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

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NOT TO BE PUBLISHED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.
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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
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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.
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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.
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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.
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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:
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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
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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
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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,
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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).
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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
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