Opinion
No. 110,179.
2014-05-2
Rachel PLATT, Appellant, v. KANSAS STATE UNIVERSITY, Appellee.
Appeal from Riley District Court; David L. Stutzman, Judge. Mark Beam–Ward, of Beam–Ward, Kruse, Wilson & Fletes, LLC, of Overland Park, for appellant. Maureen A. Redeker, of Kansas State University, of Manhattan, for appellee.
As Modified Nov. 3, 2014.
Appeal from Riley District Court; David L. Stutzman, Judge.
Mark Beam–Ward, of Beam–Ward, Kruse, Wilson & Fletes, LLC, of Overland Park, for appellant. Maureen A. Redeker, of Kansas State University, of Manhattan, for appellee.
Rachel Platt appeals from the district court's decision to summarily dismiss her claim of retaliatory discharge against Kansas State University (University). Finding her claim was governed exclusively by the Kansas Judicial Review Act (KJRA), K.S.A. 77–601 et seq. , the district court held dismissal was required because Platt's failure to exhaust administrative remedies as required by the KJRA deprived the court of subject matter jurisdiction. For the reasons stated below, we conclude the district court erred in finding Platt's claim was governed by the KJRA and, in turn, finding that she was required to exhaust administrative remedies before filing suit. Alternatively, we conclude that even if her claim had been governed by the KJRA, Platt was relieved from its requirement to exhaust because there was no administrative remedy available to her.
The following facts are taken from the petition filed by Platt and are assumed to be true for purposes of reviewing the district court's ruling on Platt's motion to dismiss. See Cohen v. Battaglia, 296 Kan. 542, 545–46, 293 P.3d 752 (2013) (district court's decision on motion to dismiss is subject to unlimited review and appellate court must accept the facts alleged by the plaintiff as true).
Platt was hired as a probationary employee by the University on September 21, 2011. Shortly after beginning her employment, she began to suffer from headaches and migraines, head and nasal congestion, nausea, sneezing, and burning eyes. Platt complained about the air quality in her office to her supervisor. Platt's supervisor told her that Crystal Hamer, the person who occupied the office before Platt, had also complained of similar air quality and health problems. After determining that there were problems with the ventilation system in Platt's office, the University attempted to improve the air quality by cleaning the grates on the ventilator system. Platt brought an air purifier to her office in an attempt to improve the air quality conditions herself. The University discussed the possibility of having an industrial hygienist evaluate the air quality conditions in Platt's office.
Platt's status as a probationary employee was scheduled to expire on or around March 21, 2012. Although Platt claimed she performed her job duties in a satisfactory manner during her employment, the University terminated Platt on March 7, 2012, citing excessive absences as the reason for her termination. Platt's termination occurred on the same day she met with Dr. El–Sotouey, an industrial hygienist.
On March 20, 2013, Platt filed a lawsuit in district court asserting she was wrongfully terminated from her employment in retaliation for having a potential claim under the Kansas Workers Compensation Act (KWCA), K.S.A. 44–501 et seq. In support of her assertion, Platt alleged she suffered a work-related injury (headaches, congestion, nausea, sneezing, and burning eyes due to poor air quality and ventilation) giving rise to a viable workers compensation claim, she told her supervisor about the injury, and then she was discharged (for absences directly resulting from the work-related injury) before she had an opportunity to pursue the KWCA claim. She further asserted the University wrongfully used absences directly caused by her work-related illnesses as the basis for her termination.
In lieu of an answer, the University filed a motion to dismiss the suit for failure to state a claim (governmental immunity) and lack of subject matter jurisdiction (failure to exhaust administrative remedies). The district court granted the motion to dismiss based solely on Platt's failure to exhaust administrative remedies; the court did not address the University's argument regarding dismissal based on governmental immunity. Platt filed a motion to reconsider, arguing in part that the district court made erroneous assumptions of fact beyond the scope of the pleadings in dismissing the case. In conjunction with this argument, Platt attached to the motion several exhibits she claimed the district court should review if it was going to consider matters beyond the scope of the pleadings in dismissing her claim. The University filed a motion to strike these exhibits, claiming a motion to reconsider is not a proper vehicle to advance new allegations, arguments, and evidence that were previously available to Platt. The district court ultimately denied the motion to reconsider because it did not present any new argument. The court also declined to consider the exhibits submitted by Platt in conjunction with her motion based on Platt's failure to explain why they could not have been submitted with an earlier pleading.
