Gary Sanders v. Board of Education of Jefferson County

RENDERED: JUNE 3, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0290-MR
GARY SANDERS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE BRIAN C. EDWARDS, JUDGE
ACTION NO. 18-CI-003214
BOARD OF EDUCATION OF
JEFFERSON COUNTY; DR. MARTIN
POLLIO; JASON NEUSS; AND
KRISHA BYRON APPELLEES
OPINION
AFFIRMING
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BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Gary Sanders appeals the Jefferson Circuit Court’s February
23, 2021, order granting summary judgment in favor of appellees Board of
Education of Jefferson County (Board or JCBE), Dr. Martin Pollio, Jason Neuss,
and Krisha Byron. The circuit court found that Sanders failed to present sufficient
evidence to support his claims of defamation and discrimination. We affirm.
The circuit court succinctly summarized the facts and procedural
history of this case, and we repeat its findings here:
Mr. Sanders began working for JCPS [Jefferson
County Public Schools] in 2002, initially being assigned
to several different schools as an itinerant teacher,
including one stint as a teacher at Stopher Elementary
under the principalship of Principal Brigette Owens.
While at Stopher Elementary, Mr. Sanders was
reprimanded for using the “N word” in a conversation
with Principal Owens (who is African-American). Mr.
Sanders accepted an assignment as a Physical Education
Teacher at Ballard High School for the 2017-18
academic year. During his time at Ballard, students made
numerous complaints against Mr. Sanders alleging that
he directed inappropriate comments towards them and
other students. These complaints were reported to
Assistant Principal Tonkeyta Rodgers. Ms. Rodgers then
advised Principal Jason Neuss of these allegations and
two conferences were then convened with Mr. Sanders to
address the allegations.
Principal Neuss forwarded a report detailing the
students[’] allegations to the Jefferson County Board of
Education’s Office of Compliance and Investigations.
Investigator Krisha Byron was assigned to investigate the
matter. Following her investigation, Ms. Byron
memorialized her findings in a Confidential Compliance
and Investigations Report and in that report, she
substantiated the students’ allegations that Mr. Sanders
had made several inappropriate statements to students.
The report was then disseminated to O’Dell
Henderson who served as the Director of Employee
Relations for the Jefferson County Board of Education
and to Principal Neuss. Upon review of the report,
Principal Neuss, recommended to Superintendent for
Jefferson County Public Schools Dr. Martin Pol[l]io that
Mr. [Sanders]’s employment be terminated. Dr. Pol[l]io
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accepted this recommendation and Mr. [Sanders] was
then terminated.
On May 29, 2018, Mr. Sanders filed a formal
grievance appealing his termination. Following a lengthy
arbitration process, including a three-day hearing, the
Arbitrator upheld the decision to terminate Mr. [Sanders],
concluding in a 41 page report, that the termination was
supported by just cause. Mr. Sanders subsequently filed
a lawsuit naming as Defendants the JCBE, Dr. Pol[l]io,
Mr. Neuss and Ms. Byron. The lawsuit alleges that Mr.
Sanders was defamed and that he was terminated because
he is Caucasian, male, and over the age of 40. The
Defendants are asking that this Court dismiss all of Mr.
Sanders’ claims and enter judgment in their favor.
The circuit court granted summary judgment in favor of the appellees, and Sanders
appeals.
We begin by stating the applicable standard of review, namely:
“The standard of review on appeal of summary
judgment is whether the trial court correctly found there
are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.” Carter
v. Smith, 366 S.W.3d 414, 419 (Ky. 2012). When
reviewing a summary judgment order, only legal
questions and the existence, or non-existence, of material
facts are considered. Stathers v. Garrard County Bd. of
Educ., 405 S.W.3d 473, 478 (Ky. App. 2012). Our
review is de novo. Id.Before the circuit court, “[t]he moving party bears
the initial burden of showing that no genuine issue of
material fact exists, and then the burden shifts to the
party opposing summary judgment to present” evidence
establishing a triable issue of material fact. Lewis v. B &
R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001). That is,
“[t]he party opposing a properly presented summary
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judgment motion cannot defeat it without presenting at
least some affirmative evidence showing the existence of
a genuine issue of material fact for trial.” City of
Florence, Kentucky v. Chipman, 38 S.W.3d 387, 390
(Ky. 2001).
Fortney v. Guzman, 482 S.W.3d 784, 788-89 (Ky. App. 2015).
