Opinion
NO. 2018-CA-001850-MR
02-14-2020
SHANNAN WHITE APPELLANT v. COMMONWEALTH OF KENTUCKY d/b/a KENTUCKY STATE POLICE APPELLEE
BRIEFS FOR APPELLANT: A. Nicholas Naiser Louisville, Kentucky James M. Bolus, Jr. Louisville, Kentucky BRIEF FOR APPELLEE: Aaron Ann Cole Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 14-CI-01001 OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, KRAMER, AND TAYLOR, JUDGES. DIXON, JUDGE: Shannan White appeals from the opinion and order granting summary judgment in favor of the Commonwealth of Kentucky d/b/a Kentucky State Police ("KSP") entered by the Franklin Circuit Court. Following review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
White graduated from KSP Academy on April 15, 2012, and became the first female trooper assigned to Post 4 since KSP was established in 1948. White alleges that she suffered various "adverse employment actions"—which will be discussed in greater detail herein—because of her gender, ultimately resulting in her resignation on August 7, 2014. The day she resigned, White filed the instant lawsuit, alleging that KSP discriminated against her based upon her gender in violation of the Kentucky Civil Rights Act ("KCRA"); retaliated against her in violation of the KCRA, KRS 344.280; and retaliated against her in violation of the Kentucky Workers' Compensation Act, KRS 342.197. Significant discovery was conducted prior to KSP moving the trial court for summary judgment. The trial court granted summary judgment in favor of KSP, and this appeal followed.
Kentucky Revised Statutes ("KRS") 344.010, et seq.
STANDARD OF REVIEW
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. It is well-established that a party responding to a properly supported summary judgment motion cannot merely rest on the allegations in his pleadings. Continental Casualty Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky. 1955). "[T]he proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Service Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Kentucky Rules of Civil Procedure.
An appellate court's role in reviewing an award of summary judgment is to determine whether the trial court erred in finding no genuine issue of material fact exists, and the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de novo because factual findings are not at issue. Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12 S.W.3d 698. 700 (Ky. App. 2000)).
Here, because the trial court granted summary judgment to KSP, we review the facts in a light most favorable to White and resolve all doubts in her favor. Applying the Steelvest standard, we agree with the trial court that there was no genuine issue of material fact and that White did not, and indeed could not under the circumstances herein, carry her burden. Therefore, we conclude that summary judgment was properly granted to KSP.
LEGAL ANALYSIS
White alleges that KSP's behavior violated the KCRA. KRS 344.040(1)(a) prohibits discrimination "against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual's . . . sex[.]" Kentucky courts have "consistently interpreted the civil rights provisions of KRS Chapter 344 consistent with the applicable federal anti-discrimination laws." Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky. 2005). The Supreme Court of Kentucky held that KRS 344.040 "should be interpreted consonant with federal interpretation" in Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 821 (Ky. 1992).
The Supreme Court of Kentucky has identified two avenues for a plaintiff to establish an employment discrimination case. Williams, 184 S.W.3d at 495. The first path is to produce direct evidence of discriminatory animus. The second path is to satisfy the burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). White unsuccessfully attempts to utilize both paths to present her claims.
"Direct evidence of an unlawful employment practice is evidence that directly reflects the alleged animus and that bears squarely on the contested employment decision." Hallahan v. The Courier-Journal, 138 S.W.3d 699, 710 (Ky. App. 2004). "However, direct evidence does not include stray remarks in the workplace, statements by decision-makers unrelated to the decisional process itself, or statements by nondecision-makers." Id.
White alleges two statements made by two KSP officers constitute such direct evidence. We will address each, in turn.
The first statement, by Lieutenant Jeremy Thompson, was that KSP "look[s] at [White] different" because she is a woman. We agree with the trial court that this isolated statement is insufficient without more to evince any gender discrimination practices in the workplace.
