COMMONWEALTH OF KENTUCKY, DEPARTMENT OF AGRICULTURE v. DONALD R. VINSON; CHARLES ANDERSON;
Annotate this Case
Download PDF
RENDERED: February 12, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001877-MR
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF AGRICULTURE
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 93-CI-000886
v.
DONALD R. VINSON; CHARLES ANDERSON;
and ROBERT S. PETERS, Secretary of
the Personnel Cabinet
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and GUIDUGLI, Judges.
COMBS, JUDGE:
Donald R. Vinson and Charles Anderson (hereinafter
"the appellees") filed this action against the Commonwealth of
Kentucky, Department of Agriculture ("Agriculture") pursuant to
KRS 61.101 et seq., Kentucky's "whistleblower" act.
Following
extensive pre-trial proceedings, a trial was conducted before the
court.
An advisory jury was also impaneled.
Ultimately, the
appellees prevailed and were awarded punitive damages as well as
permanent injunctive relief.
Agriculture appeals.
We affirm.
The appellees worked as Pesticide Inspector Supervisors
with the Department of Agriculture.
In a 1993 reorganization of
the Division of Pesticides, however, their positions were
eliminated.
As a result, the appellees filed this action in
Franklin Circuit Court on June 18, 1993.
The complaint alleged
that the elimination of their positions occurred in direct
retaliation for their disclosures related to mismanagement within
the division and thus violated Kentucky's "whistleblower" act.
In their amended complaint, the appellees claimed that other
actions taken against them by Agriculture also amounted to
violations of the act.
At trial, the appellees won a substantial
award of punitive damages.
The trial court also entered a
permanent injunction, which required Agriculture to void its
reorganization as far as it pertained to the appellees; to recreate the Pesticide Inspector Supervisor positions which had
been eliminated; and to return the appellees to their former
positions.1
On appeal, Agriculture contends that the judgment must
be reversed.
The issues it has presented for our review are
quite numerous.
We have re-ordered them for purposes of our
analysis in this opinion.
Kentucky's "whistleblower" act prohibits any reprisal
by an "employer" against an "employee" who in good faith
discloses:
1
Agriculture's requests to have enforcement of the
injunctive relief portion of the judgment stayed pending appeal
have been denied. Appellees were reinstated as Pesticide
Inspector Supervisors in September 1997.
-2-
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.
KRS 61.102(1).2
(Emphasis added.)
The statute was enacted to
shield from retribution those governmental employees who "blow
the whistle"; that is, employees who expose instances of
wrongdoing or illegality on the part of their supervisors.
Other
states, as well as the federal government, have enacted similar
statues aimed at encouraging employees to report violations of
law or mismanagement.
See 82 Am.Jur.2d Wrongful Discharge § 55
(1992).
Agriculture advances three separate arguments in
support of its position that Kentucky's "whistleblower" act is
unconstitutional.
First, it contends that the rebuttable
presumption created by KRS 61.103(1)(b) is arbitrary and
capricious.3
KRS 61.103 provides public employees with a private
right of action:
it authorizes an employee to enforce the
2
For purposes of KRS 61.102, KRS 61.101(2) defines
"employer" as "the Commonwealth of Kentucky or any of its
political subdivisions." The term also includes "any person
authorized to act on behalf of the Commonwealth . . . with
respect to formulation of policy or the supervision, in a
managerial capacity, of subordinate employees. . . ." "Employee"
is defined as "a person in the service of the Commonwealth of
Kentucky. . . ." KRS 61.101(1).
3
In a separate argument, Agriculture contends that this
provision should not apply to the facts of this case. This issue
is resolved later in the opinion.
-3-
"whistleblower" act by way of a civil action against the alleged
offender.
In order to prevail, the act requires employees to
"show by a preponderance of evidence that the disclosure was a
contributing factor in the personnel action" taken against them.
KRS 61.103(3).
(Emphasis added).
"Contributing factor" is
defined as "any factor which, alone or in connection with other
factors, tends to affect in any way the outcome of a decision."
KRS 61.103(1)(b).
