Opinion
CIVIL ACTION NO. 3:99CV-728-S.
July 11, 2001
MEMORANDUM OPINION
This matter is before the Court on the Defendants' motion for partial summary judgment. For the reasons described below, the motion will be granted by a separate order entered this date.
FACTS and PROCEDURAL HISTORY
The Plaintiff, Rachel Boone ("Boone") was a temporary worker at the plant of Kent Feeds, Inc. ("Kent"), one of the Defendants. She alleges that when she was hired for temporary work, she was told that she would eventually be made a permanent worker. Claiming that she was never offered permanent status because of her gender, she filed suit in Jefferson County, Kentucky, Circuit Court alleging gender discrimination, sexual harassment, retaliation and outrageous conduct, all under state law.
Boone's suit named as Defendants, Kent and its plant manager, Walter Coppinger ("Coppinger"). The Defendants subsequently removed the case to this Court. We have diversity jurisdiction pursuant to 28 U.S.C. § 1332.
The Defendants claim that their behavior, even as alleged by the Plaintiff, cannot as a matter of law support a claim for outrageous conduct. They also contend that Coppinger is not an "employer" as that term is defined in Kentucky law and that punitive damages are not recoverable under Kentucky Revised Statutes (K.R.S.) § 344.450.
DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); see. Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
However, the moving party's burden may be discharged by demonstrating that there is an absence of evidence to support an essential element of the nonmoving party's case for which he has the burden of proof. Id. at 323, 106 S.Ct. at 2552. Once the moving party demonstrates this lack of evidence, the burden passes to the nonmoving party to establish, after an adequate opportunity for discovery, the existence of a disputed factual element essential to his case with respect to which he bears the burden of proof. Id. If the record taken as a whole could not lead the trier of fact to find for the nonmoving party, the motion for summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
I. Sexual Harassment and Retaliation
As a preliminary matter, Boone has acknowledged that there was no sexual harassment or retaliation. (Pl.'s Mem. Resp. Summ.J. at 8.) Therefore, the Defendants' motion to dismiss those claims will be granted.
II. Outrageous Conduct
Kentucky law recognizes that a defendant who intentionally or recklessly causes severe emotional distress to another by engaging in extreme and outrageous conduct is liable for damages. Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984) ( citing Restatement (Second) of Torts § 46). In order to recover, a plaintiff must be able to show: (1) that a defendant acted intentionally or recklessly; (2) that the conduct was so outrageous as to offend generally accepted standards of decency and morality; (3) that the conduct caused the emotional distress; and (4) that the emotional distress was severe. Id. at 249. Further, in order to be outrageous, the conduct must "go beyond all possible bounds of decency and . . . be regarded as atrocious, and utterly intolerable in a civilized community." Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990) ( quoting Restatement (Second) of Torts § 46, comment d).
Kentucky considers the tort of outrage to be a "gap-filler." Rigazzio v. Archdiocese of Louisville, 853 S.W.2d 295, 298-99 (Ky.App. 1993). A plaintiff may not recover if the alleged conduct simply makes out a claim for another tort. Id. That Boone may have evidence sufficient for a claim of gender discrimination is accordingly not enough, standing alone, to maintain an outrage claim.
However, an exception exists to this general rule. When "actions or conduct are intended only to cause extreme emotional distress in the victim," the tort of outrage can be an appropriate remedy despite the fact that the conduct might also amount to a separate tort. Brewer v. Hillard, 15 S.W.3d 1, 8 (Ky.App. 2000). Therefore, the fact that Boone has made a claim for gender discrimination does not automatically negate her claim for outrage. She must, though, show that the Defendants intentionally took actions aimed at inflicting emotional distress and that those actions were outrageous.
The conduct upon which Boone relies for her outrage claim is that the Defendants allegedly promised her a permanent job and required her to do various menial tasks in preparation therefore, all the while knowing that they would not make an offer of permanent employment.
Boone has presented no evidence, other than her own speculation, that the Defendants' alleged actions were intentionally aimed at distressing her. In fact, her testimony is that the Defendants acted recklessly, rather than intentionally. (Boone Dep. at 156.)
Even were she to show such intentional conduct, we conclude that the Defendants' alleged actions would not rise to the level of atrocious, intolerable conduct beyond the bounds of decency. See Seitz, 796 S.W.2d at 3. Promising permanent employment with the intention to renege on the promise, even when coupled with an inducement to perform menial tasks as a condition of the false promise, is bad, even mean-spirited. A broken promise? Certainly. But is such conduct beyond all possible bounds of decency, or utterly intolerable in a civilized society? Hardly. As a matter of law, Boone cannot show on these facts conduct actionable as outrageous under Kentucky law.
III. Gender Discrimination
Boone also alleged a claim against Coppinger for gender discrimination under the Kentucky Civil Rights Statute, K.R.S. §§ 344.010 et seq. Coppinger urges that he is entitled to summary judgment on this claim because he does not meet the statutory definition of an "employer," and that only discrimination by employers is proscribed by Kentucky law. K.R.S. § 344.030(2) defines an "employer" as "a person who has eight (8) or more employees within the state . . . and any agent of such a person." The Sixth Circuit has held that this description does not include individual, supervisory employees. Wathen v. General Elec. Co., 115 F.3d 400, 406 (6th Cir. 1997). Because there is no dispute that Coppinger was a supervisor, he is entitled to judgment on this claim.
