Angel Smith v. Metropolitan Sewer District ( 2023 )

RENDERED: APRIL 21, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0607-MR
ANGEL SMITH APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 20-CI-005976
METROPOLITAN SEWER DISTRICT APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND ECKERLE, JUDGES.
CETRULO, JUDGE: This an appeal from a Jefferson Circuit Court order granting
summary judgment in favor of an employer, and dismissing an employee’s claims
of gender discrimination, hostile work environment based on gender, and
retaliation. Viewing the facts in a light most favorable to the employee, we find
she failed to meet her burden on all three claims, and we affirm.
I. FACTS & PROCEDURAL BACKGROUND
In 1999, Appellant Angel Smith (“Smith”) was hired by Appellee
Metropolitan Sewer District (“MSD”) as a Utility Worker I Trainee. She remained
employed by MSD as of the filing of this appeal. During her more than 20 years
with MSD, her advancement continued: after Utility Worker I Trainee, she moved
to Utility Worker I, then Utility Worker II, and on to Utility Worker III. In 2007,
she was promoted to Assistant Supervisor (later retitled as a Field Specialist).
Smith argues that
[f]rom 2005-2017 [she] worked hard and achieved any and
all goals set for her within the televisual inspection (TVI)
department but was unable to achieve any further
promotion. In fact, Smith watched as she was passed over
on at least five (5) different occasions by individuals,
male, with less experience, seniority and education than
she, some of whom she trained or worked with at the
beginning of their careers, were promoted over her within
the TVI department.[1]
Conversely, MSD argues that “in the last decade, [Smith’s]
supervisors identified [in her evaluations] a need to improve her communication
1
It is unclear from Smith’s appellant brief what specific promotions she is contesting. In 2016,
Smith applied for two supervisor positions in the Drainage Department, but the positions were
awarded to Val Winburn and Glen Cooper. In 2017, Smith applied for TVI Supervisor, but the
position was awarded to Tony Woods, Jr. In her Equal Employment Opportunity Commission
complaint she contested promotions that were given to Keith Gallai, William Cunningham, and
Glenn Eilers. MSD mentions that she contested a promotion to “Cunningham” and also states in
its appellee brief that Smith “applied and interviewed for a few manager-level openings in mid-
2021 but was not offered those positions.” However, she did not amend her complaint to include
those.
-2-
with co-workers, subordinates, and customers.” MSD “encouraged” Smith in
2011, 2012, and 2015 reviews to improve her leadership and communication skills
by being assertive “without being overly aggressive.”
After failing to receive applied-for promotions, Smith filed complaints
with her supervisor and with MSD’s human resources department alleging she had
more seniority than those hired, and that she was passed over due to her gender. In
2016, Smith filed a discrimination charge with the Equal Employment Opportunity
Commission (“EEOC”) claiming MSD promoted less qualified men over her. The
EEOC investigated and stated it was unable to conclude MSD violated any
statutes. Smith contends that her EEOC filing prompted retaliatory conduct by
MSD.
In 2017, she was promoted outside the TVI department to “Slip Line”
Supervisor in the sanitation/construction department. At that time, she was the
only female supervisor in the three field departments (TVI, Drainage, and
Sanitary). She has since applied for, but not received, various other promotions.
As of the filing of briefs before this Court, Smith remains employed by MSD.
In 2020, Smith filed this underlying action with the Jefferson Circuit
Court against MSD alleging gender discrimination, age discrimination, hostile
work environment, retaliation, and negligent infliction of emotional distress. After
discovery, MSD filed a motion rebutting Smith’s claims. In her response, Smith
-3-
conceded her age discrimination and negligent infliction of emotional distress
claims, but defended the remaining claims. MSD moved for summary judgment,
and in April 2022, the Jefferson Circuit Court granted the motion, dismissing
Smith’s remaining claims of gender discrimination, hostile work environment, and
retaliation. Smith appealed. Additional facts will be added within the pertinent
sections below.
