Henn, Jr. v. Pinnacle Publishing, LLC et al
OPINION & ORDER: Dft's 6 MOTION to Dismiss for failure to state a claim is GRANTED and this matter is DISMISSED and STRICKEN from the active docket. Signed by Judge Karl S. Forester on 12/7/2012. (KLB) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 12-307-KSF
TED HENN, JR.
OPINION & ORDER
PINNACLE PUBLISHING, LLC and
This matter is before the Court upon motion of the defendants, Pinnacle Publishing, LLC and
Anthony Hoslet, to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in
the alternative, to transfer this matter to the United States District Court for the District of
Minnesota, pursuant to 28 U.S.C. § 1404. The plaintiff, Ted Henn, Jr., opposes the defendants’
motion. For the reasons set forth below, the defendants’ motion to dismiss will be granted.
FACTUAL AND PROCEDURAL BACKGROUND
Henn, a resident of Lexington, Kentucky, filed this civil action in Fayette Circuit Court on
September 11, 2012 [DE #1]. In his complaint, Henn asserts wrongful termination, hostile work
environment, and retaliation claims based on the Kentucky Civil Rights Act, KRS 344 et seq., as
well as a negligence claim under state law. Henn’s claims arise out of his employment by the
defendant, Pinnacle Publishing, LLC (“Pinnacle”), where he was supervised by the defendant,
Anthony Hoslet (“Hoslet”). Pinnacle is a Minnesota company that sells ads in the Yellow Pages.
Its principal place of business is located in Bemidiji, Minnesota, and Hoslet is a resident of
Wisconsin. Based on diversity jurisdiction, the action was subsequently removed to this Court
pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1446 [DE #1].
The defendants have filed their motion to dismiss pursuant to Rule 12(b)(6), or in the
alternative, to transfer this action to the United States District Court for the District of Minnesota
[DE #6]. In support of their motion, the defendants argue that Henn has failed to state a claim under
the Kentucky Civil Rights Act because he fails to even allege that the actions he claims to have been
subjected to at Pinnacle were in any way because of his membership in a protected class. They also
argue that Hoslet does not qualify as an employer under the Kentucky Civil Rights Act, and thus, he
cannot be held liable for his conduct under the Kentucky Civil Rights Act. Finally, the defendants
argue that Henn’s negligence claims should be dismissed because Kentucky law does not support
such a claim and because the Kentucky Worker’s Compensation Act provides the exclusive remedy
for his purported work-related injury.
MOTION TO DISMISS STANDARD
The standard for ruling on a motion to dismiss is that a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007), abrogating Conley v. Gibson, 355 U.S. 41 (1957).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level.
Id. at 555 (internal citations and quotation marks omitted).
In ruling upon a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6), all of a plaintiff’s allegations are presumed true, and the complaint is construed in the light
most favorable to the plaintiff. Hill v. Blue Cross and Blue Shield of Michigan, 409 F.3d 710, 716
(6th Cir. 2005). A district court may not grant a Fed. R. Civ. P. 12(b)(6) motion because it does not
believe the complaint's factual allegations. Wright v. MetroHealth Medical Center, 58 F.3d 1130,
1138 (6th Cir.1995). However, “[c]onclusory allegations or legal conclusions masquerading as
factual allegations will not suffice.” Bishop v. Lucent Technologies, Inc., No. 07-3435 (6th Cir.
3/25/08) (citing Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)).
The Court first turns to Henn’s claims based on the Kentucky Civil Rights Act (“KCRA”).
The KCRA prohibits employers from discriminating against any individual “because of the
individual’s race, color, religion, national origin, sex, age forty (40) and over, because the individual
is a qualified individual with a disability, or because the individual is a smoker or nonsmoker.” KRS
344.040. The KCRA provides for execution of the policies embodied in Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e. See Palmer v. International Association of Machinists and
Aerospace Workers, 882 S.W.2d 117, 119 (Ky. 1994). Thus, in order to establish a violation of the
KCRA, a plaintiff must prove the same elements as required for a prima facie case of discrimination
under Title VII. Kentucky courts look to federal decisions interpreting the federal act, and these
cases are “most persuasive, if not controlling, in interpreting the Kentucky statute.” White v. Rainbo
Baking Co., 765 S.W.2d 26, 28 (Ky.App. 1988); Commission on Human Rights v. Commonwealth,
586 S.W.2d 270, 271 (Ky.Ap. 1979).
The United States Supreme Court has established a framework for analyzing employment
discrimination cases where the plaintiff’s case is based on circumstantial evidence in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff has the initial
burden of proving a prima facie case of discrimination by a preponderance of the evidence. Id. at
802. In order to establish a prima facie case of discrimination, the plaintiff must first establish that
he is a member of a protected class. Henn has made no such allegation. While he alleges that he
was treated differently than other employees, he has not alleged that he suffered any adverse
employment action as a result of his membership in any protected class. Absent some causal link
between his membership in a protected class and the actions to which he was allegedly subjected,
his claims under the KCRA must be dismissed. See Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Henn’s KCRA claim against Hoslet is also subject to dismissal for an additional reason. In
Wathen v. General Electric Co., 115 F.3d 400, 405 (6th Cir. 1997), the Sixth Circuit held that “an
individual employee/supervisor, who does not otherwise qualify as an ‘employer,’ may not be held
personally liable under Title VII..” Moreover, in Palmer v. International Association of Machinists,
the Kentucky Supreme Court found that two individuals could not be liable for discrimination
because they did not qualify as employers as defined in the KCRA. See KRS 344.030(2). Based on
these cases, Hoslet cannot be liable to Henn for any civil rights violations under the KCRA.
Finally, Henn’s claim for negligence warrants dismissal. Henn claims that Pinnacle
negligently hired and retained Hoslet, causing him to be subjected to extreme humiliation,
embarrassment, and loss of personal dignity. He further alleges that he was wrongfully supervised
by Hoslet. Essentially, Henn is camouflaging his untenable hostile work environment claim as a
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. See Stalbosky v. Belew, 205 F.3d 890 (6th Cir. 2000); Oakley v. Flor-Shin, Inc., 964
S.W.2d 438, 442 (Ky.App.1998). 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
Accordingly, the Court, being fully and sufficiently advised, hereby ORDERS that the
defendants’ motion to dismiss [DE #6] is GRANTED and this matter is DISMISSED and
STRICKEN from the active docket.
This December 7, 2012.
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