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In re Hickey

Supreme Court of Kentucky

February 15, 2018



          COUNSEL FOR APPELLANT: Robyn Rochelle Smith ABNEY & MCCARTY, PLLC Vanessa Lynn Armstrong Clerk, U.S. District Court

          COUNSEL FOR APPELLEE: Kathryn Ann Quesenberry Matthew Warren Barszcz Jeremy Stuart Rogers DINSMORE & SHOHL, LLP




         By order entered August 17, 2017, this Court granted the United States District Court, Western District of Kentucky's request for certification of law on the following issue:

May a plaintiff bring a private right of action under KRS[1] 446.070 against an employer for an alleged violation of KRS 341.990(6)(a), Kentucky's criminal prohibition against making false statements during unemployment proceedings?

         After careful consideration, we hold that such an action is cognizable in Kentucky.

         KRS 446.070, commonly known as Kentucky's negligence per se statute, provides: "A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation." Plaintiff Logan Hickey alleges that after General Electric Company ("GE") failed to accommodate his disability and terminated his employment, it falsely told Kentucky authorities ' that he had voluntarily quit. Because of this alleged misrepresentation, Hickey claims his application for benefits initially was denied, and he was deprived of unemployment benefits for some period. After successive appeals, Hickey was awarded full benefits ultimately.

         Hickey brought suit against GE in Jefferson Circuit Court, seeking redress for the harm he suffered due to being temporarily deprived of his unemployment benefits, as well as punitive damages. GE's successor-in-interest, Haier U.S. Appliance Solutions, Inc. ("Haier"), the real party-in-interest, timely removed the case to federal court and moved to dismiss Hickey's KRS 446.070 claim for failure to state a cognizable legal claim.[2]Finding this issue to be a novel one in Kentucky, the federal court denied Haier's motion to dismiss, with leave to re-file the motion depending on the outcome of the certified question.

         I. Background.

         Hickey began working for Haier as a first-shift production line worker in May 2015. During the application process, Hickey represented that he was capable of, and available for, work on any shift. On August 31, 2015, Haier reassigned Hickey to a second-shift position. He worked the second-shift job for several days, but then ceased, claiming that his medication regimen for Attention Deficit/Hyperactivity Disorder ("ADHD") was causing side effects that interfered with his ability to work in the afternoon. After consulting with his doctor, Hickey requested through Haier's human resources department that he ' be placed back on first-shift work. Hickey presented a letter from his doctor explaining the impact shift change would have on his current medication regimen and the possible consequences if the medication was not taken.

         Haier explained to Hickey that no first-shift work was available to which he could be assigned under the terms of a labor agreement, placed him on an unpaid leave of absence, and said it would notify him if first-shift work became available. Hickey claims that Haier gave him a choice: he could either change his medication regimen and resume working second shift, or resign. Eventually, Hickey received a letter from Haier dated October 6, 2015 informing him that his employment was being terminated, effective on that date. By this time, Hickey had been off work for about a month. The letter explained to Hickey that his employment was governed by the Flexible Park Pool agreement between Haier and the union, which required employees in his position to work any shift and rotate positions. The letter noted that Hickey had been advised of this at the time of his employment application and interview.

         Thereafter, Hickey sought unemployment insurance benefits through the Kentucky Unemployment Insurance Commission ("Commission"), with an effective date of September 13, 2015. Haier opposed his application for benefits, informing the Kentucky Division of Unemployment Insurance ("Division") that Hickey had voluntarily quit. The Division denied Hickey's application for benefits, and Hickey appealed. A Division referee conducted an administrative hearing, taking testimony from Hickey and a Haier representative. The Haier representative characterized Hickey's departure as a discharge because Hickey had refused to return to his available second-shift position, and Haier could not unilaterally place ...

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