Summary
dismissing common law retaliatory discharge claims based on KAAD and KADEA
Summary of this case from Williams v. Evogen, Inc.Opinion
Civil Action No. 99-2094-KHV
September 25, 2000
MEMORANDUM AND ORDER
Janet L. Chapman brings suit against Atchison Casting Corporation alleging that the company engaged in employment discrimination based on gender and age. Plaintiff claims that defendant violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e to § 2000e-17 (2000) ("Title VII") (Count I) and the Age Discrimination in Employment Act, 29 U.S.C. § 621 to § 634 (2000) ("ADEA") (Count II); engaged in retaliatory discharge prohibited by Title VII and the ADEA (Counts III, IV and V); and violated public policy as articulated in the Kansas Act Against Discrimination, K.S.A. § 44-1001 et seq. ("KAAD") (1999), and the Kansas Age Discrimination in Employment Act, K.S.A. § 44-1111 et seq. (1999) ("KADEA") (Count VI). This matter comes before the Court on Defendant's Motion For Partial Summary Judgment (Doc. #67) filed July 14, 2000. Defendant contends that it is entitled to summary judgment on Count VI because the statutory remedies provided in the KAAD and KADEA act to preclude that claim. For reasons set forth below, the Court finds that defendant's motion should be sustained and that Count VI should be dismissed.
Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
Factual Background
The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff. From April 24, 1989 to the present, Atchison Casting Corporation employed Janet Chapman as a custodian. In 1998, plaintiff applied for a position as a Layout and Sample Inspector. The applicant pool of 14 individuals included two women, but all of the final candidates for the position were men. Plaintiff alleges that defendant's failure to promote her, and its manner of dealing with her attempts to resolve the issue, constitute discrimination on the basis of sex and age. In addition, plaintiff claims discriminatory harassment at work based on unfounded complaints of poor work performance. These complaints included accusations by a female staff member who had engaged in sexual relations with a management employee. Finally, plaintiff argues that defendant terminated her employment in retaliation for her allegations of discrimination.
Analysis
Defendant argues that the KAAD and KADEA bar plaintiff's retaliatory discharge claim based on the public policy of the state of Kansas. Plaintiff, on the other hand, contends that her statutory remedies are inadequate and that the law allows her to obtain further relief through state common law claims.
Though Kansas is an at-will employment state, it limits an employer's rights to discharge employees. An employer may not discharge an employee for reasons which contravene public policy. See Scott v. Topeka Performing Arts Ctr., Inc., 69 F. Supp.2d 1325, 1327-28 (D.Kan. 1999). The public policy exception does not apply, however, if plaintiff has other remedies available, so long as the statutory schemes will adequately protect the plaintiff's rights. See Coleman v. Safeway Stores, Inc., 242 Kan. 804, 813-815, 752 P.2d 645, 651-52 (Kan. 1988) (collective bargaining agreement not adequate to uphold public policy against retaliatory discharge).
In Flenker v. Williamette Indust., Inc., 266 Kan. 198, 967 P.2d 295 (Kan. 1998), the Kansas Supreme Court emphasized that although Coleman arose in the collective bargaining context, its ruling extends to other statutory schemes such as the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (1994) ("OSHA"). In addition, the Kansas Supreme Court approvingly stated that "Coleman, while never specifically saying so, assumes that an adequate alternative remedy would preclude a common-law cause of action for retaliatory discharge." Id. at 209, 967 P.2d at 303. Preclusion of common law relief is appropriate when the statute's remedy is adequate to further the goals of state public policy. See id. at 207-208, 967 P.2d at 301. Plaintiff cannot complain that a remedy is inadequate, however, merely because "one could conceive of a remedy offering more comprehensive relief." Polson v. Davis, 635 F. Supp. 1130, 1150 (D.Kan. 1986), aff'd. 895 F.2d 705 (10th Cir. 1990).
