Curtis Carter v. Lexington Fayette Urban County Government ( 2022 )

RENDERED: DECEMBER 16, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-1818-MR
CURTIS CARTER APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 11-CI-01699
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT APPELLEE
AND
NO. 2018-CA-1819-MR
ANN RATLIFF APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 11-CI-01699
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT APPELLEE
AND
NO. 2018-CA-1820-MR
LARRY PRICE APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 11-CI-01699
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT APPELLEE
AND
NO. 2018-CA-1821-MR
DARRYL STEWART APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 11-CI-01699
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT APPELLEE
AND
NO. 2018-CA-1822-MR
JACK BARNETT APPELLANT
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APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 11-CI-01699
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT APPELLEE
AND
NO. 2018-CA-1823-MR
JOHN BLEDSOE APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 11-CI-01699
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT APPELLEE
AND
NO. 2018-CA-1824-MR
ALEX HICKS APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 11-CI-01699
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LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT APPELLEE
AND
NO. 2018-CA-1825-MR
GENE L. BARRELL, JR. APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 11-CI-01699
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT APPELLEE
AND
NO. 2018-CA-1826-MR
OMER COWHERD APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 11-CI-01699
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT APPELLEE
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AND
NO. 2018-CA-1827-MR
BRENT ROSS APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 11-CI-01699
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.
CALDWELL, JUDGE: These appeals are from summary judgments granted on all
of Appellants’ employment discrimination and related claims against Lexington-
Fayette Urban County Government (“LFUCG”). Despite the trial court’s
commendable efforts to analyze the multitude of claims in detail in well-written
opinions, we are compelled to reverse and remand.
Appellants are current or former employees of LFUCG’s division of
Streets, Roads and Forestry (“SRF”). In 2011, Appellants filed a joint complaint
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alleging discrimination on the basis of race, sex, and age; retaliation for reporting
discrimination or otherwise exercising rights under the Kentucky Civil Rights Act
(“KCRA”); and reprisal for reporting other types of wrongdoing in violation of the
Kentucky Whistleblowers Act (“KWA”). Following discovery and extensive
briefing, the trial court granted LFUCG’s motions for summary judgment in its
favor on all Appellants’ claims.
STANDARD OF REVIEW
We review the grant of summary judgment de novo. Viewing the
evidence “to the benefit of the nonmoving party with all ambiguities resolved in its
favor[,]” we consider whether the trial court erred in concluding no genuine issues
of material fact existed and the moving party (LFUCG) was entitled to judgment as
a matter of law. The Board of Regents of Northern Kentucky University v.
Weickgenannt, 485 S.W.3d 299, 306-07 (Ky. 2016).
OVERVIEW OF APPLICABLE LAW
In determining whether LFUCG was entitled to judgment as a matter
of law, we apply authority construing the KCRA and the KWA.
The KCRA prohibits employment discrimination based on one’s race,
sex, or age over 40. KRS1 344.040(1). It also prohibits retaliation for reporting
1
Kentucky Revised Statutes.
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discrimination or otherwise exercising one’s civil rights under the act. KRS
344.280.
The KWA prohibits state government employers’ reprisals for
employees’ good-faith reporting or disclosing violations of law, waste and fraud,
or mismanagement. KRS 61.102. The KWA also provides for a civil right of
action to address violations of KRS 61.102. KRS 61.103(2).
Generally, Kentucky precedent recognizes that rights afforded under
the KCRA and the KWA are similar to those in federal statutes. So, Kentucky
courts follow federal case precedent in these areas. See, e.g., Weickgenannt, 485
S.W.3d at 306; Davidson v. Commonwealth, Dep’t of Military Affairs, 152 S.W.3d
247, 255 (Ky. App. 2004). But before we address the merits of Appellants’ claims
or principles about the employer’s liability for individuals’ actions, we first
consider whether disciplinary proceedings before the LFUCG’s Civil Service
Commission (“Commission”) barred further litigation of any claims or issues in
court.
I. Effect of Civil Service Commission Disciplinary Proceedings on Appellants’
Claims – Issues of Res Judicata and Civil Service Commission’s Authority
to Hear KCRA Claims
Before Appellants filed suit, the Commission had held hearings about
whether several Appellants should be subjected to discipline, including suspension
or termination. None of these Appellants alleged discrimination or retaliation in
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the Commission proceedings. Since these Appellants failed to allege
discrimination or retaliation in Commission proceedings, LFUCG argued their
discrimination and retaliation claims were barred by res judicata.
The trial court concluded that res judicata did not bar the claims of
Brent Ross and Omer Cowherd, who had been reinstated to their positions after
Commission proceedings. But it concluded res judicata barred some claims
asserted by Appellants adversely affected by Commission proceedings – namely,
Curtis Carter, Larry Price, and John Bledsoe2 – due to their failure to allege
discrimination or retaliation in the Commission proceedings.3 In support for these
conclusions, the trial court relied on Welch v. Johnson, 907 F.2d 714 (7th Cir.
1990), which we discuss later.
Within its discussion of res judicata, the trial court opined the
Commission had the authority to consider allegations of discrimination or
retaliation as objections or defenses in disciplinary proceedings. It rejected
Appellants’ arguments that the Commission lacked jurisdiction or authority to hear
claims of discrimination or retaliation under the KCRA.
2
Carter had appealed a suspension to the Commission, which affirmed the suspension. Price and
Bledsoe were ultimately terminated as the Commission found they had been advised of their
options after exceeding modified light duty limits but failed to exercise any of these options.
3
Despite concluding that at least some claims were barred by res judicata, res judicata was not
the sole basis for the trial court’s granting summary judgment on any Appellant’s claims and it
addressed the merits of all claims.
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I. A. Civil Service Commission Authority Regarding “Claims” of
Discrimination or Retaliation
The trial court held the Commission had the jurisdiction or authority
to hear discrimination or retaliation “claims” as an administrative agency “acting in
a judicial capacity[,]” citing Godbey v. University Hospital of Albert B. Chandler
Medical Center, Inc., 975 S.W.2d 104, 105 (Ky. App. 1998). (Bledsoe/Price
Summary Judgment, p. 4; Ross/Cowherd Summary Judgment, p. 5.) Though the
Commission acts in a quasi-judicial manner, we disagree with the trial court’s
reading of Godbey to mean LFUCG’s Commission has authority to decide claims
or causes of action for discrimination and retaliation under KRS Chapter 344.
Godbey recognizes that an administrative agency’s quasi-judicial
decisions may preclude further litigation of a particular issue actually decided by
the administrative agency. Since the fact-finder in a Workers’ Compensation
proceeding found the worker’s injury was not caused by workplace exposure to
chemicals, the Godbey Court determined the parties could not re-litigate this same
issue in a tort action in court. 975 S.W.2d at 105-06.
But the Godbey opinion does not address any argument that the
administrative agency lacked authority or jurisdiction to decide issues about injury
causation. And nothing in Godbey specifically relates to the authority of LFUCG’s
Commission to hear issues of discrimination or retaliation under the KCRA.
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Although administrative agencies often can act in a quasi-judicial
capacity, this power is limited by legislation. Department of Natural Resources
and Environmental Protection v. Stearns Coal & Lumber Co., 563 S.W.2d 471,
473 (Ky. 1978). Appellants argue that the Commission is limited to considering
specific issues set forth in statutes and ordinances.
As noted by Appellants Ross and Cowherd, Section 21-44(c) of
LFUCG’s Charter4 provides that in Commission disciplinary hearings, “the trial
shall be limited to the issues presented by the written charges[.]” See also KRS
67A.280(3). Appellants also argue that, unlike the Lexington Human Rights
Commission, the Civil Service Commission lacks express written authority to hear
claims of discrimination and retaliation under the KCRA, citing KRS 344.300 to
KRS 344.320 and generally to LFUCG’s Code of Ordinances.5
4
Chapter 21 of LFUCG’s Charter provides a Comprehensive Plan for Classified Civil Service
System, containing Section 21-44 cited in Ross and Cowherd’s Appellant briefs and titled as
referring to: “Dismissal and other punishments; causes, charges, proceedings.” The parties
have not discussed in their briefs any other LFUCG legislation about the respective powers and
duties of LFUCG’s Civil Service Commission and the Lexington Human Rights Commission.
5
Albeit in an unpublished opinion, this Court previously determined that no statute or case law
specifically required the Commission to consider alleged retaliation or discrimination as defenses
in disciplinary proceedings and affirmed a Commission decision despite its refusal to hear
evidence relating to discrimination or retaliation. But we did not discuss whether any ordinance
or LFUCG Charter provision affected whether the Commission had to or might be permitted to
consider such allegations.
In Brown v. Lexington-Fayette Urban County Government Civil Service Commission,
No. 2011-CA-000248-MR, 2012 WL 752041 (Ky. App. Mar. 9, 2012), the Commission had
refused to hear evidence about discrimination or retaliation in a disciplinary hearing. We upheld
the Fayette Circuit Court’s affirmance of the employee’s termination upon judicial review –
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In sum, neither party has cited any binding authority which
specifically requires that allegations of discrimination or retaliation have to be
heard in proceedings before the Commission.6 And the Commission has at least on
occasion declined to hear evidence about discrimination or retaliation in
disciplinary proceedings – based on evidence presented by Appellants about a non-
party employee’s proceedings before the Commission as well as unpublished case
law.7
In sum, while perhaps LFUCG’s Commission may consider issues
about alleged discrimination or retaliation as defenses in deciding whether
despite the employee’s arguments of error based on the Commission’s refusal to hear evidence
about discrimination or retaliation or hostile work environment. We explained that the
Commission’s role was to determine if the rules of employment were broken, and that the
Commission’s findings on this matter were supported by substantial evidence. Id. at *2-3. We
further opined:
the hearing before the [Commission] is limited to the issues raised by the written
charges, which in this case consisted of five counts. KRS 67A.280(3). While
evidence of discriminatory or retaliatory conduct of company officials could be
considered by the [Commission] in its determination of whether Brown violated
employment rules or procedures, there exists no statutory or case authority
requiring the same. And, any allegations of discrimination and retaliation
certainly stand as independent grounds for a wrongful discharge or civil rights
action in state or federal court. To the extent these claims do not address the
merits of the charges brought against Brown, neither the [Commission] nor the
circuit court committed reversible error by failing to consider this alleged
evidence.
Id. at *3. The Kentucky Supreme Court denied discretionary review of our decision in Brown.
6
Illinois authority regarding the Illinois Civil Service Commission’s authority to consider issues
of discrimination and retaliation cited in Welch, 907 F.2d at 723-25, is not binding here.
7
See Brown, 2012 WL 752041.
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discipline may properly be imposed, it is not required to do so. And no one has
cited any statute, ordinance, regulation, or other authority recognizing that
LFUCG’s Commission has the jurisdiction or authority to decide formal
complaints or charges of discrimination or retaliation under the KCRA.
In contrast, courts and designated governmental agencies such as state
and local human rights commissions have authority to hear complaints or charges
of discrimination or other civil rights violations under the KCRA. See KRS
344.200 (complaints of unlawful practices under the KCRA such as discrimination
and retaliation may be filed with Kentucky Human Rights Commission); KRS
344.300-KRS 344.320 (regarding duties and responsibilities of local human rights
commissions, including hearing violations of ordinances against discrimination);
KRS 344.450 (civil cause of action in circuit court for violations of KCRA).
Thus, though LFUCG’s Commission is not expressly prohibited from
considering allegations of discrimination or retaliation as objections or defenses in
disciplinary proceedings, the Commission has not expressly been granted the
authority to hear claims – in the sense of formal requests for relief – under the
KCRA and instead such claims must be litigated before other entities.
I. B. Res Judicata, Claim Preclusion, and Issue Preclusion
In holding that Bledsoe and Price’s claims were barred by res judicata
since they failed to allege discrimination or retaliation as defenses in the
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Commission proceedings, the trial court cited in support a recent Fayette Circuit
Court opinion (later vacated by this Court on other grounds)8 and Welch, 907 F.2d
at 714. Welch involved application of Illinois law regarding res judicata. Id. at
719-20. The Seventh Circuit concluded that res judicata barred plaintiff’s
discrimination claims because she failed to assert discrimination in challenging her
termination before the Illinois Civil Service Commission and in state court
proceedings. Id.Naturally, Illinois law has no application here so we must consider
binding Kentucky precedent concerning res judicata. Similar to Illinois authority
cited in Welch, some Kentucky precedent indicates that res judicata bars further re-
litigation not just of issues actually decided but also of issues which could have
been asserted in a prior proceeding but were not. See Combs v. Prestonsburg
Water Co., 260 Ky. 169, 84 S.W.2d 15, 18 (1935).9
8
The trial court cited a recent opinion by a different judge on the Fayette Circuit Court in Ellis v.
LFUCG, Civil Action No. 97-CI-01882, on page 5 of the Ross/Cowherd summary judgment
entered in February 2017. In 2019, this Court vacated the Ellis summary judgment (No. 97-CI-
01882). See Ellis v. Lexington-Fayette Urban County Government, No. 2016-CA-000566-MR,
2019 WL 1224566 (Ky. App. Mar. 15, 2019). This Court concluded that the Ellis trial judge had
improperly engaged in ex parte communications with LFUCG’s counsel and entered LFUCG’s
proposed opinions and orders granting it summary judgment on plaintiffs’ KCRA claims prior to
a hearing on the motion. Id. at *3. Based on the record, this Court also found no reason to
believe that the summary judgment granted was the product of the Ellis trial court’s own
deliberations rather than that of LFUCG. Id. at *4.
9
As we recently discussed, pre-1970 references to res judicata in Kentucky case typically refer
only to claim preclusion and different requirements for claim preclusion and issue preclusion are
set forth in later precedent. See Estate of Reeder v. Ashland Police Dep’t, 588 S.W.3d 160, 165
(Ky. App. 2019) (citing Sedley v. City of West Buechel, 461 S.W.2d 556, 559 (Ky. 1970)).
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But more recent precedent indicates if different claims are decided in
a prior proceeding, there is only a bar to re-litigating issues which were actually
decided in the prior proceeding. This precedent distinguishes between two
concepts often referred to as res judicata: claim preclusion and issue preclusion.
See Miller v. Administrative Office of Courts, 361 S.W.3d 867, 871-72 (Ky. 2011).
“Claim preclusion bars a party from relitigating a previously adjudicated cause of
action and entirely bars a new lawsuit on the same cause of action” but issue
preclusion only bars “the parties from relitigating any issue actually litigated and
finally decided in an earlier action.” Id. at 872 (emphasis added) (quoting Yeoman
v. Commonwealth, Health Policy Board, 983 S.W.2d 459, 464-65 (Ky. 1998)).
Issues about discrimination or retaliation were not actually litigated
before the Commission, even if it could have considered such issues. So, issue
preclusion is not the relevant doctrine to apply here. Instead, we must consider
whether claim preclusion applied here.
Obviously, claim preclusion depends on the same claim – or cause of
action – having been decided in the prior proceeding. See Miller, 361 S.W.3d at
872. The trial court perceived that the Commission could hear “claims” of
discrimination or retaliation as defenses in Commission proceedings.
If one defines a claim or cause of action as a basis to file a lawsuit or
other formal complaint requesting relief, no claim of violations of KRS Chapter
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344 in that sense was litigated before the Commission.10 But even assuming that
the Commission heard the same claims as those presented to the trial court,
litigation about issues of discrimination or retaliation is barred only if these issues
could have been heard by the Commission. See Combs, 84 S.W.2d at 18.
