RENDERED: MAY 3, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0697-MR
MARANDA HANSON APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT v. HONORABLE WILLIAM ANTHONY KITCHEN, SPECIAL JUDGE ACTION NO. 20-CI-00106
MARSHALL COUNTY KENTUCKY; KEVIN NEAL, IN HIS OFFICIAL CAPACITY AS MARSHALL COUNTY JUDGE EXECUTIVE; AND MARSHALL COUNTY FISCAL COURT APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND LAMBERT, JUDGES.
THOMPSON, CHIEF JUDGE: Maranda Hanson (“Appellant”) appeals from an
order of the Marshall Circuit Court granting summary judgment in favor of
Marshall County, Kentucky, Kevin Neal, in his official capacity as Marshall County Judge Executive, and Marshall County Fiscal Court (“Appellees”).
Appellant argues that the circuit court erred in failing to apply the correct standard
to Appellees’ motion for summary judgment. She also asserts that she provided
adequate evidence to support her claim of wrongful discharge per Kentucky
Revised Statutes (“KRS”) Chapter 39A, and proved entitlement to damages for
negligence per se under KRS 446.070. After careful review, we find no error and
affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
Appellant was employed by Marshall County, Kentucky as a 911
dispatcher. In December, 2019, Appellant’s supervisor, John Townsend, spoke
with Appellant about what he characterized as insubordination for sending an
inappropriate text message related to 911 training. About four months later, and
just as the COVID-19 pandemic was spreading, Appellant sent an email to 911
Director Christopher Freeman regarding Freeman’s management of the dispatch
center in light of the pandemic. The email, which is contained in the record,
questioned the adequacy of Freeman’s communication to 911 employees, and
accused Freeman of dishonesty and of being untrustworthy. According to
Appellant, she was upset that Freeman had not informed her of the reason for
Townsend’s recent absence from work, believing Townsend’s absence was due to
his exposure to COVID-19 outside the workplace.
-2- Freeman would later state that he did not inform Appellant or other
911 employees why Townsend was absent from work because Freeman believed
such a disclosure would violate the Health Insurance Portability and
Accountability Act of 1996, as well as Marshall County Administrative Code §
5.49. It was subsequently determined that Townsend was not infected with the
COVID-19 virus.
Freeman learned that Appellant was complaining to co-workers about
her grievances and was trying to coordinate a walk-out. He discussed the matter
with Marshall County Judge Executive Kevin Neal, and then arranged to meet with
Appellant to discuss her email. Freeman would later state that at the meeting to
discuss the email on March 23, 2020, Appellant was confrontational and agitated.
After explaining the situation to Appellant, Freeman suspended Appellant for three
days based on her insubordinate conduct. Appellant immediately resigned her
employment with Marshall County 911 dispatch, agreeing to work 2 more weeks
before leaving. The three-day suspension was to take effect immediately, with
Appellant then working for the remainder of the two-week period.
Appellant told other 911 employees that she had resigned and she
cleaned out her locker. She did not appeal her suspension as provided for in the
county’s policy manual, and did not report back to work after the service of her
suspension. Instead, Appellant engaged legal counsel, who emailed Freeman
-3- stating that Appellant was withdrawing her resignation, and would be quarantining
based on her belief that she had been exposed to COVID-19 in the workplace.
Marshall County government, through counsel, responded to
Appellant’s counsel stating that Appellant had resigned, and that the resignation
had been accepted and could not be withdrawn. Marshall County then paid
Appellant for her accrued vacation time and sick time, and she was removed from
the 911 dispatch schedule.
Thereafter, Appellant filed the instant action in Marshall Circuit Court
setting forth the following claims: wrongful discharge (KRS 338.010 et seq. and
KRS 39A.010); negligence per se (KRS 446.070); and retaliation (KRS 338.121
and KRS 61.102(1)). Appellant withdrew her claims of wrongful discharge in
violation of KRS 338.010 et seq., and retaliation in violation of KRS 338.121.
Thereafter, Neal was dismissed in his individual capacity and Appellees filed a
motion for summary judgment.
In support of the motion, Appellees argued that Appellant was not
fired from her employment; that even if she were fired, she was an at-will
employee whose employment could be terminated for any reason or no reason at
all per KRS 338.010, et seq.; that Appellees had not violated any statewide
emergency management rules governing 911 employees; that Appellees had not
violated any provisions of the Kentucky Occupational Safety and Health Act; that
-4- Appellant had no private right of action and was not a whistleblower; that she
failed to exhaust her administrative remedies; and that the claims against Fiscal
Court and Judge Executive Neal were redundant to the claims of Marshall County.
