KENT (MICHELLE) VS. FISH AND WILDLIFE
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RENDERED: NOVEMBER 25, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001975-MR
MICHELLE KENT
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 05-CI-00743
COMMONWEALTH OF KENTUCKY,
FISH AND WILDLIFE
APPELLEE
OPINION AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.
WINE, JUDGE: Michelle Kent (“Kent”) appeals from a summary judgment of the
Franklin Circuit Court finding that the Commonwealth of Kentucky
(“Commonwealth”) was not liable to her as a matter of law for violation of
Kentucky Revised Statute(s) (“KRS”) 344.280. Kent alleges that there were
material issues of fact as to whether her employer, the Kentucky Department of
Fish and Wildlife Resources (“the Department”), retaliated against her in violation
of the Kentucky Civil Rights Act. Upon review, we affirm in part and reverse in
part.
Background
Kent began her employment with the Commonwealth of Kentucky in
1989. In 1998, she transferred to the Kentucky Department of Fish and Wildlife
Resources. The allegations giving rise to this action arose in 2003, during Kent’s
fifth year with the Department, when she was acting as Personnel Administrator
for the Department.
Kent was continually promoted during the years prior to 2003, and
consistently received high employee performance reviews. In July of 2003, Kent’s
supervisor, Bob Bates (“Bates”), was the Division Director of Administrative
Services. Bates indicated to Kent that he would be taking the position of Deputy
Commissioner and discussed with Kent the possibility that she might replace him
as Division Director. However, when later offered the position, Kent declined it –
citing concerns about the level of responsibility the job entailed as well as its “nonmerit” status.
Sherry Kefauver (“Kefauver”) was thereafter named Division
Director. Kent alleges that she spoke with Bates again on July 14, 2003, and
indicated that she was interested in Kefauver’s former position of Assistant
Director. Kent alleges that Bates discussed “detailing” her into the position.
“Detailing” is apparently a process whereby an employee who does not yet have
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the qualifications for a position may be temporarily placed in a position until such
time as he or she has the necessary qualifications. However, a person may only be
detailed in a job for twelve months. Kent indicated to Bates that she did not want
to be detailed immediately, but wanted to delay detailing into the position for
several months until she was eligible to buy five years of retirement at a lower
cost.1 Kent alleges that Bates told her they could “hold off” a few months before
detailing her into the position. Bates also allegedly suggested that Kent speak with
Kefauver about her interest in the position. Kent contends that she discussed the
timing issue with Kefauver, who did not think it would be a problem to wait before
detailing her.
On September 2, 2003, Kent again discussed taking the position with
Bates. Kent allegedly expressed misgivings at that time about taking the job.
Bates then informed Kent that she was not the only one being considered for the
position. He indicated that a candidate by the name of Jim Goodman
(“Goodman”) was also being considered for the job.
On September 8, 2003, Kent again spoke with Kefauver about the
position. During this meeting, Kefauver told Kent that a Division Supervisor, Jeff
Kays (“Kays”), had reported that Kent was having an extra-marital affair with
another coworker in the Department. Kent was upset and met with Bates on the
following day to discuss Kays’ comment. Bates began investigating the complaint,
1
According to Kent, fifteen years of service was necessary to “buy” retirement time at a lower
cost. Kent was a few months away from being employed by the Commonwealth for fifteen
years.
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which was then turned over to the Department attorney, Ellen Benzing
(“Benzing”).
On September 19, 2003, Bates informed Kent that he had contacted
the Personnel Cabinet about placing her in the Assistant Director position and
found out that she lacked the managerial experience required to qualify for the
position. Kent alleges that Bates told her that he was “sorry” and that he “had
always taken care of her and still would.” Kent avers, however, that there was
never a problem with her waiting to be “detailed” into the position before she made
the complaint about Kays.
On September 26, 2003, Benzing held a meeting with Kent to discuss
the memorandum Benzing was preparing in response to Kent’s complaint. The
memorandum contained the details of Benzing’s investigation as well as her initial
findings. Kent was unhappy with Benzing’s initial findings and demanded further
inquiry into prior complaints that had been made against Kays by other women in
the Department.
