KENTUCKY DEPARTMENT OF CORRECTIONS AND DEWEY SOWDERS V PATRICIA McCULLOUGH
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RENDERED : AUGUST 21, 2003
AS MODIFIED : JANUARY 22, 2004
TO BE PUBLISHED
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of
2000-SC-0727-DG
AND
2001-SC-0146-DG
KENTUCKY DEPARTMENT OF CORRECTIONS
AND DEWEY SOWDERS
APPELLANTS/CROSS-APPELANTS
V
ON REVIEW AND CROSS-REVIEW FROM COURT OF APPEALS
1998-CA-1403-MR AND 1998-CA-1422-MR
BOYLE CIRCUIT COURT NO. 1995-CI-0341
PATRICIA McCULLOUGH
APPELLEE/CROSS-APPELLANT
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
Appellee and Cross-Appellant, Patricia McCollough, brought suit against
Appellants and Cross-Appellees, the Kentucky Department of Corrections and Warden
Dewey Sowders, alleging gender discrimination and unlawful retaliation in violation of
the Kentucky Civil Rights Act ("KCRA") . The jury found for Appellants on McCollough's
gender-discrimination claim and found for McCollough on her unlawful-retaliation claim .
Appellants appealed and McCollough cross-appealed . The Court of Appeals affirmed in
part, vacated in part and remanded with instructions . On discretionary review, both
sides raise a number of interesting and important issues, including whether McCollough
established a prima facie case of retaliation and whether punitive damages are
available under the KCRA. For the reasons set forth below, we affirm in part and
reverse in part.
I.
Facts and Procedural History
McCullough is employed as a correctional officer at the Northpoint Training
Center (Northpoint) . On January 29, 1987, she filed an Equal Employment Opportunity
("EEO") complaint with the Department of Corrections . In the complaint, she alleged
that she had been sexually harassed by Lt. W . W. Gribbins, who was her superior
officer at the time. McCullough alleged that after she volunteered to work in a dormitory
unit, Lt. Gribbins told her that women were not allowed to work in dormitory units and
then made inappropriate comments of a sexual nature . As a result of the complaint, Lt.
Gribbins made a formal, written apology and was voluntarily demoted to the rank of
sergeant . Further, prison policy was changed to permit women to work in dormitory
units . McCullough was the first person to benefit from this policy change when she was
allowed to take on the work assignment for which she had volunteered .
Between filing the EEO complaint in January 1987 and filing the underlying
lawsuit against Appellants in August 1995, McCullough applied for promotion to the
rank of sergeant twenty-four times and applied for promotion to the rank of unit
administrator twice . She was passed over for promotion all twenty-six times . After
withdrawing her name from consideration for promotion for the twenty-seventh time,
she filed suit alleging gender discrimination and unlawful retaliation in violation of the
KCRA.
McCullough's case proceeded to trial . The jury found against her on the genderdiscrimination claim, for her on the retaliation claim and awarded her $120,000 .00 in
compensatory damages and $120,000 .00 in punitive damages . In response to post-
trial motions by both parties, the trial court set aside the punitive damages award,
awarded McCullough $50,000 .00 in attorneys' fees, and ordered Appellants to
pay her court costs and interest on the judgment as provided by law. Additionally, the
trial court granted McCullough's request for injunctive relief by ordering Appellants to
promote her to the rank of sergeant .
Appellants appealed and McCullough cross-appealed . The Court of Appeals
affirmed the award for compensatory damages and costs, vacated the award for
interest and attorneys' fees, and vacated that portion of the trial court's order setting
aside the punitive damages award . Additionally, the Court of Appeals vacated the trial
court's order denying McCullough an instruction on punitive damages against Warden
Dewey Sowders and remanded the case to the trial court to reconsider attorneys' fees
and to allow McCullough to pursue her claim for punitive damages against Sowders .
We accepted discretionary review in part to address the question of whether
KRS 344.450 provides for an award of punitive damages . Additional arguments
concern whether the trial court erred in denying Appellants' motion for a directed
verdict, whether the trial court erred in ordering post-judgment interest and whether
McCullough was entitled to a missing evidence instruction . Upon careful review, we
affirm the Court of Appeals' holding that Appellants were not entitled to a directed
verdict and affirm its holding that post-judgment interest cannot be assessed against
the Commonwealth under the KCRA. We reverse its holding that punitive damages are
available under the KCRA. Finally, we dismiss as moot its holding that McCullough was
not entitled to a missing evidence instruction.
