Commonwealth of Kentucky, Justice Cabinet, Department of Corrections v. Nora Perkinson ( 2022 )


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  •                 RENDERED: NOVEMBER 4, 2022; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2020-CA-1023-MR
    COMMONWEALTH OF KENTUCKY,
    JUSTICE CABINET, DEPARTMENT
    OF CORRECTIONS                                                     APPELLANT
    APPEAL FROM OLDHAM CIRCUIT COURT
    v.               HONORABLE KAREN A. CONRAD, JUDGE
    ACTION NO. 20-CI-00123
    NORA PERKINSON; CORRECT
    CARE SOLUTIONS, LLC; AND
    WELLPATH, LLC                                                       APPELLEES
    OPINION
    AFFIRMING
    ** ** ** ** **
    BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
    THOMPSON, K., JUDGE: The Commonwealth of Kentucky, Justice Cabinet,
    Department of Corrections (the DOC) filed an interlocutory appeal to challenge the
    Oldham Circuit Court’s decision allowing Nora Perkinson’s Kentucky Civil Rights
    Act (KCRA) retaliation claims made pursuant to Kentucky Revised Statutes (KRS)
    344.280 to proceed against it. The DOC argues there is no valid waiver of its
    sovereign immunity because any waiver of its sovereign immunity is limited, it is
    not waived for claims that are not within the scope of the KCRA, the KCRA only
    applies to claims against employers and, thus, excludes the DOC from its scope
    because the DOC is not Perkinson’s employer. We disagree and affirm because
    sovereign immunity was generally waived for purposes of KCRA and we cannot
    appropriately address the DOC’s substantive issue as to whether non-employers
    can be liable under KRS 344.280 in this interlocutory appeal.
    In 2020, Perkinson filed a complaint against Correct Care Solutions,
    LLC/Wellpath LLC (CCS/Wellpath)1 and the DOC. She alleged that while
    working at the Kentucky State Reformatory (KSR) for CCS/Wellpath which
    contracted to providing medical services for the DOC, she was subjected to sexual
    harassment by two DOC employees (Michael Williams and John Grevious),
    CCS/Wellpath allowed this sexual harassment to continue, and the DOC conspired
    with CCS/Wellpath to create a hostile and retaliatory work environment.
    Perkinson argued that CCS/Wellpath and the DOC was aware that there was a
    pervasive sexual harassment and hostile work environment at KSR perpetrated by
    Williams and Grevious, Perkinson was sexually harassed and assaulted by both
    1
    Based on Perkinson’s allegations her employer essentially changed names but remained the
    same entity. As resolution of this issue and or which entity did what is irrelevant for purposes of
    this appeal, we refer to them jointly.
    -2-
    Grievous and Williams, and when Perkinson reported the sexual harassment,
    sexual assaults, and a hostile work environment, she was retaliated against. She
    specifically alleged: (Count I) CCS/Wellpath and the DOC violated KRS 344.040
    by subjecting her to sexual harassment and a hostile work environment, explaining
    that the DOC acted as her joint employer with CCS/Wellpath; (Count II)
    CCS/Wellpath and the DOC violated KRS 344.280 by subjecting her to retaliation
    and discrimination for reporting the workplace harassment and hostile work
    environment; and (Count III) CCS/Wellpath and the DOC violated KRS 344.280
    by conspiring with each other to violate the KCRA.
    The DOC filed a motion to dismiss pursuant to the Kentucky Rules of
    Civil Procedure (CR) 12.02(a) for lack of subject matter jurisdiction and 12.02(f)
    failure to state a claim upon which relief can be granted as Perkinson is not its
    employee, the employment provisions of the KCRA only extend to employees, and
    “sovereign immunity bars her claims because the General Assembly has not
    waived immunity for discrimination claims by non-employees.” Although the
    DOC substantively discussed why it believed dismissal would be appropriate as to
    all three counts based on the facts of the case, its argument regarding sovereign
    immunity was very limited.
