MCCOWN (ROBERT) VS. GRAY KENTUCKY TELEVISION, INC. , ET AL.Annotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A. M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE, III, JUDGE
ACTION NO. 99-CI-00375
GRAY KENTUCKY TELEVISION, INC.,
D/B/A WYMT-TV; GRAY COMMUNICATIONS
SYSTEMS, INC.; AND ERNESTINE CORNETT,
** ** ** ** **
BEFORE: ACREE AND VANMETER, JUDGES; HENRY,1 SENIOR JUDGE.
ACREE, JUDGE: Robert McCown appeals from orders of the Perry Circuit Court
granting a partial directed verdict and a partial summary judgment in favor of Gray
Kentucky Television, Inc. McCown was dismissed from his job by Gray after
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
refusing to sign a chemical screening consent and release form as required of all
employees. He sued, claiming wrongful termination and asking for punitive
damages. We affirm the trial court’s orders granting judgment in favor of Gray.
Prior to his termination, McCown was employed in the technical
department of WYMT, a television station owned by Gray. In 1998, Gray adopted
a policy designed to prevent substance abuse by its employees. As part of Gray’s
new policy, employees were required to sign a chemical screening consent and
release form. Gray set a deadline of November 20, 1998, for all employees to sign
and return the forms relating to the new substance abuse policy.
When McCown failed to do so, his direct supervisor was asked to
speak to him about his failure to sign and return the forms. McCown refused to
sign the forms. The station’s Vice President and General Manager, Ernestine
Cornett, then met with McCown who informed her that he would like to contact an
attorney with regard to the release. Cornett agreed and gave him three weeks to
reconsider signing the release. McCown never contacted Cornett to inform her of
any advice obtained from an attorney. However, he did tell other employees at
WYMT that he had perused the internet and found a Kentucky statute he believed
created a legal conflict with the language of the release. Meanwhile, Cornett
consulted both the attorney who drafted the release and Gray’s general counsel to
obtain legal advice regarding the validity of the release under Kentucky law. After
reassurance by Gray’s counsel, Cornett gave McCown a final opportunity to sign
the release. When he failed to do so, he was fired.
McCown filed a complaint against Gray alleging he was wrongfully
terminated from employment in violation of Kentucky law. Eventually, he
amended his complaint to request punitive damages, claiming that Gray acted with
oppression and malice. At trial, the court granted a directed verdict in Gray’s favor
on the wrongful termination claim and granted summary judgment for Gray on the
issue of punitive damages. This appeal followed.
McCown argues first that the trial court granted Gray’s motion for a
directed verdict contrary to the standard set forth in Kentucky Rules of Civil
Procedure (CR) 50.01. That rule allows “the [trial] court [to] direct a verdict
where there is no evidence of probative value to support the opposite result.”
Gibbs v. Wickersham, 133 S.W.3d 494, 496 (Ky.App. 2004). In ruling as it did,
the trial court correctly recognized that Kentucky follows the doctrine of at-will
employment, permitting an employer to fire employees “for good cause, for no
cause, or for a cause that some might view as morally indefensible[.]” Grzyb v.
Evans, 700 S.W.2d 399, 400 (Ky. 1985)(citation omitted). However, the Grzyb
Court did adopt the position of the Michigan Supreme Court in Suchodolski v.
Michigan Consolidated Gas Co., 316 N.W.2d 710 (Mich. 1982), recognizing two
exceptions in which discharging an employee is so contrary to public policy that it
becomes actionable. First, an employee’s termination can be actionable where it is
based upon the employee’s refusal to perform an illegal act as a condition of
employment. Second, we recognize a cause of action for wrongful termination
where an employee is fired for exercising a legal right conferred by a statute.
Grzyb, 700 S.W.2d at 402. McCown claims this second exception applies here.
McCown claims his termination violated Kentucky Revised Statute
(KRS) 336.700 which reads, in relevant part, as follows:
(2) Notwithstanding any provision of the Kentucky
Revised Statutes to the contrary, no employer shall
require as a condition or precondition of employment that
any employee or person seeking employment waive,
arbitrate, or otherwise diminish any existing or future
claim, right, or benefit to which the employee or person
seeking employment would otherwise be entitled under
any provision of the Kentucky Revised Statutes or any
In its order granting a directed verdict, the trial court stated that McCown failed to
present evidence of any right which he would be required to give up if he signed
the release. The Kentucky Supreme Court has previously stated that wrongful
discharge will only be found where it is “contrary to a fundamental and welldefined public policy . . . evidenced by a constitutional or statutory provision.”
