Byle v. Anacomp, Inc., 93-2268-JWL.

• Court: U.S. District Court — District of Kansas
• Writing for the Court: LUNGSTRUM
• Citation: Byle v. Anacomp, Inc., 854 F.Supp. 738 (D. Kan. 1994)
• Decision Date: 06 May 1994
• Docket Number: No. 93-2268-JWL.,93-2268-JWL.
• Parties: Shirley M. BYLE, Plaintiff, v. ANACOMP, INC., Defendant.

854 F. Supp. 738

Shirley M. BYLE, Plaintiff, v. ANACOMP, INC., Defendant.

No. 93-2268-JWL.

United States District Court, D. Kansas.

May 6, 1994.

COPYRIGHT MATERIAL OMITTED

Richard E. Armitage, Armitage & Farnum, P.C., Kansas City, MO, Janet Davis Baker, Overland Park, KS, for plaintiff.

Sandra L. Schermerhorn, Spencer, Fane, Britt & Browne, Kansas City, MO, Nancy M. Landis, Brian F. Stayton, Spencer, Fane, Britt & Browne, Overland Park, KS, for defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

I. INTRODUCTION

This matter is currently before the court on the motion of defendant, Anacomp, Inc. ("Anacomp"), for summary judgment (Doc. # 33) against plaintiff Shirley M. Byle. This is an employment action in which plaintiff alleges she was discharged from her employment in retaliation for "whistleblowing." She alleges she was terminated because she reported an improper billing to a customer and a submission by a supervisor of personal bills for corporate payment. Plaintiff further claims she was subjected to severe and outrageous treatment by her supervisors which constituted an intentional infliction of emotional distress. For the reasons set forth below, defendant's motion for summary judgment (Doc. # 33) is granted in part and denied in part.

II. FACTUAL BACKGROUND

The following facts are either uncontroverted or viewed in the light most favorable to the plaintiff. Plaintiff was employed from 1981 to 1991 as an administrative assistant and later as an office administrator, by defendant Anacomp, Inc. In September of 1989, Mike Calloway, then plaintiff's supervisor, asked plaintiff to prepare a billing invoice to send to a customer, Truman Medical Center ("TMC"), for equipment that had not actually been sold. Plaintiff has produced evidence indicating that TMC did not authorize or request the equipment and never advised anyone at Anacomp that it would be purchased. The equipment, an expensive computer system, cost $15,869.00.

Plaintiff believed it was unlikely that TMC would buy the equipment because the company was having financial trouble and allegedly told Mr. Calloway she "didn't want any part" in the billing. She was told by Mr. Calloway that the equipment would be sold later, and when plaintiff protested further, Mr. Calloway responded that she should "do it or else." Plaintiff then spoke to Earl Humes, the regional administrator, and Adam Santavicca, the regional vice president, about the billing. Both men approved it.

Plaintiff refused to prepare the billing personally: this was done by the responsible sales representative, Breck Churchill. When plaintiff sent the billing to Anacomp's corporate offices, she placed error flags in the invoice, knowing that doing so would cause the billing to be held up at the corporate offices.

Plaintiff claims the reason for the billing was so that the district office could meet its sales quotas for the fiscal year. Plaintiff claims that as a direct result of the sale, Breck Churchill, a salesperson, not only met his quota, but was paid a commission and qualified to go on an incentive trip known as the "quota club." According to plaintiff, Mr. Calloway, Mr. Santavicca and Mr. Humes also benefitted from the billing in that they would receive financial rewards from the company for meeting their quotas. The billing was later taken off the system and TMC did not pay for the equipment at any time.

Plaintiff contends that after the Anacomp corporate offices were informed of the improper billing Mr. Calloway questioned her loyalty and both he and Mr. Santavicca treated her differently. Mr. Calloway testified that Mr. Santavicca suggested that plaintiff be fired.

In 1990, Mr. Calloway was replaced as plaintiff's supervisor by Gale Hart. In October of 1990, plaintiff confronted Ms. Hart with evidence that she had attempted to be compensated for personal items by declaring personal expenses on Anacomp's general ledger as corporate expenses. Plaintiff reported the activity to the regional office and to Mr. Humes, who suggested she contact Mr. Santavicca. She did as instructed, and, soon thereafter, Mr. Santavicca informed plaintiff that Ms. Hart had been released. Plaintiff claims that, before she was released, Ms. Hart became abusive towards her and had wanted to fire her, but was informed by Mr. Santavicca that she should not do so.

