Ruiz v. Grandview Plaza, Kansas, City of et al
Filing
14
MEMORANDUM AND ORDER denying 7 Motion to Dismiss. Signed by District Judge Julie A. Robinson on 1/10/2012. (pp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PATRICIA RUIZ,
Plaintiff,
vs.
CITY OF GRANDVIEW PLAZA,
KANSAS, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Case No. 11-4154-JAR-JPO
MEMORANDUM AND ORDER
This case was removed by Defendants on November 3, 2011, from Geary County,
Kansas District Court. In the Petition, Plaintiff alleges claims of wrongful discharge based on
breach of an implied contract for continued employment and denial of due process against her
former employer the City of Grandview Plaza, Kansas, as well as the Mayor, the City Clerk, and
the City Councilmembers. Before the Court is Defendants’ Motion to Dismiss (Doc. 7) under
Fed. R. Civ. P. 12(b)(6). The motion is fully briefed and the Court is prepared to rule.
Defendants’ motion is denied because Plaintiff has alleged sufficient facts in her Petition to give
rise to a plausible claim that she had an implied contract for continued employment with the
City.
I.
Rule 12(b)(6) Standard
To survive a motion to dismiss, a complaint must present factual allegations, assumed to
be true, that “raise a right to relief above the speculative level” and must contain “enough facts to
state a claim to relief that is plausible on its face.”1 Under this standard, “the complaint must
1
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims.”2 The plausibility standard does not require a showing of probability
that “a defendant has acted unlawfully,”3 but requires more than “a sheer possibility.”4
The plausibility standard enunciated in Bell Atlantic Corp. v. Twombly5 seeks a middle
ground between heightened fact pleading and “allowing complaints that are no more than ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’ which the Court
stated ‘will not do.’”6 Twombly does not change other principles, such as that a court must
accept all factual allegations as true and may not dismiss on the ground that it appears unlikely
the allegations can be proven.7
The Supreme Court has explained the analysis as a two-step process. For the purposes of
a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but]
we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”8 Thus,
the court must first determine if the allegations are factual and entitled to an assumption of truth,
or merely legal conclusions that are not entitled to an assumption of truth.9 Second, the court
must determine whether the factual allegations, when assumed true, “plausibly give rise to an
2
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in the original).
3
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).
4
Id.
5
550 U.S. 544 (2007).
6
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 555).
7
Id. (citing Twombly, 550 U.S. at 556).
8
Iqbal, 129 S. Ct. at 1949–50.
9
Id. at 1950.
2
entitlement to relief.”10 “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”11
Along with her response, Plaintiff submitted evidence outside the pleadings—the “City
of Grandview Plaza Employment Policy Manuel [sic]” (“Manual”).12 Generally, “when matters
outside the pleadings are presented to and not excluded by the court [in deciding a motion under
Rule 12(b)(6)], the motion must be treated as one for summary judgment under Rule 56.”13 The
Court has discretion to accept or reject documents attached to a motion to dismiss pursuant to
Rule 12(b)(6).14 However, “if a plaintiff does not incorporate by reference or attach a document
to its complaint, but the document is referred to in the complaint and is central to the plaintiff’s
claim, a defendant may submit an indisputably authentic copy to the court to be considered on a
motion to dismiss.”15 Here, Plaintiff submits the Manual, which she explicitly refers to in the
Petition, therefore, the Court will consider it in deciding the motion to dismiss.
II.
Petition
The following facts are either alleged in the Petition or constitute portions of the Manual,
attached to Plaintiff’s response to the motion to dismiss. The Court construes the factual
allegations in the light most favorable to Plaintiff.
10
Id.
11
Id. at 1949.
12
Doc. 9, Ex. 1.
13
Fed. R. Civ. P. 12(d).
14
Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1341 (10th Cir. 2000).
15
GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381 (10th Cir. 1997).
3
The City of Grandview Plaza (“City”) is a municipality located in Geary County, Kansas.
Plaintiff was an employee of the City from approximately March 2006 to April 2007, and again
from approximately September 27, 2007 to November 28, 2010. Plaintiff was a Utility
Clerk/Assistant City Clerk during her second period of employment, and City Clerk Shirley
Bowers was her supervisor. Plaintiff understood that she would be trained to replace Ms.
Bowers upon her retirement.
The City provided Plaintiff with an employee handbook that was most recently revised
and updated in April 2009. It provides that the policies contained in the Manual are “established
to . . . develop a program of recruitment, advancement and tenure which will make city service
attractive as a career.”16 The Manual includes a disclaimer that it does “not create contractual
employment rights. All employees are considered to be at-will employees for the purpose of city
employment.”17 The manual includes a section on attendance and leave, generally providing that
vacation and sick leave shall be accrued by each employee. “For sick leave in excess of three
consecutive work days, a supervisor may require a signed statement from a health care provider
verifying the employee’s inability to perform his or her assigned duties because of illness.”18
And to qualify for paid sick leave, the employee or his or her representative “shall notify his or
her immediate supervisor and give the reason for the absence no later that [sic] two hours before
the beginning of the first workday for which sick leave is taken.”19
16
Doc. 9, Ex. 1 ¶ A-1(b).
17
Id. at ¶ A-1(d).
18
Id. at ¶ D-5(c).
19
Id. at ¶ D-5(d).
