Campbell v. Husky Hogs (updated May 26, 2011)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,458

ROBERT L. CAMPBELL,
Appellant,

v.

HUSKY HOGS, L.L.C.,
Appellee.


SYLLABUS BY THE COURT

1.
Kansas law recognizes the tort of retaliatory discharge when an employee is
terminated for filing a wage claim under the Kansas Wage Payment Act.

2.
The alternative remedies doctrine is a substitution of law concept under which a
federal or state statute can substitute for a state retaliatory discharge claim if the
substituted statute provides an adequate remedy.

3.
The statutory remedies for violating the Kansas Wage Payment Act are not an
adequate substitute remedy for a state retaliatory discharge claim based upon a wage
claim filing because the wage claim redresses a different harm, the statutory
administrative process varies greatly from the judicial process applicable to wrongful
termination, and the statutory damages are limited by the wages wrongly withheld. The
judicial process will better serve the public interest in deterring this type of retaliatory
misconduct.

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Appeal from Phillips District Court; WILLIAM B. ELLIOTT, judge. Opinion filed May 20, 2011.
Reversed and remanded.

Larry G. Michel, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, and Angela
Chesney Herrington, of the same firm, were on the brief for appellant.

Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, was on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: This court considers for the first time whether a common-law tort for
retaliatory discharge may be brought against an employer when an employee claims he or
she was fired for filing a wage claim under the Kansas Wage Payment Act (KWPA),
K.S.A. 44-313 et seq. The district court dismissed the lawsuit because there was no
previously recognized exception to the terminable-at-will doctrine for discharging an
employee for filing a KWPA wage claim. The district court also found there was an
adequate remedy available under that Act. We hold the pleadings state a valid claim for
retaliatory discharge, and the statutory remedies provided by the KWPA are an
insufficient substitute for common-law remedies. As such, we reverse and remand for
further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Robert L. Campbell was an at-will employee with Husky Hogs, L.L.C., for about
1 year when he filed a complaint with the Kansas Department of Labor (KDOL) alleging
Husky Hogs was not paying him as required by the KWPA. Campbell was fired 1
business day after KDOL acknowledged receiving his claim. Campbell filed this lawsuit
in Phillips County District Court alleging Husky Hogs terminated him for pursuing his
statutory rights under the KWPA. Husky Hogs denied the allegation.
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The company also filed a K.S.A. 60-212(b)(6) motion for judgment on the
pleadings. It argued Kansas had not previously recognized a retaliatory discharge claim
for alleging KWPA violations and no public policy reasons existed for allowing such a
claim now. Campbell conceded the legal issue was one of first impression, but he argued
Kansas public policy strongly favors wage earners and compliance with the statutory
mandates, so his claim should qualify as an exception sometimes permitted at common
law.

The district court granted Husky Hogs' motion. It held Campbell's termination did
not violate Kansas public policy, even though it was required to assume the discharge
resulted from filing the disputed wage claim. And the district court sua sponte determined
that even if Campbell had stated a valid common-law retaliatory discharge claim, it was
supplanted by the KWPA because that Act provides Campbell an adequate substitute
remedy. Campbell filed a timely notice of appeal to the Court of Appeals. This court
transferred the case pursuant to K.S.A. 20-3018(c) (transfer on court's own motion).

ANALYSIS

Standard of Review

Whether a district court erred by granting a motion to dismiss for failure to state a
claim is a question of law subject to unlimited review. Ritchie Paving, Inc. v. City of
Deerfield, 275 Kan. 631, 633, 67 P.3d 843 (2003). An appellate court is required to
assume the facts alleged by the plaintiff are true, along with any inferences reasonably
drawn from those facts. The appellate court then decides whether the facts and inferences
state a claim based on the plaintiff's theory or any other possible theory. Bland v. Scott,
279 Kan. 962, 963, 112 P.3d 941 (2005) (quoting McCormick v. Board of Shawnee
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County Comm'rs, 272 Kan. 627, Syl. ¶ 1, 35 P.3d 815 [2001], cert. denied 537 U.S. 841
[2002]).

