Karen C. BOYKINS, Movant, v. HOUSING AUTHORITY OF LOUISVILLE, Respondent.
No. 92-SC-242-DG
Supreme Court of Kentucky.
Nov. 19, 1992.
As Amended Dec. 23, 1992.
842 S.W.2d 527
Further challenge to the tainted jurors during the voir dire procedure would have been an exercise in futility because the judge “cleansed” the tainted jurors by extracting from them affirmative answers to the “magic question.” He asked, could they put aside their previous knowledge and decide this case solely on the basis of the evidence presented at this trial. To expect them to put aside their previous knowledge, is to deny human nature. Opinion once formed can hardly be entirely erased, regardless of a conscientious effort they might undertake to do sо.
Montgomery v. Commonwealth, Ky., 819 S.W.2d 713 (1991), wherein we applied the principle of implied bias in a similar situation, is distinguished in the Majority Opinion “on its facts because Montgomery dealt with the trial judge‘s failure to grant a defendant‘s challenge of a juror for cause,” rather than because of failure to grant a continuance. It is, quite obviously, а distinction without a difference.
The Commonwealth‘s principal argument was:
“... any evidence concerning appellant heard at [the confederate‘s] trial by these jurors was merely cumulative to the evidence adduced at appellant‘s trial. The four jurors heard nothing concerning appellant at the [confederate‘s] trial that was not also stated at appellant‘s trial.”
This is a shocking notion of a fair trial. My colleagues should reject it out of hand.
COMBS and LAMBERT, JJ., join this dissent.
A. Thomas Johnson, Louisville, for movant.
Richard H. Nash, Jr., Louisville, for respondent.
STEPHENS, Chief Justice.
The primary issue we decide on this appeal is whether an employer‘s firing of a
Karen C. Boykins was employed as an executive secretary by the Housing Authority of Louisville (hereinafter HAL). Nearly one year after her infant son was injured in an apartment owned, operated and managed by HAL, Boykins, as next friend of her infant son, filed suit against HAL alleging negligence. Approximately four months later Boykins was discharged from HAL. For the purpose of this appeal we assume, as was stipulated for summary judgment, that the discharge of Boykins was in retaliation for filing suit against HAL.
Finding that the terminatiоn of Boykins was not contrary to public policy evidenced by a constitutional or statutory provision, the Jefferson Circuit Court granted summary judgment for HAL. The Court of Appeals affirmed the trial court‘s ruling on Boykins’ discharge under state common law, but remanded the case for consideration of Boykins’ claim under
We first look at whether
No employer shall subject to reprisal, or directly or indirectly use, оr threaten to use, any official authority or influence, in any manner whatsoever, which tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any employe who in good faith reports, discloses, divulges, or otherwise brings to the attеntion of the attorney general, the auditor of public accounts, the gener-
al assembly of the Commonwealth of Kentucky or any of its members or employes, the legislative research commission or any of its committees, members or employes, the judiciary or any member or employe of the judiciary, any law enforcement agency or its employes, or any other appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, or endangerment of public health or safety. No employer shall require any employe to give notice prior to making such a report, disclosure, or divulgence. (Emphasis added.)
Boykins argues that her suit against HAL as the next friend of her son was, in essence, a report of information regarding mismanagement and endangerment of public health and safety by HAL. Boykins contends that her discharge was a direct reprisal for making such disclosures.
The primary issue that we now decide is whether the “open-courts” provision in Section 14 of the Kentucky Constitution creates an exception to the terminable-at-will doctrine solely as applied to the facts before us. We have discussed the terminable-at-will doctrine at length in Firestone Textile Company Division v. Meadows, Ky., 666 S.W.2d 730 (1983) and Grzyb v. Evans, Ky., 700 S.W.2d 399 (1985).
In Firestone the appellant was employed at Firestone Textile Company when he suffered a back injury which required him to be off work for a substantial period of time. Thereafter appellant was first assigned light duties, then he was assigned duties beyond his capacity and finally he was terminated for seeking worker‘s compensation benefits.
In Firestone we embraced Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983), to establish the limitations on “any judicial exceptions to the employment-at-will doctrine.” (Emphasis added.) 335 N.W.2d at 835. The limitations are that:
(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. (Emphasis added.)
Firestone at 731 (quoting Brockmeyer, 335 N.W.2d at 840.).
The Workers’ Compensation Act has no specific provisions restricting an employer from discharging an employee for thе employee‘s exercise of his rights under the Workers’ Compensation Act. However, in Firestone we found that implicit in the Workers’ Compensation Act “is a public policy that an employee has a right to be free to assert a lawful claim for benefits without suffering retaliatory discharge.” Firestone at 732.1
The case before us today is distinguishable from Firestone in that herein thеre is no statutory or constitutional provision which explicitly or implicitly creates a public policy which prohibits retaliatory discharge.
