Workforce Development Cabinet v. Gaines

*791Opinion of the Court by

The Kentucky Whistleblower Act protects public employees who report perceived misconduct to certain state entities, or to “any other appropriate body or authority.” The issue in this case is whether “any other appropriate body or authority” includes the whistleblower’s own agency. We hold that it does.

Since 1972, and until her recent retirement, Appellee Mary C. Gaines worked for the Appellant, the Jefferson County office of the Division of Unemployment Insurance, Department for Employment Services, Kentucky Workforce Development Cabinet (Cabinet). Despite her advancement from office assistant to auditor, Gaines stated that she had difficulty in a department dominated by men: she was paid less than men and asked to do menial tasks.

These issues resulted in Gaines filing a gender discrimination and retaliation suit against the Cabinet in 1998, which she and the Cabinet eventually settled. According to Gaines, after her gender discrimination suit, her work environment deteriorated. According to the Cabinet, in February of 2002, the Cabinet informed Gaines that some auditors would be transferred from the downtown Louisville office to the Preston Highway office. Ralph Hunt, Gaines’s supervisor, informed her in the summer of 2002 that she would be transferred. The Preston Highway office is generally known as the “penal colony,” and many auditors view being transferred there as punishment. Gaines expressed her objection to the transfer. In November 2002, Gaines filed a second lawsuit against the Cabinet claiming gender discrimination and retaliation as a result of her deteriorating work environment.

According to Gaines, on February 6, 2003, she witnessed Hunt and Pete Sears, an employee from Covington, throwing away confidential and proprietary information into a publicly accessible dumpster. The information came from the offices of Howard Founder, John Murphy, Pat Zoll, and Shirley Lyle. Gaines stated that, due to the confidential nature of many documents in her Division, standard procedure was to use “burn boxes” to send documents to Frankfort to be shredded and destroyed. Therefore, throwing documents into a dumpster attracted Gaines’s attention. In addition, both Founder and Lyle were retirees involved in litigation against the Cabinet. Gaines believed that the purged documents were confidential and had bearing on pending gender discrimination litigation.

Gaines contacted her attorney, J. Keith Smith, and asked him to report the document purge. On Thursday, February 6 (the same day Gaines witnessed the purging of the documents), Smith contacted Cabinet attorney Greg Higgins, who contacted Department for Employment Services Commissioner James F. Thompson. Thompson conducted an investigation, but concluded that there was no wrongdoing.

On Monday, February 10, two working days later, Gaines received notice that she was being transferred to the Preston Highway office. Gaines stated that four managers collectively presented her with a letter from Commissioner Thompson, informing Gaines of the move. Gaines also stated that Hunt barred her from the downtown office and took away her keys and security card. On March 5, 2003, Gaines amended her complaint to include a whistleblower claim under KRS 61.102. Gaines argued that she was transferred to the Preston Highway office as retaliation for reporting the document purge.

The Franklin Circuit Court granted summary judgment to the Cabinet on *792Gaines’s whistleblower claim and her gender discrimination claim. A jury found for the Cabinet on the retaliation claim. Gaines appealed from the circuit court’s grant of summary judgment on the whis-tleblower claim, and the Court of Appeals reversed. The Court of Appeals concluded that the Cabinet was not entitled to a judgment as a matter of law, because an internal report to the Cabinet qualifies as a report to “any other appropriate body or authority” under KRS 61.102 (the Kentucky Whistleblower Act). This appeal by the Cabinet followed, and this Court granted discretionary review.

The Kentucky Whistleblower Act, codified at KRS 61.101 et seq., provides as follows:

No employer shall subject to reprisal, or directly or indirectly use, or threaten to use, any official authority or influence, in any manner whatsoever, which tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the Kentucky Legislative Ethics Commission, the Attorney General, the Auditor of Public Accounts, the General Assembly of the Commonwealth of Kentucky or any of its members or employees, the Legislative Research Commission or any of its committees, members or employees, the judiciary or any member or employee of the judiciary, any law enforcement agency or its employees, or any-other appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance of the United States, the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety. No employer shall require any employee to give notice prior to making such a report, disclosure, or divulgenee.

KRS 61.102(1) (emphasis added). This case is purely a matter of statutory interpretation; statutory interpretation is a question of law, and this Court reviews it de novo. Neurodiagnostics, Inc. v. Kentucky Farm Bureau Mut. Ins. Co., 250 S.W.3d 321, 325 (Ky.2008).

We begin with several general principles of statutory interpretation. In Kentucky, statutes are to be “liberally construed with a view to promote their objects and carry out the intent of the legislature....” KRS 446.080(1). In addition, words and phrases are to “be construed according to the common and approved usage of language” unless a word has a certain technical meaning. KRS 446.080(4). Finally, statutes which are remedial in nature should be liberally construed in favor of their remedial purpose. Kentucky Ins. Guar. Ass’n. v. Jeffers ex rel. Jeffers, 13 S.W.3d 606, 611 (Ky.2000).

The Whistleblower Act’s purpose “is to protect employees who possess knowledge of wrongdoing that is concealed or not publicly known, and who step forward to help uncover and disclose that information.”1 Davidson v. Commonwealth, Dept. of Military Affairs, 152 S.W.3d 247, 255 (Ky.App.2004) (quoting *793Meuwissen v. Dep’t of Interior, 234 F.3d 9, 13 (Fed.Cir.2000)). The Act has a remedial purpose in protecting public employees who disclose wrongdoing. It serves to discourage wrongdoing in government, and to protect those who make it public. The purpose of the Whistleblower Act is clear, and it must be liberally construed to serve that purpose.

