Cabinet for Families & Children v. Cummings

Opinion by

Justice COOPER,

Concurring in Part and Dissenting in Part.

I concur in the majority opinion’s conclusion that Dr. Cummings was an “employee” of the Cabinet for Families and Children as that term is defined in KRS 61.101(1). However, I dissent from the majority opinion’s conclusion that individual policy-makers and managerial supervisors of so-called “whistleblowers” are not included within the definition of “employer” as that term is defined in KRS 61.101(2). The statutory language pertinent to this issue is as follows:

KRS 61.101.
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(2) “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;
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KRS 61.102.
(1) No employer shall subject to reprisal ... any employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of ... any ... 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 ... or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety.
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KRS 61.103.
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(2) Notwithstanding the administrative remedies granted by KRS Chapters 16, 18A, 78, 90, 95, 156, and other chapters of the Kentucky Revised Statutes, employees alleging a violation of KRS 61.102(1) or (2) may bring a civil action for appropriate injunc-tive relief or punitive damages, or both, within ninety (90) days after the occurrence of the alleged violation. The action.may be filed in the Circuit Court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed resides or has his principal place of business.
*435KRS 61.990.
(3) Any person who willfully violates the provisions of KRS 61.102(1) shall be guilty of a Class A misdemeanor.

(Emphasis added.)

Nothing could be more obvious from the plain language of this statutory scheme than the intent of the General Assembly to make its provisions applicable not only to the Commonwealth and its political subdivisions but also to “person(s)” occupying policy-making or supervisory positions with respect to the offended employee. The majority opinion concludes, however, that the “any person” language of KRS 61.101(2) only creates vicarious liability in the Commonwealth for the actions of its policy-making or supervisory employees. But if so, why establish as a venue for the civil action authorized by KRS 61.103(2) “the county where the person against whom the civil complaint is filed resides ”? The majority opinion concedes that KRS 61.990(3) imposes criminal liability on “individuals” who willfully violate the act. Ante, at -, - (slip op. at 10, 15). Yet, only “employers” can violate KRS 61.102(1), and the majority holds that the only “employers” under the Act are the Commonwealth and its political subdivisions. Of course, the Commonwealth and its political subdivisions are not subject to criminal penalties — only “persons” and “corporations” can be convicted of Class A misdemeanors. KRS 532.030(3), .090(1); KRS 534.040(2), ,050(l)(b).

“It is a general rule of law that statutes which are remedial in nature are entitled to a liberal construction in favor of the remedy provided by law, or in favor of those entitled to the benefits of the statute.” Ky. Ins. Guar. Ass’n v. Jeffers ex rel. Jeffers, 13 S.W.3d 606, 611 (Ky.2000) (quoting 73 Am.Jur.2d Statutes, § 278 (1974)). Whistleblower acts are remedial in nature. See, e.g., Martin County v. Edenfield, 609 So.2d 27, 29 (Fla.1992) (“As a remedial act, the [whistleblower] statute should be construed liberally in favor of granting access to the remedy.”); Chandler v. Dowell Schlumberger Inc., 456 Mich. 395, 572 N.W.2d 210, 215 (1998) (“The WPA [Whistleblower Protection Act], as a remedial statute, is to be liberally construed to favor the persons the Legislature intended to benefit.”); Scott v. Godwin, 147 S.W.3d 609, 621 (Tex.Ct.App.2004) (“Because the Whistleblower Act is remedial in nature, it should be liberally construed to effect its purpose.”). Furthermore:

“We have 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.”

Crenshaw v. Weinberg, 805 S.W.2d 129, 133 (Ky.1991) (quoting Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky.1984)). The majority opinion concludes that it would be absurd and wholly unreasonable to interpret this Act as holding a wrongdoer responsible for his/her own wrongdoing. I conclude that it is absurd and wholly unreasonable not to do so.

[O]ne can increase the likelihood of individual deterrence by increasing the scope of possible personal liability in whistleblower actions. In addition, the law should mandate that the potential fine may not be paid by the employing governmental body but must be paid by the individual responsible.

Valerie P. Kirk & Ann Clarke Snell, The Texas Whistleblower Act: Time for a Change, 26 Tex. Tech L.Rev. 75, 94-95 (1995). Cf. Degener v. Hall Contracting Corp., 27 S.W.3d 775, 781-82 (Ky.2000) (recognizing employer’s right of indemnity against employee for damages payable to third party because of employee’s violation of Kentucky Civil Rights Act). Our statu*436tory scheme, unlike Texas’s, accomplishes both of those goals.