    The circuit court determined that the DOC’s motion to dismiss was
    well taken as to Count I because the DOC was not Perkinson’s joint employer with
    -3-
    CCS/Wellpath. The circuit court explained that Perkinson “failed to plead any
    facts that demonstrate that DOC had any control over her day to day employment,
    her compensation, benefits, the ability to hire, fire or discipline her or affect any
    essential terms and conditions of her employment.” However, the circuit court
    agreed that Perkinson’s retaliation and conspiracy claims under Counts II and III
    could proceed because Perkinson was correct that pursuant to KRS 344.280 a
    “person” was prohibited from retaliating against her for opposing a practice
    declared unlawful under KCRA and could also be liable for conspiracy to violate
    KCRA whether or not the DOC was her employer.
    The DOC filed an interlocutory appeal on its sovereign immunity
    issue.2 Perkinson filed a motion to dismiss this appeal as being an invalid
    interlocutory appeal as the DOC sought to receive premature review of a
    substantive legal issue and Department of Corrections v. Furr, 
    23 S.W.3d 615
     (Ky.
    2000), conclusively established waiver of the DOC’s sovereign immunity. The
    motion was passed to the merits panel. We deny this motion to dismiss via
    separate order as moot.
    “[A]n order denying a substantial claim of absolute immunity is
    immediately appealable even in the absence of a final judgment.” Breathitt Cnty.
    2
    Given the procedural posture of this case, we are limited to resolving this issue and Perkinson
    could not cross-appeal the dismissal of Count I.
    -4-
    Bd. of Educ. v. Prater, 
    292 S.W.3d 883
    , 887 (Ky. 2009). See Baker v. Fields, 
    543 S.W.3d 575
    , 577-78 (Ky. 2018). As immunity is a legal question, we review de
    novo the circuit court’s decision to deny immunity to the DOC. Kentucky Heritage
    Land Conservation Fund Board v. Louisville Gas and Electric Company, 
    648 S.W.3d 76
    , 82 (Ky.App. 2022).
    The DOC argues that it had sovereign immunity because it is not
    Perkinson’s employer and, therefore, cannot be subject to any liability pursuant to
    KRS 344.280, relying heavily on Steilberg v. C2 Facilities Solution, LLC, 
    275 S.W.3d 732
     (Ky.App. 2008), to justify its position that Perkinson has no recourse
    under the KCRA because she is not the DOC’s employee. The DOC generally set
    out its argument as follows, in its brief headings:
    I.     The KCRA, at most, waives sovereign immunity
    for claims within its scope.
    II.    Perkinson’s claims fall outside the scope of the
    KCRA – and thus outside its immunity waiver –
    because its protections extend only to employees.
    A. The circuit court erred because it ignored
    Steilberg, which is binding precedent that
    requires an employment relationship for
    liability under KRS 344.280.
    B. Steilberg correctly applied KRS 344.280,
    because the statute requires an employment
    relationship.
    -5-
    C. Because KRS 344.280 claims may only be
    brought by employees, Perkinon’s [sic] claims
    against the Department fail as a matter of law.
    III.   The Department has presented a substantial – and
    correct – claim of immunity.
    The DOC argues that because it is not Perkinson’s employer, it must
    be immune from suit under the general language of Steilberg, 
    275 S.W.3d at 735
    ,
    that “the Kentucky Civil Rights Act protects an employee against unlawful
    discrimination[,]” and the fact that retaliation claims in Steilberg were dismissed
    along with discrimination claims once it was determined that C2 was not
    Steilberg’s employer.
    The DOC states that the waiver of immunity found in Furr is
    insufficient as “[t]his ignores that the KCRA, like many immunity-waiving
    statutes, contains at most a limited waiver.” The DOC argues that based on such a
    limited waiver, while Perkinson “has nominally invoked the KCRA, . . . her claims
    are not the type for which the Commonwealth has waived its immunity” because
    “KRS 344.280 does not waive immunity for claims against a non-employer state
    agency.”
    Perkinson generally opposes the DOC’s position because she argues
    that sovereign immunity for the DOC was ruled to be waived under the KCRA in
    Furr and argues that the clear language of KRS 344.280 allows non-employers to
    be liable for retaliation.
