Summary
In Conus v. Watson's of Kansas City, Inc., Case No. 11-cv-2149-JAR-KGG, 2011 WL 4348315 (D. Kan. Sept. 16, 2011), Judge Robinson granted a motion to dismiss a count seeking relief under Kansas common law for wrongful termination in a case alleging plaintiff was fired after having contacted the Kansas Department of Labor and the U.S. Department of Labor to report his employer's wage and hour violations.
Summary of this case from Ade v. Conklin Cars Salina, L.L.C.Opinion
Case No. 11-cv-2149-JAR/KGG.
September 16, 2011
MEMORANDUM AND ORDER
This matter comes before the Court on defendant's Motion to Dismiss Count I of Plaintiff's Petition (Doc. 5) under Rule 12(b)(6) of the Federal Rules of Civil Procedure. This case involves claims under the Fair Labor Standards Act ("FLSA") for violations of federal law and a claim under Kansas common law for wrongful termination. This motion is fully briefed, and the Court is prepared to rule. As explained more fully below, the Court grants defendant's Motion to Dismiss Count I of Plaintiff's Petition because the remedy available under the FLSA precludes relief under Kansas common law.
I. Legal Standard for Motion to Dismiss
II. Factual Allegations
Bell Atl. Corp v. Twombly, 550 U.S 544, 554 (2007).
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). "`Plausibility' in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs `have not nudged their claims across the line from conceivable to plausible.'" Id. (internal citations omitted).
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 2009 (2009) (quoting Twombly, 550 U.S. at 555, 557).
Id.
Doc. 1.
III. Discussion
Kansas is an at-will employment jurisdiction, meaning that absent an express or implied contractual agreement an employer is free to terminate employment at will. The Kansas Supreme Court, however, has recognized an exception to the at-will employment doctrine for retaliatory discharge. This common law exception, based on public policy concerns, seeks to discourage employers from firing employees who exercise their rights under labor-management regulation statutes. The application of the public policy exception, however, is unnecessary when a plaintiff is already protected by a statutory remedy because the statutory remedy will adequately address the state's public policy concerns. Thus, under the adequate alternative remedy doctrine, if an adequate federal or state statutory remedy is available, the public policy claim under Kansas common law is precluded. Therefore, to state a plausible claim for retaliatory discharge under Kansas common law, a plaintiff must not only present factual allegations showing conduct that violates public policy, but the plaintiff also must have no adequate alternative remedy under federal or state statutory law.
Flenker v. Willamette Indus., Inc., 967 P.2d 295, 298 (Kan. 1998) (citing Johnston v. Farmers Alliance Mutual Ins. Co., 545 P.2d 312 (Kan. 1976)).
Id.
Id. (citing Palmer v. Brown, 752 P.2d 685 (Kan. 1988)); Scott v. Topeka Performing Arts Ctr, Inc., 69 F. Supp. 2d 1325, 1328 (D. Kan. 1999) (quoting Brown v. United Methodist Homes for the Aged, 815 P.2d 72 (Kan. 1991)).
See Conner v. Schnuck Mkts, Inc., 906 F. Supp. 606, 615 (D. Kan. 1995) (citing Polson v. Davis, 895 F.2d 705, 709-10 (10th Cir. 1990)).
Id.
Id.
Here, defendant argues that the federal claim in Count II provides an adequate alternative remedy to the Kansas common law claim in Count I and thus asks the Court to dismiss Count I. In Count I, plaintiff seeks relief under Kansas common law for wrongful termination, and in Count II, he seeks relief under the FLSA for retaliatory discharge. Plaintiff relies on essentially the same factual allegations to form the basis of both claims, but plaintiff seeks emotional distress and punitive damages under the Kansas common law claim in Count I. Plaintiff opposes defendant's motion to dismiss on two grounds: (1) plaintiff has pled two plausible alternative claims and need not elect only one at the pleading stage, and (2) the FLSA provides an inadequate remedy because it does not allow the same damages available under the Kansas common law claim.
Plaintiff also argues that the FLSA does not preempt the state law claim. This argument, however, is irrelevant because defendant's motion argues that the FLSA precludes recovery under state law, and not that the FLSA preempts state law.
Overlooking the adequate alternative remedy doctrine asserted by defendant, plaintiff's first argument claims that the Court must not dismiss Count I because plaintiff is allowed to plead any plausible claim for relief at the pleading stage. Thus, plaintiff argues, the Court should not force the plaintiff to elect between the two claims at this early stage but should allow him to pursue his claim for retaliatory discharge under both Kansas common law and the FLSA. Under the alternative remedies doctrine, however, a plaintiff has no plausible claim under Kansas common law if an adequate remedy exists under federal law. Therefore, if precluded, the Kansas common law claim is implausible at any stage of litigation. Thus, the motion before the court turns not on the stage of the litigation but on plaintiff's second argument, that the FLSA offers an inadequate remedy for plaintiff's wrongful termination claim.
