Opinion
Civil Action No. 01-2504-KHV.
May 3, 2002
MEMORANDUM AND ORDER
Jeborah Diebold alleges that her employer, Sprint/United Management Co., unlawfully terminated her employment in retaliation for whistleblowing. This matter is before the Court on defendant's Motion To Dismiss Plaintiff's First Amended Complaint (Doc. #5) filed January 8, 2002. For reasons stated below, defendant's motion to dismiss is sustained.
Factual Background
Plaintiff's first amended complaint alleges the following facts, which the Court accepts as true for purposes of this motion:
On October 31, 2001, plaintiff worked as a project manager for Sprint/United Management Co. ("Sprint"). Plaintiff was a good employee and she received excellent performance evaluations, bonuses, promotions and salary increases.
On October 31, 2001, Sprint discovered that anthrax had contaminated or potentially contaminated packages and/or equipment at its facility in Lenexa, Kansas. Anthrax is an infectious disease that is hazardous to health and safety. Sprint isolated and tested the potentially contaminated materials and shut down the Lenexa facility to decontaminate the facility and/or equipment. Sprint also provided antibiotics and other medication to individuals who had been at the Lenexa facility. At some point, Sprint notified the Department of Health, which confirmed that anthrax had been discovered at the facility.
According to Sprint, plaintiff's assertion that its Lenexa facility was contaminated is without evidentiary basis and plaintiff should be held accountable under Fed.R.Civ.P. 11 for knowingly making a false accusation. In evaluating a motion to dismiss, however, the Court presumes that plaintiff's allegations are correct. If Sprint wishes to test the evidentiary support for plaintiff's allegation, it must file a motion for summary judgment or a motion for sanctions under Rule 11(c)(1)(A).
Plaintiff learned of the anthrax problems on November 2, 2001, two days after Sprint discovered the problem. The Lenexa facility sends bills and other documents to Sprint employees and the public, and plaintiff believed that the machine which performed this work had been contaminated. On November 2, 2001, she emailed four Sprint employees and told her supervisor about the potential contamination. Later that day, plaintiff's supervisor and higher ranking members of management demanded that plaintiff retract her email and send out an email which Sprint prepared, stating that her original email was false. Plaintiff initially refused to comply but Sprint threatened to terminate plaintiff's employment if she did not issue the retraction. Because she was afraid of losing her job, plaintiff allowed a retraction to be sent under her name.
After the retraction, Sprint told plaintiff that it did not want the public to know about the anthrax situation and that Sprint's Public Relations and Corporate Security units were going to handle the response. Plaintiff sought to stop Sprint's unlawful conduct by seeking intervention from a higher authority inside or outside of Sprint. Plaintiff communicated to higher authorities at Sprint her concern about (1) the health and safety of employees and the general public and (2) Sprint's legal violations.
On November 6, 2001, Sprint fired plaintiff. Sprint knew that plaintiff had reported the legal violations and health and safety concerns to her supervisor and other employees. Sprint told plaintiff that the reason for her termination was that she had reported the anthrax problem to others, including her supervisor, and that she was not authorized to do so. Sprint discharged plaintiff in retaliation for reporting anthrax to higher authorities at Sprint, her supervisor and Sprint employees who she reasonably believed were in danger of contamination. Plaintiff notified the Department of Health, the authorities at Sprint, her supervisor and other employees, out of a good faith concern over violations of the law, health and safety and not for a corrupt or evil motive.
Sprint policy is that legal infractions and concerns should be brought to a supervisor's attention. In addition, according to plaintiff, the Occupational Health and Safety Act, 29 U.S.C. § 651 et seq. ("OSHA"), requires that employees report health and safety concerns to their supervisors and/or health and safety coordinators.
On November 20, 2001, plaintiff filed suit against Sprint. On March 11, 2002, plaintiff filed Plaintiff's First Amended Complaint For Retaliatory Discharge (Doc. #13) asserting a common law cause of action for retaliatory discharge. On January 8, 2002, Sprint moved to dismiss plaintiff's complaint, contending that (1) plaintiff did not allege a reasonable basis for concluding that Sprint had violated laws pertaining to public health, safety or the general welfare; and (2) plaintiff had not alleged (and cannot allege) that she complained to anyone that Sprint violated laws pertaining to public health, safety or general welfare.
During a meeting between the parties on March 13, 2001, they agreed to deem defendant's previously filed motion to dismiss responsive to plaintiff's amended complaint. See Order (Doc. #12) filed March 13, 2001.
