The opinion of the court was delivered by Nuss, C.J.:
Rachel Platt, whose probationary employment was terminated by Kansas State University (University), sued the institution for retaliatory discharge. She alleged the University fired her as a result of her potential workers compensation claims for work related injuries.
The district court dismissed Platt's lawsuit essentially for lack of subject matter jurisdiction because she failed to exhaust her administrative remedies. It held that Platt was required under the Kansas Judicial Review Act, K.S.A. 77-601 et seq. (KJRA), to first present her retaliatory discharge claim to the University for determination. A panel of the Court of Appeals reversed that dismissal and remanded the case to the district court for further proceedings. We affirm the panel and hold Platt's tort claim is not governed by the KJRA.
At the outset, we acknowledge that when a district court has granted a motion to dismiss, "an appellate court must accept the facts alleged by the plaintiff as true, along with any inferences that can reasonably be drawn therefrom." Cohen v. Battaglia, 296 Kan. 542, 546, 293 P.3d 752 (2013). Accordingly, the following facts are those asserted by Platt in her district court petition.
Platt was hired by the University as an accounting specialist in September 2011, and placed on an initial 6-month probationary period customary for new hires. Platt soon began to experience health problems that she
Problems were indeed later determined to exist with the ventilation system in Platt's office. She requested that the University fix the problem, and it arranged a meeting between Platt and an industrial hygienist to further evaluate the issue. Platt's employment was terminated the same day as that meeting. The University claimed the termination was for excessive absences — which Platt alleged were mainly a result of her work-caused health issues. Her firing on March 7, 2012, came 2 weeks before the end of her probationary period.
Platt sued the University and argued her employment termination was wrongful and in retaliation for her potential claims under the Kansas Workers Compensation Act (KWCA). K.S.A. 44-501 et seq. She asserted she performed her job satisfactorily and that her firing was causally related to the University's discovery that she had an occupational disease connected with the air quality of her office. She sought damages exceeding $75,000 for loss of income, emotional distress, and costs.
The University filed a motion to dismiss. It argued the district court did not have subject matter jurisdiction over Platt's suit because her claims were governed by the KJRA, which required her to exhaust all administrative remedies made available by the University before judicial review could begin. See K.S.A. 2013 Supp. 77-612.
The court granted the University's motion to dismiss. It held the "administrative process could have accommodated [her] claim and granted to her the fundamental relief sought, reinstated employment."
A panel of the Court of Appeals reversed the district court. In Part A of its opinion, the panel held that, contrary to the University's assertion, Platt was "not seeking a review by the court of the process by which the University — as an agency — performs, or fails to perform, its statutory duties, function, or activities." Platt v. Kansas State University, No. 110,179, 2014 WL 6090403, at *4 (Kan. App. 2014) (unpublished opinion). Instead, the panel continued, "[she] seeks redress from the [district] court for a tortious act committed by the University unrelated to the agency's administrative function...." 2014 WL 6090403, at *4.
Consequently, the panel determined that the district court incorrectly defined Platt's action as one of wrongful discharge seeking reinstatement of her employment. According to the panel, Platt actually claimed that the University committed the tort of retaliatory discharge and she sought monetary damages that the University was incapable of awarding. So the panel held that Platt's claims were not governed by the KJRA and jurisdiction was proper in the district court.
In Part B of the panel's decision, it evaluated the case in the alternative, i.e., as if the KJRA had applied to Platt's claims. Platt, 2014 WL 6090403, at *5-8. It responded to the University's apparent argument that Platt should have sought relief for her termination from the University's Support Staff Peer Review Committee, which provides terminated employees an opportunity to seek redress before an impartial University committee. After considering the terms of Platt's employment during her probationary period and interpreting relevant statutes governing employment in state agencies, the panel held that the University's procedure was unavailable to Platt as a probationary employee. As a result, the panel held she was not required to show exhaustion of those remedies in order to pursue her tort claims in the district court. 2014 WL 6090403, at *8.
After the panel reversed the district court's dismissal, it remanded the case to that court for further proceedings.
We granted the University review of the panel's decision under K.S.A. 20-3018. Our jurisdiction is under K.S.A. 60-2101(b).
More facts will be added as necessary to the analysis.
Issue: Platt's tort claim of retaliatory discharge is not governed by the KJRA.
