Summary
holding “[o]nly an employer is liable for the common-law tort of retaliatory discharge” in context of Kansas statutory violation
Summary of this case from Klaassen v. Univ. of Kan. Sch. of Med.Opinion
No. 109,038.
2013-11-22
Michael L. KERNS, Appellant, v. CITY OF DODGE CITY, KANSAS, Appellee.
Appeal from Ford District Court; Van Z. Hampton, Judge. Larry G. Michel, Blake A. Bittel, and Karen Q. Couch, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, for appellant. Bradley C. Ralph, of Williams, Malone & Ralph, P.A., of Dodge City, for appellee.
Appeal from Ford District Court; Van Z. Hampton, Judge.
Larry G. Michel, Blake A. Bittel, and Karen Q. Couch, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, for appellant. Bradley C. Ralph, of Williams, Malone & Ralph, P.A., of Dodge City, for appellee.
Before GREEN, P.J., PIERRON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Michael L. Kerns was fired from his job with the City of Dodge City (City) for allegedly improperly contacting members of the City Commission in violation of City policy restricting contact concerning job-related problems and grievances. Kerns argues his firing was pretextually based on his involvement in union activities. The district court granted summary judgment to the City finding Kerns had failed to establish a prima facia case of wrongful termination and retaliatory discharge. We affirm.
Kerns began his employment with the City in May of 2003. He worked as a maintenance attendant in the Dodge City Civic Center. Kerns' position fell within the City's Parks and Recreation Department and under the supervision of Paul Lewis. Lewis reported to Cherise Tieben, the assistant city manager, and Ken Strobel, the city manager.
In the fall of 2009, the City gave all employees a questionnaire seeking responses to 18 questions involving topics such as job satisfaction and management. The questionnaire instructed the employees: “Please answer all questions truthfully and return questionnaire no later than October 9th. Questionnaires can be returned to HR, dropped off at the front desk at City Hall or turned into your supervisor. Questionnaires can be placed in a sealed envelope with questionnaire written on the envelope for privacy.” Kerns completed his questionnaire but gave it to another city employee, Chad Kirk, for the purpose of having his questionnaire, along with five others, anonymously delivered directly to City Commissioners. Kerns knew the questionnaire indicated it be returned to Human Resources, the front desk of the City Hall, or to his supervisor and he was acting contrary to those instructions.
On November 5, 2009, Strobel notified Kerns his employment was being terminated under the City policy restricting direct communication of employees to City Commissioners. Chapter 8, § 5 for the Dodge City personnel policy manual lists “Political activity in conflict with the City's policies” as a reason for disciplinary action. Chapter 20, § 2 states: “Under no circumstances shall an employee contact the City commission on job related problems or grievances without the explicit approval of the City manager. Violations of this rule may result in dismissal.” The notice given Kerns stated the following reasons for his termination:
“Unfortunately, your actions in this matter dictate our decision regarding discipline. Although the policy violation alone is cause for termination, the City of Dodge City has stated repeatedly that it will hire and retain only employees that exhibit the City's core values. Values such as honesty, integrity and respect are essential to this organization. Your actions in this matter indicate that you have little or no respect for your fellow employees, you do not respect our [organization's] procedures and your actions indicate your lack of integrity regarding employment matters with which you disagree. Therefore, we have no choice but to advise you that you are terminated from employment with the City of Dodge City.”
In addition to Kerns, the City terminated or accepted resignations from each of the employees involved in delivering the anonymous questionnaires directly to the City Commissioners.
The parties submitted bits and pieces of depositions taken in the case. In his deposition, Kerns stated he was on a safety committee and he had talked to the Fire Chief and Lewis about the south doors of the civic center not opening correctly and he felt the commissioners needed to know about it. Strobel executed an affidavit stating the decision to terminate Kerns was not made with any consideration as to whether he had any involvement with efforts by city employees to organize union representation for employees.
Tieben testified in her deposition that it was no secret city maintenance workers were talking about union activities in 2009. She said the staff became aware of the activities because other employees were concerned that “too much time was being spent on it and they didn't want to be involved with it and they wanted people to focus on their jobs.” Tieben also stated the City administration had discussed at various meetings the efforts of the maintenance workers to unionize.
On January 19, 2011, Kerns filed a petition in district court alleging violations of the Kansas Right–to–Work Amendment (Art. 15, § 12) and retaliatory discharge. The court decided the case by summary judgment. The court granted judgment in favor of the City finding Kerns had failed to establish a prima facie case of retaliatory discharge. The court reasoned the evidence submitted did not establish the City was aware of Kerns individually violating any City policy by engaging in unionization efforts. The court concluded Kerns had failed to establish a prima facie case of retaliatory discharge because Kerns failed to show his discharge was based on any reason other than the violation of city policy by submitting the employment survey directly to the City Commission.
Kerns appeals.
Kerns argues the district court improperly granted summary judgment to the City on the basis that he failed to establish a prima facie case of retaliatory discharge. The standard of review on summary judgment is well known:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009).
