Nicole Eversole v. Commonwealth of Kentucky, Cabinet for Health and Family Services

• Court: Court of Appeals of Kentucky
• Decided: August 23, 2024
• Docket: 2023-CA-1010
• Status: Unpublished

Opinion

RENDERED: AUGUST 23, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2023-CA-1010-MR

NICOLE EVERSOLE APPELLANT

APPEAL FROM BOONE CIRCUIT COURT v. HONORABLE JAMES SCHRAND, JUDGE ACTION NO. 23-CI-00063

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: ECKERLE, A. JONES, AND TAYLOR, JUDGES.

ECKERLE, JUDGE: Appellant, Nicole Eversole (“Eversole”) appeals an order

dismissing her whistleblower allegation for failure to state a claim upon which

relief may be granted. We hold that Eversole has sufficiently pled allegations to survive a motion to dismiss. Hence, we reverse and remand for additional

proceedings.

BACKGROUND

Eversole worked as a social worker with the Cabinet for Health and

Family Services (“Cabinet”) in Gallatin County, Kentucky, in the Cabinet’s

Northern Bluegrass Region. She had served the Cabinet for approximately 13

years and was “chief” in Gallatin County. Eversole claimed that she had been

awarded exemplary performance reviews for many years.

Eversole lived with a man (“Father”), who had an active case with the

Cabinet involving his daughter with another woman. As a part of his household,

Eversole and her children were considered part of Father’s case, and Eversole’s

children’s information was part of the case as well. Eversole claimed that Father

was informed “over the 4th of July weekend” in 2022 that he had lost custody of

his daughter and that a removal hearing had been scheduled. In response, Father

asked Eversole to access his confidential case in the Cabinet’s system with his

permission. She complied, found the date, time, and location of the next court

date, which was in Bracken District Court in the emergency Dependency, Neglect,

and Abuse case, the very next day. She passed this information, as well as the

name of the social worker, along to Father. Believing that she had unearthed

violations of Father’s rights, Eversole decided to testify at the removal hearing on

-2- July 5, 2022, regarding alleged failures of the Cabinet to follow the law. At that

hearing, she testified that her actions were consistent with Cabinet procedures.

Eversole testified that the Cabinet violated Father’s constitutional

rights by failing to notify him that his child had reportedly been exposed to a

pedophile living in the home with Father’s estranged, drug-addicted wife.

Eversole also averred that the Cabinet filed other petitions against Father, in May

and June of 2022, causing him to lose temporary custody of his child. Following

Eversole’s July 5, 2022, testimony, the Trial Court restored Father’s custodial

rights and struck him as the alleged perpetrator of any abuse or neglect.

Eversole claims that the Cabinet’s Regional Administrator for

Bracken County subsequently complained about Eversole’s testimony. At a

meeting to address those concerns, Eversole claims she submitted numerous,

alleged violations committed by Bracken County Cabinet employees, including

violations of state laws and regulations, fraud and abuses of power, and violations

of Father’s constitutional rights. The Cabinet’s management investigated

Eversole’s access to Father’s file in the Cabinet computer system and informed

Eversole that the Cabinet would be giving her a Major Disciplinary Action.

Eversole was then suspended without pay for three days for the stated reason of

accessing Father’s file via the computer, and she was ordered to undergo necessary

training.

-3- Eversole then filed a Complaint in Boone Circuit Court alleging a

cause of action under the Kentucky Whistleblower Act, Kentucky Revised Statutes

(“KRS”) Chapter 61 (the “Whistleblower Act”). Her Complaint raised a single

count – reprisal for making a protected report. Eversole complained that all of the

Cabinet’s actions after her testimony were retaliatory and thus violated KRS

61.102.

