Pfeifer v. Federal Express Corporation

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 107,133

CYNTHIA PFEIFER,
Plaintiff,

v.

FEDERAL EXPRESS CORPORATION,
Defendant.


SYLLABUS BY THE COURT

1.
The Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq.,
authorizes the Kansas Supreme Court to answer questions from courts of other
jurisdictions when a response may be determinative of a case pending in that jurisdiction
and there is no controlling Kansas precedent.

2.
Kansas has long adhered to the employment-at-will doctrine, which means
employment is terminable at the will of either the employer or the employee. But there
are exceptions to that doctrine when an employee is terminated in violation of public
policy.

3.
One exception to the employment-at-will doctrine exists when an employer
retaliates against an injured worker for exercising the employee's rights under the Kansas
Workers Compensation Act, K.S.A. 44-501 et seq. In such cases, a common-law tort for
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retaliatory discharge is recognized to protect the employee's exercise of those statutory
rights and the public policy underlying them.

4.
The 2-year statute of limitations stated in K.S.A. 60-513(a)(4) applies to a
common-law retaliatory discharge claim.

5.
A contractual provision in an employment agreement that shortens the 2-year
statute of limitations for filing a common-law retaliatory discharge claim based on the
employee's exercise of statutory rights under the Workers Compensation Act is void as
against public policy.

On certification of questions of law from the United States Court of Appeals for the Tenth
Circuit, BOBBY R. BALDOCK, certifying judge. Opinion filed June 7, 2013. The questions certified are
determined.

George A. Barton, of Law Offices of George A. Barton, P.C., of Kansas City, Missouri, argued
the cause, and Robert G. Harken, of the same firm, was on the brief for plaintiff.

Terrence O. Reed, of Memphis, Tennessee, argued the cause, and Richard A. Olmstead, of Kutak
Rock LLP, of Wichita, was on the brief for defendant.

The opinion of the court was delivered by

BILES, J.: The issue presented is lodged squarely between two long-standing
public policy interests that are at odds in this case. One concerns the protections afforded
injured workers against retaliatory discharge when exercising statutory workers
compensation rights. The other is the freedom to contract. This controversy comes to us
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from the United States Court of Appeals for the Tenth Circuit under the Uniform
Certification of Questions of Law Act, K.S.A. 60-3201 et seq., which authorizes this
court to answer questions from other courts when that response may be determinative of a
pending case and there is no controlling Kansas precedent.

The Tenth Circuit is considering a retaliatory discharge claim brought by Cynthia
Pfeifer against her former employer, Federal Express Corporation (FedEx). She filed her
lawsuit 15 months after she was fired, alleging she was terminated for exercising her
rights as an injured worker under the Kansas Workers Compensation Act, K.S.A. 44-501
et seq. Kansas law provides a 2-year statute of limitations for such claims. K.S.A. 60-
513(a)(4) (action for injury to rights of another); Burnett v. Southwestern Bell Telephone,
283 Kan. 134, 144, 151 P.3d 837 (2007) (recognizing a 2-year limitations period for
retaliatory discharge).

But FedEx argues Pfeifer's employment contract required her to file suit within 6
months of her termination. The federal district court agreed with FedEx and granted
summary judgment. Pfeifer v. Federal Exp. Corp., 818 F. Supp. 2d 1287 (D. Kan. 2011).
Pfeifer appealed. The certified questions and our responses are:

1. Does Kansas law, specifically K.S.A. 60-501 and/or public policy, prohibit
private parties from contractually shortening the generally applicable statute of
limitations for an action?

Our answer: K.S.A. 60-501 contains no express or implied prohibition against
contractual agreements limiting the time in which to sue. But the public policy
recognizing that injured workers should be protected from retaliation when
exercising rights under the Workers Compensation Act, K.S.A. 44-501 et seq.,
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invalidates the contractual provision at issue because it impairs enforcement of
that protection.

2. If no such prohibition exists, is the 6-month limitations period agreed to by the
private parties in this action unreasonable?

