Kentucky Employment Law Blog

Does Kentucky Require Expert Medical or Scientific Testimony to Support A Claim for Emotional Distress Damages in an Employment Discrimination or Retaliation Case?

Following the Kentucky Supreme Court's 2012 decision in Osborne v. Keeney recognizing a cause of action for negligent infliction of emotional distress and establishing as an element of that tort that the emotional distress be serious as proved by expert medical or scientific proof, some courts ran away from the narrow and specific holding and concluded that the case established a generally applicable rule of Kentucky law requiring expert medical or scientific proof to sustain any and all claims for emotional distress damages no matter their context. This tendency was particularly pronounced in Kentucky's federal district courts. 

The Kentucky Supreme Court's recent decision in Banker v. University of Louisville Athletic Association should put to rest the defense argument that expert medical or scientific proof is necessary to sustain a plaintiff's claim for emotional distress damages in a discrimination or retaliation case. The Court reinstated a jury's award of $300,000 in damages for Banker's emotional distress caused by her wrongful termination and described her proof as follows:

In support of her claim of emotional distress damages, Banker testified that she suffered significant stress with accompanying loss of appetite, weight loss, depression, and sleep disturbance. Banker testified that she had not sought any treatment for her symptoms because she lost her health insurance and could not afford her COBRA payments. In addition to her own testimony, Banker offered testimony from her mother that Banker seemed stressed and lost weight during her time at the University and that Banker was devastated when she lost her job.

The decision in Osborne v Keeney, although it obviously did not establish a generally applicable rule that emotional distress damages must be supported by expert medical or scientific proof, was an important decision for Kentucky law, as we've discussed in our other blog ... and Justice for All: Kentucky Legal Malpractice: The Case-Within-A-Case Approach; Kentucky Legal Malpractice: Lost Punitive Damages Not Recoverable Kentucky Supreme Court Rules; and Kentucky Abandons The Physical Impact Requirement for Recovery of Emotional Distress Damages. 

Banker's lawyer was Bryan Cassis from Louisville, who deserves kudos for his fine work on his client's behalf. 

We've also discussed the Banker decision on a post on our website: Retaliation & Discrimination - Proving Emotional Distress.

Post Script:

In a later case, Indiana Insurance Company v. Demetre, the Kentucky Supreme Court made explicit what the Banker case suggests: "Osborne's requirement of expert medical or scientific proof is limited to claims of intentional or negligent infliction of emotional distress."

Robert L. Abell
www.RobertAbellLaw.com

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Retaliation: How Specific Must Be the Plaintiff's Complaint?

To come within the protection of Title VII and the Kentucky Civil Rights Act, a plaintiff must establish that he or she challenged, opposed, protested and/or reported an employment practice that he or she reasonably believed was unlawful. The Sixth Circuit advised recently in Yazdian v. ConMed Endoscopic that while a vague complaint does not rise to the level of protected opposition neither must "the plaintiff's complaint be lodged with absolute formality, clarity, or precision."

Basically, the complaint or report must provide some reasonable grounds for the employer to conclude that the employee is protesting or reporting what the employee at least reasonably believes is some form of unlawful employment discrimination, not just protesting what the employees believe to be a generally unfair or wrong employment decision or practice. By way of example, the Sixth Circuit in Yazdian specifically cited each of the following six statements as constituting protected activity:

"I'm going to respond with counsel."
"I'm going to bring you up on charges before ..."
"Bring a lawsuit against [the supervisor]"
"Hostile work environment"
"I will have an attorney respond."
"I will be responding with charges."

Yazdian was discussed in an earlier post: Retaliation: What Is Protected Activity?

Robert L. Abell
www.RobertAbellLaw.com

 

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Retaliation: What Is Protected Activity?

Title VII prohibits retaliation against an individual or employee that reports, protest or opposes a discriminatory practice (or at least what is reasonably and in good faith believed to be a discriminatory practice) directed at herself or others. But in the real world individually is rarely craft their statements knowingly within legal confines, so one issue can arise  in retaliation cases regarding whether or not discrimination was truly protested or if the statement(s) were simply more of a general nature.

