Opinion
NO. 2018-CA-001052-MR
01-24-2020
MARK ROBERTS AND WILLIAM SCOTT WRIGHT APPELLANTS v. NORTON HEALTHCARE, INC. d/b/a NORTON HOSPITAL APPELLEE
BRIEFS FOR APPELLANTS: David N. Ward Theodore W. Walton Louisville, Kentucky BRIEF FOR APPELLEE: Donna King Perry Jeremy S. Rogers Alina Klimkina Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 13-CI-001102 OPINION
AFFIRMING
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BEFORE: DIXON, JONES, AND LAMBERT, JUDGES. LAMBERT, JUDGE: Mark Roberts and William Scott Wright appeal from the Jefferson Circuit Court's order granting the motion for summary judgment filed by Norton Healthcare, Inc., and dismissing the claims of Roberts and Wright. We affirm.
The facts and procedural history are summarized in the circuit court's order, and we repeat them here:
[Roberts and Wright] were employed as Security Officers for Norton, Wright since 1985 and Roberts since 2006. In December 2010 both were disciplined for violating Norton's Tobacco-Free Environment Policy, which prohibited smoking on Norton's campus. They were advised that further violations could result in additional discipline, up to and including termination. Despite the warning, [Roberts and Wright] admit they continued smoking on Norton's campus daily.
[Roberts and Wright] allege that during their employ they repeatedly complained about not getting breaks and lunches. They also complained of patients being placed on 72-hour holds, which required security officers to make visual contact with the patient every 15 minutes. Officers did evaluate or determine which patients were placed on these holds, and [Roberts and Wright] do not allege otherwise. They allege they discussed the matter with their direct supervisor Matthew Kurtz several times[,] but it was never addressed. [Roberts and Wright] met with the director of security, Stanley Helm ("Helm"), on or about January 3, 2012 to address their concerns about the 72-hour holds. While [Roberts and Wright] claim nothing was done, Helm testifies that he advised [them] that these medical decisions were not their responsibility, and he relayed the concerns to the Emergency Department Manager.
Believing nothing was being done to address their complaints, in February 2012 [Roberts and Wright] requested a meeting with Scott Watkins, Vice President of Operations. Before that meeting could occur, Helm found evidence of employees smoking in an elevator room which was a source of high voltage. He requested a camera to be placed in the room, and [Roberts and Wright] and other employees were observed smoking in
the elevator room throughout the day on March 3, 2012. Both [Roberts and Wright] were terminated on March 9, 2012 for their repeated and willful violation of the Tobacco-Free Environment Policy.
[Roberts and Wright] appealed their terminations via Norton's internal grievance process. They admitted they violated the policy but believed they should be given another chance. After the terminations were upheld, [Roberts and Wright] filed the present action, alleging for the first time their terminations were in retaliation for their complaints over lunch/meal breaks and the 72-hour holds.
After holding a hearing on the summary judgment motion, the Jefferson Circuit Court granted Norton's motion and dismissed the complaint with prejudice on February 15, 2018. The circuit court denied the later motion, filed by Roberts and Wright, to alter, amend, or vacate the judgment on June 20, 2018.
On appeal, Roberts and Wright argue that the circuit court's decision to grant Norton's motion for summary judgment was erroneous, insisting that they had established a prima facie case for retaliation and that they had proffered sufficient evidence of genuine issues of material fact that made it inappropriate to dismiss their claims. We disagree.
We begin by stating the standard of appellate review of the granting of summary judgment, namely:
The 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. 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., Ky., 807 S.W.2d 476, 480 (1991). Summary "judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances." Steelvest, 807 S.W.2d at 480, citing Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985). Consequently, summary judgment must be granted "[o]nly when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor [.]" Huddleston v. Hughes, Ky.App., 843 S.W.2d 901, 903 (1992).
Foster v. Jennie Stuart Medical Center, Inc., 435 S.W.3d 629, 633 (Ky. App. 2013).
