Martha Martinez v. Jb Electric, LLC ( 2021 )

RENDERED: APRIL 9, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1055-MR
MARTHA MARTINEZ APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
v. HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 19-CI-00568
JB ELECTRIC, LLC; and
JB BRIDGEMAN APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES.
KRAMER, JUDGE: Martha Martinez appeals a July 28, 2020 order of the Warren
Circuit Court which summarily dismissed her wage and hour, breach of contract,
and retaliatory termination claims she asserted against her former employer,
appellee JB Electric, LLC, and her former supervisor and the owner of that
company, appellee JB Bridgeman (collectively “JB Electric”). Upon review, we
affirm.
Most of the relevant facts, procedural history, and legal issues relevant
to this appeal are set forth in the circuit court’s well-written summary judgment
order. In relevant part, it provides:
Plaintiff, Martha Martinez, is a former employee of JB
Electric, LLC. In 2015, JB Bridgeman, owner of JB
Electric, hired Martha Martinez to be the office manager.
Plaintiff says she worked from 7:30 a.m. to 4:30 p.m.,
Monday through Friday, and sometimes on Saturday.
Plaintiff worked throughout the nine hours. If Plaintiff
went to lunch, she says she was required to take her
company phone or laptop in order to work through her
lunch break. Plaintiff alleges that she is entitled to
unpaid wages for her work during her lunch break, in the
principal amount of five hours per week, times her hourly
rate, times 52 weeks per year, throughout the course of
her employment with JB Electric from 2015 to 2019. In
September 2018, Plaintiff requested a raise.
Plaintiff claims that Defendants violated certain
provisions of the Kentucky Wages and Hours Act, and
Plaintiff suffered a monetary loss as a result of this
violation. KRS[1] 337.060; KRS 337.385. Plaintiff
further claims that, when she brought the issue of her
unpaid wages to the attention of her employer, she was
terminated in retaliation. Plaintiff claims that this
termination also violated the Kentucky Civil Rights Act.
Plaintiff claims that JB Electric breached its contract with
Plaintiff when it contracted to pay her at an hourly rate
for every hour she worked, but only paid her for forty
hours when she worked forty-five hours.
1
Kentucky Revised Statute.
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Defendant moved for summary judgment on these
claims. Defendant asserts that Martinez is not an
employee under KRS 337, and therefore not entitled to
protection under the statute. Additionally, Defendant
emphasizes that no claim for retaliatory termination
based on gender or race exists because Plaintiff did not
engage in protected activity.
Plaintiff is not an employee under the statute, and,
therefore, Plaintiff is not entitled to overtime wages.
KRS 337.010; KRS 337.385. KRS 337.010(2)(a)(2)
excludes from the definition of an employee “any
individual employed in a bona fide executive,
administrative, supervisory, or professional capacity, or
in the capacity of an outside salesman, or as an outside
collector as the terms are defined by administrative
regulations of the commissioner.” The administrative
regulations define “an individual employed in a bona fide
administrative capacity” as an employee 1) compensated
on a salary or fee basis at a rate of not less than $455 per
week, 2) whose primary duty is the performance of office
or nonmanual work directly related to the management or
general business operations of the employer or the
employer’s customers, and 3) whose primary duty
includes the exercise of discretion and independent
judgment with respect to matters of significance. 803
KAR[2] 1:070. Plaintiff bears the burden of proving she
is an employee. City of Louisville, Div. of Fire Serv.
Managers Ass’n by & through Kaelin, 212 S.W.3d 89,
95-96 (Ky. 2006).
Plaintiff was the sole office manager and described her
role with JB Electric as beyond that of an ordinary
secretary or clerical worker. She acknowledged that her
responsibilities were directly related to the business
operations of JB Electric, and said she was “in charge of
the general business operations.” Plaintiff said she
prepared bank deposits, answered phones, scheduled
2
Kentucky Administrative Regulation.
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electricians and technicians, invoiced customers and
contractors, prepared bills, scheduled city and county
inspections, filed and signed permits on behalf of the
company, and was responsible for delivery of parts to
technicians. Plaintiff admitted that these tasks were
significant and affected the business operations to a
substantial degree. Plaintiff conceded that she used her
discretion and judgment, and specifically cited her
discretion in creating marketing content.
