ROBERT PARKER WILSON v. LOWE'S HOME CENTER, STEVE DUNCAN, CHRIS CHOATE AND TOM PHILLIPS
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RENDERED:
December 28, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002288-MR
ROBERT PARKER WILSON
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
ACTION NO. 99-CI-005234
v.
LOWE'S HOME CENTER,
STEVE DUNCAN, CHRIS CHOATE
AND TOM PHILLIPS
APPELLEES
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
Judge.1
BUCKINGHAM and McANULTY, Judges; and MARY COREY, Special
BUCKINGHAM, JUDGE: Appellant Robert Parker Wilson appeals from a
summary judgment granted by the Jefferson Circuit Court
dismissing his civil complaint against Appellees Lowe’s Home
Center, Steve Duncan, Chris Choate, and Tom Phillips.
Because we
conclude that the trial court erred in awarding the appellees
summary judgment, we affirm in part, reverse in part, and remand.
1
Senior Status Judge Mary Corey sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution.
Wilson, an African-American, began working for Lowe’s
at its Fern Valley store in Jefferson County in November 1991.
He continued to work at the Fern Valley store until he was
transferred to the new Lowe’s store on Dixie Highway in Jefferson
County on June 11, 1999.
Wilson alleged that he had been
subjected to extreme racial remarks, verbal abuse, intimidation,
and harassment nearly every day beginning shortly after he
started working in 1991 and continuing until his transfer to the
new store in 1999.
He alleged the instances involved coworkers
as well as management personnel.
He indicated that his concerns
were brought to the attention of the supervisory personnel who
participated in the alleged actions as well as to other persons
in management who had a responsibility to correct the behavior.
He further alleged that the actions continued despite his
complaints.
On March 31, 1999, Wilson filed a complaint with the
Kentucky Commission on Human Rights (KCHR) alleging racial
discrimination as well as the fact that management had allowed a
racially hostile work environment.2
for December 29, 1999.
The KCHR set a hearing date
Wilson requested to withdraw his
complaint, and on June 8, 1999, the KCHR forwarded a letter to
him with an attached document which, when signed by Wilson, would
have withdrawn his claim.
Because the KCHR apparently provided
an incorrect form to Wilson, on June 22, 1999, it sent a second
letter to him.
The second letter contained a new form for
2
Wilson’s complaint to the KCHR also resulted in an action
being opened with the Equal Employment Opportunity Commission
(EEOC).
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withdrawal of the claim, and Wilson signed it on July 23, 1999.
The document clearly indicated his desire to withdraw his claim
with the KCHR, his request for a “Notice of Right to Sue” from
the EEOC, and his intent to pursue the matter through his private
attorney.
The EEOC subsequently provided Wilson with a “Notice of
Right to Sue” which was dated July 28, 1999.
On August 20, 1999,
the KCHR entered a “Withdrawal Order” which stated that Wilson’s
claim was withdrawn without prejudice to him.3
Thus, as a result
of the documents issued by the KCHR and the EEOC, as of August
20, 1999, Wilson had no action open or pending on his
discrimination complaints.
On September 7, 1999, Wilson filed a three-count civil
complaint in the Jefferson Circuit Court.
The first count,
alleging racial discrimination by Lowe’s management personnel,
sought to impose vicarious liability on Lowe’s under the Kentucky
Civil Rights Act (KRS4 Chapter 344).
The second count, alleging
the creation of a hostile work environment, was also directed at
Lowe’s.
The third count, consisting of a claim of intentional
infliction of emotional distress (IIED), was directed at Lowe’s
as well as each of the three individually named defendants.5
The
3
104 Kentucky Administrative Regulations (KAR) 1:020,
Section 2(6) provides that a complainant may withdraw his
complaint without prejudice so long as written consent is given.
4
Kentucky Revised Statutes.
5
The individually named defendants, Duncan, Choate, and
Phillips, each held management positions at Lowe’s Fern Valley
store at various times during the seven years Wilson worked
there.
-3-
factual background for Wilson’s complaint consisted of the same
facts originally raised in his complaint filed with the KCHR.
On September 13, 2000, the trial court awarded summary
judgment to the appellees.
Concerning Wilson’s claims against
Lowe’s for violations of KRS Chapter 344, the trial court held
that they were barred by the doctrine of election of remedies.
Concerning Wilson’s IIED claims, the court rejected the
appellees’ argument that the claims were barred by the doctrine
of preemption.
