Boxum-Debolt et al v. Shawnee County District Attorney's Office et al
Filing
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MEMORANDUM AND ORDER overruling defendant Chadwick J. Taylor's 25 Motion to Reconsider. The parties are reminded to contact the Magistrate Judge through Courtroom Deputy Angela Whittle to reschedule the Scheduling Conference. See 22 Order Staying Discovery. Signed by District Judge Kathryn H. Vratil on 12/17/2014. (mg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KRYSTAL L. BOXUM-DEBOLT, et al.,
Plaintiffs,
v.
OFFICE OF THE DISTRICT ATTORNEY,
3RD JUDICIAL DISTRICT OF KANSAS
(SHAWNEE COUNTY DISTRICT
ATTORNEY’S OFFICE), et al.,
Defendants.
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CIVIL ACTION
No. 12-2641-KHV
MEMORANDUM AND ORDER
Krystal L. Boxum-Debolt and Lisa Anne Moore bring suit against the Office of the District
Attorney, 3rd Judicial District of Kansas (“DA’s Office”); Chadwick J. Taylor, District Attorney for
the 3rd Judicial District of the State of Kansas, in his official and individual capacities; Shawnee
County, Kansas; and County Commissioners Ted Ensley, Mary M. Thomas and Shelly Buhler in
their official and individual capacities. See Complaint (Doc. #1) filed October 1, 2012. Under
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., plaintiffs assert
claims for gender discrimination (Count I), associational discrimination (Count II) and retaliation
(Count III). Under 42 U.S.C. §§ 1983 and 1985, plaintiffs claim that defendants violated their
constitutional rights to substantive and procedural due process, freedom of speech and equal
protection (Count IV) and conspired to violate those rights (Count V). Under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., plaintiffs claim that defendants willfully denied
overtime wages (Count VI).
On September 30, 2013, the Court sustained in part defendants’ motions to dismiss. See
Memorandum And Order (Doc. #24). Specifically, the Court dismissed (1) all claims against the
DA’s Office; (2) claims under Section 1983, Section 1985 and the FLSA against Taylor in his
official capacity; (3) claims under Section 1983 against Taylor in his individual capacity; and
(4) claims under Title VII, Section 1983 and Section 1985 against Shawnee County and the
commissioners in their official and individual capacities.1 After the Court’s rulings, the following
claims remained in the case: (1) Title VII claims against Taylor in his official capacity (Counts IIII); (2) FLSA claims against Taylor in his individual capacity (Count VI); and (3) FLSA claims
against Shawnee County and the commissioners in their official and individual capacities (Count
VI). This matter comes before the Court on the Motion Of Defendant Taylor To Reconsider
(“Motion To Reconsider”) (Doc. #25) filed October 3, 2013. Defendant asserts that the Court
should have dismissed the FLSA claim against him in his individual capacity based on qualified
immunity. For reasons stated below, the Court overrules defendant’s motion.
I.
Legal Standards
A.
Motion To Reconsider
A motion to reconsider must be based on (1) an intervening change in controlling law;
(2) newly available evidence; or (3) the need to correct clear error or prevent manifest injustice. See
Coffeyville Res. Ref. & Mktg., LLC v. Liberty, 748 F. Supp. 2d 1261, 1264 & n.2 (D. Kan. 2010);
1
The Court also ordered plaintiffs to show cause in writing why the Title VII claims
against Taylor in his individual capacity should not be dismissed. Memorandum And Order
(Doc. #24) at 18-19. In response, plaintiffs agreed that such claims should be dismissed. See
Plaintiffs’ Response To Order To Show Cause (Doc. #28) filed October 15, 2013. Accordingly, on
October 16, 2013, the Court dismissed the Title VII claims against Taylor in his individual capacity.
Order (Doc. #29).
