Kentucky Whistleblower Act; State Agency; Statutory Interpretation — WORKFORCE DEVELOPMENT CABINET (DIV. OF UNEMPLOYMENT INS.) v. MARY C. GAINES (SC 11/26/2008)

WORKFORCE DEVELOPMENT CABINET (DIV. OF UNEMPLOYMENT INS.)
v. MARY C. GAINES
TORTS:  Kentucky Whistleblower Act; State Agency; Statutory Interpretation
 
2005-SC-000965-DG.pdf
PUBLISHED: AFFIRMING
OPINON BY SCHRODER (Special Justice Royse dissents by sep. op. in which Minton
and Special Justice Stewart Conner join)  Abramson, Noble not sitting.
FRANKLIN COUNTY
DATE RENDERED: 11/26/2008

Appellee worked for the Jefferson County office of the Division of Unemployment Insurance for many years, advancing from office assistant to auditor and eventually retiring. During that time, however, she alleged gender discrimination and retaliation and file suit against the Workforce Development Cabinet in 1998. According to appellee, after the Cabinet settled her suit, her work environment deteriorated. In 2002 she was informed she would be transferred to a less desirable local office; she filed a second suit. 

According to appellee, in 2003 she witnessed her supervisor and another employee throwing away confidential and proprietary information that may have had a bearing on pending litigation in a publicly accessible dumpster. Appellee contacted her attorney and asked him to report the purge. The same day, her attorney contacted an attorney for the Cabinet, who contacted the Department Commissioner, who conducted an investigation finding no wrongdoing. Four days later, four managers presented appellee with a letter from the Department Commissioner informing her of her transfer to the less desirable office. She was barred from the downtown office and her keys and security card confiscated. She subsequently amended her complaint to include a whistleblower claim under KRS 61.102. 

The trial court granted summary judgment to the Cabinet on the whistleblower and gender discrimination claims; a jury found for the Cabinet on the retaliation claim. Appellee appealed on the whistleblower claim and the Court of Appeals reversed because an internal report to the Cabinet qualifies as a report to "any other appropriate body or authority" under the whistleblower act. 

This case is purely a matter of statutory interpretation. The Supreme Court holds that "any other appropriate body or authority" should be read to include any public body or authority with the power to remedy or report the perceived misconduct. … Generally, the most obvioud public body with the power to remedy perceived misconduct is the employee's own agency (or the larger department or cabinet). … The evidence in this case presents a genuine issue of material fact as to whether there was a causal connection between [Appellee's] report and her transfer. 

Cunningham, Scott, and Venters, JJ. Concur. Special Justice David T. Royse dissents by separate opinion in which C.J. Minton and Special Justice Stewart E. Conner join. Abramson and Noble, JJ. not sitting.

Digested by John E. Hamlet

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