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Anderson v. Par Electrical Contractors, Inc.

United States District Court, D. Kansas

June 5, 2018




         This matter comes before the court upon plaintiff Thomas Anderson's Motion for Summary Judgment (Doc. 58) and Motion in Limine (Doc. 60) and defendant's Motion for Leave to File Sur-Reply (Doc. 73) and Motion for Summary Judgment (Doc. 65).

         The pretrial order sets out the parties' claims and is generally the operative pleading at this point in the litigation. However, the magistrate judge also allowed plaintiff to file an amended complaint after the pretrial order was entered, for the purpose of dismissing a claim. The remaining claims are Count I for negligence and Count II for wrongful termination-retaliation. Defendant's motion for summary judgment seeks judgment as a matter of law on the negligence claim and plaintiff's motion seeks summary judgment on the retaliation claim.

         I. Facts

         The following facts are either stipulated in the final pretrial order, now the operative pleading in this case, or were undisputed in the parties' summary judgment briefing:

         On August 18, 2014, plaintiff was employed as a lineman by defendant Par Electrical Contractors, Inc., working on a Google Fiber project. Shawn Stewart was plaintiff's immediate supervisor, and Mr. Stewart reported to Eric Younghans. The project required plaintiff to replace old utility poles, moving any overhead lines and equipment on old poles to new poles. Defendant had a safety rule called the Minimal Approach Distance (MAD). It required linemen to wear rubber gloves and sleeves when working within five feet of an energized source.

         Plaintiff was working on a new and old pole that were about two feet apart. He went up in a lift bucket along with an apprentice, Ron Mayden. They removed lines and “then went back to the old pole to score a plastic conduit that housed three power lines coming from a nearby church.” (Doc. 53, at 2.) The scoring was done with a circular power saw. To use it, plaintiff removed rubber gloves and sleeves and put on leather gloves. After plaintiff cut the right side of the conduit, he handed the saw to Mr. Mayden and held two of the three lines. While he was holding the lines, a current passed through his hands, burning his hands and arms. Plaintiff was treated for nine days at the University of Kansas Hospital. He had to have skin grafts from his thigh to his arms.

         Mr. Stewart, the foreman on the project, was present when the accident took place. After the accident, but before the project was completed, defendant took photographs of the site. On August 19, 2014, Dale Querrey, defendant's president, fired plaintiff. Sometime before plaintiff was fired, defendant fired Mr. Stewart for his failure to adequately supervise plaintiff. On August 27, 2014, defendant wrote plaintiff a letter telling him that his employment was terminated for violating a safety rule and denying his workers compensation claim for the same reason. Plaintiff's claim is covered by the Kansas Workers Compensation Act (“KWCA”), and on September 3, 2014, he filed a workers compensation claim. Defendant denied that the claim was compensable because it claims that plaintiff willfully and/or recklessly violated the MAD safety rule by failing to wear rubber gloves and sleeves within five feet of an energized source.

         II. Legal Standards

         a. Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         The party moving for summary judgment has the burden to show “the lack of a genuine issue of material fact.” Ascend Media Prof'l Servs., LLC v. Eaton Hall Corp., 531 F.Supp.2d 1288, 1295 (D. Kan. 2008) (citing Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986))). Once the moving party meets this initial burden, the burden then shifts to the nonmovant to “set forth specific facts showing that there is a genuine issue for trial.” Id. (citing Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986))).

         The nonmovant may not rest on his pleadings or “rely on ignorance of the facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259 (1986)); Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Instead, the nonmovant is required to set forth specific facts, by referencing affidavits, deposition transcripts, or exhibits, from which a rational trier of fact could find for him. Fed R. Civ. P. 56(c)(1); see also Ascend Media, 531 F.Supp.2d at 1295 (citing Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000)). Summary judgment is not a “disfavored procedural shortcut”-it is an “integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp., 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).

         b. Retaliation Claim

         Kansas is an at-will employment state, meaning “that in the absence of a contract, express or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party.” Johnston v. Farmers All. Mut. Ins. Co., 545 P.2d 312, 315 (Kan. 1976). But Kansas case law recognizes exceptions to the at-will employment doctrine “when an employee is fired in contravention of a recognized state public policy.” Campbell v. Husky Hogs, L.L.C., 255 P.3d 1, 4 (Kan. 2011). These exceptions are: “(1) filing a claim under the Kansas Workers Compensation Act, K.S.A. 44-501 et seq; (2) whistleblowing; (3) filing a claim under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 (2006) et seq; and (4) exercising a public employee's First Amendment right to free speech on an issue of public concern.” Id. (citing Anco Constr. Co. v. Freeman, ...

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