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Sage Hill v. State

Supreme Court of Kansas

September 6, 2019

Sage Hill, Appellant/Cross-appellee,
v.
State of Kansas and Ernest Garcia, Appellees/Cross-appellants.

         SYLLABUS BY THE COURT

         1. The Kansas Judicial Review Act, K.S.A. 77-601 et seq., does not apply to the civil tort of retaliatory job action against an administrative agency.

         2. The Civil Service Board's jurisdiction under the Civil Service Act, K.S.A. 2018 Supp. 75-2929d(a), does not extend to retaliatory job actions in work assignments, relocations, or transfers.

         3. Under K.S.A. 2018 Supp. 75-2949(g) of the Civil Service Act, no civil service employee may be disciplined or discriminated against in any way because of the employee's proper use of the Act's appeal procedure.

         4. Kansas law recognizes the tort of retaliatory job action when a civil service employee is disciplined or discriminated against in any way because of the employee's proper use of the Civil Service Act's appeal procedure.

         5. An actionable retaliatory job action can include a civil service employer's act that is materially adverse to a reasonable civil service employee, i.e., harmful to the point it could dissuade a reasonable employee from exercising the employee's rights under the Civil Service Act.

         6. The Kansas Tort Claims Act, K.S.A. 75-6101 et seq., provides that a governmental entity can be found liable for the negligent or wrongful act or omission of any employee while acting within the scope of employment if (a) a private person could be liable under the same circumstances, and (b) no statutory exception to liability applies.

         7. When a litigant fails to adequately brief an issue, it is deemed abandoned.

         8. If a clearly defined mandatory duty or guideline exists, the discretionary function exception of the Kansas Tort Claims Act is inapplicable.

         9. The elements of a prima facie claim for retaliatory job action for using the Civil Service Act's appeal procedure are: (a) an employee filed a Civil Service Act appeal; (b) an employer knew the employee filed such an appeal; (c) the employer subjected the employee to a materially adverse job action; and (d) a causal connection existed between the filing of the appeal and the adverse job action.

         10. A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue requires it to determine the state of mind of one or both of the parties.

         Review of the judgment of the Court of Appeals in 53 Kan.App.2d 155, 388 P.3d 122');">388 P.3d 122 (2016). Appeal from Shawnee District Court; Rebecca W. Crotty, judge. Judgment of the Court of Appeals affirming in part and reversing in part the district court and dismissing the case is affirmed in part and reversed in part. Judgment of the district court is affirmed in part and reversed in part, and the case is remanded for further proceedings.

          Michael T. Miller, of McCauley & Roach, LLC, of Kansas City, Missouri, argued the cause, and Morgan L. Roach, of the same firm, was with him on the briefs for appellant.

          M.J. Willoughby, assistant attorney general, argued the cause, and Derek Schmidt, attorney general, was with her on the briefs for appellees.

          OPINION

          Biles, J.

         Kansas Highway Patrol Trooper Sage Hill alleges the KHP retaliated by requiring him to move across the state to keep his job after the Kansas Civil Service Board ordered the agency to reinstate him to work. State law expressly provides no civil service employee-including a KHP trooper-may be disciplined or discriminated against "in any way because of the employee's proper use of the appeal procedure." (Emphasis added.) K.S.A. 2018 Supp. 75-2949(g). No one claims Hill improperly exercised his civil service right. This appeal presents three questions before this court: (1) whether a common-law cause of action for employer retaliation may be based on an adverse job action short of dismissal or demotion; (2) whether the State's sovereign immunity bars the claim regardless of its merits; and (3) whether the uncontroverted material facts entitle defendants to summary judgment against Hill. The first two are matters of first impression.

         The lower courts disagreed with each other in answering these inquiries although both ultimately held Hill's case could not go to a jury. Hill v. State, 53 Kan.App.2d 155, 157, 388 P.3d 122');">388 P.3d 122 (2016). We granted review. A majority now affirms in part, reverses in part, and remands to the district court for further proceedings.

         We hold the common-law tort of retaliation may be premised on an employer's action short of dismissal or demotion, such as the involuntary job relocation alleged in this case. To hold otherwise would undermine the purposes supporting common-law job retaliation claims and the important public policy expressed in the Kansas Civil Service Act, K.S.A. 75-2925 et seq. We further hold sovereign immunity does not bar Hill's claim. Finally, we conclude there are genuine issues of material facts precluding summary judgment. Remand is necessary for the district court to resolve these remaining controversies.

         Factual and Procedural Background

         Given the procedural posture, all facts and inferences that may be reasonably drawn from the evidence are resolved in Hill's favor because the district court decided this case against him on summary judgment. Lumry v. State, 305 Kan. 545, 547, 385 P.3d 479 (2016); Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1204, 308 P.3d 1238 (2013); O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012). Our factual statement is prepared with that recognition.

