Sandlin v. Roche Laboratories, Inc.

• Decision Date: 05 November 1999
• Docket Number: No. 79,590.,79,590.
• Parties: PERRY T. SANDLIN, Appellant/Cross-Appellee, v. ROCHE LABORATORIES, INC., d/b/a ROCHE BIOMEDICAL LABORATORIES, a Delaware Corporation; MARY PECK, an individual; and NATALIE PIERCE, an individual, Appellees/Cross-Appellants.
• Court: Kansas Supreme Court

268 Kan. 79

991 P.2d 883

PERRY T. SANDLIN, Appellant/Cross-Appellee, v. ROCHE LABORATORIES, INC., d/b/a ROCHE BIOMEDICAL LABORATORIES, a Delaware Corporation; MARY PECK, an individual; and NATALIE PIERCE, an individual, Appellees/Cross-Appellants.

No. 79,590.

Supreme Court of Kansas.

Opinion filed November 5, 1999.

Stephanie N. Scheck, of Morrison & Hecker, L.L.P., of Wichita, argued the cause, and Alan L. Rupe, of the same firm, was with her on the briefs for appellant/ cross-appellee. Dennis V. Lacey, of Kahrs, Nelson, Fanning, Hite & Kellogg, L.L.P., of Wichita, argued the cause, and Richard L. Honeyman, of the same firm was with him on the brief for appellees/cross-appellants.

The opinion of the court was delivered by

LARSON, J.:

The dispositive issue of this appeal is whether a fired employee, with an administrative proceeding pending before the Kansas Human Rights Commission in which a probable cause finding of a violation of K.S.A. 44-1001 et seq., had been issued, may bring a separate action in the district court without completely exhausting his administrative remedies. We hold that he may not.

Perry T. Sandlin sued his former employer, Roche Laboratories, Inc., (now Laboratory Corp. of America Holdings) (Roche) for alleged violations of the Kansas Acts Against Discrimination (KAAD), K.S.A. 44-1001 et seq. Roche's motion for summary judgment based on lack of jurisdiction for failure to exhaust administrative remedies was denied. A jury trial was commenced, and Sandlin presented his evidence and rested. The trial court granted Roche's motion for a directed verdict on Sandlin's substantive claims.

Sandlin appeals the trial court's grant of a directed verdict. Roche cross-appeals the trial court's ruling regarding lack of jurisdiction. The case was transferred to this court from the Court of Appeals pursuant to K.S.A. 20-3018(c).

Factual and procedural background

Only a limited factual background is necessary because we resolve this matter on procedural grounds raised by the cross-appeal.

Sandlin had worked for Roche and its predecessors between 1973 and the time of the termination of his employment on May 1, 1992. He asserts that because he suffered from depression, the termination of his employment resulted from discrimination against him in violation of the KAAD.

On July 28, 1992, Sandlin filed a timely complaint with the Kansas Human Rights Commission (KHRC), which then conducted an investigation and on or about June 13, 1995, issued a finding that probable cause existed for crediting the allegations of the complaint as allowed by K.S.A. 44-1005(e). A copy of this probable cause finding is not in the record, but it is referred to in a June 20, 1995, letter of Sandlin's then counsel that expresses readiness for the conciliation process, including his damage claim for lost wages, pain and suffering, attorney fees, and possible reinstatement.

On August 2, 1996, while the administrative proceeding was still active and pending, Sandlin filed his district court petition in this case.

In its September 5, 1996, answer to Sandlin's petition, Roche asserted affirmatively that Sandlin's claim was barred because he had failed to exhaust his administrative remedies.

In an apparent response to this allegation, Sandlin's attorney wrote KHRC on September 9, 1993, requesting dismissal of Sandlin's pending case and closure of the administrative file.

The KHRC, on September 13, 1996, sent a letter to Sandlin in care of his attorney at her address, dismissing the complaint administratively pursuant to K.A.R. 21-41-10, as authorized by K.S.A. 44-1003 and K.S.A. 44-1004. The letter enclosed as an attachment a copy of the recently published decision of the Kansas Court of Appeals, Simmons v. Vliets Farmers Co-op Ass'n, 19 Kan. App.2d 1, 861 P.2d 1345, rev. denied 253 Kan. 861 (1993), which was stated to be "for your consideration as to any action you may deem appropriate."

The Simmons decision states: "A claimant must file a petition for reconsideration of any Kansas Human Rights Commission order or action to exhaust administrative remedies and preserve the right to pursue an independent claim in district court. See K.S.A. 44-1001 et seq., K.S.A. 44-1111 et seq., K.S.A. 1992 Supp. 44-1010, and K.S.A. 44-1011." 19 Kan. App.2d 1, Syl. ¶ 2.

