Hardaway Management Co. v. Southerland

• Decision Date: 15 October 1998
• Docket Number: Nos. 97-SC-168-D,97-SC-915-DG,s. 97-SC-168-D
• Citation: 977 S.W.2d 910
• Parties: 14 NDLR P 122 HARDAWAY MANAGEMENT COMPANY, Appellant, v. Carole SOUTHERLAND, Appellee. and Carole SOUTHERLAND, Cross-Appellant, v. HARDAWAY MANAGEMENT COMPANY, Cross-Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 910

977 S.W.2d 910

14 NDLR P 122

HARDAWAY MANAGEMENT COMPANY, Appellant, v. Carole SOUTHERLAND, Appellee. and Carole SOUTHERLAND, Cross-Appellant, v. HARDAWAY MANAGEMENT COMPANY, Cross-Appellee.

Nos. 97-SC-168-DG, 97-SC-915-DG.

Supreme Court of Kentucky.

Oct. 15, 1998.

Matthew J. Baker, Cole, Moore & Baker, Bowling Green, for Appellant/Cross-Appellee Hardaway Mamagement Company.

Joy D. Denton, Amanda Anderson Young, Harned, Bachert & Denton, Bowling Green, for Appellee/Cross-Appellant Carole Southerland.

COOPER, Justice.

Appellant/Cross-Appellee Hardaway Management Company, Inc., (Hardaway) is headquartered in Tennessee and manages multi-unit apartment complexes in both Tennessee and Kentucky. Appellee/Cross-Appellant Carole J. Southerland had been employed by Hardaway as manager of the Oak Hill Apartments in Morgantown, Kentucky, since December 1, 1984. On October 29, 1988, Southerland injured her back in a work-related accident. She continued to work until November 4, 1988 when her treating physician, Dr. Craig Beard, ordered her to stop. She was removed from payroll status effective November 7, 1988. The notation on the payroll action form placed in Southerland's personnel file reflects the reason for the action as "Leave of absence due to alleged work injury." On December 7, 1988, Hardaway rehired a former maintenance employee, Sandra Carroll, as "assistant manager."

On January 24, 1989, Dr. Beard released Southerland to return to work, but with restrictions against repetitive bending at the waist or lifting more than thirty pounds. However, when Southerland informed Hardaway vice-president Dean Carter by telephone on January 27, 1989 that she was ready to return to work subject to Dr. Beard's restrictions, Carter advised her that her employment was terminated. On that same date, a payroll action form was placed in Southerland's personnel file indicating the reason for her termination as "Lack of work--services not needed;" and a letter was sent to Southerland giving her written notification of her termination and stating that she was being terminated for "lack of work." Also on January 27, 1989, a payroll action form was placed in Sandra Carroll's personnel file promoting her from assistant manager to manager, effective January 30, 1989.

Because Southerland's injury was work-related, she was paid temporary total disability benefits under the Kentucky Workers' Compensation Act of $146.66 per week for the periods November 4, 1988 through February 16, 1989, and March 19, 1989 through January 6, 1990. On September 28, 1990, she settled the remainder of her workers' compensation claim for a lump sum payment of $15,000.00, representing a permanent partial disability rating of 28.5%.

On August 30, 1991, Southerland sued Hardaway in the United States District Court for the Western District of Kentucky, asserting three causes of action: (1) Wrongful termination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq.; (2) retaliatory discharge in violation of Kentucky's Workers' Compensation Act, KRS 342.197; and (3) wrongful termination in violation of the Kentucky Equal Opportunities Act (KEOA), KRS 207 .150. ¹ Hardaway was granted summary judgment on the Rehabilitation Act claim on grounds of limitations, and on the retaliatory discharge claim on grounds of insufficiency of the evidence. Summary judgment was denied with respect to the KEOA claim. The district court then declined to exercise supplemental jurisdiction over that claim and dismissed it without prejudice on October 18, 1993. All of these rulings were affirmed by the Sixth Circuit Court of Appeals. Southerland v. Hardaway Management Company, Inc., 41 F.3d 250 (6th Cir.1994).

Meanwhile, on January 7, 1994, Southerland filed this action for compensatory and punitive damages for violation of the KEOA. Following a jury trial in the Butler Circuit Court, she was awarded compensatory damages for "back pay or income lost" in the sum of $81,374.00 and punitive damages in the sum of $25,000.00. Pursuant to KRS 207.230(1), the trial judge also awarded her attorney fees and costs in the sum of $44,192.17. The Court of Appeals reversed the award of punitive damages, but affirmed the awards for compensatory damages, attorney fees and costs. We granted Hardaway's motion for discretionary review of the compensatory damage award and Southerland's cross-motion for discretionary review of the Court of Appeals' reversal of her punitive damages award.

