Pilcher v. Board of County Com'rs of Wyandotte County, 63737

• Decision Date: 02 February 1990
• Docket Number: No. 63737,63737
• Citation: 14 Kan.App.2d 206,787 P.2d 1204
• Parties: , 115 Lab.Cas. P 56,239, 5 IER Cases 150 Wanda PILCHER, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF WYANDOTTE COUNTY, Appellee.
• Court: Kansas Court of Appeals

Page 1204

787 P.2d 1204

14 Kan.App.2d 206, 115 Lab.Cas. P 56,239,

5 IER Cases 150

Wanda PILCHER, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF WYANDOTTE COUNTY, Appellee.

No. 63737.

Court of Appeals of Kansas.

Feb. 2, 1990.

Review Denied April 20, 1990.

Syllabus by the Court

1. The general rule in Kansas is that, absent an express or implied contract between an employer and an employee, the employee is an "employee-at-will" and may be discharged at any time without cause. Conversely, an employee-at-will may quit his or her employer at any time without cause. Generally, the discharge of an employee-at-will does not give rise to a cause of action for retaliatory discharge against the employer.

2. There are two distinct exceptions to the rule that an employee-at-will may be discharged at any time without cause: (a) An employee-at-will may not be discharged under any circumstances where the discharge violates or frustrates any clear public policy; and (b) an employee-at-will may not be discharged for filing a claim for workers' compensation, or for being absent from work or failing to call in an anticipated absence as the result of a work-related injury. The discharge of an employee-at-will under such circumstances creates a cause of action for retaliatory discharge against the employer.

3. An employee-at-will, wrongfully discharged because the employer perceived that the employee has reported illegal or improper hiring practices of the employer, has a cause of action for retaliatory discharge for "whistle-blowing" against the employer.

4. It is the duty of the trial court to properly instruct the jury upon the theory and the law of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice against the appealing party. Instructions in any particular action are to be considered together and read as a whole and, where they fairly instruct the jury on the laws governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, then the jury could not reasonably be misled by them and the instructions will be approved on appeal.

5. A jury's verdict will not be reversed on appeal on the basis of improper instructions unless the party complaining of the instructions has made a timely objection at the trial court level or unless the instruction is clearly erroneous on its face.

6. In a case involving a cause of action for retaliatory discharge in connection with a possible claim for workers' compensation, an instruction that fails to instruct the jury that a cause of action for retaliatory discharge may exist, even though no claim for workers' compensation has been filed, if the discharge is based on being absent from work or failing to call in an anticipated absence as a result of a work-related injury, is clearly erroneous on its face and the verdict in favor of the employer based on such an instruction must be reversed.

Michael R. McIntosh, Kansas City, for appellant.

Wayman W. Favors, County Counselor, and George Maier, Jr., Kansas City, for appellee.

Before ABBOTT, C.J., and RULON and LEWIS, JJ.

LEWIS, Judge:

This is an appeal by Wanda Pilcher from the orders of the district court directing verdicts in favor of the Board of County Commissioners of Wyandotte County (Board) on her causes of action against the Board for damages for breach of an implied employment contract, violation of her due process rights, and retaliatory discharge for alleged "whistle-blowing." She also complains that the district court erred in instructing the jury on her claim for retaliatory discharge for filing a workers' compensation claim.

Upon review, we affirm the directed verdicts on the claims for breach of implied contract and violation of due process rights. We reverse the district court on the claim for retaliatory discharge and, further, for errors in instructing the jury on the claim for retaliatory discharge for filing a workers' compensation claim.

Pilcher had been employed by Wyandotte County as a case manager in the county community corrections agency and had been so employed from July 17, 1981, until her alleged wrongful discharge on June 22, 1987. Pilcher's claims against the Board arise out of at least three separate factual scenarios, none of which are necessarily related to the other.

For its part, the Board denies that it had any improper motives in discharging Pilcher, denies that she had an implied contract, and denies that she was discharged either for "whistle-blowing" or for filing a workers' compensation claim. The Board simply points out that Pilcher missed too many days of work as a result of arm and ankle injuries she sustained when she fell outside the Wyandotte County courthouse. The Board says that, according to its policy, she missed too many consecutive days of work and was discharged for that reason alone.

We first turn to Pilcher's claim that the Board breached an implied contract by discharging her and that she was denied due process in the termination procedure. These two claims are based upon certain oral understandings Pilcher had of what had to take place before someone could be fired from a job at community corrections. Although conceding that she had no written or oral contract with the Board as to terms or the length of her employment, Pilcher contends that it was her understanding that an employee, before being fired, must be given a minimum of three warnings and an opportunity to appear before an advisory board before being fired. Pilcher insists that this understanding amounted to an implied contract and that it was breached by the Board by the method in which her employment was terminated.

We first address the issue of implied contract of employment and, specifically, whether the trial court acted properly in directing a verdict for the defendant on this issue.

The Kansas Supreme Court in Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 (1987), discussed the rules to be followed in cases where a motion for directed verdict is filed:

"In ruling on a motion for a directed verdict, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. This rule is also applicable when appellate review is sought on a motion for directed verdict. Further, the same test is applicable to a motion for judgment notwithstanding the verdict. [Citation omitted.]"

In Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983), the Kansas Supreme Court held that the question before a trial court on a motion for a directed verdict is not

"whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury could properly find a verdict for that party. Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where that is true, the issue must be submitted to the jury. [Citation omitted.] Where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court's determination. [Citations omitted.]"

Pilcher was seeking to prove that she had an implied contract of employment which laid down certain steps that had to be taken before she could be discharged.

Kansas is an "employee-at-will" state in which the general rule is that, absent an express or implied contract between employer and employee, either party may terminate the employment relationship at any time they please with or without cause. In short, absent a contract, an employee may be discharged at any time and the employer need have no reason or cause for discharging the employee and, by the same token, the employee may quit his job at any time for any reason. See Johnson v. National Beef Packing Co., 220 Kan. 52, 54, 551 P.2d 779 (1976).

There are some exceptions to the general rule. For reasons of public policy, an employee-at-will may not be discharged for filing a workers' compensation claim. Murphy v. City of Topeka, 6 Kan.App.2d 488, 493, 630 P.2d 186 (1981). Neither may an employee-at-will be discharged under circumstances where that discharge is against any clear public policy. See Cain v. Kansas Corporation Commission, 9 Kan.App.2d 100, 673 P.2d 451 (1983), rev. denied 235 Kan. 1041 (1984).

In the instant matter, we deal with a claim of implied contract. If Pilcher's evidence was not sufficient to go to a jury on this issue, she was nothing more than an employee-at-will and her termination was proper unless one of the exceptions to the general rule applies.

The parties are well aware of the evidence offered on the issue of implied contract and we have generally capsulized that evidence earlier in this opinion.

The issue of whether an implied contract of employment exists is generally one for the trier of fact. However, in this case, the evidence offered by Pilcher was simply not sufficient to carry the issue to a jury. In general, she offered evidence by way of her own testimony and that of a former supervisor to the effect that all of the employees of the department of community corrections believed they would receive three warnings before being fired. Pilcher was unable to support this theory with any written documentations or policy and could not state from whom or where she received this information, simply insisting everyone said it had always been this way.

Without further elaboration and within the perimeters listed by the Kansas Supreme Court in the decisions set forth above, we hold that, on the issue of implied...