The opinion of the court was delivered by
Larry L. Rebarchek filed suit against his former employer, Farmers Cooperative Elevator and Mercantile Association (Farmers), and supervisor, Floyd G. Barber, alleging retaliatory discharge for the filing of a workers compensation claim. The district court granted summary judgment in favor of Farmers and Barber, and Rebarchek appealed. The Court of Appeals reversed and remanded for trial. Rebarchek v. Farmers Co-op Elevator & Mercantile Ass'n., 28 Kan.App.2d 104, 13 P.3d 17 (2000). This court granted defendants/appellees' petition for review.
Farmers operates five elevator and grain storage and handling facilities. Rebarchek began his employment with Farmers in September
Early in 1994, Rebarchek began experiencing recurring back problems for which he sought medical treatment. He was seen on January 18, 1994, by a physician in Dighton, Kansas. In the spring and summer of 1994, he was treated by an orthopedic specialist in Wichita. He was absent from work for an extended period in September 1994. On September 27, 1994, he gave an oral report to Farmers that he had injured his back on January 17, 1994. On November 11, 1994, he gave his employer written notice of a workers compensation claim based on the January 17, 1994, back injury. Reports of the Dighton and Wichita doctors were filed on November 9 and 15, 1994.
On November 16, 1994, Rebarchek told Farmers' secretary that he reinjured his back, Barber was advised on November 17, 1994, and the Form A Employers' Accident Report was made by Farmers the following day. Rebarchek lost no time from work as a result of the November 16 reinjury.
Rebarchek and other Farmers employees drove company pickup trucks to and from work. At the end of the workday on Thursday, November 17, 1994, Barber told Mudd to drive Rebarchek home. He told Rebarchek he could no longer drive the manual transmission company pickup truck assigned for his use. Barber said that he did not want Rebarchek to reinjure his back using the manual transmission. On Friday morning, November 18, Barber announced to all employees that company vehicles could no longer be used for personal business or for commuting to work.
On Monday, November 21, 1994, Barber sent Rebarchek to work at the Alamota facility. The same day he received a letter faxed from Rebarchek's attorney alleging that the reassignment was retaliatory. After receiving the letter, Barber was quite angry. Barber
Barber returned Rebarchek to his position at the Shields facility on Tuesday, November 22, 1994. Rebarchek remained at Shields until his termination.
On December 5, 1994, Rebarchek requested a hearing on his workers compensation claim.
Rebarchek's failing to maintain the quality of stored grain was the reason given by Farmers for terminating him. The tasks involved in maintaining the quality of the stored grain included checking the temperature of the grain, then turning and blending it if hot spots began to develop. Grain that develops hot spots can become sour, musty, and burned, thus losing value.
Temperatures of stored grain are checked and recorded. The system for tracking temperatures consists of thermocouplers on cables suspended inside each bin. In order to check temperatures, a worker switches on the system and a digital display, then clicks a dial in order to serially display the readings from the thermocouplers. Each reading is written in a "hot spot book." The temperature check at the Shields facility usually took 30 to 35 minutes to complete.
Until grain temperatures are lowered and stabilized after harvests, temperature checks are conducted approximately three times a week. Once the grain temperatures are in acceptable ranges, checks are made at least once a week.
Rebarchek had delegated responsibility for reading the grain temperatures to Mudd. Rebarchek, however, retained ultimate responsibility for the condition of the grain.
On or about September 25, 1994, Farmers first learned of potential problems with the condition of the grain at the Shields facility. Rebarchek was advised by a customer that the grain was bad. Rebarchek assured Barber that "they had simply run through a pocket of bad wheat." Wheat samples furnished to Barber by Rebarchek were tested and given acceptable grades.
On March 21, 1995, Rebarchek and Mudd received written reprimands. Rebarchek was reprimanded "for his lack of management of the grain at the Shields elevator." The reprimand stated:
Handwritten on the lower half of the page is the following: "Larry claims only 80,000 bu corn out of condition." The monetary loss was not determined until the grain was shipped, inspected and tested, the purchaser's vouchers were received by Farmers, and the grain certificates were returned. Farmers first shipment of "hot corn" was made in April 1995, and its estimate of the total monetary loss was based on the figures from that partial shipment (30,000 of 140,000 bushels). Farmers estimated that its loss would total approximately $80,000.
