Bausman v. Interstate Brands Corp.

• Decision Date: 11 June 2001
• Docket Number: No. 99-3229,99-3229
• Citation: 252 F.3d 1111
• Parties: (10th Cir. 2001) CYNTHIA M. BAUSMAN, Plaintiff-Appellant, v. INTERSTATE BRANDS CORPORATION, Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1111

252 F.3d 1111 (10th Cir. 2001)

CYNTHIA M. BAUSMAN, Plaintiff-Appellant, v. INTERSTATE BRANDS CORPORATION, Defendant-Appellee.

No. 99-3229

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

June 11, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 96-CV-4119-SAC)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] David O. Alegria, McCullough, Wareheim & Labunker, P.A., Topeka, Kansas, for the Plaintiff-Appellant.

Leonard Singer (James R. Holland, II, with him on the brief) of Bioff Singer and Finucane, LLP, Kansas City, Missouri, for the Defendant-Appellee.

Before SEYMOUR, and PORFILIO, Circuit Judges, and JENKINS, Senior District Judge.¹

JENKINS, Senior District Judge.

Plaintiff-Appellant Cynthia M. Bausman began her employment with Defendant-Appellee Interstate Brands Corporation ("IBC") on June 28, 1986. She worked at IBC until her discharge from employment on July 5, 1994. Ms. Bausman brought an action for wrongful discharge against IBC, alleging that IBC terminated her employment in retaliation for her filing of a workers' compensation claim, and that IBC did so in violation of the public policy of the State of Kansas. IBC contends that it discharged Bausman pursuant to a neutral attendance policy because of absences regarding which Bausman did not provide doctor's notes to confirm that her absence resulted from a work-related injury.

The action was brought within the district court's diversity jurisdiction, 28 U.S.C. 1332, and Kansas law governs. The district court granted summary judgment in favor of IBC, and following the district court's denial of her motion to alter or amend its judgment, Ms Bausman appealed.

I

This court has jurisdiction of this appeal pursuant to 28 U.S.C. 1291. On appeal, the district court's grant of summary judgment is reviewed de novo, considering the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). Summary judgment is proper if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When, as in this case, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying "a lack of evidence for the nonmovant on an essential element of the nonmovant's claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998). To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case. Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994).

II

Under Kansas law, an employer cannot fire an employee in retaliation for that employee filing a workers' compensation claim; the filing of such a claim represents the protected exercise of a statutory right. Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981). The Kansas courts have reasoned that "[a]llowing an employer to discharge an employee for being absent . . . as the result of a work-related injury would allow an employer to indirectly fire an employee for filing a workers' compensation claim, a practice contrary to the public policy of this state . . . ." Coleman v. Safeway Stores, Inc., 242 Kan. 804, 816, 752 P.2d 645, 652 (1988). Consequently, "any absences caused by her work-related injury should not be counted against" Ms. Bausman by her employer. Id.

Coleman has been read to extend the protection of public policy to injured employees who have not yet filed a workers' compensation claim, preventing employers from preemptively discharging injured employees who would be likely to file statutory claims in the near future. Ortega v. IBP, Inc., 255 Kan. 513, 516, 874 P.2d 1188, 1191 (1994).

Burden of Proof

The rule, however, is not a matter of strict liability: "the plaintiff may not recover for retaliatory discharge unless she proves that at the time of her discharge the defendant knew or should have known the absences for which the plaintiff was being fired were the result of her work-related injury," an injury for which she has filed or might file a claim for workers' compensation. Ramirez v. IBP, Inc., 913 F. Supp. 1421, 1436 (D. Kan. 1995), aff'd mem, 145 F.3d 1346 (10th Cir. 1998) (table). The burden rests upon Ms. Bausman to prove that IBC discharged her in retaliation for filing a claim under the Kansas Workers' Compensation Act. Ortega v. IBP, Inc., 255 Kan. 513, 528, 874 P.2d 1189 (1994). Under Kansas law, she must prove a claim for retaliatory discharge "by a preponderance of the evidence, but the evidence must be clear and convincing in nature." Ortega v. IBP, Inc., 255 Kan. 513, 528, 874 P.2d 1188 (1994). Evidence is clear if "it is certain, unambiguous, and plain to the understanding." Id. Evidence is convincing if "it is reasonable and persuasive enough to cause the trier of fact to believe it." Id. (citing Chandler v. Central Oil Corp., Inc., 253 Kan. 50, 58, 853 P.2d 649 (1993)).

