Stimatze v. Geary County, Kansas, Board of Commissioners

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

MICHELE STIMATZE,

Plaintiff,

v.

Case No. 23-CV-4052-EFM

BOARD OF COUNTY COMMISSIONERS

FOR GEARY COUNTY, KANSAS

Defendants.

MEMORANDUM AND ORDER

Before the Court is Defendant Board of County Commissioners for Geary County (the

“Board”)’s Motion to Dismiss (Doc. 13).1 In Count I, Plaintiff Michele Stimatze brings a freedom

of speech retaliation claim under 42 U.S.C. § 1983. In Count II, Plaintiff brings a retaliatory

discharge claim under Kansas public policy. The Board seeks to dismiss both claims for failure to

state a claim upon which relief can be granted. For the reasons stated herein, the Court grants the

Board’s Motion to Dismiss.

I. Factual and Procedural Background2

The Board is a local governmental agency in Kansas responsible for implementing,

promulgating, and establishing policies, customs, and usages within Geary County. In January

2017, the Board hired Plaintiff as the Director of Geary County’s Convention and Visitor’s Bureau

1 Originally, this Motion to Dismiss was jointly brought by Defendants Patricia Giordano and the Board.

However, on February 6, 2024, the Court granted Plaintiff’s request to voluntarily dismiss Giordano from this case.

As such, the Board is the only remaining defendant.

2 The facts in this section are taken from Plaintiff’s Amended Complaint unless otherwise cited.

(the “CVB”). Between 2017 and 2020, Plaintiff received favorable employment evaluations by the

Board, wherein the Board characterized Plaintiff’s work product as “good” and “excellent.”

In January 2021, Patricia Giordano was elected to the Geary County Board of County

Commissioners. In her elected capacity, Giordano possessed supervisory authority over Plaintiff.

Shortly after Giordano’s election, Plaintiff began noticing Giordano engage in troubling behavior.

For example, Giordano would request that Plaintiff allocate funds to certain line items without the

Board’s approval, which was required pursuant to County policy. Further, Giordano would

interfere with Plaintiff’s efforts to improve the CVB by refusing to provide it with necessary

funding.

In Spring 2021, shortly after Giordano’s election, Plaintiff began expressing her

dissatisfaction with how the Board handled certain issues, specifically raising the issue of

Giordano’s impropriety. She voiced these concerns both at the Board’s monthly public meetings

and openly to the public. Upon Plaintiff’s expression of dissatisfaction, Giordano began sending

Plaintiff harassing emails, making disparaging comments about Plaintiff and her department to the

public, and communicating combatively with Plaintiff. Around June 29, 2021, the Board

constructively discharged Plaintiff from her employment as the Director of the CVB.

Plaintiff filed suit on June 27, 2023. On December 11, 2023, Defendant filed this Motion

to Dismiss. Plaintiff timely responded, and Defendants timely replied. Thus, the matters are fully

briefed and ripe for the Court’s ruling.

II. Legal Standard

Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the

plaintiff has failed to state a claim upon which relief can be granted.3 Upon such motion, the court

3 Fed. R. Civ. P. 12(b)(6).

must decide “whether the complaint contains ‘enough facts to state a claim to relief that is plausible

on its face.’”4 A claim is facially plausible if the plaintiff pleads facts sufficient for the court to

reasonably infer that the defendant is liable for the alleged misconduct.5 The plausibility standard

reflects the requirement in Rule 8 that pleadings provide the defendants with fair notice of the

nature of claims as well the grounds on which each claim rests.6 Under Rule 12(b)(6), the court

must accept as true all factual allegations in the complaint, but need not afford such a presumption

to legal conclusions.7 Viewing the complaint in this manner, the court must decide whether the

plaintiff’s allegations give rise to more than speculative possibilities.8 If the allegations in the

complaint are “so general that they encompass a wide swath of conduct, much of it innocent, then

the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’”9

III. Analysis

A. Plaintiff’s § 1983 Claim

Plaintiff brings a freedom of speech retaliation claim under § 1983 against the Board. She

alleges that the Board deprived her of her constitutional rights by constructively discharging her

from her employment in retaliation for her speech. The Board argues that Plaintiff’s allegations

fail to plausibly allege a freedom of speech retaliation claim.

4 Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

5 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

6 See Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) (citations omitted); see also Fed. R. Civ.

P. 8(a)(2).

7 Iqbal, 556 U.S. at 678–79.

8 See id. (“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” (citation omitted)).

9 Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570).

