Opinion
No. 2007-CA-000525-MR.
April 4, 2008.
Appeal from Fayette Circuit Court, Honorable Kimberly N. Bunnell, Judge, Action No. 01-CI-01996.
James M. Morris, Lexington, Kentucky, Catherine S. Wright, Lexington, Kentucky, Oral Argument for Appellant.
James M. Morris, Sharon K. Morris, Lexington, Kentucky, Briefs for Appellant.
Barbara B. Edelman, Catherine S. Wright, Lexington, Kentucky, Briefs for Appellee.
Before: ACREE, KELLER, and MOORE, Judges.
OPINION
Norma Crockett appeals from the summary dismissal of her claim for damages based on her former employer's alleged violation of Kentucky Revised Statutes (KRS) 344.040 and 337.423. Having considered the parties' briefs and oral arguments, as well as the certified record and applicable case law, we affirm.
The facts of this case are not in dispute. Crockett began her employment with CHA Health as a Provider Relations Representative on August 2, 1999. Her salary was $32,000. As a part of her job, Crockett traveled to assigned territories in Kentucky to work with CHA's providers. While employed by CHA, the company underwent downsizing. Crockett retained her job and was assigned additional territories to cover throughout the state.
In August 2000, because of this increased workload, Crockett began looking for another job. She quickly found and accepted a new job at United Healthcare making more money than she did at CHA. In her exit interview with CHA, she gave "Advance Career" and "Additional Experience" as her reasons for leaving. Crockett's final day of employment with CHA was September 15, 2000.
Due to a family illness, Crockett never started the job with United Healthcare. In early October, Crockett contacted CHA about returning to her previous position. CHA did not rehire Crockett, but instead transferred a male employee, Chris Corbin, from CHA's contracting department into the job. Corbin's salary before the transfer was $39,000. He asked for a $1,000 raise when he changed jobs.
On May 25, 2001, Crockett filed the underlying complaint alleging constructive discharge and failure to rehire in violation of KRS 344.040. Crockett later amended her complaint on April 16, 2004, to include three new causes of action: (1) "pattern and practice" gender discrimination under KRS Chapter 344; (2) sexual orientation discrimination based on Lexington-Fayette County Local Ordinance § 2-33; and (3) an equal pay claim under KRS 337.423.
At a June 2004 hearing, the trial court dismissed Crockett's sexual orientation discrimination claim for lack of jurisdiction.
On November 27, 2006, the Fayette Circuit Court granted CHA's motion for summary judgment and Crockett's subsequent motion to alter, amend, or vacate that decision was denied. This appeal followed.
STANDARD OF REVIEW
The standard of review on appeal when a trial court grants a motion for summary judgment is whether the trial court correctly found there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. Palmer v. International Ass'n of Machinists, 882 S.W.2d 117, 120 (Ky. 1994); Stewart v. University of Louisville, 65 S.W.3d 536, 540 (Ky.App. 2001); Kentucky Rules of Civil Procedure (CR) 56.03. The movant bears the initial burden of convincing the court by evidence of record that no genuine issue of fact is in dispute, and then the burden shifts to the party opposing summary judgment to present "at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991); see also, City of Florence, Kentucky v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). The court must view the record in the light most favorable to the nonmovant and resolve all doubts in her favor. Commonwealth v. Whitworth, 74 S.W.3d 695, 698 (Ky. 2002); Lipsteuer v. CSX Transportation, Inc., 37 S.W.3d 732, 736 (Ky. 2000). "The inquiry should be whether, from the evidence of record, facts exist which would make it possible for the non-moving party to prevail. In the analysis, the focus should be on what is of record rather than what might be presented at trial." Welch v. American Publishing Co. of Kentucky, 3 S.W.3d 724, 730 (Ky. 1999); see also, Murphy v. Second Street Corp., 48 S.W.3d 571, 573 (Ky.App. 2001). Furthermore, as an appellate court we need not defer to the trial court's decision on summary judgment and will review the issue de novo as only legal questions are involved. Hallahan v. The Courier Journal, 138 S.W.3d 699, 704-05 (Ky.App. 2004).
