o CABINET FOR FAMILIES AND CHILDREN ; CARY WILLIS ; SHARON PERRY ; AND VIOLA MILLER, SECRETARY V. DR . SCOTT CUMMINGS ; CAROL GARRISON ; AND NANCY MARTIN DR . CAROL GARRISON ; AND DR . NANCY MARTIN V. JEFFERSON CIRCUIT COURT NO . 99-C1-5283 DR . SCOTT CUMMINGS ; CABINET FOR FAMILIES AND CHILDREN ; CARY WILLIS ; SHARON PERRY ; AND VIOLA MILLER DR . SCOTT CUMMINGS V. DR . CAROL GARRISON ; CABINET FOR FAMILIES AND CHILDREN ; CARY WILLIS ; DR . NANCY MARTIN ; SHARON PERRY ; AND
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2002-SC-0788-DG
CABINET FOR FAMILIES AND CHILDREN ;
CARY WILLIS; SHARON PERRY ; AND VIOLA
MILLER, SECRETARY
V.
F,'~A7
AND
APPELLEES
2002-SC-0791-DG
DR. CAROL GARRISON ; AND
DR. NANCY MARTIN
APPELLANTS
APPEAL FROM COURT OF APPEALS
2000-CA-1468
JEFFERSON CIRCUIT COURT NO . 99-C1-5283
DR. SCOTT CUMMINGS ; CABINET FOR
FAMILIES AND CHILDREN ; CARY WILLIS ;
SHARON PERRY; AND VIOLA MILLER
AND
APPELLEES
2003-SC-0456-DG
DR. SCOTT CUMMINGS
V.
APPELLANTS
APPEAL FROM COURT OF APPEALS
2000-CA-1468
JEFFERSON CIRCUIT COURT NO. 99-CI-5283
DR . SCOTT CUMMINGS ; CAROL GARRISON ;
AND NANCY MARTIN
V.
0-
APPELLANT
APPEAL FROM COURT OF APPEALS
2000-CA-1468
JEFFERSON CIRCUIT COURT NO. 99-CI-5283
DR. CAROL GARRISON; CABINET FOR
FAMILIES AND CHILDREN; CARY WILLIS ;
DR. NANCY MARTIN ; SHARON PERRY; AND
VIOLA MILLER
APPELLEES
OPINION OF THE COURT
AFFIRMING IN PA RT, REVERSING IN PART
In 1999, Dr. Scott Cummings ("Cummings") filed suit against the Cabinet for
Families and Children ("the Cabinet"), individual employees of the Cabinet, Viola Miller,
Sharon Perry and Cary Willis, as well as the University of Louisville ("the University"),
and individual University employees, Dr. Garrison and Dr. Martin for violations of the
Kentucky Whistleblower Act ("the Act"). The Jefferson County Circuit Court granted
summary judgment to all defendants except the University, finding that (1) Cummings
was not an employee of the Cabinet, and (2) the Act did not create a cause of action for
individual liability . Cummings appealed to the Court of Appeals, which reversed the trial
court's dismissal of the underlying charges . We accepted discretionary review of all
three cases and hereby affirm in part and reverse in part the decision of the Court of
Appeals.
FACTS
Prior to September 1999, Cummings was a tenured professor at the University.
In addition, he was Director of the Center for Policy Research and Evaluation for the
Urban Studies Institute ("the Institute") at the University. As such, he and another
colleague sought to secure a grant for the study of welfare reform across the state by
submitting a proposal titled "A Plan to Evaluate the Implementation and Impact of
Welfare Reform in Kentucky" ("the Proposal") to the Cabinet. Soon thereafter, the
Cabinet and the University's Institute entered into a Program Administration Contract
("the Contract"), which allotted approximately $500,000 annually to the Institute to
create a database from which panel studies could be conducted in order to evaluate the
impact of welfare reform in Kentucky. The Contract specifically incorporated
Cummings's Proposal into the agreement, although Cummings himself did not sign the
Contract .
Pursuant to the Contract, the Institute agreed to conduct panel studies, work in
conjunction with the Cabinet to create appropriate indicators, submit invoices for
requested payments at the end of each month, and provide information to the Cabinet
upon request. The Institute was required to meet certain benchmarks for delivering
reports (i .e ., conduct phone surveys, provide preliminary findings, submit a project
summary report, and provide the Cabinet with a bi-monthly narrative status report)
unless otherwise approved by the Cabinet. Conversely, the Cabinet was to provide all
requested information, and provide consultation and technical assistance ("defining the
requirements, analysis, detail specifications, coding, testing, debugging and
implementation") to the Institute. The Cabinet was to also monitor all activities pursuant
to the agreement . The Contract stated that the Cabinet disclaimed all liability for Social
Security contributions relating to the compensation of the Institute.
In exchange for Cummings's work on the study, the Cabinet reimbursed the
University one-third of Cummings's salary and fringe benefits during the fail and spring
semesters and paid Cummings's full salary and fringe benefits during the summer .
Cummings's teaching load at the University was reduced proportionately .
Cummings alleges that he was removed from his position on the study because
he intended to disclose at a scheduled hearing before the Legislative Research
Committee ("LRC") that welfare reform in Kentucky had a disparate impact upon
African-American and Appalachian families . Cummings alleges that the Cabinet
cancelled his appearance before the LRC and that the University, at the direction of the
Cabinet, removed him from the study.
STANDARD OF REVIEW
"The standard of review on appeal of a summary judgment is whether the circuit
judge correctly found that there were no issues as to any material fact and that the
moving party was entitled to a judgment as a matter of law." Pearson ex rel . Trent v.
