G. DENISE BROWN v. BROWN & WILLIAMSON TOBACCO CORPORATION; HENRY FRICK; and JOAN KILLEN
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RENDERED: JULY 27, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001564-MR
G. DENISE BROWN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 98-CI-007076
v.
BROWN & WILLIAMSON TOBACCO CORPORATION;
HENRY FRICK; and JOAN KILLEN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, and SCHRODER, Judges.
COMBS, JUDGE:
The appellant, G. Denise Brown (“Brown”), appeals
entry of summary judgment by the Jefferson Circuit Court in favor
of the appellees, who include Brown and Williamson Tobacco
Corporation (“B&W”), Henry Frick (“Frick”), and Joan Killen
(“Killen”).
Brown alleges that the appellees subjected her to
discriminatory harassment on the bases of race and sex, unlawful
retaliation, and constructive discharge.
After our review of the
record on appeal, we affirm.
Brown was employed as the Manager of Diversity and
Affirmative Action within the Human Resources department of B&W
from May 28, 1997, to July 2, 1998.
During her tenure, she
conducted diversity workshops, prepared affirmative action plans,
and acted as a consultant on equal employment opportunity
matters.
Brown reported directly to Frick, who was the Vice
President of Human Resources at B&W.
Killen had been employed as
Human Resources Director for American Tobacco Company until it
was acquired by B&W in 1994.
She was retained by B&W to assist
in transitional matters arising from the acquisition, and she
worked with Brown on a number of occasions.
On July 2, 1998,
Brown submitted a letter of resignation to B&W.
She had accepted
a job at Tricon Global Restaurants, Inc., in its Human Resources
department.
On December 17, 1998, Brown filed a complaint against
B&W, Frick, and Killen, alleging that during the course of her
employment, she had been subjected to gender and racial
discrimination and/or harassment, retaliation, and constructive
discharge, all in violation of the Kentucky Civil Rights Act
(“KCRA”), Kentucky Revised Statutes (“KRS”) 344.010, et seq..
She further alleged that this conduct made the defendants jointly
and severally liable for the torts of outrageous conduct and/or
intentional infliction of emotional distress under Kentucky
common law.
On April 13, 1999, all parties stipulated that the
discrimination and harassment claims against Frick and Killen
were precluded as a matter of law.
On April 20, 1999, the trial
court entered an order stating that Frick and Killen could not be
held liable in their individual capacities for retaliation under
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KRS 344.280.
The outrageous conduct and emotional distress
claims were dismissed by agreed order on December 23, 1999.
On
March 22, 2000, the trial court granted summary judgment for B&W
on all remaining claims.
Brown appeals from the summary judgment
disposing of all claims against B&W and from the summary judgment
dismissing the retaliation claims against Frick and Killen.
We begin our analysis by noting our standard of review:
On appeal, the standard of review of a
summary judgment is whether the trial court
correctly found that there was no genuine
issue as to any material fact and that the
moving party was entitled to judgment as a
matter of law.
Turner v. The Pendennis Club, Ky. App., 19 S.W.3d 117, 119
(2000).
Additionally, “[t]he 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 should only be used
“when, as a matter of law, it appears that it would be impossible
for the respondent to produce evidence at the trial warranting a
judgment in his favor and against the movant.”
Id. at 483,
citing Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255
(1985).
To overcome a motion for summary judgment in a
discrimination case, a plaintiff must produce “cold hard facts”
from which an inference of race or sex discrimination can be
drawn.
See Kentucky Center for the Arts v. Handley, Ky. App.,
827 S.W.2d 697, 700-01 (1991).
KRS 344.040 provides, in pertinent part, that:
It is an unlawful practice for an employer:
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(1) ... to discriminate against an individual
with respect to compensation, terms,
conditions, or privileges of employment,
because of the individual’s race ... [or] sex
...;
(2) To limit, segregate, or classify
employees in any way which would deprive or
tend to deprive an individual of employment
opportunities or otherwise adversely affect
status as an employee, because of the
individual’s race ... [or] sex....
