RENDERED: NOVEMBER 17, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0575-MR

WILLIAM WINCHESTER APPELLANT 

v. 

APPEAL FROM MCCRACKEN CIRCUIT COURT

HONORABLE TIMOTHY KALTENBACH, JUDGE

ACTION NO. 20-CI-00326

THE SALVATION ARMY, A 

GEORGIA CORPORATION; JOHN R. 

HORTON; AND MONICA HORTON APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, DIXON, AND JONES, JUDGES.

ACREE, JUDGE: Appellant William Winchester was terminated from his 

employment with The Salvation Army (TSA) and subsequently sued Appellees, 

TSA, John Horton, and Monica Horton for wrongful termination, retaliation, 

defamation, and promissory estoppel. He appeals the McCracken Circuit Court’s 
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April 8, 2022 Memorandum and Order granting summary judgment in favor of 

Appellees. We affirm.

BACKGROUND

Appellant began working for TSA at its Paducah Corps1as a “Corps 

Accountant” on July 9, 2014. Appellees John and Monica Horton led the Paducah 

Corps. The Paducah Corps’ operations include a church, a community center, a 

food bank, and a thrift store.

The TSA’s Southern Territory Employee Manual explicitly states that 

all employees are at-will except for those employees with a written contract. 

Section 2.2 of the manual provides:

Employees voluntarily enter into their employment 

relationship with The Salvation Army, and accordingly are 

free to resign at any time, with or without cause or reason, 

with or without prior notice. Similarly, The Salvation 

Army may terminate an individual’s employment at any 

time, with or without cause or reason, with or without prior 

notice. This mutual relationship is called “employment atwill.” In accepting or continuing employment, employees 

agree that the relationship is and always has been strictly 

voluntary and at-will on both sides. Nothing in this 

manual, or in any other document issued by the Salvation 

Army or its representative(s), will alter this at-will 

relationship except a written contract for that express 

purpose, which is signed by both the employee and the 

Board of Trustees.

1 As Appellant notes in his brief, TSA is organized using a quasi-military structure. Its Kentucky 

and Tennessee division is subdivided into “corps,” and each corps is typically headed by a husband 

and wife team.
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Further, Section 15 of the manual states that “[i]n order to preserve the at-will 

options of the organization and each employee, it is understood that the 

employment relationship may be terminated with or without cause, at any time by 

either party.” Appellant signed an acknowledgement form reflecting his 

understanding of the at-will nature of his employment.

Section 3.14 of the manual, titled “Whistleblower Protections[,]” 

states as follows:

If an employee has knowledge of, or concern about, illegal 

dishonest, or fraudulent activity, the employee is to 

contact his/her immediate supervisor or the Human 

Resources Department. The Salvation Army has a policy 

in place to protect individuals who are considered 

“whistleblowers”; for more information about the 

protections provided to whistleblowers, please see this 

policy. Managers and supervisors who become aware of 

reports of illegal and dishonest activities and/or violations 

of this policy through any means are obligated to promptly 

report this information to their supervisor (or up the chain 

of command as appropriate for the circumstances) and the 

Human Resources Department. 

Appellant claims to have witnessed the Hortons violate Kentucky law 

in multiple ways, including insurance fraud, fraudulent misrepresentation, theft by 

deception, falsification of business records, and harassment. For instance, he 

alleges the Hortons obtained an insurance check to make repairs after a hot water 

heater ruptured and flooded the church and community center but did not use the 

insurance funds to make repairs. He also alleges the Hortons obtained a grant for 
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canteen repairs and for musical instruments but used most of the grant funds for 

general operations. He claims John Horton regularly altered and falsified monthly 

financial reports that Appellant had prepared in order to conceal the true financial 

condition of the Paducah Corps, and that the Hortons took items donated to the 

thrift store and sold the items for personal profit. He also alleges that management 

at the thrift store helped halfway house residents smuggle stolen items into the 

halfway house by generating false receipts for the stolen items. 

Appellant began addressing his concerns with TSA in February 2019, 

primarily by email. Appellant sent emails expressing his concerns to Lisa 

Thompson, the human resources director for the Kentucky and Tennessee division 

of TSA, and Sally Love, the Kentucky and Tennessee Personnel Secretary Captain.

On February 7, 2019, Appellant requested accommodations under the 

Americans with Disabilities Act (ADA) based on his exposure to tobacco smoke. 

