WELLS (JERRY) VS. THE CITY OF BOWLING GREEN
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RENDERED: APRIL 15, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001232-MR
JERRY WELLS
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 07-CI-01778
THE CITY OF BOWLING GREEN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; SHAKE,1 SENIOR JUDGE.
NICKELL, JUDGE: Jerry Wells appeals the Warren Circuit Court’s award of
summary judgment to the City of Bowling Green on his claims of age
discrimination and fraud. Following review of the record, the briefs and the law,
we affirm.
1
Senior Judge Ann O'Malley Shake 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.
Wells was a career police officer with the City of Bowling Green
Police Department. He joined the force in 1976 as a patrolman and retired on
October 30, 2006, after serving a stint as interim police chief. His dream, however,
was to end his career as the permanent police chief.
In May of 2006, Bill Waltrip, the Bowling Green police chief, and
Gerry Brown, the Bowling Green fire chief, announced to the city commission
their intention to retire. Immediately thereafter, the city commission went into
closed session where they discussed the process for hiring successors for Waltrip
and Brown. They decided to use the same process that had been used in 2005 to
select a new city manager—an interim chief would be appointed who would not be
eligible to apply for the permanent position. This selection process was not
approved by a formal vote during or after the closed session. Furthermore, the
prohibition on the interim appointee being eligible for the permanent position does
not appear in the written protocol for selecting a new police chief.
At the time Waltrip announced his intention to retire, Wells was one
of two deputy police chiefs on the force. City Manager Kevin DeFebbo asked
Waltrip to recommend someone to serve as interim police chief and Waltrip asked
Wells whether he wanted the position until appointment of the permanent police
chief. Before accepting the interim position, Wells had two issues with which to
wrestle: 1) he knew the interim chief was ineligible to apply for the permanent
police chief position; and 2) Bowling Green has a policy called the “57 Rule”
which requires all hazardous-duty personnel to retire during the month they turn 57
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years of age.2 Having been born in December of 1950, Wells would be required to
retire upon turning fifty-seven in December of 2007.
In June of 2006, Wells spoke with DeFebbo about the interim position
and asked for the rationale for not allowing the interim police chief to compete for
the permanent position. DeFebbo, according to Wells’ answers to interrogatories,
responded, “Well you know anytime this kind of decision is made in regard to a
new chief of police, the idea of continuity and stability is key to a city manager.
You want people who can give service over a period of time and that needs to be
eight to ten years. Now of course you, well you know. . .” and then changed the
subject.3 After mulling over the decision, Wells accepted the appointment as
interim police chief. Wells did not apply for the permanent chief position because
he was too busy with his doctoral candidate studies.
The City appointed Doug Hawkins as permanent police chief effective
November 1, 2006. Wells could have remained on the force through December of
2007, but chose to retire at the end of October of 2006. According to his
deposition, Wells never mentioned to any City official that he thought he was
excluded from applying for the permanent police chief position because of his age.
A year after retiring, Wells filed a verified complaint
against the City alleging: 1) age discrimination because
he was fifty-five years of age at the time of his
2
The “57 Rule” is not being challenged in this appeal.
3
Wells took this to be a reference to the City’s “57 Rule.” DeFebbo has testified it was a
response to “Wells’ inquiry regarding the (sic) DeFebbo’s ability or desire to have the City
change the 57 Rule.”
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appointment as interim chief and DeFebbo had said he
would only consider candidates for the permanent police
chief position who could serve eight to ten years; and, 2)
violation of KRS 344.300 and city ordinance BG80-63,
both of which prohibit discrimination based upon age.
On July 22, 2009, with leave of court, Wells filed an
amended complaint reiterating his two original claims
and alleging a new fraud claim based upon the City
having knowingly “falsely represented material facts to
[Wells] regarding the decisional process for the
appointment of an interim police chief and/or the
promotional process for the selection of a permanent
police chief for the City of Bowling Green.” The City
moved to dismiss the amended complaint under CR4
12.02(f) because Wells failed to plead fraud with
specificity as required by CR 9.02. Thereafter, Wells
supplemented his first amended complaint with a more
definite statement alleging: the City of Bowling Green,
acting by and through its designated officials, falsely and
fraudulently represented to the Plaintiff that the person
who would assume the position of interim chief for the
Bowling Green Police Department would not be eligible
for appointment to the position of police chief on a
permanent basis.
Wells further alleged this procedure was “illegally adopted” during the
commission’s closed session, it was contrary to the written promotional procedure,
it was conveyed to Wells “to dissuade him from seeking the position of police
chief[,]” that Wells detrimentally relied upon the City’s misrepresentations, and as
a result suffered punitive and compensatory damages.
After the taking of several depositions, the City moved for summary
judgment on May 28, 2010. In its supporting memorandum, the City alleged Wells
had no direct proof of age discrimination and failed to develop a prima facie case
4
Kentucky Rules of Civil Procedure.