The Sixth Circuit had cause recently to consider in Yazdian v. ConMed Endoscopic Technologies Inc. whether the plaintiff's statements amounted to protected activity. In the course of reversing a summary judgment granted by the district court, the court cited the following as "individually and together qualify[ing] As Title-VII protected activity":

• "I'm going to respond with counsel."
• "I'm going to bring you up on charges before ..."
• "Bring a lawsuit against [the supervisor]"
• "Hostile work environment."
• "I will have an attorney respond."
• "I will be responding with charges."

More generally, the court explained that "an employee who complains that an employer is creating a 'hostile work environment' engages in Title-VII-protected activity when the context objectively reveals that the employee is using the expression to complain about repeated abusive discriminatory comments or treatment."

The Sixth Circuit's opinion was authored by Circuit Judge Karen Nelson Moore, and joined by Chief Judge Guy Cole and Circuit Judge Eric L. Clay.

We have addressed other questions about retaliation on the website:

Is Telling a Supervisor To Stop His Sexual Harassment Protected Activity?

Can my employer fire me because I filed a charge of discrimination with the Equal Employment Opportunity Commission?

Can I be fired if I testify in court in a co-worker's discrimination lawsuit and my testimony supports the case against our employer?

Robert L. Abell
thiswww.RobertAbellLaw.com

 

 

 

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Sexual Harassment and Retaliation Verdicts Against AutoZone Affirmed by Sixth Circuit

The Sixth Circuit has affirmed jury verdicts on behalf of three former employees on their sexual harassment and retaliation claims.  Perry v. AutoZone Stores, Inc. (June 22, 2015). 

Plaintiff Shana Perry was sexually harassed by her supervisor Mark DeHaan.  She reported the harassment, AutoZone began an internal investigation, and, during the investigation, plaintiffs Damon Harper and Daryl Quinney made statements corroborating Perry's allegations. All three were subsequently fired.  

The jury awarded Perry $150,000 in damages for emotional distress and $400,000 in punitive damages against AutoZone; Harper was awarded $60,000 for lost wages and $100,000 in emotional distress damages; Quinney was awarded $100,000 in emotional distress damages and $23,300 for lost wages. See Verdict Form. The district judge, the late John G. Heyburn, reduced the punitive damages award to comply with Title VII's statutory cap of $300,000.  

The Sixth Circuit's opinion was per curiam and issued on behalf of Circuit Judges Martha Daughtrey, Deborah Cook and Eric Clay.  Perhaps the only surprise is that the case was argued on November 18, 2014; some would infer a more extensive analysis would come after such a delay.  

The plaintiffs were represented by Rheanne Falkner and Charles Miller of the Louisville firm of Miller & Falkner; they were lauded by Judge Heyburn for their "considerable skill and determination."

Robert L. Abell
www.RobertAbellLaw.com

 

Retaliation - Is the Denial of Leave Proof of Retaliation?

Really a pretty easy question since denial of leave could be itself an adverse employment action. Nevertheless, it gets missed as the shown by the Fourth Circuit's reversal of a summary judgment recently in Jacobs v North Carolina Administrative Office of Courts: 

We note that, in addition to serving as evidence of hostility, the denial of leave can itself be an adverse employment action compensable under the ADA’s retaliation provision. Wells v. Gates, 336 F. App’x 378, 383–384 (4th Cir. 2009) (per curiam).

Jacobs is an excellent opinion examining numerous issues pertinent to ADA and disability discrimination cases.

Robert L. Abell
www.RobertAbellLaw.com

 

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"We close by noting our disappointment with Hospira's approach to summary judgment practice"

In Malin v Hospira Inc, 762 F3d 552 (7th Cir 2014), the Seventh Circuit reversed a summary judgment granted the defendant-employer, Hospira Inc, on the plaintiff's FMLA and Title VII retaliation claims.  The court's analysis is unremarkable, even as it takes pains to emphasize that it has never erected a temporal proximity bar to a retaliation claim and address an evidence issues, but its conclusion highlights features of summary judgment practice that many will surely and dismayingly find all too familiar:

• Both in the district court and in this appeal, Hospira has misrepresented the record and Malin's legal arguments.
  
  
• Hospira repeatedly cherry-picked isolated phrases from Malin's deposition and claimed that these "admissions" doomed her case.
  
  
• Hospira's presentation of the evidence amounted to nothing more than selectively quoting deposition language it likes and ignoring deposition language it does not like.
  
