COLORAMA, INC. VS. JOHNSON (MARTY)
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RENDERED: SEPTEMBER 4, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000443-MR
COLORAMA, INC.
v.
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
ACTION NO. 06-CI-00608
MARTY JOHNSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, THOMPSON AND WINE, JUDGES.
CAPERTON, JUDGE: The Appellant, Colorama, appeals the February 11, 2008,
judgment of the Floyd Circuit Court, based upon a jury verdict finding that
Colorama retaliated or discriminated against the Appellee, Marty Johnson
(Johnson), for filing a workers’ compensation claim1 and for awarding damages
and attorneys’ fees against Colorama.
At trial, Johnson testified that he worked for Colorama for
approximately eight years and that he earned a salary of $455.00 per week.
Johnson testified that he sustained a work-related injury on January 28, 2006, when
he stood on a washer and dryer to get some bedding and fell off, landing on a
dolly. Following his fall, Johnson sought medical treatment and was off work for a
period of time, during which he received temporary total disability (TTD) benefits.
Johnson was subsequently released to return to work without restrictions by Dr.
Ellen Ballard in April of 2006.
Johnson testified that after being released to return to work, he felt
ready to try to do so and called Colorama on two occasions to make arrangements,
on one occasion leaving a message for store manager Kevin Nelson and on another
occasion for an employee named Keith. Johnson testified that he received no
response from Colorama and that he contacted his attorney, who sent a letter to
Colorama dated May 16, 2006. In that letter, counsel informed Colorama that
Johnson had been released to return to work and needed to make arrangements to
do so. Johnson testified that he received no response to the letter from Colorama.
1
KRS 342.197 provides: “(1) No employee shall be harassed, coerced, discharged, or
discriminated against in any manner whatsoever for filing and pursuing a lawful claim under this
chapter.” We note that in filing his complaint, Johnson did not specifically cite to this statute,
but we cite it herein for clarification.
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Johnson testified that he never received any phone call, letter or any
response from Colorama. He further testified that he spoke with the manager at
Colorama and was advised that someone would return his call, but no one did.
Johnson testified that there was no other reason for his termination aside from the
fact that he had been off work for a work-related injury.
On cross-examination, Johnson agreed that he was physically unable
to do the work that he had previously performed at Colorama and testified that in
the two years following his injury, he had not engaged in any full-time work and
had only recently started doing some part-time painting work. Johnson also
conceded on cross-examination that in June of 2006, his physician, Dr. Ira Potter,
placed severe work restrictions on Johnson which would prevent him from
performing his job at Colorama.
Johnson testified that the workers’ compensation carrier sent a letter
to his attorney dated June 12, 2006, advising that Johnson should contact Colorama
to arrange a return to work. Johnson testified that although he made two phone
calls in May of 2006, he did not contact Colorama again after that time. Johnson
conceded that he never contacted Jackie Sparkman, the Director of Human
Resources for Colorama, although he was aware of her position.
Kelly Koenig, the adjuster from Kentucky Employers’ Mutual
Insurance (KEMI) assigned to Johnson’s workers’ compensation claim, also
testified via deposition in this matter. Koenig testified that KEMI sent Johnson to
Dr. Ellen Ballard for an independent medical examination and that Dr. Ballard
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released Johnson to return to work with no restrictions on April 18, 2006. Koenig
testified that she notified Johnson that his TTD benefits had been suspended in
light of his release to return to work.
Koenig further testified that she received a letter from Johnson’s
counsel advising that Johnson was ready to return to work and that after receiving
the letter, she received a phone call from Jackie Sparkman on behalf of Colorama.
Koenig testified that she and Sparkman did not discuss whether Johnson was going
to be allowed to return to work. Koenig instructed Sparkman to forward a copy of
the May 16, 2006, letter that she had received from Johnson’s counsel for Koenig’s
review.
Koenig testified that she informed Sparkman that she would send a
letter to Johnson stating that his TTD benefits had been terminated and that he
could return to work. Koenig testified that Sparkman was not sent a copy of the
letter she sent to Johnson’s counsel, as she did not usually send copies to the
policyholder. Koenig testified that the letter which she sent to Johnson’s counsel
did not say that Colorama would contact Johnson about putting him back to work.
Koenig testified that it is up to the employer and the injured worker to
determine when and if the injured worker would return to work. Koenig denied
ever telling Sparkman that she would handle those details. Koenig testified that
she had no further communication with Sparkman or anyone else at Colorama
from the time she wrote the letter to counsel for Johnson to the time Johnson filed
suit against Colorama.
