ADAMS (JOHN HENRY), ET AL. VS. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT , ET AL.Annotate this Case
RENDERED: FEBRUARY 13, 2009; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JOHN HENRY ADAMS; GEORGE A.
ELLIS, JR.; ROBERT RELFORD; AND
JAMES E. LYONS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 97-CI-00542
COUNTY GOVERNMENT; ROBERT M.
CLARK; AND JOHN TURNER
** ** ** ** **
BEFORE: THOMPSON AND VANMETER, JUDGES; HENRY,1 SENIOR
THOMPSON, JUDGE: John Henry Adams, George A. Ellis, Jr., Robert Relford,
and James E. Lyons appeal from the Fayette Circuit Court’s judgment pursuant to
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
a jury verdict dismissing Adams’ claims for racial discrimination and retaliatory
employment practices against Lexington-Fayette Urban County Government
(LFUCG) and Robert Clark. For the reasons stated herein, we affirm.
In 1981, Adams was hired as an employee of LFUCG and assigned to
the Division of Building Maintenance and Construction (BMC) as a painter.
Sometime later, Adams began experiencing what he believed to be raciallymotivated abusive treatment by his supervisor, BMC Director Robert Clark. After
Adams brought his concerns about Clark’s abusive conduct to Julius Berry, an
administrative aide to the mayor, Berry initiated an investigation of the BMC.
On September 7, 1994, Julius Berry issued a report, the “Berry
Report,” to Sam Dunn, a LFUCG employee, which documented numerous
allegations of discriminatory acts committed by Clark against BMC employees,
including claims of racism, favoritism, and cronyism. At the conclusion of the
report, Berry recommended that Clark’s employment be terminated for official
Subsequently, on May 24, 1995, Adams filed a complaint with the
Lexington-Fayette County Human Rights Commission and the Equal Employment
Opportunity Commission. Adams alleged that LFUCG had committed unlawful
employment practices by discriminating against him in violation of Kentucky
Revised Statutes (KRS) 344 and Chapter VII of the Civil Rights Act of 1964.
Following his complaint, Adams’ attendance at supervisors’ meetings
was discontinued which he believed was retaliation for filing the complaint.
Additionally, according to Adams, during 1995, he was subjected to constant
harassment and was denied advancement opportunities that were freely provided to
lesser qualified Caucasian employees.
Responding to Adams’ and other employees’ numerous complaints,
LFUCG hired Robert Roark, an attorney, to investigate the allegations of
misconduct regarding Clark’s leadership at the BMC. After his investigation,
Roark drafted a letter to Clark which was signed by then Mayor Pam Miller on
October 23, 1995. The letter listed Clark's alleged infractions and mentioned that
several employees believed Clark had engaged in racially discriminatory
In December 1995, Roark drafted a complaint to the Civil Service
Commission in which LFUCG requested the termination of Clark’s employment.
The complaint was signed by Roark and Sam Dunn. Shortly after receiving the
Mayor’s letter and the filing of the Civil Service complaint, Clark resigned his
position and ended his employment with LFUCG.
Subsequently, Clark filed a wrongful termination action against
LFUCG and Sam Dunn. Roark drafted LFUCG and Dunn’s answer to Clark's
complaint and defended against the action in court. On November 4, 1996,
LFUCG filed a motion for partial dismissal of Clark’s action. Clark’s action was
dismissed on defendants’ motion for summary judgment which was affirmed by
this Court. Clark v. LFUCG, No. 1998-CA-000892-MR, (Ky.App. June 11, 1999).
On February 10, 1997, Adams filed a complaint against LFUCG and
Robert Clark alleging that he was discriminated against in violation of KRS 344 on
the basis of race, age, and/or disability. Additionally, citing KRS 344.280, Adams
alleged that he was subjected to unlawful retaliation as a direct consequence of his
decision to seek the vindication of his civil rights. George A. Ellis, Jr., Robert
Relford, and James E. Lyons also filed racial discrimination actions against
LFUCG and some of its employees.
Adams’ and his three co-plaintiffs’ cases were consolidated and the
trial preparation for each case was conducted as if the cases would be jointly tried.
After five years, on October 8, 2002, over the objection of the plaintiffs, the trial
court issued an order severing each of the plaintiffs’ cases from each other and set
Adams’ trial for June 23, 2003.
However, Adams’ trial did not commence until February 27, 2006.
During trial, Carolyn Smith, who worked with Adams at the BMC, testified that
Clark was a “bad manager” and treated his employees poorly unless they were in
his “inner-circle.” She further testified that Adams had been excluded from the
supervisors’ meetings because of his disruptive behavior. Although Smith’s trial
testimony reflected that Adams had not been subjected to racial discrimination, her
deposition testimony, conducted several years earlier, indicated that Adams had
been subjected to racial discrimination by Clark. When asked to explain the
differing positions, Smith testified that she could not remember giving the
testimony contained in her deposition regarding Clark’s racial motivations.
