Cabinet for Families & Children v. Cummings

OPINION OF THE COURT

In 1999, Dr. Scott Cummings (“Cummings”) filed suit against the Cabinet for Families and Children (“the Cabinet”), individual employees of the Cabinet, Viola Miller, Sharon Perry and Cary Willis, as well as the University of Louisville (“the University”), and individual University employees, Dr. Garrison and Dr. Martin for violations of the Kentucky Whistleblower Act (“the Act”). The Jefferson County Circuit Court granted summary judgment to all defendants except the University, finding that (1) Cummings was not an employee of the Cabinet, and (2) the Act did not create a cause of action for individual liability. Cummings appealed to the *427Court of Appeals, which reversed the trial court’s dismissal of the underlying charges. We accepted discretionary review of all three cases and hereby affirm in part and reverse in part the decision of the Court of Appeals.

FACTS

Prior to September 1999, Cummings was a tenured professor at the University. In addition, he was Director of the Center for Policy Research and Evaluation for the Urban Studies Institute (“the Institute”) at the University. As such, he and another colleague sought to secure a grant for the study of welfare reform across the state by submitting a proposal titled “A Plan to Evaluate the Implementation and Impact of Welfare Reform in Kentucky” (“the Proposal”) to the Cabinet. Soon thereafter, the Cabinet and the University’s Institute entered into a Program Administration Contract (“the Contract”), which allotted approximately $500,000 annually to the Institute to create a database from which panel studies could be conducted in order to evaluate the impact of welfare reform in Kentucky. The Contract specifically incorporated Cummings’s Proposal into the agreement, although Cummings himself did not sign the Contract.

Pursuant to the Contract, the Institute agreed to conduct panel studies, work in conjunction with the Cabinet to create appropriate indicators, submit invoices for requested payments at the end of each month, and provide information to the Cabinet upon request. The Institute was required to meet certain benchmarks for delivering reports (i.e., conduct phone surveys, provide preliminary findings, submit a project summary report, and provide the Cabinet with a bi-monthly narrative status report) unless otherwise approved by the Cabinet. Conversely, the Cabinet was to provide all requested information, and provide consultation and technical assistance (“defining the requirements, analysis, detail specifications, coding, testing, debugging and implementation”) to the Institute. The Cabinet was to also monitor all activities pursuant to the agreement. The Contract stated that the Cabinet disclaimed all liability for Social Security contributions relating to the compensation of the Institute.

In exchange for Cummings’s work on the study, the Cabinet reimbursed the University one-third of Cummings’s salary and fringe benefits during the fall and spring semesters and paid Cummings’s full salary and fringe benefits during the summer. Cummings’s teaching load at the University was reduced proportionately.

Cummings alleges that he was removed from his position on the study because he intended to disclose at a scheduled hearing before the Legislative Research Committee (“LRC”) that welfare reform in Kentucky had a disparate impact upon African-American and Appalachian families. Cummings alleges that the Cabinet can-celled his appearance before the LRC and that the University, at the direction of the Cabinet, removed him from the study.

STANDARD OF REVIEW

“The standard of review on appeal of a summary judgment is whether the circuit judge correctly found that there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law.” Pearson ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky.2002). Summary judgment is only proper when it would be impossible for the plaintiff to produce any evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991). In ruling on a motion for summary judgment, the court is required to construe the *428record in a light most favorable to the party opposing the motion. Id. The proper question then becomes whether the trial court properly held as a matter of law (1) that Cummings was not an employee of the Cabinet, and (2) that the individual employees of the Cabinet and University were not liable under the Act.

EMPLOYER/EMPLOYEE RELATIONSHIP

The Cabinet argues that Cummings was not an “employee” of the Cabinet. KRS 61.101(1) defines “employee” as follows:

(1) “Employee” means a person in the service of the Commonwealth of the Kentucky, or any of its political subdivisions, who is under contract of hire, express or implied, oral or written, where the Commonwealth, or any of its political subdivisions, has the power or right to control and direct the material details of work performance[.]

KRS 61.102 prohibits employers from subjecting public employees to reprisal for reporting information relating to the employer’s violation of the law, alleged fraud, or abuse, etc. It is undisputed that the Cabinet is an “employer” under the Act, as it is a political subdivision of the Commonwealth. See KRS 61.101(2). However, the Cabinet alleges, and the trial court agreed, that since Cummings was not a party to the Contract between the University’s Institute and the Cabinet, he was not an “employee” of the Cabinet for purposes of the Act.