There is a well established burden-shifting process for considering claims of retaliatory discharge. The employee must first establish a prima facie case of retaliatory discharge, i.e., termination for exercising a constitutional or statutory right. If that is done, the employer then bears the burden of producing evidence that the employee was terminated for a legitimate nondiscriminatory reason. If that takes place, the burden then shifts back to the employee to prove by a preponderance of the evidence that the legitimate reasons offered were a pretext for the employer's wrongful termination. To avoid summary judgment, the employee must assert specific facts disputing the employer's motive for termination. See Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1276, 38 P.3d 679 (2002) (employee fired for positive drug test for marijuana but claimed retaliatory discharge for workers compensation filing).
The four elements of a prima facie case of a state retaliatory discharge claim generally include: (1) the plaintiff exercised a statutory or constitutional right recognized as a basis for a retaliatory discharge claim; (2) the employer had knowledge of plaintiffs exercise of that right; (3) the employer terminated the plaintiffs employment; and (4) a causal connection existed between the protected activity and the termination. Campbell v. Husky Hogs, 292 Kan. 225, 235, 255 P.3d 1 (2011) (Kansas Wage Payment Act retaliation claim); Goodman v. Wesley Med. Center, 276 Kan. 586, 590, 78 P.3d 817 (2003) (whistleblower retaliation claim); Rebarchek v. Farmers Co-op. Elevator & Mercantile Ass'n, 272 Kan. 546, 554, 35 P.3d 892 (2001) (workers compensation retaliation claim). Only an employer is liable for the common-law tort of retaliatory discharge. Rebarchek, 272 Kan. at 562.
There is really no challenge in the case at bar to the existence of the first three elements listed above: (1) Kerns exercised his right to engage in union activities, (2) the City knew of some efforts by employees to unionize, and (3) Kerns was terminated at a time when union organizing activities were occurring. See K.S.A. 44–831 (an employee has a cause of action against any employer who violates the state's “right to work” amendment, Kan. Const. Art. 15, § 12, by conditioning employment on membership or nonmembership in a union); Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988). However, the causal connection element is clearly at issue. Kerns argues that when the record is viewed in the light most favorable to him, there is a causal connection between his involvement in union activities and his termination sufficient to establish a prima facie case of retaliatory discharge.
Kerns makes sweeping allegations that efforts to unionize were in full swing at the time the City circulated the questionnaire to its employees. The City was discussing the side effects of having only some of the employees in a union, and the topic was addressed at multiple meetings. Kerns also argues that in addition to the timing of the terminations, all six of the employees terminated or who resigned had some level of union involvement. Kerns suggests the City's attempt to discover the names of the anonymously submitted questionnaires also demonstrates the intent to target only those involved in union activities. Last, Kerns argues the questionnaires were “technically not unsolicited ‘job related problems or grievances' as prohibited by City policy” and the city commissioners would learn of the results of the questionnaire anyway. He also points out the City chose to enact the highest level of discipline possible since termination was not mandated, but discretionary, for a violation of the City policy.
Employers rarely admit to retaliatory intent, and plaintiffs must ordinarily rely on circumstantial evidence to prove a prima facie case of retaliatory discharge. Marinhagen v. Boster, Inc., 17 Kan.App.2d 532, 540, 840 P.2d 534 (1992), rev. denied 252 Kan. 1092 (1993). In the context of retaliatory discharge for filing a workers compensation claim, our court has held that the close temporal proximity between the claim and discharge is a typical beginning point for proof of a causal connection and may be “ ‘highly persuasive evidence of retaliation.’ [Citation omitted.]” White v. Tomasic, 31 Kan.App.2d 597, 602, 69 P.3d 208 (2003). Additionally, federal courts have repeatedly held that unless the protected activity and termination are very closely related in time, proximity alone is not enough to prove a causal connection unless it is combined with some other evidence. Sutherland v. Goodyear Tire & Rubber Co., 446 F.Supp.2d 1203, 1214 (D.Kan.2006) (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 [10th Cir.1997] ) (3 months between protected activity and termination by itself was too remote in time to prove causal connection); see also Meiners v. University of Kansas, 359 F.3d 1222, 1231 (10th Cir.2004) (2 1/2–to 3–month gap was too long on its own to prove causation).
Although the district court determined that Kerns had failed to establish a prima facie case of wrongful termination, the court's analysis appears to be that Kerns presented a sufficient case, but the City provided a legitimate nonretaliatory reason for discharge. The district court concluded that Kerns had failed to establish a prima facie case of retaliatory discharge because he failed to show his discharge was based on any reason other than the violation of City policy restricting employee communication with commissioners. It appears the district court is mixing the burden-shifting analysis stated above.
The question then is whether the reason the City offered for Kerns' termination was sufficient. The City correctly asserts that it only needs to articulate a reason for termination. Rebarchek v. Farmers Co-op Elevator & Mercantile Ass'n, 28 Kan.App.2d 104, 111, 13 P.3d 17 (2000), rev'd on other grounds272 Kan. 546, 36 P.3d 892 (2001) (where defendant presented a legitimate reason for plaintiff's discharge despite some question whether the reason stated was actually plaintiff's fault). In Bracken, 272 Kan. 1272, 1278, the court unequivocally stated that where the employee tested positive for drugs, the employer provided a legitimate reason for her termination even though the employer's rationale for making her take the test may have been questionable.
