ARNOLD (JOHN W. (JACK) VS. HOLMES (RONALD)
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RENDERED: OCTOBER 1, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000514-MR
JOHN W. (JACK) ARNOLD
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 07-CI-003365
DR. RONALD HOLMES
APPELLEE
OPINION
AFFIRMING
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BEFORE: TAYLOR, CHIEF JUDGE; CLAYTON AND THOMPSON, JUDGES.
THOMPSON, JUDGE: John Arnold filed this action against Dr. Ronald Holmes
alleging that Holmes violated Kentucky’s Whistleblower Act, KRS 61.101, et seq.1
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Holmes does not contend that under KRS 61.101 he cannot be individually liable. However,
we are aware of the decision in Cabinet for Families and Children v. Cummings, 635 S.W.3d
425, 434 (Ky. 2005), where the Court held that “the language of KRS 61.101(2) does not impose
individual civil liability under Kentucky’s Whistleblower Act for reprisal against public
employees of the Commonwealth and its political subdivisions.” Because the application of that
holding is not presented by Holmes, we decline to address the issue and affirm the trial court for
the reasons expressed herein.
Arnold was hired as a deputy coroner by the Jefferson County
Coroner in 2002. After Holmes was elected coroner in 2003, Arnold remained as a
deputy coroner. Although Arnold and Holmes were once friends, their relationship
began to deteriorate and, in early 2006, the two had a disagreement over Holmes’s
decision to bring his dog to the workplace. Arnold viewed the dog in the
workplace as unprofessional and complained that he was allergic to dogs.
Nevertheless, Holmes continued to bring his dog to work.
Later in 2006, Arnold suspected that Holmes was engaged in unlawful
conduct and began a private investigation. Specifically, he believed that Holmes
was misappropriating funds donated for the “Be a Memory Maker” program,
which provided grave markers for indigent individuals. Arnold also believed that
Holmes was taking prescription drugs collected from deceased citizens’ homes and
keeping them for his own use. Finally, he believed that Holmes violated state
election laws when he coerced his employees to donate to his election campaign.
In December 2006, Arnold confronted Holmes regarding his
suspicions and threatened to inform public authorities if his behavior did not cease.
Believing that Holmes continued to engage in illegal and improper conduct,
Arnold reported his allegations to the Louisville Metro Police Public Integrity Unit
in 2007.
After his disclosure of his beliefs to Holmes and the Louisville Metro
Police, Arnold filed the present action alleging he suffered reprisal by Holmes.
However, Arnold testified that he continues in the same employment with the
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Jefferson County Corner’s Office as deputy coroner, that his work schedule has not
changed since he reported Holmes’s alleged illegal and improper conduct, that his
rate of pay has increased since the report, and that he has not been reprimanded at
work. The circuit court granted Holmes’s motion for summary judgment on the
basis that Arnold was unable to establish an adverse personnel action as
contemplated by the Whistleblower Act. We are guided in our review by the
standard applicable to a summary judgment.
The standard of review on appeal of a summary judgment is whether
the trial court correctly found “that there were no genuine issues as to any material
fact and that the moving party was entitled to judgment as a matter of law.”
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996). The record must be viewed
in the light most favorable to the party opposing the motion. Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Because factual
findings are not at issue, we do not need to defer to the trial court. Id. Using the
appropriate standard of review, we discuss the merits of Arnold’s claim.
The purpose of the Kentucky Whistleblower Act “is to protect
employees who possess knowledge of wrongdoing that is concealed or not publicly
known, and who step forward to help uncover and disclose that information.”
Davidson v. Commonwealth, Dept. of Military Affairs, 152 S.W.3d 247, 255
(Ky.App. 2004), quoting Meuwissen v. Dep't of Interior, 234 F.3d 9, 13 (Fed.Cir.
2000). To effectuate that purpose, KRS 61.102 provides as follows:
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(1) 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 the Kentucky
Legislative Ethics Commission, the Attorney General,
the Auditor of Public Accounts, the General Assembly of
the Commonwealth of Kentucky or any of its members or
employees, the Legislative Research Commission or any
of its committees, members or employees, the judiciary
or any member or employee of the judiciary, any law
enforcement agency or its employees, or any other
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.
(2) No employer shall subject to reprisal or discriminate
against, or use any official authority or influence to cause
reprisal or discrimination by others against, any person
who supports, aids, or substantiates any employee who
makes public any wrongdoing set forth in subsection (1)
of this section.
KRS 61.103(3) requires that the employee prove 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.” Id.
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In Woodward v. Commonwealth, 984 S.W.2d 477, 480-81 (Ky.
1998), the Court held that to establish a violation of KRS 61.102, an employee
must prove 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. However, the Court did not elaborate
as to the meaning of the term “personnel action” as used in KRS 61.103(3).
Both parties cite as controlling the analysis applicable to actions filed
pursuant to the Kentucky Civil Rights Act which makes it unlawful for one or
more persons “[t]o retaliate or discriminate in any manner against a person ...
because he has made a charge, filed a complaint, testified, assisted, or participated
in any manner in any investigation, proceeding, or hearing under this chapter....”
KRS 344.280(1). Both Acts are remedial in nature and both prohibit retaliation
against a person because a charge or complaint was filed. Because the Kentucky
Civil Rights Act and the Kentucky Whistleblower Act have similar purposes, we
conclude that a similar analysis is applicable to both.
