Opinion
CIV. 3:00-CV-5-H
May 2000
MEMORANDUM OPINION
Plaintiff Austin Lee originally filed this racial discrimination lawsuit in Jefferson County Circuit Court. The gist of the allegations is as follows: Lee worked for Defendant Lawson Mardon USA, Inc. ("Lawson"), where his supervisors included Defendants Robert Yates and Harold Sebring. Yates and Sebring repeatedly taunted Plaintiff with racial comments. Plaintiff notified Lawson and filed a grievance with the Equal Employment Opportunity Commission on May 28, 1999. Less than one month later, Lawson fired Plaintiff, citing reasons unrelated to the racial comments or the EEOC inquiry.
Plaintiff alleges three counts against Lawson under the Kentucky Civil Rights Act, Ky. Rev. Stat. Ann. § 344.040 (Michie 1997), for hostile workplace environment, discriminatory discharge, and retaliatory discharge, respectively. He also alleges a fourth count of intentional infliction of emotional distress or outrage against Yates and Sebring only. Defendants timely removed the case to this Court, and Plaintiff now moves to remand the action to its original state forum. As is often true in these cases, the parties first dispute whether the individual Defendants, whose citizenship destroys diversity, are fraudulently joined. To resolve this question, the Court must consider the application of some rather unusual concepts of Kentucky law.
Plaintiff, Yates, and Sebring are Kentucky residents, but Lawson is a foreign corporation with its business centered in another state. Ordinarily, the absence of complete diversity among the parties would preclude federal subject matter jurisdiction over such an action on removal. See 28 U.S.C. § 1332, 1441; Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). Confronted with this difficulty, the Defendants contend that Yates and Sebring were fraudulently joined to the lawsuit, so their presence cannot destroy complete diversity, and the removal is proper. See Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 948-49 (6th Cir. 1994). To establish fraudulent joinder, Defendants must show that no colorable basis exists for Plaintiff's recovery on the tort of intentional infliction of emotional distress. The Court must resolve all legal and factual questions in Plaintiff's favor. See Coyne v. American Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999); Alexander, 13 F.3d at 948-49.
The dispute in this case centers upon the validity of Plaintiff's outrage claim against Yates and Sebring. Defendants cite a variety of reasons why the claim should be invalid in these circumstances. First, citing an unpublished federal opinion, Bustle v. Tokico (USA), Inc., No. 96-64 (E.D.Ky. Apr. 11, 1996), at 6-7, they say that outrage is only a "gap-filler" tort, so it cannot lie where there is already a cause of action against an employer under the Kentucky Civil Rights Act. The relevant portion of the Bustle opinion is premised wholly on Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295 (Ky.Ct.App. 1993), which held that
Taking into account the history of the tort of outrage, and its reason for being as a "gap filler" providing redress for extreme emotional distress in those instances in which the traditional common law actions did not, we believe that § 47 recognizes that where an actor's conduct amounts to the commission of one of the traditional torts such as assault, battery, or negligence for which recovery for emotional distress is allowed, and the conduct was not intended only to cause extreme emotional distress in the victim, the tort of outrage will not lie. . . . The tort of outrage was intended to supplement the existing forms of recovery, not swallow them up.
Id. at 298-99. Defendants' argument that Rigazio prevents Plaintiff's outrage claim seems flawed on many grounds. First, restricting the tort's application logically applies only when some other valid cause of action lies against the same defendant. See id. at 298 (the victim stated both assault and battery and outrage claims against his sexual abuser). Here, the outrage claim supplements a recovery not asserted or covered by other claims. There is no other colorable action against Yates and Sebring — only one against Lawson. The outrage claim here does not swallow up or subsume another existing recovery. Therefore, Rigazio seems not to be implicated either logically or on its facts. Second, the first three counts are statutory claims, not common law claims, so any overlap with other common law claims as described in Rigazio does not arise. Finally, and most important, it is certainly possible that, as alleged here, Yates' and Sebring's actions were "intended only to cause extreme emotional distress in the victim." See Complaint at ¶ 40. Based upon the pleadings alone, one cannot dismiss that possibility. In these circumstances, the Rigazio defense would not apply. See Rigazio, 853 S.W.2d at 298; cf. Brewer v. Hillard, 1999 WL 606466, at *5 (Ky.Ct.App. Aug. 13., 1999) (nonfinal decision). The tort of outrage is designated as a "gap-filler" in Kentucky. Because it seems to perform precisely that function in this lawsuit, its use is appropriate.