The second statement, by Captain David Millay, occurred during a discovery deposition in response to a series of leading questions. The pertinent part of the exchange follows:
Q: If [White] was called a walking pair of [t**s], and given a cartoon that we've marked as Exhibit 3, and a KSP employee nuzzled his head against her breast, is that—do you agree with me that somebody should've stopped those things from happening?This exchange represents Capt. Millay's opinion regarding what constitutes gender discrimination. White alleges that Trooper Brandon Brooks called her a walking pair of t**s while they were cadets in training together at the KSP Academy, that Trooper Charlie Miller sent her a cartoon depicting an "offensive" joke of a sexual nature, and that former civilian KSP employee Jay Jacobs hugged her from a seated position and his head "nuzzled" her breast. While these actions may indeed be offensive, pursuant to Hallahan, supra, they merely constitute "stray remarks" and actions by non-decisionmakers. Therefore, as the trial court correctly concluded, they are insufficient to constitute direct evidence of discriminatory animus.
A: I—I absolutely agree with you. I think those things are counter to what KSP represents.
Q: Do you agree if—if those things were done, that she was being discriminated against because she was a woman?
A: I agree that those things should never happen to anybody and if—yes, if those things were happening to her my opinion is that would be discriminatory towards her.
Under the McDonnell Douglas framework, a plaintiff can establish a prima facie case of gender discrimination by proving that he or she: "(1) was a member of a protected class, (2) was discharged, (3) was qualified for the position from which they were discharged, and (4) was replaced by a person outside the protected class." Williams, 184 S.W.3d at 496. In the case at hand, there is no dispute that the first and fourth elements were met; however, KSP disputes the second and third elements. Failure to prove any one of these elements is fatal to establishing a prima facie case of gender discrimination; therefore, as White is unable to prove the second element, we need only address it.
White alleges that eleven "adverse employment actions" caused her constructive discharge. White summarizes these as:
1. Written up for missing court when male coworkers who also missed court under identical circumstances were not written up;(Footnote omitted.) She then follows this list with a second list claiming that there is no evidence that White's male coworkers were subjected to the first nine items she claimed were adverse employment actions. It is undisputed that White and her male coworkers actively participated in items ten and eleven on the list above.
2. Written up for using a vehicle that she was allowed to use when male coworkers used vehicles under similar circumstances and were not written up;
3. Refused a transfer to a night shift position in favor of a male coworker with equal seniority;
4. Turned down for more desirable and prestigious work (the drug interdiction team and the sheriff deputy assault response), which was given to male coworkers;
5. Given less desirable work (watching the suspect in the hospital overnight after a long shift) instead of male coworkers;
6. Told not to interact with certain supervisors because their wives would be upset, thereby making it more difficult for her to do her job;
7. Unnecessarily berated, allegedly for a doctor's note over which she had no control, at a meeting she requested to discuss her complaints of gender discrimination;
8. Hugged by a man that put his head into her breasts;
9. Called "nothing but a pair of t**s";
10. Sent sexually inappropriate images, "all the time" according to a coworker; and
11. Subjected to sexually explicit comments commonly, according to a supervisor.
We agree with the trial court's well-reasoned analysis on this issue. In its order the court wrote:
In the context of a discrimination claim, an "adverse employment action" is defined as a "materially adverse change in the terms and conditions of employment." Brooks v. Lexington-Fayette Urban Cnty. Hous. Aut., 132 S.W.3d 790, 80[2] (Ky. 2004) (citation omitted). A materially adverse change in the terms of conditions of employment "must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (quoting Hollins v. Atlantic Co, Inc., 188 F.3d 652, 662 (6th Cir. 1999)). Typically, adverse actions include "a demotion evidenced by [a] decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities," though it can vary depending on the unique circumstances of the situation. Id. (quoting Hollins, 188 F.3d at 662). Ultimately, the question of whether certain behavior rises to the level of "adverse employment action" is a fact-specific inquiry. See Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (citation omitted).
