Opinion
NO. 2014-CA-000566-MR
02-12-2016
STEPHON QUILTON CARTER APPELLANT v. UNIVERSITY OF KENTUCKY APPELLEE
BRIEFS AND ORAL ARGUMENT FOR APPELLANT: Aubrey Williams Louisville, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE: Barbara A. Kriz Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 07-CI-03627 OPINION
AFFIRMING BEFORE: MAZE, STUMBO AND TAYLOR, JUDGES. STUMBO, JUDGE: Stephon Carter appeals from a jury verdict in favor of the University of Kentucky (hereinafter UK). Carter argues that he should have been granted directed verdicts on his claims and that the trial court erred in prohibiting his expert from testifying. We find no error and affirm.
This case has previously been before this Court; therefore, we will utilize that recitation of facts.
Carter, an African-American, began his employment at the University of Kentucky as a STORES worker in 1980. STORES' primary function is to purchase, stock, and deliver products that are used by the University on a daily basis. Carter worked as a STORES' employee and then a Senior STORES worker until 1987 when he was promoted to the job of supervisor. In 1996, Carter became the STORES Warehouse Manager. In 2000, Carter was again promoted to STORES Central Assistant Manager. In December of 2006, Carter was terminated. This litigation arises out of that termination.
In May of 2006, Mark Renfro, the Director of STORES and Carter's supervisor, was temporarily reassigned to a special project. In his absence, the University filled Renfro's position with an interim director, Donna Back, a Caucasian female. The University did not post the opening because it was temporary and Renfro was expected to retake his position at the end of the special project. Back's appointment was a shock to Carter because he had been told by Renfro that he was being groomed to be the next Director of STORES. Also, when Back began her new assignment at STORES, Carter was enlisted to train her because her prior experience was mainly limited to computer technology.
In August of 2006, the University received an anonymous call reporting theft in STORES. The university conducted an investigation and discovered Renfro had taken items from STORES for his personal use. In September of 2006, Renfro met with members of human resources to discuss the theft. He was terminated during this meeting. Also during the meeting, he stepped out to call Carter. Supposedly during this conversation, he told Carter he had been fired. Evidence does show that Renfro told Carter to throw away his calendar because a purchase order in it needed to "go away." Renfro also told Carter to alter another purchase order on the computer system. Carter did alter the purchase order, but decided not to save the changes.
Sarah Nikirk, Interim Director of Auxiliary Services, became aware of the conversation between Carter and Renfro. Accompanied by some University police officers, she went to STORES to question Carter. Carter was later taken to another building for questioning. Carter was asked about Renfro's theft. Carter responded he took no part. Carter was also questioned about the phone call. Carter explained about the calendar and the purchase order on the computer system. Carter was then suspended on September 26, 2006, pending an investigation. Normally, according to University regulations, suspension would only last three days, but because this was a lengthy investigation, his suspension lasted until December 6, 2006, at which time he was terminated from his employment.
During his suspension, Carter made various attempts to file a grievance with the University concerning his treatment. There is a three-stage protocol for doing so. Carter successfully filed a Stage 1 grievance, but it was dismissed. The next step is to appeal the grievance to Stage 2. If the Stage 2 grievance is also dismissed, there is a final appeal to Stage 3. Carter sent a certified letter to the University to begin the Stage 2 process. The letter was received by the University post office, but never retrieved from there. It was eventually returned to the federal post office and ended up in the dead letter office.
Also during this period, the University Division of Police determined there was probable cause to charge Carter with tampering with evidence. A Fayette County grand jury indicted Carter and he was arrested. The criminal charge was subsequently dismissed by the Commonwealth Attorney.
Carter eventually initiated this action against the Appellees. There are seven counts in all. Count 1 alleged discrimination arising from his failure to be promoted to the position of Interim Director of STORES. Count 2 is irrelevant because Carter stipulated it should be dismissed. Count 3 alleged breach of contract and the covenant of good faith and fair dealing arising from the University's failure to adhere to its personnel policies and procedures. Count 4 alleged false imprisonment when Nikirk and the University police questioned Carter on his involvement in the theft. Count 5 alleged
malicious prosecution arising from the University's decision to press charges against Carter and have him arrested. Count 6 alleged defamation arising from the University allegedly giving the theft story to the news media and painting Carter in a bad light. Count 7 alleged discrimination by disparate treatment arising from Carter being punished more harshly than similarly situated white employees.Carter v. Univ. of Kentucky, No. 2010-CA-001621-MR, 2011 WL 5600614, at 1-2 (Ky. App. 2011).
