Watts v. Lyon County Ambulance Service et al
Filing
61
MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 6/2/2014; re 54 MOTION for Summary Judgment filed by Steve Gilland, Rod Murphy, Anthony Young, Lilburn Ann Denny, John Sims, Lyon County Ambulance Service; a separate judgment shall issue cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:12-CV-00060-TBR
KENNETH WATTS
Plaintiff
v.
LYON COUNTY AMBULANCE SERVICE, et al.
Defendants
MEMORANDUM OPINION
This matter is before the Court upon Defendants Lyon County Ambulance
Service, Rod Murphy, Anthony Young, Steve Gilland, Lilburn Ann Denney, and John
Sims’ Motion for Summary Judgment. (Docket No. 54.) Plaintiff Kenneth Watts has
responded, (Docket No. 58), and Defendants have replied, (Docket No. 60). This matter
now is ripe for adjudication. For the reasons that follow, the Court will GRANT
Defendants’ Motion and enter summary judgment in their favor.
BACKGROUND
This litigation arises from the termination of Plaintiff Kenneth Watts’
employment with the Lyon County Ambulance Service (Ambulance Service). Watts
was first employed by the Ambulance Service in September 2008 as a part-time
paramedic. Watts became the interim Executive Director of the Ambulance Service
beginning September 1, 2009, and officially became Executive Director in May 2010.
As Director, Watts was responsible for the day-to-day operations of the Ambulance
Service and reported directly to the Ambulance Service Board, the governing body of
the Ambulance Service. The Board is comprised of five board members. At all times
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pertinent to this litigation, Defendant Murphy was the Board’s chairman and Defendants
Young, Gilland, Denney, and Sims were members of the Board.
At the June 2, 2011, Board meeting, Gilland moved to vacate the position of
Director, and Young seconded. This, in effect, terminated Watts’ employment with the
Ambulance Service. The Board appointed Adam Lyons to replace Watts, and Lyons
officially became Executive Director on September 12, 2011.
Each of the Defendants has submitted an affidavit stating that Watts was
terminated for a history of performance issues and failure to follow the Board’s
directives. (Docket Nos. 54-2, at 3, 7, 9; 54-3, at 4; 54-4, at 3.) Defendants cite among
those issues as problems with lost Medicare reimbursement checks, problems between
Watts and the company contracted to provide billing services to the Ambulance Service,
a lack of timeliness and/or failure in implementing the Board’s requests, Watts’ not
being forthcoming with the Board, and incorrectly filled out run forms. Each of these
issues is summarized below.
The Medicare checks issue
In June 2010, the Ambulance Service moved to a different physical location.
Around the end of 2010, Watts contacted Murphy regarding a Medicare form that
needed to be signed immediately to ensure that Medicare would pay the Ambulance
Service for certain services rendered. Medicare payments comprise approximately 60%
of the Ambulance Service’s income. According to Murphy, this problem arose because
Watts had failed to notify the appropriate organizations of the Ambulance Service’s
change of address.
Murphy states that after Medicare terminated its payments, it
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required that any past due payments be mailed to a physical address. Murphy further
states that Watts was responsible for putting up a mailbox at the Ambulance Service’s
new location but still had not done so as of December 2010. Because there was no
mailbox at the physical address, the Medicare checks were returned and went missing.
Murphy says he provided Watts contact information for an individual in the
office of U.S. Congressman Ed Whitfield from whom Watts could seek help in
resolving the issue of the returned Medicare checks. Watts does not recall Murphy
providing him that contact but acknowledges, “He could have.” (Docket No. 54-5, at
54.) Watts admits he never contacted this individual in an attempt to procure the
missing payments. At the February 2011 Board meeting, the Board learned that the
Ambulance Service had not yet received some $90,000 in Medicare checks. Murphy
then went to Congressman Whitfield’s office himself and spoke with an employee,
Andrea P’Poole, who was able to resolve the issue within a few days.
The 911 Billing issue
The Ambulance Service contracted for billing services with a company called
911 Billing. According to his testimony, Watts understood the Medicare check issue to
be a mistake on 911 Billing’s part. Watts also states that he had issues with 911 Billing
regarding what he perceived as inefficiency by 911 Billing.
Murphy says that in
January 2011 Watts convinced the Board that 911 Billing was in breach of its contract
with the Ambulance Service for failing to respond to Watts’ inquiries and failing to
provide necessary training for him. The Board then authorized its attorney to write a
letter to 911 Billing stating that the billing service was in breach of contract.
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Representatives from 911 Billing attended the Board’s February 2011 meeting.
At that meeting, 911 Billing provided the Board a number of emails between itself and
Watts. These emails showed that the billing service had provided Watts an entry log
each week and had been in regular contact with Watts regarding training and other
issues.
These emails also indicated that the billing service had failed to receive
responses from Watts to many of its communications.
According to Murphy, it became obvious to the Board that Watts had been
untruthful about the billing service being in breach of contract. The Board’s attorney
apologized to 911 Billing, acknowledging that it was clear he and the Board had made a
mistake. Murphy says that when Watts was given a chance for rebuttal at that meeting,
he responded, “I am not prepared to talk right now.” (Docket No. 54-6, at 4.)
Watts states that his efforts to point out 911 Billing’s inefficiencies were met
with anger by Murphy because of Murphy’s “budding friendship and/or other
relationship(s) with 911 Billing Services employee Beverly Basham Simmons.”
(Docket No. 58, at 2.) Watts insists that despite claiming the relationship with Simmons
was “totally professional,” there was more to Murphy’s relationship with Simmons.
(Docket No. 58, at 2-3.) Watts posits that “Murphy was able to get the other members
of the Board to side with him on the issues pertaining to 911 Billing Services in order to
protect the continued employment of his ‘special friend’ at 911 Billing Services.”
(Docket No. 58, at 2.)
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Other issues
Defendants raise a number of additional issues relative to Watts’ performance as
Director.
First, Murphy testified that after the February 2011 meeting, the Board
“started looking into every aspect of what was going on,” and found that the accounting
service used by the Ambulance Service also was having trouble contacting Watts.
(Docket No. 54-6, at 4.) Watts testified that he had a good relationship with the
accounting service and “wasn’t aware of any problems.” (Docket No. 58-1, at 25, 27.)
Second, Murphy states that Watts, while Director, was expected to participate in
emergency runs multiple times per week in order to assess the paramedics and EMTs he
supervised. Contrary to this expectation, however, Murphy says that Watts “only made
a handful of runs” while Director. (Docket No. 54-3, at 3.) According to Murphy,
Watts was confronted sometime after the February 2011 meeting and asked how many
runs he had participated in during the prior month. Murphy says that Watts responded
he had been on roughly seventeen runs; the run records, however, showed that Watts
had only been on one run. In his deposition, Watts acknowledged that his name would
appear on a run report if he had been part of that run, but he could not recall with any
specificity either the approximate or average number of runs he participated in while
Director. (See Docket No. 54-5, at 20-21.)
Watts also acknowledged that the Board
came to him with complaints about the run reports. (See Docket No. 54-5, at 48.)
Third, after the Ambulance Service moved locations, the Board asked Watts to
obtain a sign for the front of the Ambulance Service’s new building.