Appellant and Thompson met in person regarding an unrelated matter and, during 

that meeting, Appellant informed Thompson of his concerns regarding alleged 

drug dealing, health and safety problems, and other issues. Thompson asked 

Appellant to email her a list of the issues he raised. Appellant did so. He claims 

he relied on the TSA Employee Manual’s protections for internal whistleblowers.

Appellant alleges that, after he raised concerns with Thompson, John 

Horton falsely attributed errors affecting an annual audit to Appellant. The 
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minutes of an April 11, 2019 Advisory Board meeting reflect that John Horton 

discussed the status of an audit with the Board, informing board members that 

items on the audit’s exception list were the result of coding errors in the general 

ledger and that none of the exceptions were major issues. Appellant believes this 

statement was meant to impugn his professional abilities as the Paducah Corps’ 

accountant, despite Appellant’s name not appearing in the meeting minutes.

He also alleges the Hortons lowered the “professional integrity” rating 

in Appellant’s 2019 annual evaluation in retaliation for emailing Thompson. 

However, Appellees note that, because Appellant’s score increased in a different 

category of his annual evaluation, his overall score remained the same; Appellant 

received a raise following his annual evaluation.

Regardless, Appellant submitted a retaliation complaint against the 

Hortons by email to Thompson and Love on August 2, 2019. Ultimately, TSA 

determined the Hortons had not violated any TSA policies. Thereafter, Thompson 

wrote Appellant a letter dated September 6, 2019, wherein she assured Appellant 

that no adverse employment action would be taken against him because of his 

retaliation complaint. Appellant says he made further reports after receiving the 

letter in reliance on Love’s assurance.

Appellant claims the Hortons initiated a campaign of further 

retaliation against him after making his retaliation complaint. He also suspected 
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further financial issues with the Paducah Corps, and so he began to compile 

evidence of what he believed to show, among other things, falsification of business 

records, fraud, and misappropriation of grant funds. He claims John Horton had 

been altering or otherwise falsifying financial reports Appellant had created; 

Appellant claims he sent the next financial report to John Horton in a format that 

could not be altered, and that Horton made Appellant resend the report in a format 

that John would be able to edit.

The TSA paid for the Hortons to travel to Israel for two weeks in 

February of 2020. They placed the Paducah Corps’ youth director in charge during

their absence. Appellant claims the youth director had a problem with an 

employee and, after contacting John Horton about what to do, Appellant and the 

youth director spoke with the employee in John Horton’s unlocked office. Also 

during the Hortons’ trip, an incident occurred during a youth activity; the youth 

director was injured and Appellant assaulted. Appellant created an incident report; 

upon the Hortons’ return to the country, Appellant claims John Horton insisted 

Appellant change his incident report to remove criticism of the Hortons, but

Appellant refused to do so.

Appellant was terminated on March 23, 2020, with the stated reason 

being “a violation of The Salvation Army policy – Ethics and Confidentiality.” He 

claims the reasons for his termination – that he broke into John Horton’s office 
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while the Hortons were in Israel and that he photocopied a confidential social 

services client sign-in sheet – were pretextual. Appellant claims he was required to

enter the office in the past and that, at least twice, the Hortons instructed him to use 

a screwdriver to open the locked office door. He also claims the office door was 

not locked while the Hortons were abroad. He also claims that, although Appellees 

say the sign-in sheet is confidential, it was hanging on a clipboard in a location that 

anybody would be able to see it.

Appellant sued TSA itself, alleging wrongful termination in violation 

of public policy, retaliation, and wrongful discharge and retaliation under a 

promissory estoppel theory. He also sued the Hortons for defamation, libel, 

slander, and conversion. On February 19, 2022, Appellant listed the factual 

allegations supporting his lawsuit in an affidavit. On April 8, 2022, the circuit 

court granted summary judgment on all claims except for conversion, which the 

parties later resolved and filed a stipulation of dismissal. Appellant now appeals.

STANDARD OF REVIEW

A circuit court properly grants summary judgment “if the pleadings, 

depositions, answers to interrogatories, stipulations, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment as a matter of 
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law.” CR2 56.03. “An appellate court’s role in reviewing a summary judgment is 

to determine whether the trial court erred in finding no genuine issue of material 

fact exist[ed] and the moving party was entitled to judgment as a matter of law.” 

Feltner v. PJ Operations, LLC, 568 S.W.3d 1, 3 (Ky. App. 2018). Thus, appellate 

courts review a circuit court’s grant of summary judgment motions de novo. Cmty. 

Fin. Servs. Bank v. Stamper, 586 S.W.3d 737, 741 (Ky. 2019). However, “where 

the movant shows that the adverse party could not prevail under any 

circumstances” summary judgment is appropriate. Steelvest, Inc. v. Scansteel Serv. 

Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). “[A] party opposing a properly 

supported summary judgment motion cannot defeat that motion without presenting 

at least some affirmative evidence demonstrating that there is a genuine issue of 

material fact requiring trial.” Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992) 

(citing Steelvest, 807 S.W.2d at 480).

ANALYSIS

I. Wrongful Termination.

Appellant first argues the circuit court erred in dismissing his public 

policy wrongful termination claim. He claims the circumstances of his termination 

exempt him from the general prohibition against wrongful termination claims 

brought by at-will employees. “[O]rdinarily an employer may discharge his at-will 

2 Kentucky Rules of Civil Procedure.
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employee for good cause, for no cause, or for a cause that some might view as 

morally indefensible.” Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. 

Meadows, 666 S.W.2d 730, 731 (Ky. 1983) (citations omitted). This is known as 

the “terminable at-will” doctrine and is “a longstanding corollary to mutuality of 

contract.” Gryzb v. Evans, 700 S.W.2d 399, 400 (Ky. 1985).

The Kentucky Supreme Court in Firestone identified three limitations 

on any exception to the terminable at-will doctrine. See Firestone, 666 S.W.2d at 

731-33. The Supreme Court more clearly listed these limitations in Gryzb: first, 

“[t]he discharge must be contrary to a fundamental and well-defined public policy 

as evidenced by existing law”; second, “[t]hat policy must be evidenced by a 

constitutional or statutory provision”; and third, “[t]he decision of whether the 

public policy asserted meets these criteria is a question of law for the court to 

decide, not a question of fact.” Gryzb, 700 S.W.2d at 401.

The Supreme Court in Gryzb determined that two – and only two –

exceptions to the termination at-will doctrine exist where the “‘grounds for 

discharging an employee are so contrary to public policy’” that a cause of action 

exists even without “‘explicit legislative statements prohibiting the discharge.’” 

Gryzb, 700 S.W.2d at 402 (quoting Suchodolski v. Michigan Consol. Gas Co., 316 

N.W.2d 710, 711 (Mi. 1982)). Under the first – the refusal exception – the 

employee must have been discharged because he failed or refused to violate the 
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law while employed. Id. (quoting Suchodolski, 316 N.W.2d at 711). Under the 

second – the protected activity exception – the employee must have been 

discharged because of “‘the employee’s exercise of a right conferred by wellestablished legislative enactment.’” Id. (quoting Suchodolski, 316 N.W.2d at 711). 

Further, there must be a causal connection between the employee’s 

protected activity and his subsequent termination: “in a non-civil rights wrongful 

discharge case, a plaintiff must show ‘at a minimum that he was engaged in a 

statutorily protected activity, that he was discharged, and that there was a 

connection between the “protected activity” and the discharge.’” Mitchell v. 

Coldstream Lab’ys, Inc., 337 S.W.3d 642, 645 (Ky. App. 2010) (quoting Follett v. 

Gateway Reg’l Health Sys., Inc., 229 S.W.3d 925, 929 (Ky. App. 2007)). To 

demonstrate a connection between a protected activity and the discharge, a plaintiff 

must “show the protected activity was ‘a substantial and motivating factor but for 

which the employee would not have been discharged.’” Follett, 229 S.W.3d at 929 

(quoting First Prop. Mgmt. Corp. v. Zarebidaki, 867 S.W.2d 185, 188 (Ky. 1993)). 

“As there is rarely a case where a plaintiff has a ‘smoking gun’ to prove improper 

motive, a plaintiff must frequently ‘rely on circumstantial evidence and the 

inferences that can be drawn therefrom to make his or her case.’” Id. (quoting 

Willoughby v. GenCorp., Inc., 809 S.W.2d 858, 861 (Ky. App. 1990)).
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In Follett, we determined the circuit court erred in granting summary 

judgment because there were genuine questions as to whether Follett was engaged 

in statutorily protected activity, and as to whether this activity was a substantial 

and motivating factor but for which she would not have been terminated. Id. at 

932. Follett reported to her supervisor her suspicion that a physician was under the 

influence of alcohol at work in or around March 2002, and cooperated with 

investigative efforts in April and December of that year. Id. at 930. Follett 

encouraged her staff to report suspected billing irregularities in the emergency 

department in or around January 2003, and Follett cooperated with subsequent 

investigations. Id. at 931. 

