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Coleman v. Unified Government of Wyandotte County

United States District Court, D. Kansas

October 29, 2018

TODD M. COLEMAN, Plaintiff,
v.
UNIFIED GOVERNMENT OF WYANDOTTE COUNTY, ET AL., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff Todd Coleman, proceeding pro se and in forma pauperis, brought this action against Defendants Unified Government of Wyandotte County and Kansas City, Kansas Fire Department (hereinafter referred to collectively as “Government Defendants” and individually as “Unified Government” and “KCK Fire”); International Association of Firefighters Local 64 and Robert Wing (hereinafter referred to collectively as “Union Defendants” and individually as “IAFF Local 64” and “Wing”), and Blake & Uhlig, P.A. and Scott Brown (hereinafter referred to collectively as “Attorney Defendants” and individually as “Blake & Uhlig” and “Brown”). Plaintiff alleges civil rights and state law tort claims against Defendants. Before the Court are the Government Defendants' Motion to Dismiss (Doc. 17), the Attorney Defendants' Motion to Dismiss (Doc. 18), and the Union Defendants' Motion to Dismiss (Doc. 34), all brought pursuant to Fed.R.Civ.P. 12(b)(6). The motions are fully briefed, [1] and the Court is prepared to rule. As described more fully below, the Court grants Defendants' motions to dismiss.

         I. Factual Background

         Unless otherwise stated, the following facts are drawn from Plaintiff's Complaint and construed in the light most favorable to Plaintiff.[2]

         Plaintiff Todd M. Coleman is a former firefighter with KCK Fire. On July 28, 2016, Coleman attended a meeting at the fire department headquarters where he answered questions regarding his residency. When asked, he did not deny that he owned out-of-state property, which he had purchased from his mother in 2012. Fire Chief John Paul Jones produced a picture of a piece of property, contending it was the property in question. Coleman informed him that the picture did not portray his property. Fire Chief Jones asked again if it was the correct property, and Coleman again informed him that it was not. At the end of the meeting, Coleman was suspended, without pay, pending termination and the outcome of the investigation.

         Immediately following the meeting, Coleman filed a grievance of his suspension pursuant to the procedure in the Memorandum and Agreement between IAFF Local 64 and the Unified Government. IAFF Local 64 is the union that represents firefighters and paramedics employed by KCK Fire in contract negotiations and grievance procedures. Plaintiff provided IAFF Local 64 documentation supporting his residency. Plaintiff claimed he met the requirements in the Unified Government's residency policy, and that he was temporarily using the garage and basement of his out-of-state property to run a non-profit lawn service.

         In August 2016, Coleman met with IAFF Local 64 business manager Robert Wing[3] and learned the union was going to process his grievance. Coleman asked Wing if he should bring his own counsel. Wing informed him that others who have done so have regretted the decision and explained that interference from an outside lawyer, other than one IAFF Local 64 provided, would cause them to relinquish the case and absolve IAFF Local 64 of any responsibility.

         On October 19, 2016, Coleman, IAFF Local 64 representatives, and Unified Government representatives met with a mediator. The Unified Government representatives indicated that they believed Coleman (1) violated the Unified Government's residency policy; (2) hurried to put together contrary evidence; and (3) did not spend fifty-percent of his time within the Wyandotte County limits. Plaintiff states the Unified Government's residency policy does not require employees to spend fifty-percent of their time within Wyandotte County limits. At the end of the meeting, the mediator requested a copy of the Unified Government's investigation file of Coleman.

         At a December 12 meeting, Coleman received a large file containing the Unified Government's investigation. He learned the investigation began with an anonymous email. Coleman was allowed forty-five minutes to an hour to write down inconsistencies and disagreements with the investigation. During his review, Coleman found ten inconsistencies. The Unified Government also gave him a compact disc, but Coleman did not have the proper equipment to view its contents at the time. IAFF Local 64 and Wing refused to turn over the investigation file to Coleman again to review.

         During a meeting on December 22, Wing asked Fire Chief Jones how the Unified Government's residency policy applied to new hires and to those who had served at the fire department for some years. Fire Chief Jones told Wing that the policy had always been enforced consistently and resulted in termination if violated. However, according to Plaintiff, ranked members have been contacted by on-duty agents concerning residency and received the opportunity to remedy the situation if their residency was an issue. At the December 22 meeting, Coleman raised his concern that the residency policy violated the Constitution. The meeting concluded with Wing asking the Unified Government for a return-to-work agreement for Coleman, but he received no response. On December 23, Wing notified Coleman that he was going to meet with the Unified Government County Administrator about a “last chance” agreement. Coleman never learned whether this meeting occurred.

