Garcia v. Tyson Foods, Inc. et al

Filing 42

MEMORANDUM AND ORDER granting in part 24 Motion to Dismiss for Failure to State a Claim. SEE ORDER FOR DETAILS. Signed by District Judge J. Thomas Marten on 8/20/2012. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTONIO GARCIA, ,
Plaintiff,

v.

Case No. 11-1141-JTM

TYSON FOODS, INC., et al.,
Defendants.

MEMORANDUM AND ORDER

Plaintiff Antonio Garcia brought this action for retaliatory discharge against his
former employer, Tyson Foods, and one of its supervisors, Juan Carrera. Garcia alleges
that he was terminated by Tyson on June 9, 2010, because of his participation as a class
representative in the Fair Labor Standards Act (FLSA) action recently tried by the court,
Garcia v. Tyson Foods, No. 06-2198-JTM (Garcia I). Garcia has also alleged that the
termination defamed him and has interfered with his prospective business
relationships. The defendants have moved to dismiss the action under the doctrine of
res judicata, federal preemption, and failure to state a claim. For the reasons provided
herein, the court finds that the Motion to Dismiss should be granted in part and denied
in part.
The defendants argue that the action should be barred by res judicata, since the
termination occurred nearly a year before the trial of the FLSA claims in Case No. 06-

2198, yet Garcia made no attempt to present his claims in that action. Successive claims
are barred under the doctrine claim preclusion if (1) prior litigation occurred resulting
in a decision on the merits, (2) occurred between the same parties or persons in privity
with them, (3) the action was based on the same cause of action, and (4) the parties had
a full and fair opportunity to litigate the issue. Santana v. City of Tulsa, 3359 F.3d 1241,
1246 n. 3 (10th Cir. 2004). Of these elements, the only issue in contention is the third.
In determining the existence of a common cause of action, the Tenth Circuit has
adopted the transactional approach RESTATEMENT (SECOND)

OF JUDGMENTS

§ 24 (1982),

which seeks to pragmatically determine whether the allegations “’form a convenient
trial unit, and whether their treatment as a unit conforms to the parties' expectations or
business understanding or usage.’” Yapp v. Escel Corp., 186 F.3d 1222, 1227 (10th Cir.
1999) (quoting § 24).
The defendants rely on Yapp, where the court found that preclusion applied in
the context of an employment action, and a similar case, Clark v. Haas Group, Inc., 953
F.2d 1235, 1239 (10th Cir.1992). In both cases, the court held that a successive action for
wrongful termination was precluded by an earlier action challenging the conditions of
the employments. In both cases, the “second claim was precluded by the first since both
were based upon a single transaction: the employment relationship.” 186 F.3d at 1227
(footnote omitted).
However, the Tenth Circuit has indicated that a different rule may apply where
the termination occurred after the first suit was filed. In Mitchell v. City of Moore, 218
F.3d 1190 (10th Cir. 2000), the court distinguished Yapp and Clark on the grounds that in
2

those cases the termination of employment occurred before the first suit was filed, while
in Mitchell the plaintiff was terminated after the first suit was filed.
The defendants correctly note that the cited language from Mitchell is dicta, the
court determining that “[r]egardless of the outcome of the third [same cause of action
element],” claim preclusion did not apply under the facts of the case because the second
element was missing, a lack of identical parties. 218 F.3d at 1203. However, this court
finds both the reasoning in Mitchell, and the District of Kansas case it cited with
approval, Johnson v. Board of County Comm'rs of Johnson County, Kansas, No. 99-2289JWL, 1999 WL 1423072 (D.Kan. Dec. 9, 1999), to be persuasive.
In Johnson, Judge Lungstrum held that a claim for wrongful termination was not
precluded by an earlier employment action, where the termination occurred after the
first action was filed. “Because a plaintiff has no obligation to expand his or her suit in
order to add a claim that he or she could not have asserted at the time the suit was
commenced, several circuits have held that res judicata does not bar a second lawsuit
to the extent that suit is based on acts occurring after the first suit was filed.” 1999 WL
143072, at *3. Judge Lungstrum noted that this conclusion was consistent with decisions
in other circuits,1 and that the defendant “has directed the court to no authority
suggesting the rule should be otherwise.” Id. at *4.