Because KRS3 311.990(6) makes it a misdemeanor to impede a State 

Board of Medical Licensure investigator in their administration of KRS Chapter 

311, and because KRS 311.5954empowered the Board to “suspend, limit, restrict, 

or revoke the medical license of a licensee who either engages in unprofessional 

conduct likely to harm the public, or becomes a chronic or persistent alcoholic[,]” 

we determined there was a genuine question of material fact as to whether Follett’s 

communication with the investigator was a statutorily protected activity; had she 

3 Kentucky Revised Statutes.

4 The United States District Court held KRS 311.595 unconstitutional in Eubanks v. Stengel, 28 

F. Supp. 2d 1024 (W.D. Ky. 1998). Regardless, it was effective at the time Follett was 

published, and provides a helpful analogy to the present case.
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not done so, she would have impeded an investigation in violation of KRS 

311.990(6). Id. at 929-30. A further genuine question existed as to whether Follett 

had engaged in statutorily protected activity because KRS 205.8465(1) requires 

any person to report suspected violations of KRS 205.8451 et seq. – Kentucky’s 

Medicaid fraud and abuse statute – and because KRS 205.8465(3) prohibits an 

employer from discharging an employee who, in good faith, makes a report 

required by KRS Chapter 205. Id.

In the case under review, Appellant avers in his affidavit that he 

refused to falsify business records – conduct proscribed by KRS 517.050 – when 

John Horton directed Appellant to modify an incident report to remove statements 

critical of the Hortons. However, KRS 517.050 states that a person is only guilty 

of falsifying business records where he exhibits “intent to defraud,” and the circuit 

court concluded that the changes John Horton wanted Appellant to make would not 

have constituted a violation of KRS 517.050 because the statute requires such 

intent. We agree. Removal of references critical of the Hortons in an incident 

report – a document internal to TSA – would not have demonstrated an intent to 

defraud had Appellant actually modified the report at John Horton’s direction.

Our review reveals no other instance where Appellant refused to 

engage in purportedly illegal activity when his employer directed him to do so. He 

alleges in his affidavit that grant money requested for canteen repairs and musical 
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instruments was spent otherwise, that insurance proceeds obtained to repair a water 

line were not spent on that repair, and that John Horton told Appellant he planned 

to obtain a grant for renovations by providing a reason other than renovations in 

order to more easily obtain the funds. None of these allegations demonstrate 

Appellant actually refused to engage in any illegal activity. Appellant also states 

that John Horton instructed him to provide financial reports in a format that Horton 

could edit; even assuming that John Horton did so in order to fraudulently 

misrepresent the financial state of the Paducah Corps, Appellant did, as he admits, 

provide the reports to Horton in an editable format. Presuming, arguendo, the 

activity was illegal, Appellant’s mere observation or acquiescence in the activity

will not satisfy the refusal exception. 

Regarding the protected activity exception, Appellant argues the 

Kentucky Whistleblower Act, KRS 61.102 et seq., protects him from reprisal for 

his internal complaints of suspected illegal or unethical actions at TSA. However, 

“[t]he Kentucky Whistleblower Act protects public employees who report 

perceived misconduct[,]” Workforce Development Cabinet v. Gaines, 276 S.W.3d 

789, 791 (Ky. 2008) (emphasis added), and, therefore, does not apply to 

Appellant’s employment with TSA. See also Vonderhaar v. AT&T Mobility 

Servs., LLC, 372 F. Supp. 3d 497 n.16 (E.D. Ky. 2019), superseded by Vonderhaar 

v. AT&T Mobility Servs., LLC, No. 2:17-CV-114 (WOB-CJS), 2019 WL 1120117, 
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at *1 (E.D. Ky. Mar. 11, 2019), affirmed by Vonderhaar v. Waymire, 797 F. App’x

981 (6th Cir. 2020) (“Vonderhaar also lacks a right of action under Kentucky’s 

whistleblower statute because that provision only covers public 

employees, see KRS § 61.102, and the protection has not been extended to private 

employees.”). The Kentucky Whistleblower Act is unlike the statutes in Follett 

that granted Follett access to the protected activity exception because those statutes 

encompassed Follett and her employment at the hospital. See Follett, 229 S.W.3d 

at 929.

Because Appellant did not engage in any protected activity or refuse 

to engage in conduct at the direction of his employer which would constitute a 

violation of the law, we need not evaluate any claimed improper motive of the 

Hortons. We conclude, therefore, the circuit court did not err in granting summary 

judgment in favor of Appellees on Appellant’s wrongful termination claim.

