Larry Wilson v. Michael Bosse ( 2020 )

RENDERED: DECEMBER 11, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1800-MR
LARRY WILSON APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT
v. HONORABLE JEREMY MICHAEL MATTOX, JUDGE
ACTION NO. 18-CI-00060
MICHAEL BOSSE; CITY OF
GEORGETOWN, KENTUCKY; AND
MEGAN MILLER APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, KRAMER, AND MAZE, JUDGES.
KRAMER, JUDGE: Larry Wilson appeals from an order and judgment of the
Scott Circuit Court summarily dismissing his claims of age discrimination,
retaliation, and hostile work environment against appellees Michael Bosse, Chief
of the Georgetown City Police Department (“GCPD”); City of Georgetown,
Kentucky; and Megan Miller, Director of Human Resources for the City of
Georgetown, Kentucky. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Wilson was hired as a police officer by GCPD on or about September
1, 2010. He was forty-two (42) years old at the time. In 2012, he became a
detective and in 2014, was promoted to the position of sergeant. He remained a
sergeant until his resignation in December 2017.
The record before us shows that in approximately 2016, Wilson began
secretly making audio recordings of various interactions with other employees and
his superiors. This was an attempt by Wilson to capture what he alleges was
derogatory name-calling regarding his age “[o]n a nearly daily basis”1 from his
colleagues and superiors at GCPD. On or about April 1, 2016, Wilson sent an
email to then-Captain Robert Swanigan stating that he was preparing to file a
complaint with the federal Equal Employment Opportunity Commission (“EEOC”)
“on the never ending harassment and discrimination.”
Shortly after notifying Swanigan of his intention to file the EEOC
complaint, Wilson received a letter of counseling. The letter concerned a closed-
door meeting in February 2016, when Wilson stated in front of other employees
1
See Appellant’s brief, page 2.
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and his lieutenant that he believed another employee received a “chicken shit”
write-up as a disciplinary measure. He filed his EEOC complaint in July 2016.
Wilson faced disciplinary action in November 2016, when he was
suspended for two days without pay for failure to follow specific instructions from
Miller about treatment for an elbow injury that occurred on the job. On November
30, 2016, Wilson’s EEOC complaint was dismissed, and he received notice of a
right to sue in federal court. He opted not to bring action in federal court. Wilson
received another letter of counseling on May 31, 2017, for leaving the scene of
what was eventually charged as an attempted murder and for failure to call
GCPD’s Criminal Investigation Section (“CIS”) to the scene.
In October 2017, Wilson filed a formal grievance with Miller. Bosse
responded to the grievance consistent with GCPD policy and procedure. Having
received an unsatisfactory result, Wilson appealed the grievance. Miller testified
that Wilson’s communication and responses given during the appeal made her
conclude that she believed Wilson’s employment should be terminated. On
November 20, 2017, Wilson was presented with multiple disciplinary charges of
unsatisfactory service and insubordination and also received a notice of hearing.
Wilson retained counsel who negotiated the terms of Wilson’s resignation in lieu
of termination. Thus, a hearing was not held. Wilson resigned from GCPD on
December 8, 2017. He filed a complaint in the Scott Circuit Court on February 12,
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2018, alleging a hostile work environment, age discrimination, and retaliation.
Discovery ensued, and the appellees herein motioned the circuit court for summary
judgment, which was granted. This appeal followed. Further facts will be
developed as necessary.
STANDARD OF REVIEW
When a trial court grants a motion for summary judgment, the
standard of review for the appellate court is de novo because only legal issues are
involved. Hallahan v. The Courier Journal, 138 S.W.3d 699, 705 (Ky. App.
2004).
Summary judgment is appropriate where “the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” CR2 56.03.
The movants bear the initial burden of demonstrating that there is no genuine issue
of material fact in dispute. The party opposing the motion then has the burden to
present, “at least some affirmative evidence showing that there is a genuine issue
of material fact for trial.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807
S.W.2d 476, 482 (Ky. 1991). A party responding to a properly supported summary
judgment motion cannot merely rest on the allegations in his pleadings.