Regarding Adams’ allegation that he was improperly forced to work
in close proximity to James Hume, who had allegedly threatened to kill him, Smith
testified that she was unaware of Hume’s threat before she ordered Hume and
Adams to work together. She further testified that she would have never
knowingly ordered Adams to work under these conditions. When Hume testified,
he stated that he had never threatened Adams’ life or levied racial epithets against
Regarding Adams’ allegation that he was transferred out of the BMC
in a manner contrary to governmental policies, Wayne Wilson testified that Adams
was transferred to the Division of Parks and Recreation because Adams had
repeatedly indicated that he felt threatened at the BMC. Despite being transferred,
Adams testified that he performed the same duties and received the same pay as he
received at the BMC. At the conclusion of trial, the jury returned a verdict in favor
of LFUCG and Dunn on every claim. This appeal followed.
Adams first contends that the trial court erred when it granted
LFUCG’s motion to sever Adams’ and his co-plaintiffs’ cases. Specifically, after
having previously granted LFUCG’s request to consolidate the plaintiffs’ cases for
a joint trial, the trial court severed the plaintiffs’ cases into independent actions to
be tried separately. Adams contends that the trial court’s sudden reversal of its
nine-year old consolidation order prejudiced his trial preparation because he had
planned his strategy on the basis that the four cases would be tried simultaneously.
Accordingly, Adams contends that the trial court’s decision to sever these cases
was inappropriate, unfair, prejudicial, and warrants the granting of a new trial.
Kentucky Rules of Civil Procedure (CR) 42.02 provides that “[i]f the
court determines that separate trials will be in furtherance of convenience or will
avoid prejudice, or will be conducive to expedition and economy, it shall order a
separate trial of any claim, cross-claim, counterclaim, or third party claim, or of
any separate issue or of any number of claims, cross-claims, counterclaims, third
party claims or issues.”
Furthermore, trial courts have broad discretion when ruling on
severance motions pursuant to CR 42.02. Island Creek Coal Co. v. Rodgers, 644
S.W.2d 339, 349 (Ky.App. 1982). A trial court abuses its discretion only when its
decision is arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
After reviewing the record, we conclude that the trial court did not
abuse its discretion by ordering the severance of Adams’ case from his three coplaintiffs’ cases. While Adams contends that the severance order was unfair and a
surprise, the order was issued almost three years before his jury was impaneled.
Thus, there was sufficient time for him to prepare his case for presentation to the
jury. Accordingly, under the facts of this case, the trial court’s severance order
was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Adams, Ellis, Relford, and Lyons next contend that the trial court
erred when it prevented further litigation by Ellis, Relford, and Lyons. However,
after reviewing the record, Ellis, Relford, and Lyons cannot seek relief through this
A party can only maintain an appeal from a judgment when he has
been allegedly aggrieved or prejudiced by the judgment and can have his rights
vindicated or grievances resolved in whole or in part by obtaining a reversal of the
judgment. Civil Serv. Comm’n v. Tankersley, 330 S.W.2d 392, 393 (Ky. 1959).
Moreover, even when a party is named in an action but not before the trial court,
he cannot be a proper party to an appeal. Moore v. Bates, 332 S.W.2d 636, 638
Adams’ co-plaintiffs’ cases were severed and continued until Adams’
case was adjudicated. While the severing of a trial is not a final order or judgment
from which an appeal can be taken, Adams’ co-plaintiffs were free to seek other
appropriate relief from the trial court’s ruling without prejudicing their right to
have their cases tried on the merits. Therefore, as the parties stipulated during oral
arguments, the appeals of Ellis, Relford, and Lyons, whose cases were not before
the trial court for judgment, are dismissed because their litigation remains in the
trial court for disposition.
Adams next contends that the trial court erred when it precluded the
admission of several documents into evidence. First, he contends that the trial
court erred by not admitting the entire Berry Report. The trial court ruled that any
portion of the report that contained quotes, statements, or opinions of third parties
would be excluded as inadmissible hearsay. Citing Kentucky Rules of Evidence
(KRE) 803(8) and Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 109 S.Ct. 439,
102 L.Ed.2d 445 (1988), Adams contends that the report should have been
admitted in its entirety under the public records exception to the hearsay rule.
KRE 803(8) provides the following:
Public records and reports. Unless the sources of
information or other circumstances indicate lack of
trustworthiness, records, reports, statements, or other data
compilations in any form of a public office or agency
setting forth its regularly conducted and regularly
recorded activities, or matters observed pursuant to duty
imposed by law and as to which there was a duty to
report, or factual findings resulting from an investigation
made pursuant to authority granted by law. The
following are not within this exception to the hearsay
(A) Investigative reports by police and other law
(B) Investigative reports prepared by or for a
government, a public office, or an agency when offered
by it in a case in which it is a party; and
(C) Factual findings offered by the government in
The Berry Report clearly falls within the public records hearsay
exception. It was created as a direct result of a fact-finding investigation properly
authorized by law as provided in KRE 803(8). However, notwithstanding the
public records exception to the hearsay rule, the individual entries of a public
record do not become admissible simply because the document itself is admissible
under the rule. Prater v. Cabinet for Human Res., 954 S.W.2d 954, 958 (Ky.
