Opinion
Civil Action No. 3:99CV-231-S
October 13, 1999
MEMORANDUM OPINION
This matter is before the Court on motion of the defendants, Metlife General Insurance Agency, Inc. ("Metlife") and Larry Bratcher ("Bratcher"), to dismiss Bratcher from Counts I and II of the Complaint and to sever Count III. Also before the Court is the plaintiff's motion to remand this action to Hardin County Circuit Court based on an alleged lack of diversity jurisdiction. The plaintiff also moved to tax costs to the defendants. For the reasons set forth below, Counts I and II will be dismissed as to Bratcher with prejudice. The defendants' motion to sever Count III will be granted. The plaintiff's motions to remand will be denied as to Counts I and II and granted as to Count III. The plaintiff's motion to tax costs will be denied.
The plaintiff, a Kentucky citizen, originally filed this action in the Hardin County, Kentucky Circuit Court. It is undisputed that: (1) Metlife is incorporated under the laws of the State of New York, where it also maintains its principal place of business; and (2) Bratcher is a citizen of the Commonwealth of Kentucky. The defendants removed this action to this Court based on diversity of citizenship jurisdiction under 28 U.S.C. § 1332, 1441. They argue that the citizenship of Bratcher must be disregarded by virtue of the "fraudulent joinder" doctrine because none of the plaintiff's claims are viable as to Bratcher.
In his Complaint, the plaintiff alleges he was employed at the Elizabethtown Metlife office and that Bratcher was employed there with him. In Count I, the plaintiff, who is of Native American descent, alleges violation of the Kentucky Civil Rights Act by both defendants based on national origin discrimination in the form of ethnic slurs by Bratcher. In Count II, the plaintiff alleges he was wrongfully terminated by both defendants for his refusal to steal and turn over customer lists from his previous employer, another insurance company. The plaintiff makes claims only against Bratcher in Count III. The plaintiff alleges breach of an oral contract to make him a shareholder in Bratcher's corporation, Outdoor Sportsman Unlimited, Inc. ("Outdoor Sportsman"). This corporation is not in the insurance business and is wholly unrelated to Metlife. The parties dispute Bratcher's exact role in the Elizabethtown Metlife office. The plaintiff stated in his Complaint that Bratcher was his immediate supervisor. Bratcher and Roger Davis, Metlife's Managing Director for the Central and Western Regions of Kentucky, have both testified that Bratcher was not the plaintiff's supervisor. In fact, they state that the plaintiff and Bratcher were both account executives, and that Davis supervised both. They additionally state that Bratcher had no authority whatsoever over the plaintiff. The plaintiff has acknowledged that Davis was his superior, but argues that Bratcher w as a "de facto supervisor."
I. Dismissal of Bratcher as to Count I
Metlife and Bratcher argue that under existing case law an individual employee and/or supervisor may not be held personally liable under the Kentucky Civil Rights Act, KRS Chapter 344. We agree. In Wathen v. General Elec. Co., 115 F.3d 400 (6th Cir. 1997), the Sixth Circuit examined this exact issue and held that "an individual employee/supervisor, who does not otherwise qualify as an `employer,' may not be held personally liable under Title VII. Because KRS Chapter 344 mirrors Title VII, we find our holding equally applicable to KRS Chapter 344." Id. at 405. Based on Wathen, only Metlife, the plaintiff's employer, may be held liable under the Kentucky Civil Rights Act. Accordingly, Bratcher must dismissed from Count I of the Complaint.
II. Dismissal of Bratcher as to Count II
The plaintiff alleges that Bratcher and Metlife wrongfully terminated him for refusing to steal customer lists from his previous employer. As an at will employee, the plaintiff must fall under the public policy exceptions to state a claim for wrongful termination. In Grzyb v. Evans, 700 S.W.2d 399 (Ky. 1985), the Kentucky Supreme Court set out the two public policy exceptions to the terminable at will doctrine: (1) where the alleged reason for the discharge was the refusal to violate the law; or (2) where the reason for the discharge was the employee's exercise of a right conferred by well-established legislative enactment. Id. at 402 (quoting Suchodolski v. Michigan Consol. Gas Co., 316 N.W.2d 710, 711-12 (Mich. 1982)).
