Weber v. Osage County Board of Commissioners
MEMORANDUM AND ORDER granting 7 Motion to Dismiss for Failure to State a Claim. Signed by U.S. District Senior Judge Sam A. Crow on 3/6/17. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-4186-SAC-KGS
BOARD OF COUNTY COMMISSIONERS
OF OSAGE COUNTY, KANSAS,
MEMORANDUM AND ORDER
This is an action with claims under 42 U.S.C. § 1983 which
has been removed from state district court to this court.
order shall grant defendant’s motion to dismiss for failure to
state a claim pursuant to FED.R.CIV.P. 12(b)(6).
See Doc. No.
Defendant’s motion requires the court to determine whether
the complaint contains “sufficient factual matter, accepted as
true, to ‘state a claim for relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
accepts plaintiff’s well-pled factual allegations as true and
views them in the light most favorable to plaintiff.
States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009), cert.
required to accept legal conclusions alleged in the complaint as
conclusions' and ‘a formulaic recitation of the elements of a
cause of action’ will not suffice” to state a claim.
United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting
Twombly, 550 U.S. at 555).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
Iqbal, 556 U.S. at 678.
“The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”
“Where a complaint pleads facts that are ‘merely consistent
Id. (quoting Twombly, 550 U.S. at 557).
II. ALLEGATIONS IN THE COMPLAINT/PETITION
expiration of her term of office.
Plaintiff began serving as
Osage County Treasurer on August 1, 2015.
that the Chairman of the Osage County Commission stated in an
open session meeting on November 16, 2015 that plaintiff was
incompetent and questioned her abilities to perform the duties
of the job.
He asked plaintiff to resign.
solicited a vote of “no confidence” in plaintiff, which passed
with two voting in favor and one abstaining.
The Chairman of
the Commission later moved in open session to reduce plaintiff’s
salary to the lowest salary paid to a starting clerk in the
below individuals she was supervising.
Plaintiff alleges that
no justification was given for the reduction in salary and no
comparison was made of the responsibilities, obligations and job
working at the lower salary level.
Plaintiff’s legal claims assert that defendant Osage County
interest without the due process of law to which plaintiff is
entitled under the Constitution.
Plaintiff also claims that her
substantive due process rights have been denied by defendant.
III. PLAINTIFF HAS NOT STATED A PLAUSIBLE § 1983 CLAIM.
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” Bruner
plausibly supported by the facts in the complaint.
plaintiff’s liberty interest in her good name, reputation, honor
Plaintiff, however, has not alleged facts
The Tenth Circuit has held that the government infringes
upon a constitutionally protected liberty interest when:
makes a statement impugning the good name, reputation, honor, or
integrity of an employee; 2) the statement is false; 3) the
forecloses other employment opportunities; and 4) the statement
is disclosed publicly.
McDonald v. Wise, 769 F.3d 1202, 1212
(10th Cir. 2014)(interior quotations omitted).
has not alleged facts plausibly showing the first element or the
1992)(referred to hereinafter as “SEK-CAP”).
Reasons for a job
action which merely make an employee less attractive to a future
employer do not injure a liberty interest.
Weathers v. West
constitutional injury is considered a question of law.
In several cases, the Tenth Circuit has determined that
See Fox-Rivera v. Colo. Dept. of Public
federal funds and incompetence); Conaway v. Smith, 853 F.2d 789,
794-95 (10th Cir. 1988)(charges of insubordination and neglect of
duties); Weatherford v. Dole, 763 F.2d 392, 393-94 (10th Cir.
Plaintiff refers to Crowley v. City of Burlingame,
352 F.Supp.2d 1176, 1187 (D.Kan. 2005) aff’d 165 Fed.Appx. 579
(10th Cir. 2006).
There, the district court suggested that when
statements go to the “fundamental capacity” of an employee to
perform his job, the charges may be stigmatizing.
We note that
the district court in Crowley refers to Burk v. Unified Sch.
Dist. No. 329, 646 F.Supp. 1557, 1565 (D.Kan.1986) which cites a
dissenting opinion in Garcia v. Board of Education of Socorro
Consolidated School District, 777 F.2d 1403, 1419 (10th Cir.
(1986), to support this “fundamental capacity” test.
“fundamental capacity” in performing a liberty interest analysis
and we decline to do so here.
The second reason to dismiss plaintiff’s liberty interest
claim is that plaintiff does not allege that she was stigmatized
in connection with the termination of her employment.
violation caused by a defamatory statement, a plaintiff must
show that the defamatory statement occurred in the course of
Coleman v. Utah State Charter School
Board, 2016 WL 7321198 *5 (10th Cir. 2016); Nixon v. City and
County of Denver, 784 F.3d 1364, 1368 (10th Cir. 2015); McDonald,
769 F.3d at 1212; Bjorklund v. Miller, 467 Fed.Appx. 758, 767
(10th Cir. 2012).
Plaintiff does not allege that happened here.
B. Plaintiff has failed to allege a plausible substantive
due process violation.
At the outset, the court notes that the Supreme Court has
responsible decisionmaking in this unchartered area are scarce
Washington v. Glucksberg, 521 U.S. 702, 720
exercised whenever the Court is “asked to break new ground in
this field” because extending constitutional protection to an
asserted right of a liberty interest places the matter “outside
the arena of public debate and legislative action” and threatens
to transform the liberty protected by the Due Process Clause
(interior quotations omitted).
Plaintiff alleges that she has a “protected interest in a
reasonable salary [commensurate] with her position as the County
Plaintiff alleges that this “protected interest” was infringed
in violation of plaintiff’s right to substantive due process.
The legal standard governing substantive due process claims
was discussed in Seegmiller v. LaVerkin City, 528 F.3d 762, 76669 (10th Cir. 2008).
