Benningfield v. Pettit Environmental, Inc.

183 S.W.3d 567, 2005 Ky. App. LEXIS 201, 2005 WL 2240967

• Court: Court of Appeals of Kentucky
• Decided: September 16, 2005
• Docket: 2004-CA-001632-MR
• Status: Published

Opinions

OPINION

BARBER, Judge.

Appellant, Danny D. Benningfield (Ben-ningfield), appeals from an order issued by Jefferson Circuit Court which granted a motion to dismiss Benningfield’s wrongful discharge claim and granted summary judgment on Benningfield’s intentional infliction of emotional distress (IIED) claim in favor of the Appellee, Pettit Environmental, Inc., (Pettit). We affirm.

In March of 2000, Benningfield was hired by Pettit as an Environmental Technician. As a condition of his employment Benningfield was required to complete certain certifications. These certifications required Benningfield to complete training courses. In a letter dated July 25, 2002, Benningfield informed Pettit that he did not believe that he had received the training for which he was credited. Because Benningfield believed that Pettit was not providing proper training, he notified the Occupational Safety and Health Administration (OSHA) about his concerns. OSHA consequently performed an on-site inspection. Subsequently, in December 2002 Benningfield and two other Environmental Technicians were laid off. Pettit’s General Manager, Rich Zachgo, informed Benningfield that he and the two other Environmental Technicians were chosen for the lay-off because they did not hold commercial driver’s licenses (CDL).

Benningfield later filed an administrative discrimination charge based upon KRS 338.121 with the Kentucky Labor Cabinet. That charge was investigated and dismissed. Benningfield then filed suit in Jefferson Circuit Court alleging wrongful discharge and IIED. In an order dated July 16, 2004, the trial court granted Pettit’s motion to dismiss the wrongful discharge claim, and also granted summary judgment in favor of Pettit on Ben-ningfield’s IIED claim. This appeal followed.

First, we consider whether the trial court’s granting of Pettit’s motion to dismiss Benningfield’s wrongful discharge claim was proper. A motion to dismiss should only be granted if “it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim.” Pari-Mutuel Clerks’ Union v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky.1977). When ruling on the motion, the allegations in “the pleadings should be liberally construed in a light most favorable to the plaintiff and all allegations taken in the complaint to be true.” Gall v. Scroggy, 725 S.W.2d 867, 868 (Ky.App.1987). In making this decision, the trial court is not required to make any factual findings. James v. Wilson, 95 S.W.3d 875, 884 (Ky.App.2002). Therefore, “the question is purely a matter of law.” Id. Accordingly, the trial court’s decision will be reviewed de novo. Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky.2000).

Employment relations in Kentucky are generally terminable at will. Firestone Textile Co. v. Meadows, 666 S.W.2d 730 (Ky.1984). As such, “[a]n employer may discharge his at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible.” Id. at 731. However, “[a]n employee has a cause of action for wrongful discharge when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law....” Id. (quoting Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834, 840 (1983)). Thus, an employee may file a wrongful discharge claim if he or she was terminated in violation of a well-defined public policy. But, this exception only applies when the statute creating the public policy exception does not provide a structure for pursuing a claim. Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky.1985).

In the present case Benningfield asserts that he was terminated in violation of the well-defined public policy in KRS 338.121, which states in pertinent part:

(3)(a) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter; and

(b) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within a reasonable time after such violation occurs, file a complaint with the commissioner alleging such discrimination. Upon receipt of such complaint, the commissioner shall cause such investigation to be made as deemed appropriate. If upon such investigation, the commissioner determines that the provisions of this subsection have been violated, he shall issue a citation to the employer which may be challenged or contested in accordance with the provisions of this chapter and the review commission may order all appropriate relief including rehiring and reinstatement of the employee to his former position with back pay. Upon an initial determination by the commissioner that an employee has been discharged by an employer in violation of subsection (3)(a) of this section, the secretary may order reinstatement of the employee pending a final determination and order of the review commission.

Pettit argues that this statute both defines the wrongful act and specifies the civil remedy available and as such preempts Benningfield’s wrongful discharge claim. In support of this position Pettit cites Hines v. Elf Atochem North America, Inc., 813 F.Supp. 550 (W.D.Ky.1993), aff'd, 47 F.3d 1169 (6th Cir.1995) which applied the holding in Grzyb to KRS 338.121. Benningfield responds by stating that we are not bound by this decision, as Hines was a federal case, and that the Court in Hines did not engage in “any substantive analysis” as to whether KRS 338.121 preempts wrongful discharge claims brought under it. While it is true that we are not bound by the decision in Hines, we deem that authority to be persuasive. When KRS 338.121 is read, it is clear that it forbids the firing of an employee for filing a complaint with OSHA. Also, it specifies that any employee “who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may ... file a complaint with the commissioner alleging such discrimination.” Therefore, we find that KRS 338.121 provides both the public policy exception and provides the remedy for its violation.

Next, Benningfield argues that the statute in Grzyb is “significantly different” than the statute at issue here and therefore, the holding in Grzyb does not apply to this case. However, the Court in Grzyb did not limit its decision to KRS 344.270, which was the statute at issue in that case, or to statutes similar in nature to KRS 344.270. In fact, that Court stated that “[w]here the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute.” Grzyb v. Evans, supra, at 401. Thus, the holding clearly applies to all statutes that specify the unlawful act and provide the remedy available to aggrieved parties, not just to KRS 334.370.