Ms. Bausman may recover upon "proving that the discharge was 'based on,' 'because of,' 'motivated by' or 'due to' the employer's intent to retaliate," but she does "not need to show that retaliation was the employer's sole motive or reason for the termination." Sanjuan v. IBP, Inc., 160 F.3d at 1298 (quoting Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 146-148, 815 P.2d 72 (1991)).

Burden-Shifting Approach

Because an employer rarely announces retaliation as its motive for terminating an employee, "Our Supreme Court has adopted a burden-shifting approach to analyze cases involving retaliatory discharge based on discrimination. We hold that the same analysis should be applied in workers compensation retaliatory discharge cases." Rebarchek v. Farmers Cooperative Elev. & Mercantile Association of Dighton, 28 Kan. App. 2d 104, 13 P.3d 17, 23 (2000), review granted, No. 82,662 (Kan. Feb. 6, 2001). See Robinson v. Wilson Concrete Co., 913 F. Supp. 1476, 1483 (D. Kan. 1996) (burden-shifting analysis applies in workers compensation discharge cases). Proof of a prima facie case creates a rebuttable presumption of retaliatory intent.

To establish a prima facie case of retaliatory discharge under Kansas law, Ms. Bausman must produce evidence demonstrating: "(1) [that] he or she filed a claim for workers' compensation benefits, or sustained an injury for which [s]he might assert a future claim for such benefits; (2) that the employer had knowledge of plaintiff's compensation claim, or the fact that [s]he had sustained a work-related injury for which the plaintiff might file a future claim for benefits; (3) that the employer terminated the plaintiff's employment; and (4) that a causal connection existed between the protected activity or injury, and the termination." Sanjuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir. 1998) (citing Chaparro v. IBP, Inc., 873 F. Supp. 1465, 1472 (D. Kan. 1995)). See Robinson v. Wilson Concrete Company, 913 F. Supp. at 1483; Huffman v. Ace Elec. Co., Inc., 883 F. Supp. 1469, 1475 (D. Kan.1995); Rosas v. IBP, Inc., 869 F. Supp. 912, 916 (D. Kan.1994). The requisite "causal connection" is the unlawful intent on the part of the employer to terminate the employee because the employee has filed a statutory claim, or has been injured and may file such a claim.

In this case, the critical factual question as to this element is whether IBC knew--or should have known--that Ms. Bausman was absent on each of the occasions for which she was being fired as a result of her work-related injury.

If a plaintiff has made her prima facie case, "the burden shifts to the defendant employer to show an articulate, non-retaliatory reason for the discharge. Rosas v. IBP, Inc., 869 F. Supp. 912, 916 (D. Kan. 1994)." Sanjuan, 160 F.3d at 1298. If the employer meets this burden, "the burden shifts back to the plaintiff but the plaintiff must show clear and convincing evidence that he or she was terminated in retaliation for exercising rights under the Workers' Compensation Act. Ortega, 874 P.2d at 1197-98." Id.

III

The district court summarized the uncontroverted material facts, including the following:

From June 28, 1986 through July 5, 1994, Cynthia Bausman worked for IBC at its bakery in Emporia, Kansas, where it produces snack cakes and related products.

IBC has a written attendance policy that applies to all employees and disciplines employees for absences without notification, tardiness, leaving early from work, and for excessive absences. An employee will receive a "charged absence" for not coming to work when scheduled, for leaving work early, and for being late to work by more than five minutes. Based on the number of absences during a six-month period, the policy imposes progressive discipline: (1) an oral warning after four absences; (2) a written warning after five absences; (3) a "decision day" off with pay after six absences; and (4) discharge after seven absences. IBC's policy also establishes an "habitual absentee" status for employees who accrue eight absences during a twelve-month period: upon notification of being an "habitual absentee," an employee may be discharged if he or she is absent once more during the following six-month period.

The written IBC policy contains the following exception concerning absences for extended illness:

Employees who phone in pending absences daily (more than (1) day) shall have each day of absence count as a single occurrence, unless the employee furnishes a physician's certificate documenting diagnosis, treatment, and the necessity for multiple days of absence. The Company may elect to count the multiple days of absence as a single occurrence.

(Dk. 39, Tab 9).

Though not appearing in its written attendance policy effective January 1, 1991, IBC apparently has followed a practice that did not charge employees...