McCown v. GRAY KENTUCKY TELEVISION, INC.

295 S.W.3d 116, 28 I.E.R. Cas. (BNA) 1508, 2008 Ky. App. LEXIS 342, 2008 WL 4755240
CourtCourt of Appeals of Kentucky
DecidedOctober 31, 2008
Docket2007-CA-001947-MR
StatusPublished
Cited by4 cases

This text of 295 S.W.3d 116 (McCown v. GRAY KENTUCKY TELEVISION, INC.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCown v. GRAY KENTUCKY TELEVISION, INC., 295 S.W.3d 116, 28 I.E.R. Cas. (BNA) 1508, 2008 Ky. App. LEXIS 342, 2008 WL 4755240 (Ky. Ct. App. 2008).

Opinion

OPINION

ACREE, Judge.

Robert MeCown appeals from orders of the Perry Circuit Court granting a partial directed verdict and a partial summary judgment in favor of Gray Kentucky Television, Inc. MeCown was dismissed from his job by Gray after refusing to sign a chemical screening consent and release form as required of all employees. He sued, claiming wrongful termination and asking for punitive damages. We affirm the trial court’s orders granting judgment in favor of Gray.

Prior to his termination, MeCown was employed in the technical department of WYMT, a television station owned by Gray. In 1998, Gray adopted a policy designed to prevent substance abuse by its employees. As part of Gray’s new policy, employees were required to sign a chemical screening consent and release form. Gray set a deadline of November 20, 1998, for all employees to sign and return the forms relating to the new substance abuse policy.

When MeCown failed to do so, his direct supervisor was asked to speak to him about his failure to sign and return the forms. MeCown refused to sign the forms. The station’s Vice President and General Manager, Ernestine Cornett, then met with MeCown who informed her that he would like to contact an attorney with regard to the release. Cornett agreed and gave him three weeks to reconsider signing the release. MeCown never contacted Cornett to inform her of any advice obtained from an attorney. However, he did tell other employees at WYMT that he had perused the internet and found a Kentucky statute he believed created a legal conflict with the language of the release. Meanwhile, Cornett consulted both the attorney who drafted the release and Gray’s general counsel to obtain legal advice regarding the validity of the release under Kentucky law. After reassurance by Gray’s counsel, Cornett gave MeCown a final opportunity to sign the release. When he failed to do so, he was fired.

MeCown filed a complaint against Gray alleging he was wrongfully terminated from employment in violation of Kentucky law. Eventually, he amended his complaint to request punitive damages, claiming that Gray acted with oppression and malice. At trial, the court granted a directed verdict in Gray’s favor on the wrongful termination claim and granted *118 summary judgment for Gray on the issue of punitive damages. This appeal followed.

McCown argues first that the trial court granted Gray’s motion for a directed verdict contrary to the standard set forth in Kentucky Rules of Civil Procedure (CR) 50.01. That rule allows “the [trial] court [to] direct a verdict where there is no evidence of probative value to support the opposite result.” Gibbs v. Wickersham, 133 S.W.3d 494, 496 (Ky.App.2004). In ruling as it did, the trial court correctly recognized that Kentucky follows the doctrine of at-will employment, permitting an employer to fire employees “for good cause, for no cause, or for a cause that some might view as morally indefensible[.]” Grzyb v. Evans, 700 S.W.2d 399, 400 (Ky.1985) (citation omitted). However, the Grzyb Court did adopt the position of the Michigan Supreme Court in Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692, 316 N.W.2d 710 (1982), recognizing two exceptions in which discharging an employee is so contrary to public policy that it becomes actionable. First, an employee’s termination can be actionable where it is based upon the employee’s refusal to perform an illegal act as a condition of employment. Second, we recognize a cause of action for wrongful termination where an employee is fired for exercising a legal right conferred by a statute. Grzyb, 700 S.W.2d at 402. McCown claims this second exception applies here.

McCown claims his termination violated Kentucky Revised Statute (KRS) 336.700 which reads, in relevant part, as follows:

(2) Notwithstanding any provision of the Kentucky Revised Statutes to the contrary, no employer shall require as a condition or precondition of employment that any employee or person seeking employment waive, arbitrate, or otherwise diminish any existing or future claim, right, or benefit to which the employee or person seeking employment would otherwise be entitled under any provision of the Kentucky Revised Statutes or any federal law.

In its order granting a directed verdict, the trial court stated that McCown failed to present evidence of any right which he would be required to give up if he signed the release. The Kentucky Supreme Court has previously stated that wrongful discharge will only be found where it is “contrary to a fundamental and well-defined public policy ... evidenced by a constitutional or statutory provision.” Grzyb, 700 S.W.2d at 401. Further, the determination of whether the public policy claimed by the discharged employee meets these criteria is a question of law. Id. In this case, the trial court found that the release was limited in application and did not encompass waiver of any clearly defined rights. Thus, McCown’s discharge for refusing to sign the release did not violate public policy.

But McCown interprets the language of Gray’s release as forcing him to waive potential claims arising out of any injury sustained during the process of obtaining a specimen or sample for testing. According to McCown, if he suffered such an injury, for example becoming infected with a blood-born disease, he would be unable to pursue either workers’ compensation benefits or a personal injury claim due to his having signed the release. The language which McCown found objectionable reads as follows:

I hereby release and hold harmless the Company, the medical review officer or other medical professionals, the laboratory, their employees, agents and contractors from liability arising from this request to furnish this or any specimen or sample, the testing of the specimen or sample, and any decisions made con- *119 eerning my application for employment or my continued employment, based upon the results of the tests.

The trial court concluded, as a matter of law, that the language of the release did not require McCown to waive the protections of the workers’ compensation statute. As noted by the trial court, the release covered only claims arising from the request to furnish a sample, the testing of samples, and any adverse employment decision based on the test results. The release did not address or require the release of any claims arising out of the actual taking of samples.

The Kentucky Supreme Court has previously determined that a release which waives liability for injury must contain very specific elements.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Marion Hughes v. UPS Supply Chain Solutions, Inc.
Court of Appeals of Kentucky, 2025
UPS Supply Chain Solutions, Inc. v. Marion Hughes
Court of Appeals of Kentucky, 2025
Ramirez v. Bolster & Jeffries Health Care Group, LLC
277 F. Supp. 3d 889 (W.D. Kentucky, 2017)
Kugler v. LexisNexis Occupational Health Solutions, Inc.
16 F. Supp. 3d 999 (E.D. Wisconsin, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
295 S.W.3d 116, 28 I.E.R. Cas. (BNA) 1508, 2008 Ky. App. LEXIS 342, 2008 WL 4755240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccown-v-gray-kentucky-television-inc-kyctapp-2008.