Watts
acknowledged in his deposition that the Board had instructed him to obtain a sign for
the new facility. (Docket No. 54-5, at 58.) Watts also conceded that despite the
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Ambulance Service having moved to its new location in July 2010, he still had not
obtained a sign as of June 2011.
Fourth, Murphy states that in May 2011, he arranged a training session with 911
Billing Services for the Ambulance Service’s employees. Murphy says that he intended
to use this training as an opportunity to get Watts and Simmons, the 911 Billing
Services employee who had presented the emails at the February 2011 Board meeting,
to work together. Murphy testified that Watts “shook his finger in my face and said that
he was director and he was in charge.” (Docket No. 54-6, at 13.) Watts characterizes
this incident as an “occasion where [Murphy] was embarrassed by [Watts] in front of
his special friend, which magnified his anger toward [Watts] and increased his
motivation to terminate [Watts] based on his gender.” (Docket No. 58, at 6.)
Watts’ claims
In his original Complaint, Watts set forth eight claims based on the termination
of his employment with the Ambulance Service:
Count 1:
sex discrimination and/or creation of a hostile work
environment in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq.;
Count 2:
unlawful discharge in violation of the False Claims Act, 31
U.S.C. § 3730;
Count 3:
sex discrimination and/or creation of a hostile work
environment in violation of the Kentucky Civil Rights Act,
Ky. Rev. Stat. § 344.010 et seq.;
Count 4:
breach of contract;
Count 5:
slander;
Count 6:
civil conspiracy;
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Count 7:
tortious interference with a contract;
Count 8:
unlawful discharge in violation of Health Insurance
Portability and Accountability Act (HIPAA) regulation 45
C.F.R. § 160.316.
By Order of February 12, 2013, the Court granted in part Defendants’ Motion to
Dismiss and dismissed original Counts 2 (unlawful discharge in violation of the False
Claims Act) and 8 (unlawful discharge in violation of HIPAA regulations). (Docket No.
26.) Watts thereafter amended his Complaint to add counts for wrongful discharge in
violation of public policy, a group tort of outrage/intentional infliction of emotional
distress (IIED) against all Defendants, and an individual tort of outrage/IIED against
Murphy. (See Docket No. 51.) Thus, after the Court’s Order of partial dismissal and
under Watts’ Amended Complaint, the following claims remain:
Count 1:
sex discrimination and/or creation of a hostile work
environment in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq.;
Count 2:
sex discrimination and/or creation of a hostile work
environment in violation of the Kentucky Civil Rights Act,
Ky. Rev. Stat. § 344.010 et seq.;
Count 3:
breach of contract;
Count 4:
slander;
Count 5:
civil conspiracy;
Count 6:
tortious interference with a contract;
Count 7:
wrongful discharge in violation of public policy;
Count 8:
group tort of outrage/IIED;
Count 9:
individual tort of outrage/IIED.
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The crux of the majority of Watts’ claims is that Murphy solicited former
Ambulance Service employees Sara Maki and Sarah Mink-Taylor to levee false sexual
harassment claims against Watts in exchange for reemployment with the Ambulance
Service. Watts specifically alleges that “Murphy, acting alone or in concert with one or
more of the other defendants in this action, conspired to fabricate false statements
relating to a purported sexual harassment claim(s) . . . to damage [Watts’] reputation and
provide justification for terminating Watt’s [sic] employment.” (Docket No. 58, at 6-7.)
Both Maki and Mink-Taylor have been deposed in this matter. Maki was hired
by the Ambulance Service as an EMT in 2007. (Docket No. 58-2, at 5.) While
employed there, she worked with both Watts and Mink-Taylor. Maki was terminated at
Watts’ recommendation in early 2011. (Docket No. 58-2, at 5.) Mink-Taylor began
working for the Ambulance Service as a paramedic in 2006. (Docket No. 58-7, at 4.)
Mink-Taylor was terminated on March 14, 2011. (Docket No. 58-7, at 5.) Mink-Taylor
was called back to cover one shift when the Ambulance Service was shorthanded
sometime in May 2011. (Docket No. 58-7, at 5, 11.) She did not receive a higher rate
of pay for this shift than she had previously earned. (Docket No. 58-7, at 7.) MinkTaylor testified she was not called back again and was not rehired by the Ambulance
Service. (Docket No. 58-7, at 5, 11.)
Maki testified that she was contacted first by Mink-Taylor, who encouraged her
to “get in line with [Mink-Taylor] and a few others” and file a sexual harassment claim
against Watts. (Docket No. 58-2, at 6.) Maki says she was then contacted by Bill
Adams, Watts’ predecessor as Director, and then by Murphy. (Docket No. 58-2, at 7.)
Maki testified that Murphy told her “if [she] would just sign a couple of pieces of
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paper,” she could have her job back and receive higher pay than she had before.
(Docket No. 58-2, at 8.) She says Murphy specifically wanted her to sign a statement
saying she “had received unwanted sexual advances from [Watts] . . . [a]nd that [her]
employment was conditioned on sexual favors and things like that.” (Docket No. 58-2,
at 8.) When Maki told Murphy that those claims were not true, she says Murphy
encouraged her to lie. (Docket No. 58-2, at 8-9.) Maki’s conversations with MinkTaylor, Adams, and Murphy all took place on the same day, and she had no further
conversations with any of them. Maki memorialized these conversations in a sort of
diary entry. (Docket Nos. 58-2, at 10; 58-3.) Maki denied having any conversation
with Defendants Young, Gilland, Denney, or Sims.
Maki repeatedly and emphatically testified that Murphy initiated the contact her
by calling her:
A. . . . I hung up the phone with [Bill Adams], and then
that’s when I was contacted by Rod Murphy.
....
Q. Did you ever call Rod [Murphy]?
A. No.
Q. Have you ever called Rod [Murphy]?
A. Not that I’m aware of.
Q. Would you -- wouldn’t you remember?
A. Well, I mean, yeah, I don’t -- I didn’t call him.
Q. You’ve never called him?
A. Not that -Q. Yes or no?
A. That would be a “no.”
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(Docket No. 58-2, at 7, 21.) She subsequently clarified that she had called Murphy
back later that same day and left a voicemail telling Murphy not to call her again.
(Docket No. 58-2, at 24.) Maki’s phone records, however, appear to contradict this
version of events. According to those records, Maki called Murphy once on May 24,
2011. (See Docket No. 54-3, at 2.) These records do not show that Murphy called her
or that she called Murphy again later that day, as she testified.
Mink-Taylor acknowledges that she called Maki on May 24, 2011, but says that
the purpose of her conversation was to say that she had heard Watts was going to be
terminated and to ask whether Maki was planning to attend the Ambulance Service
Board meeting. (Docket No. 58-7, at 6.) Mink-Taylor denies either telling Maki that
Watts had sexually harassed her or asking Maki if Maki had been sexually harassed by
Watts. (Docket No. 58-7, at 12.) She also denies either asking or telling Maki to make
a sexual harassment claim against Watts. (Docket No. 58-7, at 12).
Mink-Taylor also acknowledges that she had a telephone conversation with
Murphy but denies that they discussed her pursuing a sexual harassment claim against
Watts.
