Lumry v. State, No. 108,425.

CourtCourt of Appeals of Kansas
Writing for the CourtARNOLD–BURGER
Citation307 P.3d 232,49 Kan.App. 276
PartiesKeith LUMRY, appellant, v. STATE of Kansas, Kansas Bureau of Investigation, Clint Hawkins, Kelly Ralston, and Robert Blecha, Appellees.
Docket NumberNo. 108,425.
Decision Date16 August 2013

49 Kan.App. 276
307 P.3d 232

Keith LUMRY, appellant,
v.
STATE of Kansas, Kansas Bureau of Investigation, Clint Hawkins, Kelly Ralston, and Robert Blecha, Appellees.

No. 108,425.

Court of Appeals of Kansas.

Aug. 16, 2013.


[307 P.3d 235]



Syllabus by the court

1. Based on the plain language of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 (2006)et seq., public officials may be held liable in their individual capacities for violating the Act if they are acting in the interest of the agency and meet the definition of an employer.

2. When the facts are undisputed, whether a party is an employer within the meaning of the FLSA is a question of law.

3. To determine whether a person meets the definition of an employer or an employee under the FLSA, courts apply the economic reality test. The economic reality test includes inquiries into whether the alleged employer (1) has the power to hire and fire employees, (2) supervises and controls employee work schedules or conditions of employment, (3) determines the rate and method of payment, and (4) maintains employment records. The test is based on the totality of the circumstances, and no one factor alone is dispositive.

4. An individual must possess more than just managerial responsibilities to be considered an employer under the FLSA. The Act envisions someone with a corporate role beyond mere managerial responsibilities.

[307 P.3d 236]

5. Either an oral or written complaint can be sufficient to fall within the scope of the antiretaliation provision of the FLSA. A complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for protection under the statute.

6. The Kansas Minimum Wage and Maximum Hours Law (KMWMHL), K.S.A. 44–1201 et seq., explicitly excludes from its definition of employer any employer who is subject to the provisions of the FLSA even if the employer is exempt from some provisions of the FLSA.

7. A rule of liberal construction applies when judging whether a claim has been stated. A pleader is permitted to shift the theory of his or her case as the facts develop, as long as he or she has fairly informed the opponent of the transaction or operative facts involved in the litigation. The determination of whether a party's claim is a late shift in the thrust of the case which prejudices the opponent is left to the sound discretion of the trial court.

8. Under the alternative remedies doctrine, in order to find that a claim for retaliatory discharge for violation of the FLSA exists under Kansas common law, we must find not only that a public policy exists to support such an action, but also that a claimant has no adequate alternative remedy under state or federal statutory law.


Alan V. Johnson, of Sloan, Eisenbarth, Glassman, McEntire & Jarobe, L.L.C., of Topeka, for appellant.

Teresa L. Watson and David R. Cooper, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellees.


Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.

ARNOLD–BURGER, J.

Keith Lumry, a former employee of the Kansas Bureau of Investigation (KBI), sued the KBI as well as three of his former supervisors in their individual capacities for violating his rights under the Fair Labor Standards Act (FLSA) and for retaliatory discharge in violation of the Kansas Minimum Wage and Maximum Hours Law (KMWMHL). Because the undisputed facts lead us to the conclusion that two of the supervisors named in this action do not meet the definition of “employer” under the FLSA, his claims against them necessarily fail. As to the remaining supervisor, who does fit the definition of employer under the FLSA, the undisputed facts fail to establish that Lumry made an unequivocal claim under the FLSA for which the supervisor may have retaliated. Finally, Lumry's claim under the KMWMHL fails because the KMWMHL does not apply to any employer that is subject to the FLSA and the KBI is subject to the FLSA. Accordingly, we affirm the district court's grant of summary judgment in favor of the defendants.

Factual and Procedural History

Lumry began working as a Special Agent for the KBI in October 2001. He was stationed in southwest Kansas and worked on narcotics investigations from 2002 through 2008. During this time, Lumry's direct supervisor was Special Agent in Charge Kelly Ralston.

