Opinion
NO. 2014-CA-001856-MR
06-03-2016
BRENDA CLINE AND VICKIE MERIDETH APPELLANTS v. T. J. SAMSON COMMUNITY HOSPITAL APPELLEE
BRIEF FOR APPELLANTS: David T. Sparks Bowling Green, Kentucky BRIEF FOR APPELLEE: Mitzi D. Wyrick Louisville, Kentucky Susan D. Phillips David M. Thompson Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BARREN CIRCUIT COURT
HONORABLE PHIL PATTON, JUDGE
ACTION NO. 11-CI-00464 OPINION
AFFIRMING
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BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND TAYLOR, JUDGES. J. LAMBERT, JUDGE: Brenda Cline and Vickie Merideth appeal from the Barren Circuit Court's entry of summary judgment in favor of T.J. Samson Community Hospital (T.J. Samson). After careful review, we affirm.
This litigation involves several nurses who worked at the dialysis clinic at T.J. Samson in September 2010. On September 4, 2010, Vickie Matthews, a supervisor, disciplined the nurses for various issues that had taken place in the months prior.
Appellant Cline had worked at T.J. Samson since 1989, when she started as a licensed practical nurse (LPN). Cline left her employment with T.J. Samson, but she returned in September 2002 to work as an LPN in the dialysis center. Prior to the events on September 4, 2010, Cline had been disciplined on several occasions and had been threatened with probation. Cline was counseled for excessive absences in 2004, 2006, and 2007, and was advised that if she received another occurrence, she would be placed on probation. Cline had also been counseled for having a negative attitude at work and for having loud conversations in patient areas, which could be overheard by patients.
In 2010, Cline began to make allegations that other staff and nurses were not supporting her and were not completing their assigned tasks. Cline complained of a hostile work environment to her supervisors. According to T.J. Samson, Cline alleged that certain registered nurses (RNs) would refuse to do dressing changes on patients and would refuse to put up supplies. Cline made a complaint to Melanie Watson, the Chief Compliance Officer, alleging that another nurse had screamed at her about her work performance. Ms. Watson did not substantiate this allegation. During investigation, T.J. Samson determined that Cline would not take her breaks as scheduled by her supervisors, and Cline admitted to this allegation. Ms. Cline was also counseled about using a softer voice around patients.
Appellant Merideth started working for T.J. Samson in 1998 in the intensive care unit. She worked there for three years before accepting a position with a home health company. Merideth returned to T.J. Samson in 2006 and worked full-time in the dialysis unit until 2010, when she obtained custody of her granddaughter. At that time, she requested a part-time position. T.J. Samson did not have a part-time position available, so Merideth worked on an as-needed basis. In 2008, Merideth was counseled for failure to properly write up an order.
On September 4, 2010, Cline, Merideth, and another nurse, Regina Clark, were all working in the dialysis unit at T.J. Samson. Vickie Matthews was the supervisor on the day in question. Ms. Matthews wrote Merideth up for being off the floor at the same time Clark was off the floor, which Ms. Matthews alleged was a violation of a federal regulation. Ms. Matthews also wrote Merideth up for failure to obtain a permit for an invasive procedure on a new patient. Merideth admitted to being off the floor taking a break with Cline at the same time Clark was off the floor. After meeting with Ms. Matthews to discuss why she was being disciplined, Merideth went back to work.
After meeting with Merideth, Ms. Matthews called Clark into her office to discuss a situation where Clark allegedly allowed a patient to have dialysis when there was not a permit for the dialysis procedure in the patient's chart. Clark refused to sign the disciplinary action and asked to speak with Melanie Watson. Ms. Watson came to the meeting, and at some point both she and Clark became upset as the conversation escalated. Clark asked if Cline and Merideth could come to the meeting and join her. Ms. Watson stated that the matter did not concern Cline or Merideth and she could not allow them to join the meeting. Clark then stood up to leave the room. Ms. Watson testified that she then placed her arm on Clark's elbow and asked her to sit back down so they could discuss the write-up. Clark testified that she felt like she was being prevented from leaving the room at this point, and she screamed for Cline to come and help her. Merideth and Cline both heard Clark and both responded by coming to the office. The door was shut, and Cline opened it. Ms. Watson advised Merideth and Cline that the matter did not involve them and asked them to leave. At this point, Ms. Watson tried to shut the door and touched Cline's arm. At some point during all of this, Clark left the room and called 911.