The parties agree that Plaintiff received over $455 a week
in compensation, that her work was related to general
business operations, and that her work included the
exercise of discretion. However, Plaintiff argues that she
was paid on an hourly, rather than salaried basis. As
compensation for her work, Plaintiff received $680 a
week from 2015 to 2016. In November 2016, Plaintiff
received a raise to $720 a week. Plaintiff does not deny
that she was paid in the exact same amount weekly. She
never submitted time sheets or hours worked to anyone
until 2018 when she decided to begin inputting her time
in QuickBooks. Aside from her assumptions, Plaintiff
has provided no proof that she is hourly. The record
shows that Plaintiff was paid a salary. Plaintiff has not
proven that she is an employee under KRS 337.
Therefore, she is not entitled to unpaid wages.
Plaintiff cannot sustain an action for retaliatory
termination under KRS 337.990(9). When asked if she
had reported any wage and hour issue, Plaintiff admitted
that she “just asked for a raise” because she was taking
on more responsibility. Plaintiff did not engage in any
action or complaint about her wages. It is impossible for
her to be retaliated against for something she did not do.
Plaintiff has failed to show that she faced discrimination
at JB Electric, or that she was retaliated against for
complaining about discrimination. To establish
retaliation, the plaintiff must show: (1) that he was
engaged in a protected activity, (2) that he was subjected
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to adverse treatment by his employer, and (3) that there
was a causal connection between the activity engaged in
and the employer’s treatment of him. Ky. Dep’t of Corr.
v. McCullough, 123 S.W.3d 130, 133-34 (Ky. 2003). A
person engages in protected activity when he makes a
charge, files a complaint, testifies, assists, or participates
in any manner in any investigation under KRS 344. KRS
344.280. Plaintiff never filed a charge of discrimination
with the Kentucky Human Rights Commission, made an
inquiry with KHRC, nor voiced a complaint to anyone at
JB Electric regarding discrimination. Since Plaintiff did
not take such action, her termination could not have been
a retaliation.
Nothing in the record indicates that Defendant breached
its contract with Plaintiff. The facts show that Plaintiff
was a salaried employee. Plaintiff’s employment did not
require JB Electric to pay her based on her hours worked.
Defendant paid Plaintiff for her work in accordance with
their agreement.
Following Plaintiff’s deposition, there is no genuine issue
as to any material fact, and Defendants are entitled to
summary judgment. Under KRS 337, Martinez is a bona
fide administrative employee, so she is exempt from the
protections of the statute and is not entitled to unpaid
wages. Because she was a salaried employee and never
filed a charge or complained of unpaid wages or
discrimination, Plaintiff cannot sustain a claim of
retaliation or breach of contract.
On appeal, Martinez asserts the circuit court erred in summarily
dismissing her claims. We will discuss additional facts relevant to her claims over
the course of our analysis.
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
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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.” CR3 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. 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.,
3
Kentucky Rule of Civil Procedure.
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Martinez) 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).
As indicated, the circuit court dismissed Martinez’s KRS 337.385
wage and hour claim against JB Electric after determining there was no genuine
dispute in the evidence that Martinez’s employment with JB Electric had been in a
“bona fide administrative capacity” within the meaning of KRS 337.010(2)(a)2.
And, an individual works in a “bona fide administrative capacity,” and thus cannot
assert a claim under KRS 337.385, if, pursuant to 803 KAR 1:070 Section 3, they
are:
(a) Compensated on a salary or fee basis at a rate of not
less than $455 per week, exclusive of board, lodging, or
other facilities;
(b) Whose primary duty is the performance of office or
nonmanual work directly related to the management or
general business operations of the employer or the
employer's customers; and
(c) Whose primary duty includes the exercise of
discretion and independent judgment with respect to
matters of significance.
With that said, Martinez does not contest that her employment with JB
Electric satisfied factors “(b)” and “(c),” set forth above. Regarding factor “(a),”
she likewise does not contest that she was compensated more than $455 per week
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at all relevant times. Rather, her sole contention is that per factor “(a),” she was
not compensated on “salary basis.”
The term “salary basis” is an administrative term of art, defined in 803
KAR 1:070 Section 10, which provides in relevant part:
(1)(a) An employee will be considered to be paid “on a
salary basis” within the meaning of this administrative
regulation if the employee regularly receives each pay
period on a weekly, or less frequent basis, a
predetermined amount constituting all or part of the
employee’s compensation, which amount is not subject to
reduction because of variations in the quality or quantity
of the work performed. Subject to the exceptions in
subsection 2 of this section, the employee shall receive
his or her full salary for any week in which the employee
performs any work without regard to the number of days
or hour worked. Exempt employees need not be paid for
any workweek in which they perform no work.
