In Grzyb v. Evans, 700 S.W.2d 399 (Ky. 1985), the Kentucky Supreme Court further defined the parameters of the tort of wrongful discharge. Unfortunately, in so doing, the Court spawned a frequently misapplied "preemption" doctrine. The Court's analysis and discussion in its recent decision, Hill v. Kentucky Lottery Corp., 2006-SC-000748-DG (April 22, 2010), clarifies and should trim misapplication of the Grzyb "preemption" doctrine.
To review: the Kentucky Supreme Court recognized in Firestone Textile Co. v. Meadows, 666 S.W.2d 730 (Ky 1984), the tort of wrongful discharge, holding that a wrongful discharge claim arose where an employment termination was contrary to public policy as evidenced by a constitutional provision or statute. A year later, in Grzyb, the Court further advised that a wrongful discharge could arise where the discharge was motivated by (1) the employee's failure or refusal to violate the law in the course of employment, or (2) by the employee's exercise of a right conferred by statute.
The plaintiff in Grzyb sought to advance two claims: wrongful discharge and gender discrimination in violation of KRS 344.040. The Court ruled that his wrongful discharge claim "was preempted by the statutory remedies afforded under KRS Chapter 344 for civil rights violations." The rule actually stated in Grzyb was simple: "where the statute both declares the unlawful act and specifies the civil remedies available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute." Nonetheless, this point had been frequently misapplied and the case came before the Court presenting this error, among others, by the Court of Appeals.
The Hills were employees of the Kentucky Lottery Corporation (KLC). They protested the unlawful disability discrimination directed at a coworker. A jury found that KLC pressured Kim Hill to testify falsely at the (former) co-worker's unemployment hearing. The Hills were later fired and advanced two claims directly arising from their discharge: (1) that it violated KRS 344.280, which prohibits the discharge of an employee because the employee opposes an unlawful employment practice such as disability discrimination, and (2) wrongful discharge because their terminations were motivated by Kim Hill's refusal to perjure herself at the unemployment hearing. After two trials where the Hills prevailed, the Court of Appeals ruled that the Hills' wrongful discharge claim was preempted by their KRS 344.280 claim, because "both claims arose out of the same set of facts" and were "predicated on the same conduct" by KLC.
Both the Hills' wrongful discharge and KRS 344.280 claims did arise from the same facts: Kim Hill's testimony at the unemployment hearing, which opposed and protested the discriminatory treatment of a co-worker and in which she refused the employer's demand that she violate the laws prohibiting perjury. But the ruling in Grzyb did not preempt the wrongful discharge claim, the Supreme Court ruled:
Grzybdoes not hold that preemption is triggered when the same set of facts that establishes a common-law wrongful discharge claim also constitutes a claim under KRS Chapter 344.
The Court further explained as follows:
Because the statutes that declare the unlawful act of perjury are not the same statutes that declare and remedy civil rights violations, the Hills' claims under KRS Chapter 344 do not preempt the Hills' claims for wrongful discharge based on the public policy against perjured testimony. To further illustrate the distinct legal nature of the two claims, this Court notes that if KLC had requested Kim Hill to testify falsely regarding her co-worker, Gilmore, and she had refused but also did not affirmatively testify on Gilmore's behalf, any subsequent termination would potentially give rise to a common-law wrongful discharge claim but not an action under KRS Chapter 344. Similarly, had KLC never approached Kim Hill about her testimony in the Gilmore matter and the only conduct at issue was her eventual testimony on his behalf, a KRS Chapter 344 claim could be stated upon termination but there would be no basis for a common law wrongful discharge claim, i.e., no request for perjured testimony.
