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Flenker v. Willamette Industries11/6/1998
The United States Court of Appeals for the Tenth Circuit has certified the following question to this court under K.S.A. 60-3201:
"Does the remedy provided by OSHA § 11(c) [29 U.S.C. § 660(c) (1994)] 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 answer is, "no."
This case arises out of the March 11, 1994, firing of David Flenker, a worker at Willamette Industries, Inc.'s (Willamette) corrugated paper manufacturing plant. Willamette's basis for firing Flenker was that he failed to comply with the terms of the rehabilitation agreement he had signed under Willamette's alcohol and drug use policy. Flenker contends that he was fired because he reported unsafe working conditions to Willamette and the Occupational Safety and Health Administration (OSHA).
Our analysis of the certified question is advanced by posing and answering two secondary questions.
1. Does the rule in Coleman v. Safeway Stores, Inc., 242 Kan. 804, 812-13, 752 P.2d 645 (1988), extend to situations other than the collective bargaining agreement context? The answer is "yes."
2. If Coleman extends beyond the collective bargaining context, is the remedy in OSHA § 11(c) "adequate"? The answer is "no."
FACTS
The Tenth Circuit Certification Order informs us that:
"Mr. Flenker worked as a Class C mechanic for Willamette, a corrugated paper manufacturer. After a dispute with his temporary supervisor concerning the safety of a piece of machinery known as a corrugated downstacker device, Mr. Flenker made it known at the plant that he intended to file a complaint with OSHA regarding the machinery.
"Mr. Flenker received a disciplinary warning as a result of the dispute with his temporary supervisor. The next day, Mr. Flenker received a three-day suspension from his supervisor for his improper installation of gauges and for the improper repair of sprockets on the bandler line.
"Mr. Flenker later filed his OSHA complaint, alleging violations concerning the safety of the corrugated downstacker and other matters. OSHA subsequently made a surprise investigation of the Willamette plant. Although the downstacker met OSHA safety standards, OSHA found that several of Mr. Flenker's other complaints were valid.
"About a month later, plant manager Dale McGinnis terminated Mr. Flenker's employment, contending Mr. Flenker failed to obey the terms of a Rehabilitation Agreement he had signed under Willamette's Alcohol and Drug Use Policy. Mr. Flenker claims he was fired because he reported unsafe working conditions to Willamette and to OSHA.
"Shortly after his termination, Mr. Flenker filed a section 11(c) retaliatory discharge complaint with OSHA, which he later withdrew. Mr. Flenker was informed, presumably by an OSHA employee, that because he had fixed the machine in question, which had been a part of his section 11(c) claim, he no longer had a claim under OSHA. In September 1995, he filed this action in state court. Willamette removed the action to federal court pursuant to 28 U.S.C. § 1446(b).
"Mr. Flenker claims that he was discharged because he exercised his statutory right to report unsafe working conditions to his employer. He seeks compensatory damages for lost wages and benefits and emotional pain and suffering."
Flenker chose to litigate his claims in state court; however, Willamette removed the lawsuit to federal court.
Discussion
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