Gonzalez-Centeno v. NORTH CENTRAL KANSAS REGIONAL JUVENILE …

• Decision Date: 03 December 2004
• Docket Number: No. 89,560.,89,560.
• Citation: 101 P.3d 1170,278 Kan. 427
• Parties: WILLIAM GONZALEZ-CENTENO, Appellant/Cross-appellee, v. NORTH CENTRAL KANSAS REGIONAL JUVENILE DETENTION FACILITY, Appellee/Cross-appellant.
• Court: Kansas Supreme Court

278 Kan. 427

101 P.3d 1170

WILLIAM GONZALEZ-CENTENO, Appellant/Cross-appellee, v. NORTH CENTRAL KANSAS REGIONAL JUVENILE DETENTION FACILITY, Appellee/Cross-appellant.

No. 89,560.

Supreme Court of Kansas.

Opinion filed December 3, 2004.

David O. Alegria, of McCullough, Wareheim & LaBunker, P.A., of Topeka, argued the cause and was on the briefs for appellant/cross-appellee.

C. Richard Comfort, of Ryan & Condray, LLC, of Concordia, argued the cause and was on the brief for appellee/cross-appellant.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

This workers compensation discharge case presents a matter of first impression for the court. A cause of action for retaliatory discharge for exercising rights under the Kansas Workers Compensation Act is well established where the defendant is an employer against which a workers compensation claim has or may be made. William Gonzalez-Centeno, who worked two jobs, filed a workers compensation claim against one employer and sued the other for retaliatory discharge.

There are two issues before this court. The first is whether Gonzalez has a cause of action for retaliatory discharge against the North Central Kansas Regional Juvenile Detention Facility (NCKRJDF), which was not the employer against which his workers compensation claim was asserted. The district court ruled that an injured employee's protection from retaliation is not limited to the employer against which the workers compensation claim was filed. NCKRJDF raises this issue on cross-appeal. The other issue is whether the district court erroneously entered summary judgment in favor of NCKRJDF for lack of evidence supporting Gonzalez' contention that he was fired by NCKRJDF as a result of a work-related injury or making a workers compensation claim against his other employer. Gonzalez raises this issue on appeal.

Gonzalez does not take issue with the findings of fact made by the district court. The following facts are based on the district court's findings.

Gonzalez began employment with two unrelated employers, Venator and NCKRJDF, in August 1996. At the time Gonzalez began working at NCKRJDF, he was given an employee manual that reserved NCKRJDF's right to preclude employees from working at any other employment. NCKRJDF hired Gonzalez under an oral employment-at-will agreement.

In November 1996, while working for both Venator and NCKRJDF, Gonzalez sustained an accidental injury to his back while working at Venator. He filed for and received workers compensation benefits from Venator from November 29, 1996, through March 16, 1998. In June 1997, during the period when he was receiving workers compensation benefits, Gonzalez was fired by Venator for absences necessitated by his work-related injuries. Venator reinstated him in March 1998, after he made a claim against it for retaliatory discharge.

In December 1997, Gonzalez had surgery for his back injury. In January 1998, he was released to return to work.

On June 24, 1998, Gonzalez aggravated his back injury before reporting for work at NCKRJDF. After working at NCKRJDF for 3 hours that day, Gonzalez had to go home due to the pain. The Director and Assistant Director of NCKRJDF were present when Gonzalez explained why he needed to leave his shift early.

On June 29, 1998, Gonzalez was in pain on account of his back injury. Before 8:00 a.m., he telephoned NCKRJDF and told the administrative secretary that he was unable to work. Gonzalez had been told earlier that he was to talk only to the Director or Assistant Director if he was unable to come in to work. On July 2, 1998, NCKRJDF's Director gave Gonzalez a verbal warning because he had not spoken to the Director or Assistant Director when he telephoned to say that he was unable to work on June 29.

On July 27, 1998, Gonzalez called NCKRJDF at 7 a.m. to say that he was unable to work on account of back pain. He did not speak to the Director or Assistant Director. Gonzalez did not believe that NCKRJDF's Director had the right to require employees to contact him or the Assistant Director directly, and Gonzalez considered the directive to be harassment.