“If a particular entry in the record would be inadmissible for another
reason, it does not become admissible just because it is included in a business or
public record.” Id. Therefore, when a report contains statements by out-of-court
declarants, the statements of these individuals are excluded as hearsay within
hearsay, i.e., “double hearsay,” unless each statement conforms with an exception
to the hearsay rule (e.g., in a report, a doctor’s statements of a declarant’s
statements made for the purpose of medical treatment or diagnosis would be
admissible pursuant to KRE 803(4)). Id. at 958-959.
Accordingly, the trial court properly excluded those portions of the
Berry Report that contained third party statements because these statements
constituted inadmissible “double hearsay.” Adams did not offer any basis that the
third party statements in question conformed to any of our recognized exceptions
to the hearsay rule. Despite Adams’ contention, the public records exception
cannot be used as a license to obtain the carte blanche admission of every
statement contained in a public record.
Adams next contends that the trial court erred by excluding LFUCG’s
answer and motion for partial dismissal filed in the Clark wrongful termination
case. The trial court ruled that these two documents were inadmissible because
they were merely repetitive, duplicative, and redundant to other documents
previously admitted into evidence, namely Mayor Miller’s letter and LFUCG’s
Civil Service complaint against Clark. Adams contends that LFUCG’s answer and
motion for partial dismissal constituted judicial admissions that one of its directors
had engaged in racial discrimination. Additionally, Adams contends that the
documents were admissible as statements against party interest and were not
A judicial admission has been defined as “‘a formal act done in the
course of judicial proceedings which waives or dispenses with the necessity of
producing evidence by the opponent and bars the party himself from disputing it.’”
Goldsmith v. Allied Bldg. Components, Inc., 833 S.W.2d 378, 380 (Ky. 1992).
Judicial admissions should be narrowly construed and must be deliberately and
unequivocally made under circumstances that greatly minimize the probability that
the admission was a mistake. Reece v. Dixie Warehouse & Cartage Co., 188
S.W.3d 440, 448 (Ky.App. 2006). Additionally, judicial admissions are not
favored when the source of the alleged judicial admission is a separate lawsuit
involving some, but not all, of the parties to the current litigation. Goldsmith, 833
S.W.2d at 380.
LFUCG’s answer and motion for partial summary judgment were not
judicial admissions of its discrimination against Adams. The unverified answer
and motion were defenses to Clark’s wrongful termination allegation in which
LFUCG asserted every possible legal justification for his firing. Under the
circumstances, its answer and motion for partial dismissal cannot be deemed a
judicial admission that it, vicariously through Clark, engaged in discriminatory
Adams further contends that the documents constituted statements
against party interests, because they implicated a LFUCG director in racially
discriminatory employment practices. We disagree.
KRE 804(b)(3) provides, in pertinent part, that “[a] statement which
was at the time of its making so far contrary to the declarant's pecuniary or
proprietary interest, or so far tended to subject the declarant to civil ... liability, or
to render invalid a claim by the declarant against another, that a reasonable person
in the declarant's position would not have made the statement unless believing it to
be true.” While Adams contends that the two documents should have been
admitted under KRE 804(b)(3), the statements contained in the documents were
not so contrary to LFUCG’s interests, at the time the statements contained in the
documents were made, that they fall under the purview of the rule.
We likewise reject Adams’ contention that these documents contained
non-cumulative evidence. KRE 402 provides that all relevant evidence is
admissible, except when constitutional, statutory, or court rule provides otherwise,
and irrelevant evidence is inadmissible. “Nevertheless, evidence, although
relevant, may be excluded if its probative value is substantially outweighed by
considerations of waste of time or needless presentation of cumulative evidence,
particularly in a setting calculated to be embarrassing to the witness.” Ford Motor
Co. v. Zipper, 502 S.W.2d 74, 78 (Ky. 1973).
When a trial court makes rulings on the admission of evidence, it is
well established that these rulings will not be disturbed absent an abuse of
discretion. Commonwealth v. King, 950 S.W.2d 807, 809 (Ky. 1997). “The test
for abuse of discretion is whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” English, 993
S.W.2d at 945.
We conclude that the trial court did not abuse its discretion when it
excluded the answer and motion for partial summary judgment. Similar to the
answer and motion, the Mayor’s letter and LFUCG’s Civil Service complaint each
indicated that Clark had engaged in disparate and unequal treatment of BMC
employees. Thus, the contents of all of these documents were very consistent; and,
thus, the exclusion of the answer and motion for partial summary judgment due to
its cumulative nature was not an abuse of discretion.
Adams next contends that the trial court erred when it failed to admit
LFUCG’s answer to impeach Sam Dunn. Because the answer was filed on behalf
of LFUCG and Dunn, Adams contends that he should have been allowed to
impeach Dunn’s trial testimony when he denied that the Civil Service complaint
was filed partly due to Clark’s racially discriminatory treatment of AfricanAmerican employees.