There, the court noted that the Due Process
Clause guarantees more than fair procedure; it also protects
taken in accordance with fair procedures and even in pursuit of
a legitimate government objective.
Id. at 766-67.
two strands of substantive due process doctrine – one which
protects an individual’s fundamental liberty interests and one
which protects against the exercise of governmental power that
shocks the conscience.
Id. at 767.
Plaintiff has not alleged
1. Fundamental liberty interest
“A fundamental right or liberty interest [for substantive
due process purposes] is one that is ‘deeply rooted in this
Nation’s history and tradition’ and ‘implicit in the concept of
Id. (quoting Chavez v. Martinez, 538 U.S.
760, 775 (2003)).
Here, plaintiff has cited no authority and
the court believes there is no authority holding that a county
officer has a fundamental constitutional right to a reasonable
standards derive from state and federal statutes such as the
Fair Labor Standards Act, 29 U.S.C. § 201 et seq., not the
In general, fundamental liberty interests have
education and raising of one’s own children, to marital privacy,
Seegmiller, 528 F.3d at 770-71.
are not found in that list.
Nor does the court believe that
such a right to a reasonable salary is deeply rooted in the
Nation’s history such that neither liberty nor justice would
exist if such a right were sacrificed. See Brown v. Brienen, 722
F.2d 360, 364-65 (7th Cir. 1983)(disputes over overtime do not
implicate the great objects of the Fourteenth Amendment).
public employee with a property interest in continued employment
is protected by substantive due process.
Potts v. Davis County,
551 F.3d 1188, 1193 n.1 (10th Cir. 2009).
But, there is a
strong history of at-will employment in Kansas even for public
See Wiggins v. Housing Authority of Kansas City, 916
P.2d 718, 721-23 (Kan.App. 1996); Riddle v. City of Ottawa, 754
P.2d 465, 468-70 (Kan.App. 1988)(holding that employee suspended
without pay did not raise a due process claim).
suggests that a right to a public job or a certain level of pay
at that job is not deeply rooted in the Nation’s history.1
In addition, the court believes that even the less rigorous
standard for determining a property interest for procedural due
Supreme Court has described “property interests” as entitlements
created and defined by “existing rules or understandings that
stem from an independent source such as state law.”
“State law sources for property interests
The court is not implying that plaintiff could have been terminated without
cause from her position as County Treasurer, only that she did not have a
fundamental liberty interest in the position.
express or implied contracts.”
Kingsford v. Salt Lake City Sch.
expectation is not sufficient to create a property interest.
Plaintiff does not cite a state statute, county ordinance
understanding that plaintiff’s salary could not be reduced to
that of a beginning clerk.
Instead, plaintiff cites case law.
Plaintiff contends that a property interest may be inferred from
the Kansas Supreme Court’s decision in Weber v. Board of County
Commissioners of Marshall County, 221 P.3d 1094 (Kan. 2009).
The court disagrees.
determined that in 2007 a Board of County Commissioners violated
a state statute when it improperly paid a County Treasurer with
state funds for county responsibilities performed by the County
district court should determine on remand what amount of county
funds should be paid to the Treasurer for 2007, in order to know
treasurer had done for the County instead of the State.
court decided that one way to determine this was to conduct a
study to decide how much time the treasurer spent performing
The court did not order that such a
study be performed as a constitutional requirement.2
2. Shock the conscience
To show that an action is conscience shocking, plaintiff
must prove that “a government actor abused his or her authority
or employed it as an instrument of oppression in a manner that
shocks the conscience.”
Koessel v. Sublette County Sheriff’s
Dept., 717 F.3d 736, 750 (10th Cir. 2013)(interior quotations
egregious official conduct.
Even most intentionally inflicted
injuries caused by misuse of government authority will not meet
Among the factors which may be considered are:
official’s authority over the victim; 3) whether the authority
intentionally or recklessly; and 5) whether the injury suffered
The Kansas Supreme Court has held that a county officer, such as a county
treasurer, has no vested interest “in the salary as will prevent the
legislature from diminishing it during his term of office.” Miller v. Board
of Commissioners of Ottawa County, 71 P.2d 875, 878 (Kan. 1937); see also,
Harvey v. Board of County Commissioners of Rush County, 4 P. 153 (Kan. 1884).
The court has no reason to find that plaintiff has a greater interest under
the Constitution in her salary vis-à-vis the defendant Board of County
was so egregious or outrageous that it shocks the conscience.
In Koessel, the plaintiff alleged he was fired from his job
in violation of the Americans with Disabilities Act, even though
The Tenth Circuit held that even if this were true,
sufficient to shock the judicial conscience.
Here, plaintiff kept her job but suffered a significant
wage cut apparently because members of the defendant Board lost
confidence in her job performance.
As in Koessel, the court
plausibly demonstrate that defendant’s action was shocking to
See also Affrunti v. Zwirn, 1996 WL 53625 *1
(2nd Cir. 1996)(salary cuts and health benefits withdrawals to
zoning board members did not shock conscience); Lee v. Kansas
State University, 2013 WL 2476702 *8-9 (D.Kan. 6/7/2013)(alleged
(D.Kan. 2005)(removal of plaintiff from university track team
did not shock the conscience even if decision was made to favor
plaintiff was treated fairly or unfairly.
The issue before the
court is whether the facts alleged in plaintiff’s complaint,
taken as true, state a plausible claim that plaintiff was denied
a liberty interest without procedural due process or was denied
her substantive due process rights.
For the reasons given in
this order, the court finds that plaintiff has failed to state
those constitutional claims.
Therefore, the motion to dismiss
(Doc. No. 7) shall be granted.
IT IS SO ORDERED.
Dated this 6th day of March, 2017, at Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
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