         Wing informed Coleman on January 1, 2017, that he was going to appeal the issue to Step 4 of the grievance procedure, which is arbitration. He offered to continue to pursue a settlement agreement, but thought “it need[ed] to move onto final resolve.”[4] Wing engaged IAFF Local 64's counsel, Scott Brown of Blake and Uhlig, to assist the union leading up to arbitration.

         In June 2017, Brown met with Coleman and informed him that he was going to ask Unified Government for copies of the investigation and that it would take him about a week to go through it. On July 10, Wing informed Coleman that the Unified Government was not cooperating with the information request and that the arbitrator could order them to comply. On July 25, Wing informed Coleman that he would file a charge with the Public Employees Relation Board (“PERB”) if they had not received the Unified Government's documents by July 28.

         During an August 2017 meeting, Brown asserted that the Unified Government believed Coleman did not spend fifty-percent of his time in Wyandotte County and that he would argue against the fifty-percent policy. On September 11, Wing informed Coleman that Brown was drafting an opinion letter as to the merits of the grievance.[5] Coleman received the opinion on September 29 and sent a “scathing email” to Wing on October 26.[6]

         On October 30, 2017, Coleman filed a charge against IAFF Local 64 with the National Labor Relations Board (“NLRB”) for engaging in unfair labor practices; the NLRB dismissed the claim for lack of jurisdiction. Coleman then filed a claim with the Kansas PERB on December 14, 2017, but it was dismissed because the Kansas PERB does not handle disputes against labor unions. On February 14, 2018, Wing informed Coleman that IAFF Local 64 withdrew his grievance with the Unified Government for lack of merit.

         II. Standard

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”[7] It must provide sufficient factual allegations to “give the defendant fair notice” of the grounds for the claim against them.[8] To survive a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), a complaint must include “enough facts to state a claim to relief that is plausible on its face, ” rather than just conceivable, and “raises a right to relief above the speculative level.”[9] Under the plausibility standard, if allegations “are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'”[10] The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires “more than a sheer possibility.”[11] As the Supreme Court has explained, “[a] pleading that offers ‘labels and conclusions' or a ‘formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'”[12] All of the plaintiff's factual allegations are presumed true and construed in a light most favorable to the plaintiff.[13]

         Because Plaintiff is a pro se litigant, the Court construes his pleadings liberally and holds them to a less stringent standard than those drafted by lawyers.[14] However, the Court may “not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.”[15] As an initial matter, Plaintiff cites to various exhibits in his Complaint and Responses; however, as no exhibits have been filed, the Court does not consider those references in its decision.

         III. Discussion

         The Court liberally construes Plaintiff's Complaint as alleging claims under 42 U.S.C. § 1983 in addition to Kansas state law tort claims. Plaintiff alleges Defendants violated both his substantive and procedural due process rights under the Fifth Amendment. Additionally, Plaintiff alleges Kansas state law claims for fraud and intentional infliction of emotional distress. Defendants move to dismiss Plaintiff's Complaint for failure to state a claim upon which relief may be granted.

         A. Section 1983 Claims

         1. Defendants Brown, Blake & Uhlig, IAFF Local 64, and Robert Wing

         Plaintiff fails to state a claim under § 1983 against the Union and Attorney Defendants because on the face of the Complaint, there are insufficient facts to deem these Defendants state actors. To bring a § 1983 claim, Plaintiff must show there has been a “deprivation of a civil right by a ‘person' acting under color of state law.”[16] “Private individuals and entities may be deemed state actors, however, if they have ‘acted together with or [have] obtained significant aid from state officials, or [if their] conduct is otherwise chargeable to the state.'”[17] The Supreme Court has developed four tests to determine whether private actors should be considered state actors for purposes of § 1983 liability: “(1) the public function test, (2) the nexus test, (3) the symbiotic relationship test and (4) the joint action test.”[18] However, when a plaintiff attempts to assert state action by alleging a conspiracy between private defendants and “state officials or judges, ” “mere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action.”[19] Plaintiff's Complaint is devoid of specific facts suggesting the Defendants at issue are state actors.

         Here, assuming the facts alleged in the Complaint are true, the Union Defendants cannot be state actors. Generally, labor unions such as IAFF Local 64 are not state actors absent a showing that the union acted in concert with the state.[20] Plaintiff's alleged facts do not lead to an inference that the Union Defendants engaged in concerted action with the Unified Government.[21]Plaintiff's argument that the Union Defendants are state actors conflates the Union Defendants' conduct with that of the Government Defendants. Citing the “state compulsion test, ” Plaintiff argues the Unified Government coercively used its statement that Plaintiff did not spend fifty-percent of his time in Wyandotte County to achieve “alternative goal concerning policy.”[22]However, he does not allege facts that lead to an inference that the Unified Government coerced the Union Defendants' actions.