(Docket No. 58-7, at 6-7.)
Mink-Taylor states that the purpose of her
conversations with Murphy was to discuss the possibility of getting her job back at the
Ambulance Service. (Docket No. 58-7, at 6.) She did not recall Murphy asking her any
questions that would be consistent with him investigating sexual-harassment-type
behavior by Watts; however, she adamantly denied that Murphy asked her to make a
sexual harassment claim against Watts. (Docket No. 58-7, at 7 (“Q. At any point did
Rod Murphy ask you to consider making a sexual harassment complaint against Kenny
Watts? A. Absolutely not; no sir.”).) Mink-Taylor further denied ever agreeing to make
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sexual harassment claims against Watts in exchange for reemployment. (Docket No.
58-7, at 11.)
Murphy, for his part, acknowledges that he had been called by Mink-Taylor
several times about her wanting to come back to work at the Ambulance Service.
(Docket No. 54-6, at 10.)
Murphy also acknowledges having one telephone
conversation with Maki, but testified that he did not initiate that conversation with her.
(Docket No. 54-6, at 11.) Murphy denies asking Maki to make a sexual harassment
claim against Watts. (Docket Nos. 54-3, at 4; 54-6, at 12.)
In addition to the claims that relate directly to his termination, Watts also alleges
that after his termination Defendants published false statements about him “by telling
other members of the community of the reasons for his termination.” (Docket No. 58.)
These slander claims appear to be directed only at Defendants Murphy and Gilland.
(See Docket Nos. 51, at 8-9; 58, at 45-46.)
After the June 2, 2011, Board meeting, Murphy gave an interview to Bobbie
Foust, a reporter for the Herald Ledger newspaper. (See Docket No. 54-3, at 43.) In
that article, titled “Murphy Outlines Causes Behind Watts’ Dismissal,” Murphy
identified several reasons for Watts’ termination, including the issue with the lost
Medicare checks, a lack of timeliness in implementing the Board’s requests, Watts’
desire to terminate the Ambulance Service’s contract with 911 Billing, Watts’ failure to
erect a sign and mailbox after the Ambulance Service moved locations, Watts’ not being
forthcoming, and incorrectly filled out run forms. (Docket No. 54-3, at 43.) When
asked in his deposition, “Was there anything to your mind [in the Herald Ledger article]
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that specifically sticks out as being false?” Watts responded, “Not specifically to my
mind.” (Docket No. 58-1, at 41.)
In regard to Defendant Gilland, Watts alleges that Gilland made false statements
about him after his termination to Richard Smith, the Lyon County Emergency
Management Deputy Director, and to Brad Ritchie, a local firefighter and friend of
Watts. Watts has submitted Smith’s affidavit in response to Defendants’ Motion for
Summary Judgment; however, neither Smith nor Ritchie have been deposed.
In his affidavit, Smith states that Gilland visited him on June 5, 2011, and
“began talking about the termination of [Watts], how it had upset a lot of people and
about other unresolved problems associated with it such as 911 charges, Medicare
issues, etc.” (Docket No. 58-11, at 1.) Smith avers that “[d]uring this conversation Mr.
Gilland said something to the effect of ‘I don’t know but I have been told that there may
be some sexual harassment charges brought against Kenny Watts.’” (Docket No. 58-11,
at 2.) Watts testified in his deposition that Smith called him after speaking to Gilland.
(Docket No. 58-1, at 43.) Watts states that this was the first time he had heard anything
about sexual harassment charges. (Docket No. 58-1, at 43.) Gilland, in his affidavit,
acknowledges speaking to Smith, stating: “After Plaintiff’s termination, I went to the
home of [Smith] to discuss his attendance at the Board Meeting of June 2, 2011, when
[Watts] was terminated. Mr. Smith had been critical of the Board at the meeting and I
sought an explanation of his position.” (Docket No. 54-4, at 3.) However, Gilland
denies telling Smith that any Ambulance Service employees were planning on bringing
sexual harassment charges against Watts. (Docket No. 54-5, at 3.)
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According to Watts, Gilland made certain comments to Ritchie when Ritchie
went to Gilland’s barbershop. (See Docket No. 58-1, at 44.) Watts says that Ritchie
told him that Gilland had said to Ritchie that there were sexual harassment charges but
that those charges had been dropped because of Watts’ termination. (Docket No. 58-1,
at 44.) In his affidavit, Gilland states: “I vaguely remember Brad Ritchie being in my
barbershop and asking about [Watts’] termination. I told him that there was information
of which the general public was not privy supporting [Watts’] termination. I did not tell
him there were sexual harassment charges against Mr. Watts that were dropped because
of Mr. Watts’ termination.” (Docket No. 54-4, at 3.)
JURISDICTION
United States District Courts have “federal question” jurisdiction “of all civil
actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. In addition to federal question jurisdiction, district courts have “supplemental
jurisdiction over all other claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy.” § 1367(a).
Thus, a district court is granted jurisdiction to hear causes of action arising under state
law so long as those claims “form part of the same case or controversy” giving rise to
the court's federal question jurisdiction.
Although district courts are granted supplemental jurisdiction under § 1367(a),
they may, in their discretion, decline to exercise that jurisdiction for the reasons listed in
§ 1367(c). Specifically, a district court may decline jurisdiction over a supplemental
state law claim where the court “has dismissed all claims over which it has original
jurisdiction.” § 1367(c)(3). The Sixth Circuit instructs that “generally, ‘if the federal
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claims are dismissed before trial . . . the state claims should be dismissed as well.’”
Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993) (quoting
Taylor v. First of Am. Bank–Wayne, 973 F.2d 1284, 1287 (6th Cir. 1992)). When
deciding whether to decline jurisdiction under § 1367(c)(3), a district court must weigh
several factors and “should consider the interests of judicial economy and the avoidance
of multiplicity of litigation and balance those interests against needlessly deciding state
law issues.” Id. (citing Aschinger v. Columbus Showcase Co., 934 F.2d 1402, 1412 (6th
Cir. 1991)). If a district court declines jurisdiction over a supplemental state law claim,
it must dismiss the case if it was originally brought as a federal action or otherwise
remand to the state court from which it was removed.
STANDARD
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). “[N]ot every issue of fact or conflicting inference presents a genuine
issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.
1989). The test is whether the party bearing the burden of proof has presented a jury
question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.
1996). The plaintiff must present more than a mere scintilla of evidence in support of
his position; he must present evidence on which the trier of fact could reasonably find
for him. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). “[T]he
mere existence of a colorable factual dispute will not defeat a properly supported
motion for summary judgment. A genuine dispute between the parties on an issue of
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material fact must exist to render summary judgment inappropriate.” Monette v. Elec.
Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by
Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012). In determining
whether summary judgment is appropriate, a court must resolve all ambiguities and
draw all reasonable inferences against the moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Still, “[a] party asserting that a
fact cannot be or is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . or showing that the materials cited do not
establish the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1).
DISCUSSION
Although only Count I gives rise to this Court’s federal question jurisdiction,
Defendants move for summary judgment on each of Watts’ nine claims. The Court,
therefore, will begin its discussion with Watts’ Title VII claim before deciding whether
to exercise supplemental jurisdiction over Watts’ state law claims in Counts II – IX.