The police responded to the hospital and took statements from both Cline and Merideth. They also took statements from Ms. Watson and Ms. Matthews. Cline and Merideth claim that they fully cooperated with the police who investigated the incident. T.J. Samson denies discouraging either Cline or Merideth from speaking with the police. After giving their statements to the police, Cline and Merideth went to the security office at the hospital. Cline and Merideth saw Cline's picture posted there with a notice that she was an agitated and upset employee.
Subsequently, Cline was placed on probation for violations that occurred before the September 4, 2010, incident. Cline met with Ms. Watson, Ms. Matthews, and LaDonna Rogers, the Human Resources Director, who advised that she was on probation and that she would be given a corrective action plan. The supervisors also informed Cline that she could return to work, subject to the probation and the terms of the corrective action plan. Cline refused the terms of probation as provided to her by her supervisors, and she never returned to work at T.J. Samson. At her deposition, however, Cline admitted that she did not take breaks as scheduled and acknowledged that she would have signed the probation paperwork before the September 4, 2010, incident. Merideth never worked again at T.J. Samson.
Ultimately Clark filed charges of false imprisonment and assault against Ms. Watson. Cline and Merideth both testified at Ms. Watson's trial. This trial took place almost a year after the September 4, 2010, incident, and Ms. Watson was cleared of the charges. T.J. Samson denies attempting to influence Clark, Cline, or Merideth with regard to this trial.
On June 7, 2011, Cline and Merideth filed this action alleging wrongful termination, intentional infliction of emotional distress, battery, and defamation. The parties conducted discovery, and in January 2014, T.J. Samson filed a motion for summary judgment. The circuit court granted the motion on October 17, 2014, holding that Cline and Merideth were at will employees of the hospital and that they were not terminated in violation of public policy. The court found that there was no employment-related nexus, which is required to prove a violation of a public policy or legislative enactment when an employee is employed "at will." The circuit court also found that the employees of T.J. Samson did not intentionally inflict emotional distress onto Cline or Merideth. Finally, the circuit court granted summary judgment in favor of the hospital on Cline's claims of battery and defamation. This appeal now follows.
An appellate court's standard of review in such cases is well-settled in the Commonwealth. "The standard of review on appeal when a circuit court grants a motion for summary judgment is 'whether the circuit court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.'" Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001), citing Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); Palmer v. Int'l Ass'n of Machinists & Aerospace Workers, 882 S.W.2d 117, 120 (Ky. 1994); Kentucky Rules of Civil Procedure (CR) 56.03. "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the circuit court's decision and will review the issue de novo." Lewis, 56 S.W.3d at 436, citing Scifres, 916 S.W.2d at 781; Estate of Wheeler v. Veal Realtors & Auctioneers, Inc., 997 S.W.2d 497, 498 (Ky. App. 1999); Morton v. Bank of the Bluegrass & Trust Co., 18 S.W.3d 353, 358 (Ky. App. 1999).
First, Cline and Merideth argue that the circuit court improperly granted summary judgment in favor of T.J. Samson on their wrongful termination claims. Cline and Merideth contend that T.J. Samson retaliated against them for their involvement with the September 4, 2010, incident and because they subsequently made oral and written statements to the investigating officers. Cline and Merideth allege that T.J. Samson discharged them in violation of Kentucky Revised Statutes (KRS) 524.040, KRS 534.050, and/or KRS 524.055.
T.J. Samson argues, just as it did before the trial court below, that Cline and Merideth were at-will employees and that they could not succeed on a wrongful termination claim because they could not prove an employment-related nexus. In support of this, T.J. Samson argues that in Kentucky the presumption is that employment is at will, and no legal right is violated when an employer discharges an employee. T.J. Samson cites to Gambrel v. United Mine Workers of Am., 249 S.W.2d 158, 160 (Ky. 1952), for the proposition that employment at will means that either party retains the right to terminate the employment relationship at any time and that no "cause" for the termination need be alleged or proven. T.J. Samson argues that Cline and Meredith cannot show that they fall under the narrow exception to the employment at will doctrine as articulated by the Kentucky Supreme Court in Grzyb v. Evans, 700 S.W.2d 399 (Ky. 1985).
We agree with T.J. Samson that as there was no contract for employment, Cline and Merideth were at-will employees. Accordingly, they must show that they were terminated in violation of a well-defined public policy. In Grzyb, the Kentucky Supreme Court clarified its previous analysis in Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730 (Ky. 1984), stating:
As we stated in Firestone Textile Co. Div. v. Meadows:
"[O]rdinarily an employer may discharge his at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible (cases cited)." 666 S.W.2d at 731.
