Hill v. State ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,403
SAGE HILL,
Appellant/Cross-appellee,
v.
STATE OF KANSAS and ERNEST GARCIA,
Appellees/Cross-appellants.
SYLLABUS BY THE COURT
1.
The Kansas Judicial Review Act, K.S.A. 77-601 et seq., does not apply to the civil
tort of retaliatory job action against an administrative agency.
2.
The Civil Service Board's jurisdiction under the Civil Service Act, K.S.A. 2018
Supp. 75-2929d(a), does not extend to retaliatory job actions in work assignments,
relocations, or transfers.
3.
Under K.S.A. 2018 Supp. 75-2949(g) of the Civil Service Act, no civil service
employee may be disciplined or discriminated against in any way because of the
employee's proper use of the Act's appeal procedure.
4.
Kansas law recognizes the tort of retaliatory job action when a civil service
employee is disciplined or discriminated against in any way because of the employee's
proper use of the Civil Service Act's appeal procedure.
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5.
An actionable retaliatory job action can include a civil service employer's act that
is materially adverse to a reasonable civil service employee, i.e., harmful to the point it
could dissuade a reasonable employee from exercising the employee's rights under the
Civil Service Act.
6.
The Kansas Tort Claims Act, K.S.A. 75-6101 et seq., provides that a governmental
entity can be found liable for the negligent or wrongful act or omission of any employee
while acting within the scope of employment if (a) a private person could be liable under
the same circumstances, and (b) no statutory exception to liability applies.
7.
When a litigant fails to adequately brief an issue, it is deemed abandoned.
8.
If a clearly defined mandatory duty or guideline exists, the discretionary function
exception of the Kansas Tort Claims Act is inapplicable.
9.
The elements of a prima facie claim for retaliatory job action for using the Civil
Service Act's appeal procedure are: (a) an employee filed a Civil Service Act appeal; (b)
an employer knew the employee filed such an appeal; (c) the employer subjected the
employee to a materially adverse job action; and (d) a causal connection existed between
the filing of the appeal and the adverse job action.
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10.
A court should be cautious in granting a motion for summary judgment when
resolution of the dispositive issue requires it to determine the state of mind of one or both
of the parties.
Review of the judgment of the Court of Appeals in 53 Kan. App. 2d 155, 388 P.3d 122 (2016).
Appeal from Shawnee District Court; REBECCA W. CROTTY, judge. Opinion filed September 6, 2019.
Judgment of the Court of Appeals affirming in part and reversing in part the district court and dismissing
the case is affirmed in part and reversed in part. Judgment of the district court is affirmed in part and
reversed in part, and the case is remanded for further proceedings.
Michael T. Miller, of McCauley & Roach, LLC, of Kansas City, Missouri, argued the cause, and
Morgan L. Roach, of the same firm, was with him on the briefs for appellant.
M.J. Willoughby, assistant attorney general, argued the cause, and Derek Schmidt, attorney
general, was with her on the briefs for appellees.
The opinion of the court was delivered by
BILES, J.: Kansas Highway Patrol Trooper Sage Hill alleges the KHP retaliated by
requiring him to move across the state to keep his job after the Kansas Civil Service
Board ordered the agency to reinstate him to work. State law expressly provides no civil
service employee—including a KHP trooper—may be disciplined or discriminated
against "in any way because of the employee's proper use of the appeal procedure."
(Emphasis added.) K.S.A. 2018 Supp. 75-2949(g). No one claims Hill improperly
exercised his civil service right. This appeal presents three questions before this court:
(1) whether a common-law cause of action for employer retaliation may be based on an
adverse job action short of dismissal or demotion; (2) whether the State's sovereign
immunity bars the claim regardless of its merits; and (3) whether the uncontroverted
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material facts entitle defendants to summary judgment against Hill. The first two are
matters of first impression.
The lower courts disagreed with each other in answering these inquiries although
both ultimately held Hill's case could not go to a jury. Hill v. State, 53 Kan. App. 2d 155,
157, 388 P.3d 122 (2016). We granted review. A majority now affirms in part, reverses in
part, and remands to the district court for further proceedings.
We hold the common-law tort of retaliation may be premised on an employer's
action short of dismissal or demotion, such as the involuntary job relocation alleged in
this case. To hold otherwise would undermine the purposes supporting common-law job
retaliation claims and the important public policy expressed in the Kansas Civil Service
Act, K.S.A. 75-2925 et seq. We further hold sovereign immunity does not bar Hill's
claim. Finally, we conclude there are genuine issues of material facts precluding
summary judgment. Remand is necessary for the district court to resolve these remaining
controversies.
FACTUAL AND PROCEDURAL BACKGROUND
Given the procedural posture, all facts and inferences that may be reasonably
drawn from the evidence are resolved in Hill's favor because the district court decided
this case against him on summary judgment. Lumry v. State, 305 Kan. 545, 547, 385 P.3d
479 (2016); Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1204, 308
P.3d 1238 (2013); O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330,
277 P.3d 1062 (2012). Our factual statement is prepared with that recognition.
In January 2008, the KHP hired Hill as a trooper and assigned him to Troop H in
Cherokee County, which is in our state's southeastern corner. Hill worked there until
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November 2011 when the KHP fired him over a dispute with a supervisor who was
investigating a civilian complaint against him. Hill appealed to the Kansas Civil Service
Board, which is statutorily created to provide civil service employees with an
independent review for specific types of state agency employment actions. See K.S.A.
75-2929a (creation of board); K.S.A. 2018 Supp. 75-2929d(a) (board's authority to hear
appeals concerning demotion, dismissal, or suspension of permanent employees in state
classified service); K.S.A. 2018 Supp. 75-2935(1), (2) (including KHP troopers as
classified state employees).
The board reversed the termination although it agreed Hill's misconduct warranted
discipline. The board modified the sanction to a one-year suspension without pay and
benefits. For the KHP, this was an unprecedented reversal of its command staff's decision
to fire a trooper.
In reinstating Hill, the KHP decided to treat him as a new hire who could be
"assigned" wherever needs were greatest. At that time, Finney County in southwestern
Kansas had the greatest need. KHP Superintendent Ernest Garcia agreed and made the
final decision. On December 13, 2012, Garcia sent Hill a letter, stating:
"In accordance with the Final Order of the Civil Service Board, your dismissal as a
Trooper is being modified to a suspension without pay and benefits for a period of one
year from the date of your dismissal.
"You are being returned to active duty effective November 6, 2012 and transferred from
Troop H to Troop E, Finney County." (Emphasis added.)
KHP admits it is undesirable to involuntarily relocate a trooper previously
assigned to another geographic area because it disrupts the trooper's personal life.
Multiple command staff members testified they could not remember ever involuntarily
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transferring a trooper after an initial area assignment as a new hire. Garcia also could not
recall ever involuntarily changing a trooper's job placement. KHP further agrees no other
trooper was involuntarily transferred to remedy the trooper shortage in southwestern
Kansas, which was the ostensible reason for transferring Hill. The evidence before the
district court showed no KHP trooper had been involuntarily transferred for at least the
past four decades. KHP acknowledges it was more challenging to get troopers to serve in
western Kansas.
Hill tried to administratively challenge his relocation. He asked the Civil Service
Board to amend its reinstatement order to prevent it. The board denied the request by
finding that it was untimely and that the KHP complied with its order by returning Hill to
active duty. Hill then sought to appeal the transfer under the Civil Service Act, but the
board determined it lacked jurisdiction because the Act limits its authority to agency
initiated demotions, dismissals, or suspensions. See K.S.A. 2018 Supp. 75-2929d(a)(1).
Undeterred, Hill sought a hardship assignment from the KHP premised on caring
for his mother, who suffered health problems including multiple sclerosis. Command
staff recommended against this, believing the hardship was insufficiently documented
and because troopers were needed in western Kansas. Garcia agreed and denied the
request.
In February 2013, Hill reported for duty in Finney County. That same month, he
requested relocation back to southeastern Kansas under the KHP's biannual voluntary
transfer program called "make a wish." This gives troopers a chance to express a location
preference and for the KHP to determine if that preference can be accommodated. The
"make a wish" announcement included Cherokee County, Hill's prior assigned area, as
needing manpower. Nevertheless, Hill's troop captain in southwestern Kansas and the
command staff recommended against his request. Garcia agreed by letter, stating: "Sage,
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a greater need exists for your services in your present duty assignment. It would not be
practical or in the best interest of the agency to authorize a move."
