Hill v. State ( 2016 )

No. 114,403
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
SAGE HILL,
Appellant/Cross-appellee,
v.
STATE OF KANSAS and ERNEST GARCIA,
Appellees/Cross-appellants.
SYLABUS BY THE COURT
1.
Appellate courts have unlimited review of the trial court's decision to grant or
deny a motion to dismiss for failure to state a claim. Nevertheless, appellate courts must
interpret the well-pleaded facts in the light most favorable to the plaintiff.
2.
Plaintiffs suing under the common-law tort of retaliation, which is a tort
recognized as a public policy exception to the general rule of at-will employment, are not
required to exhaust administrative remedies under the Kansas Judicial Review Act
because they do not seek review or reversal of any administrative finding.
3.
A private right of action under a specific act and an action for the common-law
tort of retaliation are two distinct actions. The Transparency in Lawsuits Protection Act,
K.S.A. 2015 Supp. 60-5201, does not apply to common-law retaliation tort actions
because this tort arises based on a public policy exception to at-will employment, not
based on language contained in a specific act.
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4.
To determine if a public policy exception to at-will exists, courts must consider the
plain language of a statute to ascertain the legislature's intent. Courts should not declare
that a public policy exception exists unless there is no doubt of the legislature's intent.
5.
Even if a public policy exists, plaintiffs may not sue for the common-law tort of
retaliation if an adequate alternative remedy exists under some other statute.
6.
There is a strongly held public policy against State employers retaliating against
State employees for using their appeal rights under K.S.A. 75-2949 of the Kansas Civil
Service Act (KCSA).
7.
When employees have an alternative remedy under the KCSA, which would
furnish the aggrieved employees with adequate or suitable relief, they are not entitled to
bring a common-law tort of retaliation as a public policy exception to the general rule of
at-will employment.
8.
Kansas has recognized two types of common-law retaliation torts: retaliatory
discharge and retaliatory demotion. Central to all common-law retaliation torts is a
showing of harm, for instance, that a plaintiff has suffered a loss of job status, a loss of
pay, or a loss of benefits. When a job placement or transfer involves a lateral move
devoid of any recognizable harm in the form of diminished job status, decreased pay, or
reduced benefits, it cannot constitute a valid common-law tort for retaliation as a public
policy exception to the general rule of at-will employment.
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9.
The State does not waive its sovereign immunity under the Kansas Torts Claim
Act (KTCA) when plaintiffs attempt to sue for a retaliatory job placement devoid of any
recognizable harm, for instance, diminished job status, decreased compensation, or
reduced benefits. For K.S.A. 2015 Supp. 75-6103(a) of the KTCA holds the State liable
only to the extent that "a private person, would be liable under the laws of the State."
Moreover, no private person could be held liable for a nonexistent common-law tort.
10.
At the summary judgment stage, to establish a prima facie case of retaliation,
plaintiffs must provide the following evidence: (1) that they had engaged in a protected
activity; (2) that the employer knew they had engaged in a protected activity; (3) that the
employer then took some adverse employment action against them; and (4) that this
adverse employment action was causally connected to their use of the protected activity.
If plaintiffs cannot establish a prima facie case of retaliation, summary judgment is
appropriate.
11.
Once plaintiffs establish a prima facie case of a retaliatory employment action, the
defendant-employer must be given the opportunity to rebut plaintiffs' prima facie case. If
the defendant-employer provides a legitimate and nondiscriminatory explanation for the
alleged retaliatory action, the burden shifts back to plaintiffs to establish that the
defendant-employer's explanation was a pretext.
12.
When plaintiffs cannot establish that the defendant-employer's explanation was a
pretext, summary judgment is appropriate.
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Appeal from Shawnee District Court; REBECCA W. CROTTY, judge. Opinion filed December 9,
2016. Affirmed in part, reversed in part, and dismissed.
Morgan L. Roach and Michael T. Miller, of McCauley & Roach, LLC, of Kansas City, Missouri,
for appellant/cross-appellee.
M.J. Willoughby, assistant attorney general, and Derek Schmidt, attorney general, for
appellees/cross-appellant.
Before SCHROEDER, P.J., GREEN, J., and STUTZMAN, S.J.
GREEN, J.: Sage Hill, a Kansas Highway Patrol (KHP) trooper, appeals the trial
court's order granting summary judgment in favor of the State of Kansas and Ernest
Garcia, the former Superintendent of the KHP. Hill contends that the trial court erred
when it granted their summary judgment motion. Hill maintains that because he
successfully appealed his job dismissal to the Kansas Civil Service Board (KCSB), the
State and Garcia improperly retaliated against him, upon his reinstatement, by relocating
his job to a different geographical area of the state.
The State and Garcia cross-appeal, arguing that the trial court erred by denying
their respective motions to dismiss because (1) Hill has failed to appeal in accordance
with and exhaust his administrative remedies as provided by the Kansas Judicial Review
Act (KJRA), K.S.A. 77-601 et seq.; (2) Hill cannot bring a private right of action against
them under K.S.A. 75-2949 of the Kansas Civil Service Act (KCSA); and (3) Hill is
barred from bringing his action because the State has not waived its sovereign immunity
under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.
As discussed later, the trial court erred when it denied the State and Garcia's
motions to dismiss because (1) Hill was not suing for a tort recognized under Kansas law;
and (2) the State had not waived sovereign immunity under K.S.A. 2015 Supp. 75-
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6103(a) of the KTCA. Nevertheless, even if the trial court had not erred by denying the
State and Garcia's motions to dismiss, Hill would not be entitled to relief because the trial
court correctly granted the State and Garcia's summary judgment motion. Accordingly,
we affirm in part, reverse in part, and dismiss Hill's action.
Background Information
In Kansas, the KHP assigns its troopers to divisions labeled Troop A through
Troop G. In January 2008, the KHP hired Hill as a trooper. After completing trooper
training, Hill was assigned to Cherokee County, Kansas, within Troop H. Troop H is
located in the very southeastern portion of Kansas. During that time, Hill lived in
Columbus, Kansas, which is within Cherokee County. Hill's direct supervisor in Troop H
was Lieutenant Edna Cordner. Lieutenant Cordner's direct supervisor was the commander
of Troop H, Captain Richard Wilson.
In May 2011, a civilian complained to the Galena City Police Office that Hill was
very rude to her during a traffic stop. At some point, Lieutenant Cordner learned about
the complaint. Lieutenant Cordner contacted Hill, telling him that the KHP would have to
investigate the stop. In doing so, however, she gave him some incorrect information
about the traffic stop, including the date of the stop. Hill then spoke with Lieutenant
Cordner, voicing his concern that she did not have the right date of the traffic stop.
During this conversation, Lieutenant Cordner told Hill that she had never actually spoken
to the complainant but had instead learned about the complaint from Police Officer
Wayne Nelson. This concerned Hill because he, as well as other troopers and law
enforcement personnel, believed that Lieutenant Cordner and Officer Nelson were having
a romantic relationship. Thus, it seems that Hill was concerned that Lieutenant Cordner
had not followed the proper protocol for dealing with this civilian complaint.
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On August, 25, 2011, Hill and Lieutenant Cordner met in a parking lot to discuss
the complaint. While Hill secretly recorded their conversation, he questioned Lieutenant
Cordner's authority to investigate the complaint.
The next day, Lieutenant Cordner told Captain Wilson that Hill had threatened,
disrespected, intimidated, and defamed her during their conversation. This resulted in an
investigation of Hill for insubordination by a KHP Professional Standards Unit (PSU).
The PSU recommended Hill be dismissed for insubordination, and this recommendation
was sent to the KHP superintendent, Colonel Ernest Garcia. Garcia followed the PSU's
recommendation, dismissing Hill on November 3, 2011.
Hill appealed his dismissal to the KCSB under K.S.A. 75-2929d(a)(1) and K.S.A.
75-2949(d)-(f) of the KCSA. On December 6, 2012, the KCSB modified Garcia's
decision to dismiss Hill to a 1-year suspension without pay or benefits. The KCSB
determined that the content of Hill's secret recording established that he had no
"preconceived intention to intimidate, threaten, defame, or blackmail Lt. Cordner."
Moreover, the KCSB determined that dismissal was too harsh a punishment because "Lt.
Cordner's reaction, both in the tone of her voice and her responses did not indicate that
she was under duress or was feeling intimidated." Nevertheless, the KCSB decided to
suspend Hill for 1 year without pay or benefits because he had secretly recorded
Lieutenant Cordner, he had made inappropriate comments during the conversation, and
he had otherwise used bad judgment.
Following the KCSB decision, Garcia's "command staff," which was composed of
Lieutenant Colonel Alan Stoecklein, Major Mark Bruce, Major Mark Goodloe, Major
DeVore, and Major Eichkorn, met to discuss what troop division Hill should be placed
into upon his return to work. Captain Robert Maier, who commanded Troop E, had
recently requested the command staff for 10 more recruits in Troop E. Troop E is located
in the southwestern portion of Kansas and includes Garden City, which is located in
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Finney County. Captain Maier explicitly told the command staff that Finney County was
in the greatest need of all the 24 counties within Troop E. Captain Maier requested that
three more troopers be placed in Finney County alone. The command staff agreed that the
"manpower" in Troop E was drastically low and nearly at an emergency level. The
command staff decided that Hill should be placed in Troop E. Lieutenant Colonel
Stoecklein then recommended to Garcia that Hill should be placed in Troop E, with his
home station located in Finney County. Garcia followed Lieutenant Colonel Stoecklein's
recommendation and placed Hill in Troop E.
On December 13, 2012, Garcia sent Hill a letter, stating: "You are being returned
to active duty effective November 6, 2012 and transferred from Troop H to Troop E,
Finney County." Hill was notified that he would be placed on paid administrative leave
from November 6, 2012, until February 1, 2013, at which time he was to report to his
home station in Finney County. Hill was further notified that his moving expenses would
be paid according to agency policy. Additionally, KHP returned Hill to his same pay
grade and returned his sick leave balance.
On January 18, 2013, Hill filed a motion with the KCSB to enforce or amend. In
essence, Hill argued that the KCSB's order required that he be placed back in Troop H.
Alternatively, Hill argued that the KCSB should amend its final order to require the KHP
to place him back in Troop H. On January 30, 2013, the KCSB denied both requests,
explaining (1) that it never intended that Hill be placed back in Troop H and (2) that his
request was untimely because it should have been filed within 15 days of the final KCSB
order.
Meanwhile, Hill took two other actions in an attempt to avoid being placed in
Troop E. First, on January 21, 2013, Hill made a hardship request to transfer to Troop H.
Hill asserted that he needed to live and work within Troop H because his mother was
sick. Follow up conversations between Hill and Captain Maier, his new direct supervisor
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in Troop E, revealed that his mother lived 1½ hours away from Hill's current house
located in the area of Troop H. Moreover, his mother was married and residing with her
husband. Captain Maier shared this information with Lieutenant Colonel Stoecklein, who
shared the information with Garcia. On February 5, 2013, Garcia denied Hill's hardship
request "based on the circumstances," without further explanation.
Second, on January 22, 2013, Hill filed a new and separate appeal with the KCSB,
challenging his placement in Troop E instead of Troop H. The KCSB dismissed Hill's
appeal on May 1, 2013, because (1) it did not have authority to hear the appeal under
K.S.A. 75-2929d(a)(1); and (2) it could not find that the KHP had committed any
wrongdoing by placing Hill in Troop E instead of Troop H since the KHP superintendent
had both statutory and regulatory discretion in deciding where to place troopers
throughout the state.
Because none of his earlier attempts to avoid placement in Troop E succeeded,
Hill reported for duty to Troop E as required on February 1, 2013. In his agreement for
reimbursement for moving expenses, Hill acknowledged that he was accepting
"employment/transfer" as a "Garden City Trooper" effective February 1, 2013. Despite
this acceptance, Hill continued to try to get transferred back to Troop H. During the
KHP's biannual "make-a-wish" program in February 2013, where troopers can request a
voluntary transfer to another division, Hill requested a transfer to Cherokee County
within Troop H. Captain Maier, who was required to make a recommendation on whether
to grant the transfer, reported to Major DeVore that he could not recommend Hill's
transfer based on the need for troopers in Troop E. Captain Maier pointed out that even
with Hill and the two new troopers, Finney County was still short two troopers. As a
result, Garcia denied Hill's transfer request because "a greater need exist[ed] for [Hill's]
services in [his] present duty assignment."