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see also D. Kan. R. 7.3(b); Comeau v. Rupp, 810 F. Supp. 1172, 1174-75 (D. Kan. 1992). It is not
appropriate to revisit issues already addressed or to advance argument that a party could have raised
in prior briefing. See, e.g., Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)
(addressing motion brought under Rule 59(b)). A motion to reconsider is not a second opportunity
for the losing party to make his strongest case, to rehash arguments or to dress up arguments that
previously failed. Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996);
Resolution Trust Corp. v. Greif, 906 F. Supp. 1446, 1456 (D. Kan. 1995); Voelkel v. Gen. Motors
Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994). A party’s failure to present his strongest case in
the first instance does not entitle him to a second chance through a motion to reconsider. Cline v.
S. Star Cent. Gas Pipeline, Inc., 370 F. Supp. 2d 1130, 1132 (D. Kan. 2005).
The court has
discretion whether to grant a motion to reconsider.
B.
Qualified Immunity
Qualified immunity shields government officials from liability for discretionary functions
“if their conduct does not violate clearly established rights of which a reasonable government
official would have known.” Perez v. Unified Gov’t of Wyandotte Cnty./Kan. City, Kan., 432 F.3d
1163, 1165 (10th Cir. 2005). Although summary judgment provides the typical vehicle for asserting
qualified immunity, defendant may also raise the defense in a motion to dismiss. See Peterson v.
Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004). Asserting the defense in this fashion, however,
subjects defendant to a more challenging standard of review than would apply on summary
judgment. See id. (citing Lone Star Indus., Inc. v. Horman Family Trust, 960 F.2d 917, 920 (10th
Cir. 1992) (Rule 12(b)(6) motion viewed with disfavor and rarely granted)).
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In evaluating qualified immunity in the context of a motion to dismiss, the Court determines
whether plaintiffs have alleged that defendant deprived them of constitutional rights and whether
those rights were clearly established at that time. See id. at 1202 (citing Saucier v. Katz, 533 U.S.
194, 201 (2001)). Plaintiffs bear the burden to allege facts sufficient to allow the Court to make
these determinations. See id. at 1202–03; see also Perez, 432 F.3d at 1165. If plaintiffs sufficiently
allege the deprivation of a clearly established right, qualified immunity will not protect defendant.
A valid qualified immunity defense relieves defendant of individual liability. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).
II.
Factual Background
In his motion to dismiss, defendant argued as follows:2 “The Complaint fails to articulate
any potential theory of liability against District Attorney Taylor in either his official capacity or his
personal capacity, [and dismissal] is appropriate for any or all of the following
reasons . . . . Qualified Immunity protects Chadwick Taylor from personal liability.” Motion Of
Defendants Taylor And DA’s Office To Dismiss (“Motion To Dismiss”) (Doc. #11) filed on
November 13, 2012 at 2. The motion also includes the following heading: “Qualified Immunity
Protects Chadwick Taylor From Personal Liability,” and the following text:
Plaintiffs bear the burden of establishing that the allegations qualify as a
violation of clearly established federal rights, absent proof of which there can be no
recovery of money damages from an individual defendant. See Rozek v. Topolnicki,
865 F.2d 1154 (10th Cir. 1989). None of the rights asserted by these plaintiffs
qualifies as a clearly established statutory or constitutional right that has been
infringed by the District Attorney. He has no personal liability for novel claims that
have never previously been recognized. Qualified immunity should apply in this
case as it did in Allen v. Kline, 507 F. Supp. 2d 1150, 1163 (D. Kan. 2007). No
2
For the sake of completeness, the Court includes defendant’s entire argument with
regard to qualified immunity.
-4-
published decisions more recent than the Allen v. Kline case have established the
wrongfulness of the conduct described in the complaint. State actors are personally
liable for violation of constitutional rights only where they are on constructive notice
that their actions are unlawful. For a government official’s conduct to violate clearly
established law, so that the official is not entitled to qualified immunity from claims
for money damages, a case directly on point is not required, but existing precedent
must have placed the statutory or constitutional question beyond debate. There must
be a consensus of cases of persuasive authority. See Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2083-2084.
