REVIEW FROM COURT OF APPEALS CASE NO. 2017-CA-000345-MR
FRANKLIN CIRCUIT COURT NO. 15-CI-00276
COUNSEL FOR APPELLANT: Joshua Stephen Harp Baughman Harp,
COUNSEL FOR APPELLEE: Oliver Barrett Rutherford Smith 85
Debra Marshall, appeals from an order of the Franklin County
Circuit Court granting a motion to dismiss for failure to
state a claim in favor of Appellee, Montaplast of North
America, Inc. The Court of Appeals affirmed the circuit
court. We affirm the decision of the Court of Appeals.
Marshall began employment with Montaplast of North America,
Inc. (Montaplast) on October 19, 1998. She was an at-will
employee and did not have an employment contract. On January
29, 2015, Marshall accurately informed some of her coworkers
that one of their supervisors was a registered sex offender.
On February 3, 2015, after approximately 16 years of
employment, Marshall was terminated by Montaplast. On March
20, 2015, Marshall filed a complaint in Franklin Circuit
Court alleging wrongful discharge in violation of public
policy. She asserted that she was terminated in retaliation
for informing other workers that one of their supervisors was
a registered sex offender, or at the very least that this was
a substantial motivating factor in her termination. She
claimed that the Kentucky Sex Offender Registration Act
establishes a public policy that the sex offender registry
should be open and accessible to everyone. Prior to even
filing an answer, Montaplast filed a motion to dismiss the
complaint under CR 12.02(f) for failure to state a claim
as a matter of law. Montaplast argued that even if Marshall
was terminated for her conversation about the supervisor,
this conversation was not protected under Kentucky public
policy. The Franklin Circuit Court granted Montaplast's
motion to dismiss. The Court of Appeals affirmed the Franklin
Circuit Court. This Court granted discretionary review.
ruling on a motion to dismiss for failure to state a claim
under CR 12.02(f), the trial court should take all of the
allegations in the complaint as true. Morgan v.
Bird, 289 S.W.3d 222, 226 (Ky. App. 2009). "[A]
court should not dismiss an action for failure to state a
claim unless the pleading party appears not to be entitled to
relief under any set of facts which could be proven in
support of his claim." Id. The trial court is
not required to make any findings of fact, and the question
is purely a matter of law. Fox v. Grayson, 317
S.W.3d 1 (Ky. 2010). "Accordingly, the trial court's
decision will be reviewed de novo." Morgan, 289
S.W.3d at 226.
an at-will employee may be discharged "for good cause,
for no cause, or for a cause that some might view as morally
indefensible.". Firestone Textile Co. Div. v.
Meadows, 666 S.W.2d 730, 731 (Ky. 1983) (citing
Production Oil Co. v. Johnson, 313 S.W.2d 411 (Ky.
1958); Scroghan v. Kraftco Corp., 551 S.W.2d 811
(Ky. App. 1977)). However, there is "a narrow public
policy exception" to the terminable-at-will doctrine,
which is subject to the following limitations:
1) The discharge must be contrary to a fundamental and
well-defined public policy as evidenced by existing law.
2) That policy must be evidenced by a constitutional or
3) The 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.
Grzyb v. Evans,
700 S.W.2d 399, 401 (Ky. 1985).
See also Firestone, 666 S.W.2d at 731 (quoting
Brockmeyer v. Dun & Bradstreet, 335
N.W.2d 834, 835 (1983)). 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) ...