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.”10 Here, Plaintiff alleges that the Board

violated her First Amendment right to free speech. However, Plaintiff is a government employee,

and the Supreme Court has “made clear a governmental employer may restrict speech made

pursuant to an employee’s official duties.”11 In light of this precedent, the Tenth Circuit employs

a five-step inquiry for First Amendment retaliation claims called the “Garcetti/Pickering”

analysis.12 The elements for this analysis are:

(1) whether the speech was made pursuant to an employee’s official duties; (2)

whether the speech was on a matter of public concern; (3) whether the

government’s interests, as employer, in promoting the efficiency of the public

service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether

the protected speech was a motivating factor in the adverse employment action; and

(5) whether the defendant would have reached the same employment decision in

the absence of the protected conduct.13

The first three steps pose “issues of law to be decided by the court.”14

Here, the Board challenges Plaintiff’s claim only at the first and second steps of the

analysis. Thus, the Board insists that Plaintiff did not speak as a private citizen but pursuant to her

official duties. Moreover, the Board claims that the subject of Plaintiff’s speech was not a matter

of public concern. The Court will address each argument in turn.

10 Knipe v. Leavenworth, 2024 WL 3471332, at *1 (D. Kan. July 19, 2024) (citing West v. Atkins, 487 U.S.

42, 48 (1988)).

11 Chavez-Rodriguez v. City of Santa Fe, 596 F.3d 708, 713 (10th Cir. 2010) (citing Garcetti v. Ceballos, 547

U.S. 410, 421 (2006)).

12 Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202–03 (10th Cir. 2007) (synthesizing

Garcetti v. Ceballos, 547 U.S. 410 (2006); and Pickering v. Bd. of Educ., 391 U.S. 563 (1968)).

13 Klaassen v. Atkinson, 348 F. Supp. 3d 1106, 1166 (D. Kan. 2018) (quoting Dixon v. Kirkpatrick, 553 F.3d

1294, 1302 (10th Cir. 2009)).

14 Id.

1. Plaintiff spoke as a private citizen.

Plaintiff maintains that her comments at the Board’s public monthly meetings and to the

general public were made in her capacity as a private citizen. The Board disagrees, asserting that

this speech was made within Plaintiff’s official capacity as Director of the CVB. The Court must

examine these statements and the surrounding context to determine whether Plaintiff spoke as a

private citizen or within her official capacity.

Plaintiff served as a public employee within her role as Director of the CVB. To promote

“the efficient provision of public services,” government employers “need a significant degree of

control over their employees’ words and actions.”15 Otherwise, the expressed views of public

employees can “contravene governmental policies or impair the proper performance of

governmental functions.”16 Yet, “public employees do not surrender all their First Amendment

rights by reason of their employment. Rather, the First Amendment protects a public employee’s

right, in certain circumstances, to speak as a citizen addressing matters of public concern.”17

When addressing a free speech retaliation claim, courts must “take a practical view of all

the facts and circumstances surrounding the speech and the employment relationship.”18 This

includes considering the employee’s audience and whether the conversation operated within her

official duties or within her role as ordinary citizen.19 “[N]ot all speech that occurs at work is made

15 Garcetti, 547 U.S. at 418.

16 Id. at 419.

17 Id. at 417.

18 Brammer-Hoelter, 492 F.3d at 1204 (10th Cir. 2007).

19 E.g., Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 748 (10th Cir. 2010) (“The speech protected

by Brammer-Hoelter, however, occurred after hours in groups including ordinary citizens . . . . Unlike the plaintiffs

in Brammer-Hoelter, however, Rohrbough spoke only to Hospital employees and only about matters within the scope

of her duties as a nurse and Transplant Coordinator.” (emphasis added) (citations omitted)); Klaassen, 348 F. Supp.

3d at 1167.

pursuant to an employee’s official duties,” and not “all speech about the subject matter of an

employee’s work [is] necessarily made pursuant to the employee’s official duties.”20 However,

“[i]f the employee speaks pursuant to his official duties, then there is no constitutional protection

because the restriction on speech ‘simply reflects the exercise of employer control over what the

employer itself has commissioned or created.’”21

“The guiding principle is that speech is made pursuant to official duties if it involves ‘the

type of activities that the employee was paid to do.’”22 Following this principle, “if an employee

engages in speech during the course of performing an official duty and the speech reasonably

contributes to or facilitates the employee’s performance of the official duty, the speech is made

pursuant to the employee’s official duties.”23 Even speech involving “activities that the employee

is not expressly required to perform” may be made pursuant to an employee’s official duties.24 “So

long as the employee’s speech “reasonably contributes to or facilitates the employee’s

performance of the official duty, the speech is made pursuant to the employee’s official duties.’”25

