Petition for Writ of Certiorari — Masters v. Daniel International Corp.

Supreme Court brief1990

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YQSEPH F. SPANIOL/ER,

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

RONALD MASTERS,

Petitioner,

Vv.

DANIEL INTERNATIONAL CORPORATION, et al.

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Tenth Circuit

Dan L. Wulz #9952

BRYAN, LYKINS, HEJTMANEK

& WULZ, P.A.

222 West 7th Street

P.O. Box 797

Topeka, KS 66601

(913) 235-5678

Attorney for Petitioner

(i)

QUESTIONS PRESENTED FOR REVIEW

Whether a nuclear civil Quality Control

inspector’s state common law claim for

retaliatory discharge from employment is

preempted by §210 of the Energy

Reorganization Act.+

1 This was the issue presented to and stated by the Tenth Circuit in its

opinion. However, the last sentence of the opinion is not limited to a

state law claim for retaliatory discharge but rather “any state law claim

for wrongful termination.” If this is not mere dicta, and to the extent the

opinion purports to decide issues not presented, e.g. whether a state

common law claim for fraud, or wrongful interference with contract, etc.,

is preempted, then petitioner has been denied the opportunity to be

heard on those issues, violating due process requirements under the

Fifth Amendment (U.S. Const. Bill of Rights, art. 5). Had petitioner

been given the opportunity to be heard on those issues, he would have

and does hereby raise three additional issues: (1) Whether such decision

would violate Article III separation of powers. (2) Whether such

decision woud violate petitioner’s Seventh Amendment (U.S. Const. Bill

of Rights, art. 7) and state (Kan. Const. Bill of Rights, 85) right to trial

by jury where Congress creates an administrative remedy with no right

to jury trial, and then that administrative remedy is judicially determined

to preempt all state common law claims to which the right to jury trial

attaches. (3) Whether such decision would violate state (Kun. Const. Bill

of Rights, 818) and federal (U.S. Const. Bill of Rights, art. 5) due

process requiring a guid pro quo when a common law remedy is

replaced with a legislatively created administrative remedy.

(ii)

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW........

TABLE OF AUTHORITIES... eee eeeceees

REPORT OF OPINIONS........+..- a

JURISDICTION... . ccc cccccees Treet us f

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED...... cc ccs eccvcvees

STATEMENT OF THE CASE.....eeeeecccces

REASONS WHY CERTIORARI SHOULD BE

I. A NUCLEAR CIVIL QUALITY CONTROL

INSPECTOR’S STATE COMMON LAW

CLAIM FOR RETALIATORY DISCHARGE

IS NOT PREEMPTED BY §210 OF THE

ENERGY REORGANIZATION ACT.......

A. This Court Recently Granted

Certiorari In English v.

General Electric Concerning

Preemption Of State Law

Claims By §210 Of The Energy

Reorganization Act; There Is

A Conflict Among The Courts

On This Question... .scscseses

B. The Decision Below Conflicts

With Applicable Decisions Of

This COURG. .ccssiteesuabeees

(iii)

