RENDERED: SEPTEMBER 9

, 2022; 10:00 A.M.

NOT TO BE PUBLISHED



# Commonwealth of Kentucky

Court of Appeals

NO. 2021

- CA

- 0241

- MR

GRACE PRATER APPELLANT

v. APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N

. BUNNELL, JUDGE

ACTION NO. 14

- CI

- 04757

NDT CARE SERVICES, LLC D/B/A

HOMEPLACE SUPPORT SERVICES APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND M C NEILL, JUDGES.

M C NEILL, JUDGE: In 2014, Appellant, Grace Prater (Prater)

, was employed by

Appellee

, NDT Care Services LLC d/b/a Homeplace Support Services

(Homeplace)

, as a d irect s ervices p rofessional. Her duties included managing adult

individuals with mental and intellectual disabilities. She was hired on an “as

needed” basis to care exclusively for one terminally ill patient, David Witt ( Mr.

Witt)

, at a Homeplace residential home

. While attending to Mr. Witt o n March 28,- 2

-

2014, Prater could not locate his narcotic pain medication. Having mistakenly

concluded that the medication w as either missing or stolen, Prater notified her

Homeplace r esidential m anager, Tricia Caldwell. However, Prater failed to timely

report the incident to the relevant government authorities, which the parties agree

is required under Homeplace ’ s policies and Kentucky law

. Prater and Caldwell

received written reprimands as a result

. 1

Soon thereafter, Mr. Witt was transferred to a different facility due to

his deteriorating condition and requests from his cousin/power of attorney. Mr.

Witt was then transferred back to Homeplace for a brief period before he passed

away. Prater was removed from the work schedule but remained on the

Homeplace roster on an “as needed ” basis

. On October 31, 2014, Prater resigned

from her position at Homeplace. She then filed suit in Fayette Circuit Court

1 In its order, the circuit court cit es to K entucky Revised Statute (KRS) 216 B .165 (1)

, which

requires employee s to report certain deficiencies to the health care provider and permits

reporting to state or federal agencies. See also Hughes v. Norton Healthcare, Inc

. , No. 2019

-

CA

- 0222

- MR, 2020 WL 7295190, at *7 (Ky. App. Dec. 11, 2020), discretionary review denied

(Aug. 18, 2021) (citing authority and clarifying that there is a remedy available under KRS

216 B .165(1) because of KRS 446.070 )

.

The court’s order further provides that “[r]eporting is required upon discovery of

circumstances indicating possible abuse or neglect related to an individual receiving services

under the Kentucky Medicaid Michelle P. Waiver program.” It appears that Mr. Witt received

benefits pursuant to that program. See 907 Kentucky Administrative Regulation (KAR)

1:835(1 1 )(5)(b) 2

.- 3

-

alleging, wrongful discharge

– retaliation

, slander, and outrage

. 2 The circuit court

granted summary judgment in favor of Homeplace. Prater no w appeals to this

court as a matter of right. For the following reasons, we affirm.

STANDARD OF REVIEW

A motion for summary judgment should be granted “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

law.” CR 3 56.03

. The Kentucky Supreme Court further explained this summary

judgment standard in Steelvest, Inc. v. Scansteel Serv ice C enter

, Inc. :

While it has been recognized that summary judgment is

designed to expedite the disposition of cases and avoid

unnecessary trials when no genuine issues of material fact are

raised,

. . . this Court has also repeatedly admonished that the

rule is to be cautiously applied. The record must be viewed in a

light most favorable to the party opposing the motion for

summary judgment and all doubts are to be resolved in his

favor. Even though a trial court may believe the party opposing

the motion may not succeed at trial, it should not render a

summary judgment if there is any issue of material fact. The

trial judge must examine the evidence, not to decide any issue

of fact, but to discover if a real issue exists. It clearly is not the

purpose of the summary judgment rule, as we have often

2 We will refer to the tort o f outrage as a claim for the intentional infliction of emotional distress

(IIED). See Craft v. Rice

, 671 S.W.2d 248 (Ky. 1984) ; Kroger Co. v. Willgruber

, 920 S.W.2d 61

(Ky. 1996)

.

3 Kentucky Rules of Civil Procedure

.- 4

- declared, to cut litigants off from their right of trial if

they have issues to try.

807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). “Because no factual issues

are involved and only a legal issue is before the court on the motion for summary

judgment, we do not defer to the trial court and our review is de novo .” Univ. of

Louisville v. Sharp

, 416 S.W.3d 313, 315 (Ky. App. 2013) (citation omitted). With

these standards in mind, we turn to the applicable law and the facts of the present

case.

