Timothy C. Gleason v. Magna Wave, Inc.

• Court: Court of Appeals of Kentucky
• Decided: December 12, 2025
• Docket: 2024-CA-1300
• Status: Published

Opinion

RENDERED: DECEMBER 12, 2025; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1300-MR

TIMOTHY C. GLEASON APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MITCHELL PERRY, JUDGE ACTION NO. 24-CI-002412

MAGNA WAVE, INC. APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: COMBS, A. JONES, AND KAREM, JUDGES.

KAREM, JUDGE: Timothy C. Gleason (“Gleason”) appeals from the Jefferson

Circuit Court’s order granting Magna Wave, Inc.’s motion to dismiss Gleason’s

wrongful termination action. After review, we reverse and remand for further

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Gleason was employed by Magna Wave, Inc. (“Magna Wave”) as a

Product Specialist. In his complaint, Gleason asserted that this role required him to market and sell Magna Wave’s products to customers across multiple states. To

effectuate these responsibilities, he was required to conduct telephone sales calls.

Magna Wave employees were instructed to record all phone calls placed to

customers, both in and out of Kentucky, without a disclaimer during the

conversation that the call would be recorded.1

In his complaint, Gleason identified the states to which he was

required to make sales calls; these included California, Delaware, Florida, Illinois,

Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and

Washington. At some point during his employment, Gleason informed his

supervisors that “it was his understanding that recording telephone calls with

customers without their consent violates laws” in these states.2 Thus, he refused to

comply with the recording policy. Magna Wave terminated Gleason’s

employment on October 5, 2023, for allegedly refusing to perform required job

duties.

Following his termination, Gleason initiated this lawsuit. In his

complaint, he brought a single cause of action: wrongful discharge in violation of

public policy. Specifically, Gleason alleged that his refusal to comply with the

1 No evidence was in the record regarding the practice of issuing a disclaimer regarding the recording of the conversation with a customer. The Court therefore assumes no such disclaimer was used by Magna Wave. 2 Magna Wave does not dispute the illegality of recordings in the states identified by Gleason.

-2- company’s directive to record calls without consent constituted a protected act

under the public policy exception to Kentucky’s at-will employment doctrine.

Magna Wave filed a motion to dismiss which the circuit court granted.

In its order, the circuit court determined that, for a plaintiff to satisfy the public

policy exception to at-will employment, they must claim a violation of Kentucky

law. Because Kentucky law allows telephone conversations to be recorded with

the consent of only one party, the circuit court found that Gleason was not entitled

to relief and thus granted Magna Wave’s motion to dismiss.3 Gleason

subsequently filed a motion to alter, amend, or vacate, which the circuit court

denied. This appeal followed.

ANALYSIS

1. Standard of Review

A motion to dismiss under Kentucky Rule of Civil Procedure (“CR”)

12.02(f) is properly granted when “it appears the pleading party could not prove

any set of facts in support of his claim that would entitle him to relief.” Wood v.

Wyeth-Ayerst Laboratories, Div. of American Home Products, 82 S.W.3d 849, 851

(Ky. 2002) (citation omitted). “In ruling on a motion to dismiss, the pleadings

3 Kentucky does prohibit eavesdropping and, in fact, classifies it as a “D felony.” However, Kentucky Revised Statute (“KRS”) 526.010 defines “eavesdrop” as the recording of conversations “without the consent of at least one (1) party thereto[.]” Id. (emphasis added). As the trial court observed below, “[t]his means that in Kentucky it is permissible to record a phone conversation as long as one party consents.” Because the Magna Wave employee placing the call consents to the recording, the mandate of consent by one party to the call is met.

-3- should be liberally construed in the light most favorable to the plaintiff, all

allegations being taken as true.” Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App.

2009) (citation omitted).

The trial court’s decision to grant Magna Wave’s motion to dismiss

pursuant to CR 12.02(f) is reviewed de novo on appeal. 3D Enterprises

Contracting Corp. v. Louisville and Jefferson County Metropolitan Sewer Dist.,

174 S.W.3d 440, 445 (Ky. 2005). Under the de novo standard, we owe no

deference to the legal conclusions of the lower courts. Bluegrass Trust for Historic

Preservation v. Lexington-Fayette Urban Cnty. Gov’t Planning Commission, 701

S.W.3d 196, 204 (Ky. 2024).

