Smith v. United Technologies, Essex Group, Inc., Wire and Cable Div., 59029

• Citation: 731 P.2d 871,240 Kan. 562
• Decision Date: 16 January 1987
• Docket Number: No. 59029,59029
• Parties: , 42 Empl. Prac. Dec. P 36,884 Donald SMITH, Appellant/Cross-Appellee, v. UNITED TECHNOLOGIES, ESSEX GROUP, INC., WIRE AND CABLE DIVISION, Appellee/Cross- Appellant.
• Court: United States State Supreme Court of Kansas

Page 871

731 P.2d 871

240 Kan. 562, 42 Empl. Prac. Dec. P 36,884

Donald SMITH, Appellant/Cross-Appellee, v. UNITED TECHNOLOGIES, ESSEX GROUP, INC., WIRE AND CABLE DIVISION Appellee/Cross- Appellant.

No. 59029.

Supreme Court of Kansas.

Jan. 16, 1987.

Syllabus by the Court

1. Opinion testimony by a lay witness is admissible where it is rationally based on the perception of the witness.

2. Whether a witness is qualified to testify as to his or her opinion is to be determined by the trial court in the exercise of its discretion. The exercise of that discretion is not subject to review except in cases of abuse.

3. When unaccompanied by a claim for reinstatement, a claim for back pay in a 42 U.S.C. § 1981 (1982) action is a legal rather than an equitable claim and properly submissible to a jury.

4. Although an action under 42 U.S.C. § 1981 (1982) is an action for injury to the rights of another not arising under contract and, hence, subject to the two-year statute of limitations set forth in K.S.A. 60-513(a)(4), it was not an abuse of discretion to admit testimony relative to statements made and occurrences transpiring more than two years prior to the filing of the action under the circumstances herein.

5. In this case, evidence of a claim seeking actual and punitive damages under 42 U.S.C. § 1981 (1982) based upon retaliation for the filing of complaints with the Kansas Commission on Civil Rights is held sufficient for submission to a jury. Subsequent verdicts for actual and punitive damages are upheld against challenges based upon the sufficiency of the evidence supporting them and the size of the awards.

6. No tort action for retaliatory discharge for filing a workers' compensation claim exists where the employee is adequately protected contractually from such discharge by a collective bargaining agreement. Following Cox v. United Technologies, 240 Kan. 95, 727 P.2d 456 (1986).

7. Under the totality of the circumstances herein, the district court did not abuse its discretion in refusing to award attorney fees under 42 U.S.C. § 1988 (1982).

Frederick J. Patton, II, of Patton & Patton, Topeka, argued the cause and was on briefs, for appellant/cross-appellee.

Thomas H. Bornholdt of Bornholdt, Landeck & Owens, Overland Park, argued the cause and was on brief, for appellee/cross-appellant.

McFARLAND, Justice:

This is an action by Donald Smith against his former employer, United Technologies, Essex Group, Inc., seeking damages arising from his discharge from employment. The jury found Smith had been discharged in retaliation for his filing of charges with the Kansas Commission on Civil Rights (KCCR) and awarded him $30,000 in actual damages and $25,000 in punitive damages. In its cross-appeal, United Technologies challenges the jury's verdict in a number of respects. Prior to trial, the district court entered summary judgment against Smith on his claim predicated upon his termination being the result of retaliation for having filed a workers' compensation claim. After trial, the district court denied Smith's motion for attorney fees under 42 U.S.C. § 1988 (1982). Smith appeals from these two adverse determinations.

The undisputed factual background may be summarized as follows. Plaintiff Donald Smith is a black man who was employed by United Technologies, Essex Group, Inc., in 1979, as a rod mill operator. Shortly after being hired, plaintiff injured his back, filed a workers' compensation claim, received a disability rating, and returned to work with a medical release. In July 1979, plaintiff filed a charge with the KCCR, alleging racial discrimination. The KCCR found the charge lacked probable cause. In June 1981, plaintiff filed a second charge with the KCCR, alleging employer retaliation. In May of 1981, plaintiff reinjured his back, necessitating a 15 1/2 week recuperative period during which he did not work. Upon his return to work, plaintiff was assigned to perform janitorial duties. Disgruntled, plaintiff filed a union grievance because he was qualified as a rewinder and wanted to work in that capacity. As a result, he was given a rewinder's job and was paid the difference between janitor's and rewinder's pay for that period. In November 1981, plaintiff, having aggravated his back injury and, thus, being unable to do the rewinder's job, filed a workers' compensation claim. After being under a doctor's care until December 14, 1981, plaintiff returned to work under a 50-pound weight restriction. The personnel director said he would put plaintiff on light duty. Plaintiff was returned to work as a rod mill operator. Later, when the rod mill shut down, plaintiff was moved to a rewinder's job. His back injury and concomitant weight restriction prevented plaintiff from performing the rewinder's duties adequately. He filed a grievance through his union. He was subsequently laid off on January 11, 1982. When the mill reopened, plaintiff did not return to work. The workers' compensation claim he had earlier filed was settled on April 9, 1982. Thirteen days later, Smith was discharged on the stated ground that he had failed to report for work following the conclusion of his workers' compensation claim. Plaintiff filed a grievance with his union because of his termination.