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On October 10, 2013, Hill made a second make-a-wish transfer request to
Cherokee County within Troop H. Again, Captain Maier recommended denying the
transfer request based on Troop E's manpower needs. On October 17, 2013, while his
make-a-wish transfer was pending, Hill additionally applied for a transfer to El Dorado
within Troop G. Troop G is a division which covers the Kansas Turnpike. Within this
request, Hill asked that his "request to transfer back to Cherokee County [] take priority
over this request." Garcia denied Hill's make-a-wish request on October 22, 2013, but
granted Hill's Troop G turnpike transfer request on November 5, 2013. It seems that
turnpike transfer requests are given based on seniority. As of this appeal, Hill's home
station remains within Troop G.
Hill Files Suit
On May 31, 2013, between his first and second make-a-wish transfer requests, Hill
sued the KHP, and Garcia personally, for the "common-law tort for retaliatory transfer
and discrimination." Hill argued that the KHP's action of placing him in Troop E upon his
return from his suspension and paid administrative leave violated the underlying public
policy purposes of K.S.A. 75-2949(g). K.S.A. 75-2949(g) states: "No employee shall be
disciplined or discriminated against in any way because of the employee's proper use of
the [KCSB] appeal procedure" for dismissals, demotions, and suspensions. Hill asserted
that he was entitled to an award of actual and punitive damages without stating the
specific money amount he was requesting. Later, Hill clarified that he was seeking
$9,000 in actual damages and $200,000 for pain and suffering.
On August 15, 2013, Hill filed his first amended petition. The substance of Hill's
arguments were identical to his original petition. Nevertheless, Hill dropped his suit
against the KHP and substituted the State of Kansas as a party in its place.
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The State and Garcia filed a joint answer, denying that there was any retaliatory or
discriminatory intent within the decision to place Hill in Troop E upon his return from his
suspension and paid administrative leave.
Motions to Dismiss
Although substantively similar, the State and Garcia then filed separate motions to
dismiss Hill's action. The State made three primary arguments within its motion. First,
the State argued that the trial court lacked jurisdiction over Hill's action because he was
attempting to collaterally attack the KCSB's decisions instead of "follow[ing] the
statutorily mandated process, [KJRA]." Second, the State argued that under Kansas law,
civil service employees cannot bring a common-law tort claim for "retaliatory transfer."
Third, the State briefly mentioned that it was entitled to sovereign immunity from Hill's
action because Hill was not suing for a recognized tort, meaning the State had not waived
its immunity under K.S.A. 75-6103(a) of the KTCA. Garcia argued that Hill's action
should be dismissed because (1) Hill was trying to review KHP agency action, meaning
the KJRA provided the exclusive procedures for review; (2) Hill could not sue him for
retaliatory transfer as no such tort existed, meaning Hill failed to state a claim upon
which relief could be granted; and (3) Hill could not sue him because (a) he was not a
proper party to the suit or, alternatively, (b) he had immunity as an agent of the State
under the KTCA.
Hill responded that the trial court should deny the State's and Garcia's motions to
dismiss. Citing Lindenman v. Umscheid, 255 Kan. 610, 875 P.2d 964 (1994), Hill argued
that the KJRA was inapplicable because he was not challenging agency action but suing
for the common law tort of retaliation. Citing Campbell v. Husky Hogs, 292 Kan. 224,
255 P.3d 1 (2011), Hill argued that he could sue for "retaliatory transfer" because a
legitimate public policy was embedded within the language of K.S.A. 75-2949(g). In
other words, Hill asserted that if the trial court did not allow him to proceed with his
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action, it would undermine the legislature's intent of preventing employers from
retaliating against employees for the proper use of KCSB appeal procedures. Finally, Hill
argued that neither the State nor Garcia were entitled to immunity because parties cannot
claim immunity under the KTCA when a plaintiff alleges that the parties committed
additional tortious acts outside the scope of their authority as employers.
Both the State and Garcia replied to Hill's response to their respective motions to
dismiss, repeating their arguments from their initial motions to dismiss.
The trial court denied both the State's and Garcia's motions in a single order. First,
the trial court ruled that Hill's action was not subject to the KJRA because he was not
seeking review of any agency action but suing for a common-law tort. The trial court
cited to the KCSB's dismissal of Hill's second appeal for lack of jurisdiction as evidence
that Hill had no remedy through the KCSB and, in turn, had no available remedy under
the KJRA. Next, the trial court ruled that Hill could bring a common-law tort claim of
"retaliatory transfer," even though it seemed no party had alleged such a tort before in
Kansas. In making this ruling, the trial court relied on Brigham v. Dillon Companies, Inc.,
262 Kan. 12, 20, 935 P.2d 1054 (1997), where our Supreme Court recognized the
common-law tort of retaliatory demotion as the logical extension of the tort of retaliatory
discharge. Based on the Brigham holding, the trial court concluded that retaliatory
transfer was also the logical extension of retaliatory discharge and demotion. Finally, the
trial court ruled that the State's and Garcia's arguments regarding sovereign immunity
were unpersuasive for two reasons: (1) because it believed that Hill could sue for
retaliatory transfer, meaning the State had waived its immunity under K.S.A. 75-6103(a)
and (2) because no other KTCA exception to the waiver of sovereign immunity applied.
Following the denial of their motions to dismiss, the State and Garcia jointly
moved to reconsider the ruling not to dismiss Hill's action. In this motion, the State and
Garcia argued that despite Hill's assertion to the contrary, he was attempting to review an
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agency decision, meaning the KJRA provided the exclusive remedy for relief. In turn, the
State and Garcia argued that Hill's May 2013 petition to the trial court for review of the
KCSB's December 2012 order denying Hill's motion to enforce or amend was untimely
under KJRA's 30-day time limit to appeal. The trial court rejected these arguments,
reiterating that Hill was not attempting to review agency action but attempting to sue the
State and Garcia for committing a tort.
KHP Procedures
In addition to K.S.A. 74-2105 et seq., the laws specifically pertaining to the KHP,
KHP has contracted with the Kansas State Trooper Association (KSTA) regarding certain
rules. These rules are referred to as the "Memorandum of Agreement between the Kansas
Highway Patrol and the Kansas State Troopers Association" (MOA). The MOA defines a
transfer as "[t]he physical movement of a trooper/motor carrier inspector from the
established county of residence." In relevant part, the MOA states under section 2 that
"[t]he Association and patrol agree that the transfer of troopers/motor carrier inspectors in
the appropriate unit either temporarily or permanently to any place in the state shall be
the sole responsibility of the Superintendent of the KHP in accordance with K.S.A. 74-
2106 and K.S.A. 74-2114." Concerning make-a-wish transfers, MOA section 2 states that
troopers "may express preference for such transfer by writing the member's preferences
to the Superintendent. All such statements of preference will be considered, but will not
be binding." Section 3 further states that upon a trooper's make-a-wish transfer request,
the "Superintendent maintains the right to deny any voluntary transfer request for the
good of the agency or to maintain sufficient skill base in the area," and the "[f]ailure to
grant a voluntary transfer shall not be grievable."
Moreover, according to Garcia's command staff, they would meet weekly to
discuss various KHP issues. The command staff would come to an agreement on the
issues based on the available information regarding KHP needs. Then, Lieutenant
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Colonel Stoecklein would report the command staff's recommendations to Garcia. At his
deposition, Garcia testified that he relied very heavily on his command staff's
recommendations. Garcia explicitly stated that he trusted the advice of Lieutenant
Colonel Stoecklein regarding the placement of Hill in Troop E upon his return to work
and made all of his decisions regarding Hill's placement based on agency need.
Hill's Employment Documents
Hill's application with the KHP states that he would prefer to go to Cherokee or
Labette Counties, but he was willing to go anywhere if hired. Furthermore, a printout of
Hill's November 6, 2012, payroll sheet indicates that he was an active employee at that
time.
KHP Map and Table
A map created by Major Bruce entitled "KHP Field Study Staffing by County,"
shows that in December 2012, there were only two troopers in both Finney County—
within Troop E—and Cherokee County—within Troop H. There are 24 counties in Troop
E and 16 counties in Troop H. Out of the 24 counties in Troop E, 14 counties had no
assigned troopers in December 2012, with a total of 15 troopers covering the entirety of
division Troop E. Meanwhile, out of the 16 counties in Troop H, 2 counties had no
assigned troopers in December 2012, with a total of 25 troopers covering the entirety of
division Troop H.
A table prepared by the KHP, based on 2013 data obtained from the Kansas
Department of Transportation, shows how many miles a trooper within each division had
to cover. A trooper in Troop E was responsible for 25,302 miles of highway. A trooper in
Troop H was responsible for 19,454 miles of highway.
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Command Staff Reasoning Behind Hill's Placement in Troop E
At their respective depositions, each member of the command staff testified that at
the weekly meeting following the KCSB's order changing Hill's dismissal to a 1-year
suspension, they decided Hill should be placed in Finney County within Troop E because
of the severe shortage of troopers in that division. Major Eichkorn testified that the
shortage of troopers in Troop E was the greatest shortage he had seen in his 26 years with
the KHP. Major Devore explained that Troop E was functioning at "half strength at best,"
which meant there was no question to him that Troop E's need for troopers was the
greatest. Captain Maier described the trooper shortage then as a near emergency.
According to Captain Maier, to be fully staffed, Finney County required at least
six troopers. Evidently, four new recruits were supposed to be placed in Finney County
following graduation from the academy, but two of the recruits failed to graduate. As a
result, Finney County was patrolled by the two new recruits alone as of December 2012.
At his deposition, Lieutenant Colonel Stoecklein pointed out that one benefit of placing
Hill in Troop E was that Hill had experience and could start immediately without
additional training. Major Goodloe also testified at his deposition that Hill had experience
and could provide training to the new troopers, factoring in the command staff's decision
to recommend to Garcia that Hill, upon his return, be placed in Troop E.
In explaining why Hill's February 2013 hardship request was denied, Lieutenant
Colonel Stoecklein testified that he had recommended denying Hill's hardship request
because Hill's mother lived with her husband, who could provide medical care to her if
needed. Moreover, Tammie Lord, former counsel and current custodian of records for
KHP, submitted an affidavit stating that Hill had never submitted medical documents to
support his hardship request. According to Lord, the two troopers who were granted
hardship requests in 2014 submitted medical documents in support of their requests.
Lieutenant Colonel Stoecklein also testified that in the two instances when requests were
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approved, members of the trooper's immediate family household had medical conditions
which could be better treated in a different location. Even then, however, Lieutenant
Colonel Stoecklein testified that neither of those troopers were transferred to the exact
locations they had requested.
Regarding Hill's February 2013 and October 2013 make-a-wish transfer requests,
Lieutenant Colonel Stoecklein testified that just because a trooper makes a request does
not mean that the KHP will grant the request. Lieutenant Colonel Stoecklein admitted
that when Hill made two make-a-wish requests to transfer from Troop E to Troop H there
was also a trooper shortage in Troop H. Lieutenant Colonel Stoecklein explained that
there was a shortage of personnel needs throughout the State. Nevertheless, Lieutenant
Colonel Stoecklein explained that the decision was made to keep Hill in Troop E because
Troop E was in even greater need than Troop H. In his affidavit, Major Bruce explained
that make-a-wish transfers are sometimes granted, but such transfers are generally not
granted when a trooper requests a transfer out of an underserved division.
Major Bruce admitted that he did not believe any KHP trooper had been
involuntarily transferred during his 4 decades of service.
Hill's Deposition Testimony
During his deposition, Hill testified that he believed his placement in Troop E was
retaliatory because Garcia was very angry with him based on what he saw at the hearing
before the KCSB. Hill testified that although he loved working in Troop H, he did not get
along with his supervisors in Troop H. Hill explained that during the time of his
suspension and administrative leave he had been working with the Cherokee County
Sheriff's Office. Hill also explained at his deposition that when he lived in Columbus,
Kansas, while working in Troop H, he would visit his mother about once a month. Hill
testified that he was seeking $9,000 for actual damages related to time he spent traveling
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back and forth between his new residence in Garden City and his old residence in
Columbus and $200,000 for pain and suffering "for the ten-month period [he was] in
Garden City." Hill complained that the stress from the transfer resulted in him suffering
from anxiety, depression, impotence, and an eye twitch.
Motion for Summary Judgment
On March 17, 2015, the State and Garcia jointly moved for summary judgment. In
this motion, the State and Garcia argued that Hill had failed to establish a prima facie
case of retaliation because there was no evidence that Hill was treated differently as a
trooper in Troop E than as a trooper in Troop H. Next, the State and Garcia argued that
for Hill to successfully sue them, he had to prove that KHP's reason for placing him in
Troop E upon his return from suspension was actually retaliatory and that their
explanation for his placement—because of an extreme shortage of troopers— was a mere
pretext. Citing KHP maps and staff member's deposition testimony, the State and Garcia
then emphasized that Hill's placement in Finney County within Troop E was because
Finney County had the greatest need of troopers when Hill returned to duty. Thus, they
argued there was a legitimate reason for the denial of Hill's hardship transfer request and
make-a-wish transfer requests. They emphasized the following: (1) that Garcia had the
discretion under KHP rules and regulations to place Hill wherever Hill was needed and
(2) that Hill received the same pay and benefits upon his return from suspension.
