McCabe v. Johnson County, Bd. of County Com'rs

• Decision Date: 25 July 1980
• Docket Number: No. 51497,51497
• Parties: , 24 Fair Empl.Prac.Cas. (BNA) 478 Roxanne McCABE, Appellant, v. JOHNSON COUNTY, Kansas, BOARD OF COUNTY COMMISSIONERS, Appellee.
• Court: Kansas Court of Appeals

Page 780

615 P.2d 780

5 Kan.App.2d 232, 24 Fair Empl.Prac.Cas. (BNA) 478

Roxanne McCABE, Appellant, v. JOHNSON COUNTY, Kansas, BOARD OF COUNTY COMMISSIONERS, Appellee.

No. 51497.

Court of Appeals of Kansas.

July 25, 1980.

Review Denied Nov. 6, 1980.

Syllabus by the Court

1. As a part of the Kansas Acts Against Discrimination, K.S.A.1979 Supp. 44-1009(a )(4) protects an employee against discharge, expulsion, or other discrimination for two types of activities: (1) "opposition" to practices forbidden by the Acts, and (2) "participation" in formal proceedings under the Acts.

2. The "opposition" clause of K.S.A.1979 Supp. 44-1009(a )(4) protects an employee against discharge, expulsion, or other discrimination for opposition activities outside formal proceedings where the employee has a good faith, reasonable belief that the practices opposed are discriminatory, even if it is subsequently determined they were not.

3. An employee loses the protection of the "opposition" clause by engaging in activities which are excessive and unreasonable under the particular circumstances involved. The determination is made on a case-by-case basis.

4. In a civil rights case in which the employee was discharged under circumstances set forth in the opinion, it is held the trial court erred in its interpretation of the "opposition" clause of K.S.A.1979 Supp. 44-1009(a )(4) and in granting summary judgment to the employer.

Reid Stacey, Asst. Atty. Gen., and Robert T. Stephan, Atty. Gen., for appellant.

James W. Bouska, Asst. County Counselor, and Lyndus A. Henry, County Counselor, Olathe, for appellee.

Before MEYER, P. J., and REES and PARKS, JJ.

REES, Judge:

This is a civil rights case. Roxanne McCabe appeals from a judgment of the district court which set aside an order of the Kansas Commission on Civil Rights (KCCR) and dismissed her complaint against the Johnson County Board of County Commissioners (Board). We reverse.

In 1973, McCabe was hired as Johnson County Manpower Director at a salary of $696 per month. Her duties were to administer programs under the federal Economic Opportunity Act, Emergency Employment Act, and later, the Comprehensive Employment and Training Act. Although these programs were federally funded, they were sponsored by the County, which hired personnel and set salaries. McCabe's salary was soon raised to $865 per month. In a budget request prepared by McCabe and submitted to the Board in July, 1974, her salary was set at $963 per month. Effective August 5, 1974, the Board increased her salary to that level.

Notwithstanding these increases, McCabe felt her salary was disproportionately low compared to other department heads. She felt this was primarily because she was female. In early October, 1974, McCabe asked the Board to reexamine her salary and that of three other manpower program administrators working under her. The Board agreed and asked the personnel director to conduct a study. At a meeting on October 10, 1974, the personnel director reported that although her study had been limited, the present salaries for the manpower program were apparently within an acceptable range and recommended no change until a more comprehensive study could be conducted. There is evidence that McCabe responded with threats of resignation by herself and the administrative staff of the manpower program. There is evidence that the Board, in turn, instructed her personnel were not to be hired or fired until further notice.

That same afternoon, McCabe telephoned the Director of the KCCR; she indicated to him she wished to file a complaint against the Board on the ground of sexual discrimination in compensation. The Director informed her he would have an intake worker contact her to obtain details of the complaint. McCabe or some unidentified person apparently called a reporter for the Kansas City Star and informed him of her action. The reporter called at least two of the county commissioners seeking comment on reports that a complaint had been filed with the KCCR. The commissioners requested the county counselor to determine the validity of the reports. He contacted the KCCR which reported no formal complaint on file. This was communicated to the Board.

On the morning of October 11, 1974, one of the administrators resigned after firing a "counselor's aide." There is also evidence that rumors were circulating of disenchantment throughout the manpower department and that McCabe would air the problems directly to the press. A meeting was arranged between the Board and McCabe. Commissioner Franke testified that at the meeting the Board was concerned with the firing of an employee contrary to its instructions, the talk of "massive walkouts" by the remaining staff, and the need to "stabilize the situation" in the interest of the program's clients. McCabe testified only that the meeting included a discussion "of my action of having filed a complaint (with the KCCR)."