In January of 1991, Johnette Boyle was hired from outside the company to replace Hart as plaintiff's supervisor. Plaintiff contends that Ms. Boyle advised persons in the office that both she and Mr. Santavicca believed that plaintiff made too much money and fostered a bad attitude among the office employees. In March, plaintiff received a note from Ms. Boyle regarding plaintiff's failure to notify her prior to being absent from work. In May, plaintiff received a six-month performance appraisal from Ms. Boyle, wherein she was rated "minimally acceptable" and was disciplined by being required to take a "decision-making leave day." The evaluation cited a poor attendance record and insubordination, and was based in part upon information received from Mr. Humes. Plaintiff alleges that in a meeting with Ms. Boyle shortly thereafter, Ms. Boyle assured her the appraisal was really the result of poor communication and differing management styles, that there were no serious problems and that the appraisal would not be placed in her personnel file.

On June 5, 1991, plaintiff was discharged by Anacomp for the following reasons: failure to correct poor work habits; a poor attendance record; a negative attitude toward management; inflexibility toward change; and an inability to take orders from superiors. Plaintiff points out that, two months before her discharge, she had been commended by the regional office for her performance. In addition, Ms. Boyle testified in her deposition that although she remembers discussing plaintiff's termination with Mr. Humes and Mr. Santavicca, and that she sought their approval, she cannot now remember why she discharged plaintiff. Various employees testified that plaintiff performed her job adequately.

Plaintiff alleges in this action that she was fired in retaliation for whistle-blowing, both on the improper billing and on Ms. Hart's suspicious expense accounting. Plaintiff also claims that she has suffered intentional infliction of emotional distress due to the treatment she received from her superiors at Anacomp.

III. SUMMARY JUDGMENT STANDARD

When considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the nonmoving party. Langley v. Adams County, Colorado, 987 F.2d 1473, 1476 (10th Cir.1993). A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Anthony v. United States, 987 F.2d 670, 672 (10th Cir.1993). If the moving party does not bear the burden of proof at trial, it must show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986).

Once the movant meets these requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The nonmovant may not merely rest on the pleadings to meet this burden. Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. at 2511; Tersiner v. Union Pacific R.R., 740 F.Supp. 1519, 1522-23 (D.Kan. 1990). More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex, 477 U.S. at 327, 106 S.Ct. at 2555.

The burden at the summary judgment stage is similar to the burden of proof at trial. Stuart v. Beech Aircraft Corp., 753 F.Supp. 317, 318 (D.Kan.1990), aff'd, 936 F.2d 584 (10th Cir.1991). The court reviews the evidence on summary judgment under the substantive law and based upon the same evidentiary burden that the particular party will face at trial. Anderson, 477 U.S. at 254, 106 S.Ct. at 2513. For purposes of this motion, plaintiff has the burden to produce evidence from which a reasonable jury could conclude, by clear and convincing evidence, that plaintiff was retaliated against for whistle-blowing.¹See Pilcher v. Bd. of County Comm'rs of Wyandotte County, 14 Kan. App.2d 206, 214, 787 P.2d 1204, 1210 (1990).

IV. DISCUSSION

A. Retaliatory Discharge

Kansas has recognized that termination of an employee in retaliation for the good faith reporting of a serious infraction of the law by an employer or co-worker to either company management or law enforcement officials is an actionable tort. See Palmer v. Brown, 242 Kan. 893, 900, 752 P.2d 685, 689-90 (1988). In order to sustain a cause of action for retaliatory discharge plaintiff must show that a reasonably prudent person would have concluded that a co-worker was engaged in activities "in violation of rules, regulations, or the law pertaining to public health, safety, or the general welfare"; that Anacomp had knowledge of plaintiff's reporting of the alleged infraction prior to plaintiff's discharge; and plaintiff was discharged in retaliation for making the report. Id. at 900, 752 P.2d at 690. In addition, plaintiff must show she reported the infraction out of a good faith concern over the wrongful activity, rather than from a corrupt motive such as malice, jealousy, greed or spite. Id.

1. "Rules, Regulations, or the Law Pertaining to Public Health, Safety, or the General Welfare"

As to the first element of the Palmer test, the court finds that plaintiff has alleged sufficient facts from...