ERWIN v. JUSTICE AND PUBLIC SAFETY CABINET

NOT TO BE PUBLISHED

OPINION

CETRULO, Judge.

Appellant James Lewis Erwin ("Commissioner Erwin") appeals from the Oldham Circuit Court's order granting summary judgment in favor of Appellee Justice and Public Safety Cabinet ("the Cabinet") in Commissioner Erwin's retaliation lawsuit. Finding no error, we affirm.

I. PRELIMINARY MATTER

Commissioner Erwin moved to strike the Cabinet's brief due to the inclusion of an exhibit not properly entered into the record. We deny the motion to strike, but have not considered the exhibit in question, Exhibit 10, in our analysis.

II. BACKGROUND

In 2007, Commissioner Erwin was hired as the Director of Operations of the Department of Corrections ("DOC"), the largest of the five departments within the Cabinet. In May 2017, Commissioner Erwin was appointed acting commissioner of the DOC; and, in May 2018, Commissioner Erwin was officially appointed to the position by Secretary of the Cabinet, John Tilley ("Secretary Tilley").

In August 2017, while Commissioner Erwin was the Acting Commissioner of the DOC, he learned that Andrew English, General Counsel for the Cabinet ("GC English"), was having Kentucky Correctional Industries ("KCI") employees deliver and install cabinetry to his personal residence. Commissioner Erwin addressed the matter with GC English directly and reported the possible waste and/or abuse of authority to the Deputy Secretary of the Cabinet, Jonathan Grate ("Deputy Grate").1 Thereafter, a meeting took place with Commissioner Erwin, Secretary Tilley, and Deputy Grate, among others. Secretary Tilley ordered an investigation2 which found that the Executive Director of KCI3 violated policy by allowing deliveries to be made to personal residences and continued this practice after Commissioner Erwin explicitly told him to stop. According to the Cabinet, the investigation found that GC English was unaware that his actions — of purchasing the cabinetry and thereafter getting it delivered and installed — were a violation of state policy. Commissioner Erwin claims that GC English "was not punished in any way" except to be "counsel[ed]" by Secretary Tilley. Commissioner Erwin argues that due to this KCI disclosure, GC English exhibited continued antagonism towards him. Commissioner Erwin points to a contentious meeting approximately one year after the KCI investigation as an example of the continued animosity between himself and GC English.

In November and December 2018, the Internal Investigations Branch of the Cabinet ("IIB") investigated claims of sexual harassment at the DOC.4 This particular investigation was a result of a complaint by one woman of sexual harassment allegedly perpetrated by two African American corrections officers ("DOC officers").5 After the investigation was complete, Commissioner Erwin asserted that the IIB investigation was deficient6 and stated that he "could not justify any disciplinary actions" of the two DOC officers accused of sexual harassment.

Subsequently, the Cabinet stated that

(Footnotes omitted.)

At this January 14 meeting, Commissioner Erwin argues that he brought forth his second protected disclosure7 under the Kentucky Whistleblower Act ("KWA"), and this meeting is also the root of the alleged Kentucky Civil Rights Act ("KCRA") violation. At this meeting, the exchanges between GC English and Commissioner Erwin were "contentious." Commissioner Erwin argues that he was told not to document his concerns regarding the IIB investigations, and that GC English advised him — on the direction of Secretary Tilley — to fire the DOC officers.8 The Cabinet disputes this contention, and points to deposition testimony from other attendees that Commissioner Erwin was not instructed to fire the officers. The Cabinet argues that the meeting "was scheduled to obtain [Commissioner] Erwin's recommendation regarding discipline, and all types of discipline were discussed." (Footnotes omitted.)

