Summary
finding the KCRA inapplicable where "[n]one of the discriminatory actions Plaintiff claims . . . occurred in Kentucky."
Summary of this case from Himmelheber v. EV3, Inc.Opinion
Civil Action No. 3:03CV-277-H.
July 6, 2004
MEMORANDUM OPINION
Plaintiff, Deborah Ferrer ("Plaintiff") claims that Defendants, MedaSTAT USA LLC ("MedaSTAT"), Kevin M. McKim (MedaSTAT's president), and Paul Elmes (MedaSTAT's chief executive officer), violated the Kentucky Civil Rights Act, KRS Chapter 344 ("KCRA" or "the Act"). Plaintiff alleges that Defendants: (1) discriminated against her on the basis of her sex, thereby creating a hostile work environment; (2) committed sexual harassment quid pro quo, by discharging her when she refused the sexual demands of a supervisor; and (3) committed retaliation in terminating her when she exercised her rights under the KCRA. Plaintiff also claims the tort of outrage against Defendants McKim and Elmes in their individual capacity. Defendants have moved for summary judgment on all claims.
I.
MedaSTAT was formed in Kentucky and has its principle place of business in Louisville, Kentucky. It supplies specialty beds, oxygen therapy equipment, and other types of therapy equipment to nursing home residents in numerous states. In February 2001, MedaSTAT interviewed Plaintiff for the Florida Regional Sales Manager position in Louisville, Kentucky. She was hired the same day. Plaintiff received a company car in Louisville prior to the start of her employment. Plaintiff received two and a half days of orientation in Louisville. Plaintiff came to Kentucky only on these three occasions in the course of her employment with MedaSTAT. Plaintiff was responsible for MedaSTAT's business in Florida and Alabama.
Plaintiff alleges that the sexually oriented, offensive, inappropriate, and predatory comments started almost immediately. Plaintiff says that McKim made statements such as "I knew Paul [Elmes] would hire you . . . I ran back to Paul's office and said `Debbie is here' and `you are going to like it,'" and Elmes saying "I knew I wanted you right away," were sexual in nature. While co-traveling with Plaintiff, Elmes said he did not want her married or involved. While co-traveling with McKim, Plaintiff mentioned her girlfriend, and McKim responded by saying "when we get to know each other better, we'll go to New York City, I'll meet your girlfriend. We'll have lots of fun." McKim verbalized to Plaintiff that he "thought of everything in sexual terms." Such statements were always sandwiched with comments about how much money she would make and how far she would go in the company. McKim and Elmes constantly talked about women, women's behavior, and women's anatomy. McKim and Elmes even began talking about Plaintiff's daughter in a suggestive way. All of these statements by McKim and Elmes caused Plaintiff to be scared, upset, nervous, and appalled. None of these events occurred in Kentucky.
The majority of Plaintiff's allegations, as to her hostile environment, quid pro quo sexual harassment, and retaliation claims, stem from one occurrence with a MedaSTAT co-worker Brian Woolsey. On May 15, 2001, Woolsey traveled from Louisville to Florida to teach Plaintiff about MedaSTAT's methods of operation. Woolsey made several sales calls with Plaintiff. Later that night at dinner, Woolsey began by propositioning Plaintiff to use drugs and have sex with him. Woolsey told Plaintiff how attractive she was, that anyone would want to have sex with her including Elmes, and that if "you scratch my back, I'll scratch yours." Woolsey discussed his open relationship with his wife, that his wife was bi-sexual and would "like" Plaintiff, and finally, that he wanted to do illegal drugs and have sex with Plaintiff. Plaintiff declined and left the restaurant. Woolsey followed Plaintiff to her car, grabbed her arm, and told her that she would be missing a "good time." Plaintiff was afraid, dumbfounded, repulsed, and indignant at Woolsey's disrespectful behavior.
