United States District Court, E.D. Kentucky, Lexington
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE.
matter is before the Court on the Defendants' Notice of
Removal. [DE 1]. Myers requests the Court remand this case to
the Fayette Circuit Court, arguing this Court does not have
subject matter jurisdiction. [DE 9]. In particular, Myers
alleges that Defendant, William Stinson
(“Stinson”), is a Kentucky resident, like
herself. As a result, she argues that the lack of complete
diversity amongst the parties destroys diversity jurisdiction
over the instant action. [Id].
Defendants disagree. [DE 8]. They claim that Myers has no
colorable cause of action against Stinson and Myers
fraudulently joined Stinson solely to defeat diversity
jurisdiction. [Id.]. Thus, the Defendants request
the Court dismiss the claims against Stinson and retain
jurisdiction. [Id.]. After careful consideration,
the motion to remand is, and hereby shall be,
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1, 2018, Plaintiff, Susan Myers (“Myers”), began
working as a transport driver for Defendant, Red Classic
Transit, LLC (“Red Classic”), in Lexington,
Kentucky. [DE 1-1 at 2, PageID #10, ¶¶ 5-6]. Every
day Myers reported to the Lexington facility to receive her
orders for the day, and regularly transported freight for Red
Classic to facilities in Cincinnati, Ohio. [Id. at
2, PageID #10, ¶¶ 6-7].
was the only female transport driver at the Lexington office,
[Id. at 2, PageID #10, ¶ 9], and was one of the
only female drivers in the entire Red Classic organization.
[Id. at 2, PageID #10, ¶ 10]. Myers never met
any other female transport driver employed by Defendant, Coca
Cola Consolidated, Inc. (“Coca Cola”)
[Id. at 2, PageID #10, ¶ 11].
Myers drove trucks alone, she regularly interacted with other
employees of Red Classic and Coca Cola, whom she understood
to be her coworkers. [Id. at 2, PageID #10, ¶
8]. Myers alleges that on numerous occasions, her male
colleagues made offensive, uninvited, and unwanted verbal
comments about her breasts, buttocks, and physical
appearance. [Id. at 2-3, PageID #10-11, ¶¶
September 2018, Myers alleged she was embarrassed by such an
incident, and reported it the same day to her supervisor,
Defendant William Stinson (“Stinson”) over the
phone. [Id. at 3, PageID #11, ¶ 15]. Stinson
allegedly laughed at Myers's report, failed to
investigate the report, failed to report her allegations to
anyone up the chain of command, and ultimately failed to take
any steps to further address this behavior or to prevent
similar, future behavior. [DE 1-1 at 3, PageID #11,
Lexington facility, where Myers regularly worked, had a
single occupant, unisex restroom, which was equipped with
both a toilet and a urinal. [Id. at 3, PageID #11,
¶ 17]. The restroom had a door lock as well.
[Id.]. However, in December 2018, while Myers was
using the restroom, a male employee kicked open the door and
proceeded to urinate in the urinal in front Myers.
[Id.]. She protested, but the male employee rebuffed
her protests. [Id.].
once again, reported this embarrassing event to her
supervisor, Stinson. [Id. at 3, PageID #11, ¶
18]. However, Stinson allegedly, once again, failed to
investigate, report, or otherwise address the December 2018
restroom incident. [Id. at 3-4, PageID #11-12,
addition to the September and December incidents, Myers
further alleges that a Coca Cola dock worker verbally berated
her on three (3) separate occasions. [Id. at 4,
PageID #12, ¶ 20]. Myers believes she was singled out
for this verbal hostility due to her sex. [Id.]. In
any event, Myers reported all three of these upsetting and
embarrassing incidents to Stinson. [Id. at 4, PageID
#12, ¶ 21]. She also reported the third event to her
regional manager, Emily Goodman. [DE 1-1 at 4, PageID #12,
¶ 21]. Again, Myers alleges that Stinson and Goodman
failed to investigate, report, or correct the behavior
underlying these three incidents. [Id. at 4, PageID
#12, ¶ 22].
Stinson allegedly told Myers that the Defendants “were
not happy” about the “HR situation, ”
referencing the Myers's reports of sexual harassment and
hostile work environment. [Id. at 4, PageID #12,
¶ 23]. Then, during the final two (2) weeks of
Myers's employment, she was assigned fewer hours than
normal. [Id. at 4, PageID #12, ¶ 24]. Myers
alleges that this was retaliation for her reports of sexual
harassment and hostile work environment. [Id.].
January 17, 2019, Myers was called in to speak with Stinson
and an HR employee of Coca Cola. [Id. at 4, PageID
#12, ¶ 25; Id. at 5, PageID #13, ¶ 30].
There, Myers allegedly received a document notifying her that
her employer was terminating her for falsification of time in
violation of Defendants' code of conduct. [Id.].
In particular, she claims Defendants accused her of logging
two (2) hours of delay time between 5:00 a.m. and 7:00 a.m.
on July 14, 2019 due to ice, sleet, snow, fog, and traffic
issues occurring on July 14, 2019. [Id. at 4-5, PageID
#12-13, ¶ 26]. Myers contends that she discontinued her
use of the truck for those (2) two hours in the best
interests of the Defendants, after having observed dangerous
road conditions. [DE 1-1, PageID #5, ¶ 27]. Regardless,
she was terminated from her employment.
2, 2019, Myers filed this action in Fayette Circuit Court,
naming Red Classic, Coca-Cola, and William Stinson as
defendants. [DE 1-1 at 1-2, PageID #9-10]. In Count I, Myers
alleges that Red Classic and Coca Cola failed to address her
reports of sexual harassment and created a hostile work in
violation KRS 344.040. [DE 1-1 at 5-6, PageID #13-14,
¶¶ 33-37]. In Count II, Myers alleges that she made
Red Classic, Coca Cola, and Stinson aware that she suffered
sexual harassment and a hostile work environment by reporting
such incidents to her supervisors. [Id. at 6, PageID
#14, ¶¶ 38-39]. As a result of her reports, Myers
alleges that Red Classic, Coca Cola, and Stinson each
retaliated against her by, among other things, terminating
her employment on January 17, 2019, in violation of KRS
344.280. [Id. at 6-7, PageID #14-15, ¶¶
contends that she suffered a derogation of her personal
dignity, humiliation, embarrassment, and emotional distress
as well as lost wages and benefits. [Id. at 6-7,
PageID #14-15, ¶¶ 36-37, 42-43]. For these reasons,
Myers requests compensatory and ...