Walter v. Guitar Center Stores, Inc. et al

Filing 12

MEMORANDUM OPINION & ORDER: 1. Defendants Guitar Center Stores, Inc. and Kirk Hamilton's Motion for Partial Dismissal 6 is GRANTED as to Count 1 against Dft Hamilton, Counts III & IV against both Dfts and the portion of Count II that purports to state a conspiracy claim against both Dfts; 2. Plaintiff Walter's Motion to for leave to Amend 9 is GRANTED as to Count II against each Dft, as well as Count VI, and DENIED as to proposed Count IV & Count V; 3. Plaintiff Walter shall FILE a full Amended complaint consistent with this Court's Memorandum Opinion and Order within 14 days of entry of this order; 4. Pursuant to F.R.C.P. 16 and 26: (a) Within 21 days from date of this Order, parties by counsel, shall meet to discuss t he nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for disclosures and to develop a proposed discovery plan, (b) within 10 days after the meeting the parties shall file a joint status report. Signed by Judge Joseph M. Hood on 7/31/2017.(KM)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
GREGORY A. WALTER,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.

GUITAR CENTER STORES, INC.
and KIRK HAMILTON,
Defendants.

Action No. 5:16-cv-459-JMH

MEMORANDUM OPINION
AND ORDER

****
I. INTRODUCTION

This matter is before the Court upon Defendant Guitar Center

Stores,

Inc.

and

Kirk

Hamilton’s

Partial

Motion

to

Dismiss

Plaintiff’s Complaint [DE 6], as well as Plaintiff Gregory A.
Walter’s Motion to Amend Complaint [DE 9].

The Motions are fully

briefed and ripe for the Court’s review [DE 7, 8, 10, 11].

For

the reasons stated herein, Defendants’ Motion is hereby GRANTED
and Plaintiff’s Motion is hereby GRANTED IN PART and DENIED IN
PART.
II. FACTUAL AND PROCEDURAL BACKGROUND
Walter worked as a Store Manager at Guitar Center’s Lexington,
Kentucky location from October 2009 to March 2016.
¶ 7-9].

During this time, he suffered from a medical condition

that caused serious pain in his knees and feet.
1

[DE 1-1, p. 5,

[Id. at p. 5-6,

¶ 11].

As a result, he took a leave of absence under the Family

Medical Leave Act (“FMLA”) from September 1, 2015 to November 15,
2015, and again from January 1, 2016 to February 23, 2016.
at p. 7, ¶ 20].
Accommodation

On February 17, 2016, he submitted a Reasonable
Request

to

Administrator Nancy Ponce.

Guitar

Center’s

Human

that

his

supervisor,

Eric

comments about his disability.
indicates

that

his

Haffeman,

Guitar

Garrett,

[Id.].
made

Walter

disparaging

[Id. at p. 7, ¶ 16-17].

“superior,”

statements about his condition.
Dennis

Resources

[Id. at p. 6, ¶ 13].

Six days later, Walter returned to work.
alleges

[Id.

Kirk

[Id.].

Center’s

Hamilton,

made

He

similar

When Walter complained to

Vice

President

Resources, Haffeman told him to “look in the mirror.”

of

Human

[Id. at p.

7, ¶ 18].
When Walter returned to work, Guitar Center had a vacancy for
a Sales and Training Manager.

[Id. at p. 6, ¶ 14].

Because the

position was unfilled, Walter was required to stand without breaks
for the entire workday.

[Id.].

He requested that Guitar Center

hire an appropriate individual to resolve this problem.

[Id.].

On February 25, 2016, Walter notified Garrett and Hamilton that
his tasks were exacerbating his condition.

[Id. at p. 8, ¶ 23].

Hamilton made more disparaging comments about Walter’s condition

2

and suggested that Walter resign if he could not walk the store.
[Id.].
That same day, Walter contacted Ponce to notify her that he
still had not received approval for his Reasonable Accommodation
Request.

[Id. at p. 6, ¶ 13].

He submitted physician’s notes to

support his Request and informed her that he needed to discuss
“unfavorable conditions here in the store” with her.
7, ¶ 22].

[Id. at p.

She explained that Human Resources Field Representative

Kenric Knecht would be handling the Request.
Knecht never contacted Walter.

[Id.].

However,

[Id.].

