Opinion
NO. 2015-CA-001973-MR
02-02-2018
JOHN HICKS APPELLANT v. PIKE COUNTY BOARD OF EDUCATION APPELLEE
BRIEF FOR APPELLANT: Timothy A. Parker Prestonsburg, Kentucky BRIEF FOR APPELLEE: Neal Smith Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 10-CI-00807 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND MAZE, JUDGES. MAZE, JUDGE: This appeal arises from a Pike Circuit Court granting the Pike County Board of Education's motion for summary judgment, which dismissed the Appellant's, John Hicks, claim for age discrimination. As we find no issues as to material facts, we affirm.
Background
In 2010, John Hicks (Hicks) had submitted his application to be considered by the Pike County Board of Education for employment regarding any open positions. Hicks was a certified special education teacher. During this time, another teacher, Suzanne Preece (Preece), was employed as a teacher. She had worked in the school district previously and returned in 2009 to teach in the 2009-10 school year. Preece was enrolled to complete the necessary hours to complete her Master's degree. She was unable to complete the necessary classes before the 2010-11 school year and was therefore given an emergency certificate until she completed her Master's degree.
Hicks filed the current action, alleging that the Pike County Board of Education (Board) violated its hiring practices by failing to post Preece's job when she failed to complete her Master's and by failing to follow the proper emergency certificate procedures. This complaint was dismissed by summary judgment granted in favor of the Board. Hicks then filed a supplemental complaint alleging age discrimination. The complaint was also dismissed by summary judgment in favor of the Board. This appeal follows.
Standard of Review
The standard of review governing an appeal of a summary judgment is well-settled. "[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 Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). In essence, for summary judgment to be proper, the movant must show that the adverse party cannot prevail under any circumstances. Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985). Therefore, we will find summary judgment appropriate only "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. Because a summary judgment involves no fact finding, this Court's review is de novo, in the sense that we owe no deference to the conclusions of the trial court. Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).
Kentucky Rules of Civil Procedure.
Analysis
On appeal, Hicks contends that there were sufficient facts to present to a jury the question of whether the Board discriminated against him based on his age. Hicks argues that the Board did not follow the law when it issued an emergency certificate to another teacher instead of posting the position as available. Hicks asserts that the Board did this to discriminate against him because of his age.
KRS 344.040(1) states that it is unlawful for an employer "[t]o fail or refuse to hire, or to discharge any individual...because of the individual's...age forty (40) and over . . . ." To prove an age discrimination claim, an individual must either provide "direct evidence of discriminatory animus [or] [a]bsent direct evidence of discrimination, Plaintiff must 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)." Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky. 2005). The burden-shifting test provides that,
Kentucky Revised Statutes. --------
[A] plaintiff can establish a prima facie case of age 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.Id. at 496.
Here, Hicks was not considered for a position. The position Hicks refers to was never posted because the Board had the position filled by Preece with an emergency certificate. Hicks's appellate brief contains no citation to law regarding age discrimination. Instead, the brief states that "a jury could reasonably infer from the evidence that the false statements made and the violations of law [regarding the issuance of the emergency certificate] were done in an effort to keep from hiring the Appellant due to his age." Regardless, there is no direct evidence of age discrimination.
Therefore, the burden shifts to Hicks to establish a prima facie case of age discrimination by proving the four elements discussed above. Hicks failed to present any material facts supporting this position. Hicks's deposition testimony contains several admissions which could make him less qualified and a less desirable candidate for the position than Preece. We therefore agree with the trial court that "because the [Board] had reasons other than age to choose the younger person rather than the Plaintiff, it does not appear that the Plaintiff would be able to establish the presumption of discrimination created by the statute...[and] the Plaintiff has not presented any proof of actual intent by the [Board] to engage in age discrimination." Because there are no issues of material fact, we affirm the trial court's decision regarding the age discrimination claim. Additionally, while Hicks discusses the issue of the emergency certificate in great detail, he makes no argument concerning the trial court's dismissal of his first complaint, but rather argues that the emergency certificate is evidence of age discrimination.
Conclusion
For the reasons stated herein, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Timothy A. Parker
Prestonsburg, Kentucky BRIEF FOR APPELLEE: Neal Smith
Pikeville, Kentucky