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1. (a) "Woods I": Woods v. Midwest Conveyor Co., 231
763, 648 P.2d 234 (1982). No authority for awards of damages for pain, suffering and humiliation; adopted Burdine test for burden of proof and going forward with the evidence in Kansas Act Against Discrimination cases; declared no jury trial of right in Kansas Act Against Discrimination district court appeals. Kan.
(b) "Woods II": Woods v. Midwest Conveyor Co., 236
734 (1985). Usual scope of appellate review applies to appeals in District Court decisions of KAAD cases. First ever case where KAAD employment discrimination complainant won an appeal on the factual merits of his case. Kan.
(c) Rebarchek v. Farmers Co-op Elevator & Mercantile Ass'n, 28
App2d 104, 13 P.2d 17 (2000). Reaffirms holding in Woods that events predating period of limitations may provide a basis for recovery as part of a continuing pattern of discrimination, and extends continuing conduct theory to retaliatory discharge actions. Affirmed as to this issue, but reversed in part, per Rebarchek, 272 Kan. 546, 35 P. 3d 892 (2001). Kan.
2. (a) "Nurge I": Nurge v. State of
Kansas, University of Kansas Medical Center, 234 309 (1983). De novo appeal is heard on Kansas Commission on Civil Rights record; no representation and rehash of testimony of live witnesses who testified at Kansas Commission on Civil Rights hearing is allowed; not a traditional de novo trial, but a unique Kansas Act Against Discrimination proceeding. Kan.
(b) "Nurge II": Nurge v. State of
, et al: Kansas Supreme Court unpublished 1985 decision. Held in favor of Respondent. Kansas
3. Van Scoyk v. St. Mary's Assumption Parochial School, 224
Kan.304, 580 P.2d 1315 (1978) (also see, Bush v. City of Wichita, 223 651, 576 P.2d 1071 (1978)). No appeal from No Probable Cause finding of Kansas Commission on Civil Rights; direct tort action v. Respondent after Kansas Commission on Civil Rights No Probable Cause finding; "sectarian" corporations exempt from Kansas Act Against Discrimination coverage. Kan.
4. Stephens v. U.S.D., 218
220, 546 P.2d 197 (1975) Forerunner to Nurge on de novo issue; sets out guidelines for "specificity" required in application for rehearing. (Also see, Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 510 P.2d 132 (1973)). Kan.
HutchinsonHuman Relations Comm. v. Midland Credit Management, Inc., 213 308, 517 P.2d 158 (1973). Successful conciliation agreement enforcement action. Kan.
6. Flanigan v. City of
Leavenworth, 232 522, 657 P.2d 555 (1983). Webb v. City of Kan. Leavenworth, 8 App. 2d 525, 661 P.2d 1 (1983). Farmland Foods, Inc. v. Kan. Court of Appeals No. 52, 694, November 18, 1981 (unpublished). Green v. Herrera, Kansas County, #54, 628 Ct. App., Aug. 4, 1983; Betts v. International Paper Co., #83, 54834-A, June 6, 1983 (unpublished) (review denied). "Documentary evidence rule" inapplicable to appeals of Kansas Act Against Discrimination cases from District Court to appellate courts; form of document(s) used to appeal to District Court allows various formats. Jury trial request denied (Webb and Flanigan). Shawnee
7. Jones v. The Grain Club, 227 Kan. 148, 605 P.2d 142 (1980) where Respondent asserts Kansas Commission on Civil rights delay in investigating the case prejudiced Respondent's case, district court must hold evidentiary hearing on that issue and find actual instances of prejudice. Mere laches or mere vague assertion of prejudice is insufficient for dismissal. (Also see, Harder v. KCCR, 225
556, P.2d 456 (1979). Kan.
8. Kansas Turnpike Authority v. Jones, 7 Kan. App. 2d 599 (1982) Kansas Commission on Civil Rights may certify the Kansas Commission on Civil Rights record to district court any time before the court hears the case. The certification is not an "answer" to the appeal and no "answer" to the appeal is required.