When Plaintiff arrived home Woolsey called her two times and again asked her to join him. Plaintiff responded that she did not want to, to which Woolsey said that he "might as well drive back to Louisville now." Plaintiff states she was not valued for her business skills but what she could offer sexually. Plaintiff decided to contact Elmes and McKim immediately, even though it was around ten o'clock at night. Both were at the Louisville office when Plaintiff called. Plaintiff talked to McKim who said that he would investigate the situation. Elmes also got on the phone, and Plaintiff states that he was angry at her for what had occurred with Woolsey. McKim told Plaintiff to write a report of the incident and send it to him in the morning.
Within forty-eight hours of sending her complaint, Plaintiff received a letter from McKim suspending her employment with MedaSTAT. Plaintiff had undergone ruptured disk surgery during her short employment with MedaSTAT. MedaSTAT's suspension letter was in response to the doctor's release submitted by Plaintiff on May 10, 2001, which said that she could not sit for longer than thirty minutes and therefore could not fulfill the driving requirements of her job. MedaSTAT's letter stated that Plaintiff's condition precluded her from fulfilling the duties listed in her job description, and the basis of the suspension was the risk she posed to herself and others while driving the company car. The letter went on to say that upon MedaSTAT receiving a doctor's release allowing Plaintiff to perform her duties, her status would be reviewed.
On May 24, 2001, MedaSTAT sent Plaintiff a letter terminating her position as Regional Manager. Based on the evaluation, MedaSTAT found that Plaintiff failed to place even one specialty bed in a nursing home — the primary focus of her job. MedaSTAT also asserts that Plaintiff failed to develop a positive working relationship with subordinates. Plaintiff feels she was fired because she reported Woolsey's sexual harassment. MedaSTAT terminated Plaintiff several days before the conclusion of her probation period. McKim and Elmes picked up the company car from Plaintiff in Florida. Plaintiff was employed by MedaSTAT for eighty-seven days before being terminated.
II.
Plaintiff alleges Defendants violated the KCRA by creating a hostile work environment, committing sexual harassment quid pro quo, and retaliating against Plaintiff for reporting the sexual harassment to superiors. Plaintiff only alleges KCRA violations in her complaint, and this Court's jurisdiction is based solely on diversity jurisdiction — no federal claims or questions are asserted. Defendants move for summary judgment on all of the KCRA claims because the conduct Plaintiff claims amounted to sexual harassment occurred outside the state of Kentucky. Defendants argue that the Kentucky Supreme Court has expressly prohibited such extraterritorial application of the KCRA in Union Underwear Comp., Inc. v. Barnhart, 50 S.W.3d 188 (Ky. 2001). This Court agrees.
In Union Underwear, the plaintiff brought a claim against his employer, Fruit of the Loom, alleging he had been illegally discharged because of his age in violation of the KCRA. 50 S.W.3d at 189. Union Underwear concerned whether an employee employed outside the state of Kentucky could assert a claim against an employer located in Kentucky as to decisions made in Kentucky. The defendant employer maintained its headquarters in Bowling Green, Kentucky; this was the plaintiff's only connection to Kentucky. Id. During all of plaintiff's employment he lived and worked outside of Kentucky — in both South Carolina and Alabama. Id. at 190. He was employed in South Carolina when dismissed from his job. Id. Any discrimination occurred in either South Carolina or Alabama. Id. The court held that the KCRA does not have extraterritorial application, and that based upon the facts of plaintiff's case, allowing him to obtain relief under the KCRA would be an extraterritorial application of the Act. Id. at 193.
Plaintiff has never lived or worked in Kentucky. Plaintiff only came to Kentucky three times to visit MedaSTAT's headquarters. None of the discriminatory actions stem from these three visits. None of the discriminatory actions Plaintiff claims make up the hostile work environment, sexual harassment quid pro quo, or retaliation claims occurred in Kentucky. The alleged hostile work environment actions by either Elmes and/or McKim all occurred outside of Kentucky while co-traveling on business trips with Plaintiff, or they occurred via telephone conversation with McKim and Elmes in Kentucky and Plaintiff in Florida. All of the actions by Woolsey were outside of Kentucky in Florida. In light of the Union Underwear holding, allowing Plaintiff's asserted claims would be an extraterritorial application of the KCRA. Even though Defendant's decisions as to Plaintiff's employment were made in Kentucky, it is the fact that Plaintiff was located outside the state of Kentucky that controls the application of the KCRA. Id. at 193 n. 1.