In May 2013 Hill sued the KHP and Garcia in district court. He alleged his
transfer was retaliatory and violated the public policy imbued in K.S.A. 2018 Supp. 75-
2949(g) (prohibiting discipline or discrimination "in any way" against employees who
properly pursue civil service appeals). He later amended the lawsuit to substitute the State
of Kansas as a defendant for the KHP.
In October 2013 Hill made a second "make a wish" request to Cherokee County in
response to another announcement listing that county as needing manpower. Again, his
southwestern Kansas troop captain opposed transfer, citing the southwest region's
continued staffing needs. Garcia denied Hill's request on the same rationale as before.
Also that October, Hill requested transfer to Troop G, which covers the Kansas
Turnpike. He was the most senior trooper to bid for the position, and Garcia approved.
Since December 2013 Hill has lived in Augusta, worked as a trooper along the turnpike,
and received a promotion to a master trooper.
The district court proceedings
The defendants filed separate motions to dismiss. Relevant for this appeal, they
claimed: (1) the district court lacked subject matter jurisdiction because Hill's exclusive
remedy was under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq.; (2)
the district court lacked subject matter jurisdiction because there is no private right of
action under the Civil Service Act; (3) Hill failed to state a claim upon which relief could
be granted; and (4) sovereign immunity shielded the defendants from liability under three
provisions of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.: K.S.A. 2018
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Supp. 75-6103(a) (governmental entity liable for damages caused by the negligent or
wrongful act or omission of its employees acting within scope of employment under
circumstances in which the governmental entity, if a private person, would be liable),
K.S.A. 2018 Supp. 75-6104(c) (no liability for enforcement or failure to enforce a law),
and K.S.A. 2018 Supp. 75-6104(e) (no liability for discretionary function).
The district court denied the motions, concluding: it had subject matter
jurisdiction; Hill stated a valid common-law retaliation claim based on the protection
embedded within K.S.A. 2018 Supp. 75-2949(g) (prohibiting discipline or discrimination
"in any way" against employees using the civil service appeal process); and the
defendants had no sovereign immunity. In a follow-up order, the court clarified the
decision to transfer Hill was an agency action under the KJRA but held that did not
matter because Hill was seeking redress for the agency's tortious conduct—not for
judicial review of the agency's administrative action.
Following discovery, the district court granted summary judgment in defendants'
favor, noting Hill did not establish a prima facie retaliation case based on the
uncontroverted record. It reached this conclusion by first acknowledging there could be a
retaliatory "adverse employment action" claim for retaliation based on the Civil Service
Act.
To establish a prima facie retaliation case, Hill had to prove: (1) he took a
protected action; (2) the defendants knew about the protected action; (3) they took an
adverse employment action; and (4) a causal connection linked the protected action to the
adverse employment action. The district court found Hill satisfied the first two elements
but failed to show the remaining two. The court stated Hill did not prove he suffered an
adverse employment action because his transfer was not "the essential equivalent of a
demotion." And it concluded Hill did not demonstrate the necessary causal link because
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the only evidence to suggest the appeal caused the transfer, in the court's view, was that
Garcia was "very angry." This, it concluded, was insufficient to demonstrate a causal
connection even though the reinstatement order and transfer occurred close in time.
The court finally noted Hill failed to show the defendants' justification for the
transfer was pretext. As to this, it reasoned,
"[T]he evidence consistently demonstrates that the [Command] Staff viewed the
Plaintiff's placement as an assignment because they did not view him as an employee. No
trooper can hold a position in another law enforcement agency while they are a trooper.
Because the Plaintiff worked for the Cherokee County Sheriff's Department immediately
prior to—and after—his reinstatement, the [Command] Staff viewed the Plaintiff not as
an employee, but as a 'new body.' The [Command] Staff consistently testified that
because of this unexpected addition, they wanted to place him where he was needed the
most. The needs of KHP had changed from when the Plaintiff was terminated, and the
strongest need was in Troop E. All five members of the [Command] Staff consistently
testified to these views. This evidence demonstrates that a reasonable factfinder could
only conclude that the [Command] Staff believe they legitimately placed the Plaintiff in
Troop E to satisfy manpower needs, as opposed to transferring him involuntarily to
retaliate against him."
Hill appealed. The defendants cross-appealed the earlier denial of their motions to
dismiss.
The Court of Appeals decision
The Court of Appeals noted Hill presented, among his other arguments, two
issues of first impression: (1) attempting to establish a public policy exception to the
employment-at-will doctrine based on the anti-retaliation provisions in K.S.A. 2018
Supp. 75-2949(g); and (2) suing for what the panel characterized as a common-law tort of
9
"retaliatory job placement," as opposed to the more traditional retaliatory job actions
recognized for firings and demotions. Hill, 53 Kan. App. 2d at 183. The panel ultimately
held in the defendants' favor.
The panel agreed with the district court that the KJRA and the Civil Service Act
were not exclusive means of recovery that barred Hill's lawsuit. It further held the Civil
Service Act embodied a clear "public policy against employers retaliating against
employees who appeal their dismissal, demotion, or suspension" and that a common-law
tort action could be premised on an employer's retaliation for exercising Civil Service Act
appeal rights. 53 Kan. App. 2d at 187. And it held there was no adequate alternative
remedy for Hill's retaliatory job placement claim. 53 Kan. App. 2d at 189.
Although acknowledging this generally "would be enough to establish a public
policy exception to at-will employment," the panel concluded retaliatory job transfers
were insufficiently harmful to be a valid common-law tort—unlike a demotion or
discharge. It reasoned Hill's job placement in southwest Kansas "resulted in no harm, that
is, no loss of job, job status, pay, or benefits." 53 Kan. App. 2d at 191. The panel stated,
"[A]n agency transfer, by definition, does not involve a harm. Instead, a transfer is a
lateral move from one position to another with similar or identical duties and similar or
identical pay. More importantly, in the KHP, a trooper transfer does not involve any
change in employment other than the county of work location.
"Having established that retaliatory discharge and demotion torts must involve
harm, we are very doubtful that our Supreme Court would recognize a tort for retaliatory
job placement. Although our Supreme Court's position on this issue would be an
interesting question, we do not have to answer that question here. For our research has
revealed that all recognized retaliatory torts involved some showing of harm, for instance,
that a plaintiff has suffered a loss of job status, a loss of pay, or a loss of benefits.
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Without a showing of this kind of harm, Hill's argument for extending the common-law
tort for retaliation in violation of public policy is a departure from the parameters
established by our Supreme Court in other cases where the court has recognized this kind
of a tort." 53 Kan. App. 2d at 192.
That logic carried through to the panel's sovereign immunity conclusion. The
panel decided that because a lateral change in job placement could not be a basis for a
valid common-law tort claim against any employer—public or private—the defendants
were entitled to sovereign immunity. 53 Kan. App. 2d at 196 ("Because a private person
could not be liable for a retaliatory job placement, then the State has not waived its
immunity under K.S.A. 2015 Supp. 75-6103[a]."). The panel then determined its holdings
made it unnecessary to consider the State's arguments about two other tort claim act
provisions: K.S.A. 2018 Supp. 75-6104(c) (no liability for enforcement or failure to
enforce a law), and K.S.A. 2018 Supp. 75-6104(e) (no liability for discretionary
function). 53 Kan. App. 2d at 196.
Hill petitioned this court for review. The defendants did not cross-petition for
review as to the panel's three adverse holdings against them: (1) the KJRA and Civil
Service Act did not bar Hill's tort claim; (2) there is a public policy against retaliation for
exercising the Civil Service Act appeal right; and (3) there is no adequate alternative
remedy for the retaliation alleged by Hill.
To resolve the issues raised in Hill's appeal, we first agree with the Court of
Appeals and conclude there is subject matter jurisdiction despite defendants' KJRA and
Civil Service Act arguments. We then depart from the panel and conclude the district
court correctly denied the defendants' motions to dismiss because the common-law
retaliation tort may encompass a retaliatory job transfer by an employer. We also disagree
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with the panel and hold the defendants are not entitled to KTCA immunity. Finally, we
hold Hill raised genuine issues of material facts that preclude summary judgment.
SUBJECT MATTER JURISDICTION
Typically when a party does not cross-petition for review on an issue decided
adversely to that party by the Court of Appeals, we deem it as settled on review. Ullery v.
Othick, 304 Kan. 405, 415, 372 P.3d 1135 (2016); see also Supreme Court Rule
8.03(h)(1) (2018 Kan. S. Ct. R. 53). But the defendants' KJRA and Civil Service Act
arguments implicate subject matter jurisdiction, which we have an independent duty to
examine. Stechschulte v. Jennings, 297 Kan. 2, 29, 298 P.3d 1083 (2013). Accordingly,
we address this despite the defendants' silence on review.
