Simmons v. Beshear

DANA SIMMONS PLAINTIFF v. ANDREW BESHEAR, ET AL. DEFENDANTS

Civil Action No. 3:21-cv-052 (WOB)

United States District Court, E.D. Kentucky, Central Division, Frankfort

May 5, 2022

MEMORANDUM OPINION ORDER

WILLIAM O. BERTELSMAN UNITED STATES DISTRICT JUDGE

This is an action filed by Dana Simmons, a former employee of the Commonwealth, against Governor Andy Beshear and other state officials for violations of her Fourteenth Amendment substantive and procedural due process rights stemming from a policy that all executive branch employees wear a mask while at work. Currently pending before the Court are Defendants' motion to dismiss, (Doc. 38), Plaintiff's motion for jury trial, (Doc. 35), Defendants' motion to strike, (Doc. 37), Plaintiff's motion to strike, (Doc 41), and Plaintiff's motion to vacate, (Doc. 43). After careful consideration, the Court concludes that oral argument is unnecessary, and it issues the following Memorandum Opinion and Order.

FACTUAL AND PROCEDURAL BACKGROUND

On March 6, 2020, Governor Andy Beshear declared a state of emergency in the Commonwealth of Kentucky in response to the COVID-19 pandemic. (Doc. 33-1 at 1-3). Throughout the course of the pandemic, the Governor issued various executive orders meant to curb the spread of COVID-19. (See Doc. 33 at ¶ 14). These executive orders, among other things mandated the closing of nonessential business and schools and the wearing of face masks in public areas. (Id.). Pursuant to the executive orders, the Governor's designees also issued orders that set minimum requirements for businesses and other community entities to help the citizens of Kentucky stay safe for the duration of the pandemic. (Id.).

On May 11, 2020, the Secretary for Health and Family Services, Eric Friedlander, signed an order establishing the “Healthy at Work” program, which set the minimum requirements for the reopening of businesses. (Doc. 33-1 at 5-11). The Healthy at Work program mandated that “businesses organizations, and entities must ensure, to the greatest extent practicable, that their employees, volunteers, and contractors wear a cloth mask.” (Id. at 7).

Throughout 2020, there were various challenges to the Governor's executive orders. However, in November of 2020, the Kentucky Supreme Court held that the Governor was properly exercising the power that had been delegated to him by the Kentucky General Assembly under KRS Chapter 39A. Beshear v. Acree, 615 S.W.3d 780, 813 (Ky. 2020). The Court cautioned, however, that the General Assembly had the authority to revoke that power if it deemed fit. Id.

In January 2021, during its Regular Session, the General Assembly responded to Acree by passing Senate Bill 1 and House Joint Resolution 77. Senate Bill 1 amended KRS Chapter 39A and restricted the Governor's emergency powers. First, it prohibited the Governor from declaring a state of emergency based “upon the same or substantially similar facts and circumstances as the original declaration or implementation without the prior approval of the General Assembly.” 2021 Ky. Acts ch. 6 (SB 1) § 2(3). Second, it prohibited any executive order, administrative regulation, or other directive that restricted in-person activities from lasting longer than thirty days unless the General Assembly passed an extension. Id. at § 2(2). The General Assembly also passed House Joint Resolution 77, which declared an end to the state of emergency. 2021 Ky. Acts ch. 168 (HJR 77). Both House Joint Resolution 77 and Senate Bill 1 were enacted over the Governor's veto.

The General Assembly's restriction of the Governor's emergency powers triggered a new round of challenges in Kentucky state courts. The Franklin County Circuit Court issued a statewide temporary restraining order, finding that the laws likely violated the Kentucky Constitution. Beshear v. Osborne, et al., No. 21-CI-89 (Franklin Cty. Apr. 7, 2021). The Boone County Circuit Court, on the other hand, upheld the laws finding that they were a valid exercise of the General Assembly's delegation powers. Ridgeway, et al. v. Beshear, No. 20-CI-678, slip op. (Boone Cty. June 15, 2021). Eventually, the issue made its way to the Kentucky Supreme Court, which ruled on August 21, 2021 that the laws were constitutional and therefore, the Governor's powers pursuant to KRS Chapter 39A were appropriately limited by the General Assembly. Cameron v. Beshear, 628 S.W.3d 61, 78 (Ky. 2021).

