MEMORANDUM OPINION AND ORDER
Plaintiffs bring this age and gender discrimination action against their former employer, Goodwill of Kentucky, Inc., under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Kentucky Civil Rights Act, along with state-law claims against Goodwill and its employees for intentional infliction of emotional distress, defamation and invasion of privacy against Goodwill and its employees.
The Defendants have moved to dismiss all claims brought by Plaintiff Glenna Bar-go, and certain claims brought by Plaintiff Vicki Tuggle (Doc. # 3). More specifically, Defendants move to dismiss Plaintiff Tuggle’s claim under Title VII, as well as her intentional infliction of emotion distress, defamation and invasion of privacy claims. Plaintiffs have responded in opposition (Doc. # 4), and Defendants have replied (Doc. # 5); thus, this motion is ripe for review. For the reasons stated herein, the Court will grant Defendants’ motion to dismiss.
I. FACTUAL BACKGROUND
Because this matter is before the Court on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the following facts are taken from Plaintiffs’ Complaint and accepted as true:
A. Plaintiff Glenna Bargo
Plaintiff Bargo, who was at least forty (40) years old at all times relevant to this suit, was employed by Defendant Goodwill Industries, Inc. (“Goodwill”) from November 1999 through September 2011. During that period, Bargo consistently received good performance evaluations. Her last position with the company was as Store Manager of the Harlan, Kentucky store.
Bargo alleges that Defendant Kristel Fryman was promoted to Vice President of Goodwill some time between October 2010 and September 2011. Shortly after her promotion, Fryman began relieving Bargo of her job duties and forcing her to work longer hours. Finally, on September 30, 2011, Fryman terminated Bargo, allegedly because of poor performance and decreased sales.
Bargo asserts that Fryman’s explanation for her termination was “merely a mask to cover-up the pattern of age discrimination throughout Goodwill’s Cumberland division.” (Doc. # 1 at ¶ 20). Bargo goes on to allege that Fryman’s explanations were inconsistent with the objective evidence: her performance evaluations were consistently positive and, although sales had dropped from October 2010 through June 2011, sales receipts reflected that sales had increased in July, August and September 2011.
B. Plaintiff Vicki Tuggle
Plaintiff Tuggle was employed by Goodwill as a Store Manager since September 6, 1994. At all times relevant to this suit, Tuggle was in her mid-to-late sixties. In early 2011, Defendant Vicky Hunter began reprimanding Tuggle about customer com
At some time in early 2011, Goodwill solicited applications for a Donated Goods Manager. Tuggle applied for the positions, as did Mr. David Schultz, a younger male who had been with the company for less than a year. Schultz was ultimately given the position despite Goodwill’s longstanding history of promoting veteran employees, particularly those with Store Manager experience. As the Donated Goods Manager, Schultz began reprimanding Tuggle about being rude to customers and taking long lunch breaks. Tuggle contends these allegations were false.
Between March 2011 and July 27, 2011, Tuggle went on medical leave due to an unspecified medical condition. When Tuggle returned from medical leave, Schultz demoted her from the Store Manager position and took away many of her job responsibilities. Schultz also scheduled Tuggle for less favorable shifts working in the “back of the store,” (Id. at ¶ 26) which required her to be on her feet, lift, and do manual labor above her head. These new job tasks were in violation of Tuggle’s medical restrictions, she claims.
Because she was unable to perform her new job tasks, Tuggle again took medical leave from August 16, 2011 through September 22, 2011. During her leave, she made complaints to Defendant Roland Blahnik, President of Goodwill. Tuggle asserts that Blahnik “ignored her complaints, told her that he was ‘suspending’ her complaints, and instructed her to fire workers with disabilities.” (Id. at ¶ 28). Five days after returning from medical leave Tuggle was terminated from Goodwill without any explanation or justification.
II. ANALYSIS
A. Standard of Review
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
B. Plaintiff Bar go has failed to plead plausible age discrimination claims under the Age Discrimination in Employment Act and Kentucky Civil Rights Act
Plaintiff Bargo alleges that she was terminated by Goodwill because of her age, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, and Kentucky Civil Rights Act (“KCRA”), K.R.S. § 344.040a).
