Judy G. Morris v. OLDHAM COUNTY FISCAL COURT ; JOHN W. BLACK, County Judge/Executive; BRENT LIKINS

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0032P (6th Cir.)
File Name: 00a0032p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J UDY G. M ORRIS,
Plaintiff-Appellant,
v.
OLDHAM C OUNTY FISCAL
C OURT ; J OHN W. BLACK,
County Judge/Executive;
BRENT LIKINS,
Defendants-Appellees.
;>

1
No. 98-6117
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 96-00128—Charles R. Simpson, III, Chief District
Judge.
Argued: August 10, 1999
Decided and Filed: January 20, 2000
Before: KRUPANSKY, BOGGS, and CLAY, Circuit
Judges.
_________________
COUNSEL
ARGUED: Kenneth S. Handmaker, MIDDLETON &
REUTLINGER, Louisville, Kentucky, for Appellant.

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2 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
R. Thaddeus Keal, LANDRUM & SHOUSE, Louisville,
Kentucky, Stuart E. Alexander, III, TILFORD, DOBBINS,
ALEXANDER, BUCKAWAY & BLACK, Louisville,
Kentucky, for Appellees. ON BRIEF: Kenneth S.
Handmaker, MIDDLETON & REUTLINGER, Louisville,
Kentucky, Kyle P. Williams, WILDER, LEWIS &
WILLIAMS, Jefferson, Indiana, for Appellant. R. Thaddeus
Keal, David Whalin, LANDRUM & SHOUSE, Louisville,
Kentucky, Stuart E. Alexander, III, TILFORD, DOBBINS,
ALEXANDER, BUCKAWAY & BLACK, Louisville,
Kentucky, for Appellees.
BOGGS, J., delivered the opinion of the court, in which
KRUPANSKY, J., joined. CLAY, J. (pp. 21-30), delivered
a separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Judy Morris appeals the district
court’s grant of summary judgment for defendants, who
include the Oldham County (KY) Fiscal Court and Brent
Likins, her former supervisor at the Oldham County Road
Department. Morris claims that she was subjected to sexual
harassment and retaliatory harassment by her supervisor, with
the assistance or acquiescence of the county officials . Morris
sued the defendants under Title VII, 42 U.S.C. § 1983, and
the Kentucky Civil Rights Act (“KCRA”). We hold that the
district court properly granted summary judgment on Morris’s
Title VII and KCRA sexual harassment claims, as well as all
her § 1983 claims. However, we reverse and remand the
district court’s grant of summary judgment on Morris’s Title
VII retaliation claims against the County and her KCRA
retaliation claims against the County and Likins.

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30 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
defense of qualified immunity.
that the majority improperly held that Plaintiff could not
proceed with her § 1983 claim against Likins and Black;
coupled with my belief that the majority misapplies the
standard for the tort of intentional infliction of emotional
distress under Kentucky law in concluding that Likins’
conduct does not meet the threshold level of outrageousness,
I respectfully dissent. Plaintiff should be allowed to proceed
with these claims along with her claim for retaliatory
harassment where genuine issues of material fact remain for
trial.
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
3
I
Plaintiff-appellant Judy Morris has been employed by the
Oldham County (KY) Road Department since 1984,
essentially providing clerical and secretarial duties to the
Department. In October 1994, defendant-appellee Brent
Likins was appointed the new County Road Engineer, and had
supervisory authority over plaintiff. According to Morris,
Likins frequently told jokes with sexual overtones, once
referred to plaintiff as “Hot Lips,” and several times made
comments about Morris’s state of dress.
Likins’s first evaluation of Morris’s work performance
occurred in November 1994; he gave Morris a rating of
“excellent.” In March 1995, Likins rated Morris’s
performance as “very good,” stating that she was a “very
efficient and courteous employee.” Upon receiving her
evaluation, Morris asked Likins, in front of another one of her
supervisors, Jim Lentz, why her rating had declined from
“excellent” to “very good.” According to Morris, Likins
responded by telling her
that I could come into his office and then after we were
finished he would mark me excellents [sic] and then we
would go from there. And I told him if that is what it
took, that he could take his paper and he could have the
job because I was not going to tolerate it.
Morris and Lentz both construed this remark as meaning that
if Morris performed sexual favors for Likins, Likins would
improve her evaluation rating.
Morris complained about these incidents to defendant-
appellee County Judge John Black. Black wrote a letter to
Likins concerning Likins’s alleged behavior, telling Likins
that he hoped the two would “work out any problems and
differences in which you have [sic].” After receiving this
letter, Likins allegedly began giving Morris the “cold
shoulder” and became overly critical of her work. After
further complaints by Morris, Black transferred Likins’s