(b) An employee shall not be considered to be “on a
salary basis” if deductions from the employee’s
predetermined compensation are made for absences
occasioned by the employer or by the operating
requirements of the business. Accordingly, if the
employee is ready, willing and able to work, deductions
shall not be made for time when work is not available.
(Emphasis added.)
As the plaintiff in this wage and hour claim, Martinez had the burden
to prove she was not4 an exempt employee. City of Louisville, Div. of Fire v. Fire
4
As explained in Kaelin, KRS Chapter 337 is Kentucky’s analogue to the Fair Labor Standards
Act (FLSA), 29 United States Code §§ 201-219, but it differs from the FLSA concerning the
burden of proof: under the FLSA, whether an employee is “exempt” is considered an affirmative
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Service Managers Ass’n ex rel. Kaelin, 212 S.W.3d 89, 94-95 (Ky. 2006). Part of
that burden required Martinez to demonstrate she was not salaried. And, as
explained in Kaelin, the appropriate metric for doing so is the “salary-basis test,”
which, as adopted by our Supreme Court, places the onus upon the plaintiff to
demonstrate they were “covered by a policy that permits disciplinary or other
deductions in pay ‘as a practical matter.’ That standard is met . . . if there is either
an actual practice of making such deductions or an employment policy that creates
a ‘significant likelihood’ of such deductions.” Id. at 96 (quoting Auer v. Robbins,
519 U.S. 452, 461, 117 S. Ct. 905, 911, 137 L. Ed. 2d 79 (1997)).
Here, nothing of record demonstrates there was any practice at JB
Electric of actually making deductions from Martinez’s weekly pay. As the circuit
court observed, during her roughly four years of employment with the company,
Martinez was consistently paid $680 per week until November 2016; and she was
paid at least $720 per week until the date of her termination in February 2019.
Boiled down, Martinez’s argument is, rather, that she sufficiently
adduced evidence demonstrating her pay was subject to an employment policy that
allowed for a deduction in her weekly pay. To that end, she asserts her weekly
wage was not “predetermined,” but was instead dependent upon the number of
days or hours she worked. Martinez points to the fact that JB Electric’s employee
defense for an employer to prove; whereas, under KRS Chapter 337, an employee is required to
prove they are not “exempt” as part of their prima facie case. See Kaelin, 212 S.W.3d at 94-95.
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handbook provides in relevant part, “When hired unless told otherwise, you are a
full-time employee working 40 hours per week (M-F 7:30am – 3:30pm).” She
notes that no salary-type arrangement was ever memorialized in writing with her
and that she was never told that her employment was subject to such an
arrangement. She also points to her deposition in this matter. There, she testified
about her interview with Bridgeman immediately prior to when he hired her in
2015. Regarding the subject of her compensation, she recalled telling him that she
“worked hourly.” She continued, “And I said – and anyway, he said, ‘And your
pay’ – and I said, ‘I make $17 an hour where I’m at.’ And he said, ‘That will be
fine.’”5
Additionally, some evidence demonstrates, at least on paper, that
Martinez was paid either seventeen or eighteen dollars per hour, for forty hours of
work each week. To review, Martinez was paid $680 per week until November
2016; and, there is no dispute that until November 2016, Bridgeman calculated her
per-week compensation by multiplying seventeen dollars by forty. Furthermore,
Bridgeman admitted that when he gave Martinez a raise and began paying
Martinez $720 per week beginning in November 2016, he calculated that sum by
5
For what it is worth, JB Electric disagrees with Martinez’s characterization of how she was
compensated. It notes Bridgeman testified in the course of his deposition that, according to his
recollection of his employment interview of Martinez in 2015, he merely promised to pay
Martinez the “equivalent” of seventeen dollars per hour, or “forty hours or forty times seventeen
dollars for a weekly amount,” an amount he believed – but concededly did not tell Martinez he
believed – was the equivalent of a salary.
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multiplying eighteen dollars by forty. Likewise, JB Electric produced its records
of what it paid Martinez on a weekly basis – including the receipts of what it
directly deposited into her bank account – dating back to May 31, 2017. Those
records indicate that “40.00,” according to JB Electric, consistently represented
Martinez’s “regular hours” worked per week; that she was paid at a “rate” of
“18.00”; and that with one exception,6 Martinez worked forty hours per week until
February 22, 2019, the date of her termination.
