Hwang v. Kansas, State of et al

Filing 37

MEMORANDUM AND ORDER denying 33 Defendant's Motion to Strike; granting 35 Plaintiff's Motion for Leave to File Response Out of Time; finding as moot 14 Defendant's first Motion to Stay Discovery; granting 28 Defendant's Motion to Stay Discovery. See order for details. Signed by Magistrate Judge Karen M. Humphreys on 8/13/2012. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GRACE HWANG,

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Plaintiff,
v.
KANSAS STATE UNIVERSITY,
Defendant.

Case No. 11-4185-EFM

MEMORANDUM AND ORDER

This matter is before the court on:
1. defendant’s motions to stay discovery (Doc. 14 & 28);
2. defendant’s motion to strike response (Doc. 33); and
3. plaintiff’s motion for leave to file out of time (Doc. 35).
All of these motions relate to defendant’s request that discovery be stayed pending a ruling
on Kansas State University’s (K-State’s) motion to dismiss based on sovereign immunity and
failure to state a claim. For the reasons set forth below, discovery will be stayed pending
further order of the court.

Background
This is an action under the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.
Plaintiff, a non-tenured professor at K-State, was diagnosed with leukemia in June 2009. She

underwent an aggressive course of chemotherapy and received a bone marrow transplant
which prevented her from returning to work in the fall of 2009. Although she originally
intended to return to work for the spring 2010 school semester, her doctor ordered her to
“take additional time away from the campus” because of an outbreak of the H1N1virus at the
university. Plaintiff was told by “the business manager for her department” that she had one
year of donated or “shared” leave available to cover her leave for the spring 2010 semester.
In December 2009, K-State’s Human Resources Department (HR) advised plaintiff
to apply for long term disability benefits and plaintiff submitted an application for the
benefits. On February 10, 2010, plaintiff received a call from HR informing her that she
would begin receiving long term disability benefits beginning February 17 and that her
monthly health insurance premium would be $1,340. HR also advised plaintiff that because
she accepted long term disability benefits, she would be forced to resign. Plaintiff did not
want to resign and immediately contacted various members of the university to tell them she
did not want to resign and would return to work by the summer semester.
K-State advised plaintiff that she had two options: 1) resign and accept long term
disability benefits which included health insurance coverage or 2) take leave without pay,
lose her health insurance, and be terminated in June at the end of her yearly contract.1
Believing the university had given her no other viable option, plaintiff agreed to accept the
long term disability benefits and resigned.

1

Plaintiff was employed by K-State on one-year contracts.
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In March 2010, June 2011, and October 2011 plaintiff applied for various positions
at K-State. Plaintiff was not considered for the positions. Plaintiff alleges that K-State failed
to accommodate her disability in the spring of 2010 in violation of the Rehabilitation Act.
Plaintiff also alleges that K-State engaged in discrimination and retaliation in violation of the
Rehabilitation Act.

Motions to Stay Discovery (Doc. 14 & 28)
Motion to Strike (Doc. 33) and
Motion to File Out of Time (Doc. 35)
K-State moved to dismiss plaintiff’s original complaint, arguing that plaintiff failed
to state a claim and that the university was entitled to sovereign immunity. (Doc. 7). K-State
also moved to stay “all Rule 26-related activities” based on its assertion of sovereign
immunity under the Eleventh Amendment. (Doc. 14). Although plaintiff requested and was
granted an extension of time to respond to the motion to stay, she did not file a timely
response to K-State’s first motion to stay discovery. Instead, plaintiff filed an amended
complaint (Doc. 21) and later argued that the pending motion to stay discovery was moot.
(Doc. 27). K-State did not respond to plaintiff’s untimely argument concerning mootness but
simply filed a second motion to stay discovery. (Doc. 28).2 Under the circumstances,
defendant’s first motion to stay discovery (Doc. 14) shall be deemed MOOT.
2

K-State filed a second motion to dismiss, again asserting immunity under the
Eleventh Amendment and failure to state a claim upon which relief may be granted.
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Plaintiff filed an untimely response opposing defendant’s second motion to stay
discovery. (Doc. 27). Arguing that the plaintiff’s response was filed eight days late, K-State
moves to strike the response and asks that its motion to stay be granted as unopposed
pursuant to D. Kan. Rule 7.4(b). (Doc. 33). Plaintiff counters with a motion for leave to file
out-of-time, arguing excusable neglect based on a calendaring error and a newly hired staff
member. The court is satisfied that the untimely filing was the result of excusable neglect;
therefore, plaintiff’s motion for leave to file her response out of time (Doc. 35) is
GRANTED and defendant’s motion to strike (Doc. 33) is DENIED.

