Debra Roxberry v. Robertson and Penn, Inc., Also Known As National Service Company, 963 F.2d 382, 10th Cir. (1992)
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Scribd Government DocsDebra Roxberry v. Robertson and Penn, Inc., Also Known As National Service Company, 963 F.2d 382, 10th Cir. (1992)
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Scribd Government Docs963 F.
2d 382
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Debra ROXBERRY, Plaintiff-Appellant,
v.
ROBERTSON AND PENN, INC., also known as National
Service
Company, Defendant-Appellee.
No. 91-3330.
United States Court of Appeals, Tenth Circuit.
May 15, 1992.
Before LOGAN, BARRETT and EBEL, Circuit Judges.
ORDER AND JUDGMENT*
BARRETT, Senior Circuit Judge.
After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
The sole issue presented on appeal is whether the district court erred in granting
summary judgment to the defendant-appellee, Robertson And Penn, Inc., on the
ground that plaintiff-appellant Roxberry had failed to state a cause of action for
wrongful discharge by retaliation for whistle-blowing because Roxberry
reported the claimed contract violation to the victim rather than to either
company management or law enforcement officials.
The district court relied on Palmer v. Brown, 242 Kan. 893, 752 P.2d 685
(Kan.1988) which holds that the whistle-blowing must be reported "... to either
company management or law enforcement officials" in order to support a cause
of action in tort for employment termination in retaliation for good faith
reporting of infraction of rules, regulations or laws. Id. at 900.
We AFFIRM substantially for the reasons set forth in the district court
Memorandum and Order dated and filed September 30, 1991, a copy of which
is attached hereto and by reference made a part hereof. We deny appellant's
motion for certification of question to the Supreme Court of the State of
Kansas.
ATTACHMENT
5 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
IN
KANSAS
6DEBBIE ROXBERRY, Plaintiff,
7vs.
8ROBERTSON AND PENN, INC., a/k/a National Service Company, Defendant.
No. 90-1323-K
MEMORANDUM AND ORDER
9
This matter is before the court on defendant Robertson and Penn, Inc.'s motion
for summary judgment.
10
Debbie Roxberry, plaintiff and a former employee of the defendant, filed suit
against the defendant seeking compensatory damages for alleged retaliatory
discharge. Plaintiff contends she was discharged in retaliation for reporting
improper acts of the defendant in its performance under a contract with the
United States of America. In its motion for summary judgment, defendant
asserts a lack of jurisdiction based upon diversity or a federal question, and
contends plaintiff was discharged for good cause.
11
Summary judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show
there is no genuine issue as to any material fact, and that the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a
motion for summary judgment, the court must resolve all disputed facts in favor
of the party resisting summary judgment. White v. General Motors Corp., Inc.,
908 F.2d 669, 670 (10th Cir.1990), cert. denied, 59 U.S.L.W. 3441 (1991).
Summary judgment shall be denied if the moving party fails to demonstrate its
entitlement beyond a reasonable doubt. Norton v. Liddel, 620 F.2d 1375, 1381
(10th Cir.1980).
12
The moving party is entitled to judgment as a matter of law when the
nonmoving party fails to make a sufficient showing of an essential element of
the case for which the nonmoving party has the burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986), cert.
denied, 484 U.S. 1066 (1988). In resisting a motion for summary judgment, the
nonmoving party may not rely upon mere allegations, or denials, contained in
its pleadings or briefs. Rather, the party must come forward with specific facts
showing the presence of a genuine issue for trial. Abercrombie v. City of
Catoosa, 896 F.2d 1228, 1230 (10th Cir.1990). One of the principal purposes of
summary judgment is to isolate and dispose of factually unsupported claims or
defenses, and the rule should be interpreted in a way that allows it to
accomplish this purpose. Celotex, 477 U.S. at 323-24.
13
A hearing on the motion was held on September 25, 1991. At that time both
parties presented arguments and the court announced its decision. Consistent
with its decision at the hearing, and for the reasons cited herein, the court
grants defendant's motion for summary judgment.
14
Upon review of the record and the parties' arguments concerning summary
judgment, the court makes the following findings of undisputed material facts.
15
Defendant, a Missouri corporation, is a private contractor to the United States
of America for laundry and dry cleaning services at Fort Riley. Plaintiff was
employed by defendant as supervisor of the dry cleaning department until her
termination on May 3, 1990.
16
In March, 1990, plaintiff told Willie Dawson that certain shirts had been
washed rather than dry cleaned, the process for which they had been delivered.
Willie Dawson was an employee of JC & N, a private contractor to the United
States government which operated the Central Issue Facility at Fort Riley.
Upon inquiry, plaintiff told her project manager that she had informed Dawson
some shirts were washed rather than dry cleaned. It is a controverted fact as to
who initiated the conversation between Dawson and plaintiff. Plaintiff asserts
that Dawson approached her and asked about the shirts. Defendant contends
plaintiff initiated the conversation with Dawson and then lied about that fact
when questioned by the project manager.
