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Percell v. Commonwealth, Department of Military Affairs

United States District Court, W.D. Kentucky, Louisville

December 12, 2017



          Thomas B. Russell, Senior Judge

         This matter is before the Court on Defendant Commonwealth of Kentucky Department of Military Affairs's (“Commonwealth”) Motion to Dismiss in Lieu of an Answer, [R. 18], pursuant to Federal Rule of Procedure 12(b)(6). Plaintiff Andrea Percell responded, [R. 19], and Commonwealth replied, [R. 20]. Fully briefed, this matter is ripe for adjudication. For the reasons stated herein, Commonwealth's Motion to Dismiss, [R. 18], is DENIED.


         The factual allegations as set out in the First Amended Complaint, [R. 17 (First Amended Complaint)], and taken as true are as follows. See Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)). Andrea Percell is an African American female who began working as an Administrative Secretary at Bluegrass ChalleNGe Academy (“the Academy”) on or around June 1999. [R. 17 at 2.] In hindsight, Percell states that during her nearly seventeen years of employment at the Academy she never felt that her job was in jeopardy. [Id. at 3.]

         Allegedly, around 2000, Percell applied for the Administrative Specialist III position-a job that requires a bachelor's degree. [Id.] Percell possessed the obligatory bachelor's degree for the position. [Id.] Thereafter, Percell claims the position was offered to Vicky Harl, a white female who did not have the necessary degree or skills. [Id.] Over the years, as Harl proved to be incapable, Percell alleges that she was assigned Harl's job duties. [Id.] ¶ 2011, Percell states that she was assigned all of Harl's job duties except “answering calls, sorting mail, processing cadet applications, and inputting data, ” none of which were actually the responsibilities of the Administrative Specialist III. [Id.] Percell recalls that since she was doing Harl's job in addition to her own, she requested to be advanced into a higher pay grade. [Id.] Allegedly, she did not receive it. [Id. at 4, ¶ 15.]

         Around March 2013, another white female, Dottie Heffelfinger, was hired as Administrative Assistant, a Grade 8 paying position. [Id. at 3.] Percell claims that Heffelfinger was promoted to Administrative Specialist III, a Grade 12 paying position, approximately one to two months later, even though she did not have the requisite college degree. [Id.] Furthermore, Percell alleges that the position had not been posted in order to alert Percell that she could apply, which is required by job posting and filling procedures. [Id.] Percell states that she then requested to have the opportunity to advance to a higher pay grade, emphasizing that she was performing more job functions than Harl and Heffelfinger. [Id.] Despite this objection, in January 2014, Percell claims that Heffelfinger's job duties were given to Percell and Heffelfinger moved to an office near the Director. [Id. at 4.] Percell recalls that she complained to her Deputy Director that she, once again, was assigned another employee's job duties without a pay increase or an opportunity to advance to a higher pay grade position. [Id.] However, she was allegedly told “that is the way the Director wanted it.” [Id.]

         On or around June 2015, Percell alleges that she, Heffelfinger, and Harl were informed by the Director and Deputy Director at the time that Heffelfinger was to be promoted to the position of Budget Analyst, a Grade 5 paying position that required a bachelor's or graduate degree. [Id.] Percell states that Heffelfinger had neither. [Id.] At this time, Percell claims that she was again transferred additional job duties without a change in pay, despite her requests to be raised a pay grade. [Id.] Percell recalls that when she brought up the fact that she previously indicated interest in that position and the position was not posted, as required, she was told to “get over it.” [Id.]

         On or around March 30, 2016, Percell alleges that Commandant Michael Major, who had no supervisory authority over Percell, emailed Deputy Director Hampton that he felt Percell was “insubordinate” and that “she has a problem with those she ‘falls under.'” [Id.] According to Percell, Hampton went on in the email to state that “something had to be done about her and that it took all he had ‘to hold back.'” [Id.] Allegedly, Hampton replied that they would discuss it when he returned to the office and he was ready to let Percell “see what her resume is worth.” [Id.]

         According to Percell, on or around April 4, 2016, she verbally reported to the Academy Equal Employment Officer Martin Jones her concern that the Academy failed to adhere to the proper hiring procedures. [Id. at 4-5.] She recalls specifically stating at that time: “1) she had been forced to take on additional duties of a departing employee and she possessed the skills, experience and qualifications to be placed into a higher pay grade but has been denied same by Bluegrass ChalleNGe Academy; and 2) white females and males are given preferential treatment by being placed into positions with higher pay grades than African-American females, like herself, even though such white females and males did not possess the requisite skills and/or qualifications for such grades.” [Id. at 5] Percell recalls that Jones told her she had 365 days to prepare a written complaint, and she replied that she would do so over the next few months. [Id.]