Next, Defendants contend that Plaintiff's outrage claim is preempted by the Kentucky Civil Rights Act under Gryzb v. Evans, 700 S.W.2d 399 (Ky. 1985). In Gryzb, the plaintiff stated a wrongful discharge claim in which the public policy alleged to be violated was premised on sex discrimination under the Kentucky Civil Rights Act. The Kentucky Supreme Court balked, holding that
the claim of sex discrimination would not qualify as providing the necessary underpinning for a wrongful discharge suit because the same statute that enunciates the public policy prohibiting employment discrimination because of `sex' also provides the structure for pursuing a claim for discriminatory acts in contravention of its terms.Id. at 401. The Court cannot discern why this holding would apply outside the wrongful discharge context. Gryzb relies on the narrow precept that a wrongful discharge claim needs an articulated ( i.e., constitutional or statutory) public policy to bypass the traditional rules of at-will employment, so statutes that already have their own enforcement mechanisms (such as the Kentucky Civil Rights Act) cannot be double-enforced through wrongful discharge law. But intentional infliction of emotional distress does not rely on the Civil Rights Act or any other written public policy for its substance — its only prerequisite is intentional, outrageous behavior. Therefore, the rule established in Gryzb does not prevent Plaintiff from stating this tort against Yates and Sebring in these circumstances.
Finally, Defendants argue that Plaintiff's outrage claim may be preempted by the Kentucky Workers Compensation Act. As Defendants readily admit, the Kentucky Supreme Court has specifically declined to rule on this question. See Kroger Co. v. Willgruber, 920 S.W.2d 61, 64 (Ky. 1996). Whether Kentucky's workers compensation scheme may ultimately preempt outrage actions is, at best, an unsettled legal question, so the Court cannot hold that Plaintiff's tort claim is untenable. See Coyne, 183 F.3d at 493.
But even if Coyne did not prevent aggressive legal assumptions, this second preemption argument does not seem defensible. Defendants do not, of course, claim that remedies under the Kentucky Civil Rights Act are preempted by the Workers Compensation Act. This is because, in the absence of physical injury or contact, the dignitary and emotional injuries alleged in this lawsuit are probably not of the type covered by workers compensation. Plaintiff's outrage claim alleged only "severe mental and emotional distress" and damages flowing out of that distress; physical injury is not part of the claims. Even though the only stated exception to employee immunity is "unprovoked physical aggression," Ky. Rev. Stat. Ann. § 342.690(1) (Michie 1997), the definition of a workplace "injury" covered under the statute "shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury." Ky. Rev. Stat. Ann. § 342.0011(1) (Michie 1997 1998 Supp.). Therefore, the injuries alleged in this lawsuit are not even covered by workers compensation law. Kentucky courts have yet to pre-empt a tort claim in these circumstances. The Court finds no basis to predict that given the opportunity, they would do so.
Kentucky law maintains different causes of action to redress a hostile work environment caused by an employer, and racial abuse caused by individuals. The latter claim is for the harm inflicted by Yates and Sebring through their alleged racial taunts, while the former claim is for Lawson's failure to correct the situation and fostering of an environment in which such abuse could flourish. Though they begin from the same abusive behavior, these are different claims against distinct defendants, and under Kentucky law Plaintiff may maintain them in the same lawsuit.
Defendants also argue that Jefferson County Circuit Court is an improper venue for the lawsuit, and that the case should ultimately be heard in Shelby County Circuit Court. This may be so, but it hardly constitutes an argument for fraudulent joinder. If Defendants have valid venue or forum non conveniens arguments, there will be ample opportunity to raise them on remand. Kentucky's courts have sufficient methods for handling venue problems when necessary, and this Court cannot say whether they would dismiss the whole case, transfer the whole case to the appropriate county, dismiss only the non-diverse defendants, or do nothing. Such a question is for the Kentucky state courts.
The Court will enter an Order consistent with this Memorandum Opinion.
ORDER
Plaintiff moved to remand this case to Jefferson County Circuit Court. Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Plaintiff's motion is SUSTAINED, and this case is remanded to Jefferson County Circuit Court.