MENDEZ (FULLMER A.) VS. UNIVERSITY OF KENTUCKY BOARD OF TRUSTEES, ET AL.
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RENDERED: AUGUST 12, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001244-MR
AND
NO. 2010-CA-001311-MR
FULLMER A. MENDEZ
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 07-CI-04398
UNIVERSITY OF KENTUCKY BOARD
OF TRUSTEES; AND BAMBANG
SUTARDJO
APPELLEES/CROSS-APPELLANTS
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; CLAYTON AND CAPERTON, JUDGES.
CLAYTON, JUDGE: Fullmer A. Mendez appeals from the Fayette Circuit
Court’s trial judgment pursuant to a jury verdict, entered on May 12, 2010, in favor
of University of Kentucky Board of Trustees (hereinafter “the Board”) and
Bambang Sutardjo. This action was filed under Kentucky Revised Statutes (KRS)
Chapter 344, the Kentucky Civil Rights Act. Mendez claims that his job
termination constituted unlawful religious discrimination. He also appeals the trial
court’s order, which denied his Kentucky Rules of Civil Procedure (CR) 59.01
motion for a new trial, which was entered on June 15, 2010. In addition, the Board
and Sutardjo cross-appeal on the grounds that the trial court erred in failing to
grant summary judgment on all issues and erred in instructing the jury. For the
reasons which follow, we affirm the decisions of the Fayette Circuit Court.
FACTUAL AND PROCEDURAL BACKGROUND
Mendez was originally from the Dominican Republic and moved to
Lexington, Kentucky, in 1991. In October 2003, Mendez began his employment
as a temporary computer technician in the University of Kentucky’s College of
Health Sciences. He was hired under the University’s Student Temporary
Employment Program (hereinafter “STEPS”). At the time of his hiring, he
acknowledged that he received a copy of the handbook for the University of
Kentucky (hereinafter “UK”) and understood his responsibility to read and
understand its provisions. The acknowledgement specifically stated that Mendez
was considered an “at will” employee and subject to layoff or termination in
accordance with University policies and procedures.
Thereafter, in 2005, Sutardjo became Mendez’s supervisor at the
College of Health Sciences. Sutardjo is originally from Indonesia. He and
Mendez knew each other because they had previously worked together for about a
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year-and-a-half at Kentucky Trade Computers. During that time, they had an
excellent working relationship and were friends outside of work.
Shortly after Sutardjo became Mendez’s supervisor at the College of
Health Sciences, Mendez tendered his resignation claiming that he needed a higher
paying position. Sutardjo discouraged Mendez from leaving and was instrumental
in Mendez obtaining a raise. After receiving the pay raise, Mendez rescinded his
letter of resignation.
The precipitating event leading up to the cessation of Mendez’s
employment at the College of Health Sciences occurred on March 27, 2006. One
morning he was assigned to work on the computer of Dr. Susan Effgen, a professor
at the College. She had experienced repeated problems with her computer. After
looking at the computer, Mendez decided that he could not fix it until the next day.
He informed her and went to lunch. When he returned from lunch, Sutardjo, as his
supervisor, asked about the repair of the computer. After Mendez told him that the
computer would not be fixed until the next day, Sutardjo told him to finish the
work on the computer now because Mendez did not have the authority to
determine turnaround time. Mendez replied that he was not trying to create new
policy. Then, Sutardjo said he did not want Mendez to work in the department any
longer.
But Mendez proffers a different reason for his dismissal. He
maintains that the reason for his termination was not based on his failure to work
on Effgen’s computer in a timely fashion, but rather, his termination resulted from
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a disagreement with Sutardjo, which Mendez believes was the cause of his
termination. The parties’ religious backgrounds are as follows: Mendez was born
and raised Catholic, and Sutardjo was a member of the Islamic religion. Mendez
knew Sutardjo’s religion because at one time he had been invited to Sutardjo’s
home for dinner at the conclusion of Ramadan. Sutardjo intimated that while he
was not sure of Mendez’s religious beliefs, he thought that he was Christian or
Catholic.
According to Mendez’s testimony, although he does not cite to the
record in providing these details, a few weeks before his assignment ended,
Sutardjo and Dr. Maria Boosalis, the Director of the Department of Clinical
Nutrition, were having a discussion concerning the publication of cartoons about
the prophet Mohammed in the Danish press, and the protests in Europe that
occurred after the publication of the cartoons. Mendez claims that Sutardjo asked
his opinion about it. Mendez says that he responded that the Danish press was free
to publish what they wished. Mendez then describes Sutardjo as being upset
during the conversation, but he acknowledged that no mention of either party’s
religion was made, nor did either party attack the other during the conversation.
