Foster v. Alliedsignal, Inc.

• Citation: 293 F.3d 1187
• Decision Date: 18 June 2002
• Docket Number: No. 00-3243.,00-3243.
• Parties: Juanita M. FOSTER, Plaintiff-Appellant, v. ALLIEDSIGNAL INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

293 F.3d 1187

Juanita M. FOSTER, Plaintiff-Appellant, v. ALLIEDSIGNAL INC., Defendant-Appellee.

No. 00-3243.

United States Court of Appeals, Tenth Circuit.

June 18, 2002.

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David O. Alegria, McCullough, Wareheim & LaBunker, P.A., Topeka, KS, for Plaintiff-Appellant.

Daniel B. Boatright (J. Nick Badgerow, with him on the brief), Spencer Fane Britt & Browne LLP, Overland Park, KS, for Defendant-Appellee.

Before HENRY, HOLLOWAY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Plaintiff-Appellant Juanita M. Foster, an employee at AlliedSignal, Inc. since 1979, injured her arm and lower back in November 1995 while on the job. In December 1995, after being absent from work for several days, Foster was informed by AlliedSignal that she had been fired. Foster sued AlliedSignal in federal district court, claiming that her employment had been terminated in retaliation for her exercise of protected rights under the Kansas Workers Compensation Act, Kan. Stat. Ann. §§ 44-501 to -5125. AlliedSignal moved for summary judgment, which the district court granted upon concluding that Foster "failed to present clear and convincing evidence that she was not in violation of defendant's attendance policies" (3 Appellant's App. at 808) and that she "failed to set forth sufficient evidence to establish pretext" on the part of AlliedSignal (id. at 809). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.

I

On November 13, 1995, Foster injured her arm and back when she reached for some parts in a tub that shifted and hit her arm, causing her chair to roll out from under her. She reported her on-the-job injury to an employee in the human resources department, who in turn called Robin Thompson, the company nurse. Nurse Thompson advised Foster to take some ibuprofen, place heat or ice on the strain, and lie down for a few minutes. After this treatment, Foster returned to work and finished her shift.

On November 16, Foster sought further treatment from Dr. Scott Steelman, the company physician. Although Dr. Steelman cleared her to continue working in her current position, five days later Foster informed Nurse Thompson that her back was hurting and that she wanted to go home. The next day Foster visited her personal physician, Dr. April Bremby, who prescribed medication and physical therapy. Foster continued to work for the month of November.

On December 4, Foster's attorney sent via certified mail a claim for workers compensation benefits; an unidentified employee at AlliedSignal signed for the certified mail on December 7. On December 5, Foster again visited Dr. Bremby, who executed a form requesting that she be placed on medical leave from December 1, 1995, through January 1, 1996, because of work-related injuries; that day, Foster delivered this request to an unidentified AlliedSignal employee at the front desk. On December 7, she was again examined by Dr. Steelman, this time in the presence of Nurse Thompson. After concluding that Foster was able to continue performing her job, Dr. Steelman denied her request for a medical leave of absence and, according to Dr. Steelman and Nurse Thompson, informed Foster of the denial at that time.

Foster did not report to work on December 8, December 11, or December 12, and testified in deposition that she did not call anyone at AlliedSignal on any of those days seeking to be excused from work.¹ AlliedSignal's attendance policy provides for the discharge of an employee when the employee is absent for three consecutive days and has not called, or when the employee is absent for eight or more days within the last 180 days of employment. Foster was absent from work on September 11 and 29, October 5, and December 1, 5, 6, 7, 8, 11, and 12. Bob Trageser, Foster's supervisor, and James P. Williams, an AlliedSignal human resources team leader, jointly decided to terminate Foster — allegedly pursuant to AlliedSignal's attendance policy — with Trageser calling Foster on December 13, 1995, to tell her she had been fired. Although both men knew that Foster was trying to obtain a medical leave of absence, they claim not to have been aware either that she was requesting medical leave due to a work-related injury or that she had filed a workers compensation claim. Foster contends that the explanation given for her termination was pretextual and that she was fired in retaliation for exercising her rights under the Kansas Workers Compensation Act.