The Cabinet directs us to Stewart v. University of Louisville, 65 S.W.3d 536 (Ky.App.2001), for guidance. In Stewart, the Court of Appeals found that a graduate student and recipient of a Regent’s Fellowship, which provided for a yearly stipend for study, was not an “employee” of the University for purposes of Kentucky’s discrimination statute (KRS 344.030) and KRS 61.102. The court held that although the graduate student received regular checks from the University, was required to submit reports to the University, and was not allowed to accept outside employment without the University’s permission, the reality of the underlying relationship was not that of employer-employee. Id. at 539-540. Although suit was brought pursuant to KRS 61.102, as well as KRS 344.030, the Court of Appeals’s analysis seemed to rely primarily on principles relating to KRS 344.030 and Title VII. Id. at 539 (“In determining whether an individual will be deemed an ‘employee’ for Title VII purposes, ‘one must examine the economic realities underlying the relationship between the individual and the so-called principal in an effort to determine whether that individual is likely to be susceptible to the discriminatory practices which the act was designed to eliminate.” ’ (quoting Armbruster v. Quinn, 711 F.2d 1332, 1340 (6th Cir.1983))). Nonetheless, Stewart is easily distinguishable from the current situation. The court there found that the majority of the graduate student’s duties were in furtherance of her academic work, rather than in performance of services for the University; and therefore, the “economic realities” of the situation dictated that she was not an employee of the University. Id. at 540. In the current case, Cummings’s duties and activities related to the study were clearly for the service of the Cabinet. In theory, the Cabinet was to use the findings of the study to present the LRC with an accurate picture of the effectiveness of the current welfare reform laws. In exchange for his work, the Cabinet paid a portion of Cummings’s salary. The dynamics of the relationship in the case at bar are certainly different than those in Stewart, whose holding is best confined to its particular facts, and our *429holding today is not inconsistent with the opinion in that case.

The trial court based its decision that Cummings was not an employee of the Cabinet on the fact that the only contract governing the study was between the Cabinet and the University. The court stated that although “Dr. Cummings may have obtained the contract for .the University with the tacit understanding that he would perform the contract,” the fact remained that he was not a party to the contract. We do not agree however, that the Contract entered into between the Cabinet and the University’s Institute is the only governing document of the arrangement. The language of the Contract specifically delineates that the Institute is to perform certain enumerated services for the Cabinet. Section 1. p. of the Contract states that the Institute is to “[p]erform all of the services identified in the Second Party’s [Institute’s] proposal dated October 1997 and titled ‘A PLAN TO EVALUATE THE IMPLEMENTATION AND IMPACT OF WELFARE REFORM IN KENTUCKY,’ which is hereby incorporated into this agreement as if attached .... ” That agreement was submitted and coauthored by Cummings and his name appears conspicuously throughout. The Proposal specifically identifies Cummings as “Director of the Center for Policy Research and Evaluation” and states that he will serve as “Co-principal Investigator” and “Co-chair of the Advisory Committee” for the study. The Proposal also contains the salary requirement of Cummings, and others chosen by him, in the annual budget. We believe by the express incorporation of Cummings’s Proposal into the Contract between the Cabinet and the Institute, Cummings became a person “under contract of hire” with the Cabinet, a political subdivision of the Commonwealth of Kentucky. KRS 61.101(1). As such, Cummings could be considered an employee of the Cabinet, for purposes of the Act, if the Cabinet “has the power or right to control and direct the material details of [Cummings’s] work performance.” Id.

Construing the evidence in the record in a light most favorable to Cummings, we must conclude that the trial court erred in granting the Cabinet summary judgment on this issue. The record shows that the Cabinet had the right to control and did control the details of Cummings’s work on the study. The Contract itself states that the Cabinet would provide the database with which Cummings was to work. The Cabinet was permitted to add additional recipients to “supplement under-reported categories” in the panel if necessary; work in conjunction with the Institute to determine the appropriate indicators to study; provide consultation and technical assistance to the Institute; and monitor all activities pursuant to the Contract. Cummings was to report his findings to the Cabinet regularly. In addition, the Cabinet had control over what information was presented to other state agencies, the public, the media, and the Legislature. Cummings’s affidavit alleges that the Cabinet dictated the specific details of the manner in which he was to draw the samples, create certain questionnaires, and analyze and interpret the data. Cummings further contends that he was not permitted to use his professional expertise in any of the determinations made, and that this manner of control by the Cabinet was not usually seen in this type of situation. Cummings states that he met regularly with Cabinet officials in person and via email, regarding the progress of the research, and that several of his reports were extensively re-written by the Cabinet. Cummings also states that the Cabinet used a detailed “Gantt chart,” which specified certain time lines and work product deadlines Cummings was required to *430meet, as a tool to monitor the Institute’s work on the study. The record also revealed copies of e-mails between Cummings and Cabinet employees where Cummings was specifically asked to remove the word “disparate” from his findings.