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4 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
office location from the Road Department to the County
Courthouse, out of concern “about everyone’s working
environment.” Black also ordered Likins not to communicate
directly with Morris, and not to be around her without a third
person present.
Despite Black’s directive, Likins allegedly visited the Road
Department unaccompanied a total of fifteen times, and called
Morris on the telephone over thirty times. Morris believes
these calls were made solely for the purpose of harassing her.
Additionally, Likins allegedly drove to the Road Department
on several occasions, and simply sat in his truck outside the
Department building, looking in Morris’s window and
making faces at her. He also allegedly followed Morris home
from work one day, pulled his vehicle up beside her mailbox,
and gave her “the finger.” Morris also claims that Likins
destroyed the television Morris occasionally watched at the
Road Department, and threw roofing nails onto her home
driveway on several occasions. This behavior by Likins
allegedly caused plaintiff to start having anxiety attacks; she
left work on sick leave. Morris later briefly returned to work,
but left work again in May 1996. At the time the district
court rendered its decision on defendants’ motions for
summary judgment, the county was continuing to hold her job
open for her.
On February 14, 1996, Morris sued the County, Black, and
Likins, alleging (1) unlawful employment discrimination by
reason of sex (quid pro quo and hostile environment sexual
harassment) and retaliation, under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Civil
Rights Act of 1991, 42 U.S.C. § 1981A et seq., and the
Kentucky Civil Rights Act, KY . R EV . S TAT . 344.010 et seq.;
and (2) intentional infliction of emotional distress. On
September 9, 1997, Morris amended her complaint by further
alleging that defendants Black and Likins had denied Morris
her right to equal protection, in violation of 42 U.S.C. § 1983.
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
29
2Unlike Plaintiff’s claim for retaliation brought against Black under
the KCRA, because the law regarding sexual harassment was established
at the time Plaintiff brought her claim, Black was not entitled to the
unkind words and minor indignities,” inasmuch as the action
lies only for conduct which is truly “outrageous and
intolerable,” clearly Plaintiff has presented sufficient evidence
to create an issue of fact as to whether this Likins’ conduct
rises to the level of “outrageousness.” See Kroger Co. v.
Willgruber, 920 S.W.2d 61, 65 (Ky. 1996).
In Willgruber, the plaintiff filed a claim for intentional
infliction of emotional distress against his former employer in
relation to the plaintiff’s termination. 920 S.W.2d at 62-63.
The Kentucky Supreme Court found that “the jury had a right
to conclude that [the defendant’s actions constituted] a plan
of attempted fraud, deceit, slander, and interference with
contractual rights, all carefully orchestrated in an attempt to
bring Willgruber to his knees. Conduct such as this
constitutes the very essence of the tort of outrage.” Id. at 67.
Likewise, in the case at hand, Likins’ actions -- such as
deliberately harassing Plaintiff so as to interfere with her job
performance, destroying property which Plaintiff used on the
job, making an obscene gesture at Plaintiff, and throwing
roofing nails on her home driveway -- could be construed as
intentionally creating an environment so intolerable that
Plaintiff could no longer continue her employment out of
physical and emotional fear. Therefore, I believe that a jury
has a right to decide whether these actions rise to the level of
outrageous behavior so as to allow Plaintiff to recover
damages for her alleged resulting severe emotional distress.
D. Conclusion
Because I believe that the majority fails to follow binding
precedent from this Circuit in holding that Plaintiff cannot go
forward with her claim against the County for sexual
harassment under Title VII and against the County, Likins,
and Black under the KCRA2, and because I therefore believe

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28 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
C. Intentional Infliction of Emotional Distress Claim
I also disagree with the majority’s holding that Plaintiff
cannot go forward with her claim for intentional infliction of
emotional distress against Likins under Kentucky law.
Although I agree that Plaintiff’s claims against the County
and Black for this tort fail as a matter of law inasmuch as
Plaintiff cannot show that the actions of the County and Black
rises to the requisite level of extreme and outrageous conduct,
I believe that her claim against Likins presents a different
scenario.
The majority accurately states that Kentucky recognizes a
claim for intentional infliction of emotional distress when
“[o]ne who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional distress to another . . . .”
Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984). However, the
majority inaccurately applies this standard to the facts of this
case.
Likins’ conduct against Plaintiff was not only intentional,
it clearly was outrageous enough to allow Plaintiff’s claim to
survive summary judgment. For example, Likins 1) told
several “dirty” jokes in Plaintiff’s presence; 2) made a verbal
advance toward Plaintiff insinuating that she could improve
her performance evaluation if she had a sexual encounter with
him; 3) referred to Plaintiff on one occasion as “hot lips”; 4)
made comments about Plaintiffs’s state of dress; 5) visited the
Road Department unaccompanied a total of fifteen times and
called Plaintiff on the telephone over thirty times solely for
the purpose of harassing Plaintiff; 6) destroyed the television
that Plaintiff occasionally watched at the Road Department;
7) stared at Plaintiff and made faces at her through the
window where she worked; 8) followed Plaintiff home from
work one day, pulled his vehicle up beside Plaintiff’s
mailbox, and gave her “the finger”; and 9) threw roofing nails
onto Plaintiff’s home driveway on several occasions.
Although it is true that the Kentucky Supreme Court has
stated that an action for outrage will not lie for “petty insults,
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
5
Defendants moved for summary judgment. On November
13, 1997, the district court granted defendant’s motion for
summary judgment on all claims except Morris’s § 1983
claims against Black and Likins. The court held, inter alia,
that because Morris had not been subjected to any adverse
employment action by defendants, her retaliation claim was
without merit. It also held that Black and Likins could not be
held individually liable under the Kentucky Civil Rights Act.
Black and Likins each then moved for summary judgment
with respect to the outstanding § 1983 claims, and the court
granted summary judgment on these claims for Black on
April 30, 1998, and for Likins on July 21, 1998.
Morris now appeals.
II
The district court granted summary judgment to defendants.
Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact, and that the moving party is entitled to
a judgment as a matter of law.” FED . R. C IV . P. 56(c). In this
respect, the moving party need not support its motion with
affidavits or other similar materials “negating” the opponent’s
claim, but need only show that “there is an absence of
evidence to support the non-moving party’s case.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the
moving party has met its burden of production, the
nonmoving party must by deposition, answers to
interrogatories, and admissions on file show specific facts that
reveal a genuine issue for trial. Id. at 324. “The mere
existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which
the jury could reasonably find for the plaintiff.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Thus, we
must consider “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is