II. STANDARD OF REVIEW
The standard of review upon appeal of an order granting summary
judgment is “whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing
Kentucky Rule of Civil Procedure (“CR”) 56.03). Upon a motion for summary
judgment, all facts and inferences in the record are viewed in a light most favorable
to the non-moving party and “all doubts are to be resolved in his favor.” Steelvest,
Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citation
omitted). “Findings of fact, shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge the credibility of
the witnesses.” CR 52.01. Summary judgment looks only to questions of law, and
thus, we review a trial court’s decision to grant summary judgment de novo.
Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016) (citation omitted); see also
-4-
Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010).
However, “[a] party opposing a summary judgment motion cannot rely on the hope
that the trier of fact” would simply “disbelieve the movant’s denial of a disputed
fact, but must present affirmative evidence in order to defeat a properly supported
motion for summary judgment.” Ryan v. Fast Lane, Inc., 360 S.W.3d 787, 790
(Ky. App. 2012) (citing Steelvest, 807 S.W.2d at 481).
III. ANALYSIS
In determining whether MSD was entitled to judgment as a matter of
law, we apply authority construing the Kentucky Civil Rights Act (“KCRA”) as
codified in Kentucky Revised Statute (“KRS”) Chapter 344.2 Relevant here, the
KCRA prohibits employment discrimination based on one’s gender and protects
employees from a hostile work environment. KRS 344.040. Further, the KCRA
prohibits retaliation for reporting discrimination or otherwise exercising one’s civil
rights under the Act. KRS 344.280. However, before analyzing the claims of
gender discrimination, retaliation, and hostile work environment, we must establish
the appropriate timeline.
2
KRS Chapter 344 was modeled after, and is virtually identical to, Title VII of the Civil Rights
Act of 1964, codified in 42 United States Code § 2000e-2(b). Stewart v. Univ. of Louisville, 65
S.W.3d 536, 539 (Ky. App. 2001) (citation omitted). Thus, “[b]ecause of its similarity to federal
civil-rights legislation, the KCRA tracks federal case law for guidance on claims based on
gender discrimination.” The Bd. of Regents of N. Ky. Univ. v. Weickgenannt, 485 S.W.3d 299,
306 (Ky. 2016) (citation omitted).
-5-
Smith filed the underlying action in October 2020. Her claims
partially pointed to promotions that she had applied for prior to October 2015, but
which had gone to male MSD employees. MSD argues that “[w]hen an alleged
failure to promote based on a discriminatory motive falls outside the KCRA’s five-
year statute of limitations, the conduct is not actionable.” We agree.
Kentucky law states that actions “upon a liability created by statute,”
such as the KCRA, “shall be commenced within five (5) years after the cause of
action accrued[.]” KRS 413.120(2). Moreover,
[a]n action for discrimination or retaliation accrues on the
date the act of discrimination or retaliation occurs. . . .
However, where a plaintiff can establish that the alleged
discriminatory act or series of acts constitutes a continuing
violation, principles of equity allow the limitations period
to run anew from each succeeding discriminatory action.
Walker v. Commonwealth, 503 S.W.3d 165, 172 (Ky. App. 2016) (internal
quotation marks and citations omitted) (emphasis added).
Smith contends the continuing violation doctrine allows the Court to
consider promotions that occurred more than five years prior to her filing suit, but
precedent does not support that contention. “Discrete acts such as termination, [or]
failure to promote . . . are easy to identify. Each incident of discrimination and
each retaliatory adverse employment decision constitutes a separate actionable
unlawful employment practice. [The employee] can only file a charge to cover
discrete acts that occurred within the appropriate time period.” Nat’l R.R.
-6-
Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061, 2073, 153 L. Ed.
2d 106 (2002) (emphasis added) (internal quotation marks omitted). Here, Smith’s
allegation of discrimination and retaliation – manifested in the form of a repeated
failure to promote – are “discrete acts” that are “easy to identify.” Therefore, each
promotion that Smith applied for, but did not receive, is subject to the five-year
limitations period from the date that it occurred. See also Walker, 503 S.W.3d at
172-73. Thus, promotions prior to October 2015 are not part of our analysis.
