Kolar v. R & P, Inc.

• Decision Date: 21 April 2009
• Docket Number: No. S-08-0116.,S-08-0116.
• Citation: 205 P.3d 1041,2009 WY 56
• Parties: James KOLAR, Appellant (Plaintiff), v. R & P, INC., Appellee (Defendant).
• Court: Wyoming Supreme Court

205 P.3d 1041

2009 WY 56

James KOLAR, Appellant (Plaintiff), v. R & P, INC., Appellee (Defendant).

No. S-08-0116.

Supreme Court of Wyoming.

April 21, 2009.

Representing Appellant: Richard J. Mulligan of Mulligan Law Office, and Heather Noble, Jackson, Wyoming. Argument by Ms. Noble.

Representing Appellee: Stefan J. Fodor of Fodor Law Office, P.C., Jackson, Wyoming.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] Appellant, James Stanley Kolar (Kolar), was employed by Appellee, R & P, Inc. (R & P), from 1997 until 2004. Kolar experienced some health problems and underwent several surgeries and their associated recuperative periods during that time. Thereafter, Kolar was fired from his job. According to R & P, that termination was premised on his poor performance as an assistant manager. Kolar filed a claim with the Department of Employment Fair Employment Program (DEFEP) alleging that his discharge was based on R & P's perception that he was disabled. DEFEP attempted to conciliate Kolar's claim and when that failed to produce a result, his case was referred to the Equal Employment Opportunity Commission (EEOC). On July 16, 2006, the EEOC issued a Notice of Right to Sue, and informed Kolar that it was ending its processing of the claim. Kolar then filed the instant lawsuit in Teton County on September 22, 2006. The district court declined to address Kolar's claim associated with his asserted disability on the basis that he had failed to exhaust his administrative remedies. Kolar appealed from that order. We will affirm.

ISSUES

[¶ 2] Kolar presents these issues:

—When an employee sued his employer for wrongful discharge in violation of public policy, did the district court err in dismissing that claim on the ground that another remedy existed, even though the employee had filed a complaint with the State of Wyoming's Fair Employment Program, and that agency had determined that the employer had engaged in discrimination on the basis of disability, had attempted unsuccessfully to mediate settlement of the complaint and then had dismissed the matter for failure to conciliate?

—Does an alternate remedy exist to protect against job discrimination on the basis of disability by employers with less than 15 employees, when state law bars such discrimination by those employers, but the only remedy provided is an administrative process where the Wyoming Fair Employment Program investigates and then attempts to mediate a settlement, so that an employer can effectively bar the discharged employee from recovering anything through the administrative process simply by refusing to settle?

R & P queries:

Was the district court correct in dismissing employee's claim for tort in violation of discharge against public policy by finding that another remedy existed, thus barring the claim in tort?

Does the Wyoming Fair Employment Practices Act provide a sufficient remedy to protect employees from job discrimination such that the tort of wrongful termination in violation of public policy is not available?

FACTS AND PROCEEDINGS

[¶ 3] Kolar worked for R & P (which is the corporate name of the Ace Hardware Store in Jackson) from August of 1997 until September 25, 2004. At that time he was terminated from his employment for poor performance. He was given five weeks severance pay in connection with his termination. However, in the years preceding his firing, Kolar had experienced a series of physical problems which required surgeries on both of his ankles and on his spine as the result of a condition known as "connective tissue disorder." Most of the time he was away from work he was on either sick leave or vacation leave, but near the end of his employment he asked to take time off without pay because he had no remaining sick or vacation time left.

[¶ 4] In a document entitled Charge of Discrimination which was received by DEFEP on December 22, 2004, Kolar asserted that his employer regarded him as disabled and that he was denied a reasonable accommodation. That charge was filed pursuant to the Wyoming Fair Employment Practices Act of 1965. Under the provisions of Wyo. Stat. Ann. § 27-9-105(a)(i) (LexisNexis 2007), "[i]t is a discriminatory or unfair employment practice ... [f]or an employer to refuse to hire, to discharge, to promote or demote, or to discriminate in matters of compensation or the terms, conditions or privileges of employment against, a qualified disabled person...." Wyo. Stat. Ann. § 27-9-105(d) provides: "As used in this section `qualified disabled person' means a disabled person who is capable of performing a particular job, or who would be capable of performing a particular job with reasonable accommodation to his disability." That Act defines "employer" as "... the state of Wyoming or any political subdivision or board, commission, department, institution or school district thereof, and every other person employing two (2) or more employees within the state; but it does not mean religious organizations or associations." Wyo. Stat. Ann. § 27-9-102(b)(LexisNexis 2007). R & P employed 12 persons.¹

