Dаnny D. BENNINGFIELD, Appellant, v. PETTIT ENVIRONMENTAL, INC., Appellee.
No. 2004-CA-001632-MR.
Court of Appeals of Kentucky.
Sept. 16, 2005.
Discretionary Review Denied by Supreme Court Feb. 15, 2006.
183 S.W.3d 567
Donna King Perry, Wendy C. Hyland, Louisville, KY, for Appellee.
Before BARBER and JOHNSON, Judges; MILLER, Senior Judge.1
OPINION
BARBER, Judge.
Appellant, Danny D. Benningfield (Benningfield), 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 cеrtifications 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 Administratiоn (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
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 employеe 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 аpplies 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
(3)(a) No person shall discharge or in any manner discriminate against any emрloyee 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 othеrs 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 recеipt 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 оr 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 dis-
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
Also, Benningfield asserts that because
In keeping with the holding in Grzyb, we hold that the Benningfield‘s wrongful discharge claim, under
Now, we turn to Benningfield‘s IIED claim. We must determine whether the trial court properly granted summаry 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 thе 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 mаtter 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
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 thаt: (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 elemеnts 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, Benningfield 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 requirеd 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 risе 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 Benningfield‘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 whiсh 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
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.
JOHNSON, Judge, Concurring in Part and Dissenting in Part.
I concur with the Majority Opinion‘s affirming of the trial court‘s summary judgment on Benningfield‘s claim for intentional infliction of emotional distress. However, I respectfully dissent as to the dismissal of his claim for wrongful discharge.
The result of the Majority Opinion turns on its conclusion that Grzyb, supra, “does not require the statute to specify that the remedy provided is exclusive.”2 This reading of Grzyb totally ignores the following critical language:
KRS 344.040 provides that it is “unlawful practice for an employer ... to discharge any individual ... because of such individual‘s race, color, religion, national origin, sex, or age between forty (40) and seventy (70).” The Kentucky Commission on Human Rights is structured in KRS Chapter 344 to adjudicate complaints of discrimination on these grounds. Thus, the same statute which would provide the necessary underpinning for a wrongful discharge suit where there is sufficient evidence to prove sex discrimination in employment practices also structures the remedy. The statute not only creates the public policy but preempts the field of its application [emphasis added].3
Thus, the holding of Grzyb clearly turns on the exclusivity of the remedies provided in Chapter 344 which preempt any other action.
The provisions of
KRS 13B.140 notwithstanding, commission shall not take jurisdiction over any claim of an unlawful practice under this chаpter while a claim of the same person seeking relief for the same grievance underKRS 344.450 is pending. A state court shall not take jurisdiction over any claim of an unlawful practice under this chapter while a claim of the same person seeking relief for the same grievance is pending before the commission. A final determination by a state court or a final order of the commission of a claim alleging an unlawful practice underKRS 344.450 shall exclude any other administrative action or proceeding brought in accor-dance with KRS Chapter 13B by the same person based on the same grievance.
Any person injured by any act in violation of the provisions of this chapter shall have a civil cause of action in Circuit Court to enjoin further violations and to recover the actual damages sustained, together with the costs of the law suit. The court‘s order or judgment shall include a reasonable fee for the plaintiff‘s attorney of record and any other remedies contained in this chapter.
A remedy selected under these statutes becomes the exclusive remedy.4
Conversely,
Further, I find nothing persuasive in the holding in Hines, since the U.S. District Court merely stated its holding without providing any analysis concerning the preemption language in the civil rights statutes. The Court merely stated that it was applying “the teachings of Grzyb [to] the wrongful discharge claims pertaining to OSHA”5 without recognizing that Grzyb turned on the exclusivity provisions in
I do find Gutierrez v. Sundancer Indian Jewelry, Inc.,6 to be persuasive. This New Mexico case is analogous to the case before us because the employee alleged that he had been wrongfully discharged by his employer in retaliation for requesting a safety investigation. The employee first pursued an administrative action against his employer, and then filed a civil lawsuit which was dismissed by the trial court. The Court of Appeals of New Mexico concluded that in New Mexico the common law requires an employer to exercise reasonable care to provide an employee with a safe workplace, a public policy exceрtion has been recognized to the common law employment-at-will doctrine, and nothing in the safety act indicates the Legislature intended to preempt common law remedies.7 Accordingly, the Court held that New Mexico‘s safety act was not intended to preempt common law remedies for an employee alleging wrongful discharge in retaliation for reporting safety violations and it reversed the summary judgment dismissing the employee‘s action.8
Similarly, I would reverse the Jefferson Circuit Court and reinstate Benningfield‘s claim for wrongful discharge.