KRE 801A(a)(1) permits the admission of a prior inconsistent
statement of a witness if the witness’ trial testimony is inconsistent with the prior
out-of-court admission as long as a proper foundation is laid pursuant to KRE 613.
Gray v. Commonwealth, 203 S.W.3d 679, 686-687 (Ky. 2006). When Adams
attempted to introduce the answer against Dunn for impeachment, the trial court
ruled that the document was inadmissible to impeach Dunn because he did not
prepare nor verify the answer.
We believe that the trial court did not abuse its discretion by
excluding the answer for the purpose of impeaching Dunn. Although Dunn was a
defendant in the Clark action with LFUCG, counsel solely prepared and signed the
answer. Therefore, when Dunn denied that the Civil Service complaint was based
partly on Clark’s alleged racially discriminatory conduct, Dunn could not be
impeached by the unverified answer.
Adams next contends that the trial court erred when it failed to direct
a verdict in his favor. We disagree.
When ruling on a motion for directed verdict, a trial court is under a
duty to consider the evidence in the strongest possible light in favor of the
nonmoving party and must provide the nonmoving party every favorable and
reasonable inference which can be drawn from the evidence. Lovins v. Napier, 814
S.W.2d 921, 922 (Ky. 1991). The trial court is precluded from granting a directed
verdict unless there is a complete absence of proof on a material issue in the case
or if no disputed issue of fact exists on which reasonable men could disagree.
Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky.App. 1985).
When a plaintiff alleges that he has been subjected to illegal
employment discrimination based on race, in the absence of direct evidence of
discriminatory intent, a plaintiff must satisfy the burden shifting test of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Under this test, a plaintiff can establish a prima facie case of discrimination by
showing that (1) he is a member of a protected class; (2) he was subjected to an
adverse employment decision; (3) he was qualified for the position; and (4) that
“similarly situated non-protected employees were treated more favorably.” Peltier
v. United States, 388 F.3d 984, 987 (6th Cir. 2004); Kirkwood v. Courier-Journal,
858 S.W.2d 194, 198 (Ky.App. 1993).
If the plaintiff succeeds in establishing a prima facie case of racial
discrimination, “the burden then shifts to the employer to articulate a ‘legitimate
nondiscriminatory’ reason for its action.” Turner v. Pendennis Club, 19 S.W.3d
117, 120 (Ky.App. 2000), citing Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S.
248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). “Finally, should the employer be
able to provide a ‘legitimate nondiscriminatory’ reason for not hiring the plaintiff,
the plaintiff bears the burden of showing by a preponderance of the evidence that
the ‘legitimate reason’ propounded by the employer is merely a pretext to
camouflage the true discriminatory reason underlying its actions.” Id.
We conclude that the trial court did not err when it denied Adams’
motion for a directed verdict. Taken in the light most favorable to LFUCG, both
Carolyn Smith and David Wallace testified that Clark was simply a bad supervisor
who poorly treated most of his employees regardless of race. They further testified
that Clark showed special favor to some employees, including African-Americans.
Adams further contends that Jim Hume repeatedly antagonized him
with racial epithets, yet his supervisors failed to prevent such abusive treatment.
However, Hume denied making derogatory remarks against Adams, and Adams
testified that he never heard Hume make such remarks. Specifically, with regard to
being called a “boy,” which Adams viewed to be racially demeaning, Hume
testified that he made a statement to a group of men, including Caucasians and
African-Americans, in which he said, “Boys, get to work.”
Further, there was testimony that Adams was not transferred from
BMC for racial reasons but because he had expressed safety concerns. With
respect to Adams’ contention that he was prevented from attending the
supervisors’ meeting, Smith testified that he was prohibited from attending because
of his disruptive conduct. Thus, it was not unreasonable for the jury to find that
Clark engaged in unequal employment practices but that the motivating factor was
not the race of his employees and that Adams was not subjected to retaliation.
Accordingly, after reviewing the evidence before the jury in a light
most favorable to LFUCG, the trial court did not err by denying Adams’ motion
for a directed verdict because LFUCG articulated “legitimate nondiscriminatory”
reasons for the actions regarding Adams. The evidence was also sufficient to
support the jury’s finding that Adams was not subjected to unlawful retaliation.
Adams next contends that the trial court erred by providing the jury
with inadequate and defective instructions. He contends that Instruction No. 1
required the jury to find that he had suffered a materially adverse change on the
level of a demotion or job termination. Adams argues that this evidentiary
standard is higher than what is required under Kentucky law for demonstrating a
materially adverse change. He further argues that Instruction No. 1 improperly
required that he prove that his race was the basis for the adverse action taken
against him rather than a motivating factor in Clark’s decision to engage in
discriminatory acts against him. He further contends that Verdict Form No. 1A
should not have included a fill-in-the-blank line for the jury to state the materially
adverse changes that Adams was subjected to if they found discrimination.
