The Kentucky Court of Appeals decision that is discussed below was reversed and the jury verdict reinstated in a decision by the Kentucky Supreme Court on August 17, 2015, in Banker v. University of Louisville Athletic Association. Quite simply the Kentucky Supreme Court ruled unanimously that there was ample evidence for a jury to reasonably find that Banker's discrimination complaint was a substantial cause for her termination. It rejected the Court of Appeals mistaken reliance on Breeden case discussed below.
The Kentucky Supreme Court's decision also puts to rest the argument that Kentucky law had adopted a requirement for expert medical or scientific testimony to support a claim for emotional distress damages as discussed in this post: Does Kentucky Require Expert Medical or Scientific Testimony to Support A Claim for Emotional Distress Damages in an Employment Discrimination or Retaliation Case?
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The Kentucky Court of Appeals vacated a jury verdict awarding $300,000 plus in a retaliation case against the University of Louisville Athletic Association in University of Louisville Athletic Association, Inc. v. Banker, No. 2011-CA-1436 (February 1, 2012), a decision that is contrary to Kentucky law, which the majority disregards without consideration or discussion.
Causation under Kentucky law has long been recognized as a mixed question of law and fact. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003); Deutsch v. Shein, 597 S.W.2d 141, 145 (Ky. 1980). And the Kentucky Supreme Court has held that a mixed question of law and fact is one for a jury's determination, a requirement imposed by jural right imposed by Section 7 of the Kentucky Constitution. Meyers v. Chapman Printing, 840 S.W.2d 814, 822 (Ky. 1992).
Mary Banker was an assistant track coach at U of L. Her tenure, it appears, was not smooth and evidence at trial indicated that as of April 16, 2008, U of L began to contemplate and consider nonrenewal of Banker's contract. Six days later she made a report of sex discrimination to U of L's human resources personnel. About three weeks later, on May 15, 2008, Banker was formally notified that her contract would not be renewed. She later filed suit alleging a number of claims among them that her termination was in retaliation for the sex discrimination report she made some three weeks before the final decision to fire her was made. A Jefferson Circuit Court jury found for her on the retaliation claim and awarded her $300,000 in damages for emotional distress and $71,875 in lost pay.
The principal issue on appeal was causation: was there a causative link between Banker's protected activity -- her discrimination report -- and the adverse employment action, the nonrenewal of her contract. The opinion does not indicate what the jury interrogatory was exactly but a proper jury interrogatory would have been as follows: "Do you find from the evidence that a substantial and motivating factor but for which Mary Banker's employment would not have been terminated was her report of sex discrimination?" Whether exactly this or something close to it, the jury answered the causation question in Banker's favor.
U of L's argument was that it had contemplated but concededly had not yet decided finally to terminate Banker's employment prior to her protected report, and, therefore, her protected report could not be causatively linked to her termination. This argument would appear to be a weak one, given that the jury's verdict indicated that it had found that Banker's discrimination complaint had been the substantial and motivating factor that that tipped U of L from contemplation to retaliation but for which Banker would not have been terminated. But the Court of Appeals bought it, relying on dicta in a United States Supreme Court decision, Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
But what of Kentucky law? What of the principle of Kentucky law that causation is for the jury to decide? About this the Court of Appeals says nothing; there is no explanation as to why dicta in a federal court decision interpreting federal law so thoroughly trumps Kentucky law. In reality, the court careens down the path that the Kentucky Supreme Court rejected over twenty years ago in Meyers v. Chapman Printing:
We state: "The role of the jury in interpreting the evidence and finding the ultimate facts is an American tradition so fundamental as to merit constitutional recognition. U.S. Const.Amend. VII; Ky. Const. Sec. 7. The conscience of the community speaks through the verdict of the jury, not the judge's view of the evidence. . . . [If] deciding when to take a case from the jury is a matter of degree, a line drawn in sand, . . . this is all the more reason why the judiciary should be careful not to overstep the line.
The Court of Appeals' decision represents a marked departure from Kentucky law and a derogation of jury trial rights that the Kentucky Supreme Court has held paramount in Kentucky courts. Hopefully, the Supreme Court will review this case and yet again push this point forward. Judge James H. Lambert wrote the Court of Appeals' majority opinion and was joined by Judge Joy A. Moore. Judge Michael Caperton dissented, voting to uphold the jury verdict.
Robert L. Abell
www.RobertAbellLaw.com