On February 26, 2016, Walter again e-mailed Ponce about his
situation and explained that he was not receiving accommodation
for his condition.

[Id. at p. 8, ¶ 24].

Walter’s supervisor,

Garrett, was terminated and replaced by Ryan Flannery that same
day.

[Id. at p. 8, ¶ 25].

On February 29, 2016, Walter received

a letter from Ponce indicating that the following accommodation
had been approved, effective that same day: “when patient has a
flare up, patient should be allowed to sit down and rest his feet
at least fifteen to thirty minutes every two hours.”
6-7, ¶ 15].

[Id. at p.

However, the accommodation was not implemented.

[Id.

at p. 8, ¶ 26].
On March 4, 2016, Walter tendered his resignation to Flannery
and

informed

him

that

he

was

resigning
3

due

to

the

lack

of

accommodation.

[Id. at p. 8, ¶ 28].

Flannery claimed to be

unaware that Walter was entitled to any accommodations.

[Id.].

Although Walter planned to work two weeks after submitting his
resignation, he was unable to come to work due to a flare up on
March 7, 2016.

[Id. at p. 9, ¶ 29].

When he informed Flannery

that he could not work that day, Flannery responded that Walter
did not need to finish up the two-week period because Guitar Center
had already hired a replacement.

[Id. at p. 9, ¶ 30].

Guitar

Center then sent Walter a release from liability and informed him
that he would not receive his final paycheck if he refused to sign
it.

[Id. at p. 9, ¶ 32].

Walter notified the Kentucky Department

of Labor about the issue, prompting Guitar Center to send him his
final paycheck.

[Id. at p. 9, ¶ 33].

On November 21, 2016, Walter filed suit against Guitar Center
and

Hamilton

in

Fayette

County

Circuit

Court,

asserting

the

following claims: (1) discrimination in violation of the Kentucky
Civil Rights Act (“KCRA”); (2) retaliation in violation of the
KCRA;

(3)

outrageous

conduct;

and

retention against Guitar Center only.

(4)

negligent

[DE 1-1].

hiring

and

Guitar Center

and Hamilton removed the case to federal court on December 16,
2016 on the basis of diversity jurisdiction.
filed the instant Motion to Dismiss.

[DE 6].

[DE 1].

They then

Once that Motion

was fully briefed, Walter submitted a Motion to Amend, in which he

4

seeks to add further detail to his retaliation claim and assert
additional

claims

for

disability

discrimination

under

the

Americans with Disabilities Act (“ADA”), constructive discharge
under Kentucky law, and retaliation under the FMLA.
III. ANALYSIS
A.

Guitar Center and Hamilton’s Motion to Dismiss
1. Standard of Review
A Complaint must contain a “short and plain statement of the

claim showing that the pleader is entitled to relief.”

Fed. R.

Civ. P. 8(a)(2). This statement should include “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 Twombly v. Bell Atl. Corp., 550 U.S. 544, 570
(2007)).

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable
inference that a defendant is liable for the misconduct alleged.”
Id. “[A] formulaic recitation of the elements of a cause of action
will not do.”
2.

Twombly, 550 U.S. at 555.

Counts I, III, and IV

Defendants move to dismiss Count I against Hamilton and Count
III against Hamilton and Guitar Center.
of Count IV against Guitar Center.
5

They also seek dismissal

Walter makes no attempt to

salvage these claims in his Response.

The Court has reviewed the

Complaint, as well as relevant case law, and finds that partial
dismissal is appropriate for the reasons stated by Defendants.
Because Walter does not provide any opposing arguments, the Court
will be brief in its analysis of these claims.
a.

Claim against Hamilton for Discrimination in
Violation of the KCRA

The KCRA “provide[s] for execution within the state of the
policies embodied in the [federal civil rights statutes].”
Rev. Stat. Ann. § 344.020(1)(a).

Ky.

Accordingly, “Kentucky courts

have always construed violations under the KCRA consistent with
federal construction of similar violations under the federal civil
rights laws.”

Ky. Dep’t of Corr. v. McCullough, 123 S.W.3d 130,

138 (Ky. 2003).
Under the KCRA, it is unlawful for an employer:
[t]o fail or refuse to hire, or to discharge any
individual, or otherwise to discriminate against an
individual
with
respect
to
compensation,
terms,
conditions, or privileges of employment, because of the
individual’s race, color, religion, national origin,
sex, age forty (40) and over, because the person is a
qualified individual with a disability or because the
individual is a smoker or nonsmoker, as long as the
person complies with any workplace policy concerning
smoking.
Ky. Rev. Stat. Ann. § 344.040(1)(a); compare 42 U.S.C. § 2000e2(a).

