Ortega v. IBP, Inc.

• Decision Date: 27 May 1994
• Docket Number: No. 70408,70408
• Parties: , 128 Lab.Cas. P 57,726, 10 IER Cases 855 Arnoldo ORTEGA and Emma Tovar, Plaintiffs, v. IBP, INC., Defendant.
• Court: Kansas Supreme Court

Page 1188

874 P.2d 1188

255 Kan. 513, 128 Lab.Cas. P 57,726,

10 IER Cases 855

Arnoldo ORTEGA and Emma Tovar, Plaintiffs, v. IBP, INC., Defendant.

No. 70408.

Supreme Court of Kansas.

May 27, 1994.

Syllabus by the Court

1. If either party to a certified question from a federal court wants to add facts to those the certifying federal court furnishes this court, any changes must be made in the federal court. The same rule applies to evidentiary rulings made by the federal court.

2. In Kansas, claimants are required to prove a claim for retaliatory discharge by clear and convincing evidence. Clear and convincing evidence is not a quantum of proof but rather a quality of proof. A party having the burden of proving a retaliatory discharge from employment for having filed a workers compensation claim must establish that claim by a preponderance of the evidence, but the evidence must be clear and convincing in nature. It is clear if it is certain, unambiguous, and plain to the understanding. It is convincing if it is reasonable and persuasive enough to cause the trier of facts to believe it.

David O. Alegria, McCullough, Wareheim & LaBunker, Topeka, and David W. Hauber, Boddington & Brown, Chtd., Kansas City, argued the cause and were on the brief, for plaintiffs.

John J. Jurcyk, Jr., McAnany, Van Cleave & Phillips, P.A., Kansas City, argued the cause, and Terri S. Bezek and Katherine E. Rich, were with him on the brief, for defendant.

Kirk W. Lowry, Palmer & Lowry, Topeka, was on the brief, for amicus curiae KS Trial Lawyers Ass'n Steve R. Fabert, Fisher, Patterson, Sayler & Smith, Topeka, was on the brief, for amicus curiae KS Ass'n of Defense Counsel.

ABBOTT, Justice.

This case is filed in the United States District Court for the District of Kansas and comes to this court by certification under the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. Judge Kathryn H. Vratil certified to this court the following question:

Where an employee-at-will claims that an employer terminated his or her employment in retaliation for the exercise of statutory rights under the Workers' Compensation Act, K.S.A. 44-501 et seq., and that he or she is therefore entitled to maintain a cause of action for wrongful discharge under Kansas law, is plaintiff required to prove that claim by clear and convincing evidence?

Highly summarized from the facts given by the certifying court, the facts are as follows:

Plaintiff Emma Tovar began working for defendant IBP, Inc., in 1975. Plaintiff Arnoldo Ortega began working for IBP in 1988. Both plaintiffs were employees-at-will. Both were injured on the job, Tovar in April 1989 and Ortega in May 1990. Tovar filed a workers compensation claim in August 1989 and Ortega filed a workers compensation claim in November 1990. Both plaintiffs were in the care of a physician and both complained of continued pain.

IBP placed Tovar on light duty and in a position within her physical capabilities after she suffered a back injury, but she eventually obtained temporary total disability benefits and was off work completely. She returned to work but then received a series of medical excuses for four- to six-week periods and was again off work completely. In April 1991, Tovar's physician gave her a six-month off-work slip. IBP questioned why Tovar had been and would be off work for so long, and eventually Tovar's physician released her on May 31, 1991, for part-time work. IBP informed Tovar's attorney that she was to report to work on June 17, 1991, but this date was later changed to July 1, 1991. Tovar was aware that she was to begin work on that date, but she failed to report to work on that date. There is some dispute as to whether she ever reported for work after July 1, 1991. IBP ultimately gave Tovar another deadline by which to return to work, August 16, 1991, which was in turn extended to August 19, 1991. When Tovar failed to report on that date, IBP terminated her employment. IBP contends the termination was due to "job abandonment."

