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Kolar v. R & P

April 21, 2009

JAMES KOLAR, APPELLANT (PLAINTIFF),
v.
R & P, INC., APPELLEE (DEFENDANT).



Appeal from the District Court of Teton County The Honorable Nancy J. Guthrie, Judge.

The opinion of the court was delivered by: Hill, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Appellant, James Stanley Kolar (Kolar), was employed by Appellee, R & P, Inc. (R & P), from 1997 until 2004. Kolar experienced some health problems and underwent several surgeries and their associated recuperative periods during that time. Thereafter, Kolar was fired from his job. According to R & P, that termination was premised on his poor performance as an assistant manager. Kolar filed a claim with the Department of Employment Fair Employment Program (DEFEP) alleging that his discharge was based on R & P‟s perception that he was disabled. DEFEP attempted to conciliate Kolar‟s claim and when that failed to produce a result, his case was referred to the Equal Employment Opportunity Commission (EEOC). On July 16, 2006, the EEOC issued a Notice of Right to Sue, and informed Kolar that it was ending its processing of the claim. Kolar then filed the instant lawsuit in Teton County on September 22, 2006. The district court declined to address Kolar‟s claim associated with his asserted disability on the basis that he had failed to exhaust his administrative remedies. Kolar appealed from that order. We will affirm.

ISSUES

[¶2] Kolar presents these issues:

--When an employee sued his employer for wrongful discharge in violation of public policy, did the district court err in dismissing that claim on the ground that another remedy existed, even though the employee had filed a complaint with the State of Wyoming‟s Fair Employment Program, and that agency had determined that the employer had engaged in discrimination on the basis of disability, had attempted unsuccessfully to mediate settlement of the complaint and then had dismissed the matter for failure to conciliate?

--Does an alternate remedy exist to protect against job discrimination on the basis of disability by employers with less than 15 employees, when state law bars such discrimination by those employers, but the only remedy provided is an administrative process where the Wyoming Fair Employment Program investigates and then attempts to mediate a settlement, so that an employer can effectively bar the discharged employee from recovering anything through the administrative process simply by refusing to settle?

R & P queries:

Was the district court correct in dismissing employee‟s claim for tort in violation of discharge against public policy by finding that another remedy existed, thus barring the claim in tort?

Does the Wyoming Fair Employment Practices Act provide a sufficient remedy to protect employees from job discrimination such that the tort of wrongful termination in violation of public policy is not available?

FACTS AND PROCEEDINGS

[¶3] Kolar worked for R & P (which is the corporate name of the Ace Hardware Store in Jackson) from August of 1997 until September 25, 2004. At that time he was terminated from his employment for poor performance. He was given five weeks severance pay in connection with his termination. However, in the years preceding his firing, Kolar had experienced a series of physical problems which required surgeries on both of his ankles and on his spine as the result of a condition known as "connective tissue disorder." Most of the time he was away from work he was on either sick leave or vacation leave, but near the end of his employment he asked to take time off without pay because he had no remaining sick or vacation time left.

[¶4] In a document entitled Charge of Discrimination which was received by DEFEP on December 22, 2004, Kolar asserted that his employer regarded him as disabled and that he was denied a reasonable accommodation. That charge was filed pursuant to the Wyoming Fair Employment Practices Act of 1965. Under the provisions of Wyo. Stat. Ann. § 27-9-105(a)(i) (LexisNexis 2007), "[i]t is a discriminatory or unfair employment practice.[f]or an employer to refuse to hire, to discharge, to promote or demote, or to discriminate in matters of compensation or the terms, conditions or privileges of employment against, a qualified disabled person.." Wyo. Stat. Ann. § 27-9-105(d) provides: "As used in this section "qualified disabled person‟ means a disabled person who is capable of performing a particular job, or who would be capable of performing a particular job with reasonable accommodation to his disability." That Act defines "employer" as ".the state of Wyoming or any political subdivision or board, commission, department, institution or school district thereof, and every other person employing two (2) or more employees within the state; but it does not mean religious organizations or associations." Wyo. Stat. Ann. § 27-9-102(b)(LexisNexis 2007). R & P employed 12 persons.*fn1

[¶5] Of particular importance in this case are the provisions of Wyo. Stat. Ann. § 27-9-106:

(a) Any person claiming to be aggrieved by a discriminatory or unfair employment practice may, personally or through his attorney, make, sign and file with the department within six (6) months of the alleged violation a verified, written complaint in duplicate which shall state the name and address of the person, employer, employment agency or labor organization alleged to have committed the discriminatory or unfair employment practice, and which shall set forth the particulars of the claim and contain other information as shall be required by the department. The department shall investigate to determine the validity of the charges and issue a determination thereupon.

(b) through (j) Repealed by Laws 2001, ch. 162, § 2.

(k) If the employer, employment agency, labor organization or employee is aggrieved by the department's determination, the aggrieved party may request a fair hearing. The fair hearing shall be conducted pursuant to the Wyoming Administrative Procedure Act.

(m) The department shall issue an order within fourteen (14) days of the decision being rendered, requiring the employer, employment agency or labor organization to comply with the hearing officer's decision. If the employer, employment agency or labor organization does not timely appeal or comply with the order within thirty (30) days, the department may petition the appropriate district court for enforcement of the order.

(n) Where the hearing officer determines that the employer, employment agency or labor organization has engaged in any discriminatory or unfair employment practice as defined in this chapter, the hearing officer's decision may:

(i) Require the employer, employment agency or labor organization to cease and desist from the discriminatory or unfair practice;

(ii) Require remedial action which may include hiring, retaining, reinstating or upgrading of employees, referring of applications for employment by a respondent employment agency or the ...


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