PATRICK (MICHELLE) VS. CORRECTIONAL CORPORATION OF AMERICA , ET AL.
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RENDERED: OCTOBER 8, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001919-MR
MICHELLE PATRICK
v.
APPELLANT
APPEAL FROM LEE CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 05-CI-00002
CORRECTIONS CORPORATION OF
AMERICA, D/B/A LEE COUNTY
ADJUSTMENT CENTER; BESSIE HUGHES;
ARCHIE MOORE; AND RANDY STOVALL
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON AND STUMBO, JUDGES.
DIXON, JUDGE: Appellant, Michelle Patrick, appeals from an order of the Lee
Circuit Court granting summary judgment in favor of Appellees, Corrections
Corporation of America, d/b/a Lee County Adjustment Center, Captain Bessie
Hughes, Archie Moore, and Warden Randy Stovall. Finding no genuine issues of
material fact in the record to preclude summary judgment, we affirm the trial court.
In March 2004, Patrick was hired as a correctional officer at the Lee
County Adjustment Center (“LAC”) in Beattyville, Kentucky, which is owned and
operated by the Corrections Corporation of America (“CCA”). On August 18,
2004, Patrick complained to her unit manager, James Combs, that one of her
supervisors, Bessie Hughes, had made inappropriate statements to her on several
occasions. Following the CCA/LAC’s sexual harassment policy, Combs took
Patrick to the human resource department to report her concerns.
On the same day, Internal Affairs investigator, Archie Moore,
requested that Patrick file a written complaint. Therein, Patrick alleged the
following incidents:
1. In July, 2004, Hughes said to Patrick, “Men are crazy,
why [sic] do you need a man for? Well, if it’s for that, I
can help you. You can get them ‘bout anywhere,
batteries are cheap and most of thems [sic] rechargeable.”
2. On August 16, 2004, as some of the male employees
were “carrying on” Hughes said to Patrick, “you know,
you’ve got two main things you can control him
with . . . .”
3. On August 17, 2004, when Patrick told Hughes that
she had fallen off of a horse and hurt her ankle, Hughes
said something about Patrick having a “sore ass.”
Moore thereafter interviewed Hughes, who essentially admitted to
having made the first two statements. On September 7, 2004, Moore met with
Patrick and asked her what she would like to see happen in the case since Hughes
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had admitted the conduct. It is undisputed that Patrick did not want to see Hughes
fired but thought that she should receive some form of punishment. During the
same meeting, Patrick confirmed that no further objectionable statements had been
made by Hughes. However, Patrick complained that Hughes had moved her from
her normal work post to other locations on several shifts.
Moore completed his report on September 9, 2004, recommending
that Hughes receive counseling for her unprofessional conduct. Further, Moore
determined that Patrick’s reassignment to other work posts was made because two
staff members had been placed on light duty for medical reasons. In addition, the
records established that Patrick had not just been moved by Hughes, but also by
other supervisors for the same reason.
In order to close the matter, Patrick was scheduled to meet with thenwarden, Randy Eckman. However, on September 14, 2004, a riot occurred at LAC
while Warden Eckman was away, and he was thereafter terminated. On September
18, 2004, Warden Stovall was assigned to LAC. After being made aware of
Patrick’s sexual harassment complaint, Warden Stovall requested that Patrick fill
out a second report, dated September 28, 2004. On October 6, 2004, prior to
meeting with Warden Stovall, Patrick quit her employment at LAC.
On January 7, 2005, Patrick filed a sexual harassment action1 in the
Lee Circuit Court against CCA, Hughes, Moore and Stovall. Therein, Patrick
alleged that Hughes sexually harassed her on three occasions by making offensive
1
Patrick’s complaint did not allege violation of any state or federal statutory laws even though
the facts were consistent with a sexual harassment cause of action.
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comments. Further, Patrick claimed that Hughes’ reassignment of her to different
posts constituted retaliation for reporting the harassment. Finally, Patrick alleged
that not only was Moore’s investigation improperly conducted, but Moore and
Warden Stovall were liable for Hughes’ conduct by failing to take proper action to
prevent or resolve it.
