Kentucky Whistleblower Act Retaliation Requires a “Materially Adverse” Employment Action (KCRA/Burlington Standard Adopted)

1. Introduction

In Sgt. Kevin Burton; Lt. Frank Chad Taylor; and Sgt. Mike Garyantes v. Kentucky State Police/Commonwealth of Kentucky, the Supreme Court of Kentucky reviewed a Kentucky Whistleblower Act (“KWA”) verdict arising from allegations that the Kentucky State Police (“KSP”) retaliated against three Post 4 officers after they reported “irregularities and thefts of evidence from Post 4.”

The Franklin Circuit Court jury found for the officers and awarded a total of $900,000 in punitive damages. On appeal as a matter of right, the Court of Appeals reversed and remanded for a new trial due to erroneous jury instructions. The Supreme Court granted discretionary review, primarily to address (1) whether KSP preserved (or waived) its jury-instruction challenge, and (2) what the KWA requires a jury to find regarding “personnel action.”

Key Parties

  • Appellants (Plaintiffs below): Sgt. Kevin Burton; Lt. Frank Chad Taylor; Sgt. Mike Garyantes
  • Appellee (Defendant below): Kentucky State Police/Commonwealth of Kentucky

Key Issues

  1. Preservation/Waiver: Did KSP preserve its objection to the final instructions through tendered instructions, or waive it by stating, “We’re not objecting to the final version”?
  2. Substantive KWA standard: Must a KWA plaintiff prove the employer took or threatened a materially adverse employment action, and must the jury be instructed to make that finding?

2. Summary of the Opinion

The Supreme Court of Kentucky affirmed the Court of Appeals’ reversal and remand for a new trial. The Court held:

  • No waiver: KSP preserved its objection under CR 51(3) by tendering instructions that clearly presented its position, and the later statement “We’re not objecting to the final version” did not constitute an intentional relinquishment in context.
  • Instructional error (and guidance on remand): Under the KWA, the jury must be instructed to decide contested elements individually, including whether the employer took or threatened a materially adverse employment action.
  • Newly adopted standard: The Court adopted the KCRA retaliation “materially adverse” standard—i.e., an action that “might well have dissuaded a reasonable worker from making or supporting a charge”—for KWA “personnel actions.”

Justice Thompson dissented, concluding KSP affirmatively waived its preserved objection when it expressly stated it was not objecting to the final instructions.

3. Analysis

A. Precedents Cited

1) Preservation of Instruction Error under CR 51(3)

  • Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696 (Ky. 2020): Cited for the baseline appellate rule—properly preserved instruction issues are reviewed de novo, while unpreserved issues are not reviewed. This framed the Court’s focus on whether KSP complied with CR 51(3).
  • CR 51(3): The controlling procedural rule—error may be preserved by an offered instruction, by motion, or by specific objection before the jury is instructed. The Court emphasized the “plain language” allowing preservation through any one method.
  • Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153 (Ky. 2004): Central to the holding. The Court relied on Sand Hill’s policy rationale (ensuring the “best possible trial,” giving the judge a chance to correct error) and its test for whether tendered instructions “fairly and adequately” present a party’s position. The Court applied Sand Hill to conclude KSP’s tendered instructions were sufficient and the difference from the court’s final instruction was significant (not “minor”).
  • Owens- Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409 (Ky. 1998): Used to stress that, if preserving via tendered instruction rather than objection, the party must “actually tender the desired instruction.”
  • Burke Enters., Inc. v. Mitchell, 700 S.W.2d 789 (Ky. 1985): Cited for the anti-gamesmanship principle—CR 51(3) encourages active participation and prevents parties from “intentionally build[ing] reversible error.”
  • Preservation enforcement line: Fraser v. Miller, 427 S.W.3d 182 (Ky. 2014); Ellison v. R & B Contracting, Inc., 32 S.W.3d 66 (Ky. 2000); Kroger Co. v. Willgruber, 920 S.W.2d 61 (Ky. 1996); Mapother and Mapother, P.S.C. v. Douglas, 750 S.W.2d 430 (Ky. 1988); Cooper v. Cooper, 485 S.W.2d 509 (Ky. 1972). These cases reinforced that Kentucky appellate courts regularly refuse review of instruction errors raised for the first time on appeal—supporting why the Court scrutinized preservation carefully rather than treating the issue as automatically reviewable.
  • Commonwealth v. Steadman, 411 S.W.3d 717 (Ky. 2013) and Vinson v. Sorrell, 136 S.W.3d 465 (Ky. 2004): Cited to frame waiver doctrine: issues can be waived, but waiver requires a “voluntary and intentional surrender or relinquishment.” These authorities allowed the majority to treat counsel’s statement as not necessarily an intentional relinquishment in context.

