STEVE YANCEY v. SHERIFF OF JEFFERSON COUNTY, KENTUCKYAnnotate this Case
FEBRUARY 20, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
AND NO. 2002-CA-000293-MR
APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 96-CI-02892
SHERIFF OF JEFFERSON COUNTY,
** ** ** ** **
DYCHE, JOHNSON, AND VANMETER, JUDGES.
This action began as one based on claims of
racial discrimination and harassment by multiple plaintiffs
against appellee, James Vaughn, who was Jefferson County Sheriff
from 1994 to 1999.
During the lower court proceedings, several
plaintiffs’ claims were dismissed in their entirety, leaving
The trial court granted partial summary
judgment on several of the remaining claims and bifurcated the
trials of the separate plaintiffs.
The matter before this Court involves the case of
appellant, Steve Yancey, who proceeded to trial on claims that
he was demoted based on race and that he was subjected to a
hostile work environment.1
After a seven-day trial, the jury
returned a verdict in Yancey’s favor awarding him $762,002.12.
Vaughn moved for judgment notwithstanding the verdict, which the
trial court granted.
The relevant background facts include that Yancey, an
African American, was hired as a deputy in 1993 by the then
Jefferson County Sheriff, Jim Greene.
experience as a police officer.
Yancey had no prior
Sheriff Greene, for reasons
unrelated to the present action, was removed from office and was
replaced by Bremer Ehrler.
Sheriff Ehrler promoted Yancey to
the rank of sergeant.
In 1994, Vaughn became Jefferson County Sheriff and
promoted Yancey immediately to the rank of lieutenant in the
criminal processing division.
so on the basis of race.
It was undisputed that Vaughn did
Vaughn’s testimony during the trial
included that he wanted to promote African Americans.
asked Ehrler who was promotable, and Ehrler recommended Yancey.
Vaughn had been advised that Yancey had completed the training
Although Yancey included evidence and arguments regarding disparate
treatment, a jury instruction was not given specifically for such.
at Eastern Kentucky University Police Academy, and Vaughn was
looking for persons with this training to promote.
The deposition testimony of Richard Lynch, the
Director of Administration under Vaughn, was read into evidence
at the trial, and he testified accordingly.
that, prior to Vaughn’s taking office, promotions were given
mainly to white males who were friends of whomever was sheriff
at a given time.
Lynch testified that Vaughn agreed with him
that minorities should have access to desired positions.
Yancey maintains, however, that he was promoted in
name only and was not given supervisory responsibilities.
However, the trial testimony included that Yancey was very
inexperienced for his rank, particularly in management skills.
Yancey remained as a lieutenant until December of 1994, when he
was demoted to the rank of a deputy.
demotion was based on his race.
He claimed that his
Yancey also alleged that he was
exposed to a hostile work environment during his tenure as
We now review the evidence to determine if the trial
court’s decision to grant Vaughn’s motion for judgment
notwithstanding the verdict was in error.
A court should only
grant such a motion if there is a complete absence of proof on a
material issue in the action, or if no disputed issue of fact
exists upon which reasonable minds could differ.
Goodman, Ky. App., 830 S.W.2d 398, 400 (1992).2
inferences should be drawn in favor of the nonmovant.
Lourdes Hosp., Inc., Ky., 805 S.W.2d 122, 125 (1991).
Because KRS Chapter 344 mirrors Title VII of the Civil
Rights Act of 1964, Kentucky courts use federal standards when
evaluating race discrimination claims.
Stewart v. Univ. of
Louisville, Ky. App., 65 S.W.3d 536, 539 (2001).
environment claims based on racial harassment are reviewed under
the same standard as those based on sexual harassment.
Faragher v. Boca Raton, 524 U.S. 775, 786-787, and n.1 (1998).
Yancey’s claims of hostile work environment
Title VII of the Civil Rights Act of 1964 recognizes
hostile work environment claims based on racial harassment.
Smith v. Leggett Wire Co., 220 F.3d. 752, 758 (6th Cir. 2000).
“In order to establish a racially hostile work environment under
Title VII, the plaintiff must show that the conduct in question
was severe or pervasive enough to create an environment that a
reasonable person would find hostile or abusive, and that the
victim subjectively regarded it as abusive.”
Id. at 760.
plaintiff must also prove that his employer tolerated or
condoned the situation or knew or should have known of the
alleged conduct and did nothing to correct the situation.
The standard for reviewing a judgment notwithstanding the verdict is the
same standard used to review directed verdicts. See Taylor v. Kennedy, Ky.
App., 700 S.W.2d 415, 416 (1985).
(citing Jackson v. Quanex Corp., 191 F.3d 647, 658-59 (6th Cir.
Courts must “determine whether an environment is
sufficiently hostile or abusive by ‘looking at all the
circumstances,’ including 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.’”
Faragher, 524 U.S. at 787-88 (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993)).
In reviewing the
claims, courts must not disaggregate episodic harassment into
discrete and isolated incidents.
“‘[T]he issue is not whether
each incident of harassment standing alone is sufficient to
sustain the cause of action in a hostile environment case, but
whether--taken together--the reported incidents make out such a
Jackson, 191 F.3d at 659 (quoting Williams v. General
Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999)).
The conduct must be “severe,” “pervasive,” and
The Supreme Court of the United States has explained
that “[a] recurring point in these opinions is that ‘simple
teasing,’ offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in
the ‘terms and conditions of employment.’”
at 788 (internal citation omitted).
Faragher, 524 U.S.
“Thus, ‘[w]hen 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,” Title VII is violated.’”
Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)
(quoting Harris, 510 U.S. at 21) (citations omitted in Morgan).
The conduct must be extreme enough to amount to a change in the
terms and conditions of employment.
