OPINION AND ORDER

KARL FORESTER, Senior Judge

This matter is before the Court on the motions of Defendants James Stephen Ward ("Ward") and Blackburn Ward Funeral Home, Inc. ("Blackburn") to dismiss Plaintiff's Complaint and First Amended Complaint and on the motion of Plaintiff Ronald Eugene Owens ("Owens") to remand. Having been fully briefed, these motions are ripe for consideration. Before addressing the dismissal motions, the Court must consider the jurisdictional issue raised by the remand motion.

BACKGROUND

Owens alleges that Ward was the Coroner of Woodford County and the President of Blackburn. Owens says he became am employee of the Coroner's office in late 1998 or early 1999 and an employee of Blackburn in August 2004. He claims that, as a result of his opposition to practices prohibited under KRS Chapter 344, the Kentucky Civil Rights Act ("KCRA"), he was constructively discharged by Ward and Blackburn in the spring of 2007. Plaintiff filed his Complaint in Woodford Circuit Court on June 12, 2008. He appears to be alleging that the practices he opposed constituted discrimination on the basis of sex under KRS 344.040. [DE 1-3, p. 41; Verified Complaint, ¶ 5].

Defendants moved to dismiss the Complaint on June 30, 2008 for failure to state a claim. Supported by an affidavit and quarterly tax report records, Defendants argued they could not be subject to civil rights liability under KRS Chapter 344 because they were not an "employer" under KRS 344.030. [DE1-3, p. 18]. To qualify as an "employer" and be subject to the KCRA, a defendant must employ "eight (8) or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year." KRS 344.030. Defendants showed that neither Ward nor Blackburn met this requirement.

On August 12, 2008, Plaintiff filed a First Amended Complaint alleging that Ward and Blackburn's operations involved "an interrelation of operations, common management, control of labor relations and common ownership or financial control" such that they were effectively a consolidated employer with eight or more employees. [DE1-3, ¶¶ 2-6]. The First Amended Complaint further alleged that KCRA's minimum requirement of eight employees violated various provisions of the Kentucky Constitution, including the right to equal protection. Id. at ¶¶ 8-16. Plaintiff asked the Woodford Circuit Court to declare the minimum employee requirement unconstitutional and to sever it from the remainder of the KCRA so that a civil rights claim against an employer with less than eight employees could survive dismissal.

On August 21, 2008, Defendants moved to dismiss the amended complaint [DE 3-5] and reiterated that Ward employs no one in his individual capacity, the Coroner's Office employs three people at most, and Blackburn employed only six people during the relevant time period. [DE 3-5, pp. 4-5]. Defendants noted that the KCRA is to be construed consistently with Title VII, the federal civil rights act, and that the purpose of a numerosity requirement is to protect small businesses such as these from the costs and burdens of civil rights litigation. Even if Plaintiff's allegations regarding consolidation were true, which is assumed for purposes of the motion to dismiss, the Defendants argued they still did not have eight employees unless the same employees were improperly counted twice. Defendants further argued any official capacity claims against Ward should be dismissed since local elected officials are not "employers" under KCRA. On the merits, they argued that the Kentucky Constitutional claims failed as a matter of law. Id. pp. 9-10.

In his September 10, 2008 response to the second motion to dismiss, Plaintiff conceded "that 'employer' status is an element of Owens' cause of action for discrimination under KRS 344.040." [DE 3-6, p. 4]. He argued, however, that dismissal should be denied because Ward and Blackburn should be consolidated as one employer for purposes of numerosity. Plaintiff reiterated arguments that the requirement of eight employees violated the state constitutional provisions regarding equal protection and special legislation. For the first time, Plaintiff also asserted that the numerosity requirement violated the United States Constitution. [DE 3-6, pp. 12-14].

On October 8, 2008, Defendants removed the action and pending motions, based upon Plaintiff's federal constitutional claims. Defendants replied in support of their dismissal motions and addressed all claims on the merits.

