RENDERED: NOVEMBER 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0243-MR
CHANCELLOR ANTHONY APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 21-CI-00395
KENTUCKY JUSTICE AND PUBLIC SAFETY CABINET, DEPARTMENT OF CRIMINAL JUSTICE TRAINING APPELLEE
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CETRULO, COMBS, AND EASTON, JUDGES.
EASTON, JUDGE: The Appellant (“Anthony”) asks this Court to reverse the
dismissal of his disability discrimination claim. Because the status of the Appellee
(“DOCJT”) as an “employer” of Anthony as defined by law could not be
determined from the allegations contained in the Complaint, we reverse the
dismissal for failure to state a claim and remand for further proceedings. We affirm the dismissal of Anthony’s administrative appeal of DOCJT’s decision not
to certify Anthony after his training.
FACTUAL AND PROCEDURAL BACKGROUND
Anthony was employed by the Leitchfield Police Department (“LPD”)
a department of the City of Leitchfield, Anthony’s direct employer. To obtain
certification as a peace officer for this employment, Anthony attended training
provided by DOCJT. He did so at the direction of LPD. Unlike some larger police
agencies in Kentucky, LPD did not have its own training program and sent its
recruits to DOCJT.
Anthony was born without a fully formed right arm. He uses a
prosthesis for his right forearm and hand. Anthony proceeded through the training
and was scheduled to graduate the program. At the last minute, Anthony was
denied his certification after previously being listed as a graduate.
Anthony appealed the certification denial within the administrative
agency, but this appeal was unsuccessful. Anthony filed an appeal of the final
administrative decision to the circuit court. Unfortunately, Anthony failed to
attach the order he sought to appeal, which KRS1 13B.140(1) requires. In addition
to the attempted appeal, Anthony claimed disability discrimination by DOCJT in
violation of KRS 344.070.
1 Kentucky Revised Statutes.
-2- Anthony conceded the error about the appeal portion of his suit.
DOCJT sought to dismiss not only the appeal but also the discrimination claim.
The circuit court concluded that DOCJT was not Anthony’s employer, nor a labor
organization governed by KRS 344.070. As a result, the circuit court dismissed
Anthony’s suit for failure to state a claim upon which relief can be granted. This
appeal follows.
STANDARD OF REVIEW
A motion to dismiss for failure to state a claim upon which relief may be granted admits as true the material facts of the complaint. So a court should not grant such a motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved . . . . Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court’s determination; instead, an appellate court reviews the issue de novo.
Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (internal quotation marks and
citations omitted). Because of this deference to alleged facts, motions to dismiss
often turn on questions of law.
ANALYSIS
Anthony does not contest the dismissal of his administrative appeal.
Because appeals of administrative decisions are a matter of legislative grace, strict
-3- compliance with the appeal requirements must be observed. Without strict
compliance, the circuit court has no jurisdiction to consider the appeal. Board of
Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978).
DOCJT did not argue any aspect of res judicata of the administrative
decision on the discrimination claim in the circuit court proceedings. DOCJT was
not yet required to assert this affirmative defense under CR2 12.02. Even if it had,
neither we nor the circuit court could determine that issue because the record of the
administrative action was not sent to the circuit court.
At this point, we cannot ascertain why the certification was denied.
DOCJT suggested at page 3 of its Memorandum of Law in Support of Motion to
Dismiss filed with the circuit court that Anthony could not perform critical tasks,
such as defensive maneuvers, without his prosthesis, and Anthony indicated that he
did not intend to wear the prosthesis on a day-to-day basis. But there is no record
to support this statement. We must assume for the sake of a dismissal motion that
Anthony’s allegation of discrimination due to disability is true.
If Anthony is a “qualified person with a disability,” then “an
employer, labor organization, or joint labor-management committee” cannot
discriminate again him in training opportunities. KRS 344.070. Disability as it
may apply to Anthony means “[a] physical or mental impairment that substantially
2 Kentucky Rules of Civil Procedure.
-4- limits one (1) or more of the major life activities of the individual.” KRS
344.010(4)(a). A qualified person with a disability means “an individual with a
disability as defined in KRS 344.010 who, with or without reasonable
accommodation, can perform the essential functions of the employment position
that the individual holds or desires unless an employer demonstrates that he is
unable to reasonably accommodate an employee’s or prospective employee’s
disability without undue hardship on the conduct of the employers’ business.”
KRS 344.030(1).
