Bogart v. University of Kentucky
MEMORANDUM OPINION & ORDER: IT IS ORDERED that Defendant, University of Kentucky's Motion to Dismiss Count I of Plaintiff's Amended Complaint 17 is GRANTED. Signed by Judge Joseph M. Hood on 1/27/2017.(KM)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
UNIVERSITY OF KENTUCKY,
Civil Case No.
MEMORANDUM OPINION & ORDER
This matter is before the Court upon Defendant’s Motion to
Plaintiff has filed a Response [DE 20], stating his opposition
to the Motion to Dismiss, and Defendant has filed a Reply [DE
21] in further support of its Motion. This motion is now ripe
for consideration and, for the reasons stated below, will be
In his Amended Complaint, Plaintiff avers that he was hired
on June 16, 2014, to work as a Senior Research Assistant to a
University of Kentucky faculty member, Dr. Ai-Ling Lin. Dr. Lin
performed Magnet Resonance Imaging studies in small animals and
neurodegenerative disorders. As part of her research, Dr. Lin
caloric deprivation on metabolic markers in the brains of mice,
paying more than $20,000 from a federal grant from the National
Institute of Aging/National Institute of Health for this study.
Plaintiff’s main project was to analyze all of the Metabolon
physiological pathways involved in calorie restriction. During
his work, Plaintiff avers that he recognized serious flaws in
discovery and raised concerns with Dr. Lin about the quality of
the Metabolon report, the imputation of missing values, and the
large number of outliers.” Plaintiff avers that Dr. Lin was
“increasingly agitated with [him] as he raised integrity issues
with the Metabalon data and attempted to determine how to handle
the outliers in the data.” According to the Amended Complaint,
Dr. Lin would yell at and speak to Plaintiff in a disrespectful
tone. After Plaintiff told Dr. Lin of his concerns about the
data, he avers that she then directed him to utilize the data
Plaintiff began to worry that, if the research paper was
published as planned, with him listed as first author, and if
anyone found out that the statistics that the metabolic pathways
were based on were “fraudulent,” he would be subject to criminal
liability. He told Dr. Lin of these concerns during a meeting in
Shortly after that meeting, Plaintiff was absent from the
workplace for a medical appointment. Upon his return, Dr. Lin
asked him about his diagnosis and revealed to her that he had
Tourette’s Syndrome. After he pointed out to her that he needed
relaxed and quiet conditions to perform his work due to his
condition, Dr. Lin began yelling at and harassing Plaintiff on a
daily basis about trivial matters. On August 26, 2014, Dr. Lin
issued an oral warning to Plaintiff, requesting that he make
employment on September 4, 2014, even though he avers that he
had not had an opportunity to make the improvements required by
the warning. He avers that a similarly situated but non-disabled
research assistant was treated more favorably than him.
Count I of Plaintiff’s Amended Complaint avers a violation
of the Kentucky Whistleblower Act, KRS 61.101, et seq. In its
complaining to one’s supervisor about that supervisor’s behavior
“disclosure” for the purposes of the act. The Court agrees that,
on the facts averred, complaining directly to Dr. Lin was not a
Plaintiff’s claim must be dismissed as a matter of law. See
Pennyrile Allied Comm. Servs., Inc. v. Rogers, 458 S.W.3d 339
favorable to the plaintiff and “must accept as true well-pleaded
Chandler, 364 F.3d 671, 680 (6th Cir. 2004) (internal quotation
contain sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face.” Ashcroft v.
defendant is liable for the misconduct alleged. Id.
It is unlawful in Kentucky for an employer to “subject to
reprisal, or directly or indirectly use, or threaten to use, any
official authority or influence, in any manner whatsoever, which
authority, or a substantial and specific danger to public health
61.102(1), occurs when a state employee “in
good faith reports, discloses, divulges, or
otherwise brings to the attention of ...
[an] 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 ... or any facts
suspected mismanagement, waste, fraud, abuse
of authority, or a substantial or specific
danger to public health or safety.”
