Cox v. United Technologies, Essex Group, Inc., Wire and Cable Div.

• Citation: 727 P.2d 456,240 Kan. 95
• Decision Date: 31 October 1986
• Docket Number: No. 58350,58350
• Parties: , 55 USLW 2280, 1 IER Cases 1254 Terry COX, Appellant, v. UNITED TECHNOLOGIES, ESSEX GROUP, INC., WIRE AND CABLE DIVISION, Appellee.
• Court: Kansas Supreme Court

Page 456

727 P.2d 456

240 Kan. 95, 55 USLW 2280, 1 IER Cases 1254

Terry COX, Appellant, v. UNITED TECHNOLOGIES, ESSEX GROUP, INC., WIRE AND CABLE DIVISION, Appellee.

No. 58350.

Supreme Court of Kansas.

Oct. 31, 1986.

Syllabus by the Court

The tort of retaliatory discharge for filing a workers' compensation claim which was judicially recognized in Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981), in favor of employees-at-will is discussed and the court declines to extend recognition of the tort action to include an employee adequately protected contractually from such discharge by a collective bargaining agreement.

Frederick J. Patton, II, of Patton & Patton, Topeka, argued the cause and was on the briefs, for appellant.

Thomas H. Bornholdt, of Bornholdt, Landeck & Owens, Overland Park, argued the cause and was on the brief, for appellee.

McFARLAND, Justice:

This is an appeal from a summary judgment entered by the district court wherein it was held that an employee covered by a collective bargaining agreement may not maintain a tort action against his employer for alleged retaliatory discharge for filing a workers' compensation claim.

The issue before us is a question of law. The factual background from which this litigation arises may be summarized as follows. Plaintiff Terry Cox was an employee of defendant United Technologies, Essex Group, Inc., in 1982, serving as a fine-wire operator. Plaintiff filed a workers' compensation claim which was settled on November 4, 1982. Thirteen days later plaintiff was discharged from his employment on the ground he had failed to report for work following the conclusion of his workers' compensation claim. Prior to plaintiff's termination, a co-worker (Donald Smith) had been terminated on the same ground. Both employees were members of Local Union No. 851, United Rubber, Cork, Linoleum and Plastic Workers of America, and their employment was covered by a collective bargaining agreement. Said agreement contained the provision that an employee would not be terminated except for proper cause and provided grievance procedures, including binding arbitration, for the resolution of complaints and disputes.

Both employees filed grievances based on their terminations. The Smith grievance was concluded first. The arbitrator found that Smith's discharge was unjust and restored Smith to duty, but denied back pay because Smith had failed to mitigate his position after termination. Plaintiff subsequently settled his grievance on the same basis as the arbitrator's decision relative to Smith and was restored to duty. On April 20, 1983, plaintiff brought this action against defendant employer seeking, inter alia, actual damages and punitive damages for alleged retaliatory discharge for having filed a workers' compensation claim. The district court entered summary judgment on the retaliatory discharge claim on the ground that such an action is not available in Kansas to an employee covered by a collective bargaining agreement such as covered plaintiff. Plaintiff's cause of action based upon alleged violation of 42 U.S.C. § 1981 (1982) proceeded to jury trial wherein a verdict was entered in favor of defendant. The sole issue on appeal concerns the propriety of the entry of summary judgment.

The issue before us may be stated as follows:

MAY A CAUSE OF ACTION BE MAINTAINED FOR AN ALLEGED RETALIATORY DISCHARGE BY AN EMPLOYEE WHOSE EMPLOYMENT RELATIONSHIP IS GOVERNED BY A COLLECTIVE BARGAINING AGREEMENT WHICH INCLUDES GRIEVANCE AND ARBITRATION PROCEDURES?

This precise issue is one of first impression in this state. The Court of Appeals, in Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981), recognized an action for retaliatory discharge for filing a workers' compensation claim brought by an employee-at-will. Plaintiff herein asks the court to extend the Court of Appeals' holding in Murphy to include employees covered by a collective bargaining agreement such as the one before us. Plaintiff argues that a tort action for retaliatory discharge would provide him with a remedy unavailable in a grievance procedure--namely, the right to seek punitive damages.

There is a strong public policy underlying the Workmen's Compensation Act (K.S.A. 44-501 et seq.) and favoring the worker's right to avail himself, or herself, of the benefits arising therefrom. An employee-at-will may be discharged with or without cause. An unscrupulous employer could subvert this public policy by placing the employee-at-will in the position of having to choose between filing a workers' compensation claim or keeping his or her employment. Recognition of the tort of retaliatory discharge for filing of a workers' compensation claim, by the Court of Appeals in Murphy, judicially created a remedy for a class of employees having no contractual remedy.

Plaintiff's employment is covered by a collective bargaining agreement which permits his employer to discharge him only for "proper cause." Clearly, a discharge predicated upon an employee having exercised his right to file a workers' compensation claim would not constitute "proper cause." The contract herein contains a grievance procedure which includes binding arbitration of grievances. Through the grievance procedure, an improperly discharged employee may be restored to his employment and receive back pay. Valuable health insurance, seniority, and pension rights may be protected through the grievance procedure.

The employee-at-will's tort remedy does provide relief, at most, of actual and punitive damages and cannot restore the job and the other benefits of continued employment.

In granting summary judgment herein, the district court relied heavily on Cook v. Caterpillar Tractor Co., 85 Ill.App.3d 402, 40 Ill.Dec. 864, 407 N.E.2d 95 (1980). In Cook the Illinois Appellate Court was confronted with a similar situation to the one before us. In a prior case the Illinois Supreme Court had recognized a tort cause of action by an employee-at-will who alleged retaliatory discharge for having filed a workers' compensation claim. The Cook court was asked to extend the prior holding to cover a union employee operating under a collective bargaining agreement. The Cook court declined to do so, stating:

"In Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, the Illinois Supreme Court stated that where there has been a retaliatory discharge of an employee terminable at will, the discharged employee may bring an action in tort. The reasoning behind the court's decision is that an employee terminable at will has no recourse against his employer if the employer decides to discharge the employee for filing a workmen's compensation claim. In the absence of the ability to recover in tort, an employee terminable at will would be forced to choose between continued employment and the workmen's compensation legally due him. This would have seriously undermined the Workmen's Compensation Act, and so the court permitted employees terminable at will to sue in tort for retaliatory discharge.

"The issue in this case is whether Kelsay is applicable to a situation where an employee is not terminable at will, but instead has recourse against an employer...