In this case, [White] asserts that she suffered from "numerous" adverse employment actions, namely, "unwarranted disciplinary actions, the failure to offer her a transfer, and the failure to allow her to conduct more prestigious work on the drug interdiction team." [White] also argues that her resignation constitutes an adverse employment action. In that case, the adverse employment action is actually the culmination of the several incidents . . . , which [White] claims created a hostile and offensive work environment from which she felt forced to resign. In other words, [White] claims that the hostile work environment resulted in her constructive termination. Thus, to determine if her resignation satisfies the "adverse employment action" element, the Court must consider whether [KSP] created or
contributed to a hostile work environment "so intolerable that a reasonable person would feel compelled to resign." Turner v. Pendennis Club, 19 S.W.3d 117, 121 (Ky. App. 2000) (citations omitted).
Under the unique facts of this case, the Court cannot find that the actions described by [White]—when viewed as individual adverse actions or as collective contributions to a hostile work environment—materially and adversely changed the terms and conditions of her employment with KSP. On this point, the Court finds Faragher v. City of Boca Raton, 524 U.S. 775 (1998) persuasive. In that case, the Supreme Court of the United States considered whether an employer could be vicariously liable for a supervisor's actionable discrimination under Title VII of the federal Civil Rights Act. Though the Court's holding is not directly applicable to this case, its decision does provide an in-depth discussion of what constitutes "actionable discrimination" under Title VII. As noted above, the KCRA mirrors the federal Civil Rights Act, including Title VII's prohibition against sex-based employment discrimination. Thus, Faragher's discussion of actionable discrimination under Title VII is applicable to the present analysis involving discrimination under KCRA.
In Faragher, the Court explained "that in order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." [524] U.S. at 787 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993)). In completing this analysis, courts must "'look[] at all the circumstances,' including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. at 787-88 (quoting
Harris, 510 U.S. at 23). It is important to note, however, that "Title VII does not prohibit 'genuine but innocuous differences in the way[s] men and women routinely interact with members of the same sex and of the opposite sex.'" Id. at 788 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). Thus, '"simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" Id. (internal citation omitted). This standard works to "filter out complaints attacking 'the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.'" Id. (quoting B. LINDENMANN & D. KADUE, SEXUAL HARRASSMENT IN EMPLOYMENT LAW 175 (1992)).
In the present case, [White] was employed with KSP for over two years. In her pleading and briefs, she states that her coworkers made offensive comments and jokes and shared inappropriate images, citing two specific examples. She also cites one incident of an inappropriate hug (from a civilian support staff co-worker, not a supervisor or commanding officer); two instances in which [White] felt she was unfairly disciplined (for missing court and for failing to timely return a borrowed KSP vehicle); one incident involving an assignment that [White] felt was unsuitable (watching a suspect in the hospital); and three incidents in which [White] felt she was overlooked for prestigious or desirable assignments (night shift, the Nelson County assault response, and the drug interdiction team). Accepting [White's] statements as true, the Court finds that [White] did, in fact, perceive this behavior as offensive.
However, the behavior must also be objectively offensive. See Faragher, [524] U.S. at 787 (citation omitted). On this point, the Court notes that the . . . incidents were isolated and infrequent, occurring over the
course of over two years of employment. Of those incidents, only one (the seated hug) involved physical touching. Instead, most of the inappropriate actions consist of "mere offensive utterances" made by coworkers, not supervisors or decision-makers. There is no evidence that these comments interfered in any meaningful way with [White's] job performance. In fact, [White] admitted to laughing at coworkers' remarks that she believed to be genuinely funny, and having "a foul mouth." She also stated that "there's a specific type of humor with law enforcement and emergency services that could be a little off color for some professions." For example, [White] sent a photo of her dog's testicles to the same male coworker that sent her the cartoon. She later admitted that this was inappropriate; however, it is indicative of the "ordinary tribulations" of the KSP workplace, including occasional rough language and gender-related jokes. See Faragher, [524] U.S. at 788. Furthermore, even accepting that [White] found her coworkers' behavior offensive, her active participation in this atmosphere of abrasive language and sporadic teasing calls into question the severity of the offensive actions. Simply put, a reasonable person would not find that these isolated incidents rise to the level of actionable discrimination.
