Flenker v. Willamette Industries, Inc., 80408

• Citation: 967 P.2d 295,266 Kan. 198
• Decision Date: 06 November 1998
• Docket Number: No. 80408,80408
• Parties: , 14 IER Cases 913 David FLENKER, Appellant, v. WILLAMETTE INDUSTRIES, INC., Appellee.
• Court: United States State Supreme Court of Kansas

Page 295

967 P.2d 295

266 Kan. 198, 14 IER Cases 913

David FLENKER, Appellant, v. WILLAMETTE INDUSTRIES, INC., Appellee.

No. 80408.

Supreme Court of Kansas.

Nov. 6, 1998.

Syllabus by the Court

The remedy provided by the Occupational Safety and Health Administration § 11(c) (29 U.S.C. § 660[c] [1994] ) for employees who allege that they have been discharged in retaliation for filing complaints under that statute does not preclude the filing of a Kansas common-law wrongful discharge claim under Kansas's public policy exception to at-will employment. On a certification of a question of law from the United States Court of Appeals for the Tenth Circuit, ROBERT H. HENRY, judge. Opinion filed November 6, 1998. The question certified is determined.

Stephen J. Dennis, of Overland Park, argued the cause and was on the brief for appellant.

Rody P. Biggert, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, Illinois, argued the cause, and John L. Vratil, of Lathrop & Gage, L.L.C., of Overland Park, was with him on the brief for appellee.

SIX, Justice:

The United States Court of Appeals for the Tenth Circuit has certified the following question to this court under K.S.A. 60-3201:

"Does the remedy provided by OSHA § 11(c) [29 U.S.C. § 660(c) (1994) ] for employees who allege that they have been discharged in retaliation for filing complaints under that statute preclude the filing of a Kansas common law wrongful discharge claim under Kansas's public policy exception to at-will employment?"

The answer is, "no."

This case arises out of the March 11, 1994, firing of David Flenker, a worker at Willamette Industries, Inc.'s (Willamette) corrugated paper manufacturing plant. Willamette's basis for firing Flenker was that he failed to comply with the terms of the rehabilitation agreement he had signed under Willamette's alcohol and drug use policy. Flenker contends that he was fired because he reported unsafe working conditions to Willamette and the Occupational Safety and Health Administration (OSHA).

Our analysis of the certified question is advanced by posing and answering two secondary questions.

1. Does the rule in Coleman v. Safeway Stores, Inc., 242 Kan. 804, 812-13, 752 P.2d 645 (1988), extend to situations other than the collective bargaining agreement context? The answer is "yes."

2. If Coleman extends beyond the collective bargaining context, is the remedy in OSHA § 11(c) "adequate"? The answer is "no."

FACTS

The Tenth Circuit Certification Order informs us that:

"Mr. Flenker worked as a Class C mechanic for Willamette, a corrugated paper manufacturer. After a dispute with his temporary supervisor concerning the safety of a piece of machinery known as a corrugated downstacker device, Mr. Flenker made it known at the plant that he intended to file a complaint with OSHA regarding the machinery.

"Mr. Flenker received a disciplinary warning as a result of the dispute with his temporary supervisor. The next day, Mr. Flenker received a three-day suspension from his supervisor for his improper installation of gauges and for the improper repair of sprockets on the bandler line.

"Mr. Flenker later filed his OSHA complaint, alleging violations concerning the safety of the corrugated downstacker and other matters. OSHA subsequently made a surprise investigation of the Willamette plant. Although the downstacker met OSHA safety standards, OSHA found that several of Mr. Flenker's other complaints were valid.

"About a month later, plant manager Dale McGinnis terminated Mr. Flenker's employment, contending Mr. Flenker failed to obey the terms of a Rehabilitation Agreement he had signed under Willamette's Alcohol and Drug Use Policy. Mr. Flenker claims he was fired because he reported unsafe working conditions to Willamette and to OSHA.

"Shortly after his termination, Mr. Flenker filed a section 11(c) retaliatory discharge complaint with OSHA, which he later withdrew. Mr. Flenker was informed, presumably by an OSHA employee, that because he had fixed the machine in question, which had been a part of his section 11(c) claim, he no longer had a claim under OSHA. In September 1995, he filed this action in state court. Willamette removed the action to federal court pursuant to 28 U.S.C. § 1446(b).

"Mr. Flenker claims that he was discharged because he exercised his statutory right to report unsafe working conditions to his employer. He seeks compensatory damages for lost wages and benefits and emotional pain and suffering."

Flenker chose to litigate his claims in state court; however, Willamette removed the lawsuit to federal court.

