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dismissing common law wrongful discharge claims based on the KAAD and KADEA and collecting cases
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CIVIL ACTION No. 00-2053-KHV.
November 17, 2000.
MEMORANDUM AND ORDER
Jacqueline M. Doebele brings suit against Sprint Corporation and Sprint PCS (collectively referred to as "Sprint") for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615, and for wrongful discharge. Plaintiff alleges two common law claims for wrongful discharge in violation of Kansas public policy. One is based on the Kansas workers' compensation policies; the second is based on the public policies embodied in the Kansas Act Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq., and the Kansas Age Discrimination in Employment Act ("KADEA"), K.S.A. § 44-1111 et seq. This matter comes before the Court on defendants' motion to dismiss plaintiff's common law wrongful discharge claims (Doc. # 9) filed June 26, 2000 and Plaintiff's Motion For Leave To File Surreply To Defendant's Response To Plaintiff's Memorandum In Opposition To Defendant's Motion To Dismiss Plaintiff's Claims (Doc. # 15) filed August 21, 2000. For reasons stated below, defendants' motion to dismiss is sustained in part and overruled in part and plaintiff's motion for leave to file a surreply is overruled.
Defendants ask the Court to dismiss plaintiff's ADA claims both on substantive grounds and on grounds of untimeliness. Defendants have conceded, however, that the claims are in fact timely. See Defendants' Response To Plaintiff's Memorandum In Opposition To Defendants' Motion To Dismiss Plaintiff's Claims (Doc. # 13) filed August 1, 2000 at 1.
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 her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of her claims, she 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:
From October 1996 until her termination in April 1999, Sprint employed plaintiff as a Financial Analyst in the Tables Department. Throughout plaintiff's employment various employees ostracized and harassed her, which "exacerbated or perhaps precipitated" her disabilities. See Complaint (Doc. # 1) filed January 31, 2000 ¶ 12. Plaintiff's alleged disabilities include bi-polar disorder, hypothyroidism and adult Attention Deficit Disorder. Plaintiff was under the care of Dr. Urdaneta, a psychiatrist, for these disorders.
In November 1997, plaintiff reported the alleged harassment to her supervisor, Lorrie McCurdy, and to Bridget Carson, a director above McCurdy. The alleged harassment continued and relations between plaintiff, her coworkers and McCurdy continued to deteriorate. On July 22, 1998, plaintiff received a written warning for inappropriate workplace behavior. The following day, Dr. Urdaneta placed plaintiff on a medical leave of absence until August 10, 1998, which he later extended through September 28, 1998. Plaintiff returned to work on that date. Two months later, on December 4, 1998, plaintiff received another written warning. On December 7, 1998, plaintiff filed a complaint with Sprint's Human Resources Department, alleging harassment and discrimination based on her disability, and Dr. Urdaneta placed plaintiff on a second medical leave. Around this same time, plaintiff applied for disability benefits under defendants' short term disability plan. On the application form, plaintiff indicated that her illness was work related. See Complaint at Exhibit J. In a letter dated January 14, 1999, Sprint's Human Resource Department sent workers' compensation forms to plaintiff "in case [she was] interested in applying for workers compensation benefits." Id. On March 11, 1999, plaintiff returned to work after the second medical leave. Approximately five weeks later, Sprint terminated her employment.
Analysis
I. Plaintiff's Motion For Leave To File A SurreplyDefendants have filed a reply in support of their motion to dismiss. The reply includes two affidavits that were not included with the original motion to dismiss. Based on the affidavits, defendants ask the Court to convert their motion to dismiss into one for summary judgment. In response, plaintiff asks the Court to disregard the new material. Alternatively, plaintiff seeks leave to file a surreply. D. Kan. R. 7.1(b) governs motion practice in this Court. The rule permits parties to file a dispositive motion, a response to the motion, and a reply by the movant. Id.; Thurston v. Page, 931 F. Supp. 765, 768 (D.Kan. 1996). Courts in this district have been reluctant to consider issues raised for the first time in a reply brief. See Thurston, 931 F. Supp. at 768 ("The court will not consider the new argument . . . presented in defendant's reply brief when that issue was not raised in the initial motion for summary judgment.") (citing Glad v. Thomas County Nat'l Bank, No. 87-1299-C, 1990 WL 171068 (D.Kan. Oct. 10, 1990) (court will not consider new arguments and issues presented in a reply brief because plaintiff has not had an opportunity to respond)); Mike v. Dymon, Inc., No. 95-2405-EEO, 1996 WL 427761, at *2 (D.Kan. July 25, 1996) ("In pursuit of fairness and proper notice, the court generally summarily denies or excludes all arguments and issues first raised in reply briefs.") (internal quotations omitted) (quoting Wagher v. Guy's Foods, Inc., 765 F. Supp. 667, 671 (D.Kan. 1991)). Medina v. City of Osawatomie, 992 F. Supp. 1269, 1272-73 (D.Kan. 1998).
Based on the above authorities, the Court will disregard the affidavits which are attached to defendants' reply. Furthermore, plaintiff deserves an opportunity to conduct discovery on the factual issues which are raised in the affidavits. Accordingly, the Court declines to convert the motion to dismiss to a motion for summary judgment. Plaintiff's motion for leave to file a surreply is therefore overruled.
II. Wrongful Discharge In Violation Of Workers' Compensation Laws
Defendants argue that Count IV must be dismissed for failure to state a claim because (1) plaintiff did not file a workers' compensation claim or allege that she suffered a work related injury; and (2) plaintiff did not allege that the individuals who fired her were aware of her alleged injury. In response, plaintiff argues that she has alleged that at least one employee in Sprint's Human Resources Department knew that plaintiff claimed a work related injury and that this fact is sufficient to survive a motion to dismiss.
