F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 11 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
CYNTHIA M. BAUSMAN,
Plaintiff-Appellant,
v. No. 99-3229
INTERSTATE BRANDS
CORPORATION,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 96-CV-4119-SAC)
David O. Alegria, McCullough, Wareheim & Labunker, P.A., Topeka, Kansas, for
the Plaintiff-Appellant.
Leonard Singer (James R. Holland, II, with him on the brief) of Bioff Singer and
Finucane, LLP, Kansas City, Missouri, for the Defendant-Appellee.
Before SEYMOUR, and PORFILIO, Circuit Judges, and JENKINS, Senior
District Judge. 1
JENKINS, Senior District Judge.
The Honorable Bruce S. Jenkins, United States Senior District Judge for the District of
1
Utah, sitting by designation.
Plaintiff-Appellant Cynthia M. Bausman began her employment with
Defendant-Appellee Interstate Brands Corporation (“IBC”) on June 28, 1986. She
worked at IBC until her discharge from employment on July 5, 1994. Ms.
Bausman brought an action for wrongful discharge against IBC, alleging that IBC
terminated her employment in retaliation for her filing of a workers’
compensation claim, and that IBC did so in violation of the public policy of the
State of Kansas. IBC contends that it discharged Bausman pursuant to a neutral
attendance policy because of absences regarding which Bausman did not provide
doctor’s notes to confirm that her absence resulted from a work-related injury.
The action was brought within the district court’s diversity jurisdiction, 28
U.S.C. § 1332, and Kansas law governs. The district court granted summary
judgment in favor of IBC, and following the district court’s denial of her motion
to alter or amend its judgment, Ms Bausman appealed.
I
This court has jurisdiction of this appeal pursuant to 28 U.S.C. § 1291. On
appeal, the district court’s grant of summary judgment is reviewed de novo,
considering the evidence and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party. Cooperman v. David, 214 F.3d
1162, 1164 (10th Cir. 2000). Summary judgment is proper if the record shows
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“that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When, as in this
case, the moving party does not bear the ultimate burden of persuasion at trial, it
may satisfy its burden at the summary judgment stage by identifying "a lack of
evidence for the nonmovant on an essential element of the nonmovant's claim."
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998). To avoid
summary judgment, the nonmovant must establish, at a minimum, an inference of
the presence of each element essential to the case. Hulsey v. Kmart, Inc., 43 F.3d
555, 557 (10th Cir. 1994).
II
Under Kansas law, an employer cannot fire an employee in retaliation for
that employee filing a workers’ compensation claim; the filing of such a claim
represents the protected exercise of a statutory right. Murphy v. City of Topeka, 6
Kan. App. 2d 488, 630 P.2d 186 (1981). The Kansas courts have reasoned that
“[a]llowing an employer to discharge an employee for being absent . . . as the
result of a work-related injury would allow an employer to indirectly fire an
employee for filing a workers’ compensation claim, a practice contrary to the
public policy of this state . . . .” Coleman v. Safeway Stores, Inc., 242 Kan. 804,
816, 752 P.2d 645, 652 (1988). Consequently, “any absences caused by her work-
related injury should not be counted against” Ms. Bausman by her employer. Id.
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Coleman has been read to extend the protection of public policy to injured
employees who have not yet filed a workers’ compensation claim, preventing
employers from preemptively discharging injured employees who would be likely
to file statutory claims in the near future. Ortega v. IBP, Inc., 255 Kan. 513, 516,
874 P.2d 1188, 1191 (1994).
Burden of Proof
The rule, however, is not a matter of strict liability: “the plaintiff may not
recover for retaliatory discharge unless she proves that at the time of her
discharge the defendant knew or should have known the absences for which the
plaintiff was being fired were the result of her work-related injury,” an injury for
which she has filed or might file a claim for workers’ compensation. Ramirez v.
IBP, Inc., 913 F. Supp. 1421, 1436 (D. Kan. 1995), aff’d mem, 145 F.3d 1346
(10th Cir. 1998) (table). The burden rests upon Ms. Bausman to prove that IBC
discharged her in retaliation for filing a claim under the Kansas Workers'
Compensation Act. Ortega v. IBP, Inc., 255 Kan. 513, 528, 874 P.2d 1189 (1994).