    -6-
    First, we consider the import of Furr. We disagree with the DOC
    about the scope of Furr. In Furr, the Kentucky Supreme Court stated at the outset
    “we address the single issue of whether the Commonwealth of Kentucky has
    waived sovereign immunity for claims brought under the Kentucky Civil Rights
    Act. KRS Chapter 344. We hold that it has[.]” Furr, 23 S.W.3d at 616. This
    opinion contained no limitations as to the scope of this waiver; it said nothing
    about the waiver as to the Commonwealth being limited to when the
    Commonwealth is acting as an employer, although the case was about a claim
    hinging upon the DOC being the employer.
    The Kentucky Supreme Court declared there was an overwhelming
    implication of waiver of sovereign immunity based on the reasoning of the Court
    of Appeals below:
    KRS 344.030(2) defines “employer” in pertinent part as
    “a person who has eight (8) or more employees within
    the state . . . .” KRS 344.010(1) defines “person” as used
    in KRS Chapter 344 to include “the state, any of its
    political or civil subdivisions or agencies.” (Emphasis
    added). The very definition of “person” as adopted by
    our General Assembly specifically names the state as an
    employer for purposes of KRS Chapter 344, thus
    effecting a waiver of sovereign immunity by
    “overwhelming implication.”
    Id. at 617. It also found further support for its holding in the language of the
    KCRA, explaining as follows:
    One of the purposes of KRS Chapter 344 is:
    -7-
    To safeguard all individuals within the state from
    discrimination . . .; thereby to protect their interest
    in personal dignity and freedom from humiliation,
    to make available to the state their full productive
    capacities, to secure the states against domestic
    strife and unrest which would menace its
    democratic institutions, to preserve the public
    safety, health, and general welfare, and to further
    the interest, rights, and privileges of individuals
    within the state.
    KRS 344.020(1)(b) (emphasis added).
    These words contain a solemn and hard won promise to
    all the people of the Commonwealth. The promise was
    made by the Commonwealth to its citizens through the
    General Assembly. What hollow words indeed if the
    safeguard against discrimination does not include the
    right to be free from of acts of discrimination committed
    by the Commonwealth itself, or in its name.
    Id.
    The Kentucky Supreme Court also rejected the DOC’s “argument that
    the General Assembly did not intend to waive sovereign immunity because the
    remedy provision of KRS 344.450 provides for neither an express cause of action
    against the Commonwealth nor an ‘implied’ cause of action against the
    Commonwealth.” Furr, 23 S.W.3d at 617. The Court stated unequivocally “[this]
    argument does not withstand scrutiny.” Id. It explained that because KRS 344.450
    was silent concerning against whom a cause of action may be brought, that “we are
    directed to the particular acts that constitute a violation of the chapter in order to
    -8-
    determine against whom a cause of action may be brought.” Furr, 23 S.W.3d at
    618. It then again analyzed the definition of an employer including a person which
    is defined to include the state and concluded: “Thus, by overwhelming
    implication, KRS 344.450 provides a cause of action against the Commonwealth
    for violations of the Kentucky Civil Rights Act. This is as it should be.” Furr, 23
    S.W.3d at 618.
    Furr provides for a broad waiver of immunity when it is alleged that
    the Commonwealth has violated the KCRA. KRS 344.280 is part of the KCRA.
    Additionally, the language of KRS 344.280 is broad and not limited to liability for
    employers. It begins: “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[.]”
    The DOC is included in the definition of person, CCS/Wellpath also qualifies as a
    person, and both can be liable if they conspired to retaliate against Perkinson.
    Therefore, the DOC’s actions could facially qualify for a violation under this
    provision.
    Although the DOC heavily relies on Steilberg to support its position,
    it does not address immunity at all. Steilberg addressed whether an independent
    contractor could be considered an employee and, thus, bring a KCRA unlawful
    discrimination claim, with all parties agreeing that “the correct resolution of the
    -9-
    motion for summary judgment turns upon whether Steilberg can be regarded as
    C2’s employee.” Steilberg, 
    275 S.W.3d at 735
    .
