Morris v. Oldham Cnty Fiscal ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0032P (6th Cir.)
File Name: 00a0032p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

JUDY G. MORRIS,

Plaintiff-Appellant,


No. 98-6117
v.

>
OLDHAM COUNTY FISCAL 


COURT; JOHN W. BLACK,

County Judge/Executive;
Defendants-Appellees. 
BRENT LIKINS,

1
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 96-00128—Charles R. Simpson, III, Chief District
Judge.
Argued: August 10, 1999
Decided and Filed: January 20, 2000
Before: KRUPANSKY, BOGGS, and CLAY, Circuit
Judges.
_________________
COUNSEL
ARGUED: Kenneth S. Handmaker, MIDDLETON &
REUTLINGER, Louisville, Kentucky, for Appellant.
1
2 Morris v. Oldham County No. 98-6117
Fiscal Court, et al.
R. Thaddeus Keal, LANDRUM & SHOUSE, Louisville,
Kentucky, Stuart E. Alexander, III, TILFORD, DOBBINS,
ALEXANDER, BUCKAWAY & BLACK, Louisville,
Kentucky, for Appellees. ON BRIEF: Kenneth S.
Handmaker, MIDDLETON & REUTLINGER, Louisville,
Kentucky, Kyle P. Williams, WILDER, LEWIS &
WILLIAMS, Jefferson, Indiana, for Appellant. R. Thaddeus
Keal, David Whalin, LANDRUM & SHOUSE, Louisville,
Kentucky, Stuart E. Alexander, III, TILFORD, DOBBINS,
ALEXANDER, BUCKAWAY & BLACK, Louisville,
Kentucky, for Appellees.
BOGGS, J., delivered the opinion of the court, in which
KRUPANSKY, J., joined. CLAY, J. (pp. 21-30), delivered
a separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Judy Morris appeals the district
court’s grant of summary judgment for defendants, who
include the Oldham County (KY) Fiscal Court and Brent
Likins, her former supervisor at the Oldham County Road
Department. Morris claims that she was subjected to sexual
harassment and retaliatory harassment by her supervisor, with
the assistance or acquiescence of the county officials . Morris
sued the defendants under Title VII, 42 U.S.C. § 1983, and
the Kentucky Civil Rights Act (“KCRA”). We hold that the
district court properly granted summary judgment on Morris’s
Title VII and KCRA sexual harassment claims, as well as all
her § 1983 claims. However, we reverse and remand the
district court’s grant of summary judgment on Morris’s Title
VII retaliation claims against the County and her KCRA
retaliation claims against the County and Likins.
30 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 3
Fiscal Court, et al. Fiscal Court, et al.
that the majority improperly held that Plaintiff could not I
proceed with her § 1983 claim against Likins and Black;
coupled with my belief that the majority misapplies the Plaintiff-appellant Judy Morris has been employed by the
standard for the tort of intentional infliction of emotional Oldham County (KY) Road Department since 1984,
distress under Kentucky law in concluding that Likins’ essentially providing clerical and secretarial duties to the
conduct does not meet the threshold level of outrageousness, Department. In October 1994, defendant-appellee Brent
I respectfully dissent. Plaintiff should be allowed to proceed Likins was appointed the new County Road Engineer, and had
with these claims along with her claim for retaliatory supervisory authority over plaintiff. According to Morris,
harassment where genuine issues of material fact remain for Likins frequently told jokes with sexual overtones, once
trial. referred to plaintiff as “Hot Lips,” and several times made
comments about Morris’s state of dress.
Likins’s first evaluation of Morris’s work performance
occurred in November 1994; he gave Morris a rating of
“excellent.” In March 1995, Likins rated Morris’s
performance as “very good,” stating that she was a “very
efficient and courteous employee.” Upon receiving her
evaluation, Morris asked Likins, in front of another one of her
supervisors, Jim Lentz, why her rating had declined from
“excellent” to “very good.” According to Morris, Likins
responded by telling her
that I could come into his office and then after we were
finished he would mark me excellents [sic] and then we
would go from there. And I told him if that is what it
took, that he could take his paper and he could have the
job because I was not going to tolerate it.
Morris and Lentz both construed this remark as meaning that
if Morris performed sexual favors for Likins, Likins would
improve her evaluation rating.
Morris complained about these incidents to defendant-
appellee County Judge John Black. Black wrote a letter to
Likins concerning Likins’s alleged behavior, telling Likins
that he hoped the two would “work out any problems and
differences in which you have [sic].” After receiving this
letter, Likins allegedly began giving Morris the “cold
shoulder” and became overly critical of her work. After
defense of qualified immunity. further complaints by Morris, Black transferred Likins’s
4 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 29
Fiscal Court, et al. Fiscal Court, et al.
office location from the Road Department to the County unkind words and minor indignities,” inasmuch as the action
Courthouse, out of concern “about everyone’s working lies only for conduct which is truly “outrageous and
environment.” Black also ordered Likins not to communicate intolerable,” clearly Plaintiff has presented sufficient evidence
directly with Morris, and not to be around her without a third to create an issue of fact as to whether this Likins’ conduct
person present. rises to the level of “outrageousness.” See Kroger Co. v.
Willgruber, 920 S.W.2d 61, 65 (Ky. 1996).
Despite Black’s directive, Likins allegedly visited the Road
Department unaccompanied a total of fifteen times, and called In Willgruber, the plaintiff filed a claim for intentional
Morris on the telephone over thirty times. Morris believes infliction of emotional distress against his former employer in
these calls were made solely for the purpose of harassing her. relation to the plaintiff’s termination. 920 S.W.2d at 62-63.
