FCPS Response

Filed 23-CI-00597 03/23/2023 Vincent Riggs, Fayette Circuit Clerk
NOT ORIGINAL
DOCUMENT
03/27/2023 12:45:21
PM COMMONWEALTH OF KENTUCKY
FAYETTE CIRCUIT COURT
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DIVISION VII
CIVIL ACTION NO. 23-CI-00597
ELECTRONICALLY FILED
MARLON BALL PLAINTIFF
V.
FAYETTE COUNTY BOARD OF EDUCATION,

ET AL. DEFENDANTS
ANSWER
Defendants, Fayette County Board of Education, Demetrus Liggins, James McMillin, and
Lisa Deffendall, in their official and individual capacities, file this Answer, through counsel, to
Plaintiff Marlon Ball’s Amended Complaint.1
FIRST DEFENSE
Plaintiff’s Amended Complaint fails to state a claim on which relief can be granted and
should be dismissed in its entirety, with prejudice.
SECOND DEFENSE
With respect to the specific allegations in Plaintiff’s original Complaint, Defendants state
as follows2:
1
Plaintiff filed an Amended Complaint before Defendants filed an answer to the original Complaint. The Amended
Complaint did not restate all allegations from the original Complaint but instead incorporated those allegations by
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reference. As a result, for clarity, Defendants will address first the allegations in the Complaint, then the allegations
in the Amended Complaint.
2
Plaintiff’s Introductory Paragraph in the Complaint does not require a factual response. To the extent a response is
required, Defendants admit the Complaint purports to name the Fayette County Board of Education and to name Dr.
Liggins, Dr. McMillin, and Ms. Deffendall in their official and individual capacities and denies the remaining
allegations in the introductory paragraph.
1
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03/27/2023 12:45:21
PM 1. Defendants are without sufficient knowledge or information to form a belief as to
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the truth or falsity of the allegations in numerical paragraph 1 and therefore deny those
allegations.
2. As to the allegations in numerical paragraph 2 of the Complaint, Defendants
admit Plaintiff was recruited for and interviewed for the principal position for the
Lexington Traditional Magnet School on May 16, 2022. Defendants are without
sufficient knowledge or information to form a belief as to the truth or falsity of whether
Plaintiff “understood that once he was done interviewing for Dunbar, he would then be
able to assume the principalship at Lexington Traditional Magnet School” and therefore
deny that allegation. Defendants deny all remaining allegations in numerical paragraph 2
of the Complaint.
3. Defendants deny the allegations in numerical paragraph 3 of the Complaint.
admit Plaintiff was hired as the principal of Dunbar High School and deny all the
remaining allegations in numerical paragraph 4 of the Complaint.
admit Dr. McMillin raised a concern with Plaintiff that Plaintiff had identified student
information about students from Plaintiff’s prior school district during Plaintiff’s
application and interview process in a manner that did not comply with FERPA.
Defendants deny all remaining allegations in numerical paragraph 5 of the Complaint.

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admit Plaintiff was hired by the Dunbar SBDM but deny that occurred on June 2, 2022.
2
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PM 8. Defendants deny the allegations in numerical paragraph 8 of the Complaint.
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12. Defendants admit the allegations in numerical paragraph 12 of the Complaint.
admit Defendant Deffendall issued a statement on behalf of Fayette County Public
Schools. Defendant Deffendall’s written statement speaks for itself and Defendants deny
Plaintiff’s characterization of that statement. Defendants deny all remaining allegations in
numerical paragraph 14 of the Complaint.
state that any statements to the media speak for themselves and Defendants deny
Plaintiff’s characterization of those statements. Defendants deny the remaining
allegations in numerical paragraph 15 of the Complaint.
admit that Plaintiff was placed on paid administrative leave beginning on November 2,
2022, and that Plaintiff remains on administrative leave at this time. Defendants deny the

