Lococo v. Barger

• Decision Date: 24 March 1997
• Docket Number: Civil Action No. 95-154.
• Parties: Alecia LOCOCO, Plaintiff, v. Mark BARGER, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

958 F.Supp. 290

Alecia LOCOCO, Plaintiff, v. Mark BARGER, et al., Defendants.

Civil Action No. 95-154.

United States District Court, E.D. Kentucky.

March 24, 1997.

Catherine M. Stevens, Brown, Todd & Heyburn, Lexington, KY, Robert Y. Gwin, Barbara W. Menefee, John T. Lovett, Brown, Todd & Heyburn, P.L.L.C., Louisville, KY, for Alecia Lococo.

James M. Burd, Allen Button, R. Allen Button, Williams & Wagoner, Louisville, KY, for Mark Barger.

James M. Burd, Allen Button, Williams & Wagoner, Louisville, KY, Stuart E. Alexander, III, Tilford, Dobbins, Alexander & Buckaway, Louisville, KY, for Sherman Neace, Perry County Fiscal Court, and Perry County, Kentucky.

James M. Burd, R. Allen Button, Williams & Wagoner, Louisville, KY, for Freddie Combs, Johnny Blair, and Denny Ray Noble.

Stuart E. Alexander, III, Tilford, Dobbins, Alexander & Buckaway, Louisville, KY, for

Freddie Combs, Johnny Blair, and Denny Ray Noble.

MEMORANDUM OPINION AND ORDER

HOOD, District Judge.

Before the Court are cross motions for summary judgment. [Record Nos. 38, 40]. The defendants have filed supplemental memoranda in support of their motion for summary judgment [Record Nos. 68 & 70]. The plaintiff has responded [Record Nos. 72 & 73]. This matter is now ripe for consideration. Having reviewed the record and the memoranda submitted by the parties, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

At the time of the incidents giving rise to this action, Mark Barger (Barger) was serving as Perry County Attorney.¹ Alecia Lococo (Lococo) was hired by Barger as Perry County Assistant Attorney. Her term of employment lasted from February 1994 to September 1994.

Lococo asserts that she was wrongfully discharged on September 9, 1994. Specifically, she alleges that Barger had indicated that she was doing a good job, and that the only reason that he was firing her was because she was a woman. [Lococo deposition, p. 17]. Lococo surreptitiously recorded the conversation with Barger and cites certain statements therein as direct evidence of discriminatory animus.

The defendants counter that Lococo was not discharged because she was a woman, but because she was having an affair with Denny Fugate while she was married to Harry Watts. [Barger deposition, p. 10]. In addition, they allege that Watts broke into the home of Fugate and put a gun to his head. [Barger deposition, p. 8]. Furthermore, as a result of the affair, they allege that Lococo gave birth to a child. The defendants claim this conduct compelled Barger to fire Lococo. In essence, they assert that Lococo's lifestyle was having a negative impact on the office and that Barger's wife was concerned about Lococo's reputation in the community. [Barger deposition, pp. 8 & 10].

After filing a complaint with the Equal Employment Opportunity Commission and the Kentucky Commission on Human Rights and receiving a right to sue letter, Lococo filed this action. She asserts claims under the following: (1) Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (2) Equal Protection Clause of the Fourteenth Amendment by way of 42 U.S.C. § 1983; (3) Kentucky Civil Rights Act, KRS 344.010 et seq.; (4) common law tort of outrageous conduct.

CONCLUSIONS OF LAW

A. Personal Staff Exception to Title VII

The defendants primary argument with respect to the claim under Title VII is that Lococo does not fall within the statutory definition of "employee" as set forth in the act and that, therefore, she is not entitled to the protections so afforded. Lococo fails to respond to this argument.

Under Title VII of the Civil Rights Act of 1964, the definition of "employee" is as follows:

The term "employee" means an individual employed by an employer, except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemptions set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.

42 U.S.C. § 2000e(f) (emphasis added). Lococo is not subject to the civil service laws of Kentucky, see KRS 15.770(4), and the office of county attorney is an elected position. Thus, whether Lococo falls under the personal staff exception turns on the definition of "personal staff."

