United States District Court, D. Kansas
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiff David Kimbrell filed suit against defendant, his former employer, asserting a single claim under Kansas law for workers' compensation retaliation. This matter is presently before the court on defendant's motion for summary judgment (doc. 31). As will be explained, the motion is granted.
The following facts are uncontroverted or related in the light most favorable to plaintiff as the nonmoving party. Defendant Amsted Rail Company, Inc. operates its Griffin Wheel facility in Kansas City, Kansas. Griffin Wheel is a steel foundry that manufactures railroad car wheels. From 2006 through July 2011, plaintiff David Kimbrell worked as an hourly employee for defendant at its Griffin Wheel facility, primarily as a furnace helper. In early July 2011, defendant promoted plaintiff to a salaried production supervisor. Plaintiff held that position until his termination in June 2012.
In 2009, the Griffin Wheel plant occasionally shut down due to economic downturn and workload. During these shutdowns, plaintiff and other Griffin Wheel employees collected unemployment benefits through the state of Kansas. Upon the plant's reopening, however, plaintiff continued to collect unemployment benefits while working despite the fact that he was clearly not entitled to such benefits. To keep collecting benefits, plaintiff was required to certify on a weekly basis that he was not earning wages. Although an employer receives notification of the initial filing for unemployment benefits, no notice is sent concerning the weekly certifications required to continue receiving benefits. For 18 weeks in 2009, plaintiff misrepresented that he earned no wages when he was, in fact, working for and receiving a paycheck from defendant. Plaintiff does not dispute that he received between $423 and $448 in unemployment benefits during each of these weeks and that he ultimately received an overpayment of more than $6500.
In 2010, the state of Kansas sent plaintiff a determination letter finding that plaintiff had failed to report employment and/or correct earnings while receiving unemployment benefits and that plaintiff had committed unemployment fraud by willfully and knowingly making false representations to receive benefits not due. The determination letter sought immediate repayment of the overpayment plus interest. Plaintiff testified that he has repaid the full amount to the state and that he never advised defendant of the state's determination.
In Mary or early April 2012, Brian Robinson, Griffin Wheel's Manager of human Resources and Safety, received a report of unemployment benefit charges from the state of Kansas. The report identified six current employees, including plaintiff, and, in parentheses, noted certain dollar amounts charged against defendant's unemployment account for each employee. Because Mr. Robinson was not certain what the parentheses or the amounts therein indicated, he contacted Gina McCullough, defendant's Director of Human Resources. Ms. McCullough asked Mr. Robinson to investigate the matter and to report back to her. Thereafter, Mr. Robinson contacted the state of Kansas and was advised that the parentheses indicated an overpayment of unemployment benefits beyond that which an employee was lawfully entitled. During this same time frame, defendant's third-party vendor responsible for handling unemployment claims provided Mr. Robinson with determination letters from the state that found that the six employees had, in fact, overdrawn unemployment. Mr. Robinson also independently verified the overpayments by reviewing payroll records and evaluating whether the employees were working during the period claimed.
Mr. Robinson's investigation, then, revealed that six current employees, including plaintiff, claimed unemployment benefits while working at Griffin Wheel. Mr. Robinson passed his findings along to Ms. McCullough, who then reached out to Wayne Luce, defendant's Vice President of Human Resources, and provided him with a report. Mr. Luce also reviewed the determination letters provided by defendant's third-party vendor. Mr. Robinson, Ms. McCullough and Mr. Luce then talked via phone conference to discuss the status of the investigation and appropriate next steps. Following the phone conference, Mr. Robinson conducted interviews with and suspended the six employees pending the outcome of the investigation. Plaintiff was interviewed and suspended on June 8, 2012. Just a few days prior to his suspension, on June 4, 2012, plaintiff rolled his ankle at work. He reported the injury to Michelle Colvin, his direct supervisor and Kelly Roberts, who handles workplace injuries for the plant. Plaintiff did not request any medical treatment at the time and stated that he would "see how it goes." He subsequently took two to three days off work.
Ultimately, Mr. Luce, in consultation with Ms. McCullough, Mr. Robinson and Michal DeCola, Griffin Wheel's Plant Manager, made the decision to terminate the employment of all six employees, including plaintiff. Mr. Luce testified that although they considered the fact that plaintiff had repaid the money and that he was a seven-year employee, they determined on balance that the misrepresentation warranted termination rather than a less severe form of discipline. On June 21, 2012, defendant notified each of the six employees that their employment was terminated for collecting unemployment benefits during a time in which they were working for Griffin Wheel. It is undisputed that Mr. Luce and Ms. McCullough had no knowledge of plaintiff's ankle injury until after plaintiff's discharge. Mr. Robinson was aware of plaintiff's ankle injury at the time of his discharge and Mr. DeCola may have been aware of the injury. Both of those individuals averred that they had no reason to believe that plaintiff might file a claim for workers' compensation based on that injury.
On July 5, 2012, two weeks after his termination, plaintiff emailed Kelly Roberts, advised her that he was still experiencing pain and swelling related to his ankle roll and asked whether he was still able to see "a work comp doctor as previously offered?" Defendant sent plaintiff to KU MedWest where a doctor observed that plaintiff walked without a limp and had full range of motions and strength in his ankle. Plaintiff was instructed to use an ACE bandage and take ibuprofen or ice his ankle if it became aggravated. Plaintiff was not given any work restrictions and no physician ever issued plaintiff work restrictions or prescribed medication in connection with plaintiff's June 4, 2012 ankle roll. Following the visit to KU MedWest, plaintiff did not return for further medical treatment and never asked Griffin Wheel for additional treatment. Plaintiff never filed a workers' compensation claim for his ankle injury and he characterizes that injury as "the same" as 2008 ankle sprain for which he was neither disciplined nor discharged. With respect to plaintiff's 2008 ankle injury, it is further undisputed that Griffin Wheel provided him medical treatment and, thereafter, that they ensured that he performed tasks within his medical restrictions.
Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.
II. Summary Judgment Standard
"Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed.R.Civ.P. 56(a). A factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). "The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the ...