Opinion
Civil Action No. 99-2173-KHV.
July 18, 2000.
MEMORANDUM AND ORDER
In this diversity action, Dale Wesselman brought suit against his former employer, Belger Cartage Service, Inc. ("Belger"), for retaliatory discharge under the Kansas Workers' Compensation Act, K.S.A. § 44-501 et seq. The Court granted defendant's motion for summary judgment and dismissed the case. See Memorandum and Order (Doc. # 65) filed April 4, 2000. The Court found that plaintiff's inability to work from the date of his discharge precluded him from setting forth a wrongful discharge claim under Kansas law. This matter comes before the Court on Plaintiff's Motion To Alter Or Amend Judgment Or, In The Alternative, For Certification Of A Question Of State Law Pursuant To K.S.A. § 60-3201, et seq. (Doc. # 67) filled April 18, 2000. For reasons set forth below, plaintiff's motion is sustained in part and overruled in part.
Facts
The Court previously set out the relevant facts in this case.See Memorandum and Order (Doc. # 65) filed April 4, 2000. For purposes of this motion, the Court briefly summarizes its prior discussion.
In October, 1995, Belger Cartage Services hired plaintiff as a "driver/loader" in its facility in Lenexa, Kansas. On May 11, 1996, plaintiff sustained an injury on a job at a printing company. The following day plaintiff reported his injury to supervisor John Otto.
Frequently over the next few weeks, before sending plaintiff out on jobs, Otto asked plaintiff how he felt. Plaintiff repeatedly talked with Otto about his need to see a doctor for continuing pain. Otto told him that this discussion could lead to his termination. Otto said that he was trying to keep plaintiff from seeing the doctor because Belger had so many workers' compensation claims.
On June 4, 1996, plaintiff told Otto that he had pain and needed to go home. Otto told plaintiff that he could not go home. Plaintiff nonetheless timed out and left a note which said that he had gone home sick. Later that day, plaintiff telephoned Otto and said that he was still sore and needed to see a doctor. On June 4, 1996, because he had been insubordinate in walking off the job after Otto told him not to, Belger terminated plaintiff's employment.
On June 10, 1996, plaintiff discussed his discharge with three Belger representatives, including Otto and terminal manager Fred Sirclum. Sirclum told plaintiff that he was upholding the decision. Plaintiff testified that in the meeting, Sirclum stated that there had been no insubordination; rather, the agreement was that plaintiff no longer would be working for Belger. When plaintiff asked about his injuries, the three Belger representatives told him that nothing could be done.
Work restrictions have precluded plaintiff from working in any job since Belger fired him. Plaintiff has not been able to perform the duties of his position due to work restrictions imposed as a result of his medical condition. On February 11, 1999, plaintiff's physician restricted him from returning to "his previous employer in any capacity for an indefinite period of time" and also restricted him from working in any job which required much bending and lifting. Plaintiff has received total temporary disability benefits from Belger, and his workers' compensation claim against the company is still pending.
Analysis
The Court has discretion whether to grant or deny a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. Western Resources, Inc., 929 F. Supp. 1349, 1360 (D. Kan. 1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed.See Voelkel v. General Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan.), aff'd, 43 F.3d 1484 (10th Cir. 1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992).
In his motion to reconsider, plaintiff again argues that evidence that he was unable to perform his former job after his termination was "after-acquired evidence" and thus was not relevant to the question whether defendant had retaliatory intent in terminating him.See Riddle v. Wal-Mart Stores, Inc., 998 P.2d 114, 2000 WL 192795 (Kan.Ct.App. 2000). The Court agrees that defendant may not use after-acquired evidence as an affirmative defense to plaintiff's claim of retaliatory intent, because such evidence necessarily played no role in defendant's decision to terminate. Although defendant may not use such evidence as an affirmative defense to plaintiff's claim, however, after-acquired evidence is relevant on the issue of plaintiff's damages. In its prior order, the Court essentially held that after-acquired evidence of plaintiff's inability to work from the time of discharge to the present date prevented him from any recovery for retaliatory discharge. See Memorandum And Order (Doc. #64) filed April 4, 2000 at 9. After further consideration, however, the Court limits its prior ruling to any recovery based on lost wages. See Sanjuan v. IBP, Inc., 160 F.3d 1291, 1300 (10th Cir. 1998) (wages lost as a result of work injury are properly awarded under Workers Compensation Act rather than in suit for retaliatory discharge). In other words, the Court holds that plaintiff may still pursue other types of damages on his retaliatory discharge claim. See Sanjuan v. IBP, Inc., 78 F. Supp.2d 1195, 1195 (D. Kan. 1999) (jury awarded damages in part for embarrassment, humiliation and emotional distress); Newell v. K-Mart Corp., 35 F. Supp.2d 1312, 1318 (D. Kan. 1999) (same), rev'd on other grounds, No. 99-3067, ___ F.3d ___ (10th Cir. July 12, 2000). After-acquired evidence that plaintiff was unable to work after the date of termination does not defeat his cause of action for retaliatory discharge but merely limits the damages which he may recover.