         Plaintiff also attempts to argue that the facts satisfy the “symbiotic relationship test, ” “entwinement test, ” and “joint participation test” by showing mutual interdependence between IAFF Local 64 and the Unified Government.[23] He argues that private employees of IAFF Local 64 are state employees, and that the duties of the employees are interdependent of one another. He further theorizes that because of the collective bargaining agreement and IAFF Local 64 members' statuses as public employees, the Union Defendants are state actors. However, this ignores the fact that the Unified Government and IAFF Local 64 are different entities, with different rights and obligations under the collective bargaining agreement, and further disregards the adversarial nature of the relationship between a union and its members' employer. Without additional facts, the existence of a collective bargaining agreement negotiated with a governmental entity is insufficient to infer that a union is a state actor.[24] Beyond conclusory allegations, Plaintiff does not provide any additional facts that would transform IAFF Local 64's actions into state action. Therefore, Plaintiff's Complaint contains no factual allegations that the Union Defendants acted closely with state officials or engaged in conduct chargeable to the state, and thus fails to establish an inference that the Union Defendants acted under the color of state law.

         Plaintiff also argues that the Attorney Defendants are state actors because they provide legal advice and representation to the Union Defendants. This theory necessarily requires that IAFF Local 64 be a state actor. As previously discussed, the alleged facts, even when presumed true and construed in a light most favorable to Plaintiff, do not support a finding that the Union Defendants are state actors. Further, even if the Union Defendants were state actors, an attorney does not act under the color of state law by representing a client.[25] Moreover, the Attorney Defendants' involvement with collective bargaining agreements and grievance procedures do not create state action, particularly when Plaintiff has alleged no additional facts that would indicate concerted action to deprive Plaintiff of his rights. Thus, the Attorney Defendants are also not state actors, and the Court dismisses Plaintiffs § 1983 claims against both the Union Defendants and the Attorney Defendants for failure to state a claim.

         2. Defendants Unified Government and KCK Fire

         a. Substantive Due Process

         Plaintiff alleges he was the victim of “bad faith, outrageous government conduct and manifest injustice, ” as well as “overt acts of fraud” and “illegal and unethical conduct.”[26] The Court construes this as Plaintiff asserting a substantive due process claim. The Government Defendants argue that Plaintiff has not pleaded facts that give rise to an inference of a violation of his right to substantive due process. The Court agrees and finds that Plaintiff's Complaint fails to state a substantive due process claim against the Government Defendants.

         “A Fourteenth Amendment substantive due process claim arises when a plaintiff alleges the government deprived him of a fundamental right.”[27] Substantive due process typically arises in situations involving “marriage, family, procreation, and the right to bodily integrity.”[28] In the context of public employment, “[a] public employee with a property interest in continued employment has a substantive-due-process right not to be terminated for arbitrary or capricious reasons.”[29] Thus, to establish a substantive due process claim, a plaintiff must plead facts to show that the government's action was arbitrary, capricious, or without a rational basis.[30]Government action is arbitrary where it “shocks the conscience.”[31]

         Plaintiff's Complaint lacks facts to support the conclusion that the Government Defendants' actions were arbitrary, irrational, or conscience-shocking. To demonstrate that the government violated substantive due process rights, “a plaintiff must do more than show than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.”[32] Plaintiff's Complaint seems to allege that the Government Defendants violated his substantive due process rights by claiming that Plaintiff violated the residency policy because he did not spend fifty-percent of his time within Wyandotte County limits. Plaintiff asserts that because he provided documents to the Government Defendants establishing his Wyandotte County residency, the decision to suspend him without pay and his eventual termination were contrary to the facts. However, Plaintiff does not allege facts suggesting that the Government Defendants irrationally concluded he was not in compliance with the Unified Government's residency policy. To the contrary, Plaintiff's Complaint identifies that he admitted to owning property in another state which he had purchased from his mother in 2012 and used to run a non-profit lawn service. Similarly, with respect to the extended grievance procedures and delay in arbitration proceedings, Plaintiff failed to plead facts that lead to an inference that the Government Defendants took actions that wrongly interfered with his substantive due process rights. None of their actions were conscience-shocking. Therefore, even when taken in the light most favorable to him, Plaintiff's facts cannot lead to an inference the Government Defendants irrationally or arbitrarily suspended and terminated his employment.

         However, even if the Government Defendants incorrectly concluded that Coleman violated the residency policy and inconsistently applied its residency policy, these facts do not demonstrate the decision to suspend and ultimately terminate him was arbitrary, irrational, or conscience-shocking. “[T]he Due Process Clause does not protect against ‘wrong' decisions, only ‘arbitrary' ones.”[33] It protects against governmental abuse of power, and is “not a guarantee against incorrect or ill-advised personnel decisions.”[34] At best, these facts suggest an inference that the Government Defendants incorrectly decided to suspend and ultimately terminate Plaintiff. Therefore, the Government ...


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