Summary
granting summary judgment on retaliatory discharge claim where adequate alternative remedies existed under FMLA, ADA and KAAD
Summary of this case from Wedel v. Petco Animal Supplies Stores, Inc.Opinion
CIVIL ACTION No. 02-2248-KHV
June 16, 2003.
MEMORANDUM AND ORDER
Ricky L. Lines brings claims against his former employer, the City of Ottawa, Kansas, under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 101 et seq., and the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Plaintiff also asserts state law claims for disability discrimination under the Kansas Acts Against Discrimination ("KAAD"), K.S.A. § 44-101 et seq. and for wrongful termination and breach of conditions of employment. This matter comes before the Court on Defendant's Motion For Summary Judgment (Doc. #34) filed March 17, 2003. For reasons stated below, the Court finds that defendant's motion should be sustained in part.
Summary Judgment Standards
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 judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; 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. 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 Sec., 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 the motion for summary judgment. 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. 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.
Facts
The following facts are either uncontroverted or construed in the light most favorable to plaintiff.
As a child, plaintiff was diagnosed with epilepsy that causes "absence seizures." Since then, he has taken medication to control seizures. When plaintiff has a seizure he does not remember anything that happened during the seizure.
From October 1, 1980 until the summer of 2000, plaintiff worked for the Public Works Department of the City of Ottawa, Kansas. Plaintiff did not have a written contract for a specific term of employment with the City. The Forward to the City Personnel Rules and Regulations states that:
The actual date of termination is disputed.
Neither these policies nor any representations made by a City official create an employment contract between you and the City for employment or for the provision of any benefit. Your employment with the City is at-will employment. The City retains the right to end your employment for any reason.
Defendant's Ex. 7.
In 1991, plaintiff drove a city truck off of the road when he suffered a seizure. After the accident, the City asked a doctor to determine how it should alter plaintiff's job description to accommodate his medical condition. The City developed a new job description which included manual tasks to maintain streets, parks and other city property. Plaintiff's new duties included sweeping, mowing, painting, installing signs and other maintenance duties. Among other precautions, the City restricted plaintiff from driving vehicles or working above water. Plaintiff's modified job description required him to obtain a quarterly blood test to ensure that his medication was adequate to prevent seizures, and plaintiff authorized a physician to forward his test results to the City.
In June of 1991, the City registered plaintiff as a disabled person with the state. Nearly two years later, on March 4, 1993, the City released plaintiff from the driving restriction, presumably because his medication effectively prevented seizures. The City continued to modify plaintiff's job to some extent (for example, he worked around a grader while another employee drove it). Plaintiff operated chain saws, however, and drove City trucks.
On June 8, 2000, plaintiff suffered an absence seizure while driving a City truck, causing the truck to leave the roadway. The next day, Dr. William Ransom examined plaintiff. He found that plaintiff's seizures had increased to four in one year, and he arranged for plaintiff to see a neurologist. Dr. Ransom instructed plaintiff not to drive and increased his Dilantin dose to 400 milligrams daily. On June 13, 2000, Dr. Ransom sent a letter to Judy Hasty, City Personnel Director, reporting his findings and recommendations. The letter summarized his findings as follows:
The parties stipulated that the accident occurred on June 8, 2000. Defendant now states that according to the police accident report, the accident occurred on June 5, 2000. That report is not part of the record, and the exact date of the accident is immaterial.
In summary, Ricky has a history of partial complex seizures, and this is now the third accident that has occurred due to a seizure while at work for the City. No significant injuries have resulted from any of these episodes. I have arranged for Ricky to see the neurologist again. I have instructed him to not do any driving at work or for personal use. He should increase his Dilantin dose to 400 mg daily.
Plaintiff's Response To Defendant's Motion For Summary Judgment, Ex. 1. On June 15, 2000, two days after Dr. Ransom sent this letter, the City Manager gave plaintiff a memo which placed him on administrative leave with pay. After June 16, 2003, plaintiff did not report to work.
Plaintiff's personnel file reflects a merit increase and market adjustment pay raise effective June 24, 2000, and payroll records state that he received regular pay through July 7, 2000. The City's "CHECKLIST FOR TERMINATING EMPLOYEES" lists plaintiff's last day of employment as July 7, 2000. Plaintiff's group health coverage terminated on September 30, 2000.
