Hughs v. Valley State Bank

• Decision Date: 10 December 1999
• Docket Number: No. 80,840.,80,840.
• Citation: 994 P.2d 1079,26 Kan. App.2d 631
• Parties: BROOK HUGHS, Appellee, v. VALLEY STATE BANK, TIM KOHART, and KEVIN WHITE, Appellants.
• Court: Kansas Court of Appeals

26 Kan. App.2d 631

994 P.2d 1079

BROOK HUGHS, Appellee, v. VALLEY STATE BANK, TIM KOHART, and KEVIN WHITE, Appellants.

No. 80,840.

Court of Appeals of Kansas.

Opinion filed December 10, 1999.

Deanne Watts Hay and Stanley R. Parker, of Parker & Hay, L.L.P., of Topeka, for appellants.

Brian C. Wright and Jeffrey D. Wicks, of Turner & Boisseau, Chartered, of Great Bend, for appellee.

Barbara Scott Girard, of Topeka, for amicus curiae The Kansas Human Rights Commission.

Before CHIEF JUSTICE MCFARLAND, presiding, WAHL, S.J., and MARLA J. LUCKERT, District Judge, assigned.

WAHL, J.:

Valley State Bank (VSB), Tim Kohart, and Kevin White, defendants, appeal from the district court decision dismissing without prejudice plaintiff Brook Hughs' retaliation action against them under the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq. The Kansas Human Rights Commission (KHRC) has filed a brief as amicus curiae.

Plaintiff Brook Hughs was employed by defendant VSB between 1981 and 1994. In early 1994, Hughs filed a complaint with the KHRC, alleging sex discrimination by her supervisor, defendant Kevin White. Because the complaint was untimely under state law, it was not docketed by the KHRC. However, the KHRC forwarded the complaint to the federal Equal Employment Opportunity Commission (EEOC), which docketed the case in its agency.

In April 1994, VSB suspended Hughs' employment, and she was ultimately terminated in May 1994. On April 19, 1994, Hughs filed a charge with the EEOC, contending VSB had retaliated against her for filing the prior complaint. These allegations were set forth in an EEOC Form 5 which indicated Hughs wanted the charge filed with both the EEOC and the KHRC. The only employer identified anywhere in the complaint was VSB.

The EEOC forwarded a copy of Hughs' retaliation charge to the KHRC. The KHRC sent a letter to Hughs advising her to contact the KHRC if she wished to file a state complaint. Hughs contends she never received this letter. Because Hughs did not respond, the KHRC did not formally docket her retaliation complaint in its records.

During this time, there existed a worksharing agreement between the KHRC and the EEOC. There were also related contracts between the two agencies governing federal funding to the KHRC for investigating charges filed under the dual system.

In September 1994, the EEOC issued right to sue letters to Hughs on both the original and the retaliation charge. Hughs thereafter filed a civil action in federal district court alleging the defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994) et seq., and the KAAD.

During the federal case, the court ordered the KHRC to produce its records of Hughs' complaints. In response, the KHRC advised the federal court that no complaint from Hughs had ever been docketed with the agency. Defendants later moved to dismiss the federal suit, citing failure to exhaust administrative remedies and lack of federal court jurisdiction. In support of the latter argument it was asserted that VSB did not employ enough individuals to fall within the provisions of Title VII. The case was dismissed by the federal court based on defendants' uncontested motion. A week later, another order was issued by the federal court, dismissing the case without prejudice.

Hughs filed the present action in Hamilton County District Court shortly after the dismissal of the federal suit. The sole claim was that Hughs' termination was contrary to Kansas public policy. The defendants answered, asserting various affirmative defenses, including failure to exhaust administrative remedies. In her first amended petition, Hughs added a claim of retaliation under the KAAD. Neither complaint alleged Hughs exhausted any administrative remedies.

After discovery, defendants filed a motion for summary judgment, asserting that plaintiff's only claim for relief was under the KAAD and that she failed to timely file a complaint with the KHRC. Because it was now too late to file such a charge, the defendants claimed they were entitled to judgment as a matter of law. In her response, Hughs contended that the filing of her EEOC retaliation charge, which was forwarded to the KHRC, was sufficient to initiate proceedings before the KHRC. She also alleged that any filing date should be equitably tolled because the EEOC misled her into thinking no other filing was necessary.

In January 1998, the district court ruled on the motion. The court cited various KHRC administrative regulations and the EEOC-KHRC worksharing agreement to find that Hughs' EEOC complaint was "filed" with the KHRC and state administrative proceedings were therefore timely commenced. Because no final action had been taken by the KHRC, the district court found Hughs had not exhausted her administrative remedies. Accordingly, the complaint was dismissed without prejudice so Hughs could exhaust those remedies. Defendants timely appeal from that order.

