United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT
Logan Hickey alleges that after General Electric failed to
accommodate his disability and terminated his employment, it
falsely told Kentucky authorities that he had voluntarily
quit. Because of this misrepresentation, Hickey claims, he
was deprived of unemployment benefits for some period of
time. Ultimately, the Commission reversed its initial
determination, and awarded Hickey full benefits. He brought
suit against GE, seeking redress for the harm he suffered due
to being temporarily deprived of his unemployment benefits,
as well as punitive damages.
Kentucky law, an employer commits a crime when it
“knowingly makes a false statement or representation .
. . to prevent or reduce the payment of [unemployment]
benefits to any worker entitled thereto.” KRS
341.990(6)(a). GE now moves to dismiss Count III of
Hickey's complaint, arguing that he may not bring a civil
claim based upon GE's alleged violation of that statute,
KRS 341.990(6)(a). [DN 9; DN 9-1 at 1-8.] Further, GE
contends that even if Hickey's third claim is cognizable,
he has nothing to recover, because he eventually received the
unemployment benefits to which he was entitled. [DN 9-1 at
8-12.] Hickey responded, [DN 10-1], and GE replied, [DN 11.]
This matter is ripe for adjudication. Because GE's motion
necessarily turns upon a novel issue of state law, the Court
will certify a question to the Kentucky Supreme Court
pursuant to Kentucky Rule of Civil Procedure (CR) 76.37.
Facts and Procedural History
For a time, Plaintiff Logan Hickey was employed as a
first-shift production line worker at General Electric's
Appliance Park in Louisville, Kentucky. [DN 1-2 at 4.]
Several months after he was hired, GE sought to move Hickey
to second shift. [Id.] Hickey suffers from
attention-deficit/hyperactivity disorder (ADHD), a disability
that “interferes with his ability to regulate his
sleep, focus his attention on tasks, and keep track of basic
tasks with full mental cognition.” [Id.]
Although Hickey uses medicine to manage his ADHD, he found it
difficult “to maintain full consciousness and alertness
on the production line” during GE's second shift.
[Id.] After consulting with his doctor, Hickey
requested through GE's human resources department that he
be placed back on first shift. [Id. at 4-5.] GE
refused and placed him on unpaid leave. [Id. at
5-6.] Following negotiations between Hickey, his legal
counsel, and GE's medical department, Hickey alleges that
GE gave him a choice: he could either change his medication
regimen and resume working second shift or resign.
[Id. at 6.] Eventually, Hickey received a letter
from GE on October 6, 2015, informing him that his employment
was being terminated, effective on that date. [Id.
at 6-7.] Hickey's union later informed him that GE told
the union Hickey's termination date was October 13.
[Id. at 7.] By this time, Hickey had been off work
for a month. [Id.]
he was let go, Hickey sought unemployment benefits.
[Id.] GE opposed Hickey's application for
benefits, telling the Kentucky's Division of Unemployment
Insurance that Hickey had voluntarily quit. [Id.]
Based upon that representation, Hickey's claim for
unemployment was initially denied. [Id.] Only after
successive appeals to the Division referee and the Kentucky
Unemployment Insurance Commission (KUIC), respectively, did
Hickey receive the benefits to which he was entitled.
[Id. at 7, 12.]
then brought the instant suit in Jefferson County, Kentucky
Circuit Court. In the first two claims of his tripartite
complaint, Hickey alleges that GE violated both the Kentucky
Civil Rights Act (KCRA) and the Americans with Disabilities
Act (ADA) by failing to accommodate his disability and by
retaliating against him when he sought an accommodation.
See [id. at 4-10.] In his third claim,
styled “Wrongful Opposition to Unemployment Insurance
Benefits, ” Hickey asserts that GE violated KRS
341.990(6)(a) by informing Kentucky authorities that he
voluntarily resigned, when he was in fact terminated.