2) KWA Elements and the Meaning of “Personnel Action”

  • Davidson v. Commonwealth, Dep't. of Mil. Affs., 152 S.W.3d 247 (Ky. App. 2004) (citing Woodward v. Commonwealth, 984 S.W.2d 477 (Ky. 1998)): Provided the commonly stated KWA prima facie elements, including that the employer “took action or threatened to take action” to discourage or punish disclosure. The Court used Davidson/Woodward to anchor the required elements and then clarified what kind of “action” qualifies.
  • Commonwealth Dep't of Agric. v. Vinson, 30 S.W.3d 162 (Ky. 2000): Cited for the proposition that the KWA covers both “overt retaliatory” acts and “subtle exercise of official authority or influence,” while still leaving “personnel action” undefined. This supported the Court’s view that the statute is broad but still needs a meaningful threshold to separate actionable retaliation from trivial workplace slights.
  • Harper v. University of Louisville, 559 S.W.3d 796 (Ky. 2018): The Court relied on Harper’s usage of “adverse employment action” in the KWA context and its insertion of “adverse” into KRS 61.103(3)’s phrasing. Harper supplied doctrinal momentum for adopting an “adverse” threshold, even though Harper did not fully define it.

3) Importing the “Materially Adverse” Standard from KCRA Retaliation Law

  • KRS 344.280(1) (KCRA retaliation) and the Court’s analogy: The Court explicitly looked to KCRA retaliation jurisprudence because its anti-retaliation prohibition is “substantially similar” to the KWA. That similarity justified harmonizing the standards.
  • Brooks v. Lexington- Fayette Urb. Cnty. Hous. Auth., 132 S.W.3d 790 (Ky. 2004): Used to show that, even under broadly worded anti-retaliation provisions, Kentucky law requires “a materially adverse change in the terms and conditions of employment.” This provided the Kentucky-specific foundation for a “materiality” threshold.
  • Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846 (Ky. 2016) (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006)): The Court adopted this “reasonable worker” deterrence test—whether the action “might well have dissuaded a reasonable worker from making or supporting a charge.” By adopting this standard for the KWA, the Court supplied the operative definition for “personnel action” going forward.
  • Non-binding but persuasive authorities cited in a footnote: Harper v. Elder, 803 F. App'x 853 (6th Cir. 2020); Arnold v. Holmes, No. 2009-CA-000514-MR, 2010 WL 3810191 (Ky. App. Oct. 1, 2010); Jones v. Oldham Cnty. Sheriff's Dep't, No. 2009-CA-000350-MR, 2010 WL 1508150 (Ky. App. Apr. 16, 2010). These cases were used to show the “materially adverse” concept had already been applied to KWA-like questions, making the Court’s adoption both coherent and predictable within the broader body of retaliation law.

4) The Dissent’s Waiver Authorities and Policy Concerns

  • Kennedy v. Commonwealth, 544 S.W.2d 219 (Ky. 1976), overruled on other grounds by, Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010): The dissent invoked the “can of worms” admonition (no switching theories between trial and appeal) to argue the majority effectively lets KSP escape an express waiver.
  • Reg'l Jail Auth. v. Tackett, 770 S.W.2d 225 (Ky. 1989): Cited by the dissent for the broader preservation principle that appellate courts generally do not review issues not properly raised and decided below.

B. Legal Reasoning

1) Why KSP Preserved the Instruction Issue

The majority’s preservation analysis is built around CR 51(3) and the Sand Hill framework: if a tendered instruction “clearly present[s]” the party’s position, “no further action is required.” KSP tendered an instruction requiring the jury to find KSP took “materially adverse action(s)” against each plaintiff. The trial court’s final instruction, by contrast, effectively assumed KSP had “take[n] or threatened to take a personnel action,” and asked only whether such action occurred “to discourage or punish” and whether disclosure was a “contributing factor.”

The Court treated that difference as legally consequential—because it removed a disputed element from the jury’s determination. Under Sand Hill, that is not a “minor” wording change; it is a structural error in the elements submitted to the jury.

2) Why “We’re Not Objecting to the Final Version” Was Not Waiver (Majority)

The Court acknowledged waiver is possible, but applied Vinson v. Sorrell’s requirement of an intentional relinquishment. Reviewing the bench conferences, the majority found KSP had argued the point, the judge rejected it, and counsel’s statement could reasonably be read as a decision to stop re-arguing after the court’s ruling—rather than an affirmative abandonment of the preserved legal claim.

The dissent would have taken the statement at face value as an express waiver; the majority instead emphasized context and the fact that tendering a correct alternative instruction already served the rule’s core purpose: giving the trial court a fair opportunity to correct the error.

