Summary
declining to dismiss a KCRA claim because plaintiff withdrew her discrimination claim from the Kentucky Human Rights Commission (hereinafter "KHRC") prior to filing suit
Summary of this case from Blair v. Victory Packaging, L.P.Opinion
CIVIL ACTION NO. 3:00CV-764-H
October 17, 2001
MEMORANDUM OPINION
Plaintiff, Shirley Thomas, filed a sexual discrimination claim in state court under Chapter 344 of the Kentucky Revised Statutes. Defendant, Forest City Enterprises, removed the case to this Court based on diversity jurisdiction. Now Defendant moves to dismiss the entire complaint as barred by the election of remedies provision contained in KRS 344.270. In Founder v. Cabinet for Human Res., 23 S.W.3d 221 (Ky.Ct.App. 1999), the Kentucky Court of Appeals held that filing a claim with the Kentucky Commission on Human Rights ("KCHR") does bar a subsequent court action. If Founder controls here, then the Court must dismiss this case.
The relevant facts here are reasonably straightforward. On February 29, 2000, Plaintiff filed a "charge of discrimination" docket with the Louisville and Jefferson County Human Relations Commission (the "LHRC") and the federal Equal Employment Opportunity Commission (the "EEOC"). Plaintiff's precise intentions are unclear. She used an EEOC form, but filed with the LHRC. Kentucky is a dual filing state and under a cooperative agreement the LHRC can undertake the investigation on behalf of itself and the EEOC. Here, the complaint contained an LHRC and EEOC file number and the LHRC actually undertook the investigation. The LHRC forwarded a copy of the complaint to Defendant and asked for a response. Defendant provided a timely explanation for its conduct.
However, before the investigation could proceed any further, on May 8, 2000 Plaintiff requested that her complaint be withdrawn so that the EEOC could conduct its own investigation. To do so, she used a form provided to her by LHRC. On May 12, 2000, the LHRC issued an order allowing withdrawal. Thereafter, the EEOC undertook the investigation. On July 6, 2000, the EEOC notified Defendant of a charge of discrimination under Title VII. On July 25, 2000, the EEOC issued a right-to-sue letter as provided for by statute. Thereafter, on October 26, 2000, Plaintiff filed this action in Jefferson Circuit Court under KRS 344.010, et seq.
I.
Sitting in diversity, this Court must apply Kentucky law. Erie Ry. Co. v. Tompkins, 304 U.S. 64 (1938). In determining Kentucky law only the decisions of the highest court of Kentucky bind this Court. See Comm'r of Internal Revenue v. Bosch, 387 U.S. 456, 465 (1967). To be sure the holdings of other state courts may provide indications of what the highest court may do. However, such holdings are not absolute predictors. They can inform this Court's determination of the content of state law, but "should a fortiori not be controlling." Id. at 465. Ultimately, this Court must predict how the state's highest court would rule. Dinsmore Instrument Co. v. Bombardier, Inc., 199 F.3d 318, 320 (6th Cir. 1999) (citing Northland Ins. Co. v. Guardsman Prods., Inc., 141 F.3d 612, 617 (6th Cir. 1998)). The Court may disregard an intermediate state court decision where convinced that the highest state court would decide otherwise. See Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178, 1181 (6th Cir. 1999). In such an instance, this Court's decision does not overrule the intermediate appellate court. Rather, after examining the whole body of relevant law, including the intermediate court's decision, the Court predicts how the highest court in the state would rule on the issues relevant to this case.
II.
The Kentucky Civil Rights Act provides two avenues for relief: administrative and judicial. Vaezkoroni v. Domino's Pizza, Inc., 914 S.W.2d 341, 342-343 (Ky. 1996). One may pursue the judicial remedy in state circuit court. KRS 344.450. The administrative avenue contains several alternatives. KCHR and any local human relations commission such as the LHRC, are treated the same. One may apply for relief to either organization, but not both. Id. Any party may appeal the adverse decision of the KCHR or local commission to the state circuit court. KRS 344.240. The election of remedies provision of the Kentucky Civil Rights Act states:
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.