Faragher, 524 U.S. at 788.
In other words, the harassment must have “adversely affected the
employee’s ability to do his or her job.”
Moore v. KUKA Welding
Sys. and Robot Corp., 171 F.3d 1073, 1079 (6th Cir.
The “standards for judging hostility are sufficiently
demanding to ensure that Title VII does not become a ‘general
Properly applied, they will filter out
complaints attacking ‘the ordinary tribulations of the
workplace, such as the sporadic use of abusive language, gender[or race] related jokes, and occasional teasing.’”
524 U.S. at 788 (internal citations omitted).
Yancey only claimed he was exposed to a hostile work
environment during the eleven-month period he was a lieutenant
from January 1994 through December 1, 1994.3
To facilitate our
Specifically, the jury instruction on racial harassment read as follows:
Do you believe from the evidence:
review, we have categorized the incidents relied upon by Yancey
to support his hostile environment claim.4
Comments made or reported to Yancey after his
Deputy Rodney Lindauer testified that he overheard
Major John Quigley, who was one of Yancey’s supervisors, say
that Yancey was a “nigger” or “just a nigger.”
made during Yancey’s tenure as lieutenant.
This comment was
Lindauer did not
know to whom Quigley was speaking, or whether he was on the
telephone, or if someone else was in his office.
Lindauer did not report this incident to anyone and did not tell
Yancey about it until two years later.
Deputy Myskela Carter testified that she heard a joke,
which she characterized as racial, that was directed at Yancey.
She did not know the full joke, but it involved African
Americans and a “357” which she believed was in reference to a
However, this comment was made after Yancey was
demoted to deputy, not during the period he was a lieutenant.
That during the period in which the Plaintiff, Steve Yancey, was
employed by the Defendant, Sheriff, in the position of lieutenant,
the Plaintiff, because of his race, was subjected to offensive and
intimidating conduct; and
2. That such conduct was sufficiently severe or pervasive to alter the
conditions of the Plaintiff’s employment and create a hostile
working environment that unreasonably interfered with Plaintiff’s
work performance; and
3. That the Defendant, Jefferson County Sheriff, knew, or should have
known, of the offensive conduct and failed to take reasonable steps
to eliminate it.
Ultimately, the evidence must be reviewed together. We only categorize it
to determine which incidents meet the requirements of relevant evidence to be
considered under the totality of circumstances.
Deputy John Rivera testified that he overheard a
comment made by a sergeant regarding some deer meat that a
deputy had given to Yancey.
The sergeant was not Yancey’s or
Rivera testified that the sergeant said
that he could not believe “the deer meat was given to that
It was undisputed that Yancey did not hear the remark,
but Rivera reported hearing it to Yancey.
However, this comment
was also made after Yancey’s demotion.
The evidence at trial also included testimony
regarding allegations that Yancey was discriminated against in
not being permitted to use bereavement leave after the death of
Although the testimony was very weak in proving
that white officers were allowed to use bereavement leave for
persons not specifically included in the policy,5 we find no
reason to make any such comparison.
This is so because Yancey’s
fiancé died in 1996, while Yancey’s claim was for hostile work
environment in 1994.
Because the bereavement issue and the remarks
overheard by Carter and Rivera occurred after Yancey’s demotion,
they are not relevant evidence of a hostile work environment
during the period in question.
Although the racial slur
The written bereavement policy provided in pertinent part that: The
Sheriff’s Office grants leave, with pay, to regular employees who are absent
due to death in the employee’s immediate family. Immediate family members
includes [sic] spouses, children, brothers, sisters, parents or grandparents
of the employee.
overheard by Lindauer occurred during the relevant time period,
he did not tell Yancey about it until two years later.
no evidence that Lindauer told anyone else about it during the
relevant time period.
Yancey was required to show that a reasonable person
would have viewed the environment as hostile or abusive and that
he subjectively regarded it as such.
Black v. Zaring Homes,
Inc., 104 F.3d 822, 826 (6th Cir. 1997).
Because the incidents
in this category were unknown to Yancey during his tenure as
lieutenant or occurred thereafter, this evidence cannot support
his hostile environment claim.
See Abeita v. TransAmerica
Mailings, Inc., 159 F.3d 246, 249 n.4 (6th Cir. 1998).
Accordingly, they cannot be reviewed with other evidence under
the totality of circumstances.
Incidents witnessed personally by Yancey
Yancey observed two specific incidents on which he
based his claim in part.
He overheard a comment made by Deputy
Dan Gainweyer in the presence of Major Connie Voyles,6 Yancey’s
immediate supervisor at that time, that Gainweyer had “just
rolled some papers in the West End and you know, everybody down
there had gold teeth in their mouth.”
Although Yancey did not
report this comment to other supervisors, Major Voyles was
At times Major Voyles is also referred to as Major or Captain Ashley, or
present when the comment was made.
There was no evidence that
she took any action against Gainweyer for making this comment.
Yancey also testified that he saw Deputy Gainweyer
wearing a ring with a Nazi insignia on it.
it and reported it to Major Voyles.
Deputy Gainweyer about the ring.
He was offended by
Major Voyles questioned
She testified that it was a
Fiesta bowl ring Gainweyer’s father had given him and that there
was nothing offensive about it.
taken against Gainweyer.
No disciplinary action was
Yancey did not report the ring to any
While our standard of review mandates that we give
Yancey a favorable inference on these two incidents, we are left
with gaping holes regarding these allegations.
For example, in
reference to the ring incident, although Yancey testified that
Gainweyer did not hide the ring from anyone, he presented no
evidence or testimony as to the duration of time or frequency
Gainweyer wore this ring, or if Gainweyer continued to wear it
after Voyles questioned him.