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6 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
1It should be noted that Likins and Black cannot be held individually
liable under either Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., or the Civil Rights Act of 1991, 42 U.S.C. § 1981A et
seq. In Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997),
we stated, “[A]n individual employee/supervisor, who does not otherwise
qualify as an ‘employer,’ may not be held personally liable under Title
VII.”
so one sided that one party must prevail as a matter of law.”
Id. at 251-52.
A. Title VII claims against the County1
After the district court rendered its opinion in the instant
action, the Supreme Court decided Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998), and
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct.
2275 (1998), which substantially altered the principles to be
applied in sexual harassment cases in which a supervisor is
alleged to be the guilty party. The holding of the companion
cases is the same:
An employer is subject to vicarious liability to a
victimized employee for an actionable hostile
environment created by a supervisor with immediate (or
successively higher) authority over the employee. When
no tangible employment action is taken, a defending
employer may raise an affirmative defense to liability or
damages, subject to proof by a preponderance of the
evidence, see F ED . R. C IV . P ROC. 8(c). The defense
comprises two necessary elements: (a) that the employer
exercised reasonable care to prevent and correct promptly
any sexually harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the
employer to avoid harm otherwise. While proof that an
employer had promulgated an anti-harassment policy
with complaint procedure is not necessary in every
instance as a matter of law, the need for a stated policy
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
27
claimed by the majority -- provides an indicia of
discriminatory animus “based on sex,” inasmuch as the
harassing conduct in question began after Plaintiff refused
Likins’ sexual advance.
Accordingly, because I believe that the majority
impermissibly divorces and segregates Likins’ post-transfer
conduct from the four alleged acts which are of an explicitly
sexual nature so as to prevent Plaintiff from going forward
with her claim for sexual harassment under Title VII, I must
dissent. The majority’s decision rests upon an abdication
from the controlling precedent in this Circuit which requires
a reviewing court to consider a Title VII plaintiff’s hostile
work environment claim under the totality of the
circumstances, and expressly provides that in order for
conduct to be considered “because of sex,” the conduct need
not be sexual in nature. See Williams, 187 F.3d at 562-65.
B. Section 1983 Claim for Violation of Rights
Guaranteed by the Equal Protection Clause of the
Fourteenth Amendment
The majority holds that because Plaintiff’s claim of sexual
harassment fails as a matter of law, her § 1983 claim against
Black and Likins for violation of her rights guaranteed under
the equal protection clause of the Fourteenth Amendment
fails as well. However, as stated, I believe that the majority
erred in holding that Plaintiff could not go forward with her
sexual harassment claim under the KCRA against Likins and
Black inasmuch as the majority’s conclusion is contrary to
controlling law in this Circuit. Because I believe that Plaintiff
should be allowed to go forward with her claim for sexual
harassment against Likins and Black, I therefore believe that
she should be allowed to go forward with her § 1983 claim
against these Defendants as well. See Grano v. Department
of Dev., 637 F.2d 1073, 1082 (6th Cir. 1980).

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26 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
motivating force behind his harassing post-transfer conduct.
Again, Williams expressly holds that incidents of non-sexual
abuse should be considered in a sex harassment claim where
the motivating factor behind the abuse is sexual. See 187
F.3d at 565-66. The fact that the post-transfer events may
also be considered retaliatory in nature is of no moment to the
fact that Likins’ harassment was motivated by Plaintiff’s
rejection of Likins’ sexual advance. I believe that this is
particularly so at the summary stage of these proceedings
where a factual issue remains for the jury as to whether
Likins’ post-transfer conduct against Plaintiff would have
occurred “but for Plaintiff’s sex.” See Williams, 187 F.3d at
565 (citing Henson v. City of Dundee, 682 F.2d 897, 904
(11th Cir. 1982)).
Furthermore, the case upon which the majority relies in
support of its position was decided pre-Williams and, in any
event, is distinguishable. Specifically, the majority relies
upon Barnett v. Department of Veterans Affairs, in support of
its position that Likins’ conduct at issue could not be used to
support Plaintiff’s claim of sex discrimination inasmuch as
the conduct was not “because of Plaintiff’s sex.” However,
in Barnett, unlike in the case at hand, the only evidence
presented by the plaintiff to support her claim for sexual
harassment was that her supervisor had made it known that he
disliked the plaintiff and had used her as the butt of office
jokes. See 153 F.3d 338, 342-43 (6th Cir. 1998). Notably,
although the Barnett Court found that the plaintiff’s
allegations amounted to personal dislike as opposed to
discriminatory animus, the Court specifically qualified its
holding by stating that “[w]hile, under other circumstances,
proof of personal conflict may provide some indicia of
discriminatory animus, such is not the case here.” Id. at 343.
Therefore, even the Barnett Court recognized that in order for
alleged harassing conduct to be “because of sex” it need not
be sexually explicit, and that incidents of “personal conflict”
may be sufficient to create an inference of discrimination.
The facts of the instant case are indicative of those “other
circumstances” where proof of “personal conflict” -- as
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
7
2This claim, pre-Ellerth, would have been called a quid pro quo
sexual harassment claim by most courts. However, the Supreme Court
stated in Ellerth that “[t]he terms quid pro quo and hostile work
environment are helpful, perhaps, in making a rough demarcation between
cases in which threats are carried out and those where they are not or are
absent altogether, but beyond this are of limited utility.” 118 S. Ct. at
2264.
suitable to the employment circumstances may
appropriately be addressed in any case when litigating the
first element of the defense. And while proof that an
employee failed to fulfill the corresponding obligation of
reasonable care to avoid harm is not limited to showing
any unreasonable failure to use any complaint procedure
provided by the employer, a demonstration of such
failure will normally suffice to satisfy the employer’s
burden under the second element of the defense. No
affirmative defense is available, however, when the
supervisor’s harassment culminates in a tangible
employment action, such as discharge, demotion, or
undesirable reassignment.
Ellerth, 118 S. Ct. at 2270, see also Faragher, 118 S. Ct. at
2293. The Court further explained in Ellerth that for an
actionable hostile environment created by a supervisor
preceding an “employment decision to be actionable,
however, the conduct must be severe or pervasive.” 118 S.
Ct. at 2264.
1. Did the supervisor’s harassment culminate in a
tangible employment action?
Morris first argues that she was subject to a tangible
adverse employment action by refusing Likins’s sexual
demands,2 in that she received a “very good” evaluation
rather than an “excellent” evaluation. “When a plaintiff
proves that a tangible employment action resulted from a
refusal to submit to a supervisor’s sexual demands, he or she
establishes that the employment decision itself constitutes a

