Thummel v. PSI Transport, LLC
Filing
38
MEMORANDUM AND ORDER denying 22 Motion for Judgment. See order for details. Signed by District Judge Monti L. Belot on 02/04/2015. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BETHA THUMMEL,
Plaintiff,
v.
PSI TRANSPORT, LLC,
Defendant.
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CIVIL ACTION
No.
14-1299-MLB
MEMORANDUM AND ORDER
This case comes before the court on defendant’s motion to
dismiss count 3 of plaintiff’s amended complaint.
(Doc. 22).
motion has been fully briefed and is ripe for decision.
27, 31).
I.
The
(Docs. 23,
Defendant’s motion is denied for the reasons herein.
Facts
Plaintiff was employed by defendant as an office manager.
Plaintiff’s brother, Jason Thompson, was employed by defendant as a
mechanic and shop manager.
On March 13, 2014, Thompson filed a
complaint with the Occupational Safety and Health Administration
(OSHA) regarding safety violations allegedly committed by defendant.
Defendant received Thompson’s complaint on March 19.
Plaintiff’s
employment was terminated by defendant’s manager, Ken Shaffer, who
informed plaintiff that the owner, Scott Foote, wanted plaintiff
terminated
because of the OSHA complaint.
Plaintiff filed this action alleging defendant terminated her
employment in retaliation for Thompson’s OSHA complaint.
In addition
to the retaliation claim, plaintiff alleges that defendant violated
the Fair Labor Standards Act, Title VII and the Family and Medical
Act.1
Leave
Defendant
moves
for
dismissal
of
the
retaliatory
discharge claim.
II.
Motion to Dismiss Standards
The standards this court must utilize upon a motion to dismiss
are well known. To withstand a motion to dismiss for failure to state
a claim, a complaint must contain enough allegations of fact to state
a claim to relief that is plausible on its face. Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)).
All well-
pleaded facts and the reasonable inferences derived from those facts
are viewed in the light most favorable to plaintiff.
Archuleta v.
Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations,
however, have no bearing upon this court’s consideration.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).
Shero v.
In the
end, the issue is not whether plaintiff will ultimately prevail, but
whether he is entitled to offer evidence to support his claims.
Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).
III. Analysis
Defendant moves to dismiss the retaliatory discharge claim on the
basis that Kansas law does not provide whistleblower protection to
siblings.2
will.
Kansas applies the common law doctrine of employment at
See Morriss v. Coleman Co., Inc., 241 Kan. 501, 508, 738 P.2d
1
The alleged facts pertinent to those claims are not relevant
to the court’s decision on the pending motion.
2
Defendant also argues that plaintiff cannot maintain a federal
whistleblower retaliation claim because OSHA does not create a private
cause of action. Plaintiff responds that her retaliation claim is
based on state law. Therefore, this issue is moot.
-2-
841, 846 (1987).
Unless the parties have an express or implied
contract, an employer can end the employment relationship “for good
cause, for no cause, or even for a wrong cause.”
Id.
The only
exceptions to the rule of at-will employment are based on public
policy.
See Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 176,
872 P.2d 252, 261 (1994).
The two exceptions are (1) where an
employer discharges an employee for exercising rights under the
workers' compensation laws; and (2) where an employer discharges an
employee for a good faith report or threat to report a serious
infraction of rules, regulations, or law pertaining to the public
health, safety and the general welfare by a coworker or employer, i.e.
whistleblowing. See Ali v. Douglas Cable Comm'rs, 929 F. Supp. 1362,
1387 (D. Kan. 1996).
In Marinhagen v. Boster, Inc., 17 Kan. App.2d 532, 840 P.2d 534
(1992), the Kansas Court of Appeals was faced with the question of
whether a plaintiff could maintain a cause of action when he was
terminated after his spouse exercised her rights under the workers’
compensation laws.
The Kansas Court of Appeals held that the
plaintiff could maintain an action for retaliatory discharge, citing
to a federal court decision which held that Title VII protected a
third party from retaliation based on the filing of a Title VII
complaint by a close relative.