II .
Discussion
A.
Directed Verdict: Retaliation
KRS 344.280(1) makes it unlawful for a person :
To retaliate or discriminate 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.
A claim for unlawful retaliation requires the plaintiff to first establish a prima facie
case of retaliation, which consists of showing that "(1) she engaged in a protected
activity, (2) she was disadvantaged by an act of her employer, and (3) there was a
causal connection between the activity engaged in and the [defendant] employer's act."
Kentucky Center for the Arts v. Handley , Ky. App., 827 S.W.2d 697, 701 (1991), citing
De Anda v. St. Joseph Hospital , 671 F.2d 850, 856 (1982). In a case where there is no
direct evidence of retaliation, as is the case here, the burden of production and
persuasion follows the familiar McDonnell Douglas framework . Under this framework,
after the plaintiff establishes a prima facie case of retaliation, the burden of production
shifts to the defendant to show a non-retaliatory reason for the adverse employment
decision that disadvantaged the plaintiff . Id. After the defendant has met this burden,
"the McDonnell Douglas framework is no longer relevant ." St. Mary's Honor Center v.
Hicks , 509 U.S. 502, 510, 113 S. Ct. 2742, 2748, 125 L . Ed. 2d. 407, 418 (1993). This
is because "the McDonnell Douglas presumption is a procedural device, designed only
to establish an order of proof and production ." Id . at 521, 113 S. Ct. at 2755, 125 L. Ed.
2d . at 425 (emphasis in original) . At this point, the case then proceeds with the plaintiff
having to meet her initial burden of persuading the trier of fact by a preponderance of
the evidence that the defendant unlawfully retaliated against her. Reeves v. Sanderson
Plumbing Products, Inc. , 530 U .S. 133, 143, 120 S . Ct . 2097, 2106, 147 L. Ed . 2d . 105,
117 (2000).
To meet her burden of persuasion, the plaintiff "must be afforded the opportunity
to prove by a preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for [retaliation] ." Reeves , 530
U . S . at 143, 120 S. Ct. at 2106, 147 L. Ed . 2d . a t 117 . Proof that the defendant's nonretaliatory reasons are "unworthy of credence is simply one form of circumstantial
evidence that is probative of intentional discrimination, and it may be quite persuasive."
Id . at 147, 120 S . Ct . a t 2108, 147 L . Ed . 2d at 119-20. Consequently, "a plaintiffs
prima facie case, combined with sufficient evidence to find that the defendant's
asserted justification is false, may permit the trier of fact to conclude that the employer
unlawfully [retaliated against the plaintiff] ." Id . at 148, 120 S . Ct . at 2109, 147 L . Ed. 2d .
at 120. In other words, a plaintiffs prima facie case plus proof of a pretext may
constitute sufficient evidence to survive a motion for a directed verdict.
On appellate review, when determining whether the trial court erred in denying a
motion for directed verdict, the non-moving party's evidence is taken as true and the
non-moving party is entitled to all reasonable inferences that may be made from the
evidence. Lewis v. Bledsoe Surface Mining , Ky., 798 S .W .2d 459, 461 (1990). When
viewed in this light, McCullough's prima facie case of retaliation plus her proof of pretext
were sufficient to survive Appellants' motion for a directed verdict .
Prima Facie Case
The Court of Appeals held that McCullough met her burden of proving a prima
facie case of retaliation by showing that (1) she engaged in a protected activity by filing
an EEO complaint, (2) she was subjected to adverse treatment when she was denied
promotion, and (3) she was denied promotion because she filed an EEO complaint .
The first two elements are relatively easy to establish. Filing an EEO complaint is a
protected activity. Clark County School District v. Breeden , 532 U.S . 268, 273, 121 S .
Ct. 1508, 1511, 149 L . Ed . 2d 509, 515 (2001). Next, failure to be promoted can be
adverse treatment . Hale v. Cuyahoga County Welfare Department, 891 F.2d 604, 606
(6th Cir. 1989) . In order to establish adverse treatment based on failure to promote in a
retaliation case, the plaintiff must demonstrate that (1) she applied for promotion after
engaging in a protected activity and was qualified for the promotion, (2) she was
considered for and denied the promotion, and (3) other employees of similar or lesser
qualifications received promotions at the time the plaintiffs request for promotion was
denied . Cf. Brown v. Tennessee , 693 F.2d 600, 603 (6th Cir. 1982) (setting forth the
elements of failure to promote in the context of a prima facie case of racial
discrimination) . But the issue of whether McCullough established a causal connection
between the two is not so easily established .