However, the court granted the appellees summary
judgment on Wilson’s IIED claim, finding that “the record herein
does not contain sufficient evidence of an egregious character to
survive a motion for summary judgment.”
This appeal by Wilson
followed.
Pursuant to CR6 56.03, a summary judgment “shall be
rendered forthwith if the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law.”
The rule should be “cautiously
applied,” and “[t]he record must be viewed in a light most
favorable to the party opposing the motion for summary judgment
and all doubts are to be resolved in his favor.”
Steelvest, Inc.
v. Scansteel Service Ctr., Inc., Ky., 807 S.W.2d 476, 480 (1991).
“The standard of review on appeal of a summary judgment is
whether the trial court correctly found that there were no
genuine issues as to any material fact and that the moving party
6
Kentucky Rules of Civil Procedure.
-4-
was entitled to judgment as a matter of law.”
Scifres v. Kraft,
Ky. App., 916 S.W.2d 779, 781 (1996).
The first issue is whether the trial court correctly
granted the appellees’ summary judgment on Wilson’s claims
against Lowe’s for civil rights violations.
KRS 344.040
prohibits, among other things, discrimination by an employer
based on an individual’s race.
As we have stated, the court held
that Wilson’s claims were barred by the doctrine of election of
remedies.
KRS Chapter 344 establishes separate avenues for
recovering damages due to civil rights violations.
A party
claiming discrimination may file a complaint with the KCHR
pursuant to KRS 344.200.
The complainant may be awarded damages,
which include “compensation for humiliation and embarrassment,”
under KRS 344.230(3)(h).
However, KRS 344.450 provides an
aggrieved party an alternative remedy of filing a civil action
for damages in circuit court.
Because KRS Chapter 344 creates two separate avenues
upon which a complainant may proceed in an effort to recover
damages, another statute addresses jurisdictional issues that
could arise between the administrative process and the judicial
process.
The applicable statute reads:
The provisions of KRS 13B.140
notwithstanding, commission shall not take
jurisdiction over any claim of an unlawful
practice under this chapter while a claim of
the same person seeking relief for the same
grievance under KRS 344.450 is pending. A
state court shall not take jurisdiction over
any claim of an unlawful practice under this
chapter while a claim of the same person
seeking relief for the same grievance is
pending before the commission. A final
determination by a state court or a final
-5-
order of the commission of a claim alleging
an unlawful practice under KRS 344.450 shall
exclude any other administrative action or
proceeding brought in accordance with KRS
Chapter 13B by the same person based on the
same grievance.
KRS 344.270.
As noted in Berry v. General Electric Co., 541
F.Supp. 800 (W.D. Ky. 1982), the Kentucky legislature created
separate avenues for the enforcement of civil rights violations
and provided that the two avenues are alternative, not identical,
means of obtaining relief.
Id. at 802.
Because Wilson initially filed his complaint with the
KCHR, the trial court held that the doctrine of election of
remedies barred his circuit court claim.
In doing so, the court
relied on Vaezkoroni v. Domino’s Pizza, Inc., Ky., 914 S.W.2d 341
(1995).
In the Vaezkoroni case, the aggrieved employee filed
three separate complaints with the Lexington-Fayette Urban County
Human Rights Commission.
Id.
In each instance, the commission
investigated the allegations, issued a “No Probable Cause”
determination, and dismissed the complaint.
Id.
Following the
dismissal of the complaints by the commission, Vaezkoroni filed a
civil complaint in the Fayette Circuit Court based on the same
allegations.
Id. at 342.
The trial court awarded summary
judgment in favor of the employer, and a panel of this court
affirmed the trial court based on the doctrine of res judicata.
Id.
In affirming the result of this court’s panel for different
reasons, the Kentucky Supreme Court held that the administrative
and judicial avenues of relief in KRS Chapter 344 were
alternative avenues of relief and that it would be absurd to
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allow an individual to choose an administrative remedy and then
have the option of judicial relief.7
Id.
The court also stated
that “[o]nce any avenue of relief is chosen, the complainant must
follow that avenue through to its final conclusion.”
Id. at 343.
Although it was not addressed by the trial court in the
case sub judice in its judgment, the case of Founder v. Cabinet
for Human Resources, Ky. App., 23 S.W.3d 221 (1999), involves
somewhat similar circumstances.