2
Kentucky Rule of Civil Procedure.
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Continental Casualty Co. v. Belknap Hardware & Manufacturing Co., 281 S.W.2d
914 (Ky. 1955). “[S]peculation and supposition are insufficient to justify a
submission of a case to the jury, and . . . the question should be taken from the jury
when the evidence is so unsatisfactory as to require a resort to surmise and
speculation.” O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (quoting
Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)).
On appeal, we must consider the evidence of record in the light most
favorable to the non-movant (i.e., Wilson) and must further consider whether the
circuit court correctly determined that there were no genuine issues of material fact
and that the moving parties were entitled to judgment as a matter of law. Scifres v.
Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
ANALYSIS
I. Age Discrimination Claim
Pursuant to KRS3 344.040(1)(a), which is part of Kentucky’s Civil
Rights Act (“KCRA”), and consistent with Title VII of the 1964 Federal Civil
Rights Act, 42 U.S.C. § 2000e-2(a)(1), it is unlawful for an employer to “fail or
refuse to hire . . . any individual, or otherwise to discriminate against an individual
with respect to compensation, terms, conditions, or privileges of employment,
because of the individual’s race, color, religion, national origin, sex, [or] age forty
3
Kentucky Revised Statute.
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(40) and over[.]” The Kentucky Supreme Court has “consistently interpreted the
civil rights provisions of KRS Chapter 344 consistent with the applicable federal
anti-discrimination laws.” See Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492,
495 (Ky. 2005) (citations omitted).
In establishing a discrimination case, a plaintiff must satisfy the
burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973). This burden-shifting approach allows a victim of
discrimination to establish a case through inferential and circumstantial proof in
the absence of any direct evidence of discriminatory animus. Williams, 184
S.W.3d at 495. Under the McDonnell Douglas analysis, Wilson can establish a
prima facie case of discrimination by showing: (1) he was a member of a
protected class; (2) he was discharged or suffered an adverse employment action;4
(3) he was qualified for the position; and (4) he was replaced by a person outside
4
“An adverse employment action has been defined as ‘a materially adverse change in the terms
and conditions of [a plaintiff’s] employment.’ White v. Burlington N. & Santa Fe Ry. Co., 364
F.3d 789, 795 (6th Cir. 2004) (en banc) (citation omitted). A ‘bruised ego’ or a ‘mere
inconvenience or an alteration of job responsibilities’ is not sufficient to constitute an adverse
employment action. Id. at 797. Adverse employment actions are typically marked by a
‘significant change in employment status,’ including ‘hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a significant
change in benefits.’ Id. at 798 (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S.
Ct. 2257, 141 L. Ed. 2d 633 (1998)).” Spees v. James Marine, Inc., 617 F.3d 380, 391 (6th Cir.
2010).
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of the protected class (here, this would be a person of substantially younger age).5
Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). Only if a plaintiff
establishes all four elements of a prima facie case does the burden shift to the
employer. The employer must then rebut the presumption of discrimination by
proffering a legitimate, nondiscriminatory reason for its decision. Thereafter, the
burden shifts back to the plaintiff, who then bears the burden of showing, by a
preponderance of evidence, that the employer’s proffered reason is pretextual and
that he is the victim of intentional discrimination. Walker v. Commonwealth, 503
S.W.3d 165, 174 (Ky. App. 2016).
Wilson points to three instances in his argument that GCPD
discriminated against him based on age.6 First, he argues he was removed from the
Special Response Team (“SRT”) in September 2014. We agree with the circuit
court that Wilson failed to establish a prima facie case of discrimination related to
this claim. Wilson was over age 40 when he left the SRT; however, he left
voluntarily because he claimed he could no longer afford the necessary tactical
equipment. During his absence from SRT, GCPD implemented a change in policy
wherein GCPD began to provide tactical gear to SRT members. After being off
5
Williams, 184 S.W.3d at 496.
