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Pattison v. Great-West Financial Retirement Plan Services, LLC

United States District Court, D. Kansas

July 10, 2018

TOM PATTISON, Plaintiff,
v.
GREAT-WEST FINANCIAL RETIREMENT PLAN SERVICES, LLC, Defendant.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE.

         Plaintiff Tom Pattison filed suit against defendant Great-West Financial Retirement Plan Services, LLC, for retaliatory termination. Defendant filed a Motion for Judgment on the Pleadings (Doc. 46) on September 6, 2017. Plaintiff filed a Motion for Extension of Time to File Response as to defendant's motion nearly seven months after it was due. (Doc. 65.) The court denied the motion and will consider defendant's motion as uncontested pursuant to D. Kan. Rule 7.4(b). The court, however, cannot grant defendant's motion solely based on plaintiff's failure to respond. See Issa v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003) (“[E]ven if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted.”).

         I. Background

         The following facts are summarized from those set forth in plaintiff's complaint. Plaintiff claims he was employed by Great-West prior to this suit. In August 2016, plaintiff took time off work to obtain legal relief from his domestic abuser. On August 25, 2016, police arrived at plaintiff's place of work to discuss the domestic abuse situation. Shortly thereafter, plaintiff's supervisor and human resources representatives met with plaintiff and terminated him.

         On March 3, 2017, plaintiff filed suit against defendant for retaliatory termination, claiming defendant violated K.S.A. § 44-1132, which prohibits employers from terminating employees in retaliation for the employee taking time off work to seek legal relief from a domestic abuser. Plaintiff also alleged defendant unlawfully terminated him in violation of a public policy exception to the Kansas employment-at-will doctrine.

         Defendant removed the case to this court pursuant to 28 U.S.C. § 1331 and now moves for judgment on the pleadings on all claims.

         II. Legal Standards

         When considering a Rule 12(c) motion for judgment on the pleadings, the court evaluates the motion under the same standard as a Rule 12(b)(6) motion to dismiss. Turner v. City of Tulsa, 525 Fed.Appx. 771, 772 (10th Cir. 2013). Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Rule 8(a)(2) states that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” To withstand a motion to dismiss under 12(b)(6), a complaint must contain “enough allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.'” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). A claim is plausible when “the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). When the complaint contains well-pled factual allegations, a court should “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

         III. Analysis

         a. Claim Pursuant to K.S.A. § 44-1132

         Plaintiff first claims he was unlawfully terminated under K.S.A. § 44-1132 because he took time off work to seek legal relief from his domestic abuser. Defendant argues this claim should be dismissed because K.S.A. § 44-1132 does not provide a private right of action.

         Whether a private right of action exists under a statute is a question of law. Pullen v. West, 92 P.3d 584, 594 (Kan. 2004). In the absence of express provisions, Kansas courts generally use a two-part test to determine whether the legislature implicitly intended to provide a private right of action: (1) the statute must be designed to protect a specific group of people rather than to protect the general public, and (2) the court must interpret the plain meaning of the text and review legislative history to determine whether a private right of action was intended. Id.

         K.S.A. § 44-1132 does not have an express provision providing a litigant a private right of action. K.S.A. § 44-1127, for example, states “any person aggrieved by an alleged violation of this act [referring to K.S.A. § 44-1126] may bring a civil action in the district court. . . .” (emphasis added). There is no express statement like K.S.A. § 44-1127 in K.S.A. § 44-1132. The legislature did not include an express provision providing a litigant a private right of action in K.S.A. § 44-1132.

         Because no express provision exists, the court must apply the two-part test. First, K.S.A. § 44-1132 was intended to protect a specific group of people rather than the ...


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