Kent. Rev. Stat. Ann. § 344.270. The plain language of the statute is instructive and seemingly straightforward. If a grievance "is pending" the statute deprives courts of jurisdiction over the claim; if the KCHR has issued a final order, the statute excludes any further action on that claim, except the appeal provided in KRS 344.240. However, where one withdraws a claim, two things would seem to be true: (1) it is no longer "pending" and (2) no final order exists. Section 270 provides alternative avenues of relief which may not be pursued simultaneously. The section nowhere states that by choosing one avenue a complainant is forever barred from pursuing other avenues of relief. The express language of Section 344.270 simply does not bar a subsequent civil state court claim. Unfortunately, not every judicial interpretation is so straightforward.
Just recently the Kentucky Court of Appeals concluded that the filing of a claim with the KCHR bars a subsequent action in court. Founder v. Cabinet for Human Res., 23 S.W.3d 221 (Ky.Ct.App. 1999). Defendant argues that this precedent requires this Court to dismiss Plaintiff's claim. During the course of its research and analysis, this Court determined that it disagrees with the analysis in Founder. Nevertheless, this Court is mindful that it cannot ignore Founder's holding simply due to its own disagreement. See Clutter v. Johns-Manville Sales Corp., 646 F.2d 1151, 1153 (6th Cir. 1981) (holding that "[i]f the state appellate court announces a principle and relies upon it, that is a datum not to be disregarded by the federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise."). The Court must consider the factors explained in Section I of this Memorandum Opinion.
First, as demonstrated in the preceding paragraph, such an interpretation seems to disregard the plain language of the statute by giving determinative weight to whether a claim was ever filed with the KCHR, rather than whether a claim is currently pending with the KCHR. A prohibition against the simultaneous prosecution of an identical claim in administrative and civil court proceedings is different than an election of remedies provision. By its plain language KRS 344.270 provides for the former, not the latter. Second, it imposes a rigid formalism on the doctrine of election of remedies not found in the statute and long since abandoned by courts. See, e.g, EEOC v. Frank's Nursery Crafts, Inc., 177 F.3d 448, 464 (6th Cir. 1999) (stating that courts have "long recognized . . . the demise" of the election of remedies doctrine). Moreover, an election of remedies in this context could reasonably mean either that one may not pursue more than one administrative remedy or one may not simultaneously pursue administrative and judicial remedies.
The Court also examined election of remedies provisions in other states to determine if analogues would provide guidance in resolving this issue. The New York Human Rights Law election of remedies provision provides a perfect example of the important distinction overlooked by the Founder court. New York Executive Law § 297(9) states in relevant part: "No person who has initiated any action in a court of competent jurisdiction or who has an action pending before any administrative agency . . ., may file a complaint with respect to the same grievance under this section . . . ." Courts interpret this provision to find that the "initiation of any court action . . . constitutes an election and a waiver of the right to commence an administrative proceeding." Ramos v. New York City Police Dept., 487 N.Y.S.2d 667, 671 (1985). However, the law precludes those who filed an administrative action from filing a lawsuit "only during the actual pendency" of their administrative action. Id. at 672.
The Kentucky election of remedies provisions mirrors the New York law governing those who have filed administrative actions who now seek judicial redress. As such, the important question should be whether the administrative action "is pending."
The Court has reviewed the Kentucky Supreme Court cases which provide Founder's underlying authority. The holdings and dicta of those cases seem at odds with the appellate court's ultimate conclusion. In Vaezkoroni v. Domino's Pizza, Inc., 914 S.W.2d 341, 343 (Ky. 1996), the Kentucky Supreme Court considered a plaintiff who filed three separate complaints with the KCHR. The KCHR investigated each one and found that no probable cause existed. The plaintiff then sought administrative review, and when unsuccessful, brought suit in court. The Kentucky Supreme Court barred the judicial remedy on the basis of election of remedies. Unlike the case at bar, Vaezkoroni concerned circumstances where the administrative agency had investigated a complaint and had made a final determination of the merits. The Kentucky Supreme Court did write, however, that "[o]nce any avenue of relief is chosen, the complainant must follow that avenue through to its final conclusion." The Supreme Court reaches this conclusion to "give meaning to and carry out the obvious purposes of the act as a whole." Id. at 342. However, nowhere does the statute express an intent to require one to make such an irrevocable election of remedies. Notably, such a requirement would be different than the federal scheme which the state statute is designed to mirror and which requires an administrative filing rather than an election of remedies. Where, as here, administrative complaints are docketed with the LHRC and the EEOC, such a requirement would likely cause confusion among unsophisticated claimants acting without benefit of counsel. Indeed, such obvious confusion and the resulting technicalities seems at odds with the broad purposes of the act.
