United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
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.
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.
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)).
alleges the following facts.
over nine years, plaintiff worked as a clerk in the County
Treasurer's office for Coffey County,
Kansas. 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.
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.
County's Policy and Procedures Manual (“PPM”)
contains many of the County's personnel policies and
procedures. 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
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
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.
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.
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.
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.
2016, plaintiff ran against Karen Maley in the Republican
primary for the position of County Treasurer. 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.
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.
won the general election for County Treasurer. Her term was set
to begin in October of 2017. Id. ¶ 17.
early 2017, Cherry resigned from her position as County
Treasurer. Id. ¶ 23.
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.
February 1, 2017, Maley was sworn in as County Treasurer.
Id. ¶ 23.
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
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
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.
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.
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.
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.
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 ...