Fogle v. Bluegrass Area Development District et al

Filing 11

MEMORANDUM OPINION & ORDER: GRANTING dfts Jennifer Compton & Bluegrass Workforce Investment Board's 3 Motion to Dismiss. Signed by Judge Joseph M. Hood on 3/30/15.(KJR)cc: COR Modified text on 3/30/2015 (KJR).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
TAYNA FOGLE,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BLUEGRASS AREA DEVELOPMENT
DISTRICT, et al.,
Defendants.

Civil Case No. 14-cv-203-JMH

MEMORANDUM OPINION AND ORDER

***
This matter is before the Court upon the Motion to Dismiss,
pursuant

to

Fed.

Jennifer

Compton

(“WIB”) [DE 3].

R.

Civ.

and

P.

12(b)(6),

Bluegrass

filed

Workforce

by

Defendants

Investment

Board

Plaintiff has filed a Response [DE 5], and

Defendants have filed a Reply in further support of their Motion
[DE

9].

Having

considered

Defendants’

Motion,

it

shall

be

granted for the reasons stated below.
I.
When

reviewing

“construe

the

plaintiff,

a

complaint

accept

its

Motion
in

to

the

Dismiss,

light

allegations

most

as

the

Court

favorable

true,

and

must

to

the

draw

all

reasonable inferences in favor of the plaintiff.” Directv, Inc.
v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). This presumption
of

truth,

Ashcroft

v.

however,
Iqbal,

“is

inapplicable

556

U.S.

662,

to
678

legal
(2009).

conclusions.”
It

is

also

insufficient

for

conclusions,”

a

or

complaint

to

provide

to

a

offer

mere

“formulaic

“labels

recitation

and

of

the

elements of a cause of action.” Bell Atlantic Corp. v. Twombly,
550

U.S.

dismiss,

544,
a

555

(2007).

complaint

must

Rather,
contain

“to

survive

sufficient

a

motion

factual

to

matter,

accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 570). Meeting this standard requires a plaintiff to plead
“factual content that allows the court to draw the reasonable
inference

that

the

defendant

is

liable

for

the

misconduct

alleged.” Id. And a complaint does not meet this standard if it
pleads facts that are “merely consistent with” a defendant’s
liability. Id.
II.
In order to evaluate the defendants’ Motion to Dismiss, the
Court

accepts

Complaint

to

the
be

following

true.

factual

Plaintiff

averments

Fogle

was

in

Plaintiff’s

employed

by

the

Bluegrass Area Development District (“BADD”) from December 15,
2009,

through

June

21,

“immediate supervisor.”

2013,

and

Defendant

Compton

was

[Compl., DE 1-1 at ¶¶ 6, 9.]

her

During

her employment, Fogle she received “good evaluations” of her
work from 2009-2013.

[Id. at ¶ 10.]

Fogle’s primary duties

were “refining and directing a program focused on re-entry into
the

community

for

individuals

about

to

be

released

from

correctional facilities, individuals with child support issues
and ex-offenders with barriers to success and successful reentry into their community.”

[Id. at ¶ 7.]

Prior to her employment by the BADD, in 2006, Fogle

had

designed and developed a program, then known as “A Vision for
You”

and

later

known

as

“Steppin

to

a

New

Beat.”

Fogle

“gratuitously allowed [BADD] to the use of her ‘Steppin to a New
Beat’

program

effectiveness
employer.”

during
in

her

achieving

the

so

as

desired

to

increase

outcomes

of

her
her

The program “assisted individuals with employment

and housing opportunities.”
In

employment

February

2012,

[Id. at ¶ 8.]
Plaintiff

“raised

questions

about

individuals who had enrolled in her ‘Steppin to a New Beat’
program who were not participating yet were still being counted
as active participants.”

[Id. at ¶ 11.]

Then, on January 15,

2013, “Defendant received a complaint concerning the Plaintiff’s
supervision of the housing program.”

[Id. at ¶ 12.]

She avers

that she was questioned about the complaint and was told that
“there

were

allegations

against

her

by

Defendant

David

Duttlinger, Executive Director of the Bluegrass Area Development
District on April 24, 2013,” which she denied.
14.]