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App. 2001).
With these principles in mind, we examine appellants' claim for retaliation. Kentucky Revised Statute (KRS) 216B.165, which imposes a duty for employees to report safety issues, also prohibits a health care facility from retaliating against an employee that does so:
No health care facility or service licensed under this chapter shall by policy, contract, procedure, or other formal or informal means subject to reprisal, or directly or indirectly use, or threaten to use, any authority or influence, in any manner whatsoever, which tends to discourage, restrain, suppress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any agent or employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the health care facility or service the circumstances or facts to form the basis of a report under subsections (1) or (2) of this section. No health care facility or service shall require any agent or employee to give notice prior to making a report, disclosure, or divulgence under subsections (1) or (2) of this section.KRS 216B.165(3).
To survive a defense motion for summary judgment, an employee claiming retaliatory action must present evidence of a prima facie case:
The plaintiff bears the initial burden of establishing a prima facie case of [retaliation]. Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 797 (Ky. 2004). A plaintiff may meet this burden by showing she (1) "engaged in a protected activity; (2) the defendant knew that the plaintiff had done so; (3) adverse employment action was taken; and (4) that there was a causal connection between the protected activity and adverse employment action." Colorama, Inc. v. Johnson, 295 S.W.3d 148, 152 (Ky. App. 2009).MacGlashan v. ABS Lincs KY, Inc., 84 F. Supp. 3d 595, 599 (W.D. Ky. 2015). In this instance, the circuit court held that, pursuant to Brooks, there was no question that termination was anything other than an adverse employment action. However, even if the first two requirements under Brooks were proven by Roberts and Wright, the substantiation produced to support the fourth factor (the "causal connection") was sorely lacking, even by circumstantial evidence.
In cases where there is no direct evidence of a causal connection, the causal connection of a prima facie case of retaliation must be established through circumstantial evidence. Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000). Circumstantial evidence of a causal connection is "evidence sufficient to raise the inference that [the] protected activity was the likely reason for the adverse action." Id. at 566. In most cases, this requires proof that (1) the decision maker responsible for making the adverse decision was aware of the protected activity at the time that the adverse decision was made, and (2) there is a close temporal relationship between the protected activity and the adverse action. See, e.g., Clark County School District v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509, 515 (2001).Brooks, 132 S.W.3d at 804. Therefore, because Roberts and Wright were unable to satisfy the elements of a prima facie case for retaliation, the circuit court properly granted the motion for summary judgment.
Moreover, both Roberts and Wright conceded that they had violated the personnel policy (that they were in fact employed to enforce) multiple times, as well as other infractions that had led to reprimands during their employment at Norton. Thus, even had they succeeded in establishing a prima facie case of retaliation, their own deposition testimony and employment records served as substantiation of a valid basis for their terminations by Norton. This issue was addressed in the circuit court's ruling on the motion to alter, amend, or vacate pursuant to CR 59.05. See Brooks, 132 S.W.3d at 797.
We next address the propriety of granting summary judgment on the wage and hour claims (see KRS 337.355 and 337.365) of Roberts and Wright. In that respect, the circuit court held that appellants had "provided no evidence to substantiate their claim" that Norton's timekeeping records were inaccurate. Thus, the circuit court continued, with nothing other than their claims of unpaid lunch or rest breaks, there was insufficient evidence to oppose Norton's claim for summary judgment on this issue, citing Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001). We find no error in this regard. Collins v. Appalachian Research and Defense Fund of Kentucky, Inc., 409 S.W.3d 365, 369 (Ky. App. 2012).
The judgment of the Jefferson Circuit Court is affirmed.
DIXON, JUDGE, CONCURS.
JONES, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANTS: David N. Ward
Theodore W. Walton
Louisville, Kentucky BRIEF FOR APPELLEE: Donna King Perry
Jeremy S. Rogers
Alina Klimkina
Louisville, Kentucky