Nat'l Feedinq Systems, Inc. , 90 S .W .3d 46, 49 (Ky. 2002) . Summary judgment is only
proper when it would be impossible for the plaintiff to produce any evidence at trial
warranting a judgment in his favor . Steelvest, Inc. v. Scansteel Serv. Ctr., Inc. , 807
S .W.2d 476, 480 (Ky. 1991) . In ruling on a motion for summary judgment, the court is
required to construe the record in a light most favorable to the party opposing the
motion . Id. The proper question then becomes whether the trial court properly held as
a matter of law (1) that Cummings was not an employee of the Cabinet, and (2) that the
individual employees of the Cabinet and University were not liable under the Act.
EMPLOYER/EMPLOYEE RELATIONSHIP
The Cabinet argues that Cummings was not an "employee" of the Cabinet. KRS
61 .101(1) defines "employee" as follows :
(1) "Employee" means a person in the service of the
Commonwealth of the Kentucky, or any of its political
subdivisions, who is under contract of hire, express or
implied, oral or written, where the Commonwealth, or any
of its political subdivisions, has the power or right to
control and direct the material details of work
performance[.]
KRS 61 .102 prohibits employers from subjecting public employees to reprisal for
reporting information relating to the employer's violation of the law, alleged fraud, or
abuse, etc. It is undisputed that the Cabinet is an "employer" under the Act, as it is a
political subdivision of the Commonwealth . See KRS 61 .101(2). However, the Cabinet
alleges, and the trial court agreed, that since Cummings was not a party to the Contract
-4-
between the University's Institute and the Cabinet, he was not an "employee" of the
Cabinet for purposes of the Act .
The Cabinet directs us to Stewart v. University of Louisville , 65 S .W .3d 536 (Ky.
App . 2001), for guidance. In Stewart, the Court of Appeals found that a graduate
student and recipient of a Regent's Fellowship, which provided for a yearly stipend for
study, was not an "employee" of the University for purposes of Kentucky's discrimination
statute (KRS 344.030) and KRS 61 .102 . The court held that although the graduate
student received regular checks from the University, was required to submit reports to
the University, and was not allowed to accept outside employment without the
University's permission, the reality of the underlying relationship was not that of
employer-employee . Id . at 539-540 . Although suit was brought pursuant to KRS
61 .102, as well as KRS 344.030, the Court of Appeals's analysis seemed to rely
primarily on principles relating to KRS 344 .030 and Title VII . Id . at 539 ("In determining
whether an individual will be deemed an 'employee' for Title VII purposes, 'one must
examine the economic realities underlying the relationship between the individual and
the so-called principal in an effort to determine whether that individual is likely to be
susceptible to the discriminatory practices which the act was designed to eliminate."'
(quoting Armbruster v. Quinn, 711 F .2d 1332, 1340 (6th Cir. 1983)) . Nonetheless,
Stewart is easily distinguishable from the current situation . The court there found that
the majority of the graduate student's duties were in furtherance of her academic work,
rather than in performance of services for the University; and therefore, the "economic
realities" of the situation dictated that she was not an employee of the University. Id. at
540 . In the current case, Cummings's duties and activities related to the study were
clearly for the service of the Cabinet . In theory, the Cabinet was to use the findings of
-5-
the study to present the LRC with an accurate picture of the effectiveness of the current
welfare reform laws . In exchange for his work, the Cabinet paid a portion of
Cummings's salary . The dynamics of the relationship in the case at bar are certainly
different than those in Stewart, whose holding is best confined to its particular facts, and
our holding today is not inconsistent with the opinion in that case.
The trial court based its decision that Cummings was not an employee of the
Cabinet on the fact that the only contract governing the study was between the Cabinet
and the University. The court stated that although "Dr. Cummings may have obtained
the contract for the University with the tacit understanding that he would perform the
contract," the fact remained that he was not a party to the contract . We do not agree
however, that the Contract entered into between the Cabinet and the University's
Institute is the only governing document of the arrangement . The language of the
Contract specifically delineates that the Institute is to perform certain enumerated
services for the Cabinet . Section 1 . p . of the Contract states that the Institute is to
"[p]efoorm all of the services identified in the Second Party's [Institute's] proposal dated
October 1997 and titled 'A PLAN TO EVALUATE THE IMPLEMENTATION AND
IMPACT OF WELFARE REFORM IN KENTUCKY,' which is hereby incorporated into
this agreement as if attached . . . ." That agreement was submitted and co-authored by
Cummings and his name appears conspicuously throughout. The Proposal specifically
identifies Cummings as "Director of the Center for Policy Research and Evaluation" and
states that he will serve as "Co-principal Investigator" and "Co-chair of the Advisory
Committee" for the study . The Proposal also contains the salary requirement of
Cummings, and others chosen by him, in the annual budget. We believe by the express
incorporation of Cummings's Proposal into the Contract between the Cabinet and the
Institute, Cummings became a person "under contract of hire" with the Cabinet, a
political subdivision of the Commonwealth of Kentucky. KRS 61 .101(1) . As such,
Cummings could be considered an employee of the Cabinet, for purposes of the Act, if
the Cabinet "has the power or right to control and direct the material details of
[Cummings's] work performance ." Id .