Additionally, Likins allegedly drove to the Road Department The Kentucky Supreme Court found that “the jury had a right
on several occasions, and simply sat in his truck outside the to conclude that [the defendant’s actions constituted] a plan
Department building, looking in Morris’s window and of attempted fraud, deceit, slander, and interference with
making faces at her. He also allegedly followed Morris home contractual rights, all carefully orchestrated in an attempt to
from work one day, pulled his vehicle up beside her mailbox, bring Willgruber to his knees. Conduct such as this
and gave her “the finger.” Morris also claims that Likins constitutes the very essence of the tort of outrage.” Id. at 67.
destroyed the television Morris occasionally watched at the Likewise, in the case at hand, Likins’ actions -- such as
Road Department, and threw roofing nails onto her home deliberately harassing Plaintiff so as to interfere with her job
driveway on several occasions. This behavior by Likins performance, destroying property which Plaintiff used on the
allegedly caused plaintiff to start having anxiety attacks; she job, making an obscene gesture at Plaintiff, and throwing
left work on sick leave. Morris later briefly returned to work, roofing nails on her home driveway -- could be construed as
but left work again in May 1996. At the time the district intentionally creating an environment so intolerable that
court rendered its decision on defendants’ motions for Plaintiff could no longer continue her employment out of
summary judgment, the county was continuing to hold her job physical and emotional fear. Therefore, I believe that a jury
open for her. has a right to decide whether these actions rise to the level of
outrageous behavior so as to allow Plaintiff to recover
On February 14, 1996, Morris sued the County, Black, and damages for her alleged resulting severe emotional distress.
Likins, alleging (1) unlawful employment discrimination by
reason of sex (quid pro quo and hostile environment sexual D. Conclusion
harassment) and retaliation, under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Civil Because I believe that the majority fails to follow binding
Rights Act of 1991, 42 U.S.C. § 1981A et seq., and the precedent from this Circuit in holding that Plaintiff cannot go
Kentucky Civil Rights Act, KY. REV. STAT. 344.010 et seq.; forward with her claim against the County for sexual
and (2) intentional infliction of emotional distress. On harassment under Title VII2and against the County, Likins,
September 9, 1997, Morris amended her complaint by further and Black under the KCRA , and because I therefore believe
alleging that defendants Black and Likins had denied Morris
her right to equal protection, in violation of 42 U.S.C. § 1983.
2
Unlike Plaintiff’s claim for retaliation brought against Black under
the KCRA, because the law regarding sexual harassment was established
at the time Plaintiff brought her claim, Black was not entitled to the
28 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 5
Fiscal Court, et al. Fiscal Court, et al.
C. Intentional Infliction of Emotional Distress Claim Defendants moved for summary judgment. On November
13, 1997, the district court granted defendant’s motion for
I also disagree with the majority’s holding that Plaintiff summary judgment on all claims except Morris’s § 1983
cannot go forward with her claim for intentional infliction of claims against Black and Likins. The court held, inter alia,
emotional distress against Likins under Kentucky law. that because Morris had not been subjected to any adverse
Although I agree that Plaintiff’s claims against the County employment action by defendants, her retaliation claim was
and Black for this tort fail as a matter of law inasmuch as without merit. It also held that Black and Likins could not be
Plaintiff cannot show that the actions of the County and Black held individually liable under the Kentucky Civil Rights Act.
rises to the requisite level of extreme and outrageous conduct, Black and Likins each then moved for summary judgment
I believe that her claim against Likins presents a different with respect to the outstanding § 1983 claims, and the court
scenario. granted summary judgment on these claims for Black on
April 30, 1998, and for Likins on July 21, 1998.
The majority accurately states that Kentucky recognizes a
claim for intentional infliction of emotional distress when Morris now appeals.
“[o]ne who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional distress to another . . . .” II
Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984). However, the
majority inaccurately applies this standard to the facts of this The district court granted summary judgment to defendants.
case. Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories and admissions on file, together
Likins’ conduct against Plaintiff was not only intentional, with the affidavits, if any, show that there is no genuine issue
it clearly was outrageous enough to allow Plaintiff’s claim to as to any material fact, and that the moving party is entitled to
survive summary judgment. For example, Likins 1) told a judgment as a matter of law.” FED. R. CIV. P. 56(c). In this
several “dirty” jokes in Plaintiff’s presence; 2) made a verbal respect, the moving party need not support its motion with
advance toward Plaintiff insinuating that she could improve affidavits or other similar materials “negating” the opponent’s
her performance evaluation if she had a sexual encounter with claim, but need only show that “there is an absence of
him; 3) referred to Plaintiff on one occasion as “hot lips”; 4) evidence to support the non-moving party’s case.” Celotex
made comments about Plaintiffs’s state of dress; 5) visited the Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the
Road Department unaccompanied a total of fifteen times and moving party has met its burden of production, the
called Plaintiff on the telephone over thirty times solely for nonmoving party must by deposition, answers to
the purpose of harassing Plaintiff; 6) destroyed the television interrogatories, and admissions on file show specific facts that
that Plaintiff occasionally watched at the Road Department; reveal a genuine issue for trial. Id. at 324. “The mere
7) stared at Plaintiff and made faces at her through the existence of a scintilla of evidence in support of the plaintiff’s
window where she worked; 8) followed Plaintiff home from position will be insufficient; there must be evidence on which
work one day, pulled his vehicle up beside Plaintiff’s the jury could reasonably find for the plaintiff.” Anderson v.
mailbox, and gave her “the finger”; and 9) threw roofing nails Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Thus, we
onto Plaintiff’s home driveway on several occasions. must consider “whether the evidence presents a sufficient
Although it is true that the Kentucky Supreme Court has disagreement to require submission to a jury or whether it is
stated that an action for outrage will not lie for “petty insults,
6 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 27
Fiscal Court, et al. Fiscal Court, et al.
so one sided that one party must prevail as a matter of law.” claimed by the majority -- provides an indicia of
Id. at 251-52. discriminatory animus “based on sex,” inasmuch as the
harassing conduct in question began after Plaintiff refused
A. Title VII claims against the County1 Likins’ sexual advance.
After the district court rendered its opinion in the instant Accordingly, because I believe that the majority
action, the Supreme Court decided Burlington Industries, Inc. impermissibly divorces and segregates Likins’ post-transfer
v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998), and conduct from the four alleged acts which are of an explicitly
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. sexual nature so as to prevent Plaintiff from going forward
2275 (1998), which substantially altered the principles to be with her claim for sexual harassment under Title VII, I must
applied in sexual harassment cases in which a supervisor is dissent. The majority’s decision rests upon an abdication
alleged to be the guilty party. The holding of the companion from the controlling precedent in this Circuit which requires
cases is the same: a reviewing court to consider a Title VII plaintiff’s hostile
work environment claim under the totality of the
An employer is subject to vicarious liability to a circumstances, and expressly provides that in order for
victimized employee for an actionable hostile conduct to be considered “because of sex,” the conduct need
environment created by a supervisor with immediate (or not be sexual in nature. See Williams, 187 F.3d at 562-65.
