Bracken v. Dixon Industries, Inc., 86,479.

• Citation: 272 Kan. 1272,38 P.3d 679
• Decision Date: 25 January 2002
• Docket Number: No. 86,479.,86,479.
• Parties: RUTH A. BRACKEN, Appellant, v. DIXON INDUSTRIES, INC., Appellee.
• Court: United States State Supreme Court of Kansas

272 Kan. 1272

38 P.3d 679

RUTH A. BRACKEN, Appellant, v. DIXON INDUSTRIES, INC., Appellee.

No. 86,479.

Supreme Court of Kansas.

Opinion filed January 25, 2002.

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

J. Patrick Cremon, of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., of Tulsa, Oklahoma, argued the cause, and Monica L. Goodman, of the same firm, and Douglas G. Ott, OBA, of Hall, Levy, DeVore, Bell, Ott & Kritz, P.A., of Coffeyville, were with him on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Employee appeals the district court's grant of summary judgment in favor of the employer in the employee's retaliatory discharge action.

Dixon Industries, Inc. (Dixon) instituted a drug testing policy in 1988 for the stated purpose of providing employees a safe and productive work place and providing customers with products of the highest quality. Under Dixon's drug testing policy, all prospective new hires were required to submit to preemployment alcohol and drug testing. Dixon also required employees to consent to alcohol and drug testing in certain circumstances, such as when there was an on-the-job accident involving the employee or when any employee was sent to the company doctor or hospital. Written consent was required prior to testing. Under the policy, any employee who tested positive or admitted to being under the influence of alcohol or drugs was terminated. Ruth Bracken, an employee of Dixon for 18 years, complained to her supervisor in December 1994 that she was having pain in her hands and arms. Bracken did not request medical treatment. On April 12, 1995, Bracken asked her supervisor for time off to go to her doctor regarding the pain in her arms and hands. Her supervisor recommended that Bracken see a company doctor. Bracken made an appointment with and saw a company doctor for her complaint.

Previously, in May 1990, Bracken had visited the company doctor as a result of a work-related injury. Bracken was aware of the employer's no drug policy and consented to alcohol and drug testing. The result at that time was negative.

When Bracken arrived at the doctor's office on April 12, 1995, the doctor took a urine sample for purposes of drug testing. The preliminary immunoassay analysis came back positive for cannabis. When Dixon received the positive drug test result, it requested a confirmatory test. The second test, a chromatography/mass spectrometry test also came back positive for cannabis.

Bracken admitted to her employer that she had smoked marijuana the night before she went to the company doctor. Pursuant to company rules, on April 21, 1995, Bracken was discharged because she had tested positive for marijuana.

Bracken claimed she was a good employee; therefore, the positive drug test was not the real reason she was discharged.

Bracken filed a retaliatory discharge claim against Dixon. Bracken claimed she was a good worker and had been discharged because her employer anticipated she was going to file a workers compensation claim. The employer asserted Bracken was terminated because she had violated its no drug policy. The district court noted that the material facts were not in dispute, found that Bracken had been discharged because she had violated the employer's no drug policy and, following the rationale in Lay v. Horizon/CMS Healthcare Corp., 60 F. Supp.2d 1234 (D. Kan. 1999), granted Dixon's motion for summary judgment.

Summary Judgment

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. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).

Bracken claims that Dixon fired her because of her on-the-job injury and in anticipation of her filing a workers compensation claim. To prevail on a retaliatory discharge claim the employee must be within the exception to the common-law doctrine of employment at will. Under the employment-at-will doctrine, an employer can terminate an 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). One exception to the employment-at-will doctrine is recognized when an employee is discharged in retaliation for filing a workers compensation claim, Murphy v. City of Topeka, 6 Kan. App.2d 488, 630 P.2d 186 (1981), or in anticipation of the employee filing a workers compensation claim, Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988).

To establish a typical prima facie case of retaliatory discharge, the plaintiff must show (1) he or she filed a claim for workers compensation benefits or sustained a work-related injury for which he or she could assert a future claim for such benefits; (2) the employer had knowledge of the plaintiffs compensation claim or the fact that he or she had sustained a work-related injury for which he or she could file a future claim for benefits; (3) the employer terminated his or her employment; and (4) a causal connection existed between the protected activity or injury and the termination. Huffman v. Ace Elec. Co., Inc., 883 F. Supp. 1469, 1475 (D. Kan. 1995); Chaparro v. IBP, Inc., 873 F. Supp. 1465, 1472 (D. Kan. 1995); Rosas v. IBP, Inc., 869 F. Supp. 912, 916 (D. Kan. 1994). Proof of a prima facie case raises "`a rebuttable presumption'" of a retaliatory intent. See Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir. 1994) (quoting Branson v. Price River Coal Co., 853 F.2d 768, 771 [10th Cir. 1988]); Rosas, 869 F. Supp. at 916.

There is no dispute that the first three elements of a prima facie case are present here. Bracken contends the fourth element, a causal connection between the protected activity or injury and her termination, involves material disputed facts. According to Bracken, Dixon's motive for firing her is a question to be decided by a trier of fact.

Kansas has adopted the burden-shifting approach applied in discrimination cases for use in analyzing state-law retaliatory discharge claims. Ortega v. IBP, Inc., 255 Kan. 513, 526, 874 P.2d 1188 (1994). Once the plaintiff employee establishes a prima facie case, it becomes the employer's burden to produce a legitimate, nondiscriminatory reason for the discharge. Huffman, 883 F. Supp. at 1475.

To avoid summary judgment after the employer provides its reason for the discharge, the employee must assert specific facts establishing a triable issue as to whether the employer's reason for discharge is a mere cover-up or pretext for retaliatory discharge. Rea v. Martin Marietta Corp., 29 F.3d 1450, 1455 (10th Cir. 1994). "If no facts relating to the pretextuality of the defendant's action remain in dispute, summary judgment is appropriate." Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 798 (10th Cir. 1993), overruled in part on other grounds Buchanan v. Sherrill, 51 F.3d 227, 229 (10th Cir. 1995). On the other hand, should the plaintiff come forth with a prima facie case and evidence that the defendant's reasons are...