On November 7, 2008, Plaintiff moved to remand the action to the Woodford Circuit Court on the ground that no federal question was presented on the face of his complaint. Plaintiff also argued that a no federal question is presented when the United States Constitution is invoked to overcome a motion to dismiss for failure to state a claim. Plaintiff further contended that the KCRA numerosity requirement for an "employer" does not apply to a claim of retaliation.

ANALYSIS

I. Plaintiff's Motion to Remand

A. Standard

Claims originally filed in state court may be removed to federal court by a defendant if the action could have been filed originally in federal court. 28 U.S.C. § 1441(a). Defendants rely on 28 U.S.C. § 1441(b), which permits removal of any "civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States," known as "arising under" jurisdiction. Generally, "Congress has given the lower federal courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint established either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Palkow v. CSX Transportation, Inc., 431 F.3d 543, 552 (6th Cir. 2006), quoting Franchise Tax Board of The State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 27 (1983). There are two narrow exceptions to the well-pleaded complaint rule. A plaintiff cannot avoid federal jurisdiction when (1) federal law completely preempts the state-law claims; or (2) the state-law claims raise substantial questions of federal law. Id.

With respect to removal, § 1446(b) provides:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . . .

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

B. Analysis

1. Timeliness and Federal Question

In the present case, the initial complaint did not raise a federal question. Plaintiff's claim was based solely upon his opposition to "practices declared unlawful by KRS Chapter 344" and his alleged constructive discharge as a result thereof. His amended complaint asserted affirmatively that a statutory element of his claim was unconstitutional and did not preclude his cause of action. In his response to a second motion to dismiss, Plaintiff clarified that his constitutional claim was based on the Equal Protection Clause of the United States Constitution. Defendants promptly removed the action to this Court, and Plaintiff moved to remand for lack of subject-matter jurisdiction.

The first question is whether the response to the motion for summary judgment was an "other paper" from which a notice of removal may be timely filed. In Peters v. Lincoln Elec. Co., 285 F.3d 456 (6th Cir. 2002), the court said it "agrees with and now joins, the majority of courts and finds that a plaintiff's responses to deposition questioning may constitute an 'other paper' under Section 1446(b)." Id. at 466. "The intent of § 1446(b) is to 'make sure that a defendant has an opportunity to assert the congressionally bestowed right to remove upon being given notice in the course of the case that the right exists.'" Id. Although the Sixth Circuit has not ruled on the precise issue in this case, it is the opinion of this Court that, just as information provided during a deposition may serve to give notice that the right of removal exists, so may briefs filed in the action. Other jurisdictions agree.

In Eyak Native Village v. Exxon Corp., 25 F.3d 773 (9th Cir. 1994), a group of plaintiffs claiming injury as a result of the Exxon Valdez oil spill continued to pursue claims in state court for natural resource damages after a federal consent decree was entered. In a reply brief in support of their motion to certify a trust fund class, plaintiffs "argued that the consent judgment was not binding because the State was not fully representative of all interests." Id. at 776. Exxon removed the cases to federal court, and the plaintiffs moved to remand. The Ninth Circuit affirmed denial of the motion to remand and held that "the reply brief raised a federal claim sufficient for removal under 28 U.S.C. § 1441(a)." Id. at 777. That court agreed with the district court that the case only became removable after the consent decree was entered and the plaintiffs made it clear in their reply brief that "they intended to pursue additional relief for natural resource damage." Id. at 779.

