PAULA APONTE v. STOCK YARDS BANK & TRUST COMPANY
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RENDERED:
SEPTEMBER 9, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-001393-MR
PAULA APONTE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 02-CI-001279
STOCK YARDS BANK & TRUST
COMPANY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: GUIDUGLI AND MINTON, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
ROSENBLUM, SENIOR JUDGE:
Paula Aponte appeals from an opinion
and order of the Jefferson Circuit Court awarding summary
judgment to Stock Yards Bank and Trust Company (the Bank) in an
action brought by Aponte pursuant to KRS 2 Chapter 344, the
Kentucky Civil Rights Act.
1
Aponte contends that she was
Senior Judge Paul Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statute 21.580.
2
Kentucky Revised Statutes.
subjected to discriminatory conduct by the Bank based upon her
national origin.
Because Aponte has failed to establish a prima
facie case of national origin discrimination, and because the
circuit court did not abuse its discretion in denying Aponte’s
motion to compel the Bank to provide supplementary employee
compensation information, we affirm.
Aponte, who is Hispanic, was hired by the Bank in
October 1998 to fill its newly created position as Vice
President of Corporate Training.
Her duties included, among
other things, organizing training classes and preparing training
materials for Bank employees.
Greg Hoeck originally hired
Aponte and was her immediate supervisor during her tenure at the
bank.
David Heintzman is president of the Bank.
There were no events prior to August 2000 which gave
Aponte reason to be concerned about her status with the Bank.
However, in August 2000 Hoeck communicated to Aponte that
Heintzman was concerned about her commitment to the bank, with
her job performance, and with her attendance record.
Approximately one week later Aponte requested a meeting with
Hoeck to further discuss the matter.
At this meeting Aponte
defended her commitment to the Bank, her job performance, and
her attendance record.
According to Aponte, she questioned
Hoeck regarding whether the Bank’s concerns had anything to do
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with her gender, race or color, and Hoeck responded “That’s
typical of you people, always playing the race card.” 3
In January 2001 Aponte received the results of her
2000 year-end performance evaluation.
Her evaluation was
“partially-unfavorable,” and raised issues concerning Aponte’s
timeliness and responsiveness.
Aponte was also informed at this
time that she would not be receiving a year-end bonus.
As a
component of her disparate treatment allegation Aponte notes
that Graphic Design Department Head Dave Jordan did receive a
2000 year-end bonus even though he, too, had received a
partially unfavorable year-end evaluation.
In June 2001 Aponte had her mid-year performance
evaluation.
The evaluation again contained negative appraisals
of her performance.
Approximately three weeks later Aponte met
with Hoeck and Heintzman regarding her mid-year review.
Shortly
thereafter, Aponte was informed that she was being terminated.
On February 18, 2002, Aponte filed a Complaint in
Jefferson Circuit Court alleging that, in violation of KRS 344,
she had “been subjected to conduct of a discriminatory nature
based on her national origin,” and that the Bank “through its
agents or supervisors, engaged in a pattern and practice of
3
According to Hoeck, in response to Aponte’s question concerning whether her
treatment was based upon race he responded “this discussion is about your
performance. It’s not a race issue, don’t play the race card. Let’s talk
about your performance.” As summary judgment was awarded against Aponte, we
accept her version of the incident. Steelvest, Inc. v. Scansteel Service
Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
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unlawful discrimination based on national origin and singling
[Aponte] out and treating [her] less favorably on the basis of
[her] national origin[.]”
In its answer, the Bank asserted that
it lawfully discharged Aponte because, in the Bank’s judgment,
her performance and conduct warranted it; the Bank’s decision to
fire Aponte was lawful, reasonable and in good faith because it
is entitled by law to make that business decision; and because
Aponte’s injuries, if any, resulted from her own conduct because
that conduct resulted in her discharge.
Following the completion of discovery, on March 3,
2004, the Bank filed a motion for summary judgment.
On June 15,
2004, the circuit court entered an order granting the Bank’s
motion for summary judgment.
Aponte filed a motion to alter,
amend, or vacate pursuant to Kentucky Rules of Civil Procedure
(CR) 59, which was denied.
This appeal followed.
