DEPARTMENT OF CORRECTIONS; NORTHPOINT TRAINING CENTER; DEWEY SOWDERS, INDIVIDUALLY AND CENTER; DON SHEPHERD, INDIVIDUALLY AND AS UNIT DIRECTOR OF NORTHPOINT TRAINING CENTER; TIM NAPIER, INDIVIDUALLY AND AS UNIT DIRECTOR OF NORTHPOINT TRAINING CENTER; AND E. L. SPARKMAN, INDIVIDUALLY AND AS WARDEN OF NORTHPOINT TRAINING CENTER AND KENTUCKY ASSOCIATION OF COUNTIES AND GOVERNOR'S EXECUTIVE CABINET V. DORSEY FURR
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RENDERED: APRIL 20,200O
TO BE PUBLISHED
199%SC-O I!%-DG
1999-SC-03324.X
DEPARTMENT OF CORRECTIONS;
NORTHPOINT TRAINING CENTER;
DEWEY SOWDERS, INDIVIDUALLY AND
AS WARDEN OF NORTHPOINT TRAINING
CENTER; DON SHEPHERD, INDIVIDUALLY
AND AS UNIT DIRECTOR OF NORTHPOINT
TRAINING CENTER; TIM NAPIER,
INDIVIDUALLY AND AS UNIT DIRECTOR
OF NORTHPOINT TRAINING CENTER; AND
E. L. SPARKMAN, INDIVIDUALLY AND AS
WARDEN OF NORTHPOINT TRAINING
CENTER
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:,
:
APPELLANTS/CROSS-APPELLEES
AND
KENTUCKY ASSOCIATION OF COUNTIES
AMICUS CURIAE
AND
GOVERNOR’S EXECUTIVE CABINET
AMICUS CURIAE
ON REVIEW FROM COURT OF APPEALS
97-CA-2550-MR
BOYLE CIRCUIT COURT NO. 95Cl-319
V.
DORSEY FURR
APPELLEE/CROSS-APPELLANT
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING
In this case, we address the single issue of whether the Commonwealth of
Kentucky has waived sovereign immunity for claims brought under the Kentucky Civil
Rights Act. KRS Chapter 344. We hold that it has and affirm the Court of Appeals.
Appellee, Dorsey Furr, filed suit against Appellants alleging gender
discrimination, sexual harassment, and retaliation in violation of the Kentucky Civil
Rights Act. Subsequently, Appellants filed a motion for summary judgment, which the
trial court granted as to Furr’s retaliation claim on grounds that there was no evidence
of adverse or retaliatory action against Furr. The case proceeded to trial on the
underlying issues of gender discrimination and sexual harassment, and the jury
returned a verdict in favor of the Appellants.
Appellants raised the issue of sovereign immunity for the first time on appeal to
the Court of Appeals. See Wells v. Commonwealth Department of Highways, Ky., 384
S.W.2d 308 (1964) (because sovereign immunity can only be waived by the General
Assembly, it can be raised as a defense for the first time on appeal). The Court of
Appeals held that Furr’s claim was not barred by the doctrine of sovereign immunity.
Further, the Court of Appeals reversed the trial court’s grant of summary judgment on
the retaliation claim and affirmed the part of the trial court’s judgment based upon the
jury’s verdict in favor of the Appellants. We granted discretionary review on the issue of
whether the General Assembly has waived sovereign immunity for claims brought under
the Kentucky Civil Rights Act.
The line demarcating where the doctrine of sovereign immunity applied and
where it did not apply was long drawn in shifting sands before we chiseled the line in
stone in Withers v. Universitv of Kentuckv, Ky., 939 S.W.2d 340 (1997). In Withers, we
held, “We will find waiver only where stated ‘by the most express language or by such
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overwhelming implications from the text as [will] leave no room for any other reasonable
construction.“’ Id. at 346 quoting Murrav v. Wilson Distillina Comoany, 213 U.S. 151,
171, 29 S. Ct. 458, 464-65, 53 L. Ed. 742 (1909).
In its brief analysis of this issue, applying the Withers standard, the Court of
Appeals reasoned:
KRS 344.030(2) defines “employer” in pertinent part as “a
person who has eight (8) or more employees within the state
” KRS 344.010(l) defines “person” as used in KRS
Chapter 344 to include “the state. anv of its political or civil
subdivisions or agencies.” (Emphasis added). The very
definition of “person” as adopted by our General Assembly
specifically names the state as an employer for purposes of
KRS Chapter 344, thus effecting a waiver of sovereign
immunity by “overwhelming implication.”
Furr v. Department of Corrections, Ky. App., 1997~CA-002550-MR at 4 (January 29,
1999).
Appellants argue that the above does not create the overwhelming implication of
waiver of sovereign immunity and, thus, the Court of Appeals must be reversed. We
disagree.
