Hawkins v. Board of County Commissioners of Coffey County, Kansas, The et al

Filing 38

MEMORANDUM AND ORDER granting 29 Motion to Amend Complaint. Plaintiff shall file her First Amended Complaint as a separate docket entry in this case within two (2) business days from the date of this order. Signed by Magistrate Judge K. Gary Sebelius on 7/13/18. (bh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAURA HAWKINS,
Plaintiff,
v.

Case No. 17-2687-KHV

BOARD OF COUNTY COMMISSIONERS
OF COFFEY COUNTY, KANSAS,
CHRISTOPHER PHELAN;
KAREN MALEY; and BRENDA CHERRY,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the court upon Plaintiff’s Motion for Leave to File a First
Amended Complaint (ECF No. 29). Defendants oppose the motion because they contend some
of plaintiff’s claims are subject to dismissal. For the reasons stated below, the motion is granted.
I.

Background

Plaintiff filed this suit against the Board of County Commissioners of Coffey County,
Kansas; Christopher Phelan, the county attorney; Karen Maley, the county treasurer; and Brenda
Cherry, the county treasurer from 2012 to 2017.1 Plaintiff asserts claims against Ms. Cherry and
the county for alleged unpaid overtime wages in violation of Fair Labor Standards Act (FLSA),
29 U.S.C. § 201, et seq., and the Kansas Wage Payment Act (KWPA), K.S.A. 44-313, et seq.
She also asserts 42 U.S.C. § 1983 claims against the county, Mr. Phelan, and Ms. Maley for
alleged violations of plaintiff’s First Amendment rights, due process rights, and equal protection
rights.

1

Compl., ECF No. 1.

According to plaintiff’s complaint, Ms. Maley fired her from her position as a clerk in the
Coffey County Treasurer’s Office after plaintiff had unsuccessfully challenged Ms. Maley in the
Republican primary for the treasurer seat and subsequently ran an unsuccessful campaign as a
write-in candidate in the general election. The complaint characterizes the First Amendment
violation as plaintiff’s discharge for her political activity in violation of her rights to free speech
and freedom of association.2 Plaintiff alleges these defendants violated her due process rights by
terminating her employment without a pre-termination hearing. She alleges the employee
handbook and county practice created an implied contract with plaintiff that she would not be
terminated for performance without a pre-termination hearing and that she would not be
terminated except for cause. She also alleges that the handbook created an implied contract with
plaintiff that she would not be terminated for her political activity. Plaintiff’s equal-protection
claim is based on her allegation that the county treated employees who worked for elected
officials differently than it treated those that did not. She alleges that employees working for
elected officials did not receive due process hearings and were not allowed to file grievances.
Defendants moved to dismiss plaintiff’s First Amendment, due process, and equal
protection claims and plaintiff’s KWPA claim.3 Among other things, the motion argues that the
First Amendment does not protect a public employee’s right to be a candidate, to conduct a
campaign, or to continue employment post-candidacy. Plaintiff filed the present motion to amend
at the same time she responded to the motion to dismiss.

2

Compl. at ¶ 46, ECF No. 1.

3

Mem. in Supp. of Defs.’ Mot. for Partial J. on the Pleadings, ECF No. 18.

2

The motion to amend states that plaintiff seeks to amend to “provide more specific
allegations.”4 The proposed amended complaint now characterizes the First Amendment
violation as plaintiff’s discharge for statements made in conjunction with her political activity,
violating her right to free speech.5 Plaintiff’s proposed amended complaint also contains
additional factual allegations in support of her due process claim.
II.

Discussion

When leave of the court is required to amend under Rule 15(a), the court may refuse
leave “only [upon] a showing of undue delay, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of
amendment.”6 “The court should freely give leave when justice so requires.”7 In this case,
defendants oppose the motion to amend on futility grounds, arguing that plaintiff’s first
amendment, due process, equal protection, and KWPA claims are subject to dismissal. As the
parties opposing the amendment, defendants bear the burden of establishing its futility.8
“A proposed amendment is futile if the complaint, as amended, would be subject to
dismissal.”9 Typically, the court analyzes the proposed pleading using the same standard as a

4

Mot. for Leave to File a First Am. Compl. at 1, ECF No. 29.

5

Proposed First Am. Compl. at ¶ 50, ECF No. 29.

Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010) (quoting Duncan v. Manager, Dep’t of Safety, City &
Cty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005)).
6

7

Fed. R. Civ. P. 15(a)(2).

8

Mackley v. Telecom Holdings, Inc., 296 F.R.D. 655, 660 (D. Kan. 2014).

