United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
JOSEPH M. HOOD, Senior District Judge.
This matter is before the Court upon the Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), filed by Defendants Jennifer Compton and Bluegrass Workforce Investment Board ("WIB") [DE 3]. Plaintiff has filed a Response [DE 5], and Defendants have filed a Reply in further support of their Motion [DE 9]. Having considered Defendants' Motion, it shall be granted for the reasons stated below.
When reviewing a Motion to Dismiss, the Court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). This presumption of truth, however, "is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also insufficient for a complaint to offer mere "labels and conclusions, " or to provide a "formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, "to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Meeting this standard requires a plaintiff to plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. And a complaint does not meet this standard if it pleads facts that are "merely consistent with" a defendant's liability. Id.
In order to evaluate the defendants' Motion to Dismiss, the Court accepts the following factual averments in Plaintiff's Complaint to be true. Plaintiff Fogle was employed by the Bluegrass Area Development District ("BADD") from December 15, 2009, through June 21, 2013, and Defendant Compton was her "immediate supervisor." [Compl., DE 1-1 at ¶¶ 6, 9.] During her employment, Fogle she received "good evaluations" of her work from 2009-2013. [ Id. at ¶ 10.] Fogle's primary duties were "refining and directing a program focused on re-entry into the community for individuals about to be released from correctional facilities, individuals with child support issues and ex-offenders with barriers to success and successful reentry into their community." [ Id. at ¶ 7.]
Prior to her employment by the BADD, in 2006, Fogle had designed and developed a program, then known as "A Vision for You" and later known as "Steppin to a New Beat." Fogle "gratuitously allowed [BADD] to the use of her Steppin to a New Beat' program during her employment so as to increase her effectiveness in achieving the desired outcomes of her employer." The program "assisted individuals with employment and housing opportunities." [ Id. at ¶ 8.]
In February 2012, Plaintiff "raised questions about individuals who had enrolled in her Steppin to a New Beat' program who were not participating yet were still being counted as active participants." [ Id. at ¶ 11.] Then, on January 15, 2013, "Defendant received a complaint concerning the Plaintiff's supervision of the housing program." [ Id. at ¶ 12.] She avers that she was questioned about the complaint and was told that "there were allegations against her by Defendant David Duttlinger, Executive Director of the Bluegrass Area Development District on April 24, 2013, " which she denied. [ Id. at ¶¶ 13-14.] She claims that she was suspended with pay on April 24, 2013 "after Defendant received a complaint that the Plaintiff was accepting rent for housing as part of the participation in the Steppin to a New Beat' program." [ Id. at ¶ 15.] An investigation was undertaken and she was informed on May 13, 2013, that the investigation was complete and that she could return to work by Director Lenny Stolz. [ Id. at ¶¶ 16-17.] However, the Board of Directors did not accept the decision to allow her to return to work and her employment was terminated on June 21, 2013. [ Id. at ¶¶ 18-19.]
Plaintiff requested a grievance hearing to contest the termination of her employment sometime between June 28 and July 1, 2013. [ Id. at ¶ 20.] She avers that "Defendant" initially alleged that she "had never requested a hearing" but eventually the "request for a hearing was denied by the Defendant." [ Id. at ¶ 21.] She had neither a pre-termination or post-termination hearing. [ Id. at ¶ 22.]
Plaintiff filed her Complaint in Fayette Circuit Court on April 23, 2014, and it was removed to this Court on May 23, 2014. On facts set forth, in Count 1 of her Complaint, Plaintiff claims that she was wrongfully discharged in violation of public policy by BADD because "she reported to her supervisors the questionable bookkeeping practices of Defendant regarding individuals enrolled but not actively participating in the Steppin to a New Beat' program" and that "Defendant retaliated against" her by "placing her on administrative leave and ultimately terminating her [employment]" and "attempting to delay her receipt of retirement funds to which she was entitled." [ Id. at ¶¶ 25-27.]
Plaintiff next claims, in Count 2, that she was denied procedural due process under the Fourteenth Amendment to the United States Constitution and Section 2 of the Constitution of the Commonwealth of Kentucky in the absence of pre- or post-termination procedure. [ Id. at 37-39.] She explains that, "[a]t the time of her discharge, Plaintiff was told that she was being terminated for removing files from her office" but, "[a]t no time prior to [her] discharge were the allegation[s] of removing files discussed with her by the Defendant." [ Id. at ¶¶ 32-33.] Further, she claims, "[s]ubsequent to Plaintiff's dismissal, the Plaintiff requested a grievance hearing pursuant to the Defendant's personnel manual" which "request was denied by the Defendant." [ Id. at 34-35.] She argues that as a result of her employment with "Defendant as a public entity, " she had a legitimate expectation of continued employment" and "a Constitutionally protected property interest in her employment with the Defendant which could only b[e] taken pursuant to Due Process." [ Id. at 36-37.]
In Count 3, she claims that she was defamed on June 19 and October 2013, when Defendants Duttlinger and Compton "caused to be published and disseminated a notice to approximately 300 persons that Plaintiff had misappropriated funds and compromised personal information" and that Duttlinger "disseminated" the publication "without an adequate investigation to determine the truth" resulting in injury to her reputation in the community. [ Id. at ¶¶ 42-44.] Finally, in Count 4, Plaintiff complains that she "gratuitously allowed [BADD] the use of her Steppin to a New Beat' program during her employment so as to increase her effectiveness in achieving the desired outcomes of her employer" and that BADD and Compton gave the program to WIB. [ Id. at ¶¶ 49-50.] Because she "never conveyed any of her rights" to the program nor "g[a]ve [n]or convey[ed] any license to utilize such program to Defendants in any shape, form or fashion without her direct participation and supervision" to Defendants and received "no consideration" for their use of it despite their continued use of the program, she claims that Defendants' continued use of the "Steppin to a New Beat" program, held out to the community as their own, has caused her economic injury and damage to her reputation in violation of the Fifth Amendment to the United States Constitution and Section 13 of the Constitution of the Commonwealth of Kentucky.
In Count 1 of the Complaint, Plaintiff alleges wrongful termination of her employment by BADD in violation of public policy. She does not, however, allege that the reason for her discharge was either (1) the failure or refusal to violate a law in the course of employment or (2) the employee's exercise of a right conferred by well-established legislative enactment. See Grzyb v. Evans, 700 S.W.2d 399, 401-02 (Ky. 1985). In her Response, Plaintiff appears to concede that her Complaint is lacking because, for the first time, she avers that her discharge was contrary to ...