NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0595n.06
No. 16-6604
FILED
Oct 31, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KOFI ALEXANDER, )
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
EAGLE MANUFACTURING COMPANY, LLC, )
DISTRICT OF KENTUCKY
)
Defendant-Appellee. )
)
)
)
BEFORE: GIBBONS, ROGERS, and DONALD, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. In August 2013, Kofi Alexander witnessed
coworkers engaging in allegedly illegal activity at Eagle Manufacturing Company, LLC
(“Eagle”). After objecting to such activity and reporting it to management, Alexander was fired.
Alexander sued Eagle for wrongful discharge in violation of public policy under Kentucky law.
The district court granted Eagle’s motion to dismiss for failure to state a claim and denied
Alexander leave to file a second amended complaint. We affirm.
I.
Eagle is a manufacturing company that performs drilling work on engine blocks for
various automobile manufacturers, including Ford Motor Company. Eagle operates out of two
neighboring buildings in Florence, Kentucky. In the first building, Eagle cuts and drills the raw
engine blocks and then inspects them for compliance with the manufacturers’ specifications. If
No. 16-6604, Alexander v. Eagle Mfg. Co.
the drilled engine blocks are non-compliant, they are considered defective and are not to be
shipped to the various manufacturers.
Because Ford had encountered problems with defective engine blocks from Eagle in the
past, Ford installed its own temporary employees in the Eagle plant to inspect the engine blocks
for compliance with Ford’s specifications. If a drilled engine block is defective, the Ford
employee paints the symbol “E-2” on the non-compliant block, which signifies that it is not to be
shipped to Ford’s manufacturing plants. If the Ford employee finds that a drilled engine block is
compliant, a different symbol is painted on the block that indicates it can be shipped to Ford.
Once the engine blocks are cut, drilled, and inspected in the first building, they are then
taken to a second building for final processing, inspection, and shipment. Alexander worked in
this second building. He was responsible for a final compliance check to ensure that no
defective engine blocks were shipped to the automobile manufacturers. Once Alexander signed
off on the engine blocks, they were sent to a quality assurance employee for final inspection and
eventual shipment to the appropriate automobile-manufacturing facility.
On Friday, August 30, 2013, Alexander was working the second shift at Eagle when he
“noticed three first shift Eagle employees from the other building hanging around the loaded
skids of engine blocks.” DE 11, Page ID 73. Alexander subsequently went on break, but had to
return to his work station when he forgot his car keys. When he returned to his station,
Alexander witnessed one of the first-shift employees “wiping off E-2 codes from defective
blocks with paint remover.” Id. at Page ID 74. Alexander confronted the three first-shift
employees and asked them “who was going to put their name on the documents, signing off on
the shipment of the[] defective engine blocks, and misrepresenting the defective engine blocks as
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No. 16-6604, Alexander v. Eagle Mfg. Co.
good engine blocks.” The first-shift supervisor replied, “I’ll put my f—in name on them,” and
ordered Alexander to return to work. Id. at Page ID 75.
Soon after the incident, Alexander’s boss, the second-shift supervisor, arrived at the
facility and was informed that Alexander had cursed at the first-shift supervisor. Alexander
denied the allegation and explained to the second-shift supervisor what he had witnessed. The
second-shift supervisor told Alexander to “take the rest of the day off.” Id. at Page ID 76. Prior
to leaving, Alexander told one of the first-shift employees that he intended “to report the incident
and the erasure of the E-2 codes from defective blocks to the HR department” when he returned
to work the following Tuesday.1 Id.
On Tuesday morning, “Alexander received a phone call from his supervisor telling him
not to report to work, and that he had been fired.” Id. In response, Alexander called Eagle’s
Human Resources (“HR”) Department and told them “he was being fired for discovering and
reporting the first shift’s erasure of E-2 codes from defective engine blocks, and to prevent him
from reporting the fraudulent activity to the HR department” when he returned to work. Id.
Despite telling Alexander it would look into his allegations and follow-up, the HR Department
allegedly never did so. Alexander continued to call Eagle representatives—including the head of
Eagle’s parent company—to protest his termination, but no one responded favorably.
On July 7, 2015, Alexander sued Eagle in federal court for wrongful discharge in
violation of public policy under Kentucky law. The district court granted Eagle’s motion to
dismiss for failure to state a claim, finding that Alexander’s termination did not satisfy either of
the two public-policy exceptions to Kentucky’s terminable-at-will employment doctrine. The
court also denied Alexander leave to further amend his complaint because it found that any
amendment would be futile. Alexander now appeals.