KRS 61.103(1)(b) further provides as follows:
It shall be presumed there existed a ‘contributing
factor’ if the official taking the action knew or had
constructive knowledge of the disclosure and acted
within a limited period of time so that a reasonable
person would conclude the disclosure was a factor in
the personnel action.
Agriculture observes that the presumption of one fact from
evidence of another is permissible only where there is a rational
connection between the fact proven or established and the
ultimate fact which is being presumed.
It argues that there is
no rational connection between the fact which the employee must
prove (that the government official knew that the employee had
disclosed misconduct and then, within a short time, took some
personnel action against the whistleblower) and the ultimate fact
which is then presumed (that the employee’s disclosure was a
"contributing factor" in the personnel action taken against him).
We disagree.
When an employer has taken an adverse action against an
employee/whistleblower at or near the time that he became aware
of a protected disclosure by that employee, it is not
unreasonable or arbitrary to infer that such a disciplinary
(adverse) action was causally connected with the employee’s
-4-
disclosure (blowing of the whistle, so to speak).
On the
contrary, the inference is both a logical and natural consequence
of an employer’s offended sensibilities and feelings of
resentment under such circumstances.
Additionally, the statutory
presumption applies only where a "reasonable person would
conclude the disclosure was a factor in the personnel action."
The overlay of "reasonableness" creates a common-sense kind of
litmus test by which to evaluate the overall scenario.
Thus,
there is a rational connection between the fact proved (the
reprisal) and the ultimate fact which is presumed (that the
whistle-blowing was a contributing factor in the reprisal).
We
cannot, therefore, agree that the provision is unconstitutional
on this basis.
Kentucky Harlan Coal Co. v. Holmes, Ky., 872
S.W.2d 446 (1994).
Next, Agriculture contends that Kentucky’s
"whistleblower" act is void for vagueness.
It asserts that
the statute is written in such broad, widesweeping and vague terms that persons of
ordinary intelligence must necessarily guess
as to the statute's intended meaning and
persons of ordinary intelligence may very
easily differ as to the statute's proper
application.
(Appellant's brief at 22).
The challenge is directed
specifically at the provisions of KRS 61.102(1) and 61.103(3).
KRS 61.102(1) provides 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 . . . to the attention of the
-5-
Kentucky Legislative Ethics Commission, the
Attorney General . . . any facts or
information relative to an actual or
suspected violation of any law . . . .
KRS 61.103(3) provides as follows:
Employees filing court actions under the
provision of subsection (2) of this section
shall show by a preponderance of evidence
that the disclosure was a contributing factor
in the personnel action. Once a prima facie
case of reprisal has been established and
disclosure determined to be a contributing
factor to the personnel action, the burden of
proof shall be on the agency to prove by
clear and convincing evidence that the
disclosure was not a material fact in the
personnel action.
Agriculture maintains that the provisions of KRS
61.102(1) can be construed to prohibit "any conduct by the
employer which in any way involves or affects the employee."
(Appellant's brief at 21).
As an example, it contends that an
employer might be prohibited from discussing with the
whistleblower any problem with the employee's work performance
because such activity constitutes the use of "official authority"
in a manner which "tends to discourage, restrain, dissuade,
deter, prevent, interfere with, coerce, or discriminate against"
the disclosing employee in some way.
Agriculture contends that
the act is made even more vague and ambiguous by the inclusion of
the term "personnel action" in the provisions of KRS 61.103(3).
It asks:
"[d]oes the Whistleblower Statute apply only to a
‘personnel action’ as set forth in KRS 61.103(3) or does it apply
to other conduct by an employer which does not rise to the level
of a ‘personnel action’?"
-6-
A statute is void for vagueness if it fails to provide
adequate notice of prohibited conduct.
However, the
determination of whether a statute is vague often is not based
solely upon the text of the provision but additionally upon how
that text has been construed by the courts.
Chaplinsky v. New
Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
Thus, it is necessary not only to examine the explicit provisions
of the act but also to review the trial court's construction of
them.
The term "personnel action" is not defined by the
statute.
We agree with Agriculture's assessment that the term
encompasses a wide variety of activities.
In fact, we find that
the term can be read a great deal more broadly than Agriculture
submits.
