SANDRA C . BROOKS AND WILLIAM C . JACOBS V THE LEXINGTON-FAYETTE URBAN COUNTY HOUSING AUTHORITY ; AUSTIN J . SIMMS ; MARGARET BURCH ; AND JIM DESPAIN
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2001-SC-0816-DG
SANDRA C. BROOKS AND
WILLIAM C . JACOBS
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APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1999-CA-1578-MR AND 1999-CA-1655-MR
FAYETTE CIRCUIT COURT NO . 1992-CI-2843
THE LEXINGTON-FAYETTE URBAN COUNTY
HOUSING AUTHORITY ; AUSTIN J . SIMMS;
MARGARET BURCH ; AND JIM DESPAIN
APPELANTS
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
This is an employment discrimination and retaliation case, which was tried under
the Kentucky Civil Rights Act ("KCRA") in the Fayette Circuit Court . At trial, Appellant,
Sandra Brooks, claimed that Appellees, The Lexington-Fayette Urban County Housing
Authority, et al ., unlawfully discriminated against her on the basis of her race and
unlawfully retaliated against her for filing a discrimination complaint . Brooks lost on the
discrimination claim, but prevailed on the retaliation claim . The Court of Appeals
affirmed the judgment against Brooks on the discrimination claim and reversed the
judgment in her favor on the retaliation claim. We granted discretionary review to
address a number of important issues, including the application of the after-acquiredevidence doctrine and whether unlawful retaliation under Kentucky law is construed
consistently with federal law. For the reasons set forth below, we affirm in part, reverse
in part, and remand .
ISSUES
I. Discrimination : Directed Verdict
A. Facts
In 1987, The Lexington-Fayette Urban County Housing Authority ("the Housing
Authority") advertised in the Lexington paper an opening for an assistant housing
manager . Brooks, who is African-American, applied and was interviewed for the
position . During the course of the interview process, Brooks was told that a position for
a work order clerk was also available . While Brooks gave permission to be considered
for-the work order clerk position, she emphasized her strong preference for the better
paying assistant housing manager position .
At the conclusion of the interview process, Brooks was the top candidate for both
positions, although Brooks did not know this at the time . But instead of being offered
the assistant housing manager position, the Housing Authority offered her the work
order clerk position and Brooks accepted . The assistant housing manager position was
then readvertised. When Brooks learned that she had been the top candidate for the
position, she sought to reapply but was told that Housing Authority policy prohibited her
from applying for another position during her one-year probationary period . Ultimately,
a white female was hired for the position .
In 1990, a new assistant housing manager position was created . Brooks applied
for the job and was one of the top three candidates for the position at the conclusion of
the interview process . Brooks underwent a second interview with the designated
supervisor for the position, Shirley Cook. At trial, Cook testified that she was
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unsatisfied with all three candidates and reported this to Austin Simms, who was the
Housing Authority's executive director and ultimately responsible for the hiring decision .
Simms indicated to Cook that he would like to see Brooks get the job . At Simms'
request, Cook took Brooks to lunch to re-evaluate her. Cook's opinion of Brooks'
qualifications did not change and the assistant housing manager position was
readvertised .
Brooks again reapplied . At the conclusion of the interview process, Brooks did
not emerge as a top candidate, and a white female among the top three candidates
filled the position .
On appeal, Brooks argues that, after she established a prima facie case of
discrimination in connection with her initial hire in 1987, the failure to consider her for
the readvertised position in 1987 and the failure to promote her in 1990, the Housing
Authority failed to articulate a legitimate non-discriminatory reason for its actions .
Therefore, she argues that she was entitled to a directed verdict on her discrimination
claims. We disagree .
B . Discussion
It is unlawful for an employer to "fail or refuse to hire . . . 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 . . . ." KRS
344.040(1). In a claim arising under the statute, the plaintiff-employee bears the initial
burden of proving a prima facie case of discrimination . Jefferson County v. Zaring , 91
S .W .3d 583, 590 (2002), citing McDonnell Douglas Corp. v. Green, 411 U .S . 792, 93 S.
Ct. 1817, 36 L . Ed . 2d 668 (1973). One way this burden can be met is by proof that the
plaintiff (1) is a member of a protected class, (2) was qualified for and applied for an
available position, (3) did not receive the job, and (4) that the position remained open
and the employer sought other applicants. McDonnell Doug, 411 U .S. at 802, 93 S.
Ct. at 1824, 36 L . Ed . 2d . at 678. Upon establishing a prima facie case of
discrimination, the burden shifts to the defendant-employer to articulate a "legitimate
nondiscriminatory" reason for its action . Texas Department of Community Affairs v.
Burdine , 450 U .S . 248, 253, 101 S. Ct. 1089, 1093, 67 L . Ed. 2d 207, 215 (1981). After
the defendant has met this burden, "the McDonnell Douglas framework is no longer
relevant ." St. Mary's Honor Center v. Hicks , 509 U.S . 502, 510, 113 S. Ct. 2742, 2748,
125 L . Ed . 2d . 407, 418 (1993). This is because "the McDonnell Douglas presumption
is a procedural device, designed only to establish an order of proof and production ." Id .
at 521, 113 S . Ct. at 2755, 125 L . Ed . 2d . at 425 (emphasis in original) . The case then
proceeds with the plaintiff having to meet her burden of persuading the trier of fact by a
preponderance of the evidence that the defendant unlawfully retaliated against her.
Reeves v. Sanderson Plumbing Products, Inc . , 530 U .S . 133, 143, 120 S. Ct. 2097,
2106, 147 L . Ed. 2d . 105, 117 (2000).
On a motion for directed verdict, failure to introduce evidence of a legitimate,
non-discriminatory reason for its allegedly discriminatory employment practice is fatal to
the defendant-employer's case where the plaintiff has established a prima facie case of
discrimination, St. Marv's Honor Center, 509 U.S . at 509, 113 S . Ct. at 2748, 125 L. Ed.
2d . at 417-18 (1993), because the defendant-employer has failed to rebut the
presumption of discriminatory animus created by the plaintiffs prima facie case . We
now turn to Brooks' argument that she was entitled to a directed verdict because
the Housing Authority failed to produce evidence of a non-discriminatory reason for not
hiring her as, or promoting her to, an assistant housing manager .
i. Initial Application--1987
As to the initial failure to hire Brooks in 1987, both Brooks and the Housing
Authority rely on the reason articulated by the trial judge for denying Brooks' motion for
a directed verdict. This was Austin Simms' testimony that Brooks was not hired for the
assistant housing manager position because she had already been hired for the work
order clerk position . That is, the Housing Authority could not hire her for both positions .
But on appeal, we are not limited to the reasons articulated by the trial judge for
denying Brooks' directed verdict motion .
The standard of review of a trial court's denial of a motion for directed verdict is
set forth in Lewis v. Bledsoe Surface Mining Co . , Ky., 798 S .W.2d 459 (1990) :
Upon review of the evidence supporting a judgment entered upon a
jury verdict, the role of an appellate court is limited to determining whether
the trial court erred in failing to grant the motion for directed verdict. All
evidence which favors the prevailing party must be taken as true and the
reviewing court is not at liberty to determine credibility or the weight which
should be given to the evidence, these being functions reserved to the
trier of fact. The prevailing party is entitled to all reasonable inferences
which may be drawn from the evidence . Upon completion of such an
evidentiary review, the appellate court must determine whether the verdict
rendered is "'palpably or flagrantly' against the evidence so as 'to indicate
that it was reached as a result of passion or prejudice ."'
Id . at 461-62 (internal citations omitted) . Thus, our review is independent of the
grounds relied on or stated by the trial court to deny the directed verdict motion .
Rather, we must make our own review of the entire record to determine whether the
trial court's ruling was clearly erroneous . See Roethke v. Sanger, Ky., 68 S .W.3d 352,
365 (2001) . Upon this review, we conclude that the trial court's ruling was not clearly
erroneous.
First, we conclude that the reason relied on by the trial court was not, in isolation,
a legitimate reason for not initially hiring Brooks as an assistant manager .
The trouble with the Housing Authority's argument that it could not hire Brooks
for the assistant housing manager position because it hired her as a work order clerk is
that there is no evidence as to the timing of these two employment decisions . That is, if
the decision to readvertise the assistant housing manager position was made before
Brooks was offered and accepted the work order clerk position, then the Housing
Authority's asserted reason is no reason at all. If the decision to readvertise the
assistant housing manager position was made concurrently with the decision to hire
Brooks as a work order clerk, then, again the Housing Authority's asserted reason is no
reason at all, because the decision to hire her as a work order clerk necessarily
included a simultaneous rejection of her for the assistant housing manager position .
