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Cooke v. Bevin

United States District Court, E.D. Kentucky, Central Division, Frankfort

July 16, 2019

MATTHEW G. BEVIN, et al., Defendants.


          Danny C. Reeves United States District Judge.

         Plaintiff Charissa Cooke asserts that she was terminated from her position with the Kentucky Labor Cabinet in Ashland, Kentucky, for voicing opinions and joining with others to support the public education system and pension funding for teachers and other state employees. She alleges claims of: (i) First Amendment retaliation; (ii) supervisory liability; (iii) violations of the Kentucky Constitution; (iv) violations of the Kentucky Revised Statutes; and (v) wrongful termination in violation of public policy. Defendant Matthew Bevin, the Governor of the Commonwealth of Kentucky, has moved to dismiss to claims asserted against him. [Record No. 1');">1');">1');">12] Governor Bevin's motion is well-taken and will be granted. As a result, he will be dismissed as a party to this action.


         Cooke previously worked as a paralegal for a workers' compensation administrative law judge with the Kentucky Labor Cabinet. Cooke joined the group KY 1');">1');">1');">120 United (“KY 1');">1');">1');">120”) around March of 201');">1');">1');">18. KY 1');">1');">1');">120 is described as an “informal organization of individuals concerned about public education, teachers, and public employees.” [Record No. 1');">1');">1');">1, p. 5] Cooke claims that she “quickly became one of the primary contacts of KY 1');">1');">1');">120 in Carter County.” [Id.] A pension reform bill was passed by the General Assembly during the 201');">1');">1');">18 legislative session, and Cooke was an “outspoken critic” of the bill. [Id. at 4-5.]

         Using compensatory time off, Cooke traveled to the Kentucky Capitol in Frankfort, Kentucky, on March 28, 201');">1');">1');">19, to oppose legislation that she claimed “threaten[ed] funding for public schools and state employee pension programs.” [Id. at 5-6.] She asserts that on this visit to the Capitol, security staff scanned her drivers' license into a computer system and directed her to a station where visitors' photos were taken. [Id. at 6.] Cooke also contends that, on prior visits to the Capitol, security required visitors to mark a sign-in sheet and show photo identification. [Id.] Cooke alleges that, while being photographed, an officer asked questions that made her feel uneasy. [Id.] Cooke indicated that she was a state employee during this alleged questioning; however, she claims that she did not respond when asked to identify her department. [Id.] Cooke was not singled-out for questioning and observed other individuals being questioned as they attempted to enter the Capitol. [Id. at 7.]

         Two unfamiliar women visited Cooke's office in Ashland several days later. [Id.] Cooke contends that these women were Anya Carnes and Leslie Tindall, two employees of the Kentucky Labor Cabinet who work in Frankfort. [Id. at 7-8.] Carnes terminated Cooke's employment, stating that her “services were no longer needed.” [Id. at 7.] At some point during the conversation, Carnes took a phone call. [Id.] And while Carnes was participating on the call, Cooke allegedly asked Tindall if “she was being fired because of her involvement with KY 1');">1');">1');">120.” Cooke claims that Tindall “did not verbally answer, but made a gesture suggesting the answer was yes.” [Id.] There is no description of the gesture allegedly made by Tindall.

         Cooke subsequently sued Carnes and the Secretary of the Kentucky Labor Cabinet, David Dickerson, who “upon information and belief” is Carnes' supervisor. [Id. at 4, 8.] Governor Bevin appointed Dickerson as Secretary of Labor. [Id. at 8.] Cooke sued Governor Bevin alleging that the governor was involved in her termination. However, the only details provided regarding Governor Bevin's involvement in Cooke's termination is “upon information and belief, Carnes was acting at the direction and behest of Secretary Dickerson and Governor Bevin in terminating Cooke.” [Id. at 8.] Additionally, Cooke states that “Secretary Dickerson reports directly to Governor Bevin [and] is empowered under KRS 336.030 to make personnel decisions within the Labor Cabinet “with the approval of the Governor.” [Id.] Cooke claims that “it is reasonable to infer that [her] termination was initiated by Secretary Dickerson with the direct authorization and approval of Governor Bevin.” [Id. at 9.]


         A motion to dismiss under Rule 1');">1');">1');">12(b)(6) of the Federal Rules of Civil Procedure requires the Court to determine whether the complaint alleges “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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plausibility standard is met “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). However, under the plausibility standard, “[t]he mere fact that someone believes something to be true does not create a plausible inference that it is true.” In re Darvocet, Darvon, & Propoyphene Products Liab. Litig., 1');">1');">1');">17');">756 F.3d 91');">1');">1');">17, 931');">1');">1');">1 (6th Cir. 201');">1');">1');">14).

         While a complaint need not contain “detailed factual allegations” to survive a motion to dismiss, “a plaintiff's obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A plaintiff is not required to plead facts showing that the defendant is likely responsible for the harm alleged, but she must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. The plaintiff must present “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555).

         Finally, the federal pleading standard applies to state law claims that are heard in federal court. Simmerman v. Ace Bayou Corp., 1');">1');">1');">16');">304 F.R.D. 51');">1');">1');">16, 51');">1');">1');">18 (E.D. Ky. Jan. 1');">1');">1');">16, 201');">1');">1');">15); see also Wilkey v. Hull, 366 Fed.Appx. 634, 637 (6th Cir. 201');">1');">1');">10).


         Cooke must plausibly allege facts indicating that Governor Bevin was personally involved in her termination to survive the governor's motion to dismiss. See, e.g., West v. Atkins, 487 U.S. 42, 48 (1');">1');">1');">1988) (“[t]o state a claim under § 1');">1');">1');">1983, a plaintiff . . . must show that the alleged deprivation was committed by a person acting under color of state law”); see also Rowan Cty. v. Sloas, 1');">1');">1');">1 S.W.3d 469');">201');">1');">1');">1 S.W.3d 469, 476 (Ky. 2006) (Kentucky law requires a “causally related violation of a constitutional, statutory, or other clearly established right of the complaint”). Further, “[l]iability will not lie absent active unconstitutional behavior; failure to act or passive behavior is insufficient.” King v. Zamiara, 680 F.3d 686, 706 (6th Cir. 201');">1');">1');">12).

         And here, all of Cooke's claims against Governor Bevin rely on two main assertions. First, she contends that, “[u]pon information and belief, Carnes was acting at the direction and behest of Secretary Dickerson and Governor Bevin in terminating Cooke.” [Record No. 1');">1');">1');">1, p. 8] Next, Cooke asserts that Governor Bevin had to approve her termination under KRS 336.030. [Id.] Cooke's claim of supervisory liability relies on an additional contention that Governor Bevin knew or should have known that Secretary Dickerson was retaliating against her for exercising her ...

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