Also telling is that the Cabinet had enough control over Cummings’s work that it was ultimately able to remove him from the study altogether. The Act’s prohibition on retaliatory firing necessarily implies that an employer must be in a position to retaliate with the threat of one’s job. This is a type of situation that we believe the General Assembly envisioned and sought to protect when it enacted the Act. Accordingly, we find that it was improper for the trial court to grant summary judgment to the Cabinet, as the Cabinet and Cummings exhibited the type of employer-employee relationship encompassed by the Act’s provisions on whistle-blowing.

INDIVIDUAL LIABILITY

The trial court also granted summary judgment to the individual employees of the Cabinet and Drs. Martin and Garrison, Cummings’s supervisors at the University, because it concluded that the Act did not create a cause of action against individuals. Whether the Act provides a cause of action against individuals is an issue of first impression for this Court.

Cummings argues that the plain language of the statute defines employer as including “any person” and therefore, the plain meaning rule of statutory construction dictates that we construe “person” according to its common usage and literal meaning. KRS 446.080(4); Crenshaw v. Weinberg, 805 S.W.2d 129, 133 (Ky.1991). Any other construction, according to Cummings, would render the second sentence in KRS 61.101(2) superfluous. Garrison and Martin, on the other hand, argue that the term “person” is ambiguous and to apply the plain meaning rule would produce an absurd result. Executive Branch Ethics Com’n v. Stephens, 92 S.W.3d 69 (Ky.2002). Garrison and Martin contend that the second sentence in KRS 61.101(2) is present merely to incorporate a respon-deat superior liability upon employers. We agree.

This Court has “a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion.” Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky.1984). Statutory interpretation is a matter of law and we are not required to give deference to the trial court’s decision. Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky.2002). Our main objective is to construe the statute in accordance with its plain language and in order to effectuate the legislative intent. Id.

The definition of who is an “employer” under the Act is:

“Employer” means the Commonwealth of Kentucky or any of its political subdivisions. Employer also includes any person authorized to act on behalf of the Commonwealth, or any of its political subdivisions, with respect to formulation of policy or the supervision, in a managerial capacity, of subordinate employees.

KRS 61.101(2) (emphasis added). “[I]t is well-settled that ‘in expounding a statute, we must not be guided by a single sentence or member of a sentence, but [must] look to the provisions of the whole law, and to its object and policy.” ’ Wathen v. General Electric Co., 115 F.3d 400, 405 (6th Cir.1997) (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S.Ct. 1549, 1555, 95 L.Ed.2d 39 (1987)); Democratic Party of Kentucky v. Graham, 976 S.W.2d 423, 429 (Ky.1998); see Combs v. Hubb *431Coal Corp., 934 S.W.2d 250, 252-253 (Ky.1996); Henry v. Commonwealth, 312 Ky. 491, 493, 228 S.W.2d 32, 33 (1950).

In the penalty section of Kentucky’s Whistleblower Act, the Legislature provided for criminal liability for individuals who willfully violate the Act, showing that the Legislature knew how to provide for individual civil liability for policy makers and managers if it had intended to do so. The fact that only the Commonwealth or one of its political subdivisions could grant much of the relief afforded by the Act, i.e., “reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, exemplary or punitive damages, or any combination thereof,” KRS 61.990(4), reinforces this Court’s conclusion that the Legislature did not intend for policy makers and managers to be individually liable under the Act. See Abbamont v. Piscataway Township Bd. of Education, 138 N.J. 405, 650 A.2d 958, 964 (1994); Alejandro v. Robstown Independent School District, 131 S.W.3d 663, 668-669 (Tex.App.—Corpus Christi,2004). By providing that an aggrieved employee may be awarded “any combination” of the relief allowed under the Act, the Legislature clearly intended to afford an aggrieved employee all of the relief allowed under the Act. This purpose is defeated if an aggrieved employee could maintain an action solely against a policy maker or manager without joining the Commonwealth or a political subdivision as a party defendant.

