Opinion
NO. 2019-CA-001152-MR
05-15-2020
LAINIE KAISER APPELLANT v. ANDY BESHEAR, KENTUCKY ATTORNEY GENERAL APPELLEE
BRIEFS FOR APPELLANT: Shane C. Sidebottom Covington, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General Carmine G. Iaccarino Heather L. Becker Assistant Attorneys General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 16-CI-01225 OPINION
AFFIRMING
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BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. GOODWINE, JUDGE: Appellant, Lainie Kaiser, appeals a Franklin Circuit Court order granting Appellee, Andy Beshear's, motion for summary judgment. Kaiser argues the trial court incorrectly ruled that she could not demonstrate a violation of the Kentucky Whistleblower Act. After thorough review, we find the claim fails as a matter of law. As such, we affirm.
BACKGROUND
Kaiser was admitted to practice law in Kentucky in 2005. In August 2014, she was hired by the Office of the Attorney General ("OAG") in the Office of Civil and Environmental Law. She served in a non-merit, non-supervisory role at the pleasure of the Attorney General. Her starting salary was approximately $60,000 and $63,636 at the time of her resignation. There were six other attorneys in the Office of Civil and Environmental Law: four men and two women.
Kaiser was hired under former Attorney General Jack Conway. Beshear was elected as Attorney General in November 2015.
La Tasha Buckner became Kaiser's supervisor in January 2016 upon her appointment as OAG's Civil Executive Director. In a December 2015 administration transition meeting then outgoing Civil Executive Director Ben Long advised Buckner that Kaiser was the "weak link" within the department and her work performance was subpar.
Despite Long's comments, Buckner retained Kaiser because she " . . . wanted to give everyone a fair chance and get to observe their work for myself." Record ("R.") at 457. Buckner soon discovered that Kaiser did not seem to understand basic litigation in OAG when she emailed Buckner to ask if OAG was "intervening" in a case in which the Commonwealth was the only named defendant and therefore OAG was already representing the Commonwealth. R. at 471-72. At that point, Kaiser had been working in the OAG litigation group over 18 months.
Buckner next observed problems with Kaiser's work product in a draft opinion Kaiser submitted for review in February 2016. R. at 446. Buckner and then-Assistant Deputy Attorney General Mitchel Denham discussed the deficiencies in the draft opinion with Kaiser on February 8, 2016. Buckner followed up with Kaiser via email, giving her instructions on how to revise the draft.
During the February meeting, Kaiser requested a merit raise. At that time, Kaiser's salary was over $63,000—one of the highest salaries for non-merit, non-supervisory attorneys in the office. In contrast, two of her male coworkers, Shan Dutta and Matt James, made $48,677. Their salaries were the lowest of all the attorneys in OAG. Kaiser's supervisors denied her request for a merit raise, citing concerns regarding the General Assembly's prospective biennium budget and then-Governor Bevin's proposed budget cuts for constitutional offices.
In April 2016, Buckner assigned Kaiser to defend the Kentucky Board of Nursing before the Personnel Board in an employment discrimination case brought by a pro se litigant ("KBN case"). Kaiser had been defending the Department of Military Affairs in a case involving allegations of gender discrimination by a former employee since May 2015. R. at 517. Buckner believed the KBN case was within Kaiser's abilities. Following her assignment to the KBN matter, Kaiser sought and received assistance from Buckner, Bryan Judy, and Gordon Slone. However, her performance was still deficient.
Two months after Kaiser's initial request for a merit raise, the General Assembly passed the budget and Buckner recommended raises for Dutta and James, increasing their salaries to just over $51,000. That same month, Kaiser—yet again—requested a raise. Buckner denied the request. After discovering her two male colleagues received raises, Kaiser approached Buckner and Denham for the third time in six months and asked for a merit raise.
During a July 2016 meeting, Kaiser disclosed to Buckner that she was aware of other attorneys in their division that received raises. And Kaiser further claims she reported concerns of perceived differences in pay between her male and female colleagues to Buckner. Buckner told Kaiser that Dutta and James were the two lowest paid attorneys in the litigation group and that they remained the two lowest paid attorneys even after their raises. According to Buckner, she and Denham recall discussing pay increases, but she disputes Kaiser's assertion that they discussed differences in pay between male and female attorneys. Once again, Buckner denied Kaiser's request for a raise.
