                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0354n.06

                                           No. 17-6415

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                  Jul 17, 2018
                                                                             DEBORAH S. HUNT, Clerk
 RUSSELL V. POPE,                                 )
                                                  )
         Plaintiff-Appellant,                     )         ON APPEAL FROM THE
                                                  )         UNITED STATES DISTRICT
 v.                                               )         COURT FOR THE EASTERN
                                                  )         DISTRICT OF KENTUCKY
 TERRY CARL,                                      )
                                                  )
                                                                     OPINION
         Defendant-Appellee.                      )
                                                  )


Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Russell Pope, a nurse working for a

company that provides medical services to jails, worked as a psychiatric nurse at Kenton County

Jail. After Pope complained to his employer about inappropriate sexual behavior and harassment

by a fellow nurse, the employer investigated Pope’s complaint and determined that a jail deputy

had participated in some of the inappropriate conduct. Pope alleges that after the Kenton County

Jailer, Terry Carl, learned that Pope’s complaint had implicated one of the jail deputies, Carl

authorized a “lockout order” against Pope, which forced Pope to leave the jail immediately and

barred him from reentering the premises. Sometime after the lockout order went into effect, Pope’s

employer fired him. Pope sued his employer for unlawful termination, and the parties settled.

Pope then initiated this suit against Carl, alleging that Carl violated 42 U.S.C. § 1983, a Kentucky

civil-rights statute, and common-law tort protections by retaliating against Pope for complaining

about sexual harassment by authorizing the lockout order. The case proceeded to discovery, and
No. 17-6415
Russell Pope v. Terry Carl


Carl moved for summary judgment on all counts. Carl argued, among other things, that a release

agreement Pope had signed upon settling his earlier suit against his employer barred his current

claims against Carl. The district court granted summary judgment on this limited ground and

declined to consider the parties’ arguments on the merits. We now REVERSE.

                                     I. BACKGROUND

       Southern Health Partners, Inc. (“SHP”), a medical-services provider, contracted with

Kenton County Jail to provide medical, dental, and mental-health services to jail inmates. R. 20-

4 (Health Servs. Agreement at 1) (Page ID #83). From September 2012 until September 2015,

Russell Pope worked for SHP as a nurse at Kenton County Jail. R. 31 (Pope Dep. at 24–25, 163–

65) (Page ID #1867–68, 2006–08). On September 10, 2015, Pope’s supervisor, Shawnee Thoman,

announced that another nurse, Shawn Simms, would be promoted to a supervisory role. R. 24-2

(Thoman Announcement) (Page ID #928). This upset Pope, who believed that Simms had

repeatedly engaged in inappropriate and offensive behavior at work, including by placing a

sexually explicit screensaver on the medical unit’s computers. R. 28-1 (Email from R. Pope to K.

Utz, dated Sept. 16, 2015) (Page ID #1837). On September 16, 2015, Pope emailed Katie Utz, a

member of SHP’s human-resources department, to express his displeasure with Simms’s

promotion and to notify the company of Simms’s allegedly harassing behavior. Id.

       The next day, Thoman asked Pope to join a phone call with “corporate” to discuss his

allegations. R. 31 (Pope Dep. at 143–48) (Page ID #1986–91). Colonel Mike Jones, the Chief

Deputy Jailer, also participated in the call. R. 24-4 (Thoman Dep. at 78–79) (Page ID #1224–25).



                                               2
No. 17-6415
Russell Pope v. Terry Carl


It came out, either during the call or afterwards, that SHP had conducted an investigation into

Pope’s allegations and had learned that a jail deputy, and not Simms, had been responsible for the

offensive screensaver. R. 28-1 (Email from K. Utz to R. Pope, dated Sept. 17, 2015) (Page ID

#1839). The call ended, and Pope returned to work. R. 24-6 (Jones Dep. at 36) (Page ID #1344).

