Opinion
NO. 2012-CA-000217-MR
07-05-2013
LUAL A. DENG, FORMERLY JACOB L. AKER APPELLANT v. NORTON HEALTHCARE, INC. APPELLEE
BRIEFS FOR APPELLANT: Everett C. Hoffman Louisville, Kentucky BRIEF FOR APPELLEE: Jeremy Rogers Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 08-CI-002274
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
BEFORE: MAZE, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Lual A. Deng, formerly known as Jacob L. Aker (Aker), appeals from a summary judgment order by the Jefferson Circuit Court dismissing his employment-discrimination and retaliation claims against Norton Healthcare, Inc. (Norton). Aker argues that he presented sufficient evidence to establish prima facie cases of discrimination and retaliation, and also presented sufficient evidence to rebut Norton's stated non-discriminatory reason for terminating his employment. With respect to the discrimination claim, we agree with Aker that he met the elements of his prima facie case; however, we also agree with the trial court that Aker failed to present sufficient evidence to show that Norton's stated reason for firing him was a pretext for unlawful discrimination. As to Aker's two retaliation claims, we conclude that he provided sufficient evidence to move forward on one of those claims. We therefore affirm in part, reverse in part, and remand for further proceedings.
Aker, a Sudanese immigrant, was hired by Norton as a linen clerk in 2002. By September of 2006, he had advanced to the position of Personal Care Assistance (PCA) at Norton's Audubon Hospital location. He was assigned to work with Nurse Gloria Pescador. On August 14, 2007, an altercation occurred between Aker and Pescador. In his deposition, Aker testified that Pescador asked him to check a patient's blood sugar level. Aker states that he informed Pescador that he would perform the task once he had shut down his computer in compliance with hospital regulations. Pescador states that Aker simply refused to comply with her request. In any event, Aker testified that Pescador began cursing and disparaging him, while Pescador states that she simply told him that he needed to comply the next time he was asked to perform a task.
Aker further states that he attempted to discuss the incident with the charge nurse, Jean Paulraj, but Pescador interrupted the conversation, calling Aker "stupid" and insisting that they handle the matter personally. While this exchange was occurring, Paulraj states that Aker said that if Pescador did not change the way she spoke to him, then "something else" would happen. Aker states that he merely told Paulraj that she "needed to do something." However, three witnesses to the event testified that Aker repeatedly said "something else was going to happen."
The matter was referred to Nurse Manager Karen Higdon, who commenced an investigation for Norton's Human Resources Department. Aker was placed on administrative leave during this time. At the conclusion of her investigation, Higdon found that Aker's tone and statements constituted a threat to harm or intimidate Pescador. Higdon determined that this behavior amounted to a Level I offense under Norton's progressive disciplinary policy and was grounds for immediate termination.
Aker appealed the termination under Norton's Grievance Resolution Process. After hearing from Aker and all other parties, the Grievance Resolution Team stated that it could not find conclusive evidence that Aker's statement was intended as a threat or intimidation. Consequently, the Team recommended that the matter be treated as a Level II offense rather than Level I. The Team also recommended that Aker undergo counseling and that Aker be given the opportunity to seek a position in a different unit or location. No one at Norton appealed the Team's recommendation.
Norton states that the Team's recommendation merely allowed Aker to apply for a new position as an internal applicant before his personal leave expired. Aker maintains that the Team recommended he be moved to another unit or location. Aker met with the retention manager several times to discuss potential job openings; however, Aker was not hired to a new position within the available time. On December 19, 2007, Norton advised him that his employment was formally terminated as of November 28, 2007.
Shortly before receiving this notice, Aker consulted with an attorney, Edwin Sherman, to discuss his legal remedies. On December 21, 2007, Sherman sent a letter to Norton's Human Resources Department to ask about the delay in Aker's reinstatement. Norton replied on January 11, 2008, stating that Aker failed to pursue his options in the retention program and suggesting that he apply as an external applicant.