[Id. at 11 (emphasis removed).] That statute makes
it a crime to “knowingly make a false statement or
representation . . . to prevent or reduce the payment of
benefits to any worker entitled thereto.” KRS
341.990(6)(a). Hickey further claims that as a member of the
class of persons KRS 341.990(6)(a) was designed to protect,
he is entitled to recover from GE “such damages as he
sustained by reason of [GE's] violation” under KRS
446.070, Kentucky's negligence per se statute. [DN 1-2 at
removed Hickey's suit to federal court. See [DN
1.] Jurisdiction is proper because this Court has original
subject-matter jurisdiction over Hickey's federal claims
and supplemental jurisdiction over his state-law claims, and
this district and division embraces the place where his state
suit was filed. 28 U.S.C. §§ 1331, 1367(a), 1441.
GE now asks this Court to dismiss Hickey's third claim,
arguing that Kentucky law does not recognize a private right
of action under KRS 341.990(6)(a), and even if it did, Hickey
has nothing left to recover. See [DN 9; DN 9-1.]
Hickey responded, [DN 10-1], and GE replied, [DN 11.]
case presents a matter of apparent first impression. No court
interpreting Kentucky law has decided whether a plaintiff may
use KRS 446.070 as a vehicle to maintain a standalone claim
for his former employer's violation of KRS 341.990(6)(a),
nor is the answer to that question readily apparent based
upon the statutory scheme and Kentucky precedent. Because
Hickey's claim involves a novel issue of state law, this
Court could in its discretion decline to exercise
supplemental jurisdiction over Count III of Hickey's
complaint. See 28 U.S.C. § 1367(c). However, to
avoid piecemeal litigation and to obtain a definitive answer
that will provide guidance in similar cases, the Court will
instead certify a question of law to the Kentucky Supreme
eight decades ago, the Kentucky General Assembly enacted the
state's first Unemployment Compensation Act “to
provide benefits for . . . those employees who have been
forced to leave their employment because of forces beyond
their control.” Ky. Unemployment Ins. Comm'n v.
Kroehler Mfg. Co., 352 S.W.2d 212, 214 (Ky. 1961).
“In order to receive [unemployment] benefits, the
worker must prove (or the employer, conversely, disprove)
that he or she was involuntarily separated from employment
without good cause on the employer's part. Bd. of
Ed.of Covington v. Gray, 806 S.W.2d 400, 402 (Ky. Ct.
App. 1991). To that end, Kentucky's unemployment scheme
criminalizes the making of certain false statements.
Pertinent to this case,
[a]ny person who knowingly makes a false statement or
representation, or who knowingly fails to disclose a material
fact to prevent or reduce the payment of benefits to any
worker entitled thereto, or to avoid becoming or remaining
subject to this chapter, or to avoid or reduce any payment
required of an employing unit under this chapter shall be
guilty of a Class A misdemeanor unless the liability avoided
or attempted to be avoided is one hundred dollars ($100) or
more, in which case he shall be guilty of a Class D felony.
KRS 341.990(6)(a). The statutory scheme does not provide for
a private right of action based upon the violation of the
false statement provision.
support his third claim against GE, Hickey relies upon KRS
446.070.Commonly known as Kentucky's negligence per se
statute, KRS 446.070 provides that “[a] person injured
by the violation of any statute may recover from the offender
such damages as he sustained by reason of the violation,
although a penalty or forfeiture is imposed for such
violation.” The Kentucky Supreme Court has held that
“the statute applies when the alleged offender violates
a statute and the plaintiff comes within the class of persons
indented to be protected by the statute.” St. Luke
Hosp., Inc. v. Straub, 354 S.W.3d 529, 534 (Ky. 2011)
(citing Davidson v. Am. Freightways, Inc., 25 S.W.3d
94, 99-100 (Ky. 2000)). Further, “[t]he statute must
have been specifically intended to prevent the type of
occurrence that took place, and the violation must have been
a substantial factor in causing the result.” Hargis
v. Baize, 168 S.W.3d 36, 46 (Ky. 2005) (citing
Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999)). KRS
446.070 will only apply, however, where “the statute is
penal in nature, or where by its terms the statute does not
prescribe the remedy for its violation.” Grzyb v.
Evans, 700 S.W.2d 399, 401 (Ky. ...