Ivey v. McCreary Cnty. Fiscal Court

• Decision Date: 29 March 2013
• Docket Number: Civil No. 12–145–GFVT.
• Citation: 939 F.Supp.2d 762
• Parties: David IVEY and Rhona Ivey, Plaintiffs, v. McCREARY COUNTY FISCAL COURT, McCreary County Emergency Medical Services, and Jimmy Barnett, Individually and in his Official Capacity as Director of McCreary County Emergency Medical Services, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

939 F.Supp.2d 762

David IVEY and Rhona Ivey, Plaintiffs,

v.McCREARY COUNTY FISCAL COURT, McCreary County Emergency Medical Services, and Jimmy Barnett, Individually and in his Official Capacity as Director of McCreary County Emergency Medical Services, Defendants.

Civil No. 12–145–GFVT.

United States District Court,

E.D. Kentucky,

Southern Division,

London.

March 29, 2013.

Anthony J. Bucher, B. Dahlenburg Bonar, Barbara D. Bonar, Law Offices of B. Dahlenburg Bonar, P.S.C., Covington, KY, for Plaintiffs.

Jason E. Williams, London, KY, for Defendants.

MEMORANDUM OPINION & ORDER

GREGORY F. VAN TATENHOVE, District Judge.

Rhonda Ivey, a former Emergency Medical Technician for McCreary County Emergency Medical Services, claims that she was sexually harassed at her workplace by Jimmy Barnett, the former Whitley City Fire Chief. She claims that she reported this harassing conduct to her supervisors at EMS and to the McCreary County Fiscal Court, but no action was taken; that is until Jimmy Barnett became the Director of McCreary County EMS and terminated the employment of her and her husband, David Ivey. The Iveys now bring claims against the McCreary County Fiscal Court, McCreary County Emergency Medical Services, and Jimmy Barnett for Gender Discrimination, Hostile Work Environment and Retaliation under Title VII, 42 U.S.C. § 2000e et seq., and KRS § 344, et seq., as well as claims for Wage and Hour Violations under KRS § 337, Violations of Kentucky Whistleblower Statute under KRS § 61.102, and Punitive Damages. The moving Defendants argue, pursuant to Federal Rule of Civil Procedure 12(b)(6),¹ that many of the claims against them are deficient and must be dismissed. For the reasons stated below, Defendants' Motion to Dismiss [R. 7] will be GRANTED in part and DENIED in part.

I.

In reviewing a Rule 12(b)(6) motion, the Court “construe[s] the complaint in the light most favorable to the plaintiff, accept[s]its allegations as true, and draw[s] all inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007) (citation omitted). This Court, however, “need not accept as true legal conclusions or unwarranted factual inferences.” Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir.2000)). “For Defendants' motion to be granted, they have the burden of showing the Plaintiff has failed to state a claim for relief.” Id. (citing Carver v. Bunch, 946 F.2d 451, 454–55 (6th Cir.2005)).

II

A

The McCreary County Defendants argue that the McCreary County Fiscal Court, the McCreary County Emergency Medical Services, and Jimmy Barnett in his official capacity as Director of the McCreary County EMS, are immune under the doctrines of governmental and sovereign immunity from the state law claims advanced by the Iveys. When assessing whether defendants are entitled to immunity from state law tort liability, the Court must apply Kentucky rules of sovereign immunity. See, Funke v. Coogle, No. 3:11–CV–310–H, 2013 WL 209602 (W.D.Ky.2013) (citing King v. Taylor, 694 F.3d 650, 662–64 (6th Cir.2012)). Under Kentucky law, a “county government is cloaked with sovereign immunity.” Schwindel v. Meade County, 113 S.W.3d 159, 163 (Ky.2003) (citing Franklin County v. Malone, 957 S.W.2d 195, 203 (1997) (overruled on other grounds)). Counties may not be held vicariously liable for the ministerial acts of its agents, servants, and employees. Id. Further, when sued in their official capacities, agents of the county are “cloaked with the same immunity as the government or agency he/she represents.” Id. at 169 (citing Yanero v. Davis, 65 S.W.3d 510, 522 (Ky.2001)). However, sovereign immunity is subject to waiver by the Kentucky Legislature. Id. (citing Reyes v. Hardin Memorial Hospital, 55 S.W.3d 337, 338–39 (2001)). The Supreme Court of Kentucky has stated that it will find “waiver only where stated ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ ” Department of Corrections v. Furr, 23 S.W.3d 615, 616 (Ky.2000) (citing Withers v. University of Kentucky, 939 S.W.2d 340 (1990)).

