Breeden v. Exel, Inc.
| Docket Number | Civil Action 3:21-CV-416-CHB |
| Decision Date | 01 December 2021 |
| Parties | DANIEL BREEDEN, Plaintiff, v. EXEL, INC. d/b/a DHL SUPPLY CHAIN USA, Defendant. |
| Court | U.S. District Court — Western District of Kentucky |
This matter is before the Court on Defendant Exel, Inc.'s d/b/a DHL Supply Chain (USA) Motion to Dismiss. [R. 8]. Plaintiff Daniel Breeden filed a Response, [R. 15], and Defendant replied, [R. 16]. Also before the Court is Plaintiff's Motion to Certify Questions of State Law. [R 9]. Defendant filed a Response, [R. 17], and Plaintiff replied, [R. 21]. Both matters are now ripe for a decision. For the following reasons the Court grants Defendant's Motion to Dismiss and denies Plaintiff's Motion to Certify Questions of State Law.
Plaintiff Daniel Breeden alleges he was wrongfully terminated for challenging the lack of workplace safety at the onset of the pandemic. [R. 1, pp. 5-7, ¶¶ 30-57]. As discussed herein, Breeden's wrongful termination claims fit within Kentucky case law like a square peg in a round hole.
Giving Plaintiff the most favorable interpretation of the allegations in his complaint, the Court gleans the following. Breeden began employment with Defendant Exel, Inc. d/b/a DHL Supply Chain (USA) (“DHL”) around January 2020 after DHL acquired a warehouse facility in Louisville Kentucky from Breeden's previous employer. [R. 1, p. 2, ¶¶ 9-10]. By March 2020, Breeden and the other DHL staff began working seven days a week to meet increased production demands. Id. at p. 2, ¶ 11. The COVID-19 pandemic emerged during this time. According to Breeden, the pandemic “caused pronounced concerns for workplace safety and health” amongst colleagues and Breeden's subordinates. Id. at p. 3, ¶ 14. By mid-March, Kentucky Governor Andy Beshear (“Governor”) had issued a series of emergency executive orders to address COVID-19. Id. at pp. 3-4, ¶¶ 18, 20-21.
Breeden was dissatisfied with DHL's response to the pandemic. Id. at p. 3, ¶ 15-20. According to the Complaint, he “warned the company's representatives about legitimate safety concerns in light of the pandemic and the company's unwillingness to adapt to safety guidelines and prevailing executive orders.” Id. at p. 3, ¶ 20. He voiced concerns when a supervisor reported to work ill. Id. at p. 4, ¶ 23. He distributed telephone numbers for compliance entities and government regulators to his colleagues and encouraged them to “stand up to the company's indifferent attitude.” Id. at p. 4, ¶¶ 25-26. On April 7, 2020, DHL terminated Breeden's employment. Id. at p. 4, ¶ 28. Breeden alleges he was fired for conveying concerns to DHL about the company's violations of the Governor's emergency restrictions. Id. at pp. 3-4, ¶¶ 17, 38, 53.
Accordingly, Breeden's two-count Complaint against DHL alleges wrongful termination in violation of: (1) Ky. Rev. Stat. § 338.011 (the Kentucky Occupational Safety and Health Act (“KOSHA”)), Count One; and (2) Ky. Rev. Stat. § 39A.010, Count Two. [R. 1, pp. 5, 7] The Court addresses each complaint in turn.