On June 23, 2000, plaintiff attended a meeting at Hasty's office. Hasty told plaintiff that he was no longer employed and that he should have an attorney for his best interests. After the meeting, plaintiff returned his keys to his supervisor.
On June 29, 2000, plaintiff met with the Ottawa City Attorney, who gave him a draft separation agreement which proposed that the City place plaintiff on administrative leave until July 7, 2000 and sick leave until August 4, 2000. The City asserts that it proposed the separation agreement to avoid potential litigation and preserve plaintiff's medical benefits.
The City also offered to pay for two years of courses and books at a community college, as well as $1,000 per month for two years, in order for plaintiff to obtain retraining. Plaintiff declined the offer.
Plaintiff did not personally ask the City for leave under the Family Medical Leave Act. On July 11, 2000, however, his counsel sent a letter which asked the City to (1) let plaintiff return to work with reasonable accommodation under the ADA (e.g., have another worker drive plaintiff to job sites), (2) keep plaintiff on administrative leave, or (3) let plaintiff use available sick leave, then FMLA leave, until he could return to work. See Complaint, Ex. A, p. 1-2. Plaintiff's counsel also sought administrative review of plaintiff's termination.
The City's Personnel Rules and Regulations, Defendant's Ex. 7, provide that an employee may request FMLA leave and with regard to Family Leave, provides in part:
Where leave is requested as the result of a serious health condition, the employee will provide the City a certification statement issued by a healthcare provider. Should there be a question of validity of the certification provided by the employee, the City may, at its own expense, require an opinion from a second healthcare provider. Where there is a conflict between the two opinions, the City may pay for the opinion of a third provider. The opinion of the third provider is binding on both the employee and employer.
Id. at 23-24.
On July 18, 2000, the City denied plaintiff's request for accommodation, stating that it did not have another worker to drive plaintiff to work sites, and that use of power tools and vehicles was "simply incompatible with his medical condition." Plaintiff's Response To Defendant's Motion For Summary Judgment (Doc. #39) filed April 15, 2003, Green Affidavit, Ex. A. The City also declined to place plaintiff on administrative leave with pay. In that regard, however, it stated that
the City is willing to place Mr. Lines on administrative leave without pay, and will cash out his available vacation leave so that Mr. Lines has a source of funds. Mr. Lines' administrative leave without pay will be until September 1, 2000. During that time frame you have indicated that Mr. Lines intends to seek the opinion of a specialist in epilepsy, Dr. Zwivelman. Would you please provide me with the address of the specialist so that I can address a letter to the specialist stating the City's concerns and presenting questions that need to be answered by this medical specialist.
Id. at 1. In its letter of July 18 the City also responded to plaintiff's request for administrative review of his termination, stating as follows:
Since the City is placing Mr. Lines on administrative leave without pay there is no administrative review at this time. However if there is a termination I will assume that your letter requesting administrative review pursuant to Ottawa personnel policies will still be effective.
Id.
On August 4, 2000, plaintiff's counsel asked the City to clarify plaintiff's leave status and again asked to use sick leave, then FMLA leave if needed, to let plaintiff get control of his epilepsy with medication. Plaintiff's Response To Defendant's Motion For Summary Judgment (Doc. #39) filed April 15, 2003, Green Affidavit, Ex. B. at 1-2.
The City's Personnel Rules and Regulations include a sick leave policy which states that "[r]egular full-time employees will receive sick leave credit at a rate of eight (8) hours per month." Defendant's Ex. 7, Personnel Manual, 7.2(a)(1). They further provide that "[s]ick leave shall be granted an employee for . . . (a) Personal illness or injury of the employee." Id., 7.2(b)(3)(a). The rules also provide that a "supervisor may require documentation of [the illness or injury] if the absence is longer than three days," id., 7.2(b)(5), and that "an employee who voluntarily leaves the service of the City shall be compensated for unused sick leave." Id., 7.2(b)(12)(c) (for an employee who has worked for more than ten years, ½ of all sick leave up to 480 hours). When the City terminated his employment, plaintiff had some amount of accrued paid vacation and sick leave. The rules, however, provide that an employee who is terminated is not eligible for compensation for sick leave. Id., 7.2(b)(12).
