Opinion
No. 2007-CA-002583-MR.
January 9, 2009.
Appeal from Jefferson Circuit Court, Honorable Mary M. Shaw, Judge, Action No. 06-CI-009792.
Michael L. Boylan, Louisville, Kentucky, Brief for Appellants.
Byron E. Leet, C. Tyson Gorman, Patrick J. Martinez, Louisville, Kentucky, Brief for Appellee.
OPINION
Terrick D. White and Brenda Cooper appeal from an order of the Jefferson Circuit Court awarding summary judgment to Jefferson County Public Schools (JCPS) upon their claims alleging Civil Rights violations under Kentucky Revised Statutes (KRS) Chapter 344. They allege claims of disparate treatment in the course of their employment with, and discharge by, JCPS. For the reasons stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
White and Cooper are African-Americans who were hired as custodians by JCPS. White was hired on April 24, 2000, and Cooper was hired on January 7, 2000. As further discussed below, during their tenure with JCPS, White and Cooper each had significant disciplinary histories, followed by the culminating events of January 20, 2006, which resulted in the termination of their employment.
The principal attachment in support of JCPS's motion for summary judgment was the affidavit of Carolyn Meredith, Director of Employee Relations for JCPS. Attached as exhibits to her affidavit were disciplinary reports from the personnel files of White and Cooper, which are summarized below. WHITE
On July 17, 2002, White was written-up for using the telephone during work hours. On September 6, 2002, he was written-up for his attendance habits for his use of sick/personal/emergency days. On September 30, 2002, he received an oral warning for failure to properly clean his assigned areas. On October 9, 2002, he received an oral warning for failure to present a physician's note following a sick day. On November 15, 2002, White received an oral warning for reporting that he planned not to report to work because of car trouble, and then declining an offer of transportation to work. On January 24, 2003, he received a written warning for failure to properly clean his assigned area. On September 7, 2004, he received an oral warning for taking an excessively long scheduled break and lunch break. On September 23, 2004, he received a written warning for failure to be punctual to work and return from breaks in a timely manner.
On February 8, 2005, White received a written reprimand which stated as follows:
On February 1, 2005, the day lead custodian observed you leaving Rm. 323 to empty trash. This room is not on your run. Therefore you were engaged in team cleaning. When questioned about team cleaning by the lead custodians you did not deny it. When your attention was called to the memo circulated on 1/26/05 prohibiting team cleaning, you replied it meant nothing to you. This was discussed with you in a due process meeting held on 2/4/05 with your union representative present. In that meeting you again indicated your indifference to this administrative directive. You also failed to meet with the building principal on 2/2/05 as she requested. You are being reprimanded for this behavior.
On December 6, 2005, White received a 5-day suspension because he had "consistently neglected his cleaning duties." On February 6, 2006, White was terminated in connection with the January 20, 2006, culminating events. The reason for discharge was stated as follows:
During the course of an official board of education investigation [of the January 20, 2006, events], you made false statements to the investigator. In addition to lying to the investigator, you also received an unsatisfactory job performance evaluation on January 30, 2006. As these events took place while you were on disciplinary probation, it is recommended that you be discharged from your position of employment.
White pursued a grievance of the disciplinary actions taken against him as provided in his union contract, and all disciplinary actions, including his discharge, were upheld.
COOPER
Cooper's disciplinary record is not as extensive as White's. However, on July 18, 2000, Cooper was "written up" for calling in late on three occasions. On March 15, 2001, Cooper received an oral warning for being late on eight occasions. On February 28, 2004, she received a written warning for excessive reporting late to work. And on September 23, 2004, Cooper received a written warning for failure to be punctual to work, and for failure to return from breaks in a timely manner. She too was terminated following the January 20, 2006, culminating events.
JANUARY 20, 2006, EVENTS
In connection with the events of January 20, 2006, the JCPS referred the matter to the Security Investigations Unit. On January 27, 2006, Investigator Steve Cheatham submitted a Confidential Report on the matter. The complaining teacher's name is redacted from the copy of the report contained in the record (which is an exhibit to the Meredith affidavit), and we thus refer to her as "Complainant." Cheatham's report stated, in relevant part, as follows:
Allegations
On January 23, 2006, Complainant, Manual HS teacher, submitted a letter to Manual HS Principal Dr. Beverly Keepers alleging inappropriate behavior on the part of
custodian Brenda Cooper. Complainant advised Brenda Cooper initiated unwanted physical contact with her and made a comment about Complainant using her breasts to influence another custodian for special treatment.