A subsequent meeting was held on January 28, 2019 with Commissioner Erwin, Secretary Tilley, and Deputy Grate. According to Commissioner Erwin, at that meeting he again raised his complaint regarding the alleged inadequate IIB investigation and his concerns involving racial issues. Again, Commissioner Erwin argues that he was told to fire the DOC officers. And again, the Cabinet argues that "[Secretary Tilley] did not order [Commissioner] Erwin to fire them." The Cabinet points to a January 31 email from Brad Holajter9 to Commissioner Erwin requesting the Commissioner's recommendation on disciplinary action for the DOC officers.

Subsequently, Commissioner Erwin met with GC English's replacement, Tom Kerr ("GC Kerr").10 According to Commissioner Erwin, GC Kerr agreed with him about the investigation deficiencies and expressed those concerns to Deputy Grate. Commissioner Erwin "had hoped that [GC] Kerr could get the Cabinet to hold off on any discipline of [the DCO officers] until a more thorough IIB investigation could be completed. [Commissioner] Erwin said that if [GC] Kerr was unable to do so, then [Commissioner] Erwin would go to the Attorney General or the Governor's office." Four days later, on February 8, Commissioner Erwin received a letter of termination signed by Secretary Tilley. The letter stated that Commissioner Erwin was being terminated without cause.11

Commissioner Erwin contends he was fired in violation of (1) the KWA (KRS 61.102 and 61.103) following his two disclosures of suspected mismanagement, waste, and/or abuse of authority, and (2) the KCRA (KRS Chapter 344 et seq.) by firing him "without cause"12 after Commissioner Erwin opposed the termination of two African American DOC employees.

Less than two weeks after his termination, Erwin filed suit against the Cabinet. After the failure of court-ordered mediation, the matter was set for trial. Prior to that trial date, the Cabinet filed a motion for summary judgment. This motion was granted, dismissing all of Commissioner Erwin's claims. This appeal followed. Additional facts will be included below as necessary.

III. STANDARD OF REVIEW

Summary judgment is properly granted where "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR13 56.03. Upon our review, we must consider whether the trial court correctly determined that there were no genuine issues of material fact concerning Commissioner Erwin's whistleblower and civil rights claims and properly concluded that the Cabinet was entitled to judgment as a matter of law. See Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996).

Kearney v. University of Kentucky, 638 S.W.3d 385, 397 (Ky. 2022).14

It is important to note that, under the summary judgment standard, "[a] party's subjective beliefs about the nature of the evidence [are] not the sort of affirmative proof required to avoid summary judgment." Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007) (citing Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990)). "The party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment." Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001) (citing Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226 (Ky. 1984)). Consequently, at the trial court level, the Cabinet bore the burden of establishing the apparent non-existence of a genuine issue of material fact. However, on appeal, Commissioner Erwin now bears the burden of presenting significant evidence to show that a material issue of fact exists for a jury to consider. Id.

Because summary judgment in this case involves only questions of law and not the resolution of disputed material facts, we do not defer to the trial court's decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky. 1992). Instead, we review the trial court's interpretations of law de novo. Cumberland Valley Contrs., Inc. v. Bell County Coal Corp., 238 S.W.3d 644 (Ky. 2007).

IV. ANALYSIS

Ordinarily, a Kentucky employer may discharge an at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible. Wymer, 50 S.W.3d at 198 (Ky. 2001) (citing (generally) Production Oil Co. v. Johnson, 313 S.W.2d 411 (Ky. 1958) and Scroghan v. Kraftco Corp., 551 S.W.2d 811 (Ky. App. 1977)). However, there are limitations on the at-will doctrine to protect employees from a discharge that is contrary to public policy and/or in conflict with constitutional or statutory provisions. Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985). Here, we must determine if Commissioner Erwin can prove that his rights — under the Kentucky Whistleblower Act and the Kentucky Civil Rights Act — have been violated by the Cabinet.