  
• Hospira seems to have based its litigation strategy on the hope that neither the district court nor this panel would take the time to check the record.

While the court's condemnations are most unusual the practices that it cites are not; cherry-picking of evidence, misrepresenting the record and selectively quoting deposition language the defendant likes and ignoring deposition language it does not like is the norm, not the exception.  

I have previously posted about this case, 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."  I also again thank Rick Seymour for bringing this case to my attention and others over the NELA listserve.

Robert L. Abell
www.RobertAbellLaw.com 

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."

Temporal proximity between protected activity and an adverse employment action suggests or doesn't a causative link between the two.  But how long is too long? An employer argued to the Seventh Circuit in Malin v Hospira, Inc, 762 F3d 552 (7th Cir 2014) that a "three-year time interval is a 'fatal time gap' that forecloses any inference of retaliation." The court rejected this idea and explained as follows:

"The mere passage of time is not legally conclusive proof against retaliation." Robinson v Southeastern Pennsylvania Transp Auth Red Arrow Div, 982 F2d 892, 894 (3d Cir 1993); see also Carlson v CSX Transp, Inc, 758 F3d 819, 828-30 (7th Cir 2014)(rejecting timing-based rule at the pleading stage and collecting cases); Paluck v Gooding Rubber Co, 221 F3d 1003, 1009010 (7th Cir 2000)("of course, the fact that a year passed between employee's protected expression and her termination does not mean that she cannot prove that retaliation caused her discharge"); Gee v Prinicpi, 289 F3d 342, 345-47 (5th Cir 2002)(reversing summary judgment for employer where employee's complaint and allegedly retaliatory failure to promote were separated by two years); Woodson v Scott Paper Co, 109 F3d 913, 916 (3d Cir 1997)(affirming verdict for plaintiff; reasonable jury could find retaliation where protected activity and plaintiff's termination were separated by two years). 

This is really nothing more than a fair, common-sense review of the factual situation that this case presented. The plaintiff, Malin, presented evidence of numerous retaliatory acts occurring during the three-year period at issue that culminated in the ultimate and actionable adverse employment action: her demotion.  

We recently discussed a Sixth Circuit case where that court properly reviewed the facts before it indicating that a 15-month period between the protected activity and the retaliation was not that significant.  Temporal Proximity When the Employer Retaliates at the Earliest Opportunity, Although 15 Months Later. 

The Malin case was brought to my attention by Rick Seymour on the NELA listserve, an invaluable resource enriched by truly gifted lawyers all over the country.

Robert L. Abell
www.RobertAbellLaw.com

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Temporal Proximity When the Employer Retaliates at the Earliest Opportunity, Although 15 Months Later

Is there temporal proximity between the protected activity and the retaliatory act when fifteen months separates the two?  There can be where the evidence shows that the "employer had no opportunity to retaliate sooner" the Sixth Circuit explained in Sharp v Aker Plant Services, No 14-5415 (Jan. 13, 2015). 

Tommy Sharp was let go during a force reduction in January 2009.  Two months later in March, after recording some statements by his supervisor indicating that Sharp's release was age-motivated, Sharp sent the employer a demand letter protesting the age discrimination he claimed to underlay his termination.  Sharp eventually filed an age discrimination suit, got a reversal of a summary judgment in the Sixth Circuit, Sharp v. Aker Plant Services, 726 F3d 789 (6th Cir 2013), before losing a jury trial. Meanwhile, in July 2010, a staffing agency attempted to place Sharp with Aker but Aker rejected Sharp by email the following day. So, some fifteen months separated Sharp's protected activity (the demand letter he sent in March 2009) and the retaliatory action, the rejection in July 2010.  Following his rejection Sharp filed suit claiming that his rejection was retaliation for filing the age discrimination suit following his termination.

As with his first suit, the district court granted summary judgment against Sharp finding, among other things, that he had not established a causative link between his protected activity and the retaliation, since some fifteen months separated the two.  Sharp appealed and, for the second time, the Sixth Circuit reversed in his favor.