Platt appeals from the district court's decision to dismiss, arguing she was not required to exhaust administrative remedies because her claim of retaliation sounds in tort and therefore falls outside the purview of the KJRA. Platt also argues the district court erroneously made inferences in the University's favor when deciding the motion to dismiss and declined to consider the evidence Platt submitted with her motion to reconsider.
Whether a district court erred by granting a motion to dismiss is a question of law subject to unlimited review. The appellate court will view the well-pleaded facts in a light most favorable to the plaintiff and assume as true those facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, then dismissal is improper. Battaglia, 296 Kan. at 545–46.
In the motion to dismiss it filed with the district court, the University asserted that Platt's petition failed to state a claim upon which relief could be granted because she was procedurally barred from filing suit based on her failure to strictly comply with the exhaustion requirements of K.S.A.2013 Supp. 77–612. In response, Platt argued she was not required to exhaust administrative remedies because her claim of retaliatory discharge was pled as a common-law tort based on wrongful conduct and was not based on “agency action” as is required to come within the purview of the KJRA. See K.S.A.2013 Supp. 77–603(a) (the KJRA only applies to appeals of “agency actions”).
The tort of retaliatory discharge was first recognized by a Kansas court in Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981). Seven years later, the Kansas Supreme Court ruled in Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988), disapproved on other grounds by Gonzalez–Centeno v. North Central Kansas Regional Juvenile Detention Facility, 278 Kan. 427, 101 P.3d 1170 (2004), that an employer could not terminate an employee on the basis of absences due to a work-related injury. In a case very similar to the one here, the court expanded on its ruling in Coleman to provide protection to employees who the employer has reason to believe might file a workers compensation claim. Ortega v. IBP, Inc., 255 Kan. 513, 516–17, 874 P.2d 1188 (1994) (prohibiting employer from firing employee who is absent from work due to work-related injury and who might file workers compensation claim), disapproved on other grounds by In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008).
Although it does not dispute that Kansas recognizes the common-law tort claim of retaliatory discharge, the University contends that such a claim is governed by the exclusive remedy provision of the KJRA when the claim challenges an administrative decision to terminate the employment of a state agency employee. In support of its contention, the University cites to numerous cases where Kansas appellate courts have found the KJRA to be the exclusive remedy for claims of wrongful discharge. See Heiland v. Dunnick, 270 Kan. 663, 668–69, 19 P.3d 103 (2001) (KJRA is the exclusive remedy for review of state employee's termination); Gaskill v. Ft. Hays State Univ., 31 Kan.App.2d 544, 70 P.3d 693 (2003) (KJRA is the exclusive remedy for claims of wrongful termination by state employees); Douglass v. Kansas State University, 22 Kan.App.2d 171, 915 P.2d 782 (KJRA is the exclusive remedy for breach of contract action brought by state university professor against university), rev. denied 259 Kan. 927 (1996).
But the University's reliance on these cases is misplaced. In Heiland, the plaintiff was laid off by the Kansas Savings and Loan Department, which was ultimately replaced by the Office of the State Bank Commissioner (SBC). Steven C. Heiland filed suit against SBC claiming he was entitled to, but was denied, a preferential position on a reemployment list as required under K.S.A. 75–2948. Finding Heiland's claims involved the SBC's failure to perform a duty imposed by statute to benefit state employees in Heiland's position, the court found the KJRA applicable. In the other two cases cited by the University, the claims for wrongful discharge involved the agency's failure to perform a duty imposed by contract. See Gaskill, 31 Kan.App.2d at 546 (KJRA was exclusive remedy for wrongful discharge in professor's breach of contract action against state university); Douglass, 22 Kan.App.2d at 173 (same).
Unlike the cases cited above, Platt's claim for retaliatory discharge does not involve the University's performance of, or failure to perform, an agency duty, function, or activity imposed by statute, regulation, rule, or even contract. Instead, Platt seeks damages caused by a wrongful and tortious act alleged to have been committed by a state agency. Given her claim, we find the Kansas Supreme Court's holding in Lindenman v. Umscheid, 255 Kan. 610, 875 P.2d 964 (1994), is instructive. In Lindenman, the plaintiffs prevailed at the administrative level in an action aimed solely at forcing the Kansas Department of Health and Environment (KDHE) to lift its suspension of the license of one of their daycare centers. Thereafter, the plaintiffs filed a tort action against KDHE alleging a violation of their civil rights, malicious prosecution, and abuse of process. The trial court granted KDHE's dispositive motions on grounds that the KJRA was the exclusive remedy and the Lindenmans failed to file their petition within 30 days after the final agency action as required by the KJRA. The Kansas Supreme Court reversed, holding that because the claims were tort claims for wrongful acts, they did not fall under the KJRA.