Incidentally, stating that Martinez worked at least forty hours per
week during every week of her employment with JB Electric is not hyperbole: not
only is it exactly what Martinez’s payroll records reflect, but it is also consistent
with her unrefuted testimony that she never took any time off work during her
employment. Indeed, JB Electric had no record of Martinez ever taking time off
work; and Bridgeman testified he had no recollection of her ever doing so. Thus,
at least on paper, this is not inconsistent with the notion that Martinez received an
hourly wage from JB Electric, as opposed to a salary. See 803 KAR 1:070 Section
10(1)(a) (explaining “the employee shall receive his or her full salary for any week
6
JB Electric’s records indicate that in the one instance where Martinez was credited for working
more than forty hours in a given workweek (i.e., during the week of October 22 through October
28, 2018, she was noted as having worked forty-five hours), Martinez was paid “overtime” at a
rate of twenty-seven dollars per hour for the additional five hours. JB Electric, for its part, notes
that Bridgeman testified he believed that when Martinez was paid for five hours of overtime for
the week of October 22 through 28, 2018, it was the unintended result of his “mess-up.”
Ultimately, however, this point is irrelevant. The ability of an otherwise exempt employee to
accrue overtime for hours worked in excess of their regularly scheduled shifts has no bearing
upon their salaried status. See Kaelin, 212 S.W.3d at 97.
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in which the employee performs any work without regard to the number of days or
hour worked.”).
In short, the evidence, taken in the light most favorable to Martinez,
supports that JB Electric had an employment policy that might have allowed for
Martinez’s weekly pay to be reduced based upon the number of days or hours she
worked.
But, that is not enough. The applicable standard is whether JB
Electric’s employment policy created a significant likelihood of such deductions.
Kaelin, 212 S.W.3d at 96. “Actual practice” is of “seminal importance.” Id.
Thus, regardless of whether JB Electric’s policy might have allowed for Martinez’s
weekly pay to be reduced based upon the number of days or hours she worked, the
issue is the level of attention JB Electric gave to that policy in the context of her
employment. See id. at 98 (“nonenforcement of an existing policy may actually
support an employer’s claim that its employees are salaried.” (citation omitted)).
With that in mind, JB Electric contends, as it did below, that if it had
any such policy with respect to Martinez, its policy was, in practice, never
enforced and wholly ignored. In its brief, JB Electric argues:
Although Martinez may contend that the parties never
memorialized the salary arrangement, such a fact is
inconsequential given the actual course of conduct of the
parties for four years. It is difficult to grasp how
someone could refute the fact they were a salaried
employee when they were not required to keep track of
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their time for over three years and yet were paid a
consistent weekly sum each and every week.
We agree. To be sure, Martinez’s payroll records and unrebutted
testimony reflect that she never took any time off work during her employment and
that she worked forty hours per week. What is dispositive, however, is the
undisputed fact – as indicated by the circuit court in its own review of this matter –
that JB Electric never monitored the hours Martinez worked. Indeed, JB Electric
never asked Martinez to submit timesheets. Martinez never submitted timesheets
or hours worked to anyone until 2018, when she decided, on her own volition, to
begin inputting her time in QuickBooks.7 Martinez never asked to audit or review
how JD Electric was completing timesheets on her behalf; nor did she ask to be
paid for any hours in excess of forty per week during her tenure with JB Electric –
despite her present claim that she always8 worked forty-five hours each week. And
Bridgeman, who completed and approved each of Martinez’s timesheets during her
tenure with JB Electric, testified – unsurprisingly – that he did so without ever
7
JB Electric never approved or otherwise adopted any of the timesheets Martinez completed.
8
Whether Martinez adduced mere speculation regarding whether she worked during her lunch
hours, as opposed to evidence, was never a point raised or addressed below. As dicta, however,
we emphasize Martinez testified in her deposition that while she “answered the phone all the
time,” she never kept track of the time she spent on the phone during her lunch hour; and, she
acknowledged, “There’s no way for us to know how much time [she] spent on the phone on any
given day.” As indicated, KRS Chapter 337 is interpreted consistently with the FSLA; and, in
the words of one Court applying the FSLA – and analyzing roughly the equivalent of what
Martinez adduced – this is “nothing but low-octane fuel for speculation, not the plausible claim
that is required.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 115 (2nd Cir.
2013).
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consulting with Martinez or knowing how many hours she actually worked each
week.