In order to prevail against a properly supported motion for summary judgment in a discrimination case, it is incumbent upon the plaintiff to identify "cold hard facts" from which an inference of gender discrimination can be drawn. Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 700 (Ky.App. 1991). Further, because KRS 344.040, the pertinent provision of the Kentucky anti-discrimination statutes, closely mirrors similar language in Title VII of the Federal Civil Rights Act, we reiterate the often-cited directive of the Supreme Court of Kentucky in Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814 (Ky. 1992), that federal anti-discrimination case law should serve as guidelines in interpreting Kentucky anti-discrimination legislation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
With these standards in mind, we will undertake an examination of the propriety of the trial court's decision to grant summary judgment in favor of CHA on Crockett's claims of discrimination, retaliation, unequal pay, and the dismissal of Crockett's sexual orientation discrimination claim.
DISCRIMINATION
Crockett argues that the circuit court erred in granting summary judgment on the issue of discrimination. The trial court found Crockett was unable to establish a prima facie case of gender discrimination at the time of her resignation and when she failed to be rehired for her previous position.
In KRS 344.040(1) of the Kentucky Civil Rights Act, which mirrors its
federal counterpart, the General Assembly made it an unlawful practice for an employer:
To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges or employment, because of the individual's race, color, religion, national origin, sex, age forty (40) and over, because the person is a qualified individual with a disability, or because the individual is a smoker or non-smoker, as long as the person complies with any workplace policy concerning smoking[.]
If she has no direct evidence to support a claim for unlawful gender discrimination, a plaintiff may nonetheless make a prima facie case by showing that "(1) she is a member of a protected group; (2) she was subjected to an adverse employment decision; (3) she was qualified for the position; and (4) she was replaced by a person outside the protected class, or similarly situated non-protected employees were treated more favorably." Peltier v. U.S., 388 F.3d 984, 987 (6th Cir. 2004); see also, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If a plaintiff makes her prima facie case under this test, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the termination. McDonnell at 802. If the employer articulates such a reason, the burden then shifts back to the plaintiff to show that the explanation is merely pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
It is undisputed that Crockett is a member of a protected group, was qualified for her job, and she was eventually replaced by a male. Crockett's complaint alleges that two instances of adverse employment decisions affected her. The first instance, she claims, was when she was constructively discharged from her job and the second when CHA did not rehire her.
We begin our analysis by disposing of Crockett's constructive discharge claim. Crockett resigned from her job. She found a higher paying job and decided to take it. Even taking her allegations that she was underpaid and overworked as true, it strains reason to conclude, based on the record before us, that her situation was so intolerable that no reasonable person would have remained. Commonwealth Tourism Cabinet v. Stosberg, 948 S.W.2d 425, 427 (Ky.App. 1997).
Crockett's second discrimination claim focuses on the undisputed fact that CHA decided not to rehire her. Having established a prima facie case of discrimination, the burden then shifted to CHA to articulate its non-discriminatory reason for not rehiring Crockett. "However, the burden of refuting the prima facie case need not be met by persuasion; the employer need only articulate with clarity and reasonable specificity, a reason unrelated to a discriminatory motive, and is not required to persuade the trier of fact that the action was lawful." Handley, 827 S.W.2d at 700. From the record, it is clear the trial court concluded that CHA met this burden with its contention and evidence that Corbin was equally qualified for the position in question and that doubts were raised as to whether Crockett would be happy returning to the job she was so eager to leave just a few months prior. We see no error in this conclusion.
"After the defendant has met this burden, `the McDonnell-Douglas framework is no longer relevant.'" Brooks v. Lexington-Fayette Urban County Housing Authority, 132 S.W.3d 790, 797 (Ky. 2004), quoting 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., quoting Hicks, 509 U.S. at 521, 113 S.Ct. at 2755, 125 L.Ed.2d at 425. At this point, "it is incumbent on the employee to demonstrate that the stated reason is merely a pretext to cover the actual discrimination." Handley, 827 S.W.2d at 699. Such a demonstration involves "a new level of factual specificity requiring the plaintiff to prove her ultimate burden of persuading the trier of fact that she is the victim of intentional discrimination and that the reasons given by the employer are merely pretextual." Id. at 700. "The intent requirement may be satisfied by direct allegations and proof of invidious discriminatory bias, or circumstantially demonstrated by alleging or proving discriminatory conduct, practices, or the existence of significant racially disproportionate conduct." Id. "While intentional discrimination may be inferred from circumstantial evidence, there must be cold hard facts presented from which the inference can be drawn that race or sex was a determining factor." Id. at 700-01; see also Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226, 229 (Ky. 1984).
Crockett argues that she presented sufficient evidence of "pretext" to withstand summary judgment. However, we disagree. The record lacks the type of "cold hard facts" required to establish a case of intentional gender discrimination. In fact it is devoid of any specifically supported allegation that gender played any role in Crockett's history with CHA.