Some have mentioned that the administrative process is designed to encourage mediation of legitimate disputes and to unburden employers from an onslaught of lawsuits. This Court's interpretation seems entirely consistent with the accomplishment of that objective.
The Founder court also relied upon Clifton v. Midway College, 702 S.W.2d 835 (Ky. 1986), as supporting its position. This Court finds support for the Founder court's conclusion only in the narrowest reading of Clifton. For one, in Clifton, the Kentucky Supreme Court discusses McNeal v. Armour and Co., 660 S.W.2d 957 (Ky.Ct.App. 1983), with approval. Clifton, 702 S.W.2d at 837. McNeal favors this Court's conclusion, rather than supporting Founder. The Kentucky Supreme Court's broad language in Clifton is equally supportive, stating "[c]learly the complainant has been the victim of a bureaucratic shuffle without the benefit of any kind of evidentiary hearing on the merits of her charges." Id. As such, the court continued, "Clifton has not elected remedies so as to remove jurisdiction from the circuit court. There has been no final determination by an agency so as to prevent consideration by a court . . . ." Id. at 838. Thus, Clifton suggests that only when one obtains a final determination has one elected an exclusive remedy under the statute. Such an interpretation is entirely consistent with the plain meaning of the statute. Moreover, our case is somewhat akin to Clifton in that Plaintiff's initial discrimination complaint was confusingly listed as filed both with the LHRC and the EEOC. The Court is convinced, therefore, that its own analysis of these two Kentucky Supreme Court cases represents the actual direction that the Supreme Court would take under the facts of this case.
This Court believes that McNeal correctly interpreted the election of remedies provision as only prohibiting simultaneous judicial and administrative action. The court stated:
Consequently, we hold that a person who has made a complaint of employment discrimination with the EEOC cannot invoke the jurisdiction of a Kentucky court under KRS 344.450 while his claim is pending with the federal body. However, if his claim is not resolved by the EEOC and that body relinquishes jurisdiction or responsibility over his claim by issuing to him what is commonly known as a "right to sue" letter . . ., we hold that the claimant may bring an action in a Kentucky court under KRS 344.450 . . . .McNeal, 660h S.W.2d at 958. McNeal did concern circumstances in which the employees filed an EEOC claim, received a "right to sue" letter and then filed an action under Chapter 344. However, KRS 344.270 seems to make no distinction between EEOC administrative actions and those by the KCHR or the LHRC. The same principal of law and statutory interpretation would seem to apply.
In our case, Plaintiff appears to have filed her initial complaint with both the LHRC and the EEOC. Prior to deciding that she wanted to proceed solely through the EEOC, Plaintiff did not receive a final determination from either. By making this subsequent election, she does not appear to have violated any command contained in KRS 344.270. Moreover, making an administrative claim with the EEOC only temporarily divests the state courts of jurisdiction. After receiving a "right to sue" letter, Plaintiff may bring an action in state court under KRS 344.450. McNeal v. Armour Co., 660 S.W.2d at 958.
Defendant is absolutely correct that Founder supports its position. However, this Court respectfully predicts that, faced with our case, the Kentucky Supreme Court would follow its own logic and analysis in Clifton rather than Founder. This prediction arises from the persuasive evidence in the Supreme Court's own writings and the language of the statute itself. Absent a final determination by the administrative agency, therefore, the election of remedies provision of the Kentucky Civil Rights Act does not bar Ms. Thomas' claim.
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
Defendant has moved to dismiss. The Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant's motion to dismiss is DENIED.