Gorman v. Olathe, Kansas, City of et al

Filing 28

MEMORANDUM AND ORDER: 6 Motion to Dismiss treated as a motion for summary judgment, shall be granted. 11 Motion for Leave to Amend Complaint and 25 Motion for Hearing are denied. Signed by U.S. District Senior Judge Richard D. Rogers on 11/5/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JASON GORMAN,
Plaintiff,
v.
CITY OF OLATHE, KANSAS, et al.,
Defendants.

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Case No. 13-2246-RDR

MEMORANDUM AND ORDER
Plaintiff filed a complaint on May 22, 2013 alleging that
he was terminated from his job as a police officer without a
name-clearing hearing in violation of the Due Process Clause of
the Constitution and 42 U.S.C. § 1983.

Defendants are:

the

City of Olathe, Kansas; J. Michael Wilkes, the City Manager for
Olathe; and Steve Menke, the Chief of Police for Olathe. This
case is before the court upon defendants’ motion to dismiss and
plaintiff’s motion to amend.
The motion to dismiss, which the court shall treat as a
motion for summary judgment, raises a statute of limitations
issue.
is

The motion to amend seeks to obviate that issue, which

whether

plaintiff

filed

this

action

within

two

years

of

learning that he had been denied a name-clearing hearing in
relation

to

his

job

termination.

The

original

complaint

asserted erroneously that defendants failed to give plaintiff a
name-clearing hearing in “March 2012.”

Defendants filed their

motion to dismiss asserting that the actual date was March 7,

2011 and, thus, plaintiff’s § 1983 claim is untimely because it
was

filed

more

than

two

years

after

the

claim

accrued.1

Plaintiff has filed a motion to amend the complaint to allege
that he was denied a name-clearing hearing on August 11, 2011,
which

is

action.

within

two

years

of

the

date

plaintiff

filed

this

Defendants oppose plaintiff’s motion to amend on the

grounds of futility.

After careful review, the court concludes

that the proposed amendment is futile and that this case should
be dismissed because plaintiff knew or should have known of the
alleged due process violation more than two years before filing
this lawsuit and because there

are

no grounds recognized in

Kansas for tolling the limitations period.
I.

SUMMARY JUDGMENT STANDARDS
Summary judgment is warranted if the materials on record

show that there is “no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.”
the

FED.CIV.P. 56(a).

light

most

favorable

The court views “all of the facts in
to

the

non-movant

and

reasonable

inferences from the record must be drawn in favor of the nonmoving party.”
2007).

Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir.

From this viewpoint, the court attempts to determine

whether a reasonable jury could return a verdict in favor of the

1

There is no dispute that a two-year limitations period applies to
plaintiff’s § 1983 claim.
See Brown v. Unified Sch. Dist. 501, 465 F.3d
1184, 1188 (10th Cir. 2006).

2

non-moving party.

Bones v. Honeywell Int’l, Inc., 366 F.3d 869,

875 (10th Cir. 2004).

“While we view the record in the light

most favorable to the non-moving party, that party must still
identify sufficient evidence requiring submission to the jury to
survive summary judgment.”

Piercy, 480 F.3d at 1197.

In other

words, the court may consider evidence produced by the moving
party as well as the absence of admissible evidence in favor of
an essential element of the non-moving party’s claim.

Adams v.

Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).
II. UNCONTROVERTED FACTS
The following facts appear to be uncontroverted.

After his

February 8, 2011 dismissal as a City of Olathe police officer,
plaintiff filed an “appeal request” on February 15, 2011.

The

“appeal

and

request”

asked

for

benefits.

On

restoration

of

referencing

plaintiff’s

reinstatement,
the

“appeal

of

same

day,

backpay
in

termination,”

a

letter

plaintiff’s

attorney sent a letter to defendant Wilkes, the City Manager,
asking

for

various

documents

and

“name-clearing hearing” comply

demanding

that

plaintiff’s

with due process requirements.

Thus, it appears that from the beginning that plaintiff combined
his

appeal

of

his

clearing hearing.

termination

with

his

request

for

a

name-

The letter asked for a hearing during the

week of March 7, 2011.

3

In

response,

on

February

18,

2011,

defendant

Wilkes

informed plaintiff’s attorney that city regulations required the
hearing

to

be

conducted

by

March

2,

2011,

that

no

further

documentation would be provided and that city appeal procedures
did not permit legal representation of any party during the
hearing

process.

