Opinion
NO. 2012-CA-001351-MR
02-21-2014
EVELYNE GOZAL APPELLANT v. UNIVERSITY OF LOUSIVILLE SCHOOL OF MEDICINE APPELLEE
BRIEFS FOR APPELLANT: Oliver H. Barber, Jr. Rebecca A. Reichenbecher Louisville, Kentucky Richard T. Seymour Wasington, DC BRIEF FOR APPELLEE: Craig C. Dilger Melanie R. Siemens Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 09-CI-011185
OPINION
AFFIRMING IN PART AND
DISMISSING IN PART
BEFORE: CAPERTON, TAYLOR, AND THOMPSON, JUDGES. CAPERTON, JUDGE: The Appellant, Evelyne Gozal (hereinafter "Evelyne"), appeals the April 3, 2012, opinion and order of the Jefferson Circuit Court granting summary judgment to the Appellee, University of Louisville School of Medicine (hereinafter "University"), on her claims of sexual harassment and sex discrimination, as well as from the July 9, 2012, denial of her Kentucky Rules of Civil Procedure (CR) 60.02 motion to set aside the April 3, 2012, opinion and order. The University has filed a partial motion to dismiss Evelyne's appeal asserting that she failed to timely file an appeal of the court's April 3, 2012, opinion and order, and that the portion of the appeal from that order should be dismissed. Upon review of the record, the arguments of the parties, and the applicable law, we dismiss Evelyne's appeal from the April 3, 2012, order upon the finding that such appeal is untimely, and affirm the court's July 9, 2012, denial of her motion pursuant to CR 60.02.
Evelyne and Dr. David Gozal (hereinafter "David") began working together at the University of Louisville as a married couple in 1999. Evelyne is currently an Associate Professor of Pediatrics, with a joint appointment in the Department of Pharmacology and Toxicology and in the Department of Physiology and Biophysics at the University of Louisville School of Medicine. David, her then husband and supervisor, was appointed as Professor of Pediatrics and Professor of Pharmacology and Toxicology, Director of the Institute, and Vice Chair for Research of the Department of Pediatrics.
Evelyne and David divorced in 2002 after 26 years of marriage but nevertheless continued working in the same department while their personal relationship deteriorated. Evelyne asserts in her brief to this Court that the "hostile work environment" at the University began in "late 2004, early 2005," which the University contends corresponded with the timing of David's romantic relationship with and marriage to Dr. Leila Kheirandish, who worked with the Gozals at the University. The University contends that an increase in hostilities began upon David's remarriage, a contention which Evelyne disputes. The record indicates that on June 30, 2005, four days after Leila and David were married, Evelyne and Leila exchanged a series of e-mails, after which both sides retained legal counsel and exchanged cease-and-desist letters accusing each other of harassment.
David testified that "a very substantial personal dissatisfaction" existed as a result of the divorce and that this lawsuit is "obviously a personal problem" that reflects the "personal agenda and vendetta of Dr. Evelyne Gozal against me." (RA 566, 568: D. Gozal Dep. 218-19, 252). Likewise, Evelyne testified that the years following her divorce were marked by "aggressiveness during lab meetings and personal interactions." (RA 479; E. Gozal Dep. 152). Judy Anderson, who worked with the Gozals at the University's Kosair Children's Hospital Research Institute (hereinafter "KCHRI"), testified that when "David filed for divorce that things really started kind of going downhill," and that, "I was in the middle of [the Gozals], but still, when you are going through a divorce, it's not always pleasant to see your spouse on a daily basis day in and day out." (RA 584-85: Anderson Dep. 14-15). Further, Leroy Sachleben, Evelyne's laboratory technician, testified that the atmosphere of KCHRI "began changing when Evelyne and David got divorced." (RA 591: Sachleben Dep. 13).