Based upon this undisputed, mutually understood, and continuing
course of conduct between Martinez and JB Electric, it cannot be said that
Martinez adduced affirmative evidence indicating JB Electric’s employment policy
regarding Martinez – a practice that entailed no monitoring of her time at all –
created a significant likelihood that her weekly pay would be reduced based upon
the amount of time she worked. Martinez accordingly failed to support that she
was not paid on a salary basis and, therefore, was not an exempt employee (i.e.,
employed in a “bona fide administrative capacity”). Summary judgment was
appropriate in this respect.
Next, Martinez argues the circuit court erred in dismissing her breach
of contract claim against JB Electric. However, to the extent that she addresses
this issue in her brief, she does so only by contending, once again, that the circuit
court erred in determining she was paid on a salary basis. Having already
determined the circuit court committed no error in that regard, we affirm in this
respect as well.
Lastly, Martinez asserts the circuit court erred in dismissing her
retaliation claims set forth above, which she asserted pursuant to KRS 337.990(9)
and KRS Chapter 344. She argues, “There was no question that JB fired [her] for
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her assertion of these claims, and whether her beliefs were reasonable or in good
faith should have been a question for the jury.” And, regarding what she believes
supported her claims, she points to two pages of Bridgeman’s deposition, in which
he testified:
COUNSEL: Tell me why it is that J.B. Electric and
Martha Martinez had a parting of the ways.
BRIDGEMAN: Long story or short story?
COUNSEL: Long story.
BRIDGEMAN: Okay, long story. It won’t be that long.
At the end of the round I started getting talked to by my
employees, which Ryan Thomas was one of them, Jimmy
Kirby was another one. They stopped me at my house
and told me they’re scared to death that something’s
going to happen to our company because she’s been
talking about suing me and also said that she was trying –
going to try to get me for other things other than this, so.
COUNSEL: Ryan Thomas told you that?
BRIDGEMAN: Yes.
COUNSEL: Mr. Kirby told you that?
BRIDGEMAN: Yes.
COUNSEL: What was she going to sue you for?
BRIDGEMAN: I think they were saying for pay, of
course.
COUNSEL: Wage and hour?
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BRIDGEMAN: And also for – I think that he said that
she was going to try to get me for sexist and racism
because she’s Spanish. That’s about it.
COUNSEL: Who told you that?
BRIDGEMAN: Jimmy and Ryan both were – met me,
pulled me off to the side and told me all this.
COUNSEL: They told you that Martha was going to sue
you for race discrimination?
BRIDGEMAN: Yes, sir.
COUNSEL: And tell me exactly what you remember
about that.
BRIDGEMAN: That was about it. I mean they’re like,
“We’re scared to death. We don’t want her to do
anything to our company. She’s already talked to a
couple of lawyers” and blah blah blah, this this this, and
“she’s going to sue you because she – because of the
wages and she thinks she could get something because
she’s a minority and a woman.”
COUNSEL: Anybody else tell you that?
BRIDGEMAN: No.
COUNSEL: Did you know that Martha Martinez was a
woman when you hired her?
BRIDGEMAN: Yes, I did.
COUNSEL: Did you know that she was Hispanic?
BRIDGEMAN: No, I did not.
COUNSEL: Did you ever –
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BRIDGEMAN: But it doesn’t matter.
COUNSEL: Did you ever discriminate against her or –
BRIDGEMAN: No, not to my knowledge.
COUNSEL: – or have any reason to discriminate against
her because of her race or –
BRIDGEMAN: Uh-uh.
COUNSEL: – or her gender?
BRIDGEMAN: No, sir.
COUNSEL: Did Martha ever talk to you about having
been discriminated against because of her race or gender?
BRIDGEMAN: No, not to me. Not to me, no.
COUNSEL: Do you know – do you know if she ever
talked to anybody at all about being discriminated against
because of her race or gender?
BRIDGEMAN: Not while she was around me, so not
that I know of.
COUNSEL: Are you representing to me that Martha
Martinez told Mr. Kirby or Mr. Thomas that she was
going to bring some race or – or gender discrimination
claim?
BRIDGEMAN: I’m saying that’s what they told me, yes.
COUNSEL: They told you that she told them that?
BRIDGEMAN: Yes.
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COUNSEL: Okay. Did you fire Martha Martinez
because she brought this wage and hour issue to your
attention?
BRIDGEMAN: No.
COUNSEL: Why did you fire her?
BRIDGEMAN: Because I – because of the other things,
because they said that they were – that what they said
was going to do to my company, so I had to – I didn’t
think it was – I think it was just time to get rid of her.
COUNSEL: Did you ask Martha Martinez about these
allegations of –
BRIDGEMAN: Yes, I did.
