Author: Melanie Navamanikkam, Associate Member, University of Cincinnati Law Review
For the past twenty years, Kentucky jurisprudence has held that a plaintiff bringing an action under the Kentucky Civil Rights Act had to definitively choose between bringing their claim through a court of law or through an administrative proceeding. Once a plaintiff chose one of the forums, their claim was effectively precluded from the other forum. For employers defending against employment discrimination suits, this interpretation meant that the employer had to prepare to defend the case in only one forum. However, the recent Supreme Court of Kentucky decision in Owen has changed this, and has resulted in, what the Court itself agrees, is a “procedural mess.”[1]
The crux of the confusion stems from the fact that there are two versions of the statute which serve as procedural instructions for civil rights litigants.[2] One version is a pre-amended version from 1984,[3] and the other is the current amended version.[4] The pre-amended version of the statute instructed that a court or a human rights commission was not to take jurisdiction over a claim that was already pending in the other forum.[5] Furthermore, once a final determination was made by the other body, any further actions or proceedings were prohibited.[6] The current version, last amended in 1996, uses more restrictive language, instructing that while neither forum may take jurisdiction over a claim pending before the other forum, a final determination precludes only any other administrative action.[7] This shift in the language of the provision, from using general terms to more restrictive terms, has resulted in the confusing decision made in Owen.
The Supreme Court of Kentucky is helpless in its determination in Owen. Although the Court has serious concerns about what its decision will result in, the Court correctly surmises that it cannot ignore the fact that the language of the amendment precludes further administrative actions only.[8] Even though the Court’s previous interpretation had efficiently ensured a preclusive effect to all final determinations resolved under this statute,[9] the mere fact that the previous interpretation resulted in a more manageable process does not displace laws made by the legislature. The role of a Court is to interpret and enforce law, not to make them. Ironically, by taking the correct stance on refusing to construe the text of the statute to conform to its previous interpretation, the Court committed itself to a determination that would create more problems.
Vaezkoroni ‘Election-of-Remedies’ Rule
In Vaezkoroni, the Court interpreted the pre-amended statute as a procedural instruction is an election-of-remedies. [10] The Court held that the statute offered prospective civil-rights plaintiffs redress for workplace discrimination either through a human rights commission or the civil courts—not both.[11] The Court was clear that once a plaintiff chose an avenue of relief and filed their claim through that avenue, the other avenue was no longer available to the plaintiff.[12]
Once a plaintiff filed a claim, and it was pending in one of the two avenues, the other forum could no longer exercise jurisdiction over the plaintiff’s claim. When the forum the plaintiff chose to file a claim in rendered its final and appealable decision, the statute again barred the plaintiff from bringing that claim in another proceeding. This effectively limited the plaintiff to bringing that claim only once, and in only one of the avenues of relief.
The decision in Vaezkoroni was the first and only time that the Kentucky Supreme Court itself would take this position.[13] Even after the General Assembly amended the statute, the Court was not asked to review the statute until its decision in Owens. However, the Kentucky Court of Appeals followed Vaezkoroni several times, even subsequent to the 1996 amendment.[14] Due to this lapse in review of the amendment, the past twenty years of jurisprudence reflected an interpretation of the statute that was no longer current.
Background on Owen
Janet Owen was a former employee at the University of Kentucky’s Chandler Medical Center (UK).[15] She was terminated from her position as a nursing-care technician in 2009, and filed a complaint with the Kentucky Commission on Human Rights (KCHR) alleging that she was fired due to her recent health issues and disability.[16] The case was dismissed, reopened on appeal, and then dismissed once again with instructions that Ms. Owen could sue under federal law in either state or federal court.[17] However, Ms. Owen instead chose to file the original action in circuit court under KRS § 344, the Kentucky Civil Rights Act.[18] UK moved for summary judgement, relying on the Vaezkoroni, that interpreted KRS § 344.270 as an “election-of- remedies” provision.[19] UK argued that since Ms. Owen had already elected to pursue her claim through an administrative process, she was precluded from bringing the action in the circuit court.[20] The trial court and the Kentucky Court of Appeals both agreed with UK and granted UK’s motion for summary judgement.[21] The Kentucky Supreme Court granted discretionary review to determine whether the 1996 amendment to the statute substantively alters their understanding of the statute as an election-of-remedies provision.
The Supreme Court of Kentucky’s Lamenting Decision in Owen
In Owens, the Court looks to the plain language of the amended statute and holds that the current statute does not require a plaintiff to elect a procedural avenue to pursue a claim.[22] The Court’s reasoning is that the 1996 amendment alters seemingly open-ended terms of the statute into more specific terms.[23] The amended language only excludes a claim from receiving “any other administrative action.”[24] The amended language is not open-ended like the pre-amended version, and specifically excludes administrative proceedings only.[25] The Court surmises that while in the pre-amendment version of the statute, the word “action” could encompass any legal action filed in either a judicial or administrate forum, the 1996 amendment limits its meaning to include “administrative actions” alone.[26] The Court reiterates that in statutory interpretation, the plain text of the statute is supreme, and the language of the amended version of the statute was clear to exclude only subsequent administrative actions.[27] Therefore, the statute must be taken for face value and “there is nothing remaining in the statute to bar claims filed in circuit court, despite final and appealable orders dismissing the exact same claim filed in the administrative agency.”[28] As such, the Court holds that its prior position from Vaezkoroni, that the statute is an election-of-remedies provision, is inapplicable to the amended version of the statute.[29] The Court’s decision, although not ideal, emphasizes the judicial body’s role in enforcement of the rules, and not rule making. The Court’s reluctance to make such a ruling, which will inevitably result in procedural chaos, is circumvented only by its sound judgment that the legislature makes the law and the Court can only enforce it.[30]
The “New” Procedural Standard for Kentucky Civil Rights Act:
Based on Owen, KRS § 340.270 is no longer an election-of-remedies provision. The 1996 amendment altered general terms that could have referred to both administrative and court of law claims filed through a commission or through a court of law, and made them applicable only to administrative actions. By altering previously broad terms that referred to both administrative proceedings and judicial proceedings into terms that only refer to administrative proceedings, the amendment altered the statute to only bar civil-rights claims that received a final and appealable orders from a court of law from seeking redress in an administrative forum. The statute no longer precludes a plaintiff who filed their claim in an administrative proceeding from “taking a second bite of the cherry” and filling their claim again in a court of law if they do not prevail in an administrative proceeding.[31] Plaintiffs who filed in a court of law first are still precluded from bringing their claim in the other forum.