Subject matter jurisdiction is a question of law subject to de novo review. Kingsley
v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009). Similarly, this
court exercises unlimited review over statutory interpretation and remedies exhaustion.
Siruta v. Siruta, 301 Kan. 757, 761, 348 P.3d 549 (2015) (statutory interpretation); Ryser
v. State, 295 Kan. 452, 457, 284 P.3d 337 (2012) (remedies exhaustion).
In Platt v. Kansas State University, 305 Kan. 122, Syl. ¶ 5, 379 P.3d 362 (2016),
the court held the KJRA "does not apply to the civil tort of retaliatory discharge against
an administrative agency." The Platt court noted the tort claim at issue was not predicated
on an "agency action" subject to exclusive KJRA review, relying on Lindenman v.
Umscheid, 255 Kan. 610, 875 P.2d 964 (1994), and its progeny. Platt, 305 Kan. at 132.
We view Lindenman and Platt as establishing a general rule that torts committed by a
state agency fall outside the KJRA's purview.
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We also note the Civil Service Board dismissed Hill's appeal because it lacked
statutory jurisdiction to consider a KHP trooper's duty-station transfer under K.S.A. 2018
Supp. 75-2929d(a)(1). In fact, "transfers" are mentioned elsewhere in the Civil Service
Act, suggesting those particular job actions are not within the terms "dismissal, demotion,
or suspension" that define the employment decisions subject to board review. See, e.g.,
K.S.A. 75-2944(a) ("Vacancies in positions shall be filled, so far as practicable, by
promotions or transfers of persons holding positions in the classified service and in
accordance with K.S.A. 75-2942, and amendments thereto." [Emphasis added.]); K.S.A.
75-2947(a) ("In a manner consistent with rules and regulations adopted by the secretary
of administration, transfers in the classified service may be made from a position in one
class to a position in another class when the duties and compensation are similar."
[Emphasis added.]).
We hold we have subject matter jurisdiction. Hill is suing in tort for common-law
job retaliation, and the Civil Service Act does not provide administrative review for
wrongful transfers or job assignments. Hill was not required to exhaust KJRA remedies.
See Platt, 305 Kan. 122, Syl. ¶ 5.
THE MOTIONS TO DISMISS
We now turn to the panel's conclusion that the district court erred by denying the
defendants' motions to dismiss based on the scope of the common-law tort and KTCA
sovereign immunity.
Standard of review
We review the ruling on a motion to dismiss de novo. Lozano v. Alvarez, 306 Kan.
421, 423, 394 P.3d 862 (2017); Wachter Management Co. v. Dexter & Chaney, Inc., 282
Kan. 365, 368, 144 P.3d 747 (2006). In doing so, we "'must accept the facts alleged by
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the plaintiff as true, along with any inferences that can reasonably be drawn therefrom'"
to determine whether "those facts and inferences state a claim based on plaintiff's theory
or any other possible theory." Platt, 305 Kan. at 126 (quoting Cohen v. Battaglia, 296
Kan. 542, 546, 293 P.3d 752 [2013]); see also Campbell v. Husky Hogs, 292 Kan. 225,
227, 255 P.3d 1 (2011); Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001) (when
reviewing a motion to dismiss, a court views the petition in a light most favorable to the
plaintiff to determine whether the petition states any valid claim for relief).
Job placement may constitute an actionable retaliation claim.
Historically, Kansas adheres to the employment-at-will doctrine, "'which holds
that employees and employers may terminate an employment relationship at any time for
any reason, unless there is an express or implied contract governing the employment's
duration.'" Lumry v. State, 305 Kan. 545, 562, 385 P.3d 479 (2016) (quoting Husky Hogs,
292 Kan. at 227). But that general at-will principle has exceptions.
Some exceptions are statutory, such as prohibiting terminations based on race,
gender, or disability. See K.S.A. 44-1009 (unlawful for employer to terminate or
otherwise discriminate against a person because of race, religion, color, sex, disability,
national origin, or ancestry or to commit other discriminatory employment practices
listed in the statute). Still others are noted in our caselaw founded upon articulated public
policy grounds. See Platt, 305 Kan. at 136 ("public policy" refers to the "principle which
holds no citizen can lawfully do that which injures the public good"). "Kansas courts
permit the common-law tort of retaliatory discharge as a limited exception to the at-will
employment doctrine when it is necessary to protect a strongly held state public policy
from being undermined." Husky Hogs, 292 Kan. at 229; see also Lumry, 305 Kan. at 564;
Platt, 305 Kan. at 133; Hysten v. Burlington Northern Santa Fe Ry. Co., 277 Kan. 551,
Syl. ¶ 1, 108 P.3d 437 (2004). The court has further permitted common-law torts for job
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actions short of dismissal but equally damaging to the public policy at stake. See
Brigham v. Dillon Companies, Inc., 262 Kan. 12, 20, 935 P.2d 1054 (1997) (recognizing
"a cause of action for retaliatory demotion" because it is "a necessary and logical
extension of the cause of action for retaliatory discharge").
This court previously recognized a public policy against retaliation for: (1) filing
a Kansas Workers Compensation Act claim, (2) filing a Federal Employers Liability Act
claim, (3) whistleblowing, (4) exercising a public employee's First Amendment free
speech rights regarding a matter of public concern, (5) filing a Kansas Wage Payment
Act claim, and (6) invoking rights under the Fair Labor Standards Act or Kansas
Minimum Wage and Maximum Hours Law. Pfeifer v. Federal Express Corporation, 297
Kan. 547, 554-56, 304 P.3d 1226 (2013) (listing 1-5); Husky Hogs, 292 Kan. at 225, 228,
237 (listing 1-4 and, for the first time, recognizing 5); Lumry, 305 Kan. at 547
(recognizing 6). And we have described three scenarios when determining if a public
policy exception to at-will employment exists:
"(1) The legislature has clearly declared the state's public policy; (2) the legislature
enacted statutory provisions from which public policy may reasonably be implied, even
though it is not directly declared; and (3) the legislature has neither made a clear
statement of public policy nor can it be reasonably implied." Husky Hogs, 292 Kan. at
230.
This court has explained that recognition of such claims
"has rested on a principle of deterrence against employer reprisal for an employee's
exercise of a legal right. And in those instances in which an employee is exercising a
statutory right created by the legislature, we have noted that such deterrence serves not
only the employee's interests but also those of the state and its people. This is because
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statutory rights exist only because of the legislature's determination that such a right is in
the public interest." Pfeifer, 297 Kan. at 556.
The panel held there is an anti-retaliation public policy declared in K.S.A. 2018
Supp. 75-2949(g), which states: "No employee shall be disciplined or discriminated
against in any way because of the employee's proper use of the appeal procedure."
(Emphasis added.) See Hill, 53 Kan. App. 2d at 187. The defendants do not dispute that
K.S.A. 2018 Supp. 75-2949(g) declares a legislatively stated public policy, and they have
not cross-petitioned for review of that holding. Nor have they cross-petitioned for review
of the panel's further holding that there is no adequate alternative remedy for the
retaliation Hill alleged. See Husky Hogs, 292 Kan. at 236 (under the alternative remedies
doctrine, an adequate alternative statutory remedy may be substituted for a state
retaliation claim, precluding the common-law remedy). So to that extent these issues are
settled for purposes of our review. See Supreme Court Rule 8.03(h)(1) (2018 Kan. S. Ct.
R. 56) ("[T]he issues before the Supreme Court include all issues properly before the
Court of Appeals which the petition for review or cross-petition allege were decided
erroneously by the Court of Appeals."); Ullery, 304 Kan. at 415.
The real issue is what retaliatory employment actions subject a civil service
employer to tort liability. Hill alleges his transfer was a "retaliatory adverse employment
action" violating the public policy set forth in the statute. He analogizes this to Brigham,
which recognized the tort for retaliatory demotion, and asks that Brigham's reasoning be
extended to adverse job actions short of demotion.
The defendants counter that the policy is enforceable only as directed by the
Legislature through the misdemeanor penalty provision in K.S.A. 75-2957 (providing
willful violation of Civil Service Act constitutes misdemeanor punishable by fine and
imprisonment). They distinguish Brigham because a job "assignment," as they
16
characterize what happened to Hill, is not a harmful employment action. The defendants
express fear that expanding Brigham beyond demotions opens the litigation floodgates
over minor personnel decisions. We disagree with the defendants and the narrow
formulation of the harm required to constitute tortious conduct that the panel adopted.