Even if the discipline imposed by the Commission must stand even
after those decisions were either affirmed upon judicial review, or judicial review
of those decisions was not sought,11 many of Appellants’ claims – including those
of Carter, Bledsoe, and Price – concern other acts not related to disciplinary
matters. For example, Appellants alleged, among other things, harassing acts not
related to discipline which contributed to creating a racially hostile work
environment. Therefore, prior Commission proceedings did not bar further
litigation of Appellants’ claims. In sum, under these facts, Appellants’ failure to
raise allegations of discrimination or retaliation as defenses before the Commission
does not bar them from bringing those claims in these judicial proceedings.
10
See definitions of claim and cause of action in BLACK’S LAW DICTIONARY (11th ed. 2019).
11
Though we do not view Welch as controlling on res judicata due to its dependence on Illinois
law, even Welch does not suggest that a disciplinary proceeding before the Illinois Civil Service
Commission barred further litigation of discrimination claims not related to those disciplinary
proceedings in court. See Welch, 907 F.2d at 722-23 (state court judgment affirming propriety of
discharge resulted in res judicata barring claims related to the discharge proceeding, but it did
not have res judicata effect on a separate failure to promote claim based on earlier events not
related to the discharge proceeding).
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II. Discrimination Claims
Next, we address Appellants’ discrimination claims, beginning with
claims of discrimination based on hostile work environment. Appellants challenge
the trial court’s granting LFUCG summary judgment on their claims of four types
of discrimination: a) hostile work environment based on race, b) hostile work
environment based on sex, c) gender-based discrimination relating to failure to
promote, and d) age discrimination relating to failure to promote.
II. A. Claims of Hostile Work Environment Based on Race
In early 2009, several African-American SRF employees (including
seven appellants) presented an informal document listing concerns, including
racism and verbal abuse. This document was presented to SRF management, to
other city officials, and eventually to LFUCG’s Human Resources (“HR”) office.
Appellants contend that LFUCG’s response was inadequate, that necessary
corrective action was not taken, and that discrimination continued, including racial
harassment.
II. A. 1. Employer Liability for Hostile Work Environment Based on Race
Before we address whether there is evidence of required elements of
hostile work environment, we consider under what circumstances an employer can
be held liable for individuals’ harassing acts. The Appellants alleged some racially
harassing acts by co-workers and other racially harassing acts by supervisors.
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Slightly different standards for employer liability apply to claims for hostile work
environment created by co-workers versus hostile work environment created by
supervisors. Clark v. United Parcel Service, Inc., 400 F.3d 341, 348 (6th Cir.
2005).
The employer’s vicarious liability is the rule rather than the exception
when a supervisor creates a hostile work environment – though without tangible
employment action, the employer may be able to establish an affirmative defense.
But a different standard applies for co-workers’ actions. In that instance, the
employer has to know or have reason to know of the harassment and fail to take
action to be held liable for a co-worker creating a hostile work environment. Id.See also Kirkwood v. Courier-Journal, 858 S.W.2d 194, 199 (Ky. App. 1993)
(“Sexual or racial harassment by a co-worker is not a violation of Title VII unless
the employer knew or should have known of the harassment and failed to take
action.”).
If a supervisor harasses an employee without tangible employment
action, the employer may escape vicarious liability by proving by a preponderance
of the evidence: “(a) that the employer exercised reasonable care to prevent and
correct promptly any sexually harassing behavior, and (b) that the plaintiff
employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.” Burlington
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Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 141 L. Ed. 2d 633(1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 141
L. Ed. 2d 662 (1998). This method of escaping vicarious liability is often referred
to as the “Ellerth/Faragher affirmative defense.” See, e.g., American General Life
& Acc. Ins. Co. v. Hall, 74 S.W.3d 688, 692 (Ky. 2002).
The trial court held that LFUCG could not be held liable for much of
the alleged racial harassment based on its determination that plaintiffs failed to
report harassment – despite LFUCG’s having an anti-harassment policy. But we
have long held that not formally reporting harassment may not excuse an employer
from liability for harassment when there is evidence that the plaintiffs informally
told supervisors about harassment by co-workers or that supervisors were among
the harassers. See Kirkwood, 858 S.W.2d at 199 (rejecting employer’s argument it
could not be held liable for conduct it characterized as unreported given plaintiff’s
testimony about informing supervisors of co-workers’ harassment and about
supervisors being among the harassers).
The trial court held that the informal memorandum by the seven
African-American Appellants here – which evidence shows was circulated to the
SRF director and deputy director as well as other LFUCG officials and eventually
HR – did not effectively report racial harassment. And the trial court held that the
memorandum’s reference to racism did not specifically report racial harassment.
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However, construing evidence in the light most favorable to Appellants, the
references to both racism and verbal abuse on the list of serious problems in SRF
could encompass the use of racial slurs, or other types of verbal harassment. Also,
according to Appellants’ deposition testimony, general claims of “racism” on the
informal written document were fleshed out as claims of racial harassment during
verbal communications with HR.
The trial court discounted Appellants’ assertions that they verbally
discussed incidents of racial harassment, including racial slurs, with HR based on
HR notes of interviews. The court relied on the fact that at the end of most sets of
HR notes was a signed statement by each appellant – on a separate page – stating
the “information contained in this interview” was true and accurate. (Record on
Appeal, “R.,” p. 899.) But this statement did not also recite that the notes
contained a complete listing of everything verbally discussed.
Furthermore, many Appellants testified they were asked to sign these
statements without being able to review HR’s notes. They believed they were just
signing to confirm that everything they orally said in interviews was true and
accurate. Though HR representatives may have disagreed with such assertions in
their testimony, this reflects factual disputes – not an impossibility that Appellants
could persuade a fact-finder they informally reported harassment to LFUCG.
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The trial court also rejected the plaintiffs’ claims that LFUCG
ineffectively responded to reports of racial harassment, since LFUCG conducted an
investigation and determined it could not substantiate many of the claims.
However, LFUCG’s internal determination of lack of substantiation is not
necessarily dispositive – especially given conflicts in the evidence and HR
representative Ashley Case’s testimony identifying some potential problems with
investigations. For example, she testified that if not corroborated by multiple other
employees, an employee’s allegation was previously considered unsubstantiated –
making it impossible for harassment directed solely at one person and not
witnessed by others to be substantiated.
Furthermore, an investigation by an employer does not always mean it
escapes liability for harassment if it investigates and finds allegations
unsubstantiated. The employer might be liable if the investigation was defective or
conducted in bad faith. See Forsythe v. Wayfair Inc., 27 F.4th 67, 74-75 (1st Cir.
2022) (though employer not subject to liability under facts of that case, noting it
was not the sort of case where the employer simply asked the accused about the
allegations and then blindly accepted his/her denials).
Viewing the evidence in the light most favorable to the non-moving
parties, we conclude the trial court’s determination that LFUCG could not properly
be held liable for any individual’s racially harassing conduct is error.
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II. A. 2. Requirement of Severe or Pervasive Conduct for Hostile Work
Environment Claims in Context of Alleged Racial Harassment
Our Supreme Court defined hostile work environment as meaning:
“the workplace is permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Ammerman v. Board of
Educ. of Nicholas County, 30 S.W.3d 793, 798 (Ky. 2000). See also Lumpkins ex
rel Lumpkins v. City of Louisville, 157 S.W.3d 601, 605 (Ky. 2005) (“hostile work
environment discrimination must be severe or pervasive and more than episodic”).
Obviously, severe or pervasive harassing conduct is a key element of hostile work
environment claims. Before addressing other elements of hostile work
environment claims, we consider recent federal precedent and long-standing
Kentucky state precedent on questions of severity or pervasiveness of harassment.
Ultimately, we conclude the trial court failed to follow precedent showing that a
supervisor’s calling an employee the N word is inherently serious conduct.
While the last couple of motions for summary judgment were
pending, and before final judgment was entered, the plaintiffs jointly filed a motion
for the trial court to supplement the record and to reconsider prior rulings in light
of Castleberry v. STI Group, 863 F.3d 259 (3d Cir. 2017) – attaching a hard copy
of this opinion to their motion. Appellants have argued that Castleberry made
clear they were not obliged to prove both severe and pervasive conduct to succeed
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on hostile work environment claims – but only severe or pervasive conduct. They
also cite Castleberry to argue that an isolated incident can be sufficient to create a
hostile working environment if extremely serious. See id. at 264-65. And they
argue that Castleberry demands that incidents involving the use of racial slurs,
such as the N word, must be regarded as extremely serious.
In Castleberry, the Third Circuit reversed the trial court’s granting of
a motion to dismiss for failure to state a claim. It held an alleged isolated incident,
by itself, consisting of a supervisor’s referring to plaintiffs as “N—ers,” coupled
with threats of termination, would amount to severe conduct which could create a
hostile work environment. Id. at 265.12 Appellants argued to the trial court that
each of them had been subjected to acts which exceeded the isolated incident in
Castleberry in terms of severity. The isolated incident in Castleberry involved a
supervisor’s telling the plaintiffs that if they had “N—er-rigged” a fence, they
would be fired. Id. at 262.
Although the trial court here noted it read Castleberry, it stated
Castleberry did not affect its rulings. It found Castleberry distinguishable because
12
Castleberry also held that plaintiffs’ allegations of sign-in sheets bearing racially
discriminatory statements on several occasions – as well as members of their race receiving more
menial and less complex job assignments than White employees – could possibly satisfy the
alternative requirement of pervasive conduct. Id. at 265-66. In short, it held that plaintiffs stated
a claim for racially hostile work environment based on either severe or pervasive conduct –
though it reserved questions of whether the allegations were true or whether the conduct could be
considered sufficiently pervasive to be resolved following discovery. Id. at 266.
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it found no indication in Castleberry that the employer conducted an investigation
– thus, perhaps alluding to considerations of whether the employer could be held
liable for individuals’ actions. Despite the trial court’s distinguishing Castleberry
on the basis of lack of employer investigation of harassment allegations,
Castleberry did not explicitly discuss whether there was any investigation or basis
for the employer to be held liable for individuals’ actions. Instead, it simply
assessed whether plaintiffs stated a claim for racially hostile work environment in
ruling on a motion to dismiss.
Appellants have argued the trial court erroneously interpreted
precedent as requiring that plaintiffs show severe and pervasive conduct to
establish a hostile work environment. Regardless of the holding of Castleberry,
Kentucky precedent already requires only severe or pervasive conduct as one
element of a hostile work environment. See Lumpkins, 157 S.W.3d at 605;
Ammerman, 30 S.W.3d at 798.
Though Kentucky courts may not yet have logically extended the
severe or pervasive conduct requirement to explicitly recognize that one isolated
incident could create a hostile work environment if sufficiently serious, some
federal courts have. For instance, Castleberry clearly indicates that one isolated
serious incident of harassing conduct – such as a supervisor’s using a racial slur
along with threats of termination – may be enough to create a hostile working
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environment. Similarly, a recent Fifth Circuit case held that a plaintiff’s complaint
alleging a single incident in which his supervisor referred to the plaintiff as a
“Lazy Monkey A— N—er” in the presence of other employees “states an
actionable claim of hostile work environment.” Woods v. Cantrell, 29 F.4th 284,
285 (5th Cir. 2022).13
Despite this recent federal precedent holding a hostile work
environment can be created by one isolated incident of a supervisor referring to an
employee as a N—er, prior precedent did not always reflect this view. See
Lumpkins, 157 S.W.3d at 607-08 (Cooper, J., dissenting) (claiming law is clear that
one isolated incident – even involving use of racial slurs such as “the N word” – is
not enough to create a hostile work environment and arguing jury may have
improperly based its verdict on one undisputed isolated incident). In fact, though
perhaps no binding Kentucky precedent directly states that one isolated incident
could never create a hostile work environment, our Supreme Court previously
appeared hesitant to recognize that a viable hostile work environment claim could
be based solely on one isolated incident. See Lumpkins, 157 S.W.3d 605-06
(noting employer argument that jury verdict for plaintiffs on racially hostile work
environment claim may be based on one isolated incident but affirming due to
evidence of multiple acts of harassment); Ammerman, 30 S.W.3d at 799 (noting
13
We recently granted Appellants’ motion to supplement their briefs with Woods v. Cantrell.
-24-
lack of authority that one isolated incident could create a sexually hostile work
environment).
Thus, we cannot simply follow Castleberry or Cantrell to declare that
one isolated incident may create a hostile work environment if sufficiently serious.
Instead, we must leave it to the Kentucky Supreme Court to address whether the
severe or pervasive conduct requirement can be logically extended to recognize
hostile work environments created by one isolated, extremely serious incident. See
SCR14 1.030(8)(a).
However, no Appellant claims hostile work environment based solely
on any one isolated incident. And we are mindful that in assessing whether a
hostile work environment exists, one must look at the totality of the circumstances
and must consider the combined effect of seemingly isolated incidents of
harassment. See Lumpkins, 157 S.W.3d at 605 (“Whether a work environment is
hostile is determined on the totality of the circumstances and juries should not be
encouraged to disaggregate individual circumstances.”).
Furthermore, the existence of a hostile work environment may depend
not on pervasive conduct but instead on severe conduct. And Castleberry and
Cantrell are also instructive on assessing the severity of conduct in a manner
consistent with Kentucky state precedent.
14
Kentucky Rules of Supreme Court.
-25-
Castleberry and Cantrell suggest that in assessing the severity of
alleged conduct, a supervisor’s referring to employees as N—ers strongly points
toward extremely serious conduct – which is consistent with Kentucky precedent
in our view. Though our Supreme Court did not explicitly discuss if use of the N
word was especially egregious in Lumpkins, it noted evidence of the direct
supervisor’s use of racial slurs and recognized the discrimination inherent in
referring to adult male African-Americans as “boys.” 157 S.W.3d at 606.
Our Supreme Court also noted that the employer objected to the
instructions given by the trial court on the basis that the jury might return a verdict
favorable to the plaintiffs based solely the undisputed “August 11th confrontation.”
This August 11th confrontation consisted of the plaintiffs’ direct supervisor yelling
at them, calling them “N—ers,” wrongfully accusing them of vandalism, and
telling them they were fired, in front of a large number of people at the pool where
they worked. Id. at 604. The Kentucky Supreme Court did not expressly discuss
whether this one incident by itself could be considered extremely serious or
forthrightly declare that this incident alone could have created a hostile work
environment. Yet this August 11th incident in Lumpkins clearly resembles the
isolated incident which the Third Circuit indicated was extremely serious and
might by itself demonstrate severe conduct in Castleberry. After all, both involved
use of the N word along with threats of termination. And though our Supreme
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Court appeared reluctant to state one extremely severe incident could create a
hostile work environment, its discussion of the impact of racist language and its
reinstatement of the jury’s verdict in Lumpkins indicates that a supervisor’s usage
of the N word in referring to employees is a very serious matter – consistent with
Castleberry and Cantrell.
In sum, even if Appellants were not otherwise entitled to relief from
the trial court’s denying their motion to supplement the record and to reconsider
summary judgments15 in light of Castleberry, a supervisor’s referring to employees
by using the N word must be regarded as extremely serious conduct. The trial
court erred in not viewing evidence of supervisors’ using racial slurs and/or
condoning subordinates’ usage of racial slurs as evidence of extremely serious
conduct.
15
In a practical sense, though the trial court ostensibly denied the motion to supplement the
record, a hard copy of the Castleberry opinion became part of the record when submitted as an
exhibit to the motion. And the trial court acknowledged it read Castleberry. We review the trial
court’s application of Castleberry and of other legal authority de novo. Commonwealth v.