3) The Substantive Rule: KWA “Personnel Action” Must Be Materially Adverse

The most important doctrinal development is the Court’s explicit adoption of a “materially adverse” threshold for KWA retaliation claims. The Court reached that result in three steps:

  1. Statutory architecture: KRS 61.103(3) requires the plaintiff to show the disclosure was a “contributing factor in the personnel action,” while the employer may show by “clear and convincing evidence” the disclosure was not a “material fact” in the personnel action. This embeds causation and burden-shifting around a defined “personnel action.”
  2. Existing KWA case law trend: Harper v. University of Louisville repeatedly used “adverse employment action,” signaling that “personnel action” is not limitless, even if the Court had not fully defined it before.
  3. Harmonization with KCRA retaliation law: Because KCRA retaliation is “substantially similar,” the Court imported the “materially adverse” standard articulated in Brooks v. Lexington- Fayette Urb. Cnty. Hous. Auth. and defined in Norton Healthcare, Inc. v. Deng (quoting Burlington N. & Santa Fe Ry. v. White).

The adopted test is explicitly fact-specific: whether the action “might well have dissuaded a reasonable worker from making or supporting a charge.” This choice rejects both extremes—(a) limiting KWA claims to classic termination/demotion scenarios only, and (b) allowing liability for trivial workplace slights.

4) Instructional Guidance on Remand

The Court instructed that, under the KWA, jury instructions must require the jury to decide:

  • (1) whether the employee made a good faith disclosure or report;
  • (2) whether the employer took or threatened to take a materially adverse employment action; and
  • (3) whether the disclosure was a contributing factor in that materially adverse employment action.

The Court also flagged a best practice: separate instructions for each element, so the jury clearly decides each element individually, rather than blending multiple elements into a single interrogatory.

C. Impact

1) Standardization of KWA Retaliation Claims

By formally adopting the Deng/Burlington “reasonable worker” material adversity test for KWA “personnel actions,” the Court substantially clarifies the level of employer conduct needed for liability. Future KWA cases will likely turn on whether alleged retaliation is sufficiently “material” in context, rather than on whether it fits a narrow list of traditional employment actions.

2) Increased Focus on Jury Instructions and Element Submission

The decision underscores that KWA element submission is not optional. Trial courts must avoid instructions that assume a disputed element (such as the existence of a personnel action) and instead must require a jury finding on it. This invites more rigorous pre-instruction litigation about whether particular conduct is “materially adverse,” and it raises the premium on carefully drafted, element-by-element instructions.

3) Litigation Strategy: Preservation Through Tendered Instructions

The preservation holding reinforces a practical lesson: a properly drafted tendered instruction that clearly states the party’s position can preserve error even if counsel does not reiterate an objection at the end. At the same time, the dissent’s reasoning signals risk: explicit statements of satisfaction may be argued as waiver in future cases, especially where the record lacks clear contextual support.

4) Substantive Filtering of Claims

The “materially adverse” requirement may reduce marginal KWA claims based on minor workplace frictions, while strengthening claims involving threats or actions that would deter a reasonable employee from reporting wrongdoing—consistent with the KWA’s purpose to protect meaningful whistleblowing without constitutionalizing everyday workplace disputes.

4. Complex Concepts Simplified

Kentucky Whistleblower Act (KWA)
A statute protecting state employees from retaliation for good-faith reporting of legal violations or specified wrongdoing (mismanagement, waste, fraud, abuse of authority, danger to public health/safety).
Good faith disclosure
A report made honestly (not fabricated or made with knowing falsity), typically to an “appropriate body or authority.”
Personnel action
Under this decision, a “personnel action” in a KWA retaliation case must be materially adverse—serious enough that it might deter a reasonable worker from reporting.
Materially adverse (reasonable worker test)
The employer’s act (or threat) is significant in context—i.e., it “might well have dissuaded a reasonable worker from making or supporting a charge.” It is not limited to termination; it depends on circumstances.
Contributing factor
The disclosure need not be the only cause; it must be one of the factors that helped bring about the adverse action.
Burden shifting under KRS 61.103(3)
The employee must prove by a preponderance that disclosure was a contributing factor; the employer then must prove by clear and convincing evidence the disclosure was not a material fact in the personnel action.
Preservation under CR 51(3)
A party can preserve an instruction issue by tendering a correct alternative instruction (or by motion or specific objection). The goal is to alert the trial judge in time to fix the problem.

5. Conclusion

This published decision does two important things for Kentucky practice and KWA doctrine. First, it confirms that a party may preserve instruction error through tendered instructions that clearly present its position under CR 51(3), and that an end-of-conference statement of “no objection” will not necessarily constitute waiver absent an intentional relinquishment shown in context. Second—and most significantly—it establishes that KWA retaliation requires proof of a materially adverse employment action and adopts the KCRA/Burlington “reasonable worker” deterrence standard as the governing definition.

On remand and in future cases, Kentucky trial courts must ensure KWA juries are instructed to decide each contested element—including whether the employer’s conduct was materially adverse—thereby aligning whistleblower retaliation analysis with Kentucky’s broader anti-retaliation jurisprudence.