Plaintiff suggests that in Flenker the Kansas Supreme Court overruled Coleman and its progeny. As noted above, however, it clearly did not overrule Coleman but in fact extended it by holding that the adequate remedy rule applies to employees who are covered by statutory schemes such as OSHA, in addition to those covered by collective bargaining schemes. Flenker, 266 Kan. at 203-04, 967 P.2d at 300. Characteristics of an adequate statutory remedy include ample filing time, limits on the discretion of an administrative official in awarding relief, and an opportunity for the employee to pursue relief after administrative remedies are exhausted. See id. at 205-208, 967 P.2d at 301-303. As examples of adequate statutory schemes, the Kansas Supreme Court cited Title VII and the Energy Reorganization Act, 42 U.S.C. § 5851. Id. at 206-209, 967 P.2d at 302-03. OSHA, the subject of the litigation in Flenker, does not fulfill the criteria for adequacy. The state administrator wholly controls whether an individual is able to obtain relief under the Act. Id. at 206-207, 967 P.2d at 301. In addition, OSHA actions must be filed within 30 days of the injury. Id. Finally, the structure of OSHA does not allow employees to pursue relief through other channels after exhausting administrative remedies. Id.
In this matter, the bald assertion that the KAAD and the KADEA afford inadequate statutory remedies is not sufficient to carry plaintiff's case. Plaintiff's Memorandum In Opposition To Defendant's Motion For Partial Summary Judgment (Doc. #81) at 5-6. Plaintiff does not cite a single reason or example why the statutory remedies are inadequate. Even before Flenker, the Tenth Circuit held that there was "no evidence that the remedies provided for in KAAD are constitutionally inadequate to compensate plaintiff, or so inadequate to enforce the stated public policy as to require bolstering by a common law cause of action." Polson, 895 F.2d at 709-10.
In Flenker the Kansas Supreme Court noted that in Polson, the Tenth Circuit had used a relatively "strict view of `adequate.'" 266 Kan. at 201, 967 P.2d at 299. The meaning of this is unclear, but even putting aside the Polson analysis the statutory remedies afforded in the KAAD are adequate under Flenker. The KAAD is administered by a committee which has a carefully stipulated membership composition. K.S.A. § 44-1003(a). Parties can file claims within six months, with extensions for continuing violations. K.S.A. § 44-1005(i). Plaintiffs can bring suit on their own behalf after they exhaust administrative remedies. Id. Flenker sets forth clear criteria for determining the adequacy of a statutory remedy. Applying those factors, the Court finds that as to claims for retaliatory discharge based on underlying discrimination claims, KAAD provides an adequate substitute for state common law remedies. Since the KADEA is based on the structure of the KAAD, it follows that it too provides adequate remedies. K.S.A. § 44-1115.
The issue with regard to retaliatory discharge claims is easily decided. The KAAD does not provide an adequate remedy, however, for all common law claims. See Garcia-Harding v. Bank Midwest, N.A., 964 F. Supp. 1492 (D.Kan. 1997) (KAAD does not preclude retaliatory discharge claims for whistle-blowing); Beam v. Concord Hospitality, Inc., 873 F. Supp. 491, 499-501 (D.Kan. 1994) (KAAD does not preclude common law claims outside its scope).
IT IS THEREFORE ORDERED that Defendant's Motion for Partial Summary Judgment (Doc. #67) filed July 14, 2000 be and hereby is SUSTAINED.
Defendant's motion for partial summary judgment does not raise any question of unsettled state law and the legal question at issue is not novel. Therefore the Court declines plaintiff's request to certify the question to the Kansas Supreme Court. See Allstate Ins. Co. v. Brown, 920 F.2d 664, 667(10th Cir. 1990); Smith v. Kennedy, 2000 WL 968780, *5 (D.Kan. 2000); Cessna Aircraft Co. v. Hartford Accident and Indem. Co., 1993 WL 65687, *2 (D.Kan. 1993).