In reaching this conclusion, the Court finds persuasive the recent opinion of the Honorable Dale E. Saffels in Sanjuan v. IBP, Inc., 90 F. Supp.2d 1208, 1212-14 (D. Kan. 2000). There, Judge Saffels stated:
The court does not read the opinions of Griffin or Coleman to require that an employee prove they were able to work within medical restrictions on the day they were discharged in order to maintain a retaliation claim. Such an exacting interpretation of Griffin would create a substantial loophole. An employer could terminate an injured employee the moment they are injured before it is determined whether they will be able to resume their pre-injury duties. Most injured workers are temporarily unable to perform their job due to physical trauma, medication, or hospitalization. The only injured workers that would be safe from employer retaliation would be those with minor injuries who could immediately return to their position. It would be anomalous for this court to hold an employer may not fire an employee in retaliation for filing a workers' compensation claim, and then to hold an employer can fire an employee for inability to return to his former job which is due to injuries that are the basis for the workers' compensation claim.
This court does not believe that the Kansas Court of Appeals intended for the statement in Griffin to be used as a rubber stamp, allowing courts to summarily dismiss all retaliation claims in which the employee was unable to perform his job within medical restrictions on the day he was fired. The defendant cites a series of cases which use Griffin as a basis for dismissing retaliation claims. However, these cases involve employees who were fired only after a permanent injury was diagnosed or involve other distinguishable facts. . . . In this case, Sanjuan had not been determined to have sustained a permanent injury at the time of discharge, and he was not discharged pursuant to a neutral absenteeism policy, but rather for poor work performance.
The same protection afforded absent employees should be afforded those injured employees who elect to work light duty rather than sit at home. Before an injured employee can be terminated, there must be clear evidence that the injured worker will be unable to perform his former job. If the employee clearly can not return to his former position, then there is no evidence of an improper retaliatory motive. However, absent clear evidence, the employer must give the injured employee time to recover. "Where an employer terminates an injured employee after only a brief period for recovery has elapsed, courts have generally found the employee has stated a cognizable cause of action." Raymond v. Archer Daniels Midland Co., 762 F. Supp. 901, 905, n. 6 (D. Kan.1991) (citing Horn v. Davis Elec. Constructors, Inc., 302 S.C. 484, 395 S.E.2d 724, 727 (App.Ct. 1990), which held ten days was not a reasonable period of time to allow the employee, who was not permanently-totally disabled, to demonstrate his ability to return to work).Id. at 1212-13 (emphasis added).
Based on the reasoning of Sanjuan, plaintiff may maintain his retaliation claim because defendant has failed to show that at the time of discharge, it had clear evidence that he had a permanent injury or would be unable to return to work within the foreseeable future. See id. at 1212-13. The Court notes that plaintiff cannot recover lost wages because he admits that he has been unable to work in his former position since the time of his discharge. See Sanjuan, 160 F.3d at 1300. The Court cannot grant summary judgment in defendant's favor, however, because it has not shown an absence of disputed fact on plaintiff's claim for non-economic damages such as embarrassment, humiliation and emotional distress.
IT IS THEREFORE ORDERED that Plaintiff's Motion To Alter Or Amend Judgment Or, In The Alternative, For Certification Of A Question Of State Law Pursuant To K.S.A. § 60-3201, et seq. (Doc. # 67) filled April 18, 2000, be and hereby is SUSTAINED in part and OVERRULED in part. The Court's Memorandum And Order (Doc. #64) filed April 4, 2000 is modified as discussed herein. Accordingly, Defendant's Motion For Summary Judgment (Doc. #54) filed February 14, 2000 is SUSTAINED in part and OVERRULED in part.
IT IS FURTHER ORDERED that the Judgment (Doc. #65) is VACATED. The Clerk is directed to reopen the case.