Filed 14-CI-00061 William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 COMMONWEALTH OF KENTUCKY ELLIOTT CIRCUIT COURT Civil Action NO. 14-CI-61 DONNA ADKINS, COLLEEN PAYTON, JENNIFER DENNIS, and LISA SULIMAN V. PLAINTIFFS FOURTH AMENDED COMPLAINT JOSEPH MEKO, Individually, and in his Official capacity as Warden of the Little Sandy Correctional Complex, and LAURA DENNIS, Individually, and in her Official capacity as a Supervisor at the COMMONWEALTH OF KENTUCKY DEPARTMENT OF CORRECTIONS DEFENDANTS ********** Come the Plaintiffs, Donna Adkins, Colleen Payton, Jennifer Dennis, and Lisa Suliman, by counsel, and for their Fourth Amended Complaint states as follows: INTRODUCTION At all relevant times Plaintiffs were working as Correctional Officers at the LSCC Presiding Judge: HON. REBECCA K. PHILLIPS (637246) LSCC, (hereinafter “LSCC”) in Sandy Hook, Elliott County, Kentucky. Plaintiffs were all subjected to Defendants enabled Stephen Harper in perpetrating these attacks, failed to properly report and investigate Plaintiffs’ complaints of sexual harassment. Defendants Meko and the Kentucky 1 Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000001 of 000014 sexual harassment and sexual attacks by their superior at LSCC, Sergeant Stephen Harper. Filed 14-CI-00061 William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 Department of Corrections retaliated against Plaintiff Colleen Payton, created a “culture of indifference” towards sexual harassment which discouraged all Plaintiffs from reporting Sergeant Stephen Harper’s conduct, and otherwise intimidated Plaintiffs in violation of the Kentucky Department of Corrections’ (hereinafter “DOC”) policy. Defendants Meko and Dennis were negligent and grossly negligent in failing to act consistent with their ministerial duties to report and investigate complaints of sexual harassment, and the combined actions of Defendants created a hostile workplace environment in violation of the Kentucky Civil Rights Act. Plaintiffs previously received injunctive relief against Defendants, ordering that they Defendant Meko to provide Plaintiffs with employment free from sexual harassment and retaliation, as more fully set forth below. PARTIES 1. Plaintiff Donna Adkins is thirty-seven years of age and resides in West Liberty, Morgan County, Kentucky. Plaintiff Adkins has been employed as a correctional officer at the LSCC in Elliott County, Kentucky, for approximately nine and a half years. 2. The Plaintiff Colleen Payton is forty-three years of age and resides in Sandy Hook, Elliott County, Kentucky. Plaintiff Payton has worked for approximately six and a half years as a Presiding Judge: HON. REBECCA K. PHILLIPS (637246) cease and desist from alleged conduct described in this Complaint, and further requiring correctional officer at the LSCC in Elliott County, Kentucky. Plaintiff Lisa Suliman is 53 years of age and resides in Rowan County, Kentucky. Plaintiff Suliman was employed at the LSCC in Sandy Hook, Elliott County, Kentucky for approximately ten years. 4. Plaintiff Jennifer Dennis was a correctional officer at the LSCC until her forced -2- Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000002 of 000014 3. Filed 14-CI-00061 William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 resignation in 2014, and resides in Morgan County, Kentucky. 5. Defendant Joseph Meko is the Warden at LSCC in Elliott County, Kentucky. 6. Defendant Laura Dennis was a Sergeant and/or acted as supervisory staff at the LSCC in Elliott County, Kentucky at all times relevant to this Complaint. 7. The Commonwealth of Kentucky, Kentucky Department of Corrections is responsible for the operations and supervision of the LSCC. FACTS 1. On or about 2011 and 2012, Jennifer Dennis observed Sergeant Stephen Harper engage in a series of perverted sexual behaviors while on duty as a correctional officer. She periodically in the process of masturbating. Stephen Harper also touched Jennifer Dennis is a sexually offensive manner during this time period. 2. On or about July, 2012, while in a segregation area, Sergeant Stephen Harper exposed his penis to Jennifer Dennis, and asked her to touch it. Sergeant Stephen Harper then assaulted Jennifer Dennis by causing his penis to touch her arm. Jennifer Dennis screamed and ran away from this unwelcome sexual advance. 3. Jennifer Dennis immediately reported this incident to her supervisor, Defendant Laura Dennis, who violated the policy of the Defendant Department of Corrections (hereinafter Presiding Judge: HON. REBECCA K. PHILLIPS (637246) saw Stephen Harper standing in the bathroom with the lights off, exposing himself while he was “DOC”) by not properly reporting this sexual assault to Defendant Laura Dennis’ supervisors. While DOC policy requires any supervisor to report a complaint of sexual harassment directly to the Warden, District Supervisor, or Division Director, upon information and belief Defendant Laura Dennis never reported Plaintiff Dennis’ Complaint. 