United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
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.”).
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
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
removed the case to this court pursuant to 28 U.S.C. §
1331 and now moves for judgment on the pleadings on all
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.”
Claim Pursuant to K.S.A. § 44-1132
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.
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.
§ 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.
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 ...