On February 27, 2008, after receiving this letter, Aker filed a pro se complaint against Norton alleging racial and professional discrimination. Sherman again contacted Norton to discuss the possibility of Aker returning to work. In an affidavit, Sherman reports that Tom Powell, Norton's Associate Vice President and Associate General Counsel, told him that Norton would not consider Aker for any position because he had filed the action.
Shortly after this conversation, Sherman discontinued his representation of Aker. Aker eventually obtained new counsel and filed an amended complaint on February 28, 2010, alleging breach of contract, employment discrimination under the Kentucky Civil Rights Act, and retaliation. He also alleged that his co-workers made a series of discriminatory statements to him during the period leading up to the incident which led to his termination.
After proceeding through discovery, Norton moved for summary judgment on all of Aker's claims. In an opinion and order entered on January 5, 2012, the trial court granted Norton's motion and dismissed Aker's complaint. The trial court first found that Aker's breach-of-contract claim failed as a matter of law because he was an at-will employee. Aker does not appeal this finding. The trial court next found that Aker had failed to establish a prima facie case of racial discrimination. Finally, the court determined that Aker had failed to establish a prima facie case of retaliation or to rebut Norton's legitimate, non-discriminatory reason for his termination. Aker now appeals.
The Kentucky Civil Rights Act, Kentucky Revised Statutes (KRS) Chapter 344, et seq., seeks "[t]o safeguard all individuals within the state from discrimination because of familial status, race, color, religion, national origin, sex, age forty (40) and over, or because of the person's status as a qualified individual with a disability[.]" KRS 344.020(1)(b). The purpose of the Act is to protect those individuals' "interest in personal dignity and freedom from humiliation[.]" Id. The Act specifically provides that it is an unlawful practice for an employer "[t]o fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment," because of, among other designated reasons, the individual's race, color, or national origin. KRS 344.040(1)(a).
An employee who claims discrimination pursuant to the Kentucky Civil Rights Act must satisfy the burden-shifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The plaintiff first bears the initial burden of proving a prima facie case of discrimination. Jefferson County v. Zaring, 91 S.W.3d 583, 590 (2002), citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. To establish a prima facie case under the circumstances presented in this case, Aker must show that he (1) is a member of a protected class, (2) was discharged, (3) was qualified for the position from which he was discharged, and (4) received disparate treatment from a similarly situated person outside of the protected class or was replaced by a person outside of the protected class. Id. at 802, 93 S. Ct. at 1824.
The trial court concluded that Aker failed to present evidence that he received disparate treatment from persons outside of his protected class. The trial court refused to consider Aker's claims that he was treated differently from African-American employees, stating that he is a member of that same protected class. In this respect, the trial court read the protection of the Civil Rights Act too narrowly. The Act protects against discrimination not only on account of race, but also color and national origin. Aker alleges that Norton discriminated against him not only because of his race, but also because of his particular ethnicity and national origin. Thus, his allegations of Norton's more favorable treatment of African-Americans or members of other minorities were relevant to show this element of his prima facie case.
In his deposition, Aker described a series of racial and ethnic remarks directed at him by personnel at Norton Hospital. However, he stated that he did not realize these remarks were offensive until after he brought this action and he never reported most of these remarks to his supervisors while he was at Norton. He also points out that Norton overlooked the disrespectful comments made by Pescador while he was attempting to discuss the situation with Paulraj.
In addition, Aker testified about another incident which occurred in March 2007. Aker testified that he was preparing to leave work at the end of his shift when he was approached by Assistant Nurse Manager Charles Copek. Copek directed Aker to move some medical equipment. Aker replied that he had already moved his equipment and that the equipment in question was the responsibility of another PCA. According to Aker, Copek became angry and stated, "I don't care whose it is - I want you to take it down there now," and then remarked, "I have to get to the point with this nigger." Aker submitted an affidavit from another Norton employee who corroborated his account of the exchange.