After the discussion, again without citation to the record, Mendez stated that the
relationship between them soured, and their interactions were only about business.
Yet, Sutardjo did not increase Mendez’s workload, although he required Mendez to
complete his work assignments within a strict time period. Mendez, however, did
not find the requirement to be unreasonable.
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Hence, Mendez’s employment ended in April 2006. Following his
termination from his temporary assignment at the College of Health Sciences,
Mendez did not go to UK’s Human Resources Department to inquire about
reassignment. STEPS protocol is for an employee, upon completion of a
temporary assignment, to return for reassignment. Therefore, Mendez was
considered to have voluntarily left. In fact, Sutardjo’s evaluation of Mendez
indicated that Mendez’s assignment was complete and that Sutardjo would
recommend Mendez for other assignments. In July 2006, Mendez applied for
another position at the University. When he was a finalist for the position, the
University could not reach him. Apparently, at that time, Mendez’s mother was ill,
and he was in the Dominican Republic caring for her until January 2007.
On September 17, 2007, Mendez filed a complaint in Fayette County,
which alleged religious discrimination in violation of KRS 344.040 and wrongful
discharge based on the violation of public policy found in Kentucky Constitution
(Ky. Const.) §§ 1, 5, and 8. On June 1, 2009, the Board and Sutardjo filed a
motion for summary judgment, which the trial court denied. On April 16, 2010,
the Board and Sutardjo filed a renewed motion for summary judgment and asked
for the court’s reasoning as to its denial of the original motion. On April 28, 2010,
the trial court issued another order granting the summary judgment motion as to
the Board of Trustees on the wrongful discharge claims, but denied the motion as it
related to religious discrimination. The case proceeded to trial on April 26 and 27,
2010, and culminated in a jury verdict for Sutardjo.
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Mendez filed a motion for a new trial, alleging the jury instructions
were improper. The trial court denied the motion. Mendez now appeals the
judgment and jury verdict as well as the order denying his motion for a new trial.
In addition, the Board and Sutardjo cross-appeal from the judgment and jury
verdict.
ISSUES
In his appeal, Mendez asserts that the trial court erred when it
provided incorrect jury instructions, failed to instruct the jury that he was entitled
to lost future wages, and granted the Board and Sutardjo’s summary judgment on
the wrongful discharge claims. The Board and Sutardjo counter that the jury
verdict should be affirmed but, if not, the trial court erred when it denied the
summary judgment motion on the religious discrimination claim and erred in its
jury instructions. We begin our analysis with the standard of review for erroneous
jury instructions.
STANDARD OF REVIEW
Because alleged errors regarding jury instructions are considered
questions of law, we examine them under a de novo standard of review. Reece v.
Dixie Warehouse and Cartage Co., 188 S.W.3d 440, 449 (Ky. App. 2006).
Additionally, “[i]nstructions must be based upon the evidence and they must
properly and intelligibly state the law.” Howard v. Com., 618 S.W.2d 177, 178
(Ky. 1981). The instructions are reviewed “as a whole to determine whether they
adequately inform the jury of relevant considerations and provide a basis in law for
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the jury to reach its decision.” Gibson v. City of Louisville, 336 F.3d 511, 512 (6th
Cir. 2003), quoting Vance v. Spencer County Public Sch. Dist., 231 F.3d 253, 263
(6th Cir. 2000).
Guidance concerning appellate review of jury instructions has also
been provided by the Kentucky Supreme Court:
The rule is that generally an erroneous instruction
is presumed to be prejudicial to appellant, and the burden
is upon appellee to show affirmatively from the record
that no prejudice resulted; and when the appellate court
cannot determine from the record that the verdict was not
influenced by the erroneous instruction, the judgment
will be reversed.
Drury v. Spalding, 812 S.W.2d 713, 717 (Ky. 1991), quoting Prichard v. Kitchen,
242 S.W.2d 988, 992 (Ky. 1951). Clearly, the purpose of jury instructions is to
give direction to the jury in their deliberations so that the members are able to
arrive at a correct verdict. Thus, “[i]f the statements of law contained in the
instructions are substantially correct, they will not be condemned as prejudicial
unless they are calculated to mislead the jury.” Ballback’s Adm’r v. Boland–
Maloney Lumber Co., 306 Ky. 647, 652–53, 208 S.W.2d 940, 943 (Ky. 1948).