What this Means for Employment Law
The Court’s ruling in Owen drastically changes the landscape of employment discrimination litigation for Kentucky employees and employers. Now a plaintiff may take “two bites of the cherry,” so to speak. If a Kentucky plaintiff files their employment discrimination claim in an administrative proceeding, and does not succeed, they can then file the same action in a judicial proceeding. The Kentucky Supreme Court recognizes that this will lead to plaintiffs first choosing to take advantage of the “more deferential standard” that is afforded to plaintiffs in administrative proceedings, and if they fail, file the same claim in a judicial proceeding as well.[32] This will result in employers having to defend themselves several times on the same claim, even if they have already successfully defended themselves in an administrative proceeding. Such a procedural policy does not reflect the interest of balanced fairness and justice. An employer should not be forced to expend time and resources on a claim that was already found to be without merit due to a procedural loophole afforded by a hastily written statute.
The Court also suggests that its decision in Owen could result in double-recovery.[33] Although the Court does not analyze this further, double recovery could potentially occur if an employee brought a claim in an administrative proceeding and won, and then brought the same claim in a judicial proceeding and won in that forum as well. Nothing in the statute prohibits a plaintiff from filing a claim that has already succeeded in an administrative proceeding and then filing again in a judicial proceeding.[34] Although the plaintiff may be barred by issue or claim preclusion doctrines, the amended statute itself does not bar such procedural actions. Leaving open an avenue for double recovery places an unfair burden on employers who could face paying recovery on the same cause of action twice over. Such a procedural loophole contradicts the cornerstone of fair treatment under law.
Conclusion
The most unsettling aspect of the statute is that it allows for a plaintiff who filed his claim in administrative proceeding first to have privileges that are not afforded to plaintiffs who file in a court of law first.[35] Although this could simply mean that access to courts should always remain open to plaintiffs, it still sets up an unfair and lopsided standard. The Court was in no position to insert its own reading of the statute, nor did it have the authority to displace the General Assembly’s judgement for its own. Rather, the decision in Owen serves as an example of how a hastily written amendment could lead to unbalanced legal outcomes. Although the Court took the correct trajectory by refusing to knead the text of the amendment to preserve its rule from Vaezkoroni, the result of the Court’s deference to the plain text of the statute is a murky procedural standard that greatly reduces the manageability and efficiency of the processing of civil rights claims. As the Court suggested, the easy fix solution to this mess is for the General Assembly to recognize that the 1996 amendment has created a lopsided procedural system and either amend or clarify the rationale behind the 1996 amended to the statute. Until then, the statute, and the Court’s forced decision in Owen, will result in procedural inefficiencies that did not exist prior to the amendment.
[1] Owen v. Univ. of Ky., 486 S.W.3d 266, 272-73 (Ky. 2016).
[2] See KRS 240.370 (West 2016).
[3] The provisions of KRS 13B.140 notwithstanding, commission shall not take jurisdiction over any claim of an unlawful practice under this chapter while a claim of the same person seeking relief for the same grievance under KRS 344.450 is pending. A state court shall not take jurisdiction over any claim of an unlawful practice under this chapter while a claim of the same person seeking relief for the same grievance is pending before the commission. A final determination by a state court or the commission of a claim alleging unlawful practice under KRS 344.450 shall exclude any other action or proceeding brought by the same person based on the same grievance.
[4] See KRS 240.370 (1984).
[5] Id.
[6] See KRS 240.370 (1984). See also Vaezkoroni v. Domino’s Pizza Inc,. 914 S.W.2d 341 (Ky. 1995).
[7] See KRS 240.370 (West 2016).
[8] Owen v. Univ. of Ky., 486 S.W.3d 266, 272-273 (Ky. 2016).
[9] Id. at 272.
[10] See Vaezkoroni v. Domino’s Pizza Inc,. 914 S.W.2d 341 (Ky. 1995). See Owen v. Univ. of Ky., 486 S.W.3d 272 (Ky. 2016). (“The election-of-remedies doctrine is a common law rule deeply rooted in Kentucky law. It primarily applies when a party has two inconsistent forms of relief which are available for a single injury. The act of seeking one precludes the other. [U]nder our law, we traditionally invoke the doctrine not only when remedies themselves are inconstant, but also when remedies are offered through seemingly contradictory methods.”).
[11] Id. at 342
[12] Id.
[13] Owen v. Univ. of Ky., 486 S.W.3d 266, 273 (Ky. 2016).
[14] Id.
[15] Id. at 267.
[16] Id. at 268.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id. at 272.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id. at 273.
[31] Id. at 270.
[32] Id. at 271
[33] Id.
[34] See KRS 240.370 (West 2016). As the statute states, once a final decision has been rendered, only other administrative action is excluded.
[35] See Id. at 272. (“And even more baffling, although the statute as written allows litigants whose claims fail at the administrative level a fresh start in trial court, it expressly precludes the opposite.).
