BY THE COURT
Kansas Judicial Review Act, K.S.A. 77-601 et seq., does not
apply to the civil tort of retaliatory job action against an
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,
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.
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.
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.
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.
a litigant fails to adequately brief an issue, it is deemed
8. If a
clearly defined mandatory duty or guideline exists, the
discretionary function exception of the Kansas Tort Claims
Act is inapplicable.
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.
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.
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
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.
Willoughby, assistant attorney general, argued the cause, and
Derek Schmidt, attorney general, was with her on the briefs
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
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.
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
and Procedural Background
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.
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
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.
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.)
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.
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).
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.
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."
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.
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
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.
district court proceedings
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).
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.
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.
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.
court finally noted Hill failed to show the defendants'
justification for the transfer was pretext. As to this, it
"[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
appealed. The defendants cross-appealed the earlier denial of
their motions to dismiss.
Court of Appeals decision
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.
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
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 ...