Motion To Dismiss Standards
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." GFF Corp. v. Assoc. Wholesale Grocers., Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). The issue in reviewing the sufficiency of plaintiff's complaint is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of her claims, plaintiff must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Analysis
Plaintiff claims that Sprint terminated her employment in retaliation for whistleblowing. Kansas applies the common law doctrine of employment at will. See Morriss v. Coleman Co., Inc., 241 Kan. 501, 508, 738 P.2d 841, 846 (1987). Unless the parties have an express or implied contract, an employer can end the employment relationship "for good cause, for no cause, or even for a wrong cause." Id.; see Wiggins v. Housing Auth., 22 Kan. App. 2d 367, 370, 916 P.2d 718, 721 (1996). The only exceptions to the rule of at-will employment are based on public policy. See Dickens v. Snodgrass, Dunlap Co., 255 Kan. 164, 176, 872 P.2d 252, 261 (1994). Kansas courts have construed narrowly the public policy exceptions to this doctrine. See Pierce v. Engle, 726 F. Supp. 1231, 1235 (D.Kan. 1989). The two exceptions that Kansas courts have recognized are (1) where an employer discharges an employee for exercising rights under the workers' compensation laws; and (2) where an employer discharges an employee for a good faith report or threat to report a serious infraction of rules, regulations, or law pertaining to the public health, safety and the general welfare by a coworker or employer, i.e. whistleblowing. See Ali v. Douglas Cable Comm'rs, 929 F. Supp. 1362, 1387 (D.Kan. 1996). The elements of a cause of action for retaliatory discharge for whistleblowing are as follows:
To maintain such an action, an employee has the burden of proving by clear and convincing evidence, under the facts of the case, a reasonably prudent person would have concluded the employee's coworker or employer was engaged in activities in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare; the employer had knowledge of the employee's reporting of such violation prior to discharge of the employee; and the employee was discharged in retaliation for making the report.
Palmer v. Brown, 242 Kan. 893, 900, 752 P.2d 685, 690 (1988). Sprint asserts that plaintiff does not allege (1) that she had a reasonable basis for concluding that it violated public health, safety and welfare laws (the "violation requirement") or (2) that she made a protected report of the alleged violation (the "reporting requirement").
In her first amended complaint, plaintiff alleges that Sprint violated rules, regulations or laws pertaining to public health, safety and general welfare. More specifically, her complaint identifies the following policies, regulations and laws: (1) public policy that citizens in a democracy be free from reprisals for performing their civil duty of reporting infractions of rules, regulations or the law pertaining to public health, safety and general welfare; (2) Sprint's policy that infractions and concerns should be brought to a supervisor's attention; (3) OSHA requirements that employees report health and safety concerns to their supervisor and/or health and safety coordinators; (4) the public policy of Kansas and the United States that employees work in a safe environment, free of hazards; and (5) Kansas and federal laws that prohibit an employer from exposing an employee or other individual to anthrax or other contagious disease. See Plaintiff's First Amended Complaint For Retaliatory Discharge (Doc. #13) at ¶¶ 18-22. Curiously, although plaintiff lists these policies, regulations and laws, she does not allege that Sprint violated them; she makes only the conclusory allegation that "[a] reasonably prudent person would conclude that Sprint engaged in activities in violation of rules, regulations or the law pertaining to public health, safety and general welfare." Id. at ¶ 26. The complaint does not allege how, when or why a reasonably prudent person would have reached this conclusion.
To state a claim for whistleblowing, plaintiff must allege that Sprint engaged in activities in violation of rules, regulations or law pertaining to public health, safety, and general welfare. In all of the whistleblowing cases which the Court has examined, plaintiffs clearly identified the action which allegedly violated the law and precipitated the whistleblowing. See Lytle v. City Of Haysville, Kans., 138 F.3d 857, 866-67 (10th Cir. 1998) (police officers failed to administer CPR and make full report of incident); Getz v. Board of County Comm'rs, ___ F.3d ___, 2002 WL 378165 (D.Kan. Mar. 8, 2002) (improper dispensation of medicine, verbal abuse, understaffing and lack of written procedures at county jail); Ali v. Douglas Cable Communications, 929 F. Supp. 1362 (D.Kan. 1996) (employer's recording of phone calls violated federal law); Byle v. Anacomp, Inc., 854 F. Supp. 738, (D.Kan. 1994) (co-worker was embezzling money); Herman v. W. Fin. Corp., 254 Kan. 870, 881, 869 P.2d 696, 704 (1994) (bank violated internal lending guidelines); Fowler v. Criticare Home Health Services, Inc., 27 Kan. App. 2d 869, 10 P.3d 8 (2000) (employer shipped guns and live ammunition through United Parcel Service); Moyer v. Allen Freight Lines, Inc., 20 Kan. App. 2d 203, 207-08, 885 P.2d 391, 395 (1994) (employee received equipment failure citations from Department of Transportation authorities and believed that employer was violating DOT regulations).
Although these cases involved summary judgment or a motion for a directed verdict, the lenient standard of notice pleading does not eliminate plaintiff's burden to identify what she believed Sprint had done to violate specific policies, regulations or laws. Plaintiff alleges that she sent her email because Sprint (1) discovered packages and/or equipment that were or could have been contaminated with anthrax, isolated the equipment, and tested and decontaminated the equipment; (2) shut down the Lenexa facility to decontaminate it; and (3) provided antibiotics and other medication to employees and other individuals at the Lenexa facility. Plaintiff's complaint does not identify which action (or failure to act) caused her to believe that Sprint's conduct was unlawful. While notice pleading under Fed.R.Civ.P. 8(a) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief'" it must give defendant fair notice of the grounds upon which plaintiff's claim rests. See Conley, 355 U.S. at 47. More specifically, the complaint "must 'set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.'" Gallardo v. Bd. of County Comm'rs, 857 F. Supp. 783, 787 (D.Kan. 1994) (quoting Gooley v. Mobil Oil Co., 851 F.2d 513, 515 (1st Cir. 1988)). Plaintiff's complaint does not meet this standard.
IT IS THEREFORE ORDERED that Defendant's Motion to Dismiss (Doc. #5) filed January 8, 2002 be and hereby is SUSTAINED. Dated this 29th day of April, 2002 at Kansas City, Kansas.