This evidence is highly relevant because Yancey is
required to prove that Vaughn knew or should have known of
Gainweyer’s conduct and did nothing to correct it.
220 F.3d at 760.
“[A] plaintiff may hold an employer directly
liable if [he] can show that the employer knew or should have
known of the conduct, and that [his] response manifested
indifference or unreasonableness.”
Jackson, 191 F.3d at 663
(citing Blankenship v. Parke Care Centers, Inc., 123 F.3d 868,
873 (6th Cir. 1997)).
Major Voyles was Yancey’s immediate supervisor.
question then is whether her notice is sufficient to impute such
notice to Sheriff Vaughn.
“The general consensus is that the
knowledge of or notice to a low-level employee without authority
or power cannot be imputed to the employer.”
Clark v. United
Parcel Service, Inc., 286 F. Supp. 2d 819, 829-30 (W.D. Ky.
2003) (citing Torres v. Pisano, 116 F.3d 625, 634-35 (2d Cir.
1997) (actions of “low-level supervisor” in management hierarchy
cannot be imputed to employer); Kotcher v. Rosa and Sullivan
Appliance Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992) (same);
Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998)
(notice to employer does not turn on labels in management
hierarchy, and “a more important consideration [may be] whether
notice was given ‘to those with authority to address the
problem’”); Young v. Bayer Corp., 123 F.3d 672, 675 (7th Cir.
1997) (notice to the proper person can be judged by whether the
person complained to “has the authority to terminate the
harassment” and “could reasonably be expected to refer the
complaint up the ladder” to the personnel able to act on it)).7
A similar issue was raised in Brewer v. Hillard, Ky. App., 15 S.W.3d 1
(1999), wherein the jury believed that a low-level supervisor was in a
position to report the harassment and that the employer should have known
The evidence at trial included that Voyles was
responsible for daily assignments and general supervisory tasks,
but there was no evidence that she had the authority to
independently discipline Gainweyer.
While Voyles was a major,
title alone is not enough to infer disciplinary authority.
is a close issue, and we conclude that Yancey is entitled to a
favorable inference on this point.
Other allegations by Yancey included that he was
discriminated against because he was not given a desk, office,
or file cabinet.
The undisputed testimony at trial, however,
was that office space was very limited.
Those individuals who
did have offices had to share them, and they were of a higher
rank than Yancey.
Even Sheriff Vaughn shared an office.
evidence was clear that the condition of office space was bad
for everyone, and Yancey failed to present evidence that he was
treated differently from those of a similar rank, tenure, and
Moreover, Yancey did not show that Vaughn was
personally responsible for Yancey’s office conditions or that
Vaughn knew or should have known about them.
Further, there was no evidence linking the conditions
in the office to Yancey’s race.
Yancey did testify that he
about it from other co-workers who were present when the on-going harassment
took place. This Court affirmed the trial court’s judgment. Brewer is,
however, distinguishable from the present case because the facts in it
included numerous and on-going incidents of open harassment and sexuallyoriented touching.
spoke to Major Voyles regarding it, and she responded that he
would not get an office.
There was no evidence that Voyles made
any racial remarks or did anything racially discriminatory in
regard to Yancey.
Instead, the undisputed trial testimony was
that Voyles and Yancey had a personality conflict and did not
like each other.
Disparate treatment must be based on a
protected status, not personal animosity, to be actionable.
As to the file cabinet, Yancey received one within two
months of becoming a lieutenant.
However, Kimberly McNear, a
white lieutenant during Yancey’s tenure as lieutenant, did not
have her own file cabinet and instead, shared a “community” file
Yancey also alleged he was discriminated against
because he was not given a take-home car.
testimony was that he could only name one person who had a takehome car, a Sergeant Bowman.
Sergeant Bowman was Sheriff
Vaughn’s personal adjutant and driver.
Yancey knew of no one
else who had a car, regardless of race, and there was no other
evidence of disparate treatment on the basis of race in regard
to vehicle usage.
Yancey further testified that he was treated
differently because he was kept out of meetings, not invited to
lunches and there were hushed tones when he walked into offices.
However, Yancey could not specifically identify meetings from
which he was excluded.
As to the lunches, Yancey did not
produce evidence that the lunches were directly related to a
benefit at work, and, without some evidence of their content,
hushed tones are not actionable.
Further, if Yancey was exposed to this treatment, the
evidence was undisputed that many of the people with whom he
worked were jealous of his promotion to lieutenant because of
his lack of experience and short tenure in the sheriff’s office.
He was a higher rank than many other officers with more
“‘[P]ersonal conflict does not equate with
Morris v. Oldham County Fiscal Court,
201 F.3d 784, 791 (6th Cir. 2000) (quoting Barnett v. Dep’t of
Veterans Affairs, 153 F.3d 338, 342-43 (6th Cir. 1998), cert.
denied, 525 U.S. 1106 (1999)).
Civil Rights laws do not
prohibit all harassment in the work place; instead, they are
only directed at discrimination based on a protected status.
See Bowman v. Shawnee State University, 220 F.3d 456, 463 (6th
Cir. 2000) (citing Oncale v. Sundowner Offshore Serv., Inc., 523
U.S. 75, 80 (1998)).
In summary, this category produces only the actions of
Gainweyer to be included in an analysis of the totality of
All other allegations in this category have not
been shown on any level to be related to race, and Yancey is not
entitled to a favorable inference regarding such.
Incidents reported to Yancey
Yancey also called Jeanette Vize to testify.
worked in Yancey’s division during the Vaughn administration.
She recalled Major Voyles reviewing the chain of command with
Vize testified that Voyles started with the sheriff, and
finished with a captain.