That is, under the concurrent decision scenario, the Housing Authority's decision to hire
Brooks as a work order clerk had no bearing on the decision to readvertise the assistant
housing manager position . The Housing Authority's asserted reason is only a legitimate
reason if the decision to hire Brooks for the work order clerk position was made before
the decision was made to readvertise the assistant housing manager position. But the
Housing Authority does not assert or imply that this was the case. At best, the Housing
Authority's asserted reason implies that the decision on both positions was made
simultaneously, which is not a legitimate reason. This, however, does not end the
discussion .
In most failure-to-hire or failure-to-promote cases, the defendant-employer's
asserted reason for not hiring or not promoting the plaintiff-employee is that the person
actually hired or promoted was the better candidate. See, e .g . , Kentucky Center for the
Arts v. Handle , Ky. App., 827 S .W .2d 697, 700 (1992). In the case where the position
is left unfilled, this is not a viable route for introducing a non-discriminatory reason for
the failure to hire or to promote . But the reason why the job was not filled by any of the
available applicants may provide a non-discriminatory reason . That is the case here .
The trial in the underlying case occurred about a decade after the initial failure to
hire Brooks as an assistant housing manager in 1987 . Austin Simms was the executive
director of the Housing Authority, and it was his decision not to fill the position at the
time . Somewhat understandably, he testified that he could not remember why the
assistant housing manager position was readvertised rather than filled by Brooks or one
of the other candidates for the job. While a naked lapse of memory is not sufficient to
create a genuine issue of material fact, see Carter v. Newsday, Inc. , 528 F. Supp. 1187,
1191 (E .D .N .Y. 1981) (deposition statements to the effect that the deponent "does not
remember" a particular fact, does not create a genuine issue of fact that precludes
granting summary judgment), Simms also testified that readvertising a position was a
common practice for the Housing Authority when, for some reason, the personnel
director was not comfortable with any of the top candidates recommended by the
interview panel . We believe that this testimony was sufficient to meet the Housing
Authority's burden of producing evidence of non-discriminatory reasons why Brooks
was not hired as an assistant housing manager in 1987 .
To state the obvious, an employer necessarily must hire and sometimes fire
employees . Employers being human, over time the individual and specific reasons for
making these decisions fade from memory. Thus, to make failure to remember the
reason for any particular employment decision fatal to a defense to a discrimination
claim would place an intolerable burden on employers to document the reason for every
employment decision as insurance against future lawsuits . Therefore, we hold that,
where an employer claims that the actual reason cannot be recalled, the employer may
rely on normal business practices and exemplary reasons consistent with those
practices when called upon under the McDonnell Douglas framework of producing a
non-discriminatory reason to rebut a plaintiffs prima facie case of discrimination.
Before concluding our discussion on this issue, we take a moment to reply to
Justice Cooper's dissenting opinion, which takes a chicken-little response to our recent
decision in Burchett v. Commonwealth, Ky., 98 S .W .3d 492 (2003) . With all due
respect, the sky is not falling . Burchett does not hold that all that is admissible under
FRE 406 is inadmissible in Kentucky. Rather, Burchett held that evidence that the
defendant smoked a marijuana joint every morning was not admissible to show that he
had smoked marijuana on the same day he was involved in an automobile collision in
which the driver of the other vehicle was killed . Id . at 499 . This holding was neither
new nor novel . The only remarkable thing about the opinion is the discussion of
whether such evidence-which, as conceded by the author of the dissent, had long
been excluded under Kentucky common law-was now admissible under the Kentucky
Rules of Evidence . We held that it was not .
In reaching our holding in Burchett , we relied on a number of pre-KRE cases that
held that evidence of habit or custom is not admissible to show that a party acted either
negligently or non-negligently on a particular day or time in question . See, etc . ,
Cincinnati, N .O . & T.P. Ry. Co . v. Hare's Adm'x, 297 Ky. 5, 178 S .W .2d 835 (1944),
overruled on other grounds, Louisville & N .R. Co . v. Fisher, 357 S .W .2d 683 (1962).
(Evidence of deceased's custom of carefully going over railroad crossings was not
admissible to show that the decedent acted non-negligently on the day he was struck
and killed by a train while going over a crossing .) But our holding in Burchett does not
affect all the types of evidence that might arguably be categorized as habit evidence
under FIRE 406 .
For example, if one uses the annotation to FIRE 406 as a guide, evidence
regarding custom and usage in a particular industry is admissible evidence under the
rule to assist the trial court to determine the meaning of an ambiguous contract . See
Maior v. Bishop, 462 F.2d 1277, 1279 (10th Cir. 1972) . Likewise, the annotation points
to evidence of custom and practice within a particular industry, group, or organization
as being admissible under the rule as evidence "bearing on the standard of care in
determining negligence." Muncie Aviation Corp . v. Party Doll Fleet, Inc. , 519 F.2d
1178, 1180 (5th Cir. 1975) . Business custom, practice, and usage have long been
admissible in Kentucky for these same purposes. See, etc . , Martin v. Ben P. Eubank
Lumber Co. , Ky., 395 S.W.2d 385, 386 (1965) (The "course of dealing between parties
and any usage of trade may be competent to explain any ambiguities in a contract.")
(internal quotation marks omitted) ; Bass v. Williams , Ky. App ., 839 S .W.2d 559,
565 (1992) ("While custom and usage may, under some circumstances, establish a
standard of care, it may not negate an established standard .")
To satisfy the curiosity expressed in the dissent, we explain that the above-cited
cases illustrate the point that Burchett merely reaffirmed the pre-KRE, common-law rule
that evidence of a party's particular "habit" is not admissible to prove that the party
acted either negligently or non-negligently in accordance with his or her habit. Burchett
does not exclude all evidence that falls within FIRE 406's umbrella of admissibility. It
does not preclude evidence of the custom and practice in an industry to prove the terms
of an ambiguous contract . Likewise, it does not preclude introduction of the evidence of
an entity's regular business practices that is part of the foundation necessary to
introduce business records under the hearsay exception of KRE 803(6). And Burchett
certainly does not preclude evidence of a defendant-employer's hiring practices and
criteria in an employment-discrimination case. Thus, the dissent's claim of "fowl" in
response to our reasoning is, in actuality, a cry of "wolf."
ii. Readvertised Position--1987
After the assistant housing manager position went unfilled, Brooks sought to
reapply for the position. At trial, Simms testified that the Housing Authority policy
prohibited Brooks from applying for another position during her one-year probationary
period, which began when she was hired as a work order clerk. He further testified that
this policy was enforced against blacks and whites alike . This stated reason for not
promoting her to the assistant housing manager position was sufficient to meet the
Housing Authority's burden under the McDonnell Douglas framework .
iii . Failure to Promote--1990
Brooks' argument on this point does not go to the substance of the Housing
Authority's proffered reason for not promoting her. Rather, she argues that the
testimony came from the wrong person . At trial, Shirley Cook testified that, at the
conclusion of the interview process, she was not satisfied with any of the top three
candidates who emerged from the interviews for the new assistant housing manager
position created in 1990. Brooks argues that this testimony was not relevant because
Cook was not the person responsible for the ultimate hiring decision . Rather, that
decision was for Austin Simms alone to make. Because Simms failed to testify as to
why Brooks was not hired, Brooks argues that the Housing Authority failed to meet its
burden under the McDonnell Douglas framework . But this argument ignores the import
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of Simms' testimony, which implied that he relied on the recommendation of others
when making employment decisions . This implication was reinforced by testimony that
Simms asked Cook to take Brooks to lunch in hopes of changing her recommendation .
Thus, the Housing Authority produced sufficient evidence of a non-discriminatory
reason why Brooks was not promoted in 1990.
If.
Retaliation : Adverse Action
On cross-appeal, the Housing Authority argues that the trial court erred by
denying its motion for a directed verdict on Brooks' retaliation claim. Before we reach
the merits of the issue, we need to resolve the question of what level of retaliatory acts
by an employer that a plaintiff must show to establish a prima facie retaliation claim
under the KCRA. The parties' disagreement on this point concerns the differences
between the federal retaliation statute and the Kentucky retaliation statute .
KRS 344 .280(1) makes it unlawful for one or more persons "[t]o retaliate or
discriminate in any manner against a person . . . because he has made a charge, filed a
complaint, testified, assisted or participated in any manner in any investigation,
proceeding, or hearing under the chapter." (Emphasis added) . Whereas, 42 U .S .C. §
2000e-3 makes it unlawful for an "employer to discriminate a ainst any of his
employees or applicants for employment." (Emphasis added) . Thus, the question
arises whether "discriminate in any manner" is broader in scope than "discriminate
against ." We conclude that there are no meaningful distinctions between the two
standards .