In January 2008, Lumry joined the newly formed Southwest Kansas Drug Task Force (Task Force). While working on the Task Force, Lumry's direct supervisor was Senior Special Agent Clint Hawkins. As manager of the Task Force, Hawkins reported to Ralston. Ralston reported to KBI Assistant Director Larry Thomas. Throughout Lumry's employment with the KBI, Robert Blecha was the Director of the KBI. As the Director, Blecha had the authority to place Lumry on administrative leave and to terminate his employment.

When Lumry began working for the KBI, he was provided training on and copies of the agency's policies and procedures. He received the KBI's policy on how to fill out timesheets, and he understood that the policy required that “ ‘timesheets will accurately reflect time worked, leave taken and earning codes charged.’ ” The policy further provided that “ ‘[e]mployees are responsible for continually

[307 P.3d 237]

monitoring the accuracy of the information on the payroll “stub,” including compensation, accrued leave balances, deductions, and leave accrual rates.’ ”

While working for the KBI, Lumry submitted his timesheets electronically to Ralston through e-mail. Lumry placed an electronic signature on the timesheets attesting to their accuracy.

Lumry understood that the KBI policy regarding overtime for agents was to either pay overtime compensation or to provide compensatory time off at a rate of one and one-half times the base hourly rate for each hour worked in excess of 80 hours in a 2–week pay period. Lumry testified, however, that he routinely worked overtime without being compensated for it and that he understood it was expected of him. Hawkins testified that it was common for a Special Agent to work 80 hours in a week.

Lumry stated that he “ ‘negotiated’ ” his overtime with his former supervisor, Ralston, every 2 or 3 months and was often encouraged not to report his overtime. It is undisputed that shortly before joining the Task Force, Lumry told his new supervisor, Hawkins, that he would “work an extra 5 hours a week and give you that extra time; but I'm not going to work 10 and 20 hours a week anymore, or more, of unclaimed overtime.”

One month into the Task Force's work, Hawkins first became aware of a concern regarding Lumry's timesheets when Lumry told Hawkins that he was already over on hours for the 2–week period. This raised a red flag in Hawkins' mind because he had a general idea of how many hours Lumry should have worked. Hawkins asked Ralston for Lumry's timesheet, which Ralston provided.

In order to evaluate the accuracy of Lumry's timesheets, Hawkins asked Special Agent Shane Finley and Special Agent Jason Diaz to log all of their work activities so he could compare their logs to Lumry's timesheets. Hawkins used the logs to verify entries on Lumry's timesheets for time claimed on cases involving Finley or Diaz.

During this investigation, Hawkins discovered that Lumry was claiming hours for operations involving other agents when the other agents were not present and not claiming time. Hawkins checked to make sure that Lumry had not accidentally written the wrong case number on his timesheet since two case targets were located near each other, but Hawkins determined that he had not.

On Hawkins' review of Lumry's timesheets, he noted that Lumry claimed time for operations where Hawkins was personally present but Lumry was not and that he claimed time for operations where both he and Hawkins were present, but that Lumry claimed a larger amount of time than the operation actually lasted. Hawkins noted that some of Lumry's timesheet entries were incorrect and were false based on Hawkins' personal knowledge from having been there at the time.

Hawkins discovered that Lumry's timesheet for February 11, 2008, claimed time on a “dead” case that agents were no longer working on, so Hawkins asked Lumry to log his activities for that week. Lumry's log did not mention time on the dead case that he claimed on his timesheet. Hawkins further noted that there were other discrepancies between Lumry's timesheet and his activity log.

On February 27, 2008, after concluding that Lumry's timesheets were falsified, Hawkins sent his supervisor, Ralston, an e-mail explaining his observations. Ralston was concerned that if Lumry had falsified his timesheets it would affect his credibility as a government witness. Prosecutors are required to disclose evidence about the credibility of government witnesses, including law enforcement officers, to defense counsel in criminal prosecutions, and such information may jeopardize those prosecutions. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Because of the Giglio issue, and his concern about the possibility of false writings, Ralston determined Hawkins' report about Lumry needed to be moved up the chain of command to the Assistant Director Thomas.

On February 28, 2008, Director Blecha ordered an administrative inquiry regarding the allegations about Lumry's timesheets and

[307 P.3d 238]

assigned Special Agent in Charge Randy Ewy of the Wichita Region to conduct the inquiry.

