*1 AMMERMAN, Phyllis F. Debra Guthrie, Linda W.
W.
Simons, Appellants,
THE BOARD OF EDUCATION OF COUNTY, and its mem-
NICHOLAS only, capacity in their official to-
bers Cleaver, Zachary, Louise
wit: John
Jr., Dale, Smoot, David James Vice, Appellees.
Samuel
No. 1996-SC-1061-DG. Kentucky.
Supreme Court of
Oct. *3 Jr., Simpson, Anggelis, Gor-
T. Bruce don, Roberts, Lexington, for Simpson <& Appellants. Letcher, Richardson,
Dawn Curran Carlisle, Hughes, Robert L. Che- Smith & noweth, Bale, Gary Law Of- J. Chenoweth fice, Frankfort, Appellees. Jr., Walker, Fitzpatrick, Ron L. Jane V. Lexington, for Ami- Fitzpafrick, Brooks & Curiae, Kentucky Education cus Associa- tion. McGinnis, Caldwell, McBrayer,
Brent Kirkland, Frankfort, Richard M. Leslie & Conliffe, Busch, Sullivan, F. Sand- Edward Sullivan, Louisville, for Amicus mann <& Curiae, Kentucky of Counties. Association OF THE COURT OPINION teachers Appellants, current or former County Elementary at the Nicholas School, harassment brought sexual Board of Edu- against Appellees, case County cation Nicholas and members in their of Education official Board any bring capacities. Appellants did sexual harasser actions may have had a against individuals who his duty directly supervise conduct. sought upon based Appellants damages Harry Spickler, the conduct of affirmed, co-worker Appeals holding Court of County although teacher at the Nicholas Ele- claims were couched in contract, mentary School from 1977 until in a terms of breach of with a fifteen contract, tort, limitations, variety years of claims statute of sounding the claims harassment, violation, fact statutory only involved sexual including violation year a five statute of seq., of KRS 344.010 et limitations. The civil Kentucky Civil claims, held, the Court Act. were thus time-barred because the Janu- appears From the evidence it that Har- ary 1993 involving Appellant incident Si- ry Spickler habitually accosted his female only mons was the incident limi- colleagues sexually in a overt manner. period tations single, and that a isolated unnecessary to recount the details of *4 comment is legally insufficient to consti- Spickler’s conduct. say is sufficient to tute sexual holding, harassment.1 so that his highly behavior was lewd and the Court of that it noted did not appropriate workplace. in Through Spickler’s condone conduct or the school years complaints numerous were made administrators’ manner of handling com- Spickler about supervisory per- to school plaints, obligated but that it was to ob- sonnel. response complaints to the required periods. serve the limitations wholly inadequate was pa- and included Among the defenses now asserted tronizing of the complainants, indications against Appellants and the defense we be- amusement, indifference, of sugges- dispositive lieve to be of Appellants’ all Spickler tions that merely be avoided. Fi- claims, 344, except those based on KRS is however, nally, Spickler May was fired in however, sovereign immunity. Appellants, 1993, of soon after the first formal written contend that the im- sovereign doctrine of complaint against was filed him. At a munity inapplicable they here because hearing Inquiry before the Tribunal of the required were employment to enter into an Education, Kentucky State Board of fif- upon contract2 which imposed the Board a verify teen teachers came forward to duty protect to them from the mistreat- Spickler’s offensive nature of conduct. subjected. they ment to which were While Appellants’ The trial court dismissed acknowledging sovereign immunity that claims, finding Appellants that had failed applicable to contract claims as well as to to state a claim for relief of for breach claims, effect, tort Appellants argue, contract; that tort claims were not right a contract to be free from sexual actionable and were otherwise time- statutory harassment exists virtue of barred; alleging that the claims violations mandate3 and that it accompanied must be 161.190 KRS and 161.164 were not ac- by a remedy for its breach. Accordingly, tionable; civil rights and that the claims they reason that sovereign immunity our were barred the five-year statute of jurisprudence cannot leave them without a 413.120(6). In regard remedy. damages claims, to dismissal of the civil the trial court noted that Appellees respond the last that the doctrine 1993, immunity incident of occurred sovereign applies harassment to to boards of Simons, Appellant reported. but acting was education and board members Thus, found, capacities; Appel the trial court the claims their official that even if January became time-barred in 1993 as lants’ may claims be characterized as con claims, reported the last prior sovereign incident occurred tract rather than tort January 1988. immunity applies; nevertheless 1. Galloway v. General Motors Service Parts 161.730. 2.KRS 1164, Operations, 78 F.3d 1167 Cir. 1996). 3.KRS 160.290.