On June 9, 2023, the Marshall Circuit Court rendered an order
granting Appellees’ motion for summary judgment. The order centered on the
court’s finding that Appellant quit her employment and was not fired, that her
resignation was accepted, and that Appellant was not entitled to rescind her
resignation. The court determined that Appellant failed to present any evidence
that her working conditions were so intolerable that she was compelled to resign.
Based on its findings that Appellant quit her employment, and that she was an at-
will employee who could have been fired for good cause or no cause at all, the
circuit court concluded that Appellant could not prove wrongful discharge if the
matter proceeded to trial. The court also determined that Appellant’s statewide
emergency management claim (KRS Chapter 39A), negligence per se claim (KRS
446.070), and retaliation claim (KRS 338.121) were unsupported by the record.
Based on the foregoing, the Marshall Circuit Court concluded that
even when the record was considered in a light most favorable to Appellant with
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RENDERED: MAY 3, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0697-MR
MARANDA HANSON APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT v. HONORABLE WILLIAM ANTHONY KITCHEN, SPECIAL JUDGE ACTION NO. 20-CI-00106
MARSHALL COUNTY KENTUCKY; KEVIN NEAL, IN HIS OFFICIAL CAPACITY AS MARSHALL COUNTY JUDGE EXECUTIVE; AND MARSHALL COUNTY FISCAL COURT APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND LAMBERT, JUDGES.
THOMPSON, CHIEF JUDGE: Maranda Hanson (“Appellant”) appeals from an
order of the Marshall Circuit Court granting summary judgment in favor of
Marshall County, Kentucky, Kevin Neal, in his official capacity as Marshall County Judge Executive, and Marshall County Fiscal Court (“Appellees”).
Appellant argues that the circuit court erred in failing to apply the correct standard
to Appellees’ motion for summary judgment. She also asserts that she provided
adequate evidence to support her claim of wrongful discharge per Kentucky
Revised Statutes (“KRS”) Chapter 39A, and proved entitlement to damages for
negligence per se under KRS 446.070. After careful review, we find no error and
affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
Appellant was employed by Marshall County, Kentucky as a 911
dispatcher. In December, 2019, Appellant’s supervisor, John Townsend, spoke
with Appellant about what he characterized as insubordination for sending an
inappropriate text message related to 911 training. About four months later, and
just as the COVID-19 pandemic was spreading, Appellant sent an email to 911
Director Christopher Freeman regarding Freeman’s management of the dispatch
center in light of the pandemic. The email, which is contained in the record,
questioned the adequacy of Freeman’s communication to 911 employees, and
accused Freeman of dishonesty and of being untrustworthy. According to
Appellant, she was upset that Freeman had not informed her of the reason for
Townsend’s recent absence from work, believing Townsend’s absence was due to
his exposure to COVID-19 outside the workplace.
-2- Freeman would later state that he did not inform Appellant or other
911 employees why Townsend was absent from work because Freeman believed
such a disclosure would violate the Health Insurance Portability and
Accountability Act of 1996, as well as Marshall County Administrative Code §
5.49. It was subsequently determined that Townsend was not infected with the
COVID-19 virus.
Freeman learned that Appellant was complaining to co-workers about
her grievances and was trying to coordinate a walk-out. He discussed the matter
with Marshall County Judge Executive Kevin Neal, and then arranged to meet with
Appellant to discuss her email. Freeman would later state that at the meeting to
discuss the email on March 23, 2020, Appellant was confrontational and agitated.
After explaining the situation to Appellant, Freeman suspended Appellant for three
days based on her insubordinate conduct. Appellant immediately resigned her
employment with Marshall County 911 dispatch, agreeing to work 2 more weeks
before leaving. The three-day suspension was to take effect immediately, with
Appellant then working for the remainder of the two-week period.
Appellant told other 911 employees that she had resigned and she
cleaned out her locker. She did not appeal her suspension as provided for in the
county’s policy manual, and did not report back to work after the service of her
suspension. Instead, Appellant engaged legal counsel, who emailed Freeman
-3- stating that Appellant was withdrawing her resignation, and would be quarantining
based on her belief that she had been exposed to COVID-19 in the workplace.