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3
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03/27/2023 12:45:21
PM 20. Numerical paragraph 20 of the Complaint does not require a factual response. To
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the extent a response is required, Defendants adopt and incorporate their responses to
numerical paragraph 1-19 of the Complaint.
23. Numerical paragraph 23 of the Complaint does not require a factual response. To
admit Plaintiff entered into an employment contract for employment with Fayette County
Public Schools. The contract document speaks for itself and Defendants deny Plaintiff’s
characterization of it. Defendants admit that Plaintiff represented that he had thirteen
years of experience, and that Plaintiff was paid based on the eleven years of experience
because Plaintiff was unable to supply documentation to substantiate two of his years of
teaching experience. Defendants admit FCPS’s Chief of Human Resources and Dr.
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McMillin were temporarily placed on administrative leave pending an investigation
related to an employee compensation matter and state both individuals were reinstated
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PM after the conclusion of that investigation found no wrongdoing. Defendants deny all
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37. Defendants deny the allegations in numerical paragraph 37 of the Complaint and
deny Plaintiff is entitled to punitive damages.
38. Plaintiff’s allegations regarding “Causation and Damages” do not require a factual
response. To the extent a response is required Defendants deny the allegations in the
“Causation and Damages” section of Plaintiff’s Complaint.

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5
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DOCUMENT
03/27/2023 12:45:21
PM 39. Plaintiff’s prayer for relief does not require a factual response. To the extent a
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response is required, Defendants deny the allegations in Plaintiff’s prayer for relief and
deny Plaintiff is entitled to any relief from Defendants.
40. Defendants deny all other allegations in the Complaint not specifically admitted
in this Answer.
THIRD DEFENSE
With respect to the specific allegations in Plaintiff’s Amended Complaint, Defendants
state as follows:
1. As to the allegations in numerical paragraph 1 of the Amended Complaint,
Defendants admit that Plaintiff was placed on paid administrative leave and that
Plaintiff’s paid administrative leave was extended. Defendants deny all the remaining
allegations in numerical paragraph 1 of the Amended Complaint.
2. Defendants deny the allegations in numerical paragraph 2 of the Amended
Complaint.
3. Numerical paragraph 3 of the Amended Complaint does not require a factual
response. To the extent a response is required, Defendants adopt and incorporate their
responses to numerical paragraphs 1–2 of the Amended Complaint.
4. Defendants deny the allegations in numerical paragraph 4 of the Amended
Complaint.
5. Numerical paragraph 5 of the Amended Complaint does not require a factual
response. To the extent a response is required, Defendants adopt and incorporate their
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responses to numerical paragraphs 1–4 of the Amended Complaint.
6
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PM 6. Plaintiff’s remaining allegations regarding “Causation and Damages” in Count III
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of the Amended Complaint do not require a factual response. To the extent a response is
required Defendants deny the allegations in the “Causation and Damages” section of
Plaintiff’s Complaint, including paragraph 6 of the Amended Complaint.
7. Plaintiff’s prayer for relief in the Amended Complaint does not require a factual
response. To the extent a response is required, Defendants deny the allegations in
Plaintiff’s prayer for relief and deny Plaintiff is entitled to any relief from Defendants.
8. Because Plaintiff realleges and incorporates his allegations from his original
Complaint, Defendants incorporate their answers to the original Complaint identified
above in Defendants’ Second Defense.
9. Defendants deny all other allegations in the Amended Complaint not specifically
admitted in this answer.
FOURTH DEFENSE
Defendants are entitled to all of the rights, privileges and immunities of the
Commonwealth of Kentucky and its agents and employees, including, but not limited to, the
protections afforded by Section 231 of the Kentucky Constitution, and the principles of
sovereign, governmental, qualified, qualified official, and/or official immunity. Plaintiff’s claims
should be dismissed in whole or in part to the extent they are barred by such privileges and
immunities.
FIFTH DEFENSE
Defendant at all times acted reasonably, in good faith, and in accordance with all
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applicable statutes, regulations, ordinances, and other applicable law, which bars Plaintiff’s
claims in whole or in part.
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PM SIXTH DEFENSE
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Any damages and/or adverse job actions alleged to have been suffered by the Plaintiff,
which are denied, were proximately and solely caused by the Plaintiff's own conduct, including
but not limited to Plaintiff's work performance, his own conduct, and/or failure to perform in
good faith.
SEVENTH DEFENSE
All decisions regarding Plaintiff’s employment were made in good faith and based upon
legitimate, non-retaliatory reasons and the exercise of professional judgment. None of the actions
or omissions alleged in Plaintiff’s complaint, if any, were motivated or based, in whole or in part,
on any alleged retaliatory reasons or alleged protected activities, nor any considerations related
to any of the above, but were in fact based upon the legitimate exercise of professional duties,
rights, and responsibilities of FCPS administrators including but not limited to the exercise of
professional discretion in evaluating and/or addressing Plaintiff’s performance and conduct.
EIGHTH DEFENSE
Plaintiff’s claims may be barred in whole or in part to the extent he has failed to mitigate
any and all of his alleged damages or has aggravated the same by his own actions or inactions.
NINTH DEFENSE
Plaintiff’s actions are not protected activities under the law, which acts as a complete or
partial bar to Plaintiff’s complaint.
TENTH DEFENSE
Defendants cannot be held vicariously liable for the actions, omissions, or statements of
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others, or for any things said or done outside their presence.
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03/27/2023 12:45:21
PM ELEVENTH DEFENSE
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Plaintiff’s claim for attorney fees is barred in whole or in part by applicable law, which
provides each party is responsible for their own attorney fees and by sovereign and/or
governmental immunity.
TWELFTH DEFENSE
Defendants rely upon the defenses of truth, substantial truth to any statements of fact
alleged to have been made regarding Plaintiff.
THIRTEENTH DEFENSE
Any statements of fact allegedly made about Plaintiff, when taken in the context they
were actually made, were not defamatory, slanderous, or libelous, and Defendants rely upon the
same as a bar, in whole or in part, to Plaintiff’s claims, and further state any out of context or
otherwise incomplete presentations of alleged statements attributed to Defendants cannot serve