    It appears that Steilberg did not raise any issue as to whether the
    retaliation claims could survive such a decision. She may have assumed that if C2
    was not her employer, there could be no unlawful practice to which any retaliation
    claim could attach. That is not necessarily true. See Palmer v. International Ass’n
    of Machinists and Aerospace Workers, AFL-CIO, 
    882 S.W.2d 117
    , 120-21 (Ky.
    1994) (affirming that the entities were not one employer and thus did not have the
    requisite number of employees to qualify as an employer under the KCRA but
    reversing and remanding on the issue of whether there was no cause of action for
    unlawful retaliation against two individuals pursuant to KRS 344.280). We do not
    consider the absence of an explanation as to why the retaliation claim was also
    dismissed to mean, by implication, that retaliation claims cannot be sought against
    non-employers.
    No further analysis is needed to confirm that Perkinson is not barred
    from proceeding with her retaliation claims against the DOC, and it would be
    inappropriate for us to substantively analyze this immunity issue further as
    explained in Baker.
    Baker provides:
    A court can only address the issues presented in the
    interlocutory appeal itself, nothing more. Otherwise,
    -10-
    interlocutory appeals would be used as vehicles for
    bypassing the structured appellate process. Specifically,
    this means, and we hold, that an appellate court
    reviewing an interlocutory appeal of a trial court’s
    determination of a defendant’s immunity from suit is
    limited to the specific issue of whether immunity was
    properly denied, nothing more.
    543 S.W.3d at 578 (emphasis added).
    The DOC goes much further in its appeal than limiting itself to
    whether its sovereign immunity was waived. Instead, it seeks an answer to a
    substantive legal issue, whether a non-employer can be liable for retaliation.
    While this question is an interesting legal issue,3 it is not an immunity issue.
    3
    The Sixth Circuit has squarely addressed this issue, explaining KRS 344.280 “forbids
    retaliation” by “a person[]” and “plainly permits the imposition of liability on individuals.”
    Morris v. Oldham Cnty. Fiscal Court, 
    201 F.3d 784
    , 794 (6th Cir. 2000). However, our Courts
    have not unequivocally done the same. Palmer reversed the Court of Appeals’ holding that there
    was no civil remedy on a retaliation claim against two individuals but did not specifically discuss
    any argument about whether non-employers could be liable for retaliation. Instead, it examined
    the Court of Appeals’ determination that because KRS 344.990 makes a willful violation of KRS
    344.280 a misdemeanor, a civil recovery was precluded; it rejected that reasoning because KRS
    344.450 provided for a civil recovery. Palmer, 882 S.W.2d at 120. It is unclear whether anyone
    argued that non-employers could not be liable for retaliation. While two Justices would have
    affirmed the grant of summary judgment in the two individuals’ favor, they did not provide any
    explanation of their reasoning. Id. at 121 (Stephens, C.J., and Spain, J., concurring in part). In
    Brooks v. Lexington-Fayette Urban County Housing Authority, 
    132 S.W.3d 790
    , 808 (Ky. 2004),
    the majority opinion discussed individual liability for retaliation and noted the employee made “a
    persuasive argument . . . that individuals can be held liable for unlawful retaliation under KRS
    344.280[,]” referencing Morris, but determined the issue was moot as the Court was reinstating
    the judgment against Brooks’ employer finding the Housing Authority liable and so she could
    not get additional relief. Justices Keller and Stumbo would have allowed for joint and several
    liability against the individuals. Id. at 812-13 (Keller, J. concurring).
    -11-
    Accordingly, we affirm the Oldham Circuit Court decision to deny the
    DOC’s motion to dismiss the counts relating to retaliation as the DOC is not
    immune from suit under the KCRA.
    ALL CONCUR.
    BRIEF FOR APPELLANT:                     BRIEF FOR APPELLEE:
    Shawn D. Chapman                         Joe F. Childers
    Edward A. Baylous II                     Bethany N. Baxter
    Frankfort, Kentucky                      Lexington, Kentucky
    -12-
    

Document Info

Docket Number: 2020 CA 001023

Filed Date: 11/3/2022

Precedential Status: Precedential

Modified Date: 11/10/2022