Title VII does not define personal staff. However, the Fifth Circuit, when faced with this same issue, put forth six factors "which Courts have found significant in determining whether a complainant falls within the `personal staff exception to Title VII's definition of employee."² Teneyuca v. Bexar County, 767 F.2d 148, 151 (5th Cir.1985). These six factors are as follows:

(1) [W]hether the elected official has plenary powers of appointment and removal, (2) whether the person in the position at issue is personally accountable to only that elected official, (3) whether the person in the position at issue represents the elected official in the eyes of the public, (4) whether the elected official exercises a considerable amount of control over the position, (5) the level of the position within the organization's chain of command, and (6) the actual intimacy of the working relationship between the elected official and the person filling the position.

Id.

Having reviewed each of the Teneyuca factors, the Court is persuaded that the personal staff exception removes Lococo, as an assistant county attorney, from the definition of employee. First, since by statute, the county attorney appoints and removes assistants, the county attorney has plenary power of appointment and removal. See KRS 15.770(1). Second, it appears that an assistant county attorney is accountable only to the county attorney. Third, it is clear that an assistant county attorney would generally represent the county attorney in the eyes of the public. Fourth, the assistant county attorney is under the direction and control of the county attorney pursuant to KRS 69.300. Fifth, an assistant county attorney is just below the county attorney in the chain of command. And finally, the county attorney and an assistant county attorney have a close working relationship. Thus, having determined that Lococo falls within the personal staff exemption to the definition of employee, the Title VII claim must be dismissed. See Ramirez v. San Mateo County Dist. Attorney's Office, 639 F.2d 509, 511-513 (9th Cir. 1981).

B. Kentucky Civil Rights Act

1. No Personal Staff Exception Within KRS Chapter 344

Like Title VII, the Kentucky Civil Rights Act, KRS Chapter 344, proscribes certain unlawful employment practices. In fact, the general purpose of the Kentucky act is to provide a means for implementing within the state the policies embodied in the Federal Civil Rights Act of 1964, as amended, as well as other related federal statutes. KRS 344.020(1). It is, therefore, common practice to look to the federal counterpart in construing KRS 344. See Palmer v. International Ass'n of Machinists, 882 S.W.2d 117, 119 (Ky.1994) (noting that KRS Chapter 344 was modeled after the federal statute, Title VII of the Civil Rights Act of 1964).

KRS Chapter 344, however, is not the mirror image of Title VII in every respect. The policy statements of the Kentucky act go further than the federal counterpart. The Kentucky act, for example, was implemented to "`protect ... personal dignity and freedom from humiliation.'" Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 817 (Ky.1992) (quoting KRS 344.020(1)(b)). The federal act has no such policy statement. Id. In addition, the Kentucky act goes beyond Title VII in proscribing certain employment practices. To wit, it is a violation of a Kentuckian's civil rights for an employer to discriminate against an individual "because the individual is a smoker or nonsmoker, so long as the person complies with any workplace policy concerning smoking." KRS 344.040(1).

The definition of employee under the Kentucky act presents another example in which the acts are dissimilar. It simply states:

"Employee" means an individual employed by an employer, but does not include an individual employed by his parents, spouse, or child, or an individual employed to render services as a domestic in the home of the employer.

KRS 344.030(5). Clearly, the Kentucky definition of employee does not contain the personal staff exception set forth in the federal counterpart. Had the General Assembly intended to include such an exemption, it, presumably, would have done so explicitly. Consequently, the Court declines to borrow the exception from federal law and impose it within the statutory scheme of the Kentucky Civil Rights Act.

2. Perry County Is An Employer Under KRS Chapter 344

Perry County and the Perry County officials argue that they should be dismissed from this action because they do not fit within the definition of "employer" under KRS 344.030. KRS 344.030(2) defines "employer" as "a person who has eight (8) or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year and an agent of such person...." "Person" is defined as "one (1) or more individuals, labor organizations, ... or other legal or commercial entity; the state, any of its political or civil subdivisions or agencies." KRS 344.010(1). Thus, Perry County and its officials, as political subdivisions of the state, are not immune from suit under KRS Chapter 344 and are considered an employer if they employ eight (8) or more persons, one of which is the plaintiff.

Perry...