In October of 2003, the position of Assistant Director (the position
Kent had sought) was filled by Regina Penn (“Penn”). Penn became Kent’s new
supervisor. On October 28, 2003, the Department formally responded to Kent’s
complaint by written letter. The Department found that Kays’ conduct did not rise
to the level of harassment or misconduct. However, the Commissioner of the
Department, Tom Bennett, informed Kent that Kays had been verbally
reprimanded and ordered to review the Department’s harassment policy. Kays also
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apologized to Kent, although it is disputed whether he was told to do so by
superiors or did so of his own accord.
Kent disagreed with the Department’s findings and thereafter retained
private counsel. On November 20, 2003, Kent’s counsel sent a letter to
Commissioner Bennett questioning the conclusions reached by the Department in
its investigation. The correspondence by Kent’s counsel alleged that the
Department failed to adequately investigate Kays’ pattern of improper conduct,
among other things. Penn, the new Assistant Director, responded to this letter on
December 1, 2003, noting that the Department had already investigated the
allegations against Kays and determined them to be without merit. Kent appealed
Penn’s decision.
Kent, accompanied by counsel, met with the Department’s Deputy
Commissioner and an Assistant Attorney General on December 18, 2003. In that
meeting, Kent alleged that the Department failed to investigate her complaint or
Kays’ pattern of improper behavior towards women. She further contended that
the Department engaged in “illegal hiring and promotion practices” including the
“pre-selection of employees,” as well as “illegal time-keeping procedures.” The
Deputy Commissioner made written findings on January 15, 2004, finding each of
Kent’s contentions to be without merit.
In early 2004, there was a change of administration at the Commerce
Cabinet (hereinafter the “Cabinet”)2. Although two investigations had already
2
The Commerce Cabinet oversees the Department of Fish and Wildlife Resources.
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been conducted, Kent reiterated her complaints to the new Executive Director of
the Cabinet, Bob Wilson (“Wilson”). In March of 2004, Kent noticed that Bates
and an individual from information technology were granted permission to allow
remote access to her computer. Upon inquiring, she learned that the permissions
had been programmed while she was out of the office on leave. Further, upon
asking several fellow employees whether their computers had “permissions” on
them, they reported that they did not.
In April of 2004, Kent’s office was moved from the “Game Farm”
(where she had always worked while employed by the Department) to the
Cabinet’s offices in the “Office Tower.” Kent alleges that she was unable to
perform the material duties of her position while working from the Tower because
she did not have ready access to personnel files there. While Kent was working
from the Tower, the Cabinet continued to investigate her allegations, which now
included allegations concerning her latest performance reviews as well as
allegations that her computer e-mail was capable of being remotely accessed by
anyone without a password. She also alleged that during this time a file
disappeared from her computer.
Upon completion of the new investigation, the Cabinet found Kent’s
allegations to be without merit. It found that other people in the Department had
similar problems with their e-mail (which were immediately corrected once
discovered), and that her other allegations did not rise to the level of harassment or
retaliation. Kent continued to have conflicts with her immediate supervisor, Penn.
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Wilson spoke with her about an opportunity to work in the Personnel Department
for the Parks Department without a change in pay; however, Kent was not
interested. Thereafter, for reasons that are unclear from the record, she was moved
from the “Office Tower” back to the “Game Farm.”
Unsatisfied with Wilson’s attempts to resolve her ongoing concerns,
Kent filed yet another formal grievance. This grievance was directed against the
entire chain of command in the Department. Kent again alleged retaliation as a
result of her September 2003 grievance over Kays’ comment. In addition, she
alleged that expectations concerning her job duties changed and that she was not
provided with a description of what her duties were to include. Kent maintains that
her performance evaluations during this time also suffered (although it is
undisputed that she still had satisfactory performance reviews).
On February 16, 2005, Kent resigned from the Department and
completed a voluntary transfer to the Department for Health and Family Services
pursuant to a “Voluntary Transfer and Salary Retention Agreement.”
On May 25, 2005, Kent filed the present action in Franklin Circuit
Court alleging retaliation under KRS 344.030(5) and 61.101(1).3 After substantial
discovery had been completed in the case, including Kent’s deposition, the
Commonwealth filed its motion for summary judgment on August 5, 2008. After
numerous extensions of time, Kent filed a response, which was accepted by the
3
KRS 61.102(1) prohibits the reprisal of a public employee for disclosure of violations of the
law. Kent does not appeal the decision with respect to KRS 61.102(1), but only with respect to
KRS 344.030(5).
