Woods v. Midwest Conveyor Co., Inc.

• Decision Date: 22 July 1982
• Docket Number: No. 53357,53357
• Parties: , 46 Fair Empl.Prac.Cas. (BNA) 125, 30 Empl. Prac. Dec. P 33,299 William C. WOODS, Appellee, v. MIDWEST CONVEYOR COMPANY, INC., et al., Appellants.
• Court: Kansas Supreme Court

Page 234

648 P.2d 234

231 Kan. 763, 46 Fair Empl.Prac.Cas. (BNA) 125,

30 Empl. Prac. Dec. P 33,299

William C. WOODS, Appellee, v. MIDWEST CONVEYOR COMPANY, INC., et al., Appellants.

No. 53357.

Supreme Court of Kansas.

July 22, 1982.

Syllabus by the Court

1. A charge of discrimination is required by K.S.A. 44-1005 to be filed with the Kansas Commission on Civil Rights within six months after the alleged act of discrimination occurred unless the act complained of constitutes part of a continuing pattern or practice of discrimination, in which event the charge must be filed within six months after the last act of discrimination occurred.

2. The burden of proof in a proceeding under the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq., is on the complainant to prove by a preponderance of the evidence that the respondent is guilty of a discriminatory practice. Initially, the complainant must present a prima facie case of discrimination. Then the burden of going forward with the evidence shifts to respondent and this burden may be discharged by evidence of a legitimate, nondiscriminatory reason for respondent's conduct. Once the respondent discharges this obligation, the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by respondent were merely a pretext for discrimination.

3. The power to adopt rules or regulations is administrative in nature, not legislative, and to be valid must be within the authority conferred. An administrative rule and regulation which goes beyond that which the legislature has authorized, or which violates the statute, or which alters, extends, or limits the source of its legislative power, is void.

4. The Kansas Commission on Civil Rights is not authorized under the Kansas Acts Against Discrimination, K.S.A. 44-1001 et seq., to order an employer to pay an employee damages for pain, suffering, and humiliation arising from employer discrimination.

5. In an action alleging discriminatory employment practices, it is held : (1) The trial court did not err in considering instances of discrimination occurring more than six (6) months prior to the filing of the discrimination complaint; (2) the trial court did err in requiring the respondent to prove by clear and convincing evidence that its actions were justified or nondiscriminatory; and (3) the Kansas Acts Against Discrimination do not authorize the Kansas Commission on Civil Rights to allow damages for pain, suffering, and humiliation.

John J. Bukaty, Jr., of Bukaty & Bukaty, Kansas City, argued the cause, and Michael F. Delaney, of Spencer, Fane, Britt & Browne, Kansas City, was with him on the brief for appellants.

Brandon L. Myers, Kansas Commission on Civil Rights, Topeka, argued the cause and was on the brief for appellee.

FROMME, Justice:

William C. Woods filed a complaint with the Kansas Commission on Civil Rights September 6, 1977, alleging differential treatment of white and black employees by Midwest Conveyor Company, Inc. and improper termination of his employment because of his race. A hearing was held before the Commission January 21, 1980. The hearing examiner found in favor of Woods and ordered Midwest to pay him back wages in the amount of $23,700.90 and damages for pain, suffering, and humiliation in the amount of $12,000.00. On appeal the district court tried the case de novo from the transcript of the hearing before the Commission and affirmed, adopting the Commission's findings of fact and conclusions of law. Midwest appeals. We reverse and remand with directions.

A highly summarized statement of facts is as follows:

The complainant was employed by respondent. He was a black male and was employed at entry level as a laborer. He received job training and was promoted twice until he held the classification of painter, second class, at the end of three years. During a reduction in work force another employee with more seniority "bumped" him from painter second class to the classification of production operator, which position he occupied until the time of his termination a month and a half later. Prior to termination complainant chose not to join the labor union but nevertheless took advantage of grievance procedures through union channels on numerous occasions.

The company maintained an absence control policy and points were assessed for absences from work. Complainant received disciplinary action on a number of occasions: three verbal warnings, three written warnings, and three suspensions. He received further disciplinary action for two instances of using abusive language toward supervisors. When complainant was notified of termination a confrontation between himself and the company personnel manager occurred, at which time the manager was threatened with a wrench by complainant. The manager was restrained from leaving the room, and further restrained from using the telephone to call the police. However, there was evidence of unequal treatment of whites and blacks. White employees were not held to the absence control policy and instances of absences from work and tardiness of whites were overlooked by the supervisors.

In charging discrimination complainant alleged harassment by the foreman, failure to provide equal training for black employees, disparate disciplinary action and denial of seniority rights. The KCCR found discrimination by the employer.

Appellant first contends it was inappropriate for the trial court to consider any instances occurring more than six months prior to September 6, 1977, when the complaint was filed. K.S.A. 44-1005 requires a charge of discrimination be filed with the Commission "within six (6) months after the alleged act of discrimination, unless the act complained of constitutes a continuing pattern or practice of discrimination in which event it will be from the last act of discrimination."

It is clear from the facts Woods alleged a continuing pattern of discrimination against him and other black employees. Further, prior instances are relevant to the court's determination of whether the ultimate termination was discriminatory. We hold a charge of discrimination is required by K.S.A. 44-1005 to be filed with the Kansas Commission on Civil Rights within six months after the alleged act of discrimination occurred unless the act complained of constitutes part of a continuing pattern or practice of discrimination, in which event the charge must be filed within six months after the last act of discrimination occurred. The charge was filed within six months of the last act of discrimination. This issue is without merit.

Appellant next contends the trial court erred in placing the burden of proof. K.S.A. 44-1009 states:

"(a ) It shall be an unlawful employment practice:

"(1) For an employer, because of the race, religion, color, sex, physical handicap, national origin or ancestry of any person to refuse to hire or employ, or to bar or to discharge from employment such person or to otherwise discriminate against such person in compensation or in terms, conditions, or privileges of employment; or to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation without a valid business motive."

The burden of proving an unlawful employment practice falls on the complainant. In discussing the burden of proof the district court stated "5. With respect to the burden of proof, it is incumbent upon the Complainant in the first instance to establish a prima facie case and thereafter in order to rebut the prima facie showing, the Respondent is required by clear and convincing evidence to establish that its acts or conduct were justified or nondiscriminatory. If the Respondent is successful in rebutting the prima facie showing of the Complainant, the Complainant is granted the opportunity to show by competent evidence that the acts and conduct of the Respondent were a pure pretext."

Later the trial judge ruled Woods had established a prima facie case but Midwest had not met the burden of showing by clear and convincing evidence its actions were justified or nondiscriminatory.

Appellant claims it was error to require it to show by clear and convincing evidence its acts were justified or nondiscriminatory. It cites Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), a case dealing with Title VII of the Federal Civil Rights Act, 42 U.S.C. § 2000e et seq. In the opinion Justice Powell wrote for a unanimous court:

"In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (93 S.Ct. 1817, 36 L.Ed.2d 668) (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' Id., at 802 (93 S.Ct. at 1824). Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804 (93 S.Ct. at 1825).

"The nature of the burden that shifts to the defendant should be understood in light of the plaintiff's ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, n. 2 (99 S.Ct. 295, 296, n. 2, 58 L.Ed.2d 216) (1978); id., at 29 (99 S.Ct., at 297) (Stevens,...