Michael Lee Barnett v. Central Kentucky Hauling, LLC

• Court: Kentucky Supreme Court
• Decided: February 15, 2021
• Docket: 2019 SC 0064
• Status: Unknown

Opinion

RENDERED: FEBRUARY 18, 2021 TO BE PUBLISHED

Supreme Court of Kentucky 2019-SC-0064-DG

MICHAEL LEE BARNETT APPELLANT

ON REVIEW FROM COURT OF APPEALS V. NO. 2017-CA-1746 FAYETTE CIRCUIT COURT NO. 17-CI-02945

CENTRAL KENTUCKY HAULING, LLC. APPELLEE

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

AFFIRMING

The Kentucky Civil Rights Act1 bars an employer from discharging an

employee because of disability. We accepted discretionary review of this case

to consider whether the KCRA similarly bars an employer from discharging an

employee because of the disability of an individual with whom the employee

associates. We conclude it does not. We affirm the decision of the Court of

Appeals to affirm the trial court’s order dismissing the KCRA complaint.

I. FACTS AND PROCEDURAL HISTORY

Central Kentucky Hauling hired Michael Lee Barnett as a driver in 2011.

Known to CKH at his hiring was the fact that Barnett’s wife suffered from a

debilitating respiratory disease, cystic fibrosis. In late 2013, the wife’s

1 Kentucky Revised Statutes (KRS) Chapter 344, the Kentucky Civil Rights Act (KCRA). declining health required a double lung transplant, which she received in

January 2014. Toward the end of that year, her health further declined.

Barnett took time off work to care for his wife. In early 2014, CKH

supervisors confronted Barnett concerning a rumor that he was disparaging

CKH to coworkers, a rumor Barnett denied. According to Barnett, during that

confrontation a supervisor also mentioned his time off caring for his wife. At

the end of 2014, CKH officially terminated Barnett’s employment for lack of

work, but Barnett also understood that one of his supervisors “wanted him

gone.”

Barnett sued CKH in the circuit court, alleging his firing violated the

KCRA. He claimed that CKH discriminated against him for his association with

his wife, an individual with a disability as defined by the KCRA. CKH

responded by moving to dismiss Barnett’s suit under Kentucky Rule of Civil

Procedure (CR) 12.02(f) for failure to state a claim upon which relief can be

granted. CKH argued that the KCRA does not create a cause of action for

associational discrimination as Barnett alleged. And the trial court agreed with

CKH’s argument and dismissed the suit. The Court of Appeals affirmed the

trial court’s ruling and similarly found that the text of the KCRA does not

support a cause of action for discrimination based on an employee’s

association with a disabled individual. For reasons explained below, we affirm

the Court of Appeals.

2 II. ANALYSIS

A. We review de novo the trial court’s dismissal under CR 12.02(f).

A defensive motion under CR 12.02(f) requires the trial court to consider

as true the material facts alleged in the complaint and grant that motion only if

satisfied that the plaintiff would not be entitled to relief under any set of facts

that could be proved in support of the claim.2 The motion presents “a pure

question of law,” and appellate review is de novo.3 Our review of the present

case centers on statutory construction, also a matter of de novo review, so we

“look anew at this issue, respectfully considering the opinions of the lower

courts but without deference.”4

B. The KCRA does not create a cause of action for associational discrimination.

The pertinent portion of the KCRA reads: “(1) It is an unlawful practice

for an employer: (a) To . . . discharge any individual, or otherwise discriminate

against an individual with respect to compensation, terms, conditions, or

privileges of employment, because . . . the person is a qualified individual with

a disability[.]”5 The KCRA defines disability as: “(a) A physical or mental

impairment that substantially limits one (1) or more of the major life activities

of the individual; (b) A record of such an impairment; or (c) Being regarded as

2 Kentucky Rules of Civil Procedure 12.02(f); Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010); Morgan & Pottinger, Att’ys, P.S.C. v. Botts, 348 S.W.3d 599, 601 (Ky. 2011) (overruled on other grounds by Maggard v. Kinney, 576 S.W.3d 559 (Ky. 2019)). 3 Grayson, 317 S.W.3d at 7. 4 Lee v. Kentucky Dep’t of Corr., 610 S.W.3d 254, 257 (Ky. 2020). 5 KRS 344.040 (emphasis added).