6

The United States Court of Appeals for the Sixth Circuit has
held that an employee or supervisor who does not otherwise qualify
as an “employer,” as that term is defined in Title VII, cannot be
subject to individual liability for Title VII violations.

Wathen

v. Gen. Elec. Co., 115 F.3d 400, 404 (6th Cir. 1997); see also 42
U.S.C. § 2000e(b) (defining an “employer” as “a person engaged in
an industry affecting commerce who has fifteen or more employees
… and any agent of such person”). The Sixth Circuit further stated
that its ruling was “equally applicable to KRS Chapter 344” because
its provisions mirror those set forth in Title VII.

Id. at 405.

As Defendants are quick to point out, there are no allegations
in

the

Complaint

to

suggest

that

Hamilton

qualifies

“employer” under Title VII and, by extension, the KCRA.
simply

refers

Complaint.

to

Hamilton

as

his

“superior”

[DE 1-1, p. 7-8, ¶ 17-23].

as

an

Walter

throughout

the

As the above-cited case

law indicates, Hamilton cannot be considered an “employer” simply
because he has supervisory authority over Walter.1

Thus, Hamilton

cannot be held individually liable for disability discrimination

1
 As Defendants are quick to point out, Walter refers to other individuals
as “supervisors,” but repeatedly characterizes Hamilton as a “superior.”
Thus, it is not clear that Hamilton even had supervisory authority over
Walter.
Assuming arguendo that Hamilton did qualify as Walter’s
supervisor, Walter’s claim nevertheless fails for the reasons stated
above.
7

in violation of the KCRA.

Dismissal of Count I against Hamilton

is appropriate.
b.

Claim of Outrage against Hamilton and Guitar Center

The tort of outrage, also known as intentional infliction of
emotional distress (“IIED”), consists of the following elements:
(1) the wrongdoer’s conduct is intentional or reckless; (2) the
wrongdoer’s conduct is “outrageous and intolerable in that it
offends

against

generally

accepted

standards

of

decency

or

morality”; (3) there is a causal connection between the wrongdoer’s
conduct and the emotional distress; and (4) the emotional distress
is severe.

Wiseman v. Whayne Supply Co., 359 F. Supp. 2d 579, 592

(W.D. Ky. 2004) (citing Gilbert v. Barkes, 987 S.W.2d 772, 777
(Ky. 1999)).
“petty

The tort of outrage does not provide redress for

insults,

unkind

words

and

minor

indignities”

or

behavior that is “cold, callous, and lacking sensitivity.”

even

Kroger

v. Willgruber, 920 S.W.2d 61 (Ky. 1996); Humana of Ky., Inc. v.
Seitz, 796 S.W.2d 1 (Ky. 1990).
“[W]hen a plaintiff prosecutes a statutory discrimination
claim

under

KRS

IIED/outrageous

Chapter

conduct,

344

and

the

former

a

common
preempts

law
the

claim

of

latter.”

Wiseman, 359 F. Supp. 2d at 592 (citing Kroger Co. v. Buckley, 113
S.W.3d

644

(Ky.

Ct.

App.

2003)).

“The

reasoning

for

this

preemption is that Chapter 344 extends protection to personal

8

dignity and freedom from humiliation of individuals, interpreted
as

allowing

indignity.”

claims

for

damages

for

humiliation

and

personal

Id. (citing McNeal v. Armour and Co., 660 S.W.2d 957,

958 (Ky. Ct. App. 1983)).
In

this

case,

Walter

asserts

a

claim

for

disability

discrimination in violation of the KCRA against Hamilton and Guitar
Center.

[DE 1-1, p. 9-10, ¶ 34-44]. He also pleads a claim for

outrageous conduct against both Defendants.

[Id. at p. 11-12, ¶

49-56].

For the reasons explained above, Walter’s outrage claim

against

Guitar

Center

is

automatically

discrimination claim against that entity.

subsumed

by

his

KCRA

This is not the case

for Walter’s outrage claim against Hamilton because the Court has
already dismissed the disability discrimination claim against him
that

would

have

subsumed

the

outrage

claim.