Kerns makes the alternative argument that the City's proffered legitimate nondiscriminatory reason for termination was simply to cover its pretextual anti-union efforts. Kerns relies on the same arguments used to establish his prima facie case, namely the timing of the terminations, the discussion of union activities by City administrators, all employees terminated had union connections, and the severity of punishment imparted on the employees for violating the City policy.
We are not persuaded by Kerns' sweeping allegations. As we previously stated, employers rarely admit to retaliatory intent. However, there is no evidence of any animus by the City toward the union efforts. The City clearly recognized that not all the City employees would fall within the specific union and it would be difficult dealing with union and nonunion employees at the same time. The City also stated it had currently dealt with the police union so it was not unaccustomed to dealing with unions. Further, the City dispensed similar punishment to all participants who had sent the unauthorized communications to the City Commissioners in clear violation of the directions and also City policy. Kerns' has not produced any evidence from which a reasonable person could disbelieve the City's evidence that Kerns sending his completed questionnaire to the City commissioners was the motivating factor behind the City's decision to fire him. Accordingly, we find that, assuming Kerns could establish a prima facie case of retaliatory discharge based on his union activities, he has failed to show a triable issue of fact as to the legitimacy of the reason the City proferred for its decision to terminate him.
We pause to comment on a couple additional points not raised by the parties. Actions filed pursuant to the right to work amendment in Article 15, § 12 of the Kansas Constitution, as enforceable through K.S.A. 44–831, are to be commenced within 1 year after the cause of action shall have accrued. See K.S.A. 44–831 (“Any action authorized by this section shall be commenced within one year after the cause of action shall have accrued.”). The City terminated Kerns on November 5, 2009. Kerns did not file his petition until January 19, 2011. Both of Kerns' claims are based on him promoting union activities. Consequently, Kerns' petition was untimely under K.S.A. 44–831. Further, Kerns has not cited any cases recognizing a common-law claim for retaliatory discharge based on promoting of union activities which would take it out of K.S.A. 44–831 and subject it to a 2–year statute of limitations under K.S.A. 60–513(a)(4) for the tort of wrongful or retaliatory discharge. See, e.g., Burnett v. Southwestern Bell Telephone, 283 Kan. 134, 144, 151 P.3d 837 (2007); Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, 464, 790 P.2d 404 (1990). The court in Husky Hogs, 292 Kan. at 227–28 stated;
“There are also exceptions recognized by Kansas courts through our case law. Over the past 30 years, exceptions to the at-will doctrine created a common-law tort for retaliatory discharge. These exceptions gradually eroded the general terminable-at-will rule when an employee is fired in contravention of a recognized state public policy. Ortegav. IBP, Inc., 255 Kan. 513, 518, 874 P.2d 1188 (1994) (‘[I]t is clear that this state has recognized exceptions to the doctrine of employment-at-will when an employee is discharged in contravention of public policy.’); Anco Constr. Co, v. Freeman, 236 Kan. 626, Syl. ¶ 5, 693 P.2d 1183 (1985) (‘When an employee is terminated in violation of federal public policy, however, no state cause of action is pled.’).
“To date, this court has endorsed public policy exceptions in four circumstances: (1) filing a claim under the Kansas Workers Compensation Act, K.S.A. 44–501 et seq. ; (2) whistleblowing; (3) filing a claim under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 (2006)et seq.; and (4) exercising a public employee's First Amendment right to free speech on an issue of public concern, Anco Constr. Co., 236 Kan. at 629 (workers compensation); Palmer v. Brown, 242 Kan. 893, 900, 752 P.2d 685 (1988) (whistleblowing based on good-faith reporting of coworkers or employers infraction pertaining to public health and safety); Hysten v. Burlington Northern Santa Fe Ry. Co., 277 Kan. 551, 561, 108 P.3d 437 (2004) (FELA); Larson v. Ruskowitz, 252 Kan. 963, 974–75, 850 P.2d 253 (1993) (retaliatory discharge claim when a public employee is terminated for exercising First Amendment rights to free speech on an issue of public concern); see also Flenker v. Willamette Industries, Inc., 266 Kan. 198, 204, 967 P.2d 295 (1998) (whistleblowing based on good-faith reporting of federal Occupational Safety and Health Act violations); Coleman v. Safeway Stores, Inc., 242 Kan. 804, 815,752 P.2d 645 (1988) (employer prohibited from terminating employee because of absence caused by work-related injury and potential workers compensation claim), overruled on other grounds by Gonzalez–Centeno v. North Central Kansas Regional Juvenile Detention Facility, 278 Kan. 427, 101 P.3d 1170 (2004); Cox v. United Technologies, 240 Kan. 95, Syl., 727 P.2d 456 (1986) (recognizing tort of retaliatory discharge for filing a workers compensation claim but declining to apply it under specific facts of case), overruled on other grounds by Coleman, 242 Kan. at 813–15.”
Affirmed.