In February of 2005, Evelyne approached Dr. Gerard Rabalais, the Chairman of the Department of Pediatrics, and told him that David was being "aggressive in public." Evelyne asserts that though she and David were able to work amicably for almost three years after their divorce, in 2005, he became increasingly hostile. After learning of the Gozals' divorce and the resulting personal disagreements between Evelyne and David, Rabalais immediately removed David as Evelyne's supervisor. David also removed his laboratories from physical proximity to Evelyne's, which she conceded minimized their daily interaction. David testified that he voluntarily moved his laboratories rather than asking Evelyne to move hers to "minimize the clear personal friction" between them. Rabalais also continued to have numerous meetings with and about the Gozals. Specifically, he continued to monitor the "bickering between two unhappy former marriage partners."
Evelyne supports these assertions with the testimony of Dr. Avital Schurr, a former Professor of Anesthesiology at the University, who testified that he collaborated with both David and Evelyne, but that as time passed, David's "hostility to Dr. Evelyne Gozal made me uncomfortable."
RA 569: D. Gozal Dep. 256.
RA 630: Rabalais Dep. 64.
Evelyne made numerous allegations against David, which were ultimately investigated at the highest levels of the University at the direction of Dr. Edward Halperin, then Dean of the School of Medicine, as well as by the Associate Dean for Faculty Affairs, University counsel, the University's Sexual Harassment Officer, and the Director of the Affirmative Action Office. It was ultimately concluded, following these investigations, that the situation between Evelyne and David did not constitute a "hostile work environment." Finally, the University confronted David with Evelyne's allegations and he provided a written response denying what he asserted were "numerous false, misleading, and slanderous allegations made against me by my ex-spouse."
These allegations and the University's responses included the following:
(1) Exclusion from laboratory meetings: In November 2004, David made a blanket request that all faculty stop attending his lab meetings. The University states that all of these faculty, aside from Evelyne, were male. The University contended that because both Evelyne and her male laboratory technician were "banned as a group" with the male faculty, Evelyne was not discriminated against because of sex.
(2) Request for additional laboratory space: In August 2005, Evelyne requested additional laboratory space from David. The University states that at the time of Evelyne's request there was no available laboratory space, but that David offered Evelyne lab space on the south pod of the third floor once it was vacated by Dr. Jack Cheng. Evelyne refused that offer, and instead requested space immediately adjacent to her laboratory on the north pod of the third floor. After a series of meetings, Rabalais resolved Evelyne's request by November 1, 2005, when another faculty member vacated her laboratory. At that time, Evelyne received her preferred lab space. The University asserts that insofar as this issue is concerned, Evelyne was treated equally to or better than the male faculty at the University, noting that male faculty members had also requested additional adjacent lab space, and had been denied because none was available.
(3) University recruitment of Dr. Vijay Ramesh: Evelyne asserts that David purposely excluded her from meeting with potential recruits. The record reflects that Dr. Ramesh did not meet with Evelyne on his first visit to the University, but did interview with her on his second visit.
(4) Transfer to the Department of Neurosurgery: In 2007, Evelyne requested a transfer from the Department of Pediatrics to the Department of Neurosurgery, although she wanted her laboratory to remain where it was, which happened to be in close proximity to David. The University found this request for "transfer" to be "inconsistent with the need to remove herself from what she perceived to be a hostile environment." Halperin met with the chairmen of three departments in the School of Medicine, but no mutually agreed-upon transfer agreement could be reached.
(5) Authorship dispute: A dispute existed between Evelyne and Dr. DeMatteis, who believed that Evelyne should be senior author on a particular publication, while David and Dr. Epstein believed that Dr. Epstein should be senior author. The University asserts that there was no discrimination involved in the fact that Dr. Epstein was ultimately selected as senior author, and notes that in any event, the lack of publication of the disputed paper ultimately disadvantaged all authors, male and female.
(6) Dr. David Gozal had fired another female employee, Dr. Karen Waters, after becoming hostile to her, and that he fired Dr. Louise O'Brien five days after she told everyone she was pregnant, despite having recently talked about promoting her. In response, the University notes that David's conflicts were not limited to women, noting that he also had conflicts with two male doctors, namely Dr. Avital Schurr and Dr. Maurice DeMatteis.
