David S. Moore v. University of Kansas et al, No. 2:2014cv02420 - Document 79 (D. Kan. 2015)
Court Description: MEMORANDUM AND ORDER granting in part and denying in part 35 Motion to Dismiss. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 7/28/15. (msb)
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David S. Moore v. University of Kansas et al Doc. 79 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS DAVI D S. MOORE, Ph.D, Plaint iff, Vs. No. 14- 2420- SAC UNI VERSI TY OF KANSAS, et al., Defendant s. MEMORANDUM AND ORDER The case com es before t he court on t he m ot ion t o dism iss filed by t he defendant s Joseph A. Heppert , Universit y of Kansas, Jeffrey S. Vit t er, and St even Warren. ( Dk. 35) . This act ion arises from plaint iff David S. Moore’s suspension, allegat ions of a host ile work environm ent , and event ual t erm inat ion from t he posit ion of Assist ant Scient ist and Direct or of t he Microscopy Analysis and I m aging Laborat ory ( “ MAI Lab” ) at t he Universit y of Kansas ( “ KU” ) . I n his 116- page com plaint t hat cont ains 231 num bered paragraphs, Moore alleges t he violat ions of his right s under t he Am ericans wit h Disabilit ies Act ( “ ADA” ) , 42 U.S.C. § 12,101, et seq. ( Count One) for discrim inat ion based on his disabilit y and ret aliat ion for exercising his disabilit y right s; t he Rehabilit at ion, Com prehensive Services and Developm ent al Disabilit ies Act ( “ Rehabilit at ion Act ” ) , 29 U.S.C. § 701, et seq. ( Count Two) for discrim inat ion based on his disabilit y and ret aliat ion for 1 Dockets.Justia.com exercising his disabilit y right s; Nat ional Defense Aut horizat ion Act , Pilot Program for Enhancem ent of Cont ract or Prot ect ion from Reprisal for Disclosure of Cert ain I nform at ion ( “ NDAA” ) , 41 U.S.C. § 4712, et seq., ( Count Three) for being a whist leblower in disclosing m ism anagem ent , wast e, abuses and non- com pliance wit h federal grant s and cont ract s; False Claim s Act , ( “ FCA” ) , 31 U.S.C. § 3730, et seq., ( Count Four) for being a whist leblower in invest igat ing and request ing inform at ion reasonably believed t o evidence fraud and m ism anagem ent of federal grant s and cont ract s; Federal Civil Right s Act , 42 U.S.C. § 1983 ( Count Five) for sust aining adverse em ploym ent act ion in ret aliat ion for speaking on m at t ers of public concern prot ect ed by t he First Am endm ent , nam ely t he violat ion of federal laws governing t he federal funds; Federal Civil Right s Act , 42 U.S.C. § 1983, ( Count Six) for sust aining adverse em ploym ent in violat ion of his const it ut ional right t o subst ant ive due process; and t he whist leblower except ion for ret aliat ory discharge t o t he Kansas com m on- law policy on em ploym ent at will ( Count Seven) for being a whist leblower and disclosing what he reasonably believed were violat ions of law and KU policy. The individual defendant s, Heppert , Vit t er and Warren, are sued in t heir official capacit ies for prospect ive inj unct ive relief in four count s: ADA ( Count One) , NDAA ( Count Three) , FCA ( Count Four) , and Kansas com m on law ret aliat ory discharge act ion ( Count Seven) . They are sued in t heir individual capacit ies for m oney dam ages and inj unct ive relief on t he t wo § 2 1983 count s ( Count s Five and Six) . The plaint iff nam es KU as a defendant only in Count Two- - t he Rehabilit at ion Act and seeks reinst at em ent , back pay and ot her equit able relief. BRI EF SUM M ARY OF FACTUAL ALLEGATI ON S KU em ployed Moore as an assist ant scient ist and direct or of t he MAI Lab on it s Lawrence Cam pus from Decem ber 1, 2004, unt il he was discharged on Oct ober 18, 2013. Moore alleges his act ion arises from KU suspending him for four weeks wit hout pay in Sept em ber of 2013 for “ disrupt ive” and “ unprofessional” behavior and t hen t erm inat ing him t he next m ont h when his appeal of t he suspension was st ill pending. Bot h as a st udent at KU and an em ployee in different depart m ent s, Moore inform ed his advisors and superiors t hat he had been diagnosed wit h At t ent ion Deficit Disorder/ At t ent ion Deficit and Hyperact ivit y Disorder ( “ ADD/ ADHD) . And upon his em ploym ent at t he MAI Lab, Moore t old his superiors/ supervisors at t he MAI Lab a ered is so egregious or out rageous t hat it shocks t he conscience. William s, 519 F.3d at 1224 ( discussing excessive force claim ) . Koessel v. Sublet t e Count y Sheriff's Dept ., 717 F.3d at 750. The Tent h Circuit also not ed “ t he em ploym ent inj ury suffered—t he loss of a j ob—was not so egregious as t o shock t he j udicial conscience.” I d. “ To sat isfy t his st andard, a plaint iff m ust do m ore t han show t hat t he governm ent act or int ent ionally or recklessly caused inj ury t o t he plaint iff by abusing or m isusing governm ent power.” Tonkovich v. Kan. Bd. of Regent s, 159 F.3d 504, 528 ( 10t h Cir. 1998) . The issue whet her specific conduct “ shocks t he conscience” is a quest ion of law for t he Court . See Perez v. Unified Gov't of Wyandot t e Cnt y./ Kansas Cit y, Kan., 432 F.3d 1163, 1168 n. 4 ( 10t h Cir. 2005) , cert . denied, 548 U.S. ( 2006) . “ The doct rine of qualified im m unit y shields governm ent officials from liabilit y, . . ., when ‘t heir conduct does