United States District Court, E.D. Kentucky, Central Division, Lexington
GREGORY A. WALTER, Plaintiff,
GUITAR CENTER STORES, INC. and KIRK HAMILTON, Defendants.
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge
matter is before the Court upon Defendant Guitar Center
Stores, Inc. and Kirk Hamilton's Partial Motion to
Dismiss Plaintiff's Complaint [DE 6], as well as
Plaintiff Gregory A. Walter's Motion to Amend Complaint
[DE 9]. The Motions are fully briefed and ripe for the
Court's review [DE 7, 8, 10, 11]. For the reasons stated
herein, Defendants' Motion is hereby GRANTED and
Plaintiff's Motion is hereby GRANTED IN PART and DENIED
FACTUAL AND PROCEDURAL BACKGROUND
worked as a Store Manager at Guitar Center's Lexington,
Kentucky location from October 2009 to March 2016. [DE 1-1,
p. 5, ¶ 7-9]. During this time, he suffered from a
medical condition that caused serious pain in his knees and
feet. [Id. at p. 5-6, ¶ 11]. As a result, he
took a leave of absence under the Family Medical Leave Act
(“FMLA”) from September 1, 2015 to November 15,
2015, and again from January 1, 2016 to February 23, 2016.
[Id. at p. 7, ¶ 20]. On February 17, 2016, he
submitted a Reasonable Accommodation Request to Guitar
Center's Human Resources Administrator Nancy Ponce.
[Id. at p. 6, ¶ 13].
days later, Walter returned to work. [Id.]. Walter
alleges that his supervisor, Eric Garrett, made disparaging
comments about his disability. [Id. at p. 7, ¶
16-17]. He indicates that his “superior, ” Kirk
Hamilton, made similar statements about his condition.
[Id.]. When Walter complained to Dennis Haffeman,
Guitar Center's Vice President of Human Resources,
Haffeman told him to “look in the mirror.”
[Id. at p. 7, ¶ 18].
Walter returned to work, Guitar Center had a vacancy for a
Sales and Training Manager. [Id. at p. 6, ¶
14]. Because the position was unfilled, Walter was required
to stand without breaks for the entire workday.
[Id.]. He requested that Guitar Center hire an
appropriate individual to resolve this problem.
[Id.]. On February 25, 2016, Walter notified Garrett
and Hamilton that his tasks were exacerbating his condition.
[Id. at p. 8, ¶ 23]. Hamilton made more
disparaging comments about Walter's condition and
suggested that Walter resign if he could not walk the store.
same day, Walter contacted Ponce to notify her that he still
had not received approval for his Reasonable Accommodation
Request. [Id. at p. 6, ¶ 13]. He submitted
physician's notes to support his Request and informed her
that he needed to discuss “unfavorable conditions here
in the store” with her. [Id. at p. 7, ¶
22]. She explained that Human Resources Field Representative
Kenric Knecht would be handling the Request. [Id.].
However, Knecht never contacted Walter. [Id.].
February 26, 2016, Walter again e-mailed Ponce about his
situation and explained that he was not receiving
accommodation for his condition. [Id. at p. 8,
¶ 24]. Walter's supervisor, Garrett, was terminated
and replaced by Ryan Flannery that same day. [Id. at
p. 8, ¶ 25]. On February 29, 2016, Walter received a
letter from Ponce indicating that the following accommodation
had been approved, effective that same day: “when
patient has a flare up, patient should be allowed to sit down
and rest his feet at least fifteen to thirty minutes every
two hours.” [Id. at p. 6-7, ¶ 15].
However, the accommodation was not implemented. [Id.
at p. 8, ¶ 26].
March 4, 2016, Walter tendered his resignation to Flannery
and informed him that he was resigning due to the lack of
accommodation. [Id. at p. 8, ¶ 28]. Flannery
claimed to be unaware that Walter was entitled to any
accommodations. [Id.]. Although Walter planned to
work two weeks after submitting his resignation, he was
unable to come to work due to a flare up on March 7, 2016.