With this standard in mind, we turn to the issues of the case.
I.
Jury Instructions
The first error alleged by Mendez is that the trial court erred in
instructing the jury. To begin, we observe that Mendez brings this action under
KRS Chapter 344, the Kentucky Civil Rights Act. The pertinent portions of the
statute are as follows:
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(1) It is an unlawful practice for an employer:
(a) To fail or refuse to hire, or to discharge any
individual, or otherwise to discriminate against an
individual with respect to compensation, terms,
conditions, or privileges of employment, because
of the individual’s . . . religion . . . .
(b) To limit, segregate, or classify employees in any
way which would deprive or tend to deprive an
individual of employment opportunities or
otherwise adversely affect status as an employee,
because of the individual’s . . . religion . . . .
KRS 344.040(1).
Unquestionably, the Kentucky Civil Rights Act “KRS 344.040
prohibits religious discrimination by employers.” Irwin v. Aubrey, 92 S.W.3d 87,
89 (Ky. App. 2001), And, as noted in Irwin, under Kentucky jurisprudence the
necessary elements to establish a prima facie case of religious discrimination were
set forth in Kentucky Comm’n on Human Rights v. Lesco Mfg. & Design Co., Inc.,
736 S.W.2d 361 (Ky. 1987). Therein, the court held that, “one must prove that (1)
he has a bona fide belief that compliance with an employment requirement is
contrary to his religious faith; (2) he informed his employer about the conflict; and
(3) he was discharged because of his refusal to comply with the employment
requirement.” Id. at 363. Further, after a prima facie case has been established by
the employee, the employer must then prove that an accommodation to the
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employee’s beliefs and practices will result in an undue hardship on the conduct of
the employer’s business. Id. at 364.
The case at hand does not fit exactly under this paradigm, but Mendez
alleges that he was subjected to religious discrimination by Sutardjo and, hence,
his employer. He has given no information that compliance with his religion
conflicted with any employment requirement or that he informed his employer
concerning the conflict. And, since Mendez asked for no accommodations, that
factor, too, has not been implicated here. Finally, while it is true that Mendez was
discharged from his temporary position, nothing about this discharge has been
shown to relate to the requirements of his job or, in fact, have any relationship to
religion at all. In fact, Mendez’s proof of discrimination is merely his claim that
his discharge was related to a discussion with Sutardjo about Danish cartoons
depicting the prophet Mohammed.
Notwithstanding Mendez’s apparent failure to establish a prima facie
case of religious discrimination, he maintains that this cause of action relies on a
“mixed-motive” analysis. The “mixed-motive” theory is primarily based on the
federal law found in 42 U.S.C. § 2000e-2(m), which states:
(m) Impermissible consideration of race, color, religion,
sex, or national origin in employment practices[:]Except
as otherwise provided in this subchapter, an unlawful
employment practice is established when the
complaining party demonstrates that race, color, religion,
sex, or national origin was a motivating factor for any
employment practice, even though other factors also
motivated the practice.
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The plain meaning of this section of Title VII, as it impacts Mendez, is to allow
him to demonstrate that the Board and Sutardjo engaged in an unlawful
employment practice and that religion was a motivating factor for it, even though
other factors might have supported the adverse employment practice.
To clarify, under federal law, a mixed-motive case is one where both
unlawful and lawful reasons affected the employment decision. Wright v. Murray
Guard, Inc., 455 F.3d 702, 711 (6th Cir. 2006). Similarly stated, in Title VII cases
the mixed-motive approach applies when a plaintiff contends that an adverse
employment decision was made for both legitimate and discriminatory reasons. In
other words, the mixed-motive analysis permits a finding of liability where the
employer is motivated by both unlawful considerations and legitimate reasons.
Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84
(2003).
