Kentucky Court of Appeals - Unpublished
Employment - KCRA - Retaliation
Taylor v. United Parcel Service, Inc., 2012 WL 5630421 (Ky.App. November 16, 2012), motion for discretionary review filed December 21, 2012 (2012-SC-000816-D), denied September 18, 2013

Taylor, a longtime employee of UPS, filed a complaint in federal court alleging sexual harassment and retaliation, which was dismissed in January 2008. In late 2007, UPS began getting complaints from co-workers to the effect that the was making threats against a co-worker. He was suspended pending an investigation and discharged. He filed an unsuccessful union grievance. He then filed this case alleging that his discharge was in retaliation for the filing of the federal complaint. The Court of Appeals utilized the McDonnell Douglass burden shifting test in affirming the trial court's grant of summary judgment.

The Court found that Taylor had made out a prima facie case, but also found that UPS had stated a legitimate nondiscriminatory reason for Taylor's discharge. Thus the case turned on whether Taylor had made a showing that the stated reasons were a pretext. While Taylor made a number of assertions which he claimed undermined the stated reason, and denied that he had made the threats. However, the record showed that upon receiving complaints from a number of employees, UPS investigated and found consistency among the complainants. The opinion does not say it, but whether the employee actually made the threats should not be relevant, the focus being on what was known to and motivated the employer.

The Court also rejected the effort to show pretext by disparate treatment. He pointed to two co-workers who had been discharged by UPS but reinstated by the grievance board. The Court noted that the employer did not have control over the grievance board, but also that the record did not contain sufficient information about the other tow incidents to conclude that they were similarly situated.

Kentucky Court of Appeals - Unpublished
Wrongful Use of Civil Process - Termination
Greenfield v. McMillen, 2012 WL 5457511 (Ky.App. November 9, 2012)

While a dismissal for failure to prosecute may satisfy this element, it does not necessarily do so. The burden is on the plaintiff to show that the dismissal was under circumstances tending to show innocence on the merits. In this case the suit in question was brought to seek an injunction proscribing harassment. The harassment ceased shortly after the claim was filed, and the target of the suit had denied an intent to make further contact. A voluntary dismissal under these circumstances was not considered to be favorable to the defendant.

Kentucky Court of Appeals - Unpublished
Employment - Wrongful Discharge
Sparks v. Henson, 2012 WL 5463877 (Ky.App. November 9, 2012)

In this case the employer was a Toyota dealer operating under a dealer agreement with Toyota Motor Sales, USA, Inc. As part of the agreement, the dealer was monitored for a number of criterion, including customer satisfaction. Sparks was to be the general manager of the dealer, and Henson was the fleet manager. Due to problems with customer satisfaction and this threatened the dealer arrangement and was a barrier to Sparks' approval as general manager by Toyota.

Henson alleged that Sparks developed a scheme to fraudulently improve customer satisfaction numbers. Part of the scheme was to have the managers flag the surveys returned by unhappy customers, and then Sparks would report an incorrect address for those customers. While this worked for a while, Toyota ultimately determined that the dealer had a high rate of undeliverable surveys, and their investigation revealed the scheme. Henson alleged that Sparks told her to misrepresent to Toyota that she was the problem. She refused and was terminated. Henson then went to Toyota with evidence that Sparks had designed the scheme, which led to Spark's termination.

The jury made an award against Sparks but was hung as to the employer. The trial court found the public policy in KRS 517.050 (prohibiting falsification of business records) and/or KRS 190.010 et. seq. (prohibiting fraud on a distributor). The holding was that where the exception to the terminable at will rule is based on the failure or refusal to violate a law, the statute does not have to explicitly provide a remedy for retaliation.

Kentucky Court of Appeals
Defamation - Substantially True
Gibson v. Raycom TV Broadcasting, Inc., 2012 WL 5372104 (Ky.App. November 2, 2012), motion for discretionary review filed November 30, 2012 (2012-SC-000789-D), denied August 21, 2013, ordered de-published.

When confronted with construction costs substantially over budget, the owner Taylor demanded invoices before he would make further payments. Instead of producing invoices, contractor Gibson and his subcontractors filed liens of around $200,000.00. Taylor contended that these included amounts already paid and some were duplicative. The liens caused an increase in financing costs for the home. Taylor filed complaints with the Better Business Bureau and the police. Gibson was indicted by the grand jury.

Following Gibson's indictment, Taylor contacted the local television station's consumer reporter and described his dealings with Gibson. The reporter investigated the story and decided to report it. About a year later Gibson filed an action alleging defamation. A few months after that, he pled guilty to contractor/architect to apply payments to a claim, a class A misdemeanor. A condition of the plea was that he remove the liens.

Gibson complained about three statements in the news report, but following the plea he withdrew his claim as to the statement that the liens filed were "bogus". The statement that Gibson had taken Taylor for $200,000.00 and the statement that Taylor was tearing down part of the house so plumbers could determine why they have no water most days remained in the case. The Court found both statements to be substantially true. The $200,000 was the amount of the liens and the amount Gibson charged over the contract price. A plumber was working on problems at the Taylor home. One has to think the result was mandated by the guilty plea, and perhaps that fact justified more leniency in the proximity of the truth to the story required by the court.