Newton v. Unified Government of Wyandotte County and Kansas City, Kansas

Filing 15

MEMORANDUM AND ORDER granting in part and denying in part 7 Motion to Dismiss Plaintiff's Complaint. It is further ordered that plaintiff may file an amended complaint consistent with this memorandum and order no later than Monday, July 3, 2017. Signed by District Judge John W. Lungstrum on 06/15/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Kecia Newton,
Plaintiff,
v.

Case No. 17-cv-2043-JWL

The Unified Government of Wyandotte
County and Kannsas City, Kansas,
Defendant.
MEMORANDUM & ORDER
Plaintiff filed this lawsuit against her former employer alleging that defendant failed to
promote plaintiff and then terminated her employment on the basis of her race in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In addition, plaintiff asserts
claims under 42 U.S.C. § 1983 for deprivation of a liberty interest without due process of law
and malicious prosecution. This matter is presently before the court on defendant’s motion to
dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 7).
As will be explained, the motion is granted in part and denied in part.

Standard
The court will grant a motion to dismiss for failure to state a claim when a plaintiff’s
factual allegations fail to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007).

The complaint need not contain detailed factual

allegations, but a plaintiff’s obligation to provide the grounds of entitlement to relief requires
more than labels and conclusions; a formulaic recitation of the elements of a cause of action will

not do. See id. at 555. The court must accept the facts alleged in the complaint as true, even if
doubtful in fact, see id., and view all reasonable inferences from those facts in favor of the
plaintiff, see Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). Viewed as such, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.

Background
Consistent with the applicable standard, the court accepts as true the following wellpleaded facts alleged in plaintiff’s complaint. See Sanders v. Mountain Am. Federal Credit
Union, 689 F.3d 1138, 1141 (10th Cir. 2012). Plaintiff is an African-American female who
began her employment with defendant in February 2008 as a customer service representative in
the “3-1-1” department.

In January 2013, plaintiff moved to the Delinquent Real Estate

Department where she worked as an administrative support specialist. In that capacity, plaintiff
supported the tax sale process through the Wyandotte County District Court. Plaintiff took on
additional duties in September 2014 when the department’s business coordinator resigned her
employment. In March 2015, plaintiff started receiving out-of-grade pay to compensate for
those new duties. According to the complaint, the first fifteen years of plaintiff’s employment
passed without incident. Despite her expression of interest in formally applying for the business
coordinator position, defendant refused to post the position and plaintiff continued to perform
the duties associated with the position until mid-October 2015.
On October 16, 2015, plaintiff was summoned into a meeting by a member of
management, who was accompanied by a police officer employed by the Unified Government.
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The officer questioned plaintiff about computer crimes relating to a tax sale that she allegedly
committed in the course of her employment. Plaintiff denied any wrongdoing and, without
warning, was taken into custody by the officer and escorted to the police department. According
to plaintiff, a management-level employee in the Delinquent Real Estate Department provided
false information to the police which caused plaintiff’s arrest. Plaintiff was charged with four
counts of criminal conduct.
On October 21, 2015, defendant suspended plaintiff’s employment without pay pending
the resolution of the charges against her. A Wyandotte County District Judge dismissed the
charges against plaintiff in May 2015 on the motion of plaintiff’s counsel. Despite the fact that
the charges were dismissed, defendant never reinstated plaintiff to her position. In June 2016,
plaintiff received a letter from defendant’s director of operations advising plaintiff that
defendant was terminating her employment effective October 16, 2015. Thereafter, plaintiff
submitted information to defendant refuting the charges against her and requesting a grievance
hearing. On July 11, 2016, defendant notified plaintiff that a grievance hearing would be held
on July 13, 2016. Plaintiff’s counsel was denied the opportunity to attend the hearing with
plaintiff. After the hearing, defendant decided to uphold the termination decision.
Plaintiff filed a charge of discrimination with the EEOC and, after receiving her notice of
right to sue, filed her complaint here.

Failure-to-Promote Claim
Defendant moves to dismiss plaintiff’s failure-to-promote claim on the grounds that
plaintiff failed to include that claim in her charge of discrimination. Plaintiff concedes in her
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response that her charge does not include a failure-to-promote claim and that the claim must be
dismissed. This aspect of defendant’s motion, then, is granted. See Apsley v. Boeing Co., 691
F.3d 1184, 1210 (10th Cir. 2012) (exhaustion of administrative remedies is a prerequisite to suit
and administrative remedies generally must be exhausted as to each discrete instance of
discrimination or retaliation).