A causal connection can be established through either direct or circumstantial
evidence. Nguyen v. City of Cleveland , 229 F.3d 559, 566 (6th Cir. 2000) . "Direct
evidence is evidence, which if believed by the trier of fact, will prove the particular fact
in question without reliance on inference or presumption ." Walker v. Glickman , 241
F.3d 884, 888 (7th Cir. 2001). Typically, this type of smoking-gun evidence will consist
of written or oral statements, most likely made by the decision-maker responsible for
the adverse action against the plaintiff. See, etc . , Rubenstein v. Administrators of the
Tulane Education Fund, 218 F.3d 392, 402 (5th Cir. 2000), cert. denied, 532 U .S. 937,
121 S . Ct. 1393, 149 L. Ed. 2d 316 (2001). Like most retaliation cases, there is no
direct evidence of retaliation here and, therefore, proof of a causal connection must be
made through circumstantial evidence .
Circumstantial evidence of a causal connection is "evidence sufficient to raise
the inference that [the] protected activity was the likely reason for the adverse action ."
N u en, 229 F .3d at 565. In most cases, this requires proof that (1) the decision
maker responsible for making the adverse decision was aware of the protected activity
at the time that the adverse decision was made, and (2) there is a close temporal
relationship between the protected activity and the adverse action . See , e .g_, Breeden ,
532 U .S . at 273, 121 S. Ct. at 1508, 149 L . Ed . 2d at 515. But a close temporal
proximity alone may be sufficient to raise the inference . Nguyen, 229 F.3d at 567
(leaving the possibility open). Further, a plaintiff may be able to raise a causalconnection inference by demonstrating that the adverse action was taken shortly after
engaging in a protected activity and that she was treated differently from other
employees . See , e~,Lc .,, Moore v. Kuka Welding Systems, 171 F.3d 1073, 1079 (6th Cir.
1999). (Plaintiff was subjected to more frequent disciplinary writeups for trivial matters
and unwarranted criticism of plaintiffs work after plaintiff filed an EEOC complaint
alleging a racially hostile work environment .) In all these cases, temporal proximity is
an important element of proof. The reason for this is fairly self-evident . "The sooner
adverse action is taken after the protected activity, the stronger the implication that the
protected activity caused the adverse action, particularly if no legitimate reason for the
adverse action is evident." Justin P. O'Brien, Weighing Temporal Proximity in Title VII
Retaliation Claims, 43 B .C. L. Rev. 741, 749 (May, 2002) .
Here, the question of temporal proximity is somewhat confusing because this
case concerns a series of twenty-six adverse actions (non-promotions) occurring over
an eight-and-a-half year period . Further complicating the situation is the fact that nine
of these non-promotions occurred outside the applicable statute of limitations . The trial
court admitted these nine non-promotions to show a pattern and practice of retaliation .
The first time McCullough was passed over for promotion within the statute of
limitations was March 25, 1991 . This was more than four years after she filed the EEO
complaint . Under Breeden , this failure to promote, isolated by itself, was too far
removed in time to support an inference of causality based on temporal proximity.
Breeden , 532 U .S . at 274, 121 S . Ct. a t 1511, 149 L . Ed . 2d at 515 . But Breeden and
the other cases addressing the importance of temporal proximity upon which it relies,
concern one or at most two adverse employment actions. In this case, we have
evidence of a repeated series of adverse employment actions occurring both before
and after the first actionable adverse action. This distinction is of critical importance .
McCullough was passed over for promotion three days after she filed the EEO
complaint . She was again denied promotion later the same year . After returning from a
maternity leave of absence, she was again passed over for promotion about a year
later . Six months later, she was again passed over for promotion. In fact, the evidence
established that applying for and being denied promotion were roughly bi-yearly events
for McCullough until she finally determined that the effort was futile and declined to be
considered for further promotions . Viewed in the light most favorable to McCullough,
this evidence established a pattern and practice of adverse treatment, which began
shortly after she filed the EEO complaint . Further, the particular circumstances of this
case established an inference that McCullough was treated differently than other
employees during the promotion process.
