Murphy v. City of Topeka-Shawnee County Dept. of Labor Services
| Citation | 6 Kan.App.2d 488,630 P.2d 186 |
| Decision Date | 19 June 1981 |
| Docket Number | No. 51847,TOPEKA-SHAWNEE,51847 |
| Parties | , 115 L.R.R.M. (BNA) 4433 Harold MURPHY, Plaintiff-Appellant, Cross-Appellee, v. CITY OFCOUNTY DEPARTMENT OF LABOR SERVICES; Bill Bywater; Ann Newman; and Alonzo Harrison, Defendants-Appellees and Cross-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY, KANSAS, et al., Third-Party Defendants-Appellees and Cross-Appellants. |
| Court | Court of Appeals of Kansas |
Syllabus by the Court
1. Absent express authority conveyed upon it by statute or ordinance, an administrative agency of a city does not possess the capacity to sue or to be sued without the joinder of the city as a "contingently necessary" party to the action.
2. Whenever a necessary and indispensable party to an action has not been joined in the action, and cannot for legal reasons be later joined, the action must be abated as to those parties.
3. An action brought by an employee-at-will against his employer and its supervisory personnel for retaliatory discharge sounds in tort, and the plaintiff may not characterize such an action as one in contract in order to avoid the provisions of K.S.A. 12-105, now repealed.
4. Individual officers and employees of an immune governmental entity do not share that immunity when they act outside the scope of their authority or commit a willful or wanton act which results in injury to others.
5. In the absence of a contract, expressed or implied, between an employee and his employer covering the duration of employment, the employment is normally terminable at the will of either party.
6. The Workmen's Compensation Act provides efficient remedies and protection for employees, and sound public policy requires protection from coercion in the free exercise of their rights under the act which would substantially subvert the purpose of the act.
7. Under the facts and circumstances of this case, it is held that the 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.
Fred W. Phelps, Jr., of Fred W. Phelps, Chartered, Topeka, for plaintiff-appellant and cross-appellee.
Robert E. Duncan, II, Asst. City Atty., and Timothy E. Paul, Deputy City Atty., Topeka, for the defendants-appellees and Robert E. Duncan, II, Asst. City Atty., andcross-appellants City of Topeka-Shawnee County Dept. of Labor Services.
David D. Plinsky, of Dept. of Labor Services, Topeka, for defendants-appellees and cross-appellants Bill Bywater, Ann Newman and Alonzo Harrison.
Donna Voth, Asst. County Counselor, Topeka, for third-party defendants-appellees and cross-appellants Board of County Commissioners of Shawnee County, et al.
Before HERD, Justice Presiding, SWINEHART, J., and WILLIAM M. COOK, District Judge, Assigned.
This is an appeal by plaintiff, Harold Murphy, a terminated employee, from the district court's dismissal of his cause of action against defendants, City of Topeka-Shawnee County Department of Labor Services, Bill Bywater, Ann Newman, and Alonzo Harrison. Also involved is a cross-appeal by defendants and third-party defendants Board of County Commissioners of Shawnee County, et al., from a prior order of the trial court sanctioning a cause of action for wrongful retaliatory discharge from employment, heretofore unrecognized in this state.
Harold Murphy was employed by the Department of Labor Services (DOLS), an administrative agency of the City of Topeka. Murphy was employed in April, 1977, and allegedly sustained on-the-job injuries on June 15, 1977. Subsequent to his injury, Murphy filed a workmen's compensation claim as authorized by the Kansas Workmen's Compensation Act, K.S.A. 44-501 et seq. Murphy contends he was offered further employment by DOLS, through its supervisory employees, defendants Bywater, Newman and Harrison, on the condition that he withdraw his compensation claim. When Murphy refused, he claims his employment was terminated by defendants.
On January 31, 1979, Murphy filed his petition in the district court alleging he was discharged in retaliation for claiming workmen's compensation benefits against his employer, and prayed for both actual and punitive damages. Defendants filed an answer asserting the defense of governmental immunity, filed motions to dismiss and for summary judgment, and filed a third-party petition against the third-party defendants for judgment in the amount of any damage award for which defendants might subsequently be held liable under plaintiff's petition. On July 31, 1979, the trial court denied the original motion to dismiss, holding that plaintiff's petition stated a valid claim, viz., retaliatory discharge for failure to withdraw his workman's compensation claim. The court held:
The trial court later, however, by letter decision dated December 12, 1979, dismissed plaintiff's cause of action against all defendants. The court found that plaintiff had failed to comply with the notice requirements of K.S.A. 12-105 and since that statute was applicable to any agency of a city, his action must, therefore, be dismissed. The court also held that the individual defendants were acting within the scope of their authority when they terminated the plaintiff and his action against them must likewise fail. Plaintiff claims the court erred.