In Meyers v. Chapman Printing Co. , Ky., 840 S.W.2d 814 (1992), we were called
on to interpret KRS 344 .040 in connection with a claim for sexual harassment made
under the statute . Id . at 820. KRS 344.040 makes it unlawful for an employer to
"discriminate against an individual with respect to compensation, terms, conditions, or
privileges of employment, because of the individual's . . . sex." We interpreted the
statute consistent with federal law and held that for "sexual harassment to be
actionable, it must be sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment." Id. at 821 (emphasis
in original and internal quotation marks and brackets omitted), quoting Meritor Savinqs
Bank v. Vinson, 477 U .S . 57, 67, 106 S . Ct. 2399, 2405, 91 L . Ed . 2d . 49, 60 (1986).
Granted, KRS 344 .040 mirrors the federal statute's use of "discriminate against" rather
than the KCRA's use of "discriminate in any manner against," and so, on the surface,
Meyers ' reliance on federal law sheds no light on the argument at hand, i .e . , whether
there is a substantive difference between "discriminate" and "discriminate in any
manner ." But going deeper, the definition of "discrimination" found in KRS 344.010(5)
illuminates the path to a resolution .
" Discrimination means pny direct or indirect act or practice of exclusion,
distinction, restriction, segregation, limitation, refusal, denial, or any other act or practice
of differentiation or preference in the treatment of a person or persons. . . ." KRS
344 .010(5) (emphasis added). (Title VII does not define the term "discrimination .")
Under Brooks' argument, the KCRA's use of the word "any" should have led the
Meyers' Court to hold that a broader category of claims for "sexual harassment" are
actionable under Kentucky law than are available under federal law, but it did not. The
most likely reasons for this are that construing the KCRA consistent with federal law (1)
is consistent with the KCRA's stated purpose to "provide for execution within the state
of the policies embodied in the Federal Civil Rights Act of 1964 as amended," KRS
344 .020(1)(a) ; (2) promotes predictability in the law; (3) discourages forum shopping;
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and (4) attempts to strike an appropriate balance between an employer's legitimate
interests in conducting its business with minimal governmental interference and its
employees' legitimate interests in being treated with dignity and respect on the basis of
merit and individual achievement . Likewise, we believe the same interests are served
by interpreting unlawful retaliation under the KCRA consistent with the interpretation of
unlawful retaliation under federal law. This means that, as part of her prima facie case
of retaliation, Brooks had to show that she suffered an "adverse employment action" as
that term is defined under federal law.
Under federal law, a "plaintiff must identify a materially adverse change in the
terms and conditions of his employment to state a claim for retaliation under Title VII ."
Hollins v. Atlantic Co ., Inc. , 188 F.3d 652, 662 (6th Cir.1999) .
A materially adverse change in the terms and conditions of employment
must be more disruptive than a mere inconvenience or an alteration of job
responsibilities . A materially adverse change might be indicated by a
termination of employment, a demotion evidenced by a decrease in wage
or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique
to a particular situation .
Id ., quoting Crady v. Liberty National Bank & Trust Co. of Indiana , 993 F.2d 132, 136
(7th Cir. 1993). Having resolved this issue, we can now turn to the question of whether
Brooks' established a prima facie case of retaliation
Ill.
Directed Verdict : Retaliation
A. Facts
Brooks filed a formal discrimination complaint with the Lexington-Fayette Urban
County Human Rights Commission ("the Human Rights Commission") on July 2, 1991 .
By letter sent the same day, the Human Rights Commission sent formal notification of
the complaint filed by Brooks to Alan Sisk, who was the Housing Authority's personnel
manager .
On October 28, 1991, Brooks sent a letter or a memo to Suzanne Feng, who
was Brooks' supervisor, advising her to expect a telephone call from the Human Rights
Commission regarding the lunch meeting she had with Shirley Cook in connection with
Brooks' application for the new assistant housing manager position created in 1990. In
the letter, Brooks asked Feng to be truthful with the investigator . On November 8,
1991, Brooks was called to a meeting in the board room by Jim DeSpain, who was
deputy director of administrative services . Feng and Sisk were also in attendance .
Both parties dispute what occurred at this meeting ; however, in light of the standard of
review for directed verdict, we will accept Brooks' statement of what occurred .
According to Brooks, the meeting was very adversarial in nature . When Brooks
asked if everything was "OK," DeSpain stated that he was in charge of the meeting and
that if she said anything he did not like, he would write her up for insubordination and
fire her.
DeSpain proceeded to tell Brooks that on November 7, 1991, he observed her
reading a newspaper at the receptionist's desk for 25 to 30 minutes immediately prior to
her lunch break . According to DeSpain, after Brooks finished reading the paper, she
proceeded to take her entire lunch break . DeSpain also told Brooks that, on the same
day, he observed her talking with a man outside the building for an extended period of
time during work hours . DeSpain then accused Brooks of making an accounting error
on a HUD report which could have cost the Housing Authority thousands of dollars.
When Brooks told DeSpain that in reality she had found the error on a form which he
had principally prepared and brought the error to his attention, DeSpain became angry
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and "slapped" his hand back and forth at her. Although DeSpain did not physically
touch Brooks, she testified that his hand was so close that she could feel the hairs on
the back of his fingers . At that point, Brooks began to cry and asked to leave the room .
When Brooks returned to the meeting, Simms was present and had taken
charge . Simms then asked Brooks what was going on. She told him that DeSpain was
making false accusations against her. After discussing DeSpain's concerns, Simms
told Brooks that she should get permission from her supervisor to leave her desk for
any reason. Brooks asked Simms if other employees were required to obtain
permission to leave their desks. Simms told her not to worry about anyone else.
Although Simms denied telling Brooks to obtain permission to leave her desk, there was
no dispute that following the meeting Brooks did not leave her desk for any reason
without asking Feng's permission to do so. As a result of the November 8 meeting,
Brooks filed a sworn charge of retaliation with the Human Rights Commission on
November 14, 1991 .
Brooks testified that one day when she was preparing to leave her desk to go on
break, she saw a sheriff come into the Housing Authority to serve Simms with her
federal discrimination and retaliation complaint .' Before Brooks' break was over, Feng
came into the break room and told her that her break was over . Brooks accompanied
Feng to her office, where Feng told her that Sisk had just shortened her break time from
fifteen minutes to ten.
On cross-appeal, the Housing Authority argues that the above facts failed to
support, as a matter of law, Brooks' retaliation claim. We disagree .
Brooks first filed suit against the Housing Authority in federal district court, which complaint was
dismissed without prejudice .
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B. Discussion
A prima facie case of retaliation requires a plaintiff to demonstrate "(1) that
plaintiff engaged in an activity protected by Title VII ; (2) that the exercise of his civil
rights was known by the defendant; (3) that, thereafter, the defendant took an
employment action adverse to the plaintiff ; and (4) that there was a causal connection
between the protected activity and the adverse employment action ." Christopher v.
Stouder Memorial Hospital, 936 F .2d 870, 877 (6th Cir.1991), cert. denied ,
502 U.S . 1013, 112 S . Ct. 658, 116 L. Ed . 2d 749 (1991) . The Housing Authority first
argues that Brooks failed to prove the adverse-action element of her retaliation case. It
next argues that Brooks failed to prove the causal-connection element of her case . We
disagree with both of these arguments .
A material modification in duties and loss of prestige may rise to the level of
adverse action. In Kocsis v. Multi-Care Management, Inc. , 97 F .3d 876, 886-87 (6th
Cir. 1996), the Sixth Circuit held that the trial court properly granted the defendant
employer's summary judgment motion on the appellant's disability-discrimination claim
because she failed to show a materially adverse employment action . Id . at 887. In so
holding, the Kocsis Court reasoned "[I]n her new job as unit RN, she enjoyed the same
(or a greater) rate of pay and benefits, and her duties were not materially modified . She
submitted no evidence that she lost any prestige in her position because of her working
conditions or her title change." Id . at 886-87 . Brooks' evidence would support a finding
that her duties were materially modified by being restricted to her desk.
