Pettway v. Logistics Solutions Group, Inc.

Filing 36

MEMORANDUM OPINION AND ORDER Signed by Judge David J. Hale on 11/28/2018. Akima LLC, Akima Support Operations LLC, and Wolverine Services LLC's motion to dismiss for failure to state a claim (D.N. 27 ) is GRANTED. Pettway's claims again st Akima LLC, Akima Support Operations LLC, and Wolverine Services LLC are DISMISSED. The Clerk of Court is DIRECTED to terminate Akima LLC, Akima Support Operations LLC, and Wolverine Services LLC as defendants in the record of this matter. Pettway's second motion for leave to amend (D.N. 30 ) is DENIED. cc: Counsel (MEJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
ABRAHAM PETTWAY,

Plaintiff,

v.

Civil Action No. 3:17-cv-73-DJH-CHL

LOGISTICS SOLUTIONS GROUP, INC., et
al.,

Defendants.

* * * * *
MEMORANDUM OPINION AND ORDER
Abraham Pettway is a dispatcher at a Transportation Motor Pool facility servicing the Fort
Knox Army post. (Docket No. 20, PageID # 200) Pettway’s supervisors allegedly discriminated
against Pettway due to his race, age, gender, and perceived disability. (Id., PageID # 200-07)
Although Pettway reported his supervisors’ misconduct, his employers Wolverine Services LLC,
Akima Support Operations LLC, and Akima LLC (collectively “Akima”) and Akima’s successor,
Logistics Solutions Group, Inc. (LSG) did not take corrective action. (Id., PageID # 201-05)
Pettway filed this lawsuit against LSG and subsequently joined Akima, asserting claims of race,
age, gender, and disability discrimination; retaliation; outrageous conduct; negligent hiring and
supervision against Akima. (D.N. 1-1; D.N. 20) Akima moved to dismiss all claims against it on
the grounds that Pettway did not state a claim. (D.N. 27) Pettway sought leave to amend his
complaint a second time. (D.N. 30) Akima opposes Pettway’s motion for leave to amend, arguing
that the proposed amendment is futile for the same reasons asserted in its motion to dismiss. (D.N.
31) The Court agrees and will therefore deny Pettway’s motion to amend and grant Akima’s
motion to dismiss.

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I. BACKGROUND
The following facts are set out in the first amended complaint and accepted as true for
purposes of the present motions. See Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716
(6th Cir. 2005). Pettway is and has been employed as a dispatcher at a Transportation Motor Pool
Facility (TMP) on Fort Knox since 2001. (D.N. 20, PageID # 200) In 2012, Akima acquired the
TMP and, in assuming substantially all of the employees at the TMP, became Pettway’s employer.
(Id.)
In 2013, Donnell Scott, Pettway’s supervisor, began discriminating against Pettway in a
variety of ways, such as denying Pettway holiday pay and treating Pettway as though he were
disabled due to his age and race. (Id., PageID # 202-03) Pettway reported this misconduct to
Akima through the transportation manager. (Id., PageID # 201) However, Akima did not take
corrective action. (Id.)
The discrimination against Pettway continued when Logistics Solutions Group, Inc.,
assumed Akima’s contract in 2015; LSG retained all Akima employees, including those who
mistreated Pettway. (Id., PageID # 202) Pettway reported the disparate treatment to LSG, but
LSG took no action. (Id., PageID # 205) The discrimination caused Pettway to suffer monetary
losses as well as anxiety, fear, worry, sleep loss, stomach pain, and physical ailments related to
stress, such as high blood pressure. (Id., PageID # 209)
Pettway brought this suit against LSG and later amended his complaint to add Akima as a
defendant. (D.N. 1; D.N. 18; D.N. 20) Pettway alleges that Akima and LSG discriminated and
retaliated against him in violation of the Kentucky Civil Rights Act and committed the torts of

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outrageous conduct and negligent hiring and supervision.1 (Id.) He now seeks leave to amend his
complaint again to supplement the factual allegations against Akima. (D.N. 30) Specifically,
Pettway seeks to add examples of disparate treatment while Akima was his employer, such as
being moved to a less desirable shift due to errors made by a young, white employee; Akima
limiting Pettway’s responsibilities and excluding him from meetings; and Pettway’s coworkers
making derogatory comments about his age. (D.N. 30-2, PageID # 307-11) Pettway’s proposed
amended complaint also modifies his description of the TMP location: rather than explicitly stating
that the TMP is located on Fort Knox, Pettway now generally refers to his workplace as the TMP
“providing services to Fort Knox.” (Id., PageID # 307)
Akima opposes the proposed amendment as futile, arguing that Pettway’s KCRA and
outrageous-conduct claims are barred by the Federal Enclave Doctrine and that Pettway’s
negligent hiring and supervision claim is preempted by the Kentucky Workers Compensation Act.
(D.N. 31) Akima further contends that because the claims against it are barred, they should be
dismissed under Federal Rule of Civil Procedure 12(b)(6). (D.N. 27) The Court agrees.
II.