9

Farmers Bank & Trust, N.A. v. Witthuhn, No. 11-2011-JAR, 2011 WL 5920941, at *2 (D. Kan. Nov. 28, 2011)
(citing Jefferson Cnty. Sch. Dist. No. R–1 v. Moody’s Investors’s Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999));
Duncan v. Manager Dep’t of Safety, City & Cty. Of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005)

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motion to dismiss under Fed. R. Civ. P. 12(b)(6).10 “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”11 The court accepts as true “all well-pleaded factual allegations in the complaint
and view[s] them in the light most favorable to the plaintiff.”12 A formulaic recitation of
elements does not satisfy the plausibility standard.13 Rather, plaintiff must offer sufficient factual
allegations to support each claim14 “Determining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.”15 “While the 12(b)(6) standard does not require that [a plaintiff]
establish a prima facie case in her complaint, the elements of each alleged cause of action help to
determine whether [p]laintiff has set forth a plausible claim.”16
A. Plaintiff’s Due Process, Equal Protection, and KWPA Claims and Defendants
Phelan and Maley’s Qualified Immunity Defense
Defendants argue that plaintiff’s due process, equal protection, and KWPA claims are
subject to dismissal for the same reasons set forth in their motion to dismiss, and they also assert
the same qualified immunity defense set forth in that motion. The court addressed a similar

10

Lane Christensen Co. v. Bro-Tech Corp., No. 09-2381-JWL-GLR, 2011 WL 3847076, at *5 (D. Kan. Aug. 29,
2011).
11

Burnett v. Mort. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))).
12

Burnett, 706 F.3d at 1235.

13

Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (Sept. 1, 2011) (citing Twombly, 550 U.S. at 555).

14

Id.

15

Id. (quoting Iqbal, 556 U.S. at 679).

16

Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).

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situation in W&W Steel, LLC v. BSC Steel, Inc.17 In that case, the court rejected a party’s
argument that it should deny a motion to amend as futile because identical claims appearing in
both a previous pleading and in a proposed amended pleading did not state a claim. In that case,
the parties opposing the motion to amend had incorporated by reference their motion to dismiss
certain claims. The court rejected these arguments, reasoning that evaluating futility requires
consideration of proposed amendments, not claims previously pled. The court observed that
screening claims previously pled “would serve no practical purpose because in the event the
court would deny the motion to amend, these claims would remain.”18 While the court may take
up a motion to dismiss and a motion to amend at the same time, effectively analyzing both a
complaint and a proposed amendment, it serves no practical purpose to screen claims previously
pled when the court is only ruling on a motion to amend.
This is the case here. Plaintiff’s due process claim is largely unchanged, and plaintiff has
proposed no changes to her equal protection claim or her KWPA claim. Applying the same logic
set forth in W&W Steel, defendants have not demonstrated how the proposed amendments to the
complaint render these claims futile. In a similar vein, defendants pled their qualified-immunity
defense in their answer,19 and raised it in their motion to dismiss.20 In fact, it appears defendants
have copied and pasted a portion of their motion to dismiss into their response brief opposing the
motion to amend. The qualified-immunity defense bears on the claims previously pled and is not
implicated for the first time by plaintiff’s proposed amendments. Because the proposed

17

No. 11-2613-RDR, 2012 WL 1828928, at *1 (D. Kan. May 18, 2012).

18

Id.

19

Answ. at ¶ 74, ECF No. 13.

20

See Mem. in Supp. of Defs.’ Mot. for Partial J. on the Pleadings at 11-12; 24.

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amendments themselves do not raise further issues or appear to impact the defense previously
asserted, defendants have not demonstrated futility on this basis either.
B. First Amendment Claim
Plaintiff’s First Amendment claim presents a different issue. Plaintiff pled a First
Amendment claim from the outset, but the proposed amended First Amendment claim is
premised on a slightly different set of facts that also represents a shift in legal theory. Plaintiff’s
complaint suggests that the First Amendment violation was the termination of her employment
because she had challenged Ms. Maley in the election.21 The proposed amended complaint still
states that plaintiff’s employment was terminated because she had challenged Ms. Malley in the
election.22 However, it now suggests or clarifies that her discharge was “for statements made in
conjunction with [plaintiff’s] political activity, [which] violates the employee’s First Amendment
rights to free speech.”23 In short, plaintiff now alleges that she was terminated not just because
she ran against Ms. Maley but also because she made certain public statements in conjunction
with her campaign. Specifically, plaintiff alleges that her announcement of her candidacy in the
primary and general elections was protected speech.24 She alleges that during the campaign and
outside of the office, she had accused the treasurer’s office of playing favorites and vowed to
treat all citizens the same, a matter of public concern.25 She alleges that she took issue with the
county’s practice of not encouraging elected officials to make personnel decisions subject to the

21

22

See Compl. at ¶ 46, ECF No. 1.
See Proposed Am. Compl. at ¶ 50, ECF No. 29.