Id. at 400. The Court went on to explain that in Firestone, it had adopted the Supreme Court of Wisconsin's analysis with regard to what triggers the exception to the terminable-at-will doctrine. Specifically, the Court reiterated:
This is the "terminable-at-will" doctrine, a longstanding corollary to mutuality of contract. Firestone provides a narrowly defined exception to the "terminable-at-will" doctrine, and articulates the elements that trigger the exception.
We embraced Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983), to establish the limitations on "any judicial exceptions to the employment-at-will doctrine." 335 N.W.2d at 835. They are:Id. at 401. Thus, Cline and Merideth would have to show that they were terminated in violation of public policy. Id. Further, they would have to show that the policy was evidenced in a statute or constitutional provision. Id. Finally, they must show that there is an employment-related nexus and that their conduct was protected by the statute or constitutional provision. Id. In other words, Cline and Merideth must show that the protected activity they engaged in was a substantial and motivating factor, but for which they would not have been discharged. First Property Management v. Zarebidaki, 867 S.W.2d 185, 188 (Ky. 1993).
1) The discharge must be contrary to a fundamental and well-defined public policy as evidenced by existing law.
2) That policy must be evidenced by a constitutional or statutory provision.
3) The decision of whether the public policy asserted meets these criteria is a question of law for the court to decide, not a question of fact.
In support of their argument that they were terminated in violation of a public policy as articulated in a statute, Cline and Merideth argue that statutory provisions KRS 524.040, 524.050, and 524.055 prohibit discharge of workers for cooperating with law enforcement and that they are designed to prevent the intimidation of witnesses, tampering with witnesses, and retaliation against participants in the legal process. They argue that these statutes allow witnesses to speak freely about what they have observed without the fear of repercussion or intimidation. Cline and Merideth acknowledge that there are no Kentucky cases that specifically address tampering with witnesses to workplace crimes or about retaliating against a participant in the legal process with regard to employment, but they contend that these statutes apply to every kind of case in Kentucky and therefore apply in this employment context.
KRS 524.040 provides:
(1) A person is guilty of intimidating a participant in the legal process when, by use of physical force or a threat directed to a person he believes to be a participant in the legal process, he or she:
(a) Influences, or attempts to influence, the testimony, vote, decision, or opinion of that person;
(Emphasis added). As stated above, KRS 524.040 requires a threat or the use of physical force. KRS 524.050 provides:(b) Induces, or attempts to induce, that person to avoid legal process summoning him or her to testify;
(c) Induces, or attempts to induce, that person to absent himself or herself from an official proceeding to which he has been legally summoned;
(d) Induces, or attempts to induce, that person to withhold a record, document, or other object from an official proceeding;
(e) Induces, or attempts to induce, that person to alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding; or
(f) Hinders, delays, or prevents the communication to a law enforcement officer or judge of information relating to the possible commission of an offense or a violation of conditions of probation, parole or release pending judicial proceedings.
(1) A person is guilty of tampering with a witness when, knowing that a person is or may be called as a witness in an official proceeding, he:
(a) Induces or attempts to induce the witness to absent himself or otherwise avoid appearing or testifying at the official proceeding with intent to influence the outcome thereby; or
(b) Knowingly makes any false statement or practices any fraud or deceit with intent to affect the testimony of the witness.
Here, Cline and Merideth have not claimed that T.J. Samson encouraged them to avoid testifying or attempted to influence their testimony in any manner, and T.J. Samson denied doing so in any way. The record does not support that T.J. Samson discouraged the appellants from giving their statements to police officers or from testifying at Ms. Watson's trial. Likewise, they have not established that T.J. Samson made any false statement about them or engaged in any fraud or deceit to affect their testimony. Further, they have not established the required employment-related nexus and have not articulated how this statute protects employees in the workplace. Without any proof that T.J. Samson violated these statutes and without an argument that these statutes apply in the workplace setting, the appellants cannot surpass summary judgment, and the trial court did not abuse its discretion.
(2) Tampering with a witness is a Class D felony.
KRS 524.055 prohibits retaliating against a participant in the legal process by engaging or threatening to engage in conduct causing or intending to cause bodily injury or damage to tangible property to a participant in the legal process. Again, Cline and Merideth have not alleged that anyone from T.J. Samson caused them bodily injury or damaged their tangible property after they spoke to the police or testified against Watson, and the record does not reflect that a violation of this statute occurred. Cline and Merideth have not established how this statute applies to the employment setting. Summary judgment was proper, and the trial court did not abuse its discretion.