Construing the evidence in the record in a light most favorable to Cummings,
we must conclude that the trial court erred in granting the Cabinet summary judgment
on this issue . The record shows that the Cabinet had the right to control and did control
the details of Cummings's work on the study. The Contract itself states that the Cabinet
would provide the database with which Cummings was to work . The Cabinet was
permitted to add additional recipients to "supplement under-reported categories" in the
panel if necessary; work in conjunction with the Institute to determine the appropriate
indicators to study ; provide consultation and technical assistance to the Institute ; and
monitor all activities pursuant to the Contract . Cummings was to report his findings to
the Cabinet regularly. In addition, the Cabinet had control over what information was
presented to other state agencies, the public, the media, and the Legislature .
Cummings's affidavit alleges that the Cabinet dictated the specific details of the manner
in which he was to draw the samples, create certain questionnaires, and analyze and
interpret the data . Cummings further contends that he was not permitted to use his
professional expertise in any of the determinations made, and that this manner of
control by the Cabinet was not usually seen in this type of situation . Cummings states
that he met regularly with Cabinet officials in person and via e-mail, regarding the
progress of the research, and that several of his reports were extensively re-written by
the Cabinet . Cummings also states that the Cabinet used a detailed "Gantt chart,"
which specified certain time lines and work product deadlines Cummings was required
to meet, as a tool to monitor the Institute's work on the study. The record also revealed
copies of e-mails between Cummings and Cabinet employees where Cummings was
specifically asked to remove the word "disparate" from his findings .
Also telling is that the Cabinet had enough control over Cummings's work that it
was ultimately able to remove him from the study altogether . The Act's prohibition on
retaliatory firing necessarily implies that an employer must be in a position to retaliate
with the threat of one's job. This is a type of situation that we believe the General
Assembly envisioned and sought to protect when it enacted the Act. Accordingly, we
find that it was improper for the trial court to grant summary judgment to the Cabinet, as
the Cabinet and Cummings exhibited the type of employer-employee relationship
encompassed by the Act's provisions on whistleblowing .
INDIVIDUAL LIABILITY
The trial court also granted summary judgment to the individual employees of the
Cabinet and Drs . Martin and Garrison, Cummings's supervisors at the University,
because it concluded that the Act did not create a cause of action against individuals .
Whether the Act provides a cause of action against individuals is an issue of first
impression for this Court .
Cummings argues that the plain language of the statute defines employer as
including "any person" and therefore, the plain meaning rule of statutory construction
dictates that we construe "person" according to its common usage and literal meaning.
KRS 446.080(4); Crenshaw v. Weinbem, 805 S .W.2d 129, 133 (Ky. 1991) . Any other
construction, according to Cummings, would render the second sentence in KRS
61 .101(2) superfluous . Garrison and Martin, on the other hand, argue that the term
"person" is ambiguous and to apply the plain meaning rule would produce an absurd
result . Executive Branch Ethics Com'n v. Stephens, 92 S .W.3d 69 (Ky. 2002) . Garrison
and Martin contend that the second sentence in KRS 61 .101(2) is present merely to
incorporate a respondeat superior liability upon employers . We agree.
This Court has "a duty to accord to words of a statute their literal meaning unless
to do so would lead to an absurd or wholly unreasonable conclusion ." Bailey v. Reeves ,
662 S .W .2d 832, 834 (Ky. 1984) . Statutory interpretation is a matter of law and we are
not required to give deference to the trial court's decision . Commonwealth v. Plowman,
86 S .W .3d 47, 49 (Ky. 2002) . Our main objective is to construe the statute in
accordance with its plain language and in order to effectuate the legislative intent. Id.
The definition of who is an "employer" under the Act is :
"Employer" means the Commonwealth of Kentucky or any of
its political subdivisions . Employer also includes any person
authorized to act on behalf of the Commonwealth, or any of
its political subdivisions , with respect to formulation of policy
or the supervision, in a managerial capacity, of subordinate
employees .
KRS 61 .101(2) (emphasis added). "[I]t is well-settled that 'in expounding a statute, we
must not be guided by a single sentence or member of a sentence, but [must] look to
the provisions of the whole law, and to its object and policy."' Wathen v. General
Electric Co . , 115 F .3d 400, 405 (6 th Cir. 1997) (citing Pilot Life Ins. Co . v. Dedeaux , 481
U.S . 41, 51, 107 S .Ct. 1549, 1555, 95 L.Ed .2d 39 (1987)); Democratic Party of
Kentucky v. Graham, 976 S.W.2d 423, 429 (Ky. 1998) ; see Combs v. Hubb Coal Corp. ,
934 S .W .2d 250, 252-253 (Ky. 1996) ; Henry v. Commonwealth , 312 Ky. 491, 493, 228
S .W.2d 32, 33 (1950).
In the penalty section of Kentucky's Whistleblower Act, the Legislature provided
for criminal liability for individuals who willfully violate the Act, showing that the
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Legislature knew how to provide for individual civil liability for policy makers and
managers if it had intended to do so. The fact that only the Commonwealth or one of its
political subdivisions could grant much of the relief afforded by the Act, i.e.,
"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," KRS 61 .990(4), reinforces this Court's conclusion that the Legislature did not
intend for policy makers and managers to be individually liable under the Act. See
Abbamont v. Piscataway Township Bd. of Education , 650 A.2d 958, 964 (N .J . 1994) ;
Aleiandro v. Robstown Independent School District , 131 S .W.3d 663, 668-669 (Tex . Ct.
App . 2004) . By providing that an aggrieved employee may be awarded "any
combination" of the relief allowed under the Act, the Legislature clearly intended to
afford an aggrieved employee all of the relief allowed under the Act. This purpose is
defeated if an aggrieved employee could maintain an action solely against a policy
maker or manager without joining the Commonwealth or a political subdivision as a
party defendant.