I.
Title VII
In Count I, Watts alleges that he was subjected to unwelcome harassment
because of his gender, in that the Defendants discharged and/or created a hostile work
environment in violation of 42 U.S.C. § 2000e-2(a)(1) by terminating him because of
false allegations of sexual harassment that were manufactured at Murphy’s request.
Watts claims that the other Defendants knew of this harassment but failed to promptly
take corrective action by properly investigating the false claims levied by Mink-Taylor,
thereby creating a hostile work environment. (Docket No. 51, at 5-6.)
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Defendants argue at the outset that Watts cannot maintain Count I against the
individual named Defendants. Defendants are incorrect on this point. Defendants
correctly cite Bangas v. Potter for the proposition that “[t]he law is clear in this circuit
that individual liability may not be imposed on an employee, provided that the
employee himself cannot be classified as an ‘employer,’ under Title VII.” 145 F. App’x
139, 141 (6th Cir. 2005) (citing Wathen v. Gen. Elec. Co., 115 F.3d 400, 405 (6th Cir.
1997)). Title VII’s definition of “employer” includes “political subdivisions.” 42
U.S.C. § 2000e(a)–(b). The Ambulance Service Board is, by statute, “a political
subdivision of the Commonwealth.” Ky. Rev. Stat. § 65.664. Title VII’s definition of
employer also includes “any agent of such a [political subdivision].”
42 U.S.C.
§ 2000e(b) (emphasis added). Defendants do not dispute—indeed, Defendants argue—
that the Board members are agents of the Board.
(Docket No. 54-1, at 33-34.)
Accordingly, the Court declines to dismiss the individual Defendants on this Count.
A.
Hostile Work Environment
Title VII prohibits an employer from discriminating “against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). A plaintiff may establish a Title VII violation by proving that the discrimination
based on sex created a hostile work environment. See Williams v. Gen. Motors Corp.,
187 F.3d 553, 560 (6th Cir. 1999) (citing, e.g., Meritor Savings Bank v. Vinson, 477 U.S.
57, 66 (1986)). Title VII’s protections against hostile work environments extend not
only to females but also to males, such as Watts. Oncale v. Sundownder Offshore
Servs., Inc., 523 U.S. 75, 79 (1998). This form of discrimination occurs “[w]hen the
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workplace is permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.” Williams, 187 F.3d at 560 (alteration in
original) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “But conduct
that is not severe or pervasive enough to create an objectively hostile or abusive work
environment—an environment that a reasonable person would find hostile or abusive—
is beyond Title VII’s purview.” Berryman v. SuperValu Holdings, Inc., 669 F.3d 714,
717 (6th Cir. 2012) (internal quotation marks omitted) (quoting Harris, 510 U.S. at 21).
Thus, to be sufficiently “severe or pervasive,” (1) the conduct must be enough to create
an environment that a reasonable person would find hostile or abusive, and (2) a
plaintiff must subjectively regard the environment as abusive. Stanley v. Cent. Ky.
Cmty. Action Council, Inc., 2013 WL 3280264, at *4 (W.D. Ky. June 27, 2013) (citing
Harris, 510 U.S. at 21).
Whether an environment is hostile or abusive can be
determined only by looking at the totality of the circumstances, including “the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Harris, 510 U.S. at 23.
To establish a prima facie case of discrimination based on hostile work
environment, a plaintiff must demonstrate that (1) he is a member of a protected class;
(2) he was subjected to harassment, either through words or actions, based on his sex;
(3) the harassment had the effect of unreasonably interfering with his work performance
and creating an objectively intimidating, hostile, or offensive work environment; and (4)
there exists some basis for liability on the employer. E.g., Gallagher v. C.H. Robinson
Page 17 of 36
Worldwide, Inc., 567 F.3d 263, 270 (6th Cir. 2009); Grace v. USCAR, 521 F.3d 655, 678
(6th Cir. 2008).
In the Court’s prior Opinion addressing Defendants’ motion to dismiss, the
Court expressed its reservations as to the viability of Watts’ hostile work environment
claim:
The Court has substantial doubt whether Watts’ allegations are
sufficient to state a Title VII claim for discrimination based on
hostile work environment. However, in construing the facts in the
light most favorable to Watts and accepting the allegations in his
Amended Complaint as true, the Court is hesitant to dismiss Watts’
claim at this juncture; rather, despite considerable pause, the Court
feels that additional discovery is warranted to flesh out the merits
of his allegations. Accordingly, though not without hesitation, the
Court will DENY the Ambulance Service’s Motion to Dismiss
Watts’ Title VII hostile work environment claim at this time.
(Docket No. 26, at 12.)
Watts presently argues that he “was subject to unwelcome harassment because
of his gender in that the Ambulance Service . . . created a hostile work environment . . .
by terminating him on the basis of false accusations of sexual harassment, which were
solicited and/or known by members of the Lyon County Ambulance Service Board of
Directors.” (Docket No. 58, at 30.) He insists that “[b]ut for the fact that he was a
male, the defendants would not have contacted a former female employee to fabricate
these charges.” (Docket No. 58, at 30.) Watts’ conclusory allegations in this regard are
wholly insufficient to withstand summary judgment on his hostile work environment
claim.
Watts clings to his assertion that Mink-Taylor agreed to make false sexual
harassment claims against him in exchange for reemployment with the Ambulance
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Service. This assertion, however, is without evidentiary support. There is no evidence
that any such claims were ever filed by Mink-Taylor against Watts. There similarly is
no evidence that Mink-Taylor ever lodged a complaint, even informally, about Watts
sexually harassing her. Mink-Taylor testified unequivocally in her deposition that Watts
never sexually harassed her and that she never asserted that he had. (Docket No. 58-7,
at 6.)
Mink-Taylor also testified that Murphy did not ask her to make a sexual
harassment claim against Watts. (Docket No. 58-7, at 7.) Further, although she was
called back for one shift, there is no evidence to suggest that Mink-Taylor was, or has
been, reemployed by the Ambulance Service.
Thus, Watts’ hostile work environment claim hinges on a single phone call
between Murphy and Maki. In both his deposition testimony and affidavit, Murphy
denies asking Maki to make a sexual harassment claim against Watts. (Docket Nos. 543, at 4; 54-6, at 12.) Even assuming the truth of Maki’s testimony to the contrary, the
single conversation in which Murphy allegedly attempted to recruit Maki to make a
false claim against Watts is inadequate to prove a Title VII hostile work environment
claim. This one phone call is a far cry from harassing conduct that is “severe or
pervasive enough to create an objectively hostile or abusive work environment.” See
Harris, 510 U.S. at 21; Berryman, 669 F.3d 714. And, again assuming the truth of
Maki’s testimony, Watts has offered nothing more than conclusory assertions to show
that he was subjected to harassment based on his sex. Accordingly, Watts cannot satisfy
the second prong necessary to maintain his hostile work environment claim.