Northpoint is part of the Department of Corrections, a state agency, and as such,
it is not free to make arbitrary promotion decisions for merit positions. Rather, it is
subject to various regulations as to the promotion of merit employees . One of these is
101 KAR 1 :400(1), which states that "[a]gencies shall consider an applicant's
qualifications, record of performance, conduct, seniority and performance evaluations in
the selection of an employee for a promotion ." Thus, Northpoint was required to
consider and give weight to these factors when making promotion decisions and there
was testimony that this was so . Much of McCullough's case consisted of evidence of
her qualifications for promotion under these regulatory factors . This evidence consisted
of a personnel letter that she met the minimum qualifications for sergeant ; a number of
special commendations and awards that she had received in connection with her
employment, including an award for assisting in quelling a prison riot and a merit salary
increase for outstanding job performance ; her bi-yearly job performance evaluations, for
which she generally received the highest rating of exceeds expectations ; a clean
criminal record ; and an absence of reprimands, demotions and suspensions . On the
other hand, the only evidence Appellants offered to show that McCullough was not
qualified for promotion was that she was nervous during her interviews and not always
direct.
Using the regulatory factors as a benchmark, McCullough also introduced
evidence that she was as qualified or more qualified than each person promoted over
her. Most of this evidence consisted of documentary evidence establishing her
experience and seniority relative to each person promoted over her. In all cases, she
presented proof that she had at least as much seniority as the person promoted over
her and in many cases much more . One instance showed a difference of ten-and-a-
half years . Additionally, she introduced evidence that one of the candidates promoted
over her had a prior felony conviction and that another had been reprimanded. Finally,
she testified to her personal beliefs as to why she believed that she was the better
candidate.
Appellants' evidence of why McCullough was repeatedly denied promotion
consisted of testimony by some of the panelists who sat on the various three-person
interview panels that interviewed both McCullough and the person eventually promoted
over her. In every instance, each panelist's testimony concerning the person promoted
over McCullough, consisted solely of the panelist's subjective beliefs as to why the
person promoted was better qualified than McCullough . These reasons included better
leadership and inmate-management skills, military experience, the ability to take charge
and the respect of fellow employees . But, Appellants offered no evidence that cast
doubt on McCullough's qualifications for promotion other than the testimony that she did
not interview well .
While not overwhelming, the above evidence was circumstantial evidence that
the regulatory factors were weighed differently or not at all in McCullough's case . She
was recommended for promotion only once out of twenty-six attempts, while candidates
with equal or lesser qualifications (under the regulatory factors to be considered and
weighed) were recommended and promoted over her. It was evidence of disparate
treatment . Because this disparate treatment began soon after she filed the EEO
complaint, we hold that McCullough established an inference that there was a causal
connection between the protected activity of filing the EEO complaint and the adverse
employment action of failing to be promoted . See Moore , 171 F .3d at 1079 . In other
words, McCullough proved a prima facie case of retaliation. Under Reeves , supra , this
is half of the battle. Proof of pretext is the other.
Pretext
McCullough's proof of pretext was basically the same as her proof of disparate
treatment . That is, she established that she was well qualified for each promotion
according to the regulatory factors that Northpoint was required to consider and give
weight to when making promotion decisions for merit positions . Further, using these
factors as a measuring stick, she established that she was as qualified or more
qualified than each person promoted over her. On the other hand, while Appellants'
reasons for not promoting McCullough in each instance were plausible, they were not
compelling. Further, each time she applied for a promotion, she increasingly had more
seniority and experience relative to the candidates promoted over her. But Appellants'
reasons for not promoting her remained basically the same.
From this evidence, the jury could have and did infer that Appellants' nonretaliatory reasons for not promoting McCullough were pretextual . After considering the
evidence of pretext in conjunction with McCullough's prima facie case, we cannot say
that the jury's verdict was "palpably or flagrantly against the evidence so as to indicate
that it was reached as a result of passion or prejudice ." NCAA v. Hornung , Ky., 754
S .W .2d 855, 860 (1988) (internal quotation marks omitted) . Therefore, we hold that the
trial court did not err in denying Appellants' motion for a directed verdict .
B.
Punitive Damages
KRS 344 .450 provides :
Any person injured by any act in violation of the provisions of
this chapter shall have a civil cause of action in Circuit Court
to enjoin further violations, and to recover the actual
damages sustained, together with the costs of the law suit.
The court's order or judgment shall include a reasonable fee
for the plaintiffs attorney of record and any other remedies
contained in this chapter .
