CARL E. SMITH, M.D., F.A.A.P., PLLC AND DR. CARL SMITH, INDIVIDUALLY APPELLANTS
JULIE LEWIS APPELLEE
FROM HARLAN CIRCUIT COURT HONORABLE KENT HENDRICKSON, JUDGE
ACTION NO. 16-CI-00052
FOR APPELLANTS: Sherif Guindi Knoxville, Tennessee
FOR APPELLEE: Cheryl U. Lewis Hyden, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND KRAMER, JUDGES.
Smith, individually ("Dr. Smith"), and his medical
practice, Carl E. Smith, M.D., F.A.A.P., PLLC
("PLLC"),  appeal a jury verdict and post-trial order
entered in Harlan Circuit Court in favor of Julie Lewis for
retaliatory hostile work environment, the tort of outrage,
front pay, and attorney fees and costs. For the reasons
discussed below, we affirm in part and reverse in part.
Smith is a pediatrician who opened his PLLC, a solo medical
practice, in 1994. He owns the PLLC and employs an office
manager and nurses.
is a registered nurse who started working for Dr. Smith and
the PLLC in 1997. Julie made no complaints of sexual
harassment until the few years leading up to her resignation
in July 2013. In those last years, Dr. Smith acted
inappropriately toward Julie, such as asking her to come to
his house when his wife was out of town, buying her gifts she
did not request or accept, and making sexual comments toward
her. Dr. Smith does not dispute many of Julie's
sued Dr. Smith and the PLLC alleging: (1) wrongful discharge;
(2) sexual harassment hostile work environment; (3) the tort
of outrage; (4) retaliation and retaliatory hostile work
environment; and (5) invasion of privacy.
before trial, Julie voluntarily dismissed her invasion of
privacy claim. Upon motion for summary judgment, the trial
court dismissed the wrongful discharge claim finding it
subsumed by Julie's Kentucky Civil Rights Act
lasted four days. At the close of Julie's proof and at
the close of all proof, Dr. Smith and the PLLC made motions
for directed verdict, which the trial court denied.
jury was instructed on the three remaining claims: (1) KRS
344.040 sexual harassment; (2) KRS 344.280 retaliatory
hostile work environment; and (3) the tort of outrage.
Finding the PLLC had less than eight employees, the jury did
not reach the sexual harassment claim. For the second claim,
the jury found Dr. Smith and the PLLC subjected Julie to a
retaliatory work environment and compensated her $50, 000 in
embarrassment and humiliation and $26, 474.43 in lost
wages. For the third claim, the jury found Dr.
Smith committed the tort of outrage and compensated Julie
$75, 000 for severe emotional distress and $0 in punitive
damages. The trial court entered judgment consistent with the
the verdict, the parties filed post-trial motions. Dr. Smith
and the PLLC filed a motion for judgment notwithstanding the
verdict ("JNOV"), and Julie filed a motion for
attorney fees and costs, as well as front pay. Subsequently,
the trial court denied Dr. Smith and the PLLC's JNOV and
entered a supplemental judgment awarding Julie $77, 200 in
attorney fees, $4, 917.70 in costs, and $16, 640 in front
pay. The total judgment was $250, 232.13. This appeal
Kentucky's Retaliation Statute Permits Individual
Smith and the PLLC argue Julie's retaliation claim should
have been dismissed because the PLLC had less than eight
employees. Dr. Smith and the PLLC urge this Court to
apply the "employer" definition applicable to KRS
344.040, the discrimination statute, to KRS 344.280, the
retaliation statute. When interpreting statutes, we use a
de novo standard of review. Wheeler &
Clevenger Oil Co., Inc. v. Washburn, 127 S.W.3d 609, 612
Smith and the PLLC confuse the requirements for a
discrimination claim with a retaliation
claim. While both claims are available under the KCRA, only
discrimination requires an employer to have eight or more
employees to be liable. The retaliation statute, on the other
hand, permits liability against a "person" under
To understand the distinction, we must begin with a
discussion of discrimination. Kentucky's Civil Rights Act,
codified in KRS Chapter 344, is the substantial equivalent of
the Federal Civil Rights Act. The basic purpose of KRS
Chapter 344 is "[t]o safeguard all individuals within
the state from discrimination because of familial status,
race, color, religion, national origin, sex, age forty (40)
and over, or because of the person's status as a
qualified individual with a disability…." KRS
344.020(1)(b). Here, Julie claimed her employer, the PLLC,
discriminated against her on the basis of sex, in violation
of KRS 344.040.
Julie to pursue a sex discrimination claim, however, she had
to prove that the PLLC qualified as an "employer."