STANDARD
Leave to amend should be “freely” granted “when justice so requires.” Fed. R. Civ. P.

15(a)(2). This means that “[i]n the absence of any apparent or declared reason—such as undue
delay, bad faith or . . . futility of amendment, etc.—the leave sought should, as the rules require,
be ‘freely given.’” Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 640–41 (6th Cir. 2018)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)). A proposed amendment is futile, and should

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Pettway asserts additional claims against LSG for alleged violations of the Age Discrimination
and Employment Act of 1967, the Civil Rights Act of 1964, the Americans with Disabilities Act,
and 42 U.S.C. § 1981. (D.N. 20, PageID # 216-21)
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not be permitted if it could not survive a Rule 12(b)(6) motion to dismiss. Beydoub v. Sessions,
871 F.3d 459, 469 (2017).
To survive a Rule 12(b)(6) motion to dismiss, the “complaint must contain 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
To meet this standard, a plaintiff must “plead factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. When evaluating
whether this pleading standard has been satisfied, the Court must “accept all the [plaintiff’s] factual
allegations as true and construe the complaint in the light most favorable to the [plaintiff].” Hill,
409 F.3d at 716.
Claims may be dismissed pursuant to Rule 12(b)(6) if they are barred by the Federal
Enclave Doctrine. Klausner v. Lucas Film Entm’t Co., No. 09-03502 CW, 2010 WL 1038228, at
*4 (N.D. Cal. Mar. 19, 2010). Under the Federal Enclave Doctrine, if a state legislature consents
to the purchase of land by the United States, the federal government obtains exclusive legislative
power over such land unless the state reserved the right to retain legislative power. Falls Brewing
Co. v. Reeves, 40 F. Supp. 35, 38-40 (W.D. Ky. 1941). If a state does not reserve legislative power,
state laws in existence at the time of the acquisition are enforceable on the enclave, but
subsequently enacted laws are not. Paul v. United States, 371 U.S. 245, 268 (1963). Thus, if an
injury occurs on a federal enclave, claims may only be brought under laws enforceable on the
enclave. See Bordetsky v. Akima Logistics Servs., LLC, No. CIV.A. 14-1786 NLH, 2014 WL
7177321, at *2 (D.N.J. Dec. 16, 2014). Pettway concedes that his proposed amendment would be
futile if the Court finds that the Federal Enclave Doctrine applies here. (D.N. 30-1, PageID # 301)

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III.

DISCUSSION
A.

Pettway’s Kentucky Civil Rights Act and Outrageous-Conduct Claims
Akima argues that Pettway’s Kentucky Civil Rights Act and outrageous-conduct claims

are barred by the Federal Enclave Doctrine. (D.N. 30-2) As Akima notes, Fort Knox became a
federal enclave in 1942. Ky. Rev. Stat. § 3.030; see also Watkins v. Safety-Kleen Systems, Inc.,
No. CIV A 5:08-CV-224KSF, 2008 WL 4073554, at *6 (E.D. Ky. Aug. 29, 2008); In re Air Crash
Disaster at Gander, Newfoundland on Dec. 12, 1985, 660 F. Supp. 1202, 1207 n.4 (W.D. Ky.
1987). Kentucky did not reserve legislative power on Fort Knox. Ky. Rev. Stat. § 3.030; see
Watkins, 2008 WL 4073554, at *6. The Kentucky Civil Rights Act was enacted in 1966, and
Kentucky first recognized the tort of outrageous conduct in 1984. Ky. Rev. Stat. § 344.020; Craft
v. Rice, 671 S.W.2d 247, 250-51 (Ky. 1984); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922
S.W.2d 385, 389 (Ky. Ct. App. 1996). Therefore, if Pettway’s injuries occurred on Fort Knox, his
KCRA and outrage claims against Akima are barred by the Federal Enclave Doctrine. 2 See Paul,
371 U.S. at 268; Bordetsky v. Akima Logistics Servs., LLC, 2014 WL 7177321, at *2.
Pettway does not dispute Fort Knox’s status as a federal enclave or the inapplicability of
the KCRA and tort of outrageous conduct to injuries suffered on Fort Knox. (See D.N. 28) Instead,
he contends that there is nothing in his proposed amended complaint indicating that his injuries
occurred on Fort Knox. (D.N. 28, PageID # 272) However, Pettway’s proposed amended
complaint states twice that his injuries occurred at his workplace on “Fort Knox, Hardin County,