Furthermore, Watts has offered no evidence to show that “the harassment had
the effect of unreasonably interfering with [his] work performance and creating an
Page 19 of 36
objectively intimidating, hostile, or offensive work environment” See Gallagher, 567
F.3d at 270; Grace, 521 F.3d at 678. By his own admission, Watts had no knowledge of
Murphy’s alleged solicitation of Maki or Mink-Taylor until several days after he was
terminated. (See Docket No. 58-1, at 43.) It simply does not follow that the claimed
harassing conduct could have had any effect on Watts’ work performance or work
environment when he was not aware of that conduct during his employment with the
Ambulance Service. See Abeita v. TransAm. Mailings, Inc., 159 F.3d 246, 249 n.4 (6th
Cir. 1998) (dismissing as irrelevant to a hostile work environment claim testimony
concerning harassing conduct about which the plaintiff was unaware during her
employment); see also Stanley, 2013 WL 3280264, at *5 (“To be sufficiently ‘severe or
pervasive,’ . . . a plaintiff must subjectively regard the environment as abusive.”)
Therefore, in view of the totality of the circumstances at hand, the Court is
satisfied that Watts’ hostile work environment claim cannot withstand summary
judgment. The alleged harassing conduct is limited to a single episode, was not even
made directly to Watts, and was unknown to Watts until after his employment with the
Ambulance Service had ended. There is no evidence that any sexual harassment claims
were ever made against Watts. In sum, Watts’ allegations and the evidence of record
simply do not fit the mold for a Title VII hostile work environment claim.
B.
Sex Discrimination
The remainder of Watts’ Title VII claim alleges that the Ambulance Service
discriminated against him by terminating him, based on false accusations of sexual
harassment, because of his role as a male supervisor. In addressing Defendants’ motion
Page 20 of 36
to dismiss, the Court expressed similar concern in regard to the viability of Watts’ sex
discrimination claim:
Again, the Court has substantial doubt whether Watts’ allegations
state a viable claim of sex discrimination under Title VII. But, for
the same reasons stated above in relation to his hostile work
environment claim, the Court feels that some discovery is
warranted to flesh out the merits of Watts’ allegations.
Accordingly, the Court will DENY the Ambulance Service’s
Motion to Dismiss Watts’ Title VII sex discrimination claim at this
time.
(Docket No. 26, at 13.)
To establish a prima facie case of sex discrimination under Title VII, a plaintiff
must show that (1) he is a member of a protected class; (2) he was qualified for the job;
(3) he experienced an adverse employment action; and (4) he was replaced by someone
outside of the protected class. E.g., Simpson v. Vanderbilt Univ., 359 F. App’x 562, 568
(6th Cir. 2009); Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008).
However, because Watts is male, the first and fourth prongs are modified under the socalled “reverse-sex discrimination” scheme. To satisfy the modified first prong, Watts
must “demonstrate background circumstances [to] support the suspicion that the
[Ambulance Service] is that unusual employer who discriminates against the majority.”
Simpson, 359 F. App’x at 569 (first alteration in original) (quoting Sutherland v. Mich.
Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003)). And to satisfy the modified
fourth prong, Watts must show that the Ambulance Service “treated differently
employees who were similarly situated but were not members of the protected class”
Id. (citing Sutherland, 344 F.3d at 614). Watts’ disparate treatment claim fails because
he can satisfy neither of these modified prongs.
Page 21 of 36
First, Watts has offered no evidence to show that the Ambulance Service is that
unusual employer who discriminates against men.
In fact, Watts testified in his
deposition that the Board did not discriminate against men. 1 Second, Watts has offered
nothing to show that he was treated differently than similarly situated, nonprotected
employees. The parties seem to agree that Watts was not similarly situated with any
other employee. Again, Watts’ own testimony undercuts any argument that he was
treated differently than any other employee. More importantly, the Ambulance Service
replaced Watts with another Lyons, another male. See Alexander v. Ohio State Univ.
Coll. of Soc. Work, 429 F. App’x 481, 487 (6th Cir. 2011) (holding that a Title VII
plaintiff “cannot establish a prima facie case of discrimination because he was not
‘replaced by someone outside the protected class.’” (quoting Wright v. Murray Guard,
Inc., 455 F.3d 702, 707 (6th Cir. 2006))). For these reasons, the Court finds that Watts’
sex discrimination claim cannot withstand summary judgment.
*****
Having found that Defendants are entitled to summary judgment on Watts’ Title
VII claims, the Court now must now determine whether to exercise supplemental
jurisdiction over Watts’ remaining state law claims in Counts II through IX. Under 28
1
In his deposition, Watts testified:
Q.
A.
Q.
A.
Q.
A.
. . . Did you -- do you feel like the board, as the employer or who
the employees answer to, treated females more favorably than
males?
No.
Okay. While you were there and your tenure of working there as
a paramedic and then as the director, did you feel that the board
had a history of treating males less favorably than females?
Not that I’m aware of.
Okay. Did you feel you were ever treated differently than a
female employee in a similar situation?
No.
(Docket No. 54-5, at 38.)
Page 22 of 36
U.S.C. § 1367(c), a district court may decline jurisdiction where it has dismissed the
claims giving rise to its federal question jurisdiction. As noted above, this Circuit’s
precedent instructs that “if the federal claims are dismissed before trial . . . the state
claims should be dismissed as well.” Landefeld, 994 F.2d at 1182 (quoting Taylor, 973
F.2d at 1287). In deciding whether to decline jurisdiction under § 1367(c)(3), the Court
must consider the interests of judicial economy and the avoidance of multiplicity of
litigation, and must balance those interests against this Court needlessly deciding state
law issues. See id.; Aschinger, 934 F.2d at 1412. Discovery is now complete, and this
action is approaching a trial date only a few months away.
Additionally, Watts’
remaining claims do not present particularly novel questions of state law, such that this
Court would needlessly intrude upon the adjudication of state law issues best reserved
for the state’s courts. In weighing these considerations, the Court finds that the interests
of judicial economy would best be served by this Court continuing to exercise
supplemental jurisdiction over Watts’ remaining state law claims. Accordingly, the
Court will proceed to address Defendants’ Motion for Summary Judgment as it relates
to those claims.
II.
Kentucky Civil Rights Act
Watts alleges violations of the Kentucky Civil Rights Act (KCRA), Ky. Rev.
Stat. § 344.010 et seq., which parallel his Title VII sex discrimination and hostile work
environment claims. Because “the general purpose of the [KCRA] is to provide a
means for implementing within the state the policies embodied in Title VII,” federal
courts look to federal law under Title VII in construing the KCRA. Stanley, 2013 WL
3280264, at *5 (quoting Wathen, 115 F.3d at 403 n.5); see also Brewer v. Gen. Drivers,
Page 23 of 36
Warehouseman & Helpers Union 89, 190 F. Supp. 2d 966, 974 (W.D. Ky. 2002)
(“Because the Kentucky Civil Rights Act was based upon, and is virtually identical to,
Title VII of the federal Civil Rights Act of 1964, courts in Kentucky have followed
federal law in interpreting and applying its statute.”). Watts’ KCRA claims, therefore,
are analyzed under the same framework as his Title VII claims. For the same reasons
Defendants are entitled to summary judgment pertaining to Title VII, see discussion
supra Part I, they likewise are entitled to summary judgment on Watts’ KCRA claims.
