Opinion
NO. 2016-CA-000319-MR
06-16-2017
BERNARD A. TURPIN APPELLANT v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLEE
BRIEF FOR APPELLANT: Edward E. Dove Lexington, Kentucky BRIEF FOR APPELLEE: Robert Roark Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 12-CI-02529 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: Bernard Turpin appeals the Fayette Circuit Court's February 18, 2016 summary judgment order in favor of Lexington-Fayette Urban County Government (LFUCG). Turpin sued LFUCG, his employer, for discrimination under the Kentucky Civil Rights Act. After review, summary judgment was properly granted.
There are conflicting first names used to refer to the Appellant in the record. We chose to use the first name used by the Appellant in his brief before the Court of Appeals.
Kentucky Revised Statutes (KRS) Chapter 344 et seq. --------
I. BACKGROUND
Turpin is an African American. He began working for LFUCG in 1998. Twelve years later, he was appointed to the position of Deputy Director in the Division of Facilities and Fleet Management. His appointment put him in charge of roughly 45 employees.
Following Turpin's appointment, his subordinates filed a series of complaints against him. The subject of their complaints ranged from Turpin's use of profanity in the workplace to his general conversation habits. In 2012, a formal petition was filed pursuant to LFUCG's anti-harassment policy which alleged Turpin had continued to use profanity at work and had threatened his subordinates' jobs. LFUCG's Human Resources Department investigated the petition and recommended disciplinary action upon finding Turpin had violated the policy. Turpin's supervisor, Jamshid Baradaran, eventually issued Turpin a written reprimand. Turpin appealed the disciplinary action to the LFUCG Civil Service Commission, which ultimately rescinded the reprimand.
Following the rescission, Turpin continued to serve in his same Deputy Director position. Turpin's subordinates also kept filing complaints. In addition to claims of verbal harassment, the subordinates complained that Turpin had retaliated against them for participating in the Commission proceedings.
Later in 2012, Turpin sued LFUCG for violations of KRS 344.040 and KRS 344.280. His retaliation claim alleged that the only reason LFUCG required him to respond to his subordinates' complaints was because he filed a complaint of his own regarding a picture of a black silhouette with a hole in it that said "not today." Three years passed, and LFUCG moved for summary judgment. The circuit court granted the motion after finding Turpin had failed to show he had suffered an adverse employment action. This appeal followed.
II. STANDARD OF REVIEW
Summary judgment is available to terminate litigation when "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." CR 56.03. Only if it appears impossible for the nonmoving party to produce evidence warranting judgment in his favor, shall summary judgment be granted. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). On appeal, we must resolve whether the trial court correctly determined there were no genuine factual issues and the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky.App. 1996). We therefore review the trial court's determinations under this standard de novo. Neighborhood Investments, LLC v. Kentucky Farm Bureau Mut. Ins. Co., 430 S.W.3d 248, 251 (Ky. App. 2014).
III. DISCUSSION
Turpin's appeal focuses on the circuit court's primary determination that Turpin suffered no adverse employment action. In challenging this determination, Turpin first claims he experienced an adverse employment action when LFUCG required him to respond to "bogus" complaints from his subordinates—complaints which according to Turpin, "could [have] result[ed] in termination." Turpin then supplements this claim with a secondary argument that LFUCG required him to respond to the "bogus" complaints as either a discriminatory pretext or in retaliation. Turpin further disputes the propriety of the reprimand. For the following reasons, the circuit court properly granted summary judgment.
Kentucky courts look to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), when evaluating race discrimination claims under KRS Chapter 344. Under the test outlined in that case, a plaintiff alleging racial discrimination must establish: (1) he was a member of a protected class; (2) he suffered an adverse employment action; (3) he was qualified for the particular position; and (4) a similarly-situated non-protected employee was treated more favorably. Murray v. Eastern Kentucky University, 328 S.W. 3d 679, 682 (Ky. App. 2009). With respect to the second element, the alleged adverse employment action must have materially altered the terms and conditions of the plaintiff's employment status. Perry v. AutoZoners, LLC, 948 F. Supp. 2d 778, 787 (W.D. Ky. 2013)(citing Hollins v. Atl. Co., Inc., 188 F.3d 652, 662 (6th Cir.1999)). This mirrors the requirement for a retaliation claim under KRS 344.280. See Brooks v. Lexington-Fayette Urban County Housing Authority, 132 S.W.3d 790, 802 (Ky. 2004)("plaintiff must identify a materially adverse change in the terms and conditions of his employment to state a claim for retaliation."). In other words, there must have been a "tangible employment action constitut[ing] a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
Here, LFUCG did not materially affect Turpin's employment status. Turpin has not shown any damage to his job or career trajectory following the Commission proceedings, nor has he shown how LFUCG altered his responsibilities as a supervisor by requiring him to respond to his subordinates' complaints. The rescinded reprimand did not cost Turpin a promotion, deny him a benefit, or cause him to lose his job; and Turpin's subordinates availed themselves of LFUCG's previously established anti-harassment policy to raise, in several instances, legitimate concerns. Without more, LFUCG's requirement for supervisors to respond to their subordinates' complaints operated as a minor inconvenience for Turpin at best. Therefore, the circuit court was correct to dismiss his discrimination and retaliation claims summarily.
The decision of the Fayette Circuit Court is hereby affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Edward E. Dove
Lexington, Kentucky BRIEF FOR APPELLEE: Robert Roark
Lexington, Kentucky