       Contradictory stories have emerged about Pope’s behavior following the call. Pope

testified that he resumed his work as usual. R. 31 (Pope Dep. at 154) (Page ID #1997). Jones, by

contrast, insisted that Pope was disruptive and agitated, which led Jones to ask the Jailer, Terry

Carl, to authorize a “Temporary Lockout Order” removing and barring Pope from the jail. R. 24-

6 (Jones Dep. at 56–57) (Page ID #1364–65). In any event, Carl quickly approved the lockout

order, and Jones told Pope to gather his belongings and escorted Pope from the jail. Id. at 57–58

(Page ID #1365–66); R. 31 (Pope Dep. at 156–57) (Page ID #1999–2000). As Pope was being led

out, Jones purportedly told him that Carl was upset because Pope had “involved [Carl’s] deputies

in an investigation.” R. 31 (Pope Dep. at 159) (Page ID #2002). The temporary lockout order

later became a permanent lockout order, id. at 95 (Page ID #646), and SHP terminated Pope’s

employment.

       In December 2015, Pope sued SHP in Kenton Circuit Court for age discrimination, sex

discrimination, and retaliation on the basis of his sexual harassment complaint. R. 24-2 (Compl.

¶¶ 21–35) (Page ID #916–18). The complaint also named Utz and Thoman as defendants and

alleged that they had conspired to interfere with Pope’s rights under Kentucky’s civil-rights statute

and had retaliated against Pope for complaining about sexual harassment. Id. ¶ 37 (Page ID #918).



                                                 3
No. 17-6415
Russell Pope v. Terry Carl


Pope claimed that as a result of his “denial of promotion and termination of employment,” he

“suffered lost wages and benefits, lost future earnings” and “sustained severe emotional distress.”

Id. ¶ 20 (Page ID #916).

       The parties settled Pope’s lawsuit in August 2016 and entered into a “Settlement,

Confidentiality and Release Agreement” (“Release Agreement”). R. 21-6 (Settlement Agreement

at 1) (Page ID #735). As part of the agreement, Pope agreed to “release[] and discharge[]

Defendants, including their . . . affiliated companies . . . , and any other person or entity charged

or chargeable with its responsibility or liability (the ‘Released Parties’).” Id. ¶ 3 (Page ID #736).

The Release Agreement further stated that it

       shall inure to the benefit of the parties released herein and their agents, servants,
       employees, representatives, insurers, sureties, past, present and future officers,
       directors, stockholders, attorneys, subsidiaries, affiliates, partners, insurers,
       predecessors and successors in interest, and assigns and all other persons, firms or
       corporations with whom any of the former have been, are now, or may hereafter be
       affiliated.

Id. at ¶ 13 (Page ID #739–40).

       Shortly after settling his suit against SHP, Pope initiated the present action in federal court

against Carl, the Jailer at Kenton County Jail, in his personal capacity. In this suit, Pope claims

that Carl violated 42 U.S.C. § 1983 and Kentucky Revised Statutes § 344.280 when he retaliated

against Pope for complaining about sexual harassment by locking him out of the jail (Counts One

and Two). R. 1 (Compl. ¶¶ 24–34) (Page ID #5–6). Pope further alleges that Carl tortiously

interfered with Pope’s business relationship with SHP by entering temporary and permanent

lockout orders (Count Three). Id. ¶¶ 35–44 (Page ID #7). As a result of Carl’s conduct, Pope


                                                 4
No. 17-6415
Russell Pope v. Terry Carl


alleges that he “sustained lost wages and benefits, lost future earnings, embarrassment and . . .

severe emotional distress.” Id. ¶ 23 (Page ID #5). Pope therefore seeks compensatory and punitive

damages. Id. ¶ 47 (Page ID #8).

       Following discovery, Carl moved for summary judgment, arguing, among other things,

that Pope waived his current claims against Carl when Pope signed the Release Agreement with

SHP because Carl was a “Released Party” under the agreement. R. 20-1 (Mem. in Support of Mot.

for Sum. J. at 2) (Page ID #59). The district court granted summary judgment to Carl on this

ground, holding that Carl was an “affiliate” under the terms of the Release Agreement. R. 36

(Mem. Op. & Order at 1) (Page ID #2076). Pope now appeals the district court’s judgment.

                                        II. DISCUSSION

A. Standard of Review

       We review de novo the district court’s grant of summary judgment. Pedicini v. Life Ins.

Co. of Ala., 682 F.3d 522, 526 (6th Cir. 2012). “As a federal court sitting in diversity, we apply

the choice-of-law provisions of the forum state.” Id. (quoting NILAC Int’l Mktg. Grp. v. Ameritech

Servs., Inc., 362 F.3d 354, 358 (6th Cir. 2004)). Kentucky courts typically apply “the law of the

state with the most significant contacts with the parties and the transaction” in contract disputes.