Findings
Complainant Interview:
I met with Complainant, Manual HS teacher, on January 24, 2006. Complainant stated she was in the school after dismissal as a part of her duties as the Step Team sponsor. She came out of the main office around 3:45 pm and as she passed custodian Brenda Cooper in the hallway, Cooper stopped her by grabbing her by both shoulders. Cooper got close to her and said, "I know you flaunt your titties at Ed to get whatever you want" and then made some comment about the Step Team. Complainant attempted to pull away and denied Cooper's allegation. At this point, Cooper tightened her grip on Complainant's shoulders, moved her face into closer proximity to Complainant and said, "yes you do." Complainant then jerked away from Cooper's grasp and walked away. Complainant advised custodian Terrick White was present during the incident but did not participate in the conversation. He only stood there laughing.
Terrick White Interview:
On January 26, 2006, I met with Terrick White, Manual HS custodian, to question him about the January 20th conversation between Brenda Cooper and Complainant. The interview began at 3:55 pm and Mike Moses, SEIU representative, was also present. White advised he and Cooper were in the main hall as Complainant came down the center stairway. Cooper said to Complainant that she wanted to talk to her for a moment. White stated Cooper did not grab Complainant nor was there any physical contact at all. I asked him if she had perhaps reached out
to touch Complainant to get her attention but White again specifically stated Cooper did not touch Complainant in any manner. White said he continued to walk by but was standing about five (5) feet away as Cooper and Complainant spoke. He heard Brenda say something to Complainant about keeping the Step Team out of the hallway so they would not get into trouble. He did not hear all of the conversation, so there may have been statements made which he was not aware. He specifically denied hearing any comment made by Cooper about Complainant using her body to get special treatment.
White became agitated about the repeated questioning and was adamant about not knowing any more that what he had already stated. I also asked Terrick if he and Brenda had discussed the incident or if he gave her prior knowledge of my intention to be at the school for this investigation. Terrick had become aware of the investigation through a conversation about the January 20th incident with Complainant. He also stated he did not give Brenda prior knowledge of these interviews or discuss the investigation in any way. The interview concluded at 4:10 pm and Terrick submitted a written statement.
Brenda Cooper Interview:
Ms. Brenda Cooper, Manual HS custodian, was interviewed on January 26, 2006, immediately after White's interview concluded. The interview began at 4:25 pm and Mr. Moses, SEIU representative, was present. Ms. Cooper confirmed she did approach Complainant about the Step Team on January 20, 2006. Cooper wanted to advise Complaint `Ed' and `Paul' (custodians at Manual) were trying to get the Step Team in trouble for conduct which they were not involved [in]. Cooper advised she stated to Complainant "It doesn't matter how much you flaunt your boobies in front of Ed, he will still get you in trouble. Like you said you use them to get what you want."
Cooper stated she was referring to a conversation with Complainant that occurred two or three months ago. Complainant thought John was not treating her well. Cooper replied Ed treated her nice because she has large breasts. Allegedly Complainant laughed at this statement and she said she used them all her life to get what she wanted. Cooper said she did not intend to insult Complainant but was only making a joke related to the previous conversation. Cooper admitted that she did reach out and touch Complainant on the shoulder before she began talking to her. I asked if she might have grabbed Complainant by the shoulders. She replied maybe and that she just wanted to tell what happened because she did not mean to insult or upset Complainant. As Complainant walked away she said, "No I don't" referring to the comment about using her breasts for special treatment. After Complainant walked away, Cooper asked Terrick if he thought Complainant had taken her comments the wrong way. White replied he didn't think so. Indicating White had overheard all of the conversation. Cooper said White was laughing about the conversation between her and Complainant.
Cooper advised she provided White a ride to work on the date of these interviews. She confirmed she and White had discussed the investigation prior to the interviews. White advised her an investigator would be at Manual to speak with them about an investigation of Cooper. As they drove to work they discussed what the investigation could be about. Both agreed it would not have been about incident with Complainant on January 20th . They both felt that was over with. The interview concluded at 4:50 pm and Brenda submitted a brief written statement.
OTHER INCIDENTS IN REPORT
The Cheatham Report recounted two other incidents, involving Cooper.
The first incident involved a teacher who had lost her bicycle light. She asked several custodians if they had come across it. Then
[o]ne day she came into her room to find the light on her desk and a note from Brenda Cooper saying she found the light and resented being accused of taking it. [The teacher] said she had not been accusatory as she asked around about the light. She had only hoped it had been found during cleaning and someone may have thought it had been discarded. She doesn't recall speaking to Cooper about the missing light so she didn't understand how Cooper would have thought she was being accused of taking the light.