On

February

25,

2011,

plaintiff’s

counsel

replied with a letter that accused Wilkes of failing to follow
the

document

production

policies

used

in

previous

appeals

involving police officers and of failing to follow due process
requirements.
On

March

1,

2011,

plaintiff’s

attorney

again

wrote

to

defendant Wilkes demanding various materials he deemed extremely
important

to

plaintiff.

The

letter

referenced

“Appeal

of

Termination of Officer Jason Gorman” at the beginning and the
body of the letter used the terms “due process hearing” and
“name-clearing hearing.”
defendants

had

not

plaintiff,

plaintiff

The correspondence stated that because

provided
would

the
not

necessary
participate

information
in

a

to

hearing

scheduled on March 2, 2011.
Plaintiff did not appear at the March 2, 2011 hearing and
plaintiff was informed via a letter by the hearing officer,
Chris Kelly, that the hearing regarding his “appeal” commenced
without his appearance and then was continued to March 7, 2011.
Mike

Price,

an

assistant

city
4

attorney,

wrote

plaintiff’s

attorney on March 3, 2011 and warned that if plaintiff failed to
appear on March 7, 2011 “the hearing will be closed and no
further appeal will be heard.”
On March 4, 2011, plaintiff’s attorney wrote referencing
“Appeal of Termination of Officer Jason Gorman” that plaintiff,
“who is a member of the Army Reserve, has been activated, and
will be going on active duty . . . March 6, 2011” and therefore
“cannot be present for the hearing which is currently scheduled
for . . . March 7, 2011.”

The letter referred to the hearing

as a “due process hearing.”
deploy on March 6, 2011.

As it turned out, plaintiff did not

But, plaintiff decided not attend the

March 7, 2011 hearing because his attorney had already written
that plaintiff would not be present at the hearing.
On March 7, 2011, Chris Kelly, the hearing officer, wrote
to plaintiff, acknowledging his absence from the hearing and
requesting:
In order to substantiate your absence from the hearing
it is requested that a copy of the March 6th 2011
military deployment orders be provided to the City.
If a copy of the orders is provided in a timely manner
the appeal hearing will be continued to a future date
after your return.
If a copy of the orders is not
provided to the City, your recourse via this appeal
hearing will be forfeited.
Also on March 7, 2011, Mike Price, the assistant city attorney
wrote to plaintiff and his attorney referencing the “Appeal of
Termination of Officer Jason Gorman.”
part:
5

This letter stated in

This letter is a follow-up to your letter and our
telephone conversations of Friday, March 4.
In your
letter you stated that Mr. Gorman could not attend his
appeal hearing scheduled for 8 am Monday, March 7th as
his deployments orders had been moved up to March 6,
2011.
You asked that he be placed on administrative
leave until his return from military orders.
. . . I informed you that the City would not
place Mr. Gorman on administrative leave, but would
allow Mr. Gorman to request his post termination
hearing within 60 days of his return from active duty.
I also informed you that the City needed a copy of Mr.
Gorman’s military orders. You later telephoned me and
left a voice message that Mr. Gorman had informed you
that his orders accelerating his deployment were
verbal. I returned your call and stated to you that I
had served 22 years in the Kansas National Guard and I
was aware that no one deployed on verbal orders.
I
stated that the City needed a copy of the orders
preferably before the scheduled hearing time, but not
later than Monday or Tuesday, March 7th or 8th.
I
further informed you that unless the City received a
copy of the orders, the hearing would not be continued
and Mr. Gorman would not be afforded any further
opportunity to appeal his termination.
Olathe Police Department personnel contacted
Major Parker the officer in charge of SFC Gorman’s
pending deployment. In response to an email regarding
SFC Gorman’s deployment date, Major Parker, in a
telephone conversation and in a follow-up email stated
SFC Gorman will deploy sometime in September 2011 and
will be required to attend pre-mobilization training
in July or August 2011.
Sergeant
Haldeman
contacted
Mr.
Gorman
by
telephone at his home Monday morning. The purpose of
Sergeant Haldeman’s telephone call was to ask Mr.
Gorman about the Olathe Police Department property he
needs to turn in.
Mr. Gorman answered the phone and
discussed the missing property with Sergeant Haldeman.
Since Mr. Gorman did not depart on Sunday as the
City was informed and will not depart until July or
August 2011, the City will consider Mr. Gorman’s
request for an appeal as a closed matter. No further
hearings will be scheduled on this matter.
(emphasis added).