Plaintiff attempts to distinguish her own circumstances from those of the plaintiff in Union Underwear. Plaintiff asserts that she had many more contacts to Kentucky than the Union Underwear plaintiff because she was inextricably intertwined with her Kentucky employer. Her immediate supervisors, Elmes and McKim, lived in Kentucky. Plaintiff called in or faxed the Louisville office virtually every day. MedaSTAT issued her a Louisville cell phone with a Louisville area code, her secretaries were in Louisville, and Plaintiff's paychecks and expense checks were signed and issued from the Louisville office. These facts do not seem relevant to the Union Underwear analysis.
The Union Underwear analysis centered around where the plaintiff worked, lived, and where the discrimination occurred, not on the plaintiff's minimum contacts with Kentucky, due process, or subject-matter jurisdiction. Id. at 190. The court was very cognizant of the fact that the extraterritorial application of the KCRA would hinder, rather than help, the elimination of discrimination on a national basis. Id. at 192. The court said that although Congress encouraged states to enact their own versions of anti-discrimination acts, such legislation could only be viewed as providing protection from discrimination in addition to the federal statutory protections. Id. (emphasis added). Rather than imposing a Kentucky policy choice on the employment practices of another state, the court exercised prudence, caution, and respect for its sister states and refrained from extraterritorial application of the KCRA. Id. at 193.
The court in Union Underwear discussed that subject matter jurisdiction refers to the court's power to hear this kind of case rather than the court's power to hear a particular case. 50 S.W.3d at 189 (citing Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky. 1970)). The court found that the trial court was clearly empowered to hear this kind of employment discrimination case brought under the KCRA and therefore had jurisdiction. Id. at 190. The court instead found that the KCRA did not apply to the plaintiff because it would be an extraterritorial application of the Act, not because of lack of jurisdiction, and therefore his claim should have been summarily dismissed. Id.
Plaintiff, just as the plaintiff in Union Underwear, asserts that if she cannot file her discrimination claims in this Court, there are no other forums for her to bring her grievances. Id. at 192. This is simply not the case. Florida, the state where the alleged discriminatory and tortuous actions occurred, has a stake in preventing sexually discriminatory conduct by an employer to an employee located in its state. Florida has a statutory equivalent to the KCRA, the Florida Civil Rights Act, and Plaintiff could bring her sexual discrimination claims under it if MedaSTAT has the minimum contacts with Florida.
It is important to note that Plaintiff failed to assert any federal claims in her complaint — many of which are exactly the same causes of action as under the KCRA. Plaintiff could have amended her complaint to include the federal claims in her complaint. Whether this was a litigation tactic or a simple oversight by Plaintiff's council is unknown. However, what is relevant here is that none of these things were done. Just as in Union Underwear, Plaintiff has or had forums to seek relief other than in Kentucky courts asserting Kentucky state law. Therefore, this holding does not let MedaSTAT "off the hook" and give it "free reign to discriminate "against its out of state workers. Id. at 192.
III.
Defendants McKim and Elmes also move for summary judgment on Plaintiff's outrage claims against them in their individual capacities. The elements of the tort of outrage, or intentional infliction of emotional distress ("IIED") are: (1) the wrongdoer's conduct must be intentional or reckless; (2) conduct must be outrageous and intolerable in that it offends against generally acceptable standards of decency and morality; (3) there must be a causal connection between wrongdoer's conduct and emotional distress; and (4) emotional distress must be severe. See Gilbert v. Barkes, 987 S.W.2d 772, 777 (Ky. 1999); see also Brewer v. Hillard, 15 S.W.3d 1, 6 (Ky.App. 1999). Defendants McKim and Elmes assert that their alleged behavior, even taken in light most favorable to Plaintiff, does not rise to the egregious level that is necessary for an IIED claim.
The Kentucky Supreme Court first recognized the tort of outrage in Craft v. Rice, 671 S.W.2d 247 (Ky. 1984). The court adopted the traditional form of the tort found in the Restatement (Second) of Torts § 46 (1965): "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Id. at 251. Comment (d) to the Restatement outlines the type of conduct which is contemplated under the rule:
It has not been enough that the defendant has acted with an intent which is tortuous . . ., or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice". . . . Liability has been found where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities.