1
Monday was the Labor Day holiday.
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II.
We review a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6) de
novo. Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006). To survive a Rule 12(b)(6) motion
to dismiss, a plaintiff must provide “enough facts to state a claim [for] relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility
when the complaint’s factual content is sufficient to “allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Probability is not required, but there must be more “than a sheer possibility that
a defendant has acted unlawfully.” Id. In analyzing the defendant’s motion, we accept all
factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s
favor. Logsdon v. Hains, 492 F.3d 334, 340 (6th Cir. 2007).
Alexander claims he was wrongfully discharged in violation of public policy under
Kentucky law. In applying Kentucky law, we must “follow the decisions of the state’s highest
court when that court has addressed the relevant issue.” Pennington v. State Farm Mut. Auto.
Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009) (citation omitted). If the Kentucky Supreme Court
has not addressed the precise issue, then we must predict how that court would rule if it were to
confront the question. See id. In making this determination, we may “rely on the state’s
intermediate appellate court decisions, along with other persuasive authority.” Kepley v. Lanz,
715 F.3d 969, 972 (6th Cir. 2013) (citation omitted). Indeed, “[a] federal court may not
disregard a decision of the state appellate court on point, unless it is convinced by other
persuasive data that the highest court of the state would decide otherwise.” Ziegler v. IBP Hog
Mkt., Inc., 249 F.3d 509, 517 (6th Cir. 2001) (citation omitted). This includes both published
and unpublished state court decisions. Id. (citing Talley v. State Farm Fire & Cas. Co., 223 F.3d
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No. 16-6604, Alexander v. Eagle Mfg. Co.
323, 328 (6th Cir. 2000)). As always, we must be wary of adopting “substantive innovation[s]”
in state law. Combs v. Int’l Ins. Co., 354 F.3d 568, 578 (6th Cir. 2004). Thus, “when given a
choice between an interpretation of [state] law which reasonably restricts liability, and one which
greatly expands liability, we should choose the narrower and more reasonable path.” Id. at 577
(citations omitted) (alteration in original).
Under Kentucky law, an employer may generally discharge an at-will employee “for
good cause, for no cause, or for a cause that some might view as morally indefensible.”
Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730, 731 (Ky. 1983) (citation omitted).
Kentucky courts recognize a narrow exception where the discharge was “contrary to a
fundamental and well-defined public policy as evidenced by [an] existing . . . constitutional or
statutory provision.” Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985). Absent an “explicit
legislative statement[] prohibiting the discharge[,]” only “two situations exist where ‘grounds for
discharging an employee are so contrary to public policy as to be actionable.’” Id. at 402
(quoting Suchodolski v. Michigan Consol. Gas Co., 316 N.W.2d 710, 711 (Mich. 1982)). The
first is where the employee was discharged for “fail[ing] or refus[ing] to violate a law in the
course of employment.” Hill v. Ky. Lottery Corp., 327 S.W.3d 412, 422 (Ky. 2010). The second
exists where the employee was discharged for exercising “a right conferred by [a] well-
established legislative enactment.” Id. Alexander does not identify, nor can we find, any statute
expressly prohibiting his discharge. Thus, his wrongful-discharge claim must fit into one of the
two public-policy exceptions enumerated above. Because Alexander disavowed any reliance on
the second exception, we address the merits of his claim under only the first exception.2
2
Although Alexander relies on both public-policy exceptions in his brief, counsel disclaimed any reliance
on the second exception at oral argument.
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No. 16-6604, Alexander v. Eagle Mfg. Co.
Alexander argues that he was discharged for refusing to violate various Kentucky laws—
namely, KRS § 517.020 (deceptive business practices); KRS § 517.050 (falsifying business
records); KRS § 514.040 (theft by deception); and several provisions of Kentucky’s Uniform
Commercial Code. The district court found that Alexander could not satisfy this exception
because he was never affirmatively requested to violate any law. Alexander concedes that he
was never specifically asked to violate the law but argues that an affirmative request is not
required. Instead, he contends it is enough that he witnessed unlawful activity within the
company, objected to it, and proactively refused to participate in it. Although we are not
convinced that the Kentucky Supreme Court would endorse the district court’s “affirmative
request” requirement, we agree that this exception is not broad enough to encompass
Alexander’s wrongful-discharge claim.