[¶ 5] Of particular importance in this case are the provisions of Wyo. Stat. Ann. § 27-9-106:

(a) Any person claiming to be aggrieved by a discriminatory or unfair employment practice may, personally or through his attorney, make, sign and file with the department within six (6) months of the alleged violation a verified, written complaint in duplicate which shall state the name and address of the person, employer, employment agency or labor organization alleged to have committed the discriminatory or unfair employment practice, and which shall set forth the particulars of the claim and contain other information as shall be required by the department. The department shall investigate to determine the validity of the charges and issue a determination thereupon.

(b) through (j) Repealed by Laws 2001, ch. 162, § 2.

(k) If the employer, employment agency, labor organization or employee is aggrieved by the department's determination, the aggrieved party may request a fair hearing. The fair hearing shall be conducted pursuant to the Wyoming Administrative Procedure Act.

(m) The department shall issue an order within fourteen (14) days of the decision being rendered, requiring the employer, employment agency or labor organization to comply with the hearing officer's decision. If the employer, employment agency or labor organization does not timely appeal or comply with the order within thirty (30) days, the department may petition the appropriate district court for enforcement of the order.

(n) Where the hearing officer determines that the employer, employment agency or labor organization has engaged in any discriminatory or unfair employment practice as defined in this chapter, the hearing officer's decision may:

(i) Require the employer, employment agency or labor organization to cease and desist from the discriminatory or unfair practice;

(ii) Require remedial action which may include hiring, retaining, reinstating or upgrading of employees, referring of applications for employment by a respondent employment agency or the restoration to membership by a respondent labor organization;

(iii) Require the posting of notices, the making of reports as to the manner of compliance and any other relief that the hearing officer deems necessary and appropriate to make the complainant whole; or

(iv) Require the employer, employment agency or labor organization to pay backpay or front pay. [Emphasis added.]

[¶ 6] The proceedings before the DEFEP were conducted in accordance with the Rules and Regulations of the DEFEP. 3 Weil's Code of Wyoming Rules, 025 140 003-1 through 003-3 (July 2006). Kolar's charge contained these details:

1. I am a member of the protected groups, disabled and regarded as disabled.

2. My disability substantially limits a major life activity.

3. I am otherwise qualified for the job.

4. My employer failed to make a reasonable accommodation for my disability when such accommodation would not have placed an undue hardship on my employer.

a) I was employed as an assistant manager for my employer.

b) On September 14, 2004 I asked the employer's owner if I could have temporary light duty.

c) My employer gave me temporary light duty work for the time period of September 15-18, 2004.

5. Despite my satisfactory job performance, I was discharged.

a) On September 23, 2004 my employer discharged me for having, "too many health problems."

b) On September 23, 2004, my employer's owner made the statement, "this job is killing you."

6. After my discharge, the job remained available or was filled by someone not of my protected groups.

Attached to the Charge of Discrimination was Kolar's affidavit which set out information very similar to that quoted immediately above.

[¶ 7] In a document entitled Response to Charge of Discrimination and Employer's Position Statement dated January 11, 2005, R & P denied the gravamen of Kolar's complaint and contended that his termination was brought about by Kolar's "inability to perform one or more essential functions of his job, his inability to work with other managers and floor personnel, and his inability to show up for work."

[¶ 8] In a document entitled Complainant's Response to Respondent's Response to Charge and Employer's Position Statement, dated January 24, 2005, Kolar denied the assertions made in R & P's response and iterated his previous allegation of discrimination based on his employer's perception of him as being disabled.

[¶ 9] In an eleven-page document entitled Determination, DEFEP addressed the merits of Kolar's charges in detail. Citing from 42 U.S.C. § 12111, DEFEP noted that a qualified person with a disability means: "An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."...