Also, Benningfield asserts that because KRS 338.121 states that an employee “may” file a complaint with the commissioner, it merely gives a possible course of action and is therefore not an exclusive remedy. However, Grzyb does not require the statute to specify that the remedy provided is exclusive. Grzyb only requires that the statute “speciffy] the civil remedy available,” Id. and KRS 338.121 specifies the remedy available by directing an aggrieved employee that he or she may file a complaint with the commissioner.

In keeping with the holding in Grzyb, we hold that the Benningfield’s wrongful discharge claim, under KRS 338.121, is preempted because the statute provides both the unlawful act and specifies the civil remedy available to aggrieved parties.

Now, we turn to Benningfield’s IIED claim. We must determine whether the trial court properly granted summary judgment in favor of Pettit on the IIED claim. “The ... purpose of ... summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Roberson v. Lampton, 516 S.W.2d 838, 840 (Ky.App.1974). Summary judgment should only be granted “where the movant shows that the adverse party could not prevail under any circumstances.” Paintsville Hospital Company v. Rose, 683 S.W.2d 255, 256 (Ky.1985). “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). In making this determination, “[t]he record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). Since factual findings are not at issue, Scifres v. Kraft, supra at 781, the decision shall be reviewed de novo. Revenue Cabinet v. Hubbard, supra at 719.

Kentucky has long recognized the tort of intentional infliction of emotional distress (IIED). See Craft v. Rice, 671 S.W.2d 247 (Ky.1984). In Kentucky, a party can recover under IIED if it is shown that: (1) the wrongdoer’s conduct was intentional or reckless, (2) the wrongdoer’s conduct was outrageous and intolerable, (3) there is a causal connection between the conduct and the emotional distress, and (4) the emotional distress suffered is severe. Wilson v. Lowe’s Home Center, 75 S.W.3d 229, 238 (Ky.App.2001).

Benningfield contends that all four elements are met and that he produced sufficient evidence of such to survive summary judgment. Pettit counters by stating that summary judgment was proper because there was no “extreme and outrageous” conduct and that Benningfield did not suffer “severe emotional distress.” Since Pettit only raises issues regarding two of the elements of IIED, we will limit our analysis to those elements.

First, in order for conduct to be considered “extreme and outrageous” it must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency....” Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky.1990). In the present case, Benning-field only alleges his termination as grounds for his IIED claim. Mere termination clearly does not rise to the level of outrageous conduct required to support an IIED claim. Other jurisdictions which follow the Restatement (Second) of Torts § 46, as Kentucky does, have held that termination does not rise to the level of outrageous conduct required for an IIED claim. Craft v. Rice, supra at 251. In fact, the Sixth Circuit, applying Ohio law, held that “an employee’s termination, even if based upon discrimination, does not rise to the level of ‘extreme and outrageous conduct’.” Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir.1999). Therefore, Pettit’s act of terminating Benningfield does not rise to the level of “extreme and outrageous” conduct that is required to sustain an IIED claim.

Second, to meet the standard of severe emotional distress the injured party must suffer distress that is “substantially more than mere sorrow.” Gilbert v. Barkes, 987 S.W.2d 772, 777 (Ky.1999). In the present case, Benningfield alleges that the embarrassment he suffered as a result of losing his job satisfies this element. However, mere embarrassment does not rise to the level required to meet the “substantially more than mere sorrow” standard, as set out in Gilbert. Thus, the “severe emotional distress” element has not been met.

Because Benningfield has failed to show that Pettit engaged in “extreme or. outrageous” conduct or that he suffered “severe emotional distress,” we hold that Benning-field’s IIED claim cannot be maintained. As such, the granting of summary judgment was proper.

Also, Benningfield asserts that summary judgment was not proper because he had not completed discovery at the time the judgment was entered. When reviewing a motion for summary judgment “[t]he inquiry should be whether, from the evidence of record, facts exist which would make it possible for the non-moving party to prevail. In the analysis, the focus should be on what is of record rather than what might be presented at trial.” Welch v. American Publishing Co. of Kentucky, 3 S.W.3d 724, 730 (Ky.1999). “When the moving party has presented evidence showing that despite the allegations of the pleadings there is no genuine issue of any material fact, it becomes incumbent upon the adverse party to counter that evidentiary showing by some form of evidentiary material reflecting that there is a genuine issue pertaining to a material fact.” Neal v. Welker, Ky., 426 S.W.2d 476, 479 (1968). However, “[t]he hope or bare belief ... that something will ‘turn up,’ cannot be made basis for showing that a genuine issue as to a material fact exists.” Id. at 479-80. In the present case, Benningfleld has not alleged anything that would support his IIED claim, and the hope that something will come to light in additional discovery is not enough to create a genuine issue of material fact. Therefore, the timing of summary judgment was also proper.

For the foregoing reasons, the findings of the Jefferson Circuit Court are affirmed.

MILLER, Senior Judge, Concurs.

JOHNSON, Judge, Concurs in Part, Dissents in Part, and Files Separate Opinion.