Morris v. State of Kan. Dept. of Revenue

• Decision Date: 15 March 1994
• Docket Number: No. 93-4186-SAC.,93-4186-SAC.
• Citation: 849 F. Supp. 1421
• Parties: Phillip E. MORRIS, et al., Plaintiffs, v. STATE OF KANSAS DEPARTMENT OF REVENUE, Defendant.
• Court: U.S. District Court — District of Kansas

849 F. Supp. 1421

Phillip E. MORRIS, et al., Plaintiffs, v. STATE OF KANSAS DEPARTMENT OF REVENUE, Defendant.

No. 93-4186-SAC.

United States District Court, D. Kansas.

March 15, 1994.

COPYRIGHT MATERIAL OMITTED

Elizabeth M. Phelps, Phelps-Chartered, Topeka, KS, for Phillip E. Morris, Thomas W. Johnson, Ronnie L. Barrett, Larry N. Samford and George Martinez.

Cathleen M. Reeder, Kansas Dept. of Revenue, Topeka, KS, for State of Kan. Dept. of Revenue.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the defendant's motion to dismiss and motion for judgment on the pleadings. (Dk. 7). This is an employment discrimination and civil rights case. The plaintiffs allege the defendant hired them to be law enforcement officers with full police power for the Division of Alcoholic Beverage Control ("ABC"). The defendant, effective July 6, 1992, denied the plaintiffs a promotion/reclassification and stripped them of their police powers for the ABC. After complaining of these adverse job actions, the plaintiffs allege that the defendant's representatives retaliated with harassment and a hostile working environment. The plaintiffs allege they are victims of "unlawful age, gender and/or race-based discrimination and/or retaliation" in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq.; Title VII of the Civil Rights Act of 1964 and as later amended ("Title VII"), 42 U.S.C. § 2000e, et seq.; and the federal civil rights statutes, 42 U.S.C. §§ 1981 and 1983.

The defendant moves to dismiss the plaintiffs' claims under the federal civil rights statutes for failure to state claims upon which relief can be granted. The defendant argues that the plaintiffs allege only substantive violations of Title VII and ADEA and that their exclusive remedy for such violations is the respective acts and not the civil rights statutes. In addition, the defendant argues that it is immune from suit under the federal civil rights statutes.

A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). The court should not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (footnote omitted); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). A court judges the sufficiency of the complaint accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987).¹ The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Hall v. Bellmon, 935 F.2d at 1109. It is not the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir.1989). The court applies the same standards in deciding a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c). Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 528-29 (10th Cir.1992).

Section 1983 does not create substantive rights, Gallegos v. City and County of Denver, 984 F.2d 358, 362 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 2962, 125 L.Ed.2d 662 (1993), but serves only as "`a remedy for violations of rights secured by federal statutory and constitutional law,'" Trujillo v. Grand Junction Regional Center, 928 F.2d 973, 977 (10th Cir.1991) (quoting Tafoya v. Adams, 816 F.2d 555, 558 n. 5 (10th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987)). "A right created solely under Title VII cannot serve as the basis for an independent remedy under Section 1983." Starrett v. Wadley, 876 F.2d 808, 813 (10th Cir.1989) (citations omitted). If the § 1983 claim is brought on a distinct right, "independent" from the Title VII rights, then the state employee alleging discrimination may bring claims under both § 1983 and Title VII. Drake v. City of Fort Collins, 927 F.2d 1156, 1162 (10th Cir.1991). The Tenth Circuit recently discussed this independent claim rule:

Under Drake, the basis for a § 1983 claim is "independent" from Title VII when it rests on substantive rights provisions outside Title VII — that is, when its rests on a constitutional right or a federal statutory right other than those created by Title VII. We emphasize that the basis of a § 1983 claim may be independent of Title VII even if the claims arise from the same factual allegations and even if the conduct alleged in the § 1983 claim also violates Title VII. For example, a § 1983 claim of racial discrimination is independent of a statutory disparate treatment claim arising out of the same set of facts because the § 1983 claim is substantively grounded in the Equal Protection Clause of the Fourteenth Amendment, whereas the disparate treatment claim flows from Title VII. Because the substantive legal standards that govern these claims emanate from different sources, as long as the substantive legal bases for the claims are distinct, our "independence" requirement is satisfied and Title VII does not foreclose an employment discrimination plaintiff's § 1983 claim.

