Tilley v. Kansas State University et al
Filing
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MEMORANDUM AND ORDER granting 53 Motion to Dismiss. Plaintiffs breach of contract claim and claims for injunctive relief are dismissed with prejudice. Defendants are entitled to qualified immunity on plaintiffs substantive and procedural due process claims. Signed by District Judge Carlos Murguia on 11/23/2011. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KATHERINE TILLEY,
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Plaintiff,
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v.
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DIRK MAIER, et al.,
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Defendants.
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__________________________________________)
Case No. 10-cv-02206-CM/GLR
MEMORANDUM AND ORDER
Plaintiff Katherine Tilley alleges that defendants—in their individual capacities— violated her
procedural and substantive due process rights when they determined in April 2009 that she
“abandoned” her tenured teaching position at Kansas State University (“K-State” or “KSU”).
Specifically, plaintiff alleges that defendants violated her right to substantive due process simply by
reducing her leave time and deeming her position abandoned. She also alleges that defendants
violated her right to procedural due process by failing to provide adequate process: (a) prior to making
their determination that she abandoned her position, depriving her of a property interest; and (b) prior
to issuing a letter circulated to plaintiff and certain administrators indicating that plaintiff had
abandoned her position, depriving her of a liberty interest in her reputation. Plaintiff also asserts a
breach of contract claim against defendants and seeks injunctive relief, even though her employment
relationship was with KSU, rather than the defendants in their individual capacities.
Defendants—who are all current or former administrators at KSU—move to dismiss plaintiff’s
procedural and substantive due process claims on the basis of qualified immunity (Doc. 53).
Defendants also move to dismiss plaintiff’s contract claims because they have no individual capacity
liability for plaintiff’s employment relationship with KSU. And they move to dismiss plaintiff’s
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requests for injunctive relief because they can’t provide reinstatement. As discussed below, plaintiff
fails to demonstrate that defendants’ actions violated her substantive due process rights or deprived
her of any property or liberty interest without due process. Further, the court determines that plaintiff
cannot state a claim for breach of contract against, or seek injunctive relief from, defendants in their
individual capacity. Accordingly, the court grants defendants’ motion to dismiss.
I.
Factual Background As Alleged By Plaintiff
In 2002, plaintiff was awarded tenure as an Associate Professor in the Department of Grain
Science and Industry (“the Department”) at KSU. In 2004, she notified the Head of the Department
that she had a pulmonary condition resulting from her exposure to flour dust during the course of her
work at KSU. KSU worked with plaintiff to accommodate her condition.
During the 2008-2009 academic year, plaintiff was working from home. On December 5,
2008, plaintiff received a letter from defendant Maier—Head of the Department—notifying her that
her accumulated sick and vacation leave balances would be applied to her absences. In response,
plaintiff’s physician sent a letter to defendant Maier explaining that plaintiff was capable of returning
to work so long as her work area was free from flour dust. Plaintiff also filed a workers’
compensation claim and notified defendant Maier of this claim.
Defendant Maier responded to plaintiff’s physician’s letter on February 23, 2009, and
requested clarification on plaintiff’s medical condition. Defendant Maier sent plaintiff another letter
on March 30, 2009, notifying her that her accumulated sick and vacation balance had been expended
and that she was now considered on unpaid leave.
Plaintiff’s attorney sent a letter to KSU’s attorney’s office on April 1, 2009, demanding that
plaintiff’s sick and vacation leave balance be restored and any additional adverse employment action
cease. But, on April 17, 2009, defendant Maier and defendant Cholick—Dean and Director, K-State
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Research & Extension—sent a letter to plaintiff stating that “it appears you have abandoned your
position and have discontinued communications with your employer.” Six university administrators
received a copy of this letter. On April 20, 2009, defendant Maier notified plaintiff that her
resignation had been processed.
Several months later, plaintiff requested an appeal of termination. Counsel for KSU notified
plaintiff that she was not eligible for any grievance procedure because she had resigned. Plaintiff
subsequently filed this lawsuit alleging breach of contract and violations of due process. She seeks
damages and injunctive relief.
II.
Analysis
A.
Plaintiff Concedes That Her Breach Of Contract Claim Cannot Be
Maintained Against Defendants And That Injunctive Relief Cannot Be
Obtained From Defendants
As an initial matter, defendants move to dismiss plaintiff’s breach of contract claim and her
requests for injunctive relief. (Doc. 54 at 27.) Plaintiff concedes both issues in her opposition. (Doc.
