice [is] to adopt a local time limitation as federal law if it is not inconsistent with federal law or policy to do so.'”[30]Under K.S.A. § 60-513(a)(4), “an action for injury to the rights of another, not arising on contract, and not herein enumerated, ” must be brought within two years. In Levy v. Kansas Department of Social and Rehabilitation Services, the Tenth Circuit held that Rehabilitation Act claims are subject to the two-year statute of limitations under K.S.A. § 60-513(a)(4).[31] The parties here agree that § 60-513(a)(4) provides the applicable statute of limitations for Plaintiff's Rehabilitation Act claims.[32] Accordingly, the Court finds that Plaintiff's claims are subject to the two-year statute of limitations under § 60-513(a)(4).

         “[W]hen a federal statute is deemed to borrow a State's limitations period, the State's tolling rules are ordinarily borrowed as well because ‘[i]n virtually all statutes of limitations the chronological length of the limitation period is interrelated with provisions regarding tolling.'”[33] K.S.A. § 60-513 incorporates the following tolling provision:

(b) Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.[34]

         Defendants argue that the tolling provision under § 60-513(b) does not apply here because Plaintiff was aware of her injury at the time of her termination in August 2011. Defendants contend that this accrual date is consistent with Levy, in which the Tenth Circuit found that the plaintiff's Rehabilitation Act claims accrued on the date of employment termination.[35] Plaintiff argues that an injury is not “reasonably ascertainable” under § 60-513(b) until a plaintiff learns that the injury is caused or associated with some act of the defendant.[36]She contends her claim did not accrue until June 2015, when the Tenth Circuit issued its decision in her previous case and held that KDOL's capacity to be sued was an issue separate from KDOL's sovereign immunity. She argues that it was not reasonably ascertainable until that time that her injury was caused by an act of the State of Kansas.

         Defendants cite Wille v. Davis, an unpublished Tenth Circuit opinion in which the court explained that “the term ‘reasonably ascertainable' carries with it an obligation to investigate available factual sources.”[37] In Wille, the plaintiffs were members of a class of 300 plaintiffs in a previous case that was the subject of a global settlement in 2002.[38] The Tilzers, who were also plaintiffs in the class settlement group, filed a legal malpractice suit against the class attorney in 2003, alleging that the global settlement agreement was “governed by Rule 4-1.8(g) of the Missouri Rules of Professional Conduct, and that [the class attorney] failed to make the disclosures required by that rule.”[39] In April 2009, the Kansas Supreme Court ruled the settlement agreement was an aggregate settlement agreement and thus the class attorney was required to make disclosures under Rule 4-1.8(g).[40] The pleadings in the Tilzer case, however, were filed under seal, and the Tilzers' attorney was barred from contacting any of the other plaintiffs involved in the global settlement until December 2009.[41]

         After the Tilzers' attorney contacted the plaintiffs in Wille about the Tilzer case in 2011, the plaintiffs filed their own legal malpractice claims against the class attorney on September 29, 2011.[42] The defendant moved for summary judgment, arguing that the plaintiffs' claims were time barred.[43] The plaintiffs argued that under § 60-513(b), they could not have discovered their injury until they were contacted by the Tilzers' attorney and learned about the Kansas Supreme Court's decision in that case.[44] The plaintiffs argued that the decision in the Tilzers' case “imparted knowledge of facts that were not previously known.”[45] Affirming the district court's grant of summary judgment in favor of the defendant, the Tenth Circuit explained that even assuming the plaintiffs' injuries were not reasonably ascertainable until the Tilzer decision, the plaintiffs' claims were time barred because they filed their claim more than two years after the Tilzer decision was issued in April 2009.[46] The court held that because “Kansas courts charge parties with constructive notice of public records . . . [a]ny facts disclosed by the Tilzer case were a matter of public record as soon as the decision was issued by the Kansas Supreme Court.”[47] Thus, the accrual date for the plaintiffs' injuries was in April 2009, rather than in 2011 when the Tilzers' attorney informed the plaintiffs of the result in that case.

         Defendants argue that as in Wille, Plaintiff here had constructive notice at all times of “[w]hether a statute existed giving the Kansas Department of Labor capacity to sue or be sued at law.”[48] Thus, her claim accrued at the time of her termination in 2011. Plaintiff, however, argues that Wille supports her position because the Tenth Circuit's 2015 decision in her previous case “imparted knowledge of facts that were not previously known.”[49] Specifically, she contends

[t]he facts which were not previously known are that the acceptance of federal funds by the Kansas Department of Labor (“KDOL”) does not render ineffectual KDOL's arguments regarding its lack of capacity to be sued; or in other words, that the issue of the KDOL's lack of capacity is separate from the issue of the KDOL's waiver of sovereign immunity.[50]

         Defendants respond that the Wille decision did not find that the plaintiffs' claims accrued at the time of the Tilzer decision, but simply “assumed, ” in dicta, that the Tilzer decision provided them with knowledge of new facts. Additionally, Defendants argue that the Tenth Circuit's decision did not impart any knowledge of new facts, but instead simply raised an issue of law regarding KDOL's capacity to be sued. Finally, Defendants contend that they raised the capacity issue as a question separate from KDOL's immunity ...


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