DISCUSSION

We restate the certified question:

Does the remedy provided by OSHA § 11(c) for employees who allege that they have been discharged in retaliation for filing complaints under that statute preclude the filing of a Kansas common law wrongful discharge claim under Kansas' public policy exception to at-will employment?

At-Will Employment and Exceptions

At-will employment is the general rule in Kansas. We said in Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 546, 545 P.2d 312 (1976): "[I]n the absence of a contract, expressed or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party."

We have recognized public policy exceptions to the at-will employment doctrine. For a review of the Kansas case law, see Worth and Landis, Fire at Will? The Status of Judicially Created Exceptions to Employment-at-Will in Kansas, 64 J.K.B.A. 22 (1995). The so-called whistle-blower's exception was first announced in Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988). Termination, in retaliation for the good faith reporting of a co-worker's or employer's serious infraction of rules, regulations, or law pertaining to public health, safety, and the general welfare, is an actionable tort. 242 Kan. at 900, 752 P.2d 685. Palmer involved an employee's reporting of allegedly improper medicaid billing practices to "unspecified authorities." 242 Kan. at 894, 752 P.2d 685.

Willamette argues that Flenker has no independent state law tort claim, relying on Polson v. Davis, 895 F.2d 705 (10th Cir.1990). Federal courts in Kansas have followed Polson 's interpretation of Kansas law (exceptions to the at-will employment doctrine should be limited to situations where there is no adequate alternative remedy), e.g., Conner v. Schnuck Markets, Inc., 906 F.Supp. 606, 614 (D.Kan.1995).

Polson observed that Kansas federal district courts were split on whether the public policy exception should be extended to cover conduct protected under a statutory scheme, specifically the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq. 895 F.2d at 709. Wynn v. Boeing Military Airplane Co., 595 F.Supp. 727 (D.Kan.1984) held that the public policy exception permitting an independent cause of action should apply in cases in which a worker's termination is alleged to stem from conduct proscribed by KAAD. Judge Theis in Wynn reasoned that the fact that the various remedies might differ is sufficient to require recognition of a state common law remedy. 895 F.2d at 709.

In contrast, Judge Rogers in Tarr v. Riberglass, Inc., No. 83-4234, 1984 WL 1481 (D.Kan. February 3, 1984), and Judge O'Connor in the lower Polson decision, 635 F.Supp. 1130 (D.Kan.1986), and Robinson v. Colt Indus. Operating Corp., No. 84-2471 (unpublished D. Kan. March 5, 1986), held that the availability of remedies under KAAD precludes expanding the remedies available at common law. 895 F.2d at 709.

Polson chose to follow the preclusive approach, discerning in Coleman v. Safeway Stores, Inc., 242 Kan. at 813-14, 752 P.2d 645, a reliance on "inadequacy of arbitration to compensate employees for torts committed by employers." 895 F.2d at 709. Polson concluded: "It appears that we must investigate the adequacy of the alternative remedy before classifying a situation as being under the public policy exception to the employment-at-will doctrine." 895 F.2d at 709. Polson reasoned that this court would adopt the view that KAAD provides an adequate and exclusive state remedy for violations of the public policy at issue. 895 F.2d at 709. We note, however, that Polson seems to employ a strict view of "adequate," finding there is no evidence that the remedies provided for in KAAD were "constitutionally inadequate to compensate plaintiff," or "so inadequate to enforce the stated public policy as to require bolstering by a common law cause of action." 895 F.2d at 709-10.

Coleman v. Safeway Stores

Our discussion of Polson necessarily leads to a review of Coleman. Coleman is important here because our answer to the certified question is based on our precedent, not on federal rulings interpreting Kansas law.

Coleman overruled Cox v. United Technologies, 240 Kan. 95, 727 P.2d 456 (1986), Smith v. United Technologies, 240 Kan. 562, 731 P.2d 871 (1987), and Armstrong v. Goldblatt Tool Co., 242 Kan. 164, 747 P.2d 119 (1987). The overruled cases involved the interrelationship of Kansas tort law and the law of labor union contracts. In each of the three overruled cases: (1) a discharged employee was covered by a collective bargaining agreement, (2) the agreement prohibited the employee's discharge except for just cause, and (3) the employee was held not to have a cause of action in tort for wrongful discharge. Coleman reasoned that a retaliatory discharge action for filing a workers compensation claim is based on a violation of state public policy independent of a collective bargaining agreement. 242 Kan. 804, Syl. p 1, 752 P.2d 645. Coleman also concluded that the arbitration procedures provided for in the collective bargaining agreement were a "limited remedy," and might not result in the employee's right being "adequately protected." 242 Kan. at 813-14, 752 P.2d 645.

Preemption and Alternate Remedies Preclusion

Preemption is not an issue here. Willamette does not...