PAMELA E. SAPP v. MARY JANE COWHERD
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RENDERED: AUGUST 18, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000373-MR
PAMELA E. SAPP
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 98-CI-02048
v.
MARY JANE COWHERD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, and SCHRODER, Judges.
COMBS, JUDGE:
Pamela E. Sapp appeals from an order of the
Franklin Circuit Court dismissing her complaint against Mary Jane
Cowherd.
We affirm.
Before her complaint was filed, Sapp was employed by
the Workforce Development Cabinet and served as a computer
operations analyst for Owensboro Technical College.
She also
suffered from major depression -- so severely as to require her
hospitalization on at least two occasions.
Cowherd is a licensed psychologist working with the
Kentucky Employee Assistance Program ("KEAP").
KEAP is a
creature of statute designed to "coordinate employee assistance
programs that exist in state agencies and to supplement them with
additional services."
101 KAR 2:160 §1.
A case history prepared
by Cowherd and appended to her motion to dismiss this action
indicates that she first became aware of various personnel
problems at Sapp's workplace when, on February 6, 1996, Sapp's
supervisor, Ellis Ray Gillaspie, contacted her by telephone.
As
a result of this conversation, Cowherd recommended that Sapp be
referred to KEAP.
During a meeting with various officials of the
Workplace Development Cabinet, Cowherd learned the names of
Sapp's treating psychiatrist and therapist.
On April 22, 1996, Sapp contacted Cowherd directly.
During this conversation, Sapp outlined to Cowherd her perception
of the causes of her workplace difficulties, described
accommodations she sought from her employer, and provided the
names of her psychiatrist and therapist.
To facilitate her
involvement in KEAP, Sapp agreed to permit her therapist to
disclose confidential information to Cowherd and signed a consent
form to this effect.
Sapp declined, however, to authorize a
meeting between her mental health care providers and her
supervisors.
On April 26, 1996, a Workforce Development Cabinet
administrator, June Thompson, contacted Cowherd and reported that
Sapp had made a distressing telephone call to the Cabinet and
that she (Thompson) was now concerned about Sapp's potential for
violence at the workplace.
Cowherd advised that Sapp could be
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placed on agency-directed sick leave until a mental health
professional could certify Sapp's fitness to return to work.
On April 29, 1996, Sapp's therapist, Sandra Kelly,
returned a telephone call placed by Cowherd.
The question of
whether Sapp might require hospitalization was discussed.
Ms.
Kelly advised Cowherd that Sapp's case was about to be closed due
to her failure to comply with certain requirements; she suggested
that Sapp schedule an appointment immediately.
this information to Sapp.
Cowherd relayed
Shortly thereafter, Sapp learned that
she was to be placed on agency directed sick-leave.
On May 30, 1996, Sapp wrote to Cowherd cancelling KEAP's
services and requesting that Cowherd not have further contact
with her mental health care providers.
Several months later,
Sapp filed a formal complaint against Cowherd with the Kentucky
Board of Psychology.1
On September 9, 1998, Sapp filed a seventy-five
paragraph complaint against Cowherd and others.
Pertinent to
this appeal, Sapp alleged that her "rights as a mental health
care client" and her "rights to therapist/client confidentiality"
had been abused; that Cowherd and others had attempted to have
her hospitalized against her will; and that as a result of
Cowherd's communications with her mental health care providers,
she had been placed on inappropriate medication.
No exhibits or
affidavits were attached to the complaint.
1
The State Board of Psychology determined that no action was
necessary on the matter and closed its file in early March 1997.
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On September 22, 1998, Cowherd filed a motion to
dismiss or, in the alternative, for the entry of summary
judgment.
In support of her motion, Cowherd alleged that she had
not spoken with Sapp's psychiatrist; that her discussions with
Sapp's therapist did not involve a breach of any therapist/client
relationship; and that her limited discussions were otherwise
entirely proper.
Cowherd noted that she had not served in the
capacity as "therapist" to Sapp but rather as a kind of
coordinator of services.
Attached to Cowherd's memorandum in
support of her motion were numerous exhibits — including copies
of correspondence, a detailed case history report, and the
affidavit of the Cabinet's personnel administrator.
On February 10, 1999, the trial court entered its
opinion and order dismissing Sapp's action against Cowherd,
holding as follows:
[T]he court is of the opinion that Sapp's
therapist/client confidentiality claims cannot survive
Cowherd's motion. The entire claim is based upon
Sapp's assertion and belief that Cowherd was her
therapist, and that Cowherd improperly communicated
confidential information to parties outside of the
therapist/client relationship. Cowherd is entitled to
dismissal of the complaint on both of these grounds.