Pridham, 394 S.W.3d 867, 875 (Ky. 2012). As for the motion for reconsideration, we construe
that as a motion to alter, amend, or vacate under Kentucky Rules of Civil Procedure (“CR”)
59.05. See generally Cloverleaf Dairy v. Michels, 636 S.W.2d 894, 895-96 (Ky. App. 1982).
Our precedent indicates that while the denial of such a CR 59.05 motion is not itself appealable,
we should simply consider the appeal to be taken from the final judgment – here the finalized
grant(s) of summary judgment – challenged by the CR 59.05 motion. Ford v. Ford, 578 S.W.3d
356, 365-66 (Ky. App. 2019).
-27-
II. A. 3. Evidence of Harassment Towards Others of Same Protected Class
(Race) to Support Racially Hostile Work Environment Claims
In addition to declining to reconsider in light of Castleberry, in
deciding whether each individual Appellant offered proof of severe or pervasive
conduct, the trial court also disregarded evidence of harassment directed at other
African-American employees. Appellants argued that Sixth Circuit precedent
required consideration of all acts of harassment directed towards African-American
employees in considering whether a racially hostile work environment was created
under the totality of the circumstances. See Jackson v. Quanex Corp., 191 F.3d
647 (6th Cir. 1999); Berryman v. Supervalu Holdings, 669 F.3d 714 (6th Cir.
2012).
In Quanex, the Sixth Circuit held that the trial court erred in granting
judgment for the employer by excluding evidence of racial harassment not directed
at or witnessed by the plaintiff, especially since the plaintiff offered evidence of
her awareness of acts directed toward other individuals:
Given that analysis of this claim required a consideration
of all of the circumstances, the district court committed
error when it deemed irrelevant the overwhelming
evidence Jackson proffered documenting discriminatory
conduct towards other African-American employees at
Quanex. . . . [A]n employer may create a hostile
environment for an employee even where it directs its
discriminatory acts or practices at the protected group of
which the plaintiff is a member, and not just at the
plaintiff herself. . . . Evidence of racist conduct affecting
African-American employees certainly mattered as to
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whether the work environment at Quanex was objectively
hostile to African Americans, and evidence that Jackson
learned of these incidents clearly demonstrated that, as an
African American, she subjectively perceived that her
work environment was one hostile to her.
191 F.3d at 660-61.16
Citing Quanex, the Sixth Circuit later affirmed a summary judgment
granted in favor of the employer. It held that multiple employee plaintiffs were not
entitled to consideration of evidence of acts directed towards their co-plaintiffs
since they did not offer evidence of their awareness of these acts. Berryman, 669
F.3d at 718-19.
As of September 2022, Berryman has not been cited in any published
Kentucky state case. Furthermore, its requirement that plaintiffs must
affirmatively present evidence of their awareness of harassing acts directed toward
others for such acts to be considered to support their own hostile work environment
claims may not be consistent with our Supreme Court’s discussion in Lumpkins.
In fact, Lumpkins calls for consideration of harassing acts directed at
others of the same protected class – without explicitly requiring that plaintiffs
present affirmative evidence of their being aware of such acts directed at others.
16
Albeit in unpublished cases, Quanex has been cited by this Court to recognize that evidence of
a plaintiff’s secondhand awareness of harassment directed towards others of the same protected
class should be considered to support hostile work environment claims. See Morton v. United
Parcel Service, Inc., No. 2017-CA-001802-MR, 2019 WL 3059899, at * 4 (Ky. App. Jul. 12,
2019); Yancey v. Sheriff of Jefferson County, Nos. 2002-CA-000229-MR & 2002-CA-000293-
MR, 2004 WL 323352, at * 6 (Ky. App. Feb. 20, 2004).
-29-
157 S.W.3d at 605 (noting jury should not be directed to “disaggregate” individual
circumstances when assessing whether a hostile work environment was created).
Though the facts of Lumpkins may suggest that the plaintiffs had some awareness
of some acts directed at co-plaintiffs,17 the opinion does not discuss whether all
plaintiffs were aware of all acts directed toward co-plaintiffs.
Given our Supreme Court’s directives in Lumpkins, the trial court
erred in refusing to consider evidence of acts of racial harassment directed at other
plaintiffs of the same protected class and in concluding that no plaintiff could
succeed in proving his racially hostile work environment claims.
II. A. 4. Requirements that Harassment be Objectively and Subjectively
Offensive for Claims of Hostile Work Environment
Not only must harassing conduct be severe or pervasive to create a
hostile work environment, but “the harassment must also be both objectively and
subjectively offensive as determined by looking at all the circumstances.”
Ammerman, 30 S.W.3d at 798 (internal quotation marks omitted). Relevant
circumstances “include the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an employee’s work performance.” Id.
17
The three plaintiffs in Lumpkins worked as lifeguards at Louisville city pools over the same
summer and were typically assigned to pools in African-American neighborhoods. 157 S.W.3d
at 603. The three had the same direct supervisor and were present during the undisputed August
11th incident. Id. at 604.
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Appellants provided ample testimony about racially offensive
comments and conduct at their workplace. Appellants testified to the use of racial
slurs like the “N word” or “coons,” often by co-workers in the presence of
supervisors – the same supervisors who failed to take any action even when
Appellants complained of being offended by such language.
Some Appellants also testified to their supervisor, Robert Bishop,
referring to some employees as “N—ers” and bragging about how he was the one
being promoted despite having less experience. Similarly, some testified to Bishop
and others making fun of the (at that time) sole African-American supervisor,
Henry Lacy – and to Bishop’s saying Lacy would only be welcome at Bishop’s
house as a lawn jockey. Some testified to Lacy’s generally being treated with
derision and disrespect by White supervisors. Bishop and other supervisors denied
many of these alleged acts in their testimony.
Some Appellants also testified to seeing Confederate flags in a co-
worker’s photo album open in the workplace or on a co-worker’s license plate, and
to seeing swastikas repeatedly appearing on bathroom walls despite continuing
efforts to paint over them. These Appellants also testified to being aware of racial
connotations to these symbols, being offended by such symbols, and observing a
lack of effective action by management to combat such offensive displays. For
-31-
example, some testified that it took years for LFUCG to offer racial harassment
training despite recurring instances of racially offensive displays.
Appellants also offered testimony that some co-workers had said it
was “assassination time” in response to the election of President Barack Obama
(the first African-American President of the United States) in 2008. Also, some
Appellants testified about African-American employees’ being subjected to non-
verbal acts of physical aggression – though LFUCG contends that much of this was
mere horseplay and/or occurred outside the statute of limitations.
The trial court frequently dismissed the Appellants’ deposition
testimony about racial slurs and other harassment if such testimony was otherwise
“uncorroborated” by others. Testimony such as that offered by Carter about racial
slurs and Stewart’s testimony about hearing a supervisor refer to a co-worker as a
“N—er” was disregarded. This was error, as this sworn deposition testimony of
record – even if disputed by others’ accounts – at least reflects factual disputes.18
18
The trial court remarked that Carter’s deposition testimony was “uncorroborated” and that one
could not get past summary judgment without significant evidence. The trial court even stated
that instead of relying on evidence, Carter relied on his own deposition testimony. (Carter
Summary Judgment, p. 16.) As authority, the trial court quoted Wymer v. JH Resources, Inc., 50
S.W.3d 195 (Ky. 2001): “The party opposing summary judgment cannot rely on their own
claims or arguments without significant evidence in order to prevent a summary judgment.” Id.
at 199. But Wymer did not discuss any deposition testimony or other testimony which was not
corroborated by other evidence – instead, it discussed how the plaintiff had brought forth no
evidence to support a key element of her claim and how she admitted she could not perform the
duties of her job. See id. at 199-200 (plaintiff presented no evidence of termination in retaliation;
instead evidence showed that she was terminated because she admittedly could not perform
duties of job). Though deposition testimony is not always presented at trial, sworn deposition
testimony made part of the record is something the trial court must review to see if there exist
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The trial court also erred in simply accepting some witnesses’ denials
of some events (such as a witness’s being subjected to racial slurs at the
workplace) rather than recognizing that genuine issues of material fact existed in
light of conflicts with other testimony. A court is not to weigh evidence and assess
credibility at the summary judgment stage since it should not decide any issues of
fact at that point, but it should simply examine the evidence to see if issues of fact
exist. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). Faced with a motion for summary judgment, a court must weigh the
evidence in the light most favorable to the non-moving party and assess whether it
would be impossible for the non-moving party to prevail. Id. at 482-83. If
evidence is disputed, as here, it would not be impossible for the non-moving party
to prevail as the jury could choose to believe the non-movants’ version of events.
Though proving some claims at trial may be difficult given conflicts
in the evidence, such as others’ denials, sworn deposition testimony must still be
considered in ruling on summary judgment motions. CR 56.03. For example,
though a co-worker and supervisor dispute Stewart’s testimony about the use of a
racial slur, this does not mean that Stewart could not prevail. Instead, a reasonable
jury might conclude that one had simply forgotten or never heard certain remarks,
material issues of fact and/or if the movant entitled to judgment as a matter of law. CR 56.03.
Sworn deposition testimony, in short, is substantial evidence.
-33-
or were lying, or that Stewart accurately remembered the use of a racial slur but
was confused about whom it was directed toward. And again, the evidence must
be construed in the light most favorable to the non-moving party for purposes of
summary judgment.
Furthermore, though we must leave it to our Supreme Court to
ultimately clarify whether one extremely serious isolated incident may ever
amount to actionable hostile work environment, Appellants offered evidence of at
least one incident which might reasonably be regarded as extremely serious. In
particular, testimony about supervisor Bishop’s referring to employees as “N—ers”
and bragging about how he obtained promotions over more experienced African-
American employees in front of multiple employees could be construed as an
“extremely serious” incident. Not only was a particularly offensive racial slur
allegedly used in a humiliating manner given the audience, but it could also be
construed as celebrating racial discrimination.
Also offering evidence of other incidents of harassment including
other racial slurs and frequent use of racially offensive symbols in the workplace,
Appellants demonstrated at least triable issues on whether severe or pervasive
conduct occurred resulting in a hostile work environment. See Lumpkins, 157
S.W.3d at 606 (finding sufficient evidence to support jury verdict in plaintiffs’
favor based on evidence of undisputed incident combining racial slurs with
-34-
unfounded accusations and terminations, along with evidence of other instances of
racially harassing conduct).
Again, our Supreme Court has indicated that even where some
incidents of harassment might not be enough by themselves to constitute a hostile
work environment, such incidents must not just be viewed in isolation. Instead, the
combined effect of such incidents must be considered when judging whether a
hostile work environment was created. Lumpkins, 157 S.W.3d at 605.
The trial court erred in dismissing hostile work environment claims
based on each individual incident’s not constituting a hostile work environment by
itself, rather than properly considering the combined effect of such incidents
together. Although some of the incidents to which the Appellants testified might
not be sufficient by themselves to create an actionable hostile work environment,
the evidence presented of multiple incidents of harassment, including supervisors’
usage of egregious, extremely offensive racial slurs, was sufficient to at least create
triable issues of fact about severe or pervasive conduct.
II. A. 5. Requirement That Harassment Be Based on Race for Claims of
Hostile Work Environment Based on Race
Next, we address whether evidence of other required elements of
racially hostile work environment was presented. In addition to a basis for holding
the employer liable for either severe or pervasive conduct, a viable racially hostile
work environment requires proof of additional elements, including that the
-35-
harassment was based on race. Beatty v. Frito-Lay, Inc., 429 F. Supp. 3d 342, 347
(E.D. Ky. 2019) (listing required elements of racially hostile work environment in
KCRA case). See also Gray v. Kenton County, 467 S.W.3d 801, 805 (Ky. App.
2014) (in hostile work environment based on sex case, indicating a hostile work
environment claim requires showing, among other elements, that the harassment
was based on one’s protected class).
The trial court concluded that some Appellants failed to show that any
harassment occurred due to their race. Though evidence of some alleged incidents
of racial harassment did not involve explicit reference to race or the usage of racial
slurs, Kentucky precedent requires that all evidence be construed in favor of non-
moving parties and that all doubts be resolved in their favor when ruling on a
motion for summary judgment. See, e.g., Weickgenannt, 485 S.W.3d at 307.
Despite lack of explicit reference to race in some alleged harassing
speech and conduct, a reasonable fact-finder might still infer a racial basis for
some of the complained-of speech and conduct. See Quanex, 191 F.3d at 661-62(noting that evidence of conduct not involving explicit use of racial slurs or racist
language could be considered as part of the totality of the circumstances and one
could not just assume conduct was not racially motivated based solely on lack of
explicit racial language). Construing the evidence in the light most favorable to
Appellants, we conclude there were triable issues of fact on whether various
-36-
incidents of alleged harassment occurred on the basis of race. Furthermore,
construing the evidence in the light most favorable to Appellants, there is evidence
supporting other required elements of a racially hostile work environment,
including subjective perception of harassment and circumstances objectively
supporting a hostile work environment. See Beatty, 429 F. Supp. 3d at 347.
Each Appellant here, who asserted claims for a racially hostile work
environment, provided testimony about his awareness of racial slurs or other
harassing conduct directed at himself and/or others and his subjective perception of
this as offensive and unwelcome harassment. And properly considering the
cumulative effect of incidents of harassment for which evidence was offered, the
trial court erred in granting LFUCG summary judgment based on the evidence not
objectively demonstrating a hostile work environment.
Therefore, viewing the evidence in the light most favorable to
Appellants, there were at least genuine issues of material fact on each required
element of racially hostile work environment claims and LFUCG was not entitled
to judgment as a matter of law. See CR 56.03; Steelvest, 807 S.W.3d at 480. Thus,
we conclude that the trial court erred in granting LFUCG summary judgment on
Appellants’ claims of a racially hostile work environment.19
19
The trial court also perceived that Appellants alleged claims for other types of racial
discrimination in addition to a racially hostile work environment – such as disparate treatment
and/or failure to promote. After detailed analysis, it concluded that LFUCG was entitled to
-37-
II. B. Hostile Work Environment Based on Sex Claims
Next, we address Gene Barrell’s and Darryl Stewart’s claims of
hostile work environment based on sex. According to deposition testimony,
Robert Bishop, the direct supervisor of Stewart and Barrell, engaged in
inappropriate workplace conduct. This conduct included patting Barrell’s
posterior; making lewd gestures, such as Bishop’s grabbing his own crotch; and
making comments about Barrell’s being Bishop’s “bitch,” and directing Barrell to
suck Bishop’s “dick” on an unspecified number of occasions. Stewart also
testified to seeing Bishop make “humping” motions simulating sexual activity
behind Barrell’s back. (Barrell did not testify in his deposition about Bishop
making the humping motions, although he stated in a written document in the
record that other employees had told him about this happening.) Bishop denied
making lewd comments and gestures in his deposition testimony, although he
admitted to once yelling at people to get the f— out of his office.
According to Stewart, he told SRF Deputy Director Miller and
Director Williams about Bishop’s treatment of Barrell, including the lewd
comments and gestures, and neither Miller nor Williams did anything other than
summary judgment on these other types of racial discrimination claims because Appellants could
not prove requisite elements such as adverse employment action or sufficiently similar
comparators. Appellants’ briefs do not clearly argue error in the trial court’s analysis on these
other types of racial discrimination claims – for example, they do not argue that comparators
were sufficiently similar. Instead, they focus their arguments on their racially hostile work
environment claims which, they note, do not require a showing of adverse employment action.
