Opinion
NO. 2014-CA-000057-MR
12-24-2014
ROBERT O. GILBERT APPELLANT v. NORTON HEALTHCARE, INC. APPELLEE
BRIEFS FOR APPELLANT: Robert O. Gilbert, Pro se Louisville, Kentucky BRIEF FOR APPELLEE: Jeremy S. Rogers Alina Klimkina Vanessa N. Rogers Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 09-CI-012315
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Robert O. Gilbert appeals from a summary judgment of the Jefferson Circuit Court in favor of Norton Healthcare, Inc. The trial court concluded Gilbert's claim for wrongful termination was preempted by Kentucky Revised Statutes (KRS) 338.121, which provides an administrative procedure as the exclusive remedy for his alleged termination in retaliation for reporting violations of Kentucky's Occupational Health and Safety Act (KOSHA). We agree with the circuit court and affirm.
Gilbert was hired to work in Norton's Environmental Services Department. His job duties included removing trash from rooms and areas throughout the hospital and taking trash to the dumpster. He received a copy of Norton's Environmental Services Department's dress code, which permitted a long-sleeve shirt to be worn under a uniform but required the shirt to be black. He also received Norton's violence policy that prohibited violent, threatening, harassing or intimidating behavior and advised that such conduct could result in termination. The policy further stated that employees accused of such conduct would be placed on administrative leave pending an investigation.
On December 17, 2008, Gilbert arrived at Norton wearing an orange long-sleeved undershirt. His supervisor, Michele Cambron, instructed him to remove the shirt or to go home. Cambron testified at her deposition that Gilbert became angry and she felt threatened and intimidated. She opened the door to her office and Gilbert left cursing and screaming. Cambron then notified the Environmental Services Department manager and called security. Gilbert was placed on administrative leave.
Immediately following the incident, employee relations manager Randy Butler unsuccessfully attempted to contact Gilbert. On January 5, 2009, Butler sent Gilbert a letter stating Gilbert would be terminated if he did not contact Norton by 4:00 p.m. on January 12, 2009.
Gilbert's only contact with Norton during the time period occurred on January 6, 2009, when Gilbert faxed a leave of absence request form. After Gilbert made no attempts to contact Butler, Norton terminated Gilbert's employment on January 12, 2009.
While on administrative leave, Gilbert filed a complaint with the Kentucky Labor Cabinet, Division of Occupational Safety and Health Compliance (the Division). In his complaint, Gilbert alleged his supervisor instructed him to remove his undergarment and work in an unheated area in freezing temperatures.
The Division conducted an investigation and determined no citation was warranted. It advised Gilbert to immediately notify the Division if he was discriminated against or punished for his job-related safety and health activities.
Gilbert then sent a letter to the Division stating that four days after filing his KOSHA complaint, he suffered a nerve and spinal injury that necessitated leave under the Federal Family and Medical Leave Act (FMLA). He then stated that Norton "denied my FMLA request and on 2/5/09 informed me that I was no longer with the company. This appears to be a violation of KRS 338.121."
On February 26, 2009, the Cabinet informed Gilbert by letter that it lacked authority to act on Norton's denial of Gilbert's FMLA request. The letter stated: "KRS 338.121 provides protection to workers who have exercised rights under the Occupational Safety and Health Act." It suggested Gilbert contact an attorney or the Human Rights Commission.
On March 5, 2010, Gilbert again filed an action with the Division alleging he was terminated as a result of his participation in a safety and health-related complaint against Norton in violation of KRS 338.121(3)(a). The Division dismissed Gilbert's complaint and advised him of his right to appeal to the Secretary of the Labor Cabinet.
On July 17, 2010, Gilbert requested that the Secretary review his case. On October 1, 2010, the Secretary sent Gilbert written notification that there was no basis for reversing the Division's dismissal of his complaint.
In addition to filing administrative complaints, Gilbert commenced this action in the Jefferson Circuit Court on December 30, 2009. He alleged he was terminated in retaliation for reporting Norton to the Division in violation of the public policy of this Commonwealth.
At the close of discovery, Norton moved for summary judgment. On December 19, 2013, the circuit court granted Norton's motion, holding Gilbert's wrongful termination claim was preempted by KRS 338.121(3). Specifically, the circuit court held that a wrongful termination claim based on public policy is not actionable when the statute creating the public policy provides both a cause of action and a remedy. This appeal followed.
Our standard of review on appeal of a summary judgment is whether the trial court correctly found there were "no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03. "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky.App. 2001).
Generally, employment relationships in Kentucky are terminable at will meaning "an employer may discharge his at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible." Firestone Textile Co. v. Meadows, 666 S.W.2d 730, 731 (Ky. 1983). An exception to the general rule is that if an employee's termination violates a public policy clearly defined by statute, the employee may file a claim for wrongful discharge. Grzyb v. Evans, 700 S.W. 2d 399, 400 (Ky. 1985). However, the exception is limited: "Where the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute." Id. at 401.
KRS 338.011 states that the purpose of KOSHA is "to promote the safety, health and general welfare of its people by preventing any detriment to the safety and health of all employees, both public and private, covered by this chapter[.]" To further that purpose, KRS 338.121(3)(a) states:
No person shall discharge or in any manner discriminate against any employee because such employee has 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[.]The language of the statute is unequivocal: No employee shall be terminated for filing a complaint pursuant to the provisions of KOSHA. However, the statute not only creates the public policy but also provides the remedy for its violation. KRS 338.121(3)(b) states:
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.In Benningfield v. Petit Envtl., Inc., 183 S.W.3d 567, 571 (Ky.App. 2005), the Court held that KRS 338.121 provides "both the unlawful act and specifies the civil remedy available to aggrieved parties" and, therefore, preempts any wrongful discharge claim.
Gilbert filed a complaint with the Division alleging certain health and safety violations. The Division determined an investigation was not warranted. He then filed a complaint alleging he was terminated after filing a FMLA request which the Division informed him was not a basis for review under KRS 338.121. More than a year later, he filed a second administration action with the Division and again his complaint was dismissed. Gilbert could only seek judicial relief as afforded by statute and seek review by filing an appeal of any final agency action in the Franklin Circuit Court within 30 days of the agency's final order. KRS 338.091(1). Gilbert is limited to the administrative remedy set forth by the applicable statute and he cannot maintain an independent civil action for wrongful termination.
Based on the foregoing, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert O. Gilbert, Pro se
Louisville, Kentucky
BRIEF FOR APPELLEE: Jeremy S. Rogers
Alina Klimkina
Vanessa N. Rogers
Louisville, Kentucky