Kentucky courts have expressly adopted a "restrictive" view of the tort of outrage. Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1996); Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990); Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 805-06 (6th Cir. 1994). The conduct must be extreme and outrageous to the average citizen; the plaintiff's mere "belief" that the conduct is outrageous is insufficient. Bevins v. Dollar General Corp., 952 F. Supp. 504, 510 (E.D. Ky. 1997) (citing Seitz, 796 S.W.2d at 4). The evaluation of the criteria should be "stringent," and the action must be "utterly intolerable in a civilized community," a type of "harassment intended to cause extreme emotional distress." Stewart v. Pantry, Inc., 715 F.Supp. 1361 (W.D.Ky. 1988). In Smith v. Franklin County, 227 F.Supp.2d 667, 684-685 (E.D.Ky 2002), the court noted that Kentucky cases have focused on the duration of the treatment and the relationship of the parties in determining what constitutes outrageous conduct.
An action for outrage will not lie for "petty insults, unkind words and minor indignities"; the action only lies for conduct which is truly "outrageous and intolerable." Willgruber, 920 S.W.2d at 65. Additionally, a special relationship between the parties may make otherwise tenable conduct outrageous. Osborne v. Payne, 31 S.W.3d 911 (Ky. 2000) (holding that plaintiff had special relationship with priest as marriage counselor and that whether special relationship was violated in outrageous fashion where priest had affair with plaintiff's former wife precluded summary judgment for priest).
See Craft, 671 S.W.2d at 247 (maintaining surveillance of plaintiff, telling her on the CB radio that her husband would be put in jail, and driving so as to force her into an opposing lane of traffic rose to the level of conduct necessary for claim of outrageous and intolerable conduct against a police officer); Seitz, 796 S.W.2d at 1 (curt and insensitive comments for patient to "shut up" and that the hospital would dispose of her dead baby were not extreme, outrageous, or intentionally/recklessly the cause of severe emotional distress even where nurses had ignored the plaintiff's cries for help through her distress and plaintiff had delivered the baby into a bedpan, dead on arrival); Wilson v. Lowe's Home Center, 75 S.W.3d 229 (Ky.App. 2001) (holding that reasonable minds could differ as to whether racial remarks made on a daily basis by coworkers and supervisors for period of seven years constituted outrageous conduct and that determination was subject to determination by jury); Burgess v. Taylor, 44 S.W.3d 806 (Ky.App. 2001) (lower court properly submitted claim of outrage to jury where defendants had sold plaintiff's beloved horses to slaughterhouse and evidence showed that defendants were aware of her attachment to the animals and that plaintiff had suffered severe emotional distress); Brewer, 15 S.W.3d at 1 (constant lewd name calling and multiple unsolicited and unwanted requests for homosexual sex could rise to the level of outrageous conduct and was appropriate for determination by jury).
It is not clear whether Plaintiff asserts her outrage/IIED claims against MedaSTAT or McKim and Elmes in their individual capacities. If Plaintiff is in fact asserting an IIED claim against the employer MedaSTAT, such a claim is preempted by the KCRA. Kroger Co. v. Buckley, 113 S.W.3d 644 (Ky.App. 2003), and Wilson, 75 S.W.3d at 229, both hold that when a plaintiff prosecutes a statutory discrimination claim under the KCRA and a common law claim of IIED/outrageous conduct, the former preempts the latter. If, however, her claims are against Elmes and McKim, even when presented in the most favorable light, these do not rise to the level anticipated by the Restatement and Kentucky's courts.
In Plaintiff's response she states that it is clear that "MedaSTAT's conduct — of asking Ferrer for a written complaint of sexual harassment allegations then plainly retaliating against Ferrer on the very same day by suspending and then terminating her employment — is severe. It is more than `petty insults, unkind works and minor indignities' that do not state a claim for outrage . . ." Plaintiff does not allege in her response any actions by McKim or Elmes to support her individual outrage claims against them.