Brooks testified that she was singled out from other Housing Authority
employees and was required to ask permission from her immediate supervisor every
time she left her desk. This restriction applied for any reason ., including having to use
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the bathroom, checking a file, acting as an interpreter for deaf clients and applicants,
etc. Because no other employee was so restricted, it was objectively and subjectively
humiliating . This change in Brooks' duties subjected her to greater supervisory scrutiny,
carried an imputed diminished level of trust, and marked an objective decrease in
prestige . It was more than a de minimis employment action . See, etc .., Ford v. General
Motors Corp . , 305 F .3d 545, 554 (6th Cir. 2002). It was sufficient evidence of adverse
employment action to withstand a motion for a directed verdict. We now turn to the
Housing Authority's alternative argument that Brooks failed to establish a causal
connection between the adverse employment action and filing the discrimination
complaint.
In cases where there is no direct evidence of a causal connection, the causal
connection of a prima facie case of retaliation must be established through
circumstantial evidence . Nguyen v. City of Cleveland , 229 F.3d 559, 566 (6th Cir.
2000). Circumstantial evidence of a causal connection is "evidence sufficient to raise
the inference that [the] protected activity was the likely reason for the adverse action ."
Id . at 566. 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 , e .q . , Clark County School District v.
Breeden, 532 U.S . 268, 273, 121 S. Ct. 1508, 1511, 149 L . Ed . 2d . 509, 515 (2001) .
In this case, there is no argument concerning awareness of the protected
activity. The evidence established that the Housing Authority management personnel
responsible for the employment actions in question first learned of Brooks'
discrimination complaint sometime in July 1991 . The alleged adverse actions
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themselves did not occur until after the meeting on November 8, 1991 . This lapse of
time was too long to create, by itself, an inference of causality. Breeden, 532 U.S . at
273-74, 121 S . Ct. at 1511, 149 L. Ed . 2d. at 515. But here, the change in Brooks'
duties requiring her to ask for permission for any and all absences from her desk
occurred very close in time with a scheduled visit by the Human Rights Commission
officer assigned to investigate Brooks' discrimination complaint . Additionally, the
restriction was on its face punitive in nature in that it singled Brooks out for different
treatment . Finally, there was the additional testimony that her break time was arbitrarily
reduced from fifteen to ten minutes immediately after Sisk was served with Brooks'
federal discrimination and retaliation complaint . This evidence of a causal connection
was sufficient to survive the Housing Authority's motion for directed verdict . See, etc . ,
Little v. BP Exploration & Oil Co . , 265 F .3d 357, 365-66 (6th Cir. 2001). (The appellant,
who was terminated one year after filing an EEOC complaint and three months after
filing additional complaints, established a genuine issue of material fact on the issue of
the causal connection element of a retaliation claim where there was other evidence of
discrimination, including subjecting the appellant to disproportionate discipline for a
minor infraction.)
Therefore, we hold that the trial court did not err in denying the Housing Authority
motion for directed verdict on Brooks' retaliation claim .
IV. After-Acquired Evidence
A. Facts
After Brooks filed suit, the Housing Authority discovered that Brooks had made a
number of misrepresentations on her resume concerning her educational background
and achievement ("after-acquired evidence") . These included rounding up her GPA to
- 1 8-
3.0 from 2 .8, and a claim that she had a bachelor's degree in business administration
when, in fact, she had completed only a certain number of hours toward that degree .
Based on these misrepresentations and others, the Housing Authority moved for
summary judgment on grounds that these misrepresentations alone-had it been
aware of them at the time-would have excluded Brooks from consideration for being
hired for the assistant manager position or promotion to that position .
Relying on McKennon v. Nashville Banner Publishing Co . , 513 U .S. 352, 115 S .
Ct. 879, 130 L. Ed . 2d . 852 (1995), the trial court denied the summary judgment motion,
but precluded Brooks from seeking the remedies of reinstatement and front pay. Also,
at a later date, on the basis of the same ruling, the trial court refused to submit Brooks'
constructive discharge claim to the jury, which we will treat as a directed verdict on the
issue in the Housing Authority's favor.
On appeal, Brooks argues that the trial court failed to place the burden of proof
on the Housing Authority and, therefore, misapplied McKennon . While we agree, we
conclude that Brooks has failed to show how this error entitles her to any relief.
B. Discussion
The after-acquired-evidence doctrine concerns the effect of evidence of
employee misrepresentations occurring during the hiring or promotion process or
evidence of employee misconduct that occurs during employment, that comes to light
during the discovery process after the employee has filed suit . While most jurisdictions
have addressed this question, the results have been far from uniform . Resolutions
range from a complete bar to recovery to precluding the defendant from using it as a
defense . Stephen J . Humes, Annotation, After-Acquired Evidence of Employee's
Misconduct as Barring or Limiting Recovery in Action for Wrongful Discharge , 34
- 1 9-
A .L .R.5th 699 § 2(a) (1995). The U .S . Supreme Court resolved a split among federal
circuit court of appeals on the issue in McKennon , supra .
In McKennon , the Court began its discussion by eschewing the general rule that
a plaintiffs "unclean hands" acts as a complete bar to recovery because of the
important public purpose served by private discrimination suits . McKennon , 513 U .S. at
360, 115 S . Ct. at 885-86, 130 L . Ed. 2d. at 862-63. In other words, the Court rejected
the approach that after-acquired evidence acted as a complete bar to recovery . On the
other hand, the Court concluded that employee misconduct or misrepresentation was
still relevant to the issue of remedy and held "that as a general rule in cases of this
type, neither reinstatement nor front pay is an appropriate remedy." Id . at 361-62, 115
S . Ct. at 886, 130 L. Ed . 2d. at 863 . We cited McKennon with approval in Toyota Motor
Mfg ., U.S .A., Inc . v. Epperson . Ky., 945 S.W .2d 413, 416 (1996), and now hold that it
strikes the proper balance between the public's legitimate interest in vindicating
unlawful acts of discrimination and the employer's equitable interests arising from an
employee's wrongdoing .
Reinstatement is an equitable remedy. Slayton v. Ohio Dept. of Youth Services ,
206 F.3d 669, 680 (6th Cir. 2000). In essence, reinstatement functions as an injunction
issued by the trial court that orders the defendant-employer to rehire the plaintiff
employee after she has prevailed in an unlawful discrimination case under the KCRA.
Thus, the power to order reinstatement appears to fall within the trial court's power to
"enjoin further violations" under KRS 344.450 . 2 In the context of this case, this means
2 Neither party raises the issue of whether reinstatement and front pay are available remedies
under KRS 344 .450. Further, no Kentucky case specifically addresses the issue . For the purposes of this
opinion, we assume that the remedies are available .
-20-
that the decision whether to order reinstatement is an issue for the trial court and not
the jury. See Steelvest, Inc. v. Scansteel Service Center Inc . , Ky., 908 S .W .2d 104,
108 (1995). This is true for an award of front pay as well, Schwartz v. Gregori , 45 F.3d
1017, 1023 (6th Cir. 1995), cert. denied , 516 U .S. 819, 116 S . Ct . 72, 133 L. Ed . 2d 36
(1995), because "front pay" is "money awarded for lost compensation during the period
between judgment and reinstatement or in lieu of reinstatement ." Pollard v. E .I . du
Pont de Nemours & Co. , 532 U .S. 843, 846, 121 S . Ct. 1946, 1948, 150 L. Ed . 2d 62,
66 (2001) . In other words, front pay either supplements the equitable remedy of
reinstatement or acts as a substitute for it, though reinstatement remains the preferable
remedy. Schwartz, 43 F .3d at 1023 . Thus, the trial "court rather than the jury should
determine whether an award of front pay is appropriate, and if so, the amount of the
award ." Reneau v. Wayne Griffin & Sons, Inc . , 945 F.2d 869, 870 (5th Cir. 1991) .
Consequently, the decision whether reinstatement or front pay is precluded by a
defendant-employer's after-acquired-evidence defense is also to be made by the trial
court, and the trial court's decision is reviewed under the abuse of discretion standard .
Brochu v. City of Riviera Beach , 304 F .3d 1144, 1155 (11 th Cir. 2002).
Under McKennon , "[w]here an employer seeks to rely upon after-acquired
evidence of wrongdoing, it must first establish that the wrongdoing was of such severity
that the employee in fact would have been terminated on those grounds alone if the
employer had known of it at the time of the discharge ." McKennon , 513 U.S . at 362-63,
115 S . Ct. at 886-87, 130 L . Ed . 2d . at 864. To be allowed to use the after-acquiredevidence defense, the defendant-employer must show by a preponderance of the
evidence that "the after-acquired evidence would have led to her termination" or, in this
case, would have precluded Brooks from being hired or promoted to assistant housing
- 21 -
manager. Sheehan v. Donlen Corp . , 173 F.3d 1039, 1047-48 (7th Cir. 1999) ; see also
O'Day v. McDonnell Douglas Helicopter Co. , 79 F.3d 756, 761 (9th Cir. 1996) (citing
cases); Jones v . Board of Trustees of Community College District No. 508 , 75 F. Supp.
