Anthony Jennings v. Kentucky One Health

RENDERED: JUNE 2, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0912-MR
ANTHONY JENNINGS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE JESSICA E. GREEN, JUDGE
ACTION NO. 19-CI-004071
KENTUCKY ONE HEALTH AND
CHI SAINT JOSEPH HEALTH APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND LAMBERT,
JUDGES.
THOMPSON, CHIEF JUDGE: Anthony Jennings appeals from an order of the
trial court which dismissed his race and gender discrimination case against
Kentucky One Health and CHI Saint Joseph Health.1 We find no error and affirm.
1
Kentucky One Health was renamed as CHI Saint Joseph Health during the pendency of this
case.
FACTS AND PROCEDURAL HISTORY
Appellant, who is an African-American man, began working for
Kentucky One Health in 2016 as a patient transporter. Pamela Gillman was his
direct supervisor. The hospital had in place policies prohibiting employee
harassment and discrimination. Appellant received training in these policies. In
early 2019, Ms. Gillman received a report that Appellant made inappropriate
comments to another employee. Ms. Gillman then reported the matter to a human
resources representative, Bobbi Smith. Ms. Smith and Ms. Gillman then began an
investigation of the allegations.
Appellant was placed on administrative leave during the pendency of
the investigation. Appellant and other employees were interviewed. Based upon
the findings of the investigation, Appellant was found to have made inappropriate
sexual comments and was terminated for violating the hospital’s harassment
policies.2
Appellant denied making any sexually harassing statements and
brought the underlying suit based on gender and race discrimination. After some
2
None of the employees who alleged Appellant made inappropriate statements or witnessed
these alleged statements were deposed in this case or filed affidavits. The only evidence of the
alleged harassing statements came from the depositions of Ms. Gillman and Ms. Smith;
therefore, they are considered hearsay. We will not set forth the statements Appellant allegedly
made in this opinion due to their nature as hearsay, but we will acknowledge that an
investigation substantiated the allegation that Appellant made inappropriate sexual comments.
Any statements attributed to Appellant we may recount in this Opinion are those Appellant
admits to saying.
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discovery, the hospital moved for summary judgment. The trial court granted the
motion and this appeal followed.
ANALYSIS
Before we analyze the primary issues on appeal, we must first address
two preliminary issues raised by the parties.
First, Appellant argues that he was denied a fair judgment because
two judges presided over his case. The case was originally assigned to Judge
Judith McDonald-Burkman when it was brought in 2019. In 2022, Judge
McDonald-Burkman retired and was replaced by Judge Jessica Green. Shortly
thereafter, Judge Green went on maternity leave and Judge McDonald-Burkman
returned to the case. Judge McDonald-Burkman was the judge who presided over
the summary judgment hearing; however, Judge Green was the judge who entered
the order granting summary judgment in favor of the hospital. Appellant argues
that the case should be remanded to the trial court in order for Judge McDonald-
Burkman to render the summary judgment order. Appellant believes the judge
who presides over the summary judgment hearing should be the judge who enters
the summary judgment order.
This issue is without merit. There is no statute, rule, or case law that
requires a single judge to preside over a case from start to finish. Furthermore, it is
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clear from the order on appeal that Judge Green reviewed the record before
rendering her judgment. There was no error.
The second preliminary issue is Appellees’ argument that the appeal
should be dismissed because Appellant violated the Kentucky Rules of Appellate
Procedure (RAP). Specifically, Appellees argue that Appellant violated RAP
32(A)(4) by not stating in the argument section of his brief how the issues on
appeal were preserved. Appellees are correct that Appellant failed to address the
preservation issue. We also note that Appellant has also violated RAP 32(A)(3) by
not making any references to the record in his brief.
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief
or its offending portions . . . ; or (3) to review the issues raised in the brief for
manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010)
(citations omitted). After reviewing the record, it is clear that the issues have been
preserved because Appellant contested the motion for summary judgment. In
addition, the record is not voluminous; therefore, the failure to cite to the record
does not put a significant burden on this Court. We will ignore the deficiencies in
Appellant’s brief and review the appeal on the merits.
We will now move on to the summary judgment on appeal.