ANALYSIS

Prater argues that the circuit court erred in holding no genuine issues

of material fact existed as to her various claims

. For the following reasons, we

disagree. The proper analysis in retaliation cases was aptly summarized in

Kentucky Dep artment of Corr ections v. McCullough :

A claim for unlawful retaliation requires the

plaintiff to first establish a prima facie case of retaliation,

which consists of showing that “(1) she engaged in a

protected activity, (2) she was disadvantaged by an act of

her employer, and (3) there was a causal connection

between the activity engaged in and the [defendant]

employer ’ s act.” Kentucky Center for the Arts v.

Handley

, Ky. App., 827 S.W.2d 697, 701 (1991), citing

De Anda v. St. Joseph Hospital

, 671 F.2d 850, 856 ( [5 th

Cir.] 1982). In a case where there is no direct evidence

of retaliation, as is the case here, the burden of

production and persuasion follows the familiar

McDonnell Douglas [ 4 ] framework. Under this

4 McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).- 5

- framework, after the plaintiff establishes a prima facie

case of retaliation, the burden of production shifts to the

defendant to show a non

- retaliatory reason for the

adverse employment decision that disadvantaged the

plaintiff. Id. After the defendant has met this burden,

“the McDonnell Douglas framework is no longer

relevant.” St. Mary ’ s Honor Center v. Hicks

, 509 U.S.

502, 510, 113 S. Ct. 2742, 2748, 125 L. Ed. 2d 407, 418

(1993). This is because “the McDonnell Douglas

presumption is a procedural device, designed only to

establish an order of proof and production.” Id. at 521,

113 S. Ct. at 2755, 125 L. Ed. 2d. at 425 (emphasis in

original). At this point, the case then proceeds with the

plaintiff having to meet her initial burden of persuading

the trier of fact by a preponderance of the evidence that

the defendant unlawfully retaliated against her. Reeves v.

Sanderson Plumbing Products, Inc.

, 530 U.S. 133, 143,

120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105, 117 (2000).

123 S.W.3d 130, 133

- 34 (Ky. 2003), as modified on denial of reh ’ g (Jan. 22,

2004)

. 5 It is undisputed by the parties that in reporting the allegedly missing

medication, Prater engaged in protected activity and that Homeplace was aware

that she had done so. However, her claim fails to satisfy the remaining elements

necessary to maintain a retaliation claim beyond summary judgment

.

First, Prater alleges that the adverse employment action she suffered

was that her work hours were reduced after Mr. Witt ’ s death

. She does not dispute

that she remained on the employment roster on an “as needed” basis. Notably, she

5 See also

, e.g.

, Colorama, Inc. v. Johnson

, 295 S.W.3d 148, 152 (Ky. App. 2009) ; Brooks v.

Lexington

- Fayette Urb. C ounty Hous. Auth

. , 132 S.W.3d 790, 803 (Ky. 2004), as modified on

denial of reh ’

g (May 20, 2004).- 6

-

has not counter ed Homeplace ’ s argument that she was hired exclusively to care for

Mr. Witt

, which clearly would have resulted in a change in her scheduling after his

death. Furthermore, Prater does not dispute that she resigned from her position

thereafter. Therefore, it is difficult to conclude that any “ real issue exists ” that

would necessitate a trial here. Steelvest

, 807 S.W.2d at 480

.

As to causation, Prater ’ s argument also lacks any genuine issue of

material fact that would negate a judgment as a matter of law in this instance

. It

was Homeplace that originally reprimanded Prater and her supervisor for failing to

timely file the necessary documentation resulting from the medication incident.

Therefore, it does not logically follow that Homeplace would have punished Prater

for reporting the incident for which she was initially reprimanded for not reporting.

In support of her argumen t s, Prater cites to the affidavit of Bobby

King, who is identified in th at document as having “previously worked for

Homeplace.” The affidavit includes a very sparse factual basis and summarily

concludes that “Homeplace took away Grace Prater ’ s hours and terminated her

employment because of her report.” Prater also claims that the “temporal

proximity between Ms. Prater engaging in the protected activity and the adverse

employment action is enough to give rise to a genuine issue of fact on the causal

connection.” In support of her temporal argument

, Prater cites to a responsive

email from a Homeplace official dated April 21

, 201 4

, indicating that Prater was- 7

-

no longer employed by Homeplace. The circuit court was apparently unconvinced

and concluded that “ [ a ] ll evidence in the record

, including Prater ’ s resignation

letter months after the relevant time

- period, is contrary to proof of a wrongful

discharge by Homeplace

. ” (Emphasis added

. ) We find Prater ’ s resignation letter

dated October 31, 2014, to be particularly instructive here. Therein, Prater

explained that she was resigning because she would not be able to attend “training s

necessary for [her] continued employment

. It has been a pleasure working for you

all. ” That same day, Homeplace executed an e mployee a ction f orm noting that

Prater remained eligible for rehire. 6

Even when viewing the evidence in the light most favorable to Prater,

we are inclined to conclude that neither the King affidavit nor Prater ’ s appeal to

temporal proximity create a genuine issue of material fact that would be

appropriate to submit to a jury

. See Steelvest

, 807 S.W.2d at 480 ( “ summary

judgment is designed to expedite the disposition of cases and avoid unnecessary

trials

. . . .”)

