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Gertsch v. Central Electropolishing Co.6/29/2001
Appeal from Harper District Court; LARRY T. SOLOMON, judge.
Reversed and remanded.
Plaintiff Rory W. Gertsch appeals from a summary judgment in favor of Central Electropolishing Company (Celco) in Gertsch's retaliatory discharge claim. On appeal, Gertsch contends that the trial court inappropriately granted summary judgment because genuine issues of material fact remained. We agree and reverse and remand.
While employed at Celco, Gertsch suffered a work injury on February 11, 1997, when he rushed into a building to search for victims of a toxic chemical reaction. The chemical reaction occurred when other employees dipped the wrong metals into a vat of acid. Gertsch was not wearing a safety mask and suffered a severe injury when he inhaled toxic fumes.
Gertsch was in and out of the hospital from the date of his injury until February 15, 1997. During that time, the evidence indicates that Gertsch's treating physician mailed an off-work slip and spoke to Celco officials concerning Gertsch's medical treatment. The slip, dated Tuesday, February 12, stated Gertsch should not work for at least another 72 hours. On the following Monday and Tuesday, Gertsch had various medical appointments and was not released to return to work.
On Wednesday morning, February 19, 1997, Gertsch called his supervisor at Celco and told him he was going to be off work until the doctor released him. The supervisor requested a meeting with Gertsch that same day, and when they met, the supervisor handed Gertsch a termination notice. The notice read: " did not report in for 2 consecutive mornings."
The same day, Gertsch discussed his termination with the president and vice president of Celco. Gertsch recorded that meeting on tape. A transcript of the tape was submitted as part of Gertsch's pleadings. The transcript notes several gaps and inaudibles. However, the transcript showed the parties discussed the termination decision, that Gertsch had contacted an attorney, and the effects Gertsch's actions would have had on Celco's workers compensation insurance premiums. Gertsch states in his affidavit that during this meeting, the officers of Celco told him he was fired for contacting an attorney and because their workers compensation insurance carrier told them they had to fire him since he had contacted a lawyer. They also stated he was fired because he did not call in every day to inform them he had not been released to work.
On Tuesday, February 25, 1997, Gertsch returned to the doctor for a follow-up appointment. The doctor issued a work status note indicating that he was releasing Gertsch from limited to full trial of work and had counseled him on lung irritants.
At the summary judgment hearing, the trial court reasoned that the facts concerning the retaliatory discharge claim were controverted.
"In other words, was he discharged for absenteeism? Was he discharged because he exercised his rights? Are there other reasons not stated that justify his discharge?
"That is clearly controverted and if . . . I don't dismiss this case because I don't find Rowland and Griffin persuasive, we're going to trial."
The trial court further reasoned that Rowland v. Val-Agri, Inc., 13 Kan. App. 2d 149, 766 P.2d 819, rev. denied 243 Kan. 780 (1988), and Griffin v. Dodge City Cooperative Exchange, 23 Kan. App. 2d 139, 927 P.2d 958 (1996), rev. denied 261 Kan. 1084 (1997), imposed a threshold requirement to a retaliatory discharge claim. The trial court stated:
" he fact of the matter is, he can't maintain a retaliatory discharge cause of action if he can't go back to work. And I believe that is a prer
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