6
See pages 3-4 of Wilson’s brief. In the underlying action, Wilson also argued that he was
discriminated against when he was denied the opportunity for certain trainings. He does not
repeat that argument to this Court.
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SRT for nine months to a year, Wilson reapplied. He was told he would need to
undergo retraining. Wilson argues that younger employees were treated differently
and points to circumstances of another GCPD officer to show that, but for his age,
he would have been permitted to rejoin SRT without additional training. Wilson’s
argument fails. GCPD Officer Valdez also left SRT, but he was permitted to
return just thirty-six hours after his departure. The fact that Valdez is substantially
younger than Wilson is irrelevant in light of the fact he was off SRT for just a few
days while Wilson was away for almost one year. Regardless, Wilson left SRT
voluntarily. He therefore fails to establish a prima facie case, and our inquiry stops
there.
Wilson’s second argument is that GCPD twice failed to “promote”
him to CIS sergeant as a result of age discrimination. We again agree with the
circuit court that Wilson failed to establish a prima facie case. This is because the
record before us shows that it would not have been a promotion for Wilson, but
rather a lateral change within the department. The job title of “sergeant” would
have remained the same. Wilson’s subjective belief that the position was a
promotion has no basis in fact or law. Indicators of a promotion are “increased
salary, significantly changed responsibilities, a more distinguished title, or a gain
in benefits.” Mitchell v. Vanderbilt University, 389 F.3d 177, 183 (6th Cir. 2004).
Wilson’s “subjective impression concerning the desirability of one position over
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another generally does not control with respect to the existence of an adverse
employment action.” Id. As the circuit court pointed out, Wilson still had an
opportunity for overtime, and there was no change in salary or title. While Wilson
claimed the position of CIS sergeant was a more prestigious position, he failed to
identify why, other than his subjective belief. Moreover, Wilson did not suffer a
loss of prestige or a material change in duties within GCPD by failing to receive a
lateral transfer. See Brooks v. Lexington-Fayette Urban County Housing
Authority, 132 S.W.3d 790, 803 (Ky. 2004) (emphasis added) (“A material
modification in duties and loss of prestige may rise to the level of adverse
action.”). Such was not the case when Wilson did not receive the lateral transfer.
Finally, Wilson argues that he was wrongfully terminated in the form
of constructive discharge. Wilson argues that he was left with no choice but to
resign because it was a “foregone conclusion” he would have been terminated
following the hearing scheduled before Georgetown Mayor Tom Prather. We
disagree.
“The commonly accepted standard for constructive discharge is
whether, based upon objective criteria, the conditions created by the employer’s
action are so intolerable that a reasonable person would feel compelled to resign.”
Northeast Health Management, Inc. v. Cotton, 56 S.W.3d 440, 445 (Ky. App.
2001) (internal quotation marks and citation omitted). Wilson’s attorney at the
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time negotiated the terms of Wilson’s resignation. Emails between Wilson’s
counsel and Andrew Hartley, attorney for the City of Georgetown, demonstrate
Wilson’s full participation in negotiating the terms of his resignation. Had those
terms not been acceptable to either party, Wilson was ready to move forward with
the hearing; he had noted his intent to call ten to fifteen witnesses to refute the
charges against him. In its order granting summary judgment, the circuit court also
noted an audio recording of the resignation meeting in which Wilson stated that he
was happy working for Bosse “90% of the time.” We agree that this further
supports appellees’ claim that Wilson’s resignation was voluntary.
Wilson failed to establish a prima facie case for any of his allegations
related to age discrimination. There were no genuine issues of material fact, and
the circuit court ruled accordingly. We discern no error.
II. Retaliation Claim
Wilson claims he was subject to five types of adverse employment
actions in retaliation for filing the EEOC complaint: (1) written reprimands; (2)
having his unmarked car taken away; (3) suspension for two days without pay; (4)
having his authority to make independent criminal charges taken away; and (5)
termination/constructive discharge.
