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# Commonwealth of Kentucky

Court of Appeals

NO. 2022

- CA

- 1099

- MR

CAREY KITTS APPELLANT

v. APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE THOMAS D. WINGATE, JUDGE

ACTION NO. 20

- CI

- 00357

COMMONWEALTH OF KENTUCKY

AND JUSTICE AND PUBLIC

SAFETY CABINET APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, M C NEILL, AND TAYLOR, JUDGES.

M C NEILL, JUDGE: A ppellant, Carey Kitts ( Kitts ), alleges that he was wrongfully

terminate d by h is 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- 2

-

t he Kentucky Whistleblower Act (the KWA), co dified in KRS 1 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 jud gment,

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 no t 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) (citation s omitted).

I n 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 repor t 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

.- 3

-

Davidson v. Com monwealth

, 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 a nd 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 th e foregoing, the circuit court ultimate ly 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 o f a prima facie

claim under the KWA. Because a viable claim under the KWA requires satisfying all four (4) elements, it is- 4

- impossible for Plaintiff to demonstrate that he was terminated because of his statements as they were not protected disclosures. Th us, 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 discl osure 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 CR 2 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:

Thomas E. Clay Louisville, Kentucky BRIEF FOR APPELLEE:

Leah Boggs Erritt Griggs

Robin Cornette Frankfort, Kentucky

2 Kentucky Rules of Civil Procedure.