Accordingly, the State and Garcia asserted that Hill could not prove that they had
retaliated or discriminated against him in any way. The State and Garcia also asserted
that the trial court should grant summary judgment because Hill could not establish that
their critical shortage of troopers in Troop E explanation was a pretext.
In addition, the State and Garcia asserted that Hill's placement in Troop E upon his
return from suspension and paid administrative leave was an "assignment" and not a
"transfer." The State and Garcia made this distinction because newly employed KHP
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troopers cannot be transferred from one division to another division since they do not
have an assigned division yet. According to the State, to be transferred, a trooper must
first have an assigned division, and since Hill had not been employed with the KHP over
a year upon his return to work in February 2013, he had no assigned division. Thus, the
State and Garcia asserted that Hill's arguments regarding being involuntarily transferred
were unfounded because he had not been transferred at all.
To support their summary judgment motion, the State and Garcia attached the
command staffs' depositions, Captain Maier's deposition, Garcia's deposition, Hill's
deposition, and the maps that were discussed earlier. The State and Garcia also attached
the KCSB's orders, the documents pertaining to Hill's hiring, the letter from Garcia
dismissing Hill, the letter from Garcia placing Hill in Troop E following his suspension
and paid administrative leave, the transfer requests made by Hill, and the letters from
Garcia denying those requests.
In responding to the State and Garcia's motion for summary judgment, Hill agreed
that to successfully sue the State and Garcia for retaliatory transfer, he was required to
establish that the State and Garcia's reasoning for placing him in Troop E—the critical
shortage of troopers in Troop E reasoning – was a mere pretext. Hill argued that he
survived this burden because the following evidence proved that the State and Garcia's
critical shortage of troopers in Troop E explanation was a mere pretext: (1) Garcia was
angry with him during the KCSB hearing regarding his dismissal; (2) Garcia denied his
hardship transfer request and make-a-wish transfer requests; (3) Garcia granted his
transfer to Troop G request because turnpike bids are determined by seniority; (4) KHP
did not typically make involuntary transfers; and (5) KHP placed other people in Troop H
while he was stationed with Troop E. In regards to the State and Garcia's argument that
Hill's placement in Troop E was an assignment, not a transfer, Hill argued that his
placement in Troop E was clearly a transfer because (1) Garcia called it a "transfer" in the
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December 2012 letter telling Hill he was reinstated and (2) KHP records listed him as an
active employee as soon as he was placed on paid administrative leave.
In their reply to Hill's response, the State and Garcia reiterated that the reason Hill
was placed in Troop E upon his return from his suspension and paid administrative leave
was because of the critical shortage of troopers in Troop E. The State and Garcia pointed
out that Hill did not provide any evidence to controvert the fact that there was a severe
shortage of troopers in Troop E; instead, Hill merely made the speculative allegations that
Garcia and his command staffs' reasoning was retaliatory. The State and Garcia further
argued that the placement in Troop E was an assignment and not a transfer because Hill
was not an employee of the KHP because he was working for another law enforcement
agency while suspended and had to retake the KHP trooper oath upon his return to work.
The trial court granted the State and Garcia's motion for summary judgment. First,
the trial court noted that to establish a prima facie case of retaliation, a plaintiff must
show (1) that the plaintiff took some protected action; (2) that the employer knew about
this protected action; (3) that the employer responded by taking some adverse
employment action; and (4) that there was a causal connection between the protected
action and the adverse employment action. Then, the trial court explained that Hill had
failed to establish that his placement in Troop E constituted an adverse employment
action since he had the same job, pay, benefits, and status upon his return to work after
his successful KCSB appeal. The trial court further explained that even if Hill had
established that KHP took an adverse employment action, he failed to establish a
sufficient causal connection between the protected activity, which involved his use of
KCSB appeal procedures, and the adverse employment action of his being placed in
Troop E because Garcia was very angry with him.
Finally, the trial court determined that even if Hill had established a prima facie
case, he had failed to establish that the State and Garcia's explanation about the critical
18
shortage of troopers was a mere pretext. The trial court explained that Hill's assertions
that he was treated unfairly did not controvert the evidence: (1) that there was a severe
shortage of troopers in Troop E and (2) that there were legitimate reasons why Hill's
hardship and make-a-wish transfers were denied. Accordingly, the trial court ruled that
Hill had failed to meet his burden of showing a pretext and granted the State and Garcia's
motion for summary judgment.
Appeal
Hill timely appealed the trial court's decision to grant summary judgment in favor
of the State and Garcia. The State and Garcia timely cross-appealed the trial court's
decision concerning their motions to dismiss.
Did the Trial Court Err by Denying the State's and Garcia's Motions to Dismiss?
On appeal, the State and Garcia argue that the trial court erred by denying their
respective motions to dismiss for three reasons. First, the State and Garcia argue that the
trial court should have dismissed Hill's action because Hill's exclusive remedy was to
appeal the KCSB's orders in accordance with the KJRA. Second, the State and Garcia
argue that the trial court should have dismissed Hill's action because the KCSA does not
create a private right of action that would allow Hill to bring this retaliatory job
placement claim, which also does not constitute a valid tort. Third, the State and Garcia
argue that the trial court should have dismissed Hill's action because the State had not
waived its immunity under the KTCA.
Hill responds that the trial court correctly denied the State and Garcia's motions to
dismiss because (1) he is not seeking review of an agency action, meaning the KJRA is
inapplicable; (2) he is not bringing a private right of action under the KCSA but suing for
the common-law tort of retaliation based on public policy; and (3) he can bring this
19
action because none of the sovereign immunity exceptions under the KTCA are
applicable.
Standard of Review
When an appellate court examines the trial court's decision to grant or deny a
motion to dismiss for failure to state a claim, it has unlimited review. Cohen v. Battaglia,
296 Kan. 542, 545-46, 293 P.3d 752 (2013). Appellate courts must interpret the well-
pleaded facts in the light most favorable to the plaintiff. Cohen, 296 Kan. 545-46.
Dismissal is improper if those well-pleaded facts state any claim upon which relief could
be granted. Cohen, 296 Kan. 545-46.
Overview of Important Provisions of the KCSA
This case turns on the language of several provisions within the KCSA. The
enacted purpose of the KCSA is
"to establish a system of personnel administration that meets the social, economic and
program needs of the people of the state of Kansas as these needs now or in the future
may be established. This system shall provide means to recruit, select, develop and
maintain an effective and responsible work force and shall include policies and
procedures for employee hiring and advancement, training and career development, job
classification, salary administration, retirement, fringe benefits, discipline, discharge and
other related activities." K.S.A. 75-2925.
When public employees believe that they have been unfairly treated, they have a
limited right to appeal to the KCSB. The KCSB may only hear appeals from public
employees if their complaint falls into one of the statutorily recognized categories that
allows appeal. Specifically, the KCSB
20
"shall hear appeals taken to it pursuant to (1) K.S.A. 75-2940, 75-2949 and 75-3747, and
amendments thereto, concerning demotion, dismissal or suspension of a permanent
employee in the classified service, or concerning refusal to examine an applicant or to
certify a person as eligible for a job class, and (2) K.S.A. 75-2973 [whistleblowing] and
amendments thereto concerning disciplinary action in violation of that statute."
(Emphasis added.) K.S.A. 75-2929d(a).
K.S.A. 75-2949 governs the procedures concerning the dismissal, demotion, or
suspension of public employees. Subsections (d)-(f) of K.S.A. 75-2949, explain what
employees, employers, and the KCSB must do during the appeal process for dismissals,
demotions, and suspensions. These are the procedures that Hill used in order to
successfully appeal his initial dismissal from the KHP to the KCSB.
On appeal, Hill argues that K.S.A. 75-2949(g) includes an express statement on
Kansas' public policy against retaliation for using the K.S.A. 75-2949(d)-(f) appeal
procedures. K.S.A. 75-2949(g), states that "[n]o employee shall be disciplined or
discriminated against in any way because of the employee's proper use of the appeal
procedure."
Transfer or Assignment?
Before analyzing the State and Garcia's arguments, it is also important to point out
that one of the primary disputes between the parties on appeal is whether Hill's placement
in Troop E was a "transfer" or an "assignment." The State and Garcia assert that Hill's
placement in Troop E was an assignment, emphasizing that Hill was not an employee
with the KHP until his dismissal was amended to a suspension by the KCSB in December
2012. Hill, on the other hand, counters that this was a transfer, since he was employed as
an active trooper before he was placed in Troop E. Moreover, he contends that this was a
transfer because he was listed as an active trooper for payroll purposes before he was
placed in Troop E and because Garcia used the term "transfer" when he placed him in
21
Troop E upon his return from suspension. All parties agree, however, that a "transfer"
means that the KHP moves an active trooper from one home station to another home
station without any change of job status, pay, or benefits, while an "assignment" means
that the KHP places a newly hired trooper in his or her initial home station.
As Hill recognizes in his reply brief, the transfer versus assignment argument is
wholly irrelevant to the outcome of whether a public policy exception exists. Therefore,
we do not need to answer the question of whether Hill's placement in Troop E was a
"transfer" or an "assignment." Consequently, the key question is not whether Hill was
transferred or assigned to Troop E, but whether the underlying reason for his placement
in Troop E was retaliatory. Thus, unless referencing one of the parties' specific arguments
concerning a transfer or assignment, we will refer to Hill's post in Troop E as a
"placement" or "job placement."
Failure to Comply With the KJRA
The State and Superintendent Garcia first argue that the trial court erred by
denying their respective motions to dismiss because Hill failed to timely exercise the
options available to him through the KJRA.
K.S.A. 2015 Supp. 75-2929h of the KCSA states that "the Kansas judicial review
act shall be applicable to appeals from orders of the civil service board." A person may
not file a petition for judicial review under the KJRA, however, until that person has
exhausted "all administrative remedies available within the agency whose action is being
challenged and within any other agency authorized to exercise administrative review."
K.S.A. 2015 Supp. 77-612. Nevertheless, once an appeal is taken, K.S.A. 77-606 of the
KJRA states that the KJRA "establishes the exclusive means of judicial review of agency
action." K.S.A. 77-602(b) of the KJRA states that "'[a]gency action' means (1) [t]he
whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and
22
regulation or an order; or (3) an agency's performance of, or failure to perform, any other
duty, function or activity, discretionary or otherwise."
On appeal, the State and Garcia assert that Hill's entire action is an attempt to
collaterally attack the KHP's decision to place him in Troop E, which the State and
Garcia argue constitutes an agency action. In turn, because Hill is actually trying to
review agency action, he was (a) limited to appealing in accordance with KJRA
procedures and (b) required to exhaust all of his administrative remedies at the agency
level. In short, the State and Garcia argue that the trial court erred when it rejected their
KJRA arguments because (1) Hill is suing to reverse agency action, meaning he was
required to comply with KJRA appeal procedures and (2) Hill could have appealed the
KCSB orders and filed a grievance with the KHP, meaning he failed to exhaust
administrative remedies. They also argue that the trial court erred by relying on
Lindenman in determining the KJRA was inapplicable.
Agency Action Argument
The State and Garcia contend that Hill is challenging this job placement by
questioning the manner in which Garcia exercised his discretion, which falls within the
definition of agency action under K.S.A. 77-602(b)(3). Technically, the State and Garcia
are correct. The actual placement of Hill in Troop E was an agency action. The problem
with their argument, however, is that Hill is not seeking review of his placement in Troop
E. Instead, Hill is seeking review of the underlying motivation for the reason he was
placed in Troop E, which does not involve a declared agency action but an alleged tort.
Despite the State and Garcia's argument to the contrary, Lindenman v. Umscheid,
255 Kan. 610, 875 P.3d 964 (1994), the case the trial court relied on in determining that
Hill was not suing for agency action, is on point. In Lindenman, day care operators sued
the Kansas Department of Health and Environment (KDHE) for torts committed by the
23
KDHE, including malicious prosecution and abuse of process. 255 Kan. at 610. The
KDHE argued that the KJRA provided the exclusive means for review of any agency
action, and because Lindenman's appeal did not comply with KJRA, it was entitled to
dismissal. Lindenman, 255 Kan. at 616. Our Supreme Court disagreed, holding that the
KJRA is not the exclusive remedy for plaintiffs bringing tort claims against the agency.