"Actual damages" are compensatory in nature and, as such, do not include
punitive damages . 22 Am . Jur. 2d Damages § 24; Horton v. Union Light, Heat & Power
Co. , Ky., 690 S .W .2d 382, 388 (1985) ("The concept of permitting punitive damages in
addition to compensatory damages is one of longstanding in Kentucky."). (Emphasis
added.) Despite the plain language of the statute, the Court of Appeals held that
punitive damages are nonetheless available under KRS 344.450 . In so holding, it
reasoned that allowing punitive damages under the KCRA was consistent with the Act's
stated purpose to "provide for execution within the state of the policies embodied in the
Federal . . . Civil Rights Act of 1991 . . . ." KRS 344.020(1) . The Court of Appeals
further reasoned that KRS 411 .184 and KRS 411 .186 make punitive damages available
in all actions except breach-of-contract actions . We disagree with these conclusions
and hold that punitive damages are not available under KRS 344 .450.
Purpose
In keeping with the KCRA's stated purpose to effectuate the policies of federal
civil rights laws within the Commonwealth, Kentucky courts have always construed
violations under the KCRA consistent with federal construction of similar violations
under the federal civil rights laws . Meyers v. Chapman Printing Co ., Inc. , Ky., 840
S .W .2d 814, 817 (1992) . But we have taken a different approach to damages because
(1) the statutory remedies under the KCRA are markedly different from those available
under the federal discrimination laws, and (2) the KCRA includes a stated purpose not
found in the federal civil rights laws to "protect . . . personal dignity and freedom from
humiliation ." Id ., quoting KRS 344.020(1)(b). As a result of these differences,
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damages available for employment-discrimination claims' under the KCRA were
distinctly much broader than those available under the federal laws prior to the
enactment of the 1991 Federal Civil Rights Act . Id . at 816 .
Prior to the enactment of the 1991 Federal Civil Rights Act "only equitable relief,
primarily backpay, was available to prevailing Title VII [of the federal Civil Rights Act of
1964] plaintiffs ; the statute provided no authority for an award of punitive or
compensatory damages ." Kolstad v . American Dental Association , 527 U .S. 526, 53334, 119 S. Ct . 2118, 2123-24, 144 L. Ed . 2d . 494, 504 (1999). On the other hand, the
KCRA provided for the right to "recover actual damages sustained," which have been
defined as "all those damages directly and naturally resulting, in the ordinary course of
events, from the injury in question ." Mitchell v. Seaboard System R.R. , 883 F.2d 451,
453 (6th Cir. 1989), quoting Nelson v. Tobacco States Chemical Co ., 85-CI-608, at 3
(Fayette Cir. Ct. Aug . 1986) . Thus, under the KCRA a plaintiff was (and still is) entitled
to recover compensatory damages as well as other incidental damages such as
"additional mileage and meal expenses" incurred as a direct result of a defendant's
discriminatory actions . Id . These damages clearly were not available under the pre1991 federal employment-discrimination laws. Id . a t 452 .
"In the Civil Rights Act of 1991, Congress expanded the remedies available to
[victims of employment discrimination] by permitting, for the first time, the recovery of
compensatory and punitive damages ." Pollard v. E .I . du Pont de Nemours & Co. , 532
U .S. 843, 848, 121 S . Ct. 1946,1949, 150 L. Ed . 2d. 62, 67 (2001) . This legislation also
marked, for the first time, the availability of arguably broader remedies under federal law
Mevers limited its discussion to the differences between remedies available under the KCRA and
those available under Title VII of the 1964 Civil Rights Act, which addresses employment discrimination on
the basis of "race, color, religion, sex, or national origin ." Mevers , 840 S.W .2d at 817 .
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for victims of employment discrimination than available under Kentucky law.2 In light of
this change, the Court of Appeals abandoned our approach in Meyers of construing the
remedies available under KRS 344 .450 consistent with the plain meaning of "actual
damages sustained" and adopted a policy-orientated approach that weds the remedies
available under the KCRA to those available under the federal employmentdiscrimination laws . We reject this approach and reaffirm our approach to the
construction of remedies under the KCRA as stated in Meyers.
Punitive Damages Statutes
In enacting KRS 411 .184 and KRS 411 .186, the General Assembly intended to
preempt the common law on punitive damages and to occupy the field . It said as much
in KRS 411 .184(5): "This statute is applicable to all cases in which punitive damages
are sought and supersedes any and all existing statutory or judicial law insofar as such
law is inconsistent with the provisions of this statute ." The Court of Appeals construed
this and similar language found in KRS 411 .186 as authorizing punitive damages in all
cases in which the statutory elements of fraud, oppression or malice were present . But
the more likely interpretation of this language is that the statutes apply only to those
cases in which punitive damages are already authorized by common law or by statute.
