DELORIS BOATENG v. FAYETTE COUNTY BOARD OF EDUCATION
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RENDERED: June 17, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001181-MR
DELORIS BOATENG
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
ACTION NO. 02-CI-03309
FAYETTE COUNTY BOARD OF
EDUCATION
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; GUIDUGLI, JUDGE; MILLER, SPECIAL
GUIDUGLI, JUDGE:
Deloris Boateng has appealed from the Fayette
Circuit Court’s June 4, 2004, Summary Judgment dismissing her
claims against the Fayette County Board of Education
(hereinafter “the Board”).
Boateng alleged that the Board had
violated KRS 61.102 (the Kentucky Whistleblower Act), KRS
Chapter 344 (the Kentucky Civil Rights Act), as well as § 2 of
1
Senior Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
the Kentucky Constitution, due to retaliatory actions taken
after she made complaints regarding the assignment of children
to classrooms.
We affirm.
At the time she filed her complaint in 2002, Boateng
was a 56-year-old African-American woman who was teaching under
a continuing contract with Fayette County Public Schools at
Julia R. Ewan Elementary School (hereinafter “the School”).
She
taught 5th grade at the School for over ten years, through the
2001-2002 school year.
Early in that school year, Boateng
approached her supervisor, Principal Vickie Burke, regarding her
belief that she had been assigned more students with behavioral
problems that the other 5th grade teachers.
This assignment, she
argued, violated the School’s site-based council’s policy for
assigning students.2
Boateng wanted her class size reduced and
some of the children to be separated.
When she did not receive
the support or results she requested from Burke, Boateng
contacted Burke’s supervisor, Elaine Farris, the Supervisor of
Elementary Schools for Fayette County.
Farris to discuss the matter.
Burke had also contacted
In order to assist Boateng with
her classroom behavioral problems, Burke contacted Denise
Lawless, a resource teacher from Fayette County Public Schools’
SAFE Schools Department.
Lawless observed Boateng’s classroom,
noting that the children were often off-task, confrontational,
2
After considering parent requests, the classes were to be balanced by
gender, race, and enrollment in special programs.
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and did not follow directions.
She offered Boateng several
recommendations in line with the CHAMPS3 program.
Burke then
placed Boateng on a corrective action plan in late October.
Boateng also received assistance from social studies content
literacy specialist Donna Shouse and from elementary math
response teacher Beverly Dean.
In December, Boateng, through legal counsel, sent a
letter to then-superintendent Dr. Robin Fankhauser complaining
of Burke’s treatment, and alleging that the imposition of the
corrective action plan was in retaliation for her reporting of
the student assignment issue to Farris.
She also indicated her
belief that her problems with Burke were due to race.
By an e-mail dated May 13, 2002, Burke notified
Boateng that she was going to be assigned to the 2nd grade for
the 2002-2003 school year, noting that the new assignment should
be less stressful for her.
Although she never objected to this
new assignment, Boateng was not satisfied as she did not have
any materials or experience for that grade level, although she
was certified to teach that level.
However, on June 26, 2002,
Dr. Fankhauser informed Boateng by letter that she was being
transferred as a teacher in the Home Hospital program.
This
transfer was later rescinded by interim superintendent Dr. L.
Duane Tennant by letter dated August 5, 2002, and Boateng was
3
CHAMPS stands for conversation, health, activity, movement, and
participation.
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transferred back to the School.
After receiving this
notification, Burke assigned Boateng to the positions of science
lab and remedial reading teacher, as the 5th and 2nd grade
positions had already been filled.
The transfer and subsequent
change in position did not affect Boateng’s salary or benefits
in any way.
Boateng filed a verified complaint on August 15, 2002,
alleging retaliation under Kentucky’s Whistleblower and Civil
Rights Acts, as well as a violation of § 2 of the Kentucky
Constitution.
She sought damages as well as injunctive relief.