Here, for several reasons which shall be elucidated, Mendez did not
establish that the jury instructions used by the court in this case of alleged “mixedmotive” analysis were not representative of the law and, thus, incorrect. Initially,
at no time in the complaint does Mendez ascribe the cause of action in his religious
discrimination case as based on religious discrimination in the context of a mixedmotive analysis. Generally, our Court will not consider a claim of error not first
presented to the circuit court. Akers v. Floyd County Fiscal Court, 556 S.W.2d
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146, 152 (Ky. 1977). Furthermore, plaintiffs must give proper notice when
bringing mixed-motive claims. Hashem-Younes v. Danou Enterprises Inc., 311
Fed. Appx. 777, 779, 2009 WL 383728 (6th Cir. 2009). Because Mendez has not
given notice that the case is one involving “mixed motives,” it is not necessary for
us to even consider whether the jury instructions properly stated the “mixedmotive” analysis.
Mendez never argues that his termination was based on both lawful
and unlawful reasons. Finally, if Mendez was bringing a mixed-motive case, he
does not concede that damages are limited under “mixed-motive” analysis. Under
Title VII, a plaintiff asserting a mixed-motive claim is entitled only to declaratory
relief, limited injunctive relief, and attorney fees and costs where the employer
demonstrates that it would have taken the same employment action in the absence
of an impermissible motivating factor. 42 U.S.C. § 2000e-5(g)(2)(B). Certainly,
Mendez has requested additional damages beyond the ones allowed under a
“mixed-motive” case.
Second, Mendez’s arguments are based on the contention that the
Kentucky Civil Rights Act is interpreted like federal law. He cites KRS
344.020(1)(a) to support this proposition. For the most part, Kentucky
jurisprudence has provided that, “[t]he Kentucky [Civil Rights] Act is similar to
Title VII . . . and should be interpreted consistently with federal law.” See
Ammerman v. Bd. of Educ., of Nicholas County, 30 S.W.3d 793, 797-98 (Ky.
2000); see also Jefferson County v. Zaring, 91 S.W.3d 583, 586 (Ky. 2002).
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But, the Kentucky Civil Rights Act does not contain the language
found in 42 U.S.C. § 2000e-2(m). And, as commented by the Kentucky Supreme
Court in Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 821 (Ky. 1992),
when the “language tracks the federal law [it] should be interpreted consonant with
federal interpretation” of the Civil Rights Act of 1991. Significantly, however, this
particular language has not been incorporated into the Kentucky Civil Rights Act
and, thus, the analysis does not necessarily have to rely on federal law.
Furthermore, it has been held that, “[m]ixed-motive theories of
liability are always improper in suits brought under statutes without language
comparable to the Civil Rights Act’s authorization of claims that an improper
consideration was ‘a motivating factor’ for the contested action.” See Serafinn v.
Local 722, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, 597 F.3d 908, 915, 2010 WL 851411 (7th Cir. 2010).
Therefore, given that Kentucky has not specifically adopted the “mixed-motive”
language found in 42 U.S.C. § 2000e-2(m), we shall review this case according to
Kentucky jurisprudence and its reference to “mixed-motive” causes of action.
The primary case discussing “mixed-motive” cases in Kentucky is the
aforementioned Meyers v. Chapman Printing. Therein, the Kentucky Supreme
Court describes the “mixed-motive” analysis as one that provides the party alleging
discrimination must show that the discriminatory motive was “a contributing and
essential factor” and not whether the employer’s action was taken “solely because
of” the discrimination. Meyers, 840 S.W.2d at 823. The Court interpreted the
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phrase “because of” in KRS 344.040 to mean “substantial factor,” “contributing
and essential factor,” or “essential ingredient,” and not “sole cause.” Id. at 823824 (Ky. 1992); see also First Property Mgmt. Corp. v. Zarebidaki, 867 S.W.2d
185, 187-88 (Ky. 1993).
Having now highlighted the relevant law for this cause of action, we
will examine the pertinent jury instructions. Before doing so, however, we
examine requirements for jury instructions in general. In instructing the trial jury,
the trial court need only set forth essentials for the jury in a “bare bones” fashion.
Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005). “The Kentucky practice of
‘bare bones’ instructions applies to all litigation including civil rights cases.”
Lumpkins ex rel. Lumpkins v. City of Louisville, 157 S.W.3d 601, 605 (Ky. 2005).
Additionally, the jury instructions do not need elaborate detail but must have the
proper balance in providing enough information so that the jury is fully aware of
the respective legal duties of the parties. Olfice, 173 S.W.3d at 229.