The cases include Computer Assocs. Internat’l v. Altai, 126 F.3d 365, 370 (2d Cir. 1997);
NBN Broadcasting, Inc. v. Sheridan Broadcasting Networks, 105 F.3d 72, 78 (2d Cir.1997);
Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 739 (9th
Cir.1984); Manning v. City of Auburn, 953 F.3d 1355, 1360 (11th Cir. 1992); and Spiegel v.
Continental Illinois National Bank, 790 F.2d 638, 646 (7th Cir.1986).
1

3

Similarly, the defendants here point to no cases reaching a different conclusion.
Although their Reply notes the additional decision of the Tenth Circuit in Wilkes v.
Wyoming Dept. of Employment, 314 F.3d 501, 504-05 (10th Cir. 2002), that decision simply
followed Yapp and Clark in that the termination occurred before the first action was
filed. See Wilkes, 314 F.3d at 502.
Further, the transactional approach is “’to be determined pragmatically, giving
weight to such considerations as whether the facts are related in time, space, origin, or
motivation, whether they form a convenient trial unit, and whether their treatment as a
unit conforms to the parties' expectations or business understanding or usage.’” Yapp,
186 F.3d at 1227 (quoting RESTATEMENT (SECOND) OF JUDGMENTS, § 24 (1982)).
The defendants repeatedly note that Garcia was terminated on June 9, 2010,
nearly a year before the trial of the action. More relevant, however, is that the
termination occurred a year and a half after Tyson’s initial summary judgment motion
was denied and an interlocutory appeal on the issue dismissed on August 19, 2008, over
a year after Garcia I was certified as a class action on February 12, 2009, and after the
parties had engaged in extensive discovery on the FLSA issues in Garcia I.
Lumping the

present retaliatory discharge claim with the class-wide FLSA

action can in no sense be considered “a convenient trial unit,” nor would it be consistent
with the parties expectations. At the time Garcia was terminated, the Garcia I class
action had a long history, centering on class-wide issues of employee treatment under
the FLSA, and combining the two actions, from a pragmatic perspective, would have
presented serious disadvantages. For these reasons, the court finds that claim
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preclusion does not bar the present litigation of the plaintiff’s alleged wrongful
termination.
In the first count of Garcia’s Complaint, he alleges that his termination was
retaliation for “his participation in protected union and FLSA suit organization
Activities. (Dkt. 1, at 5). He argues that the court has federal question jurisdiction under
28 U.S.C. § 1331, “inasmuch as Plaintiff asserts he was retaliated against for
participating in conduct protected pursuant to 29 U.S.C. §§ 157, 158 and 215.” (Id. at 2).
The defendants argue that the plaintiff’s claims of anti-union activity under
Sections 157 and 158 – Sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. §
151, et seq. – are preempted by the NLRA, and must first be presented to the National
Labor Relations Board. See San Diego Building Trades Council v. Garmon, 359 U.S. 236
(1959); Felix v. Lucent Technologies, 387 F.3d 1146, 1165-66 (10th Cir. 2004). The plaintiff
concedes the preemption of the NLRA claims, (Dkt. 26, at 3), but argues that the claim
of FLSA retaliation should survive. The plaintiff is correct. See, e.g., Cardenas v. UPS,
2010 WL 5116343, *5 (C.D. Cal. Dec. 9, 2010) (§ 215 retaliation claims are not subject to
Garmon preemption).
Next, the defendants move to dismiss the plaintiff’s defamation claim, on the
grounds that the Complaint does not supply sufficient details, including “what, exactly
was allegedly said,” and to whom it was said. (Dkt. 25, at 7). Further, they argue that
the defamation claim must be dismissed since Garcia fails to allege any specific damage
to his reputation. Garcia argues that the Amended Complaint is sufficient to present a
triable case of defamation.
5

