Palmerin v. Johnson County, Kansas Board of County Commissioners

FILED
United States Court of Appeals
Tenth Circuit
April 24, 2013
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
PAUL PALMERIN,
Plaintiff - Appellant,
No. 11-3386
v.
(D.C. No. 09-CV-02579-CM)
(D. Kan.)
JOHNSON COUNTY, KANSAS
BOARD OF COUNTY
COMMISSIONERS,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and GORSUCH, Circuit Judges.
Johnson County says it fired Paul Palmerin for using a racial slur when
referring to his coworkers. Mr. Palmerin says this was really just pretext, that
the County wanted to get rid of him for reporting wrongdoing by his coworkers.
In his complaint, Mr. Palmerin brought a variety of federal and state claims but by
trial only a state law retaliation claim remained — and after trial the district court
granted the County judgment on that claim too. On appeal Mr. Palmerin
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
challenges only this final ruling but it is one, in the end, we find hard to fault.
While Mr. Palmerin was an at-will employee, Kansas protected him as a
matter of public policy from being terminated “for the good faith reporting of a
serious infraction of . . . . rules, regulations, or the law pertaining to public health,
safety, and the general welfare.” Palmer v. Brown, 752 P.2d 685, 689-90 (Kan.
1988). Mr. Palmerin says he reported a number of infractions along these lines
but we focus our attention on two examples which Mr. Palmerin picked as his best
at oral argument and which suffice to illustrate why we believe we must affirm.
The first concerns hard hats. Mr. Palmerin claims one of his coworkers,
Kevin Boggs, refused to wear a hard hat at a construction site and he (Mr.
Palmerin) reported as much to his superiors. Even taking all this as true,
however, we are unclear how Mr. Palmerin’s complaint implicated a rule,
regulation, or the law pertaining to public health, safety, and the general welfare.
Mr. Palmerin suggests Mr. Boggs’s failure to wear a hard hat violated OSHA
regulations, but the County replies that local governmental entities are generally
exempt from OSHA regulations (see 29 U.S.C. § 652(5)), and to this Mr. Palmerin
offers no rejoinder.
Instead Mr. Palmerin retreats, suggesting that at the very least Mr. Boggs’s
failure to wear a hard hat violated policies set forth in the County’s employee
safety manual. The difficulty here is that Kansas has already held a private
employer’s “internal policies and guidelines” generally do not qualify as “rules,
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regulations, or the law pertaining to public health, safety, and the general
welfare.” See Herman v. Western Financial Corp., 869 P.2d 696, 704-05 (Kan.
1994). Neither do we see how the result might change when the employer
happens to be a public rather than private entity. Internal policies directed solely
at employees no more automatically concern public health, safety, and the general
welfare when adopted by a public employer than when adopted by a private one.
Indeed, the policy at issue here clearly sought to protect the safety of County
employees, not County citizens generally. It is well accepted in other areas of
law that a state stands in very different shoes when acting more like a private
employer than in its sovereign capacity. See, e.g., Garcetti v. Ceballos, 547 U.S.
410 (2006) (discussing public employee retaliation claims in the First Amendment
context). The same general principle applies here.
The second incident concerns a tire changing machine. This time Mr.
Palmerin reported Mr. Boggs for using a County tire machine when working on
his own cars during his time off. Mr. Palmerin says this incident, if not the hard
hat incident, surely implicated a law pertaining to public health, safety, and the
general welfare because it involved the criminal deprivation of property, a
violation of the Kansas code. See Kan. Stat. Ann. § 21-5803.
But even assuming (without deciding) that the conduct Mr. Palmerin
reported indeed violated a Kansas law pertaining to public health, safety, or the
general welfare, a last and insurmountable hurdle still remains. As he
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acknowledged at oral argument, Kansas protects only the reporting of serious
violations of rules, regulations or laws involving public health, safety, and the
general welfare. See also Palmer, 752 P.2d at 690. The reason for this
seriousness requirement no doubt arises from a desire to balance two competing
public policy interests — the interest in preserving at-will employment and the
interest in encouraging employees to report lawlessness — and the realization that
public policy isn’t advanced so much by protecting from dismissal employees
who report trivia as it is by protecting those who unearth consequential
wrongdoing. Though Kansas has yet to define the exact parameters of its
seriousness requirement, other states have suggested that their own parallel
provisions protect only employees who report violations of rules, regulations, and
laws that courts would not let the parties “nullify” by their own agreement, Ryan
v. Dan’s Food Stores, Inc., 972 P.2d 395, 405-06 (Utah 1998), because their
significance is “so substantial and fundamental that there can be virtually no
question as to their importance for promotion of the public good,” Rackley v.
Fairview Care Ctrs., Inc., 23 P.3d 1022, 1027 (Utah 2001).