2d 885, 888 (N .D . III. 1999) . In the case at bar, the trial court did not evaluate the
Housing Authority's evidence of its after-acquired-evidence defense under this
standard . That is, the trial court misapplied the law.
In its order denying Brooks the remedies of reinstatement and front pay, the trial
court stated in a footnote :
The Court refuses to embroil itself in the semantics of determining exactly
what misrepresentations were made, the extent of such
misrepresentations, and the Defendant's prior knowledge of the
misrepresentations . It suffices to say, misrepresentations were made by
the Plaintiff.
The trial court gave no other reason for its decision . Thus, the trial court decided the
issue without first making a finding-under the preponderance-of-evidence standard
as to whether the Housing Authority would have terminated, not hired or promoted,
Brooks had it been aware of her misrepresentations . This oversight is of no
consequence in relation to Brooks' discrimination claims because the jury found against
her on those claims . Nor is it of any consequence to Brooks' retaliation claims because
those claims do not include a discharge from employment or a failure to promote as
adverse employment actions . But the trial court's ruling is of great consequence to
Brooks' constructive discharge claim .
Constructive discharge presents a question of fact that, in jury trials, should be
decided by the jury and not the trial court. Watson v. Nationwide Ins . Co. , 823 F.2d
360, 361 (9th Cir. 1987) ; see also, Steelvest , 908 S .W .2d at 108. Thus, the Housing
Authority's after-acquired-evidence defense had no bearing on whether the jury should
- 22-
have been instructed on the issue of Brooks' constructive discharge claim . Rather, the
defense was evidence for the jury to weigh in deciding for itself whether Brooks had
proved her case by a preponderance of the evidence . The trial court clearly erred in
granting the Housing Authority a directed verdict on Brooks' constructive discharge
claim based on its evaluation of the Housing Authority's after-acquired evidence.
Instead, the trial court should have decided Brooks' constructive discharge claim under
traditional directed verdict principles . So, we now turn to the question of whether
Brooks presented sufficient evidence to survive the Housing Authority's motion for a
directed verdict on her constructive discharge claim.
"The commonly accepted standard for constructive discharge is whether, based
upon objective criteria, the conditions created by the employer's action are so
intolerable that a reasonable person would feel compelled to resign ." Northeast Health
Management, Inc. v. Cotton, Ky. App., 56 S .W .3d 440, 445 (2001) (internal quotation
marks omitted) . Viewing the evidence introduced at trial in the light most favorable to
Brooks, we conclude that she failed to produce evidence of constructive discharge
upon which reasonable jurors could find for her under the above standard .
First, we note that, while constructive discharge may constitute an adverse
employment action within the meaning of the KCRA, not all adverse employment
actions constitute constructive discharge . See , e.g_., Meyers v. Nebraska Health and
Human Services , 324 F .3d 655, 659-61 (8th Cir. 2003). Thus, the fact that Brooks
introduced sufficient evidence of adverse action to support her retaliation claim does
not foreclose inquiry into the question of whether she introduced sufficient evidence to
support her constructive discharge claim . On appeal, she points to no other evidence
to support her constructive discharge claim;3 therefore, we must determine whether the
evidence of being restricted to her desk and having her break time reduced by five
minutes was sufficient to support the claim .
"A finding of constructive discharge requires an inquiry into both the objective
feelings of an employee, and the intent of the employer." Ford v. General Motors Corp . ,
305 F.3d at 554 (internal quotation marks omitted) . The latter requires the plaintiff to
show "that the employer intended and could reasonably have foreseen the impact of its
conduct on the employee ." Id. Under this objective standard, the restrictions the
Housing Authority placed on Brooks leaving her desk undoubtedly would make a
reasonable employee in Brooks' situation feel somewhat humiliated, irritated, and
frustrated by the burden . Further, a reasonable employee certainly would feel that
being singled out for a reduction in break time, without explanation or cause, was
unreasonable and unfair . While these conditions might well lead the reasonable
employee in Brooks' situation to look for other employment, the conditions were not
intolerable ; they would not compel resignation .
The changes in Brooks' working conditions were not made a public issue among
her co-workers . While Brooks argues that she subjectively felt shunned and ridiculed
by other employees because of these restrictions, she presented no objective evidence
that this was so or even that this was commonly known among her co-workers . In fact,
she testified that Feng felt sorry for her and sympathized with her. Further, there was
no evidence that the trip to Feng's desk to ask permission to leave her desk was unduly
difficult or burdensome, i .e. , that the trip was long, circuitous, etc. Finally, there was no
3 Brooks also argues that she was required to work in the maintenance warehouse, which was not
in her job description and was not required of other employees with the same job title. She does not,
however, cite to the record in support of this claim . We, therefore, decline to consider its impact, if any, on
this discussion . Elwell v. Stone, Ky. App ., 799 S .W.2d 46, 47 (1990) ; CR 76.12(4)(c)(iv) .
-24-
evidence to show that, through these actions, the Housing Authority intended and
foresaw that Brooks would resign as a result . Therefore, we hold that, while relying on
the wrong grounds, the trial court nonetheless correctly granted the Housing Authority's
motion for a directed verdict on Brooks' constructive discharge claim .
V. Individual Liability
Brooks argues that the trial court erred in dismissing her retaliation claims
against the three individuals allegedly responsible for retaliating against her. The basis
of this argument is that KRS 344.280 states in pertinent part that "[I]t shall be an
unlawful practice for a person, or for two (2) or more persons to . . . retaliate . . ."
(emphasis added) . In turn, "person" is defined in the KCRA to include "one (1) or more
individuals ." KRS 344.010(1). Thus, a persuasive argument is made that individuals
can be held liable for unlawful retaliation under KRS 344 .280. See Morris v. Oldham
Countv Fiscal Court , 201 F.3d 784, 794 (6th Cir. 2000) (holding that individuals can be
held liable under KRS 344 .280 and noting the difference in language between the
KCRA and Title VII) . But the issue is moot.
Brooks has a judgment against the Housing Authority for her unlawful retaliation
claims, which we are instructing the trial court to reinstate. She cannot retry the issue
against the agents for whom the principal-their employer, the Housing Authority-has
already been found liable. Therefore, there is no relief we can grant Brooks on this
issue.
VI. Punitive Damages
Brooks argues that the trial court erred in failing to instruct the jury on punitive
damages . Subsequent to the briefing of this case, we held that punitive damages are
not an available remedy under KRS 344 .450 in Kentucky Dept. of Corrections v.
-25-
McCullough , Ky.,
S .W .3d
(2003). Therefore, we hold that the trial court
correctly decided the issue.
VII. Instructions
Brooks argues that the trial court erred in failing to instruct the jury according to
the three-stage, burden-shifting format articulated in Kentucky Center for the Arts v.
Handle , supra . In essence, she argues that the jury should have been instructed to
weigh each party's burden of production in turn . No authority is cited for this argument
and it is contrary to Kentucky law. See Meters v. Chapman Printing, Inc. , 840 S.W .2d
at 824 . ("In Kentucky jury instructions do not include evidentiary presumptions .") There
was no error.
VIII . Attorney Fees
Finally, Brooks argues that the trial court erred in setting the attorney fee award
at $150.00 per hour. According to Brooks, she put into evidence that $200.00 per hour
was a reasonable fee, and the Housing Authority failed to put into evidence anything to
show that this was not a reasonable amount . Thus, she argues that the trial court
abused its discretion in setting the hourly fee at $150.00 per hour because there was no
evidentiary basis in the record to set it at the lower amount. This argument is not well
taken .
KRS 344 .450 provides :
Any person injured by any act in violation of the provisions of this chapter
shall have a civil cause of action in Circuit Court to enjoin further
violations, and to recover the actual damages sustained, together with the
costs of the law suit . The court's order or iudgment shall include a
reasonable fee for the plaintiffs attorney of record and any other remedies
contained in this chapter .
(Emphasis added) . Thus, the issue is not whether the trial court had sufficient evidence
- 26-
before it to set the amount of Brooks' attorney's fee, but rather, whether the fee set by
the trial court was reasonable . Because Brooks has made no argument on appeal that
the $150 .00 per hour is not a reasonable fee, there is no issue for us to decide .