The reasoning for this preemption is that the KCRA extends protection to personal dignity and freedom from humiliation of individuals, and this is interpreted as allowing a claim of damages for humiliation and personal indignity. See McNeal v. Armour and Co., 660 S.W.2d 857, 958 (Ky.App. 1983). Likewise, an outrage claim seeks damages for extreme emotional distress. Buckley, 113 S.W.3d at 646. Because of the preemption articulated in Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985), all outrage claims are subsumed by the KCRA and the remedies available in that statute.
This Court discussed Grzyb preemption in the context of the KCRA and an outrage claim in Wiseman v. Whayne Supply Co., 2004 WL 62498, *7 (W.D.Ky. 2004). The Court held that when a statute or legislative enactment declares an act unlawful and specifies the civil remedy available to the aggrieved party, the aggrieved party is bound by the statutory remedy. See Grzyb, 700 S.W.2d at 401; see also Harvey v. I.T.W., Inc., 672 F.Supp 973, 976 (W.D.Ky. 1987). If the statute also provides structure for pursuing the claim, the aggrieved party is limited to that structure. Harvey, 672 F.Supp. at 976. In other words, the same statute that could provide the underpinnings of an outrage claim cannot do so if it also structures the remedy. Wiseman, 2004 WL 62498 at *7. This Grzyb preemption has identical application to the current set of facts, where Plaintiff has asserted claims under the KCRA, which structures the remedy for Plaintiff, and an outrage claim.
Plaintiff says that Elmes and McKim subjected her to sexually suggestive comments throughout the course of her eighty-seven day employment, including comments about the clothes Plaintiff wore and how her clothes showed her breasts and legs. Plaintiff asserts that Elmes made sexual comments, such as "I knew I liked you," "I knew I wanted you right away," and "You are a very attractive woman . . . any man in your life? Do you want one?" McKim made sexual comments about meeting Plaintiff's girlfriend and "having a good time," as well as telling Plaintiff not to get married or involved because "I've got plans for you." As stated before, McKim and Elmes talked constantly about sex, paying for sex, women's behavior, and women's anatomy. McKim told Plaintiff that his type was petite blondes with glasses, which Plaintiff asserts was directed at her. Defendants also suggested that Plaintiff have plastic surgery such as breast augmentation. Elmes talked about a co-worker's wife, said she was fat, and had a fat "ass."
These comments certainly could be labeled offensive, inappropriate, crude, and not to be tolerated in the workplace. However, such conduct would not seem to rise to the level of "atrocious," "extreme," "outrageous," or "beyond all possible bounds of decency," that an outrage claim requires. See Wathen v. General Electric Comp., 115 F.3d 400, 402 (6th Cir. 1997). The Court finds that the facts here are not nearly so egregious as those in Brewer or Akers v. Alvey, 338 F.3d 491 (6th Cir. 2003). Plaintiff's allegations are more like those of Wathen than Brewer because the comments by Elmes and McKim were sexual jokes, comments, and innuendos, but they were not the blatant physically touching or requests for sex that occurred in Brewer.
In Wathen the Sixth Circuit held that sexual innuendo and comments by supervisors were not atrocious and utterly intolerable to be considered IIED under Kentucky law. 115 F.3d at 402.
The Sixth Circuit recognized its holding in Wathen, but the court felt that the explicit sexual name calling, request for sex and physical touching went far past "sexual jokes, comments and innuendos." Brewer, 15 S.W.3d at 7.
The Court concludes that the allegations here constitute "petty insults, unkind words and minor indignities" one would not anticipate encountering in a work environment, but they do not rise to the level of outrageous conduct. Also, neither the duration nor the frequency of the alleged behavior extend to that point that the case law would recognize as creating otherwise relatively isolated incidents actionable. See Smith, 227 F.Supp.2d at 685.
The Court will enter an Order consistent with this Memorandum.
ORDER
Defendants have moved for summary judgment on all of Plaintiff's claims. For the reasons set out in its Memorandum Opinion and being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants' motion for summary judgment is SUSTAINED and Plaintiff's complaint is DISMISSED WITH PREJUDICE.
This is a final order.