When Voyles left out Yancey, who was a
lieutenant, Vize asked what Yancey’s role was in the chain of
Voyles answered her saying, “He’s nothing to you.”
Vize reported this statement to Yancey.
Reviewing Vize’s testimony as a whole, however, we
find nothing racial in the least, nor is there a reasonable
inference of such.
Vize admitted that she did not know that at
the time of her conversation with Voyles that Yancey was no
longer under Voyles’s supervision.
He had been moved to Captain
Moreover, there were other lieutenants,
who were white, but who were also omitted in Voyles’s
description of the chain of command.
Vize also testified that Voyles did not use any racial
epithets in referencing Yancey.
Moreover, there was no evidence
that Voyles ever used any inappropriate racial comments at all.
On the other hand, the evidence was undisputed that
Voyles and Yancey did not get along well and eventually Yancey
was glad to be moved to work with Captain Hettich so he would
not have to work with Voyles.
In reviewing Vize’s full
testimony, we find that it would be unreasonable to conclude
that Voyles’s statement was racially motivated as the evidence
of such a conclusion is totally lacking.
Yancey also called Pam Greenwell, a former deputy who
worked in Yancey’s division, to testify at the trial.8
recalled a comment made by Major Quigley in regard to the O.J.
Simpson trial that his former wife “deserved to have her throat
slit because she slept . . . with a nigger.”
the head supervisor of Yancey’s division.
Major Quigley was
It was undisputed
that Yancey was not present when the comment was made and that
the remark was not directed at him.
Greenwell told Yancey’s
partner about the comment, and he passed it on to Yancey.
The evidence supports a finding that Vaughn was made
aware of this incident and had it investigated.
investigation concluded that Quigley had used racial slurs.
Vaughn met with and questioned Quigley in regard to it.
testified that Quigley admitted using the slur but asked not to
be fired because his wife was ill.
Vaughn did not terminate him
but, instead, decided to let him make his own departure.
Pam Greenwell’s testimony included that the use of racial slurs was
commonplace in the sheriff’s department. However, she could only cite to the
one specific statement made by Quigley regarding O.J. Simpson’s wife when
asked to identify such remarks. Such vague assertions that there was a
general attitude of discrimination is insufficient. Smith, 220 F.3d at 761
(citing Wixson v. Dowagiac Nursing Home, 87 F.3d 164, 171 (6th Cir. 1996)
(holding that the plaintiffs failed to create issue of fact by alleging
numerous instances of disparate treatment and hostile work environment in
conclusory terms with no reference to names, titles, occasions)).
Quigley retired about one year later and was not subjected to
any discipline regarding the incident.
The highly offensive comment made by Quigley in regard
to O.J. Simpson’s former wife did occur during the relevant time
Yancey was not present, and the comment was not
directed at him.
However, because Yancey learned of the comment
during the time at issue, it is relevant evidence for this Court
to consider on his hostile work environment claim.
191 F.3d at 661 (citing Moore, 171 F.3d at 1079) (crediting
“evidence of racial harassment directed at someone other than
the plaintiff when the plaintiff knew a derogatory term had been
“[R]acial epithets need not be hurled at the plaintiff
in order to contribute to a work environment that was hostile to
(citing Rodgers v. Western-Southern Life Ins. Co.,
12 F.3d 668, 673-75 (7th Cir. 1993)).
In sum, when the trial evidence is categorized and
objectively reviewed, there was only one highly offensive racial
comment (the O.J. Simpson comment), and the two Gainweyer
incidents over an eleven-month period.
However, none of these
incidents were directed at Yancey, and the O.J. Simpson comment
was not made in his presence.
Furthermore, as to the Gainweyer
incidents, the “gold teeth” comment was only mildly offensive,
see, e.g., Johnson v. Box USA Group, Inc., 208 F. Supp. 2d 737,
743 (W.D. Ky. 2002), and there was no evidence of how often or
for what duration Gainweyer wore the ring.
The other allegations made by Yancey have not been
shown to be related to race; were outside the relevant time
period; or were unknown by Yancey.
Accordingly, they cannot be
included as evidence in reviewing the totality of circumstances.
The three incidents noted above are simply not
sufficient to support a finding of a hostile work environment
when the facts of this matter are compared with other cases.
Hostile work environment cases involve much more egregious,
severe, pervasive, and ongoing conduct.
See, e.g., Brewer, 15
S.W.3d at 4 (Plaintiff continually called sexually explicit
names by harasser, who also grabbed his buttocks and made
offensive comments, as well as requesting oral and anal sex.);
Abeita, 159 F.3d at 252 (denying summary judgment where conduct
was commonplace, ongoing daily for seven years); Moore, 171 F.3d
at 1079 (“Racial slurs and offensive jokes were part of the
every-day banter on the shop floor.”); Williams v. General
Motors Corp., 187 F.3d at 562-66 (Issue of material fact where
plaintiff complained of fifteen separate allegations of
persistent foul language and sexually explicit comments directed
at her, three of which involved an “element of physical
There was also evidence of offensive comments
towards women in general, denial of the plaintiff’s overtime,
viewed collectively, created issue of fact regarding hostile
work environment.”); compare Burnett v. Tyco Corp., 203 F.3d
980, 984-85 (6th Cir. 2000), (holding that “under the totality of
the circumstances, a single battery coupled with two merely
offensive remarks over a six-month period does not create an
issue of material fact as to whether the conduct alleged was
sufficiently severe to create a hostile work environment”);
Morris v. Oldham County Fiscal Court, supra.
Furthermore, although racial conduct need not be
directed at a plaintiff in order to violate Civil Rights laws,
actions or comments not directed at a plaintiff contribute to a
conclusion that the alleged harassment was not severe enough to
create an objectively hostile environment.