On October 4, 2000, plaintiff's counsel wrote the City a letter which stated in part, "I believe, at this time, [plaintiff's] real termination date was June 6, 2000, and the City of Ottawa's subsequent actions were just a ruse." Counsel also stated that Dr. Ransom's letter of June 13 indicated that plaintiff's only job restriction would be driving until he was evaluated by a neurologist, and that the neurologist had stated, by letter dated July 20, 2000, that after a brief period of medical leave to adjust plaintiff's medication, plaintiff would be able to safely return to work without restrictions.
The record does not reflect whether City had received the neurologist's letter when it received counsel's letter of Oct. 4, 2000.
On April 20, 2001, plaintiff filed a "complaint information sheet" with the Kansas Human Rights Commission ("KHRC"), asserting that the City had fired him because of disability and failed to provide reasonable accommodation. See Exhibits to Plaintiff's Response, Ex. 9. The information sheet states that it is for information purposes only and does not constitute a charge of discrimination. Plaintiff did not sign the complaint information sheet. On May 21, 2001, plaintiff filed a charge of discrimination with the KHRC. See Exhibits to Defendant's Motion For Summary Judgment, Ex. 14. On August 31, 2001, the KHRC made a determination of "no probable cause." On October 30, 2001, the Equal Employment Opportunity Commission ("EEOC") adopted the KHRC finding of no probable cause and mailed a Dismissal and Notice of Right To Sue to plaintiff's correct address. Plaintiff received the letter but he does not remember the exact date on which he received it. The letter sat on his table for some time before plaintiff sent it to his attorney. Plaintiff did not seek review of the KHRC or EEOC finding.
Title VII provides for a 180-day filing period after the occurrence of an unlawful discriminatory practice. The period is extended to 300 days in "deferral states," where the EEOC defers to the enforcement efforts of a state agency empowered to undertake employment discrimination investigations. Mascheroni v. Board of Regents of Univ., 28 F.3d 1554, 1557 n. 3 (10th Cir. 1994) (citations omitted). "A plaintiff in a deferral state such as Kansas must file a complaint with the EEOC within 300 days of the alleged discriminatory acts." Gray v. Phillips Petroleum Co., 998 F. Supp. 1221, 1225 (D.Kan. 1998).
In deferral states, work share agreements typically include provisions whereby the EEOC and the state agency designate each other as agents for receiving charges. Consequently, "[i]n a deferral state, like Kansas, a claimant may either file the charges directly with the state agency or file them with EEOC and rely on the EEOC to refer them to the proper state agency." Schmitt v. Beverly Health and Rehab. Servs., 962 F. Supp. 1379, 1383 (D.Kan. 1997).
On April 20, 2001, pursuant to K.S.A. § 12-105b, plaintiff served a Notice of Claim on the City. Plaintiff asserted that in terminating his employment, the City violated the FMLA, ERISA, the ADA, the terms and conditions of plaintiff's employment, plaintiff's due process rights, and city and state law. Plaintiff filed suit on May 31, 2002.
Although plaintiff now asserts a violation of the Kansas Acts Against Discrimination, he did not mention the KAAD in his notice of claim.
Analysis
I. FMLA Claim
Plaintiff alleges that the City denied his request for FMLA leave to which he was entitled under 29 U.S.C. § 2612, and that the City terminated his employment in violation of 29 U.S.C. § 2612, 2615 and 2617. The City argues that it is entitled to summary judgment on plaintiff's FMLA claim because (1) when plaintiff requested leave, the City no longer employed him; and (2) plaintiff did not certify a "serious health condition."
When an employee has a serious health condition which renders him unable to perform his job functions, he is entitled to 12 weeks of unpaid leave under the FMLA. See 29 U.S.C. § 2612(a)(1)(d). The employer, however, may require that the employee take paid leave in lieu of unpaid leave. See 29 U.S.C. § 2612(d)(2)(B). At the end of 12 weeks, if the employee is "unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition," the FMLA does not entitle the employee to be restored to his or her previous position or to another position. Neide v. Grand Court Lifestyles, Inc., 38 F. Supp.2d 938, 945 (D.Kan. 1999).
Section 2612(d)(2)(B) provides that "[a]n eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee . . . for any part of the 12-week period of such leave under [this Act]." If the employer elects to give the employee paid leave in lieu of unpaid leave, the employee is not entitled to an additional period of unpaid leave after the 12 week period of paid leave has been exhausted. See Parker v. Sony Pictures Entertainment, Inc., 19 F. Supp.2d 141, 153 (S.D.N.Y. 1998), aff'd in part, vacated in part, 204 F.3d 326 (2d Cir. 2000).