On March 24, 1995, Rebarchek underwent back surgery. He returned to work on April 17, 1995. His doctor imposed the following restrictions: "He is released for light duty with no lifting more than 40 lbs., no bending or twisting of the back more than halfway, no climbing ladders. He may sit, stand or walk for 2 hours at a time with breaks. Hopefully, these will be temporary restrictions." Rebarchek's activities had not been restricted before the surgery.
One week after Rebarchek returned to work, his employment was terminated by Farmers. Mudd also was discharged on April 24, 1995.
In arguing that the Court of Appeals incorrectly concluded that Rebarchek was entitled to test his case before a jury, defendants raise questions about the burden of proof and using a burden-shifting approach as well as whether Rebarchek's evidence raised a genuine issue of material fact.
Defendants complain that the Court of Appeals misidentified the burden of proof in Syl. ¶ 4 in saying that "[t]he burden of proof is on the complainant to prove by a preponderance of the evidence...." Defendants failed to note Syl. ¶ 2, which states: "The plaintiff must prove a claim for retaliatory discharge by a preponderance of the evidence, but the evidence must be clear and convincing in nature." 28 Kan.App.2d 104, Syl. ¶ 2.
A question that presents itself in this case is whether a clear and convincing quality of proof standard should be required in determining on a motion for summary judgment whether there is a genuine issue of material fact. In Baumann v. Excel Industries, Inc., 17 Kan.App.2d 807, 845 P.2d 65, rev. denied 252 Kan. 1091 (1993), a panel of the Court of Appeals, including now-Justice Davis, gave thoughtful consideration to this question and concluded that the clear and convincing evidence standard need not be met at a summary judgment stage of the proceedings:
We find the reasoning of Gorham and Baumann to be sound and conclude Rebarchek need not meet the clear and convincing standard at the summary judgment stage of the proceedings.
Based on this court's use of the burden-shifting analysis for discrimination and free speech cases, "Judge Earl E. O'Connor of the United States District Court for the District of Kansas has concluded that Kansas would utilize the burden-shifting analysis in workers compensation discharge cases. Robinson v. Wilson Concrete Co., 913 F.Supp. 1476, 1483 (D. Kan. 1996)." 28 Kan. App. 2d at 109-10. The Court of Appeals stated that the parties agreed that the analysis was appropriate and held that it applied. 28 Kan. App.2d at 110. We agree.
The Court of Appeals adopted the elements of a prima facie claim for retaliatory discharge for filing a workers compensation
The differences between the district court's view of summary judgment and that of the Court of Appeals begins with the fourth element of the prima facie case. There is no dispute that Rebarchek presented sufficient evidence on the first three elements of a prima facie case. On the fourth element, the district court found that Rebarchek failed to come forward with sufficient evidence of a causal connection between his workers compensation claim and his discharge.
On the fourth element of Rebarchek's prima facie case, that a causal connection existed between the protected activity or injury
The Court of Appeals viewed Rebarchek's evidence of a pattern of retaliatory conduct sufficient to raise a genuine issue of material fact regarding a causal connection. The phrase used by the Court of Appeals in describing plaintiffs proof was that he had "assembled enough bits and pieces of circumstantial evidence." 28 Kan. App.2d at 111. The Court of Appeals listed the bits of evidence mustered by plaintiff:
1. Barber was angry;
2. Barber followed Rebarchek home after the workers compensation claim was filed;
3. Barber reassigned Rebarchek to the Alamota facility;
4. Barber prevented Rebarchek from driving the company vehicle previously assigned to him;
5. Barber was angry that Rebarchek refused cash offered in lieu of pursuing workers compensation claim;
6. employees with similar or worse job performances were not terminated; and
7. Rebarchek was fired within a week of his post-surgery release to return to work that included restrictions on his activities.
With regard to the plaintiff's 1994 injury and claim, the record shows that on November 11 Rebarchek gave Farmers written notice of a workers compensation claim based on his January 17 back injury, his doctors' reports were filed on November 9 and 15, Rebarchek told Farmers' secretary on November 16 that he reinjured his back, Barber was advised on November 17 and the Form A Employers' Accident Report was made by Farmers on November 18.
