Sanjuan v. IBP Inc.

Page 1290

275 F.3d 1290 (10th Cir. 2001)

GUILLERMO SANJUAN, Plaintiff - Appellee, v. IBP, INC., Defendant - Appellant.

No. 00-3098

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 11, 2002

Appeal from the United States District Court for the District of Kansas (D.C. No. 94-CV-1541) [Copyrighted Material Omitted] David O. Alegria, McCullough, Wareheim & LaBunker, P.A., Topeka, Kansas, for Plaintiff-Appellee.

Boyd A. Byers (Jack Focht, with him on the briefs), Foulston & Siefkin L.L.P., Wichita, Kansas, for Defendant-Appellant.

Before TACHA, Chief Judge, REAVLEY,^* and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Following a jury trial, IBP, Inc., was found to have retaliated against an employee, Guillermo Sanjuan, in violation of Kansas public policy, after Sanjuan exercised rights available to him under the Kansas Workers Compensation Act, Kan. Stat. Ann. 44-501 to -5125. On appeal, IBP makes numerous allegations of error by the district court, including a refusal to grant judgment as a matter of law; issuance of legally erroneous jury instructions; and assessment of punitive damages despite insufficient evidence. The central issue presented is whether Kansas law requires a plaintiff seeking to recover on a workers compensation retaliatory discharge claim to demonstrate that he was able to perform his regular duties on the day he was discharged. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

I

Sanjuan, a Mexican immigrant who has been in this country since he was a teenager, began working for IBP, "the world's largest producer of beef, pork and related allied products," at age twenty. Sanjuan v. IBP, Inc., 78 F. Supp. 2d 1195, 1198 (D. Kan. 1999) (Sanjuan II). There he performed the strenuous task of a flanker--that is, "remov[ing] the hide and flank off cattle by pulling up with an air knife to cut the hide with one hand and ripping the hide off with the other hand." (Appellant's Br. at 78.) In July 1992, after he began experiencing pain in his left arm, shoulder, and back, a company doctor diagnosed Sanjuan with repetitive motion overuse syndrome and restricted him to such light duties as labeling boxes, stamping beef, and driving cattle with cattle prods.

Although Sanjuan had never been disciplined for his job performance prior to the injury, that soon changed. While he was on light duty, Sanjuan was written up ten times for alleged disciplinary violations. The district court explained:

Supervisors refused to explain to Sanjuan, who spoke little English, the nature of the alleged violations . . . . Sanjuan testified that his supervisors failed to train him and explain how to do the light duty jobs. Sanjuan also testified that his supervisors mistreated him by yelling at him, threatening him if he did not return to his regular job, and not allowing him to seek medical care. At trial, Sanjuan's supervisors denied any mistreatment and said that Sanjuan was written up for mistakes he made on the job.

On December 23, 1992, Sanjuan was driving cattle through a chute, using a cattle prod to keep the line moving. A cow fell down, causing the line to stop for five minutes. Sanjuan testified that the cow slipped and fell due to moisture in the chute. . . . IBP supervisors testified that Sanjuan over-shocked the cow, and had been warned about over-shocking cattle in the past. Sanjuan testified that he had not been warned about over-shocking cattle.

Sanjuan v. IBP, Inc., 90 F. Supp. 2d 1208, 1210 (D. Kan. 2000) (Sanjuan III). On December 23, 1992, Sanjuan was fired.

Sanjuan brought this suit, claiming he was discharged in retaliation for exercising his rights under the Kansas Workers Compensation Act. A trial resulted in a $39,076 judgment for Sanjuan, which this Court reversed on the basis of erroneous admission of hearsay evidence. Sanjuan v. IBP, Inc., 160 F.3d 1291, 1296-98 (10th Cir. 1998) (Sanjuan I). On retrial, the jury returned another verdict for Sanjuan, this time for $99,532, and found that Sanjuan was entitled to an award of punitive damages. Based on that verdict, the district court awarded Sanjuan $200,000 in punitive damages. Sanjuan II, 78 F. Supp. 2d at 1198.

On appeal, IBP challenges the district court's judgment, claiming (1) that the district court should have granted its motion for judgment as a matter of law because the uncontroverted evidence at trial was that plaintiff could not return to his regular job on the day he was fired without violating his medical restrictions; (2) that the district court should have granted its motion for a new trial because the jury instructions failed to apprise the jury that its verdict on whether plaintiff could return to his regular job must be based on medical restrictions and not plaintiff's personal belief; and (3) that the district court's assessment of punitive damages should be vacated because Sanjuan failed to prove by clear and convincing evidence that an IBP agent or employee authorized or ratified the retaliation against him.

