Petty v. Topeka, City of et al

Filing 135

MEMORANDUM AND ORDER denying 85 Motion for Judgment; granting 122 Motion to Amend Complaint. See order for details. Signed by District Judge Julie A. Robinson on 4/25/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KATHRYN MARIE PETTY,

)
)
)
)
)
)
)
)
)
_

Plaintiff,
v.
CITY OF TOPEKA,
Defendant.

Case No. 12-4080-RDR

MEMORANDUM AND ORDER
This is an employment discrimination action which is before
the court upon defendant City of Topeka’s motion for judgment on
the

pleadings

pursuant

to

FED.R.CIV.P.

12(c)

as

to

one

of

plaintiff’s claims and plaintiff’s motion for leave to file a
third

amended

complaint.

Defendant

seeks

the

dismissal

of

plaintiff’s disparate impact claim on the grounds that plaintiff
has failed to timely exhaust administrative procedures and on
the

grounds

that

as

pleaded

the

claim

fails

on

the

merits.

Plaintiff asks for leave to file a third amended complaint in
order to add allegations regarding administrative exhaustion of
the disparate impact claim.

Defendant opposes the motion for

leave to file the third amended complaint on the grounds that
the

amendment

would

be

futile

for

the

reasons

asserted

in

defendant’s motion for judgment upon the pleadings.
The disparate impact claim asserts that plaintiff, after
being laid-off or terminated from a position as Deputy Chief in

defendant’s fire department, was not rehired to a position or
positions with the department because of a policy of promoting
from within the department which had a discriminatory impact
against women in violation of Title VII of the Civil Rights Act
of

1964,

42

Discrimination

U.S.C.

§

2000e,

(“KAAD”),

and

K.S.A.

the

Kansas

44-1009.

Act

In

Against

this

case,

plaintiff also makes claims of disparate treatment, retaliation
and violation of constitutional rights.
this

order,

however,

the

court

is

For the purposes of
only

concerned

with

plaintiff’s disparate impact claim.
I.
Standards for the evaluating a motion for judgment on the
pleadings
A motion for judgment on the pleadings under FED.R.CIV.P.
12(c) is governed by the same standards as a motion to dismiss
under FED.R.CIV.P. 12(b)(6).
(10th Cir. 2003).

Ward v. Utah, 321 F.3d 1263, 1266

“A motion for judgment on the pleadings should

not be granted unless the moving party has clearly established
that no material issue of fact remains to be resolved and the
party is entitled to judgment as a matter of law.”
Co.

v.

Burke,

quotation

698

F.3d

omitted).

The

1222,

1228

court

not

(10th
only

Cir.

Colony Ins.

2012)(interior

accepts

all

facts

pleaded by the non-moving party (in this case, plaintiff) as
true, but also grants all reasonable inferences in favor of the
non-moving party.

Id.

2

II.
Plaintiff has exhausted her administrative remedies for a
disparate
impact
claim
regarding
actions
announced
in
defendant’s January 6, 2012 letter to plaintiff.
Defendant’s first argument for judgment on the pleadings is
that

the

court

lacks

subject

matter

jurisdiction

over

plaintiff’s disparate impact claim because plaintiff failed to
timely exhaust her administrative remedies under Title VII and
the KAAD.
A.
Filing an administrative complaint within 300 days or
180
days
of
an
alleged
violation
is
a
jurisdictional
requirement.
Defendant asserts without dispute that before plaintiff may
bring a claim under Title VII or the KAAD, she must first raise
the

claim

in

a

timely

administrative

appropriate government agency.

charge

before

the

As the Tenth Circuit has stated:

“A plaintiff normally may not bring a Title VII action based
upon claims that were not part of a timely-filed EEOC charge for
which the plaintiff has received a right-to-sue letter.”

Simms

v. Oklahoma ex rel. Dept. of Mental Health & Substance Abuse
Services, 165 F.3d 1321, 1326 (10th Cir.) cert. denied, 528 U.S.
815 (1999).

The court lacks subject matter jurisdiction over

Title VII claims that have not been administratively exhausted.
Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1307 (10th
Cir.

2005).

exhaustion

of

The

Tenth

Circuit

administrative

most

remedies

3

as

recently
a

described

“jurisdictional

prerequisite to suit under Title VII” in Manning v. Blue Cross
and Blue Shield, 2013 WL 1490803 *2 (10th Cir. 4/12/2013).1
On

the

exhaustion

other

the

timeliness

considered

is

hand,

an

affirmative

jurisdictional question.
n.1

(10th

Cir.