"Employer" is defined as "a person who has
eight (8) or more employees within the state in each of
twenty (20) or more calendar weeks in the current or
preceding calendar year…." KRS 344.030(2).
the parties stipulated the PLLC had at least six employees,
Julie argued two more individuals, Brenda Back
(housekeeper/janitor) and Caleb Kohnle (who worked on the
floors), were "employees" of the PLLC. In their
verdict, the jury decided these individuals were not
employees. Thus, the jury correctly skipped the instruction
on discrimination, and Julie was unable to recover under this
Smith and the PLLC argued otherwise, but the trial court
correctly held Julie did not need to prove Dr. Smith and the
PLLC had eight or more employees for the jury to decide the
retaliation claim. Retaliation is not confined by the
"employer" definition. Rather, that statute permits
a "person" to be individually liable for
courts, as well as our federal brethren, have repeatedly
addressed whether an individual can be held liable under the
KCRA. The confusion supposedly lies in the fact that the KCRA
is based on Title VII of the Federal Civil Rights Act of
1974. Under Title VII, an individual cannot qualify as an
"employer" and, therefore, cannot be liable for
claims arising under Title VII. However, the Kentucky Supreme
Court and the Sixth Circuit have limited this general
proposition. Under the KCRA, an individual can be liable for
retaliation. See Morris v. Oldham County Fiscal
Court, 201 F.3d 784, 793-94 (6th Cir. 2000);
Brooks v. Lexington-Fayette Urban County Housing
Authority, 132 S.W.3d 790, 808 (Ky. 2004).
put, Kentucky's retaliation statute is not the same as
the federal retaliation statute. While Kentucky's Civil
Rights Act was based on the Federal Civil Rights Act (Title
VII), it does not mirror it. Morris, 201 F.3d at
794. Title VII forbids retaliation by an
"employer," while Kentucky law forbids retaliation
by a "person." 42 U.S.C. § 2000-e-3(a); KRS
retaliation provision of the KCRA states "it shall be an
unlawful practice for a person, or for two (2) or more
persons to . . . retaliate . . . ." KRS 344.280.
"Person" is defined in the KCRA to include
"one (1) or more individuals, labor organizations, joint
apprenticeship committees, partnerships, associations,
corporations . . . ." KRS 344.010(1). Accordingly, Dr.
Smith is a "person," as is the PLLC because a
corporation is included within the definition of a
"person." And, therefore, Kentucky permits
"persons," like Dr. Smith and the PLLC, to be held
liable for retaliation. Morris, 201 F.3d at 793-94.
Smith and the PLLC rely on two cases, Pucke v. J.A.
Stevens Mower Co., Inc., 237 S.W.3d 564 (Ky. App. 2007),
and Owens v. Ward, 2009 WL 482097 (E.D. Ky. February
25, 2009), to support their argument that retaliation can
only be found against an "employer" of eight or
more employees. However, both cases are distinguishable, as
Pucke, Cynthia Pucke sued her former employer, J.A.
Stevens, and its two sole shareholders, Ronald Garnett and
Dana Lambelz, for (1) gender discrimination; (2) sexual
harassment; (3) retaliation; (4) wrongful discharge; and (5)
intentional infliction of emotional distress. Shortly after
being hired by this small company with seven employees, Pucke
began a sexual relationship with Lambelz, who was her
immediate supervisor. Lambelz often threatened to fire Pucke
during turbulent times in their relationship, and Pucke knew
her future employment depended upon her continued
participation in the sexual relationship. After Lambelz ended
the relationship, he fired Pucke.
their summary judgment motion, defendants argued Pucke's
first three claims were based on alleged violation of KRS
Chapter 344 and should be dismissed because defendants did
not meet the definition of an "employer."
Defendants further argued in their motion that the remaining
common law claims should be dismissed as being preempted by
KRS Chapter 344. The trial court granted defendants'
motion, and Pucke appealed.
appeal, for unexplained reasons, Pucke conceded that
defendants did not meet the definition of
"employer" and, therefore, did not challenge the
dismissal of her discrimination, harassment, and retaliation
claims. Pucke only challenged the dismissal of the wrongful
discharge and IIED claims. While unclear, the court assumes
Pucke filed a notice of appeal regarding the dismissal of her
entire case, but later conceded the dismissal of her three
KCRA claims in the briefs. Accordingly, the only issues for
the court to decide that day were the dismissal of
Pucke's wrongful discharge and IIED claims. Without any
argument on appeal regarding the KCRA claims, this court
affirmed the uncontested dismissal of those claims.
Pucke case does not stand for the proposition that
no KCRA claims are available when an employer has less than
eight employees. That was not the issue before the
Pucke court, ...