On October 9, 2009, the trial court granted Appellees’ motion for
summary judgment, finding:
There simply is no factual basis here for one who admits
she did not want an alleged tortfeasor terminated, did not
follow the standard procedures as outlined by the
institution for sexual harassment and then voluntarily quit
before the newly-hired warden could respond to her
report. Additionally, the comments, if made, were not
about Ms. Patrick, were not initially reported, and were
made over the course of a short period of time. Once the
comments were reported, action was taken, and
afterwards, by Ms. Patrick’s own admission, Capt.
Hughes was overly nice. Thereafter Ms. Patrick quit and
obtained other employment. Furthermore, it is
undisputed . . . that the transfers of position of Ms.
Patrick were within her job description and were under
different superior officers. Therefore, the court does not
see how any reasonable jury could conclude that the
conduct complained of herein was severe and pervasive.
While this Court does not condone the actions of Capt.
Hughes, it agrees . . . that these were indeed merely
offensive utterances, and Ms. Patrick’s action in not
reporting these matters indicates that she felt the same
way. Most importantly, once it was reported and
investigated, the conduct stopped, and Ms. Patrick did
not wait for a satisfactory resolution from the newlyappointed warden . . . .
Patrick now appeals to this Court as a matter of right.
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The proper standard of review in an appeal from a summary judgment
is concisely set forth in Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App.
2001) as follows:
The standard of review on appeal when a trial court
grants a motion for 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.” The trial
court must view the evidence in the light most favorable
to the nonmoving party, and summary judgment should
be granted only if it appears impossible that the
nonmoving party will be able to produce evidence at trial
warranting a judgment in his favor. The moving party
bears the initial burden of showing that no genuine issue
of material fact exists, and then the burden shifts to the
party opposing summary judgment to present “at least
some affirmative evidence showing that there is a
genuine issue of material fact for trial.” (Citations
omitted).
See also 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 not render a summary judgment if there is any issue of material fact.”
Steelvest, Inc. v. Scansteel Serv Ctr, 807 S.W.2d 476, 480 (Ky. 1991). Because no
factual issues are involved and only legal issues are before the court on a motion
for summary judgment, we do not defer to the trial court and our review is de novo.
Hallahan v. Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004).
Patrick argues that the trial court erred in finding that no genuine
issues of material fact existed regarding her hostile work environment/sexual
harassment claim. In fact, citing to Kirkwood v. Courier Journal, 858 S.W.2d 194,
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198 (Ky. App. 1993), Patrick contends that “claims of discriminatory workplace
harassment are rarely dismissed where there is any colorable evidence of such
harassment.”
Consistent with Title VII of the 1964 Federal Civil Rights Act, 42
U.S.C. § 2000e-2(a)(1), the Kentucky Civil Rights Act prohibits sexual harassment
in the workplace that creates “a hostile or abusive work environment.” Ammerman
v. Bd. of Educ., Nicholas County, 30 S.W.3d 793, 798 (Ky. 2000). However, in
order for a sexual harassment claim based upon a hostile or abusive work
environment to be actionable, it must be sufficiently severe or pervasive so as to
alter the conditions of the plaintiff's employment and create an abusive working
environment. Meritor Saving Bank v. Vinson , 477 U.S. 57, 106 S.Ct. 2399, 91
L.Ed.2d 49 (1986). As explained by our Supreme Court in Ammerman v. Bd. of
Educ., Nicholas County, 30 S.W.3d at 798:
[H]ostile environment discrimination exists “when the
workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive
to alter the conditions of the victim's employment and
create an abusive working environment.” [Williams v.
General Motors Corp., 187 F.3d 553, 560 (6th Cir.
1999)( Citing Harris v. Forklift Sys., 510 U.S. 17, 21,
114 S.Ct. 367, 126 L.Ed.2d 295 (1993))]. Moreover, the
“incidents must be more than episodic; they must be
sufficiently continuous and concerted in order to be
deemed pervasive.” [Carrero v. New York City Hous.
Auth., 890 F.2d 569, 577 (2d Cir. 1989)].
Furthermore, the harassment must also be both objectively and subjectively
offensive as determined by “looking at all the circumstances.” Harris v. Forklift
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Sys., 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993). These
circumstances may include “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance.” Id.