Here, Plaintiff alleges to have spoken in her private, individual capacity openly to the

public and openly at monthly public meetings held by the Board. Plaintiff does not elaborate on

the circumstances surrounding her expressions made openly to the public, so the Court instead

focuses on her speech at the Board’s public meetings. Notably, even unrequired attendance at a

public meeting can be considered within an employee’s official duties if she attends within her

20 Brammer-Hoelter, 492 F.3d at 1202 (citing Garcetti, 547 U.S. at 420–21).

21 Id. at 1202 (quoting Garcetti, 547 U.S. at 422).

22 Chavez-Rodriguez, 596 F.3d at 714 (brackets omitted) (quoting Green v. Bd. of Cnty. Comm’rs, 472 F.3d

794, 801 (10th Cir. 2007)).

23 Id. (citing Brammer-Hoelter, 492 F.3d at 1203).

24 Klaassen, 348 F. Supp. 3d at 1167 (citations and brackets omitted) (quoting Brammer-Hoelter, 492 F.3d

at 1203).

25 Id.

role as an employee.26 However, based on Plaintiff’s allegations, Plaintiff did not attend these

meetings within her role as Director. Instead, she alleges to have made a conscious choice as a

citizen to present her concerns to the public. This Court recognizes the “importance of promoting

the public’s interest in receiving the well-informed views of government employees engaging in

civic discussion.”27 Plaintiff’s attendance was not an activity that she was “paid to do,”28 nor did

it reasonably contribute to the performance of an official duty. Thus, it plausibly presents itself as

outside of her official duties.

Despite Plaintiff attending these meetings in her private capacity, the Board claims that the

content of Plaintiff’s speech involves her official duties. The Board argues that since Plaintiff was

Director of the CVB, any speech complaining about the allocation of funds for the CVB would

fall within her duties as Director. However, this mischaracterizes the speech that Plaintiff alleges

was the subject of the Board’s retaliation. Although the Amended Complaint does allege concerns

regarding the allocation of funding for the CVB, Plaintiff does not allege these to be the subject of

her speech. Rather, Plaintiff’s speech criticized “how issues were being handled by the Board” and

“issues of public concern regarding [Giordano’s] behavior.”

The Board suggests that vague references to “issues” do not present enough factual content

to survive Rule 12(b)(6)’s plausibility standard. Importantly, however, these statements do not

exist in a vacuum. Based on the Court’s reading of the Amended Complaint, the “issues” to which

she refers are the Board’s failure to address Giordano’s noncompliance with Geary County policy

26 Rock v. Levinski, 2014 WL 4813824, at *4 (D.N.M. Aug. 8, 2014) (recognizing that a principal’s attendance

at an after-hours, community-related event was still within her official duties since she presented herself as the

principal of the school, performed related functions to her role as a principal, and concluded the event herself); see

also Klaassen, 348 F. Supp. 3d at 1252.

27 See Garcetti, 547 U.S. at 419.

28 See Chavez-Rodriguez, 596 F.3 at 713.

and Giordano’s interference with Plaintiff’s efforts to improve the CVB. Although the allegations

are brief, the Court finds these statements adequate to proceed with its analysis of whether

Plaintiff’s speech was made pursuant to Plaintiff’s official duties.

Plaintiff’s concerns regarding the Board’s competence and Giordano’s behavior fall

outside of Plaintiff’s official duties. Comparably, in Brammer-Hoelter, the Tenth Circuit found

that the plaintiff teachers’ criticisms of the defendant school board were among the matters outside

of their official duties because the teachers lacked supervisory responsibility overs such matters.29

Additionally, if an employee complains about responsibilities that do not belong to her, but instead

to someone else, that speech falls outside the employee’s official duties.30

Here, Plaintiff lacks supervisory authority over both the Board and Giordano. The Board

employed Plaintiff, and Giordano sat as a member of the Board. Thus, criticisms of the Board’s

mismanagement and Giordano’s behavior are not matters over which Plaintiff has supervisory

responsibility. As a result, these concerns fall outside of Plaintiff’s official duties.

Viewed in the light most favorable to Plaintiff, attending public meetings in her private

capacity and lacking supervisory authority over the issues she discussed support Plaintiff’s

position that she did not speak pursuant to her official duties. Therefore, Plaintiff’s Amended

Complaint plausibly alleges that she spoke as a private citizen.