II. Retaliation.

Second, Appellant challenges the circuit court’s summary judgment as 

to his retaliation claim. Appellant invites us to expand the public policy exception 

to wrongful termination, discussed supra, to include retaliatory conduct other than 

outright termination. We decline this invitation. Further, we agree with Appellees 

that, because Appellant did not present this argument to the circuit court, he failed 
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to preserve this argument for this Court’s review. Accordingly, we will not disturb 

the circuit court’s summary judgment on this issue. 

III. Defamation.

Appellant next argues the circuit court erred in granting summary 

judgment as to his defamation claim. According to Appellant, the Hortons made 

defamatory statements about him during an April 2019 meeting of the Paducah 

Corps’ Advisory Board. During the meeting, John Horton updated the Board 

about an ongoing TSA audit. The meeting minutes reflect John Horton informed 

the Board that coding errors in the Corps’ general ledger caused items to appear on 

the audit’s exception list. He also stated that none of the cited exception items 

were major, and Horton never mentioned Appellant by name. Regardless, 

Appellant argues John Horton attributed the errors to Appellant and, therefore, 

impugned Appellant’s skills as an accountant.

To prevail on a defamation claim, a plaintiff must establish each of 

four elements: “‘(a) a false and defamatory statement concerning another; (b) an 

unprivileged publication to a third party; (c) fault amounting at least to negligence 

on the part of the publisher; and (d) either actionability of the statement 

irrespective of special harm or the existence of special harm caused by the 

publication.’” Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 282 (Ky. 2014) 

(quoting RESTATEMENT (SECOND) OF TORTS § 558 (AM. L. INST. 1977)). 
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However, to merely imply that an individual may have erred in their 

job does not constitute defamation. “Speech is defamatory if it tends to ‘(1) bring 

a person into public hatred, contempt or ridicule; (2) cause[s] him to be shunned or 

avoided; or, (3) injure[s] him in his business or occupation.’” Doe v. Coleman, 

436 S.W.3d 207, 210 (Ky. App. 2014) (quoting Yancey v. Hamilton, 786 S.W.2d 

854, 858 (Ky. 1989)). As far as the minutes of the Advisory Board meeting reveal, 

nothing John Horton said at the meeting rises to the level of defaming Appellant, 

especially considering Horton noted that the issues were not major and never 

mentioned Appellant by name. We, therefore, find no error in the circuit court 

granting summary judgment on Appellant’s defamation claim.

IV. Promissory Estoppel.

Finally, Appellant argues the circuit court erred in granting summary 

judgment on his promissory estoppel claim. Appellant asserts Appellees made 

multiple promises that he would not experience negative consequences for 

reporting perceived illegal or unethical acts. For instance, Appellant states in his 

affidavit that Love told him he would experience no adverse employment 

consequences for submitting his retaliation complaint. He also argues that the TSA 

Employee Manual’s provisions safeguarding whistleblowers constitutes a promise 

that he would not suffer reprisal for his internal reports.
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Under the doctrine of promissory estoppel, “‘[a] promise which the 

promisor should reasonably expect to induce action or forbearance on the part of 

the promisee or a third person and which does induce such action or forbearance is 

binding if injustice can be avoided only by enforcement of the promise.’” Meade 

Const. Co. v. Mansfield Com. Elec., Inc., 579 S.W.2d 105, 106 (Ky. 1979) (quoting 

RESTATEMENT (SECOND) CONTRACTS, § 90 (AM. L. INST. 1981)). In this case, 

Appellant began reporting perceived impropriety in February 2019, which was 

months before Love told Appellant he would not experience adverse consequences 

because of expressing his concerns to Thompson. Appellant says in his brief that 

when Appellant and Thompson met in person to discuss Appellant’s ADA request

and his other concerns, Appellant relied on the provisions of the TSA Employee 

Manual as a promise that he would not experience adverse employment effects due 

to his emails to Thompson or his retaliation complaint. However, we find no case 

law demonstrating that an employee manual can constitute a promise for the 

purpose of a promissory estoppel claim. This case will not be the first unless a 

higher court makes it so.

Thus, it cannot be said that any promise induced Appellant to act in a 

manner he would not have acted otherwise. Accordingly, we find no error in the 

circuit court’s decision to grant summary judgment on Appellant’s promissory 

estoppel claim.
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CONCLUSION

For the foregoing reasons, we affirm the McCracken Circuit Court’s 

April 8, 2022 Memorandum and Order.

ALL CONCUR.

BRIEFS FOR APPELLANT:

William Winchester, pro se

Paducah, Kentucky

BRIEF FOR APPELLEES:

Megan R. U’Sellis

Louisville, Kentucky