IV. Punitive Damages
The Defendants ask for summary judgment on the Plaintiff's punitive damage claim, arguing that punitive damages are not recoverable in a cause of action grounded upon K.R.S. § 344.450. The question of whether punitive damages are recoverable under that statute has been addressed by a number of courts, both state and federal.
The Kentucky Supreme Court recently granted discretionary review in Kentucky Dep't of Corrections v. McCullough, 2001-SC-0146-D, 2001 Ky. LEXIS 74, (Ky. April 18, 2001), a case which addresses the issue. As a federal court sitting in diversity, our task is to predict how that court will rule. Hines v. Joy Mfg. Co., 850 F.2d 1146, 1150 (6th Cir. 1988).
We have previously considered the issue. In Carlisle v. Frank Paxton Co., 3:95CV-495-S (W.D.Ky. Dec. 3, 1996), we held that punitive damages are not recoverable under § 344.450. We noted that this statute limits recovery to "actual damages" and reasoned that, because the Kentucky General Assembly had expressly provided for punitive damages for housing discrimination in K.R.S. § 344.660(1), but did not so provide with respect to employment discrimination, "we must infer a legislative intent to disallow punitive damages in a case such as this." Carlisle, at 1-2.
Since that ruling, Judge Heyburn in the Western District of Kentucky and Judge Forrester in the Eastern District of Kentucky both published opinions on the same issue. See Timmons v. Wal-Mart Stores, Inc., 33 F. Supp.2d 577 (W.D.Ky. 1999); Messick v. Toyota Motor Mfg. Kentucky, Inc., 48 F. Supp.2d 578 (E.D.Ky. 1999). The opinions were issued just days apart. Judge Heyburn found that punitive damages were recoverable. Timmons, 33 F. Supp.2d at 581.
On the other hand, Judge Forrester found that the exclusion of punitive damages from the remedies specified in § 344.450 militated against the allowance of such a claim in an employment discrimination case. Messick, 45 F. Supp.2d at 582.
Following the issuance of these opinions, the Kentucky Court of Appeals held in Kentucky Dep't of Corrections v. McCullough, No. 1998-CA-001403-MR, 1998-CA-001422-MR, 2000 Ky. LEXIS 57 at *18-19 (Ky.App. May 26, 2000), that punitive damages were recoverable. Shortly thereafter, the United States Court of Appeals for the Sixth Circuit held in Lewis v. Quaker Chemical Corp., 99-5405, 99-5482, 2000 U.S.App. LEXIS 22321, at *35 (6th Cir. Aug. 24, 2000), that they were not.
As noted above, the Kentucky Supreme Court granted discretionary review in McCullough, and so the decision of the Kentucky Court of Appeals is neither final nor binding.
Now having had the benefit of excellent legal reasoning reaching differing results, we believe upon consideration that our early analysis in Carlisle and that of Judge Forrester in Messick achieve the most sensible result in light of the language of § 344.450 and its legislative history.
The Kentucky civil rights laws were modeled on federal law. When § 344.450 was adopted by the Kentucky General Assembly, punitive damages were not recoverable under Title VII of the Civil Rights Act of 1964. See, e.g., Ellis v. Logan Co., 543 F. Supp. 586, 589 (W.D.Ky. 1982). Federal law was amended in 1991 to allow for punitive damages in cases of job discrimination. See Timmons, 33 F. Supp.2d at 580. However, since then, Kentucky's civil rights laws have been amended twice. The first time, in 1992, the remedy of punitive damages was added in cases of housing discrimination. See Messick, 45 F. Supp.2d at 582. The second time, in 1996, § 344.450 was amended, but punitive damages were not added to its list of remedies. Id.
We are not so ready, as was Judge Heyburn in Timmons, to reject the doctrine of expressio unius exclusio alterius. The doctrine has been cited favorably by Kentucky courts as recently as 1999. See Collins v. Com. of Ken. Nat. Resources, 10 S.W.3d 122, 127 (Ky. 1999). Nor are we as willing to distinguish the holding in Grzyb in which the Kentucky Supreme Court held that where "the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute." 700 S.W.2d at 401. While Grzyb, as found by Judge Heyburn, may have dealt with the exclusion of causes of action rather of remedies, we believe that the policy behind the holding applies equally to both scenarios. Section 344.450 both creates the cause of action and lists a host of available remedies which do not include punitive damages. The clearest expression of legislative intent possible under the circumstances is that punitive damages were not intended to be permitted in cases arising under § 344.450.
A separate order will be entered this date in accord with this opinion.
ORDER
For the reasons set forth in the memorandum opinion entered this date and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the motion of the Defendants is GRANTED. The Plaintiff's claims for:
(1) sexually harassment and retaliation;
(2) outrageous conduct;
(3) discrimination in violation of K.R.S. § 344, against Defendant, Walter Coppinger; and
(4) punitive damages and hereby DISMISSED with prejudice.