The employer, Zwicker & Associates, a collection law firm, had been sued for sex discrimination by a number of ex-employees. The employer's defense counsel interviewed a number of witnesses including Clinton Burton. Burton was interviewed "several times" and in each interview "made statements that supported the former employees." After the interviews, various supervisors expressed dissatisfaction to Burton with his statements to the employer's lawyers, although non-"came right out and directly told [Burton] to lie to the outside lawyers." Burton was subsequently fired and filed a wrongful discharge claim asserting that "one of the reasons Zwicker fired him was because he refused to perjure himself in the discrimination case." This was the focus of the Sixth Circuit's recent decision in Burton v. Zwicker & Associates, No 13-6406 (August 22, 2014).
Burton prevailed at trial and was awarded $350,000 in damages and $600,000 in punitive damages (later reduced to $350,000).
Kentucky wrongful discharge law is clear and well-established:
An employer cannot discharge an employee for a reason "contrary to a fundamental and well-defined public policy as evidenced by existing law." Well-defined public policy includes the Commonwealth's criminal laws. This means that an employer cannot fire an employee because the employee refuses to commit perjury, which is a crime in Kentucky.
The court cited the following testimony from Burton as supporting the jury's verdict in his favor:
Q: Did you support the company's position and [the sex discrimination lawsuit], or did you give [Zwicker's lawyers] some information that supported the employees?
A: Oh, I gave them information that supported the employees.
...
Q: And how did the company react to your information you were providing to the company's lawyers?
A: They were not happy about it and they began to make comments, explain their displeasure for me taking the support of these employees.
Q: All right. Now, you say "they." How about Jamie Walker; did she say anything to you about it?
A: Absolutely.
Q: What did she say?
A: In one exchange, Jamie Walker was actually in there with the attorneys, and she was finishing or they were talking. And so it was my turn, and they were calling me in, and Jamie Walker stated to me, she said, "Clinton, you can tell the truth. You won't lose your job."
Q: Were you telling the truth in the first place?
A: Absolutely.
Q: Was another individual you spoke to about this or who spoke to you was John Twite?
A: Correct.
...
A: ... And he stated to me, "hey Clinton, you need to make better choices. You need to make better decisions."
Q: Make better choices. And this was after you had met with lawyers?
A: Three to five times, being badgered, berated.
...
Q: And did [Mike Koziol] speak with you about your – the information you were giving to the lawyers?
A: He did.
Q: What did he say?
A: He said that I made poor judgment and that my job was in jeopardy.
The Sixth Circuit rejected Zwicker's argument that "an employer must make an affirmative request that the employee commit a crime, explaining in an obvious point of legal realism:
... a request is still affirmative if both the employer and employee understand that the employer is asking the employee to commit a crime even if the employer asked in a roundabout way. It should not be surprising that employer would not come right out and command an employee to "commit perjury," but rather would choose to make the request in a more subtle way.
The Sixth Circuit's decision follows two prior Kentucky cases also upholding the employee's wrongful discharge claim in similar circumstances: Hill v Kentucky Lottery Corp, 327 SW3d 412 (Ky 2010) and Northeast Health Mgmt., Inc. v. Cotton, 56 S.W.3d 440, 449 (Ky App. 2001)
The Sixth Circuit's opinion was authored by Circuit Judge John Rogers and joined by Sixth Circuit Chief Judge Guy Cole and Senior Circuit Judge Arthur Alarcon, visiting from the Ninth Circuit
