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Fowler v. Criticare Home Health Services8/4/2000
aliatory discharge for whistle-blowing theory: In addition to alleging that he was fired after he refused to engage in unlawful conduct, he alleges that he was discharged after reporting his supervisor's unlawful conduct. In addition to these allegations of fact, the petition tracked language and requirements familiar from Kansas' seminal case on the whistle-blowing exception to the doctrine of employment at will: the allegedly unlawful conduct violated a statute designed to protect "public health and safety"; Criticare personnel were aware of Fowler's refusal to violate the law prior to his discharge; and Fowler reported the supervisor's conduct "in good faith." See Palmer v. Brown, 242 Kan. 893, 900, 752 P.2d 685 (1988). His petition could have been more explicit, but its wording was not fatal to his pursuit of his whistle-blowing claim.
Because we find, as discussed below, that the district court was correct in granting summary judgment to Criticare on the merits of both claims, despite its error on the pleading issue, we need not reverse for trial. See Bergstrom, 266 Kan. at 875-76 (quoting Bank of Kansas v. Davison, 253 Kan. 780, 792, 861 P.2d 806 ).
Retaliatory Discharge for Whistle-Blowing
The trial court originally granted Criticare's motion for summary judgment on the claim of retaliatory discharge for whistle-blowing because it found (1) Fowler's discussion with Moore was not the type of internal reporting contemplated by Palmer, 242 Kan. 893, and (2) Fowler's report to UPS could not form the basis of a whistle-blower claim because there was no evidence Moore or Garber knew before they fired Fowler that he had carried out his threat to make such a report.
In Palmer, the Supreme Court laid out the elements of a claim for retaliatory discharge for whistle-blowing:
"To maintain such action, an employee has the burden of proving by clear and convincing evidence, under the facts of the case, 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; the employer had knowledge of the employee's reporting of such violation prior to discharge of the employee; and the employee was discharged in retaliation for making the report." (Emphasis added.) 242 Kan. at 900.
In addition, the reporting must have been done in good faith, and the infraction must have been reported to "either company management or law enforcement officials." (Emphasis added.) 242 Kan. at 900.
We agree with the district court that neither evidence of Fowler's discussion with Moore nor of his report to UPS was sufficient for him to survive summary judgment. Fowler's disagreement with Moore was just that; it did not qualify as an internal report to management of illegal co-worker or company conduct. Further, we are unpersuaded by Fowler's argument that Moore was the general manager, and that Fowler understood the initial directive to have come from Moore's boss, the owner of the company. There was nothing about the fact that Fowler worked for a smaller company that prevented him from reporting to law enforcement, if he felt company reporting avenues were closed to him. Palmer simply was not meant to endow every workplace dispute over the water cooler on company practices and the effect of government regulation with whistle-blower overtones. A worker who wants to come under the protections of that decision must seek out the intervention of a higher authority, either inside or outside of the company.
The evidence regarding Fowler's report to UPS also does not meet the Palmer standard we h
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