9. Reber v. Mel Falley Inc., 235
Kan.562 (1984), Sup. Kansas (1984) Complainant need not present rebuttal per se, but may rebut, Respondent's assertion by cross-examination and Complainant's case-in-chief. Ct.
10. Butler v. K.C. Ks. Police Department, #82-54454-A, Ks. Ct. of App. (1982) (unpublished). 10-day time period in which to file rehearing application not extendable. Filing timely rehearing application is jurisdictional prerequisite to appeal to district court. Appeal dismissed and Kansas Commission on Civil Rights order upheld on that basis without considering merits of the case.
11. KCCR v. City of
Topeka Street Department, 212 398, 511 P.2d 253 (1973), (cert. denied by U.S. Sup. Ct.) Cooper v. Stokely Van Camp, unpublished Ct. of App. Case (1982) #81-53706A where application for rehearing denied by operation of law, 30 days to appeal to district court runs from date of service of original Kansas Commission on Civil Rights order. Kan.
12. Subpoena cases:
, T. & S.F. Rly. Co. v. KCCR , 215 Atchison 911, 529 P.2d 666 (1974). Kan.
b. A.T. & S.F. Rly. Co. v. Lopez, 216
108, 531 P.2d 455 (1975). Kan.
c. KCCR v.
Carlton, 216 735, 533 P.2d 1335 (1975). Kan.
d. KCCR v. Sears, Roebuck & Co., 216
306, 532 P.2d 1263 (1975). Kan.
e. Yellow Freight System, Inc. v. KCCR, 214
120, 519 P.2d 1092 (1974). Kan.
f. Cessna Aircraft Co. v. KCCR, 229
15, 622 P.2d 124 (1981). Kan.
g. KCCR v. Chance Mfg. Co., Inc., Ks. Ct. of Appeals 6 Kan. App. 2d 61, 621 P. 2d 332 (1981).
13. Jarvis v. KCCR, 215
902, 528 P.2d 1232 (1974) attempts to enjoin Kansas Commission on Civil Rights investigation and hearings not favored. Must assert defenses before Kansas Commission on civil Rights at public hearing and exhaust administrative remedies before resorting to extraordinary remedy of injunction from district court. Kan.
14. KCCR v. Service Envelope Co., 233
20, 660 P.2d 549 (1983) deals with successor corporation liability for Kansas Act Against Discrimination violation. Kan.
Everettv. Blue Cross-Blue Shield Ass'n., 225 63, 587 P.2d 873 (1978). Forerunner to Nurge as to format of de novo appeal. Kan.
v. GSCAA, Ks. Ct. App. No. 80-52033-A (unpublished) deals with nonprofit social and fraternal organization exemption. Cleveland
17. U.S.D. 259 v. KCCR & Palmer, 7
App. 2d 722 (1982) (review denied) narrowly construed KAAD provision regarding discrimination based on "physical handicap." Kan.
18. Beemer d/b/a Central Security Service U.S. Bankruptcy Court Case #80-12000: bankruptcy case held unappealed or otherwise final order of Kansas Commission on Civil Rights in favor of Complainant is not dischargeable debt of Respondent. Discrimination is of the nature of intentional tort.
19. Legg v.
Halfway House, Ks. Ct. App. #53,537 (1982) (unpublished). Failure to serve Complainant with copies of documents appealing to District Court not a basis to dismiss Respondent's appeal. Topeka
20. McCabe v. Johnson County, 5
App. 2d 232, 615 P.2d 780 (1980) discusses "retaliation" situation under K.S.A. 44-1009 (a) (4). Kan.
21. Padilla v. City of
, 238 Kan. 218 (1985): narrowly construes physical handicap. Topeka
22. Statutory authority pertaining to KCCR does not include award of compensatory damages. State ex. rel. Secretary of S.R.S. vs. Fomby 11
App. 2d 138, 143, 715 P.2d 1045 (1986). Kan.
23. Cited; exhaustion of administrative remedies following employment termination (75-2949) before pursuing independent civil action (75-2929) examined. Mattox v. Department of Transportation, 12
App. 2d 403, 747 P.2d 1974 (1987). Kan.