Additionally, the statute names a litany of proscribed
exercises of "official authority" in thesaurus-like fashion.
However, that detailed breadth of the statute is limited and
somewhat defined by the exclusions contained in 61.102(3),
exclusions which clearly delineate the duty of an employee to
behave responsibly and honestly in performing his duties.4
4
After
KRS 61.102(3) provides as follows:
This section shall not be construed as:
(a) Prohibiting an employer from requiring that an
employee inform him of an official request made to an
agency for information, or the substance of testimony
made, or to be made, by the employee to legislators on
behalf of an agency;
(b) Permitting the employee to leave his assigned work
area during normal work hours without following
applicable law. . .;
(c) Authorizing an employee to represent his personal
opinions as the opinions of his employer; or
(d) Prohibiting disciplinary or punitive action if an
(continued...)
-7-
examining the text of the legislation in its entirety and the
manner in which it was construed by the trial court, we cannot
conclude that the act is so vague as to be rendered void.
The "whistleblower" act was designed to protect
employees from reprisal for the disclosure of violations of the
law.
Boykins v. Housing Auth. of Louisville, Ky., 842 S.W.2d 527
(1992).
Interpretations effectuating the goals of the statute,
though many and varied, are nonetheless permissible.
Supervisors
have engaged in creative means of retribution and have
perpetrated a prolific variety of abuses against whistleblowers.
In order to anticipate and to prohibit such mistreatment, the act
must necessarily use broad terms and descriptions.
Although
Agriculture argues otherwise, the act conveys a fair and
sufficiently definite warning as to the proscribed conduct.
As a
result, we hold that the statute is not void for vagueness.
Next, Agriculture contends that Kentucky's
"whistleblower" act is unconstitutional because it permits an
impermissible encroachment by the legislature upon exclusively
executive power.
Specifically, Agriculture objects to the trial
court's judgment voiding the agency's 1993 reorganization.
KRS 61.103(2) provides, in part, as follows:
Notwithstanding the administrative remedies granted by
KRS Chapters 16, 18A, 78, 90, 95, 156, and other
chapters of the Kentucky Revised Statutes, employees
4
(...continued)
employee discloses information which he knows:
1. To be false or which he discloses with reckless
disregard for its truth or falsity;
2. To be exempt from required disclosure under the
provisions of KRS 61.870 to 61.884; or
3. Is confidential under any other provision of law.
-8-
alleging a violation of KRS 61.102(1) or (2) may bring
a civil action for appropriate injunctive relief or
punitive damages, or both. . . .
Once an employee has proven a violation of the
"whistleblower" act, the statute's remedial purpose is then
activated to provide recourse to the kind of injunctive relief
granted by the trial court in this case.
The trial court did not
intend to void Agriculture’s reorganizational scheme altogether;
rather the reorganization was voided only to the degree that it
related to the appellees.
Moreover, KRS 61.990(4) authorizes the
court to order the reinstatement of employees.
The trial court's
order amounted to no more than reinstatement of the appellees to
the positions that they held immediately before the agency's act
of reprisal; thus, the court's order did not impermissibly
interfere with an executive function.
It merely put the
employees in the position they had occupied before the illegal
reprisal occurred — wholly in accordance with the statutory
provisions.
There is a strong presumption of validity of statutes.
United States v. National Dairy Products Corp., 372 U.S. 29, 83
S.Ct. 594, 9 L.Ed.2d 561 (1963).
It is the responsibility of the
reviewing court "to read the statutes of the General Assembly so
as to save their constitutionality whenever such can be done
consistent with reason and common sense."
Diener v. Commonwealth
of Kentucky, Transp. Cabinet, Ky., 786 S.W.2d 861, 863 (1990).
After having carefully considered each of the appellant's
arguments, we cannot agree that Kentucky's "whistleblower" is
unconstitutional on any of the grounds advanced by Agriculture.
-9-
Next, Agriculture contends that the trial court erred
in rendering its judgment because sovereign immunity bars an
action against the agency.
It argues that
the statute is ambiguous as to whether an
action may be maintained directly against a
state government agency . . . . [T]he
statute strongly suggests that the action may
be maintained only against a person who is
employed by a state government agency.