TABLE OF CONTENTS - Continued

Page

II. IF THE DECISION BELOW DECIDES

PREEMPTION OF ANY STATE LAW

CLAIM, THEN PETITIONER HAS BEEN

DENIED DUE PROCESS OF LAW IN

THAT HE HAS BEEN DENIED THE

OPPORTUNITY TO BE HEARD ON THAT

ISSUE, AND SUCH DECISION VIO-

LATES FEDERAL AND STATE CONSTI-

TUTIONAL RIGHTS IN THE FOLLOWING

THREE WAYS... csccccccccccccccccs 28

A. Such A Decision Would Vio-

late Article III Separation

Se Mc escent ce cencceetenes 30

B. Such A Decision Would Vio-

late Federal And State

Guarantees Of The Right To

|, rere 33

cs Such A Decision Would Vio-

late Federal And State Due

hh sak ¢ a 6s 66s 66% <4e es 6 6 35

~~~——~~~Ee ChE eo ec ee eke seeceeaneses 38

DECC S SESS ASO CCC ORK eee wee eeeus App. 1

(iv)

TABLE OF AUTHORITIES

Askew v. American Waterways

Operators, 411 U.S. 325, 36

L.Bd.2d 280, 93 $.Ct. 15990

Co I te gE Cie ae, ak ae

California Coastal Commission v.

Granite Rock Co., 480 U.S.

572, 94 L.Ed.2d 577, 107 S.Ct.

eC RE ee

Chrisman v. Philips Indus.,

Inc., 242 Kan. 772, 751 P.2d

eG RE ie Rare

Crowell v. Benson, 285 U.S. eae

51-65, 52 S.Ct. 285, 76 L.Ed.

ee OI oe ee

Duke Power Co. v. Carolina

Environmental Study Group,

Inc., 438 U.S. 59, 98 S.Ct.

2620, 57 L.Ed.2d 595 (1978)....

English v. General Electric Co.,

683 F.Supp. 1006 (E.D. N.C.

1988), 871 F.2d 22 (4th Cir.

1989), cert. granted, 110

S.Ct. 862, 107 L.Ed.2d 946.....

Farmer v. United Brotherhood of

Carpenters and Joiners, 430

U.S. 290, 51 L.Ed.2d 338, 97

SCE. 1056 (IST7) 0 cccccaccccces

Gaballah v. P.G.&E., 711 F.Supp.

ee ae a error

Garg v. Narron, 170 F.Supp. 1116

So a ea eee

Page

senee 19

(v)

TABLE OF AUTHORITIES - Continued

Page

Garibaldi v. Lucky Food Stores,

Inc., 726 F.2d 1367 (9th Cir.

1984), cert. den.., 471 U.S.

1099, 105 §S$.Ct. 2319, 85

LB. 2G SBD (IGSS).ccccsccescsvccces 26

Garner v. Teamsters, C. & H.

Union, 346 U.S. 485, 98 L.Ed.

S20, 44 S.CE. IGR CISSS) oc cccsececas 27

International Union, U. A., A. &

A. I. W. v. Russell, 356 U.S.

634, 2 L.Ed.2d 1030, .78 S.Ct.

SOR CIPOS) 46 0666 0e i 500656084 6K Kee OK 25,27

Lingle v. Norge Division of

Magic Chef, 486 U.S. 399, 100

L.Ed.2d 410, 108 S.Ct. 1877

(1988)..... TETCETTTE CELT LETT ee 26

Linn v. United Plant Guard

Workers, 383 U.S. 53, 15

86.24 3582, 86 $.¢Ct. $87

Oh PPT errer Tere Te Te Te Te Te TT ETE 25

Masters v. Daniel International

Corporation, 895 F.2d 1295

CLGER CAPs AGS} cco ccs cceewineeccescs 2

Michigan Canners and Freezer

Assoc., Inc. v. Agricultural

Mktg. & Bargaining Bd., 467

U.S. 461, 81 L.Ed.2d 399, 104

S.CE. ZBLB CASSE) oc cccccccccseceseces 27

Nader v. Allegheny Airlines, 426

U.S. 290, 48 L.Ed.2d 643, 96

S.GS. THE CATS) occ cccccrcsscessecs 24

NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. i, §1 L.8d.

S93, S7 S.CE. GIS CASST) oc ccncscsess 35

4 re i e, =

> & %.

(vi)

TABLE OF AUTHORITIES - Continued

Page

Norris v. Lumberman’s Mut. Cas.

Co., 881 F.2d 1144 (lst Cir.

1989).... ee eeee#ee#ee#ee#ee#eee#ee#ee##e##e####e#e#e# #® # # @# @ @ 19

Northern Pipeline Construction

Co. v. Marathon Pipe Line Co.,

458 U.S. 50, 73 L.Ed.2d 598,

TGS S.CE. SBSS (19B2Z). cnc cccccscess 30

Pacific Gas & Electric v. State

Energy Resources Conservation

& Development Comm’n, 461 U.S.

190, 75 L.Ed.2d 752, 103 S.Ct.

EPED CEPO Pe ce cca ccecwrensececseceses 20

Palmer v. Brown, 242 Kan. 893,

, Be ~ Bel | eae rerre ree ee 16,22

Peabody Galion v. Dollar, 666

Pome LOG CIOCH Cir. TSE). wcceceess 26

Samsel v. Wheeler Transport

Services, Inc., --- Kan. ---,

--- P.2d ---, 1989 WL 200337........ 36

Silkwood v. Kerr-McGee Corp.,

464 U.S. 238, 78 L.Ed.2d 443,

104 S.Ct. 615 (1984)...... 20,21,23,25,27

Snow v. Bechtel Const., Inc.,

647 F.Supp 1514 (C.D. Cal.

a6 66-0% 6 c'e.We COE) NCSC SEER Oe ee es 19

United Construction Workers v.

Laburnum Constr. Corp., 347

U.S. 656, 98 L.Ed.2d 1025, 74

BuGSe BES CAPSS cccacessaceccaniccecs 25

ao Omt Emin mPtte ee AAR

(vii)

TABLE OF AUTHORITIES - Continued

Page

United States v. Jepson, 90

F.Supp. 983, 986 (D.N.J.

L9SS) wcvcccccecceses eoeeee#ee#sekees#e#*e ee 4 F&F & 35

Wheeler v. Caterpillar Tractor

Co., 108 I11.2d 502, 92

I1l1.Dec. 561, 485 N.E.2d 372

(1985), cert. den., 475 U.S.

1122, 106 S.Ct. 1641 (1986)......... 19

CONSTITUTIONAL PROVISIONS

U.$. Conet., AFGIGIO III. wcace eeee 8s Antes

U.S. Const. Bill of Rights, art. 5..... i

U.S. Const. Bill of Rights, art.7...i,8,33

Kan. Const. Bill of Rights, §5...... i Pe

Kan. Const. Bill of Rights, §18........ i,9

FEDERAL STATUTES

Section 210 of the Energy

Reorganization Act, 42 U.S.C.

i) > | PPPPECerCeRCEECTEREPEEELE TTT passim

SS DiS.C. BISSECL ps cccvcvccessassseses 2

BS BoB sGe GAS ec cca vasinvvesescssesvess 13

Atomic Energy Act, 42 U.S.C.A.

> fe rer eerrr Terre rere Te ee eee eee Tee 3,22

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

RONALD MASTERS,

Petitioner,

Vv.

DANIEL INTERNATIONAL CORPORATION, et al.

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Tenth Circuit

REPORT OF OPINIONS

The decision below is reported at Mas-

ters v. Daniel International Corporation,

895 F.2d 1295 (10th Cir. 1990).

JURISDICTION

The opinion of the Court of Appeals was

entered on February 6, 1990. This court

has jurisdiction pursuant to 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 210 of the Energy Reorganiza-

tion Act:

"42 U.S.C. §5851. Employee Protection.

“(a) Discrimination against employee

"No employer, including a Commis-

Sion licensee, an applicant for a

Commission license, or a contractor

Or a subcontractor of a Commission

licensee or applicant, may discharge

any employee or otherwise discrimi-

nate against any employee with re-

spect to his compensation, terms,

conditions, or privileges of employ-

ment because the employee (or any

person acting pursuant to a request

of the employee) ---

SN Ae

"(1) commenced, caused to be

commenced, or is about to commence

Or cause to be commenced a pro-

ceeding under this chapter or the

Atomic Energy Act of 1954, as

amended (42 U.S.C.A. §2011 et

seq.], Or a proceeding for the

administration or enforcement of

any requirement imposed under this

chapter or the Atomic Energy Act

of 1954, as amended;

"(2) testified or is about to

testify in any such proceeding or;

"(3) assisted or participated

Or is about to assist or partici-

pate in any manner in such a

proceeding or in any other manner

in such a proceeding or in any

other action to carry out the

purposes of this chapter or the

Atomic Energy Act of 1954, as

amended {42 U.S.C.A. §2011 et

seq.].

"(b) Complaint, filing and notifica-

tion

"(1) Any employee who believes

that he has been discharged or other-

wise discriminated against by any

person in violation of subsection (a)

of this section may, within thirty

days after such violation occurs,

file (or have any person file on his

behalf) a complaint with the Secre-

tary of Labor (hereinafter in this

subsection referred to as the “Secre-

tary") alleging such discharge or

discrimination. Upon receipt of such

a complaint, the Secretary shall

notify the person named in the com-

plaint of the filing of the complaint

and the Commission.

"(2)(A) Upon receipt of a com-

plaint filed under paragraph (1), the

Secretary shall conduct an investiga-

tion of the violation alleged in the

complaint. Within thirty days of the

receipt of such complaint, the Secre-

tary shall complete such investiga-

tion and shall notify in writing the

complainant (and any person acting in

his behalf) and the person alleged to

have committed such violation of the

results of the investigation conduct-

ed pursuant to this subparagraph.

Within ninety days of the receipt of

such complaint the Secretary shall,

unless the proceeding on the com-

plaint is terminated by the Secretary

on the basis of a settlement entered

into by the Secretary and the person

alleged to have committed such viola-

tion, issue an order either providing

the relief prescribed by subparagraph

(B) or denying the complaint. An

order of the Secretary shall be made

on the record after notice and oppor-

tunity for public hearing. The Secre-

tary may not enter into a settlement

terminating a proceeding on a com-

plaint without the participation and

consent of the complainant.

"(B) If, in response to a com-

plaint filed under paragraph (1), the

Secretary determines that a violation

of subsection (a) of this section has

occurred, the Secretary shall order

the person who committed such viola-

tion to (i) take affirmative action

to abate the violation, and (ii)

reinstate the complainant to his

former position together with the

compensat*on (including back pay),

terms, conditions, and privileges of

his employment, and the Secretary may

order such person to provide compen-

satory damages to the complainant. If

an order is issued under this para-

graph, the Secretary, at the request

of the complainant shall assess

against the person against whom the

order is issued a sum equal to the

aggregate amount of all costs and

expenses (including attorneys’ and

expert witness fees) reasonably

incurred, as determined by the Secre-

tary, by the complainant for, or in

connection with, the bringing of the

complaint upon which the order was

issued.

"(c) Review

“(1) Any person adversely affected

or aggrieved by an order issued under

subsection (b) of this section may

obtain review of the order in the

United States court of appeals for

the circuit in which the violation,

with respect to which the order was

issued, allegedly occurred. The

petition for review must be filed

within sixty days from the issuance

of the Secretary’s order. Review

shall conform to chapter 7 of Title

5. The commencement of proceedings

under this subparagraph shall not,

unless orcered by the court, operate

as a stay of the Secretary’s order.

"(2) An order of the Secretary

with respect to which review could

have been obtained under paragraph

(1) shall not be subject to judicial

review in any criminal or other civil

proceeding.

“(d) Jurisdiction

“Whenever a person has failed to

comply with an order issued under

subsection (b)(2) of this section,

the Secretary may file a civil action

in the United States district court

for the district in which the viola-

tion was found to occur to enforce

such order. In actions brought under

this subsection, the district courts

shall have jurisdiction to grant all

appropriate relief including, but not

limited to, injunctive relief, com-

pensatory, and exemplary damages.

"“(e) Commencement of action

"“(1) Any person on whose behalf an

order was issued under paragraph (2)

of subsection (b) of this section may

commence a civil action against the

person to whom such order was issued

to require compliance with such

order. The appropriate United States

district court shall have jurisdic-

tion, without regard to the amount in

controversy or the citizenship of the

parties, to enforce such order.

"(2) The court, in issuing any

final order under this subsection,

may award costs of litigation (in-

cluding reasonable attorney and

expert witness fees) to any party

whenever the court determines such

award is appropriate.

"“(£) Enforcement

“Any nondiscretionary duty imposed

by this section shall be enforceable

in a mandamus proceeding brought

under section 1361 of Title 28.

“(g) Deliberate violations

"Subsection (a) of this section

shall not apply with respect to any

employee who, acting without direc-

tion from his or her employer (or the

employer’s agent), deliberately

causes a violation of any requirement

of this chapter or of the Atomic

Energy Act of 1954, as amended [42

U.S.C.A. §2011 et seq.]."

As noted in footnote 1. to the Question

Presented, if the decision below decides

preemption of “any state law claim," then

petitioner has been denied the opportunity

to be heard on tuat issue, violating his

right to due process of law under U.S.