Boateng also filed a motion for a temporary injunction, in which
she requested that the Board be required to re-employ her as a
2nd or 5th grade teacher at the School.
This motion was overruled
after Boateng conceded that she was not entitled by law to a
particular position of employment or school.
Following a period of discovery, the Board filed a
motion for summary judgment, arguing that Boateng had not
established a viable claim under the Whistleblower Act as she
did not make a disclosure as defined by KRS 61.103(1)(a), there
was no adverse personnel action taken based upon this
“disclosure”, and because her claim was time-barred as it was
not filed within 90 days of the violation of the statute.
The
Board also argued that Boateng did not establish a prima facie
case of racial discrimination under KRS Chapter 344, and that no
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arbitrary action had been taken to support a claim of a
constitutional violation.
Boateng responded only to the
Whistleblower Act and constitutional arguments.
In its reply,
the Board again addressed Boateng’s KRS Chapter 344 retaliation
claim, asserting that it must be premised on an exercise of
rights under KRS Chapter 344, which Boateng failed to do.
Boateng, in her sur-reply, argued that she did not need to set
forth a case of discrimination in order to proceed under a
retaliation claim.
After hearing oral argument on the motion,
the circuit court entered a summary judgment and dismissed
Boateng’s claims.
This appeal followed.
On appeal, Boateng maintains that she established a
prima facie case of retaliation under KRS 61.101, et seq.; that
she did not plead a racial discrimination claim; that the
circuit court erred in granting a sua sponte summary judgment;
and that she established a violation of § 2 of the Kentucky
Constitution.
The Board continues to argue that Boateng failed
to state a claim under the Whistleblower Act and that in any
event the claim was time barred; that she did not state a KRS
Chapter 344 retaliation claim; and that she failed to state a
claim for arbitrary action under § 2 of the Kentucky
Constitution.
Our standard of review from the entry of a summary
judgment is well settled:
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The standard of review on appeal when a
trial court grants a motion for summary
judgment is "whether the trial court
correctly found that there were no genuine
issues as to any material fact and that the
moving party was entitled to judgment as a
matter of law." The trial court must view
the evidence in the light most favorable to
the nonmoving party, and summary judgment
should be granted only if it appears
impossible that the nonmoving party will be
able to produce evidence at trial warranting
a judgment in his favor. The moving party
bears the initial burden of showing that no
genuine issue of material fact exists, and
then the burden shifts to the party opposing
summary judgment to present "at least some
affirmative evidence showing that there is a
genuine issue of material fact for trial."
The trial court "must examine the evidence,
not to decide any issue of fact, but to
discover if a real issue exists." While the
Court in Steelvest[, Inc. v. Scansteel
Service Center, Inc., 807 S.W.2d 476, 480
(Ky. 1991)] used the word "impossible" in
describing the strict standard for summary
judgment, the Supreme Court later stated
that that word was "used in a practical
sense, not in an absolute sense." Because
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
and will review the issue de novo.[4]
With this standard in mind, we shall review the circuit court’s
decision below.
We shall first address Boateng’s claim under
Kentucky’s Whistleblower Act, KRS 61.101, et seq.
She argues
that she established a prima facie case under the statute, and
4
Lewis v. B&R Corporation, 56 S.W.3d 432, 436 (Ky.App. 2001)(citations in
footnotes omitted).
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that the issue before the circuit court was whether her
complaint to Farris was protected under the Act.
On the other
hand, the Board urges us to hold that Boateng did not establish
a prima facie case under the Act because she did not make a
disclosure, as defined by the Act, to an appropriate authority
and because her claim was time barred.
We agree with the Board.