24. Kansas Commission on Civil Rights lacks jurisdiction to investigate complaints of discrimination in public schools.
KansasCommission on Civil Rights v. U.S.D. No. 501, 243 137, 755 P.2d 539 (1988). Commission lacks jurisdiction under the KAAD to investigate discriminatory arrest practices. KCCR v. Howard, 218 Kan. Kan.248, 544 P.2d 791 (1975); City of Independencev. KCCR, 218 243, 544 P.2d 799 (1975). Kan.
25. Company policy affording leaves of absences to employees suffering disabilities from pregnancy does not constitute sex discrimination. Kansas Gas & Electric Co. v.
KansasCommission on Civil Rights, 242 763, 750 P.2d 1055 (1988). Kan.
26. Commission dismissed administrative complaint when Federal lawsuit filed; administrative remedies exhausted. Freeman v Kansas State Network, Inc., 719 F. Supp. 995, 997 (1989).
27. Order issued under act not res judicata for civil action arising out of same incident and same statutory authority. Parker v Kansas Neurological Institute, 13
App. 2d 685, 688, 778 P.2d 390 (1989). Kan.
28. Act provides an adequate and exclusive state remedy for violations of public policy enunciated therein. Polson v Davis, 895 F.2d 705, 706, 709 (1990); Williams V. Prison Health Services, Inc., 159 F. Supp.2d 1301, 1315 (2001).
29. Review by trial and appellate courts noted; shifting burden of proof in sex (44-1009) and age (44-1113) discrimination complaints examined.
Kansas State Universityv. KansasCommission on Civil Rights, 14 Ann.2d 428, 429, 796 P.2d. 1046 (1990) Kan.
30. Poor credit record of female applicant for firefighter position as reason for rejection constituted gender discrimination. Scott v. City of
Police & Fire Civil Service, 739 F. Supp. 1434 (1990). Topeka
31. State law claim may not be brought in federal civil rights action; state remedies adequate and exclusive. Guilford v Beech Aircraft Corporation, 768 F. Supp. 313, 320 (1991).
32. Plaintiff's cause of action for outrage not preempted by Kansas Act Against Discrimination. Laughinghouse v Risser, 786 F. Supp. 920, 930 (1992).
33. Sectarian corporation not employer for purposes of KAAD. Zion Lutheran Church vs. Kansas Commission on Civil Rights, 16
App. 2d 237, 821 P.2d 334 (1991) aff'd.251 Kan. 206, 860 P.2d 536 (1992). Kan.
34. Subsection (k) cited; Kansas Commission on Civil Rights authorized to order award of front pay and promotion to aggrieved party. State vs.
KansasCommission on Civil Rights, 18 App. 2d 116, 121, 851 P.2d 1017 (1993). Kan.
35. Act requires petition for reconsideration by agency as prerequisite to action in district court. Time for filing appeal for judicial review commenced running on date of ruling on petition for reconsideration. United Steelworkers of
Americav. Commission on Civil Rights, 253 Kan.327, 330, 855 P.2d 905 (1993). Kansas
36. Kansas Human Rights Commission lacks jurisdiction to fine or penalize a non-profit association or corporation not coming within definition herein. Regulation reaching beyond legislative authority violates the statute; authority to declare public policy vested in legislature not administrative agency. Kansas Human Rights Commission v Topeka Golf Association, 18
App. 2d 581, 586, 592, 856 P.2d 515 (1993). Kan.
37. Claimant must file motion to reconsider Kansas Human Rights Commission order to satisfy administrative exhaustion doctrine. Simmons vs Vliets Farmers Coop Association, 19
App. 2d 1, 861 P.2d 1345 (1993). Kan.
38. Whether section is primarily equitable or legal for right to jury trial purposes is examined. Wagher v Guy's Foods, Inc., 256
300, 321, 885 P.2d 1197 (1994). Kan.
Human Rights Commission's termination of proceedings following notification of federal suit satisfied exhaustion of administrative remedies examined. Wagher v Guy's Foods, Inc., 256 Kansas 300, 309, 885 P.2d 1997 (1994). Kan.