3 Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000003 of 000014 4. Filed 14-CI-00061 5. William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 Upon information and belief, an investigation was never initiated by the DOC Personnel Director as a result of Plaintiff Dennis’ complaint. 6. Defendant Laura Dennis failed to report the sexual attack that Jennifer Dennis reported to her on or about July, 2012, in violation of DOC policies. 7. As a result of the Defendants’ failure to act upon the sexual assault report of Jennifer Dennis, Jennifer Dennis was eventually forced to resign her position in 2014. 8. In or around April of 2013 Plaintiff Adkins was subjected to a series of sexual attacks by Sergeant Stephen Harper while on duty at the LSCC. Sergeant Stephen Harper Touched Plaintiff Adkins buttocks, kissed her neck, grabbed her breast, and attempted to rape her. Sergeant 9. Plaintiff Adkins reported these cumulative sexual attacks in September of 2014. Plaintiff Adkins reported these sexual attacks to Danny McGraw, a Captain at the LSCC. After reporting the incident to Captain Danny McGraw, she was then interviewed by Danny McGraw’s twin brother, Donnie McGraw, who is a Detective with the Kentucky State Police. This interview lasted approximately two hours, and Detective Donnie McGraw was hostile towards Plaintiff Adkins. 10. Upon information and belief the Kentucky State Police never made any investigation into Plaintiff Adkins’ report. 11. Presiding Judge: HON. REBECCA K. PHILLIPS (637246) Stephen Harper also grabbed her hand and placed it on his penis. Upon information and belief Captain Danny McGraw never reported Plaintiff Adkins 12. Upon information and belief, no investigation has ever been initiated by the Defendants as a result of Plaintiff Adkins complaint. 13. Plaintiff Adkins is aware of at least five other female employees at the LSCC who have -4- Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000004 of 000014 Complaint to his superiors, in violation of DOC policy. Filed 14-CI-00061 William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 suffered similar sexual conduct and harassment by Sergeant Stephen Harper. 14. Plaintiff Adkins did not file additional complaints against Sergeant Stephen Harper until September, 2014 for his proscribed conduct due to her legitimate fear of retaliation and reprisal. 15. On or about February 2, 2013 Plaintiff Payton was working with Sergeant Stephen Harper in the LSCC central control room, when Sergeant Stephen Harper pulled his penis out and put his hands down Plaintiff Payton’s shirt and pants. 16. This sexual attack was unwanted and rebuffed. 17. On or about February 20, 2013 Plaintiff Payton was working in the tower at the LSCC, when Sergeant Stephen Harper approached Plaintiff Payton and again pulled out his penis and Payton that if she would just “kiss him” he would quit. 18. Plaintiff Payton resisted this unwanted sexual advance and attack. 19. Plaintiff Payton suffered two additional sexual attacks from Sergeant Stephen Harper, both which occurred in the segregation cab at the LSCC while both were on duty. 20. The first attack occurred on or about March 16, 2013, when Sergeant Stephen Harper approached her inside the unisex bathroom and once again pulled his penis out and tried to get her to kiss him. He also tried to get her to touch his penis. 21. The second attack occurred on or about April 4, 2013, when Sergeant Stephen Harper Presiding Judge: HON. REBECCA K. PHILLIPS (637246) attempted to force Plaintiff Payton to touch his penis. Sergeant Stephen Harper told Plaintiff again approached Plaintiff Payton in the segregation cab and attempted to force her to touch his when another male officer came into the cab. 22. Plaintiff Payton reported all four incidents to Caption Terry Wallace, on or about May 24, 5 Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000005 of 000014 penis, again stating that if she would “kiss him” he would quit. This sexual assault only ended Filed 14-CI-00061 William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 2013. 23. Upon information and belief Caption Wallace did a written complaint, which was determined to be unsubstantiated by Defendant Meko and others up the chain of command. 