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ORTEGA v. IBP5/27/1994
The opinion of the court was delivered by
This case is filed in the United States District Court for the District of Kansas and comes to this court by certification under the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. Judge Kathryn H. Vratil certified to this court the following question:
Where an employee-at-will claims that an employer terminated his or her employment in retaliation for the exercise of statutory rights under the Workers' Compensation Act, K.S.A. 44-501 et seq., and that he or she is therefore entitled to maintain a cause of action for wrongful discharge under Kansas law, is plaintiff required to prove that claim by clear and convincing evidence?
Highly summarized from the facts given by the certifying court, the facts are as follows:
Plaintiff Emma Tovar began working for defendant IBP, Inc., in 1975. Plaintiff Arnoldo Ortega began working for IBP in 1988. Both plaintiffs were employees-at-will. Both were injured on the job, Tovar in April 1989 and Ortega in May 1990. Tovar filed a workers compensation claim in August 1989 and Ortega filed a workers compensation claim in November 1990. Both plaintiffs were in the care of a physician and both complained of continued pain.
IBP placed Tovar on light duty and in a position within her physical capabilities after she suffered a back injury, but she eventually obtained temporary total disability benefits and was off work completely. She returned to work but then received a series of medical excuses for four- to six-week periods and was again off work completely. In April 1991, Tovar's physician gave her a six-month off-work slip. IBP questioned why Tovar had been and would be off work for so long, and eventually Tovar's physician released her on May 31, 1991, for part-time work. IBP informed Tovar's attorney that she was to report to work on June 17, 1991, but this date was later changed to July 1, 1991. Tovar was aware that she was to begin work on that date, but she failed to report to work on that date. There is some dispute as to whether she ever reported for work after July 1, 1991. IBP ultimately gave Tovar another deadline by which to return to work, August 16, 1991, which was in turn extended to August 19, 1991. When Tovar failed to report on that date, IBP terminated her employment. IBP contends the termination was due to "job abandonment."
After an injury to his shoulder, Ortega was placed in a restricted-duty job where he would only use one arm. He later underwent
surgery on his shoulder. On November 8, 1990, Ortega's one-arm restriction was lifted and he was permitted to use his injured arm as long as he did not raise it over shoulder level or lift more than five pounds. Because IBP had no such restricted-duty position available, it placed Ortega on a medical leave of absence, during which time he received temporary total disability benefits. On January 7, 1991, Ortega's physician determined that he could lift up to 10 pounds with his injured arm. Ortega returned to work on January 14, 1991. On May 13, 1991, Ortega was assigned to the dew claw machine in keeping with his medical restrictions. He worked the machine that day with no complaints. On May 14, 1991, he was given an unscheduled break because the machine broke down. After resuming work, he requested a break because his hands were hurting. His supervisor declined the request. Ortega ceased working his position and refused to resume work when requested. Ortega was taken to a supervisor's office, where a verbal altercation ensued. Ortega was suspended at that time. On May 15, 1991, the IBP personnel director interviewed Ortega and reviewed his f
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