Our answer: Because we hold the contract provision at issue is void, it is
unnecessary to consider whether its 6-month term is reasonable.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are set forth in the Tenth Circuit's certification order:

"Plaintiff Cynthia Pfeifer filed this diversity action against Defendant Federal
Express Corporation in the District of Kansas. Plaintiff alleged that Defendant retaliated
against her for receiving workers compensation benefits by terminating her employment.
Plaintiff's employment agreement contained a provision requiring all claims against
Defendant to be brought within 'the time prescribed by law or 6 months from the date of
the event forming the basis of [Plaintiff's] lawsuit, whichever expires first.' Defendant
terminated Plaintiff's employment on May 2, 2008. Plaintiff filed this suit 15 months
later, within the applicable statutory statute of limitations of 24 months, but outside her
employment agreement's six month limitation."

Notably, Pfeifer does not allege the contractual provision at issue is
unconscionable, the product of unequal bargaining power, or that the agreement was an
adhesion contract. We do not address what impact, if any, such allegations might play in
another case of this type.

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DISCUSSION

We are asked to determine whether Kansas law prohibits private parties from
contractually shortening the statute of limitations for retaliatory discharge when the
employee claims she was fired for exercising her rights under the Kansas Workers
Compensation Act. This question requires interpretation of the parties' contract, as well
as interpretation of the statutory language in K.S.A. 60-501. Both issues are subject to
unlimited review by this court. See Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289
Kan. 891, 900, 220 P.3d 333 (2009) (interpretation and legal effect of a written contract
are matters of law over which an appellate court has unlimited review); Unruh v. Purina
Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009) (Statutory interpretation is a question
of law over which this court has unlimited review.). We begin with the language used in
Pfeifer's employment contract, assigning the words used their plain and ordinary
meaning. See First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998)
(contract considered in the sense and meaning of the terms used).

The relevant portion of Pfeifer's contract states that "to the extent law allows an
employee to bring legal action against Federal Express, I agree to bring that complaint
within the time prescribed by law or 6 months from the date of the event forming the
basis of my lawsuit, whichever expires first." (Emphasis added.) There is no dispute the
plain language of this provision obligated Pfeifer to bring her lawsuit for retaliatory
discharge within 6 months of her termination—the shorter period between the 2-year
statute of limitations allowed by K.S.A. 60-513(a)(4) and the contract.

We are certainly not the first forum to consider disputes regarding the FedEx 6-
month limitation in its employment contracts. And there is a split of authority on whether
to uphold the provision. See, e.g., Boaz v. Federal Exp. Corp., 742 F. Supp. 2d 925, 932-
33 (W.D. Tenn. 2010) (Fair Labor Standards Act can be abridged by contractual
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limitations; 6-month limitation reasonable); Ray v. FedEx Corporate Services, Inc., 668
F. Supp. 2d 1063, 1067-68 (W.D. Tenn. 2009) (statutes of limitations are procedural, and
nothing in the Older Workers Benefit Protection Act applies to preclude procedural
contractual modifications to the limitations period); Grosso v. Federal Exp. Corp., 467 F.
Supp. 2d 449, 455-57 (E.D. Pa. 2006) ( 6-month contractual agreement unreasonable and
unenforceable with regard to FMLA retaliation claims); Badgett v. Federal Express
Corp., 378 F. Supp. 2d 613, 622-26 (M.D. N.C. 2005) (retaliation for exercising FMLA
rights claim barred under contractually shortened limitations period of 6 months);
Reynolds v. Federal Exp. Corp., No. 09-2692-STA-cgc, 2012 WL 1107834, at *12 (W.D.
Tenn. 2012) (unpublished opinion) (agreement "smacks of oppression," but because
plaintiff failed to establish it was an adhesion contract, court held it was not one and that
its limitations period was reasonable); Plitsas v. Federal Exp., Inc., No. 07-5439, 2010
WL 1644056, at *3-6 (D. N.J. 2010) (unpublished opinion) (Family and Medical Leave
Act [FMLA] regulations prevent employers from interfering with employees' rights;
contractual limitation is restraint on access to employees' rights); Allen v. Federal
Express Corp., No. 1:09 cv 17, 2009 WL 3234699, at *4-5 (M.D. N.C. 2009)
(unpublished opinion) (6-month contractual modification to the limitations period did not
violate state or federal law and was reasonable).

