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§npreme Court of Benc A L

2015-sc-000384-DG ©AE <M££[U K,;., Qdm, bc

UNIVERSITY OF KENTUCKY, JOSEPH APPELLANTS
MONROE, AND KENNETH CLEVIDENCE

ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2012-CA-000994 AND 2012-CA-001429
FAYETTE CIRCUIT COURT NO. 2007-CI-O4844

BOBBYE CARPENTER, TIUA CHILTON, APPELLEES
AND LAURA MARCO

MEMORANDUM (_)PINION OF THE COURT
REVERSING

Female employees of the University of Kentucky Police Department sued
the University, its police chief, Joseph Monroe, and its former director of public
safety, Kenneth Clevidence, claiming to be victims of gender discrimination and
retaliation. We granted discretionary review to address whether the Court of
Appeals properly reversed the circuit court’s grant of a directed verdict against
one of the employees, Bobbye Carpenter, on her discrimination and retaliation
claims, a summary judgment against another employee, Laura Marco, on her
discrimination claim, and a summary judgment against a third employee, Tiua

Chilton, on her discrimination and retaliation claims. Having determined that

the Court of Appeals erred in its opinion, we reverse the Court of Appeals

opinion and reinstate the judgments of the trial court.

I. PROCEDURAL BACKGROUND.

A total of seven female members of the University of Kentucky’s campus
police department filed a joint complaint in circuit court against the University,
Clevidence, and Monroe in which they alleged gender discrimination,
retaliation, and violation of the Kentucky Whistleblower Act. All plaintiffs
alleged in some form that Clevidence and Monroe engaged in or tolerated a
pattern of discriminatory behavior. ,Some plaintiffs also alleged retaliation after
they made complaints of gender discrimination to the University’s Office of
Institutional Equity and Equal Office.

When discovery was completed, the University, Clevidence, and Monroe
moved for summary judgment on all claims, which the trial court denied. They
later asked the trial court to separate the plaintiffs’ claims for trial, and the
trial court denied that motion. Following the United States Supreme Court’s
opinion in Wal-Mart v. Dukes,1 the trial court ruled that the plaintiffs’ claims
would be tried separately. Dukes Was a United States Supreme Court case in
which the Court held that plaintiffs pleading a pattern of discrimination is not
sufficient for class certification.2 The Supreme Court in Dukes held that class
certification required that the class members have suffered the “same injury,”

not simply all suffering under the same provision of the law.3 Applying this

 

1 Wal-Man v. Dukes, 564 U.s. 338 (2011).
2 Id. at 352.
3 Id.

logic to the facts of the present case, the trial court reversed its position and
ordered separate trials.

Carpenter’s case was the first one to be presented in a jury trial. Before
trial, the trial court set parameters on the scope of trial testimony allowable
from the other plaintiffs. The trial court ruled that their testimony in
Carpenter’s trial must be confined to evidence of discrimination that: (l)
resulted from decisions made by the same supervisors who had allegedly
discriminated against Carpenter; and (2) occurred contemporaneously with
Carpenter’s alleged discrimination.

After Carpenter presented all her evidence at trial, the trial court granted
the defendants’ motion for a directed verdict on all of her claims. Following the
dismissal of Carpenter’s case, the trial court reconsidered the defendants’
summary judgment motions and dismissed the claims of all remaining
plaintiffs.

Carpenter and five of the plaintiffs appealed the trial court’s dispositive
judgments. The Court of Appeals reversed the directed verdict against
Carpenter and the summary judgments against Chilton and Marco.4 The panel
affirmed the dismissals of the remaining plaintiffs and reversed the trial court’s
pretrial ruling separating the cases for trial, remanding for a possible joint trial
of the claims of Carpenter, Chilton, and Marco. We granted the motion for

discretionary review by the University, Monroe, and Clevidence.

 

4 The Court of Appeals found that Marco’s retaliation claim was properly
dismissed on summary judgment.

3

II. ANALYSIS.
A. Standards of Review.

Our analysis requires us to review the propriety of the trial court’s
disposition of claims by two different procedural devices-Carpenter’s claims by
directed verdict and Chilton’s and Marco’s claims by summary judgment.

