Freeman v. Kansas State Network, Inc.

• Decision Date: 24 July 1989
• Docket Number: No. 85-4038-S.,85-4038-S.
• Citation: 719 F. Supp. 995
• Parties: Mary Loftus FREEMAN, Plaintiff, v. KANSAS STATE NETWORK, INC., Topeka Television, Inc. a division of KSN, Inc., Dave Roberson, individually and as Station Manager of Kansas State Network, Inc., Al Sandubrae, individually and as Executive News Director of Kansas State Network, Inc., Robert Waddill, individually and as Executive Vice-president & General Manager of Kansas State Network, Inc., Defendants.
• Court: U.S. District Court — District of Kansas

719 F. Supp. 995

Mary Loftus FREEMAN, Plaintiff, v. KANSAS STATE NETWORK, INC., Topeka Television, Inc. a division of KSN, Inc., Dave Roberson, individually and as Station Manager of Kansas State Network, Inc., Al Sandubrae, individually and as Executive News Director of Kansas State Network, Inc., Robert Waddill, individually and as Executive Vice-president & General Manager of Kansas State Network, Inc., Defendants.

No. 85-4038-S.

United States District Court, D. Kansas.

July 24, 1989.

K. Gary Sebelius, Eidson, Lewis, Porter & Haynes, Topeka, Kan., for plaintiff.

Timothy B. Mustaine, Mary Kathleen, Foulston, Siefkin, Powers & Babcock Eberhardt, Wichita, Kan., for Kansas State Network, Inc., Topeka Television, Inc. and Al Sandubrae.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendants' motion for partial summary judgment. Plaintiff was employed by defendant Kansas State Network, Inc. ("KSN") and its predecessor from February 1, 1977 to June 10, 1983. Plaintiff claims her employment was terminated on grounds of her gender and because of her pregnancy. In the present motion, defendants seek summary judgment on all of plaintiff's state law claims and on a peripheral aspect of her Equal Pay Act claims. Defendants are not seeking summary judgment on plaintiff's federal sex discrimination claims. The court will specifically address the facts, as established for the purposes of this pending motion, when pertinent with regard to the challenged claims.

A moving party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing the absence of a genuine issue of material fact. This burden "may be discharged by `showing' — that is, pointing out to the district court — 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). "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986). The court must also consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985).

A. Kansas Act Against Discrimination and Exhaustion of Remedies

On June 10, 1983, defendants terminated plaintiff's employment with KSN. On August 19, 1983, plaintiff filed a complaint with the Kansas Commission on Civil Rights ("KCCR"), charging defendants with unlawful practices because of her sex. After this complaint had been on file with the state commission for nearly fifteen months, plaintiff requested and received a right-to-sue letter from the Equal Employment Opportunity Commission. The right-to-sue letter, dated December 1, 1984, advised plaintiff that she had ninety days in which to file a Tile VII claim. On February 1, 1985, plaintiff filed her initial complaint, requesting relief under Title VII, the Equal Pay Act, and state tort law. This complaint did not include a claim under the Kansas Act Against Discrimination ("KAAD"). On February 25, 1985, the KCCR advised plaintiff that it was dismissing her complaint because of her federal lawsuit. This dismissal was pursuant to a KCCR regulation, see K.A.R. 21-41-10. Thereafter, plaintiff amended her complaint in the federal action by adding a claim under the Kansas Act Against Discrimination.

Defendants seek summary judgment on plaintiff's claim under the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq., because plaintiff failed to exhaust her administrative remedies. The Act establishes the administrative process for pursuing a claim under the Kansas Act Against Discrimination. K.S.A. § 44-1005. The Kansas Supreme Court has held that the administrative remedies must be exhausted before recourse to the courts. Van Scovk v. St. Mary's Assumption Parochial School, 224 Kan. 304, 306, 580 P.2d 1315, 1318 (1978).