CONCLUSION
In view of the foregoing, we affirm the Court of Appeals' holding that the trial
court correctly denied Brooks' motion for a directed verdict on her discrimination claims,
affirm its holding that the trial court correctly granted the Housing Authority's motion for
a directed verdict on Brooks' constructive discharge claim, and affirm its holding that the
trial court did not abuse its discretion in its award of attorney fees . We reverse the
Court of Appeals' holding that the trial court erred in denying the Housing Authority's
motion for a directed verdict on Brooks' retaliation claim . Consequently, we remand this
case to the Fayette Circuit Court to reinstate the judgments in Brooks' favor.
Wintersheimer, J., concurs .
Lambert, C .J ., concurs as to Parts I, II, IV, V, VI, VII, and VIII, and dissents as to
Part III by separate opinion, in which he is joined by Graves and Cooper, JJ .
Cooper, J ., dissents by separate opinion, in which Graves, J., joins as to Part I .
Graves, J ., concurs as to Parts II, IV, V, VI, VII, and VIII, joins the dissent of
Cooper, J ., as to Part I, and joins the dissent of Lambert, C .J ., as to Part III .
Keller, J ., concurs as to Parts I(A), I(B)(ii & iii), IV, VI, VII, and VIII and, by
separate opinion in which he is joined in part by Stumbo, J ., writes separately as to Part
II, and concurs in result only as to Parts I(B)(i), III, and V.
Stumbo, J ., concurs as to Parts I, IV, VI, VII, and VIII, concurs in result only as to
Parts III and V, and joins the separate concurring opinion of Keller, J ., in part as to the
analysis of Parts II, III, and IV.
COUNSEL FOR APPELLANTS :
William C. Jacobs
173 North Limestone Street
Lexington, KY 40507-1122
COUNSEL FOR APPELLEES :
Winifred Bryant Becker
Philip C . Eschels
Greenebaum, Doll & McDonald, PLLC
3300 National City Tower
101 South Fifth Street
Louisville, KY 40202
AS MODIFIED : MAY 20, 2004
RENDERED : JANUARY 22, 2004
TO BE PUBLISHED
,Sixyrattt Qlaurf of ~tttfurkg
2001-SC-0816-MR
SANDRA C. BROOKS AND
WILLIAM C . JACOBS
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1999-CA-1578-MR AND 1999-CA-1655-MR
FAYETTE CIRCUIT COURT NO . 1992-CI-2843
THE LEXINGTON-FAYETTE URBAN
COUNTY HOUSING AUTHORITY ;
AUSTIN J . SIMMS ; MARGARET BURCH ;
AND JIM DESPAIN
APPELAEES
CONCURRING OPINION BY JUSTICE KELLER
I join the plurality opinion as to Parts I(A), I(B)(ii & iii), IV, VI, VII and VIII . I agree
with the ultimate result reached in the opinion, but I concur in result only as to Parts
I(B)(i) (because Brooks raised no objection to the inadmissible habit evidence), III, and
V . I write separately to express in more depth my views as to (1) Part II, which I do not
join - and would dissent from if it were a holding instead of merely analysis ancillary to
the opinion's Part III holding - because I disagree with the plurality opinion's
interpretation of KRS 344.280(1), and (2) Part V, because I would squarely address
Appellant's argument that the trial court erroneously dismissed her retaliation claims
against the individual defendants, Appellees Simms, Burch, and DeSpain .
In my view, the plurality opinion's conclusion that "as part of her prima facie case
of retaliation, Brooks had to show that she suffered an `adverse employment action' as
that term is defined under federal law"' erroneously construes Kentucky's antiretaliation statute in lockstep with its federal counterpart despite substantive differences
between the statutes . By ignoring these differences, today's opinion unnecessarily
dilutes the scope of KRS 344.280(1), by which the General Assembly intended to
provide greater civil rights protection than is available under federal law.
In Part II(B), the plurality opinion states that the scope of retaliation liability under KRS
344 .280(1) is coextensive with liability for acts of discrimination prohibited by Title VII's
anti-retaliation provision, 42 U .S .C. § 2000e-3. As I wrote when this Court last
considered an interpretive issue relating to KRS 344 .280(1), any "policy considerations"
that would favor harmonizing KRS 344.280(1) with federal law are eclipsed by the fact
that Kentucky's anti-retaliation provision addresses itself to a broader class of potential
actors and prohibits a broader range of conduct than federal law does :
[A]Ithough this Court has stated that, because of the
overlapping policy goals, federal authority "offers some
guidance" to Kentucky Courts faced with interpretive
questions, . . . reliance upon federal authority in this instance
ignores substantive differences between the Kentucky and
federal statutes . Kentucky's anti-retaliation provision, KRS
344.280(1), explicitly makes it unlawful for any person "[t]o
retaliate or discriminate in any manner against a person . . .
because he has made a charge under this chapter." The
Kentucky provision is thus broader than the one contained in
Title VII of the 1963 Civil Rights Act because : (1) the
Kentucky provision applies to all persons instead of merely
employers and labor organizations ; and (2) the Kentucky
provision condemns any retaliatory act instead of merely
acts of discrimination .2
Brooks v . Lexington-Fayette Urban County Housinq Authority, Ky.,
- (200_) (Slip Op . at 14).
S .W .3d
2 Bank One, Kentucky, N .A . v. Murphy, Ky., 52 S .W .3d 540, 552 (2001) (Keller,
,i., concurring in part and dissenting in part) (footnotes omitted) .
A close examination of the plurality opinion's analysis on this issue reveals that it
overlooks critical prohibitory language in KRS 344.280(1). The opinion reasons:
Brooks' argument on interpretation depends with the
difference between the federal statute and the state statute.
While KRS 344 .280 makes it unlawful for one or more
persons to "discriminate in any manner against a person"
(emphasis added), 42 U.S .C. § 2000e-3 makes it unlawful
for an "employer to discriminate against any of his
employees or applicants for employment." Thus, the
question arises whether to "discriminate in any manner" is
broader in scope than "discriminate against ." We conclude
that there are no meaningful distinctions between the two
standard s. 3
This analysis either overlooks or ignores the fact that KRS 344.280(1) contains
prohibitory language other than "discriminate," namely the verb "to retaliate," which is
separated from "discriminate" by the disjunctive "or." Thus, the appropriate question is
not whether "discriminate in any manner' is broader than "discriminate against," but
whether, by making it unlawful for persons to "retaliate or discriminate in any manner,"
KRS 344.280(1) prohibits retaliatory acts in addition to "discriminat[ing] against" an
employee .
In my view, KRS 344.280(1) is unquestionably broader in scope than Title VIPs
anti-retaliation provision . Perhaps the clearest reason to interpret "to retaliate" as
having significance distinct from "discriminate" is the fact that the Kentucky General
Assembly utilized two (2) verbs rather than one (1) when it wrote the statute . 4 The fact
that KRS 344 .280 "plainly permits the imposition of liability on individuals, ,5 however,
3 Brooks ,
S .W.3d at
(Slip Op. at 12-13) (emphasis in original) .
4 See TRW Inc. v. Andrews , 534 U .S . 19, 31, 122 S .Ct. 441, 449, 151 L .Ed .2d
339 (2001) ("It is `a cardinal principle of statutory construction' that `a statute ought,
upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or
word shall be superfluous, void, or insignificant.").
5 Morris v. Oldham County Fiscal Court , 201 F.3d 784, 794 (6th Cir. 2000) .
-3-
helps to explain further the purpose for the "to retaliate" language. By making unlawful
any act of retaliation or discrimination committed by "a person . . . or two or more
persons" acting as part of a conspiracy, 6 KRS 344.280(1) diverges from federal law'
and offers protection from retaliation over and above both Title VII and KRS 344 .040,
which "afford[ ] protection from discrimination only to those in an employer-employee
relationship . ,,8 As such, KRS 344 .280(1) encompasses all acts of vengeance taken in
response to KRS Chapter 344 claims - even when the act taken would not constitute a
prohibited act of discrimination .
Accordingly, Kentucky Center for the Arts v. Handle y9 correctly recognized the
significance of KRS 344.280(1)'s "to retaliate or discriminate in any manner" language
when it outlined the elements of a retaliation plaintiff's prima facie case.° And, I vote to
reverse the Court of Appeals and to reinstate the jury's verdict in favor of Brooks on her
retaliation claim, because the trial court correctly denied the Housing Authority's motion
for a directed verdict after Brooks sufficiently proved that she had suffered
"disadvantageous acts" in retaliation for her Kentucky Civil Rights ("KCRA") claim .
