Petition for Writ of Certiorari — Dana Simmons, Petitioner v. Andrew Beshear, et al.

Supreme Court briefMar 9, 2023

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22-5404UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Deborah S. Hunt

Clerk

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: December 09, 2022

Mr. Taylor Payne

Office of the Governor of Kentucky

700 Capital Avenue

Suite 118

Frankfort, KY 40601-0000

Ms. Dana Simmons

122 E. Broadway Street

Frankfort, KY 40601

Mr. Jacob C. Walbourn

Kentucky Public Protection Cabinet

500 Mero Street

Fifth Floor

Frankfort, KY 40601

Ms. Jennifer M. Wolsing

Kentukcy Horse Racing Commission

4063 Iron Works Parkway, Building B

Lexington, KY 40511

Re: Case No. 22-5404, Dana Smmonsv. Andrew Beshear, et al

Originating Case No. : 3:21-cv-00052

Dear Counsel and Ms. Simmons,

The Court issued the enclosed opinion today in this case.

Enclosed are the court’s unpublished opinion and judgment, entered in conformity with Rule

36, Federal Rules of Appellate Procedure.

Sincerely yours,

s/Cathryn Lovely

Opinions Deputy

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NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0511n.06

Case No. 22-5404

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

DANA SIMMONS,

Plaintiff-Appellant,

BESHEAR,

ANDREW

WHETHERS, RAY PERRY,

individual and official capacities,

Defendants-Appellees.

)

GERINA )

in their )

Dec 09, 2022

DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF

KENTUCKY

)

OPINION

Before: SUTTON, Chief Judge; GRIFFIN, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge. During the COVID-19 pandemic, the Kentucky Personnel

Cabinet developed workplace safety policies for executive branch employees, including a

mandatory, at-work mask policy at the time relevant here. Plaintiff Dana Simmons was a staff

attorney working for the Kentucky Public Protection Cabinet during the pandemic. She was fired

for not complying with the mask policy, and she brought a § 1983 suit alleging that Kentucky

government officials violated her Fourteenth Amendment right to due process by enforcing the

policy. But Simmons fails to allege facts to support her procedural due process claims. And it is

not clearly established that the enforcement of an at-work COVID mask policy shocks the

conscience. Thus, Defendants are entitled to qualified immunity.

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In September 2020, the Kentucky Public Protection Cabinet hired Simmons as a staff

attorney. The Public Protection Cabinet is the arm of the executive branch that ensures the safe

and fair operation of Kentucky institutions. l

All was relatively well for Simmons, despite the COVID-19 pandemic, until two jobrelated changes came about in July 2021. First, Simmons transitioned from working remotely five

days a week to working in person on Wednesdays and Fridays. The second change came from a

memo circulated by the Personnel Cabinet’s Secretary to all executive branch employees in

response to the COVID-19 Delta variant. It required employees to wear a face covering in

executive branch offices if another employee was present. So, in practice, employees had to wear

face coverings in all common areas and during in-person meetings. The memo also warned:

“Employees who do not comply with this policy may be removed from Executive Branch

buildings/offices and may be subject to corrective or disciplinary action.” (Am. Compl., ECF. No

33-1, Page ID 944.)

There is no dispute that Simmons did not comply. On September 21, 2021, the Deputy

Commissioner of Simmons’ department approached her and told her that she needed to wear a

face covering while in common office areas. The next day, Simmons emailed her direct supervisor,

Benjamin Seigel, and told him about the conversation. She wrote: “Simply put, I do not wear face

coverings. I choose not to. I am of the belief that it is my prerogative to do so or choose not to do

so.” (Am. Compl., ECF. No 33-1, PagelD 945.) She also questioned whether the executive branch

could enforce this policy given that the Kentucky General Assembly “during the 2021 Special

i Team Kentucky, Public Protection Cabinet, https://ppc.ky.gov/ (last visited Nov. 28, 2022).

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Session declined to [ijssue a mask mandate.” (Am. Compl., ECF. No 33-1, PagelD 945.) Seigel

responded, confirming that the policy applies to Simmons and noting that the policy “applies to

Executive Branch employees only, no one else in the Commonwealth, so it does not conflict with

the Legislature’s decision not to impose a general mask mandate.” (Am. Compl., ECF. No 33-1,

PagelD 942 ,)2 More back-and-forth ensued, and Seigel offered to arrange a meeting between

Simmons and anyone in the Office of Legal Services about the policy.

On September 24, 2021, Simmons met with the General Counsel for the Public Protection

Cabinet, Ben Long, and the Manager of Human Resources, Jessica Van Sickel. The pair informed

Simmons that she would not be permitted to come to the office on Wednesdays and Fridays if she

didn’t wear a face covering and that she wouldn’t be permitted to take approved leave for those

days. Simmons received an email and letter from Long summarizing what took place at the

meeting, along with an appeal form. The email noted: “Any absence on those days due to noncompliance with cabinet policy may result in corrective or disciplinary action[.]” (Am. Compl.,

ECF No. 33-1, PagelD 947.)

Despite this information, Simmons continued to defy the policy. And her defiance kicked

off a series of stand-offs between Simmons and her higher-ups. On days where Simmons was

scheduled to work, she would ask permission to enter the building. After confirming that she had

no intention to abide by the policy, she would be directed to leave. This resulted in many days of

unapproved leave and disciplinary action.

All told, Simmons was reprimanded once, suspended twice, and ultimately terminated. The

September 30, 2021 written reprimand reminded her that she would be unable to enter the office

2 It also applied to visitors to executive branch offices and buildings.

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unless she abided by the policy and that failure to come in to work on Wednesdays and Fridays

would “result in unauthorized leave without pay” and possible “disciplinary action.” (Am. Compl.,

ECF No. 33-1, Page ID 958.) The letter also stated that she had a right to “respond to this reprimand

in writing” and that a copy of her response would be placed in her personnel files. (Am. Compl.,

ECF No. 33-1, Page ID 958.)