KRS 61.102(1) creates a cause of action for reprisal
against a public employee for disclosures of law violations, and
provides as follow:
No employer shall subject to reprisal,
or directly or indirectly use, or threaten
to use, any official authority or influence,
in any manner whatsoever, which tends to
discourage, restrain, depress, dissuade,
deter, prevent, interfere with, coerce, or
discriminate against any employee who in
good faith reports, discloses, divulges, or
otherwise brings to the attention of the
Kentucky Legislative Ethics Commission, the
Attorney General, the Auditor of Public
Accounts, the General Assembly of the
Commonwealth of Kentucky or any of its
members or employees, the Legislative
Research Commission or any of its
committees, members or employees, or any
other appropriate body or authority, any
facts or information relative to an actual
or suspected violation of any law, statute,
executive order, administrative regulation,
mandate, rule, or ordinance of the United
States, the Commonwealth of Kentucky, or any
of its political subdivisions, or any facts
or information relative to actual or
suspected mismanagement, waste, fraud, abuse
of authority, or a substantial and specific
danger to public health or safety. No
employer shall require any employee to give
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notice prior to making such a report,
disclosure, or divulgence.
“Disclosure” is defined as “a person acting on his own
behalf. . . who reported or is about to report, either verbally
or in writing, any matter set forth in KRS 61.102.”5
KRS
61.103(2) permits an employee alleging a violation of KRS
61.102(1) to bring an action for relief and/or damages “within
ninety (90) days after the occurrence of the alleged violation.”
The employee is required to “show by a preponderance of the
evidence that the disclosure was a contributing factor in the
personnel action.”6
A “contributing factor” is defined as “any
factor which, alone or in conjunction with other factors, tends
to affect in any way the outcome of a decision.”7
If an employee
successfully establishes a prima facie case of reprisal and the
disclosure is determined to be a contributing factor to the
personnel action, “the burden of proof shall be on the agency to
prove by clear and convincing evidence that the disclosure was
not a material fact in the personnel action.”8
In Davidson v. Commonwealth of Kentucky, Department of
Military Affairs,9 this Court, relying upon the Supreme Court of
5
KRS 61.103(1)(a).
6
KRS 61.103(3).
7
KRS 61.103(1)(b).
8
KRS 61.103(3).
9
152 S.W.3d 247 (Ky.App. 2004).
-8-
Kentucky’s decision in Woodward v. Commonwealth,10 set out the
prima facie case for a violation of KRS 61.102:
In order to demonstrate a violation of
KRS 61.102, an employee must establish the
following four elements: (1) the employer
is an officer of the state; (2) the employee
is employed by the state; (3) the employee
made or attempted to make a good faith
report or disclosure of a suspected
violation of state or local law to an
appropriate body or authority; and (4) the
employer took action or threatened to take
action to discourage the employee from
making such a disclosure or to punish the
employee for making such a disclosure.[11]
In the present matter, there is no dispute that Boateng meets
the first two prongs of the test; the questions in this case
refer to the third prong:
(1) whether Boateng made a disclosure
to an appropriate body or agency; and (2), if so, whether she
did so in a timely manner.
Here, Boateng alleges that she “blew the whistle” when
she reported Burke’s violation of the site-based council’s
policy on assigning students to Burke’s supervisor, Farris, as a
result of which she was assigned more students with behavioral
problems.
We agree with the Board that not only did Boateng
fail to establish that she made a disclosure as defined by the
Act, but that she did not make her “disclosure” to an
appropriate body or authority.
10
984 S.W.2d 477 (Ky. 1998).
11
We do not agree with Boateng’s
Davidson, 152 S.W.3d at 251.
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assertion that her complaint fell within the realms of
mismanagement or abuse of authority.
Her complaint was more in
the form of an internal dispute.
Furthermore, Boateng did not make her “disclosure” to
an appropriate body or authority, as she only made her
disclosure to Burke’s direct supervisor, the Supervisor of
Elementary Schools of Fayette County, rather than to any type of
centralized agency personnel as is required by the Act.