Marshall County government, through counsel, responded to
Appellant’s counsel stating that Appellant had resigned, and that the resignation
had been accepted and could not be withdrawn. Marshall County then paid
Appellant for her accrued vacation time and sick time, and she was removed from
the 911 dispatch schedule.
Thereafter, Appellant filed the instant action in Marshall Circuit Court
setting forth the following claims: wrongful discharge (KRS 338.010 et seq. and
KRS 39A.010); negligence per se (KRS 446.070); and retaliation (KRS 338.121
and KRS 61.102(1)). Appellant withdrew her claims of wrongful discharge in
violation of KRS 338.010 et seq., and retaliation in violation of KRS 338.121.
Thereafter, Neal was dismissed in his individual capacity and Appellees filed a
motion for summary judgment.
In support of the motion, Appellees argued that Appellant was not
fired from her employment; that even if she were fired, she was an at-will
employee whose employment could be terminated for any reason or no reason at
all per KRS 338.010, et seq.; that Appellees had not violated any statewide
emergency management rules governing 911 employees; that Appellees had not
violated any provisions of the Kentucky Occupational Safety and Health Act; that
-4- Appellant had no private right of action and was not a whistleblower; that she
failed to exhaust her administrative remedies; and that the claims against Fiscal
Court and Judge Executive Neal were redundant to the claims of Marshall County.
On June 9, 2023, the Marshall Circuit Court rendered an order
granting Appellees’ motion for summary judgment. The order centered on the
court’s finding that Appellant quit her employment and was not fired, that her
resignation was accepted, and that Appellant was not entitled to rescind her
resignation. The court determined that Appellant failed to present any evidence
that her working conditions were so intolerable that she was compelled to resign.
Based on its findings that Appellant quit her employment, and that she was an at-
will employee who could have been fired for good cause or no cause at all, the
circuit court concluded that Appellant could not prove wrongful discharge if the
matter proceeded to trial. The court also determined that Appellant’s statewide
emergency management claim (KRS Chapter 39A), negligence per se claim (KRS
446.070), and retaliation claim (KRS 338.121) were unsupported by the record.
Based on the foregoing, the Marshall Circuit Court concluded that
even when the record was considered in a light most favorable to Appellant with
all doubts resolved in her favor, there was no genuine issue of any material fact
and Appellees were entitled to a judgment as a matter of law. This appeal
followed.
-5- STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if 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.” Kentucky Rules of Civil Procedure (“CR”) 56.03. “The 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). Summary
judgment should be granted only if it appears impossible that the nonmoving party
will be able to produce evidence at trial warranting a judgment in his favor. Id.
“Even though a trial court may believe the party opposing the motion may not
succeed at trial, it should not render a summary judgment if there is any issue of
material fact.” Id. Finally, “[t]he 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).
ARGUMENTS AND ANALYSIS
Appellant first argues that in dismissing her claims, the Marshall
Circuit Court erred in failing to apply the correct summary judgment standard.
-6- Citing Steelvest, supra, Appellant asserts that on a motion for summary judgment,
all issues of fact are to be resolved in favor of the non-movant. Appellant argues
that in considering Appellees’ motion for summary judgment, the Marshall Circuit
Court improperly applied an opposite standard by resolving factual issues in favor
of Appellees. Specifically, Appellant maintains that in contrast to her claim that
she was discharged from her employment for reporting her concerns regarding
workplace safety in the midst of the COVID-19 pandemic, the circuit court
determined that Marshall County properly worked with state and local officials to
enact safety measures to prevent any workplace outbreaks of the virus. Appellant
argues that this finding was improper, as the court failed to resolve this issue of
fact in her favor. She asserts that the question is not whether the evidence she
propounded is true or false, but rather whether it created genuine issues of material
fact sufficient to overcome Appellees’ motion for summary judgment. She argues
that because the circuit court erred in failing to consider the evidence in a light
most favorable to the non-movant, the entry of summary judgment must be
reversed.
The focus of both Appellant’s complaint, and the circuit court’s
resolution of Appellees’ motion for summary judgment, was Appellant’s
contention that she was wrongfully discharged from employment per KRS 338.010
and KRS 39A.010. In determining that there was no genuine issue of material fact
-7- on this claim, and that Appellees were entitled to a judgment as a matter of law, the
circuit court found that Appellant was not fired but rather that she quit her job.