6 KRS 344 .280 .
Morris , 201 F .3d at 794 ("This section does not `mirror' 42 U .S .C . § 200e-3(a),
the analogous retaliation provision of Title VII, which forbids retaliation by "an
employer." Rather, § 344 .280 forbids retaliation by "a person .").
part) .
8 Bank One, 52 S .W.3d at 547 n .2 (Keller, J ., concurring in part and dissenting in
9 Ky .App ., 827 S .W .2d 697 (1991).
10
I would note that, although today's plurality opinion disregards Handley 's
articulation of a prima facie case for retaliation, this Court evaluated a sufficiency of the
evidence issue pursuant to Handley in our most recent opinion in an employment
discrimination case, which was rendered in August of 2003. See Kentucky Department
of Corrections v. McCullough, Ky.,
S.W.3d
(200_) (Slip Op . at 4).
By adopting Title VI I's "adverse employment action" requirement, today's opinion
accomplishes its objective of interpreting KRS 344.280(1) in accordance with federal
law . By doing so, however, the plurality opinion ignores significant statutory differences
and, by importing a requirement developed in connection with a narrower retaliation
statute, "waters down" KRS 344 .280(1) and sows the seeds of future headaches. For
instance, how will the federal "adverse employment action" requirement affect
retaliation claims brought under KRS 344 .280(1) against individual non-employer/noncoworker persons, i.e . , persons who, under Kentucky's anti-retaliation statute, are
prohibited from retaliating or discriminating "in any manner," but are unlikely to be in a
position to take "adverse employment actions" against a plaintiff? I fear that today's
opinion constitutes a "judicial rollback" of the strong position that Kentucky has taken in
support of the free exercise of rights guaranteed by the KCRA through its enactment of
KRS 344 .280(1), which is designed to prohibit any act in retaliation for the exercise of a
person's rights under the Act.
Additionally, I write separately as to Part IV because the plurality opinion does
not adequately address the issue presented, i .e . , whether individuals can be held liable
for unlawful retaliation. Although it characterizes Brooks's allegation as "a persuasive
argument" and references the unequivocal KRS 344 .010(1) definition of "person," the
plurality opinion bypasses the issue of individual liability by holding that Brooks's
judgment against the Housing Authority renders moot the question of whether the trial
court properly dismissed her claims against Appellees Simms, Burch, and DeSpain .
While I would agree that the issue is essentially moot because, as long as the Housing
Authority satisfies the judgment, Appellant will have been fully compensated for her
injuries," I find Brooks's argument more than merely "persuasive," and I would hold that
the trial court erred when it dismissed her claims against the individual defendants . 12
Although the Housing Authority could be - and was, by the jury's verdict - held
vicariously liable for the conduct of its employees, 13 it is long-standing, black-letter law
that a principal and an agent are, under normal circumstances, jointly liable for the
agent's actions . 14 Accordingly, the fact that the Housing Authority could have been
vicariously liable was irrelevant to the separate question of whether Appellees Simms,
Burch, and DeSpain were individually liable for acts of retaliation prohibited by KRS
11 RESTATEMENT (SECOND) OF JUDGMENTS § 50(2) (1980) ("Any consideration
received by the judgment creditor in payment of the judgment debtor's obligation
discharges, to the extent of the amount of value received, the liability to the judgment
creditor of all other persons liable for the loss .") . Id . cmt . d .
12 See Palmer v. Intern . Assn of Machinists , Ky., 882 S .W .2d 117, 120 (1994)
(reversing summary judgment and remanding KRS 344.280 retaliation claim against
two individual, non-employer defendants) .
13
Cf. American General Life & Acc. Ins. v. Hall , Ky ., 74 S.W.3d 688, 692 (2002)
(observing that statutory civil rights actions represent an exception to the general rule
that "an employer is not vicariously liable for an intentional tort of an employee not
actuated by a purpose to serve the employer[ .]") . But see Degener v. Hall Contracting
Corp . , Ky., 27 S.W.3d 775, 788-89 (2000) (Keller, J ., dissenting) (opining that KRS
344 .040 "hold[s] employers, and only employers, directly liable for sexual discrimination
in the workplace." (emphasis added)) . In the context of KRS 344 .280, which extends
liability to "any person," however, an employer may be held either directly liable for its
own acts of retaliation, see Mountain Clay v. Com'n on Human Rights , Ky.App ., 830
S.W .2d 395 (1992) or vicariously liable for the retaliatory acts of employees, as
occurred in this case .
14 See Aetna Life Ins. Co. v . Roper, 243 Ky., 811, 50 S .W.2d 8, 9 (1932) ("[A]
master and servant may be jointly liable to a third party for a negligent act of the
servant[ .]") ; New Ellerbie Fishing Club v. Stewart, 123 Ky. 8, 93 S .W. 598, 599 (1906)
("[I]t is now well settled that a joint action may be prosecuted against the servant and
master, or the corporation and its employe, for a tort of the servant or agent whilst
acting within the scope of his employment.") ; Illinois Cent. R. Co. v. Coley , 121 Ky. 385,
89 S .W. 234, 237 (1905) ("[W]e see no reason why the principal and the agent may not
be sued jointly for the wrong done by the agent in the course of his agency. Any other
rule would do injustice, as it would require the plaintiff to prosecute two actions, or force
him to elect between wrongdoers as to which he would sue.").
344.280(1) . In my view, the trial court should have permitted Brooks to pursue her
retaliation claims against the defendants collectively.
Stumbo, J., joins in part as to the analysis of Parts II, III, and IV.
RENDERED : JANUARY 22, 2004
TO BE PUBLISHED
,$uyrrmr~ %uvurf of
irufurkV
2001-SC-0816-DG
SANDRA C. BROOKS AND
WILLIAM C. JACOBS
V
APPELLANTS
ON REVIEW FROM THE COURT OF APPEALS
1999-CA-1578-MR AND 1999-CA-1655-MR
FAYETTE CIRCUIT COURT NO. 1992-CI-2843
THE LEXINGTON-FAYETTE URBAN
COUNTY HOUSING AUTHORITY ;
AUSTIN J . SIMMS ; MARGARET BURCH;
AND JIM DESPAIN
APPELANTS .
DISSENTING OPINION BY CHIEF JUSTICE LAMBERT
I respectfully dissent from the majority opinion with respect to Appellant's
claim of retaliation . In my view, Appellant failed to present sufficient evidence to
establish a prima facie case .
The pertinent facts of this case deal with the Housing Authority's actions
following Brooks' initiation of a discrimination suit. Brooks alleged that during a meeting
with a supervisor she was "slapped at" by that supervisor but without physical contact .
Following the meeting, she was required to request permission from her immediate
supervisor to leave her desk for any reason . Additionally, Brooks claimed that her
breaks were arbitrarily shortened from fifteen to ten minutes . Finally, she alleged that
the Housing Authority unfairly required her to work in a warehouse, even though she
had previously worked there prior to her discrimination suit .
The Court of Appeals was correct in determining that Brooks' complaints
regarding the activities of the Housing Authority "do not rise to the level of adverse
employment action ." It also correctly held that "Brooks had failed to make a prima facie
showing of retaliation ."
The majority is correct that there is no meaningful distinction between
KRS 342 .280 and its federal counterpart 42 U .S .C. §2000e-3 . Since Kentucky law and
federal law are substantially similar, it follows that we may rely on federal case law for
guidance in applying the Kentucky Act.'
In Hollins v. Atlantic Company, Inc. ,2 an employment discrimination and
retaliation case, the employer enforced its personal grooming policy on an employee by
requiring her to receive permission for hairstyle changes. The Hollins court explained
the requirements for determining whether an employer's actions constitute an adverse
employment action :
[A] materially adverse change in the terms and conditions of
employment must be more disruptive than a mere
inconvenience or an alteration of job responsibilities . A
materially adverse change might be indicated by a
termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a
particular situation.
' See Meyers v. Chaoman Printing Co . , Ky., 840 S .W .2d 814 (1992) .
2 188 F.3d 652 (6 Cir. 1999).
3 _Id . at 622 (quoting Crady v. Liberty Nat'l Bank & Trust Co. of Indiana, 993 F .2d 132,
136(7 th Cir. 1993)).