KRS 61.102(1) specifically lists a number of bodies and agencies to whom employees may make a protected disclosure, but also protects disclosures to “any other appropriate body or authority.” The Cabinet argues that all entities listed in the statute are “third party entities with investigatory authority for wrongdoing by public agencies.” Therefore, the Cabinet argues, “any other appropriate body or authority” should be limited to entities of this type. However, the entities specifically listed in KRS 61.102(1) are not so narrow.

For example, the statute specifically protects disclosures to any member or employee of the judiciary or the General Assembly. But not every employee possesses investigatory authority. In the ease of the judiciary, it would be inappropriate for a member or employee to take any action at all beyond passing along the information to the proper authority. The list of entities in KRS 61.102(1) is not limited to those with investigatory authority. Instead, the list encompasses those who may have authority to remedy or report perceived misconduct in a particular situation.2

We believe that “any other appropriate body or authority” should be read to' include any public body or authority with the power to remedy or report the perceived misconduct. This interpretation serves the goals of liberally construing the Whistleblower Act in favor of its remedial purpose, and of giving words their plain meaning. Generally, the most obvious public body with the power to remedy perceived misconduct is the employee’s own agency (or the larger department or cabinet).

When a court construes statutory provisions, it must presume “that the legislature did not intend an absurd result.” Commomuealth, Cent. State Hosp. v. Gray, 880 S.W.2d 557 (Ky.1994); see also Renaker v. Commonwealth, 889 S.W.2d 819, 820 (Ky.App.1994), Williams v. Commonwealth, 829 S.W.2d 942, 944 (Ky.App.1992). The Cabinet’s interpretation of the Whis-tleblower Act, however, would lead to just such an absurd result.

The Whistleblower Act actually contemplates internal disclosures when it states that “[n]o employer shall require any employee to give notice prior to making such a report, disclosure, or divul-gence.” KRS 61.102(1). The Cabinet’s argument suggests that, while an employer cannot force an employee to first make an internal report, the employer is free to fire that employee if she chooses to do so. It should be plainly obvious why this is an absurd result.

The Cabinet would have this Court reward an employee who makes a report to an “appropriate” outside entity, but punish the employee who reports internally. External reporting of wrongdoing is certainly valuable. However, minor wrongdoing can often be addressed internally. It would be absurd to punish an employee for reporting thrdugh the proper channels prior to making a report to the legislature, the judiciary, or law enforcement.

*794An internal report is often the logical first step, and in many cases may be the only step necessary to remedy the situation. It seems absurd for a low-level state employee to make a report directly to the Attorney General or Legislative Resource Commission, or to law enforcement or a regulatory body. In the case of minor misconduct, law enforcement or a regulatory body may be without power to remedy the situation.

For example, as Appellee suggests in her brief, it would be absurd for a state mechanic to report misuse of state vehicles directly to the General Assembly, the Attorney General, or others named in KRS 61.102(1). And in such a situation, state or federal law enforcement would have no reason to intervene. Someone within the same agency is the most logical place to begin. Even in the case of more serious misconduct or outright violation of the law, employees may wish to first make an internal report.

The Cabinet warns that our interpretation of the Whistleblower Act could result in public employees using “an internal complaint relating to inefficient paper recycling, excessive use of paper clips, or impoliteness by a supervisor” to insulate themselves from any sort of discipline. However, the Whistleblower Act requires that an employee must make the report or disclosure in good faith. Davidson, 152 S.W.3d at 251. The “savvy public employee” the Cabinet warns us about would not be making his or her report in good faith.

Finally, the Cabinet argues that the Court of Appeals erred by not considering, as an alternative grounds for upholding the summary judgment, Gaines’s failure to establish a causal connection between her reporting the document purge and her transfer to Preston Highway. The Cabinet points to the fact that Gaines had known for some time that sue was tt be transferred to Press . »n Hig‘ way.

Sumir, ¡ry jud; nent is a. -propínate only when “th. re is no genuhie issue a, to any material fact and ... the moving p«rty is entitled to a judgment as a matter of law.” CR 56.03. The moving party must show that “the adverse party could not prevail under any circumstances.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991).

Here, Gaines alleged that she was transferred two working days after she reported the document purge. She also alleged that four managers collectively presented her with a letter informing her of her transfer, and that she was told not to return to the downtown office unless summoned. The evidence in this case presents a genuine issue of material fact as to whether there was a causal connection between Gaines’s report and her transfer. This case also presents a genuine issue of material fact as to the ultimate issue; whether Gaines was retaliated against as a result of her report. These are questions for a jury.

Under the Kentucky Whistleblower Act, a public employee makes a report to an “appropriate body or authority” whenever she makes her report to a public entity with the power to remedy or report the perceived misconduct. Gaines made her report to her own Division, which certainly had the power to remedy the situation. Therefore, it cannot be said that the Cabinet is entitled to a judgment as a matter of law.

For the foregoing reasons, the judgment of the Court of Appeals is hereby affirmed. The partial summary judgment in favor of the Cabinet on the whistleblower claim is vacated and remanded to the Franklin Circuit Court for proceedings consistent with this opinion