Opinion
NO. 2016-CA-000885-MR
06-08-2018
JAMIE SMITH APPELLANT v. BOARD OF EDUCATION OF BOURBON COUNTY, KENTUCKY AND AMY BAKER, IN HER OFFICIAL CAPACITY AS SUPERINTENDENT OF BOURBON COUNTY SCHOOL SYSTEM, WHO WAS SUBSTITUTED FOR LANA FRYMAN, IN HER OFFICIAL CAPACITY AS SUPERINTENDENT OF THE BOURBON COUNTY SCHOOL SYSTEM APPELLEES
BRIEF FOR APPELLANT: Jeffrey S. Walther Lexington, Kentucky BRIEF FOR APPELLEES: Sam Burchett Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOURBON CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
ACTION NO. 10-CI-00250 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS AND MAZE, JUDGES. COMBS, JUDGE: Jamie Smith appeals from an order of the Bourbon Circuit Court granting summary judgment in favor of the Bourbon County Board of Education and Lana Fryman, superintendent of Bourbon County schools, with respect to Smith's claims under Kentucky's Whistleblower Act (the Act). KRS 61.101, et seq. After our review, we affirm.
Kentucky Revised Statutes.
In June 2008, Smith was hired pursuant to a limited contract to teach science at Bourbon County High School for the 2008-2009 school year. Among other courses, Smith was assigned to teach a class entitled, "Science in Your Community."
For purposes of professional evaluation, Smith was observed in the classroom in September 2008, January 2009, and April 2009 by David Horseman, the high school's assistant principal. Horseman concluded that Smith met the standard for re-employment, but he indicated that Smith needed to acquire additional skills in order both to create and to maintain a suitable learning environment for students and to implement and manage optimal student instruction. Smith agreed with Horseman's evaluation. In May 2009, Smith was hired again pursuant to a limited contract to teach science at Bourbon County High School for the 2009-2010 school year.
On June 15, 2009, Smith met with the high school's interim principal, Lynne Switzer, to advise her that Roger Ison (newly assigned from the middle school to teach science at the high school) was not properly certified to teach Science in Your Community. Smith had acquired her information from the Education Professional Standards Board website. Unsatisfied with the results of this meeting, Smith met with Superintendent Fryman a week later. Following the meeting with Fryman, Smith was re-assigned to teach Science in Your Community. Ison was not assigned to teach Science In Your Community after all, and Ison received a different course assignment.
In November 2009, Smith spoke with Clint Graves, a retired Kentucky State Police trooper, who was employed by the sheriff's department to act as the high school's resource officer. Smith reported to Graves that several female students had complained to her about inappropriate behavior on the part of Ison. Based upon this report, Graves undertook an investigation. Graves believed that Smith's allegations against Ison were unsupported. Graves also concluded that Smith's report to him concerning Ison's behavior was false and that she had not made it in good faith. Nonetheless, Smith claimed that three female students ultimately transferred from Ison's class as a result of the behavior she had suspected.
At some time between September and December 2009, Smith reported to Fryman that Switzer was conveying inaccurate information to students concerning graduation requirements. In December 2009, Smith complained to Fryman about Switzer's proposed changes to the high school's graduation requirements. The proposed changes to the graduation requirements were presented to the Site Based Decision Making Council and were duly approved.
In January or February 2010, at a Site Based Decision Making Council meeting, Smith made a public comment indicating that students should be required to have completed physics and calculus before enrolling in advance placement physics for college credit. By this time, Smith was working on a written growth plan that addressed deficiencies perceived by school administrators. The growth plan incorporated bi-weekly observations of Smith's classroom and monthly conferences with administrators to reflect upon and discuss student instruction.
On April 30, 2010, Smith was notified that she would not be hired to teach in the Bourbon County Schools for the 2010-2011 school year.
On July 27, 2010, Smith filed an action against the Board of Education and the school system's superintendent, Lana Fryman. Smith alleged that her contract had not been renewed in violation of the provisions of Kentucky's Whistleblower Act. She sought both compensatory and punitive damages. On May 19, 2016, the Bourbon Circuit Court granted the motion for summary judgment filed by Fryman and the Bourbon County Board of Education. This appeal followed.
On June 20, 2017, the Bourbon County Board of Education filed a motion with this Court to dismiss the appeal or to strike Smith's brief for her failure to comply with the requirements of CR 76.12(4)(c)(v). Smith filed a timely response. The motion to dismiss the appeal was denied, but the motion to strike her brief was passed to this merits panel. Having reviewed the motion, Smith's response, and the brief, we elect to deny the motion to strike by separate order. We shall consider the appeal on its merits.
