Opinion
NO. 2012-CA-001751-MR
02-28-2014
BRUCE RALEY APPELLANT v. OHIO COUNTY SCHOOLS APPELLEE
BRIEF FOR APPELLANT: Don Meade Ben Basil Louisville, Kentucky BRIEF FOR APPELLEE: A.V. Conway, II Hartford, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM OHIO CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, JUDGE
ACTION NO. 07-CI-00207
OPINION
AFFIRMING
BEFORE: CLAYTON, MAZE, AND NICKELL, JUDGES. CLAYTON, JUDGE: The Ohio Circuit Court ordered the Ohio County Schools to reinstate Bruce Raley as a teacher and pay him damages for lost salary and benefits. Bruce Raley, however, appeals the Ohio Circuit Court's order for failure to address whether the Ohio County Schools must compensate him for additional damages resulting from his termination as a teacher for the school system. After careful consideration, we affirm.
On November 2, 2006, the Ohio County Schools' Superintendent discharged Bruce Raley from his position as a teacher with the Ohio County Schools. The provisions of Kentucky Revised Statutes (KRS) 161.790 allow a party who has been terminated under the statute to request an administrative hearing before a three-member tribunal to review such a decision. Accordingly, Raley appealed the termination to a three-member tribunal. The tribunal upheld the superintendent's action. Next, Raley appealed the tribunal's decision to the Ohio Circuit Court. It, too, upheld the termination. Raley then sought relief from the trial court's decision in our Court. We reversed the decision of Ohio Circuit Court and remanded the case to the trial court for actions consistent with our ruling.
On remand, the Ohio County Schools made a motion to the trial court for guidance as to whether Raley should be reinstated to his teaching position and whether he was entitled to damages. Further, if Raley was entitled to damages, the school district requested the court to determine the requisite amount of the damages. An evidentiary hearing was held on August 30, 2012, at which time Raley was reinstated as a teacher in the Ohio County School System. His reinstatement is reflected in an order entered September 5, 2012.
Besides hearing evidence at the hearing, the trial court reviewed the parties' memorandums, affidavits, and proposed orders regarding the amount and type of Raley's damages. In making its determination, the trial court considered Raley's lost salary, lost contributions to the Kentucky Teachers Retirement System (hereinafter "KTRS") including accrued interest, and lost fringe benefits. The unpaid fringe benefits included Medicare contributions, 401K contributions, and health insurance payments during the 2007 fiscal year.
Besides these damages, Raley also argued in his affidavits and memorandum that he should be reimbursed for mileage and a lost job opportunity. With reference to mileage, Raley provided information that after losing his teaching job in the Ohio County Schools, he accepted a teaching position in McLean County for the school year 2007-2008. He continued in this position until his reinstatement in 2012 to his teaching position in Ohio County. While teaching for the McLean County school district, Raley was required to drive 46 miles round trip from his home to the school. He now asserts that he should receive compensation for this mileage. Using the Commonwealth's compensation rate of $.45 per mile for the 957 days that he worked in McLean County, Raley claims $19,800.00 for mileage.
In addition, Raley maintains that he should receive compensation for a lost part-time job. During his tenure at the Ohio County Schools, he taught a graduated drivers' license class through Eastern Kentucky University. He provided instruction for the class at a school on the Ohio County Schools' campus as well as two public schools in other counties. Raley's compensation for teaching this class was approximately $600.00 per month. After his discharge from the Ohio County Schools, the Ohio County Schools' Superintendent would not allow him to teach the class on its campus. Notwithstanding that this part-time job was unrelated to his teaching position at the Ohio County Schools, Raley contends that he is entitled to damages of $17,650.00. He arrives at this amount based on the annual loss of approximately $3,530.00, which he would have received over the five-year period before the reinstatement.
In its order, entered on September 12, 2012, the trial court found that during the 2007 fiscal year, the total loss sustained by Raley, including lost salary, lost retirement contributions plus interest, and lost fringe benefits (Medicare contributions, 401K contributions, and health insurance payments) was $86,194.00. The trial court then offset the $86,194.00 by $10,426.00, the amount of Raley's unemployment benefits. After the offset, the trial court mandated that Raley receive $75,768.00 from the Ohio County Schools for back pay and lost benefits.
The trial court never specifically addressed Raley's claim for damages related to mileage and the part-time drivers' education job, but in its order the trial court considered the other damages before it explained the amount of his award for back pay and benefits.
