Opinion
NO. 2011-CA-000614-MR
03-01-2013
CINDRA J. SUITER APPELLANT v. LOGAN COUNTY REGIONAL DETENTION CENTER; LOGAN COUNTY JUDGE EXECUTIVE, LOGAN B. CHICK; AND CHIEF JAILER, BILL JENKINS APPELLEES
BRIEF FOR APPELLANT: Pamela C. Bratcher Bowling Green, Kentucky BRIEF FOR APPELLEES: Harold M. Johns Elkton, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 09-CI-00435
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
BEFORE: MAZE, MOORE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Cindra J. Suiter brings this appeal from a March 3, 2011, summary judgment of the Logan Circuit Court dismissing Suiter's claim of sexual harassment under the Kentucky Civil Rights Act. We affirm in part, reverse in part, and remand.
On June 14, 2004, Suiter was hired as a deputy jailer by Jailer Bill Jenkins. Some four years later, in August 2008, Suiter formerly complained that another employee, Lieutenant DeWayne Reynolds, had subjected her to repeated sexual harassment while working at the Logan County Regional Detention Center (Logan Detention Center). Specifically, Suiter claimed that Lt. Reynolds made inappropriate sexual comments, touched the inside of her leg, grabbed and kissed her, made sexual innuendos, and requested her to commit sexual acts. Upon Suiter's complaint of sexual harassment, Jailer Jenkins undertook an investigation of Suiter's claims, and, in a written investigative report, Jailer Jenkins determined that Suiter's allegations of sexual harassment could not be "substantiated."
Consequently, Suiter filed a complaint in the Logan Circuit Court against "Logan County Regional Detention Center, Logan County Judge Executive Logan B. Chick, and Chief Jailer Bill Jenkins" (collectively referred to as appellees). In the complaint, Suiter alleged violation of the Kentucky Civil Rights Act (Kentucky Revised Statutes (KRS) Chapter 344) and 42 U.S.C. § 1983. However, Suiter failed to specifically articulate whether Jailer Jenkins was named in his individual and/or official capacity. In the answer and in the motion for summary judgment, appellees treated the complaint as setting forth claims against Jailer Jenkins both individually and officially. And, in Suiter's response to appellees' motion for summary judgment, Suiter argued that:
[Suiter] has filed this complaint against the Logan County Regional Detention Center, Logan County Judge Executive Logan B. Chick, and Chief Jailer Bill Jenkins. The Defendant agrees that this lawsuit should be considered a claim against Logan County. Logan County is responsible for the violation of [Suiter's] civil rights by employees of Logan County, including the Logan County Regional Detention Center employees.Nevertheless, the circuit court treated the complaint as only naming Jailer Jenkins in his individual capacity. The circuit court rendered summary judgment dismissing Suiter's complaint in its entirety against appellees. In particular, the court determined that Jailer Jenkins was shielded from liability in his individual capacity by the doctrine of qualified official immunity. This appeal follows.
Suiter claims that the circuit court erred by rendering summary judgment dismissing her claims against appellees under the Kentucky Civil Rights Act. Summary judgment is proper where there exists no material issue of fact and movant is entitled to judgment as a matter of law. Kentucky Rules of Civil Procedure 56; Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). When considering a motion for summary judgment, all facts and reasonable inferences therefrom are viewed in a light most favorable to the nonmoving party. Id.
In Cindra J. Suiter's complaint, she raised claims under the Kentucky Civil Rights Act and 42 U.S.C. § 1983. However, in the summary judgment entered March 3, 2011, the circuit court only resolved claims under the Kentucky Civil Rights Act. The circuit court failed to mention or analyze Suiter's claims under 42 U.S.C. § 1983. Consequently, Suiter's claims under 42 U.S.C. § 1983 have not been adjudicated and are still pending before the circuit court. Under Kentucky Rules of Civil Procedure 54.02, the circuit court was well within its authority to transform the March 3, 2011, summary judgment into a final and appealable order as a claim was fully adjudicated as to all parties. Additionally, an order adjudicating an immunity issue may be appealed even though interlocutory. See Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009).
