Schloesser v. Kansas Dept. of Health and Env., Civ. A. No. 90-2029-V.
| Decision Date | 04 June 1991 |
| Docket Number | Civ. A. No. 90-2029-V. |
| Parties | Dr. Patricia SCHLOESSER, Plaintiff, v. The KANSAS DEPARTMENT OF HEALTH AND ENVIRONMENT and Stanley C. Grant, Defendants. |
| Court | U.S. District Court — District of Kansas |
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J. Mark Baird, Watson, Ess, Marshall & Enggas, Kansas City, Mo., Thomas E. Ruzicka, Watson, Ess, Marshall & Enggas, Olathe, Kan., for plaintiff.
Carl A. Gallagher, Attorney General's Office, David M. Traster, David D. Plinsky, Topeka, Kan., for defendants.
This case comes before the court on defendants' Motion for Partial Summary Judgment (Doc. 63) and defendants' Motion for Summary Judgment (Doc. 92). Fed.R. Civ.P. 56(b). Both motions are now at issue. Taken as one, the motions are granted in part and denied in part.
Plaintiff, Dr. Patricia Schloesser, brought this employment discrimination action, claiming that, by demoting her and then terminating her employment, defendants, the Kansas Department of Health and Environment (KDHE) and Stanley C. Grant, had unlawfully discriminated against her on the basis of her sex, age, and handicap (cancer), and that they had unlawfully retaliated against her, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq. Defendants now contend, in the instant motions, that they are entitled to summary judgment on all of plaintiff's claims and that this case should be dismissed accordingly.
A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be discharged by "showing," that is, pointing out to the district court, that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion for summary judgment, "a party opposing ... may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id.
The pertinent uncontroverted facts, as established by the parties in accordance with D.Kan. Rule 206(c), appear as follows:
Plaintiff is a sixty-seven-year-old woman. She was employed by the KDHE in a number of capacities from 1952 to 1971 and from 1974 to 1989. The KDHE is a cabinet-level agency of the State of Kansas. It is administered by a Secretary who is appointed by, and serves at the pleasure of, the Governor of Kansas. At the relevant times involved herein, defendant Grant was Secretary of the KDHE.
On June 18, 1987, Governor Mike Hayden appointed defendant Grant as Secretary of the KDHE. Governor Hayden specifically charged defendant Grant with "turning the agency around" in its management and direction. At the time that defendant Grant was appointed, the KDHE was organized into two major divisions: The Division of Health and the Division of the Environment. Each division was composed of a number of different bureaus.
On August 18, 1987, after making various inquiries and assessing the KDHE's needs, Secretary Grant appointed plaintiff as Director of the Division of Health and James Power, a sixty-year-old man, as Director of the Division of the Environment. Defendant Grant expected the directors to take charge of their respective divisions, to exhibit skill in handling the various bureaus, and to provide support for each bureau. Defendant Grant also expected the directors to follow the agency's agenda and be "team players" for the KDHE. Plaintiff was aware of defendant Grant's expectations when she accepted the appointment.
Initially, the working relationship between plaintiff and defendant Grant was cordial and positive. However, after a period of time, defendant Grant became dissatisfied with plaintiff. Eventually, defendant Grant decided to replace plaintiff as Director of the Division of Health. On April 29, 1988, defendant Grant informed plaintiff that she was being removed from her position because she had exercised her own agenda and was not a "team player" for the KDHE. Defendant Grant proposed a follow-up meeting to discuss her removal.
On May 2, 1988, plaintiff and her attorney met with defendant Grant to discuss the particularities of her removal. During the meeting, plaintiff's attorney warned defendant Grant that it was illegal to "fire" a person on account of their age or sex. Defendant Grant assured plaintiff and her attorney that plaintiff's age and sex were not the reasons for his decision to replace her. He also informed plaintiff that he was not discharging her, but was merely demoting her to fill a newly created position, that of liaison officer between the KDHE and the federal government. Based on defendant Grant's representations, plaintiff accepted the demotion and the new position. Plaintiff did not file charges of discrimination against defendants at that time.
In July, 1988, plaintiff was diagnosed as having breast cancer. The KDHE allowed plaintiff to adjust her schedule to accommodate her treatments. It is not disputed that, during her illness, plaintiff continued to work full-time and maintained her previous levels of performance.
On October 11, 1988, Governor Hayden announced the appointment of Scott Morgan as Director of the Office of Federal Affairs (OFA). It was the responsibility of the OFA to act as liaison between all Kansas state agencies and the federal government. Morgan issued a directive requesting all state agencies, including the KDHE, to coordinate their contacts with the federal government through the OFA.
In early 1989, defendant Grant decided to eliminate plaintiff's KDHE liaison position. On June 17, 1989, defendant Grant informed plaintiff that he was eliminating her position because it duplicated the efforts of the OFA. Defendant Grant did not offer plaintiff another position within the KDHE. Consequently, plaintiff's employment with the KDHE ended. On June 29, 1989, plaintiff filed charges of discrimination against the KDHE and defendant Grant with the Equal Employment Opportunity Commission (EEOC). On January 25, 1990, within ninety days of receiving notice of the right to sue, plaintiff filed the present action.
In the instant motions, defendants contend that they are entitled to summary judgment in this case on a number of grounds. For ease of discussion, we have divided defendants' contentions into three sections, as outlined below. First, defendant Grant contends that, because he has only been sued in his official capacity, the Eleventh Amendment bars plaintiff from suing him under both 42 U.S.C. § 1983 and the KAAD. He also argues that he is not amenable to suit under the ADEA. Second, the KDHE contends that the Eleventh Amendment prohibits plaintiff from bringing suit against it under the ADEA. Third, defendants contend that they are entitled to summary judgment regarding plaintiff's specific Title VII and ADEA claims, which we may enumerate as: (1) the May 2, 1988, demotion, (2) the June 17, 1989, termination, and (3) plaintiff's retaliation claims. We shall discuss each section separately.
Plaintiff claims that by demoting her and terminating her employment defendant Grant deprived her of her constitutional rights to due process and equal protection of the laws in violation of 42 U.S.C. § 1983. Defendant Grant contends that the court should dismiss plaintiff's section 1983 claims because the pretrial order discloses that he has only been sued in his official capacity. On that ground, he contends that plaintiff's section 1983 claims are barred by the Eleventh Amendment. We agree with defendant Grant's contention.
The pretrial order of a case controls the course of the case and measures its dimensions. American Home Assur. Co. v. Cessna Aircraft Co., 551 F.2d 804, 806 (10th Cir.1977); Fed.R.Civ.P. 16(e); D.Kan. Rule 213(c). Once a pretrial order has been entered in a case, it supersedes the pleadings and becomes the governing pattern of the suit. Hernandez v. Alexander, 671 F.2d 402, 407 (10th Cir.1982). Claims contained only in the pleadings, but not in the pretrial order, are not properly presented to the court. Id.; Stafos v. Missouri P.R. Co., 367 F.2d 314, 319 (10th Cir.1966).
On January 7, 1991, a pretrial order was entered in this case (Doc. 82). Construing the pretrial order liberally we are unable to conclude that plaintiff has alleged that defendant Grant performed any of the complained of acts in his individual capacity. Therefore, we are constrained to conclude that defendant Grant has only been sued in his official capacity as Secretary of the KDHE. Because a state official acting in his official capacity is not amenable to suit under section 1983, Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989), defendant Grant is entitled to summary judgment on plaintiff's section 1983 claims.
In this case, plaintiff also asserts a pendent state law claim against defendant Grant, alleging that...
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