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of age discrimination as required by Kentucky Center for the Arts v. Handley, 827
S.W.2d 697, 699 (Ky. App. 1991) which explains:
[a]n employment discrimination action unfolds in three
stages. First, the plaintiff must make a prima facie case
of discrimination by offering proof that, 1) she is a
member of a protected class, 2) she is qualified for and
applied for an available position, 3) she did not receive
the job, and 4) the position remained open and the
employer sought other applicants. McDonnell-Douglas
Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). Second, the employer must then
articulate a “legitimate nondiscriminatory” reason for its
action. Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Third, once such a reason is given, it is incumbent on the
employee to demonstrate that the stated reason is merely
a pretext to cover the actual discrimination. Id. at 256,
101 S.Ct. at 1095.
(footnote omitted). The City argued Wells was unqualified for the permanent
police chief position because he had voluntarily disqualified himself by accepting
the appointment as interim chief of police and he could not prove a prima facie
case of age discrimination because he chose not to apply for the permanent
position. Citing Wanger v. G.A. Gray Co., 872 F.2d 142, 145 (6th Cir. 1989), the
City argued Wells’ failure to apply for the position negated his attempt at
establishing a prima facie case of age discrimination. Under Harker v. Federal
Land Bank of Louisville, 679 S.W.2d 226, 229 (Ky. 1984), the City argued that to
withstand the motion for summary judgment, in the context of an age
discrimination allegation, Wells had to offer proof of “‘cold hard facts creating an
inference showing age discrimination was a determining factor’ in the discharge.”
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Moreover, Wells admitted in his deposition that he did not apply for the permanent
position because he was too busy with his doctoral candidate studies, not because
he had been led to believe he would not be considered for the job due to his age.
The City also argued summary judgment was appropriate on the
alleged violation of the City ordinance because it does not provide for civil
remedies. Finally, the City argued summary judgment was appropriate on the
fraud claim because it had acted precisely as it had indicated it would—it said it
would not consider the interim appointee for the permanent position and it did not.
Wells filed a response opposing the motion for summary judgment.
He argued the city commission had changed the procedure for selecting the
permanent chief during a closed session and had failed to ratify that change with a
public vote. He further argued there was an issue about DeFebbo’s selection
criteria—he claimed DeFebbo’s statement that he would only consider applicants
who could serve eight to ten years was the equivalent of age discrimination since
Wells would have turned fifty-seven in December of 2007 and would have been
required to retire at that time under the City’s “57 Rule.”
The motion for summary judgment was argued on June 7, 2010. On
June 24, 2010, the trial court entered a four-page order granting summary
judgment to the City. The trial court found Wells could not establish a prima facie
case of age discrimination because he did not apply for the permanent position of
police chief—a critical element of the McDonnell Douglas burden-shifting test.
The trial court went on to say that even if DeFebbo had told Wells he would only
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consider candidates who could serve a minimum of eight to ten years, such a
statement would not constitute evidence of age discrimination because
“employment decisions motivated by factors other than age (such as retirement
eligibility, salary, or seniority), even when such factors correlate with age, do not
constitute age discrimination.” EEOC v. McDonnell Douglas Corp., 191 F.3d 948,
951 (8th Cir. 1999). Additional support for the trial court’s ruling is found in
Hazen Paper Company v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 1706-07,
123 L.Ed.2d 338 (1993), which holds:
[w]hen the employer's decision is wholly motivated by
factors other than age, the problem of inaccurate and
stigmatizing stereotypes disappears. This is true even if
the motivating factor is correlated with age, as pension
status typically is. . . . Yet an employee's age is
analytically distinct from his years of service. . . .
Because age and years of service are analytically distinct,
an employer can take account of one while ignoring the
other, and thus it is incorrect to say that a decision based
on years of service is necessarily “age based.”
The trial court also found no support for Wells’ claim of fraud
because he “knowingly accepted the interim position on the condition that he
would no longer be considered for the permanent police chief position.” The court
found the City’s failure to formally ratify this change did not mislead Wells. It is
from this order that Wells appeals.
In reviewing a grant of summary judgment, we focus on “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.
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Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); CR 56.03. “[T]he proper function of
summary judgment is to terminate litigation when, as a matter of law, it appears
that it would be impossible for the respondent to produce evidence at the trial
warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr, Inc.,
807 S.W.2d 476, 480 (Ky. 1991).
Applying the Steelvest standard, we conclude summary judgment was
properly granted to the City because Wells never applied for the permanent
position of police chief, a required showing under McDonnell Douglas Corp. v.
Green, 411 U.S. at 802, 93 S.Ct. at 1824. Furthermore, Wells admitted during his
deposition that he chose not to apply for the permanent position because he was
too busy focusing on his doctoral studies, not because he had been convinced that
he was too old to apply or that he was ineligible to apply because he accepted the
position of interim chief. Hence, there were no genuine issues of material fact, and
Wells could not, and did not, carry his burden.
Finally, Wells could not prevail on his fraud claim. First, the City had
indicated the person chosen to serve as interim police chief would not be
considered for the permanent position and he was not. Thus, as the trial court
stated in its opinion, the City did not mislead Wells. Second, although not
mentioned by the trial court, to challenge the commission’s modification of the
hiring procedure for lack of a public vote, Wells should have followed the steps
outlined in KRS 61.846(1) which begins with submission of a written complaint to
the commission proposing a remedy for the alleged error. This process was not
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followed. While exhaustion of administrative remedies is not required prior to the
filing of suit, KRS 61.848(2) establishes the procedure and timeline which must be
followed in filing suit and which were not followed in this case.
For the foregoing reasons, the order of the Warren Circuit Court
awarding summary judgment to the City is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Matthew J. Baker
Bowling Green, Kentucky
Greg N. Stivers
Scott D. Laufenberg
Bowling Green, Kentucky
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