Based upon the evidence Crockett presented, we cannot hold that the trial court erred in granting summary judgment on her discrimination claims.
RETALIATION
Through KRS 344.280(1), the General Assembly enacted legislation making it unlawful for a person:
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.
In Brooks, 132 S.W.3d at 803, the Supreme Court of Kentucky defined a prima facie case of retaliation as a demonstration:
(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.
Id., citing Christopher v. Strouder Memorial Hospital, 936 F.2d 870 (6th Cir. 1991), cert. denied, 502 U.S. 1013, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991).
The trial court concluded Crockett could not establish a retaliation claim because she did not engage in a protected activity that could be the basis of CHA's failure to rehire her. We agree.
Crockett attempts to exaggerate the significance of a conversation with her former supervisor into such protected activity. Crockett's purpose in participating in that conversation was to determine the possibility of re-obtaining employment with CHA. She had heard that CHA management had offered her old job to a man at a salary greater than Crockett enjoyed when she voluntarily left employment. She suggested that if she were rehired, she should be treated fairly relative to the offer of which she had knowledge. She characterizes these circumstances as proof that, after raising concerns of discriminatory pay practices, CHA retaliated by refusing to rehire her. For this logic to hold together, it would require CHA management to possess the power of prescience. We fail to make the same connection between the allegations Crockett asserts and retaliatory animus, and we do not believe that this conversation has been sufficiently shown to be "protected activity" under KRS Chapter 344.
EQUAL PAY
We next turn to Crockett's equal pay claim under KRS 337.423. Crockett first raised this claim in her April 2004 amended complaint. She alleged CHA discriminated against her by paying her a lower salary than the man hired to replace her. The trial court addressed the merits of this claim. However, we find the claim to be barred by the applicable statute of limitations, KRS 337.430.
KRS 337.430 states:
Court action under KRS 337.420 to 337.433 and 337.990(14) may be commenced no later than six (6) months after the cause of action occurs.
In her amended complaint, Crockett alleged CHA violated KRS 337.423 by discriminating against her by paying her a salary that was less than the salary paid to a comparable employee of the opposite sex.
Crockett's employment with CHA ended on September 15, 2000. CHA correctly notes that under KRS 337.423 a cause of action cannot occur after the final date of employment, when an employee stops accruing wages. Crockett filed her equal pay claim on April 16, 2004, years beyond the six-month statutory period.
Crockett argues the statute should be tolled during the period in which she was unaware of the discrimination against her. We do not agree. Even if we accepted Crockett's tolling argument, we would still find that she failed to file her claim within six months of the date on which she discovered, or reasonably could have discovered, the alleged discrimination. That date was April 9, 2003, when she received personnel files from CHA detailing the salaries in her department, including that of her replacement, Corbin. Crockett did not amend her complaint until over a year after she received this information. Further, Crockett makes no claim that CHA attempted to obstruct or prevent her from amending her complaint to include an equal pay claim during the statutorily prescribed period.
We find Crockett's equal pay claim to be barred as untimely and affirm the trial court's dismissal of this claim.
SEXUAL ORIENTATION DISCRIMINATION
Finally we turn to Crockett's claim that she was discriminated against due to her sexual orientation. Crockett brought this claim under Lexington-Fayette County Local Ordinance (LFCLO) § 2-33. LFCLO § 2-33 provides protection for individuals who believe they have been discriminated against on the basis of their sexual orientation or gender identity. The trial court dismissed this claim for lack of jurisdiction because while LFCLO § 2-33 adopts several sections of KRS Chapter 344, it omits KRS 344.450. This statute establishes a cause of action for individuals who believe they have been subjected to discrimination in violation of Chapter 344 to be filed in circuit court. LFCLO § 2-33(3) provides a different remedy. Rejecting the procedure and subject matter jurisdiction contained in KRS 344.450, LFCLO § 2-33(3) provides instead that "the [Lexington-Fayette County Human Rights] commission shall have jurisdiction to receive, investigate, conciliate, hold hearings, and issue orders relating to complaints filed alleging discrimination in employment."
We agree with the trial court's finding. LFCLO § 2-33(3) provides the proper forum for this claim and the trial court acted appropriately by dismissing it. A cause of action for sexual orientation discrimination does not exist under Chapter 344 and cannot be brought as such in a circuit court.
The orders and judgment of the Fayette Circuit Court from which Crockett takes her appeal are affirmed.
ALL CONCUR.