A. Gender Discrimination
The United States Supreme Court established the burden-shifting test
reviewing courts employ in discrimination actions against a private employer in
McDonnell Douglas Corporation v. Green, 411 U.S. 792, S. Ct. 1817, 36 L. Ed. 2d
668 (1973). Weickgenannt, 485 S.W.3d at 306. Applying the McDonnell Douglas
test here, first, Smith must establish a prima facie discrimination action:
In a failure to promote employment discrimination case,
the Sixth Circuit has modified the elements of the
[McDonnell Douglas] test to fit the specific context.
Nguyen v. City of Cleveland, 229 F.3d 559, 562-63 (6th
Cir. 2000). Under Nguyen . . . a plaintiff with a
discrimination claim based on a failure to promote must
demonstrate that (1) she is a member of a protected class;
(2) she applied for and was qualified for a promotion; (3)
she was considered for and was denied the promotion; and
(4) an individual of similar qualifications who was not a
member of the protected class received the job at the time
plaintiff’s request for the promotion was denied. Id. at
562-63.
-7-
White v. Columbus Metro. Hous. Auth., 429 F. 3d 232, 240 (6th Cir. 2005).
Smith does so. Smith is female, applied for promotions for which
she was qualified, and was denied those promotions, which went to men who were
similarly situated (similar experience level and knowledge base).
Next, the burden then shifts to MSD to offer a “legitimate,
nondiscriminatory reason” for denying her the promotions. Id. at 238 (citation
omitted). MSD “identified a need [for Smith] to improve her communication with
co-workers, subordinates, and customers.” She was encouraged to be “assertive
without being overly aggressive” by at least three superiors. Additionally, co-
workers gave depositional testimony about situations where they had witnessed
Smith treating co-workers disrespectfully and/or was difficult to communicate
with.3 MSD argued that Smith’s sometimes aggressive and hostile demeanor
toward both subordinates and customers made her a less desirable candidate for the
positions at issue.
3
Keith Gallai, during his deposition, testified that Smith responded “aggressively” and
“defensive[ly]” when asked about her schedule. He also stated there were “complaints [about
Smith] from union staff about the way that she spoke to people; there were complaints from
customers.” Jermaine Van Lee Murphy described Smith as “on the defense all of the time” and
that she was perceived to be “hard to deal with, hard to get along with, hard to gauge, up and
down, inconsistent.” William Cunningham testified that he witnessed Smith being “outright kind
of rude” and “openly yelling, screaming, talking down to [an employee] about some of the work
he was performing on her truck.” Glenn Eilers testified that communication with Smith was
difficult at times, and Smith’s subordinates would complain to him about not receiving timely
information from Smith about classes.
-8-
Lastly, the burden then shifts a final time, back to Smith to be
afforded a “fair opportunity” to show that MSD’s stated reason for denying her the
promotions was “in fact pretext” for discrimination. Id. (citation omitted). Smith
was afforded such an opportunity but did not meet her burden. Smith argued she
had more seniority than the men hired, but MSD stated that seniority was not the
central factor in hiring decisions for the non-union positions in question.4 MSD’s
Operations Director for Sanitary Sewers testified that Smith was not offered the
promotions because “she was not considered to be the best candidate, particularly
in terms of interpersonal managerial skills. The applicants who were selected for
these positions had all the required credentials, extensive knowledge of operations
within their departments, and demonstrated acumen for leadership in managerial
roles.” A review of the record confirms that Smith was similarly situated to the
men who received the promotions, but she did not establish that MSD’s rationale
for promotions had a discriminatory basis.
Here, Smith established a prima facie case of discrimination. MSD
rebutted her claim with non-discriminatory rationale for its promotion decisions.
In the face of this rebuttal, Smith failed to show that the stated reason MSD
presented in support of its decision to choose other candidates over her was a mere
4
Glenn Eilers testified that seniority would “get you in the room” for the interview, but the
emphasis on seniority faded after that.
-9-
pretext for discrimination. Therefore, the circuit court correctly found Smith did
not establish “discriminatory intent . . . on the basis of gender” in MSD’s
promotion process. Thus, we affirm the circuit court’s dismissal of this gender
discrimination claim.
