Opinion
NO. 2014-CA-001082-MR NO. 2014-CA-001129-MR
03-18-2016
CECIL TICHENOR APPELLANT v. BLUEGRASS COMMUNITY AND TECHNICAL COLLEGE; KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEMS; AND AUGUSTA A. JULIAN, in her Individual Capacity and her Official Capacity as President and CEO of Bluegrass Community and Technical College APPELLEES
BRIEF FOR APPELLANT: William C. Jacobs Lexington, KY Theodore Berry Lexington, KY BRIEF FOR APPELLEE: Stephen G. Amato Lexington, KY
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO SCORSONE, JUDGE
ACTION NO. 11-CI-06350 OPINION
AFFIRMING BEFORE: COMBS, DIXON, AND D. LAMBERT, JUDGES. D. LAMBERT, JUDGE: This is an appeal from a judgment of the Fayette Circuit Court dismissing Cecil Tichenor's employment discrimination suit against appellees Bluegrass Community and Technical College (BCTC), Kentucky Community and Technical College Systems (KCTCS), and Augusta A. Julian, President of BCTC. The circuit court entered a directed verdict in favor of appellees at the conclusion of Tichenor's proof at trial. After review, we affirm.
I. BACKGROUND
Tichenor, an African-American maintenance employee, began working for BCTC in 2009. His job consisted of opening the college, monitoring the school's mechanical systems, and addressing work orders from his direct supervisor, Michael Ball. Ball promoted Tichenor to Assistant Manager after competing with him for the supervisory role.
In 2011, Ball directed Tichenor via work order to drive four school vehicles to Tire Discounters for replacement tires. Ball had arranged for Tire Discounters to replace the used tires and had negotiated a fee for their proper disposal. This arrangement followed the expiration of several quotes Tichenor had obtained from other vendors.
After arriving at Tire Discounters with the first vehicle, Tichenor instructed Ben Sweger, a Tire Discounters employee, to leave the used tires in the vehicle after replacing them. When Tichenor returned to pick up the first vehicle, he noticed the used tires were not in the vehicle per his instruction. Tichenor told Sweger that if he could not comply with requests, Tire Discounters would not get any more business.
Without consulting Ball, Tichenor requested a quote from Goodyear, another vendor, to replace the tires on one of the four vehicles. After receiving a favorable quote compared to that of Tire Discounters, Tichenor drove the vehicle to Goodyear. Goodyear replaced the vehicle's tires and gave Tichenor the used ones.
When Tichenor returned to work from Goodyear, Ball informed him that Sweger had called from Tire Discounters to let him know that one of the vehicles never arrived for a tire replacement and to apologize if Tire Discounters service was unsatisfactory. Ball then ordered Tichenor to take the vehicle to Tire Discounters. At that time, Tichenor told Ball that he had already had the tires changed at Goodyear.
In light of these facts, BCTC sent Tichenor a certified letter of intent to terminate his employment. This letter outlined the reasons for his discharge and notified Tichenor that he had violated ethical and purchasing policies by improperly disposing of school property, interfering with a vendor agreement, and failing to follow Ball's instructions. BCTC provided Tichenor an opportunity to participate in a show cause hearing to plead his case. The hearing took place on February 28, 2011. Tichenor was terminated following that hearing.
Tichenor sued his former employer for employment discrimination under KRS Chapter 344, the Kentucky Civil Rights Act. Tichenor alleged that he was unlawfully terminated based on his race because a former white co-worker, David Branham, retained his job even though he engaged in similar conduct as Tichenor when tasked with replacing a car battery.
Kentucky Revised Statutes. --------
A jury trial was held on April 15, 2014. Tichenor called several witnesses on his behalf. After presenting his evidence, the appellees moved for a directed verdict. The circuit court granted their motion and stated that Tichenor's argument was an "apples-to-oranges" comparison and did not adequately establish a prima facie racial discrimination claim. Tichenor filed a motion to alter, amend or vacate the directed verdict, which the circuit court denied. This appeal followed.
II. STANDARD OF REVIEW
For a trial court to have properly entered a directed verdict there must have been either a complete absence of proof as to a material issue or no disputed issues of fact upon which reasonable minds could differ. Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky. 1998). When reviewing a trial court's entry of a directed verdict, an appellate court must first "admit[] the truth of all evidence which is favorable to the party against whom the motion is made." Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 215 (Ky. App. 2009). The appellate court then "must determine whether the evidence favorable to the party against whom the motion is made is of such substance that a verdict rendered thereon would be 'palpably or flagrantly' against the evidence so as 'to indicate that it was reached as a result of passion or prejudice.'" National Collegiate Athletic Ass'n By and Through Bellarmine College v. Hornung, 754 S.W.2d 855, 860 (Ky. 1988) (quoting Nugent v. Nugent's Ex'r., 281 Ky. 263, 135 S.W.2d 877 (1940)). If so, then the appellate court must affirm the trial court's entry of the directed verdict.
III. DISCUSSION
On appeal, Tichenor argues that the circuit court invaded the province of the jury and inappropriately decided several issues of fact. First, Tichenor claims that the jury should have decided whether his actions in obtaining tires were different from Branham's actions in obtaining the new battery. Furthermore, Tichenor contends that neither his title as assistant supervisor nor his decision to keep the used tires should be considered when comparing his actions to Branham's because he was not a true supervisor and the used tires were no longer school property. For the following reasons, the circuit court did not err.
KRS Chapter 344 prohibits an employer from discharging an employee because of his race. See KRS 344.040(1). In an action under this chapter, the plaintiff must initially establish a prima facie case of racial discrimination. Jefferson County v. Zaring, 91 S.W.3d 583, 590 (Ky. 2002). In the context of employment discrimination claims based on racial disparate impact, an employee plaintiff can establish a prima facie case by showing "(1) that he was a member of a protected class and (2) that for the same or similar conduct he was treated differently than [a] similarly-situated non-minority employee[]." Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). The employee plaintiff's conduct does not have to mirror that of the similarly situated non-minority employee with whom he compares himself. Instead, the conduct must only be similar in all relevant aspects. Johnson v. Kroger Co., 319 F.3d 858, 867 (6th Cir. 2003). "[T]he relevant factors for determining whether employees are similarly situated often include the employees' supervisors, the standards that the employees had to meet, and the employees' conduct." Id. However, as a general rule the employees had to be engaged in substantially similar conduct "without such differentiating or mitigating circumstances that would distinguish . . . the employer's treatment of them for it." Mitchell, 964 F.2d at 583.
If the plaintiff establishes a prima facie case, then the defendant bears the burden of articulating "some legitimate nondiscriminatory reason" for the disparate treatment. Zaring, 91 S.W.3d at 590 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct 1817, 1824, 36 L.Ed. 668 (1973)). If the defendant satisfies the second burden, the plaintiff then has the opportunity to show the defendant's offered reason was simply a discriminatory pretext. Id.
Here, Tichenor failed to meet his initial burden because he did not show that he was terminated for engaging in the same or similar conduct as Branham. Regardless of whether Tichenor was a supervisor or whether BCTC retained ownership of the used tires, Tichenor violated both a work order from his supervisor and an existing agreement between BCTC and Tire Discounters as a means to retain scrap property. This is different from the circumstances surrounding Branham's battery exchange because Branham was not under a contractual agreement to have the battery replaced by any particular vendor—he was free to choose the vendor. Therefore, the circuit court properly entered a directed verdict. The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: William C. Jacobs
Lexington, KY Theodore Berry
Lexington, KY BRIEF FOR APPELLEE: Stephen G. Amato
Lexington, KY