III.
Breach of Contract
Watts alleges that he had a valid contract with Defendants for his services as
Director of the Ambulance Service and that Defendants breached that contract by
terminating him unjustly. (See Docket No. 51, at 7.) Watts acknowledged in his
deposition that he did not have a written employment contract. (Docket No. 54-5, at 27,
40.) Watts insists, nonetheless, that his “contract of employment is memorialized in a
letter sent to the Board’s accounting firm,” which notified the accounting firm of Watts’
May 2010 salary increase. (Docket No. 58; see Docket No. 58-13, at 2.)
Kentucky is an “at will” state. “Under Kentucky law, the ‘terminable at will’
doctrine provides that ‘an employer may discharge his at-will employee for good cause,
for no cause, or for a cause that some might view as morally indefensible.’” Osborn v.
Haley, 2008 WL 974578, at *3 (W.D. Ky. Apr. 8, 2008) (quoting Grzyb v. Evans, 700
S.W.2d 399, 400 (Ky. 1985)). “[I]n the absence of a clear and specific agreement to the
contrary, employment for an indefinite period of time is terminable at will by either
party. Breeden v. HCA Physician Servs., Inc., 834 F. Supp. 2d 616, 619 (W.D. Ky.
2011) (citing Shah v. Am. Synthetic Rubber Corp., 655 S.W.2d 489, 491 (Ky. 1983);
Page 24 of 36
Prod. Oil Co. v. Johnson, 313 S.W.2d 411, 413 (Ky. 1958)); see also Wells v. Huish
Detergents, Inc., 1999 WL 33603335, at *2 (W.D. Ky. Nov. 30, 1999) (“Under
Kentucky law, parties can alter an at-will employment contract only with a clear
statement of their intent to do so.”); McNutt v. Mediplex of Ky., Inc., 838 F. Supp. 419,
421-22 (W.D. Ky. 1993) (recognizing “that absent a clear statement not to terminate
without cause, the assumption is that the parties intended to enter into an ordinary
employment relationship, terminable at the will of either party”).
Watts acknowledged several times in his deposition that he fully understood he
was an at-will employee. (Docket No. 54-5, at 19, 41-42.) He also testified that he felt
he could quit at any time. (Docket No. 54-5, at 43.) There is no “clear and specific
agreement” stating that Watts’ employment was anything other than at will. Thus, the
Court concludes that Watts was an at-will employee when he served as Director of the
Ambulance Service. As an at-will employee, the Ambulance Service was entitled to
terminate Watts for good cause or for no cause at all.
Still, Kentucky courts recognize a public policy exception to the terminable-atwill doctrine where the employee’s termination “is contrary to a fundamental and welldefined public policy . . . evidenced by a constitutional or statutory provision.” Osborn,
2008 WL 974578, at *3 (quoting Grzyb, 700 S.W.2d at 401); see also Firestone Textile
Co. Div. v. Meadows, Ky., 666 S.W.2d 730, 732 (Ky. 1984). “The decision of whether
the public policy asserted meets these criteria is a question of law for the court to
decide, not a question of fact.” Osborn, 2008 WL 974578, at *3 (quoting Grzyb, 700
S.W.2d at 401). Watts argues he was discharged in violation of Title VII. (Docket No.
58, at 45.) In Part I, supra, the Court found that Watts’ Title VII claim could not
Page 25 of 36
withstand summary judgment. As such, the public policy exception to Kentucky’s atwill doctrine is inapplicable.
Having found that Watts was an at-will employee and that no public policy
exception applies, the Court finds, as a matter of law, that there was no breach of
contract by the Ambulance Service. 2 Accordingly, Defendants are entitled to summary
judgment on Watts’ breach of contract claim.
IV.
Slander
Watts alleges that Murphy and Gilland slandered him after his employment. The
essential elements of defamation in Kentucky are “(1) defamatory language; (2) about
the plaintiff; (3) which is published; and (4) which causes injury to reputation.”
Dennison v. Murray State Univ., 465 F. Supp. 2d 733, 749 (W.D. Ky. 2006) (citing
Columbia Sussex Corp. v. Hay, 627 S.W.2d 270, 273 (Ky. Ct. App. 1981)). Truth is a
complete defense; thus, a defendant who can prove the truth of the alleged defamatory
statement cannot be liable for slander. Id. (citing Stringer v. Wal-Mart Stores, Inc., 151
S.W.3d 781, 795-96 (Ky. 2004)). And where the plaintiff is a public figure, he must
show that the defendant made the defamatory statement with “actual malice”—“that is,
with knowledge that it was false or with reckless disregard of whether it was false or
not.” Ball v. E.W. Scripps Co., 801 S.W.2d 684, 689 (Ky. 1990) (quoting N.Y. Times v.
Sullivan, 376 U.S. 254, 279-80 (1964)).
Defendants argue that Watts was a public figure as the Director of a public,
political subdivision of the Commonwealth. Watts does not appear to contest this point
in his Response; indeed, he specifically alleges that Murphy and Gilland acted
2
Defendants present several additional reasons in support of summary judgment on Watts’ breach of
contract claim. Because the Court finds that Watts was terminable at will and that Defendants breached
no contract of employment, these alternative arguments need not be addressed.
Page 26 of 36
“intentionally, maliciously, [and] with reckless disregard for the truth.” (Docket No. 58,
at 46.)
A.
Slander Claim Against Murphy
Watts’ slander claim against Murphy is based upon the statements made by
Murphy to the Herald Ledger newspaper. This claim fails for several reasons. Most
importantly, Watts effectively conceded in his deposition that nothing appearing in the
Herald Ledger article was untrue:
Q. . . . Was there anything to your mind as you sit here
that specifically sticks out as being false?
A. Not specifically to my mind.
(Docket No. 54-5, at 37.) Moreover, Watts has not shown that any statement made by
Murphy was made with either knowledge that it was false or reckless disregard whether
it was false or not. Thus, he has failed to show actual malice. Additionally, despite
summarily claiming in his Response that he “has suffered damage to his reputation,
embarrassment, and ridicule,” (Docket No. 58, at 46), he offers no evidence of injury to
his reputation. For these reasons, his slander claim against Murphy cannot withstand
summary judgment.
B.
Slander Claims Against Gilland
Watts’ slander claims against Gilland are based on statements allegedly made by
Gilland to Smith, the Lyon County Emergency Management Deputy Director, and
Ritchie, a local firefighter. These claims also fail.
As for Ritchie, Watts offers no proof as to the statements Gilland allegedly made
to Ritchie. Ritchie has not been deposed, nor does any sworn statement by Ritchie
Page 27 of 36
appear in the record. Gilland, in his affidavit, denies making the alleged statements to
Ritchie. (Docket No. 54-4, at 3.) Accordingly, this claim cannot survive summary
judgment.
As for Smith, Watts offers Smith’s affidavit, in which Smith states, “Gilland said
something to the effect of ‘I don’t know but I have been told that there may be some
sexual harassment charges brought against Kenny Watts.’” (Docket No. 58-11, at 2.)