COUNSEL: – of race or gender discrimination before
you –
BRIDGEMAN: Yes. Sorry.
COUNSEL: – before you fired her?
BRIDGEMAN: Yes, at the time.
COUNSEL: Tell me what you –
BRIDGEMAN: At the same time I fired her I asked her
this first. Yes.
COUNSEL: Tell me what you remember about that.
BRIDGEMAN: That I was – I mean I just asked her,
“Did you talk to them and ask – and tell them that you
were suing me and that there was issues about” –
COUNSEL: Suing you for what?
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BRIDGEMAN: Well, that’s what – that’s what I told –
that’s what I asked her.
COUNSEL: Suing you for wage and hour –
BRIDGEMAN: For wage and hour and for being sexist
and racist.
COUNSEL: Okay. So did you terminate her for
bringing this wage and hour violation to your attention?
BRIDGMAN’S COUNSEL: Objection.
BRIDGEMAN: That was the smallest thing to do, and it
was time for her to leave anyway.
COUNSEL: Why?
BRIDGEMAN: Well, because she, like I said, she was
good at some things but other things she just wasn’t –
wasn’t on par with, so.
In sum, Bridgeman testified that two of his other employees – Thomas
and Kirby – had informed him of hearsay, telling him they had overheard Martinez
threatening to sue JB Electric for “pay” and “for sexist and racism because she’s
Spanish.” Bridgeman also testified Thomas and Kirby were the only individuals
who told him that; and that Martinez had never voiced any complaint to him in
those respects. Also, in response to Martinez’s counsel’s question, “did you
terminate her for bringing this wage and hour violation to your attention?”
Bridgeman testified, “That was the smallest thing to do, and it was time for her to
leave anyway.”
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Martinez similarly proffered no evidence that she was discriminated
against based upon gender or that she made any complaint to that effect. When
asked during her deposition, “Did you tell anybody that you believed you were
being discriminated against because of [her] ethnicity?” she answered “No,” and
did not proffer any evidence indicating she was discriminated against in that
respect, either. Moreover, despite her counsel’s frequent use of the legal terms
“wage and hour issue” and “wage and hour violation” throughout their respective
depositions, Martinez and Bridgeman both testified that the substance of the “wage
and hour” claim Martinez asserted in this litigation – that JB Electric had failed to
appropriately pay her for being “on-call” during her lunch hour each day – had
never been discussed and had thus played no role in her termination. Rather, their
discussions concerning her “wages and hours,” prior to her termination, were
limited to Martinez’s request for a “raise” for “taking on more responsibility.”
Vague complaints are insufficient to constitute opposition to an
unlawful employment practice. See Fox v. Eagle Distributing Co., Inc., 510 F.3d
587, 591 (6th Cir. 2007) (quoting Booker v. Brown & Williamson Tobacco Co.,
Inc., 879 F.2d 1304, 1313 (6th Cir. 1989)). Considering that, we find no error in
the circuit court’s decision to dismiss Martinez’s retaliation claims. Accordingly,
we restate and adopt the circuit court’s analysis in that respect:
Plaintiff cannot sustain an action for retaliatory
termination under KRS 337.990(9). When asked if she
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had reported any wage and hour issue, Plaintiff admitted
that she “just asked for a raise” because she was taking
on more responsibility. Plaintiff did not engage in any
action or complaint about her wages. It is impossible for
her to be retaliated against for something she did not do.
Plaintiff has failed to show that she faced discrimination
at JB Electric, or that she was retaliated against for
complaining about discrimination. To establish
retaliation, the plaintiff must show: (1) that he was
engaged in a protected activity, (2) that he was subjected
to adverse treatment by his employer, and (3) that there
was a causal connection between the activity engaged in
and the employer’s treatment of him. Ky. Dep’t of Corr.
v. McCullough, 123 S.W.3d 130, 133-34 (Ky. 2003). A
person engages in protected activity when he makes a
charge, files a complaint, testifies, assists, or participates
in any manner in any investigation under KRS 344. KRS
344.280. Plaintiff never filed a charge of discrimination
with the Kentucky Human Rights Commission, made an
inquiry with KHRC, nor voiced a complaint to anyone at
JB Electric regarding discrimination. Since Plaintiff did
not take such action, her termination could not have been
a retaliation.
In conclusion, Martinez’s appellate arguments demonstrate nothing
indicative of error. We therefore AFFIRM.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Matthew J. Baker T. Brian Lowder
Bowling Green, Kentucky Bowling Green, Kentucky
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