         In January 2008, the KHP hired Hill as a trooper and assigned him to Troop H in Cherokee County, which is in our state's southeastern corner. Hill worked there until November 2011 when the KHP fired him over a dispute with a supervisor who was investigating a civilian complaint against him. Hill appealed to the Kansas Civil Service Board, which is statutorily created to provide civil service employees with an independent review for specific types of state agency employment actions. See K.S.A. 75-2929a (creation of board); K.S.A. 2018 Supp. 75-2929d(a) (board's authority to hear appeals concerning demotion, dismissal, or suspension of permanent employees in state classified service); K.S.A. 2018 Supp. 75-2935(1), (2) (including KHP troopers as classified state employees).

         The board reversed the termination although it agreed Hill's misconduct warranted discipline. The board modified the sanction to a one-year suspension without pay and benefits. For the KHP, this was an unprecedented reversal of its command staff's decision to fire a trooper.

         In reinstating Hill, the KHP decided to treat him as a new hire who could be "assigned" wherever needs were greatest. At that time, Finney County in southwestern Kansas had the greatest need. KHP Superintendent Ernest Garcia agreed and made the final decision. On December 13, 2012, Garcia sent Hill a letter, stating:

"In accordance with the Final Order of the Civil Service Board, your dismissal as a Trooper is being modified to a suspension without pay and benefits for a period of one year from the date of your dismissal.
"You are being returned to active duty effective November 6, 2012 and transferred from Troop H to Troop E, Finney County." (Emphasis added.)

         KHP admits it is undesirable to involuntarily relocate a trooper previously assigned to another geographic area because it disrupts the trooper's personal life. Multiple command staff members testified they could not remember ever involuntarily transferring a trooper after an initial area assignment as a new hire. Garcia also could not recall ever involuntarily changing a trooper's job placement. KHP further agrees no other trooper was involuntarily transferred to remedy the trooper shortage in southwestern Kansas, which was the ostensible reason for transferring Hill. The evidence before the district court showed no KHP trooper had been involuntarily transferred for at least the past four decades. KHP acknowledges it was more challenging to get troopers to serve in western Kansas.

         Hill tried to administratively challenge his relocation. He asked the Civil Service Board to amend its reinstatement order to prevent it. The board denied the request by finding that it was untimely and that the KHP complied with its order by returning Hill to active duty. Hill then sought to appeal the transfer under the Civil Service Act, but the board determined it lacked jurisdiction because the Act limits its authority to agency initiated demotions, dismissals, or suspensions. See K.S.A. 2018 Supp. 75-2929d(a)(1).

         Undeterred, Hill sought a hardship assignment from the KHP premised on caring for his mother, who suffered health problems including multiple sclerosis. Command staff recommended against this, believing the hardship was insufficiently documented and because troopers were needed in western Kansas. Garcia agreed and denied the request.

         In February 2013, Hill reported for duty in Finney County. That same month, he requested relocation back to southeastern Kansas under the KHP's biannual voluntary transfer program called "make a wish." This gives troopers a chance to express a location preference and for the KHP to determine if that preference can be accommodated. The "make a wish" announcement included Cherokee County, Hill's prior assigned area, as needing manpower. Nevertheless, Hill's troop captain in southwestern Kansas and the command staff recommended against his request. Garcia agreed by letter, stating: "Sage, a greater need exists for your services in your present duty assignment. It would not be practical or in the best interest of the agency to authorize a move."

         In May 2013 Hill sued the KHP and Garcia in district court. He alleged his transfer was retaliatory and violated the public policy imbued in K.S.A. 2018 Supp. 75-2949(g) (prohibiting discipline or discrimination "in any way" against employees who properly pursue civil service appeals). He later amended the lawsuit to substitute the State of Kansas as a defendant for the KHP.

         In October 2013 Hill made a second "make a wish" request to Cherokee County in response to another announcement listing that county as needing manpower. Again, his southwestern Kansas troop captain opposed transfer, citing the southwest region's continued staffing needs. Garcia denied Hill's request on the same rationale as before.

         Also that October, Hill requested transfer to Troop G, which covers the Kansas Turnpike. He was the most senior trooper to bid for the position, and Garcia approved. Since December 2013 Hill has lived in Augusta, worked as a trooper along the turnpike, and received a promotion to a master trooper.

         The district court proceedings

         The defendants filed separate motions to dismiss. Relevant for this appeal, they claimed: (1) the district court lacked subject matter jurisdiction because Hill's exclusive remedy was under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq.; (2) the district court lacked subject matter jurisdiction because there is no private right of action under the Civil Service Act; (3) Hill failed to state a claim upon which relief could be granted; and (4) sovereign immunity shielded the defendants from liability under three provisions of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.: K.S.A. 2018 Supp. 75-6103(a) (governmental entity liable for damages caused by the negligent or wrongful act or omission of its employees acting within scope of employment under circumstances in which the governmental entity, if a private person, would be liable), K.S.A. 2018 Supp. 75-6104(c) (no liability for enforcement or failure to enforce a law), and K.S.A. 2018 Supp. 75-6104(e) (no liability for discretionary function).

