Goolsby v. Management & Training Corporation, No. 5:2014cv04019 - Document 18 (D. Kan. 2014)
Court Description: MEMORANDUM AND ORDER denying 10 Motion for certification of question of law. Signed by U.S. District Senior Judge Sam A. Crow on 7/2/14. (mb)
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Goolsby v. Management & Training Corporation Doc. 18 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS MI CHELE RENE HART GOOLSBY Plaint iff vs. Case No. 14- 4019- SAC MANAGEMENT & TRAI NI NG CORPORATI ON, Defendant . MEMORANDUM AND ORDER The plaint iff Michele Rene Hart Goolsby ( “ Goolsby” ) in February of 2014 filed an act ion in t he Dist rict Court of Riley Count y, Kansas, alleging she had been em ployed by t he defendant in Manhat t an, Kansas, and was t erm inat ed in ret aliat ion for suffering an on- t he- j ob inj ury and for filing and pursuing a workers’ com pensat ion claim . ( Dk. 1- 2) . I n March, t he defendant Managem ent & Training Corporat ion ( “ Managem ent ” ) rem oved t he act ion t o federal court on t he basis of diversit y j urisdict ion. ( Dk. 1) . The defendant Managem ent also filed an answer which included, “ Plaint iff’s claim and cause of act ion is rendered invalid and legally insufficient by operat ion of t he Transparency in Lawsuit s Prot ect ion Act ( K.S.A. 60- 5201) .” ( Dk. 7, ¶ 12) . On April 23, 2014, Managem ent filed t he pending m ot ion t o cert ify t he following quest ion of st at e law pursuant t o K.S.A. 60- 3201: I n light of t he 2012 t ransparency in lawsuit s prot ect ion act , which provides in part , “ Court s of t his st at e shall not const rue a st at ut e t o im ply a privat e right of act ion in t he absence of such express Dockets.Justia.com language” does Kansas cont inue t o recognize a privat e cause of act ion for workers com pensat ion ret aliat ion? ( Dk. 10, p. 1) . The plaint iff opposes t he m ot ion, ( Dk. 16) , and t he defendant has replied ( Dk. 17) . The court denies t he m ot ion t o cert ify for t he following reasons. The Uniform Cert ificat ion of Quest ions of Law Act , K.S.A. 603201, aut horizes t he Kansas Suprem e Court t o: answer quest ions of law cert ified t o it by . . . a Unit ed St at es dist rict court . . . when request ed by t he cert ifying court if t here are involved in any proceeding before it quest ions of law of t his st at e which m ay be det erm inat ive of t he cause t hen pending in t he cert ifying court and as t o which it appears t o t he cert ifying court t here is no cont rolling precedent in t he decisions of t he suprem e court and t he court of appeals of t his st at e. Kan. St at . Ann. § 60–3201. I n t his circuit , a novel quest ion of law governed by unset t led st at e law m akes cert ificat ion appropriat e, but it is never com pelled. Pehle v. Farm Bureau Life I ns. Co., 397 F.3d 897, 900 n.1 ( 10t h Cir. 2005) . “ Cert ificat ion is not t o be rout inely invoked whenever a federal court is present ed wit h an unset t led quest ion of st at e law.” Arm ij o v. Ex Cam , I nc., 843 F.2d 406, 407 ( 10t h Cir. 1988) ( cit at ion om it t ed) . “ [ U] nder t he diversit y st at ut es t he federal court s have t he dut y t o decide quest ions of st at e law even if difficult or uncert ain.” Enfield ex rel. Enfield v. A.B. Chance Co., 228 F.3d 1245, 1255 ( 10t h Cir. 2000) ( int ernal quot at ion m arks and cit at ions om it t ed) . “ Cert ificat ion is wit hin t he sound discret ion of t he federal court , and is appropriat e when it will conserve t he t im e, energy, and resources of t he part ies as w ell as of t he court it self.” Hart ford I ns. Co. v. 2 Cline, 427 F.3d 715, 716–17 ( 10t h Cir. 2005) ( int ernal quot at ion m arks and cit at ions om it t ed) . I n t he exercise of t hat discret ion, t he court finds t hat cert ificat ion is not com pelled here and t hat bet ween t he st at e court decisions and t he general weight of aut horit y t here is sufficient guidance for resolving t his part icular quest ion of st at e law. I n 2012, t he Kansas Legislat ure passed t he Transparency in Lawsuit s Prot ect ion Act , K.S.A. 60- 5201, ( “ TLPA” ) t hat reads: ( a) This sect ion shall be known as t he t ransparency in lawsuit s prot ect ion act and shall be part of and supplem ent al t o t he Kansas code of civil procedure. ( b) I t is t he int ent of t he legislat ure t hat no st at ut e, rule, regulat ions or ot her enact m ent of t he st at e shall creat e a privat e right of act ion unless such right is