Summary
whistleblowing retaliatory discharge claim precluded by 42 U.S.C. § 1983 First Amendment claim
Summary of this case from Getz v. Board of County CommissionersOpinion
Civil Action No. 99-2217-GTV
February 21, 2001
MEMORANDUM AND ORDER
Plaintiff John H. Bunker is a former Captain of the City of Olathe, Kansas Police Department. He filed this action against the City of Olathe, as a public employer; Susan Sherman, in her individual capacity and as former Acting City Manager of the City of Olathe; Philip Major, in his individual capacity and as former Chief of Police of the City of Olathe; and Howard Kannady, in his individual capacity and as former Acting Chief of Police of the City of Olathe. Plaintiff brings claims pursuant to 42 U.S.C. § 1983 alleging unlawful retaliation for exercise of his constitutional right of free speech. Plaintiff also brings claims pursuant to Kansas state law alleging retaliatory discharge and intentional infliction of emotional distress. The case is before the court on Defendants' motion to dismiss Plaintiff's state law claims pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state claims upon which relief can be granted (Doc. 35). For the reasons set forth below, the court grants the motion.
I. Standard for Judgment
Dismissal of a claim under Rule 12(b)(6) is appropriate only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of his theory of recovery that would entitle him to relief, see Conley v. Gibson, 355 U.S. 41, 45-46 (1957), or when an issue of law is dispositive, see Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, see Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), and all reasonable inferences from those facts are viewed in favor of the plaintiff, see Zinermon v. Burch, 494 U.S. 113 (1990). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
II. Factual Background
The facts contained in this background are based solely upon the allegations in Plaintiff's complaint.
Plaintiff was hired by the City of Olathe as a police officer in 1973. Plaintiff became classified as a Captain in 1982. After receiving multiple positive evaluations from his superiors, Plaintiff was assigned to command the Investigations Division of the Police Department.
As Commander of the Investigations Division, Plaintiff served, among other things, as the primary contact person for the Midstates Organized Crime Information Center (the "MOCIC"). The MOCIC is one of six regional projects that form the Regional Information Sharing System, which is supported by a federal grant. The overall objective of the six regional projects is to enhance the ability of local, state, and federal law enforcement agencies to identify, target, and remove criminal conspiracies and activities that cross jurisdictional boundaries. To help accomplish this objective, the MOCIC provides "a computerized criminal intelligence database and intelligence inquiry service . . . and access to a telecommunication system." Plaintiff's Complaint at ¶ 29.
In late 1997, an employee of the MOCIC named Bill Goodrich contacted Plaintiff to inquire about the MOCIC telecommunication system. Mr. Goodrich advised Plaintiff "that his reason for visiting the Olathe Police Department was to relay his superior's concern that the Department had utilized the [telecommunication system] 35-40 times in 1997, but had not submitted any criminal intelligence into the intelligence database during this same time period." Plaintiff's Complaint at ¶ 34. Some investigative work revealed that the Chief of Police, Defendant Major, had made twenty-nine telephone calls using the MOCIC telecommunication system, eleven of which were made to a number listed to his ex-wife. Plaintiff concluded that Defendant Major was likely using the MOCIC telecommunication system for unauthorized personal use.
Plaintiff met with the Acting City Manager of Olathe, Defendant Sherman, to discuss the MOCIC situation. Shortly thereafter, an article appeared in an Olathe newspaper regarding Plaintiff's report to Defendant Sherman and Defendant Major's alleged misuse of the MOCIC telephone line. Plaintiff did not speak to the Olathe newspaper or any other media organization concerning either his conversation with Defendant Sherman or his suspicions of misuse of the MOCIC telephone line.
On February 26, 1998, Plaintiff met with the Johnson County District Attorney, Paul Morrison, to discuss the MOCIC situation.