After the completion of discovery, the Appellees moved for summary judgment. The trial court granted the motion and dismissed the action in its entirety.
After reviewing Carter's appeal, the previous panel of this Court affirmed in part, reversed in part, and remanded. The Court found that summary judgment was inappropriate in regards to Counts 3 and 7. The Court remanded the case to the trial court.
Upon remand to the trial court, Carter indicated that he intended to call Dr. Robert Reber, a professor at Western Kentucky University, as an expert witness. Carter indicated that Dr. Reber would testify that UK's treatment of Carter was discriminatory and against UK policy. Dr. Reber would also have testified about the employment personnel practice known as the "Hot Stove Rule". This rule holds that personnel rules set forth by human resources must be applied consistently and fairly. After Dr. Reber was deposed, UK moved to exclude him from testifying at trial. UK argued that Dr. Reber held no opinions as to whether or not UK violated its personnel policies or discriminated against Carter. UK argued Dr. Reber's testimony would not assist the trier of fact. After a hearing on the issue, the trial court sustained UK's motion.
A jury trial began on March 5, 2014, concerning Carter's remaining two claims. Multiple witnesses testified over several days. At the close of evidence, both parties moved for directed verdicts on the two claims. The trial court ruled that enough evidence had been presented by both parties to submit the case to the jury. On March 12, 2014, the jury returned a verdict in favor of UK. This appeal followed.
Carter's first argument on appeal is that the trial court erred by failing to grant a directed verdict in his favor on his disparate treatment claim because the evidence proved he was treated differently than two white employees, Clay Sturgeon and Carol Hilton, who also committed acts of misconduct. Carter was terminated from employment while Sturgeon was only suspended for five weeks and Hilton was not disciplined.
In general, a motion for directed verdict admits the truth of all evidence which is favorable to the party against whom the motion is made. When reviewing such a motion, the court may not consider the credibility of evidence or the weight it should be given; this is a function reserved to the trier of fact. The court must draw all inferences to be drawn from the evidence in favor of the party against whom the motion is made. The trial court must then determine whether the evidence favorable to the party against whom the motion is made is of such substance that a verdict rendered thereon would be palpably or flagrantly against the evidence, so as to indicate that it was reached as a result of passion or prejudice. If it concludes such would be the case, a
directed verdict should be given, otherwise the motion should be denied.Simpson County Steeplechase Ass'n, Inc. v. Roberts, 898 S.W.2d 523, 527 (Ky. App. 1995)(citations omitted).
To prove a prima facie claim of disparate treatment "the plaintiff must produce evidence which at a minimum establishes (1) that he was a member of a protected class and (2) that for the same or similar conduct he was treated differently than similarly-situated non-minority employees." Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)(citations omitted). "Upon establishing a prima facie case of discrimination, the burden shifts to the defendant-employer to articulate a 'legitimate nondiscriminatory' reason for its action." Brooks v. Lexington-Fayette Urban Cnty. Hous. Auth., 132 S.W.3d 790, 797 (Ky. 2004)(citation omitted).
In viewing the evidence presented on behalf of UK as true, we believe that the trial court correctly denied Carter's motion for directed verdict and submitted the issue to the jury. Hilton was alleged to have falsified timesheets and deleted purchase order records. Sturgeon was alleged to have stolen office equipment and changed one purchase order. Mary Ferlan, Executive Director of Human Resources, testified that she was tasked with investigating the allegations against Hilton and Sturgeon. At trial, she testified that although these were serious allegations, the investigation revealed no evidence that they committed offenses which would have required termination.
Ferlan testified that Sturgeon did not steal office equipment, but was allowed to have these items at home in order to work from home. She stated that Sturgeon did not complete the proper sign out paperwork when he took the equipment home, but upon being informed of this, he completed the paperwork. He also returned all the equipment. As to the altered purchase order, Ferlan testified that he was ordered to change it by Renfro, his supervisor. Ferlan also testified that after Sturgeon changed the record, he changed it back because he believed Renfro was wrong. Ferlan did not believe Sturgeon's actions were terminable offenses.