Kansas first recognized common-law tort actions by employees for their
employers' public policy violations as actions to redress "wrongful discharges in violation
of state public policy clearly declared by the legislature or by the courts." Coleman v.
Safeway Stores, Inc., 242 Kan. 804, 815, 752 P.2d 645 (1988), disproved of on other
grounds by Gonzalez-Centeno v. North Central Kansas Regional Juvenile Detention
Facility, 278 Kan. 427, Syl. ¶ 4, 101 P.3d 1170 (2004); see also Palmer v. Brown, 242
Kan. 893, 900, 752 P.2d 685 (1988) ("[T]ermination of an employee in retaliation for the
good faith reporting of a serious infraction of such rules, regulations, or the law by a co-
worker or an employer . . . is an actionable tort."). Subsequently, the court in Brigham
expanded the tort's scope to redress public policy violations short of wrongful
termination, when it permitted an employee to pursue a tort claim for retaliatory
demotion. Brigham, 262 Kan. at 20. The rationale for that leads to our conclusion today
that a job transfer like the one Hill experienced may constitute an actionable tort.
In Brigham, the plaintiff sued his former employer for wrongfully demoting him
to a new job with less pay in retaliation for filing a workers compensation claim. On
appeal, the court considered whether retaliatory demotion could be recognized as a cause
of action. The court held it should, reasoning such conduct carried a similar coercive
effect to retaliatory discharge. As the court explained,
"The employers' violation of public policy and the resulting coercive effect on
the employee is the same in both situations. The loss or damage to the demoted employee
differs in degree only. We do not share the employers' concern that a torrent of litigation
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of insubstantial employment matters would follow in the wake of our recognition of a
cause of action for retaliatory demotion and, even if we did, it does not constitute a valid
reason for denying recognition of an otherwise justified cause of action.
"We conclude that the recognition of a cause of action for retaliatory demotion is
a necessary and logical extension of the cause of action for retaliatory discharge. To
conclude otherwise would be to repudiate this court's recognition of a cause of action for
retaliatory discharge. The obvious message would be for employers to demote rather
than discharge employees in retaliation for filing a workers compensation claim or
whistleblowing. Thus, employers could negate this court's decisions recognizing wrongful
or retaliatory discharge by taking actions falling short of actual discharge." (Emphases
added.) 262 Kan. at 20.
By contrast, in the Illinois Supreme Court's plurality decision in Zimmerman v.
Buchheit of Sparta, Inc., 164 Ill. 2d 29, 39, 645 N.E.2d 877 (1994), rejecting the
expansion of the common-law retaliation tort to include any action short of retaliatory
discharge, the court reasoned,
"We decline plaintiff's request to extrapolate from the rationale of [caselaw
recognizing a common-law retaliatory discharge tort] a cause of action predicated on
retaliatory demotion. [The caselaw] created an exception to the employment-at-will
doctrine. In our view, adoption of plaintiff's argument would replace the well-developed
element of discharge with a new, ill-defined, and potentially all-encompassing concept of
retaliatory conduct or discrimination. The courts then would be called upon to become
increasingly involved in the resolution of workplace disputes which center on employer
conduct that heretofore has not been actionable at common law or by statute. Although
the term 'demotion' may appear amenable to clear definition, many questions arise: Is a
demotion in title or status, but not salary, actionable? Could a transfer from one
department to another be considered a demotion? Would it be fair to characterize as a
demotion a significant increase in an employee's duties without an increase in salary? It is
plaintiff's burden, in urging this court to create new rights of action or expand existing
ones, to persuade the court of the need for such new or expanded rights."
18
In view of these uncertainties, the Zimmerman court declined to "open broad new
avenues of litigation for other, less defined types of retaliatory conduct" than discharge
"as an exception to the at-will employment doctrine." 164 Ill. 2d at 45-46. But as
discussed, our court in Brigham adopted a different approach, extending the tort to
include both the discharge and the arguably less harmful demotion that mimicked
discharge's coercive effect.
Admittedly, the Kansas caselaw to date deals with terminations and demotions,
but this is because those happened to be the facts presented—not because they
represented some minimum threshold of harm necessary to invoke a cause of action. The
Husky Hogs court, in particular, noted our history of retaliation cases was about ensuring
public policy not be undermined. Husky Hogs, 292 Kan. at 229 ("The case law makes it
obvious that Kansas courts permit the common-law tort of retaliatory discharge as a
limited exception to the at-will employment doctrine when it is necessary to protect a
strongly held state public policy from being undermined."). And because under Brigham
the requisite harm is coercive effect, we are confronted in this case with how to determine
whether an employment action is sufficiently coercive to undermine the public policy
goal and give rise to tort liability.
For that answer, we turn to the United States Supreme Court's decision in
Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 56, 126 S. Ct. 2405, 165 L.
Ed. 2d 345 (2006). There, the plaintiff claimed her job duties were reassigned in
retaliation for her gender discrimination complaint. Considering how harmful an adverse
employment action must be to be actionable for Title VII's anti-retaliation provision, the
Court held:
19
"[T]he provision covers those (and only those) employer actions that would have been
materially adverse to a reasonable employee or job applicant. In the present context that
means that the employer's actions must be harmful to the point that they could well
dissuade a reasonable worker from making or supporting a charge of discrimination."
(Emphasis added.) 548 U.S. at 57.
The Court judged harm using an objective standard based on a reasonable
employee and the coercive effect the employer's action would have on such a person. The
Court explained,
"[T]he significance of any given act of retaliation will often depend upon the particular
circumstances. Context matters. 'The real social impact of workplace behavior often
depends on a constellation of surrounding circumstances, expectations, and relationships
which are not fully captured by a simple recitation of the words used or the physical acts
performed.' A schedule change in an employee's work schedule may make little
difference to many workers, but may matter enormously to a young mother with school-
age children. A supervisor's refusal to invite an employee to lunch is normally trivial, a
nonactionable petty slight. But to retaliate by excluding an employee from a weekly
training lunch that contributes significantly to the employee's professional advancement
might well deter a reasonable employee from complaining about discrimination. Hence,
a legal standard that speaks in general terms rather than specific prohibited acts is
preferable, for an 'act that would be immaterial in some situations is material in others.
[Citations omitted.]'" (Emphasis added.) 548 U.S. at 69.
Accordingly, the panel erred by holding Hill could not premise a claim for relief
on an employment action short of firing him, reducing his wages or benefits, or
diminishing his workplace status. We hold a common-law retaliation claim may be
premised on any employment action that is materially adverse to a reasonable employee,
i.e., "harmful to the point that [it] could well dissuade a reasonable worker from"
exercising the worker's rights under the Civil Service Act. White, 548 U.S. at 57.
20
The KTCA does not immunize defendants.
As previously noted, our holding on the retaliation tort's scope also resolves the
immunity issue against the defendants. "Liability is the rule, and immunity is the
exception for governmental entities sued under the KTCA." Keiswetter v. State, 304 Kan.
362, 366, 373 P.3d 803 (2016); see also Thomas v. Board of Shawnee County Comm'rs,
293 Kan. 208, 233, 262 P.3d 336 (2011). Under the Kansas Tort Claims Act,
"Subject to the limitations of this act, each governmental entity shall be liable for
damages caused by the negligent or wrongful act or omission of any of its employees
while acting within the scope of their employment under circumstances where the
governmental entity, if a private person, would be liable under the laws of this state."
K.S.A. 2018 Supp. 75-6103(a).
Stated differently, "[a] governmental entity can be found liable for the negligent or
wrongful act or omission of any of its employees while acting within the scope of their
employment only if (1) a private person could be liable under the same circumstances and
(2) no statutory exception to liability applies." Adams v. Board of Sedgwick County
Comm'rs, 289 Kan. 577, 585, 214 P.3d 1173 (2009); see also Prager v. Kansas Dept. of
Revenue, 271 Kan. 1, 34, 20 P.3d 39 (2001) ("The KTCA creates no new cause of action
beyond what is already available under Kansas law, and there can be no greater liability
under the KTCA than a private person would have under Kansas law.").
The panel held there could be no governmental liability because Hill's claim fails
the first prong, i.e., "a private person could not be liable for a retaliatory job placement"
because reassignment is not actionable against any employer. Hill, 53 Kan. App. 2d at
196; see Prager, 271 Kan. at 34 (sovereign immunity not waived for alleged
constitutional tort of depriving free speech because private persons cannot be liable for
21
constitutional torts). But as we have held, a private person can be liable in tort for a
retaliatory job placement in violation of a recognized state public policy so this rationale
fails. See Thomas, 293 Kan. at 233 (because private person could be liable for
negligence, court was required to examine whether exceptions to governmental liability
applied).