Defendant contends that the Marinhagen decision only extends
retaliatory discharge claims to spouses and that this court must
dismiss the claim because the Kansas state courts have yet to be
confronted with this question and federal courts should not create a
new cause of action where none exists, citing Satterlee v. Allen
-3-
Press, Inc., 443 F. Supp.2d 1236 (D. Kan. 2006) and Haas v. Farmers
Ins. Group, 930 F.2d 33, 1991 WL 49768 (10th Cir. Mar. 29, 1991).
Satterlee and Haas, however, are distinguishable. In Satterlee, Judge
Robinson declined supplemental jurisdiction on the state law claims
after granting summary judgment on the federal claims.
In declining
supplemental jurisdiction, Judge Robinson noted that Kansas courts had
not yet addressed the claim raised by the plaintiff.
Defendant also cites Haas for the proposition that the “court did
not have authority to confer or create a cause of action under state
law where none exists.
Further, the court ‘cannot, and will not,
guess or speculate on whether [a state court] will subsequently adopt
or create such a cause of action.”
citation
to
Haas
is
Circuit’s decision.
an
inaccurate
(Doc. 31 at 2).
representation
Defendant’s
of
the
Tenth
The portions cited by defendant are in fact
quotations from the district court’s decision which was on review.
The Tenth Circuit stated that the language in the district court’s
order was confusing but held that the district court correctly
concluded Oklahoma did not recognize a cause of action pleaded by the
plaintiff.
The Tenth Circuit did not hold that federal courts have
no authority to determine if a cause of action can be maintained under
state law.
“Absent controlling precedent, the federal court must
attempt to predict how the state's highest court would resolve the
issue.”
Royal Maccabees Life Ins. Co. v. Choren, 393 F.3d 1175, 1180
(10th Cir. 2005)(emphasis supplied); see also Fidelity Union Trust Co.
v. Field, 311 U.S. 169, 177-178, 61 S. Ct. 176, 178 (1940)(it is the
duty of the federal courts to ascertain and apply state law “even
though it has not been expounded by the highest court of the State.”)
-4-
Turning to the issue, this court must determine whether the
Kansas Supreme Court would hold that a plaintiff who was terminated
after a sibling filed an OSHA complaint could maintain a claim for
whistleblowing under Kansas law.
Absent the Marinhagen decision,
Kansas courts have not been confronted with a retaliatory discharge
claim concerning a third-party reprisal.
The Supreme Court, however,
recently addressed the issue with respect to Title VII.
In Thompson
v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011), the plaintiff alleged
that he was terminated after his fiancee filed a gender discrimination
charge with the EEOC. The Supreme Court held that the plaintiff could
maintain an action for retaliation under Title VII. The Supreme Court
declined to identify a “fixed class of
relationships for which
third-party reprisals are unlawful” but held that “firing a close
family member will almost always meet the Burlington standard.”
Id.
at 868.
In Marinhagen, the Kansas Court of Appeals turned to federal
decisions applying Title VII to determine whether a spouse had a claim
for retaliatory discharge.
The Court of Appeals quoted a District of
Columbia decision which held that allowing an employer to retaliate
against a third party would deter persons from exercising their rights
under Title VII.
1978).
De Medina v. Reinhardt, 444 F. Supp. 573 (D.D.C.
In adopting the reasoning in De Medina, the Court of Appeals
held that Kansas law would be similarly frustrated if an employer was
allowed to retaliate against a spouse who exercised their rights under
Kansas law.
Therefore, the court believes that Kansas courts would
be persuaded by the Thompson decision and agree that firing a close
family member, specifically a sibling, in retaliation for filing an
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OSHA
complaint
is
sufficient
to
state
a
claim
of
retaliatory
discharge.
Plaintiff’s
amended
complaint
alleges
that
plaintiff
was
terminated because plaintiff’s brother filed a complaint with OSHA.
Therefore,
plaintiff
has
sufficiently
alleged
an
action
for
retaliatory discharge under Kansas law.
IV. Conclusion
Defendant’s motion to dismiss count 3 of the amended complaint
is denied.
(Doc. 22).
A motion for reconsideration of this order is not encouraged.
Any such motion shall not exceed 3 double-spaced pages and shall
strictly comply with the standards enunciated by this court in Comeau
v. Rupp, 810 F. Supp. 1172, 1174 (1992).
The response to any motion
for reconsideration shall not exceed 3 double-spaced pages.
No reply
shall be filed.
IT IS SO ORDERED.
Dated this
4th
day of February 2015, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE
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