Black, 104 F.3d at
826 (citing Brown v. Hot, Sexy and Safer Productions, Inc., 68
F.3d 525, 541 (1st Cir. 1995) (finding that plaintiffs’
allegations were not so severe as to create an objectively
hostile environment, in part because the sexual comments were
not directed at the plaintiffs)).
None of the three incidents
in the case at bar were directed at Yancey, and the most
offensive one was not made in his presence.
Pursuant to federal
standards, this contributes to a finding that Yancey was not
exposed to an objectively hostile work environment.
We do not and cannot condone nor sanction the
incidents in the Sheriff’s Department brought to light in this
Individuals such as Quigley place our society in a very
dark light and are reprehensible.
behavior that is not pervasive is not the type protected under
Civil Rights laws.
Accordingly, we conclude that the trial
court correctly granted Vaughn’s judgment notwithstanding the
verdict on Yancey’s claims of hostile work environment.
Yancey also claimed that his demotion in December of
1994 was motivated by race.
Yancey may establish racial
discrimination either by introducing direct evidence of
discrimination or by proving inferential and circumstantial
evidence, which would support an inference of discrimination.
Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir.
Yancey has no direct evidence of racial discrimination
on the part of Vaughn and, therefore, must prove his case under
the familiar burden shifting mechanism set forth by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
as refined in Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S.
The burden shifting approach requires a plaintiff to
first prove a prima facie case of discrimination.
U.S. at 252-53.
If he meets this requirement, the burden then
shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the employee’s rejection.
253 (quoting McDonnell Douglas, 411 U.S. at 802.
defendant is successful in meeting this burden, the plaintiff
then must show that the reasons offered by the defendant were
not his true reason, but instead were a pretext for
Burdine, 450 U.S. at 253 (citing McDonnell
Douglas, 411 U.S. at 804).
To establish a prima facie case of discrimination,
Yancey must show that:
“(1) he [was] a member of a protected
class; (2) he was qualified for his job and performed it
satisfactorily; (3) despite his qualifications and performance,
he suffered an adverse employment action; and (4) that he was
replaced by a person outside the protected class or was treated
less favorably than a similarly situated individual outside his
Johnson v. Univ. of Cincinnati, 215 F.3d 561,
572-73 (6th Cir. 2000) (citing McDonnell Douglas, 411 U.S. at
There is no real dispute that Yancey has met the first
three prongs of his prima facie case.
The trial testimony was
undisputed that when Yancey was demoted; Jerome Henderson, an
African American deputy whom Vaughn had promoted to sergeant
when he took office in January of 1994, was placed in Yancey’s
Accordingly, Yancey must meet his prima facie
case by proving “‘that a comparable non-protected person was
(6th Cir. 1992).
Mitchell v. Toledo Hosp., 964 F.2d 577, 582
Hence, we must compare the circumstances
surrounding Yancey’s case with those of others.
The incident resulting in Yancey’s demotion from
lieutenant to deputy took place on November 5, 1994, at a
nightclub in Louisville called O’Malley’s.10
At some time around
2:00 a.m. or 3:00 a.m., a disturbance erupted over a bar tab
between Yancey’s acquaintance, Jerome Harmon, and a waitress.
The testimony at trial included several different versions of
what actually transpired, but ultimately it appears that a
bartender called Harmon a “nigger” and called for bouncers to
remove him from the bar.
Yancey, who was off duty at the time,
became involved in the incident.
The incident became physical,
and the bouncers forcibly removed Harmon from the bar.
followed them out and tried to assist Harmon.
Police Department responded to the situation, which was
described by several as a near riot.
Thirty to thirty-five
people were either involved in the situation or were spectators.
The trial testimony was very conflicting regarding
Yancey’s role in the initial disruption.
However, the conduct
Henderson, however, was not promoted to the rank of lieutenant, but did take
over Yancey’s duties.
O’Malley’s was a local club frequented by police officers. Several were
present on the night at issue.
which ultimately resulted in the internal investigation related
to Yancey’s actions toward William Lewis, a sergeant in the
Louisville police department.
Lewis maintained that Yancey
refused to produce identification until threatened with arrest
and that he was loud and obnoxious.
Lewis called for the on-
duty officer of the Sheriff’s department, and Major Quigley
responded to the scene.
Yancey presented the testimony at trial of several
witnesses of the O’Malley’s incident, which were very favorable
to how he reacted at the scene.
Of course, Vaughn put on
While the testimony of the witnesses at the
scene was very comprehensive but conflicting, the focus of the
present inquiry must stay on the information Vaughn had at the
time he made the decision to demote Yancey.
This information is
Sergeant Lewis wrote a letter to Major Quigley
regarding the incident.
In summary, his letter included that
Yancey became very belligerent and refused to show him his
identification when asked.
The letter goes on to state that on
subsequent requests to see Yancey’s identification he became
Sergeant Lewis then told Yancey that if he refused to
show him his identification that he “stood a good chance of
Thereafter, Yancey produced his badge.
letter, Lewis stated that Yancey was verbally abusive, loud and
obnoxious, and stated that he did not have to take orders from a
Quigley wrote a letter to Major Larkin of Internal
Affairs regarding the incident, which likewise included that
Yancey refused to identify himself to Louisville police
He also reported that Yancey was involved in pushing
and shoving at the scene.
On November 17, 1994, Sergeant Goatley of Internal
Affairs wrote a report to Vaughn regarding the investigation of
the O’Malley’s incident.
The report summarized the information
gathered from various persons interviewed during the
Twelve individuals, including Yancey, were
Of those twelve, four were employees of O’Malley’s
and four were officers with the Louisville Police Department.
The statements of two deputies were taken.