The FMLA prohibits the employer from (1) interfering with, or denying the exercise or attempted exercise of, rights under the Act; (2) discharging or otherwise discriminating against an individual for attempting to exercise those rights; and (3) discharging or otherwise discriminating against an individual for filing a charge under the FMLA or participating or testifying in a proceeding concerning FMLA rights. See 29 U.S.C. § 2615; see also Mark W. Bennett, Employment Relationships: Law and Practice § 4.05[C], pp. 4-99-100 (Aspen Law Business, 1998). An employer who violates Section 2615 is liable to the affected eligible employee for "unpaid wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation." 29 U.S.C. § 2617(a)(1)(A)(i)(I). Where the employee has not lost wages, salary, employment benefits or other compensation, the employer is liable for "any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee." 29 U.S.C. § 2617(a)(1)(A)(i)(II). In addition, the employer is liable for interest and liquidated damages, see 29 U.S.C. § 2617(a)(1)(A)(ii)-(iii), and the employee may obtain "such equitable relief as may be appropriate, including employment, reinstatement, and promotion." 29 U.S.C. § 2617(a)(1)(B).
29 U.S.C. § 2615 provides as follows:
(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.
(2) Discrimination
It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.
(b) Interference with proceedings or inquiries
It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual —
(1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this subchapter; or
(2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this subchapter; or
(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this subchapter.
An "eligible employee" is one who has been employed for at least 12 months and has worked at least 1,250 hours during that period. 29 U.S.C. § 2611(2)(A).
Plaintiff asserts that he requested FMLA leave on July 11, 2000, when his counsel requested (among other things) that the City let him use available sick leave and FMLA leave until he could return to work. The City asserts that it fired plaintiff on June 23, 2000, when Hasty told plaintiff that he was no longer employed. The City therefore reasons that when plaintiff requested FMLA leave on July 11, the City was not an "employer" and plaintiff was not an "employee" under the FMLA. 29 U.S.C. § 203(c), (d) and (g); 29 U.S.C. § 2611(2) and (3).
The record does not clearly reveal when the City terminated plaintiff's employment. On June 23, Hasty told plaintiff that he was no longer employed and that he should have an attorney for his best interests. After the meeting, plaintiff returned his keys to his supervisor. On June 29, plaintiff met with the Ottawa City Attorney, who gave him a draft separation agreement which proposed to place plaintiff on administrative leave until July 7 and sick leave until August 4, 2000. The City's "CHECKLIST FOR TERMINATING EMPLOYEES" lists plaintiff's last day of employment as July 7, however, and its letter of July 18, stated that plaintiff had not been terminated but was being placed on administrative leave without pay.
Viewing the record in the light most favorable to plaintiff, the City placed plaintiff on administrative leave on July 18, 2000. Therefore, when plaintiff requested FMLA leave on July 11, he was an employee entitled to protection under the FMLA.
The City asserts that even if it employed plaintiff when he requested FMLA leave, plaintiff did not provide a certification of a "serious health condition." The FMLA provides that
An employer may require that a request for leave under subparagraph (c) or (d) of Section 2612(a)(1) of this Title be supported by a certification issued by the health care provider of the eligible employee. . . . The employee shall provide, in a timely manner, a copy of such certification to the employer.29 U.S.C. § 2613(a). The City's Personnel Rules and Regulations required that "[w]here leave is requested as the result of a serious health condition, the employee will provide the City a certification statement issued by a healthcare provider." Counsel's letter of July 11 did not enclose a certification, and plaintiff did not personally provide such certification. On June 13, however, Dr. Ransom had sent Hasty a letter which reported that plaintiff's seizures were increasing and that he had arranged for plaintiff to see a neurologist. In that letter Dr. Ransom stated that he had instructed plaintiff not to drive, and that he had increased plaintiff's Dilantin dose to 400 milligrams daily. Plaintiff asserts that Dr. Ransom's letter certified his serious health condition.