In examining the "any person" language of the statute, one might argue that this
language seems unnecessary or redundant because it was intended only as another
way to bind the Commonwealth and its agencies . However, there is a very valid and
logical reason for this language, which, indeed, binds the Commonwealth and its
agencies for the acts of policy makers and managers. Under the common law, an
employer is not liable for the torts committed by its employees acting outside the scope
of their employment . Roethke v . Sanger, 68 S.W .3d 352, 361 (Ky. 2001) ; Osborne v.
Payne , 31 S .W .3d 911, 915 (Ky. 2000); Wood v. Southeastern Greyhound Lines , 302
Ky. 110, 194 S .W .2d 81 (1946) . Thus, without the Act's definition of "employer," the
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Commonwealth, itself, would have no liability to an aggrieved employee if it was
determined that the policy maker or manager was acting outside the scope of his or her
employment. But, under the Act, it is not an issue whether the policy maker or manager
is acting outside his or her employment since a violation of the statute necessarily
involves the exercise of managerial or policy making authority. Thus, the
Commonwealth or its agencies are per se liable for the acts of a policy maker or
manager in violation of the statute, and the purpose of the second sentence is not only
to ensure that the Commonwealth or its agency will be held liable if their policy makers
and managers take actions later to be found a violation of the Act, but also to ensure
that the Commonwealth or its agency cannot avoid liability by arguing that a policy
maker or manager acted outside the scope of his or her employment .
In interpreting similar definitions of "employer" contained in parallel federal acts
and whistleblower acts of other states, "a majority of circuits have found no individual
liability ." Title VII (42 U .S .C.A. §§ 2000e et seq . ) ; ADEA (29 U .S .C .A. §§ 621 et seg . ) ;
ADA (U .S .C.A . §§12101 et seq. ); Lococo v. Barger, 958 F.Supp. 290, 295 (E.D. Ky .
1997), affd in part, rev'd in part, on other grounds by 234 F .3d 1268 (6th Cir. 2000). In
fact, "a growing consensus exists among the courts" that "the 'agent' language is used
to incorporate the theory of respondeat superior, 'rather than [to] expose either
supervisors or co-workers to personal liability in employment discrimination cases."'
Obst v. Microtron, Inc. , 588 N .W .2d 550, 553, 554 (Minn . Ct. App. 1999), affd by 614
N .W .2d 196 (Minn . 2000) (citing D.W . v. Radisson Plaza Hotel Rochester, 958 F.Supp.
1368, 1375 (D.Minn . 1997); citing Lehardt v. Basic Institute of Technology, 55 F.3d
377,380(8th Cir . 1995)) ; see Wathen v. General Electric Co . , 115 F.3d 400, 406 (6th
Cir. 1997) .
Although in Morris v. Oldham County Fiscal Court , 201 F.3d 784 (6th Cir. 2000)
the United States Court of Appeals for the Sixth Circuit discredited its previous use of
the definition of employer contained in Title VII, Morris concerned a different statute
(KRS 344 .280) than the one in question here, and has no bearing on the interpretation
of KRS 61 .101(2). Morris , which rejected reference to Title VII, was concerned with
Kentucky's Civil Rights Act, which expressly provides that "a person, or . . . two (2) or
more persons" are liable for a violation of this Act, and defines a person to include, inter
alia, an individual, a partnership, a corporation, or the Commonwealth, but not an agent .
KRS 344.280 (emphasis added). However, in both the Kentucky Whistleblower Act and
Title VII, the Commonwealth or the company and any agent or person authorized to act
on its behalf are held liable. KRS 61 .101(2) ("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" (emphasis added)) ; 42 U .S .C.A . §
2000e(b) ("a person engaged in an industry affecting commerce who has fifteen or more
employees . . . and any agent of such person" (emphasis added)).
Accordingly, since KRS 61 .101(2) and Title VII share references to agents, while
the Kentucky Civil Rights Act does not, Title VIPs definition is more analogous to the
definition in Kentucky's Whistleblower Act than is the definition contained in Kentucky's
Civil Rights Act. Thus, cases interpreting Title VII's definition of employer, as well as the
definitions contained in the ADEA, 29 U.S .C.A . § 630(b) ("'[E]mployer' means a person
engaged in an industry affecting commerce . . . [and] any agent of such person ."), and
the ADA, 42 U .S.C.A. § 12111(5)(A) ("'[E]mployer' means a person engaged in an
industry affecting commerce . . . and any agent of such person ."), are helpful and
applicable in determining the scope of similar language in Kentucky's Whistleblower Act
- 1 2-
because "'all the definitions of employer in these statutes are worded to cover the
"agent" of the employer ."' Reno v. Baird , 957 P.2d 1333, 1337 (Cal . 1998) (citing
Janken v. GM Hughes Electronics, 53 Cal .Rptr.2d 741, 748 (Cal . Ct. App. 1996)).
"Many courts have found that . . . the definition of 'employer' serves to establish
an employer's respondeat superior liability, rather than personal liability for company
employees ." Shannon Clark Kief, Annotation, Individual Liability of Supervisors,
Managers, Officers or Co-employees for Discriminatory Actions Under State Civil Rights
Act, 83 A .L .R .5th 1 §2(a) (2004) .
[S]ince 1993, eight federal circuits have either (1) held that
the "agent" language does not create individual liability for
discrimination, or (2) found that, although individuals can be
sued in their official or representative capacity, they may not
be sued in their individual capacity and have no personal
liability, or (3) interpreted similar language in a state statute
as not creating individual liability.