“The KJRA applies to ‘all agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute from the provisions of this act.’ K.S.A. 77–603(a). Agencies are defined as those that are ‘a state agency.’ K.S.A. 77–602(a). In accordance with K.S.A. 77–603, the KJRA establishes the exclusive means of judicial review of agency action. K.S.A. 77–606. Agency action is defined as ‘(1) The whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and regulation or an order; or (3) an agency's performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise.’ K.S.A. 77–602(b). The wrongful acts alleged by the plaintiffs are not licensing and inspection duties of KDHE, they are claims for damages for wrongful acts committed by the agency. Judicial review is not defined in the KJRA. Black's Law Dictionary 849 (6th ed.1990) defines judicial review as the ‘[p]ower of courts to review decisions of another department or level of government’ and as a ‘[f]orm of appeal from an administrative body to the courts for review of either the findings of fact, or of law, or of both.’
“We conclude that the KJRA applies to all proceedings for judicial review of agency proceedings and civil enforcement of agency actions. Here, the Lindenmans are not seeking a review by the courts of KDHE's findings of fact, conclusions of law, or decision. They filed a combined tort and civil rights claim against KDHE and other defendants. When K.S.A. 77–603 and the definition of judicial review are considered, it is clear that the district court erred in finding the KJRA was the exclusive remedy for the Lindenmans' tort claim against the agency. Because the KJRA does not apply to civil tort actions against an administrative agency, the grounds for dismissal and summary judgment stated by the district court must now be reviewed.” Lindenman, 255 Kan. at 619–20.
Like the plaintiff in Lindenman, Platt is not seeking a review by the court of the process by which the University—as an agency—performs, or fails to perform, its statutory duties, functions, or activities. In those instances, exhaustion of administrative remedies serves a valuable purpose because it (1) provides agencies an opportunity to apply their expertise to correct their own errors; (2) makes judicial review easier by permitting parties and agencies to develop the facts in an administrative proceeding; and (3) promotes judicial economy by avoiding needless repetition of factfinding and perhaps by avoiding the necessity of any judicial involvement at all.
Instead, Platt seeks redress from the court for a tortious act committed by the University unrelated to the agency's administrative function as an institution of higher education. And in this case, exhaustion would serve no valuable purpose. As an agency, the University's expertise is higher education. Because Platt's common-law tort claim for retaliatory discharge is unrelated to the subject of higher education, we find requiring Platt to provide the University an opportunity to review Platt's retaliatory discharge claim would serve no purpose. And given the University has not identified the administrative process Platt failed to exhaust, there are no facts from which we can conclude that exhaustion would make judicial review easier, duplicative fact finding unnecessary, or the need for judicial involvement avoidable. Given the facts presented and the applicable law, we necessarily conclude Platt's common-law tort claim for retaliatory discharge is not governed by the KJRA and, in turn, she is not required to exhaust administrative remedies before bringing suit on this claim.
As an alternative basis for our holding, we conclude that—even if her claim had been governed by the KJRA—Platt was relieved from its requirement to exhaust administrative remedies because there was no administrative remedy available to her. Kansas law recognizes exceptions to the exhaustion rule set forth in the KJRA where no administrative remedy is available or the remedy is inadequate to address the problem. Colorado Interstate Gas Co. v. Beshears, 18 Kan.App.2d 814, 821, 860 P.2d 56 (1993), rev. denied 256 Kan. 994 (1994); see K.S.A.2013 Supp. 77–612(d) (court may relieve petitioner of requirement to exhaust any or all administrative remedies to the extent that administrative remedies are inadequate or would result in irreparable harm).
In this case, Platt alleges the University wrongfully terminated her employment in retaliation for having a potential claim under the KWCA and, in doing so, wrongfully used absences directly caused by her work-related illnesses as the basis for her termination. Kansas law recognizes the common-law tort of retaliatory discharge under the facts as alleged by Platt. See Ortega, 255 Kan. at 516 (holding that even where employee has not filed workers compensation claim, employer is prohibited from firing employee who is absent from work due to work-related injury and who might file claim); Coleman, 242 Kan. at 815–16. Accordingly, Platt filed this retaliatory discharge lawsuit in district court. In so doing, Platt sought only money damages against the University.