6

On July 14, 2011, plaintiff’s attorney wrote to defendants’
attorney in reference to plaintiff’s “Appeal of Termination of
Officer Jason Gorman” and began by stating:
This letter is being written in response to your
correspondence of March 7, 2011, wherein you indicated
that the City rejected Officer Gorman’s request for a
name-clearing hearing that comports with due process.
My response to your letter has been delayed due to
communication difficulties with our client from his
deployment to Afghanistan.
The letter demanded a “name-clearing hearing” within 60 days of
plaintiff’s

return

from

Afghanistan

and

made

other

regarding the procedures which should be employed.
11,

2011,

counsel

for

the

City

of

Olathe

demands

On August

responded

that

plaintiff had misinformed the City as to his unavailability to
participate in the hearing scheduled for March 7, 2011 and that
on that date the City had informed plaintiff’s attorney that
“the City would not grant any further hearings.”

The letter

further stated:
Since my letter of March 7, 2011 the City has received
information that the military unit Mr. Gorman was to
deploy to Afghanistan with was not his own and in fact
the unit did not deploy.
If Mr. Gorman was deployed
since then it does not change the fact that Mr. Gorman
never supplied the City with copies of his orders; was
available on March 7, 2011 to participate [in] the
hearing he requested and misinformed the City as to
his status.
The City’s decision of March 7, 2011 stands.
The
City
will
not
afford
Mr.
Gorman
any
further
opportunities to participate in a hearing.
Plaintiff was a member of the Kansas Army National Guard
and was scheduled to deploy to Afghanistan at some point in
7

2011.

Plaintiff learned of an opportunity to deploy earlier if

he worked for a military contractor named AECOM.
chose this opportunity.
the

details

of

his

representatives.

Plaintiff

But, his counsel erroneously described

deployment

Plaintiff

when

asserts

communicating
that

he

with

was

city

initially

informed that he would deploy with AECOM on March 14, 2011, but
then was verbally informed that the deployment date would be
advanced

to

March

6,

2011.

On

or

around

March

4,

2011,

plaintiff was informed that the date of deployment would be
delayed to March 13, 2011.
Plaintiff

alleges

that

sometime

after

March

7,

2011

he

served more than 76 days in Afghanistan where his appearance and
duties were indistinguishable from that of U.S. Army personnel.
He returned to the United States only for brief intervals and
completed his service in Afghanistan on or around April 1, 2013.
Plaintiff alleges that he had an “emergency essential” status
while in Afghanistan and that his ability to communicate and
work with his counsel was severely impaired by his preparations
for and service with the military contractor in Afghanistan.
III.

PLAINTIFF’S CLAIM WAS UNTIMELY FILED.
Plaintiff makes two arguments against defendants’ motion to

dismiss and against the contention that plaintiff’s motion to
amend is futile.

Plaintiff contends, first, that he filed the

complaint within two years of learning that defendants would not
8

provide him with a name-clearing hearing.

Second, plaintiff

contends that the limitations period should be equitably tolled
because plaintiff was unable to pursue his claim since he was
serving

as

an

employee

of

a

military

Department of Defense in Afghanistan.

contractor

for

the

We reject these arguments

for the following reasons.
A.

Plaintiff’s § 1983 action accrued on March 7, 2011.

The

critical

date

for

determining

when

the

limitations

period began to run in this case is when plaintiff knew or
should have known that his constitutional rights were violated.
Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004).
Plaintiff contends that he appealed his termination as a police
officer

and

hearing.

that

he

separately

Doc. No. 18, p. 9.

asked

for

a

name-clearing

He asserts that he was willing to

combine the appeal and the name-clearing hearing as long as he
received the due process to which he was entitled. Id.

He

claims that he learned his request for an “appeal” was a “closed
matter” on March 7, 2011, but that he was not aware that he was
not going to receive the name-clearing hearing until August 11,
2011.

Id. at p. 11.

