Walter v. Guitar Center Stores, Inc. et al
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,
GUITAR CENTER STORES, INC.
and KIRK HAMILTON,
Action No. 5:16-cv-459-JMH
This matter is before the Court upon Defendant Guitar Center
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].
the reasons stated herein, Defendants’ Motion is hereby GRANTED
and Plaintiff’s Motion is hereby GRANTED IN PART and DENIED IN
II. FACTUAL AND PROCEDURAL BACKGROUND
Walter worked as a Store Manager at Guitar Center’s Lexington,
Kentucky location from October 2009 to March 2016.
During this time, he suffered from a medical condition
that caused serious pain in his knees and feet.
[DE 1-1, p. 5,
[Id. at p. 5-6,
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].
On February 17, 2016, he submitted a Reasonable
Administrator Nancy Ponce.
comments about his disability.
[Id. at p. 7, ¶ 16-17].
statements about his condition.
[Id. at p. 6, ¶ 13].
Six days later, Walter returned to work.
When Walter complained to
Resources, Haffeman told him to “look in the mirror.”
[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].
position was unfilled, Walter was required to stand without breaks
for the entire workday.
He requested that Guitar Center
hire an appropriate individual to resolve this problem.
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
and suggested that Walter resign if he could not walk the store.
That same day, Walter contacted Ponce to notify her that he
still had not received approval for his Reasonable Accommodation
[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.
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].
Garrett, was terminated and replaced by Ryan Flannery that same
[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.
at p. 8, ¶ 26].
On March 4, 2016, Walter tendered his resignation to Flannery
[Id. at p. 8, ¶ 28].
Flannery claimed to be
unaware that Walter was entitled to any accommodations.
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].
Center then sent Walter a release from liability and informed him
that he would not receive his final paycheck if he refused to sign
[Id. at p. 9, ¶ 32].
Walter notified the Kentucky Department
of Labor about the issue, prompting Guitar Center to send him his
[Id. at p. 9, ¶ 33].
On November 21, 2016, Walter filed suit against Guitar Center
following claims: (1) discrimination in violation of the Kentucky
Civil Rights Act (“KCRA”); (2) retaliation in violation of the
retention against Guitar Center only.
and Hamilton removed the case to federal court on December 16,
2016 on the basis of diversity jurisdiction.
filed the instant Motion to Dismiss.
Once that Motion
was fully briefed, Walter submitted a Motion to Amend, in which he
seeks to add further detail to his retaliation claim and assert
Americans with Disabilities Act (“ADA”), constructive discharge
under Kentucky law, and retaliation under the FMLA.
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.”
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
“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.”
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.
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.
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).
Accordingly, “Kentucky courts
have always construed violations under the KCRA consistent with
federal construction of similar violations under the federal civil
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
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
Ky. Rev. Stat. Ann. § 344.040(1)(a); compare 42 U.S.C. § 2000e2(a).
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.
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
“employer” under Title VII and, by extension, the KCRA.
[DE 1-1, p. 7-8, ¶ 17-23].
As the above-cited case
law indicates, Hamilton cannot be considered an “employer” simply
because he has supervisory authority over Walter.1
cannot be held individually liable for disability discrimination
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
Assuming arguendo that Hamilton did qualify as Walter’s
supervisor, Walter’s claim nevertheless fails for the reasons stated
in violation of the KCRA.
Dismissal of Count I against Hamilton
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
morality”; (3) there is a causal connection between the wrongdoer’s
conduct and the emotional distress; and (4) the emotional distress
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
The tort of outrage does not provide redress for
behavior that is “cold, callous, and lacking sensitivity.”
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
Wiseman, 359 F. Supp. 2d at 592 (citing Kroger Co. v. Buckley, 113
preemption is that Chapter 344 extends protection to personal
dignity and freedom from humiliation of individuals, interpreted
Id. (citing McNeal v. Armour and Co., 660 S.W.2d 957,
958 (Ky. Ct. App. 1983)).
discrimination in violation of the KCRA against Hamilton and Guitar
[DE 1-1, p. 9-10, ¶ 34-44]. He also pleads a claim for
outrageous conduct against both Defendants.
[Id. at p. 11-12, ¶
For the reasons explained above, Walter’s outrage claim
discrimination claim against that entity.
This is not the case
for Walter’s outrage claim against Hamilton because the Court has
already dismissed the disability discrimination claim against him
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!”
Negligent Hiring and Retention
“[T]he established law in this Commonwealth recognizes that
an employer can be held liable when its failure to exercise
foreseeable risk of harm to a third person.”
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
unreasonable risk of harm to the plaintiff.”
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.
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);
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
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
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
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.
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.
“[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).
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.”
Stonestreet Farm, LLC v.
2696278, at *13 (Ky. Ct. App. July 9, 2010).
corporation cannot conspire with its employees, and its employees,
when acting within the scope of their employment, cannot conspire
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)).
The Kentucky Court of Appeals has
conspiracy to retaliate claims brought under KRS § 344.280.
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.
KRS § 344.280 provides in pertinent part:
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.
above-cited case law clearly states that a conspiracy to retaliate
requires two or more individuals who are not members of the same
The intra-corporate conspiracy therefore bars
Walter’s conspiracy to retaliate claim against Guitar Center and
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.
Count II states only a claim for conspiracy to retaliate.
is no additional claim for direct retaliation.
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
amendments on the ground that they are futile.
The Court will
address these arguments in the next section.
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.
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
retaliation in violation of the FMLA.
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.
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).
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.
“Amendment of a complaint is futile when the
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).
“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
Christopher v. Stouder Mem’l Hosp., 936 F.2d 870, 877 (6th Cir.
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
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.
responsibilities, or other indices that might be unique to a
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.
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).
employment action within the meaning of the KCRA, not all adverse
employment actions constitute constructive discharge.”
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.”
Defendants do not attack the other three elements of Walter’s prima
In his Proposed Amended Complaint, Walter states that he
repeatedly requested an accommodation from Guitar Center and did
not receive it.
[DE 9-1, p. 3-4, ¶ 11-16].
He further indicates
eventually prompted him to resign his employment.5
[Id. at p. 2,
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
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.
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.
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.
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
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
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).
harassment by a supervisor” in lieu of proving adverse employment
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
Walter alleges that Hamilton made disparaging comments about
his disability on three occasions in a nine-day period.
Walter has not included any facts to suggest that Hamilton’s
comments rose to the level of severe and pervasive harassment.
fact, Hamilton’s behavior seems more akin to the offhand comments
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.
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.”
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
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.
support of this proposition, Defendants point to the lack of
evidence that he filed a charge of discrimination with the EEOC.
exhausted his administrative remedies, his proposed amended claim
would not be able to withstand a Motion to Dismiss.
for leave to amend will therefore be denied as futile.
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.
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.’”
v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (quoting 29
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
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
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,
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
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
Hamilton’s Motion for Partial Dismissal [DE 6] be, and is, hereby
GRANTED as to Count I (KCRA discrimination) against Defendant
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.
retention) against both Defendants, and the portion of Count II
(KCRA retaliation) that purports to state a conspiracy claim
against both Defendants;
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
as to proposed Count IV (ADA
disability discrimination) and Count V (constructive discharge);
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
Pursuant to Fed. R. Civ. P. 16 and 26,
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.
within ten (10) days after the meeting the parties
shall file a joint status report containing:
the discovery plan;
in formulating their
belief that discovery should last between three and
(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;
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
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
partners with which it is associated.
This the 31st day of July, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?