Const., Bill of Rights, art. 5, which

provides in pertinent part:

"No person shall be ... deprived

of ... property without due

process of law;"

Had the question of whether 42 U.S.C.

§5851 preempts “any state law claim" been

raised, then petitioner would have and

does hereby raise the issue of whether

such decision would violate@ separation of

powers principles inherent in U. S.

Const., Article III, which provides:

"The judicial power of the

United States, shall be vested

in one supreme court, and in

such inferior courts as the

Congress may from time to time

ordain and establish. The

judges, both of the supreme and

inferior courts, shall hold

their offices during good behav-

ior, and shall, at stated times,

receive for their services, a

compensation which shall not be

diminished during their continu-

ance in office."

Further, whether such a decision would

infringe his right to trial by jury under

U. S. Const., Bill of Rights, art. 7,

which provides in pertinent part:

“In suits at common law, where

the value in controversy shall

exceed twenty dollars, the right

of trial by jury shall be pre-

served, .”

and his right to trial by jury in §5 of

the Bill of Rights to the Constitution of

the State of Kansas, which provides: “The

right of trial by jury shall be

inviolate."

Finally, petitioner raises the issue of

whether his state and federal right to due

i ele Bs CoO OI nah Heine

process requires a quid pro quo when a

common law remedy is replaced with a

legislatively enacted administrative

remedy. Federal due process arises under

the 5th Amendment quoted hereinabove.

State due process arises under §18 of the

Bill of Rights of the Constitution of the

State of Kansas, which provides:

"All persons, for injuries

suffered in person, reputation

Or property, shall have remedy

by due course of law, and jus-

tice administered without

delay."

STATEMENT OF THE CASE

Ron Masters was employed by Daniel

International Corporation (DIC) as a civil

quality saeaes inspector on December 20,

1980, in Tennessee. He received excellent

reviews and was selected for transfer to

the Wolf Creek Nuclear Power Station in

Kansas which was uncer construction by

DIC. Masters alleged his employment was

terminated August 22, 1984, in retaliation

for having reported to the Nuclear Regula-

tory Commission (NRC) the failure of his

employer, DIC, to inspect structural steel

welds and his employer’s falsification of

structural steel blueprints during the

construction of Wolf Creek.

Masters’ Complaint alleged that in

February, 1984, he was instructed to

inspect and “close out" structural steel

welds in the fuel building at the Wolf

Creek Nuclear Generating Station. (Com-

plaint, paragraph 6). During the inspec-

tion process, Masters discovered many of

the welds had been embedded in concrete

and there was no documentation that the

welds had been inspected. (Complaint

paragraphs 7 and 9). The procedure for

certifying a weld inspection would be to

mark on the structural steel blueprint and

initial that the inspection had been done.

Pate a Naat A TAS lt aT igh Mi arn Bink BN ate id Bot Wea te tow in

rn a LAS pariah.

(Complaint paragraph 8). When plaintiff's

supervisors learned that the welds had not

been inspected, they took the structural

steel blueprints from plaintiff and marked

and initialed them as if the welds had

been originally inspected. (Complaint

paragraph 10). m

On. February 2, 1984, Masters, in

conformity with his duty as an inspector

under Federal law’, informed the Nuclear

Regulatory Commission’s site representa-

tive of DIC’s activities. (Complaint

paragraph 11). Thereafter, DIC engaged in

a campaign of harassment and intimidation

of Masters until his employment was termi-

nated on August 22, 1984, in retaliation

2 See 10 C.F.R. Part 50.

for his report to the NRC. (Complaint

paragraph nos. 12 in Count I and Count

II).

The NRC did investigate Masters’ con-

cerns and eventually in a written report

dated October 7, 1985, the NRC concluded:

“It is OI’s (Office of Investi-

gations) conclusion that Q.C.

(Quality Control) inspection

drawings were intentionally

falsified."

(Supplement to Motion to Alter

or Amend, Doc. #49, 5/15/87,

attachment, page 2).

Masters also reported DIC’s campaign of

intimidation and harassment against him.

The NRC also investigated this allegation,

and in the same written report dated

October 7, 1985, concluded:

"DIC supervisors, EPPERLY and

MURPHY, did intentionally harass

and discriminate against MAS-

TERS....

{Id., attachment at p. 22 (page

19 of the report) ].

Masters did not file a claim with the

Department of Labor within thirty days of

his discharge as required by 42 U.S.C.

§5851, basically because he was unaware

that he needed to do so when DIC told him

he was being laid-off rather than fired.

(Plaintiff’s Fourth Supplement To Motion

To Alter Or Amend, Doc. #53, 6/23/87,

affidavit attached).

Upon termination of his employment at

Wolf Creek, Masters and his family moved

to Illinois. There after a few months

Masters visited with an attorney who,

within one year of Masters’ termination of

employment, on August 22, 1985, filed this

action in the United States District Court

for the District of Illinois, alleging

diversity of citizenship, 28 U.S.C. §1332,

as the basis for jurisdiction. (Complaint

paragraph 1). Three causes of action were

alleged: (1) retaliatory discharge, (2)

tort of outrage (intentional infliction of

emotional distress), and (3) violation of

civil rights. DIC moved to dismiss on the

grounds that, inter alia, all counts were

preempted by 42 U.S.C. §5851. The Illinois

District Court dismissed Count III, civil

rights, for absence of an allegation of

state action, and ordered venue trans-

ferred to Kansas for determination of the

remainder of the motion to dismiss.

On April 24, 1987, the district court

for the District of Kansas, Rogers, J.,

dismissed the remainder of the case for

failure to state a claim upon which relief

could be granted. (Memorandum and Order,

Doc. #44, 4/24/87). The court dismissed

Count I, retaliatory discharge, on the

grounds Kansas law would not recognize a

common law cause of action where there was

another remedy. The court dismissed Count

II, tort of outrage, on the grounds the

conduct alleged did not amount to the tort

of outrage as a matter of law. The dis-

et Sid eh? Dede om ed tt hl as bat Does

ee ee ee ee eee ee ee

trict court entered judgment for DIC on

April 24, 1987.

Within ten days, on May 4, 1987, Mas-

ters filed a Motion To Alter Or Amend The

Judgment. (Motion To Alter Or Amend, Doc.

#46, 5/4/87).

On February 25, 1988, Masters’ motion

was granted in part and denied in part.

(Memorandum and Orcer, Doc. #55, 2/25/88).

The court’s earlier order of dismissal of

4/24/87 was amended to a dismissal without

prejudice, but the court adhered to its

decision that plaintiff did not have a

cause of action for retaliatory discharge

under Kansas law; the district court

refused to certify such question for

determination by the Kansas Supreme Court,

and further held for the first time that

even if plaintiff did have a cause of

action under state law then it was pre-

emoted by federal law, 42 U.S.C. §5851,

notwithstanding the unavailability of

punitive damages and the short thirty (30)

day statute of limitations.

Masters timely appealed to the United

States Court of Appeals for the Tenth

Circuit, raising two issues: (1) whether

42 U.S.C. §5851 preempts his state common

law cause of action for retaliatory dis-

charge, and (2) whether Kansas recognizes

a cause of action for retaliatory dis-

charge.

While the appeal to the Tenth Circuit

was pending, and in fact within one month

of the district court’s decision on the

motion to alter or amend, the Kansas

Supreme Court recognized a common law

cause of action for retaliatory discharge.

See Palmer v. Brown, 242 Kan. 893, 752

P.2d 685 (1988).

On February 6, 1990, the Tenth Circuit

issued its opinion affirming the ruling

that Masters’ state tort claim was pre-

Pontes

empted by the “whistleblower” provision of

the Energy Reorganization Act, 42 U.S.C.

§5851.

REASONS WHY CERTIORARI SHOULD BE GRANTED

I. A NUCLEAR CIVIL QUALITY CONTROL

INSPECTOR’S STATE COMMON LAW CLAIM

FOR RETALIATORY DISCHARGE FROM EM-

PLOYMENT IS NOT PREEMPTED BY §210 OF

THE ENERGY REORGANIZATION ACT.

A. This Court Recently Granted

Certiorari In English v. General

Electric Concerning Preemption Of

State Claims By §210 Of The

Energy Reorganization Act; There

Is A Conflict Among The Courts On

This Question.

This Court grants certiorari when a

federal court of appeals has rendered a

decision in conflict with the decision of

another federal court of appeals on the

same matter. Federal courts of appeal are

divided on the issue of whether §210 of

the Energy Reorganization Act preempts

state law tort claims involving retaliato-

ry or wrongful discharge. ? This Court

recently granted certiorari in English v.

General Electric Co., 871 F.2d 22 (4th

Cir. 1989), cert. granted, 110 S.Ct. 862,

107 L.Ed.2d 946, to resolve this conflict.

The facts in English are similar to the

present case; moreover, the question for

review is the same. This Court must

grant certiorari herein so that Mr.

Masters and the Tenth Circuit have the

benefit of this Court’s decision in Eng-

In English, plaintiff brought a state

law tort claim for intentional infliction

of emotional distress. The claim arose

3 Several jurisdictions have addressed the preemption

issue involved in the present case. Some have found

preemption: English v, General Electric Co., 683 F.Supp.

1006 (E.D. N.C. 1988), aff'd per curiam on basis of the

decision below, 871 F.2d 22 (4th Cir. 1989), cert. granted,

(Continued on following page)

ew) oe Nee ens

from her termination and harassment after

she reported safety violations to the NRC.

The Fourth Circuit Court of Appeals found

her claim was preempted. Certiorari has

been granted. Masters hereby incorporates

the argument and authorities in the

Petition for Certiorari filed by petition-

er and in the Brief For The United States

As Amicus Curiae filed by the Solicitor

General in English.

B. The Decision Below Conflicts With

Applicable Decisions Of This

Court.

This Court has also granted certiorari

in cases when a federal court of appeals

has decided a federal question in a way in

(Continued from previous page)

110 S.Ct. 862, 107 L.Ed.2d 946; Snow v. Bechtel Const,

Inc., 647 F.Supp. 1514 (C.D. Cal. 1986); Chrisman v, Philips

Indus., Inc., 242 Kan. 772, 751 P.2d 140 (1988). Others

have not: Norris v. Lumberman’s Mut. Cas. Co., 881 F.2d

1144 (1st Cir. 1989); Garg v. Narron, 710 F.Supp. 1116

(S.D. Tex. 1989); Gaballah v. P.G.&E., 711 F.Supp. 988

(N.D. Cal. 1989); Whee'er v. Caterpillar Tractor Co., 108

Ill.2d 502, 92 Ill.Dec. 561, 485 N.E.2d 372 (1985), cert, den,

475 U.S. 1122, 106 S.Ct. 1641 (1986).

conflict with applicable decisions of this

Court. The holding of the Tenth Circuit

below is contrary to this Court’s control-

ling decisions. In Silkwood v. Kerr-McGee

Corp., 464 U.S. 238, 78 L.Ed.2d 443, 104

$.Ct. 615 (1984), the Court analyzed the

requirements for preemption in the nuclear

field. The Court cited Pacific Gas &

Electric v. State Energy Resources Conser-

vation & Development Comm’n, 461 U.S. 190,

75 L.Ed.2d 752, 103 $.Ct. 1713 (1983),

saying:

"“Congress...intended that the

Federal Government should regu-

late the radiological safety

aspects involved in the con-

struction and operation of a

nuclear plant.”

Silkwood, 464 U.S. at 249, 104 S.Ct. at

622. Masters’ case does not concern regu-

lation of the radiological safety aspects

of a nuclear plant. To the extent respond-

ent might argue that it could do so in a

collateral way, it certainly concerns

PECT AVATLADIC CODVES

—e_- er

those aspects in a way far more remote

