BURTON (REBECCA) VS. KENTUCKY STATE POLICE , ET AL.
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RENDERED: APRIL 1, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000292-MR
REBECCA BURTON
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 08-CI-02113
KENTUCKY STATE POLICE; TRACY COLLINS;
ANTHONY TERRY; CURT HALL; AND
JOHN JACK ADAMS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND COMBS, JUDGES; LAMBERT,1 SENIOR JUDGE.
CAPERTON, JUDGE: Rebecca Burton appeals from the grant of summary
judgment in favor of the Appellees - the Kentucky State Police (“KSP”), Tracy
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
Collins,2 Anthony Terry,3 Curt Hall,4 and John Jack Adams5 - by the Franklin
Circuit Court. On appeal Burton asserts that the trial court erred in its grant of
summary judgment. After a thorough review of the parties’ arguments, the record,
and the applicable law, we disagree with Burton and, accordingly, affirm.
The facts that give rise to this appeal stem from Burton’s brief stint6 as a
Cadet Trooper at the Kentucky State Police training academy. While at the
training academy, Burton was subjected to an environment similar to military basic
training. During a running exercise, Burton alleges that one of the instructors, Ms.
Tracy Collins, shouted at Burton, “Do you have on a sports bra? You disgust me.”
Burton also alleges that Collins used profanity in her presence when she stated
“Just go ahead and kick the s**t out of the wall.” Burton also alleges that the
Cadets were not allowed to sleep or rest for twenty-four hours, that they were
required to fill their drinking containers from a hose, and that bleeding7 Cadets
were required to share meal tables with others.8
2
Collins was Burton’s instructor at the KSP training academy, and allegedly shouted profanities
at Burton and suggested she also put on a sports bra during a run.
3
Terry was the KSP Academy Commander. Burton alleges that he failed to properly supervise
his staff.
4
Hall was also an instructor at the KSP Academy, and allegedly witnessed the comments made
by Collins and failed to report said comments to his commanding officer.
5
Adams was the KSP Commissioner.
6
Burton was a Cadet Trooper from September 9 through September 10, 2007.
While at first blush the incident concerning blood appears troubling, Appellees explained that
this incident involved a Cadet who cut himself shaving and that Burton does not claim to have
been exposed to any of the blood, nor does she know if the Cadet was situated close to her.
7
8
Let us envision what may likely be the responsibilities of Kentucky State Troopers. Certainly
all Troopers need to exhibit courteous conduct and polite demeanor when the situation demands
such response, but these individuals must be psychologically prepared and physically adept to
correctly respond to emergency situations, whether those be the oft publicized “raids,” gun
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Thereafter, Burton resigned from her employment with the Kentucky State
Police9 and subsequently filed a complaint with the Kentucky Commission on
Human Rights (“KCHR”), alleging that she had been sexually harassed during her
employment. KCHR dismissed the complaint on March 20, 2008, based on a
finding of no probable cause. On November 3, 2008, Burton filed her complaint
with the trial court, alleging hostile work environment, sexual harassment,
constructive discharge, and intentional infliction of emotional distress against the
Appellees. The Appellees moved the trial court for summary judgment, asserting
that the claims against the KSP were barred by the doctrine of election of remedies
and governmental immunity; that the claims against the individuals were barred by
the doctrine of qualified immunity; and that Burton’s claims simply could not be
sustained on their merits.
The trial court agreed with the Appellees that they were entitled to summary
judgment based on the doctrine of election of remedies, and that they were entitled
to official immunity and qualified immunity. Additionally, the trial court found
that, even conceding all facts alleged by Burton to be true, she had failed to state a
claim upon which relief can be granted. The trial court found that her allegations
were not sufficient to sustain her claims of hostile work environment, sexual
harassment, constructive discharge, or intentional infliction of emotional distress.
battles, apprehending fleeing criminals, or protection of the public, to name only a few. We must
also not forget that they must survive life-threatening situations while performing their duties
and may be called upon to give their life in the performance of their duties, certainly not a calling
for those who are timid and weak or lack either resolve or strong personal conviction in their
duties.
