Wynn v. Boeing Military Airplane Co., Civ. A. No. 83-1983.

• Decision Date: 03 October 1984
• Docket Number: Civ. A. No. 83-1983.
• Citation: 595 F. Supp. 727
• Parties: Bruce A. WYNN, Plaintiff, v. BOEING MILITARY AIRPLANE COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

595 F. Supp. 727

Bruce A. WYNN, Plaintiff, v. BOEING MILITARY AIRPLANE COMPANY, Defendant.

Civ. A. No. 83-1983.

United States District Court, D. Kansas.

October 3, 1984.

James S. Phillips, Jr., Wichita, Kan., for plaintiff.

Nola Tedesco Foulston, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., for defendant.

OPINION AND ORDER

THEIS, District Judge.

I. NATURE OF THE CASE

The plaintiff, Bruce A. Wynn, a former employee of the defendant, Boeing Military Airplane Company (Boeing), has instituted this action to recover damages for alleged racial discrimination in employment. Specifically, the first, second, third and seventh causes of action allege unlawful racial discrimination in termination, pay, and promotions, and racial harassment in violation of 42 U.S.C. § 1981. In addition to these claims, plaintiff, in his fourth cause of action, contends that defendant Boeing expressly and/or impliedly covenanted that it would treat plaintiff fairly and in good faith and that defendant breached this contract.

In his fifth cause of action, Wynn asserts a claim for a breach of a tort duty. Plaintiff asserts that this Court has pendent jurisdiction to consider these latter two claims. Plaintiff has voluntarily abandoned his sixth cause of action. The case is currently before the Court on defendant's motion to dismiss and/or for more definite statement.

II. PLAINTIFF'S FOURTH CAUSE OF ACTION

Regarding plaintiff's fourth claim, that Boeing breached both an express and an implied covenant to treat plaintiff fairly and in good faith, defendant contends that this jurisdiction adheres to the employment at will doctrine: that, in the absence of a specific contract covering the duration of employment and in the absence of any statutory violation, an employment relationship is terminable at the will of either party with or without cause. Mitchell v. Stanolind Pipeline Co., 184 F.2d 837 (10th Cir. 1950). Defendant's construction of the employment at will theory is incomplete, however, as will be explained below. Plaintiff responds that there are both express and implied covenants that must be considered.

A. EXPRESS CONTRACTUAL PROVISIONS

As to the express contractual provision, found in section 21.3 of the collective bargaining agreement between employer, employee and union, defendant argues that even if this provision did give rise to an actionable breach of contract claim, plaintiff's failure to exhaust his contractual remedies prior to suit bars any recovery on that theory. Defendant's position regarding the express contractual provision is meritorious.

The collective bargaining provision cited by plaintiff specifically states that "a grievance alleging a violation of this section 21.3 shall be subjected to the grievance procedure and arbitration ... if it is filed on behalf of and pertains to a single employee." Defendant is correct in asserting that courts enforce provisions in collective bargaining agreements that provide for grievance procedures by refusing to assert jurisdiction over an action in which an employee has failed even to attempt exhaustion of contractual remedies. Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965).

Plaintiff alleges exhaustion of state administrative remedies. This sort of exhaustion is not the exhaustion required by the collective bargaining agreement. Plaintiff's claim of a violation of section 21.3 must be exhausted through internal union grievance procedures. Absent exhaustion, this Court has no jurisdiction to decide the merits of plaintiff's claim of breach of express contract. Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967).

B. IMPLIED CONTRACTUAL PROVISIONS

Independently, plaintiff contends that defendant breached the covenant of good faith implied from public policy. Plaintiff more accurately characterizes the contours of the employment at will doctrine. In absence of a specific contractual provision, an employer may terminate an employee at will for any reason or for no reason, but not for a discriminatory reason. See, e.g., Tims v. Board of Education, 452 F.2d 551, 552 (8th Cir.1971); Slack v. Havens, 7 FEP Cases 885 (S.D. Cal.1973), aff'd as modified, 522 F.2d 1091 (9th Cir.1975). The essence of plaintiff's complaint is that Boeing terminated Wynn for discriminatory reasons.

