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Fowler v. Criticare Home Health Services8/4/2000
n writing. There is no evidence that he sought an exception to the purported policy by complying with the statute. Although it was the duty of the district court and it is our duty on appeal to view the evidence in the light most favorable to Fowler, the nonmoving party, we are not required to assume facts for which there is no record support. We need not take the accuracy of Fowler's premises on faith alone.
Fowler also cannot cure the deficiencies in this claim by saying that, even if the behavior Moore sought was not actually illegal, it was behavior Fowler "reasonably believed" was illegal. Although Palmer includes an employee's "reasonable belief" that certain conduct is illegal among the justifications for protected whistle-blowing, neither the Supreme Court nor the Kansas Legislature has said that such a belief is enough to protect what an employer would view as simple insubordination. The cases Fowler would have us rely on are whistle-blowing cases, rather than cases involving an employee's refusal to engage in conduct the employee reasonably believed was illegal. See Byle v. Anacomp, Inc., 854 F. Supp. 738, 746 (D. Kan. 1994); Pilcher v. Board of Wyandotte County Comm'rs, 14 Kan. App. 2d 206, 211, 787 P.2d 1204, rev. denied 246 Kan. 768 (1990); Cf. N.J. Stat. Ann. ยง 34:19-3 (2000) (New Jersey statute prohibiting employer from retaliating against employee who objects to activity employee "reasonably believes is in violation of a law" or is incompatible with clear mandate of public policy concerning public health, safety, or welfare).
Even if a "reasonable belief" were enough to excuse an employee from performance of a task assigned to him or her by a Kansas employer, again, there is no evidence that Fowler made any effort to arrive at such a belief in this case. He did not attempt to discern whether UPS would have refused to make an exception to its policy or whether another carrier would have refused to ship the items once the written notice of the statute was provided. He simply assumed that it was illegal to ship the guns and ammunition and that no carrier would ship them if fully informed. His assumption does not create a genuine issue of material fact on whether he held a "reasonable belief," especially when both the statute and policy on which he wishes to rely necessarily suggest that firearms and ammunition can be shipped lawfully on carriers such as UPS.
The district court's award of summary judgment in favor of Criticare is affirmed.
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