Commonwealth Journal

May 10, 2013

Settlement talks fail; Cruey case to be tried

Lawsuit alleges retaliation by city

by Heather Tomlinson
Commonwealth Journal

Somerset —

A lawsuit filed against the City of Somerset last year by an employee who claimed she was retaliated against for accusing a fellow employee of assault appears to be headed toward a trial date still after a settlement conference resulted in no compromise between the parties. 
Electronic documents accessed by the Commonwealth Journal detailing a lawsuit brought against the City of Somerset in U.S. District Court in London by SomerSplash Waterpark employee Brenda Cruey state that a conference, held on April 22, 2013, did not result in a settlement between Cruey and the city. According to an order entered by U.S. Magistrate Judge Hanly A. Ingram, both parties requested the settlement conference. 
The case, which began more than a year ago, will most likely go to trial in August of 2013. 
Cruey originally filed a criminal complaint in May 2011 against fellow employee Rhon Blevins following an incident during which Blevins allegedly screamed obscenities at Cruey and bumped his chest into hers while on the job at the water park. Cruey was laid off from her job temporarily following the incident, but was then told to return to work with fewer hours and altered responsibilities. 
Cruey sued the city, Somerset Mayor Eddie Girdler, and Blevins, claiming that her layoff was in retaliation for the criminal complaint she filed. Cruey’s initial lawsuit claims Girdler stated that the reason she was laid off was “because she filed the criminal complaint against Blevins.” 
In August 2012 U.S. District Judge Gregory F. Van Tatenhove granted the city’s plea that several counts of Cruey’s suit — that the city retaliated against a participant in a legal process, that the termi-nation of her employment violated Kentucky’s “Whistleblower Statute,” and that the defendants’ conduct was an intentional infliction of emotional distress —  be dismissed.
In his decision to dismiss Cruey’s whistleblower claims, Van Taten-hove said the Whistleblower Act only prohibits certain employers from discouraging individuals from reporting actual or suspected violations of law to authorities. Under state law, “employer” is defined as “the Commonwealth of Kentucky or any of its political subdivisions” and “any person authorized to act on behalf of the Commonwealth, or any of its political subdivisions. The judge said the state Supreme Court’s ruling prevents him from allowing Cruey’s whistleblower claim to continue.
Lastly, Van Tatenhove moved to dismiss Cruey’s “claim of outrage” against the city, which would be considered an intentional infliction of emotional distress upon Cruey. 
Van Tatenhove stipulated that Kentucky case law reveals that the act of terminating an employee does not rise to the level of “extreme and outrageous conduct” and that her request for compensation for “embarrassment and humiliation” does not meet the standard for severe emotional distress under law. 
Van Tatenhove’s decision to dismiss three counts of Cruey’s complaint came nearly a year after he ordered that Cruey’s claims against Blevins be severed from the claims filed against the city and  Girdler. 
Van Tatenhove, in his order, stated that the claims against Blevins — that he assaulted plaintiff Cruey during an “uncontrolled rage” on May 23, 2011 at the park — do not share common ground with Cruey’s claims against Girdler and the city of retaliation. 
Cruey claims she was assaulted by Blevins during the May 23 incident. The lawsuit claims Blevins “chest and head-butted” Cruey. An earlier statement from Cruey made available to Somerset’s city council members states that Blevins “jumped in my face ... touching his nose to my nose and bumped his chest into mine.”
A menacing charge originally filed against Blevins was dismissed on the condition that Blevins stay at least 300 feet away from Cruey.
The third count of Cruey’s lawsuit, that her civil rights were violated by Girdler and the city “by causing her employment to be diminished by taking away hours and authority over others,” remains active. 
The city, in its response to Cruey’s lawsuit, has denied all wrongdoing.