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8 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
3The record appears to be silent on the question of whether the “very
good” evaluation remains in Morris’s file.
change in the terms and conditions of employment that is
actionable under Title VII.” Ellerth, 118 S. Ct. at 2265. It
does not necessarily follow that a “downgraded” evaluation
culminates in a tangible employment action, which the Ellerth
court defined as “a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing
a significant change in benefits.” Id. at 2268. At a minimum,
the plaintiff must point to a tangible employment action that
she alleges she suffered, or is in jeopardy of suffering,
because of the downgraded evaluation. See Smart v. Ball
State Univ., 89 F.3d 437, 442-43 (7th Cir. 1996) (holding that
negative performance evaluations alone cannot constitute an
adverse employment action); Parrish v. Ford Motor Co., No.
89-6290, 1990 WL 109188 at *6 (6th Cir. Aug 2, 1990)
(indicating that the evaluation must have an “adverse impact”
on the plaintiff).
It is clear that, in this case, plaintiff suffered no tangible
employment action as a result of her “very good”
recommendation. She does not allege that she was unfairly
denied a promotion as a result of Likins’s actions. Her job
remained open at the time the district court rendered its
decision, and she was, at the time, free to return to it. Morris
could perhaps argue that the presence of the evaluation in her
personnel file3 would constitute a tangible employment
action, as the Eighth Circuit has held that the “papering” of a
personnel file with negative reports can constitute such an
employment action. See Kim v. Nash Finch Co., 123 F.3d
1046, 1060 (8th Cir. 1997). However, Likins’s evaluation of
Morris constituted nothing close to the “papering” of her
personnel file, and, moreover, his evaluation was in no way
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
25
Williams, 187 F.3d at 565.
Therefore, based upon the state of the law as it exists today,
it is clear that the majority’s analysis falls short when it
declines to include Likins’ conduct such as his post-transfer
visits to Plaintiff at the Road Department, phone calls to
Plaintiff, and other allegedly harassing behavior directed at
Plaintiff, into the hostile work environment equation. As
such, the majority’s legal conclusion that to consider the other
acts would be a “mistake” is erroneous.
Contrary to the majority’s assertions, Plaintiff does claim
that these alleged post-transfer incidents of harassment were
“because of sex” inasmuch as she relates them to the other
four incidents of an explicitly sexual nature -- particularly the
incident where she declined Likins’ sexual advance; and there
is sufficient evidence on the record to suggest that Likins’
alleged post-transfer conduct was committed “because of sex”
-- particularly at the summary judgment stage of the
proceedings where the acts in question were not committed by
Likins until after Plaintiff refused his sexual advance and
where the record is void of Likins treating any male co-
worker in this fashion. See Williams, 187 F.3d 565-66
(holding that “[t]he myriad of instances in which Williams
was ostracized, when others were not, combined with the
gender-specific epithets used, such as ‘slut’ and ‘fucking
women,’ create an inference, sufficient to survive summary
judgment, that her gender was the motivating impulse for her
co-workers’ behavior[,] . . . [and that] non-sexual abuse can
undermine competency as much as explicitly sexual harassing
behavior”).
The majority’s claim that Williams is inapplicable because
Likins’ post-transfer acts were “quite distinct, and separated
by explicit intimations of retaliation, not sex discrimination,”
flies in the face of the holding and spirit of Williams. See
Ante at n.7. Simply put, Williams is indistinguishable.
Likins’ harassing conduct against Plaintiff began when she
declined Likins’ sexual advance, thereby providing the

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24 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
significantly to the hostile environment.” Lipsett v.
University of Puerto Rico, 864 F.2d 881, 905 (1st Cir.
1988). To establish that the harm was “based on her
sex,” Williams “must show that but for the fact of her
sex, she would not have been the object of harassment.”
Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.
1982).
Thus, harassing behavior that is not sexually explicit
but is directed at women and motivated by discriminatory
animus against women satisfies the “based on sex”
requirement. See, e.g., Andrews v. City of Philadelphia,
895 F.2d 1469, 1485 (3d Cir. 1990) (“[T]he offensive
conduct is not necessarily required to include sexual
overtones in every instance.”); Lipsett, 864 F.2d at 905
(“[verbal attack,] although not explicitly sexual, was
nonetheless charged with anti-female animus, and
therefore could be found to have contributed significantly
to the hostile environment.”); Hall v. Gus Constr. Co.,
842 F.2d 1010, 1014 (8th Cir. 1988) (“Intimidation and
hostility toward women because they are women can
obviously result from conduct other than sexual
advances.”); Hicks v. Gates Rubber Co., 833 F.2d 1406,
1451 (10th Cir. 1987) (rejecting narrow definition of
sexual harassment that requires predicate acts to be
clearly sexual in nature); McKinney v. Dole, 765 F.2d
1129, 1138 (D.C. Cir. 1985) (“We have never held that
sexual harassment or other unequal treatment of an
employee or gourp of employees that occurs because of
the sex of the employee must, to be illegal under Title
VII, take the form of sexual advances or of other
incidents with clearly sexual overtones. And we decline
to do so now.”). Cf. Daniels v. Essex Group, Inc., 937
F.2d 1264, 1273 (7th Cir. 1991) (“Even though the
physical threat by Art was not specifically racial in
nature, it may be considered as a predicate act in
establishing racial harassment in a hostile work
environment, because it would have occurred but for the
fact that Daniels was black.”).
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
9
4Morris has introduced no evidence remotely showing that a “very
good” evaluation was, at the Road Department, a negative evaluation
(e.g., everyone else at the Department regularly received “excellent”
recommendations). In fact, Likins’s evaluation of Morris indicated that
she was a “very efficient and courteous employee.”
5This claim, pre-Ellerth, would have been called a hostile
environment sexual harassment claim by most courts. However, the
Supreme Court stated in Ellerth that “[t]he terms quid pro quo and hostile
work environment are helpful, perhaps, in making a rough demarcation
between cases in which threats are carried out and those where they are
not or are absent altogether, but beyond this are of limited utility.” 118
S. Ct. at 2264.
negative; Morris was rated “very good.”4 It is difficult to
believe that Morris stands in danger of being fired, demoted,
or transferred because her supervisor felt she was a “very
good” secretary. Thus, as a matter of law, Likins’s
harassment of Morris did not result in a tangible employment
action being taken against her.
2. Was the supervisor’s harassment severe or
pervasive?
Because plaintiff suffered no tangible employment action
as a result of her “very good” evaluation, she must establish
that she was subjected to severe or pervasive sexually
harassing conduct by Likins.5 The Supreme Court explained
in the recent case of Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 118 S. Ct. 998 (1998), that “Title VII does
not prohibit all verbal or physical harassment in the
workplace; it is directed only at ‘discriminat[ion] . . . because
of . . . sex.’ We have never held that workplace harassment,
even harassment between men and women, is automatically
discrimination because of sex merely because the words used
have sexual content or connotations.” Id. at 1002. The
Oncale Court went on to observe that
[t]he prohibition of harassment on the basis of sex
requires neither asexuality nor androgyny in the