Exceptions to the employment-at-will doctrine

Kansas historically adheres to the employment-at-will doctrine, which holds that
employees and employers may terminate an employment relationship at any time, for any
reason, unless there is an express or implied contract governing the employment's
duration. Morriss v. Coleman Co., 241 Kan. 501, 510, 738 P.2d 841 (1987). But there are
specific statutory exceptions to this rule, such as terminations based on race, gender, or
disability. See K.S.A. 44-1009 (It is unlawful for an employer to terminate or otherwise
discriminate against a person because of race, religion, color, sex, disability, national
origin, or ancestry or to commit other discriminatory employment practices listed in the
statute.).

There are also exceptions recognized by Kansas courts through our case law. Over
the past 30 years, exceptions to the at-will doctrine created a common-law tort for
retaliatory discharge. These exceptions gradually eroded the general terminable-at-will
rule when an employee is fired in contravention of a recognized state public policy.
Ortega v. IBP, Inc., 255 Kan. 513, 518, 874 P.2d 1188 (1994) ("[I]t is clear that this state
has recognized exceptions to the doctrine of employment-at-will when an employee is
discharged in contravention of public policy."); Anco Constr. Co. v. Freeman, 236 Kan.
626, Syl. ¶ 5, 693 P.2d 1183 (1985) ("When an employee is terminated in violation of
federal public policy, however, no state cause of action is pled.").

To date, this court has endorsed public policy exceptions in four circumstances:
(1) filing a claim under the Kansas Workers Compensation Act, K.S.A. 44-501 et seq; (2)
whistleblowing; (3) filing a claim under the Federal Employers Liability Act (FELA), 45
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U.S.C. § 51 (2006) et seq.; and (4) exercising a public employee's First Amendment right
to free speech on an issue of public concern. Anco Constr. Co., 236 Kan. at 629 (workers
compensation); Palmer v. Brown, 242 Kan. 893, 900, 752 P.2d 685 (1988)
(whistleblowing based on good-faith reporting of coworkers or employers infraction
pertaining to public health and safety); Hysten v. Burlington Northern Santa Fe Ry. Co.,
277 Kan. 551, 561, 108 P.3d 437 (2004) (FELA); Larson v. Ruskowitz, 252 Kan. 963,
974-75, 850 P.2d 253 (1993) (retaliatory discharge claim when a public employee is
terminated for exercising First Amendment rights to free speech on an issue of public
concern); see also Flenker v. Willamette Industries, Inc., 266 Kan. 198, 204, 967 P.2d
295 (1998) (whistleblowing based on good-faith reporting of federal Occupational Safety
and Health Act violations); Coleman v. Safeway Stores, Inc., 242 Kan. 804, 815, 752 P.2d
645 (1988) (employer prohibited from terminating employee because of absence caused
by work-related injury and potential workers compensation claim), overruled on other
grounds by Gonzalez-Centeno v. North Central Kansas Regional Juvenile Detention
Facility, 278 Kan. 427, 101 P.3d 1170 (2004); Cox v. United Technologies, 240 Kan. 95,
Syl., 727 P.2d 456 (1986) (recognizing tort of retaliatory discharge for filing a workers
compensation claim but declining to apply it under specific facts of case), overruled on
other grounds by Coleman, 242 Kan. at 813-15.

Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), was the first
Kansas case recognizing a cause of action for retaliatory discharge. There, plaintiff
alleged he was terminated for claiming workers compensation benefits against his
employer. The Workers Compensation Act did not contain an express provision making
it unlawful to terminate an employee for filing a claim. In fact, the Murphy court noted
the legislature had considered amending the law to explicitly permit a retaliation claim on
two occasions, but neither amendment passed. 6 Kan. App. 2d at 496. Nevertheless, the
Court of Appeals held a strong public policy could be implied from the statutory scheme
and that policy needed protection against job-related retaliation. It noted the Workers
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Compensation Act provided efficient remedies and protections for employees, was
designed to promote the welfare of people in the state, and was the exclusive remedy
available for injured workers. As such, "[t]o allow an employer to coerce employees in
the free exercise of their rights under the act would substantially subvert the purposes of
the act." 6 Kan. App. 2d at 496. Four years later, the Court of Appeals' analysis was
affirmed by this court in Anco Constr. Co., 236 Kan. at 629, and then reaffirmed in
subsequent cases. See Rebarchek v. Farmers Co-op Elevator & Mercantile Ass'n, 272
Kan. 546, 560-62, 35 P.3d 892 (2000); Brown v. United Methodist Homes for the Aged,
249 Kan. 124, 132, 815 P.2d 72 (1991); Coleman, 242 Kan. at 810; Cox, 240 Kan. at 96.

