Twenty Years After Murphy v. City of Topeka: an Overview of Kansas Retaliatory and Public Policy Wrongful Discharge Law
| Publication year | 2003 |
| Pages | 20-29 |
72 J. Kan. Bar Assn. 2, 20-29 (2003). Twenty Years After Murphy v. City of Topeka: An Overview of Kansas Retaliatory and Public Policy Wrongful Discharge Law
72 J. Kan. Bar Assn. 2, 20-29 (2003)
I. Introduction
Kansas first recognized a public policy based exception to the employment-at-will rule 21 years ago in Murphy v. City of Topeka.[1] The Murphy court held that employees who are fired for filing workers' compensation claims can sue their former employers for wrongful discharge. Since Murphy was decided, Kansas courts have expanded the scope of public policy protections for at-will employees and fleshed out the contours of retaliatory discharge law. Although federal statutory discrimination cases often receive more attention, common law wrongful discharge claims have spawned numerous appellate opinions. In the past two years alone courts have examined supervisor liability, liability (or lack thereof) for internal whistle-blowing, and the scope of the "after acquired evidence" affirmative defense, among other issues. Still, unresolved issues remain.
This article provides an overview of the development of Kansas wrongful discharge law over the past twenty years. Although claims for "wrongful discharge" stem not only from public policy but also for the breach of expressed or implied terms of employment contracts, this article focuses on legal issues concerning non-contractual (i.e., public policy) based wrongful discharge claims.[2]
II. The Seminal Cases
In Murphy, a former city agency employee injured himself at work and filed a workers' compensation claim. He was later terminated and sued the city and certain supervisory personnel for wrongful discharge. The trial court dismissed his suit. One of the issues on appeal was whether a cause of action existed for an at-will employee who is terminated for filing a workers' compensation claim.[3] The Murphy court, relying on the public policy expressed in the Kansas Workers' Compensation Act, ruled that such a claim existed.[4]
In Palmer v. Brown,[5] the Kansas Supreme Court broadened the public policy exception to the at-will doctrine established in Murphy. The Palmer court recognized a cause of action for employees discharged for "whistle blowing." The plaintiff in Palmer was a medical technician who alleged that she had been fired for reporting to authorities that her coworkers and/or employer were billing Medicaid for lab work that had not been done. The Palmer court held:
[T]ermination of an employee in retaliation for the good faith reporting of a serious infraction of . . . 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.[6]
The court went on to explain what an employee must prove to win such a claim.
To maintain such action, an employee has the burden of proving by clear and convincing evidence, under the facts of the case, (1) 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; (2) the employer had knowledge of the employee's reporting of such violation prior to discharge of the employee; and (3) the employee was discharged in retaliation for making the report. (4) 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, jealously or personal gain.[7]
Thus, after Palmer Kansas law recognized two types of public-policy based common law wrongful discharge claims: retaliatory termination related to filing workers' compensation claims and retaliatory termination related to whistle-blowing.[8]
III. Issues Pertaining to Whistle-Blowing Claims
A. Protected Activity
A threshold question in any whistle-blowing case is whether the plaintiff has in fact "blown the whistle" within the meaning of Palmer as to be entitled to protection from adverse employment action. Two main issues in this regard are: (1) did the employee report, complain, or "blow the whistle" to an appropriate authority; and (2) did the employee report, complain, or "blow the whistle" on a matter that justifies protection, i.e., a rule, regulation or law "pertaining to public health, safety, and general welfare?"
1. Internal Whistle-Blowing
Courts throughout the country are split as to whether an employee must report or complain to someone outside the company, or whether complaining to officials within the company will suffice to trigger whistle-blower protection. In Kansas, the court's language in Palmer seems to be clear on this issue; it specifically states that reports made "to either company management or law enforcement officials" are actionable.[9] Despite this broad language, subsequent cases have questioned whether complaints to company management are in fact protected.
