WRONGFUL DISCHARGE EMPLOYMENT: FOLLETT V. GATEWAY REGIONAL HEALTH SYSTEM (COA 7/20/2007)

FOLLETT V. GATEWAY REGIONAL HEALTH SYSTEM
EMPLOYMENT:  WRONGFUL DISCHARGE CLAIM, EMPLOYMENT AT WILL
2006-CA-000855
PUBLISHED: VACATING AND REMANDING
PANEL: VANMETER PRESIDING; THOMPSON, PAISLEY CONCUR
COUNTY: MONTGOMERY
DATE RENDERED: 7/20/2007

This is an excellent primer on the issue of wrongful discharge based upon public policy against termination for refusal to violate the law. It delineates the three criteria necessary to maintain a claim and gives an analysis by the COA to the specific facts in the case. It provides a great yardstick to measure against a potential case. It is a must read. 

Sharon Follett appeals from the Montgomery Circuit Court’s order granting summary judgment in favor of Gateway Regional Health System, Inc. (Gateway) and its CEO, Patrick Romano, on Follett’s claim of wrongful discharge. Follett, then the Director of Nursing at Mary Chiles Hospital, claimed she had been wrongfully discharged for her actions regarding two situations which occurred at the hospital during the year prior to her discharge.  The first involved her reporting suspicions that an emergency room doctor was under the influence of alcohol while on duty. The other situation involved her involvement in reporting suspected emergency room billing irregularities at the hospital.

Under Kentucky law, an employer may ordinarily “discharge his at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible.”  There is a narrow public policy exception to this “terminable at-will” doctrine, however, whereby an employee has a cause of action for wrongful discharge when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law evidenced by a constitutional or statutory provision. An employee cannot be fired for refusing to violate the constitution or a statute.

As Follett alleges that she was discharged contrary to this explicit legislative statement prohibiting the discharge of employees in certain situations, she has based her claim upon an exception to the employment-at-will doctrine.

As there is rarely a case where a plaintiff has a “smoking gun” to prove improper motive, a plaintiff must frequently “rely on circumstantial evidence and the inferences that can be drawn therefrom to make his or her case.”

Either KRS 311.990(6) or KRS 205.8465 may form the basis for a wrongful discharge claim, and thus, genuine issues of material fact exist as to whether Follett was engaged in a statutorily-protected activity when she advised her staff members to report the matter.

Considering all of the circumstances, Follett has alleged facts to establish a sufficient connection between her protected activity and her discharge, with the result that the circuit court erred by granting summary judgment against her.

Finally, Follett presented evidence from which a jury could disbelieve Romano’s proffered reason for discharging her. Romano called Follett shortly before she was to leave on vacation in February 2003 and told her not to complete any additional pay raise forms until they discussed the matter.

Based upon all of this evidence, a jury reasonably could infer that Follett’s involvement in reporting the billing irregularities, and her involvement in reporting the physician issue to the investigator, were substantial and motivating factors but for which Follett would not have been discharged. Thus, genuine issues of material fact exist as to whether she was wrongfully discharged.

By Paul Schurman and Michael Stevens

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