A. Kentucky Whistleblower Act

The KWA is an anti-retaliation statute that "serves the remedial purpose of protecting employees who possess knowledge of wrongdoing that is concealed or not publicly known and who step forward to help uncover and disclose information." N. Kentucky Area Dev. Dist. v. Wilson, 612 S.W.3d 916, 920 (Ky. 2020) (internal quotation marks and citations omitted). To set forth a claim for retaliation under the KWA, a claimant must establish the following:

Davidson v. Com., Dep't of Military Affairs, 152 S.W.3d 247, 251 (Ky. App. 2004). Additionally, a claimant must prove "by a preponderance of evidence that the disclosure was a contributing factor in the personnel action." KRS 61.103(3).

There is no question in this case that Commissioner Erwin qualifies as an "employee" and that the Cabinet is an "employer" under the statute. T herefore, to prevail on a KWA claim, Commissioner Erwin must prove that 1) he made a good faith disclosure of facts or information relative to actual or suspected mismanagement, waste, fraud and/or abuse of authority 2) to an appropriate body or authority, and 3) that the disclosure was a contributing factor in the Cabinet terminating his employment. See KRS 61.103(3). See also Kearney, 638 S.W.3d at 389-99, and Woodward v. Commonwealth, 984 S.W.2d 477, 480-81 (Ky. 1998). Here, Commissioner Erwin argues that he made two such disclosures: (a) one disclosure in 2017 about GC English and the KCI, and (b) another in 2019 regarding the IIB investigation.

i. KWA: KCI Disclosure

To begin with, the trial court determined that Commissioner Erwin's first disclosure, the 2017 KCI disclosure to Secretary Tilley and Deputy Grate qualified, under KWA, was a disclosure of waste and/or abuse of authority to the proper authority, but that the disclosure was not a "contributing factor" in his termination because of the intervening time and his promotion. To the contrary, Commissioner Erwin argues that a reasonable jury could find the KCI disclosure played a role in his termination, but he does not present significant evidence to support that contention.

In support of his argument, Commissioner Erwin points to Harper v. University of Louisville, 559 S.W.3d 796 (Ky. 2018), a Kentucky Supreme Court's decision that reversed this Court. In Harper, she (Harper) brought a wrongful termination action under KWA; a jury agreed that her job was eliminated in retaliation for her numerous complaints to the University of Louisville officials about suspected wasteful spending; she was awarded approximately $226,409 in back pay, $201,000 for mental anguish, $131,362 in attorney fees, and $1,996.19 in court costs. Id. at 800-01. This Court reversed, concluding that none of Harper's seven alleged incidents qualified as a protected disclosure under the statute. Id. at 803. The Supreme Court reinstated the jury verdict concluding, in part, that at least three of Harper's seven incidents qualified as protected disclosures under KWA. Id. The Supreme Court in Harper described the causation element in broad terms.

Harper, 559 S.W.3d at 804.

To reiterate, the disclosure must have led to his termination within a "reasonably close temporal proximity." Harper, 559 S.W.3d at 804 (citing KRS 61.103(1)(b)). In Harper, the elimination of her position was announced "immediately upon the heels of her last wasteful spending disclosure[.]"15 Id. at 804. In contrast to Harper, Commissioner Erwin's termination occurred approximately 18 months16 after his KCI disclosure.

"Because the federal and Kentucky whistleblower legislation is similar, we have routinely looked to the federal courts' interpretation of the corresponding federal whistleblower statute as persuasive authority." Id. at 802 (citations omitted). However, we do not find Commissioner Erwin's federal references — to the Merit Systems Protection Board — to be persuasive. True, each of his references found one to two years' time between the disclosure and the adverse employment action to meet the required causal connection;17 but, those cases are factually much stronger than the matter before us.

In Rumsey v. Department of Justice, 120 M.S.P.R. 259 (M.S.P.B. 2013), Rumsey alleged her employer gave her improperly low performance ratings, moved some of her job duties to other employees, canceled her telework agreement, and prohibited her from making site visits. Id. at ¶ 4. This evidence showed an alleged consistent pattern of negative treatment linking the disclosure and the adverse employment.