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Jackie Sparkman testified on behalf of Colorama. She testified, in
contradiction to Koenig’s testimony, that upon receiving the aforementioned letter
from Johnson’s counsel, she contacted Koenig and was told that KEMI would
“take care of it.” Sparkman testified that Johnson was never terminated but
conceded that he was never put back on the schedule. Sparkman testified, in
contradiction to Johnson’s testimony, that she did not recall anyone ever contacting
Kevin Nelson about Johnson returning to work and that she never received any
communication from Johnson about wanting to return to work until suit was filed.
Sparkman conceded that Colorama did not respond to Johnson’s
phone calls or to the letter from Johnson’s counsel. Sparkman also testified that
there might have been light duty available at Colorama for Johnson.2 Sparkman
testified that Colorama had never terminated Johnson because of any workers’
compensation claim and that he was treated no differently than anyone else who
filed a claim. Further, Sparkman testified that Colorama carried Johnson’s health
insurance without cost to Johnson for almost a year.
Kevin Nelson, the former manager of the Colorama store at which
Johnson worked, also testified at trial. Nelson testified that he never received a
call from Johnson about returning to work, nor had anyone at the store advised him
that Johnson had called. Nelson testified that he did not hire anyone to replace
Johnson for approximately two months following the injury.
2
Johnson urges this Court to take notice that in an affidavit submitted by Sparkman in the
workers’ compensation claim, Sparkman stated that no light duty was available for Johnson at
Colorama.
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Finally, Colorama called David Lickliter, the Regional Manager, as a
witness at trial. Lickliter testified that he never heard from anyone, including
Johnson, that Johnson was trying to return to Colorama. Lickliter testified that
Johnson knew him and had contacted him directly on prior occasions.
As noted, a jury trial was held in this matter on February 4, 2008. At
the close of evidence, both Johnson and Colorama moved for directed verdicts,
both of which were denied by the court. The jury ultimately returned a verdict in
favor of Johnson in the amount of $8,645.00, the full amount of damages sought.
As noted, on February 11, 2008, the court entered judgment upon the jury verdict.
Subsequently, attorney fees and costs were approved by court order dated February
25, 2008. It is from that verdict and award of damages that Colorama now appeals.
Colorama also asserts that the court erred in denying its motions for directed
verdict. We review those issues respectively.
At the outset, we note that it was Johnson’s burden to establish a
prima facie case of discrimination because he filed the workers’ compensation
claim. As set forth in Dollar General Partners v. Upchurch, 214 S.W.3d 910, 915
(Ky. App. 2006), a plaintiff can meet that initial burden of proof by establishing
that: “(1) he engaged in a protected activity; (2) the defendant knew that the
plaintiff had done so; (3) adverse employment action was taken; and (4) that there
was a causal connection between the protected activity and the adverse
employment action.” See also Brooks v. Lexington-Fayette Urban County
Housing Authority, 132 S.W.3d 790 (Ky. 2004).
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The question, as framed by the courts of this Commonwealth, is
whether Johnson’s filing of a workers’ compensation claim was a substantial and
motivating factor but for which he would not have been discharged. See First
Property Management Corp. v. Zarebidaki, 867 S.W.2d 185 (Ky. 1993), and
Bishop v. Manpower, Inc. of Central Kentucky, 211 S.W.3d 71 (Ky. App. 2006).
In the matter sub judice, Johnson filed a workers’ compensation
claim, an activity expressly protected under KRS 342.197. See Overnight
Transportation Company v. Gaddis, 793 S.W.2d 129 (Ky. App. 1990). Colorama
was aware of the claim and accordingly, the first two elements of the cause of
action were satisfied. Colorama asserts that it never terminated Johnson but
instead kept him on the books and continued to pay his health insurance. Johnson
asserts that he was terminated and that Colorama never put him back on the
schedule. Colorama concedes that it never put Johnson back on the schedule.
Whether Johnson was terminated was a fact question, and one that, in
this instance, was decided affirmatively by the jury. It is not for this Court to
disturb the jury’s factual finding in that regard, as we will not disturb findings of
fact by a jury unless such findings are clearly erroneous. See Bluegrass Restaurant
Company v. Franklin, 424 S.W.2d 594, 597 (Ky. 1968), citing Simons v. Allen, 309
S.W.2d 755 (Ky. 1958). As we do not find that to be the case here, the jury’s
finding of fact will stand, and we will consider Johnson to have satisfied the third
element of the cause of action.
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Colorama asserts that Johnson failed to satisfy the fourth element of
the Upchurch test; namely, that he failed to prove a causal connection between the
protected activity and the adverse employment action. Johnson was not required to
demonstrate that the sole or even the primary reason for the termination was
related to the protected activity, but only that its pursuit was a “substantial and
motivating factor” in the decision to terminate. See First Property Management v.
Zarebidaki, 867 S.W.2d 185 (Ky. 1993). “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.” See Brooks, supra at 804.