It is important to note that Kaiser was making over $12,000 more than Dutta and James at the time. Similarly, Elizabeth Hatchett, a female, non-merit attorney in the same division, was receiving over $60,000 a year.
That same month, Kaiser and her colleague, Bryan Judy, travelled to Pikeville, Kentucky, for a deposition. Kaiser worked with Judy on other cases over the past year and she specifically asked him to be co-counsel for her current case. During the trip, Kaiser texted Ryan Halloran, Judy's supervisor, telling him Judy was acting inappropriately. Specifically, she told him that "[Judy] got the name of one of [the] witnesses wrong. He didn't really want to talk about the 'case. . . . He texted. He called his daughters. [And] [h]e yelled." R. at 838. Further, she said Judy made a rude comment to her about breastfeeding, but when later questioned about why she did not report the incident, responded that she "could not show it was a one-off thing." R. at 832-33. Kaiser claims to have notified her division's Attorney Manager, Travis Mayo, about Judy's behavior.
Kaiser did not report Judy's behavior to Buckner, Denham, or any other individual involved in the decision to terminate her employment.
Mayo does not recall the meeting with Kaiser but remembered her complaining about Judy during the deposition trip to Pikeville, Kentucky. Mayo ultimately testified that Kaiser's work product was disorganized and that she was not up to par with her office peers as a litigant.
On August 8, 2016, Buckner met with Kaiser to discuss the KBN case. Kaiser claimed she attended the meeting for guidance on her case but was instead "grilled" about the case. During the meeting, Kaiser stumbled through the questions posed to her, failing to convey competent knowledge of the case or her strategy for the hearing, which was merely two weeks away.
Buckner met with Judy to discuss Kaiser's work performance on the KBN case. Judy told her that Kaiser poorly conducted the depositions for their cases. By August 2016, Buckner had received concerns about Kaiser's work performance from Long, Slone, and Kaiser's division manager, Mayo. Buckner discussed with Kaiser her work performance deficiencies on several occasions. The day after talking to Judy, Buckner met with Kaiser and conveyed her dissatisfaction with her work product. Shortly after meeting with Buckner, Kaiser suffered a panic attack while at the office.
During the incident, Kaiser met with Maureen Travers, an OAG human resources employee. Interestingly, Travers had been trained to recognize symptoms of panic attacks. While talking, Kaiser told Travers that men in her office received raises and were treated differently than their female counterparts. Further, she informed Travers that Dutta received preferential treatment solely because he was a man, interacting with Judy made her feel uncomfortable, and Buckner was being hard on her.
Kaiser talked to Travers approximately two hours. Travers described the conversation as erratic. At no time did Kaiser make a complaint about perceived gender discrimination or other ethical concerns. Rather, she confided in Travers that she was afraid of losing her job because of her job performance. After their discussion, Travers did not discuss their conversation with anyone and did not undergo any inquiry into any of Kaiser's claims.
On August 18, 2016, Denham and Buckner presented Kaiser with a termination letter stating her services were no longer required. However, Buckner and Denham advised Kaiser that she could take a few days to consider whether she would prefer to tender her resignation so that her personnel file would reflect a voluntary separation rather than a termination. Five days later, Kaiser emailed a written resignation letter to Buckner. Kaiser testified that shortly before she resigned, she was aware Buckner was unhappy with her work performance.
Kaiser's resignation letter made no mention of perceived gender discrimination or inequality. R. at 428. Instead, it sought to continue her relationship with the OAG, seeking the opportunity to serve as a consultant: "If the Attorney General would like to use me as a resource for future cases, I would welcome the opportunity to serve as a consultant on e-Discovery issues." Id. OAG accepted Kaiser's resignation.
Three months later, Kaiser filed suit against OAG, alleging gender discrimination and wrongful termination in violation of the Kentucky Whistleblower Act. The trial court subsequently granted OAG's motion for summary judgment, ruling Kaiser could not prevail as a matter of law. This appeal followed.
STANDARD OF REVIEW
Our standard of review on appeal of a summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56.03. The trial court must view the record "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 Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id.
Kentucky Rules of Civil Procedure.
Summary judgment is an extraordinary remedy that should be "cautiously applied and should not be used as a substitute for trial." Id. at 483. Instead, summary judgment is only appropriate "to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985) (quoting Roberson v. Lampton, 516 S.W.2d 838, 840 (Ky. 1974)). "Impossible," of course, should be interpreted in "a practical sense, not in an absolute sense." Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992).