Plaintiff correctly cites Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981), for the proposition that Kansas recognizes public policy limitations on the traditional contract rule of terminability at will. In Murphy an employee at will who was fired in retaliation for filing a workers' compensation claim had a cause of action for retaliatory discharge. In short, public policy supported protecting the workers' compensation laws.

Defendant argues that Murphy must be read to establish two requirements for an exception to the parameters of the employment at will doctrine: first, that the discharge must violate public policy; and second, that there is no other remedy to protect the discharged employee. Defendant cannot seriously contend that plaintiff's allegations of race discrimination would not be violative of public policy. Instead, defendant suggests that because plaintiff has federal remedies available, he should not be allowed to state a claim under the reasoning in Murphy.

Although defendant cites Murphy, Tarr v. Riberglass, Civil Action No. 83-4234 (D.Kan., unpublished, February 8, 1984), and other cases cited within the Tarr opinion, all of these cases involved age discrimination. Boeing is correct in its contention that some courts have held that the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., provides an exclusive remedy for complaints of age discrimination; however, defendant cites no cases that have extended this principle to race discrimination cases. This Court is unwilling to engraft such a requirement onto the law of race discrimination.

Plaintiff suggests a salient reason why the "remedy available" requirement should not apply to race discrimination claims. As plaintiff points out, state and federal race discrimination law is not coextensive. The Kansas common law action may provide remedies not available under federal law and does not have requisites that the federal law possesses. Portions of the language of the state statute, K.S.A. 44-1009 (1981) (Kansas Acts Against Discrimination), are more particular and different than the wording of § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In addition, Kansas courts in cases such as McCabe v. Board of Johnson County Commissioners, 5 Kan.App.2d 232, 236-37, 615 P.2d 780 (1980), have chosen to interpret the Kansas statute in ways different than some of the federal courts have interpreted the aforementioned federal statutes. Thus, even though plaintiff may have a federal remedy available, it is not necessarily duplicative of the state remedy. The Court, therefore, is unwilling to make § 1981 and Title VII plaintiff's exclusive avenues of relief.

Since the Court has determined that the other remedy available exception of Murphy and Tarr should not apply in race discrimination cases, the next question is whether plaintiff's case fits within the public policy requirement of Murphy. The cases decided under the Kansas Acts Against Discrimination, upon which plaintiff bases one of his state law claims, and the very existence of the Acts themselves indicate that elimination of racial discrimination is a significant public policy objective in Kansas. See, e.g., Hutchinson Human Relations Commission v. Midland Credit Management, Inc., 213 Kan. 308, 311, 517 P.2d 158 (1973). Thus Wynn's case fits squarely within the ambit of Murphy: a discharge based on the impermissible consideration of race is prohibited by the public policy of Kansas.

Furthermore, the allegations of plaintiff's complaint come within the general rule that employment at will may be terminated for any reason or for no reason but not for a discriminatory reason. Thus, under the standard for the grant of a motion to dismiss for failure to state a claim, that plaintiff "can prove no set of facts in support of his claim which would entitle him to relief," Kennedy v. Meachum, 540 F.2d 1057, 1060 (10th Cir.1976), the Court finds plaintiff's fourth cause of action does not fail to state a claim upon which relief may be granted.

III. PLAINTIFF'S FIFTH CAUSE OF ACTION

To the extent that defendant urges the same arguments regarding the fifth cause of action as it did regarding the fourth cause of action, the above analysis applies. Boeing's only additional argument concerning the fifth cause of action, which is premised in tort upon the Kansas Acts Against Discrimination, K.S.A. 44-1009 (1981), is that the Court should not exercise pendent jurisdiction. Defendant cites Davis v. Modine Manufacturing Co., 526 F.Supp. 943 (D.Kan.1981), in which this Court declined to exercise pendent jurisdiction over a state civil rights claim brought under K.S.A. 44-1009. The reasons this Court found that pendent jurisdiction was not appropriate in Modine are not apposite here.

First, in Modine the Court relied on the reasoning of Judge Rogers in Brown v. Frito-Lay, Inc., 15 FEP Cases 1055 (D.K...