Kentucky Commission on Human Rights ex rel. Bogale v. Eastern Kentucky University

988 S.W.2d 41, 1999 Ky. App. LEXIS 10, 1999 WL 93235
CourtCourt of Appeals of Kentucky
DecidedFebruary 12, 1999
DocketNo. 1997-CA-002600-MR
StatusPublished

This text of 988 S.W.2d 41 (Kentucky Commission on Human Rights ex rel. Bogale v. Eastern Kentucky University) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kentucky Commission on Human Rights ex rel. Bogale v. Eastern Kentucky University, 988 S.W.2d 41, 1999 Ky. App. LEXIS 10, 1999 WL 93235 (Ky. Ct. App. 1999).

Opinion

OPINION

BUCKINGHAM, Judge.

Kentucky Commission on Human Rights (the Commission) appeals on behalf of Solomon and Danita Bógale (the Bógales) from an order of the Madison Circuit Court which dismissed with prejudice the complaint filed by the Commission on behalf of the Bógales against Eastern Kentucky University (the University), Dr. Thomas Myers (Myers), and Harry Moberly, Jr. (Moberly) (hereafter referred to collectively as “the University” unless otherwise noted). We affirm.

The Bógales, an interracial married couple, were residing in University housing with their two children when a domestic violence incident occurred in their apartment in 1995. University police forwarded a report concerning this incident to Myers, the University’s vice-president of student affairs, and Myers referred the matter to Moberly, the director of student judicial affairs. Moberly conducted a hearing concerning the incident in June 1995, after which time he evicted Solomon Bógale from University housing but took no action against Danita Bógale.

Solomon Bógale appealed Moberly’s decision to Myers, but Myers upheld Moberly’s decision and gave Solomon Bógale ten days in which to vacate University housing. Not desiring to disrupt their family, the Bógales and their children vacated University housing on June 28, 1995. The Bógales filed a complaint with the Commission against the University, Myers, and Moberly in September 1995, in which they alleged that they were discriminated against due to their interracial marriage.

After a period of investigation, the Commission sent a letter to Giles Black (apparently the University’s counsel) on August 15, 1996, stating its finding of probable cause concerning a violation of KRS 344.360 1 by the University. The probable cause letter provided that the parties had a right to have this claim decided in an administrative hearing under KRS 344.640 or in a civil action under KRS 344.670 and further provided that “[t]he person making the election [of forums] is required to give written notice of such election to the Commission.”

On August 26,1996, Black wrote a letter to the Commission which stated that the University “respectfully requestfs] that the matter be disposed of in the proceeding pursuant to KRS 344.670 [the civil action].” Copies of this letter were sent to the Commission, the Commission’s staff attorney assigned to the case, Myers, and Moberly, but not to the Bógales.

Despite the letter from Black to the Commission, the ne)ct action taken was an order issued by the Commission in January 1997 which selected a hearing panel to adjudge the Bógales’ complaint. Black responded to the order selecting a hearing panel by writing a letter to the Commission which stated that he “had requested by letter of August 26,1996 ... that the matter be disposed of in a judicial proceeding” and requested that the Commission rescind its order setting a hearing panel so that the matter could be disposed of pursuant to KRS 344.670. This letter was sent to the Commission and its staff attorney, as well as to Moberly and Myers, but not to the Bógales.

The Commission’s new managing attorney then discussed the matter with Black, the result of which was Black’s tendering an order rescinding the order setting a hearing panel to the Commission for its approval. Black’s tendered order was approved by the Commission in March 1997.

On April 24, 1997, the Commission filed suit on behalf of the Bógales in the Madison Circuit Court. The University responded with a motion to dismiss based upon its belief that the Commission’s suit was untimely under KRS 344.670. That statute provides in pertinent part that if an election for a judicial determination is made pursuant to KRS 344.635, the Commission is required to commence an action in the circuit court within [43]*43thirty days after the election is made. As the letter from Black to the Commission requesting proceedings under KRS 344.670 was dated August 26, 1996, the University argued that the Commission filed suit on behalf of the Bógales well after the thirty-day time period had expired. The trial court granted the University’s motion and dismissed the complaint filed by the Commission on behalf of the Bógales with prejudice. The Commission then filed the appeal sub judice on the Bógales’ behalf.

The Commission’s first argument is that the University failed to properly elect a judicial forum pursuant to KRS 344.636, which provides in pertinent part as follows:

When a discriminatory housing charge is filed under KRS 344.625, a complainant, a respondent, or the aggrieved person on whose behalf the complaint is filed, may elect to have the claims asserted in that charge decided in a civil action under KRS 344.670, in lieu of an administrative hearing before the commission under KRS 344.640.
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(2) The person making the election shall give written notice of doing so to the commission and to all other complainants and respondents to whom the charge relates.

(Emphasis added.) The crux of the Commission’s argument is that the University did not execute a valid election to pursue a civil action under KRS 344.670 because the University failed to give written notice of its election to the Bógales as required by the statute. The University does not deny that it failed to give written notice of its election of a civil action directly to the Bógales; however, the University notes that the probable cause letter sent by the Commission to the University stated that the party making an election need only notify the Commission.

There is no question that the University failed to give written notice to the Bógales of its election to have the claim asserted in a civil action under KRS 344.670, and there is no question that the letter from the Commission advised the University that the person making the election need only notify the Commission. The issue, however, is whether the University’s failure to comply with KRS 344.635

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Related

§ 344.360
Kentucky § 344.360
§ 344.640
Kentucky § 344.640
§ 344.670
Kentucky § 344.670
§ 344.635
Kentucky § 344.635
§ 344.636
Kentucky § 344.636
§ 344.625
Kentucky § 344.625
§ 344.650
Kentucky § 344.650

Cite This Page — Counsel Stack

Bluebook (online)
988 S.W.2d 41, 1999 Ky. App. LEXIS 10, 1999 WL 93235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kentucky-commission-on-human-rights-ex-rel-bogale-v-eastern-kentucky-kyctapp-1999.