Martley v. Basehor, Kansas, City of
537 F.Supp.3d 1260
D. Kan.2021Background
- Lloyd Martley served Basehor as Police Chief and (interim and then full) City Administrator from 2009–2018; he reported combined compensation to the Kansas Police and Fire Retirement System (KPF) and was paid about $37–$39k for the Administrator duties in 2016–2018.
- After Martley retired, Basehor hired Leslee Rivarola (a woman) as City Administrator in January 2019 and paid her higher wages/benefits; Martley sued under the Equal Pay Act (EPA) in March 2019 alleging pay disparity.
- In January 2020 Rivarola requested that the Leavenworth County Sheriff investigate Martley’s KPF retirement reporting, provided documents (including a 2014 email from Martley and a legal “Case Assessment”), and communicated with the Sheriff about KPERS information before mediation.
- Martley alleges the criminal referral was retaliation for his EPA suit and also pleads a First Amendment retaliation claim; he sued Rivarola individually on both retaliation theories in his third amended complaint.
- Rivarola moved to dismiss both retaliation claims, arguing (inter alia) that referral of an investigation is not an adverse action and that she is entitled to qualified immunity.
- The court dismissed both retaliation claims against Rivarola without prejudice and dismissed Rivarola from the case (May 7, 2021).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rivarola’s referral/instigation of a criminal investigation constitutes an "adverse action" for an EPA retaliation claim | Martley: the referral occurred after he filed his EPA claim and the investigation was intended to and did retaliate by harming his ability to defend and chilling enforcement | Rivarola: mere instigation of an investigation (no charges, trial, or publicity pled) is speculative and not the kind of concrete harm that would dissuade a reasonable worker | Court: Investigation alone, as pleaded, shows only speculative harm; not an adverse action — EPA retaliation claim dismissed without prejudice |
| Whether Rivarola’s conduct states a First Amendment retaliation claim and whether qualified immunity bars suit | Martley: referral was retaliatory against his protected speech/petitioning (suit) and would chill an ordinary person | Rivarola: same lack of concrete chilling harm; even if cognizable, the law was not clearly established and she is entitled to qualified immunity | Court: First Amendment claim fails for same reasons as EPA claim; qualified immunity applies under controlling precedent (claim not clearly established) |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (establishes pleading standard for factual plausibility)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standard requiring more than speculative allegations)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (adverse-action standard: would dissuade a reasonable worker)
- Berry v. Stevinson Chevrolet, 74 F.3d 980 (criminal prosecution can constitute adverse action)
- Dick v. Phone Directories Co., 397 F.3d 1256 (filing a police report may not be an adverse action when no charges/publicity follow)
- Lincoln v. Maketa, 880 F.3d 533 (criminal investigation does not necessarily create adverse action; qualified immunity where law is not clearly established)
- Van Deelen v. Johnson, 497 F.3d 1151 (intimidation to deter petitioning can violate First Amendment; distinguishable from referral-to-police conduct)
- Allen v. Garden City Co-op, 651 F. Supp. 2d 1249 (elements for an EPA retaliation claim)