797 agen simply as local boards exist express sovereign, waiver school without an are barred immunity, claims asserted Thus local government.... cies state § agree. KY. 231. We CONST. express districts fall school of our language of section sovereign the defense of While Constitution, § im provides which claims, usually arises from tort immunity 4 “brought to suits munity v. holds University Louisville Martin sovereign if im Even Commonwealth.” sovereign immunity ap unmistakably that limited as munity interpreted were “The plies well to contract claims: doc as recovery government where units actions in tort trine extends both upon could constitute a claim “would or This stated in proposition contract.” was Ward,5 as in the Foley treasury,” proposed Co. fol Construction lows: opinions in dissenting [v. Cullinan Jef County, (Ky. cases sovereign The review 418 S.W.2d ferson
immunity
1967)],
that such
forces
conclusion
supra,
Louisville Metro.
Department
cases as the Watkins [v.
Ky.,
Simpson,
Sewer Dist.
Highways
Ky., Ky., 290
Com.
(1987),
cert. denied
U.S.
(1956)]
and Michael[Hum
(1987),
local
98 L.Ed.2d
S.Ct.
Co., Ky.,
B.
&
phreys v. J. Michael
immunity.8
*5
districts would retain
school
(1960)]
cases
the
cases
Thus,
claims, except
Appellants’
the
all of
therein,
they
far
cited
in so
as
have
claims,
are
the doc-
rights
civil
barred
permitted the state to be sued on a
sovereign immunity.
trine of
damages
express
contract or for
without
consent,
legislative
are
To
unsound....
regard
Appellants’
-to
alle
With
the
cases mentioned
extent
are
Kentucky
Civil
gations of violations
herewith,
they
inconsistent
are overr
lawsuit,
Act,9
Rights
claims in this
core
uled.6
recently
held that the doctrine
Court
ultimate
question
On the
school board
immunity
prevent
sovereign
does
Clevinger
sovereign immunity,
v. Board of
or
against
suit
Commonwealth
controlling.
is
In an
Education7
extensive
agencies based
this Act.10Under the
upon
sovereign
review of the doctrine of
immu-
Act,
Rights
it is unlawful
Civil
nity
applies
county
it
as
to
boards
edu-
sex,
to
employer,
for an
basis
cation,
that:
this Court held
“discriminate
an individual with re
any question
has
been
There
never
terms, conditions,
spect
compensation,
to
about the status of a local school board
employment
[or]
...
privileges
but,
agency
government,
as
if
an
limit,
classify employees in
segregate, or
were,
beyond
there
such is now
deprive
...
any way which would
tend
argument
realm of
of our deci-
because
of employment opportunities
an individual
sion in Rose v. The Council
Better
as
adversely
affect status
an
otherwise
Education,
Inc., Ky.,
6.
at 396.
Id.
11. KRS 344.040.
(1990).
Ky.,
7.
work
In
the United States Su
Civil
gov
claims are
preme Court decided the watershed case
erned
five-year
statute of limita
Vinson,14
Saving
Meritor
Bank
which
413.120(2).
provided
tions
in KRS
In a
held that a sexual harassment claim can be
lawsuit,
sexual harassment
the limitations
brought
upon
based
a hostile or abusive
period begins on the date the act of
work environment. For sexual harass
harassment occurs.20 Yet if the discrimi
ment to be actionable under the Meritor
natory act
“continuing
constitutes a
viola
standard, it
sufficiently
must be
severe or
tion,” an equitable doctrine often used in
pervasive so as to alter the conditions of
claims,
hostile environment
then the limi
plaintiffs
employment and create an
tations period begins to run anew with
working
abusive
environment.15 In other
each succeeding discriminatory
act.21
words, hostile environment discrimination
Generally,
preceding
“those violations
exists “when
workplace
permeated
filing of the complaint by the full limita
intimidation,
discriminatory
ridicule,
foreclosed,”22
period
yet
tions
are
the con
sufficiently
and insult
severe or
tinuing
may
violation doctrine
allow
pervasive to alter the conditions of the
plaintiff
bootstrap
incidents that oc
employment
victim’s
and create an abusive
curred outside the
working
Moreover,
environment.”16
onto the sexual harassment claim.