Lindenman, 255 Kan. at 619-20. Our Supreme Court explained that while cases seeking
review of agency action involve examining agency findings of fact, conclusions of law,
and decisions, cases based in tort seek review of wrongful acts committed by the agency
with a request for damages. Lindenman, 255 Kan. at 619-20. As a result of this holding,
the Lindenman court also necessarily held that plaintiffs suing an agency for tort are not
required to exhaust administrative remedies as stated under K.S.A. 77-612 of the KJRA.
Lindenman, 255 Kan. at 619-20; see also Platt v. Kansas State University, 305 Kan. 122,
Syl. ¶ 5, 379 P. 3d 362 (2016) (where our Supreme Court held that the KJRA does not
apply to civil retaliation torts against administrative agencies).
Here, Hill is attempting to sue the State and Garcia for the common-law tort of
retaliation, a tort which arises under the public policy exception to the general rule of at-
will employment. Consequently, Hill, like Lindenman, is suing for a tort with the goal of
obtaining money in compensation for the State and Garcia's alleged wrongdoing.
Additionally, Hill's action, like Lindenman's action, does not seek the reversal of agency
action or involve the examination of agency findings of fact, conclusions of law, or
decisions.
Therefore, our Supreme Court's precedent holding in Lindenman clearly indicates
that the KJRA does not provide Hill's exclusive means of review. Our Supreme Court
precedent in Lindenman further states that Hill was not required to exhaust his
administrative remedies before filing this action. Hence, the State's argument regarding
Hill attempting to collaterally attack KHP's job placement decision and argument
24
regarding the inapplicability of Lindenman are incorrect. In turn, the trial court properly
rejected these arguments.
Failure to Appeal KCSB Orders or File a KHP Grievance Arguments
The State and Garcia next argue that the trial court erred by denying their motion
to dismiss because Hill failed to exhaust his administrative remedies as required under
K.S.A. 2015 Supp. 77-612 of the KJRA. The State and Garcia argue that "[t]he agency
actions of which Hill could have timely sought or at least attempted judicial review
included the Civil Service Board's Orders of December 6, 2012, January 30, 2013, or
even the May 1, 2013 Board order." The State and Garcia also argue that Hill failed to
exhaust his administrative remedies by failing to file a grievance with the KHP
concerning his placement in Troop E.
KHP and MOA Grievance Procedures
Internal KHP grievance procedures state as follows:
"II. Policy
....
"C. It is the responsibility of all employees to conform with civil service rules, agency
policies and reasonable work related instructions from supervisors. Should employees
decide to file an official complaint or grievance, they should do it in a courteous manner
and in accordance with these procedures.
"D. The following are non-grievable issues.
....
"4. Any matter for which a statutory or regulatory appeal process exists (this process may
not be used in addition to or in place of those processes)."
25
Based on the plain language of the preceding KHP grievance procedure policy, the
KHP grievance procedure cannot be used unless a statutory or regulatory appeal process
does not already exist. If such a process exists, a complainant's issue is "non-grievable"
under the rules.
The Memorandum of Agreement between the Kansas Highway Patrol and the
Kansas State Troopers Association (MOA) includes identical language. Article 20,
"Grievance and Arbitration." Section 1 states under subsection E that the MOA grievance
procedures "shall not apply to disciplinary action of demotion, termination, and
suspension which shall be covered by the appeals procedure of the rules and regulations
of the Department of Administration, Kansas Civil Service Statutes and Amendments
thereto." (Emphasis added.) Although some parts of the MOA were included in the
record on appeal, the parts concerning grievances were not. The only provisions of the
MOA included in the record on appeal are the provisions on management rights and
transfers. Nevertheless, at oral argument, counsel for the State and Garcia mentioned that
Hill had an adequate remedy through the MOA grievance procedures.
Analysis
In their cross-appellants' brief, the State and Garcia include one paragraph where
they assert that "Hill had remedies within the KHP." There are three primary reasons,
however, why we hold that Hill did not have an adequate remedy under KHP grievance
procedures.
First, as previously explained, because Hill is not seeking review or reversal of
any agency action, he is not required to exhaust his administrative remedies under K.S.A.
2015 Supp. 77-612 of the KJRA. See Platt, 305 Kan. 122, Syl. ¶ 5; Lindenman, 255 Kan.
at 619-20. Accordingly, this argument is meritless.
26
Second, as emphasized in the preceding section of KHP grievance procedures, a
complainant has the ability to file a grievance under the KHP rules or MOA rules so long
as the grievance does not involve an issue covered under the Kansas Civil Service Act
(KCSA). As discussed below, KCSB had no jurisdiction to consider Hill's specific claim
that he suffered a "retaliatory transfer" in violation of the public policy stated in K.S.A.
75-2949(g). Yet, that is not what the State and Garcia argue on appeal. Instead, the State
and Garcia argue that Hill could have found a remedy through the KCSB and KJRA
appeal process, a remedy under the KHP grievance procedures, and based on oral
arguments, a remedy under the MOA grievance procedures. This argument is obviously
incorrect because it ignores the plain language of the KHP rules and MOA rules stating
that their respective grievance procedures are inapplicable for complaints covered by the
KCSA.
Third, in their brief, the State and Garcia do not explain their grievance argument
nor do they cite to a place in the record in support of their argument. The extent of the
State and Garcia's arguments are limited to the following two points: (1) "It should also
be emphasized that Hill had remedies within the KHP, including filing a grievance
regarding the initial assignment, which he failed to exhaust as required by the KJRA,
K.S.A. 77-612 (2015 Supp.)," and (2) "[h]ad Hill promptly availed himself of remedies
before the KHP, the matter could have long ago been concluded in an efficient and cost-
effective manner consistent with the KJRA."
Kansas courts have consistently held that a point raised incidentally in a brief and
not argued therein is deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts,
296 Kan. 636, 645, 294 P.3d 287 (2013). Moreover, a party claiming error has the burden
of designating a record that supports his or her argument. Friedman, 296 Kan. at 644-45.
Here, the State and Garcia submitted 40 pages of argument, which included only two
sentences on KHP grievance procedure and absolutely no citations to the record. Again,
the MOA procedures that were referenced at oral arguments were not even included in
27
the record on appeal or argued in their brief. Consequently, not only have the State and
Garcia abandoned their argument, they have failed to comply with this court's rule on
designating a record that supports a claim. As a result, their argument fails.
Private Right of Action
The State and Garcia's next argument is clearly incorrect. The State and Garcia
argue that the trial court erred by denying their respective motions to dismiss because the
plain language of the KCSA does not create a private right of action for employees
complaining about a retaliatory transfer. In addition to looking at the plain language of
the statute, the State and Garcia emphasize that the recently enacted Transparency in
Lawsuits Protection Act (TLPA), K.S.A. 2015 Supp. 60-5201, supports their argument
that the KCSA provides no private right of action for employees complaining about
retaliatory transfers. Last, the State and Garcia cite several Kansas and federal cases in
support of their argument that there is no private right of action.
Hill never contests that no private right of action exists under the KCSA for
employees complaining about retaliation for appealing a dismissal, demotion, or
suspension under K.S.A. 75-2949. Yet, Hill points out that he has not sued the State and
Garcia under the KCSA. Instead, Hill explains that he is suing the State and Garcia based
on the common-law tort of retaliation as a public policy exception to the general rule of
at-will employment based on public policy found within subsection (g) of K.S.A. 75-
2949. Accordingly, Hill requests that this court ignore the State and Garcia's arguments.
Hill is correct. This is clear from his petition and all his arguments below. For
instance, in his petition, Hill explicitly states that he is suing the State and Garcia for "the
common-law tort for retaliation and discrimination based upon public policy." Nothing in
Hill's petition states or implies that he is suing under the KCSA. Accordingly, the State
and Garcia have spent a great deal of time in their cross-appellant's brief knocking down
28
a straw man argument, failing to focus on the real issue, which is whether a public policy
exception exists within the plain language of K.S.A 75-2949(g).
Nevertheless, a review of Goolsby v. Mgmt. & Training Corp., No. 14-4019-SAC,
2014 WL 2988748 (D. Kan. 2014), is a good way to establish the difference between
bringing a private right of action under the KCSA and bringing an action for a common-
law tort based on a public policy exception to at-will employment. This case not only
establishes the difference between these two things but also establishes why the State's
argument regarding the TLPA is wrong.
Goolsby and the TLPA
In Goolsby, Goolsby sued her employer for wrongful discharge in retaliation for
suffering an on-the-job injury and filing a workers compensation claim. 2014 WL
2988748, at *1. In the past, Kansas has held that retaliatory discharge for filing a workers
compensation claim is one of the public policy exceptions to at-will employment, despite
the fact no language within the Kansas Workers Compensation Act (KWCA) creates a
private right of action for retaliation. See Goolsby, 2014 WL 2988748, at *2. Goolsby's
employer asserted that in light of the 2012 TLPA, Goolsby could no longer sue for
retaliatory discharge. Goolsby, 2014 WL 2988748, at *1.
The TLPA states as follows:
"(a) This section shall be known as the transparency in lawsuits protection act
and shall be part of and supplemental to the Kansas code of civil procedure.
"(b) It is the intent of the legislature that no statute, rule, regulation or other
enactment of the state shall create a private right of action unless such right is expressly
stated therein.
29
"(c) Any legislation enacted in this state creating a private right of action shall
contain express language providing for such a right. Courts of this state shall not construe
a statute to imply a private right of action in the absence of such express language.
"(d) Nothing in this act shall be construed to prevent the breach of any duty
imposed by law from being used as the basis for a cause of action under any theory of
recovery otherwise recognized by law, including, but not limited to, theories of recovery
under the law of torts or contract." K.S.A. 2015 Supp. 60-5201.
The trial court rejected Goolsby's employer's argument that the TLPA barred
Goolsby from suing for retaliatory discharge as a public policy exception to at-will
employment. In rejecting the employer's argument, the court explained:
"The terms of the TLPA, in particular subsections (b) and (c), are plainly aimed
at impacting how courts analyze a negligence per se claim for whether the Kansas
legislature intended a private right of action to be created by statute. And specifically, the
Kansas Legislature in the TLPA declared its intent to create no private right of action
unless the legislation expressly creates this right. . . .
"In contrast, the Kansas judicial opinions discussing the tort claim of retaliatory
discharge against public policy do not share similar language and analysis with the
TLPA. Over the last 30 years, Kansas courts have 'created' and expanded 'a common-law
tort for retaliatory discharge.' [Citation omitted.] These are exceptions to the general
employment-at-will doctrine for 'when an employee is fired in contravention of a
recognized state public policy.' [Citations omitted] . . . .
"Instead of looking at whether the Kansas Legislature intended to create a private
right of action, the Kansas courts look at whether a strongly held state public policy exists
such that endorsing another exception to the at-will employment doctrine 'is necessary to
protect' this policy 'from being undermined.'" Goolsby, 2014 WL 2988748, at *3-5.
The trial court then explained that when plaintiffs bring tort claims based on
public policy exceptions that "'because the Act is merely a premise for the tort does not
mean that the tort arises under the Act; instead, the Act is present only indirectly as
30
evidence of public policy.'"Goolsby, 2014 WL 2988748, at *5, quoting Vasquez v. Target
Corp., 2009 WL 1764525, at *2 (D. Kan. 2009).
Goolsby clearly explains the difference between bringing a private right of action
under a law and bringing an action for a common-law tort of retaliation based on a public
policy exception to at-will employment. Goolsby also explains that the TLPA is
inapplicable when dealing with public policy exceptions because actions brought based
on public policy exceptions are not brought under the statute in question. Instead, those
actions are brought based on an underlying strongly held public policy that may or may
not be explicitly stated within the statute. Accordingly, Goolsby also explains why the
State and Garcia's first argument is clearly incorrect since Hill is trying to sue the State
and Garcia for common-law retaliation based on a public policy exception to at-will
employment derived from, but not under, K.S.A. 75-2949(g) of the KCSA.
Furthermore, it bears repeating that 60-5201(d) of the TLPA states that the TLPA
must not be construed in a manner that bars a plaintiff from suing "under any theory of
recovery otherwise recognized by law, including . . . theories under the law of torts . . . ."
Clearly, because Hill contends that he is suing the State and Garcia under the common
law tort of retaliation as a public policy exception to the general rule of at-will
employment based on language condemning retaliation under K.S.A. 75-2949(g) of the
KCSA, his action is like the actions described under subsection (d) of the TLPA. This is
yet another reason why the State and Garcia's argument is unpersuasive.