A pleading that states a claim for relief “must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Pleadings require plausible allegations. See Bell Atl. Corp. v. Twombly, 550 U.S. 554, 557 (2007). A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inferenced that defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When a complaint is attacked by a 12(b)(6) motion to dismiss, the court must “construe [the] complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of [their] claim that would entitle . . . relief.” Hall v. Callahan, 727 F.3d 450, 453 (6th Cir. 2013). However, these principles are inapplicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. Nor does an “unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not “shown”-“that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Under Kentucky law, an employer may generally terminate its relationship with an employee at will. See Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 731 (Ky. 1983). However, Kentucky law provides a common-law wrongful termination cause of action when the discharge is contrary to a fundamental and well-defined public policy that is evidenced by a constitutional or statutory provision. Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985). The well-defined public policy must provide statutory protection to the worker in the employment situation - that is, there must be an employment-related nexus that forms the basis of the well-defined cause of action for wrongful termination. Id. at 402. Kentucky “[c]ourts have limited an employee's claim for wrongful discharge to situations where the employer was retaliating against the employee for 1) exercising a right conferred by a well- established legislative enactment or 2) for refusing to violate a statutory or constitutional provision. Wiseman v. Whayne Supply Co., 359 F.Supp.2d 579, 591 (W.D. Ky. 2004) aff'd, 123 Fed.Appx. 699 (6th Cir. 2005). The question of whether there is an actionable public policy foundation is a matter of law for the Court to determine. Grzyb, 700 S.W.2d at 401.
Breeden's two counts seek to establish the requisite actionable public policy foundation by arguing that DHL discharged him for exercising a right protected through legislative enactment. In Count One, Breeden attempts to bootstrap his wrongful termination claim to the broad public policy described in KOSHA. [R. 1, p. 5, ¶ 31]. Specifically, he argues that KRS § 338.031 conferred a right to insist on a safe work environment, and this protected activity could not be the basis for his discharge. Id. p. 6, ¶ 35. Notably, Breeden is solely concerned with the rights created by the policy of KOSHA and not the remedies provided in the statute. See Id. Further, Breeden argues that KOSHA “does not supply a remedy for an employer's violation or retaliation, so KRS 446.070[1] is the proper avenue for relief.” Id. at p. 6, ¶ 37.
In Count Two, Breeden argues that DHL wrongfully terminated his employment due to his complaints regarding workplace safety. Id. at p. 8, ¶ 52. Breeden claims this right is protected by a “well-established legislative enactment.” Id. The Complaint suggests KRS 39A.010 is the well-established legislative enactment, and the policy found therein provides protected activity that sustains Breeden's claims. Id. at pp. 7-8, ¶¶ 48-51.
Albeit for different reasons, Breeden's Complaint fails to state a claim. The Court dissects the two counts in Breeden's Complaint to explain why his wrongful termination claims are denied.
Breeden fails to state a claim under Count One because KOSHA preempts a common-law wrongful termination claim. The aforementioned “at-will exception does not apply when the statute creating the public policy exception also provides the structure for pursuing a claim.” Hines v. Elf Atochem N. Am., Inc., 813 F.Supp. 550, 552 (W.D. Ky. 1993) (). In Grzyb, the respondent brought a wrongful termination claim alleging his employer discriminated against him on the basis of sex. Grzyb, 700 S.W.2d at 401. The Kentucky Supreme Court dismissed respondent's claim because the statute declaring sex discrimination unlawful established the means to adjudicate such complaints. Id. The court stated, “Where the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute.” Id.
Grzyb's holding applies to KOSHA. In Benningfield v. Pettit Env't, Inc., 183 S.W.3d 567, 571 (Ky. Ct. App. 2005), the Kentucky Court of Appeals rejected petitioner's attempt to distinguish KOSHA as “significantly different” than the statute at issue in Grzyb. Id. at 571. The court affirmed that Grzyb's holding applies to all statutes that specify the unlawful act and provide the remedy available to aggrieved parties. Id. KRS § 338.121 provides the remedy for a KOSHA violation:
Any employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of this subsection may, within a reasonable time after such violation occurs, file a complaint with the commissioner alleging such discrimination. Upon receipt of such complaint, the commissioner shall cause such investigation to be made as deemed appropriate.
Ky. Rev. Stat. § 338.121(3)(b). Because KOSHA provided the policy and structured the remedy when pursuing alleged violations, the court held the statute preempted petitioner's wrongful termination claim. Benningfield, 183 S.W.3d at 571.
Additionally this Court has recognized that KOSHA preempts common-law wrongful termination claims premised on violations of the statute. In Hines, the plaintiff alleged her employer terminated her for “not violating OSHA laws, for filing worker's compensations claims, and for refusing to invade employee's right to privacy.” Hines, 813 F.Supp. at 552. In light of Grzyb, the court dismissed the wrongful...
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