Frank v. Garden Medical

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 9 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk

KAREN FRANK,

Plaintiff-Appellant,

v. No. 96-3067
(D.C. No. 94-CV-1003)
GARDEN MEDICAL CLINIC, P.A., (D.Kan.)

Defendant-Appellee.

ORDER AND JUDGMENT *

Before BRISCOE, McWILLIAMS, and LUCERO, Circuit Judges.

Karen Frank appeals from summary judgment entered in favor of Garden

Medical Clinic on her state law retaliatory discharge claims. We affirm.

We review the grant of summary judgment de novo, applying the same legal

standard used by the district court under Fed. R. Civ. P. 56(c). Summary

judgment is appropriate if the pleadings, affidavits, and discovery material show

there is no genuine issue of material fact and that the moving party is entitled to

judgment as a matter of law. In applying this standard, we view the record and

*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
inferences drawn therefrom in the light most favorable to the party opposing

summary judgment. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996).

Frank, a registered nurse, was employed by the clinic in June 1990 when

she assisted Dr. Meyers in treating a child. The child died the following day.

Fearing a malpractice suit, Dr. Meyers asked Frank to prepare a statement about

the incident. There was no evidence that anyone attempted to influence the

content of the statement. Frank prepared a statement and gave it to the

administrator of the clinic. Neither the statement nor evidence of its content is in

the record on appeal. Frank was promoted to nurse supervisor in September 1990.

Although she had been an excellent nurse, she was not an effective supervisor.

There was evidence that she did not have the support of other nurses and she did

not get along with the administrator.

A lawyer representing the deceased child's family sent a demand letter to

the clinic in December 1991. Frank's written statement could not be found and

Dr. Meyers asked her to prepare another statement. Again, there was no evidence

that anyone tried to influence the content of the statement. Frank prepared and

submitted a second statement on January 3, 1992. This second statement is not in

the record and there is no evidence of its content. Four days after Frank

submitted the statement, the clinic administrator advised her that she could either

resign or be fired, but did not tell her why.

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 Frank first contends the district court erred in entering summary judgment,

denying her claim that her discharge from her nurse's position at the clinic

violated public policy of the State of Kansas which requires medical professionals

to maintain patient records. See Kan. Admin. Regs. § 100-24-1(b). We disagree.

The record does not support Frank's claim because there is no evidence that

her discharge was causally related to the loss or destruction of her first statement.

Regulation 100-24-1(b) requires medical professionals to maintain patient records

for ten years. Even if we assume Frank's original written statement is a patient

record within the meaning of the regulation and that the clinic violated the

regulation by losing it or, as Frank suggests, by destroying it, there is nothing in

the record from which it could reasonably be inferred that her discharge violated

the public policy of § 100-24-1(b). There was no evidence that she ever

complained about or reported the loss of her first statement or stated an intent to

report it to anyone inside or outside the clinic. Consequently, she could not have

been fired in retaliation for reporting the loss of the statement. Cf. Larson v.

Ruskowitz, 850 P.2d 253, 256-57 (Kan. 1993); Palmer v. Brown, 752 P.2d 685,

689-90 (Kan. 1988).

Under Kansas law, firing an employee for opposing illegal or unethical

activity is actionable. Brown v. United Methodist Homes for the Aged, 815 P.2d

72, 81 (Kan. 1991); Morriss v. Coleman Co., 738 P.2d 841, 846 (Kan. 1987).

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Firing an employee for opposing illegal falsification or destruction of medical

records would be actionable as contrary to public policy. However, there was no

evidence Frank was ordered, asked, or otherwise pressured to destroy or falsify

any records or that she opposed any such order or suggestion. Frank's written

statements are not in the record and there is no evidence that either statement was

unfavorable to Dr. Meyers or the clinic. Frank herself testified that she did not

believe her discharge had anything to do with her second statement.

Frank also suggests she was fired to discredit her as a witness and to make

her less available as a witness by giving her a reason to carry out plans to leave

the jurisdiction. However, discharge for either reason would not violate the

policy of § 100-24-1(b), which is the only statute or regulation on which she

specifically relies. The requirement that medical professionals keep patient

records does not require them to retain employees with knowledge of patient

treatment. Attempting to prevent a witness from testifying by inducing her to

leave the jurisdiction might violate Kan. Stat. Ann. § 21-3682, which makes it

unlawful to knowingly and maliciously prevent, dissuade, or attempt to prevent or

dissuade any witness from attending or giving testimony at any civil or criminal

trial, proceeding, or inquiry. Although a discharge for that reason may be

actionable under Kansas law, see Palmer, 752 P. 2d at 689, the record does not

support the theory that Frank was discharged to prevent her from testifying.

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 Frank points to an incident that occurred in December 1990 when Dr.

Meyers' attorney came to the office to discuss the impending malpractice action.

Frank overheard Dr. Meyers say to the attorney, "[Y]es, it was Karen Frank and

she is here, I'll go get her. I believe she's working today." Appendix D at 129.

Dr. Meyers then came out of the room and walked past Frank without speaking to

her. Although Frank had not heard what the attorney said to Dr. Meyers in

response to his offer to "go get" Frank, she inferred that Dr. Meyers was trying to

prevent his attorney from talking with her. This inference is mere speculation.

There is no evidence in the record that anyone had any reason to believe Frank's

testimony would be unfavorable to Dr. Meyers. In the absence of any evidence

that Frank would be a damaging witness against Dr. Meyers, it cannot reasonably

be inferred that the clinic fired her to prevent her from testifying. There is also

no basis for an inference that the clinic fired Frank to discredit her as a witness.

This theory is inconsistent with the uncontroverted evidence that the clinic

administrator offered Frank the choice of resigning. Doctors at the clinic,

including Dr. Meyers, wrote favorable letters of recommendation for Frank.

Frank also contends the district court erred in entering summary judgment,

denying her state law claim that she was fired in retaliation for her role in

reporting sexual harassment by one of the doctors at the clinic. We disagree. To

establish a retaliatory discharge claim under Kansas law, a plaintiff must show

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there are no alternative remedies under state or federal law. A state law

retaliatory discharge action cannot be based on conduct for which adequate

statutory remedies exist, such as Title VII or other civil rights statutes. See

Polson v. Davis, 895 F.2d 705, 709-10 (10th Cir. 1990); Anglemyer v. Hamilton

County Hosp., 848 F. Supp. 938, 942 (D. Kan. 1994).

Title VII provides remedies for discrimination by an employer against an

employee who has opposed unlawful discrimination under Title VII. See, 42

U.S.C. §§ 2000e-3, 2000e-5. Unlawful discrimination under Title VII includes

sexual harassment. See Harris v. Forklift Systems, 510 U.S. 17 (1993). Because

there are remedies under Title VII for the conduct alleged by Frank, she cannot

bring a state law retaliatory discharge action.

AFFIRMED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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