Nevertheless,

dismissal of the outrage claim against Hamilton is appropriate
because Walter has failed to allege that his behavior was so
outrageous as to offend generally accepted standards of decency.
Brewer v. Hilliard, 15 S.W.3d 1, 6 (Ky. Ct. App. 1999). Hamilton’s
negative comments about Walter’s disability may rise to the level
of petty insults or callous behavior, but they are not so egregious
as to lead a member of the public to exclaim “Outrageous!”

9

Id.

c.

Negligent Hiring and Retention

“[T]he established law in this Commonwealth recognizes that
an employer can be held liable when its failure to exercise
ordinary

care

in

hiring

or

retaining

an

foreseeable risk of harm to a third person.”

employee

creates

a

Oakley v. Flor-Shin,

Inc., 964 S.W.2d 438, 442 (Ky. Ct. App. 1998).

To prevail on such

a claim, a plaintiff must demonstrate the following elements: “(1)
the employer knew or reasonably should have known that the employee
was unfit for the job for which he was employed, and (2) the
employee’s

placement

or

retention

at

that

unreasonable risk of harm to the plaintiff.”

job

created

an

Ten Broeck Dupont,

Inc. v. Brooks, 283 S.W.3d 705, 733 (Ky. 2009) (citing Oakley, 964
S.W.2d at 442).
Although no Kentucky state court has reached this issue,
federal courts sitting in Kentucky have indicated that an employee
cannot seek redress for the misdeeds of a fellow employee by suing
his or her employer for negligent hiring and retention.

See Henn

v. Pinnacle Publ’g, Inc., Civ. A. No. 12-307-KSF, 2012 WL 6096670,
at *3 (E.D. Ky. Dec. 7, 2012); Grubbs v. Thermo Fisher Sci., Civ.
A. No. 13-183-DLB-CJS, 2014 WL 1653761, at *2 (E.D. Ky. 2014);
Montell v. Diversified Clinical Servs., Inc., 969 F. Supp. 2d 798,
816 (E.D. Ky. 2013), reversed in part on other grounds by Montell
v. Diversified Clinical Servs., Inc., 757 F.3d 497 (6th Cir. 2014);
10

Gatlin v. Shoe Show, Inc., Civ. A. No. 3:14-cv-446-TBR, 2014 WL
3586498, at *5 (W.D. Ky. July 21, 2014).
This case law indicates that Walter, a former employee of
Guitar Center, cannot maintain an action against it for the
negligent hiring and retention of Hamilton and other employees who
allegedly

made

disparaging

comments

about

his

disability.2

However, even if Walter could bring such an action against Guitar
Center, his Complaint does not include any facts to suggest that
Guitar Center knew or reasonably should have known that Hamilton
and other employees were unfit for the job for which they were
employed.
3.

Dismissal of Count IV is therefore warranted.
Count II—Conspiracy to Retaliate

Defendants seek dismissal of Walter’s claim against Guitar
Center and Hamilton for conspiracy to retaliate in violation of
the KCRA.

Specifically, Defendants argue that Walter has failed

to state a conspiracy claim because Guitar Center and Hamilton are
part of the same entity and cannot conspire with one another.
Walter counters that this argument is based on a misinterpretation
of KRS § 344.280.

2
 The Court reminds Walter’s attorney that he asserted a negligent hiring
and retention claim against a plaintiff’s fellow employer for the
misdeeds of an employee in a prior proceeding. See TJX, Civ. A. No.
5:11-cv-319-JMH, 2012 WL 1565235, at *3 (E.D. Ky. May 2, 2012). The
Court dismissed that claim for the same reasons that dismissal is
appropriate here. Id.
11

“[A] conspiracy is a corrupt or unlawful combination or
agreement between two or more persons to do by concerted action an
unlawful act, or to do a lawful act by unlawful means.”
v. Goodman, 239 S.W.2d 97, 100 (Ky. 1951).

McDonald

Under Kentucky law,

“civil conspiracy is not a free-standing claim; rather, it merely
provides a theory under which a plaintiff may recover from multiple
defendants for an underlying tort.”
Buckram

Oak

Holdings,

N.V.,

No.