-38-
say that should not happen or there were two sides to every story. Miller and
Williams did not report the allegations of sexual harassment to HR, despite their
duty to do so, according to HR representative Ashley Case’s testimony.
Case testified that, based on HR records, Stewart orally told HR
representative Philip Burbage about the harassment in about February 2009.
Burbage conducted an “informal” investigation but apparently did not make any
documentation. During this initial informal investigation, Barrell indicated he did
not perceive, at the time, the posterior-patting as anything other than a coach-like
gesture of approval and he denied some of Stewart’s allegations. However, Case
acknowledged that Burbage did not specifically ask Barrell about all alleged
comments by Bishop, contrary to best HR practices.
According to Barrell and Stewart, despite their informal reporting
efforts, Bishop’s lewd behavior towards Barrell continued. Stewart filed a formal
sexual harassment charge in fall 2009. The Equal Employment Opportunity
Commission (“EEOC”) found probable cause that sexual harassment occurred,
although it declined to file suit. Barrell cooperated with the investigation and later
joined Stewart in alleging that Bishop had directed harassing acts towards Barrell.
(Barrell claims in his brief that he had simply tried to give Bishop the benefit of the
doubt in early 2009, but that continued harassing acts changed his mind about
-39-
Bishop.) Eventually Barrell and Stewart were transferred to working under a
different supervisor.
Some evidence indicates that Stewart and Barrell brought alleged
harassment to the attention of HR representative Burbage, Miller, and Williams
well prior to Barrell’s formal written grievance in the fall of 2009 – even though
Barrell initially denied some allegations by Stewart when questioned by Burbage
in early 2009. Evidence of Barrell’s initially denying some of Stewart’s
allegations adds to, rather than disproves, the existence of genuine issues of
material fact – particularly since the evidence must be considered in the light most
favorable to the non-moving party in considering summary judgment.
II. B. 1. Principles of Employer Liability – Hostile Work Environment (Sex)
Barrell and Stewart did not pinpoint exactly when various instances of
harassment occurred in their deposition testimony. But we cannot share the trial
court’s view that the evidence conclusively showed that no harassing acts occurred
after harassing conduct was reported. Instead, viewing the evidence in the light
most favorable to Barrell and Stewart, questions of fact exist whether harassing
acts continued after Barrell and Stewart formally or informally reported
harassment. This is true whether the reporting was by orally advising Burbage,
Miller, or Williams, and/or by formally filing complaints of harassment internally
(to HR) or externally with other government agencies.
-40-
Furthermore, precedent does not necessarily require that harassing
conduct always be formally reported before an employer can be held liable for
failing to stop a supervisor’s harassing conduct. As stated by the United States
Supreme Court about potential vicarious liability of employers in sexual
harassment cases, “absence of notice to an employer does not necessarily insulate
that employer from liability.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72,
106 S. Ct. 2399, 2408, 91 L. Ed. 2d 49 (1986). The high court specifically rejected
an argument that “the mere existence of a grievance procedure and a policy against
discrimination, coupled with [employee’s] failure to invoke that procedure, must
insulate [employer] from liability.” Id.For example, if harassing conduct is not formally reported, but is
brought to the attention of supervisors who fail to take action, the employer may
also be subject to vicarious liability for actions occurring before any formal report,
despite the existence of a facially effective anti-harassment policy. See Clark, 400
F.3d at 350-51 (evidence of lower-level supervisors witnessing and failing to
report incidents of higher-level supervisor engaging in questionable behavior –
despite supervisors’ duty to report any harassment under employer’s policy –
created issues of fact about whether employer exercised reasonable care to prevent
and correct harassment). Therefore, we cannot agree with the trial court’s finding
-41-
that LFUCG was shielded from any possibility of vicarious liability at the
summary judgment stage.
II. B. 2. Other Elements of Hostile Work Environment Based on Sex
We next address whether LFUCG was entitled to judgment as a
matter of law on other grounds. In addition to some basis for holding the employer
liable, a viable claim of hostile work environment based on sex requires proof of:
1) being a member of a protected class, 2) being subjected to “unwelcome sexual
harassment,” 3) the harassment being based on one’s sex, and 4) the harassment
creating a hostile work environment. Gray, 467 S.W.3d at 805 (citing Clark, 400
F.3d at 347).
Barrell and Stewart are members of a protected class. Males such as
Barrell and Stewart are entitled to protection against a hostile work environment –
including conduct amounting to same-sex harassment. Brewer v. Hillard, 15
S.W.3d 1, 11 (Ky. App. 1999) (citing Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998)). Nonetheless, “[a]lthough
the Supreme Court ruled in Oncale that same-gender sexual harassment cases are
cognizable, the Court made it very clear that the plaintiff must show that the
conduct constituted discrimination because of sex,” in other words that “members
of one sex are exposed to disadvantageous terms or conditions of employment to
-42-
which members of the other sex are not exposed.” Brewer, 15 S.W.3d at 11(quoting Oncale, 523 U.S. at 80, 118 S. Ct. at 1002).
Viewing all evidence in the light most favorable to Barrell and
Stewart, there is at least a genuine issue of material fact about whether both men
were subjected to unwelcome conduct which subjectively and objectively created a
hostile work environment. To the extent that the trial court’s summary judgment
suggests that Barrell could not show any unwelcome harassing conduct at all due
to some conflicting evidence, this is inconsistent with viewing the entirety of the
evidence in the light most favorable to the non-moving party.
The trial court did not explicitly state that Stewart could not show
unwelcome harassment, though it noted that Bishop’s alleged conduct was directed
at Barrell rather than Stewart. But a supervisor’s directing lewd comments and
gestures toward another worker before a captive audience of other employee(s) can
be understood as harassing behavior towards witnesses of the same protected class
as well as the direct target of the offensive conduct. See Gallagher v. C.H.
Robinson Worldwide, Inc., 567 F.3d 263, 271 (6th Cir. 2009) (describing
harassment consisting of vulgar, sexist comments and conduct directed at plaintiff
and to other women employees in her presence and noting: “The natural effect of
exposure to such offensive conduct is embarrassment, humiliation and degradation
-43-
. . . .”). Thus, both Barrell and Stewart established at least triable issues of fact on
the element of being subjected to unwelcome harassment.
Even assuming both had been subjected to unwelcome harassment,
the trial court determined Barrell and Stewart failed to present evidence the
harassment occurred because of their sex or of a discriminatory environment
toward males. But despite any lack of direct evidence of discriminatory animus
towards males in general, the alleged conduct itself – consisting of lewd comments
and gestures and inappropriate touching directed to, and witnessed by, subordinate
male employees – could support an inference of an attempt to humiliate
subordinate males.
Although some evidence suggests that female employees may have
also witnessed some inappropriate comments or conduct toward Barrell, no
evidence shows the same conduct, including “humping” motions behind one’s
back, being directed at females. In Brewer (which involved similar allegations of
lewd comments and gestures and inappropriate touching), 15 S.W.3d at 4, we
concluded the evidence was sufficient to support the jury’s finding of harassment
based on sex and noted no evidence had been presented of the same conduct being
directed towards females. Id. at 12. Although Brewer involved a trial rather than a
summary judgment, and the opinion does not describe the evidence presented other
than noting the lack of evidence of similar conduct directed at female employees,
-44-
perhaps an inference – rather than direct evidence – led to the jury’s finding that
the plaintiff was harassed due to sex. Of course, proving a hostile work
environment requires proof of both subjectively perceiving such an environment
and of circumstances supporting an objective finding of a hostile work
environment. Gray, 467 S.W.3d at 805.
The trial court rejected any possibility that Barrell could prove
subjective perception of an abusive environment, pointing to Barrell’s deposition
testimony that at one point he had not viewed the harassment as severe and did not
perceive an instance of being patted on the posterior as anything worse than a
coach-like gesture of approval. Obviously, this portion of Barrell’s testimony
might provide ample fodder for cross-examination at trial. But viewing the
entirety of the evidence – including oral and written statements expressing how
both Barrell and Stewart were offended and embarrassed by Bishop’s conduct – in
the light most favorable to the non-moving parties, there are at least genuine issues
of fact for trial about their subjective perception of a hostile work environment.
As for determining whether an objectively hostile work environment
has been shown, “common sense” and “an appropriate sensitivity to social context”
are important. For example, a pat on the backside might be perceived differently
on an athletic field versus an office. And there is a need to distinguish between
innocuous teasing or rough-housing versus “severely hostile or abusive” conduct.
-45-
Brewer, 15 S.W.3d at 12 (quoting Oncale, 523 U.S. at 82, 118 S. Ct. at 1003).
Accepting the plaintiffs’ allegations about Bishop’s conduct to be true, the conduct
is similar to that discussed in Brewer. At least some evidence indicates more than
an isolated incident and, despite any lack of direct threats, evidence of lewd
comments combined with humping motions and posterior-patting suggests
humiliating conduct, especially when witnessed by other employees.
So, whether the conduct alleged here is sufficiently pervasive or
severe as to create an objectively hostile work environment is, in our judgment, not
appropriately resolved by summary judgment under Kentucky’s standard. 20 This
is especially true given questions of fact about when and how often the conduct
occurred and in whose presence. This type of fact finding is left to a jury.
When properly viewing the evidence in the light most favorable to
Barrell and Stewart for summary judgment purposes, general issues of material
fact existed and LFUCG was not entitled to judgment as a matter of law on their
sexual harassment claims. Therefore, we reverse the grant of summary judgment
on Barrell’s and Stewart’s claims of hostile work environment based on sex.
20
Though allegations of sexual harassment were resolved by trial rather than summary judgment
in Brewer, we aptly noted in our discussion of other issues that summary judgment standards are
different in Kentucky state courts versus federal courts. Id. at 10.
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II. C. Gender-Based Discrimination – Failure to Promote
Having concluded the trial court erred in the grant of summary
judgment on Stewart’s and Barrell’s claims of hostile work environment based on
sex, we next address Ann Ratliff’s gender-based discrimination claim. 21 Ann
Ratliff, the only female Appellant, alleged that she received less favorable
treatment in employment decisions based on her gender. Specifically, Ratliff
claimed gender-based discrimination in not being selected as an acting supervisor
and not being promoted to either of two permanent supervisory positions which
became open in 2009.
She also pointed to evidence that a male (Brian Butler) was treated
differently than her since he was allowed to continue working on modified light
duty in excess of LFUCG limits in 2010. In contrast, she was not allowed to
exceed modified light duty limits after a work injury left her unable to perform her
original job duties, so she was forced to accept a demotion around 2002.
The trial court held any gender discrimination claim related to the
modified light duty policy was time-barred under the five-year statute of
limitations in KRS 413.120(2) since Ratliff was demoted about 2002 but the
complaint was not filed until 2011. Ratliff does not explicitly argue that the trial
court erred in finding this particular claim time-barred in her briefs.
21
Ratliff does not argue she was subjected to sexual harassment in her briefs.
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She also does not argue that the trial court erred in concluding she
could not prevail on allegations of harassment creating a sexually hostile work
environment. Nor does she argue it erred in concluding she could not prove gender
discrimination claims based on written reprimands she received.22 So, we will only
address whether the trial court erred in granting LFUCG summary judgment on her
gender discrimination claims related to her not being assigned as an acting
supervisor nor promoted to a permanent supervisor.
Ratliff does not explicitly challenge the trial court’s determination that
she did not come forward with direct evidence of discrimination. Therefore, we
analyze her gender discrimination case under the burden-shifting framework in
McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973).23 Weickgenannt, 485 S.W.3d at 306 n.8 (citing Commonwealth v.
Solly, 253 S.W.3d 537, 541 (Ky. 2008)).
To make a prima facie showing of gender-based discriminatory
action, a female plaintiff “must show that she is a member of the protected class,
that she was subject to an adverse employment action, that she was qualified for
22
Instead, Ratliff has argued retaliation claims relating to the reprimands she received.
23
If there is direct evidence of discrimination, it is not necessary to apply the McDonnell
Douglas-type framework. See Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495-96 (Ky.
2005) (plaintiff must either provide direct evidence of “discriminatory animus” or satisfy the
elements of the McDonnell Douglas burden-shifting test to prove discrimination).
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the position, and that a similarly situated male was treated more favorably.” Solly,
253 S.W.3d at 541. If a plaintiff makes a prima facie showing of discriminatory
action, the burden then shifts to the employer to offer proof of a legitimate, non-
discriminatory reason for the employment action. If the employer offers a non-
discriminatory reason, the plaintiff must then be afforded a fair opportunity to
show that the stated reason is pretext for discrimination. Weickgenannt, 485
S.W.3d at 306.
II. C. 1. Qualifications for Promotion
Ratliff argues that she made a prima facie showing of gender
discrimination in regard to both the acting supervisor assignments and permanent
supervisor positions. The trial court, however, only explicitly found a failure to
make a prima facie showing on the acting supervisor assignments.24 The trial court
explicitly stated Ratliff could not prove qualification to serve as an acting
supervisor because “[she] did not have supervisory experience on the crews that
needed a temporary supervisor.” (Summary Judgment, p. 8.)
LFUCG argues the trial court correctly decided Ratliff was not
qualified to serve as an acting supervisor because she was on a different crew and
24
Ratliff points out in her brief that HR found her qualified for the permanent supervisor
positions. And she argues that she was even more qualified for the permanent positions in some
respects than the promoted males. Yet the trial court did not explicitly conclude she was not
qualified for the permanent supervisor positions.
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did not have supervisory experience on the crews with temporary supervisor needs.
But LFUCG fails to point to any evidence about the required qualifications to serve
as an acting supervisor or whether Ratliff met such qualifications in its brief.
Instead, LFUCG cites its Memorandum in Support of Summary
Judgment to support this argument. But LFUCG cited no supporting evidence for
this argument in this memorandum, either. And the memorandum itself is not
evidence nor a pleading as defined in CR 7.01. See CR 56.03. Arguments made
by counsel are not evidence. See, e.g., Dixon v. Commonwealth, 263 S.W.3d 583,
593 (Ky. 2008). Therefore, arguments made by counsel in a motion, or
memorandum in support of a motion, which do not cite to supporting evidence, do
not provide a proper basis for granting summary judgment. On the other hand,
Barnett (Ratliff’s direct supervisor) opined on Ratliff’s grievance filed with HR
that she was qualified to serve as an acting supervisor. So, the trial court erred in
concluding Barnett could not show she was qualified to be an acting supervisor;
instead, there appear to be triable issues of fact on this matter.
II. C. 2. Similarities with Comparators
In addition to concluding Ratliff could not show she was qualified to
serve as an acting supervisor, the trial court held the males assigned to serve as
acting supervisors were not sufficiently similar for Ratliff to establish a prima facie
showing of discrimination. At first glance, this holding may seem consistent with
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Weickgenannt – which indicates comparators must be “nearly identical” in all
relevant aspects of their employment situations. 485 S.W.3d 308. However,
Weickgenannt involved the unique context of university tenure decisions.
Further, shortly after Weickgenannt’s rendition, we held that a less
onerous standard requiring only similar qualifications for discrimination claims
applied to failure to promote cases. See Walker v. Commonwealth, 503 S.W.3d
165, 174-75 (Ky. App. 2016) (rejecting as inapplicable the nearly identical in all
relevant aspects standard stated in a disparate treatment/wrongful discharge
opinion stemming from a higher education setting – McBrearty v. Kentucky
Community and Technical College System, 262 S.W.3d 205, 214 (Ky. App. 2008)).
Our Supreme Court denied discretionary review of our opinion in Walker.