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trial court despite being untimely. Thereafter, the trial court made a determination
on the merits, finding in favor of the Commonwealth.
Analysis
On review of the grant or denial of a motion for summary judgment,
we determine whether the trial court was correct in finding that the moving party
was entitled to judgment as a matter of law and that there existed no genuine issues
of material fact. Steelvest, Inc v. Scansteel Service Center, Inc., 807 S.W.2d 476,
480 (Ky. 1991). When asking this question, we review the record “in a light most
favorable to the party opposing the motion for summary judgment.” Id. As the
grant or denial of summary judgment is a question of law, we review such
judgments de novo, giving no deference to the trial court. Blevins v. Moran, 12
S.W.3d 698, 700 (Ky. App. 2000). Further, we look to federal law for guidance in
interpreting Kentucky’s Civil Rights Act. See, e.g., Tiller v. University of
Kentucky, 55 S.W.3d 846, 849 (Ky. App. 2001).
The basis of Kent’s claim is unlawful retaliation under KRS
344.280(1). Such claim requires that a plaintiff establish a prima facie case. A
prima facie case of unlawful retaliation requires that Kent show each of the
following:
1) [that] she engaged in a protected activity, 2) [that] she
was disadvantaged by an act of her employer, and 3)
[that] there was a causal connection between the activity
engaged in and the employer’s act.
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Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 701 (Ky. App. 1991),
citing De Anda v. St. Joseph Hospital, 671 F.2d 850, 856 (1982). In cases like the
present one, where no overt evidence of retaliation is presented, we follow the
guildelines set out under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Kentucky Department of Corrections
v. McCullough, 123 S.W.3d 130, 134 (Ky. 2004). Under the McDonnell Douglas
framework, once the plaintiff establishes a prima facie case, the burden shifts to
the defendant employer to come forth with a non-retaliatory reason for the adverse
employment decision(s) that disadvantaged the plaintiff. Kentucky Dept. of
Corrections, 123 S.W.3d at 134. Once the defendant employer presents such
evidence, the plaintiff must then come forward with evidence of a causal
connection, or retaliatory intent, i.e. that the proffered reason was merely pretext
for a retaliatory reason. Id. A plaintiff who makes a prima facie case and offers
proof of pretext can survive summary judgment. Id. Thereafter, however, the
plaintiff must still “meet her initial burden of persuading the trier of fact by a
preponderance of the evidence that the defendant unlawfully retaliated against
her.” Id., citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143,
120 S.Ct. 2097, 2106; 147 L.Ed.2d 105, 117 (2000).
Failure to be promoted in a position may be evidence of adverse
treatment in retaliation cases. Id. In order to establish that failure to promote is
evidence of adverse treatment, a plaintiff must demonstrate the following:
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[T]hat (1) she applied for promotion after engaging in a
protected activity and was qualified for the promotion,
(2) she was considered for and denied the promotion,
and (3) other employees of similar or lesser qualifications
received promotions at the time [her] request for
promotion was denied.
Id. (emphasis added); see also Brown v. State of Tennessee, 693 F.2d 600, 603 (6th
Cir. 1982). In the present case, it is clear that Kent cannot establish a prima facie
case of retaliation based upon failure to promote. Specifically, she never applied
for the position of Assistant Director (because she lacked the requisite experience
to be placed upon the state register of candidates for the position). Further, she
was never qualified for the position because she lacked over eighteen months of
experience required for the job. It is of little consequence that others in the
Department had been detailed into jobs they were not qualified for, as detailing
was only allowed for periods of twelve months or less according to personnel rules
(and Kent would have needed to be detailed for over eighteen months). Kent
admitted in her deposition testimony that it would have violated the State’s merit
system hiring guidelines if she would have been promoted to the position.
However, she argued that they could “tweak the spec” for the job if they wanted to.
We find it remarkable that Kent suggests on appeal that the Commonwealth
engaged in retaliation because of its refusal to violate its own hiring procedures.
As the trial court aptly noted, “appointment to [the position of Assistant Director]
is determined solely on merit and fitness as prescribed by law. Neither the
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Department’s Commissioner nor the division directors are above the law nor have
the authority to unilaterally amend such prescriptions.”
