Olivo v. Legislative Research Comm'n
| Decision Date | 01 July 2022 |
| Docket Number | 2020-CA-0167-MR |
| Parties | DAISY OLIVO APPELLANT v. LEGISLATIVE RESEARCH COMMISSION APPELLEE |
| Court | Court of Appeals of Kentucky |
NOT TO BE PUBLISHED
BRIEFS FOR APPELLANT: Shane C. Sidebottom Covington, Kentucky Hans G. Poppe Louisville, Kentucky
BRIEF FOR APPELLEE: Paul C. Harnice James D. Allen Sarah J. Bishop Frankfort, Kentucky
BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
Daisy Olivo ("Olivo") appeals from the Franklin Circuit Court's grant of summary judgment to the Legislative Research Commission ("LRC") on her whistleblowing claim. She also appeals from the trial court's allowance of certain legislators to intervene in the lawsuit. As the intervention issue is moot, and Olivo failed to make a prima facia case that disclosures of improper activity were contributing factors in a personnel action, we affirm.
In January 2016, Olivo was hired as a partisan communications staffer by Representative Jeff Hoover ("Hoover") then the Minority Floor Leader of the Kentucky House of Representatives. In January 2017, as the Republican Party became the majority party, Hoover became Speaker of the House and Olivo was promoted to Communications Director for the Republican majority. Olivo admits that she was an at-will employee who served at the pleasure of the Speaker of the House, but she was on the payroll of the Legislative Research Commission.
As Communications Director, Olivo served as the primary media contact for the Speaker's office and also served Republican leadership and House members as directed. She also supervised staff members, including one known for purposes of this case as Jane Doe ("Doe").
Beginning in 2016, Olivo perceived the development of a flirtatious and unprofessional relationship between Hoover and Doe. She spoke with Doe about the situation. She reported her observations in 2016 to then Chief of Staff for Minority Leader Hoover Brad Metcalf. In 2017, she made further reports to the Chief of Staff for then Speaker of the House Hoover, who was also her own supervisor, Ginger Wills ("Wills").[1] Though Olivo perceived the relationship between Hoover and Doe to be inappropriate, she believed it was consensual based on her conversations with Doe at the time.
Doe took approved military leave for a few months during the spring and summer of 2017. In August 2017, Doe spoke with Olivo and told her that Doe's relationship with Hoover was not consensual. According to Olivo, Doe also alleged that Wills was hostile to Doe due to Doe's relationship with Hoover.
After returning from military leave in early October 2017, Doe expressed concerns to Olivo about alleged harassment. And on October 16, Doe told Olivo that she (Doe) had made a settlement demand on Hoover and other legislators. Doe showed Olivo her demand letter and text messages exchanged with Hoover.
On October 25, 2017, Doe and her counsel attended a mediation with Wills, Hoover, and other legislators where a settlement was reached. Olivo did not participate in the mediation. Olivo states that she first became aware that a settlement was reached when a reporter contacted the Speaker's office to ask for details about the settlement.
Apparently, the fact that a settlement had taken place quickly became a matter of public knowledge:
(Judgment, page 3.) The Chief Clerk of the House of Representatives contacted LRC to inquire about the settlement on October 26. On October 27, screenshots of text messages allegedly sent by Hoover were released via a Twitter account falsely represented to be Hoover's account. By November 1, "major media outlets were reporting that Speaker Hoover had entered into a confidential agreement related to sexual harassment allegations with an LRC staffer." (Judgment, pages 3-4.)
Meanwhile, Olivo and Doe had spoken on or about October 26. Olivo asserted that Doe relayed messages to her, warning Olivo to stop talking about the harassment or related matters and further warning that Hoover and Wills sought to fire Olivo. Also on October 26, in an email to Wills, Olivo expressed concern about Doe being harassed and feeling fearful of returning to work. Wills responded to the email saying that any employees should bring any concerns about harassment to her (Wills). Olivo perceived this as less than helpful since she believed Wills was involved in harassing those reporting alleged misconduct.