FMLA regulations define a "serious health condition" as "a period of incapacity (i.e., inability to work . . .) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition." See 29 C.F.R. § 825.114(a)(2)(i). Defendant asserts that the record contains no evidence from which a reasonable jury could find that plaintiff was incapacitated for more than three consecutive days. Construed in favor of plaintiff, however, the record supports a finding that Dr. Ransom's letter certified that plaintiff had epilepsy, a serious condition which prevented him from driving. At the time, plaintiff's job description required driving. The record therefore reveals a genuine issue of material fact whether plaintiff provided the required certification that he had a serious health condition under the FMLA. The City is not entitled to summary judgment on the claim that it interfered with, or denied the exercise or attempted exercise of, plaintiff's rights under the FMLA. See 29 U.S.C. § 2915(a)(1).
Plaintiff does not raise an FMLA retaliation claim under 29 U.S.C. § 2615(a)(2). According to the pretrial order, plaintiff's FMLA claim is that "[d]efendant responded to plaintiff's request for FMLA by terminating him." Pretrial Order (Doc. #45) at 10. Standing alone, that language might suggest an FMLA retaliation claim. Plaintiff, however, lists the elements of his FMLA claim as follows:
I. Plaintiff had a medical condition which qualified him for the benefits of FMLA.
II. Plaintiff timely requested leave pursuant to FMLA.
III. Plaintiff provided adequate medical evidence of his medical condition to qualify him for benefits pursuant to FMLA.
IV. Defendant did not grant plaintiff leave pursuant to FMLA.
V. Plaintiff has not been offered a return to the position he held in defendant's employ prior to his request for family medical leave.
VI. Plaintiff suffered damages as a result thereof.
Pretrial Order (Doc. #45) at 15. These elements do not state an actionable claim for retaliation.
II. ERISA Claims
Plaintiff asserts that the City violated ERISA by denying him accrued sick leave under its sick leave policy, and failing to inform him of ERISA rights after he requested that information. The City asserts that it is entitled to summary judgment because ERISA does not apply to governmental benefit plans. 29 U.S.C. § 1002 and 1003(b)(1); Hightower v. Texas Hosp. Ass'n, 65 F.3d 443, 448 (5th Cir. 1995) (because of federalism concerns, Congress did not extend ERISA protections to public pension plans); McGraw v. Prudential Ins. Co. of Am., 137 F.3d 1253, 1257 (10th Cir. 1998) (plain language of ERISA deems public employee benefit plan exempt). Plaintiff concedes that he is "hard pressed to explain away the provisions of 29 U.S.C. § 1003(b)(1)." Response To Defendant's Motion For Summary Judgment (Doc. #39) at 19. The City is entitled to summary judgment on plaintiff's ERISA claim.
Section 1003(b)(1) provides that ERISA protections for employee benefit rights do not apply "to any employee benefit plan if — (1) such plan is a governmental plan (as defined in Section 1002(32)) of the Title." In turn, Section 1002(32) defines a "government plan" as "a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing."
III. Discrimination Under The ADA
The ADA prohibits a covered entity from discriminating against a "qualified individual with a disability" because of the individual's disability with respect to terms, conditions, and privileges of employment. See 42 U.S.C. § 12112(a). The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Pack v. Kmart Corp., 166 F.3d 1300, 1302 (10th Cir. 1999) (quoting 42 U.S.C. § 12111(8)). To establish a prima facie case under the ADA, plaintiff must demonstrate that (1) he is disabled within the meaning of the ADA; (2) he is qualified, that is, with or without reasonable accommodation, he is able to perform the essential functions of the job; and (3) defendant discriminated against him because of his disability. See Pack, 166 F.3d at 1302.
Plaintiff complains that defendant did not reasonably accommodate his disability. Specifically, plaintiff asserts that he suffered from epilepsy and that the City refused to give him leave to adjust his seizure medication and alter his job description to account for the possibility of seizures. Defendant asserts that it is entitled to summary judgment because plaintiff's claim is procedurally barred.
Defendant also asserts that plaintiff cannot show that he is disabled under the ADA and that he could perform the essential requirements of his job. The Court does not reach these arguments because it finds that the claim is procedurally barred.
Pursuant to 42 U.S.C. § 2000e-5(f)(1), one must bring a Title VII or ADA claim within 90 days of receipt of notice of right to sue. See Jarrett v. US Sprint Comm. Co, 22 F.3d 256 (10th Cir. 1994 (Title VII claim). Defendant asserts that this statute bars plaintiff's ADA claim because he did not file suit within the prescribed period.