On November 9, 2009, Evelyne filed suit against the University, bringing claims of sex discrimination and sexual harassment pursuant to the Kentucky Civil Rights Act, Kentucky Revised Statutes (KRS) Chapter 344. On November 30, 1999, the University filed its answer in which it denied any wrongdoing. As previously noted herein, on April 3, 2012, the Jefferson Circuit Court awarded summary judgment to the University, and dismissed Evelyne's complaint in its entirety.
As of the time briefs were submitted in this matter, Evelyne remained employed as a tenured faculty member in good standing at the University, having been awarded tenure on December 1, 2006, and passing her post-tenure review in 2010. The University further notes that during the alleged period of harassment, Evelyne received stellar annual performance evaluations from David, who supported her promotion and tenure in addition to successfully obtaining grant funding and publishing fifteen papers in scientific journals.
Prior to addressing what we believe are the matters appropriately before us, we turn to the University's partial motion to dismiss Evelyne's appeal. As noted, on April 3, 2012, the Jefferson Circuit Court awarded summary judgment to the University and dismissed Evelyne's complaint in its entirety. The court's order was deemed a "final adjudication," and held that all of Evelyne's claims failed. On April 13, 2012, Evelyne filed a CR 60.02 motion to set aside the court's order, and the University responded by saying that the motion failed to establish any of the six grounds for relief set forth in CR 60.02. Subsequently, on June 18, 2012, Evelyne attempted to file a CR 59.05 motion. The University objected, and on July 9, 2012, the court issued an order denying the CR 60.02 motion. Therein, the court stated that the April 3, 2012, opinion and order had been a final and appealable summary judgment and that Evelyne's attempt to bring a CR 59.05 motion more than ten days thereafter was untimely.
Subsequently, on August 2, 2012, four months after the entry of summary judgment, Evelyne filed her notice of appeal. Therein, she purported to appeal from two orders of the circuit court, namely, the July 9, 2012, opinion denying the CR 60.02 motion and the April 3, 2012, order granting the motion for summary judgment. The University asserts that this latter appeal is well outside the 30-day time period of CR 73.02(1), and that the only action properly before us is the appeal from the July 9, 2012, opinion and order denying Evelyne's CR 60.02 motion.
In support of its argument that we should dismiss Evelyne's appeal from the CR 59.05 motion, the University asserts that to allow her to add CR 59.05 to her CR 60.02 motion would defeat the policies behind CR 73.02, and blur the distinction between CR 59 and CR 60, which are two very different rules. Thus, the University asserts that we should limit the scope of our review to Evelyne's appeal from the circuit court's July 9, 2012, opinion and order denying her CR 60.02 motion for relief.
In response, Evelyne argues that the court's April 3, 2012, order on summary judgment was not a final and appealable order because it failed to dispose of all claims in the case. Specifically, she notes that in its November 30, 2009, answer, the University demanded a dismissal of Evelyne's claim, but also requested attorney fees. Evelyne notes that the April 3, 2012, order did not mention the University's request for attorney fees or include a "determination that there is no just reason for delay." Evelyne therefore made the argument below that the April 3, 2012, order was interlocutory, because it failed to dispose of all claims.
The court rejected that argument in its July 9, 2012, order, saying it had resolved the issue and that there was no statutory mandate that the issue of fees be resolved in the same judgment as other issues, that they were separate claims, separately pled, and that the court had awarded the attorney fees and costs by judgment, with only the amount left to be determined. Evelyne now argues that nothing in the award of April 3, 2012, indicates that the attorney fee issue was reserved. In doing so, she relies upon CR 54.02, which states:
(1) When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay. The judgment shall recite such determination and shall recite that the judgment is final. In the absence of such recital, any order or other form of decision, however designated, which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.Evelyne argues that to depart from the language of CR 54.02 in an instance where the potential claim is one for attorney fees instead of damages would result in treating dissimilarly two parties who have the same interest at stake, and who are trying to decide whether the additional amount at stake is worth the cost of an appeal. In making these arguments, Evelyne recognizes that the July order from which she appealed also failed to resolve the fee claim and did not include a "determination that there was no just reason for delay." Evelyne nevertheless asserts that the difference is that the July order recited that the court had awarded fees and costs to the University and would decide the amount later.
