Conn v. Deskins

• Decision Date: 01 March 2017
• Docket Number: Civil No. 16–87–ART
• Citation: 238 F.Supp.3d 924
• Parties: Willard CONN, Plaintiff, v. William M. DESKINS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

238 F.Supp.3d 924

Willard CONN, Plaintiff,

v.William M. DESKINS, et al., Defendants.

Civil No. 16–87–ART

United States District Court, E.D. Kentucky, Southern Division. Pikeville.

Signed March 1, 2017

Joe F. Childers, Joe F. Childers & Associates, Lexington, KY, for Plaintiff.

Jonathan C. Shaw, Porter, Banks, Baldwin & Shaw PLLC, Paintsville, KY, for Defendants.

MINUTE ENTRY ORDER

Amul R. Thapar, United States District Judge

On February 28, 2017, the Court held a telephonic status conference in this action. See R. 78. Joe Childers and Bethany Baxter represented plaintiff Willard Conn. Jonathan Shaw represented the defendants. Kati Bramble was the courtroom deputy. Joan Averdick was the court reporter. During the conference, the Court advised the parties of its summary judgment rulings because trial is to start Monday. The Court further promised that it would provide a minute entry order detailing its rulings. This is that minute entry order. Finally, the Court apologizes once again for providing these rulings and this minute entry order just days before trial.

DISCUSSION

Wrongful Discharge (Count I). Unless the parties agree otherwise, employment in Kentucky is "at will." Noel v. Elk Brand Mfg. Co. , 53 S.W.3d 95, 98 (Ky. Ct. App. 2000). Generally speaking, then, an employer may terminate a worker "for good cause, for no cause, or for a cause that some might view as morally indefensible," all without making a civil case of the personnel matter. Firestone Textile Co. Div. v. Meadows , 666 S.W.2d 730, 731 (Ky. 1983). But there is an exception: even an at-will employee can sue for wrongful discharge if (1) his termination was "contrary to a fundamental and well-defined public policy" that is (2) "evidenced by a constitutional or statutory provision." Mitchell v. Coldstream Labs., Inc. , 337 S.W.3d 642, 645 (Ky. Ct. App. 2010) (citing Firestone , 666 S.W.2d at 733 ). "Whether a public policy is fundamental, well-defined, and evidenced by existing law is a question of law for the court to decide." Id. (citing Grzyb v. Evans , 700 S.W.2d 399, 401 (Ky. 1985) ).

Conn claims that his discharge violated the "fundamental and well-defined public polic[ies]" reflected in Sections 1, 2, and 14 of the Kentucky Constitution. See R. 1–1 ¶ 51; R. 48 at 34–35. But Conn has not shown that a wrongful discharge tort can take root in these constitutional provisions. Kentucky courts have rejected wrongful discharge claims predicated on alleged violations of the free speech rights protected by Section 1 of the Kentucky Constitution and its federal counterpart (the First Amendment). See, e.g. , Mendez v. Univ. of Ky. Bd. of Trustees , 357 S.W.3d 534, 546–47 (Ky. Ct. App. 2011) ; Baker v. Campbell Cty. Bd. of Educ. , 180 S.W.3d 479, 483–84 (Ky. Ct. App. 2005) ; Jones v. Perry Cty. Fiscal Court , 185 F.Supp.3d 947, 964–65 (E.D. Ky. 2016). They have done much the same with respect to Section 14. See, e.g. , Boykins v. Housing Auth. of Louisville , 842 S.W.2d 527, 530 (Ky. 1992) ; Baker , 180 S.W.3d at 484. Finally, Conn has not identified any authority establishing that Section 2 sets forth a "fundamental and well-defined public policy" within the meaning of Firestone . He cites two cases, but both only describe Section 2 in broad strokes before measuring a statute's validity against it. See R. 48 at 35–36 (citing Louisville Shopping Ctr. Inc. v. City of St. Matthews , 635 S.W.2d 307, 313 (Ky. 1982), and Sanitation Dist. No. 1 of Jefferson Cty. v. City of Louisville , 308 Ky. 368, 213 S.W.2d 995 (1948) ). The court will therefore GRANT the defendants' motion for summary judgment on this claim. See R. 46–1 at 26–27.

Ky. Const. § 2 (Count II). The second entry in Kentucky's Bill of Rights is a promise of a limited government constrained by rules, reason, and rights: "Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority." Ky. Const. § 2. A laudable principle, but one Conn says the defendants forgot when they fired him without just cause or due process. R. 1–1 ¶¶ 56–61. As compensation for this transgression, Conn seeks money damages. Id. ¶¶ 60–61, 86(A)–(B). The problem is that Kentucky has not recognized a private right of action akin to Bivens to recover money damages for a violation of the state's constitution. See St. Luke Hosp., Inc. v. Straub , 354 S.W.3d 529, 536–38 (Ky. 2011) ; Clark v. Kentucky , 229 F.Supp.2d 718, 727 (E.D. Ky. 2002) ; Faul v. Bd. of Educ. of Danville Indep. Schs. , No. 5:12-CV-277-KSF, 2013 WL 1511746, at *2–3 (E.D. Ky. Apr. 9, 2013). The Court will therefore GRANT the defendants' motion for summary judgment as to this claim. See R. 46–1 at 26.

