RENDERED: MARCH 24, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0011-MR

RYAN MCCOY AND 

SARAH MOYER APPELLANTS 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE LUCY ANNE VANMETER, JUDGE

ACTION NO. 20-CI-03242

THE TEN TEN GROUP, LLC, D/B/A 

WILSON’S GROCERY; CORLAND 

MAPLE; AND HANNAH MAPLE APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CETRULO, DIXON, AND EASTON, JUDGES.

CETRULO, JUDGE: This is an appeal of a Fayette Circuit Court order dismissing 

employees’ claims – before discovery – of wrongful discharge in violation of 

public policy, and defamation.
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FACTS

The circuit court dismissed the complaint of Appellants, Sarah Moyer 

(“Sarah”) and Ryan McCoy (“Ryan”), pursuant to Kentucky Rule of Civil 

Procedure (“CR”) 12.02(f) for failure to state a claim upon which relief can be

granted. For purposes of this appeal, we must accept as true the employees’ 

factual allegations and draw all reasonable inferences in their favor. Pike v.

George, 434 S.W.2d 626, 627 (Ky. 1968). Insomuch, we shall interpret the facts in 

a fashion most favorable to Ryan and Sarah and accept the material facts in the 

complaint as true. Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010).

Appellee Wilson’s Grocery is a small shop offering groceries and 

food preparation services. At the relevant time period, there were only 10 nonmanagement employees. Appellees Corland Maple (“Corland”) and Hannah 

Maple (“Hannah,” collectively, the “Maples”) were the principals in the business,

but did not handle the day-to-day operations. Ryan and Sarah started their 

employment with Wilson’s Grocery in the summer of 2019 and remained in good 

standing at the store until the days prior to their termination.

During the COVID-19 pandemic, business increased at Wilson’s 

Grocery, but pandemic-specific health and safety protocols for the employees were 

either implemented slowly or not at all. Employees used personal funds to 

purchase personal protective equipment and stayed after their paid, working hours 
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to sanitize the store. Employees requested hazard pay and increased safety 

protocols, but these were initially denied by the Maples.

On March 30, 2020, Ryan organized a non-management staff meeting 

to discuss requesting higher hourly pay and additional health and safety measures. 

After the discussion, Ryan drafted a letter – which seven of the 10 nonmanagement staff signed – and Ryan and Sarah emailed the letter to the Maples. 

Upon receipt, the Maples scheduled an all-employee meeting for April 2, 2020.

On April 1, 2020, the Maples informed the staff, via email, of 

possible, upcoming layoffs. The next day, at the April 2 meeting, Corland Maples 

read the staff letter aloud, acknowledged the requests, and invited comments. 

Ryan and Sarah voiced concern about the Maples’ perceived lack of concern for 

workers’ safety and again requested hazard pay. Ryan and Sarah were the only 

employees to speak at that meeting. At the conclusion of the meeting, the Maples

again denied the request for hazard pay, and it is unclear what additional health and 

safety methods were agreed upon.

On April 3, 2020, Ryan filed a complaint with the National Labor 

Relations Board, claiming that the Maples threatened layoffs in retaliation for 
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requesting hazard pay.1 Also that day, Ryan began feeling ill and informed the 

Maples he needed to take unpaid leave to monitor symptoms.

On April 4, 2020, Ryan and Sarah received emails from the Maples 

terminating their employment. The emails claimed the decision was an attempt to 

“scale back” the pandemic workforce and was not due to their conduct.2 Wilson’s 

Grocery also terminated two other employees around that time.

On April 5, 2020, Wilson’s Grocery posted on their Instagram:

We did not fire half our staff. We accommodated two staff 

members that were uncomfortable and at risk so that they 

could continue to receive compensation during this time 

of isolation. We did choose to eliminate a few who had 

bullied our team and made staff and customers alike feel 

uncomfortable.

Elsewhere on the store’s Instagram page, a person who identified 

herself as a parent of a Wilson’s Grocery employee wrote that there was a “petition 

demanding a pay raise that would have bankrupted the business[.]” Additionally, 

the Maples allegedly stated to at least one other unidentified person that Ryan and 

Sarah had been “fired,” described them as “bitter,” and said they were to blame for 

another employee’s discharge.

1

It is not clear from the record what resulted from that complaint, nor whether that or other 

administrative remedies were exhausted.

