Herrera v. Churchill McGee, LLC
| Decision Date | 22 June 2012 |
| Docket Number | No. 10–5421.,10–5421. |
| Citation | 114 Fair Empl.Prac.Cas. (BNA) 1636,680 F.3d 539 |
| Parties | Guillermo HERRERA, Plaintiff–Appellant, v. CHURCHILL McGEE, LLC, Nathan Churchill, and Patrick McGee, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ARGUED:Michael J. O'Hara, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, Kentucky, for Appellant. Mason L. Miller, Miller Wells, PLLC, Lexington, Kentucky, for Appellees. ON BRIEF:Michael J. O'Hara, Roula Allouch, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, Kentucky, Cori Hash, Kentucky Equal Justice Center, Lexington, Kentucky, for Appellant. Mason L. Miller, Will E. Messer, Miller Wells, PLLC, Lexington, Kentucky, for Appellees.
Before: MOORE and KETHLEDGE, Circuit Judges; MARBLEY, District Judge.*
Guillermo Herrera filed this lawsuit against his former employer, Churchill McGee, LLC, and its two owners (collectively, “Churchill McGee”), alleging discrimination and retaliation under state and federal law. The district court dismissed Herrera's claims on the ground that Herrera had previously filed an administrative complaint alleging discrimination with a county human rights commission, and the commission found no probable cause to believe that any violation of state anti-discrimination laws had occurred. The district court ruled that the administrative decision had the effect of barring Herrera's state-law claims under election-of-remedies principles and his federal-law claims under the doctrine of administrative preclusion. We AFFIRM the dismissal of Herrera's state-law claims and federal-law discrimination claim. Because the county agency did not adjudicate Herrera's federal retaliation claim, however, we REVERSE the grant of summary judgment as to Herrera's federal retaliation claim.
Guillermo Herrera was hired by the Churchill McGee construction company in June 2003 and worked as a laborer until he was fired on March 24, 2008. In Herrera's termination letter, Patrick McGee stated that Herrera was being fired “due to unsatisfactory attendance and incarceration in jail following conviction of a misdemeanor or felony by a court of competent jurisdiction, which results in missing at least five (5) days work.” R.25–3 (Termination Letter). After his termination, Herrera filed a complaint with the Lexington–Fayette Urban County Human Rights Commission (“Fayette HRC” or “HRC”) on April 4, 2008, in which he alleged that Churchill McGee both garnished his wages improperly and fired him on account of his race and national origin. Herrera is a Cuban of African ancestry and he alleged that white, non-Cuban employees of Churchill McGee received more favorable treatment.
On July 21, 2008, Emily Williams, an investigator with the Fayette HRC, sent Herrera a letter in which she said that she had completed her investigation and “found insufficient evidence to support [his] allegations.” R.10–3 at 1 (July 21, 2008 Letter). Specifically, she found that
Churchill McGee, LLC has treated other employees in the same or similar manner with regards to terminations, cell phone bill charges, and absences. The investigation reveals that they have ... terminated black, white, and Latino employees for the same or similar reasons that you were terminated.
Id. She stated that her findings were not a final decision on Herrera's claims and that he could provide more information to her if he wished:
If you have any additional information you would like me to consider, please contact me within the next five (5) days. If I do not hear from you, I will submit my recommendation to the Executive Director for his review and he will make the final determination with regards to your charge.
Id. Finally, she advised Herrera to speak with his “own legal counsel” if he had any questions “regarding the procedures or information in this letter.” Id. at 2.
Herrera did go to see Williams within the next five days, but she told him that the decision was already in the hands of the Executive Director of the Fayette HRC. Williams then took Herrera to speak with HRC Executive Director William Wharton, who told Herrera that he would review Williams's investigation and issue a decision. Wharton also advised Herrera that Herrera's only option available at that time would be to speak with an attorney about carrying his case forward.
On July 31, 2008, the Executive Director issued his decision, in which he dismissed Herrera's complaint for the following reason:
Based upon the investigation conducted, we are unable to conclude that the information obtained establishes violation(s) of the statutes. This does not certify that the Respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.
