Koopman v. Water Dist. No. 1 of Johnson County, Kan., 91-3165

• Decision Date: 10 August 1992
• Docket Number: No. 91-3165,91-3165
• Citation: 972 F.2d 1160
• Parties: Vincent KOOPMAN, Plaintiff-Appellant, v. WATER DISTRICT NO. 1 OF JOHNSON COUNTY, KANSAS, R.L. Chandler, Ralph G. Wyss and Roger Fairbanks, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1160

972 F.2d 1160

Vincent KOOPMAN, Plaintiff-Appellant, v. WATER DISTRICT NO. 1 OF JOHNSON COUNTY, KANSAS, R.L Chandler, Ralph G. Wyss and Roger Fairbanks Defendants-Appellees.

No. 91-3165.

United States Court of Appeals Tenth Circuit.

Aug. 10, 1992.

Stephen J. Dennis of Niewald, Waldeck & Brown, Overland Park, Kan., for plaintiff-appellant.

Wilson E. Speer and Daniel M. Zimmerman of Speer, Austin, Holliday & Ruddick, Olathe, Kan., for defendants-appellees.

Before BALDOCK and BARRETT, Circuit Judges, and PARKER, District Judge. ^*

PARKER, District Judge.

Appellant Vincent Koopman appeals the district court's March 27, 1992 Memorandum and Order granting defendants' motion for summary judgment on all three of appellant's wrongful discharge claims,

                thereby dismissing the case.   Appellant sued appellees for wrongful discharge from his position as "Utility Man II" with Water District No. 1 of Johnson County.   On appeal, appellant contends (1) under a pendent state law tort theory, that he was discharged from his employment in retaliation for his anticipated workman's compensation claim and (2) that this discharge was in violation of his Fourteenth Amendment due process rights. 1  We exercise jurisdiction under 28 U.S.C. § 1291 and affirm in part and reverse in part
                

BACKGROUND

Appellant began working for the Water District on October 13, 1982. Before appellant was hired, at the Water District's request a Dr. Owens performed a medical examination which indicated appellant was healthy. Dr. Owens interpreted an x-ray of appellant's back to be normal. The Water District then employed appellant as a "Utility Man II" which entailed two basic responsibilities: 1) clean up crew work which involved landscaping, sodding, yard repair and street repair; and 2) tapping which involved installation and inspection of new house and business service lines. In performing the tapping aspect of the job, appellant had to physically move concrete meter pits which required heavy lifting, bending over, and using his arms above shoulder level.

In 1986, appellant complained to his foreperson, Ralph Taylor, and the assistant foreperson, Kenny Moore, that he believed lifting the meter pits by himself was unsafe. Because of appellant's abnormally high absenteeism, the Water District, in late 1986, ordered appellant to undergo drug testing and to submit to a medical examination. Dr. Carolyn Parsons, a physician chosen by the Water District, examined appellant on October 27, 1986, and concluded that appellant had a congenital developmental abnormality of his spine (spondylolysis at L-5 bilaterally) which put him at high risk of injury if he were to continue performing the heavy work. ² Dr. Parsons advised appellant that he should not lift anything over 25 pounds, and that he should not do any work requiring repetitive bending or stooping or the use of his arms above shoulder level.

By letter dated November 5, 1986 to the Water District, Dr. Parsons reported the results of her examination stating that appellant had chronic back problems resulting from a motor vehicle accident in December 1984. Her report mentioned the x-ray evidence of the congenital developmental defect, spondylolysis. Dr. Parsons' report did not say, or even imply, that appellant had told Dr. Parsons appellant believed he had injured his back at work. Dr. Parsons submitted a second report, dated November 21, 1986, to the Water District which warned that a "company which allows Mr. Koopman to do heavy lifting, etc. is putting him at high risk of injury, and is putting itself at high risk of liability."