Applying the less onerous similar qualifications standard, Ratliff
showed some genuine issues of material fact about whether she and the males
assigned to serve as acting supervisors were similarly situated as she offered proof
of her many years of experience in similar areas. The trial court erred in finding
Ratliff failed to show similarity with the males appointed acting supervisors and
concluding she failed to make a prima facie showing of gender discrimination.25
25
LFUCG argued in its brief that Ratliff offered no evidence – besides her own testimony – of
being better qualified to serve as an acting supervisor than a male selected to do so. But it was
not necessary for her to offer proof of being better qualified to make a prima facie showing of
gender discrimination – rather she simply had to, and did, offer proof that she was qualified and
was similarly situated to those selected as acting supervisors.
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As Ratliff did make a prima facie showing of gender discrimination
regarding both acting and permanent supervisor positions, the burden then shifted
to LFUCG to produce evidence of non-discriminatory reasons for her not being
selected for these positions. As LFUCG offered facially non-discriminatory
reasons for not promoting Ratliff, Ratliff would then have to show these reasons
were pretext for discrimination to ultimately prevail on her discrimination claim.
II. C. 3. Pretext
The trial court erred in concluding Ratliff could not prove that
LFUCG’s asserted, non-discriminatory reasons for not promoting her to a
permanent supervisor position were pretextual. The reason offered by LFUCG for
not promoting her to permanent supervisor was differences in interview scores.
The trial court accepted LFUCG’s assertion that Ratliff admitted interview scores
could not have been discriminatory in her deposition. But Ratliff merely admitted
that since the same questions were asked of each applicant, the questions were not
discriminatory. Rating the impression a job candidate makes or how well the
candidate answers interview questions is subjective. An interviewer could apply
different standards to interviewees depending on their gender. Even though the
same questions are asked, differences in interview scores could stem partly from
discriminatory attitudes and not solely from actual differences in interview
answers.
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Despite noting Ratliff’s “allegations of sexist conduct and comments
by her superiors,” (Summary Judgment, p. 7), the trial court still concluded Ratliff
failed to present evidence of pretext. Mindful of the obligation to construe the
evidence in the non-moving party’s favor for summary judgment purposes, we
disagree – Ratliff offered evidence which is sufficient to raise genuine issues of
material fact on whether LFUCG’s stated reasons were a pretext for
discrimination.
Ratliff pointed to several items of evidence which a reasonable fact-
finder could construe as indicating that LFUCG’s reasons for its employment
decisions were pretextual. She offered supportive testimony about her abilities and
job performance from her supervisor and a co-worker, and she testified to
observing several males, but no females, serving as acting supervisors over a
several-year period. She also presented her own and others’ testimony about her
informally and successfully taking on supervisory duties as needed on a temporary
basis when her boss was not present.
She also presented evidence of general statements from some
supervisors/decision-makers that Ratliff would not be promoted. And she testified
that she heard her supervisor, Jack Barnett, remark that he did not believe upper
management would want a woman to be a supervisor. She also points to evidence
that Director Williams refused to address issues in a grievance she filed and that
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Williams told her that she could not even manage herself – which she construed as
commentary on her appearance.26
Although Ratliff does not point to any evidence specifically relating
decision-makers’ estimation of her abilities to gender bias,27 a reasonable fact-
finder might infer gender bias from evidence of decision-makers stating she would
not be promoted or expressing unfavorable opinions of her – especially in light of
other evidence of women not being appointed acting supervisors and of Ratliff’s
requests to gain supervisory experience being repeatedly denied.
Effective evidence of pretext shows there is no basis in fact for the
reason offered by the employer, or that the offered reason is not the actual reason,
or that the reason does not sufficiently explain the employment decision. Walker,
503 S.W.3d at 176. The evidence presented by Ratliff could prompt a reasonable
fact-finder to question whether wholly subjective interview scores alone
sufficiently explain the employment decision.
26
Williams’s recollection of conversations with Ratliff may have differed from Ratliff’s. Yet for
purposes of summary judgment, the evidence must be viewed in the light most favorable to the
party opposing summary judgment. Weickgenannt, 485 S.W.3d at 307.
27
Compare McClure v. Dollar General Stores Ltd., No. 2007-CA-001768-MR, 2008 WL
4092855, at *3 (Ky. App. Sep. 5, 2008) (concluding that age discrimination plaintiff showed
there were triable issues about whether the employer’s asserted legitimate and non-
discriminatory reasons for termination were pretextual by offering evidence that a manager made
statements to other employees that plaintiff needed to retire due to her age; thus reversing trial
court’s grant of summary judgment on age discrimination claim).
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Construing the evidence in the light most favorable to Ratliff and
resolving all ambiguities in her favor, Ratliff succeeded in demonstrating genuine
issues of material fact about the reasons for her non-promotion. The trial court
erred in deciding she could not prove pretext. See Dollar General Partners v.
Upchurch, 214 S.W.3d 910, 916-17 (Ky. App. 2006) (though employer offered
proof of non-retaliatory reasons for treatment of employee, jury verdict on
retaliation was supported as conflicting evidence created issues of fact though it
was not conclusive on pretext).
As Ratliff made a prima facie showing of gender discrimination and
there were triable issues on pretext, the trial court erred in granting LFUCG
summary judgment on Ratliff’s gender discrimination claim.
II. D. Jack Barnett’s Age Discrimination Claim
Next, we address the age discrimination claims of Jack Barnett.
Barnett alleged the sole age discrimination claim in the complaint – asserting that
he was unfairly passed over for promotion due to his age. Barnett was about 62
years old when the complaint was filed in 2011.
The KCRA prohibits discrimination on the basis of age over 40. KRS
344.040(1). Like other types of discrimination claims under the KCRA, an age
discrimination claim requires that: 1) plaintiff is a member of a protected class, 2)
plaintiff suffered adverse employment action such as being rejected for a position,
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and 3) plaintiff was qualified for the position. Unlike other types of
discrimination claims, an age discrimination claim does not require that the person
hired for the position was NOT a member of the protected class – instead, the age
discrimination plaintiff must show the person hired was significantly younger.
O’Connor v. Consol. Coin Caters Corp., 517 U.S. 308, 313, 116 S. Ct. 1307, 1310,
134 L. Ed. 2d 433 (1996); Williams, 184 S.W.3d at 496.
Barnett, who was over 40 at all relevant times, was a member of a
protected class. See KRS 344.040(1). Barnett applied for a promotion to serve as
supervisor, senior over the equipment section in 2010, when he was about 61 or 62
years old. Instead of Barnett, Tony King, who was then about 50 years old, was
selected for the position. The trial court granted LFUCG’s motion for summary
judgment, pointing out that King was also a member of a protected class since he
was over 40 years old and concluding Barnett could not show age discrimination.
The trial court also accepted LFUCG’s asserted reasons for selecting
King for the position – based on “interviews, job qualifications and job
performance” – as “legitimate, nondiscriminatory reasons for promotion.” And
despite Barnett’s assertions of having more experience than King, the trial court
stated: “King was a supervisor within the same area of responsibility that he was
promoted for longer than Barnett had worked for LFUCG.” The trial court also
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concluded that Barnett failed to offer evidence of pretext except for “Barnett’s own
statements and allegations.” (Summary Judgment, p. 12.)
Barnett argues the trial court erred in granting summary judgment
since King was significantly younger than he, citing authority that an eight-year
age difference is substantial. See Williams, 184 S.W.3d at 496. We agree with
Barnett that the at least ten-year age difference between Barnett and King was a
significant difference. So, the trial court was incorrect in rejecting any prima facie
showing of age discrimination based solely on King’s being over the age of 40
himself. See id.
Barnett asserts he had significant experience in the equipment section.
He cites to evidence of his many years of experience as well as his recent service
as an acting supervisor over the sweeper crew for which he received a good
evaluation. Barnett offered sworn deposition testimony about events he had
personal knowledge of, including his years of experience, his recent experience as
an acting supervisor, and his observation of a significantly younger candidate
being promoted instead of him. With this proof, he made a prima facie showing of
age discrimination.
LFUCG offered facially non-discriminatory reasons for selecting the
younger candidate for the promotion, including differences in job qualifications
and differences in performance on the job and in interviews. But as we previously
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discussed, grading interview performance is subjective and may be influenced by
discriminatory attitudes, and the same is true about grading job performance.
Furthermore, Barnett offered proof from which a reasonable fact-
finder might infer that LFUCG’s stated reasons were pretextual. Namely, he
testified to being told interviews were being conducted for the position of senior
supervisor over the equipment section. He also testified to observing that King
was promoted to this position before Director Williams switched the senior
supervisors over the equipment and sweeper crews. Barnett argues that an
inference can be made that Williams did this in order to discriminate against him.
(Barnett had testified to mainly having experience in the equipment section,
despite having recently served as acting supervisor over the sweeper section for 90
days and receiving a good evaluation for doing so.)
Though the trial court dismissed Barnett’s testimony about age
discrimination as uncorroborated or self-serving, it was sworn testimony. And
though Barnett might lack personal knowledge of the actual motivation for
Williams’s actions, Barnett’s testimony about his own recollection of statements or
events which he witnessed should not be ignored for lack of corroboration.
Though this Court held that one’s “self-serving testimony” could not
defeat a properly supported summary judgment motion under different
circumstances, that was in the context of a litigant’s making statements about
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matters of which he had no personal knowledge. See Smothers v. Baptist Hospital
East, 468 S.W.3d 878, 885 (Ky. App. 2015) (holding father’s denial of the
existence of proof that child received medical treatment “cannot overcome the
substantial evidence of record” indicating child received treatment at hospital on
two occasions, especially evidence of health insurance paying for treatment). This
holding followed earlier discussion noting that the child’s mother had taken the
child to the hospital on the two occasions and that the father (who provided health
insurance) denied any knowledge of the hospital visits or any treatment provided.
See id. at 880. Despite the reference to the father’s “testimony,” the opinion also
does not explicitly refer to any deposition or affidavit. And it states the father
failed to offer any affirmative proof to counter the well-supported summary
judgment motion, making it unclear whether any testimony by deposition or
affidavit was actually at issue. See id. at 885.28
In contrast, here, Barnett offered sworn deposition testimony that
Williams told him interviews were being conducted for the senior supervisor of the
equipment section position. He also testified to observing King being promoted to
28
LFUCG also brings to our attention two unpublished cases to support the proposition that
one’s self-serving statements cannot defeat a properly supported summary judgment. But neither
case is binding authority. CR 76.28(4)(c). And neither specifically discusses allegedly self-
serving deposition testimony. See generally Childers v. Caniff Funeral Home, Inc., No. 2010-
CA-001944-MR, 2011 WL 4633890 (Ky. App. Oct. 7, 2011); Whalen v. Mueller Roofing
Distributors, Inc., No. 2003-CA-000925-MR, 2004 WL 2566056 (Ky. App. Nov. 12, 2004).
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senior supervisor over the equipment section before being switched to supervisor
over sweeper crew. This could possibly support an inference of pretext.
Construing the evidence of record in Barnett’s favor, proof exists
which would allow a reasonable fact-finder to infer that the reasons offered by
LFUCG for the decision were not the real reasons or did not sufficiently explain
the decision. See Walker, 503 S.W.3d at 176.
In short, the trial court erred in concluding that Barnett did not make a
prima facie case of age discrimination and could not prove pretext. Thus, the trial
court erred in granting summary judgment in LFUCG’s favor on his age
discrimination claim.
III. Retaliation
Having concluded that the trial court erred in granting LFUCG
summary judgment on the discrimination claims discussed in Appellants’ briefs,
we next address Appellants’ retaliation claims. Four elements are required to make
a prima facie showing of retaliation under the KCRA: 1) plaintiff engaged in
activity protected by civil rights law, 2) defendant knew of the protected activity,
3) afterwards, defendant took adverse employment action against the plaintiff, and
4) there exists a causal connection between the protected activity and the adverse
employment action. Brooks v. Lexington-Fayette Urban County Housing
Authority, 132 S.W.3d 790, 803 (Ky. 2004) (citing Christopher v. Stouder
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Memorial Hosp., 936 F.2d 870, 877 (6th Cir. 1991)). If the plaintiff makes a prima
facie showing of retaliation but the defendant offers proof of non-retaliatory
reasons for its actions, the plaintiff needs to show the offered reasons are mere
pretext to meet the burden of persuading the fact-finder that unlawful retaliation
occurred. Kentucky Dep’t of Corrections v. McCullough, 123 S.W.3d 130, 134
(Ky. 2003).
When presented with LFUCG’s motion for summary judgment on
Appellants’ retaliation claims, the trial court had to resolve not whether Appellants
met their burden of persuasion, but whether there were triable issues, when
viewing the evidence in the light most favorable to Appellants. See Steelvest, 807
S.W.2d at 480 (trial judge faced with summary judgment motions “must examine
the evidence, not to decide any issue of fact, but to discover if a real issue exists”).
Summary judgment was only proper if it would be impossible for the non-moving
parties (here Appellants) to present evidence warranting judgment against LFUCG
and in Appellants’ favor at trial. Id. at 483. We find the trial court erred in
concluding none of the Appellants could prove all required elements of their
retaliation claims and granting LFUCG summary judgment on these claims.
III. A. Retaliation Claims of Barrell and Stewart
First, we address the retaliation claims of the two Appellants who
alleged claims for hostile work environment based on sex, Barrell and Stewart.
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The trial court did not explicitly state they failed to come forward with evidence of
the first two elements: protected activity29 and the employer’s knowledge of the
protected activity. But it concluded they could not show the third and fourth
elements, adverse employment action and causal connection.
The trial court interpreted the adverse employment action element as
requiring evidence of loss of pay or other benefits or other tangible job detriment.
It held that many actions alleged by Barrell did not qualify as adverse employment
actions because of lack of tangible effect on pay or benefits or job duties. These
allegations included verbal threats and increased scrutiny, false charges of sexual
harassment by a co-worker, Barrell’s harasser not being demoted, and lateral
transfers or reassignments.30 Similarly, the trial court viewed as not qualifying
29
Stewart offered evidence of his signing the January 2009 memorandum about racial matters
and participating in HR interviews, as well as his filing an EEOC charge of sexual harassment
and orally telling an HR representative about alleged sexual harassment. Both Stewart and
Barrell offered evidence of their telling or trying to tell SRF management about alleged sexual
harassment. And Barrell also offered evidence of his cooperating with the investigation
stemming from Stewart’s EEOC charge of sexual harassment.
30
The trial court seemingly accepted that other actions could qualify as tangible employment
actions but viewed them as unsupported by the evidence. This included allegations of unsafe
working conditions and being assigned undesirable job duties like weed-eating – which the trial
court noted Barrell admitted was within his job duties. Notably, the trial court also viewed his
allegations of further sexual harassment as unsubstantiated due to lack of formally reporting
continuing harassment. But lack of formal written reports does not necessarily prove harassment
did not occur or that the employer could not be held liable as we previously discussed.
The trial court also held that delays in processing Barrell’s Family Medical Leave Act
(“FMLA”) requests could not qualify as adverse employment actions. And it noted indications
that Barrell’s eventual resignation was voluntary. As we conclude that evidence of other actions
was sufficient to make a prima facie showing of adverse employment action, we decline to reach
issues of FMLA preemption or other issues related to his FMLA leave requests.
