Wagher v. Guy's Foods, Inc.

• Decision Date: 09 December 1994
• Docket Number: No. 68980,68980
• Parties: Deborah A. WAGHER, Appellee, v. GUY'S FOODS, INC., Appellant.
• Court: Kansas Supreme Court

Page 1197

885 P.2d 1197

256 Kan. 300

Deborah A. WAGHER, Appellee, v. GUY'S FOODS, INC., Appellant.

No. 68980.

Supreme Court of Kansas.

Dec. 9, 1994.

Syllabus by the Court

1. Sex discrimination claims under the Kansas Act Against Discrimination are subject to the three-year limitation of K.S.A. 60-512(2).

2. K.S.A. 44-1011(b)(3) is interpreted to be a "statute of the state" within the meaning of K.S.A. 60-238(a) and thus gives the right of trial by jury where demand is made as required by K.S.A. 60-238(b).

3. In an action alleging sex discrimination under the Kansas Act Against Discrimination for failure to hire, the record is examined and it is held: The district court did not err in (1) holding that Wagher's action was not time barred, (2) denying Guy's Foods' motion for summary judgment in which it contended that relief was precluded under the Kansas Act Against Discrimination due to its anti-nepotism policy, and (3) granting Wagher a jury trial. The district court erred in not granting Guy's Foods' motion for judgment notwithstanding the verdict as to the award of $27,000 for front pay.

Susan P. Selvidge, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause and was on the briefs, for appellant.

Marc A. Powell, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and Donald N. Peterson II, of the same firm, was with him on the brief, for appellee.

ALLEGRUCCI, Justice:

This is a sex discrimination claim under the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq., by Deborah Wagher against Guy's Foods, Inc., (Guy's Foods) based on failure to hire. The district court denied Guy's Foods' motion for summary judgment on two issues--that suit was barred by the statute of limitations and that Wagher was ineligible for the job due to Guy's Foods' nepotism policy. The case was tried to a jury, which awarded back pay, front pay, and damages for pain and suffering to Wagher. Guy's Foods appeals.

In September and December 1988, Deborah Wagher submitted applications to Guy's Foods for the position of route sales driver. A route sales driver is responsible for distribution of Guy's Foods' snack products on a preestablished route and for sales development within that territory.

There were openings for route sales drivers in September and December 1988, but Wagher was not hired. Male drivers were hired who had applied during the same period. It was the position of Guy's Foods that the men were hired because they had experience in route sales. It was the position of Wagher that she was not hired because she is a woman.

In December 1988, Dale Tilford, the district sales manager for Guy's Foods, told Wagher that she was not hired because the district general manager, John Kenna, said he did not hire women. On February 1, 1989, Wagher filed a complaint with the Kansas Commission on Civil Rights (KCCR), now the Kansas Human Rights Commission (KHRC). On January 8, 1991, she filed a complaint in federal district court, seeking relief under Title VII and the KAAD. On April 9, 1991, the KHRC dismissed the investigation of Wagher's complaint pursuant to its policy to do so when a civil action based on the same allegations has been filed. On July 31, 1991, the federal district court entered summary judgment against Wagher on her Title VII claim on the ground that it was untimely and dismissed the state claim without prejudice for lack of pendent jurisdiction. On December 20, 1991, Wagher filed suit in state court.

The case was tried to a jury in July 1992. The district court entered judgment on the jury's verdict in the amount of $76,200. Back pay was awarded in the amount of $47,700; front pay was awarded in the amount of $27,000; and damages for pain, suffering, and humiliation were awarded in the amount of $1,500. Additional facts will be related as are necessary to the determination of the issues raised by the appellant.

Guy's Foods contends that Wagher's claim was barred by the statute of limitations. Wagher's claim is under the KAAD, which does not contain a statute of limitations for a civil suit. Guy's Foods filed a motion for summary judgment in the district court on the ground that Wagher's suit was barred by the two-year statute of limitations in K.S.A. 1993 Supp. 60-513. The district court denied the motion.

"Where the affirmative defense of the statute of limitations is asserted, summary judgment may be proper where there is no dispute or genuine issue as to the time when the statute commenced to run." Gilger v. Lee Constr., Inc., 249 Kan. 307, 311, 820 P.2d 390 (1991). In the present case, there is a legal issue about when the statute began to run, but there does not seem to be evidence in dispute on this point.

