In 2005, Deborah Powell, at the time the women's basketball coach at Asbury University in Wilmore, Kentucky, filed a grievance protesting what she regarded as sex discrimination in the terms and conditions of her job. Basically, the grievance procedure went nowhere and Powell continued her complaints regarding the disparity of resources between the men's and women's teams, the differing budget processes, differing scheduling allowances, differing and more onerous work loads that she maintained as compared with her male counterpart and her exclusion from an athletic department review and audit process. She pushed these complaints on into January 2008. She was fired the following month in February 2008.
After she was fired, Powell filed a retaliation claim under the Kentucky Civil Rights Act, claiming that she was fired in retaliation for her grievance and complaints about gender discrimination directed at her and at the women's sports more generally. A jury returned a verdict awarding her some $388,000 in damages. The Lexington Herald-Leader also reported: Former Asbury Women's Coach Awarded Nearly $400,000 in Discrimination Lawsuit.
On appeal to the Kentucky Supreme Court, Asbury argued that the time lapsed between her grievance in late 2005 and her firing in February 2008 precluded a finding that there was a connection between the two, more specifically, that the alleged retaliation - Powell's firing - was too temporally remote from her protected activity. The Court had none of this, observing that Powell's complaints and reports of discriminatory practices were not limited to her grievance:
Certainly, the 2005 written complaint, standing alone, would be insufficient to support a claim of retaliation for the 2008 discharge given the lack of any temporal proximity between the written complaint and her termination.
But Asbury's argument misconstrues the significance of Powell's repeated oral complaints to her superior and others throughout the intervening years. Cf. Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 469 (6th Cir. 2012)(stating that "complaining about allegedly unlawful conduct to company management is classic opposition activity" to sustain Title VII retaliation claim despite employee having never filed a formal complaint with EEOC); Johnson v. Univ. of Cincinnati, 215 F3d 561, 580 (6th Cir 2000)("The [EEOC] has identified a number of examples of 'opposing' conduct which is protected by Title VII, including complaining to anyone (Management, unions, other employees, or newspapers) about allegedly unlawful practices ...").
And we find unpersuasive Asbury's argument that Powell's oral complaints to AD Kempf were merely "petty workplace gripes" that were unrelated to the terms of her employment and thus not protected activities under the KCRA. Powell's complaining encompassed what she perceived to be sex-based discrepancies in the terms and conditions of her employment by the school's athletic department as a head coach and intramural sports coordinator vis-à-vis her male counterparts. Therefore, her complaints involved a lead sex-based employment discrimination made unlawful by KRS 344.040(a) and, as such, were protected activities under KRS 344.280(1).
The Court's analysis -- the opinion was unanimous and authored by Justice Mary Noble -- here follows the well-reasoned discussions of other courts that have been discussed in other posts: Retaliation & Temporal Proximity - "We reject the idea that the passage of a particular amount of time between protected activity and retaliation can bar the claim as a matter of law." and Temporal Proximity When the Employer Retaliates at the Earliest Opportunity, Although 15 Months Later.
The Powell decision is significant under Kentucky law as I've discussed in earlier posts: Retaliation Claims Under the Kentucky Civil Rights Act, But For Causation and Retaliation Claims Under the Kentucky Civil Rights Act and Retaliation Need Only Be A Factor Not the Only Factor to Violate the Kentucky Civil Rights Act.