3 having such an impairment.”6 Additionally, the KCRA defines a “qualified

individual with a disability” as:

“[A]n 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 individuals hold 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.”7

In interpreting what the quoted KCRA provisions mean when read

together, this Court must apply principles of statutory interpretation. We must

first look to the plain language of the statute to “ascertain and give effect to the

intent of the General Assembly.”8 Only if the language is unclear do we

consider the legislatures’ unspoken intent, the statute’s purpose, and the

broader statutory scheme.9

Barnett argues that the broad purpose of these statutes is to prevent

discrimination of those who are associated with disabled persons, such as his

KRS 344.010(4). It is this language Barnett uses as the primary textual 6

support for his argument. 7 KRS 344.030(1). 8 Traveler’s Indemnity Company v. Armstrong, 565 S.W.3d 550, 558 (Ky. 2018). (“The fundamental rule in statutory interpretation is to give effect to the legislative intent.” Kentucky Indus. Utility Customers, Inc. v. Kentucky Utilities Co., 983 S.W.2d 493, 500 (Ky. 1998) (citing Wesley v. Bd. of Educ. of Nicholas County, 403 S.W.2d 28 (Ky. 1966)). We interpret statutes ‘according to the plain meaning of the act and in accordance with the legislative intent.’ Pate v. Dept. of Corrections, 466 S.W.3d 480, 488 (Ky. 2015) (quoting Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002) (citing Commonwealth v. Montaque, 23 S.W.3d 629 (Ky. 2000))). KRS 446.080 also instructs that “[a]ll statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature[.]”). 9 Grayson, 317 S.W.3d 1 (“In addressing statutory interpretation, the Grayson Court first looked at the plan language of the text, legislative intent, then the purpose and history of the statute.”).

4 wife in the present case. And he reads the KCRA’s language “someone with an

impairment” broadly enough to encompass persons who are associated with an

individual with an actual impairment. But because statutes are not to be

interpreted contrary to their stated language, we must disagree. As the Court

of Appeals’ opinion explained, when these provisions are all read together, the

KCRA provides protection from discrimination for individuals with disabilities.

Overall, the statute’s plain language creates a special cause of action for those

individuals who are regarded themselves as having an actual impairment. The

statute provides first for those with a disability in KRS 344. 040. Then, KRS

344.010 lists three categories for determining who has a disability, one

category being those regarded as having an impairment. Importantly, no

language in the KCRA suggests an intent to protect those who are associated

with disabled persons. To so find “would be to contravene the plain language

of the KCRA,” as the Court of Appeals opinion aptly concluded.

Barnett urges this Court to consider our recent decision in Asbury

University v. Powell10 as support for his contention that we should find a cause

of action for associational discrimination despite the plain text of the statute.

In Powell, we reviewed the issue of whether a retaliation claim under the KCRA

requires an underlying violation of the law.11 Powell alleged Asbury retaliated

against her for reporting a mixed-motive theory of gender discrimination. The

10 486 S.W.3d 246 (Ky. 2016). 11 Id. at 251–52.

5 KCRA does not recognize a mixed-motive theory of discrimination.12 Asbury

argued Powell’s claim must fail as a matter of law because the KCRA does not

recognize the type of discrimination giving rise to the claimed retaliation.13

We held that Powell’s retaliation claim survived. We explained that

Powell’s claim was based on Asbury’s “response to her complaints of gender

discrimination” and that retaliation claims only require a good-faith belief that

the conduct reported was in violation of the KCRA.14 Under the KCRA,

retaliation claims may be properly brought so long as there is a good faith

belief that the underlying conduct violated the KCRA.15 In Powell, we did not

address a mixed-motive theory claim of discrimination could be brought

despite not being covered by the KCRA. Instead, we held that conduct not

covered by the KCRA can give rise to a valid retaliation claim so long as the

plaintiff reported it in the good-faith belief that the violation was covered by the

statute. Importantly, Powell did not require this Court to extend the statute,

nor to interpret it. Therefore, as Barnett argues, it is true that Powell

concerned alleged discrimination that was not expressly covered by the KCRA,

but the retaliation claim, which is what this Court upheld as properly brought,

was within the express language of the statute.

12 Id. 13 Id. at 251. 14 Id. at 251–52. 15 Id. at 252.

6 This Court also agrees with the Court of Appeals’ conclusion that

Lexington-Fayette Urban County Human Rights Commission v. Metro

Management,16 an unpublished opinion Barnett cites, is not persuasive.17 The

Court of Appeals’ panel in Metro Management held that an interracial couple

had not established a prima facie claim of housing discrimination under the

KCRA because the couple did not qualify for housing otherwise.18 Importantly,

the appellate panel’s reasoning did not rest on the fact that interracial couples

are not explicitly given a cause of action under the KCRA. Instead, the panel

acknowledged in a footnote that interracial relationships are protected by the

KCRA without citing any caselaw.19 Barnett urges us to find Metro

Management persuasive authority to hold those who associate with disabled

persons to be covered by the KCRA, despite such status not being expressly

mentioned in the statute. But, the KCRA lists familial status, race, religion,

national origin, and sex as protected classes under the statute. Metro

Management references the statute accordingly, and, like the Court of Appeals

in the present case, we are not persuaded that an interracial couple’s right to

housing compares under the present facts to an associated individual’s right to

maintain employment.