Gilland denies telling Smith that any Ambulance Service employees were planning on
bringing sexual harassment charges against Watts. (Docket No. 54-5, at 3.) This claim
fails for several reasons. For one, the Court doubts whether the single equivocal (“I
don’t know but I have been told”), imprecise (“Gilland said something to the effect of”),
and conjectural (“there may be some sexual harassment charges brought”) statement
Smith says Gilland made even amounts to defamatory language. But even assuming it
does, Watts has not shown that this statement was made with either knowledge that it
was false or reckless disregard whether it was false or not. Furthermore, he offers no
evidence to show that any such statement actually injured his reputation. For these
reasons, this claims also cannot withstand summary judgment.
V.
Civil Conspiracy
Watts claims that Murphy, “possibly with assistance from other defendants,”
contacted Mink-Taylor and Maki for the purpose of fabricating false sexual harassment
claims in order to justify terminating him. (Docket No. 58, at 46.) He also claims that
Murphy, again possibly with assistance from the other Defendants, contacted Adams,
the former Director of the Ambulance Service, and Simmons, the 911 Billing employee,
also for the purpose of fabricating false sexual harassment claims against him. (Docket
Page 28 of 36
No. 58, at 47.) Finally, he claims that Murphy and Gilland conspired to defame him.
(Docket No. 58.) Watts does not discuss or cite any applicable case law on civil
conspiracy in his Response; instead, he summarily argues that Murphy and/or other
Defendants conspired against him.
Kentucky law recognizes the tort of civil conspiracy. Fastenal Co. v. Crawford,
609 F. Supp. 2d 650, 662 (E.D. Ky. 2009) (citing Montgomery v. Milam, 910 S.W.2d
237, 239 (Ky. 1995)).
To establish a claim of civil conspiracy, a plaintiff must prove
“a corrupt or unlawful combination or agreement between two or more persons to do by
concert of action an unlawful act, or to do a lawful act by unlawful means.” Peoples
Bank of N. Ky., Inc. v. Crowe Chizek & Co., 277 S.W.3d 255, 261 (Ky. Ct. App. 2008)
(quoting Smith v. Bd. of Educ. of Ludlow, Ky., 94 S.W.2d 321, 325 (Ky. 1936)).
“A conspiracy is inherently difficult to prove. Notwithstanding that difficulty, the
burden is on the party alleging that a conspiracy exists to establish each and every
element of the claim in order to prevail.” James v. Wilson, 95 S.W.3d 875, 896 (Ky. Ct.
App. 2002) (citing Krauss Wills Co. v. Publishers Printing Co., 390 S.W.2d 132, 134
(Ky. 1965)). “In Kentucky, ‘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.’” Christian Cnty. Clerk ex rel. Kem v. Mortg. Elec. Registration
Sys., Inc., 515 F. App’x 451, 458-59 (6th Cir. 2013) (quoting Stonestreet Farm, LLC v.
Buckram Oak Holdings, N.V., 2010 WL 2696278, at *13 (Ky. Ct. App. July 9, 2010);
see also Hogan v. Goodrich Corp., 2006 WL 149011, at *5 (W.D. Ky. Jan. 17, 2006)
(“To support a civil conspiracy claim, some underlying tortious act must be taken.”).
Page 29 of 36
Thus, a civil conspiracy claim that has no tort to be based upon “cannot survive as a
matter of law.” Stonestreet Farm, 2010 WL 2696278, at *5.
Each of Watts’ conspiracy theories fails. Several can be dealt with without
prolonged discussion. First, Watts’ theory that Murphy and Gilland conspired to defame
him fails because, for the reasons discussed in Part IV, supra, there is no underlying
defamation claim upon which to base a civil conspiracy claim. Second, his allegations
that Murphy and/or other Defendants conspired with Adams or Simmons are wholly
without factual support.
These claims rest solely on Watts’ speculative and often
sensationalist interpretation of Murphy’s phone records and the nature of his
relationship with Simmons. As such, these theories are without merit and cannot
survive summary judgment.
Watts’ conspiracy claim relative to Mink-Taylor fails for similar reasons. Watts
surmises that Murphy conspired with Mink-Taylor to levee false sexual harassment
charges against him. 3
Both Murphy and Mink-Taylor deny that any such conversation
took place. (See Docket Nos. 54-3, at 4; 54-6, at 12; 58-7, at 6-7, 11.) Aside from his
own conjectures, there is no evidence that Murphy and Mink-Taylor entered into any
unlawful agreement. And despite Watts’ insistence that Mink-Taylor agreed to make
3
Watts seems to concede in his deposition that he has no evidence to support this claim:
Q.
A.
Q.
A.
Okay. When you make the allegation that [Murphy] contacted
Sara Mink-Taylor, what evidence do you have that that
happened?
At this present time, I -- I don’t have evidence other than the
record that will show that she went back to work after I was fired.
....
Okay. But again, you haven’t talked with Sara Mink-Taylor, and
you don’t know when, if ever, she actually did have this
conversation with Rod Murphy, correct?
Correct.
(Docket No. 54-5, at 33, 36.)
Page 30 of 36
false sexual harassment claims against him, there is no evidence that any such claims
were ever filed. Thus, the Court fails to see the overt act in furtherance of the alleged
conspiracy. Moreover, for the reasons discussed elsewhere in this Opinion, there simply
is no underlying tort on which to base Watts’ civil conspiracy claim.
Summary
judgment is therefore warranted on this theory as well.
Finally, Watts claims that Murphy and/or other Defendants conspired to contact
Maki with the intention of fabricating a false sexual harassment claim against him. The
sole evidentiary basis for this claim is Maki’s testimony. Despite the fact that Maki’s
testimony is riddled with inconsistent statements about who called whom and how
many times she called Murphy, this evidence is insufficient to establish a viable
conspiracy claim. First, there is no concert of action between or among Murphy and
any other Defendant. Even assuming that Murphy did solicit Maki to make false sexual
harassment claims against Watts, it is undisputed that Maki refused. Thus, other than
Watts’ conclusory allegations to the contrary, there is no evidence that Murphy and any
other Defendant participated together in any act in furtherance of the alleged conspiracy.
Second, again for the reasons discussed elsewhere in this Opinion, there is no
underlying tort on which to base this conspiracy claim. For these reasons, this theory
also cannot survive summary judgment.
VI.
Tortious Interference With a Contract
Watts alleges that Murphy, acting alone or in concert with the other Defendants,
“intentionally, unlawfully, and without privilege interfered with Plaintiff’s contract of
employment.” (Docket No. 58.) In support of this claim, Watts does little more than
Page 31 of 36
rehash his allegations relative to Murphy’s phone conversation with Maki. (See Docket
No. 58, at 49-52.)
Kentucky law is clear that a tortious interference claim requires interference and
improper conduct by a third party—that is, a party or its agent cannot interfere with that
party’s own contract. See Harstad v. Whiteman, 338 S.W.3d 804, 814 (Ky. Ct. App.