In Instruction No. 1, the jury was informed the following:
...only if you are satisfied from the evidence that Adams
suffered a materially adverse change(s) in the terms or
conditions of his employment based upon his race during
the period from May 20, 1990 through September 1,
2002, and Adams’ race was a motivating and determining
factor in LFUCG’s adverse action taken against him....A
materially adverse change(s) would be indicated by
termination of employment, a demotion evidence by a
decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished
material responsibilities, or other indices that might be
unique to a particular situation.
Pursuant to the instruction, Adams was not required to establish that
he was demoted or terminated. The instruction listed several other examples of
impermissible material changes, including a decrease in wage or salary, a less
distinguished title, or a material loss of benefits. Moreover, the language of
Instruction No. 1 was approved as permissible in Hollins v. Atlantic Co., 188 F.3d
652, 662 (6th Cir. 1999).
Next, Instruction No. 1 did not require that Adams prove that his race
was the sole factor for any materially adverse change. Adams had to prove only
that his race was a motivating and determining factor for why LFUCG engaged in
adverse actions against him. In “mixed motive” cases, which involve factors
beyond those prohibited by law, a jury can be instructed that the plaintiff must
prove that “but for” her protected classification (i.e., race, gender, age, etc.) she
would not have been subjected to the materially adverse action. Meyers v.
Chapman Printing Co., 840 S.W.2d 814, 823 (Ky. 1992). Therefore, because the
instruction essentially required that the jury find that Adams’ race was a “but for”
cause for LFUCG’s adverse actions, Instruction No. 1 properly conformed to
Regarding Adams’ contention that Verdict Form No. 1A and other
forms contained an impermissible fill-in-the-blank section, we note that Kentucky
law mandates that juries be provided “bare bones” instructions in all civil cases.
Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005). Instead of instructing
juries on detailed statements of law, Kentucky jury instructions should provide
only the essential legal elements and permit counsel to flesh them out during their
closing arguments. Bayless v. Boyer, 180 S.W.3d 439, 450 (Ky. 2005).
Although we encourage trial courts to give simplistic jury instructions
whenever possible, the fill-in-the-blank instruction forms, requiring the jury to
state what materially adverse actions were taken against Adams, were not
impermissible. By the use of interrogatories, Kentucky juries on occasion are
requested to make specific findings of fact as required by jury instructions.
Hilsmeier v. Chapman, 192 S.W.3d 340, 345 (Ky. 2006).
Adams next contends that Instruction No. 2 should have contained a
vicarious liability instruction because the instruction as it was written left the jury
with the misunderstanding that Clark’s and his fellow employees’ actions were not
the responsibility of LFUCG. Adams contends that the failure to include a
vicarious liability instruction created ambiguity as to whether LFUCG could be
held responsible for its employees’ discriminatory actions.
Further, Adams contends that the trial court’s use of heavily defense
oriented instructions regarding his claim of a hostile workplace did not comport
with the hostile workplace instructions approved by our Supreme Court in
Lumpkins ex rel. Lumpkins v. City of Louisville, 157 S.W.3d 601 (Ky. 2005).
Adams also contends that the inclusion of an instruction stating the legal effect of
off-duty conduct confused the jury as to where acts of discrimination took place.
After reviewing the record, Instruction No. 2 did not imply that
LFUCG could not be held responsible for the conduct of its employees for their
alleged discriminatory conduct. The instruction permitted the jury to find that
Adams worked in a hostile and abusive work environment if Adams was subjected
to racial harassment. There was nothing in the instruction that would imply that
LFUCG had to give an order or, in any other way, actively participate in
discriminatory acts at the upper levels of government. In conformity with our
“bare bones” instruction rule, Adams was free to flesh this contention out during
his closing argument.
The language of Instruction No. 2 does slightly deviate from the
instruction that was approved in Lumpkins. Id. at 604-605. After providing that
the jury should find for Adams if he worked in a hostile and abusive environment,
Instruction No. 2 provides, in pertinent part, the following:
In determining whether the work environment was
hostile or abusive based on race, you may consider any of
the following factors:
a. the frequency of the conduct or behavior based on
b. the severity of the conduct or behavior based on race;
c. whether the conduct or behavior based on race was
physically threatening or humiliating; or
d. whether the conduct or behavior based on race
unreasonably interfered with Adams' work performance.
Beyond the substitution of names, Instruction No. 2 inserted the phrase “based on
race” throughout the instruction, which was not included in the Lumpkins
While Instruction No. 2 did state “based on race” several times unlike
the Lumpkins instruction, Instruction No. 2 was not deficient or erroneous due to
the additional phrase. Although jury instructions should not give undue
prominence to certain facts or issues as stated in Kavanaugh v. Daniels, 549
S.W.2d 526, 528 (Ky.App. 1977), Instruction No. 2 simply restated the central
issue of Adams’ case rather than over emphasize a marginal or immaterial issue.