Breach of Contract (Count III). Conn also seeks damages from the defendants for breaching his employment contract. R. 1–1 ¶¶ 62–70. The defendants concede, for purposes of summary judgment only, that the "for cause" provision in the Pike County Administrative Code was sufficient to create an implied employment contract. R. 46–1 at 17–18. But they say that does not matter because the county is immune from suit on an implied-in-law contract. Id. at 18. Conn would rather you call the agreement a unilateral, written contract. R. 48 at 37–38 (citing Furtula v. Univ. of Ky. , 438 S.W.3d 303, 311–15 (Ky. 2014) (Noble, J., dissenting) ). The reason being that Ky. Rev. Stat. § 45A.245 waives the Commonwealth's immunity with respect to actions for breach of a "written contract with the Commonwealth." R. 48 at 37–38.

The Court need not resolve whether, assuming it exists, Conn's employment contract is implied-in-law or unilateral and written. Either way, Conn cannot sue the defendants for its breach. The defendants were not individually parties to any such contract, and Conn has not alleged that they tortiously interfered with it. So any part the defendants played in its formation or breach was limited to their representative roles. But any breach of contract claim brought against the defendants in their official capacities is in truth a claim against the entity for which they work: the Pike County Fiscal Court. See, e.g. , Kentucky v. Graham , 473 U.S. 159, 165–66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ; Commonwealth v. Harris , 59 S.W.3d 896, 899 (Ky. 2001). The Fiscal Court, in turn, is an arm of Pike County, and so is entitled to share in the county's sovereign immunity. See Doe v. Magoffin Cty. Fiscal Court , 174 Fed.Appx. 962, 971 (6th Cir. 2006) ("Kentucky courts have treated fiscal courts as county governments and thus have permitted fiscal courts to share sovereign immunity with county governments."). As a result, absent an express waiver of the county's immunity, the Fiscal Court is not amenable to suit for breach of contract. See Harris , 59 S.W.3d at 900. No such waiver exists here. Section 45A.245 applies only to "an action against the Commonwealth " for breach of a "lawfully authorized written contract with the Commonwealth. " Ky. Rev. Stat. § 45A.245 (emphasis added). Here, Conn's employment contract is with Pike County, not the Commonwealth of Kentucky. Thus, by its own terms, the waiver of immunity in Section 45A.245 does not reach as far as this case. See George M. Eady Co. v. Jefferson Cty. , 551 S.W.2d 571, 572 (Ky. 1977) ; Blankenship v. Lexington–Fayette Urban Cty. Gov't , No. 2008-CA-2044-MR, 2016 WL 3900726, at *5–6 (Ky. Ct. App. July 8, 2016) ; Trace Creek Constr., Inc. v. Harlan Cty. Fiscal Court , No. 2007-CA-328-MR, 2008 WL 1991647, at *2–3 (Ky. Ct. App. May 9, 2008). The Court will therefore GRANT judgment for the defendants on this claim. See R. 46–1 at 16–19.

State Law Defenses. In addition to challenging Conn's state-law claims on the merits, the defendants raise three general state-law defenses. First, they argue that they are entitled to qualified immunity from any individual capacity claims brought under state law. R. 46–1 at 30–32. Second, the defendants argue that they are insulated from Conn's state-law charges because they relied on the advice of counsel. Id. at 19, 27. Because the Court has granted summary judgment for the defendants on Conn's state-law claims, it need not address these two defenses. But it is worth taking up their third defense: sovereign immunity. Id. at 29–30.

When a plaintiff sues a government employee in his official capacity, he engages in a bit of fiction. It is not so much the official he is after, but the government body for which he works. The claim, in other words, passes through the official and runs against the public body itself. See Graham , 473 U.S. at 165–66, 105 S.Ct. 3099 ; Harris , 59 S.W.3d at 899. But claims of this sort carry unique complications; in this case, sovereign immunity. Judge Executive Deskins and the defendant magistrates are employees or agents of the Pike County Fiscal Court, and so share in any immunity it enjoys. Jones , 185 F.Supp.3d at 961. As discussed above, Kentucky in turn treats fiscal courts as county governments covered by the county's sovereign immunity. So unless a fiscal court (i.e. , the county) waives its immunity, it cannot be sued under state law. Doe , 174 Fed.Appx. at 971 ; Shepherd v. Floyd Cty. , 128 F.Supp.3d 976, 978 (E.D. Ky. 2015) ; Scholl v. Harmon , No. 5:14-CV-270-JMH, 2014 WL 5306665, at *1 (E.D. Ky. Oct. 15, 2014). With the exception of his breach-of-contract claim, Conn fails to argue that the fiscal court waived its immunity to his state-law claims. As discussed, too, the county's purported waiver of immunity to the breach-of-contract claim is not what Conn makes it out to be. Thus, to the extent Conn asserts state-law claims against the defendants in their official capacities, those claims fail for this—another, independent—reason. See R. 46–1 at 29–30.

First Amendment (Count IV). Conn claims that the defendants retaliated against him in violation of his First Amendment rights. R. 1–1 ¶¶ 71–78. No one disputes that firing someone is an "adverse action" sufficient to "chill a person...