Stonestreet Farm, LLC v.
2008-CA-002389-MR,

2010

WL

that

‘a

2696278, at *13 (Ky. Ct. App. July 9, 2010).
“The

intracorporate

conspiracy

doctrine

holds

corporation cannot conspire with its employees, and its employees,
when acting within the scope of their employment, cannot conspire
among themselves.’”

Cowing v. Commare, 499 S.W.3d 291, 294 (Ky.

Ct. App. 2016) (quoting Tabb v. District of Columbia, 477 F. Supp.
2d 185, 190 (D.D.C. 2007)).
held

that

the

intracorporate

The Kentucky Court of Appeals has
conspiracy

doctrine

applies

conspiracy to retaliate claims brought under KRS § 344.280.

to

Id.;

see also McGee v. Cont’l Mills, Inc., No. 5:09-cv-155-R, 2009 WL
4825010, at *2 (W.D. Ky. Dec. 11, 2009); Dunn v. Gordon Food
Servs., Inc., 3:10-cv-335-R, 2010 WL 4180503, at *2 (W.D. Ky. Oct.
20, 2010).
KRS § 344.280 provides in pertinent part:

12

It shall be an unlawful practice for a person, or for
two (2) or more persons to conspire:
(1) To retaliate or discriminate in any manner against
a person because he has opposed a practice declared
unlawful by this chapter, or because he has made a
charge, filed a complaint, testified, assisted, or
participated in any manner in any investigation,
proceeding, or hearing under this chapter.
Walter argues that the intra-corporate conspiracy doctrine is
not fatal to his claim because a conspiracy to retaliate under KRS
§ 344.280 does not require two or more individuals.

In support of

this proposition, Walter points out that the statute prohibits “a
person” from engaging in retaliatory practices.

However, the

above-cited case law clearly states that a conspiracy to retaliate
requires two or more individuals who are not members of the same
collective entity.

The intra-corporate conspiracy therefore bars

Walter’s conspiracy to retaliate claim against Guitar Center and
Hamilton.

Dismissal of that claim is appropriate.

The Court notes that KRS § 344.280 also allows liability to
attach to a person who directly retaliates against an individual
who has opposed practices declared unlawful by the KCRA.

However,

Count II states only a claim for conspiracy to retaliate.
is no additional claim for direct retaliation.

There

In his Motion for

Leave to Amend, Walter essentially seeks permission to add factual
allegations that would state a claim for direct retaliation against
each Defendant under KRS § 344.280. Defendants oppose the proposed

13

amendments on the ground that they are futile.

The Court will

address these arguments in the next section.
B.

Walter’s Motion to Amend the Complaint
As explained above, Walter filed a Motion to Amend the

Complaint after Defendants’ Motion to Dismiss became ripe.

In his

Motion, Walter asks the Court for leave to add further factual
detail to Count II and to assert additional claims for disability
discrimination in violation of the Americans with Disabilities Act
(“ADA”),

constructive

discharge

under

retaliation in violation of the FMLA.

Kentucky

law,

and

Defendants urge the Court

to deny Walter’s Motion as futile because his proposed amendments
still fail to state claims upon which relief may be granted.
1.

Standard of Review

When faced with a motion to amend pleadings, the district
court should “freely give leave when justice so requires.”
R. Civ. P. 15(a)(2).

Fed.

Unless there is an “apparent or declared

reason” that relief is inappropriate, such as “undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc.,” the court should grant
leave to amend.

Id.

“Amendment of a complaint is futile when the

14

proposed amendment would not permit the complaint to survive a
motion to dismiss.”

Miller v. Calhoun Cty., 408 F.3d 803, 817

(6th Cir. 2005).
2.

Count II

“A prima facie case of retaliation requires a plaintiff to
demonstrate ‘(1) that plaintiff engaged in an activity protected
by [the KCRA];3 (2) that the exercise of his civil rights was known
by the defendant; (3) that, thereafter, the defendant took an
employment action adverse to the plaintiff; and (4) that there was
a causal connection between the protected activity and the adverse
employment

action.’”

Brooks,

132

S.W.3d

at

803

(quoting

Christopher v. Stouder Mem’l Hosp., 936 F.2d 870, 877 (6th Cir.
1991).
With respect to the third element, the employment action must
be “materially adverse.”

Smith v. Walle Corp., 62 F. Supp. 3d

587, 596 (E.D. Ky. 2014).