2011) (“Agents of a party to a contract . . . cannot interfere with that party’s contract.”);
see also AMC of Louisville, Inc. v. Cincinnati Milacron Inc., 2000 WL 33975582, at *5
(W.D. Ky. Jan. 25, 2000) (“Kentucky’s courts have not recognized a claim against a
Defendant for interfering with its own contract . . . .”). It is undisputed that Watts was
employed by the Ambulance Service Board. It also is undisputed that Murphy was the
Board’s chairman and Defendants Young, Gilland, Denney, and Sims were members of
the Board. As such, Murphy and the other Defendants clearly were agents of the Board,
the party to Watts’ claimed contract of employment. It follows that Defendants could
not have tortiously interfered with any contract between Watts and the Board. Thus, no
claim for tortious interference exists.
VII.
Wrongful Discharge in Violation of Public Policy
For this claim, Watts alleges that he was wrongfully terminated in violation of
public policy. To the extent the basis for this claim is the same as that for his Title VII
and KCRA claims, it is preempted and subsumed by those more specific laws. See
Spagnola v. Humana, Inc., 2010 WL 59250, at *9 (W.D. Ky. Jan. 6, 2010) (discussing
Grzyb, 700 S.W.2d at 401; Wilson v. Lowe’s Home Ctr., 75 S.W.3d 229, 239 (Ky. Ct.
App. 2001)). To the extent Watts bases this claim on “his reporting of potential HIPAA
violations,” (see Docket No. 58, at 53), this theory already has been considered and
Page 32 of 36
rejected in the Court’s prior Opinion addressing Defendants’ motion to dismiss. (See
Docket No. 26, at 18-20). To the extent this claim is based on his civil conspiracy
allegations, those issues have been addressed supra Part V and need not be discussed
further. Accordingly, this claim cannot withstand summary judgment.
VIII. Outrage / Intentional Infliction of Emotional Distress
For his final two claims, Watts alleges that the conduct of Defendants, as a
group, and of Murphy, individually, concerning his termination, alleged violation of his
civil rights, and alleged slander was intentional and/or reckless. Kentucky considers the
tort of outrage, or IIED, to be a “gap filler.” Farmer v. Dollar Gen. Corp., 2012 WL
4364108, at *7 (W.D. Ky. Sept. 24, 2012) (citing Rigazzio v. Archdiocese of Louisville,
853 S.W.2d 295, 298–99 (Ky. Ct. App. 1993)). As such, a plaintiff cannot proceed on
an IIED claim where the alleged conduct makes out a claim for another tort for which
emotional distress damages would be available. Id.; see Grace v. Armstrong Coal Co.,
Inc., 2009 WL 366239 at *3–4 (W.D. Ky. Feb. 13, 1999) (dismissing IIED claim where
claims for defamation and wrongful discharge provided for emotional distress
damages).
Watts’ claim against the Defendants as a group is preempted by his Title VII and
KCRA claims because the basis for his IIED claim is the same as for his claims under
Title VII and the KCRA. See, e.g., Bogle v. Luvata Franklin, Inc., 2013 WL 1310753,
at *2 (W.D. Ky. Mar. 28, 2013) (“Kentucky courts have consistently held that where a
plaintiff pursues relief under the Kentucky Civil Rights Act, a claim of IIED based on
the same employer conduct is barred.”); Wiseman v. Whayne Supply Co., 359 F. Supp.
2d 579, 592 (W.D. Ky. Jan. 12, 2004) (dismissing a plaintiff’s IIED claim because the
Page 33 of 36
KCRA preempts it by providing damages for humiliation and person indignity as would
a claim for IIED); Kroger Co. v. Buckley, 113 S.W.3d 644, 646-47 (Ky. Ct. App. 2003)
(“[W]hen a plaintiff prosecutes a KRS Chapter 344 claim and an outrageous conduct
claim concurrently, the former preempts the latter. . . . [A] KRS Chapter 344 claim
preempts a common law IIED/outrageous conduct claim.”); Wilson v. Lowe’s Home Ctr.,
75 S.W.3d 229, 239 (Ky. Ct. App. 2001) (holding that a plaintiff’s “IIED claim against
[his employer] was subsumed by his KRS Chapter 344 claims”). Therefore, Watts’
group outrage/IIED claim arising out of the same events and conduct as his Title VII
and KCRA claims is preempted and must be dismissed.
Though not adequately addressed by either party, it is worth considering
separately whether Watts’ IIED claim against Murphy, individually, is also preempted.
This Court previously has noted that the KCRA “only ‘subsumes’ outrageous behavior
claims against employers, not individuals.” Farmer, 2012 WL 4364108, at *7 (quoting
Hanley v. Chevy Chaser Magazine, LLC, 199 F. App’x 425, 432 (6th Cir. 2006)).
Farmer relied on the Sixth Circuit’s decision in Hanley, which itself relied on the
Kentucky Court of Appeals’ decision in Wilson. There, the Kentucky appellate court
concluded that the fact that a civil rights claim may be filed against an employer does
not prohibit the filing of an IIED claim against the offending individuals against whom
no civil rights claim could have been filed. Wilson, 75 S.W.3d at 239. In this case,
Watts could have and did file civil rights claims against Murphy. As the Court found at
the outset of its discussion supra Part I, Murphy meets the statutory definition for an
“employer” and, therefore, could be subject to liability under Title VII (and by
extension, the KCRA). Consequently, this case is distinguishable from Farmer and
Page 34 of 36
Hanley insofar as here, Watts’ individual IIED claim against Murphy is likewise
preempted by his Title VII and KCRA claims.
But even assuming it were not, Murphy would still be entitled to summary
judgment. To maintain an IIED claim in Kentucky, a plaintiff must show (1) that the
defendant’s conduct was “‘intentional or reckless,’” (2) that his conduct was “so
‘outrageous and intolerable’ that it offends ‘generally accepted standards of decency and
morality,’” and (3) that his conduct “cause[d] severe emotional distress in the victim.”
Hanley, 199 F. App’x at 431 (quoting Humana of Ky., Inc. v. Seitz, 796 S.W.2d 1, 2-3
(Ky. 1990)). Watts’ claim against Murphy does not satisfy the high threshold for IIED
claims. As a matter of law, Murphy’s alleged conduct does not come close to the level
of “atrocious and utterly intolerable” conduct required to satisfy the second element.
Hanley, 199 F. App’x at 432 (quoting Wathen, 115 F.3d at 407). Nor has Watts shown
that Murphy’s alleged conduct caused him severe emotional distress. In short, he has
offered no proof of emotional distress whatsoever. Watts testified in his deposition that
since his termination he has suffered no worsening of his physical condition; has sought
no treatment for anxiety, depression, or any type of mental illness; has sought no
treatment for the increased stress he claims to suffer; and has no appointments
scheduled with any medical provider for any physical or mental condition relating to
this lawsuit. (Docket No. 54-5, at 22-24.) For these reasons also, summary judgment is
appropriate as to Watts’ claims of outrage and IIED.
Page 35 of 36
CONCLUSION
Therefore, having considered the parties’ respective arguments, for the foregoing
reasons, the Court will GRANT Defendants’ Motion for Summary Judgment and enter
judgment in their favor as to all of Watts’ remaining claims. A separate Judgment will
enter concurrently with this Opinion.
Date:
cc:
June 2, 2014
Counsel
Page 36 of 36
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