In Founder, an aggrieved state
employee filed a complaint with the Kentucky Department of
Employment Services (DES).
Id. at 222.
When he did not receive
a favorable response from the DES regarding his grievance, the
employee appealed to the Kentucky Personnel Board.
Id.
The
appeals were unsuccessful, and the employee did not appeal any of
the decisions to the circuit court.
Id.
The employee also filed separate complaints with the
EEOC and the KCHR.
Id.
While these complaints were still
pending, the employee filed a civil suit in the Franklin Circuit
Court.
Id.
The circuit court granted summary judgment against
the employee and, on appeal, a panel of this court affirmed the
trial court based on KRS 344.270 (lack of jurisdiction) and the
Vaezkoroni case.
Id. at 224.
The court held that “[f]rom our
reading of the language in KRS 344.270 and Vaezkoroni, once a
complaint is filed with the Commission, a subsequent action in
7
The court also held that the provisions of KRS Chapter 344
apply equally to the KCHR and to local human rights commissions
such as the Lexington-Fayette Urban County Human Rights
Commission. Id. at 342.
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circuit court based on the same civil rights violation(s) is
barred.”
Id. at 223.
At first glance, the Vaezkoroni and Founder cases
appear to support the trial court’s summary judgment ruling and
resolve this matter in favor of Lowe’s.
However, to do so
ignores the factual differences between those cases and the case
sub judice.
The Vaezkoroni case involved an aggrieved employee
who had filed three separate complaints with the local human
rights commission, each of which was pursued to final
determination before that commission.
914 S.W.2d at 341.
Clearly, the employee had completely and unsuccessfully pursued
the administrative avenue of relief to a final determination
before pursuing the judicial avenue.
As the Kentucky Supreme
Court stated, it would be “absurd” to allow the employee an
alternative avenue of relief when the first avenue resulted in
failure.
Id. at 342.
The Founder case involved an employee who
had filed for recovery through the administrative process and
then had filed a civil suit in circuit court while the
administrative proceedings were pending.
23 S.W.3d at 222.
Because KRS 344.270 deprived the circuit court of jurisdiction of
the complaint due to the pendency of the grievances before the
administrative body, this court affirmed the trial court’s
summary judgment in favor of the employer.
Id. at 224.
The facts here present a significantly different
situation from those in Vaezkoroni and Founder.
In this case,
Wilson had neither pursued the administrative avenue to a final
determination nor was any complaint pending with an
-8-
administrative body.
Rather, his KCHR complaint had been ordered
withdrawn and the EEOC had issued a “Notice of Right to Sue.”
Under the doctrine of election of remedies, we conclude that the
factual differences in the cases are such that Wilson’s circuit
court claim was not barred.
According to general authority, jurisdictions differ
concerning whether the commencement of an action constitutes an
election of a remedy which precludes another action.
In some jurisdictions, the beginning of
a suit is an unequivocal act of election.
This rule applies to the filing of an
administrative claim, and an alternative
action in court will be allowed only if the
pending claim is dismissed for administrative
convenience, if the filing of a lawsuit is
not forbidden by statute or regulation, or if
the prejudice to the defendant is truly
minimal.
In other jurisdictions, however, the
mere commencement of an action does not
determine the right to elect between
inconsistent remedies, and the doctrine
applies only when a cause of action is
prosecuted to judgment.
Courts sometimes take the position that
it is the pendency, rather than the
commencement, of an action which precludes
the plaintiff from maintaining another action
for an inconsistent remedy. A second action
may be brought only if the first cause of
action is no longer pending when the second
action is commenced.
25 Am.Jur. 2d Election of Remedies § 14 (1996).
The question
before this court is whether Kentucky law concerning the doctrine
of election of remedies allowed Wilson to withdraw his
administrative claim and file a civil complaint in the circuit
court.
-9-
Two other cases were addressed by the parties to the
trial court but were not referenced to this court in their
briefs.
In Canamore v. Tube Turns Div. Of Chemetron Corp., Ky.
App., 676 S.W.2d 800 (1984), an aggrieved employee filed a
complaint with the EEOC.
Id. at 802.
The EEOC deferred the
charges to the KCHR. Some two years later, with no action having
been taken by the KCHR, the EEOC determined that there was no
reasonable cause to believe the employee’s allegations were true
and issued a “Notice of Right to Sue.”
Id.
There was no
evidence in the record of any KCHR proceeding. Id.