Overwhelmingly those interviewed stated that Yancey
was at fault and acted unprofessionally.
was loud and obnoxious.
Most stated that he
Others stated that Yancey was the
problem and that he had escalated the fight by his interference.
Deputy Troy Cammack, who was interviewed, stated that
he heard Yancey identify himself as a police officer.
stated that Yancey became upset when he was told his badge did
not carry any weight in the bar.
A second deputy, Joe Weis, stated that Yancey was
trying to help Harmon, but was very loud.
He also stated that
when he tried to separate Yancey and a bouncer, Yancey attempted
to get around him to get to the bouncer.
Weis stated that he
heard Yancey refuse to identify himself and that Yancey was
aggressive and belligerent to the Louisville officers.
Officer Jeff Schmitt, of the Louisville Police
Department, was also present as a patron of the bar.
that Yancey did produce identification to the Louisville police
when requested, but was not present when Sergeant Lewis
Yancey himself was interviewed.
He stated he tried to
help Harmon because the bouncers had thrown him on the ground
and had a knee in his throat.
He identified himself as a police
officer, but felt that Lewis was disrespectful to him.
therefore refused to show identification to Lewis.
thought Lewis was “nasty” toward him.
angry at that time.
Yancey admitted being
He stated that one or two of the bouncers
informed the Louisville police that he had done nothing wrong.
Yancey acknowledged that he was asked for
identification by three different Louisville police officers and
only produced it when threatened with arrest.
He denied making
any statement regarding Lewis’s rank as a sergeant compared with
his as a lieutenant.
During his interview, he stated that he
did not perceive the incident as racially motivated.
Upon completion of the investigation, it was concluded
may have violated a number of Rules of
Standards and Conduct. There may be
violations of R.S.C. 3.021 (Required to be
Courteous); R.S.C. 3.022 (Failure to Produce
Identification on Request); R.S.C. 3.012 (No
weapon off duty); and R.S.C. 4.013 (Use of
Authority for Personal Reasons).
The report summarized above was dated November 17,
Vaughn sent Yancey a letter dated November 21, 1994,
informing him that he had been demoted based on the information
in the report.
We are currently reviewing the fourth prong under
Yancey’s prima facie case-—that he was treated less favorably
than similarly situated individuals outside his protected class.
The case of Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d
344 (6th Cir. 1998), explains this requirement in detail.
plaintiff is “‘required to prove that all of the relevant
aspects of his employment situation were “nearly identical” to
those of [the non-minority’s] employment situation.’”
352 (citing Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796,
802 (6th Cir. 1994)).
Relevant factors to consider in cases
alleging differential disciplinary action include that “‘the
individuals with whom the plaintiff seeks to compare his/her
treatment must have dealt with the same supervisor, have been
subject to the same standards and have engaged in the same
conduct without such differentiating or mitigating circumstances
that would distinguish their conduct or the employer’s treatment
of them for it.’”
Ercegovich, 154 F.3d at 352 (quoting
Mitchell, 964 F.2d at 583).
Ercegovich, 154 F.3d at 352, goes
on to explain that:
Courts should not assume, however, that the
specific factors discussed in Mitchell are
relevant factors in cases arising under
different circumstances, but should make an
independent determination as to the
relevancy of a particular aspect of the
plaintiff’s employment status and that of
the non-protected employee. The plaintiff
need not demonstrate an exact correlation
with the employee receiving more favorable
treatment in order for the two to be
considered “similarly-situated;” rather, as
this court has held in Pierce, the plaintiff
and the employee with whom the plaintiff
seeks to compare himself or herself must be
similar in “all of the relevant aspects.”
Pierce, 40 F.3d at 802 (emphasis added).
It was Yancey’s burden to produce evidence of
comparables, and he failed to meet the requirements explained
The comparables referenced by Yancey at trial were in no
way similar to the O’Malley’s incident.
Nor were the officers
involved at the same rank as Yancey, and their misconduct was
not nearly as severe.
It was not enough for Yancey to show that
he was treated differently.
Instead, he was required to make
the showing of being similarly situated in all relevant aspects,
and he failed to do so.
Thus, Yancey has failed to even prove a
prima facie case.
Alternatively, even if Yancey had presented a prima
facie case, he has not shown pretext.
Vaughn stated his reason
for demoting Yancey was the O’Malley’s incident and that he
relied on the investigative report findings in making this
Accordingly, Vaughn presented a legitimate
nondiscriminatory reason for Yancey’s demotion.
burden then shifted to Yancey to show pretext.
Proving a pretextual motive requires that “the
plaintiff must produce sufficient evidence from which the jury
may reasonably reject the employer’s explanation.”
Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir. 1994)
(citing Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104,
1109 (8th Cir. 1994)).
“[A] reason cannot be proved to be ‘a
pretext for discrimination’ unless it is
shown both that the reason was false, and
that discrimination was the real reason.”
St. Mary’s Honor Center [v. Hicks], 509 U.S.
, at 512 n.4, 113 S.Ct. 2742 [(1993)].
“It is not enough, in other words, to
disbelieve the employer; the fact finder
must believe the plaintiff’s explanation of
intentional discrimination.” Id. at 519,
113 S.Ct. 2742. In this regard, the
plaintiff retains the “ultimate burden of
persuading the trier of fact that the
defendant intentionally discriminated
against the plaintiff[.]” Burdine, 450 U.S.
at 253, 101 S.Ct. 1089; St. Mary’s Honor
Center, 509 U.S. at 597, 113 S.Ct. 2742;
Haynes v. Miller, 669 F.2d 1125, 1126-27 (6th
Further, an employer may make
employment decisions “for a good reason, a
bad reason, a reason based on erroneous
facts, or for no reason at all, as long as
its action is not for a discriminatory
reason.” Nix v. WLCY Radio/Rahall
Communications, 738 F.2d 1181, 1187 (11th
Cir. 1984). Even if the court were to
disagree with defendant’s reasons for its
actions or believe that defendant was
unnecessarily harsh toward plaintiff, this
would not be enough; an affirmative finding
of discrimination must be made. See id.