Caselaw
Because the State and Garcia have cited so much caselaw in support of their
argument that Hill cannot bring a private right of action under the KCSA, it is important
to explain why that law is inapplicable or distinguishable.
31
First, the State and Garcia cite Nichols v. Kansas Political Action Committee, 270
Kan. 37, 11 P.3d 1134 (2000), and Transamerica Mortgage Advisors, Inc. (TAMA) v.
Lewis, 444 U.S. 11, 24, 100 S. Ct. 242, 62 L. Ed. 2d 146 (1979), for the proposition that a
plaintiff cannot sue unless the statute the plaintiff is suing under establishes civil liability.
In those cases, the plaintiffs were suing defendants under the Campaign Finance Act and
Investment Advisors Act of 1940, respectively, for remedies not available under those
Acts. See and TAMA, 444 U.S. at 249; Nichols, 270 Kan. at 51. Similarly, the State and
Garcia cite Schrachta v. Curtis, 752 F.2d 1257 (7th Cir. 1985), for the idea that there is
no implied right to private action under the federal civil service act unless such an action
is explicitly stated in the federal civil service act statute. Schrachta, like Nichols and
TAMA, involved a plaintiff suing under a statute that did not include language allowing
for the requested remedy. 752 F.2d at 1258. Yet, as pointed out earlier, Hill is not suing
under the KCSA, but based on public policy found within KCSA. Thus, Nichols, TAMA,
and Schrachta are inapplicable.
Second, the State and Garcia cite many Kansas cases for the proposition that a
civil service employee's exclusive remedy for job-related issues is under the KCSA. See
Purvis v. Williams, 276 Kan. 182, 185, 73 P.3d 740 (2003); Wright v. Kansas Water
Office, 255 Kan. 990, 199-200, 881 P.2d 567 (1994); Parker v. Kansas Neurological
Institute, 13 Kan. App. 2d 685, 687, 778 P.2d 390 (1989). All of these cases, however,
involved the employee-plaintiff attempting to bring an action against the employer for an
initial wrongful dismissal, which is explicitly covered by the appeal provisions detailed in
K.S.A. 75-2949(d)-(f). These cases do not involve a situation, as in Hill's case, where the
plaintiff asserted that he was retaliated against for using the KCSA appeal procedures
contrary to the public policy stated in K.S.A. 75-2949(g). Accordingly, these cases are
distinguishable.
Third, the State and Garcia rely on Connelly v. Kansas Highway Patrol, 271 Kan.
944, 26 P.3d 1246 (2001), for the proposition that the KCSA is the exclusive remedy of a
32
public employee-plaintiff, asserting that Hill's case and the Connelly case are
indistinguishable. In Connelly, the plaintiffs asserted that the KHP dismissed them after
whistleblowing. 271 Kan. at 952-53. Instead of appealing their alleged retaliatory
discharges to the KCSB under K.S.A. 75-2973(d), a provision that provides public
employees disciplined for whistleblowing the ability to appeal to the KCSB, the plaintiffs
brought a common-law retaliatory discharge action against the KHP. Connelly, 271 Kan.
at 952-53. Our Supreme Court held that the KCSA provided the exclusive remedy for the
Connelly plaintiffs because there was a specific provision in the KCSA that provided the
plaintiffs with a way to redress their allegations. 271 Kan. at 953-54.
Nevertheless, as addressed more fully later, KCSA does not contain language
allowing employees to appeal retaliation as stated under K.S.A. 75-2949(g), even though
K.S.A. 75-2949(g) states that discipline and discrimination for using the dismissal,
demotion, and suspension appeal procedures is prohibited. As a result, the State and
Garcia's interpretation of Connelly is called into question. Despite their contention to the
contrary, Connelly is distinguishable from Hill's case, and the Connelly holding is limited
to public employees suing for discharge in retaliation for whistleblowing.
Fourth, the State and Garcia rely on Spagnola v. Mathis, 859 F.2d 223, 225 (D.C.
Cir. 1988), for the proposition that courts have "decline[d] to create a judicial remedy for
Civil Service employees even where the Act itself provided none." Yet, this proposition
is also called into question because, like the Connelly plaintiffs, the Spagnola plaintiffs
had a remedy within the federal civil service act. The problem in Spagnola was that the
Spangola plaintiffs attempted to bring a civil action in order to obtain monetary damages
in addition to using the nonmonetary remedies under the federal civil service act. The
United States Court of Appeals for the District of Columbia determined that under those
circumstances, plaintiffs had an adequate remedy under the federal civil service act even
though there was no monetary remedy. 859 F.2d at 229-30.
33
Case of First Impression
Having established that the real issue at hand is whether a public policy exception
to at-will employment exists, we note that it is important to emphasize this is the first
Kansas case where (1) a plaintiff has attempted to create a public policy exception to at-
will employment based on the language under K.S.A. 75-2949(g) of the KCSA or (2) a
plaintiff has attempted to sue for the common-law tort of retaliatory job placement (called
retaliatory transfer by Hill), as opposed to retaliatory discharge or demotion. Moreover,
because Hill is a public employee suing the State of Kansas, there is the added issue of
sovereign immunity.
Analysis of Hill's argument that a new public policy exception to at-will
employment exists based on the language of K.S.A. 75-2949(g) is made more difficult by
the fact that the State has only argued that Hill was not entitled to bring a private right of
action under the KCSA without addressing the merits of Hill's public policy exception
argument. Generally, an issue not briefed by an appellant is abandoned. See Superior
Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
Public Policy Exception
Typically, Kansas has adhered to the employment-at-will doctrine, meaning that
an employer could dismiss, demote, or otherwise make choices that negatively impacted
an employee, for any reason. Campbell v. Husky Hogs, 292 Kan. 224, 227, 255 P.3d 1(2011). Nevertheless, there are exceptions to this general rule. First, there are statutory
exceptions, for instance, statutes preventing an employer from dismissing an employee
based on race, gender, or disability. Campbell, 292 Kan. at 227. Second, there are public
policy exceptions. In short, over the past 30 years, Kansas courts have whittled away at
the at-will employment doctrine through public policy exceptions, allowing employee-
plaintiffs to sue their employer under the common law theory of retaliatory discharge or
34
demotion when the employer has taken some action in violation of a recognized state
public policy. Campbell, 292 Kan. at 227; Brigham v. Dillon Companies, Inc., 262 Kan.
12, 935 P.2d 1054 (1997).
So far, Kansas courts have recognized five public policy exceptions, allowing
employee-plaintiffs to sue employers for retaliatory discharge and retaliatory demotion.
They are the following: (1) "filing a claim under the [KWCA], K.S.A. 44-501 et seq.";
(2) filing a claim under the Kansas Wage Payment Act (KWPA), K.S.A. 44-313 et seq.;
(3) "filing a claim under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51(2006) et seq."; (4) whistleblowing; and (5) "exercising a public employee's First
Amendment right to free speech on an issue of public concern." Campbell, 292 Kan. at
228, 234. For each of those five exceptions, Kansas courts reached the conclusion that an
exception to the general rule of at-will employment was "necessary to protect a strongly
held state public policy from being undermined." Campbell, 292 Kan. at 229.
To determine if a strongly held state public policy exists, courts must first examine
the plain language of the statute to ascertain the legislature's intent. Campbell, 292 Kan.
at 232. In cases, like this one, where an employee-plaintiff asserts that a strongly held
public policy is embedded within a statute, courts "are faced with three situations: (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. [Citation omitted.]" Campbell, 292 Kan. at
230. "Before courts are justified in declaring the existence of public policy, '"it should be
so thoroughly established as a state of public mind so united and so definite and fixed that
its existence is not subject to any substantial doubt."'" Riddle v. Wal-Mart Stores, Inc., 27
Kan. App. 2d 79, 86, 998 P.2d 114 (2000), quoting Palmer v. Brown, 242 Kan. 893, 897,
752 P.2d 685 (1988). Nevertheless, when there is an express statement of public policy
within the statute, a strongly held public policy exists, and a plaintiff may be able to bring
35
a common-law tort for retaliation as a public policy exception to the general rule of at-
will employment. Campbell, 292 Kan. at 232. Courts should look to the underlying
purpose of the act and the legislative history, only if an express statement of public policy
is not within the statute. Campbell, 292 Kan. at 232.
Even if a strongly held public policy exists, however, a plaintiff may still be barred
from bringing a common-law tort for retaliation as a public policy exception to the
general rule of at-will employment if that plaintiff has an adequate alterative remedy
through some other statute. "Under the alternative remedies doctrine, a state or federal
statute could be substituted for a state retaliation claim—if the substituted statute
provides an adequate alternative remedy." Campbell, 292 Kan. at 236.
Thus, for Hill to bring his action against the State and Garcia as a public policy
exception he must establish that a declaration of public policy exists and an adequate
alternative remedy does not exist.
Plain Language of K.S.A. 75-2949(g) Establishes That a Strongly Held Public
Policy Exists
The plain language of K.S.A. 75-2949(g) makes the declaration of public policy
analysis short. To repeat, K.S.A. 75-2949(d)-(f) allows civil service employees to appeal
their dismissals, demotions, or suspensions to the KCSB. Then, K.S.A. 75-2949(g), the
next subsection of the statute, states: "No employee shall be disciplined or discriminated
against in any way because of the employee's proper use of the appeal procedure."
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). Moreover, given that the language is within a statute, meaning that the
36
legislature enacted this provision, it is readily apparent that the policy is "so thoroughly
established as a state of public mind so united and so definite and fixed that its existence
is not subject to any substantial doubt." See Riddle, 27 Kan. App. 2d at 86.
Additionally, it is important to point out that even if this express language did not
exist, the public policy could be inferred from the KCSA's statutory scheme. K.S.A. 75-
2925 states that the purpose of the KCSA is "to establish a system of personnel
administration that meets the social, economic and program needs of the state of Kansas,"
which includes a system to "develop and maintain an effective and responsible work
force." K.S.A. 75-2949(d)-(f) establishes procedures for employees to appeal their
dismissals, demotions, or suspensions. Thus, obviously, the legislature enacted the rules
allowing public employees to appeal their dismissal, demotions, or suspensions because it
believed that such an appeal process was necessary to develop and maintain an effective
and responsible work force. In turn, any employers' retaliation against employees for
using those appeal procedures would most certainly undermine the legislature's goal of
allowing those appeal procedures in the first place.
This conclusion is consistent with our Supreme Court's previous findings in the
context of the KWPA. In Campbell, our Supreme Court held that because the purpose of
the KWPA was to ensure that employees could obtain their unpaid wages, Kansas has a
public policy of protecting workers rights to their unpaid wages. 292 Kan. at 233-34.
Consequently, the Campbell court held that Kansas also has a public policy against
employers retaliating against employees exercising their rights under the KWPA because
if such retaliation was allowed, it would undermine the underlying purpose of the
KWPA. 292 Kan. at 233-34. The Campbell court reached this conclusion even though no
language in the KWPA expressly prohibited employer retaliation against employees for
the specific claim Campbell filed under the KWPA. 292 Kan. at 233-34. Applying the
Campbell analysis to the facts of this case, we note that the failure to find that Kansas has
a public policy against employers retaliating against employees exercising their rights to
37
appeal their dismissals, demotions, or suspensions under K.S.A. 75-2949 would
undermine the public policy goals connected to the legislature's decision to allow those
employees to appeal their dismissals, demotions, or suspensions in the first place.
In summary, by 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. Yet, even if this express
statement of public policy was not made, the policy could still be implied through the
KCSA's statutory scheme. Accordingly, an express declaration of public policy exists.
Adequate Alternative Remedy
Regardless of the express declaration of public policy, Hill is not entitled to bring
a common-law tort of retaliation as a public policy exception to the general rule of at-will
employment if other adequate alternative remedies exist. In Campbell, our Supreme
Court emphasized that in making a determination whether an adequate alternative remedy
existed, a court should look at (1) whether the alleged adequate alternative remedy
redresses the same or a different harm and (2) whether the alleged alternative remedy
would provide the employee-plaintiff with the same process. 292 Kan. at 236-37.
In arguing that Hill could not bring a private right of action, the State and Garcia
touched on the adequate alternative remedy issue. It seems that the State and Garcia
believe that Hill had an adequate alternative remedy under the KCSA. This is evidenced
by the State and Garcia's emphasis on (1) the fact that K.S.A. 75-2957 of the KCSA
states that persons who violate any provisions or rules of the act are guilty of a
misdemeanor and (2) the fact that the Connelly court held that the KCSA provided the
exclusive and adequate remedy for claims by public employees alleging retaliation for
whistleblowing. See 271 Kan. 944, Syl.