Suiter's primary allegations of error focus upon the propriety of the circuit court's dismissal of all claims against Jailer Jenkins on the basis of qualified official immunity. For the reasons hereinafter set forth, we conclude that the circuit court erred by dismissing Suiter's claims under the Kentucky Civil Rights Act against Jailer Jenkins.
To begin, it is apparent the circuit court was confused as to whether Suiter named Jailer Jenkins in his official and/or individual capacities in her complaint. In her complaint, Suiter failed to specifically identify whether Jailer Jenkins was named individually and/or officially but did specifically identify Jenkins as "Chief Jailer." Per Jenkins' answer and subsequent motion for summary judgment, Jailer Jenkins believed that Suiter named him in both capacities - official and individual. And, in Suiter's response to appellee's motion for summary judgment, it is evident that Suiter sought to recover against Logan County and considered her claim to be in reality against the county. However, in the summary judgment, the circuit court determined that Jenkins was only named in his individual capacity. It is imperative to initially resolve this issue as our immunity analysis under the Kentucky Civil Rights Act is dependent thereupon.
In this Commonwealth, we determine whether a complaint names an official in his individual and/or official capacities by looking to the pleadings as a whole and by construing the pleadings as "to do substantial justice." McCollum v. Garrett, 880 S.W.2d 530, 533 (Ky. 1994). With the advent of the Rules of Civil Procedure, our Court is directed not to "approach pleadings searching for a flaw, a technicality upon which to strike down a claim or defense." Id. at 533 (quoting Smith v. Isaacs, 777 S.W.2d 912, 915 (Ky. 1989)). Rather, a rule of "liberal construction" should be utilized where a pleading is viewed "according to . . . substance rather than [a] label or form." McCollum, 880 S.W.2d at 533. Moreover, it must be emphasized that "[t]he purpose of a complaint is to give notice." Bolin v. Davis, 283 S.W.3d 752, 756 (Ky. App. 2009).
Considering our liberal construction rule, the parties' post-complaint filings, and the lack of prejudice to Jailer Jenkins, we construe Suiter's complaint as setting forth a cause of action against Jailer Jenkins in his official and individual capacities. Having so concluded, we next examine whether immunity bars Suiter's claims under the Kentucky Civil Rights Act against Jailer Jenkins in his official and individual capacities. We address each capacity seriatim.
It is well-settled that a public officer who is sued in his official capacity is afforded the same immunity as the pertinent governmental entity. Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001). A jailer is a constitutionally elected officer of the county under the Kentucky Constitution Section 99, and a claim against a jailer in his official capacity is in reality a claim against the county. Com. v. Harris, 59 S.W.3d 896 (Ky. 2001). As a political subdivision of this Commonwealth, a county is entitled to sovereign immunity against civil actions, and sovereign immunity generally operates as a bar to civil liability unless waived by the General Assembly. Id.
As to an action under the Kentucky Civil Rights Act, our Supreme Court has held that sovereign immunity is legislatively waived regarding claims against the Commonwealth and its political subdivisions, including counties. Ammerman v. Dept. of Educ., 30 S.W.3d 793 (Ky. 2000); Dept. of Corr. v. Furr, 23 S.W.3d 615 (Ky. 2000). In so holding, the Court determined that the purposes of the Kentucky Civil Rights Act coupled with its definition of "employee" constituted an implied waiver of the sovereign immunity usually afforded the state and the county. Furr, 23 S.W.3d at 618.
In accordance with established precedent, it is evident that Logan County is not shielded by sovereign immunity as to Suiter's claims under the Kentucky Civil Rights Act. Consequently, Jenkins, in his official capacity as Logan County Jailer, is, likewise, not shielded by sovereign immunity against claims under the Kentucky Civil Rights Act. Rather, Jenkins, in his official capacity as Logan County Jailer, is amenable to suit as a constitutional officer of Logan County under the Kentucky Civil Rights Act.