61 at 8–9.) Accordingly, plaintiff’s breach of contract claim and requests for injunctive relief are
dismissed with prejudice. The sole issues remaining in this case are plaintiff’s due process claims and
her corresponding request for money damages.
B.
Qualified Immunity
Defendants seek to dismiss plaintiff’s substantive and procedural due process claims because
defendants’ actions are protected by qualified immunity. Qualified immunity is intended “to shield
[government officials] from undue interference with their duties and from potentially disabling threats
of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Recognition of qualified immunity
responds to the concern that absent such protection the “fear of being sued w[ould] dampen the ardor
of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of
their duties.” Id. at 814 (brackets and internal quotation marks omitted).
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Qualified immunity may be asserted early in the case through the procedural mechanism of a
motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Leverington v. City of Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011). In evaluating such a motion,
“all well-pleaded factual allegations in the amended complaint are accepted as true and viewed in the
light most favorable to the nonmoving party.” Sutton v. Utah State Sch. for the Deaf & Blind, 173
F.3d 1226, 1236 (10th Cir. 1999). To overcome a Rule 12(b)(6) motion based on qualified immunity,
plaintiff bears a heavy, two-part burden to demonstrate that: (1) the facts plaintiff alleged make out a
violation of a constitutional right, and (2) the right at issue was “clearly established” at the time of the
defendants’ alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 231 (2009); Brooks v. Gaenzle,
614 F.3d 1213, 1219 (10th Cir. 2010). The court has discretion in deciding which of these two prongs
should be addressed first. Callahan, 550 U.S. at 236.
1.
Plaintiff Fails To Demonstrate That Defendants’ Actions Violated
Her Substantive Due Process Rights
Plaintiff first alleges that defendants violated her substantive due process rights. Although her
complaint is less than clear, it appears that she is alleging the defendants violated her right to
substantive due process simply by reducing her leave time and deeming her position abandoned.
(Doc. 47 at 7.) The court determines that defendants are entitled to qualified immunity because the
facts that plaintiff alleged do not make out a violation of substantive due process.
The Supreme Court has identified two ways in which a plaintiff may establish a claim for
substantive due process. First, a plaintiff may establish that a defendant has violated a fundamental
right that the plaintiff enjoys under the United States Constitution. Chavez v. Martinez, 538 U.S. 760,
787 (2003). A fundamental right is one that is “deeply rooted in this Nation’s history and tradition”
and “implicit in the concept of ordered liberty.” Id. at 775. Plaintiff identifies no case law
establishing that the rights she asserts constitute fundamental rights under the Constitution. Nor does
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plaintiff make any showing that the rights asserted are “objectively, deeply rooted in this Nation’s
history and tradition[.]” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997).
Moreover, several circuit court opinions counsel against plaintiff’s position. Specifically, the
Tenth Circuit has not “decided whether an employee with a property right in state-created
employment is [a fundamental right] protected by the substantive due process clause.” Potts v. Davis
Cnty., 551 F.3d 1188, 1193 n.1 (10th Cir. 2009). But the majority of other circuits have concluded
that state-created employment rights are not fundamental rights entitled to substantive due process
protection. See Nicholas v. Penn. State Univ., 227 F.3d 133, 142–43 (3d Cir. 2000) (holding that
plaintiff’s tenured public employment is not a fundamental interest protected by substantive due
process); Singleton v. Cecil, 176 F.3d 419, 425–26 (8th Cir. 1999) (en banc) (“[A] public employee’s
interest in continued employment with a governmental employer is not so ‘fundamental’ as to be
protected by substantive due process.”); McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994) (en
banc) (explaining that “employment rights are state-created rights and are not ‘fundamental’ rights
created by the Constitution”); Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1350 (6th Cir. 1992);
Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134, 1142 n.10 (4th Cir. 1990) (explaining that
a professor’s interest “is essentially a state law contract right, not a fundamental interest embodied in
the Constitution”); see also Local 342, Long Island Pub. Serv. Employees v. Town Bd. of Huntington,
31 F.3d 1191, 1996 (2d Cir. 1994) (“We do not think, however, that simple, state-law contractual
rights, without more, are worthy of substantive due process protection.”); Kauth v. Hartford Ins. Co.
of Illinois, 852 F.2d 951, 958 (7th Cir. 1988). These opinions indicate that—even at a more general
and abstract level—plaintiff’s asserted rights are not deeply rooted within our Nation’s history.