[Id. at ¶¶ 13-

She claims that she was suspended with pay on April 24,

2013 “after Defendant received a complaint that the Plaintiff
was accepting rent for housing as part of the participation in

the ‘Steppin to a New Beat’ program.”

[Id. at ¶ 15.]

An

investigation was undertaken and she was informed on May 13,
2013, that the investigation was complete and that she could
return to work by Director Lenny Stolz.

[Id. at ¶¶ 16-17.]

However, the Board of Directors did not accept the decision to
allow her to return to work and her employment was terminated on
June 21, 2013.
Plaintiff

[Id. at ¶¶ 18-19.]
requested

a

grievance

hearing

to

contest

the

termination of her employment sometime between June 28 and July
1, 2013.

[Id. at ¶ 20.]

She avers that “Defendant” initially

alleged that she “had never requested a hearing” but eventually
the “request for a hearing was denied by the Defendant.”
at ¶ 21.]
hearing.

[Id.

She had neither a pre-termination or post-termination
[Id. at ¶ 22.]

Plaintiff filed her Complaint in Fayette Circuit Court on
April 23, 2014, and it was removed to this Court on May 23,
2014.

On

facts

set

forth,

in

Count

1

of

her

Complaint,

Plaintiff claims that she was wrongfully discharged in violation
of

public

policy

by

BADD

because

“she

reported

to

her

supervisors the questionable bookkeeping practices of Defendant
regarding individuals enrolled but not actively participating in
the

‘Steppin

to

a

New

Beat’

program”

and

that

“Defendant

retaliated against” her by “placing her on administrative leave
and ultimately terminating her [employment]” and “attempting to

delay

her

receipt

entitled.”

of

retirement

funds

to

which

she

was

[Id. at ¶¶ 25-27.]

Plaintiff next claims, in Count 2, that she was denied
procedural due process under the Fourteenth Amendment to the
United States Constitution and Section 2 of the Constitution of
the Commonwealth of Kentucky in the absence of pre- or posttermination procedure.

[Id. at 37-39.] She explains that, “[a]t

the time of her discharge, Plaintiff was told that she was being
terminated for removing files from her office” but, “[a]t no
time prior to [her] discharge were the allegation[s] of removing
files discussed with her by the Defendant.”

[Id. at ¶¶ 32-33.]

Further, she claims, “[s]ubsequent to Plaintiff’s dismissal, the
Plaintiff

requested

a

grievance

hearing

pursuant

to

the

Defendant’s personnel manual” which “request was denied by the
Defendant.”
employment

[Id. at 34-35.]
with

legitimate

“Defendant

expectation

She argues that as a result of her
as

of

a

public

continued

entity,”

she

employment”

had

and

a
“a

Constitutionally protected property interest in her employment
with the Defendant which could only b[e] taken pursuant to Due
Process.”

[Id. at 36-37.]

In Count 3, she claims that she was defamed on June 19 and
October 2013, when Defendants Duttlinger and Compton “caused to
be

published

and

disseminated

a

notice

to

approximately

300

persons that Plaintiff had misappropriated funds and compromised

personal

information”

and

that

Duttlinger

“disseminated”

the

publication “without an adequate investigation to determine the
truth” resulting in injury to her reputation in the community.
[Id. at ¶¶ 42-44.]

Finally, in Count 4, Plaintiff complains

that she “gratuitously allowed [BADD] the use of her ‘Steppin to
a New Beat’ program during her employment so as to increase her
effectiveness in achieving the desired outcomes of her employer”
and that BADD and Compton gave the program to WIB.
¶¶ 49-50.]

[Id. at

Because she “never conveyed any of her rights” to the

program nor “g[a]ve [n]or convey[ed] any license to utilize such
program to Defendants in any shape, form or fashion without her
direct participation and supervision” to Defendants and received
“no consideration” for their use of it despite their continued
use of the program, she claims that Defendants’ continued use of
the “Steppin to a New Beat” program, held out to the community
as their own, has caused her economic injury and damage to her
reputation in violation of the Fifth Amendment to the United
States Constitution and Section 13 of the Constitution of the
Commonwealth of Kentucky.
III.
In Count 1 of the Complaint, Plaintiff alleges wrongful
termination of her employment by BADD in violation of public
policy.