The adequacy of the FLSA remedy for retaliatory discharge has already been examined by both courts in this district and the Tenth Circuit. The Tenth Circuit held in Conner v. Schnuck Markets, Inc. that the FLSA precludes a common law wrongful termination claim under the alternative adequate remedy doctrine. The plaintiff challenged whether federal statutory law could preclude the Kansas common law action, and the Tenth Circuit found that it could. Conner, however, did not discuss whether the FLSA provides the full remedy available under the Kansas common law claim because the plaintiff in Conner conceded that issue.
Conner, 906 F. Supp. 606, aff'd, 121 F.3d 1390 (10th Cir. 1997); Scott v. Topeka Performing Arts Ctr, Inc., 69 F. Supp. 2d 1325 (D. Kan. 1999); Whipkey v. Cencon L.L.C., No. 05-2281-CM, 2006 WL 2433859 (D. Kan. Aug. 21, 2006).
Conner, 121 F.3d at 1399.
Id.
See id.
Since Conner, however, cases in this district have examined the ability of the FLSA to provide a full remedy. These cases have relied on Conner to find the remedy in the FLSA an adequate alternative to the remedy provided under Kansas common law. For example, in Whipkey v. Cencon L.L.C, the court found that plaintiff's FLSA retaliation claim and the Kansas common law retaliation claim were mirror images of each other. Further, the court stated that the FLSA "allow[ed] for several remedies, including employment, reinstatement, payment of wages lost, liquidated damages, attorney fees, and costs." As a result, Whipkey found the remedies available under the FLSA adequate.
Scott, 69 F. Supp. 2d 1325; Whipkey, 2006 WL 243385.
Scott, 69 F. Supp. 2d at 1329; Whipkey, 2006 WL 243385, at *3.
Whipkey, 2006 WL 243385, at *3.
Id. (citing 29 U.S.C. § 216(b)).
Id.
The court in Whipkey did not, however, discuss the availability of punitive damages under the FLSA. Here, unlike in Whipkey, the plaintiff seeks emotional distress and punitive damages. So the Court's analysis here must consider how emotional distress and punitive damages affect the adequacy determination. As plaintiff notes, courts disagree about whether punitive damages are available under FLSA. While the Tenth Circuit has not decided the issue, two district courts within the Tenth Circuit have determine that punitive damages are unavailable. For example, the Utah District Court has determined that while punitive damages are unavailable, emotional distress damages are available under FLSA, allowing the plaintiff "to recover compensatory damages for the full consequences of retaliation." But even if damages for emotional distress are available, the unavailability of punitive damages under the FLSA would make the damages under Kansas common law more comprehensive. This difference in damages, however, does not necessarily make the remedy available under the FLSA an inadequate alternative to plaintiff's common law claim. An adequate remedy can exist under federal law even if the Kansas common law remedy may offer "more comprehensive relief." An exact alternative remedy is not required for preclusion, only an adequate alternative remedy.
Compare Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 933 (11th Cir. 2000) (holding punitive damages unavailable under FLSA), Allen v. Garden City Co-Op, Inc., 651 F. Supp. 2d 1249 (D. Kan. 2009) (holding punitive damages unavailable under FLSA), and Johnston v. Davis Sec., Inc., 217 F. Supp. 2d 1224 (D. Utah 2002) (holding punitive damages unavailable under FLSA but stating that emotional distress damages may be available), with Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d 108 (7th Cir. 1990) (holding punitive damages available under FLSA).
Allen, 651 F. Supp. 2d at 1265; Johnston, 217 F. Supp 2d at 1232-33.
Johnston, 217 F. Supp. 2d at 1233.
Polson v. Davis, 635 F. Supp. 1130, 1150 (D. Kan. 1986), aff'd, 895 F.2d 705 (10th Cir. 1990).
The Kansas District Court has addressed the issue of whether less than comprehensive damages could make a remedy inadequate in Scott v. Topeka Performing Arts Center, Inc. In Scott, the plaintiff argued that the FLSA provided an inadequate remedy because it did not "include all of the remedies available under her state-law claim, in particular, damages for loss of reputation and emotional distress and punitive damages." The court declined to focus only on whether the remedy under the FLSA was co-extensive with the remedy under Kansas common law. Instead, to determine the adequacy of the remedy, the court focused whether the alternative remedy offered adequate protection for the employee's state public policy right against her employer. Because "[d]istrict courts have `the historic power of equity to provide complete relief in light of the [FLSA's] purposes,'" the court found that the FLSA remedies adequately vindicated the state public policy claim.
69 F. Supp. 2d 1325 (D. Kan. 1999).
Id. at 1330.
Id.
Id.