We agree with T.J. Samson that this case is similar to Davis v. Target Corp., 2007 WL 29446 (W.D. Ky. 2007), wherein the District Court for the Western District of Kentucky dismissed a wrongful discharge claim. There, Davis alleged that Target had terminated her for cooperating in a drug-related investigation where she gave police officers access to store surveillance cameras. She claimed that her discharge was in violation of KRS 524.055, KRS 502.040, and KRS 70.060. Holding that none of those statutes pertained to the rights of employees and therefore could not support a wrongful discharge claim, the court determined that an employment-related nexus did not exist. Id. at *4. The same is true in the instant case.
As T.J. Samson points out in its brief to this Court, Cline was placed on probation and was advised that she could return to work subject to the terms of the probation. Cline rejected T.J. Samson's probation offer and chose not to return to work. She was not terminated, and thus her claim for wrongful termination cannot surpass summary judgment, even assuming that the above statutes were applicable to the facts of this case.
Next, Cline and Merideth argue that the circuit court improperly dismissed their claims of intentional infliction of emotional distress. In support of this, they claim that T.J. Samson caused them emotional distress by prohibiting them from returning to work. Cline and Merideth claim that the fact that they were terminated as part of an effort to cover up the criminal conduct of a hospital administrator has caused them further distress. Cline alleges that she was also subjected to emotional distress when hospital security displayed her picture with the suggestion that she was angry and agitated, which she argues also relates to her defamation claim.
The law regarding claims of intentional infliction of emotional distress (IIED) is well-settled in Kentucky.
The tort of IIED, or outrage, was adopted by this Court in Craft v. Rice, Ky., 671 S.W.2d 247, 251 (1984), because "[t]here is a right to be free of emotional distress arising from conduct by another." Id. To make out a claim of IIED, the following elements must be proved: (1) the wrongdoer's conduct must be intentional or reckless; (2) the conduct must be outrageous and intolerable in that it offends against generally accepted standards of decency and morality; (3) there must be a causal connection between the wrongdoer's conduct and the emotional distress; and (4) the emotional distress must be severe. Kroger Co. v. Willgruber, Ky., 920 S.W.2d 61, 67 (1996); Craft, 671 S.W.2d at 249.Gilbert v. Barkes, 987 S.W.2d 772, 777 (Ky. 1999). The trial court determines whether the claimed behavior was so outrageous that it meets the "high threshold" for IIED claims. See Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 7781, 788-89 (Ky. 2004).
We agree with the trial court that even if Cline and Merideth's allegations are true, T.J. Samson's alleged conduct is not outrageous as a matter of law. While Cline claims that she was placed on probation because she cooperated with the police and that her picture was posted in the security office, she conceded that she was placed on probation for conduct she admitted to—not taking her breaks as scheduled and for displaying a negative attitude in the workplace. Merideth claims that she was not scheduled to work again because she talked to the police; however, she has not provided any proof that supports this allegation that would survive summary judgment. Instead, the record supports that Merideth was written up for failure to write orders properly and for violating federal guidelines.
We cannot conclude that T.J. Samson's actions amount to intentional infliction of emotional distress. Discipline, even discipline that amounts to unlawful, retaliatory termination, does not rise to the level of outrageousness required to establish an IIED claim under Kentucky law. See Highlands Hosp. Corp. v. Preece, 323 S.W.3d 357, 368 (Ky. App. 2010) ("Termination from employment, even if for discriminatory reasons, is insufficient to constitute outrageous conduct to support a claim for intentional infliction of emotional distress."); Miracle v. Bell Cnty. Emergency Med. Serv., 237 S.W.3d 555, 560 (Ky. App. 2007) ("The mere termination of employment and the resulting embarrassment do not rise to the level of outrageous conduct and resulting severe emotional distress necessary to support a claim for IIED.") (Citation omitted).
Furthermore, Cline and Merideth have not provided any evidence that they suffered severe emotional distress. While Cline and Merideth seem to argue that they were embarrassed by the events that took place at T.J. Samson, embarrassment does not rise to the level of severe emotional distress. See Benningfield v. Pettit Envtl, Inc., 183 S.W.3d 567, 572 (Ky. App. 2005). While Cline has alleged that she was taking antidepressants, the record indicates that she was taking these before the September 4, 2010, incident and the ensuing events. Merideth alleges that she sought counseling, but she was receiving counseling with her family because of her granddaughter, of whom she had custody.
Our review of the record indicates that Cline and Merideth did not provide enough evidence of intentional infliction of emotional distress by T.J. Samson to surpass summary judgment. Accordingly, we find no error in the circuit court's holding in this regard.