Discriminatory Discharge Claim
In her complaint, plaintiff alleges that her employment was terminated based on her race
in violation of Title VII. Defendant moves to dismiss this claim on the grounds that plaintiff has
failed to allege any facts plausibly suggesting that similarly situated employees outside of her
protected class were treated more favorably. This argument borders on frivolous and is denied.
Plaintiff clearly alleges that defendant treated Caucasian employees who engaged in similar or
more egregious conduct more favorably than it treated plaintiff. No more is required at this
stage. See Townsend-Johnson v. Cleveland, 494 Fed. Appx. 833, 837 (10th Cir. June 25, 2012)
(the plaintiff stated plausible claim for relief for race discrimination under § 1981 where she
alleged that she is an African-American, that the defendant terminated her employment and that
employees outside the protected class were not terminated for similar conduct); Khalik v. United
Air Lines, 671 F.3d 1188, 1192-93 (10th Cir. 2012) (plaintiff need not set forth prima facie case
for each element but must plead enough facts to satisfy plausibility requirement). Moreover,
because a plaintiff is not required to show differential treatment of persons outside the protected
class to satisfy the initial prima facie burden under McDonnell Douglas, it defies logic to
suggest that a plaintiff’s complaint might be subject to dismissal for failing to allege adequately
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that similarly situated employees outside the protected class were treated more favorably. See
Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir. 2005) (comparison to similarly
situated employees is not required as part of a plaintiff’s prima facie case; the relevant prima
facie element may be framed more broadly, requiring only a “showing of circumstances giving
rise to an inference of discrimination”); English v. Colo. Dept. of Corrs., 248 F.3d 1002, 1008
(10th Cir. 2001) (In disciplinary discharge cases, a “plaintiff does not have to show differential
treatment of persons outside the protected class to meet the initial prima facie burden under
McDonnell Douglas.”).

Defendant’s motion to dismiss plaintiff’s discriminatory discharge

claim is denied.

Section 1983 Claims
Plaintiff alleges in her complaint that she was deprived of a liberty interest without due
process.1 Specifically, plaintiff asserts that she has a liberty interest in her good name and
reputation as they relate to her continued employment and that defendant deprived her of that
interest by making false statements about plaintiff during the course of her termination. She
further alleges that the deprivation was without due process because defendant refused to
provide plaintiff with a name-clearing hearing.

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It is unclear whether plaintiff also alleges the deprivation of a property interest in her continued
employment. Plaintiff uses the phrase “property interest” in her complaint, but she fails to assert
that claim in response to defendant’s motion. In any event, the court grants defendant’s motion
to dismiss plaintiff’s complaint to the extent plaintiff’s complaint can be construed to include
this allegation. Plaintiff’s allegations do not plausibly suggest that she enjoyed a protected
property interest in her continued employment. See McDonald v. Wise, 769 F.3d 1202, 1211-12
(10th Cir. 2014) (at-will employee has no property interest in continued employment).
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Defendant does not dispute that a public employee has a liberty interest in her good name
and reputation as they relate to her continued employment. See McDonald v. Wise, 769 F.3d
1202, 1212 (10th Cir. 2014) (citation omitted).

Nonetheless, defendant contends that the

complaint is devoid of any allegations plausibly suggesting that defendant infringed on
plaintiff’s liberty interest. The government infringes upon a public employee’s liberty interest in
his or her good name and reputation when: (1) it makes a statement that impugns the good name,
reputation, honor, or integrity of the employee; (2) the statement is false; (3) the statement is
made during the course of termination and forecloses other employment opportunities; and (4)
the statement is published, in other words disclosed publically. Id. (citing Workman v. Jordan,
32 F.3d 475, 481 (10th Cir. 1994)). According to defendant, plaintiff’s claim must be dismissed
because plaintiff fails to allege any specific facts concerning the allegedly false statements made
by the government in connection with plaintiff’s termination; she fails to allege that any
statements were made public; and she fails to allege that any statements made by defendant
foreclosed other employment opportunities.
In her complaint, plaintiff sets forth only conclusory allegations concerning defendant’s
infringement on her liberty interest.