In response, the Cabinet filed a motion to dismiss under Kentucky

Rule of Civil Procedure (“CR”) 12.02(f), alleging that the Complaint failed to state

a claim upon which relief may be granted because the facts as alleged did not

allege a violation of the Whistleblower Act. Specifically, the Cabinet argued that it

had followed all statutes and regulations, and Eversole’s allegation is merely a

disagreement with the statutory and regulatory scheme, which is not a cognizable

cause of action under the Whistleblower Act. The Cabinet also argued that none of

the allegations concerned private information; thus, Eversole’s disclosure was not

covered by the Whistleblower Act.

The Trial Court agreed with the Cabinet and dismissed the case.

Eversole filed a motion to alter, amend, or vacate, which the Trial Court also

denied. Eversole then timely appealed.

-4- ANALYSIS

On appeal, Eversole claims that the Trial Court erred by granting the

motion to dismiss. “A motion to dismiss for failure to state a claim upon which

relief may be granted ‘admits as true the material facts of the complaint.’” Fox v.

Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (quoting Upchurch v. Clinton County, 330

S.W.2d 428, 429-30 (Ky. 1959)). “The court should not grant the motion unless it

appears the pleading party would not be entitled to relief under any set of facts

which could be proved in support of h[er] claim.” Pari-Mutuel Clerks’ Union of

Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801,

803 (Ky. 1977) (citing Clay, Ky. Prac., 3rd Ed., Civil Rule 12.02, Comment 9,

n.17). No factual determinations are made by the Trial Court at this stage. James

v. Wilson, 95 S.W.3d 875, 884 (Ky. App. 2002). “[T]he court must ask if the facts

alleged in the complaint can be proved, would the plaintiff be entitled to relief?”

Id. Because the issue is a pure question of law, our appellate review of the Trial

Court’s order is de novo. Fox, 317 S.W.3d at 7.

KRS 61.102(1) prohibits covered employers from reprisal against

covered employees who in good faith disclose “any facts or information relative to

an actual or suspected violation of any law, statute, [or] . . . administrative

regulation[.]” This statute requires an employee to establish four elements to

sustain her cause:

-5- (1) the employer is an officer of the state;

(2) the employee is employed by the state;

(3) the employee made or attempted to make a good faith report or disclosure of a suspected violation of state or local law to an appropriate body or authority; and

(4) the employer took action or threatened to take action to discourage the employee from making such a disclosure or to punish the employee for making such a disclosure.

Moss v. Kentucky State University, 465 S.W.3d 457, 459-60 (Ky. App. 2014)

(quoting Davidson v. Commonwealth of Kentucky, Dep’t of Military Affairs, 152

S.W.3d 247, 251 (Ky. App. 2004)).

Here, the Cabinet argues that Eversole does not meet the third prong

of this test. Additionally, the Cabinet claims that Eversole’s Complaint is based on

publicly-available information, which removes her allegations from the

Whistleblower Act’s protections. To support its arguments, the Cabinet points to

Davidson v. Commonwealth, Dep’t of Military Affairs, 152 S.W.3d 247 (Ky. App.

2004) (holding that no whistleblower claim was viable where the report or

disclosure only concerned information already known); and Helbig v. City of

Bowling Green, 371 S.W.3d 740 (Ky. App. 2011) (holding that no whistleblower

claim was viable where the report or disclosure concerned an allegedly illegal

policy and a statute, both of which were already publicly-available information).

-6- Regarding the alleged violations, the Cabinet claims that it followed

all requisite notice requirements when instituting the temporary removal

proceedings. The Cabinet argues that none of the applicable statutes and

regulations required it to notify Father, whom it deems an absent parent, about the

emergency custody order or temporary removal hearing. See KRS 620.060-

620.080. The Cabinet specifically states:

The only law that places a burden on [the Cabinet] to notify an absent parent is 922 KAR[1] 1:140 Section 3(3), which requires [the Cabinet] to perform an absent parent search within 30 days of the child entering custody of the cabinet.

Appellee’s Brief at 5. Moreover, the Cabinet avers that the hearing was an

emergency due to the alleged behavior of the mother of the child, which required

immediate removal from her custody regardless of the status of the non-custodial

father.