“incidents must
episodic;
be more than
they
determining
apply
must
whether to
sufficiently
continuous and
doctrine,
the continuing violation
the Unit
concerted
order to
pervas
be deemed
ed
court of Appeals
States
for the Fifth
ive.”17
As stated
the United States
*6
stated,
Circuit has
Supreme Court in
Sys
Harris v. Forklift
tems, the harassment must also be both
The inquiry,
necessity,
turns
objectively
subjectively
offensive as
facts and context of each particular case.
by
determined
at
“looking
all the circum
Relevant to the determination are the
18
stances.”
may
These circumstances
in
factors,
following three
which we dis-
clude “the frequency
discriminatory
cuss,
of the
by
but
no means consider to be
conduct;
severity;
physi
whether it is
subject
exhaustive. The first is
matter.
cally threatening
humiliating,
or
or a mere
alleged
Do the
acts involve the same
utterance;
offensive
discrimination,
and whether it unrea-
type of
tending to con-
17, 23,
371,
Meyers
Chapman
367,
13.
Printing, Ky.,
v.
840
18. 510 U.S.
114 S.Ct.
126
814,
(1992).
295, 302;
821
Faragher,
L.Ed.2d
Ammerman
her
reasoning
supported
Our
Ap
claim
no
than 1993.
time-barred
later
Parts
Galloway v.
Motors Service
General
pellant
experi
Guthrie
that she
in which the United States
Operations,27
and 1985
1986.
enced incidents
for the Seventh Circuit
Court
no
Thus her claim became time-barred
vexa
analysis
an astute
provided
Appellant
than
Only
later
1991.
Simons
out
occurring
“when conduct
tious issue of
to have
alleges
inappropri
been accosted
may,
vir
of limitations
side
ately
Spickler within the limitations
conduct, made
its link with recent
tue of
period once, in
She also claims
—
*7
so,
it
doing
for
claim.”28
legal
a basis
a
that
of
experienced
episode
she
another
that,
harassment so
sexual
“[a]cts
noted
by Spickler in
decade
harassment
a
they
that
discrete
time or circumstances
pe
earlier and well outside
cannot
each other
reason
do not reinforce
riod.
chain,
single
into a
ably
together
be linked
most
al
The
recent
incident
conduct,
to defeat
single
a
course
Simons,
brief,
a
com
off color
leged
of limitations.”29
Seventh
ment, cannot constitute actionable sexual
stated,
also
Circuit
a
law because this
harassment as matter of
arises when
The most difficult ease
satisfy
single, isolated comment does not
acts
harassing
long-continued
and
series
pervasive
and
standard
the severe
series,
definitely
pattern,
and
“reasonably
thought
consti-
are
cannot
Waltman,
Berry
(quoting
27.
24. (citing Elec Koelsch Beltone Id. at 29. 786-87, (7th Cir. Corp., Faragher, 524 U.S. at at 46 F.3d tronics 118 S.Ct. 25. 1995)). at 141 L.Ed.2d 676. Waltman, 1989). F.2d cir. at
merely events, a set of yet discrete it removing minations and debilitating uncer- was long evident plaintiff before the fi- tainty about legal liabilities.”32 nally sued that she was the victim of reasons, For foregoing we affirm the actionable harassment. It seems to us courts below. case, that in such a while she can still provided sue that the last act of harass- C.J., COOPER, LAMBERT. ment occurred within the statute limi- KELLER, JOHNSTONE, JJ., concur. tations, she cannot reach back and base COOPER, J., separate files a concurring her suit also on conduct that occurred opinion LAMBERT, C.J., in which outside limitations; the statute of for KELLER, J., join. she has no excuse waiting long.30 that In finally issue, resolving the the Seventh WINTERSHEIMER, J., files a separate Circuit concluded that under the continu- dissenting opinion in which GRAVES and doctrine, ing violation STUMBO, JJ., join. (in plaintiff may “[T]he not base her COOPER, Justice, concurring. his) some cases suit on conduct that I majority concur in .the opinion because occurred outside the statute of limita- agree I the causes of action in this tions unless it would have been unrea- case were barred the statute limita- expect sonable to plaintiff to sue However, believe, tions. I also as ex- conduct, before the statute ran on that pressed my dissenting opinion in De- as in a case in which the conduct could Furr, partment Corrections v. constitute, or be recognized, as action- (2000), S.W.3d 615 these causes of able harassment only the light of precluded action are principle later, events that occurred sovereign immunity.
period of the statute of limitations.”31 We believe that this approach is the most LAMBERT, C.J., KELLER, J., join practical. reasonable and concurring this opinion. Applying principle to the instant WINTERSHEIMER, Justice, case, it is clear from the that Appel- facts dissenting. lant subject Simons was the of two isolated episodes harassment. Due to I respectfully must dissent from the ma- significant expanse separating of time jority opinion because statute of limita- episodes, these they joined cannot be to- tions does not bar the civil claims gether to form legal the basis for a claim. presented when there strong is a case of remains, therefore, What a single off- continuing sexual harassment as there is color comment made within the limitations here.