Almost 2 decades after Anco Constr. Co., this court applied the same analysis
recited in Murphy to recognize that a retaliatory discharge claim under FELA was
necessary to protect an employee's exercise of statutory FELA rights. Hysten, 277 Kan. at
561. In Hysten, a railroad employee filed a retaliatory discharge claim alleging the
railroad retaliated against him for filing a tardy claim for work-related injuries. The
railroad argued this was not a valid state law retaliatory discharge claim, but was instead
dependent upon a federal policy. Disagreeing, this court held:

"Regardless of whether FELA or the Kansas Workers Compensation Act supplies the
framework to support an injured worker's pursuit of recovery, the public policy
underlying that framework would be undermined if the worker could be fired for the
exercise of his or her statutory right. Such a situation effectively releases an employer
from the obligation of the statute. [Citation omitted.]" (Emphasis added.) 277 Kan. at
556-57.

The case law 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. As such,
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the first question in analyzing Campbell's claim becomes whether such a state public
policy is found within the KWPA.


The public policy embedded in the KWPA

The parties dispute what authority may be considered when determining whether a
strongly held public policy exists in this state. Husky Hogs argues the legislature must
expressly declare a public policy against retaliatory job actions for filing a wage claim
under the KWPA before Kansas courts may recognize a common-law tort of retaliatory
discharge as an exception to at-will employment. But Campbell argues the test is not so
strict and that public policy has been implied from statutory schemes. Campbell's
argument is consistent with Kansas case law.

We have stated that courts tasked with determining whether a public policy exists
are faced with three situations: (1) The legislature has clearly declared the state's public
policy; (2) the legislature enacted statutory provisions from which public policy may
reasonably be implied, even though it is not directly declared; and (3) the legislature has
neither made a clear statement of public policy nor can it be reasonably implied.
Coleman, 242 Kan. at 808. We also have held that public policy must be clearly declared
by the constitution, statutory enactments, or the courts, and it must be "'so united and so
definite and fixed that its existence is not subject to any substantial doubt.'" Hysten, 277
Kan. at 555 (citing Riddle v. Wal-Mart Stores, Inc., 27 Kan. App. 2d 79, 998 P.2d 114
[2000]). We also have acknowledged that while public policy may be determined by both
the legislature and the courts, courts must respect legislative expressions when
ascertaining whether a public policy exists. Coleman, 242 Kan. at 808.

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As to this question, both parties refer us to the Kansas federal court decision in
Kistler v. Life Care Centers of America, Inc., 620 F. Supp. 1268 (D. Kan. 1985), which
suggested there was an express policy declaration governing a wage-related claim. In
Kistler, the plaintiff alleged retaliatory discharge in federal district court, contending she
was fired for testifying against her employer at an unemployment compensation hearing.
Such hearings are provided for under K.S.A. 44-701 et seq. In determining Kansas public
policy prevented a termination under those circumstances, the court held the legislature
had "strongly expressed a policy against allowing employers to interfere with
unemployment compensation hearings" by enacting K.S.A. 44-615. 620 F. Supp. at 1269.
But the relevant portion of K.S.A. 2010 Supp. 44-615 states:

"It shall be unlawful for any person, firm or corporation to discharge any
employee or to discriminate in any way against any employee because . . . such employee
may testify as a witness before the secretary of labor, or shall sign any complaint or shall
be in any way instrumental in bringing to the attention of the secretary of labor any
matter of controversy between employers and employees as provided herein." (Emphasis
added.)

It is not immediately clear from the statute what provisions of the labor code are
subject to the "as provided herein" language. And since K.S.A. 2010 Supp. 44-615
appears in Article 6 of Chapter 44, one interpretation could be that it applies only to
Article 6 claims. The Kistler court did not address this ambiguity about the statute's scope
but simply assumed K.S.A. 44-615 applied to unemployment compensation hearings,
which arise from Article 7. The court then held that K.S.A. 44-615 was an express
declaration of public policy, so the plaintiff stated a valid retaliatory discharge claim. 620
F.2d at 1269-70. As a secondary holding, the Kistler court also noted that in workers
compensation cases Kansas courts had stressed that a retaliatory discharge claim was
necessary to preserve the purposes of the Workers Compensation Act. Applying this
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same rationale to the facts, the Kistler court held the same was true in the unemployment
compensation case before it. 620 F. Supp. at 1270.