On October 30, 2001, the EEOC issued its Dismissal and Notice of Right to Sue. The EEOC mailed the document to plaintiff's correct address and plaintiff received the letter. Plaintiff does not remember the exact date, but the letter sat on his table for some time before he sent it to his attorney. Plaintiff filed his complaint on May 31, 2002, well beyond 90 days from the date on which the EEOC mailed the notice.
Plaintiff concedes that he did not file suit within 90 days but asks the Court to toll the time for filing. The 90 day filing limit is not jurisdictional but is a requirement that — like a statute of limitations — is subject to waiver, estoppel and equitable tolling. Id. (citing Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983)). The Tenth Circuit has taken "a strict view of what necessitates equitable tolling." Jarett, 22 F.3d at 260. Equitable tolling is appropriate "only if there has been active deception of the claimant regarding procedural requirements." Id. (emphasis in original).
Plaintiff essentially asks the Court to toll the 90 days because the EEOC did not direct a copy of the right to sue letter to his attorney. Plaintiff relies upon Wagher v. Guy's Foods, 765 F. Supp. 667, 670 (D.Kan. 1991), which is distinguishable in several respects. In Wagher, plaintiff's counsel had specifically asked the EEOC to send him the right to sue letter. The EEOC sent the letter to plaintiff and the post office returned it as unclaimed. When plaintiff's counsel inquired about the letter, the EEOC told him that the period would not run until plaintiff actually received the letter. Id.
In this case, plaintiff received the EEOC letter, which clearly explained in laymen's terms that he could not file suit after 90 days. Although he presumably received the letter soon after October 30, 2001, he did not file suit until May 31, 2002 — almost six months later. Plaintiff does not allege that he was actively misled or lulled into inaction, or that defendant or the EEOC made a false representation to him. See Johnson v. United States Postal Serv., 861 F.2d 1475, 1480 (10th Cir. 1988). On this record, plaintiff has not shown circumstances which warrant equitable tolling. The City is therefore entitled to summary judgment on plaintiff's claim of ADA discrimination.
IV. Discrimination Under the KAAD
The City also claims that plaintiff's KAAD discrimination claim is barred because K.S.A. § 44-1005 required plaintiff to file a charge of discrimination within six months of the act of discrimination. Defendant asserts that the alleged act of discrimination occurred on June 23, 2000, when Hasty told plaintiff that he was no longer employed. Viewed in a light most favorable to plaintiff, however, the act of discrimination could conceivably be as late as July 18, 2000, when the City declined to accommodate plaintiff.
Although plaintiff filed his KHRC/EEOC charge on May 21, 2001, the KHRC received plaintiff's unsigned, unverified complaint information sheet on April 20, 2001. Title VII provides that "[c]harges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires." 42 U.S.C. § 2000e-5(b) (emphasis added). Although plaintiff did not verify the April 20, 2001 information sheet, EEOC regulations provide as follows:
[a] charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received.29 C.F.R. § 1601.12(b). Under this regulation, plaintiff's later verified charge would relate back to the information sheet dated April 20, 2001. See Peterson v. City Of Wichita, Kan., 888 F.2d 1307, 1308-09 (10th Cir. 1989) (unverified charge is timely filing if later amended by charge executed under oath or affirmation). For purposes of this analysis the Court assumes that Kansas would apply a similar rule to allow the later verified charge to relate back.
Viewed in the light most favorable to plaintiff, the record shows that plaintiff filed a charge on April 20, 2001, complaining of an act of discrimination which occurred on July 18, 2000. Plaintiff's charge, filed more than nine months after the act of discrimination, is barred by the six month statutory requirement of K.S.A. § 44-1005. The Court assumes that the Kansas Supreme Court would apply Title VII's equitable tolling principles to cases arising under the KAAD. See Davis v. Wesley Retirement Communities, Inc., 913 F. Supp. 1437, 1442 (D.Kan. 1995) (federal district court assumes that Kansas courts would apply waiver, estoppel and equitable tolling principles to KAAD claim). Plaintiff, however, does not argue that the six month time limit should be tolled. The City is entitled to summary judgment on plaintiff's KAAD claim.