Eversole responds that, at this early dismissal stage where the Cabinet

has not yet filed an Answer, the Trial Court did not afford her Complaint proper

deference and construction. Eversole points to her allegations that the Cabinet

denied Father’s constitutional rights, violated laws and regulations, and committed

fraud and abuses of power. Eversole cites KRS 600.010, KRS 620.020(1), KRS

1 Kentucky Administrative Regulations.

-7- 620.070, CR 4.01-4.05, and the Kentucky Family Court Rules of Practice and

Procedure (“FCRPP”) 17, as potential sources of her due process claim, noting that

all of these statutes and rules require protections, including some form of notice to

parents. Eversole notes that the petitions filed in Father’s child’s case never listed

an address for Father, even though he was having regular contact and visitation

with his child. The Cabinet seemingly agrees that Father was never noticed about

any of the proceedings.

We have reviewed the regulations, statutes, and rules cited by both

parties, and we hold that Eversole’s Complaint does sufficiently allege at least a

suspected violation of Father’s due process right to be notified. And we are further

convinced that it was premature to grant CR 12.02(f) relief at this juncture because

it would appear the Cabinet failed to comply with the Bracken District Court

Rules, which neither party cites, that requires:

502. Petitions

Any petition filed with this Court shall comply with the following conditions:

...

B. Full information concerning the child’s parents and their address(es). The petitioner shall make diligent efforts to locate the child’s parents, including but not limited to initiating contact with the Child Support Division of the appropriate County Attorney’s Office.

-8- 503. The Effects of Service on Only One Parent/Persons Exercising Custodial Control or Supervision

The judge may permit the Temporary Removal Hearing or the adjudicatory hearing to go forward when the non-custodial parent has not been served in accordance with FCRPP 18(1)[2] if it is established on the record that petitioner has made diligent efforts to serve all other parties, including initiating contact with the Child Support Division of the County Attorney’s Office, in an attempt to locate any absent parent. The petitioner shall make continuing diligent efforts after the hearing to locate and notify all persons who were not served.

Pursuant to at least this local rule, it would appear that if the

allegations in Eversole’s Complaint are considered true, as required at this early

stage of the litigation, then Eversole has sufficiently pled a cause of action to

survive CR 12.02(f) dismissal. See Kentucky Supreme Court Rule 1.040(3)(a)

2 That Rule requires:

(1) Any request for an emergency custody order in a dependency, neglect or abuse case shall be in writing and shall be accompanied by an affidavit for emergency custody order which contains the contents of the official AOC form, AOC-DNA-2.1 (Affidavit for Emergency Custody Order), and which alleges dependency, or abuse or neglect. The affidavit shall be presented to the judge with any other documentation presented at the time of the filing of the request. The official AOC form may be utilized for compliance with this rule.

The AOC-DNA-2.1 Emergency custody Order Affidavit requires the affiant to list the juvenile’s legal mother and legal father separately, including listing their addresses, e-mails, phone numbers, social security numbers, dates of birth, names of others living in their homes, and indications of whether they are legal custodians or not.

-9- (local rules are of “binding effect” once in writing, approved by the Chief Justice,

and filed with the Supreme Court Clerk).

“The purpose of the Kentucky Whistleblower Act ‘is to protect

employees who possess knowledge of wrongdoing that is concealed or not publicly

known, and who step forward to help uncover and disclose that information.’”

Administrative Office of Courts v. Miller, 468 S.W.3d 323, 330 (Ky. 2015)

(quoting Workforce Development Cabinet v. Gaines, 276 S.W.3d 789, 792 (Ky.