Qualified immunity rules were recently reaffirmed in Reichle v. Howards,
132 S. Ct. 2088 (2012):
Howards contends that our cases have “settled” the rule that, “‘as a
general matter[,] the First Amendment prohibits government officials
from subjecting an individual to retaliatory actions’” for his speech.
See Brief for Respondent at 39 (quoting Hartman, supra, at 256, 126
S. Ct. 1695). But we have previously explained that the right
allegedly violated must be established, “‘not as a broad general
proposition,’” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
curiam), but in a “particularized” sense so that the “contours” of the
right are clear to a reasonable official, Anderson, supra, at 640, 107
S. Ct. 3034. Here, the right in question is not the general right to be
free from retaliation for one’s speech, but the more specific right to
be free from a retaliatory arrest that is otherwise supported by
probable cause. This Court has never held that there is such a right.
Research has revealed no consensus of published authority that concludes that it is
a violation of employees’ constitutional rights to ignore complaints from employees
who are not themselves nursing mothers concerning the needs of nursing mothers.
Neither is it a violation of anyone’s constitutional rights to respond to a complaint
about a supervisor’s hiring of domestic help for off-duty work by siding with the
supervisor rather than with the subordinate employee.
Id. at 9-10 (citation format altered). Plaintiffs responded as follows:
Defendant Taylor contends qualified immunity protects him from personal
liability against the violations of Plaintiffs’ federal rights. However, Defendant’s
argument is undermined by Allen v. Kline, in which the plaintiffs’ First Amendment
(freedom of association) claims against the District Attorney personally, as well as
other constitutional claims against him in his official capacity, survived a [m]otion
to [d]ismiss. [507 F. Supp. 2d 1150 (D. Kan. 2007).] Here, like in Allen, Defendant
Taylor may be held personally liable for his violations of Plaintiffs’ free speech
rights under the First Amendment. Furthermore, despite Defendants’ complete
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mischaracterization of Plaintiffs’ protected complaints in order to minimize them and
portray them as merely “internal whistleblowing,” as articulated above in Section D,
Plaintiffs’ protected complaints were matters of public concern, not about merely
personal interests. Defendant Taylor’s Motion to Dismiss must be denied.
Plaintiffs’ Memorandum In Opposition To [Motion To Dismiss] (Doc. #16) filed Jan. 4, 2013 at 14
(citation format altered). The Court determined that defendant was entitled to qualified immunity
on plaintiffs’ constitutional claims (Count IV). See Memorandum And Order (Doc. #24) at 13-14.
The Court did not address whether qualified immunity applied to plaintiffs’ FLSA claims against
defendant in his individual capacity. See id.
III.
Analysis
Defendant asserts that he raised qualified immunity to all individual capacity claims against
him, including the FLSA claim (Count VI), and that he is entitled to immunity on that claim. See
Motion To Dismiss (Doc. #11) at 2, 9. Although defendant does not expressly identify any grounds
which warrant reconsideration, he implies that the Court clearly erred by not dismissing plaintiffs’
FLSA claim against him on the basis of qualified immunity. Because the opening brief of
defendant’s motion to dismiss did not properly assert qualified immunity as to plaintiffs’ FLSA
claims, the Court overrules defendant’s motion for reconsideration.
Defendant’s motion to dismiss did not expressly raise qualified immunity as to plaintiffs’
FLSA claim. In short, defendant never asserted that he was entitled to qualified immunity on the
ground that (1) he did not violate the FLSA, or (2) the law regarding his application of the FLSA
to either plaintiff was not clearly established. See Gray v. Baker, 399 F.3d 1241, 1246 (10th Cir.
2005) (defendants failed to assert true qualified immunity defense to FMLA claim when they never
said “they should be shielded from liability because they acted in good faith in interpreting and
applying the FMLA” to plaintiff’s situation); see also Ortega v. City & Cnty. Of Denver,
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No. 11-CV-02394-WJM-CBS, 2013 WL 359934, at *6 & n.4 (D. Colo. Jan. 30, 2013) (failed to
raise qualified immunity when opening brief did not state that plaintiffs failed to show violation of
constitutional right or that constitutional right was not clearly established). Defendant did not cite
the FLSA in the qualified immunity section of his motion to dismiss, nor did he identify the precise
claims on which he asserted qualified immunity. See Motion To Dismiss (Doc. #11) at 9-10.