2 However, according to the complaint, on April 7, Hannah called Sarah and told her she was laid 

off so she could collect unemployment, and because “Ryan was experiencing COVID symptoms, 

and you cohabitate with him, so we can’t have you in the store.”
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Ryan and Sarah then filed a complaint alleging two counts of 

wrongful termination in violation of public policy and one count of defamation. 

Wilson’s Grocery filed a motion to dismiss. The Fayette Circuit Court granted the 

motion, dismissing the complaint before discovery. Ryan and Sarah appealed.

I. STANDARD OF REVIEW

A motion to dismiss is a pure question of law; therefore, a reviewing 

court owes no deference to the circuit court’s determination. Fox, 317 S.W.3d at 7. 

Instead, we review the issue de novo. Id. CR 12.02(f) is designed to test the 

sufficiency of a complaint. Pike, 434 S.W.2d at 627. It is proper to grant a 

CR 12.02(f) motion to dismiss if “it appears the pleading party would not be 

entitled to relief under any set of facts which could be proved in support of his 

claim. . . . Stated another way, the court must ask if the facts alleged in the 

complaint can be proved, would the plaintiff be entitled to relief?” James v.

Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002) (internal quotation marks and 

citation omitted).

II. ANALYSIS

On appeal, Ryan and Sarah assert the circuit court erred in dismissing 

their two wrongful termination claims and one defamation claim. We will discuss 

each in turn.
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A. Wrongful Termination

Under Kentucky law, an employer may ordinarily “discharge his atwill 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) (citation omitted). However, a narrow 

exception is applicable when the discharge was “contrary to a fundamental and 

well-defined public policy as evidenced by [an] existing . . . constitutional or 

statutory provision.” Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985) (citation 

omitted); see also Marshall v. Montaplast of N. Am., Inc., 575 S.W.3d 650, 652 

(Ky. 2019) (emphasis added).

Only three circumstances exist in which a discharge will 

be actionable as contrary to public policy: (1) when there 

are “explicit legislative statements prohibiting the 

discharge,” (2) when “the alleged reason for the discharge 

. . . was the employee’s failure or refusal to violate a law 

in the course of employment,” or (3) when “the reason for 

the discharge was the employee’s exercise of a right 

conferred by well-established legislative enactment.” Hill

v. Kentucky Lottery Corp., 327 S.W.3d 412, 422 (Ky. 

2010) (quoting Grzyb, 700 S.W.2d at 402).

Id. Additionally, “the public policy involved must have an employment-related 

nexus.” Id. (citing Grzyb, 700 S.W.2d at 402).

Here, Ryan and Sarah do not contest the at-will nature of their 

employment. They assert they were discharged because of their “exercise of a 

right conferred by well-established legislative enactment,” which was in 
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contravention of public policy. They contend (i) Kentucky Revised Statute 

(“KRS”) Chapter 338 (“KOSHA”) provides the public policy of protecting 

Kentucky employees’ right to “oppose unsafe workplaces”; and, (ii) KRS 39A 

(“Governor’s Emergency Powers”) provides the public policy of protecting a 

workers’ right to “try to secure [an employer’s] compliance with valid emergency 

orders of the government in times of community danger.”

i. KOSHA (KRS Chapter 338)

Ryan and Sarah argue that KOSHA – Kentucky’s Occupational Safety 

and Health Employees Act – protects employees from retaliation for opposing 

unsafe workplaces. We agree, but those protections are not unlimited.

KOSHA is a fundamental and well-defined public policy. KOSHA, 

by its own words, was enacted to promote the safety, health, and general welfare of 

working Kentuckians. KRS 338.011. The statute mandates employers to furnish a 

place of employment which is free from recognized hazards that are causing or are 

likely to cause death or serious physical harm to employees. KRS 338.031. 