On March 3, 1998, Plaintiff received notification that Defendant Major had authorized an Internal Affairs Investigation against him. According to the notification, Plaintiff had "engaged in action disrespectful of other officers" and "failed to give suitable attention to the performance of his duties." Plaintiff's Complaint at ¶ 71. Plaintiff was placed on administrative leave pending the outcome of the investigation. During the investigation, officers searched Plaintiff's desk without his permission.
On June 29, 1998, Plaintiff received a letter from Defendant Sherman. The letter advised Plaintiff that Defendant Sherman had reviewed the results of the Internal Affairs Investigation and determined that Plaintiff had violated multiple sections of the Olathe Police Department Rules and Regulations. As a result, Plaintiff was suspended without pay for four weeks and placed on one year of disciplinary probation. In accordance with the guidelines of his probation, Plaintiff was to have his performance evaluated on a monthly basis and to attend employee counseling.
Plaintiff was reassigned from Commander of the Investigations Division to a position in the Administration Division entitled Special Projects Officer. He experienced grief, shame, embarrassment, anger, and disappointment after being transferred to this administrative position. Plaintiff found his working conditions to be so intolerable that he eventually retired early.
III. Discussion A. Retaliatory Discharge
In Counts III and IV of his complaint, Plaintiff alleges that Defendants demoted and constructively discharged him in retaliation for his "whistle-blowing" activities concerning Defendant Major's alleged misuse of the MOCIC telecommunication system. Plaintiff complains that such retaliation is in violation of Kansas law, which makes it unlawful for an employer to demote or terminate an employee in retaliation for good faith reporting of serious infractions of rules, regulations, or law to either company management or law enforcement officials. See Brigham v. Dillon Cos., Inc., 935 P.2d 1054, 1059-60 (Kan. 1997); Palmer v. Brown, 752 P.2d 685, 689-90 (Kan. 1988). Defendants argue that Plaintiff is precluded from bringing any claims for retaliatory demotion/discharge based upon his whistle-blowing activities, because 42 U.S.C. § 1983 provides him with an adequate, alternative remedy. The court agrees.
Defendants actually argue that Plaintiff is "preempted" from bringing any claims for retaliatory demotion/discharge because § 1983 provides him with an adequate, alternative remedy. The court determines, however, that use of the word "preemption" in this context is somewhat confusing. See, e.g., Flenker v. Willamette Indus., Inc., 967 P.2d 295, 299 (Kan. 1998) ("The question to ask in resolving recognition of a state tort claim for retaliatory discharge is whether the statutory remedy is adequate and thus precludes the common-law remedy."); Equal Employment Opportunity Comm'n v. Int'l Paper Co., No. 91-2017-L, 1992 WL 370850, at *6 (D.Kan. Oct. 28, 1992) (declining to entertain defendant's argument that plaintiff's state law claims are barred due to the presence of an available federal remedy where pretrial order "discusses preemption, not adequate alternative remedies" and the "two doctrines are significantly different"); but cf. King v. Unified Sch. Dist. No. 500, No. 92-2414-EEO, 1993 WL 141868, at *1 (D.Kan. Apr. 23, 1993) (holding that plaintiff's state law claim for retaliatory discharge is "preempted" by her § 1983 claim); Groh v. City of Lenexa, Kan., No. 90-2073-V, 1991 WL 79662, at *4 (D.Kan. Apr. 16, 1991) (holding same). For this reason, the court uses the word "precluded."
The general rule in Kansas is at-will employment, meaning "in the absence of a contract, expressed or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party." Flenker v. Willamette Indus., Inc., 967 P.2d 295, 298 (Kan. 1998) (quoting Johnston v. Farmers Alliance Mut. Ins. Co., 545 P.2d 312, 315 (Kan. 1976)). Kansas courts, however, have recognized certain public policy exceptions to the at-will employment doctrine. See id. One such exception is commonly referred to as the "whistle-blower" exception. This exception makes it unlawful for an employer to demote or terminate an employee in retaliation for his good faith reporting of a co-worker's or employer's serious infraction of rules, regulations, or laws pertaining to public health, safety, and the general welfare to either company management or law enforcement officials. See Brigham, 935 P.2d at 1059-60; Palmer, 752 P.2d at 689-90.
