Crumpacker v. Kansas, Dept. of Human

• Decision Date: 10 January 2007
• Docket Number: No. 05-3115.,No. 04-3266.,04-3266.,05-3115.
• Citation: 474 F.3d 747
• Parties: Jill M. CRUMPACKER, Plaintiff-Appellee, v. State of KANSAS, DEPARTMENT OF HUMAN RESOURCES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 747

474 F.3d 747

Jill M. CRUMPACKER, Plaintiff-Appellee, v. State of KANSAS, DEPARTMENT OF HUMAN RESOURCES, Defendant-Appellant.

No. 04-3266.

No. 05-3115.

United States Court of Appeals, Tenth Circuit.

January 10, 2007.

COPYRIGHT MATERIAL OMITTED

Deanne Watts Hay (Matt P. Patterson with her on the briefs), Parker & Hay, LLP, Topeka, KS, for Defendant-Appellant.

Timothy W. Monsees, Monsees Miller Mayer Presley & Amick, PC, Kansas City, MO, (Gene P. Graham, Jr. and Deborah J. Blakely, White Allinder Graham & Buckley, LLC, Independence, MO, with him on the brief) for Plaintiff-Appellee.

Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Title VII does not protect an appointee on the policy making level in state or local government. In this case, Jill Crumpacker, a senior member of the Kansas Department of Human Resources (KDHR), was fired by the Secretary of the Department. Crumpacker sued KDHR under Title VII, alleging that she was fired because of her sex. The district court rejected KDHR's legal argument that Crumpacker was an appointee on the policy making level since she had not been appointed by an elected official, as required by our case law. A jury later ruled in her favor on the discrimination claim. KDHR appeals the district court's denial of its post-trial motions for judgment as a matter of law or for a new trial, as well as the district court's award of fees.

We exercise jurisdiction pursuant to 42 U.S.C. § 1291. Finding that Crumpacker was not appointed by an elected official, we affirm.

I. Factual Background

Bill Graves was elected Governor of Kansas in 1994. For the first two legislative sessions of his administration, the Governor employed Jill Crumpacker as a legislative liaison, working directly for him in the Governor's office. In this position, Crumpacker was appointed by, and was employed at the pleasure of the Governor.

In August 1996, following these two legislative sessions, KDHR Secretary Wayne Franklin asked Crumpacker to submit her resume for the position of Director of Employment and Training within KDHR. As with other cabinet level officers in Kansas, Secretary Franklin held his position by virtue of a gubernatorial appointment.

After an interview, Secretary Franklin selected Crumpacker for the KDHR director's position. Her appointment was subject to Kan. Stat. Ann. § 75-5702 which required the Governor's "consent" for all KDHR division directors whose appointments are not otherwise provided for by a separate statute. More specifically, the statute provided that the KDHR Secretary "may appoint, with the consent of the Governor . . . one or more division directors . . . all of whom shall serve at the pleasure of the secretary of human resources. . . ." Kan. Stat. Ann. § 75-5702 (1976). Crumpacker testified that she never met or interviewed with the Governor regarding the position.

Pursuant to the statute, Franklin sent the Governor a letter requesting approval of Crumpacker's appointment as a KDHR division director, and approval of Crumpacker's salary pursuant to Kan. Stat. Ann. § 2935(b). The Governor's appointments secretary, Jodi Krueger, responded with a letter approving Crumpacker's salary and appointment. Crumpacker's position was unclassified, meaning her employment as a KDHR division director was not subject to Kansas's civil service laws.

In her position at KDHR, Crumpacker had a variety of responsibilities. She led one of the largest divisions in Kansas state government, overseeing at least 280 employees. Crumpacker also served on the Kansas Workforce Investment Partnership (KWIP), an advisory council to the Governor mandated by federal law. She was appointed to her KWIP position by the Governor, receiving a certificate of appointment. Crumpacker's KDHR division was responsible for staffing KWIP, and her appointment there was by virtue of her KDHR position. In weekly updates to Franklin, Crumpacker claimed responsibility for helping to develop KDHR policy, especially with reference to budget planning and federal grant applications.

Differences arose between Franklin and Crumpacker, and eventually Franklin decided he wanted to fire her. According to Franklin, he met with the Governor to discuss the situation. Franklin explained he believed that he could not fire Crumpacker without the Governor's permission. The Governor advised Franklin to "do what [he] felt [he] needed to do." Aplt. App. for 04-3266, Vol. I at 78. Franklin fired Crumpacker in September 1998.

