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Rebarchek v. Farmers Cooperative Elevator12/7/2001
Review of the judgment of the Court of Appeals in 28 Kan. App. 2d 104, 13 P.3d 17 (2000). Appeal from Lane district court. J. BYRON MEEKS, judge. Judgment of the Court of Appeals reversing the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part and reversed in part, and the case is remanded.
Larry L. Rebarchek filed suit against his former employer, Farmers Cooperative Elevator and Mercantile Association (Farmers), and supervisor, Floyd G. Barber, alleging retaliatory discharge for the filing of a workers compensation claim. The district court granted summary judgment in favor of Farmers and Barber, and Rebarchek appealed. The Court of Appeals reversed and remanded for trial. Rebarchek v. Farmers Co-op Elevator & Mercantile Ass'n., 28 Kan. App. 2d 104, 13 P.3d 17 (2000). This court granted defendants/appellees' petition for review.
Farmers operates five elevator and grain storage and handling facilities. Rebarchek began his employment with Farmers in September 1979. In 1983, he fell approximately 60 feet and was seriously injured when the rigging broke as he cleaned the inside of one of Farmers' bins. Rebarchek became branch manager of the Shields, Kansas, facility in July 1986. The Shields facility had six silos with a 665,000 bushel capacity. Rebarchek supervised one employee, Robert Mudd. Rebarchek was responsible for receiving grain at harvest time, maintaining the quality of stored grain, and loading out the grain when it was sold.
Early in 1994, Rebarchek began experiencing recurring back problems for which he sought medical treatment. He was seen on January 18, 1994, by a physician in Dighton, Kansas. In the spring and summer of 1994, he was treated by an orthopedic specialist in Wichita. He was absent from work for an extended period in September 1994. On September 27, 1994, he gave an oral report to Farmers that he had injured his back on January 17, 1994. On November 11, 1994, he gave his employer written notice of a workers compensation claim based on the January 17, 1994, back injury. Reports of the Dighton and Wichita doctors were filed on November 9 and 15, 1994.
On November 16, 1994, Rebarchek told Farmers' secretary that he reinjured his back, Barber was advised on November 17, 1994, and the Form A Employers' Accident Report was made by Farmers the following day. Rebarchek lost no time from work as a result of the November 16 reinjury.
Rebarchek and other Farmers employees drove company pickup trucks to and from work. At the end of the workday on Thursday, November 17, 1994, Barber told Mudd to drive Rebarchek home. He told Rebarchek he could no longer drive the manual transmission company pickup truck assigned for his use. Barber said that he did not want Rebarchek to reinjure his back using the manual transmission. On Friday morning, November 18, Barber announced to all employees that company vehicles could no longer be used for personal business or for commuting to work.
On Monday, November 21, 1994, Barber sent Rebarchek to work at the Alamota facility. The same day he received a letter faxed from Rebarchek's attorney alleging that the reassignment was retaliatory. After receiving the letter, Barber was quite angry. Barber believed that it was on the day he received the faxed letter that he impulsively followed Rebarchek home. Barber was upset and angry. Rebarchek testified that "at his home, Barber told him he was 'tired of getting nasty letters' from Rebarchek's attorney and accused him of shipping out 'bad grain.'" 28 Kan. App. 2d at 107.
Barber returned Rebarchek to his position at the Shields facility on Tuesday, November 22, 1994. Rebarche
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