Dorner v. Polsinelli, White, Vardeman & Shalton

• Decision Date: 01 June 1994
• Docket Number: Civ. A. No. 93-2328-EEO.
• Citation: 856 F. Supp. 1483
• Court: U.S. District Court — District of Kansas
• Parties: Jo Anne DORNER, Plaintiff, v. POLSINELLI, WHITE, VARDEMAN & SHALTON, P.C., Defendant.

856 F. Supp. 1483

Jo Anne DORNER, Plaintiff, v. POLSINELLI, WHITE, VARDEMAN & SHALTON, P.C., Defendant.

Civ. A. No. 93-2328-EEO.

United States District Court, D. Kansas.

June 1, 1994.

Sue Phillips, Elizabeth A. Phillips, Phillips & Phillips, Kansas City, MO, for plaintiff.

Charles W. German, Robert M. Thompson, Phillip G. Greenfield, Brenda G. Hamilton, Rouse, Hendricks, German, May & Shank, Kansas City, MO, for defendant.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, District Judge.

This matter is before the court on defendant's motion for summary judgment (Doc. # 42). Plaintiff has responded and opposes the motion. Having reviewed the motion, defendant's briefs in support thereof, plaintiff's brief in response, and exhibits, the court is now prepared to rule. For the reasons set forth below, defendant's motion is granted.

Count I of plaintiff's complaint alleges that plaintiff was retaliatorily discharged in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 215(a)(3). Count II alleges that defendant violated the FLSA by withholding paychecks and failing to pay for overtime work, and Count III alleges that the withholding of plaintiff's paychecks violated the Kansas Wage Payment Act. Count IV alleges a violation of Title VII, 42 U.S.C. § 2000e et seq., and the Equal Pay Act. Count V asserts a violation of the Kansas Act Against Discrimination ("KAAD"), and Count VI alleges a claim of negligent supervision. Finally, Counts VII and VIII allege claims for tortious interference with prospective business relationships and defamation.

I. Standards Governing Summary Judgment.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Hicks v. Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"We must view the record in the light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir. 1988). Where the nonmoving party fails to properly respond to the motion for summary judgment, the facts as set forth by the moving party are deemed admitted for purposes of the summary judgment motion. D.Kan. Rule 206(c). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512.

II. Factual Background.

The facts appear to be as follows for purposes of this motion:

Plaintiff Jo Anne Dorner was employed as a full-time paralegal and office coordinator by defendant, a Kansas City law firm, from October 30, 1989, to August 28, 1992. Plaintiff believed she had not been properly compensated by defendant for overtime hours worked. Following her employment with defendant, plaintiff demanded money to satisfy employment-related claims. On September 25, 1992, following negotiations concerning these claims, the parties executed a "Release and Receipt Between JoAnne E. Ludecke¹ and Polsinelli, White, Vardeman & Shalton." Defendant paid plaintiff $4,047.52 in exchange for, among other things, a release stating that plaintiff "waives, abandons, and releases all claims for additional pay including salary, back pay, sick leave pay, vacation pay, bonus pay, overtime pay, severance pay, compensation of any sort or damages," and further stating that she had been paid in full for all such claims.

Prior to executing the release, plaintiff consulted with an administrative agency on at least two occasions to determine the relevant law relating to payment of wages and overtime compensation. Plaintiff testified that she is an experienced litigation paralegal, who has dealt with many releases, probably over 100, during the course of her work. Plaintiff understands that releases have legal significance, and understands that in the context of litigation, parties enter into settlement agreements which include releases. Additionally, plaintiff testified she assumes a document is a release if it states it is a release in the title. She knew at the time she signed the release that it stated "release" in the title. When asked whether she could have sought an attorney's advice with respect to whether she should sign the document, plaintiff responded: "I wasn't being held at gunpoint. But I felt like I was in a position, to get those checks, I was going to have to sign that document."

Plaintiff agreed to sign the release if she could "cross out some things." Plaintiff did delete, with the agreement of defendant, a portion of the release language. Plaintiff did not delete, however, the release language that waives any claim for damages.

On or about September 29, 1992, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). In that charge, plaintiff alleged discrimination with respect to the terms and conditions of her employment by defendant. The EEOC issued a right to sue letter on June 30, 1993. On or about February 5, 1993, plaintiff filed a complaint with the Kansas Human Rights Commission ("KHRC") in which she made similar allegations. The KHRC complaint was still pending and remained unresolved at the time plaintiff filed this lawsuit on August 2, 1993. In plaintiff's response to the summary judgment motion, she asserts she is now waiting for the KHRC to deny reconsideration of her application.

On November 29, 1993, defendant made, pursuant to Federal Rule of Civil Procedure 68, Offers of Judgment on Count II (FLSA) in the amount of $7,000.00, and on Count IV (Title VII/Equal Pay Act) in the amount of $1,000.00. Plaintiff accepted these Offers of Judgment by letter dated December 9, 1993. The two Offers of Judgment, along with plaintiff's acceptance, were filed with the court on December 13, 1993. Additionally, on November 30, 1993, plaintiff formally agreed, during her deposition, to dismiss Counts VII and VIII without prejudice, and does not now attempt to resurrect those Counts. Consequently, the only claims now pending before the court are: Count I for retaliatory discharge under the FLSA, Count III under the Kansas Wage Payment Act, Count V under the KAAD, and Count VI for negligent supervision.

III. Discussion.

Defendant moves for summary judgment on several grounds. First, defendant maintains that summary judgment is appropriate as to all pending counts because the release plaintiff signed discharges defendant from all claims. Additionally, defendant contends that Counts V and VI are deficient as a matter of law, regardless of the release.

A. The Release.

The release plaintiff executed recites in pertinent part as follows:

The lump sum payment is accepted by Employee in lieu of any and all other salary, back pay, sick leave pay, vacation pay, bonus pay, overtime pay, and* severance pay, compensation of any sort or damages.** Employee accordingly waives, abandons and releases all claims for additional pay including salary, back pay, sick leave pay, vacation pay, bonus pay, overtime pay, severance pay, compensation of any sort or damages.

Further, Employee acknowledges that she has been paid in full all compensation owed or allegedly owed, including salary, back pay, sick leave pay, vacation pay, bonus pay, overtime pay, severance pay, compensation of any sort or damages.

* The parties added the word "and" to the original language of the release, and initialed the change.

** Plaintiff crossed out this language of the original release, and initialed the change.

Defendant notes that under the law, plaintiff's intent is to be gleaned from the release itself where the instrument expresses that intent. Reynard v. Bradshaw, 196 Kan. 97, 409 P.2d 1011 (1966). Defendant contends that because the release plaintiff signed specifically "releases all claims for additional pay, ... compensation of any sort or damages," and because the only relief plaintiff seeks in her lawsuit is wages, compensation, and damages, defendant is fully released from all claims plaintiff has asserted in her lawsuit.

In response, plaintiff contends that the release does not bar her claims against defendant. She advances several theories in support of this contention. First, she argues that there was no release because there was no "meeting of the minds" and no consideration; second, she...