Summary judgment is only proper "where the movant
shows that the adverse party could not prevail under any
circumstances."
Steelvest, Inc. v. Scansteel Service Center,
Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citing Paintsville
Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985)).
The trial
court must view the record "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, 807 S.W.2d at 480
(citing Dossett v. New York Mining & Manufacturing Co., 451
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S.W.2d 843 (Ky. 1970)).
However, "a party opposing a properly
supported summary judgment motion cannot defeat that motion
without presenting at least some affirmative evidence
demonstrating that there is a genuine issue of material fact
requiring trial."
Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky.
1992)(citing Steelvest, supra at 480).
This Court has
previously stated that "[t]he standard of review on appeal of a
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.
There is no requirement that the appellate court defer to the
trial court since factual findings are not at issue" [citations
omitted].
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.
1996).
Aponte contends that the trial court erroneously
granted summary judgment to the Bank because there remain
genuine issues of material fact; because she established a prima
facie discrimination case by showing that similarly situated
employees were treated more favorably than she; because Hoeck’s
racial comment created a genuine issue of material fact as to
whether the reason for Aponte’s termination was motivated by
racial animus; and because her claim of disparate treatment
demonstrated the discriminatory motives of the Bank.
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Aponte contends that the Bank discriminated against
her in violation of KRS Chapter 344.
Because KRS Chapter 344 is
modeled upon Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000(e) et seq., Kentucky courts generally follow
federal law in interpreting Chapter 344.
Stewart v. University
of Louisville, 65 S.W.3d 536, 539 (Ky. App. 2001).
Chapter 344
and Title VII prohibit two forms of discrimination - disparate
impact and disparate treatment.
A plaintiff may establish a
prima facie case of discrimination through either direct
evidence of intentional discrimination, Terbovitz v. Fiscal
Court of Adair County, 825 F.2d 111, 114-15 (6th Cir. 1987), or
circumstantial evidence giving rise to an inference of
discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Direct evidence and the
McDonnell Douglas formula comprise “two different evidentiary
paths by which to resolve the ultimate issue of defendant's
discriminatory intent.”
Blalock v. Metals Trades, Inc., 775
F.2d 703, 707 (6th Cir. 1985).
Where a plaintiff presents
direct, credible evidence of discrimination, the McDonnell
Douglas formula is inapplicable because the “plaintiff no longer
needs the inference of discrimination that arises from the prima
facie case.”
Terbovitz, 825 F.2d at 115.
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Aponte has not presented direct evidence of national
origin discrimination. 4
The “race card” comment by Hoeck is not
direct evidence of discrimination, but, rather, circumstantial
evidence, as there are varying inferences which may be drawn
from the statement.
Because Aponte has not presented direct evidence of
discrimination, we must apply the familiar three-part formula
from McDonnell Douglas.
Under this formula the plaintiff
carries the initial burden of establishing a prima facie case of
discrimination.
McDonnell Douglas, 411 U.S. at 802.
The burden
then shifts to the defendant to rebut the presumption by
offering a legitimate, non-discriminatory reason for the adverse
employment action.
McDonnell Douglas, 411 U.S. at 802.
The
defendant need not persuade the court that it was “actually
motivated by the proffered reasons” but the “explanation
provided must be legally sufficient to justify a judgment for
the defendant.”
Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 254-255, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
To meet its burden, the defendant must clearly articulate,
through introduction of admissible evidence, the nondiscriminatory reasons for its employment decision.
Id.
The
plaintiff must then respond by demonstrating, by a preponderance
of the evidence, that the defendant's proffered reason for the
4
Aponte herself relies upon the McDonnell Douglas formula rather than allege
direct evidence of discrimination.
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employment action is a pretext for discrimination.
Douglas, 411 U.S. at 802-04.
McDonnell
A plaintiff can show that the
defendant's decision was pretextual by presenting sufficient
evidence that the proffered reasons (1) had no basis in fact,
(2) did not actually motivate the decision, or (3) were
insufficient to motivate the decision.
Manzer v. Diamond
Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994).
If
the plaintiff has made her prima facie case and presented
sufficient evidence for a reasonable jury to reject the
defendant's asserted justification for its actions, then the
case should be submitted to the factfinder “to determine whether
intentional discrimination has occurred.”