A trial court deciding a motion for directed verdict must draw all fair and
reasonable inferences from the evidence presented at trial in favor of the party
opposing the motion. And on appeal from the trial court’s grant of a motion for
directed verdict, we “must ascribe to the evidence all reasonable inferences and
deductions which support the claim of the prevailing party.”5 After having the
evidence presented to the trial court, who fairly considered the evidence, “a
reviewing court cannot substitute its judgment for that of the trial judge unless
the trial judge is clearly erroneous.”6 When reviewing summary judgment, we
must ask whether the trial court properly found that there Was no genuine
issue of material fact and properly applied the law.7

B. Legal Elements Required for Plaintiffs’ Claims.

As we review the trial court’s decision to grant the motion for directed
verdict and summary judgment, we first examine the elements necessary to
prove a prima facie case for the asserted claims.

1. Elements Required for Gender Discrimination and Hostile Work
Environment.

The Kentucky Civil Rights Act (KCRA) is similar to the Federal Civil Rights

Act of 1964, and our interpretation of the Kentucky statute generally tracks

 

5 Bierman v. Klapeke, 967 S.W.2d 16, 18 (Ky. 1998).

6 Id. (citing Davis v. Graviss, 672 S.W.2d 928 (Ky.1984)).

7 Harnmons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010).
4

federal case law.8 Under the KCRA, it is an unlawful employment practice to
“fail or refuse to hire, or to discharge any individual, or otherwise discriminate
against an individual with respect to compensation, terms, conditions, or
privileges because of an individual’s sex.”9

In Commonwealth v. Solly, we adopted the McDonnell Douglas Corporation v.
Green test for state civil rights claims for gender discrimination10 Under this
framework, a prima facie case requires proof that: (l) plaintiff was a member of
a protected group; (2) plaintiff was subjected to an adverse employment action;
(3) plaintiff was qualified for the position; and (4) similarly situated persons of
the non-protected group Were treated more favorably.11 If a plaintiff can
maintain a prima facie claim, the burden shifts to the defendant to offer a
“legitimate, nondiscriminatory reason” for the alleged discriminatory actions.12
If the defendant can do so, the burden then shifts again, and the plaintiff must
show that the reasons given for the alleged discriminatory actions were not
“pretext” for discrimination13

To qualify a similarly situated person, the person “must have reported to
the same supervisor as the plaintiff, must have been subject to the same
standards governing performance evaluation and discipline, and must have

engaged in conduct similar to the plaintiff’s, Without such differentiating or

 

8 Ammerman v. Board of Education, ofNicholas County, 30 S.W.3d 793, 797-98
(Ky. 2000).
9 KRS 344.040(1).

10 Commonwealth v. Solly, 253 S.W.3d 537 (Ky. 2008); McDonnell Douglas
Corporation z). Green, 411 U.S. 792 (1973).

11 Solly, 253 S.W.3d at 541.
12 Id.
13 Id.

mitigating circumstances that would distinguish their conduct or the
appropriate discipline for it.”14 Examples of adverse employment action can
include: a demotion, a less distinguished title, a material loss of benefits, or a
significantly diminished material responsibility

In Ammerman v. Board of Education ofNicholas County, we articulated the
elements required to assert a prima facie case for a hostile-work-environment
claim.15 A hostile-work-environment claim exists “when the workplace is
permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.”16 The alleged
“incidents must be more than episodic; they must be sufficiently continuous
and concerted in order to be deemed pervasive.”17

2. Retaliation Claim.
A KCRA claim for unlawful retaliation falls under KRS 344.280(1). To make

a prima facie case for retaliation, a plaintiff must establish (1) she was engaged
in a protected activity; (2) she was disadvantaged by an act of her employer;
and (3) there was a causal connection between the activity engaged in and the

employer’s treatment of her.18 If the plaintiff is able to put forth a prima facie

 

14 Mazzella v. RCA Global Communications, Inc., 642 F.Supp. 1531 (S.D.N.Y.
1986)

15 Ammerman v. Board of Education of Nicholas County, 30 S.W.3d 793 (Ky.
2000}

16 Id. (quoting l/Vzlliams v. General Motors Corporation, 187 F.3d 553, 560 (6th
Cir. 1999).

17 Carrero v. New York City Housing Authon`ty, 890 F.2d 569, 577 (2d Cir. 1989).

18 Banker v. University of Louisville Athletic Association, Inc., 466 S.W.3d 456,
460 (Ky. 2015).

6

case, the defendant may rebut the allegation by providing a legitimate, non-
discriminatory reason for the employer’s actions.19

3. Whistleblower Claim.
The Kentucky legislature has created a statutory shelter for individuals

who choose to speak out about government misbehavior. Similar to a KCRA
retaliation claim, this statute is intended to provide recourse when an employer
takes action to punish an individual for speaking out.20 The legislature
provides this shelter in KRS 61.102, or commonly known as the Kentucky
Whistleblower Act.