I. CIRCUIT COURT JURISDICTION.

Southerland brought this action in the Butler Circuit Court pursuant to KRS 207.230, which provides inter alia as follows:

207.230. Citizen suits.

Notwithstanding the provisions of KRS 207.200 [procedures for enforcement by Department of Workplace Standards] and KRS 207.210 [administrative complaint procedures], citizen suits may be commenced under the following terms and conditions:

(1) Any person deeming himself injured by any act in violation of the provisions of this chapter shall have a civil cause of action in Circuit Court to enjoin further violations, and to recover the actual damages sustained by him, and upon judicial finding of any violation of KRS 207.150 to 207.190, shall recover the costs of the law suit, including a reasonable fee for his attorney of record, all of which shall be in addition to any other remedies contained in KRS 207.130 to 207.240. (Emphasis added.)

This provision was enacted along with KRS 207.150 as part of the original KEOA in 1976. 1976 Ky. Acts, ch. 280, § 12. Hardaway posits that KRS 207.230(1) was either superseded or repealed by implication by the 1990 enactment of KRS 207.260, which provides as follows:

207.260. Right of action--Recovery for each violation.

(1) Any person aggrieved by a violation of KRS 207.135, 207.150, 207.160, or 304.12-013 shall have a right of action in District Court and may recover for each violation:

(a) Against any person who violates a provision of this section, liquidated damages of one thousand dollars ($1,000) or actual damages, whichever is greater.

(b) Against any person who intentionally or recklessly violates a provision of this section, liquidated damages of five thousand dollars ($5,000) or actual damages, whichever is greater.

(c) Reasonable attorney's fees.

(d) Such other relief, including an injunction, as the court shall deem appropriate.

(2) Nothing in this section limits the right of the person aggrieved by a violation of this section to recover damages or other relief under any other applicable law. (Emphasis added.)

Hardaway cites Strader v. Commonwealth, 302 Ky. 330, 194 S.W.2d 368 (1946) for the proposition that in the event of a conflict between two statutes, the last statute enacted must prevail. However, it is also a maxim of statutory construction that "Repeal by implication is not favored and will not be upheld unless such an intention clearly appears or unless the repugnancy is so clear as to admit of no other reasonable construction." City of Eddyville v. City of Kuttawa, Ky., 343 S.W.2d 404, 406 (1961); see also Demunbrun v. Browning, 311 Ky. 71, 223 S.W.2d 372 (1949). Hardaway's argument fails for two reasons. First, KRS 207.260(2) clearly provides that the provisions of that statute do not preclude an aggrieved person from recovering damages or relief under any other applicable law, which presumably would include KRS 207.230(1). Otherwise, that person's right to recover damages would be restricted to the jurisdictional limits of the district court, KRS 24A.120(1), regardless of his or her actual damages. Second, KRS 446 .130 instructs that in construing statutes which contain an apparent conflict, reference may be had to the acts of the General Assembly from which the sections were derived. KRS 207.260 was enacted as section 51 of chapter 443 of the 1990 Kentucky Acts. Chapter 443 was entitled "An Act relating to acquired immunodeficiency syndrome." Section 1 of that chapter, now codified as KRS 214.600, contains a lengthy statement of legislative intent, which includes the following The General Assembly finds the unique methods of transmission of this disease, and its inevitably fatal course, have raised public fears; changed the attitudes of employers, insurers, educators, law enforcement personnel, and health and medical providers about dealing with the disease; and could unexpectedly raise the medical costs of this state. The General Assembly intends to establish programs and requirements related to acquired immunodeficiency syndrome which carefully balance medical necessity, the right to privacy, and protection of the public from harm and which establish public programs for the care and treatment of persons with acquired immunodeficiency syndrome and related conditions.

Chapter 443 of the 1990 Kentucky Acts consisted of sixty-five (65) sections relating to acquired immunodeficiency syndrome (AIDS). Section 51 was codified as KRS 207.260. Section 52 amended KRS 207.150 to proscribe employment discrimination on the basis of the results of a human immunodeficiency virus-related test, subject to certain exceptions. Subsection (1) of section 51 provided that "Any person aggrieved by a violation of Sections 49, 52, 53 or 54 of this Act shall have a right of action in District Court...." From this legislative history, it is clear that KRS 207.260 was enacted to provide relief for persons discriminated against for AIDS-related reasons and not to repeal or otherwise affect the existing right of action created by KRS 207.230. The Butler Circuit Court was the appropriate jurisdiction in which to bring this action.

II. NOTICE TO COMMISSIONER OF WORKPLACE STANDARDS.

Hardaway next asserts that Southerland was precluded from bringing this action because she did so without first notifying the commissioner of workplace standards of the alleged violation of KRS 207.150. KRS 207.230(2) provides inter alia as follows:

(2) Notice. No action may be commenced:

(a)...