United States District Court, D. Kansas
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This is a civil action which is before the court upon defendant's motion to dismiss plaintiff's wrongful discharge claim and plaintiff's motion to amend the complaint. For the reasons described below, the court shall decline to exercise supplemental jurisdiction over plaintiff's wrongful discharge claim. This action will render moot defendant's motion to dismiss and plaintiff's motion to amend.
I. PLAINTIFF'S ORIGINAL COMPLAINT
Plaintiff's original complaint has two claims. The first claim is that defendant failed to pay plaintiff overtime as required under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. The second claim is a state-law wrongful discharge claim. Plaintiff asserts in the original complaint that his employment was wrongfully terminated for two reasons: first, because of plaintiff's refusal to violate federal and state law by operating a vehicle while under the influence of prescription medication; and second, to retaliate against plaintiff for complaining and reporting to defendant concerning safety problems with defendant's vehicles - in other words, whistleblowing. Plaintiff asserts federal question jurisdiction over the FLSA claim, pursuant to 28 U.S.C. § 1331. Plaintiff asserts supplemental jurisdiction over the wrongful discharge claim under 28 U.S.C. § 1367.
II. DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION AMEND
Defendant has filed a motion to dismiss plaintiff's second claim. The motion argues that Kansas law does not recognize a cause of action alleging termination for refusing to violate federal and state law. The motion further argues that plaintiff's allegations fail to assert a plausible claim for retaliation against whistleblowing.
In response, plaintiff has decided to drop his whistleblowing claim. But, plaintiff contends that Kansas law does recognize a cause of action alleging wrongful termination for refusing to violate federal and state law, and plaintiff has sought leave to amend the complaint to further elucidate the facts which plaintiff argues in support of such a claim. Defendant opposes the proposed amended complaint on the grounds that Kansas law does not recognize a cause of action for wrongful discharge upon the facts alleged by plaintiff.
Plaintiff's proposed amended complaint alleges that on March 13, 2013, after the work day, plaintiff took prescription cough medicine containing codeine. It further alleges that later that evening he was instructed by defendant to drive a tractor trailer at 6:30 a.m. the next morning from Kiowa, Kansas to another location. Plaintiff alleges that he told defendant's representative that the medication would still be in his system at that time and that it would be unlawful for plaintiff to drive the tractor trailer under those conditions. Plaintiff alleges that he was fired the next morning at which time he told defendant's representative that it was a violation of federal motor carrier regulations to drive a commercial motor vehicle while the prescription drug was in his system. Plaintiff claims he was told that the discharge decision had been made by the CEO of defendant. Plaintiff further alleges that defendant's representatives either knew it would be unlawful for plaintiff to drive the vehicle, or that they did not attempt to determine if would be legal. Plaintiff asserts that as the one-time Safety and Training Coordinator for defendant, he was familiar with the Federal Motor Carrier Safety Administration regulations.
III. THE COURT SHALL DECLINE TO EXERCISE SUPPLEMENTAL JURISDICTION OVER PLAINTIFF'S WRONGFUL DISCHARGE CLAIM.
The court finds that it is not clear whether a Kansas court would recognize a cause of action for wrongful discharge under the facts alleged by plaintiff. The Kansas Supreme Court has broadly stated that an action for retaliatory discharge could be brought when there has been retaliation against opposition to illegal activity or other actions contrary to public policy interests. In Brown v. United Methodist Homes for the Aged , 815 P.2d 72, 81 (Kan. 1991), the court stated:
A second exception [to the employment-at-will doctrine] has been recognized in suits of a tort nature for retaliatory discharge based on the theory that dismissal of employees for reasons violative of a particular public policy are actionable. Conduct of an employer violative of public policy and giving rise to a cause of action has been recognized when an employee is discharged in retaliation for opposing an illegal or unethical activity of the employer, in retaliation for filing workers compensation claims, in retaliation for exercising rights under labor-management relations statutes, as a penalty for refusing to take a polygraph exam, as a penalty for taking time to serve on jury duty, and for various other violations of public policy interests.
More recently, in Campbell v. Husky Hogs, LLC , 255 P.3d 1, 5 (Kan. 2011), the court seemed to expansively describe the "limited exception" to the at-will employment doctrine, stating: "case law makes it obvious that Kansas courts permit the common-law tort of retaliatory discharge as a limited exception to the at-will employment doctrine when it is necessary to protect a strongly held state public policy from being undermined."
In Fowler v. Criticare Home Health Services, Inc. , 10 P.3d 8 (Kan.App. 2000), the Kansas Court of Appeals avoided a direct answer to the question of whether Kansas recognizes an exception to the employment-at-will doctrine for a discharge in retaliation for refusing to violate the law. There, the plaintiff asserted that he was discharged in retaliation for refusing to break federal law regarding the shipment of firearms. Rather than deciding the ...