We must decide whether Kistler's extension of K.S.A. 44-615 to an Article 7
unemployment compensation claim as an express legislative statement of public policy
against job retaliation was correct. If so, then there is a strong argument Campbell's
Article 4 claim seeking his unpaid wage is supported by an express legislative statement
of public policy against retaliatory misconduct by employers. The question is whether "as
provided herein" only refers to the Article 6 provisions or applies more broadly to other
articles within Chapter 44. Answering this inquiry requires statutory interpretation, which
is subject to unlimited review. Weber v. Board of Marshall County Comm'rs, 289 Kan.
1166, 1175, 221 P.3d 1094 (2009).

To interpret this statute, we first examine its plain language to ascertain legislative
intent. If the language is not plain and unambiguous, we employ statutory construction or
consult legislative history. In re Tax Exemption Application of Mental Health Ass'n of the
Heartland, 289 Kan. 1209, 1211, 221 P.3d 580 (2009). But the statute's language
provides no clarity to our inquiry, so we consider the statute's history.

K.S.A. 44-615 was enacted in 1920, L. 1920, ch. 29, sec. 15, along with several
other provisions creating a Court of Industrial Relations and conferring certain rights and
duties upon it. L. 1920, ch. 29, secs. 1-30. Its duties were later transferred to the Secretary
of Human Resources (now Secretary of Labor), when subsequent amendments to K.S.A.
44-615 simply changed the governing body from that court to the Secretary. Compare L.
1920, ch. 29, sec. 15 with L. 1976, ch. 370, sec. 33; L. 2004, ch. 179, sec. 32. In other
words, "as provided herein" was originally drafted to apply only to the other provisions
adopted in the same bill from 1920. A comparison of the 1920 enactments to Article 6, L.
1920, ch. 29, secs. 3-28, shows they originally included what is now K.S.A. 44-603
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through K.S.A. 44-628. Notably, neither the unemployment compensation provisions at
issue in Kistler, nor the KWPA at issue in Campbell's case, were part of these 1920
statutory enactments.

Given this history, and with nothing else to guide the analysis, we hold that K.S.A.
2010 Supp. 44-615 does not apply to any provision under any section in Chapter 44,
except Article 6. See Redd v. Kansas Truck Center, 291 Kan. 176, 195, 239 P.3d 66
(2010) (Appellate courts must consider various provisions of an act in pari materia to
reconcile and bring the provisions into workable harmony if possible.). We find Kistler's
reliance on K.S.A. 44-615 misplaced in deciding that the legislature made an express
statement against job retaliation in the context of an unemployment compensation
hearing. But the Kistler court's recognition of a retaliatory discharge claim under Article
7 may still be correct under its secondary holding that public policy may be inferred from
the statutory right. We address next whether Campbell's retaliatory discharge claim may
be implied from the KWPA's statutory scheme. See Hysten, 277 Kan. at 556 ("We are
attempting to discern the breadth and depth underlying public policy.").

The KWPA was enacted in 1973. L. 1973, ch. 204, secs. 1-16. It is an expansive
and comprehensive legislative scheme that is broad in its scope and the rights created for
Kansas workers to secure unpaid wages earned from their labors. See K.S.A. 44-313 et
seq. It is applicable to most Kansas employers. See K.S.A. 44-313(a). It requires, among
various other provisions, that employers promptly pay wages and benefits (K.S.A. 2010
Supp. 44-314; K.S.A. 44-315). It also permits specific damages awards for willful
nonpayment (K.S.A. 44-315); controls and limits wage withholdings (K.S.A. 2010 Supp.
44-319); prohibits waivers of the rights created (K.S.A. 44-321); and mandates that the
Secretary of Labor enforce and administer the KWPA's provisions through administrative
proceedings, compulsory process to compel witness attendance and document
production, and permits application to the district courts for citations in contempt (see
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K.S.A. 44-322; K.S.A. 2010 Supp. 44-322a). The Secretary of Labor is expressly
authorized to adopt such rules and regulations as are deemed necessary to accomplish the
KWPA's purposes. K.S.A. 44-325.

