Turner v. Sullivan University Systems, Inc.

Decision Date08 March 2006
Docket NumberNo. Civ.A. 3:04CV-204-H.,Civ.A. 3:04CV-204-H.
Citation420 F.Supp.2d 773
PartiesMalcolm T. TURNER, Administrator of the Estate of Susanne R. Turner Plaintiff v. THE SULLIVAN UNIVERSITY SYSTEMS, INC. Defendant
CourtU.S. District Court — Western District of Kentucky

David Lindsay Leightty, Leightty & Associates, Louisville, KY, for Plaintiff.

Grover C. Potts, Jr., Michelle Deann Wyrick, Wyatt, Tarrant & Combs LLP, Louisville, KY, for Defendant.


HEYBURN, Chief Judge.

Plaintiff, Susanne R. Turner ("Turner") filed suit against Defendant, The Sullivan University Systems Inc. ("Sullivan"), her former employer, for violations of the Kentucky Civil Rights Act ("KCRA") and the Family and Medical Leave Act ("FMLA").1 Turner alleges that Sullivan violated the KCRA by discriminating against her on the basis of her sex, her pregnancy, and her disability, and by retaliating against her for engaging in protected activity under the KCRA. Turner also alleges that Sullivan violated the FMLA by interfering with her rights under that act and by retaliating against her for exercising them. Malcolm Turner has moved to revive all of the claims originally pled by Susanne Turner. In addition, Defendant has moved for summary judgment on each of Turner's claims. The Court will consider each motion in turn.


Turner was a full-time instructor in English at Sullivan, and was employed in that capacity from 1998 until her termination in December 2003. From 1993 to 1998 Turner was an adjunct instructor at Sullivan. After becoming a full-time instructor, Turner usually worked under an employment contract and usually taught five classes per quarter. Turner also served as Chair of the Sullivan English Department.

In March 2002, Turner took an approved twelve-week FMLA leave to have her first child, and she returned in June 2002. Upon returning from FMLA leave for the Summer 2002 Quarter, Turner taught four classes: English 101, English 102, English 204, and English 264. In the Fall 2002 Quarter, Turner taught English 274 and team taught Management 510.2 In September 2002, Turner entered into a one-year employment contract with Sullivan to expire on September 30, 2003.

In October 2002, Turner's supervisor, Mike Daniel ("Daniel"), called her at home to ask why she was not attending "Plus Fridays." Plus Fridays are essentially office hours in which students may seek assistance from instructors, ask questions, make up missed classes, take tests, and get additional help and feedback.3 Turner alleges that during the phone call, Daniel shouted at her, asking her "who do you think you are" and "do you think you're special," and that Daniel called Turner "arrogant" and hung up on her. Daniel told Turner that, notwithstanding the fact that she was teaching only graduate and evening courses, her position as Chair of the English Department required her to attend Plus Fridays. Shortly after that conversation, Turner resigned as English Department Chair. Nevertheless, Daniel continued to insist that she attend Plus Fridays.

In the Winter Quarter of 2003, which began in January 2003, Daniel assigned Turner to teach five English 100 classes, which are remedial courses. Also in the Winter Quarter of 2003, Sullivan did not offer two electives that Turner usually taught—Introduction to Shakespeare and Introduction to Horror. Daniel was aware that Turner considered a full load of remedial English courses an undesirable schedule.

On January 22, 2003, Turner was diagnosed with breast cancer. Turner requested and was granted an FMLA leave to undergo treatment.4 When her condition required additional treatment, Dr. James Watkins ("Watkins"), Vice President of Academic Affairs, approved an extension of her leave until June 2003. Turner returned to work on June 23, 2003, one week before the Summer 2003 Quarter began. Daniel assigned her five English 101 classes for the Summer 2003 Quarter. Turner considered this schedule undesirable.

Prior to her return, Turner requested placement in a "smart" classroom, so that she could teach using Microsoft Powerpoint projections. She was not placed in a smart classroom, but she was given a smart cart, which contained a projector, a VCR, and a computer. Turner also requested breaks between her classes. Sullivan granted this request. Turner also requested a schedule with all of her classes in the same room. With the exception of one evening course, Sullivan arranged for this accommodation. At some point in the Summer 2003 Quarter, Daniel told Turner that she could not attend a faculty meeting in Lexington, Kentucky at which certain faculty members were to discuss curriculum issues.