In Brooks v. Lexington-Fayette Urban County Housing Authority, 132
S.W.3d 790 (Ky. 2004), our Supreme Court addressed the question of what level of
retaliatory acts by an employer that a plaintiff must show to establish a prima facie
retaliation claim under the Kentucky Civil Rights Act. The Court held that
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although KRS 344.280(1) expressly precludes retaliation “in any manner” against a
person and is to be liberally interpreted, a plaintiff must establish “a materially
adverse change in the terms and conditions of his employment” in order to state a
valid claim for retaliation. Id. at 802, quoting Hollins v. Atlantic Co., Inc., 188
F.3d 652, 662 (6th Cir. 1999) (applying this standard to Title VII cases). The
Court explained:
A materially adverse change in the terms and conditions
of employment must be more disruptive than a mere
inconvenience or an alteration of job responsibilities. A
materially adverse change might be indicated by a
termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished
material responsibilities, or other indices that might be
unique to a particular situation.
Id., quoting Hollins, 188 F.3d at 662. Consistent with Brooks, we hold that in
order to state a valid claim for retaliation under the Whistleblower Act, a plaintiff
must establish a materially adverse change in the terms and conditions of his
employment. However, any act of alleged retaliation must be viewed based on the
particular circumstances of the case. We now turn to the facts as most favorable to
Arnold.
Arnold alleges that during a December 6, 2006, meeting Holmes
attempted to discourage Arnold from disclosing his information to proper
authorities. Although Arnold testified that the meeting was taped, he did not
introduce the tape into evidence. Nevertheless, he described the conversation in
his deposition which is summarized in his brief.
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Arnold informed Holmes that he had certain incriminating evidence
against him and Holmes allegedly inquired whether Arnold and he could “work
something out.” After Arnold requested that the conduct cease, Holmes assured
him that he would cease engaging in the illegal and improper conduct but
according to Arnold, thereafter only attempted to cover up the activity. Arnold
alleges that the offer to “work something out” was an act intended to discourage
Arnold from disclosing the violations.
We are confused by his interpretation of the words spoken. Even if
Arnold’s recollection of the meeting is accurate, there was no evidence of a direct
threat to Arnold’s employment circumstances and the suggestion that “something”
be worked out is not, in its common everyday use, a phrase indicative of a threat.
We are equally not persuaded by Arnold’s remaining allegations.
Following the December meeting and subsequent report to Louisville
Metro Police, Arnold alleges that he suffered punishment accompanied by threats
of violence. He characterizes as “punishment” the relocation of his desk to an area
occupied by lower-ranking employees. However, there was testimony from coworkers that Arnold voluntarily moved his desk to avoid Holmes’s dog and no
direct testimony that the move was made in retaliation. Moreover, the mere
placement of a desk in an area with lower-ranked co-workers is not a materially
adverse change in the terms and condition of employment. As emphasized in
Brooks, reprisal “must be more disruptive than a mere inconvenience.” Id.
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To further support his claim, Arnold alleges that after he reported his
suspicions, Holmes discussed terminating Arnold with office staff and threatened
Arnold with violence. His accusations are based on information allegedly obtained
from a co-worker, Buddy Dumeyer. As did the circuit court, we have reviewed
Dumeyer’s testimony. Although he testified that in November 2006, Holmes
indicated that he may terminate Arnold, the conversation was well before Holmes
was aware of Arnold’s suspicions and as indicated by Dumeyer’s testimony was
the result of the dispute between the parties over Holmes’s dog. Moreover,
according to Arnold’s testimony, prior to Arnold’s disclosure, Holmes repeatedly
threatened his staff with termination and was generally unpleasant prior to and
after the disclosure. There is simply no affirmative evidence that the statement
was made in response to Arnold’s accusations against Holmes.
As an additional basis for his whistleblower claim, Arnold alleges that
Holmes told Dumeyer that he wanted to kill Arnold. Dumeyer testified that
Holmes did not specifically name Arnold but stated that he would “kill that
(expletive)” who he assumed referred to Arnold. However, Arnold testified that
Holmes never directly threatened him with physical violence and he did not file a
criminal complaint against Arnold. Although Holmes purchased a handgun after
Arnold made a report to the Louisville Metro Police and attended a firearms
training course, there was no evidence that the purchase was made in anticipation
of murdering Arnold and Arnold was never threatened with the gun. Indeed, the
evidence revealed that several employees of the coroner’s office participated in the
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firearms training course and carried their guns with them while working.
Moreover, the alleged isolated threat was made to a third-party. Under the
circumstances, it was not a material adverse change in the terms and conditions of
his employment.
Arnold suggests that Holmes’s inquiries when he failed to report to
work as scheduled or expected are evidence of retaliatory conduct. However, he
admits that he has never been reprimanded for tardiness or absences from work. It
was within Holmes’s employment duties to question the whereabouts of his staff
and any suggestion to the contrary is rejected.
Finally, we are not convinced that the failure to provide Arnold with a
GPS was a material adverse personnel action. Although perhaps an inconvenience,
it is not the type of action encompassed within the Whistleblower Act.
We agree with the trial court’s statement that it is not necessary for
the employee to be terminated or suffer financial retaliation to state a claim under
the Kentucky Whistleblowers Act. However, the facts as alleged by Arnold, even
if true, are not sufficient to demonstrate a material adverse change in the terms and
conditions of his employment.
Based on the foregoing, the summary judgment is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shawn Goodpaster
Amanda Hartley
Robert Mattingly
Louisville, Kentucky
Lee E. Sitlinger
Curt L. Sitlinger
Kelly M. Rowan
Louisville, Kentucky
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