Opinion
NO. 2014-CA-001297-MR
01-08-2016
DELORES THOMPSON APPELLANT v. NORTON HOSPITAL, INC. APPELLEE
BRIEF AND ORAL ARGUMENT FOR APPELLANT: Kurt A. Scharfenberger Louisville, Kentucky BRIEF FOR APPELLEE: Donna King Perry Jeremy S. Rogers Matthew Barszcz Louisville, Kentucky ORAL ARGUMENT FOR APPELLEE: Jeremy S. Rogers Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM JR., JUDGE
ACTION NO. 10-CI-002826 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING BEFORE: ACREE, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES. TAYLOR, JUDGE: Delores Thompson brings this appeal from a June 7, 2013, Opinion and Order of the Jefferson Circuit Court granting summary judgment to Norton Hospital Inc. (Norton) and dismissing Thompson's sexual harassment and retaliation claim. We affirm in part, reverse in part, and remand.
Thompson began working for Norton as a housekeeper in the Environmental Services Division in June 2000. The manager of this division at the time of her termination was Susan Sams. In 2008, Raul Ampuero was hired as a supervisor in that department. Thompson worked under Ampuero's direction until her employment was terminated in February 2010. Shortly after Thompson's termination, she filed a grievance with Norton requesting that the decision to terminate her employment be reversed. On March 5, 2010, an internal review team upheld the termination of Thompson's employment.
On April 23, 2010, Thompson filed a complaint in the Jefferson Circuit Court against, inter alios, Norton. Thompson alleged sexual harassment and retaliation under Kentucky Revised Statutes (KRS) Chapter 344 and also claimed public policy wrongful discharge and intentional infliction of emotional distress against Norton. Norton answered and filed a motion for partial dismissal arguing that the claims of public policy wrongful discharge and intentional infliction of emotional distress were preempted by the claims asserted under KRS Chapter 344. The circuit court treated the motion as a motion for summary judgment and dismissed Thompson's claims against Norton for wrongful discharge and intentional infliction of emotional distress. The parties subsequently conducted discovery whereupon Norton filed a motion for summary judgment on the remaining claims. By order entered June 7, 2013, the circuit court granted summary judgment in favor of Norton and dismissed Thompson's remaining claims of sexual harassment and retaliation. This appeal follows.
Delores Thompson also named Raul Ampuero as a defendant. However, Ampuero was dismissed as a party to the litigation by order entered in the Jefferson Circuit Court on July 14, 2014, and is not a party to this appeal.
The standard of review upon appeal of an order granting 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) (citing Kentucky Rules of Civil Procedure (CR) 56.03). And, it is imperative that the record is viewed in a light most favorable to the nonmoving party and that "all doubts are resolved in his favor." Steelvest, Inc. v. Scansteel Ser. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Thompson contends that the circuit court erred by granting summary judgment in favor of Norton on her claim of sexual harassment based upon hostile work environment. Specifically, Thompson asserts that the circuit court erred by determining that she failed to demonstrate a prima facie case of hostile work environment.
To prevail upon a sexual harassment claim based upon hostile work environment, plaintiff must demonstrate the following elements:
(1) [S]he was a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based upon sex; (4) the harassment unreasonably interfered with the plaintiff's work performance or created a hostile or offensive work environment that was severe and pervasive; and (5) the employer knew or should have known of the charged sexual harassment and failed unreasonably to take prompt and appropriate corrective action.Fenton v. HiSAN, Inc., 174 F.3d 827, 829-30 (6th Cir. 1999).
We believe Fenton v. HiSAN, Inc., 174 F.3d 827 (6th Cir.1999) properly sets forth the standard in Kentucky for sexual harassment based upon hostile work environment. See Ammerman v. Board of Educ. of Nicholas Cnty., 30 S.W.3d 793 (Ky. 2000).
In granting summary judgment in favor of Norton, the circuit court concluded that Thompson failed to satisfy the fourth element of her claim for sexual harassment based upon hostile work environment. Under the fourth element, the harassment must have unreasonably interfered with plaintiff's work performance or must have been "sufficiently severe or pervasive so as to alter the conditions of the plaintiff's employment and create an abusive working environment." Ammerman v. Board of Educ. of Nicholas Cnty., 30 S.W.3d 793, 798 (Ky. 2000). Additionally, the harassment must be continuous so as to be viewed as pervasive. Id. And, the conduct must create an objectively hostile or abusive work environment - that is, an environment that a reasonable person would find hostile or abusive. Harris v. Forklift Sys. Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).
The circuit court believed that Ampuero's harassment was merely sporadic and episodic but not sufficiently continuous to be deemed pervasive. Also, the circuit court did not believe that Ampuero's conduct created an objectively hostile or abusive work environment.