Below are the jury instructions in question:
INSTRUCTION NO. 2
The law in Kentucky provides that it is an unlawful
practice for an employer to fail or refuse to hire, or to
discharge any individual or otherwise discriminate
against an individual with respect to compensation,
terms, conditions or privileges of employment, because
of the individual’s religion or because of a failure to
comply with their employer’s religion.
For the purposes of this case, the jury is instructed
that it is to consider the acts, conduct, religious beliefs
and values of Bambang Sutardjo to be the acts, conduct,
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religious beliefs and values of Defendant, Board of
Trustees of the University of Kentucky.
INTERROGATORY NO. 1
Are you satisfied from the evidence that Plaintiff Fullmer
Mendez declined to share the religious beliefs and values
of Defendant Sutardjo?
Nine of the twelve jurors answered “Yes” to this interrogatory.
INTERROGATORY NO. 2
If you answered “Yes” to Interrogatory No. 1, do you
further believe from the evidence that Plaintiff’s
declining to share Defendant Sutardjo’s religious beliefs
and values was a substantial and motivating factor in the
University of Kentucky’s decision to end his employment
at the College of Health Sciences in March 2006?
The jury was unanimous in answering “No” to this interrogatory.
As Mendez himself provides, the determining case in Kentucky
involving mixed-motive analysis is Meyers v. Chapman. But he maintains that
Meyers has been overruled and replaced by the analysis in Desert Palace. We
have already clarified that Desert Palace is not the prevailing case. Kentucky, to
date, has not incorporated the federal law, 42 U.S.C. § 2000e-2(m), from which
Desert Palace derives its holdings.
Given that we rely on Meyers, Mendez’s primary argument disputing
the jury instructions herein is the use of “substantial and motivating” factor as the
causal link between the alleged wrongful conduct and the injury claimed. In
Meyers, the discussion concerned the use of “but for.” The Court made clear that
“the ‘but for’ language used in the trial court’s instructions neither states nor
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implies ‘solely because.’ In the context used, ‘but for’ did not require a finding of
sole cause, but only of substantial factor.” Meyers, 840 S.W.2d at 823.
Later, the Court instructs that “[i]n Kentucky jury instructions do not
include evidentiary presumptions.” Id. at 824. And that, “the jury instructions
should be framed only to state what the jury must believe from the evidence in
order to return a verdict in favor of the party who bears the burden of proof.” Id.
The Court then discussed the exact language necessary in a discrimination case
wherein mixed-motive is implicated:
Thus, as the trial court properly decided, under Kentucky
procedure the “but for” phrase used to express the
causation issue was adequate. The “but for” test does not
require that the jury find sex discrimination was the
exclusive motive for the employee’s discharge, but only
that it was an essential ingredient. In a civil action
seeking damages for a discharge motivated by sex
discrimination, a “but for” test is a fair interpretation of
the substantial factor standard.
Id. Hence, the jury instructions used in Mendez’s case adequately captured the
essence of the legal requirements in Kentucky in situations involving
discrimination under the Kentucky Civil Rights Act.
Support for the above analysis is also found in First Property Mgmt.
Corp., 867 S.W.2d at 188. Therein, the Court said:
We recognize that in 1991 the Federal Civil Rights
Act was amended to make it clear, if it wasn’t already,
that the plaintiff need only show that one of the grounds
for discharge declared unlawful by the Federal Civil
Rights Act was “a motivating factor,” 42 U.S.C. §
2000e–2(m), which may (or may not) mean something
different than the standard stated by the U.S. Supreme
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Court in Price Waterhouse and by our Court in Meyers.
Thus, in cases under the Federal Civil Rights Act, if socalled “mixed motives” are involved, the plaintiff has
only the burden of showing an “unlawful employment
practice . . . was a motivating factor,” 42 U.S.C. §
2000e–2(m), whereupon the burden of proof shifts to the
defendant to avoid liability by showing that the same
employment decision would have been made “in the
absence of the impermissible motivating factor.” 42
U.S.C. § 2000e–5(g)(2)(B). This addresses the reasons
underlying the amendment to Title VII to further
articulate a cause of action “even though other factors
also motivated the [‘unlawful employment’] practice.” 42
U.S.C. § 2000e–2(m).
But the Court went on to say that:
These are rules for federal cases tried in equity and
without a jury. But cases under the Kentucky Civil
Rights Act are claims at law in Kentucky. In such cases,
the burden of coming forward with evidence may shift,
while the burden of persuasion remains with the plaintiff,
and we must fashion an instruction suited to the task.