She does not, however, allege that the reason for her

discharge was either (1) the failure or refusal to violate a law

in the course of employment or (2) the employee’s exercise of a
right conferred by well-established legislative enactment.
Grzyb v. Evans, 700 S.W.2d 399, 401-02 (Ky. 1985).

See

In her

Response, Plaintiff appears to concede that her Complaint is
lacking

because,

for

the

first

time,

she

avers

that

her

discharge was contrary to the public policies evidenced by “the
Kentucky Whistleblower Act, KRS 61.101 . . . and the Kentucky
Civil Rights Act, KRS 344.280.”

[DE 7-1 at 3-4.]

This does not help her cause, for, as recently explained in
the Western District of Kentucky,
Where a statute or legislative enactment
declares an act unlawful and specifies the
civil remedy available to the aggrieved
party, the aggrieved party is bound by the
statutory remedy. See Grzyb, 700 S.W.2d at
401; see also Harvey, 672 F. Supp. at 976.
If the statute also provides structure for
pursuing the claim, the aggrieved party is
limited to that structure. Harvey v. I.T.W.,
Inc., 672 F. Supp. 973, 976 (W.D. Ky. 1987).
In other words, the same statute that could
provide the underpinnings of a wrongful
discharge claim cannot do so if it also
structures the remedy.

Wiseman v. Whayne Supply Company, 359 F. Supp. 2d 579, 591 (W.D.
Ky.

2004)

(emphasis

Whistleblower

Act

and

in

original).

the

Kentucky

Here,

both

Civil

Rights

the
Act

Kentucky
provide

remedies for any violation. See KRS 61.103; KRS 344.450.

It

follows that she may not seek relief for wrongful termination
under Grzyb, as alleged in her Complaint, because the statutes

which create the public policy on which she relies, per her
Response, specify the civil remedy for a violation.
S.W. 2d at 401.

Grzyb, 700

Her claim in Count I shall be dismissed.
IV.

Count 2 of the Complaint, in which Plaintiff alleges a
denial of due process, must be dismissed because Fogle does not
assert

facts

employment.
claim,

that

rise

to

a

property

interest

in

her

To succeed on her Fourteenth Amendment due process

Plaintiff

property

give

must

interest

in

first
her

establish

position

and

that

she

then,

enjoyed

that

she

a
was

“afforded the procedures to which government employees with a
property interest in their jobs are ordinarily entitled.” Kuhn
v. Washtenaw Cnty., 709 F.3d 612, 620 (6th Cir. 2013) (citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)).
Defendants’ motion to dismiss focuses solely on the first
prong,

whether

Plaintiff

had

a

property

interest

in

her

position. “Government employment amounts to a protected property
interest

when

the

employee

has

a

legitimate

expectation

of

continued employment.” Curby v. Archon, 216 F.3d 549, 553 (6th
Cir. 2000) (internal quotation and citation omitted). Whether
Plaintiff

has

expectation

of

a

protected
continued

property
employment

interest,
in

her

or

legitimate

position

is

determined by state law. Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 577 (1972). In Kentucky, it is presumed that

employment is at-will unless the parties “clearly stat[e] their
intention”

to

agree

otherwise.

Shah

v.

Am.

Synthetic

Rubber

Corp., 655 S.W.2d 489, 491-492 (Ky. 1983); see also McDonald v.
Webasto Roof Sys., Inc., 570 F. App'x 474, 477 (6th Cir. 2014)
(interpreting

Kentucky

law).

A

public

employee

claiming

a

property interest in their employment “must be able to point to
some statutory or contractual right conferred by the state which
supports a legitimate claim to continued employment.” Bailey v.
Floyd Cnty Bd. of Educ., 106 F.3d 135, 141 (6th Cir. 1997).
“Neither

mere

government

employment

nor

an

abstract

need

or

desire for continued employment will give rise to a property
interest.” Id. at 141 (citing Bd. of Regents of State Colleges
v. Roth, 408 U.S. 564, 577 (1972); Gregory v. Hunt, 24 F.3d 781,
787 n. 4 (6th Cir. 1994)).
Thus, Fogle must identify either identify a state statute
or a contractual right conferred by the government that supports
a legitimate claim to continued employment.

