Civil Litigation Case Update List
Carter v. Pathfinder Energy Services, Inc., ___ F.3d ___ (10th Cir. No. 10-8112, filed 11/03/11). The Tenth Circuit considered the ADA claim of a diabetic driller who was allegedly fired because of an altercation with another employee and use of bad language in a conversation with a supervisor. Plaintiff filed suit raising several claims, among them that he was terminated in violation of the Americans with Disabilities Act (ADA) because he had diabetes. The district court granted summary judgment to the employer on the ADA discrimination claim, concluding that plaintiff was not disabled based on the general notion that medication-controlled or diet-controlled diabetes is not a substantially limiting condition. The Tenth Circuit reversed summary judgment on the ADA claim, concluding that "hypothetically controllable disabilities are not automatically to be judged in their corrected state." (Emphasis added.) Rather, the district court must determine on the facts of each case whether plaintiff was actually able to control his diabetes through medication or diet. Because there was evidence in the record that plaintiff could not have controlled his diabetes with medication or diet, there was a fact question about whether plaintiff's diabetes was a substantially limiting condition and thus whether he suffered a disability as defined by the ADA.
Wright v. Kansas State Board of Education, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104634, filed 01/20/12). The board of education did not err or violate the expungement statutes by considering Wright's expunged conviction of felony theft or his disbarment in deciding not to issue him a teaching license. "In the end, if the Board has followed the rules, it is the judgment of the State Board of Education that matters when deciding who is fit to teach in Kansas, and not the courts. That is the public trust placed on the Board. We agree with the district court that the Board has followed the rules in this case. We will not substitute our view for that of the Board." Atcheson, J., concurring, said he upheld the board's decision "reluctantly," noting that "[i]n many respects, the Board supports its determination with factual distortions, specious legal interpretation, and lofty sounding rhetoric signifying little of substance."
Tomlinson v. El Paso Corp., ___ F.3d ___ (10th Cir. No. 10-1385, filed 8/11/11). Defendant El Paso ended its traditional pension plan and switched to a "cash balance plan." The old plan was a typical defined-benefit pension plan; employees received retirement benefits equal to a percentage of their final average monthly earnings multiplied by their years of service. Under the new cash balance plan, a percentage of each employee's pay was deposited into a hypothetical cash balance "account." The percentage of these "pay credits" increased with an employee's age and years of service. The cash balance plan adopted by El Paso was, as the company informed its employees, less generous than its previous traditional pension plan. A putative class of older employees filed suit, claiming that the alleged disadvantages they suffered by the implementation of the new pension plan amounted to violations of the ADEA. Plaintiffs' ADEA claims were dismissed on summary judgment. They appealed. Regarding plaintiffs' Section 4(i) ADEA claim, the Tenth Circuit held that determining whether a defined benefit plan has reduced a participant's benefit accrual because of age depends on what the employer puts into the program, not what the employee takes out. The court joined other circuits in holding that "plaintiffs alleging discriminatory benefit accrual must present evidence showing that the inputs are discriminatory rather than relying on disparate outputs." Thus, because El Paso did not discriminate in its distribution of "pay credits" under the new plan, any disadvantage older employees suffered simply by transition to the new plan was not discrimination.
Baggett v. Board of County Comm'rs of Douglas County, Kansas, ___ Kan.App.2d ___, ___ P.3d ____ (No. 104441 filed 09/30/11). The Kansas Court of Appeals considered the propriety of an island annexation approved by a Board of County Commissioners (BOCC). Developers sought annexation of 155 acres of agricultural land near the Lecompton interchange of the Kansas Turnpike by the City of Lawrence. Because the land did not adjoin the city limits, the request was for an island annexation under K.S.A. 12-520c. The developers were unable to specify the intended uses of the land except to say that it would be something within the industrial zoning classifications. Despite strong recommendations otherwise from its planning staff, the City Planning Commission recommended annexation and, pursuant to the island annexation statute, sought the BOCC's approval. After a hearing, the BOCC approved the annexation 2-1. A group of landowners appealed the BOCC decision to the district court. The district court affirmed the BOCC's decision. The landowners appealed. The Court of Appeals reversed the BOCC's decision because the BOCC did not consider whether all possible uses of the property would be incompatible with the existing residential area. The court said:
"Where the developer of land in an island annexation cannot specify the intended uses of the land but provides only a category of potential uses, the Board must examine those potential uses-or at least the most potentially deleterious uses-and determine whether those potentially deleterious uses would 'hinder or prevent the proper growth and development of the area.' Failing in that examination, the annexation cannot survive judicial scrutiny under K.S.A. 12-520c."
