Dozier v. Bd. of Comm'rs of Franklin Cnty.
Decision Date | 02 July 2021 |
Docket Number | Case No. 20-cv-2576-JWL-KGG |
Parties | LEAH DOZIER Plaintiff, v. THE BOARD OF COMMISSIONERS OF FRANKLIN COUNTY, KANSAS and CLINT LEAHEW Defendants. |
Court | U.S. District Court — District of Kansas |
This case is before the Court on Plaintiff's motion for leave to file a Second Amended Complaint to add a claim of retaliatory discharge. (Doc. 21.) Having reviewed the filings of the parties, the motion is GRANTED.
Plaintiff alleges that Defendants Board of Commissioners of Franklin County, Kansas ("Board of Commissioners" or "Franklin County") and Clint Leahew terminated her employment after she reported being sexually assaulted by a co-worker and insisting that law enforcement be involved. (Doc. 21, at 2.) She brings the present motion seeking to amend her complaint to add a claim under Kansas law for retaliatory discharge as an alternative theory of liability. (Id.)
Plaintiff asserts that Kansas common law recognizes a claim for retaliatory discharge for whistleblowing and a claim of retaliatory discharge for employees who report potential workers compensation injuries. (Id.) She continues that amending her complaint to add a claim under Kansas law would not be futile because "[t]he court should freely give leave [to amend] when justice so requires." (Id., at 1) (citing Fed.R.Civ.P. 15(a)(1)(2)).
Defendant responds that retaliatory discharge is only available where there is no adequate alternative remedy. (Doc. 23, at 3 (citing Flenker v. Willamette Indus., Inc., 266 Kan. 198, 200 (1998)).) Defendant maintains that courts in this District have rejected allowing a plaintiff to plead a cause of action for retaliatory discharge when the plaintiff had an adequate remedy under Title VII and the Kansas Act Against Discrimination ("KAAD"). (Id. (citing Braun v. Dillon Companies, Inc., No. Civ. A. No. 94-2079-EEO, 1995 WL 261142 (1995)).) Because Plaintiff has a legal remedy under her original Title VII retaliation cause of action, Defendant asserts that Plaintiff is precluded from any remedy available under a cause of action for retaliatory discharge under Kansas common law. (Id., at 5.)
(Id., at 6.) "The notice requirements in K.S.A. 2010 Supp. 12-105b(d) are mandatory and a condition precedent to bringing a tort claim against a municipality." Garcia v. Anderson, 46 Kan. App. 2d 1094, 1097-98, 268 P.3d 1248, 1251 (2012).
On April 14, 2021, Plaintiff presented her claim to Defendants and proposed a settlement offer to resolve the claim of retaliatory discharge. (Doc. 23, at 7.) Defendant made a counteroffer to settle Plaintiff's claim, thus rejecting Plaintiff's settlement offer. (Id.) Plaintiff argues that Defendant's counteroffer constitutes a denial pursuant to KTCA. (Doc. 27, at 8.) Defendant responds that Plaintiff has failed to cite legal authority in support of her position that merely responding to a settlement offer suffices as a denial of a 12-105b claim. (Doc. 23, at 7.)
Motions to amend pleadings are governed by Fed.R.Civ.P. 15(a), which provides, in pertinent part, that "[a] party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(1)(B). Absent any finding of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment, leave to amend should be freely given. See Foman v. Davis, 371, U.S. 178, 182 (1962); see also Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir. 1993) (quoting Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993)).
A court is justified in denying a motion to amend as futile if the proposed amendment could not withstand a motion to dismiss or otherwise fails to state a claim. Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992); see 6 Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE § 1487 at 642 (1990). Defendants argue that Plaintiff's two proposed causes of action are futile. Thus, the Court must determine whether they could withstand a motion to dismiss.
In light of two recent Supreme Court cases, the Tenth Circuit has restated the standard for ruling on motions to dismiss under Fed. R. Civ. P. 12(b)(6), and now looks at what is described as a "plausibility" standard:
Phillips v. Bell, No. 08-1042, 2010 WL 517629, * 3, 4 (10th Cir., 2010). The burden is on Defendant to establish the futility of Plaintiff's proposed amendment. Pekareck v. Sunbeam Products., No. 06-1026-WEB, 2006 WL 1313382, at *3 (D. Kan. May 12, 2006).
As stated above, Defendant argues that the proposed amendment is futile because (1) Plaintiff already has an adequate available remedy and (2) even if Plaintiff's amendment is not futile, Plaintiff's new cause of action would lack jurisdiction. (See generally Doc. 23.) The Court will address both issues in turn.
Plaintiff seeks to add a cause of action for retaliatory discharge as an alternative theory of liability against Defendants. (Doc. 21, at 2.) She alleges that she was protected from being fired in retaliation for making a report on a co-worker who violated the rules, pursuant to Kan. Stat. Ann. § 60-3101(a)-(b). (Id.)
Defendant argues that allowing Plaintiff to amend her complaint would be futile because Plaintiff already has an adequate remedy under Title VII and the Kansas Act Against Discrimination. (Doc. 23, at 3.) Defendant contends that the Tenth Circuit has held that availability of remedies precludes a cause of action for retaliatory discharge, so long as a Title VII or KAAD remedy is available for the plaintiff. (Id., at 4 (citing Polson v. Davis, 895 F.2d 705, 709-10 (10th Cir. 1990).)
Plaintiff replies that Defendant's reliance on the Tenth Circuit's decision in Polson v. Davis should not be considered by this Court for two reasons. (Doc. 27, at 2.) First, Plaintiff argues that the Court was interpreting how the Kansas Supreme Court would decide the issue at the time, as it had not been decided. (Id.) Second, Plaintiff argues that...
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