Turner's circumstances become more complicated in late June 2003. She discovered that she was five months pregnant; then she learned that her cancer had returned, and she began chemotherapy treatment. In late August 2003, Turner learned that she required a premature caesarian delivery. This took place on August 28. In the Summer 2003 Quarter, Turner missed a total of twelve days of class instruction, including three days when she had surgery and six days when she had her second child.

Turner's teaching contract expired on September 30, 2003. In her annual performance review on October 3, 2003, Daniel again assigned Turner to teach five English 101 classes. He also offered her a contract for only six months, as opposed to the usual year, and with only a one percent pay increase, rather than the customary four to four and one half percent increase. According to Turner, Daniel told her that the new contract was based on her availability, and that she use the six months to think about her attitude or seek a new job. Turner responded that the contract was illegal and unfair and that she would consult an attorney.

After that meeting, Turner went to see Watkins. Turner told Watkins that she was upset about the meeting with Daniel and that she believed the contract was an act of retaliation. Watkins said that he was concerned about her availability during the prior quarter, and he testified that the twelve absences were one reason for the contract. Following the meeting with Watkins, Turner contacted attorney Mary Maple, who sent a seven-page letter to the president of Sullivan asserting violations of the ADA, the FMLA and the KCRA concerning sex and pregnancy discrimination. Sullivan denied wrongdoing and accused Turner of misconduct.

Turner never signed the six-month contract, and on November 18, 2003, Watkins terminated her employment effective December 19, 2003, the last day of the Fall 2003 Quarter. Watkins' stated reasons for terminating Turner were poor attitude and/or disloyalty to the institution, and lack of cooperation with college administration and/or other faculty, as well as her refusal to sign the employment contract. Watkins and Daniel both acknowledged receipt of a letter from Turner's attorney during this time. Daniel said he believed Turner was serious about a lawsuit.

After her discharge, Turner applied for unemployment benefits, was denied, and successfully appealed. Much later, in December 2004, Turner also applied for Social Security disability benefits, stating that she became unable to work beginning January 21, 2003 (the date of her diagnosis). In April 2005, she began receiving benefits. On June 19, 2005, Turner died of cancer.


Malcolm Turner has moved to revive all of the claims originally pled by Susanne Turner. Sullivan argues that the claims under the KCRA and for liquidated damages under the FMLA do not survive the death of Susanne Turner. For the reasons stated herein, the Court holds that all of the original claims survive.


Under Ky.Rev.Stat. Ann. § 411.140,

[n]o right of action for personal injury or for injury to real or personal property shall cease or die with the person injuring or injured, except actions for slander, libel, criminal conversation, and so much of the action for malicious prosecution as is intended to recover for the personal injury. For any other injury an action may be brought or revived by the personal representative, or against the personal representative, heir or devisee, in the same manner as causes of action founded on contract.

On its face, section 411.140 seems to decide the issue, as a claim under the KCRA is plainly not one for slander, libel, criminal conversation, or malicious prosecution. Sullivan argues that the KCRA claims are in essence claims for injury to reputation, but it has cited no cases in support of its position, nor has the Court found any such cases. Kentucky courts do not appear to have addressed whether KCRA claims survive a plaintiff's death. In the absence of guidance from Kentucky courts, this Court will not read into section 411.140 an intention that seems contrary to its plain language. Accordingly, Turner's KCRA claims survive.

As to injunctive relief under the KCRA, such relief is plainly moot in the form of reinstatement. However, Turner also seeks general injunctive relief "prohibiting Sullivan from engaging in the unlawful practice which is the subject of this action." As discussed above, under Ky.Rev Stat. Ann. § 411.140, all claims survive unless they are ones specifically enumerated in the statute. Accordingly, Turner's claim for general injunctive relief survives.


The FMLA claims present a somewhat closer question. Although the parties agree that the cause of action under the FMLA survives, no court in the Sixth Circuit or elsewhere appears to have addressed this question. Accordingly, the Court will briefly analyze the issue. In the absence of a specific statutory provision directing courts to look to state law (as with 42 U.S.C. § 1988 in Title VII cases), courts have looked to federal common law to determine the survivability of an action created by federal statute. See, e.g., Smith v. Dept. of Human Servs., 876 F.2d 832, 834 (10th...

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