Hysten v. Burlington Northern Santa Fe Ry. Co.

• Decision Date: 19 March 2004
• Docket Number: No. 90,730,90,730
• Citation: 85 P.3d 1183,277 Kan. 551
• Parties: LARRY D. HYSTEN, Plaintiff, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant.
• Court: Kansas Supreme Court

277 Kan. 551

85 P.3d 1183

LARRY D. HYSTEN, Plaintiff, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant.

No. 90,730

Supreme Court of Kansas.

Opinion filed March 19, 2004.

Alan V. Johnson, of Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C., of Topeka, argued the cause, and Stephen D. Lanterman, of the same firm, was with him on the briefs for plaintiff.

David R. Cooper, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause and was on the brief for defendant.

The opinion of the court was delivered by

BEIER, J.

This case comes to us on two certified questions from the United States Court of Appeals for the Tenth Circuit:

1. Independent of the Kansas alternative remedies doctrine, does Kansas law—including but not limited to Flenker v. Willamette Industries, Inc., 266 Kan. 198, 967 P.2d 295 (1998); Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988); Riddle v. Wal-Mart Stores, Inc., 27 Kan. App. 2d 79, 998 P.2d 114 (2000); and Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981)—recognize an action in tort based on an employer's discharge of an employee in retaliation for the employee's exercise of rights under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 et seq. (2000)? In other words, will the Kansas Supreme Court extend the public policy exception to the at-will employment doctrine to authorize a state tort action retaliation for filing a FELA claim?

2. If the answer to (1) is yes, under the Kansas doctrine of alternative remedies—as articulated in Flenker, 266 Kan. 198; Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988); or elsewhere—do the remedies available in the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., (2000) preclude an action in tort based on an employer's discharge of an employee in retaliation for the employee's exercise of rights under FELA? In other words, are an employee's rights adequately protected by the RLA, the statute that governs the employment relationships in the railway industry?

We answer the first question "yes" and the second question "no."

Plaintiff Larry D. Hysten was employed for 22 years by defendant Burlington Northern & Santa Fe Railway Company (Burlington Northern). Hysten began experiencing severe lower back pain. Although he was unsure of the cause, Burlington Northern wanted a commitment from him on whether the pain was work-related. Hysten eventually declared his injury to be work-related "to preserve his FELA rights." He was then disciplined for violating company regulations by, "among other things, failing to promptly report a work-related injury." Burlington Northern management eventually determined that Hysten should be terminated for violating the company's rules governing the reporting of work-related injuries.

Hysten filed suit in federal district court; his complaint included both federal and state law causes of action. The court granted Burlington Northern's motion for summary judgment on the federal law claims and declined to exercise supplemental jurisdiction over the state law claims.

Four months later, as a result of an RLA arbitration under Hysten's collective bargaining agreement, Burlington Northern reinstated Hysten with full retirement, seniority, and health benefits. Hysten was not awarded back pay, although that remedy generally is available under the RLA.

Hysten then brought this case in state district court, alleging "Burlington's termination in retaliation for . . . filing a claim under FELA constituted a public policy tort under Kansas Law." Burlington Northern removed the case to federal court and filed a motion to dismiss.

The federal district judge held that the mere fact a collective bargaining agreement governed Hysten's contractual relationship with his employer did not eliminate his Kansas tort claim. Defendant had argued the existence of the agreement meant the RLA preempted any retaliation claim. In the judge's view, any analysis of Burlington Northern's duty to Hysten would require interpretation of the agreement. The district court examined the United States Supreme Court's decision in Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 256, 129 L. Ed. 2d 203, 114 S. Ct. 2239 (1994), and the Tenth Circuit's decisions in Garley v. Sandia Corp., 236 F.3d 1200 (10th Cir. 2001), and Jarvis v. Nobel/Sysco Food Services Co., 985 F.2d 1419 (10th Cir. 1993), concluding:

"`So long as the state law cause of action is concerned not with the employer's contractual rights to discharge the employee, but rather with its motives in exercising that right, the [collective bargaining agreement] is not relevant and preemption does not apply.' . . .

"In this matter, plaintiff does not argue that defendant violated his rights under the [collective bargaining agreement] or that defendant failed to perform its obligations under the [collective bargaining agreement]. Plaintiff and defendant complied with the grievance procedure delineated in the [collective bargaining agreement] and plaintiff was ultimately reinstated to his position. Plaintiff merely argues that under Kansas law he is entitled to additional remedies." Hysten v. Burlington Northern Santa Fe Ry. Co., 196 F. Supp. 2d 1162, 1166 (quoting Jarvis, 985 F.2d at 1427).