24. During the investigation into the complaint filed by Plaintiff Payton, Defendant Meko purportedly separated Sergeant Stephen Harper from Plaintiff Payton by assigning Sergeant Stephen Harper to Central Control, but at this post Sergeant Stephen Harper regularly interacted with Plaintiffs and other female employees at LSCC. 25. On or about July 22, 2013 Plaintiff Payton also reported these four incidents of sexual harassment to Stephanie Appel, Director of the Personnel Division with the Kentucky from her superiors at LSCC for reporting sexual harassment. 26. Plaintiff Payton specifically requested a polygraph test, which was denied by her superiors at the LSCC. 27. Upon information and belief, Plaintiff Payton’s complaints was not meaningfully investigated nor were they processed consistent with DOC policy. 28. Upon information and belief LSCC human resources director Serena Waddell failed to properly investigate Plaintiff Payton’s reports of sexual harassment, and concluded that Plaintiff Peyton had “falsely accused” Sergeant Stephen Harper of sexual harassment without any basis Presiding Judge: HON. REBECCA K. PHILLIPS (637246) Department of Corrections. Plaintiff Payton also informed Ms. Appel that she feared retaliation whatsoever for such a finding. Upon information and belief, Defendant Joseph Meko failed to actually read the investigative report prepared on his behalf by Serena Waddell, though he did sign the report and blindly adopted its conclusions as his own. 30. After filing her complaint against Sergeant Stephen Harper, Plaintiff Payton suffered -6- Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000006 of 000014 29. Filed 14-CI-00061 William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 retaliation in the form of a written reprimands, suspensions, and investigation. 31. Plaintiff Payton was reprimanded and suspended for allegedly taking her boots off while on duty, allegedly showing a tattoo to coworkers at the LSCC, and for allegedly cussing. 32. Plaintiff Payton suffered retaliation in the form of Defendants’ baseless determination that she had “falsely accused” Sergeant Stephen Harper of sexual harassment. 33. Plaintiff Payton is aware of at least five other female employees at the LSCC who have suffered similar sexual conduct and harassment by Sergeant Stephen Harper. 34. Beginning in 2013 and continuing through July of 2014 Plaintiff Suliman has been inappropriately touched in a sexual manner by Sergeant Stephen Harper an estimated thirty and grabbing Plaintiff Suliman’s hand in an attempt to make her touch his penis. 35. On or about January 17, 2013 Sergeant Stephen Harper followed Plaintiff Suliman into a bathroom in the segregation unit of the LSCC while both were on duty. Thereafter Sergeant Stephen Harper exposed his private parts to Plaintiff Suliman and made unwelcomed sexual advances. 36. On or about December, 2013 Plaintiff Suliman reported these incidents of harassment to her superior Dovie Kelly, a Sergeant at the LSCC. 37. Upon information and belief Dovie Kelly reported these incidents to David Green and to Presiding Judge: HON. REBECCA K. PHILLIPS (637246) times. This inappropriate touching includes grabbing of Plaintiff Suliman’s breasts, buttocks, Defendant Meko. Upon information and belief, Defendants made no effort to initiate an investigation as a result of Plaintiff Suliman’s complaint. 39. Upon information and belief, Sergeant Dovie Kelly was reprimanded for reporting 7 Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000007 of 000014 38. Filed 14-CI-00061 William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 Plaintiff Suliman’s sexual harassment complaint up the chain of command. 40. Plaintiff Suliman is aware of other female employees at the LSCC who have suffered similar sexual conduct and harassment by Sergeant Stephen Harper. 41. Aside from her report to Sergeant Kelly, Plaintiff Suliman did not file additional complaints against Sergeant Stephen Harper for his proscribed conduct due to her legitimate fear of retaliation and reprisal. 42. After they were harassed and assaulted, Plaintiffs had to continue to work at the LSCC with their abuser Sergeant Stephen Harper, which perpetuated the hostile work environment. 43. Upon information and belief, Sergeant Stephen Harper will continue to sexually harass CLAIM I: HOSTILE WORK ENVIRONMENT IN VIOLATION OF THE KENTUCKY CIVIL RIGHTS ACT Paragraphs 1 through 43 are hereby incorporated by reference as if fully set out herein. 44. The actions described above resulted in a violation of Plaintiffs’ rights as protected by the Kentucky Civil Rights Act, KRS Chapter 344. 45. The actions of Defendants occurred while on duty, and constitute discrimination based on sex in violation of KRS 344.040. 