Opinion
Case No. 03-4023-SAC
August 21, 2003
MEMORANDUM AND ORDER
This pro se employment discrimination case comes before the court on defendants' motion to dismiss certain parties from the case. Defendant's motion is made pursuant to Fed.R.Civ.P. 12(b)(6).
In his complaint, plaintiff alleges illegal discrimination against him by his employer on the basis of his race and national origin. Plaintiff's claims are brought solely pursuant to Title VII, 42 U.S.C. § 2000e et seq. Defendants' motion to dismiss contends that the Kansas City Board of Public Utilities for the City of Kansas City, Kansas, its Elected Board (Six Member), and its General Manager Leon Daggett are not proper defendants to this suit. Defendants concede that the Unified Government of Wyandotte County is a proper party defendant in this case.
Board of Public Utilities
The Board of Public Utilities was created by Kansas legislative enactment, which provides in pertinent part, "In each city of the first class . . . which now or hereafter owns and operates a municipal waterworks plant and a municipal electric-light plant, there shall be an administrative agency known as the board of public utilities of such city. . . ." Kan. Stat. Ann. § 13-1220. The "board of public utilities [is] an administrative agency of the city charged with the duty of managing, operating, maintaining and controlling the water and electric light plants of the city." Board of Public Utilities of Kansas City v. City of Kansas City, 227 Kan. 194, 198 (1980). See Cross v. City of Kansas City, 230 Kan. 545 (1982).
"Absent a specific statute, subordinate governmental agencies do not have the capacity to sue or be sued. (Citations omitted) ." Fugate v. Unified Government of Wyandotte County/Kansas City, Kan., 161 F. Supp.2d 1261, 1266 (D. Kan.2001). See Wright v. Wyandotte County Sheriff's Department, 963 F. Supp. 1029, 1034 (D. Kan.1997) (finding that the Wyandotte County sheriff's department is an agency of Wyandotte County and thus is not capable of being sued); Murphy v. City of Topeka, 6 Kan. App. 2d 488, 491 (1981) (finding that absent authority expressly given by statute or ordinance, an agency of a city does not have the capacity to sue or be sued as a separate entity).
The court knows of no statutory authorization, express or implied, giving the Kansas City, Kansas Board of Public Utilities the power to sue or be sued separate from its governing body. Instead, the statute creating the board's powers and duties states:
The board may sue and be sued but only in the name of and on behalf of the city except it shall have no standing in any court as a party plaintiff in any litigation against the city.
K.S.A. § 13-1223. This language was added to the statute in July of 1980, perhaps to counter the Kansas Supreme Court's implication in January of that year that the board had the power to sue. See Board of Public Utilities v. City of Kansas City v. City of Kansas City, 227 Kan. 194 (1980); see also Lindenman v. Umscheid, 255 Kan. 610, 629 (1994). Accordingly, the Court finds that the Board of Public Utilities lacks the capacity to be sued and must be dismissed from this lawsuit. See Waddy v. Board of Public Utilities, 2002 WL 1998217 (D. Kan. Aug 07, 2002) (dismissing Title VII case against Board because it is not capable of being sued independently of the City.)
The court is aware that the board of public utilities has, in fact, been sued in its own name in several cases post-dating the adoption of the statutory language quoted above, see e.g., Harris v. Board of Public Utilities of City of Kansas, City, Kansas, 757 F. Supp. 1185 (D. Kan. 1991); Randolph v. Board of Public Utilities of Kansas City, Kan., 983 F. Supp. 1008 (D. Kan. 1997), but review of those cases reveals that the issue of the board's capacity was not raised.
Individual defendants
Plaintiff's complaint fails to indicate whether he has sued the general manager and the individual defendants who serve on the elected board in their official or personal capacities. Where, as here, the complaint does not clearly specify whether officials are sued personally or in their official capacities, or both, the court examines the course of the proceedings to determine the nature of the liability sought to be imposed. See Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); Houston v. Reich, 932 F.2d 883, 885 (10th Cir. 1991).
Nothing in the course of the short proceedings to date sheds any light upon this issue. Reading the pleadings in the light most favorable to plaintiff, the court therefore construes this as an action against defendants in both their official and individual capacities. Nonetheless, for the reasons that follow, all individual defendants must be dismissed.
A suit against an individual in his official capacity is really "only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. at 165 (quoting Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, n. 55 (1978)). "As long as the government entity receives notice and an opportunity to respond, an official capacity suit is, in all respects other than name, to be treated as a suit against the entity." Id. at 166.
Here, plaintiff has sued the Unified Government of Wyandotte County, which the court deems to include the City of Kansas City, Kansas. Because plaintiff's claims against municipal officers in their official capacities are redundant of plaintiff's suit against the governing agency, they shall be dismissed. See generally Gallardo v. Board of County Comm'rs, Kearny County Kan., 1995 WL 106366, at *2 (D. Kan. Jan. 11, 1995).
Plaintiff's claims against the individual defendants in their individual capacities are also subject to dismissal. Under Title VII, statutory liability is borne solely by employers, not individual supervisors. It is well established that `under Title VII, suits against individuals must proceed in their official capacity; individual capacity suits are inappropriate.' Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996). See Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir. 1994); Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993). In accordance with the Tenth Circuit's rule is that personal capacity suits against individual employees are not available under Title VII, plaintiff's Title VII claims, if any, against the defendants in their individual capacities, are dismissed.
IT IS THEREFORE ORDERED that defendants' motion to dismiss the Kansas City Board of Public Utilities for the City of Kansas City, Kansas, its Elected Board (Six Member), and its General Manager Leon Daggett (Dk. 11) from the case is granted. Plaintiff's case shall proceed solely against the Unified Government of Wyandotte County/Kansas City, Kansas.