Defendants assert that Plaintiff Bargo’s age discrimination claims must be dismissed because she has faded to plead facts to support a prima facie case. Specifically, Defendants argue that Plaintiff Bargo has failed to plead any facts to support the fourth element — that she was replaced by a person significantly younger than her. Grosjean v. First Energy Corp.,
In Swierkiewicz v. Sorema,
The Sixth Circuit has recognized that Swierkiewicz was unaltered by the Supreme Court’s decisions in Twombly and Iqbal. Keys v. Humana, Inc.,
Even under Rule 8(a), Plaintiff Bargo’s Complaint fails to contain a short and plain statement showing she is entitled to relief. Plaintiff does allege that she is over forty (40) years of age — demonstrating that she is a member of the protected class — and alleges that none of the reasons offered for her termination were valid. However, she offers no factual allegations to show that she was terminated based on age. Her only allegation in this regard is that “the basis given for [her] termination was pre-textual and merely a mask to cover-up the pattern of age discrimination throughout Goodwill’s Cumberland division.” (Doc. # 1 at ¶ 20). Without providing any factual allegations about a pattern of age discrimination, this allegation is nothing but a legal conclusion that will not be accepted as true. Iqbal,
C. Plaintiffs’ Title VII gender discrimination claims fail as a matter of law
Defendants move to dismiss Plaintiffs’ Title VII gender discrimination claims because they failed to exhaust their administrative remedies before pursuing their claims. Plaintiffs did not respond to this argument, but instead contend that they have pled sufficient facts to support their claim. For the following reasons, the Court agrees that Plaintiffs have failed to exhaust their administrative remedies, foreclosing the need to address the merits of Plaintiffs’ factual allegations.
“A person seeking to bring a discrimination claim under Title VII in federal court must first exhaust her administrative remedies” by filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Randolph v. Ohio Dept. of Youth Services,
Here, Plaintiffs Bargo and Tuggle each filed charges of discrimination with the EEOC (Docs.# 3-3, 3-4, respectively), however they both only checked the box for discrimination based on age; they did not check the box for discrimination based on sex. This failure alone is not fatal, though. In the Sixth Circuit, courts are required to look to the factual allegations in the charge to determine whether it would give the EEOC notice of another uncharged claim. Dixon,
Plaintiffs’ failures are similar to those addressed in Oliver v. St. Luke’s Dialysis, LLC, No. 1:10-cv-2667,
Like the Oliver court held, Plaintiffs have failed to exhaust their administrative remedies as to their Title VII gender discrimination claims. While they filed charges with the EEOC, their charges did not give any indication that they were complaining of gender discrimination. As a result, their gender discrimination claims must be dismissed.
D. Plaintiff Bargo has failed to state a plausible gender discrimination claim under the Kentucky Civil Rights Act
In Count IV of her Complaint, Plaintiff Bargo alleges that she was wrongfully terminated based on her gender in ■violation of the KCRA, K.R.S. § 344.040. Because K.R.S. § 344.040 mirrors Title VII of the Civil Rights Act of 1964, discrimination claims under the KCRA are to be evaluated using the federal standard of gender discrimination. Smith v. Leggett Wire Co.,
The substance of Count VI offers nothing but legal conclusions and a recital of the elements of a gender discrimination claim. It states:
The Defendant, Goodwill, has discharged these Plaintiffs and otherwise discriminated against these Plaintiffs, with respect to compensation, terms, conditions, or privileges of employment because of their sex and their age, as both of them are over forty (40), in violation of K.R.S. § 344.040. As such, Goodwill has committed unlawful discrimination practices against these Plaintiffs and the Plaintiffs are entitled to recover damages under State law.
(Doc. # 1 at ¶ 38). This is nothing more than “an unadorned, the-defendant-unlawfully harmed-me accusation,” Iqbal,
While these conclusions are insufficient alone to satisfy Rule 8, they can be saved by the fact section of Bargo’s Complaint, so long as it offers facts to establish that Bargo was terminated because of her gender: Iqbal,
E. Plaintiffs have failed to plead plausible intentional infliction of emotional distress claims
In Count II of their Complaint, Plaintiffs allege intentional infliction of emotional distress (“IIED”) claims against each of the Individual Defendants. The Kentucky Supreme Court has adopted the Restatement (Second) of Torts definition of IIED, which states:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to others results from it, for such bodily harm.