Around October 27, Olivo called the Executive Director of LRC to report that Hoover and Wills were covering up a confidential settlement for sexual harassment. Also, around this date, Olivo sent email correspondence to LRC officials (including general counsel and human resources director) to report sexual harassment and potential liability of LRC and Doe's fears of returning to work.
On November 1, 2017, Olivo met with the LRC human resources director and LRC general counsel for several hours. She disclosed information from Doe about the inappropriate relationship with Hoover and the confidential settlement and attempt to keep the settlement secret. She also reported that Wills was creating a hostile work environment for Doe.
On November 2, Olivo received an email from Wills advising Olivo, "Per conversation with Speaker, please direct all media inquiries for Speaker Hoover to Tommy Druen until further notice." (Record ("R."), p. 615.) According to Wills' deposition testimony, this was because Wills received a report on October 30 that Olivo had contacted the media seeking publication of stories about Hoover and the sexual harassment allegations. Olivo disputes this, contending this was retaliation for her disclosure to LRC officials - pointing to the timing of Wills' email coming just a day after her meeting with the LRC human resources director and general counsel.
On November 5, Hoover resigned as Speaker and Representative David Osborne became Acting Speaker. On November 7, 2017, a staffer for Osborne sent out an email stating, "Per conversation with Speaker Pro Tem Osborne, all media inquiries received will now be directed to Daisy Olivo until further notice." (R., p. 384.) Olivo, however, in her deposition alleged that although she continued to be paid, kept her benefits, and kept her title, she was effectively not allowed to do anything and was ostracized from early November 2017 until her eventual termination a year later.
In December 2017, Olivo filed a lawsuit asserting claims under the Kentucky Whistleblower Act ("KWA") codified at Kentucky Revised Statute ("KRS") 61.101 et seq. Her complaint further set forth allegations that she met again with LRC's human resources director and general counsel in mid-November and reported that Wills continued to create a hostile work environment. She asserted that various legislators attempted to intimidate her, including one legislator surreptitiously photographing her and a co-worker. Her complaint also detailed her attempt to meet with the House budget director to discuss pending legislation and her perception that communications staff were being given no information and thus could not provide communications assistance to majority caucus members. And she asserted that the House budget director, Frank Willey, made disparaging comments about her.
Olivo alleged retaliation by Hoover and Wills by removing her job duties for reporting official misconduct. She requested relief including a jury trial, compensatory and punitive damages, and attorney's fees.
Sometime after the inception of the lawsuit and depositions taken, Hoover and other legislators filed a motion to intervene in this action to protect their reputations and cross-examine witnesses. The trial court allowed the intervention. The intervening legislators sought to depose Doe, but they agreed to continue the deposition until after the November 2018 election. Ultimately, the intervenors never took the deposition.
David Osborne was formally elected the Speaker of the House in early November 2018. On or about November 30, 2018, Speaker Osborne replaced Olivo and she was terminated as Communications Director. Olivo successfully sought leave to amend her complaint to include allegations of additional retaliation including her termination. An agreed order was entered for the intervening legislators to be dismissed from the action in October 2019 - after LRC had filed a motion for summary judgment.
The trial court expressed concerns about separation of powers and ordered supplemental briefing on the issue. Ultimately, the trial court granted LRC's motion for summary judgment.
The trial court found, for purposes of the KWA, the following that the LRC is a division of the state; that Olivo, as an employee of the LRC, was an employee of the state; and that Olivo had made a good faith disclosure of a suspected violation of state or local law to an appropriate body. But it further found that there was no evidence that the LRC had any knowledge or involvement in the re-assignment of Olivo's duties or the other retaliatory actions complained of by Olivo. Therefore, Olivo could not make a prima facia case for one of the necessary elements required to show a violation of KRS 61.102. The trial court further determined that it would overstep its bounds under constitutional separation of powers provisions if it reviewed a Speaker's personnel decisions regarding...
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