Id. at 141.

She

has identified no statute nor has she identified an agreement
with her government employer which manifests any intention to
condition termination only according to express terms, meaning
that her employment is considered “at will” and that she was
subject to dismissal at any time.

Id. (citing Shah, 655 S.W. 2d

at 491; Nork v. Fetter Printing Co., 738 S.W.2d 824, 826-27 (Ky.
Ct. App. 1987); Gryzb, 700 S.W.2d 399 (Ky. 1985)).

An “at will”

employee

cannot

effectively

interest in her job.

claim

a

protectable

property

Id.

According to Ms. Fogle:
Plaintiff is at the stage of litigation
unable to determine the precise basis for
her Constitutional rights to a pre or post
termination hearing in that the distinction
between
Defendants
Bluegrass
Area
Development
District
and
its
executive
director,
Mr.
David
Duttlinger
and
Defendants
Jennifer
Compton
and
the
Bluegrass Workforce Investment Board, both
jointly and severally due to the fact that
it appears the operational breakdown and
separation between these legal entities is
impermissibly vague and possibly unlawful.

[Response, D.E. No. 7-1, p. 4].

This is not enough.

Regardless

of whether BADD or the WIB employed Ms. Fogle, she can only
maintain her due process claim if she can identify a statute or
contract that created the right which she seeks to vindicate.
Fogle has not done so, and, her Complaint fails to state a due
process

claim

under

the

Fourteenth

Amendment

to

States Constitution. This claim shall be dismissed.

the

United

Because the

Kentucky Constitution provides the same protection as the United
States

Constitution,

and

the

court

finds

dismissal

warranted

under the latter, Plaintiff's claim under sections 2 of the
Kentucky Constitution will be dismissed as well for failure to
state a claim.

V.
Defendant

argues

that

Count

3

of

the

Complaint,

which

alleges defamation, fails to state a claim because Fogle does
not allege any element of a defamatory act – a publication,
falsity, or statements about Fogle - by WIB or Compton.
Count

3,

Fogle

claims

that

she

was

defamed

on

June

19

In
and

October 2013, when Defendants Duttlinger and Compton “caused to
be

published

and

disseminated

a

notice

to

approximately

300

persons that Plaintiff had misappropriated funds and compromised
personal

information”

and

that

Duttlinger

“disseminated”

the

publication “without an adequate investigation to determine the
truth” resulting in injury to her reputation in the community.
[Id. at ¶¶ 42-44.]
Defamation

under

Kentucky

law

requires

(1)

defamatory

language (2) about the plaintiff (3) which is published and (4)
which causes injury to reputation.

Stringer v. Wal-Mart Stores,

Inc., 151 S.W.3d 781, 793 (Ky. 2004) (citing Columbia Sussex
Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. Ct. App. 1981)).
Defamatory

language

is

that

which

“tends

so

to

harm

the

reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing
with him.”
Publication

Id. (citing Restatement (2d) of Torts § 559 (1997)).
occurs

when

the

language

in

question

is

“intentionally or negligently communicated to someone other than

the party defamed.”

Id. at 794 (citing Restatement (2d) of

Torts § 577 (1977)).
In support of their Motion, Defendants have attached a copy
of

a

letter

written

on

June

19,

2013,

and

addressed

to

approximately 268 “Steppin to a New Beat” program participants,
which discussed a disclosure of the personal information.1

See

Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430
(6th Cir. 2008) (“When a court is presented with a Rule 12(b)(6)
motion, it may consider . . . exhibits attached to defendant’s
motion

to

dismiss

so

long

as

they

are

referred

to

in

the

[c]omplaint and are central to the claims contained therein.”)
(citing
2001)).
the

Amini

v.

Oberlin

Co.,

259

493,

502

(6th

Cir.

This letter does not reference anyone by name, i.e.,

source

of

the

disclosure

of

identifiable way, let alone Fogle.
to

F.3d

determine

from

the

letter

personal

information

in

an

There is no way for a reader

itself

whether

the

disclosures

identified were made by Fogle or that the letter is about Fogle
in any way.