Under Kansas law, she must prove a claim for retaliatory discharge “by a
preponderance of the evidence, but the evidence must be clear and convincing in
nature.” Ortega v. IBP, Inc., 255 Kan. 513, 528, 874 P.2d 1188 (1994). Evidence
is clear if “it is certain, unambiguous, and plain to the understanding.” Id.
Evidence is convincing if “it is reasonable and persuasive enough to cause the
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trier of fact to believe it.” Id. (citing Chandler v. Central Oil Corp., Inc., 253
Kan. 50, 58, 853 P.2d 649 (1993)).
Ms. Bausman may recover upon "proving that the discharge was 'based on,'
'because of,' 'motivated by' or 'due to' the employer's intent to retaliate," but she
does “not need to show that retaliation was the employer's sole motive or reason
for the termination.” Sanjuan v. IBP, Inc., 160 F.3d at 1298 (quoting Brown v.
United Methodist Homes for the Aged, 249 Kan. 124, 146-148, 815 P.2d 72
(1991)).
Burden-Shifting Approach
Because an employer rarely announces retaliation as its motive for
terminating an employee, “Our Supreme Court has adopted a burden-shifting
approach to analyze cases involving retaliatory discharge based on discrimination.
We hold that the same analysis should be applied in workers compensation
retaliatory discharge cases.” Rebarchek v. Farmers Cooperative Elev. &
Mercantile Association of Dighton, 28 Kan. App. 2d 104, 13 P.3d 17, 23 (2000),
review granted, No. 82,662 (Kan. Feb. 6, 2001). See Robinson v. Wilson
Concrete Co., 913 F. Supp. 1476, 1483 (D. Kan. 1996) (burden-shifting analysis
applies in workers compensation discharge cases). Proof of a prima facie case
creates a rebuttable presumption of retaliatory intent.
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To establish a prima facie case of retaliatory discharge under Kansas law,
Ms. Bausman must produce evidence demonstrating: “(1) [that] he or she filed a
claim for workers' compensation benefits, or sustained an injury for which [s]he
might assert a future claim for such benefits; (2) that the employer had
knowledge of plaintiff’s compensation claim, or the fact that [s]he had sustained a
work-related injury for which the plaintiff might file a future claim for benefits;
(3) that the employer terminated the plaintiff’s employment; and (4) that a causal
connection existed between the protected activity or injury, and the termination.”
Sanjuan v. IBP, Inc., 160 F.3d 1291, 1298 (10th Cir. 1998) (citing Chaparro v.
IBP, Inc., 873 F. Supp. 1465, 1472 (D. Kan. 1995)). See Robinson v. Wilson
Concrete Company, 913 F. Supp. at 1483; Huffman v. Ace Elec. Co., Inc., 883 F.
Supp. 1469, 1475 (D. Kan.1995); Rosas v. IBP, Inc., 869 F. Supp. 912, 916 (D.
Kan.1994). The requisite “causal connection” is the unlawful intent on the part of
the employer to terminate the employee because the employee has filed a statutory
claim, or has been injured and may file such a claim.
In this case, the critical factual question as to this element is whether IBC
knew—or should have known—that Ms. Bausman was absent on each of the
occasions for which she was being fired as a result of her work-related injury.
If a plaintiff has made her prima facie case, “the burden shifts to the
defendant employer to show an articulate, non-retaliatory reason for the
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discharge. Rosas v. IBP, Inc., 869 F. Supp. 912, 916 (D. Kan. 1994).” Sanjuan,
160 F.3d at 1298. If the employer meets this burden, “the burden shifts back to
the plaintiff but the plaintiff must show clear and convincing evidence that he or
she was terminated in retaliation for exercising rights under the Workers’
Compensation Act. Ortega, 874 P.2d at 1197-98.” Id.
III
The district court summarized the uncontroverted material facts, including
the following:
From June 28, 1986 through July 5, 1994, Cynthia Bausman worked for
IBC at its bakery in Emporia, Kansas, where it produces snack cakes and related
products.