as a basis for a finding of liability against Defendants in this case.
FOURTEENTH DEFENSE
Any communications by Defendants concerning the Plaintiff are protected by the
doctrine of qualified and/or absolute privilege, including but not limited to the privilege
applicable to communications made for the purpose of furtherance of FCPS business and/or in
the context of the employment relationship, and Defendants rely upon the doctrine of qualified
and/or absolute privilege as a bar to Plaintiff's claims.
FIFTEENTH DEFENSE
Plaintiff has suffered no damage or injury to his reputation as a result of any alleged
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statements by Defendants which bars Plaintiff's claims.
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PM SIXTEENTH DEFENSE
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Plaintiff’s recovery, if any, is limited to recovery of actual damages, and Plaintiff’s claim
for punitive damages is barred by operation of KRS 411.184 and other applicable law as well as
that punitive damages are not recoverable for Plaintiff’s claims under KRS Chapter 344.
In addition, at all times relevant to this case, the actions of the Defendants were
reasonable, proper, legal, without wrongful intent, and without malice, which bars Plaintiff’s
claims for punitive damages. The Defendants also assert the following affirmative defenses to
Plaintiff’s claims for punitive damages:
(a) Plaintiff’s claim for punitive damages pursuant to KRS 411.184, as modified by the
Supreme Court of Kentucky in Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998), against the
Defendants cannot be sustained, because an award of punitive damages without proof of every
element beyond a reasonable doubt would violate the Defendants’ due process rights under
Section Two of the Kentucky Constitution and the Fourteenth Amendment to the United States
Constitution.
(b) Alternatively, unless the Defendants’ liability for punitive damages and the
appropriate amount of punitive damages are required to be established by clear and convincing
evidence, any award of punitive damages would violate the Defendants’ due process rights,
which are guaranteed by Section Two of the Kentucky Constitution and the Fourteenth
Amendment to the United States Constitution.
(c) Plaintiff’s claim for punitive damages against the Defendants cannot be sustained,
because any award of punitive damages without bifurcating the trial of all punitive damages
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issues would violate the Defendants’ due process rights, which are guaranteed by Section Two of
the Kentucky Constitution and the Fourteenth Amendment to the United States Constitution.
10
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03/27/2023 12:45:21
PM (d) Plaintiff’s claim for punitive damages against the Defendants cannot be sustained,
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because an award of punitive damages subject to no predetermined limit, such as a maximum
multiple of compensatory damages or a maximum amount on the amount of punitive damages
that a jury may impose, would violate the Defendants’ due process rights, which are guaranteed
by Section Two of the Kentucky Constitution and the Fourteenth Amendment to the United
States Constitution.
(e) Plaintiff’s claim for punitive damages against the Defendants cannot be sustained,
because an award of punitive damages by a jury that (1) is not provided a standard of sufficient
clarity for determining the appropriateness, or the appropriate size, of a punitive damages award,
(2) is not instructed on the limits on punitive damages imposed by the applicable principles of
deterrence and punishment, (3) is not expressly prohibited from awarding punitive damages, in
whole or in part, on the basis of invidiously discriminatory characteristics, including FCPS’s
corporate status, (4) is permitted to award punitive damages under a standard for determining
liability for punitive damages that is vague and arbitrary and does not define with sufficient
clarity the conduct or mental state that makes punitive damages permissible and (5) is not subject
to judicial review on the basis of objective standards, would violate the Defendants’ due process
and equal protection rights guaranteed by Sections 2, 3, 13 and 17 of the Kentucky Constitution
and the Fourteenth Amendment to the United States Constitution and the double jeopardy
clauses of the Fifth Amendment, as incorporated into the Fourteenth Amendment.
(f) Plaintiff’s claim for punitive damages against the Defendants cannot be sustained,
because an award of punitive damages for the purpose of compensating Plaintiff for elements of
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damages not otherwise recognized by law would violate the Defendants’ due process rights,
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PM which are guaranteed by Section 2 of the Kentucky Constitution and the Fourteenth Amendment
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to the United States Constitution.
(g) Plaintiff’s claim for punitive damages cannot be sustained, because an award of
punitive damages without the same protections that are accorded to all criminal defendants,
including protection against unreasonable searches and seizures, double jeopardy and self-
incrimination and the rights to confront adverse witnesses, a speedy trial and the effective
assistance of counsel would violate the Defendants’ rights under Sections 2, 10, 11, 13 and 14 of
the Kentucky Constitution and the Fourteenth Amendment to the United States Constitution and
the Fourth, Fifth, and Sixth Amendments as incorporated into the Fourteenth Amendment.
(h) Any award of punitive damages based on anything other than the Defendants’
conduct in connection with the alleged incident that is the subject of this lawsuit would violate
Sections 2 and 13 of the Kentucky Constitution and the due process clause of the Fourteenth
Amendment to the United States Constitution and the double jeopardy clause of the Fifth
Amendment as incorporated into the Fourteenth Amendment because any other judgment for
punitive damages in this case cannot protect the Defendants against impermissible multiple
punishment for the same wrong.
(i) Alternatively, the Defendants rely on KRS 411.184, and the United States Supreme
Court decision of State Farm v. Campbell, 538 U.S. 408 (2003), as a bar to Plaintiff’s punitive
damages claims.
SEVENTEENTH DEFENSE
Plaintiff’s claims are barred in whole or in part because he did not participate in an
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investigation, proceeding, or hearing within the meaning of KRS Chapter 344.
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PM EIGHTEENTH DEFENSE
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Any statements by Defendants that constitute statements of pure opinion or fair comment
are not actionable and/or are protected by the United States and/or Kentucky Constitutions.
NINTEENTH DEFENSE
Plaintiff’s complaint is barred in whole or in part to the extent it fails to sufficiently plead
or identify special damages.
TWENTIETH DEFENSE
Any damages suffered by Plaintiff, which are denied, are barred in whole or in part to the
extent they were proximately and solely caused by the actions of other parties, if anyone, over
which Defendants had no control.
TWENTY-FIRST DEFENSE
Defendants provisionally plead the affirmative defenses of Kentucky Rules of Civil
Procedure 8 and 12, as if fully restated herein, to be determined during discovery.
TWENTY-SECOND DEFENSE
Defendants reserve the right to raise additional defenses that become known during
discovery.
Respectfully submitted,
/s/ Joshua M. Salsburey

