Ditch v. Bd. of County Com'rs of County of Shawnee, Civ. A. No. 86-4212-S.

Citation650 F. Supp. 1245
Decision Date02 November 1986
Docket NumberCiv. A. No. 86-4212-S.
PartiesPeggy DITCH, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS Of the COUNTY OF SHAWNEE, KANSAS, et al., Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas

Cathleen M. Reeder, Bryan, Lykins, Hejtmanek, Hulsey & Wulz, P.A., Topeka, Kan., for plaintiff.

Douglas F. Martin, Shawnee County Counselor, Topeka, Kan., for defendants.


SAFFELS, District Judge.

This matter is before the court on defendants' motion for summary judgment. Plaintiff brought this employment discrimination case based on defendant Board of County Commissioners' abolition of the position of Secretary with the Shawnee County Civil Service Board, a job held by plaintiff until 1985. Defendants base their motion on absolute immunity and on the alleged failure by plaintiff to meet the jurisdictional prerequisites of her claims.

A moving party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). An issue of fact is "material" only when the dispute is over facts that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., ___ U.S. ___, ___ - ___, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986). The court must also consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). The language of Rule 56(a) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, ___ U.S. ___, ___ - ___, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986).

The facts as gleaned from the briefs and affidavits of the parties and viewed in a light most favorable to plaintiff are as follows. Plaintiff began her employment with the Shawnee County Civil Service Board in 1983. Her classification was Secretary I, which was later re-classified as Secretary II. In 1984, plaintiff, a Democrat, ran for Clerk of Shawnee County against the incumbent, Patsy McDonald, a Republican. Plaintiff lost the election. Plaintiff asserts that in the 1984 election the political majority of defendant Board of County Commissioners changed from Democratic to Republican. Plaintiff continued in her job as Secretary II and received good performance ratings.

On April 9, 1985, the defendant Board of County Commissioners voted, by resolution, to abolish the positions of E.E.O. Director and Secretary II with the Shawnee County Civil Service Board. In a separate resolution on the same day, this defendant voted to create the position of E.E.O./Civil Service Specialist to perform the combined duties of the two abolished positions. These resolutions were ostensibly based on budgetary conditions. Defendants Kingman and Hanna were sitting on the defendant Board of Shawnee County Commissioners at the time of these resolutions, and they voted in favor of the resolutions. Plaintiff applied for the new combined position, but it was filled by the former E.E.O. Director. Plaintiff later applied for several other positions with Shawnee County, but was denied employment. Plaintiff claims that defendants Kingman, Hanna, Wells, Hill and Ensley prevented her from obtaining further employment with the County.

On September 3, 1985, plaintiff filed a claim for age discrimination with the Kansas Commission on Civil Rights against Shawnee County and other individuals. Plaintiff is presently 57 years old. Although there is some indication from the record that the plaintiff attempted to have a claim filed with the Equal Employment Opportunity Commission (E.E.O.C.), the court could find no definitive proof record of such a filing. Her complaint in the present lawsuit was filed on July 3, 1986.

In her complaint, plaintiff stated claims under the First Amendment to the United States Constitution (brought pursuant to 42 U.S.C. §§ 1983 and 1985), the Age Discrimination in Employment Act (ADEA) (29 U.S.C. §§ 621-634), and the Kansas Age Discrimination in Employment Act (KADEA) (K.S.A. 44-1111 to -1119). Her claims against the individual defendants are based on decisions arising from their respective offices: Kingman and Hanna (Shawnee County Commissioners), Charles Wells (Director of Human Resources of Shawnee County), Wayne Hill (Superintendent of Maintenance for Shawnee County), and Theodore Ensley (head of Department of Parks and Recreation for Shawnee County). The latter two defendants were brought in based on their departments' refusal to hire plaintiff after she was terminated by the Civil Service Board.


First, defendants Hanna and Kingman assert absolute immunity as to the claims based on the Civil Rights statutes, 42 U.S.C. §§ 1983, 1985, and the constitutional claims. Without tracing the entire history of this area of law, it is relevant to note that in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979), the Supreme Court extended the doctrine of absolute immunity to regional legislators, a protection previously enjoyed only by federal and state legislators. The Court held that to the extent that the individual members of the regional planning agency were acting in a legislative capacity, they were entitled to absolute immunity from federal damages liability. The Court expressly avoided deciding "whether individuals performing legislative functions at the purely local level, as opposed to the regional level, should be afforded absolute immunity from federal damages claims." Id. at 404 n. 26, 99 S.Ct. at 1179 n. 26. The Supreme Court has not subsequently addressed this issue. The courts of appeals have done so, however, and it appears from both parties' briefs that the overwhelming majority afford absolute immunity to local legislators who act in a legislative capacity. See Aitchison v. Raffiani, 708 F.2d 96, 98 (3d Cir.1983) and cases cited therein. Although the Tenth Circuit has not embraced the issue of immunity for local legislators exercising their legislative function, this court is certain that the Tenth Circuit Court would hold that legislative functions require absolute immunity, see Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982), and that the rationale of these Supreme Court cases extends to local, regional, state and federal legislators.

The issue of immunity thus depends on the function that was performed by these two defendants. If it was legislative, they are entitled to absolute protection in their personal capacity. If administrative, then the test for qualified immunity applies. The court has been unable to find a Tenth Circuit decision directly addressing this issue.*

A recent Third Circuit decision sheds light on the question of legislative versus administrative conduct. In Abraham v. Pekarski, 728 F.2d 167 (3d Cir.), cert. denied, 467 U.S. 1242, 104 S.Ct. 3513, 82 L.Ed.2d 822 (1984), the court made several relevant observations. First, the court found that "the fact that the action complained of resulted from a vote of the members of the governing body is not dispositive, for in the exercise of non-legislative powers all corporate bodies require a vote of their governing bodies." 728 F.2d at 174. Second, the court also indicated that the issue of whether a governing body's actions are legislative, administrative, or managerial is a question of state law. In the Abraham case, the plaintiff had served as Director of Roads and Public Property. The township board of commissioners discharged him without a hearing and the plaintiff sued for damages. The court found that under Pennsylvania law, the decision to hire or fire employees was a managerial rather than legislative function. In arriving at this conclusion, the court relied both on the township's failure to act by adoption of an ordinance (under state law the township's legislative powers had to be exercised through adoption of ordinances), and on an ordinance that described the hiring and firing of township employees as a non-legislative function. Id. at 175.

It should be noted, however, that Judge Sloviter's concurring opinion in Abraham recognized that the majority's findings on the issues of absolute immunity were obiter dictum, since that issue was not raised in the district court. Moreover, Judge Sloviter cast doubt on the majority's assertion that the decision to fire the plaintiff was, as a matter of law, managerial. Id. at 175-76 (Sloviter, J., dissenting).

In an earlier decision, the Third Circuit had dealt directly with a situation in which a city council abolished the position of assistant building inspector, alleging aims of efficiency and economy. In Aitchison v. Raffiani, 708 F.2d 96 (3d Cir.1983), the court held that the members of the council were absolutely immune from damage suits under 42 U.S.C. § 1983 when acting in a legislative capacity. Id. at 99. Because the court in fact found absolute immunity available, the inescapable conclusion is that the court believed the elimination of a job title is a legislative act, although the court never expressly so stated. The combination of these two Third Circuit decisions...

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