(Appellants’ brief at 25).
Again, we disagree.
Agriculture is a state agency, and any claim against it
for monetary damages is precluded by Section 231 of the Kentucky
Constitution unless waived by the General Assembly.
The Kentucky
Supreme Court has recently announced that the test for waiver of
sovereign immunity is a stringent one.
In Withers v. University
of Kentucky, Ky., 939 S.W.2d 340, 346 (1997) the court held as
follows:
We will find
most express
implications
room for any
waiver only where stated ‘by the
language or by such overwhelming
from the text as [will] leave no
other reasonable construction.’
Citing, Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347 1361,
39 L.Ed.2d 662, 678 (1974) and Murray v. Wilson Distilling Co.,
213 U.S. 151, 171, 29 S.Ct.458, 464-65, 53 L.Ed. 742 (1909).
While Kentucky's "whistleblower" act contains no express waiver
of the immunity protection, we find that an overwhelming
implication of waiver can be found in the statutory text — thus
satisfying the Withers test.
As has been noted, through the enactment of the
"whistleblower" statute, the General Assembly sought to grant
broad protections to state employees from retaliation for their
-10-
disclosure of violations of the law.
KRS 61.103(2) specifically
grants public employees the ability to enforce the
"whistleblower" provisions by means of a civil action.
If either
public officials or the agencies who employ them were permitted
to act against whistleblowers without the threat of a lawsuit and
damages, the purposes of the act would be essentially
emasculated.
Kentucky's "whistleblower" act is directed
specifically at inhibiting wrongdoing by the Commonwealth and all
of its political subdivisions — as well as those persons
authorized to act on behalf of the Commonwealth.
We hold that
the statute’s explicit inclusion of the language, the
"Commonwealth of Kentucky or any of its political subdivisions"
(defining the scope of the act), operates as an implied waiver of
sovereign immunity.
Similar conclusions have been reached by the courts of
our sister states.
In deciding whether sovereign immunity of the
state and its agencies had been waived by the state's
"whistleblower" act, the North Carolina Court of Appeals noted
that waiver would not be inferred lightly.
Minneman v. Martin,
114 N.C. App., 616, 442 S.E.2d 564 (1994).
However, the court
ultimately determined that because the act provided specific
remedies for employees who were injured as contemplated by the
statute (including the right to sue for redress), there had
indeed been a waiver of sovereign immunity.
Id.
In a more detailed analysis, the Court of Appeals of
Texas also determined that sovereign immunity had been waived by
implication.
In Texas Dept. of Human Serv. v. Green, 855 S.W.2d
-11-
136, 142 (Tex. Civ. App. 1993), the court emphasized that the
state's "whistleblower" act evidenced two legislative purposes:
1) to protect public employees from retaliation by their employer
when, in good faith, employees reported a violation of law; and
as a corollary, (2) to secure lawful conduct on the part of those
who direct and conduct the affairs of public agencies and
entities.
Like Kentucky's "whistleblower" act, the statute
enacted in Texas prohibits a state or local governmental body
from suspending or terminating the employment of (or otherwise
discriminating against) a public employee who acts as a
whistleblower.
The court reasoned that since the legislature had
directed its proscription against "a state or local governmental
body," it also intended to direct the act's penalties at those
same entities.
Id.
The court concluded that this interpretation
of the act was consistent with the act's second goal — that of
securing lawful conduct on the part of those who manage the
affairs of the governmental body.
Id.
The court held as
follows:
Because it thus bears the primary risk for violation of
the Act, the governmental body has the principal
incentive to oversee the conduct of its agents to the
greater protection of public employees.
Even a strict construction of sections 2, 3, and 4 [of
the "whistleblower" act] would not lead us to conclude
that the Act, which purports to prohibit retaliation
against public employees by state and local
governmental bodies, withholds the authority to sue
those very bodies.
* * * * *
[T]he Act unambiguously waives the governmental
immunity from suit and from liability of state and
-12-
local governmental entities in suits seeking redress
for retaliation against public employees.
Id. at 143-143.