9
Burton informed the KSP on the exit forms that her reason to resign on September 10, 2007,
was due to her physical limitations
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The trial court determined that if Burton’s allegations - that she was treated crudely
and was perhaps subjected to verbal abuse - were true, that such treatment did not
establish a violation of her rights. She had not alleged any disparate treatment
based on gender, and the trial court further noted that it is undisputed that many
women have successfully completed the KSP academy. The trial court
additionally noted that the alleged behavior is not outside the bounds of acceptable
conduct in a military-style training program in which the cadets are required to be
subjected to stressful situations. Given that troopers on the road are subjected to
much worse verbal abuse from the public, and must be prepared to not overact to
such abuse, the trial court determined that it is important to the KSP to see how
cadets react to stressful situations, and that the academy is not a finishing school or
a purely academic program. Thus, the trial court concluded that the record did not
contain sufficient evidence to establish a prima facie case that Burton’s rights were
violated during her brief time as a trooper cadet, and granted the Appellees’ motion
for summary judgment. It is from those findings that Burton now appeals.
On appeal, Burton presents two arguments; namely, that the Appellees were
not entitled to summary judgment, and that Burton was treated unlawfully by the
Appellees. The Appellees counter-argue that the trial court properly granted
summary judgment for a number of reasons, more specifically, the doctrine of
election of remedies, the Appellees were entitled to governmental immunity, and
individual Appellees were entitled to qualified immunity. The Appellees argue
first that Burton’s KRS Chapter 344 claim against KSP is barred by the doctrine of
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election of remedies. Second, that Burton’s intentional infliction of emotional
distress (“IIED”) claim against KSP and official capacity defendants was properly
dismissed due to the KRS Chapter 344 claim, governmental immunity, and that the
IIED claim must fail against the individual defendants based on the elements
composing a claim of IIED. Third, Burton’s Chapter 344 claim fails on the merits.
Fourth, the individual defendants were entitled to qualified immunity on the IIED
claim. With these arguments in mind, we now turn to the applicable law.
At the outset we note the applicable standard of review on appeal of a grant
of 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). Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Kentucky Rules of Civil Procedure (CR) 56.03. The trial court must view
the record “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
Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Thus, summary judgment
is proper only “where the movant shows that the adverse party could not prevail
under any circumstances.” Id.
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However, “a party opposing a properly supported summary judgment
motion cannot defeat that motion without presenting at least some affirmative
evidence demonstrating that there is a genuine issue of material fact requiring
trial.” Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992), citing Steelvest, supra.
See also O'Bryan v. Cave, 202 S.W.3d 585, 587 (Ky. 2006); and Hallahan v. The
Courier Journal, 138 S.W.3d 699, 705 (Ky. App. 2004). Since summary judgment
involves only legal questions and the existence of any disputed material issues of
fact, an appellate court need not defer to the trial court's decision and will review
the issue de novo. Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App.
2001).
The trial court’s grant of summary judgment was premised upon three
grounds: 1) the doctrine of election of remedies, 2) the Appellees’ entitlement to
official immunity and qualified immunity, and 3) Burton’s failure to establish a
claim upon which relief could be granted. On appeal, Burton has failed to address
the trial court’s judgment wherein it concluded that the Appellees were entitled to
official and qualified immunity; therefore, we decline to conduct an independent
review of this conclusion of the trial court and, accordingly, affirm the grant of
summary judgment upon these grounds. See Milby v. Mears, 580 S.W.2d 724, 727
(Ky. App. 1979).
Next, we turn to the trial court’s conclusion that the Appellees were entitled
to summary judgment based on the doctrine of election of remedies. In the case
sub judice, Burton filed a complaint with the Kentucky Commission on Human
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Rights, alleging that she had been sexually harassed during her employment.
KCHR dismissed the complaint on March 20, 2008, based on a finding of no
probable cause. Instead of seeking redress of that finding by the KCHR, on
November 3, 2008, Burton filed her complaint with the trial court, alleging hostile
work environment, sexual harassment, constructive discharge, and intentional
infliction of emotional distress against the Appellees. We agree with the trial court
that Burton’s claim before the court was barred by the doctrine of election of
remedies. KRS 344.270 states:
The provisions of KRS 13B.140 notwithstanding,
commission shall not take jurisdiction over any claim of
an unlawful practice under this chapter while a claim of
the same person seeking relief for the same grievance
under KRS 344.450 is pending. A state court shall not
take jurisdiction over any claim of an unlawful practice
under this chapter while a claim of the same person
seeking relief for the same grievance is pending before
the commission. A final determination by a state court or
a final order of the commission of a claim alleging an
unlawful practice under KRS 344.450 shall exclude any
other administrative action or proceeding brought in
accordance with KRS Chapter 13B by the same person
based on the same grievance.