In support of the motion to dismiss filed with the district court, the University argued that Platt failed to comply with the “applicable, administrative procedural prerequisite” as required by the KJRA before seeking redress from the court on her claim of retaliatory discharge. See K.S.A.2013 Supp. 77–612. We note, as a preliminary matter, that the University did not identify the administrative procedure with which Platt should have complied. As an affirmative defense, the University had the burden of pleading and proving that Platt failed to exhaust administrative remedies. See In re Estate of Tracy, 36 Kan.App.2d 401, 404, 140 P.3d 1045 (2006) (citing Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 [1992] ). An affirmative defense must be pled so that it provides an opponent with fair notice of the nature of the defense. In re Tracy, 36 Kan.App.2d at 404 (citing 61A Am.Jur.2d, Pleading § 287, p. 244). Because it failed in its motion to dismiss to identify the administrative procedure with which Platt should have complied, we question whether the University provided Platt with fair notice of the nature of the defense, i.e., the administrative remedy she failed to exhaust.
In its brief on appeal, however, the University asserts for the first time that Platt should have sought redress for her termination from the University's Support Staff Peer Review Committee, which purportedly would have provided her a fair hearing before an impartial panel. In conjunction with this assertion, the University provides us with a website address for that portion of its Policies and Procedures Manual that outlines the peer review committee process. Even if we could consider evidence that was not presented to, or considered by, the district court in granting the University's motion to dismiss, we note that the Policies and Procedures Manual cited by the University expressly states that the process is only available to “permanent university support staff (USS).” See Kansas State University Policies and Procedures Manual, Ch. 4030.010, University Support Staff Peer Review Committee Hearing Process–Purpose (2013) (available at http://www.k-state.edu/policies/ppm/4000/4030.010.html). There is no dispute that Platt was still a probationary employee at the time she was dismissed from employment; thus, by its very terms, the University Support Staff Peer Review Committee hearing process was not an administrative remedy available to Platt at that time.
Citing its authority under K.S.A. 75–2946 to appoint a classified employee subject to a period of probation, the University also argues for the first time on appeal that employment matters are administrative in character and therefore are matters within the scope of the agency's expertise. The statute cited by the University is part of the administrative procedure set forth in the Kansas Civil Service Act (KCSA), K.S.A. 75–2925 et seq. Accordingly, we presume the University is arguing that, as an employee performing clerical duties in connection with the business operation of an educational institution in Kansas under the Kansas Board of Regents, Platt should have exhausted administrative remedies within the KCSA before filing suit. See K.S.A.2013 Supp. 75–2935(1)(f). We disagree.
The state workforce in Kansas is composed of classified and unclassified employees. Classified employees are selected through a competitive process, while unclassified positions can be filled through direct appointment, with or without competition. While unclassified employees are essentially “at will” employees who serve at the discretion of their appointing authority, classified employees are covered by a merit system set forth in the KCSA. An appointing authority may dismiss a permanent employee in a classified position only if it considers that the good of the service will be served thereby and may never dismiss, demote, or suspend a permanent employee in a classified position for political, religious, racial, or other nonmerit reasons. K.S.A.2013 Supp. 75–2949(a). If a permanent employee is dismissed by the appointing authority, the employee may request a hearing from the Kansas Civil Service Board (Board) to determine whether the appointing authority acted reasonably in taking such action. Hearings are conducted before the Board, which is deemed the agency head, in accordance with the provisions of the Kansas Administrative Procedure Act. K.S.A.2013 Supp. 75–2949(f); K.S.A.2013 Supp. 75–2929d(b). After a hearing and consideration of the evidence, the Board may affirm, modify, or reverse an agency action and order any other action it deems appropriate. K.S.A. 75–2929d(b). In turn, the KCSA specifically provides that the KJRA applies to any appeal or request for judicial review of a decision or order issued by the Board. K.S .A. 75–2929h; see also K.S.A.2013 Supp. 77–603(a); K.S.A. 77–606.
Given the statutory authority set forth above and its assertion that Platt failed to comply with the “applicable, administrative procedural prerequisite” as required by the KJRA, the University appears to be relying on the following analysis to respond to Platt's claim of error on appeal:
• The KJRA is the exclusive means through which agency action is judicially reviewed. K.S.A.2013 Supp. 77–603(a); K.S.A. 77–606.
• The University is a state agency; thus, the KJRA is the exclusive means through which the University's actions are judicially reviewed. K.S.A. 76–711(a); K.S.A. 76–712; K.S.A. 77–602(k); K.S.A.2013 Supp. 77–603(a); K.S.A. 77–606.
• Under the KJRA, a petitioner is not entitled to judicial relief until the prescribed administrative remedy has been exhausted. K.S.A.2013 Supp. 77–612.