(2) When the remaining claim or claims in a multiple claim action are disposed of by judgment, that judgment shall be deemed to readjudicate finally as of that date and in the same terms all prior interlocutory orders and judgments determining claims which are not specifically disposed of in such final judgment.
(3) For the purposes of this rule demands in an action for both injunctive relief and damages may be treated as separate claims.
Evelyne asserts that to the extent that the July 9, 2012, order denying the CR 60.02 motion is appealable, its entry operated as a readjudication of all issues previously determined pursuant to CR 54.02, making her appeal timely as to the grant of summary judgment on April 3, 2012, as well as to the denial of reconsideration on July 9, 2012. Alternatively, she argues that the July 9, 2012, order may also not be final and appealable because it failed to issue the "determination that there is no just reason for delay" required by CR 54.02(1). As another alternative argument, Evelyne asserts that the court's decision to revisit all of the evidence relevant to its summary judgment at the June 18, 2012, hearing was a grant of reconsideration, making the entire determination of summary judgment appealable.
Upon review of the record, the arguments of the parties, and the applicable law, this Court is of the opinion that the court's April 3, 2012, order was a judgment which adjudicated all claims. Our courts have clearly held that a final and appealable judgment is one that adjudicates all the rights of the parties. CR 54.01, King Coal Co. v. King, 940 S.W.2d 510 (Ky. App. 1997). Accordingly, though it did not specifically state its finality or that there was "no just cause for delay," the April 3, 2012, order was nevertheless final and appealable as provided by CR 54.02(1). Thus, we are in agreement with the University that any appeal from that order should have been made within the time period required by CR 73.02. The motion filed by Evelyne on April 13, 2012, was a "Motion to Set Aside Opinion and Order of April 3, 2012, Pursuant to CR 60.02." (Emphasis added).
On the issue of the timely filing of motions, CR 62.01 is clear:
A motion for a new trial or to alter, amend or vacate a judgment made pursuant to Rule 59, or a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 50, or a motion for amendment to the findings or for additional findings made pursuant to Rule 52.02 shall operate to stay the execution of or any proceedings to enforce a judgment pending the disposition of any such motion or motions, provided that such motion is filed with the court within the time prescribed for the making of or service of such motion. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for relief from a judgment or order made pursuant to Rule 60. Unless otherwise ordered by the court, a final judgment in an action for an injunction shall not be stayed during the period after its entry and until an appeal is taken.CR 62.01 is clear that when a motion is made pursuant to CR 60, as was the motion in the case sub judice, the court may stay the execution of any proceedings in its discretion. The court did not do so in this instance. Accordingly, we agree with the University that Evelyne's belated attempt to appeal the April 3, 2013, opinion and order under CR 59.05 was untimely, and order that same hereby be dismissed.
In so finding, we briefly address Evelyne's argument that the parties' June 18, 2012, hearing was "in effect a grant of reconsideration making the entire determination of summary judgment appealable." We find this argument to be without merit, believing the judgment to have been final and appealable at the time it was entered on April 3, 2012, for the reasons previously set forth herein.
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In so finding, we are compelled to also address the issue of the "claim" for attorney fees made by the University, upon which Evelyne relies in making her argument that the April 3, 2012, order was interlocutory. In reviewing this issue, we note that the parties have directed this Court's attention to Mitchell v. Mitchell, 360 S.W.3d 220 (Ky. 2012), wherein our Kentucky Supreme Court addressed the issue of whether attorney fees were part of the claim or collateral to the merits of the action.
In that case, the former husband filed a motion seeking reduction of maintenance and lost. Thereafter the former wife sought an award of attorney fees against him. The court found that her claim for attorney fees was a separate claim and that, accordingly, the denial of the husband's spousal maintenance motion was interlocutory and not a final judgment because the wife's fee claim had not been determined and because there had been no determination of "no just cause for delay." Evelyne relies upon Mitchell in support of her argument that the University's "claim" for attorney fees was pled in its answer and not after the entry of summary judgment and was thus a separate claim thereby rendering the court's April 2012, order interlocutory. We disagree.