The McDonnell Douglas scheme is applicable to retaliation claims. A
prima facie case of retaliation requires a plaintiff to demonstrate: (1) that the
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plaintiff engaged in protected activity; (2) that the exercise of his civil rights was
known by the defendant; (3) that, thereafter, the defendant took an employment
action adverse to the plaintiff; and (4) that there was a causal connection between
the protected activity and the adverse employment action. Brooks, 132 S.W.3d at
803. The burden then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the decision. The employee must then show that “but
for” the protected activity, the adverse employment action would not have
occurred. Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 701 (Ky.
App. 1991); Asbury Univ. v. Powell, 486 S.W.3d 246, 254 (Ky. 2016).
We agree with the circuit court that Wilson satisfied the first two
elements of his prima facie case for each alleged instance of retaliation. He
threatened to file an EEOC complaint and eventually did so. Bosse and Miller
knew of the complaint. However, we also agree with the circuit court that Wilson
failed to meet the remaining requirements of his prima facie case for each instance
of alleged retaliation, although for slightly different reasons than the circuit court.
We first turn to Wilson’s assertion that he received written
reprimands. In his complaint, Wilson stated that he received a letter of counseling
regarding his “chicken shit write-up” comment. This is supported by the record
before us. On March 31, 2016, Captain Ronnie L. Wagoner sent a letter to Wilson
asking him to explain the comment in writing. On April 7, 2016, Bosse sent what
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was deemed a letter of counseling to Wilson regarding the same incident. Then, on
May 30, 2017, Assistant Chief Robert Swanigan sent a letter of counselling to
Wilson for leaving the scene of a crime that was eventually charged as an
attempted murder without calling CIS.
KRS 15.520(1)(c) defines disciplinary action against a police officer
as “termination, demotion, a decrease in pay or grade, suspension without pay, and
a written reprimand[.]” In his deposition, Bosse described discipline of police
officers thusly:
A: Well, the Kentucky Revised Statute defines discipline
for police officers in the Commonwealth of Kentucky.
And the four areas of discipline are written reprimand, a
suspension, a demotion, or termination. Those are the
only options available to a police agency to invoke
punishment on a police officer—discipline on a police
officer.
....
A: Okay. The KRS provides that. And when you
invoke discipline in an officer if it’s an agency-related,
policy-related issue that’s police-oriented, the police
officer’s bill of rights kick in and [KRS 15.520] becomes
applicable. There is no KRS—or there never has been—
and even in the case law that I’ve read for Kentucky,
you’re still allowed to correct your people and you’re still
allowed to counsel your people.
And so there is a training element each time you
see an issue with an officer that you can sit down and talk
to the officer about the issue. That is not discipline. You
can even write it down so that you remember what the
incident was and that is not discipline. Those are both
counseling sessions that are based in training.
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So there’s a difference between those two and then
the formal process that actually invokes police discipline.
Q: And as far as what goes in the officer’s file that you
all keep at the Georgetown Police Department, of those
things you mentioned, what goes in the officer’s file?
Like, for example, there’s some documents, we may look
at some of them, which say something like this will stay
in the officer’s file for six months or whatever, how does
that work?
A: Right. There is a personnel file that is kept in HR.
And that is their permanent personnel file. And any time
there is formal discipline meted out by the mayor, then
that documentation goes into that form.
Anything short of formal discipline stays at the
police department. It can stay in the sergeant’s file, it can
stay in the sergeant’s desk, but we keep that—if it’s—if
it’s written down we keep it for a certain period of time
to say we’re going to be doing follow-up for this period
of time on this particular issue.
We reject Wilson’s attempt to now characterize the letters of
counseling as either a written reprimand under KRS 15.5207 or an adverse
employment action that would qualify as retaliation.