While stated differently and in varying detail by the parties, there are two primary issues to be decided in this appeal and cross-appeal: (1) Did the district court err in dismissing plaintiff's lawsuit for failure to comply with K.S.A. 12-105; and (2) does a cause of action exist in this state for an employee-at-will who is terminated by his employer for filing a workmen's compensation claim? The second question is one of first impression for this state and involves important public policy considerations.
Pursuant to the Interlocal Cooperation Act (K.S.A. 12-2901 et seq.), the City of Topeka and Shawnee County entered into a contract denominated "Cooperative Agreement for the Administration of Employment and Training Services." The contract provided, in part as follows:
....
....
"All staff Personnel employed by the Administrative Arm shall be employees of the City." (Emphasis supplied.)
The City of Topeka, in compliance with the contract provisions, enacted Ordinance No. 13990 which established the Department of Labor Services (DOLS) to function as the "administrative unit" as authorized and defined under the Comprehensive Employment and Training Act of 1973 (CETA). Although DOLS, because of its county-wide jurisdiction, may be known locally under the name of "City of Topeka-Shawnee County Department of Labor Services," as designated by plaintiff in his petition and summons, the department is solely an agency of the City of Topeka.
Plaintiff concedes that he failed to file a written claim with the city clerk of Topeka. K.S.A. 12-105, since repealed, provided:
"No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within six (6) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received, the circumstances relating thereto and a demand for settlement and payment of damages ...."
Plaintiff argues K.S.A. 12-105 does not apply to the present situation. He contends the statute only applies to cities and his suit, brought only against DOLS and its individual employees, is not against a city. His contention, insofar as DOLS is concerned, is without merit.
Absent authority expressly given by statute or ordinance, an agency of a city does not have the capacity to sue or to be sued as a separate entity; the city is a necessary and indispensable party to any action filed either by or against the agency. Hubert v. Board of Public...
To continue reading
Request your trial
-
Smith v. United Technologies, Essex Group, Inc., Wire and Cable Div., 59029
...of this issue. In Cox, we declined to extend the tort of retaliatory discharge judicially recognized in Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981), to include an employee adequately protected contractually from such discharge by a collective bargaining agreement. Cox wa......
-
OMI Holdings, Inc. v. Howell
...upon seclusion, and invasion of privacy. Arche v. United States of America, 247 Kan. 276, 798 P.2d 477 (1990); Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981); Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974); Roberson v. Counselman, 235 Kan. 10......
-
Clay v. Board of Trustees of Neosho Cty. Community
...in recommending plaintiff's nonrenewal were malicious, willful or wanton preclude summary judgment. See Murphy v. City of Topeka, 6 Kan.App.2d 488, 494, 630 P.2d 186, 191 (1981) (allowing action against city agency supervisory personnel for retaliatory discharge as individuals acting in abu......
-
Bausman v. Interstate Brands Corp., 96-4119-SAC.
...fire an employee for filing a workers' compensation claim, a practice contrary to the public policy of this state as decided in Murphy v. City of Topeka. Other jurisdictions have also recognized that it is a violation of public policy and workers' compensation law to discharge an employee f......
-
Fire at Will the Status of Judicially Created Exceptions to Employment-at-will in Kansas
...v. Readway Express, Inc., 782 F.Supp. 567 (D.Kan. 1992). [FN111]. __ F.Supp. __, 1994 WL 621546 (D.Kan., Oct. 4, 1994). [FN112]. 6 Kan. App. 2d 488, 630 P.2d 186 (1981). [FN113]. Id. at 489. [FN114]. Id. at 495-96. In so holding, the court of appeals rejected the argument that no common law......
-
Twenty Years After Murphy v. City of Topeka: an Overview of Kansas Retaliatory and Public Policy Wrongful Discharge Law
...Comment Editor for the Kansas Law Review. He received his bachelor's degree from Claremont McKenna College. FootNOTES 1. 6 Kan. App. 2d, 630 P.2d 186, 488 (1981). 2. After this article was selected for publication, the author was made aware that this topic had been addressed seven years ago......
-
Bosses Beware-it's a Jungle Out There Supervisor Liability in
...1986) (citing Fletcher v. Wesley Med. Ctr., 585 F. Supp. 1260, 1262 (D. Kan. 1984)). [FN145]. Id. (citing Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981)); Clay v. Board of Trustees of Neosho County Comm. College, 905 F.Supp. 1488, 1501 (D. Kan. 199) (citing same). ...
-
Resolving the Ambiguity--a Post-trosper Guidebook for Courts and Employers: Trosper v. Bag `n Save, 273 Neb. 855, 734 N.w.2d 704 (2007)
...717 N.W.2d at 914. 34. Trosper, 273 Neb. at 859, 734 N.W.2d at 707 (citing Murphy v. City of Topeka-Shawnee County Dept. of Labor Servs., 630 P.2d 186 (Kan. Ct. App. 1981); Hansen v. Harrah's, 675 P.2d 394 (Nev. 1984)). 35. Trosper, 273 Neb. at 859, 734 N.W.2d at 707-08. 36. Id. at 859, 734......