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Flenker v. Willamette Industries, Inc.

United States Court of Appeals, Tenth Circuit
Dec 23, 1998
162 F.3d 1083 (10th Cir. 1998)

Opinion

No. 96-3242.

Filed December 23, 1998.

Appeal From The United States District Court For The District Of Kansas (D.C. No. 95-2480-KHV).

Stephen J. Dennis, Dennis, Stanton Redlingshafer, L.L.C., Fairway, Kansas, for Plaintiff-Appellant.

Rody P. Biggert (Andrew M. Altschul with him on briefs), Seyfarth, Shaw, Fairweather Geraldson, Chicago, Illinois, for Defendant-Appellee.

Before HENRY, LUCERO, and MILES-LAGRANGE, Circuit Judges.

The Honorable Vicki Miles-LaGrange, United States District Judge of the Western District of Oklahoma, sitting by designation.


This is an appeal from a summary judgment entered in favor of an employer, Willamette Industries, Inc. ("Willamette"), in a tort action under Kansas law for retaliatory discharge. The district court held that plaintiff-appellant Mr. Flenker's retaliatory discharge claim was precluded because section 11(c) of the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. § 660(c) (1994), provided him an adequate alternative remedy. Mr. Flenker appealed.

Because we determined that resolution of the appeal turned on an unsettled issue of Kansas law, we certified the following question to the Kansas Supreme Court: "Does the remedy provided by OSHA § 11(c) for employees who allege that they have been discharged in retaliation for filing complaints under that statute preclude the filing of a Kansas common law wrongful discharge claim under Kansas's public policy exception to at-will employment?" The Kansas Supreme Court, under the facts submitted to it in our certification, answered "no." Flenker v. Willamette Industries, Inc., No. 80408, 1998 WL 771624, at *5, *10 (Kan. Nov. 6, 1998).

Applying the Kansas Supreme Court's answer here, we hold that OSHA § 11(c) does not preclude Mr. Flenker's Kansas common law wrongful discharge claim. Thus, with the benefit of this decision previously unavailable to the district court, we now VACATE the grant of summary judgment to Willamette and REMAND for further proceedings.


Summaries of

Flenker v. Willamette Industries, Inc.

United States Court of Appeals, Tenth Circuit
Dec 23, 1998
162 F.3d 1083 (10th Cir. 1998)
Case details for

Flenker v. Willamette Industries, Inc.

Case Details

Full title:DAVID FLENKER, Plaintiff-Appellant, v. WILLAMETTE INDUSTRIES, INC.…

Court:United States Court of Appeals, Tenth Circuit

Date published: Dec 23, 1998

Citations

162 F.3d 1083 (10th Cir. 1998)

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