Opinion
No. 2008-CA-000323-MR.
February 20, 2009. NOT TO BE PUBLISHED
Appeal from Jefferson Circuit Court, Honorable Mary M. Shaw, Judge, Action No. 07-CI-005172.
Charles W. Miller, Rheanne Dodson Falkner, Amanda Birdwhistell Ward, Louisville, Kentucky, Brief for Appellant.
Kathryn A. Quesenberry, Loren T. Prizant, Louisville, Kentucky, Brief for Appellee.
Before: COMBS, CHIEF JUDGE; CAPERTON And CLAYTON, Judges.
OPINION VACATING AND REMANDING
This appeal is taken from a dismissal by the Jefferson Circuit Court of an employment discrimination claim filed by Antonio Nicholson (Nicholson) against Blue Grass Cooperage Company (BGC). Nicholson now appeals. After our review, we vacate and remand. Nicholson worked at BGC from April 14, 2003, until his termination in February 2005. Around November 15, 2005, Nicholson filed a Charge of Discrimination under federal Title VII against BGC with the Equal Employment Opportunity Commission (EEOC). Pursuant to normal procedures, the EEOC also sent a copy of the charge to the Kentucky Commission on Human Rights (KCHR), but the KCHR had no further involvement. On January 31, 2006, the EEOC issued Nicholson a Dismissal and Notice of Rights (right to sue letter). It determined that its investigation did not reveal any violations of Title VII, but it informed Nicholson that he could file a lawsuit.
In June 2007, Nicholson filed a lawsuit in Jefferson Circuit Court alleging that BGC had violated the Kentucky Civil Rights Act (KRS 344.450). BGC filed a motion to dismiss under Kentucky Rules of Civil Procedure (CR) 12.02(f), which the trial court granted on February 5, 2008. It is from this dismissal that Nicholson appeals.
Kentucky Revised Statutes.
CR 12.02(f) allows a defendant to move the court to dismiss a lawsuit if the complaint fails "to state a claim upon which relief can be granted." A dismissal is not to be easily granted. "The court should not grant the motion unless it appears the [plaintiff] would not be entitled to relief under any set of facts which could be proved in support of his claim." Pari-Mutuel Clerks' Union of Kentucky v. Kentucky Jockey Club, 551 S.W.2d 801, 802 (Ky. 1977). Because the trial court's dismissal was a matter of law, our review is de novo. Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky. 2000).
The issue we must examine is the doctrine of election of remedies; i.e., whether the EEOC's investigation barred Nicholson from pursuing judicial relief under state law. This court expressly designated the applicable law in Brown v. Diversified Decorative Plastics, LLC, 103 S.W.3d 108 (Ky.App. 2003). In Brown, we sat en banc to resolve an apparent conflict between Wilson v. Lowe's Home Center, 75 S.W.3d 229 (Ky.App. 2001), and Vaezkoroni v. Domino's Pizza, 914 S.W. 2d 341 (Ky. 1995). The Brown majority determined that Wilson is the proper rule.
Though the Supreme Court of Kentucky has not heard any election of remedies in employment discrimination cases since Wilson, it remanded Wright v. Highland Cleaners, Inc., 2003 WL 21241505 (Ky.App. May 30, 2003) to be reheard in light of Wilson.
In Wilson, the claimant filed a discrimination claim with both the EEOC and the KCHR. Before either agency concluded its investigation or rendered a ruling, the claimant withdrew the claim from the KCHR, and the EEOC issued a right-to-sue letter. As in the case before us, the claimant filed a civil lawsuit, which the circuit court dismissed.
The Wilson court first discussed KRS 344.270, which provides that:
[a] state court shall not take jurisdiction over any claim of an unlawful practice under this chapter while a claim of the same person seeking relief for the same grievance is pending before the commission. A final determination by a state court or a final order of the commission of a claim alleging an unlawful practice under KRS 344.450 shall exclude any other administrative action or proceeding brought in accordance with KRS Chapter 13B by the same person based on the same grievance.
We acknowledged that Chapter 344 creates both judicial and administrative avenues of relief that are not necessarily mutually exclusive. Wilson at 232.
We were concerned that the Supreme Court of Kentucky had earlier stated in Vaezkoroni that "`once any avenue of relief is chosen, the complainant must follow that avenue through to its final conclusion.'" Id. at 233, quoting Vaezkoroni 914 S.W.2d at 343. However, we found that Vaezkoroni was distinguishable on the facts, and the language just cited was, therefore, dicta. In Vaezkoroni, the commission had reached a final ruling; in Wilson, it had not. At the time that the Wilson complainant filed his suit in circuit court, he did not have any administrative or federal actions pending. Therefore, he was permitted to pursue his state law cause of action.
The Wilson court then looked to factually similar Kentucky cases and concluded that a claimant may pursue a claim in state court if he meets three criteria: 1) he has not received a final determination from the KCHR; 2) he has not received a final ruling from an administrative body; or 3) he does not have a pending administrative claim. Wilson at 234. The EEOC's ruling was not final because it applies only to Title VII situations rather than to state statutory violations. The Kentucky Civil Rights Act and Title VII offer different remedies. McNeal v. Armour, 660 S.W.2d 957, 959 (Ky.App. 1983). In the case now before us, the facts are not perfectly congruent with those in Wilson. Nicholson never actively withdrew his complaint from the KCHR. However, we note one of the cases upon which Wilson relied. In Clifton v. Midway College, 702 S.W.2d 835, 837 (Ky. 1985), the complainant received a right-to-sue letter from the EEOC; the KCHR was not involved beyond its requisite notification from the EEOC. Our Supreme Court held that:
once a claimant alleging illegal discrimination has received a "Notice of Right to Sue," nothing in KRS 344.270 is an obstacle to asserting a claim in a Kentucky circuit court pursuant to KRS 344.450, so long as the claimant does not seek to use a parallel remedy in federal court[.] (Emphasis added.)
citing McNeal at 958. Thus, the triggering event allowing a claimant to sue in state court is receipt of the right-to-sue letter and his election then to seek state relief alone rather than pursuing a federal remedy.
Although we find that Wilson is dispositive of Nicholson's suit to proceed, we shall also address BGC's other argument. BGC claims that the time limits set forth in the right-to-sue letter precluded Nicholson from filing his suit in state court. That letter informed Nicholson as a Title VII claimant that he might:
file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this Notice; otherwise, your right to sue based on this charge will be lost. (The time limit for filing suit based on a state claim may be different.) (Emphasis original).
Since Nicholson's claim was based on state law, the EEOC's time limit was irrelevant — according to its own terms. BGC based its argument on an understandable but nonetheless misperceived application of the procedure set forth in EEOC's letter.
The Kentucky Civil Rights Act (again, KRS 344.450) creates the right for employees to sue their employers for discriminatory acts. Its applicable statute of limitations is KRS 413.120, which provides an expansive filing period of five years from the date of the offense. Clifton, 702 S.W.2d at 837. Nicholson was terminated in February 2005, and he filed his complaint in June of 2007 — well within the five-year statute of limitations.
Based on the precedent of Wilson and the pertinent statute of limitations, we hold that Nicholson's suit was properly filed in circuit court. Therefore, the trial court erred in dismissing this case. We vacate the order dismissing and remand this case for additional proceedings.
ALL CONCUR.