The second incident involved a teacher who complained about how her room was being cleaned. One day Cooper and White came into the room and Cooper asked the teacher how she liked the mopped floors. The teacher replied that she could not tell that the floor had been mopped. Cooper then replied that mopping the floor was not their job and they had too much to do.
CHEATHAM'S CONCLUSIONS
Cheatham summarized the conclusions of his report as follows:
CONCLUSION
I find the allegation of misconduct on the part of custodian Brenda Cooper is substantiated. This conclusion is based on the following:
• [The Complainant's] allegation and version indicates inappropriate comments were made by Brenda Cooper and that Cooper subjected her to unwanted physical contact.
• Brenda Cooper's admission she did in fact make a statement referring to [Complainant's] breasts and her using them to obtain special treatment.
• Brenda Cooper's admission of physical contact with the Complainant and that it was initiated by Cooper. She admitted it [sic] "maybe" the contact was similar to that described by the Complainant.
• Brenda Cooper exhibits the propensity to be confrontational with teaching staff. This is substantiated by the note left for [the teacher] in November 2005 and by her admission about questioning [the second teacher] on her satisfaction with the mopping of the classroom floor. Cooper has no authority to confront or question staff about their opinion of cleanliness. This is magnified by the fact that the room in question is in Tarrick [sic] White's assigned area not Ms. Cooper's.
• Each staff person mentioned in this investigation all have interpreted Cooper's conduct and demeanor as intimidating and or threatening. None of the three believed Cooper's approach was out of genuine concern or indicated well meaning.
As an additional note, this investigator finds that custodian Tarrick [sic] White intentionally lied when questioned in regards to this investigation. This is supported by the following:
• Even though White admittedly was only five (5) feet away when Brenda Cooper approached Complainant he denied there was any physical contact when the incident began. This physical contact was described in detail by Complainant and admitted to by Breda. It is not plausible White heard the beginning of the conversation, stood only five feet away, but did not observe any physical contact.
• White denied Cooper made any comment about Complainant using her body for special treatment. This comment was confirmed through the interview with Complainant and by Cooper's own admission. Both Cooper and Complainant indicated Tarrick [sic] was laughing when the statement was made.
• White stated he and Cooper had not spoken about the incident at all. Brenda Cooper openly stated she and Tarrick [sic] discussed it immediately following the conversation between Cooper and Complainant. She also said it was brought up as they came into work on the date of their interviews.
• White, who became aware of the investigation prior to January 26, stated he had not informed Brenda Cooper of their scheduled interviews nor had they discussed any pending investigation of Cooper. Brenda Cooper confirmed that as they drove to work on the 26th, Tarrick informed her of the interviews and that she was being investigated. They also discussed what the investigation would be in reference to. The investigation with Complainant was discussed as a possibility.
SUMMARY
In summary, against the foregoing backdrop of disciplinary problems and the events of January 20, 2006, White and Cooper were discharged from their positions as custodians at JCPS. Further, the incidents and conduct described would entirely support the termination of their employment. As previously noted, White pursued a grievance of the disciplinary actions taken against him as provided in his union contract, and all disciplinary actions, including his discharge, were upheld. It appears Cooper did not pursue a grievance action.
This case is not about, however, whether the above events occurred exactly as described in the disciplinary reports and the Cheatham Report; rather, it is about whether white employees, who committed similar infractions, were treated in a like manner.
TRIAL PROCEEDINGS
On November 2, 2006, White and Cooper filed a Complaint in Jefferson Circuit Court alleging violations of the Kentucky Civil Rights Act. More specifically, they alleged a claim based upon disparate treatment on the basis that they had been treated less favorably than similarly situated white employees. In due course JCPS filed a motion for summary judgment. On November 21, 2007, the circuit court entered an order granting the motion. This appeal followed.
STANDARD OF REVIEW
The standard of review on appeal when a trial court grants a motion for 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); Kentucky Rules of Civil Procedure (CR) 56.03. "The trial court must view the evidence in the light most favorable to the nonmoving party, and 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." Lewis v. B R Corp., 56 S.W.3d 432, 436 (Ky.App. 2001), citing Steelvest v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480-82 (Ky. 1991).
"The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present `at least some affirmative evidence showing that there is a genuine issue of material fact for trial.'" Lewis, 56 S.W.3d at 436, citing Steelvest, 807 S.W.2d at 482. The trial court "must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists." Steelvest, 807 S.W.2d at 480. The Kentucky Supreme Court has held that the word "impossible," as set forth in the standard for summary judgment, is meant to be "used in a practical sense, not in an absolute sense." Lewis, 56 S.W.3d at 436. "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." Id. at 436.
