JONES (ANDREW) VS. HAZELWOOD CENTER , ET AL.Annotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT, FIFTH DIVISION
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 04-CI-001018
HAZELWOOD CENTER AND
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND FAMILY
** ** ** ** **
BEFORE: LAMBERT AND MOORE, JUDGES; BUCKINGHAM,1 SENIOR
BUCKINGHAM, SENIOR JUDGE: Andrew Jones appeals from a summary
judgment entered by the Jefferson Circuit Court in favor of Hazelwood Center and
the Cabinet for Health and Family Services. Jones had filed a civil complaint
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
against Hazelwood and the Cabinet alleging racial discrimination in connection
with the termination of his employment at Hazelwood. We affirm.
The Cabinet is a state agency, and Hazelwood is a state facility
operated by the Cabinet for the benefit of emotionally disabled persons and their
families. Hazelwood is located in Louisville.
Jones began working for Hazelwood as a part-time psychologist in
1989. In 1992 he began working full time for Hazelwood, and in 1998 he became
the head of Hazelwood’s Psychology Department. Hazelwood terminated Jones’s
employment effective January 31, 2003.
Jones, a member of a minority race, filed a civil action in the Jefferson
Circuit Court against Hazelwood and the Cabinet on November 6, 2004. On
January 29, 2007, the court granted summary judgment in favor of Hazelwood and
the Cabinet. Jones then filed a motion to alter, amend, or vacate, which the court
denied. This appeal by Jones followed.
Before the trial court, Jones first argued he was wrongly discharged
from his employment due to allegations that he was involved in sexual harassment
in the workplace. He asserted that two other nonminority employees, who he
claims were involved in similar conduct, were not discharged. However, Jones
later argued to the court that the reasons for his discharge were “irrelevant to these
proceedings” and that the sole issue before the court was whether race
discrimination occurred throughout the period of his employment. He now rests
his discrimination claim on the single event surrounding his failure to be appointed
head of the newly-created Behavioral Services Department at Hazelwood.
Jones was head of Hazelwood’s Psychology Department. At one
point during Jones’s employment, Hazelwood decided to split the Psychology
Department into two sections, leaving a Psychology Department with Jones as its
head and a Behavioral Services Department. It appointed a Caucasian as head of
the Behavioral Services Department. Jones claims he was a victim of race
discrimination in connection with the appointment.
Jones testified in his deposition that he disagreed with Hazelwood’s
decision to have two separate departments. He also testified that ideally he wanted
to be head of both psychology and behavioral services. In his brief, Jones
characterized his failure to move from head of the Psychology Department to head
of the Behavioral Services Department as a “failure-to-promote.”
On the other hand, Hazelwood asserted to the trial court that the
candidate selected was qualified, a point that Jones did not dispute. Additionally,
it stated that Jones had never expressed an interest in the position. Finally, noting
that Jones had never alleged prior to this appeal that this was a “failure-topromote” case, Hazelwood responds in its brief that had Jones been hired as head
of the Behavioral Services Department, the move would have been a lateral one
and not a promotion. Therefore, Hazelwood contends that Jones could not have
been subjected to an adverse employment action in connection with his failure to
get the appointment.
Under the Kentucky Civil Rights Act, employers may not discriminate
against employees based on race. Kentucky Revised Statutes (KRS) 344.040.
“Kentucky courts generally follow federal law in interpreting the Kentucky
discrimination statute.” Stewart v. University of Louisville, 65 S.W.3d 536, 539
Claims for disparate treatment brought pursuant to the statute must
proceed under the three-part burden-shifting analysis in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The
first step requires the employee to establish a prima facie case of discrimination.
411 U.S. at 802. If a prima facie case of discrimination is established, the burden
shifts to the employer to “articulate some legitimate nondiscriminatory reason” for
the adverse employment action. Id. Finally, if the employer meets the second
step, the employee has the burden of proving that the employer’s response is
merely a pretext for discrimination. Id. at 804.
In “failure-to-promote” cases, the employee must establish a prima
facie case by demonstrating that: 1) the employee is a member of a class of
persons protected by the statute; 2) the employee applied for and was qualified for
a promotion; 3) despite his or her qualifications, the employee was considered for
and denied the promotion; and 4) another employee who was not a member of the
protected class received the promotion. Dews v. A.B. Dick Company, 231 F.3d
1016, 1020-21 (6th Cir. 2000).
In its orders, the trial court apparently concluded that Jones
established a prima facie case of discrimination. It thereafter referenced the
reasons given by Hazelwood for not appointing Jones as head of the Behavioral
Services Department. Finally, the trial court awarded Hazelwood summary
judgment on the ground that Jones had failed to present any “cold hard facts” that
race was a determining factor in his not getting the appointment. See Kentucky
Center for the Arts v. Handley, 827 S.W.2d 697, 700-01 (Ky.App. 1991), citing
Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226 (Ky. 1984).
As a general rule, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996). “The
inquiry should be whether, from the evidence of record, facts exist which would
make it possible for the non-moving party to prevail. In the analysis, the focus
should be on what is of record rather than what might be presented at trial.” Welch
v. American Publ’g Co. of Kentucky, 3 S.W.3d 724, 730 (Ky. 1999). “The record
must be viewed in a light most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc.
v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Because the trial
court did not involve itself in fact finding, we review the decision de novo. Blevins
v. Moran, 12 S.W.3d 698, 700 (Ky.App. 2000).
We disagree with the trial court’s apparent conclusion that Jones
established a prima facie case for race discrimination.2 While it is true that Jones
is a member of a protected class of individuals, that he may have applied for the
job (although this issue is in dispute), that he may have been qualified for it, and
that a Caucasian was hired instead, we see no evidence that Hazelwood’s failure to
hire him constituted an adverse employment action.
Jones has pointed to nothing in the record to indicate that he argued
his case to the trial court as a “failure-to-promote” case. More importantly, as
argued by Hazelwood in its brief, the move from being head of the Psychology
Department to head of the Behavioral Services Department would have been a
lateral transfer as the new position carried no additional salary or other benefits.
The denial of such a lateral transfer, assuming Jones had actually sought it, would
not have been a materially adverse employment action by Hazelwood. See
Mitchell v. Vanderbilt Univ., 389 F.3d 177, 183 (6th Cir. 2004) (“Non-selection for
a position of employment is not always an adverse employment action. In cases
where the sought position is a lateral transfer, without additional benefits or
prestige, it would be improper to conclude that a denial of such transfer would be a
materially adverse action.”).
Having concluded that Jones did not establish a prima facie case for
discrimination, the remaining issues under the McDonnell Douglas test are moot.
“[A]n appellate court may affirm a trial court for reasons other than those relied on by the trial
court, so long as such is sustainable under the record.” Brewick v. Brewick, 121 S.W.3d 524, 527
The judgment of the Jefferson Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
Ronald W. Crawford