In Jackson v. Brooke, 626 F.Supp. 1215 (D. Colo. 1986), the plaintiff asserted seven state law claims for relief, none of which could support federal jurisdiction. The defendant moved for summary judgment arguing that all claims were barred by governmental immunity. Plaintiff responded and stated as one argument that the complaint pled a claim for relief under 42 U.S.C. § 1983. Following a state court determination that there were cognizable § 1983 claims, the defendant removed. The federal court held that the responsive brief was an "other paper" that put the defendant on notice of a federal claim. Id. at 1217. However, the removal notice was untimely because the defendant waited four months after receiving the responsive brief to file the notice of removal. Id. See also Crump v. Wal-Mart Group Health Plan, 925 F. Supp. 1214, 1218-1219 (W.D. Ky. 1996) (case became removable after state court granted motion to file cross claim containing ERISA issues).

In Parents United for Better Schools, Inc. v. School District of Philadelphia Board of Education, 1996 WL442887 (E.D. Pa. 1996), the plaintiff challenged on multiple state law grounds the schools' distribution of condoms to students. In response to a motion for summary judgment, the plaintiffs claimed a Fourteenth Amendment right to freedom from unnecessary governmental intrusion into child-rearing. The defendants promptly filed a notice of removal, and the plaintiffs filed a motion to remand. The court held that the response to the summary judgment motion was an "other paper" under 28 U.S.C. § 1446(b) and that removal was timely. Id. at *2. Regarding claims that the plaintiffs sought only to respond to the motion for summary judgment and did not intend to raise a federal claim, the court said: "Because the plaintiffs relied on the Fourteenth Amendment to defeat summary judgment, I must conclude that they have raised a federal question, so that this court has jurisdiction." Id. Regarding a claim that the federal question was not significant, the court responded: "The substance of a federal question is significant when it is one element of a state claim." Id. Accordingly, the court held that it had subject matter jurisdiction and denied the motion to remand.

Plaintiff argues that he invoked the Fourteenth Amendment's Equal Protection Clause simply "for the purpose of defeating a potential affirmative defense. . . ." [DE 6, p. 5]. In support, he cites Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 129 (1974), in which the court said no federal question was raised by citation to federal statutes in the complaint when their purpose was merely to overcome a potential defense. In the present case, however, Plaintiff is not anticipating any affirmative defense. A right to dismissal for failure to state a claim is not an "affirmative defense." See Fed.R.Civ.P. 8(c).

In Arbaugh v. Y H Corp., 546, U. S. 500, 515 (2006), the court held "that the threshold number of employees for application of Title VII is an element of a plaintiff's claim for relief." Id., emphasis added. Kentucky construes the KCRA consistently with Title VII, including a claim of unlawful retaliation. Brooks v. Lexington-Fayette Urban County Housing Auth., 132 S.W.3d 790, 801-802 (Ky. 2004). See also McBrearty v. Kentucky Community and Technical College System, 262 S.W.3d 205 (Ky.App. 2008) ("Kentucky Courts consider the decisions of federal courts that interpret Title VII as persuasive precedent when interpreting KRS Ch. 344 due to the similarity between Title VII of the Civil Rights Act of 1964 and Kentucky's Civil Rights Act."); Stacy v. Shoney's, Inc., 1998 WL 165139 (6th Cir. 1998) ("Because the KCRA is modeled on Title VII of the Civil Rights Act of 1964, 42 U.S.C., federal decisions interpreting the federal act are 'most persuasive, if not controlling, in interpreting the Kentucky statute.'") The stated purpose of KCRA is to "provide for execution within the state of the policies embodied in the Federal Civil Rights Act of 1964 as amended." KRS 344.020(1)(a). Thus, the threshold number of employees for application of the KCRA is an element of Plaintiff's claim for relief.

In the present case, Plaintiff is asserting that he has a federal constitutional right under the Equal Protection Clause to invoke the protection of the KCRA without satisfying an essential element of the KCRA, the minimum number of employees. His Amended Complaint states in part that there are "59,687 employers in the Commonwealth of Kentucky having less than eight (8) employees." [DE 1-3, ¶ 10]. He argues this means there are "at least 59,687 employees and up to 417,809 employees in Kentucky as of December 2007 who are ineligible to seek the remedies provided by KRS Chapter 344 for employment discrimination." Id. at ¶ 11. He claims, therefore, that the requirement of "8 or more employees" denies his "constitutional right to the equal protection of the laws" and should be stricken from the statute. Id. at ¶¶ 14, 18. In his response to the second motion to dismiss, Plaintiff made it clear that he is affirmatively claiming the "8 or more" employee requirement violates the United States Constitution.