[Id. at p. 9, ¶ 29]. When he informed Flannery
that he could not work that day, Flannery responded that
Walter did not need to finish up the two-week period because
Guitar Center had already hired a replacement. [Id.
at p. 9, ¶ 30]. Guitar Center then sent Walter a release
from liability and informed him that he would not receive his
final paycheck if he refused to sign it. [Id. at p.
9, ¶ 32]. Walter notified the Kentucky Department of
Labor about the issue, prompting Guitar Center to send him
his final paycheck. [Id. at p. 9, ¶ 33].
November 21, 2016, Walter filed suit against Guitar Center
and Hamilton in Fayette County Circuit Court, asserting the
following claims: (1) discrimination in violation of the
Kentucky Civil Rights Act (“KCRA”); (2)
retaliation in violation of the KCRA; (3) outrageous conduct;
and (4) negligent hiring and retention against Guitar Center
only. [DE 1-1]. Guitar Center and Hamilton removed the case
to federal court on December 16, 2016 on the basis of
diversity jurisdiction. [DE 1]. They then filed the instant
Motion to Dismiss. [DE 6]. Once that Motion was fully
briefed, Walter submitted a Motion to Amend, in which he
seeks to add further detail to his retaliation claim and
assert additional claims for disability discrimination under
the Americans with Disabilities Act (“ADA”),
constructive discharge under Kentucky law, and retaliation
under the FMLA.
Guitar Center and Hamilton's Motion to
Standard of Review
Complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This statement should
include “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) (quoting Twombly v. Bell Atl. Corp., 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that a defendant is
liable for the misconduct alleged.” Id.
“[A] formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555.
Counts I, III, and IV
move to dismiss Count I against Hamilton and Count III
against Hamilton and Guitar Center. They also seek dismissal
of Count IV against Guitar Center. Walter makes no attempt to
salvage these claims in his Response. The Court has reviewed
the Complaint, as well as relevant case law, and finds that
partial dismissal is appropriate for the reasons stated by
Defendants. Because Walter does not provide any opposing
arguments, the Court will be brief in its analysis of these
Claim against Hamilton for Discrimination in Violation of the
KCRA “provide[s] for execution within the state of the
policies embodied in the [federal civil rights
statutes].” Ky. Rev. Stat. Ann. § 344.020(1)(a).
Accordingly, “Kentucky courts have always construed
violations under the KCRA consistent with federal
construction of similar violations under the federal civil
rights laws.” Ky. Dep't of Corr. v.
McCullough, 123 S.W.3d 130, 138 (Ky. 2003).
the KCRA, it is unlawful for an employer:
[t]o fail or refuse to hire, or to discharge any individual,
or otherwise to discriminate against an individual with
respect to compensation, terms, conditions, or privileges of
employment, because of the individual's race, color,
religion, national origin, sex, age forty (40) and over,
because the person is a qualified individual with a
disability or because the individual is a smoker or
nonsmoker, as long as the person complies with any workplace
policy concerning smoking.
Ky. Rev. Stat. Ann. § 344.040(1)(a); compare 42
U.S.C. § 2000e-2(a).
United States Court of Appeals for the Sixth Circuit has held
that an employee or supervisor who does not otherwise qualify
as an “employer, ” as that term is defined in
Title VII, cannot be subject to individual liability for
Title VII violations. Wathen v. Gen. Elec. Co., 115
F.3d 400, 404 (6th Cir. 1997); see also 42 U.S.C.
§ 2000e(b) (defining an “employer” as
“a person engaged in an industry affecting commerce who
has fifteen or more employees … and any agent of such
person”). The Sixth Circuit further stated that its
ruling was “equally applicable to KRS Chapter
344” because its provisions mirror those set forth in
Title VII. Id. at 405.
Defendants are quick to point out, there are no allegations
in the Complaint to suggest that Hamilton qualifies as an
“employer” under Title VII and, by extension, the
KCRA. Walter simply refers to Hamilton as his
“superior” throughout the Complaint. [DE 1-1, p.
7-8, ¶ 17-23]. As the above-cited case law indicates,
Hamilton cannot be considered an “employer”
simply because he has supervisory authority over
Walter. Thus, Hamilton cannot be held individually
liable for disability discrimination in violation of the
KCRA. Dismissal of Count I against Hamilton is appropriate.
Claim of Outrage against ...