Carey Kitts v. Commonwealth of Kentucky

RENDERED: OCTOBER 6, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1099-MR
CAREY KITTS APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 20-CI-00357
COMMONWEALTH OF KENTUCKY
AND JUSTICE AND PUBLIC
SAFETY CABINET APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, MCNEILL, AND TAYLOR, JUDGES.
MCNEILL, JUDGE: Appellant, Carey Kitts (Kitts), alleges that he was wrongfully
terminated by his employer, the Department of Criminal Justice Training (DCJT).
DCJT is a department within the Appellee, the Kentucky Justice and Public Safety
Cabinet (Cabinet). Kitts filed a Complaint in Franklin Circuit Court pursuant to
the Kentucky Whistleblower Act (the KWA), codified in KRS1 Chapter 61. Kitts
alleged that he made two protected disclosures, one regarding DCJT Commissioner
Alex Payne’s dismissal, and one regarding the appointment of the new
Commissioner, Nicolai Jilek. The Cabinet filed a motion for summary judgment,
which was granted. Kitts now appeals as a matter of right. For the following
reasons, we affirm.
“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 trial court’s decision and will review the issue de novo.” Lewis v. B&R
Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (citations omitted).
In order to demonstrate a violation of KRS 61.102,
an employee must establish the following four elements:
(1) the employer is an officer of the state; (2) the
employee is employed by the state; (3) the employee
made or attempted to make a good faith report or
disclosure of a suspected violation of state or local law to
an appropriate body or authority; and (4) the employer
took action or threatened to take action to discourage the
employee from making such a disclosure or to punish the
employee for making such a disclosure. The employee
must show by a preponderance of evidence that the
disclosure was a contributing factor in the personnel
action.
1
Kentucky Revised Statutes.
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Davidson v. Commonwealth, Dep’t of Mil. Affs., 152 S.W.3d 247, 251 (Ky. App.
2004) (internal quotation marks and citations omitted). In its order granting
summary judgment, the circuit court made the following findings:
[T]he parties agree that the first two (2) elements are
satisfied. The parties contest the remaining two (2)
elements. Defendant filed the underlying motion seeking
summary judgment. Defendant contends that Plaintiff
did not make a protected disclosure to an appropriate
body and was not terminated as the result of his alleged
disclosures. Plaintiff argues that he aided, supported, and
substantiated Payne’s claim and thus he has established a
viable claim under the KWA. Plaintiff’s response does
not make any mention of his second alleged protected
disclosure related to Jilek’s presence in the [DCJT]
building. The Court agrees with Defendant that Plaintiff
has failed to establish a prima facie case for a KWA
violation.
Regarding the information that was the subject of the alleged protected disclosures,
the court specifically determined:
the information was widely known and discussed, and
corrective action was already underway.
. . . [Plaintiff] did not disclose information that the
KWA was created to prevent such as mismanagement,
fraud, waste, abuse of authority, or danger to the public.
In careful consideration of the foregoing, the circuit court ultimately held:
Because Plaintiff did not make an unknown good
faith report or disclosure of a suspected violation of state
or local law to an appropriate body or authority, he has
failed to establish an essential element of a prima facie
claim under the KWA. Because a viable claim under the
KWA requires satisfying all four (4) elements, it is
-3-
impossible for Plaintiff to demonstrate that he was
terminated because of his statements as they were not
protected disclosures. Thus, Plaintiff has failed to
establish a viable claim under the KWA and Defendant is
entitled to summary judgment.
Based upon our review of the record, we find no error in the trial
court’s analysis. We agree that appellant did not make a protected disclosure that
was covered by the KWA nor was appellant’s employment terminated for the
purported disclosure. Accordingly, the circuit court’s conclusion that there was no
genuine issue or dispute as to any material fact is supported by the record below.
See CR2 56.03.
For the foregoing reasons, we affirm the circuit court’s September 1, 2022
order granting appellee’s motion for summary judgment.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Thomas E. Clay Leah Boggs
Louisville, Kentucky Erritt Griggs
Robin Cornette
Frankfort, Kentucky
2
Kentucky Rules of Civil Procedure.
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