Having reviewed the record below, we believe that Johnson presented
sufficient evidence such that reasonable minds could resolve those two elements in
his favor. Having so found, we believe that Johnson set forth a viable claim of
employment retaliation. It was for the jury to decide whether that was so and
whether Colorama effectively offered a legitimate, non-discriminatory reason for
the discharge. See Williams v. Wal-Mart Stores, 184 S.W.3d 492 (Ky. 2005).
In the instant matter, we believe that sufficient evidence existed for
the jury to believe that Johnson was terminated in retaliation for seeking workers’
compensation benefits, and we will not disturb that verdict on appeal.
Having so found, we do note that Colorama cites this Court to Wymer
v. JH Properties, Inc., 50 S.W.3d 195 (Ky. 2001), in support of its argument that
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Johnson should have been unable to maintain this claim because he was unable to
perform the work required. However, we find the matter sub judice to be
distinguishable from Wymer. In Wymer, the court held that Wymer was terminated
because she could not work and could not perform the essential job duties of any
position in the hospital, with or without reasonable accommodation. See Wymer at
200-201.
In the matter sub judice, Johnson was released to return to work
without restriction by Dr. Ballard, said he wanted to try to perform the work, and
may have been able to assume a light duty position according to the testimony of
Sparkman. We therefore find Wymer to be factually distinguishable and do not
believe it serves as an adequate basis to overturn the verdict of the jury in this
matter.
Having found that the jury verdict should be affirmed, it follows
logically that we affirm the court’s denial of the motions for directed verdict made
by the parties. The law is well established as to the standard of review to be
utilized on appeal of a motion for directed verdict:
The standard of review for an appeal of a directed verdict
is firmly entrenched in our law. A trial judge cannot
enter a directed verdict unless there is a complete absence
of proof on a material issue or there are no disputed
issues of fact upon which reasonable minds could differ.
Where there is conflicting evidence, it is the
responsibility of the jury to determine and resolve such
conflicts. A motion for directed verdict admits the truth
of all evidence favorable to the party against whom the
motion is made. Upon such motion, the court may not
consider the credibility of evidence or the weight it
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should be given, this being a function reserved for the
trier of fact. The trial court must favor the party against
whom the motion is made, complete with all inferences
reasonably drawn from the evidence. The trial court then
must determine whether the evidence favorable to the
party against whom the motion is made is of such
substance that a verdict rendered thereon would be
“palpably or flagrantly” against the evidence so as “to
indicate that it was reached as a result of passion or
prejudice.” In such a case, a directed verdict should be
given. Otherwise, the motion should be denied.
It is well-argued and documented that a motion for a
directed verdict raises only questions of law as to
whether there is any evidence to support a verdict. While
it is the jury's province to weigh evidence, the court will
direct a verdict where there is no evidence of probative
value to support the opposite result and the jury may not
be permitted to reach a verdict based on mere speculation
or conjecture.
Rothwell v. Singleton, 257 S.W.3d 121, 124 (Ky. App. 2008), citing Gibbs v.
Wickersham, 133 S.W.3d 494, 495-96 (Ky. App. 2004).
Having reviewed the record, we are in agreement with the court below
that sufficient evidence existed for the jury to find that Johnson was terminated in
retaliation for filing a workers’ compensation claim. Certainly, we cannot
conclude that Johnson failed to present any evidence of probative value in support
of his claim. While the evidence may have been conflicting, it was for the jury to
weigh the evidence and reach a conclusion. This, the jury did. Accordingly, a
directed verdict would have been improper and the court below was well within its
discretion in denying the motion made by Colorama in that regard.
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Accordingly, having found that the jury verdict was proper, and
further, having found that the court below properly denied the motions for directed
verdict, we affirm the award of attorney fees and costs granted on Johnson’s
behalf. KRS 342.197(3) authorizes an award of attorney’s fees and costs and it is
our job on appeal to determine whether the court abused its discretion in making
such an award. See King v. Grecco, 111 S.W.3d 877 (Ky. App. 2002). There was
no such abuse of discretion in the matter sub judice.
In any event, we note that on appeal, Colorama failed to name
Johnson’s attorney as a party to the appeal. Such failure will ultimately preclude
our review, even if an abuse of discretion had existed in this instance. See
Louisville Label v. Hildsheim, 843 S.W.2d 321 (Ky. 1992), Peabody Coal v.
Goforth, 857 S.W.2d 167 (Ky. 1993), and City of Devondale, Kentucky v.
Stallings, 795 S.W.2d 954 (Ky. 1990).
In light of the foregoing, having reviewed the record, the arguments of
the parties, and applicable law, we affirm the February 11, 2008, judgment of the
Floyd Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey A. Darling
Lexington, Kentucky
Thomas W. Moak
Prestonsburg, Kentucky
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