For a motion to dismiss, we must assume Anthony could prove the
factual predicates to satisfy the definition of a qualified person with a disability.
The legal question is whether Anthony’s claim is barred because of the limitation
in KRS 344.070, which creates liability for an “employer.” We must decide
whether DOCJT can be considered an employer under this statute.
Before addressing the controlling question of employer status, we will
comment on Anthony’s added argument of DOCJT being a labor organization. We
need not delve into the disagreement over preservation of this argument. The
circuit court correctly determined DOCJT is not a labor organization as a matter of
law after review of the allegations about DOCJT in the Complaint. KRS
344.030(4). See B.L. v. Schumann, 380 F. Supp. 3d 614, 648 (W.D. Ky. 2019).
-5- In B.L., the plaintiff did not allege that the governmental agency
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RENDERED: NOVEMBER 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0243-MR
CHANCELLOR ANTHONY APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 21-CI-00395
KENTUCKY JUSTICE AND PUBLIC SAFETY CABINET, DEPARTMENT OF CRIMINAL JUSTICE TRAINING APPELLEE
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CETRULO, COMBS, AND EASTON, JUDGES.
EASTON, JUDGE: The Appellant (“Anthony”) asks this Court to reverse the
dismissal of his disability discrimination claim. Because the status of the Appellee
(“DOCJT”) as an “employer” of Anthony as defined by law could not be
determined from the allegations contained in the Complaint, we reverse the
dismissal for failure to state a claim and remand for further proceedings. We affirm the dismissal of Anthony’s administrative appeal of DOCJT’s decision not
to certify Anthony after his training.
FACTUAL AND PROCEDURAL BACKGROUND
Anthony was employed by the Leitchfield Police Department (“LPD”)
a department of the City of Leitchfield, Anthony’s direct employer. To obtain
certification as a peace officer for this employment, Anthony attended training
provided by DOCJT. He did so at the direction of LPD. Unlike some larger police
agencies in Kentucky, LPD did not have its own training program and sent its
recruits to DOCJT.
Anthony was born without a fully formed right arm. He uses a
prosthesis for his right forearm and hand. Anthony proceeded through the training
and was scheduled to graduate the program. At the last minute, Anthony was
denied his certification after previously being listed as a graduate.
Anthony appealed the certification denial within the administrative
agency, but this appeal was unsuccessful. Anthony filed an appeal of the final
administrative decision to the circuit court. Unfortunately, Anthony failed to
attach the order he sought to appeal, which KRS1 13B.140(1) requires. In addition
to the attempted appeal, Anthony claimed disability discrimination by DOCJT in
violation of KRS 344.070.
1 Kentucky Revised Statutes.
-2- Anthony conceded the error about the appeal portion of his suit.
DOCJT sought to dismiss not only the appeal but also the discrimination claim.
The circuit court concluded that DOCJT was not Anthony’s employer, nor a labor
organization governed by KRS 344.070. As a result, the circuit court dismissed
Anthony’s suit for failure to state a claim upon which relief can be granted. This
appeal follows.
STANDARD OF REVIEW
A motion to dismiss for failure to state a claim upon which relief may be granted admits as true the material facts of the complaint. So a court should not grant such a motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved . . . . Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court’s determination; instead, an appellate court reviews the issue de novo.
Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (internal quotation marks and
citations omitted). Because of this deference to alleged facts, motions to dismiss
often turn on questions of law.
ANALYSIS
Anthony does not contest the dismissal of his administrative appeal.
Because appeals of administrative decisions are a matter of legislative grace, strict
-3- compliance with the appeal requirements must be observed. Without strict
compliance, the circuit court has no jurisdiction to consider the appeal. Board of
Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978).
DOCJT did not argue any aspect of res judicata of the administrative
decision on the discrimination claim in the circuit court proceedings. DOCJT was
not yet required to assert this affirmative defense under CR2 12.02. Even if it had,
neither we nor the circuit court could determine that issue because the record of the
administrative action was not sent to the circuit court.
At this point, we cannot ascertain why the certification was denied.
DOCJT suggested at page 3 of its Memorandum of Law in Support of Motion to
Dismiss filed with the circuit court that Anthony could not perform critical tasks,
such as defensive maneuvers, without his prosthesis, and Anthony indicated that he
did not intend to wear the prosthesis on a day-to-day basis. But there is no record
to support this statement. We must assume for the sake of a dismissal motion that
Anthony’s allegation of discrimination due to disability is true.