Meyers, 840 S.W.2d at 824.
The instructions are reviewed as a whole to determine whether they adequately
inform the jury of relevant considerations and provide a basis in law for the jury to
reach its decision.
Here, where it was the jury’s task to determine whether unlawful
discrimination was the real reason for the adverse employment action, we believe
that the jury instructions were adequate and not prejudicial to Mendez. Although
Mendez provided no “mixed-motive” evidence, the Kentucky Civil Rights Act
does not distinguish between the proof necessary to prevail in a single or mixedmotive case. In Meyer, the Kentucky Supreme Court held that, as long as the jury
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was instructed that it need not decide that the protected classification - in this case
religion - was the exclusive cause of the discrimination but only that it was an
essential element, the jury instruction is acceptable. Meyers, 840 S.W.2d at 824.
The jury instructions here meet that requirement since they state “substantial and
motivating” but not “sole” or “only” factor for the adverse employment action.
In sum, we conclude that the jury instructions provided sufficient
guidance for the jury to decide the threshold issue of whether religious
discrimination was involved in Sutardjo’s decision to terminate Mendez. “[O]n an
appeal [the issue concerning] an allegedly erroneous [jury] instruction is whether
the instruction misstated the law.” Olfice, 173 S.W.3d at 229. But, the issue is not
which instructions best state the law. Id. at 230. Here, the instructions did not
misstate Kentucky law and provided sufficient guidance for the jury to make its
decision under the facts of this case.
Mendez’s reliance on Desert Palace, 539 U.S. 90, and White v.
Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008), are misplaced. Both cases
were decided under the Federal Civil Rights Act rather than the Kentucky Civil
Rights Act. Moreover, White addressed the issue of summary judgment in a
“mixed-motive” employment discrimination case and never makes reference to
jury instructions for such a case.
Lastly, Mendez spends a great deal of time contending that the
burden-shifting analysis under McDonnell Douglas Corp. v Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), has been abolished by Desert Palace. In
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fact, McDonnell Douglas and Desert Palace are both still credible authority in
discrimination cases. As was explained in Gibson, 336 F.3d at 514, regardless of
the framework used for presenting the evidence, the underlying substantive law
remains the same. Ultimately, the question is whether the defendant’s real reason
was unlawful discrimination. The inquiry at the fact-finding stage remains the
same whether a discriminatory reason for the adverse action exists (thereby
triggering the mixed-motive analysis) or whether a plaintiff must simply argue
against a defendant’s proffered nondiscriminatory reason. Id. We hold that it was
not an error for the trial court to provide the jury with these instructions.
Mendez also argues that, since the trial court utilized the “substantial
and motivating factor” language, he was unable to alter his trial strategy and is
entitled to a new trial. This argument is without merit. Mendez did not plead
“mixed motive” in his complaint but argued “mixed motive” in his response to the
Board’s motion for summary judgment. In that response, he cited Meyers and the
language of “substantial and motivating factor” which, he argued, was discarded.
However, Mendez was clearly aware of this language. The same language was
again stated in the Board and Sutardjo’s proposed jury instructions filed April 14,
2010, almost two weeks before the trial.
II.
Failure to Provide Damage Instruction on Lost Future
Damages
Mendez argues that the trial court erred in refusing to instruct the jury
that it could award him future lost earnings if he proved liability. The jury never
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had to consider a damage instruction because it did not find that Sutardjo had
discriminated on the basis of religion against Mendez. The issue is moot and no
reversible error was committed by the trial court.
III.
Summary Judgment on Wrongful Discharge Claims
Mendez argues that the trial court erred when it granted the Board and
Sutardjo’s motion for summary judgment on the wrongful discharge claims. A
review of a trial court’s entry of summary judgment is de novo. “The standard of
review on appeal of a 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.” Scifres v. Kraft, 916 S.W.2d 779,
781 (Ky. App. 1996). Finally, since “summary judgment involves only legal
questions and the existence of any disputed material issues of fact, an appellate
court need not defer to the trial court’s decision.” Lewis v. B & R Corp., 56
S.W.3d 432, 436 (Ky. App. 2001).
Kentucky law permits an employer to discharge an employee “for
good cause, for no cause, or for a cause that some might view as morally
indefensible.” Wymer v. JH Properties, Inc., 50 S.W.3d 195, 198 (Ky. 2001).
