Opinion
NO. 2011-CA-001059-MR
10-26-2012
KEVIN JONES APPELLANT v. TOYOTETSU AMERICA, INC. APPELLEE
BRIEF FOR APPELLANT: Marcia A. Smith David O. Smith Corbin, Kentucky ORAL ARGUMENT FOR APPELLANT: Marcia A. Smith BRIEF FOR APPELLEE: P. Douglas Barr Gwen R. Pinson Lexington, Kentucky ORAL ARGUMENT FOR APPELLEE: P. Douglas Barr
NOT TO BE PUBLISHED
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE JEFFREY T. BURDETTE, JUDGE
ACTION NO. 09-CI-00572
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MOORE AND STUMBO, JUDGES. STUMBO, JUDGE: Kevin Jones appeals from an Order of the Pulaski Circuit Court granting summary judgment in favor of Toyotetsu America, Inc. in his action alleging reverse discrimination and improper discharge from employment, hostile work environment (sexual harassment), and the tort of outrage. He argues that the court erred in failing to conclude that he established a prima facie case sufficient to overcome Toyotetsu's motion for summary judgment. We conclude that summary judgment was properly rendered, and accordingly affirm the Order on appeal.
In 2008, Jones was an employee of Toyotetsu in Somerset, Kentucky. On December 9, 2008, Anthony Bray was present at the Toyotetsu facility in the capacity of his employment with outside contractor Allied Toyotalift. Jones and Bray were acquainted and considered each other to be friendly. On the date at issue, Bray touched Jones on his chest without Jones's consent, and then grabbed and jiggled Jones's stomach where it overlapped Jones's belt. Jones told Bray to stop touching him, and told Bray that if Bray grabbed Jones again Jones would punch Bray in the mouth. Bray grabbed Jones's stomach again, after which Jones "straight armed" or shoved Bray away with an open hand.
Jones considered the matter ended, and did not report it to Toyotetsu. However, another employee reported the matter to Toyotetsu's management. Jones was suspended pending an investigation of the incident. After the investigation was concluded, Jones's employment with Toyotetsu was terminated based on Toyotetsu management's determination that Jones threatened and struck Bray in violation of Toyotetsu's Serious Misconduct Policy. Toyotetsu was unable to take corrective action as against Bray because he was not a Toyotetsu employee. Toyotetsu did, however, bar Bray from returning to Toyotetsu's facility.
Jones subsequently filed the instant action against Bray and Toyotetsu setting out claims of battery, sexual harassment, wrongful discharge, reverse discrimination and the tort of outrage. Bray and Toyotetsu each moved for summary judgment on all claims and both motions were sustained by way of separate orders. In granting summary judgment as to Toyotetsu, the court determined that even when viewing the record in a light most favorable to Jones, it would be impossible for him to satisfy the elements of the causes of action if the matter proceeded to trial.
Jones now appeals from the Order granting summary judgment in favor of Toyotetsu. He argues that the circuit court erred as a matter of law in dismissing all claims against Toyotetsu. In support of his argument that summary judgment was improperly rendered, his primary contention is that a jury could reasonably conclude that a woman would not have been discharged from employment under the same circumstances as those which led to Jones's termination. Jones contends that Toyotetsu was not prepared to tender any evidence at trial that a female employee had been terminated under circumstances similar to or the same as the one at bar. He also claims that women were treated differently at Toyotetsu because Jones's manager, Jenny Chestnut, required women to be accompanied by someone when Bray was in their work area based on Bray's alleged prior inappropriate conduct.
Jones does not appeal from the Order granting summary judgment in favor of Bray.
Jones also alleges that during the last year of his employment with Toyotetsu, Jones had been sexually harassed by Bray when Bray showed Jones sexually explicit images and videos. Jones contends that Bray continued to show Jones these images even after Jones told him to stop, and that Jones complained to Chestnut who did nothing in response.
Jones goes on to argue that when the disputed facts and the record were viewed in a light most favorable to him, the court improperly failed to conclude that he could have met the four-part test for establishing reverse sexual discrimination resulting in the termination of his employment. Additionally, he contends that he has set out a prima facie case of "sexual harassment hostile work environment" which the court improperly disposed of by way of summary judgment. Ultimately, the focus of Jones's argument is "that he was discharged because he was defending himself against sexual harassment by a co-worker, which would not have happened if he had been a woman in the very same circumstances." He seeks an Order reversing the award of summary judgment, and remanding the matter for further proceedings.
Jones's cause of action centers on two primary claims - first, that he was subjected to reverse sexual discrimination, and second, that he was subjected to hostile work environment sexual harassment. On the claim of reverse sexual discrimination, Jones contends Toyotetsu discriminated against him on the basis of his sex when his employment was terminated after he shoved Bray. As the trial court properly notes, under the Kentucky Civil Rights Act, Kentucky Revised Statutes (KRS) 344.040, it is unlawful for a covered employer to discharge any individual or to otherwise discriminate against any individual with respect to the conditions or terms of employment because of the individual's gender. Because the Act is similar to Title VII of the federal Civil Rights Act of 1964, the Kentucky Civil Rights Act should be interpreted consistently with federal law. Ammerman v. Board of Education, 30 S.W.3d 793, 797-798 (Ky. 2000).