The McCreary County Defendants first claim immunity from the Iveys' state law claims for Gender Discrimination, Hostile Work Environment, and Retaliation under the Kentucky Civil Rights Act, KRS § 344, et seq. However, the Kentucky Legislature has by overwhelming implication waived its sovereign immunity for claims made under the KCRA. Furr, 23 S.W.3d at 616 (“In this case, we address the single issue of whether the Commonwealth of Kentucky has waived sovereign immunity for claims brought under the Kentucky Civil Rights Act. KRS Chapter 344. We hold that it has and affirm the Court of Appeals.”). In recognizing this waiver, the Kentucky Supreme Court stated as follows:

In this case, the applicable statute provides, “It is unlawful practice for an employer....” KRS 344.040. And as shown above, the definition of employer includes a “person,” which is defined to include the state, any of its political or civil subdivisions, or agencies. KRS 344.010(1). Thus, by overwhelming implication, KRS 344.450 provides a cause of action against the Commonwealth for violations of the Kentucky Civil Rights Act. This is as it should be.

Id. at 619. Therefore, sovereign immunity, having been waived by the Kentucky Legislature, does not shield the McCreary County Defendants from the Iveys' state law claims under KRS 344.

The McCreary County Defendants next raise immunity as a defense to the Iveys' state law wage and hour claims. Specifically, Rhonda Ivey alleges that she was never compensated for earned vacation and sick time as required by KRS Chapter 337, which directs employers to pay its employees in a prescribed manner. The Kentucky Supreme Court, having considered the issue of waiver under KRS Chapter 337, once again relied on the definition of employer to conclude the statute overwhelmingly implies that, “the legislature did not intend to cloak city or county governments with governmental or sovereign immunity from the very liability that the statute placed on them.” Madison County Fiscal Court v. Kentucky Labor Cabinet, 352 S.W.3d 572, 576 (Ky.2011).

The Defendants cite Crawford v. Lexington–Fayette Urban County Government, No. 06–299–JBC, 2007 WL 101862, *3, (E.D.Ky. Jan. 10, 2007) to support their contention that KRS Chapter 337 does not waive sovereign immunity. However, this case relies heavily on the “clear direction of the Kentucky Court of Appeals in Tiller [v. Univ. of Ky., 55 S.W.3d 846, 850 (Ky.Ct.App.2001) ].” Id. Both of these cases predated the Kentucky Supreme Court's decision in Madison County Fiscal Court v. Kentucky Labor Cabinet, 352 S.W.3d 572 (Ky.2011), which as detailed above holds that KRS Chapter 337 overwhelmingly implies that sovereign immunity has been waived for Kentucky wage and hour claims.

Ultimately, “both cities and counties are subject to the wage and hour requirements of KRS Chapter 337,” under Kentucky law. Madison County Fiscal Court, 352 S.W.3d at 576. Hence, sovereign immunity is no bar to the Ivey's wage and hour claims.

The Iveys' final state law claim against which the McCreary County Defendants raise immunity as a defense is for violations of the Kentucky Whistleblower Act, codified at KRS 61.101 et seq. The purpose of this Act “is to protect employees who possess knowledge of wrongdoing that is concealed or not publicly known, and who step forward to help uncover and disclose that information.” Jones v. Oldham County Sheriff's Department, No.2009–CA–000350, 2010 WL 1508150, at *5 (Ky.Ct.App. May 11, 2010). (citing Davidson v. Commonwealth Department of Military Affairs, 152 S.W.3d 247, 255 (Ky.App.2004)). Under this statutory scheme, an employer is defined as “the Commonwealth of Kentucky or any of its political subdivisions.” KRS 61.101. A similar definition was considered to be a waiver by overwhelming implication in the KCRA context, and the Court finds that the definition of employer set forth by the Kentucky Legislature in KRS 61.101 constitutes an overwhelming implication in the whistleblower context as well. In support of this conclusion, the Kentucky Court of Appeals has previously recognized whistleblower claims under KRS Chapter 61 against a county government entity. See, Jones v. Oldham County Sheriff's Department, No.2009–CA–000350, 2010 WL 1508150, at *5 (Ky.Ct.App. May 11, 2010). Therefore, the Defendants are not shielded by immunity from the Iveys' whistleblower claims.

It should be noted that the Sixth Circuit as well as several courts in this district have dismissed claims brought under the Kentucky Whistleblower Act and the Kentucky Civil Rights Act on the basis that sovereign immunity has not been specifically waived so as to allow jurisdiction in federal court. See, Rose v. Stephens, 291 F.3d 917, 925 (6th Cir.2002) (“The language of the [Whistleblower] act does not waive the state's immunity from suit in federal court under the Eleventh Amendment.”). Wilson v. Kentucky, No. 5:08–238–JMH, 2008 WL 4951774 at *3 (E.D.Ky.2008) (“Kentucky has not waived its immunity from suit in Federal Court for claims under KRS Chapter 344.”). However, in each of these cases the claim is against the state of Kentucky, and the holding turns on Eleventh Amendment sovereign immunity. The Iveys' claims are not against Kentucky, but one of its counties. Because the Eleventh Amendment “does not extend to counties and similar municipal corporations,” the Eleventh Amendment is no bar in this case. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); see also, Grise v. Christian County Fiscal Court, No:5–07–CV–00042–TBR, 2010 WL 2682402 (W.D.Ky. July 2, 2010) (wherein the court allowed a claim under Kentucky Whistleblower Act to proceed against a county fiscal court).

Finally, Jimmy Barnett claims that he enjoys official immunity from any state...