State Farm Mut. Auto. Ins. Co. v. Hodgkiss-Warrick, 413 S.W.3d 875, 887 (Ky. 2013). Here, the

parties agree that we must turn to Kentucky law to interpret the Release Agreement.

       “As with contracts generally, the courts must look to the language of the release to

determine the parties’ intentions.” Abney v. Nationwide Mut. Ins. Co., 215 S.W.3d 699, 703 (Ky.



                                                 5
No. 17-6415
Russell Pope v. Terry Carl


2006), as modified on denial of reh’g (Mar. 22, 2007). When a contract is unambiguous, courts

must “look only as far as the four co[rn]ers of the document to determine [the parties’] intent.” Id.

“[T]he interpretation of a contract, including determining whether a contract is ambiguous, is a

question of law for the courts and is subject to de novo review.” Id. (quoting Cantrell Supply, Inc.

v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. Ct. App. 2002).

B. Scope of the Release Agreement

         The district court erred in granting summary judgment in Carl’s favor because the Release

Agreement does not govern Pope’s claims against Carl. Paragraph 3 of the Release Agreement

precludes claims against “Released Parties,” which are defined in relevant part as “Defendants,

including their . . . affiliated companies . . . , and any other person or entity charged or chargeable

with [SHP’s] responsibility or liability.”1 R. 21-6 (Release Agreement ¶ 3) (Page ID #736). To

start, Carl is not an “affiliated company” under the agreement. Obviously he is not a company.

Nor is he an “affiliate.” Under Kentucky law, “where words having a definite legal meaning are

knowingly used in a writing the parties will be presumed to have intended such words to have their

proper legal meaning in the absence of any contrary intention appearing in the instrument.” Sparks


         1
          Technically, the contract releases “Defendants, including their . . . affiliated companies . . . , and any other
person or entity charged or chargeable with its responsibility or liability.” R. 21-6 (Release Agreement ¶ 3) (Page ID
#736) (emphasis added). The term “its” in the final clause has no natural antecedent, rending the phrase nonsensical
as written. Nevertheless, both Carl and Pope read “its” to refer to SHP, and we agree that this interpretation reflects
the parties’ “manifest intent.” See Lyndon Prop. Ins. Co. v. Houston Barnes, Inc., No. 3:04 CV 174, 2005 WL
1840254, at *4 (E.D. Tenn. July 26, 2005) (“[A] general rule of contract construction holds that a mere mathematical,
typographical or clerical error will not defeat the manifest intent of the parties if the intent can otherwise be gleaned
from the four corners of the contract.”). We therefore find that “its” refers to SHP. Cf. Polis v. Unknown Heirs of
Jessie C. Blair, 487 S.W.3d 901, 905, 908 (Ky. Ct. App. 2016) (holding the trial court did not err in ignoring
“typographical differences” in deeds and instead construed the deeds based on their “clear intent,” as doing so “ma[d]e
sense of what could otherwise be seen as nonsensical”).

                                                            6
No. 17-6415
Russell Pope v. Terry Carl


Milling Co. v. Powell, 143 S.W.2d 75, 77 (Ky. 1940); see also Superior Steel, Inc. v. Ascent at

Roebling’s Bridge, LLC, 540 S.W.3d 770, 785 (Ky. 2017), reh’g denied (Mar. 22, 2018) (holding

contract provision unambiguous where it employs a “legal term of art with a clear meaning”). The

word “affiliate” is known in law to mean “[a] corporation that is related to another corporation by

shareholdings or other means of control; a subsidiary, parent, or sibling corporation.” Black’s Law

Dictionary (10th ed. 2014). There is no indication that some other meaning was intended here.

       Nor is Carl a person “charged or chargeable with [SHP’s] responsibility or liability.” R.