Joshua M. Salsburey
Donald C. Morgan
Sturgill, Turner, Barker & Moloney, PLLC
333 West Vine Street, Suite 1500
Lexington, KY 40507
Telephone No: (859) 255-8581
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Facsimile No.: (859) 231-0851

[email protected]
[email protected]
COUNSEL FOR DEFENDANTS
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PM CERTIFICATE OF SERVICE
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I certify that on March 23, 2023, the foregoing document was electronically filed with the
Clerk of this Court using the KY eCourts eFiling system, which will send a notice of electronic
filing, if applicable, to the following, and that the foregoing was served by U.S. Mail, first class
postage prepaid to the following:
J. Dale Golden
Perry L. Greer
Kennedy D. Slusher
Golden Law Office
771 Corporate Drive, Suite 800
Lexington, Kentucky 40503
Telephone: (859) 469-5000
Facsimile: (859) 469-5001
[email protected]
[email protected]
[email protected]
COUNSEL FOR PLAINTIFF
/s/ Joshua M. Salsburey

COUNSEL FOR DEFENDANTS
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Filed 23-CI-00597 03/23/2023 Vincent Riggs, Fayette Circuit Clerk

MARLON BALL PLAINTIFF

FAYETTE COUNTY BOARD OF EDUCATION,

Plaintiff Marlon Ball’s Amended Complaint.1

should be dismissed in its entirety, with prejudice.

