BECKER (TERRA) VS. SABER MANAGEMENT - KENTUCKY LLC. , ET AL.
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RENDERED: NOVEMBER 25, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000089-MR
TERRA BECKER
v.
APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 08-CI-00045
SABER MANAGEMENT- KENTUCKY,
LLC; AND MARK GOODSIR
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND VANMETER, JUDGES; HENRY,1 SENIOR
JUDGE.
VANMETER, JUDGE: Appellant, Terra Becker, appeals from a Taylor Circuit
Court’s order granting summary judgment to appellees, Saber ManagementKentucky, LLC and Mark Goodsir. Becker filed a multi-count complaint against
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
Saber and Goodsir asserting two primary claims under the Kentucky Civil Rights
Act (KCRA), as set out in KRS 344.040: (1) hostile work environment/sexual
harassment; and (2) retaliation. Becker argues on appeal that the trial court erred
in summarily dismissing these claims. Finding no genuine issues of material fact
in this record to preclude summary judgment on these issues, we affirm.
I.
Factual Background
Many of the facts in this case are disputed. Since this appeal
addresses the propriety of a summary judgment decree, we will recite the facts in a
light most favorable to Becker. See Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807
S.W.2d 476, 480 (Ky. 1991) (“[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 [her] favor”).
Becker was a full-time high school student during her period of
employment with Saber. She was hired for a part-time position in April 2007 at
Campbellsville Memorial Gardens, a cemetery. Her job duties included providing
general office assistance to the Administrator, Shellie Mattingly, as well as making
telemarketing phone calls to potential customers for the purpose of trying to set up
sales appointments with the cemetery’s sales counselor. Becker was paid an
hourly rate, plus two dollars for every appointment she made and five dollars for
each appointment resulting in a sale. According to Becker, her supervisors were
Mattingly and the Sales Manager.
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At the time of Becker’s hiring, the Sales Manager was Jennifer
Ward. In October 2007, Ward transferred to another location. On Monday,
October 22, 2007, Charles Gernheuser was brought in to replace Ward. Thereafter,
Gernheuser hired three new female sales counselors, increasing the total number of
sales counselors in the Campbellsville office from one to four.
The record is clear that during the two-week period between October
22 and November 5, Gernheuser made numerous unwanted comments of a sexual
nature to Becker, as well as to the other female employees. A summary of the
incidents, described by Becker in her deposition, includes the following:
1.
Stated to Becker, in the presence of another
male employee, that it would be nice if Becker were
wearing a bikini so that everyone could watch her.
2.
Repeatedly commented to Becker that she
was beautiful and that he wished he was younger and she
was older, so he could pursue her. With respect to this
last class of comment, Becker testified in her deposition
that she understood from his comments that he was not
going to pursue her.
3.
Stated to Becker that she had a “nice ass.”
4.
Attempted to get Becker to come to his
apartment to help him move in and pick out paint to
match some pictures that had been made by his daughter.
Becker testified that she did not view Gernheuser’s
invitation as either an explicit or implicit request for sex.
5.
Called Becker and asked her to come to the
office at 11:30 one night to help with an unidentified
activity.
6.
Required Becker to drive with him to the
lobby of a local Holiday Inn, where Gernheuser was then
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staying, to look at his daughter’s pictures which
Gernheuser had set up in the lobby to sell. While at the
Holiday Inn, Gernheuser looked at his email on a
computer in the lobby and Becker went to the cafeteria
for hot chocolate. Then Gernheuser and Becker went
back to the office.
7.
Required Becker to drive with him to his
apartment. The length of the stay was five to ten
minutes.2
8.
Asked Becker to stay at his apartment over
the weekend,3 while he traveled to the company’s office
in Indiana. Becker testified Gernheuser wanted her to
babysit his dog, and he suggested Becker could have
friends over, sleep in his bed, eat his food and use the
shower. When Gernheuser initially tried to give Becker a
key, she refused, but he had multiple apartment keys
made and gave one to each employee in the office.
9.
The last time Becker and Gernheuser were
in the office, he touched her back in the area of her
shoulder.
