Kentucky Employment Law Blog: March 2016

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March 2016

March 29, 2016

Retaliation, the Temporal Proximity Doctrine and an Employee's Continuing Complaints about Discrimination

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:

Read more here: http://www.kentucky.com/news/local/article44153310.html#storylink=cpyOn appeal to the Kentucky Supreme Court, Asbury argued that the time gap between Powell's grievance in late 2005 and her firing nearly 2 1/2 years later in February 2008 precluded a causative link between the two. The Court agreed but also observed that it was not that simple:

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.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 01:21 PM in retaliation | Permalink | Comments (0)

Tags: causation, Kentucky Supreme Court, Retaliation, temporal proximity

March 27, 2016

Retaliation Need Only Be A Factor Not the Only Factor to Violate the Kentucky Civil Rights Act

[W]e must take this opportunity to make clear that retaliatory motive need not be the sole, or even primary, cause of the challenged employment action; rather, it need only be a (not 'the') but-for cause of the decision.

This causation standard for claims under the Kentucky Civil Rights Act the Kentucky Supreme Court clarified recently in Asbury University v. Powell.

The Court further advised:

The fact that other, non-retaliatory reasons may have contributed to an adverse employment action does not necessarily preclude recovery, so long as there is evidence sufficient to permit the factfinder to conclude that unlawful retaliatory motive was so integral to the adverse action that more likely than not the action would not have been taken had the employee not engaged in protected activity.

The upshot of all this: retaliation or discrimination need not be the only factor, reason or basis for an adverse employment action to sustain a claim under the KCRA but it must be a significant factor.

Powell is an important decision for Kentucky discrimination and retaliation law and been the subject of previous posts: Retaliation Claims Under the Kentucky Civil Rights Act and But For Causation and Retaliation Claims Under the Kentucky Civil Rights Act.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 10:04 AM in discrimination, retaliation | Permalink | Comments (0)

Tags: discrimination, Kentucky Civil Rights Act, Kentucky Supreme Court, retaliation

March 25, 2016

But For Causation and Retaliation Claims Under the Kentucky Civil Rights Act

Since the mid-1990s jury instructions in retaliation and discrimination cases under the Kentucky Civil Rights Act have stated something to the effect the discrimination or retaliation must be found to have been a substantial and motivating factor but for which the injury would not have occurred. These instructions were derived from two cases, Meyers v. Chapman Printing, 840 S.W.2d 814 (Ky. 1992) and First Property Management v. Zarebidacki, 867 S.W.2d 185 (Ky. 1994). An example is the jury instructions in an age discrimination case I tried in 2000, Wells v. Columbia Gas, a case tried when it was still possible to recover punitive damages for violations of the KCRA.

The Kentucky Supreme Court has trimmed the jury instructions for both retaliation and discrimination claims under the KCRA in its recent decision in Asbury University v. Deborah Powell. The trimming is the removal of the "substantial and motivating factor" language, which the Court explained as a redundancy:

If the ultimate question is answered by a "but for" analysis, which the plaintiff must prove to prevail, that is, that the adverse employment action would not have occurred but for her protected conduct, is it really necessary that a plaintiff also have to prove that her conduct was a "substantial and motivating factor"?

The simple answer is that if the adverse action would not have occurred but for her protected conduct, she has more than shown that such was a substantial and motivating factor for the adverse action. To that extent, this language is surplusage. In finding or not finding "but for" causation, the jury has necessarily found or not found that the plaintiff's conduct was a substantial factor in the adverse employment action.

Consequently, while we reiterate our prior decisions in saying that the appropriate causation standard in retaliation cases is "but for" causation, we hold that the "substantial and motivating factor" is surplusage and should not be included in the jury instruction.

So a model instruction and interrogatory for a retaliation claim under the KCRA would be as follows:

Instruction: Under the law of Kentucky, it is unlawful for an employer to fire an in retaliation for the employee's opposition to a discriminatory employment practice. It is not necessary for the retaliatory motive for to be the sole or only reason for the firing; it is sufficient if retaliation is a factor for the termination.

Interrogatory: Do you believe from the evidence that plaintiff would not have been retaliated against and fired but for her protected activity?

Powell was the subject of a prior post: Retaliation Claims Under the Kentucky Civil Rights Act.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 08:44 AM in retaliation | Permalink | Comments (0)

Tags: KCRA, Kentucky Civil Rights Act, Kentucky Supreme Court, retaliation

March 24, 2016

Retaliation Claims Under the Kentucky Civil Rights Act

The Kentucky Civil Rights Act (KCRA) prohibits retaliation against an employee or individual that reports or opposes a discriminatory employment practice. But does this protection apply if the discriminatory employment practice is not itself unlawful? The Kentucky Supreme Court ruled recently in Asbury University v. Deborah Powell that the protection applied, provided the employee has a reasonable, good-faith belief that a discriminatory employment practice has occurred.

The plaintiff, Deborah Powell, was the women's basketball coach at Asbury University. She complained and reported what she viewed as sexually discriminatory practices directed both at her individually and at women's sports at the university more generally. Eventually, the university made up a reason to fire Powell; she responded by filing suit advancing claims of sex discrimination while she was employed and retaliation by her firing for reporting and complaining of the sex discrimination. A jury found for the university on Powell's sex discrimination claim; however, the jury found for Powell on her retaliation claim and awarded her more than $388,000 in lost wages and damages.

To the Kentucky Supreme Court the university argued that Powell's retaliation claim had to fail as a matter of law, since the jury had found no unlawful sex discrimination. The Court, in an opinion authored by Justice Mary Noble, unanimously rejected the university's argument and explained as follows:

... an underlying violation of the KCRA need not necessarily be proved to sustain a retaliation claim under KRS 344.280(1).

Instead, as under the federal rule, all that is required to obtain retaliation protection under KRS 344.280(1) is that the employee have "a reasonable and good faith belief" that the adverse employment practices she opposed were KCRA violations.

And whether that belief is reasonable or in good faith is a question for the jury. Consequently, a jury could believe that the alleged discriminatory conduct of the employer was not in fact discriminatory, but that it could have reasonably appeared so to the employee. That is the upshot of the jury's finding here. A retaliation claim is premised on the notion that the employer takes adverse action against an employee because the employee exercised the right to speak out against discrimination.

Powell is a significant decision and will be the subject of further posts.

Robert L. Abell
www.RobertAbellLaw.com