Manzer, 29 F.3d at
1083.
Turning to the first prong of the McDonnell Douglas
formula, in order to meet her burden of establishing a prima
facie case of discrimination the plaintiff must demonstrate (1)
that she is a member of a protected class; (2) that she suffered
an adverse employment action; (3) that she was qualified for the
relevant position; and (4) that she was replaced by someone
outside her protected class or was treated differently than
similarly situated individuals outside her protected class.
Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 538-39
(6th Cir. 2002).
The plaintiff's burden of establishing a prima
facie case is “not onerous” and is a “burden easily met.”
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Cline
v. Catholic Diocese of Toledo, 206 F.3d 651, 660 (6th Cir.
2000).
Once the plaintiff establishes a prima facie case by a
preponderance of the evidence, an inference of discrimination
arises.
Warfield v. Lebanon Corr. Inst., 181 F.3d 723, 728-29
(6th Cir. 1999).
As an Hispanic, Aponte is a member of a protected
class, and meets the first element of the McDonnel Douglas prima
facie case test.
KRS 344.040.
“An adverse employment action is a materially adverse
change in the terms or conditions of employment because of the
employer's conduct.”
Policastro, 297 F.3d at 539. “To be
materially adverse, a change in working conditions must be more
disruptive than a mere inconvenience or an alteration in job
responsibilities.”
Galabya v. New York City Bd. of Educ., 202
F.3d 636, 640 (2d Cir. 2000).
Examples of a materially adverse
employment decision include “a termination of employment, a
demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices unique to
a particular situation.”
Id.
“Reassignments without changes in
salary, benefits, title, or work hours usually do not constitute
adverse employment actions.”
Policastro, 297 F.3d at 539.
Because Aponte was terminated from her position with the Bank,
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she suffered an adverse employment action and fulfills the
second element of the McDonnel Douglas prima facie case test.
The third element of the prima facie case test
requires that the plaintiff demonstrate that she was qualified
for the relevant position.
The Bank does not challenge Aponte’s
qualifications for the position of Vice President of Corporate
Training, only certain aspects of her job performance and her
reaction to criticism of her performance.
The record reflects
that prior to her employment at the Bank Aponte was, among other
things, a training manager at Manufacturers Hanover Trust Bank
from 1982 to 1989; a training analyst at PNC Bank from 1991 to
1995; and Manager of Corporate Training at the Bank of
Louisville from 1995 to October 1998, when she was hired by the
Stock Yards Bank.
The record also demonstrates high praise by
Bank personnel for her performance during classroom training
sessions.
Aponte satisfies the qualification element of the
test.
To satisfy element four of the McDonnell Douglas prima
facie case test, Aponte must demonstrate that she was either
replaced by someone outside her protected class or was treated
differently than similarly situated individuals outside her
protected class.
It is undisputed that Aponte’s position was
not filled after her termination, and so she must rely on the
second alternative for satisfying this element, i.e., that she
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was treated differently than similarly situated individuals
outside her protected class.
In support of her position that she was treated
differently than similarly situated individuals outside of her
protected class Aponte cites to the situation involving David
Jordan, Vice President of the Bank’s Graphic Design Department. 5
In approximately May of 2000 Jordan was disciplined for misuse
of the Bank’s e-mail system.
Jordan was using the system for
personal e-mail, and was directed to refrain from using the
system for that purpose.
In the process of informing his e-mail
correspondents not to e-mail him at the bank, he sent an e-mail
to his wife.
He included an end-note to the message which
stated to the effect, “if you’re a SYB employee and are reading
this message, f*** you.”
Jordan was disciplined with a one-day
suspension from work and was made to apologize to the Bank
employee who had read the message.
Aponte alleges she was
treated differently from Jordan because Jordan was not
terminated and received a bonus for the year 2000, whereas she
did not receive a bonus and was terminated for her conduct.
To be considered similarly situated, a plaintiff “need
not demonstrate an exact correlation with the employee receiving
5
Aponte also claims that employees of the Bank did not socialize with her by
inviting her to lunch and to their homes. However, Aponte has not related
this lack of socializing to her national origin and, further, she has not
alleged hostile work-environment discrimination. We accordingly conclude
that this allegation is not relevant to the claims asserted in her complaint.
