Kentucky Injury Law Blog

In the last week, two new sexual harassment lawsuits were filed in Jefferson County Circuit Court in Kentucky. The suits also claim retaliation and wrongful termination, claims which often accompany sexual harassment or discrimination allegations.

In the first case, Mary Sue Turner alleges she was harassed by a fellow employee while she was employed at the Jefferson County Clerk’s office. She has sued the clerk’s office and County clerk Bobbie Holsclaw. Ms. Turner claims that Mr. Clark touched her inappropriately, made lewd gestures with his body, and even slept in her office in the hopes of being intimate with her. Complaints about his behavior allegedly fell on deaf ears and he continued to harass her. After she complained about the harassment and reported that the office was accepting inappropriate gifts from local businesses, Ms. Turner contends that Ms. Holsclaw gave her bad performance reviews and wrongfully terminated her.

The second case was filed by Dr. Clay Kendall, a veterinarian that was employed by Louisville Metro Animal Services. The lawsuit states that the former director of the department, Gilles Meloche, sent her sexually explicit phone messages and touched her inappropriately. Dr. Kendall also claims that Mr. Meloche lured her to Proof on Main for a supposed business meeting between the two of them and one other individual. Mr. Meloche was intoxicated upon her arrival and proceeded to talk about Dr. Kendall’s personal life rather than business. The third party that Mr. Meloche said would be there stated after the fact that she was never requested to join them at the restaurant. Dr. Kendall complained to officials and showed them lewd text messages from Meloche, but they allegedly did not take any action to remedy the situation. Subsequently two new vets were hired to replace Dr. Kendall even though she allegedly had a contract to provide veterinary services.

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Over 40 years ago, the Civil Rights Act of 1964 was enacted to abolish discrimination in several areas including voting rights, education, and employment. Title VII of this act addresses workplace discrimination. Under this portion of the Act, employees cannot be discriminated against for their race, color, religion, sex or national origin. While Title VII is fairly specific regarding what factors constitute discrimination, it is vague in its definition of who is considered an employee and is therefore protected by this part of the Act. Two types of individuals that are left in limbo by this vagueness are interns and volunteers.

A recent case concerning this situation is Bryson v. Middlefield Fire Department. Ms. Bryson alleged that she was a victim of sexual harassment while serving as a volunteer firefighter in Middlefield, Ohio. When she refused her supervisor’s sexual advances she was terminated. The Equal Employment Opportunity Commission (EEOC) confirmed that she could file a suit claiming she was “sexually harassed and subjected to a sexually hostile work environment.” In response the fire department claimed Ms. Bryson was not covered under Title VII because she was a volunteer firefighter member — not an employee — and that the fire department was not an employer because it had less than 15 paid employees, a requirement to be considered an employer. The lower court ruled in favor of the fire department and Ms. Bryson took her case to the Sixth Circuit Court of Appeals, which hears cases for Kentucky, Michigan, Ohio and Tennessee.

The Sixth Circuit disagreed with the lower court’s decision and reversed it. Basing their decision on two U.S. Supreme Court cases, the judges ruled that more than just pay needs to be considered when determining if an entity is an employer and an individual is an employee. According to the Sixth Circuit, Bryson “put forth evidence that the firefighter-members received worker's compensation coverage, insurance coverage, gift cards, personal use of the Department's facilities and assets, training, and access to an emergency fund…and that, for particular portions of the relevant time period, certain firefighter-members received a one-time, lump-sum retirement payment and others received an hourly wage.” So even though the volunteer firefighters may not receive regular paychecks, they are compensated in other ways, making them employees, and consequently making the fire department an employer. In October, 2011, Ms. Bryson’s case was remanded back to the district court which must now decide whether or not the sexual harassment, retaliation and wrongful termination occurred.

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