Schall v. Wichita State University

• Decision Date: 09 June 2000
• Docket Number: No. 83,264.,83,264.
• Citation: 7 P.3d 1144,269 Kan. 456
• Parties: RICHARD J. SCHALL, Appellant, v. WICHITA STATE UNIVERSITY, Appellee.
• Court: Kansas Supreme Court

269 Kan. 456

7 P.3d 1144

RICHARD J. SCHALL, Appellant, v. WICHITA STATE UNIVERSITY, Appellee.

No. 83,264.

Supreme Court of Kansas.

Opinion filed June 9, 2000.

Sean M. Dwyer, of Law Office of Sean M. Dwyer, of Wichita, argued the cause and was on the brief for appellant.

Wm. Scott Hesse, assistant attorney general, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee. The opinion of the court was delivered by

ABBOTT, J.:

The trial court granted summary judgment to the defendant, Wichita State University (WSU), and against the plaintiff, Richard J. Schall, in an action against WSU, alleging breach of contract as well as claims made pursuant to the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Schall served as the clinical supervisor/coordinator for the Physicians Assistant Department (PAD) at WSU from August 1993, until he was terminated in February 1997, as a result of chronic pain secondary to cervical disc disease. Plaintiff's appeal was transferred to this court pursuant to K.S.A. 20-3018(c).

Schall was hired as a full-time salaried, exempt, clinical supervisor/coordinator for the PAD at WSU in August 1993. Marvis Lary, Ph.D., was Schall's direct supervisor during the entire time he was employed by WSU. Schall was the only clinical supervisor for the PAD at WSU. Schall's job duties required that he

"• IDENTIFY CLINICAL ROTATION SITES IN AREAS OF NEED

• SERVE AS DEPARTMENT LIAISON TO CLINICAL PRECEPTORS

• IMPLEMENT ALL CORRESPONDENCE TO PRECEPTORS

• SCHEDULING

• CONFIRMATION LETTERS

• STUDENT EVALUATION FORMS

• LEARNING OBJECTIVES

• PLAN ROTATION SCHEDULE FOR STUDENTS

• MAKE CLINICAL SITE VISITS

• PROCTOR SENIOR CASE PRESENTATIONS

• SERVE AS ADVISOR ON SENIOR RESEARCH PAPERS

• PLAN AND IMPLEMENT ANNUAL JOB FAIR

• IMPLEMENT SENIOR REVIEW WEEKS I & II

• MAINTAIN CURRENT AFFILIATION AGREEMENTS ON ALL PRECEPTOR PHYSICIANS AND MEDICAL FACILITIES

• OVERSEE FIELD COORDINATOR PROJECT

• [GIVE] STUDENT EVALUATIONS & GRADES

• [SERVE AS] EDITOR OF DEPARTMENT JOB LISTINGS"

There is no other position like the clinical supervisor/coordinator for the PAD in Kansas. The supervisory position is dissimilar from regular faculty positions as it required significant travel to various sites around Kansas, especially to rural areas. Schall's employment was governed by WSU's unclassified professional personnel policy and procedures.

Schall visited with his physician, Dr. Robert Sweet, on April 12, 1996, after he began experiencing pain in his back, neck, shoulder, and arm. On June 20, 1996, Schall had a diskectomy of the C5-C6, C6-C7, and fusion at that level. Schall was off work for 3 weeks following the surgery. Although Schall continued to have pain, he continued to work after the surgery. Schall had difficulty typing and took Percocet to alleviate the pain.

On September 12, 1996, Schall consulted Dr. Eustaquio O. Abay about his severe pain. After the September 12 consultation, Schall worked sporadically but did not work full-time. Schall was unable to drive for more than 30 minutes outside Wichita to make site visits with senior students as required by his job. Schall continued to have difficulty typing long documents because of the pain.

On October 16, 1996, Dr. Abay performed a decompressive laminectomy, C6-C7, with a foraminotomy of the C7 roots bilaterally, "sitting position" surgery on Schall. Schall's hospital stay was 7 or 8 days. Other faculty attempted to fill in for Schall while he was recovering from surgery. Schall worked on November 18, 19, and December 10, 1996. Schall never worked again, other than those days after his October 16 surgery. On November 26, 1996, Dr. Abay released Schall to return to work. Schall never gave the work release to Lary.

On December 5, 1996, Dr. Sweet wrote a letter to Frankie M. Brown, Assistant Director of Human Resources at WSU, requesting that Schall be granted a medical leave of absence, which was granted.