Platt responds that her claims sound in tort and therefore are not governed by the KJRA. She asks us to reject the University's assertion that all employment decisions by administrative agencies are "agency actions" governed by the KJRA. Consequently, she requests we uphold the panel's determination that her complaint amounted to a suit for retaliatory discharge — which the University was incapable of adjudicating — and affirm its reversal and remand to the district court.
This is an appeal from a district court's grant of a motion to dismiss. We review such a legal decision under a de novo standard. Cohen, 296 Kan. at 545, 293 P.3d 752; Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 438 (2008). "Additionally, when a district court has granted a motion to dismiss ... an appellate court must accept the facts alleged by the plaintiff as true, along with any inferences that can reasonably be drawn therefrom." 296 Kan. at 546, 293 P.3d 752. If those facts and inferences state a claim based on plaintiff's theory or any other possible theory, the dismissal by the district court must be reversed. 296 Kan. at 546, 293 P.3d 752. To the extent that resolution of this issue requires this court to interpret the KJRA, review is unlimited. See Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).
At the heart of our analysis is our conclusion that the district court misinterpreted the nature of Platt's claims and the relief she sought. The order of dismissal clearly showed the court considered Platt's claim to be one of wrongful termination which simply could be remedied through the University's reinstatement of her employment:
Turning first to the remedy Platt seeks, her petition shows she did not seek "restoration of employment." Rather, she requested costs and monetary damages for loss of income and emotional distress "and such other and further relief as the Court may deem just, fair and equitable." Moreover, the court's dismissal cut off any opportunity for Platt to later ask the court for permission to amend her petition to add a claim for punitive damages — a procedural delay required by Kansas law. See K.S.A. 60-3703 ("No tort claim or reference to a tort claim for punitive damages shall be included in a petition ... unless the court enters an order allowing an amended pleading that includes a claim for punitive damages" after "plaintiff has established that there is a probability that the plaintiff will prevail on the claim.").
Turning next to the nature of Platt's claims, she asserts the University's actions constituted retaliatory discharge — an actionable tort recognized in the common law of this state that is discrete from a general discharge of employment. See Campbell v. Husky Hogs, 292 Kan. 225, 227-28, 255 P.3d 1 (2011) (collecting cases); Ortega v. IBP, Inc., 255 Kan. 513, 516-17, 874 P.2d 1188 (1994) (employer prohibited from firing employee because of absence caused by work-related injury and potential workers compensation
We recognize that Platt did not explicitly label her claims as retaliatory discharge. But her previously mentioned petition assertions lead to the conclusion that this tort formed the basic nature of her action against the University. See Bonin v. Vannaman, 261 Kan. 199, 209, 929 P.2d 754 (1996) ("`The nature of a claim ... is determined from the pleadings ... and from the real nature and substance of the facts therein alleged.'").
As for whether Platt's petition has actually met the specific elements of a prima facie claim for retaliatory discharge, we observe she alleged that the University knew she was suffering from ill health as a result of the working conditions it provided. She further alleged that because of this ill health, and in anticipation of her possible workers compensation claim, the University ended her employment. We are required to assume her petition allegations are true. Cohen, 296 Kan. at 546, 293 P.3d 752. And we conclude from these allegations Pratt has established a prima facie claim for this tort against the University. See Campbell, 292 Kan. at 235, 255 P.3d 1.
Now that we have identified the correct nature of Platt's particular claims and determined she has met her prima facie obligation, our next step is to determine whether those claims fall within the purview of the KJRA. This determination is important because the KJRA "establishes the exclusive means of judicial review of agency action." K.S.A. 77-606. And "agency action" is defined as "(1) the whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and regulation or an order; or (3) an agency's performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise." K.S.A. 77-602(b).
The University essentially argues that this language of subsection (b)(3) should be read to cover all agency action, even if not connected to the central purpose for which the agency was established — and even if the action rises to the level of tortious conduct. The University further argues that Kansas caselaw supports its interpretation.
We disagree with the University's expansive reading of the KJRA as well as its interpretation of Kansas caselaw. As part of our explanation, we now analyze those appellate court decisions it cites.
In Lindenman v. Umscheid, 255 Kan. 610, 875 P.2d 964 (1994), the plaintiffs sued the Kansas Department of Health and Environment (KDHE) and other agencies for civil rights violations under 42 U.S.C. § 1983 (1988) and the torts of malicious prosecution and abuse of process. Their claims arose out of the suspension of their child day care center licenses. The defendants moved to dismiss by arguing that the KJRA was the exclusive remedy for the plaintiffs who had failed to comply with the Act's procedures. The district court granted the motion on that jurisdictional ground as well as ruling on other related motions.