On October 5, 2021, she was suspended for three days. The suspension letter noted that

Simmons could appeal this action. She was again suspended on October 22, 2021, this time for

five days, and was informed that she could appeal this action.

And finally, on November 8, 2021, she received an intent to dismiss letter. This came on

the heels of more issues, including Simmons’ failure to report for work on a few days and general

inaccessibility. A pretermination hearing occurred on November 19, 2021, and her termination

was effective on December 16, 2021.

Simmons, however, had filed suit, pro se, on October 22,2021, long before her termination.

Much of her complaint concerns the alleged unenforceability of the mask policy under Kentucky

law. She alleges that a series of resolutions and bills that passed during the legislative sessions in

2021 “limit[ed] the Governor’s emergency powers,” including the Governor’s ability to “impose

requirements like a general mask mandate.” (Am. Compl. U 16, ECF No. 33, PagelD 849.) And

later in 2021, the Kentucky General Assembly declined to explicitly extend any executive order

or administrative regulations for mask mandates. These measures, she contends, divested the

executive branch of its authority to create and enforce the policy she challenges.

And because the Defendants disciplined her for her failure to abide by the policy, she

continues, they violated her Fourteenth Amendment right to due process. Simmons makes three

main arguments. First, Simmons alleges that she was deprived of a property interest in her

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employment. Second, she alleges that she was deprived of a protected liberty interest in her “good

name, reputation, honor, or integrity” when Defendants tarnished her “clean personnel record,”

with disciplinary actions, thereby reducing her future job prospects. (Am. Compl.

12, 43, ECF

No. 33, PagelD 848, 857 (citation omitted).) Third, Defendants violated her right to be free from

“arbitrary” government action when the Public Protection Cabinet enforced the “illegal” COVID

policy. (Am. Compl. ^ 70, ECF No. 33, PagelD 865.)

Defendants moved to dismiss, arguing that they are entitled to qualified immunity. The

district court agreed with Defendants and granted the motion. And Simmons timely appealed.3

II.

We review the denial of a motion to dismiss on qualified immunity grounds de novo.

Crawford v. Tilley, 15 F.4th 752, 762 (6th Cir. 2021). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.”’ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). And in determining whether government officials are entitled to qualified

immunity, we conduct a two-step inquiry. “[Ojfficers are entitled to qualified immunity under

§ 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness

of their conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct.

577, 589 (2018) (citation omitted). We can address these requirements in either order. Pearson v.

Callahan, 555 U.S. 223, 236 (2009).

3 In her complaint, Simmons requested both monetary damages and equitable relief. Qualified

immunity would not bar the latter. See Endres v. Ne. Ohio Med. Univ., 938 F.3d 281, 302 (6th Cir.

2019). But as we discuss below, her claims for equitable relief are now moot.

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III.

Before turning to the merits, we will briefly address some jurisdictional disputes. The first

involves what relief Simmons can obtain, given that she is a former employee and that the mask

mandate has now been repealed. Simmons argues that she can obtain injunctive relief against

Defendants in their official capacities under the Ex Parte Young exception to sovereign immunity.

And she originally requested that Defendants be “enjoin[ed] . . . from enforcing ... or otherwise

requiring compliance with the Face Covering Policy[.]” (Am. Compl., at 24, f 2, ECF No. 33,

Page ID 868.)

At the time Simmons filed suit, she was a state employee. In her original complaint, she

requested preliminary equitable relief to stop the state from enforcing the mask mandate. The

district court denied that relief shortly after she filed suit and she took an interlocutory appeal.

Before we could adjudicate that appeal, however, the district court dismissed her case entirely.

Simmons v. Beshear, No. 3:21-CV-052, 2022 WL 1434644 (E.D. Ky. May 5, 2022). So the denial

of preliminary relief merged into that final judgment. In addition, the governor rescinded the mask

mandate in February 2022. Simmons v. Beshear, No. 21-6034, 2022 U.S. App. LEXIS 18264, at

*4-5 (6th Cir. June 30, 2022). Thus, we dismissed her interlocutory appeal as moot. Id. at *5.

Although her briefing is unclear on whether she still seeks equitable relief, any request for

that relief is moot. After she filed this suit, Simmons was terminated, making her request to enjoin

the enforcement of the policy—and any prospective relief—moot. See Buntin v. Breathitt Cnty.

Bd. ofEduc., 134 F.3d 796, 801 (6th Cir. 1998) (vacating an injunction involving employee’s job

duties because the employee was no longer employed); cf. Diaz v. Mich. Dep’t of Corr., 703 F.3d

956, 964 (6th Cir. 2013) (“[Cjlaims for reinstatement are prospective in nature and appropriate

subjects for Ex Parte Young actions.” (citation omitted)). In addition, the mask mandate has been

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lifted without any reason to believe that it will be re-imposed, which also moots this part of her

case. See Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th Cir. 2022) (en banc).4

So, to sum it up, we will analyze whether Simmons successfully brought claims, in her

capacity as a former employee, against Defendants in their individual capacities for money

damages.

The other preliminary dispute involves standing. Simmons has standing to sue as a former

employee of the State. But Simmons challenges the district court’s determination that she lacks

standing to sue as a visitor to State buildings and offices. Recall that the policy at issue applies to

employees and visitors of executive branch offices and buildings.

We’re all familiar with the three elements to standing. “The plaintiff ‘must have

(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,

and (3) that is likely to be redressed by a favorable judicial decision.’” Buchholz v. Meyer Njus

Tanick, PA, 946 F.3d 855, 861 (6th Cir. 2020) (citation omitted). “[A]t the pleading stage, the

plaintiff must clearly allege facts demonstrating each element.” Id.