“A materially adverse change may be

demonstrated ‘by a termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title, a
material

loss

of

benefits,

significantly

diminished

material

3
 The quoted text actually refers to Title VII. Christopher, 936 F.2d at
877. However, “Kentucky courts have always construed violations under
the KCRA consistent with federal construction of similar violations under
the federal civil rights laws.” McCullough, 123 S.W.3d at 138. For
this reason, the Brooks court stated that a prima facie case of
retaliation under the KCRA consists of the same elements as a Title VII
claim for retaliation. Brooks, 132 S.W.3d at 803.
15

responsibilities, or other indices that might be unique to a
particular situation.’”

Id. (quoting Ford v. Gen. Motors Co., 305

F.3d 545, 553 (6th Cir. 2002)).
Defendants argue that the retaliation claim against Guitar
Center must be dismissed because Walter does not allege that he
suffered an adverse employment action.4

Instead, he simply states

that he tendered his resignation and that Guitar Center accepted
it without requiring him to work the last two weeks.

In seeking

to amend his Complaint, Walter clarifies that he suffered adverse
employment action in the form of constructive discharge.
Constructive discharge “is a means of proving an element of
a … claim” under the KCRA.

Sullivan v. Paycor, Inc., Civ. A. No.

3:13-CV-00028-H, 2013 WL 2286069, at *3 (W.D. Ky. May 23, 2013).
“[W]hile

constructive

discharge

may

constitute

an

adverse

employment action within the meaning of the KCRA, not all adverse
employment actions constitute constructive discharge.”
132

S.W.3d

at

807.

“The

commonly

accepted

Brooks,

standard

for

constructive discharge is whether, based upon objective criteria,
the conditions created by the employer’s action are so intolerable
that a reasonable person would feel compelled to resign.”

Id.

4
  Defendants do not attack the other three elements of Walter’s prima
facie case.
16

In his Proposed Amended Complaint, Walter states that he
repeatedly requested an accommodation from Guitar Center and did
not receive it.
that

Guitar

[DE 9-1, p. 3-4, ¶ 11-16].

Center’s

failure

to

He further indicates

accommodate

his

eventually prompted him to resign his employment.5
¶

3].

These

discharged

allegations

Walter

by

that

repeatedly

Guitar
failing

Center
to

disability

[Id. at p. 2,
constructively

accommodate

his

disability, combined with its failure to address the negative
comments of his co-workers and supervisors, are sufficient to state
a claim for retaliation based on a constructive discharge theory
under the KCRA. Thus, Walter’s proposed amendments to his Complaint

5
 Walter also predicates his retaliation via constructive discharge claim
on Guitar Center’s alleged withholding of his final paycheck. [DE 9-1,
p. 2, ¶ 8]. Specifically, Walter asserts that, after he submitted his
resignation and ceased working, Guitar Center refused to pay him his
final wages unless he signed a release from liability. [Id.]. This
allegation does not qualify as an adverse employment action because
Walter was no longer employed by Guitar Center at that time. See Allstate
Ins. Co. v. Zeefe, Civ. A. No. 5:15-159-KKC, 2016 WL 1071011, at *4, n.
3 (E.D. Ky. Mar. 17, 2016). However, even if Guitar Center’s actions
could be construed as adverse employment action, Walter would not be
able to establish a causal connection between that action and the
exercise of his rights.
After all, he explicitly states that Guitar
Center withheld his final paycheck in order to coerce him into signing
a release, not as a retaliatory measure for requesting an accommodation.
[Id.].
The Court acknowledges that Walter’s claim is thin. After all, the
Sixth Circuit has stated that “the denial of an accommodation, by itself,
is not sufficient to prove that an employer constructively discharged
an employee.” Gleed v. AT&T Mobility Servs., LLC, 613 F. App’x 535, 539
(6th Cir. 2015). Although Walter indicates that Guitar Center actually
approved his Reasonable Accommodation Request, it was never implemented.
Nevertheless, the Court finds that these allegations, combined with
Guitar Center’s failure to address the negativity that other employees
and supervisors expressed towards Walter, are sufficient to state a
claim, for the reasons stated more fully in the body of his Memorandum
Opinion and Order.
17

are not futile.