Defendants contend that plaintiff failed to exhaust her administrative remedies because she filed a federal lawsuit before the KCCR had made even a probable cause determination. Plaintiff argues that she did exhaust the required administrative remedies. Plaintiff contends that she did not assert a claim under the Kansas Act in her initial complaint in the federal court action because the administrative review of this claim was still pending with the KCCR. She claims she filed the federal suit to preserve her Title VII claim, which had to be filed within ninety days of her right-to-sue letter, and her tort claims, on which the statute of limitations period was approaching. After the suit was filed, the KCCR administratively dismissed plaintiff's complaint. Thus, she argues that the available administrative remedy was exhausted and recourse could be made to this court.

The Kansas Supreme Court has stated that in certain cases the administrative proceedings are terminated prior to any adjudication by the KCCR. For example, if the KCCR makes a "no probable cause" finding, the Commission's doors are closed and the proceedings have been exhausted. Id. at 306, 580 P.2d at 1317. In such circumstances, the administrative remedies are exhausted. Id.

In the present case, the KCCR administratively dismissed plaintiff's claim without adjudication. Plaintiff raised a claim under the Act in this lawsuit only after the Commission had closed its doors to her.

Defendants argue that plaintiff should not be allowed to claim exhaustion of remedies because the KCCR dismissed her charge as a direct result of her filing the Title VII lawsuit. Defendants argue that plaintiff deliberately short-circuited the administrative process by filing this lawsuit.

Regardless of how it was accomplished, plaintiff did wait until the KCCR dismissed her charge before seeking recovery in the courts on that claim. Therefore, in this particular case, the court finds that the administrative remedies were exhausted. Plaintiff should not suffer because of the KCCR's decision to procedurally dismiss her charge without reaching the merits of that charge. If the court accepted the result requested by defendants, an inequity would fall upon plaintiff. Plaintiff would be forced to choose between her available forms of relief. Under defendants' theory, plaintiff would have to forego either her Title VII and tort claims and wait for the KCCR to proceed with her KAAD charge, or forego the KAAD claim and proceed only on the Title VII and tort claims. The court refuses to adopt this approach. The court finds that plaintiff properly waited until the KCCR terminated its proceedings before she brought her claim under the Kansas Act to court.

B. Fraudulent Inducement

Plaintiff asserts a claim that she was fraudulently induced into signing the employment contract presented to her in early 1983, which included a covenant not to compete. Plaintiff's theory on this claim is that when defendants offered her the contract with the covenant not to compete, they had no intention of retaining her as an employee, but sought to have her bound by the covenant. Plaintiff claims that defendants never indicated the precarious or tenuous nature of her continued employment, even after her inquiries and voiced reservations about the restrictive covenant. Plaintiff contends that as a result of the fraudulent inducement, she incurred damages in the nature of attorney's fees and in obtaining the negotiated release from the covenant so that she could take a position with WIBW (a Topeka television station that competes with defendant KSN), and that she did not initially receive as good a position with WIBW as she could have absent the covenant.

The elements of fraudulent inducement are set out in Earth Scientists Ltd. v. United States Fidelity & Guaranty Co., 619 F.Supp. 1465, 1472 (D.Kan.1985), a case in which plaintiff claimed defendant fraudulently induced it to purchase an insurance policy. To show fraudulent inducement, the plaintiff must prove: (1) that defendant made a false statement of fact; (2) defendant knew that the statement was false; (3) defendant made the statement with the intent to deceive and with reckless disregard for the truth of the statement; and (4) plaintiff justifiably relied on the statement and sustained injury. Id. The first element may be shown if defendant concealed facts which they were obligated to reveal. See Citizen State Bank v. Gilmore, 226 Kan. 662, 667, 603 P.2d 605, 610 (1979).

The established facts for purposes of this motion are as follows. In July of 1982, defendant KSN purchased Channel 27 in Topeka, Kansas. At that time, plaintiff was a 6:00 p.m. and 10:00 p.m. anchor of their news broadcast. KSN had a policy at its other stations that all front line, on-air employees were required to execute written contracts which included covenants not to compete with KSN. On February 22, 1983, defendants presented plaintiff with a proposed written employment contract which included a covenant not to compete. Similar proposed contracts were presented to plaintiff's...