United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
Plaintiff Denise Ludwig, an employee of Defendants Commonwealth of Kentucky Department of Military Affair and Division of Emergency Management, brought this employment discrimination action after she was allegedly passed over for a promotion in favor of a male applicant. She claims that she was the victim of sex discrimination and retaliation under the Kentucky Civil Rights Act, as well as wage discrimination on the basis of sex in violation of the Kentucky Equal Pay Act and its federal counterpart. The Commonwealth now moves to dismiss Ludwig's retaliation claim and Kentucky Equal Pay Act claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. For the foregoing reasons, the Court will GRANT this motion, but will dismiss Ludwig's retaliation claim without prejudice so that, if she so chooses, Ludwig may seek to amend her complaint accordingly.
Since November 16, 2007, Denise Ludwig has been a merit-based employee with the Commonwealth of Kentucky Division of Emergency Management, a part of the Department of Military Affairs. [Compl., R. 1-3 at ¶ 7]. As part of her job duties, Ludwig prepares for and responds to emergency situations; she also works with county governments to ensure their disaster preparedness. [R. 1-3 at ¶¶ 8-10]. Ludwig alleges that, in November 2010, she applied for a promotion to the position of Training Development Specialist II, but was passed over for a male applicant, despite the fact that she had more experience than him and had received positive evaluations during her tenure. [R. 1-3 at ¶ 11]. She was soon reclassified into the position she sought, but she claims that she was paid less than her male counterparts. [ Id. ] Later, Ludwig claims that the Commonwealth required her to transfer, reduced her pay, and, as of August 16, 2011, demoted her from Training Development Specialist II (a Grade 13 position) to the position she currently holds, Administrative Specialist III (a Grade 12 position). [Compl., R. 1-3 at ¶ 12-13]. Finally, she claims that she applied for a regional manager position in August 2012, but was again passed over for a less experienced and less qualified male applicant. [R. 1-3 at ¶ 13].
On August 21, 2013, Ludwig filed a Complaint against the Commonwealth in Pulaski Circuit Court. [Compl., R. 1-3]. She alleged sex discrimination and retaliation under the Kentucky Civil Rights Act, as well as wage discrimination on the basis of sex in violation of "the federal and state Equal Pay Act, 29 U.S.C. § 206(d)(1), and KRS § 337.423." [R. 1-3 at ¶ 5]. The Commonwealth removed the action to this Court. [R. 1]. In response, Ludwig moved to remand, arguing that none of her claims "arose under" federal law. [R. 5]. This Court found that Ludwig had pleaded claims under both the federal Equal Pay Act, 29 U.S.C. § 206(d)(1), and its Kentucky counterpart, Kentucky Revised Statute (KRS) § 337.423, so it denied her motion to remand. [R. 12].
The Commonwealth now moves to dismiss Ludwig's retaliation claim and Kentucky Equal Pay Act claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. [R. 2]. The Commonwealth first argues that Ludwig's Complaint fails to set forth sufficient factual allegations to state all elements of a retaliation claim. [Def.'s Mem. Supp. Mot. Dismiss, R. 2-1 at 2-3]. It also contends that Ludwig's Kentucky Equal Pay Act claim is barred by sovereign immunity or, in the alternative, the Act's statute of limitations. [R. 2-1 at 4-5].
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to seek dismissal of a complaint which fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil Procedure 8 requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). However, as is now well known, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While a plaintiff need not provide "detailed factual allegations, " she must advance more than "a formulaic recitation of the elements of a cause of action." Id. (citing Twombly, 550 U.S. at 555). A court reviewing a 12(b)(6) motion must "accept all the Plaintiffs' factual allegations as true and construe the complaint in the light most favorable to the Plaintiffs, " Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005), but it is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. (citing Twombly, 550 U.S. at 556). Ultimately, a plaintiff must "plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). Of particular import here, the Iqbal plausibility pleading standard applies equally in the employment discrimination context. See Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012).
The Commonwealth first argues that Ludwig's Complaint fails to sufficiently describe the Commonwealth's retaliatory conduct, as well as the protected activity that triggered the alleged retaliation. [Mot. R. 2-1 at 3]. In order to establish a prima facie case of retaliation under the Kentucky Civil Rights Act (KCRA), a plaintiff must show:
(1) that [the] plaintiff engaged in an activity protected [the Act]; (2) that the exercise of his civil rights was known by the defendant; (3) that, thereafter, the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action.
Brooks v. Lexington-Fayette Urban Cnty Hous. Auth., 132 S.W.3d 790, 803 (Ky. 2004) (citing Christopher v. Stouder Memorial Hosp., 936 F.2d 870, 877 (6th Cir. 1991), cert. denied, 502 U.S. 1013 (1991)). Kentucky courts interpret retaliation under the KCRA in a manner "consistent with the interpretation of unlawful retaliation under federal law." Brooks, 132 S.W.3d at 802; see also Brewer v. Gen. Drivers, Warehousemen & Helpers Local Union 89, 190 F.Supp.2d 966, 973 (W.D. Ky. 2002).
Relevant here, an employee engages in "protected activity" when she "contest[s] any unlawful employment practice." Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989). "Protected activity" under the KCRA encompasses two types of conduct: "(1) participation in a proceeding with the Equal Employment Opportunity Commission' and (2) opposition to an apparent Title VII [or KCRA] violation.'" Sullivan v. Paycor, Inc., 2013 U.S. Dist. LEXIS 73169, *10, 2013 WL 2286069 ...