The Court also finds that the disciplinary write-ups and the failure to assign [White] to certain desired assignments were not adverse employment actions that created any meaningful interference with [White's] employment. First, the Court notes that the disciplinary write-up for missing court occurred after KSP received complaints from a prosecutor regarding [White's] habitual tardiness or absence from court. After informally admonishing [White] to improve her performance, apparently to no avail, [White's] supervisor issued the formal reprimand. In addition, the write-up for failing to return the KSP vehicle resulted from a failure to follower [sic] her supervisor's instructions, not from the mere act of borrowing the vehicle. There is no
indication that these disciplinary actions in any way prevented [White] from performing her regular duties, nor did they result in demotion or decreased wages or benefits. Furthermore, though she was not always given the assignments she desired—no doubt a common issue for all KSP Troopers—she was provided with prestigious assignments, such as collision reconstruction training. Though [White] did not receive every assignment she wanted, and though she was sometimes required to complete assignments that she did not want to do, no reasonable person would find that such behavior amounts to actionable discrimination. Instead these are simply the expected and accepted tribulations of any workplace, especially one that is based on the command structure of a law enforcement agency.(Internal citations to the record omitted.)
Every State Trooper is subject to a wide range of assignments, especially for newer, less-experienced officers. [White's] legal theory would make every unattractive assignment a potential lawsuit, in a work environment in which many, if not most, assignments for entry-level officers are "grunt work." No reasonable person could find that the litany of complaints identified by [White] is anything more than normal workplace management, in which some assignments are positive and others are negative. The record is devoid of evidence that her negative experiences were motivated by any discriminatory intent, or that they differed in kind or nature from that of male officers.
Given the infrequent and trivial nature of the incidents alleged by [White], and the lack of interference with [White's] performance, the Court cannot find that [White's] allegations constitute "actionable discrimination" under the circumstances of this case. . . . However, the Court cannot find that any reasonable person would believe these comments created a materially adverse change in the terms and conditions of employment . . . .
Because White has not proven an adverse employment action was taken against her, her claims under the KCRA fail as a matter of law. On careful review, it is clear that there are no genuine issues of material fact, and the trial court properly granted summary judgment.
White also alleges that she was subjected to a hostile work environment in violation of the KCRA. It is well-established:
A plaintiff may establish a violation of Title VII by proving that the discrimination based on sex created a hostile or abusive work environment. To establish a prima facie case of a hostile work environment based on sex, a plaintiff must show that:
(1) she is a member of a protected class,
(2) she was subjected to unwelcome sexual harassment,
(3) the harassment was based on her sex,
(4) the harassment created a hostile work environment, and that
(5) the employer is vicariously liable.
Clark [v. United Parcel Service, Inc.], 400 F.3d [341,] 347 [(6th Cir. 2005).] (internal citations and quotations omitted).
However, the act is not intended to make all offensive conduct actionable.
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.
Gray v. Kenton County, 467 S.W.3d 801, 805 (Ky. App. 2014).
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). Whether the harassment is severe and pervasive is determined by a totality of the circumstances test—circumstances including frequency and severity of the conduct, whether the conduct is physically threatening or humiliating, and whether it unreasonably interferes with the employee's work performance. Id. at 23, 114 S.Ct. at 371.