         Percell states that on or about early June of 2016, Percell's husband, Danny Percell, experienced health issues and was hospitalized for approximately nine days. [Id.] Around the week of June 6, 2016, Percell recalls that she attended a meeting with Deputy Director Hampton where she verbally protested that she should be advanced to the same pay grade as the other white, female administrative employees. [Id.] Around that same time, Percell states that she used two and a half of her sick and vacation days to care for her husband. [Id.] While she was at home with her husband, they were informed by medical providers that he would need a lung transplant, which would be performed at a facility in Pittsburgh, Pennsylvania. [Id.]

         On or around Saturday, June 11, 2016, Percell went in to her office to catch up on work after being out for a couple days. [ 6.] While at the Academy, Percell alleges that she informed Administrative Branch Manager Michael Major and Cadre Supervisor Dilbert Richardson that she would need to take some time off due to her husband's lung transplant procedure in Pittsburgh and that she would discuss it with them further on Monday, June 13, 2016, when Director Charles Jones would be present. [Id.]

         On or about Monday, June 13, 2016, at 7:40 A.M., Director Charles Jones emailed Administrative Branch Manager of Personnel and Payroll Crystal Simpson that he intended to terminate Percell for failure to perform duties and listed the reasons for his decision therein. [Id.] Percell alleges that the reasons listed by Director Charles Jones include “minor occurrences that took place one (1) year prior, occurrences that were out of the control of Percell, and items that were never even brought to the attention of Percell.” [Id.] Percell also notes that EEO Officer Martin Jones is the nephew of the Academy Director Charles Jones. [Id.]

         On or about June 14, 2016, Percell recalls that Director Jones handed her a letter signed by Department of Military Affairs Executive Director Michael A. Jones stating that she was terminated as an employee at the Academy. [Id.] Percell claims that no further explanation was given to her. [Id.]


         A 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). In order to survive a motion to dismiss under Rule 12(b)(6), a party must “plead enough ‘factual matter' to raise a ‘plausible' inference of wrongdoing.” 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim becomes plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). When considering a Rule 12(b)(6) motion to dismiss, the court must presume all of the factual allegations in the complaint are true and draw all reasonable inferences in favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983)). “The court need not, however, accept unwarranted factual inferences.” Id. (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). Should the well-pleaded facts support no “more than the mere possibility of misconduct, ” then dismissal is warranted. Iqbal, 556 U.S at 679. The Court may grant a motion to dismiss “only if, after drawing all reasonable inferences from the allegations in the complaint in favor of the plaintiff, the complaint still fails to allege a plausible theory of relief.” Garceau v. City of Flint, 572 F. App'x. 369, 371 (6th Cir. 2014) (citing Iqbal, 556 U.S. at 677-79).


         Commonwealth moves to dismiss Percell's complaint under two lines of reasoning: First, Commonwealth argues that Percell fails to allege the elements necessary for a prima facie case of discrimination under the Kentucky Civil Rights Act, KRS 344.040 et seq. (“KCRA”). [See R. 18-1 at 5-9 (Memorandum in Support of Motion to Dismiss).] Secondly, Commonwealth asserts that Percell fails to allege facts necessary to plead a claim of violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. [Id. at 9-13.] Despite these arguments, the Court finds that, at this stage in the proceedings, Percell has “plead enough ‘factual matter' to raise a ‘plausible' inference of wrongdoing.” 16630 Southfield Ltd. P'ship, 727 F.3d at 504.

         I. Claims Under KRS 344.040 et seq.

         In the Complaint, Percell claims that Commonwealth violated KRS 344.280 by “retaliating and/or discriminating against Percell because she opposed a practice declared unlawful by KRS 344.040, et seq.” [R. 17 at 6, ¶ 28.] Commonwealth argues that this is in essence a retaliation claim, not a discrimination claim, and Percell has failed to state a claim under KRS 344.280 and failed to allege damages against Commonwealth. [See R. 18-1 at 5-8.] Furthermore, Commonwealth adds that this retaliation claim is barred by the statute of limitations. [See id. at 8-9.]

         A. Stating a Prima Facie ...

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