46. The sexual harassment and sexual conduct committed by Sergeant Stephen Harper, and Presiding Judge: HON. REBECCA K. PHILLIPS (637246) Plaintiffs and other female corrections employees unless reprimanded. which Defendants knowingly allowed to persist, was so frequent and severe that it unreasonably 47. The actions of Defendants created a hostile work environment, in derogation of Plaintiffs’ personal dignity and freedom from humiliation, in violation of KRS Chapter 344. -8- Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000008 of 000014 interfered with Plaintiffs’ work performance. Filed 14-CI-00061 William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 These actions include but are not limited to the following: a. Defendants failed to investigate Plaintiffs’ complaints of harassment in a prompt, effective and uniform manner after being notified of Plaintiffs’ complaints; b. Defendants failed to take appropriate action to ensure that harassment did not recur; c. Defendants created a culture of fear for those considering reporting such harassment; d. Upon information and belief, Defendants failed to initiate an independent pattern of sexual misconduct allegation against Stephen Harper; e. Defendants failed to ensure that LSCC staff followed DOC policies and procedures, and specifically failed to properly train supervisor staff in sexual harassment policies and reporting procedures; and f. Defendants failed to take reasonable steps to protect staff from harm, thus creating a culture of indifference at LSCC. 48. As a result of Defendants’ violation of the Kentucky Civil Rights Act, Plaintiffs suffered humiliation, embarrassment, and emotional distress, for which they should be awarded Presiding Judge: HON. REBECCA K. PHILLIPS (637246) comprehensive internal administrative review of the clear and consistent CLAIM II: RETALIATION IN VIOLATION OF THE KENTUCKY CIVIL RIGHTS ACT AGAINST DEFENDANTS JOSEPH MEKO AND THE KENTUCKY DEPARTMENT OF CORRECTIONS Paragraphs 1 through 48 are hereby incorporated by reference as if fully set out herein. 9 Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000009 of 000014 compensatory damages in an amount deemed reasonable by this Court. Filed 14-CI-00061 49. William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 Plaintiff Colleen Payton engaged in a protected activity by reporting sexual harassment to her supervisor. 50. Defendants Joseph Meko and the Kentucky Department of Corrections knew that Plaintiff Colleen Payton engaged in this protected activity. 51. Adverse employment action was taken against Plaintiff Colleen Payton after she engaged in the protected activity. 52. A causal connection exists between the Plaintiff’s protected activity and the Defendants’ adverse employment action. CLAIM III: CLAIMS OF NEGLIGENCE AND GROSS NEGLIGENCE AGAINST DEFENDANT LAURA DENNIS 53. DOC Policies and Procedures impose a mandatory duty on all LSCC supervisors, including Defendant Laura Dennis, to ensure that any complaint of sexual harassment is put in writing; obtain written statements from the accused and others who witnessed the incident; and report the complaint of harassment directly to the Warden, District Supervisor, or Division Director. 54. Defendant Laura Dennis received a report of sexual harassment from Jennifer Dennis, and failed to take any of the mandatory, ministerial actions required, as detailed in Paragraph 48. 55. The actions described above constitute negligence and gross negligence, for which Presiding Judge: HON. REBECCA K. PHILLIPS (637246) Paragraphs 1 through 52 are hereby incorporated by reference as if fully set out herein. Plaintiffs should be awarded compensatory damages in an amount deemed reasonable by this 56. The actions of the Defendants, described above, were wanton and willful and therefore entitle Plaintiffs to an award of punitive damages under state law against Defendants. -10- Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000010 of 000014 Court. Filed 14-CI-00061 William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 CLAIM IV: CLAIMS OF NEGLIGENCE AND GROSS NEGLIGENCE AGAINST DEFENDANT JOSEPH MEKO Paragraphs 1 through 56 are hereby incorporated by reference as if fully set out herein. 57. As Warden, Defendant Joseph Meko had a mandatory duty to protect staff from harm, ensure a safe work environment, promote the fair treatment of employees, investigate reports of sexual harassment, and to maintain smooth operation of the LSCC. 58. There was a clear and consistent pattern of sexual misconduct allegations against Sergeant Stephen Harper, beginning in 2012 and continuing through 2014. 