In addition to the analysis of the Court of Appeals, we find further support for our
holding in the Kentucky Civil Rights Act itself. One of the purposes of KRS Chapter 344
is:
To safeguard all individuals within the state from
discrimination . . . ; thereby to protect their interest in
personal dignity and freedom from humiliation, to make
available to the state their full productive capacities, to
secure the states against domestic strife and unrest which
would menace its democratic institutions, to preserve the
public safety, health, and general welfare, and to further the
interest, rights, and privileges of individuals within the state.
KRS 344.020(1)(b) (emphasis added).
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These words contain a solemn and hard won promise to all the people of the
Commonwealth. The promise was made by the Commonwealth to its citizens through
the General Assembly. What hollow words indeed if the safeguard against
discrimination does not include the right to be free from of acts of discrimination
committed by the Commonwealth itself, or in its name.
The doctrine of sovereign immunity sweeps broadly. It shields inter alia
counties,’ boards of education,2 public universities, university hospitals and all
“departments, boards or agencies that are such integral parts of state government as to
come within regular patterns of administrative organization and structure.“3 To
immunize the Commonwealth from the application of the Kentucky Civil Rights Act
frustrates the act’s purpose and intent, deprives many of its citizens of its protection,
and renders meaningless its pledge to safeguard all individuals from discrimination.
Such a construction is neither tenable nor tolerable.
Finally, we address the argument that the General Assembly did not intend to
waive sovereign immunity because the remedy provision of KRS 344.450 provides for
neither an express cause of action against the Commonwealth nor an “implied” cause
of action against the Commonwealth. The argument does not withstand scrutiny.
KRS 344.450 is completely silent concerning against whom a cause of action
may be brought. Rather, the statute simply provides a remedy for “any act in violation
of the provisions of this chapter . . . .” Thus, we are directed to the particular acts that
constitute a violation of the chapter in order to determine against whom a cause of
‘Franklin County. Kentucky v. Malone, Ky., 957 S.W.2d 195, 203 (1997).
2Clevinaer v. Board of Education of Pike Countv, KY., 789 S.W.2d 5, 9 (1990).
3Withers,
939 S.W.2d at 344.
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action may be brought-. In this case, the applicable statute provides, “It is unlawful
practice for an employer . . . .‘I KRS 344.040. And as shown above, the definition of
employer includes a “perso,n,”
which is defined to include the state, any of its political or
civil subdivisions, or agencies. KRS 344.01 O(1). Thus, by overwhelming implication,
KRS 344.450 provides a cause of action against the Commonwealth for violations of
the Kentucky Civil Rights Act. This is as it should be.
For the foregoing reasons, the opinion of the Court of Appeals is hereby
affirmed.
Graves, Stumbo, and Wintersheimer, JJ., concur. Cooper, J., dissents by
separate opinion, with Lambert, C.J., and Keller, J., joining that dissent.
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COUNSEL FOR APPELLANTS/CROSS-APPELLEES:
Mark A. Sipek
Department of Corrections
Office of General Counsel
200 State Office Building
Frankfort, KY 40601
COUNSEL FOR APPELLEE/CROSS-APPELLANT:
William C. Jacobs
Linda B. Sullivan
173 North Limestone Street
Lexington, KY 40507
COUNSEL FOR AMICUS CURIAE,
KENTUCKY ASSOCIATION OF COUNTIES:
Brent Caldwell
McBRAYER, MCGINNIS, LESLIE &
KIRKLAND
300 State National Bank Building
P. 0. Box 1100
Frankfort, KY 40602
Richard M. Sullivan
Edward F. Busch
CONLIFFE, SANDMANN & SULLIVAN
325 West Main Street, Suite 2000
Louisville, KY 40202
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COUNSEL FOR AMICUS CURIAE,
GOVERNOR’S EXECUTIVE CABINET:
John W. Conway
Office of the Secretary
Governor’s Executive Cabinet
700 Capital Avenue
Frankfort, KY 40601
Daniel F. Egbers
General Counsel
Personnel Cabinet
200 Fair Oaks Lane, Suite 516
Frankfort, KY 40601
Barbara W. Jones
General Counsel
Justice Cabinet
403 Wapping Street
Frankfort, KY 40601
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RENDERED: APRIL 20,200O
TO BE PUBLISHED
1999-SC-0159-DG
1999-SC-0332-DG
DEPARTMENT OF CORRECTIONS;
NORTHPOINT TRAINING CENTER;
DEWEY SOWDERS, INDIVIDUALLY AND
AS WARDEN OF NORTHPOINT TRAINING
CENTER; DON SHEPHERD, INDIVIDUALLY
AND AS UNIT DIRECTOR OF NORTHPOINT
TRAINING CENTER; TIM NAPIER,
INDIVIDUALLY AND AS UNIT DIRECTOR
OF NORTHPOINT TRAINING CENTER; AND
E. L. SPARKMAN, INDIVIDUALLY AND AS
WARDEN OF NORTHPOINT TRAINING
CENTER
APPELLANTS/CROSS-APPELLEES
AND
KENTUCKY ASSOCIATION OF COUNTIES
AMICUS CURIAE
AND
AMICUS CURIAE
GOVERNOR’S EXECUTIVE CABINET
ON REVIEW FROM COURT OF APPEALS
97-CA-2550-MR
BOYLE CIRCUIT COURT NO. 95-Cl-319
V.
