RENDERED:
2018-SC-0491-DG
LOUISVILLE & JEFFERSON APPELLANT/ CROSS-APPELLEE
COUNTY METROPOLITAN
SEWER DISTRICT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2017-CA-0879-MR
JEFFERSON CIRCUIT COURT NO. 13-CI-000218
MARK D. HILL APPELLEE / CROSS-APPELLANT
AND
2019-SC-0523-DG
MARK D. HILL APPELLANT/ CROSS-APPELLEE
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2017-CA-0879-MR
JEFFERSON CIRCUIT COURT NO. 13-CI-000218
LOUISVILLE JEFFERSON APPELLEE/ CROSS-APPELLANT
COUNTY METROPOLITAN
SEWER DISTRICT
OPINION OF THE COURT BY JUSTICE VANMETER
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
Louisville & Jefferson County Metropolitan Sewer District (“MSD”)
appeals from the portion of the Court of Appeals’ Opinion reversing the trial
court’s grant of summary judgment in MSD’s favor on Mark Hill’s claim under
the Whistleblower Act, KRS1 § 61.101 et seq. Hill, on cross-appeal, challenges
the Court of Appeals’ affirmation of the trial court’s grant of summary
judgment in MSD’s favor on Hill’s claims under the Kentucky Civil Rights Act
(“KCRA”), KRS § 344.010 et seq. Based on a review of the record and
applicable law, we affirm the Court of Appeals as to the dismissal of Hill’s
KCRA claims but reverse the Court of Appeals’ determination that MSD is
subject to the Whistleblower Act. In short, the trial court correctly granted
summary judgment in favor of MSD on all of Hill’s claims.
I. BACKGROUND
MSD employed Hill for approximately two decades - from 1990 until his
termination in October of 2012. At the time of his termination, Hill’s position
was Administration Services Manager; his job responsibilities included
procuring contractors for facility maintenance on MSD property and approving
contractor invoices submitted to MSD for payment.
In 2011, the Kentucky State Auditor of Public Accounts (“APA”) began
auditing MSD and, as part of its audit, interviewed Hill twice. The auditor’s
final report found that Hill had violated numerous MSD policies, including
purchasing IT equipment without approval, favoritism in the hiring of private
1 Kentucky Revised Statutes.
2
vendors, use of MSD technological equipment for private purposes, and
improper payment for services. Thereafter, MSD initiated an independent
investigation concerning the allegations raised in the auditor’s report, and MSD
suspended Hill with pay during the course of this investigation. MSD’s
attorney who led the investigation also interviewed Hill and the results of the
investigation ultimately corroborated the APA’s findings: Hill had violated
procurement and purchasing regulations, engaged vendors who were not
properly certified, purchased a laptop without IT department approval, and
inappropriately approved payments for services on two occasions.
During his discussions with MSD’s attorney, Hill alleged he was being
made a scapegoat for one of the alleged improper payments. Hill then hired an
attorney who sent a letter to MSD officials seeking whistleblower protection for
Hill. The letter stated that during the interview, Hill had made good faith
reports of waste, fraud, mismanagement and violations of law that occurred at
MSD. Following the audit and MSD’s independent investigation, MSD
terminated Hill’s employment for violating its policies.
Thereafter, Hill filed a complaint against MSD alleging violation of
Kentucky’s Whistleblower Act and racial discrimination2 in violation of the
KCRA. After conducting discovery, MSD moved for summary judgment,
arguing that it was not an “employer” as that word is defined in the
Whistleblower Act and, regarding the KCRA claims, Hill had not met his
2 Hill is African American.
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burden of production. Following a hearing, the trial court denied MSD’s
motion for summary judgment. With respect to Hill’s Whistleblower claim, the
trial court initially found that MSD met the definition of “employer” under the
Act since it was a political subdivision of the Commonwealth. The trial court
further allowed Hill’s KCRA claims to proceed. Hill subsequently filed amended
complaints, alleging retaliation and presenting a “mixed motive” theory for his
racial discrimination claim.
MSD again moved for summary judgment on Hill’s Whistleblower Act
claim, urging the trial court to reconsider its prior decision in light of this
Court’s recent holding in Coppage Constr. Co. v. Sanitation Dist. No. 1, 459
S.W.3d 855 (Ky. 2015), which MSD argued reaffirmed its position that it was
not an “employer” within the meaning of the Act. Based on the Coppage
holding, the trial court granted partial summary judgment in MSD’s favor,
finding that the analyses under sovereign immunity and the Whistleblower Act
were the same and because the Coppage decision made clear that MSD would
not be entitled to sovereign immunity, MSD was not to be considered an
“employer” under the Whistleblower Act. Later, the trial court granted MSD’s
motion for partial summary judgment on Hill’s remaining KCRA claims. The
trial court found that Hill had failed to present any affirmative evidence in
support of his claim that he was terminated because of his race or in
retaliation. Instead, the trial court found that the only affirmative evidence in
the record supported MSD’s stance that Hill had been terminated due to
violations revealed by the audit.