Another employee, Terry Cox, was similarly situated, having been discharged following settlement of a workers' compensation claim. Like Smith, Cox grieved his termination. Both employees were members of Local Union No. 851, United Rubber, Cork, Linoleum and Plastic Workers of America, and their employment was covered by a collective bargaining agreement. Said agreement contained the provision that an employee would not be terminated except for proper cause and provided grievance procedures, including binding arbitration, for the resolution of complaints and disputes.

Plaintiff Smith's grievance was concluded first. The arbitrator found that Smith's discharge was unjust and restored him to duty, but denied back pay because Smith had failed to mitigate his position after termination. Cox subsequently settled his grievance on the same basis as the arbitrator's decision relative to Smith and was restored to duty.

On April 20, 1983, plaintiff and Cox brought this action against defendant employer, alleging, inter alia, that they had been discharged in retaliation for filing a workers' compensation claim, and had been victims of racial discrimination and retaliation for having filed complaints with the KCCR, all in violation of 42 U.S.C. § 1981 (1982).

Defendant subsequently filed a motion for summary judgment with respect to all claims advanced by both plaintiffs. On June 4, 1984, the trial court sustained defendant's motion on all counts except the civil rights claims under § 1981. Plaintiffs proceeded to trial on these § 1981 claims. At a jury trial, Cox lost on his claims. Plaintiff Smith lost on his claim of racial discrimination, but received judgment on his claim for unlawful retaliation for having filed the KCCR complaints. He was awarded $30,000 actual damages and $25,000 in punitive damages.

Plaintiff filed a motion for attorney fees pursuant to § 1988. After a hearing, the district court denied the motion. Plaintiff appealed from the trial court's summary judgment ruling with respect to the issue of discharge in retaliation for filing a workers' compensation claim and from the court's denial of attorney fees. Defendant cross-appealed.

EVIDENTIARY RULINGS

We shall begin with the issues raised in defendant's cross-appeal. The first three of these issues are challenges to evidentiary rulings of the trial court. For its first such issue, defendant contends the trial court erred in admitting certain opinion testimony of lay witnesses.

Specifically, defendant argues that this testimony lacked adequate foundation under K.S.A. 60-456(a), which provides:

"If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony."

In Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), this court discussed lay opinion testimony as follows:

"Whether a witness is qualified to testify as to his opinion is to be determined by the trial court in the exercise of its discretion. The exercise of that discretion is not subject to review except in cases of abuse. Hampton v. State Highway Commission, 209 Kan. 565, Syl. p 10, 498 P.2d 236 (1972). This court has held that lay witness opinions are admissible even though they embrace ultimate issues. Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971). The weight to be given to lay opinion testimony, as well as the weight to be accorded expert testimony, is for the jury to determine. State v. Shultz, 225 Kan. 135, 137, 587 P.2d 901 (1978)." 232 Kan. at 31, 651 P.2d 585.

Opinion testimony by a lay witness is admissible where it is rationally based on the perception of the witness. Schmeck v. City of Shawnee, 232 Kan. 11, Syl. p 9, 651 P.2d 585. When it is not shown that the witness had sufficient knowledge on which to base an opinion, the opinion testimony is so conjectural it lacks probative value and may be properly excluded by the trial court. State v. Richard, 235 Kan. 355, 681 P.2d 612 (1984); State v. Amodei, 222 Kan. 140, 563 P.2d 440 (1977).

The objected-to opinion testimony primarily concerns statements made to the witnesses by members of defendant's management and acts done by such managerial personnel in view of the witnesses from which the witnesses concluded that the involved managerial personnel discriminated against black people and, particularly, black people who filed civil rights complaints. It is to be recalled that racial discrimination was an issue throughout trial although the jury did not find in favor of plaintiff on...