V. Wrongful Termination
Plaintiff claims that the City violated Kansas public policy when it terminated him for asserting his rights under the FMLA, the ADA and the KAAD. The City asserts that it is entitled to summary judgment because plaintiff did not comply with the Kansas notice statute, K.S.A. § 12-105(b), which provides in part as follows:
(d) Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: (1) The name and address of the claimant and the name and address of the claimant's attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested. In the filing of a notice of claim, substantial compliance with the provisions and requirements of this subsection shall constitute valid filing of a claim.
The notice of claim requirement in K.S.A. § 12-105b(d) affords a municipality an opportunity to review and investigate tort claims and approve or deny such claims before having to litigate those claims under the KTCA. Miller v. Brungardt, 916 F. Supp. 1096, 1100 (D.Kan. 1996). The statutory notice requirements are a condition precedent to bringing a tort claim against a municipality. Id.
The City asserts that plaintiff's notice of claim did not include a claim of wrongful termination in violation of public policy. Plaintiff's notice of claim alleged violation of the FMLA, ERISA, the ADA, the terms and conditions of plaintiff's employment, due process, and city and state law. The statute provides that a claimant must substantially comply with the notice requirements. "Substantial compliance" means compliance in respect to the essential matters necessary to insure every reasonable objective of the statute. City of Lenexa v. City of Olathe, 233 Kan. 159, 164, 660 P.2d 1368 (1983). The notice of claim did not include a claim of wrongful termination in violation of public policy and therefore it did not afford the City the opportunity to investigate such a claim. The notice does not comply with the statute.
Moreover, even if the notice of claim complied with K.S.A. § 12-105b, the City is entitled to summary judgment because plaintiff has not alleged an actionable claim. Kansas employment law is based on the doctrine of employment at will. Absent an express or implied contract of fixed duration, or where recognized public policy concerns are raised, employment is terminable at the will of either party. Frye v. IBP, Inc., 15 F. Supp.2d 1032, 1046 (D.Kan. 1998). Kansas narrowly recognizes two public policy exceptions to the rule of employment at will: "(1) when an employer discharges an employee for exercising rights under the workers compensation laws and (2) when 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 co-worker or employer (whistleblowing)." Riddle v. Wal-Mart Stores, Inc., 27 Kan. App. 2d 79, 85, 998 P.2d 114, 119 (2000).
In order to prevail on his retaliatory discharge claims, plaintiff must demonstrate either (1) that Kansas courts have recognized his retaliatory discharge claims as exceptions to its employment at will doctrine or (2) that Kansas public policy protects the conduct on which his retaliatory discharge claims are based and that he has no alternative state or federal remedy. See Harris v. Bd. of Public Utilities of Kansas City, Kan., 757 F. Supp. 1185, 1194 (D.Kan. 1991). Plaintiff cites no authority which recognizes his claim as an exception to the employment at will doctrine. Furthermore, plaintiff has adequate alternative remedies under the FMLA, the ADA and the KAAD. See id.; Tarr v. Riberglass, Inc., No. 83-4234, 1984 WL 1481 at *2-3 (D.Kan. Feb. 3, 1984) (no public policy exception for age discrimination because plaintiff has existing alternative remedy); Polson v. Davis, 635 F. Supp. 1130, 1149-50 (D.Kan. 1986) (no public policy exception for sex discrimination and retaliation because plaintiff has existing alternative remedy), aff'd, 895 F.2d 705 (10th Cir. 1990). The Court therefore sustains the City's motion for summary judgment on plaintiff's wrongful termination claim.
VI. Breach Of Conditions Of Employment
Plaintiff claims that the City breached a condition of his employment when it refused to let him use accumulated sick leave. Specifically, plaintiff asserts an implied contract based on city sick leave policy which states that "[r]egular full-time employees will receive sick leave credit at a rate of eight (8) hours per month." Personnel Manual, 7.2(a)(1). It further provides that "sick leave shall be granted an employee for . . . (a) Personal illness or injury of the employee." Id., 7.2(b)(3)(a).
Plaintiff does not claim an implied contract of employment that would require the City to dismiss him only for cause. Rather, plaintiff asserts that the sick leave policy created a contract and that the City breached that contract when it refused to approve his request for sick leave.