4
On appeal, the Court of Appeals affirmed the trial court’s grant of
summary judgment on Hill’s KCRA claims but reversed the trial court’s grant of
summary judgment on his Whistleblower claim. MSD moved this Court for
discretionary review, which was granted. Hill’s cross-motion for discretionary
review was also granted. After thorough review of the record and applicable
law, we affirm the Court of Appeals’ decision upholding the trial court’s
dismissal of Hill’s KCRA claims but reverse the Court of Appeals’ decision on
the Whistleblower claim as we believe the trial court properly granted summary
judgment in favor of MSD on that claim as well.
II. STANDARD OF REVIEW
In determining whether the trial court erred in granting summary
judgment in favor of MSD “we must consider whether the trial court correctly
found that ‘there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’” Cmty. Fin. Servs.
Bank v. Stamper, 586 S.W.3d 737, 741 (Ky. 2019) (quoting CR3 56.03).
Further, “[w]e review de novo the trial court’s grant or denial of a motion for
summary judgment.” Id. (citing Caniff v.. CSX Transp., Inc., 438 S.W.3d 368,
372 (Ky. 2014) (citation omitted)).
III. ANALYSIS
MSD contends that the Court of Appeals erred as a matter of law in
reversing the trial court’s finding that MSD did not qualify as an “employer”
3 Kentucky Rules of Civil Procedure.
5
under the Whistleblower Act. Hill argues that the Court of Appeals erred in
affirming the trial court’s finding that he alleged insufficient facts to survive
summary judgment on his KCRA claims. We will address each argument in
turn.
A. Whistleblower Act Claim
Kentucky’s “whistleblower” statute, KRS 61.102(1), prohibits retaliation
by an “employer” against a public employee
[W]ho in good faith reports, discloses, divulges . . . any facts or
information relative to actual or suspected mismanagement, waste,
fraud, abuse of authority or otherwise brings to the attention of . . .
[an] appropriate body or authority, 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.
The Whistleblower Act defines an “employer” as “the Commonwealth of
Kentucky, or any of its political subdivisions].]” KRS 61.101(2) (emphasis
added). Thus, “the whistleblower protections and remedies apply to employees
of state government and any of its political subdivisions. The purpose
underlying the statute is ‘to discourage wrongdoing in government, and protect
those who make [such wrongdoing] public.’” Pennyrile Allied Cmty. Servs., Inc.
v. Rogers, 459 S.W.3d 339, 340-41 (Ky. 2015) (quoting Workforce Dev. Cabinet
v. Gaines, 276 S.W.3d 789, 792 (Ky. 2008)).
For Hill’s Whistleblower Act claim to survive summary judgment, MSD, a
joint metropolitan sewer district, must qualify as an “employer” under the Act.
MSD’s enabling statute, KRS 76.010, provides that a joint metropolitan sewer
district “shall be a public body corporate, and political subdivision.” MSD
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concedes that it is a political subdivision but argues that it is not a political
subdivision of the Commonwealth so as to bring it within the ambit of the
Whistleblower Act’s definition of “employer.” MSD points out that the Act does
not define “employer” as any and all political subdivisions and KRS 76.010 does
not include the phrase “of the Commonwealth.”
The Court of Appeals concluded that because KRS 76.010 classified joint
metropolitan sewer districts as “political subdivision[s],” the intent of the
legislature was to subject those districts to the Whistleblower Act, without
limitation. In so ruling, the Court of Appeals relied on Northern Kentucky Area
Planning Comm’n v. Cloyd, in which the court, when faced with the issue of
whether a planning commission was considered an “employer” under the
Whistleblower Act, held that under the plain language of KRS 147.660(1),
“‘political subdivision’ presumes a political subdivision ‘of the Commonwealth’”
and thus the legislative intent was to subject those commissions to the
Whistleblower Act. 332 S.W.3d 91, 94 (Ky. App. 2010). Relying on Cloyd, the
Court of Appeals declared that any “political subdivision” was presumed to be a
political subdivision of the Commonwealth as a matter of law for purposes of
the definition of “employer” as used in the Whistleblower Act.