While Kentucky's "whistleblower" act also applies
expressly to individual supervisors acting on behalf of the
Commonwealth, we do not believe that this fact alone relieves the
governmental entities (for which the supervisors serve as agents)
from liability under the act.
On the contrary, we agree with the
Texas court that when the agency bears a risk for violation of
the act, the governmental body has an incentive to oversee the
conduct of its agents for the greater protection of public
employees.
We believe that the text of Kentucky's statute
similarly evidences such an intention.
Finally, we note that the Supreme Court of Minnesota
has construed provisions of its state's "whistleblower" act to
operate as an implied waiver of sovereign immunity.
Janklow v.
Minnesota Bd. of Examiners for Nursing Home Admin., 552 N.W.2d
711, (Minn. 1996).
After examining the purposes of the
legislation, the court determined that the application of
sovereign immunity would be directly inimical to the protections
granted state employees by the act.
The court concluded as
follows:
[W]e hold that the state cannot claim the protection of
statutory immunity to protect it from claims under the
Whistleblower Act. To do so would contravene the
legislature's decision to include the state in the list
of employers who must abide by the Whistleblower Act's
provisions.
Accordingly, we are persuaded that Agriculture cannot
be shielded by sovereign immunity from the action instituted
-13-
against it.
Because the legislation is directed specifically at
the Commonwealth and its political subdivisions, we find that a
reasonable construction of the act will admit of no other
conclusion but that a waiver of sovereign immunity has been
accomplished overwhelmingly by implication.
Next, Agriculture argues that the trial court erred by
applying the amended version of Kentucky's "whistleblower"
statute to this action.
It contends that the amendment (enacted
after the appellees filed their action) constitutes a change in
the law with respect to the type of proof necessary to establish
a viable cause of action.
Thus, it constitutes a substantive
change in the law which cannot be applied retroactively.
We do
not agree that the amendment effected a substantive change in the
law.
In any event, however, due to the remedial nature of the
amendment, we hold that the trial court did not err by applying
the amendment to this case.
KRS 446.080(3) provides that "[n]o statute shall be
construed to be retroactive, unless expressly so declared."
However, legislation has been applied to causes of action which
arose before its effective date in the absence of an express
declaration that the provision is to be so applied in those
instances where the courts have determined that the provision was
remedial or procedural in nature and that retroactive application
of the provision was consistent with the legislation intent.
Benson's Inc. v. Fields, Ky., 941 S.W.2d 473 (1997).
In Peabody
Coal Co. v. Gosset, Ky., 819 S.W.2d 33, 36 (1991), the Kentucky
-14-
Supreme Court noted that a retrospective law has been defined as
one which:
takes away or impairs vested rights acquired
under existing laws, or which creates a new
obligation and imposes a new duty, or
attaches a new disability, in respect to
transactions or considerations already past.
Therefore, despite the existence of some
contrary authority, remedial statutes, or
statutes relating to remedies or modes of
procedure, which do not create new or take
away vested rights, but only operate in
furtherance of the remedy or confirmation of
such rights, do not normally come within the
legal conception of a retrospective law, or
the general rule against the retrospective
operation of statutes. [A] remedial statute
must be [construed retroactively] as to make
it effect the evident purpose for which it
was enacted, so that if the reason of the
statute extends to past transactions, as well
as to those in the future, then it will be so
applied although the statute does not in
terms so direct, unless to do so would impair
some vested right or violate some
constitutional guaranty. 73 Am.Jur.2d
Statutes §354 (1974) (footnotes omitted).
(Emphasis added.)
We agree with Agriculture's assessment that prior to
September 16, 1993, the burden of proof under the act was
entirely upon the employee to show by clear and convincing
evidence that he — or someone acting on his behalf — had reported
or was about to report a violation or a suspected violation of
the law.
But, as the appellees note, the "clear and convincing"
requirement dealt with proving that a disclosure had occurred —
or was about to occur — not with proving that a violation of the
act had occurred.
The act as amended requires the employee to prove a
prima facie case of reprisal; i.e., that the employee's
-15-
disclosure was a "contributing factor" in the action taken
against him.
KRS 61.103.