Defendant states he expressly asserted qualified immunity as to plaintiffs’ FLSA claims
when he wrote, “None of the rights asserted by these plaintiffs qualified as a clearly established
statutory or constitutional right that has been infringed by the District Attorney.” Motion To
Reconsider (Doc. #25) at 2. Presumably, defendant believes his passing reference to a “statutory
right” put plaintiffs and the Court on notice that he raised qualified immunity as to plaintiffs’ FLSA
claims. The Court disagrees. Without more, a single veiled reference to the FLSA, buried deep
within defendant’s brief, is insufficient to assert a right to qualified immunity as to plaintiffs’ FLSA
claims. This is particularly true because plaintiffs brought claims under other statutes, including
Title VII, Section 1983 and Section 1985.3 See Gray, 399 F.3d at 1246;4 see also United States v.
3
Defendant’s arguments and cited cases put plaintiffs on notice that he asserted
qualified immunity as to plaintiff’s constitutional claims under Section 1983. See Motion To
Dismiss (Doc. #11) at 9-10 (qualified immunity protects defendant from personal liability, citing
Reichle v. Howards, 132 S. Ct. 2088 (2012) (analyzing application of qualified immunity to
constitutional claims), Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (same), Rozek v.
Topolnicki, 865 F.2d 1154, 1155 (10th Cir. 1989) (analyzing application of qualified immunity to
constitutional claims under Section 1983), Allen v. Kline, 507 F. Supp. 2d 1150 (D. Kan. 2007)
(same)).
4
In Gray, plaintiff brought claims under Section 1983 and the Family and Medical
Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601-2654, against public officials in their individual
capacities. 399 F.3d at 1244. The district court denied qualified immunity on defendants’ motion
for summary judgment, and they immediately appealed. Id. The Tenth Circuit determined that it
did not have jurisdiction to review the denial of summary judgment regarding the FMLA claims
because defendants had not actually asserted a true qualified immunity defense in the first place.
(continued...)
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Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in
briefs.”). Defendant correctly states that plaintiffs carry the burden of presenting legal authorities
to establish that they asserted that defendant violated a clearly established federal right. Motion To
Reconsider (Doc. #25) at 3-4. Plaintiffs and courts do not, however, carry the burden of asserting
the qualified immunity defense on a motion to dismiss in the first instance.5
4
(...continued)
Id. at 1245. Defendants’ argument focused on whether they could be individually liable under the
FMLA, which involved statutory interpretation. Id. Because the Tenth Circuit lacked jurisdiction,
it never analyzed whether defendants could be liable under the FMLA or addressed whether
qualified immunity was available as a defense.
Although Gray involved the FMLA rather than the FLSA, both acts impose similar clear
requirements. See id. at 1245 (“In other words, [defendants] are not claiming, and indeed cannot
claim given the clear requirements of the FMLA, they were unaware that a particular course of
conduct would be violative of the FMLA.”). If defendant Gray did not properly raise qualified
immunity at the summary judgment stage, defendant Taylor did not properly assert qualified
immunity when he merely mentioned “statutory or constitutional right” in his motion to dismiss.
See Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004) (asserting qualified immunity at
motion to dismiss stage subjects defendants to more challenging standard of review than applies on
summary judgment).
5
Qualified immunity is not clearly available as a defense to FLSA claims in the Tenth
Circuit. At least one district court within the Tenth Circuit has rejected the defense in that context.
See Robillard v. Bd. of Cnty. of Comm’rs of Weld Cnty. Colo., No. 11-cv-03180-PAB-KMT, 2012
WL 694507, at *2 (D. Colo. Mar. 1, 2012) (qualified immunity not available on FLSA claims;
qualified immunity defense to Section 1983 claims only). The issue rarely arises and is
inconsistently resolved. See id.; Barfield v. Madison Cnty., Miss., 984 F. Supp. 491, 496 n.8 (S.D.