59. Defendant Joseph Meko was aware of allegations of sexual harassment from at least four (4) female corrections officers employed at the LSCC, perpetrated by Sergeant Stephen Harper. DOC Policies and Procedures impose a mandatory duty on Defendant Joseph Meko to contact the Division of Personnel Services regarding any complaint of sexual harassment. 61. Defendant Joseph Meko had a mandatory ministerial duty to ensure that the sexual harassment complaints made by Plaintiffs were properly investigated, and that appropriate action was taken in response to Defendants’ findings. 62. Defendant Joseph Meko negligently failed to conduct any meaningful investigation whatsoever into the complaints of sexual harassment made by Plaintiffs Jennifer Dennis and Lisa Suliman, in violation of DOC policy and procedure. 63. Defendant Joseph Meko saw fit to call in the Kentucky State Police to investigate the Presiding Judge: HON. REBECCA K. PHILLIPS (637246) 60. complaints of sexual harassment made by Plaintiff Donna Adkins against Sergeant Stephen and procedure. 64. Defendant Joseph Meko negligently failed to properly investigate the sexual harassment 11 Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000011 of 000014 Harper, but negligently failed to conduct an investigation at LSCC in violation of DOC policy Filed 14-CI-00061 William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 complaints made by Plaintiff Colleen Payton against Stephen Harper in violation of DOC policy and procedure. 65. Defendant Joseph Meko’s investigation into the sexual harassment complaints made by Plaintiff Colleen Payton negligently concluded that Colleen Payton “falsely accused’ Sergeant Stephen Harper of sexual harassment. 66. Defendant Joseph Meko negligently failed to read his own investigative report into the sexual harassment complaints of Colleen Payton against Sergeant Stephen Harper. 67. Defendant Joseph Meko negligently failed to separate Sergeant Stephen Harper from Plaintiffs and other female corrections officers, despite his knowledge of the numerous serious Defendant Joseph Meko negligently allowed the sexual harassment and sexual conduct perpetrated by Sergeant Stephen Harper to persist. 69. The actions described above constitute negligence and gross negligence, for which Plaintiffs should be awarded compensatory damages in an amount deemed reasonable by this Court. 70. The actions of the Defendants, described above, were wanton and willful and therefore entitle Plaintiffs to an award of punitive damages under state law against Defendants. WHEREFORE, the Plaintiffs seek relief as follows: 1. Judgment against the Defendants. 2. Compensatory damages for the pain and suffering, humiliation suffered by each of the Plaintiffs, including medical expenses and any counseling services the Plaintiffs have undergone as a result of the conduct of the Defendants, as well as any such expenses Plaintiffs may incur in the future. -12- Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk AMC : 000012 of 000014 68. Presiding Judge: HON. REBECCA K. PHILLIPS (637246) allegations of sexual harassment against Sergeant Stephen Harper. Filed 14-CI-00061 3. William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 Punitive damages against the Defendants in an amount sufficient to punish the Defendants and to deter them and others from similar conduct in the future. 4. Trial by jury on all issues so triable. 5. An award of costs and attorney fees pursuant to the Kentucky Civil Rights Act. 6. Any and all other relief deemed appropriate by the Court. /s/ Ned Pillersdorf, by JFC with permission NED PILLERSDORF PILLERSDORF, DEROSSETT & LANE 124 WEST COURT STREET PRESTONSBURG, KENTUCKY 41653 PH: (606) 886-6090 Attorney for Donna Adkins and Jennifer Dennis /s/ Joe F. Childers JOE F. CHILDERS BETHANY N. BAXTER JOE F. CHILDERS & ASSOCIATES THE LEXINGTON BUILDING 201 WEST SHORT STREET, SUITE 300 LEXINGTON, KENTUCKY 40507 PHONE: 859-253-9824 FAX: 859-258-9288 Presiding Judge: HON. REBECCA K. PHILLIPS (637246) RESPECTFULLY SUBMITTED, AMC : 000013 of 000014 Attorneys for Colleen Payton and Lisa Suliman 13 Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk Filed 14-CI-00061 William Jason Ison, Elliott NOT Circuit ORIGINAL Clerk DOCUMENT 06/04/2018 05:25:35 PM KYCIR 09/16/2016 CERTIFICATE OF SERVICE I hereby certify that true copies of the foregoing have been served on the parties by mailing the same to: Edward A. Baylous, II Justice and Public Safety Cabinet Office of Legal Counsel 125 Holmes Street Frankfort, Kentucky 40601 Counsel to Defendants Meko and Kentucky Department of Corrections On this the 16th day of August, 2016. AMC : 000014 of 000014 Presiding Judge: HON. REBECCA K. PHILLIPS (637246) /s/ Joe F. Childers JOE F. CHILDERS -14- Filed 14-CI-00061 09/16/2016 William Jason Ison, Elliott Circuit Clerk