Reno , 957 P .2d at 1337 . In addition, other federal district courts and state courts have
reviewed this issue and have determined that their respective whistleblower schemes
did not create individual liability for supervisors . United States ex rel . Lamar v. Burke,
894 F.Supp. 1345 (E .D . Mo. 1995) (holding that since Title VII's definition was broader
and yet did not impose individual liability on supervisors, the narrower, ordinary and
natural meaning of employer for purposes of the False Claims Act did not impose
individual liability on employee/supervisors); Palladino v. VNA of Southern New Jersey,
Inc. , 68 F.Supp.2d 455 (D. N.J . 1999) (holding that corporate officers and supervisors
were not subject to individual liability under the federal False Claims Act because the
Act prohibited discrimination with respect to employment conditions and only an
employer could logically grant the relief made available) ; Reno v. Baird, 957 P.2d 1333,
1337 (Cal . 1998) (citing Janken v. GM Hughes Electronics , 53 Cal .Rptr.2d 741, 747
-13-
(Cal . Ct. App. 1996)) (rejecting individual liability and stating the agent language was
intended to "'ensure that employers will be held liable if their supervisory employees
take actions later to be found discriminatory, and that employers cannot avoid liability by
arguing that a supervisor failed to follow instructions or deviated from the employer's
policy"'); Obst v. Microton, Inc. , 588 N .W.3d 550 (Minn . Ct. App. 1999) (declining to
hold individuals liable under Minnesota's whistleblower statute) ; Alejandro v. Robstown
Independent School District , 131 S.W .3d 663, 668 (Tex . Ct. App. 2004) (holding that
there is no private right of action against the superintendent or members of the board of
trustees in their individual capacities because the "Act creates a private cause of action
against the employing 'state or local governmental entity"') . For example, in Abbamont
v. Piscataway Township Board of Education , 650 A.2d 958 (N .J. 1994) the New Jersey
Supreme Court rejected individual liability under its Whistleblower provisions, which
contained a definition of employer similar to the definition in Kentucky's Act. Id . at 963
(Under the New Jersey Act, "an employer can be 'any person or group of persons acting
directly or indirectly on behalf of or in the interest of an employer with the employer's
consent."' (citation omitted)). The Court noted that the employer was the "'party with the
power and responsibility . . . to take . . . remedial action"' under the statute and "that to
fulfill the remedial purposes of . . . [the Act], employers should be strictly liable for
equitable relief in the nature of reinstatement, restoration of back pay and the like." Id.
at 964 (citation omitted) .
The Kentucky Whistleblower Act, as a whole, is inconsistent with individual
liability. It imposes civil liability on the Commonwealth and its agencies for actions of
policy makers and managers, while the individual policy makers and managers face
only criminal liability for willful violations of the Act. Had the Legislature wanted to
-1 4-
impose individual civil liability on policy makers and managers it could have done so.
As it stands, however, the criminal liability provision works in connection with
respondeat superior liability because it provides a punishment for those who would
otherwise escape civil liability . Since the statutory scheme provides no avenue for suits
against policy makers and managers in their individual capacity (only criminal
prosecutions), punitive damages cannot be collected from individuals and the inclusion
of punitive damages as an available remedy does not impose or indicate an intention to
hold them individually liable .
Accordingly, 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 .
CONCLUSION
For the foregoing reasons, the Court of Appeals's decision is affirmed in part, and
reversed in part and the Jefferson Circuit Court's grant of summary judgment in favor of
the individual employees Miller, Perry, and Willis, and Drs. Garrison and Martin, is
hereby affirmed, and the grant of summary judgment in favor of the Cabinet is hereby
reversed and remanded for further proceedings consistent with this opinion .
Lambert, C .J . ; Graves, Johnstone, Keller, Scott and Wintersheimer, JJ ., concur.
Cooper, J., concurs in part and dissents in part by separate opinion .
COUNSEL FOR CABINET FOR FAMILIES AND CHILDREN;
CARY WILLIS ; SHARON PERRY ; AND VIOLA MILLER, SECRETARY:
Jonathan Goldberg
Goldberg & Simpson, PSC
3000 National City Tower
Louisville, KY 40202
Jan M. West
Goldberg & Simpson, PSC
3000 National City Tower
Louisville, KY 40202
Katherine A. Kingren
Cabinet for Families and Children
Office of the General Counsel
275 East Main Street, 4 WC
Frankfort, KY 40621
Nora K. McCormick
Cabinet for Families and Children
275 East Main Street, 4 WC
Frankfort, KY 40621
COUNSEL FOR DR. SCOTT CUMMINGS :
Priscilla S . Diamond
6008 Brownsboro Park Blvd .
Suite C
Louisville, KY 40207
COUNSEL FOR DR. CAROL GARRISON AND
DR. NANCY MARTIN :
David A . Friedman
National City Tower
101 South 5th Street
Suite 2400
Louisville, KY 40202
William B. Pettus
Assistant Attorney General
Civil and Environmental Law
700 Capital Avenue
Capitol Building, Suite 18
Frankfort, KY 40601
- 1 6-
Donna King Perry
Woodward, Hobson & Hobson
2500 National City Tower
101 South Fifth Street
Louisville, KY 40402-3175
Elizabeth N . Monohan
2500 National City Tower
Louisville, KY 40202
RENDERED : MAY 19, 2005
TO BE PUBLISHED
Q
,vuprrmr C~vurf of ~rnfixxhV
2002-SC-0788-DG
CABINET FOR FAMILIES AND
CHILDREN; CARY WILLIS ; SHARON
PERRY; AND VIOLA MILLER,
SECRETARY
APPELLANTS
APPEAL FROM COURT OF APPEALS
2000-CA-1468
JEFFERSON CIRCUIT COURT NO . 99-CI-5283
DR . SCOTT CUMMINGS ; CAROL
GARRISON ; AND NANCY MARTIN
AND
2002-SC-0791-DG
DR. CAROL GARRISON; AND
DR. NANCY MARTIN
V.