This construction flows from the nature of the two statutes themselves, which
established procedures and guidelines for awarding punitive damages in civil actions .
2We use the term "arguably" because of the caps the 1991 Federal Civil Rights Act places on both
compensatory and punitive damages . These caps range from $50,000 against an employer who employs
between 14 and 100 employees to $300,000 against an employer who employs more than 500
employees . See 42 U .S.C. § 1981 a(3) . The KCRA does not have any cap on the amount of "actual
damages" that can be awarded . Thus, in many cases an employer's potential liability is greater under the
KCRA without punitive damages than it is under the Federal Civil Rights Act with punitive damages .
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KRS 411 .184(1)(f) defines "punitive damages ." KRS 411 .184(2) sets forth the
type of conduct -- fraud, oppression or malice -- that may be subject to punitive
damages and the standard of proof for proving punitive damages . KRS 411 .184(1)(a)
(c) defines fraud, oppression and malice . KRS 411 .186(1) states that the issue of
punitive damages shall be determined "concurrently with all other issues presented,"
i .e . , punitive damages are not to be bifurcated from the issues of liability and
compensatory damages . Finally, KRS 411 .186(2) sets out the factors that the trier of
fact should consider if it determines that punitive damages may be assessed in a case .
The provisions of these statutes provide clear guidelines for the awarding and
assessment of punitive damages . There is nothing to indicate that the General
Assembly intended to expand the availability of punitive damages in enacting these
statutes . In fact, the General Assembly's statutory treatment of punitive damages since
the enactment of KRS 411 .184 and KRS 411 .186 indicates a contrary intent.
Since enacting these two statutes, the General Assembly has enacted a number
of statutes that expressly provide for punitive damages as a remedy for violation of the
statute . In fact, two of these, which were enacted in 1992, fall within the KCRA : KRS
344.660 and KRS 344.665, both of which provide for both actual and punitive damages
for discriminatory housing practices. The express inclusion of punitive damages in
these statutes is redundant and unnecessary if KRS 411 .184 and KRS 411 .186 created
the right to punitive damages in all cases where the statutory elements for punitive
damages are present . Such a result violates the "universal rule . . . that in construing
statutes it must be presumed that the Legislature intended something by what it
attempted to do ." Reyes v. Hardin County, Ky., 55 S .W .3d 337, 342 (2001) (emphasis
in original) . Therefore, we hold that KRS 411 .184 and KRS 411 .186 do not make
punitive damages available under KRS 344.450.
C.
Interest
The trial court ordered that the judgments against Appellants should bear postjudgment interest. The Court of Appeals concluded that this award was in error
because the KCRA does not specifically provide for interest and, thus, the order cannot
be enforced against the Commonwealth, its agencies or officers . On cross-appeal,
McCollough argues that the Court of Appeals got this issue wrong . We disagree .
State agencies are not liable for interest "unless there is statutory authority or a
contractual provision authorizing the payment of interest." Powell v. Board of Education
of Harrodsburg , Ky. App., 829 S.W.2d 940, 941 (1992) . Moreover, because of
sovereign immunity principles, "a statute waiving immunity must be strictly construed
and cannot be read to encompass the allowance of interest unless so specified ." Id .
While the KCRA specifically provides that a plaintiff may recover costs, it makes no
provision for interest. Therefore, we hold that interest may not be awarded against the
Commonwealth or its agencies in connection with a judgment obtained under the
KCRA. Likewise, interest may not be awarded against Warden Sowders because
judgment was rendered against him in his official capacity . See Yanero v. Davis , Ky.,
65 S .W .3d 510, 522 (2001).
D.
Other Issues
The Court of Appeals held that McCollough could maintain a claim against Warden
Sowders for punitive damages and remanded the case for a trial on that claim .
Appellants' appeal that holding . But our holding that punitive damages are not available
under the KCRA makes this issue moot. Our holding also renders moot McCollough's
argument that she is entitled to a missing evidence instruction at retrial on the issue of
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punitive damages against Sowders. Finally, we briefly address an issue decided by the
Court of Appeals, but not raised on appeal to this Court by either party.
The Court of Appeals held that the trial court erred in awarding attorneys' fees
without proper findings to justify the award given . Because this holding is not raised on
appeal or cross-appeal, we will not discuss it on the merits . We mention this only to
clarify why the case is being remanded for reconsideration of attorneys' fees.
III.