In her deposition, Thompson stated that Ampuero sexually harassed her "all the time." Thompson Deposition at 31. Thompson also recounted that she was required to phone Ampuero for assignment of hospital rooms to clean and that Ampuero would frequently make inappropriate sexual comments to her over the phone. These comments included Ampuero saying Thompson had a sexy voice, Ampuero asking Thompson out on a date, and Ampuero telling Thompson she had pretty eyes. Thompson also stated that Ampuero touched her buttocks on numerous occasions. Norton acknowledges in its brief that Thompson complained to Susan Sams about Ampuero on two occasions, July 2008 and December 2009.
Thompson also filed in the court record an affidavit after the taking of her deposition. In the affidavit, Thompson sets forth her sexual harassment allegations with more specificity. Therein, she alleged:
Delores Thompson's deposition was taken on August 30, 2010, and her affidavit was given on April 5, 2013.
We do not read the deposition and the affidavit as being in conflict; rather, the affidavit compliments the deposition, in that the affidavit gives more specific instances of alleged sexual harassment. --------
5. From the time I started working with Ampuero, the sexual harassment began almost immediately and continued on a constant and almost daily basis throughout the entire term of my employment. Ampuero constantly told me "I was sexy" . . . that he "wanted" me.
6. On one occasion, Ampuero propositioned me for sex and told me he would go "take me out to dinner" in exchange.
7. On another occasion, I was reaching up to grab something and Raul Ampuero came up behind me, and reached his hands around me and actually grabbed and squeezed my buttock. I couldn't believe he was putting his hands on me like that, and I jumped because I was shocked and I screamed at him "get off me."
10. I had my butt grabbed numerous times. Almost every time Raul Ampuero would walk by me, I feared that he would either grab or smack my butt. I cannot remember exactly how many times I had my butt grabbed (or was in fear of it being grabbed) because it happened so many times its hard to remember them all.Thompson's Affidavit at 2.
11. Every time I had my butt grabbed or groped, it was offensive and made me mad.
12. Because I was being sexually harassed on an almost daily basis, it affected my ability to concentrate and it made it harder for me to do my job.
Viewing the facts most favorable to Thompson, we think Thompson demonstrated a continuous pattern of harassment by Ampuero that created an objectively hostile and abusive work environment. Thompson presented facts that Ampuero's harassment was more than sporadic or episodic; rather, she presented sufficient proof that created an issue of fact for a jury to consider. We, thus, conclude that the circuit court erred by determining that Thompson failed to satisfy the fourth element of a hostile work environment claim as previously discussed. Accordingly, summary judgment was improperly granted in favor of Norton on Thompson's sexual harassment claim.
Thompson also contends that the circuit court erred by granting summary judgment in favor of Norton upon her claim of retaliation. In particular, Thompson claims that she is not required to demonstrate a prima facie case of retaliation to survive summary judgment. She specifically argues:
The issue on summary judgment is whether or not there is a genuine issue of fact, not whether [Thompson] has proven every element of her legal claim. While the four elements set forth in Brooks might be appropriate to include in the proposed instructions to be submitted to the jury, Thompson is not required to prove those elements to survive summary judgment.Thompson's Brief at 15.
In this case, Thompson offered no direct proof of retaliation; rather, Thompson sought to prove retaliation by circumstantial facts based upon the timing of her dismissal. To set forth a prima facie case of retaliation by circumstantial proof, Thompson must demonstrate four elements:
(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.Brooks v. Lexington-Fayette Urban Cnty. Hous. Auth., 132 S.W.3d 790, 803 (Ky. 2004) (citations omitted). And, the fourth element may be satisfied by demonstrating:
(1) [T]he decision maker responsible for making the discharge decision was aware of the protected activity at the time that the adverse decision was made, and (2) there was a close temporal relationship between the protected activity and the adverse action.Thompson's Brief at 15.
Again, Thompson argues that she must only present circumstantial facts to satisfy the fourth element to survive summary judgment. More specifically, Thompson maintains that she must only demonstrate Susan Sams, the manager of Norton's Environmental Service Division, was aware Thompson was engaged in a protected activity when Sams terminated her and that Thompson was terminated shortly after reporting Ampuero's harassment. Thompson cites Brooks, 132 S.W.3d 790, in reliance thereof. However, we disagree with Thompson's interpretation of Brooks. Brooks does not relieve Thompson of the burden to present a prima facie case of retaliation in order to survive summary judgment, which she failed to do below. Sams terminated Thompson after investigating an incident involving Thompson and other workers in February 2010 and she was ultimately terminated for admitting to inappropriate behavior towards these co-workers. Thompson has presented no facts to support that her termination was in retaliation for her sexual harassment claim. Consequently, we cannot conclude that the circuit court improperly rendered summary judgment dismissing Thompson's retaliation claim and thus affirm the same.
For the foregoing reasons, the Opinion and Order of the Jefferson Circuit Court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
ALL CONCUR. BRIEF AND ORAL ARGUMENT
FOR APPELLANT: Kurt A. Scharfenberger
Louisville, Kentucky BRIEF FOR APPELLEE: Donna King Perry
Jeremy S. Rogers
Matthew Barszcz
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLEE: Jeremy S. Rogers
Louisville, Kentucky