To prevail on a claim under the Whistleblower Act, a plaintiff must establish
all of the following four elements: “(l) the employer is an officer of the state; (2)
the employee is employed by the state; (3) the employee made or attempted to
make a good faith report or disclosure of a suspected violation of state or local
law to an appropriate body or authority; and (4) the employer took action or
threatened to take action to discourage the employee from making such a

disclosure or to punish the employee for making such a disclosure.”21

 

19 Id. at 462.

20 Without acknowledging our holding in Cabinet for Families and Children v.
Cummings, 276 S.W.3d 789, 792 (Ky. 2008), the Court of Appeals held that Monroe
and Clevidence could be held personally liable as employers under KRS 61 . 102, which
is contrary to our holding in that case. The disposition of the case before the Court
today does not require us to revisit our holding in Curnmings, accordingly, we will not
do so.

21 Gateway Area Development District, Incorporated v. Cope, 2015 WL 602726
(Ky. App. 2015) (citing Davidson v. Commonwealth, Department of Military Ajjrairs, 152
S.W.3d 247, 255~(Ky. App. 2014)).

7

C. The Trial Court’s Disposition of Carpenter’s, Chilton’s, and Marco’s
Claims_ Was Not Erroneous.

The Court of Appeals panel reversed the trial court’s judgments in favor of
the defendants for all claims asserted by Carpenter, Chilton, and Marco. In
reviewing the record, We cannot say that the trial court erred in its rulings.

1 . Marco.

Marco was employed at UKPD for approximately two years. She testified
that Monroe had asked her out on dates on several occasions soon after her
employment at UKPD began. She declined all of these invitations. While Marco
testified that she was not sexually harassed by Monroe, with regard to the
romantic overtures she stated, “it was just kind of odd how he Was so nice to
me and then so not nice to me.” Marco further asserted that she was
supervised more closely than other officers, denied backup, denied requested
schedule changes, denied a requested course certification, and
disproportionally disciplined. The trial court found Marco failed to present a
sufficient factual basis to support any of these allegations, and the Court of
Appeals reversed this ruling.

We believe the trial court was correct in its analysis. The Court of Appeals
reasoned that when considered as a whole, Marco’s claims state a prima facie
case for gender discrimination And the Court of Appeals also held that Marco
sufficiently had set out a hostile-work-environment claim. Specifically, the
Court of Appeals found that Marco had sufficiently put forth enough evidence
to refute UKPD’s explanations of their actions, finding that UKPD’s stated

reasons were pretextual in nature.

We begin With the appellate panel’s holding that Marco had sufficiently
stated a hostile-work-environment claim, A claim for “hostile work environment
discrimination must show that the alleged behavior [is sufficiently] severe or
pervasive....”22 The alleged conduct must be of such a magnitude that it alters
the terms and conditions of employment.23 In its analysis, the Court of Appeals
panel cites the “overall circumstances” of Marco’s employment in conjunction
with isolated incidents of male officers allegedly discussing strip-clubs and '
viewing pornography on work computers. While these incidents are examples of
unacceptable conduct in the workplace, Marco provided no evidence that this
conduct was pervasive conduct and so as to alter the terms of her employment

We are also unable to find that the trialvcourt erred by failing to recognize a
viable claim for disparate treatment. Marco claims rumors circulated in the
office that she performed sexual acts in her police cruiser. She alleges that
these rumors Were not only embarrassing but resulted in her conduct being
monitored more closely than conduct of other officers. Marco testified that after
complaining about the rumors to co-workers, the frequency with which she
Was monitored diminished and eventually the rumors subsided. Though she
was monitored less, Marco believed that as a consequence of her reporting the
rumors that her fellow officers failed to provide her with backup. But she never
reported a single instance of a failure by fellow officers to provide backup, and
she offered no evidence that any alleged failure to provide backup was

connected to her gender.

 

22 Lumpkins ex rel. Lumpkins v. City of Louisuille, 157 S.W3d 601, 605 (Ky.
QOOSL

23 Ammerrnan, 30 S.W.3d at 798.

Marco further claimed she was denied a shift-change request after she had
been on the job for about a year. She Was working the third shift when she
requested authorization to work a home football game in order to draw
enhanced pay for the overtime hours. It was UKPD custom that officers who
work the third shift generally do not work football games. While the denial of
the request to work the football game may have frustrated Marco, we cannot
find that the trial court erred when it failed to recognize this as grounds for a
gender-discrimination claim. It is important to note the fact that around the
same time Marco made her request, another female officer, Andrea Eilertson,
was approved for a factually similar shift change, damaging Marco’s claim she
was denied the shift change because of her gender.