successively higher) authority over the employee. When
no tangible employment action is taken, a defending B. Section 1983 Claim for Violation of Rights
employer may raise an affirmative defense to liability or Guaranteed by the Equal Protection Clause of the
damages, subject to proof by a preponderance of the Fourteenth Amendment
evidence, see FED. R. CIV. PROC. 8(c). The defense
comprises two necessary elements: (a) that the employer The majority holds that because Plaintiff’s claim of sexual
exercised reasonable care to prevent and correct promptly harassment fails as a matter of law, her § 1983 claim against
any sexually harassing behavior, and (b) that the plaintiff Black and Likins for violation of her rights guaranteed under
employee unreasonably failed to take advantage of any the equal protection clause of the Fourteenth Amendment
preventative or corrective opportunities provided by the fails as well. However, as stated, I believe that the majority
employer to avoid harm otherwise. While proof that an erred in holding that Plaintiff could not go forward with her
employer had promulgated an anti-harassment policy sexual harassment claim under the KCRA against Likins and
with complaint procedure is not necessary in every Black inasmuch as the majority’s conclusion is contrary to
instance as a matter of law, the need for a stated policy controlling law in this Circuit. Because I believe that Plaintiff
should be allowed to go forward with her claim for sexual
harassment against Likins and Black, I therefore believe that
1 she should be allowed to go forward with her § 1983 claim
It should be noted that Likins and Black cannot be held individually against these Defendants as well. See Grano v. Department
liable under either Title VII of the Civil Rights Act of 1964, 42 U.S.C. of Dev., 637 F.2d 1073, 1082 (6th Cir. 1980).
§ 2000e et seq., or the Civil Rights Act of 1991, 42 U.S.C. § 1981A et
seq. In Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997),
we stated, “[A]n individual employee/supervisor, who does not otherwise
qualify as an ‘employer,’ may not be held personally liable under Title
VII.”
26 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 7
Fiscal Court, et al. Fiscal Court, et al.
motivating force behind his harassing post-transfer conduct. suitable to the employment circumstances may
Again, Williams expressly holds that incidents of non-sexual appropriately be addressed in any case when litigating the
abuse should be considered in a sex harassment claim where first element of the defense. And while proof that an
the motivating factor behind the abuse is sexual. See 187 employee failed to fulfill the corresponding obligation of
F.3d at 565-66. The fact that the post-transfer events may reasonable care to avoid harm is not limited to showing
also be considered retaliatory in nature is of no moment to the any unreasonable failure to use any complaint procedure
fact that Likins’ harassment was motivated by Plaintiff’s provided by the employer, a demonstration of such
rejection of Likins’ sexual advance. I believe that this is failure will normally suffice to satisfy the employer’s
particularly so at the summary stage of these proceedings burden under the second element of the defense. No
where a factual issue remains for the jury as to whether affirmative defense is available, however, when the
Likins’ post-transfer conduct against Plaintiff would have supervisor’s harassment culminates in a tangible
occurred “but for Plaintiff’s sex.” See Williams, 187 F.3d at employment action, such as discharge, demotion, or
565 (citing Henson v. City of Dundee, 682 F.2d 897, 904 undesirable reassignment.
(11th Cir. 1982)).
Ellerth, 118 S. Ct. at 2270, see also Faragher, 118 S. Ct. at
Furthermore, the case upon which the majority relies in 2293. The Court further explained in Ellerth that for an
support of its position was decided pre-Williams and, in any actionable hostile environment created by a supervisor
event, is distinguishable. Specifically, the majority relies preceding an “employment decision to be actionable,
upon Barnett v. Department of Veterans Affairs, in support of however, the conduct must be severe or pervasive.” 118 S.
its position that Likins’ conduct at issue could not be used to Ct. at 2264.
support Plaintiff’s claim of sex discrimination inasmuch as
the conduct was not “because of Plaintiff’s sex.” However, 1. Did the supervisor’s harassment culminate in a
in Barnett, unlike in the case at hand, the only evidence tangible employment action?
presented by the plaintiff to support her claim for sexual
harassment was that her supervisor had made it known that he Morris first argues that she was subject to a tangible
disliked the plaintiff and had used her as the butt of office adverse employment action by refusing Likins’s sexual
jokes. See 153 F.3d 338, 342-43 (6th Cir. 1998). Notably, demands,2 in that she received a “very good” evaluation
although the Barnett Court found that the plaintiff’s rather than an “excellent” evaluation. “When a plaintiff
allegations amounted to personal dislike as opposed to proves that a tangible employment action resulted from a
discriminatory animus, the Court specifically qualified its refusal to submit to a supervisor’s sexual demands, he or she
holding by stating that “[w]hile, under other circumstances, establishes that the employment decision itself constitutes a
proof of personal conflict may provide some indicia of
discriminatory animus, such is not the case here.” Id. at 343.
Therefore, even the Barnett Court recognized that in order for 2
alleged harassing conduct to be “because of sex” it need not This claim, pre-Ellerth, would have been called a quid pro quo
sexual harassment claim by most courts. However, the Supreme Court
be sexually explicit, and that incidents of “personal conflict” stated in Ellerth that “[t]he terms quid pro quo and hostile work
may be sufficient to create an inference of discrimination. environment are helpful, perhaps, in making a rough demarcation between
The facts of the instant case are indicative of those “other cases in which threats are carried out and those where they are not or are
circumstances” where proof of “personal conflict” -- as absent altogether, but beyond this are of limited utility.” 118 S. Ct. at
2264.