This is otherwise known as the terminable-at-will doctrine. In light of this
doctrine, Mendez may only establish a cause of action for wrongful discharge by
demonstrating that the termination was contrary to a fundamental and well-defined
public policy evidenced by a constitutional or statutory provision, Firestone
Textile Co. Div., Firestone Tire and Rubber Co. v. Meadows, 666 S.W.2d 730, 731
19
(Ky. 1983); or, that the termination violated fundamental public policy by showing
that the discharge was a direct result of his refusal to violate the law in the course
of his employment or stemmed from the exercise of a right conferred in a wellestablished legislative enactment, Boykins v. Housing Authority of Louisville, 842
S.W.2d 527, 530 (Ky. 1992).
Mendez claims that his discharge violated the public policy
established in Ky. Const. §§ 1 (Fourth), 5, and 8. Section 1 (Fourth) states that
Kentucky citizens shall have “[t]he right of freely communicating their thoughts
and opinions.” Section 5 states:
No preference shall ever be given by law to any religious
sect, society or denomination; nor to any particular creed,
mode of worship or system of ecclesiastical polity; nor
shall any person be compelled to attend any place of
worship, to contribute to the erection or maintenance of
any such place, or to the salary or support of any minister
of religion; nor shall any man be compelled to send his
child to any school to which he may be conscientiously
opposed; and the civil rights, privileges or capacities of
no person shall be taken away, or in anywise diminished
or enlarged, on account of his belief or disbelief of any
religious tenet, dogma or teaching. No human authority
shall, in any case whatever, control or interfere with the
rights of conscience.
Lastly, Ky. Const. § 8 states:
Printing presses shall be free to every person who
undertakes to examine the proceedings of the General
Assembly or any branch of government, and no law shall
ever be made to restrain the right thereof. Every person
may freely and fully speak, write and print on any
subject, being responsible for the abuse of that liberty.
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First, regarding Ky. Const. § 5, Mendez alleged in Count III of his
Complaint that the Board and Sutardjo wrongfully discharged him under this
section, that is, because of religious discrimination. Count I of the Complaint,
however, alleged religious discrimination pursuant to KRS 344.040. Thus,
Mendez’s complaint of religious discrimination was litigated under the statutory
provisions, and he has no cause of action under the Kentucky Constitution. As
noted in Grzyb v. Evans, “[w]here [a] statute both declares the unlawful act and
specifies the civil remedy available to the aggrieved party, the aggrieved party is
limited to the remedy provided by the statute.” 700 S.W.2d 399, 401 (Ky. 1985).
Although Grzyb has been distinguished by McDonald's Corp. v.
Ogborn, 309 S.W.3d 274, 285, 286 (Ky. App. 2009), that distinction has no
relevance to this case. Ogborn discussed common-law claims of premises liability,
negligence, and false imprisonment but observed that claims based on
discriminatory employment are subsumed under the Kentucky Civil Rights Act.
Id. Therefore, Mendez’s claim in Count III of the Complaint was determined when
the jury rendered its verdict under the Kentucky Civil Rights Act.
Now, turning to the argument that he was wrongfully discharged
under the public policy purview of the Kentucky Constitution exceptions to the
terminable-at-will doctrine, these exceptions were clarified in Grzyb. The Court
held in Grzyb that, besides the failure or refusal of the employee to violate a law in
the course of employment, which is not at issue here, the other exception is when a
discharge is the result of the employee’s exercise of a right conferred by a well21
established legislative enactment. “The decision of whether the public policy
asserted meets these criteria is a question of law for the court to decide, not a
question of fact.” Grzyb, 700 S.W.2d at 401. Thus, this decision appropriately
was determined by the trial court in its grant of summary judgment.
As noted by the Board and Sutardjo, claims related to the First
Amendment to the U. S. Constitution and Ky. Const. § 1 do not provide a cause of
action against private employers for wrongful discharge. Id. at 402. Hence, the
protections afforded Kentucky citizens under Ky. Const. § 1 are against
transgressions of the government and lawmaking bodies, and the constitutional
protection of Section I does not limit the employer’s right to discharge an
employee. Id.
This principle, however, depends on whether the employer was a
private or public employer. Mendez vehemently expresses that, since the
University of Kentucky raised sovereign and governmental immunity as a defense,
it has acknowledged that it is a governmental entity and not a private employer.