Central to the Court of Appeals’ analysis was its finding that MSD was
not a “gray-area entity” with respect to its status as an “employer.” In Wilson v.
Central City, 372 S.W.3d 863, 866 (Ky. 2012), rendered two years after Cloyd,
this Court was tasked with determining whether a city was a “political
subdivision” of the Commonwealth for purposes of being an “employer” under
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the Whistleblower Act. Ultimately, the Wilson court held that it was not, but
discussed that classification of some entities as an “employer” as that term is
used in the Act is not so easy as “the line between a city, a municipality, and a
municipal corporation is not always clear.” Id. Because KRS contains various
conjunctive and disjunctive uses of the “political subdivision” nomenclature in
relation to cities, municipalities, and municipal organizations, some entities fall
within a “gray area” in terms of status as a “political subdivision.” Id. at 866-
67. The Court concluded that “[w] het her an entity falling within that gray area
is a ‘political subdivision’ under the Whistleblower Act is to be resolved in the
same way that we resolve whether an entity is protected from suit by sovereign
immunity” using Comair’s4 standards. Id. at 869 n.l 1.
Since the text of KRS 76.010 does not make clear whether a metropolitan
sewer district such as MSD is a “political subdivision of the Commonwealth”
the question is to be resolved by utilizing the Comair sovereign immunity test.
If MSD is not entitled to sovereign immunity, then it is not to be considered an
“employer” under the Whistleblower Act. Recently, this Court in Coppage
solidified that under the Comair test, sewer districts are not entitled to
sovereign immunity. 459 S.W.3d at 863 (reaffirming the holding in Calvert
Invs., Inc. v. Louisville & Jefferson Cty. Metro. Sewer Dist., 805 S.W.2d 133 (Ky.
1991) that a metropolitan sewer district was not sovereignly immune).
Coppage involved the assertion of sovereign immunity by Sanitation District
4 Comair, Inc. v. Lexington-Fayette Urban Cty. Airport Corp., 295 S.W.3d 91 (Ky.
2009).
8
No. 1 (“SD1”), a KRS Chapter 220 created public sewer utility that provides
services in three Northern Kentucky counties. In its opinion, the Coppage
court confirmed the two-prong Comair analysis:
First, the courts must look to the origin of the public entity,
specifically: was [the entity in question] created by the state or a
county [which are entitled to immunity], or a city [which is not
entitled to immunity except in the legislative and judicial realms]?
The second and more important inquiry is whether the entity
exercises a function integral to state government.
Id. at 859 (internal quotations and citations omitted).
With respect to the first prong—the origins of SD1—the Court found that
sanitation districts are not created by the power of the sovereign and do not
operate as an arm or alter ego of the counties they serve. Id. at 860.
Specifically, the Court found that SD1 was not created by the three counties in
which it operated and under KRS Chapter 220 (or its predecessor) “no county
can impose a sanitation district upon its citizens[.]” Id. at 861. Rather, “SD1,
a special district, [was] created by the free consent of the persons composing it,
through a petition process and [is] managed by a board of directors that
exercises all the powers and manage [s] and controls all the affairs and property
of the district[.]” Id. at 862. Accordingly, the Court held that SD1 failed to
satisfy Comair’s first prong. Id.
As to the second prong - the “functions” prong - two elements are to be
considered: “whether the entity’s function is ‘governmental’ as opposed to
proprietary, and whether it is a matter of ‘statewide’ concern.” Id. The
Coppage court found that like other sanitation districts, SD1 performed a local,
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proprietary function. Id. Specifically, the Court noted that “[s]ewage disposal
and storm water management systems are not a traditional and necessary
state function such as those performed by the state police, our public schools,
the corrections system, and public highways and airways.” Id. at 864.
“Instead, the sewage disposal and storm water drainage services SD1 offers are
designed to meet the needs of a discrete, localized geographic region.” Id.
Because “SD1 was not created by the state or county and it does not carry out
a function integral to state government” the Court determined that it was not
entitled to sovereign immunity. Id.