2. Discussion

In Firestone Textile Co. Division, Firestone Tire and Rubber Co. v.

Meadows, 666 S.W.2d 730 (Ky. 1983), the Kentucky Supreme Court addressed the

issue of an employee’s discharge in retaliation for seeking workers’ compensation

benefits. In its opinion it restated what is now well-established in Kentucky, that

an employer may terminate employment “for good cause, for no cause, or for a

cause that some might view as morally indefensible.” Id. at 731 (citations

omitted). The Court went on to recognize a judicial exception to this rule – the

public policy exception. Id. at 731-32. In adopting this exception, the Court

looked to the wisdom of the Wisconsin Supreme Court. In Brockmeyer v. Dun &

-4- Bradstreet, 335 N.W.2d 834, 835 (Wis. 1983), the Wisconsin Supreme Court

concluded that a narrow public policy exception to at-will employment was in the

best interest of “employees, employers and the public . . . .” Id. at 840.

[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. . . . The public policy must be evidenced by a constitutional or statutory provision. An employee cannot be fired for refusing to violate the constitution or a statute. Employers will be held liable for those terminations that effectuate an unlawful end.

Id.

In applying this analysis to facts before it, when finding for the

employee, the Firestone Court stated, “[i]t is an important public interest that

injured employees shall receive, and employers shall be obligated to pay, for

medical expenses, rehabilitative services and a portion of lost wages. Injured

employees should not become public charges.” Firestone, 666 S.W.3d at 733.

Although not explicitly stated, it is clear the Court believed the retaliatory

termination of an employee for exercising their right to workers’ compensation

benefits was neither in the best interest of the employee nor the public.

Two years after Firestone, our Supreme Court was again tasked with

reviewing the parameters of at-will employment when a wrongful discharge is

alleged. In Grzyb v. Evans, 700 S.W.2d 399 (Ky. 1985), the Court found for the

employer, noting that Evans’ claims for both sex discrimination and violation of

-5- the “freedom of association doctrine” “lacked even a passing reference to any

specific constitutional or statutory provisions upon which [he] might base a claim.”

Id. at 401-02. It further specified, “an employment-related nexus is critical to the

creation of a ‘clearly defined’ and ‘suitably controlled’ cause of action for

wrongful discharge.” Id. at 402. Most importantly, the Court identified two

notable exceptions to their holding in Firestone.

We adopt, as an appropriate caveat to our decision in Firestone Textile Co. Div. v. Meadows, supra, the position of the Michigan Supreme Court in Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692, 316 N.W.2d 710 (1982). The Michigan court held that only two situations exist where “grounds for discharging an employee are so contrary to public policy as to be actionable” absent “explicit legislative statements prohibiting the discharge.” 316 N.W.2d at 711. First, “where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment.” Second, “when the reason for a discharge was the employee’s exercise of a right conferred by well-established legislative enactment.” 316 N.W.2d at 711-12. Here the concept of an employment-related nexus is critical to the creation of a “clearly defined” and “suitably controlled” cause of action for wrongful discharge. These are the limitations imposed by Firestone Textile Co. Div. v. Meadows, supra at 733.

Id. at 402.

In the case sub judice, Gleason refused to follow the directives of his

employer, Magna Wave, and record phone calls without the other party’s consent

in states where such actions were prohibited by law. He maintains that the trial

-6- court erred in dismissing his complaint by too narrowly defining the public policy

exception to at-will employment. Specifically, the trial court dismissed Gleason’s

claim because the terms of his employment, of which he refused to comply, did not

violate Kentucky law. Gleason argues no such restriction exists.

In support of Magna Wave’s argument that the trial court acted

appropriately, it provides a notable recitation of cases concerning at-will

employment and violation of Kentucky statutes. However, it relies primarily on

three cases presumably addressing the narrow question before this Court as to

whether the firing of an employee for refusal to violate the law is disallowed only

if that law is a Kentucky law.