16 2001–CA–001234–MR, 2003 WL 22271567 (Ky. App. Oct. 3, 2003). 17While unpublished appellate decisions may be considered if there are no published cases on point, they are not binding upon us. CR 76.28(4)(c). 18 Metro Mgmt., at 5*. 19 Id. *5 n. 28.

7 Barnett also argues that the general purpose of the KCRA requires us to

find a cause of action for associational discrimination. True, sometimes we

consider the general purpose of a statute as we undertake statutory

interpretation.20 The purpose of the KCRA is “[t]o safeguard all individuals

within the state from discrimination because of familial status, race, color,

religion, national origin, sex, age forty (40) and over, or because of the person’s

status as a qualified individual with a disability as defined in KRS 344.010 and

KRS 344.040.”21 The express purpose of the KCRA only further indicates that

association, left entirely unmentioned, was not meant to be protected.

Barnett correctly argues that the KCRA is to be interpreted to provide a

state-law vehicle for executing protections similar to those afforded under the

federal Americans with Disabilities Act of 1990 (ADA), a statute that expressly

covers associational disability.22 And we consider the ADA when interpreting

vague language in the KCRA.23 For example, in Noel v. Elk Brand

Manufacturing Co.,24 the KCRA was unclear about whether the employee or the

employer carried the initial burden of proving the reasonableness of an

20Grayson, 317 S.W.3d at 8. (“In truth, close examination of the relevant language appears to reveal a latent ambiguity. So we must consider all of the relevant accompanying facts, circumstances, and laws, including the time-honored canons of construction, in order to interpret § 93 properly.”). 21 KRS 344.020(1)(b). 22 42 U.S.C. § 12112(b)(4); KRS 344.020(1)(a). 23 Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 591 (Ky. 2003) (“The Kentucky Civil Rights Act was modeled after federal law, and our courts have interpreted the Kentucky Act consistently therewith.”) (citing Bank One, Kentucky N.A. v. Murphy, 52 S.W.3d 540, 544 (Ky. 2001)). 24 Noel v. Elk Brand Mfg. Co., 53 S.W.3d 95, 105 (Ky. App. 2000).

8 accommodation for a disabled employee. Because the KCRA is to be

interpreted with the ADA’s purpose and interpretation in mind, the Court of

Appeals in Noel appropriately considered how similar language in the ADA had

been interpreted.25 The appellate panel then interpreted the KCRA, guided by

the ADA’s assignment of the initial burden of proof.26

However, in contrast to Noel, in this instance, we are not interpreting

vague language in the KCRA. The statute is clear. In Noel, the KCRA’s text

established that one party was meant to have the initial burden of proof but

did not state which one.27 So, the Court of Appeals properly resorted to the

ADA’s interpretation of similar language and applied it to a KCRA claim to

ascertain which party bore the initial burden of proof. Importantly, we

encounter no language in the KCRA suggesting legislative intent to protect

25 Noel, 53 S.W.3d at 106. (“Since the purpose of the Kentucky Civil Rights Act with respect to individuals with disabilities is to adopt the policies of the ADA at the state level and safeguard those individuals from discrimination, the interpretations of the ADA which place the initial burden of proposing reasonable accommodations on the employee should also apply to KRS 344.030(1).”) 26 Id. 27Id. at 105–06. (“A question that arises is whether KRS 344.030(1), which defines a ‘qualified person with a disability,’ places the initial burden of showing a proposed accommodation is reasonable on the employee. The statute provides, in part, that: ‘[A] “[q]ualified individual 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.

9 associational discrimination. As a result, there is no language for this Court to

define in consideration of the ADA.

As the Court of Appeals noted in the present case, the General Assembly

enacted the KCRA two years after the passage of the federal ADA. The General

Assembly had the opportunity to include protection for associational

discrimination claims within the KCRA as the ADA provides. But it included

no such protection. As the Court of Appeals stated, we must “presume that the

legislature did not intend to provide such a protection to Kentucky citizens.

Thus, we must conclude that Barnett has failed to state a claim supported

under Kentucky law.” We are persuaded to reach the same conclusion.

III. CONCLUSION

For the reasons stated, we affirm the Court of Appeals’ opinion and

uphold the trial court’s order dismissing of Barnett’s complaint.

Minton, C.J.; Conley, Hughes, Keller, Nickell, and VanMeter, JJ., sitting.

Lambert, J., not sitting. Minton, C.J.; Conley, Hughes, Keller, Nickell, and

VanMeter, JJ., concur.

COUNSEL FOR APPELLANT:

Paul Stewart Abney Kelly Parry-Johnson Jeremiah Wesley Reece Soha Tajoddin Saiyed Abney Law Office, PLLC

COUNSEL FOR APPELLEE:

Robert Edwin Maclin, III Jaron Paul Blanford Elizabeth Chesnut-Barrera McBrayer, McGinnis, Leslie & Kirkland, PLLC 10