Ledbetter v. City of Topeka, Kan.

• Decision Date: 16 August 2000
• Docket Number: Civ. A. No. 99-2489-CM.,Civ. A. No. 99-2492-CM.
• Citation: 112 F.Supp.2d 1239
• Parties: Joseph R. LEDBETTER, Plaintiff, v. CITY OF TOPEKA, KANSAS, Joan Wagnon, as Mayor of City of Topeka, Kansas, and Michele Smith, as Personnel Director of City of Topeka, Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

112 F.Supp.2d 1239

Joseph R. LEDBETTER, Plaintiff, v. CITY OF TOPEKA, KANSAS, Joan Wagnon, as Mayor of City of Topeka, Kansas, and Michele Smith, as Personnel Director of City of Topeka, Kansas, Defendants.

Civ. A. No. 99-2489-CM.

Civ. A. No. 99-2492-CM.

United States District Court, D. Kansas.

August 16, 2000.

Joseph R. Ledbetter, Topeka, KS, for plaintiff.

David D. Plinsky, Office of City Atty., Topeka, KS, for defendants.

MEMORANDUM AND ORDER

MURGUIA, District Judge.

Pending before the Court are defendants City of Topeka, Kansas, Joan Wagnon and Michele Smith's motions to dismiss and to drop parties (Doc. 25 in 99-2489) (Doc. 24 in 99-2492). For the reasons set forth below, defendants' motions are granted in part.

I. Background

Plaintiff filed these actions pro se, alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., the Vietnam Era Veterans' Readjustment Assistance Act (VEVRA), 38 U.S.C. § 4211 et seq., and the Kansas Veterans' Preference Act (VPA), Kan. Stat. Ann. § 73-201 et seq.¹ Defendants now move the court to dismiss the Veterans' act claims under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Defendants also move the court to dismiss the Title VII and ADEA² claims raised against defendants Wagnon and Smith for failure to state a claim under Rule 12(b)(6).³ Finally, defendants move the court to dismiss defendants Wagnon and Smith from the action based on improper service of process under Fed.R.Civ.P. 12(b)(5).

Plaintiff has agreed to dismiss defendant Michele Smith from the suit. Therefore, all arguments addressing claims raised against defendant Smith are moot. As set forth in detail below, defendants' motions are granted in part.

II. Motion to Dismiss Standard

The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, see Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir.1998), or when an issue of law is dispositive. See Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, see Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff. See Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir.1998). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984).

The court is mindful that plaintiff in this action appears pro se. A pro se litigant's pleadings are to be construed liberally and are held to a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). The Tenth Circuit has stated, "We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Id. The court may not, however, assume the role of advocate for the pro se litigant. See Van Deelen v. City of Eudora, Ks., 53 F.Supp.2d 1223, 1227 (D.Kan.1999).

III. Discussion

A. Vietnam Era Veterans' Readjustment Assistance Act (VEVRA)

Plaintiff alleges that all defendants denied him employment in violation of "Veterans Preference Law Recognized in Kansas." (Plaintiff's Complaint, at ¶ III). In a separate portion of his complaint, plaintiff references "KSA 73-201 thru KSA 73-204 et al" as providing this court with jurisdiction over his claims. (Plaintiff's Complaint, at ¶ II. B. 3.). Other than this reference to jurisdiction, plaintiff cites no specific statute under which his cause of action arises.

Defendants request the court to dismiss plaintiff's claims, whether they arise under VEVRA, or alternatively under the Kansas Veterans' Preference Act. See 38 U.S.C. §§ 4211 through 4214; Kan. Stat. Ann. §§ 73-201 through 73-203. Defendants contend that there is no private right of action under these statutes. The court agrees with respect to VEVRA. The court disagrees with respect to the Kansas Veterans' Preference Act.

There is no private right of action under VEVRA. See Ledbetter v. Koss Constr., 981 F.Supp. 1394, 1398 (D.Kan. 1997), affirmed in unpublished opinion No. 97-3362, 1998 WL 450847, at *2 (10th Cir. July 24, 1998); Luttrell v. Runyon, 3 F.Supp.2d 1181, 1187 (D.Kan.1998) (citing Antol v. Perry, 82 F.3d 1291, 1296-98 (3d Cir.1996) (no right of action under VEVRA)); Wikberg v. Reich, 21 F.3d 188, 189 (7th Cir.), cert. denied, 513 U.S. 961, 115 S.Ct. 421, 130 L.Ed.2d 336 (1994) (same); Harris v. Adams, 873 F.2d 929, 931 (6th Cir.1989) (same); Barron v. Nightingale Roofing, Inc., 842 F.2d 20, 21-22 (1st Cir. 1988) (no private right of action under VEVRA against federal contractors); Taydus v. Cisneros, 902 F.Supp. 278, 282 (D.Mass.1995) (no right of action under VEVRA); Wilson v. Amtrak National R.R. Corp., 824 F.Supp. 55, 58 (D.Md.1992) (same). VEVRA provides:

If any special disabled veteran or veteran of the Vietnam era believes any contractor of the United States has failed to comply or refuses to comply with the provisions of the contractor's contract relating to the employment of veterans, the veteran may file a complaint with the Secretary of Labor, who shall promptly investigate such complaint and take appropriate action in accordance with the terms of the contract and applicable laws and regulations.

38 U.S.C. § 4212(b). As noted by the Ledbetter court, this language illustrates that Congress intended that persons protected by the statute enforce their rights under it by filing a complaint with the Secretary of Labor. See Ledbetter, 981 F.Supp. at 1398.

B. Kansas Veterans' Preference Act (VPA)

In contrast, the court finds there is a private right of action under the Kansas Veterans' Preference Act, Kan. Stat. Ann. § 73-201 et seq. In Pecenka v. Alquest, the Kansas Court of Appeals determined that an action for damages lies under the Kansas VPA. 6 Kan.App.2d 26, 29, 626 P.2d 802, 805 (1981). Although the Kansas Supreme Court subsequently determined the trial and appellate courts did not have subject matter jurisdiction over the parties in Pecenka, it did not disturb the reasoning of the appellate court regarding the VPA. See Pecenka v. Alquest, 232 Kan. 97, 100-01, 652 P.2d 679, 681-82 (1982).

Subsequent Kansas courts have relied upon the Pecenka appellate court rule regarding the Kansas VPA. See Wright v. Kansas Water Office, 255 Kan. 990, 997, 881 P.2d 567, 572 (1994) (noting Kansas veterans' preference law creates an implied civil right of action for damages); Wagher v. Guy's Foods, Inc., 256 Kan. 300, 305-08, 885 P.2d 1197, 1202-04 (1994) (noting Pecenka court "concluded that the veterans' preference law created a liability which did not exist in the absence of the statute, that an action for damages would lie, and that the action for damages was implied by the statute"). Accordingly, this court finds that if squarely placed before the Kansas courts again, the Kansas courts would defer to the reasoning in Pecenka to find a private cause of action exists under the Kansas VPA. See Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir.1994) ("If a federal court cannot ascertain the law of the forum state, we must in essence sit as a state court and predict how the highest state court would rule.").

Defendant also asserts that plaintiff has made insufficient factual allegations to state a claim under the Kansas VPA. Rule 8(a) of the Federal Rules of Civil Procedure require only that a party's complaint give a defendant notice of the nature of the claims against him. See Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1127 (10th Cir.1998). A "short and plain statement of the claim showing that the pleader is entitled to relief" will ordinarily suffice. Fed.R.Civ.P. 8(a).

The court finds plaintiff's Kansas VPA claim satisfies this standard. Even though plaintiff's complaint is not a picture of clarity, it is sufficient under our liberal notice pleading rules to survive a motion to dismiss. See Porter v. Karavas, 157 F.2d 984, 985-86 (10th Cir.1946) ("Indefiniteness of a complaint is not ground for dismissing the action if it states a claim showing that the plaintiff is entitled to relief."). Plaintiff alleges that the "City of Topeka and other Defendants denied me employment and ability to earn living wages fitting me (sic) experience, abilities and education in this city and as per Veterans Preference Law recognized in Kansas." (Plaintiff's Complaint, ¶ III). Although the defendants must draw certain inferences from plaintiff's allegations in order to determine the exact nature of his claims, the court finds plaintiff's claim meets the requirements of our federal rules regarding specificity in pleadings.

Therefore, defendants' motions are granted as to plaintiff's VEVRA claim. Plaintiff's VEVRA claim is dismissed. Defendants' motions are denied as to plaintiff's Kansas Veterans' Preference Act claim.

C. Title VII and the ADEA

Plaintiff claims defendant City of Topeka, defendant Wagnon, as the Mayor of the City of Topeka, and defendant Smith, as the improperly identified personnel director for the City of Topeka, all discriminated against him in violation of Title VII and the ADEA. Although plaintiff's complaint...