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tangible adverse employment actions Stewart’s additional allegations of verbal
threats and increased scrutiny, his job evaluations suddenly getting worse, and his
receiving written reprimands, since these did not affect his pay or benefits.31
III. A. 1. Adverse Employment Action
Appellants argued, and we agree, that the trial court did not apply the
proper definition of adverse employment action for retaliation claims. In the
context of civil rights retaliation actions, an adverse employment action does not
have to entail loss of pay or benefits. Instead, it includes a variety of actions which
would deter a reasonable worker from filing a civil rights claim. Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165
L. Ed. 2d 345 (2006).
For example, even a suspension which was later rescinded with back
pay could constitute adverse employment action – despite lack of permanent loss
of pay or benefits – because emotional distress and financial worries could
dissuade a reasonable worker from asserting a civil rights claim even if the
employee eventually received backpay. Id. at 72-73, 126 S. Ct. at 2417. The
31
Though Stewart also offered evidence he was subjected to difficult or dangerous job
assignments, the trial court pointed to evidence such assignments were among his job duties and
its perception of lack of evidence of unsafe conditions. And though Stewart also pointed to
evidence of his termination being sought purportedly on grounds of violating the light duty
policy, the trial court did not view this as a qualifying adverse action since Stewart ultimately
prevailed on proceedings before the Commission and since the parties later dismissed by agreed
order LFUCG’s appeal to circuit court of the Commission’s decision.
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Supreme Court also recognized that seemingly minor events not affecting pay or
benefits like schedule changes or not inviting an employee to lunch could, under
some circumstances, cause real injury or harm; harm or injury such as difficulties
in caring for children or effects on access to training. Id. at 69, 126 S. Ct. at 2415.
III. A. 2. Causal Connection
In addition to applying an overly narrow definition of adverse action,
the trial court erred in concluding Barrell and Stewart could not prove causal
connection since some evidence indicated retaliation was not the sole motive for
adverse action. For example, the trial court noted that Stewart and Barrell admitted
to engaging in conduct for which they could be subject to discipline under
LFUCG’s policies. But the trial court failed to acknowledge that, construing the
evidence in the non-moving parties’ favor, issues of fact existed about whether
disciplinary policies were applied differently to employees who did not engage in
protected activities.
The trial court erred in concluding Barrell and Stewart could not
show the causal connection element. A plaintiff does not have to show that
retaliation was the sole motive for adverse actions to show a causal connection.
Instead, he/she must show that “unlawful retaliatory motive was so integral to the
adverse action that more likely than not the action would not have been taken had
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the employee not engaged in protected activity.” Asbury University v. Powell, 486
S.W.3d 246, 260 (Ky. 2016).
In gleaning which events were integral to leading to adverse actions,
temporal proximity (events occurring close in time) can indicate a causal
connection despite a lack of direct evidence. Generally, the shorter the time
between a protected activity and an adverse action, the more likely there is a causal
connection. This can be especially when other legitimate reasons for the action are
not evident. So, in the absence of direct evidence of causation, precedent recites
that for most cases, a “close temporal relationship” is required to infer causation.
See McCullough, 123 S.W.3d at 135.
Whether the length of time between protected activity and adverse
action is close enough to create an inference of causation depends on the
circumstances. Upchurch, 214 S.W.3d at 916. Some decisions have interpreted
time lapses of just a few months between events as not demonstrating a close
temporal relationship which would, by itself, create an inference of causation. See
Brooks, 132 S.W.3d at 804 (emphasis added) (four-month time lapse between
events was “too long to create, by itself, an inference of causality”). But see
Upchurch, 214 S.W.3d at 916 (sufficiently close temporal relationship to infer
causation where adverse action occurred five months after employee filed workers’
compensation claim and three months after he took medical leave).
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Other cases recognize that time lapses of several months or more do
not make a showing of causal connection between protected activity and retaliatory
action impossible. For instance, the Sixth Circuit held an eleven-month delay
between protected activity and adverse action did not make a showing of causal
connection impossible, due to evidence of retaliatory statements and lack of prior
opportunities for the employer to retaliate. Kirilenko-Ison v. Board of Education of
Danville Independent Schools, 974 F.3d 652, 665-66 (6th Cir. 2020).32
The trial court did not specifically discuss the timing of protected
activities and adverse actions in concluding Barrell and Stewart could not show a
causal connection in its summary judgment orders. Nonetheless, Barrell and
Stewart presented evidence of temporal proximity: adverse actions occurring
within several months of protected activities such as reporting harassment to
management, filing EEOC charges, and cooperating in investigations. And they
also offered evidence that upon being informed of discrimination complaints or
similar protected activities, Williams expressed frustration and displeasure – which
a reasonable fact-finder might construe as making retaliatory statements.
In light of this evidence of relevant circumstances, including temporal
proximity and retaliatory statements, at a minimum Barrell and Stewart
32
Though Kirilenko-Ison was rendered after the trial court entered the summary judgments at
issue, the principles it applied were established in precedent preceding the 2017-2018 summary
judgment proceedings here.
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demonstrated there were genuine issues of material fact about any causal
connection between protected activities and adverse action.
In sum, as the trial court erred in concluding Barrell and Stewart
failed to a make prima facie showing of all required elements of their KCRA
retaliation claim,33 its grant of summary judgment in LFUCG’s favor on their
retaliation claims must be reversed.
III. B. Retaliation Claims of Others Claiming Racial Harassment
Next, we address the retaliation claims of the other Appellants who,
in addition to Stewart, also alleged racially hostile work environment claims.
The trial court granted LFUCG summary judgment on retaliation mainly based on
its determination that Appellants failed to offer evidence of a causal connection
between protected activity and adverse action. But for some Appellants, the trial
33
The trial court concluded Barrell and Stewart could not make a prima facie case of retaliation,
so it did not go on to address whether LFUCG offered legitimate, non-retaliatory reasons for
actions or whether Barrell and Stewart offered evidence LFUCG’s stated reasons were
pretextual. See generally McCullough, 123 S.W.3d at 134. To the extent that LFUCG argues
Barrell and Stewart could not show that its asserted reasons for actions were pretextual, there
appear to be questions of fact concerning the real reasons for LFUCG actions, so, summary
judgment in its favor was not merited although evidence of pretext is not conclusive. See
Upchurch, 214 S.W.3d at 917 (“[w]hile far from conclusive, there was sufficient evidence to
support the jury’s conclusion that Dollar General’s reasons were a mere pretext” – including
evidence of lack of prior complaints about employee, lack of documentation a zero-tolerance
policy existed when alleged improper conduct occurred, and indications of effort to gather
evidence against employee before employer became aware of allegations employee engaged in
improper conduct).
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court was not even satisfied that they offered proof of engaging in a protected
activity.
III. B. 1. Protected Activity
The seven Appellants who asserted a racially hostile work
environment also asserted retaliation claims. They alleged engaging in protected
activities, including their signing and/or circulating the January 2009 informal
memorandum about racial problems in SRF. The trial court generally accepted
that signing and circulating the memorandum were protected activities34 as they
could be construed as reporting discrimination or opposing unlawful activities
under the KCRA.35
The trial court determined, however, that for some Appellants, signing
the memorandum did not qualify as a protected activity because they admitted to
34
LFUCG argues on appeal that the memorandum was vague and that vague charges of
discrimination do not constitute protected activity. However, construing the evidence in the light
most favorable to the non-moving party, we believe that there was proof of protected activity
sufficient to survive summary judgment. In addition to the memorandum itself, these Appellants
testified to participating in HR interviews in which they fleshed out why they perceived racial
discrimination and other civil rights violations. Though HR representatives’ testimony and
written notes may conflict with some Appellants’ testimony about what was discussed, this
presents genuine issues of material fact rather than an impossibility of Appellants’ being able to
prove protected activity.
35
The trial court also noted that filing of the lawsuit at issue here was a protected activity.
However, it concluded there was lack of evidence of adverse actions occurring after the filing of
the lawsuit for many Appellants. In any event, we agree with Appellants that evidence of the
signing and circulation of the memorandum was sufficient to get past summary judgment on the
element of protected activity.
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not having personal knowledge of every item listed in the memorandum. For
example, the trial court noted Ross’s admission in deposition testimony to not
having personal knowledge about specific instances of failure to promote African-
Americans noted in the memorandum. And the trial court viewed “Bledsoe’s HR
interview” as indicating he had “very little knowledge” of the allegations in the
memorandum.36 (Bledsoe/Price Summary Judgment, p. 14.) (Though the basis for
its conclusion that Cowherd did not act in good faith is not discussed in its analysis
on retaliation, other parts of its summary judgment order suggest the trial court
viewed the evidence as showing Cowherd had personal knowledge of only a few
items on the memorandum.) Based on its perception that these Appellants lacked
personal knowledge of the full spectrum of allegations in the memorandum, the
trial court concluded that Ross, Cowherd, and Bledsoe did not act in good faith in
signing the memorandum and that their signing the memorandum was not a
protected activity.
Despite the trial court’s doubts about some Appellants’ having acted
in good faith in signing the memorandum, KRS 344.280 does not contain an
explicit good faith requirement. And precedent clearly states that plaintiffs do not
have to offer affirmative evidence of good faith for retaliation claims to survive a
36
It is unclear whether the trial court is referring to HR’s written notes about Bledsoe’s interview
or deposition testimony about his interview.
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summary judgment motion. Plaintiffs do not even bear the burden of persuading
the fact-finder that they acted in good faith. However, if a defendant raises
allegations of lack of good faith as an issue at trial, “[e]vidence negating good faith
would be relevant to refute the plaintiff’s claim that [he] had actually engaged in
the protected conduct underlying his retaliation claim.” Charalambakis v. Asbury
University, 488 S.W.3d 568, 581 (Ky. 2016). Generally, a plaintiff is only
required to have a reasonable, good faith belief that the employer’s action violated
the KCRA. Id. at 580. If the employer offers sufficient evidence at trial to cast
doubt on the employee’s reasonableness and good faith, a jury question is
presented. Id. at 580-81 (citing e.g., Powell, 486 S.W.3d at 253).
Given that plaintiffs do not have to affirmatively show good faith, and
given the obligation to construe the evidence in the light most favorable to those
opposing summary judgment, the trial court erred in concluding that these
Appellants could not show protected activity. Despite some indications of lacking
personal knowledge of certain specific matters in the memorandum, these
Appellants did not admit to a lack of personal knowledge about every item in the
memorandum – particularly general allegations of racism and verbal abuse.
Instead, each testified to observing or perceiving racism and verbal abuse in certain
contexts, including desirable overtime assignments not being offered to African-
Americans and the use of cursing and racial slurs. At the very least, despite any
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contrary evidence of lack of personal knowledge or good faith which LFUCG may
present at trial, the evidence when construed in Appellants’ favor reveals at least
triable issues about whether they engaged in protected activities.
And despite any issues about their signing the memorandum being
protected activity, these Appellants also offered evidence of participating in the
resulting investigation including being personally interviewed by HR. Thus, they
presented evidence of another protected activity. See KRS 344.280(1) (prohibiting
retaliation for participation in an investigation under the KCRA). So, LFUCG was
not entitled to summary judgment on the basis of lack of protected activity.
Despite its reservations about signing the memorandum being a
protected activity for some Appellants, the trial court seemingly accepted that
LFUCG had knowledge of protected activities, including the signing and
circulation of the memorandum and participation in the resulting investigation. In
short, the element of the defendant having knowledge of protected activity is not at
issue here. However, the trial court perceived that some Appellants could not
prove the next element of adverse employment action.
III. B. 2. Adverse Employment Action
The trial court regarded some allegations of adverse action, such as
being subjected to unsafe working conditions, as unsubstantiated where
Appellants’ testimony was not backed up by others’ testimony. But despite any
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conflicts with others’ testimony or lack of supporting testimony by others,
Appellants’ deposition testimony was under oath and must be considered under CR
56.03. Construing the evidence in the light most favorable to Appellants, they at
least showed genuine issues of material fact on whether such events occurred.
Furthermore, the trial court concluded that some alleged actions did
not qualify as adverse actions due to lack of tangible effect on pay, benefits, and
the like. For example, it concluded that actions, including written reprimands,
increased drug testing, ordering an employee to leave a special event called the
Roadeo, denial of lateral transfer requests, and unrequested lateral transfers, could
not qualify as adverse actions.
We find the trial court erred in applying an overly narrow definition of
adverse action requiring tangible economic effects on pay or benefits, rather than
recognizing that a broader scope of actions might reasonably dissuade reasonable
workers from reporting discrimination. See White, 548 U.S. at 68, 126 S. Ct. at
2415. This is especially true since Appellants articulated in their deposition
testimony how such matters as lateral transfers (requested or not) following
protected activity affected their work experience and ability to perform their jobs
despite lack of direct effect on pay or benefits.
For example, Hicks and others testified to their dismay about having
to continue to work for a supervisor who engaged in discriminatory conduct, or
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their being involuntarily transferred to crews who performed other tasks outside
their areas of expertise. Similarly, Bledsoe testified to emotional distress and
interference with work duties caused by being subjected to increased drug testing.
And Carter testified to the discouraging effect of being sent home early from the
Roadeo special event. Again, even seemingly trivial matters can have an impact
which could dissuade reasonable employees from reporting discrimination
depending on the circumstances. White, 548 U.S. at 69-70, 126 S. Ct. at 2416.
The trial court also rejected allegations of unsafe working conditions
and of difficult or undesirable work assignments as either not qualifying as adverse
actions or as not causally related to protected activity. The trial court noted
evidence of assignments being within one’s general work duties or all employees
within the department being subjected to certain unsafe work conditions such as
having to work in a thunderstorm. Yet, more frequently assigning dangerous,
difficult, or undesirable tasks to employees who have engaged in protected activity,
rather than others who had not so engaged, could dissuade reasonable workers
from reporting KCRA violations. This could be true even if such tasks were within
the employee’s stated work duties.
Under the broader definition of adverse actions applicable to
retaliation claims, each of these Appellants offered evidence of at least one adverse
action. (These adverse actions include suspensions for Carter and Price, increased
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drug testing for Bledsoe, non-promotion and unsafe working conditions for Hicks,
terminations for Bledsoe and Price, and later rescinded terminations/proceedings
for Ross and Cowherd.)
III. B. 3. Causal Connection
Even assuming that each Appellant offered proof of an adverse
employment action, the trial court concluded that each Appellant failed to offer
proof of a causal connection between protected activity and adverse action. The
trial court noted lack of direct admissions from decision-makers that Appellants
were qualified for promotions they sought or that discipline was imposed for
reasons other than those allowed under LFUCG policies.
“Because there is often a lack of direct evidence, proof of a causal
connection can be difficult and requires reliance on inference.” Upchurch, 214
S.W.3d at 915. In this context, temporal proximity – which does not necessarily
mean that adverse action has to occur within days or weeks of the protected
activity – can be used as a factor for inferring causation. See id. at 915-16(concerning claims of retaliation for filing workers’ compensation claims).
Based on several months elapsing between the January 2009
memorandum and adverse actions, the trial court determined there was no temporal
proximity sufficient for inferring causation of adverse actions – actions such as
discipline imposed on Ross, Cowherd, and Carter in July and August 2009. But
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the trial court failed to recognize that these disciplinary actions occurred within
three months of HR’s issuing its May 2009 report stemming from the investigation.
Furthermore, the trial court failed to recognize that time lapse,
standing alone, is not necessarily determinative of causation. Instead, even a time
lapse of several months can convey temporal proximity sufficient to infer causation
– especially with evidence of retaliatory comments. See generally Upchurch, 214
S.W.3d at 916; Kirilenko-Ison, 974 F.3d at 665. And despite erroneously
concluding that Hicks offered no proof of a causal link between protected activity
and adverse action, the trial court noted that Hicks testified to Williams expressing
displeasure about Hicks’s submitting a grievance which could easily be construed
as a retaliatory statement.