Like the plaintiffs in Parents United, Owens provided three pages of citations to United States Supreme Court cases to support his argument that the numerosity requirement violates the Equal Protection Clause of the United States Constitution. [DE 3-6, pp. 12-14]. Also like Parents United, Owens seeks affirmative relief that the numerosity requirement be declared invalid and, thus, not an essential element of his KCRA claim. His assertion that the statute is unconstitutional "arises under" the United States Constitution. It is the opinion of this Court that Plaintiff stated a federal question in his response to the motion to dismiss. Remand is not warranted for lack of a federal question or untimely removal.

2. Joint Employer

Plaintiff argues that any requirement of numerosity is satisfied when Ward and Blackburn are considered together as a joint employer. As a result, he asserts there is no federal question to be decided in this case. In his Amended Complaint, Plaintiff alleges that Ward and Blackburn have the required "interrelation of operations, common management, centralized control of labor operations, and common ownership or financial control" such that their employees may be aggregated. [First Amended Complaint ¶ 4]. Plaintiff claims there are questions of fact to be resolved regarding these elements of joint employer. For purposes of this motion, however, the Court will assume that Plaintiff can prove the legal conclusion he alleged. Nonetheless, he cannot show that the Defendants had "eight (8) or more employees within the state in each of twenty (20) or more calendar weeks in the current or proceeding year" so as to qualify as an "employer." KRS 344.030(2).

The uncontradicted documents provided by Defendants show that Blackburn had six employees meeting the statutory criteria: J. Ward, P. Baker, G. Finne, B. Trent, Ronald Owens and Danny Owens. [DE1-3, Ex. 1, Ex. A]. Ward's affidavit shows that the Coroner's Office consisted of Ward as the elected Coroner and two employees, Ronald Owens and Danny Owens. [DE 1-2, p. 25 (Memo, p. 7); DE 1-4, p. 8 (August 18, 2008 Affidavit)]. These facts were not disputed. Accordingly, the only way Blackburn as a joint employer could qualify as a KRS 344.030(2) "employer" with eight employees would be if Ronald Owens and Danny Owens were counted as four employees, rather than two, to raise the total from six to eight. Such a result is supported neither by authority, nor by logic.

A similar argument was rejected in Collins v. Mid-States Aerospace, Inc., 2002 WL 1097903 (D. Kan. 2002). The court said:

Plaintiff asserts that Audley, Brager and Findley should each be counted twice, for a total of six employees. Plaintiff offers no authority for this double counting, and the argument [is] nonsensical. Under the joint employer concept, the Court has counted each employee as an employee for each entity. Each entity, however, counts each employee[] only once. Likewise, although plaintiff does not argue that the companies are a single entity, it would make no sense to count the same individual employee as two employees, even if the Court disregarded the separate entities and counted all employees together.

In the present case, like Collins, proof of the elements of a joint employer would not increase the number of employees to the statutory minimum of eight. The question of the constitutionality of KRS 344.030(2) cannot be avoided by the joint employer argument.

3. Retaliation Claim

In further support of his motion to remand, Plaintiff argues that any federal question is not substantial because the numerosity requirement does not apply to a claim of retaliation under KRS 344.280 and that he need not prove an underlying claim of discrimination in order to pursue a claim for retaliation. [DE 9]. Kentucky's retaliation statute, KRS 344.280, provides in part as follows:

It shall be an unlawful practice for a person, or for two (2) or more persons to conspire:

(1) To retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this chapter.