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10 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
workplace; it forbids only behavior so objectively
offensive as to alter the “conditions” of the victim’s
employment. “Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work
environment — an environment that a reasonable person
would find hostile or abusive — is beyond Title VII’s
purview.”
118 S. Ct. at 1003 (quoting Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993)). “‘[S]imple teasing,’ offhand
comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” Faragher, 118 S. Ct. at 2283
(internal citations omitted). “[W]hether an environment is
‘hostile’ or ‘abusive’ can be determined only by looking at all
the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.” Harris, 510 U.S. at 23.
We hold that, under these facts, Morris cannot establish that
she was subjected to a hostile working environment. The sum
total of Likins’s actions that can be considered “because of
sex” are: (1) several dirty jokes he told in plaintiff’s presence;
(2) his alleged verbal sexual advance related to plaintiff’s
evaluation; (3) his one-time reference to plaintiff as “Hot
Lips”; and (4) his isolated comments about plaintiff’s state of
dress. Although Likins’s purported sexual advance was truly
offensive, it was the only advance that Likins allegedly made.
Most of Likins’s jokes were not aimed at the plaintiff, and
that fact can be relied upon as part of a court’s conclusion that
a defendant’s conduct was not severe enough to create an
objectively hostile environment. See Black v. Zaring Homes,
104 F.3d 822, 826 (6th Cir.), cert. denied, 118 S. Ct. 172
(1997). Likins’s behavior seems to have consisted of the kind
of simple teasing, offhand comments, and isolated incidents
that Faragher made clear did not amount to discriminatory
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
23
Indeed, the litany of severe harassing incidents began when
Plaintiff refused Likins’ sexual advance, and I believe that the
jury should be able to decide whether Likins’ conduct after
Plaintiff rejected him sexually was “because of sex;” the
majority’s conclusion otherwise is in complete contravention
of the state of the law as it exists today. See Williams v.
General Motors Corp., 187 F.3d 553, 564-65 (6th Cir. 1999)
(collecting cases).
The majority’s decision to view these other acts as
somehow divorced from the four express acts of a sexual
nature is precisely the type of flawed legal analysis the
Williams Court rejected. Specifically, in Williams, this Court
found that the district court had improperly “disaggregated the
[sexual harassment] plaintiff’s claims, contrary to the
Supreme Court’s ‘totality of circumstances’ directives, which
robbed the incidents of their cumulative effect . . . [and]
improperly concluded that the conduct alleged to have created
a hostile work environment must be explicitly sexual.” 187
F.3d at 561-62 (footnote omitted). The Williams Court
further criticized the district court because it “misconstrue[d]
the ‘based on sex’ requirement of a hostile-work-environment
claim and, in doing so, too narrowly construe[d] what type of
conduct can constitute sexual harassment.” Id. at 564. The
Court went on to expressly hold “that the conduct underlying
a sexual harassment claim need not be overtly sexual in
nature. Any unequal treatment of an employee that would not
occur but for the employee’s gender may, if sufficiently
severe or pervasive under the Harris standard, constitute a
hostile environment in violation of Title VII.” Id. at 565; see
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).
The Williams Court opined as follows regarding the proper
analytical approach for a claim of sexual harassment under
Title VII, as adopted by our sister circuits:
[T]he law recognizes that non-sexual conduct may be
illegally sex-based where it evinces “anti-female animus,
and therefore could be found to have contributed

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22 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
Road Department and telephone calls to Plaintiff; sitting in
his truck outside of the Road Department and making faces at
Plaintiff; following Plaintiff home, pulling his vehicle up
beside her mailbox, and giving Plaintiff “the finger”;
destroying the televison set that Plaintiff occasionally watched
at the Road Department; and throwing roofing nails onto her
home driveway on several occasions -- should be considered
as evidence to support her sexual harassment claim.
The majority maintains that to accept Plaintiff’s contention
“would be a mistake, as Morris does not claim that Likins
acted this way ‘because of sex.’” The majority equates
Likins’ actions with personal animus and belligerence toward
Plaintiff, but not sexual harassment under Title VII, and
therefore concludes that the other incidents upon which
Plaintiff relies cannot be used to show that she suffered a
change in the terms or conditions of employment “because of
her sex.” I disagree with the majority’s position which takes
a narrow view of the evidence and applies a literal
interpretation of the phrase “because of sex,” in contravention
to the Supreme Court’s directive that in a claim for sex
discrimination brought under Title VII, the evidence should
be “judged from the perspective of a reasonable person in the
plaintiff’s position, considering ‘all the circumstances.’” See
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118
S. Ct. 998, 1003 (1998). As the Supreme Court stated in
Oncale, “[t]he real social impact of workplace behavior often
depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully captured
by a simple recitation of the words used or the physical acts
performed.” Id. at 1003.
Here, I agree that Likins’ conduct such as placing roofing
nails on Plaintiff’s driveway; following her home, pulling his
vehicle beside her mailbox and giving her “the finger;” and
starring at Plaintiff through her window at work while making
faces at her, was done in retaliation against Plaintiff.
However, I disagree that Likins was retaliating against
Plaintiff solely because she complained to Judge Black.
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
11
6However, Likins’s conduct may very well constitute retaliatory
harassment, an issue we address infra at 12-16.
7Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999),
adds no support to the claim for sexual discrimination, as opposed to the
retaliation claim. In Williams, all of the events at issue took place within
the same context of actions by supervisors and co-workers in the
workplace environment, and could appropriately be compared with
actions toward workers of a different gender to assess discrimination. See
changes in the terms and conditions of a plaintiff’s
employment.
Plaintiff argues that we should include Likins’s alleged
“retaliatory conduct” (i.e., his alleged post-transfer visits at
the Road Department, phone calls to plaintiff, and other
allegedly harassing behavior directed at plaintiff) into the
hostile working environment equation. To do so would be a
mistake, as Morris does not claim that Likins acted this way
“because of sex.” There is no evidence in the record to
suggest that any of Likins’s alleged offensive post-transfer
conduct was committed “because of sex.” Rather, it seems to
have been motivated entirely by his personal displeasure
toward plaintiff and the complaints she made to Black.6 As
we recently observed, “[P]ersonal conflict does not equate
with discriminatory animus.” Barnett v. Dep’t of Veterans
Affairs, 153 F.3d 338, 342-43 (6th Cir. 1998), cert. denied,
119 S. Ct. 875 (1999) (upholding a district court’s
determination that witness’s statements describing how
supervisor made it known that “he disliked the plaintiff and
used her as the butt of office jokes, are consistent with
personal dislike rather than discriminatory animus”). Morris
cannot establish that Likins’s post-transfer conduct was
discrimination “because of sex” rather than simple
belligerence, see Richmond-Hopes v. City of Cleveland, No.
97-3595, 1998 WL 808222 at *5 (6th Cir. Nov. 16, 1998),
and therefore this alleged harassing conduct, which was in no
way sexual, is not actionable as sexual harassment under Title
VII.7