than the state tort remedies for radiation

injuries at issue in Silkwood.

In Silkwood, this Court refused to

recognize Kerr-McGee’s contention that

allowance of state tort claims for puni-

tive damages would have the effect of

punishing and deterring “conduct related

to radiation hazards" and therefore would

be within the “nuclear safety area". Id.

The Court said:

“It may be that the award of

damages based on the state law

of negligence or strict liabili-

ty is regulatory in the sense

that a nuclear plant will be

threatened with damages liabili-

ty if it does not conform to

State standards but that regula-

tory consequence was one con-

gress was quite willing to

accept." (emphasis added).

Id., 464 U.S. at 256.

Silkwood concluded that state tort

claims are not preempted by the Atomic

Energy Act, 42 U.S.C. §2011 et. seg. A

state tort claim for retaliatory discharge

from employment is less intrusive than a

negligence or strict liability claim.

Kansas recognizes the tort of retalia-

tory discharge. Palmer v. Brown, 242 Kan.

893, 752 P.2d 685 (1988). This cause of

action does not necessitate invasion of

the NRC’s authority to regulate safety

matters. In defining the cause of action,

the Kansas Supreme Court said:

"To maintain such action, an

employee has the burden of

proving by clear and convincing

evidence, under the facts of the

case, a reasonably prudent

person would have concluded the

employee’s co-worker or employer

was engaged in activities in

violation of rules, regulations,

or the law pertaining to public

health, safety, and the general

welfare; the employer had knowl-

ecge of the employee’s reporting

of such violation prior to

discharge of the employee; and

the employee was discharged in

retaliation for making the

report."

see

6 etn ln RP OI atic Ti tic RRA NCH Led eat eS

A ah Wt we

Id., 242 Kan. at 900, 752 P.2d

at 690.

Thus, retaliatory discharge cases boil

down to a basic discrimination case where-

in the employee proves a reasonably pru-

dent person would have concluded that the

employer was violating the law, that the

employee reported same, and that the

employee was discharged in retaliation for

doing so. The employer will inevitably

contend the discharge was motivated by

other legitimate reasons, and the employee

will need to show those reasons were

pretextual. If as held in Silkwood Con-

gress did not intend to preempt state tort

remedies for radiation torts, certainly

Congress did not intend to preempt state

tort remedies for employee discharge.

Protecting the residual powers and

sovereignty of the states is the very

essence of federalism, and this Court has

consistently protected state tort law from

federal preemption absent unavoidable

conflict with federal law. Nader yv. Alle-

gheny Airlines, 426 U.S. 290, 48 L.Ed.2d

643, 96 S.Ct. 1978 (1976); Askew v. Ameri-

can Waterways Operators, 411 U.S. 325, 36

L.Ed.2d 280, 93 S.Ct. 1590 (1973).

In cases under the Labor Management

Relations Act (LMRA) or the National Labor

Relations Act (NLRA), the preemption

doctrine has developed by judicial deci-

Sion because of the perceived need for a

national labor relations policy warranting

a broader than usual preemptive reach for

federal law. Although this is neither an

LMRA nor an NLRA case, distinctions de-

veloped in this area can provide a useful

indication of the extreme limits of pre-

emption in an area preempted by Congress.

In this field, as elsewhere, this Court

has consistently preserved against preemp-

tion the right of the states to enforce

;

traditional common law remedies, including

punitive damages, for tortious conduct.

See United Construction Workers v. Labur-

mum Constr. Corp., 347 U.S. 656, 98 L.Ed.

1025, 74 §.Ct. 833 (1954) ($100,000

punitive damages on a state tort claim for

what was also an unfair labor practice).

This preservation of state tort law

applies not only to damage actions for

direct physical harm, as was involved in

Silkwood, but even extends to such other

torts as libel, Linn v. United Plant Guard

Workers, 383 U.S. 53, 15 L.Ed.2d 582, 86

S.Ct. 657 (1966), intentional infliction

of emotional distress, Farmer v. United

Brotherhood of Carpenters and Joiners, 430

U.S. 290, 51 L.Ed.2d 338, 97 S.Ct. 1056

(1977), and tortious interference with

employee’s lawful occupation, Internation-

al Union, U. A., A. & A. I. W. v. Russell,

356 U.S. 634, 2 L.Ed.2d 1030, 78 S.Ct. 932

(1958) (in case subject to NLRA, state

court could award compensatory and puni-

tive damages for tortious conduct which

was also an unfair labor practice and for

which NLRB could award back pay; no con-

flict in state and federal remedies).

See particularly: Lingle v. Norge

Division of Magic Chef, 486 U.S. 399, 100

L.Ed.2d 410, 108 S.Ct. 1877 (1988) (state

tort action for wrongful discharge not

preempted by the NLRA); Peabody Galion v.

Dollar, 666 F.2d 1309 (10th Cir. 1981) (no

preemption under NLRA for retaliatcry

discharge for filing worker’s compensatioi:

claim); Garibaldi v. Lucky Food Stores,

inc., 726 F.2d 1367 (9th Cir. 1984), cert.

den., 471 U.S. 1099, 105 §.Ct. 2319, 85

L.Ed.2d 839 (1985) (no preemption under

LMRA for retaliatory discharge for

whistleblowing).

Section 210 does not, of course,

contain an express preemption provision.

The statute itself repeatedly uses the

oe ee es

permissive “may" language. Congress has

not totally occupied the field in the

nuclear industry. Silkwood, supra. Mas-

ters’ tort claim against his former em-

ployer is fully consistent with §210, does

not pose an irreconcilable conflict with

§210, and does not tend to frustrate the

objectives of §210. International Union,

U. A.z A. & A. 1. We. v. Russell, supra.;

Rock Co., 480 U.S. 572, 94 L.Ed.2d 577,

107 S.Ct. 1419 (1987). It is not impossi-

ble to comply with both federal and state

law. Garner v. Teamsters, C. & H. Union,

346 U.S. 485, 98 L.Ed. 228, 74 S.Ct. 161

(1953). The state tort law on which Mas-

ters bases his claim does not stand as an

cbstacle to the accomplishment and execu-

tion of the full purposes and objectives

of Congress in §210. Michigan Canners and

Freezer Assoc., Inc. v. Agricultural Mktg.

& Bargaining Bd., 467 U.S. 461, 81 L.Ed.2d

399, 104 S.Ct. 2518 (1984). Indeed, ex-

press congressional disapproval of employ-

er practices in §210 is consistent with an

increased insistence upon state tort

liability, and is inconsistent with per-

mitting the employer to use §210 as a

complete shield against liability herein.

Preemption twists the “employee protec-

tion" provisions of §210 into employer

protection.

II. IF THE DECISION BELOW DECIDES PREEMP-

TION OF ANY STATE LAW CLAIM, THEN

PETITIONER HAS BEEN DENIED DUE PROC-

ESS OF LAW IN THAT HE HAS BEEN DENIED

THE OPPORTUNITY TO BE HEARD ON THAT

ISSUE, AND SUCH DECISION WOULD VIO-

LATE FEDERAL AND STATE CONSTITUTIONAL

RIGHTS IN THE FOLLOWING THREE WAYS.

As indicated in the footnote to the

Question Presented, the issue presented to

the Tenth Circuit was: “Is a nuclear civil

quality control inspector’s state common

law claim for retaliatory discharge

against his employer preempted by 42

U.S.C. §5851?" (See Brief of Appellant,

emphasis added). In its Opinion, the Tenth

Circuit stated the issue: "Whether a state

law claim for retaliatory discharge) in

response to an employee making safety

related complaints to the Nuclear Regula-

tory Commission is preempted by 42 U.S.C.

§5851 is a matter of first impression in

this circuit." (Opinion at p. 2, emphasis

added). Yet, at the end of its Opinion,

the Tenth Circuit said “...the Court

concludes that Section 210 of the Energy

Reorganization Act, 42 U.S.C. §5851 pre-

emots any state law claim for wrongful

termination for reporting safety viola-

tions under the Act." (Opinion at p. 4,

emphasis added). If this is not mere

dicta, and if the opinion below purports

to decide issues not presented, then

Masters was never given the opportunity to

be heard on whether §210 preempts any

state law claim, * denying him due process

of law. Had that question been raised,

then Masters would have and does hereby

raise the following issues.

A. Such A Decision Would Violate

Article III Separation Of Powers.

This is not a case in which the Govern-

ment is involved in its sovereign capacity

under a statute creating new “public

rights," which may be assigned to an

administrative agency without violating

the constitutional mandate of separation

of powers in Article III. In Northern

Pipeline Construction Co. v. Marathon

4 This is important because Masters has another case

pending (D.C. Case No. 87-1290-C) in the United States

District Court for the District of Kansas against DIC and

Kansas Gas & Electric Company arising out of the termi-

nation of his employment alleging causes of action based

upon the Racketeer Influenced Corrupt Organizations Act,

and other state common law torts of fraud, conspiracy,

and interference with contract. (See Complaint attached to

(Continued on following page)

Pion Lise Ca,, 458 U.S. S68, 7%

L.Ed.2d 598, 102 S.Ct. 2858 (1982), this

Court’s lead opinion recognized “three

narrow situations” where “the grant of

power to the Legislative and Executive

Branches was historically and constitu-

tionally so exceptional that the congres-

sional assertion of power to create legis-

lative courts was consistent with, rather

than threatening to, the constitutional

mandate of separation of powers." Id., 458

(Continued from previous page)

Fifth Supplement To Motion To Alter Or Amend, Doc.

#54, 9/16/87, later amended to add interference with

contract). Since the instant case was dismissed without

prejudice for failure to state ~ claim (see Memorandum

and Order, Doc. #55, Rogers, J., 2/25/88 at p. 13), Masters

was free to and did amend and/or refile this case plead-

ing other causes of action in Case No. 87-1290-C. Howev-

er, petitioner and respondent have been proceeding herein

under the assumption that under principles of res judica-

la, the instant case doe» finally determine whether Mas-

ters’ state common law action for retaliatory discharge

against DIC is preempted.

U.S. at 64. Two of those exceptions,

“territorial courts” (Id., 458 U.S. at

64-65) and “the power to establish and

administer courts-martial” (Id., 464 U.S.

at 66) are not even arguably applicable

here. The third encompasses legislative

courts and administrative agencies created

by Congress to adjudicate cases involving

“public rights." This “public rights”

“doctrine extends only to mat-

ters arising ‘between the Gov-

ernment and persons subject to

its authority in connection with

the performance of the constitu-

tional functions of the execu-

tive or legislative department, ’

Crowell v. Benson, 285 U.S. 22,

50 (1932), and only to matters

that historically could have

been determined exclusively by

those departments, see Ex parte

Bakelite Supra, [279

U.S.] at 458.”

id., 458 U.S. at 67.

This suit seeking private damages for a

common law tort is a wholly private tort

case. Congress cannot create an adminis-

trative remedy which a court can constitu-

tionally hold to be exclusive and preemp-

tive of all state common law tort reme-

dies, without running afoul of Article III

principles protecting the role of the

independent federal judiciary within the

constitutional scheme of tripartite gov-

ernment.

B. Such A Decision Would Violate

Federal Ani State Constitutional

Guarantees Of The Right To Trial

By Jury.

Ead the question of preemption of any

state law claim been raised, then Masters

would have and does hereby raise the issue

of whether his Seventh Amendment (U.S.

Const. Bill of Rights, art. 7) and state

(Kan. Const. Bill of Rights, §5) right to

trial by jury is violated.

Where Congress creates an administra-

tive remedy with no right to jury trial,

and then such administrative remedy is

