Grubbs v. Thermo Fisher Scientific
Filing
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MEMORANDUM OPINION & ORDER: Defendant's partial motion for judgment on the pleadings 9 is granted. Plaintiff's claims for negligent supervision/retention (Count IV) and punitive damages (Count V) are dismissed. Signed by Judge David L. Bunning on 4/23/2014.(TJZ)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 13-183-DLB-CJS
CHARLOTTE GRUBBS
vs.
PLAINTIFF
MEMORANDUM ORDER AND OPINION
THERMO FISHER SCIENTIFIC
DEFENDANT
*** *** *** ***
In this removed action, Plaintiff Charlotte Grubbs has sued her former employer,
Thermo Fisher Scientific, for violations of both Kentucky statutory and common law. She
alleges that Defendant’s agents and employees subjected her to a sexually-charged and
hostile work environment, and that Defendant retaliated against her, all in violation of the
Kentucky Civil Rights Act. She also alleges that Defendant negligently supervised and
retained the perpetrator of the sexual harassment. Finally, she brings a separate cause
of action for punitive damages.
Defendant has moved for partial judgment on the pleadings (Doc. # 9). Defendant
argues that Kentucky law does not allow an employee to recover against her employer for
negligent supervision/retention. Additionally, Defendant contends that it is entitled to
judgment on the punitive damages claim because it is not a stand-alone claim under
Kentucky law, and punitive damages are not otherwise recoverable for Plaintiff’s
substantive claims. Defendant’s motion has been fully briefed (Docs. # 11, 14), and is ripe
for review. As explained more fully herein, the Court agrees with both of Defendant’s
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arguments and will, therefore, grant Defendant’s motion.
I.
Standard of Review
“For purposes of a motion for judgment on the pleadings, all well-pled material
allegations of the pleadings of the opposing party must be taken as true, and the motion
may be granted only if the moving party is nevertheless entitled to judgment.” JPMorgan
Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citation and
quotation marks omitted). A motion brought pursuant to Rule 12(c) is appropriately granted
“when no material issue of fact exists and the party making the motion is entitled to
judgment as a matter of law. Id. at 582.
II.
Factual and Procedural Background
Plaintiff began working for Defendant in June 2001 as a picker and chemical packer.
She was directly supervised by Daniel Mockbee. During the course of her employment,
Mockbee allegedly made sexually degrading comments about Plaintiff and other females
during work hours at Defendant’s Florence, Kentucky work site.1 Plaintiff made repeated
complaints to Human Resources about Mockbee’s behavior, but nothing was done.
Instead, Mockbee’s conduct only intensified and became more frequent.
In February 2012, Mockbee gave Plaintiff the first negative performance review she
had received in her 12 years with the company. Mockbee also awarded Plaintiff “only” a
two (2) percent raise. However, Mockbee awarded each of Plaintiff’s male co-workers a
more substantial raise.
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The details of Mockbee’s distasteful comments and conduct are not relevant to the Court’s
consideration of the pending motion and will not be repeated here.
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In March 2012, Plaintiff made a last-ditch effot to have Defendant take action. She
informed Defendant’s corporate Human Resources department that she could not return
to work if the company did not put an end to Mockbee’s harassment. Plaintiff was assured
that the company would address her concerns if she came back to work. Plaintiff agreed
and returned to work on March 12, 2012. A few days later, Plaintiff informed the plant
manager that she would like to submit her resignation because she felt the company failed
to take corrective action as she had been promised. Thereafter, she submitted a letter of
resignation giving Defendant two weeks notice. The plant manager accepted the letter and
told her to leave immediately.
As a result of the foregoing, Plaintiff filed suit in Kenton Circuit Court alleging
violations of Kentucky’s Civil Rights Act and negligent supervision/retention. She seeks
compensatory damages for “loss of income, benefits and other valuable job rights, as well
as emotional distress and mental anxiety” (Doc. # 1-1 at 7), as well as punitive damages
for grossly negligent, intentional, wanton or reckless behavior. This suit was removed to
Federal District Court on October 7, 2013.
III.
Analysis
A.
Negligent Supervision/Retention
Plaintiff claims that Defendant negligently supervised and retained Mockbee as a
supervisor. The parties dispute whether this tort is recognized by Kentucky law and, more
importantly, whether the tort applies to the facts of this case. Although Kentucky does
recognize negligent supervision and retention as a tort, it is not applicable to the facts of
this case.
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In Turner v. Pendennis Club, the Kentucky Court of Appeals held that “Kentucky has
indeed recognized and acknowledged the existence of claims of negligent training and
supervision.” 19 S.W.3d 117, 121 (Ky. App. 2000). The tort imposes liability on an
employer who negligently supervises its employee. See Smith v. Isaacs, 777 S.W.2d 912,
914-15 Ky. 1989); McDonald’s Corp. v. Ogburn, 309 S.W.d 274, 291 (Ky. App. 2009). To
succeed on a negligent supervision/retention claim, the plaintiff must establish that (1) the
employer knew or had reason to know of the risk that the employee created, (2) the
employee injured the plaintiff, and (3) the supervision and/or retention of the employee
proximately caused the injury. Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169
S.W.3d 840, 844 (Ky. 2005); Ogborn, 309 S.W.3d at 291(citing Booker v. GTE.net LLC,
350 F.3d 515, 517 (6th Cir. 2003) (interpreting Kentucky law)).
There is no doubt that
Plaintiff has pled facts to support each of these elements, yet Plaintiff’s claim still suffers
a fatal flaw: an employee cannot sue her employer for negligent supervision or retention.