At the time of these incidents, Becker was 17 years old and Gernheuser was 57
years old. The record is clear and undisputed, however, that Gernheuser never
explicitly propositioned Becker, requested sexual favors, asked her out, or
threatened her.
On or about Friday, November 2, which was eleven days after
Gernheuser started in the Campbellsville office, Becker reported Gernheuser’s
2
Becker’s deposition testimony was inconsistent on whether she actually ever went with
Gernheuser to his apartment. For the purpose of this opinion, and again considering the facts
most favorably to Becker, we will assume that she did go to the apartment.
3
The exact dates that Gernheuser would have been gone are not clear from the record, but the
weekend was that of Friday, November 2 to Sunday, November 4, which presumably was his
final weekend assigned to Saber’s Campbellsville office.
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conduct to the Administrator, Mattingly, who assured Becker that she would
address the situation immediately. Around this time, Becker also reported to
Mattingly an incident involving Gernheuser’s use of profanity and yelling, which
was directed towards the female sales counselors. This latter incident, and
Gernheuser’s statements and conduct towards Becker, were reported by Mattingly
during a conference call to management personnel at Saber’s headquarters in
Kokomo, Indiana.
Three days later, on Monday, November 5, Gernheuser was demoted
and transferred to another location.4 After another three days, on Thursday,
November 8, Goodsir replaced Gernheuser as the new Sales Manager for the
office. Goodsir met with the employees, including Becker, and expressed empathy
regarding their dealings with Gernheuser. However, to eliminate the ongoing
discussions regarding Gernheuser, Goodsir instructed the staff to put the incident
behind them and not talk about it any more.
Despite his departure, Gernheuser continued to call the staff,
including Becker on two occasions. Becker reported these telephone calls to
Goodsir on or about Saturday, November 10. Goodsir did not document Becker’s
renewed complaint or report it to headquarters. However, at some point
Gernheuser called the office while Becker and the other female sales counselors
were present. Goodsir took the telephone and instructed Gernheuser that he was
not to speak with any of the staff. Rather, if Gernheuser should have any reason to
4
Gernheuser did not return to the Campbellsville office after his departure in the week ending
Friday, November 2.
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call again, he should speak only with Goodsir. Gernheuser thereafter stopped
calling.
On Monday, November 12, Goodsir stayed late to observe Becker’s
work, as the sales counselors had complained to him about her performance in
generating sales appointments. After observing Becker, Goodsir concluded that
she was making too many personal phone calls and not enough sales calls,
although he stated during his deposition that he had discarded his handwritten
notes documenting her work performance from that night. With four sales
counselors clamoring for leads, Goodsir decided that the office needed a full-time
telemarketer. Goodsir, who understood that Becker was a full-time student who
could not work full-time, discharged her on November 13. Immediately thereafter,
one of the sales counselors was transferred to the newly-created full-time
telemarketing position.
In January 2008, Becker filed a complaint in the Taylor Circuit Court
alleging claims for hostile work environment/sexual harassment and retaliation.
Becker’s claims were dismissed by summary judgment. This appeal follows.
II.
Standard of Review
Our standard of review on appeal of a summary judgment order 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). “Even though a trial
court may believe the party opposing the motion may not succeed at trial, it should
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not render a summary judgment if there is any issue of material fact.” Steelvest,
Inc., 807 S.W.2d at 480. The determination of whether there is any issue of
material fact is a question of law and thus, the trial court’s determination regarding
this question is owed no deference by this Court. Blevins v. Moran, 12 S.W.3d
698, 700 (Ky.App. 2000).
III.
Hostile Work Environment
In her first argument, Becker claims the trial court erred in its
determination that no genuine issues of material fact existed regarding her hostile
work environment/sexual harassment claim, which was brought under the KCRA.
Under KRS 344.040, “it is unlawful for an employer, on the basis of sex, to
‘discriminate against an individual with respect to compensation, terms,
conditions, or privileges of employment . . . [or] to limit, segregate, or classify
employees in any way which would . . . tend to deprive an individual of
employment opportunities or otherwise adversely affect status as an employee.’”