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12 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
Williams, 187 F.3d at 558-59. In this case, the incidents alleged after
Judge Black’s order transferring Likins away from Morris are quite
distinct, and are separated by explicit intimations of retaliation, not sex
discrimination. In addition, there is no allegation that, for example, Likins
viewed with equanimity complaints lodged against him by a male, while
retaliating savagely in the case of a female complainant. Were such
circumstances to exist, the Williams “aggregation” analysis might
appropriately be applied, but there are no such allegations or record
support in this case.
8We today take no position on whether an employer can be liable for
co-workers’ retaliatory harassment.
3. Retaliatory harassment
Morris also argues that she was unlawfully retaliated
against for notifying Black of Likins’s alleged harassment.
This circuit has not definitively answered the question of
whether retaliatory harassment by a supervisor can be
actionable in a Title VII case.
The Second and Tenth Circuits have both recently held that
an employer can be liable for co-workers’ retaliatory
harassment.8 See Richardson v. New York State Dept. of
Correctional Service, 180 F.3d 426, 446 (2nd Cir. 1999) (“an
employer [can] be held accountable for allowing retaliatory
co-worker harassment to occur if it knows about that
harassment but fails to act to stop it”); Gunnell v. Utah Valley
State College, 152 F.3d 1253, 1265 (10th Cir. 1998). See also
Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996)
(“Nothing indicates why a different form of retaliation —
namely, retaliating against a complainant by permitting her
fellow employees to punish her for invoking her rights under
Title VII — does not fall within the statute.”). However, no
circuit court has so far addressed, in the wake of Ellerth and
Faragher, whether retaliatory harassment by a supervisor can
be actionable in a Title VII case. We today hold that it can.
The basis for our decision lies in a common rule of
statutory construction: namely, that “[a] term appearing in
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
21
1I will consider Plaintiff’s claim for sexual harassment against the
County, Likins and Black brought under the KCRA in tandem with this
issue.
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
CLAY, Circuit Judge, concurring in part and dissenting in
part. I concur in the majority’s decision to reverse the district
court’s order granting summary judgment to Plaintiff on her
Title VII retaliation claim against the County, as well as her
Kentucky Civil Rights Act (“KCRA”) retaliation claim
against the County and Likins. However, because I believe
that questions of fact remain for trial regarding Plaintiff’s
sexual harassment claim brought under Title VII against the
County; her sexual harassment claim brought under KCRA
against the County, Likins, and Black; her § 1983 claim
against Likins and Black for violation of her equal protection
rights; as well as her state law claim for intentional infliction
of emotional distress against Likins, I respectfully dissent
from the majority’s decision to affirm the district court’s grant
of summary judgment to Defendants on these claims.
A. Title VII Sexual Harassment Claim Against County1
The majority holds that Plaintiff’s claim for sexual
harassment fails as a matter of law inasmuch as Likins’
conduct toward Plaintiff that can be considered “because of
sex” amounted to four incidents -- “(1) several dirty jokes he
told in plaintiff’s presence; (2) his alleged verbal sexual
advance related to plaintiff’s evaluation; (3) his one-time
reference to plaintiff as ‘hot lips’; and (4) his isolated
comments about plaintiff’s state of dress[ ]” -- which did not
amount to discriminatory changes in the terms and conditions
of Plaintiff’s employment. In so holding, the majority
declines to accept Plaintiff’s contention that Likins’ other acts
against her -- such as his alleged post-transfer visits at the