Further, the statute confers a right to employees to request the commissioner to 

conduct an inspection of perceived unsafe or unhealthy work conditions. KRS

338.121(1). KOSHA explicitly prohibits an employee’s discharge for filing a 
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complaint or instituting legal proceedings related to the statute. KRS

338.121(3)(a).3

Here, the letter Ryan and Sarah sent to the Maples could qualify as a 

“complaint” under KOSHA. In 2016, our Kentucky Supreme Court found that an 

employee-to-employer letter complaining about unsafe work conditions could

reasonably be interpreted as a “complaint” under KOSHA. Ky. Occupational

Safety & Health Review Comm’n v. Estill Cnty. Fiscal Ct., 503 S.W.3d 924, 930 

(Ky. 2016). However, that situation involved an employee seeking to utilize the 

rights and remedies within KOSHA. Here, it is unclear from the record if Ryan 

and Sarah initiated any KOSHA steps prior to pursuing their wrongful termination 

claim. It is likely they did not, considering they are arguing that “[w]orkers who 

face public health and safety violations in the workplace are not relegated to filing 

complaints with [KOSHA] and hoping for the best.” Conversely, Wilson’s 

Grocery argues that Ryan and Sarah are bound by the rights and remedies within 

KOSHA, and that KOSHA cannot be the statutory underpinning for a wrongful 

termination claim.

4

3 KRS 338.121(3)(a) states, “No person shall discharge or in any manner discriminate against 

any employee because such employee has filed any complaint or instituted or caused to be 

instituted any proceeding under or related to this chapter or has testified or is about to testify in 

any such proceeding or because of the exercise by such employee on behalf of himself or herself 

or others of any right afforded by this chapter[.]”

4 Wilson’s Grocery relies on Benningfield v. Pettit Environmental, Inc., 183 S.W.3d 567 (Ky. 

App. 2005), an opinion built upon Grzyb, 700 S.W.2d 399. However, we will focus our analysis 
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In 1985, the Kentucky Supreme Court, in Grzyb v. Evans, “explained 

the circumstances in which the doctrine of preemption would block the creation of 

a common law claim for wrongful discharge in violation of public policy.” Hill, 

327 S.W.3d at 421. In Grzyb, a hospital employee filed suit against his hospital 

employer alleging wrongful discharge because he fraternized with a female 

hospital employee. Grzyb, 700 S.W.2d at 400. The employee asserted a claim for

(1) common law wrongful discharge in violation of public policy; and (2) violation 

of his civil rights under KRS 344.040 – both based on sexual discrimination. Id. 

Ultimately, our Supreme Court found that Evan’s common law wrongful discharge 

claim was preempted by the statutory remedies afforded under KRS Chapter 344 

for civil rights violations. Id. at 401. In so finding, the Court stated, “[w]here the 

statute both declares the unlawful act and specifies the civil [remedies] available to 

the aggrieved party, the aggrieved party is limited to the remedy provided by the 

statute.” Id. In 2010, our Supreme Court further explained this rule and Grzyb’s

application of the doctrine of preemption:

Preemption [in Grzyb] was based on the fact that his sex 

discrimination claim was based on the same law as his 

wrongful discharge claim. Grzyb, 700 S.W.2d at 401-402. 

The only “fundamental and well-defined public policy” 

that Evans could articulate to meet the requirement for a 

wrongful discharge claim was the very same public policy 

on the root case (Grzyb v. Evans) and apply the Kentucky Supreme Court’s more recent 

interpretation of Grzyb in Hill, 327 S.W.3d 412.
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embodied in the civil rights statutes of KRS Chapter 344.

Hill, 327 S.W.3d at 421.

The crux of the matter in Grzyb was the fact that both of his claims

depended upon the same statutory language (KRS Chapter 344, sexual 

discrimination) and that statute proved a remedy for a specific unlawful act. In

Hill, the Court clarified that “[w]hen preemption is properly applied, the common 

law claim is subsumed and eliminated by the overriding statutory scheme, and the

remedy, if there is to be one, may only be found under the statute.” 327 S.W.3d at 

423 n.8. The statute that Ryan and Sarah’s wrongful discharge claim is built upon 

(KOSHA) already has a remedy (to file a complaint with the commission, appeal 

to the commissioner, etc.), so a common law wrongful termination claim on those 

same grounds is preempted by the legislature’s development of the remedy in the 

statute. Accordingly, this claim was properly dismissed by the circuit court, and

we affirm.

ii. Governor’s Emergency Powers (KRS Chapter 39A)

Ryan and Sarah argue the Governor’s emergency orders permit 

employees to “oppose flagrant violations of emergency orders designed to defend 

health and safety.” They argue that although executive orders are not statutory or 

constitutional provisions, the Governor’s emergency orders should be given the 

full effect of the law, and we should treat the orders, for purposes of this review, 
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the same as a statutory or constitutional provision. We agree, but still must affirm 

the circuit court on this issue.