23

Id.

24

Proposed First Am. Compl. at ¶ 19, ECF No. 29.

25

Id. at ¶ 20.

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county’s policies and procedures, which she contends was also a matter of public concern.26 She
alleges that she was critical of county employees for campaigning and writing a letter to be
published by the local newspaper while using their county employee titles, thereby violating
county policy because employees were being paid while they were campaigning, another matter
of public concern.27
In arguing that the statements are not protected speech, defendants address only
plaintiff’s announcement of her candidacy and none of the other statements that plaintiff
contends constitute protected speech. Moreover, the cases cited by defendants largely address
situations in which a plaintiff was discharged from employment after running an unsuccessful
campaign against a defendant or situations in which a plaintiff had failed to allege specific
incidents of protected speech.28 They do not address allegations of retaliatory termination for
specific statements made in conjunction with a campaign. Because of this, defendants have not
demonstrated that the statements are not protected speech.
Defendants argue that even if the alleged statements constitute protected speech, the First
Amendment claim is still subject to dismissal under the Garcetti/Pickering test. When
considering a speech retaliation claim, the “court must balance the First Amendment interests of
that employee, speaking as a concerned citizen, with the government’s interest in ‘promoting the

26

Id. at ¶ 21.

27

Id. at ¶ 22.

28

See Mayfield v. Merchant, No. 09-2033-KHV, 2010 WL 5288152, at *4 (D. Kan. Dec. 17, 2010) (granting
summary judgment in favor of defendant because the First Amendment does not protect a public employee’s right to
be a candidate and because plaintiff had failed to identify any speech that was protected); Warren v. Gaston, 55 F.
Supp. 2d 1230, 1236 (D. Kan. 1999) (finding that an employee did not have a First Amendment right to continued
employment with the incumbent after the election).

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efficiency of the public services it performs through its employees.’”29 In conducting the
Garcetti/Pickering balancing test, the court must weigh:
(1) whether the speech was made pursuant to an employee’s official
duties; (2) whether the speech was on a matter of public concern; (3)
whether the government’s interests, as employer, in promoting the
efficiency of the public service are sufficient to outweigh the
plaintiff’s free speech interests; (4) whether the protected speech
was a motivating factor in the adverse employment action; and (5)
whether the defendant would have reached the same employment
decision in the absence of the protected conduct.30
While the first three factors are questions of law, the last two are questions of fact.31
Defendants contend that plaintiff cannot prevail on the third factor—whether her free speech
interest is outweighed by her employer’s interest in promoting the efficiency of public service. If
plaintiff’s employer’s interest outweighs her interest, the speech is unprotected, and the inquiry
ends.32 They argue that plaintiff’s own assertions in her proposed amended complaint demonstrate
the existence of infighting and actual disruption to the working relationships in the treasurer’s
office resulting from plaintiff’s speech. They point to paragraphs 20-22 in the proposed amended
complaint. The court cannot extrapolate from these paragraphs what defendants take from them.
The paragraphs list instances of alleged protected speech concerning plaintiff’s assessment of
operations in the treasurer’s office. They state nothing about employee discord caused by
plaintiff’s speech. While a developed record could potentially support defendant’s argument, the

29

Eisenhour v. Weber Cty., 744 F.3d 1220, 1227 (10th Cir. 2014) (citing Pickering v. Bd. of Educ. Of Twp. High
Sch. Dist 205, 391 U.S. 563 (1968)); see also Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
30

Id. at 1227-28.

31

Id.

32

McDonald v. City of Wichita, 156 F. Supp. 3d 1279, 1305 (D. Kan. 2016).

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pleadings do not. Defendants have not demonstrated that plaintiff’s First Amendment claim
would fail under the Garcetti/Pickering test.
Defendants’ opposition to the motion to amend largely concerns matters raised in their
pending motion to dismiss rather than addressing the proposed amendments themselves. Because
defendants have not established that the amendments render the claims futile, the court grants
plaintiff’s motion and directs plaintiff to file her amended complaint as a separate docket entry in
this case.
Accordingly,
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to File a First
Amended Complaint (ECF No. 29) is granted. Plaintiff shall file her First Amended Complaint
as a separate docket entry in this case within two (2) business days from the date of this order.
IT IS SO ORDERED.
Dated July 13, 2018, at Topeka, Kansas.
s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge

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