In Hollins, the court held that the employee did not establish a prima facie case and that
"lowered performance rating, standing alone" did not result in an adequate showing for
an adverse employment action .4 Thus, an employer must engage in a substantial
activity that has a materially adverse effect on employment. The United States Court of
Appeals for the Third Circuit properly described the standard :
Retaliatory conduct other than discharge or refusal to rehire
is thus proscribed by Title VII only if it alters the employee's
"compensation, terms, conditions, or privileges of
employment," deprives him or her of "employment
opportunities," or "adversely affect[s] his [or her] status as an
employee ." It follows that "not everything that makes an
employee unhappy" qualifies as retaliation, for "[o]therwise,
minor and even trivial employment action that 'an irritable,
chip-on-the-shoulder employee did not like would form the
.-5
basis of a discrimination suit
Brooks' supervisor, the offender, engaged in rude, mean-spirited,
generally obnoxious conduct toward her . Perhaps his conduct was such as to merit
employment sanctions against him. However, his bad conduct did not meet the legal
standards described hereinabove . Brooks was not subjected to materially adverse
changes in her employment as required by prevailing law. The Robinson court warned
that too broad an interpretation of Title VII could lead to a circumstance where "irritable,
chip-on-the-shoulder employee[s]" could too easily state a, claim for discrimination or
retaliation based on minor irritants that inevitably occur in the workplace . I fear this
Court has set the bar so low that employers will be severely limited in their ability to
manage their businesses for fear of claims such as this.
Cooper and Graves, JJ., join this dissenting opinion .
4 _Id .
5 Robinson y. City of Pittsburgh. , 120 F.3d 1236, 1300 3rd Cir . 1047)(citations omitted) .
AS MODIFIED : MAY 20, 2004
RENDERED : JANUARY 22, 2004
TO BE PUBLISHED
,*uyrrmt (~vurf of
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2001-SC-0816-DG
SANDRA C. BROOKS AND
WILLIAM C . JACOBS
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1999-CA-1578-MR AND 1999-CA-1655-MR
FAYETTE CIRCUIT COURT NO. 1992-CI-2843
V
THE LEXINGTON-FAYETTE URBAN
COUNTY HOUSING AUTHORITY;
AUSTIN J. SIMMS ; MARGARET BURCH;
AND JIM DESPAIN
APPELANTS
DISSENTING OPINION BY JUSTICE COOPER
Federal Rule of Evidence (FRE) 406 provides :
Evidence of the habit of a person or of the routine practice of an
organization , whether corroborated or not and regardless of the presence
of eyewitnesses, is relevant to prove that the conduct of the person or
organization on a particular occasion was in conformity with the habit or
routine practice .
(Emphasis added .)
For at least one hundred years, the common law rule in Kentucky has been that
such evidence is inadmissible . Burchett v. Commonwealth , Ky ., 98 S .W.3d 492, 494-95
(2003). The Committee that drafted the proposed Kentucky Rules of Evidence
recommended departure from the common law rule and adoption of a proposed rule
identical to FRE 406. Evidence Rules Study Committee, Final Draft, at 29-30 (1989).
The rule was approved by the 1990 General Assembly subject to the approval of the
Supreme Court of Kentucky. KRS 422A.0406 (1990 Ky. Acts, ch . 88, §§ 16, 93).
Unfortunately, the 1991 Kentucky Supreme Court disapproved of proposed KRE 406,
and the 1992 General Assembly accordingly repealed KRS 422A .0406 (1992 Ky. Acts,
ch . 324, § 30). Thus, evidence that is admissible in all federal courts under FIRE 406
and admissible in all of the other forty-nine states by statute, rule, or common law,
Burchett , at 506-08 (Cooper, J., dissenting), remains inadmissible in Kentucky. Id . at
496-98 (plurality opinion) (all evidence of habit or routine practice, while relevant under
KRE 401 and otherwise admissible under KRE 402, is always excluded by KRE 403) ;
id . at 499-502 (Keller, J ., concurring) (Supreme Court's rejection of proposed KRE 406
precludes admission under KRE 402) .
Burchett is less than a year old . Yet, today's lead opinion states:
To state the obvious, an employer necessarily must hire and
sometimes fire employees . Employers being human, over time the
individual and specific reasons for making these decisions fade from
memory. Thus, to make failure to remember the reason for any particular
employment decision fatal to a defense to a discrimination claim would
place an intolerable burden on employers to document the reason for
every employment decision as insurance against future lawsuits.
Therefore, we hold that, where an employer claims that the actual reason
cannot be recalled, the employer may rely on normal business practices
and exemplary reasons consistent with those practices when called upon
under the McDonnell Douglas framework [to produce] a non-discriminatory
reason to rebut a plaintiffs prima facie case of discrimination .
Ante , at
(slip op . at 7-8) (emphasis added).
Of course, the only reason for admitting evidence of "the habit of a person or the
routine practice of an organization," FIRE 406, is that the witness, as here, cannot
remember what action was actually taken or the reason therefor on the occasion in
question ("the actual reason cannot be recalled," ante , at
(slip op. at 8)) and is
forced to rely on the witness's own habits or the routine practice of the witness's
organization to fill that gap. Of course, I agree that this evidence is relevant and, thus,
admissible under KRE 402 ("All relevant evidence is admissible, except as otherwise
provided by the Constitutions of the United States and the Commonwealth of Kentucky,
by these rules, or by other rules adopted by the Supreme Court of Kentucky."). See
Burchett , supra, at 502-13 (Cooper, J ., dissenting) .
The lead opinion's reliance on Major v. Bishop, 462 F .2d 1277 (10th Cir. 1972),
and Muncie Aviation Corp. v. Party Doll Fleet, Inc . , 519 F.2d 1178 (5th Cir. 1975), is
curious at best . Both cases were decided under common law principles that existed
prior to the 1975 adoption of the Federal Rules of Evidence . And because they are both
federal cases, they would be decided the same way today under FRE 406. The lead
opinion's citation to Martin v. Ben P. Eubank Lumber Co. , Ky., 395 S .W.2d 385 (1965),
is even more misplaced . That case was governed by the Uniform Commercial Code
which specifically defines "course of dealing" and "usage of trade," KRS 355 .1-205, and
permits evidence of such to prove the existence, and terms of, and modifications to
contracts of sale or lease under certain specified circumstances . See KRS 355.2202(a); KRS 355 .2-208(1); KRS 355.2-314(3) ; KRS 355.2-504(b) ; KRS 355.2-723(2) ;
KRS 355.2A-202(1); KRS 355 .2A.207(1) ; KRS 355 .2A-212(3) ; KRS 355.2A 214(3)(c) ;
KRS 355.2A-507(2). Manifestly, the provisions of the Uniform Commercial Code have
nothing to do with the case sub iudice. Finally, the relevance of Bass v. Williams , Ky.
App., 839 S .W .2d 559 (1992), escapes me . Bass specifically held that the proffered
evidence of custom and usage to prove standard of care was properly excluded, id. at
565, and cited no case in which such evidence had ever been admitted to prove a
standard of care (but only speculated that it might be admissible under some
-3-
unspecified circumstances). Id. Of course, the evidence in question here is deemed
admissible by the lead opinion not to prove a commercial contract or a standard of care
but to prove conforming conduct on another occasion, i .e . , habit evidence .
If Burchett is to be the law of this jurisdiction, it should be applied consistently
and not on an ad hoc basis . (The habit evidence deemed inadmissible in Burchett was
much more reliable than the habit evidence deemed admissible by the lead opinion in
this case because the evidence in Burchett was self-inculpatory, and the habit evidence
here was self-serving .) This Court should either adhere to Burchett or overrule it, or (at
least) hold that the McDonnell Douglas framework was satisfied here solely because
Appellant did not object to the introduction of otherwise inadmissible evidence of
Appellee's routine business practices. Instead, the lead opinion resorts to childish
characterization ("chicken little"?) in defense of unsound legal analysis .
Graves, J., joins this dissenting opinion .
,Suprmt (fourf of ~mfurkg
2001-SC-0816-DG
SANDRA C. BROOKS AND
WILLIAM C . JACOBS, HER ATTORNEY
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1999-CA-1578-MR AND 1999-CA-1655-MR
FAYETTE CIRCUIT COURT NO . 1992-CI-2843
V.
THE LEXINGTON-FAYETTE URBAN
COUNTY HOUSING AUTHORITY ;
AUSTIN J. SIMMS; MARGARET BURCH ;
AND JIM DESPAIN
APPELANTS
ORDER
The petition for rehearing filed by Appellee, the Lexington-Fayette Urban County
Housing Authority, is denied. On the Court's own motion, pages fourteen (14) and
twenty-two (22) of the majority opinion by Justice Johnstone and page six (6) of Justice
Keller's concurring opinion are amended to correct typographical errors . Additionally,
on the Court's own motion, Justice Cooper's dissenting opinion is amended to correct a
cite on page three (3) of that opinion . Said changes do not affect the Court's decision in
this matter.
All concur .
ENTERED : May 20, 2004.
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