Notari v. Denver Water Dept., 971 F.2d 585, 587 (10th Cir.1992). Consequently, a "plaintiff can recover under Section 1983 for a retaliatory termination based upon First Amendment violations." Starrett v. Wadley, 876 F.2d at 817 n. 12. On the other hand, "a Section 1983 action cannot be based solely upon a violation of the right to be free of retaliatory discharge created by Title VII." Starrett, 876 F.2d at 817 n. 12 (citations omitted); see, e.g., Long v. Laramie County Community College Dist., 840 F.2d 743, 752 (10th Cir.) (§ 1983 does not support a theory of liability for retaliatory conduct taken in response to employee's efforts to obtain redress for sexual harassment), cert. denied, 488 U.S. 825, 109 S.Ct. 73, 102 L.Ed.2d 50 (1988). In addition, an equal protection claim under § 1983 exists when a public employer discriminates against the employee because of the employee's sex, Starrett v. Wadley, 876 F.2d at 814-15, or race, Poolaw v. City of Anadarko, 660 F.2d 459, 462 (10th Cir.1981), overruled on other grounds, Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1445 n. 6 (10th Cir.1988).

The plaintiffs maintain that their § 1983 claims are based on substantive rights independent of Title VII: namely, the equal protection clause of the Fourteenth Amendment and the free speech and association rights of the First Amendment. The defendant in reply refutes that the plaintiffs have alleged constitutional violations or the facts to support such claims. The defendant further points out that it is not a "person" under § 1983. Even if the plaintiffs amended their complaint to allege such violations, the defendant insists such claims are preempted by Title VII and the ADEA.²

The court agrees that the plaintiffs' complaint fails to plead a § 1983 claim in sufficient terms. Section 1983 claims are subject to the liberal federal rules of "notice pleading." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, ___ U.S. ___, ___, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517, 524 (1993).³ The terms of § 1983 demand only two allegations: (1) that a "person" has deprived the plaintiff of a federal right, constitutional or statutory; and (2) that the "person" acted under color of state law when depriving the plaintiff of the federal right. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). If either element is missing, then a § 1983 claim has not been pleaded. Christy v. Randlett, 932 F.2d 502, 504 (6th Cir.1991).

The only defendant named in the complaint is the State of Kansas for the Department of Revenue. A state or state agency is not a "person" for purposes of § 1983.⁴Will v. Michigan Dept. of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989). In addition, the plaintiffs' complaint does not identify the specific constitutional rights on which the § 1983 claims are brought. "Section 1983 provides a remedy for deprivations of specific constitutional rights, not generalized allegations of constitutional deprivations." Trautvetter v. Quick, 916 F.2d 1140, 1148 (7th Cir.1990) (citation omitted). "A failure to identify a right, privilege or immunity secured by the Constitution that was violated merits dismissal of the cause of action for failure to state a claim upon which relief can be granted." Codd v. Brown, 949 F.2d 879, 882 (6th Cir.1991). Finally, assuming the plaintiffs had identified specific rights under the First Amendment and had sued state officials in their individual capacities, the complaint still does not plead sufficient facts. A civil rights complaint "must not be conclusory and must set forth facts which state a claim as a matter of law." Davis v. Hall, 992 F.2d 151, 152 (8th Cir.1993). For a First Amendment retaliation claim, the plaintiff must engage in constitutionally protected speech and the defendant must retaliate against the plaintiff because of that speech. Caldwell v. City of Elwood, Ind., 959 F.2d 670, 672 (7th Cir. 1992). The complaint must contain sufficient facts from which the court can infer that the speech or association was constitutionally protected, i.e. involved a matter of public concern, and that a defendant person retaliated against the plaintiff for this constitutionally protected activity. Caldwell, 959 F.2d at 672; see Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1270 (10th Cir.1989); cf. Lehman v. City of Louisville, 967 F.2d 1474, 1477 (10th Cir.1992).

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