Ammerman v. Bd. of Educ., 30 S.W.3d 793, 797 (Ky. 2000). In other words,
consistent with Title VII of the 1964 Federal Civil Rights Act, 42 U.S.C. § 2000e2(a)(1), the KCRA prohibits sexual harassment in the workplace that creates “a
hostile or abusive work environment.” Id. at 798. The Kentucky Supreme Court
has made clear that since “the provisions of KCRA are virtually identical to those
of the Federal act[,] . . . ‘in this particular area we must consider the way the
Federal act has been interpreted.’” Jefferson County v. Zaring, 91 S.W.3d 583,
586 (Ky. 2002) (citations omitted); see Ammerman, 30 S.W.3d at 797-98. In
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addition, “an interpretation given to a federal statute by the United States Supreme
Court is binding on state courts, ‘any state law, decision, or rule to the contrary
notwithstanding.’” Zaring, 91 S.W.3d at 586 (quoting Chesapeake & O. Ry. v.
Martin, 283 U.S. 209, 220-21, 51 S.Ct. 453, 453, 75 L.Ed. 983 (1931)).
To establish successfully a prima facie showing of a cause of action
predicated upon hostile work environment based on sex, a plaintiff must
demonstrate that “(1) she is a member of a protected class, (2) she was subjected to
unwelcome sexual harassment, (3) the harassment was based on her sex, (4) the
harassment created a hostile work environment, and that (5) the employer is
vicariously liable.” Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir.
2005).
In the instant case, no dispute exists concerning the first three
elements. However, with respect to the fourth element of whether a hostile work
environment existed, case law emphasizes that not only must the conduct be
extreme and based upon the plaintiff's gender, but it must also pass the test of
objectivity. A determination as to the existence of an objectively hostile or abusive
work environment can be made only by looking at all the circumstances, which
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.” Harris v.
Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295
(1993).
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In Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275,
2283, 141 L.Ed.2d 662 (1998), the United States Supreme Court reiterated its
conclusion that to be actionable, “a sexually objectionable environment must be
both objectively and subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim in fact did perceive to be so.” This
requires that a trial court examine the totality of the circumstances, the frequency
of the conduct, whether the conduct was physically threatening or humiliating, and
whether the conduct in fact interfered with an employee's work performance. Id. at
788, 118 S.Ct. at 2283. As stated by the Supreme Court,
[t]hese standards for judging hostility are sufficiently
demanding to ensure that Title VII does not become a
“general civility code.” Properly applied, they will filter
out complaints attacking “the ordinary tribulations of the
workplace, such as the sporadic use of abusive language,
gender-related jokes, and occasional teasing.” We have
made it clear that the conduct must be extreme to amount
to a change in the terms and conditions of employment
. . . . [Citations omitted.]
Id. at 788, 118 S.Ct. at 2283-84.
Thus, in order to establish a hostile or abusive work environment,
incidents of sexual harassment must be sufficiently severe or pervasive so as to
“‘alter the conditions of [the victim’s] employment and create an abusive working
environment.’” Id. at 787, 118 S.Ct. at 2283 (quoting Mentor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986)).
Moreover, the incidents “must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive[.]” Id. at 787, 118 S.Ct.
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at 2283 (internal quotation and citation omitted). “[I]solated incidents must be
extremely serious and be more than episodic” in order to meet the “severe or
pervasive” element of a KCRA claim. Lumpkins ex rel. Lumpkins v. City of
Louisville, 157 S.W.3d 601, 605 (Ky. 2005).
Becker argues that, with regard to her sexual harassment claim, the
trial court erroneously concluded that Gernheuser’s conduct was not, as a matter of
law, “sufficiently severe or pervasive so as alter the conditions” of Becker’s
employment. Becker contends the trial court erred by failing to consider the
totality of the circumstances in arriving at this conclusion. We disagree.
Becker’s exposure to Gernheuser’s inappropriate statements and
conduct was limited. From the beginning of her employment to the end of her
employment, Becker interacted with Gernheuser in person on no more than six
occasions. She also received telephone calls from Gernheuser during a three-week
portion of her employment. However, no inappropriate touching is alleged by
Becker, and no overt threats of violence or demands for sexual favors were made.