8 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 25
Fiscal Court, et al. Fiscal Court, et al.
change in the terms and conditions of employment that is Williams, 187 F.3d at 565.
actionable under Title VII.” Ellerth, 118 S. Ct. at 2265. It
does not necessarily follow that a “downgraded” evaluation Therefore, based upon the state of the law as it exists today,
culminates in a tangible employment action, which the Ellerth it is clear that the majority’s analysis falls short when it
court defined as “a significant change in employment status, declines to include Likins’ conduct such as his post-transfer
such as hiring, firing, failing to promote, reassignment with visits to Plaintiff at the Road Department, phone calls to
significantly different responsibilities, or a decision causing Plaintiff, and other allegedly harassing behavior directed at
a significant change in benefits.” Id. at 2268. At a minimum, Plaintiff, into the hostile work environment equation. As
the plaintiff must point to a tangible employment action that such, the majority’s legal conclusion that to consider the other
she alleges she suffered, or is in jeopardy of suffering, acts would be a “mistake” is erroneous.
because of the downgraded evaluation. See Smart v. Ball
State Univ., 89 F.3d 437, 442-43 (7th Cir. 1996) (holding that Contrary to the majority’s assertions, Plaintiff does claim
negative performance evaluations alone cannot constitute an that these alleged post-transfer incidents of harassment were
adverse employment action); Parrish v. Ford Motor Co., No. “because of sex” inasmuch as she relates them to the other
89-6290, 1990 WL 109188 at *6 (6th Cir. Aug 2, 1990) four incidents of an explicitly sexual nature -- particularly the
(indicating that the evaluation must have an “adverse impact” incident where she declined Likins’ sexual advance; and there
on the plaintiff). is sufficient evidence on the record to suggest that Likins’
alleged post-transfer conduct was committed “because of sex”
It is clear that, in this case, plaintiff suffered no tangible -- particularly at the summary judgment stage of the
employment action as a result of her “very good” proceedings where the acts in question were not committed by
recommendation. She does not allege that she was unfairly Likins until after Plaintiff refused his sexual advance and
denied a promotion as a result of Likins’s actions. Her job where the record is void of Likins treating any male co-
remained open at the time the district court rendered its worker in this fashion. See Williams, 187 F.3d 565-66
decision, and she was, at the time, free to return to it. Morris (holding that “[t]he myriad of instances in which Williams
could perhaps argue that the presence of the evaluation in her was ostracized, when others were not, combined with the
personnel file3 would constitute a tangible employment gender-specific epithets used, such as ‘slut’ and ‘fucking
action, as the Eighth Circuit has held that the “papering” of a women,’ create an inference, sufficient to survive summary
personnel file with negative reports can constitute such an judgment, that her gender was the motivating impulse for her
employment action. See Kim v. Nash Finch Co., 123 F.3d co-workers’ behavior[,] . . . [and that] non-sexual abuse can
1046, 1060 (8th Cir. 1997). However, Likins’s evaluation of undermine competency as much as explicitly sexual harassing
Morris constituted nothing close to the “papering” of her behavior”).
personnel file, and, moreover, his evaluation was in no way
The majority’s claim that Williams is inapplicable because
Likins’ post-transfer acts were “quite distinct, and separated
by explicit intimations of retaliation, not sex discrimination,”
flies in the face of the holding and spirit of Williams. See
Ante at n.7. Simply put, Williams is indistinguishable.
Likins’ harassing conduct against Plaintiff began when she
3
The record appears to be silent on the question of whether the “very declined Likins’ sexual advance, thereby providing the
good” evaluation remains in Morris’s file.
24 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 9
Fiscal Court, et al. Fiscal Court, et al.
significantly to the hostile environment.” Lipsett v. negative; Morris was rated “very good.”4 It is difficult to
University of Puerto Rico, 864 F.2d 881, 905 (1st Cir. believe that Morris stands in danger of being fired, demoted,
1988). To establish that the harm was “based on her or transferred because her supervisor felt she was a “very
sex,” Williams “must show that but for the fact of her good” secretary. Thus, as a matter of law, Likins’s
sex, she would not have been the object of harassment.” harassment of Morris did not result in a tangible employment
Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. action being taken against her.
1982).
2. Was the supervisor’s harassment severe or
Thus, harassing behavior that is not sexually explicit pervasive?
but is directed at women and motivated by discriminatory
animus against women satisfies the “based on sex” Because plaintiff suffered no tangible employment action
requirement. See, e.g., Andrews v. City of Philadelphia, as a result of her “very good” evaluation, she must establish
895 F.2d 1469, 1485 (3d Cir. 1990) (“[T]he offensive that she was subjected to 5 severe or pervasive sexually
conduct is not necessarily required to include sexual harassing conduct by Likins. The Supreme Court explained
overtones in every instance.”); Lipsett, 864 F.2d at 905 in the recent case of Oncale v. Sundowner Offshore Services,
(“[verbal attack,] although not explicitly sexual, was Inc., 523 U.S. 75, 118 S. Ct. 998 (1998), that “Title VII does
nonetheless charged with anti-female animus, and not prohibit all verbal or physical harassment in the
therefore could be found to have contributed significantly workplace; it is directed only at ‘discriminat[ion] . . . because
to the hostile environment.”); Hall v. Gus Constr. Co., of . . . sex.’ We have never held that workplace harassment,
842 F.2d 1010, 1014 (8th Cir. 1988) (“Intimidation and even harassment between men and women, is automatically
hostility toward women because they are women can discrimination because of sex merely because the words used
obviously result from conduct other than sexual have sexual content or connotations.” Id. at 1002. The
advances.”); Hicks v. Gates Rubber Co., 833 F.2d 1406, Oncale Court went on to observe that
1451 (10th Cir. 1987) (rejecting narrow definition of
sexual harassment that requires predicate acts to be [t]he prohibition of harassment on the basis of sex
clearly sexual in nature); McKinney v. Dole, 765 F.2d requires neither asexuality nor androgyny in the
1129, 1138 (D.C. Cir. 1985) (“We have never held that
sexual harassment or other unequal treatment of an
employee or gourp of employees that occurs because of 4
Morris has introduced no evidence remotely showing that a “very
the sex of the employee must, to be illegal under Title good” evaluation was, at the Road Department, a negative evaluation
VII, take the form of sexual advances or of other (e.g., everyone else at the Department regularly received “excellent”
incidents with clearly sexual overtones. And we decline recommendations). In fact, Likins’s evaluation of Morris indicated that
to do so now.”). Cf. Daniels v. Essex Group, Inc., 937 she was a “very efficient and courteous employee.”