2. As to the allegations in numerical paragraph 2 of the Complaint, Defendants

sufficient knowledge or information to form a belief as to the truth or falsity of whether

3. Defendants deny the allegations in numerical paragraph 3 of the Complaint.

4. As to the allegations in numerical paragraph 4 of the Complaint, Defendants

remaining allegations in numerical paragraph 4 of the Complaint.

5. As to the allegations in numerical paragraph 5 of the Complaint, Defendants

Defendants deny all remaining allegations in numerical paragraph 5 of the Complaint.

6. As to the allegations in numerical paragraph 6 of the Complaint, Defendants

7. Defendants deny the allegations in numerical paragraph 7 of the Complaint.

10. Defendants deny the allegations in numerical paragraph 10 of the Complaint.

11. Defendants deny the allegations in numerical paragraph 11 of the Complaint.

12. Defendants admit the allegations in numerical paragraph 12 of the Complaint.

13. Defendants deny the allegations in numerical paragraph 13 of the Complaint.

14. As to the allegations in numerical paragraph 14 of the Complaint, Defendants

admit Defendant Deffendall issued a statement on behalf of Fayette County Public

Plaintiff’s characterization of that statement. Defendants deny all remaining allegations in

numerical paragraph 14 of the Complaint.

15. As to the allegations in numerical paragraph 15 of the Complaint, Defendants

Plaintiff’s characterization of those statements. Defendants deny the remaining

allegations in numerical paragraph 15 of the Complaint.

16. Defendants deny the allegations in numerical paragraph 16 of the Complaint.

17. As to the allegations in numerical paragraph 17 of the Complaint, Defendants

remaining allegations in numerical paragraph 17 of the Complaint.

18. Defendants deny the allegations in numerical paragraph 18 of the Complaint.

19. Defendants deny the allegations in numerical paragraph 19 of the Complaint.

numerical paragraph 1-19 of the Complaint.

21. Defendants deny the allegations in numerical paragraph 21 of the Complaint.

22. Defendants deny the allegations in numerical paragraph 22 of the Complaint.

numerical paragraph 1-22 of the Complaint.

24. Defendants deny the allegations in numerical paragraph 24 of the Complaint.

25. Defendants deny the allegations in numerical paragraph 25 of the Complaint.

26. Defendants deny the allegations in numerical paragraph 26 of the Complaint.

numerical paragraph 1-26 of the Complaint.

28. As to the allegations in numerical paragraph 28 of the Complaint, Defendants

McMillin were temporarily placed on administrative leave pending an investigation

29. Defendants deny the allegations in numerical paragraph 29 of the Complaint.

numerical paragraph 1-29 of the Complaint.

31. Defendants deny the allegations in numerical paragraph 31 of the Complaint.

32. Defendants deny the allegations in numerical paragraph 32 of the Complaint.

numerical paragraph 1-32 of the Complaint.

34. Defendants deny the allegations in numerical paragraph 34 of the Complaint.

35. Defendants deny the allegations in numerical paragraph 35 of the Complaint.

numerical paragraph 1-35 of the Complaint.

deny Plaintiff is entitled to punitive damages.

“Causation and Damages” section of Plaintiff’s Complaint.

deny Plaintiff is entitled to any relief from Defendants.

With respect to the specific allegations in Plaintiff’s Amended Complaint, Defendants

1. As to the allegations in numerical paragraph 1 of the Amended Complaint,

allegations in numerical paragraph 1 of the Amended Complaint.

2. Defendants deny the allegations in numerical paragraph 2 of the Amended

3. Numerical paragraph 3 of the Amended Complaint does not require a factual

responses to numerical paragraphs 1–2 of the Amended Complaint.

4. Defendants deny the allegations in numerical paragraph 4 of the Amended

5. Numerical paragraph 5 of the Amended Complaint does not require a factual