A “bruised ego” or a “mere inconvenience or an
alteration of job responsibilities” is not sufficient to
constitute an adverse employment action. Adverse
employment actions are typically marked by a
“significant change in employment status,” including
“hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision
causing a significant change in benefits.”
7
Miller also testified in her deposition that Wilson was not disciplined over the issues he claims.
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Spees, 617 F.3d at 391 (citations omitted). We agree with the circuit court that
these letters did not rise above the level of mere inconvenience to Wilson.
Accordingly, Wilson failed to establish a prima facie case on this claim.
Wilson’s second argument is that he was retaliated against when his
unmarked police cruiser was changed to a marked cruiser. Again, Wilson’s
argument is based on his subjective belief that an unmarked cruiser is more
desirable. We agree with the circuit court’s reasoning and incorporate it herein:
It is Wilson’s subjective belief that this is a demotion, but
there is no change in pay or title, and no material changes
to his job responsibilities. Without more than a
diminution of prestige, the employment action is not
adverse. [GCPD] still provided a patrol vehicle to
Wilson. The markings or lack thereof on the vehicle
does [not] classify as adverse in an unlawful retaliation
claim
Additionally, even though the timing of the
reassignment could be considered suspect—a month after
EEOC filing—there is no causal link established. Even if
the reassignment of work vehicles could classify as
adverse, Wilson has failed to show that the retaliatory
conduct would [not] have occurred “but for” his
engaging in protected activity. Bosse explained that
Wilson was randomly selected for reassignment to a
marked patrol car[8] to further [GCPD’s] objective of
increasing visibility of the Department in Georgetown.
Wilson failed to counter the alternative, non-retaliatory
purpose for the action.
8
Wilson was among five officers who were randomly selected for reassignment to a marked
patrol car.
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(Citations omitted.)
Hence, Wilson again failed to meet his burden of establishing a prima
facie case of retaliation related to reassignment of his patrol car.
Wilson next argues that his two-day suspension was retaliatory in
nature. Here, Wilson satisfies the first three prongs of his prima facie case. He
filed an EEOC complaint; Miller knew of the complaint when she recommended
suspension to Mayor Prather; and suspension without pay qualifies as a
disciplinary measure and/or an adverse employment action. However, Wilson fails
to establish a causal connection between his EEOC complaint and his suspension.
The record before us shows that Wilson emailed Miller on November 17, 2016.
His email began with “Good Morning[,] I have a quick question or two. I bashed
my elbow at work on Tuesday night.” He then asks Miller about seeing to his
elbow “at the clinic.” Miller responded, in part, that “[t]he Balanced Care clinic
we spoke about during open enrollment is not for work-related injuries.” Miller
then gave Wilson very specific and detailed instructions about what to do to
address and treat his elbow injury. Wilson responded that he understood.
However, Wilson sought treatment of his elbow injury at the Balanced Care Clinic,
in direct contravention of Miller’s instructions. We agree with the circuit court
that there is no evidence whatsoever that Wilson was suspended for any other
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reason than violation of Miller’s direct instructions. Wilson has again failed to
establish a prima facie case of retaliation.
Wilson argues that his independent authority to make charges was
removed by GCPD as retaliation for his filing of the EEOC complaint. While
Wilson lists this allegation, his subsequent argument is scant at best, arguing only
that the circuit court viewed the incident “in a vacuum.” We are unpersuaded that
Wilson’s characterization of the incident qualifies as an adverse employment
action. The record contains an email from Assistant Chief Robert Swanigan to
Wilson dated October 19, 2017, regarding a domestic violence incident that had
taken place on North Broadway in Georgetown. Wilson was dissatisfied with the
handling of the incident and insisted that the case was an attempted murder rather
than misdemeanor assault in the fourth degree. Assistant Chief Swanigan’s email
states, in relevant part,
[i]t is clear from your emails that you need further
assistance in handling these type situations. There are no
two incidents that are exactly alike and our responses do
not depend on a cookie cutter mold type match. Each
incident is different and each must be evaluated on its
own set of circumstances. In order to provide you the
appropriate level of assistance in making these decisions
and to help you apply agency resources without
confusion or frustration we have spoken with Lieutenant
Wagoner and will implement a plan to help develop your
skills in these areas. Effective immediately, please
consult with Lt. Wagoner on crime scenes where you are
debating on calling out other agency resources and he
will assist you in making these decisions. When other
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resources are needed he will provide guidance on the
most productive means for doing so. It is our intention
that this plan help provide you the skills for making these
decisions and the best means for requesting the resources.