IBC has a written attendance policy that applies to all employees and
disciplines employees for absences without notification, tardiness, leaving early
from work, and for excessive absences. An employee will receive a "charged
absence" for not coming to work when scheduled, for leaving work early, and for
being late to work by more than five minutes. Based on the number of absences
during a six-month period, the policy imposes progressive discipline: (1) an oral
warning after four absences; (2) a written warning after five absences; (3) a
“decision day” off with pay after six absences; and (4) discharge after seven
absences. IBC’s policy also establishes an "habitual absentee" status for
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employees who accrue eight absences during a twelve-month period: upon
notification of being an “habitual absentee,” an employee may be discharged if he
or she is absent once more during the following six-month period.
The written IBC policy contains the following exception concerning
absences for extended illness:
Employees who phone in pending absences daily (more
than (1) day) shall have each day of absence count as a
single occurrence, unless the employee furnishes a
physician's certificate documenting diagnosis, treatment,
and the necessity for multiple days of absence. The
Company may elect to count the multiple days of
absence as a single occurrence.
(Dk. 39, Tab 9).
Though not appearing in its written attendance policy effective January 1,
1991, IBC apparently has followed a practice that did not charge employees with
absences due to work-related injuries. Representatives of IBC's management had
told Bausman of this practice. According to various IBC management personnel
at the Emporia bakery, including Robert Lincoln, the personnel manager at this
bakery and the individual in charge of administering IBC's attendance policies,
IBC's practice was that it would not exempt absences as being caused by work-
related injuries unless the employee provided a note from a physician stating that
the absence was due to a work-related injury. Donald Wilson, IBC's production
manager, testified that without this doctor's note, the employee would be charged
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with an absence regardless of the employee's or the supervisor's opinion that the
absence was due to work-related injuries. Ms. Bausman’s supervisor, Brett Drum,
testified that an employee complaining of a work-related injury would be allowed
to leave work but that the employee would be charged with an absence unless the
employee later provided a physician's note stating the absence was due to the
work-related injury.
Nothing in IBC’s written attendance policy requires a doctor’s note to
substantiate absence due to a work-related injury, or precluded management from
excusing an absence as due to work-related injuries by accepting an employee's
representations without a doctor's note.
In July of 1992, Ms. Bausman first notified IBC that she had suffered a
repetitive stress injury to her wrist, elbow and shoulder caused by her work at the
IBC bakery. While she was given warnings concerning her job performance and
attendance in September 1992, from September of 1992 until May 1994, IBC did
not discipline Bausman for any reason.
Though she was absent from work during this period, most of the absences
were attributed to her work-caused medical condition. Bausman underwent
surgery for her condition on January 14, 1993, and consequently missed weeks of
work. IBC did not assess any points for those absences.
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In March of 1993, Bausman's physicians released her for work with certain
restrictions, and IBC provided her work within those restrictions. In April of
1993, Bausman's physicians released her for work without any restrictions.
In May of 1993, Bausman sought and obtained a position on a line that
required monitoring and removing wrapped cake products from a conveyor into a
shipping tray. IBC rotates employees on this line every several hours to avoid
employees doing the same task for the entire work day.
On May 2, 1994, IBC issued Bausman an oral warning for excessive
absences. The written notice accompanying the May 2 warning listed six dates
on which Bausman had been late or absent: November 9, 1993, and February 3,
February 7, April 26, April 28, and May 1, 1994. (Supp. App. at 48-50.)
Bausman testified that she met with her supervisor, Brett Drum, concerning this
warning and told him that the absences in April were due to her work-related
injury. Bausman presented a note dated May 4, 1994, from her family physician,
Dr. Bernard, who was not authorized to treat her for the work-related stress
injury, stating: "Please excuse from work due to medical problems for dates April
26, 27, & 28." (Supp. App. at 240.) As a result of this physician's note, IBC
charged Bausman with only one absence for April 26 through 28. Bausman,
however, never presented a physician's note stating that one or more of the
absences listed on the May 2nd warning were due to work-related injury, and
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conceded that she was late on February 7, 1994 because of a schedule change and
not due to any such injury. (Supp. App. at 50.) Thus, as of May 2, 1994, by
IBC’s count, Ms. Bausman had accrued five absences under IBC’s written
attendance policy.
Ms. Bausman testified that she was unaware of any requirement for a
physician's note regarding absences due to work-related injury and that she
believed the company was obligated to accept her statement concerning her
absences being the result of a work-related injury. She did acknowledge that she
had been told by her supervisors to bring notes from her physician and that on
occasion she had brought such notes.