The language of this statute generally mirrors the language of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq.; therefore, it “should be interpreted consonant with federal
interpretation.”
Meyers v. Chapman Printing Co., Inc., 840
S.W.2d 814, 821 (1992).
In her brief, Brown does not raise any arguments
concerning disparate discriminatory treatment on the part of B&W;
rather, she argues that she was the victim of racial and gender
harassment because of a “hostile work environment” at B&W.
In
granting summary judgment for B&W, the circuit court apparently
concluded that Brown failed to establish a prima facie case of
racial or gender harassment.
To establish a cause of action for
racial or gender harassment, a plaintiff must demonstrate
harassment so “severe or pervasive” as “‘to alter the conditions
of [the victim’s] employment and create an abusive working
environment.’”
Meyers, supra, at 821, quoting Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
Not only must the
conduct be extreme; it must also pass the test of objectivity:
Conduct that is not severe or pervasive
enough to create an objectively hostile or
abusive work environment--an environment that
a reasonable person would find hostile or
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abusive--is beyond Title VII’s [and the
KCRA’s] purview.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
(Emphasis added.)
Whether an environment is objectively hostile
or abusive:
... can be determined only by looking at all
the circumstances. These may include the
frequency of the discriminatory conduct; its
severity; whether it is physically
threatening or humiliating, or a mere
offensive utterance; and whether it
unreasonably interferes with an employee’s
work performance.
Id. at 23.
Yet another criterion is as follows:
[A]ll that the victim of racial [or gender]
harassment need show is that the alleged
conduct constituted an unreasonably abusive
or offensive work-related environment or
adversely affected the reasonable employee’s
ability to do his or her job.
Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988).
While it is clear from Brown’s testimony that she
subjectively perceived her work environment at B&W as hostile or
abusive, she has not demonstrated that a reasonable person would
or could reach the same conclusion after “looking at all the
circumstances.”
Brown puts particular emphasis on events that
took place during and following a diversity training session
which she conducted with Killen at a B&W plant in Macon,
Georgia.*
A member of the audience asked Killen whether it would
*
In Union Underwear Co., Inc. v. Barnhart, 1999-SC-0091-DG,
2001 Ky. LEXIS 82 (Apr. 26, 2001), the Kentucky Supreme Court
held that the KCRA does not have extraterritorial application.
We recognize that this recent decision may appear to be
implicated here since a number of the alleged incidents occurred
in other states. However, because our disposition of this case
(continued...)
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be acceptable to tell ethnic jokes with friends when he was not
at work.
According to Brown, Killen told the worker that it
would be “okay” to tell ethnic jokes under certain circumstances.
Brown disagreed with this statement and took the position that
the telling of ethnic jokes was never acceptable.
After the
session, Brown and Killen apparently engaged in a heated argument
about this incident.
Brown testified that Killen became very
angry and stated: “I have a lot of influence with Henry [Frick]
and I can make it very difficult for you to be successful in this
environment and I will do that.”
The day after the training
session concluded, Brown and Killen drove to Atlanta.
trip, the two apparently began arguing again.
During the
At one point,
Killen allegedly stated that, “I have a friend that allows me to
use the ‘N’ word.”
Brown took issue with this statement,
claiming that Killen then told her that she was “too black” and
that she could “never be successful at Brown and Williamson.”
This episode stands alone as the only evidence in this
case from which a reasonable person could draw any inference of
racial animus toward Brown.
Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998), provides the correct analysis of this
exchange: “‘simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of
employment.’”
(Internal citations omitted.)
Although she has
recited a number of perceived slights and abuses, the
*
(...continued)
turns on other issues, we will not address the possible academic
ramifications of Union Underwear.
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overwhelming majority of incidents which Brown feels to be
representative of a hostile environment cannot withstand the test
of a legal analysis of “hostile environment.”
