                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUL 20 1998
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 PASCUAL R. RODRIGUEZ,

              Plaintiff-Appellant,

 v.                                                     No. 96-3159
                                                  (D.C. No. 94-1168-JTM)
 IBP, INC.,                                              (D. Kan.)

              Defendant-Appellee.


                          ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

      Plaintiff Pascual R. Rodriguez brought this diversity action against IBP,

Inc., contending he was terminated in retaliation for seeking workers’

compensation benefits. The district court granted summary judgment in IBP’s


      *
        This order and judgment is not binding precedent, except under the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.
favor, and Rodriguez appeals. We reverse and remand because there are disputed

issues of material fact.

      Rodriguez began working at IBP’s Garden City, Kansas, plant in 1985,

holding a number of different jobs over the years. Prior to 1992, no disciplinary

actions had been taken against him, and his work was satisfactory. In April 1990,

while performing his regular work operating a wizard knife to cut meat from

heads, he was hit in the elbow by a bucket of meat. He reported the accident to

his supervisor, and a week later he was examined by a doctor, who released him

to return to work with the restriction that he should not lift more than twenty

pounds with the affected arm. Rodriguez was not able to return to his regular job,

and until January 1992, he was allowed to work in a variety of generally light

work jobs. While during this period IBP assigned him jobs that he felt he was

physically unable to do, IBP apparently reassigned him to lighter work on his

request.

      In January 1991, Rodriguez, through an attorney, informed IBP he was

claiming entitlement to workers’ compensation as a result of the April 1990

accident. In April 1991, he filed an application for hearing with the Kansas

workers’ compensation division. (The record does not contain further

information indicating whether this hearing was held, or whether Rodriguez was

successful in seeking benefits.)


                                         -2-
      On Friday, January 24, 1992, Rodriguez told the plant personnel manager,

Doug Bolton, that he could not do any of the jobs assigned to him or his regular

job and he asked to be placed in several lighter duty jobs. Bolton offered him

jobs Bolton believed he could perform, but they were apparently not jobs

Rodriguez had requested. Bolton told him that if he was unable to do these jobs,

he could go home until he felt able to work, but that he would not be paid for the

time at home. Additionally, Rodriguez was to call in every day before his shift

began if he was not working that day. Rodriguez decided to go home because he

could not do the work offered, and Bolton said, “I’ll hear from you Monday.”

Rodriguez did not call in his absence the next day, a Saturday, but he called in

that Monday and every other work day until April 7, 1992. On April 7, Rodriguez

returned to work, but after working several hours at what he described as fairly

heavy work, he decided he could not continue. He informed a personnel office

employee, Minh Duong, that he could not work and was told he could go home

without pay but was again to call in every day he did not work. IBP records

indicate he failed to call in his absences on May 1 and May 4, 1992. According

to Rodriguez, however, he called in both days. Combined with the prior Saturday

absence, Rodriguez had three unexcused or “no-call” absences within a year,

grounds for termination under IBP policy. Rodriguez’ employment was

terminated effective May 14, 1992.


                                         -3-
       Rodriguez brought this action contending, inter alia, that his termination

violated Kansas law because IBP discharged him in retaliation for filing a

workers’ compensation claim. On motions for summary judgment, the district

court concluded Rodriguez had not met his burden of showing a prima facie case

of retaliatory discharge by clear and convincing evidence because he could not

show a causal relationship between his workers’ compensation claim and his

discharge. Additionally, the court held because Rodriguez was unable to work at

the time he was terminated, IBP was not prohibited from terminating him under

Kansas law prohibiting termination of employees absent due to work-related

injuries.

       Rodriguez contends several genuine issues of material fact remain,

precluding summary judgment. We review the district court’s grant of summary

judgment de novo. See Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.

1995). Applying the same legal standard used by the district court pursuant to

Fed. R. Civ. P. 56(c), we examine the factual record and the reasonable inferences

therefrom in the light most favorable to Rodriguez, the nonmovant, and determine

whether any genuine issue of material fact is in dispute. Id. If there is no factual

dispute, we determine whether the district court correctly applied the substantive

law. Id.




                                         -4-
      Under Kansas law, the employment-at-will doctrine generally governs the

employer-employee relationship; that is, absent a contract between the employer

and employee covering the duration of employment, the employment is terminable

at the will of either party. See Morriss v. Coleman Co., 738 P.2d 841, 847 (Kan.