The matter was remanded for further proceedings
Fox v. Vice, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 10-114, filed 06/06/11). Where a lawsuit alleges both frivolous and non-frivolous claims, a defendant can only recover attorney fees pursuant to 42 U.S.C. § 1988 only for the costs that defendant would not have incurred but for the frivolous claims. Fox and Vice were both running for police chief in Vinton, Louisiana. Vice, the incumbent chief, resorted to some dirty tricks, such as mailing an anonymous letter to Fox threatening to publish damaging charges unless he dropped out of the race, and arranging for a third-party to allege that Fox uttered racial slurs. Vice was subsequently convicted of criminal extortion based on these acts. Fox sued, claiming Vice and the City violated 42 U.S.C. § 1983 for interfering with his right to seek public office, as well as various state law claims. At the close of discovery, Fox conceded his civil rights claim was frivolous, but alleged the state law claims had merit. The district court granted awarded fees for defense of the entire suit, and the 5th Circuit affirmed. The Supreme Court reversed, holding that the but-for test requires allocation between frivolous and non-frivolous claims, and only allows recovery solely for the former.
Board of County Comm'rs. of Sedwick County, Kansas v. City of Park City, ___ Kan. ___, ___ P.3d ___ (No. 100157, filed 09/09/11). Park City annexed land. Sedgwick county opposed it and was awarded summary judgment. Park City requested and received two extensions to file post-trial motions. After losing those, Park City appealed. It contended that the district court's extension of deadlines should allow it to appeal out of time based on unique circumstances. The appellant's argument that an appellate court may exercise jurisdiction over a late appeal if the appellant can show unique circumstances, i.e., that the appellant reasonably relied on some judicial action that purportedly extended the time period for bringing an appeal, is rejected. An appellate court has no authority to create equitable exceptions to jurisdictional requirements and, therefore, the use of the unique circumstances doctrine to save an untimely appeal is illegitimate. Accordingly, Johnson v. American Cyanamid Co., 243 Kan. 291, 758 P.2d 206 (1988), and Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988), are overruled to the extent they authorize an exception to a jurisdictional rule.
Green v. Blitz U.S.A, Inc., ___ F.Supp.3d ___(E.D. Tex. Mar. 1, 2011), the U.S. District Court for the Eastern District of Texas found the defendant’s abuse of the discovery process to be so egregious that it ordered the offending party to provide a copy of the court’s highly detailed opinion to every plaintiff in every lawsuit it has had proceedings against it during the two previous years. Moreover, the court ordered that a copy of the opinion be filed with the abusing party’s first pleading with the presiding court in every new lawsuit in which it is a party, whether as a plaintiff, defendant, or any other capacity, for five years.
J.A. Tobin Construction Co., Inc. v. Williams, ___ Kan.App.2d ___, ___ P.3d ____ (No. filed 104458, filed 09/30/11). When a real-estate owner fails to pay property taxes for an extended time period, the government may sell the property to pay those taxes. But first it must make reasonable efforts to notify the owner. Therefore, if the owner's name and address are readily ascertainable, the government must provide notice of the tax sale by personal service (received directly by the taxpayer or, when authorized by law, its agent) rather than by publication service through a general notice published in a newspaper.
Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, ___ L.Ed.3d ___ (2009). Iqbal’s complaint fails to plead sufficient facts to state a claim for purposeful and unlawful discrimination. Pp. 11–23.
(a) This Court assumes, without deciding, that Iqbal’s First Amendment claim is actionable in a Bivens action, see Hartman v. Moore, 547 U. S. 250, 254, n. 2. Because vicarious liability is inapplicable to Bivens and §1983 suits, see, e.g., Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691, the plaintiff in a suit such as the present one must plead that each Government-official defendant, through his own individual actions, has violated the Constitution. Purposeful discrimination requires more than “intent as volition or intent as awareness of consequences”; it involves a decisionmaker’s undertaking a course of action “ ‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279. Iqbal must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason, but for the purpose of discriminating on account of race, religion, or national origin.