Univ. of Louisville v. Harper, No. 2014-CA-000668-MR, 2016 WL
6134908, at *2 (Ky. Ct. App. Oct. 21, 2016). Further,
In order to demonstrate a violation of KRS
61.102, an employee must establish the
following four elements: (1) the employer is
an officer of the state; (2) the employee is
employed by the state; (3) the employee made
or attempted to make a good faith report or
disclosure of a suspected violation of state
or local law to an appropriate body or
authority; and (4) the employer took action
or threatened to take action to discourage
KRS 61.102(1) addresses reporting or disclosure to “the Kentucky Legislative
Ethics Commission, the Attorney General, the Auditor of Public Accounts, the
Executive Branch Ethics Commission, 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.”
the employee from making such a disclosure
or to punish the employee for making such a
Davidson v. Commonwealth, 152 S.W.3d 247, 251 (Ky. Ct. App.
2004) (citing Woodward v. Commonwealth, 984 S.W.2d 477, 480-81
evidence that “the disclosure was a contributing factor in the
personnel action.” KRS 61.103(3). The state employer must then
“prove by clear and convincing evidence that the disclosure was
not a material fact in the personnel action.” Id.
“The Kentucky Whistleblower Act serves the remedial purpose
that is concealed or not publicly known, and who step forward to
S.W.3d at 255 (quoting Meuwissen v. Dep't of Interior, 234 F.3d
9, 13 (Fed. Cir. 2000)). The Supreme Court of Kentucky has held
whistleblower’s own agency. Workforce Dev. Cabinet v. Gaines,
appropriate body or authority’ should be read to include any
public body or authority with power to remedy or report the
perceived misconduct,” including an employee’s own agency or the
larger department or cabinet in order to avoid an absurd result
of punishing employees who choose to first make an internal
report of wrongdoing).
whistleblower status, and the protections that come with that
status, by simply complaining to [his or] her boss about what
Pennyrile Allied Comm. Servs. , Inc. v. Rogers, 459 S.W.3d 339,
meeting to supervisor about supervisor’s trespass on employee’s
normally viewable as whistleblowing[,]’” and “‘[d]iscussion and
even disagreement with supervisors over job-related activities
“exchange[s] do not serve as a disclosure within the meaning
of KRS 61.102.” Harper, 2016 WL 6134908, at *4 (holding that
money, among other complaints, was not a disclosure warranting
concealed wrongdoing, but only indicated employee’s disapproval
(quoting Horton v. Dep't. of Navy, 66 F.3d 279, 282 (Fed. Cir.
1995) and Willis v. Dep't. of Agric., 141 F.3d 1139, 1143 (Fed.
Plaintiff’s claim under the Act fails as a matter of law because
he did not seek to disclose his supervisor’s alleged misconduct
– a decision to rely on data that was somehow fraudulent in
conducting and reporting on research – to anyone other than his
claim is based solely on comments and concerns related to Dr.
Lin about her election to rely on certain data in conducting and
reporting on research. Whether her election to do so constitutes
alleged wrongdoing cognizable under the Act and whether there is
a causal connection between Plaintiff’s complaint and Dr. Lin’s
decision to terminate his employment, Plaintiff does not allege
that he disclosed his concerns to any other person or entity.
Much as in Pennyrile, because Plaintiff spoke only to Dr. Lin,
he had no “intent. . . to reveal or impart what is known to the
employee to someone else who lacks that knowledge and, . . .
[was] in a position to do something about it.” Id. at 345. The
Court sees no reason to distinguish this situation from that
presented in Pennyrile or, for that matter, Ross or Harper.
dissent in Pennyrile, which Plaintiff urges the Court to adopt
as the law of the case: “[W]hat more direct authority can there
supervisor was directly responsible for his own conduct, and
Servs., Inc., 459 S.W.3d at 348. However, even if Dr. Lin was
the most appropriate authority to resolve the issue because she
was Plaintiff’s supervisor, as Plaintiff urges, the law of the
Commonwealth of Kentucky does not support the conclusion that
Plaintiff proposes, a conclusion with which Plaintiff tacitly
agrees when he argues Justice Noble’s dissent in Pennyrile.
When the well-pleaded facts in the Amended Complaint are
plausible on its face and fails as a matter of law for the
reasons stated above. Count I of the Amended Complaint shall be
Dismiss [DE 17] is GRANTED.
This the 27th day of January, 2017.
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