II. Procedural History

Crumpacker filed suit in the District of Kansas under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2000e-17, alleging that Franklin discriminated against her on the basis of her gender. KDHR moved for summary judgment on the basis of 42 U.S.C. § 2000e(f) which provides that certain political appointees and policymaking officials are not considered employees protected by Title VII.

The district court denied the motion, concluding that Crumpacker was not a political appointee as a matter of law. KDHR filed an interlocutory appeal challenging the court's ruling on the motion and on several other issues relating to sovereign immunity, which we affirmed in Crumpacker v. Kan. Dep't of Human Res., 338 F.3d 1163 (10th Cir.2003) (Crumpacker I). We did not, however, reach the question in that appeal concerning the policymaker exception to Title VII.

After remand, the case proceeded to trial and the jury returned a verdict for Crumpacker. KDHR then moved for judgment as a matter of law or for a new trial under Federal Rules of Civil Procedure 50(b) and 59, respectively. The district court denied the motion, holding that to be exempt from Title VII's protections, a person must have been appointed by an elected official. The court found Crumpacker was not eligible for the exemption because she was not so appointed.

III. Title VII Claim

We review the district court's denial of judgment as a matter of law de novo, using the same standard employed by the district court. Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir.1997). We construe the facts of the case in the light most favorable to the jury's verdict. In doing so we bear in mind that "[u]nless the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion, judgment as a matter of law is improper." Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996) (internal citations omitted).

A.

Title VII outlines four classes of persons who are exempt from its protection: (1) elected officials; (2) persons chosen by an elected official to be on such official's personal staff; (3) "appointee[s] on the policy making level"; and (4) persons serving as an immediate adviser to the elected official with respect to the constitutional exercise of the powers of the official's office. 42 U.S.C. § 2000e(f).¹

Crumpacker was not an elected official, nor was her position at KDHR on the personal staff of the Governor. KDHR does not allege that Crumpacker was an immediate adviser to the Governor or any other elected official with respect to the exercise of their powers of office. Thus, we are concerned exclusively with the third exemption: for an "appointee on the policy making level." 42 U.S.C. § 2000(e)(f).

1.

This is not the first time we have addressed the requirements for Title VII's policy maker exemption. In Anderson v. Albuquerque, 690 F.2d 796 (10th Cir.1982), we held that a Title VII plaintiff falls within this exemption only if "appointed by an elected official to a policy making position." Id. at 800 (emphasis added). In that case we concluded, moreover, that an elected official's participation in the selection process alone would not demonstrate compliance with the appointment requirement, especially where the employee did not work with the elected official in the "intimate and sensitive association contemplated by [Congress]." Id. In reaching this result, we pointed to Congress's explanation of the scope of the exemption:

it is the intention of the conferees to exempt elected officials ... and persons appointed by such elected officials as advisors or to policymaking positions at the highest levels of the departments or agencies of State or local governments, such as cabinet officers, and persons with comparable responsibilities at the local level.

Joint Explanatory Statement, 1972 U.S.C.C.A.N. 2137, 2179-80.²

Accordingly, to be exempt from Title VII's protections, Crumpacker must (1) have been appointed by an elected official, and (2) acted as a policy maker. In light of this precedent, KDHR has not argued that an appointment implicating Title VII's policy maker exception could be made by someone other than an elected official.

2.

KDHR makes two arguments based on Kansas law that Crumpacker is a political appointee of the Governor. First it argues that Crumpacker was an unclassified employee, not subject to traditional civil service protections under state law and should therefore be considered to be exempt from Title VII's protections. Second, it argues that the Governor's consent to her appointment by the Secretary satisfies the policy maker exception.

Crumpacker's status as an unclassified employee under state law is a necessary predicate, but not determinative of her exemption from Title VII protection under federal law. Title VII explicitly provides that persons subject to a state's civil service laws may not be excluded from Title VII protections, 42 U.S.C. § 2000e(f) ("The exemption ... shall not include employees subject to the civil service laws....").³ But the converse is not also true—every unclassified employee is not necessarily exempt from the Act.

KDHR's second argument—the Governor's consent required by Kansas statute constitutes an appointment—is also ultimately unpersuasive. Section 75-5702 of the Kansas code requires that a division director be appointed by the Secretary of KDHR "with...