The annoying circumstances and inappropriate behaviors identified by Becker,
when viewed in their totality, simply do not rise to the required level, and
Gernheuser’s actions do not constitute severe and pervasive harassment under the
prevailing standard. Without a doubt, his comments were inappropriate,
unwelcome, and as Becker testified, “creepy” and “weird.” Nevertheless, under
the objective standard mandated by Faragher, 524 U.S. at 787, 118 S.Ct. at 2283,
they did not create an actionable hostile work environment. Again, Gernheuser’s
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comments were improper, in poor taste, and demonstrative of bad manners, but
they did not create a pervasive, abusive work atmosphere.
Furthermore, no evidence in the record supports a claim that
Gernheuser’s actions interfered with Becker’s work performance. The record
amply demonstrates that Becker had made no appointments for the sales
counselors since approximately August 2007, two months before Gernheuser
arrived.
IV.
Employer Liability
The trial court also determined that Becker failed to establish a
genuine issue of material fact as to employer liability. “When no tangible
employment action is taken,[5] a defending employer may raise an affirmative
defense to liability or damages[.]” Bank One, Kentucky, N.A. v. Murphy, 52
S.W.3d 540, 544 (Ky. 2001) (citations and internal quotations omitted). “The
defense comprises two necessary elements: (a) that the employer exercised
reasonable care to prevent and correct promptly any sexually harassing behavior,
and (b) that the plaintiff employee unreasonably failed to take advantage of any
5
Becker claimed at the trial court level that a genuine issue of material fact existed as to whether
Saber and Goodsir were entitled to assert this affirmative defense since a tangible employment
action was taken against her, i.e., she was fired almost immediately after she made her second
complaint of ongoing harassment by Gernheuser. The trial court held that Becker was
“judicially estopped” from asserting such a claim, however, since she failed to plead in her
complaint that she was discharged due to “harassment.” Rather, Becker’s complaint only
asserted discharge due to “retaliation” for the reporting of harassment. Becker has abandoned
her claim of strict liability due to a tangible employment action on appeal. Accordingly, we do
not address or make any opinions as to the propriety of the trial court’s ruling on this issue in this
appeal.
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preventive or corrective opportunities provided by the employer or to avoid harm
otherwise.” Id. (emphasis omitted).
To support its conclusion that, as a matter of law, Saber was not liable
for any sexual harassment perpetrated by Gernheuser against Becker, the trial court
found the following: (1) Saber implemented and posted a sexual harassment
policy, which Becker acknowledged receiving in writing; (2) a specific complaint
procedure was outlined in this policy; (3) this complaint procedure directed Becker
to notify either a supervisor, a manager, or the President, and to call Human
Resources to report sexual harassment; (4) Becker did not comply with the policy
since she only reported the harassment to Mattingly, who was not a supervisor,
manager, or President, and she did not call Human Resources; and (5) Saber acted
promptly and immediately in remedying the situation once it was reported by
Mattingly.
Becker argues that the trial court’s findings are insufficient to support
the conclusion that no genuine issues of material fact existed as to whether Saber
satisfied the two elements of the affirmative defense. We disagree. Becker
concedes that Saber had a sexual harassment policy and acted quickly to remove
Gernheuser from the office upon being notified of his conduct. In fact, Saber
removed Gernheuser from the Campbellsville office on the day it became aware of
his inappropriate conduct, and it terminated his employment altogether within a
month. Although Becker argues that she and other female employees continued to
receive unwanted contact from Gernheuser for a few days after his removal, the
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record is clear that Gernheuser stopped calling once Goodsir told him to stop.
Thus, summary judgment was appropriate as to the first element of this affirmative
defense.
The second element pertains to whether Becker “unreasonably failed
to take advantage of any preventive or corrective opportunities provided by [Saber]
or to avoid harm otherwise.” Bank One, 52 S.W.3d at 544. As set forth in
Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342 (2004), the
second element of an employer’s affirmative defense does not mandate strict
adherence to form over substance when determining whether an employee
reasonably took advantage of the employer’s complaint procedure, but rather
“borrows from tort law the avoidable consequences doctrine, under which victims
have a duty to use such means as are reasonable under the circumstances to avoid
or minimize the damages that result from violations of the statute . . . .” 542 U.S.
at 146, 124 S.Ct. at 2354 (internal quotations and citations omitted). See also
Thornton v. Fed. Express Corp., 530 F.3d 451, 456 (6th Cir. 2008) (holding that an
effective sexual harassment policy should provide for both formal and informal
complaints of sexual harassment to be made).
