LORETTA WRIGHT v. HIGHLAND CLEANERS, INC.
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RENDERED: May 30, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000949-MR
LORETTA WRIGHT
APPELLANT
ON REMAND FROM SUPREME COURT OF KENTUCKY
NO. 2001-SC-0466-D
APPEAL FROM JEFFERSON CIRCUIT COURT
HON. JOHN WOODS POTTER, JUDGE
ACTION NO. 99-CI-001092
v.
HIGHLAND CLEANERS, INC.
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: BARBER, COMBS, AND McANULTY, JUDGES.
BARBER, JUDGE:
This case has been remanded by the Supreme Court
of Kentucky for our consideration in light of the decision in
Wilson v. Lowe=s Home Center.1
Accordingly, we reverse and
remand.
On or about July 23, 1997, the Appellant, Loretta
Wright (AWright@) filed a charge of discrimination with the
Louisville & Jefferson County Human Relations Commission (Athe
1
Ky. App., 75 S.W.2d 229 (2001).
Commission@).
The complaint was also automatically filed with
On December 14, 1998, Wright filed a ARequest for
the EEOC.
Withdrawal of Charge of Discrimination@ with the Commission.
On December 16, 1998, the Commission issued a ADismissal Order,@
stating that the case was administratively closed.
On January
21, 1999, the EEOC issued a ANotice of Right to Sue,@ stating
that it was Aterminating the processing of this charge,@ and
advising that a lawsuit must be filed in federal court within 90
days.
On February 24, 1999, Wright filed a complaint in the
Jefferson Circuit Court.
By order entered March 15, 2000, the
circuit court entered an order granting summary judgment in favor
of Appellee, Highland Cleaners (AHighland@).
The circuit court
dismissed Wright=s action because her initiation of an
administrative proceeding precluded a later circuit court action,
under the rationale of Vaezkoroni v. Domino=s Pizza.2
On April 14, 2000, Wright filed a notice of appeal to
this Court.
We affirmed, based upon Founder v. Cabinet for Human
Resources3.
Wright sought discretionary review in the Supreme
Court.
By order entered June 5, 2002, The Supreme Court vacated
this Court=s Opinion affirming and remanded the matter for our
consideration in light of Lowe=s, supra.
Lowe=s holds that the
doctrine of election of remedies allows an employee to withdraw
his complaint before the Kentucky Commission on Human Rights,
2
Ky., 914 S.W.2d 341 (1996).
3
Ky. App., 23 S.W.2d 221 (1999).
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prior to a final determination on the merits, and to subsequently
file a complaint in the circuit court.
In Lowe=s, the Court of
Appeals explained that:
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 . . . [or] a civil action for
damages in circuit court [pursuant to KRS
344.200].
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 . . .
[KRS 344.270] 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 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. . . .
. . . .
At first glance, the Vaezkoroni and Founder
cases appear to . . . resolve this matter in
favor of Lowe's. However, . . . Vaezkoroni
. . . was pursued to final determination
before that commission. . . . Clearly, the
employee had completely and unsuccessfully
pursued the administrative avenue of relief
to a final determination before pursuing the
judicial avenue. . . . Founder . . .
involved an employee who . . . had filed a
civil suit in circuit court while the
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administrative proceedings were
pending. . . .
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 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.
. . . .
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. . . .
Further, the chairperson of the KCHR gave Wilson
written consent to withdraw his claim without
prejudice 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
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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.
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." . . .
Since the employee's 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.
Id. at 232-236.
In the case sub judice, Wright did not pursue her
administrative claim to a final conclusion, nor did she have a
pending administrative claim when she filed her complaint in the
circuit court.
In its motion for summary judgment, Highland does
not allege that it suffered any prejudice by Wright=s withdrawal
of her administrative claim, only that its filing precluded her
from bringing a circuit court action.
Accordingly, we conclude
that the circuit court erred in granting Highland=s motion for
summary judgment.
We reverse the Opinion and Order of the
Jefferson Circuit Court entered March 15, 2000, and remand for
further proceedings not inconsistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hollie Houston
Louisville, Kentucky
William J. Walsh IV
Louisville, Kentucky
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