expressly st at ed t herein. ( c) Any legislat ion enact ed in t his st at e creat ing a privat e right of act ion shall cont ain express language providing for such a right . Court s of t his st at e shall not const rue a st at ut e t o im ply a privat e right of act ion in t he absence of such express language. ( d) Not hing in t his act shall be const rued t o prevent t he breach of any dut y im posed by law from being used as t he basis for a cause of act ion under any t heory of recovery ot herwise recognized by law, including, but lim it ed t o, t heories of recovery under t he law of t ort s or cont ract . The defendant argues for an int erpret at ion of t his st at ut e t hat would have t he Kansas Legislat ure abrogat ing Kansas com m on law t hat est ablishes t he t ort of ret aliat ory discharge for exercising right s under t he Kansas Workers Com pensat ion Act ( “ KWCA” ) . From t he t est im ony offered in support of t his legislat ion and t he observat ions of com m ent at ors lat er, t he plaint iff count ers t hat t his st at ut e appears t o have been aim ed at rest rict ing t he doct rine of negligence per se in Kansas and t hat subsect ion ( d) is applicable here. I n reply, t he defendant expansively read t he st at ut e as applying t o any effort t o 3 im ply a privat e cause of act ion including t he circum st ances giving rise t o t he t ort of ret aliat ory discharge in violat ion of t he public policy found in t he KWCA. The Kansas Suprem e Court , in t he cont ext of a negligence per se claim , art iculat ed and applied t hese general rules: “ The quest ion whet her a liabilit y arising from t he breach of a dut y prescribed by st at ut e accrues for t he benefit of an individual specially inj ured t hereby, or whet her such liabilit y is exclusively of a public charact er, depends upon t he nat ure of t he dut y im posed and t he benefit s t o be derived from it s perform ance, and t he relevancy of t he rule laid down by t he st at ut e t o privat e right s. 73 Am .Jur.2d, St at ut es §§ 431 and 432, pp. 529–30.” Greenlee v. Board of Clay Count y Com m 'rs, 241 Kan. 802, 804, 740 P.2d 606 ( 1987) . The det erm inat ion of whet her a privat e right of act ion exist s under a st at ut e is a quest ion of law. Kansas court s generally use a t wo- part t est in det erm ining whet her a privat e right of act ion is creat ed. First , t he part y m ust show t hat t he st at ut e was designed t o prot ect a specific group of people rat her t han t o prot ect t he general public. Second, t he court m ust review legislat ive hist ory in order t o det erm ine whet her a privat e right of act ion was int ended. See Nichols v. Kansas Polit ical Act ion Com m it t ee, 270 Kan. 37, 11 P.3d 1134 ( 2000) ( quot ing Nora H. Ringler Revocable Fam ily Trust v. Meyer Land and Cat t le Co., 25 Kan.App.2d 122, 126, 958 P.2d 1162, rev. denied 265 Kan. 886 [ 1998] ) ( t he Ringler t est ) . Pullen v. West , 278 Kan. 183, 194, 92 P.3d 584 ( 2004) . The t erm s of t he TLPA, in part icular subsect ions ( b) and ( c) , are plainly aim ed at im pact ing how court s analyze a negligence per se claim for whet her t he Kansas legislat ure int ended a privat e right of act ion t o be creat ed by st at ut e. And specifically, t he Kansas Legislat ure in t he TLPA declared it s int ent t o creat e no privat e right of act ion unless t he legislat ion expressly creat es t his right . 4 There is no m ist aking t he overlapping language and scope of t he TLPA and t he j udicial analysis quot ed above. I n cont rast , t he Kansas j udicial opinions discussing t he t ort claim of ret aliat ory discharge against public policy do not share sim ilar language and analysis wit h t he TLPA. Over t he last 30 years, Kansas court s have “ creat ed” and expanded “ a com m on- law t ort for ret aliat ory discharge.” Cam pbell v. Husky Hogs, 292 Kan. 225, 227, 255 P.3d 1 ( 2011) . These are except ions t o t he general em ploym ent - at - will doct rine for “ when an em ployee is fired in cont ravent ion of a recognized st at e public policy.” I d. ( cit at ions om it t ed) . I n Cam pbell, t he Kansas Suprem e Court sum m arized t his t ort , it s purpose and expansion: To dat e, t his court has endorsed public policy except ions in four circum st ances: ( 1) filing a claim under t he Kansas Workers Com pensat ion Act , K.S.A. 44–501 et seq ; ( 2) whist leblowing; ( 3) filing a claim under t he Federal Em ployers Liabilit y Act ( FELA) , 45 U.S.C. § 51 ( 