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20 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
discovering an obscenity written on his truck windshield, and
(3) discovering that a picture of his daughter he kept at work
was defaced).
III
The district court’s grant of summary judgment is
AFFIRMED in part, REVERSED in part, and REMANDED
for further proceedings consistent with this opinion.
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
13
several places in a statutory text is generally read the same
way each time it appears.” Ratzlaf v. United States, 510 U.S.
135, 143 (1994). The Supreme Court has made it clear that
severe or pervasive harassment by a supervisor based on an
individual’s sex can constitute “discrimination” under 42
U.S.C. § 2000e-2(a)(1), which forbids an employer “to
discriminate against any individual with respect to his
compensation, terms, conditions or privileges of employment,
because of such individual’s . . . sex.” See Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257,
2264 (1998). It naturally follows that, under Ellerth, severe
or pervasive supervisor harassment that is engaged in because
an individual “has opposed any practice made an unlawful
employment practice by” Title VII also can constitute
“discrimination” under 42 U.S.C. § 2000e-3(a). Section
§ 2000e-3(a) forbids
an employer to discriminate against any of his employees
. . . because [the employee] has opposed any practice
made an unlawful employment practice by this
subchapter, or because [the employee] has made a
charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under this
subchapter.
42 U.S.C. § 2000e-3(a) (emphasis added).
However, just as an employer has the opportunity to prove
an affirmative defense to severe or pervasive sexual
harassment by a supervisor, it follows that an employer
should also have the opportunity to prove an affirmative
defense to severe or pervasive retaliatory harassment by a
supervisor. Under agency principles, retaliatory harassment
does not, in and of itself, constitute a “tangible employment
action.” See Faragher v. City of Boca Raton, 524 U.S. 775,
118 S. Ct. 2275, 2293 (1998) (“No affirmative defense is
available, however, when the supervisor’s harassment
culminates in a tangible employment action, such as
discharge, demotion, or undesirable reassignment.”)

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14 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
(emphasis added). Therefore, an employer is entitled to the
same affirmative defense for retaliatory harassment that it is
entitled to for sexual harassment, since “when no tangible
employment action is taken, a defending employer may raise
an affirmative defense to liability or damages, subject to proof
by a preponderance of the evidence . . . .” Ellerth, 118 S. Ct.
at 2270. This defense
comprises two necessary elements: (a) that the employer
exercised reasonable care to prevent and correct promptly
any [] harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any
preventative or corrective opportunities provided by the
employer to avoid harm otherwise. While proof that an
employer had promulgated an anti-harassment policy
with complaint procedure is not necessary in every
instance as a matter of law, the need for a stated policy
suitable to the employment circumstances may
appropriately be addressed in any case when litigating the
first element of the defense. And while proof that an
employee failed to fulfill the corresponding obligation of
reasonable care to avoid harm is not limited to showing
any unreasonable failure to use any complaint procedure
provided by the employer, a demonstration of such
failure will normally suffice to satisfy the employer’s
burden under the second element of the defense.
Ellerth, 118 S. Ct. at 2270.
In sum, we today modify our standard for proving a prima
facie case of Title VII retaliation. A plaintiff must now prove
that: (1) she engaged in activity protected by Title VII; (2) this
exercise of protected rights was known to defendant; (3)
defendant thereafter took adverse employment action against
the plaintiff, or the plaintiff was subjected to severe or
pervasive retaliatory harassment by a supervisor; and (4)
there was a causal connection between the protected activity
and the adverse employment action or harassment. See
Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
19
did not intend this violation to be the basis of a § 1983
claim.”). Congress chose to limit Title VII liability to
employers only, and Morris cannot use § 1983 to circumvent
Congress’s intention.
D. Intentional infliction of emotional distress claims
Lastly, Morris claims that the district court improperly
granted summary judgment on her state intentional infliction
of emotional distress claims. Under Kentucky law, “[o]ne
who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is
subject to liability.” Craft v. Rice, 671 S.W.2d 247, 251 (Ky.
1984). The elements of proof necessary to sustain a claim of
outrageous conduct are: (1) intentional or reckless conduct on
the part of the wrongdoer; (2) outrageous and intolerable
conduct in that it offends against the generally accepted
standards of decency and morality; (3) a causal connection
between the wrongdoer’s conduct and the emotional distress;
and (4) the emotional distress must be severe. See Humana
of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 2-3 (Ky. 1990).
Kentucky law requires that the conduct in question must be “a
deviation from all reasonable bounds of decency and . . .
utterly intolerable in a civilized community.” Id. at 3 (citation
omitted). The conduct of the County and Black clearly did
not meet this very high threshold. Additionally, although
Likins’s alleged conduct was truly offensive, it also did not
rise to the level of outrageousness necessary for recovery
under Kentucky law. See, e.g., Allen v. Clemons, 920 S.W.2d
884 (Ky. App. 1996) (threshold level of outrageousness not
met where defendant erected billboard in his yard stating
“Danger—Child Molester in the Community,” after plaintiff
was convicted of sexual abuse); Humphress v. United Parcel
Service, Inc., No. 97-6409, 1998 WL 869985 (6th Cir. Nov.
30, 1998), cert. denied, 119 S. Ct. 1576 (1999) (threshold
level of outrageousness not met where a man, after filing a
labor grievance, was subjected to a “campaign of harassment”
by his co-workers which included (1) finding grease placed on
various parts of his work truck where it did not belong, (2)