At the conclusion of the meeting, the Board removed McCabe as director of the manpower department and reassigned her to work with the personnel director. The Board then went to the manpower office with McCabe and informed the staff of its decision. McCabe and Sandra Adams, an administrative officer, testified Commissioner Davis told the staff that McCabe was removed because she had "filed" a complaint with the KCCR. Commissioner Davis denied this and further denied the complaint had been a consideration in the Board's decision to remove McCabe. He testified the Board was aware of threats of a complaint but had determined through the county counselor that none had been filed. Commissioner Franke testified to the same effect. On October 23, 1974, the Board voted to terminate McCabe from all duties effective October 31, 1974.

On January 23, 1975, McCabe filed a formal complaint with the KCCR charging discrimination in compensation and retaliation by demotion and discharge for her activities in opposing what she considered sex discrimination. On January 6, 1976, the KCCR investigating commissioner found no probable cause as to the charge of discrimination in compensation, but found that there was probable cause for the charge of retaliation. The matter was thereafter submitted to a hearing examiner. On July 16, 1977, the KCCR approved the hearing examiner's findings that McCabe had established retaliation in violation of the Act and awarded her $14,334 in back wages and $5,000 for pain, suffering and humiliation. After appealing to the district court, the Board filed a motion to dismiss McCabe's complaint. The court sustained the motion after reviewing the record before the KCCR, therefore treating the motion as one for summary judgment. See K.S.A. 60-212(b ).

On appeal, various procedural matters have been raised which have not been demonstrated to us to involve actual, material prejudice to the rights of either party and we therefore decline to address them. The essence of this case, and the basis of the trial court's decision, is the interpretation to be given K.S.A.1979 Supp. 44-1009(a )(4) which provides that it is an unlawful employment practice

"(4) For any employer, employment agency or labor organization to discharge, expel or otherwise discriminate against any person because he has opposed any practices or acts forbidden under this act or because he has filed a complaint, testified, or assisted in any proceeding under this act." (Emphasis added.)

A reading of this statute shows that it protects an employee against retaliation for two types of activities: (1) opposition to practices forbidden by the act, and (2) participation in formal proceedings under the act. We are here concerned only with the "opposition" clause. ¹ In dismissing McCabe's complaint, the trial court agreed with the Board that to be protected, "opposition" must be directed to acts or practices which are in fact discriminatory and since the KCCR found no probable cause as to McCabe's allegations of sexual discrimination in compensation, she was not protected even if the Board's demotion and discharge of her constituted retaliation for "opposition" activities. McCabe argues, and the KCCR found, that the statute should be interpreted to protect "opposition" to practices the employee reasonably and in good faith believes to be discriminatory, even though that belief is subsequently found to be incorrect.

K.S.A.1979 Supp. 44-1009(a )(4) is virtually identical to § 704(a) of Title VII of the Federal Civil Rights Act (42 U.S.C. § 2000e-3(a)). Federal court decisions under that act, although not controlling, are of persuasive precedential value. Harder v. Kansas Comm'n on Civil Rights, 225 Kan. 556, 592 P.2d 456 (1979).

Under the federal act it has consistently been held that the "participation" clause protects an employee against retaliation for charges of discrimination made by means of formal proceedings even though the charges are subsequently found to be without merit. This is in order to protect access to the Equal Employment Opportunity Commission (EEOC) and the employee's statutory right to file charges. See e. g. Pettway v. American Cast Iron Pipe Company, 411 F.2d 998 (5th Cir. 1969). A minor conflict has developed, however, in regard to the "opposition" clause.

The Board relies primarily on Equal Employment Op. Com'n v. C & D Sportswear Corp., 398 F.Supp. 300 (M.D.Ga.1975). In that case, the employee was suspended for fighting. In a conversation with a supervisor concerning the suspension, she accused the owner of the business of being a racist. She was discharged for this accusation. Thereafter she filed charges with the EEOC which found no merit to the charge of racism but found her informal accusation to the supervisor was protected by the "opposition" clause and therefore her discharge was prohibited retaliation. The federal district court found otherwise. It held that although meritless accusations of discrimination made in formal proceedings are...