After the May 2 warning, Bausman was absent from work for
approximately two weeks commencing May 3, 1994. Bausman testified that she
called Todd Crook at IBC and "told him that I had called the doctor and talked to
him about being sick quite a bit, due to the medication for my arm, and that would
take about two weeks to get it healed. I told this to Todd, and he said, 'Fine, you
will need a doctor's slip.' " (Supp. App. 104). With regard to this absence,
Bausman presented two notes from Dr. Bernard. The note dated May 6, 1994,
said: "Please excuse from work." (Id. at 240.) The note dated May 11, 1994,
said: "May return to work." (Id. at 242.) At some point, Bausman gave IBC a
Family and Medical Leave Act physician's certification form completed, signed
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and dated by Dr. Bernard on May 5, 1994. The certification states that Dr.
Bernard saw Bausman on May 4, 1994, diagnosed her condition as "gastritis"
commencing April 26, 1994, prescribed a medication, and concluded that
Bausman "does not need to be off work for current condition." (Id. at 258.)
Because of these physician's notes, IBC charged Bausman with only one absence
for the multiple days of work missed beginning on May 3, 1994.
Bausman again was absent on May 25, 1994, and presented no doctor’s
note concerning this absence. On May 26, 1994, IBC issued an "Habitual
Absentee Final Warning" that listed nine dates over the past twelve months when
she failed to work as scheduled, adding June 5, 1993, August 2, 1993, May 3,
1994, and May 25, 1994 to the five absences she had accrued under the May 2
warning. The warning further stated: "As of 5-26-94, your record will be frozen
at your current level of 9 absences. Any absences in the next six months before
11-25-94 will result in your discharge." (Supp. App. at 238.) Thereafter,
Bausman did not present a doctor’s note that explicitly identified any of the nine
absences on the Final Warning as being due to her work-caused medical
condition.
After receiving the Final Warning, Bausman left work early on May 27,
1994, and subsequently was absent from work for many of the days through June
17, 1994. Concerning these absences, Ms. Bausman presented to IBC the
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following two notes from her family physician, Dr. Bernard: "Cindy needs to
remain off work until I see her 6/6/94," dated May 31, 1994; and "Cindy may
return to work," dated June 6, 1994; she also presented IBC with a physician's
note dated June 16, 1994, from Newman Memorial County Hospital which stated,
"needs to stay off work until hives gone for 24 hrs." (Supp. App. at 250, 252,
254.) None of these notes said that Bausman's absences or treatment were due to
a work-related injury.
On June 24 and July 2, 1994, Bausman left work early saying her arm was
sore. Her supervisor, Brett Drum, replaced her and told her that she must bring
back a physician's slip when she returned to work. Bausman did not present any
note from a physician concerning these two absences.
On July 5, 1994, Bausman was terminated. Donald Wilson, the production
manager, called Bausman at home telling her that she need not report to work that
day as she had been terminated for absences. The decision to fire Bausman was
made by Robert Lincoln, the personnel manager, and Donald Wilson. In
documenting the termination, the plaintiff's supervisor, Brett Drum, recorded on
the "Notice of Separation" that Bausman was fired for "excessive absenteeism"
with the following explanation: "She was going home early far too many times.
She also was calling in at an excessive rate." (App. 30.) Lincoln testified that
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Bausman was fired solely because of her attendance record and not for her job
performance, attitude, or other violations of company rules.
On appeal, neither Ms. Bausman nor IBC has disputed the district court’s
recital of these facts. It thus remains uncontroverted that:
[a]t the time of Bausman's termination, Lincoln knew that
Bausman had left work early complaining occasionally of a sore arm
and "of physical difficulties with the same parts of her body for
which she was making a workers' compensation claim." . . . Lincoln
further knew at the time that Bausman's attorneys had written a letter
dated June 13, 1994, taking the position that all of Bausman's
"absences since April 26 through today are part and parcel of her
workers' compensation claim." . . . As for specific absences, Lincoln
knew that Bausman was claiming she went home early on May 27th
and went to the emergency room with complaints of arm pain and
that he had received from someone a message which said that
Bausman's absences on May 28th and 29th were due to "work comp."
Bausman v. Interstate Brands Corp., 50 F. Supp. 2d 1028, 1032-35 (D. Kan.
1999) (record citations omitted).