Moreover, in Vaezkoroni v. Domino's Pizza, Inc., 914 S.W.2d 341 (Ky. 1995), our
Kentucky Supreme Court determined that a finding of “No Probable Cause” by a
county human rights commission barred a subsequent employment discrimination
claim under KRS Chapter 344 in circuit court, and noted:
It is well settled that “[t]he Act provides alternative
sources of relief, one administrative and one judicial.”
Meyers v. Chapman Printing Co., Ky., 840 S.W.2d 814,
820 (1992). Given this reasoning, it is absurd to assume
that an individual could in fact have the opportunity to
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choose between local or state administrative remedies
and then still have the option of judicial relief.
Vaezkoroni at 342.
In the case sub judice, Burton sought relief for the alleged violation of her
civil rights from the KCHR and obtained a final determination from KCHR, which
she did not contest. Thereafter, Burton filed another claim with the circuit court
seeking relief based on the same grievance. As elucidated by Vaezkoroni and as
set out in KRS 344.270, Burton’s subsequent litigation in circuit court was barred.
The trial court correctly determined that the Appellees were entitled to summary
judgment based upon the doctrine of election of remedies. Accordingly, we affirm
the grant of summary judgment upon this ground.
Last, we address the trial court’s grant of summary judgment to the
Appellees and against Burton for failure to establish a claim for sexual harassment
and hostile work environment, or IIED.10 In Ammerman v. Board of Educ. of
Nicholas County, 30 S.W.3d 793 (Ky. 2000), the Kentucky Supreme Court
addressed sexual harassment and hostile work environment:
In 1986, the United States Supreme Court decided
the watershed case of Meritor Saving Bank v. Vinson,
which held that a sexual harassment claim can be brought
based upon a hostile or abusive work environment. For
sexual harassment to be actionable under the Meritor
standard, it must be sufficiently severe or pervasive so as
to alter the conditions of the plaintiff's employment and
create an abusive working environment. In other words,
hostile environment discrimination exists “when the
workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive
10
Burton does not specifically address her claim of constructive discharge; thus, we decline to
address it. See Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979).
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to alter the conditions of the victim's employment and
create an abusive working environment.” Moreover, the
“incidents must be more than episodic; they must be
sufficiently continuous and concerted in order to be
deemed pervasive.” As stated by the United States
Supreme Court in Harris v. Forklift Systems, the
harassment must also be both objectively and
subjectively offensive as determined by “looking at all
the circumstances.” These circumstances may include
“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.”
Ammerman at 798 (internal citations omitted).
In light of Ammerman, we agree with the trial court that Burton failed to
establish claims for sexual harassment and hostile work environment. While
Burton’s treatment at the Kentucky State Police Academy may have been different
from what would be expected in the private-sector work environment, it was not
severe or pervasive enough to satisfy the standards articulated by Ammerman.
Thus, the trial court correctly determined that Burton had failed to establish a claim
for sexual harassment and hostile work environment.
We also agree that Burton failed to establish a claim for IIED. This Court,
in Wilson v. Lowe's Home Center, 75 S.W.3d 229 (Ky.App. 2001), addressed the
tort of IIED and noted:
The tort of IIED was first recognized by the
Kentucky Supreme Court when it adopted the
Restatement (Second) of Torts, § 46 in Craft v. Rice, Ky.,
671 S.W.2d 247, 251 (1984). The court adopted the
following:
§ 46. Outrageous Conduct Causing Severe
Emotional Distress
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(1) One who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional
distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results
from it, for such bodily harm.
Id. In Kroger Co. v. Willgruber, Ky., 920 S.W.2d 61
(1996), the Kentucky Supreme Court stated that
“[c]itizens in our society are expected to withstand petty
insults, unkind words and minor indignities. Such
irritations are a part of normal, every day [sic] life and
constitute no legal cause of action. It is only outrageous
and intolerable conduct which is covered by this tort.” Id.
at 65.
Wilson at 237.
In the case sub judice, the facts alleged by Burton during her brief time at
the KSP Academy could be considered impolite and discourteous; however, they
simply did not arise to the level of outrageous conduct required by Wilson.
Accordingly, the trial court did not err in granting summary judgment on this issue.
In light of the foregoing, we affirm the grant of summary judgment to the
Appellees.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Robert L. Bertram
Jamestown, Kentucky
Roger G. Wright
Frankfort, Kentucky
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