II

We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir.2000). 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). When applying this standard we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To avoid summary judgment, the party opposing the motion must establish, at a minimum, an inference of the existence of each essential element to the case. Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994).

Kansas generally follows the employment-at-will doctrine, meaning that employment is terminable at will by either the employer or the employee for any reason or for no reason at all. Morriss v. Coleman Co., 241 Kan. 501, 738 P.2d 841, 846 (Kan.1987). There are exceptions, however, and under Kansas law an employer cannot fire an employee in retaliation for the employee's filing of a workers compensation claim. Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186, 192 (Kan.1981). Moreover, an employee cannot be discharged "for being absent or failing to call in an anticipated absence as the result of a work-related injury," because this would allow an employer an indirect method of firing an employee for filing a workers compensation claim. Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645, 652 (Kan.1988). Thus, "any absences caused by [an employee's] work-related injury should not be counted against" the employee by her employer. Id. This rule applies even to employees who have not yet filed a workers compensation claim. Ortega v. IBP, Inc., 255 Kan. 513, 874 P.2d 1188, 1191 (Kan.1994).

Foster can recover by "proving that [her] discharge was `based on,' `because of,' `motivated by,' or `due to' the employer's intent to retaliate." Sanjuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir.1998) (quoting Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 815 P.2d 72, 88 (Kan.1991)). However, she does "not need to show that retaliation was the employer's sole motive or reason for the termination." Id. Nor must she provide direct proof of retaliatory intent. "Retaliatory discharge cases must generally be proven by circumstantial rather than direct evidence because rarely will an employer admit to having discharged an employee in retaliation for exercising a right." Chaparro v. IBP, Inc., 873 F.Supp. 1465 1472 (D.Kan.1995), aff'd, 104 F.3d 367 (10th Cir.1996) (unpublished table decision); Marinhagen v. Boster, Inc., 17 Kan. App.2d 532, 840 P.2d 534, 540 (Kan.Ct.App.1992).

Because such cases are rarely proven by direct evidence, the Kansas courts have adopted the McDonnell Douglas² burden-shifting framework for analyzing retaliatory discharge cases. See Sanjuan v. IBP, Inc., 275 F.3d 1290, 1294 (10th Cir.2002). At the first stage, a plaintiff makes out a prima facie case raising a rebuttable presumption of retaliatory intent by showing that

(1) he or she filed a claim for workers' compensation benefits, or sustained an injury for which he might assert a future claim for such benefits; (2) that the employer had knowledge of plaintiff's compensation claim, or the fact that he had sustained a work-related injury for which the plaintiff might file a future claim for benefits; (3) that the employer terminated the plaintiff's employment; and (4) that a causal connection existed between the protected activity or injury, and the termination.

Sanjuan, 160 F.3d at 1298. Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-retaliatory justification for the discharge. Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1116 (10th Cir.2001). "If the employer meets this burden, the burden shifts back to the plaintiff but the plaintiff must show clear and convincing evidence that he or she was terminated in retaliation for exercising rights under the Workers' Compensation Act." Id. (quotation omitted).

AlliedSignal does not dispute that Foster suffered a work-related injury for which she might file a claim, that it had knowledge of the injury, or that it terminated Foster's employment. The company contends, however, that it is entitled to summary judgment because "there is simply no evidence to support the fourth element of plaintiff's prima facie case."³ (Appellee's Br. at 17.) AlliedSignal is mistaken.

To establish a causal connection, a plaintiff must establish that the individual or individuals who actually undertook the alleged retaliatory acts were aware or should have been aware of plaintiff's participation in the protected activity. See Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1265 (10th Cir.1998) (holding that a retaliatory discharge claim must be predicated on intentional and knowing retaliation); see also Fenton v. HiSAN, Inc., 174 F.3d 827, 832 (6th Cir.1999); Cohen v. Fred Meyer, Inc., 686 F.2d 793, 797 (9th Cir.1982). Foster must therefore show that at the time of her discharge the AlliedSignal decisionmakers responsible for her firing knew or should have known...