The District Court’s Grant of Summary Judgment
The district court concluded that Ms. Bausman had “established a prima
facie case of retaliatory discharge.” 50 F. Supp. 2d at 1043. Indeed, the facts
remain uncontroverted that Ms. Bausman suffered a work-related injury for which
she made a claim for workers’ compensation, that IBC knew of her claim, and
that IBC terminated her employment. The only element in genuine dispute is the
causal connection element, and with respect to that element, the district court
ruled that the record “reflects a genuine issue of material fact concerning the
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defendant’s knowledge regarding the cause of one or more of these absences,” id.,
and presumably a genuine issue as to the retaliatory intent that may be inferred
from such knowledge.
This court agrees that Ms. Bausman has alleged a retaliatory discharge
claim sufficient to raise a triable issue of fact as to her prima facie case,
particularly when all reasonable inferences are drawn in her favor as the non-
moving party. That being so, the burden would thus shift to IBC to refute the
prima facie case by offering a legitimate non-retaliatory motive for the discharge.
For purposes of summary judgment, the district court concluded that “IBC’s
stated ground for terminating Bausman is a legitimate, non-retaliatory reason for
discharge even though one or more of Bausman’s absences may have been due to
a work-related medical condition.” 50 F. Supp. 2d at 1044. While not phrased in
terms of summary judgment, the district court’s ruling effectively determined that
IBC has raised a triable issue as to its proffered legitimate, non-retaliatory reason
for discharging Ms. Bausman. This court agrees.
IBC having articulated a facially legitimate reason, “the plaintiff’s burden
is only to demonstrate a genuine dispute of material fact as to whether the
proffered reasons were unworthy of belief.” Morgan v. Hilti, Inc., 108 F.3d 1319,
1321 (10th Cir. 1997). “Demonstrating pretext gets plaintiff ‘over the hurdle of
summary judgment.’” Id. at 1323 (quoting Randle v. City of Aurora, 69 F.3d 441,
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452 (10th Cir. 1995)). Ms. Bausman need not affirmatively demonstrate that
retaliatory reasons motivated IBC’s decision:
Pretext can be shown by " 'such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them unworthy of credence and hence infer that
the employer did not act for the asserted non-discriminatory
reasons.'" Olson v. General Elec. Astrospace, 101 F.3d 947, 951-52
(3d Cir.1996) (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d
Cir.1994) (further citation omitted)).
Id. Of course, “‘[M]ere conjecture that [the] employer's explanation is a pretext .
. . is an insufficient basis for denial of summary judgment.’ Branson v. Price
River Coal Co., 853 F.2d 768, 772 (10th Cir.1988).” Id.
The district court examined the evidence in the record in some detail,
including the deposition testimony of Ms. Bausman and her supervisors and
managers at IBC. Finding the testimony somewhat ambiguous, the district court
nevertheless concluded that Ms. Bausman failed to come forward with evidence
“as to whether IBC's proffered reasons were unworthy of belief” sufficient to
raise a genuine issue of material fact as to pretext, thereby defeating summary
judgment:
On the record as it stands, no reasonable jury could find by a
preponderance of evidence which is clear and convincing that IBC's
articulated business reasons were unworthy of belief and were not the
real reasons for Bausman's discharge. In short, the court concludes
that the plaintiff would be unable to prove at trial that IBC
terminated Bausman because she had filed a workers' compensation
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claim and/or had sustained or aggravated a work-related injury for
which she might seek workers' compensation benefits.
50 F. Supp. 2d at 1047-48.
The district court’s conclusion was grounded upon Ms. Bausman’s repeated
failure to provide corroboration by a physician that her absences were a result of
her work-related injury. Her failure to provide doctor’s notes verifying her own
assertions furnished a reasonable, legitimate and non-retaliatory basis for the
enforcement of IBC’s existing attendance policy; Ms. Bausman, the district court
ruled, had been properly terminated in accordance with that policy.
IV
What IBC Knew or Should Have Known
IBC acknowledges that “Kansas law is that the employer is bound by what
it knew or should have known.” Yet in seeking to comply with Kansas law, IBC
would confine what it “knew or should have known” about the reason for Ms.
Bausman’s absence to what it read in physician’s notes submitted by Ms.