In Canamore,
a panel of this court held that the employee’s civil action in
circuit court was not precluded so long as the employee did not
proceed to federal court and the KCHR never reached a final
determination in the proceeding before it.
Id. at 804.
In
short, the “two bites of the apple” argument was not effective
where the aggrieved employee had never received a final order
from the state’s administrative body, where no administrative
claim was currently pending, and where he elected not to proceed
in federal court.
A fact situation similar to Canamore was presented to
the Kentucky Supreme Court in Clifton v. Midway College, Ky., 702
S.W.2d 835 (1985).
Once again, an aggrieved employee filed a
complaint with the EEOC.
Id. at 836.
The EEOC deferred to the
KCHR which in turn took no action other than to relinquish the
claim back to the EEOC.
Right to Sue” letter.
Id.
Id.
The EEOC then issued a “Notice of
Thereafter, the employee filed suit
against the employer in the circuit court.
-10-
The circuit court
entered a summary judgment in favor of the employer dismissing
the employee’s complaint.
Id.
The circuit court held that the
employee had a claim before the KCHR which precluded her from
filing a civil action in the courts.
Id.
Further, the circuit
court held that the notification received from the EEOC
constituted a final determination by the administrative agency
and that, therefore, the circuit court lacked jurisdiction. Id.
In granting discretionary review of this court’s
opinion affirming the trial court, the Kentucky Supreme Court
reversed.
Clifton, 702 S.W.2d at 838.
The court held that an
individual who has charges of discrimination referred by the EEOC
to the KCHR, but without an order issued by the KCHR, is not
precluded from pursuing a civil action under KRS 344.450.
837.
Id. at
The court noted that the KCHR neither gave consideration to
the charges nor issued any order relating to the employee’s
claim.
Id.
Further, the court noted that “the complainant has
been the victim of a bureaucratic shuffle without the benefit of
any kind of evidentiary hearing on the merits of her charges.”
Id.
In light of our discussion of Kentucky cases involving
the election of remedies for civil rights violations and in light
of the provisions of KRS 344.270, we conclude that Kentucky law
does not prohibit Wilson from filing his civil action in the
circuit court even though he had previously filed a complaint
with the KCHR.
Other Kentucky cases involving the doctrine of
election of remedies support this conclusion.
-11-
In Riley v.
Cumberland & Manchester R. Co., 234 Ky. 707, 29 S.W.2d 3 (1930),
the court acknowledged that:
It is the general rule that as between
actions for damages for breach of a contract
and suits for specific performance that the
mere beginning of the action, or suit, does
not constitute an irrevocable election unless
it has caused an advantage to the plaintiff
or a detriment to the defendant.
Riley, 29 S.W.2d at 4.
In Joseph Goldberger Iron Co. v.
Cincinnati Iron & Steel Co., 153 Ky. 20, 154 S.W. 374 (1913), the
court noted that the institution and dismissal without prejudice
of a civil action in Cincinnati, Ohio, was not a conclusive
election against the maintenance of an action in Kentucky courts.
154 S.W. at 376.
The key fact recognized by the court was that
there had been no judgment or decree in the Cincinnati suit.
Id.
The court stated that “[t]he general rule is that the prosecution
of one remedial right, to judgment or decree, whether the
judgment is for or against the plaintiff, is a decisive act which
constitutes a conclusive election, and bars the subsequent
prosecution of inconsistent remedial rights.”
Id.
Speck v. Bowling, Ky. App., 892 S.W.2d 309 (1995), is a
later case involving the doctrine of election of remedies.
Bowling was injured in an automobile accident when his automobile
was struck by an automobile driven by Speck, a state trooper.
Id. at 310-11.
Bowling initially filed a claim against the
Commonwealth before the Board of Claims, but that complaint was
abandoned.
Id. at 311.
He then filed a civil action against
Speck in the Clay Circuit Court.
Id.
A panel of this court
stated that Bowling had alternative remedies in seeking damages
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in the Board of Claims or seeking damages in circuit court by way
of a tort action.
Id.
The court rejected Speck’s election of
remedies argument and held that Bowling could pursue his circuit
court action even though he had previously filed and abandoned a
Board of Claims action.
Id.
In short, under Kentucky law the
doctrine of election of remedies “means that when a person has at
his disposal two modes of redress, which are contradictory and
inconsistent with each other, his deliberate and settled choice
and pursuit of one will preclude his later choice and pursuit of
the other.”