We note, initially, that the cases relied upon by the district court do not resolve the issue.
In those cases, it is true, the court found a wrongful discharge under Kentucky law where an
employee refused to comply with the employer’s affirmative request that he or she violate the
law. See Burton v. Zwicker & Assocs., PSC, 978 F. Supp. 2d 759, 768–69 (E.D. Ky. 2013); Hill,
327 S.W.3d at 422; Ne. Health Mgmt., Inc. v. Cotton, 56 S.W.3d 440, 447 (Ky. Ct. App. 2001);
Sparks v. Henson, No. 2011-CA-423-MR, 2012 WL 5463877, at *7 (Ky. Ct. App. 2012). But
those cases did not create an additional element—an explicit request from the employer that the
employee violate the law—for the tort of wrongful discharge in Kentucky. Instead, the plaintiffs
in those cases merely presented such evidence to prove their respective wrongful-discharge
claims. Cf. Morrison v. B. Braun Med. Inc., 663 F.3d 251, 257 (6th Cir. 2011) (recognizing that,
although prior cases had involved an employer’s explicit request to violate the law, the plaintiff
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No. 16-6604, Alexander v. Eagle Mfg. Co.
was not required to make such a showing to prevail on her wrongful-discharge claim under
Michigan law).
As Eagle correctly notes, however, the Kentucky Court of Appeals has explicitly held
that “an employee claiming wrongful discharge due to a refusal to violate the law must show an
affirmative request to him/her by the employer to violate the law.” Welsh v. Phoenix Transp.
Servs., No. 2007-CA-001231-MR, 2009 Ky. App. LEXIS 137, at *13 (Ky. Ct. App. Aug. 14,
2009). Several district courts, relying on Welsh, have held the same. See, e.g., Charles v. Print
Fulfillment Servs., LLC, No. 3:11-CV-00553-TBR, 2015 WL 5786817, at *7 (W.D. Ky. Sept. 30,
2015); Burnett v. Pinelake Reg’l Hosp., LLC, No. 5:09-cv-00024, 2010 WL 231741, at *2–3
(W.D. Ky. Jan. 14, 2010). And this court has suggested that such a request is necessary to
invoke the exception. See Burton v. Zwicker & Assoc., PSC, 577 F. App’x 555, 560 (6th Cir.
2014) (noting that, in order to invoke the public-policy exception, “an employer must only
request that the employee break the law”). But the Kentucky Supreme Court ordered Welsh not
to be published when it denied discretionary review. Welsh v. Phoenix Transp. Servs., LLC, No.
2007-CA-001231-MR, 2009 WL 2475206 (Ky. Ct. App. Aug. 14, 2009). Accordingly, although
this court may rely on Welsh as persuasive authority in deciding whether an affirmative request
to violate the law is required under this exception, see Ziegler, 249 F.3d at 517; Ky. R. Civ. P.
76.28(4)(c), there may be “persuasive data” that the Kentucky Supreme Court would not require
such a request, Ziegler, 249 F.3d at 517.3
3
The only court to find a plausible claim for wrongful discharge under Kentucky law without an
affirmative request to violate the law is Miller v. Reminger Co., L.P.A., No. 3:11-cv-315-CRS, 2012 WL 2050239
(W.D. Ky. June 6, 2012). In Miller, the court found that a discharged attorney had pled allegations sufficient to
support a wrongful-discharge claim under Kentucky law where, despite never being asked to participate, he refused
to acquiesce in a law firm’s illegal billing practice and was fired as a result. Id. at *7. But Miller is an unpublished
district court decision that neither binds this court nor provides insight into how the Kentucky Supreme Court would
decide the issue. And, given the sparseness of its reasoning, it provides little aid in discerning the contours of this
exception. Id. Thus, its relevance here is limited, at best.
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No. 16-6604, Alexander v. Eagle Mfg. Co.
Presumably, the policy behind this exception is to prevent an employee from having to
choose between losing his job and breaking the law. That policy is implicated, of course, when
an employer affirmatively requests that the employee violate the law. See, e.g., Hill, 327 S.W.3d
at 422–23. But it is also implicated when an employee learns of illegal activity and, although not
directly invited to participate by his employer, knows he will inevitably become complicit in the
illegality by performing his normal work responsibilities. We think it likely that the Kentucky
Supreme Court would apply this exception to not only the former situation, but also the latter.
