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This order and judgment is not binding precedent, except under the doctrines of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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