(Emphasis added.)
Collings v. Scheen, Ky., 415
S.W.2d 589, 591 (1967).
Assuming we are correct in concluding that Wilson had a
right to withdraw his claim before the KCHR prior to a final
determination on the merits and to file a complaint with the
circuit court, there may be a question concerning how long before
a final determination Wilson was required to withdraw his claim.
Obviously, a party may not file a claim, proceed to trial or
hearing, and then withdraw the claim before the ruling body
issues a final determination.
In this case, Wilson filed his
KCHR complaint on March 31, 1999, and requested withdrawal of it
two months later.
The hearing was scheduled to be held in late
December 1999, nearly seven months later.
Although Lowe’s had
responded to a document/information request and had filed an
answer and amended answer, it was obviously not prejudiced by the
withdrawal of the claim.
2d, supra, § 14.
See Riley, 29 S.W.2d at 4; 25 Am Jur
Further, the chairperson of the KCHR gave
Wilson written consent to withdraw his claim without prejudice
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pursuant to the administrative regulation.
In short, we conclude
that Wilson withdrew his administrative claim sufficiently early
in the process so as not to prejudice Lowe’s to any significant
extent.
Despite our view that Wilson should have been allowed
to file his claim in circuit court in light of Kentucky law
regarding the doctrine of election of remedies and in light of
the factual differences in this case from the Vaezkoroni and
Founder cases, we must nonetheless address language from each
case which appears to favor Lowe’s and the trial court’s
position.
As we have noted, in the Vaezkoroni case the Kentucky
Supreme Court stated that “[o]nce any avenue of relief is chosen,
the complainant must follow that avenue through to its final
conclusion.”
914 S.W.2d at 343.
Since the Vaezkoroni case
involved an employee who had prosecuted his claims to the
administrative body to a final determination, that language is
clearly dicta.8
Similarly, in the Founder case a panel of this court
stated that “[f]rom our reading of the language in KRS 344.270
and Vaezkoroni, once a complaint is filed with the Commission, a
subsequent action in circuit court based on the same civil rights
violation[s] is barred.”
23 S.W.3d at 323.
8
Since the employee’s
“A statement in an opinion not necessary to the decision
of the case is obiter dictum. It is not authoritative though it
may be persuasive or entitled to respect according to the
reasoning and application or whether it was intended to lay down
a controlling principle.” Cawood v. Hensley, Ky., 247 S.W.2d,
27, 29 (1952). “The test is whether the statement was or was not
necessary to the determination of the issues raised by the record
and considered by the court.” Utterback’s Adm’r v. Quick, 230
Ky. 333, 338, 19 S.W.2d 980, 983 (1929).
-14-
circuit court complaint in Founder was barred by KRS 344.270 for
lack of jurisdiction because the complaint was still pending with
an administrative body, this language in the Founder case is also
dicta.
Like Vaezkoroni, Founder did not involve facts like those
in this case.
Finally, the United States District Court for the
Western District of Kentucky, Louisville Division, has recently
addressed the issue before this court in Grego v. Meijer, Inc.,
No. 3:00-CV-327-H, 2001 U.S. Dist. LEXIS 11970 at *1.
In Grego,
the aggrieved employee filed a sex discrimination complaint with
the KCHR on May 20, 1998.
Id. at *4. On November 30, 1999, she
requested the KCHR to withdraw her complaint.
Id.
After the
KCHR withdrew the complaint without prejudice, she filed a civil
complaint in the Jefferson Circuit Court.
Id.
The employer
moved the case to federal court based on diversity jurisdiction.
Id.
The federal district court in Grego denied the
employer’s motion to dismiss which was based on the doctrine of
election of remedies.
Id. at *8.
The court examined the
Vaezkoroni and Founder cases, predicted that the Kentucky Supreme
Court would not follow Founder, and held that Grego could file
her complaint in circuit court even though she had previously
filed a complaint with the KCHR.
Id. at *4-*6.
Even though the
Grego case is not binding on this court, we agree with its
reasoning.
In short, we conclude that the trial court erred in
awarding Lowe’s a summary judgment based on Lowe’s election of
remedies argument.
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The second issue is whether the trial court correctly
dismissed Wilson’s IIED claim by summary judgment.
The court
held that “the record herein does not contain sufficient evidence
of an egregious character to survive a motion for summary
judgment.”