. Nevertheless, even if we were to strain the limits of Steelvest in favor

of Prater ’ s prima facie case, the burden would the n shift to Homeplace to present a

lawful alternative reason for the alleged “adverse employment” decision. Then

,

Prater would have to counter with evidence that the stated lawful reason was

6 We note that this form indicated

, without further explanation, that Prater was terminated.- 8

-

“merely a pretext to cover the actual discrimination

. ” Handley

, 827 S.W.2d at 699.

This

, Prater cannot achieve under the evidence p resented

. 7 Our analysis in

McCullough again proves instructive:

To meet her burden of persuasion

, the plaintiff

“must be afforded the opportunity to prove by a

preponderance of the evidence that the legitimate reasons

offered by the defendant were not its true reasons, but

were a pretext for [retaliation].” Reeves [ v. Sanderson

Plumbing Products, Inc.

, 530 U.S. 133, 143, 120 S. Ct.

2097, 2106, 147 L. Ed. 2d 105, 117 (2000)]

. Proof that

the defendant ’ s non

- retaliatory reasons are “unworthy of

credence is simply one form of circumstantial evidence

that is probative of intentional discrimination, and it may

be quite persuasive.” Id. at 147, 120 S. Ct. at 2108, 147

L. Ed. 2d at 119

- 20. Consequently, “a plaintiff ’ s prima

facie case, combined with sufficient evidence to find that

the defendant ’ s asserted justification is false, may permit

the trier of fact to conclude that the employer unlawfully

[retaliated against the plaintiff].” Id. at 148, 120 S. Ct. at

2109, 147 L. Ed. 2d at 120. In other words, a plaintiff ’ s

prima facie case plus proof of a pretext may constitute

sufficient evidence to survive a motion for a directed

verdict.

7 We are aware that the circuit court did not proceed to this burden shifting analysis because it

determined Prater did not satisfy her prima facie case

. However, o ut of an abundance of caution

,

we will proceed with the burden shifting analysis. See Goetz v. Asset Acceptance, LLC :

“ [ T ] he rule in this jurisdiction that the judgment of a lower court can be affirmed

for any reason in the record .” Fischer v. Fischer

, 348 S.W.3d 582, 591 (Ky.

2011). And, “[i]f an appellate court is aware of a reason to affirm the lower

court ’ s decision, it must do so, even if on different grounds.” Mark D. Dean,

P.S.C. v. Commonwealth Bank & Trust Co.

, 434 S.W.3d 489, 496 (Ky. 2014)

(citing Fischer v. Fischer

, 197 S.W.3d 98, 103 (Ky. 2006) (“If the summary

judgment is sustainable on any basis, it must be affirmed .”)).

513 S.W.3d 342, 345 (Ky. App. 2016)

.- 9

- On appellate review, when determining whether

the trial court erred in denying a motion for directed

verdict, the non

- moving party ’ s evidence is taken as true

and the non

- moving party is entitled to all reasonable

inferences that may be made from the evidence. Lewis v.

Bledsoe Surface Mining

, Ky., 798 S.W.2d 459, 461

(1990). When viewed in this light, McCullough ’ s prima

facie case of retaliation plus her proof of pretext were

sufficient to survive Appellants ’ motion for a

directed verdict.

McCullough

, 123 S.W.3d at 134. Although the issue before the Court in

McCullough concerned an appeal from a denial of a directed verdict, we believe

that summary judgment is proper here for the following specific reasons: 1) Prater

was hired on a limited basis ; 2) h er working hours were reduced after her sole

patient was transferred and then died ; and 3) she resigned citing reasons

completely unrelated to her present complaint and was still considered by

Homeplace to be eligible for rehire. Therefore, unlike McCullough

, Prater ’ s prima

facie case of retaliation plus any proof of pretext gleaned from this record would

be in sufficient to meet he r burden at trial. Lastly, we need not belabor Prater ’ s

remaining claims of IIED and slander because she has failed to provide essential

evidential support for those claims that would negate a judgment as a matter of law

in this instance

. Therefore, we affirm the circuit court ’ s summary judgment in

favor of Homeplace.

ALL CONCUR

.- 10

-

BRIEF S FOR APPELLANT:

Laraclay Parker

Lexington, Kentucky BRIEF FOR APPELLEE:

Scott Crosbie

Lexington, Kentucky