The district court noted that K.S.A. 60-512(2) provides a three-year limitations period for "[a]n action upon a liability created by a statute other than a penalty or forfeiture." Based on this court's decision in Flanigan v. City of Leavenworth, 232 Kan. 522, 657 P.2d 555 (1983), however, the district court applied the two-year limitations period of K.S.A. 1993 Supp. 60-513. Subsection (a)(4) provides that "[a]n action for injury to the rights of another, not arising on contract," shall be brought within two years. In Flanigan, which was an employment discrimination suit under the KAAD, the court stated: "[S]ince this action is not one for libel, slander, assault, battery, malicious prosecution, false imprisonment or an action upon a statutory penalty or forfeiture, the two-year statute of limitations of K.S.A. 60-513 is properly applied here. [Citations omitted.]" 232 Kan. at 530, 657 P.2d 555.

Based upon K.S.A. 60-510 and Pancake House, Inc. v. Redmond, 239 Kan. 83, 716 P.2d 575 (1986), the district court concluded that the two-year limitations period began to run on April 10, 1991, immediately following the KHRC's dismissal of its investigation. Wagher's suit was filed in December 1991, within two years of the dismissal date. The district court additionally considered the pendency of the administrative proceedings before the KHRC to have tolled the operation of the statute of limitations.

For Guy's Foods, the issue on appeal is not how long the limitations period is but when it began to run. It contends that the district court correctly concluded that Flanigan controls on the question of which statute of limitations applies and adds that the two-year statute of limitations is in accord with federal law. For Wagher, the length of the limitations period is the threshold issue. She argues that the applicable statute is K.S.A. 60-512(2) because this is an action upon a liability created by statute. She relies on Van Scoyk v. St. Mary's Assumption Parochial School, 224 Kan. 304, 306, 580 P.2d 1315 (1978), for the proposition that rights created in the KAAD may be enforced in court. She relies on Pecenka v. Alquest, 6 Kan.App.2d 26, 29, 626 P.2d 802, rev. denied 229 Kan. 670 (1981), as holding that rights created by the veterans' preference law, K.S.A. 73-201 et seq., may be enforced in court and that the applicable statute of limitations for such an implied cause of action is K.S.A. 60-512(2).

Wagher also cites Haag v. Dry Basement, Inc., 11 Kan.App.2d 649, 650, 732 P.2d 392, rev. denied 241 Kan. 838 (1987). She states that it is the most recent appellate court decision interpreting K.S.A. 60-512(2). Mable Haag recovered damages under the Kansas Consumer Protection Act (KCPA) from Dry Basement, Inc. The company argued that the action was barred either by the two-year statute of limitations for fraud actions, 60-513(3), or by the one-year statute of limitations for an action upon statutory penalty or forfeiture, K.S.A. 60-514(3). The court disagreed on the grounds that a common-law action for fraud is not the same as a violation of the KCPA and that the nature of Haag's action was to recover upon a liability created by statute rather than upon a statutory penalty. 11 Kan.App.2d at 651, 732 P.2d 392. In deciding that the three-year statute of limitations, K.S.A. 60-512(2), applied, the Court of Appeals stated:

"The appropriate inquiry to determine whether a liability is created by a statute (thus making K.S.A. 60-512 applicable) is whether liability for resultant damages would not arise but for the statute. Pecenka v. Alquest, 6 Kan.App.2d 26, 28, 626 P.2d 802, cert. denied 229 Kan. 670 (1981). We conclude that the liability imposed by the KCPA fits in this category.

"The KCPA gives consumers a private right of action against suppliers who commit deceptive and unconscionable practices. K.S.A. 50-623(b); K.S.A. 50-634(b). Although the actions upon which a consumer may establish liability under the KCPA sound largely in fraud, see K.S.A. 50-626, a critical element of a common-law fraud action, the intent to defraud, need not be proven. Willman v. Ewen, 230 Kan. 262, 267, 634 P.2d 1061 (1981) ('there may be liability even though the deception or unconscionable practice was performed innocently and without the intent to injure the consumer'); Bell v. Kent-Brown Chevrolet Co., 1 Kan.App.2d 131, 133, 561 P.2d 907 (1977).

Further, it has been written:

'In determining the elements of proof required in a damage suit under the [KCPA,] proof of the "deceptive trade practice" proscribed by the Act does not require proof of all the elements of a common law fraud.' Note, A New Kansas Approach to an Old Fraud, 14 Washburn L.J. 623, 635 (1975).

"We hold that because a supplier's liability to a consumer is created by the provisions of the Kansas Consumer Protection Act, the three-year statute of limitations for an action upon a liability created by statute, K.S.A. 60-512(2), applies to suits brought under the Act. That statute's three-year limitation has been clearly met in this case." 11 Kan.App.2d at 650, 732 P.2d 392.

The Court of Appeals looked to a North Carolina case for this statement of a general rule of construction applied to statutes of...