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Pettway also suggests that Akima may have waived the exclusive jurisdiction of the federal
enclave when it became certified by the United States Small Business Administration and when
it contracted with the federal government to provide logistics to Fort Knox. (D.N. 28, PageID #
271-74) However, a contract between the federal government and a private party cannot alter the
exclusivity of federal jurisdiction. Brookhaven Sci. Assoc., LLC v. Davidson, No. 04 CIV.4013
LAP, 2007 WL 2319141, at *7 (S.D.N.Y. Aug. 9, 2007); Mersnick v. USProtect Corp., No. C06-03993 RMW, 2006 WL 3734396, at *6 (N.D. Cal. Dec. 18, 2006).
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Kentucky.” (D.N. 30-2, PageID # 313, 319) Pettway’s KCRA and outrageous-conduct claims are
therefore barred by the Federal Enclave Doctrine, and the proposed amended complaint is futile
as to these claims.
B.

Pettway’s Negligent Hiring and Supervision Claim
Akima next argues that the proposed amendment is futile with respect to Pettway’s

negligent hiring and supervision claim because that claim is preempted by the Kentucky Workers
Compensation Act.3 (D.N. 27-1, PageID # 266; D.N. 31, PageID # 348). Under the KWCA’s
exclusivity provision, “[i]f an employer secures payment of compensation as required by [the
KWCA], the liability of such employer shall be exclusive and in place of all other liability of such
employer to the employee.” Ky. Rev. Stat. § 342.690. Thus, the KWCA is the exclusive remedy
for negligent hiring and supervision claims made by an employee against an employer covered by
the Act. Roof v. Bel Brands USA, Inc., 641 F. App’x 492, 499 (6th Cir. 2016); Tucker v. City of
Princeton, Ky., No. 5:08-CV-00203-TBR, 2010 WL 2773390, at *11 (W.D. Ky. July 13, 2010).
Pettway does not challenge Akima’s coverage under the KWCA. (D.N. 28)
Pettway does assert, however, that the KWCA is inapplicable to his hiring and supervision
claim because his injuries are not physical and did not arise from a physical injury. (D.N. 28,
PageID # 277) He argues that the KWCA only preempts negligence claims that relate to physical
injuries. (Id.) Yet Pettway alleges that Akima’s negligence caused him to suffer physical injuries
such as “stomach upsets and aggravation of physical conditions affected by stress, including blood
pressure.” (D.N. 30-2, PageID # 321) Furthermore, in Roof, the Sixth Circuit held that the KWCA
preempts claims for damages not resulting from a physical injury. 641 F. App’x at 499. As the

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Kentucky recognized negligent hiring and supervision claims before Fort Knox became a federal
enclave. See Maggard v. Louisville Cooperage Co., 22 S.W.2d 279 (Ky. 1929). Thus, these claims
are not barred by the Federal Enclave Doctrine. See Paul, 371 U.S. at 268 (1963).
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district court in Roof explained, and the Sixth Circuit affirmed, the text of the KWCA as well as
Kentucky courts’ history of interpreting it show that the intent of the Act was to prohibit all
negligence actions between an employee and employer; consequently, Roof’s negligent-hiring
claim was preempted even though her injury was emotional pain and suffering. Roof v. Bel Brands
USA, Inc., No. 4:14CV-00071-JHM, 2014 WL 5243051 (W.D. Ky. Oct. 15, 2014); see also
Tucker, 2010 WL 2773390, at *11 (plaintiff’s negligent-supervision claim was preempted by the
KWCA even though her injury was emotional and mental distress). Pettway’s negligent hiring
and supervision claim is likewise preempted by the KWCA notwithstanding Pettway’s allegations
of some non-physical injuries. See Roof, 641 F. App’x at 499.
IV.

CONCLUSION
Pettway’s proposed amendment is futile. Moreover, the foregoing analysis applies equally

to Pettway’s first amended complaint. Accordingly, and the Court being otherwise sufficiently
advised, it is hereby
ORDERED as follows:
(1)

Akima LLC, Akima Support Operations LLC, and Wolverine Services LLC’s

motion to dismiss for failure to state a claim (D.N. 27) is GRANTED. Pettway’s claims against
Akima LLC, Akima Support Operations LLC, and Wolverine Services LLC are DISMISSED.
The Clerk of Court is DIRECTED to terminate Akima LLC, Akima Support Operations LLC,
and Wolverine Services LLC as defendants in the record of this matter.
(2)

Pettway’s second motion for leave to amend (D.N. 30) is DENIED.

November 28, 2018

David J. Hale, Judge
United States District Court
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