1996);

administrative

defense,

not

a

Jones v. Runyon, 91 F.3d 1398, 1399

Haney

(D.Kan. 3/30/2010).

of

v.

Donovan,

2010

WL

1284468

*2

The latest possible filing date for an

administrative charge with the EEOC is 300 days after the last
allegedly unlawful act.

Montes v. Vail Clinic, Inc., 497 F.3d

1160, 1163 (10th Cir. 2007).
The same general rules apply to claims brought under the
KAAD.

Sandlin v. Roche Labs., Inc., 991 P.2d 883, 887-89 (Kan.

1999); Best v. State Farm Mut. Auto. Ins. Co., 953 F.2d 1477,
1479

(10th

Cir.

1991).

But,

the

time

limit

for

filing

administrative complaint under the KAAD is six months.

an

K.S.A.

44-1005(i).
B. Plaintiff did not allege a disparate impact claim in an
administrative charge until October 5, 2012.
Plaintiff
complaints.

The

several times.
October

5,

in

this
first

case

has

filed

administrative

two

administrative

complaint

was

amended

The second administrative complaint was filed on

2012

(a

few

months

1

after

plaintiff

filed

this

We cite this recent unpublished decision only because the Tenth Circuit has
“wondered aloud” in other decisions whether it should revisit the rule that
exhaustion is a jurisdictional prerequisite in employment cases. Pretlow v.
Garrison, 420 Fed.Apx. 798, 803 n.4 (10th Cir. 3/22/2011).

4

lawsuit).

Only in the second administrative complaint filed on

October 5, 2012, did plaintiff explicitly allege a disparate
impact claim.
300

days

Defendant argues that the court must count back

from

determine

October

whether

5,

2012

plaintiff

(to

timely

December
filed

an

10,

2011)

to

administrative

complaint regarding her disparate impact claim.
1.
The court has not previously
defendant’s administrative exhaustion argument.
Plaintiff

has

made

three

responses

administrative exhaustion argument.

ruled

to

upon

defendant’s

First, plaintiff contends

that when the court granted plaintiff leave to file a second
amended

complaint,

plaintiff

was

also

given

permission

in

advance to file another amendment when she received right-to-sue
letters

upon

the

administrative

charge

plaintiff

filed

on

October 5, 2012.2

This order, however, was merely a docket

management device.

It did not purport to address any legal

challenge
plaintiff’s

to

the

court’s

claims

or

administrative complaints.

to

subject

matter

jurisdiction

the

timeliness

of

over

plaintiff’s

The order states that “defendants

may move to dismiss the Second Amended Complaint for failure to
state a claim or for lack of subject matter jurisdiction.”
No. 39, pp. 1-2.

Doc.

So, the order does not foreclose the arguments

defendant makes in the motion for judgment upon the pleadings.
2

This order was issued by Judge Murguia of this district when this case was
assigned to his court.

5

2.
Plaintiff’s October 5, 2012 administrative charge
timely raises a disparate impact claim as to employment actions
taken on January 6, 2012.
Plaintiff’s
argument

is

second

that

response

plaintiff’s

to

October

defendant’s
5,

2012

timeliness

administrative

charge is within 300 days (272 days to be exact) of defendant’s
January 6, 2012 letter to plaintiff which rejected plaintiff’s
application

for

the

position

of

Fire

Chief

and

which

also

referenced a general policy of internal hiring for management
positions in the Fire Department.

The letter stated:

Thank you for your December 1, 2011 letter of
application for the Fire Chief position.
While this
position is the only Fire management position that can
be filled by outside applicants, [the] Interim City
Manager . . . made the decision to limit the hiring
process to inside applicants.
Doc. No. 92, Ex. P.
For the purposes of deciding the administrative exhaustion
question, the issue before the court is what falls within the
scope of the October 5, 2012 administrative charge.
administrative

remedies,

“the

contain

concerning

the

facts

underlying
alleged

each

claim[,

discrimination

.

[administrative]
discriminatory

because]
.

.

each

.

discrete

constitutes

its

To exhaust
charge

.

.

must

actions

incident
own

of

unlawful

employment practice for which administrative remedies must be
exhausted.”

Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th

Cir. 2007)(interior quotations omitted).

6

A plaintiff’s claim in federal court is generally
limited
by
the
scope
of
the
administrative
investigation that can reasonably be expected to
follow the charge of discrimination submitted to the
EEOC. . . . We liberally construe charges filed with
the
EEOC
in
determining
whether
administrative
remedies have been exhausted as to a particular
claim.
We emphasize, however, that our inquiry is
limited
to
the
scope
of
the
administrative
investigation that can reasonably be expected to
follow from the discriminatory acts alleged in the
administrative charge.
Id. (interior quotation and citations omitted).
The

October

5,

2012

administrative

charge

reads

substantially as follows:
Following
my
dismissal
from
the
Topeka
Fire
Department, I have applied for open positions as the
Deputy Chief of the Fire Department, and as a Training
Officer, and I have expressed my interest in open
positions.
I previously held the positions of
Training Officer and Deputy Chief, and I am qualified
for those positions.
I was not interviewed for the
positions despite my qualifications.
To the best of
my knowledge a male was hired for the Training Officer
position, and the Deputy Chief position remains open.
The City informed me in a letter dated January 6, 2012
that it would only consider internal candidates for
the Deputy Chief position.
Topeka Charter Ordinance
10, as applied by the City, excludes external
candidates for all positions except Fire Chief and
Third Class Fireman, and violates 29 C.F.R. §
1607.3.A.
The pool of current employees in the Topeka Fire
Department is overwhelmingly comprised of males.
By
limiting
applicants
to
current
Fire
Department
employees, the City’s hiring has a disparate impact on
qualified females, and automatically excludes persons
who were dismissed based on their sex.
Doc. No. 92, Ex. AA.

(emphasis added).

7

This

administrative

impact claim.

charge

obviously

raises

a

disparate

The question is whether it raises a disparate

impact claim as to the Fire Chief position, since the charge
does

not

expressly

reasonable

mention

investigation

that

into

position.

the

We
6,

January

hold

that

2012

a

letter

described in the charge would include an inquiry as to whether
plaintiff was denied the position of Fire Chief because of a
policy which had a disparate impact against women.

Therefore,

we find that there has been administrative exhaustion as to a
disparate impact claim regarding the Fire Chief position.
Without going into unnecessary and confusing detail, the
court

observes

that

plaintiff

has

not

been

completely

clear

regarding what jobs she claims she was denied in accordance with
the

January

Complaint,

6,

Doc.

2012
No.

letter.
40,

¶

See,

117

and

e.g.,

Second

Proposed

Amended

Third

Amended

Complaint, Doc. No. 122-1, ¶ 107

(alleging that applications

for

with

“two

letter).

positions”

were

denied

the

January

6,

2012

Still, it is sufficiently plain from the October 5,

2012 administrative charge that plaintiff is alleging that she
was denied jobs as Deputy Chief and Training Officer because of
the

disparate

impact

of

a

discriminatory

policy.

This

is

sufficient to establish administrative exhaustion, although it
does

not

establish

that

administrative

achieved.
8

exhaustion

was

timely

We recognize that the October 5, 2012 administrative charge
may not be timely as to any action by defendant to fill a Deputy
Fire

Chief

position

plaintiff applied.

or

Training

Officer

position

for

which

Defendant strongly asserts that there was no

Deputy Fire Chief position which was open or filled any time
after February 2011.
to

contend

that

Doc. 107, p. 5.

there

was

a

And neither party appears

Training

Officer

position

open

within 300 days of the October 5, 2012 administrative charge.
But, the timeliness issue as to these positions is not capable
of

being

presented.

decided

upon

the

pleadings

as

they

are

currently

Therefore, the court shall not decide as a factual

matter at this stage whether the October 5, 2012 administrative
charge was timely filed to exhaust plaintiff’s administrative
remedies as to a disparate impact claim which covers plaintiff’s
applications for the positions of Deputy Fire Chief and Training
Officer.

As explained in the next section of this opinion, the

court does not believe that plaintiff has exhausted a disparate
impact claim which extends to any employment action taken more
than 300 days before October 5, 2012.
3. Plaintiff’s first administrative complaint and its
amended versions did not administratively exhaust plaintiff’s
disparate impact claim.
Plaintiff’s
dismissal

of

the

final

response

disparate

to

impact

defendant’s
claim

is

argument

that

for

plaintiff’s

disparate impact claim is within the scope of the charge made in
9

plaintiff’s

first

administrative

versions.