Analysis of Second Motion to Stay
When immunity is asserted as a defense, a stay is appropriate pending a ruling on the
immunity issue. See, e.g., Siegert v. Gilley, 500 U.S. 226, 232 (1991)(until the threshold
question of immunity is resolved, discovery and other pretrial proceedings should not be
allowed); Workman v. Jordan, 958 F.2d 332, 336 (10th Cir. 1992)(when a defendant asserts
qualified immunity, the court should grant the defendant’s request for a stay of discovery
until the immunity issue is resolved). Plaintiff counters that a stay is not appropriate because
K-State has waived its sovereign immunity under the Eleventh Amendment by accepting
federal funds. The substantive arguments concerning the validity of K-State’s immunity
defense are the subject of K-State’s pending motion to dismiss and the parties’ legal

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arguments will be addressed by Judge Melgren when he rules on the motion to dismiss.3
Plaintiff also argues that sovereign immunity and qualified immunity are separate and
distinct defenses and that at least two magistrate judges in this district have opined that
discovery may proceed notwithstanding the assertion of sovereign immunity defenses.
McCoy v. United States, Case No. 07-2097-CM, 2007 WL 2071770 at *4(D. Kan. July 16,
2007)(citing Case. No. 06-2071, Afshar v. U.S. Department of State, 2006 U.S. Dist. Lexis
52435 at *2, D. Kan. July 18, 2006).4 However, in the context of staying discovery, the
Tenth Circuit has held that there is “no logical reason” to differentiate between sovereign
immunity and qualified immunity where the defense is “primarily one of law.” Liverman v.
Committee on the Judiciary, U.S. House of Representatives, 51 Fed. Appx. 825, 2002 WL
31379892 (10th Cir., Oct. 23, 2002)(unpublished). Because the Eleventh Amendment
immunity defense in this case is “primarily one of law,” the court will follow Liverman and
3

The stay in this case is granted only because of defendant’s claim of sovereign
immunity. Plaintiff argues that well-established case law holds that the university has
waived immunity to claims under the Rehabilitation Act, an argument that defendant does
not address. Defense counsel is admonished to review Fed. R Civ. P. 26(g) and the
possibility of sanctions if the court determines that the objection to proceeding with
discovery based on sovereign immunity was asserted to cause unnecessary delay.
4

In McCoy, Judge Sebelius initially denied the government’s motion to stay (July 2,
2007) but, on reconsideration, granted the motion and stayed discovery pending a ruling
on the motion to dismiss (July 16, 2007). McCoy provides questionable support for
plaintiff’s argument.
In Afshar, Judge Rushfelt denied the government’s motion to stay discovery on
July 18, 2006 and the government appealed his ruling to the district judge. Judge
Murguia granted the government’s motion to dismiss on July 31, 2006 and the appeal was
moot. Contrary to plaintiff’s suggestions, there is not a well-established practice in this
district of proceeding with discovery before the issue of sovereign immunity is resolved.
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stay discovery pending a ruling on K-State’s sovereign immunity defense.

IT IS THEREFORE ORDERED that defendant’s second motion to stay discovery
(Doc. 28) is GRANTED pending further order of the court. Defendant’s first motion to stay
(Doc. 14) is MOOT and motion to strike (Doc. 33) is DENIED. Plaintiff’s motion for leave
to file out of time (Doc. 35) is GRANTED.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 13th day of August 2012.

S/ Karen M. Humphreys
____________________________
KAREN M. HUMPHREYS
United States Magistrate Judge

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