Thereafter, Raley made a motion for disbursement of the settlement. On March 29, 2013, the trial court entered a second order concerning this matter. It ordered that the Ohio County Schools disburse the settlement proceeds of $75,768.00 to Raley and make a payment of $17,500.00 to the Kentucky Public Employees Deferred Compensation Authority on behalf of Raley. Again, however, the trial court did not address Raley's request for mileage or lost compensation from his part-time job. He now appeals these two orders based on the trial court's failure to award these damages.
We infer that the trial court's decision to not grant damages for mileage or the lost drivers' education job was based on its legal conclusion that such damages were not allowable. Therefore, the trial court's conclusion is subject to de novo review and an appellate court owes them no deference. See Arnold v. Patterson, 229 S.W.3d 923 (Ky. App. 2007).
On appeal, Raley maintains that KRS 161.790 is not dispositive of the damages that he is permitted to receive. Rather, he alleges that in the absence of a statutory remedy this case is analogous to other types of wrongful termination. Next, he suggests that based on the lack of a remedial provision in KRS 161.790, the remedy is found in KRS 446.070, which states "[a] person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation . . . ." From this language, Raley contends that both the mileage and the loss of income from the drivers' education position are recoverable damages.
Initially, we disagree with Raley's argument that no statutory remedy governs public education. Both KRS 161.790 and KRS Chapter 13B establish the process and the remedy for persons, including Raley, who experience termination of a teaching contract. In fact, KRS 161.790(8) specifically addresses remedial actions for a party who prevails under the administrative process: "[i]f after the hearing the decision of the tribunal is against termination of the contract, the suspended teacher shall be paid his full salary for any period of suspension." Hence, KRS 161.790 is dispositive as to the types of damages that are recoverable. And, these damages are the ones recovered by him.
Further, our review leads us to the conclusion that Raley has no additional claim against the Ohio County Schools under KRS 161.470 for damages caused by their alleged violations of this statute. The purpose of KRS 446.070 was "to remove any doubt that might arise as to the right of a person for whose protection a statute was passed to recover for a violation of that statute, where the statute was penal in its nature, or where by its terms the statute did not prescribe a remedy for its enforcement of violation." Hackney v. Fordson Coal Co., 230 Ky. 362, 19 S.W.2d 989, 990 (Ky. App. 1929); see also Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985). "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. And as observed in Thompson v. Breeding, 351 F.3d 732, 737 (6th Cir. 2003), "[t]he Kentucky Supreme Court has carefully limited the applicability of section 446.070 to situations where the statute that was allegedly violated provides no remedy for the aggrieved party.
Thus, contrary to Raley's suggestion that KRS 446.070 expands his opportunity for additional damages, the statute itself is the codification of negligence per se. Davidson v. American Freightways, Inc., 25 S.W.3d 94, 99 (Ky. 2000). With regard to the statute, negligence per se in such a case is merely a negligence claim with a statutory standard of care substituted for the common law standard of care. Young v. Carran, 289 S.W.3d 586, 588-589 (Ky. App. 2008). Hence, KRS 446.070 provides an avenue by which a damaged party may sue for a violation of a statutory standard of care if the statute in question provides no inclusive civil remedy and if the party is within the class of persons the statute is intended to protect. Hargis v. Baize, 168 S.W.3d 36, 40 (Ky. 2005).
Nonetheless, here, KRS 446.070 has no relevance to Raley's claim for additional damages under wrongful discharge. The pertinent statute, KRS 161.470, provides a civil remedy, that is, "[i]f after the hearing the decision of the tribunal is against termination of the contract, the suspended teacher shall be paid his full salary for any period of suspension." KRS 161.470(8). Therefore, the multiple cases cited by Raley involving the recovery of compensatory damages are inapposite to the factors herein.
In addition, Raley's argument that the employment law of Kentucky supports the proposition that the Ohio County Schools are required to provide him with a "make-whole" remedy is also not germane. First, he cites cases that are not related to the provisions of KRS 446.070 but instead evaluate the application of numerous federal and state regulations. No case, however, discusses situations involving KRS 161.470 or even the wrongful termination of a teacher in like situation. Therefore, Raley provides no legal authority for his proposition that he should be recompensed for mileage or lost salary for a part-time unrelated job.
For these reasons, we affirm the September 12, 2012 order of the Ohio Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Don Meade
Ben Basil
Louisville, Kentucky
BRIEF FOR APPELLEE: A.V. Conway, II
Hartford, Kentucky