APPELLANTS
APPEAL FROM COURT OF APPEALS
2000-CA-1468
JEFFERSON CIRCUIT COURT NO. 99-CI-5283
DR . SCOTT CUMMINGS ; CABINET FOR
FAMILIES AND CHILDREN; CARY
WILLIS ; SHARON PERRY; AND VIOLA
MILLER
AND
APPELLEES
2003-SC-0456-DG
DR . SCOTT CUMMINGS
V
APPELLEES
APPELLANT
APPEAL FROM COURT OF APPEALS
2000-CA-1468
JEFFERSON CIRCUIT COURT NO . 99-CI-5283
DR. CAROL GARRISON ; CABINET FOR
FAMILIES AND CHILDREN ; CARY
WILLIS ; DR . NANCY MARTIN; SHARON
PERRY; AND VIOLA MILLER
APPELLEES
OPINION BY JUSTICE COOPER
CONCURRING IN PART AND DISSENTING IN PART
I concur in the majority opinion's conclusion that Dr. Cummings was an
"employee" of the Cabinet for Families and Children as that term is defined in KRS
61 .101(1). However, I dissent from the majority opinion's conclusion that individual
policy-makers and managerial supervisors of so-called "whistleblowers" are not
included within the definition of "employer" as that term is defined in KRS 61 .101(2) .
The statutory language pertinent to this issue is as follows :
KRS 61 .101 .
(2) "Employer" means the Commonwealth of Kentucky or any of its
political subdivisions . Employer also includes any person authorized
to act on behalf of the Commonwealth, or any of its political
subdivisions with respect to formulation of policy or the supervision, in
a mana erial capacity, of subordinate employees ;
KRS 61 .102.
(1) No employer shall subject to reprisal . . . any employee who in good
faith reports, discloses, divulges, or otherwise brings to the attention of
. . . any . . . 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
. . . 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 .103 .
(2) Notwithstanding the administrative remedies granted by KRS
Chapters 16, 18A, 78, 90, 95, 156, and other chapters of the Kentucky
Revised Statutes, 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, within ninety (90) days after the occurrence of the
2
alleged violation . The action maybe filed in the Circuit Court for the
county where the alleged violation occurred, the county where the
complainant resides, or the county where the person against whom
the civil complaint is filed resides or has his principal place of
business .
KRS 61 .990.
(3) Any person who willfully violates the provisions of KRS 61 .102(1) shall
be guilty of a Class A misdemeanor.
(Emphasis added.)
Nothing could be more obvious from the plain language of this statutory scheme
than the intent of the General Assembly to make its provisions applicable not only to the
Commonwealth and its political subdivisions but also to "person(s)" occupying policy
making or supervisory positions with respect to the offended employee. The majority
opinion concludes, however, that the "any person" language of KRS 61 .101(2) only
creates vicarious liability in the Commonwealth for the actions of its policy-making or
supervisory employees . But if so, why establish as a venue for the civil action
authorized by KRS 61 .103(2) "the county where the person against whom the civil
complaint is filed resides"? The majority opinion concedes that KRS 61 .990(3) imposes
criminal liability on "individuals" who willfully violate the act. Ante , at
(slip op .
at 10, 15). Yet, only "employers" can violate KRS 61 .102(1), and the majority holds that
the only "employers" under the Act are the Commonwealth and its political subdivisions .
Of course, the Commonwealth and its political subdivisions are not subject to criminal
penalties - only "persons" and "corporations" can be convicted of Class A
misdemeanors . KRS 532.030(3), .090(1) ; KRS 534.040(2), .050(1)(b).
"It is a general rule of law that statutes which are remedial in nature are entitled
to a liberal construction in favor of the remedy provided by law, or in favor of those
entitled to the benefits of the statute." Ky. Ins . Guar . Ass'n v. Jeffers ex rel . Jeffers, 13
S.W.3d 606, 611 (Ky. 2000) (quoting 73 Am .Jur .2d Statutes , § 278 (1974)) .
Whistleblower acts are remedial in nature . See . ea Martin County v. Edenfield , 609
..,
So.2d 27, 29 (Fla . 1992) ("As a remedial act, the [whistleblower] statute should be
construed liberally in favor of granting access to the remedy.") ; Chandler v. Dowell
Schlumberger Inc., 572 N .W.2d 210, 215 (Mich . 1998) ("The WPA [Whistleblower
Protection Act], as a remedial statute, is to be liberally construed to favor the persons
the Legislature intended to benefit ."); Scott v. Godwin , 147 S .W .3d 609, 621 (Tex . Ct.
App . 2004) ("Because the Whistleblower Act is remedial in nature, it should be liberally
construed to effect its purpose.") . Furthermore :
"We have a duty to accord to words of a statute their literal meaning
unless to do so would lead to an absurd or wholly unreasonable
conclusion."