We emphasized that a cause of action for retaliatory discharge must involve public policy which is “clearly defined by statute and directed at providing statutory protection to the worker in his employment situation.” Grzyb at 400. Holding that the First and Fourteenth Amendments do not, per se, provide a cause of action against emрloyers for wrongful discharge, we held that respondent‘s complaint failed to state a cause of action. Id. at 402.
In Grzyb we adopted a caveat to the Firestone decision. We stated that there exist two situations where the discharge of an employee violates fundamental public policy even absent explicit legislative stаtements prohibiting the discharge. In effect, we judicially created a public policy. The two situations described are:
[f]irst, “where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment.” Secоnd, “when the reason for a discharge was the employee‘s exercise of a right conferred by well-established legislative enactment.”
Grzyb at 402 (quoting Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692, 316 N.W.2d 710, 711-712 (1982).)
The question we must ask is whether in this specific case the employer had the right to discharge an employee who brought private litigation against thе employer seeking damages from an incident not related to her employment. We answer the question in the affirmative.
In the case before us today there is no fundamental and well-defined public policy evidenced by existing law, as required by Firestone. Nor does either exception outlined in Grzyb apply.
Boykins argues that Section 14 of the Kentucky Constitution evidences public policy. She contends that HAL‘s retaliatory discharge was punishment for exercising her constitutional right to have the courts open to her pursuant to Kentucky Constitution Section 14.
Section 14 states that:
All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.
In Ludwig v. Johnson, 243 Ky. 533, 49 S.W.2d 347, 351 (1932) the Court stated that
[t]he imperative mandate of section 14 is that every person, for an injury done him in his person, shall have remedy by due course of law.... The Constitution guarantees to him his right to a day in court for the purpose of establishing the alleged wrong perpetrated on him and recovery of his resultant damages.
Section 14 is a mandate to the government to provide courts open to all for appropriate judicial remedy. Ludwig v. Johnson, supra, and other cases applying the protection afforded by Section 14, address statutes limiting or barring access to courts, not the countless pressures that might otherwise constrain the decision to sue. See, e.g., Perkins v. Northeastern Log Homes, Ky., 808 S.W.2d 809 (1991); McCollum v. Sisters of Charity, Ky., 799 S.W.2d 15 (1990); and Saylor v. Hall, Ky., 497 S.W.2d 218 (1973).
Section 14 has nothing to do with employment rights as such. There is no employment-related nexus between the constitutional policy stated in Section 14 and Boykins’ discharge. When Boykins filed suit against HAL on behalf of her infant son she found the court‘s doors open to her.
We stated in Firestone that “[e]mployers as a group have a legitimate interest to protect by having the cause of action for wrongful discharge clearly defined and suitably сontrolled.” Firestone at 733.
For the foregoing reasons, the Court of Appeals’ decision is affirmеd.
LAMBERT, LEIBSON, REYNOLDS and SPAIN, JJ., concur.
COMBS, J., concurs in part and dissents in part.
WINTERSHEIMER, JJ., dissents in a separate dissenting opinion. COMBS, J., joins in this dissent in regard to the Section 14 discussion.
WINTERSHEIMER, Justice, dissenting.
I must respectfully dissent from the majority opinion because
The statute in question should be broadly applied and interpreted so as to effectuate the purpose of the statute. The concept of open courts embodied in Constitution § 14 would be a hollow right if you lose your job as a result of availing yourself of thе court system and the whistle-blower law. I believe there is a fundamental and easily discerned public policy as expressed by the legislature in the whistle-blower statutes. In my view, the statute clearly protects public employees from any reprisal for disclosing violations of the law or dangers to the public health and safety. Certainly, the government or agents of the government must set a good example. The government should never be exempt from application of the law, otherwise the public‘s confidence in the credibility of the governmental authority is severely weakened.
If a public employee cannot act so as to file a lawsuit which publicly reports alleged improper management or maintenance in his or her own agency for fear of losing his or her job, there is a clear injustice. The employment at will doctrine should not be allowed to be a shield by any government agency to protect it from the responsibility for its acts.
The decision of the Court of Appeals should be reversed and the matter should be remanded for trial on the merits.
COMBS, J., joins in this dissent in regard to the Section 14 discussion.
Nos. 91-CA-1265-MR, 91-CA-1276-MR.
Court of Appeals of Kentucky.
June 5, 1992.
Discretionary Review Denied by Supreme Court Jan. 13, 1993.