2008)). Here, the material facts as pled in Eversole’s Complaint are that Eversole

discovered allegedly concealed, confidential, and not-publicly-known wrongdoing

by the Cabinet as it relates to alleged contravention of Father’s constitutional

rights; violations of local and state rules, laws, and regulations; as well as fraud

and abuses of power; all pertaining to the Cabinet’s alleged failure to notify Father

of the emergency or temporary proceedings. Eversole’s Complaint specifically

and materially alleges that the Cabinet filed multiple petitions regarding Father’s

child and, despite Father having regular contact and parenting time with his child

prior to the filing of the petitions, the Cabinet made “no attempts . . . to inform him

of the actions or the circumstances regarding his child.” Furthermore, the

Complaint alleges that Father was not notified of the date, time, or location of the

temporary removal hearing. At minimum, it would appear facially that Eversole

pled a violation of Father’s due process rights under the Bracken District Court

-10- Rules. Gaines v. Nichols, No. 2011-CA-000413-MR, 2011 WL 6260365 (Ky.

App. Dec. 16, 2011) (finding due process violation when Jefferson Circuit Court

Rule 401 was not followed).

Regarding the Cabinet’s other argument, that Eversole’s allegation

concerns only public information, we likewise hold that the Cabinet’s summary

statement does not support granting CR 12.02(f) relief. Eversole’s allegation is not

just a disagreement with statutes and regulations. Her claim is that in a

confidential – not public – case, the Cabinet’s employees violated Father’s due

process rights by, at minimum, failing to include his known address on the

petitions filed in Father’s child’s case and failing to notify Father about the

emergency or temporary proceedings, some of which involved the abuse of his

child while not in his custody. Eversole’s whistleblower claim stems from the

reprisal she directly suffered from disclosing these alleged violations – violations

she only discovered by reviewing confidential information in a confidential case

(albeit by allegedly improper access).3 Logically, this case cannot be both

confidential and public. But, more important, Eversole’s claim is that the Cabinet

reprimanded her for testifying about her disclosure of confidential information to

3 Whether Eversole was in fact disciplined for unauthorized access of the Cabinet’s computer system or for blowing the whistle on the Cabinet’s improper conduct is not before this Court, and any factual dispute is not the proper subject of a motion for dismissal under the law.

-11- Father because the Cabinet had not given Father the non-public information. Had

the information been public, Father would not have needed Eversole to access the

confidential information. Thus, the facts as pled are sufficient to survive a motion

under CR 12.02(f). Some discovery is warranted here.

Furthermore, Helbig and Davidson’s prohibition against

whistleblower claims that allege only publicly-known allegations of wrongdoing is

inapplicable here because the allegations sub judice relate to concealed and not

publicly-available information in confidential proceedings. See also Miller, 468

S.W.3d at 331 (“[W]e hold as a matter of law that Miller’s whistleblower claim

fails for at least the lack of disclosure of concealed or non-public information.”).

We reiterate that the bar is high for a Trial Court to grant a defensive

motion for relief under CR 12.02(f). The Trial Court must:

consider as true the material facts alleged in the complaint and grant that motion only if satisfied that the plaintiff would not be entitled to relief under any set of facts that could be proved in support of the claim.

Barnett v. Central Kentucky Hauling, LLC, 617 S.W.3d 339, 341 (Ky. 2021).

Under the CR 12.02(f) standards, Eversole’s Complaint sufficiently alleges

material facts under which she may be entitled to relief. Barnett, supra. We

caution, though, that our decision is solely limited to whether sufficient material

facts were pled to survive dismissal, not whether Eversole’s claim is ultimately

meritorious or can even survive summary judgment, which is a different standard.

-12- Thus, on remand our Opinion should not be construed as affording any merit or

weight to either side on the substantive claim.

CONCLUSION

Eversole’s Complaint on its face sufficiently pleads material facts

which, if proven, may lead to an actionable whistleblower claim. Accordingly, the

Trial Court erred by granting the Cabinet’s CR 12.02(f) motion to dismiss at the

early stage of the litigation before any discovery. The dismissal is reversed, and

the case is remanded to the Trial Court for additional proceedings.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Kelly Sensel Wiley Blake A. Vogt Covington, Kentucky Lucas Roberts Frankfort, Kentucky

-13-