2. Chilton,

The trial court ruled that Chilton failed to assert a prima facie case for
gender discrimination, and the Court of Appeals panel reversed that ruling.
After review of the record we find that the trial court did not err in granting
summary judgment in favor of the defendants on this claim.

The Court of Appeals panel focused on Chilton’s schedule change. While on
pregnancy leave, she was switched from first to second shift. Chilton was
thereafter replaced on first shift by a male officer with less seniority. UKPD
recognized that this type of shift change was not standard. Typically the officer
with more seniority is given preference when scheduling shifts. UKPD asserts
by way of explanation that Chilton’s shift changes was made in conjunction
with department-wide shift changes made at the time.

UKPD emphasized that Chilton was needed on second shift because of her

leadership experience and the additional oversight her superior experience
10

provided to less experienced second-shift officers. Lastly, the male officer Who
replaced Chilton on first shift was a motorcycle officer, a particular skill that
was needed at the time on the first shift. We are not only convinced that UKPD
sufficiently rebutted Chilton’s shift change as not being pretextual but the
employee-skill and training differential between Chilton and the male officer
who replaced her on first shift refutes the argument that the two officers were
similarly situated employees.

The Court of Appeals panel held that Chilton’s shift change alone raises a
prima facie case for gender discrimination, The panel reasoned that because
Chilton’s shift change was a departure from the customary seniority-preference
protocol, it created a genuine issue of material fact supporting an inference of
pretext. We do not disagree that a departure from protocol can be evidence of
pretext, but it is a rebuttable-fact UKPD put forth sufficient evidence in
rebuttal to satisfy us that the trial court did not err in granting summary
judgment on Chilton’s claim.

The Court of Appeals also noted Chilton’s alleged receipt of unsolicited mail
that included a Playboy magazine. While not clear from the record and not
discussed by the trial court, the Court of Appeals panel cited what they
interpreted to be sex-related tourism mail. This kind of behavior can be a factor
in proving a hostile-work-environment claim but is not in itself sufficient Even
in conjunction with Chilton’s other alleged grievances, we believe the trial
court, having reviewed the evidence, properly granted summary judgment in

favor of the defendants

ln its opinion, the Court of Appeals panel concludes that the trial court

erred in granting summary judgment on Chilton’s retaliation claims. In its
1 1

analysis, the panel simply states, “...Chilton presented evidence that her
responsibilities were downgraded and her command authority was undermined
after that meeting [referencing her private meeting with President Todd
concerning the potential hiring of Monroe as police chief].” The Court of
Appeals follows that sentence by acknowledging that the evidence presented for
the retaliation claim was weak.

After reviewing the record and considering the appellate panel’s analysis,
We are unconvinced that the trial court erred on this point. There is no
evidence that any of the defendants knew about the meeting between Chilton
and President Todd. President Todd testified at trial that he never discussed
the meeting with anyone and that neither Monroe nor Clevidence Would have
known about Chilton’s concerns. This fact of nondisclosure is fatal to the claim
of retaliation. Without linking any alleged negative treatment to the revelations
allegedly made by Chilton to President Todd, Chilton’s retaliation claim must
fail. Accordingly, we hold that the trial court did not err in granting summary
judgment.

3. Carpenter,

The trial court dismissed Carpenter’s claims by directed verdict on motion
of the defendants after she had presented her case to the jury at trial. The
appellate panel reversed the directed verdict, an action that requires a finding
by the appellate court that the trial court’s directed-verdict ruling was clearly

erroneous.24

 

24 Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998).
12

The appellate panel’s premise for reversing the directed verdict was simply
that the trial court improperly denied joinder and separated the plaintiffs’ cases
for trial. In its opinion, the Court of Appeals stated that “A determination on a
question of joinder is within the discretion of the trial court and will not be
reversed on appeal absent an abuse of that discretion.” While the trial court
may have misread the holding in Dukes, we are unwilling to say that the trial
court abused its discretion by ordering separate trials. Weighing the evidence
and relevant case law, the trial court cited that the plaintiffs in the case had
different positions within the department, had worked at different periods of
time, had different commanding officers, possessed varying levels of experience,
and experienced a variety of education levels. Further, the trial court was not
convinced that the claims presented by the various plaintiffs were sufficient to
show a “pattern or practice” within the department that discriminated against
women, which would bolster the argument for the joinder of the claims. We
cannot say the trial court abused its discretion in its analysis.