Ewy interviewed Lumry and wrote a report that stated that Lumry told him that he did not falsify or “ ‘pad’ ” his timesheets and that Lumry also stated that he works more hours than he claims and that he often “ ‘shaves' ” hours from his timesheets. Ewy further noted that it was difficult for him to assess the root causes of the concerns and noted that a polygraph might be a viable additional option if deemed appropriate. Ewy testified that he did not...

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8 practice notes
  • Lumry v. State, No. 108,425
    • United States
    • United States State Supreme Court of Kansas
    • 16 Diciembre 2016
    ...court's. One panel member dissented, in part, and would have remanded some of the claims for trial. Lumry v. State , 49 Kan.App.2d 276, 307 P.3d 232 (2013). Both sides seek our review.The parties ask: (1) Whether KBI Director Robert Blecha is an "employer" who can be individually liable for......
  • Craig v. Fedex Ground Package Sys., Inc., 108,526.
    • United States
    • United States State Supreme Court of Kansas
    • 3 Octubre 2014
    ...individual is an employee or independent contractor under the FLSA. Johnson, 371 F.3d at 729 ; see Lumry v. State, 49 Kan.App.2d 276, 286, 307 P.3d 232 (2013). “The ‘economic realties' test seeks to look past technical, common-law concepts of the master and servant relationship to determine......
  • Craig v. Fedex Ground Package Sys., Inc., No. 108,526.
    • United States
    • United States State Supreme Court of Kansas
    • 3 Octubre 2014
    ...individual is an employee or independent contractor under the FLSA. Johnson, 371 F.3d at 729; see Lumry v. State, 49 Kan.App.2d 276, 286, 307 P.3d 232 (2013). “The ‘economic realties' test seeks to look past technical, common-law concepts of the master and servant relationship to determine ......
  • Ball v. Credit Bureau Servs., Inc., 111,144.
    • United States
    • Court of Appeals of Kansas
    • 26 Junio 2015
    ...Ass'n, 272 Kan. 546, 554, 35 P.3d 892 (2001) (retaliation for filing workers compensation claim); Lumry v. State, 49 Kan.App.2d 276, 302, 307 P.3d 232 (2013) (elements of “state retaliatory discharge claim”), rev. granted June 20, 2014.On summary judgment, CBS submitted that it terminated B......
  • Request a trial to view additional results
8 cases
  • Lumry v. State, No. 108,425
    • United States
    • United States State Supreme Court of Kansas
    • 16 Diciembre 2016
    ...court's. One panel member dissented, in part, and would have remanded some of the claims for trial. Lumry v. State , 49 Kan.App.2d 276, 307 P.3d 232 (2013). Both sides seek our review.The parties ask: (1) Whether KBI Director Robert Blecha is an "employer" who can be individually liable for......
  • Craig v. Fedex Ground Package Sys., Inc., 108,526.
    • United States
    • United States State Supreme Court of Kansas
    • 3 Octubre 2014
    ...individual is an employee or independent contractor under the FLSA. Johnson, 371 F.3d at 729 ; see Lumry v. State, 49 Kan.App.2d 276, 286, 307 P.3d 232 (2013). “The ‘economic realties' test seeks to look past technical, common-law concepts of the master and servant relationship to determine......
  • Craig v. Fedex Ground Package Sys., Inc., No. 108,526.
    • United States
    • United States State Supreme Court of Kansas
    • 3 Octubre 2014
    ...individual is an employee or independent contractor under the FLSA. Johnson, 371 F.3d at 729; see Lumry v. State, 49 Kan.App.2d 276, 286, 307 P.3d 232 (2013). “The ‘economic realties' test seeks to look past technical, common-law concepts of the master and servant relationship to determine ......
  • Ball v. Credit Bureau Servs., Inc., 111,144.
    • United States
    • Court of Appeals of Kansas
    • 26 Junio 2015
    ...Ass'n, 272 Kan. 546, 554, 35 P.3d 892 (2001) (retaliation for filing workers compensation claim); Lumry v. State, 49 Kan.App.2d 276, 302, 307 P.3d 232 (2013) (elements of “state retaliatory discharge claim”), rev. granted June 20, 2014.On summary judgment, CBS submitted that it terminated B......
  • Request a trial to view additional results

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