In Burriss v. Northern Assurance Co. of America, 236 Kan. 326, 333, 691 P.2d 10
(1984), cert. denied 474 U.S. 821 (1985), this court commented on the safeguards Kansas
law has extended to wages and benefits earned by its workers, noting:

"Throughout the history of this state, the protection of wages and wage earners has been a
principal objective of many of our laws. See, for example, K.S.A. 60-2307, originally
enacted as G.S. 1868, ch. 38, § 6, providing that otherwise exempt personal property shall
not be exempt from attachment or execution for wages; K.S.A. 44-312, enacted in 1901,
giving preference to the payment of wages in the case of receiverships or assignments for
the benefit of creditors; the statute restricting garnishment of wages, K.S.A. 60-2310,
which reflects the rationale of G.S. 1868, ch. 80, § 490; and the wage payment act,
K.S.A. 44-313 et seq., enacted in 1973. K.S.A. 40-3103, like the statutes mentioned
above, gives preference to wage earners, in order that they and the families dependent
upon them are not destitute."

This language was repeated recently in Coma Corporation v. Kansas Dept. of
Labor, 283 Kan. 625, 644, 154 P.3d 1080 (2007), in recognition of what the Coma court
characterized as "the strong and longtime Kansas public policy of protecting wages and
wage earners." In Coma, we held that denying an undocumented worker access to
KWPA's statutory mechanisms for enforcing an employment contract would "directly
contravene the public policy of the State of Kansas." 283 Kan. at 645.

This court has recognized retaliatory discharge claims in different circumstances,
including those in which employees are discharged for exercising a statutory right.
Hysten, 277 Kan. at 561 (FELA); Anco Constr. Co., 236 Kan. at 629 (workers
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compensation). Campbell's petition, which alleges an adverse job action against him for
pursuing his statutory right to payment of earned but unpaid wages, clearly fits within
this type. And it is meaningful that this statutory right relates to employment because it
dovetails with much of our prior case law. For example in Hysten, which concerned the
railroad employee terminated after filing a FELA claim for a work-related injury, this
court held:

"The design and language of the Kansas Workers Compensation Act and the logic of
Murphy, 6 Kan. App. 2d 488, persuade us that Kansas has a 'thoroughly established'
public policy supporting injured workers' rights to pursue remedies for their on-the-job
injuries and opposing retaliation against them for exercising their rights. It matters not
that the vehicle for that exercise is a federal rather than a state statutory provision." 277
Kan. at 561.

That principle is applicable to the KWPA. We hold the KWPA embeds within its
provisions a public policy of protecting wage earners' rights to their unpaid wages and
benefits. And just as we found a common-law retaliatory discharge claim when an injured
worker is terminated for exercising rights under the Workers Compensation Act, we find
such a cause of action is necessary when an employer fires a worker who seeks to
exercise KWPA rights by filing a wage claim. To do otherwise would seriously
undermine the public policy and the protections afforded by the KWPA. Cf. Hysten, 277
Kan. at 556-57.

Campbell's petition states a claim for relief

Having determined a cause of action exists for retaliatory discharge based on the
pursuit of a wage claim under the KWPA, we must next consider whether Campbell
states such a claim. In his petition, Campbell alleges: (1) He filed a complaint with the
KDOL alleging he was not being paid properly under the KWPA; (2) Husky Hogs
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terminated him after he filed the complaint only 1 business day after Campbell received
acknowledgement that his complaint was filed; (3) the termination was in retaliation for
filing the complaint with the KDOL; (4) Campbell suffered damages, including lost
wages, as a result of being terminated; and (5) his termination violated an important
public policy under Kansas law. We resolved the public policy factor above.

In Rebarchek, this court held that the elements for a prima facie claim for
retaliatory discharge for filing a workers compensation claim are: (1) The plaintiff filed a
claim for workers compensation benefits or sustained an injury for which he or she might
assert a future claim for such benefits; (2) the employer had knowledge of the plaintiff's
workers compensation claim injury; (3) the employer terminated the plaintiff's
employment; and (4) a causal connection existed between the protected activity or injury
and the termination. 272 Kan. at 554.

As noted above, in reviewing a dismissal under K.S.A. 60-212(b)(6), appellate
courts assume the facts alleged by plaintiff are true, along with any inferences reasonably
drawn from them. Bland, 279 Kan. at 963. Given the similarities between alleging
retaliatory discharge for filing a workers compensation claim and filing a KWPA claim,
we find the allegations stated by Campbell sufficient to avoid dismissal at this early stage
in the proceedings under our standard of review.