As for Hilton, Ferlan testified that there was no evidence that she falsified her timesheets. She testified that during the period in time when Hilton was alleged to have falsified the timesheets, Hilton was actually working a flexible schedule in order to care for a sick family member. Renfro, Hilton's supervisor, approved of this schedule. Ferlan testified that there was no evidence that Hilton did not work the hours she claimed she did on her timesheet. As to the allegation of Hilton changing purchase order records, Ferlan testified that Hilton admitted to deleting a few purchase order records, but it was at the behest of Renfro and only because the purchase orders had been mistakenly entered twice. Ferlan testified that there was no evidence contrary to Hilton's admission; therefore, she did not believe Hilton committed a terminable offense.
On the other hand, Carter admitted to removing the calendar from Renfro's desk and changing a purchase order on the computer. Carter claimed he did these things at the request of his supervisor, Renfro, but evidence presented at trial suggested that Renfro told Carter he had been fired for stealing and wanted Carter's help in covering his tracks. Sufficient evidence was presented at trial that the alleged misconduct committed by Hilton and Sturgeon was not misconduct at all or, at most, a minor violation of UK policy. The trial court properly denied Carter's motion for directed verdict because UK presented evidence that Carter, Hilton, and Sturgeon were not similarly situated and that UK had a legitimate reason for treating Carter differently than Hilton and Sturgeon.
Carter's second argument on appeal is that the trial court erred in not granting his motion for directed verdict on his breach of contract claim. Carter claims that all the evidence presented at trial proved that UK did not follow its own personnel rules and acted in bad faith in its application of the rules against him. The rules Carter alleged were not followed are rules 62, 12, and 7. We believe the trial court correctly denied the motion for directed verdict.
Rule 62 concerns corrective action. It sets forth the procedure human resources should follow when an employee's job performance or conduct needs to be improved. Specifically, Carter argues that UK failed to follow this policy when it suspended him for almost three months when rule 62 only allows for a three-day suspension. Kim Wilson, Vice President of Human Resources, and Ferlan testified that rule 62 did not apply to Carter's case because his misconduct was a terminable offense, which was regulated by human resources rule 12. Because we have to accept this testimony as true for purposes of directed verdict, this issue was properly submitted to the jury.
Rule 12 concerns reasons an employee can be terminated for misconduct. Carter argues that UK did not follow this rule because it should have also terminated Hilton and Sturgeon. As previously discussed, evidence presented at trial indicated that Hilton and Sturgeon did not commit terminable offenses. Directed verdict was properly denied.
Rule 7 deals with Carter's Stage 2 grievance. As previously discussed, Carter attempted to appeal his suspension and termination by sending a certified letter to Kim Wilson. The certified letter was received by the UK post office, but was never retrieved by Wilson. Carter was informed that if he wished to appeal his suspension and termination, he must appeal to Wilson. Although the letter was not retrieved by Wilson from the UK post office, no evidence was presented that Wilson, or anyone else at UK, intentionally prohibited Carter from perfecting his appeal. Evidence at trial indicated it was Carter's responsibility to ensure his appeal was successfully perfected. This was sufficient to make this a jury issue.
Carter's final argument on appeal is that the trial court erred in prohibiting Dr. Robert Reber to testify. The proper standard for review of evidentiary rulings is abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). We do not believe the trial court abused its discretion in prohibiting Dr. Reber's testimony.
Carter intended to introduce Dr. Reber as an expert in human resources and management policies. Dr. Reber would also have introduced treatises that explain the "Hot Stove Rule". Kentucky Rule of Evidence (KRE) 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
Here, the trial court entered a 22-page order detailing the reasons it was prohibiting Dr. Reber's testimony. The court found that his testimony would not assist the trier of fact because, after reviewing his deposition, the court found that Dr. Reber held no opinion as to why UK treated Carter differently than Hilton and Sturgeon. The court also believed that the factual questions presented in the case were not ones which would require an expert to help the jury understand. Whether or not human resources policies were being applied consistently and fairly is common knowledge and something a jury could determine without an expert. The trial court did not abuse its discretion.
For the foregoing reasons, we affirm.
ALL CONCUR. BRIEFS AND ORAL ARGUMENT
FOR APPELLANT: Aubrey Williams
Louisville, Kentucky BRIEF AND ORAL ARGUMENT
FOR APPELLEE: Barbara A. Kriz
Lexington, Kentucky