Pfeifer argues she should not be held to the shorter 6-month contractual period
because it violates public policy. This is an issue of first impression in Kansas
implicating both the statute setting the ground rules for statutes of limitations, as well as
the public policy underlying our caselaw recognizing a common-law cause of action for
retaliatory discharge when exercising workers compensation rights. It also rests
temptingly alongside our caselaw extolling the paramount importance of the freedom to
contract—a freedom not to be interfered with lightly. Idbeis v. Wichita Surgical
Specialists, P.A., 279 Kan. 755, 770, 112 P.3d 81 (2005). We address the statute first.

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K.S.A. 60-501

K.S.A. 60-501 states: "The provisions of this article govern the limitation of time
for commencing civil actions, except where a different limitation is specifically provided
by statute." (Emphasis added.) The remainder of Article 5 sets various statutes of
limitations for actions brought under Chapter 60. See, e.g., K.S.A. 60-506 (actions for
forcible entry and detention limited to 2 years from date action occurred), K.S.A. 60-511
(certain actions must be brought within 5 years), K.S.A. 60-512 (certain actions must be
brought within 3 years). The parties argue different outcomes based on the language in
K.S.A. 60-501, but some historical background is instructive at the outset.

In 1868, K.S.A. 60-501's predecessor was substantially similar in form to the
current version of the statute. See G.S. 1868, ch. 80, sec. 15, which provided: "Civil
actions can only be commenced within the periods prescribed in this article, after the
cause of action shall have accrued; but where, in special cases, a different limitation is
prescribed by statute, the action shall be governed by such limitation." During the time
this provision was in effect, this court regularly upheld private insurance contracts
shortening the statutory time period for filing claims. See, e.g., McElroy v. Insurance Co.,
48 Kan. 200, 205, 29 P. 478 (1892) (insurance contract provision requiring action for fire
damage to be brought within a shorter period than provided by statute held valid);
Insurance Co. v. Stoffels, 48 Kan. 205, 209, 29 P. 479 (1892) (6-month limitation in
insurance policy on causes of action binding on parties and eliminates all statutes of
limitations); Insurance Co. v. Bullene, 51 Kan. 764, 773, 33 P. 467 (1893) (insurance
policy provision requiring suit to be brought within 6 months sustained). The 1868
language stayed substantially intact until 1963, when the legislature codified the Code of
Civil Procedure and created K.S.A. 60-501 as it appears today.

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In 1897, the legislature enacted a separate statute, which provided that "[a]ny
agreement for a different time for the commencement of actions from the times in this act
provided shall be null and void as to such agreement." (Emphasis added.) L. 1897, ch.
91, sec. 1, 7th; G.S. 1899, ch. 80, art. 3, sec. 4262, 7th. This court relied on the newly
enacted restrictive language in L. 1897, ch. 91, sec. 1, 7th to prohibit contracts shortening
a statutory limitations period. See, e.g., Erickson v. Commercial Travelers, 103 Kan. 831,
834, 176 P. 989 (1918) (accident insurance contract requiring suit within 6 months of
baseball injury invalid when statute provided for longer period); Fair Association v.
Casualty Co., 107 Kan. 109, 113, 190 P. 592 (1920) (stipulation in casualty insurance
contract that action could only be brought within 90 days after date of judgment for loss
contrary to statute and invalid). G.S. 1899, ch. 80, art. 3, sec. 4262 eventually became
G.S. 1949, K.S.A. 60-306. And in 1963, it was repealed. L. 1963, ch. 303.

FedEx argues that since G.S. 1949, K.S.A. 60-306's repeal nothing precludes
contracting parties from reducing the limitations period. Pfeifer, on the other hand, argues
K.S.A. 60-501 plainly and unambiguously ties any exceptions to those "specifically
provided by statute." (Emphasis added.) K.S.A. 60-501. Pfeiffer argues that since a
contract is not a statute, a contract cannot create an exception to the time limitations
established by statute. She relies on Gifford v. Saunders, 207 Kan. 360, 485 P.2d 195
(1971), which contains a general statement consistent with her argument, specifically: "It
is readily seen that the limitation of time for commencing civil actions is exclusively
governed by the provisions of Article 5, except where a different limitation is specifically
provided by a statute." 207 Kan. at 362.