Crenshaw v. Weinbert, 805 S.W.2d 129,133 (Ky. 1991) (quoting Bailey v. Reeves, 662
S .W .2d 832, 834 (Ky. 1984) . The majority opinion concludes that it would be absurd
and wholly unreasonable to interpret this Act as holding a wrongdoer responsible for
his/her own wrongdoing . I conclude that it is absurd and wholly unreasonable not to do
so.
[O]ne can increase the likelihood of individual deterrence by increasing the
scope of possible personal liability in whistleblower actions . In addition,
the law should mandate that the potential fine may not be paid by the
employing governmental body but must be paid by the individual
responsible .
Valerie P. Kirk & Ann Clarke Snell, The Texas Whistleblower Act: Time for a Change ,
26 Tex. Tech L. Rev. 75, 94-95 (1995). Cf. Degener v. Hall Contracting Corp . , 27
S .W.3d 775, 781-82 (Ky. 2000) (recognizing employer's right of indemnity against
employee for damages payable to third party because of employee's violation of
Kentucky Civil Rights Act) . Our statutory scheme, unlike Texas's, accomplishes both of
those goals.
The majority opinion primarily relies on cases interpreting the definitions of
"employer" in Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with
Disabilities Act ("ADA"), and the Age Discrimination in Employment Act ("ADEA") . Title
VII defines employer as "a person . . . who has fifteen or more employees . . . and any
agent of such a person ." 42 U .S.C. § 2000e(b) . The ADA defines employer as "a
person . . . who has 15 or more employees . . . and any agent of such person ." 42
U.S .C . § 12111(5)(A) . The ADEA defines employer as "a person . . . who has twenty or
more employees" including "any agent of such a person ." 29 U.S .C . § 630(b) . As
stated in the majority opinion, most courts that have construed these statutes have
construed the "any agent" language as creating only vicarious liability, i .e . , agency
liability, in the employers but not individual liability in the agent . E Wathen v. Gen .
.,
.g
Elec . Co. , 115 F .3d 400, 405 (6th Cir. 1997) (Title VII); Tomka v. Seiler Corp. , 66 F .3d
1295, 1313-17 (2d Cir. 1995) (Title VII); U.S . E.E.O.C. v. AIC Sec. Investigations, Ltd . ,
55 F.3d 1276, 1281-82 (7th Cir. 1995) (ADA) ; Birkbeck v. Marvel Lighting Corp . , 30 F .3d
507, 510-11 (4th Cir. 1994) (ADEA) ; Miller v. Maxwell's Int'I Inc . , 991 F.2d 583, 587-88
(9th Cir. 1993) (Title VII) .
Obviously, the phrase "any agent" is substantially broader in scope than "any
person authorized to act . . . with respect to formulation of policy or the supervision, in a
managerial capacity, of subordinate employees ." KRS 61 .101(2) . In addition to
emphasizing the "any agent" phrase, the courts interpreting Title VII, the ADA, and the
ADEA, have emphasized the fact that the statutes limit liability to employers with a
specified minimum number of employees "in part because Congress did not want to
burden small entities with the costs associated with litigating discrimination claims,"
Miller , 991 F.2d at 587 ; and it is "'inconceivable' that a Congress concerned with
protecting small employers would simultaneously allow civil liability to run against
individual employees ." Tomka , 66 F.3d at 1314 . Additionally, the legislative history
indicates that in the floor debates over Title VII, no mention was made of agent liability,
further "implying that Congress did not contemplate agent liability under Title VII ." Id.
Finally, before Congress enacted the Civil Rights Act of 1991, 42 U.S .C. § 1981 a, the
remedies for a successful Title VIl claim were limited to reinstatement and back pay remedies available only from an employer. Id. The Civil Rights Act of 1991 added
compensatory and punitive damages for intentional discrimination under Title VII,
remedies available from individuals as well . However, Congress calibrated the amounts
of damages recoverable to the size of the employer, beginning with employers having at
least fifteen employees . 42 U .S .C. § 1981 a(b)(3) . "[I]f Congress had envisioned
individual liability . . . it would have included individuals in this litany of limitations and
.
would have discontinued the exemption for small employers Miller , 991 F.2d at
588 n .2 .
In Wathen v. General Electric Co. , the United States Court of Appeals for the
Sixth Circuit noted that Kentucky courts look to the federal counterpart when construing
the Kentucky Civil Rights Act, 115 F.3d at 403 n.5, thus construed KRS 344.030(2) the
same as it construed Title VII, i .e. , as creating no individual liability. Id. at 405. Similar
to Title VII, the ADA, and the ADEA, KRS 344 .030(2) defines "employer" as "a person
who has eight (8) or more employees . . . and an agent of such a person . . . ."
However, none of the considerations applicable to Title VII, the ADA, the ADEA, and
KRS 344.030(2) apply to the statutory scheme of the Whistleblower Act. The word
"agent" does not appear in KRS 61 .101(2), which limits individual liability to policymaking, supervisory, and managerial employees - those in a position to retaliate
against a whistleblower . Nor is the Whistleblower Act limited to employers with a
specified minimum number of employees . There is no "calibration" of the amount of
damages according to the number of employees . Although only an employer can
reinstate a "whistleblower," an individual obviously can pay punitive damages . Finally,
there is no legislative history indicating a legislative intent that the Act means something
other than what it clearly says.