judicially determined to preempt all state

common law claims to which the constitu-

tional right to jury trial attaches, then

that right is infringed. See Crowell v.

Benson, 285 U.S. 22, 51-65, 52 S.Ct. 285,

76 L.Ed. 598 (1932), where the Court said:

"On the common law side of the federal

courts, the aid of juries is not only

deemed appropriate but is required by the

Constitution itself." Id., 285 U.S. at

51. Crowell indicates that in cases in-

volving only “private rights," the Court

will accept fact-finding by an administra-

tive agency, without a jury, only as an

adjunct to an Article III court.”> When a

federal statute embraces a common law

form of action

> 42 U.S.C. 65851 nowhere provides for an appeal to or

review in a district court where a jury trial might be

allowed. The only sort of intervention by a court at any

stage of the proceedings is provided in subsection (c),

providing for review in the Court of Appeals, and in

subsection (e), allowing suit in district court solely for

enforcement of the Secretary’s order.

“that action does not lose its

identity merely because it finds

itself enmeshed in a statute.

The right of trial by jury in

action for debt still prevails

whatever modern name may be

applied to the action. To hold

otherwise would be to open the

United States v. Jepson, 90 F.Supp. 983,

986 (D.N.J. 1950) (emphasis added). Cf.

NLRB v. Jones & Laughlin Steel Corp., 301

U.S. 1, 81 L.Ed. 893, 57 S.Ct. 615 (1937)

(Seventh Amendment not applicable to suit

deciding commission of unfair labor

practice because it was a statutory

proceeding unknown to the common law).

C. Such A JVecision Would Violate

Federal And State Constitutional

Guarantees Of Due Process Because

§210 Does Not Provide A Fair Quid

Pro Quo.

Had the question of preemption of any

state law claim been raised, then Masters

would have and does hereby raise the issue

of whether his state and federal right to

due process requires a fair quid pro quo

when a common law remedy is replaced with

a legislatively enacted administrative

remedy---a question left unanswered by

Duke Power Co. v. Carolina Environmental

Study Group, Inc., 438 U.S. 59, 98 S.Ct.

2620, 57 L.Ed.2d 595 (1978).

Where Congress creates an administra-

tive remedy which is judicially determined

to preempt all state common law claims to

which the constitutional right to due

process attaches, then that right is

infringed unless a fair quid pro quo is

allowed. Constitutional due process in

Kansas requires a quid pro quo. Samsel v.

Wheeler Transport Services, Inc., --- Kan.

---, --- P.2d ---, 1989 WL 200337. As

concerns federal due process, that ques-

tion was left unanswered in Duke Power

Co., supra.

Pe suet

Here, if all state common law torts are

held to be preempted by §210, then Masters

has lost: his constitutional right to

trial by jury, the right to claim punitive

damages, and most importantly the practi-

cal right to any remedy at all because of

the unfairly short 30-day statute of

limitations in §210. In exchange for these

losses, the only quid pro quo offered by a

§210 administrative procedure and not

available in court in this case is

attorneys’ and expert witness fees. And of

course this is quite a hollow exchange

when claims are barred by the 30-day

period of limitation in §210. Actually,

§210 operates as a trap for the unwary, as

a black hole sucking in and destroying

legitimate employee claims by virtue of

its 30-day period of limitation. This is

hardly a fair cuid pro quo.

CONCLUSION

For the reasons’ stated, Petitioner

respectfully requests that the Court grant

this Petition and issue its writ of certi-

orari to the United States Court of Ap-

peals for the Tenth Circuit to review the

opinion of that court in Petitioner’s

case.

Respe ully submitted,

DAN L. WULZ #9952

BRYAN, LYKINS, HEJTMANEK

& WULZ, P.A.

222 West 7th Street

P.O. Box 797

Topeka, KS 66601

(913) 235-5678

Counsel for Petitioner

APPENDIX

TABLE OF CONTENTS

Masters v. Daniel International

Corporation, 895 F.2d 1295

CTOEM CAF. THOS) cc ccccccsssecs

Masters v. Daniel International

Corporation, Case No.86-4268-R

(D.Kan., Memorandum and Order,

Rogers, J., 2/25/88, unpub-

SABRE) ov oc resese Teer TeTT TT Te

Masters v. Daniel International

Corporation, Case No.86-4268-R

(D.Kan., Memorandum and Order,

Rogers, J., 4/24/87, unpub-

SE 606 646 6E Kaa RED OD RRO ROSS

App.

App. 1

(Filed 2/6/90)

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RONALD MASTERS, )

i )

Plaintiff-Appellant, )

)

vs. ) No. 88-1345

) (D.C. No.

DANIEL INTERNATIONAL CORP., ) 86-4258-R)

)

Defendant-Appellee. )

JUDGMENT

Entered February 6, 1990

Before MCKAY and TACHA, Circuit Judges,

and RUSSELL, District Judge.*

*Honorable David L. Russell, United states

District Judge for the Northern, Eastern

and Western Districts of Oklahoma, sitting

by designation.

This cause came on to be heard on the

record on appeal from the United States

District Court for the District of Kansas,

and was argued by counsel.

App. 2

Upon consideration whereof, it is

ordered that the judgment of that court is

affirmed.

Entered for the Court

ROBERT L. HOECKER, Clerk

By: Patrick Fisher

Chief Deputy Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RONALD MASTERS,

Appellant,

-Vvs- No. 88-1345

DANIEL INTERNATIONAL

CORPORATION,

eee eee eee eee ee”

Appellee.

. App. 3

Appeal from the United States District

Court for the District of Kansas

(D.C. 86-4268-R)

Dan L. Wulz, Bryan, Lykins, Hejtmanek &

Wulz, Topeka, Kansas, Attorneys for

Appellant

Leonard J. Spooner of Thompson, Mann and

Hutson, Greenville, SC, Lizabeth Lee

Walther, Thompson, Mann and Hutson,

Washington, D.C., and Arthur E. Palmer of

Goodell, Stratton, Edmonds & Palmer,

Topeka, Kansas, Attorneys for Appellee

Before McKAY and TACHA, Circuit Judges,

and RUSSELL, District Judge.*

*Honorable David L. Russell, United States

District Judge for the Northern, Eastern

and Western Districts of Oklahoma, sitting

by designation.

The appellant Ron Masters brought

this action for retaliatory discharge in

the district court alleging that his

former employer appellee Daniel Interna-

tional Corporation (“Daniel”) terminated

him for having reported safety related

App. 4

concerns to the Nuclear Regulatory Commis-

sion ("NRC").

This appeal is from a decision of

the district court dismissing Masters’

claim on the basis that the claim was

preempted by Section 210 of the Energy

Reorganization Act 42 U.S.C. §5851.

The facts as alleged by Masters are

that on February 2, 1984 he notified the

NRC of his safety related concerns about

work he was doing at the Wolf Creek Nucle-

ar Generating Station in Kansas. Ultimate-

ly the NRC’s investigation vindicated

Masters complaint. In the meantime Masters

was terminated by Daniel allegedly for

being a whistleblower.

Masters did not file a claim with the

Department of Labor within thirty days of

his termination as required by 42 U.S.C.

§5851(b)(1); rather, he later brought this

action for retaliatory discharge.

App. 5

Whether a state law claim for retali-

atory discharge in response to an employee

making safety related complaints to the

Nuclear Regulatory Commission is preempted

by 42 U.S.C. §5851 is a matter of first

impression in this circuit. Other circuits

which have ruled on this issue have

reached differing conclusions.

In English v. General Electric Co.,

871 F.2d 22 (4th Cir. 1989) the Court

found that the Energy Reorganization Act

was intended by Congress to be the exclu-

Sive remedy for employees who allege

discrimination resulting from safety

complaints and that_state law claims were

*thus preempted. In Snow v. Bechtel

Construction, Inc., 647 F.Supp. 1514 (C.D.

of Calif. 1986) that court also concluded

that state law claims were preempted, but

based on the premise that primarily safety

concerns were being addressed by the

App. 6

Energy Reorganization Act and that in

accord with Pacific Gas & Electric Co. v.

State Energy Resources Conservation &

Development Commission, 461 U.S. 190, 212,

103 S.Ct. 1713, 1726, 75 L.Ed.2d 752, 770

(1983), “the Federal Government has occu-

pied the entire field of nuclear safety

concerns, except the limited power ex-

pressly ceded to the states." In Snow the

Court drew a corollary between the “whis-

tleblower” provision of § 5851 and the

Mine Safety and Health Act, 30 U.S.C. §

820, which are quite similar. In Olguin v.

inspiration Consol. Copper Company, 740

F.2d 1468 (9th Cir. 1984) that court found

that the “whistleblower” provision of the

Mine Safety and Health Act was an exclu-

Sive remecy and preempted state action.

Also see Chrisman v. Philips Industries,

Inc., 751 P.2d 140 (Kan. 1988).

_ App. 7 '

To the contrary in Norris v. Lumber-

man’s Mutual Casualty ., 881 F.2d 1144

(lst Cir. 1989) the court concluded that

the Energy Reorganization Act did not

preempt state law claims. In accord with

this position also see Gaballah v. Pacific

Gas and Electric -, 771 F.Supp. 988

(N.D. Cal. 1989); Stokes v. Bechtel North

American Power Corp., 614 F.Supp. 732

(N.D. Cal. 1985); Wheeler v. Caterpillar

Tractor Co., 485 N.E.2d 372 (1985 Ill.).

After review of the cited cases and

the opinion of the District Court the

Court concludes that Section 210 of the

Energy Reorganization Act, 42 U.S.C. §

5851 preempts any state law claim for

wrongful termination for reporting safety

violations under the Act.

The Court therefore AFFIRMS the

district court’s order dismissing the

complaint.

The mandate shall issue forthwith.

ENTERED BY THE COURT PER CURIAM

App. 8

(Filed 2/25/88)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

RONALD MASTERS,

Plaintiff,

vs. Case No. 86-4268-R

DANIEL INTERNATIONAL

CORPORATION,

Defendant.

MEMORANDUM AND ORDER

This matter is presently before the

court upon plaintiff’s motion to alter or

amend the judgment pursuant to

Fed.R.Civ.P. 59. Plaintiff has requested

oral arg:ment but the court deems it

unnecessary. Heving c.refully reviewed the

materials before the court, we are now

prepared to rule.

Plaintiff originally filed this

action in federal court in Illinois. In

his complaint, he alleged that he was

App. 9

discharged by the defendant from his

position as structural weld inspector at

the Wolf Creek Nuclear Power Plant located

near New Strawn, Kansas, in retaliation

for reporting safety hazards at the plant

to the Nuclear Regulatory Commission. The

complaint contained the following causes

of action: (1) a retaliatory discharge

Claim; (2) an intentional infliction of

emotional distress claim; and (3) a civil

rights claim. The federal district judge

in Illinois dismissed plaintiff’s third

cause of action and transferred the case

to this court pursuant to 28 U.S.C.

§1404(a). The defendant had also sought

dismissal of plaintiff’s two claims, but

the Illinois judge held those arguments in

abeyance for a decision by this court.

On April 24, 1987, the court granted

defendant’s motion for dismissal of the

remaining claims. We held that, under

App. 10

Kansas law, plaintiff had failed to state

a claim upon relief could be granted under

either a retaliatory discharge theory or

an intentional infliction of emotional

distress theory. We determined that plain-

tiff could not assert a retaliatory dis-

charge claim because he had a remedy

available to him under Section 210 of the

Energy Reorganization Act, 42 U.S.C.

§5851. In addition, we found that plain-

tiff’s allegations of harassment and

termination from employment were insuffi-

cient to state a claim for intentional

infliction of emotional distress.

Plaintiff filed the instant motion on

May 4, 1987. In this motion, plaintiff

argues that the court should reconsider

its decision on his retaliatory discharge

claim based on facts developed during

discovery. In the alternative, plaintiff

asks that the court certify the question

