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King v. Cowboy Dodge, Inc.

Supreme Court of Wyoming

September 23, 2015

BRYAN KING, Appellant (Plaintiff),
COWBOY DODGE, INC., Appellee (Defendant)

Appeal from the District Court of Laramie County. The Honorable Catherine R. Rogers, Judge.

Representing Appellant: Bernard Q. Phelan of The Phelan Law Firm, Cheyenne, Wyoming.

Representing Appellee: Sean W. Scoggin of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

Before BURKE, C.J., and HILL, KITE[*], DAVIS, and FOX, JJ.


Page 756

DAVIS, Justice.

[¶1] Appellant Bryan King challenges the district court's grant of summary judgment to Appellee Cowboy Dodge, Inc. King claims that his retaliatory discharge claim should proceed to trial because there are genuine issues of material fact concerning his retaliation claim. After applying the correct legal standard as to the causal showing required and the proper standard of review for summary judgment, we agree with King and therefore reverse and remand.


[¶2] Because this case was decided on summary judgment, we will generally state the facts in the light most favorable to King. King was hired as an automobile painter in the body shop owned by Cowboy Dodge in

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Cheyenne on February 16, 2009. He attested by affidavit[1] that he injured his back on December 3, 2010. He later told his physician that he felt a " pop" in his low back, followed by pain radiating down his left leg.

[¶3] He reported the injury to his supervisor Gary Gardner the following Monday, December 6, 2010. According to King, Gardner did not suggest filing a report of injury with the Worker's Compensation Division, but instead steered King to chiropractic care at his own expense.

[¶4] King claims that the chiropractor eventually advised him to seek medical care, and his sister, who evidently knew something about such things, recommended that he file a worker's compensation claim. When he told Gardner his intent, Gardner replied that it was too late to get worker's compensation benefits, but that he would check with the office manager to see if King could file a claim. A report of injury was completed and signed by both Gardner and King on January 24, 2011, and it was filed with the Worker's Compensation Division the same day.

[¶5] Gardner sent King to Health Reach, a local urgent care clinic, for evaluation of his injury. Health Reach in turn referred him to Dr. Vincent Ross, a Cheyenne family practitioner with additional training in orthopedics. Dr. Ross started King on a course of physical therapy, which he pursued while he continued to work full-time for Cowboy Dodge. King testified that after he applied for benefits, Gardner began to find ways to reduce his pay by assigning him to non-paying work.

[¶6] On February 16, 2011, the Division accepted the late filing[2] and determined the injury to be compensable. Cowboy Dodge did not contest that determination. Eight days later, on February 24, 2011, Gardner terminated King, told him that he was authorized to do so by his supervisor, and sad he didn't need to give a reason.[3]

[¶7] Coincidentally, King had an appointment with Dr. Ross that very day, and when he explained that he had been terminated, Dr. Ross certified him to be temporarily totally disabled based upon a herniated lumbar disk with associated left leg radiculopathy.[4] The Division awarded benefits, in response to which Cowboy Dodge objected and sought an administrative hearing before the Office of Administrative Hearings (OAH).

[¶8] At the hearing, Cowboy Dodge presented documents critical of King's job performance because he failed to properly match the paint on two vehicles.[5] There was evidently tension between King and his employer concerning blend time--the time required to match paint. In the first instance, the paint did not match, and the customer insisted on taking the vehicle to another body shop to redo the work. Cowboy Dodge had to refund the money it was paid by the insurance carrier. However, Gardner knew the paint did not match when he turned the vehicle over to the customer. A disciplinary action form related to this event was dated January 7, 2011, but it was not signed by King in a block for " employee signature," nor was there any indication that King refused to sign.

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[¶9] The second vehicle also had to be repainted because the paint did not match. There is another written disciplinary action form dated February 18, 2011. In the place for " employee signature," the words " Brian King" were printed, misspelling " Bryan."

[¶10] Gardner claimed to have discussed these problems with King when the forms were completed. King unequivocally denied that Gardner or anyone else ever complained or counseled him about these incidents or any other aspect of his job performance, and that he had ever seen those documents before the OAH hearing. He pointed out that his name is spelled " Bryan" and not " Brian," as it appears in the signature block on the form relating to the second paint job. Confronted with this seeming inconsistency, Gardner explained that he just needed to write the employee's name somewhere on the form to indicate whose file it was to be placed in. Why he chose to write it in the place for the employee signature rather than somewhere else on the form is not clear.

[¶11] The OAH awarded King temporary total disability benefits. He ultimately had a discectomy which relieved at least some of his symptoms. He claims that his physicians would have allowed him to return to work a week after the surgery, although he did not do so and instead pursued physical therapy through Dr. Ross's office.[6] He was thereafter determined by the Division to have reached maximum medical improvement, and his temporary total disability benefits were terminated on January 18, 2012. He received a 9% permanent partial impairment rating on January 27, 2012. On January 31, 2012 he waived payment for the impairment and applied for a vocational rehabilitation program administered by the Division instead. He indicated in that application that his physician had restricted him from heavy lifting or crouching.

[¶12] The Division granted the benefits, finding as follows:

The compensable injury has resulted in a permanent impairment due to the nature and extent of the injury and will prevent you from returning to gainful employment in any occupation for which you have training or experience during the (3) year period before the injury.

King testified that he was engaged in vocational rehabilitation treatment as of the date of his deposition, May 30, 2014.[7]

[¶13] King sued Cowboy Dodge in Laramie County District Court on June 24, 2013, claiming that he was entitled to damages in tort because the company terminated him in retaliation for filing his worker's compensation claim. Cowboy Dodge answered, denying that King was terminated for filing the compensation claim, and raising certain affirmative defenses. Cowboy Dodge then moved for summary judgment, claiming that King could not establish a prima facie case of retaliatory discharge, that he did not have a claim for damages because he received temporary total disability benefits and participated in vocational rehabilitation, and that he could not recover damages for mental or emotional damages. King responded with facts he claimed presented a prima facie case and which he said showed that the reasons given for his discharge were pretextual.

[¶14] The district court granted the motion, finding that King had failed to make the required showing that his termination was " consequent" to filing a worker's compensation claim, and therefore granted summary judgment.

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[¶15] The parties identify several issues which we restate as ...

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