The court cited Humana of Kentucky, Inc. v. Seitz,
Ky., 796 S.W.2d 1 (1990).
The tort of IIED was first recognized by the Kentucky
Supreme Court when it adopted the Restatement (Second) of Torts,
§ 46 in Craft v. Rice, Ky., 671 S.W.2d 247, 251 (1984).
The
court adopted the following:
§ 46. Outrageous Conduct Causing Severe
Emotional Distress
(1) One who by extreme and outrageous conduct
intentionally or recklessly causes severe
emotional distress to another is subject to
liability for such emotional distress, and if
bodily harm to the other results from it, for
such bodily harm.
Id.
In Kroger Co. v. Willgruber, Ky., 920 S.W.2d 61 (1996), the
Kentucky Supreme Court stated that “[c]itizens in our society are
expected to withstand petty insults, unkind words and minor
indignities.
Such irritations are a part of normal, every day
life and constitute no legal cause of action.
It is only
outrageous and intolerable conduct which is covered by this
tort.”
Id. at 65.
Wilson maintains the trial court erred in determining
that the allegations set forth in his IIED claim were
insufficient to survive the appellees’ summary judgment motion.
We agree.
Wilson alleged in his deposition that he was subjected
to racist remarks virtually every day during his employment with
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Lowe’s at the Fern Valley store.
A few examples cited by Wilson
are:
#
Choate told Wilson “it wouldn’t be hard to find
something wrong that a black does anyway.”
#
Choate told Wilson that a black man was hung in his
hometown a couple of years earlier and, in response to
Wilson’s question as to why, Choate stated that “they
didn’t need a reason.”
#
Duncan indicated to Wilson that he (Duncan) was a
racist.
#
Duncan stated to his young daughter in front of Wilson
that “if you bring one of those home with you, I’ll
kill you.” The comment was allegedly made in the break
room in front of several employees who all laughed at
the comment.
#
Duncan told Wilson that he (Wilson) was subjected to
racist remarks because “I guess it’s just the penalty
for being born black.”
#
Choate told Wilson that Rodney King “needed his black
butt whipped.”
#
Duncan stated that Jeffrey Dahmer’s killing of a black
boy indicated that Dahmer was one of the few white
people who “liked dark meat.”
#
Duncan told Wilson to “watch yourself making those
Bullitt County rednecks mad . . . they’ll come back
with hoods on and hang you.”
#
After a comment about Michael Jordan’s hang time,
Phillips said “don’t ever speak of hanging when a black
man’s around.”
#
Phillips told Wilson that he was prejudiced, that he
didn’t like blacks, but that he hated Vietnamese people
more.
#
Choate, Duncan, and Phillips told Wilson that neither
he nor any other black person would ever be a store
manager at the Lowe’s store.
#
When company employees were eating a cake that was half
white and half chocolate and had writing on it, an
employee made a remark that “blacks can’t read anyway.”
The comments were allegedly made in front of other
employees and managers.
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Wilson testified in his deposition that racial comments such as
those above were made almost every day by the three individual
store managers and by other employees in his presence.
He
further testified that he complained to his superiors about the
comments but that no action was taken to stop them.
Comment h of section 46 of the Restatement (Second) of
Torts states as follows:
It is for the court to determine, in the
first instance, whether the defendant’s
conduct may reasonably be regarded as so
extreme and outrageous as to permit recovery,
or whether it is necessarily so. Where
reasonable men may differ, it is for the
jury, subject to the control of the court, to
determine whether, in the particular case,
the conduct has been sufficiently extreme and
outrageous to result in liability.
Comment d of the Restatement states in part that “[l]iability has
been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”
In Seitz, the court stated that “[t]he question we must
decide, therefore, is whether, as a matter of law, taking the
evidence of the respondent-plaintiff as being true, that evidence
falls within the purview of § 46 and the four criteria we set out
in Craft.”
Seitz, 796 S.W.2d at 3.
The four criteria to
establish an IIED claim are: (1) the wrongdoer’s conduct must be
intentional or reckless, (2) the conduct must be outrageous and
intolerable, (3) there must be a causal connection between the
conduct and the emotional distress, and (4) the emotional
distress must have been severe.
Craft, 671 S.W.2d at 249.