On November 24, 1991, the Water District delivered to appellant a letter dated November 21, 1986 written by appellee Chandler, then general manager of the Water District, which informed appellant that his employment would be terminated as of November 26, 1986. ³ In response, appellant sent a letter dated November 28, 1986 In a letter dated February 10, 1987, Johnson advised appellant that his termination had been reaffirmed. In July of 1987, plaintiff gave notice of a claim for workers' compensation.

                to appellee Chandler expressing appellant's shock at the decision to terminate him and requesting "a chance to meet with you or the Board of Directors in person to review your decision."   Thereafter, on December 9, appellant met with appellee Chandler and Byron Johnson, who at the time was director of personnel safety and training.   Appellant was told there were no vacant positions for workers with his physical limitations, i.e., the limitations on work activity imposed by Dr. Parsons.   Appellant stated that he disagreed with the assertion that he had physical limitations and said that he would seek an examination by a second doctor. 4  Later, in a January 26, 1987 letter to the Water District Board, appellant formally requested "that the Board of Water District No. 1 review the decision of R.L. Chandler terminating my employment effective November 26, 1986."   This request resulted in Byron Johnson, then Water District personnel director, Ron Gullickson, a Water District board member, and Jim Meitl, the new Water District general manager, discussing appellant's case via telephone and reaffirming the termination decision. 5
                

DISCUSSION

In considering a district court's order granting a motion for summary judgment, an appellate court is required to review the case de novo. Conaway v. Smith, 853 F.2d 789, 792 (10th Cir.1988). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986).

1. Appellant's Pendent State Law Claim--Retaliatory Discharge

In support of his claim for retaliatory discharge, appellant relies on two cases which modified the Kansas employment-at-will doctrine. In Murphy v. Topeka--Shawnee County of Labor Service, 6 Kan.App.2d 488, 630 P.2d 186 (1981), the Kansas Court of Appeals held that a cause of action lies when an employer discharges an employee-at-will in retaliation for filing a workers' compensation claim. More recently, in Chrisman v. Philips Industries, Inc., 242 Kan. 772, 751 P.2d 140 (1988), the Kansas Supreme Court extended the ruling in Murphy to cover a situation where an employer discharges an employee in anticipation of the employee filing a workers' compensation claim, if the employee has expressed an intent to do so. In Chrisman, the plaintiff slipped on the job, twisted his back and was hospitalized. The next morning, he called one of his superiors, Yarges, from the hospital and told him that he had slipped on some sheet metal. Yarges asked plaintiff not to file a workers' compensation claim and instead to use his personal insurance. Plaintiff testified that he responded, "If that's what it took to protect my job, fine." Plaintiff did submit a claim to his personal insurance company. The employer terminated the plaintiff two days after he returned to work. On these facts, which were viewed in a light most favorable to the plaintiff, the Supreme Court of Kansas held that summary judgment in favor of the defendant on plaintiff's retaliatory discharge claim was not appropriate. Specifically, Chrisman held that a cause of action exists "where the employee claims he or she was injured on the job, the employer knew that the employee intended to file a workers' compensation claim, and in retaliation therefor discharged the employee." 751 P.2d at 142.

However, Chrisman is not helpful to the appellant in this case because appellant did not tell his supervisors that he injured himself on the job, and there is no evidence that anyone at the Water District knew that he had been injured on the job or that he intended to file a workers' compensation claim. Appellant argues that there is evidence that appellees knew of his back problems--in fact it was stated that his was a "medical termination" based on Dr. Parson's assessment. Aplt.App. at 119. Appellee Chandler testified that he was aware appellant was having back problems since the previous October. Aplt.App. at 102. Johnson stated that he had a nurse make a medical appointment for appellant because appellant was unable to lift. Aplt.App. at 109. Chandler also testified that appellees knew of appellant's absences and appellant's complaints about his back problems. Aplt.App. at 102. The main evidence upon which appellant relies to show that his back problems were work related are the two medical examinations--the one prior to beginning employment in October of 1982 which indicated no back problems and the one conducted by Dr. Parsons just prior to appellant's termination in 1986 which reflected a history of chronic back problems resulting from a 1984 vehicle accident and an abnormal low back x-ray. To support his contention that he was fired in anticipation of filing a workers' compensation claim appellant points to the letter from Dr. Parsons which states that the company would be "subject to liability" if plaintiff were to continue lifting items over 25 pounds, Aplt.App. at 66, and Chandler's testimony that the Water District would be subject to liability if appellant injured his back. Aplt.App. at 105. We are not convinced by these arguments because none of this evidence suggests the appellees knew that appellant had actually injured his back on the job. To the contrary, Dr. Parsons informed the Water District that appellant injured his back in a 1984 vehicle accident and had a "congenital developmental abnormality," a condition that was not earlier detected. ⁶

Moreover, in Rowland v. Val-Agri, Inc., 13 Kan.App.2d 149, 766 P.2d 819 (1988), the Kansas Court of Appeals ruled that an employee, who because of his physical...