Rebarchek v. FARMERS CO-OP ELEVATOR & MERCANTILE ASS'N OF DIGHTON

• Decision Date: 07 December 2001
• Docket Number: No. 82,662.,82,662.
• Citation: 272 Kan. 546,35 P.3d 892
• Parties: LARRY L. REBARCHEK, Appellant, v. FARMERS COOPERATIVE ELEVATOR AND MERCANTILE ASSOCIATION OF DIGHTON, KANSAS, and FLOYD G. BARBER, Appellees.
• Court: Kansas Supreme Court

272 Kan. 546

35 P.3d 892

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

No. 82,662.

Supreme Court of Kansas.

Opinion filed December 7, 2001.

John L. Carmichael, of Wilson, Lee and Gurney, of Wichita, argued the cause and was on the briefs for appellant.

Ward E. Loyd, of Ward Loyd Law Offices, L.L.C., of Garden City, argued the cause, and Craig D. Kershner, of Dighton, was with him on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Larry L. Rebarchek filed suit against his former employer, Farmers Cooperative Elevator and Mercantile Association (Farmers), and supervisor, Floyd G. Barber, alleging retaliatory discharge for the filing of a workers compensation claim. The district court granted summary judgment in favor of Farmers and Barber, and Rebarchek appealed. The Court of Appeals reversed and remanded for trial. Rebarchek v. Farmers Co-op Elevator & Mercantile Ass'n., 28 Kan. App.2d 104, 13 P.3d 17 (2000). This court granted defendants/appellees' petition for review.

Farmers operates five elevator and grain storage and handling facilities. Rebarchek began his employment with Farmers in September 1979. In 1983, he fell approximately 60 feet and was seriously injured when the rigging broke as he cleaned the inside of one of Farmers' bins. Rebarchek became branch manager of the Shields, Kansas, facility in July 1986. The Shields facility had six silos with a 665,000 bushel capacity. Rebarchek supervised one employee, Robert Mudd. Rebarchek was responsible for receiving grain at harvest time, maintaining the quality of stored grain, and loading out the grain when it was sold.

Early in 1994, Rebarchek began experiencing recurring back problems for which he sought medical treatment. He was seen on January 18, 1994, by a physician in Dighton, Kansas. In the spring and summer of 1994, he was treated by an orthopedic specialist in Wichita. He was absent from work for an extended period in September 1994. On September 27, 1994, he gave an oral report to Farmers that he had injured his back on January 17, 1994. On November 11, 1994, he gave his employer written notice of a workers compensation claim based on the January 17, 1994, back injury. Reports of the Dighton and Wichita doctors were filed on November 9 and 15, 1994.

On November 16, 1994, Rebarchek told Farmers' secretary that he reinjured his back, Barber was advised on November 17, 1994, and the Form A Employers' Accident Report was made by Farmers the following day. Rebarchek lost no time from work as a result of the November 16 reinjury.

Rebarchek and other Farmers employees drove company pickup trucks to and from work. At the end of the workday on Thursday, November 17, 1994, Barber told Mudd to drive Rebarchek home. He told Rebarchek he could no longer drive the manual transmission company pickup truck assigned for his use. Barber said that he did not want Rebarchek to reinjure his back using the manual transmission. On Friday morning, November 18, Barber announced to all employees that company vehicles could no longer be used for personal business or for commuting to work.

On Monday, November 21, 1994, Barber sent Rebarchek to work at the Alamota facility. The same day he received a letter faxed from Rebarchek's attorney alleging that the reassignment was retaliatory. After receiving the letter, Barber was quite angry. Barber believed that it was on the day he received the faxed letter that he impulsively followed Rebarchek home. Barber was upset and angry. Rebarchek testified 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.'" 28 Kan. App.2d at 107.

Barber returned Rebarchek to his position at the Shields facility on Tuesday, November 22, 1994. Rebarchek remained at Shields until his termination.

On December 5, 1994, Rebarchek requested a hearing on his workers compensation claim.

Rebarchek's failing to maintain the quality of stored grain was the reason given by Farmers for terminating him. The tasks involved in maintaining the quality of the stored grain included checking the temperature of the grain, then turning and blending it if hot spots began to develop. Grain that develops hot spots can become sour, musty, and burned, thus losing value.

Temperatures of stored grain are checked and recorded. The system for tracking temperatures consists of thermocouplers on cables suspended inside each bin. In order to check temperatures, a worker switches on the system and a digital display, then clicks a dial in order to serially display the readings from the thermocouplers. Each reading is written in a "hot spot book." The temperature check at the Shields facility usually took 30 to 35 minutes to complete.