Significantly, since deciding Wathen , the Sixth Circuit has held that KRS
344.280, the statute creating a cause of action for retaliation under the Kentucky Civil
Rights Act, does create individual liability for supervisors and other employees . Morris
v. Oldham County Fiscal Court , 201 F.3d 784, 793-94 (6th Cir. 2000). That statute
provides that "[i]t shall be an unlawful practice for a person . . . [t]o retaliate or
discriminate in any manner against a person because he has opposed a practice
declared unlawful by this chapter . . . ." (Emphasis added.) Like KRS 344.280, the
Whistleblower Act protects employees against retaliation for lawful conduct. The only
difference between KRS 344.280 and KRS 61 .101(2) is that the former refers to a
"person" and the latter refers to a "person" who is a policy-maker, supervisor, or
manager .
The other authorities cited in the majority opinion are also easily distinguished .
Obst v. Microton, Inc. , 588 N .W.2d 550 (Minn . Ct. App. 1999), affd, 614 N .W.2d 196
(Minn. 2000), construed a statute, Minn . Stat. § 181 .931, subd . 3, that defined
"employer" as "any person having one or more employees in Minnesota and includes
the state and any political subdivision of the state," and contained no reference to either
agents or persons acting on behalf of the employer . 588 N .W .2d at 553-54 . Reno v.
Baird , 957 P.2d 1333 (Cal. 1998), construed a statute, Cal . Govt. Code § 12926, subd.
(d), that, similar to Title VII, the ADA, and the ADEA, defined an "employer" as "any
person regularly employing five or more persons, or any person acting as an agent of
an employer, directly or indirectly . . . . .. 957 P.2d at 1335 . United States ex rel. Lamar
v . Burke , 894 F.Supp. 1345 (E.D . Mo . 1995), construed 31 U .S .C . §§ 3729-3733, the
False Claims Act, which contains no definition of "employer." "The statute in this case
does not define 'employer .' Therefore, this Court should construe 'employer' in accord
with its ordinary and natural meaning ." Id. at 1347. The court proceeded to consult
various dictionaries . Alejandro v. Robstown Independent School District , 131 S.W.3d
663 (Tex . Ct. App. 2004), construed a statute, Tex. Gov't Code Ann. § 554.008(e), that
specifically limited a supervisor's liability to a civil penalty not to exceed $15,000.00,
payable to the state treasury . 131 S .W.3d at 668-69 .
Abbamont v . Piscataway Township Board of Education , 650 A.2d 958 (N.J .
1994), construed New Jersey's whistleblower act, the Conscientious Employee
Protection Act (CEPA), which defined "employer" as "any individual, partnership,
association, corporation or any person or group of persons actin directly or indirectly
on behalf of or in the interest of an employer with the employer's consent . . . ... N .J.
Stat. Ann. 34:19-2(a) (emphasis added) . However, the whistleblower in Abbamont did
not sue his supervisor and the court did not address whether a supervisor could be held
individually liable under the definition of "employer." It only decided that the Board of
Education was vicariously liable for the retaliatory actions taken by the supervisor . Id. at
965-66 . In Palladino ex rel . United States v. VNA of Southern New Jersey, Inc. 68
F .Supp.2d 455 (D .N .J .,1999), a federal district court construing that same statute held
that it created individual liability for supervisory employees acting with the authorization
of the employer. Id. at 474 . Similarly, in Alaska Housing Finance Corp . v. Salvucci , 950
P .2d 1116 (Alaska 1997), the Supreme Court of Alaska interpreted the following
whistleblower statute as authorizing actions against individuals as well as employers :
Sec. 39 .90.120 Relief and penalties .
(a) A person who alleges a violation of AS 39.90.100 may bring a civil
action and the court may grant appropriate relief, including punitive
damages .
(b) A person who violates or attempts to violate AS 39.90.100 is also
liable for a civil fine of not more than $10,000. The attorney general may
enforce this subsection.
(c) A person who attempts to prevent another person from making a
report or participating in a matter under AS 39.90 .100(a) with intent to
impede or prevent a public inquiry on the matter is liable for a civil fine of
not more than $10,000.
Alaska Stat . § 39 .90.120. The statutory scheme did not define "person" and did not
define "employer" as including a person. Id. § 39.90 .140(2) . The court reasoned as
follows :
Subsection .120(a) authorizes a person who alleges a violation of section
.100 to bring a civil action, and it authorizes the court in which the action is
brought to "grant appropriate relief, including punitive damages."
Subsection (a) does not, however, specify the defendants against whom
the civil action may be brought. It is logical to suppose that any person or
entity which is capable of violating or attempting to violate section .100
may be a defendant under subsection (a) of section .120. Subsection
.120(b) recognizes that individuals - that is, individual government
employees - are capable of violating or attempting to violate section .100.
[FN9] It follows that the defendants who may be sued under subsection
.120(a) include individuals as well as public employers. Further, this
conclusion is implied by the text of subsection .120(b), which states that "a
person who violates . . . [section .100] is also liable for a civil fine . . . ."
The word "also" implies that the person described is also liable under
subsection .120(a) .
FN9. To conclude otherwise, one would have to read subsection
(b) as authorizing the attorney general of the state to sue the state
for a civil fine which would be paid by the state to the state. Such a
reading would be an absurdity.
Salvucci , 950 P.2d at 1124-25.
Our Whistleblower Act is much more explicit with respect to individual liability
than is either the New Jersey statute construed in Palladino or the Alaska statute
construed in Salvucci. I would give our Act the same liberal construction required of all
remedial statutes "in favor of the remedy provided by law, or in favor of those entitled to
the benefits of the statute," Ky. Ins . Guar. Ass'n , 13 S.W.3d at 611, and hold that the Act
means what it says - policy-making, supervisory, and managerial employees who
violate its provisions are subject to civil actions for punitive damages. Accordingly, 1
respectfully dissent.
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