40. Cited; whether the boy scouts is a public accommodation for Kansas Act Against Discrimination (40-4001, et seq.) purposes in religious discrimination claim examined. Seabourn v Coronado Area Council, Boy Scouts of America, 257
178, 191, 199, 210, 891 P.2d 385 (1995). Kan.
41. In KHRC v. Dale, 25 Kan. App.2d 689 (1998), the court of appeals, for the first time, addressed the issue of burden of proof in a housing case brought under the Kansas Act Against Discrimination.
42. Hughs v. Valley State Bank, 26
App. 2d, 631, 994 P. 2d 1079 (1999), (review denied): Discusses"dual filing" system existing between KHRC and EEOC and filing requirements regarding KHRC complaints. Kan.
43. Sandlin v. Roche Laboratories, Inc., 268
79, 941 P. 2d 883 (1999): deals with issues regarding exhaustion of KHRC administrative remiedies prior to filing a direct tort action in court pursuant to the KAAD. Kan.
44. Seaman U.S.D. No. 345 v. KCCR, 26
App. 2d 521 (1999) (review denied): Interprets KAAD regarding employment discrimination on the basis of disability. Kan.
45. Labra v Mid-Plains Construction, 32 Kan. App. 2d 821 (2004) (review denied): Construes KAAD sex discrimination provision to include sexual harassment, and relies on Title VII cases in finding alleged sexual harassment sufficiently severe and pervasive to survive summary judgment.
46. Beech Aircraft Corp. v KHRC, 254
270, 864 P. 2d 1148 (1993): appellate review issues in KADEA cases. Kan.
47. Garvey Elevators v. KHRC, 24
Kan.App. 2d 595, 948 P. 2nd 1150 (1993) and Garvey Elevators v. KHRC, 265 484, 961 P. 2d 696 (1998): dealt with issues of appellate review in a complaint alleging racial harassment and constructive discharge in employment. Kan.
48. Excel Corp. v. KHRC, 19
App. 2d 6, 8648 2d 220 (1993): KADEA case in which age discrimination in employment was proven. Kan.
49. Claim for "failure to accomodate" must be brought under KAAD rather than workers compensation act/ retaliatory discharge theory. Thidsorn v. Excel Corporation, 27 K.A.2d 735 (2000); Griffin v. Dodge City Cooperative Exchange, 23 K.A. 2d 139 (1996).
50. Federal right to sue letter not sufficient to establish exhaustion of state administrative remedies and summary judgement granted on (KAAD) claim. Ratts v. Board of
County Com'r, Harvey County, KS, 141 F. Supp.2d 1289, 1298 (D. 2001). Kan.
51. Factual issues as to whether workplace constituted hostile work environment precluded summary judgement. However, summary judgement granted as to disparate treatment claim based on plaintiff's national origin (neither low evaluation nor failure to provide training in native language were adverse actions under facts presented), disability discrimination claim (plaintiff failed to establish shift change accommodation was necessary for diabetic condition) and constructive discharge claim. Munoz v. Western Resources, Inc., 225 F. Supp2d 1265, 1266 (D.
52. Failure to establish prima facie case of race discrimination (or, alternatively, pretext) under KAAD where evidence of similarly situated employees not developed. Tomita v. University of
Kansas Medical Center, 227 F. Supp2d 1171, 1180 (D. 2002). Kan.
LAW REVIEW AND BAR JOURNAL REFERENCES
1. "Statutory Interpretation; Boy Scouts in the Bible Belt; Boy Scouts' Rejection of Atheist not illegal in
Kansas, [Seabourn v CoronadoArea Council, Boy Scouts of America, 891 P.2d 385 ( 1995)]," 35 W.L.J. 359, 368 (1996) Kan.
2. "Vengenance Is Not Mine: A Survey of the Laws of Title VIII Retaliation" 75 J.K.B.A. 20 (2004).
3. "Bosses Beware - It's a Jungle Out There," 65 J.K.B.A. 20 (1996).
NOTE: In 1991, the name of the Kansas Commission on Civil Rights was changed to the Kansas Human Rights Commission.
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