Judge overrules motion to seal lawsuit filed by seven former Midway College employees

gkocher1@herald-leader.comApril 9, 2014 

VERSAILLES — A judge has overruled Midway College's motion to seal the entire public record of a lawsuit filed by seven former employees who claim that the school breached their contracts and committed age discrimination by terminating them last fall.

The plaintiffs say their contracts were terminated because of "lack of available funding." Leila O'Carra, an attorney for the college, had sought "the sealing of the entire record in this case" to prevent financial disclosures that could cause the private liberal arts college in Woodford County "significant harm."

On Wednesday, Woodford Circuit Judge Paul Isaacs said sealing the entire record is "too extreme."

Isaacs said he would entertain sealing portions of the record that dealt with sensitive financial information, but he did not specify what those might be.

The seven plaintiffs, who all taught in Midway College's School of Business, filed the lawsuit last month. They are Richard Berry, 61; Eric Bolland, 66; Stephen Clark, 65; Francis Fletcher, 61; Wendy Hoffman, 57; former Lexington Mayor Teresa Isaac, 58; and Saleem Mirza, 52.

The lawsuit says that on Sept. 20, 2013, the seven received letters advising them that "due to alleged financial hardships," Midway College was terminating its contracts "on the grounds of lack of 'available funding.'"

The plaintiffs argue that the college knew or should have known whether it had the financial resources to satisfy its contractual obligations owed to those who were terminated.

In arguing the motion to seal, O'Carra said the dispute deals solely with the employment relationship and claims by the plaintiffs that they were improperly terminated. There are no allegations implicating public safety or health.

Therefore, because the public interest is minimal, the court should exercise broad discretion and seal the entire record, O'Carra said.

Isaacs said he was hesitant to use such discretion because "every other business" would seek the same protection. He likened sealing the entire record to killing rather than using surgery to save an animal.

O'Carra said sealing the record is important to protect the privacy of people who are not parties in the suit.

"How can I decide the privacy issue if I don't know what the records are?" Isaacs asked.

The judge said he is a member of the board of trustees of a small college. He didn't mention it by name, but he is chairman of the board of trustees of Union College in Barbourville, where he earned his bachelor's degree in 1966.

Citing that experience, Isaacs said the motion suggested that there might be something embarrassing to Midway College if certain information became public.

To seal the entire record "would be abusing my discretion," Isaacs said.

The plaintiffs also allege in the lawsuit that Midway College President Richard Marsden "made representations" to them that their contracts would be renewed for the 2013-2014 academic year and that contracts would be issued. Marsden presented contracts about May 20, 2013, which the plaintiffs accepted and "relied upon in not seeking alternative employment elsewhere."

The plaintiffs say the college never advised them that contracts for the 2013-14 academic year "would not be fulfilled due to alleged financial hardship and lack of available funding."

Midway College filed a motion that seeks to dismiss this "promissory estoppel/detrimental reliance" count of the lawsuit. The college argues that, as a matter of law, the plaintiffs cannot sue both for breach of contract and for the broken promise of employment. To allow them to do so, the college argues in its motion to dismiss, would give the plaintiffs "a second bite at the apple" if they fail to prove breach of contract.

Judge Isaacs did not rule on the motion, but he hinted strongly that he agreed with the college and would dismiss the "promissory estoppel" count.

Greg Kocher: (859) 231-3305. Twitter: HLpublicsafety.

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