The majority opinion primarily relies on cases interpreting the definitions of “employer” in Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”). Title VII defines employer as “a person ... who has fifteen or more employees ... and any agent of such a person.” 42 U.S.C. § 2000e(b). The ADA defines employer as “a person ... who has 15 or more employees ... and any agent of such person.” 42 U.S.C. § 12111(5)(A). The ADEA defines employer as “a person ... who has twenty or more employees” including “any agent of such a person.” 29 U.S.C. § 630(b). As stated in the majority opinion, most courts that have construed these statutes have construed the “any agent” language as creating only vicarious liability, ie., agency liability, in the employers but not individual liability in the agent. E.g., Wathen v. Gen. Elec. Co., 115 F.3d 400, 405 (6th Cir.1997) (Title VII); Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir.1995) (Title VII); U.S. E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1281-82 (7th Cir.1995) (ADA); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir.1994) (ADEA); Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 (9th Cir.1993) (Title VII).

Obviously, the phrase “any agent” is substantially broader in scope than “any person authorized to act ... with respect to formulation of policy or the supervision, in a managerial capacity, of subordinate employees.” KRS 61.101(2). In addition to emphasizing the “any agent” phrase, the courts interpreting Title VII, the ADA, and the ADEA, have emphasized the fact that the statutes limit liability to employers with a specified minimum number of employees “in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims,” Miller, 991 F.2d at 587; and it is “ ‘inconceivable’ that a Congress concerned with protecting small employers would simultaneously allow civil liability to run against individual employees.” Tomka, 66 F.3d at 1314. Additionally, the legislative history indicates that in the floor debates over Title VII, no mention was made of agent liability, further “implying that Congress did not contemplate agent liability under Title VII.” Id. Finally, before Congress enacted the Civil Rights Act of 1991, 42 U.S.C. § 1981a, the remedies for a successful Title VII claim were limited to reinstatement and back pay— remedies available only from an employer. Id. The Civil Rights Act of 1991 added compensatory and punitive damages for intentional discrimination under Title VII, remedies available from individuals as well. However, Congress calibrated the amounts of damages recoverable to the size of the employer, beginning with employers having at least fifteen employees. 42 U.S.C. § 1981a(b)(3). “[I]f Congress had envisioned individual liability ... 'it would have included individuals in this litany of limitations and would have discontinued the exemption for small employers ....” Miller, 991 F.2d at 588 n. 2.

In Wathen v. General Electric Co., the United States Court of Appeals for the Sixth Circuit noted that Kentucky courts look to the federal counterpart when construing the Kentucky Civil Rights Act, 115 F.3d at 403 n. 5, thus construed KRS 344.030(2) the same as it construed Title VII, ie., as creating no individual liability. Id. at 405. Similar to Title VII, the ADA, and the ADEA, KRS 344.030(2) defines “employer” as “a person who has eight (8) or more employees ... and an agent of such a person .... ” However, none of the considerations applicable to Title VII, the ADA, the ADEA, and KRS 344.030(2) ap*437ply to the statutory scheme of the Whistle-blower Act. The word “agent” does not appear in KRS 61.101(2), which limits individual liability to policy-making, supervisory, and managerial employees — those in a position to retaliate against a whistleblower. Nor is the Whistleblower Act limited to employers with a specified minimum number of employees. There is no “calibration” of the amount of damages according to the number of employees. Although only an employer can reinstate a “whistle-blower,” an individual obviously can pay punitive damages. Finally, there is no legislative history indicating a legislative intent that the Act means something other than what it clearly says.

Significantly, since deciding Wathen, the Sixth Circuit has held that KRS 344.280, the statute creating a cause of action for retaliation under the Kentucky Civil Rights Act, does create individual liability for supervisors and other employees. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 793-94 (6th Cir.2000). That statute provides that “[i]t shall be an unlawful practice for a person ... [t]o retábate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this chapter .... ” (Emphasis added.) Like KRS 344.280, the Whistleblower Act protects employees against retaliation for lawful conduct. The only difference between KRS 344.280 and KRS 61.101(2) is that the former refers to a “person” and the latter refers to a “person” who is a policy-maker, supervisor, or manager.