         The district court denied the motions, concluding: it had subject matter jurisdiction; Hill stated a valid common-law retaliation claim based on the protection embedded within K.S.A. 2018 Supp. 75-2949(g) (prohibiting discipline or discrimination "in any way" against employees using the civil service appeal process); and the defendants had no sovereign immunity. In a follow-up order, the court clarified the decision to transfer Hill was an agency action under the KJRA but held that did not matter because Hill was seeking redress for the agency's tortious conduct-not for judicial review of the agency's administrative action.

         Following discovery, the district court granted summary judgment in defendants' favor, noting Hill did not establish a prima facie retaliation case based on the uncontroverted record. It reached this conclusion by first acknowledging there could be a retaliatory "adverse employment action" claim for retaliation based on the Civil Service Act.

         To establish a prima facie retaliation case, Hill had to prove: (1) he took a protected action; (2) the defendants knew about the protected action; (3) they took an adverse employment action; and (4) a causal connection linked the protected action to the adverse employment action. The district court found Hill satisfied the first two elements but failed to show the remaining two. The court stated Hill did not prove he suffered an adverse employment action because his transfer was not "the essential equivalent of a demotion." And it concluded Hill did not demonstrate the necessary causal link because the only evidence to suggest the appeal caused the transfer, in the court's view, was that Garcia was "very angry." This, it concluded, was insufficient to demonstrate a causal connection even though the reinstatement order and transfer occurred close in time.

         The court finally noted Hill failed to show the defendants' justification for the transfer was pretext. As to this, it reasoned,

"[T]he evidence consistently demonstrates that the [Command] Staff viewed the Plaintiff's placement as an assignment because they did not view him as an employee. No trooper can hold a position in another law enforcement agency while they are a trooper. Because the Plaintiff worked for the Cherokee County Sheriff's Department immediately prior to-and after-his reinstatement, the [Command] Staff viewed the Plaintiff not as an employee, but as a 'new body.' The [Command] Staff consistently testified that because of this unexpected addition, they wanted to place him where he was needed the most. The needs of KHP had changed from when the Plaintiff was terminated, and the strongest need was in Troop E. All five members of the [Command] Staff consistently testified to these views. This evidence demonstrates that a reasonable factfinder could only conclude that the [Command] Staff believe they legitimately placed the Plaintiff in Troop E to satisfy manpower needs, as opposed to transferring him involuntarily to retaliate against him."

         Hill appealed. The defendants cross-appealed the earlier denial of their motions to dismiss.

         The Court of Appeals decision

         The Court of Appeals noted Hill presented, among his other arguments, two issues of first impression: (1) attempting to establish a public policy exception to the employment-at-will doctrine based on the anti-retaliation provisions in K.S.A. 2018 Supp. 75-2949(g); and (2) suing for what the panel characterized as a common-law tort of "retaliatory job placement," as opposed to the more traditional retaliatory job actions recognized for firings and demotions. Hill, 53 Kan.App.2d at 183. The panel ultimately held in the defendants' favor.

         The panel agreed with the district court that the KJRA and the Civil Service Act were not exclusive means of recovery that barred Hill's lawsuit. It further held the Civil Service Act embodied a clear "public policy against employers retaliating against employees who appeal their dismissal, demotion, or suspension" and that a common-law tort action could be premised on an employer's retaliation for exercising Civil Service Act appeal rights. 53 Kan.App.2d at 187. And it held there was no adequate alternative remedy for Hill's retaliatory job placement claim. 53 Kan.App.2d at 189.

         Although acknowledging this generally "would be enough to establish a public policy exception to at-will employment," the panel concluded retaliatory job transfers were insufficiently harmful to be a valid common-law tort-unlike a demotion or discharge. It reasoned Hill's job placement in southwest Kansas "resulted in no harm, that is, no loss of job, job status, pay, or benefits." 53 Kan.App.2d at 191. The panel stated,

"[A]n agency transfer, by definition, does not involve a harm. Instead, a transfer is a lateral move from one position to another with similar or identical duties and similar or identical pay. More importantly, in the KHP, a trooper transfer does not involve any change in employment other than the county of work location.
"Having established that retaliatory discharge and demotion torts must involve harm, we are very doubtful that our Supreme Court would recognize a tort for retaliatory job placement. Although our Supreme Court's position on this issue would be an interesting question, we do not have to answer that question here. For our research has revealed that all recognized retaliatory torts involved some showing of harm, for instance, that a plaintiff has suffered a loss of job status, a loss of pay, or a loss of benefits. Without a showing of this kind of harm, Hill's argument for extending the common-law tort for retaliation in violation of public policy ...

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