period. single This incident legally *8 Assembly Kentucky The General of has sufficient to constitute actionable sexual authorized the Commonwealth to be sued harassment. for a Kentucky violation of the Civil Rights
Although we do not condone the conduct Act in codified KRS 344.010 et seq. My herein, complained of by Spickler either in reading of the record this ease indicates officials, school it is imperative plain- that that candidly the Board of Education has tiffs’ claims promptly be filed and that conceded that 344 Chapter amounts to a observed, periods limitations “thereby be waiver sovereign immunity, of both in enhancing original the likelihood of accurate response peti- deter- brief and its to the (citing Donnelley 30. Id. at 1167 Doe v. R.R. & 31. Id. Co., 439, (7th Cir.1994); Sons 42 F.3d 446 560, (7th Kiley, Selan v. 969 F.2d 565-66 Galloway at 1165. Cir.1992)).
801
of
questions are matters
Such
recent
ronment.
rehearing.
for
This Court has
tion
of law and are not
v.
not
Department
questions
Corrections
fact and
ly decided
of
(2000),
Furr,
.,
Approxi-
Dorsey
Ky
summary judgment.
615
suitable
Kentucky,
subjected
of
were
to the
that
the Commonwealth
17 teachers
mately
Kentucky
under
the
Civil
employer
an
1983 and 1993. Whether
between
abuse
of
Act,
enjoy
privilege
not
the
Rights
does
continu-
these acts were severe
all of
immunity.
majority
The
deci
sovereign
work
a hostile
enough to constitute
ing
briefly acknowledge
applica
the
sion does
certainly
question for a
a
environment is
the
civil
tion of both
federal
Printing
Chapman
v.
jury.
Meyers
Cf.
Bucklew, 178
rights
Kerns v.
acts.
(1992).
Co.,
The hos-
Ky., 840
814
Cf.
(1987),
68,
which
W.Va.
357 S.E.2d
was established
tile work environment
provides
analysis
a detailed
of state sover
Spickler
and his
only by the behavior
of the
eign immunity
supremacy
and the
by
but also
against
actions
the individuals
Act
The
Federal
Act.
Federal
Civil
teachers
acts
other
female
his
344.010.
is reflected KRS
through the
acknowledged
were
which
this
Court
majority
years.
originally
As
noted
opinion
failure
a
no
consequences of
initial
“We have
doubt
accept
devastating
opinion
the
in its
a
environment is
error.
hostile
appellants’
hostile work
serious
contention
the
”
beyond question
It is
that the behavior
There was
work environment existed....
demeaning,
the dismissed teacher was
Board
the
testimony
Inquiry
the
before
unac-
generally
crude and
intolerable and
“Spick-
of Education that
Board
beyond
ceptable.
is further
belief
knowledge
common
ler’s conduct was
totally
a
work environ-
created
hostile
the
and that all teachers
among
teachers
a
ment.
civil
violation can be of
A
him.”
tried
avoid
span
nature
a
continuing
over considerable
Here,
is a
the
environment
small
work
Cabinet,
time.
v.
Leonard
Corrections
elementary
and it is reasonable to
school
(1992).
Ky.App.,
S.W.2d 668
of the accused
conclude that the conduct
413.120(2)
five-year
provides for
every
impact
an
on almost
female
had
limitations,
period
with the
of limitations
system. The instances
teacher
the
run on
on
beginning to
the date which
General-
ongoing
abuse were
chronic.
If
act occurred.
can demon-
plaintiff
ly, a claimant must show a series
related
continuing,
strate that the violation is
then
which falls
“one more of
within
acts
limitation
to run with each
begins
time
period or
maintenance of
Here,
five-year period
new violation.
system
before and
discriminatory
both
1993,
3,
began
May
Spick-
run on
when
Gutowsky County
during
period.”
system.
ler was
terminated
school
Cir.1997).
Placer,
F.3d 256
Inc.,
Systems,
Harris v. Forklift
within state. the state and its
political person subdivisions constitute a employer. This section the statute was amended in specifically to ex- BLAIR, Appellant, James government clude the United States and a qualified private membership club exempt HENDRICKS, Appellee. Robert from federal disability taxation in discrimi- cases only. nation the General No. 1998-CA-002211-MR. Assembly opportunity had the to exclude Court of of Kentucky. specifically the Commonwealth and did not choose to do so. 23, 2000. June general KRS 344.020 pur- states Rehearing Aug. Denied poses of the Kentucky Civil Act as follows: safeguard
To individuals all discrimination
state from because of fa-