Plaintiff's allegations in his complaint appear to state a valid claim for retaliatory demotion/discharge based upon the whistle-blowing exception, because Plaintiff alleges that Defendants unlawfully demoted him and terminated his employment (by constructively discharging him) in retaliation for his good faith reporting of Defendant Major's alleged misuse of the federally funded MOCIC telecommunication system — a system designed to assist law enforcement officials in fighting crime. Kansas courts, however, will not recognize a claim based upon a public policy exception to the at-will employment doctrine where a state or federal statute provides an adequate, alternative remedy. See Flenker, 967 P.2d at 299 (citing Bair v. Peck, 811 P.2d 1176, 1187-88 (Kan. 1991); Masters v. Daniel, Int'l Corp., 917 F.2d 455, 457 (10th Cir. 1990)). Thus, "`[i]n order to succeed on a claim for retaliatory discharge under Kansas law, a plaintiff must show not only that [he] was discharged in contravention of public policy, but also that [he] has no alternative remedy under state or federal law.'" Conner v. Schnuck Mkts., Inc., 906 F. Supp. 606, 615 (D.Kan. 1995) (quoting Braun v. Dillon Cos., Inc., No. 94-2079-EEO, 1995 WL 261142, at *10 (D.Kan. Apr. 19, 1995)). Plaintiff is unable to do this; Plaintiff is unable to show that he has no other adequate, alternative remedy under federal law. Plaintiff brings a claim pursuant to § 1983 based upon the very same factual allegations as his whistle-blowing claim. Plaintiff does not contest that § 1983 provides him with an alternative vehicle for pursuing a claim against Defendants for retaliatory demotion/discharge based upon his reporting of Defendant Major's alleged misuse of the MOCIC telecommunication system. Nor does he contest that § 1983 provides him with an adequate remedy. Instead, he simply argues that the adequate alternative doctrine does not apply to the facts of this case. Plaintiff argues that the adequate alternative doctrine applies only where the court is faced with a decision of whether to recognize a new public policy exception to the at-will employment doctrine, and not where, as here, the court is faced with a decision of whether to recognize an already existing public policy exception. The court rejects Plaintiff's argument. The public policy exception based upon whistle-blowing was first announced by the Kansas Supreme Court in 1988 in Palmer v. Brown, 752 P.2d 685 (Kan. 1988). Since that decision, numerous courts have precluded whistle-blowing claims pursuant to the adequate alternative doctrine where the plaintiff has had an alternative cause of action under § 1983. See, e.g., Merkel v. Leavenworth County Emergency Med. Servs., 98-2335-JWL, 2000 WL 127266, at *12 (D.Kan. Jan. 4, 2000) (precluding plaintiff's retaliatory discharge claim based upon whistle-blowing where § 1983 "clearly provides an alternative vehicle for plaintiff to pursue any injuries stemming from his alleged retaliatory discharge"); King v. Unified Sch. Dist. No. 500, No. 92-2414-EEO, 1993 WL 141868, at *1 (D.Kan. Apr. 23, 1993) (same); Groh v. City of Lenexa, Kan., No. 90-2073-V, 1991 WL 79662, at *4 (D.Kan. Apr. 16, 1991) (same).
The court concludes that § 1983 provides Plaintiff with an adequate, alternative remedy to his claim for retaliatory demotion/discharge based upon whistle-blowing and, therefore, Plaintiff is precluded from pursuing Counts III and IV of his complaint.
B. Intentional Infliction of Emotional Distress
In Count V of his complaint, Plaintiff brings a claim for intentional infliction of emotional distress. Defendants argue that this claim should be dismissed because the underlying allegations are insufficient to state a claim as a matter of law. The court agrees.