But Gifford did not address whether a contract may impact the statute of
limitations period when there is no statutory prohibition against such agreements. Instead,
the question centered on whether a plaintiff's marriage after a cause of action arose—and
prior to plaintiff attaining the age of 21—affected the running of the statute of limitations
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and required plaintiff to bring suit within 1 year of marriage. The court held that the
tolling provisions in K.S.A. 1970 Supp. 60-515, which provided a 1-year grace period to
file suit after attaining the age of 21, controlled. And it declined to follow K.S.A. 1970
Supp. 38-101, which defined the period of minority and the effect of marriage of persons
between the ages of 18 and 20 on the rights to sue or be sued, contract, or hold property.
The court continued after the general statement quoted above, stating: "By no stretch of
the imagination can 38-101 be considered a statute specifically providing for a different
limitation." 207 Kan. at 362. Gifford affords us no guidance to resolve the textual
argument Pfeifer advances.

The plain language of K.S.A. 60-501, however, does not preclude parties from
entering into contracts shortening the statute of limitations period set out in statute. And
nothing implicitly supplies that prohibition. The statute simply recognizes that instead of
the more general limitations periods in Article 5, there are other statutes that create rights
of action with their own statutory limitations periods that will be effective. See, e.g.,
K.S.A. 44-1005(i) (6-month statute of limitation under the Kansas Acts Against
Discrimination); K.S.A. 59-2239 (4-month statute of limitation in probate code); K.S.A.
40-2203(A)(7) (90-day limitations period to provide proof of loss to insurer). In addition,
our caselaw following the enactment of the similar 1868 statute, as well as the
legislature's 1963 repeal of the 1897 statute expressly prohibiting contractual provisions
restricting the statutes of limitations set out in law, persuasively favor FedEx's position as
to this point.

As noted above, K.S.A. 60-501 as originally enacted in G.S. 1868, ch. 80, sec. 15
provided that causes of action could only be commenced within the periods prescribed
except "where, in special cases, a different limitation is prescribed by statute, the action
shall be governed by such limitation." (Emphasis added.) This statutory language was not
read to prohibit contracts shortening a statute of limitations, and our court consistently
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held that contracting parties to insurance agreements could agree to shorten a limitations
period, going so far as to declare that such a contract "eliminates all statutes of
limitation." Stoffels, 48 Kan. at 208. This, of course, changed with the 1897 statute
expressly prohibiting such contract provisions. See Coates v. Metropolitan Life Ins. Co.,
515 F. Supp. 647, 650 (D. Kan. 1981) (citing cases upholding insurance policy provisions
limiting the time to sue in part because of early Kansas caselaw declaring them valid).

We see no support for Pfeifer's argument that K.S.A. 60-501 may be read to
prohibit the contract provision at issue. We turn next to her public policy claim in which
a different set of considerations arise.

PUBLIC POLICY UNDERLYING RETALIATORY DISCHARGE CLAIMS

Kansas adheres to the employment-at-will doctrine, which holds that employees
and employers may terminate an employment relationship at any time and for any reason
unless there is an implied contract governing the employment's duration. Campbell v.
Husky Hogs, 292 Kan. 225, 227, 255 P.3d 1 (2011). But there are exceptions. Some are
statutory, such as when adverse job actions are based on race, gender, or disability. See
K.S.A. 44-1009 (unlawful employment practices). Others are recognized through the
common law. 292 Kan. at 227.