38
Yet, regarding the State and Garcia's misdemeanor punishment argument,
punishing a person for violating the KCSA does not result in an adequate alternative
remedy for Hill. As Hill states in his cross-appellee's brief, if an employer was punished
legally under K.S.A. 75-2957, this punishment would not remedy his suffering and
damages as an employee. Moreover, in Connelly, when explaining that public employees
alleging employer retaliation for whistleblowing had an adequate alternative remedy
under K.S.A. 75-2973(d) of the KCSA, our Supreme Court never stated that employee-
whistleblowers had an adequate alternative remedy because the employer-KCSA violator
could be found guilty of a misdemeanor.
Regarding the State and Garcia's Connelly argument, Connelly and this case are
distinguishable. As previously discussed, the Connelly case involved KHP troopers suing
the KHP for common-law retaliatory discharge because the KHP allegedly dismissed the
troopers after they exercised their whistleblowing rights. 271 Kan. at 955-56. The
Connelly court held that the public employee troopers could not bring their common-law
retaliatory discharge claims because K.S.A. 75-2973(d) provided an adequate remedy.
271 Kan. at 955-56. K.S.A. 2015 Supp. 75-2973(f) states in relevant part: "Any officer or
employee of a state agency who is in the classified service and has permanent status
under the Kansas civil service act may appeal to the state civil service board whenever
the officer or employee alleges that disciplinary action was taken against the officer or
employee in violation of this act." Thus, unlike K.S.A. 75-2949(g), K.S.A. 2015 Supp.
75-2973(f) not only prohibits retaliation but also provides employees with a means to
appeal retaliation to the KCSB. As a result, the Connelly case and this case are
distinguishable.
Finally, it is important to note that the KCSB's order dismissing Hill's January 22,
2013, appeal for lack of jurisdiction further supports that there is no adequate alternative
remedy under the KCSA. In that order, the KCSB stated that it did not have authority to
hear Hill's complaints since it is statutorily limited to hearing appeals "'concerning
39
demotion, dismissal, or suspension of a permanent employee in the classified service.'"
See K.S.A. 75-2929d(a)(1). Thus, the KCSB has recognized that Hill does not have an
avenue to complain about his alleged retaliatory job placement in Troop E under the
KCSA.
Based on the preceding analysis, it is clear (1) that an express public policy against
employers retaliating against employees for exercising their rights to appeal dismissals,
demotions, and suspensions under K.S.A. 75-2949 exists and (2) that no adequate
alternative remedy for Hill's retaliatory job placement claim exists. Generally, this would
be enough to establish a public policy exception to at-will employment. Nevertheless,
because Hill is not suing for a recognized common-law tort like retaliatory discharge or
retaliatory demotion, our analysis does not end here. This court must consider whether a
person can sue for a retaliatory job placement.
Is Retaliatory Job Placement a Valid Common Law Tort?
The State and Garcia rightfully assert that this is the first case where a plaintiff has
attempted to bring a retaliatory job placement claim in Kansas and the first case where a
Kansas court has recognized a retaliatory job placement claim. To review, at the trial
court, the State and Garcia argued that Hill's action should be dismissed because
retaliatory job placement was not a recognized tort. The trial court rejected this argument,
ruling that retaliatory job placement constituted a valid tort based on our Supreme Court's
analysis in Brigham, 262 Kan. 12, holding that a retaliatory demotion was a valid tort. On
appeal, the State and Garcia's arguments concerning why the trial court erred in
determining that a common-law tort for retaliatory job placement exists centers on their
belief that Brigham is distinguishable and that Garcia's discretion is unreviewable. Hill
counters that the trial court's interpretation of Brigham was correct and that even though
Garcia has discretion to take certain actions within the KHP, he did not have discretion to
retaliate against him.
40
Brigham Background
To date, Kansas has recognized two types of common-law retaliation torts—
retaliatory discharge and retaliatory demotion. Brigham, 262 Kan. at 19-20. A tort for
retaliatory demotion was recognized by our Supreme Court in Brigham in 1997. 262 Kan.
at 19-20. In determining that a tort for retaliatory demotion exists, the Brigham court
acknowledged that other courts did not recognize a tort for retaliatory demotions, in part,
because of the risk that doing so would "open floodgates, [to] unforeseen and
unwarranted results." 262 Kan. at 15. Nevertheless, the Brigham court held that it would
recognize a tort for retaliatory demotion because "[t]he linchpin of the tort for retaliatory
demotion is a violation of public policy." 262 Kan. at 19. Moreover, in describing the
differences between a retaliatory discharge and a retaliatory demotion, the Brigham 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
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." 262 Kan. at 20.
Based on the preceding holdings, the trial court ruled that a retaliatory job
placement tort was a logical extension of a retaliatory demotion tort. Yet, the trial court
did not provide any closer analysis of why Kansas should recognize a common-law tort
for retaliatory job placement. A closer analysis of what Hill is actually alleging
establishes that there is an inherent problem with recognizing a common-law tort for
retaliatory job placement in this context.
41
Breakdown of a Common-Law Tort for Retaliatory Job Placement—No Harm
Alleged
To begin with, Hill is suing for a tort. Black's Law Dictionary defines tort as
follows:
"A civil wrong, other than breach of contract, for which a remedy may be
obtained, usu. in the form of damages; a breach of a duty that the law imposes on persons
who stand in a particular relation to one another • Tortious conduct is typically one of
four types: (1) a culpable or intentional act resulting in harm; (2) an act involving
culpable and unlawful conduct causing unintentional harm; (3) a culpable act of
inadvertence involving an unreasonable risk of harm; and (4) a nonculpable act resulting
in accidental harm for which, because of the hazards involved, the law imposes strict or
absolute liability despite the absence of fault." (Emphasis added.) Black's Law Dictionary
1717(10th ed. 2014).
As emphasized by the italicized words within the above definition of tort, torts inherently
involve some sort of harm.
Moreover, Hill is not suing for just any type of tort, but a specific tort based on his
employer's retaliation. Black's law dictionary defines "retaliation" as "[t]he act of doing
someone harm in return for actual or perceived injuries or wrongs; an instance of reprisal,
requital, or revenge." (Emphasis added.) Black's Law Dictionary 1510 (10th ed. 2014).
Thus, like a tort, an inherent part of retaliation is harming another. In other words, an
action cannot be retaliatory unless it inflicts harm on another.
Again, in Kansas, our courts have recognized a common-law tort for retaliation for
retaliatory discharge and retaliatory demotion. When employers discharge their
employees, their employees lose their jobs, their source of income, and any sort of
benefits attached to that job. When employers demote their employees, their employees
42
lose a level of employment status that likely includes loss of pay and loss of benefits.
Accordingly, both discharges and demotions harm the employee.
Under the particular circumstances of this case, it is undisputed that Hill's job
placement in Troop E resulted in no harm, that is, no loss of job, job status, pay, or
benefits. Assuming arguendo that Hill's job placement in Troop E is a "transfer" and not
an "assignment," the KCSA states that a transfer occurs when an employee in the civil
service moves "from a position in one class to a position in another class when the duties
and compensation are similar." K.S.A. 75-2947(a). Similarly, the Kansas Department of
Administration, the agency which the KCSB is under, defines transfer as a "change by an
employee from one position to another position with a close similarity of duties,
essentially the same basic qualifications, and the same pay grade." K.A.R. 1-2-88.
Moreover, the KHP's MOA simply states that a transfer of a trooper is the movement of a
trooper from his or her county of current established residence to another county.
Thus, an 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.
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
43
of a tort. Here, Hill argues that he was harmed by his employer's decision to place him in
or transfer him to Troop E. But this job placement or transfer, by definition, was a lateral
move devoid of any recognizable harm in the form of diminished job status, decreased
compensation, or reduced benefits. Moreover Hill has simply never attempted to show
that his alleged harm falls within any recognizable harm such as loss of job status, loss of
pay, or loss of benefits. Thus, this is reason alone for rejecting Hill's claim for a
retaliatory job placement.
Although the Brigham court provided a fairly broad rule for determining if a
common-law tort for retaliation in violation of public policy exists, it did not hold that
employees could sue their employers for taking some harmless action. As a result, the
State and Garcia's argument that the Brigham holding does not extend "to cover minor
personnel actions" is correct in that the holding does not extend to cover employer
actions that fall outside the established thresholds for a retaliatory tort. In turn, the trial
court erred when it held that a common-law tort for retaliatory job placement was a
logical extension of a retaliatory discharge or demotion based on Brigham. Moreover, it
further erred by recognizing the existence of a common-law tort for retaliatory job
placement and by denying the State and Garcia's motions to dismiss.
Sovereign Immunity
Finally, the State and Garcia argue that Hill's retaliatory placement claim is barred
under the doctrine of sovereign immunity. First, the State and Garcia argue that the State
has not waived its immunity to be sued, as evidenced by the language of K.S.A. 2015
Supp. 75-6103(a) of the KTCA. The State and Garcia also assert that even if the State
waived its immunity under the KTCA, Hill's claim is still barred under (1) the
discretionary function exception and (2) the enforcement or failure to enforce the law
exception. Hill counters that the State waived its immunity by way of the KTCA, and
44
neither the discretionary function exception nor the enforcement or failure to enforce the
law exception apply.
Sovereign Immunity Background
Questions concerning sovereign immunity are jurisdictional and can be raised at
any time. Purvis v. Williams, 276 Kan. 182, 197, 73 P.3d 740 (2003). Because sovereign
immunity is jurisdictional, courts are compelled to address it. Connelly, 271 Kan. at 962.
Moreover, questions involving the application of the KTCA involve statutory
interpretation. Wilson v. Kansas State University, 273 Kan. 584, 586, 44 P.3d 454 (2002).
Interpretation of a statute involves a question of law over which this court exercises
unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469(2015).
Generally, a person cannot sue the State without the State's consent. Commerce
Bank of St. Joseph v. State, 251 Kan. 207, 213, 833 P.2d 996 (1992). In Commerce Bank
of St. Joseph, our Supreme Court explained:
"No suit, whether at law or in equity, can be maintained against the state unless the state
has given its consent or waived its immunity. The purpose of the immunity is to protect
the state from interference with the performance of its governmental functions." 251 Kan.
at 213-14.
Nevertheless, State immunity may be relinquished in three different ways: (1) when the
State consents to the suit; (2) when "the application of Ex parte Young, 209 U.S. 123, 28
S. Ct. 441, 52 L. Ed. 714 (1908), and its progeny is appropriate"; and (3) when Congress
has abolished State immunity. Connelly, 271 Kan. at 961, quoting Schall v. Wichita State
University, 269 Kan. 456, 466, 7 P.3d 1144 (2000).
45
When the legislature enacted the KTCA, the legislature waived governmental
liability for tort claims, subject to many exceptions. K.S.A. 2015 Supp. 75-6103(a). The
KTCA does not create a new cause of action; instead, it merely removed the State's
ability to assert immunity as a defense unless one of the many exceptions applies. See
Gehring v. State, 20 Kan. App. 2d 246, 251, 886 P.2d 370 (1994). "[T]he KTCA makes
liability the rule and immunity the exception, and the burden is on the State to establish it
is entitled to any of the stated exceptions." Chelf v. State, 46 Kan. App. 2d 522, 525, 263
P.3d 852 (2011).
Two exceptions to liability under the KTCA include the discretionary function
exception and the enforcement of or failure to enforce a law exception. K.S.A. 2015
Supp. 75-6104(e), the discretionary function exception, states that the government and its
employees acting within the scope of the employment shall not be liable for "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.
2015 Supp. 75-6104(c), the enforcement exception, states that the government and its
employees acting within the scope of the employment shall not be liable for the
"enforcement of or failure to enforce a law, whether valid or invalid, including, but not
limited to, any statute, rule and regulation, ordinance or resolution."
Moreover, K.S.A. 2015 Supp. 75-6103(a) states:
"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."
Stated another way, "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
46
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). "A statute waiving [state's]
immunity must be strictly construed and [a] court has no right to enlarge the scope of the
statute or to amend law by judicial interpretation." Brown v. State Highway Commission,
206 Kan. 49, 476 P.2d 233 (1970).
K.S.A. 2015 Supp. 75-6103(a)
The State's first argument regarding sovereign immunity is that the plain language
of K.S.A. 2015 Supp. 75-6103(a) establishes it has not waived sovereign immunity.
Specifically, the State hones in on the language stating that a government entity is only
liable "if a private person, would be liable under the laws of this state." K.S.A. 2015
Supp. 75-6103(a). Then, the State cites Prager v. Kansas Dept. of Revenue, 271 Kan. 1,
20 P.3d 39 (2001), in support of its argument. Hill responds by simply stating that
"[b]ecause a private person would be liable for committing the tort of retaliation and
discrimination based upon public policy as provided by K.S.A. 75-2949(g), the State of
Kansas through K.S.A. 75-6103(a) has waived sovereign immunity."