Kansas recognizes the tort of intentional infliction of emotional distress. See Moore v. State Bank of Burden, 729 P.2d 1205, 1211 (Kan. 1986). Under this tort, "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another may be liable for such emotional distress." Id. To state a claim against Defendants, Plaintiff must allege that (1) Defendants' conduct was intentional or in reckless disregard of Plaintiff, (2) Defendants' conduct was extreme and outrageous, (3) a causal connection existed between Defendants' conduct and Plaintiff's mental distress, and (4) Plaintiff's mental distress was extreme and severe. See Nwakpuda v. Falley's, Inc., 14 F. Supp.2d 1213, 1218 (D.Kan. 1998) (citing Roberts v. Saylor, 637 P.2d 1175, 1179 (Kan. 1981)). In addition, Plaintiff must meet two threshold requirements: Plaintiff must convince the court that reasonable fact finders might conclude that (1) Defendants' conduct was sufficiently extreme and outrageous as to permit recovery, and (2) Plaintiff's emotional distress suffered as a result of Defendants' conduct was so extreme and severe that no reasonable person should be expected to endure it. See Nwakpuda, 14 F. Supp.2d at 1218 (citing Roberts, 637 P.2d at 1180). Conduct is considered extreme and outrageous if it is "beyond the bounds of decency and utterly intolerable in a civilized society." Moore, 729 P.2d at 1211 (citing Neufeldt v. L.R. Foy Constr. Co., 693 P.2d 1194, 1198 (Kan. 1985)). Courts will dismiss claims for intentional infliction of emotional distress pursuant to Rule 12(b)(6) when "all the elements are not alleged or when the alleged conduct does not amount to extreme and outrageous under state law." Gudenkauf v. Stauffer Communications, Inc., 922 F. Supp. 461, 464-65 (D.Kan. 1996) (citing West v. Boeing Co., 843 F. Supp. 670, 677-79 (D.Kan. 1994); Moten v. Am. Linen Supply Co., 155 F.R.D. 202, 205 (D.Kan. 1994); Boisjoly v. Morton Thiokol, Inc., 706 F. Supp. 795, 801 (D.Utah 1988)).
Plaintiff has failed to allege conduct that is sufficiently extreme and outrageous to permit recovery under Kansas law. Plaintiff alleges that, in an effort to punish him for reporting Defendant Major's alleged misuse of the MOCIC telecommunication system, Defendants (1) initiated an Internal Affairs Investigation against him, (2) placed him on administrative leave, (3) improperly searched his desk, (4) required him to attend employee counseling, (5) demoted him to a new position which gave him less important responsibilities and effectively isolated him from contact with his peers, (6) sustained most of the violations alleged against him in the Internal Affairs Investigation, (7) suspended him without pay for four weeks, (8) placed him on disciplinary probation for one year, and (9) forced him to retire early. Such allegations do not rise to the level of extremeness and outrageousness necessary to permit recovery. Courts are very reluctant to extend the tort of intentional infliction of emotional distress to the employment context. See West, 843 F. Supp. at 678 (citing Laughinghouse v. Risser, 754 F. Supp. 836, 843 (D.Kan. 1990)). "Employment discrimination by itself, without aggravating factors like ethnic slurs and physical threats, does `not amount to outrage.'" Gudenkauf, 922 F. Supp. at 464 (citing Rupp v. Purolator Courier Corp., 790 F. Supp. 1069, 1073 (D.Kan. 1992) (further citation omitted)). The court determines that the conduct alleged cannot be considered "beyond the bounds of decency and utterly intolerable in a civilized society." Moore, 729 P.2d at 1211. Instead, it is more akin to "`ordinary business decisions . . . made every day by employers across the nation.'" Moten, 155 F.R.D. at 205 (quoting Anspach v. Tomkins Indus., Inc., 817 F. Supp. 1499, 1508 (D.Kan. 1993)).
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants' motion to dismiss (Doc. 35) is granted; Counts III, IV, and V of Plaintiff's complaint are dismissed.
Copies of this order shall be mailed to counsel of record for the parties.
IT IS SO ORDERED.