(finding no discrimination even if plaintiff
was fired for violating a rule he did not
violate.). See also Manzer v. Diamond
Shamrock Chem. Co., 29 F.3d 1078, 1083 (6th
Cir. 1994); Smith v. Stratus Computer, Inc.,
40 F.3d 11, 16 (1st Cir. 1994), cert. denied,
514 U.S. 1108, 115 S.Ct. 1958, 131 L.Ed.2d
850 (1995); Mechnig v. Sears, Roebuck & Co.,
864 F.2d 1359, 1365 (7th Cir. 1988).
Evans v. Toys R Us-Ohio, Inc., 32 F. Supp. 2d 974, 985 (S.D.
Yancey may prove pretext by introducing evidence that
proves one of three arguments:
“(1) that the proffered reasons
had no basis in fact, (2) that the proffered reasons did not
actually motivate [the action], or (3) that they were
insufficient to motivate [the action].”
Manzer, 29 F.3d at 1084
(quoting McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th
Cir. 1993)) (emphasis in original).
Because the O’Malley’s incident was investigated and a
compelling negative report of Yancey’s conduct was given, it
cannot reasonably be found that the proffered reason was not
factual nor insufficient to motivate Yancey’s demotion.
Yancey must present evidence that his actions at O’Malley’s did
not actually motivate his demotion.
Yancey attempts to tie in racial statements made by
Quigley to support his claim.
“In assessing the relevancy of a
discriminatory remark, we look first at the identity of the
An isolated discriminatory remark made by one with no
managerial authority over the challenged personnel decision is
not considered indicative of . . . discrimination.”
154 F.3d at 354 (citation omitted).
Hence, “‘“statements by
nondecisionmakers . . . [cannot] suffice to satisfy the
plaintiff’s burden . . .” of demonstrating animus.’”
F.3d at 759 (citing Bush v. Dictaphone Corp., 161 F.3d 363, 369
(6th Cir. 1998) (quoting Price Waterhouse v. Hopkins, 490 U.S.
228, 277 (1989); McDonald v. Union Camp Corp., 898 F.2d 1155,
1161-62 (6th Cir. 1990) (holding that statements of intermediate
level management officials were not indicative of discrimination
when the ultimate decision to discharge is made by an upperlevel official); Wilson v. Stroh Cos., Inc., 952 F.2d 942, 94546 (6th Cir. 1992) (holding that racial animus by plant manager
could not be imputed to upper-level manager who made the
decision to terminate absent proof of connection); cf. Talley v.
Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1249 (6th Cir. 1995)
(holding that repeated racial slurs by two owners constituted
direct evidence that the plaintiff’s termination might have been
Thus, we must discern what, if any, role
Quigley played in the ultimate decision to demote Yancey.
All of the testimony at trial, with the exception of
one reference made in Lynch’s deposition testimony, was that
Vaughn alone made the decision to demote Yancey.
testimony included a reference to a meeting which Vaughn had
with Yancey’s “commanding officers” on either the day of or the
day before Yancey’s demotion.
However, Lynch also stated that
he had no direct knowledge of the facts surrounding the
demotion, and he was not involved in the meeting.
Unfortunately, Lynch did not go on to detail who
specifically was involved in the pre-demotion meeting.
that Lynch stated that it was Yancey’s commanding officers, we
will give Yancey a reasonable inference that Major Quigley was
at this meeting.
Nonetheless, there was no evidence that Quigley’s
racial animus had any influence on Vaughn’s decision.
Yancey testified that he could not say if Quigley had any
influence on the decision.
Furthermore, in Yancey’s written
appeal of his demotion, he requested a hearing with a select
board, including Major Quigley,11 although he was already aware
of at least one racial remark made by him.
It is not reasonable
to find that Yancey feared Quigley when he did not object to him
being included on his appeal board.
Further, assuming that the meeting referenced by Lynch
actually took place and that Quigley was a part of it, there was
no evidence that Vaughn did not independently rely on the
unbiased internal investigation report which was highly damaging
The report was dated November 17, 1994, and
Vaughn would have had it prior to the meeting.
This matter is somewhat analogous to Wilson, 952 F.2d
942, wherein the plaintiff alleged that the plant manager
harbored racial animus toward him and wanted to terminate him.
The Court refused to find that the plant manager’s animus
infected the decision-making process absent evidence of such
wherein an independent investigation had been conducted.
Further, to any extent Yancey argues that Quigley was
responsible for the internal investigation, such is insufficient
to prove his case.
Certainly, the O’Malley’s incident
was sufficiently serious to have warranted an investigation.
Yancey included testimony regarding his withdrawal of the appeal.
Testimony included that Col. Cain and Stanley Patton advised him that Vaughn
would fire him if he pursued it. Even if this were accurate, there was no
evidence linking this to race. Further, there was no claim of retaliation by
Moreover, Yancey would have had to show some type of
discriminatory bias on the part of Major Jim Larkin and Sergeant
Jim Goatley, who conducted the investigation, and on those
persons who were interviewed, many of whom were disinterested
The evidence at trial was completely void on this
issue, and Yancey is not entitled to a reasonable inference on
Thus, Yancey has not shown that Quigley’s racial
animus influenced Vaughn.
Further, Yancey presented no evidence
to support a reasonable inference that ultimately Vaughn alone
did not make the final decision to demote Yancey based on the
results of the investigation.