His Motion for Leave to Amend is granted as to

his proposed claim against Guitar Center for direct retaliation in
violation of the KCRA.
Defendants

also

insist

that

Walter’s

retaliation

claim

against Hamilton fails because Walter does not allege that Hamilton
retaliated against him for requesting an accommodation by making
derogatory comments about his disability.6

Rather, Walter alleges

that Hamilton made derogatory comments to him because he was
disabled.

Defendants

conclude

that

Walter’s

claim

against

Hamilton is essentially one for disability discrimination, which
he cannot pursue under the KCRA for the reasons stated supra.
Defendants also point to a lack of allegations that Hamilton knew
about Walter’s request for an accommodation.
Walter seeks to correct these flaws in his Proposed Amended
Complaint, but Defendants insist that his efforts are nevertheless
futile because he cannot establish that Hamilton’s derogatory
comments amount to actionable harassment.

A prima facie case of

retaliatory harassment consists of the same elements as a prima
facie case of retaliation, except that a plaintiff may demonstrate
that

“he

was

subjected

to

severe

or

pervasive

retaliatory

6
  Although Title VII does not allow liability to attach to individuals
for retaliatory conduct, the KCRA does allow for individual liability
for retaliation. Frentz v. City of Elizabethtown, Civ. A. No. 08-621JBC, 2010 WL 4638768, at *4 (W.D. Ky. Nov. 4, 2010) (citing Morris, 201
F.3d at 794).
18

harassment by a supervisor” in lieu of proving adverse employment
action.

Morris v. Oldham Cty. Fiscal Ct., 201 F.3d 784, 792 (6th

Cir. 2000) (holding that retaliatory harassment by a supervisor is
actionable under Title VII); Diamond v. United States Postal Serv.,
29 F. App’x 207, 213 (6th Cir. 2002).

However, such harassment

must “constitute[] more than simple teasing, offhand comments, and
isolated incidents.”

Id.

Walter alleges that Hamilton made disparaging comments about
his disability on three occasions in a nine-day period.

However,

Walter has not included any facts to suggest that Hamilton’s
comments rose to the level of severe and pervasive harassment.

In

fact, Hamilton’s behavior seems more akin to the offhand comments
and

isolated

incidents

retaliatory harassment.

that

are

insufficient

to

constitute

Because Walter’s proposed amendments to

his retaliation claim against Hamilton fail to state a claim upon
which relief may be granted, this aspect of his request for leave
to amend must be denied as futile.
3.

Discrimination in Violation of the ADA

The ADA prevents employers from “discriminat[ing] against a
qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.”
19

42 U.S.C. § 12112(a).

Before bringing a claim for disability discrimination, a plaintiff
must exhaust his or her administrative remedies by filing a charge
of discrimination with the Equal Employment Opportunity Commission
(“EEOC”).

Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299,

309 (6th Cir. 2000).
Defendants argue that Walter should not be permitted to amend
his Complaint to include a claim for disability discrimination in
violation of the ADA because such an exercise is futile.

In

support of this proposition, Defendants point to the lack of
evidence that he filed a charge of discrimination with the EEOC.
Walter

does

not

contest

this

argument.

Because

he

has

not

exhausted his administrative remedies, his proposed amended claim
would not be able to withstand a Motion to Dismiss.

His request

for leave to amend will therefore be denied as futile.
4.

Constructive Discharge

As the Court explained supra, “Kentucky law does not recognize
independent claims of … constructive discharge—they are actionable
only through the KCRA.”

Suchanek v. Univ. of Ky., Civ. A. No.

3:10-19-DCR, 2011 WL 3045986, at *9 (E.D. Ky. July 25, 2011); see
also Sullivan, 2013 WL 2286069, at *3.

Thus, to the extent that

Walter seeks to amend his Complaint to state a stand-alone claim
for constructive discharge, his request must be denied as futile.

20

5.

Retaliation in Violation of the FMLA

“The FMLA entitles qualifying employees to up to twelve weeks
of unpaid leave each year if, among other things, an employee has
a ‘serious health condition that makes the employee unable to
perform the functions of the position of such employee.’”

Walton

v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (quoting 29
U.S.C.

§

2612(a)(1)(D)).

To

state

a

prima

facie

case

of

retaliation under the FMLA, a plaintiff must satisfy the following
elements: (1) he availed himself of a protected right under the
FMLA; (2) he suffered an adverse employment action; and (3) there
was a causal connection between the exercise of rights and the
adverse employment action.