She has not
demonstrated that these incidents were perpetuated on her because
of her status as an African-American female.
See Bowman v.
Shawnee State Univ., 220 F.3d 456, 464 (6th Cir. 2000).
When Brown first began working at B&W, she participated
in an annual compensation review at B&W’s plant in Hanmer,
Virginia.
During the review, a statistical analysis revealed
that the salaries of two African-American employees were slightly
below the median for their particular employment group when
compared to other B&W employees.
Brown stated in her brief that
“she believed there was a disparity of pay issue involving two
managerial level black employees that was unlawfully
discriminatory.”
Brown testified that after she made her belief
known to Michele Esselman (Compensation Manager for B&W),
Esselman made the following comment to Killen: “Who does she
think she is?
She’s been here two weeks and she’s making
recommendations on salary adjustments.
She must have a personal
agenda.”
Although Brown stated in her deposition that she
considered that statement to be a “racial comment,” the barebones content of the statement itself recites that it was made
because of Brown’s short tenure at B&W rather than as a result of
any racial or gender-based sentiment.
Indeed, other portions of
Brown’s testimony suggest that she did not consider the statement
to have been racially motivated when she first heard about it.
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Moreover, Brown’s testimony indicates that she actually did not
believe that the disparity in pay was “unlawfully discriminatory”
and that all involved parties had agreed to raise the salaries of
the two employees.
From Brown’s point of view, this incident -- and others
like it -- are indicative of a “hostile work environment” at B&W.
Her understandably subjective viewpoint, however, fails from a
legal perspective to demonstrate the objectively abusive
harassment necessary for a cause of action under Title VII and
the KCRA.
The cases cited by Brown as comparable to her
situation involve a heightened level of racial and/or gender
animus that is wholly lacking in the record before this court.
As an example, Brown cites Williams v. General Motors Corp., 187
F.3d 553 (6th Cir. 1999), as supportive of her contentions.
The
Bowman court, supra, analyzed the facts before it in terms of
Williams in a manner applicable to the present case:
... the conduct in this case is not nearly as
severe or pervasive as the harassment in
Williams or in other cases where the court
found that the conduct in question was not
severe or pervasive enough to constitute a
hostile environment.
Bowman, supra, at 464. (Emphasis added.)
In Williams, the
allegations included derogatory and profane remarks directed at
the plaintiff, offensive comments directed at women in general,
and the physical exclusion of the plaintiff from certain
workplace areas.
Williams, supra, at 559.
No similar behavior
can be found in this case.
Although it is apparent from the record that Brown had
serious personality conflicts with her co-workers at B&W,
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“[p]ersonal conflict does not equate with discriminatory animus.”
Morris v. Oldham County Fiscal Court, 201 F.3d 784, 791 (6th Cir.
2000), quoting Barnett v. Dep’t of Veterans Affairs, 153 F.3d
338, 342-43 (6th Cir. 1998).
Brown’s allegations -- while
undoubtably reflecting her own personal discomfort -- fail to
qualify as objectively hostile or abusive or to allow for an
inference of racial or gender animus.
Accordingly, we agree that
summary judgment was properly granted for B&W on the issue of
“hostile work environment.”
Brown also contends that the circuit court improperly
granted B&W summary judgment on her claim of retaliation.
344.280 provides, in pertinent part, as follows:
It shall be an unlawful practice for a
person, or for two (2) or more persons to
conspire:
(1) To retaliate or discriminate in any
manner against a person because he has
opposed a practice declared unlawful by this
chapter, or because he has made a charge,
filed a complaint, testified, assisted, or
participated in any manner in any
investigation, proceeding, or hearing under
this chapter; or
***
(3) To obstruct or prevent a person from
complying with the provisions of this chapter
or any order issued thereunder;
***
(5) To coerce, intimidate, threaten, or
interfere with any person in the exercise or
enjoyment of, or on account of his having
exercised or enjoyed, or on account of his
having aided or encouraged any other person
in the exercise or enjoyment of, any right
granted or protected by KRS 344.360, 344.367,
344.370, 344.380, or 344.680.