It

important

is

for

complaint
the

court

or

its

to

amended

resolve

this

argument because it controls whether plaintiff can extend her
disparate impact claim to events before December 10, 2011.
In

support

of

this

contention,

plaintiff

notes

that

plaintiff’s first administrative charge states that plaintiff
applied for open positions as the Deputy Chief and as a Training
Officer, but the City did not respond to her applications and
hired

less-qualified

males.

The

court

has

considered

these

words and the rest of plaintiff’s first administrative charge as
amended.

We hold that plaintiff has not alleged a disparate

impact claim in an administrative charge until the October 5,
2012 charge.
first

The term “disparate impact” is not used in the

administrative

charge

or

its

amended

versions.

These

charges do not allege disparate impact as described by Title
VII,

i.e.,

“a

particular

disparate impact.”
charges

assert

employment

impact upon women.
impact claim.

practice

42 U.S.C. 2000e-2(k)(1)(A).

that

practice

employment

defendant
which

had

employed
a

a

that

a

Nor do these

facially

significantly

causes

neutral

discriminatory

Such words would also describe a disparate

See Tabor v. Hilti, Inc., 703 F.3d 1206, 1220

(10th Cir. 2013).
Plaintiff also asserts that the court should define the
scope of the administrative charges by considering defendant’s
10

defense to the charges which, according to plaintiff, was that
defendant

was

following

a

neutral

policy.

argument for the following reasons.
of

proof.3

Plaintiff

has

arguments for exhaustion.

the

We

reject

this

First, there is a failure

burden

of

establishing

her

See McBride v. CITGO Petroleum Corp.,

281 F.3d 1099, 1106 (10th Cir. 2002)(plaintiff has the burden of
showing

exhaustion

Produce

Co.,

2012)(same).

of

Inc.,

remedies);
861

Perkins

F.Supp.2d

Plaintiff,

however,

v.

1285,

only

Federal
1288-89

refers

to

Fruit

&

(D.Colo.
an

answer

defendant filed in this case, not to any document defendant
filed in the administrative proceedings.

Doc. No. 92, p. 9

(citing defendant’s answer at Doc. No. 56, ¶ 112).

Second, if

a

policy

respondent’s

allegation

of

a

neutral

administrative

proceedings

was

administrative

investigation

of

a

of

the

would

seem

expressly

unnecessary

various

allege

policies.

ways)

most

disparate

claim

to

sufficient

impact

follow

employment

disparate
time

since

neutral

to

impact

for

a

most
or

instigate

in
an

claim,

it

plaintiff

to

defendants

(in

nondiscriminatory

This would not be a practical approach to giving

notice of a claim of discrimination.
3

See McKinney v. Eastman

This is a question of exhaustion, not timeliness of exhaustion.
In other
words, the question is whether the first administrative charge and its
amendments served to raise a disparate impact claim before the investigative
agencies, not whether the issue was untimely raised. Because it is an issue
of exhaustion, it is jurisdictional. Because it is jurisdictional, the court
may consider factual matters outside of the pleadings without converting the
motion into a summary judgment motion. See Holt v. U.S., 46 F.3d 1000, 1003
(10th coir. 1995)(discussing a Rule 12(b)(1) motion); Wilson v. Security
Transport Services, Inc., 2011 WL 1430809 *1 (D.Kan. 4/14/2011)(same).

11

Kodak

Co.,

975

F.Supp.

462,

467

(W.D.N.Y.

1997)(cautioning

against a position which would allow virtually every disparate
treatment
also,

claim

Green

to
v.

encompass

a

disparate

Donahoe,

2011

impact

WL

claim);

5119001

see

(D.Colo.

10/28/2011)(refusing to expand a retaliation claim in an EEOC
charge to cover other retaliation claims which might provide
context or support).

Third, courts generally assess what the

reasonable scope of the administrative investigation would be
from

“the

discriminatory

acts

alleged

in

the

administrative

charge,” not from the defense to the discrimination alleged in
the charge.

Jones, 502 F.3d at 1186; see also, Pacheco v.

Mineta, 448 F.3d 783, 789 n.9 (5th Cir.) cert. denied, 549 U.S.
888 (2006).

