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Hawkins v. Board of County Commissioners of Coffey County Kansas

United States District Court, D. Kansas

March 19, 2019

LAURA HAWKINS, Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF COFFEY COUNTY KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.

         Laura Hawkins brings suit against the Board of County Commissioners of Coffey County, Christopher Phelan, Karen Maley and Brenda Cherry. Under 42 U.S.C. § 1983, plaintiff asserts that in terminating her employment, the Board, Phelan and/or Maley violated her constitutional rights to free speech, procedural due process and equal protection. In addition, against the Board and Cherry, plaintiff asserts claims for straight and overtime wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the Kansas Wage Payment Act (“KWPA”), K.S.A. § 44-313 et seq. This matter is before the Court on Defendant's Motion For Partial Dismissal (Doc. #43) filed August 10, 2018. For reasons stated below, the Court sustains the motion in part.

         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 determines whether they plausibly give rise to an entitlement of relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 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). To determine 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.2d 1106, 1110 (10th Cir. 1991). Plaintiff bears the burden of framing her complaint with enough factual matter to suggest that she is 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. Plaintiff makes a facially plausible claim when she pleads factual content from which the Court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Plaintiff 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 that 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 pleader is entitled to relief. Id. at 679. The degree of specificity necessary to establish plausibility and fair notice depends on context; what constitutes fair notice under Fed.R.Civ.P. 8(a)(2) depends on the type of case. Robbins v. Okla., 519 F.3d 1242, 1248 (10th Cir. 2008) (citing Phillips v. Cty. of Allegheny, 515 F.3d 225, 232-33 (3d Cir. 2008)).

         Facts

         Plaintiff alleges the following facts.

         For over nine years, plaintiff worked as a clerk in the County Treasurer's office for Coffey County, Kansas.[1] First Amended Complaint (Doc. #39) ¶ 7. The County Treasurer, an elected official, heads the office. Id. ¶ 7. Plaintiff did not ask the County to assign her to work in a department headed by an elected official. Id. ¶ 9. When the County hired plaintiff, it did not tell her that because she worked under an elected official, it would treat her differently than county employees who did not work under elected officials. Id.

         The County issued plaintiff a handbook. Id. ¶ 9. The handbook does not state that some policies apply only to employees who do not work for elected officials. Id. ¶ 9. Through the handbook and its practices, the County created an implied contract that it would not fire plaintiff (1) except for cause; (2) for performance-related reasons without a pre-termination hearing; or (3) because of political activity. Id. ¶ 56.

         The County's Policy and Procedures Manual (“PPM”) contains many of the County's personnel policies and procedures.[2] Id. ¶ 29. Plaintiff accepted and continued her employment with the County in part based on promises contained in the PPM and personnel customs of the County. Id. The PPM states as follows:

The County shall not abridge the rights of Employees to engage in political activity, including the holding [of] public office, except as specifically included in this [manual.]… Employees are neither appointed to, nor retained in, county service based upon their political affiliation or activity, with the exception of Officials who serve at the pleasure of their constituency.

Id. ¶ 30. The PPM further provides that (1) it intends to ensure that employee retention and separation are based upon an employee's qualifications and fitness and compliant with federal and Kansas laws; (2) it applies to all employees; (3) the tenure of County employees shall be based on reasonable standards of job performance and personal and professional conduct; (4) terminations that are not for cause are discouraged; and (5) terminations by supervisors are subject to Standards of Conduct and Discipline and Grievance Procedures.

         The PPM outlines Standards of Conduct, i.e. “standards for high quality work performance and conduct, ” as performance expectations which employees must meet or possibly face discipline, including discharge. Id. ¶ 36. When the County discharges, suspends or demotes an employee for poor performance or violation of the Standards of Conduct, the PPM provides a mandatory pre-disciplinary hearing. Id. ¶ 37. If the County discharges an employee for disciplinary reasons, the PPM provides a right to notice and a hearing, representation by counsel, written notice of the reasons for discharge and an explanation of the evidence. Id. In addition, the PPM provides a right to present oral or written reasons why the County should not suspend or discharge the employee. Id. In discharging plaintiff, the County used none of these procedures. Id.

         The PPM also provides a grievance procedure “to be utilized specifically for claims or dispute by an employee with respect to the interpretation, meaning or application of the provisions of county departmental policies and procedure and does not [include] ADA, disciplinary action, sexual harassment or staffing and salary disputes . . . .” Id. ¶ 38. The PPM states that “terminations by Supervisors [are] subject to the Standards of Conduct and the Grievance Procedures.” Id. An employee may initiate a grievance by making a complaint to her supervisor. Id. ¶ 41. If the supervisor is the subject of the grievance, the employee may go to the County Attorney “for advice and counsel on how to enter the Grievance Procedure.” Id.

         With regard to employees who do not work for elected officials, the County follows its policies and procedures and allows those employees to file grievances and have pre-termination hearings regarding disciplinary discharges. Id. ¶ 64. With regard to employees who work for elected officials, the County does not require adherence to its policies and procedures and does not provide pre- or post-termination hearings regarding discharges. Id. ¶ 65.

