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Whye v. City Council for the City of Topeka12/3/2004
Plaintiff Roland Whye filed this lawsuit against the City of Topeka (the City) and former Topeka Mayor Joan Wagnon, claiming wrongful termination. The district court granted the defendants' motion to dismiss on statute of limitations grounds. The Kansas Court of Appeals affirmed, although it differed from the district judge on the cause of action's precise accrual date. We granted review.
The relevant facts are undisputed. Whye was a major with the Topeka Police Department. He had served for nearly 30 years and was third in command under Chief Dean Forster. Whye and Forster were close friends as well as fellow officers.
In July 2000, Whye was arrested and charged with battery and criminal restraint. He was suspended without pay for 10 days. According to Whye, his arrest displeased then Mayor Wagnon. She demanded Forster terminate Whye or jeopardize his own position.
Whye decided to pursue early retirement, and on August 24, 2000, Forster sent a memorandum to the City's chief administrative officer regarding Whye's plan to retire. The memo read in pertinent part:
"I have met with Major Roland Whye and his attorney Doug Wells concerning Major Whye retiring from the Police Dept. Major Whye is willing to take his retirement after the third quarter of 2000, which would put his last day of employment as 9/15/2000.
"Major Whye is willing to remain on vacation until 9/15/2000 if he is reimbursed for his vacation for the first three quarters of 2000."
The police department agreed with Whye's plan to retire early and paid Whye for his vacation time on August 25, 2000. Whye's retirement became effective September 15, 2000.
Whye was acquitted of the criminal charges against him on June 20, 2001, and he filed this suit on August 30, 2002. Whye claimed denial of due process under 42 U.S.C. §1983 (2000) and constructive discharge in violation of state public policy.
The district court ruled Whye's claims were time barred because the applicable 2-year statute of limitations began running August 24, 2000, i.e., the date the City responded to the news of Whye's retirement plan. See K.S.A. 2003 Supp. 60-513(a)(4).
On appeal Whye did not dispute that the 2-year statute set out in K.S.A. 2003 Supp. 60-513(a)(4) governed his federal and state claims. He argued, however, that neither claim accrued until the effective date of his retirement, September 15, 2000. Before that point, the defendants could have reversed their position and he could have continued working. Thus his lawsuit was timely filed.
The Court of Appeals panel, exercising the unlimited appellate review appropriate when a motion to dismiss or motion for summary judgment has been granted in the district court, rejected Whye's reasoning and relied on Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 545 P.2d 312 (1976), stating: " cause of action for wrongful discharge accrues when the plaintiff knows or is certain about the termination." In the panel's view, Whye became certain of his termination when the department responded to Forster's memorandum on August 25, 2000, and the August 30, 2002, lawsuit was therefore time barred. It affirmed the district court despite the 1-day difference in its analysis of the facts. Whye v. City Council for the City of Topeka, No. 90,762, unpublished opinion filed March 5, 2004.
We have not previously ruled on how to determine the date that triggers the statute of limitations for a constructive discharge claim or a §1983 claim based upon it. We also have not addressed this issue in a situation where the plaintiff elected to take early retirement. At least three possible accrual da
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