Unfortunately for Alexander, his situation fits into neither.
If Alexander had knowledge that the “E-2” engine blocks were defective but nonetheless
signed off on them, it is plausible that he would be complicit in a violation of KRS § 517.050
(falsifying business records) and KRS § 514.040 (theft by deception). The problem for
Alexander, however, is that it is not apparent from his complaint that he would have inevitably
been forced to participate or become complicit in any illegal activity. For one, he does not allege
that he was the only Eagle employee tasked with signing off on the engine blocks. In fact, the
first-shift supervisor told Alexander he would sign the necessary paperwork for the allegedly
defective “E-2” engine blocks. We cannot assume, therefore, that had Alexander not spoken up,
he would have necessarily become a forced participant in the allegedly unlawful activity he
witnessed. Moreover, the complaint does not plausibly suggest that the activity Alexander
observed was anything more than an isolated incident. Thus, even if Alexander were the sole
employee tasked with signing off on the engine blocks, it would be unreasonable to infer that by
signing the requisite paperwork in the future, he would necessarily be participating in unlawful
activity. And, finally, even if Eagle’s erasure of the “E-2” codes was systematic, any future act
of signing off on these defective engine blocks would not have made Alexander automatically
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No. 16-6604, Alexander v. Eagle Mfg. Co.
complicit in this illegal activity. Because both KRS § 517.050 and § 514.040 require criminal
intent, any unwitting authorization of a defective engine block in the future would not have
created criminal liability for Alexander. In short, although his coworkers may have been
engaging in illegal activity, Alexander, himself, was never affirmatively asked to violate the law,
nor did his position make it inevitable that he would be forced to do so. Thus, regardless of the
precise contours of this exception, it is simply not broad enough to encompass Alexander’s
claim.
We recognize that this result, if his allegations are accepted, creates an inequity for
Alexander. And, certainly, we do not condone Eagle’s alleged conduct. In most states, an
employee in Alexander’s situation would be protected from termination. This protection
generally comes in the form of a whistleblower statute, which encourages employees who
uncover unlawful activity in the workplace to report such activity, without fear of reprisal. See,
e.g., Tenn. Code. Ann. § 50-1-304(b). Although Kentucky has a whistleblower statute covering
public employees, see KRS § 61.102, the Kentucky legislature, whatever its motives, has not
extended this protection to private employees, see Beach v. ResCare, Inc., No. 2004-CA-002559-
MR, 2005 WL 2174404, at *3 (Ky. Ct. App. Sept. 9, 2005). Instead, private employees, like
Alexander, are left with Kentucky’s default rule, which allows them to be fired “for good cause,
for no cause, or for a cause that some might view as morally indefensible.” Firestone,
666 S.W.2d at 731. The Kentucky Supreme Court has, of course, crafted two exceptions to this
general rule, but those exceptions are “narrow[].” Grzyb, 700 S.W.2d at 400. And, importantly,
those exceptions do not include the internal reporting of unlawful activity within a company by a
private employee. In essence, then, Alexander asks us to create a third exception to Kentucky’s
employment-at-will doctrine. But, because neither the Kentucky legislature nor the Kentucky
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No. 16-6604, Alexander v. Eagle Mfg. Co.
courts have seen fit to do so, our hands are tied. We therefore affirm the district court’s
dismissal of Alexander’s wrongful-discharge claim.
III.
The district court also denied Alexander further leave to amend his complaint, concluding
that the amendment was futile because Alexander failed to provide details regarding his
proposed amendment. When a district court bases its denial of leave to amend on futility
grounds, we review that decision de novo. Miller v. Champion Enters., Inc., 346 F.3d 660, 671
(6th Cir. 2003) (citing Ziegler, 249 F.3d at 518).
Federal Rule of Civil Procedure 15(a)(2) provides that the district court “should freely
give leave [to amend a complaint] when justice so requires.” Although Rule 15(a)(2) evinces a
liberal amendment policy, “the right to amend is not absolute or automatic.” Tucker v.
Middleburg-Legacy Place, 539 F.3d 545, 551 (6th Cir. 2008) (citation omitted). Pertinent
factors in deciding whether to grant leave to amend include “undue delay in filing, lack of notice
to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by
previous amendment, undue prejudice to the opposing party, and futility of the amendment.”