4
Under the procedures set forth for discipline in the Manual, supervisors are given the
authority and responsibility to discipline employees for violations of the City’s personnel and
department policies. Violation of the personnel policies set forth in the Manual constitutes
grounds for disciplinary action, and “absence without leave” is provided in the Manual as one
example of a cause for termination. When a supervisor determines that disciplinary action
should be applied to an employee, including termination, the supervisor must apply the
Procedure for Disciplinary Action, set forth in paragraph F-4 of the Manual. The procedure
includes meeting with the employee to review the problem and the proposed discipline, giving
the employee an opportunity to refute the fact or argue against the proposed disciplinary action,
and notifying the employee in writing of his or her right to file a grievance under the City’s
grievance procedure. The City’s grievance procedure provides that an employee may file a
grievance concerning various matters, including “as an appeal of any disciplinary action taken
pursuant to these policies.” The grievance procedure requires an employee to first file a
grievance with the supervisor and then with the City Council. The procedure allows for a
hearing but does not require it.
Plaintiff left work very ill on November 17, 2010, with Ms. Bowers’ knowledge. On
November 18, after being examined by a healthcare provider, Plaintiff talked to Ms. Bowers,
who told her to stay home because she sounded terrible. Ms. Bowers had previously advised
Plaintiff that if she ran out of sick leave, her annual leave would be used. On November 19,
Plaintiff received a text message that she could not return to work without a doctor’s note. On
November 22, Plaintiff told Ms. Bowers that she would be required to make a doctor’s
appointment in order to obtain a doctor’s note releasing her to work.
5
Despite providing Ms. Bowers with a doctor’s note, Plaintiff was terminated on
November 28, 2010. She filed a written grievance on December 3, 2010, with her supervisor but
did not receive a timely response. She then filed a second grievance with the City Council.
Defendants did not investigate Plaintiff’s grievance and did not grant her a hearing.
III.
Discussion
Defendants move to dismiss, arguing that Plaintiff has not alleged sufficient facts to
establish an implied contract for continued employment with the City. Plaintiff contends that the
City breached an implied contract by terminating her, based on Ms. Bowers’ representations that
her annual leave could be used instead of sick leave and based on the disciplinary procedure
contained in the Manual that required her supervisor to provide a warning and an opportunity to
file a grievance before terminating her.
Plaintiff’s wrongful discharge, implied contract, and procedural due process claims turn
on the existence of an implied-in-fact contract based on the representations made by the City in
its Manual and by Ms. Bowers statements to Plaintiff.20 Kansas generally follows the
employment-at-will doctrine, meaning “that, in the absence of an express or implied contract
between an employee and employer regarding the duration of employment, either party is free to
end the employment at any time for any reason.”21 The existence of an implied contract
“depends on the intent of the parties, divined from the totality of the circumstances.”22 To
20
See Zywgart v. Bd. of Cnty. Comm’rs of Jefferson Cnty., Kan., 412 F. Supp. 2d 1193, 1199 (explaining
that the plaintiff must show a protectable property interest in continued employment in order to sustain a procedural
due process claim).
21
Palmer v. Brown, 752 P.2d 685, 687 (Kan. 1988); see also, e.g., Foster v. Alliedsignal Inc., 293 F.3d
1187, 1192 (10th Cir. 2002) (citing Morriss v. Coleman Co., 738 P.2d 841, 846 (Kan. 1987)).
22
Anglemyer v. Hamilton Cnty Hosp., 58 F.3d 533, 537 (10th Cir. 1995).
6
determine whether the parties understood and intended the Manual to create an implied contract,
the factfinder must consider several factors:
written and oral negotiations, the conduct of the parties from the
commencement of the employment relationship, the usages of the
business, the situation and objective of the parties giving rise to the
relationship, the nature of the employment, and any other
circumstances surrounding the employment relationship which
would tend to explain or make clear the intention of the parties at
the time said employment commenced.23
This is normally a question of fact for the jury.24 The existence of a disclaimer in the employee
handbook does not determine the issue as a matter of law.25
The Court finds that Plaintiff has alleged sufficient facts to give rise to a plausible claim
that she had an implied-in-fact contract with the City. The question of whether an implied-infact contract was formed by the Manual is a question of fact. While Defendants are correct that
an employment handbook alone is generally insufficient proof of an implied-in-fact contract, the
Court does not evaluate the evidence on a motion to dismiss, only whether Plaintiff’s factual
allegations are sufficient.26 Plaintiff has identified language in the Manual that suggests an
employee would not be terminated unless the supervisor complied with a mandatory disciplinary
procedure. Plaintiff also alleges that she relied on and was expected to comply with both the
Manual and the directions she received from her supervisor. Plaintiff further alleges that the
representations in the Manual were supplemented by Ms. Bowers’ verbal representations to her
23
Id. at 537.
24
Id.; Morriss, 738 P.2d at 848.
25
Anglemyer, 58 F.3d at 538 (discussing Morriss, 738 P.2d at 849).
26
See id. (quoting Farthing v. City of Shawnee, Kan., 39 F.3d 1131, 1140 (10th Cir. 1994)) (discussing the
proof required on summary judgment).
7
both before and during her period of leave. Plaintiff alleges that Bowers initially told her to stay
home because her voice sounded terrible, and that she had previously told Plaintiff that she could
substitute her annual leave for sick leave if desired. Plaintiff contends that she complied with
her supervisor’s request to submit a work release form, and that she told Bowers that this would
take some time to obtain because she was required to make another appointment with her doctor.
Assuming Plaintiff’s factual allegations are true, she has stated a claim that an implied-in-fact
contract existing between her and the City. Because Plaintiff’s claims for wrongful discharge
and procedural due process hinge on the existence of such a contract, the Court denies
Defendants’ motion to dismiss.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion to
Dismiss (Doc. 7) is denied.
IT IS SO ORDERED.
Dated: January 10, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?