Furthermore, “[t]he requisite elements for a defamation claim are:
‘(a) a false and defamatory statement concerning another; (b) an unprivileged
publication to a third party; (c) fault amounting at least to negligence on the part of
the publisher; and (d) either actionability of the statement irrespective of special
harm or the existence of special harm caused by the publication.’” Toler v. Süd-
Chemie, Inc., 458 S.W.3d 276, 281-82 (Ky. 2014) (quoting the RESTATEMENT
(SECOND) OF TORTS § 558 (1977)) (footnotes omitted). “It is well established that
there are certain categories of statements that qualify as per se defamation, where
there is [] ‘a conclusive presumption of both malice and damage’ and, thus, ‘injury
to reputation is presumed[.]’ ‘[F]alse allegations of unfitness to perform a job’ are
per se defamatory.” Estepp v. Johnson County Newspapers, Inc., 578 S.W.3d 740,
744 (Ky. App. 2019) (citing to Toler, 458 S.W.3d at 282). However, “[t]he truth is
a complete defense[.]” Id.
Sanders first argues that the dismissal was in error because he had
sufficiently demonstrated a prima facie case of defamation. He insists that his
denial of the bulk of the allegations made against him was sufficient proof of the
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falsity of the claims contained in the appellees’ reports and internal
communications. Sanders urges that some of his students testified to the falsity of
certain allegations, thus making the issue of defamation a factual issue for jury
determination.
Also, regarding the issue of defamation, Sanders maintains that he
“introduced abundant evidence that appellees abused their qualified privilege”
because they made only minimal efforts to ascertain the accuracy of their reports,
citing Warford v. Lexington Herald-Leader, 789 S.W.2d 758 (Ky. 1990). And he
contends that he demonstrated sufficient bad faith to overcome the appellees’
assertion of qualified immunity, citing Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001).
We disagree. “[M]erely alleging falsity is not enough to defeat a
directed-verdict motion based on the qualified privilege.” Toler, 458 S.W.3d at
286. Nor is an unsupported allegation of bad faith. The circuit court’s analysis is
sound on this issue:
In his response to the Defendants’ Motion for
Summary Judgment, Mr. Sanders “concedes that the
reports and documents at issue in this case were generally
protected by the qualified privilege.” Accordingly, under
the law of defamation, Mr. Sanders must establish that
this privilege was abused by the defendants. Fortney v.
Guzman, 482 S.W.3d 784 (Ky. App. 2015).
Individuals who proffer communications that are
protected by qualified privilege are immune from liability
as long as the “communications [are] made in good faith,
without actual malice, with reasonable or probable
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grounds for believing them to be true, on a subject matter
in which the author of the communication has an interest,
or in respect to which he has a duty, public, personal, or
private, either legal, judicial, political, moral or social,
made to a person having a corresponding interest or
duty.” Tucker v. Kilgore, 388 S.W.2d 112, 114 (Ky. Ct.
App. 1964) (citations omitted). One condition is that the
privilege “must be exercised in a reasonable manner and
for a proper purpose. The immunity is forfeited if the
defendant steps outside of the scope of the privilege or
abuses the occasion.” Id. (citations omitted). Where a
publication is made under circumstances involving
qualified privilege, “the burden is on the plaintiff to
prove actual malice.” Weinstein v. Rhorer, 42 S.W.2d
892, 893 (Ky. Ct. App. 1931) (citations omitted).
The record in this matter reflects that it was in fact
Ms. Byron’s job and duty to report to Mr. Neuss and the
other named defendants the findings of her investigation.
That is what investigators are hired to do. Furthermore,
it was reasonable of Mr. Neuss and the other named
Defendants in this action to share the findings of
investigations that they were involved in with other
individuals, including Dr. Wayne Lewis.
Plaintiff must present affirmative evidence of both
actual malice and falsity in order to show that the
Defendants acted outside of their qualified privilege.
Fortney v. Guzman, 482 S.W.3d 784 (Ky. App. 2015).
Plaintiff’s claim must fail because he merely proffers
sweeping allegations rooted in suspicion and conjecture
to support his contention that the defendants acted
maliciously and without good faith when deciding to
publish the reports at issue and he provides no
affirmative evidence to support this contention. Id. at
791. As stated above, it [sic] his burden to do so and he
has failed to satisfy his burden.
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We cannot improve on this reasoning. Thus, we affirm the circuit court’s decision
to dismiss the allegation of defamation.
The remaining arguments pertain to the issues of race and sex
discrimination. Sanders states that the appellees’ accusation of his racism is
“inferential evidence of racial motivation on the part of the accuser.” Because he
was labeled “an extreme racist,” he continues, the appellees stereotyped him as a
Caucasian male (which also bolstered, he argues, his claim for sex discrimination).
Again, we agree with the circuit court’s analysis and repeat it here:
Mr. Sanders’ lawsuit states that he is a Caucasian male
and that at the time of his termination, he was over the
age of 40. He alleges that because of his race, gender,
and age, the defendants terminated him which is a
violation of KRS [Kentucky Revised Statute]
344.040(1)[.]