We will periodically follow up with Lt. Wagoner.
The email does not qualify as discipline under KRS 15.520. Not only
is it not a written reprimand, it is even less formal than the letters of counseling
which appear in the record on GCPD letterhead. Although Wilson’s ego was
likely bruised, there was no adverse employment action. Even if the email could
be construed as such, Wilson fails to establish a causal connection due, in part, to
the passage of time between the filing of his EEOC complaint and the email from
Assistant Chief Swanigan.
While there is no hard time frame, the Kentucky Supreme Court has
held that four months between the protected activity and the adverse employment
action was “too long to create, by itself, an inference of causality.” Brooks, 132
S.W.3d at 804.9 More than one year had passed between Wilson’s filing of the
EEOC complaint and the North Broadway incident. Further, the email from
9
“In cases where there is no direct evidence of a causal connection, the causal connection of a
prima facie case of retaliation must be established through circumstantial evidence. Nguyen v.
City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000). Circumstantial evidence of a causal
connection is ‘evidence sufficient to raise the inference that [the] protected activity was the likely
reason for the adverse action.’ Id. at 566. In most cases, this requires proof that (1) the decision
maker responsible for making the adverse decision was aware of the protected activity at the
time that the adverse decision was made, and (2) there is a close temporal relationship between
the protected activity and the adverse action.” Brooks, 132 S.W.3d at 804.
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Assistant Chief Swanigan shows that he was addressing only Wilson’s response at
the North Broadway incident in October 2017. Accordingly, Wilson failed to
establish a causal connection and failed to establish a prima facie case related to
this claim.
Finally, Wilson again claims that he was constructively discharged as
retaliation. In his argument to this Court, Wilson does not distinguish which facts
surrounding his resignation he believes were retaliatory and which were
discriminatory based on age. As previously addressed herein, we agree with the
circuit court that Wilson was not constructively discharged; we decline to revisit
the issue now.
III. Hostile Work Environment
Wilson claims that “he was on the receiving end of insults and taunts
related to his age (i.e., ‘the old man’) on a near daily basis.”10 He claims ridicule
regarding his age affected him to the point that he experienced stress, lost weight,
had trouble eating and sleeping, and dreaded going to work.
Once again, Wilson must demonstrate a prima facie case for his claim
of a hostile work environment by showing: (1) he was 40 years or older; (2) he
was subjected to harassment, either through words or actions, based on age; (3) the
harassment had the effect of unreasonably interfering with his work performance
10
See Appellant’s brief, page 6.
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and creating an objectively intimidating, hostile, or offensive work environment;
and (4) there exists some basis for liability on the part of his employer. Crawford
v. Medina General Hosp., 96 F.3d 830, 834-35 (6th Cir. 1996).
The Kentucky Supreme Court has ruled that “hostile environment
discrimination exists ‘when 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) (citation omitted). “Whether the harassment is severe and
pervasive is determined by a totality of the circumstances test—circumstances
including frequency and severity of the conduct, whether the conduct is physically
threatening or humiliating, and whether it unreasonably interferes with the
employee’s work performance.” Gray v. Kenton County, 467 S.W.3d 801, 805
(Ky. App. 2014) (citation omitted). The harassment must be both objectively and
subjectively offensive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct.
367, 371, 126 L. Ed. 2d 295 (1993).