App. ll

of whether he has stated a retaliatory

aQischarge claim to the Kansas Supreme

Court pursuant to K.S.A. 60-3201 et seq.

Plaintiff followed this motion with a

"supplement" on May 5, 1987. This first

“supplement” suggested that the court’s

judgment in this case violated plaintiff’s

right to a remedy "by due course of law"

as guaranteed by the Kansas Constitution

and the United States Constitution. De-

fendant filed its response to plaintiff’s

motion to alter or amend on May 15, 1987.

On that same date, plaintiff filed another

“supplement” and “motion to vacate, sus-

pend, stay or set aside judgment pending

requested discovery and/or time to file an

amended complaint." In this second supple-

ment, plaintiff asked the court to grant

its previous requests based on new infor-

mation. Plaintiff also requested that, if

we certified the proposed question of law,

we retain jurisdiction over discovery

App. 12

and/or time to file an amended complaint

alleging fraud, conspiracy and/or a claim

under the Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. §1961 et seq.

(RICO). Plaintiff filed yet another

“supplement” on May 20, 1987. In this

third supplement, plaintiff first asxed

the court to specifically rule that the

judgment in this case was not “on the

merits." In addition, plaintiff asked the

court for 45 days within which to file an

amended complaint. Defendant responded

with a motion to dismiss plaintiff’s

pleadings of May 5, 1987. and May 15, 1987

as untimely on June 1, 1987. Undeterred,

plaintiff filed another “supplement” to

his original motion on June 23, 1987. This

fourth “supplement” consisted solely of a

clarification to the affidavit filed by

plaintiff with his original motion to

alter or amend. Finally, plaintiff filed

his last “supplement” on September 16,

App. 13

1987. This fifth supplement indicated that

plaintiff had filed a complaint on Mab 29,

i987 against Daniel International Company,

Kansas Gas and Electric Company, and two

individuals in federal court in Wichita

alleging RICO, fraud and conspiracy

claims.

This background provides a myriad of

issues to decide. The court shall first

address the defendant’s motion to dismiss

plaintiff’s supplements of May 5, 1987 and

May 15, 1987. The court shall also apply

the arguments ma@e therein to the later

Supplements filed by plaintiff. Defendant

sucgests that these supplements are both

untimely and improper. Defendant argues

that the matters raised in plaintiff's

Supplements are “redundant, immaterial and

impertinent" to the earlier issued decided

by the court. Plaintiff, in response,

contencs that the supplements should be

considered by the court because they only

—_

App. 14

present additional arguments and authori-

ties in support of the motion or inform

the court of facts first discovered after

the filing of the motion.

The Federal Rules of Civil Procedure

do not recognize “supplements." Neverthe-

less, this court has in the past consid-

ered such pleadings when they raise only

additional arguments and authorities.

Several of the supplements filed by plain-

tiff come within this rule, and we shall

consider them as part of plaintiff’s Rule

59(e) motion. The court shall consider the

supplements designated as "“first,"“ “sec-

ond" and “fourth” under Rule 59(e). Howev-

er, the “third" supplement is clearly

outside the scope of additional arguments

and authorities. In this supplement,

plaintiff asks the court to find that its

original decision was not on the merits

énd asks the court for 45 days in which to

App. 15

file an amended complaint. This supplement

goes beyond merely stating additional

arguments and authorities and asks for

additional affirmative relief. We shall

view this supplement as a motion for

relief under Fed.R.Civ.P. 60(b). Accord-

ingly, defendant’s motion to dismiss

plaintiff’s supplemental pleadings as

untimely shall be denied.

We shall now address the merits of

the arguments raised by the plaintiff in

the instant motion. Plaintiff first argues

that the court incorrectly concluded that

he did not state a claim for retaliatory

discharge under Kansas law. Plaintiff

contends that the “important and

fundamental public policy involved in

nuclear safety and preservation of lives

and property of Kansas citizens" requires

that he be allowed to proceed with his

retaliatory discharge claim. Plaintiff

relies upon Wheeler v. Caterpillar Tractor

App. 16

GCo., 108 I11.2d 502, 485 N.E.2d 372

(1985), cert. denied, 475 U.S. 1122 (1986)

to bolster this argument. In the

alternative, plaintiff suggests that even

if we continue to adhere to the “no other

available remedy” requirement for the

allowance of retaliatory discharge claim,

then we should require that the available

remedy be adequate. Plaintiff argues that

the available remedy suggested by the

court here, 42 U.S.C. §5851, is inadequate

because of the short period, 30 days, in

which an individual must report the

discriminatory treatment and the absence

of the availability of punitive damages

which would be allowed under Kansas law.

Plaintiff contends that the facts of this

case demonstrate the injustice of the 30-

day limitations because the defendant

misled the plaintiff into believing he was

laid off rather than terminated. Finally,

the plaintiff asks the court to certify

the following question to the Kansas

App. 17

Supreme Court if we do not believe that

Our prior order should be reversed:

In a private employer/

employee relationship not con-

tractually protected by any

collective bargaining agreement,

where an employee is harassed,

intimidated, and discharged for

having reported to the NRC

safety-related deficiencies and

falsification of documents by

his employer in the construction

of the Wolf Creek Nuclear Power

Plant, and such employer conduct

is violative of federal law and

state common law cause of action

for retaliatory discharge, when

federal law provides a remedy to

such an employee but the remedy

may be viewed as inadequate

because of requisites of federal

law (i.e. here, a 30-day statute

of limitations) and because it

does not provide remedies avail-

able under state law (i.e. here,

Dunitive damaces)?

In our order of April 24, 1987, we

thoroughly examined the tort of retaliato-

ry discharge, but we find it necessary to

reiterate several points and examine

several other in light of the arguments

App. 18

made by plaintiff. Kansas generally fol-

lows the employment-at-will doctrine.

Morriss v. Coleman Co., Inc., 241 Kan.

501, 738 P.2d 841, 847 (1987).

Nevertheless, Kansas recognizes a limited

public policy exception to the doctrine--

the tort of wrongful or retaliatory

discharce. This exception was first

created and extended to employees-at-will

in Murphy v. City of Topeka, 6 Kan.App.2d

488, 630 P.2d 186 (1981). Following

Murohy, this court determined in Tarr v.

Riberglass, Inc., No. 83-4234 (D.Kan.,

unpublished, 2/8/84), that an employee in

Kansas must be without any other remedy

under either federal or state law in order

to state a retaliatory discharge clain.

Plaintiff takes issue with the decision in

Tarr and believes the court should

reconsider its ruling.

The court believes that subsequent

decisions by the Kansas Supreme Court add

App. 19

Support to our finding in Tarr. The Kansas

Supreme Court has recognized that the

holding in Murphy was “narrowly drawn" and

applies only to interests protected by

state law. Anco Construction Co. v.

Freeman, 236 Kan. 626, 693 P.2d 1183, 1186

(1985). Moreover, the Court has refused to

extend the retaliatory discharge theory to

an employee covered by a collective

Dargaining agreement. Cox v. Jnited

Technologies, Essex Group, Inc., 240 Kan.

95, 727 P.2d 456 (1986). The key to Cox

was the fact that the contractual

agreement provided the employee with

protective remedies and, thus, a

retaliatory discharge claim was

unnecessary.

In addition, many of the courts

around the country that recognize the tort

of retaliatory discharge have refused to

ailow such a claim where the employees had

, a

F A

App. 20

statutory or administrative remedies

available to them. See, e.g., Pinder v.

Dean, 70 Md.App. 252, 520 A.2d 1119

(1987); Darling v. General Electric, 350

Pa.Super. 183, 504 A.2d 306 (1986); Corbin

v. Sinclair Marketing, Inc., 684 P.2d 265

(Colo.App. 1984); Ohlsen ve. DST

Laboratories, Inc., 111 Mich.App. 580, 314

N.W.2d 699 (1981). These cases contribute

some additional persuasive reasoning to

the result reached in Tarr.

Plaintiff also asserts that the court

should extend Tarr, if we are not inclined

to reverse it, to require that other

available remedies be adequate. With this

requirement, plaintiff argues that the

remedies provided by 42 U.S.C. §5851 are

inadequate because of the absence of

punitive damages and the brief period of

limitations.

We are not prepared to accept

plaintiff’s argument for several reasons.

App. 21

The court continues to believe that the

focus for the purpose of determining

whether to allow a retaliatory discharge

claim should be on the availability of the

remedy, not the adequacy of the remedy. In

any event, even assuming arguendo that we

accepted plaintiff’s adequacy requirement,

we do not believe that the result would be

changed in this case. The remedies

available to a complainant pursuant to 42

U.S.C. §5851 include: (1) reinstatement

with compensation (including back pay);

(2) compensatory dameges; (3) all costs

and expenses (including attorney’s and

witness fees); and (4) if a person fails

to comply with an order issued by the

Secretary of Labor, the district courts

may grant all appropriate relief including

injunctive relief, compensatory and

exemplary damages. 42 U.$.C.

§5851(b)(2)(B) and (d). In this case,

App. 22

plaintiff is seeking: (1) compensatory

damages; (2) punitive damages; and (3)

court costs. We think the remedies provid-

ed by 42 U.S.C. §5851 are sufficient to

have satisfied plaintiff’s claims even

though punitive damages are not allowed.

The remedies provided by 42 U.S.C. §5851

go beyond what plaintiff could receive

based on a retaliatory discharge claim

Since plaintiff could also receive attor-

ney’s fees and reinstatement. This conclu-

Sion is supported by the Kansas Supreme

Court’s reliance in Cox on Phillips v.

Babcock and Wilcox, 349 Pa.Super. 351, 503

A.2d 36 (1986). In Cox, the Kansas court

quoted the following passage from Phil-

lips:

Furthermore, we are not

persuaded by appellant’s argu-

ment that the wrongfully dis-

charged at-will employee had

greater remedies available ina

civil action than does a union

employee under a collective

bargaining agreement since a

civil court could eward punitive

damages. While the at-will

employee may be entitled to

punitive damages in a civil

App. 23

action, he does not have the

ability to obtain some of the

remedies available to union

members; such as reinstatement

to his position, which is a

commonly provided remedy in

labor agreements. Thus, we find

that a difference in remedies is

not enough to justify an exten-

Sion of the coverage of the

wrongful discharge action.

727 P.2d at 459 (quoting from 503 A.2d at

38).

Plaintiff’s contention that the

remedy of 42 U.S.C. §5851 is inadequate

based on length of the limitations period

is puzzling. Plaintiff suggests that a

30-day statute of limitations is inade-

cuate to remecy the important interests at

stake. Plaintiff argues that DelCostello

v. International Board of Teamsters, 462

U.S. 151 (1983) supports this argument.

We wholly disagree with plaintiff’s

argument. Congress, which provided the

remedy set forth in 42 U.S.C. §5851,

believed that 30 days was sufficient, and

App. 24

we do not see how this court can interfere

with a policy decision made by Ccngress.

DelCostello provides no support for plain-