While issues may exist as to (1) whether Mattingly was a supervisor
under the terms of Saber’s policy, or (2) whether Mattingly reported the
harassment to Saber Management on Friday, November 2, or Saturday, November
3, no dispute exists that Becker only reported the harassment and Mattingly, at the
earliest, learned of it only on Thursday, November 1, or Friday, November 2. The
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record does not disclose over how long a period Gernheuser’s actions took place.
If they started upon his arrival, then Becker’s delay in notifying Mattingly was
unreasonable, given Saber’s prompt reaction once it learned what occurred.
Saber’s reaction was immediately to remove Gernheuser from the Campbellsville’s
office. See Collette v. Stein-Mart, Inc., 126 Fed. Appx. 678, 686 (6th Cir. 2005)
(stating that “‘[t]he most significant immediate measure an employer can take in
response to a sexual harassment complaint is to launch a prompt investigation.’”)
(quoting Swenson v. Potter, 271 F.3d 1184, 1193 (9th Cir. 2001)). To paraphrase
the Sixth Circuit Court of Appeals, Saber’s “corrective measures epitomized how a
responsible employer should act when confronted with an allegation of
employment discrimination.” Collette, 126 Fed. Appx. at 686.
This situation is not one of long-term sexual harassment that was
either unreported despite the existence of a complaint procedure, or implicitly
ignored by the turning of a blind eye by low-level managers or supervisors.
Instead, this situation was one of short duration that Mattingly immediately
reported, either the same day or one day later after it was reported to her by
Becker, and that immediately was addressed by Saber. Thus, summary judgment
in favor of Saber as to the second prong of the employer liability test was
appropriate.
IV.
Retaliation
Becker also appeals the trial court’s summary dismissal of her
retaliation claim. KRS 344.280(1) prohibits an employer’s retaliatory response to
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an employee’s report or complaint about conduct which violates the KCRA.
“[I]nterpreting unlawful retaliation under the KCRA consistent with the
interpretation of unlawful retaliation under federal law[,]” Brooks v. LexingtonFayette Urban County Hous. Auth., 132 S.W.3d 790, 802 (Ky. 2004), the
Kentucky Supreme Court has set forth the elements of a prima facie case of
retaliation under KRS 344.280 as follows: (1) an employee was engaged in a
protected activity; (2) the exercise of the employee’s civil rights was known by the
employer; (3) the employer thereafter took an employment action adverse to the
employee; and (4) a causal connection existed “between the protected activity and
the adverse employment action.” Id. at 803.
Once a prima facie case of retaliation is established, the employer
must “articulate some legitimate, nondiscriminatory reason for its actions.” Morris
v. Oldham County Fiscal Court, 201 F.3d 784, 793 (6th Cir. 2000) (internal
quotation and citation omitted). If such a legitimate reason is articulated, the
employee’s burden is to “demonstrate that the proffered reason was not the true
reason for the employment decision.” Id. (internal quotation and citation omitted).
In order to withstand summary judgment on the issue of pretext, the employee
“must produce evidence that either the proffered reason: (1) has no basis in fact;
(2) did not actually motivate the adverse employment action; or (3) was
insufficient to warrant the adverse action.” Ladd v. Grand Trunk W. R.R., 552 F.3d
495, 502 (6th Cir. 2009).
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Here, regardless of whether Becker could establish a prima facie case,
the record is devoid of any evidence to suggest that the legitimate,
nondiscriminatory reason given by Saber and Goodsir for discharging Becker was
mere pretext. Instead, the record clearly establishes the existence of a sufficient
reason for the adverse action against Becker, as the Campbellsville office needed a
full-time telemarketer to provide sales appointments for its newly increased sales
force. Undisputed evidence in the record establishes that Becker had failed to
make any sales appointments for some period of time and that she was not
available to work full-time.