The dissent adopts a different ground than the panel for arguing Hill's claim fails
the first prong. The dissent argues: "There is no public policy applicable to private
employers embedded in K.S.A. 2018 Supp. 75-2949(g) [of the Civil Service Act].
Therefore, a private employer cannot be subject to this tort." Slip op. at 42. But this
avoids the relevant inquiry, i.e., assuming a private employer did retaliate against an
employee for appealing, would it be liable for doing so? See K.S.A. 2018 Supp. 75-
6103(a) (providing governmental entity liable "under circumstances where the
governmental entity, if a private person, would be liable under the laws of this state").
And the answer to that inquiry is certainly yes because we have previously recognized
private-employer liability for retaliatory actions similarly injurious to public policy. See
Pfeifer, 297 Kan. at 555-56; Husky Hogs, 292 Kan. at 225, 228; Lumry, 305 Kan. at 547.
The dissent's notion that the KTCA preserves governmental immunity in this case
simply because the specific facts alleged could not arise in private employment has been
rejected. Similar to the KTCA, the Federal Tort Claims Act supplies federal courts with
jurisdiction over suits against the United States that arise from wrongful conduct "under
circumstances where the United States, if a private person, would be liable . . . in
accordance with the law of the place where the act or omission occurred." 28 U.S.C.
§ 1346(b)(1) (2012); see 28 U.S.C. § 2674 (2012) ("The United States shall be liable,
respecting the provisions of this title relating to tort claims, in the same manner and to the
same extent as a private individual under like circumstances, but shall not be liable for
interest prior to judgment or for punitive damages."). In Indian Towing Co. v. United
22
States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955), the United States argued it could
not be liable for negligently operating a lighthouse under the FTCA because private
persons do not operate lighthouses. The Court disagreed, reasoning,
"[I]f the United States were to permit the operation of private lighthouses—not at all
inconceivable—the Government's basis of differentiation would be gone and the
negligence charged in this case would be actionable. Yet there would be no change in the
character of the Government's activity in the places where it operated a lighthouse, and
we would be attributing bizarre motives to Congress were we to hold that it was
predicating liability on such a completely fortuitous circumstance—the presence or
absence of identical private activity." 350 U.S. at 66-67.
The dissent's limited view of the sovereign immunity waiver would also render
unnecessary many exceptions to liability expressly carved out by the Legislature in
K.S.A. 2018 Supp. 75-6104. And we generally presume our Legislature does not intend
to enact useless or meaningless legislation. Cochran v. State Dept. of Ag., Div. of Water
Resources, 291 Kan. 898, 903, 249 P.3d 434 (2011); see K.S.A. 2018 Supp. 75-6104(a)-
(c), (f) (providing exceptions to liability for damages arising from legislative, judicial,
and executive functions of government such as enforcement or failure to enforce laws,
and from tax assessment or collection); K.S.A. 2018 Supp. 75-6104(n) (providing
exception to liability for damages arising from failure to provide, or method of providing,
police or fire protection); K.S.A. 2018 Supp. 75-6104(s) (excluding liability for damage
claims arising from state-run vending machines along interstate highways).
For example, K.S.A. 2018 Supp. 75-6104(h) excludes governmental liability for
"the malfunction, destruction or unauthorized removal of any traffic or road sign, signal
or warning device unless it is not corrected by the governmental entity responsible within
a reasonable time after actual or constructive notice of such malfunction, destruction or
removal" and provides that nothing in the subsection creates "liability arising from the act
23
or omission of any governmental entity in placing or removing any of the above signs,
signals or warning devices when such placement or removal is the result of a
discretionary act of the governmental entity." (Emphasis added.) Yet no private person
could ever be liable for failing to correct a missing, destroyed, or malfunctioning sign,
signal, or warning device, upon a public roadway, or for failing to place or remove a
nondiscretionary one, because these acts lie exclusively within the government's domain.
See K.S.A. 8-1512(a) ("No person shall place . . . upon or in view of any highway any
unauthorized sign . . . which purports to be or is an imitation of or resembles an official
traffic-control device . . . ."); see also K.S.A. 8-1442 (defining "[o]fficial traffic-control
devices" as "all signs signals, markings, and devices . . . placed or erected by authority of
a public body or official having jurisdiction for the purpose of regulating, warning, or
guiding traffic").
Hill alleged defendants took a materially adverse employment action against him
contrary to public policy. Under these circumstances defendants, if private persons,
would be liable under the laws of this state. See K.S.A. 2018 Supp. 75-6103(a); Brigham,
262 Kan. at 19 ("The linchpin of the tort for retaliatory demotion is a violation of public
policy."). Put another way, generally applicable negligence law can make a governmental
entity liable for carelessly performing an act that is exclusively governmental in character
and which no private person could perform. See Patterson, 307 Kan. at 633 ("When a
negligence claim is predicated on failure to place a traffic-control device 'the
discretionary element in that decision is crucial' to determining whether the governmental
entity can be liable."); see also Indian Towing, 350 U.S. at 66-67. Likewise, the generally
applicable law of employment-related torts might make a governmental entity liable for
breaching a legal duty directing its conduct within its own employment relationships,
even if the act that constitutes the breach could only occur in the context of government
employment.
24
The panel recognized this and applied the appropriate inquiry. But in doing so, it
incorrectly resolved the immunity question on the broader basis that Hill did not allege an
actionable tort of job retaliation, i.e., Hill based his claim on job placement rather than
firing or demotion. Hill, 53 Kan. App. 2d at 196 ("Hill has not cited any authority where
a private person was liable for a common-law tort of retaliatory job placement."
[Emphasis added.]). And because its analysis ended at that early point, it did not address
the defendants' arguments on the second prong that they are immune under the
discretionary function and law enforcement exceptions to the State's sovereign immunity
waiver. But those arguments are unavailing as well. The defendants are not entitled to
immunity under the exceptions they raised in the Court of Appeals.
To begin with, the defendants waived or abandoned any claim to KTCA immunity
under exceptions for damages resulting from "enforcement of or failure to enforce a law"
and "failure to provide, or the method of providing, police or fire protection." See K.S.A.
2018 Supp. 75-6104(c), (n). They only briefly raised these exceptions and cited no
relevant caselaw to support their arguments. A defendant abandons an argument for
application of a particular exception to liability under the KTCA by failing to adequately
argue the point. See Thomas, 293 Kan. at 233 (holding defendants abandoned argument
for application of personnel policy exception under the KTCA that was raised but not
supported by pertinent authority; noting government bears the burden to establish KTCA
exception); see also McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15,
61 P.3d 68 (2002) ("'A litigant who fails to press a point by supporting it with pertinent
authority, or by showing why it is sound despite a lack of supporting authority or in the
face of contrary authority, forfeits the point.'").
This leaves the KTCA's discretionary function exception as the remaining claimed
route to governmental immunity. But the defendants' argument fails here as well. Under
the KTCA,
25
"A governmental entity or an employee acting within the scope of the employee's
employment shall not be liable for damages resulting from:
....
"(e) any claim based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a governmental entity or
employee, whether or not the discretion is abused and regardless of the level of discretion
involved." K.S.A. 2018 Supp. 75-6104.
The term "discretionary function or duty" is not defined in the KTCA, so this court
looks "foremost to the nature and quality of the discretion exercised" to determine
whether a function or duty is discretionary. Soto v. City of Bonner Springs, 291 Kan. 73,
79, 238 P.3d 278 (2010). The mere application of judgment is not enough. 291 Kan. at
79.
Generally, the discretionary function exception is inapplicable when there is a
"'clearly defined mandatory duty or guideline,'" which can arise from statutes, caselaw, or
agency directives. 291 Kan. at 80 (quoting Nero v. Kansas State University, 253 Kan.
567, 585, 861 P.2d 768 [1993]). Compare Cansler v. State, 234 Kan. 554, 570, 675 P.2d
57 (1984) (the State's duties to confine prisoners and warn the public when they escape
were imposed by law and therefore nondiscretionary), with Patterson, 307 Kan. at 638
(discretionary function immunity for road sign decisions barred suit against county when
applicable guidelines did not mandate placement of allegedly missing road sign under
facts alleged by defendant). But this court has cautioned that "'we have not held that the
existence of any duty deprives the State of immunity under the discretionary function
exception.'" Thomas, 293 Kan. at 236 (quoting Schmidt v. HTG, Inc., 265 Kan. 372, 392,
961 P.2d 677 [1998]).
26
The defendants contend that because there was no mandatory duty or guideline
governing how they placed Hill, they had unreviewable discretion to make the
assignment as they saw fit, which must fall under discretionary function immunity's
protective umbrella. We disagree. Their trooper assignment discretion is limited by a
clearly defined mandatory duty: "No employee shall be disciplined or discriminated
against in any way because of the employee's proper use of the appeal procedure."
