Weber v. Osage County Board of Commissioners

Filing 13

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

SHARON WEBER,
Plaintiff,
vs.

Case No. 16-4186-SAC-KGS

BOARD OF COUNTY COMMISSIONERS
OF OSAGE COUNTY, KANSAS,
Defendant.

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.

This

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.

7.
I. STANDARDS
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)).

The court

accepts plaintiff’s well-pled factual allegations as true and
views them in the light most favorable to plaintiff.

United

States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009), cert.
denied,

558

U.S.

1148

(2010).
1

The

court,

however,

is

not

required to accept legal conclusions alleged in the complaint as
true.

Iqbal,

556

U.S.

at

678.

“Thus,

mere

‘labels

and

conclusions' and ‘a formulaic recitation of the elements of a
cause of action’ will not suffice” to state a claim.

Khalik v.

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
inference

that

alleged.”

the

defendant

is

liable

Iqbal, 556 U.S. at 678.

for

the

misconduct

“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.”
Id.

“Where a complaint pleads facts that are ‘merely consistent

with’

a

between

defendant's

liability,

possibility

relief.”’”

and

it

‘stops

plausibility

short

of

of

the

“entitlement

line
to

Id. (quoting Twombly, 550 U.S. at 557).

II. ALLEGATIONS IN THE COMPLAINT/PETITION
Plaintiff
Treasurer

for

alleges
Osage

that
County,

she

replaced

Kansas

expiration of her term of office.

who

the

elected

retired

County

before

the

Plaintiff began serving as

Osage County Treasurer on August 1, 2015.

Plaintiff alleges

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
2

of the job.

He asked plaintiff to resign.

Thereafter, he

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
courthouse.

This

motion

passed

reducing

below individuals she was supervising.

plaintiff’s

salary

Plaintiff alleges that

no justification was given for the reduction in salary and no
comparison was made of the responsibilities, obligations and job
duties

of

plaintiff

versus

the

responsibilities

of

clerks

working at the lower salary level.
Plaintiff’s legal claims assert that defendant Osage County
Board

of

Commissioners

has

deprived

plaintiff

of

a

liberty

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.
A

plaintiff

bringing

a

§

1983

claim

must

“allege

the

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
v.

Baker,

quotation

506
marks

F.3d

1021,

omitted).

1025–26
Here,

(10th

Cir.

plaintiff’s

2007)(internal
claims

plausibly supported by the facts in the complaint.
3

are

not

A.
claim.

Plaintiff

Plaintiff

has

not

claims

alleged

that

the

a

viable

liberty

Board

defendant

interest

violated

plaintiff’s liberty interest in her good name, reputation, honor
and

integrity

incompetent

by
by

and

openly
reducing

capricious manner.
which

would

proclaiming
her

that

salary

in

plaintiff

an

was

arbitrary

and

Plaintiff, however, has not alleged facts

plausibly

demonstrate

a

violation

of

the

Constitution.
The Tenth Circuit has held that the government infringes
upon a constitutionally protected liberty interest when:

1) it

makes a statement impugning the good name, reputation, honor, or
integrity of an employee; 2) the statement is false; 3) the
statement

is

made

during

the

course

of

termination

and

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).

Here, plaintiff

has not alleged facts plausibly showing the first element or the
third element.
The

Tenth

stigmatization

is

Circuit

has

essential

claim.”

Southeast

Secretary

of

Kansas

Agriculture,

held

to

stating

Community
967

that

F.2d

showing

of

[a]

liberty

interest

Action

Program

Inc.

1452,

1992)(referred to hereinafter as “SEK-CAP”).

4

“a

1458

(10th

v.

Cir.

Reasons for a job

action which merely make an employee less attractive to a future
employer do not injure a liberty interest.
Yuma

County

1976).

School

Whether

District,

alleged

530

F.2d

Weathers v. West

1335,

stigmatizing

(10th

1339

statements

Cir.

caused

constitutional injury is considered a question of law.

a

SEK-CAP,

supra.

In several cases, the Tenth Circuit has determined that

claims

of

incompetence

or

neglect

did

not

allege

a

constitutional injury.

See Fox-Rivera v. Colo. Dept. of Public

Health

610

&

Environment,

2015)(statements
protocol);

alleging

SEK-CAP,

Fed.Appx.
negligence

supra

(report

745,
and

746-47
failures

alleging

(10th
to

Cir.

follow

misspending

of

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.
1985)(job

reassignment

casting

shadow

of

incompetence

and

causing embarrassment).
Following
plaintiff
which

has

this

failed

infringes

interest.

line

upon

to
a

of

case

allege

law,
facts

the

court

showing

constitutionally

finds

that

stigmatization

protected

liberty

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.
5

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.
1985)

(McKay,

J.,

dissenting),

cert.

denied,

479

U.S.