An appellate review of summary judgment does not involve fact-finding since only legal questions must be resolved. Davis v. Scott, 320 S.W.3d 87, 90 (Ky. 2010) (citing 3D Enterprises Contracting Corp. v. Louisville and Jefferson County Metro. Sewer Dist., 174 S.W.3d 440, 445 (Ky. 2005)). Moreover, an appellate court need not defer to the trial court's decision on summary judgment and reviews the issues de novo. See Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).
ANALYSIS
At the outset, we note there is only one issue before us that warrants review on the merits, that being Kaiser's whistleblower claim. On appeal, Kaiser does not argue, or even mention, her gender discrimination claim. This is highlighted in her table of contents and argument, where the only position she asserts is "APPELLANT MADE GENUINE WHISTLEBLOWER DISCLOSURES IN HER REPORTS TO HER SUPERIORS AND HUMAN RESOURCES." Brief of Appellant, page iii (emphasis added).
From a thorough review of her argument, Kaiser clearly did not pursue her gender discrimination argument on appeal—therefore, she waived it. See Garland v. Commonwealth, 458 S.W.3d 781, 785 (Ky. 2015) ("Arguments not pursued on appeal are deemed waived."); Cook v. Popplewell, 394 S.W.3d 323, 327, n.5 (Ky. 2011) (holding additional claims alleged at trial were waived because appellant did not pursue them on appeal).
We now turn to Kaiser's whistleblower claim. Kaiser argues she made three reports to her superiors and human resources which garnered protection under the Kentucky Whistleblower Act: (1) reporting preferential treatment of male employees over female employees to Buckner and Denham; (2) reporting instances of inappropriate behavior by Judy to Halloran; and (3) reporting concerns with her "workload, work stress, and the preferential treatment that male AG employees received over female AG employees in relation to pay and conditions of employment" to Travers.
To demonstrate a violation of the Kentucky Whistleblower Act, an employee must establish the following four elements:
(1) the employer is an officer of the state; (2) the employee is employed by the state; (3) the employee made or attempted to make a good faith report or disclosure of a suspected violation of state or local law to an appropriate body or authority; and (4) the employer took action or threatened to take action to discourage the employee from making such a disclosure or to punish the employee for making such a disclosure.Davidson v. Commonwealth, Department of Military Affairs, 152 S.W.3d 247, 251 (Ky. App. 2004) (footnote omitted); KRS 61.102. This is an all or nothing test, so each factor must be fulfilled, and the employee must also "prove by a preponderance of evidence that 'the disclosure was a contributing factor in the personnel action.'" Thornton v. Office of Fayette County Attorney, 292 S.W.3d 324, 329 (Ky. App. 2009) (citations omitted). If proven, the burden then shifts to the Commonwealth "to prove by clear and convincing evidence that the disclosure was not a material fact in the personnel action." Id. (citation omitted); see also KRS 61.103(3). The parties concede that all three of Kaiser's claims meet the first two factors. Thus, we now address in turn whether Kaiser's three claims fulfill the test's remaining two factors. 1. Report of Preferential Treatment Based on Gender
Kentucky Revised Statutes.
Like the trial court, we quickly dispense with Kaiser's first claim under Pennyrile Allied Cmty. Servs., Inc. v. Rogers, 459 S.W.3d 339, 346 (Ky. 2015). Kaiser argues that even though "Buckner and Denham were wrongdoers[,] [that fact] does not impede [her] ability to report actual or suspected fraud, mismanagement, or violation of law" to them. Reply Brief of Appellant, p. 3. In doing so, she surreptitiously cites selected portions of Pennyrile out of context to bolster her contention. Specifically, she uses this quotation:
In Gaines, [276 S.W.3d 789 (Ky. 2008)] we held that the phrase in KRS 61.102, "any other appropriate body or authority," means a body or authority with the power to remedy or report the perceived misconduct. We went on to say that the whistleblower statute applied even if the "appropriate authority" was within the agency where the wrongdoing was occurring.Pennyrile, 459 S.W.3d at 345-46 (citations omitted). She asserts: "The Pennyrile case states that internal disclosures are reports so long as the disclosures are made to the appropriate body or authority . . . even if when the disclosures were made were in fact to the wrong doers." Reply Brief of Appellant, p. 3. But a closer look at Pennyrile proves this to be a gross mischaracterization. Mere sentences later, the Court opined:
It is significant though, that in Gaines, the internal report was not made to the alleged wrongdoers . . . . In the instant case, the perceived wrongdoer, Gibbs, was the highest-ranking person at the meeting. Rogers made no effort to bring her claim to the attention of anyone with the power to remedy or report Gibbs's behavior. Rogers was merely expressing to her boss her displeasure about a practice. She did not intend to "report," "divulge," or "disclose" anything by discussing this practice with the offending boss in front of her co-workers. An otherwise at-will employee cannot gain whistleblower status, and the protections that come with that status, by simply complaining to her boss about what she perceives as his misconduct.Pennyrile, 459 S.W.3d at 346 (emphasis added). Clearly, Kentucky law does not provide employees whistleblower status for reporting alleged misconduct to their supervisory wrongdoer. Therefore, Kaiser's first claim fails as a matter of law. 2. Report of Judy's Inappropriate Behavior to Ryan Halloran
Kaiser reported Judy's alleged wrongdoing on their trip to Pikeville to Halloran. As previously stated, she reported that "[Judy] got the name of one of [the] witnesses wrong. He didn't really want to talk about the case. . . . He texted. He called his daughters. [And] [h]e yelled." R. at 838. And she said Judy made a rude comment to her about breastfeeding. R. at 832-33.