Seals v. Gen. Motors Corp., 546 F.3d 766, 770 (6th Cir. 2008) (citation omitted).
Because Alexander failed to follow the proper procedure for seeking leave to amend, the
district court did not err in denying Alexander’s request for leave to amend his complaint.4 In his
memorandum in opposition to Eagle’s motion to dismiss, Alexander stated, “Should the Court
find merit to any of the defendant’s arguments, the appropriate course of action . . . would be to
grant Alexander leave to file a second amended complaint, rather than dismissing his complaint
4
Although the district court rested its denial on futility grounds, the proper basis for denying Alexander’s
request was, more appropriately, lack of notice to Eagle. See Shillman v. United States, 221 F.3d 1336, 2000 WL
923761, at *6 (6th Cir. 2000) (unpublished table decision). Nevertheless, we can “affirm for any reason presented in
the record.” Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 514 (6th Cir. 2003) (citation omitted).
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No. 16-6604, Alexander v. Eagle Mfg. Co.
altogether.” DE 15, Page ID 120–21. But Alexander did not identify what amendments he
would make to his complaint, nor did he attach a copy of the amended complaint to his brief.
See Kuyat v. BioMimetic Therapeutics, Inc., 747 F.3d 435, 444 (6th Cir. 2014) (“Normally, a
party seeking an amendment should attach a copy of the amended complaint.”). As we have
previously recognized, “[a] request for leave to amend[,] ‘almost as an aside, to the district court
in a memorandum in opposition to the defendant’s motion to dismiss is . . . not a motion to
amend.’” La. Sch.Emps.’ Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 486 (6th Cir. 2010)
(quoting Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776, 784 (6th Cir. 2000)) (omission
in original). If Alexander wanted an opportunity to amend his complaint further, it was his
responsibility to provide details concerning the proposed amendments. Absent such a showing,
Alexander was not entitled to an advisory opinion from the district court informing him of the
deficiencies in his complaint and allowing him an opportunity to cure those deficiencies. Id.
Accordingly, the district court did not err in denying Alexander’s request for leave to amend.
IV.
For the foregoing reasons, we affirm both the district court’s dismissal of Alexander’s
wrongful-discharge claim and its order denying him leave to amend his complaint.
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No. 16-6604, Alexander v. Eagle Mfg. Co.
ROGERS, Circuit Judge, dissenting. The majority very properly concludes that, when an
employee’s course of business makes it inevitable that he will violate the law in furtherance of
his duties, and he proactively refuses to do so, his refusal implicates the core concern of
Kentucky’s refusal-to-violate theory of wrongful discharge—preventing employees from being
harmed by the choice between following the law and being out of work. However, I disagree
that Alexander’s complaint does not state a plausible claim under this theory of wrongful
discharge.
It is reasonable to infer from Alexander’s amended complaint that continuing along his
regular course of employment would have required him to illegally sign off on defective engine
blocks, thus presenting Alexander with an ultimatum—refuse or be fired. Alexander alleged that
his main task at work was to ensure no defective engine blocks were shipped to Eagle’s
manufacturer customers. By alleging that first-shift employees were attempting “to get him to
unwittingly sign off on the shipment” of defective blocks, Alexander implies that, had he
conducted business as usual, he would have been faced with inspecting the very engine blocks
that the first-shift employees tampered with. Furthermore, reading the complaint in the light
most favorable to Alexander, it is reasonable to infer that the first-shift employees’ behavior was
likely not an isolated incident. Thus, had Alexander continued signing off on Ford engine blocks
that were not marked with “E-2” as non-defective blocks, knowing that employees were masking
defective blocks before the blocks reached his station, he would have been aiding an illegal
scheme. Finally, a reasonable jury could take Alexander’s asking the first-shift shipping
coordinator, “who was going to put their name on the documents, signing off on the shipment of
these defective engine blocks, and misrepresenting the defective engine blocks as good engine
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No. 16-6604, Alexander v. Eagle Mfg. Co.
blocks,” as a proactive refusal to comply—a refusal to violate the law that is protected from
retaliation.
Thus, Alexander’s amended complaint alleges a plausible claim for wrongful termination
in violation of public policy under Kentucky law. I would therefore reverse the district court’s
judgment granting Eagle’s motion to dismiss.
13