• Platt performed clerical duties in connection with the business operation of an educational institution in Kansas under the Kansas Board of Regents; thus, Platt was a classified employee subject to the administrative procedure set forth in the KCSA. K.S.A.2013 Supp. 75–2935(1)(f).
• Under the administrative procedure set forth in the KCSA, a classified employee who is dismissed from employment may request a hearing from the Board within 30 days of dismissal to determine whether the appointing authority acted reasonably in taking such action. K.S.A.2013 Supp. 75–2949(f).
• Platt did not request a hearing before the Board within 30 days of her dismissal to determine whether the appointing authority acted reasonably. See K.S.A.2013 Supp. 75–2949(f).
• Because Platt failed to exhaust administrative remedies available to her under the administrative procedure set forth in the KCSA as required under the KJRA, the district court properly dismissed the matter for lack of subject matter jurisdiction. See K .S.A.2013 Supp. 77–612.
Although perhaps this analysis would apply under a different set of facts, it is inapplicable here because, based on the facts as alleged in the petition, there was no administrative remedy available for Platt to exhaust. See K.S.A.2013 Supp. 77–612(d) (exception to the exhaustion rule where no administrative remedy is available).
Even though she was a classified employee, Platt was still a probationary employee at the time she was dismissed from employment. Pursuant to K.S.A. 75–2946, all appointments within the classified civil service are subject to a probationary period. This period of probation is considered a test of the employee's ability to perform adequately in the job. K.A.R.2014 Supp. l–7–3(a). Significantly, a classified employee can be dismissed, suspended, or demoted at any time during the probationary period. K.S.A. 75–2946; K.A.R.2014 Supp. 1–7–3(d).
Before the end of the probationary period, the appointing authority is required to complete a performance review and notify the director of personnel services in writing whether or not the probationer is a satisfactory employee. If the overall performance rating of the probationary employee is unsatisfactory, the employee will not be awarded permanent status. K.S.A. 75–2946; K.A.R.2014 Supp. 1–7–3(b). Thereafter, the appointing authority is required to notify the employee and the director in writing that (1) the employee is being dismissed or demoted; (2) the probationary period is being extended; or (3) the employee is being given permanent status. K.A.R.2014 Supp. 1–7–6. If dismissal or suspension of a classified probationary employee is unrelated to the performance review conducted under K.A.R.2014 Supp. l–7–3(b) and K.A.R.2014 Supp. 1–7–6, there appears to be no requirement in either the KCSA or the regulations to provide written notice thereof to the classified employee or the director. See K.S.A. 75–2946; K.A.R.2014 Supp. l–7–3(d).
Moreover, and critical to the issue presented on appeal here, a classified employee who is dismissed during the probationary period is not entitled to administrative review of the dismissal under either the KCSA or the corresponding regulations. Once a classified probationary employee is granted permanent status, however, that changes. See K.S.A. 75–2949(f) (“Any permanent employee finally dismissed, demoted or suspended, may request a hearing from the state civil service board to determine the reasonableness of such action.” [Emphasis added.] ). Therefore, if Platt had been a classified permanent employee at the time she was terminated instead of a probationary employee, the University's assertion that she failed to comply with the “applicable, administrative procedural prerequisite” before filing suit would be well taken. See K.S.A.2013 Supp. 77–612.
Viewing the well-pleaded facts in a light most favorable to Platt and assuming as true those facts and any inferences reasonably drawn from them, it appears the right to request an administrative review of the decision to dismiss Platt had not yet vested under the provisions of the KCSA and the corresponding regulations; thus, she had no administrative remedy with which to comply. See K.S.A.2013 Supp. 77–612(d) (providing exception to the exhaustion rule where no administrative remedy is available); Beshears, 18 Kan.App.2d at 821 (recognizing exception). Thus, even if her claim had been subject to the procedural process set forth in the KJRA, Platt had no administrative remedy available to exhaust under the administrative procedure set forth in the KCSA. As such, the district court erred in dismissing her case for that reason. See K.S.A.2013 Supp. 77–612(d).
For the reasons stated above, we reverse the district court's decision to dismiss, and we remand with directions that the action be reinstated as a tort claim that falls outside the purview of the KJRA. Because we are reversing and remanding this case to the district court for further proceedings, we need not address Platt's arguments that the district court erred by making inferences in the University's favor in ruling on the motion to dismiss and in declining to consider the evidence Platt submitted with her motion to reconsider.
Reversed and remanded with directions.