The KHRC dismissal letter was received by Sandlin's attorney on or about September 15, 1996, but Sandlin was not given a copy.

We need not relate in detail the complicated factual scenario that next occurred in the procedural history of this case. It is sufficient to state that near the end of 1996, Sandlin's attorney raised the fact that Sandlin had not been served with the order, service was made, a petition for reconsideration was presumably filed but not received by the KHRC, and a later petition for reconsideration was filed in April 1997. Roche's motion for summary judgment based on lack of jurisdiction was principally argued based on Sandlin's failure to timely satisfy the requirement of asking for reconsideration of the KHRC's order of dismissal.

However, at the hearing on Roche's motion for summary judgment, even though Roche concentrated on arguing that Sandlin had failed to file his petition for reconsideration within 15 days of service of the order of dismissal, Sandlin's attorney noted:

"`Mr. Lacey [Roche's attorney] originally raised with us the fact that we couldn't file our lawsuit because we hadn't dismissed the [KHRC] charges [,he] has, in his answer, alleged that we were premature in filing that claim; he has now waived that argument. We offered to dismiss the case, close the administrative file and proceed on and Mr. Lacey declined that invitation.'"

There was no further mention of the premature filing issue. The trial court denied Roche's motion for summary judgment. That denial is the subject of Roche's cross-appeal to our court, which we first consider, as it is dispositive in this case.

Standard of Review

Although we review the trial court's denial of Roche's motion for summary judgment, we do so on the basis of interpretation of statutes, which are questions of law upon which our review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). More specifically, it was held in Nora H. Ringler Revocable Family Trust v. Meyer Land and Cattle Co., 25 Kan. App.2d 122, Syl. ¶ 6, 958 P.2d 1162 (1998) that "[w]hether a party is required to or has failed to exhaust administrative remedies is a question of law over which our review is unlimited."

In deciding these issues, we will in part be considering statutory provisions, which we do with the following rules in mind:

"In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible. [Citations omitted.]" KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997).

Statutory Provisions of Kansas Act Against Discrimination

The KAAD seeks to end discrimination by reason of race, religion, color, sex, disability, national origin, and ancestry, in all employment relations, in housing, and in all places and public accommodations covered by the Act. K.S.A. 44-1001. It is unlawful under the KAAD for an employer, because of the disability of an employee, to discharge or otherwise discriminate against the employee in the terms or conditions of employment. K.S.A. 44-1009(a)(1).

Within 6 months after an alleged discriminatory act or after the last in a pattern of such acts, individuals claiming violations of the KAAD may file a complaint with the KHRC. The KHRC serves a copy of the complaint on the party accused of violating the act and then investigates the allegations. K.S.A. 44-1005(a), (d), and (i). The commissioner assigned to a case then determines if probable cause exists to credit the allegations. Where the KHRC makes a finding of "no probable cause," the claimant is served notice, and such finding is not subject to judicial review. K.S.A. 44-1005(d); Van Scoyk v. St. Mary's Assumption Parochial School, 224 Kan. 304, Syl. ¶ 1, 580 P.2d 1315 (1978).

If there is a finding of probable cause, the commissioner endeavors to end the discriminatory practice by conference and conciliation. K.A.R. 44-1005(e). If no agreement is reached, the KHRC commences a hearing in accord with the Kansas Administrative Procedures Act (KAPA). K.S.A. 44-1005(f).

The officer presiding at such hearing is to render an initial order on the issue of whether the employer engaged in an unlawful employment practice. If an unlawful practice occurred, the officer is to render an order providing for remedial action or compensation as warranted and permitted by the act. K.S.A. 44-1005(k). If the officer determines no unlawful practice occurred, the officer is to render an order dismissing the complaint. K.S.A. 44-1005(m). Either of the above initial orders shall be reviewed by the KHRC, and a copy of the final order shall be served on the parties. K.S.A. 44-1005(n).

Any party dissatisfied with any order or decision of the KHRC "may petition for reconsideration in accordance with the provisions of K.S.A. 77-529" within 15 days of the service of the final order, and such a petition is a prerequisite to judicial review of any order or decision of the KHRC. K.S.A. 44-1010; K.S.A. 77-529(a). Any action of the KHRC is reviewable under the Act for Judicial Review and Civil Enforcement of Agency Actions with certain specified exceptions not relevant here. K.S.A. 44-1011.

An aggrieved individual may also bring an independent cause of action in the district court based on the rights and prohibitions of the KAAD once he or she has exhausted administrative remedies. Van Scoyk, 224 Kan. at 306.

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