In addition to its misperception of temporal proximity concerns, the
trial court also erred in concluding Appellants could not show causal connection
due to lack of direct evidence countering LFUCG’s assertions that disciplinary
actions were in accordance with its policies. For example, the trial court held that
Carter could not show that retaliation for protected activity was “the motivating
factor” for his suspension since “he admitted to all the facts warranting the
suspension.” (Carter Summary Judgment, p. 20.)
Again, Appellants were not required to prove that retaliatory motive
was the only reason for discipline or other adverse action. Powell, 486 S.W.3d at
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260. Construing the evidence in the non-moving parties’ favor, a reasonable fact-
finder could infer retaliatory motives played a part in disciplinary decisions.
Upchurch, 214 S.W.3d at 917 (although evidence was not conclusive, it was
sufficient to allow jury to infer pretext – which essentially means that despite
legitimate reasons asserted by the employer, the plaintiff proved that the action was
at least partially caused by retaliatory motives).
Given that Appellants presented testimony about observing
differences in how LFUCG policies were applied to those who did not sign the
memorandum, there were at least genuine issues of material fact about whether
retaliation was among the causes of discipline and LFUCG was not entitled to
judgment as a matter of law on their retaliation claims. CR 56.03.
III. C. Ratliff’s Retaliation Claims
Next, we address Ratliff’s retaliation claims. Ratliff points out that
over the 2009-2010 time period she submitted both a charge of gender
discrimination and several internal written grievances “complaining of less
favorable treatment than male employees and violations of LFUCG policies.”
Afterwards, she claims she was subjected to retaliatory action including a “barrage
of unwarranted written reprimands and excessive scrutiny by Sam Williams” from
2009 through early 2011 resulting in an intensely “hostile work environment.”
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Ultimately, the trial court granted summary judgment because it
determined, based on the evidence before it, Ratliff could not show adverse
employment action. As an alternate basis for granting summary judgment, it also
determined that Ratliff could not prove a causal connection between protected
activities and an adverse action.
The trial court accepted that Ratliff had engaged in protected
activities. It viewed as a protected activity Ratliff’s 2010 grievance about Brian
Butler’s modified duty assignment “because it was asserted as evidence of gender
discrimination . . . .” (Summary Judgment, p. 13.) The trial court also viewed as
protected activities Ratliff’s October 2009 written grievance about being denied
opportunities to serve as acting supervisor and Ratliff’s December 2009 gender
discrimination charge filed with the EEOC.
Accepting that Ratliff showed protected activities, the trial court did
not expressly discuss whether the employer was aware of these protected activities
– but presumably it was satisfied that there was evidence of employer awareness of
the protected activities.37 Next, the trial court next addressed whether Ratliff could
show adverse employment action based on the evidence and concluded she could
37
Then-SRF Director Sam Williams admitted to at least some awareness of Ratliff’s having filed
internal grievances and an EEOC charge in his deposition. And for purposes of summary
judgment review, the evidence must be viewed in the light most favorable to the non-moving
party. Weickgenannt, 485 S.W.3d at 307.
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not. The trial court recognized that a demotion could constitute an adverse action,
but it concluded any retaliation claim related to Ratliff’s circa-2002 demotion was
now time-barred. Ratliff does not explicitly argue that this particular conclusion is
incorrect in her briefs.
The trial court also rejected Ratliff’s argument that she suffered
adverse action based on her receiving reprimands. It cited Sixth Circuit precedent
which it construed as holding that written reprimands which did not result in
“material adverse consequences” such as lower pay or demotion or suspension
were not considered adverse action in the retaliation context. See Taylor v.
Geithner, 703 F.3d 328, 338 (6th Cir. 2013); Creggett v. Jefferson County Board of
Education, 491 F. App’x 561, 566 (6th Cir. 2012).38
The trial court also concluded that even if reprimands were considered
adverse actions, Ratliff could not show a causal connection between protected
activities and the adverse actions because Ratliff admitted to the conduct
underlying the reprimands and the conduct violated LFUCG policies. And in the
38
The trial court also cited Sixth Circuit precedent indicating that being placed on a performance
improvement plan was not considered adverse action. See Agnew v. BASF Corp., 286 F.3d 307,
310 (6th Cir. 2002); Miceli v. United States Dep’t of Transportation, 83 F. Appx. 697, 700 (6th
Cir. 2003). Ratliff does not specifically discuss authority about whether performance
improvement plans are adverse actions for purposes of KCRA retaliation nor does she point to
evidence of actually being put on a performance plan in her brief – although she cites supervisor
Jack Barnett’s testimony that Sam Williams wanted to put Ratliff on a performance improvement
plan which could result in her termination.
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trial court’s view, Ratliff provided no evidence to support retaliatory intent as
being among the reasons for the reprimands or that “but for the protected activities,
she would not have received written reprimands.” (Summary Judgment, p. 14.)
Ratliff does not directly challenge the trial court’s statements that she
admitted to the conduct at issue or that the conduct violated LFUCG policy.
Instead, she argues the trial court’s definition of adverse action was too narrow and
the trial court erred in requiring her to show retaliation was the sole reason for
adverse actions.
III. C. 1. Adverse Employment Action
Ratliff contends that the trial court failed to consider recent authority
with a more flexible definition of adverse action not requiring actual cuts in pay or
demotions or suspension. For instance, she cites White, 548 U.S. 53, 126 S. Ct.
2405. As we previously discussed, the United States Supreme Court rejected
arguments that adverse action in the Title VII retaliation context required “a link
between the challenged retaliatory action and the terms, conditions, or status of
employment.” Id. at 61, 126 S. Ct. at 2411. But it still concluded that: “[t]he
antiretaliation provision protects an individual not from all retaliation, but from
retaliation that produces an injury or harm.” Id. at 67, 126 S. Ct. at 2414. And it
held: “a plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might
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have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 68, 126 S. Ct. at 2415 (internal quotation marks and
citations omitted). Recognizing the importance of individual circumstances, the
Court discussed how even without direct economic consequences such as lower
pay or benefits, other effects such as the emotional distress caused by certain
employer actions could dissuade a reasonable worker from pursuing discrimination
charges. See id. at 72-73, 126 S. Ct. at 2417.
Ratliff argues that the reprimands issued were adverse actions even if
they did not directly affect her title or pay because they were placed in her
employment file and could prevent her from receiving promotions. And she
submits that even though two of these reprimands were later rescinded, they caused
her emotional distress and should be considered adverse action since they could
dissuade a reasonable worker from filing discrimination charges.
Construing the evidence of record in Ratliff’s favor, she established at
least genuine issues of material fact on whether adverse employment action
occurred, pursuant to recent precedent such as White.
III. C. 2. Causal Connection
Ratliff further argues she was not required to show that retaliatory
intent was the only reason for the adverse action, citing Powell, 486 S.W.3d at 260.
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She also argues the trial court must consider all relevant circumstances, including
closeness in time, in assessing whether evidence might show a causal connection
between protected activity and the adverse action, citing Upchurch, 214 S.W.3d at
916-17 (which also recognizes jury might make inferences in concluding reasons
were pretextual). She cites recent Sixth Circuit precedent recognizing that a prima
facie showing of retaliation should not be difficult to establish, as requirements are
“easily met.” See Kirilenko-Ison, 974 F.3d at 661. We agree; she established at
least genuine issues of material fact on whether there was a causal connection
between her protected activity and adverse action.
Based on our review of this authority and the evidence of record, we
conclude the trial court erred in granting LFUCG summary judgment on Ratliff’s
retaliation claim. Construing the evidence and any ambiguities in Ratliff’s favor,
there were genuine issues of material fact on her retaliation claim and LFUCG was
not entitled to judgment as a matter of law.
III. D. Barnett’s Retaliation Claim
III. D. 1. Protected Activity
Next, we address Barnett’s retaliation claim. The first required
element of a retaliation claim is that a plaintiff engaged in a protected activity. See
Brooks, 132 S.W.3d at 803. Unfortunately for Barnett, the trial court did not
believe he even offered proof of protected activities. Specifically, the trial court
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rejected his argument that three activities were protected activities: 1) his refusal
to issue a performance improvement plan to Ratliff, 2) his filing an age
discrimination charge with the EEOC in November 2010, and 3) his filing a
grievance about Director Williams’s intent to promote another employee. The trial
court perceived the EEOC charge as lacking in specific factual allegations or
anything to corroborate Barnett’s belief he was discriminated against. So, it
concluded the charge was “vague” and “unsupported” and thus not protected
activity. (Summary Judgment, p. 16.)
We agree with Barnett that the trial court erred in determining that the
filing of the EEOC charge could not be considered a protected activity. This is
clearly contrary to the explicit statutory language of KRS 344.280(1) which
prohibits retaliation for making a charge or filing a complaint. Also, case law cited
by the trial court about vague charges of discrimination being unprotected pertains
to vague statements in internal communications with an employer which fail to
clearly oppose unlawful practices and does not suggest that filing an EEOC
discrimination charge is not a protected activity.39 See Booker v. Brown &
39
We further reject any argument that the filed EEOC charge was not protected due to failure to
show good faith. Again, our Supreme Court has held that a plaintiff is not required to plead or
affirmatively prove good faith on a KCRA retaliation claim. Charalambakis, 488 S.W.3d at 580.
Furthermore, “all that is required to obtain retaliation protection under KRS 344.280(1) is that
the employee have a reasonable and good faith belief that the adverse employment practices she
opposed were KCRA violations.” Id. (internal quotation marks and citations omitted). As
Barnett testified to his honest belief that age discrimination had occurred, the filing of the EEOC
charge must be viewed as protected activity at this juncture. Further, case law discussing the
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Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989) (holding “a vague
charge of discrimination in an internal letter or memorandum is insufficient to
constitute opposition to an unlawful employment practice” after noting that
sending a letter to one’s employer was not filing a formal complaint of
discrimination pursuant to statutory procedures); see also Yazdian ConMed
Endoscopic Technologies, Inc., 793 F.3d 634, 645-46 (6th Cir. 2015) (allegations
of “hostile work environment” in internal correspondence amounted to protected
activity, i.e., opposition to unlawful employment practice).
These cases did not establish a specificity requirement for filed EEOC
charges to qualify as protected activity. Rather, they recognized that vague
statements in internal correspondence which did not clearly allege discrimination
might not qualify as a separate protected activity – opposing unlawful practices
under civil rights laws. See KRS 344.280(1) (prohibiting retaliation for filing a
formal complaint or charge of discrimination or for opposing unlawful practices).
Though the trial court subjectively viewed Barnett’s EEOC complaint as vague, we
disagree that the filing of that complaint was not a protected activity.
necessity of showing good faith in KWA cases is not applicable to KCRA retaliation claims due
to different statutory requirement. See, e.g., Thornton v. Office of Fayette County Attorney, 292
S.W.3d 324, 329-30 (Ky. App. 2009).
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Furthermore, Barnett’s refusal to issue a performance improvement
plan for Ratliff must also be regarded as protected activity under KRS 344.280. In
light of his testimony that he perceived a “witch hunt” against Ratliff, his refusal to
issue the performance improvement plan can be construed as opposing an unlawful
practice – retaliation for Ratliff’s own assertions of discrimination. See KRS
344.280(1). Similarly, to the extent that his filing a grievance about the proposed
promotion of another employee could be construed as an allegation of age
discrimination, that would also be a protected activity under the KCRA.
Next, we address Barnett’s argument that he offered evidence of a
causal nexus between his complaint of age discrimination and a series of
retaliatory behaviors over several months beginning shortly after he filed his
complaint. Barnett testified by deposition that after he filed his EEOC age
discrimination charge in November 2010, Williams told Barnett to leave an
engineers’ meeting which he had previously been encouraged to attend and forbade
Barnett from communicating with engineers in December 2010. He also testified
about being reprimanded for clocking out a few minutes early despite having
worked a long shift and receiving approval from his supervisor to clock out early
in January 2011. He further testified to several other actions occurring over the
next few months including: receiving unfair criticism, having supervisory duties
removed, and being placed on a performance improvement plan in March and
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April of 2011. He testified to HR and LFUCG officials ignoring his reports of
these allegedly retaliatory actions as well.
Barnett also testified to receiving an unexplained suspension without
pay in late May 2011 and to receiving the worst annual evaluation of his career at
LFUCG in June 2011. He testified to being told his supervisor was pressured to
sign off on this evaluation but refused to do so. He also testified to being
transferred to the Division of Water Quality in July 2011 and to being told that
Williams had made negative statements about Barnett to Water Quality managers.
He also testified to only learning of secret grievances placed in his personnel file
when deposed in 2013.
He also presented supportive deposition testimony from his supervisor
in 2011 (Tony King) about perceived problems with the discipline imposed on
Barnett. And he presented testimony from King and another employee (Brian
Butler) about Williams saying “I am HR” and making statements about the “Wrath
of Sam” when hearing about Barnett and others alleging discrimination.
Applying more flexible precedent about defining adverse employment
action and construing evidence about temporal proximity and retaliatory
statements, Barnett at least presented genuine issues of material fact on adverse
action and causal connection. Thus, LFUCG was not entitled to judgment as a
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matter of law on his retaliation claim and the trial court erred in granting it
summary judgment.
IV. KWA Claims
Next, we address the KWA claims filed by Appellants. KRS
61.102(1) prohibits an employer’s reprisal against an employee who in good faith
reports to an appropriate authority any facts or information about actual or
suspected waste, fraud, mismanagement, abuse of authority or violation of the law.
The trial court viewed Appellants as trying to re-litigate the same
factual allegations for both KWA and KCRA claims. It opined that when the same
alleged conduct would violate both the KWA and the KCRA, the KWA claims
would be preempted, citing Gryzb v. Evans, 700 S.W.2d 399 (Ky. 1985), and Hill
v. Kentucky Lottery Corporation, 327 S.W.3d 412 (Ky. 2010).
Despite the trial court’s contrary suggestions, a KWA claim would not
necessarily be preempted because it was based on the same facts as a KCRA claim.
Instead, a KWA claim would only be preempted if based on the same law as a
KCRA claim.
Preemption occurs not solely because two claims are based on the
same conduct but because claims are based on the same law. Hill, 327 S.W.3d at
421 (explaining common law wrongful discharge claim in Gryzb was preempted
not because it was based on the same conduct as KCRA sex discrimination claim
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but because both claims were based on the same law and public policy prohibiting
sex discrimination).
Unlike the preempted wrongful discharge claim in Gryzb, the
wrongful discharge claim in Hill was not preempted since plaintiffs did not allege
that their discharge was based on discrimination prohibited by KRS Chapter 344.
Instead, they were discharged for refusing to give false testimony – which would
violate laws and public policy against perjury rather than against discrimination.
Hill, 327 S.W.3d at 422. Because “the statutes that declare the unlawful act of
perjury are not the same statutes that declare and remedy civil rights violations,”
our Supreme Court held that the plaintiffs’ KRS Chapter 344 claims for opposing
discrimination against a disabled employee did not “preempt the Hills’ common
law claims for wrongful discharge based on the public policy against perjured
testimony.” Id. at 423.
Following Gryzb and Hill, it is not whether the claims are based on
the same conduct which determines preemption. Instead, it is whether the same
unlawful acts defined by statutes are at issue. “Where the statute both declares the
unlawful act and specifies the civil remedy available to the aggrieved party, the
aggrieved party is limited to the remedy provided by the statute.” Gryzb, 700
S.W.2d at 401.