Next, Cline argues that Ms. Watson touched her when she attempted to close the door while talking to Clark and that this amounted to battery. Cline contends that T.J. Samson is vicariously liable for Ms. Watson's conduct. A review of the record indicates that Cline has not alleged that T.J. Samson did anything other than employ Watson, and an employer is not responsible for the torts committed by its employee so long as the employer neither expressly nor impliedly authorizes the commission of the tort. See John v. Lococo, 76 S.W.2d 897 (1934). There is no evidence that T.J. Samson authorized Ms. Watson to commit a tort, and the evidence of record indicates that Ms. Watson simply came into contact with Cline while trying to shut the door.
Cline's final claim is that the circuit court improperly dismissed her defamation claims. Cline alleges that when T.J. Samson posted her picture in the security room, they were falsely suggesting that she was somehow unstable or dangerous, or that she might even resort to violence. Cline claims that a material issue of fact existed with regard to the facts underlying this claim, and therefore that summary judgment was improper. Cline claims that the statements on her picture were untrue and that the hospital demonstrated malice in this regard.
In Kentucky, a plaintiff must prove each of four elements to sustain a defamation action: 1) use of defamatory language; 2) about the plaintiff; 3) that was published; and 4) caused injury to the plaintiff's reputation. Stringer, 151 S.W.3d at 793 (citation omitted). We agree with T.J. Samson and the circuit court that Cline failed to make a showing that the language was defamatory or injured her reputation.
Defamatory language brings a person into public hatred, contempt or ridicule; causes a person to be shunned or avoided; or injures a person in his business or occupation. McCall v. Courier Journal and Louisville Times Co., 623 S.W.2d 882, 884 (Ky. 1981). Courts determine whether a statement is defamatory as a matter of law. Id. at 885. We agree with the trial court that a statement that someone is angry and agitated is not defamatory. Case law in Kentucky provides examples of defamatory language. See, e.g., Stringer, 151 S.W.3d at 795 (noting that many defamation actions arise from accusations of crimes, such as theft or murder); McCall, 623 S.W.2d at 885 (finding it defamatory to accuse attorney of bribing judges); Shrout v. The TFE Group, 161 S.W.3d 351 (Ky. App. 2005) (finding it defamatory for employer to continue to report false positive result of plaintiff's drug test). The words "angry" and "agitated" are not similar to the statements that have been determined to be defamatory in Kentucky. Cline has made no showing that she was damaged in any way by the picture being privately posted in the security office, and her defamation claim was properly dismissed.
As T.J. Samson points out in its brief to this Court, even if the posting was determined to be defamatory, the posting was private and was therefore privileged. A qualified privilege exists "where the communication is one in which the party has an interest and it is made to another having a corresponding interest...if [the communication] is made in good faith and without actual malice." Stringer, 151 S.W.3d at 796 (citations and quotations omitted). Again, the existence of a privilege is a question of law and is not a question of fact for the jury. Id.
We agree that in the instant case, the hospital had a vested interest in the safety of its employees and the employees had a common interest in being aware of another agitated employee. The communication (the posting of Cline's picture) was made in good faith to make other employees aware and was not of the nature that amounts to defamation. Further, defeating a qualified privilege requires that a plaintiff demonstrate the statements were made with actual malice or that the defendant knew what he was saying was false or acted with reckless disregard as to whether the statement was true or false. McCall, 623 S.W.2d at 885. Cline has not demonstrated that T.J. Samson has acted with actual malice in privately posting her picture, nor that they acted with reckless disregard. Finally, truth is an absolute defense to a defamation claim. Stringer, 151 S.W.3d at 796. Cline was upset that she was placed on probation, and Clark's altercation with the hospital escalated this incident. Thus, the hospital's statement that Cline was upset and agitated was substantially accurate. Cline has not satisfied her burden of proof that T.J. Samson posted something that was blatantly untrue about her, nor has she shown any damages that resulted from the alleged defamation. Accordingly, the circuit court properly dismissed Cline's claims and granted T.J. Samson summary judgment.
Finding no error by the Barren Circuit Court, we affirm the October 17, 2014, order granting summary judgment to T.J. Samson on Cline and Merideth's various claims.
ALL CONCUR. BRIEF FOR APPELLANTS: David T. Sparks
Bowling Green, Kentucky BRIEF FOR APPELLEE: Mitzi D. Wyrick
Louisville, Kentucky Susan D. Phillips
David M. Thompson
Louisville, Kentucky