F.2d 1264, 1273 (7th Cir. 1991) (“Even though the 5
physical threat by Art was not specifically racial in This claim, pre-Ellerth, would have been called a hostile
environment sexual harassment claim by most courts. However, the
nature, it may be considered as a predicate act in Supreme Court stated in Ellerth that “[t]he terms quid pro quo and hostile
establishing racial harassment in a hostile work work environment are helpful, perhaps, in making a rough demarcation
environment, because it would have occurred but for the between cases in which threats are carried out and those where they are
fact that Daniels was black.”). not or are absent altogether, but beyond this are of limited utility.” 118
S. Ct. at 2264.
10 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 23
Fiscal Court, et al. Fiscal Court, et al.
workplace; it forbids only behavior so objectively Indeed, the litany of severe harassing incidents began when
offensive as to alter the “conditions” of the victim’s Plaintiff refused Likins’ sexual advance, and I believe that the
employment. “Conduct that is not severe or pervasive jury should be able to decide whether Likins’ conduct after
enough to create an objectively hostile or abusive work Plaintiff rejected him sexually was “because of sex;” the
environment — an environment that a reasonable person majority’s conclusion otherwise is in complete contravention
would find hostile or abusive — is beyond Title VII’s of the state of the law as it exists today. See Williams v.
purview.” General Motors Corp., 187 F.3d 553, 564-65 (6th Cir. 1999)
(collecting cases).
118 S. Ct. at 1003 (quoting Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993)). “‘[S]imple teasing,’ offhand The majority’s decision to view these other acts as
comments, and isolated incidents (unless extremely serious) somehow divorced from the four express acts of a sexual
will not amount to discriminatory changes in the ‘terms and nature is precisely the type of flawed legal analysis the
conditions of employment.’” Faragher, 118 S. Ct. at 2283 Williams Court rejected. Specifically, in Williams, this Court
(internal citations omitted). “[W]hether an environment is found that the district court had improperly “disaggregated the
‘hostile’ or ‘abusive’ can be determined only by looking at all [sexual harassment] plaintiff’s claims, contrary to the
the circumstances. These may include the frequency of the Supreme Court’s ‘totality of circumstances’ directives, which
discriminatory conduct; its severity; whether it is physically robbed the incidents of their cumulative effect . . . [and]
threatening or humiliating, or a mere offensive utterance; and improperly concluded that the conduct alleged to have created
whether it unreasonably interferes with an employee’s work a hostile work environment must be explicitly sexual.” 187
performance.” Harris, 510 U.S. at 23. F.3d at 561-62 (footnote omitted). The Williams Court
further criticized the district court because it “misconstrue[d]
We hold that, under these facts, Morris cannot establish that the ‘based on sex’ requirement of a hostile-work-environment
she was subjected to a hostile working environment. The sum claim and, in doing so, too narrowly construe[d] what type of
total of Likins’s actions that can be considered “because of conduct can constitute sexual harassment.” Id. at 564. The
sex” are: (1) several dirty jokes he told in plaintiff’s presence; Court went on to expressly hold “that the conduct underlying
(2) his alleged verbal sexual advance related to plaintiff’s a sexual harassment claim need not be overtly sexual in
evaluation; (3) his one-time reference to plaintiff as “Hot nature. Any unequal treatment of an employee that would not
Lips”; and (4) his isolated comments about plaintiff’s state of occur but for the employee’s gender may, if sufficiently
dress. Although Likins’s purported sexual advance was truly severe or pervasive under the Harris standard, constitute a
offensive, it was the only advance that Likins allegedly made. hostile environment in violation of Title VII.” Id. at 565; see
Most of Likins’s jokes were not aimed at the plaintiff, and Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).
that fact can be relied upon as part of a court’s conclusion that
a defendant’s conduct was not severe enough to create an The Williams Court opined as follows regarding the proper
objectively hostile environment. See Black v. Zaring Homes, analytical approach for a claim of sexual harassment under
104 F.3d 822, 826 (6th Cir.), cert. denied, 118 S. Ct. 172 Title VII, as adopted by our sister circuits:
(1997). Likins’s behavior seems to have consisted of the kind
of simple teasing, offhand comments, and isolated incidents [T]he law recognizes that non-sexual conduct may be
that Faragher made clear did not amount to discriminatory illegally sex-based where it evinces “anti-female animus,
and therefore could be found to have contributed
22 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 11
Fiscal Court, et al. Fiscal Court, et al.
Road Department and telephone calls to Plaintiff; sitting in changes in the terms and conditions of a plaintiff’s
his truck outside of the Road Department and making faces at employment.
Plaintiff; following Plaintiff home, pulling his vehicle up
beside her mailbox, and giving Plaintiff “the finger”; Plaintiff argues that we should include Likins’s alleged
destroying the televison set that Plaintiff occasionally watched “retaliatory conduct” (i.e., his alleged post-transfer visits at
at the Road Department; and throwing roofing nails onto her the Road Department, phone calls to plaintiff, and other
home driveway on several occasions -- should be considered allegedly harassing behavior directed at plaintiff) into the
as evidence to support her sexual harassment claim. hostile working environment equation. To do so would be a
mistake, as Morris does not claim that Likins acted this way
The majority maintains that to accept Plaintiff’s contention “because of sex.” There is no evidence in the record to
“would be a mistake, as Morris does not claim that Likins suggest that any of Likins’s alleged offensive post-transfer
acted this way ‘because of sex.’” The majority equates conduct was committed “because of sex.” Rather, it seems to
Likins’ actions with personal animus and belligerence toward have been motivated entirely by his personal displeasure
Plaintiff, but not sexual harassment under Title VII, and toward plaintiff and the complaints she made to Black.6 As
therefore concludes that the other incidents upon which we recently observed, “[P]ersonal conflict does not equate
Plaintiff relies cannot be used to show that she suffered a with discriminatory animus.” Barnett v. Dep’t of Veterans
change in the terms or conditions of employment “because of Affairs, 153 F.3d 338, 342-43 (6th Cir. 1998), cert. denied,
her sex.” I disagree with the majority’s position which takes 119 S. Ct. 875 (1999) (upholding a district court’s
a narrow view of the evidence and applies a literal determination that witness’s statements describing how
interpretation of the phrase “because of sex,” in contravention supervisor made it known that “he disliked the plaintiff and
to the Supreme Court’s directive that in a claim for sex used her as the butt of office jokes, are consistent with
discrimination brought under Title VII, the evidence should personal dislike rather than discriminatory animus”). Morris
be “judged from the perspective of a reasonable person in the cannot establish that Likins’s post-transfer conduct was
plaintiff’s position, considering ‘all the circumstances.’” See discrimination “because of sex” rather than simple
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 belligerence, see Richmond-Hopes v. City of Cleveland, No.
