Scott v. Topeka Performing Arts Center, Inc.

• Decision Date: 01 July 1999
• Docket Number: No. 99-4002-SAC.,99-4002-SAC.
• Citation: 69 F.Supp.2d 1325
• Parties: Debra L. SCOTT, Plaintiff, v. TOPEKA PERFORMING ARTS CENTER, INC., and Harold Hansen, Defendants.
• Court: U.S. District Court — District of Kansas

69 F.Supp.2d 1325

Debra L. SCOTT, Plaintiff, v. TOPEKA PERFORMING ARTS CENTER, INC., and Harold Hansen, Defendants.

No. 99-4002-SAC.

United States District Court, D. Kansas.

July 1, 1999.

Peter R. Bulmer, Jackson, Lewis, Schnitzler & Krupman, Chicago, IL, Michael T. Graham, Jackson, Lewis, Schnitzler & Krupman, Chicago, IL, Craig M. Hoetger, Jackson, Lewis, Schnitzler & Krupman, Chicago, IL, for defendant.

J. Franklin Hummer, Davis, Unrein, Hummer, McCallister, Biggs & Head, L.L.P., Topeka, KS, for plaintiff.

Ron D. Martinek, Gehrt & Roberts, Chartered, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

The defendants, Topeka Performing Arts Center, Inc. ("TPAC") and Harold Hansen, move to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) all claims asserted in paragraph six of the plaintiff's complaint. (Dk.6). The defendants argue: (1) there is no cognizable federal common law claim for retaliatory discharge; (2) the remedies available under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., preclude a state common law claim for retaliatory discharge; and (3) the plaintiff's claim does not implicate a "public policy" pertaining to public health, safety, and the general welfare. The plaintiff opposes the motion after first clarifying that she is making no claim under federal common law.

The defendants direct their motion to paragraph six of the plaintiff's complaint, which reads: "Harold Hansen, individually and/or in the scope of his employment with TPAC, wrongfully terminated Plaintiff for her assertion of her employment rights contrary to the public policy of the State of Kansas and the United States of America." (Dk.1, Attach.A). Though paragraph six fails to identify or describe the public policy at issue, paragraph five of the complaint does refer to the legal source of her employment rights: "Plaintiff was terminated because of her assertion of her believed rights under the Fair Labor Standards Act. Plaintiff's termination was in retaliation of the assertion of her rights." (Dk.1, Attach.A). Neither paragraph five nor paragraph six alleges what the plaintiff asserted as her "believed rights" under the FLSA. In short, paragraph five alleges a FLSA claim for retaliation pursuant to 29 U.S.C. § 215(a)(3), and paragraph six purports to allege a state common-law claim of retaliatory discharge based upon the plaintiff's assertion of her "believed rights" under the FLSA.

Standards Governing Motion to Dismiss

A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993); see Hospice of Metro Denver v. Group Health Ins., 944 F.2d 752, 753 (10th Cir. 1991) ("Dismissal of a case pursuant to Fed.R.Civ.P. 12(b)(6) requires the legal determination that the plaintiff can prove no set of facts in support of his claim to entitle him to relief.") (citations omitted); Thatcher Enterprises v. Cache County Corp., 902 F.2d 1472 (10th Cir.1990) ("Under Rule 12(b)(6), dismissal is inappropriate unless plaintiff can prove no set of facts in support of his claim to entitle him to relief."). The Tenth Circuit has observed that the federal rules "`erect a powerful presumption against rejecting pleadings for failure to state a claim.'" Maez v. Mountain States Tel. and Tel., Inc., 54 F.3d 1488, 1496 (10th Cir.1995) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986)).

A court judges the sufficiency of the complaint accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). It is not the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir.1989).