First, Sapp is simply in error when she alleges that
Cowherd was her therapist. In her complaint, Sapp
makes the allegation that KEAP is a "confidential
counseling service provided employees of the
commonwealth (sic) of Kentucky." This allegation is
not only unsupported, but is contradicted by the
statutes and regulations which create the KEAP program.
In reviewing those statutes and regulations, this Court
is unable to conclude that it was the intention of the
drafters that Cowherd would act as Sapp's therapist.
Cowherd's role under the statutes and regulations is to
coordinate the assistance available to Sapp--not to act
as a publically-funded (sic) counselor or therapist.
As such, the Court is of the determined belief that
there exists no set of facts which might be proven to
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establish that Cowherd and Sapp stood in a
therapist/client relationship. On this point alone,
dismissal of this claim is warranted.
However, even assuming that Cowherd and Sapp stood in
something akin to a therapist/client relationship, it
is clear that any such relationship was by virtue of
and limited by Sapp's involvement in the KEAP program.
As such, and given Cowherd's duty to coordinate Sapp's
participation therein, it is reasonable to conclude
that Cowherd must have enjoyed the privilege of
communicating with others who may have naturally been
implicated by Sapp's involvement with the program--most
notably, her supervisors and her private mental health
care-givers.
Sapp's complaint appears to focus on the fact that
Cowherd may have communicated certain information and
intentions from Sapp's employers to her therapists.
There is no claim that Cowherd communicated any
information she received from Sapp to Sapp's employers.
The communications which Cowherd had admitted making do
not entitle Sapp to judgment on her claim of
therapist/client confidentiality. Rather, these
communications are a necessary part of the KEAP program
and its design as a program of employee-benefits
coordination. Even though the plaintiff is entitled to
access the benefits of the KEAP program, she is not
entitled to dictate the exact manner in which the
program will be operated or the judgment involved in
attempting to resolve a problem.
This appeal followed.
Sapp argues that the trial court erred by concluding
that she and Cowherd did not stand in a client/therapist
relationship.
She also maintains that Cowherd engaged in a
prohibited "dual relationship" by counseling her supervisors and
that she violated regulations forbidding therapists from
"stereotyping" clients.
Having carefully reviewed the record, we
affirm the trial court's entry of judgment.
Because the trial court's order of dismissal was based
on matters in addition to the pleadings, it must be treated as a
summary judgment.
CR 12.02, CR 12.03.
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Pursuant to CR 56.03,
summary judgment is proper if it is shown that there is no
genuine issue of material fact and that the party seeking summary
judgment is entitled to it as a matter of law.
Palmer v.
International Ass'n of Machinists and Aerospace Workers, AFL-CIO,
Ky., 882 S.W.2d 117 (1994).
As the movant in this case, Cowherd bore the burden of
showing that no genuine issues of material fact precluded the
entry of judgment.
Smith v. Higgins, Ky., 819 S.W.2d 710 (1991).
"Simply by moving for summary judgment, a defendant cannot force
a plaintiff to come forward with evidence to defeat the motion."
Id. at 712.
However, once Cowherd presented evidence showing the
non-existence of a genuine issue of material fact, it became
incumbent upon Sapp to show that genuine issues of material fact
did indeed exist.
Hubble v. Johnson, Ky., 841 S.W.2d 169 (1992).
Sapp failed to meet this burden.
As we have noted, Cowherd attached numerous exhibits to
the memorandum submitted in support of her motion.
These
exhibits indicate that Cowherd worked in an intake and/or
referral role with respect to Sapp and her supervisors; that she
had never spoken to Sapp's psychiatrist; that she had not
endeavored to have Sapp committed against her will; and that she
had no other influence over treatment decisions.
Faced with this
evidence, Sapp was required to come forth with some evidence to
counter Cowherd's proof.
Although Sapp alleges that Cowherd was providing what
amounted to therapy-type services to her, these allegations are
wholly unsupported.
Cowherd's evidence indicated that she acted
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to coordinate efforts aimed at assisting Sapp.
Moreover, 101 KAR
2:160 specifically provides that "[e]mployees shall participate
in counseling or treatment on their own time, or take leave as
provided by law."
The trial court did not err by concluding that
Sapp did not stand in a protected relationship or that privileged
information was not improperly shared.
Because Sapp has failed
to meet her burden of showing the existence of a genuine issue of
material fact which would counter Cowherd's evidence, summary
judgment was entirely proper in this case.
For the foregoing reasons, the judgment of the Franklin
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Pamela E. Sapp
Owensboro, KY
Daniel F. Egbers
Frankfort, KY
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