S. Ct. 998, 1003 (1998). As the Supreme Court stated in 97-3595, 1998 WL 808222 at *5 (6th Cir. Nov. 16, 1998),
Oncale, “[t]he real social impact of workplace behavior often and therefore this alleged harassing conduct, which was in no
depends on a constellation of surrounding circumstances, way7sexual, is not actionable as sexual harassment under Title
expectations, and relationships which are not fully captured VII.
by a simple recitation of the words used or the physical acts
performed.” Id. at 1003.
6
Here, I agree that Likins’ conduct such as placing roofing However, Likins’s conduct may very well constitute retaliatory
harassment, an issue we address infra at 12-16.
nails on Plaintiff’s driveway; following her home, pulling his
vehicle beside her mailbox and giving her “the finger;” and 7
starring at Plaintiff through her window at work while making Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999),
adds no support to the claim for sexual discrimination, as opposed to the
faces at her, was done in retaliation against Plaintiff. retaliation claim. In Williams, all of the events at issue took place within
However, I disagree that Likins was retaliating against the same context of actions by supervisors and co-workers in the
Plaintiff solely because she complained to Judge Black. workplace environment, and could appropriately be compared with
actions toward workers of a different gender to assess discrimination. See
12 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 21
Fiscal Court, et al. Fiscal Court, et al.
3. Retaliatory harassment ______________________________________________
Morris also argues that she was unlawfully retaliated CONCURRING IN PART, DISSENTING IN PART
against for notifying Black of Likins’s alleged harassment. ______________________________________________
This circuit has not definitively answered the question of
whether retaliatory harassment by a supervisor can be CLAY, Circuit Judge, concurring in part and dissenting in
actionable in a Title VII case. part. I concur in the majority’s decision to reverse the district
court’s order granting summary judgment to Plaintiff on her
The Second and Tenth Circuits have both recently held that Title VII retaliation claim against the County, as well as her
an employer can be liable for co-workers’ retaliatory Kentucky Civil Rights Act (“KCRA”) retaliation claim
harassment.8 See Richardson v. New York State Dept. of against the County and Likins. However, because I believe
Correctional Service, 180 F.3d 426, 446 (2nd Cir. 1999) (“an that questions of fact remain for trial regarding Plaintiff’s
employer [can] be held accountable for allowing retaliatory sexual harassment claim brought under Title VII against the
co-worker harassment to occur if it knows about that County; her sexual harassment claim brought under KCRA
harassment but fails to act to stop it”); Gunnell v. Utah Valley against the County, Likins, and Black; her § 1983 claim
State College, 152 F.3d 1253, 1265 (10th Cir. 1998). See also against Likins and Black for violation of her equal protection
Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) rights; as well as her state law claim for intentional infliction
(“Nothing indicates why a different form of retaliation — of emotional distress against Likins, I respectfully dissent
namely, retaliating against a complainant by permitting her from the majority’s decision to affirm the district court’s grant
fellow employees to punish her for invoking her rights under of summary judgment to Defendants on these claims.
Title VII — does not fall within the statute.”). However, no
circuit court has so far addressed, in the wake of Ellerth and A. Title VII Sexual Harassment Claim Against County1
Faragher, whether retaliatory harassment by a supervisor can
be actionable in a Title VII case. We today hold that it can. The majority holds that Plaintiff’s claim for sexual
harassment fails as a matter of law inasmuch as Likins’
The basis for our decision lies in a common rule of conduct toward Plaintiff that can be considered “because of
statutory construction: namely, that “[a] term appearing in sex” amounted to four incidents -- “(1) several dirty jokes he
told in plaintiff’s presence; (2) his alleged verbal sexual
advance related to plaintiff’s evaluation; (3) his one-time
Williams, 187 F.3d at 558-59. In this case, the incidents alleged after reference to plaintiff as ‘hot lips’; and (4) his isolated
Judge Black’s order transferring Likins away from Morris are quite comments about plaintiff’s state of dress[ ]” -- which did not
distinct, and are separated by explicit intimations of retaliation, not sex amount to discriminatory changes in the terms and conditions
discrimination. In addition, there is no allegation that, for example, Likins of Plaintiff’s employment. In so holding, the majority
viewed with equanimity complaints lodged against him by a male, while declines to accept Plaintiff’s contention that Likins’ other acts
retaliating savagely in the case of a female complainant. Were such against her -- such as his alleged post-transfer visits at the
circumstances to exist, the Williams “aggregation” analysis might
appropriately be applied, but there are no such allegations or record
support in this case.
1
8 I will consider Plaintiff’s claim for sexual harassment against the
We today take no position on whether an employer can be liable for County, Likins and Black brought under the KCRA in tandem with this
co-workers’ retaliatory harassment. issue.
20 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 13
Fiscal Court, et al. Fiscal Court, et al.
discovering an obscenity written on his truck windshield, and several places in a statutory text is generally read the same
(3) discovering that a picture of his daughter he kept at work way each time it appears.” Ratzlaf v. United States, 510 U.S.
was defaced). 135, 143 (1994). The Supreme Court has made it clear that
severe or pervasive harassment by a supervisor based on an
III individual’s sex can constitute “discrimination” under 42
U.S.C. § 2000e-2(a)(1), which forbids an employer “to
The district court’s grant of summary judgment is discriminate against any individual with respect to his
AFFIRMED in part, REVERSED in part, and REMANDED compensation, terms, conditions or privileges of employment,
for further proceedings consistent with this opinion. because of such individual’s . . . sex.” See Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257,
2264 (1998). It naturally follows that, under Ellerth, severe
or pervasive supervisor harassment that is engaged in because
an individual “has opposed any practice made an unlawful
employment practice by” Title VII also can constitute
“discrimination” under 42 U.S.C. § 2000e-3(a). Section
§ 2000e-3(a) forbids
an employer to discriminate against any of his employees
. . . because [the employee] has opposed any practice
made an unlawful employment practice by this
subchapter, or because [the employee] has made a
charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this
subchapter.