Until grain temperatures are lowered and stabilized after harvests, temperature checks are conducted approximately three times a week. Once the grain temperatures are in acceptable ranges, checks are made at least once a week.

Rebarchek had delegated responsibility for reading the grain temperatures to Mudd. Rebarchek, however, retained ultimate responsibility for the condition of the grain.

On or about September 25, 1994, Farmers first learned of potential problems with the condition of the grain at the Shields facility. Rebarchek was advised by a customer that the grain was bad. Rebarchek assured Barber that "they had simply run through a pocket of bad wheat." Wheat samples furnished to Barber by Rebarchek were tested and given acceptable grades. In spite of being alerted in late September 1994 to potential problems with the condition of stored grain in the Shields facility, Rebarchek did not monitor it. In February 1995, he discovered that a bin that was supposed to be empty was filled with grain. When Rebarchek investigated, he found that grain temperatures had not been checked and that grain had not been properly moved or turned. He discovered corn with a temperature of 144. The preferred temperature range for stored corn is 40 to 60.

On March 21, 1995, Rebarchek and Mudd received written reprimands. Rebarchek was reprimanded "for his lack of management of the grain at the Shields elevator." The reprimand stated:

"Because of inadequate care in reading the hot spot detecting system and turning the grain and blending the grain as needed to maintain it in a marketable condition, we have suffered losses in both wheat and corn. There has been a signifigant [sic] loss in the wheat and now we will have even a bigger loss in corn as there are 125,000 bus. out of condition."

Handwritten on the lower half of the page is the following: "Larry claims only 80,000 bu corn out of condition." The monetary loss was not determined until the grain was shipped, inspected and tested, the purchaser's vouchers were received by Farmers, and the grain certificates were returned. Farmers first shipment of "hot corn" was made in April 1995, and its estimate of the total monetary loss was based on the figures from that partial shipment (30,000 of 140,000 bushels). Farmers estimated that its loss would total approximately $80,000.

On March 24, 1995, Rebarchek underwent back surgery. He returned to work on April 17, 1995. His doctor imposed the following restrictions: "He is released for light duty with no lifting more than 40 lbs., no bending or twisting of the back more than halfway, no climbing ladders. He may sit, stand or walk for 2 hours at a time with breaks. Hopefully, these will be temporary restrictions." Rebarchek's activities had not been restricted before the surgery.

One week after Rebarchek returned to work, his employment was terminated by Farmers. Mudd also was discharged on April 24, 1995. The Court of Appeals found that there was a genuine issue of material fact that precluded the entry of summary judgment against Rebarchek and remanded the case for trial.

In arguing that the Court of Appeals incorrectly concluded that Rebarchek was entitled to test his case before a jury, defendants raise questions about the burden of proof and using a burden-shifting approach as well as whether Rebarchek's evidence raised a genuine issue of material fact.

Burden of proof. The burden of proof borne by a plaintiff alleging retaliatory discharge due to his or her filing a workers compensation claim was the subject of a certified question in Ortega v. IBP, Inc., 255 Kan. 513, 874 P.2d 1188 (1994). This court said:

"In Kansas, claimants are required to prove a claim for retaliatory discharge by clear and convincing evidence. Clear and convincing evidence is not a quantum of proof but rather a quality of proof. A party having the burden of proving a retaliatory discharge from employment for having filed a workers compensation claim must establish that claim by a preponderance of the evidence, but the evidence must be clear and convincing in nature. It is clear if it is certain, unambiguous, and plain to the understanding. It is convincing if it is reasonable and persuasive enough to cause the trier of facts to believe it." 255 Kan. 513, Syl. ¶ 2.

Defendants complain that the Court of Appeals misidentified the burden of proof in Syl. ¶ 4 in saying that "[t]he burden of proof is on the complainant to prove by a preponderance of the evidence...." Defendants failed to note Syl. ¶ 2, which states: "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." 28 Kan. App.2d 104, Syl. ¶ 2.

A question that presents itself in this case is whether a clear and convincing quality of proof standard should be required in determining on a motion for summary judgment whether there is a genuine issue of material fact. In Baumann v. Excel Industries, Inc., 17 Kan. App.2d 807, 845 P.2d 65, rev. denied 252 Kan. 1091 (1993), a panel of the Court of Appeals,...