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Dominguez v. Davidson


This is an appeal by plaintiff Marshall Dominguez from the trial court's granting of summary judgment in favor of the defendants in a defamation and false light/invasion of privacy case.

The case arises out of a workers compensation case. The defendants are Paul Davidson, plaintiff's former supervisor at the Federal Express Corporation (FedEx), and Jerry Ward, an employee of Alexis, Inc. (Alexis), the workers compensation claims administrator for FedEx. FedEx and Alexis are also named as defendants based on the doctrine of respondeat superior.

Plaintiff was employed by FedEx as a courier for 13 years when he injured his lower back while performing his job duties. Beginning on July 5, 1995, plaintiff was on leave from work due to his work-related injury. He was treated by Dr. Tyann Hamedi, who examined him four times during July. On July 19, 1995, plaintiff informed Dr. Hamedi that he was still experiencing back pain. Dr. Hamedi determined plaintiff was still suffering lower back pain and was not ready to return to work. Dr. Hamedi imposed specific light-duty work restrictions that included lifting up to 30 pounds, pushing or pulling up to 40 pounds, no kneeling or squatting, and limited bending of the back from the waist.

Also on July 19, 1995, plaintiff appeared on television promoting an upcoming baseball game between his men's all-star team and the Colorado Silver Bullets, a women's professional baseball team, to be played at Kauffman Stadium prior to a Kansas City Royals baseball game. Plaintiff attended and participated in two or more practice sessions prior to the game with the Silver Bullets which was held on July 22, 1995. Davidson observed plaintiff warming up, stretching, and playing defense for one-half inning in the July 22 game.

On July 30, 1995, Dr. Hamedi released plaintiff to return to work. Plaintiff was immediately suspended by Davidson for playing baseball while on leave with a work-related back injury without being authorized to do so by his treating physician. On August 5, 1995, plaintiff was terminated from his employment for playing baseball without medical permission while on leave for a work-related injury.

FedEx has an internal appeal process entitled "Guaranteed Fair Treatment Procedure." Plaintiff pursued that appeal process and the decision to terminate his employment was reaffirmed.

This lawsuit followed. Dr. Hamedi was originally named a defendant, and the claims at various times in the suit also included, among others, retaliatory discharge against FedEx and defamation and negligence against Dr. Hamedi. These claims have been dismissed and are not before us on appeal. It should be noted that this is not a wrongful termination or a retaliatory discharge case.

The trial court granted summary judgment against the plaintiff and in favor of the defendants and this appeal followed. Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 60- 256(c). Our standard of review is de novo.

Plaintiff first claims that the trial court used the wrong standard of review when it denied his motion to reconsider, alter, or amend judgment pursuant to K.S.A. 60-259(f). The trial court noted that plaintiff requested the court to reconsider the "issue of malice based upon review of selected facts focusing on plaintiff's termination from employment, rather than the circumstances of the case as a whole." Plaintiff argues that upon a motion for summary judgment, it is not within the province of the trial court to view the circumstances of the case as whole. Rather, such a determination belongs to a jury. Plaintiff c

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