Id. at 1331.
The Tenth Circuit has also stated that unavailability of punitive damages does not make a federal remedy inadequate. In Masters v. Daniel International Corp., the Tenth Circuit decided that the Energy Reorganization Act ("ERA") precluded a Kansas common law retaliatory claim despite the unavailability of punitive damages: "We find that the remedies provided by the Act are sufficient to have satisfied [plaintiff's] claim despite the fact that exemplary damages would not have been recoverable."
See Masters v. Daniel Int'l Corp., 917 F.2d 455, 457 (10th Cir. 1990).
Id. (explaining that exemplary damages are only available under the ERA "if a person fails to comply with an order issued by the Secretary of Labor" and that provision was not applicable).
Nevertheless, as plaintiff points out, the Kansas Supreme Court has recently made clear that the lack of punitive damages can be a factor in determining adequacy. In Hysten v. Burlington Northern Santa Fe Railway Co., the Kansas Supreme Court examined whether the Federal Employers' Liability Act ("FELA") provided an adequate alternative remedy to a Kansas common law retaliation claim. The court noted that it "did not regard the unavailability of compensatory damages for pain and suffering and punitive damages as trivial," and the court stated that the differences in damages influenced its decision to find the remedy under FELA inadequate. Still, the main focus of the opinion in Hysten surrounded the lack of process and claimant control and not the unavailability of punitive damages.
Hysten v. Burlington N. Santa Fe Ry. Co., 108 P.3d 437, 445 (Kan. 2004).
Id. at 444-45.
Id. at 445.
See id. a 444-45.
Further, Hysten relied on precedent created in Flenker v. Williamette Industries, Inc. in making its adequacy determination. And in Flenker, while discussing the inadequacy of the remedy under OSHA, the Kansas Supreme Court intimated that the FLSA provides adequate relief when quoting another case: "`It is obvious from the language of the two statutes that although an employee may obtain any type of relief possible under the FLSA through the employee's own actions, the relief available under OSHA is limited to what the Secretary of Labor deems appropriate.'" Again, like in Hysten, the Kansas Supreme Court focused on the employee's ability to control its own private action in federal court and not on the specific damages available. Additionally, Flenker cited Masters in its opinion and explained that the ERA provided an adequate alternative remedy to Kansas common law retaliatory discharge. The court took no issue with the fact that Masters found the remedy provided under the ERA adequate despite the unavailability of punitive damages. Thus, Flenker implicitly approved a finding of adequacy absent the availability of punitive damages. Therefore, under Kansas Supreme Court precedent, the lack of emotional distress and punitive damages alone does not necessitate a finding of inadequacy. Instead, an adequacy determination should focus on all aspects of the alternative remedy, including the process available for relief and the litigants ability to control its own private action in federal court.
Id. at 444.
Flenker v. Williamette Indus., Inc., 967 P.2d 295, 301 (Kan. 1998) (quoting Shawcross v. Pyro Prods., Inc., 916 S.W.2d 342 (Mo. Ct. App. 1995)).
Id. at 299-302.
Id. at 299 (citing Masters v. Daniel Int'l Corp., 917 F.2d 455, 457 (10th Cir. 1990)).
See id.
The Kansas District Court has considered similar factors in determining the adequacy of other statutory remedies. See Daniels v. United Parcel Service, Inc., No. 09-2304-JAR, 2011 WL 2531099, *26 (D. Kan. June 24, 2011) ("`Characteristics of an adequate statutory remedy include ample filing time, limits on the discretion of an administrative official in awarding relief, and an opportunity for the employee to pursue relief after administrative remedies are exhausted.'" (quoting Chapman v. Atchison Casting Corp., No. 99-2094-KHV, 2000 WL 1469315, at *2 (D. Kan. Sept 25, 2000))).
Relying on Hysten and Flenker, the Court determines that even if the FLSA does not provide plaintiffs the opportunity to seek punitive damages, it still offers an adequate alternative remedy to the Kansas common law claim for wrongful termination. The FLSA provides employees with the opportunity to bring a private action in federal court to vindicate their retaliatory discharge claims. Additionally, an employer is "liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of [the FLSA], including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages." The variety of damages offered under the FLSA provides adequate relief to an aggrieved employee and alleviates the Kansas public policy concerns surrounding wrongful termination. Thus, the FLSA provides an adequate alternative remedy and precludes the Kansas common law claim for wrongful termination. As a result, plaintiff can state no plausible claim for relief under Kansas common law, and Count I of the plaintiff's claim must be dismissed.
Id.
IT IS THEREFORE ORDERED BY THE COURT that Defendant's Motion to Dismiss Count I of the Plaintiff's Petition (Doc. 5) is GRANTED.
IT IS FURTHER ORDERED that Count I of plaintiff's Complaint be and hereby is DISMISSED.