The other authorities cited in the majority opinion are also easily distinguished. Obst v. Microtron, Inc., 588 N.W.2d 550 (Minn.Ct.App.1999), aff'd, 614 N.W.2d 196 (Minn.2000), construed a statute, Minn. Stat. § 181.931, subd. 3, that defined “employer” as “any person having one or more employees in Minnesota and includes the state and any political subdivision of the state,” and contained no reference to either agents or persons acting on behalf of the employer. 588 N.W.2d at 553-54. Reno v. Baird, 18 Cal.4th 640, 76 Cal.Rptr.2d 499, 957 P.2d 1333 (1998), construed a statute, Cal. GovtCode § 12926, subd. (d), that, similar to Title VII, the ADA, and the ADEA, defined an “employer” as “any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly .... ” 76 Cal.Rptr.2d 499, 957 P.2d at 1335. United States ex rel. Lamar v. Burke, 894 F.Supp. 1345 (E.D.Mo.1995), construed 31 U.S.C. §§ 3729-3733, the False Claims Act, which contains no definition of “employer.” “The statute in this case does not define ‘employer.’ Therefore, this Court should construe ‘employer’ in accord with its ordinary and natural meaning.” Id. at 1347. The court proceeded to consult various dictionaries. Alejandro v. Robstown Independent School District, 131 S.W.3d 663 (Tex.Ct.App.2004), construed a statute, Tex. Gov’t Code Ann. § 554.008(e), that specifically limited a supervisor’s liability to a civil penalty not to exceed $15,000.00, payable to the state treasury. 131 S.W.3d at 668-69.

Abbamont v. Piscataway Township Board of Education, 138 N.J. 405, 650 A.2d 958 (1994), construed New Jersey’s whistleblower act, the Conscientious Employee Protection Act (CEPA), which defined “employer” as “any individual, partnership, association, corporation or 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 .... ” N.J. Stat. Ann. 34:19-2(a) (emphasis added). However, the whistleblower in Abbamont did not sue his supervisor and the court did not address whether a supervisor could be held individually hable under the definition of “employer.” It only decided that the Board of Education *438was vicariously liable for the retaliatory actions taken by the supervisor. Id. at 965-66. In Palladino ex rel. United States v. VNA of Southern New Jersey, Inc. 68 F.Supp.2d 455 (D.N.J.,1999), a federal district court construing that same statute held that it created individual liability for supervisory employees acting with the authorization of the employer. Id. at 474. Similarly, in Alaska Housing Finance Corp. v. Salvucci, 950 P.2d 1116 (Alaska 1997), the Supreme Court of Alaska interpreted the following whistleblower statute as authorizing actions against individuals as well as employers:

Sec. 39.90.120 Relief and penalties.
(a) A person who alleges a violation of AS 89.90.100 may bring a civil action and the court may grant appropriate relief, including punitive damages.
(b) A person who violates or attempts to violate AS 39.90.100 is also liable for a civil fine of not more than $10,000. The attorney general may enforce this subsection.
(c) A person who attempts to prevent another person from making a report or participating in a matter under AS 39.90.100(a) with intent to impede or prevent a public inquiry on the matter is liable for a civil fine of not more than $10,000.

Alaska Stat. § 39.90.120. The statutory scheme did not define “person” and did not define “employer” as including a person. Id. § 39.90.140(2). The court reasoned as follows:

Subsection .120(a) authorizes a person who alleges a violation of section .100 to bring a civil action, and it authorizes the court in which the action is brought to “grant appropriate relief, including punitive damages.” Subsection (a) does not, however, specify the defendants against whom the civil action may be brought. It is logical to suppose that any person or entity which is capable of violating or attempting to violate section .100 may be a defendant under subsection (a) of section .120. Subsection .120(b) recognizes that individuals — that is, individual government employees — are capable of violating or attempting to violate section .100.[FN9] It follows that the defendants who may be sued under subsection .120(a) include individuals as well as public employers. Further, this conclusion is implied by the text of subsection .120(b), which states that “a person who violates ... [section .100] is also liable for a civil fine .... ” The word “also” ’ implies that the person described is also hable under subsection .120(a).
FN9. To conclude otherwise, one would have to read subsection (b) as authorizing the attorney general of the state to sue the state for a civil fine which would be paid by the state to the state. Such a reading would be an absurdity. -

Salvucci, 950 P.2d at 1124-25.

Our Whistleblower Act is much more explicit with respect to individual liability than is either the New Jersey statute construed in Palladino or the Alaska statute construed in Salvucci. I would give our Act the same liberal construction required of all remedial statutes “in favor of the remedy provided by law, or in favor of those entitled to the benefits of the statute,” Ky. Ins. Guar. Ass’n, 13 S.W.3d at 611, and hold that the Act means what it says — policy-making, supervisory, and managerial employees who violate its provisions are subject to civil actions for punitive damages. Accordingly, I respectfully dissent.