On March 6, 2020, the Governor of Kentucky signed Executive Order 

2020-215, declaring a state of emergency in the Commonwealth due to the 

COVID-19 global pandemic. Throughout the rest of 2020, additional executive 

orders and emergency regulations were issued to address the public health and 

safety issues created by the disease. KRS 39A.100 authorizes the Governor to 

declare such a state of emergency, and “KRS 39A.180 mandates that all 

emergency orders and administrative regulations issued by the Governor or any 

state agency shall have the full force of law[.]” Beshear v. Acree, 615 S.W.3d 780, 

787 (Ky. 2020) (internal quotation marks omitted).

Pursuant to the authority in Executive Order 2020-215, the 

Department of Public Health issued an order on March 17, 2020, mandating

public-facing businesses that could not comply with CDC5social distancing 

guidelines to cease all in-person operations. Businesses that provided food, 

grocery, and consumer goods could remain open, but needed to practice CDC

guidelines including, but not limited to, “ensuring employees practice appropriate 

hygiene measures, including regular, thorough handwashing; ensuring that 

5 Centers for Disease Control and Prevention.
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employees who are sick remain home; and regularly cleaning and disinfecting 

frequently touched objects and surfaces.”

Executive Order 2020-246, signed on March 22, 2020, stated that the 

Governor was empowered to exercise powers necessary to promote and secure the 

safety and protection of Kentuckians. The Amicus Curiae brief filed by the 

Kentucky Equal Justice Center6argued that these Executive Orders provided 

employees the “right to be protected, ‘to the fullest extent practicable,’ by 

prescribed measures to slow the spread of COVID-19.”

We agree that the Governor’s orders had7the “full force of the law.” 

Beshear v. Acree, 615 S.W.3d at 787. However, Ryan and Sarah needed to (1) 

point to an explicit statement in the Governor’s orders that prohibited their

discharge; (2) show that their discharge was for a failure or refusal to violate the 

Governor’s orders in the course of employment; or (3) demonstrate that their 

discharge was due to their exercise of a right conferred by the Governor’s 

emergency orders. We can easily dismiss the first two possibilities: Ryan and 

Sarah did not (1) point to any explicit statement in the Governor’s orders

prohibiting their discharge, nor (2) were they discharged for failing or refusing to 

6 The Kentucky Equal Justice Center filed an Amicus Curiae appellate brief on this issue alone.

7 The legislature has since revoked some of the Governor’s powers; however, we apply the law 

as it was written at the relevant time.
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violate the Governor’s orders. They admit that the Governor’s orders “need[] to 

confer rights on employees or seek to protect the public in some way that relates to 

employment,” but they needed to show more than just the existence of an 

employment-related nexus. They needed to show that their discharge was due to

their exercise of a right conferred by the Governor’s emergency orders.

Ryan and Sarah argue that the hygiene and transmission concerns that 

they brought to the attention of Wilson’s Grocery were the same rights conferred 

by the executive orders. They argue that because Wilson’s Grocery had not 

implemented safe systems in the grocery store and food preparation setting, they 

had a right to report those concerns to their employer. “The workplace was not 

safe for [Ryan and Sarah] because of [those hygiene and safety failures], nor was it 

safe for any of [Ryan and Sarah’s] co-workers or the customers they served.” 

However, while we certainly disapprove of firing of employees merely for voicing 

concerns about health and safety, we cannot find a right where none is conferred. 

See Marshall, 575 S.W.3d at 655.

In Marshall, an employee accurately informed some of her coworkers 

that one of their supervisors was a registered sex offender. Id. at 651. Shortly 

thereafter, the employee was discharged and subsequently filed a complaint 

alleging wrongful discharge in violation of public policy. Id. The employee 

claimed that the Kentucky Sex Offender Registration Act established a public 
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policy that the sex offender registry should be open and accessible to everyone. Id. 

However, the trial court granted the employer’s motion to dismiss for failure to 

state a claim; this Court affirmed the decision, as did our Supreme Court.

In Marshall, our Supreme Court found that (a) the objective of the 

Sex Offender Registration Act was to protect the public; (b) information from the 

sex offender registry must be publicly available and publicly disseminated; and (c) 

the Act provides immunity from criminal and civil liability for anyone who 

disseminates information from the registry in good faith. Id. at 655. Yet despite 

this, the Court concluded that the Act did not create a right to engage in an act. Id. 