DISCUSSION
Pursuant to KRS 344.040(1), it is unlawful for an employer to discriminate against an individual because of, among other things, race. "The Kentucky Civil Rights Act (KCRA) was enacted in 1966 to implement in Kentucky the Federal Civil Rights Act of 1964." Jefferson County v. Zaring, 91 S.W.3d 583, 586 (Ky. 2002). "The provisions of the KCRA are virtually identical to those of the Federal act." Id. Because the Kentucky statute is modeled after the federal statute, "we must consider the way the Federal act has been interpreted." Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226, 229 (Ky. 1984).
The allocation of the burdens and the order of proof in discrimination cases has been set forth by the U.S. Supreme Court as follows: First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 253.
While the burden of persuasion remains at all times on the plaintiff, the burden that shifts to the defendant is to rebut the presumption of discrimination created by the plaintiff's prima facie showing. See Burdine, 450 U.S. at 255. The Burdine court went on to say that the "defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiffs." Id. (Citation omitted.) If the employer meets its burden of production, the burden-shifting framework is no longer relevant, as the presumption created by the prima facie case has been rebutted and the burden once again falls on the plaintiff to establish evidence of discrimination. See Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 797 (Ky. 2004).
In conjunction with this framework, a plaintiff bears the initial burden of establishing a prima facie case of racial discrimination due to disparate treatment pursuant to KRS 344.040. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. at 1817, 1824, 36 L.Ed.2d 668 (1973); Brooks v. Lexington-Fayette Urban County Housing Authority, 132 S.W.3d 790, 797 (Ky. 2004); Jefferson County v. Zaring, 91 S.W.3d 583, 590 (Ky. 2002). To do so, he must satisfy a four-prong test first set forth by the United States Supreme Court in McDonnell Douglas by showing that (1) he is a member of a protected group; (2) he was subjected to an adverse employment decision; (3) he was qualified for the position; and (4) he was replaced by a person outside the protected class, or similarly situated non-protected employees were treated more favorably." Peltier v. U.S., 388 F.3d 984, 987 (6th Cir. 2004).
The parties do not dispute that the appellees satisfy prongs (1) through (3) of the test, which leaves only prong (4) in issue. Moreover, as White and Cooper were both replaced by African-Americans, the only question remaining for our consideration is whether similarly situated white employees were treated more favorably than her. Such a comparison can be made only if the white employees that they have identified are "similarly situated in all respects" to her. Gragg v. Somerset Tech. College, 373 F.3d 763, 768 (6th Cir. 2004); Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). To be considered similarly situated, a plaintiff "need not demonstrate an exact correlation with the employee receiving more favorable treatment in order for the two to be considered `similarly-situated'" but rather must show that the plaintiff and the comparable person are similar "in `all of the relevant aspects.'" Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).
In order to prevail against a properly supported motion for summary judgment in a discrimination case, it is incumbent upon the plaintiff to identify "cold hard facts" from which an inference of race discrimination can be drawn. See Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 700 (Ky.App. 1991). "While intentional discrimination may be inferred from circumstantial evidence, there must be cold hard facts presented from which the inference can be drawn that race or sex was a determining factor." Id. at 700-01; see also Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226, 229 (Ky. 1984).
The gravamen of the appellants' claim is that similarly situated white employees were treated better than they were. In opposition to JCPS's motion for summary judgment, Cooper filed an affidavit in which she generally stated "[i]n those past incidents, Affiant was treated differently than were white individuals." Similarly, White stated in his affidavit that "Affiant was allegedly terminated for prior work performance while his work was superior to that of white individual[s], John Hanes and Paul (last name unknown)."
It is self-evident that the affidavits provided by the appellees do not provide the "cold hard facts" necessary to create an inference that they were treated differently than similarly situated white employees. Rather, they merely make conclusory assertions of disparate treatment. They present no evidentiary support to establish that similarly situated white employees (employees who committed similar disciplinary infractions) were treated differently. Simply put, no white employee who committed infractions similar to those related to the January 20, 2006, incident (physically accosting a teacher and making sexual comments in the case of Cooper, and lying to investigators in the case of White) is identified, and if there are any, the disciplinary measures meted out are not described. Nor are the employment records of those employees, if any, contained in the record from which a comparison may be drawn.
In summary, the appellees have failed to carry their burden of establishing a prima facie case of disparate treatment based on race under the Kentucky Civil Rights Act. As such, the trial court properly granted summary judgment.
CONCLUSION
For the foregoing reasons the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR.