explaining common law wrongful discharge claim in Gryzb was preempted not because it was based on the same conduct as KCRA sex discrimination claim -86- but because both claims were based on the same law and public policy prohibiting sex discrimination
How later courts described this case
- explaining common law wrongful discharge claim in Gryzb was preempted not because it was based on the same conduct as KCRA sex discrimination claim -86- but because both claims were based on the same law and public policy prohibiting sex discrimination
- explaining that it is within the Trial Court’s discretion to award an attorney the value of the time expended “to vindicate the civil rights violations” even if unsuccessful on other -21- claims
- “Splitting the fee equally between the two causes of action . . . does not represent a true effort to place a value on the services rendered by the attorneys to vindicate the civil rights violations.”
- “In the context of a wrongful discharge case, preemption occurs when the statutes that establish the ‘well-defined public policy’ violation 11 which supports the wrongful discharge pleading are the same statutes that establish a statutory cause of action for, and structure the remedy for, violations of that public policy.”
Written by the judges who cited it.
The opinion
ABRAMSON, Justice,
concurring in part and dissenting in part:
I concur in all parts of the majority opinion with the exception of Part VIII, *432 regarding punitive damages, from which I respectfully dissent.
INSTRUCTION NO. 8: PUNITIVE DAMAGES
If you find for Kim [Bob] Hill under Interrogatory No. 1 and / or No. 2 and / or 8, and awarded her [him] a sum of money in damages under either Instruction 5, 6, or 7, and if you are satisfied from the evidence that the Kentucky Lottery acted toward Kim [Bob] Hill with oppression or malice, you may in your discretion, award punitive damages against the Kentucky Lottery in addition to the damages awarded under Instruction No. 5, 6, or 7.
As used in this Instruction oppression means conduct that was specifically intended by the Kentucky Lottery to subject Kim [Bob]Hill to cruel and unjust hardship; and malice means conduct that was specifically intended by the Kentucky Lottery to cause tangible or intangible injury to Kim [Bob]Hill.
If you award punitive damages, in determining the amount thereof, you should consider the following factors: a) the likelihood at the time of such misconduct by the Kentucky Lottery that serious harm- would arise from it; b) the degree of the Kentucky Lottery’s awareness of that likelihood; c) the profitability of the misconduct to the Kentucky Lottery; d) the duration of the misconduct and any concealment of it by the Kentucky Lottery; and e) the actions by the Kentucky Lottery to remedy the misconduct once it became known to it.
If you award punitive damages, you will state the amount separately from the sum or sums awarded under Instruction No. 5, 6, or 7. The award shall not exceed $1,000,000 (the amount claimed).
This instruction focuses, as Kentucky law requires, on the conduct of the defendant, KLC. According to the preceding jury instructions, KLC’s conduct underlying the common law wrongful discharge claim was its “urging” that Kim Hill “give false testimony ... at an unemployment hearing. ...” As for the retaliatory discharge claim, the jury instructions required the jury to consider the Hills’ opposition to what they “believed to be the Kentucky Lottery’s violation of Ed Gilmore’s civil rights.... ” This statutory claim focused on Kim Hill’s affirmative testimony in support of Gilmore’s unemployment claim. While the majority’s preemption analysis recognizes the independent nature of these two claims, its punitive damages analysis conflates the two as “factually synonymous.” I disagree. While all of the conduct related to the Gilmore matter, there was nonetheless different conduct at different points in time. The request for perjury was weeks before the actual unemployment hearing. The retaliation occurred following Kim Hill’s decision to testify affirmatively on Ed Gilmore’s behalf in response to what she viewed as unlawful discrimination against Gilmore, who was allegedly disabled.
After Kentucky Dept. of Corrections v. McCullough, 128 S.W.3d 130 (Ky.2003), it is black letter law that punitive damages are not recoverable for a violation of the Kentucky Civil Rights Act (KCRA). Thus, the retaliatory discharge claim and the conduct underlying that claim were not properly part of the jury’s consideration as to the award of punitive damages. Furthermore, it is impossible to know that the award was not in some measure affected by the improper inclusion of the KCRA claim and, consequently, the error is not harmless. While the majority insists the combined damage instructions criticized in Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781 (Ky.2004), are distinguishable, and it was perhaps easier to identify specific distinct acts underlying the three tort *433 claims in that case, the principle remains pertinent and, in my view, precludes upholding an award pursuant to the erroneous combined instruction. Accordingly, I would remand for a new trial solely on punitive damages.
SCHRODER, J., and Special Justice MARK C. WHITLOW join.