We reversed that court's decision, holding that the KJRA does not apply to the civil tort actions — malicious prosecution and abuse of discretion — against an administrative agency:
The University also cites Heiland v. Dunnick, 270 Kan. 663, 19 P.3d 103 (2001), to support its argument that employment decisions of state agencies are "agency action" which makes the KJRA the exclusive remedy for employees disgruntled by such decisions. Heiland was an auditor employed by the Kansas Savings and Loan Department (KSLD) who was permanently laid off due to agency staff reductions. Because of his status as a laid-off employee, he was entitled to preferential rehiring treatment under an administrative regulation in force at the time. After his layoff, the KSLD was incorporated into the Office of the State Bank Commissioner (SBC).
Heiland accused SBC of failing to provide him the preferential treatment required by the reemployment regulations applicable to SBC's predecessor, KSLD. Alleging his claim "[fell] outside the purview of the KJRA," he proceeded to district court with a declaratory judgment action against the Kansas Bank Commissioner. Heiland, 270 Kan. at 668, 19 P.3d 103. There he sought the SBC's compliance with the relevant regulations, e.g., to accord him preferred hiring status.
Heiland's action was ultimately dismissed by the district court for lack of subject matter jurisdiction on the grounds that his claims were governed by the KJRA and he had failed to follow its procedures, i.e., timely filing a petition for district court review of the agency's rejection of his claim. Heiland, 270 Kan. at 664-67, 19 P.3d 103. The Court of Appeals affirmed the dismissal. Heiland v. Dunnick, No. 81,319, 996 P.2d 848, unpublished opinion filed February 4, 2000.
This court also affirmed the dismissal and held the agency action Heiland sought to enforce was governed by the KJRA. But on the road to this conclusion, the Heiland court made two related acknowledgments that are important to our analysis of the instant case.
First, the court confirmed that some claims can support a separate court action against an agency, i.e., independent of the KJRA:
Second, the Heiland court confirmed that the particular claims contained in Lindenman 7 years earlier — violations of civil rights, malicious prosecution, and abuse of process — "were allegations that the KDHE could not administratively address. We held that because the claims were tort claims for wrongful acts, they did not fall under the
With these acknowledgments in mind, the Heiland court distinguished between (1) the type of claim brought by Heiland and (2) those brought by the plaintiffs in Lindenman and also Wright v. Kansas Water Office, 255 Kan. 990, 881 P.2d 567 (1994). As the Heiland court noted, Wright involved an employee's wrongful termination claim based on the constitutionality of legislation ordering him to be terminated, "an issue which the Kansas Water Office, the administrative agency involved, was not empowered to address." Heiland, 270 Kan. at 668-69, 19 P.3d 103 (citing Wright, 255 Kan. at 992-93, 881 P.2d 567.) So in Wright the court held the "plaintiff was not required to exhaust administrative remedies or otherwise comply with the KJRA." (Emphasis added.) 270 Kan. at 668, 19 P.3d 103.
The Heiland court contrasted the claims in these two cases with those of its own plaintiff's:
As a result, the court ultimately rejected Heiland's argument that his claim fell "out-side the purview of the KJRA." Heiland, 270 Kan. at 668, 19 P.3d 103. It concluded that Heiland's "claims are based on an agency action of a state agency and the relief requested is one that the agency can grant under its authority," e.g., to accord him preferred hiring status. 270 Kan. at 669, 19 P.3d 103.
Accordingly, both Heiland and Lindenman reveal that our previous interpretation of the KJRA does not support the University's position, i.e., that all complaints regarding state agency actions must move through the KJRA for adjudication. See also Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 755, 199 P.3d 781 (2009) ("`actionable claims which fall outside the authority of an agency to grant can support a separate action by an aggrieved party'") (quoting Heiland, 270 Kan. at 668, 19 P.3d 103); Jones v. State, 279 Kan. 364, 367, 109 P.3d 1166 (2005) (same); 10th Street Medical v. State, 42 Kan.App.2d 249, 254, 210 P.3d 670 (2010) (same).