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We conclude the trial court erred in holding that
Wilson’s IIED claim was not sufficient to survive the appellees’
summary judgment motion. If Wilson’s allegations are true, then
he was subjected to racial remarks on nearly a daily basis by his
coworkers and supervisors for a period of approximately seven
years.9
If such conduct occurred, we believe a jury could find
such conduct to be intentional, outrageous, and intolerable.
As
stated in comment h of the Restatement, if reasonable minds may
differ as to whether the alleged conduct was sufficiently extreme
and outrageous so as to result in liability, then the matter is
subject to determination by a jury.
Finally, now that we have reinstated Wilson’s IIED
claim, we must address the appellees’ argument that this claim is
preempted or subsumed by Wilson’s KRS Chapter 344 claims.
The
trial court addressed this issue and held that Wilson’s IIED
claim “is not barred as a matter of law by the doctrine of
preemption.”
As we have noted, Wilson’s IIED claim was brought
against both Lowe’s and the three individuals.
The appellees did not file a cross-appeal on this
issue, perhaps because the trial court had ruled in their favor
and dismissed the IIED claim on its merits.
Now that we have
reinstated the claim, we must address the issue.
Citing Cooksey
Bros. Disposal Co., v. Boyd County, Ky. App., 973 S.W.2d 64
9
The facts of this case are distinguishable in this regard
from the facts in Seitz, the case upon which the trial court
relied. The callous and insensitive remarks of the hospital
personnel in Seitz occurred during only one short incident and
were not part of “a pattern of conduct.” Id. at 4. In the case
sub judice, however, the offensive conduct allegedly occurred on
a regular basis for approximately seven years.
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(1997), the appellees maintain that this court has the authority
to affirm the trial court for different reasons than it gave in
its judgment.
Id. at 70.
Wilson’s KRS Chapter 344 claims were brought against
Lowe’s only and not against the three individual store managers.
The IIED claim was brought against both Lowe’s and the three
individuals.
We agree with the appellees that Wilson’s IIED
claim against Lowe’s was subsumed by its KRS Chapter 344 claims.
However, we disagree that the IIED claims against the three
individuals were subsumed by the KRS Chapter 344 claims against
Lowe’s.
KRS 344.020 (1)(b) extends protection to the “personal
dignity and freedom from humiliation” of individuals.
This has
been interpreted as allowing “claims for damages for humiliation
and personal indignity[.]”
McNeal v. Armour and Co., Ky. App.,
660 S.W.2d 957, 958 (1983).
Similarly, an IIED claim seeks
damages for extreme emotional distress.
See Rigazio v.
Archdiocese of Louisville, Ky. App., 853 S.W.2d 295, 299 (1993).
“Where the statute both declares the unlawful act and specifies
the civil remedy available to the aggrieved party, the aggrieved
party is limited to the remedy provided by the statute.”
v. Evans, Ky., 700 S.W.2d 399, 401 (1985).
Grzyb
Thus, Wilson’s IIED
claim against Lowe’s was subsumed by his KRS Chapter 344 claims.
This same conclusion was reached by the federal court in Messick
v. Toyota Motor Manufacturing, Kentucky, Inc., 45 F. Supp. 2d
578, 582 (E.D.Ky. 1999).
Therefore, we affirm the trial court’s
dismissal of Wilson’s IIED claim against Lowe’s.
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Nevertheless, we conclude that Wilson’s IIED claim
against the three individual store managers was not subsumed by
his KRS Chapter 344 claims against Lowe’s.
The three individual
store managers rely on the Messick case to support their
argument.
We do not read Messick that broadly, however.
In
Messick, the employee filed a KRS Chapter 344 claim and an IIED
claim against the employment agency, her employer.
In dismissing
the IIED claim, the court held that “because Plaintiff finds an
existing form of recovery for her emotional distress under the
Kentucky Civil Rights Act, she fails to state a claim of
intentional infliction of emotional distress against Olsten.”
Id. at 582.
In reviewing that case, it is significant to note
that there was no mention of dismissing the IIED claims against
the individual.
Clearly, 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.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed in part, reversed in part,
and remanded.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Douglas S. Haynes
Louisville, Kentucky
Richard C. Stephenson
Amy C. Liebermann
Lexington, Kentucky
ORAL ARGUMENT FOR APPELLANT:
ORAL ARGUMENT FOR APPELLEE:
Vicki Buba
Louisville, Kentucky
Amy Liebermann Johnson
Lexington, Kentucky
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