(b) Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” “[D]etailed factual allegations” are not required, Twombly, 550 U. S., at 555, but the Rule does call for sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face,” id., at 570. A claim has facial plausibility when the pleaded factual content allows the court to draw thereasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. Two working principles underlie Twombly.First, the tenet that a court must accept a complaint’s allegations astrue is inapplicable to threadbare recitals of a cause of action’s ele-ments, supported by mere conclusory statements. Id., at 555. Sec-ond, determining whether a complaint states a plausible claim is con-text-specific, requiring the reviewing court to draw on its experience and common sense. Id., at 556. A court considering a motion to dis-miss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
"The basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation,including "avoidance of disruptive discovery." Siegert v. Gilley, 500 U. S. 226, 236 (1991) (KENNEDY, J., concurring in judgment)." Iqbal, 129 S.Ct. at ___.
Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). Proximate cause is cause "which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred, the injury being the natural and probable consequences of the wrongful act." A plaintiff must produce evidence that "affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result." Id. at 628.
Campbell v. Husky Hogs, L.L.C., ___ Kan. ___, ___ P.3d ___ (No. 103458, filed 05/20/11). A common-law tort for retaliatory discharge may be brought against an employer when an employee claims he or she was fired for filing a wage claim under the Kansas Wage Payment Act (KWPA), K.S.A. 44-313 et seq. The district court dismissed the lawsuit because there was no previously recognized exception to the terminable-at-will doctrine for discharging an employee for filing a KWPA wage claim. The district court also found there was an adequate remedy available under that Act. The Supreme Court reversed, holding the pleadings state a valid claim for retaliatory discharge, and the statutory remedies provided by the KWPA are an insufficient substitute for common-law remedies.
Keylon v. City of Albuquerque, 535 F.3d 1210, 1217-18 (10th Cir. 2008). Qualified immunity is almost always a question of law and should only be submitted to a jury in exceptional cases. In a 42 U.S.C. section 1983 action alleging that plaintiff's Fourth Amendment rights were violated when she was arrested without probable cause for concealing her identity, denial of post-trial motion by plaintiff after a jury found defendant-officer not liable is reversed where, since there were no disputed issues of material fact regarding whether the officer had probable cause to arrest, the district court erred in denying plaintiff judgment as a matter of law and in submitting the question of qualified immunity to the jury. Officers were investigating an alleged criminal damage case. Keylon was identified as the suspect's mother. An officer asked her for the son's date of birth. Keylon said she did not know. The officer determined she was lying, demanded ID from her, and then arrested her for concealing her identity in violation of a statute prohibiting "resisting or abusing a . . peace officer in the lawful discharge of his duties." Finding there was no reasonable suspicion to suspect that Keylon was violating an ordinance, the Circuit held there was no probable cause for her arrest and the issue of qualified immunity should not have been submitted to the jury.
Porter v. Wells Fargo Bank, N.A., ___ Kan.App.2d ___, ___ P.3d ____ (No. 103323, filed 05/20/11). Substantial compliance under K.S.A. 60-204 is not met by serving a foreign corporation by certified mail addressed generally to the corporation at a post office box address. Since service of process was never properly effected on Wells Fargo, the district court never acquired jurisdiction over the person of the defendant, and the subsequent judgment is void ab initio. See also Taylor v. Medicalodges, Inc., No. 102,539, unpublished opinion filed August 20, 2010 pet. for rev. filed September 20, 2010 (pending).
Helm v. State of Kansas, ___ F.3d ___ (10th Cir. No. 10-3092, filed 09/07/11). Plaintiff sued the State under Title VII for sexual harassment. The district court granted summary judgment for defendant on the basis that Helm fell within the personal staff exemption to Title VII's definition of employee and did not qualify for protection under that statute. The district court concluded that summary judgment was also proper based on the State's assertion of the Faragher/Ellerth defense to employer liability for harassment of an employee by a supervisor. Helm appealed. The Tenth Circuit affirmed on the basis of the Faragher/Ellerth defense and did not address the question of whether Helm, a judicial administrative assistant, fell within the personal staff exemption under Title VII. Helm argued that her supervisor, a state district judge, was the alter ego of the State of Kansas, rendering the Faragher/Ellerth defense unavailable. The Tenth Circuit disagreed, reasoning that "state district judges, although they have considerable authority, do not occupy a position in the top echelons of the state's management." Further, the Tenth Circuit held that the harassment did not culminate in Helm's termination because she was terminated by a different judge and the termination was based on her own criminal conduct. Finally, the Tenth Circuit concluded that the State exercised reasonable care to prevent and promptly correct any sexually harassing behavior and Helm failed to take advantage of preventive or corrective opportunities.
Revised February 13, 2012