On January 9, 1997, Lary wrote Schall and requested that he return to work full time on or before February 3, 1997. Schall did not return to work on February 3. On February 3, 1997, Lary wrote Schall another letter and gave Schall a deadline to return to work full time on February 10, 1997. Schall instead requested that he be allowed to return to work on a part-time basis, working approximately 20 to 30 hours per week for 6 to 8 weeks and then full time thereafter. Lary informed the PAD of Schall's proposal to work on a part-time basis. On February 11, 1997, the four other PAD faculty members wrote Lary a letter expressing their concern about Schall's request to work part time. The members described the PAD as "dysfunctional" as a result of Schall's failure to perform his job duties. The members told Lary that they were unable to keep up with their own workload as they had to assume some of the job responsibilities that Schall had not been able to complete. The members further expressed an opinion that Schall would not be able to adequately satisfy the requirements of his job if he were to work part time.

On February 12, 1997, Lary sent Schall a letter immediately terminating his employment. Lary was concerned that Schall would no longer be able to provide the attention necessary to adequately supervise the PAD and that the quality of the education of the senior students was at risk as was the next year's class placements.

Schall filed an internal grievance following his termination. After hearing from Schall and Lary, the grievance committee recommended that "Schall should be paid part-time wages from February 14, 1997 through June 30, 1997," which is the end of the contract period at WSU. Schall appealed to the Senate Grievance Review Committee, which recommended that "Schall receive a maximum amount of one month's salary, computed at his most recent pay level, plus a dollar amount equal to 6 months of his personal health insurance premium." WSU President Eugene Hughes adopted the recommendation of the Senate Grievance Review Committee's decision. In his written decision, President Hughes did not state which agency officer was to receive service of a petition for judicial review on behalf of the agency. Schall has never received any money from WSU.

I. IMMUNITY

Because WSU is an arm of the State, WSU argues that the Eleventh Amendment to the United States Constitution provides immunity on both the ADA and FMLA claims. The Eleventh Amendment reads: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the Unites States by citizens of another State, or by Citizens or Subjects of any Foreign State."

Historically, courts have held that the Eleventh Amendment does not apply to suits brought in state courts. The United States Supreme Court in Hilton v. South Carolina Public Railways Commission, 502 U.S. 197, 116 L. Ed.2d 560, 112 S. Ct. 560 (1991), considered this issue after a plaintiff had brought a Federal Employers Liability Act (FELA) claim in state court against the defendant after being injured as a result of the defendant's negligence. In reversing the South Carolina Supreme Court, the Hilton Court noted that the Supreme Court has stated "on many occasions" that the Eleventh Amendment does not apply to actions brought in state courts. 502 U.S. at 204-05.

This court, in Americare Properties, Inc. v. Whiteman, 257 Kan. 30, 891 P.2d 336 (1995), also addressed the issue of Eleventh Amendment immunity in state courts when we considered a 42 U.S.C. § 1983 claim brought by the plaintiff. We held that the Eleventh Amendment prohibits suits against sovereign states in federal court but that it had no application to suits brought in state court. 257 Kan. at 51. See also Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 513, 646 P.2d 1078 (1982) (the Eleventh Amendment does not apply to suits brought in state courts).

Other courts have similarly held. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 63-64, 105 L. Ed.2d 45, 109 S. Ct. 2304 (1989) (holding that the Eleventh Amendment does not apply to state courts); Maine v. Thiboutot, 448 U.S. 1, 9 n. 7, 65 L. Ed.2d 555, 100 S. Ct. 2502 (1980) (actions brought in state courts do not present an Eleventh Amendment problem as the Amendment only applies to federal courts); McGregor v. Goord, 180 Misc.2d 945, 947, 691 N.Y. S.2d 875 (1999) (holding that the Eleventh Amendment does not provide immunity for a state when an action is brought in state court, thereby allowing the court to consider the plaintiff's FMLA claim); Ahern v. State of New York, 244 App. Div. 2d 7, 11, 676 N.Y.S.2d 232 (1998) (quoting Hilton and holding that the Eleventh Amendment does not apply to actions in state courts); Whittington v. State Dept. of Public Safety, 126 N.M. 21, 23, 966 P.2d 188 (1998) (quoting Hilton and holding that the Eleventh Amendment did not give the Department of Public Safety immunity from suit in state court); Bunch v. Robinson, 122 Md. App. 437, 456, 712 A.2d 585 (1998) (referencing Will and holding that the trial court erred when it applied the Eleventh Amendment to the case as the action was brought in state court and not federal court); and Jacoby v. Arkansas Dep't of Education, 331 Ark. 508, 513, 962 S.W.2d 773 (1998) (holding that the Eleventh Amendment does not apply to actions brought in state courts as the Hilton Court "makes abundantly clear").

The United State Supreme Court in Alden v. Maine, 527 U.S. 706, 144 L. Ed.2d 636, 119 S. Ct. 2240 (1999), however, recently allowed the State of Maine to assert immunity even though the action was brought in state court. In Alden, the plaintiffs, a group of probation officers, filed suit against the State of Maine, alleging that the State had violated the overtime provisions of the Fair Labor Standards Act (FLSA). The suit was originally brought in federal court, but when it...