Kansas is an at-will employment state. Ortega v. IBP, Inc., 255 Kan. 513, 516, 874 P.2d 1188, 1191 (1994). Kansas recognizes an exception to employment-at-will, however, where an employee is terminated in retaliation for exercising rights under the Kansas workers' compensation laws. Murphy v. City of Topeka-Shawnee County Dep't of Labor Servs., 6 Kan. App.2d 488, 496-97, 630 P.2d 186, 192-93 (1981). This exception also applies when an employer retaliates against an employee after a work related injury, but prior to the actual filing of the workers' compensation claim. Chrisman v. Philips Indus., Inc., 242 Kan. 772, 775, 751 P.2d 140, 142 (1998). A prima facie case of retaliatory discharge requires a showing of four elements: (1) the employee filed a workers' compensation claim or sustained an injury for which a workers' compensation claim could be asserted in the future; (2) the employer had knowledge of the workers' compensation claim or the fact that the employee had sustained a work-related injury; (3) the employer terminated the employee; and (4) a causal connection exists between the protected activity or injury and the termination. Ortega v. IBP, Inc., No. 92-2351, 1994 WL 373887, at * 6 (D.Kan. July 1, 1994).
Plaintiff has alleged that she suffered an injury for which she could file a workers' compensation claim. See Complaint ¶ 65 (alleging discharge "for having suffered from work-related exacerbation of pre-existing mental an [sic] physical conditions"); id. at Exhibit J (stating that plaintiff's application for short term disability benefits "attributed [her] illness to work"). In addition, prior to plaintiff's termination, at least two employees in Sprint's Human Resources Department knew that plaintiff claimed a work related injury. See id. (stating that Abbie Dillard and Anita Edwards knew that plaintiff may have suffered a work related illness). Finally, plaintiff has alleged a causal connection. See Complaint ¶ 65 (alleging that defendants discharged plaintiff "for the purpose of impairing plaintiff's ability to [bring a workers' compensation] claim").
It is unclear whether plaintiff's supervisor also knew that plaintiff's disabilities were potentially work related. The knowledge of plaintiff's supervisor is immaterial at this point, however, because plaintiff has alleged that two employees in the Human Resources Department had the requisite knowledge.
Plaintiff has alleged a prima facie case of retaliatory discharge in violation of the policies in the Kansas workers' compensation act. For these reasons, defendants' motion to dismiss Count IV is overruled.
III. Wrongful Discharge In Violation Of KAAD And KADEA
In Count V, plaintiff asserts a common law wrongful discharge claim based on the KAAD and KADEA. Defendants argue that Count V is barred because adequate statutory remedies are available. Plaintiff argues that the remedies available under the state statutes are inadequate due to the complexity of the administrative process and limits on damages. In the alternative, plaintiff argues that the Court should certify to the Kansas Supreme Court the question whether the KAAD or KADEA precludes a common law wrongful discharge claim.
Count V of plaintiff's complaint alleges wrongful discharge based on both the KAAD and KADEA. See Complaint ¶¶ 69, 72. Defendants only indirectly challenge the sufficiency of plaintiff's claim based on the KADEA. Because defendants ask for dismissal of Count V in its entirety, the Court will analyze the adequacy of remedies under both the KAAD and KADEA.
The Court is not persuaded by plaintiff's arguments for certification. Defendants' motion does not raise any questions 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, No. 00-2054, 2000 WL 968780, at *5 (D.Kan. May 18, 2000); Cessna Aircraft Co. v. Hartford Accident Indem. Co., 91-2346, 1993 WL 65687, at *2 (D.Kan. Feb. 17, 1993).
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 710. The reasoning of Polson has been extended to preclude wrongful discharge claims based on the policies contained in the KADEA. See Veale v. Sprint Corp., No. 95-2379, 1997 WL 49114, at *2 (D.Kan. Feb. 3, 1997); Schartz v. Unified Sch. Dist. No. 512, 953 F. Supp. 1208, 1219 (D.Kan. 1997); Lay v. Heathwood Oil Co., No. 89-2408, 1992 WL 97771, at *1 (D.Kan. 1992). The Kansas Supreme Court also has adopted the reasoning of Polson. See Flenker v. Willamette Indus., Inc., 266 Kan. 198, 209, 967 P.2d 295, 303 (1998).
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. Under Polson and Flenker, the KAAD provides an adequate substitute for state common law remedies. The KADEA incorporates the complaint procedures of the KAAD. See K.S.A. § 44-1115. It therefore follows that the KADEA also provides an adequate remedy. See Veale, 1997 WL 49114, at *2; Schartz, 953 F. Supp. at 1219; Lay, 1992 WL 97771, at *1. For these reasons, defendants' motion to dismiss plaintiff's wrongful discharge claim based upon the KAAD and the KADEA is sustained.
IT IS THEREFORE ORDERED that Defendants' Motion To Dismiss Plaintiff's Claims (Doc. # 9) filed June 26, 2000 be and hereby is OVERRULED as to plaintiff's wrongful discharge claim in violation of the Kansas workers' compensation act (Count IV) and SUSTAINED as to plaintiff's claims for wrongful discharge in violation of the KAAD and KADEA (Count V).
IT IS FURTHER ORDERED that plaintiff's Motion For Leave To File Surreply To Defendant's Response To Plaintiff's Memorandum In Opposition To Defendant's Motion To Dismiss
Plaintiff's Claims (Doc. # 15) filed August 21, 2000 be and hereby is OVERRULED.