Conclusion
We affirm the Court of Appeals' holding that the trial court correctly denied
Appellants' motion for a directed verdict and affirm its holding that post-judgment
interest cannot be awarded against the Commonwealth under the KCRA . We reverse
the Court of Appeals' holding that punitive damages are available under the KCRA. We
remand this case to the trial court with instructions to vacate that part of its order
allowing post-judgment interest and with instructions to reconsider its award of
attorneys' fees in light of the standard set forth in Meyers v. Chapman Printing Co ., Inc. ,
Ky., 840 S .W .2d 814, 826 (1992).
Lambert, C .J ., and Wintersheimer, J ., concur. Cooper, J ., concurs by separate
opinion, with Graves, J., joining that concurring opinion . Keller, J., concurs by separate
opinion . Stumbo, J ., dissents by separate opinion .
COUNSEL FOR APPELLANTS/CROSS-APPELANTS :
Stephen P . Durham
Department of Corrections
Office of General Counsel
2439 Lawrenceburg Road
P. O . Box 2400
Frankfort, KY 40602-2400
Mark A. Sipek
Personnel Board
28 Fountain Place
Frankfort, KY 40601
COUNSEL FOR APPELLEE/CROSS-APPELLANT :
William R. Erwin
Helton, Erwin and Sanders
P . O . Box 137
Danville, KY 40423-0137
COUNSEL FORAMICUS CURIAE,
GOVERNOR'S EXECUTIVE CABINET:
Deborah T . Eversole
General Counsel
Public Service Commission
P . O. Box 615
211 Sower Boulevard
Frankfort, KY 40602
Karen Quinn
Deputy General Counsel
Justice Cabinet
403 Wapping Street
Frankfort, KY 40601
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
Six}~rrmr C~vixrf of ~rnfurhV
2000-SC-0727-DG
AND
2001-SC-0146-DG
KENTUCKY DEPARTMENT OF
CORRECTIONS AND DEWEY SOWDERS
V.
APPELLANTS/CROSS-APPELLEES
ON REVIEW AND CROSS-REVIEW FROM COURT OF APPEALS
1998-CA-1403-MR AND 1998-CA-1422-MR
BOYLE CIRCUIT COURT NO . 1995-CI-0341
PATRICIA McCULLOUGH
APPELLEE/CROSS-APPELLANT
CONCURRING OPINION BY JUSTICE COOPER
Despite my continuing belief that Department of Corrections v. Furr, Ky., 23
S .W.3d 615 (2000), was wrongly decided, four Justices (including one who joined my
dissent in Furr) have reaffirmed it today, albeit sub silentio. Accordingly, and mindful of
stare decisis , I join the opinion of the Court, primarily to ensure that the punitive
damages analysis receives a majority vote . I do so, however, with the hope that in due
time a majority of the Court will recognize and correct the error made in Furr. See Scott
v. Illinois , 440 U.S. 367, 374-75, 99 S.Ct. 1158, 1162-63, 59 L .Ed .2d 383 (1979)
(Powell, J., concurring) .
Graves, J., joins this concurring opinion.
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
,$uyrrutE (gourf of Arttfurkv
2000-SC-0727-DG
AND
2001-SC-0146-DG
KENTUCKY DEPARTMENT OF
CORRECTIONS AND DEWEY SOWDERS
V.
APPELLANTS/CROSS-APPELANTS
ON REVIEW AND CROSS-REVIEW FROM THE COURT OF APPEALS
1998-CA-1403-MR AND 1998-CA-1422-MR
BOYLE CIRCUIT COURT NO. 1995-CI-0341
PATRICIA McCULLOUGH
APPELLEE/CROSS-APPELLANT
CONCURRING OPINION BY JUSTICE KELLER
I concur in the majority opinion because I agree with its analysis of the issues
presented in this case. I write separately, however, to reiterate that, in my view,
McCullough should not have been permitted to recover any damages from the
Kentucky Department of Corrections ("KDOC") . I joined Justice Cooper's dissenting
opinion in Department of Corrections v. Furr' ("Fury") because I believed then - as I
believe now - that the Commonwealth's agencies cannot be sued for money damages
under the Kentucky Civil Rights Act ("KCRA") because the General Assembly has not
"specifically and expressly" waived their immunity from suit. In Jones v. Crittenden, 2 I
temporarily set aside my views regarding sovereign immunity and the KCRA and
' Ky., 23 S .W .3d 615 (2000) .