In the opinion of this Court, the matter sub judice is distinguishable from Mitchell insofar as in Mitchell the attorney fees were not dependent upon the outcome of the underlying claim, but instead could be requested and adjudicated separate and apart from the success of the claim. In Mitchell, unlike the matter sub judice, the claim for attorney fees was based on a statute which allowed an award of attorney fees in cases of divorced couples based on litigation expense and disparate income. Hence, the judgment issued in Mitchell did not adjudicate all the claims.
By contrast, in this matter the attorney fees were addressed only in the University's answer and were not made as an affirmative claim, but were only part and parcel of the University's answer in this matter. Indeed, the University confirms in its brief to this Court that no separate claim for attorney fees was made below.
Our courts have clearly held that in the absence of contractual or statutory liability, attorney fees are not recoverable as an item of damages. See Lyon v. Whitsell, 245 S.W.2d 926 (Ky. App. 1951). Moreover, we note that below the court's April 3, 2012, order on its face left nothing to be resolved. It did not state that fees were awarded, did not provide for their amount, did not reserve the issue or in any way indicate that the issue would be handled in a separate proceeding. Pursuant to CR 52.02, a judgment becomes final ten days after it is entered by the trial court. As neither party filed a motion to alter, amend, or vacate the April 3, 2012, order within ten days on the issue of attorney fees and costs, the court lost jurisdiction to award them. Accordingly, we believe that the circuit court correctly disposed of all claims on summary judgment and did not fail to adjudicate any "claim" by the University in its order of April 3, 2012.
Having so found, we now turn to the issues properly before us on appeal, namely Evelyne's appeal from the court's July 9, 2012, opinion and order denying her request for CR 60.02 relief. Upon review of the record, the arguments of the parties, and the applicable law, this Court affirms the lower court's order denying Evelyne's request for CR 60.02 relief.
In so finding, we note that CR 60.02 provides that a court may grant relief from its final judgment or order in six instances: (a) mistake, inadvertence, surprise, or inexcusable neglect; (b) newly discovered evidence; (c) perjury or falsified evidence; (d) fraud affecting the proceedings; (e) the judgment is void; or (f) any other reason of an extraordinary nature justifying relief. Kurtsinger v. Bd. of Trustees of Ky. Ret. Sys., 90 S.W.3d 454, 456 (Ky. 2002). We are in agreement with the court below that Evelyne's motion for relief did not satisfy any of the six grounds enumerated by CR 60.02.
While Evelyne asserts that the court made a "mistake" in concluding that her claims of sex discrimination and hostile work environment failed as a matter of law, we disagree. To establish a claim of a gender-based hostile work environment, Evelyne was required to show that: (1) she is a member of a protected class, (2) she was subjected to unwelcome sexual harassment, (3) the harassment was based upon her sex, (4) the harassment created a hostile work environment, and (5) the employer is vicariously liable. Clark v. United Parcel Service, Inc., 400 F.3d 341 (6th Cir. 2005). The court below found, upon a review of all of the evidence before it that Evelyne failed to meet this burden. Our courts have clearly held that CR 60.02 is not a vehicle for parties to relitigate previously determined issues. Louisville Mall Associates, LP v. Wood Center Properties, LLP, 361 S.W.3d 323 (Ky. App. 2012).
Turning to the remaining grounds for relief under CR 60.02, we find that Evelyne offered no new evidence or grounds to support a finding that summary judgment was improper, nor do we find any basis for relief from the final judgment on grounds of perjury or falsified evidence, fraud affecting the proceedings, or any other reason of an extraordinary nature justifying relief.
Accordingly, for the foregoing reasons, we hereby dismiss Evelyne's appeal from the April 3, 2012, order upon the finding that such appeal is untimely, and affirm the court's July 9, 2012, denial of Evelyne's motion pursuant to CR 60.02, the Honorable James M. Shake, presiding.
ALL CONCUR. BRIEFS FOR APPELLANT: Oliver H. Barber, Jr.
Rebecca A. Reichenbecher
Louisville, Kentucky
Richard T. Seymour
Wasington, DC
BRIEF FOR APPELLEE: Craig C. Dilger
Melanie R. Siemens
Louisville, Kentucky