21-6 (Settlement Agreement ¶ 3) (Page ID #736). Pope is charging Carl with Carl’s own alleged

misconduct and mistreatment of Pope, not with SHP’s allegedly unlawful behavior. As much is

clear from the simple fact that the claims Pope now brings against Carl could never have been

brought against SHP. For instance, Pope is suing Carl for retaliating against Pope’s exercise of

his First Amendment rights, in violation of 42 U.S.C. § 1983. See R. 1 (Compl. ¶ 28) (Page ID

#4). Pope could not have levied such constitutional allegations against SHP, for the “First and

Fourteenth Amendment protections, codified in 42 U.S.C. § 1983, are triggered only in the

presence of state action.” Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000). “[A]

private entity acting on its own cannot deprive a citizen of First Amendment rights.” Id. Pope’s

tortious interference claim is similarly untenable vis-à-vis SHP. In this claim, Pope seeks to hold

Carl responsible for his role in “inducing or otherwise causing [a] third person”—i.e., SHP—“not

to perform [its] contract” with Pope. Uppal v. Gateway Reg’l Health Sys., Inc., No. 2004-CA-

000393-MR, 2005 WL 2323174, at *4 (Ky. Ct. App. Sept. 23, 2005) (quoting Restatement



                                                7
No. 17-6415
Russell Pope v. Terry Carl


(Second) of Torts § 766 (1979)). Under Kentucky law, such conduct renders Carl liable “for the

pecuniary loss resulting to the [plaintiff] from the failure of [SHP] to perform the contract.” Id.

(quoting Restatement (Second) of Torts § 766 (1979)). By definition, then, Pope’s tortious-

interference claim concerns Carl’s “responsibility or liability”—not SHP’s. In short, SHP’s

alleged misconduct—terminating Pope’s employment in violation of various Kentucky statutory

civil rights provisions—and Carl’s alleged misconduct—locking Pope out of the jail because Pope

implicated jail deputies in an investigation—are distinct wrongful acts, attributable to distinct

actors, and violative of distinct legal protections. Carl is therefore not “charged or chargeable with

[SHP’s] responsibility or liability” with respect to Pope, and is thus not a “Released Part[y]” under

the Release Agreement. See R. 21-6 (Release Agreement at 2) (Page ID #736).

       Carl nevertheless argues that he is covered by the Release Agreement because paragraph

13 provides that the agreement

       inure[s] to the benefit of the parties released herein and their agents, servants,
       employees, representatives, insurers, sureties, past, present and future officers,
       directors, stockholders, attorneys, subsidiaries, affiliates, partners, insurers,
       predecessors and successors in interest, and assigns and all other persons, firms
       or corporations with whom any of the former have been, are now, or may
       hereafter be affiliated.

R. 21-6 (Release Agreement ¶ 13) (Page ID #739–40). Frankly, we are unsure what it means for

the Release Agreement to “inure to the benefit” of persons “affiliated” with the released parties.

Carl seems to believe that the Release Agreement inures to his benefit by releasing him from

liability. But the Release Agreement specifically identifies the “Released Parties”—i.e., the parties

who are “forever release[d] and discharge[d]” from liability “arising out of” or “pertaining to[] the


                                                  8
No. 17-6415
Russell Pope v. Terry Carl


claims and matters alleged” in Pope’s suit against SHP. Id. at 2 (Page ID #736). It is hard to

understand why the drafters would limit the class of “Released Parties” in one provision and then

expand it in another. “Because a contract ‘should be read to give effect to all its provisions and to

render them consistent with each other,’” Gallo v. Moen Inc., 813 F.3d 265, 270 (6th Cir. 2016)

(quoting Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 (1995)), the Release

Agreement almost certainly “inure[s] to the benefit” of persons “affiliated” with “Released

Parties” in some way other than releasing them from liability. Ultimately, however, we need not

resolve this ambiguity (nor ask the district court to do so), because Carl is no more an “affiliate”

of SHP for the purposes of paragraph 13 than he is an “affiliated company” under paragraph 3.

        According to Carl, he is “affiliated” with SHP because (1) “it is Jailer Carl’s responsibility

to provide medical services to inmates, and he does so contractually through SHP,” Appellee Br.

at 8; (2) “SHP and its staff are subject to the security controls of Jailer Carl,” id.; and (3) the Health

Services Agreement between Kenton County Jail and SHP includes cross-indemnification

provisions, id. at 8–9. We reject each position in turn.

        First, SHP does not contract with Carl to provide medical services with the Kenton County

Jail; SHP contracts with Kenton County. R. 20-2 (Health Servs. Agreement at 1) (Page ID #83).