This contention, however, is belied by the

communication from plaintiff’s counsel on July 14, 2011 which
expressly
rejected

states

counsel’s

plaintiff’s

March 7, 2011.

request

understanding
for

a

that

the

name-clearing

City

had

hearing

on

There is no evidence that a window for a name9

clearing

hearing

was

left

open

after

March

7,

2011

or

that

plaintiff could reasonably entertain such an understanding after
March

7,

2011.

Throughout

the

correspondence

between

the

parties, the appeal request, the name-clearing hearing request
and

the

matter.

due

process

hearing

request

were

considered

as

one

When plaintiff was informed on March 7, 2011 that the

appeal request was considered a closed matter and that there
would

be

no

would

know

denied.

further
that

his

hearings
alleged

scheduled,
right

to

a

due

reasonable
process

person

had

been

Thus, the two-year limitations period began running

more than two years before plaintiff filed this lawsuit.

See

(5th

Cir.

Rosenstein

v.

City

of

Dallas,

876

F.2d

392,

396

1989)(“An employer’s denial of an employee’s request to appeal
the employer’s discharge decision, which rested on guilt of the
stigmatizing

charge,

is

a

denial

of

a

name-clearing

hearing

unless the employer specifically notifies the employee of the
availability of an alternative procedure, which will provide the
employee

with

a

public

forum

to

clear

his

name

before

the

governing body that discharged him.”).
Plaintiff also alleges that he was not aware that his right
to a hearing was foreclosed on March 7, 2011 because the hearing
officer, Chris Kelly, left open the possibility that the City
would conduct a hearing upon plaintiff’s return from Afghanistan
if plaintiff could produce his March 6, 2011 deployment orders.
10

Plaintiff,

however,

did

not

produce

those

orders,

which

assistant city attorney demanded by March 7 or March 8.

the

Indeed,

according to plaintiff, the orders were verbal and could not be
produced.
appeal

So,

hearing

assistant

city

according
was

to

the

forfeited.

attorney

Kelly’s
This

wrote

was

to

displeasure that plaintiff did not

letter,

plaintiff’s

confirmed

plaintiff,

when

the

indicating

attend the March 7, 2011

hearing when plaintiff was available to do so, and concluding
that no hearings on the matter would be conducted.

Although

plaintiff did not deploy until March 13, 2011, neither he nor
his attorney contacted the City about the matter again until the
July 14, 2011 letter which affirmed that the City had denied
plaintiff’s
2011.

request

Accordingly,

for
the

a

name-clearing

court

finds

hearing

nothing

in

on
Mr.

March

7,

Kelly’s

letter which leaves any doubt on this record that plaintiff was
informed on March 7, 2011 that there would be no name-clearing
hearing or hearing on his appeal.
B.
The limitations period was not tolled by plaintiff’s
service in Afghanistan.
The court finds that there is no material issue of fact to
support a claim of equitable tolling.

Because a Kansas statute

of limitations is borrowed to provide the limitations period
under 42 U.S.C. § 1983, the court also applies the equitable
tolling rules of Kansas.

Wallace v. Kato, 549 U.S. 384, 394
11

(2007);

Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.) cert.

denied,

549

U.S.

1059

(2006).

We

note

that

in

general,

equitable tolling is considered a “rare remedy to be applied in
unusual circumstances.”
equitable

tolling

has

Wallace, 549 U.S. at 396.
been

applied

in

In Kansas,

situations:

where

a

defendant has acted or withheld material knowledge to induce a
delay in the filing of a cause of action.

Friends University v.

W.R. Grace & Co., 608 P.2d 936, 941 (Kan. 1980).
labeled equitable estoppel.

This is often

See Baker v. Board of Regents, 768

F.Supp. 1436, 1439 (D.Kan. 1991).

Equitable tolling has also

been applied in Kansas where administrative exhaustion or the
pendency

of

other

legal

proceedings

prevents

a

lawsuit

from

being filed (Wagher v. Guy’s Foods, Inc., 885 P.2d 1197, 1204-06
(Kan. 1994); Keith v. Schiefen-Stockham Ins. Agency, Inc., 498
P.2d

265,

273

(Kan.

1972)),

and

otherwise

when

a

party

is

effectively prevented from exercising a legal remedy (see Sladen
v. Sixta, 825 P.2d 119, 125 (Kan. 1992)(delay caused by clerk’s
error in addressing an alias summons not charged to plaintiff).
None of these grounds are alleged to exist on this record.
Plaintiff
equitable

has

tolling.

the

burden

Baker,

of

supra.

establishing
Here,

a

basis

plaintiff

has

for
not

alleged or demonstrated grounds sufficient to invoke equitable
tolling under Kansas law.