tiff’s contention. In DelCostello, the

Supreme Court was faced with an issue

often faced by federal courts--the statute

of limitations applicable to a federal

cause of action where none has been estab-

lished by Congress. Here, Congress has

established a limitations period, and we

do not have the liberty to establish our

own or find it inadec uate.

Plaintiff also has taken the position

that the limitations period of 42 U.S.C.

§5851 should be tolled because he was

misled by the defendant as to whether he

had been terminated or laid off. This

argument is of no moment here because

§5851 would have protected plaintiff

whether he was laid off or terminated. The

remedies §5851 are available to “any

App. 25

employee who believes that he has been

discharged or otherwise discriminated

against."

In addition, plaintiff raises this

argument in the wrong forum. Plaintiff has

never attempted to seek the remedies

provided by 42 U.S.C. §5851. He could have

sought such relief after the expiration of

the 30-day period and made his tolling

arguments to the Secretary. See, e€.g.,

Rose v. Secretary of Dept. of Labor, 800

F.2c 563 (6th Cir. 1986). Here, plaintiff

has mace absolutely no efforts to pursue

his claim under 42 U.S.C. §5851. Plaintiff

should not be allowed to challenge the

Sufficiency of remedies of §5851 in this

court when he has made no effort to avail

himself of them.

In Cox v. Radiology Consulting Asso-

Ciates, Inc., 658 F.Supp. 264 (W.D.Pa.

1987), the court was faced with the same

App. 26

issue presented here: should plaintiff be

allowed to pursue a state wrongful dis-

charge claim where he had a remedy avail-

able to him under 42 U.S.C. §5851 even

though that remedy may now be foreclosed

for his failure to timely file under

§5851? The Cox court determined that

Pennsylvania would decline to allow a

wrongful discharge claim under these

circumstances. Id., at 266. This decision,

we believe, is very persuasive here due to

the similarities between Kansas law and

Pennsylvania law on tort of wrongful

discharge. See Cox v. United Technologies,

Essex Group, Inc., supra, 727 P.2d at

458-59 (citing and relying on Pennsylvania

case law in the area of wrongful discharge

for authority).

Plaintiff raises one final point.

Relying on Wheeler v. Caterpillar Tractor

Co., 108 I1l1.2d 502, 458 N.E.2d 372

—— —

App. 27

(1985), plaintiff asserts: “The Supreme

Court of Illinois .. . reached a result

contrary to that of this court in holding

that Congress did not intend to preempt

the field of retaliatory discharge under

the Energy Reorganization Act.” As pointed

out by the defendant, plaintiff completely

misunderstands the court’s order of April

24. The court did not reach the issue of

whether 42 U.S.C. §5851 preempted state

Claims for retaliatory discharge, although

we recognized that the defendant had made

Such an argument. The court’s order was

based on the determination that the

presence of an available remedy precludes

the need to expand the judicially created

exception of retaliatory discharge. Thus,

plaintiff’s suggestion that we reached a

result contrary to the Illinois Supreme

Court is totally incorrect. However, since

we have been given another opportunity to

examine this issue, we are now prepared to

App. 28

hold contrary to the Illinois court as an

alternative basis for our earlier deci-

Sion. Based on the persuasive opinions of

Snow v. Bechtel Construction, Inc., 647

F.Supp. 1514 (C.D.Cal. 1986) and the

dissenting judges in Wheeler v. Caterpil-

iar Tractor Co., supra, at 377, we con-

clude that §5851l preempts plaintiff’s

retaliatcry discharge claim.

Plaintiff’s contentions that the

court’s dismissal of his complaint vio-

lates his right to a remecy "by due course

of law" as guaranteed by section 18 of the

bill of rights of the state of Kansas

Constitution, and his right to a jury

trial under the Kansas Constitution aad

the United States Constitution, are clear-

ly without merit. Section 18 of the bill

of rights of the Kansas Constitution has

been interpreted to mean that Kansas

courts shall provide a remedy “for such

App. 29

wrongs that are recognized by the law of

the land." Noel v. Menninger Foundation,

175 Kan. 751, 267 P.2d 934, 943 (1954).

Section 18 does not require courts to

create a cause of action where the laws of

Kansas do not recognize one. Schmeck v.

City of Shawnee, 231 Kan. 588, 647 P.2d

1263, 1267 (1982). In acdition, dismissal

of a complaint for failure to state a

claim does not violate a plaintiff’s

right to a jury trial under either the

Kansas Constitution or th2 United States

Constitution. See Sullivan v. United

States, 788 ¥.2d 813, 816 (lst Cir. 1986).

Plaintiff has asked the court to

certify the question of whether he has

Stated a retaliatory discharge claim to

the Kansas Supreme Court pursuant to

K.S.A. 60-3201. Certification is a discre-

tionary function. This court has in the

past employed considerable restraint

before certifying questions to the Kansas

App. 30

Supreme Court. See, e.g., Valdez v. Kansas

State Department of Social and Rehabilita-

tion Services, No. 76-24-C5 (D.Kan.,

unpublished, 1/29/82). Here, we believe

that certification is inappropriate for

several reasons. First, the request comes

too late in the game. See Lenherr v. NRM

Corp., No. 76-169-C5 (D.Kan., unpublished,

11/19/80); United States v. More, T-5331

(D.Kan., unpublished, 5/16/80). Plaintiff

could have and should have requested

certification long ago if he believed that

this was an appropriate case. Judicial

economy and efficiency would not be served

by certification at this point. Second, we

firmly believe that our conclusion in this

case is correct. We do not wish to over-

burden the Kansas courts with questions

that can be resolved based on their past

cases. Plaintiff has not raised any per-

Suasive ergument that commands a result

App. 31

different than that reached by this court.

Finally, the court’s reliance in this

order on the preemption doctrine precludes

certification. The question of whether 42

U.S.C. §5851 preempts any state claims

made by the plaintiff is a matter of

federal law and would be inappropriate for

Gecision by the Kansas Supreme Court. See

Snow v. Bechtel Corp., supra., at 1517-19.

In sum, after consideration of the inter-

ests of judicial efficiency and economy,

and federal-state comity, the court shall

deny plaintiff’s request for certifica-

tion.

We next turn to plaintiff’s motion to

file an amended complaint. Actually,

plaintiff has requested that he be given

time to file an amended complaint. Howev-

er, has since advised the court that he

filed a complaint identical to his pro-

posed amerded complaint in federal court

in Wichita. Therefore, the court shall

App. 32

construe plaintiff’s motion as one to file

an amended complaint. Plaintiff seeks to

file an amended complaint based on new

information he received following the

dismissal of his other claims.

Following an entry of judgment on the

dismissal of a complaint by a district

court, a plaintiff may amend the complaint

under Fed.R.Civ.P. 15(a) only after the

judgment has been set aside or vacated

pursuant to a motion under Rule 59(e) or

Rule 60(b) and leave of court to amend has

been granted. Cooper v. Shumway, 780 F.2d

27, 29 (10th Cir. 1985). As noted previ-

ously, we shall consider plaintiff’s

motion to file an amended complaint under

Rule 60(b) because the request was made

more than ten days after the entry of

final judgment.

Having carefully reviewed the plain-

tiff’s contentions concerning the proposed

App. 33

amended complaint, we believe that plain-

tiff has stated sufficient grounds to

vacate the court’s earlier order and allow

his amended complaint to be filed. The

amended complaint is based on “newly

discovered evidence” and, thus, relief is

appropriate under Rule 60(b)(2). Ordinari-

ly, would we simply vacate cur prior

judgment and allow the plaintiff to file

an amended complaint. However, plaintiff

has already filed a complaint identical

to the complaint he proposes to file in

this court in federal court in Wichita.

Under these circumstances, we snall amend

our earlier order and dismiss plaintiff’s

complaint without prejudice. This will

allow plaintiff to proceed on the com-

Dlaint he filed in federal court in Wichi-

ta.

IT IS THEREFORE ORDERED that plain-

tiff’s motion to alter or amend is hereby

granted as set forth in this opinion. The

App. 34

court’s order of April 24, 1987 shall be

amended to dismissal without prejudice.

IT IS SO ORDERED.

Dated this 24th day of February, 1988

at Topeka, Kansas.

Richard D. Rogers

United States District Judge

App. 35

(Filed 4/24/87)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

RONALD MASTERS,

Plaintiff,

vs. Case No. 86-4268-R

DANIEL INTERNATIONAL

CORPORATION,

i i

Defendant.

MEMORANDUM AND ORDER

This is a “whistle blower" action

based on diversity jurisdiction. Plaintiff

alleges that he was discharged by the

defendant from his position as structural

weld inspector at the Wolf Creek nuclear

power plant, located near New Strawn,

Kansas, in retaliation for reporting

safety hazards at the plant to the Nuclear

Regulatory Commission. This matter is

presently before the court upon defend-

ant’s motion to dismiss.

App. 36

This case was originally filed in

federal court in Illinois. Plaintiff’s

complaint contained three causes of ac-

tion. The first claim was a retaliatory

discharge claim; the second claim was an

intentional infliction of emotional dis-

tress claim; and the third claim was a

civil rights claim based upon the United

States Constitution. Judge Harold Baker of

the United States District Court for the

Central District of Illinois dismissed

plaintiff’s third cause of action and

transferred the case to this district

pursuant to 28 U.S.C. §1404(a). The de-

fendant had also sought dismissal of

plaintiff’s first two claims, but Judge

Baker held those arguments in abeyance for

a decision by this court. This court shall

now consider those contentions.

In the instant motion, defendant

contends that Counts I and II of plain-

tiff’s complaint do not state claims upon

App. 37

which relief can be granted. Defendant

contends that Kansas law does not recoc-

nize causes of action for retaliatory

discharge and intentional infiiction of

emotional distress based upon the allega-

tions made by the plaintiff. Defendant

further argues that plaintiff’s claims are

preempted by Section 210 of the Energy

Reorganization Act, 42 U.S.C. §5851l.

Finally, defendant asserts that plaintiff

is estopped from bringing this action

based upon a release he signed on August

aa, 19894.

The court will first consider plain-

tiff’s retaliatory discharge claim. The

law in Kansas is clear that in the absence

of a contract between the employer and

employee which establishes the duration of

employment, the employment is terminable

at the will of either party. Johnson v.

National Beef Packing Co., 220 Kan. 52,

—-

App. 38

5951 P.2d 779, 781 (1976). There is, howev-

er, a limited exception to this rule. In

Murphy v. City of Topeka, 6 Kan.App.2d

488, 630 P.2d 186 (1981), the Kansas Court

of Appeals held that an employee may bring

a tort action for retaliatory discharge

when he is terminated for filing a work-

mens’ compensation claim. The court stat-

ed:

We believe the public

policy argument has merit. The

Worxmens’ Compensation Act

provides efficient remedies and

protection for employees, and is

designed to promote the welfare

of the people in this state. It

is the exclusive remedy afforded

the injured employee, regardless

of the nature of the employer’s

negligence. To allow an employer

to coerce employees in the free

exercise of their rights under

the act would substantially

subvert the purpose of the act.

Id., 630 P.2d at i192.

