Rebarchek v. Farmers Co-op Elevator & Mercantile Ass'n

• Decision Date: 03 November 2000
• Docket Number: No. 82,662.,82,662.
• Citation: 28 Kan. App.2d 104,13 P.3d 17
• Parties: LARRY L. REBARCHEK, Appellant, v. FARMERS COOPERATIVE ELEVATOR AND MERCANTILE ASSOCIATION OF DIGHTON, KANSAS, and FLOYD G. BARBER, Appellees.
• Court: Kansas Court of Appeals

28 Kan. App.2d 104

13 P.3d 17

LARRY L. REBARCHEK, Appellant, v. FARMERS COOPERATIVE ELEVATOR AND MERCANTILE ASSOCIATION OF DIGHTON, KANSAS, and FLOYD G. BARBER, Appellees.

No. 82,662.

Court of Appeals of Kansas.

Opinion filed November 3, 2000.

John L. Carmichael, of Wilson, Lee and Gurney, of Wichita, for appellant.

Ward Loyd, of Loyd & Maudlin Law Offices, LLC, of Garden City, and Craig D. Kershner, of Dighton, for appellees.

Before BRAZIL, C.J., BEIER, J. and J. STEPHEN NYSWONGER, District Judge, assigned.

BEIER, J.:

Plaintiff-appellant Larry L. Rebarchek appeals the district court's decision to grant summary judgment in favor of defendants-appellees Farmers Cooperative Elevator and Mercantile Association of Dighton, Kansas (Farmers) and Floyd G. Barber. Because we reverse and remand for trial on Rebarchek's claim of retaliatory discharge for the filing of a workers compensation claim, we must also address issues regarding the statute of limitations, potential supervisor liability, and punitive and emotional distress damages. The remand makes Rebarchek's remaining issue regarding the use of previous testimony moot.

The controlling facts are these: Rebarchek began his employment with Farmers, a Kansas Corporation, in 1979 and eventually became branch manager of Farmers' Shields facility. Rebarchek's job was to receive grain at harvest time and to maintain the quality of stored grain. Among his duties in maintaining the grain was checking for "hot spots." When hot spots were detected, Rebarchek was supposed to ensure that the grain was turned and blended to keep it from becoming sour, musty, or burned. Untreated hot spots cause grain to lose value because it becomes overheated, burned, and discolored. According to Rebarchek, he delegated his responsibility for reading the temperatures of the grain to his subordinate, Robert Mudd.

In January 1994, Rebarchek injured his back. Later, he claimed that the injury was work-related and filed a workers compensation claim. He notified Farmers of the injury in November 1994 and filed an application for a workers compensation hearing the following month.

On November 16, 1994, Rebarchek told Farmers' secretary that he reinjured his back that day while placing a tarp on a customer's truck. The following day, Barber, the general manager of Farmers, commented on Rebarchek's injury while Rebarchek was clocking out. A couple of days later, Barber told Rebarchek that he could no longer drive the company pickup truck. Barber said he did not want Rebarchek to reinjure his back by operating the truck's clutch.

On November 21, 1994, Barber reassigned Rebarchek to work at the Alamota facility. Rebarchek considered this a demotion. That day, Rebarchek's attorney sent a letter to Barber, alleging that the reassignment was retaliatory and demanding that Rebarchek be permitted to keep his position and duties at the Shields facility. Barber admits that he was angry when he received the letter, but he permitted Rebarchek to return to Shields.

Barber also admits that he followed Rebarchek home from work on one occasion in this time period. Rebarchek testified at his deposition that, at his home, Barber told him he was "tired of getting nasty letters" from Rebarchek's attorney and accused him of shipping out "bad grain."

Farmers had first noticed problems with the condition of the grain at the Shields facility in late September 1994. Barber talked to Rebarchek about the bad grain, and Rebarchek assured him that Farmers had simply run through a pocket of bad wheat. From September 1994 to February 1995, the temperatures of the grain apparently were rarely tracked. Then, in February 1995, Rebarchek found hot corn and discovered the temperatures had not been read as they should have. Rebarchek and Mudd received written reprimands concerning the damaged grain on March 21, 1995.

Within a few days after his reprimand, Rebarchek underwent back surgery. On April 17, 1995, his physician released him to work on light duty. Rebarchek's temporary work restrictions included prohibitions on lifting more than 40 pounds, bending or twisting of his back more than halfway, and ladder climbing.