II

At the outset, IBP makes the remarkable claim that under Kansas law, an employee must prove that he is "able to perform the duties of his regular job . . . within his medical restrictions at the time he was discharged." (Appellant's Br. at 10.) Because Sanjuan did not meet this burden, says IBP, the district court erred in denying its motion for judgment as a matter of law. We review the denial of judgment as a matter of law de novo and apply the same standard as the district court--that is, whether "the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion." Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th Cir. 1999) (quotation omitted).

The employment-at-will doctrine, which holds that employment is terminable at the will of the employer or the employee "has . . . eroded in Kansas and in other states," Ortega v. IBP, Inc., 874 P.2d 1188, 1191 (Kan. 1994), to the point that "Kansas now recognizes two exceptions to this rule." Stover v. Superior Indus. Int'l, Inc., 29 P.3d 967, 970 (Kan. Ct. App. 2000). "The first exception is for terminations that violate public policy. The second exception is for an implied-in-fact contract." Id. (citation omitted). The present controversy falls into the former category.

"Under Kansas law, an employer cannot fire an employee in retaliation for that employee filing a workers' compensation claim; the filing of such a claim represents the protected exercise of a statutory right." Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001). The Kansas Court of Appeals has observed, "To allow an employer to coerce employees in the free exercise of their rights [under the Workers Compensation Act] would substantially subvert the purpose of the act." Murphy v. City of Topeka, 630 P.2d 186, 192 (Kan. Ct. App. 1981).

Workers compensation retaliatory discharge cases are analyzed under a burden-shifting approach. Rebarchek v. Farmers Coop. Elevator & Mercantile Ass'n, 35 P.3d 892, 898 (Kan. Dec. 7, 2001). A plaintiff makes a prima facie claim by showing (1) that he filed a claim for workers compensation benefits or sustained an injury for which he might assert a future claim for such benefits; (2) that the employer had knowledge of the compensation claim or the fact that he sustained a work-related injury for which the plaintiff might file a future claim for benefits; (3) that the employer terminated the plaintiff's employment; and (4) that a causal connection existed between the protected activity or injury and the termination. Sanjuan I, 160 F.3d at 1298, cited in Rebarchek, 35 P.3d at 898-99. The burden then shifts to the employer to show "an articulate, non-retaliatory reason for the discharge." Bausman, 252 F.3d at 1116 (citation omitted). "If the employer meets this burden, the burden shifts back to the plaintiff but the plaintiff must show clear and convincing evidence that he or she was terminated in retaliation for exercising rights under the Workers' Compensation Act." Id. (quotation omitted).¹

The mechanics of a workers compensation retaliatory discharge case are such that an employer may avoid liability by demonstrating that the discharge was motivated by the employee's inability to return to his duties, rather than because the employee exercised his rights under the Workers Compensation Act. It does not follow, however, that retaliatory animus can never exist if the discharged employee is unable to perform his duties at the time he was fired. Several Kansas cases are instructive on this proposition, beginning with Griffin v. Dodge City Cooperative Exchange, 927 P.2d 958 (Kan. Ct. App. 1996).

In Griffin, plaintiff was injured while operating heavy machinery and was diagnosed with degenerative disc disease, a condition made symptomatic by the accident. Permanent medical restrictions limited plaintiff to "driving about 2 hours at a time, with frequent breaks . . . , lifting up to 50 pounds, limited bending and stooping. No driving on rough terrain, no bumpy roads, no driving heavy equipment." Id. at 961 (quotation omitted). "By his own estimate, [plaintiff] could perform only 5% to 10% of the job duties he was performing prior to his injury." Id. The Plaintiff was consequently discharged, and he sued his employer for retaliatory discharge. The district court granted the employer's motion for summary judgment. On appeal, the plaintiff claimed summary judgment was improper because he was "'ready, willing and able' to resume his job," in spite of his medical restrictions. Id. at 962. The Kansas Court of Appeals disagreed on the bases that the claim was not raised in the lower court, there actually was no evidence that plaintiff was "ready, willing, and able" to return to his job, and nothing in a statute cited by plaintiff--a statute which is not at issue in the instant matter--"indicates that an employer can force an employee, or an employee can elect, to...