Opinion
Civil Action No. 00-2476-KHV
April 3, 2001
MEMORANDUM AND ORDER
Kerry Hunter brings suit against his employer, Duckwall-Alco Stores, Inc., for violations of Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e et seq., and the Kansas Act Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq. He also asserts common law claims for discharge in violation of public policy and negligent hiring or retention. This matter is before the Court on defendant's motion to dismiss the common law claims. Defendant's Motion To Dismiss Counts V And VI Of The Complaint (Doc. #6) filed December 19, 2000. For the reasons stated below, defendant's motion is sustained.
Standards For Motion To Dismiss For Failure To State A Claim
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 his claim which would entitle him to relief." GFF Corp. v. Associated 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 his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he 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).
Factual Background
Plaintiff's complaint alleges the following facts, which the Court accepts as true for the purposes of this motion:
In July 1999, Fred Forester, plaintiff's co-worker, called plaintiff a "nigger." Complaint (Doc. #1) filed October 19, 2000 ¶ 20. Plaintiff reported this incident to his supervisor, but defendant did not initiate any investigation or corrective action at that time. The following month, on August 16, 1999, Everett Cunningham, another co-worker, subjected plaintiff to racial epithets and harassing statements. Plaintiff told Cunningham to stop. Cunningham walked toward plaintiff, who believed that Cunningham was going "strike, hit or do something physical toward him." Id. ¶ 22. Plaintiff defensively struck and pushed Cunningham. Both employees immediately reported the incident. Defendant sent plaintiff home to cool off and later that same day, terminated his employment. Defendant did not take any further investigative or corrective action at that time. Later, however, in response to pressure from other employees, defendant investigated these events. Defendant ultimately suspended Forester for three days. Cunningham quit when defendant attempted to question him about the incident on August 16, 1999.
Analysis
I. Discharge In Violation of Public PolicyCount V alleges that defendant wrongfully terminated plaintiff's employment, in violation of public policy, following his complaints of racial discrimination in the workplace. Defendant asks the Court to dismiss Count V because plaintiff was an at-will employee, Kansas has no policy which requires progressive discipline or just cause for termination, and plaintiff has adequate statutory remedies under Title VII and the KAAD. Plaintiff responds that he could not be discharged for exercising his legal rights, that he could not be fired without cause, and that progressive discipline was required.
Although Kansas is an at-will employment state, it does limit an employer's rights to discharge employees for reasons which contravene public policy. See Scott v. Topeka Performing Arts Ctr., Inc. 69 F. Supp.2d 1325, 1327-28 (D.Kan. 1999); Ortega v. IBP, Inc., 255 Kan. 513, 516, 874 P.2d 1188, 1191 (Kan. 1994). The public policy exception does not apply, however, if plaintiff has adequate remedies available under state or federal statutes. In Polson v. Davis, 895 F.2d 705, 709 (10th Cir. 1990), the Tenth Circuit held that the statutory remedies of the KAAD preclude recovery under the tort of wrongful discharge because the KAAD contains an "adequate and exclusive state remedy for violations of the public policy enunciated therein." Id. at 709. The Kansas Supreme Court has adopted the reasoning of Polson. See Flenker v. Willamette Indus., Inc., 266 Kan. 198, 209, 967 P.2d 295, 303 (Kan. 1998).
Under Polson and Flenker, the KAAD provides an adequate substitute for state common law remedies. The KAAD is administered by a committee which has a carefully stipulated membership. K.S.A. § 44-1003(a). Aggrieved parties have six months to file administrative claims and extensions are available for continuing violations. K.S.A. § 44-1005(i). Plaintiffs can bring suit on their own behalf after they exhaust administrative remedies. Id.