As the appellate panel recognized, “If the trial court properly granted
summary judgment on their claims, then the court’s denial of the joinder
motion is moot. Likewise, We Would then consider the directed verdict on
Carpenter’s claims without reference to the dismissed claims.” Having reached
that conclusion, the trial court did not err by granting summary judgment on
Marco’s and Chilton’s claims. We must review Carpenter’s claims individually
and not as a collective with the others. And we must do so with a light touch,

remembering that the trial court heard the evidence and observed the

13

witnesses at trial, and we are to not disturb the directed verdict unless it is
clearly erroneous.25

Carpenter’s main argument for error in granting the defendants’ directed
verdict is that the trial court abused its discretion in several evidentiary
rulings. She argues that the trial court’s order restricting the testimony of other
female employees was too narrow. But, after review of the trial court order and
the entire record, we cannot agree.

During a pre-trial conference, the trial court ruled that the other female
employees could testify at trial about their own alleged mistreatment at UKPD
to the extent that the subject of the testimony covered “disparate treatment
which resulted from decisions by the same supervisors or decision makers and
during the same time frame that Bobbye Carpenter claims she was subjected to
disparate treatment.” The trial court granted the defendants’ motion to restrict
the testimony from the other female employees “regarding decisions which were
made by different decision makers during a different timeframe than the
disparate treatment evidence offered by Bobbye Carpenter.”

We are satisfied from our review of the record that the trial court did not
abuse its discretion by restricting the other female employees’ testimony. The
trial court confined the range of testimony by other employees to their
individual perceptions of disparate treatment so long as the testimony involved

the same decision makers during the relevant period of time. Otherwise, the

 

25 Id.
14

testimony would have been irrelevant to Carpenter’s claim, being more
prejudicial than probative, and a violation of KRE 404(b).26

Carpenter’s individual claims vary but do not appear to us to be sufficient
for a disparate-treatment claim. While Carpenter never applied to be the UKPD
chief, it is apparent that she was frustrated that she was not put in charge of
the department on occasions when the chief was absent Instead, on those
occasions, commanders Paul Grant and Kevin Franklin were put in charge. But
when she asked the chief about this perceived slight, he explained that at least
one of the two commanders had more experience in the operation of a police
department The fact that Carpenter was not asked to take charge in the
chief's absence is not alleged to have actually diminished any of her regular
duties. And she failed to produce evidence to suggest that she should rightfully
have been left to run the department when the chief was away.

Carpenter’s duties did vary from her customary role from 2003 to 2004.
During this period, Carpenter performed the duties of a budget officer after the
former budget officer resigned that position. While in this temporary position,
Carpenter’s duties were so extensive that she was kept from performing the
customary duties of a police officer. But after serving in this role on an interim
basis, she returned to her former position, and she concedes that her “material
responsibilities were restored.”

Lastly, while working at UKPD, Carpenter was granted promotions over her

male colleagues, she Was never denied a promotion while Clevidence was the

 

26 Kentucky Rules of Evidence 404(b).
l 5

Director of Public Safety, and when she returned to work from maternity leave
she assumed her regular duties as they were before taking leave.

Carpenter also asserts a retaliation claim under the Whistleblower Act and
KRS 344.280. When granting the directed verdict, the trial court cited evidence
that neither Monroe nor Clevidence was Carpenter’s employer under the
statutes. We need not address the wisdom of the trial court’s reasoning, but we
are satisfied nonetheless that Carpenter did not prove a prima facie retaliation
claim. Review of the record does not support reversing the trial court as clearly
erroneous. Furthermore, while slightly unclear, it appears that the appeals
panel mistakenly attributed Carpenter’s meeting with President Todd as
supporting proof of her retaliation claim.

The record does not support the appellate panel’s holding that the trial

court’s grant of a directed verdict was clear error. So we reverse.

III. CONCLUSION

For the foregoing reasons, we reverse the Court of Appeals and reinstate
the dispositions of made by the trial court

All sitting. All concur.

COUNSEL FOR APPELLANTS:

Barbara Ann Kriz
Kriz, Jenkins, Prewitt & Jones, P.S.C.

William Thro
University of Kentucky

COUNSEL FOR APPELLEES:

Robert Lee Abell

16

