Stone v. Schwartz ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VICKIE STONE,
Plaintiff-Appellant,
v.
No. 96-2215
STEPHEN SCHWARTZ; COMMONWEALTH
CLINICAL RESEARCH SERVICES,
INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-96-7)
Submitted: August 29, 1997
Decided: September 12, 1997
Before MURNAGHAN, WILLIAMS, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
David R. Simonsen, Jr., Richmond, Virginia, for Appellant. Margue-
rite R. Ruby, C. Randolph Sullivan, HUNTON & WILLIAMS, Rich-
mond, Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Vickie Stone filed this action against Stephen Schwartz and Com-
monwealth Clinical Research Services, Inc., alleging that her employ-
ment as a Clinical Research Associate was wrongfully terminated
because of her sex and pregnancy and that Defendants retaliated
against her by refusing to recall or rehire her. Finding that the Ken-
tucky Civil Rights Act ("Act") provides a remedy for discrimination
and preempts the area, the district court granted Defendants' motion
for summary judgment on the wrongful discharge claim. The district
court also determined that Stone failed to state a claim for retaliatory
refusal to recall or rehire. We affirm.
I.
Kentucky recognizes the employment-at-will doctrine, allowing an
employer to discharge an employee for any reason. See Firestone
Textile Co. Div. v. Meadows, 666 S.W.2d 730, 731 (Ky. 1983). A nar-
row exception to this doctrine exists, and an employee may assert a
wrongful discharge action if the discharge is contrary to a fundamen-
tal and well-defined public policy evidenced by a constitutional or
statutory provision. The decision of whether the public policy asserted
meets these criteria is a question of law for the courts to decide, not
a question of fact. Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985)
(citing Brockmeyer v. Dun & Bradstreet, 335 N.W.2d 834 (Wis.
1983)).
Discrimination on the basis of pregnancy or sex is contrary to the
public policy of Kentucky, as stated in the Kentucky Civil Rights Act.
See Ky. Rev. Stat. Ann. § 344.040 (Michie 1997). However, as noted
by the Kentucky Supreme Court in Grzyb,"the claim of sex discrimi-
nation would not qualify as providing the necessary underpinning for
a wrongful discharge suit because the same statute that enunciates the
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public policy prohibiting employment discrimination because of `sex'
also provides the structure for pursuing a claim for discriminatory acts
in contravention of its terms." Grzyb, 700 S.W.2d at 401. Where the
same statute both creates the public policy and structures the remedy,
it preempts the field of its application. Id.
The Kentucky Civil Rights Act prohibits discrimination by
employers on the basis of sex and pregnancy and provides that an
aggrieved person can seek administrative or judicial relief. See Ky.
Rev. Stat. Ann. §§ 344.030(6), 344.200, 344.450 (Michie 1997). The
Act then defines "employers" as persons having eight or more
employees in the state of Kentucky. Ky. Rev. Stat. Ann. § 344.030(2)
(Michie 1997). Assuming Stone was an employee of the Defendants,
she was their only employee in the state of Kentucky. Therefore, the
provisions of the Civil Rights Act do not apply to the Defendants.
Stone argued in the district court and in her brief that because she
personally could not pursue a remedy under the Kentucky Civil
Rights Act, she should be able to pursue a claim under the public pol-
icy exception. However, this argument is not supported by the lan-
guage of the statute or by the Grzyb decision. Rather, the Kentucky
Supreme Court stated that the Civil Rights Act "preempts the field of
its application." Grzyb, 700 S.W.2d at 401. Recognizing a cause of
action for wrongful discharge where the Kentucky legislature has lim-
ited the provisions to employers of eight or more within the state,
would violate the intent of the legislature to clearly define and suit-
ably control the parameters of the cause of action for wrongful termi-
nation. See Firestone Textile Co., 666 S.W.2d at 733.
Stone contends that her ability to state a claim under the public pol-
icy exception is supported by the decisions in Pari-Mutuel Clerks'
Union v. Kentucky Jockey Club, 551 S.W.2d 801 (Ky. 1977), and
Firestone Textile Co., 666 S.W.2d at 731. However, in neither of
these cases did the statute which created the policy establish a rem-
edy.
Because the Kentucky Civil Rights Act provides the remedy for the
violation of the public policy expressed therein, Stone could not state
a common law claim for violation of the Act, notwithstanding the fact
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that she, personally, could not seek the relief provided under the Act
because of the limiting definition of "employer."
II.
Stone alleged in her second amended complaint that the Defen-
dants failed or refused to recall, hire, or rehire her in retaliation for
her opposing her unlawful discharge. She alleged that the Defendants
hired or recalled other persons for the same position she held before
she was terminated; however, she did not allege that she sought to be
rehired by Defendants or that her attempt at reemployment was
rejected by Defendants.
Stone seeks to assert this claim under § 344.280 and § 344.450 of
the Kentucky Civil Rights Act, which provide in relevant part:
It shall be an unlawful practice for a person . . .
(1) To retaliate or discriminate in any manner against a per-
son because he has opposed a practice declared unlawful by
this chapter, or because he has made a charge, filed a com-
plaint, testified, assisted, or participated in any manner in
any investigation, proceeding, or hearing under this chapter.
Ky. Rev. Stat. Ann. § 344.280 (Michie 1997), and:
Any person deeming himself injured by any act in violation
of the provisions of this chapter shall have a civil cause of
action in Circuit Court to enjoin further violations, and to
recover the actual damages sustained by him . . . .
Ky. Rev. Stat. Ann. § 344.450. Together, these statutes provide a stat-
utory cause of action for retaliation against a person for opposing a
practice declared unlawful by the Kentucky Civil Rights Act. How-
ever, the Kentucky Civil Rights Act declares unlawful the discrimina-
tion in employment by an employer of eight or more within the state.
As addressed earlier, the Defendants are not "employers" under the
Act. Because Stone cannot state a violation under§ 344.280, she can-
not pursue a cause of action under § 344.450.
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Stone also asserts that Ky. Rev. Stat. Ann. § 336.700 (Michie
1995), supports her claim. That provision, dealing with the state's
labor cabinet, prohibits an employer of at least one employee from
requiring as a condition of employment that the employee or person
seeking employment waive, arbitrate, or otherwise diminish any exist-
ing or future claim, right, or benefit to which the employee or person
seeking employment would otherwise be entitled under federal or
state law. However, Stone failed to allege that she was an employee
or a person seeking employment with the Defendants, and she failed
to allege a claim, right, or benefit which the Defendants required her
to waive as a condition of reemployment. Moreover,§ 336.700 does
not create a private right of action. We find that the district court
properly determined that Stone failed to state a claim under which
relief may be granted.
In conclusion, we affirm the district court's orders granting sum-
mary judgment on the pregnancy discrimination claim and dismissing
the retaliatory refusal to recall or rehire claim. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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