Lindsey v. Management and Training Corporation

Filing 20

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 6/11/2018 granting 12 Motion for Partial Dismissal. cc: Counsel (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:17-CV-00146-JHM
TERRY LINDSEY

PLAINTIFF

v.
MANAGEMENT & TRAINING CORPORATION

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion for partial dismissal by defendant
Management & Training Corporation (“M & T”). (DN 12.) Fully briefed, this matter is ripe for
decision.
I. BACKGROUND
According to the complaint, plaintiff Terry Lindsey was terminated from her employment
with M & T in May 2016. (Pl.’s Compl. [DN 1] ¶ 18.) She alleges that she was terminated
because she is an African-American and notes that she and other African-American employees in
management positions were either removed or encouraged to resign from management prior to
her termination. (Id. ¶¶ 16–18.) She also alleges that she was terminated because she was seen
by another employee with her significant other, who was a female former employee of M & T,
whereas the company never took disciplinary action against employees who were engaged in
opposite-sex relationships with other employees. (Id. ¶¶ 19–20.) She has asserted claims against
M & T for violating Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act
(“KCRA”) by discriminating against her on the basis of her race and sex. (Id. ¶¶ 21–30.) M & T
have moved to dismiss the sex discrimination claims, as well as any breach of contract or
retaliation claims she may have alleged. (DN 12.)

II. STANDARD OF REVIEW
Upon a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6),
a court “must construe the complaint in the light most favorable to plaintiffs,” League of United
Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), “accept all
well-pled factual allegations as true,” id., and determine whether the “complaint . . . states a
plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff must
provide the grounds for its entitlement to relief, which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard when it “pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint falls short if it pleads facts “merely
consistent with a defendant’s liability” or if the facts do not “permit the court to infer more than
the mere possibility of misconduct.” Id. at 678–79. Instead, a complaint “must contain a ‘short
and plain statement of the claim showing that the pleader is entitled to relief.’” Id. at 677
(quoting Fed. R. Civ. P. 8(a)(2)). “But where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
III. DISCUSSION
A. RETALIATION CLAIMS
M & T argues that Lindsey cannot maintain any claim for retaliation under Title VII, as
she has not exhausted her remedies with the Equal Employment Opportunity Commission for
such a claim. Lindsey concedes this point and does not object to the dismissal of this claim. As
such, the Court will grant the motion to dismiss the Title VII claim for retaliation.

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M & T also argues that any claim for unlawful retaliation under the KCRA has been
inadequately pled, as there are no factual allegations in the complaint that demonstrate Lindsey
was engaged in a protected activity. Lindsey does not respond to this argument. “To establish a
prima facie case for retaliation, [the plaintiff] has the initial burden to show that (1) she . . .
engaged in a protected activity . . .” Banks v. Bosch Rexroth Corp., 15 F. Supp. 3d 681, 693
(E.D. Ky. 2014) (quoting Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435 (6th Cir. 2009)). Under
the KCRA, protected activities include “oppos[ing] a practice declared unlawful by this chapter,
or . . . ma[king] a charge, fil[ing] a complaint, testif[ying], assist[ing], or participat[ing] in any
manner in any investigation, proceeding, or hearing under this chapter.” KRS § 344.280(1).
Lindsey has not pled any facts demonstrating that she engaged in such acts while employed by M
& T. Thus, the Court will grant the motion to dismiss the KCRA claim for retaliation.
B. BREACH OF CONTRACT
Lindsey has not specifically made a claim for breach of contract against M & T. Her
complaint’s introductory paragraph states that she is challenging M & T’s “breach of contract,”
but M & T argues that the complaint contains no facts that plausibly allege such a claim.
Lindsey argues that it is premature to dismiss the claim, as M & T breached several different
employment letters and the employee handbook throughout Lindsey’s employment. However,
even if these documents exist and would support such a claim, the complaint does not plead their
existence or any facts that plausibly allege the existence of a contract, breach of that contract,
and damages from that breach. Metro Louisville/Jefferson Cty. Gov. v. Abma, 326 S.W.3d 1, 8
(Ky. Ct. App. 2009). Without some facts showing what the terms of the contract were and how
they were breached, the claim cannot survive. As such, the Court will grant the motion to
dismiss any claim for breach of contract.