B. Hostile Work Environment
Next, Smith challenges the circuit court’s finding that her complaints
were not severe, pervasive, or gender specific and therefore not sufficient to
maintain a claim of hostile work environment. On appeal, Smith lists the alleged
instances of harassment that occurred during her 23 years with MSD:
• Smith was denied help every occasion she requested it.
• Smith was forced to constantly work both her position and that of
a field specialist due to MSD’s refusal to offer coverage.
• Smith was isolated and ridiculed.
• Smith was referred to as an “angry bitch,” “honey,” “sweetie,”
“baby,” and “girl” on more than one occasion.
• On at least one occasion a male employee stated publicly that he
did “not want that bitch as his supervisor.”
• On at least one occasion Smith’s supervisor, whom she
complained about, stated “I’m not giving that bitch any help.”
• On more than one occasion Smith was confronted by males in
scary and physically aggressive ways, including her own director.
• Smith was forced to engage in job duties to functions no other
supervisor was asked to engage in.
-10-
• Smith was micromanaged aggressively about when and how long
she needed for restroom breaks even up to and including Smith
being asked to keep a log for her supervisor of said breaks.
Smith argues that, taken as a whole, the incidents created an abusive
working environment, but as a matter of law, we do not agree. Under KRS
344.040, “it is unlawful for an employer, on the basis of sex, to ‘discriminate
against an individual with respect to compensation, terms, conditions, or privileges
of employment . . . [or] to limit, segregate, or classify employees in any way which
would . . . tend to deprive an individual of employment opportunities or otherwise
adversely affect status as an employee.’” Ammerman v. Bd. of Educ. of Nicholas
Cnty., 30 S.W.3d 793, 797 (Ky. 2000) (quoting KRS 344.040). In other words, the
KCRA prohibits sexual harassment in the workplace that creates “a hostile or
abusive work environment.” See id. at 798.
To establish a prima facie cause of action predicated upon hostile
work environment based on sex, Smith must demonstrate that “(1) she is a member
of a protected class, (2) she was subjected to unwelcome sexual harassment, (3) the
harassment was based on her sex, (4) the harassment created a hostile work
environment, and that (5) the employer is vicariously liable.” Clark v. United
Parcel Serv., Inc., 400 F.3d 341, 347-48 (6th Cir. 2005) (citations omitted).
First – as it relates to gender specificity – the lower court found that
“there [was] no evidence MSD discriminated on the basis of gender.” However,
-11-
on appeal Smith does not make a gender specific argument (on this claim) except
that one must be assumed. Smith argues she was treated differently than other
employees, the other employees were similarly situated men, and therefore,
discrimination based on gender must have occurred. And yet, correlation does not
prove causation. Sexual harassment, to be actionable, needs to be shown to be
“based on her sex” with evidence beyond mere inference or assumption. See
Weickgenannt, 485 S.W.3d at 307-08; see also Fast Lane, Inc., 360 S.W.3d at 790(requiring affirmative evidence to defeat a properly supported motion for summary
judgment).
The Supreme Court explained in the recent case of Oncale
v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 118 S. Ct.
998, 140 L. Ed. 2d 201 (1998), that “Title VII does not
prohibit all verbal or physical harassment in the
workplace; it is directed only at ‘discriminat[ion] . . .
because of . . . sex.’ We have never held that workplace
harassment, even harassment between men and women, is
automatically discrimination because of sex merely
because the words used have sexual content or
connotations.” Id. at 1002.
Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 790 (6th Cir. 2000).
Notwithstanding, even if Smith could prove gender specificity, she
needed to show that the harassment she received was egregious enough to be
actionable. In order for conduct to be actionable, it must be severe or pervasive so
as to create an objectively hostile or abusive work environment. Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21-22, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993).
-12-
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. Id. at 23, 114
S. Ct. at 371.
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[.]” Nat’l R.R. Passenger
Corp., 536 U.S.at 116, 122 S. Ct. at 2074. 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”). Moreover,
“simple teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of
employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct.