KRS 344.280(1). Owens argues that Ward and Blackburn are "persons" within the meaning of the retaliation statute and that there is no requirement of an employer with eight employees.

A retaliation claim for opposing a practice is based on the "opposition clause" in the statute. Retaliation for filing a complaint or related activity is based on the "participation clause." "The distinction between employee activities protected by the participation clause and those protected by the opposition clause is significant because federal courts have generally granted less protection for opposition than for participation in enforcement proceedings." Booker v. Brown Williamson Tobacco Co., Inc., 879 F.2d 1304, 1312 (6th Cir. 1989). The participation clause offers "exceptionally broad protection." Id. "On the other hand, 'the opposition clause' does not protect all 'opposition' activity," and a balancing of interests may be involved. Id.

Owens alleged for his retaliation claim that he "opposed practices declared unlawful by KRS Chapter 344." [DE 1-3, Verified Complaint ¶ 9]. The retaliation statute is clear that opposition to any and every "practice" is not protected. Retaliation for opposition to practices such as discrimination based upon hair color, shirt color, height, or thousands of other factors would not give rise to a cause of action under the KCRA. The legislature only protected opposition to "a practice declared unlawful by this chapter." KRS 344.280(1). The words "declared unlawful by this chapter" cannot be ignored as mere surplusage. A long-standing rule of statutory construction in Kentucky is that "every word is to be given meaning and effect." Hodgkin v. Kentucky Chamber of Commerce, 246 S.W.2d 1014, 1016 (Ky. 1952).

The practices declared "unlawful" by Chapter 344 are as follows: "It is an unlawful practice for an employer: (1) To . . . discriminate against an individual . . . because of the individual's race, color, religion, national origin, sex, age forty (40) and over. . . ." KRS 344.040(1), emphasis added. If there is no "employer" with at least eight employees, there is no "practice declared unlawful" under Chapter 344. Plaintiff cites Palmer as supporting his position because a retaliation claim was reversed. The Sixth Circuit has already distinguished Palmer as involving "whether a criminal remedy under § 344.990 precluded civil liability under § 334.280" and not whether individuals could be liable for retaliation. Stacy v. Shoney's, Inc., 1998 WL 165139 at *2 (6th Cir. 1998). Also important is the fact that Palmer's claim was based on the "participation" clause, under which there is no requirement of a "practice declared unlawful."

Plaintiff argues that he need not prove that the challenged practice is actually unlawful. This argument finds support in cases such as Johnson v. University of Cincinnati, 215 F.3d 561, 579-580 (6th Cir. 2000), in which the court considered the Equal Employment Opportunity Commission's interpretation of the statute. That same case, however, says that the "opposition [must] be based on 'a reasonable and good faith belief that the opposed practices were unlawful." Id. at 579. There can be no "reasonable and good faith belief" that discrimination by an employer with three or six employees is "unlawful" when the statute unambiguously requires a minimum of eight employees before any claim may be brought.

Claims in which a plaintiff cannot have a reasonable and good faith belief that the conduct is unlawful cannot proceed. For example, In Mattson v. Caterpillar, Inc., 359 F.3d 885 (7th Cir. 2004), the court affirmed summary judgment in favor of an employer when an employee claimed he was retaliated against because of his opposition to sexual harassment by his supervisor. The court held that no reasonable person could believe that a single incident of potentially accidental contact constituted sexual harassment.

The federal requirement of a minimum number of employees was designed "[t]o spare very small businesses from Title VII liability." Arbaugh v. Y H Corp., 546 U.S. 500, 504 (2006). In Arculeo v. On-site Sales Marketing, LLC, 321 F. Supp.2d 604 (S.D. New York 2004), the court considered the numerosity requirement and said:

First, the floor debate over § 2000e(b) indicates that the costs associated with defending against discrimination claims was a factor in the decision to implement a minimum employee requirement. In discussions over a proposed change to the minimum employee threshold, the burdens placed upon a small business forced to comply with federal regulations and defend against a Title VII suit were explicitly addressed. . . .