We
agree with the Board that the doctrine of ejusdem generis is
applicable in this case as a rule of statutory construction:
“when a general word or phrase follows a list of specific
persons or things [, t]he general word or phrase will be
interpreted to include only persons or things of the same type
of those listed.”12
KRS 61.102(1) provides that the disclosure
must be made to a specific list of centralized State agencies or
to similar bodies.
Here, Boateng made her complaint to Burke’s
direct inter-office supervisor, and therefore she failed to make
a “disclosure” to an appropriate agency or person as required
under the Act.
Because we have determined that Boateng failed to
establish a prima facie case of reprisal under KRS 61.102, we
need not address the Board’s assertion that her claim was timebarred.
12
However, we agree with the Board that her claim does
Commonwealth v. Plowman, 86 S.W.3d 47, 50 (Ky. 2002).
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appear to be time-barred.
If either Burke’s imposition of the
corrective action plan in the Fall of 2001, or the May 13, 2002,
assignment of Boateng to the 2nd grade for the following school
year were to be construed as personnel actions, these dates
clearly predate the filing of the complaint on August 15, 2002,
by over ninety days.
Dr. Fankhauser’s later transfer of Boateng
into the Home Hospital program has no impact because the
transfer was later rescinded by Dr. Tennant, who transferred her
back to the School.
At that point, Burke had to be assigned to
an open position other than the 5th grade (her preferred
position) or the 2nd grade, as those positions had already been
filled.
Because Boateng failed to establish a prima facie case
of reprisal under KRS 61.102 even in a light most favorable to
her, the circuit court as a matter of law properly granted a
summary judgment in favor of the Board.
We shall next address Boateng’s retaliation claim
under KRS Chapter 344.
At the outset, we note that Boateng
argues that the circuit court sua sponte granted a summary
judgment on this cause of action as the Board did not raise it
in its motion for summary judgment.
Rather, the Board, she
maintained, argued that she had not established a claim for
racial discrimination, which Boateng asserts she never raised or
meant to raise, and did not address her retaliation claim.
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Having reviewed the record, we hold that the Board sufficiently
addressed Boateng’s retaliation claim, both in its memorandum in
support of its motion for summary judgment and to a greater
extent in its sur-reply brief.
Because the Board raised and
argued all of the claims alleged in Boateng’s complaint, the
circuit court did not sua sponte enter a summary judgment on her
retaliation claim.
KRS 344.280(1) prohibits a person from “retaliat[ing]
or discriminat[ing] in any manner against a person because he
has opposed a practice declared unlawful by this chapter, or
because he has made a charge, filed a complaint, testified,
assisted, or participated in any manner in any investigation,
proceeding, or hearing under this chapter.”
In Brooks v.
Lexington-Fayette Urban County Housing Authority,13 the Supreme
Court of Kentucky set out the prima facie case for retaliation
as follows:
A prima facie case of retaliation
requires a plaintiff to demonstrate “(1)
that plaintiff engaged in an activity
protected by Title VII; (2) that the
exercise of his civil rights was known by
the defendant; (3) that, thereafter, the
defendant took an employment action adverse
to the plaintiff; and (4) that there was a
causal connection between the protected
activity and the adverse employment action.”
13
132 S.W.3d 790, 803 (Ky. 2004), quoting Christopher v. Stouder Memorial
Hospital, 936 F.2d 870, 877 (6th Cir. 1991), cert. denied, 502 U.S. 1013, 112
S.Ct. 658, 116 L.Ed.2d 749 (1991).
-12-
It appears that Boateng is simply arguing in her brief
that she does not have to establish a racial discrimination
claim in order to prove her claim of retaliation.
While this
might be accurate, Boateng is required to prove that she engaged
in a protected activity under Chapter 344 when she was subjected
to adverse treatment by her employer, assuming that she was
subjected to such treatment.
KRS 344.040(1) prohibits an
employer from discriminating against an individual because of
that person’s race, color, religion, national origin, sex, age,
disability, or smoking habit.