We agree with the circuit court that Wilson failed to establish his
prima facie case, although for slightly different reasons.11 Wilson failed to
11
It is well settled that an appellate court may affirm a lower court for any reason supported by
the record. See, e.g., Kentucky Farm Bureau Mutual Insurance Co. v. Gray, 814 S.W.2d 928,
930 (Ky. App. 1991).
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establish that he was subject to harassment. He does not dispute that, in over one
hundred hours of recorded interaction at GCPD, there are only two instances where
a fellow employee referenced his age.12 The first occurred on or about January 15,
2015, when Wilson was receiving praise from Lieutenant Phil Halley and called a
“father figure” to other officers.13 The second instance occurred on or about
February 22, 2016, during a forty-three-minute recorded conversation in which
Wilson and other officers were talking about newer graduates. We agree with the
circuit court’s characterization of the conversation that all officers were engaged in
banter – joking and jesting with one another – when someone asked Wilson if he
was in graduating class number two (which would have implied that Wilson was
much older than his actual age at the time). Wilson was also engaged in the banter
among officers. Wilson claims the name-calling occurred on a near daily basis, but
the record completely lacks support for his assertion. Wilson failed to submit any
affidavits from employees at GCPD, and Officer Ray Brun testified that he did not
hear anyone at GCPD refer to Wilson by any derogatory nicknames.
12
We note that Wilson does not point to specific instances in his recordings in the record before
us. Appellees, however, point to the two instances discussed herein. If there are other instances
contained within the hours of recordings, Wilson does not bring them to our attention. It is not
the responsibility of this Court to search the record to find support for Wilson’s contentions,
assuming it exists. Smith v. Smith, 235 S.W.3d 1 (Ky. App. 2006).
The recording is labeled as “Halley Father Figure,” so this Court presumes that it is Lieutenant
13
Halley speaking to Wilson in the recording.
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Even if we construe the comments as harassment as the circuit court
ruled, two comments spaced over a year apart do not demonstrate pervasiveness,
and the nature of the comments lacks severity. Although Wilson may have been
subjectively offended, the comments were not such that an objectively reasonable
person would take offense under the circumstances. Therefore, Wilson still fails to
satisfy the third element of his prima facie case. We agree with the circuit court,
who looked to Crawford for its reasoning to find that
[t]he third element is a two-part requirement. The first
part is that the plaintiff must show that the harassment
unreasonably interfered with his work performance.
Wilson claimed that the words upset him and interfered
with his job performance. Wilson said he experienced
stress, trouble eating and trouble sleeping. He claimed
later in his response that he lost over sixty pounds and
had two blood transfusions as a result of this harassment.
In his complaint, Wilson alleged that the blood
transfusion and loss of thirty pounds was the result of the
a [sic] two[-]day suspension. Additionally, he claimed
that a divorce resulted from the actions of his co-workers
and supervisors. Even looking in a light most favorable
to Wilson, no evidence, including work or medical
records, has been presented to support these claims.
The second part of the third element is that it
created an objectively intimidating, hostile, or offensive
work environment. This Court looked at the totality of
circumstances and considered the frequency and severity,
whether it was physically threatening or humiliating, and
whether it interfered with his work. Wilson claimed that
names were used daily. He has not proven this point; he
has hours of recordings and only a few instances of the
name calling were caught in the recordings, which
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supports that the name calling was far less frequent than
he stated.
(Citations omitted.)
Agreeing with the circuit court on Wilson’s failure to meet the third
prong of the prime facie analysis, we need not address Wilson’s argument that he
has met the fourth prong.
CONCLUSION
The Scott Circuit Court entered a well-reasoned and extremely
thorough order granting appellees’ motion for summary judgment. Wilson failed
to meet his prima facie case on each issue he raised, and we discern no genuine
issues of material fact for any of his claims. For the foregoing reasons, the
judgment of the Scott Circuit Court summarily dismissing Wilson’s claims is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Andrew S. Epstein Charles D. Cole
Louisville, Kentucky Janet S. Luo
Lexington, Kentucky
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