Michael Lee Barnett v. Central Kentucky Hauling, LLC ( 2021 )

RENDERED: FEBRUARY 18, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0064-DG
MICHAEL LEE BARNETT APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2017-CA-1746
FAYETTE CIRCUIT COURT NO. 17-CI-02945
CENTRAL KENTUCKY HAULING, LLC. APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
The Kentucky Civil Rights Act1 bars an employer from discharging an
employee because of disability. We accepted discretionary review of this case
to consider whether the KCRA similarly bars an employer from discharging an
employee because of the disability of an individual with whom the employee
associates. We conclude it does not. We affirm the decision of the Court of
Appeals to affirm the trial court’s order dismissing the KCRA complaint.
I. FACTS AND PROCEDURAL HISTORY
Central Kentucky Hauling hired Michael Lee Barnett as a driver in 2011.
Known to CKH at his hiring was the fact that Barnett’s wife suffered from a
debilitating respiratory disease, cystic fibrosis. In late 2013, the wife’s
1 Kentucky Revised Statutes (KRS) Chapter 344, the Kentucky Civil Rights Act
(KCRA).
declining health required a double lung transplant, which she received in
January 2014. Toward the end of that year, her health further declined.
Barnett took time off work to care for his wife. In early 2014, CKH
supervisors confronted Barnett concerning a rumor that he was disparaging
CKH to coworkers, a rumor Barnett denied. According to Barnett, during that
confrontation a supervisor also mentioned his time off caring for his wife. At
the end of 2014, CKH officially terminated Barnett’s employment for lack of
work, but Barnett also understood that one of his supervisors “wanted him
gone.”
Barnett sued CKH in the circuit court, alleging his firing violated the
KCRA. He claimed that CKH discriminated against him for his association with
his wife, an individual with a disability as defined by the KCRA. CKH
responded by moving to dismiss Barnett’s suit under Kentucky Rule of Civil
Procedure (CR) 12.02(f) for failure to state a claim upon which relief can be
granted. CKH argued that the KCRA does not create a cause of action for
associational discrimination as Barnett alleged. And the trial court agreed with
CKH’s argument and dismissed the suit. The Court of Appeals affirmed the
trial court’s ruling and similarly found that the text of the KCRA does not
support a cause of action for discrimination based on an employee’s
association with a disabled individual. For reasons explained below, we affirm
the Court of Appeals.
2
II. ANALYSIS
A. We review de novo the trial court’s dismissal under CR 12.02(f).
A defensive motion under CR 12.02(f) requires the trial court to consider
as true the material facts alleged in the complaint and grant that motion only if
satisfied that the plaintiff would not be entitled to relief under any set of facts
that could be proved in support of the claim.2 The motion presents “a pure
question of law,” and appellate review is de novo.3 Our review of the present
case centers on statutory construction, also a matter of de novo review, so we
“look anew at this issue, respectfully considering the opinions of the lower
courts but without deference.”4
B. The KCRA does not create a cause of action for associational
discrimination.
The pertinent portion of the KCRA reads: “(1) It is an unlawful practice
for an employer: (a) To . . . discharge any individual, or otherwise discriminate
against an individual with respect to compensation, terms, conditions, or
privileges of employment, because . . . the person is a qualified individual with
a disability[.]”5 The KCRA defines disability as: “(a) A physical or mental
impairment that substantially limits one (1) or more of the major life activities
of the individual; (b) A record of such an impairment; or (c) Being regarded as
2 Kentucky Rules of Civil Procedure 12.02(f); Fox v. Grayson, 317 S.W.3d 1, 7
(Ky. 2010); Morgan & Pottinger, Att’ys, P.S.C. v. Botts, 348 S.W.3d 599, 601 (Ky. 2011)
(overruled on other grounds by Maggard v. Kinney, 576 S.W.3d 559 (Ky. 2019)).
3 Grayson, 317 S.W.3d at 7.
4 Lee v. Kentucky Dep’t of Corr., 610 S.W.3d 254, 257 (Ky. 2020).
5 KRS 344.040 (emphasis added).
3
having such an impairment.”6 Additionally, the KCRA defines a “qualified
individual with a disability” as:
“[A]n individual with a disability as defined in KRS 344.010 who,
with or without reasonable accommodation, can perform the
essential functions of the employment position that the individuals
hold or desires unless an employer demonstrates that he is unable
to reasonably accommodate an employee’s or prospective
employee’s disability without undue hardship on the conduct of
the employers' business.”7
In interpreting what the quoted KCRA provisions mean when read
together, this Court must apply principles of statutory interpretation. We must
first look to the plain language of the statute to “ascertain and give effect to the
intent of the General Assembly.”8 Only if the language is unclear do we
consider the legislatures’ unspoken intent, the statute’s purpose, and the
broader statutory scheme.9
Barnett argues that the broad purpose of these statutes is to prevent
discrimination of those who are associated with disabled persons, such as his
KRS 344.010(4). It is this language Barnett uses as the primary textual
6
support for his argument.