If Anthony is a “qualified person with a disability,” then “an
employer, labor organization, or joint labor-management committee” cannot
discriminate again him in training opportunities. KRS 344.070. Disability as it
may apply to Anthony means “[a] physical or mental impairment that substantially
2 Kentucky Rules of Civil Procedure.
-4- limits one (1) or more of the major life activities of the individual.” KRS
344.010(4)(a). A qualified person with a disability means “an individual with a
disability as defined in KRS 344.010 who, with or without reasonable
accommodation, can perform the essential functions of the employment position
that the individual holds or desires unless an employer demonstrates that he is
unable to reasonably accommodate an employee’s or prospective employee’s
disability without undue hardship on the conduct of the employers’ business.”
KRS 344.030(1).
For a motion to dismiss, we must assume Anthony could prove the
factual predicates to satisfy the definition of a qualified person with a disability.
The legal question is whether Anthony’s claim is barred because of the limitation
in KRS 344.070, which creates liability for an “employer.” We must decide
whether DOCJT can be considered an employer under this statute.
Before addressing the controlling question of employer status, we will
comment on Anthony’s added argument of DOCJT being a labor organization. We
need not delve into the disagreement over preservation of this argument. The
circuit court correctly determined DOCJT is not a labor organization as a matter of
law after review of the allegations about DOCJT in the Complaint. KRS
344.030(4). See B.L. v. Schumann, 380 F. Supp. 3d 614, 648 (W.D. Ky. 2019).
-5- In B.L., the plaintiff did not allege that the governmental agency
running the program in question was an employer. Id. In the present case,
Anthony did make this allegation. In Paragraph 22 of his Complaint, Anthony
alleged DOCJT was his employer for purposes of his KRS 344.070 claim, while in
Paragraph 1 Anthony says LPD was his employer.
Claiming two employers appears to be inconsistent. But Anthony
provided further relevant allegations in Paragraphs 3 and 19 of his Complaint. In
Paragraph 3, Anthony alleges DOCJT was responsible for his training protected by
KRS 344.070. In Paragraph 19, Anthony said LPD sent him to the training
provided by DOCJT.
The parties have not discussed the statutory definition of employer.
As used in KRS 344.070, a definition of employer was provided by the General
Assembly. The definition includes not just the employer itself but also any “agent”
of the employer. KRS 344.030(2).
We have little published Kentucky authority applying KRS 344.070.
Since the Kentucky Civil Rights Act borrows the language of Title VII of the Civil
Rights Act of 1964, the provisions of Kentucky law “should be interpreted
consonant with federal interpretation.” Meyers v. Chapman Printing Co., Inc., 840
S.W.2d 814, 821 (Ky. 1992). Where a state agency provides police training for
officers of other agencies, the state agency may be found to be an agent of the
-6- employer within the definition of KRS 344.030(2) and thus under KRS 344.070.
See Pathan v. Connecticut, 19 F. Supp. 3d 400, 416 (D. Conn. 2014).
Again, this is a motion to dismiss for failure to state a claim. We
cannot determine based on the limited record whether Anthony will be able to
establish the factual predicates to show DOCJT as an agent for his direct employer.
But, as it would not be impossible for Anthony to establish the required agency of
DOCJT providing training for the employees of LPD, the dismissal of the
disability discrimination claim must be reversed.
We recognize that the concept of DOCJT as an agent within the
definition of employer was not specifically argued by the parties. As a result, the
circuit court did not have the opportunity to rule on the question. As an appellate
court, we must apply the law even if certain aspects of the law have not been
directly addressed. Mitchell v. Hadl, 816 S.W.2d 183, 185 (Ky. 1991). We were
required only to look up the definition of employer within the same statutory
chapter as KRS 344.070 to discover the question of agency. In this case, the
statutory definition of employer which governs KRS 344.070 as including an agent
is a key component to the law of this case and must be addressed.
CONCLUSION
We affirm the dismissal of Anthony’s appeal of the administrative
decision. We reverse the dismissal of Anthony’s disability discrimination claim
-7- under KRS 344.070 for further proceedings to determine if DOCJT acted as the
agent of LPD in providing training for Anthony and, if so, whether Anthony can
prove discrimination. Consideration of other issues by the circuit court will follow
from further pleadings in the case.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Thomas E. Clay Robin Cornette Louisville, Kentucky Frankfort, Kentucky
-8-