KRS [Chapter] 344 is commonly referred to as the
Kentucky Civil Rights Act and for the purposes of
Plaintiff’s claims here, the relevant portion states:
It is an unlawful practice for an employer:
(a) To fail or refuse to hire, or to discharge
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, age forty (40) and over. . . .
KRS 344.040(1)[.]
The Kentucky Civil Rights Act was enacted in 1966. In
1966, comments such as those attributed to Mr. Sanders
by Principal Owens as well as a number of the students
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who[m] he was charged with educating were
commonplace in American society. In 1966, similar
comments were directed to a young African American
student named James Meredith moments before he was
shot for having the temerity to attempt to enroll in the
University of Mississippi, the flagship University of
James Kimble Vardaman’s home state.
In 1966, as a means of addressing the racist
philosophies of people such as James Kimble
Vardaman[,] the Commonwealth of Kentucky enacted
KRS [Chapter] 344 – The Kentucky Civil Rights Act. In
his response to the Defendants[’] Motion for Summary
Judgment, Mr. Sanders essentially argues that he is not
an “extreme racist” like Mr. Vard[a]man but that instead,
he is merely a white man who finds no problem using the
“N word” when addressing his African-American
principal or his multiracial classroom of students.
Despite the bizarreness of this argument, this Court will
not allow itself to be distracted with determining whether
Mr. Sanders is a racist and instead will focus on the
question of whether he has established a prima facie
showing that he was discriminated against by the
defendants. This Court must conclude that he has not.
In order to establish a prima facie showing of
discrimination under KRS [Chapter] 344, a plaintiff must
establish that l) he is a member of a protected class, 2)
that he suffered an adverse employment action, 3) that he
was otherwise qualified for the position, and 4) that the
position was filled by a person outside of the protected
class that he is a member of. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, [93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973)], Commonwealth v. Solly, 253 S.W.3d 537[(Ky. 2008)]. Mr. Sanders has established elements 1
and 2 by demonstrating that he is a member of a
protected class and that he did sustain an adverse
employment action (his termination). However, he has
failed to establish that he was qualified to maintain his
position and that he was replaced by someone outside of
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his protected class. The law allows a plaintiff to establish
these elements by identifying similarly situated
individuals outside of his protected class who were
treated more favorably[,] but Mr. Sanders has failed to
present any evidence of this being the case here.
Accordingly, Mr. Sanders has failed to establish a prima
facie showing of discrimination by the Defendants.
In his response to Defendants’ Motion for
Summary Judgment, Mr. Sanders also argues
that he was subjected to reverse race and sex
discrimination. As stated above, KRS [Chapter] 344 was
not originally intended to provide for relief for alleged
discriminatory conduct against Caucasian males, but
Courts have since allowed for such relief upon
demonstration that a Defendant is “that unusual employer
who discriminates against the majority[.]” Sutherland v.
Mich. Dept. of Treasury, [344] F.3d 603 (6th Cir. 2003).
Mr. Sanders in discovery responses and in his response to
the Defendant[s’] Motion for Summary Judgment, once
again makes sweeping, speculative accusations against
the Defendants with references to the “current culture at
JCPS”[;] however he provides not a shred of affirmative
evidence to support his conjecture-based opinions.
Accordingly, Mr. Sanders has failed to demonstrate that
JCBE is “that unusual employer who discriminates
against the majority” which he must demonstrate to
prevail on a KRS [Chapter] 344 reverse discrimination
claim. Jefferson County v. Zaring, 91 S.W.3d 583, 591
(Ky. 2002)[.]
In finding that Mr. Sanders has failed to establish a
prima fac[i]e case of discrimination under KRS [Chapter]
344, the Court need not address the question of whether
JCBE had legitimate non-discriminatory reasons for
terminating him. Nonetheless, were the Court to
conclude that a prima facie case had been established, it
would also conclude that there were legitimate non-
discriminatory reasons for terminating Mr. Sanders, as
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was concluded in the 41-page Arbitration opinion that
upheld his termination.
(Emphasis omitted.)
The remaining arguments (namely, those pertaining to the appellees’
pre-hearing statement and the effect of the arbitrator’s report) are without merit,
and we decline to discuss them in this Opinion.
The JCBE’s internal communications about Sanders’s conduct were
privileged, made for the purposes of evaluating the allegations against him, and
considered the appropriate discipline. Sanders failed in his burden of proving the
privilege was abused. The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Philip C. Kimball C. Tyson Gorman
Louisville, Kentucky Jordan M. White
Louisville, Kentucky
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