As the United States Supreme Court has observed, “offhand
comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in ‘the terms and conditions of employment.’” Faragher
v. City of Boca Raton, 524 U.S. 775, 786-87, 118 S.Ct. 2275, 2283, 141 L.Ed.2d
662 (1998).
These 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.
We agree with the trial court herein that Hughes’ conduct was not, as
a matter of law, sufficiently severe or pervasive so as to alter the conditions of
Patrick’s employment. Cf. Kirkwood, 858 S.W.2d 194. To be sure, Hughes’
comments were inappropriate, unprofessional, and undoubtedly made Patrick
uncomfortable. Nevertheless, under the objective standard mandated by Faragher,
524 U.S. at 787, 118 S.Ct. at 2283, they simply did not create an actionable hostile
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work environment. No allegations of physical contact or threats were alleged by
Patrick. Furthermore, there is no evidence in the record that Hughes’ actions
interfered with Patrick's work performance. In fact, it is undisputed that Patrick
did not even report any harassment until August 18, 2004, after which no further
incidents occurred.
Patrick next argues that the trial court erred in finding that neither
Hughes nor CCA retaliated against her after she filed her report against Hughes.
Patrick claims that after reporting Hughes’ conduct, Patrick was frequently moved
from her usual assignments to different less desirable locations. Again, we
disagree.
KRS 344.280(1) makes it unlawful for one or more persons “[t]o
retaliate or discriminate in any manner against a person ... because he has made a
charge, filed a complaint, testified, assisted or participated in any manner in any
investigation, proceeding, or hearing under the chapter.” (Emphasis added).
Unlawful retaliation under the KCRA is consistent with the interpretation of
unlawful retaliation under federal law. Under federal law, a “plaintiff must
identify a materially adverse change in the terms and conditions of his employment
to state a claim for retaliation under Title VII.” Hollins v. Atlantic Co., Inc., 188
F.3d 652, 662 (6th Cir. 1999).
A materially adverse change in the terms and conditions
of employment must be more disruptive than a mere
inconvenience or an alteration of job responsibilities. A
materially adverse change might be indicated by a
termination of employment, a demotion evidenced by a
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decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished
material responsibilities, or other indices that might be
unique to a particular situation.
Id. (Quoting Crady v. Liberty Nat’l Bank & Trust Co. of Indiana, 993 F.2d 132,
136 (7th Cir. 1993). Further, a plaintiff must show that “a reasonable employee
would have found the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington Northern & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006) (Internal
quotations omitted).
Herein, Patrick failed to demonstrate that the assignment to different
posts within LAC were materially adverse. The evidence established that Patrick
was reassigned because two other employees had medical restrictions. Neither her
duties nor her pay ever changed. In fact, it appears that each time Patrick was
reassigned, it was simply to a different wing of the same cell block. Moreover, the
institutional records indicate that Patrick was moved twice as often by other
supervisors as she was by Hughes. We simply cannot conclude that “a reasonable
employee would have found the challenged action materially adverse” so as to
support a finding of retaliation.
Finally, we find no merit in Patrick’s claim that CCA is not entitled to
an affirmative defense because it took adverse employment action through Hughes.
Citing to Burlington Indust., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141
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L.Ed.2d 633 (1998), Patrick essentially argues that CCA is vicariously liable for
Hughes’ actions because it did not exercise reasonable care to prevent either the
sexually harassing behavior or the retaliation.
“When no tangible employment action is taken, 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 preventive or corrective opportunities provided by the employer or to avoid
harm otherwise.” Id. (emphasis omitted).
We must agree with the trial court that CCA had standard procedures
outlined for sexual harassment and that Patrick failed to timely avail herself of
such. Further, once the report was made in August 2004, an immediate
investigation was undertaken and the inappropriate conduct ceased. By her own
admission, Patrick voluntarily quit her employment with CCA before Warden
Stovall was given the opportunity to meet and discuss the complaint with her.
Accordingly, we are of the opinion that the trial court correctly found that as a
matter of law, Patrick could not prevail on her claims against any of the Appellees
herein. As such, summary judgment was proper.
The order of the Lee Circuit Court grating summary judgment in favor
of Appellees herein is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Teddy L. Flynt
Salyersville, Kentucky
G. Edward Henry, II
Lexington, Kentucky
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