In Moyer v. Allen Freight Lines, Inc.[10] the Kansas Court of Appeals upheld a plaintiff's judgment that stemmed from internal whistle-blowing. In Judge Lewis's grudging concurrence, however, he stated that although Palmer controlled the issue, he did not believe that internal whistle-blowing should be protected. He viewed the extension of the tort of "whistle-blowing" to internal complaints as "illogical" and as expanding the tort "far beyond what it was ever meant to be."[11] Judge Lewis requested that the Kansas Supreme Court clarify whether internal whistle-blowing is indeed protected under Kansas law.[12]
Judge Briscoe, like Judge Lewis, also did not believe that internal whistle-blowing should be protected. In dissenting from the majority opinion, she pointed out that the portion of the Palmer decision that seemingly supported internal whistle-blowing as being actionable was "mere dicta" under the facts of Palmer.[13] Judge Briscoe questioned whether the Palmer court actually meant what it said. She noted that Palmer required, as an element of the cause of action, that the employer know about the report; if internal reporting was meant to be protected, this requirement would be superfluous because it would be satisfied in every internal-whistle-blowing case. She also cited authority from Illinois which refused to recognize internal whistle-blowing as being actionable.[14] According to Judge Briscoe, "Whether our Supreme Court would expand whistle-blower protection to internal reporting . . . remains to be seen" and "[u]ntil and unless the Kansas Supreme Court specifically recognizes internal whistle-blowing as an exception to the employment at will doctrine, neither [the Court of Appeals] nor the district courts have any basis for permitting recovery of such a claim."[15]
Last year, ten years after Judge Lewis' plea to the Kansas Supreme Court to clarify whether internal reporting was actionable, the Supreme Court addressed the issue in Connelly v. State Highway Patrol.[16] Unfortunately, the Supreme Court did not decisively settle the issue.
In Connelly four highway patrol troopers complained to their superiors about being told not to enforce vehicle weight limit laws against farmers, despite the risk that federal funds would be forfeited if such laws were not enforced. After their complaints, all four troopers were discharged in connection with a departmental reorganization. They then sued for, among other things, common law whistle-blowing.[17] After jury verdicts in the plaintiffs' favor, one of the issues on appeal was whether internal whistle-blowing was actionable.
The plaintiffs argued that the Court of Appeals in Moyer and several federal courts applying Kansas law had correctly ruled that internal reporting was protected under the plain language of Palmer. The plaintiffs also relied on the fact that the Palmer decision stated that reporting infractions to "law enforcement officials" was specifically mentioned as being actionable, and that their internal complaints were to other law enforcement officials.
In addressing the issue, the Connelly court noted Judge Lewis' and Judge Briscoe's opinions in Moyer (in which they questioned whether internal whistle-blowing was or should be actionable under Palmer).[18] The Connelly court went on to survey the law in other jurisdictions, noting the split in authority. The court also cited pertinent scholarly articles on the subject, but did not make clear which authorities it found most persuasive.[19] Ultimately, the court ruled in favor of the troopers, but did so without expressly stating whether internal reporting to non-law enforcement officials will support a retaliation claim. It stated:
While there are good reasons to retreat from the broad language of Palmer, and certainly not every instance of internal complaint should be actionable whistle-blowing, we hold here that the actions of the troopers in openly denouncing and protesting within their chains of command to other "law enforcement officials" illegal activity in not enforcing laws designed for public safety may be protected internal whistle-blowing and was correctly submitted to the jury for its determination.[20]
Accordingly, rather than conclusively establish the internal whistle-blowing rule, the court instead chose to decide the case on the fact that the internal complaints happened to be made to law enforcement officers because of the type of jobs the plaintiffs held; their "higher management" happened to be law officers.
The language chosen by the Connelly court, "there are good reasons to retreat from the broad language of Palmer, and certainly not every instance of internal complaint should be actionable whistle-blowing,"...
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