1987). This means an “employer may discharge his ‘at-will employee’ for good

cause, for no cause, or even for a wrong cause, without incurring liability to the

employee for wrongful discharge.” Ortega v. IBP, Inc., 874 P.2d 1188, 1191

(Kan. 1994) (quoting Morriss, 738 P.2d at 846). The only exceptions to this

doctrine are based on public policy. See Dickens v. Snodgrass, Dunlap & Co.,

872 P.2d 252, 262 (Kan. 1994). The exception relevant here, first announced in

Murphy v. City of Topeka-Shawnee County Dep’t of Labor Servs., 630 P.2d 186

(Kan. App. 1981), prohibits an employer from discharging an employee for filing

a workers’ compensation claim. See Ortega, 874 P.2d at 1191. This tort of

retaliatory discharge has been expanded to prohibit an employer from

“‘discharg[ing] an employee for being absent or failing to call in an anticipated

absence as the result of a work-related injury’” on the basis that it would

“‘allow[] an employer to indirectly fire an employee for filing a workers’

compensation claim.’” Id. (quoting Coleman v. Safeway Stores, Inc., 752 P.2d

645, 652 (Kan. 1988)). See Pilcher v. Bd. of County Comm’rs, 787 P.2d 1204,

1210-11 (Kan. App. 1990).


                                         -5-
      Rodriguez contends evidence that IBP terminated him while he was absent

due to a work-related injury demonstrates retaliation for his filing a workers’

compensation claim sufficiently to withstand summary judgment. The parties

dispute how Coleman should be applied in this case. IBP contends Coleman does

not apply to this situation because Rodriguez had a medical release to return to

work. It argues under Coleman, only absences caused by work-related injuries

should not be counted against the employee and Rodriguez’s medical release

proves his injury did not cause his absence. While we agree with IBP that

Coleman requires absences to be caused by a work-related injury, we do not agree

that as a matter of law, a medical release proves a subsequent absence is not the

result of a work-related injury. Rodriguez testified his injury caused his absences

and IBP personnel admitted they knew he was absent because he claimed his

work-related injury prevented him from working. Thus, there is a factual dispute

regarding the cause of Rodriguez’s absences that cannot be resolved on the

summary judgment record before us.

      IBP contends Rodriguez’ violation of its neutral absenteeism policy by

accumulating three unexcused absences and not his workers’ compensation claim

was the reason for his discharge. However, Rodriguez testified in his deposition

that he called in on two of the three days in question and he did not call in the

other day, a Saturday, because he left work early on Friday due to pain from his


                                          -6-
injury and his supervisor told him to call in on the following Monday. Whether

Rodriguez violated the policy is a disputed question of fact. Moreover, IBP’s

argument is flawed because Coleman prohibits terminating an employee for

failing to call in anticipated absences due to a work-related injury because that

would allow an employer to indirectly fire an employee for filing a workers’

compensation claim. Coleman, 752 P.2d at 652. As in Coleman, IBP knew why

Rodriguez was absent. 1 We conclude therefore that under Coleman, IBP’s stated

reason for discharging Rodriguez violates Kansas public policy.

      IBP also contends, and the district court held, that Coleman should not

apply here because the evidence did not show Rodriguez was able to return to

work. Coleman does not prohibit the discharge of an employee who is unable to

perform his or her work at the time of discharge, even if the inability to work was

due to a work-related injury. See Rowland v. Val-Agri, Inc., 766 P.2d 819, 822

(Kan. App. 1988). An employer should not be prohibited from discharging an

employee who has already been compensated for a permanently and completely



      1
              In Coleman, the court found the employer’s failure-to-call-in
argument particularly unpersuasive because a company physician had been
treating the employee and providing reports to the employer. See 752 P.2d at
652. The facts here are not as compelling: Rodriguez had a medical release to
return to work. But we think the critical issue is whether the employer knew the
employee was absent due to a work-related injury. IBP knew Rodriguez claimed
his work-related injury prevented him from doing the work IBP offered and that
was why he was absent.

                                         -7-
disabling injury. See id. at 822. Nevertheless, summary judgment is

inappropriate because there was conflicting evidence regarding whether

Rodriguez could return to work.

      Somewhat ironically, IBP’s position on this issue now is the opposite of its

position at the time of discharge and earlier in this litigation. According to the

testimony of personnel manager Bolton and IBP’s responses to interrogatories,

Rodriguez was capable of returning to work because he had a medical discharge,

and he was not discharged for being unable to work. See, e.g., Appellant’s App.

at 25-27, 109. On the other hand, at the time of discharge Rodriguez was not

working and refused to work in a position that IBP contends was within his

medical restrictions. Although Rodriguez’ testimony was ambiguous as to

whether he could perform his regular job at the time of termination, see id. at 80-

81, he testified he could perform a number of other jobs that he contends he knew

from his experience working at the plant were available but which IBP refused to

assign to him, see id. at 96-99. Drawing reasonable inferences in Rodriguez’s

favor, we conclude whether he was able to return to work at the time of his

discharge is a disputed factual issue precluding summary judgment.




                                          -8-
     The judgment of the district court is REVERSED and this case is

REMANDED for further proceedings consistent with this opinion.



                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




                                     -9-