Governing Kansas Law

Kansas remains an at-will employment jurisdiction, in which employment is terminable at the will of the employee or employer in the absence of an express or implied contract. Flenker v. Willamette Industries, Inc., 266 Kan. 198, 200, 967 P.2d 295 (1998). The Kansas Supreme Court has recognized certain exceptions to the at-will employment doctrine that are based on public policy considerations. For example, in Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988), the plaintiff sued alleging she had been discharged in retaliation for reporting her employer's illegal or fraudulent billing practices under the Medicaid program. The Palmer court first recognized the tort of retaliatory discharge for whistle-blowing. Ortega v. IBP, Inc., 255 Kan. 513, 517, 874 P.2d 1188 (1994). Besides listing the different Kansas statutes that protected at-will employees from retaliatory discharge "for reporting certain types of abuses," 242 Kan. at 896, 752 P.2d 685, the court in Palmer looked specifically at the state¹ "public policy involved in the implementation of the Medicaid program" as reflected in Kansas statutes. 242 Kan. at 898-99, 752 P.2d 685. The court concluded: "termination of an employee in retaliation for the good faith reporting of a serious infraction of such rules, regulations, or the law by a co-worker or an employer ... is an actionable tort." 242 Kan. at 900, 752 P.2d 685; see Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 135, 815 P.2d 72 (1991) ("Conduct of an employer violative of public policy and giving rise to a cause of action has been recognized when an employee is discharged in retaliation ... for exercising rights under labor-management relations statutes, ..., and for various other violations of public policy interests.").²

The Kansas Supreme Court recently held, in response to a certified question, that the statutory remedy provided by the Occupational Safety and Health Administration ("OSHA") § 11(c) [29 U.S.C. § 660(c)] for employees who are discharged in retaliation for filing complaints under that federal statute is not an adequate alternative remedy as to preclude a common-law retaliatory discharge claim under Kansas law. Flenker v. Willamette Industries, Inc., 266 Kan. 198, 199, 967 P.2d 295 (1998). The plaintiff Flenker alleged the defendant fired him in retaliation for reporting unsafe working conditions. The Flenker court framed their answer and analysis around the its prior decision of Coleman v. Safeway Stores, Inc., 242 Kan. 804, 752 P.2d 645 (1988):

Coleman overruled Cox v. United Technologies, 240 Kan. 95, 727 P.2d 456 (1986), Smith v. United Technologies, 240 Kan. 562, 731 P.2d 871 (1987), and Armstrong v. Goldblatt Tool Co., 242 Kan. 164, 747 P.2d 119 (1987). The overruled cases involved the interrelationship of Kansas tort law and law of labor union contracts. In each of the three overruled cases: (1) a discharged employee was covered by a collective bargaining agreement, (2) the agreement prohibited the employee's discharge except for just cause, and (3) the employee was held not to have a cause of action in tort for wrongful discharge. Coleman reasoned that a retaliatory discharge action for filing a workers compensation claim is based on a violation of state public policy independent of a collective bargaining agreement. 242 Kan. 804, Syl. ¶ 1, 752 P.2d 645. Coleman also concluded that the arbitration procedures provided for in the collective bargaining agreement were a "limited remedy" and might not result in the employee's right being "adequately protected." 242 Kan. at 813-14, 752 P.2d 645.

Flenker, 266 Kan. at 202, 967 P.2d 295. The court extended the Coleman ruling beyond the collective bargaining context to include "employees protected by statutory schemes such as OSHA." 266 Kan. at 203-04, 967 P.2d 295. The Flenker court concluded that "whistle-blowing is protected by a clearly declared public policy" enunciated in Flenker, 266 Kan. at 204, 967 P.2d 295.

In answering the certified question, the court in Flenker discussed the alternative remedies doctrine in these terms:

The alternative remedies doctrine at issue here, referenced sometimes as preclusion, is a substitution of law concept. Under the alternative remedies doctrine, a state or federal statute would be substituted for a state retaliation claim if the substituted statute provides an adequate alternative remedy. Bair v. Peck, 248 Kan. 824, 838, 811 P.2d 1176 (1991). Masters v. Daniel, Intern. Corp., 917 F.2d 455, 457 (10th Cir.1990), relied on Polson [v. Davis, 895 F.2d 705 (10th Cir.1990)]. The question to ask in resolving recognition of a state tort claim for retaliatory discharge is whether the statutory remedy is adequate and thus precludes the common-law remedy. 917 F.2d at 457 (held the Energy...