Thus, in both the former and the
amended versions, the plaintiff bore the burden of going forward
with the evidence.
Once a prima facie case had been made, then
the burden of proof shifted to the defendant.
Under the statute
as amended, the defendant has the obligation to show "by clear
and convincing evidence that the disclosure was not a material
fact in the personnel action."
Id.
Previously, there had been
no provisions detailing the burdens of proof and persuasion.
We
hold that the subsequent amendment to the act merely refined its
former provisions by specifically setting forth in what manner
the proof would be presented.
The amended version of the statute
did not alter the underlying claim or liability — only the
presentation of some of the proof required.
The duty imposed
upon Agriculture under KRS 61.102(1) — to refrain from subjecting
"whistleblowers" to reprisal — did not change.
The defense
available to the agency also remain unchanged — that an adverse
personnel action taken against the "whistleblower" was not a
result of the disclosure and that there was no violation of the
act's provisions.
As a result, we conclude that the trial court
did not err by applying the amended version of the statute to
this action as no vested rights were either created or taken
away.
Peabody Coal, supra.
Next, Agriculture contends that the appellees’ original
complaint should have been dismissed because it was filed
prematurely.
We disagree.
-16-
Agriculture argues that the appellees' action was not
viable because it was commenced before the accrual of the cause
of action.
It notes that while the appellees' complaint was
filed on June 18, 1993, the reorganization under which the
appellees' positions were dissolved did not become final and
effective until July 13, 1993.
However, as the appellees assert,
they were notified of their demotions on May 26, 1993.
Furthermore, evidence at trial indicated that the reorganization
of the Division of Pesticides was effective by May 16, 1993.
In
fact, throughout the trial, the date of May 16, 1993, was used by
both parties as the effective date of the reorganization.
We
note that Agriculture initially argued below that the complaint
had been filed too late.
We agree with the appellees that
Agriculture's argument on this point lacks credibility.
Agriculture next contends that the court erred by
permitting appellees to file an amended complaint.
Again, we
disagree.
CR 15.01 provides that leave to amend a pleading shall
be freely given by a court when justice so requires.
The
granting of an opportunity to amend is within the discretion of
the trial court and should not be disturbed unless an abuse of
discretion is clearly shown.
Floyd v. Humana of Virginia, Inc.,
Ky. App., 787 S.W.2d 267 (1989).
Prejudice to the nonmoving
party is the touchstone for the denial of an amendment.
Cornell
& Co. v. Occupational Safety and Health Review Comm'n, 573 F.2d
820, 822 (3rd Cir. 1978).
-17-
In this case, we cannot say that the trial court abused
its discretion by permitting the appellees to amend their
complaint.
The appellees' amended complaint sets out facts and
claims of violations of the "whistleblower" act which either
occurred or continued following the filing of the original
complaint.
There was a clearly reasonable basis for permitting
the appellees to amend their complaint.
Moreover, the court
continued the trial date originally scheduled and granted
Agriculture an additional four months within which to prepare its
defense to the allegations contained in the amended complaint.
As a result, we cannot say that the agency suffered prejudice as
a result of the amendment.
Next, Agriculture contends that the trial court erred
by failing to dismiss the counts contained in the amended
complaint.
In their amended complaint, the appellees alleged
that one or both of them had endured further reprisal for having
"blown the whistle" about supervisors, including:
1) receiving
internal memoranda chastising them for improper work performance;
2) becoming the subject of a bogus internal investigation; and 3)
suffering derogatory comments.
Agriculture argues that the
conduct complained of is simply not actionable under the statute
because it does not amount to "personnel action" within the
meaning of the act.
We do not agree that the reprisals suffered
by the appellees as detailed in their amended complaint fail to
constitute a colorable claim against the agency.
As we have noted, Kentucky's "whistleblower" act does
not provide a definition for the term "personnel action."
-18-
However, that term does appear in the federal Whistleblower
Protection Act.
5 U.S.C. § 2303 (1994).5
In Saul v. United
States, 928 F.2d 829 (9th Cir. 1991), the appellate court
considered whether a supervisor's alleged unauthorized opening of
personal mail, alleged defamatory remarks, and alleged infliction
of emotional distress upon an employee fell within the purview of
"personnel action" as defined by the federal act.
