Opinion
Civil Action No. 3:99 CV-160-H
May 14, 1999.
MEMORANDUM OPINION
Plaintiff, Tom Groessler, filed this lawsuit alleging violations of the Kentucky Civil Rights Act in state court. After Defendants removed to federal court on the basis of diversity, Plaintiff moved to remand. Defendants now argue that while some of them are not diverse, Plaintiff named them solely for the purposes of defeating diversity. In addition, this case presents the interesting question of whether Ky. Rev. Stat. Ann. § 344.280 permits a cause of action against individuals for retaliation. The Court concludes that one can assert such a claim against individuals. Moreover, because the Court concludes that Plaintiff's naming of nondiverse defendants was not fraudulent or merely for the purpose of defeating federal court jurisdiction, remand is appropriate.
At the times relevant to this action Plaintiff was eighteen years old and worked as an usher at the Tinseltown movie theatre in Louisville, Kentucky. He is a practicing Jehovah's Witness of German national origin. The named defendants were aware of Plaintiff's German heritage and his religion. Plaintiff alleges that various co-workers and supervisors made highly offensive, demeaning, and discriminatory statements about his heritage, religious beliefs, and his sexuality, and that when Plaintiff complained and sought to have the treatment ended, he was fired.
Plaintiff has alleged violations of the Kentucky Civil Right Act not only by his employer, but by a number of individuals. In Count I Plaintiff alleges Defendant Tinseltown discriminated against him in the form of national origin discrimination, religious discrimination and sexual harassment. In Count II, he alleges Defendants conspired to and did retaliate against him for opposing acts declared unlawful under Ky. Rev. Stat. Ann. § 344.070, et seq. In Count III, he alleges that Defendants conspired to coerce Plaintiff to engage in acts declared unlawful by Ky. Rev. Stat. Ann. § 344.070, et seq. Counts II and III seem to implicate violations of Ky. Rev. Stat. Ann. §§ 344.280(1) and (2). He also has brought a claim of intentional infliction of emotional distress, also known as outrageous conduct, against each Defendant.
A defendant may remove a case to federal court on the basis of diversity "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b). However, a plaintiff may not defeat diversity jurisdiction by fraudulently naming nondiverse defendants. Defendants say that Plaintiff has done precisely that. First, they say that the Kentucky Civil Rights Act does not support claims against individuals; therefore, only the discrimination claims against the diverse employer may stand. Second, they contend that Plaintiff has no realistic chance of succeeding on his claims of outrageous conduct. Thus, according to Defendants' arguments, no realistic state claim remains against the named individual, non-diverse defendants.
Had Plaintiff invoked only the section of the Kentucky Civil Rights Act addressing employment discrimination and employer liability, the Court would agree with the Defendants. As this Court explained in Woodrum v. Lane Bryant The Limited, Inc., 964 F. Supp. 243 (W.D. Ky. 1997), the policy behind Title VII and the Kentucky Civil Rights Act is to hold employers responsible for discrimination in the work place. See Wathen v. General Electric Co., 115 F.3d 400, 403-406 (6th Cir. 1997). Plaintiff, however, has invoked the first two subsections of Ky. Rev. Stat. Ann. § 344.280. Count 2 of the Complaint includes allegations of a conspiracy to retaliate, which is a violation of Ky. Rev. Stat. Ann. § 344.280(1); Count 3 includes allegations of a conspiracy to compel Plaintiff to make improper sexual contact with females on the job in violation of Ky. Rev. Stat. Ann. § 344.280(2). These subsections have distinctly different language than those subsections which track Title VII. Their very terms name persons as potentially liable, not just employers.
Section 344.280 of the Kentucky Revised Statutes states:
It shall be an unlawful practice for a person, or for two (2) or more persons to conspire:
(1) To retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this chapter; or
(2) To aid, abet, incite, compel, or coerce a person to engage in any of the acts or practices declared unlawful by this chapter; . . .
Both sides in this controversy cite to the Kentucky Supreme Court decision Palmer v. Int'l. Ass'n of Machinists and Aerospace Workers, 882 S.W.2d 117 (Ky. 1994) to support their arguments. It is true that the court in Palmer found that individuals could not be held liable as employers under Ky. Rev. Stat. Ann. § 344.030. The court, however, specifically reversed the lower court holding that the plaintiff could not seek civil remedy against two individuals under Ky. Rev. Stat. Ann. § 344.280. Palmer, 882 S.W.2d at 120. It is useful to consider that court's analysis here. The lower court in Palmer had concluded that because § 344.280 created criminal liability, Palmer had no civil remedy available. The high court disagreed. Although violation of § 344.280 is a misdemeanor under § 344.990, the Kentucky Civil Rights Act provides civil recovery for "any act in violation of the provisions of this chapter." Ky. Rev. Stat. Ann. § 344.450. The Palmer court also noted the Kentucky Court of Appeals upheld a civil damages award based on a violation of § 344.280 in Mountain Clay, Inc. v. Commonwealth Comm'n on Human Rights, 830 S.W.2d 395 (Ky.Ct.App. 1992). The Palmer court then concluded, "[t]he decision that Palmer could not maintain an action against the two individuals under KRS 344.280 is reversed." Even though this language seems to suggest an analysis favorable to Plaintiff, the Court is not convinced that the Kentucky Supreme Court was addressing our precise issue. Even a review of the briefs to the Supreme Court does not clarify exactly why the court stated that individuals could bring an action under § 344.280. It may have merely concluded that the plaintiffs could bring a civil action and, therefore, that the action could continue against those defendants.