The exact boundaries of the exception

created in Murphy have yet to be deter-

mined by the Kansas courts. The courts,

App. 39

however, have provided some guidelines. A

review of those decisions provides some

Guidance for the instant case.

In Tarr v. Riberglass, Inc., No. 83-

4234 (D.Kan., unpublished, 2/8/84), we

held that the exception created in Murphy

did not extend to an employee terminated

ian violation of the Kansas public policy

against age discrimination. We determined

that in order to state a claim of retalia-

tory discharge a person must meet two

requirements: (1) that he was discharged

in contravention of public pclicy; and (2)

that he is without any cther remedy under

either federal or state law. Id. The

rationale underlying these requirements is

that the courts have sought to protect

certain policies of the communities dy

providing a remedy for at-will employees

who were otherwise helpless in the face of

employer conduct that violated these

App. 40

policies. To the extent an employee has

other remedies, however, the public policy

is sufficiently served and there is no

need for judicial creation of new causes

of action. ld.

In Wynn v. Boeing Military Airplane

Co., 595 F.Supp. 727 (D.Kan. 1984), Judge

Theis refused to adopt the “no other

remedy available" requirement for the

recognition of public policy exceptions to

the Kansas employment-at-will dcctrine. He

held that an employee discharged because

of his race could assert a retaliatory

discharge claim despite remedies that

existed under state and federal law. He

reasoned that 4 retaliatory discharge

action “may provide remedies not available

under the federal law and does not have

requisites that the federal law

possesses." Id. at 729. Judge O’Connor,

however, has chosen to follow the “no

other remedy availabie” requirement estab-

App. 41

lished in Tarr and declined to follow

the Wynn analysis. See Polson v. Davis,

635 F.Supp. 1130, 1149-50 (D.Kan. 1986)

(Murphy not extended to employee dis-

charged because of sex or because of

opposition to employer’s sexually discrim-

inatory practices); Robinson v. Colt

Industries, No. 84-2472 (D.Kan., unpub-

lished, 3/5/86) (Murphy not extended to

employee discharged because of sex). In

Polson, Judge O’Connor stated:

Given the strong public Kansas

policy in favor of

employment-at-will, we find it

unlikely that the Kansas courts

would recognize an exception to

this doctrine where plaintiff

has an adequate remedy for the

conduct complained of--even

though one could conceive of a

remedy offering more comprehen-

Sive relief. (emphasis in origi-

nal).

635 F.Supp. at 1150

We continue to adhere to the require-

“ment set forth in Tarr that an employee

App. 42

must be without any other remedy under

federal or state law in order to assert a

retaliatory discharge claim under Kansas

law. We continue to believe, despite Judge

Theis’ opinion in Wynn, that the Kansas

courts would not create a further excep-

tion to the employment-at-will doctrine if

an employee had an alternate remedy. The

court’s adherence to this belief is rein-

forced by a recent decision of the Kansas

Supreme Court.

Following Murphy, the issue arose as

to whether an employee covered by 4 col-

lective bargaining agreement which provid-

ed for discharge only upon just cause and

contained a mandatory grievance and arbi-

tration procedure could assert a retalia-

tory discharge claim. The federal judges

in Kansas reached differing results. In

Sutton v. Southwest Forest Industries,

Inc., 643 F.Supp. 662 (D.Kan. 1986), Judge

Saffels held that an employee covered by a

App. 43

collective bargaining agreement could

asse

while in Edwards v. Western Manufacturing,

641 F.Supp. 616 (D.Kan. 1986), Judge Kelly

t a retaliatecry discharge clain,

held that such a claim could not be as-

serted by an employee covered by a collec-

tive bargaining agreement. The Kansas

Supreme Court settled the issue in Cox v.

United Technologies. Essex Group, inc.,

240 Kan. 95, 727 P.2d 456 (1986). In Cox,

the Kansas Supreme Court held that Murphy

wculd not be extended to include employees

covered by collective bargaining agree-

ments. The Court stated:

An employee covered by a collec-

tive bargaining agreement .

precluding discharge except for

proper cause and providing for a

grievance procedure which in-

cludes binding arbitration is

adecuately protected contractu-

ally from retaliatory discharge.

The public policy of Kaasas does

not require that the tort of

retaliatory discharge .. . be

extended to include employees

covered by a collective bargain-

ing agreement

Id.

App. 44

727 P.2d at 459.

The Cox case essentially affirms the

position taken by this court in Tarr

in that the Kansas courts will not

recognize a retaliatory discharge

claim where the employee has other

remedies available. In Cox, the Court

quoted extensively from and relied

upon a decision from Pennsylvania,

Phillips v. Babcock & Wilcox, 349

Pa.Super. 351, 503 A.2d 36 (1986), in

which the court carefully noted that

the employee covered by a collective

bargaining agreement had adequate

remedies available to him. The rea-

soning of that court has some impor-

tance to this case:

Appellant and all like-

Situated employees are not

without recourse when faced with

indiscriminate discharge even

when the discharge violates

public policy. The collective

bargaining agreement in this

instant case provides protection

App. 45

against suspension or discharge

without ‘proper cause.’ Surely,

in pursuing a grievance under

the provisions of the agreement,

if appellant can show that his

discharge was in retaliation for

his filing a workmen’s compensa-

tion claim, he will have proved

that his discharge was not for

‘proper cause.’ It would appear,

therefore, that appellant will

then be entitled to the remedies

provided in the agreement.

Furthermore, we are not

persuaded by avopellant’s argu-

ment that the wrongfully cis-

charged at-will employee has

greater remedies available ina

civil action than does a union

employee under a collective

bargaining agreement since a

Civil court could award punitive

damages. While the at-will

employee may be entitled to

Dunitive damages in a civil

action, he does not have the

ability to obtain some of the

remedies available to union

members; such as reinstatement

to his position, which is a

commonly provided remedy in

labor agreements. Thus, we find

that a difference in remedies is

not enough to justify an exten-

Sion of the coverage of the

wrongful discharge action.

Id., 503 A.2d at 37-38.

We do, however, acknowledge that the

Kansas Supreme Court, cespite several

App. 46

opportunities, has never actually embraced

the “no other evailable remedy" doctrine

established in Tarr. Nevertheless, the

clear message of Cox is that Murphy should

not be extended in situations where an

employee has other remedies available. The

Kansas courts have been very timid in

expanding the retaliatory discharge excep-

tion to the long-established

employment-at-will doctrine. This is, of

course, how we feel it should be since we

are dealing with a judicially created

exception. The Kansas legislature should

act if this exception is to be substan-

tially expanded. Without such action,

courts should be reluctant to enlarge the

exception, particularly where other reme-

dies are available.

In the instant case, there is no

Gispute trat plaintiff had other remedies

available to him. Section 210 of the

App. 47

Energy Reorganization Act, 42 U.S.C.

§5851, provides a federal cause of action

to employees who are discharged for com-

plaining about or reporting nuclear safety

hazards in the workplace. An employee so

discriminated against can obtain injunc-

tive relief, compensatory damages and

punitive damages. The remedies provided by

§5851 to employees in nuclear plants are

adequate. The availability of this remedy

precludes the court from expanding Murphy

to include the situation presented by this

case. It appears that plaintiff has,

unfortunately, failed to timely take

advantege of the remedies provided under

the Energy Reorganization Act. We do not

find that this fact has any impact on our

previous ruling. This court is only con-

cerned whether other remedies were avail-

able, not whether they are still available

to the employee. Accordingly, we must

grant defencant’s motion to dismiss Count

App. 48

I of | irre complaint for failure to

state a claim upon which relief can be

granted.

The court shall next consider plain-

titf’s intentional infliction of emotional

distress claim. Such a claim is generally

referred to in Kansas as an “outrage"

claim. See Roberts v. Saylor, 230 Kan.

289, 637 P.2d 1175, 1177 (1981). Four

elements must be demonstrated to establish

a claim for outrage: (1) the conduct of

the defencant must be intentional or in

reckless disregard of plaintiff; (2) the

conduct must be extreme and outrageous;

(3) there must be a causal connection

between the defendant’s conduct and plain-

tiff’s mental distress; and (4) plain-

tiff’s mental distress must be extreme and

severe. ig., 63ST F. 24 @t i1t79. I i8,

however, for the court to determine if two

shreshold requirements have been met

App. 49

before an outrage claim may be allowed to

proceed. First, the court must be con-

virced that reasonable fact finders might

Giffer as to whether the defendant’s

conduct may reasonably be regarded as so

extreme and outrageous as to permit recov-

ery. Second, the court must determine

whether the emotional distress suffered by

the plaintiff is of such extreme degree

the law must intervene because the dis-

tress inflicted is so severe that no

reasonable person should be expected to

endure it. Id., 637 P.2d at 1180.

The courts in Kansas have on several

occasions considered the first threshold

requirement in the context of employment

discharge cases. These cases have general-

ly held that the termination of an employ-

ee does not rise to the level of conduct

necessary for an outrage cause of action.

See Polson v. Davis, supra, at 1150-51;

Fietcher v. Weslev Medical Center, 585

App. 50

F.Supp. 1260, 1262 (D.Kan. 1984); Pickert

v. Kiley, No. 83-4021 (D.Kan., unpub-

lished, 1/30/86); Mattern v. Chance Manu-

facturing Co., Inc., No. 82-1841 (D.Kan.,

unpublished, 2/9/84). As Judge Kelly

stated in Fletcher:

[T]he termination of an employ-

ee, whatever the secret motive

underlying it, is the kind of

event that happens every day;

such an act is not even a breach

of modern-day business eti-

quette, much less an uncivilized

barbarism. Quite a bit

more--such as the encless stream

of vulgar, racist invective and

threats of violence uttered by

the defendant in Gomex v. Hug, 7

Kan.hpp.2d 603, 645 P.2d 916

(1982)--must accompany a firing

if it is to be deemed “outra-

ceous."

585 F.Supp. at 1262.

In accordance with the foregoing

cases, we must conclude that plaintiff has

failed to set forth a claim for outrage

under Kansas law. Plaintiff’s contention

that he was harassed and terminated for

reporting safety violations to the Nuclear

App. 51

Regulatory Commission are insufficient to

state an outrage cause of action. Accord-

ingly, the court shall also grant defend-

ant’s motion to dismiss on Count II of

plaintiff’s complaint.

With the aforementioned rulings, the

court finds it unnecessary to consider the

other arguments raised by the defendant.

Defendant’s motion shall be granted and

this action shall be dismissed.

IT IS THEREFORE ORDERED that defend-

ant’s motion to dismiss be hereby granted.

Both of plaintiff’s remaining claims are

hereby dismissed for failure to state a

claim upon which relief can be granted.

IT IS SO ORDERED.

Date this 24th day of April, 1987 at

Topeka, Kansas.

Richard D. Rogers

United States District Judge

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