She alleges that defendant made “numerous [false]

statements that injured [her] reputation or imposed a stigma that foreclosed her freedom to take
advantage of other employment opportunities.” She fails to identify any specific statements
made by defendant and she fails to allege that any potential employers had knowledge of those
statements and denied employment to plaintiff on the basis of those statements.

More

importantly, her complaint is devoid of any allegation that defendant published any statement
about plaintiff’s termination.
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In her response to defendant’s motion to dismiss, plaintiff does not address these
deficiencies. She simply reiterates that she was denied a name-clearing hearing and that the
denial is a violation of her due process rights. This response conflates the issue of whether
plaintiff has sufficiently pled a deprivation of her liberty interest with the separate issue of
whether plaintiff has sufficiently pled that the deprivation was without due process.

See

McDonald, 769 F.3d at 1212-13. Because plaintiff does not dispute that her complaint fails to
set forth facts sufficient to state a plausible claim for the deprivation of a liberty interest under §
1983, the claim is dismissed. The court, however, will permit plaintiff an opportunity to file an
amended complaint to the extent she is able to assert facts concerning defendant’s publication of
false statements and the foreclosure of other employment opportunities.
Finally, plaintiff asserts a claim against defendant under § 1983 for malicious prosecution
in violation of the Fourteenth Amendment. Defendant moves to dismiss this claim for two
reasons—on the grounds that plaintiff has failed to allege any facts sufficient to support
municipal liability (i.e., a policy or custom of the defendant was the moving force behind the
alleged violation) and on the grounds that malicious prosecution claims are not cognizable under
the Fourteenth Amendment. Defendant is correct as to both arguments. Plaintiff’s complaint
suggests that defendant is liable based solely on the false accusations of a rogue managementlevel employee in plaintiff’s department. But a local government cannot be held liable under §
1983 solely because its employees inflicted injury on the plaintiff. Hinton v. City of Elwood,
Kan., 997 F.2d 774, 782 (10th Cir. 1993).

Rather, to prove a § 1983 claim against a

municipality, a plaintiff must establish the existence of a municipal policy or custom which
directly caused the injury alleged.

Id.

Plaintiff’s complaint contains no facts remotely
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suggesting the existence of an official policy or custom or any decisions from any individual
with final policymaking authority. In the absence of such allegations, plaintiff has not plausibly
pled her claim for municipal liability. In her response, plaintiff suggests that the “one-time act”
at issue here is such a “pervasive affront to the criminal process” that the Unified Government
must be held liable for it. But while plaintiff acknowledges in her response that the imposition
of municipal liability for a single incident requires evidence that the particular illegal course of
action was taken pursuant to a decision made by a person with authority to make policy
decisions on behalf of the entity being sued, Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996),
she fails to allege in her complaint that anyone with such authority had any involvement with
her arrest or prosecution.
Defendant is also correct that the “relevant constitutional underpinning for a claim of
malicious prosecution under § 1983 must be the Fourth Amendment’s right to be free from
unreasonable seizures rather than the Fourteenth Amendment’s substantive due process
guarantees.” Becker v. Kroll, 494 F.3d 904, 914 (10th Cir. 2007) (prior to trial, the relevant
constitutional underpinning for a claim of malicious prosecution under § 1983 must be the
Fourth Amendment’s right to be free from unreasonable seizures rather than the Fourteenth
Amendment’s substantive due process guarantees). Plaintiff seems to concede as much in her
response wherein she references the elements for a Fourth Amendment malicious prosecution
claim under § 1983. See Margheim v. Buljko, 855 F.3d 1077, 1085 (10th Cir. 2017).
For the foregoing reasons, plaintiff’s malicious prosecution claim is dismissed. As with
plaintiff’s other claim under § 1983, the court will permit plaintiff an opportunity to amend her

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complaint to the extent she is able to assert facts concerning defendant’s liability for a Fourth
Amendment malicious prosecution claim.

IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion to
dismiss plaintiff’s complaint (doc. 7) is granted in part and denied in part.

IT IS FURTHER ORDERED BY THE COURT THAT plaintiff may file an amended
complaint consistent with this memorandum and order no later than Monday, July 3, 2017.

IT IS SO ORDERED.

Dated this 15th day of June, 2017, at Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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