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.
KRS 344.270 provides as follows:
The provisions of KRS 13B.140 notwithstanding, commission 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 under KRS 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 under KRS 344.450 shall exclude any other administrative action or proceeding brought in aecor-*574dance with KRS Chapter 13B by the same person based on the same grievance.
KRS 344.450 provides as follows:
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 plaintiffs attorney of record and any other remedies contained in this chapter.
A remedy selected under these statutes becomes the exclusive remedy.4
Conversely, KRS 388.121 fails to limit redress in the circuit court following the determination by the Commissioner of the Kentucky Department of Workplace Standards. I am convinced that if the Legislature had chosen to enact an exclusive remedy for a work safety violation, it would clearly have done so as it did for civil rights violations.
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 KRS 344.270 and 344.450.
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 exception 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.
. Op. at 571.
. Grzyb, 700 S.W.2d at 401.
. See Brown v. Diversified Decorative Plastics, 103 S.W.3d 108, 113 (Ky.App.2003).
. Hines, 813 F.Supp. at 552.
. 117 N.M. 41, 868 P.2d 1266, 1274 (App.1993).
. Gutierrez, 868 P.2d at 1272-75.
. See also Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1093-94 (9th Cir.1990); Lepore v. National Tool & Mfg. Co., 224 N.J.Super. 463, 540 A.2d 1296, 1298-99 (App.Div.1988); and Reed v. Municipality of Anchorage, 782 P.2d 1155 (Alaska 1989).