2006) et seq.; and ( 4) exercising a public em ployee's First Am endm ent right t o free speech on an issue of public concern. Anco Const r. Co. [ v. Freem an] , 236 Kan. [ 626] at 629, 693 P.2d 1183 [ ( 1985) ] ( workers com pensat ion) ; Palm er v. Brown, 242 Kan. 893, 900, 752 P.2d 685 ( 1988) ( whist leblowing based on good- fait h report ing of coworkers or em ployers infract ion pert aining t o public healt h and safet y) ; Hyst en v. Burlingt on Nort hern Sant a Fe Ry. Co., 277 Kan. 551, 561, 108 P.3d 437 ( 2004) ( FELA) ; Larson v. Ruskowit z, 252 Kan. 963, 974–75, 850 P.2d 253 ( 1993) ( ret aliat ory discharge claim when a public em ployee is t erm inat ed for exercising First Am endm ent right s t o free speech on an issue of public concern) ; see also Flenker v. Willam et t e I ndust ries, I nc., 266 Kan. 198, 204, 967 P.2d 295 ( 1998) ( whist leblowing based on good- fait h report ing of federal Occupat ional Safet y and Healt h Act violat ions) ; Colem an v. Safeway St ores, I nc., 242 Kan. 804, 815, 752 P.2d 645 ( 1988) ( em ployer prohibit ed from t erm inat ing em ployee because of absence caused by work- relat ed inj ury and pot ent ial workers com pensat ion claim ) , overruled on ot her grounds by Gonzalez–Cent eno v. Nort h 5 Cent ral Kansas Regional Juvenile Det ent ion Facilit y, 278 Kan. 427, 101 P.3d 1170 ( 2004) ; Cox v. Unit ed Technologies, 240 Kan. 95, Syl., 727 P.2d 456 ( 1986) ( recognizing t ort of ret aliat ory discharge for filing a workers com pensat ion claim but declining t o apply it under specific fact s of case) , overruled on ot her grounds by Colem an, 242 Kan. at 813–15, 752 P.2d 645. Murphy v. Cit y of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 ( 1981) , was t he first Kansas case recognizing a cause of act ion for ret aliat ory discharge. There, plaint iff alleged he was t erm inat ed for claim ing workers com pensat ion benefit s against his em ployer. The Workers Com pensat ion Act did not cont ain an express provision m aking it unlawful t o t erm inat e an em ployee for filing a claim . I n fact , t he Murphy court not ed t he legislat ure had considered am ending t he law t o explicit ly perm it a ret aliat ion claim on t wo occasions, but neit her am endm ent passed. 6 Kan.App.2d at 496, 630 P.2d 186. Nevert heless, t he Court of Appeals held a st rong public policy could be im plied from t he st at ut ory schem e and t hat policy needed prot ect ion against j ob- relat ed ret aliat ion. I t not ed t he Workers Com pensat ion Act provided efficient rem edies and prot ect ions for em ployees, was designed t o prom ot e t he welfare of people in t he st at e, and was t he exclusive rem edy available for inj ured workers. As such, “ [ t ] o allow an em ployer t o coerce em ployees in t he free exercise of t heir right s under t he act would subst ant ially subvert t he purposes of t he act .” 6 Kan.App.2d at 496, 630 P.2d 186. Four years lat er, t he Court of Appeals' analysis was affirm ed by t his court in Anco Const r. Co., 236 Kan. at 629, 693 P.2d 1183, and t hen reaffirm ed in subsequent cases. See Rebarchek v. Farm ers Co- op. Elevat or & Mercant ile Ass'n, 272 Kan. 546, 560–62, 35 P.3d 892 ( 2001) ; Brown v. Unit ed Met hodist Hom es for t he Aged, 249 Kan. 124, 132, 815 P.2d 72 ( 1991) ; Colem an, 242 Kan. at 810, 752 P.2d 645; Cox, 240 Kan. at 96, 727 P.2d 456. Alm ost 2 decades aft er Anco Const r. Co., t his court applied t he sam e analysis recit ed in Murphy t o recognize t hat a ret aliat ory discharge claim under FELA was necessary t o prot ect an em ployee's exercise of st at ut ory FELA right s. Hyst en, 277 Kan. at 561, 108 P.3d 437. . . . The case law m akes it obvious t hat Kansas court s perm it t he com m on- law t ort of ret aliat ory discharge as a lim it ed except ion t o t he at - will em ploym ent doct rine when it is necessary t o prot ect a st rongly held st at e public policy from being underm ined. 6 292 Kan. at 228- 29 ( underlining added) . And in deciding whet her a st at e public policy exist s, t he Kansas Suprem e Court em ploys t his analysis: We have st at ed t hat court s t asked wit h det erm ining whet her a public policy exist s are faced wit h t hree sit uat ions: ( 1) The legislat ure has clearly declared t he st at e's public policy; ( 2) t he legislat ure enact ed st at ut ory provisions from which public policy m ay reasonably be im plied, even t hough it is not direct ly declared; and ( 3) t he legislat ure has neit her m ade a