In Gonzalez v. Department of Transportation, 109 M.S.P.R. 250 (M.S.P.B. 2008), Gonzalez testified — in front of the Office of the Inspector General — that Lynda Holst possessed a fake identification badge; just over one year later, Holst was his supervisor at the time of his removal. Id. at ¶ 17-19. Gonzalez clearly had a strong argument of retaliation.

In Schnell v. Department of the Army, 114 M.S.P.R. 83 (M.S.P.B. 2010), Schnell wrote a Quality Assurance Surveillance Plan ("QASP") that disclosed problems with the inspection process at various federal agencies. Id. at ¶ 4. Schnell alleged that his employer had curtailed his job responsibilities, denied him a temporary promotion, and threatened to separate him in reprisal for his disclosures. Id. at ¶ 5. Once again, a more consistent pattern of alleged adverse treatment, i.e. a stronger factual argument, than the one presented by Commissioner Erwin.

Here, we do not find 18 months to be such "a limited period of time[,]" without any other events, words, or actions linking the disclosure with the termination. Commissioner Erwin alleged that after the KCI disclosure, he had a contentious relationship with GC English, but he points to only one meeting, almost 17 months later, where that hostility manifested. Besides that contentious relationship, Commissioner Erwin did not present any evidence that his responsibilities or authority were negatively affected. He did not present any evidence of resulting discipline or specific examples of hostility from Secretary Tilley or Deputy Grate. He was not demoted or reprimanded in the months following the disclosure. In fact, he was promoted from Acting Commissioner to Commissioner during that time.

As to the timing of the termination — specifically as it relates to GC English — we agree with the trial court's summary.

Further, although Commissioner Erwin is correct that an employer must establish — by clear and convincing evidence — that the disclosure was not a material fact in the personnel action, that shift of burden only comes into play after an employee presents evidence that the disclosure was a contributing factor in the personnel action against him. Davidson, 152 S.W.3d at 251 (internal quotation marks and citations omitted) ("The employee must show by a preponderance of evidence that the disclosure was a contributing factor in the personnel action. The burden of proof is then on the state employer to prove by clear and convincing evidence that the disclosure was not a material fact in the personnel action."). Here, no shift of burden is appropriate because Commissioner Erwin did not submit the required evidence to show that the KCI disclosure was a contributing factor in his termination. Therefore, the KCI disclosure cannot sustain Commissioner Erwin's KWA claim.

ii. KWA: IIB Disclosure

Next, Commissioner Erwin argues that his second disclosure about the insufficiency of the IIB investigation is protected under KWA. Commissioner Erwin's IIB disclosure argument has evolved through the course of this legal proceeding, and despite preservation concerns, we acknowledge both versions of his argument. At the trial level, Commissioner Erwin addressed the matter as if Secretary Tilley was the "wrongdoer," but on appeal he claims the "wrongdoers" were the IIB investigators. As will become apparent, we need not concern ourselves with this discrepancy.

In his original complaint, filed February 21, 2019, Commissioner Erwin states, in part,

The trial court understood — from that complaint and more than two years' litigation — that the "wrongdoers" were the Cabinet leadership, specifically Secretary Tilley. The trial court found that Commissioner Erwin's alleged IIB disclosures did not constitute a disclosure under KWA because 1) the statements are not of the kind protected, i.e. they did not relay information violative of state law or regulation, nor information objectively viewed as waste or fraud, and 2) the statements were made to the wrongdoer about the wrongdoer's own conduct, which is not protected under KWA. The trial court determined:

We see no reason to disagree with the trial court's reasoning or conclusions, but we must address one aspect: the nature of the information protected under KWA. "[T]he nature of the information disclosed cannot simply be an expression of a policy disagreement based upon the whistleblower's subjective opinion; it must objectively meet the criteria for the kinds of misconduct described in the KWA, such as actual or suspected conduct that violates a law or administrative regulation or conduct that objectively viewed constitutes waste or fraud." Harper, 559 S.W.3d at 803 (citing Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)) ("[T]he proper test is this: could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidence gross mismanagement? A purely subjective perspective of an employee is not sufficient even if shared by other employees."). This objective standard referenced in Harper is consistent with the text of KRS 61.102(1): "No employer shall subject to reprisal . . . any employee who in good faith reports . . . any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority."