To solidify this holding, on September 7, 2021, the General Assembly passed Joint Resolution 1, which provided that “all SARS-COV-2-related orders issued by the Governor and all executive actions and administrative orders . . . are of no further force or effect . . . .” 2021 Ky. Act ch. 1 (HJR 1). In the recitals, the General Assembly highlighted that this was being enacted to clarify the Governor's emergency powers. Id. The Resolution specifically exempted Personnel Cabinet Memorandum No. 21-14, which aimed to incentivize executive branch employees to receive their COVID-19 vaccine. Id. at § 3. The Memorandum referenced the Commonwealth's continued implementation of the “Healthy at Work” initiative to “ensur[e] the health and safety of [] state employees.” Personnel Cabinet Memorandum No. 21-14 (Aug. 5, 2021).

Dana Simmons (“Plaintiff”) was an executive branch classified employee with the Commonwealth of Kentucky Public Protection Cabinet, Office of Legal Services where she served as a Staff Attorney II. (Doc. 33 at ¶ 2). She began work on September 16, 2020 and worked remotely five days a week because of the COVID-19 pandemic. (Id. at ¶ 29). In July of 2021, her position moved to a hybrid work model, where Plaintiff worked in-person some days and remotely on other days. (Id.). At the time she moved to a hybrid work model, face masks were not required in the office.

On July 29, 2021, Defendant and Personnel Secretary, Gerina Weathers, disseminated to all executive branch employees a face covering policy. (Doc. 33-1 at 54-55). The policy required that individuals in executive branch buildings wear a face covering while in common areas. (Id. at 55). Employees were free to remove their face coverings while at their workstations. (Id.). It is unclear from the record whether Plaintiff was initially compliant with the policy or if she was always noncompliant. But regardless, at some point during the summer or early fall of 2021, Plaintiff decided not to comply with the face covering policy.

Plaintiff's noncompliance prompted the Deputy Commissioner to approach her on September 21, 2021 and remind her that she needed to wear a mask while in common areas. (Doc. 33 at ¶ 31). Following this interaction, Plaintiff emailed her direct supervisor and explained that she believed it was her prerogative to choose to wear a mask or not. (Id. at ¶ 32). Her supervisor responded to her emphasizing that he was “thankful for the good work” Plaintiff did and explained that the policy was permissible despite the Kentucky Supreme Court's decision in Cameron v. Beshear because the policy only applied to executive branch employees. (Doc. 331 at 73-74). Plaintiff continued to be noncompliant with the face covering policy.

A few days later, Plaintiff had a meeting with the General Counsel of the Public Protection Cabinet, Ben Long. (Doc. 33 at ¶ 33). At the meeting, Mr. Long provided Plaintiff with a copy of the face covering policy and an appeals form, and he told her that she would not be permitted to work on days she was scheduled to work in the office if she chose not to wear a face covering. (Id.). A few hours after the meeting, Plaintiff received an email from Mr. Long, explaining for the first time that she would not be permitted to use leave time on the days she was scheduled to work in the office. (Id. at ¶ 34). The email further stated that “Any absence on those days due to non-compliance [sic] with cabinet policy may result in corrective or disciplinary action . . . .” (Id.).

Plaintiff was scheduled to work in the office on September 29, 2021. (Id. at ¶ 35). She arrived at her desk without a face covering and logged on to her computer to see an email from Mr. Long that was sent the night before, instructing her not to come to work without a face covering. (Id.). Plaintiff replied that she was already in the building and would not be wearing a face covering. (Id.). Mr. Long responded and instructed her to leave, which she did. (Id.). Plaintiff received a written reprimand the next day from Mr. Raley, the Executive Director of the Office of Administrative Services. (Id. at ¶ 36).

Plaintiff again showed up for in-person work on October 1, 2021. (Id. at ¶ 37). She waited in the lobby and emailed Mr. Long that she was there to work but would not enter the building without permission. (Id.). Plaintiff did not receive a response and left the premises. Mr. Raley emailed her later in the day and said that she may only enter the building if she wore a face covering. (Id.). She did not work that day. (Id.).

On October 5, 2021, Plaintiff received an email from Mr. Raley suspending her without pay for the next three days for her refusal to comply with the policy. (Id. at ¶ 38). After her suspension, she continued with her telecommuting schedule and took approved vacation from October 13, 2021 until October 15, 2021. (Id. at ¶ 39). Plaintiff resumed remote work and was on leave without pay again on October 20, 2021. (Id.). On November 8, 2021, Plaintiff received an intent to dismiss letter. (Id. at ¶ 40). Her pretermination hearing was held on November 19, 2021 and her termination was effective December 16, 2021.^[1] (Doc. 48).

Plaintiff filed this lawsuit on October 22, 2021, alleging violations of her fundamental liberty interests. (Doc. 1). She requested a preliminary injunction, which...