The Sixth Circuit rejected the district court's causation analysis.  First, although the district court had ruled that Sharp could not establish causation because of the fifteen month time span, the Sixth Circuit emphatically observed that "our precedent expressly rejects the district court's position that a span of more than six months between protected activity and adverse action categorically precludes finding causation."  Second, Aker retaliated against Sharp at its first and earliest opportunity, a reality that supported a finding of temporal proximity:

Evidence showing that an employer had no opportunity to retaliate sooner supports a finding of temporal proximity.  See Fischer v. UPS, 390 Fed Appx 465, 469 (6th Cir 2010)(finding that the plaintiff could establish causation after two-and-a-half-year interval based on the "practical reality" that he took an extensive period of medical leave during that time); Dixon v Gonzales, 481 F3d 324, 335 (6th Cir 2007)

The Sixth Circuit's unanimous opinion was authored by Circuit Judge Deborah Cook and joined by Circuit Judge Julia Gibbons and visiting District Judge James S. Gwin of the Northern District of Ohio, a panel that would ordinarily be viewed as not favorable toward an employment discrimination plaintiff appealing a summary judgment.

An earlier post discussed this case: More Than Six Months Between Protected Activity and Retaliation Does Not Preclude Causative Link, Sixth Circuit Again Emphasizes.

Robert L. Abell
www.RobertAbellLaw.com

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Retaliation cases require plaintiffs to establish a causative link between some protected activity and the retaliatory adverse employment action.  Temporal proximity is one way to do so, the closer in time of the two the better and persuasive.  Post hoc ergo propter hoc. But how much is to much time? Six months? More than six months?  The Sixth Circuit's recent decision in Sharp v. Akers Plant Services, where it reversed a summary judgment, again emphasized that more than six months is not too much time:

our precedent expressly rejects the district court's position that a span of more than six months between protected activity and adverse action categorically precludes causation.

The Sixth Circuit's unanimous opinion was authored by Circuit Judge Deborah Cook and joined by Circuit Judge Julia Gibbons and visiting District Judge James S. Gwin of the Northern District of Ohio, a panel that would ordinarily be viewed as not favorable toward an employment discrimination plaintiff appealing a summary judgment.

The precedents cited by the Sixth Circuit were several years old: Dixon v. Gonzales, 481 F3d 324, 335 (6th Cir 2007); Harrison v. Metro Govt of Nashville & Davidson County, 80 F3d 1107, 1118-19 (6th Cir 1996)(holding that evidence supported a prima facie case of causation where the alleged retaliation occurred one year and three months after the protected activity), overruled on other grounds as recognized by Jackson v Quanex Corp, 191 F3d 647, 667 n 6 (6th Cir 1999). 

This was the second time that Tommy Sharp has had the Sixth Circuit reverse a summary judgment granted by the district judge in Louisville. See Sharp v Aker Plant Services, 726 F3d 789 (6th Cir 2013). 

Robert L. Abell
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Damages in Kentucky Wrongful Termination Suits

KRS 216B.165 requires a health care worker to report quality of care issues (as well as other issues) and also prohibits retaliation against them by the healthcare facility. A healthcare worker wrongfully terminated in retaliation for reporting quality of care issues can pursue a lawsuit for his or her damages.

The damages a healthcare worker fired in violation of the anti-retaliation prohibition of KRS 216B.165(3) may recover in their wrongful termination lawsuit includes "such damages ... sustained by reason" of the wrongful termination. This includes future lost income, often referred to as "front pay," the Kentucky Supreme Court ruled this week in MacGlashan v. Cumberland Hall Hospital.

District Judge Thomas Russell of the United States District Court in Paducah certified the following question:

Can a plaintiff who alleges that her employment was wrongfully terminated in violation of KRS 216B.165 assert a claim for the recovery of front pay, along with other damages she may have sustained, by reason of her discharge?

Front pay is another term for lost future income which are a garden-variety form of damages recoverable in tort cases under Kentucky law. E.g., Caton v. McGill, Ky., 488 S.W.2d 345 (1972);  Middlesboro Coca-Cola Bottling Works v. Ball, 262 Ky. 101, 89 S.W.2d 875 (1936). front pay, as with lost future income, "represents a reasonable estimate of damages that will occur after the trial." As such, "the practical and functional reality [is] that [front pay] is an award of monetary damages to recompense a loss 'sustained by reason of the [KRS 216B.165] violation."

The Court's unanimous opinion was written by Justice Daniel J. Venters.

Robert L. Abell
www.RobertAbellLaw.com

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