As to the issue of whether the stated legitimate business and resource
considerations were the actual motivation behind Becker’s discharge, the record
shows that other, similarly-situated female sales counselors also complained of and
reported sexual harassment by Gernheuser to Saber and Goodsir. Yet, these sales
counselors were not terminated or subjected to adverse employment actions based
on their exercise of protected conduct. Becker herself reported that she was not
subjected to any negative reactions when she made her reports and complaints. In
fact, the record demonstrates that Becker received empathy and affirmation from
both Mattingly and Goodsir when making her reports. Moreover, the record shows
that Saber and Goodsir followed through with the hiring of a full-time
telemarketer, who happened to be female, for the purpose of producing more leads
for the increased sales staff.
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Becker counters that other facts in the record suggest retaliatory
intent. She points to a calendar discrepancy on her termination paperwork which
suggests that Goodsir may have decided to fire Becker prior to his observation of
her work. She further points to an alleged quip by Saber’s president, downplaying
the seriousness of the allegations against Gernheuser. Becker argues that this
evidence, coupled with the timing of her termination, is sufficient to withstand
summary judgment on the issue of pretext. We disagree, as we find nothing of
substance in the evidence which a reasonable juror could rely on to support a
judgment in Becker’s favor. See Kentucky Ctr. for the Arts v. Handley, 827
S.W.2d 697, 700 (Ky.App. 1991) (“cold hard facts [must be] presented from which
the inference can be drawn” that employer’s proffered reasons are pretextual). Cf.
Ladd, 552 F.3d at 503 (summary judgment in favor of employer was appropriate as
to question of pretext where evidence, while disputed, suggested that employer in
good faith discharged employee for falsifying injury report and no evidence
showed that employee was treated differently from others who were found to have
falsified reports).
When the record is viewed in its entirety, we can discern no colorable
evidence or explanation to support a conclusion that the legitimate,
nondiscriminatory reason proffered by Saber and Goodsir for discharging Becker
was merely a pretext for unlawful retaliation. We therefore find no error in the
trial court’s determination that Saber and Goodsir were entitled to summary
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judgment as a matter of law on Becker’s claim of unlawful retaliation in violation
of KRS 344.280(1).
V.
Conclusion
Having considered all of the arguments set forth in this appeal, we
hereby affirm the Taylor Circuit Court’s summary judgment dismissing Becker’s
KCRA claims for hostile work environment/sexual harassment and retaliation.
HENRY, SENIOR JUDGE, CONCURS.
LAMBERT, JUDGE, CONCURS IN PART AND DISSENTS IN
PART.
LAMBERT, JUDGE, CONCURRING IN PART AND DISSENTING
IN PART: I concur with the majority’s well-reasoned opinion insofar as it affirms
the trial court’s ruling that Becker’s claim of retaliation under KRS 344.280(1)
fails as a matter of law. As held by the majority, there is simply no colorable
evidence or pretext to justify advancing Becker’s claim to a jury.
However, I am compelled to dissent to that portion of the majority’s
opinion affirming the trial court’s ruling that Becker’s claim of sexual harassment
under KRS 344.040 also fails as a matter of law. While this is undoubtedly a very
close call due to the limited period of Becker’s exposure to an abusive and hostile
work environment, our case law mandates that all doubts are to be resolved in
favor of the party opposing summary judgment. See Steelvest, Inc. v. Scansteel
Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
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Believing that a party is unlikely to prevail at trial is not sufficient
grounds for granting a summary judgment motion. Id. Indeed, our Supreme Court
has discussed the compelling reasons that justify the exercise of caution in the
granting of motions that deprive litigants of their day in court:
The role of the jury in interpreting the evidence and
finding the ultimate facts is an American tradition so
fundamental as to merit constitutional recognition. U.S.
Const.Amend. VII; Ky.Const. Sec. 7. The conscience of
the community speaks through the verdict of the jury, not
the judge's view of the evidence. . . . [If] deciding when
to take a case from the jury is a matter of degree, a line
drawn in sand . . . this is all the more reason why the
judiciary should be careful not to overstep the line.
Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 822 (Ky. 1992) (quoting
Horton v. Union Light, Heat and Power Co., 690 S.W.2d 382, 385 (Ky. 1985)).
