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Himmelheber v. ev3, Inc. et al

Doc. 14

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIVIL ACTION NO. 3:07-CV-593-H

JANET DALE HIMMELHEBER V. ev3, Inc., MURRAY SALES, and DAVE COX MEMORANDUM OPINION AND ORDER

PLAINTIFF

DEFENDANTS

Plaintiff Janet Himmelheber filed suit against Defendants, ev3, Inc., Murray Sales, and Dave Cox, claiming that they violated the Kentucky Civil Rights Act ("KCRA") as well as various provisions of Chapter 337 of the Kentucky Revised Statutes. Defendant has filed a motion to dismiss Plaintiff's complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the Court will sustain the motion in part and deny it in part. I. Plaintiff is an Indiana citizen. Defendants Murray Sales and Dave Cox are citizens of Michigan and North Carolina, respectively, and during the relevant period occupied managerial and supervisory positions for Defendant ev3, a Delaware corporation headquartered in Minnesota. In October 2004, Plaintiff was hired as a Territory Sales Manager for ev3, a manufacturer of endovascular devices. Under her employment agreement, she allegedly was to receive sales commission on a monthly basis, as well as stock options. In April 2006, Plaintiff was allegedly placed on two different "performance improvement plans." Subsequently, her attorney informed Defendants that Plaintiff believed she was being

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discriminated against on the basis of her gender. In July 2006, Plaintiff's employment was terminated by ev3. She allegedly was replaced by a male employee, and she alleges that ev3 has withheld her sales commission for July 2006, as well as her final paycheck and the stock options to which she claims she is entitled. Plaintiff filed a four-count complaint in Jefferson Circuit Court in September 2007, alleging sex discrimination and retaliation in violation of Chapter 344 of the Kentucky Revised Statutes, as well as failure to pay wages and commissions in violation of Chapter 337 of the Kentucky Revised Statutes. Defendants removed to federal court and moved to dismiss Plaintiff's Complaint on the grounds that neither the KCRA nor Chapter 337 applies to the events alleged by Plaintiff. The motion requires this Court to construe the complaint in the light most favorable to Plaintiff, Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998), and to accept all the complaint's factual allegations as true. Id. The Court may not grant such a motion to dismiss based on disbelief of a complaint's factual allegations. Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). Rather, the Court must liberally construe the complaint in favor of the party opposing the motion, and "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, -- U.S. -- , 127 S.Ct. 1955, 1969 (2007). II. Plaintiff has divided her claim into four counts, three of which arise under provisions of the KCRA. The Court will first consider each of these KCRA claims. A.

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Plaintiff first alleges that she was discriminated against on the basis of her gender, in violation of Ky. Rev. Stat.

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