Farmers started receiving settlements from corn sales in April 1995, which confirmed the specific magnitude of its losses associated with the hot spots in the Shields facility grain. Farmers fired Rebarchek and Mudd on April 24, 1995, one week after Rebarchek was released to return to work on light duty.

Rebarchek filed suit in both state and federal courts. In his petition in this action, he alleged that Farmers and Barber discharged him in retaliation for filing a workers compensation claim. He also alleged that the defendants' retaliatory discharge was "willful, intentional, malicious, and done with the intent and purpose to damage the plaintiff." The court subsequently dismissed the action against Barber in his capacity as a representative of Farmers but permitted it to continue against Barber in his individual capacity.

The district court granted defendants' motion for summary judgment, finding that Rebarchek failed to show a correlation between the time of filing the workers compensation claim and his discharge 7 months later and that he failed to show a satisfactory work performance. Given its ruling on the summary judgment motion, the district court also denied Rebarchek's motion to amend his pleadings to add a punitive damages claim without reaching the merits of the motion.

Summary Judgment

The standard of review on appeals from summary judgment rulings is well established:

"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.... On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).

The plaintiff must prove a claim for retaliatory discharge by a preponderance of the evidence, but the evidence must be clear and convincing in nature. Ortega v. IBP, Inc., 255 Kan. 513, 528, 874 P.2d 1188 (1994).

In SanJuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir. 1998), the United States Court of Appeals for the Tenth Circuit laid out the elements of a prima facie claim for retaliatory discharge for filing a workers compensation claim: (1) The plaintiff filed a claim for workers compensation benefits or sustained an injury for which he or she might assert a future claim for such benefits; (2) the employer had knowledge of the plaintiffs workers compensation claim injury; (3) the employer terminated the plaintiff's employment; and (4) a causal connection existed between the protected activity or injury and the termination.

Our Supreme Court has adopted a burden-shifting approach to analyze cases involving retaliatory discharge based on discrimination. We hold that the same analysis should be applied in workers compensation retaliatory discharge cases.

"The burden of proof ... is on the complainant to prove by a preponderance of the evidence that the respondent is guilty of a discriminatory practice. Initially, the complainant must present a prima facie case of discrimination. Then the burden of going forward with the evidence shifts to the respondent and this burden may be discharged by evidence of a legitimate, nondiscriminatory reason for respondent's conduct. Once the respondent discharges this obligation, the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by respondent were merely a pretext for discrimination." Woods v. Midwest Conveyor Co., 231 Kan. 763, 767-68, 648 P.2d 234 (1982).

Judge Earl E. O'Connor of the United States District Court for the District of Kansas has concluded that Kansas would utilize the burden-shifting analysis in workers compensation discharge cases. Robinson v. Wilson Concrete Co., 913 F. Supp. 1476, 1483 (D. Kan. 1996). The parties wisely agree that this analysis should be applied here, and we hold that it does.

In this case, there is no dispute that Rebarchek has come forward with sufficient evidence on the first three elements of a prima facie case. The district court found that he lacked such evidence on the fourth element, a causal connection between his workers compensation claim and his discharge, relying in large part on the length of time that passed between his November 1994 notice to Farmers of his workers compensation claim and his late April 1995 discharge.

This court has noted the persuasive force of close temporal proximity between a discharge and the filing of a workers compensation claim:

"`Ordinarily the prima facie case must, in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive. Proximity in time between the claim and the firing is a typical beginning-point, coupled with evidence of satisfactory work performance and supervisory evaluations.'" Marinhagen v. Boster, Inc., 17 Kan. App.2d 532, 540, 840 P.2d 534 (1992) (quoting 2A Larson's Workmen's Compensation Law § 68.36[c][1992]).

Although our Supreme Court has not specifically addressed the issue of what constitutes an acceptable period of time between the claim and the discharge, the federal courts have done so. In Nguyen v. IBP, Inc., 905 F. Supp 1471, 1482 (D. Kan. 1995), the court found that 5 months may be too remote. See also Spradley v. Custom Campers, Inc., 68 F. Supp.2d 1225, 1235 (D. Kan. 1999) (10-month span between filing of a workers compensation claim and termination insufficient to...