clear st at em ent of public policy nor can it be reasonably im plied. Colem an, 242 Kan. at 808, 752 P.2d 645. We also have held t hat public policy m ust be clearly declared by t he const it ut ion, st at ut ory enact m ent s, or t he court s, and it m ust be “ ‘so unit ed and so definit e and fixed t hat it s exist ence is not subj ect t o any subst ant ial doubt .’” Hyst en, 277 Kan. at 555, 108 P.3d 437 ( cit ing Riddle v. Wal–Mart St ores, I nc., 27 Kan.App.2d 79, 998 P.2d 114 [ 2000] ) . We also have acknowledged t hat while public policy m ay be det erm ined by bot h t he legislat ure and t he court s, court s m ust respect legislat ive expressions when ascert aining whet her a public policy exist s. Colem an, 242 Kan. at 808, 752 P.2d 645. 292 Kan. at 230. I nst ead of looking at whet her t he Kansas Legislat ure int ended t o creat e a privat e right of act ion, t he Kansas court s look at whet her a st rongly held st at e public policy exist s such t hat endorsing anot her except ion t o t he at - will em ploym ent doct rine “ is necessary t o prot ect ” t his policy “ from being underm ined.” 292 Kan. at 229. And m ost recent ly, t he Kansas Suprem e Court has spelled out t he prim ary rat ionale behind t he com m on- law ret aliat ory discharge t ort : The necessit y for recognizing a ret aliat ory discharge t ort in each of t hese circum st ances has rest ed on a principle of det errence against em ployer reprisal for an em ployee's exercise of a legal right . And in t hose inst ances in which an em ployee is exercising a st at ut ory right creat ed by t he legislat ure, we have not ed t hat such det errence serves not only t he em ployee's int erest s but also t hose of t he st at e and it s people. This is because st at ut ory right s exist only because of t he legislat ure's det erm inat ion t hat such a right is in t he public int erest . 7 See Cam pbell, 292 Kan. at 235–36, 255 P.3d 1; Hyst en, 277 Kan. at 561, 108 P.3d 437; Flenker, 266 Kan. at 202, 204, 967 P.2d 295. Pfeifer v. Federal Exp. Corp., 297 Kan. 547, 556, 304 P.3d 1226 ( 2013) . The t ort prot ect s an em ployee’s exercise of a st at ut ory right t hat is based on st at e public policy. The t ort does not arise from discerning a legislat ive int ent t o creat e a privat e right of act ion in t he st at ut e. I ndeed, t he Kansas court s recognized a st rong public policy in t he KWCA even when t he Kansas Legislat ure had already rej ect ed t wice am endm ent s t o t he KWCA t hat would have creat ed a ret aliat ion claim . Cam pbell, 292 Kan. at 228- 29. I n sum , t he court finds t hat t hese Kansas court s in recognizing and affirm ing t he t ort of workers’ com pensat ion ret aliat ion did not focus on whet her t he legislat ure int ended t o creat e a privat e of act ion but rat her on whet her t he st rong public policy found in t he KWCA “ needed prot ect ion against j ob- relat ed ret aliat ion.” Cam pbell, 292 Kan. at 229; cf. Vignery v. Ed Bozart h Chevrolet , I nc., 2009 WL 635128 at * 2 ( D. Kan. Mar. 10, 2009) ( “ [ T] he t ort of ret aliat ory discharge for t erm inat ing an inj ured em ployee for having filed a workers com pensat ion claim is a creat ure of com m on law, born of Kansas' public policy,” and is not st at ut orily creat ed.) ; Vasquez v. Target Corp., 2009 WL 1764525 at * 2 ( D. Kan. June 22, 2009) ( “ But even wit hout t he [ Kansas Workers’ Com pensat ion] Act , a claim for ret aliat ory discharge would exist . As Judge Crow explained, because t he Act is m erely a prem ise for t he t ort does not m ean t hat t he t ort arises under t he Act ; inst ead, t he Act is present only indirect ly as evidence of public policy.” ) . The court finds no part icularly 8 serious or subst ant ial issue raised by defendant s for applying subsect ions ( b) and ( c) of t he TLPA here. I n t his court ’s j udgm ent , t he issue of st at e law raised in t he defendant ’s m ot ion t o cert ify is neit her difficult nor uncert ain. Exist ing st at e court and federal court precedent provides sufficient guidance for resolving t he TLPA’s applicat ion here. The court does not find t hat cert ificat ion would conserve t he t im e, energy, and resources of t he part ies and t he court . I T I S THEREFORE ORDERED t hat t he defendant ’s m ot ion for cert ificat ion of quest ion of law ( Dk. 10) is denied. Dat ed t his 2nd day of July, 2014, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 9
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