Simmons lacks standing to sue as a visitor because she doesn’t allege that she was, or

would imminently be, injured as a visitor. She alleges that, as an employee, she could not work at

the office on Wednesdays and Fridays because she refused to comply with the policy. And she

alleges injuries flowing from that reality. (Am. Compl. ^ 12, ECF No. 33, PagelD 848

(“Defendants have caused injury-in-fact to Plaintiff including economic injury . .. [and] damage

to Plaintiffs good name and reputation in that Plaintiffs personnel record is now full of

disciplinary sanctions[.]”).) She was not a visitor at her place of work. Nor did she allege that she

4 This also resolves her argument that Defendants impliedly consented to suit.

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intended to visit her former place of work or any other executive branch buildings as a visitor. See

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (“[Plaintiffs must demonstrate

standing for each claim that they press and for each form of relief that they seek[.]”); Lujan v. Defs.

of Wildlife, 504 U.S. 555, 560 (1992) (injury must be “actual or imminent, not conjectural or

hypothetical” (citation omitted)); Buchholz, 946 F.3d at 865 (future harm must be ‘“certainly

impending’” (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013)). So Simmons only

has standing to challenge the policy as a former employee.

IV.

A. Property-Interest Claim

We now turn to the merits. To start, we’ll address Simmons’ claim that she was deprived

of a constitutionally protected property interest in her employment with the Public Protection

Cabinet without due process.

There are two steps in this inquiry. First, Simmons must establish that she had a protected

property interest in her position at the Public Protection Cabinet. See Kuhn v. Washtenaw Cnty.,

709 F.3d 612, 620 (6th Cir. 2013). Second, if a constitutionally protected property interest is at

play, we must determine whether Simmons was “afforded the procedures to which government

employees with a property interest in their jobs are ordinarily entitled.” Id. (citation omitted).

Here, Simmons has a constitutionally protected property interest in her position at the

Public Protection Cabinet. (Appellees Br. at 18 (citing Ky. Rev. Stat. § 18A.095(1)).); see

ClevelandBd. ofEduc. v. Loudermill, 470 U.S. 532, 538 (1985) (noting that property interests can

be created by independent sources such as state law); Williams v. Kentucky, 24 F.3d 1526, 1537—

38 (1994) (“Statutes providing that state employees cannot be discharged or demoted without

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cause clearly give the employee a protected property interest in continued employment.”). She

therefore passes step one.

But Simmons fails to allege that she wasn’t afforded proper process. Under the Fourteenth

Amendment, employees with constitutionally protected property interests have a right to notice

and a pretermination hearing before being deprived of their property interest. See Kuhn, 709 F.3d

at 620. Simmons doesn’t allege any notice that she received was constitutionally deficient. In fact,

her Complaint details how Defendants continuously provided Simmons with written notice of the

potential outcome of her actions, see, e.g., (Am. Compl., ECF No. 33-1, PagelD 947 (warning that

absence “due to non-compliance with cabinet policy may result in corrective or disciplinary

action”)), and her Complaint shows that she was notified of her procedural rights when disciplinary

action was taken, see, e.g., (Am. Compl., ECF No. 33-1, PagelD 970 (suspension letter noting that

she could appeal this determination).) And Simmons received a pretermination hearing on

November 19, 2021, before her eventual termination on December 16, 2021.

Simmons pushes back in two ways. First, she argues that she shouldn’t have faced

disciplinary action because Defendants did not have authority to enact and enforce the policy. In

other words, she disagrees with being subject to “process” in the first place. But this argument is

misplaced because it hinges on the “reason for [her suspension] and ultimate termination,” which

is “not a consideration relevant to” whether she had “constitutionally adequate notice . . . and an

opportunity to respond.” Kuhn, 709 F.3d at 623. Simply put, this is an argument about the merits

of the policy disguised as an argument about what process is due. We cdn’t entertain that here.

And her second argument, that Defendants didn’t follow proper procedures and violated

Kentucky state law when putting the policy in place, suffers from the same problem. See Anderson

v. Ohio State Univ., 26 F. App’x 412, 414 (6th Cir. 2001) (allegations of a violation of a state’s

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formal procedure do not, on their own, establish a cognizable due process violation) (citing Purisch

v. Tenn. Tech. Univ., 76 F.3d 1414, 1423 (6th Cir. 1996)).

Her two arguments suffer from another related problem. They both stem from her belief

that “Appellees have violated established State law.” (Appellant Br. at 12; id., pp. 12-19.) This

simply isn’t the forum for those arguments. See Huron Valley Hosp. Inc v. City of Pontiac, 887

F.2d 710, 714 (6th Cir. 1989) (A § 1983 claim is “limited to deprivations offederal statutory and

constitutional rights. It does not cover official conduct that allegedly violates state law.”); see also

Pennhurst State Sch. & Hosp. v, Halderman, 465 U.S. 89, 106 (1984).

Ultimately, nothing defeats the fact that she was afforded notice and an adequate hearing.

We find that Simmons did not allege a violation of her right to procedural due process under the

Fourteenth Amendment based on a property interest in her employment.

B. Liberty-Interest Claim

Simmons contends that Defendants deprived her of her liberty interest in her “good name,

reputation, honor, or integrity” by issuing written reprimands and suspensions, and by ultimately

terminating her. (Appellant Br. at 19 (citation omitted).)

The Due Process Clause of the Fourteenth Amendment protects Simmons’ liberty interest

in her “‘reputation, good name, honor, and integrity.’” Crosby v. Univ. of Ky., 863 F.3d 545, 555

(6th Cir. 2017) (citations omitted). Generally, that liberty interest “is impugned when a state actor

stigmatizes an individual by means of voluntary, public dissemination of false information about

the individual.” Id. (cleaned up). To that end, Simmons must allege facts sufficient to establish the

following: (l)that Defendants made “stigmatizing statements” in conjunction with her

termination; (2) that those statements alleged more than “merely improper or inadequate

performance, incompetence, neglect of duty or malfeasance”; (3) that the “stigmatizing

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statements” were “made public”; (4) that “the charges made against [her] were false”; and (5) that

“the public dissemination [was] voluntary.” Id. If she established all five elements, she would be

entitled to a name-clearing hearing. Quinn v. Shirey, 293 F.3d 315, 320 (6th Cir. 2002) (citation

omitted). “It is the denial of the name-clearing hearing that causes the deprivation of the liberty

interest without due process.” Id. (citation omitted).

