Opinion
NO. 2018-CA-000054-MR
01-18-2019
WESLEY STOVER APPELLANT v. LOUISVILLE METRO DEPARTMENT OF PUBLIC HEALTH AND WELLNESS AND LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT APPELLEES
BRIEFS AND ORAL ARGUMENT FOR APPELLANT: Oliver H. Barber, Jr. Louisville, Kentucky BRIEF FOR APPELLEES: I. Joel Frockt Louisville, Kentucky ORAL ARGUMENT FOR APPELLEES: Annale R. Taylor Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 17-CI-003004 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
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BEFORE: COMBS, J. LAMBERT AND K. THOMPSON, JUDGES. COMBS, JUDGE: Wesley Stover appeals from an order of the Jefferson Circuit Court that denied his motion to alter, amend, or vacate an order dismissing his claims against Louisville Metro Department of Public Health and Wellness and Louisville/Jefferson County Metro Government. After our review, we affirm in part, vacate in part, and remand for further proceedings.
From January 2001 through November 18, 2016, Stover was employed as manager of the information technology section of the Department of Public Health and Wellness, a division of Metro Government. In June 2017, he filed a verified complaint against the Department and Metro Government for wrongful termination and violation of Kentucky's Whistleblower Act, KRS 61.101, et seq.
Kentucky Revised Statutes.
In his complaint, Stover alleged that he requested the facilities department to remove ceiling tiles in his workspace in January 2016. According to Stover, the tiles appeared to be tar-stained as a result of years of cigarette smoke. When tested, the tiles were discovered to contain asbestos. Stover alleged that he informed his supervisor and the interim director of his department of the asbestos-ridden tiles in March. Stover contacted the facilities department in April and again in July to inquire about a timeline for replacement of the tiles. In September, Stover and his supervisor were informed that the ceiling tiles would not be replaced during the fiscal year. Stover complained again in September and October about the asbestos. In his civil action, Stover alleged that he disclosed to his supervisor that he would file a federal or state OSHA (Occupational Safety and Health Act) complaint if the tiles were not promptly removed.
Stover was discharged in November after it was discovered that his electronic badge entry history did not match his timesheets. Pursuant to Metro Government's personnel policy, Stover appealed the termination decision. He provided several explanations for the discrepancies between his timesheets and the badge entry reports. He also complained that other department employees had similar discrepancies between their timesheets and badge entry reports but that no action had been taken against them. Stover's appeal was denied.
He then appealed to the Metro Government's human resources department. Following a hearing, the hearing officer concluded that termination of Stover's employment was justified and denied the second appeal. Stover alleged that the charge that he had falsified his time sheets was a pretext for the discharge and that his announcement that he intended to file an OSHA complaint contributed to the Department's decision to terminate his employment. In Count I of his complaint, Stover alleged that his discharge under these circumstances violated provisions of Kentucky's Whistleblower Act.
In Count II of his verified complaint, Stover alleged that he was wrongfully discharged after he made an open records request in November 2016. This request pertained to an incident involving the Department of Public Health and Wellness information technology staff and the Metro Government's technology department. Stover alleged that his superiors were "furious" that he had made the request. In his complaint, Stover claimed that this open records request was another contributing factor in the decision to terminate his employment.
On July 5, 2017, the Department of Public Health and Wellness and Metro Government filed a motion to dismiss Stover's claim of wrongful discharge pursuant to the provisions of CR 12.02(f) (failure to state a claim upon which relief may be granted). The government entities contended that Stover's common law action was barred by principles of sovereign immunity.
Kentucky Rules of Civil Procedure.
On July 14, 2017, the Department of Public Health and Wellness and Metro Government filed a motion to dismiss Count I of Stover's complaint as well. The government entities argued that Stover's claim under the provisions of Kentucky's Whistleblower Act was preempted and that his remedy, if any, was recourse to the specific provisions of Kentucky's Occupational Safety and Health Act providing for reinstatement and back pay.