More compelling is that a jury must believe that a
plaintiff was intentionally discriminated against on the basis
Yancey was therefore required to produce
“sufficient evidence from which the jury may reasonably reject
Wilson v. Dana Corporation, 210 F.
Supp. 2d 867, at 887 (W.D. Ky. 2002)(citing Manzer, 29 F.3d at
Yancey’s burden was not met for several reasons.
First, it was Vaughn who promoted Yancey in the first place.
And, second, Yancey was replaced by another African American.
It is beyond logic and totally unreasonable to find that Vaughn
intentionally discriminated against Yancey on the basis of race
by promoting him, then demoting him, and finally by replacing
him with a person of the same race.
Further, the evidence at trial in regard to Vaughn’s
decision making was that it was inconsistent across the board,
regardless of race.
Yancey called James Cain as his witness.
Cain was one of Yancey’s supervisors and worked under the Vaughn
He testified at trial that when asked if he
perceived Vaughn having any inclination towards one race or
another, he stated that “I guess he was an equal opportunity
harsh guy, I guess you’d probably say.”
Jim Larkin, called by
Vaughn, testified accordingly when he stated that “I think he
[Vaughn] was equally severe.”
Micheal Hettich, who was white,
testified that he was demoted by Vaughn and transferred to auto
inspection without any reason whatsoever.
When Hettich asked
Vaughn the basis for his decision, he stated that Hettich’s work
performance was very good, but he wanted to give someone else a
Hettich testified in reference to Vaughn that he was
not consistent in his discipline and that he was sometimes harsh
and sometimes lenient regardless of race.
For example, Hettich
testified that one time Vaughn learned that a deputy had fallen
asleep while working as an off duty security guard and suspended
him for several days.
While Vaughn may have been very inconsistent in his
personnel decisions, unless his decisions were based on race,
they were not actionable.
See, e.g., Evans, 32 F. Supp. 2d at
In other words, an employer who treats everyone badly is
not liable for discrimination.
The evidence is totally lacking for a finding of
Yancey has, therefore, failed to prove that his
demotion was based on his race.
We hereby affirm the trial
court on this issue.
The court’s denial of evidence of discrimination
Yancey complained that the trial court erred in not
allowing evidence at trial of alleged incidents of harassment
and discrimination experienced by other employees.
comment on this issue is that it is difficult to grasp why
Yancey believes this prejudiced his case when the jury found in
While the trial court granted Vaughn’s motion
notwithstanding the verdict, the court was already familiar with
all the evidence Yancey wanted to include concerning other
Had this case involved an instance where the jury
returned a defense verdict, we could more easily understand
Nonetheless, we believe it is important to review this
issue on the merits as many facts in the trial were somewhat
It is a long-standing rule in the Commonwealth that
At the hearing regarding the avowal testimony, Yancey’s counsel conceded
that its purpose was for the trial court’s further consideration.
rulings regarding evidentiary matters are within the discretion
of the trial court.
“[A]buse of discretion is the proper
standard of review of a trial court's evidentiary rulings.”
Goodyear Tire & Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 577
Courts are consistent in determining that harassment
and discrimination not necessarily directed at a particular
plaintiff or conducted in his presence may be relevant to
support a hostile environment claim.
Jackson, 191 F.3d at 664-65 .
See Black, 104 F.3d at
However, courts also
consistently require evidence that the plaintiff was
subjectively aware of the discrimination or harassment allegedly
directed at other employees.
See Jackson, 191 F.3d at 661
(citing Moore, 171 F.3d at 1079) (“We have also credited
evidence of racial harassment directed at someone other than the
plaintiff when the plaintiff knew a derogatory term had been
used.”); Abeita, 159 F.3d at 249, n.4 (rejecting as irrelevant
testimony concerning harassment about which plaintiff knew
nothing during her employment); Wilson v. Dana Corp., 210 F.
Supp. 2d at 878 (“[T]he fact that the challenged conduct must be
examined on both an objective and subjective basis . . .
requires that the plaintiff must at least have been aware of
harassment [involving other employees] while employed by the
It is on this point that Yancey’s case is
No evidence was presented at trial that Yancey was
aware at any level of other relevant incidents of alleged
harassment or discrimination.
Yancey testified in his
deposition in reference to other plaintiffs that he did not know
what they knew or to what they were going to testify.
Yancey did, however, testify in his deposition that he
had heard of a racial statement Vaughn had made in reference to
Stanleo Patton, the highest ranking African American officer
under Vaughn’s administration at the time.
that he did not know if it was true.
However, even if Yancey
did in fact know of the statement and even if he believed it to
be true, it was not relevant to his case because it was made
after his demotion.
Furthermore, the evidence at trial showed that there
was very little contact between Yancey and the other plaintiffs
during his tenure as lieutenant.
For example, Carter testified
at trial that she never worked at the same time and same place
as Yancey, and that they did not discuss their jobs with one
Patton testified that he worked in a separate unit
from Yancey and only had contact with him occasionally.
Henderson testified similarly stating he worked in a separate
building from Yancey and did not have a lot of interaction with
Yancey has pointed this Court to no evidence
whatsoever that he knew of others’ treatment during the relevant
time at issue.
In absence of such, we find no error in the
trial court’s exclusion of this evidence.
For the reasons stated, we hereby affirm the trial
court’s granting judgment notwithstanding the verdict to Vaughn,
and the exclusion of evidence of other employee’s racial
Vaughn’s cross-appeal is thereby mooted.
BRIEF FOR APPELLANT/
BRIEF FOR APPELLEE/
Kenneth L. Sales
Sales, Tillman & Wallbaum
Leightty & Associates