R.10–4 (Fayette HRC Dismissal). This decision also notified Herrera of his right to apply for reconsideration, and it stated that if Herrera did not seek reconsideration within twenty days, “an Order of Dismissal shall be issued.” Id. Herrera did not seek reconsideration, and twenty-one days later, an Order of Dismissal was entered, in which the Executive Director noted that no probable cause had been found. At the bottom of the Order is a paragraph giving Herrera notice of some of the implications of the Order. In particular, it states that, R.10–5 (Order of Dismissal).
On March 4, 2009, Herrera filed this complaint against Churchill McGee and its owners, Nathan Churchill and Patrick McGee. The complaint lists seven counts against the defendants, only the first two of which are relevant to this appeal. Both counts are for discrimination and retaliation, but Count One is based on 42 U.S.C. § 1981, and Count Two is based on the Kentucky Civil Rights Act (“KCRA”), Ky.Rev.Stat. Ann. § 344.450.1
Churchill McGee filed a motion for partial judgment on the pleadings in July 2009, seeking dismissal of Count Two. The district court granted the motion and dismissed this count on October 26, 2009, on the ground that the KCRA claim in Count Two was barred by the KCRA's election-of-remedies provision, Ky.Rev.Stat. Ann. § 344.270. Section 344.270 provides, in full, as follows:
The provisions of KRS 13B.140 notwithstanding, commission shall not take jurisdiction over any claim of an unlawful practice under this chapter while a claim of the same person seeking relief for the same grievance under KRS 344.450 is pending. A state court shall not take jurisdiction over any claim of an unlawful practice under this chapter while a claim of the same person seeking relief for the same grievance is pending before the commission. A final determination by a state court or a final order of the commission of a claim alleging an unlawful practice under KRS 344.450 shall exclude any other administrative action or proceeding brought in accordance with KRS Chapter 13B by the same person based on the same grievance.
Ky.Rev.Stat. Ann. § 344.270. Because his complaint with the Fayette HRC was not pending at the time Herrera brought this suit, only the final sentence of § 344.270 is relevant. According to the district court, § 344.270 bars individuals from bringing a civil-rights lawsuit after unsuccessfully seeking relief on the same claims from an administrative civil-rights commission in Kentucky, meaning that Herrera's unsuccessful complaint with the Fayette HRC barred him from bringing the KCRA claim in Count Two.
A few months later, in March 2010, the parties filed cross-motions for summary judgment. The district court granted Churchill McGee's motion on April 13, 2010, and dismissed the case. The court dismissed Count One for reasons somewhat similar to Count Two; it held that the doctrine of administrative preclusion barred relitigation of the federal § 1981 discrimination and retaliation claims because the Fayette HRC had already considered and rejected Herrera's administrative complaint, which was based on essentially the same claims. Herrera filed a timely notice of appeal from the district court's orders on the motions for partial judgment on the pleadings and summary judgment.
We review de novo a district court's grant of both judgment on the pleadings and summary judgment. Poplar Creek Dev. Co. v. Chesapeake Appalachia, L.L.C., 636 F.3d 235, 240 (6th Cir.2011); Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir.2011).
Herrera contends that the district court erred in holding that Kentucky Revised Statute § 344.270 barred him from bringing his KCRA claim under § 344.450, arguing that the Order of Dismissal from the Fayette HRC was not a final order.
In interpreting state law, “we apply the law of the state's highest court,” and when the state's highest court has not ruled on an issue, we “must ascertain the state law from all relevant data, including the state's intermediate court decisions.” Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 697–98 (6th Cir.2006) (internal quotation marks omitted). Intermediate appellate decisions “are accorded weight, although a federal court is not bound by lower court determinations if convinced by other data that the state's highest court would determine otherwise.” Bailey v. V. & O Press Co., 770 F.2d 601, 604 (6th Cir.1985).
Kentucky courts have consistently treated Orders of Dismissal based on lack of probable cause as final orders that trigger the election-of-remedies bar of § 344.270. See Vaezkoroni v. Domino's Pizza, Inc., 914 S.W.2d 341, 341–42 (Ky.1995); Burton v. Ky. State Police, 341 S.W.3d 589,...
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