Similarly, here, MSD is not entitled to sovereign immunity. With respect
to the first prong of Comair, MSD was originally created by the City of Louisville
(not Jefferson County) and retains the same characteristics of a special district
such as SD 1: fiscal separation and freedom from constitutional limitations on
indebtedness associated with tax collecting entities. Furthermore, MSD’s
customers are “ratepayers” not taxpayers: “[c]harges for sewer service are not
taxes.” Veail v. Louisville & Jefferson Cty. Metro. Sewer Dist., 303 Ky. 248, 256,
197 S.W.2d 413, 418 (1946). Most importantly, like SD1, MSD does not serve
a “statewide” need but rather serves the “needs of a discrete, localized
geographic region.” Coppage, 459 S.W.3d at 864. Because MSD does not pass
the Comair test, it is not entitled to sovereign immunity and therefore is not an
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“employer” for purposes of the Whistleblower Act. Wilson, 317 S.W.3d at 868-
69.5
In sum, the Court of Appeals erred by reversing the trial court’s grant of
summary judgment to MSD on Hill’s Whistleblower claim. Unless and until the
General Assembly unambiguously clarifies its intent to broaden the term
“employer” to include metropolitan sewer districts within the protection
afforded by the Whistleblower Act, as the judicial branch of government, we are
constrained to the statute’s present parameters.6 See Benningfield ex rel.
Benningfield v. Zinsmeister, 367 S.W.3d 561, 573 (Ky. 2012) (Schroder, J.,
dissenting but concurring in result) (“[I]t is the role of the General Assembly to
debate and decide—through legislation—the public policy issues)]”); Caneyville
5 Admittedly, the merger of Louisville and Jefferson County has impacted some
Louisville-Jefferson County entities’ immunity analysis. But even if we were to
conclude that MSD is now an agency of the Metro Government, it still fails the second
part of the Comair test.
6 As the Wilson court noted, “had the legislature intended the Whistleblower Act
to apply broadly to municipalities, it would have explicitly included them in their
definition of ‘employer.”’ 372 S.W.3d at 867. See, e.g., Lincoln Cty. Fiscal Court v.
Dep’t of Pub. Advocacy, 794 S.W.2d 162, 163 (Ky. 1990) (“Where the words of the
statute are clear and unambiguous and express the legislative intent, there is no room
for construction or interpretation and the statute must be given its effect as writtenf]”)
(citation omitted). In addition to considering the statute’s plain language, the Wilson
court looked to the most recent legislative history of the Whistleblower Act, which
indicated that the General Assembly had declined to enact broad-based ethics reform
which would have subjected local government entities to a state-level mandate. 372
S.W.3d at 867-68. Such proposed reform was introduced as S.B. 335 in the 1994
Regular Session of the General Assembly. By not passing that bill, the legislature
declined the opportunity to create a new set of laws which would have applied the
substantive portions of the Whistleblower Act to municipalities. Instead, the
legislature in that same session passed a law which would become KRS 65.003,
requiring cities to enact their own ethics code. See, e.g., KRS 65A.070. As this Court
in Wilson noted, “(t]his strongly suggests that the General Assembly’s intent was to
exclude cities from the Whistleblower Act’s prohibitions.” 372 S.W.3d at 868.
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Vol. Fire Dept. v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 807 (Ky.
2009) (“Shaping public policy is the exclusive domain of the General
Assembly!]”); Wilson v. Ky. Transp. Cabinet, 884 S.W.2d 641, 646 (Ky. 1994)
(“The public policy of the Commonwealth is determined by the General
Assembly and not by the courts[]”).
B. KCRA Claims
Under the KCRA, it is unlawful for an employer to “discharge any
individual, or otherwise discriminate against an individual with respect to
compensation, terms, conditions, or privileges of employment, because of the
individual’s race.” KRS 344.040(l)(a). As the KCRA was enacted in 1966 to
implement the Federal Civil Rights Act of 1964 (“FCRA”), its provisions are
virtually identical to the FCRA and thus Kentucky courts consider the way the
FCRA has been interpreted when analyzing KCRA claims. Jefferson Cty. v.
Zaring, 91 S.W.3d 583, 586 (Ky. 2002) (citations omitted).
Hill’s KCRA claims alleged racial discrimination and retaliation. As an
initial matter, we must address the standard to employ in analyzing Hill’s race
discrimination claim. MSD argues that Kentucky law does not recognize a
“mixed motive” theory, but nevertheless agrees with the trial court’s ultimate
decision to dismiss Hill’s discrimination claim.
While Kentucky law does not expressly recognize a “mixed motive”
theory, federal law does:
[A]n unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or
national origin was a motivating factor for any employment
practice, even though other factors also motivated the practice.
