ELLIOT (SHANNON) VS. LAUREL COOKIE FACTORY , ET AL.
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RENDERED: APRIL 2, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002113-MR
SHANNON ELLIOTT
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 04-CI-01032
LAUREL COOKIE FACTORY AND/OR
CONSOLIDATED BISCUIT COMPANY
APPELLEES
OPINION
AFFIRIMING
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BEFORE: ACREE, CAPERTON AND THOMPSON, JUDGES.
THOMPSON, JUDGE: Shannon Elliott filed a claim for wrongful termination
against her former employer, Laurel Cookie Factory and/or Consolidated Biscuit
Company, alleging that she was terminated in retaliation for her pursuit of a
workers’ compensation claim in violation of Kentucky Revised Statutes (KRS)
342.197. After a jury found that Elliott’s pursuit of a workers’ compensation claim
was not a substantial and contributing factor in Laurel Cookie Factory’s decision to
terminate her employment, a judgment was entered dismissing her claim.
On appeal, Elliott alleges the following errors: (1) that the trial court
erred when it refused to allow her to present medical records from her workers’
compensation proceeding; (2) that the trial court erred when it excluded the
deposition of a witness; (3) that the trial court erred when it excluded testimony
from a former Laurel Cookie Factory employee; and (4) that the trial court erred
when it refused evidence regarding front pay to be presented to the jury and denied
front pay without considering reinstatement. We conclude that Elliott’s claims of
error are without merit and affirm.
Elliott was employed by Laurel Cookie Factory, first as a packer and
then as a machine operator. On August 11, 2003, during the course of her
employment, she was burned by hot glue and, as result, filed a workers’
compensation claim. After she was medically released to return to work on
September 2, 2003, Elliott was informed that her employment was terminated for
the following reasons: (1) violation of plant rules; (2) failing to follow safety
rules; (3) being out of her assigned work area; and (4) using inappropriate gestures
and making lewd comments.
We first address the evidentiary issues presented. Elliott argues that
the trial court erred when it precluded the introduction of her workers’
compensation records, including a report from Dr. Shraberg. Citing Kentucky
Rules of Evidence (KRE) 201 pertaining to judicial notice of adjudicative facts and
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our rules of evidence regarding the authentication of documents contained in KRE
1003, 1004 and 1005, she alleges that the medical records were admissible.
Elliott ignores the reason the trial court excluded the records was
because it found that they were not relevant to the issues in controversy. “The
relevancy of evidence is a matter that rests within the broad discretion of the trial
court.” Reece v. Nationwide Mutual Insurance Co., 217 S.W.3d 226, 232 (Ky.
2007). KRE 402 sets forth the general rule that all relevant evidence is admissible
and evidence which is not relevant is inadmissible. KRE 401 defines relevant
evidence as “evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.”
The issue was whether Elliott’s pursuit of her workers’ compensation
claim was a substantial factor in her employment termination. Laurel Cookie
Factory did not dispute that she was injured during the course of her employment
and had filed a workers’ compensation claim. Thus, we conclude that the trial
court did not abuse its discretion when it excluded the workers’ compensation
records because the records would not aid the jury’s determination of whether it
was more or less probable that Elliott was wrongfully terminated.
We also conclude that Elliott’s contention that the trial court erred
when it refused her request to introduce the deposition of Freda Shepherd who was
absent on the date of trial. The use of depositions at trial in lieu of live testimony
is subject to Kentucky Rules of Civil Procedure (CR) 32.01, which permits the use
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of a deposition of a witness if the court finds that “exceptional circumstances exist
as to make it desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses in open court, to allow the
depositions to be used.”
Elliott contends that “extraordinary circumstances” justified the use of
Shepherd’s deposition because the Clay County Sheriff unsuccessfully attempted
to serve Shepherd. However, no representative of that office testified regarding
attempts to serve her and no evidence was introduced indicating that Shepherd was
unavailable for trial. We conclude that the trial court did not err in refusing the
admission of the deposition.
The trial court also excluded the testimony of Tracy Hobbs who was
terminated in 2003 from Laurel Cookie Factory after she pursued a workers’
compensation claim. Generally, testimony that other employees were retaliated
against after suffering a work-related injury and that the employer had a policy of
retaliatory termination is relevant to the true motive for an employee's termination.
See Willoughby v. GenCorp, Inc., 809 S.W.2d 858 (Ky. 1990). However,
relevancy is dependent upon a demonstration that the former employee was
similarly situated and evidence that the filing of a workers’ compensation claim
was a substantial factor in the employee’s termination. See McBrearty v. Kentucky
Community and Technical College System, 262 S.W.3d 205 (Ky.App. 2008);
Commonwealth v. Solly, 253 S.W.3d 537 (Ky. 2008).
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Elliott fails to cite Hobbs’s avowal testimony where she alleged that
her termination was in retaliation for filing a workers’ compensation claim or
explained the circumstances of her employment and termination. She merely
asserts that: “I would have shown that the Laurel Cookie Factory has a tendency to
terminate employees who have a work related injury.” Under the circumstances,
we conclude that the trial court did not err.
We have refrained from discussing Elliott’s contention regarding front
pay until resolution of the evidentiary issues. Front pay is an element of damages.
See Ferry v. Cundiff Steel Erectors, Inc., 218 S.W.3d 390, 393 (Ky.App. 2006).
Because we conclude there are no grounds for reversal on the issue of liability, the
issue of front pay is moot.
Based on the foregoing, the judgment of the Laurel Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Phyllis L. Robinson
Manchester, Kentucky
Tighe A. Estes
Bradford L. Breeding
London, Kentucky
Linda B. Sullivan
Mt. Pleasant, South Carolina
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