Pfeifer focuses on our caselaw recognizing a public policy of protecting injured
workers from retaliation for exercising their statutory rights under the Workers
Compensation Act, K.S.A. 44-501 et seq. See Hysten v. Burlington Northern Santa Fe
Ry. Co., 277 Kan. 551, 561, 108 P.3d 437 (2004) (noting 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); see
also Coleman v. Safeway Stores, Inc., 242 Kan. 804, 816, 752 P.2d 645 (1988) (employer
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prohibited from terminating employee because of absence caused by work-related injury
and potential workers compensation claim), overruled in part 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, 99, 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). Indeed, protection from
employer reprisal in workers compensation cases was the first common-law retaliatory
discharge tort recognized in Kansas. Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630
P.2d 186 (1981). The Murphy court's logic was succinctly stated:

"The Workmen's Compensation Act provides efficient remedies and protection for
employees, and is designed to promote the welfare of the people in this state. It is the
exclusive remedy afforded the injured employee, regardless of the nature of the
employer's negligence. To allow an employer to coerce employees in the free exercise of
their rights under the act would substantially subvert the purpose of the act." (Emphasis
added.) 6 Kan. App. 2d at 495-96.

Similar causes of action have been endorsed in other retaliatory discharge cases.
See Campbell, 292 Kan. 225, Syl. ¶ 1 (filing wage claim under the Kansas Wage
Payment Act); Hysten, 277 Kan. at 561 (filing claim under Federal Employers Liability
Act); Flenker v. Willamette Industries, Inc., 266 Kan. 198, 204, 967 P.2d 295 (1998)
(whistleblowing claim based on good-faith reporting of federal Occupational Safety and
Health Act violations approved); Larson v. Ruskowitz, 252 Kan. 963, 974-75, 850 P.2d
253 (1993) (retaliatory discharge claim when a public employee terminated for exercising
First Amendment rights on an issue of public concern); Palmer v. Brown, 242 Kan. 893,
900, 752 P.2d 685 (1988) (whistleblowing based on good-faith reporting of coworkers' or
employers' infractions pertaining to public health and safety); see also Kistler v. Life Care
Centers of America, Inc., 620 F. Supp. 1268 (D. Kan. 1985) (retaliatory discharge action
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by employee fired after testifying against employer at unemployment compensation
hearing).

The necessity for recognizing a retaliatory discharge tort in each of these
circumstances has rested on a principle of deterrence against employer reprisal for an
employee's exercise of a legal right. And in those instances in which an employee is
exercising a statutory right created by the legislature, we have noted that such deterrence
serves not only the employee's interests but also those of the state and its people. This is
because statutory rights exist only because of the legislature's determination that such a
right is in the public interest. See Campbell, 292 Kan. at 235-36; Hysten, 277 Kan. at
561; Flenker, 266 Kan. at 202, 204.

Accordingly, the question presented has dual components. It is not simply whether
an employee should be able to contract with an employer for a shorter period of time to
file a lawsuit. If it were, FedEx's arguments embracing freedom of contract principles
would carry greater weight. But in cases such as this—involving a retaliatory discharge
claim based on an employee's exercise of statutory workers compensation rights—we
must consider the impact such agreements would have on the deterrent effect underlying
that cause of action. And as to this, we disagree with FedEx that our retaliatory discharge
caselaw is immaterial.

In its decision granting FedEx summary judgment, the federal district court found
authority for upholding the contract provision in Coates and three other Kansas federal
court decisions, which the court characterized as "the Coates' line of cases." Pfeifer, 818
F. Supp. 2d at 1291. But Coates was an insurance claim case and did not address any
public policy concerns triggering retaliatory discharge cases based on the violation of a
statutory right. Coates, 515 F.Supp. at 648. Two of the other decisions similarly dealt
with insurance-related claims and are unpersuasive for the same reason. See Columbian
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Fin. Corp. v. Businessmen's Assur. Co., 743 F. Supp. 772, 775 (D. Kan. 1990)
(interpretation of stop loss medical insurance policy limitations provision), rev'd on other
grounds 1992 WL 19867 (10th Cir. 1992) (unpublished opinion); Hahner, Foreman &
Harness, Inc. v. AMCA Intern. Corp., No. 94-1170-PFK, 1995 WL 643814, at *2 (D.
Kan. 1995) (unpublished opinion) (terms of payment on construction performance bond).
The fourth case was a class action for unpaid commissions that did not allege retaliatory
discharge. Sibley v. Sprint Nextel Corp., No. 08-2063-KHV, 2008 WL 2949564, at *5 (D.
Kan. 2008) (unpublished opinion). That case adds nothing to the analysis either.