Therefore, plaintiff’s complaint fails to allege a substantive due process claim based on the violation
of a fundamental right.
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Substantive due process also protects individuals from the exercise of executive governmental
power that “shocks the conscience,” even if the executive power is directed to deprive a plaintiff of a
right that is not itself fundamental. Seegmiller v. Laverkin City, 528 F.3d 762, 767 (10th Cir. 2008)
(“By satisfying either the ‘fundamental right’ or the ‘shocks the conscience’ standards, a plaintiff
states a valid substantive due process claim under the Fourteenth Amendment.”); see also Dias v.
Cnty. of Denver, 567 F.3d 1169, 1182 (10th Cir. 2009) (explaining that the “shocks the conscience
standard is ‘an inquiry reserved for cases challenging executive action’”) (emphasis in
original). Conduct that shocks the conscience is “deliberate government action that is arbitrary and
unrestrained by the established principles of private right and distributive justice.” Seegmiller, 528
F.3d at 767. Not all government action, however, is covered. Rather, “only the most egregious
official conduct can be said to be arbitrary in the constitutional sense.” Id.
Plaintiff’s complaint fails to allege facts that would permit the court to find that defendants
acted in a conscience-shocking manner in deeming her position abandoned or reducing her
leave. Defendants sent several letters to plaintiff (or her agents) regarding her condition and
explaining that they would be utilizing her leave balances. Ultimately defendants determined after
this correspondence that plaintiff resigned her position. It is clear from plaintiff’s allegations that
defendants attempted to communicate with plaintiff and did not act in a manner wholly divorced from
reason or rationale. The fact that plaintiff disagrees with defendants’ determination does not establish
a substantive due process claim. Indeed, even if defendants were wrong in determining plaintiff
abandoned her position, it is clear from plaintiff’s allegations that they did not arrive at this decision in
a manner that can be described as arbitrary, capricious, or conscience shocking. Therefore, plaintiff’s
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complaint fails to state a claim for substantive due process violations based on arbitrary and capricious
or conscience-shocking conduct. 1
2.
Plaintiff Fails To Demonstrate That Defendants’ Actions Deprived
Her Of Procedural Due Process
Although plaintiff’s complaint is not entirely clear, plaintiff appears to allege that defendants
violated her procedural due process rights in two respects. First, plaintiff alleges defendants deprived
her of a property interest in her job without due process. Second, plaintiff alleges defendants deprived
her of a liberty interest in her reputation without due process. The court determines that defendants
are entitled to qualified immunity because plaintiff has not alleged sufficient facts to state a procedural
due process claim.
a.
Property Interest In Not Having Her Position Deemed
Abandoned
Plaintiff alleges defendants classified her employment as “abandoned” without any notice to
plaintiff and then denied her an opportunity for a hearing. The court determines that based on the
alleged facts, the boundaries of plaintiff’s right was not clearly established at the time defendants
acted. Accordingly, defendants are entitled to qualified immunity on this claim.
To be clearly established, the contours of a right “must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739
(2002). A right is clearly established when Supreme Court or Tenth Circuit case law exists on point
or if the “clearly established weight of authority from other circuits” found a constitutional violation
from similar actions. Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1251 (10th Cir. 1999).
Properly characterized, plaintiff alleges that defendants failed to provide adequate process
before deeming her employment abandoned because defendants did not provide notice and a
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Even if plaintiff did establish a fundamental right or conscience-shocking conduct, defendants would still be entitled
to qualified immunity because the above case law and facts indicate that the rights at issue were not “clearly
established” at the time of the defendants’ alleged misconduct.
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hearing. Plaintiff failed to identify any case law—Supreme Court, Tenth Circuit, or otherwise—
establishing what process is due before a government employer deems an employee to have
abandoned her position. Additionally, plaintiff fails to identify any case law indicating that the
process provided to her by defendants including the form of letters, etc. was deficient. Therefore,
plaintiff has not established that defendants violated a clearly established right in the context of this
case.
Even if the right was clearly established, plaintiff’s claim does not make out a constitutional
violation. To succeed on a procedural due process claim, plaintiff must demonstrate: (1) a
constitutionally cognizable liberty or property interest, and (2) deprivation of that interest without an
appropriate level of process. See Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.