2 Ky., 96 S .W .3d 13 (2003) .
expressed my opinion on the merits of that case in light of the existing Furr precedent
I now realize, however, that, when the issue we addressed in Furr is again before this
Court, I cannot fulfill my oath of office if I disregard my conclusion that a damage
recovery is barred by sovereign immunity . I was mistaken to do so in Jones v.
Crittenden . In this case, the KDOC argued before the Court of Appeals (and prior to
Furr's rendition) that McCullough could not recover damages against it under the
KCRA . But, in its appeal to this Court, the KDOC has apparently abandoned this issue
- it raises no challenge to the holding in Furr, and no longer argues that it is immune
from a damage award. Thus, although, I would vote, in accordance with my vote in
Furr , to vacate McCullough's compensatory damage award against the KDOC, I cannot
do so . As to the issues that are properly before the Court, I agree with the analysis in
the majority opinion, and thus I concur in the majority.
3 Id . at 24 (Keller, J ., dissenting) .
RENDERED : AUGUST 21, 2003
TO BE PUBLISHED
.9ix~x~tc~e (9ourf of
~~t~tz.~~rr
2000-SC-0727-DG
AND
2001-SC-0146-DG
KENTUCKY DEPARTMENT OF CORRECTIONS
AND DEWEY SOWDERS
APPELLANTS/CROSS-APPELANTS
V
ON REVIEW AND CROSS-REVIEW FROM COURT OF APPEALS
1998-CA-1403-MR AND 1998-CA-1422-MR
BOYLE CIRCUIT COURT NO. 1995-CI-0341
PATRICIA McCULLOUGH
APPELLEE/CROSS-APPELLANT
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent from Section B of the majority opinion . KRS
411 .184(5), the punitive damages statute, states, "[t]his statue is applicable to all cases
in which punitive damages are sought and supersedes any and all existing statutory or
judicial law insofar as such law is inconsistent with the provisions of this statute."
Appellee met the standard of KRS 411 .184(5) because she sought punitive damages .
By applying the plain, commonly-accepted meaning of "supersede" which according to
Webster's New International Dictionary 2295 (3d ed . 1993) is, "to be superior to," KRS
411 .184(5) is superior to any inconsistent statute .
Next, we need to consider whether Appellee met the oppression requirement
necessary to access punitive damages as established in Hill v. Marshall , 962 F.2d 1209
(6th Cir. 1992). The court in Hill held that a person has been oppressed when one is
intentionally retaliated against for exercising his or her civil rights . Appellee successfully
demonstrated to the jury that she was repeatedly denied a promotion because she filed
an EEO complaint and that the basis for denial was retaliatory behavior that resulted in
oppression . The jury and the Court of Appeals found that Appellee was entitled to
punitive damages . I agree .
Further, I concur with the Court of Appeals' interpretation that the phrase "any
other remedies," provided in KRS 344 .450, includes punitive damages.
Appellants have argued that when the General Assembly wants to provide
punitive damages, it does. I agree . As provided in KRS 446.015, rules of construction
direct the application of the plain, commonly-accepted meaning to the language . The
statute designated by the legislature to address punitive damages is KRS 411 .184(5) .
Additionally, by enacting a statute that clearly defines itself as being superior to any
conflicting statute, the legislature has eliminated any question about which statute to
apply .
I agree with the analysis and holding of the Court of Appeals in that, "if
McCullough can maintain an action against Sowders under KRS Chapter 344, she can
seek recovery of the whole panoply of damages to which she is entitled by law including
punitive damages ."
I would affirm the decision of the Court of Appeals as to both the Department of
Corrections and Warden Sowders .
"Suprrme Courf of ~irufurh~
2000-SC-0727-DG
AND
2001-SC-0146-DG
KENTUCKY DEPARTMENT OF CORRECTIONS
AND DEWEY SOWDERS
APPELLANTS/CROSS-APPELANTS
V.
ON REVIEW AND CROSS-REVIEW FROM COURT OF APPEALS
1998-CA-1403-MR AND 1998-CA-1422-MR
BOYLE CIRCUIT COURT NO . 1995-CI-0341
PATRICIA McCULLOUGH
APPELLEE/CROSS-APPELLANT
ORDER DENYING PETITION FOR REHEARING
AND GRANTING MOTION FOR MODIFICATION
The petition for rehearing is denied . The petition for modification is
granted . The Opinion of the Court rendered August 21, 2003, is modified on its face by
substitution of the attached pages 1 and 16 in lieu of the original pages 1 and 16 .
All concur.
ENTERED: January 22, 2004 .
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