not violat e clearly est ablished st at ut ory or const it ut ional right s of which a reasonable person would have known.’” McDonald, 769 F.3d at 1215 ( quot ing Harlow v. Fit zgerald, 457 U.S. 800, 818 ( 1982) ) . “ I n resolving a m ot ion t o dism iss based on qualified im m unit y, a court m ust consider whet her t he fact s t hat a plaint iff has alleged . . . m ake out a violat ion of a const it ut ional right ,” and “ whet her t he right at issue was clearly est ablished at t he t im e of defendant 's alleged 34 m isconduct .” Leveringt on v. Cit y of Colorado Springs, 643 F.3d 719, 732 ( 10t h Cir. 2011) ( quot ing Pearson v. Callahan, 555 U.S. 223, 232 ( 2009) ) . “ For a right t o be clearly est ablished, ‘[ t ] he cont ours of t he right m ust be sufficient ly clear t hat a reasonable official would underst and t hat what he is doing violat es t hat right .’” Bram m er–Hoelt er v. Twin Peaks Chart er Academ y, 602 F.3d 1175, 1184 ( 10t h Cir. 2010) ( quot ing Anderson v. Creight on, 483 U.S. 635, 640 ( 1987) ) . “ Clearly t his st andard does not require a precise fact ual analogy t o pre- exist ing law; however, t he plaint iff m ust dem onst rat e t hat t he unlawfulness of t he conduct was apparent in light of pre- exist ing law.” I d. ( int ernal quot at ion m arks and cit at ion om it t ed) . Preexist ing law is “ eit her a Suprem e Court or Tent h Circuit decision on point , or t he clearly est ablished weight of aut horit y from ot her court s. I d. The plaint iff has not com e forward wit h any aut horit y am ount ing t o “ pre- exist ing law” t hat has recognized em ploym ent act ions and consequences sim ilar t o t his case as being “ so egregious t hat t hey ‘shock t he conscience.’” Klaassen, 2015 WL at 437747 at * 26. Having failed t o est ablish t he cont ours of a subst ant ive due process right under t he alleged circum st ances here, t he court dism isses t his claim against t he individual defendant s in t heir individual capacit ies based on qualified im m unit y. St a t e Com m on - la w Re t a lia t or y D isch a r ge —Cou n t Se ve n Sued in t heir official capacit ies for prospect ive inj unct ive relief on t his count , t he defendant s repeat t heir Elevent h Am endm ent argum ent s, seek t o 35 apply t he alt ernat ive rem edies doct rine t o t he Kansas Whist leblower Act , K.S.A. 75- 2973, and ask t he court t o follow t he Kansas case law precluding a supervisor’s liabilit y for t he ret aliat ory discharge t ort . The court ’s Elevent h Am endm ent rulings on count one are t he court ’s rulings on t his count as well. While discussing t he alt ernat ive rem edies doct rine at lengt h, t he plaint iff does address or cont est t he defendant s’ last issue of supervisory liabilit y. The recent Klaassen decision sum m arizes t he Kansas Suprem e Court ’s holding in Rebarchek v. Farm ers Coop. Elevat or, 272 Kan. 546, 35 P.3d 892 ( 2001) ( “ only t he em ployer is liable for ret aliat ory discharge” ) , and t he different const ruct ions of t hat holding by t he federal court s in t his dist rict , Ruisinger v. HNB Corp., 2012 WL 3758656 ( D. Kan. Aug 29, 2012) ( Rebarchek holding applies “ only when t he firing supervisor lacks a role in t he corporat ion beyond his m anagerial posit ion” ) , and Ragsdale v. Am st ed Rail Co., I nc., 2013 WL 6729788 ( D. Kan. Dec. 19, 2013) ( t he “ st at us of t he supervisor is ‘irrelevant ’” in applying Rebarchek) . 2015 WL 437747 at * 29. This court concurs wit h t he reasoning in Klaassen and “ follows Ragsdale and decides t hat t he Kansas Suprem e Court would recognize a com m on law cause of act ion for ret aliat ory discharge against only an em ployer.” I d. at 30. Because t he plaint iff has not alleged t hat t he t hree individual m ovant s were his em ployer, t he court concludes t he plaint iff has failed t o st at e a claim for ret aliat ory discharge against t he m ovant s. 36 I T I S THEREFORE ORDERED t hat t he m ot ion t o dism iss ( Dk. 35) filed by t he defendant s Joseph A. Heppert , Universit y of Kansas, Jeffrey S. Vit t er, and St even Warren is grant ed in part and denied in part , as hereby sum m arized, Count One: t he defendant s Warren and Heppert are dism issed from a claim of relief for reinst at em ent , and t he m ot ion is ot herwise denied; Count Two: t he claim for relief does not include com pensat ory or punit ive dam ages; Count Three: t he claim for relief against t he m ovant s is lim it ed t o non- m onet ary, prospect ive inj unct ive relief, and t he plaint iff will have 20 days from t his order t o file eit her an am ended com plaint t hat alleges exhaust ion of adm inist rat ive rem edies or a report on t he st at us of t he pending adm inist rat ive proceedings; Count Four: t he m ot ion is denied; Count Five: t he m ot ion is denied on t he First Am endm ent claim ; Count s Five/ Six: on t he subst ant ive due process claim for deprivat ion of libert y, t he m ot ion is grant ed but subj ect t o t he plaint iff filing a separat e m ot ion for leave t o am end, and on t he subst ant ive due process sim plicit er claim , t he m ot ion is grant ed; Count Seven: t he m ot ion is grant ed. Dat ed t his 28 t h day of July of 2015, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 37
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