Following oral argument, the circuit court ordered that both counts of the complaint be dismissed with prejudice since Stover had failed to state a claim upon which relief may be granted. Stover's motion to alter, amend or vacate was denied by order entered on December 8, 2017. This appeal followed.
On appeal, Stover argues that the circuit court erred by dismissing each of his claims against the Department of Public Health and Wellness and Metro Government. The Department of Public Health and Wellness and Metro Government moved the circuit court to dismiss Stover's complaint for failure to state a claim upon which relief may be granted. Such a motion admits the material factual allegations of the complaint, and the pleadings must be construed liberally in a light most favorable to the plaintiff. Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010). Upon our review, we must evaluate the allegations to determine whether -- as a matter of law -- the plaintiff would be entitled to relief if he could prove the facts alleged. Id. Our review of an order granting a motion to dismiss is plenary.
Stover argues that the circuit court erred by dismissing Count I of his complaint because he made out a prima facie case under the provisions of Kentucky's Whistleblower Act. We agree.
The Department and Metro Government contend that an action that depends upon the reporting of workplace health and safety violations cannot be filed pursuant to Kentucky's Whistleblower Act but must instead be brought pursuant to the provisions of KRS 338.121 (Kentucky's Occupational Safety and Health Act) because the OSHA statute preempts the field of OSHA discrimination and retaliation claims. We disagree.
KRS 338.121(3)(a) prohibits the discharge or discrimination against an employee where such employee:
filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or herself or others of any right afforded by this chapter.Moreover, the Act creates both a forum and a civil remedy for an employee who believes that he has been discharged or discriminated against in violation of KRS 338.121(3)(a). The Act further provides as follows:
Any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of this subsection may, within a reasonable time after such violation occurs, file a complaint with the commissioner alleging such discrimination. . . . If upon such investigation, the commissioner determines that the provisions of this subsection have been violated, he or she shall issue a citation to the employer which may be challenged or contested in accordance with the provisions of this chapter and the review commission may order all appropriate relief including rehiring and reinstatement of the employee to his or her former position with back pay.KRS 338.121(3)(b).
Citing the holdings in Grzyb v. Evans, 700 S.W.2d 399 (Ky. 1985), and Benningfield v. Pettit Environmental, Inc., 183 S.W.3d 567 (Ky. App. 2005), the appellees observe that where a statute makes termination of employment under a specific set of facts unlawful, it creates a public policy and that where the statute provides a civil remedy, that public policy may be enforced only according to the statutory remedy provided. However, a more thorough analysis reveals an error inherent in the argument advanced by the government agencies.
In Kentucky, an employment relationship is generally terminable at will. Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730 (Ky. 1983). Thus, "[a]n employer may discharge his at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible." Id. at 731. Nevertheless, a former employee may state a common law claim for wrongful discharge where he can show that his termination was contrary "to a fundamental and well-defined public policy as evidenced by existing law. . . ." Id. (quoting Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834, 835 (1983)).
A plaintiff cannot state a claim for common law wrongful discharge where the violation of public policy upon which his termination was based is defined by a statute and where that statute also provides the structure for pursuing a claim for any discriminatory acts undertaken in conjunction with the statute. In that case, the plaintiff is limited to the remedy provided by the statute that prohibits the discharge or discrimination. Statutory remedies preempt recourse to common law.
However, Stover did not attempt to state a claim for common law wrongful discharge in Count I of his complaint. He did not allege that the public policy that his termination purportedly violated is defined by the provisions of our OSHA statute. Instead, he filed an action for the violation of the provisions of the Whistleblower Act itself.
In Count I of his complaint, Stover specifically alleged that termination of his employment (after he threatened to file an OSHA complaint) violated provisions of Kentucky's Whistleblower Act. KRS 61.102 prohibits any reprisal against a public employee:
who in good faith reports, discloses, divulges, or otherwise brings to the attention of . . . [an] appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance . . . or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety.The purpose of the statute is "to discourage wrongdoing in government, and to protect those who make [such wrongdoing] public." Workforce Dev. Cabinet v. Gaines, 276 S.W.3d 789, 793 (Ky. 2008).