Adams further contends that the word “only” was improperly used in
Instruction No. 2 when it was not used in the instruction in Lumpkins. However,
although it was not in Lumpkins, we conclude that the word “only” found in
Instruction No. 2 was permissible. Instruction No. 2 provides that Adams succeeds
“only if you [the jury] are satisfied . . . that . . . Adams was subjected to racial
harassment . . . .” The addition of the word “only,” instead of the sentence merely
stating “if you are satisfied,” did not materially change the standard of what the
jury was required to find. Regardless of the addition or omission of the word
“only,” the jury was instructed that they had to find for Adams if he was subjected
to a hostile and abusive work environment.
Adams next contends that the trial court erred by including extraneous
language in Instruction No. 2. At the end of Instruction No. 2, the paragraph
provides that “[c]onduct outside of the workplace cannot create a hostile work
environment unless such conduct is especially severe and pervasive and the
plaintiff is required to continue working in close proximity to the person who has
harassed him outside the workplace.” Adams contends that this inclusion was
improper because it tended to confuse the jury regarding the legal standards
necessary to find discrimination.
The last paragraph in Instruction No. 2 echoes the statement of law
provided in Dowd v. United Steelworkers of America, Local No. 286, 253 F.3d
1093, 1101-1102 (8th Cir. 2001). Although Dowd is not mandatory, Kentucky
courts look to federal law for guidance in implementing the Kentucky Civil Rights
Act. Tiller v. Univ. of Kentucky, 55 S.W.3d 846, 849 (Ky.App. 2001). Further, the
locations of the alleged acts of discrimination were clear from the evidence, and
there is no indication that this instruction misled the jury.
Adams next contends that Instruction No. 4 improperly required him
to prove that he suffered a “materially adverse change” in his employment in order
to recover for retaliation and, thus, precluded his recovery for “severe and
pervasive” retaliatory harassment. Consequently, he contends that the instruction
was prejudicial because it improperly constricted what was illegal conduct.
In Brooks v. Lexington-Fayette Urban County Housing Auth., 132
S.W.3d 790 (Ky. 2004), the court held that a prima facie case of retaliation
requires the plaintiff to establish: (1) he engaged in an activity protected under
statutory law; (2) that the exercising of his civil rights was known by the
defendant; (3) that, thereafter, an adverse employment action was taken against
plaintiff by defendant; and (4) that the protected activity and the adverse
employment action were causally connected. Id. at 803.
The Supreme Court stated that “[a] materially adverse change in the
terms and conditions of employment must be more disruptive than a mere
inconvenience or an alteration of job responsibilities. A materially adverse change
might be indicated by a termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices that might be
unique to a particular situation.” Id. at 802.
Despite this definition, in Brooks, the court ruled that the plaintiff was
subjected to objectively and subjectively humiliating treatment. Id. at 804.
Further, the court held that the changes in the plaintiff’s duties “subjected her to
greater supervisory scrutiny, carried an imputed diminished level of trust, and
marked an objective decrease in prestige. It was more than a de minimis
employment action.” Id. at 804. From the Brooks decision, it is clear that
Instruction No. 4, which was identical to the definition and rule of law adopted in
Brooks, permitted relief for severe and pervasive humiliating retaliation which
injures an employee’s status.
Adams next contends that the trial court erred by failing to give the
jury a “missing evidence” instruction. Specifically, Adams contends that LFUCG
destroyed, lost, or fabricated documentation which could have determined whether
its conduct was based on racially discriminatory motives. Adams further contends
that LFUCG failed to produce the “Roark Report” file and tampered with the “Sam
Dunn File.” Accordingly, Adams contends that the trial court was required to give
a “missing evidence instruction.”
When deciding an issue regarding destroyed or missing evidence, trial
courts can remedy the matter through evidentiary rules and “missing evidence”
instructions. Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997). In making
the determination of whether to give these instructions, trial courts should decide if
the failure to produce the evidence “will substantially prejudice appellant's right to
a fair trial.” Tinsley v. Jackson, 771 S.W.2d 331, 332 (Ky. 1989). However, before
a “missing evidence” instruction can be given, there must be some intentional
conduct to hinder discovery on the part of the party who is unable to produce the
requested evidence. Estep v. Commonwealth, 64 S.W.3d 805, 810 (Ky. 2002).
Having viewed the videotaped trial testimony cited by Adams, we
conclude that there was no evidence that LFUCG intentionally destroyed evidence
favorable to Adams to prevent its use in his case. Adams has cited the testimony
of four witnesses to establish that beneficial evidence had been destroyed: (1) Sue
Boorman, a database administrator for LFUCG; (2) Timothy Bailey, a computer
analyst for LFUCG; (3) Darrylyn Combs, an employment manager for LFUCG;
and (4) Diane Wills, an employee of LFUCG Division of Human Resources.
These witnesses testified that a supervisor had suggested in the 1990’s
that LFUCG employees should shred records whenever possible to prevent their
use against LFUCG in any potential future lawsuit. However, all employees did
not comply with his request. Additionally, and most importantly, each of these
witnesses testified that they had no personal knowledge of the destruction of
documents regarding Adams’ employment or his lawsuit against LFUCG.