Herein, the trial court did not err by finding that, as a matter of law, White failed to present evidence of conduct severe and pervasive enough to create a hostile work environment. The trial court correctly noted that the alleged conduct was inappropriate and subjectively offensive to White. Nonetheless, as noted above, the alleged conduct was relatively mild, infrequent, and non-threatening. Moreover, also as noted by the trial court, White admitted to participating in verbal and text conversations that were of the type of which she now complains. The trial court properly considered the totality of the circumstances in analyzing the workplace conditions alleged by White. However, even when viewed in a light most favorable to White, the alleged conduct was not severe enough to create an objectively hostile work environment. Therefore, the trial court did not err in granting summary judgment in favor of KSP on this issue.
We now turn to the dismissal of White's retaliation claims. There are four elements of a retaliation claim: "a plaintiff must produce evidence that (1) she engaged in protected activity (2) that was known to the defendant (3) who thereafter took an employment action adverse to the plaintiff, (4) which was causally connected to the plaintiffs [sic] protected activity." Asbury Univ. v. Powell, 486 S.W.3d 246, 258 (Ky. 2016). Taking the facts as she has presented them, White is unable to prove her retaliation claims.
Whether White "engaged in protected activity" is the first element of a prima facie action of impermissible retaliation. Brooks v. Lexington-Fayette Urban County Housing Auth., 132 S.W.3d 790, 803 (Ky. 2004). Without properly alleging this element, from which the others flow, White has no claim under the KCRA. "Protected activity" is defined by KRS 344.280:
It shall be an unlawful practice for a person, or for two (2) or more persons to conspire:
(1) To retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this chapter[.]
KRS 344.280(1) consists of two clauses, commonly referred to as the "opposition clause" and "participation clause." The first clause concerns opposition to perceived violations of the KCRA, which is inapplicable to the case at hand. The second deals with active participation in a charge, complaint, or investigation of any proceeding under the KCRA. White's allegations attempt to state a cause of action under the participation clause for her informal verbal complaints to her supervisors. However, it is undisputed that no further or formal investigation, proceeding, or hearing under the KCRA was ever made or even contemplated.
The participation clause "protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the [Equal Employment Opportunity Commission (EEOC)]; it does not include participating in an employer's internal, in-house investigation, conducted apart from a formal charge with the EEOC." E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (footnote and citation omitted). "[I]nstigation of proceedings leading to the filing of a complaint or a charge, including a visit to a government agency to inquire about filing a charge, is a prerequisite to protection under the participation clause." Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313 (6th Cir. 1989) (internal quotation marks and citation omitted). In Kentucky, the KCHR must be involved—even if only through an inquiry about filing a charge—to invoke statutory protection under the participation clause.
The Kentucky Commission on Human Rights ("KCHR") is Kentucky's counterpart to the federal EEOC. The KCHR is established and enabled by KRS 344.010 et seq., specifically KRS 344.015 and KRS 344.150.
Any "charge" or "complaint" in which White alleges she participated was, at most, internal in nature as the actions were confined within KSP. No action was made or contemplated involving the KCHR. This failure is fatal to White's claims under the KCRA.
Furthermore, no "adverse employment action" was taken against White even under the lessened standard required for retaliation. "Plaintiff need only show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Laster v. City of Kalamazoo, 746 F.3d 714, 719 (6th Cir. 2014) (internal quotation marks and citation omitted). White failed to do so. Therefore, White has failed to prove the third and, subsequently, fourth elements necessary to sustain her retaliation claim. As such, the trial court did not err in granting summary judgment on her retaliation claims.
Similarly, and by White's own concession to the trial court, White's other retaliation claims fail because White did not suffer any adverse employment action after engaging in protected activity under the Workers' Compensation Act. This issue was not raised or addressed by White in her appellate brief. White's failure to present an argument on this issue on appeal constitutes abandonment and/or waiver of this argument.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Franklin Circuit Court is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: A. Nicholas Naiser
Louisville, Kentucky James M. Bolus, Jr.
Louisville, Kentucky BRIEF FOR APPELLEE: Aaron Ann Cole
Frankfort, Kentucky