Whether an implied contract of employment exists depends on the mutual intent of the parties as shown by their acts, circumstances and the inferences reasonably drawn therefrom:
Where it is alleged that an employment contract is one to be based upon the theory of "implied in fact," the understanding and intent of the parties is to be ascertained from several factors which include written and oral negotiations, the conduct of the parties from the commencement of the employment relationship, the usages of the business, the situation and objective of the parties giving rise to the relationship; the nature of the employment, and any other circumstances surrounding the employment relationship which would tend to explain or make clear the intention of the parties at the time the employment contract commenced.
Morriss v. Coleman Co., 241 Kan. 501, 513, 738 P.2d 841 (1987) (citation omitted).
For an employment contract to exist, mutual intent to enter into it must exist between the parties; plaintiff's unilateral expectations are insufficient. Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1492 (10th Cir. 1995); Harris v. Bd. of Pub. Util., 757 F. Supp. 1185, 1190 (D.Kan. 1991). Intent is ordinarily a question of fact, so the existence of an implied contract is usually a matter reserved for a jury's determination. Nguyen, 905 F. Supp. at 1486-87. Summary judgment may be appropriate, however, when the alleged implied contract is based solely on plaintiff's unilateral expectation or "when the evidence shows no liability as a matter of law and where the essential facts are not in dispute." Kastner v. Blue Cross Blue Shield of Kan., 21 Kan. App. 2d 16, 24, 894 P.2d 909 (1995).
The City asserts that as a matter of law, it has disclaimed the existence of an implied contract. The City Personnel Rules and Regulations forward states as follows:
Neither these policies nor any representations made by a City official create an employment contract between you and the City for employment or for the provision of any benefit. Your employment with the City is at-will employment. The City retains the right to end your employment for any reason.
Kansas courts have held that such a disclaimer does not necessarily preclude the formation of an implied contract. See, e.g., Morriss v. Coleman Co., 241 Kan. 501, 514, 738 P.2d 841, 849 (1987) (disclaimer in supervisor's manual did not, as matter of law, decide issue whether parties had implied contract). In Morriss, the Kansas Supreme Court determined that defendant had not established that the employer brought the disclaimer to plaintiff's attention or that it was intended to create an unqualified employment at will relationship. Id. The Court then concluded that plaintiff had created a legitimate issue of fact whether defendant had entered an implied contract to treat its employees fairly and in good faith and not to terminate an employee except for just cause. In Kastner v. Blue Cross Blue Shield of Kan., Inc., 21 Kan. App. 2d 16, 28-29, 894 P.2d 909, 918-19 (1995), the Kansas Court of Appeals distinguished the facts in Morriss and found no evidence of an implied contract where plaintiff admitted that he had read a disclaimer contained in an employee manual. Id. Here, the City points to no evidence that plaintiff read its disclaimer. Moreover, in light of the City sick leave policies, a reasonable jury could conclude that the parties mutually agreed to the terms therein. See, e.g., Spielman v. Blue Cross/Blue Shield of Kan., Inc., No. 98-4184-RDR, 2000 WL 33311708, at *7 (Nov. 13, 2000).
The City argues that the city manager could not have entered into a contract with plaintiff because under Kansas law, a city manager is not permitted to enter into an implied contract with an employee. This argument misses the mark. The authority which the City cites deals with a city manager's ability to create an implied or express contract regarding termination of employment. See Riddle v. City of Ottawa, 12 Kan. App. 2d 714, 717, 754 P.2d 465, 469 (1988); K.S.A. § 12-1014. Here, plaintiff does not allege that the city manager created the contract, or that it related to termination of his employment; he asserts that the City's own sick leave policy created a contract.
Finally, the City asserts that at the time plaintiff requested sick leave on July 11, 2000, it had already terminated plaintiff's employment. As discussed above, however, the record supports an inference that the City terminated plaintiff's employment after July 18, 2000. The City is not entitled to summary judgment on plaintiff's claim that the City breached conditions of his employment contract pertaining to sick leave.
IT IS THEREFORE ORDERED that Defendant's Motion For Summary Judgment (Doc. #34) filed March 17, 2003 be and hereby is SUSTAINED in part, as to plaintiff's claims under ERISA, the ADA and the KAAD, and as to plaintiff's state law claim for wrongful termination. Defendant's motion is OVERRULED as to plaintiff's FMLA claim and his claim for breach of conditions of an employment contract. Those claims remain for trial.