In his individual capacity, Jenkins is entitled to assert qualified official immunity against Suiter's claims under the Kentucky Civil Rights Act. Qualified official immunity shields a public official from liability when sued in his individual capacity. To be entitled to qualified official immunity, the public official must be performing a discretionary act as opposed to a ministerial act. A ministerial act is generally "one that requires only obedience to the orders of others, or when the officer's duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts." Yanero, 65 S.W.3d at 522. On the other hand, a discretionary act is one "involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment." Id. at 522. There is no qualified official immunity for the performance of a ministerial act. Id. Thus, the distinction between a discretionary act and ministerial act is pivotal.
In the summary judgment, the circuit court held that "[t]he acts of Jailer Jenkins in investigating Suiter's allegations and in determining whether to take disciplinary action against [Lt.] Reynolds are clearly discretionary decisions." We believe the circuit court erred by focusing upon Jenkins' acts of investigating the sexual harassment allegations and his decision as to appropriate disciplinary action. These acts by Jailer Jenkins are not the proper inquiry as to Suiter's claim under the Kentucky Civil Rights Act. Rather, the appropriate inquiry should focus upon whether Jailer Jenkins knew or should have known of Lt. Reynolds' repeated sexual harassment and failed to take proper corrective action. Our reasoning is as follows.
In her complaint, Suiter claimed that her work environment at the Logan Detention Center was intolerable because of Lt. Reynolds' repeated sexual harassment. To prevail upon a claim of hostile work environment and sexual harassment by a non-supervising co-worker under the Kentucky Civil Rights Act, Suiter was specifically required to demonstrate:
(1) she was a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based upon sex; (4) the harassment unreasonably interfered with the plaintiff's work performance or created a hostile or offensive work environment that was severe and pervasive; and (5) the employer knew or should have known of the charged sexual harassment and failed unreasonably to take prompt and appropriate corrective action.Fenton v. HiSAN, 174 F.3d 827, 829-30 (6th Cir. 1999). As to Jailer Jenkins, it was incumbent upon Suiter to demonstrate that Jailer Jenkins knew of the sexual harassment by Lt. Reynolds or should have known of it and failed to take proper corrective action. Thus, for purposes of Suiter's claim under the Kentucky Civil Rights Act, the alleged wrongful "acts" of Jailer Jenkins was that he knew or should have known of the sexual harassment and failed to take proper corrective action.
We cite to Fenton v. HiSAN, 174 F.3d 827, 829-30 (6th Cir. 1999) as persuasive authority and note that it accurately sets forth Kentucky law. See Jefferson County v. Zaring, 91 S.W.3d 583 (Ky. 2002); Williams v. Walmart, Inc., 184 S.W.3d 492 (Ky. 2005).
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The alleged failure of Jailer Jenkins to take proper action to abate workplace sexual harassment when he knew or should have known thereof does not constitute a discretionary act but rather constitutes a ministerial act. Jailer Jenkins was legally mandated to take proper corrective action to stop the sexual harassment when he knew or should have known of such harassment. KRS 344.040. And, the legal mandate upon Jailer Jenkins to take proper corrective measures to abate the sexual harassment is absolute, certain, and not subject to discretion or personal deliberation. Accordingly, we hold that Jailer Jenkins' alleged wrongful act was ministerial; therefore, he was not entitled to assert qualified official immunity in this action. And, the circuit court erred by concluding otherwise.
In Suiter's brief, she seemingly abandons any issues of error related to the circuit court's dismissal of the Logan Detention Center and of Judge Executive Logan B. Chick, except to generally argue that summary judgment was premature. As to Suiter's argument concerning the prematureness of summary judgment, we discern no merit and affirm the same.
In sum, we hold that the circuit court improperly rendered summary judgment dismissing Suiter's claims under the Kentucky Civil Rights Act against Jailer Jenkins in his individual and official capacities. The circuit court's summary judgment as to the Regional County Detention Center and Logan County Judge Executive Logan B. Chick is affirmed.
For the foregoing reasons, the summary judgment of the Logan Circuit Court is affirmed in part, reversed in part, and this case is remanded for proceedings consistent with this Opinion.
MAZE, JUDGE, CONCURS.
MOORE, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Pamela C. Bratcher
Bowling Green, Kentucky
BRIEF FOR APPELLEES: Harold M. Johns
Elkton, Kentucky