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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).
Both Aponte and Jordan are Vice Presidents and both
report to Hoeck; however, other than that, there situations are
not similar.
First, their respective job duties, job
descriptions, and job responsibilities are fundamentally
dissimilar.
Aponte is a corporate trainer and Jordan is a
graphic designer. Secondly, and more importantly, Aponte was
disciplined for conduct relating directly to her job
performance, including failure to meet deadlines; failure to
follow-up on phone calls and e-mails; failure to attend
meetings; failure to communicate with management; and failure to
fill training classes.
In addition, according to the Bank,
Aponte’s termination was also related to her reluctance to
accept criticism of her job performance and her deteriorating
work relationships.
On the other hand, Jordan’s conduct did not relate
directly to his job performance, but, rather, related to
inappropriate use of the Bank’s e-mail system and a crass
addendum to an e-mail which he knew may be read by a Bank
employee.
There is no evidence contained in the record that
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Jordan did not competently perform his graphic design duties. 6
Hence, we conclude that the Bank’s failure to terminate Jordan
or its award of a year 2000 bonus to him does not demonstrate
that she was treated differently than a similarly situated
individual.
Because of the dissimilarities in the relevant
conduct, the two were not similarly situated, and Aponte’s
contention that Jordan was similarly situated and/or received
more favorable treatment is not supported by the record.
There are no genuine issues of material fact
concerning whether Aponte has established a prima facie case of
discrimination under the McDonnel Douglas formula. 7
of law, she has not.
As a matter
Aponte has failed to demonstrate that any
similarly situated employee at the Bank who had engaged in
similar conduct was disciplined less severely than she was.
As
such, the circuit court properly granted summary judgment to the
6
While in her brief Aponte states that Jordan, too, was evaluated as having
failed to meet deadlines, she does not cite us to supporting evidence in the
record. Further, this issue was not raised in Jordan’s deposition, and we
are unable to find any evidence in the record corroborating Aponte’s
assertion. In any event, Aponte was evaluated for various other deficiencies
in her performance aside from failing to meet deadlines. So, even if Jordan
was evaluated negatively for failing to meet deadlines, he still would not be
similarly situated with Aponte.
7
We recognize that there are alternative approaches to establishing a prima
facie case of discrimination, see, e.g. Shah v. General Electric Company, 816
F.2d 264, 269 (1987)(A discharged plaintiff who was not replaced can
nonetheless establish a prima facie case by showing that the defendant
engaged in a pattern of discrimination which supports an inference that any
particular employment decision, during the period the discriminatory policy
was in force, was made pursuant to that policy). However, Aponte does not
allege that the Bank engaged in a pattern of discrimination, nor has Aponte
relied upon any approach other than the McDonnel Douglas prima facie case
test to establish her claim of disparate treatment.
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Bank.
Further, as Aponte has failed to satisfy the first
element of the McDonnel Douglas formula, we need not discuss the
remaining two elements, i.e., the evidence supporting (1) the
Bank’s nondiscriminatory justification for the discharge and (2)
whether the Bank’s nondiscriminatory justification was
pretextual. 8
Aponte also contends that the circuit court erred in
denying her motion to compel the Bank to respond to an
interrogatory concerning wage information relating to the Bank’s
various department heads.
Interrogatory No. 15 of Aponte’s June
12, 2003, discovery request stated as follows: 9
Please identify and disclose all persons
that were department heads of SYB during
Plaintiff’s employment at SYB, including,
but not limited to: Judy Wells, Sam Winkler,
James Hillebrand, Lynn Hillebrand, June
Meredit, Judy Sprowls, Karen Buler, Ann
Burt, Cathy Thompson and John Jenkins. For
those identified in [the] foregoing
question, provide the following information
for each of the years of their employment
with Defendant from 1998 – 2001:
1.
Job title and location of assignment
8
We note that if, arguendo, we had accepted that Aponte had established a
prima facie case, the Bank offered a nondiscriminatory reason for Aponte’s
discharge (i.e. poor job performance) and Aponte has failed to present
evidence sufficient to demonstrate that the Bank’s proffered reason for her
discharge was pretextual.