42 U.S.C. § 2000e-3(a) (emphasis added).
However, just as an employer has the opportunity to prove
an affirmative defense to severe or pervasive sexual
harassment by a supervisor, it follows that an employer
should also have the opportunity to prove an affirmative
defense to severe or pervasive retaliatory harassment by a
supervisor. Under agency principles, retaliatory harassment
does not, in and of itself, constitute a “tangible employment
action.” See Faragher v. City of Boca Raton, 524 U.S. 775,
118 S. Ct. 2275, 2293 (1998) (“No affirmative defense is
available, however, when the supervisor’s harassment
culminates in a tangible employment action, such as
discharge, demotion, or undesirable reassignment.”)
14 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 19
Fiscal Court, et al. Fiscal Court, et al.
(emphasis added). Therefore, an employer is entitled to the did not intend this violation to be the basis of a § 1983
same affirmative defense for retaliatory harassment that it is claim.”). Congress chose to limit Title VII liability to
entitled to for sexual harassment, since “when no tangible employers only, and Morris cannot use § 1983 to circumvent
employment action is taken, a defending employer may raise Congress’s intention.
an affirmative defense to liability or damages, subject to proof
by a preponderance of the evidence . . . .” Ellerth, 118 S. Ct. D. Intentional infliction of emotional distress claims
at 2270. This defense
Lastly, Morris claims that the district court improperly
comprises two necessary elements: (a) that the employer granted summary judgment on her state intentional infliction
exercised reasonable care to prevent and correct promptly of emotional distress claims. Under Kentucky law, “[o]ne
any [] harassing behavior, and (b) that the plaintiff who by extreme and outrageous conduct intentionally or
employee unreasonably failed to take advantage of any recklessly causes severe emotional distress to another is
preventative or corrective opportunities provided by the subject to liability.” Craft v. Rice, 671 S.W.2d 247, 251 (Ky.
employer to avoid harm otherwise. While proof that an 1984). The elements of proof necessary to sustain a claim of
employer had promulgated an anti-harassment policy outrageous conduct are: (1) intentional or reckless conduct on
with complaint procedure is not necessary in every the part of the wrongdoer; (2) outrageous and intolerable
instance as a matter of law, the need for a stated policy conduct in that it offends against the generally accepted
suitable to the employment circumstances may standards of decency and morality; (3) a causal connection
appropriately be addressed in any case when litigating the between the wrongdoer’s conduct and the emotional distress;
first element of the defense. And while proof that an and (4) the emotional distress must be severe. See Humana
employee failed to fulfill the corresponding obligation of of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 2-3 (Ky. 1990).
reasonable care to avoid harm is not limited to showing Kentucky law requires that the conduct in question must be “a
any unreasonable failure to use any complaint procedure deviation from all reasonable bounds of decency and . . .
provided by the employer, a demonstration of such utterly intolerable in a civilized community.” Id. at 3 (citation
failure will normally suffice to satisfy the employer’s omitted). The conduct of the County and Black clearly did
burden under the second element of the defense. not meet this very high threshold. Additionally, although
Likins’s alleged conduct was truly offensive, it also did not
Ellerth, 118 S. Ct. at 2270. rise to the level of outrageousness necessary for recovery
under Kentucky law. See, e.g., Allen v. Clemons, 920 S.W.2d
In sum, we today modify our standard for proving a prima 884 (Ky. App. 1996) (threshold level of outrageousness not
facie case of Title VII retaliation. A plaintiff must now prove met where defendant erected billboard in his yard stating
that: (1) she engaged in activity protected by Title VII; (2) this “Danger—Child Molester in the Community,” after plaintiff
exercise of protected rights was known to defendant; (3) was convicted of sexual abuse); Humphress v. United Parcel
defendant thereafter took adverse employment action against Service, Inc., No. 97-6409, 1998 WL 869985 (6th Cir. Nov.
the plaintiff, or the plaintiff was subjected to severe or 30, 1998), cert. denied, 119 S. Ct. 1576 (1999) (threshold
pervasive retaliatory harassment by a supervisor; and (4) level of outrageousness not met where a man, after filing a
there was a causal connection between the protected activity labor grievance, was subjected to a “campaign of harassment”
and the adverse employment action or harassment. See by his co-workers which included (1) finding grease placed on
Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th various parts of his work truck where it did not belong, (2)
18 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 15
Fiscal Court, et al. Fiscal Court, et al.
responding inadequately to Morris’s complaints. See Wu v. Cir.), cert. denied, 498 U.S. 984 (1990) (outlining previous
Thomas, 996 F.2d 271, 274 (11th Cir. 1993), cert. denied, 511 standard for prima facie Title VII retaliatory harassment
U.S. 1033 (1994) (“a reasonable employer could not have case). If and when a plaintiff has established a prima facie
known for certain whether acts short of firing, demoting, or case, the burden of production of evidence shifts to the
refusing to hire an employee could violate Title VII”). The employer to “articulate some legitimate, nondiscriminatory
language of the KCRA generally tracks the language of Title reason” for its actions. Ibid. (quoting McDonnell Douglas
VII and, thus, “should be interpreted consonant with federal Corp. v. Green, 411 U.S. 792, 802 (1973)). The plaintiff,
interpretation.” Meyers, 840 S.W.2d at 820. Therefore, who bears the burden of persuasion throughout the entire
Black could not have violated clearly established statutory process, then must demonstrate “that the proffered reason was
rights under the KCRA, either. Because Black is entitled the not the true reason for the employment decision.” Ibid.