With all of this in mind, Simmons does not plead enough facts to establish that she has a

constitutionally protected liberty interest. She’s never denied that she intentionally violated the

mask mandate, which led to the disciplinary action. So even if any statements in her record are

“stigmatizing” (which they likely aren’t), they don’t allege anything beyond inadequate

performance, and they aren’t false. And although she alleges that the written reprimand,

suspensions, and termination tarnished her “clean personnel record,” (Am. Compl. U 12, ECF No.

33, PagelD 848.), she does not allege that Defendants made her employment record or its contents

public. Cf Crosby, 863 F.3d at 555 (involving a dean who gave stigmatizing statements at a faculty

meeting); Quinn, 293 F.3d at 318 (involving a plaintiff who alleged that “city and county officials

publicly issued disparaging statements”).

Finally, she alleges that finding new employment might be challenging given the reason

for her termination, but a charge that “merely makes a plaintiff less attractive to other employers”

doesn’t implicate a liberty interest. Crosby, 863 F.3d at 556 (citation omitted). We find it unlikely

that Defendants “imposed upon [her] a moral stigma such as immorality or dishonesty capable of

seriously damaging [her] standing and associations in the community[.]” Id. at 556 (cleaned up).

But we need not decide that because she needs to allege facts that would support all five elements

of this liberty-interest claim to be entitled to any process. And she has not. So her liberty-interest

claim fails.

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C. Arbitrariness Claim

Finally, Simmons argues that Defendants’ “enforcement” of the mask policy “rises to the

level of ‘abusive executive action’ that is arbitrary, oppressive, and which ‘shocks the

conscience.’” (Am. Compl. f 70, ECF No. 33, PagelD 865 (citation omitted).)

One liberty interest protected by substantive due process is “the right not to be subjected

to arbitrary and capricious government action that ‘shocks the conscience and violates the

decencies of civilized conduct.”’ Guertin v. State, 912 F.3d 907,918 (6th Cir. 2019) (quoting Cnty.

of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)). “[T]he measure of what is conscience

shocking is no calibrated yard stick,” nor is it “subject to mechanical application.” Lewis, 523 U.S.

at 847, 850. But “[o]ver the years, the courts have used several tropes to explain what it means to

shock the conscience.” Range v. Douglas, 763 F.3d 573, 589 (6th Cir. 2014). For example “[d]ueprocess-violative conduct. . . ‘shocks the conscience,’ infringes upon the ‘decencies of civilized

conduct,’ is ‘so brutal and so offensive to human dignity,’ and interferes with rights ‘implicit in

the concept of ordered liberty.’” Guertin, 912 F.3d at 923 (citation omitted). “The quintessential

example of ‘conscience-shocking’ behavior arose in the physical-force context: A police officer

directed a doctor to pump a suspect’s stomach to obtain illicit drugs as evidence.” GolfVill. N.

LLC v. Cnty. of Powell, 42 F.4th 593, 601 (6th Cir. 2022) (citing Rochin v. California, 342 U.S.

165, 172-73 (1952)).

This example puts into perspective why Simmons’ claim is unconventional. She’s alleging

that her employer’s decision to enforce a COVID policy was arbitrary in the constitutional sense.

Yet she cites no case law that establishes that this “shocks the conscience.” And in order to

overcome a defendant’s assertion of qualified immunity, a plaintiff must show that her asserted

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right is “clearly established.” See Wesby, 138 S. Ct. at 589 (citation omitted). Because Simmons

fails to do so, Defendants are entitled to qualified immunity.5

And to the extent that Simmons alleges that the policy violated state law, these claims are

not cognizable, as we’ve explained above. See supra p. 11.

For these reasons, Defendants are entitled to qualified immunity, and the decision below is

affirmed.

5 Sometimes our Court requires plaintiffs to establish both “an underlying constitutionallyprotected right” and conscience-shocking behavior; and other times, we have treated these two

elements as separate ways to state a substantive due process claim. Range, 763 F.3d at 589 (noting

the conflict in our cases); see EJS Props., LLC v. City of Toledo, 698 F.3d 845, 861-62 (6th Cir.

2012) (collecting cases). But because we resolved Simmons’ claim on the clearly established

prong, we need not consider this conflict.

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 22-5404

DANA SIMMONS,

FILED

Plaintiff - Appellant,

Dec 09, 2022

DEBORAH S. HUNT, Clerk

ANDREW G. BESHEAR, individually and in his official

capacity as Governor; GERINA WHETHERS, individually

and in her official capacity as Secretary of the Personnel

Cabinet; RAY PERRY, individually and in his official

capacity as Secretary of the Public Protection Cabinet,

Defendants - Appellees.

Before: SUTTON, Chief Judge; GRIFFIN and NALBANDIAN, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Eastern District of Kentucky at Frankfort.

THIS CAUSE was heard on the record from the district court and was submitted on the briefs

without oral argument.

IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is

AFFIRMED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Case: 3:21-cv-00052-WOB Doc#: 50 Filed: 05/05/22 Page: 1 of 24 - Page ID#: 1180

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

CENTRAL DIVISION AT FRANKFORT

CIVIL ACTION NO. 3:21-cv-052 (WOB)

PLAINTIFF

DANA SIMMONS

MEMORANDUM OPINION ORDER

VS.

DEFENDANTS

ANDREW BESHEAR, ET AL.