Edgar v. JAC Prods, Inc., 443 F.3d

501, 508 (6th Cir. 2006).
Defendants argue that Walter’s efforts to state a claim for
FMLA retaliation against Guitar Center are futile because he is
once again unable to satisfy the third element of a prima facie
case.

Walter alleges that he suffered adverse employment action

when he was placed on a performance improvement plan shortly after
returning from FMLA leave.

[DE 9-1, p. 7-8, ¶ 43].

He also claims

that his constructive discharge amounted to an adverse employment
action.

While Defendants are correct in asserting that placement

on a performance improvement plan does not constitute adverse
employment action for purposes of an FMLA retaliation claim,

21

constructive

discharge

may

suffice

to

satisfy

that

element.

Novotny v. Reed Elsevier, 291 F. App’x 698, 703 (6th Cir. 2008);
Festerman v. Cty. of Wayne, 611 F. App’x 310, 322 (6th Cir. 2015).
Thus, Walter has alleged sufficient facts to state a claim for
FMLA retaliation against Guitar Center.

Walter will be permitted

to amend his Complaint to include such a claim.
As a final matter, the Court notes that Walter has merely
submitted the proposed additions to his Complaint, rather than a
full Amended Complaint.

Because the Court has given him leave to

amend certain aspects of his Complaint, Walter must submit a full
Amended Complaint consistent with the terms of this Memorandum
Opinion and Order.7
IV.

CONCLUSION

Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

Defendants

Guitar

Center

Stores,

Inc.

and

Kirk

Hamilton’s Motion for Partial Dismissal [DE 6] be, and is, hereby
GRANTED as to Count I (KCRA discrimination) against Defendant
Hamilton,

Counts

III

(outrage)

and

IV

(negligent

hiring

and

7
 Walter also suggests that Defendants’ Motion to Dismiss should be denied
as moot, in light of his Motion for Leave to Amend. [DE 11 at 7-8].
This assertion is incorrect, as some of his claims are subject to
dismissal in spite of his Motion.
22

retention) against both Defendants, and the portion of Count II
(KCRA retaliation) that purports to state a conspiracy claim
against both Defendants;
(2)

Plaintiff Walter’s Motion for Leave to Amend [DE 9] be,

and is, hereby GRANTED as to Count II (direct claims for KCRA
retaliation) against each Defendant, as well as proposed Count VI
(FMLA retaliation), and

DENIED

as to proposed Count IV (ADA

disability discrimination) and Count V (constructive discharge);
(3)

Plaintiff Walter shall FILE a full Amended Complaint

consistent with this Court’s Memorandum Opinion and Order within
fourteen (14) days of the date of entry of this Order; and
(4)

Pursuant to Fed. R. Civ. P. 16 and 26,
(a)

within

twenty-one

(21)

days

from

the

date

of

service of this Order, the parties, by counsel, shall meet, either
in person or by telephone, to discuss the nature and basis of their
claims and defenses and the possibilities for a prompt settlement
or resolution of the case, to make or arrange for the disclosures
required by Fed. R. Civ. P. 26(a)(1), as amended December 1, 2010,
and to develop a proposed discovery plan.

See Fed. R. Civ. P.

26(f), as amended December 1, 2006.
(b)

within ten (10) days after the meeting the parties

shall file a joint status report containing:

23

(i)

the discovery plan;

plan,

the

parties

should

in formulating their
consider

the

Court’s

belief that discovery should last between three and
five months.
(ii) the parties' estimate of the time necessary to
file pretrial motions;
(iii) the parties' estimate as to the probable
length of trial;
(iv) the dates mutually convenient for trial;
(v)

the parties' decision as to whether the action

may be referred to a United States magistrate judge
for trial pursuant to 28 U.S.C. § 636(c); and
(vi)

the parties’ determination as to whether the

resolution of the case may be aided by mediation or
other special procedures as

authorized by statute

or local rule.
Counsel may utilize Form 52, Fed. R. Civ. P.(App.) as the
form of the joint status report.

Each party is directed to advise

the Court at the time of the submission of the joint report of all
parent

corporations,

subsidiaries,

partners with which it is associated.
This the 31st day of July, 2017.

24

affiliates,

members

and/or

25