defense of qualified immunity under Kentucky law, we affirm (quoting Texas Dept. of Community Affairs v. Burdine, 450
the grant of summary judgment on Morris’s state law U.S. 248, 256 (1981)). The employer may also prove an
retaliation claims against Black. affirmative defense to retaliatory harassment by a supervisor
by demonstrating: “(a) that the employer exercised reasonable
C. § 1983 claims care to prevent and correct promptly any . . . harassing
behavior, and (b) that the plaintiff employee unreasonably
The district court also granted summary judgment to Black failed to take advantage of any preventative or corrective
and Likins on Morris’s claims brought under 42 U.S.C. opportunities provided by the employer to avoid harm
§ 1983. The showing a plaintiff must make to recover on an otherwise.” Ellerth, 118 S. Ct. at 2270.
employment discrimination claim under Title VII mirrors that
which must be made to recover on an equal protection claim Applying this new standard to the instant case, we first hold
under section 1983. See Risinger v. Ohio Bureau of Workers’ that a reasonable juror could conclude that Likins’s behavior
Compensation, 883 F.2d 475, 483-84 (6th Cir. 1989). Since after the lodging of Morris’s complaint constituted severe or
we have affirmed the dismissal of Morris’s sexual harassment pervasive retaliatory harassment. Assuming plaintiff’s
claims under Title VII, her analogous § 1983 sexual version of the facts, Likins (1) visited the Road Department
harassment claims were therefore properly dismissed. unaccompanied a total of fifteen times, and called Morris on
Additionally, even though we have reversed and remanded the telephone over thirty times, despite Black’s warnings,
Morris’s retaliation claims, the district court’s grant of solely for the purpose of harassing Morris; (2) drove to the
summary judgment on her analogous § 1983 retaliation claims Road Department on several occasions, and simply sat in his
was also proper. Whatever the scope or source of a truck outside the Department building, looking in Morris’s
constitutional claim of improper retaliation in other window and making faces at her; (3) followed Morris home
circumstances, where the plaintiff asserts that she has been from work one day, pulled his vehicle up beside her mailbox,
retaliated against for filing a complaint under Title VII, her and gave her “the finger”; (4) destroyed the television Morris
sole federal remedy is the cause of action provided for under occasionally watched at the Road Department; and (5) threw
Title VII. See Day v. Wayne County Bd. of Auditors, 749 F.2d roofing nails onto her home driveway on several occasions.
1199, 1204-05 (6th Cir. 1984) (“Here the district court found This behavior clearly constitutes more than simple teasing,
that the defendants did not discriminate against the plaintiff. offhand comments, and isolated incidents that Faragher
The only wrongful act was their retaliation for the plaintiff’s indicated did not amount to discriminatory changes in the
actions, a violation of Title VII. We conclude that Congress terms and conditions of a plaintiff’s employment. Thus, we
16 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 17
Fiscal Court, et al. Fiscal Court, et al.
must remand this case to the district court for further (Emphasis added).
proceedings. There, the County will have the opportunity to
prove the affirmative defense outlined in Ellerth. This court has held that “an individual
employee/supervisor, who does not otherwise qualify as an
B. State law sexual harassment claims ‘employer,’ may not be held personally liable under . . . KRS
Chapter 344,” because the KCRA “mirrors Title VII . . . .”
Morris sued the County, Black, and Likins under the See Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir.
Kentucky Civil Rights Act (“KCRA”), KY. REV. STAT. 1997). Though this statement from Wathen is generally true,
344.010 et seq. The language of the KCRA generally tracks it clearly does not apply to retaliation claims brought under
the language of Title VII and, thus, “should be interpreted KY. REV. STAT. § 344.280. This section does not “mirror” 42
consonant with federal interpretation.” Meyers v. Chapman U.S.C. § 2000e-3(a), the analogous retaliation provision of
Printing Co., Inc., 840 S.W.2d 814, 820 (Ky. 1992). Title VII, which forbids retaliation by “an employer.” Rather,
Therefore, since plaintiff’s Title VII sexual harassment claims § 344.280 forbids retaliation by “a person.” The Kentucky
against the County were properly dismissed, her state law retaliation statute plainly permits the imposition of liability on
sexual harassment claims were properly dismissed as well. individuals. Therefore, the district court’s holding that Black
However, since we reverse the grant of summary judgment on and Likins could not be held individually liable under the
Morris’s Title VII retaliation claim against the County, we Kentucky Civil Rights Act was incorrect. For this reason, we
also reverse the grant of summary judgment on Morris’s state reverse the grant of summary judgment on Morris’s state law
law retaliation claim against the County. Since the KCRA retaliation claims against Likins.
should be interpreted consonant with federal interpretation,
the County will have the opportunity to prove the affirmative However, we affirm the grant of summary judgment for
defense outlined in Ellerth to shield it from liability against Black on Morris’s state law retaliation claims against him on
the state law retaliation claim as well. qualified immunity grounds. Qualified immunity is a defense
that can be invoked under Kentucky law. “[G]overnment
The district court granted summary judgment for Black and officials are not subject to damages liability for the
Likins on Morris’s state law claims because it believed that performance of their discretionary functions when their
Black and Likins could not be held individually liable under conduct does not violate clearly established statutory or
the Kentucky Civil Rights Act. Plaintiff argues that KY. REV. constitutional rights of which a reasonable person would have
STAT. § 344.280 permits the imposition of individual liability known. In most cases, qualified immunity is sufficient to
on Black and Likins. The statute reads: protect officials who are required to exercise their discretion
and the related public interest in encouraging the vigorous
It shall be an unlawful practice for a person, or for two exercise of official authority.” McCollum v. Garrett, 880
(2) or more persons to conspire: S.W.2d 530, 534 (Ky. 1994) (quoting Buckley v. Fitzsimmons,
509 U.S. 259, 268 (1993) (internal quotation marks omitted)).
(1) To retaliate or discriminate in any manner against a Black was performing a discretionary function when
person because he has opposed a practice declared responding to Morris’s complaints, and this circuit has never
unlawful by this chapter, or because he has made a before said that retaliatory harassment is illegal under Title
charge, filed a complaint, testified, assisted, or VII. Because of this, Black could not have violated clearly
participated in any manner in any investigation, established statutory rights under Title VII by allegedly
proceeding, or hearing under this chapter . . . .