Bausman. 2
2
This approach lies at the heart of the Affidavit of Robert Lincoln, which Bausman
sought unsuccessfully to have stricken. The affidavit suggests that IBC could “know”
only that which a doctor’s note says. The district court recognized that Lincoln
“generally distinguished between his knowledge of what Bausman was claiming as her
reason for the absences and the company’s knowledge about the absences based on the
company’s absenteeism policy and practice.” 50 F. Supp.2d at 1031.
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In many instances, an employer’s request for corroboration by a medical
professional of an employee’s claim of absence due to injury represents a
reasonable means of investigating and verifying the reason for an employee’s
absence. It does not unduly burden or restrict an employee’s statutory right to
workers’ compensation for a work-related injury to request third-party
verification where there is room for doubt concerning a particular absence.
At the same time, an employer cannot adopt a workplace policy by which
the employer abdicates its duty to see, to hear, and to think. The fact that some
issues that arise in the workplace prove difficult to decide does not mean that an
employer need not decide them, or that they may routinely be avoided as a matter
of “unwritten policy.” The employer’s policy itself must be informed by the
public policy of the State of Kansas, which protects employees against
termination for absenteeism where those absences result from a work-related
injury and holds employers accountable for what they “knew or should have
known” about the cause of an employee’s absence. This remains a fact-driven
determination, not a question of unwritten policy.
Actual knowledge on the part of the employer satisfies the “notice of
injury” requirement of the Kansas Workers’ Compensation Act. Kan. Stat. Ann.
§ 44-520 (requiring ten-day notice of an accident “except that actual knowledge
of the accident by the employer or the employer’s duly authorized agent shall
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render the giving of such notice unnecessary.”). Actual knowledge of an
employee’s absence due to a work-related injury likewise should suffice for
purposes of the Kansas public policy vindicating the statutory workers’
compensation remedy.
An employer may not limit in advance what it “knows or has reason to
know” about an employee’s absence due to workplace injury to only one kind or
source of information, blinding itself to other observable facts. The Kansas
“knew or should have known” standard charges an employer with knowledge of
those facts concerning an employee’s workplace injury reasonably available to the
employer at the time. Kansas law enforces a rule of reason, a rule that must be
applied even-handedly in balancing the interests of both the employer and its
employees. 3
Electing to hear only those explanations proffered by physicians, IBC deftly
sidesteps the more problematic issues of employee credibility, and feigned injury
or incapacity. Indeed, IBC’s practice simply hands off these problematic issues to
medical professionals to resolve, wholly discounting IBC’s own knowledge of
3
The district court understood that the Affidavit of Robert Lincoln, read in light of its
limited frame of reference ( viz. , information gleaned solely from physician’s notes) was
not “false” or a “sham,” or directly contradictory of Lincoln’s deposition testimony, and
the motion to strike therefore was properly denied. However, in light of the fact-driven
nature of the Coleman inquiry, such a narrowly-drawn averment as to an employer’s
knowledge lends very little help to the court’s inquiry.
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what is happening in the workplace in favor of what verification an employee may
or may not be able to obtain from a physician:
Q. If you found that she was absent from work because of a
work-related injury, but she did not have a doctor’s note, would you
take that absence off?
A. No, I wouldn’t.
Q. Even if you believed her?
A. Yes, even if I believe her, I wouldn’t take it off.
Q. Even if you formed in your own mind the opinion that
the lady was off work and missed a day’s work because of a work-
related injury, if you didn’t have a doctor’s excuse, you would still
accept the penalty, correct?
A. Right.
(App. 194 (deposition of Donald Wilson).)
This goes too far. Coleman and its progeny expect an employer to act upon
what facts it knows or should know, not upon an unwritten practice that leads to
conscious avoidance of those facts on the part of the employer.
If absent third-party verification an employer would discount or reject an
employee’s assertion of work-related injury, then the request for verification
should be explicit and unequivocal, leaving no uncertainty as to the information
that is required. Otherwise, the practice merely becomes a trap for the unwary—a
trap that could be relied upon to mask an employer’s unlawful retaliatory intent,
as is alleged in this case.
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V
Summary Judgment on the Issue of Pretext
To affirm summary judgment, we must be able to conclude that Ms.