2275, 2283, 141 L. Ed. 2d 662 (1998) (internal quotation marks and citation
omitted). Even viewing the facts in a light most favorable to Smith, we agree with
the circuit court that the conduct was not so severe or pervasive as to create an
objectively hostile work environment.
-13-
Here, Smith argued that she was denied help, but MSD stated that
filling in for absent employees was commonplace for her position because certain
positions could not “be replaced by interchangeable members of the union
workforce.” She points to instances where she was called inappropriate names,
and while offensive, those names were infrequent and non-threatening. She felt
threatened once when a male employee threw his water bottle in anger and walked
toward her with fists clenched, but that was an isolated incident, the employee
apologized, and Smith reported no further acts of aggression. Also, Smith
contends she was micromanaged on her restroom breaks, but the record indicated
that she was asked to report when she left a jobsite (to return home to use the
restroom) and again when she returned to the jobsite so management could monitor
people and trucks during the workday. These incidents are not so severe nor
pervasive to be actionable. See Gray v. Kenton County, 467 S.W.3d 801 (Ky. App.
2014) (finding a male supervisor’s comments to a female employee about his
erectile dysfunction medicine, overtly sexual innuendoes and requests, and
physical critiques of her clothing and body were not sufficiently severe or
pervasive); see also Morris, 201 F.3d 784 (finding a male supervisor’s dirty jokes,
verbal sexual advances, calling a female subordinate “Hot Lips,” and commenting
on her clothing were not severe enough to create an objectively hostile
environment).
-14-
Additionally, Smith contends that “the severe and pervasive nature of
the harassment is a fact question for the jury – the trial court’s only role is to
determine whether facts have been presented not whether the facts are sufficient[,]”
citing Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 821 (Ky. 1992).
True, “[d]eciding whether the evidence presented proves misconduct ‘severe or
pervasive’ is not a question of law but a question of fact, albeit a question of
ultimate fact.” Id. However, a court has discretion5 to address the sufficiency of
the severe or pervasive claims “if the only reasonable inference from the evidence
fails to sustain the claim.” Id. at 822; see also Gray, 467 S.W.3d at 805 (“We do
not believe the trial court erred by finding that as a matter of law, no appellant
presented evidence of conduct sufficiently severe and pervasive so as to create a
hostile work environment.”).
Therefore, we do not believe the circuit court erred in finding Smith’s
claim of hostile work environment insufficient; Smith did not present evidence of
conduct sufficiently severe and pervasive to establish a prima facie claim of hostile
work environment.
5
The holding in Meyers discussed judicial discretion as permitted in granting a directed verdict,
but we find the analysis helpful here. “[W]e hold that a question of this nature [interpretive
function in factfinding as to whether harassment is severe or pervasive] remains essentially a
question of fact for the jury; a directed verdict is appropriate if the only reasonable inference
from the evidence fails to sustain the claim.” Meyers, 840 S.W.2d at 822 (citation omitted).
-15-
C. Retaliation
Lastly, the circuit court found that Smith’s retaliation claim failed
because she could not “establish a causal connection between her protected activity
and any retaliatory conduct by MSD.” On appeal Smith argues that circumstantial
evidence is sufficient to establish a causal connection, citing to Nguyen, 229 F.3d
at 566, but even accepting that low bar, she does not establish the required causal
connection. Further dissection of this claim is not necessary as it was so aptly
addressed by the lower court, and we incorporate that analysis in this Opinion.
To establish a prima facie case of retaliation, a
plaintiff must demonstrate the following: (1) he engaged
in activity protected by KRS § 344; (2) the defendant knew
she was exercising her protected rights; (3) thereafter, the
defendant took an employment action adverse to Plaintiff;
and (4) there was a causal connection between the
protected activity and the adverse action. Mountain Clay,
Inc. v. Com., Com’n on Human Rights, 830 S.W.2d 395,
396 (Ky. App. 1992); see also Arendale v. City of
Memphis, 519 F.3d 587, 606 (6th Cir. 2008). With respect
to the last element, the causal connection is established by
proving 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 was a close temporal relationship between the
protected activity and the adverse action.” Banker v. Univ.
of Louisville Athletic Ass’n, Inc., 466 S.W.3d 456, 461
(Ky. 2015). Absent direct evidence of retaliation, the
McDonnell Douglas framework applies. Canitia v. Yellow
Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990)
(internal citations omitted). The jury uses an objective
standard: a reasonable employee must find the challenged
action materially adverse. Burlington N. & Santa Fe [Ry.