As to public policy concerns, the Pfeifer federal district court simply found none.
It determined this court's cases addressing retaliatory discharge "do nothing in the way of
establishing a public policy against setting limits on when such claims must be brought."
Pfeifer, 818 F. Supp. 2d at 1291. Instead, the district court looked to other jurisdictions
that have upheld these contractual limitation provisions in the context of employment
discrimination. It also looked to laws in other states setting similarly short statute of
limitations periods. This led the court to detect what it described as "a strong preference
for quick resolution of claims that an employer acted wrongly." 818 F. Supp. 2d at 1292.
But this is not the only view.

Missing from the federal court's analysis, although identified in a footnote, is this
court's decision in Hunter v. American Rentals, 189 Kan. 615, 371 P.2d 131 (1962). In
that case, we considered the validity of a contract between a trailer rental company and its
customer after the customer was injured when a faulty hitch connecting the company's
trailer caused the customer's car to overturn. The company defended based on its rental
agreement that provided it would not be liable for any accident resulting from the use of
its equipment and disclaimed any warranty of fitness or usage regarding the equipment.
In rejecting that defense, this court held that the rental contract was void as against public
policy because the company owed a duty to both its customer and the general public to
14



provide safe hitches. We held the company could not defeat its legal duty through its
contract. In so holding, we determined the contract provision would reverse the
legislative purpose in passing the statute that required it to provide safe equipment. 189
Kan. at 617-18.

Hunter serves as persuasive authority that we must consider the impact of the
contract at issue to ensure that it does not subvert the public policy underlying the
Workers Compensation Act. FedEx argues Hunter is inapposite because it involved a full
waiver of liability rather than FedEx's 6-month limitation on the employee's time to
enforce legal rights. And in support, FedEx cites Achen v. Railway Co., 103 Kan. 668,
175 P. 980 (1918), and Abell v. Railway Co., 100 Kan. 238, 164 P. 269 (1917), to argue
that judicial voiding of contract provisions waiving negligence does not negate contract
provisions specifying the time within which claims must be made. But these cases
involved interstate livestock shipping contracts and do not relate to the public interest
concerns involving retaliatory discharge. They are easily distinguishable.

Statutes of limitations are creatures of the legislature and themselves an expression
of public policy on the rights to litigate. They find their justification in necessity and
convenience and serve the practical purpose of sparing courts from litigating stale claims
and people from being put to the defense of claims after memories fade and witnesses
disappear. See KPERS v. Reimer & Koger, Assocs., Inc., 262 Kan. 635, 676, 941 P.2d
1321 (1997) (citing Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958
[1992]). But as creatures of the legislature, statutes of limitations also reflect legislative
determinations that necessarily balance these various interests. FedEx asks the court to
inject its own public policy views into this give-and-take under a freedom-to-contract
rationale when our legislature has provided 2 years to bring a cause of action that protects
the exercise of statutory rights under the Workers Compensation Act. We decline to do
that.
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There is little question that restricting an employee's time to bring a retaliatory
discharge claim for a job termination suffered following that employee's exercise of a
statutory right necessarily impedes the enforcement of that right and the public policy
underlying it. And while Pfeifer's contract shortened her time in which to seek recovery
rather than outright prohibiting it, such as in Hunter, FedEx effectively weakened her
right to pursue a cause of action and potentially subverts the public interest in deterring
employer misconduct. In that respect, it impermissibly infringes on Pfeifer's ability to
enforce her statutory rights by derogating her access to the courts.

We hold that the private contract entered into between FedEx and Pfeifer violates
public policy and is invalid to the extent it limits the applicable 2-year statute of
limitations under K.S.A. 60-513(a)(4) for filing a retaliatory discharge claim based on her
exercise of rights under the workers compensation laws. This holding is limited to the
circumstances in which there is a strongly held public policy interest at issue.

Having established that the parties were precluded from shortening the 2-year
retaliatory discharge statute of limitations by contract in this circumstance, we decline to
address the second certified question regarding the reasonableness of the 6-month term.