Does this court have jurisdiction to hear this appeal?

The parties have argued the merits of this case without questioning the jurisdiction of this court. However, an appellate court has the duty to question jurisdiction on its own initiative. State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999). Parties cannot confer jurisdiction by consent or by failing to assert lack of jurisdiction. Copeland v. Robinson, 25 Kan. App.2d 717, 720, 970 P.2d 69 (1998),rev. denied 266 Kan. 1107 (1999).

The question is whether the trial court's ruling constitutes a final, appealable order. A final decision generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court. State ex. rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, 509, 941 P.2d 371 (1997)

. While there was a final order in this case in the sense that this proceeding has concluded, it is not clear whether it is final for purposes of appeal.

Generally, a district court order remanding an administrative proceeding to the agency for additional findings of fact is not a final, appealable order. Holton Transport, Inc. v. Kansas Corporation Comm'n, 10 Kan. App.2d 12, 690 P.2d 399 (1984), rev. denied 236 Kan. 875 (1985).

Holton Transport does not seem to control as this case is not a direct appeal from an administrative agency action. Instead, it is an independent cause of action under the KAAD. See Van Scoyk v. St. Mary's Assumption Parochial School, 224 Kan. 304, 305, 580 P.2d 1315 (1978). In addition, the trial court did not remand this case to the agency but simply dismissed the case without prejudice so the administrative remedies could be exhausted.

The Supreme Court has held that a defendant could not appeal from the denial of a summary judgment motion with respect to claims that were voluntarily dismissed without prejudice by the plaintiff. See Smith v. Welch, 265 Kan. 868, 883, 967 P.2d 727 (1998).

This case does not fit neatly with the Smith holding. In Smith, but for plaintiff's voluntary dismissal, the trial court had issued no final ruling on the plaintiffs claims. Here, the trial court dismissed plaintiffs claims without prejudice as premature. However, the trial court's ruling necessarily determines the administrative agency has jurisdiction to proceed with an investigation and that a second suit could follow thereafter. We have found no Kansas cases in which a defendant was allowed to file or prohibited from filing an appeal when the trial court dismissed without prejudice. The Supreme Court has permitted an appeal from an order overruling a motion to dismiss when the ground for dismissal was lack of jurisdiction. Hoffman v. Dautel, 190 Kan. 131, 135, 373 P.2d 191 (1962); Dick v. Drainage District No. 2, 187 Kan. 520, 524, 358 P.2d 744 (1961).

Federal courts have interpreted their statutes to permit a defendant to appeal from dismissals without prejudice when the defendant claims the dismissal should have been with prejudice. See, e.g., Farmer v. McDaniel, 98 F.3d 1548, 1549 (9th Cir. 1996),

cert. denied 520 U.S. 1188 (1997) (dismissal of habeas corpus petition without prejudice appealable when State argued petition should be dismissed with prejudice); Kirkland v. National Mortg. Network, Inc., 884 F.2d 1367, 1369-70 (11th Cir. 1989) (voluntary dismissal without prejudice appealable by defendant seeking to challenge court's order disqualifying counsel); Massachusetts Fire & Marine Ins. Co. v. Schmick, 58 F.2d 130 (8th Cir. 1932); see also 15A, Wright, Miller & Cooper, Federal Practice & Procedure, § 3914.6 (1992) (defendant can appeal dismissal without prejudice in order to argue dismissal should have been with prejudice).

While the district court dismissed the case so the KHRC could complete its administrative procedures, defendants contend that both the KHRC and the district court lack jurisdiction to hear Hughs' claims. As a result, defendants contend, they are adversely affected by the dismissal without prejudice as they may be subject to further action by the KHRC and subject to the potential of a second lawsuit. Cf. Domino Sugar v. Sugar Workers Local 392, 10 F.3d 1064, 1067 (4th Cir. 1993)

(dismissal of labor dispute without prejudice for failure to exhaust contractual remedies was appealable because ruling required plaintiff/employer to proceed to arbitration before seeking judicial relief).

These circumstances are unique, but we conclude that this court does have jurisdiction to hear this appeal. Did the filing of a charge of discrimination with the EEOC constitute the filing of a complaint with the KHRC?

In denying the defendants' motion to dismiss, the district court ruled that Hughs' filing of a retaliation charge with the EEOC constituted the filing of a charge with the KHRC. The court concluded that (1) the EEOC charge contained all the information required by the KAAD and KHRC regulations; (2) the KHRC received a copy of the EEOC charge within 6...