“The statute must make clear that it intends to protect employees in their

employment situation. As much as we may wish to, this Court cannot, by judicial 

fiat, insert that right into the statutory scheme.” Id. at 656.

Similarly, here, we cannot find an “explicit right” in the Governor’s 

orders – for Ryan and Sarah to challenge Wilson’s Grocery’s handling of health 

and safety regulations – sufficient to satisfy the narrow public policy exception of 

the terminable-at-will doctrine. Ryan and Sarah were not fired for exercising a 

right conferred by the Governor’s executive orders (or well-established legislative 

enactment). Therefore, Ryan and Sarah cannot establish a wrongful termination 

claim in violation of a public policy that created a specific right under KRS
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Chapter 39A. Thus, we need not discuss the existence of an employment nexus. 

Again, we must affirm.

B. Defamation 

The requisite elements of defamation are: (1) false and defamatory

language,

8

(2) about the plaintiff, (3) which is published to a third party, and (4) 

which causes injury to reputation. Columbia Sussex Corp., Inc. v. Hay, 627 

S.W.2d 270, 273 (Ky. App. 1981). “Statements classified as defamatory per se

include those which attribute to someone a criminal offense, a loathsome disease, 

serious sexual misconduct, or conduct which is incompatible with his business, 

trade, profession, or office.” Gilliam v. Pikeville United Methodist Hosp. of Ky.,

Inc., 215 S.W.3d 56, 61 (Ky. App. 2006) (emphasis added) (citation omitted).

Such statements must tend to expose the plaintiff to public hatred, ridicule or 

contempt or disgrace, or induce such an evil opinion of the plaintiff as to deprive 

him of friendship. Id. at 61. Whether an alleged statement constitutes defamation 

per se is a matter of law. Columbia Sussex, 627 S.W.2d at 274.

Ryan and Sarah argue that the Appellees “engaged in . . . an extensive 

propaganda campaign to discredit and harm” them. They asserted that the

8 We use “defamation” throughout this Opinion to include slander (oral defamation) and libel 

(written defamation). “Generally speaking, defamation is simply a claim for injury to one’s 

reputation.” Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 281 n.7 (Ky. 2014).
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statements were (1) a written statement posted on Wilson’s Grocery’s Instagram 

page; and (2) spoken statements by the Maples:

9

Statement 1 (written social media post): “We did not fire 

half our staff. We accommodated two staff members that 

were uncomfortable and at risk so that they could continue 

to receive compensation during this time of isolation. We 

did choose to eliminate a few who had bullied our team 

and made staff and customers alike feel uncomfortable.”

Statement 2 (verbal statement): the Maples stated to at 

least one unidentified person that Ryan and Sarah had been 

“fired,” described them as “bitter,” and represented that 

they had caused another employee’s discharge.

Here, Ryan and Sarah argued that these statements resulted in an 

actionable claim for defamation per se, contending that the statements are false, 

damage their reputation, and challenge their fitness to perform their job. They 

admit that they were not specifically identified in the written statement, but they 

contend the statement complained of (“We did choose to eliminate a few who had 

bullied our team and made staff and customers alike feel uncomfortable.”) can be 

reasonably understood to be about them. However, the complaint also asserted 

that they were told by the Maples that they were not fired but were laid off so they 

could collect unemployment, which was also part of the post above. The 

complaint confirms that other employees were let go as well.

9 Ryan and Sarah argue a third statement was allegedly defamatory, but they admit it was written 

by a “parent of an unidentified employee” of Wilson’s Grocery, not a party to this appeal nor a

representative of Wilson’s Grocery, and therefore not relevant to our review.
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Thus, we first question whether Ryan and Sarah were sufficiently 

identified for purposes of establishing defamation per se. We recognize that 

Wilson’s Grocery is a small local shop and that friends and acquaintances familiar 

with the incident might have reasonably understood it to have been about Ryan and 

Sarah (even before Sarah’s own social media explanation). However, it is not clear 

to this Court that a reader would have known if they were the staff accommodated 

or if they were among the “few” who “bullied” the team. Still, the circuit court did 

consider the allegations in the light most favorable to them, and even “assuming

that the statement was understood to be about Ryan and Sarah”, did not find it to 

be false and defamatory per se.

“A defamatory communication may consist of a statement in the form 

of an opinion, but a statement of this nature is actionable only if it implies the 

allegation of undisclosed defamatory fact as the basis for the opinion.” Yancey v.