7 KRS 344.030(1).
8 Traveler’s Indemnity Company v. Armstrong, 565 S.W.3d 550, 558 (Ky. 2018).
(“The fundamental rule in statutory interpretation is to give effect to the legislative
intent.” Kentucky Indus. Utility Customers, Inc. v. Kentucky Utilities Co., 983 S.W.2d
493, 500 (Ky. 1998) (citing Wesley v. Bd. of Educ. of Nicholas County, 403 S.W.2d 28(Ky. 1966)). We interpret statutes ‘according to the plain meaning of the act and in
accordance with the legislative intent.’ Pate v. Dept. of Corrections, 466 S.W.3d 480,
488 (Ky. 2015) (quoting Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky.
2002) (citing Commonwealth v. Montaque, 23 S.W.3d 629 (Ky. 2000))). KRS
446.080 also instructs that “[a]ll statutes of this state shall be liberally construed with
a view to promote their objects and carry out the intent of the legislature[.]”).
9 Grayson, 317 S.W.3d 1 (“In addressing statutory interpretation, the Grayson
Court first looked at the plan language of the text, legislative intent, then the purpose
and history of the statute.”).
4
wife in the present case. And he reads the KCRA’s language “someone with an
impairment” broadly enough to encompass persons who are associated with an
individual with an actual impairment. But because statutes are not to be
interpreted contrary to their stated language, we must disagree. As the Court
of Appeals’ opinion explained, when these provisions are all read together, the
KCRA provides protection from discrimination for individuals with disabilities.
Overall, the statute’s plain language creates a special cause of action for those
individuals who are regarded themselves as having an actual impairment. The
statute provides first for those with a disability in KRS 344. 040. Then, KRS
344.010 lists three categories for determining who has a disability, one
category being those regarded as having an impairment. Importantly, no
language in the KCRA suggests an intent to protect those who are associated
with disabled persons. To so find “would be to contravene the plain language
of the KCRA,” as the Court of Appeals opinion aptly concluded.
Barnett urges this Court to consider our recent decision in Asbury
University v. Powell10 as support for his contention that we should find a cause
of action for associational discrimination despite the plain text of the statute.
In Powell, we reviewed the issue of whether a retaliation claim under the KCRA
requires an underlying violation of the law.11 Powell alleged Asbury retaliated
against her for reporting a mixed-motive theory of gender discrimination. The
10 486 S.W.3d 246 (Ky. 2016).
11 Id. at 251–52.
5
KCRA does not recognize a mixed-motive theory of discrimination.12 Asbury
argued Powell’s claim must fail as a matter of law because the KCRA does not
recognize the type of discrimination giving rise to the claimed retaliation.13
We held that Powell’s retaliation claim survived. We explained that
Powell’s claim was based on Asbury’s “response to her complaints of gender
discrimination” and that retaliation claims only require a good-faith belief that
the conduct reported was in violation of the KCRA.14 Under the KCRA,
retaliation claims may be properly brought so long as there is a good faith
belief that the underlying conduct violated the KCRA.15 In Powell, we did not
address a mixed-motive theory claim of discrimination could be brought
despite not being covered by the KCRA. Instead, we held that conduct not
covered by the KCRA can give rise to a valid retaliation claim so long as the
plaintiff reported it in the good-faith belief that the violation was covered by the
statute. Importantly, Powell did not require this Court to extend the statute,
nor to interpret it. Therefore, as Barnett argues, it is true that Powell
concerned alleged discrimination that was not expressly covered by the KCRA,
but the retaliation claim, which is what this Court upheld as properly brought,
was within the express language of the statute.
12 Id.13 Id. at 251.
14 Id. at 251–52.
15 Id. at 252.
6
This Court also agrees with the Court of Appeals’ conclusion that
Lexington-Fayette Urban County Human Rights Commission v. Metro
Management,16 an unpublished opinion Barnett cites, is not persuasive.17 The
Court of Appeals’ panel in Metro Management held that an interracial couple
had not established a prima facie claim of housing discrimination under the
KCRA because the couple did not qualify for housing otherwise.18 Importantly,
the appellate panel’s reasoning did not rest on the fact that interracial couples
are not explicitly given a cause of action under the KCRA. Instead, the panel
acknowledged in a footnote that interracial relationships are protected by the
KCRA without citing any caselaw.19 Barnett urges us to find Metro
Management persuasive authority to hold those who associate with disabled
persons to be covered by the KCRA, despite such status not being expressly
mentioned in the statute. But, the KCRA lists familial status, race, religion,
national origin, and sex as protected classes under the statute. Metro
Management references the statute accordingly, and, like the Court of Appeals
in the present case, we are not persuaded that an interracial couple’s right to
housing compares under the present facts to an associated individual’s right to
maintain employment.
16 2001–CA–001234–MR, 2003 WL 22271567 (Ky. App. Oct. 3, 2003).
17While unpublished appellate decisions may be considered if there are no
published cases on point, they are not binding upon us. CR 76.28(4)(c).