(1986), to support this “fundamental capacity” test.
not

found

another

Tenth

Circuit

case

which

uses

814

We have
the

term

“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.
Circuit

has

held

that,

in

order

to

show

a

The Tenth

liberty

interest

violation caused by a defamatory statement, a plaintiff must
show that the defamatory statement occurred in the course of
employment termination.

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
observed

that

it

has

“always

been

6

reluctant

to

expand

the

concept

of

substantive

due

process

because

guideposts

for

responsible decisionmaking in this unchartered area are scarce
and openended.”
(1997)(interior

Washington v. Glucksberg, 521 U.S. 702, 720
quotation

omitted).

The

“utmost

care”

is

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
“into

the

policy

preferences”

of

the

Supreme

Court.

Id.

(interior quotations omitted).
Plaintiff alleges that she has a “protected interest in a
reasonable salary [commensurate] with her position as the County
Treasurer.”

First

Amended

Petition,

Doc.

No.

1-1,

p.

6.

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
against

arbitrary

and

oppressive

government

action

even

when

taken in accordance with fair procedures and even in pursuit of
a legitimate government objective.

Id. at 766-67.

There are

two strands of substantive due process doctrine – one which
7

protects an individual’s fundamental liberty interests and one
which protects against the exercise of governmental power that
shocks the conscience.
facts

which

describe

Id. at 767.
a

plausible

Plaintiff has not alleged
constitutional

claim

under

either strand.
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
ordered liberty.’”

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
salary

commensurate

with

his

or

her

responsibilities.

Wage

standards derive from state and federal statutes such as the
Fair Labor Standards Act, 29 U.S.C. § 201 et seq., not the
Constitution.
been

In general, fundamental liberty interests have

recognized

“to

marry,

to

have

children,

to

direct

the

education and raising of one’s own children, to marital privacy,
to

use

contraception

integrity.”

and

obtain

abortion,

Seegmiller, 528 F.3d at 770-71.

are not found in that list.

and

to

bodily

Wage standards

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
8

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).
Tenth

Circuit

has

stated

that

it

has

not

decided

The

whether

a

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
employees.

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).

This history

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
process

is

not

met

by

the

facts

alleged

by

plaintiff.

The

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.”
Castle

Rock

v.

Gonzales,

quotation omitted).

545

U.S.

748,

756

Town v.

(2005)(interior

“State law sources for property interests

1

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.

9

can

include

statutes,

municipal

express or implied contracts.”
Dist.,

247

F.3d

1123,

1128

charters

or

ordinances,

and

Kingsford v. Salt Lake City Sch.
(10th

Cir.

2001).

A

unilateral

expectation is not sufficient to create a property interest.
Id.
Plaintiff does not cite a state statute, county ordinance
or

an

express

or

implied

contract

which

supports

an

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.
The

Weber

substantive

decision

due

does

process

not

discuss

argument.

a

In

procedural

Weber,

or

the

a

court

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
Treasurer.
compensate
State.

The
the

One

state

County

of

the

law

required

Treasurer
issues

for

discussed

that
work
in

the

state

performed
Weber

was

funds

for

the

how

the

district court should determine on remand what amount of county
funds should be paid to the Treasurer for 2007, in order to know
whether

state

funds

were

being
10

used

to

pay

for

work

the

treasurer had done for the County instead of the State.

The

court decided that one way to determine this was to conduct a
study to decide how much time the treasurer spent performing
county responsibilities.

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
omitted).

“Substantive

due

egregious official conduct.

process

prohibits

only

the

most

Even most intentionally inflicted

injuries caused by misuse of government authority will not meet
this

standard.”

Id.

(interior

quotations

and

citations

omitted).

Among the factors which may be considered are:

the

resulting

harm

from

the

alleged

misconduct;

2)

1)
the

official’s authority over the victim; 3) whether the authority
was

abused;

4)

whether

the

official

acted

negligently,

intentionally or recklessly; and 5) whether the injury suffered
2

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
Commissioners.

11

was so egregious or outrageous that it shocks the conscience.
Id.

In Koessel, the plaintiff alleged he was fired from his job

in violation of the Americans with Disabilities Act, even though
he

had

not

discipline.
it

did

previously

been

the

subject

of

a

complaint

or

The Tenth Circuit held that even if this were true,

not

demonstrate

an

abuse

of

government

authority

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.
does

not

believe

plaintiff

has

As in Koessel, the court

alleged

sufficient

facts

to

plausibly demonstrate that defendant’s action was shocking to
the conscience.

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
arbitrary

dismissal

conscience);

from

Richard

graduate

school

v.

Perkins,

373

did

not

F.Supp.2d

shock
1211,

the
1220

(D.Kan. 2005)(removal of plaintiff from university track team
did not shock the conscience even if decision was made to favor
coach’s son).
IV. CONCLUSION
The

court

is

not

rendering

an

opinion

plaintiff was treated fairly or unfairly.
12

as

to

whether

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

13