Confident that Kansas’s seriousness requirement entails a more or less
similar sort of screening function, we agree with the district court that Mr.
Palmerin’s tire changing machine claim must fail. From the record we have, it is
unclear exactly how often Mr. Boggs used County property but a few things are
clear: no damage was done, County policy permitted employees to make de
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minimis use of its property for their personal projects, Mr. Boggs’s supervisor
expressly granted him permission to make use of the tire changing machine, no
one was ever reported to criminal authorities let alone prosecuted for theft, and it
seems Mr. Palmerin at the time thought only an infraction of the internal County
policy was involved (though, of course, he later argued in court a criminal law
might apply too). It very well may be that Mr. Boggs’s usage was more than de
minimis as the County itself found, but given all these facts it’s difficult to see
how Mr. Boggs’s conduct went so far that the County could not have “nullif[ied]”
any potential claim of wrongdoing “by [its] own agreement.” Put differently, Mr.
Boggs might have exceeded the de minimis use policy but he did so by so little
that we cannot say the failure to rectify it would have amounted to “so substantial
and fundamental” a problem “that there can be virtually no question as to [the
policy’s] importance for promotion of the public good.” Rackley, 23 P.3d at
1027.
Our holding on this score finds many analogs in states with retaliation laws
similar to Kansas’s. See, e.g., Harris v. City of St. Louis, No. 10-CV-1392, 2011
WL 1885387, at *5 (E.D. Mo. May 18, 2011) (similar allegations do not “qualify
as serious misconduct”); Link v. K-Mart Corp., 689 F. Supp. 982, 985 (W.D. Mo.
1988); Fox v. MCI Commc’ns Corp., 931 P.2d 857, 861-62 (Utah 1997). For his
part, Mr. Palmerin replies that we should follow a different line of cases from
courts that have allowed retaliation claims for reporting minor cases of theft. See
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Palmateer v. Int’l Harvester Co., 421 N.E.2d 876, 880 (Ill. 1981). But it does not
appear retaliatory discharge cases in those states contain a seriousness
requirement, see Turner v. Mem’l Med. Ctr., 911 N.E.2d 369, 374 (Ill. 2009), so
we do not see how we might.
Having said that much, we take care to emphasize what we do not say. We
do not mean to suggest a violation of a de minimis use policy in some more
aggravated fashion would fail to qualify for protection. Neither do we mean to
identify some definitive and quantitative monetary threshold that must be met
before Kansas’s retaliation law comes into play when reporting cases of theft.
Instead, we suggest only that on the facts presented it is difficult to conclude that
there is “virtually no question” about the importance of the reported issue “for
promotion of the public good.”
Approaching the case from a different angle, Mr. Palmerin argues the
County did not properly preserve its arguments in the district court. He notes that
a party generally may not move for judgment after trial under Rule 50(b) unless it
first moved for judgment as a matter of law under Rule 50(a) before the case was
submitted to the jury. See Fed. R. Civ. P. 50(a) & (b). In this case, however, the
County did move for judgment as a matter of law before the jury retired and thus
did preserve the ability to pursue a motion for judgment after trial.
Mr. Palmerin acknowledges this but says the County’s Rule 50(a) motion
failed to specify which particular element of the retaliation claim the County
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sought judgment on. And this failing, he says, is fatal to the County’s ability to
pursue a post-judgment Rule 50(b) motion along the lines it did. The district
court, however, clearly understood the County’s Rule 50(a) motion as challenging
(and thus preserving a later Rule 50(b) challenge to) all elements of the retaliation
claim and we see no basis for faulting its understanding. After all, “technical
precision” is not required in Rule 50(a) motions; instead, we “liberally construe[]
[a] party’s motion,” requiring only that the party adequately notify the court of
the issues it is raising, something the district court plainly thought happened here.
Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1114 (10th Cir. 2005). Besides,
during the post-judgment Rule 50(b) proceeding in district court Mr. Palmerin
himself failed to raise any complaint about the sufficiency of the County’s Rule
50(a) motion to preserve the arguments it wished pursued for judgment after trial.
And under our case law Mr. Palmerin’s failure to do so was itself enough to
forfeit his complaint. See Therrien v. Target Corp., 617 F.3d 1242, 1250 n.2
(10th Cir. 2010).
Finally, Mr. Palmerin complains about the district court’s evidentiary
rulings at trial. The court did sustain a number of objections to questions that
called for hearsay or a non-responsive answer. It also sustained other objections
related to leading questions, misstated evidence, and the like. But at least in those
few rulings Mr. Palmerin’s appellate briefs identify and discuss in enough detail
to permit our review, see 10th Cir. R. 28.1, we can discern nothing that rises to
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the level of a reversible abuse of discretion.
The district court’s judgment is affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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