Hamilton, 786 S.W.2d 854, 857 (Ky. 1989), citing RESTATEMENT (SECOND) OF

TORTS § 566 (1977)).

The issue is whether the statements are false and tend to injure one in 

his reputation or expose him to public hatred, contempt, scorn, obloquy, or shame.

Stringer v. Wal-Mart Stores, 151 S. W.3d 781, 795 (Ky. 2004), overruled on other 

grounds by Toler, 458 S.W.3d 276. Generally, “[f]alse allegations of unfitness to 

perform a job are per se defamatory.” Estepp v. Johnson Cnty. Newspapers, Inc., 
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578 S.W.3d 740, 744 (Ky. App. 2019) (internal quotation marks and citation 

omitted). However, it is not defamatory to simply state someone was “fired.” Id. 

at 744-45 (citation omitted).10 Stating that someone was discharged for drinking or 

for theft is far different than describing an employee as bitter or a bully as the case 

law illustrates.

We agree with the circuit court that those comments are more in the 

nature of opinion that does not rise to the level of defamation per se. In Desai v. 

Charter Communications, LLC, 381 F. Supp. 3d 774, 784 (W.D. Ky. 2019), a 

federal court applying Kentucky law was faced with an employer who attributed a 

theft of printers to certain employees. The Court reviewed Kentucky case law and 

noted that certain types of statements – including false accusations of theft – are 

presumed to have damaged the plaintiffs’ reputations, and thus no proof of injury 

resulting from such statements is required: they are “actionable per se.” Similarly, 

10 Estepp, 578 S.W.3d at 745, explains: 

[D]efamation has been found in our Kentucky cases in which a statement of discharge 

was combined with an imputation of unfitness. In Louisville Taxicab & Transfer Co. v.

Ingle, 229 Ky. 578, 17 S.W.2d 709, 710 (1929), “[t]he words written on the blackboard, 

‘Ingle discharged for drinking,’ in their ordinary acceptance mean that he was unfit for 

his occupation by reason of his indulgence in drinking.” The Court clarified that 

publication of those words was libelous per se because “they impute unfitness to perform 

the duties of an office or employment, or . . . prejudice a person in his profession or trade” 

by “not only stat[ing] the fact of plaintiff’s discharge, but the reason for it.” Similarly, in

McCauley v. Elrod, 16 Ky.L.Rptr. 291, 27 S.W. 867, 868 (Ky. 1894), the Court held that 

the statement “I discharged Elrod for stealing,” was actionable.
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in Stringer v. 151 S.W.3d at 793, the terminated employees alleged that they were 

falsely painted as thieves.

In contrast, however, more ambiguous statements of opinion “require 

evidence of pecuniary loss arising from the use thereof”; and affirmative proof of 

injury that is actionable without any development of extrinsic facts or 

circumstances. Desai, 381 F.Supp. 3d at 785. For example, we deemed 

ambiguous and opinion language to be unactionable in Foster v. Jennie Stuart 

Medical Center, Inc., 435 S.W.3d 629 (Ky. App. 2013), when two nurses were 

terminated and a publication was made that their termination was in the “best 

interests of the institution.” The allegations of someone bullying another, or being 

bitter, even if proven, simply do not rise to the level required to impute unfitness 

for their profession and are mere opinion statements requiring affirmative proof of 

injury. There was no such evidence or claim contained within the complaint in this 

case.

In summary, the statements complained of are both true (they were 

fired) and are opinion statements that are incapable of being proven objectively 

incorrect, so they are not defamatory per se. Even if the facts alleged in the 

complaint could be proved, the plaintiffs would not be entitled to relief. James v.

Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002). Thus, on this claim as well, 

dismissal was not in error.
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CONCLUSION

The judgment of the Fayette Circuit Court is AFFIRMED as to all 

counts.

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Robyn Smith

Adam Johnson

Louisville, Kentucky

BRIEF FOR APPELLEES THE TEN 

TEN GROUP, LLC, D/B/A 

WILSON’S GROCERY; CORLAND 

MAPLE; AND HANNAH MAPLE:

Robert L. Abell

Lexington, Kentucky 

BRIEF OF AMICUS CURIAE FOR 

KENTUCKY EQUAL JUSTICE

CENTER:

John S. Friend

McKenzie Cantrell

Louisville, Kentucky