With regard to the employer's actions, the record shows that Barber's anger coincided with Rebarchek's reinjury and the filing of his workers compensation claim. At that time, Barber cancelled Rebarchek's company vehicle privileges, transferred Rebarchek from his supervisory position at the Shields facility to another facility, angrily followed him home from work, and expressed anger to another worker that Rebarchek refused to take cash instead of filing for workers compensation benefits.
Four months later, on March 24, 1995, Rebarchek underwent back surgery. On April 17, he was released to return to work with restrictions on his activities. On April 24, he was terminated.
The Court of Appeals viewed this evidence as constituting a pattern of retaliatory conduct that began mid-November 1994 with Rebarchek's reinjury and the filing of his workers compensation claim and culminated on April 24, 1995, in actual discharge. The passage of slightly more than 5 uneventful months before Rebarchek was discharged probably approaches the limit that would be recognized as part of a pattern for the purpose of establishing a causal connection between the protected activity and termination.
Defendants argue that plaintiffs poor job performance precludes him from establishing the fourth element of a prima facie case of retaliatory discharge. They cite several Court of Appeals cases in which a treatise was quoted on the use of circumstantial evidence for proving retaliation. In Marinhagen, 17 Kan. App.2d at 40, the Court of Appeals stated:
The prima facie case, as that phrase is used in the quote from the treatise, is not a prima facie case as set out in our burden-shifting analysis. With the burden-shifting approach utilized by the Court of Appeals, evidence of the claimant's job performance, negative and positive, is not a part of his or her prima facie case but rather is the subject of the employer's proof and the plaintiff's response. A claimant's "prima facie case is not an onerous burden under the McDonnell Douglas burden-shifting scheme." Robinson v. Wilson Concrete Co., 913 F.Supp. 1476, 1483 (D. Kan. 1996).
In the present case, the legitimate, nonretaliatory reason given by defendants for firing Rebarchek was that he failed to maintain the condition of stored grain, causing Farmers to lose money on the sale of a substantial quantity of out-of-condition grain.
With the burden shifted back to him, Rebarchek presented evidence tending to support the proposition that defendants' stated reason for discharging him on April 24, 1995, was merely a pretext. Plaintiff points to evidence that defendants knew how much grain was out-of-condition at the time, March 21, 1995, when he and
Rebarchek presented evidence that other Farmers employees with somewhat similar performance deficiencies were not terminated. There is evidence that another branch manager, Rick Torson, was given a written reprimand for failing to follow bin entry procedures. As a result of that failure, an employee was killed. On two other occasions, Torson allowed wheat and milo to be mixed together at the Alamota facility. Those two grains cannot be salvaged by separating. One of those incidents involved between 75,000 and 100,000 bushels of grain. Torson was not fired for these failures. In late November 1994, the elevator supervisor, Henry Coleman, was directed to keep watch on the Shields facility, including the grain temperatures there. Coleman did not do so but was not fired for that failure.
The Court of Appeals concluded that the evidence presented by Rebarchek for the purpose of showing that Farmers' stated reason for his termination was unworthy of belief as the actual reason for why he was discharged raised genuine issues of material fact on the existence of pretext. 28 Kan. App.2d at 112. Although, Rebarchek's admittedly poor job performance supports Farmers' position, we agree with the Court of Appeals that he is entitled to test his case before a jury by virtue of his coming forward with evidence that raises genuine issues concerning defendants' motivation.
The Court of Appeals reversed the trial court's ruling on this issue. The Court of Appeals' comments are concise and correct:
Defendants contend that evidence of defendants' pre-April 22, 1995, conduct should not even be admissible and certainly should not be a basis for recovery of damages. Defendants' argument is without merit.
The district court concluded that Supervisor Barber could not be held personally liable for Rebarchek's termination because there was no employment relationship between Barber and Rebarchek. The Court of Appeals concluded that a supervisor who has sole discretion to fire an employee on behalf of the employer can be held directly liable for retaliatory discharge so that his liability will be joint and several with that of the employer. 28 Kan. App.2d at 117. The issue had not previously been adjudicated by Kansas courts. Upon review of Kansas case law, the Court of Appeals concluded that supervisor liability would be consistent with
Defendants contend that the Court of Appeals' decision is opposite the majority and better-reasoned rule. They cite 82 Am. Jur. 2d, Wrongful Discharge, § 231, and a number of cases from other jurisdictions.