In Prager, Prager sought damages against the Kansas Department of Revenue and
a few of its employees for depriving him of his rights to free speech both under the
United States and the Kansas Constitutions. 271 Kan. at 32. Citing K.S.A. 75-6103(a) of
the KTCA, the Department of Revenue argued that "because the KTCA provided that a
governmental entity would be liable only if a private person would be liable and there
was no statutory or common-law cause of action by which a private person could be
found liable for deprivation of Prager's constitutional rights, then neither the Department
nor [its employees] could be held liable for violation of Prager's constitutional rights."
Prager, 271 Kan. at 32. Our Supreme Court agreed with the Department of Revenue,
explaining:
47
"The language of K.S.A. 75–6103(a) is plain that the government could only be
liable under the KTCA 'under circumstances where the governmental entity, if a private
person, would be liable under the laws of this state.' Under this language, a governmental
entity bears no greater liability than would a private person or entity operating in the
private sector, and a plaintiff seeking recovery under the KTCA must raise a recognized
tort action. [Citation omitted.]
"Prager has failed to cite any Kansas case permitting a private person or entity to
be found liable for money damages for interfering with someone's right of free speech
under either the United States or Kansas Constitutions." Prager, 271 Kan. at 36-37.
Despite Hill's assertions to the contrary, the analysis in Prager is equally
applicable to his case. Prager establishes that the State can only be liable to the extent
that a private person would be liable, and a private person can only be liable for a
recognized tort action. Nevertheless, Hill has not cited any authority where a private
person was liable for a common-law tort of retaliatory job placement. Recognizing that
this would be the first time in Kansas history that such an action was allowed, Hill has
tried to establish that this is a valid tort. As already discussed at length, however, Hill has
not raised a valid tort claim because a lateral change in job placement does not constitute
retaliation. Accordingly, Hill has not raised a recognized tort action.
In turn, a private person would not and could not be liable for Hill's alleged
retaliatory job placement claim under the laws of the state. 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). Furthermore, because the discretionary
function exception and the enforcement or failure to enforce the law exceptions are only
applicable when a plaintiff brings a recognized tort action against a governmental entity,
no further analysis regarding the applicability of these exceptions is necessary.
48
In summary, the State did not waive its immunity. Accordingly, the trial court
erred when it found otherwise in denying the State's motion to dismiss. As a result, we
reverse.
Conclusion
The State and Garcia's arguments concerning the KJRA and Hill bringing a private
right of action fail. Nevertheless, the State and Garcia have successfully established (1)
that Hill's suit for retaliatory job placement cannot proceed because it is not a valid
common-law tort and (2) that Hill's suit against the State is barred under K.S.A. 2015
Supp. 75-6103(a) because Hill is not suing for a recognized tort. Accordingly, the trial
court erred when it denied the State and Garcia's respective motions to dismiss. As a
result, we reverse the trial court's ruling and dismiss Hill's action.
Did the Trial Court Err by Granting the State's and Garcia's Motion for Summary
Judgment?
Next, assuming arguendo that Hill's retaliatory job placement is a recognized tort,
we determine that the trial court did not err when it granted summary judgment in favor
of the State and Garcia.
In his appellant's brief, Hill argues that the trial court erred when it granted the
State and Garcia's motion for summary judgment for two reasons. First, Hill argues that
he presented sufficient evidence to establish a prima facie case of "retaliatory transfer."
Then, Hill argues that he presented sufficient evidence to create a genuine issue of
material fact as to whether the real reason the KHP transferred him to Troop E was in
retaliation for appealing his dismissal under K.S.A. 75-2949(g). The State and Garcia
counter that the trial court correctly granted their motion for summary judgment because
Hill both failed to establish a prima facie case of retaliation and failed to establish that
49
their critical shortage of troopers in Troop E explanation for why Hill was placed in
Troop E was a mere pretext.
Standard of Review
An appellate court exercises de novo review over a trial court's decision to grant
summary judgment. Hansford v. Silver Lake Heights, 294 Kan. 707, 710, 280 P.3d 756(2012). Our Supreme Court has explained:
"Summary judgment is appropriate when the pleading, 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." Mitchell v. City of Wichita, 270 Kan. 56, Syl. ¶ 1, 12 P.3d 402 (2000).
Thus, summary judgment is appropriate only when both the facts and the law of a case
establish that the plaintiff is not entitled to relief. Yet, only facts that affect a controlling
issue constitute genuine issues of material facts. Northern Natural Gas Co. v. ONEOK
Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013).
Burden Shifting Approach in Employment Retaliation Cases
All parties agree that in employment cases, the plaintiff must establish a prima
facie case of retaliation. Again, before this case, Kansas courts have dealt with cases
50
involving retaliatory discharges or retaliatory demotions. See Brigham, 262 Kan. at 20. In
the retaliatory discharge and retaliatory demotion cases, our courts have explained that
the elements of a prima facie case generally occur when (1) the plaintiff exercised a
statutory or constitutional right; (2) the employer had knowledge of the plaintiff's
exercise of that right; (3) the employer discharged or demoted the plaintiff; and (4) a
causal connection between the protected activity and the discharge or demotion existed.
Rebarchek v. Farmers Co-op Elevator & Mercantile Ass'n, 272 Kan. 546, Syl. ¶ 4, 35
P.3d 892 (2001). Because this case does not involve a discharge or demotion, however,
the trial court substituted the language in prong three and prong four with "adverse
employment action." The parties seem to be in agreement that this generalized language
is appropriate. Moreover, this makes practical sense since the core of prong three is that
the employer took some retaliatory action against the employee-plaintiff.
Accordingly, the following generalized standard for establishing a prima facie
case of retaliation is appropriate in this case. To establish a prima facie case of retaliation
plaintiffs must show the following: (1) that they had engaged in a protected activity; (2)
that the employer knew they had engaged in a protected activity; (3) that the employer
then took some adverse employment action against them; and (4) that this adverse
employment action is causally connected to their use of the protected activity. Once
plaintiffs have proven that a prima facie case exists, there is a rebuttable presumption of
retaliatory intent. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1276, 38 P.3d 679(2002).
An employer may then refute this rebuttable presumption of retaliatory intent by
producing a legitimate and nondiscriminatory reason for the action. Bracken, 272 Kan. at
1276. If the employer provides a legitimate and nondiscriminatory reason for the action,
employees "must assert specific facts establishing a triable issue as to whether the
employer's reason for the discharge is a mere cover-up or pretext." Bracken, 272 Kan. at
1276. "'If no facts relating to the pretextuality of the defendant's action remain in dispute,
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summary judgment is appropriate.' [Citation omitted.] On the other hand, should the
plaintiff come forth with a prima facie case and evidence that the defendant's reasons are
a pretext, the case must go to the jury. [Citation omitted.]" Bracken, 272 Kan. at 1276. A
plaintiff need only establish that the employer's reasons are pretextual by a preponderance
of the evidence at the summary judgment stage. Bracken, 272 Kan. at 1276-77.
Nevertheless, a plaintiff cannot survive a summary judgment motion and establish that
the employer's reasons were pretextual by relying on inferences, speculation, or
conjecture. See Lloyd v. Quorum Health Resources, LLC, 31 Kan. App. 2d 943, 954, 77
P.3d 993 (2003); see also Wilson v. McDaniel, No. 109,898, 2014 WL 3019946, at *9
(Kan. App. 2014) (unpublished opinion) (holding that "speculation and conjecture are
insufficient to avoid summary judgment"); and Morgan v. Hilti, Inc., 108 F.3d 1319,
1323 (10th Cir. 1997), quoting Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th
Cir. 1988) (holding that "'[m]ere conjecture that [the] employer's explanation is a pretext
for intentional discrimination is an insufficient basis for denial of summary judgment'").
Hill Fails to Establish a Prima Facie Case of Retaliation
Accordingly, the first step this court must consider for summary judgment
purposes is whether Hill established a prima facie case of retaliation. Again, the trial
court found that Hill failed to establish a prima facie case of retaliation because although
he established the first two prongs of a prima facie case of retaliation, he failed to
establish (1) that the KHP took some adverse employment action against him by placing
him in Troop E or (2) that his placement in Troop E was causally connected to his appeal
to the KCSB.
Adverse Employment Action
Regarding the trial court's finding that he failed to establish that the KHP took an
adverse employment action by placing him in Troop E, Hill responds that he did establish
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that his placement in Troop E constituted adverse employment action for two reasons.
First, Hill points to the fact that K.S.A. 75-2949(g) has very broad language. It seems Hill
argues that because this language is so broad, stating that discipline or discrimination
against an employee for using the appeal procedures "in any way" is inappropriate, his
placement in Troop E might constitute an adverse employment action. This is the same
logic Hill used while attempting to show that a "retaliatory transfer" constituted a viable
tort under the public policy exception to at-will employment.
Yet, the fact that a job placement might be made for retaliatory purposes and the
fact that it might fit within the scope of disciplinary or discriminatory actions as stated
under K.S.A. 75-2949(g), does not mean that a job placement constituted an adverse
employment action. Here, to establish a prima facie case of retaliation, Hill had to
establish that his job placement in Troop E was actually adverse. As explained in the
preceding section, typically plaintiffs suing for retaliation must establish that they were
discharged or demoted. Discharges and demotions come with major negative
consequences, including loss of pay, loss of benefits, and loss of status. In short, for
something to be adverse, it must be unfavorable, disadvantageous, or harmful in some
way.
Accordingly, Hill's argument that his placement in Troop E might fit within the
definition of the discipline and discrimination discussed in K.S.A. 75-2949(g) consists of
that common fallacy of begging the question because his argument assumes his transfer
was an adverse employment action. As a result, the argument does not lessen the trial
court's finding that Hill failed to establish his placement in Troop E constituted an
adverse employment action.
Hill's second argument regarding why he established that his job placement in
Troop E was an adverse employment action is equally unpersuasive. Hill contends that
the fact that he was the only trooper that was "involuntarily transferred" in decades is per
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se evidence that his placement in Troop E constituted an adverse employment action.
Nevertheless, Hill's argument misses the point. Involuntary transfers are not necessarily
always unfavorable. Hill assumes just what he is trying to prove: that the involuntary
transfer was unfavorable. Here, Hill uses his conclusion as a premise. More importantly,
assuming that Hill was "involuntarily transferred" versus "assigned," Hill has failed to
explain how the involuntary transfer negatively affected his employment as a trooper
with the KHP.
Moreover, it is readily apparent that Hill fails to include such an explanation
because any involuntary transfer did not negatively impact his employment. A transfer,
whether voluntary or involuntary, does not affect a trooper's pay or benefits. Moreover,
the involuntary transfer was not a form of punishment for the following reasons: (1)
Garcia, as the superintendent of the KHP, had the discretion to transfer troopers
whenever and wherever he pleased and (2) Hill accepted his position as a trooper
knowing and agreeing that he could be transferred whenever and wherever the
superintendent desired.
Most importantly, Hill's arguments ignore that the uncontroverted evidence
establishes his placement in Troop E was not unfavorable in any way. As discussed in the
trial court's order granting summary judgment, Hill received the same pay, benefits,
status, responsibility, and rank upon his placement in Troop E. Thus, nothing within the
record and nothing Hill has argued supports that his job placement in Troop E constituted
adverse employment action. This clearly contravenes Kansas' rule that plaintiff suing for
the common-law tort of retaliation must establish that the employer took some negative
action because the plaintiff invoked a protected right. See Rebarchek, 272 Kan. 546, Syl.
¶ 4.
Additionally, this conclusion is supported by cases from the United States Tenth
Circuit Court of Appeals. For example, in Lunow v. City of Oklahoma City, 61 Fed.
54Appx. 598, 605 (10th Cir. 2003) (unpublished opinion), the Tenth Circuit held that a fire
department's decision to transfer a firefighter to a different shift at a different station,
which the firefighter considered to have subpar equipment and to be located "out of the
mainstream," did not constitute adverse action for 42 U.S.C. § 1983 action purposes. In
Tran v. Trustees of State Colleges in Colorado, 355 F.3d 1263, 1267-68 (10th Cir. 2004),
the Tenth Circuit held that a state college employee could not prove adverse action under
Title VII of the Civil Rights Act of 1964, following her job reassignment when the facts
established that the reassignment was merely an inconvenience and did not result in the
loss or employment, compensation, or benefits.