(Emphasis added.) K.S.A. 2018 Supp. 75-2949(g).
Admittedly, the term "discriminated against" in K.S.A. 2018 Supp. 75-2949(g) is
not statutorily defined. But that term naturally encompasses an array of acts or omissions
in the employer-employee context. For example, in Londerholm v. Unified School
District No. 500, 199 Kan. 312, 331, 430 P.2d 188 (1967), the court looked to Webster's
Third New International Dictionary to define "discriminate" as "'to . . . distinguish
between . . . to make a difference in treatment or favor on a class or categorical basis in
disregard of individual merit,'" citing Wimberly v. Ga. So. & Fla. Ry. Co., 5 Ga. App.
263, 266, 63 S.E. 29 (1908), to add to its meaning, "'treating one differently from
another.'" See Black's Law Dictionary 566 (10th ed. 2014) (defining discrimination as
"[d]ifferential treatment; esp., a failure to treat all persons equally when no reasonable
distinction can be found between those favored and those not favored"). Londerholm
rejected the Attorney General's claim that school teachers could be involuntarily
transferred within a school district based on a teacher's race to promote racial integration.
Londerholm, 199 Kan. at 331.
The statutory language easily leads to the conclusion that an employer subject to
K.S.A. 2018 Supp. 75-2949(g) may not discriminate against an employee because the
employee exercised the appeal right under the Civil Service Act. So relocating an
employee when motivated by a desire to retaliate against that employee for invoking the
27
statutorily protected right is a difference in treatment encompassed within the meaning of
"discriminated against" as used in K.S.A. 2018 Supp. 75-2949(g).
The Oklahoma Supreme Court held that Oklahoma's discretionary function
exception to governmental tort liability did not immunize a government employer in a
retaliatory discharge action based on allegedly discharging employees for pursuing
workers compensation claims. Gunn v. Consolidated Rural Water & Sewer Dist. No. 1,
Jefferson County, 839 P.2d 1345 (Okla. 1992). It reasoned,
"Implicit in a claim for retaliatory discharge is conduct in breach of that which is legally
allowable. It charges the commission of an act that is the very antithesis of permissible
conduct—one that by its very nature negates any notion of discretion or any choice
among different courses of action. Discharging an employee contrary to the applicable
statute is not an exercise of discretionary function within the meaning of [the Oklahoma
Tort Claims Act]. It is a breach cognizable by law. When a statute restricts permissible
conduct in managing personnel, discretion, which implies freedom of action, is ipso facto
withdrawn." 839 P.2d at 1350.
The involuntary transfer in Hill's case, if motivated by retaliatory intent as alleged,
would constitute prohibited discrimination within the meaning of K.S.A. 2018 Supp. 75-
2949(g). Accordingly, despite the defendants' general discretion over personnel decisions
such as trooper transfers, the conduct alleged falls outside that discretion's boundary. In
other words, the defendants had a duty not to act illegally in the manner Hill alleges. The
discretionary function exception does not immunize them from liability for this claim.
MOTION FOR SUMMARY JUDGMENT
Having concluded that an employment retaliation claim may be premised on
coercive employer conduct in addition to dismissal and demotion, such as a job
28
reassignment under the circumstances already discussed, we now address whether Hill's
summary judgment evidence raised genuine issues of material facts regarding the adverse
job action, causation, and pretext elements both lower courts found lacking.
Standard of review
We review a district court's grant of summary judgment de novo and read the
record under the same rules applicable to the district court. Superior Boiler Works, Inc. v.
Kimball, 292 Kan. 885, 890, 259 P.3d 676 (2011); Dominguez v. Davidson, 266 Kan.
926, 929, 974 P.2d 112 (1999).
"'"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and where we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied."'" Armstrong v. Bromley Quarry & Asphalt, Inc., 305 Kan. 16, 24, 378
P.3d 1090 (2016).
To the extent "material facts are uncontroverted, an appellate court reviews
summary judgment de novo." Superior Boiler Works, Inc., 292 Kan. at 890 (citing
Central Natural Resources v. Davis Operating Co., 288 Kan. 234, 240, 201 P.3d 680[2009]; Troutman v. Curtis, 286 Kan. 452, Syl. ¶ 1, 185 P.3d 930 [2008]).
29
Genuine issues of material facts preclude summary judgment.
Kansas adopts a burden-shifting framework for common-law retaliation cases.
Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1276, 38 P.3d 679 (2002). Under that
framework, to survive summary judgment, an employee must first make out a prima facie
case. Then, the burden shifts to an employer to produce a legitimate, nondiscriminatory
reason for the challenged employment action. If the employer succeeds, the employee
"must assert specific facts establishing a triable issue as to whether the employer's reason
. . . is a mere cover-up or pretext" for retaliation. 272 Kan. at 1276.
The lower courts held Hill's claim could not surmount the burden-shifting
framework, because in their view Hill failed to make out a prima facie case and failed to
show defendants' proffered nondiscriminatory reason for the challenged employment
action was a pretext. On each basis, we disagree.
1. Hill made out a prima facie case.
To advance a prima facie case of tortious retaliation for pursuing the Civil Service
Act appeal right, the employee must show (1) he or she, as a classified employee in the
civil service, appealed to the board from a dismissal, demotion, or suspension; (2) the
employer knew of the appeal; (3) the employer subjected the employee to a materially
adverse job action, i.e., an employment action harmful to the point it could dissuade a
reasonable worker from exercising the appeal rights under the Civil Service Act; and (4)
a causal connection existed between the protected activity and the subsequent
employment action. See Rebarchek v. Farmers Co-op Elevator, 272 Kan. 546, 554, 35
P.3d 892 (2001); see also Husky Hogs, 292 Kan. at 235; cf. White, 548 U.S. at 68-69
(setting out objective standard for harm necessary to render retaliatory employer conduct
actionable).
30
There is no dispute Hill appealed his initial dismissal to the Civil Service Board
and that the defendants knew about this. But the lower courts concluded Hill failed to
make out the remaining, third and fourth elements.
A. A genuine issue of a material fact exists as to whether transfer was harmful to the
point it could dissuade a reasonable worker from exercising the appeal rights under the
Civil Service Act.
The third element of Hill's prima facie case is that defendants subjected him to a
materially adverse employment action, i.e., one "harmful to the point that [it] could well
dissuade a reasonable worker from" exercising the worker's rights under the Civil Service
Act. White, 548 U.S. at 57. For guidance on what facts are considered to find this
standard is met by an employment action short of termination or demotion, we turn to
federal caselaw applying the White test. Under White, "[w]hether a particular
reassignment is materially adverse depends upon the circumstances of the particular case,
and 'should be judged from the perspective of a reasonable person in the plaintiff's
position, considering "all the circumstances."'" 548 U.S. at 71.
It is undisputed Hill's transfer did not diminish his compensation or job duties. But
actions short of diminished responsibilities have been viewed as sufficient to avoid
summary judgment, although "'a mere inconvenience or an alteration of job
responsibilities[ ]' will not suffice." Annett v. University of Kansas, 371 F.3d 1233, 1239
(10th Cir. 2004); see Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996)
("While adverse employment actions extend beyond readily quantifiable losses, not
everything that makes an employee unhappy is an actionable adverse action. Otherwise,
minor and even trivial employment actions that 'an irritable, chip-on-the-shoulder
employee did not like would form the basis of a discrimination suit.'").
31
For example, a retaliation claim pursued by a police officer who was laterally
reassigned from the detective bureau to road patrol shortly after lodging a discrimination
complaint survived summary judgment when the officer deemed this to be an adverse job
action and argued the new assignment was "less desirable." Hampton v. Borough of
Tinton Falls Police Department, 98 F.3d 107, 116 (3d Cir. 1996). A corrections unit
manager was transferred to a unit "'nobody wanted to go to'" from one that was
considered "especially desirable," and this presented a triable fact issue. McKinnon v.
