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WAGHER v. GUY'S FOODS12/9/1994
The opinion of the court was delivered by
This is a sex discrimination claim under the Kansas Act Against Discrimination (KAAD), K.S.A. 44-1001 et seq., by Deborah Wagher against Guy's Foods, Inc., (Guy's Foods) based on failure to hire. The district court denied Guy's Foods' motion for summary judgment on two issues — that suit was barred by the statute of limitations and that Wagher was ineligible
for the job due to Guy's Foods' nepotism policy. The case was tried to a jury, which awarded back pay, front pay, and damages for pain and suffering to Wagher. Guy's Foods appeals.
In September and December 1988, Deborah Wagher submitted applications to Guy's Foods for the position of route sales driver. A route sales driver is responsible for distribution of Guy's Foods' snack products on a preestablished route and for sales development within that territory.
There were openings for route sales drivers in September and December 1988, but Wagher was not hired. Male drivers were hired who had applied during the same period. It was the position of Guy's Foods that the men were hired because they had experience in route sales. It was the position of Wagher that she was not hired because she is a woman.
In December 1988, Dale Tilford, the district sales manager for Guy's Foods, told Wagher that she was not hired because the district general manager, John Kenna, said he did not hire women. On February 1, 1989, Wagher filed a complaint with the Kansas Commission on Civil Rights (KCCR), now the Kansas Human Rights Commission (KHRC). On January 8, 1991, she filed a complaint in federal district court, seeking relief under Title VII and the KAAD. On April 9, 1991, the KHRC dismissed the investigation of Wagher's complaint pursuant to its policy to do so when a civil action based on the same allegations has been filed. On July 31, 1991, the federal district court entered summary judgment against Wagher on her Title VII claim on the ground that it was untimely and dismissed the state claim without prejudice for lack of pendent jurisdiction. On December 20, 1991, Wagher filed suit in state court.
The case was tried to a jury in July 1992. The district court entered judgment on the jury's verdict in the amount of $76,200. Back pay was awarded in the amount of $47,700; front pay was awarded in the amount of $27,000; and damages for pain, suffering, and humiliation were awarded in the amount of $1,500. Additional facts will be related as are necessary to the determination of the issues raised by the appellant.
Guy's Foods contends that Wagher's claim was barred by the statute of limitations. Wagher's claim is under the KAAD, which
does not contain a statute of limitations for a civil suit. Guy's Foods filed a motion for summary judgment in the district court on the ground that Wagher's suit was barred by the two-year statute of limitations in K.S.A. 1993 Supp. 60-513. The district court denied the motion.
"Where the affirmative defense of the statute of limitations is asserted, summary judgment may be proper where there is no dispute or genuine issue as to the time when the statute commenced to run." Gilger v. Lee Constr., Inc., 249 Kan. 307, 311, 820 P.2d 390 (1991). In the present case, there is a legal issue about when the statute began to run, but there does not seem to be evidence in dispute on this point.
The district court noted that K.S.A. 60-512(2) provides a three-year limitations period for " n action upon a liability created by a statute other than a penalty or forfeiture." Based on this court's decision in Flanigan v. City of Leavenworth, 232 Kan. 522, 657 P.2d 555 (1983), howev
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