9
The discovery request is not located in proper sequence in the trial record
and we have been unable to locate the actual June 12 discovery request.
Neither party cites us to its location in the record (assuming it was even
filed therein). However, Aponte’s motion to compel and the Bank’s response
thereto are contained in the record, and there is no dispute that
Interrogatory No. 15 as set forth in Aponte’s brief correctly reflects the
interrogatory at issue.
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(bank or branch);
2.
All compensation for each year of their
employment;
3.
Job description; and
4.
Experience and qualifications for each
position each such employee held.
Aponte alleges that the information contained in the
interrogatory is relevant to the issues of disparate treatment
and disparate pay.
CR 26.02, Scope of discovery, provides, in relevant
part, as follows:
(1) In General. Parties may obtain
discovery regarding any matter, not
privileged, which is relevant to the subject
matter involved in the pending action,
whether it relates to the claim or defense
of the party seeking discovery or to the
claim or defense of any other party,
including the existence, description,
nature, custody, condition and location of
any books, documents, or other tangible
things and the identity and location of
persons having knowledge of any discoverable
matter. It is not ground for objection that
the information sought will be inadmissible
at the trial if the information sought
appears reasonably calculated to lead to the
discovery of admissible evidence.
It is well-settled that discovery rules are to be
liberally construed so as to provide both parties with relevant
information fundamental to proper litigation.
Hickman v.
Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).
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Generally, control of discovery is a matter of judicial
discretion.
Primm v. Isaac, 127 S.W.3d 630 (Ky. 2004). "The
test for abuse of discretion is whether the trial judge's
decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles."
The Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Aponte’s Application for Employment with the Bank
reflects that she listed $51,000.00 as her required salary.
her deposition, Aponte testified as follows:
Q.
What - - what was your salary? What
were your benefits? What were you
getting from them?
A.
My salary was [$]50,000 a year,
Insurance benefits. That was it.
Q.
Was there any discussion about raises
and how that would be handled?
A.
No.
Q.
Was there any discussion about bonuses?
A.
No.
Q.
Was there any discussion about leave
time?
A.
No.
Q.
Was there any discussion about
performance appraisal?
A.
No.
Q.
Was there anything about the setting of
or determining a salary that you deemed
inappropriate?
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In
A.
I don’t understand the question.
Q.
Were you happy with the salary?
A.
Yes.
Q.
Did you have any complaints about either
the salary itself or the process of
arriving at the salary?
A.
No.
In summary, based upon the foregoing, the record
discloses that Aponte, at the time of her hiring, received
substantially the salary that she requested.
In her deposition
she stated that she was happy with the salary she was offered by
the Bank.
Since the Bank paid her the salary Aponte requested
on her job application, it follows that any disparity in her
salary in comparison with the compensation paid to other
department heads (who may not in any event be similarly
situated) cannot rationally be linked to national origin
discrimination.
Aponte received the compensation she requested.
Aponte received substantially the salary she requested
and she had no objections as to how that salary was arrived at.
As such, the evidence sought by Aponte was not relevant to the
subject matter involved in the action, i.e., whether she
received disparate pay based upon her national origin.
Nor is the information relevant to her disparate
treatment claim in regard to her failure to receive a bonus for
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the year 2000.
While this interrogatory would disclose whether
an individual employee received a bonus, the information
requested would not shed light on whether the bonus had been
awarded to other employees despite conduct similar to that
engaged in by Aponte.
We moreover note that the recent salary
levels and years of experience for each vice president level
employee were provided in a separate interrogatory, and Aponte
does not suggest that this information provides any indication
of disparate pay in comparison with other personnel at the vice
presidential level.
Aponte also attempts to connect this information as
relevant to Hoeck’s “race card” comment and her associated claim
of disparate treatment.
However, again, we discern no relevance
to this aspect of her claim.
In light of the foregoing, the circuit court did not
abuse its discretion by denying her motion to compel the Bank to
respond to the interrogatory.
For the foregoing reasons the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Garry R. Adams
William R. Kenealy
Louisville, Kentucky
David A. Friedman
Louisville, Kentucky
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