Gonzales, 642 F. Supp. 2d 410, 434 (D.N.J. 2009). And one federal district court
concluded that "[a] reasonable employee might well be dissuaded from complaining
about or reporting prohibited harassment if she believed that she risked being transferred
away from the school in which she had worked—and the co-workers and staff with
whom she had worked—for more than four years." Williams v. City of New York, No. 99
CV 2697, 2006 WL 2668211, at *21 (E.D.N.Y. 2006).
In Hill's case, he adduced enough evidence to create a jury question whether his
transfer would dissuade a reasonable person in his position from asserting the Civil
Service Act appeal right, even though his pay and job duties were essentially the same in
Troops E and H. Hill's summary judgment evidence supports reasonable inferences that
the transfer was more than just a "minor" step by the KHP or a "trivial employment
action" that only an "irritable, chip-on-the-shoulder employee" would bristle at. Cf.
MacKenzie v. City and County of Denver, 414 F.3d 1266, 1279 (10th Cir. 2005) (giving
employee the "silent treatment" and moving employee's desk 45 degrees not actionable
retaliation); Sanchez v. Denver Public Schools, 164 F.3d 527, 532 (10th Cir. 1998)
(holding teacher's reassignment to district school within same district, causing commute
to increase from 5-7 minutes to 30-40 minutes, was not adverse employment action); see
also Spring v. Sheboygan Area School Dist., 865 F.2d 883 (7th Cir. 1989) (holding school
principal's transfer to dual principalship of different schools within district along with
32
new employment contract and merit pay increase not a materially adverse change in
terms and conditions of employment). More than merely increasing Hill's daily commute,
the relocation required him to uproot and move approximately 400 miles from his home.
And the evidence demonstrates the KHP avoids such involuntary transfers because of
their tendency to disrupt troopers' personal lives. Moreover, the facts viewed in the light
most favorable to Hill demonstrate Troop E is an objectively undesirable assignment to
be transferred into as compared with other duty stations. Troop E is remote and the KHP
has had difficulty retaining troopers there.
The evidence also shows more than Hill's personal preference against being placed
in Troop E. Garcia admitted it is a greater challenge to keep troopers in the western part
of the state "than perhaps anywhere else in the state." He explained this is because many
troopers come from other parts of the state; some troopers have spouses who would have
to leave jobs to go there; and the way of life is different than in metropolitan areas and
that "some people just would prefer not to be out there." And KHP Major John Eichkorn,
who participated in the decision to station Hill in Troop E upon his reinstatement, said,
"Notoriously, through the years, we've had a historic shortage of people in Western
Kansas, mainly because we see a lot of people want to move from Western Kansas back
to eastern Kansas."
These facts present a triable question.
B. A genuine issue of a material fact exists as to whether the Civil Service Act appeal
caused the transfer.
The fourth element of the prima facie retaliation case, i.e., causation, requires a
demonstration "that a causal connection existed between the protected activity or injury"
and the adverse employment action. Rebarchek, 272 Kan. at 554-55. The panel
33
acknowledged the short time between Hill's reinstatement and the transfer favored Hill's
causation case, but it reasoned temporal proximity was a weak "post hoc" argument that
was ultimately insufficient to raise an inference of causation. Hill, 53 Kan. App. 2d at
204. We disagree with this categorical conclusion that temporal proximity can never
alone raise a causation inference. The fact the alleged retaliatory conduct occurred at the
defendants' first opportunity to act against Hill, taken in context with the other
circumstances, is sufficient to satisfy the causation element of Hill's prima facie case. "A
claimant's 'prima facie case is not an onerous burden under the . . . burden-shifting
scheme.'" Rebarchek, 272 Kan. at 557.
Temporal proximity is the beginning point although it is not the sole means of
proving causal connection. When the proximity between the protected action and the
alleged retaliation is "'very close,'" timing alone can be sufficient to make out a prima
facie causation case; otherwise, the plaintiff must come forward with additional evidence
to establish causal connection. 272 Kan. at 555; 8 Larson on Employment Discrimination
§ 129.05 (2018). Evidence that the retaliation occurred the day the defendant learned
about the employee's protected action has been held sufficient to supply evidence of
causal connection. Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 525 (6th Cir.
2008). Even a gap of four to six weeks has been held close enough to raise the inference.
Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171-72 (10th Cir. 2006).
In Ford v. General Motors Corp., 305 F.3d 545, 554-55 (6th Cir. 2002), a five-
month delay did not destroy the causal connection inference generally raised by the very
close temporal connection between filing a race discrimination claim against a supervisor
and that supervisor's alleged retaliation. The employee voluntarily transferred from the
supervisor's department about a month after filing his complaint. When he was placed
back under the supervisor's direction five months after filing the claim, the supervisor
34
imposed increased work on him, subjected his performance to heightened scrutiny, and
threatened to fire him. The court reasoned,
"Although 'temporal proximity alone will not support an inference in the face of
compelling evidence' to the contrary, 'the proximity in time between protected activity
and adverse employment action may give rise to an inference of a causal connection.'
Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir.1987) (citations omitted).
"Plaintiff's measure of time is more appropriate in this situation, as the adverse
action began almost immediately after Reiser resumed his supervision of Ford in
Department 71. Previously, Ford was under Bricino's supervision as a porter. Reiser was
aware that Ford had long complained of a racially hostile workplace and knew that
Plaintiff had filed a complaint with the EEOC. A trier of fact could impute a retaliatory
motive to Reiser, in as much as he supervised Ford at the time of the EEOC filing and did
nothing to defuse the racial tension in Department 71 that led to Ford's suspension. Once
under Reiser's supervision again, Ford claims that his workload increased, that he was
subjected to heightened scrutiny, and that he was threatened with termination if his
struggles at the drive-off continued. Such facts are enough to show a causal connection,
for purposes of a prima facie case." Ford, 305 F.3d at 554-55.
The same logic leads to the conclusion that Hill established a prima facie case for
causation. In implementing the Civil Service Board's reinstatement order, Garcia
"transferred" Hill to Troop E. And since Garcia and the KHP were effecting the Civil
Service Board order, they plainly knew Hill appealed the initial personnel decision. The
alleged retaliatory act occurred at the defendants' first chance to retaliate, and this was
inextricably linked to the unprecedented reinstatement. Under these circumstances, a jury
could impute retaliatory motive based on the nearly instantaneous temporal connection
between the reinstatement order and the transfer.
35
2. A genuine issue of a material fact exists as to whether the nondiscriminatory reason
for transfer was pretext.
In addition to establishing a prima facie case, to survive the burden-shifting
framework when an employer proffers a legitimate, nondiscriminatory reason for an
adverse job action, an employee must show that reason is pretext. To raise a triable issue
of whether the employer's reason is mere pretext, the employee's evidence may include
that the employee was treated differently than others similarly situated; the employer's
treatment of the employee before the protected action; and the employer's response to the
protected action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05, 93 S.
Ct. 1817, 36 L. Ed. 2d 668 (1973).
In Rebarchek, 272 Kan. 546, an employee successfully raised a genuine issue of
whether his poor job performance was a pretext for discharging him in retaliation for
filing a workers compensation claim. Defendants claimed the plaintiff failed to maintain
the condition of grain stored at the storage facility where the plaintiff was a manager. But
there was evidence the defendants already knew how much grain was out-of-condition
when they reprimanded him several weeks before the firing, and just days before a
surgical procedure related to his compensation claim. There was also evidence other
employees with similar performance deficiencies were not terminated.
In Hill's case, the defendants proffered a legitimate, nondiscriminatory reason for
Hill's transfer: Troop E's extreme manpower shortage. Hill presented evidence showing
that reason is a pretext, including proof that no trooper was subjected to an involuntary
duty station transfer for at least four decades. The defendants and the panel make much of
the fact that "Hill was the only known trooper to have successfully appealed his dismissal
to the [board]," so the KHP was "dealing with an unprecedented situation." Hill, 53 Kan.
App. 2d at 205. According to the panel, "because the sum of Hill's predicament is unique,
36
Hill must come up with other reasons why his placement in Troop E was retaliatory." 53
Kan. App. 2d at 206. But this misses the point. It is this very uniqueness that raises the
inference of pretext—the only reason Hill was treated differently than other troopers was
that he was returning from the KHP's attempt to wrongfully terminate his employment as
demonstrated by his successful Civil Service Act appeal.
The defendants concede they treated Hill as a new hire—instead of as an
experienced trooper—and transferred him to a different region after he secured
reinstatement. And it is undisputed experienced troopers do not get involuntarily
relocated after their initial assignment. Garcia even self-described this job action as a
transfer in his letter to Hill informing him that he was headed to southwestern Kansas to
resume his duties.