The standard of review on appeal when a trial
court grants a motion for summary judgment is whether
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the trial court correctly found there were no genuine
issues as to any material fact and that the moving party
was entitled to judgment as a matter of law. The movant
bears the initial burden of convincing the court by
evidence of record that no genuine issue of fact is in
dispute, and then the burden shifts to the party opposing
summary judgment to present at least some affirmative
evidence showing that there is a genuine issue of material
fact for trial. The party opposing summary judgment
cannot rely on their own claims or arguments without
significant evidence in order to prevent a summary
judgment. The court must view the record in the light
most favorable to the nonmovant and resolve all doubts
in his favor. The inquiry should be whether, from the
evidence of record, facts exist which would make it
possible for the nonmoving party to prevail. In the
analysis, the focus should be on what is of record rather
than what might be presented at trial. An appellate court
need not defer to the trial court’s decision on summary
judgment and will review the issue de novo because only
legal questions and no factual findings are involved.
Hallahan v. The Courier-Journal, 138 S.W.3d 699, 704-05 (Ky. App. 2004)
(internal quotation marks, citations, and footnote omitted).
When raising issues of gender and race discrimination, a plaintiff
must first set forth a prima facie case of discrimination. That is accomplished by
showing that
1) [he or] she is a member of a protected class; 2) that [he
or] she suffered an adverse employment action; 3) that
[he or] she is qualified for the position requested; and 4)
that a similarly situated employee outside the protected
classification was not subject to the adverse action.
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Tiller v. University of Kentucky, 55 S.W.3d 846, 849 (Ky. App. 2001) (citation
omitted). “Second, the employer must then articulate a legitimate
nondiscriminatory reason for its action. Third, once such a reason is given, it is
incumbent on the employee to demonstrate that the stated reason is merely a
pretext to cover the actual discrimination.” Kentucky Center for the Arts v.
Handley, 827 S.W.2d 697, 699 (Ky. App. 1991) (internal quotation marks and
citations omitted).
In the case at hand, the trial court held that Appellant could not show
that a similarly situated employee outside the protected class was not subject to
adverse employment action. The court also held that the hospital provided a
nondiscriminatory reason for the adverse employment action and that Appellant
could not provide evidence that this reason was merely a pretext.
We agree with the trial court that Appellant cannot set forth a prima
facie case of discrimination because there is no evidence in the record that a
similarly situated employee outside the protected classification was not subject to
the adverse action. As it pertains to gender discrimination, Appellant claims he
and a group of women were giving advice to another woman regarding her
clothing. He claims that this conversation was one of the allegations of sexual
harassment levied against him. He also claims that the women involved in that
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conversation were not terminated from their employment. Appellant’s argument is
that these women were similarly situated, but received no punishment.
We disagree with Appellant’s argument. Here, according to the
depositions of Ms. Gillman and Ms. Smith, this conversation was not the basis of
the investigation against Appellant nor the reason for his termination. As this
conversation was not complained about, there was no reason for the women
involved in that conversation to have been reprimanded. Appellant points to no
other instances of women not being punished for making allegedly harassing
comments; therefore, he cannot provide sufficient evidence for gender
discrimination.
As for racial discrimination, Ms. Gillman stated in her deposition that
a similarly situated Caucasian man allegedly made sexually harassing statements,
was placed on administrative leave, investigated, and then terminated. This was
the only evidence in the record of a person of another race being investigated and
terminated for allegedly making harassing statements. Seeing as this Caucasian
man who was also terminated for allegedly making harassing statements, Appellant
cannot meet the requirement of showing that a similarly situated employee outside
the protected race classification was not subject to adverse employment action.
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CONCLUSION
In summary, Appellant did not provide evidence showing that the
hospital treated a similarly situated person of another gender or race better than
him.3 By failing to do so, Appellant could not make a prima facie case of
discrimination; therefore, the motion for summary judgment was properly granted.
We find no error and affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Teddy B. Gordon Robert C. Rives, IV
Louisville, Kentucky Louisville, Kentucky
Jay M. Dade
Kansas City, Missouri
3
We acknowledge that the trial court made alternative conclusions as to why summary judgment
should be granted in favor of Appellees; however, we need not address them because the failure
to set forth a prima facie case of discrimination is determinative of this case.
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