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Here, two statutes (KRS 344.280 and KRS 61.102) identify different
unlawful acts. KRS 344.280 declares it illegal to retaliate against someone for
filing complaints or charges of discrimination, opposing unlawful practices under
the KCRA, or cooperating in investigations or hearings about KCRA claims. KRS
61.102 declares it unlawful to subject an employee to reprisal for reporting in good
faith actual or suspected waste, fraud, mismanagement, abuse of authority, or
violation of the law.
No Appellant argues in their brief that KWA claims of retaliation for
filing EEOC discrimination charges would not be preempted by the KCRA. But
all argue that they presented evidence of reprisal for otherwise reporting other
violations of the law, not relating to discrimination or other violations of KCRA, or
for reporting mismanagement, waste, or abuse of authority. For instance, the
January 2009 memorandum alleging favoritism and verbal abuse, in addition to
racism, could be construed as reporting not just discrimination or civil rights
violations, but also general abuse of authority or mismanagement. Similarly,
evidence of various Appellants’ informally reporting how certain crews always
received the most desirable overtime opportunities in verbal communications with
HR can be construed as reporting abuse of authority or mismanagement.
Additionally, Barrell’s and Stewart’s notifying HR and management of Bishop’s
actions could be construed as reporting not just possible sexual harassment, but
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also horseplay and inappropriate verbal comments which not only violated LFUCG
policies but could support findings of abuse of authority or mismanagement. And
both Ratliff and Barnett offered evidence of reporting/disclosing to appropriate
authorities (through HR grievances or otherwise) violations of LFUCG policies not
specifically aimed at combatting discrimination – including alleged violations of
LFUCG’s modified light duty policy and alleged failure to comply with
requirements for HR prequalification of acting supervisors.
The trial court erred in granting LFUCG summary judgment based on
general conclusions that KWA claims were preempted due to being based on some
common factual allegations with KCRA claims. There is, in fact, some evidence
of reports of alleged mismanagement or abuse of authority not based on
discrimination or other KCRA violations.
The trial court generally found KWA claims preempted in some
Appellants’ cases and did not address whether there was evidence of all required
elements of a KWA claim – i.e., in its orders granting summary judgment on the
claims of Hicks, Barrell, Carter, and Stewart. But for some Appellants, the trial
court also concluded they could not prove specific elements of KWA claims.
According to our precedent, showing a violation of KRS 61.102
requires elements including: “the employee made or attempted to make a good
faith report or disclosure of a suspected violation of state or local law to an
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appropriate body or authority” and “the employer took action or threatened to take
action to discourage the employee from making such a disclosure or to punish the
employee for making such a disclosure.” Davidson, 152 S.W.3d at 251. And
though not explicitly recognized in Davidson, a qualifying disclosure could also be
of waste, fraud, mismanagement, or abuse of authority – as plainly provided in the
language of KRS 61.102(1) and as noted in later precedent. See Harper v.
University of Louisville, 559 S.W.3d 796, 803 (Ky. 2018).
Regarding Bledsoe and Price, the trial court acknowledged that their
signing the January 2009 informal memorandum could be construed as a protected
communication. But then it further said that Bledsoe and Price failed to come
forward with evidence that their signing this memorandum was a contributing
factor to the decision to terminate them. However, Bledsoe and Price also
presented evidence of other possible acts of reprisal such as being subjected to
excessive drug testing and being assigned dangerous duties. Furthermore, though
the trial court accepted LFUCG’s explanation that their termination was based
solely on their failure to exercise their options after exhausting light duty limits, a
reasonable fact-finder might not in any way share this view. Again, the trial court
may not decide issues of fact at the summary judgment stage. Instead, it must
determine if there are genuine issues of material fact while viewing the evidence in
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the light most favorable to Bledsoe and Price and resolving any doubts in their
favor. Steelvest, 807 S.W.2d at 480.
Similar to its discussion of Bledsoe’s and Price’s retaliation claims,
the trial court also concluded there was no evidence the protected activity (signing
the memorandum) prompted Williams’s decisions to discipline Ross and Cowherd.
The trial court further stated:
Sam Williams had a legitimate explanation for his
decision to discipline Ross and Cowherd for their actions
in July and August 2009 and the evidence in the record
that his explanation was pretext for retaliation in
violation of KRS 61.102 does not rise to a preponderance
of the evidence standard . . . .
(Ross/Cowherd Summary Judgment, p. 15.) But the trial court should not have
resolved whether parties had fully proved their cases when ruling on summary
judgment motions by weighing the evidence and making credibility
determinations. Steelvest, 807 S.W.2d at 480. Instead, it should have construed
the evidence in the non-moving parties’ favor and it should have determined
whether genuine issues of material fact remained for trial. Id. at 482-83.
As for Barnett, the trial court did recognize that at least some facts
alleged by Barnett would relate to a KWA claim rather than a KCRA claim. In
particular, the trial court noted Barnett’s deposition testimony about expressing his
disagreement with Williams’s intent to promote Brian Butler and his asking the
mayor’s office if public employees were permitted to loan equipment to and to
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otherwise assist private contractors. Acknowledging that this conduct could be
construed as whistle-blowing, the trial court determined his KWA claim still could
not survive summary judgment for failure to prove other requirements of KWA
claims. It characterized what he reported as not a violation of the law and it
perceived a lack of evidence that those involved in suspending him or otherwise
retaliating against him knew of his reports. See Davidson, 152 S.W.3d at 251(listing required elements of KWA claims as including employee’s good-faith
reporting or disclosure of “actual or suspected violation of the law” and employer’s
threatening to or actually taking actions to discourage the disclosure or punish the
employee for the disclosure).
Though what Barnett allegedly reported may not have technically
been a violation of any particular law, as he cites no ordinance or regulation
establishing LFUCG’s policies, the alleged communications might still be
reasonably construed as reporting actual or suspected waste, fraud, abuse of
authority or mismanagement. See KRS 61.102(1). And this is especially so when
properly construing the evidence in his favor for summary judgment purposes.
Furthermore, though Barnett may not have presented direct evidence
of Williams or other decision-makers being aware of his reports, a fact-finder
could reasonably infer awareness based on temporal proximity and other factors.
Construing the evidence and all ambiguities in Barnett’s favor, he at least showed
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genuine issues of material fact on his KWA claim and LFUCG was not entitled to
judgment as a matter of law.
Properly construing the evidence in the non-moving parties’ favor,
genuine issues of material fact existed and LFUCG was not entitled to summary
judgment on Appellants’ KWA claims. Thus, the trial court erred in granting
LFUCG summary judgment on KWA claims.
V. Count XI of Complaint
Lastly, having determined that the trial court erred in granting
LFUCG summary judgment on other claims, we review its grant of summary
judgment in LFUCG’s favor on Count XI in Appellants’ complaint. In Count XI
of the Complaint, the plaintiffs “individually, severally and jointly” alleged a
“common pattern and practice” of both discrimination and retaliation violating the
KCRA and of reprisal violating the KWA. (R., pp. 42-43.) Appellants declared:
“Plaintiffs do hereby adopt and incorporate, individually and collectively, the
averments contained in this Complaint in their entirety, the same as set forth at
length in each count hereinabove.” (R., p. 43.) (Each of the preceding ten counts
of the complaint set forth allegations specific to one plaintiff.)
LFUCG filed a separate motion for summary judgment on Count XI
as to all Appellants, in addition to filing separate summary judgment motions
concerning all claims filed by each individual Appellant. The trial court did not
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separately issue an order on the motion for summary judgment on Count XI, but
instead granted LFUCG summary judgment on Count XI within its order granting
LFUCG summary judgment on Ross’s and Cowherd’s claims.
LFUCG argued Appellants could not prevail on claims of systemic
disparate treatment, sometimes called pattern or practice claims, because
Appellants did not present statistical evidence. Appellants denied asserting
“disparate impact” although they acknowledged presenting “examples” of
“disparate treatment.”40 They stated these examples of disparate treatment were
only “part of the much broader claims of hostile work environment” asserted by
each Appellant based on race, gender, or age and based on improper retaliation for
reporting discrimination and actual or suspected violation of the law. (R., pp. 604-
05.) They argued Count XI must be “analyzed pursuant to applicable law for
hostile work environment.” (R., p. 605.)
Plaintiffs cited authority which suggested it would be appropriate to
allow aggregated review of multiple plaintiffs’ hostile work environment claims
for summary judgment purposes under certain circumstances, even if some
40
“Title VII prohibits both intentional discrimination, known as ‘disparate treatment,’ as well as,
in some cases, practices that are not intended to discriminate but in fact have a disproportionately
adverse effect on minorities, known as ‘disparate impact.’” 45C AM. JUR. 2d Job Discrimination
§ 2294 (2022). Claims for and methods of proving systemic disparate treatment claims are
discussed in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 334-39, 97
S. Ct. 1843, 52 L. Ed. 2d 396 (1977).
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allegedly hostile acts were not directed toward or witnessed by each plaintiff. See
Berryman, 669 F.3d at 717-19.
Plaintiffs also argued that Kentucky law employed a flexible “totality
of the circumstances” approach to analyzing whether a work environment was
hostile rather than analyzing each individual’s circumstances separately, citing
Lumpkins, 157 S.W.3d at 605. They contended their claims were appropriately
joined based on commonality of their assertions of hostile work environment –
pointing out all ten plaintiffs asserted a hostile work environment based on
retaliation and seven plaintiffs also alleged a racially hostile work environment.
In granting summary judgment for LFUCG on Count XI, the trial
court interpreted Berryman as not allowing the plaintiffs to create a separate joint
legal claim based on all of their individual allegations – especially without proof
that they were all aware of each other’s experiences.41
41
In granting LFUCG summary judgment on Count XI, the trial court stated:
Plaintiffs’ Count XI improperly combines all the Plaintiffs [sic] claims of hostile
work environment into a claim that LFUCG had created a hostile work
environment through their patterns and practices. However, under the analysis of
Berryman, the Plaintiffs can properly aggregate the facts under each individual
Plaintiff’s claim if they knew of each other’s experiences. As the Berryman
opinion describes, they cannot, however, create a separate legal claim using all of
the claims of all the Plaintiffs, without regard to whether they knew of each
other’s experiences. Id. Ross and Cowherd have failed to establish they were
aware of the facts supporting claims involving other plaintiffs. Thus, their claims
under Count XI fail and LFUCG is entitled to judgment as a matter of law.
(Ross/Cowherd Summary Judgment, p. 16.) The trial court did not explicitly discuss Count XI
in its orders granting LFUCG summary judgment on the other Appellants’ claims.
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Appellants generally argue in their briefs that they alleged a pattern or
practice of discrimination, retaliation, and reprisal; and that the trial court erred in
granting summary judgment to LFUCG on Count XI. Without further discussion,
they simply cite case law including Berryman, 669 F.3d 714, and McCullough, 123
S.W.3d 130 to support their allegations of error.42
In McCullough, our Supreme Court expressed no disapproval about
the trial court’s allowing the sole plaintiff to present evidence of not being
promoted several times outside the statute of limitations as part of showing a
pattern or practice of retaliation. Id. at 135-36. So, it seemingly approved the
decision to admit that evidence – of incidents directly affecting the sole plaintiff –
to show a pattern or practice of retaliation.43 But McCullough did not pose any
42
Appellants do not specifically argue any error in dismissing any claim for systemic disparate
treatment nor in not employing the burden-shifting approach applicable to systemic disparate
treatment claims referred to as the pattern or practice method of proof. See generally Teamsters,
431 U.S. at 324, 97 S. Ct. at 1848.
43
In a case involving multiple plaintiffs, this Court upheld a judgment based on a jury verdict in
plaintiffs’ favor on claims of racially hostile work environment and held that challenged
evidence was properly admitted for purposes including to show: “a pattern and practice of
adverse treatment, racial hostility, discrimination and retaliation – a purpose approved by our
Supreme Court.” United Parcel Service, Inc. v. Barber, 557 S.W.3d 303, 311 (Ky. App. 2018)
(citing McCullough, 123 S.W.3d at 135-36). Other than noting this challenged evidence also
showed that “incidents of racial animus” were brought to the employer’s attention and that it
undermined any defense of the employer’s exercising reasonable care to prevent and correct
harassment, our analysis in Barber does not discuss the challenged evidence in detail. Id. at 311.
Notably, Barber does not specifically discuss whether and under what circumstances the
individual plaintiffs were entitled to consideration of evidence of harassing acts directed toward
their co-plaintiffs to support their own hostile work environment claims.
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issues about whether multiple plaintiffs in the same lawsuit could obtain
aggregated consideration of all evidence of harassing acts directed at all of them
for summary judgment purposes – unlike these appeals or the Berryman case cited
by Appellants.
According to Berryman, “a plaintiff does not need to be the target of,
or a witness to harassment in order for us to consider that harassment in the totality
of the circumstances; but he does need to know about it.” 669 F.3d at 718
(emphasis added). The Sixth Circuit majority declined to presume that all
plaintiffs were aware of all harassing conduct not directed to them individually –
even offensive displays placed in communal areas. But it indicated that direct
evidence of secondhand awareness of harassment towards others of the same
protected class could be considered to support hostile work environment claims.44
Id. at 719-20. Ultimately, it affirmed the trial court’s denial of aggregated review
of all co-plaintiffs’ evidence of harassment for summary judgment purposes based
on a lack of evidence – such as deposition testimony or written documents –
showing that all plaintiffs were aware of allegedly harassing acts directed towards
their co-plaintiffs. Id. at 720.
44
Citing other Sixth Circuit authority (Quanex, 191 F.3d at 661), this Court has similarly
recognized that evidence of secondhand awareness of harassment directed towards others of the
same protected class should be considered to support hostile work environment claims. See
Morton, 2019 WL 3059899, at *4; Yancey, 2004 WL 323352, at *6.
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While Appellants’ argument about why the trial court erred in
dismissing Count XI is not a model of clarity, each Appellant was entitled to
consideration of evidence of acts directed at other Appellants to support his/her
individual claims. This is consistent with our Supreme Court’s approval of broadly
admitting evidence of a pattern or practice of discrimination and/or retaliation in
McCullough. This also follows its directive in Lumpkins that “individual
circumstances” should not be “disaggregated” and that incidents should not be
assessed in isolation but together to determine whether a hostile work environment
was created. 157 S.W.3d at 605.
As the trial court discussed Count XI as a hostile work environment
claim, we need not reach LFUCG’s argument that Appellants could not succeed on
claims of systemic disparate treatment or disparate impact. Appellants denied
making these types of claims in trial court proceedings and asserted that Count XI
was a hostile work environment claim.
We do not recognize any novel type of joint or collective hostile work
environment claim in this non-class action. But we agree with Appellants’
assertion the trial court must consider evidence of acts of harassment directed at
other employees of the same protected class – especially those which they testified
to being aware of – to support their individual claims of hostile work environment.
See, e.g., Lumpkins, Berryman, Quanex. So, the trial court erred in summarily
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dismissing Count XI and we reverse its summary judgment on Count XI, as well as
the summary judgments granted on each Appellant’s other claims.
Any other arguments or issues raised in the briefs which we have not
discussed in this lengthy Opinion have been deemed to lack merit or relevance to
our resolving these appeals.
CONCLUSION
For the reasons stated herein, we reverse and remand for further
proceedings in conformity with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEFS FOR APPELLEE:
Debra Ann Doss Robert L. Roark
William L. Davis Lexington, Kentucky
Lexington, Kentucky
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