18 Metro Mgmt., at 5*.
19 Id. *5 n. 28.
7
Barnett also argues that the general purpose of the KCRA requires us to
find a cause of action for associational discrimination. True, sometimes we
consider the general purpose of a statute as we undertake statutory
interpretation.20 The purpose of the KCRA is “[t]o safeguard all individuals
within the state from discrimination because of familial status, race, color,
religion, national origin, sex, age forty (40) and over, or because of the person’s
status as a qualified individual with a disability as defined in KRS 344.010 and
KRS 344.040.”21 The express purpose of the KCRA only further indicates that
association, left entirely unmentioned, was not meant to be protected.
Barnett correctly argues that the KCRA is to be interpreted to provide a
state-law vehicle for executing protections similar to those afforded under the
federal Americans with Disabilities Act of 1990 (ADA), a statute that expressly
covers associational disability.22 And we consider the ADA when interpreting
vague language in the KCRA.23 For example, in Noel v. Elk Brand
Manufacturing Co.,24 the KCRA was unclear about whether the employee or the
employer carried the initial burden of proving the reasonableness of an
20Grayson, 317 S.W.3d at 8. (“In truth, close examination of the relevant
language appears to reveal a latent ambiguity. So we must consider all of the relevant
accompanying facts, circumstances, and laws, including the time-honored canons of
construction, in order to interpret § 93 properly.”).
21 KRS 344.020(1)(b).
22 42 U.S.C. § 12112(b)(4); KRS 344.020(1)(a).
23 Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 591 (Ky. 2003) (“The Kentucky
Civil Rights Act was modeled after federal law, and our courts have interpreted the
Kentucky Act consistently therewith.”) (citing Bank One, Kentucky N.A. v. Murphy, 52
S.W.3d 540, 544 (Ky. 2001)).
24 Noel v. Elk Brand Mfg. Co., 53 S.W.3d 95, 105 (Ky. App. 2000).
8
accommodation for a disabled employee. Because the KCRA is to be
interpreted with the ADA’s purpose and interpretation in mind, the Court of
Appeals in Noel appropriately considered how similar language in the ADA had
been interpreted.25 The appellate panel then interpreted the KCRA, guided by
the ADA’s assignment of the initial burden of proof.26
However, in contrast to Noel, in this instance, we are not interpreting
vague language in the KCRA. The statute is clear. In Noel, the KCRA’s text
established that one party was meant to have the initial burden of proof but
did not state which one.27 So, the Court of Appeals properly resorted to the
ADA’s interpretation of similar language and applied it to a KCRA claim to
ascertain which party bore the initial burden of proof. Importantly, we
encounter no language in the KCRA suggesting legislative intent to protect
25 Noel, 53 S.W.3d at 106. (“Since the purpose of the Kentucky Civil Rights Act
with respect to individuals with disabilities is to adopt the policies of the ADA at the
state level and safeguard those individuals from discrimination, the interpretations of
the ADA which place the initial burden of proposing reasonable accommodations on
the employee should also apply to KRS 344.030(1).”)
26 Id.27Id. at 105–06. (“A question that arises is whether KRS 344.030(1), which
defines a ‘qualified person with a disability,’ places the initial burden of showing a
proposed accommodation is reasonable on the employee. The statute provides, in part,
that:
‘[A] “[q]ualified individual with a disability” means an individual with a disability
as defined in KRS 344.010 who, with or without reasonable accommodation, can
perform the essential functions of the employment position that the individual holds
or desires unless an employer demonstrates that he is unable to reasonably
accommodate an employee's or prospective employee's disability without undue
hardship on the conduct of the employers' business.
9
associational discrimination. As a result, there is no language for this Court to
define in consideration of the ADA.
As the Court of Appeals noted in the present case, the General Assembly
enacted the KCRA two years after the passage of the federal ADA. The General
Assembly had the opportunity to include protection for associational
discrimination claims within the KCRA as the ADA provides. But it included
no such protection. As the Court of Appeals stated, we must “presume that the
legislature did not intend to provide such a protection to Kentucky citizens.
Thus, we must conclude that Barnett has failed to state a claim supported
under Kentucky law.” We are persuaded to reach the same conclusion.
III. CONCLUSION
For the reasons stated, we affirm the Court of Appeals’ opinion and
uphold the trial court’s order dismissing of Barnett’s complaint.
Minton, C.J.; Conley, Hughes, Keller, Nickell, and VanMeter, JJ., sitting.
Lambert, J., not sitting. Minton, C.J.; Conley, Hughes, Keller, Nickell, and
VanMeter, JJ., concur.
COUNSEL FOR APPELLANT:
Paul Stewart Abney
Kelly Parry-Johnson
Jeremiah Wesley Reece
Soha Tajoddin Saiyed
Abney Law Office, PLLC
COUNSEL FOR APPELLEE:
Robert Edwin Maclin, III
Jaron Paul Blanford
Elizabeth Chesnut-Barrera
McBrayer, McGinnis, Leslie & Kirkland, PLLC
10