Plaintiff was represented by counsel

and, according to the July 14, 2011 letter, had authorized his
12

counsel to file a lawsuit.

According to plaintiff’s affidavit,

he returned to the United States for “brief intervals” before
concluding his work as a contractor in Afghanistan approximately
April 1, 2013.

Under these circumstances, the court does not

believe his deployment to Afghanistan effectively prevented him
from filing a timely lawsuit in this case.
Plaintiff urges the court to follow the “policy” set forth
in the Servicemembers Civil Relief Act of 2003 (SCRA).

Under

this statute, in order to enable servicemembers to devote their
entire energy to the defense needs of the Nation, “the period of
a

servicemember’s

military

service

may

not

be

included

in

computing any period limited by law, regulation, or order for
the bringing of any action or proceeding in a court.”
U.S.C.A. § 526(a).
the

uniformed

A “servicemember” is defined as “a member of

services,

as

that

term

is

101(a)(5) of title 10, United States Code.”
511(1).

50 App.

defined

in

section

50 App. U.S.C.A. §

The term “uniformed services” is defined to mean “the

armed forces” or the commissioned corps of the National Oceanic
and Atmospheric Administration or the Public Health Service.
U.S.C.A. § 101(a)(5).

The “armed forces” is defined to mean

“the Army, Navy, Air Force, Marine Corps, and Coast Guard.”
U.S.C.A. § 101(a)(4).

10

10

Thus, employees of military contractors

do not fall within the definition of “servicemember” and are not

13

covered

by

the

SCRA.

In

re

Gaddy,

he

does

2004

WL

2044107

*3-4

(Bkrtcy.D.Kan. 4/12/2004).
Plaintiff

admits

that

not

have

the

statutory

protection of “armed forces” personnel under the SCRA.
18,

p.

tolling

15.

Nevertheless,

should

apply

plaintiff

because

his

argues

duties

and

that

Doc. No.
equitable

service

to

his

country were so similar to that of armed forces members.
the

purposes

of

this

order,

the

court

shall

grant

For
that

plaintiff’s conduct and service in Afghanistan were comparable
to that of armed services personnel.
believe

this

similarity

is

a

But, the court does not

sufficient

extraordinary

or

exceptional circumstance for a Kansas court to equitably toll
the running of a statute of limitations.
IV.

PLAINTIFF’S MOTION TO AMEND SHALL BE DENIED AS FUTILE.
It is well-established that leave to amend may be denied if

the

complaint,

as

amended,

would

be

subject

to

dismissal.

Jefferson County Sch. Dist. v. Moody’s Investor’s Services, 175
F.3d 848, 859 (10th Cir. 1999).

Here, plaintiff seeks leave to

amend the complaint to allege that plaintiff was denied a nameclearing hearing on August 11, 2011.
because

the

dismissal

complaint

because

as

amended

plaintiff

was

This amendment is futile

would

first

still

denied

be
a

subject

to

name-clearing

hearing on March 7, 2011 – more than two years before he filed
this action – and there are no good grounds to toll the running
14

of the limitations period.

The August 11, 2011 denial of a

hearing merely repeated the position taken on March 7, 2011.
So, the limitations period would not start over again on August
11, 2011.
261

See Delaware State College v. Ricks, 449 U.S. 250,

(1980)(limitations

periods

normally

commence

when

the

employer’s decision is made and are not tolled by the pendency
of a grievance or request to review the decision); Almond v.
Unified Sch. Dist. No. 501, 665 F.3d 1174, 1179 (10th Cir. 2011)
cert. denied, 133 S.Ct. 317 (2012)(same).
V.

CONCLUSION
In summary, defendants’ motion to dismiss (Doc. No. 6),

treated as a motion for summary judgment, shall be granted.
Plaintiff’s

motion

to

amend

(Doc.

No.

11)

shall

be

denied.

Plaintiff’s motion for oral argument (Doc. No. 25) shall also be
denied.
IT IS SO ORDERED.
Dated this 5th day of November, 2013, at Topeka, Kansas.

s/Richard D. Rogers
United States District Judge

15