Craft v. Rice,
(1) the wrongdoer’s conduct was intentional or reckless;
(2) the conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality;
(3) there must be a causal connection between the wrongdoer’s conduct and the emotional distress; and
(4) the distress suffered must be severe. Osborne v. Payne,
Defendants argue that Plaintiffs have not alleged sufficiently outrageous conduct to permit recovery.
Conduct is only actionable under the tort of IIED if it is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. at 789 (Ky.2004) (quoting Restatement (Second) of Torts § 46(a) cmt. d). It is the type of conduct that would lead an average member of the community to exclaim, “Outrageous!” when he hears the facts of the case. Id. “Mere insults, indignities, threats, annoyances, petty oppressions, [and] other trivialities” do not meet this standard. Id.
The alleged conduct in Plaintiffs’ Complaint falls far short of this standard. Bargo alleges that Defendant Fryman disliked her and did not keep it to herself, demoted her, forced her to work longer weeks, and terminated her. Similarly, Tuggle alleges that Defendant Hunter reprimanded her for alleged customer complaints and because she took excessively-long lunch breaks; Goodwill promoted a younger, less-qualified male to the Donated Goods Manager position rather than her; she lost many job responsibilities when she returned from medical leave and was demoted; she was asked to perform duties beyond her medical limitations; and she was terminated. None of these allegations, even considered collectively, would cause the average member of the community to exclaim, “Outrageous!”
The conduct also falls far short of those cases in which Kentucky courts have found that the defendant’s conduct was actionable under IIED. As the Stringer Court summarized, Kentucky courts have found the following conduct sufficient to warrant recovery:
Where the defendants: (1) harassed the plaintiff by keeping her under surveillance at work and home, telling her over the CB radio that he would put her husband in jail and driving so as to force her vehicle into an opposing lane of traffic; (2) intentionally failed to warn the plaintiff for a period of five months that defendant’s building, in which plaintiff was engaged in the removal of pipes and ducts, contained asbestos; (3) engaged in a plan of attempted fraud, deceit, slander, and interference with contractual rights, all carefully orchestrated in an attempt to bring [plaintiff] to his knees; (4) committed same-sex sexual harassment in the form of frequent incidents of lewd name calling coupled with multiple unsolicited and unwanted requests for homosexual sex; (5) was a Catholic priest who used his relationship [as marriage counselor for] the [plaintiff] husband and the wife to obtain a sexual affair with the wife; (6) agreed to care for plaintiffs long-time companion-animals, two registered Appaloosa horses, and then immediately sold them for slaughter; and (7) subjected plaintiff to nearly daily racial indignities for approximately seven years.
Stringer,
Despite their failure to plead outrageous conduct, Plaintiffs ask the Court to permit
Plaintiffs’ IIED claims fail for a second reason — they have failed to allege severe emotional distress. “[T]o meet the standard of severe emotional distress the injured party must suffer distress that is ‘substantially more than mere sorrow.’ ” Benningfield v. Pettit Envtl., Inc.,
F. Plaintiffs’ defamation and false light claims are barred by the one-year statute of limitations
Plaintiffs bring false light invasion of privacy and defamation claims in Counts III and V of their Complaint, respectively. Defendants move to dismiss these claims because they are barred by the one-year statute of limitations set forth in K.R.S. § 413.140(l)(d). Plaintiffs do not respond to Defendants’ assertion that their defamation claim is time barred; however, Plaintiffs argue that their false light claims are not time barred because they were timely filed within the five-year statute of limitations. Because each claim is subject to a one-year statute of limitations, the Court finds that the claims are time barred and are, therefore, dismissed.
Under, K.R.S. § 418.140(l)(d), libel and slander actions must be commenced within one year after the cause of action accrued. A libel or slander action is said to accrue on the date of publication or injury. Caslin v. Gen. Elec. Co.,
While Plaintiffs acknowledge that many courts have applied the one-year statute of limitations to false light claims, Plaintiffs ask the Court to follow the Kentucky Supreme Court’s decision in Craft v. Rice,
In Branham v. Micro Computer Analysts, the Sixth Circuit considered “whether the [Plaintiffs’] claim for invasion of privacy against [the Defendants] is subject to a one-year or five-year statute of limita
Here, like in Branham, Plaintiffs’ false light claims “spring from” their defamation claims. In other words, Plaintiffs seek damages for their loss of reputation, which was caused by allegedly false statements. This is the essence of their defamation claims as well. As a result, the one-year statute of limitations applies to Plaintiffs’ false light and defamation claims.