Contrary to the defendant’s suggestion, a plaintiff alleging defamation need not
recite the exact words of communication in issue. Reilly v. Natwest Markets Group Inc.,
181 F.3d 253, 271 (2d Cir.1999); Condit v. Dunne, 317 F.Supp.2d 344, 368 (S.D.N.Y. 2004).
A claim of defamation complies with pleading requirements when it

supplies

“sufficient notice of the communications complained of to allow [the defendant] to
defend itself.” Bushnell Corp. v. ITT Corp., 973 F.Supp. 1276, 1287 (D.Kan.1997) (citing
McGeorge

v.

Continental

Airlines,

871

F.2d

952,

955

(10th

Cir.1989)).

The defendants’ Motion to Dismiss cites only one portion of the Amended
Complaint, the general allegation of defamation presented in Count II. (Dkt. 23, at ¶
23). The remainder of the Amended Complaint, however, supplies sufficient
information to permit Tyson and Carrera to form a defense. The Complaint alleges that
Garcia was told on June 9, 2011, that he was fired because an internal Tyson
investigation heard a report that he had “’hit a member of management.’” (Id. at ¶¶ 14,
17). The accusation of battery was made by Carrera, and was apparently made to the
Tyson Personal Director Mitch Young. (Id.). The Complaint alleges that the Garcia had
previously learned of the investigation, when he was prevented from clocking in “[o]n
Monday, May 24, 2010,” based on “accusations made by Defendant Carrera against him
as to what had transpired between them the prior Friday [that is, May 21, 2010].”
Thus, the Amended Complaint gives both the substance of the allegedly false
communication (that Garcia had committed battery on a Tyson manager), and that this
information was communicated by Carrera to Young some time between May 21 and
May 24, 2010. Further, since the termination was made after an investigation by its own
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Personnel Department, Tyson cannot now credibly say it has no basis for understanding
the substance of Garcia’s defamation claim.
However, the defamation claim is defective in its failure to allege damage to
Garcia’s reputation. An injury to reputation is “the essence and gravamen of an action
for defamation” under Kansas law. Gobin v. Globe Publishing, 232 Kan. 1, 6, 649 P.2d 139,
1243 (1982). Accordingly, “[u]nless injury to reputation is shown, plaintiff [will] not
establish[] a valid claim for defamation.” Id.
The Amended Complaint alleges that the termination based on alleged battery of
a Tyson manager was “of a nature which would tend to deprive Plaintiff of the benefits
of public confidence and social acceptance.” (Dkt. 23, at ¶ 23). This falls short of
actually alleging any specific injury to Garcia’s reputation has occurred, only that the
defamatory might, hypothetically do so, that it could do so. There is no allegation that
the alleged battery was reported or published to any member of the public outside of
Tyson’s Personnel Department.
“In Kansas, any plaintiff in a defamation action must allege and prove actual
damages and may no longer rely on the theory of presumed damages.” Wright v.
Bachmurski, 29 Kan.App.2d 595, 29 P.3d 979 (2001) (emphasis added). See also Droge v.
Rempel, 39 Kan.App.2d 455, 180 P.3d 1094, 1097 (2008) (upholding dismissal of action
under Gobin, where plaintiff “never claimed harm to his reputation”); Classic
Communications v. Rural Telephone Service, 995 F.Supp. 1185, 1188 (D. Kan. 1998) (“[t]o
state a claim for defamation under Kansas law, the plaintiff must plead … harm to the
reputation of the person defamed); Fisher v. Lynch, 571 F.Supp.2d 1230, 1233 (D. Kan.
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2008) (Kansas law requires the plaintiff plead and prove “actual damage to his
reputation”).
This court has previously found that generic allegations of reputational injury
are insufficient to meet the requirement of Fed.R.Civ.Pr. 9(g) that claims of special
damage be definitely alleged. In Woodmont Corp. v. Rockwood Center Partnership, 811
F.Supp. 1478, 1484 (D. Kan. 1993), the court observed that:
The existence of special damages is an essential ingredient of plaintiff's
claim for relief. 5 Wright, Miller and Kane, FEDERAL PRACTICE AND
PROCEDURE, § 1310 at 702 (1990). In Paragraph 14 of the complaint,
plaintiff has merely made the general allegation that defendants' public
statements damaged its business reputation. It has not named any
customer whose business was lost as a result of the statement, nor has it
alleged the amount of such loss. Cf. Thompson v. Osawatomie Publishing Co.,
159 Kan. 562, 564, 156 P.2d 506 (1945). The plaintiff's allegations are
insufficient, in our judgment, to satisfy the dictates of Rule 9(g).
Similarly, in Alblulimir v. U-Haul Co. of Kansas, No. 11-4014-EFM, 2011 U.S. Dist. LEXIS
75191, *10 (D. Kan. July 13, 2011), where the owner of a vehicle leasing dealership was
told by U-Haul that her cars were dirty, the court dismissed the action for failure to
plead the damages necessary under Kansas law, since “nothing in Ablulimir’s
pleadings can be construed to allege that her reputation in the community was
damaged.” Because the Amended Complaint makes no allegations of public
dissemination of the alleged defamatory comment or that Garcia’s reputation has been
harmed, the claim is properly dismissed.
Finally, the defendants seek dismissal of the plaintiff’s claim against Carrera for
tortious interference with contractual relations. They contend that the claim must fail,
since this tort requires proof that the defendant interfered with the contractual relations
8