Kentucky Rules of Civil Procedure. --------
On appeal, we must determine whether the trial court erred by concluding that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. CR 56.03. Whether summary judgment is appropriate is a question of law. Blevins v. Moran, 12 S.W.3d 698 (Ky. App. 2000). Consequently, we review the trial court's grant of summary judgment de novo. Coomer v. CSX Transp., Inc., 319 S.W.3d 366 (Ky. 2010). Furthermore, we may affirm the trial court for any reason sustainable by the record.
Smith contends that the trial court erred by concluding that there were no genuine issues of material fact and that the Board of Education and Fryman were entitled to judgment as a matter of law. We disagree.
Kentucky's Whistleblower Act provides, in part, as follows:
No employer shall subject to reprisal, or directly or indirectly use, or threaten to use, any official authority or
influence, in any manner whatsoever, which tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of . . . any . . . appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority or a substantial and specific danger to public health or safety. No employer shall require any employee to give notice prior to making such a report, disclosure, or divulgence.KRS 61.102(1).
In order to prove a violation of the provisions of the 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, Dep't of Military Affairs, 152 S.W.3d 247, 251 (Ky.App. 2004), citing Woodward v. Commonwealth, 984 S.W.2d 477, 480-81 (Ky. 1998). The employee must show by a preponderance of evidence that "the disclosure was a contributing factor in the personnel action." KRS 61.103(3). The burden of proof then shifts to the state employer "to prove by clear and convincing evidence that the disclosure was not a material fact in the personnel action." Id.
Smith satisfied the first two elements. With respect to the third required element, Smith claims that she was not rehired as a result of four disclosures: her report to Switzer and Fryman concerning Ison's lack of qualifications to teach Science in Your Community; her report to Graves regarding Ison's alleged sexual misconduct; her report to the Site Based Decision Making Council regarding graduation requirements; and her comment to the Site Based Decision Making Council concerning the prerequisite courses for advanced placement physics. We must examine each disclosure to determine whether it meets the required element; again, the making of a good-faith report of a suspected violation of law.
Smith's report to Switzer concerning Ison's lack of qualifications to teach Science in Your Community is not protected by the Whistleblower Act because it was not the type of information which the statute was designed to protect. In Davidson, supra, we considered the federal counterpart of Kentucky's whistleblower act to determine whether the report of publicly available information could constitute "a disclosure" protected by provisions of the Act. We concluded that it could not.
In this case, Smith confirmed in her deposition that Ison's credentials were a matter of public record and that she had researched that public source to verify his training. Nor was Ison's course assignment a secret. Under the circumstances, Smith's report of this readily available information concerning anticipated future conduct does not constitute a report or disclosure that comes within the ambit of the whistleblower statute. Thus, Smith has failed to meet an element essential to establishing this portion of her whistleblower claim.
Next, we consider Smith's report to Graves, the school's resource officer, regarding Ison's alleged sexual misconduct. The statute prohibits reprisal against an employee who has made or has attempted to make a good faith report of a suspected violation of state or local law to an appropriate body. In this case, Graves concluded that Smith's report had not been made to him in good faith. Graves reached this conclusion after undertaking a complete investigation of the facts and circumstances concerning Smith's allegations against Ison. Thus, Smith failed to establish an element essential to this portion of her whistleblower claim.
Finally, we consider Smith's report to the Site Based Decision Making Council regarding high-school graduation requirements and her comment to the council concerning the prerequisite courses for advanced placement physics. Having carefully reviewed Smith's account of her report and comment to the Site Based Decision Making Council, we are not persuaded that her complaints are included in the list of protected communications covered by the statute. Although the statute specifically provides for disclosure concerning mismanagement, waste, and fraud, Smith's complaints did not rise to that level. Smith's complaints did not concern official wrongdoing of the magnitude addressed by the Whistleblower Act. Instead, they constitute no more than an expression of her dissatisfaction with curriculum decisions. They are not protected by the statute.
Smith has failed to establish that any of her disclosures satisfied an element necessary to constitute a violation of the Whistleblower Act. Therefore, we conclude that the trial court did not err by granting summary judgment to Fryman and the Board of Education with respect to these claims.
The judgment of the Bourbon Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Jeffrey S. Walther
Lexington, Kentucky BRIEF FOR APPELLEES: Sam Burchett
Lexington, Kentucky