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C. SEX DISCRIMINATION CLAIMS
Lindsey has asserted claims under both Title VII and the KCRA for sex discrimination.
The complaint alleges that M & T took adverse action against her upon discovering that she was
dating a former female coworker, despite the company having refused to enforce its policy on
office relationships for opposite-sex couples.

M & T argues that Lindsey has not pled a

cognizable claim under either Title VII or the KCRA, as the characteristic upon which she claims
she was discriminated, her sexual orientation, is not a protected classification under either law.
Both Title VII and the KCRA prohibit discrimination on the basis of sex. 42 U.S.C. §
2000e-2(a)(1); KRS 344 § 344.040(1)(a). The Sixth Circuit has categorically held that “sexual
orientation is not a prohibited basis for discriminatory acts under Title VII.” Vickers v. Fairfield
Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006). Further, the Sixth Circuit, in applying Title VII
precedent to the KCRA, has held that the KCRA also does not protect individuals from
discrimination based on sexual orientation. Pedreira v. Ky. Baptist Homes for Children, Inc.,
579 F.3d 722, 727 (6th Cir. 2009). Lindsey’s complaint alleges that M & T took adverse action
against her because of her same-sex relationship. Because of the Sixth Circuit’s opinion in
Vickers, this claim is foreclosed under both Title VII and the KCRA.
Lindsey’s arguments to the contrary, while foreclosed by Vickers, are not without some
merit. Title VII’s protection against sex discrimination allow for claims “based on gender
nonconformance that is expressed outside of work.” EEOC v. R.G. & G.R. Harris Funeral
Homes, Inc., 884 F.3d 560, 580 (6th Cir. 2018) (citing Smith v. City of Salem, 369 F.3d 912
(amended and superseded, 378 F.3d 566) (6th Cir. 2004); Barnes v. City of Cincinnati, 401 F.3d
729 (6th Cir. 2005)).

“Under any circumstances, sex stereotyping based on a person’s gender

non-conforming behavior is impermissible discrimination.” Id. at 572 (quoting Smith, 378 F.3d

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at 575). If the Court were simply required to apply this framework, Lindsey’s claim would likely
survive. Lindsey’s behavior that was at the root of the alleged discrimination (dating another
woman) fails to conform to the stereotypical female behavior of dating men. The Vickers court
seemed to acknowledge that such claims based on sexual orientation discrimination fit within the
framework for analyzing sex discrimination claims, stating that, “[i]n all likelihood, any
discrimination based on sexual orientation would be actionable under a sex stereotyping theory if
this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional
gender norms in their sexual practices.” Vickers, 453 F.3d at 764. But the Vickers court
removed claims based on sexual orientation from ever being put through this analytical
framework by declaring that “a gender stereotyping claim should not be used to bootstrap
protection for sexual orientation into Title VII.” Id. at 764 (quoting Dawson v. Bumble &
Bumble, 398 F.3d 211, 218 (2d. Cir. 2005)).1 Thus, because Vickers remains good law, see R.G.
& G.R. Harris, 884 F.3d at 579, the Court must dismiss Lindsey’s Title VII and KCRA claims
for sex discrimination.
Lindsey makes one final argument against dismissal. She states that, because M & T is
allegedly a federal contractor, it is bound by Executive Order 13672, which prohibits federal
contractors from discriminating on the basis of sexual orientation. But Lindsey’s complaint
makes no mention of this Executive Order as a legal theory under which she is seeking relief.
Instead, she only seeks to recover under Title VII and the KCRA. As such, she cannot pursue a
claim of sexual orientation discrimination under the Executive Order, and her sex discrimination
claims must be dismissed.

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Dawson was recently overruled by Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d. Cir. 2018).

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IV. CONCLUSION
Therefore, for the reasons stated above, the motion for partial dismissal by defendant
Management & Training Corporation (DN 12) is GRANTED.

June 11, 2018

cc: counsel of record

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