Miller v. Brungardt, Civ. A. No. 94-2518-GTV.

• Decision Date: 03 October 1995
• Docket Number: Civ. A. No. 94-2518-GTV.
• Citation: 904 F. Supp. 1215
• Parties: Jane D. MILLER, Plaintiff, v. Kerry BRUNGARDT, Richard W. Flores, Unified School District No. 469, Lansing, Kansas, Defendants.
• Court: U.S. District Court — District of Kansas

904 F. Supp. 1215

Jane D. MILLER, Plaintiff, v. Kerry BRUNGARDT, Richard W. Flores, Unified School District No. 469, Lansing, Kansas, Defendants.

Civ. A. No. 94-2518-GTV.

United States District Court, D. Kansas.

October 3, 1995.

Nancy A. Roe, Kansas City, KS, for Jane D. Miller.

Jeffrey L. Baxter, Jeffrey E. Goering, Chapman, Waters & Baxter, Leavenworth, KS, Peter K. Curran, Petefish, Curran, Immel & Heeb, Lawrence, KS, Daniel B. Denk, Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for Kerry Brungardt.

Jeffrey L. Baxter, Chapman, Waters & Baxter, Leavenworth, KS, Peter K. Curran, Petefish, Curran, Immel & Heeb, Lawrence, KS, Daniel B. Denk, Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for Richard W. Flores, Unified School District #469, of Lansing Kansas.

MEMORANDUM AND ORDER

VAN BEBBER, Chief Judge.

This case is before the court on the defendants' motion to dismiss plaintiff Jane D. Miller's complaint for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1) (Doc. 10). For the reasons stated below, the defendants' motion is denied in part and granted in part.

I. Background

Unified School District No. 469 (USD 469) employed Miller in August 1992 as a counselor for the Lansing Middle School. On April 4, 1994, the plaintiff received notice of the nonrenewal of her employment contract. During this period, USD 469 employed Kerry Brungardt as Vice-Principal for Lansing Middle School and Richard Flores as Superintendent.

Miller alleges the following facts: Brungardt made sexually inappropriate comments to her, and she lodged a formal grievance with Flores. Flores verbally reprimanded her for lodging a grievance against Brungardt and for Brungardt's counter allegations. Additionally, Lansing Middle School employees began behaving negatively toward her. The plaintiff filed a sexual harassment and retaliatory discharge complaint with the Kansas Human Rights Commission (KHRC) and the Equal Employment Opportunity Commission (EEOC). Miller took three weeks medical leave because of stress-related medical problems. She also requested and was granted a transfer to Lansing High School. Approximately six weeks later, the plaintiff received notice that her contract would not be renewed. She has been unable to secure employment in her profession. The plaintiff filed a second retaliatory discharge complaint with the KHRC and the EEOC.

Miller subsequently filed this suit, alleging sexual harassment and retaliatory discharge in violation of Title VII and the Kansas Act Against Discrimination. The plaintiff also alleges intentional infliction of emotional distress under Kansas common law. Miller seeks punitive damages based upon the defendants' alleged wilful and malicious conduct.

The defendants filed a motion to dismiss, arguing that the court lacks subject matter jurisdiction over Miller' claims. The defendants contend that the court lacks subject matter jurisdiction because Miller failed to plead or to substantially comply with the notice requirements under K.S.A. § 12-105b (1991).

II. Subject Matter Jurisdiction

Generally, the party seeking to invoke federal jurisdiction has the duty to establish that such jurisdiction is proper. Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F.Supp. 279, 280 (D.Kan. 1995) (citing Basso v. Utah Power and Light Co., 495 F.2d 906, 909 (10th Cir.1974)). Because federal courts are courts of limited jurisdiction, there is a presumption against federal jurisdiction. Id. "A court lacking jurisdiction must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Id.; see Fed.R.Civ.P. 12(h)(3). The plaintiff bears the burden of showing why this case should not be dismissed.

In ruling on a motion to dismiss, the court accepts the veracity of all well-pleaded facts in the plaintiff's complaint and views both the facts and all reasonable inferences in the light most favorable to the plaintiff. Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 979, 108 L.Ed.2d 100 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). The pleadings must be construed liberally. Gas-A-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102 (10th Cir.1973); see Fed.R.Civ.P. 8(a), (f). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff ultimately will prevail, but whether the plaintiff shall be allowed to offer evidence to bolster the claims. Scheideman, 895 F.Supp. at 282 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)). "The court may not dismiss a case for failure to state a claim `unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).

Fed.R.Civ.P. 8(a) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The statement need not be detailed factually, but "must give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 85, 78 S.Ct. at 175. While a plaintiff is not required to state precisely each element of the claim, Rule 8(a) nevertheless requires minimal factual allegations on those material elements that must be proven to recover. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

The defendants argue that Miller's complaint should be dismissed for lack of subject matter jurisdiction because the plaintiff did not comply with Kansas notice requirements. K.S.A. § 12-105b(d) provides in pertinent part: "Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action."

It is "well-established that federal civil rights claims are not subject to the Kansas Tort Claims Act." Scheideman, 895 F.Supp. at 281. Thus, as the defendants concede in their reply memorandum, the plaintiff's claims brought under the Title VII are not subject to the notice requirements of § 12-105b(d).

At issue is whether the notice requirements of § 12-105b(d) are applicable to the plaintiff's state law claims against USD 469 as well as against Brungardt and Flores as individuals. The notice requirements in § 12-105b(d) are mandatory and a condition precedent to bringing a tort claim against a municipality. Tucking v. Board of Comm'rs of Jefferson County, Kan., 14 Kan.App.2d 442, 445, 796 P.2d 1055 (1990); see Scheideman, 895 F.Supp. at 281 ("The notice requirement only applies to actions under the Kansas Tort Claims Act against a municipality.").

K.S.A. § 12-105a(a) (1991) defines "municipality" to include "school districts of whatever name or nature." USD 469 falls within the definition of a municipality. On the other hand, because § 12-105b(d) notice requirements apply only to municipalities, written notice was not required for Miller's claims against Brungardt and Flores in their individual capacity. See Scheideman, 895 F.Supp. at 281 (failure to provide written notice under § 12-105b(d) did not preclude plaintiff's claims against defendant sheriff in his individual capacity).

The next question is whether the plaintiff set forth a claim showing the pleader is entitled to relief against USD 469 under federal rules concerning conditions precedent. See Fed.R.Civ.P. 9(c) ("In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity."); see also K.S.A. 60-209(c) (1994) (same).

In the present case, the plaintiff did not plead the occurrence of the condition precedent in her petition. Therefore, the petition did not indicate the pleader was entitled to relief, and as such, the petition was defective. See Tucking, 14 Kan.App.2d at 445, 796 P.2d 1055; James v. City of Wichita, 202 Kan. 222, 225, 447 P.2d 817 (1968).

In response, the plaintiff contends that she provided the defendants with written notice sufficient to comply with the notice requirements...