2. Plaintiff’s speech failed to address a matter of public concern.

Although Plaintiffs criticisms of Giordano and the Board were made in her private citizen

capacity, Plaintiff must also plausibly allege that the criticism involved matters of public concern.

29 See Brammer-Hoelter, 492 F.3d at 1204–05.

30 Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1332–33 (10th Cir. 2007) (holding that plaintiff’s

complaints involving responsibilities of the board members instead of her own responsibilities fell sufficiently outside

of the scope of her official duties).

“Speech involves matters of public concern when it can be fairly considered as relating to

any matter of political, social, or other concern to the community, or when it is a subject of

legitimate news interest; that is, a subject of general interest and of value and concern to the

public.”31 “Whether an employee’s speech addresses a matter of public concern must be

determined by the content, form, and context of a given statement, as revealed by the whole

record.”32 However, “[c]ourts construe ‘public concern’ very narrowly.”33

When deciding whether speech addresses matters of public concern, “the court may

consider ‘the motive of the speaker and whether the speech is calculated to disclose misconduct or

merely deals with personal disputes and grievances unrelated to the public’s interest.’”34 It is not

enough “that the public interest was part of the employee’s motivation;” the Tenth Circuit

“requires that ‘the employee’s primary purpose was to raise a matter of public concern.’”35 Even

if an employee’s primary motive was to raise matters of public concern, “an employee’s subjective

motivation, standing alone, is not determinative.”36 Thus, while it still considers motive, this Court

must ultimately address the content of the speech. “Statements revealing official impropriety

usually involve matters of public concern.”37 In contrast, “speech relating to internal personnel

31 Johnson v. Unified Sch. Dist. 507, 580 F. Supp. 3d 999, 1009 (D. Kan. 2022) (citing Lane v. Franks, 573

U.S. 228, 241 (2014)).

32 Leverington v. City of Colo. Springs, 643 F.3d 719, 727 (10th Cir. 2011) (citing Connick v. Myers, 461

U.S. 138, 147–48 (1983)).

33 Id. (citing Flanagan v. Munger, 890 F.2d 1557, 1563 (10th Cir. 1989)).

34 Klaassen, 348 F. Supp. 3d at 1171 (quoting Brammer-Hoelter, 492 F.3d at 1205).

35 Peterson v. Williams, 2022 WL 1421959, at *5 (10th Cir. May 5, 2022) (quoting Singh v. Cordle, 936 F.3d

1022, 1035 (10th Cir. 2019)).

36 Arndt v. Koby, 309 F.3d 1247, 1254 (10th Cir. 2002).

37 Brammer-Hoelter, 492 F.3d at 1205.

disputes and working conditions ordinarily will not be viewed as addressing matters of public

concern.”38

The context surrounding Plaintiff’s statements indicate that her primary motive was to raise

matters of public interest. The fact that Plaintiff’s speech occurred at meetings open to the public

and not within her workplace plausibly shows her intent to share these issues with the public.

However, the Court must also analyze the content of the speech to determine if it raises a matter

of public concern.

Reports of county employees violating county policies constitute matters of public

concern.39 Here, however, Plaintiff’s allegations fail to reach the level of particularity needed to

analyze the content of her speech. The Court can reasonably infer that Plaintiff criticized the

Board’s handling of issues and Giordano’s behavior. However, the Court must “look beyond the

general topic of the speech to evaluate more specifically what was said on the topic” when

determining if it addresses a matter of public concern.40 Although Plaintiff should know what she

said, Plaintiff fails to provide any particular statements she made at these public meetings. Instead,

Plaintiff provides general topics of what she discussed.41 Although a board of commissioners’

incompetence or a county employee’s impropriety may involve matters of public concern, the

Court requires more specificity to assess the “content, form, and context of a given statement.”42

38 David v. City & Cnty. of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996).

39 See Hawkins v. Bd of Cnty. Comm’rs of Coffey Cnty., 376 F. Supp. 3d 1200, 1213–14 (D. Kan. 2019)

(holding that criticisms of county employees violating county policies plausibly alleged a matter of public concern).

40 Moore v. City of Wynnewood, 57 F.3d 924, 932 (10th Cir. 1995) (emphasis added).

41 See Garcia v. Geier, 2017 WL 3605383, at *5 (D.N.M. Feb. 24, 2017) (citing Conaway v. Smith, 853 F.2d

789, 796 (10th Cir. 1988)) (“Plaintiff has not alleged any specific statements he made at the Union meeting, so the

Court is unable to examine the content and form of his speech”).