And, in fact, “KRS 164 establish[es] . . . that the University of Kentucky operates
under the direction and control of central state government and that it is funded
from the State Treasury.” See Withers v. University of Kentucky, 939 S.W.2d 340,
343 (Ky. 1997). Furthermore, Western Kentucky University has been held to be a
state agency because it performs the essential state function of educating state
citizens and receives money from the state treasury. Autry v. Western Kentucky
University, 219 S.W.3d 713, 717 (Ky. 2007).
22
But, even though the University of Kentucky may be considered a
public employer, the question remains as to the relationship between Ky. Const. §
§ 1, 8, and employment. In Baker v. Campbell County Bd. of Educ., 180 S.W.3d
479 (Ky. App. 2005), this Court was asked as a matter of first impression whether
to extend Firestone and its progeny to include a cause of action for retaliatory
failure to hire. Ultimately, as Mendez points out, it was concluded that no cause of
action for retaliatory failure to hire exists in Kentucky. Nevertheless, the analysis
reaffirmed that Ky. Const. § 1 does not in itself sustain a wrongful discharge
action. Notably, the Baker case also involved a public entity.
Reviewing the subject speech, that is, the conversation about the
publication of Danish cartoons which included caricatures of the prophet
Mohammed, under the purview of federal law and the interpretation of the First
Amendment, we still do not believe that it meets either exception to the
terminable-at-will doctrine. Mendez would first have to prove that this
conversation involved speech that was constitutionally protected. Leary v.
Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). Therein, the necessary elements are
described:
In order to state a retaliation claim under the First
Amendment a plaintiff must show that: “1) [she]
engaged in constitutionally protected speech; 2) [she]
was subjected to adverse action or was deprived of some
benefit; and 3) the protected speech was a ‘substantial’ or
a ‘motivating factor’ in the adverse action.”
Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891,
897 (6th Cir. 2001) (citing Mt. Healthy City Sch. Dist. Bd.
23
of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50
L.Ed.2d 471 (1977)).
Id. While we are aware that this case specifically addressed retaliation claims, it
remains relevant for its description of protected speech. It goes on to note that
public employees have even more standards to establish that the speech at issue is
constitutionally protected.
First, a public employee plaintiff must demonstrate that
the speech involved matters of public interest or concern.
Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048
(6th Cir. 2001), cert. denied, 537 U.S. 813, 123 S.Ct. 73,
154 L.Ed.2d 15 (2002). Second, the plaintiff must show
that her interest in addressing these matters of public
concern outweighs the interest of her employer “in
promoting the efficiency of the public services it
performs through its employees.” Pickering v. Bd. of
Educ. of Township High Sch. Dist. 205, 391 U.S. 563,
568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
Id. Mendez has not provided any support that the conversation, the nature of
which is disputed, was constitutionally protected, or that it caused an adverse
employment action, or even that it was a substantial and motivating factor in his
termination. This factor is bolstered even more by the fact that he has not shown
that the conversation in question concerned matters of public interest or that the
interest in addressing these matters outweighs the interest of his employer in
providing public service through its employees.
Nor can we ignore the fact that Mendez was hired as a temporary
employee, was subject to reassignment when his task was completed, and was still
eligible for other positions within the University. It can be argued that Mendez
24
was not discharged at all but abandoned his position. Thus, the trial court did not
err in ascertaining 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 judge was unable to ascertain that Mendez’s discharge fell
within the ambit of any exceptions to the terminable-at-will doctrine and, therefore,
in granting the motion for summary judgment reasoned that Mendez failed to
establish a claim cognizable under Kentucky law. We agree with this reasoning
and, hence, hold that the trial judge did not err in granting the motion for summary
judgment on Counts I and II of Mendez’s complaint.
IV.
Cross-appeal
Since we have upheld the judgment and jury verdict of the trial court
and determined that the trial court did not err in granting summary judgment on
Counts II and III of the Complaint, the issues raised by the Board and Sutardjo on
cross-appeal are moot and, therefore, we will not address them.
CONCLUSION
For the foregoing reasons, the judgment of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
25
BRIEFS AND ORAL ARGUMENT
FOR APPELLANT/CROSSAPPELLEE:
BRIEF AND ORAL ARGUMENT
FOR APPELLEES/CROSSAPPELLANTS:
William C. Jacobs
Lexington, Kentucky
Barbara A. Kriz
Lexington, Kentucky
26
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