Once the claimant shows by a preponderance of the evidence that the "disclosure was a contributing factor in the personnel action[,]" the burden of proof shifts to the state employer "to prove by clear and convincing evidence that the disclosure was not a material fact in the personnel action." KRS 61.103(3). Disclosure is defined at KRS 61.103(1) as "a person acting on his own behalf, or on behalf of another, who reported or is about to report, either verbally or in writing, any matter set forth in KRS 61.102." (Emphasis added.) Disclosure occurs not only when a report is actually made, but also when the threat of a report is made. Consolidated Infrastructure Management Authority, Inc. v. Allen, 269 S.W.3d 852, 856 (Ky. 2008).
Stover stated to his supervisor his intention to contact either federal or state OSHA authorities to report the presence of asbestos in his workspace if it was not promptly remediated. That statement constitutes a threat to report and a disclosure within the meaning of KRS 61.102 and 61.103. Stover alleged that he was a public employee, and he has made out a prima facie case of wrongful termination under the provisions of Kentucky's Whistleblower Act. That claim was not preempted or extinguished by the remedy provided by KRS 338.121(3)(b). Thus, we hold that the trial court erred in dismissing Count I.
Next, Stover argues that the circuit court erred by dismissing Count II of his complaint on grounds of sovereign immunity. We disagree.
In Count II of his verified complaint, Stover did assert a claim for common law wrongful discharge. He alleged that he had been discharged for having made an open records request in November 2016 -- a clear violation of public policy.
In Grzyb, supra, the Supreme Court of Kentucky adopted the position of the Michigan Supreme Court in Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692, 316 N.W.2d 710 (1982). In that case, the Michigan court held that only two situations exist where "grounds for discharging an employee are so contrary to public policy as to be actionable" absent "explicit legislative statements prohibiting the discharge . . . ." 316 N.W.2d at 711. First "where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment"; second, "when the reason for a discharge was the employee's exercise of a right conferred by a well-established legislative enactment." 316 N.W.2d at 711-12.
In the case before us, Stover alleged that he was discharged on the basis of his decision to exercise a right conferred by statute -- the Kentucky's Open Records Act. In KRS 61.871, the General Assembly declared that the public interest was served by the free and open examination of public records even where such examination caused inconvenience or embarrassment to public officials. Consequently, we conclude that to the extent that Stover was discharged on the basis of his exercise of that right, his discharge is so contrary to public policy as to be actionable -- were it not for sovereign immunity, that is.
Sovereign immunity is a common law concept recognized as an inherent attribute of the state. Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695 (1951); Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001). Our Constitution permits the General Assembly to waive the Commonwealth's inherent immunity either by direct appropriation of money from the state treasury and/or by specifying where and in what manner the Commonwealth may be sued. See Reyes v. Hardin County, 55 S.W.3d 337 (Ky. 2001).
While the Department and Metro Government concede that Stover had a statutory right to make the open records request, they contend that no statutory provision expressly waives their immunity from suit for his wrongful discharge on the basis of his exercise of that right. We agree. Moreover, Stover has not contended that the government's immunity has been impliedly waived in any manner, and we perceive none.
Consequently, we conclude, as a matter of law, that the Jefferson Circuit Court erred by dismissing Stover's claim asserted under Kentucky's Whistleblower Act. Therefore, we vacate in part and remand for further proceedings with respect to Count I. We affirm with respect to the dismissal of Stover's common law wrongful discharge claim under Count II.
ALL CONCUR. BRIEFS AND ORAL ARGUMENT
FOR APPELLANT: Oliver H. Barber, Jr.
Louisville, Kentucky BRIEF FOR APPELLEES: I. Joel Frockt
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLEES: Annale R. Taylor
Louisville, Kentucky