KWPA provides an inadequate substitute remedy

In addition to finding Campbell had not stated a claim upon which relief may be
granted, the district court sua sponte held that the remedies available for violating the
KWPA provided an adequate substitute remedy for Campbell's common-law retaliatory
discharge claim and dismissed the case on that alternative basis. Campbell disagrees,
arguing the KWPA can only address his wage claim and noting the common-law
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remedies traditionally available for a wrongful termination claim, including punitive
damages, are not permitted in the administrative action before the Secretary.

Under the alternative remedies doctrine, a state or federal statute could be
substituted for a state retaliation claim—if the substituted statute provides an adequate
alternative remedy. Hysten, 277 Kan. at 561; Flenker, 266 Kan. at 202-03. Therefore, the
issue is whether the statutory remedy under the KWPA is adequate and thereby precludes
the common-law remedy sought by Campbell.

In Hysten, when deciding whether FELA provided an adequate substitute remedy
for the plaintiff's retaliatory discharge claim, this court examined whether the FELA and
common-law actions were subject to the same procedures, allowed similar levels of
claimant control, and made available the same damages. 277 Kan. at 562-64. We stated:

"We also do not regard the unavailability of compensatory damages for pain and
suffering and punitive damages as trivial. As we recognized in Coleman, a retaliatory
discharge action, such as the one Hysten brings here, is designed to redress a violation of
state public policy. [Citation omitted.] The availability of compensatory damages beyond
those designed to eliminate purely economic loss and particularly the availability of
punitive damages can deter such violations. As Judge Posner said: 'It is a grave matter for
an employer to fire an employee for exercising a legal right.' [Citation omitted.]
Deterrence of such conduct is essential." 277 Kan. at 563.

Similarly, the disparate processes and dissimilar remedies make it untenable to
find the KWPA claim is an adequate substitute remedy for Campbell's common-law
retaliatory discharge claim. First, as discussed above, the district court's holding is
problematic because the wage claim redresses a different harm. The KWPA action and its
statutory remedies relate to Campbell's claim that Husky Hogs did not pay him all earned
wages. But the retaliatory discharge claim would redress the employment termination.
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Since these causes do not address the same wrong, it is difficult to conclude the
legislature supplanted the retaliatory discharge claim with KWPA.

But just as importantly, Campbell does not receive the same process under his
KWPA claim as he would in litigating the wrongful termination claim. KWPA permits
the Secretary of Labor to hold hearings and investigate alleged violations of the act.
K.S.A. 44-322; K.S.A. 2010 Supp. 44-322a. The Secretary or presiding officer
determines whether the unpaid wage claim is valid, how much the employer owes in
unpaid wages, assesses applicable damages, and may seek a contempt order in district
court if the employer refuses to obey the Secretary's order. K.S.A. 44-322; K.S.A. 2010
Supp. 44-322a. But neither party in an administrative action has a right to a jury trial and
the Secretary has considerable statutory discretion both to determine whether a dispute
exists and to control the investigation of that dispute. See K.S.A. 44-322; K.S.A. 2010
Supp. 44-322a. Regarding damages under the KWPA, the Secretary has authority to
award the unpaid wages and damages for willful nonpayment, but they are limited to 1
percent of the unpaid wages for each day payment is not submitted up to 100 percent of
the unpaid wages. K.S.A. 44-315.

While these statutory remedies may adequately compensate Campbell for his
unpaid wage claim, it is difficult to see how they adequately compensate him for
wrongful termination or provide a better deterrent for the retaliatory misconduct alleged.
Retaliatory discharge is a tort. A tort is a breach of duty imposed by law. Under common
law, Campbell may seek future lost wages, any other actual damages, and applicable
remedies for pain and suffering, as well as punitive damages. See Hysten, 277 Kan. at
563.


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This court has previously criticized the allocation of a common-law action to an
administrative agency. See Hysten, 277 Kan. at 562; Flenker, 266 Kan. at 208-10;
Coleman, 242 Kan. at 813-14. In this case, we hold the KWPA is not an adequate
substitute remedy for Campbell's common-law retaliatory discharge claim. The district
court erred in so finding.

Reversed and remanded for further proceedings.