The late Senior Judge Karl Forester has addressed this very issue as a matter of
Kentucky law. In Henn v. Pinnacle Publishing, LLC, No. 12-307-KSF, 2012 WL 6096670,
at *3 (E.D. Ky. Dec. 7, 2012), the court held as follows:
While Kentucky courts have recognized the tort of negligent hiring and
retention, those cases involved suits by third parties against an employer
whose employee caused harm to someone they did not employ. Henn has
cited no Kentucky cases which allow an employee to sue his own employer
under a negligence theory for an alleged hostile work environment created
by a coworker or supervisor. As a result, Henn’s negligence claim against
the defendants will be dismissed.
While this issue has yet to be addressed by a Kentucky state court in a written decision,
other Federal courts have followed the holding of Henn. Montell v. Diversified Clinical
Servs. Inc., – F. Supp. 2d –, 2013 WL 4521014, at *13 (E.D. Ky. 2013); See also Harris v.
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Burger King Corp., – F. Supp. 2d –, 2014 WL 68089, at *11 (W.D. Ky. 2014) (“It appears
that this tort has only been applied in cases in which a third party sues an employer whose
employee committed a tort.”). This Court will do so as well.
Plaintiff attempts to escape the holding of Henn by citing jury instructions given in
a Kenton Circuit Court case as an example of a Kentucky court allowing an employee to
bring a negligent supervision/retention claim against her employer. See Jennifier Compian,
et al v. Commonwealth Orthopaedic, 06-CI-2295; (Docs. # 11-1, 11-2). However, these
jury instructions do not carry the precedential value that Plaintiff believes they deserve.
“A federal court must accord the same precedential value to a state-court decision
as it would be accorded by that state’s courts.” Mid-Century Ins. Co. v. Fish, 749 F. Supp.
2d 657, 666 (W.D. Mich. 2010). In Kentucky, “[a] trial court’s decision has ‘no precedential
value.’” Bell v. Com., Cabinet for Health and Human Servs., – S.W. 3d –, 2014 WL 712666,
at *7 (Ky. 2014) (quoting Courier-Journal v. Jones, 895 S.W.2d 6, 7 (Ky. App. 1995)). Trial
court decisions can have an effect outside of their originating case only under the doctrines
of res judicata and collateral estoppel, neither of which are at issue in this case. Id. Thus,
the Kenton Circuit Court jury instructions do not establish that Plaintiff’s negligent
supervision/retention claim may proceed against her former employer.
Even if a Kentucky trial court’s decision carried precedential value, the jury
instructions tendered by Plaintiff still carry no weight. Kentucky Rules of Civil Procedure
76.28(4)(c) prohibits litigants from citing or using unpublished “opinions” as biding
precedent. Jury instructions are a far cry from even an unpublished opinion. They give
no indication that the parties actually litigated, and the court ultimately determined the issue
as a matter of law. As such, Plaintiff has failed to demonstrate that a Kentucky court has
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reached a conclusion opposite of the holding reached in Henn. Having failed to do so, the
Court is convinced that Henn controls and ultimately dooms Plaintiff’s negligent
supervision/retention claim.
B.
Punitive Damages Claim
In Count 5 of Plaintiff’s Complaint, Plaintiff asserts a claim for punitive damages.
This “count” suffers two fatal flaws. First, “a claim for punitive damages is not a separate
cause of action, but a remedy potentially available for another cause of action.” Dalton v.
Animas Corp., 913 F. Supp. 2d 370, 378 (W.D. Ky. 2012). Second, Plaintiff has not pled
a viable cause of action for which punitive damages are recoverable. Her only remaining
claims each arise under the Kentucky Civil Rights Act. While the state of the law in
Kentucky has changed over time, the Kentucky Supreme Court’s most recent decision on
point held that punitive damages are not available under the Kentucky Civil Rights Act.
Childers Oil Co., Inc. v. Adkins, 256 S.W.3d 19, 27 (Ky. 2008). Thus, Plaintiff’s claim for
punitive damages – whether it is a separate cause of action or a prayer for relief – is
dismissed.
Plaintiff rebuts this conclusion by arguing that she has pled claims for which punitive
damages are available. She agrees that punitive damages are not available under the
Kentucky Civil Rights Act, but argues that such damages are available under the Federal
Civil Rights Act. Plaintiff is correct as a matter of law that punitive damages are available
under Title VII of the Civil Rights Act. West v. Tyson Foods, Inc., 374 F. App’x 624 (6th Cir.
2010). However, Plaintiff forgets that she has not alleged a claim for a violation of the
federal Act; all of her claims are for violations of the Kentucky Civil Rights Act, and punitive
damages are not available under that Act.
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IV.
Conclusion
Accordingly, for the reasons stated herein, IT IS ORDERED that Defendant’s partial
motion for judgment on the pleadings (Doc. # 9) is hereby granted. Plaintiff’s claims for
negligent supervision/retention (Count IV) and punitive damages (Count V) are hereby
dismissed.
This 23rd day of April, 2014.
G:\DATA\Opinions\Covington\2013\13-183 MOO granting mtn for partial judgment on pleadings.wpd
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