In examining the “any person” language of the statute, one might argue that this language seems unnecessary or redundant because it was intended only as another way to bind the Commonwealth and its agencies. However, there is a very valid and logical reason for this language, which, indeed, binds the Commonwealth and its agencies for the acts of policy makers and managers. Under the common law, an employer is not liable for the torts committed by its employees acting outside the scope of their employment. Roethke v. Sanger, 68 S.W.3d 352, 361 (Ky.2001); Osborne v. Payne, 31 S.W.3d 911, 915 (Ky.2000); Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81 (1946). Thus, without the Act’s definition of “employer,” the Commonwealth, itself, would have no liability to an aggrieved employee if it was determined that the policy maker or manager was acting outside the scope of his or her employment. But, under the Act, it is not an issue whether the policy maker or manager is acting outside his or her employment since a violation of the statute necessarily involves the exercise of managerial or policy making authority. Thus, the Commonwealth or its agencies are per se liable for the acts of a policy maker or manager in violation of the statute, and the purpose of the second sentence is not only to ensure that the Commonwealth or its agency will be held liable if them policy makers and managers take actions later to be found a violation of the Act, but also to ensure that the Commonwealth or its agency cannot avoid liability by arguing that a policy maker or manager acted outside the scope of his or her employment.

In interpreting similar definitions of “employer” contained in parallel federal acts and whistleblower acts of other states, “a majority of circuits have found no individual liability.” Title VII (42 U.S.C.A. §§ 2000e et seq.)-, ADEA (29 U.S.C.A. §§ 621 et seq.)-, ADA (U.S.C.A. §§ 12101 et seq.); Lococo v. Barger, 958 F.Supp. 290, 295 (E.D.Ky.1997), aff'd in part, rev’d in part, on other grounds by 234 F.3d 1268 (6th Cir.2000). In fact, “a growing consensus exists among the courts” that “the ‘agent’ language is used to incorporate the theory of respondeat superior, ‘rather than [to] expose either supervisors or co-work*432ers to personal liability in employment discrimination cases.’” Obst v. Microtron, Inc., 588 N.W.2d 550, 553, 554 (Minn.Ct.App.1999), aff'd by 614 N.W.2d 196 (Minn.2000) (citing D.W. v. Radisson Plaza Hotel Rochester, 958 F.Supp. 1368, 1375 (D.Minn.1997); citing Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d 377, 380 (8th Cir.1995)); see Wathen v. General Electric Co., 115 F.3d 400, 406 (6th Cir.1997).

Although in Morris v. Oldham County Fiscal Court, 201 F.3d 784 (6th Cir.2000) the United States Court of Appeals for the Sixth Circuit discredited its previous use of the definition of employer contained in Title VII, Morris concerned a different statute (KRS 344.280) than the one in question here, and has no bearing on the interpretation of KRS 61.101(2). Morris, which rejected reference to Title VII, was concerned with Kentucky’s Civil Rights Act, which expressly provides that “a person, or ... two (2) or more persons” are liable for a violation of this Act, and defines a person to include, inter alia, an individual, a partnership, a corporation, or the Commonwealth, but not an agent. KRS 344.280 (emphasis added). However, in both the Kentucky Whistleblower Act and Title VII, the Commonwealth or the company and any agent or person authorized to act on its behalf are held liable. KRS 61.101(2) (“any person authorized to act on behalf of the Commonwealth ... with respect to formulation of policy or the supervision, in a managerial capacity, of subordinate employees” (emphasis added)); 42 U.S.C.A. § 2000e(b) (“a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such person ” (emphasis added)).

Accordingly, since KRS 61.101(2) and Title VII share references to agents, while the Kentucky Civil Rights Act does not, Title VII’s definition is more analogous to the definition in Kentucky’s Whis-tleblower Act than is the definition contained in Kentucky’s Civil Rights Act. Thus, cases interpreting Title VII’s definition of employer, as well as the definitions contained in the ADEA, 29 U.S.C.A. § 630(b) (“ ‘[Ejmployer’ means a person engaged in an industry affecting commerce ... [and] any agent of such person.”), and the ADA, 42 U.S.C.A. § 12111(5)(A) (“ ‘[EJmployer’ means a person engaged in an industry affecting commerce ... and any agent of such person.”), are helpful and applicable in determining the scope of similar language in Kentucky’s 'Whistle-blower Act because “ ‘all the definitions of employer in these' statutes are worded to cover the “agent” of the employer.’ ” Reno v. Baird, 18 Cal.4th 640, 76 Cal.Rptr.2d 499, 957 P.2d 1333, 1337 (1998) (citing Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 53 Cal.Rptr.2d 741, 748 (1996)).