17
On May 3, 1990, plaintiff's employment with defendant was terminated. She
alleges the discharge was in retaliation for informing Dawson of the alleged
contract violation. Defendant claims it had permission to wash the shirts and
plaintiff, therefore, had no wrongdoing to report.
18
Defendant also contends plaintiff was discharged for good cause based upon
her untruthfulness in reporting the conversation with Dawson, refusing to learn
all the duties required of a supervisor, and bearing a bad attitude at work.
Finally, defendant argues plaintiff was not a whistle-blower because she did not
report the incident to the proper authorities.
Conclusions of Law
19
The first issue the court considers is whether plaintiff has sufficiently pleaded a
cause of action for retaliatory discharge. The record indicates plaintiff was an
at-will employee. The employment of an at-will employee is terminable at the
will of either party at any time and for any cause. Kistler v. Life Care Centers
of America, Inc., 620 F.Supp. 1268, 1269 (D.C.Kan.1985). Kansas courts,
however, have recognized a public policy exception to this general rule.
Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981) (employee
discharged for filing worker's compensation claim has actionable tort claim).
20
In Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988), the Kansas Supreme
Court recognized that an at-will employee has a cause of action against an
employer for discharge in retaliation for "whistle-blowing". Therein the court
stated:
21
Public policy requires that citizens in a democracy be protected from reprisals
for performing their civil duty of reporting infractions of rules, regulations, or
the law pertaining to public health, safety, and the general welfare. Thus, we
have no hesitation in holding termination of an employee in retaliation for the
good faith reporting of a serious infraction of such rules, regulations or the law
by a co-worker or an employer to either company management or law
enforcement officials (whistle-blowing) is an actionable tort. To maintain such
an action, an employee has the burden of proving by clear and convincing
evidence, under the facts of the case, a reasonably prudent person would have
concluded the employee's co-worker or employer was engaged in activities in
violation of rules, regulations, or the law pertaining to public health, safety, and
the general welfare; the employer had knowledge of the employee's reporting of
such violation prior to discharge of the employee; and the employee was
discharged in retaliation for making the report. However, the whistle-blowing
must have been done out of a good faith concern over the wrongful activity
reported rather than from a corrupt motive such as malice, spite, jealousy or
personal gain.
22
Palmer, 242 Kan. at 900 (emphasis added).
23
In the present matter, plaintiff has failed to establish a case of whistle-blowing.
Plaintiff asserts she reported the alleged contract violation to Willie Dawson.
Willie Dawson, however, was simply an employee of a private company who
also contracted with the United States government. In order to maintain an
action for retaliatory discharge based upon whistle-blowing, the plaintiff must
report an alleged infraction to either company management or law enforcement.
Palmer, 242 Kan. at 900.
24
In those jurisdictions which have recognized retaliatory discharge for whistleblowing as an actionable tort, the plaintiff has revealed to the proper authorities
evidence of unlawful acts by the employer. See McQuary v. Bel Air
Convalescent Home, Inc., 69 Or.App. 107, 684 P.2d 21 (1984) (plaintiff
reported alleged patient mistreatment to state health division); Watassek v.
Michigan, Dept. of Mental Health, 143 Mich.App. 556, 372 N.W.2d 617 (1985)
(state employee reported alleged patient abuse to immediate supervisor);
Harless v. First Nat. Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978) (plaintiff
reported to proper banking authorities illegal overcharges on credit accounts by
employer bank). Even in those cases where the court declined to impose
employer liability for retaliatory discharge of whistle-blowers, the plaintiff had
reported the alleged violations to proper authorities. See Marin v. Jacuzzi, 224
Cal.App.2d 549, 36 Cal.Rptr. 880 (1964) (plaintiff reported alleged securities
violations to Dept. of Investment, Div. of Corporations of the State of
California); Pavolini v. Bard Air Corp., 88 App.Div.2d 714, 451 N.Y.S.2d 288
(1982) (plaintiff reported employer safety violation to Federal Aviation
Administration); Welch v. Brown's Nursing Home, 20 Ohio App.3d 15, 484
N.E.2d 178 (1984) (plaintiff reported alleged patient abuse to State
Commission on Aging).
25
Plaintiff has failed to plead a cause of action for retaliatory discharge. The court
finds insufficient evidence to establish that plaintiff reported the alleged
misconduct to her supervisor or any member of company management, or to
any member of the controlling governmental agency. Therefore, summary
judgment is proper.
26
Based upon the above conclusion, the court finds it unnecessary to rule on
additional issues raised by the parties.
27
IT IS THEREFORE ORDERED this 30th day of September, 1991, that the
defendant's motion for summary judgment (Dkt. No. 61) is granted.
This Order and Judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