Kearney, 638 S.W.3d at 405.

Here, unlike in Harper, Commissioner Erwin relayed no objective fact or information supporting the suggestion of misconduct by stating that the IIB investigation and memos of concern were "deficient." Stated differently, Commissioner Erwin did not identify or report certain Cabinet actions upon which it was clear he was blowing the whistle; this applies regardless of whom Commissioner Erwin perceives as the "wrongdoer," Secretary Tilley or the IIB investigators. To say the IIB investigators did a poor job on the investigation is not an accusation of mismanagement, waste, fraud, or abuse of authority. To say Secretary Tilley erred by disagreeing with Commissioner Erwin as to whether the IIB investigation was sufficient to fire the DOC employees is not an accusation of mismanagement, waste, fraud, or abuse of authority. No matter who wears the crown of "wrongdoer," Commissioner Erwin's 2019 IIB disclosure was not of the nature protected by the KWA. Therefore, Commissioner Erwin's IIB allegations are not protected disclosures under KRS 61.102.

B. Kentucky Civil Rights Act

The trial court found that Commissioner Erwin did not present sufficient evidence of the Cabinet's intent to discriminate, nor did Commissioner Erwin show proof that he was terminated in violation of KCRA. On appeal, Commissioner Erwin argues that the trial court did not view the facts in a light most favorable to him. He argues that he has a "straightforward claim of retaliation." Commissioner Erwin contends that several individuals at the Cabinet, and the Cabinet as a whole, conspired to terminate his employment for opposing the possible DOC officers' terminations.

The KRCA makes it unlawful for a person, or two or more people, to conspire:

KRS 344.280. A prima facie retaliation case under KRS 344.280 requires the plaintiff to have engaged in a "protected activity" and to show a causal nexus between the activity and the employer's adverse employment action. Louisville & Jefferson Cty. Metro. Sewer Dist. v. Hill, 607 S.W.3d 549, 557 (Ky. 2020) (citing Charalambakis v. Asbury Univ., 488 S.W.3d 568, 583 (Ky. 2016)). Here, the record reflects that Commissioner Erwin failed to meet this burden of production.

Commissioner Erwin contends he voiced his racial concerns to the Cabinet Executive Staff during meetings on January 14, January 28, and February 4, 2019. However, from the record, it appears that Commissioner Erwin merely pointed out the racial discrepancy — the investigator was white and the DOC officers were African American — but did not argue that a racial bias existed. During his deposition testimony, Commissioner Erwin stated that he "had concerns taking that action [of firing the DOC officers] against minority employees because of the different avenues of redress that they would have." Referring to a meeting with Cabinet members, be quoted himself as saying:

The record does not reflect that he put the Cabinet on notice that he believed the firing recommendations were because of race. He did not make a complaint concerning race to the Cabinet; he did not complain to any specific Cabinet member stating his belief that the firings were racially motivated; nor did he offer any evidence that the Cabinet was aware that he had concerns about the IIB investigator's possible racial bias.19 In fact, he did not make mention of the KCRA violation until his amended complaint, almost a year after he filed his original complaint. Because Commissioner Erwin was unable to show that he engaged in a protected activity and was unable to make a prima facie case of retaliation, the trial court properly granted summary judgment to the Cabinet on this claim.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the Oldham Circuit Court as to the dismissal of Commissioner Erwin's KWA and KCRA claims. As a result, there is no need to address the issue of emotional distress damages.

ALL CONCUR.