A recent Kentucky Court of Appeals decision, Follett v. Gateway Regional Healthcare System, Inc, 2006-CA-000855-MR (July 20, 2007)(to be published), provides illumination on an exception to the employment at will doctrine in Kentucky. In this case Sharon Follett, the Director of Nursing at Mary Chiles Hospital, was fired by Patrick Romano, CEO of Gateway (which owns Mary Chiles). Ostensibly, the termination was for insubordination due to Sharon Follett giving raises to two nurses.
I do not even need foreshadowing to tip you off to the next event. Sharon Follett claimed the firing was actually for some whistleblowing she did the preceding year. She cited two events:
The first situation involved her reporting suspicions that an emergency room doctor was under the influence of alcohol while on duty. The other situation involved her involvement in reporting suspected emergency room billing irregularities at the hospital. Id. at 2.
Ordinarily in Kentucky, and employer can fire an employer for a good reason or just because they feel like it. Usually, a firing can occur even for a morally indefensible, but legal, reason. However, a narrow exception to this fire at will doctrine is when taking such an action violates a fundamental and well-defined statutory or constitutional public policy. In this case, Sharon Follett argued that the firing was due to her unwillingness to violate KRS 311.550(1):
Conviction of willfully resisting, preventing, impeding, obstructing, threatening, or interfering with the or any of its members, or of any officer, agent, inspector, or investigator of the board or the Cabinet for Health and Family services, in the administration of any of the provisions of KRS 311.550 to 311.620 shall be a Class A misdemeanor.
In looking at Follett’s claim, which was a non-civil rights claim for wrongful discharge, used a three prong approach. She had to show that: 1) she was engaged in a statutorily protected activity, 2) a termination occurred (this seems a bit obvious to actually be its own prong, but there it is), and 3) that there is a connection between the activity and the termination. Furthermore, for the third prong, she had to show that the protected activity was “a substantial and motivating factor but for which the employee would not have been discharged.” Id. at 6citing Zarebidaki, 867 S.W.2d at 188.
The Court then reviewed many of the facts set forth at the trial court level. This included the events around Sharon Follett’s reporting the problems and evidence indicating she, in fact, did have authority from Romano to give the raises. As a result, the Court vacated the trial court’s summary judgement and reinstate the action.
Moral of the story: Even though Kentucky has an employment at will doctrine that strongly favors employers, be sure to review ALL the surrounding circumstances when a firing is questionable. If you are a small business without in-house counsel, it is worth paying a consultation fee to an attorney to perform such a review.