Roxberry v. Robertson and Penn, Inc.
| Decision Date | 29 November 1993 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before LOGAN, BARRETT and EBEL, Circuit Judges.
After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
The sole issue presented on appeal is whether the district court erred in granting summary judgment to the defendant-appellee, Robertson And Penn, Inc., on the ground that plaintiff-appellant Roxberry had failed to state a cause of action for wrongful discharge by retaliation for whistle-blowing because Roxberry reported the claimed contract violation to the victim rather than to either company management or law enforcement officials.
The district court relied on Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (Kan.1988) which holds that the whistle-blowing must be reported "... to either company management or law enforcement officials" in order to support a cause of action in tort for employment termination in retaliation for good faith reporting of infraction of rules, regulations or laws. Id. at 900.
We AFFIRM substantially for the reasons set forth in the district court Memorandum and Order dated and filed September 30, 1991, a copy of which is attached hereto and by reference made a part hereof. We deny appellant's motion for certification of question to the Supreme Court of the State of Kansas.
ROBERTSON AND PENN, INC., a/k/a National Service Company, Defendant.
MEMORANDUM AND ORDERThis matter is before the court on defendant Robertson and Penn, Inc.'s motion for summary judgment.
Debbie Roxberry, plaintiff and a former employee of the defendant, filed suit against the defendant seeking compensatory damages for alleged retaliatory discharge. Plaintiff contends she was discharged in retaliation for reporting improper acts of the defendant in its performance under a contract with the United States of America. In its motion for summary judgment, defendant asserts a lack of jurisdiction based upon diversity or a federal question, and contends plaintiff was discharged for good cause.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must resolve all disputed facts in favor of the party resisting summary judgment. White v. General Motors Corp., Inc., 908 F.2d 669, 670 (10th Cir.1990), cert. denied, 59 U.S.L.W. 3441 (1991). Summary judgment shall be denied if the moving party fails to demonstrate its entitlement beyond a reasonable doubt. Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980).
The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing of an essential element of the case for which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986), cert. denied, 484 U.S. 1066 (1988). In resisting a motion for summary judgment, the nonmoving party may not rely upon mere allegations, or denials, contained in its pleadings or briefs. Rather, the party must come forward with specific facts showing the presence of a genuine issue for trial. Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir.1990). One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex, 477 U.S. at 323-24.
A hearing on the motion was held on September 25, 1991. At that time both parties presented arguments and the court announced its decision. Consistent with its decision at the hearing, and for the reasons cited herein, the court grants defendant's motion for summary judgment.
Upon review of the record and the parties' arguments concerning summary judgment, the court makes the following findings of undisputed material facts.
Defendant, a Missouri corporation, is a private contractor to the United States of America for laundry and dry cleaning services at Fort Riley. Plaintiff was employed by defendant as supervisor of the dry cleaning department until her termination on May 3, 1990.
In March, 1990, plaintiff told Willie Dawson that certain shirts had been washed rather than dry cleaned, the process for which they had been delivered. Willie Dawson was an employee of JC & N, a private contractor to the United States government which operated the Central Issue Facility at Fort Riley. Upon inquiry, plaintiff told her project manager that she had informed Dawson some shirts were washed rather than dry cleaned. It is a controverted fact as to who initiated the conversation between Dawson and plaintiff. Plaintiff asserts that Dawson approached her and asked about the shirts. Defendant contends plaintiff initiated the conversation with Dawson and then lied about that fact when questioned by the project manager.
On May 3, 1990, plaintiff's employment with defendant was terminated. She alleges the discharge was in retaliation for informing Dawson of the alleged contract violation. Defendant claims it had permission to wash the shirts and plaintiff, therefore, had no wrongdoing to report.
Defendant also contends plaintiff was discharged for good cause based upon her untruthfulness in reporting the conversation with Dawson, refusing to learn all the duties required of a supervisor, and bearing a bad attitude at work. Finally, defendant argues plaintiff was not a whistle-blower because she did not report the incident to the proper authorities.
The first issue the court considers is whether plaintiff has sufficiently pleaded a cause of action for retaliatory discharge. The record indicates plaintiff was an at-will employee. The employment of an at-will employee is terminable at the will of either party at any time and for any cause. Kistler v. Life Care Centers of...
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Fire at Will the Status of Judicially Created Exceptions to Employment-at-will in Kansas
...regarding co-employee's failure to receive a DOT physical); Roxberry v. Robertson & Penn, Inc., 1991 WL 195808 (D.Kan. 1991), aff'd, 963 F.2d 382 (10th Cir.1992) (plaintiff reported alleged infraction to a third party but not to company management or law enforcement; summary judgment for de......