EMPLOYMENT: Wrongful termination, releases, workers comp: MCCOWN V. GRAY KENTUCKY TELEVISION, INC. (COA 10/31/2008)

McCown appeals the TC's grant of a partial directed verdict and earlier partial summary judgment in favor of Gray Kentucky Television on his claims stemming from his termination by Gray. McCown had worked in the technical department of WYMT, a local TV station owned by Gray. During his employment, Gray adopted a new substance abuse policy for its employees that required them to sign a consent and release form for random drug screens. McCown refused and after consulting their counsel again Gray again demanded he sign the consent and release. When he still refused, McCown was fired. McCown then filed a wrongful termination lawsuit and after discovery was completed, the TC granted summary judgment on the punitive damages claim. Following the close of McCown's proof on his remaining wrongful termination claim, the TC granted a directed verdict to Gray.

On appeal, McCown first argued that the TC's grant of a directed verdict was contrary to the standard in Civil Rule 50.01. While McCown was an at-will employee, he argued that his case fell under one of the two carved-out exceptions that nevertheless permitted him to maintain his claim when an employee is fired for exercising a legal right conferred by statute. That right, McCown argued, was not to be forced to waive any rights he may have for personal injury stemming from the physical performance of the drug screens since he believed the release effectively did so as written. The TC concluded that the release language did not require McCown to waive any rights under the workers' compensation statutes nor did it otherwise require the release of any claims arising out of the actual taking of blood samples. The COA agreed and went one step further by noting the strict requirements placed on a preinjury release by Kentucky law and demonstrating that the Gray release contained none of the elements of a valid preinjury release. Thus, the COA concluded that Gray did not violate KRS 336.700 by requiring its employees to sign the consent and release form and that the TC correctly granted a directed verdict on McCown's wrongful termination claim.

Digested By: Chad Kessinger Schiller Osbourn Barnes & Maloney