12
42 U.S.C.7 § 2000e-2(m) (emphasis added).
Thus, under federal law, a “mixed motive” case is one in which the
plaintiff alleges that “both legitimate and illegitimate reasons motivated the
decision[.]” Wright v. Murray Guard, Inc., 455 F.3d 702, 711 (6th Cir. 2006)
(citation omitted). Once the plaintiff makes a showing that an “unlawful
employment practice . . . was a motivating factor,” 42 U.S.C. § 2000e-2(m), “the
burden of proof shifts to the defendant to avoid liability by showing that the
same employment decision would have been made ‘in the absence of the
impermissible motivating factor.”’ First Prop. Mgmt. Corp. v. Zarebidaki, 867
S.W.2d 185, 188 (Ky. 1993) (quoting 42 U.S.C. § 2000e-5(g)(2)(B)).
Kentucky courts have allowed a version of “mixed motive” causes of
action where the party alleging discrimination makes an initial showing that
the discriminatory motive was “a contributing and essential factor” of the
employer’s adverse decision. See, e.g., Meyers v. Chapman Printing Co., 840
S.W.2d 814, 823 (Ky. 1992); Walker v. Commonwealth, 503 S.W.3d 165, 173
(Ky. App. 2016); Mendez v. Univ. of Kentucky Bd. ofTrs., 357 S.W.3d 534, 541
(Ky. App. 2011). Using that standard, the trial court found that Hill failed to
make the requisite showing for his discrimination claim to survive MSD’s
motion for summary judgment. While Hill made vague assertions of a history
of racial discrimination at MSD, he did not offer proof that he reported any
discrimination, made formal or informal complaints, or even alleged more
7 United States Code.
13
specifically any discrimination he experienced. Further, his claim that white
MSD employees who committed minor violations, and violations more major
than his, were not terminated is wholly unsupported by the record. In its order
dismissing Hill’s KCRA claims, the trial court noted that Hill had roughly four
years since filing his lawsuit to engage in discovery and gather evidence to
support his claims. He not only failed to provide any proof of his claims, but
the court twice entered Notices to Dismiss for Lack of Prosecution.
The trial court found that the only affirmative evidence in the record
supported MSD’s position that it terminated Hill based on the violations
revealed by the audit. The audit report set forth numerous violations
committed by Hill including unauthorized purchases, favoritism in the hiring of
private vendors, use of MSD equipment for private purposes, and improperly
paid invoices. MSD’s independent investigation into Hill’s violations confirmed
the findings of the audit. Based on its own investigation and the findings
revealed by the audit, MSD sufficiently demonstrated that it had legitimate,
nondiscriminatory reasons for terminating Hill’s employment, without
consideration of his race. Therefore, the trial court properly concluded that
Hill’s “mixed motive” claim failed as a matter of law.
Regarding Hill’s retaliation claim, he argues that several individuals at
MSD, and MSD as a whole, conspired to terminate his employment for his
having reported racial discrimination to MSD. The KCRA makes it unlawful for
a person, or two or more people, to conspire:
(1) To retaliate or discriminate in any manner against a person
because he has opposed a practice declared unlawful by [KRS
14
Chapter 344], or because he has made a charge, filed a complaint,
testified, assisted, or participated in any manner in any
investigation, proceeding, or hearing under [KRS Chapter 344.]
KRS 344.280.
A prima facie retaliation case under KRS 344.280 requires the plaintiff to
have engaged in a “protected activity” and to show a causal nexus between the
activity and the employer’s adverse employment action. Charalambakis v.
Asbury Univ., 488 S.W.3d 568, 583 (Ky. 2016). Here, the record reflects that
Hill failed to meet this burden of production: he never made a complaint
concerning race discrimination or harassment to anyone at MSD, he did not
complain to the auditors of any specific racial discrimination at MSD, and he
offered no evidence that MSD was aware that he allegedly reported racial
discrimination to the auditors. Because Hill was unable to show that he
engaged in a protected activity and was unable to make a prima facie case of
retaliation, the trial court properly granted summary judgment to MSD on this
claim.
IV. CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals as to the
dismissal of Hill’s KCRA claims but reverse the Court of Appeals’ determination
that MSD is subject to the Whistleblower Act. On remand, the trial court is
directed to enter final judgment in favor of MSD on all of Hill’s claims.
Minton, C.J.; Hughes, Keller, Nickell, VanMeter and Wright, JJ., sitting.
Minton, C.J.; Hughes, Keller, Nickell and Wright, JJ., concur. Lambert, J., not
sitting.
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COUNSEL FOR APPELLANT/CROSS-APPELLEE:
Edward L. Lasley
Bradley Robert Palmer
Conliffe, Sandmann & Sullivan, PLLC
COUNSEL FOR APPELLEE/CROSS-APPELLANT:
Garry Richard Adams, Jr.
Andrew Thomas Lay
Abigail Victoria Lewis
Adams Landenwich Walton, PLLC
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