Finally, other courts have held that a charge of

discriminatory treatment did not encompass a claim of disparate
impact.

See McClain v. Lufkin Industries, Inc., 519 F.3d 264,

274-75 (5th Cir. 2008); Pacheco, 448 F.3d at 788-90; Noreuil v.
Peabody Coal Co., 96 F.3d 254, 258-59 (7th Cir. 1996); Padron v.
Wal-Mart

Stores,

Inc.,

783

F.Supp.2d

1042,

1049-50

(N.D.Ill.

2011); Greater Indianapolis Chapter of NAACP v. Ballard, 741
F.Supp.2d 925, 939-40 (S.D.Ind. 2010); Boldridge v. Tyson Foods,
Inc., 2007 WL 846517 *7 (D.Kan. 3/20/2007); Gordon v. Peters,
489 F.Supp.2d 729, 735-36 (S.D.Tx. 2007); Donaldson v. Microsoft
Corp., 205 F.R.D. 558, 571 (W.D.Wash. 2001); McKinney, supra;
Leisen v. City of Shelbyville, 968 F.Supp. 409, 421-22 (S.D.Ind.
12

1997); Beth v. Espy, 854 F.Supp. 735, 737-38 (D.Kan. 1994).
Cases which have held otherwise involved administrative claims
which

could

be

liberally

construed

as

alleging

an

official

policy which could be the basis for a disparate impact claim.
Gomes v. Avco, 964 F.2d 1330, 1334-35 (2d Cir. 1992)(alleging an
8-years experience rule); Brown v. Coach Stores, Inc., 163 F.3d
706, 712 (2d Cir. 1998)(alleging general practice of promoting
scarcely any minorities in favor of non-minorities); Calibuso v.
Bank

of

America

Corp.,

893

F.Supp.2d

374,

384-85

(E.D.N.Y.

2012)(alleging general practice of distributing accounts in a
manner favoring men over women).
For

the

above-stated

reasons

the

court

shall

find

that

plaintiff did not attempt to exhaust her administrative remedies
as

to

the

disparate

impact

claim

until

plaintiff

filed

the

administrative complaint on October 5, 2012.
III.
Plaintiff’s proposed third amended complaint adequately
alleges a disparate impact claim.
Finally, defendant argues that any disparate impact claim
made by plaintiff fails on its merits.

Defendant admits that

plaintiff has identified a facially neutral employment practice,
which is the practice or policy of promoting or considering only
current Topeka Fire Department employees for Fire Chief or Fire
Department management positions.

Defendant argues though that

the policy affects external candidates equally, as males and
females

are

rejected

if

they
13

aren’t

currently

Topeka

Fire

Department employees.

This assertion is just another way of

stating that the policy is facially neutral – a requirement to
bring

a

disparate

impact

claim

and,

therefore,

it

does

not

demonstrate that the claim fails on the pleadings.
Defendant further asserts that plaintiff fails to identify
a disparate impact between qualified external male and qualified
external female candidates.
a disparate impact claim.

But, that is not necessary to state

Plaintiff asserts that:

The eligible pool of employees for the openings in the
TFD [Topeka Fire Department] is disproportionately
male, and does not include persons who have been
dismissed based on their sex, and the consideration of
only current TFD employees has a disparate impact on
qualified females and discriminates against qualified
females.
Second Amended Complaint ¶ 118, Proposed Third Amended Complaint
¶ 108.

This is an adequate allegation that the facially neutral

policy has the impact of discriminating against qualified female
candidates for positions inside the Topeka Fire Department.

It

is no defense to say that the policy affects male and female
external candidates equally if the impact of the policy is to
maintain a disproportionately large male workforce inside the
Topeka Fire Department.

See Paige v. California, 291 F.3d 1141,

1146-47 (9th Cir. 2002) cert. denied, 537 U.S. 1189 (2003)(an
external pool of job applicants may be a proper comparative
group “in a case in which the plaintiffs . . .

challenge the

validity of a closed promotional process and seek relief in the
14

form of an order requiring that candidates from both within and
without

an

employer’s

ranks

be

allowed

to

compete

for

supervisory vacancies”).
The cases cited by defendant in support of its argument, ORegan v. Arbitration Forums, Inc., 246 F.3d 975 (7th Cir. 2001)
and Carpenter v. Boeing Co., 456 F.3d 1183 (10th Cir. 2006), both
involve summary judgment motions where the courts concluded that
the evidence did not adequately support a claim of disparate
impact.