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18 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
responding inadequately to Morris’s complaints. See Wu v.
Thomas, 996 F.2d 271, 274 (11th Cir. 1993), cert. denied, 511
U.S. 1033 (1994) (“a reasonable employer could not have
known for certain whether acts short of firing, demoting, or
refusing to hire an employee could violate Title VII”). The
language of the KCRA generally tracks the language of Title
VII and, thus, “should be interpreted consonant with federal
interpretation.” Meyers, 840 S.W.2d at 820. Therefore,
Black could not have violated clearly established statutory
rights under the KCRA, either. Because Black is entitled the
defense of qualified immunity under Kentucky law, we affirm
the grant of summary judgment on Morris’s state law
retaliation claims against Black.
C. § 1983 claims
The district court also granted summary judgment to Black
and Likins on Morris’s claims brought under 42 U.S.C.
§ 1983. The showing a plaintiff must make to recover on an
employment discrimination claim under Title VII mirrors that
which must be made to recover on an equal protection claim
under section 1983. See Risinger v. Ohio Bureau of Workers’
Compensation, 883 F.2d 475, 483-84 (6th Cir. 1989). Since
we have affirmed the dismissal of Morris’s sexual harassment
claims under Title VII, her analogous § 1983 sexual
harassment claims were therefore properly dismissed.
Additionally, even though we have reversed and remanded
Morris’s retaliation claims, the district court’s grant of
summary judgment on her analogous § 1983 retaliation claims
was also proper. Whatever the scope or source of a
constitutional claim of improper retaliation in other
circumstances, where the plaintiff asserts that she has been
retaliated against for filing a complaint under Title VII, her
sole federal remedy is the cause of action provided for under
Title VII. See Day v. Wayne County Bd. of Auditors, 749 F.2d
1199, 1204-05 (6th Cir. 1984) (“Here the district court found
that the defendants did not discriminate against the plaintiff.
The only wrongful act was their retaliation for the plaintiff’s
actions, a violation of Title VII. We conclude that Congress
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
15
Cir.), cert. denied, 498 U.S. 984 (1990) (outlining previous
standard for prima facie Title VII retaliatory harassment
case). If and when a plaintiff has established a prima facie
case, the burden of production of evidence shifts to the
employer to “articulate some legitimate, nondiscriminatory
reason” for its actions. Ibid. (quoting McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). The plaintiff,
who bears the burden of persuasion throughout the entire
process, then must demonstrate “that the proffered reason was
not the true reason for the employment decision.” Ibid.
(quoting Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981)). The employer may also prove an
affirmative defense to retaliatory harassment by a supervisor
by demonstrating: “(a) that the employer exercised reasonable
care to prevent and correct promptly any . . . harassing
behavior, and (b) that the plaintiff employee unreasonably
failed to take advantage of any preventative or corrective
opportunities provided by the employer to avoid harm
otherwise.” Ellerth, 118 S. Ct. at 2270.
Applying this new standard to the instant case, we first hold
that a reasonable juror could conclude that Likins’s behavior
after the lodging of Morris’s complaint constituted severe or
pervasive retaliatory harassment. Assuming plaintiff’s
version of the facts, Likins (1) visited the Road Department
unaccompanied a total of fifteen times, and called Morris on
the telephone over thirty times, despite Black’s warnings,
solely for the purpose of harassing Morris; (2) drove to the
Road Department on several occasions, and simply sat in his
truck outside the Department building, looking in Morris’s
window and making faces at her; (3) followed Morris home
from work one day, pulled his vehicle up beside her mailbox,
and gave her “the finger”; (4) destroyed the television Morris
occasionally watched at the Road Department; and (5) threw
roofing nails onto her home driveway on several occasions.
This behavior clearly constitutes more than simple teasing,
offhand comments, and isolated incidents that Faragher
indicated did not amount to discriminatory changes in the
terms and conditions of a plaintiff’s employment. Thus, we

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16 Morris v. Oldham County
Fiscal Court, et al.
No. 98-6117
must remand this case to the district court for further
proceedings. There, the County will have the opportunity to
prove the affirmative defense outlined in Ellerth.
B. State law sexual harassment claims
Morris sued the County, Black, and Likins under the
Kentucky Civil Rights Act (“KCRA”), K Y . R EV . S TAT .
344.010 et seq. The language of the KCRA generally tracks
the language of Title VII and, thus, “should be interpreted
consonant with federal interpretation.” Meyers v. Chapman
Printing Co., Inc., 840 S.W.2d 814, 820 (Ky. 1992).
Therefore, since plaintiff’s Title VII sexual harassment claims
against the County were properly dismissed, her state law
sexual harassment claims were properly dismissed as well.
However, since we reverse the grant of summary judgment on
Morris’s Title VII retaliation claim against the County, we
also reverse the grant of summary judgment on Morris’s state
law retaliation claim against the County. Since the KCRA
should be interpreted consonant with federal interpretation,
the County will have the opportunity to prove the affirmative
defense outlined in Ellerth to shield it from liability against
the state law retaliation claim as well.
The district court granted summary judgment for Black and
Likins on Morris’s state law claims because it believed that
Black and Likins could not be held individually liable under
the Kentucky Civil Rights Act. Plaintiff argues that K Y . R EV .
S TAT . § 344.280 permits the imposition of individual liability
on Black and Likins. The statute reads:
It shall be an unlawful practice for a person, or for two
(2) or more persons to conspire:
(1) To retaliate or discriminate in any manner against a
person because he has opposed a practice declared
unlawful by this chapter, or because he has made a
charge, filed a complaint, testified, assisted, or
participated in any manner in any investigation,
proceeding, or hearing under this chapter . . . .
No. 98-6117 Morris v. Oldham County
Fiscal Court, et al.
17
(Emphasis added).
This court has held that “an individual
employee/supervisor, who does not otherwise qualify as an
‘employer,’ may not be held personally liable under . . . KRS
Chapter 344,” because the KCRA “mirrors Title VII . . . .”
See Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir.
1997). Though this statement from Wathen is generally true,
it clearly does not apply to retaliation claims brought under
KY . R EV . S TAT . § 344.280. This section does not “mirror” 42
U.S.C. § 2000e-3(a), the analogous retaliation provision of
Title VII, which forbids retaliation by “an employer.” Rather,
§ 344.280 forbids retaliation by “a person.” The Kentucky
retaliation statute plainly permits the imposition of liability on
individuals. Therefore, the district court’s holding that Black
and Likins could not be held individually liable under the
Kentucky Civil Rights Act was incorrect. For this reason, we
reverse the grant of summary judgment on Morris’s state law
retaliation claims against Likins.
However, we affirm the grant of summary judgment for
Black on Morris’s state law retaliation claims against him on
qualified immunity grounds. Qualified immunity is a defense
that can be invoked under Kentucky law. “[G]overnment
officials are not subject to damages liability for the
performance of their discretionary functions when their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known. In most cases, qualified immunity is sufficient to
protect officials who are required to exercise their discretion
and the related public interest in encouraging the vigorous
exercise of official authority.” McCollum v. Garrett, 880
S.W.2d 530, 534 (Ky. 1994) (quoting Buckley v. Fitzsimmons,
509 U.S. 259, 268 (1993) (internal quotation marks omitted)).
Black was performing a discretionary function when
responding to Morris’s complaints, and this circuit has never
before said that retaliatory harassment is illegal under Title
VII. Because of this, Black could not have violated clearly
established statutory rights under Title VII by allegedly

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