The plaintiff argues that Bratcher is a proper party to this wrongful termination claim because he was the plaintiff's "de facto supervisor" and participated in the termination decision. This Court will only consider the plaintiff's allegation that Bratcher participated in the termination decision because the other allegation, that Bratcher was the plaintiff's "de facto supervisor," is not alone enough to impose liability. Because this Court has considered evidence beyond the pleadings, the defendants' motion to dismiss Count II will be treated as a motion for summary judgment.
Davis was conceded to be both the plaintiff's and Bratcher's supervisor. Bratcher denies participation in the termination decision. Davis filed an affidavit stating that he alone made the decision to terminate and that he based this decision solely on the plaintiff's poor job performance. The plaintiff has failed to meet or refute these allegations or to show that they are pretextual. In fact, the plaintiff has shown nothing other than his own allegations. Because the plaintiff has failed to show a genuine issue of material fact as to whether Bratcher participated in the termination decision, this Court will render judgment as a matter of law that the plaintiff has no viable claim as to Bratcher in Count II.
III. The Defendants' Motion to Sever Count III
The plaintiff claims that Bratcher breached an oral contract to include the plaintiff as a shareholder in his corporation, Outdoor Sportsman. The defendants argue that, because this agreement was totally unrelated to the plaintiff's employment or termination from employment with Metlife, this claim does not arise out of the same transaction or occurrence as the plaintiff's other claims and should be severed pursuant to Fed.R.Civ.P 20(a) and 21. The plaintiff argues that this claim was properly joined because the customer list that he was supposed to steal for Bratcher was to be used for Metlife and for soliciting memberships in Outdoor Sportsman. The plaintiff asserts that his refusal to steal the list caused Bratcher to use the alleged racial slurs. In addition, the plaintiff alleges that some Outdoor Sportsman activities were conducted at the Metlife workplace.
Claims are properly joined if they: (1) arise out of the same transaction or occurrence; and (2) present a common question of law or fact. Fed.R.Civ.P. 20(a).; See Michaels Bldg. Co. v. Ameritrust Co., 848 F.2d 674, 682 (6th Cir. 1988). If claims are misjoined, dismissal is appropriate. Fed.R.Civ.P. 21; Michigan Sav. Loan League v. Francis, 683 F.2d 957, 962 (6th Cir. 1982). The plaintiff argues that joinder of the breach of contract claim is appropriate based on Bratcher's alleged involvement in the discrimination and wrongful termination claims. Metlife has no connection to the alleged breach of contract claim and Bratcher is no longer a party to the plaintiff's other claims. The plaintiff has not established that Bratcher's alleged breach of contract arises out of the same transaction or occurrence as Metlife's termination of the plaintiff's employment or Metlife's alleged discrimination. Therefore, the defendants' motion to sever Count III will be granted.
This Court must now consider the citizenship of the remaining parties in each count to determine if any counts should be remanded . Because the citizenship of Bratcher must be disregarded in Counts I and II, those were properly removed to this Court based on diversity of citizenship under 28 U.S.C. § 1332, 1441. Because there is no diversity of citizenship or federal question presented in Count III, it must be remanded to Hardin County, Kentucky Circuit Court.
For the reasons set forth above, this Court will grant the defendants' motion to dismiss Larry Bratcher from Counts I and II and to sever Count III. The plaintiff's motion to remand as to Counts I and II will be denied and granted as to Count III. The plaintiff's motion to tax costs will be denied.
ORDER
Motions having been made by the defendants, Metlife General Insurance Agency, Inc. and Larry Bratcher, to dismiss defendant Bratcher from Counts I and II of the Complaint and to sever Count III of the Complaint, and for the reasons set forth in the memorandum opinion, and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that:
1. The motion to dismiss defendant Larry Bratcher from Count I is GRANTED. The plaintiff's motion to remand Count I is DENIED.
2. The motion to dismiss defendant Larry Bratcher from Count II is GRANTED. The plaintiff's motion to remand Count II is DENIED.
3. The motion to sever Count III is GRANTED. The plaintiff's motion to remand Count III is GRANTED.
4. The motion to tax costs is DENIED.
IT IS SO ORDERED.