The majority pins its holding on two grounds: (1) Becker failed to
establish, as a matter of law, that the sexual harassment perpetrated by Gernheuser
was “sufficiently severe or pervasive so as to alter the conditions of the plaintiff's
employment and create an abusive working environment,” Ammerman v. Board of
Ed. of Nicholas County, 30 S.W.3d 793, 797 (Ky. 2000); and (2) Becker failed to
establish a genuine issue of material fact as to employer liability. While I agree
that it is certainly a close case as to the first grounds, I disagree with the majority’s
holding regarding the second.
Determining the “sufficiently severe or pervasive” element of any
KCRA sexual harassment claim “is not a question of law but a question of fact,
albeit a question of ultimate fact.” Meyers, 849 S.W.2d at 821. Thus, summary
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dismissal is simply not appropriate on this question “where there is any colorable
evidence of such harassment.” Kirkwood v. Courier-Journal, 858 S.W.2d 194, 198
(Ky. App. 1993).
In this case, I believe Becker set forth sufficient evidence to support a
colorable claim of sexual harassment. It is significant that Becker was a 17-yearold girl at the time she was subject to her 57-year-old supervisor’s continuous and
repeated unwanted comments and advances. As held in Kirkwood, “a plethora of
[] subjective and objective factors” such as “the nature of the alleged harassment,
the background and experience of the plaintiff, her coworkers, and supervisors, the
totality of the physical environment of the plaintiff's work area, [and] the lexicon
of obscenity that pervaded the environment of the workplace both before and after
the plaintiff's introduction into its environs” are relevant in making the above
determination. Id. (internal quotation and citation omitted).
What the majority focuses on in this case is the very limited period of
Becker’s exposure to Gernheuser and the immediacy of Saber Management’s
response upon learning of Gernheuser’s conduct. I, too, find these facts to be
extremely relevant to the strength of Becker’s claim, however, I do not believe
they operate, as a matter of law, to deprive her of her day in court.
As held by the majority, a plaintiff meets his or her burden of
establishing a prime facie claim for sexual harassment by setting forth colorable
evidence that a hostile work environment was so severe and pervasive that it
altered the conditions of the plaintiff’s employment. Faragher v. City of Boca
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Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998).
Offensive conduct must be more than isolated or episodic to meet this standard.
Id.
In this case, it is without dispute that Gernheuser’s unwanted
comments and advances towards his 17-year-old employee were more than
isolated or episodic. Becker set forth facts suggesting that she was repeatedly and
continuously exposed to such conduct during the entirety of Gernheuser’s
employment at the Campbellsville office and for a period of time thereafter. The
totality of Gernheuser’s conduct was characterized as being “creepy” and “weird,”
which is a far cry from occasional or sporadic inappropriateness or irritating
behavior. This is certainly colorable evidence to allow a reasonable juror to
believe that Gernheuser’s conduct went beyond “the ordinary tribulations of the
workplace, such as the sporadic use of abusive language, gender-related jokes, and
occasional teasing.” Id.
While Becker’s exposure to this continuous and repeated conduct was
brief (no more than three weeks), I believe that this important fact speaks more to
the issue of whether Becker could have suffered any significant damages during
this abbreviated time period rather than whether the terms of her employment were
altered, however briefly, by Gernheuser’s conduct. In Lumpkins ex rel. Lumpkins
v. City of Louisville, 157 S.W.3d 601 (Ky. 2005), our Supreme Court rejected an
argument that a claim for hostile work environment could not be sustained due to
the fact that the victims were only exposed to this environment during the course
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of a single summer. Id. at 605-606. While none of the incidents in that case were
particularly extreme or severe, the Supreme Court nevertheless agreed that the
victims’ continuous and repeated exposure to the non-violent, yet hostile
environment was sufficient to alter the terms of their employment. Id.
It is also without dispute that the entirety of the female staff to which
Gernheuser was exposed were equally offended and upset by Gernheuser’s
sexually-oriented conduct. Thus, I believe there is little doubt that Becker’s
perceptions as to the offensiveness of the sexually objectionable environment
created by Gernheuser were both subjectively and objectively reasonable. See
Faragher, 524 U.S. at 787, 118 S.Ct. 2275 at 2283.
