Stroder v. Commonwealth of Kentucky Cabinet for Health & Family Services et al

Filing 104

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 3/26/12 DENYING 81 MOTION for Reconsideration; Also ordered: 1) The stay as to Count IV of the Second Amended Complaint remains in effect; and2) The Courts previous Memorandum Opinions addressing Count IV should not beconstrued as determinative of any issues now before the Personnel Board by virtue of Plaintiffs appeal. cc:counsel (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:09-CV-00947-H
MILTON ELWOOD STRODER

PLAINTIFF

V.
COMMONWEALTH OF KENTUCKY
CABINET FOR HEALTH AND FAMILY SERVICES, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
In its Memorandum Opinion dated March 15, 2012, the Court stayed consideration of
whether Plaintiff was properly terminated pending determination of this issue by the Personnel
Board. Defendants now move for reconsideration, arguing that Plaintiff was properly terminated
and, in the alternative, Plaintiff is time-barred from appealing his termination to the Personnel
Board. For the reasons that follow, the Court will abstain from considering these issues at this
time.
Defendants argue that Plaintiff was properly terminated because, despite Defendants’
reliance on KRS § 18A.095 earlier in this litigation, KRS § 18A.111 actually controls terminated
employees’ notification rights. KRS § 18A.111 states that probationary employees have no right
to appeal employment actions taken against them, except as provided in KRS § 18A.095.
Because Defendants stated this information, almost verbatim, in Plaintiff’s termination letter,
they argue he was given adequate notification of his right to appeal. In the alternative,
Defendants contend that, even if Plaintiff was provided inadequate notification, he was still
required to file his appeal within one year of his penalization pursuant to KRS § 18A.095(29).
Subsection (29) states that “an employee that has been penalized, but has not received a written

notice of his or her right to appeal as provided in this section, shall file his or her appeal with the
Personnel Board within one (1) year . . . .” Defendants cite to two Kentucky state court cases
purportedly illustrating the requirement for employees to appeal penalization within one year,
irrespective of whether they receive notice of the adverse action taken against them. See Ky.,
Dep’t of Revenue, Fin. & Admin. Cabinet v. McDonald, 304 S.W.3d 62 (Ky. Ct. App. 2009);
Carreer v. Cabinet for Health and Family Servs., 339 S.W.3d 477 (Ky. Ct. App. 2010).
At first glance, the statutes and two cases cited by Defendants appear relevant to this
case, but the Court is not wholly convinced. The two cases cited involve merit or classified
employees who possess property rights in their state employment and are therefore entitled to
procedural due process. Classified employees are presumably well aware of their rights and
they need not be made explicitly aware of adverse actions taken against them, nor provided
written notification of such. On the other hand, probationary employees, like Plaintiff, are not
afforded procedural due process and have no property rights in their continuing employment.
These employees may be unaware of or misguided regarding what few rights and protections
they do have. Therefore, it may be critically important that they are provided proper notice of
not only the adverse actions taken against them, but also their rights to appeal. For these
reasons, the cases cited by Defendants may be of little or no significance in cases like the one at
hand.
In its prior Memorandum Opinion the Court opined that Plaintiff’s appeal to the
Personnel Board was not time-barred. Upon reconsideration, however, the Court concludes that
it should abstain from determining the application of the cases or statutes. The Personnel Board
is the body most capable of deciding which statutes govern probationary employees, what notice

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they must be given, and what rights they have to appeal. Federal courts are obligated “to
exercise the jurisdiction given them.” MacDonald v. Vill. of Northport, 164 F.3d 964, 968 (6th
Cir. 1999) (quoting Col. River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 817
(1976)). This concept, established by the Supreme Court and coined the “Burford doctrine,”
“permits federal courts to abstain from deciding cases ‘when there is a need to defer to complex
state administrative procedures.’” Hasken v. City of Louisville, 173 F. Supp. 2d 654, 659-60
(W.D. Ky. 2001) (quoting MacDonald, 164 F.3d at 967). One such occasion is “where the
‘exercise of federal review of the question . . . would be disruptive of state efforts to establish a
coherent policy with respect to a matter of substantial public concern.’” Id. at 660 (quoting New
Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989)).
Although the Court currently has jurisdiction over Plaintiff’s state claims in this case, the
risk of interfering with state agency actions and policies regarding public employees remains.
The interpretation of state employment statutes and the role of state agencies in evaluating such
statutes is uniquely an interest of the state. The Personnel Board is tasked with hearing stateemployee appeals and analyzing statutes governing state employment. It has extensive
experience and knowledge regarding these issues, and it is the best body to evaluate Plaintiff’s
situation. Plaintiff has already filed his appeal with the Personnel Board. In order to allow this
appeal to proceed properly, this Court will maintain its stay of the claims under Count IV of the
Second Amended Complaint.
Having decided that the Personnel Board should determine whether Plaintiff was
properly terminated, it appears upon further consideration, that the Personnel Board should also
decide whether Plaintiff may assert his appeal at all. Then, and only if this first question is

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answered affirmatively, the Personnel Board should proceed to determine whether Plaintiff was
properly terminated. The Court will abstain from deciding both of these issues, and dismiss
Count IV of the Second Amended Complaint.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants’ Motion for Reconsideration is DENIED
and it is therefore ORDERED that:
1) The stay as to Count IV of the Second Amended Complaint remains in effect; and
2) The Court’s previous Memorandum Opinions addressing Count IV should not be
construed as determinative of any issues now before the Personnel Board by virtue of Plaintiff’s
appeal.

March 26, 2012

cc:

Counsel of Record

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