-16-
Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165
L. Ed. 2d 345 (2006)].
A plaintiff alleging retaliation must adhere to a
heightened causation standard as compared to
discrimination. She “must establish that his or her
protected activity was a but-for cause of the alleged
adverse action by the employer.” Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 362 (2013). “’But for’
causation exists where ‘the unlawful retaliation would not
have occurred in the absence of the alleged wrongful
action or actions of the employer.” Beard v. AAA of Mich.,
593 F. App’x 447, 451 (6th Cir. 2014) (quoting Nassar at
360). However, “the ‘but for’ test does not require that the
jury find discrimination was the exclusive motive for the
[adverse employment action], but only that it was an
essential ingredient.” Meyers v. Chapman Printing Co.,
840 S.W.2d 814, 824 (Ky. 1992).
Ms. Smith cannot establish a causal connection
between her protected activity and any retaliatory conduct
by MSD. Although Ms. Smith’s response brief states that
she complained to many people about alleged
discrimination, she testified during her deposition about
only three specific instances of protected activity: (1)
making a verbal complaint to MSD’s Human Resources
Department after Mr. Gallai’s[6] promotion; (2) filing her
EEOC complaint about the respective promotions of [three
male employees] in 2016 and 2017;[7] and (3) discussing
her issues with [then-director of MSD].[8] As for how
6
Smith alleges that Keith Gallai was promoted over her, then later as her supervisor, gave her a
negative review.
7
Smith states this EEOC charge was filed “around” June 2017, however MSD states the charge
was filed in July 2016. This is relevant because – as MSD argues in its appellee brief – three of
the promotions (she complains of) happened before her complaint was filed in July 2016 and
could not thereby be the basis of a retaliation claim.
8
Smith’s appellant brief states that in an undated conversation, Smith spoke with the then-
director of MSD and stated to him that she felt she was being passed over for promotion in part
-17-
MSD retaliated, she identified “not getting jobs” and
“being shoved around,” which the Court takes to mean not
getting overtime or event pay; not being called for
additional shifts; her issues with [filling in for absent
subordinates]; and Mr. Gallai’s stating she has a bad
attitude in his review of her job performance. As for the
prior, the temporal proximity of other’s promotions and
her complaints are tenuous, and, more importantly, there
is no evidence that anyone in a position to make decisions
on promotions knew of her EEOC complaint or discussion
with [the then-director].
The same is true for the latter, there is no evidence
that Mr. Gallai knew about any of Ms. Smith’s respective
complaints. To the extent that the conditions of her
employment as Slip Line Supervisor could be considered
a position used to retaliate against troublesome employees,
there is also no evidence that anyone with authority to take
such action knew of her complaints. Instead, the record
includes scant evidence about who makes decisions
regarding promotions. Some of the deponents participated
in the interviewing process but had no decision making
authority regarding hiring decisions. In sum, Ms. Smith
points to insufficient evidence to make even a tenuous ‘but
for’ connection between her complaints and anything that
could be characterized as an adverse action.
We agree. Therefore, we hold that the circuit court did not err in
finding Smith did not establish a prima facie claim for retaliation.
because of her gender. The director told her that “being the only woman in the department will
not necessarily give [her] the right to a job position” and that her “attitude” was probably the
prohibitive factor.
-18-
IV. CONCLUSION
Considering the foregoing – and viewing all facts and inferences in
the record in a light most favorable to Smith – we AFFIRM the order of the
Jefferson Circuit court granting summary judgment in favor of MSD and
dismissing Smith’s claims of gender discrimination, hostile work environment
based on gender, and retaliation.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Marilyn “Linsey” Shrewsbury Edward L. Lasley
Eddyville, Kentucky Bradley R. Palmer
Louisville, Kentucky
-19-