         While plaintiff worked for the County, she complained to Christopher Phelan, the County Attorney, about various personnel decisions which she believed violated anti-discrimination laws and/or county policies. Id. ¶ 10. Phelan said that he could not help because elected officials could do whatever they wanted. Id. Phelan stated that it would be different if plaintiff worked in a department headed by an appointed official, but different rules applied for employees who worked for elected officials. Id. The County treated employees who worked in departments headed by non-elected officials more favorably than employees who worked in departments headed by elected officials. Id. ¶ 11.

         From 2012 to 2017, Brenda Cherry served as County Treasurer and supervised plaintiff's employment. Id. ¶ 6. From 2014 to 2016, when plaintiff reported on her time card that she worked through lunch or other overtime hours, Cherry would “white out” the extra time to deprive plaintiff of overtime pay. Id. ¶ 14. Although Cherry knew that plaintiff was working during that time, she forbid plaintiff from recording time which she worked during her lunch hour. Id. Every day, plaintiff arrived to work 15 to 20 minutes early and spent the extra time working. Id. Cherry instructed plaintiff to wait on customers who arrived before 8:00 a.m. Id. Cherry knew that plaintiff worked during that time and did not pay her regular or overtime wages. Id.

         In 2016, plaintiff ran against Karen Maley in the Republican primary for the position of County Treasurer.[3] Id. ¶ 17. Maley won the primary and became the Republican candidate. Id. In the general election, plaintiff campaigned as a write-in candidate for County Treasurer. Id.

         During the campaign and outside of the office, plaintiff accused the Treasurer's office of “playing favorites.” Id. ¶ 20. Plaintiff said that the office applied rules differently and treated some citizens more favorably than others. Id. Plaintiff vowed to treat all citizens the same. Id. Also, plaintiff “took issue with the County's practice of not encouraging elected officials to make personnel decisions ‘subject to' the County's policies and procedures.” Id. ¶ 21. Among other places, plaintiff expressed this opinion at a candidate forum in front of Maley and Phelan. Id. In addition, plaintiff criticized County employees for campaigning and writing a letter to the newspaper editor while using County employee titles. Id. ¶ 22. Plaintiff said that such conduct violated County policies and that the County paid employees while they were campaigning. Id.

         Maley won the general election for County Treasurer.[4] Her term was set to begin in October of 2017. Id. ¶ 17.

         In early 2017, Cherry resigned from her position as County Treasurer.[5] Id. ¶ 23.

         On January 30, 2017, the Board of County Commissioners of Coffey County met in an executive session to discuss terminating plaintiff's employment. Id. ¶ 24. The Board and Phelan knew that plaintiff had unsuccessfully challenged Maley in the election.

         On February 1, 2017, Maley was sworn in as County Treasurer. Id. ¶ 23.

         The same day, as her “first executive order, ” Maley fired plaintiff. Id. ¶ 26. Prior to meeting with plaintiff, Maley had procured plaintiff's final paycheck and drafted a termination letter which stated as follows:

Effective immediately, you are hereby dismissed from your job duties in the Coffey County Treasurer's office. Pursuant to KSA 19-503(a), I am exercising my right to appoint, promote, demote and dismiss all assistants. You are hereby allowed 15 minutes to gather your personal belongings and return any and all keys to the office and/or building. Enclosed is your final check.

Id. The County and Phelan assisted Maley by helping her draft the termination letter and by providing an early paycheck for plaintiff. Id. ¶ 51. The County knew that Maley was firing plaintiff because of her candidacy and because of statements which plaintiff had made in her campaign. Id.

         Under the PPM, plaintiff was entitled to file a grievance to challenge Maley's right to terminate her and failure to follow County policies. Id. ¶ 40. In the days following her discharge, plaintiff sent Phelan two emails which stated that she needed his assistance and asked him to contact her. Id. ¶ 42. She also twice called Phelan and spoke with his secretary. Id. Phelan did not respond. Id. ¶ 43.

         In the evening of February 13, 2017, plaintiff sent Phelan a third email which stated as follows:

When I received my termination letter from Karen Maley on February 1, no one said anything about how I could file a grievance about it. According to 11.2 of the Policy Manual, it says I should contact the county attorney for advice on how to enter the grievance procedure. Can you tell me what I need to do?

Id. ¶ 43. Phelan did not respond. Id.

         The next day, on February 14 at 2:30 p.m., plaintiff called Phelan's office and spoke with his secretary. Id. ¶ 44. The secretary said that Phelan was in court and had not been in all day. Id. Plaintiff told the secretary about her email and said that she wanted to speak with Phelan. Id. The secretary said that she would give Phelan the message.

         The next day, on February 15 at 10:15 a.m., plaintiff called Phelan's office and again spoke with his secretary. Id. ¶ 45. The secretary told plaintiff that Phelan had not received her email and that he would not be available to talk with her that day. Id. Plaintiff re-sent the email and called back to let the secretary know and to ask that Phelan check his junk email if he did not receive it. Id. ¶ 46. Plaintiff told the secretary that she had a very brief question for Phelan and that it was important that he call her. Id. The secretary replied that she would deliver the message, but he was unavailable all day. Id.

         In the afternoon of February 15, Phelan responded to plaintiff's email. Id. ¶ 47. Phelan refused to help and stated that because he represented the County, he was conflicted from giving her advice and she should contact a private attorney. Id. At that point, plaintiff had exhausted the PPM's instructions on how to ...


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