Grzyb, 700 S.W.2d at 401. Further, the determination of whether the public policy
claimed by the discharged employee meets these criteria is a question of law. Id.
In this case, the trial court found that the release was limited in application and did
not encompass waiver of any clearly defined rights. Thus, McCown’s discharge
for refusing to sign the release did not violate public policy.
But McCown interprets the language of Gray’s release as forcing him
to waive potential claims arising out of any injury sustained during the process of
obtaining a specimen or sample for testing. According to McCown, if he suffered
such an injury, for example becoming infected with a blood-born disease, he would
be unable to pursue either workers’ compensation benefits or a personal injury
claim due to his having signed the release. The language which McCown found
objectionable reads as follows:
I hereby release and hold harmless the Company, the
medical review officer or other medical professionals, the
laboratory, their employees, agents and contractors from
liability arising from this request to furnish this or any
specimen or sample, the testing of the specimen or
sample, and any decisions made concerning my
application for employment or my continued
employment, based upon the results of the tests.
The trial court concluded, as a matter of law, that the language of the release did
not require McCown to waive the protections of the workers’ compensation
statute. As noted by the trial court, the release covered only claims arising from
the request to furnish a sample, the testing of samples, and any adverse
employment decision based on the test results. The release did not address or
require the release of any claims arising out of the actual taking of samples.
The Kentucky Supreme Court has previously determined that a
release which waives liability for injury must contain very specific elements.
Specifically, a preinjury release will be upheld only if (1)
it explicitly expresses an intention to exonerate by using
the word “negligence;” or (2) it clearly and specifically
indicates an intent to release a party from liability for a
personal injury caused by that party's own conduct; or (3)
protection against negligence is the only reasonable
construction of the contract language; or (4) the hazard
experienced was clearly within the contemplation of the
Hargis v. Baize, 168 S.W.3d 36, 47 (Ky. 2005)(citation omitted). The release
which Gray required its employees to sign does not contain any of the elements of
a valid preinjury release. There is no mention of negligence, nor does the release
purport to indemnify Gray in the event that an employee suffers a personal injury
due to the drug testing procedure. Protection against liability for negligence is not
the only reasonable construction of the language. A reasonable interpretation of
the language in the release is that it protected Gray from claims by any employee
who experienced adverse employment consequences after an incorrect positive
drug or alcohol test result. Further, nothing in the language of the release indicates
that it contemplated an employee’s personal injury resulting from testing. In fact,
Gray agrees that employees who sign the release retain the right to seek workers’
compensation benefits or to pursue a claim for personal injury against the testing
facility in the event they suffer an injury while providing a sample or specimen.
McCown failed to correctly identify any right clearly granted by
statute or constitution which would be waived by the portion of the release to
which he objects. Thus, he is unable to persuade this Court that Gray violated
KRS 336.700(2) by requiring its employees to sign the release. Since he did not
offer any evidence that he was fired for refusing to violate a law or as retaliation
for exercising a legally protected right, the trial court properly found that there was
“no evidence of probative value to support” his claim that his firing violated public
policy. Gibbs, 133 S.W.3d at 496. Consequently, the trial court acted properly in
directing a verdict in favor of Gray on the issue of wrongful termination.
McCown also argues that the trial court wrongfully granted Gray’s
motion for summary judgment on his claim for punitive damages and its motion in
limine to exclude evidence of the Kentucky Unemployment Insurance
Commission’s decision regarding his application for unemployment benefits.
Because we conclude that the trial court’s decision granting Gray’s motion for
directed verdict regarding the wrongful termination issue was correct, this opinion
need not reach the remaining grounds raised in McCown’s appeal. For the
foregoing reasons, the judgment of the trial court is affirmed.
ORAL ARGUMENT AND BRIEFS
ORAL ARGUMENT FOR
Daniel F. Dotson
Rebecca Williams Shanleve
BRIEF FOR APPELLEES:
Randall Scott May
Robert H. Buckler
Rebecca Williams Shanleve