between the plaintiff and a third party. See Mack Laundry Service v. Mission Associates, 19
Kan.App.2d 553, 873 P.2d 219, 225 (1994) (citing Prosser & Keeton, Law of Torts § 129
(5th ed. 1984)). A corporate agent, acting within scope of his employment, cannot be
held liable for tortious interference with a contract to which the corporation is a party,
because the agent is not a third party to the contract or expectancy. Diederich v.
Yarnevich, 409 Kan.App.2d 108, 196 P.3d 411, 418 (2008).
Garcia responds by arguing that Carrera was not acting within the scope of his
employment in reporting the alleged assault. Rather, as the Amended Complaint
alleges, he made the report of the alleged battery “maliciously,” done “in a manner
calculated to deprive Plaintiff of the benefit of continuing his economically beneficial
employment relationship.” (Dkt. 23, at ¶ 25). The defendants’ only rejoinder is that
Garcia does not explicitly allege that “Carrera was not acting in his official capacity” at
the time of the alleged defamation. (Dkt. 28, at 7).
Kansas law defines “malice” as “‘evil-mindedness or specific intent to injure’ or
as a state of mind characterized by an intent to do a harmful act without a reasonable
justification or excuse.” Turner v. Halliburton Co., 240 Kan. 1, 8, 722 P.2d 1106 (1986).
Generally, an allegation of malice is inconsistent with the scope of employment. See
Williams v. Community Drive-In Theater, 214 Kan. 359, 520 P.2d 1296 (1974) (“if … an
employee is motivated entirely by personal reasons such as malice or spite or by a
desire to accomplish some unlawful purpose and does not have for its purpose the
furtherance of the employer's business, it will be considered personal to the employee”).

9

The court finds that the Amended Complaint may be fairly read to include the
allegation that Carrera was acting outside the scope of his employment for purposes of
Count III.
Accordingly, the court will dismiss that part of Count I to the extent that it raises
claims under Sections 7 and 8 of the NLRA, as well as the defamation claim advanced in
Count II. The plaintiff’s Count I FLSA retaliation claim against the Tyson entities, and
Count III tortious interference action against Carrera, remain.
IT IS SO ORDERED this 20th day of August, 2012, that the defendants’ Motion to
Dismiss (Dkt. 24) is granted in part, as provided herein.

s/J. Thomas Marten
J. Thomas Marten, Judge

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