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

dismiss,

before

(Doc. 38),

the

Court

Plaintiff's

are

motion

Defendants', motion to strike,

strike,

(Doc.

After

careful

41),

Defendants'

for

(Doc.

jury

37),

motion

trial,

(Doc.

Plaintiff's motion to

and Plaintiff's motion to vacate,

consideration,

argument is unnecessary,

the

35) ,

Court

concludes

(Doc.

43).

that

oral

and it issues the following Memorandum

Opinion and Order.

FACTUAL AND PROCEDURAL BACKGROUND

On March 6,

emergency

2020, Governor Andy Beshear declared a state of

the

COVID-19 pandemic.

the pandemic,

Commonwealth

Kentucky

(Doc. 33-1 at 1-3).

response

the

Throughout the course of

the Governor issued various executive orders meant

Case: 3:21-cv-00052-WOB Doc #: 50 Filed: 05/05/22 Page: 2 of 24 - Page ID#: 1181

(See Doc. 33 at 1 14) .

to curb the spread of COVID-19.

These

executive orders, among other things, mandated the closing of nonessential business and schools and the wearing of face masks in

public areas.

Governor's

(Id.).

designees

Pursuant to the executive orders,

also

issued

orders

that

set

the

minimum

requirements for businesses and other community entities to help

the

citizens

pandemic.

Kentucky

stay

safe

for

the

duration

the

(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).

mandated

"businesses,

that

The Healthy at Work program

organizations,

and

entities

must

ensure, to the greatest extent practicable, that their employees, .

volunteers, and contractors wear a cloth mask."

Throughout

2020,

there

were

various

Governor's executive orders.

However,

Kentucky

that

Supreme

Court

held

(Id. at 7) .

challenges

the

in November of 2020, the

the

Governor

was

properly

exercising the power that had been delegated to him by the Kentucky

General Assembly under KRS Chapter 39A.

S. W. 3d 780,

813

(Ky. 2020).

Beshear v.

Acree,

615

The Court cautioned, however, that

the General Assembly had the authority to revoke that power if it

deemed fit.

Id.

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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

First, it prohibited

restricted the Governor's emergency powers.

the Governor from declaring a state of emergency based "upon the

same

substantially

similar

facts

and circumstances

the

original declaration or implementation without the prior approval

2021 Ky. Acts ch.

of the General Assembly."

Second,

regulation,

prohibited

other

any

executive

directive

order,

that

(SB 1)

§ 2(3).

administrative

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

the

Governor's

emergency powers triggered a new round of challenges in Kentucky

state courts.

The Franklin County Circuit Court issued a state-

wide temporary restraining order,

finding that the laws likely

violated the Kentucky Constitution.

Beshear v. Osborne, et al.,

No.

21-CI-89

Circuit Court,

(Franklin Cty.

Apr.

2021).

The Boone County

on the other hand, upheld the laws finding that

they were a valid exercise of the General Assembly's delegation

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powers.

Ridgeway,

et al.

(Boone Cty. June 15, 2021) .

Beshear,

No.

20-CI-678,

slip op.

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

Cameron

Assembly.

Beshear,

628

S.W.3d

61,

(Ky. 2021).

To solidify this holding, on September 7, 2021, the General

Assembly passed Joint Resolution 1, which provided that "all SARSCOV-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

Id.

the Governor's emergency powers.

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

Cabinet,

Office of Legal Services where she served as a Staff

Attorney II.

the

Commonwealth

Kentucky

Public

Protection

She began work on September 16,

(Doc. 33 at 1 2).

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2020 and worked remotely five days a week because of the COVID-19

pandemic.

(Id. at SI 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

(Id.).

their face coverings while at their workstations.

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.

this

interaction,

(Doc. 33 at 51 31) .

Plaintiff emailed her direct

Following

supervisor and

explained that she believed it was her prerogative to choose to

wear a mask or not.

(Id. at 1 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

Case: 3:21-cv-00052-WOB Doc #: 50 Filed: 05/05/22 Page: 6 of 24 - Page ID#: 1185

the policy only applied to executive branch employees.

1 at 73-74) .

(Doc. 33-

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.

SI 33) .

(Doc. 33 at

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 SI 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 SI 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

(Id.).

to work without a face covering.

Plaintiff replied that

she was already in the building and would not be wearing a face

covering.

(Id.).

which she did.

Mr. Long responded and instructed her to leave,

(Id.).

Plaintiff received a written reprimand the

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next day from Mr. Raley, the Executive Director of the Office of

(Id. at SI 36) .

Administrative Services.

Plaintiff

October 1, 2021.

emailed Mr.

again

showed

(Id.

for

in-person

work

She waited in the lobby and

at SI 31) .

Long that she was there to work but would not enter

(Id.).

the building without permission.

Plaintiff did not receive

Mr. Raley emailed her later in

a response and left the premises.

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 SI 38) .

After her suspension,

she continued with her telecommuting schedule and took approved

vacation from October 13,

SI 39) .

2021 until October 15,

2021. •

(Id.

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.

termination

hearing

was

held

(Id.

November

at SI 40) .

19,

2021

Her pre

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

1 Plaintiff's supplemental initial disclosures state her termination was

effective December 16, 2022.

(Doc. 48). Given that such date has yet

to occur, and the events referenced in the complaint leading up to her

termination all occurred in 2021, the Court concludes that this was a

typographical error meant to say December 16, 2021.

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requested

preliminary

injunction,

which

this

Court

denied,

finding that there was not sufficient evidence of irreparable harm.

(Doc. 12).

Plaintiff subsequently filed an appeal with the Sixth

Circuit.2

(Doc. 13).

(Doc. 33).

Plaintiff has since amended her complaint.

Defendants now move the Court to dismiss the case on

the grounds of sovereign and qualified immunity,

state a claim.

and failure to

(Doc. 38).