42 See Leverington, 643 F.3d at 727; see also Garcia, 2017 WL 3605383, at *5 (“Here, Plaintiff has not

alleged any specific statements he made at the Union meeting, so the Court is unable to examine the content and form

of his speech. However, based on the ‘myriad categories’ of speech that Plaintiff identifies in the Complaint, the Court

Thus, because Plaintiff fails to plead with particularity that her speech addressed a matter of public

concern, the Court dismisses Count I.

B. Plaintiff’s Kansas Public Policy Claim

Plaintiff claims that her constructive discharge violated Kansas public policy. The Board

seeks dismissal of this claim, arguing that because it falls under the KTCA, Plaintiff should have

provided notice to Geary County prior to filing the lawsuit, but it did not. The Court agrees that

Count II should be dismissed, but it reaches this conclusion on different grounds than those argued

by the Board.

Under the adequate alternative remedy doctrine, if an adequate federal or state statutory

remedy is available, the public policy claim under Kansas common law is precluded.43 Although

the preclusion issue was not raised before this Court, “it is well-settled that courts have discretion

to raise and decide issues sua sponte.”44 Specifically, “the Supreme Court has suggested courts

should consider ‘an issue antecedent to and ultimately dispositive of the dispute before it, even an

issue the parties fail to identify and brief.’”45 “The preclusion defense satisfies these criteria.”46 If

the adequate alternative remedy doctrine forecloses Plaintiff’s Kansas public policy claim, that

claim will necessarily fail on the merits and thus cannot serve as the basis for recovery.

To be certain, it is well-established that Kansas’s adequate alternative remedy doctrine

precludes the type of claim brought by Plaintiff. For example, in Groh v. City of Lenexa, the

has examined the context of the speech and finds it concerned Mr. Garcia’s personal grievances . . . and therefore did

not touch upon a matter of public concern.” (further citations omitted))

43 Sporleder v. U.S. Bancorp, 2019 WL 3716453, at *2 (D. Kan. Aug. 7, 2019) (citing Conner v. Schnuck

Mkts., Inc., 906 F. Supp. 606, 615 (D. Kan. 1995)).

44 Denver Homeless out Loud v. Denver, 32 F.4th 1259, 1270 (10th Cir. 2022) (further citations and

quotations omitted).

45 Id. (quoting U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993)).

46 Id.

plaintiff alleged “that she was terminated in retaliation for exercising her First Amendment right

to free speech and that this violate[d] Kansas public policy.”47 However, this Court determined

that this claim was preempted by the plaintiff’s § 1983 claim because it provided an adequate

remedy for her termination.48 More recently, this Court held in Johnson v. Unified School District

507 that the plaintiffs’ free speech retaliation claims were precluded by the adequate alternative

remedy doctrine because the § 1983 claims and retaliatory discharge claims relied on the same set

of facts.49 Thus, because the § 1983 claim provided an adequate remedy, the Court held that the

plaintiffs’ common-law retaliatory discharge claim failed.50

Like in Groh and Johnson, here, Plaintiff alleges that her constructive discharge was in

retaliation for exercising her freedom of speech. But when doing so, Plaintiff relies on the same

underlying facts from her § 1983 claim to form her state law claim. And since these claims address

the same conduct, the federal statutory remedy is sufficient to address the state’s public policy

concerns.51 Thus, given that § 1983 provides an adequate alternative remedy for Plaintiff’s alleged

harm, the Court finds that Plaintiff’s use of Kansas’s public policy exception is precluded by the

adequate alternative remedy doctrine.52 As such, Plaintiff fails to plead a retaliatory discharge

claim based on Kansas public policy, and so the Court dismisses Count II.

47 Groh v. City of Lenexa, 1991 WL 79662, at *4 (D. Kan. Apr. 16, 1991).

48 Id.

49 Johnson, 580 F. Supp. 3d at 1011.

50 Id.

51 Debus v. Burlington N. & Santa Fe Ry. Co., 157 F. Supp. 3d 1034, 1036–37 (D. Kan. 2016).

52 See id.

IT IS THEREFORE ORDERED that Defendant Board of County Commissioners for

Geary County’s Motion to Dismiss (Doc. 13) is GRANTED.

IT IS SO ORDERED.

This case is closed.

Dated this 8th day of October, 2024.

ERIC F. MELGREN

CHIEF UNITED STATES DISTRICT JUDGE

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