Despite Adams’ contention, there is no evidence that a “Roark
Report” file exists. While he did create several documents, there is no evidence
that a comprehensive report exists containing documents supporting Roark’s
findings. Further, Adams has not identified what evidence is missing from the
“Sam Dunn File” and how he was substantially prejudiced by the missing
evidence. Accordingly, we conclude that the trial court did not err by denying
Adams’ request for a “missing evidence” instruction.
Adams next contends that the trial court failed to instruct that
“disparate treatment” is legally equivalent to “discrimination.” Specifically,
because LFUCG created documents indicating that Clark had engaged in
“disparate treatment,” Adams contends that the trial court was required to instruct
the jury that “disparate treatment” means “discrimination.” Despite Adams’
contention, the trial court’s decision not to instruct the jury that “disparate
treatment” equates to “discrimination” was proper.
“Discrimination” in the context of this case constituted illegal
employment practices. “Disparate treatment” as defined by LFUCG constituted
Clark’s differing treatment of employees based on cronyism while Adams defined
the term as illegal discrimination. With this in mind, it was proper for the trial
court to exclude Adams’ requested instruction and allow Adams to “flesh out”
whether LFUCG’s “disparate treatment” of employees constituted illegal
The final issues we address concern Roark’s representation of
LFUCG. The trial court denied Adams’ request that LFUCG produce a report
purportedly authored by Roark following his investigation of the allegations of
discrimination regarding Clark, denied his request to call Roark as a witness, and
refused to disqualify him as counsel.
Both Adams and LFUCG cite two separate prior opinions of this
Court as binding on the present appeal. Adams contends that our unpublished
decision in Clark v. LFUCG, 46 K.L.S. 9, 14 (1999), wherein we stated that
“Roark was subject to being deposed on the basis of his investigation” precludes
the present Court from affirming the trial court. LFUCG asserts that our denial of
Adams’ motion for CR 76.36 relief following the trial court’s denial of his motion
to disqualify Roark and the production of his investigative report precludes further
review of the issues.
The arguments of both are advanced pursuant to the doctrine of res
adjudicata which bars relitigation of causes of action and of facts or issues
previously litigated as to the parties and their privies in all other actions in the
same or other judicial tribunal of concurrent jurisdiction. Yeoman v. Com. Health
Policy Bd., 983 S.W.2d 459, 464 (Ky. 1998). Neither Adams nor LFUCG present
the requisites necessary for the application of res adjudicata or its counterpart,
issue preclusion. Id.
The Clark litigation was a wrongful termination action to which
Adams was not a party; thus, there is no identity of the parties. LFUCG cannot
rely on this Court’s denial of Adams’ writ of mandamus because it was not a
decision on the merits. Our decision was premised on the nature of the relief
requested and our conclusion that Adams had an adequate remedy by appeal and,
thus, could not establish the need for the extraordinary relief requested.
Consequently, we reject both contentions and consider the issues presented.
LFUCG denies that Roark retained a file regarding his investigation or
that he authored a document containing the details of his investigation and the
conclusion reached. Adams’ contrary contention is based on his assumption that
Roark has possession of the documents sought rather than any proof that the
documents exist. However, even if we accept Adams’ assumption as correct, we
conclude that the documents sought are not discoverable.
The attorney-client privilege is a long-standing common law concept
that provides absolute protection from the disclosure of confidential
communications made by or to a person advising with an attorney for the purpose
of obtaining legal advice. St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 775
(Ky. 2005). Thus, if the communications shared are not made in confidence to a
lawyer for the purpose of obtaining legal advice, the communications are not
shielded under the attorney-client privilege. Sanborn v. Commonwealth, 892
S.W.2d 542, 550 (Ky. 1994).
Documents and materials prepared in anticipation of trial are likewise
shielded from discovery. CR 26.02(3); Wal-Mart Stores, Inc. v. Dickinson, 29
S.W.3d 796, 805 (Ky. 2000). However, work product material is discoverable
when a “party seeking discovery has substantial need of the materials in the
preparation of his case and that he is unable without undue hardship to obtain the
substantial equivalent of the materials by other means.” CR 26.02(3).
Roark was hired by LFUCG to investigate the allegations of
discrimination by Clark. Although in 1995, when Roark was hired to perform the
investigation, there was no pending litigation. The nature of the allegations caused
LFUCG to reasonably believe that the aggrieved employees would file civil actions
and, therefore, hired counsel to investigate. Under the circumstances, we conclude
that any records or reports compiled as a result of Roark’s investigation constitute
work product. Any possible hardship caused to Adams was rectified by the trial
court’s order that required LFUCG to provide a list of the individuals interviewed
during Roark’s investigation permitting Adams to obtain the substantial equivalent
of the information sought by deposing the individuals interviewed during the
The final issue we address is whether Roark should have been
disqualified from representing LFUCG. For the reasons that follow, we affirm the
trial court’s refusal to disqualify Roark.