The federal decisions cited by Defendants and reviewed by this Court have been sweeping in their generalization that the Kentucky Civil Rights Act does not support liability against individuals. However, the language of Ky. Rev. Stat. Ann. § 344.280 is distinctly different than that applicable to § 344.030. Title VII does not contain a similar provision. This Court concludes that such different language must mean something. Here, it must mean that for the limited purposes set forth in § 344.280, Kentucky does permit actions against individual defendants.
See Wathen, 115 F.3d at 403-406 ("individual employee/supervisor, who does not otherwise qualify as an `employer,' may not be held personally liable under Title VII [or] . . . KRS Chapter 344"); Walker v. MDM Services Corp. 997 F. Supp. 822, 823-24 (W.D.Ky. 1998)( ("individual employee/supervisor, who does not otherwise qualify as an `employer,' may not be held personally liable under Title VII or under the Kentucky Civil Rights Act, K.R.S. 344.010.); Effinger v. Philip Morris, Inc. 984 F. Supp. 1043, 1045-46 (W.D.Ky. 1997) (individual defendant does not qualify as an "employer" pursuant to definition in K.R.S. § 344.040); Winston v. Hardee's Food Systems, Inc., 903 F. Supp. 1151, 1155 (W.D.Ky. 1995)( agent provision within definition of employer in Title VII not intended to attach individual liability).
Even if the Court agreed with Defendants on the Kentucky Civil Rights claim, Plaintiff has stated a proper claim for intentional infliction of emotional distress or outrageous conduct against the individual named defendants. A claim for outrage requires a plaintiff to show: "(1) the wrongdoer's conduct [was] intentional or reckless; (2) the conduct [was] outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; (3) there must be a causal connection between the wrongdoer's conduct and the emotional distress; and (4) the emotional distress must be severe. Effinger v. Philip Morris, Inc., 984 F. Supp. 1043, 1047 (citing Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 2-3 (Ky. 1990)). Plaintiff, has sufficiently stated the elements of the tort and pled facts that might support the claim, particularly if accompanied later by more detailed proof in the record.
The Court believes the inquiry does not stop there. Defendants do state the proper standard — that is, that the removing party must show that there is no reasonable basis for predicting that the state law might impose liability on the facts involved. See Ludwig v. Learjet, Inc., 830 F. Supp. 995, 998 (E.D. Mich. 1993). It is not the role of the Court, however, to determine as a matter of law at this point in the litigation if Plaintiff can prevail. In Ludwig, the nondiverse defendants had a complete immunity defense to the state law claims lodged against them. That is not the case here. In Effinger, the only conduct alleged to be outrageous was a supervisor's stating to the plaintiff that he would like to "get his hands on" her adult daughter while he made inappropriate gestures. 984 F. Supp. at 1047. The Plaintiff here certainly has not pled the type of egregious behavior found in Kroger v. Willgruber, 920 S.W.2d 61 (Ky. 1996); but the Plaintiff has already pled behavior qualitatively more offensive than that in Effinger, and of an entirely different nature than the Kentucky cases cited by the Defendants.
Defendant argued that the "question of whether or not the conduct is so extreme or outrageous as to permit recovery is to be determined by the Court, as held by the Kentucky Court of Appeals in Whittington v. Whittington, 766 S.W.2d 73 (Ky.App. 1989)." That case, and other cases in Kentucky discussing the role of the court, were in the contexts of motions to dismiss and motions for summary judgment. This case, procedurally, is nowhere near dispositive motion stage and Court does not find it necessary to apply summary judgment standards to the question now before it.
The Court recognizes that Plaintiff faces an exceedingly difficult burden in proving his outrageous conduct claim. The harassment alleged in this case pertained to religious beliefs, Nazism, and sexual preference. Accepted standards of decency and morality evolve and none of the Kentucky cases address these types of allegations. It would be unfairly presumptuous for this Court to conclude these facts and those developed through discovery support no reasonable basis for plaintiff's belief that the law might impose liability on Defendants. The Court finds that based on the pleadings, Plaintiff has some basis for asserting his claims against the named individual defendants and a reasonable basis for his belief that the state might impose liability upon them.
The remaining issue is Plaintiff's request for costs and legal fees associated with seeking remand. See 28 U.S.C. § 1447(c). The Court has broad discretion to determine the propriety of awarding costs to Plaintiff. See Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238, 239-40 (6th Cir. 1993). The Court need not find bad faith or vexatious motive behind the attempted removal. Because the issue of fraudulent joinder was legitimately of concern in this case, though ultimately found unwarranted, the Court declines to award costs to Plaintiff.
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
The Court having considered Plaintiff's motion to remand and being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiff's motion to remand is SUSTAINED and this case is remanded to Jefferson County Circuit Court.
IT IS FURTHER ORDERED that Plaintiff's motion for an award of costs and fees is DENIED.