This case is proceeding upon a motion for judgment upon

the pleadings where the court accepts the allegations in the
operative complaint to be true.

The court is not at the point

in the case where evidence as to the substance of the claims
must be evaluated.
The court takes no position at this stage as to whether
plaintiff can prove her disparate impact claim.
simply

holding

that

the

claim

is

adequately

The court is
pleaded.

In

addition, the court would comment that plaintiff’s claim that
defendant only considered current Fire Department employees for
positions so that plaintiff would not be hired (Second Amended
Complaint – Doc. 40 – at ¶ 120; Proposed Third Amended Complaint
– Doc. 122-1 – at ¶ 110) may be considered a discriminatory
treatment

claim

because

it

alleges

discrimination.

15

an

intentional

act

of

IV.

Plaintiff’s motion to amend shall be granted.
Defendant argues against plaintiff’s motion to amend (Doc.

No. 122) upon the grounds advanced in support of the motion for
judgment

on

commentary

the
thus

pleadings.
far,

Consistent

the

court

with

shall

the

reject

court’s

defendant’s

opposition and grant plaintiff’s motion to amend.4
Again,

this

court

is

not

taking

a

position

substance of plaintiff’s disparate impact claim.

upon

the

Nor is the

court holding that a timely disparate impact claim may be made
as to any position other than Fire Chief.
that

plaintiff

administratively

The court is holding

exhausted

a

disparate

impact

claim with plaintiff’s October 5, 2012 administrative charge,
not with any prior charge, and that disparate impact claims
regarding the positions of Fire Chief, Deputy Fire Chief, and
Training

Officer

were

made

within

4

the

October

5,

2012

Defendant has not directly raised the question of whether plaintiff can cure
the premature filing of a disparate impact claim.
But, now that plaintiff
has obtained right-to-sue letters relating to her October 5, 2012
administrative charge (see Doc. No. 122, Ex. Q and Ex. R), the court believes
that any jurisdictional issue as to a disparate impact claim properly raised
in that charge can be cured with the filing of the proposed third amended
complaint.
The Tenth Circuit has recognized that while “the existence of
federal jurisdiction ordinarily depends on the facts as they exist when the
complaint is filed . . . [an] exception arises when a district court allows
an amendment by the parties to cure an exhaustion problem.” Mires v. United
States, 466 F.3d 1208, 1212 (10th Cir. 2006); see also, Martin v. Cent. States
Emblems, Inc., 150 Fed.Appx. 852, 855 n. 3 (10th Cir. 10/11/2005) cert.
denied, 546 U.S. 1197 (2006)(failure to obtain right-to-sue letter prior to
the commencement of a suit is a curable defect); Roe v. Cheyenne Mountain
Conference
Resort,
Inc.,
124
F.3d
1221,
1228
n.3
(10th
Cir.
1997)(“jurisdictional” prerequisites in an ADA action may be satisfied after
commencement of the action where defendant raises no issue); EEOC v. JBS USA,
LLC, 794 F.Supp.2d 1188, 1204-05 (D.Colo. 2011)(accepting jurisdiction
despite premature filing); Campos v. Las Cruces Nursing Center, 828 F.Supp.2d
1256, 1269-70 (D.N.M. 2011)(same); Griffin v. Lowe’s Home Centers, Inc., 2009
WL 975159 *3 (D.Kan. 4/9/2009)(same).

16

administrative charge.

The court makes no holding as to whether

plaintiff timely exhausted her administrative remedies as to a
disparate

impact

claim

regarding

Training Officer positions.

the

Deputy

Fire

Chief

or

The court also makes no holding

regarding any disparate treatment claims plaintiff makes.
V.

Conclusion
Defendant’s motion for judgment upon the pleadings (Doc.

No.

85)

is

denied

consistent

with

this

order.

Plaintiff’s

motion to amend (Doc. No. 122) is granted consistent with this
order.

The court notes that a final pretrial order is in the

stages of preparation.

The court would encourage the parties to

focus and clarify their factual and legal claims as much as
possible in that document.
IT IS SO ORDERED.
Dated this 25th day of April, 2013, at Topeka, Kansas.
s/Julie A. Robinson
United States District Judge

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