In proving a prima facie case of discrimination, the claimant must prove that he or she 1) is a member of a protected class, 2) was subjected to adverse employment action, 3) was qualified for his or her position, and 4) was replaced by, or treated less favorably than, a person outside the protected class. Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992). "[A] prima facie case of 'reverse discrimination' is established upon a showing that background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority." Jefferson County v. Zaring, 91 S.W.3d 583, 591 (Ky. 2002)(citing Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985). In granting summary judgment on this issue, the Pulaski Circuit Court rejected Jones's contention that a woman in the same position would not have been fired if she threatened and/or shoved someone who grabbed her chest and stomach in an unwanted manner. In so doing, the court opined that Jones offered nothing more than mere speculation to support this claim. Additionally, the court disagreed with Jones's assertion that Toyotetsu gave female employees more protection from Bray than it did its male employees.
As to the claim of hostile work environment sexual harassment, in order to establish a prima facie case, the claimant must show that 1) he is a member of a protected class, 2) he was subjected to unwelcomed sexual harassment, 3) the harassment was based on his 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, 347 (6th Cir. 2005). In rejecting this claim, the Pulaski Circuit Court determined that Jones, as a male, is not a member of a protected class, and that even if he were, Jones would be unable to present any evidence at trial that the unwelcomed touching was sexual in nature. Additionally, the court relied on Ammerman, supra, for the conclusion that isolated incidents are insufficient to meet the elements of the claim unless they are "extremely serious." In sum, the court opined that Jones could not meet the elements of his claims if the matter proceeded to trial.
Summary judgment "shall be rendered forthwith 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." Kentucky Rules of Civil Procedure (CR) 56.03. "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Id. "Even though a trial court may believe the party opposing the motion may not succeed at trial, it should not render a summary judgment if there is any issue of material fact." Id. Finally, "[t]he standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
When viewing the record in a light most favorable to Jones and resolving all doubts in his favor, we must conclude that summary judgment was properly rendered. On the claim of reverse sexual discrimination, the trial court determined that Jones's claim of disparate treatment based on gender was purely speculative and not supported by the record. Jones argued that a woman in the same position as Jones - i.e., one who shoved or struck a third party after being touched in an unwelcomed manner - would not have been fired for violating Toyotetsu's Serious Misconduct Policy. The trial court's finding on this issue is supported by the record. Toyotetsu presented evidence by way of deposition that women had been fired for threatening violence in violation of the Serious Misconduct Policy. Conversely, Jones provided nothing in support of his claim that a female employee had not been fired or would not have been fired under circumstances the same or similar to those at issue. Some proof of disparate treatment was required to make a prima facie case that Toyotetsu was the unusual employer who discriminates against the majority. Zaring, supra. Even when the record is viewed in light most favorable to Jones, he made no such showing, and the trial court did not err in so finding. Additionally, even if Jones made a prima facie case of reverse discrimination, Toyotetsu demonstrated a legitimate, non-discriminatory reason for terminating Jones's employment, to wit, his uncontroverted violation of the workplace employment policy.
On the claim of hostile work environment sexual harassment, the trial court again found that because Jones is a male, he is not a member of a protected class and must demonstrate that Toyotetsu is the unusual employer who discriminates against the majority. As noted above, Jones failed to demonstrate that Toyotetsu could be characterized as such an employer. Additionally, Jones did not claim that the unwanted touching was sexual in nature until after Toyotetsu's motion for summary judgment was entered, and this claim contradicted Jones's initial characterizations of the unwanted touching as something other than sexual in nature. Jones never maintained that the touching was sexual when interviewed by Toyotetsu, nor at any time by way of deposition or affidavit prior to the filing of Toyotetsu's motion for summary judgment. Additionally, a third party who witnessed the incident and reported it to Toyotetsu did not characterize the touching as sexual, but rather as a physical altercation culminating in Jones shoving or punching Bray. A post-deposition affidavit that conflicts with the deposition transcript may not be submitted solely to defeat a motion for summary judgment. Gilliam v. Pikeville United Methodist Hospital, 215 S.W.3d 56, 62 (Ky. App. 2006).
Kentucky courts have established a high threshold for conduct creating a hostile work environment. See generally, Ammerman, supra, which sets out factors to be considered including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance. In the matter at bar, there were two alleged incidents, separated by months, where Bray touched Jones in a manner that Jones considered unwanted or offensive. Jones also recounted three incidents where Bray allegedly showed pictures or video on his phone to Jones. Prior to Toyotetsu's motion for summary judgment, Jones had little recollection of these events and could not exactly remember what he saw. The trial court found as surprising Jones's subsequent affidavit where he was able to remember what he saw in some detail and which contradicted Jones's early deposition testimony. These matters are set out in the record and support the trial court's conclusion that Jones's post-motion affidavit was not credible. Finally, the trial court determined that even if true, these events did not rise to the level of frequency or severity sufficient to constitute a hostile work environment, and certainly did not affect Jones's work. Jones did not even report the second incident of touching which resulted in his shoving or striking Bray, and Toyotetsu would not have known of it but for another employee reporting it.
Again, this analysis must be conducted in the context of Toyotetsu's motion for summary judgment, wherein the record must be viewed in a light most favorable to Jones and resolving all doubts in his favor. Even when viewing the record in such a manner, we cannot conclude that the trial court erred in finding that Jones is unable to present a prima facie case of reverse discrimination or hostile work environment sexual harassment. Accordingly, we find no error.
For the foregoing reasons, we affirm the Pulaski Circuit Court's Order Granting Partial Summary Judgment In Favor Of Defendant, Toyotetsu America, Inc.
ALL CONCUR. BRIEF FOR APPELLANT: Marcia A. Smith
David O. Smith
Corbin, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Marcia A. Smith BRIEF FOR APPELLEE: P. Douglas Barr
Gwen R. Pinson
Lexington, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
P. Douglas Barr