Plaintiff admits that a claim of discrimination under the KCRA cannot be made unless there is an "employer" with eight or more employees. Nonetheless, he tries to use the back door of a retaliation claim to open up the front door of liability that the legislature deliberately slammed shut. Under Plaintiff's theory, every small employer would now be burdened with the costs and liability from which the legislature said they were exempt. Plaintiff's argument is not supported by the letter or the spirit of the KCRA.

The lack of merit in Plaintiff's argument that KCRA retaliation claims apply to all employers, regardless of their size, is further demonstrated by the requirements of a prima facie case of retaliation. A plaintiff must show: that "(1) he or she engaged in protected activity, (2) the employer knew of the exercise of the protected right, (3) an adverse employment action was subsequently taken against the employee, and (4) there was a casual connection between the protected activity and the adverse employment action." Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008).

Owens cannot satisfy the very first requirement, that he engaged in "protected activity." Employees are protected from employer discrimination because of race, color, religion, national origin, sex, and age. KRS 344.040(1). The scope of the KCRA protection is expressly limited to employers with eight or more employees. KRS 344.040(2). Practices by employers with fewer than eight employees are not protected by the KCRA. Likewise, opposition to practices by employers with fewer than eight employees is not protected by KCRA.

For example, in Fox v. Eagle Distributing Company, Inc., 510 F.3d 587 (6th Cir. 2007), the court considered a claim based upon retaliation for a salesman discussing with a customer that upper management was out to get him and that he had filed suit. The court granted the employer's motion to dismiss because the statements to the customer "did not amount to opposition to an unlawful employment practice" by the employer. Id. at 592. "In order to receive protection under the ADEA, a plaintiff's expression of opposition must concern a violation of the ADEA." Id. Otherwise, the opposition is not protected. Similarly, Owens opposition must concern a violation of the KCRA; otherwise, it is not protected activity and he cannot state a KCRA claim.

It is the opinion of this Court that the opposition clause of KRS 344.280 does not create any independent cause of action, separate and apart from the remainder of Chapter 344. It only prohibits retaliation for opposition to a violation of the KCRA. The uncontradicted evidence is that Blackburn had only six employees and the Coroner's office only three, which three were also employees of Blackburn. Thus, Ward and Blackburn, separately or jointly, were not "employers" under the KCRA. Accordingly, Owens' federal constitutional claim must be reached in order for his retaliation claim to survive. The federal question is substantial.

II. Defendants' Motion to Dismiss

A. Standard

To withstand a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007), abrogating Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965. See also Association of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). In ruling upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), all of a plaintiff's allegations are presumed true, and the complaint is construed in the light most favorable to the plaintiff. Hill v. Blue Cross and Blue Shield of Michigan, 409 F.3d 710, 716 (6th Cir. 2005).

When a court considers matters outside the pleadings in support of a motion for failure to state a claim, "the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). The Court is converting the motions to dismiss into a motion for summary judgment. The issues is this matter are purely legal issues, and the primary one remaining is the constitutionality of the numerosity requirement of eight employees in KRS Chapter 344. The parties will brief this and any other pertinent legal issue in accordance with the schedule below.

II. CONCLUSION

IT IS ORDERED:

A. Plaintiff Owens motion to remand [DE 6] is DENIED.

B. The motions of Defendants Ward and Blackburn filed in the Woodford Circuit Court to dismiss the original Complaint and to dismiss the Amended Complaint are CONVERTED TO A MOTION FOR SUMMARY JUDGMENT. Plaintiff shall file any response on or before March 11, 2009 and Defendants shall file any reply on or before March 25, 2009. The matter will then be submitted to the Court for consideration.

C. Defendants' motions filed in the Woodford Circuit Court to seal and for a hearing are DENIED AS MOOT.