Bogart v. University of Kentucky

Filing 22

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
ADAM BOGART,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
UNIVERSITY OF KENTUCKY,
Defendant.

Civil Case No.
16-cv-00255-JMH

MEMORANDUM OPINION & ORDER

***
This matter is before the Court upon Defendant’s Motion to
Dismiss

Count

I

of

Plaintiff’s

Amended

Complaint

[DE

17].

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
granted.
I.
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
humans
examine

coupled
the

with
basic

other

measures

of

pathphysiological

cerebral

function

underpinnings

to
of

neurodegenerative disorders. As part of her research, Dr. Lin

commissioned

a

study

by

Matabolon,

Inc.,

on

the

effect

of

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
data

statistically

and

then

determine

the

biochemical

and

physiological pathways involved in calorie restriction. During
his work, Plaintiff avers that he recognized serious flaws in
the

data

provided

by

Metabolon

and

that

he

“divulged

this

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
anyway.
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

2

liability. He told Dr. Lin of these concerns during a meeting in
July 2014.
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
certain

improvements

to

his

performance.

She

terminated

his

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
Motion

to

Dismiss,

the

University

of

Kentucky

argues

that

complaining to one’s supervisor about that supervisor’s behavior
does

not

constitute

whistleblowing

because

there

was

no

“disclosure” for the purposes of the act. The Court agrees that,
on the facts averred, complaining directly to Dr. Lin was not a
report

for

the

purposes

of

the

Whistleblower

Act

and

that

Plaintiff’s claim must be dismissed as a matter of law. See
3

Pennyrile Allied Comm. Servs., Inc. v. Rogers, 458 S.W.3d 339
(Ky. 2015).
II.
A

motion

Procedure

to

dismiss

12(b)(6)

complaint.

The

tests

court

pursuant
the

views

to

Federal

sufficiency

the

Rule

of

Civil

of

the

plaintiff's

in

the

light

complaint

most

favorable to the plaintiff and “must accept as true well-pleaded
facts

set

forth

in

the

complaint.”

PR

Diamonds,

Inc.

v.

Chandler, 364 F.3d 671, 680 (6th Cir. 2004) (internal quotation
omitted).

To

survive

a

motion

to

dismiss,

a

complaint

must

contain sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face.” Ashcroft v.
Iqbal,

556

Twombly,

U.S.

550

plausibility
allows

the

662,

U.S.
when

544,
the

court

678

to

(2009)
570

(2007)).

plaintiff
draw

(citing

the

pleads

Bell
A

Atl.

claim

factual

reasonable

Corp.

has

facial

content

inference

v.

that

that

the

defendant is liable for the misconduct alleged. Id.
III.
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
tends

to

discourage,

prevent,

interfere

employee

who

in

restrain,

with,

good

coerce,

faith

depress,
or

reports,
4

dissuade,

deter,

discriminate

against

discloses,

divulges,

any
or

otherwise

brings

officials

and

actual

or

to

the

bodies]

suspected

attention

any

facts

of

.

or

mismanagement,

.

.

[certain

information
waste,

public

relative

fraud,

abuse

to
of

authority, or a substantial and specific danger to public health
or

safety.”1

As

recently

explained

by

the

Kentucky

Court

of

Appeals,
Whistleblowing,
as
provided
in
KRS
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
or
information
relative
to
actual
or
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
1

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.”

5

the employee from making such a disclosure
or to punish the employee for making such a
disclosure.

Davidson v. Commonwealth, 152 S.W.3d 247, 251 (Ky. Ct. App.
2004) (citing Woodward v. Commonwealth, 984 S.W.2d 477, 480-81
(Ky.

1998)).

The

employee

must

show

by

a

preponderance

of

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
of

protecting

‘employees

who

possess

knowledge

of

wrongdoing

that is concealed or not publicly known, and who step forward to
help

uncover

and

disclose

that

information.’”

Davidson,

152

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
that

“any

other

appropriate

body

or

authority”

includes

the

whistleblower’s own agency. Workforce Dev. Cabinet v. Gaines,
276

S.W.3d

789,

791

(Ky.

2008)

(reasoning

that

“’any

other

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

6

of punishing employees who choose to first make an internal
report of wrongdoing).
However,

“[a]n

otherwise

at-will

employee

cannot

gain

whistleblower status, and the protections that come with that
status, by simply complaining to [his or] her boss about what
[he

or]

she

perceives

as

his

[or

her

boss’s]

misconduct.”

Pennyrile Allied Comm. Servs. , Inc. v. Rogers, 459 S.W.3d 339,
346

(Ky.

2015)

(holding

that

complaints

made

during

staff

meeting to supervisor about supervisor’s trespass on employee’s
private

property

“‘Criticism

was

directed

not
to

protected

the

activity

wrongdoers

under

themselves

Act).
is

not

normally viewable as whistleblowing[,]’” and “‘[d]iscussion and
even disagreement with supervisors over job-related activities
is

a

normal

part

of

most

occupations’”

such

that

these

“exchange[s] do[] not serve as a disclosure within the meaning
of KRS 61.102.” Harper, 2016 WL 6134908, at *4 (holding that
employee’s

complaint

to

supervisor

over

perceived

waste

of

money, among other complaints, was not a disclosure warranting
protection

under

Act

because

it

did

not

report

or

disclose

concealed wrongdoing, but only indicated employee’s disapproval
of

what

she

considered

supervisor’s

bad

management

decision)

(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.
Cir. 1998)).
7

While
person
raised

his

argues

authority

of

Plaintiff

for

concerns

that

the

with

he

purposes
Dr.

Lin,

made

a

disclosure

of

KRS

61.101

Defendant

to

when

argues

a
he

that

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
supervisor.

The

Court

agrees.

Plaintiff’s

Whistleblower

Act

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.
The

Court

appreciates

the

attraction

of

Justice

Noble’s

dissent in Pennyrile, which Plaintiff urges the Court to adopt
as the law of the case: “[W]hat more direct authority can there
8

be

than

the

person

committing

the

complained-of

act?

The

supervisor was directly responsible for his own conduct, and
thus

is

an

appropriate

authority.”

Pennyrile

Allied

Comm.

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
accepted

as

Whistleblower

true,
Act

Plaintiff’s

fails

to

state

claim
a

under

claim

to

the

Kentucky

relief

that

is

plausible on its face and fails as a matter of law for the
reasons stated above. Count I of the Amended Complaint shall be
dismissed.
Accordingly,

IT

IS

ORDERED

that

Dismiss [DE 17] is GRANTED.
This the 27th day of January, 2017.

9

Defendant’s

Motion

to