Certainly, this case comes very close to that line drawn in the sand
between protecting one’s right to have the conscience of his or her community
speak through the verdict of the jury and weeding out clearly non-meritorious
cases. However, the standard in Kentucky remains that summary judgment should
not be granted unless “judgment is shown with such clarity that there is no room
left for controversy.” Steelvest, 807 S.W.2d at 482. Given the unique facts of this
case, Becker’s young age, the harasser’s age and status as a direct supervisor, the
corroborating reactions of the other older and grown women, and the frequency of
the harasser’s clearly offensive conduct over such a short period of time, I believe
there is certainly room for controversy here. Accordingly, I must respectfully
dissent to the majority’s holding that Becker should be deprived of her right to
submit this question to a jury.
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I also disagree with the majority’s alternative holding that even if the
trial court erred as set forth above, Appellees were nevertheless entitled to
summary judgment because there were no genuine issues of material fact as to
employer liability. As set forth by the majority, an employer may avoid liability
for sexual harassment perpetrated by its employee upon the satisfaction of two
elements: “(a) that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.” Bank One, Kentucky, N.A.
v. Murphy, 52 S.W.3d 540, 544 (Ky. 2001) (internal quotation and citation
omitted).
Even if summary judgment was appropriate as to the first element of
this affirmative defense,6 it certainly was not appropriate as to the second element
of the defense. The majority mischaracterizes this element as one which assesses
the promptness or reasonableness of the employer’s response to any complaints
that may be alleged by its employees. Yet, that is not a relevant inquiry. Rather,
6
There is dispute as to whether Saber Management exercised “reasonable care to prevent and
correct promptly any sexually harassing behavior.” Murphy, 52 S.W.3d at 544. As argued by
Becker, despite the steps taken by Saber Management to transfer Gernheuser to another location,
Becker, as well as other female employees, continued to receive unwanted contact from
Gernheuser for a period of time after Gernheuser’s transfer. It is not apparent from this record
what steps, if any, were taken by Saber Management to confront Gernheuser with the allegations
of sexual harassment or to prevent Gernheuser from continuing to engage in such conduct
subsequent to his transfer. See Murphy, 52 S.W.3d at 545 (genuine issue of material fact existed
where it was unresolved on record whether employer confronted alleged harasser with prior
allegations of harassment and took reasonable steps to ensure that harasser would not engage in
such conduct again). Thus, I am not convinced that summary judgment was appropriate even as
to the first element of this affirmative defense.
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the relevant inquiry is whether the employee failed to take advantage of
preventative or corrective opportunities provided by the employer. Here, there is
absolutely no evidence to suggest that Becker failed to take advantage of any such
opportunities. In fact, the very reason this harassment was so short-lived was
because Becker promptly reported it and Appellee’s promptly responded to the
report. Thus, the second element of this affirmative defense is simply not
applicable in these circumstances.
The majority’s suggestion that Becker’s claim was precluded as a
matter of law due the minimal delay between when the harassment first started and
when Becker finally had a chance to discuss the situation with Mattingly is simply
not persuasive. Besides, any question as to whether this delay was meaningful is a
question of fact that must be reserved for a jury. See Meyers, 840 S.W.2d at 822
(determination of essential questions of fact in sexual harassment claims are within
the sole province of a jury and trial courts are bound to respect the jury’s
constitutionally protected role to determine such questions); Gallagher v. C.H.
Robinson Worldwide, Inc., 567 F.3d 263, 277 (6th Cir. 2009) (determination of
employer liability presented “classic questions of fact” that precluded summary
judgment).
For these reasons, I would affirm the portion of the trial court’s
January 7, 2009, order summarily dismissing Becker’s KCRA claim for retaliation
as Appellees were entitled to summary judgment on this claim as a matter of law.
However, I would reverse the portion of the trial court’s January 7, 2009, order
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summarily dismissing Becker’s KCRA claim for hostile work environment/sexual
harassment as genuine issues of material fact existed to preclude summary
judgment of this claim.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Bryan M. Cassis
Louisville, Kentucky
Philip C. Eschels
Louisville, Kentucky
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