The encyclopedia reference does not support defendant's position that individual liability is the minority rule. The article states that there is a difference of authority on the question of individual liability for acts undertaken within the scope of employment. A federal case applying Michigan law is cited for no liability; a federal case applying New Jersey law and a West Virginia case are cited for liability. 82 Am Jur.2d § 231, p. 942.
The cases from other states and federal courts cited by defendants are similarly inconclusive. The great majority of those cases involve statutory causes of action for employment discrimination or wrongful termination. Individual liability in those cases is a matter of construction of the statutory language. Because the Kansas cause of action for retaliatory discharge for filing a workers compensation claim is not statutorily created, other courts' interpretations of statutes offer little or no guidance.
Several of the cases cited by defendants have common-law causes of action for wrongful discharge pled along with statutory ones for wrongful discharge. For instance, in Reno v. Baird, 18 Cal.4th 640, 76 Cal.Rptr.2d 499, 957 P.2d 1333 (1998), plaintiff alleged termination in violation of statutory prohibitions as well as a cause of action for discharge in violation of public policy. The court concluded that there was no individual liability under the statute. Turning to the common-law cause of action, the court concluded: "It would be absurd to forbid a plaintiff to sue a supervisor under the FEHA, then allow essentially the same action under a different rubric." 18 Cal. 4th at 664.
In reaching its decision that a supervisor is potentially liable jointly and severally with the employer for a workers compensation retaliatory discharge, the Court of Appeals began its analysis with Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981). Murphy sued not only his employer but also three individual
Although individual liability was not an adjudicated issue in Murphy, Marinhagen, or Riddle v. Wal-Mart Stores, Inc., 27 Kan.App.2d 79, 998 P.2d 114 (2000), the Court of Appeals viewed those cases as indicating no prohibition on individual employee liability. On the other side of the scale in the Court of Appeals' analysis was Barber's asserted lack of an employment relationship between himself and Rebarchek. 28 Kan. App.2d at 115. On this point, the Court of Appeals stated: "Although it is always true that an entity employer and its discharged employee must have been parties to the former employment relationship, it is not necessarily true that the supervisor who actually discharged the employee was also a party to that relationship." 28 Kan.App.2d 115.
The Court of Appeals' resolution of the issue was to approve individual liability, as indicated by prior cases, but to limit potential liability in accordance with the status of the supervisor in relation to the discharged employee. In this regard, the Court of Appeals determined that the potential for in lividual supervisor liability "should turn on whether the supervisor was free to exercise his or her sole discretion to arrive at the termination decision." 28 Kan. App.2d at 115.
We find the above rationale very persuasive and decline to impose liability for retaliatory discharge of an employee on a supervisor. We conclude that only the employer is liable for retaliatory discharge.
Finally, defendants question Rebarchek's maintaining suits in both state and federal courts, alleging that he was discharged in retaliation for filing a workers compensation claim. Defendants argue that if the "elements and standards" of the Kansas Act Against
Rebarchek filed both state and federal actions. In the federal court action, he alleged violations of the Americans with Disabilities Act (ADA) and the KAAD. Farmers sought and was granted summary judgment by the district court on the principal ground that Rebarchek's back injury was not a disability within the meaning of the ADA. Rebarchek v. Farmers Co-op Elevator and Mercant., 60 F.Supp.2d 1145 (D. Kan. 1999), affd 202 F.3d 282 (10th Cir. 2000). With regard to Rebarchek's KAAD claim, the federal district court stated: "[T]he basis of this claim is the same as the ADA claim and the relevant KAAD provisions are virtually identical to the ADA, [thus] summary judgment is likewise appropriate on plaintiffs KAAD claim." 60 F. Supp.2d at 1153.
The present action does not center on the question of whether Rebarchek's back injury is a disability. The central question in this case is whether Rebarchek was fired from his job on account of his workers compensation injury and claim. There is no merit to the defendants' argument.
We conclude that the Court of Appeals erred in reversing the district court's decision that a supervisor is not liable for the retaliatory discharge of an employee. In all other respects, the Court of Appeals' decision is affirmed.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the district court is affirmed in part and reversed in part, and the case is remanded to the district court for trial.