However, we also recognize that “failure to promote” was not Kent’s
only evidence in support of a prima facie case of retaliation. Kent also argued that
other actions by the Commonwealth constituted adverse treatment. Specifically,
Kent averred that (1) her computer and e-mails were covertly monitored; (2) that
she was “ostracized” in the workplace; (3) that her employer refused to provide her
with detailed and accurate job details so that she could fully perform her duties and
responsibilities; and (4) that her employer attempted to create the impression that
she had been responsible for certain “hiring improprieties” in the past.
KRS 344.280 provides, in pertinent part, that:
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 . . . .
(Emphasis added.) Our Supreme Court recently stated, in the case of Brooks v.
Lexington-Fayette Urban County Housing Authority, 132 S.W.3d 790, 802 (Ky.
2004)(plurality), that a “plaintiff must identify a materially adverse change in the
terms and conditions of [her] employment to state a claim for retaliation.” Id.,
quoting Hollins v. Atlantic Co., Inc., 188 F.3d 652, 662 (6th Cir. 1999). A
materially adverse change is not a change that is a “mere inconvenience” or a mere
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alteration of job responsibilities. Id. Rather, a materially adverse change must be
something more than “those petty slights or minor annoyances that often take place
at work and that all employees experience.” Burlington Northern and Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68; 126 S.Ct. 2405, 2415; 165 L.Ed.2d 345 (2006). The
types of actions or behaviors in the workplace that constitute materially adverse
changes are of such a nature as would dissuade “a reasonable worker from making
or supporting a charge of discrimination.” Id.
In the present case, Kent suffered no salary change and was not
demoted from her position. However, her remaining allegations if true, could
constitute a materially adverse change in the workplace as she alleges that her
office was moved away from the rest of the department (to the “Tower”),4 that she
was unable to perform the material duties of her position while at the Tower
because she did not have ready access to personnel files, that expectations changed
concerning her job duties and that she was not given a proper description of her
responsibilities, that her computer was remotely accessed and that file(s)
mysteriously disappeared from her computer, and that she was generally ostracized
by members of management within the Department. As the United States Supreme
Court has said, “Context matters. ‘The real social impact of workplace behavior
often depends on a constellation of surrounding circumstances, expectations, and
relationships which are not fully captured by a simple recitation of the words used
4
Despite the Commonwealth’s suggestion that Kent “agreed” to the move, Kent testified in her
deposition that she did not know why she was moved and that she was essentially unable to
perform her job while there because she lacked ready access to the personnel files.
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or the physical acts performed.’” Burlington Northern, supra, quoting Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201
(1998). Additionally, we find it worthy of mention that we need not consider the
underlying conduct giving rise to initial grievance, as the Court’s primary concern
should be the retaliatory acts in question. See, e.g., Burlington Northern, supra.
Here, as the actions could be considered materially adverse, the only
remaining question is whether there was a causal connection between the
Department’s actions and Kent’s filing of formal grievances. Certainly a jury
could conclude that there was such a connection here, as most of the activities
occurred close in time to filing of the original (or at least one of the later)
grievances. See, e.g., Follett v. Gateway Regional Health System, Inc., 229 S.W.3d
925, 929 (Ky. App. 2007) (noting that there is rarely a “smoking gun” and that
causal connection may be shown through “circumstantial evidence and the
inferences that can be drawn therefrom.”) Indeed, “at the prima facie stage the
burden is minimal, requiring [only that] the plaintiff . . . put forth some evidence to
deduce a causal connection between the retaliatory action and the protected
activity.” E.E.O.C. v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997).
As an appellate court, we do not fact-find or pass judgment as to
whether an appellant’s allegations are true or untrue. Rather, that is a question for
the finder of fact in the trial court. As aforestated, we must view the facts in a light
most favorable to Kent. Here, we agree that Kent could not succeed, as a matter of
law, in her retaliation claim based upon failure to promote. However, we cannot
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avoid the conclusion that Kent’s other claims, if true, could support a claim of
retaliation. Such findings of fact are to be made by the jury and cannot be
determined by the trial court as a matter of law. As such, summary judgment was
not proper on these claims.
Thus, we affirm in part and reverse in part. Partial summary judgment
was proper on the issue of failure to promote; however, summary judgment was
not proper as to the other grounds supporting a claim of retaliation. Upon remand,
the issue of whether such acts or omissions constituted retaliation should be
presented to the jury at trial.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth S. Hughes
Lexington, Kentucky
Catherine S. Wright
Lexington, Kentucky
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