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Fowler v. Criticare Home Health Services8/4/2000
f federal law.
"23. Defendant had knowledge of Plaintiff's refusal to violate 18 U.S.C. ยง 922(e) prior to its decision to discharge him from employment.
"24. Plaintiff's refusal to engage in unlawful conduct, his reporting to Defendant that its actions were unlawful, and his reporting Defendant's actions to outside entities were done in good faith.
"25. The statute which Defendant violated, in transporting a package known to contain firearms and ammunition, was enacted in furtherance of public health and safety.
"26. Defendant retaliated against Plaintiff for his refusal to violate a federal criminal statute by terminating his employment a mere five days after the event occurred."
After the deadline for amendment of pleadings and the close of discovery, but before the scheduled pretrial conference, the district court granted summary judgment to Criticare on Fowler's claim that he was terminated for refusing to violate the law, noting that the statute cited by Fowler did not make it "unlawful for a person to ship firearms or ammunition by common carrier so long as written notice is provided to the carrier that such firearm or ammunition is being transported or shipped." The district court also observed that there was no evidence Fowler was told to ship the firearms and ammunition in a way that would violate the statute.
With regard to Fowler's whistle-blowing claim, the district court said Fowler's disagreement with and threat toward Moore did not rise to the level of a whistle-blower report to company management. In addition, the district court found there was no evidence Moore or Garber knew of Fowler's actual report to UPS before Fowler's termination.
Fowler filed a motion for reconsideration, which had the opposite of its intended effect. At the hearing on the motion, the district court found that Fowler failed to plead retaliatory discharge for whistle-blowing in his petition and modified its previous decision, concluding that it should not have considered the merits of the whistle-blowing claim at all.
On appeal, Fowler first questions the district court's decision that the petition failed to plead a whistle-blowing claim. He then takes issue with the summary judgment on the merits of his two claims. For the reasons set forth below, we affirm.
Standard of Review
The standard of review applicable to cases disposed of by the district court on motion for summary judgment is a well-established and familiar one:
"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. . . . On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
In short, if Fowler failed to come forward with evidence sufficient to reach a jury on each element of his claims, summary judgment was appropriate.
Sufficiency of Pleading
Fowler argues first that the district court's decision on his motion to reconsider was error. He relies on Kansas' stated policy of notice pleading and contends that his petition was sufficient to inform Criticare he intended to pursue a retaliatory discharge claim based on whistle
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