Although these cases involve different statutory issues, their holdings are helpful
because it supports that in order for Hill to successfully make a prima facie showing of
adverse employment action, he cannot simply provide evidence establishing his
disappointment in being transferred to Troop E. Instead, Hill must provide evidence
demonstrating that his placement in Troop E was actually adverse. Because Hill failed to
do this, he failed to establish a prima facie case of retaliation. Accordingly, the trial court
did not err when it granted summary judgment in favor of the State and Garcia.
Causal Connection
Regarding the trial court's finding that Hill failed to establish a causal connection
between his successful appeal to the KCSB and his placement in Troop E, Hill responds
that he established a causal connection because of the close proximity in time between his
successful appeal and his placement in Troop E. Hill argues that it is obvious that his
placement in KHP was related to his successful KCSB appeal because Garcia's letter
telling him he would have to report to Troop E was written just 7 days after the KCSB
issued its written order reinstating him as a trooper. He further argues that the fact the
KHP denied his hardship requests and make-a-wish voluntary transfer requests supports
that there is a causal connection between his successful KCSB appeal and his placement
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in Troop E. Citing White v Tomasic, 31 Kan. App. 2d 597, 602, 69 P.3d 208 (2003), Hill
then emphasizes that all that is required to prove the causal connection to establish a
prima facie case of retaliation is circumstantial evidence.
"Proximity in time between the claim and discharge [or in this case job placement] is a
typical beginning point for proof of a causal connection. [Citation omitted.] Close
temporal proximity between [the invocation of a protected right] and the adverse
employment action may be 'highly persuasive evidence of retaliation.'" (Emphasis added.)
White, 31 Kan. App. 2d at 602.
Undoubtedly, the short time between the KCSB order reinstating Hill from his
dismissal and the letter from Garcia placing Hill in Troop E leans in Hill's favor in
establishing that a causal connection exists. Yet, this evidence alone is very weak. In
essence, Hill's argument is post hoc and can be broken down into the following
syllogism: (1) The KCSB order amending his dismissal to a suspension was issued before
Garcia sent the letter stating that his new job placement would be in Troop E; and (2)
therefore, the KCSB order amending his dismissal to a suspension must have caused his
new job placement in Troop E. Obviously, Hill would not have been reinstated without
the successful KCSB appeal. Nevertheless, the KCSB order did not necessarily result in
Hill's retaliatory placement in Troop E. There are a variety of reasons why the KHP
might have placed Hill in Troop E. This is likely why this court has previously explained
"[t]he fact that the claim preceded termination does not, by itself, establish cause and
effect." Lopez-Vargas v. Russell Stover Candies, Inc., No. 92,225, 2004 WL 3048956, at
*3 (Kan. App. 2004) (unpublished opinion).
Moreover, in the light most favorable to Hill, the denials of Hill's transfer requests
do not help establish Hill's causal connection argument. Even without considering the
State and Garcia's explanations for why Hill's hardship and make-a-wish transfer requests
were denied, KHP policy provides that these requests can be denied for any reason.
Additionally, the only basis for an interpretation that those requests were denied in
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retaliation is that Hill says they were denied in retaliation. This court, however, has held
that "[a]n employee's beliefs and feelings were insufficient to establish the required nexus
between the employee's discharge and any protected activity." Bracken, 272 Kan. at
1277, citing Blackwell v. Shelter Mut. Ins. Co., 109 F.3d 1550 (10th Cir. 1997).
Accordingly, the denial of the transfer requests cannot support Hill's argument that a
causal connection exists.
As a result, all that remains in support of the causal connection is Hill's post hoc
argument that because his placement in Troop E followed closely after his successful
KCSB appeal, it must have been the result of his successful KCSB appeal. As previously
stated, however, close proximity in time between the employee's invocation of a
protected right and the alleged adverse employment action cannot be the only evidence
supporting a causal connection. See Lopez-Vargas, 2004 WL 3048956, at *3. Thus, Hill
has not provided sufficient evidence to establish a prima facie case that a causal
connection between the successful KCSB appeal and his placement in Troop E exists
based on what he has argued on appeal. Consequently, the trial court did not err when it
found that Hill had failed to establish a causal connection existed, and it also did not err
when it granted the State and Garcia's motion for summary judgment.
Conclusion
To conclude, Hill failed to present evidence to establish a prima facie case of
retaliation because there was no evidence that his placement in Troop E constituted
adverse employment action. Nevertheless, even if there was evidence supporting that
Hill's placement in Troop E constituted an adverse employment action, summary
judgement was still appropriate because Hill failed to provide evidence establishing a
causal connection between his successful KCSB appeal and his job placement in Troop
E. As a result, the trial court did not err by granting the State and Garcia's motion for
summary judgment on these bases.
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Hill Fails to Establish That the State and Garcia's Reasons for Placing Him in
Troop E Were a Pretext
Finally, it is important to explain that even if Hill had established a prima facie
case of retaliation, Hill would be unable to overcome his burden of proving that the State
and Garcia's explanation for the reason why he was placed in Troop E was pretextual.
To review, the State and Garcia asserted that the reason Hill was placed in Troop
E upon his return from suspension was because Troop E was suffering a critical shortage
of troopers, worse than anywhere else in the State. Since the State and Garcia provided a
nonretaliatory reason for Hill's job placement in Troop E, the burden shifted back to Hill
to establish that this reason was a mere pretext. See Rebarcheck, 272 Kan. at 553. In
granting summary judgment, the trial court, however, found that Hill was not capable of
meeting this burden.
On appeal, Hill asserts that the trial court erred when it made this finding because
the following facts support that the critical shortage troopers explanation was just a
pretext: (1) Garcia's "involuntary transfer" of Hill to Troop E is the first "involuntary
transfer" known of in the history of the KHP; (2) Garcia continued to place new troopers
in divisions other than Troop E, including Troop H; (3) Garcia refused to consider
placing him back in Troop H, even after the president of the troopers association told
Garcia that it might look like retaliation; (4) Garcia denied his hardship request, even
when he granted two other trooper's hardship requests; and (5) Garcia granted his transfer
request to the turnpike because he was contractually obligated to do so. Nevertheless,
there are problems with each of Hill's arguments.
First, regarding Hill's argument that he was the only trooper in decades to be
"involuntarily transferred," as discussed already, the "transfer" versus "assignment"
debate is truly irrelevant to the outcome of the case. What is important is the following:
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(1) whether there was evidence that Hill's job placement in Troop E, instead of Troop H,
following his successful KCSB appeal was unusual under KHP policy and (2) whether
there was any retaliatory motive behind this placement. Yet, as the State and Garcia point
out in their brief, Hill was the only known trooper to have successfully appealed his
dismissal to the KCSB. Consequently, the KHP was dealing with an unprecedented
situation. This means that Hill cannot prove that he was being retaliated against by the
KHP based on his successful KCSB appeal by pointing to cases where other troopers
were treated differently. Moreover, Hill cannot simply state that his "involuntary transfer"
was retaliatory because no other trooper had been involuntarily transferred in recent
memory. Instead, because the sum of Hill's predicament is unique, Hill must come up
with other reasons why his placement in Troop E was retaliatory.
Accordingly, the entirety of Hill's argument that the "involuntary transfer" was
retaliatory is based on his belief that it was retaliatory, and nothing else. Again, to
successfully prove that an employer's explanation is a pretext, a plaintiff cannot rely on
pure speculation. See Lloyd, 31 Kan. App. 2d at 954. Hill's belief, however, is nothing
more than speculation. Thus, Hill's reliance that no other known trooper has been
"involuntarily transferred" is unpersuasive for purposes establishing that the critical
trooper shortage explanation is a pretext.
Second, Hill's argument that the KHP continued to place other troopers in other
divisions of the State, including Troop H, also falls short. In arguing that the KHP's
placement of other troopers in other divisions around the State, Hill never controverts the
evidence suggesting that all divisions, Troop A-H, were suffering shortages while he was
placed in Troop E. Hill never controverts the command staff testimony that they decided
to place Hill in Troop E because that was the division in greatest need when Hill was
reinstated as a trooper. Hill also never refutes Lieutenant Colonel Stoecklein's and Major
Goodloe's explanations that Hill's placement in Finney County within Troop E was
beneficial to the troop. For one thing, because Hill was a trained trooper, he could help
59
train the two new recruits on patrol in Finney County. Accordingly, the fact that the KHP
placed troopers in divisions other than Troop E while Hill was working in Troop E, in no
way undermines the State and Garcia's explanation that Hill was placed in Troop E based
on the critical shortage of troopers in that division. Thus, Hill has failed to establish that
the State and Garcia's argument was a pretext through this argument.
Third, Hill's argument that Garcia refused to consider placing him back in Troop
H, even after the president of the KTSA told Garcia that it might look like retaliation, is
patently meritless. Whether the president of the KTSA told Garcia that Hill's placement
in Troop E may look like retaliation and whether the State and Garcia's critical shortage
of troopers explanation for Hill's placement constitutes a pretext are totally unrelated
points. The KTSA president's belief that Hill's placement in Troop E might look like
retaliation is no more useful than Hill's belief that his placement in Troop E constituted
retaliation. It is an opinion that does not disprove or undermine the State and Garcia's
explanation for why Hill was placed in Troop E. Therefore, this argument also fails to
establish that the State and Garcia's argument was a pretext.
Fourth, Hill's argument that Garcia denied his hardship transfer requests while
granting two other trooper's hardship requests does not establish that the State and
Garcia's critical shortage of troopers in Troop E explanation was a pretext. To begin with,
as with his previous arguments, this argument is pure speculation. Hill guesses that
Garcia denied his requests based on retaliation without providing any further detail. This
reason, in and of itself, is enough to reject Hill's argument. See Lloyd, 31 Kan. App. 2d at
954 (holding that speculation and conjecture are not enough to prevent summary
judgment).
Moreover, in making this argument, Hill does not controvert the following
evidence, which entirely undermines any argument that the denial of his hardship request
was retaliatory: (1) that there was a critical shortage of troopers in Troop E when he made
60
the request; (2) that he made the hardship request before he even reported for duty in
Troop E; (3) that he wanted the transfer to take care of an extended family member, while
the troopers whose requests were granted wanted the transfer to take care of immediate
family members; (4) that he failed to provide additional medical documents supporting
his hardship transfer request when asked, and the other troopers whose requests were
granted provided those additional medical documents; and (5) that Captain Maier
recommended the request be denied, which in turn led to Lieutenant Colonel Stoecklein
suggesting to Garcia that the request be denied. In short, all of this evidence provides a
clear and legitimate basis for why Hill's requests were denied and why the other trooper's
requests were granted. Most importantly, Hill's speculative allegation neither undercuts
this evidence nor establishes that the State and Garcia's critical shortage of troopers in
Troop E explanation was really a pretext.
Fifth, Hill's argument that his ultimate transfer to the Troop G turnpike division
establishes that the State and Garcia's explanation was a pretext is meritless. Hill asserts
that Troop G positions are filled by seniority is proof that when Garcia's discretion to
deny a transfer was removed, he received the transfer. Nonetheless, this argument hinges
on the assumption that Garcia refused to grant Hill's other transfer requests for retaliatory
reasons. In other words, the fact that Garcia transferred Hill to Troop G is noteworthy
only if one accepts the premise that Garcia denied the other transfer requests to retaliate
against Hill for his successful KCSB appeal. As addressed in the preceding paragraphs,
however, his belief that his requests were denied based on retaliation is speculative and
not supported by the evidence. Hence, because Hill's argument regarding his transfer to
Troop G hinges on his already disproven subjective arguments, it also necessarily fails.
Moreover, as a final note on Hill's fifth argument, although he has suggested that a
contract with the Kansas Turnpike Authority requires that the KHP superintendent fill
vacancies within Troop G by seniority, Hill has never asserted, nor is there any evidence
indicating, that the KHP superintendent can simply choose not to fill the vacant positions
61
within Troop G. Thus, if Garcia wanted to, he could have chosen not to grant Hill's
transfer request to Troop G. Accordingly, the fact that Garcia decided to grant Hill's
transfer to Troop G actually supports that he was not angry at Hill, since by moving to
Troop G, Hill got both a raise and better benefits. In addition, the move allowed Hill to be
closer to his mother, whom he wanted to help if the need occurred. It certainly does not
help establish that the State and Garcia's critical shortage of troopers in Troop E
explanation was a pretext.
In conclusion, Hill failed to establish a prima facie case of retaliatory placement.
Yet, even if he had established a prima facie case of retaliatory placement, he has failed
to establish that the State and Garcia's critical shortage of troopers in Troop E explanation
was a mere pretext. Thus, the trial court properly granted the State and Garcia's motion
for summary judgment.
Affirmed in part, reversed in part, and dismissed.
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