Miss. 1997) (refusing to consider qualified immunity under FLSA when defendant failed to cite
support for its applicability), abrogated on other grounds by Washington v. Fred’s Stores of Tenn.,
Inc., 427 F. Supp. 2d 725 (S.D. Miss. 2006); Baker v. Stone Cnty., Mo., 41 F. Supp. 2d 965, 1003
(W.D. Mo. 1999) (defendant entitled to qualified immunity for FLSA claims to extent named in
individual capacity). Cf. Gomez v. Toledo, 446 U.S. 635, 639 (1980) (defendants entitled to
qualified immunity under Section 1983 because rights well-established at common law and
compatible with purposes of Civil Rights Act).
In his motion for reconsideration, defendant cites Guttman v. Khalsa, 669 F.3d 1101 (10th
Cir. 2012). See Motion To Reconsider (Doc. #25) at 3 (“The [Tenth] Circuit Court of Appeals
recently confirmed that qualified immunity is available to defeat individual capacity claims arising
(continued...)
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The Court notes that it does not determine whether defendant is entitled to qualified
immunity. Rather, defendant failed to properly raise the issue in the first place, so the issue was not
before the Court. The Court will not consider new arguments in the motion for reconsideration.6
See Cline v. S. Star Cent. Gas Pipeline, Inc., 370 F. Supp. 2d 1130, 1132 (D. Kan. 2005).
IV.
Conclusion
In his Motion To Dismiss (Doc. #11), defendant did not properly assert qualified immunity
as to plaintiffs’ FLSA claims against him in his individual capacity. Thus, the Court did not err
when it did not address it then, and it will not reconsider the issue now.
5
(...continued)
under the Americans with Disabilities Act, for example.”). Defendant’s reliance on this case is
misplaced. In Guttman, the Tenth Circuit affirmed the application of sovereign immunity to the
ADA claim and qualified immunity to the stigma-plus constitutional due process claim. In any
event, the Court will not consider arguments presented for the first time on reconsideration.
6
Even in the motion for reconsideration, defendant fails to properly assert qualified
immunity. Instead of focusing on whether defendant acted in good faith in his dealings with
plaintiffs, defendant argues that it was not clearly established that he could be held “personally liable
for payment of overtime to members of his staff.” Motion To Reconsider (Doc. #25) at 5. This is
not the correct inquiry. See Gray, 399 F.3d at 1245 (“[Defendants] are not claiming, and indeed
cannot claim given the clear requirements of the FMLA, they were unaware that a particular course
of conduct would be violative of the FMLA . . . . At bottom, the question of whether the defendants
are subject to individual liability under the FMLA is one of statutory construction that had no
bearing on the decisions defendants made with respect to [plaintiff].”). The proper inquiry is
whether defendant acted in good faith, which defendant never asserted. As in Gray, defendant’s
qualified immunity defense in this case does not hinge on his “having acted in good faith in [his]
dealings with [plaintiffs].” See id.
Defendant also states that “[Plaintiffs] have cited no appellate case that would make the
FLSA or Title VII unambiguously applicable to persons in their job positions.” Motion To
Reconsider (Doc. #25) at 5. It is unclear whether defendant is suggesting that the FLSA does not
clearly establish that it applies to people in plaintiffs’ job positions, or to people in defendant’s job
position. If the defense is available, defendant may have properly raised it if he asserted that he
interpreted the FLSA in good faith to not apply to plaintiffs, i.e. that an exemption applied. See
Complaint (Doc. #1) ¶¶ 92-93. Even if this was defendant’s attempted assertion on reconsideration,
he never raised the issue in his motion to dismiss, so the Court would not address it now.
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IT IS THEREFORE ORDERED THAT Motion Of Defendant Taylor To Reconsider
(Doc. #25) filed October 3, 2013, be and hereby is OVERRULED.
Dated December 17, 2014 at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge
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