Stating this conclusion more specifically and applying its principle to the instant case, in Lindenman this court held that "the KJRA does not apply to civil tort actions against an administrative agency." 255 Kan. at 619-20, 875 P.2d 964. In other words, it ruled that torts are outside the purview of the KJRA. And retaliatory discharge is a tort, particularly when an employee has been fired because of a potential workers compensation claim and absence caused by work-related injury See Ortega, 255 Kan. at 516-17, 874 P.2d 1188. Consequently, just on this simple basis, Platt's cause of action is outside the purview of the KJRA.
The general conclusion that torts are outside the purview of the KJRA has been repeatedly confirmed in Kansas caselaw since Lindenman in 1994. See Heiland, 270 Kan. at 668, 19 P.3d 103 (summarizing Lindenman, "because the claims were tort claims for wrongful acts, they did not fall under the KJRA"); Jones, 279 Kan. at 367, 109 P.3d 1166 (citing Lindenman, "tort claims for wrongful acts could not be addressed
Especially illustrative of this principle is Smith v. Bates Technical College, 139 Wn.2d 793, 991 P.2d 1135 (2000). As in the instant case, the Smith plaintiff sued the college and alleged her termination of employment violated the public policy against discharging an employee in retaliation for exercising a right — in Smith, for pursuing a grievance. The trial court dismissed her claim for failure to exhaust her administrative remedies with the Public Employment Relations Commission (PERC), and the Court of Appeals affirmed.
The Washington Supreme Court reversed the dismissal. Although stating its rationale in the context of remedy exhaustion, the Smith court reversed because, among other things, plaintiff's wrongful discharge claim was "independent" of any contractual agreement or statute providing administrative procedures for resolving employment disputes:
In this context, the Smith court also ruled that reversal and remand were required because the administrative agency had no clear authority to assess all damages that would be available in a tort action.
The rationale of the Washington Supreme Court is echoed in Kansas caselaw.
Like our sister court, we have often observed the important purpose embedded in the tort of retaliatory discharge. "The caselaw makes it obvious that Kansas courts permit the common-law tort of retaliatory discharge as a limited exception to the at-will employment doctrine when it is necessary to protect a strongly held state public policy from being undermined." (Emphasis added.) Campbell, 292 Kan. at 229, 255 P.3d 1 (collecting cases). And "By `public policy,' we have referred to a principle of law which holds that no citizen can lawfully do that which injures the public good." Coleman, 242 Kan. at 807, 752 P.2d 645.
As in Washington, emotional distress damages, i.e., for pain and suffering, are recoverable in retaliatory discharge cases in Kansas. Campbell, 292 Kan. at 237,
Moreover, in Coleman, "We did not wish to immunize employers with collective bargaining contracts from `accountability for violations of state public policy.'" Hysten, 277 Kan. at 561, 108 P.3d 437 (citing Coleman, 242 Kan. at 813, 752 P.2d 645) (citing Midgett v. Sackett-Chicago, Inc., 105 Ill.2d 143, 150, 85 Ill.Dec. 475, 473 N.E.2d 1280 [1985]). Accordingly, punitive damages are available against the retaliatory employer even in those circumstances. See Hysten, 277 Kan. at 563, 108 P.3d 437 (citing Murphy v. City of Topeka, 6 Kan.App.2d 488, Syl. ¶ 7, 630 P.2d 186 [1981]).