“Many courts have found that ... the definition of ‘employer’ serves to establish an employer’s respondeat superior liability, rather than personal liability for company employees.”. Shannon Clark Kief, Annotation, Individual Liability of Supervisors, Managers, Officers or Co-employees for Discriminatory Actions Under State Civil Rights Act, 83 A.L.R.5th 1 § 2(a) (2004).

[S]ince 1993, eight federal circuits have either (1) held that the “agent” language does not create individual liability for discrimination, or (2) found that, although individuals can be sued in their official or representative capacity, they may not be sued in their individual capacity and have no personal liability, or (3) interpreted similar language in a state statute as not creating individual liability.

*433Reno, 76 Cal.Rptr.2d 499, 957 P.2d at 1387. In addition, other federal district courts and state courts have reviewed this issue and have determined that their respective whistleblower schemes did not create individual liability for supervisors. United States ex rel. Lamar v. Burke, 894 F.Supp. 1345 (E.D.Mo.1995) (holding that since Title VU’s definition was broader and yet did not impose individual liability on supervisors, the narrower, ordinary and natural meaning of employer for purposes of the False Claims Act did not impose individual liability on employee/supervisors); Palladino v. VNA of Southern New Jersey, Inc., 68 F.Supp.2d 455 (D.N.J.1999) (holding that corporate officers and supervisors were not subject to individual liability under the federal False Claims Act because the Act prohibited discrimination with respect to employment conditions and only an employer could logically grant the relief made available); Reno v. Baird, 18 Cal.4th 640, 76 Cal.Rptr.2d 499, 957 P.2d 1333, 1337 (1998) (citing Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 53 Cal.Rptr.2d 741, 747 (1996)) (rejecting individual liability and stating the agent language was intended to “ ‘ensure that employers will be held hable if their supervisory employees take actions later to be found discriminatory, and that employers cannot avoid liability by arguing that a supervisor failed to follow instructions or deviated from the employer’s policy” ’); Obst v. Microton, Inc., 588 N.W.2d 550 (Minn.Ct.App.1999) (declining to hold individuals liable under Minnesota’s whistleblower statute); Alejandro v. Robstown Independent School District, 131 S.W.3d 663, 668 (Tex.Ct.App.2004) (holding that there is no private right of action against the superintendent or members of the board of trustees in their individual capacities because the “Act creates a private cause of action against the employing ‘state or local governmental entity” ’). For example, in Abbamont v. Piscataway Township Board of Education, 138 N.J. 405, 650 A.2d 958 (1994) the New Jersey Supreme Court rejected individual liability under its Whistle-blower provisions, which contained a definition of employer similar to the definition in Kentucky’s Act. Id. at 963 (Under the New Jersey Act, “an employer can be ‘any person or group of persons acting directly or indirectly on behalf of or in the interest of an employer with the employer’s consent.” ’ (citation omitted)). The Court noted that the employer was the “ ‘party with the power and responsibility ... to take ... remedial action” ’ under the statute and “that to fulfill the remedial purposes of ... [the Act], employers should be strictly hable for equitable relief in the nature of reinstatement, restoration of back pay and the like.” Id. at 964 (citation omitted).

The Kentucky Whistleblower Act, as a whole, is inconsistent with individual liability. It imposes civil liability on the Commonwealth and its agencies for actions of policy makers and managers, while the individual policy makers and managers face only criminal liability for willful violations of the Act. Had the Legislature wanted to impose individual civil liability on policy makers and managers it could have done so. As it stands, however, the criminal liability provision works in connection with respondeat superior liability because it provides a punishment for those who would otherwise escape civil liability. Since the statutory scheme provides no avenue for suits against policy makers and managers in their individual capacity (only criminal prosecutions), punitive damages cannot be collected from individuals and the inclusion of punitive damages as an available remedy does not impose or indicate an intention to hold them individually liable.

*434Accordingly, the language of KRS 61.101(2) does not impose individual civil liability under Kentucky’s Whistleblower Act for reprisal against public employees of the Commonwealth and its political subdivisions.

CONCLUSION

For the foregoing reasons, the Court of Appeals’s decision is affirmed in part, and reversed in part and the Jefferson Circuit Court’s grant of summary judgment in favor of the individual employees Miller, Perry, and Willis, and Drs. Garrison and Martin, is hereby affirmed, and the grant of summary judgment in favor of the Cabinet is hereby reversed and remanded for further proceedings consistent with this opinion.

LAMBERT, C.J.; GRAVES, JOHNSTONE, KELLER, SCOTT and WINTERSHEIMER, JJ., concur; COOPER, J., concurs in part and dissents in part by separate opinion.