Even when viewing these statements as true, and in the light most favorable to Kaiser, we agree with the trial court that such complaints do not rise to the level of an actual or suspected violation of any law or statute required for a whistleblower claim. There is likewise no indication that this "report" had a bearing on her subsequent resignation. In fact, Kaiser never reported Judy to Buckner or Denham, rather reporting the alleged wrongdoing to Judy's supervisor.
As it stands, the record indicates that Kaiser worked with Judy on other occasions after the incident up to the point of her resignation, never asked to be reassigned, and admitted to asking Judy for help on some of her last cases. Given these facts, we agree that Kaiser's report does not give rise to the type of claim protected under the Kentucky Whistleblower Act, and any reporting on Kaiser's part regarding these facts did not bear on Buckner's decision to terminate her. Therefore, Kaiser's second claim fails as a matter of law. 3. Report to Travers Regarding Gender Discrimination and Judy's Wrongdoing
Finally, Kaiser made a third alleged whistleblower complaint to Travers. In doing so, she told Travers that: (1) men in her office received raises and were treated differently than their female counterparts; (2) Dutta received preferential treatment solely because he was a man; (3) interacting with Judy made her feel uncomfortable; and (4) Buckner was being hard on her.
The trial court notes some factual disputes regarding the nature and content of Kaiser's report to Travers. But it ultimately found these disputes immaterial—and we agree.
Travers indicated that she did not act on the report. She testified that she did not reveal the substance of her conversation with Kaiser to anyone and was not involved in the decision to terminate her. These are undisputed facts. While Kaiser alleges her report to Travers bore significance on Buckner's ultimate decision to terminate her, she has zero factual basis to do so.
As the trial court noted, the causal link between this conversation and her resignation can only be based on its temporal proximity to her resignation nine days later. The trial court further noted:
It is abundantly clear from the record in this case that Ms. Kaiser's allegations of misconduct to Buckner, Denham, Halloran, Mayo or Travers, all concerned garden variety personnel disputes between Ms. Kaiser and her co-workers.
None of Ms. Kaiser's reports concerned any allegations of waste, fraud, mismanagement or other matters that are actionable under the Whistleblower Act. Garden variety personnel disputes between co-workers simply do not rise to the level of Whistleblower Act protection. See Moss v. Kentucky State University, [465 S.W.3d 457 (Ky. App. 2014)].R. at 868.
Based on this, we hold that Kaiser did not, and cannot, "prove by a preponderance of evidence that 'the disclosure was a contributing factor in the personnel action.'" Thornton, 292 S.W.3d at 329 (citations omitted). Finally, Kaiser's third claim fails as a matter of law.
CONCLUSION
For the foregoing reasons, we affirm the Franklin Circuit Court's order granting summary judgment in favor of the Office of the Attorney General.
ALL CONCUR. BRIEFS FOR APPELLANT: Shane C. Sidebottom
Covington, Kentucky BRIEF FOR APPELLEE: Daniel Cameron
Attorney General Carmine G. Iaccarino
Heather L. Becker
Assistant Attorneys General
Frankfort, Kentucky
Notice of substitution of counsel entered on January 30, 2020. --------