Magna Wave maintains that the Supreme Court in Grzyb emphasized

that a valid claim for wrongful discharge in violation of public policy must involve

a public policy clearly defined by “Kentucky law/statute/constitutional provision.”

However, no such language was used by the Court. Rather, the Court disallowed

the claim for sex discrimination based on statutory preclusion of the suit. Id. at

401. As for the “freedom of association” claim, the Court analyzed both the

Kentucky Constitution and the Federal Constitution and found neither provided a

cause of action against an employer for wrongful discharge. Id.

In Shrout v. The TFE Group, 161 S.W.3d 351 (Ky. App. 2005), the

second case upon which Magna Wave relies, a truck driver challenged his

-7- termination following a positive drug test. He alleged his employer did not adhere

to federal regulations when conducting the testing. Id. at 351. The question before

the Court was “whether the employer’s failure to comply with federal testing

regulations creates an exception to Kentucky’s employment at-will doctrine.” Id.

(emphasis added). This limited question, in which the Court answered in the

negative, bears little resemblance to the case at bar and is not informative to the

question before us.

Lastly, Magna Wave’s reliance on Chavez v. Dakkota Integrated

Systems, LLC, 832 F. Supp. 2d 786 (W.D. Ky. 2011), is likewise misplaced. In

Chavez, the plaintiff alleged that he was terminated for refusing to violate the

Consumer Protection Act and Deceptive Business Practices laws by placing

dropped airbags into production. Although the court repeatedly referred to

“Kentucky law,” it was clear from the outset that the plaintiff simply: “failed to

show that his discharge for refusing to use dropped airbags was contrary to a

fundamental, well-defined policy evidenced by either the Consumer Protection Act

or the Deceptive Business Practices section of the penal code.” Id. at 802. The

Chavez court did not hold, nor even suggest, that a violation of public policy may

arise only where the law the employee refused to violate was a Kentucky statute.

Several other jurisdictions have recognized that wrongful discharge

claims may lie when an employee is terminated for refusing to violate any law,

-8- state or federal. Smuck v. National Management Corp., 540 N.W.2d 669, 673

(Iowa Ct. App. 1995) (collecting cases) (“We believe it is contrary to public policy

to fire an employee for refusing to break any law, be it state or federal.”). As those

courts have emphasized, it is not the public policy of the outside jurisdiction that is

being enforced. Rather, it is the public policy of the forum state—here,

Kentucky—not to place employees in the untenable position of choosing between

their livelihood and their legal obligations. Strozinsky v. School Dist. of Brown

Deer, 614 N.W.2d 443, 460 (Wis. 2000). The essence of the public-policy

exception has always been to prevent that very Hobson’s choice.

Kentucky’s at-will doctrine is broad, but it has never been absolute.

We have long recognized that public policy considerations are paramount in

determining whether an employee has been wrongfully discharged. Firestone, 666

S.W.2d at 733. While Kentucky permits one-party consent recordings, that rule is

not universal across the country. As Gleason correctly observed to his employer,

recording interstate telephone calls without consent may expose the caller to

liability in states that prohibit the practice. For instance, in Kearney v. Salomon

Smith Barney, Inc., 39 Cal. 4th 95, 130-31, 137 P.3d 914, 938-39 (2006), the

California Supreme Court held that brokers in Georgia who recorded calls with

California clients violated California’s anti-eavesdropping statutes. Although the

court declined to apply the law retroactively, it cautioned that “out-of-state

-9- companies that do business in California now are on notice that . . . they are

subject to California law” and may face the “full range of civil sanctions” for

future violations. Id.

To require an employee to engage in conduct that may expose him to

civil or criminal penalties in another jurisdiction as a condition of employment

offends basic notions of fairness and the very public policy our wrongful-discharge

exception was designed to protect. An employee should not have to choose

between keeping his job and keeping the law. That is precisely the situation

Gleason alleges he faced.

CONCLUSION

For the foregoing reasons, we reverse the Jefferson Circuit Court’s

order granting Magna Wave’s motion to dismiss and remand for further

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Michael J. Morgan Derek Miles Covington, Kentucky Kenneth C. Whitlock, Jr. Louisville, Kentucky

-10-