ANALYSIS

To survive a motion to dismiss,

the complaint must contain

"sufficient factual matter, accepted as true, to state a claim to

Ashcroft v.

relief that is plausible upon its face."

U.S.

662,

omitted).

678

(2009)

(citation

and

internal

Iqbal,

quotation

556

marks

While the Court construes the complaint in favor of the

complaining

party,

the

Court

need

not

conclusions or unwarranted factual inferences.

true

legal

Kardules v. City

of Columbus, 95 F.3d 1335, 1346 (6th Cir. 1996); see also Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560

(1992).

A. Standing to Challenge the Policy

The Court must first address standing.

v. Laroe Estates, Inc.,

137 S. Ct.

2 " As

1645,

Town of Chester, N. Y.

1650

(2017).

The Court

a general rule, an effective notice of appeal divests the district

court of jurisdiction over the matter forming the basis for the

appeal." N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th

Cir. 1987).

However, "an appeal from an order granting or denying a

preliminary injunction does not divest the district court of jurisdiction

to proceed with the action on the merits." Moltan Co. v. Eagle-Picher

Indus., Inc., 55 F.3d 1171, 1174 (6th Cir. 1995).

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assesses the following three elements in determining whether a

party has constitutional standing:

alleged

"injury

(1) whether the plaintiff has

(2)

fact,"

that

challenged action of the defendant, and (3)

the court.

traceable

the

can be redressed by

McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016)

(citing Lujan, 504 U.S. at 560-61).

When an injury has not yet occurred, a plaintiff must plead

that the injury is certainly impending or there is a substantial

risk the harm will occur.

Id.

"The plaintiff must show that [s]he

has sustained or is immediately in danger of sustaining some direct

injury as the result of the challenged official conduct and the

injury or threat of injury must be both real and immediate, not

conjectural or hypothetical."

U.S. 95, 101-02

(1983)

City of Los Angeles v.

Lyons,

(internal quotations omitted).

461

Broad and

speculative allegations are not sufficient;

the plaintiff must

allege concrete plans to show future injury.

See Lujan, 504 U.S.

at 579 (Kennedy, J. , concurring in-part)

(noting that the purchase

of a plane ticket would be sufficient to show future harm).

Plaintiff

different ways.

challenges

the

face

covering

policy

two

First, she alleges that the policy was a violation

of her constitutional rights as an employee of the Commonwealth.

Second, she alleges that because the policy applied to any visitor

of an executive branch building, it was an impermissible executive

order under current state law.

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Plaintiff has clearly established all three elements as it

relates to her as an executive branch employee—the defendants'

But Plaintiff

policies caused her to be placed on unpaid leave.

does not have standing to contest the constitutionality of the

policy requiring visitors to wear facemasks in executive branch

buildings because she has not alleged an injury in fact.

Plaintiff

has not alleged her plans to exercise her rights and enter a

governmental building without wearing a mask beyond the purview of

See Lyons, 461 U.S. at 105.

her job.

Her complaint is devoid of

Therefore,

any such allegations of future harm.

Plaintiff only

has standing to challenge the policy as an employee.

B. Mootness for Prospective Harm

Plaintiff also does not have standing to sue for prospective

injunctive or declaratory relief.

employee of the Commonwealth.

Plaintiff is

longer an

"In' order to fall within the Ex

parte Young exception, a claim must seek prospective relief to end

a continuing violation of federal law."

Diaz v. Michigan Dep't of

Corr., 703 F.3d 956, 964 (6th Cir. 2013).

This exception is simply

not

applicable

Because

based

the

facts

alleged

Plaintiff has been terminated,

violation

federal

law.

Instead,

there

the

complaint.

is no continuing

Plaintiff's

claims

for

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prospective

relief

See

are moot.3

Thomas

Tenn., 996 F.3d 318, 330 (6th Cir. 2021)

City of Memphis,

("Any injunction or order

declaring [the defendant's conduct] unconstitutional would amount

exactly

the

prohibits.");

type

advisory

Article

III

2:07-cv-06064,

2010

opinion

Hilhurn v. Dep't of Corr., No.

WL 703202, at *6 (D.N.J. Feb. 23, 2010)

that

("Plaintiff has been fired;

he is not at risk of being fired again; he has no standing to seek

prospective injunctive relief.").

Additionally,

federal

courts

cannot

state officials based on state law.

v. Halderman,

465 U.S. 89,

106

relief

against

Pennhurst State Sch.

& Hosp.

(1984)

grant

("It is difficult to think

of a greater intrusion on state sovereignty than when a federal

court instructs state officials on how to conform their conduct to

state

law.").

Accordingly,

Plaintiff's

claims

for

prospective

relief are dismissed for lack of subject matter jurisdiction.

C. Qualified Immunity for Damages

Amendment

bars

well-established

plaintiffs

principle

from suing

that

state

the

officials

Eleventh

their

official capacities for retroactive relief unless the state waives

immunity.

See

Edelman

Jordan,

415

U.S.

651,

665

(1974).

Kentucky has not waived said immunity with respect to Section 1983

3 Defendants argue that prospective relief is moot because the face

covering policy has been rescinded.

(Doc. 44 at n.2). However, because

it can be enacted again at any time, it is not moot on this basis. See

In Resurrection Sch. v. Hertel, 11 F.4th 437, 449-54 (6th Cir. 2021).

Case: 3:21-cv-00052-WOB Doc #: 50 Filed: 05/05/22 Page: 12 of 24 - Page ID#: 1191

litigation.

2013).

Sefa v. Kentucky,

510 F. App'x 435,

437

(6th Cir.

Thus, Plaintiff's request for damages against Defendants

in their official capacities is denied pursuant to Rule 12(b)(1).

However,

Plaintiff's

claims

for damages

are

against Defendants in their individual capacities.

still viable

Defendants, in

response, argue that they are entitled to qualified immunity.

Qualified

immunity

protects

government

officials

from

lawsuits filed against them in their individual capacities unless

"(1)

they violated a federal statutory or constitutional right,

and (2) the unlawfulness of their conduct was clearly established

at the time."

(2018).

District of Columbia v. Wesby, 138 S. Ct. 577, 589

The unconstitutionality of the alleged action must be

"beyond debate" when the official acted,

so much so that any

reasonable person would know they violated a right.

Luna, 577 U.S. 7, 12 (2015) .

Mullenix v.

"When the qualified immunity defense

is raised at the pleading stage,

the court must determine only

whether the complaint adequately alleges the commission of acts

that violated clearly established law." Rondigo, LLC v.

Twp. of

Richmond, 641 F.3d 673, 681 (6th Cir. 2011).

i. Substantive Due Process

Simmons's first claim is for violation of her substantive due

process rights.

Substantive due, process affords individuals with

protection against arbitrary governmental action, including "the

exercise of power without any reasonable justification in the

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service

legitimate

Sacramento v. Lewis,

Williams,

474

governmental

objective."

523 U.S. 833, 845-46 (1998)

U.S.

327,

331

(1986)).

Cty.

(citing Daniels

Courts have

likened

violations of substantive due process to that of arbitrary and

capricious

exercise

withstand

[a]

state

The

power.

state

action

"will

substantive due process attack unless it is not

supportable on any rational basis or is willful and unreasoning

action,

without consideration and in disregard of the facts or

Pearson v.

circumstances of the case."

F.2d

1211,

1221

(6th

Cir.

1992)

City of Grand Blanc,

(internal

quotation

961

marks

omitted).

In the instant case,

Simmons argues that the face covering

policy enacted by the Personnel Secretary was unlawful and not

within her powers, and the imposition of this requirement on her

as a government employee was contrary to clearly established law.

In simpler terms, she argues that she was subjected to an unlawful

policy.

To show that it was clearly established that the policy

was impermissible, she cites to legislation passed by the General

Assembly

which

revoked

the

Governor's

emergency

powers—a

revocation later upheld by the Kentucky Supreme Court.

The Court has discretion as to which of the two issues in a

qualified immunity analysis to address first—whether the plaintiff

has pled a constitutional violation or whether the law was clearly

established.

Hearring v.

Sliwowski,

712 F.3d 275, 279 (6th Cir.

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2013) . In this case, "it is plain that a constitutional right [was]

not clearly established but far from obvious whether in fact there

is such a right," so the Court begins its analysis there.

Pearson

Callahan, 555 U.S. 223, 237 (2009).

For a right to be clearly established,

"[t]he contours of

that right must be sufficiently clear that a reasonable official

would

violates

that

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

"This

understand

right."

that

what

doing

is not to say that an official action is protected by qualified

immunity unless the very action in question has been previously

held unlawful, but it is to say that in the light of preexisting

law the unlawfulness must be apparent."

Id.

(internal citations

omitted).

2020,

there

was

series

lawsuits

disputing

the

constitutionality of Governor Beshear's declaration of a state of

emergency

and

his

subsequent

executive

orders

COVID-19.

The Kentucky Supreme Court held that the Governor's

exercise of emergency powers was constitutional.

615 S. W. 3d 780,

813

(Ky.

2020).

relating

Beshear v. Acree,

The Court explained that the

General Assembly delegated to the Governor the power to declare a

state of emergency and issue executive orders under KRS Chapter

39A.

Therefore, the Governor's declaration of a state of emergency

and his designees'

subsequent issuance of executive orders in

response to the COVID-19 was proper.

However, the Court cautioned

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that this power was not absolute, writing, "there is nothing wrong

with this

[delegation of authority]

so long as the delegating

Id.

authority retains the right to revoke the power."

at 810

(quoting Commonwealth v. Assoc. Indus, of Ky. , 370 S.W.2d 584, 588

(Ky. 1963)) .

In early 2021,

the General Assembly did just that.

The

General Assembly declared an end to the state of emergency and

limited

the

Governor's

ability

relating to COVID-19 restrictions.

issue

new

executive

orders

In simpler terms, the General

Assembly took back the emergency powers it had delegated to the

Governor.

After

conflicting

circuit

court

orders

about

the

constitutionality of the General Assembly's actions, the Kentucky

Supreme Court upheld the General Assembly's

revocation of the

Governor's emergency powers pursuant to KRS Chapter 39A.

Beshear,

628 S.W. 3d 61

(Ky.

2021) .

Specifically,

Cameron

the Court

wrote, "the Governor's emergency powers derive from the statutes

from

[Kentucky's]

Constitution and not from his 'inherent' powers."

628 S.W.3d at

enacted

the

General

Assembly,

not

78; see also Oswald v. Beshear, 555 F. Supp. 3d 475, 478 (E.D. Ky.

Aug. 19, 2021)

("The executive branch cannot simply ignore laws

passed by the duly-elected representatives of the citizens of the

Commonwealth of Kentucky.").

In other words, the Kentucky Supreme

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Court held that the Legislature's revocation of emergency powers

was properly executed and.must be enforced.

Simmons reads the opinion in Cameron v. Beshear very broadly

when it is deliberately narrow.

She argues that the Kentucky

Supreme Court opinion holds that all mask mandates are now deemed

unconstitutional.

But Cameron v. Beshear is limited to the powers

delegated to the Governor under KRS Chapter 39A.

The statute

delegates to the Governor and the Division of Emergency Management

the power to act "to protect life and property of the people of

the Commonwealth, and to protect public peace, health, safety, and

. - and

welfare

order

ensure

the

continuity

effectiveness of government in time of emergency,

catastrophe."

disaster,

and

Notably absent from KRS Chapter 39A is discussion

of how the Governor should run his own executive branch.

Indeed,

the language of KRS Chapter 39A specifically refers to how the

Governor

may

act

protect

and

help

the

"people

the

Commonwealth."

Rather, the administration of executive branch employees is

controlled by KRS Chapter 18A.

Chapter

which

18A,

administration

appointment,

The General Assembly enacted KRS

establishes

promotion,

system

governing

the

transfer,

lay-off,

personnel

recruitment,' examination,

removal,

discipline,

and welfare of its classified, employees and other incidents of

state employment."

Defendants argue that the face covering policy

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was enacted pursuant to their authority under KRS Chapter 18A.030.

(Doc. 38-1 at 10).

Under KRS Chapter 18A.030(i) specifically, the

Personnel Secretary has the duty to "prepare, in cooperation with

appointing authorities and others, programs for employee training,

safety, morale, work motivation, health, counseling, and welfare

The

Secretary.

Governor

appoints

and oversees

the

Personnel

The General Assembly has not abrogated any of the

powers delegated to the executive branch under KRS Chapter 18A

throughout the COVID-19 pandemic.

Government

officials

benefit

from

qualified

immunity

Section 1983 cases when they followed a reasonable interpretation

of the law that is "assessed in light of the legal rules that were

clearly established at the time it was taken."

639.

Here,

the

General, Assembly

Anderson, 483 U.S.

delegated

discretionary

authority to the Personnel Secretary to create internal "programs"

designed to promote the health and safety of executive branch

employees.

The General Assembly did not define the term "program, "

nor did it outline methods of enforcement.

The scope of the

Personnel Secretary's discretionary authority was broad and had

gone uncontested up until this point.

Similarly, the scope of the

Public Protection Cabinet Secretary's authority to dictate how to

enforce this policy was similarly broad and discretionary.

At the time Plaintiff was disciplined for her noncompliance

with the face covering policy, the Kentucky Supreme Court had only

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ruled on the Governor's powers under KRS Chapter 39A.

It had not

addressed the authority the Governor and his designees had pursuant

to KRS Chapter 18A to enact a face covering policy in executive

branch buildings.

It can hardly be said that enacting the face

covering

policy

was

unreasonable

authority

vested

the

Personnel

Assembly.

Nor can it be said that Joint Resolution 1 clearly

prohibited

the

Personnel

interpretation

Secretary

the

General

from promulgating

internal

policies directed at promoting executive branch employees' health

and

The

wellness.

comprehensive.

language

the

resolution

not

that

Further, there is no evidence that the policy was

disseminated with any bad faith.

The contours of the Personnel Secretary's powers were not

clearly defined at the time Simmons was reprimanded for failing to

comply with

the

face

defendants,

their

qualified

immunity

covering policy.

individual

for

the

Therefore,

capacities,

damages

Simmons

are

the

three

entitled

"Qualified

seeks.

immunity is immunity from suit, and not merely liability."

Skousen

v. Brighton High Sch., 305 F.3d 520, 525 (6th Cir. 2002) .

This

Court

declines

ultimately

rule

the

constitutionality of the face covering policy under KRS Chapter

18A because

the

contours

of that

law are

addressed by Kentucky state courts."

cv-19,

2021 WL 5150603,

at *4

(E.D.

"more

appropriately

Scheweder v. Beshear, 3:21-

Ky.

Nov.

11,

2021).

The

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constitutional-interpretation

question

three

"no

are

the

Accordingly, all

a 1-Kidd, 563 U.S. 731, 735 (2011).

Defendants

effect

the Court need not resolve it.

outcome of the case," and thus,

Ashcroft v.

has

entitled

qualified

immunity

for

to her procedural

due

Plaintiff's substantive due process claim.

ii. Procedural Due Process

Plaintiff

also pleads

process rights.

In general,

protect

from

persons

violation

"procedural due process principles

deficient

procedures

lead

that

the

deprivation of cognizable liberty interests." Pittman v. Cuyahoga

Cty. Dep't of Children and Family Servs.,

Cir. 2011) .

Plaintiff must show (1) that she has been deprived of

cognizable

occurred

640 F.3d 716, 729 (6th

liberty

without

interest,

adequate

and

(2)

procedural

that

such deprivation

protections.

Id.

The

alleged deprivation must have been the result of more than a "lack

of due care."

Instead,

the

indifferent,

Daniels

Williams,

474 U.S.

327,

333

(1986).

"conduct must be

grossly negligent,

deliberately

or intentional."

Howard v. Grinage,

82 F.3d 1343,

1350 (6th Cir. 1996).

The Court notes it is difficult to ascertain the exact nature

of Plaintiff's procedural due process claim.

She does not plead

any procedural due process violations regarding her discipline or

termination.

On the contrary, she has attached exhibits to her

amended complaint showing that she had the opportunity to appeal

Case: 3:21-cv-00052-WOB Doc #: 50 Filed: 05/05/22 Page: 20 of 24 - Page ID#: 1199

the

disciplinary

actions

taken

against

her

and

have

termination hearing before her termination took effect.

at SI 33; Doc. 33-1 at 93-94).

pre-

(Doc. 33

But generally, Simmons takes issue

with the fact that the face covering policy was a regulation that

did not go through the proper notice and comment procedures.

She

also claims her reputation was harmed by the disciplinary measures

taken by her supervisors.

None of these, however,

amount to a

deprivation of her liberty interests.

As discussed in greater length above, the face covering policy

was promulgated as a "program" by the Personnel Secretary.

The

term "program"

indicates

that

the

face covering policy is

internal policy that does not require the promulgation of formal

See KRS §

rules that are subject to a notice and comment period.

(exempting

13A.010(2) (a)

from

notice

and

comment

"statements

concerning only the internal management of an administrative body

and not affecting private rights or procedures available to the

public.").

13A.130,

Further, the policy does not contradict KRS Chapter

which

provides

specific

examples

when

internal

policies or memorandums are prohibited.