On July 29, 1998, Gonzalez was terminated from NCKRJDF for insubordination because he had not spoken to the Director or Assistant Director when he called in sick. Law of the case. In a motion for judgment on the pleadings, NCKRJDF raised the question whether Gonzalez has a cause of action for retaliatory discharge against it because it was not the employer against which Gonzalez' workers compensation claim was filed. The trial court overruled the motion. After discovery, NCKRJDF filed a motion for summary judgment. Among other things, NCKRJDF again raised the question whether Gonzalez had a cause of action against it, and the district court reaffirmed its earlier reasoning and conclusion. On appeal, Gonzalez complains that the district court should not have entertained NCKRJDF's second motion for summary judgment because the district court's ruling on the first motion was the law of the case. The district court reaffirmed its earlier ruling, thus eliminating any complaint that the law of the case was disturbed.

Cause of action. Whether to adopt or recognize a cause of action is a question of law over which we have unlimited review. Wilkinson v. Shoney's, Inc., 269 Kan. 194, 203, 4 P.3d 1149 (2000).

Kansas courts adopted a public policy exception to the employment-at-will doctrine in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), that afforded protection from discharge for an employee who had filed a workers compensation claim. Since Murphy was decided, the workers compensation public policy exception has been extended to include the possibility that a workers compensation claim will be filed, Pilcher v. Board of Wyandotte County Comm'rs, 14 Kan. App. 2d 206, 787 P.2d 1204 (1990); retaliation against the noninjured spouse of an employee who exercised his or her workers compensation rights, Marinhagen v. Boster, Inc., 17 Kan. App. 2d 532, 840 P.2d 534 (1992); and retaliatory demotion, Brigham v. Dillon Companies, Inc., 262 Kan. 12, 935 P.2d 1054 (1997). The question before this court is whether the exception should be extended to include a cause of action for retaliatory discharge against an employer other than the employer against which a workers compensation claim was or might be asserted.

In this case of first impression, we turn to decisions from other states' courts. Whether a discharge is actionable if the alleged retaliation was on account of a workers compensation claim filed against a previous employer is an issue that has been answered in the affirmative by the majority of courts that have considered it.

In Darnell v. Impact Industries, Inc., 105 Ill. 2d 158, 473 N.E.2d 935 (1984), the Illinois Supreme Court considered a retaliatory discharge action brought by an employee who was discharged by Impact Industries when it learned that she had filed a workers compensation claim against her previous employer. In recognizing her cause of action, the court majority agreed with the argument "that the evil resulting from the discharge of an employee for having filed a workers' compensation claim against a prior employer is as great as if the discharge had been effected by the prior employer." 105 Ill. 2d at 161. The court continued:

"We perceive no distinction between the situation where an employee is discharged for filing a workers' compensation claim against the defendant employer and one where the employer discharges the employee upon discovering that the employee had filed a claim against another employer. In either situation a retaliatory discharge is equally offensive to the public policy of this State as stated in the Workers' Compensation Act. [Citation omitted.] To hold that the tort of retaliatory discharge requires that the workers' compensation claim be made against the discharging employer would seriously undermine the comprehensive statutory scheme which provides `for efficient and expeditious remedies for injured employees.' [Citations omitted.]" 105 Ill. 2d at 161-62.

Three justices dissented, expressing the view that continued expansion of the retaliatory discharge cause of action was imprudent. 105 Ill. 2d at 163-66.

In Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66 (Ky. 1995), a majority of the Kentucky Supreme Court refused to recognize a wrongful termination action by an employee who was discharged because he had filed workers compensation claims while employed by another employer. The decision was based on a provision of the Kentucky Workers' Compensation Act, which prohibits harassment, discrimination, or discharge of an employee for pursuing a lawful workers compensation claim and creates a civil cause of action for injuries caused by violations of the section. 898 S.W.2d at 67-68. The Kentucky court majority reasoned that the motive for the employer against whom a workers compensation claim was filed to discharge would be retaliatory but the motive for another employer would be economic, that is, concern that its insurance rates might be affected by the employee's history. The court concluded that the public policy expressed in the statutory provision does not embrace economic discharge. 898 S.W.2d at 68-69. Three justices dissented, expressing the view that the statutory language did not restrict a cause of action to the employer against which a claim has been filed. They also noted that another provision of the same act encourages the hiring and retention of previously injured workers and prohibits their discharge because of prior injuries. 898 S.W.2d at 70.

In Goins v. Ford Motor Co., 131 Mich. App. 185, 347 N.W.2d 184 (1984), the Michigan Court of Appeals held that Goins stated a cognizable claim against Ford, his current employer, for retaliatory discharge because he filed a workers compensation claim against his former employer, General Motors. Subsequent opinions by the Michigan...