Because adequate statutory remedies are available for such claims under Title VII and the KAAD, plaintiff cannot claim wrongful discharge in violation of public policy based on allegations of race discrimination. See Doebele v. Sprint Corp., No. 00-2053, 2000 WL 1745262, at *3 (D.Kan. Nov. 17, 2000) (dismissing common law wrongful discharge claims based the KAAD and KADEA); Chapman v. Atchison Casting Corp., No. 99-2094, 2000 WL 1469315, at *3 (D.Kan. Sept. 25, 2000) (dismissing common law retaliatory discharge claims based on KAAD and KADEA). In addition, plaintiff's claim that Kansas requires "just cause" for firing or progressive discipline cannot stand. Because plaintiff was an at-will employee, Kansas public policy did not require his employer to terminate only for cause. See Ortega, 255 Kan. at 516, 974 P.2d at 1191. In addition, public policy cannot require progressive discipline as a prerequisite to discharge when the at-will doctrine permits employers to discharge employees "for good cause, for no cause, or even for a wrong cause." Id. (quoting Morriss v. Coleman Co., 241 Kan. 501, 508, 738 P.2d 841 (Kan. 1987)). Accordingly, defendant's motion to dismiss Count V is sustained.
Plaintiff argues that his public policy claim should survive this motion so that discovery can be conducted regarding whether the defendant was under some obligation to use progressive discipline. If plaintiff was protected by a cause provision or a progressive disciplinary scheme, such rights would have to be found in a contractual arrangement between the plaintiff and defendant — not in the public policies of Kansas. This Court makes no ruling on whether such rights exist.
II. Negligent Hiring or Retention
Count VI alleges that defendant breached its duty to refrain from hiring or retaining employees who were known to have engaged in racist behavior, and that plaintiff sustained damages on account of that breach. Defendant asks the Court to dismiss Count VI because Kansas does not recognize a cause of action for negligent hiring or retention based on discrimination, and because the KAAD and Title VII provide adequate remedies. Alternatively, defendant argues that Kansas would not recognize an employee's claim for negligent hiring or retention based on the tortious acts of a fellow employee. Plaintiff maintains that Kansas courts have not decided this issue.
Kansas law permits third party non-employees to bring claims against an employer for negligent hiring, supervision and retention. See Farris v. Bd. of County Comm'rs, 924 F. Supp. 1041, 1051 (D.Kan. 1996) (citing Kansas State Bank Trust Co. v. Specialized Transp. Servs., Inc., 249 Kan. 348, 819 P.2d 587 (Kan. 1991) and Plains Resources, Inc. v. Gable, 682 P.2d 653 (Kan. 1984)). In Farris, however, this Court concluded that when plaintiff was an employee who complained of tortious activities by a fellow employee, the Kansas Supreme Court would not recognize a claim for negligent hiring, supervision or retention. 924 F. Supp. at 1051. Similarly, this Court has held that Kansas "would not recognize an independent tort claim for negligent supervision or retention in the ordinary employment discrimination case." Ellis v. Osco Drug, Inc., No. 95-1101, 1996 WL 432382, at *3 (D.Kan. July 8, 1996); see also Day v. Excel Corp., No. 94-1439, 1996 WL 294341, at *14 (D.Kan. May 17, 1996). In these cases the Court noted that such claims are not permitted in wrongful termination or retaliatory discharge cases and that claims for negligent supervision are precluded where adequate state or federal statutory remedies are available. See Ellis, 1996 WL 432382, at *3 (citing Schweitzer-Reschke v. Avnet, Inc., 874 F. Supp. 1187 (D.Kan. 1995)).
While the Kansas Supreme Court has not squarely addressed the issue, this Court has repeatedly held that a claim for negligent hiring, supervision or retention is not available in cases such as this. The gist of this action is employment discrimination based on race. Plaintiff seeks relief under Title VII and the KAAD, which afford adequate remedies for the conduct in question. Defendant's motion to dismiss Count VI is therefore sustained.
IT IS THEREFORE ORDERED that Defendant's Motion To Dismiss Counts V And VI Of The Complaint (Doc. # 6) filed December 19, 2000 be and hereby is SUSTAINED.