DORSEY FURR
APPELLEEICROSS-APPELLANT
DISSENTING OPINION BY JUSTICE COOPER
The Kentucky Civil Rights Act provides both an administrative remedy and a civil
remedy. The administrative remedy is initiated by a complaint tiled with the
Commission on Human Rights, which has the power to impose certain sanctions,
including affirmative action. KRS 344.200; KRS 344.230(2), (3). The civil remedy is set
forth in KRS 344.450 as follows:
344.450. Civil remedies for injunction and damages. -- &y
person deeming himself injured by any act in violation of the provisions of
this chapter shall have a civil cause of action in Circuit Court to enjoin
further violations, and to recover the actual damages sustained by him,
together with the costs of the law suit, including a reasonable fee for his
attorney of record, all of which shall be in addition to any.other remedies
contained in this chapter. (Emphasis added.)
The issue in this case is whether this statute permits an action in damages to
be
brought against the Commonwealth, i.e., whether the language of KRS 344.450
constitutes a waiver of sovereign immunity established in Section 231 of our
Constitution. The answer is found in KRS 44.072
and
our recent decision in Withers v.
University of Kentuckv, KY., 939 S.W.2d 340 (1997).
KRS 44.072 provides in pertinent part:
The Commonwealth thereby waives the sovereign immunity defense only
in the limited situations as herein set forth. It is further the intention of the
General Assembly to otherwise expressly preserve the sovereign
immunity of the Commonwealth, any of its cabinets, departments,
bureaus or agencies or any of its officers, agents or employees while
acting in the scope of their employment by the Commonwealth or any of
its cabinets, departments, bureaus or agencies in all other situations
exceot where sovereian immunitv is soecificallv and exoresslv waived as
set forth bv statute. (Emphasis added.)
In Withers, we supposedly abandoned what the majority opinion accurately
describes as the “shifting sands” of our prior decisions on the issue of waiver:
We will find waiver only where stated “by the most express language or by
such overwhelming implications from the text as [will] leave no room for
any other reasonable construction.”
Withers, 939 S.W.2d at 346 (quoting Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct.
1347, 1361, 39 L.Ed.2d 662,678 (1974)).
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Unfortunately, the majority opinion in this case has re-embraced rather than
eschewed the “shifting sands” approach to the issue of waiver. Nothing in the language
of KRS 344.450 “specifically and expressly” waives the defense of sovereign immunity.
Nor does the text of the statute create such an overwhelming implication of waiver as to
leave no room for any other reasonable construction. Recognizing that the text of KRS
344.450 “is completely silent concerning against whom a cause of action may be
brought,” slip op., at 4, the majority concludes that such an action may be brought
against the Commonwealth because KRS 344.030(2) defines “employer” as, inter alia,
“a person,” and KRS 344.01 O(1) defines “person” as, inters alia, “the state.”
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,
nothing in those statutes “specifically and expressly” allows an aggrieved party to sue
the state for damages.
Having defined “employer” as a “person” and a “person” as the “state,” the
majority then decides that the state must thus be an employer who can be sued for
damages under KRS 344.450. Unfortunately, the definitions of “employer” and
“person” have no relevance at all in interpreting the language of KRS 344.450. The
statute does not say that “[a]ny person in violation of the provisions of this chapter” may
be sued for damages in Circuit Court. It says that “[a]ny person deeming himself
injured by any act in violation of the provisions of this chapter” may sue for damages in
Circuit Court. The word “person” in KRS 344.450 refers to the aggrieved party, not the
employer.
As noted supra, the Civil Rights Act provides multiple remedies, only one of
which is the right to sue for damages in Circuit Court. Mevers v. Chaoman Printina Co.,
Inc., Ky., 840 S.W.2d 814, 820 (1992). The fact that state agencies might be subject to
other remedies described in the Act does not create an “overwhelming implication”
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leaving “no room for any other reasonable construction” that KRS 344.450 constitutes a
waiver of sovereign immunity. In fact, in light of the unambiguous language of KRS
44.072, a reasonable construction of the Civil Rights Act as a whole is that although
private employers are subject to all of the remedies described in the Act, including
monetary damages, agencies of the Commonwealth are subject only to administrative
sanctions, but cannot be sued for monetary damages in Circuit Court.
Accordingly, I would reverse the Court of Appeals and reinstate the summary
judgment entered by the Boyle Circuit Court.
Lambert, C.J.; and Keller, J., join this dissenting opinion.
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