This finding is supported by the record. Appellant acknowledged in
the trial record, as well as in her appellate brief, that she resigned from her
employment with Marshall County.1 It cannot reasonably be argued that she was
wrongfully discharged from employment, when she acknowledges having
immediately resigned in protest to her suspension for insubordination. There are
no genuine issues of material fact on this issue, and Appellees are entitled to a
judgment as a matter of law on her claim of wrongful discharge. The Marshall
Circuit Court expressly applied the correct standard in so ruling.
Appellant goes on to argue that she provided adequate evidence to
overcome summary judgment on her claim of wrongful discharge in violation of
KRS Chapter 39A (“Statewide Emergency Management Programs”). Specifically,
Appellant points to Governor Andy Beshear’s Executive Order 2020-215, made in
concert with KRS Chapter 39A, which allowed certain essential businesses to
remain open during the pandemic, but required that sick or exposed employees be
sent home. Appellant argues that Appellees’ failure to send home 911 employees
who were exposed to the virus violated the Governor’s executive order. This
1 “In an immediate response to the suspension, Hanson . . . tendered her resignation[.]” Appellant’s Brief at p. 8, citing Record (“R.”) Vol III pgs. 808-66; R. Vol. IV pgs. 867-1008; and, R. Vol. V pgs. 1025-86.
-8- failure, she asserts, resulted in her constructive discharge because she was left with
no choice but to resign her employment to avoid exposure to the virus. She also
argues that, though she did resign, Appellees’ refusal to accept the rescission of her
resignation four days later was itself an improper termination of her employment.
Appellant did not plead constructive discharge in her complaint, and it
appears that the first time this claim was raised was in her response to Appellees’
motion for summary judgment. In disposing of Appellees’ motion, the circuit
court did briefly note that “there is no evidence of constructive discharge in that
her working conditions were not so intolerable that she was forced to resign.”
Arguendo, even if Appellant’s claim of constructive discharge were properly
pleaded and argued, we agree that there is no genuine issue of material fact as to
this claim, and that Appellees were entitled to summary judgment.
“The commonly accepted standard for constructive discharge is
whether, based upon objective criteria, the conditions created by the employer’s
action are so intolerable that a reasonable person would feel compelled to
resign.” Northeast Health Management, Inc. v. Cotton, 56 S.W.3d 440, 445 (Ky.
App. 2001) (internal quotation marks, footnote, and citation omitted). Even when
viewing the record in a light most favorable to Appellant per Steelvest, it is void of
any objective criteria creating conditions so intolerable that a reasonable person
would have felt compelled to resign. Although Appellant subjectively believed
-9- that Townsend’s presence in the workplace threatened her health and safety by
exposing her to COVID-19, she was incorrect as the record reveals that Townsend
did not contract COVID-19 nor expose others to the virus during the relevant
timeframe. Appellant was not privy to Townsend’s medical records (nor should
she be); she was not vested with the authority to make human resources decisions
on behalf of her superiors; and, she produced no evidence of exposure or infection
in the workplace arising from Appellees’ policies or conduct.
Appellant, through counsel, acknowledges that she was “extremely
concerned” and “beyond terrified” regarding COVID-19. This was a widespread
and understandable response to the virus, especially in the early weeks and months
of the pandemic. However, one’s subjective and emotional response to the
pandemic is not a substitute for the objective criteria of intolerable workplace
conditions required to sustain a claim of constructive discharge. The Marshall
Circuit Court correctly found that Appellant was not constructively discharged, and
we find no error on this issue.
Lastly, Appellant claims entitlement to damages under KRS 446.070.
This statute provides that, “[a] person injured by the violation of any statute may
recover from the offender such damages as he sustained by reason of the violation,
although a penalty or forfeiture is imposed for such violation.” As the record does
not demonstrate any violation of statute nor resultant injury, this argument is moot.
-10- CONCLUSION
The circuit court correctly found that there were no genuine issues as
to any material fact, and that Appellees were entitled to a judgment as a matter of
law. Scifres, supra. For these reasons, we find no error and affirm the Marshall
Circuit Court’s order granting summary judgment in favor of Appellees.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Marilyn Shrewsbury Stacey A. Blankenship Eddyville, Kentucky Kristen N. Krueger Paducah, Kentucky
-11-