Citing the
legislative history, the Ninth Circuit rejected a "cramped
construction of the term ‘personnel action’.
Ultimately, it held
that the term ‘corrective action’ contained in the definition of
‘personnel action’" was expansive enough to encompass such
claims.
See also, Frederick v. Department of Justice, 73 F.3d
349 (Fed. Cir. 1996).
In light of
both the purposes for which the statute
was enacted and the inclusive language employed by lawmakers, the
broad interpretation of the statute given by the trial court was
5
The federal Whistleblower Protection Act provides that:
(b) Any employer who has authority to take, direct
others to take, recommend, or approve any personnel
action, shall not, with respect to such authority -* * * * *
(8) take or fail to take, or threaten to take or fail
to take, a personnel action with respect to any
employee or applicant for employment because of -(A) any disclosure of information by an employee or
applicant which the employee or applicant reasonably
believes evidences -(i) a violation of any law, rule, or regulation. . . .
.
5 U.S.C. § 2302(b) (1994).
-19-
justified.
The court did not err by refusing to dismiss those
counts included in the amended complaint.
Agriculture next argues that the trial court erred by
granting the appellees a jury trial.
We agree that Kentucky's
"whistleblower" act does not expressly provide plaintiffs the
right to trial by jury.
Instead, the act implies that an
employee filing an action under the statute is to have his claim
adjudicated by the court.
KRS 61.990(4) states as follows:
A court, in rendering a judgment in an action filed
under 61.102 and 61.103, shall order as it considers
appropriate, reinstatement of the employee, the payment
of back wages, full reinstatement of fringe benefits
and seniority rights, exemplary or punitive damages, or
any combination thereof. A court may also award the
complainant all or a portion of the costs of
litigation, including reasonable attorney fees and
witness fees.
(Emphasis added).
Critical to our resolution of this issue,
however, is the trial court's decision to have the jury serve in
an advisory capacity pursuant to CR 39.03.6
CR 39.03 provides as follows:
Advisory Jury and Trial By Consent. In all actions not
triable of right by a jury the court upon motion or of
its own initiative may try an issue with an advisory
jury; or the court, with the consent of all parties
noted of record, may order a trial with a jury whose
verdict has the same effect as if trial by jury had
been a matter of right.
Following the initial pre-trial conference held in
November 1996, the trial court advised the parties that an
6
While the appellees contend that they should not have been
denied the right to a jury trial, they have not raised or
contested that issue by means of a cross-appeal. In any event,
where the parties have apparently consented, the unauthorized
used of an advisory jury in cases where the parties are entitled
to trial by jury has been held not to be reversible error. See
Brock v. Farmer, Ky. App., 291 S.W. 2d 531 (1956).
-20-
advisory jury would be impaneled to hear the appellees' proof.
No objection appears of record.
The issue was discussed again in
a pre-trial conference held in early March of 1997.
Again, no
objection to the court's intentions appears of record.
Following
presentation of the evidence and the advisory jury's
deliberation, the court entered its findings of fact, conclusions
of law, and judgment.
While the court initially indicated that
the action "came on for trial by jury," the judgment went on to
provide as follows:
[T]he Court having heard all the testimony and having
reviewed all evidence presented, based upon the record
as a whole . . . .
It is the finding of the Court that the Plaintiffs have
proven a violation of the Kentucky Whistleblower
Statute, KRS 61.102 et seq. by the Defendant, the
Commonwealth of Kentucky, Department of Agriculture and
that the Plaintiffs are entitled to the relief
requested as set out within this judgment. This Court
adopts the Verdict of the jury and affirms the findings
of the jury as its own.
On appeal, Agriculture argues that the impaneled jury
cannot be characterized as merely advisory.
However, it concedes
that a claim filed pursuant to the "whistleblower" act is a
proceeding that is equitable in nature.
"[W]here the issue is
equitable . . . absent expressed consent, the jury is advisory
only, regardless of what the court may characterize it."
v. Emerson, Ky. App., 709 S.W.2d 853 (1986).