2006). Assuming plaintiff has a cognizable property interest, she has not alleged facts indicating that
she was deprived of that property interest without an appropriate level of process. Specifically,
federal law determines what constitutes adequate procedural due process. See Glatz v. Kort, 807 F.2d
1514, 1517 (10th Cir. 1986) (explaining that “[c]onstitutionally required procedural protections are
matters of federal law”); De Llano v. Berglund, 282 F.3d 1031, 1035 (8th Cir. 2002) (holding that
“federal law, not state law or [university] policy, determines what constitutes adequate procedural due
process”). Under federal law, adequate process in the employment context requires notice and an
opportunity to respond. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
Defendants sent plaintiff multiple letters over the course of nearly five months inquiring about
her absence from her work site without approval, requesting clarification about her health condition,
and questioning her ability to perform her essential job functions.2 Defendant Maier’s March 30,
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Plaintiff’s complaint references several letters, which are central to her claims. Defendants attached these letters to
the motion to dismiss, and plaintiff never disputed each letter’s authenticity. Accordingly, the court considers these
letters in ruling on the motion to dismiss. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)
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2009 letter specifically requested that plaintiff contact him “at [her] earliest convenience to schedule a
meeting with us regarding your intentions concerning your return to work.” Defendant Maier’s letter
also indicates that he left phone and email messages, to which plaintiff failed to respond. Finally,
defendants notified plaintiff that they were deeming her employment abandoned and, several days
later, confirmed that KSU processed her resignation. During this time, plaintiff does not allege that
she ever directly called, emailed, or contacted defendants.
Based on this history, plaintiff was on notice that defendants were questioning her intentions
regarding her return to work. Plaintiff also had several opportunities to contact defendants, explain
her position, clarify any misunderstandings, and request additional procedures. But she did not avail
herself of these opportunities, and she should not be able to use her own inaction against defendants to
support a violation of procedural due process. In addition, regardless of whether she was entitled to
subsequent proceedings after her position was deemed abandoned, the court determines that due
process did not require defendants to provide a hearing four months later when plaintiff finally
requested it. Accordingly, defendants are entitled to qualified immunity for the additional reason that
plaintiff has not alleged sufficient facts to make out a procedural due process violation.
b. Liberty Interest In Her Reputation
Plaintiff’s final allegation is that defendants violated her right to procedural due process by
failing to provide adequate process prior to issuing a letter circulated to plaintiff and certain
administrators indicating that plaintiff had abandoned her position, depriving her of a liberty interest
in her reputation. For defendants to infringe on this liberty interest, four factors must be satisfied: (1)
“the statements must impugn the good name, reputation, honor, or integrity of the employee”; (2) “the
statements must be false”; (3) “the statements must occur in the course of terminating the employee or
(explaining that “the district court may consider documents referred to in the complaint if the documents are central to
the plaintiff’s claim and the parties do not dispute the documents’ authenticity”).
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must foreclose other employment opportunities”; and (4) “the statements must be published.”
Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994).
In this case, plaintiff can’t demonstrate that the statements made by defendants were
published. The only publication that plaintiff identifies in her complaint is the April 17, 2009 letter
from defendants Maier and Cholick. Six other KSU administrators received a copy of this letter. But
plaintiff cannot demonstrate that this letter—which was sent only to plaintiff and a limited number of
administrators—was a public communication. See Bishop v. Wood, 426 U.S. 341, 348 (1976)
(holding that a non-public communication cannot form the basis for a claim that “petitioner’s interest
in his good name, reputation, honor, or integrity” has been impaired); Sanchez v. Dubois, 291 F.
App’x 187, 191–92 (10th Cir. 2008) (determining defendants were entitled to qualified immunity
because no constitutional violation occurred when the false statements were not published); Asbill v.
Hous. Auth. of Choctaw Nation of Okla., 726 F.2d 1499, 1503 (10th Cir. 1984) (“[I]ntra-government
dissemination, by itself, falls short of the Supreme Court’s notion of publication: ‘to be made
public.’”). Accordingly, defendants are entitled to qualified immunity on this claim because the facts
plaintiff has alleged do not make out a violation of a constitutional right.
IT IS THEREFORE ORDERED that defendants’ motion to dismiss (Doc. 53) is granted.
Plaintiff’s breach of contract claim and claims for injunctive relief are dismissed with prejudice.
Defendants are entitled to qualified immunity on plaintiff’s substantive and procedural due process
claims.
Dated this 23rd day of November, 2011, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge
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