In making out a prima facie case of retaliation against an
employer, a plaintiff must show that:
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KRS
1) she engaged in a protected activity, 2)
she was disadvantaged by an act of her
employer, and 3) there was a causal
connection between the activity engaged in
and the employer’s act.
Handley, supra, at 701.
The record reveals that Brown did not experience an
adverse employment decision while she was employed by B&W.
She
was not fired, demoted, or transferred; she never suffered a
reduction in salary or in reduced job responsibilities.
On the
contrary, she actually received a merit pay increase during her
employment.
Although Brown proffers a number of incidents as
evidence of retaliation, none of them constitutes the
“significant change in employment status” that would suffice to
demonstrate an adverse employment decision.
See Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998)
In light of Burlington Industries, Inc. v. Ellerth,
supra, Faragher v. City of Boca Raton, supra, and Morris v.
Oldham County Fiscal Court, supra, we recognize that proof of
“severe or pervasive” retaliatory harassment may be used in lieu
of an adverse employment decision to support a claim of
retaliation.
See Morris, supra, at 792.
Even assuming for the
purposes of this appeal that Brown had objected to some type of
“unlawful practice” on the part of B&W, we cannot find that she
endured retaliation -- either by an employment decision or by
harassment -- because of her objection.
Accordingly, we cannot
find that the circuit court erred in granting B&W summary
judgment on Brown’s claim of retaliation.
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Brown also asserts that the circuit court incorrectly
determined that KRS 344.280 precludes individuals from being held
liable for retaliation.
We agree with her contention based upon
the clear language of the statute and the persuasive reasoning of
the Sixth Circuit Court of Appeals in Morris:
This section [KRS 344.280] does not “mirror”
42 U.S.C. § 2000e-3(a), the analogous
retaliation provision of Title VII, which
forbids retaliation by “an employer.”
Rather, § 344.280 forbids retaliation by “a
person.” The Kentucky retaliation statute
plainly permits the imposition of liability
on individuals.
Morris, supra, at 794. (Emphasis added.)
Although the circuit
court erred in reciting its reasoning for entry of summary
judgment in favor of Frick and Killen, we find such error
harmless since we must agree with the ultimate result.
The facts
of this case are not congruent with any claim that Frick or
Killen actually retaliated against Brown in a discriminatory
manner.
Indeed, had they done so, they would have been liable
personally.
The facts do not support that allegation.
Accordingly, any error by the circuit court was harmless.
In her last argument, Brown contends that the circuit
court improperly found as a matter of law that she was not
constructively discharged by B&W.
In cases involving constructive discharge,
the commonly accepted standard is whether,
based upon objective criteria, the conditions
created by the employer’s actions are so
intolerable that a reasonable person would
feel compelled to resign.
Turner, supra, at 121.
Based upon our previous determinations,
we hold that Brown has failed to state intolerable working
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conditions that would constitute a constructive discharge.
Thus,
we affirm the decision of the circuit court as to this issue as
well.
Based upon the foregoing reasons, we affirm the
decision of the Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE BROWN &
WILLIAMSON TOBACCO
CORPORATION:
David Leightty
Louisville, KY
James E. Milliman
Charles G. Middleton III
Henry S. Alford
Louisville, KY
Jennifer Jordan Hall
Louisville, KY
ORAL ARGUMENT FOR APPELLANT:
ORAL ARGUMENT FOR APPELLEE
BROWN & WILLIAMSON TOBACCO
CORPORATION:
David Leightty
Louisville, KY
James E. Milliman
Louisville, KY
BRIEF AND ORAL ARGUMENT FOR
APPELLEES HENRY FRICK AND JOAN
KILLEN:
Michael J. O’Connell
Louisville, KY
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