Emerson
Having decided to
conduct this trial with the assistance of an advisory jury, the
trial court was at liberty to accept the verdict rendered by the
panel and to treat it as its own.
47 Am.Jur.2d Jury §94 (1992).
As a result, we cannot conclude that the trial court erred in
conducting the proceedings as it did.
-21-
Next, Agriculture enumerates several alleged
evidentiary errors committed by the trial court.
Rather than
addressing each alleged error individually, however, we note that
allegations of error cannot be based upon the erroneous admission
of evidence in a case tried by the court without a jury.7
For
purposes of appellate review, a trial with an advisory jury is
tantamount to a trial to the court alone.
Thus, any error
committed by admitting evidence before an advisory jury is not
reviewable on appeal.
Separate and apart from this procedural
point, Agriculture failed to show substantively that the trial
court's judgment was in any way based on the evidence it alleges
to be inadmissible.
Agriculture next argues that the trial court erred by
failing to grant its motion for directed verdict.
We disagree.
The standard to be applied by the trial court in ruling
on a motion for a directed verdict is set out in Sutton v. Combs,
Ky., 419 S.W.2d 775 (1967), and Taylor v. Kennedy, Ky. App., 700
S.W.2d 415 (1985).
It is settled that the trial court must
construe the evidence "in its strongest light in favor of the
party against whom the motion was made", Sutton at 777, and must
deny the motion unless "no disputed issue of fact exists upon
which reasonable men could differ."
Taylor at 416.
Agriculture
insists that the appellees failed to present sufficient evidence
to overcome its motion for directed verdict.
In essence, it
contends that the proof failed to establish that the personnel
7
In the same vein, objections to instructions provided the
advisory jury cannot become the basis for an allegation of error
sufficient to justify reversal of the court's determination.
-22-
action taken against the appellees was causally related to their
protected disclosures.
On the contrary, having reviewed the
evidence presented at trial, we hold that the appellees' proof
amply sufficed to prove a violation of Kentucky's "whistleblower"
act.
The trial court did not err in refusing to direct a verdict
against the appellees.
Next, Agriculture contends that the court erred by
awarding the appellees punitive damages.
However, Kentucky's
"whistleblower" act expressly authorizes an award of punitive
damages.
KRS 61.103(2) provides that "employees alleging a
violation of KRS 61.102(1) or (2) may bring a civil action for
appropriate injunctive relief or punitive damages, or both."
KRS
61.990(4) specifically provides for an award of punitive damages
as well.
Furthermore, the appellees' evidence was sufficient to
support the finding that punitive damages were appropriate.
Since the legislation specifically permits an award of punitive
damages, we have no basis to hold that the trial court erred by
awarding punitive damages — especially in light of the facts of
this case.
Neither can we conclude that the award in this case
was excessive.
In reaching this conclusion, we have reviewed the
criteria set out in CR 59.01 and those factors set forth in TXO
Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 113
S.Ct. 2711, 125 L.Ed.2d 366 (1993).
Finally, Agriculture briefly asserts that the trial
court erred in granting additional relief to the appellees,
including:
reinstatement of personal leave time expended in
prosecuting their case; $257.65 to reimburse a lay witness; and
-23-
$293.04 in lodging expenses.
With respect to the reinstatement
of the appellees' personal leave time, we conclude that the
statute specifically envisions such relief upon proof of an
employer's violation of the "whistleblower" act.
With respect to
the lay witness fee and the lodging expenses requested by the
appellees, we note that Agriculture raised no specific objection
until after the award had already been made.
As a result, we
conclude that Agriculture is not in a position to contest the
award on appeal.
Based upon the foregoing, the judgment of the Franklin
Circuit Court is affirmed.
DYCHE, JUDGE, CONCURS.
GUIDUGLI, JUDGE, CONCURS IN RESULT.
BRIEFS FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEES VINSON AND ANDERSON:
Mark Furrow
Department of Agriculture
Frankfort, KY.
Bennett E. Bayer
Lexington, KY.
Richard M. Guarnieri
Frankfort, KY.
ORAL ARGUMENT FOR APPELLANT:
Richard M. Guarnieri
Frankfort, KY
-24-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