And even if SHP did contract with Carl, identifying any party with whom SHP contracts as an

“affiliate” would render superfluous almost every other entity in paragraph 13 of the Release

Agreement. After all, SHP also contracts with its “agents, servants, employees, representatives,

insurers, sureties,” et cetera. See R. 21-6 (Release Agreement ¶ 13) (Page ID #739–40). Kentucky



                                                    9
No. 17-6415
Russell Pope v. Terry Carl


courts generally will not “accept” contractual interpretations that render some provisions “mere

surplusage and superfluous,” see Metro Louisville/Jefferson Cty. Gov’t v. Abma, 326 S.W.3d 1, 9

(Ky. Ct. App. 2009), and neither shall we.

       Second, SHP is not subject to Carl’s “control” as that term is used within the context of

affiliated parties. As noted above, Black’s Law Dictionary defines “affiliate” to mean “[a]

corporation that is related to another corporation by shareholdings or other means of control; a

subsidiary, parent, or sibling corporation.” Black’s Law Dictionary (10th ed. 2014). Such control

is vastly different than the control Carl contends he harbors over SHP and its staff—namely, the

ability to control SHP’s access to the Jail. See Appellee Br. at 7. This is essentially the same

“control” dentists wield over patients’ access to their offices and store owners wield over patrons’

access to their stores. Carl offers no support for his claim that the type of control he exerts over

Kenton County Jail’s premises is relevant for defining “affiliated,” as that term is typically used

in liability-release agreements.   There is therefore no reason to think that Carl’s tortured

construction “comport[s] with the reasonable intent of the parties in making the contract.” Senn’s

Adm’x v. Mich. Mut. Liab. Co., 267 S.W.2d 526, 527 (Ky. 1954) (quoting Gen. Accident, Fire &

Life Assur. Corp. v. Louisville Home Tel. Co., 193 S.W. 1031, 1033 (Ky. 1917)).

       Finally, the cross-indemnification provisions in the Health Services Agreement render SHP

and Carl less “interdependen[t]” than Carl claims. See Appellee Br. at 8. Carl insists that § 8.2

“provide[s] that SHP may be joined as a party defendant in a lawsuit against Jailer Carl,” and § 8.3

“make[s] Jailer Carl chargeable for SHP liability arising from his operational obligations and,



                                                10
No. 17-6415
Russell Pope v. Terry Carl


conversely, SHP chargeable for Jailer Carl’s liability arising from SHP’s contractual obligations.”

Appellee Br. at 8. This is not quite right. Section 8.2 allows SHP to be joined as a party defendant

only if a suit brought against Carl “contain[s] any allegations concerning SHP’s medical care of

inmates and the performance of SHP’s employees, agents, subcontractors or assignees,” which

Pope’s suit does not. See R. 20-2 (Health Servs. Agreement at 12) (Page ID #94). And § 8.3’s

cross-indemnification provisions expressly exclude the sorts of allegations at issue in this case:

“In no event shall this agreement to indemnify be construed to require SHP to indemnify the Jailer

. . . from the Jailer’s, the County’s, its agents’ and/or employees’ own negligence and/or their own

actions or inactions,” and “[i]n no event shall this agreement to indemnify be construed to require

the County to indemnify SHP, its agents and/or employees from SHP’s, its agents’ and/or

employees’ own negligence and/or their own actions or inactions.” Id. As Pope’s suit against Carl

concerns Carl’s “own actions or inactions,” the cross-indemnification provisions in § 8.3 are

wholly irrelevant. See id. Moreover, Carl has once again failed to provide a single case citation

to support his broad theory of affiliation. As we are also unaware of any Kentucky or Sixth Circuit

cases holding that one entity is “affiliated” with the employee of another entity based on cross-

indemnification and joinder agreements between the two entities, we decline to endorse Carl’s

unusual interpretation of that term.

                                          III. CONCLUSION

       The district court erred in granting summary judgment to Carl on the ground that Pope

waived his claims against Carl by signing the Release Agreement with SHP. Because the district



                                                11
No. 17-6415
Russell Pope v. Terry Carl


court did not address the parties’ other arguments in favor of and against summary judgment, we

leave it to the district court to resolve those issues in the first instance. See Stanek v. Greco, 323

F.3d 476, 480 (6th Cir. 2003). We therefore REVERSE and REMAND for further proceedings

consistent with this opinion.




                                                 12