Bausman “failed to produce any evidence from which a reasonable inference
could be drawn” that IBC’s proffered reasons for her termination were
“pretextual.” Stewart v. Adolph Coors Co., 217 F.3d 1285, 1291 (10th Cir. 2000).
To show pretext, Ms. Bausman relies upon essentially the same evidence
that she earlier relied upon to establish her prima facie case concerning whether
IBC knew or should have known that her absences were due to her work-related
injury. Under the burden-shifting analysis, although the prima facie presumption
of unlawful intent “‘drops out of the picture’ once the defendant meets its burden
of production, . . . , the trier of fact may still consider the evidence establishing
the plaintiff’s prima facie case ‘and inferences properly drawn therefrom … on
the issue of whether the defendant’s explanation is pretextual,’” Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106
(2000) (citations omitted) (quoting Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 255, n. 10 (1981)). And “a prima facie case and sufficient evidence
to reject the employer’s explanation may permit a finding of liability,” even
absent “additional, independent evidence of discrimination” or other unlawful
intent. Id., 530 U.S. at 149, 120 S.Ct. at 2109.
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It remains uncontroverted that IBC knew Ms. Bausman claimed almost all
of her 1994 absences as resulting from her work-related injury, and that she had
filed a workers’ compensation claim based upon that injury. Just as was drawn in
connection with her prima facie case, an inference may be drawn that IBC acted
with unlawful retaliatory intent, notwithstanding its asserted “neutral” reason for
the discharge.
An inference favorable to Bausman may also be drawn from the fact that
the formal warnings she received from IBC make no explicit reference to that
which IBC insists it needed: a physician’s corroboration that Bausman’s
absences resulted from her work-related injury. (Supp. App. 236, 238.) While
she was supplied with a Family and Medical Leave Act form, which was
completed by her doctor and returned to IBC, (id. 258), IBC furnished no form or
questionnaire seeking information about the work-related nature of her health
problems. Instead, her supervisor made verbal requests for “a doctor’s note,”
several of which Ms. Bausman provided in 1994. On the present record, it
remains unclear whether prior to deciding to terminate her employment, IBC
communicated to Bausman its dissatisfaction with the form or content of the
physician’s notes she had submitted.
On the present record, it also appears that IBC had excused Ms. Bausman’s
absences due to her work-related injury from September 1992 until early 1994,
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assessing no attendance points against her, and apparently doing so without
benefit of detailed physician’s notes. However, her injury did not go away.
While Ms. Bausman had received surgical treatment in 1993, and thereafter was
taking medications for her repetitive stress injury to her arm, it was apparent from
the facts known to her supervisor that she continued to struggle with frequent arm
soreness, coupled with gastric disturbances, and that these chronic problems were
persisting into May and June 1994. (See Supp. App. 124, 131.) Ms. Bausman’s
claim for workers’ compensation for this injury likewise continued to accrue—a
fact which a jury could reasonably conclude IBC managers knew at the time the
decision was made to terminate her employment.
Ms. Bausman also points to other IBC practices in the workplace as
evidencing anti-worker’s compensation animus. Through various job safety
“incentive” programs, IBC at least in the past has been treading the fine line
between encouragement and embarrassment vis-a-vis employees who have
suffered workplace injuries, such as providing red stripes saying “I had an
accident” to be worn on an injured employee’s hard hat for one year. Ms.
Bausman urges that an inference of hostility, even a retaliatory animus towards
workers’ compensation claims, may be drawn from IBC’s promotion of these
programs. While not decisive of the issue, such evidence may support an
inference of unlawful animus that taken together with other inferences, may
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justify a finding that IBC’s reliance on its unwritten practice may have been
pretextual.
These are questions better suited for resolution by the finder of fact based
upon the evidence presented and a first-hand opportunity to evaluate the
credibility of the witnesses. We cannot say that appellant “failed to produce any
evidence from which a reasonable inference could be drawn”in her favor
concerning whether IBC’s stated reason for her termination was pretextual. To
the contrary, we conclude that Ms. Bausman raised a genuine issue of material
fact concerning pretext, and that the summary judgment entered by the district
court based upon this element of her retaliatory discharge claim was in error.
CONCLUSION
The district court’s order denying the motion to strike the Affidavit of
Robert Lincoln is AFFIRMED; the judgment of the district court is REVERSED
and REMANDED for further proceedings consistent with this Opinion.
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