The Midgett decision cited by Coleman explained that punitive damages were unavailable under the collective bargaining agreement in that case. But the Illinois Supreme Court concluded that punitive damages nevertheless had a valuable place in the employee-employer relationship — there, in instances of retaliatory discharge for filing a workers compensation claim:
Kansas appellate courts frequently have acknowledged the importance of the availability of recovering punitive damages and damages for pain and suffering in retaliatory discharge cases. See, e.g., Campbell, 292 Kan. at 237, 255 P.3d 1. See also Murphy, 6 Kan. App.2d at 497, 630 P.2d 186. As we said in Hysten, 277 Kan. at 563, 108 P.3d 437, which dealt with the similar issue of whether the Federal Employees Liability Act provided adequate alternate remedies to those available under tort law:
We acknowledge that an emphasis upon the availability of these particular remedies could point toward satisfying the KJRA's exhaustion requirement rather than showing that the plaintiff's claim simply is beyond the purview of the KJRA. See, e.g., Colorado Interstate Gas Co. v. Beshears, 18 Kan.App.2d 814, 821, 860 P.2d 56 (1993) (no exhaustion required where no administrative remedy is available or the remedy is inadequate to address the problem). Indeed, in 2009 the legislature amended the KJRA to include express language incorporating part of this exhaustion rule exception to comport with Beshears and other Kansas caselaw. See K.S.A. 2009 Supp. 77-612(d) ("the court may relieve a petitioner of the requirement to exhaust any or all administrative remedies to the extent that the administrative remedies are inadequate or would result in irreparable
After all, demonstrating to the court one's exhaustion of administrative remedies under K.S.A. 2015 Supp. 77-612 — or even demonstrating that exhaustion of those inadequate remedies is unnecessary under K.S.A. 2015 Supp. 77-612(d) — still acknowledges the KJRA is in play. In other words, it recognizes that a KJRA condition must be met before jurisdictionally being allowed to proceed with a suit asking for court review of an agency action. See, e.g., Rebel v. Kansas Dept. of Revenue, 288 Kan. 419, 427, 204 P.3d 551 (2009) ("[I]f a person does not exhaust all available and adequate administrative remedies before filing a petition for judicial review of an agency action, the district court lacks subject matter jurisdiction to consider the contents of the petition."). But we agree with Platt that such a situation is distinct from the one where the KJRA never had any applicability to a case in the first place. See, e.g., Heiland, 270 Kan. at 668, 19 P.3d 103 (noting in Wright, plaintiff not required to exhaust administrative remedies "or otherwise comply with the KJRA").
So an emphasis on remedies for exhaustion purposes would be misplaced in the instant case. The emphasis of our analysis instead is upon the nature of a plaintiff's claim: for Platt, the tort of retaliatory discharge. See Lindenman v. Umscheid, 255 Kan. 610, 619-20, 875 P.2d 964 (1994) ("the KJRA does not apply to civil tort actions against an administrative agency"). See also Heiland, 270 Kan. at 668, 19 P.3d 103 ("`The KJRA is the exclusive remedy for all requested relief which an agency can grant under its authority. Only actionable claims which fall outside the authority of an agency to grant can support a separate action by an aggrieved party.'") (Emphasis added.).
Our discussion of the availability of punitive damages and those for pain and suffering primarily demonstrates the importance under Kansas law of the tort of retaliatory discharge in the workers compensation context. It is a common-law tort based upon an employer's violation of strongly held public policy, i.e., a principle which holds no citizen can lawfully do that which injures the public good. Campbell, 292 Kan. at 235, 255 P.3d 1. As was explained 35 years ago by the first appellate court to recognize this tort in Kansas:
The Murphy court observed that one of the primary purposes for the imposition of punitive damages is to deter like wrongs from being committed in the future. So it authorized such damages for this newly recognized tort. 6 Kan.App.2d at 497, 630 P.2d 186.
Accordingly, the tort of retaliatory discharge in the workers compensation context would be one of the least likely claims to ever be adjudicated by an administrative agency in Kansas, particularly an agency being asked to punish itself.
The remaining authorities cited by the University are distinguishable and thus unhelpful to its cause. See Gaskill v. Ft. Hays State Univ., 31 Kan.App.2d 544, 547, 70 P.3d 693 (2003) (court rejected plaintiff's argument that the university was not a state agency subject to the KJRA and held KJRA was his only remedy for his breach of contract claim; upheld dismissal of action for failure to state a claim because of lack of court jurisdiction); Douglass v. Kansas State University, 22 Kan.App.2d 171, 174, 915 P.2d 782 (1996) (plaintiff brought breach of contract action but only sought declaratory judgment and mandatory injunction compelling the university to appoint him as a tenured professor; court upheld dismissal of petition for failing to state a claim because exclusive remedy was under KJRA and the university was empowered to grant all relief requested).
Because Platt has demonstrated she is entitled to reversal of the dismissal of her petition and remand to the district court for further proceedings, we need not address the panel's alternative grounds for this action. See Keiswetter v. State, 304 Kan. 362, 373, 373 P.3d 803 (2016) (alternate bases for rejecting plaintiff's relief need not be considered by appellate court) (citing cases). Our approach does not mean, however, that the panel's analysis should be considered precedential or persuasive authority.
The judgment of the Court of Appeals is affirmed. The case is remanded to the district court for further proceedings consistent with this opinion.
Stegall, J., not participating.
Michael J. Malone, Senior Judge, assigned.