After an injury to his shoulder, Ortega was placed in a restricted-duty job where he would only use one arm. He later underwent surgery on his shoulder. On November 8, 1990, Ortega's one-arm restriction was lifted and he was permitted to use his injured arm as long as he did not raise it over shoulder level or lift more than five pounds. Because IBP had no such restricted-duty position available, it placed Ortega on a medical leave of absence, during which time he received temporary total disability benefits. On January 7, 1991, Ortega's physician determined that he could lift up to 10 pounds with his injured arm. Ortega returned to work on January 14, 1991. On May 13, 1991, Ortega was assigned to the dew claw machine in keeping with his medical restrictions. He worked the machine that day with no complaints. On May 14, 1991, he was given an unscheduled break because the machine broke down. After resuming work, he requested a break because his hands were hurting. His supervisor declined the request. Ortega ceased working his position and refused to resume work when requested. Ortega was taken to a supervisor's office, where a verbal altercation ensued. Ortega was suspended at that time. On May 15, 1991, the IBP personnel director interviewed Ortega and reviewed his file. On May 16, 1991, IBP terminated Ortega. IBP contends Ortega was terminated for misconduct and insubordination.

The plaintiffs have included a substantial statement of facts in their brief, providing facts not indicated in the certifying court's statement of facts. The plaintiffs also challenge the propriety of an evidentiary ruling made by the certifying court. The defendant filed a motion to strike the facts portion of the plaintiffs' brief. The motion was denied subject to further consideration at oral argument and final submission. Because the question before this court involves a question of law not related to the facts of one particular case, the plaintiffs' statement of facts is not relevant to the appeal. The propriety of the certifying court's findings of fact and evidentiary rulings is not before this court. If either party wishes to add facts to those the certifying federal court furnishes this court, any changes must be made in the federal court. The same rule applies to evidentiary rulings made by the federal court.

This court permitted amicus curiae briefs to be filed by the Kansas Trial Lawyers Association and the Kansas Association of Defense Counsel.

Kansas has long adhered to the doctrine of employment-at-will. The employment is terminable at the will of either the employer or the employee. Pilcher v. Board of Wyandotte County Comm'rs, 14 Kan.App.2d 206, Syl. p 1, 787 P.2d 1204, rev. denied 246 Kan. 768 (1990). "[A]n employer may discharge his 'at-will employee' for good cause, for no cause, or even for a wrong cause, without incurring liability to the employee for wrongful discharge." Morriss v. Coleman Co., 241 Kan. 501, 508, 738 P.2d 841 (1987). However, the doctrine of employment-at-will has been gradually eroded in Kansas and in other states.

In Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981), the Court of Appeals recognized the tort of retaliatory discharge. "[T]he discharge of an employee in retaliation for filing a workmen's compensation claim is actionable at law and may support an award of both actual and punitive damages." 6 Kan.App.2d 488, Syl. p 7, 630 P.2d 186.

"The Workmen's Compensation Act provides efficient remedies and protection for employees, and is designed to promote the welfare of the people in this state. It is the exclusive remedy afforded the injured employee, regardless of the nature of the employer's negligence. To allow an employer to coerce employees in the free exercise of their rights under the act would substantially subvert the purpose of the act." 6 Kan.App.2d at 495-96, 630 P.2d 186.

Since Murphy, the tort of retaliatory discharge has been expanded beyond discharge in retaliation for filing a workers compensation claim. In Coleman v. Safeway Stores, Inc., 242 Kan. 804, Syl. p 3, 752 P.2d 645 (1988), this court held that "[a]llowing an employer to discharge an employee for being absent or failing to call in an anticipated absence as the result of a work-related injury allows an employer to indirectly fire an employee for filing a workers' compensation claim, a practice contrary to the public policy of this state." Thus, even where the employee had not yet filed a workers compensation claim, an employer is prohibited from firing an employee who is absent from work due to a work-related injury and who might file a workers compensation claim. This court also held that an action for retaliatory discharge existed notwithstanding that a collective bargaining agreement protected the worker from such discharge, overruling prior decisions to the contrary. 242 Kan. 804, Syl. p 4, 752 P.2d 645. Thus, the tort of retaliatory discharge applies to both at-will employees and to employees covered by a collective bargaining agreement.

The same day the decision in Coleman was filed, this court recognized the tort of retaliatory discharge for "whistle-blowing." Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988). Noting that at-will employees are statutorily protected from discharge in certain situations, such as where the employee reports child abuse, reports abuse of certain adults in need of care, testifies before the Secretary of Human Resources, or reports unsafe or unlawful working conditions to the Secretary of Human Resources, this court held that at-will employees are also protected from discharge in retaliation for reporting Medicaid fraud. This court recognized the public policy of encouraging citizens to report crimes and held that public policy also "requires that citizens in a democracy be protected from reprisals for performing their civil duty of reporting infractions of rules, regulations, or the...