The dispositive issue, then, is when did Plaintiffs’ claims accrue. Although Plaintiffs do not specifically identify when each allegedly defamatory comment was made, it is apparent that each of the comments were made while Defendants were employed at Goodwill.
G. Plaintiffs’ vicarious liability and punitive damages claims fail as a matter of law
In Count VI, Plaintiffs allege that Goodwill is vicariously liable for the tortious conduct of its employees. Under Kentucky law, an employer is vicariously liable for the tortious conduct of its employees, so long as the conduct occurred within the course and scope of the employee’s employment. Booker v. GTE.net LLC,
In Count VII, Plaintiffs allege that Defendants are liable for punitive damages. Based on the Court’s ruling herein, only two claims will proceed to discovery: Plaintiff Tuggle’s ADEA and KCRA claims. Punitive damages are not available under either statute. Looney v. Commercial Union Assur. Co.,
III. CONCLUSION
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1) Defendants’ Motion to Dismiss (Doc. # 3) is hereby GRANTED;
(2) All of Plaintiff Bargo’s claims (Doc. #1) are hereby DISMISSED WITH PREJUDICE; and
(3) Plaintiff Tuggle’s Title VII gender discrimination claim in Count I, as well as her claims in Count II, Count III, Count V, Count VI, and Count VII (Doc. # 1) are hereby DISMISSED WITH PREJUDICE.
Notes
. In their Complaint, Plaintiffs allege that Defendant Goodwill discriminated against them based on age in violation of Title VII of the Civil Rights Act of 1964. However, Title VII does not prohibit age discrimination. Briggs v. Potter,
. While the Court has dismissed Plaintiff Bar-go's Title VII gender discrimination claim because she failed to exhaust her administrative remedies, the Court will also rely on this analysis as an alternative justification for dismissing her Title VII claim.
. Defendants also assert that Plaintiffs' IIED claims are preempted and subsumed by their KCRA claims because each claim essentially seeks damages for the same harm — emotional harm. Defendants cite to numerous decisions from both state and federal courts in support of their position. See McDonald's Corp. v. Ogborn,
While the cases cited by Defendants appear controlling on their face, Defendants argument has been rejected by the Kentucky Court of Appeals in Wilson v. Lowe’s Home Center, 75 S.W.3d 229 (Ky.App.2001). There, the plaintiff brought an IIED and discrimination claim against her employer, as well as an IIED claim against three individual defendants. Id. at 239. The Court of Appeals held that the IIED claim against the employer was preempted and subsumed by the discrimination claim, but that the IIED claims against the three individuals were not subsumed. Id. As it relates to the employer, the court recognized that both claims sought damages for emotional distress, and held that the statutory right of action controlled over the common law action. Id. However, the court recognized that plaintiffs may bring IIED claims “against the offending individuals against whom no civil rights claim could have been filed.” Id. Pursuant to Wilson, Plaintiffs’ IIED claims, brought solely against the individual defendants, are not preempted by their KCRA claims.
. In their Motion to Dismiss, Defendants acknowledge that Plaintiffs did not specifically allege when each defamatory statement was made. However, based on their review of the Complaint, Defendants asserted that each statement was made before the Plaintiffs were terminated from Goodwill. Plaintiffs did not challenge this assertion in their response, apparently conceding that they are only challenging statements made during their employment.
Furthermore, upon the Court’s review of the Complaint, Defendants’ assertion appears accurate. Plaintiff Bargo complains that Defendant Fryman "had an immediate dislike for [her]” upon being promoted and "did not keep it to herself.” (Doc. #1 at 11 18). Likewise, Plaintiff Tuggle asserts that "[b]eginning in March 2011, [she] ... had several false allegations levied against her.” (Id. at ¶ 22). Plaintiffs make no allegations about statements made after their termination. As such, the Court concludes that Plaintiffs’ Complaint only challenges statements made during their employment.