In the end, however, the district court granted Burlington Northern's motion to dismiss, holding Hysten had failed to state a claim under Kansas law. The court summarized its conclusion:

"Plaintiff does not complain of the timeliness, impartiality, affordability or fairness of the process which the RLA establishes. Nor does he explain why the remedies available under the RLA are inadequate to advance any articulated interest of the State of Kansas in prohibiting retaliation for the filing of FELA claims. Plaintiff simply asks the Court to hold that a remedy which provides something less than the full array of actual and punitive damages to an aggrieved employee is inadequate as a matter of law. The Court does not believe that the Kansas courts would agree with this proposition, or that the public policy of the State of Kansas requires that the exceptions to the doctrine of employment at will be extended to create an actionable retaliation claim under FELA." Hysten, 196 F. Supp. 2d at 1169-70.

The parties appear to agree that the district court relied on alternative rationales for its decision: First, Kansas would not recognize a tort for wrongful discharge in retaliation for exercise of FELA rights; second, the adequate alternate remedy of the RLA would foreclose any such claim that existed.

Hysten's appeal of the district court dismissal to the Tenth Circuit has now generated the certified questions before us. Our review of these questions is unlimited. Danisco Ingredients USA, Inc. v. Kansas City Power & Light Co., 267 Kan. 760, 765, 986 P.2d 377 (1999). The answer to a certified question must be based on our precedent, not on federal rulings interpreting Kansas law. Flenker, 266 Kan. at 201-02.

Recognition of a Wrongful Discharge Retaliation Claim for Exercise of FELA Rights

"Kansas employment law is grounded in the doctrine of employment-at-will. In the absence of an express or implied contract of duration or where recognized public policy concerns are raised, employment is terminable at the will of either party." Riddle, 27 Kan. App. 2d 79, Syl. ¶ 2.

So far, Kansas courts have departed from the at-will doctrine and recognized a common-law tort for wrongful discharge in violation of public policy in two types of cases, those in which a terminated employee has acted as a whistleblower and those in which the employee has filed a workers compensation claim. See Palmer, 242 Kan. at 900 (whistleblowing); Murphy, 6 Kan. App. 2d at 495-97 (workers compensation).

The parties to this case begin their arguments with contrasting characterizations of these earlier at-will exceptions. The plaintiff uses a broad brush, asserting these two categories of cases demonstrate the existence of an expandable public policy exception to the Kansas at-will doctrine. The defendant uses a brush picked nearly clean of bristles, reading our two earlier exceptions far too narrowly and specifically to support extension to this case. In reality, the question of which of the parties' dueling characterizations is more accurate matters little. What does matter is the absence of a dispute over whether we have previously recognized the exception Hysten seeks to invoke. We have not.

"`Our recognition of such causes of action is limited to wrongful discharge in violation of state public policy clearly declared by the legislature or by the courts.'" Flenker, 266 Kan. at 204 (quoting Coleman, 242 Kan. 804, Syl. ¶ 4). Thus our first step is an examination of Kansas public policy.

"The public policy of a state is the law of that state as found in its constitution, its statutory enactments, and its judicial decisions." Petty v. City of El Dorado, 270 Kan. 847, 854, 19 P.3d 167 (2001). "Before courts are justified in declaring the existence of public policy, the policy should be so thoroughly established as a state of public mind so united and so definite and fixed that its existence is not subject to any substantial doubt." Riddle, 27 Kan. App. 2d 79, Syl. ¶ 3.

Hysten urges us to draw an analogy to Murphy, 6 Kan. App. 2d 488, in which our Court of Appeals created an exception to the employment-at-will doctrine and allowed a wrongful discharge lawsuit when the plaintiff employee alleged he was discharged for filing a claim under the Kansas Workers Compensation Act. The court said:

"The Supreme Court of Indiana, in Frampton v. Central Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973), supplied the first judicial recognition that discharge of an employee in retaliation for filing a workmen's compensation claim is actionable at law and may support an award of both actual and punitive damages. Commenting on the case, Vol. 2A Larson's Workmen's Compensation Law § 68.36, p. 68

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