Thus, even if the letter is attributable to either

Compton or the WIB, Plaintiff’s claim fails because, as alleged,
she does not set forth sufficient allegations to state a basis
for her claim.
1

Defendants represent that this notice was the communication made to members
about the issue and to which Plaintiff refers in her Complaint.
Plaintiff
neither objects to this characterization nor makes any response to
Defendant’s argument about this issue in her Response.
Accordingly, the
Court presumes the notice to be the communication referenced in her
defamation claim.

VI.
Count 4 of the Complaint, which alleges a taking without
just compensation, fails to state a claim as she does not allege
facts sufficient to establish that she had a protected property
interest

in

the

“Steppin’

to

a

New

Beat”

program.

In

her

Response she clarifies that she is not alleging that she did not
reduce

the

elements

of

the

program

to

a

tangible

medium

of

expression and that she is asserting a claim for taking that is
based on the fact that “Steppin to a New Beat” is her “personal
property.” She argues that Defendants’ argument that she has
failed to allege sufficient facts to establish that “Steppin to
a New Beat” is a copyrighted work that she owns is “overly
narrow and wholly obfuscates” the taking of which she complains.
The Court disagrees.
Fogle’s claim is simple – she avers that “Steppin’ to a New
Beat”

is

subject

her
to

creation

the

and,

prohibition

public

use

without

Amend.

IV.

She

“just

does

thus,
against

her

governmental

compensation.”

not

however,

intellectual

set

U.S.
forth

property

taking

for

Constitution,
any

contract,

licensing agreement, or even an interest protected by copyright,
for example, which could serve as the basis for some sort of
cognizable

interest

in

the

intellectual

property

which

she

freely provided to her employer – whether the Court understands
that intellectual properties to be the ideas and methods behind

the program or some sort of fixed iteration of the program.
While

she

describes

how

she

used

this

program

of

her

own

creation in her role with WIB to provide services to individuals
who enrolled in it, she provides no example of steps that she
took to secure her interest in any intellectual property which
comprises the program.

Thus, while she avers that, after her

discharge, either or both WIB and BADD continued to operate
“Steppin’

to

a

New

Beat,”

the

Court

can

find

no

actionable

wrong.
While a copyright interest could serve as the basis for a
claim under the Takings Clause, she does not allege that she
fixed

her

ideas

for

expression”

and

that

employment

with

the

program

she

BADD,

did

both

into

so

of

a

“tangible

outside

which

establish a valid copyright interest.

the

would

medium

scope

be

of

required

of
her
to

Moreover, as explained by

Defendants copyright preemption generally bars Ms. Fogle from
asserting

other

claims

seeking

to

protect

any

intellectual

property rights in a work that is within the subject matter of
the copyright act, even if that work is not actually entitled to
copyright protection because it is not yet fixed in a tangible
medium of expression. U.S. ex rel. Berge v. Board of Trustees of
the University of Alabama, 104 F.3d 1453, 1463 (4th Cir. 1997)
(cited with approval in Wrench LLC v. Taco Bell Corp., 256 F.3d
446,

455

(6th

Cir.

2001)).

The

only

claims

not

barred

by

copyright

preemption

are

the

aforementioned

takings

clause

claim, or a state law claim that is “qualitatively different
from

a

copyright

infringement

claim,”

such

as

a

claim

for

wrongful retention of the physical object embodying the work
rather than the intellectual property itself. Cawley v. Swearer,
936 F.2d 572 (6th Cir. 1991) (table case) (per curiam); Berge,
104 F.3d at 1463.
Any
Fourteenth

alleged

takings

Amendment

of

clause
the

claim,

United

whether

States

under

Constitution

the
or

Section 13 of the Kentucky Constitution, fails for the reasons
set

forth

above,

and

Ms.

Fogle

has

neither

identified

nor

alleged any facts in support of any permitted state law claim.
Thus, Count 4 shall be dismissed.
VII.
Having considered Defendants’ Motion to Dismiss in light of
the arguments of the parties, it shall be granted.
Accordingly,

IT

IS

ORDERED

that

Dismiss [DE 3] is GRANTED.
This the 30th day of March, 2015.

Defendants’

Motion

to