Adams contends that Roark was a necessary witness and, thus, was
precluded from representing LFUCG at trial. The genesis of his contention is Rule
3.7 of the Kentucky Rules of Professional Conduct (Supreme Court Rule 3.130),
which provides in part:
(a) A lawyer shall not act as an advocate at a trial in
which the lawyer is likely to be a necessary witness
(1) The testimony related to an uncontested issue;
(2) The testimony relates to the nature and value of legal
services rendered in the case; or
(3) Disqualification of the lawyer would work a
substantial hardship on the client.
If, as Adams asserts, because of Roark’s investigation of the claims of
discrimination made by the LFUCG employees against Clark he was a necessary
witness, his representation of LFUCG at trial would pose an ethical problem.
However, our Supreme Court has expressly declined to equate ethical rules with
evidentiary matters that are left within the discretion of the trial court. Zurich
Insurance Company v. Knotts, 52 S.W.3d 555 (Ky. 2001). Further analysis is
The issue of attorney disqualification because of his or her potential as
a necessary witness at trial arises in two contexts: When called as a witness by the
client or when called by the opposing party. In the first situation, there is the
question of prejudice to the opposing party while in the latter the focus is that
incurred by the litigant represented by the attorney.
When opposing counsel is subpoenaed as a witness, courts have been
cautious to scrutinize the reason for the subpoena so that ethical rules are not used
as a weapon to disqualify opposing counsel. See Taylor v. Grogan, 900 P.2d 60
(Colo. 1995). Thus, courts are required to balance the right of a litigant to counsel
of his choice against that of the opposing litigant’s right to present his case. When
counsel serves the duel function of witness and attorney, the commentary to Rule
3.7 suggests the following:
[A] balancing is required between the interests of the
client and those of the opposing party. Whether the
opposing party is likely to suffer prejudice depends on
the nature of the case, the importance of the lawyer’s
testimony, and the probability that the lawyer’s testimony
will conflict with that of other witnesses. Even if there is
risk of such prejudice, in determining whether the lawyer
should be disqualified due regard must be given to the
effect of disqualification on the lawyer’s client.
SCR 3.130-3.7, Comment (4).
When considering the question of attorney disqualification, the court
must anticipate the evidentiary issues that might arise as well as what impact the
attorney’s involvement with the case will have on the jury. The rule is designed to
avoid public perception that the lawyer is distorting the truth or enhancing his or
her own credibility and the confusion created by the role of advocate and that of a
witness. Zurich, 52 S.W.3d at 558.
Although in Zurich, the Court expressly rejected the argument that the
trial court is an enforcer of the Professional Code of Conduct, it vested the court
with discretion to disqualify counsel. Yet, it added the caveat that because of the
possible prejudice to the client, disqualification should be imposed only when
absolutely necessary. Id. at 560. We now turn our attention to the present case.
The trial court refused to disqualify Roark as counsel. Adams
contends that Roark’s involvement in the underlying investigation was crucial to
its case and, as a consequence, he was a necessary witness. With reservation, we
It is undeniable that Adams had access to the individuals interviewed
during the investigation and the opportunity to depose those interviewed.
Although Adams contends that Roark was a necessary witness to discern the scope
and substance of his investigation, he fails to allege what additional information
could have been gained by Roark’s testimony. There is no evidence that Roark
had any specialized or personal knowledge that could not be gained from other
Adams also makes the broad assertion that Roark’s participation in
Clark’s dismissal from LFUCG cast him as a “liar” when, at Adams’ trial, he
asserted the defense that Adams was not discriminated against and, in closing
argument, that the mayor’s letter did not indicate racial discrimination. Under the
circumstances where the attorney has actively participated in an investigation such
as preceded the present action, opposing counsel and the trial court must be
particularly astute and preclude counsel from “testifying” before the jury during
opening and closing argument. If the attorney has misstated the testimony of the
witnesses or goes outside of the record to corroborate his argument, upon proper
objection by opposing counsel, the trial court should inform the jury of the correct
testimony. See Smith v. Wright, 512 S.W.2d 943 (Ky. 1974).
However, having reviewed the record, we find no reason to believe
that Roark was dishonest with the court concerning his participation in the
investigation. He was a zealous advocate for his client. Again, we emphasize that
disqualification is a drastic action taken only when absolutely necessary. Id.
Accordingly, we can see no prejudice caused by the trial court’s refusal to permit
Adams to call Roark as a witness and its denial of Adams’ motion to disqualify
For the foregoing reasons, the judgment of the Fayette Circuit Court is
affirmed. The appeals of Ellis, Relford, and Lyons are dismissed because their
litigations were not concluded or a part of the trial court’s judgment in this appeal.
BRIEFS FOR APPELLANTS:
James M. Morris
Sharon K. Morris
ORAL ARGUMENT FOR
James M. Morris
BRIEF FOR APPELLEE,
Robert L. Roark
Jeffrey S. Walther
Erica L. Keenan
ORAL ARGUMENT FOR
APPELLEE, LEXINGTONFAYETTE URBAN COUNTY
Jeffrey S. Walther