Viewed in the light most favorable to Hill, this unquestionably establishes how the
defendants treated Hill differently in his terms and conditions of employment as
compared to his fellow troopers. They denied him the insulation from relocation that
other troopers enjoyed. Instead, they treated him as a new hire and forced him to relocate
to keep the job he fought them to regain. What's more, they relocated him hundreds of
miles away to a region obviously considered undesirable to most other troopers. And he
was treated this way, i.e., stripping him of his status as a veteran trooper, only because of
his successful civil service appeal.
The panel also faulted Hill for not controverting the fact that Troop E was in the
greatest need of new troopers when he was assigned there. But so what? This requires too
much of Hill. "[A]n employer's reason need not be false in order to be proven pretextual."
1 Larson on Employment Discrimination § 8.04[2] (2018).
37
While the panel pointed out evidence that could persuade a jury the defendants
lacked retaliatory intent—such as Hill's experience perhaps being beneficial to training
the two new recruits on patrol in Troop E—neither the trial court nor appellate court "can
or should weigh the relative factual positions of the parties in the context of summary
judgment." In re Palmer, 46 Kan. App. 2d 805, 812, 265 P.3d 565 (2011). A court should
be cautious in granting a motion for summary judgment when resolution of the
dispositive issue requires it to determine the state of mind of one or both of the parties.
See Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 974, 298 P.3d 250(2013) ("[T]he fact question of the existence of good or bad faith is peculiarly
inappropriate for summary judgment."); Smith v. Farha, 266 Kan. 991, 997-98, 974 P.2d
563 (1999) (whether defendant acted with malice is a factual question for a jury and,
unless undisputed, summary judgment is inappropriate).
Hill's summary judgment evidence raised genuine issues of material facts as to
whether the transfer would dissuade a reasonable worker from exercising civil service
appeal rights; whether Hill's decision to appeal caused the transfer; and whether the
Troop E staffing shortage was merely pretext for retaliation.
The district court erred in granting summary judgment to the defendants.
Reversed and remanded.
***
STEGALL, J., dissenting: The majority acknowledges that under the Kansas Tort
Claims Act (KTCA) "a governmental entity can be found liable for the negligent or
wrongful act or omission of any of its employees while acting within the scope of their
employment only if (1) a private person could be liable under the same circumstances and
38
(2) no statutory exception to liability applies." Adams v. Board of Sedgwick County
Comm'rs, 289 Kan. 577, 585, 214 P.3d 1173 (2009); slip op. at 21; see K.S.A. 2018
Supp. 75-6103(a).
Thus, the threshold question of this case is whether a private person could be
liable under these circumstances. The majority answers generically that "a private person
can be liable in tort for a retaliatory job placement in violation of a recognized state
public policy." Slip op. at 22. To this end, the majority paints the public policy
proclaimed in K.S.A. 2018 Supp. 75-2949(g) with a broad brush, claiming it is stuck with
the Court of Appeals' holding that the statute "embodie[s] a clear 'public policy against
employers retaliating against employees who appeal their dismissal, demotion, or
suspension.'" Slip op. at 10 (quoting Hill v. State, 53 Kan. App. 2d 155, 187, 388 P.3d
122 [2016]). Indeed, the majority considers this holding to be "settled" because the State
did not cross-petition for its review. Slip op. at 16.
But the majority has selectively quoted the panel's holding, which was narrower
than the majority suggests: "[B]y enacting K.S.A. 75-2949(g), the legislature clearly
declared Kansas' public policy against employers retaliating against employees who
appeal their dismissal, demotion, or suspension under K.S.A. 75-2949." (Emphasis
added.) 53 Kan. App. 2d at 187. That is, the panel recognized that K.S.A. 2018 Supp. 75-
2949(g)'s anti-retaliation policy provided protection only to employees facing retaliation
for appealing a dismissal, demotion, or suspension to the Civil Service Board. See 53
Kan. App. 2d at 186 ("Based on the plain language of K.S.A. 75-2949[g], it is clear that
there is a public policy against State employers retaliating against employees for using
the appeal procedures to challenge dismissals, demotions, and suspensions under K.S.A.
75-2949[d]-[f]") (Emphasis added.); K.S.A. 2018 Supp. 75-2949(f) ("Any permanent
[civil service] employee finally dismissed, demoted or suspended, may request a hearing
from the state civil service board to determine the reasonableness of such action.").
39
Thus, even if the panel's public policy holding must stand, it never extended to
private employers and does not and cannot trump sovereign immunity, as the panel itself
recognized. See 53 Kan. App. 2d at 193-96; see also Connelly v. State Highway Patrol,
271 Kan. 944, 962, 26 P.3d 1246 (2001) (affirming sovereign immunity is a jurisdictional
question that courts are "'compelled to address'"). Here, the State only waived its
sovereign immunity for employment retaliation claims under circumstances where a
private person could be liable. See K.S.A. 2018 Supp. 75-6103(a). Yet the public policy
embodied in the Civil Service Act at K.S.A. 2018 Supp. 75-2949(g) does not apply to all
generic "employers" as the majority suggests. It applies only to the State as an employer.
K.S.A. 2018 Supp. 75-2949(g) prohibits retaliatory actions "because of the employee's
proper use of the appeal procedure," meaning because of the employee's appeal to the
Civil Service Board. A private employee cannot appeal to the Civil Service Board
because that remedy is exclusive to public employees. See K.S.A. 2018 Supp. 75-
2949(f); K.S.A. 2018 Supp. 75-2929d(a) (authorizing the Civil Service Board to hear
appeals "concerning demotion, dismissal or suspension of a permanent employee in the
classified service"); K.S.A. 2018 Supp. 75-2935 (dividing the civil service of the State of
Kansas into classified and unclassified services).
To confront this reality, the majority analogizes to circumstances in which a
private actor—subject to general tort principles—could be liable for similar acts, even if
the state actor's specific conduct is exclusively governmental. See slip op. at 22-24. Thus,
the majority reasons, we must assume in this case that "a private employer did retaliate
against an employee for appealing" to the Civil Service Board and then ask whether,
according to general tort principles, the private employer would "be liable for doing so?"
Slip op. at 22. The majority is willing to overlook the real-world impossibility of this
scenario because "generally applicable negligence law can make a governmental entity
liable for carelessly performing an act that is exclusively governmental in character and
40
which no private person could perform." Slip op. at 24. So, for example, "the generally
applicable law of employment-related torts might make a governmental entity liable for
breaching a legal duty directing its conduct within its own employment relationships,
even if the act that constitutes the breach could only occur in the context of government
employment." Slip op. at 24.
But there is no "generally applicable negligence law" for us to turn to here. Indeed,
before today, there was no common-law tort of retaliation springing from the "strongly
held state public policy" embedded in K.S.A. 2018 Supp. 75-2949(g). Slip op. at 19-20.
The majority has recognized the tort here for the first time, based exclusively on that
embedded public policy. And herein lies the problem—the public policy as declared by
the Legislature and relied on by the majority does not apply to private employers. The
majority has, without statutory foundation, simply extended K.S.A. 2018 Supp. 75-
2949(g)'s public policy to private employers to recognize and enforce a brand new tort
against the State—a tort for which the state has never waived its sovereign immunity.
It may seem counterintuitive to say a public employee cannot sue the State when
the State violates a public policy embodied in the Civil Service Act. The majority is
understandably uncomfortable with this outcome. But whether the State's choice to waive
(or not waive) sovereign immunity in any given circumstance makes good sense
shouldn't be our concern. See, e.g., Virginia Office for Protection and Advocacy v.
Stewart, 563 U.S. 247, 253, 131 S. Ct. 1632, 179 L. Ed. 2d 675 (2011) ("A State may
waive its sovereign immunity at its pleasure."). The State has the power to both create
and subject itself as an employer to certain policies—such as K.S.A. 2018 Supp. 75-
2949(g)'s policy against retaliation for appeals to the Civil Service Board—and to define
the remedies for violating those policies. See K.S.A. 75-2957 (imposing misdemeanor
penalty for any willful violation of the Act).
41
In sum, the State of Kansas has only waived its immunity from liability for the
wrongful acts or omissions of its employees in circumstances where a private employer
could likewise be liable. There is no public policy applicable to private employers
embedded in K.S.A. 2018 Supp. 75-2949(g). Therefore, a private employer cannot be
subject to this tort. And because the tort itself cannot apply to private employers, the
State is immune from Hill's claim.
I respectfully dissent.
LUCKERT, J., joins the foregoing dissenting opinion.
42