Boateng has not made any effort
to establish that she was indeed engaged in a protected activity
under KRS Chapter 344.
She has specifically denied that she
made a claim for racial discrimination, even though accusations
of racial discrimination are sprinkled throughout the record.
Because there is an absence of proof in the record that Boateng
was engaged in a protected activity under KRS Chapter 344 and
because she specifically denied any racial discrimination claim,
her retaliation claim under KRS 344.280 must fail.
The circuit
court properly entered a summary judgment in favor of the Board
on this claim.
Lastly, we shall address Boateng’s claim that the
Board violated § 2 of the Kentucky Constitution by arbitrarily
assigning her to another teaching position at the School.
The
Board argues that to the extent Boateng premises this claim on
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her reprisal or retaliation claims, those specific statutory
claims would subsume her § 2 claim.
Furthermore, the Board
asserts that Boateng’s transfer was not based upon a
constitutionally impermissible reason.
§ 2 of the Kentucky Constitution provides that
“[a]bsolute and arbitrary power over the lives, liberty and
property of free men exists nowhere in a republic, not even in
the largest majority.”
In Board of Education of Ashland v.
Jayne,14 the Supreme Court of Kentucky reviewed a case in which
two teachers were transferred to other schools in the same
school system, but did not suffer from any reduction in pay or
loss of fringe benefits.
After citing KRS 161.760,15 the Court
stated:
[T]he General Assembly of Kentucky has
clearly established that a teacher who has a
contract to teach, has no absolute right to
a particular teaching job in a particular
school. The legislature has clearly given
discretion to school boards to transfer
teachers within their district. As we have
indicated, . . . Section 2 of the Kentucky
Constitution is a potential curb on this
power.[16]
14
812 S.W.2d 129 (Ky. 1991).
15
“Employment of a teacher, under either a limited or a continuing contract,
is employment in the school district only and not in a particular position or
school.”
16
Jayne, 812 S.W.2d at 132.
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The Jayne court also relied upon Bowlin v. Thomas17 for the
applicable test:
“Was the movant’s action of transferring
respondents to other jobs in the same school system, based on a
‘constitutionally impermissible reason?’”18
In that case, no
constitutionally improper reasons were presented to the jury,
such as loss of pay or fringe benefits or evidence of some form
of discrimination.
Lastly, the Jayne court held that “a jury is
not the proper vehicle or forum to determine whether a
constitutional provision has been violated. . . .
The issue of
constitutionality is a legal one, and should only be decided by
a Court.”19
In the present case, Boateng argues that she was
treated arbitrarily and capriciously when she was reassigned to
another teaching position at the School and later to the Home
Hospital program.
She maintains that the reasons given for her
reassignments were unjustified and came after her complaint to
Farris, making those reassignments arbitrary.
We disagree.
Boateng presented no evidence, other than her own testimony
without any supporting documentary evidence or other witness
testimony, that either her reassignment to the 2nd grade or her
transfer to the Home Hospital program was for any
17
548 S.W.2d 515 (Ky.App. 1977).
18
Jayne, 812 S.W.2d at 131.
19
Id. at 132 (emphasis in original).
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unconstitutionally improper reason.
Burke cited poor testing
results in Boateng’s 5th grade classes, and indicated in her email to Boateng that a 2nd grade assignment would be much less
stressful for her, as the 5th grade classes for the following
year were going to be filled with time-intensive students again.
Regarding Dr. Fankhauser’s transfer of Boateng to the Home
Hospital program, that transfer was rescinded, so even if that
action could be considered arbitrary, the action was nullified.
Because Boateng failed to establish that the actions of
reassigning and transferring her were arbitrary, the circuit
court properly granted a summary judgment in favor of the Board.
For the foregoing reasons, the Fayette Circuit Court’s
summary judgment dismissing Boateng’s complaint is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey S. Walther
Beth A. Bowell
Lexington, KY
Robert L. Chenoweth
Frankfort, KY
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