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Ivey v. McCreary County Fiscal Court

United States District Court, E.D. Kentucky, Southern Division

March 29, 2013

DAVID IVEY and RHONA IVEY, Plaintiffs,
v.
MCCREARY COUNTY FISCAL COURT, MCCREARY COUNTY EMERGENCY MEDICAL SERVICES, and JIMMY BARNETT, Individually and in his Official Capacity as DIRECTOR of MCCREARY COUNTY EMERGENCY MEDICAL SERVICES, Defendants

Page 763

For David Ivey, Rhonda Ivey, Plaintiffs: Anthony J. Bucher, LEAD ATTORNEY, B. Dahlenburg Bonar, Covington, KY; Barbara D. Bonar, LEAD ATTORNEY, Law Offices of B. Dahlenburg Bonar, P.S.C., Covington, KY.

For McCreary County Fiscal Court, Jimmy Barnett, McCreary County Emergency Medical Services, Defendants: Jason E. Williams, London, KY.

OPINION

Gregory F. Van Tatenhove, United States District Judge.

Page 764

MEMORANDUM OPINION & ORDER

Rhonda Ivey, a former Emergency Medical Technician for McCreary County Emergency Medical Services, claims that she was sexually harassed at her workplace by Jimmy Barnett, the former Whitley City Fire Chief. She claims that she reported this harassing conduct to her supervisors at EMS and to the McCreary County Fiscal Court, but no action was taken; that is until Jimmy Barnett became the Director of McCreary County EMS and terminated the employment of her and her husband, David Ivey. The Iveys now bring claims against the McCreary County Fiscal Court, McCreary County Emergency Medical Services, and Jimmy Barnett for Gender Discrimination, Hostile Work Environment and Retaliation under Title VII, 42 U.S.C. § 2000e, et seq., and KRS § 344, et seq., as well as claims for Wage and Hour Violations under KRS § 337, Violations of Kentucky Whistleblower Statute under KRS § 61.102, and Punitive Damages. The moving Defendants argue, pursuant to Federal Rule of Civil Procedure 12(b)(6),[1] that many of the claims against them are deficient and must be dismissed. For the reasons stated below, Defendants' Motion to Dismiss [R. 7] will be GRANTED in part and DENIED in part.

I.

In reviewing a Rule 12(b)(6) motion, the Court " construe[s] the complaint in the light most favorable to the plaintiff, accept[s]

Page 765

its allegations as true, and draw[s] all inferences in favor of the plaintiff." DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). This Court, however, " need not accept as true legal conclusions or unwarranted factual inferences." Id. (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). For Defendants' motion to be granted, they have the burden of showing the Plaintiff has failed to state a claim for relief." Id. (citing Carver v. Bunch, 946 F.2d 451, 454 (6th Cir. 2005)).

II

A

The McCreary County Defendants argue that the McCreary County Fiscal Court, the McCreary County Emergency Medical Services, and Jimmy Barnett in his official capacity as Director of the McCreary County EMS, are immune under the doctrines of governmental and sovereign immunity from the state law claims advanced by the Iveys. When assessing whether defendants are entitled to immunity from state law tort liability, the Court must apply Kentucky rules of sovereign immunity. See, Funke v. Coogle, No. 3:11-CV-310-H, 2013 WL 209602 (W.D.Ky 2013) (citing King v. Taylor, 694 F.3d 650, 662-64 (6th Cir. 2012). Under Kentucky law, a " county government is cloaked with sovereign immunity." Schwindel v. Meade County, 113 S.W.3d 159, 163 (Ky. 2003) (citing Franklin County v. Malone, 957 S.W.2d 195, 203, 44 10 Ky. L. Summary 18 (Ky. 2001) (overruled on other grounds)). Counties may not be held vicariously liable for the ministerial acts of its agents, servants, and employees. Id. Further, when sued in their official capacities, agents of the county are " cloaked with the same immunity as the government or agency he/she represents." Id. at 169 (citing Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001)). However, sovereign immunity is subject to waiver by the Kentucky Legislature. Id. (citing Reyes v. Hardin Memorial Hospital, 55 S.W.3d 337, 338-39 (Ky. 2003)). The Supreme Court of Kentucky has stated that it will find " waiver only where stated 'by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Department of Corrections v. Furr, 23 S.W.3d 615, 616 (Ky. 2000) (citing Withers v. University of Kentucky, 939 S.W.2d 340, 44 3 Ky. L. Summary 25 (Ky. 1990)).

The McCreary County Defendants first claim immunity from the Iveys' state law claims for Gender Discrimination, Hostile Work Environment, and Retaliation under the Kentucky Civil Rights Act, KRS § 344, et seq. However, the Kentucky Legislature has by overwhelming implication waived its sovereign immunity for claims made under the KCRA. Furr, 23 S.W.3d at 616 (" In this case, 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 and affirm the Court of Appeals." ). In recognizing this waiver, the Kentucky Supreme Court stated as follows:

In this case, the applicable statute provides, " It is unlawful practice for an employer ...." KRS 344.040. And as shown above, the definition of employer includes a " person," which is defined to include the state, any of its political or civil subdivisions, or agencies. KRS 344.010(1). 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.

Id at 619. Therefore, sovereign immunity, having been waived by the Kentucky Legislature, does ...


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