Aker further testified that he reported this incident to Higdon the following week. According to Aker, Higdon discouraged him from pursuing the complaint, stating, "Do you know if you keep talking about this topic, ... you can lose your job? ... Don't ever talk about being called a 'N' word. ... We don't tolerate this behavior at Norton. So if you keep talking about that, you might lose your job on that issue." Aker added that Higdon told him she would speak to Copek about the incident. Higdon denied that Aker ever brought this subject to her attention or that she made such statements to him.
In order to show that a plaintiff is "similarly situated" to another, the plaintiff is required to prove that all of the relevant aspects of their employment situation were "nearly identical" to those of the "similarly situated" employee. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994). The trial court found that the other incidents alleged by Aker, including the incident with Copek, were distinguishable because no other instance involved threatening language. The trial court concluded that the "[a]lleged, undisciplined comments directed at Plaintiff, while offensive, were not threatening or such as would foster a dangerous work environment."
However, a plaintiff's showing does not have to be one of "exact correlation with the employee receiving more favorable treatment." Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). Courts consider whether the plaintiff and the employees with whom he compares his treatment "have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
While the alleged conduct by Copek was significantly different from the conduct for which Aker was terminated, we disagree with the trial court that it was distinguishable in its level of seriousness. Moreover, Aker alleges that Higdon discouraged him from pursuing this complaint against Copek, while she immediately pursued Pescador's complaint against him. Any issues of weight and credibility of Aker's testimony were not appropriately considered on a motion for summary judgment. Under the circumstances, we conclude that Aker presented sufficient evidence to meet this element of his prima facie case.
Although the trial court found that Aker had failed to establish an essential element of his prima facie case, it went on to discuss the sufficiency of the proof on the remaining elements of the McDonnell Douglas test. Upon establishing a prima facie case of discrimination, the burden shifts to the employer to articulate a "legitimate nondiscriminatory" reason for its action. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207, 215 (1981). As the trial court noted, Norton provided such a reason for its adverse employment action - Aker's allegedly threatening behavior toward Pescador. Consequently, the burden returned to Aker to show "by a preponderance of the evidence that the 'legitimate reason' propounded by the employer is merely a pretext to camouflage the true discriminatory reason underlying its actions." Turner v. Pendennis Club, 19 S.W.3d 117, 120 (Ky. App. 2000). See also McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. at 1825.
But while pretext cannot be shown merely by casting doubt on the validity of the employer's explanation, proof that the employer's stated reason is unworthy of credence may be circumstantial evidence of intentional discrimination because the trier of fact may infer that the employer is dissembling to cover up a discriminatory purpose. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 120 S. Ct. 2097, 2108, 147 L. Ed. 2d 105 (2000), citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993). In Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492 (Ky. 2005), the Kentucky Supreme Court reiterated this point, holding that a plaintiff cannot rebut the employer's legitimate, non-discriminatory reason simply by presenting evidence showing that there are grounds to disbelieve that stated reason. Id. at 498-99. Rather, a plaintiff may meet this burden by direct evidence, or by circumstantial evidence showing that (1) the proffered reasons for the employment decision are false; (2) the proffered reasons did not actually motivate the decision; or (3) the reasons given were insufficient to motivate the decision. Id. at 497, citing Manzer v. Diamond Shamrock Chemicals, Co., 29 F.3d 1078, 1083 (6th Cir. 1994)(overruled on other grounds).
Aker focuses heavily on the decision by the Grievance Team which found that his conduct did not rise to a Level I offense. However, pretext cannot be established by merely questioning the soundness of the employer's business judgment. Flock v. Brown Forman Corp., 344 S.W.3d 111, 117 (Ky. App. 2010), citing Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). While the Grievance Team could not find conclusive evidence that Aker intended his statement to be threatening or intimidating, the Team found that it was perceived as such by Paulraj and Pescador. As the trial court noted, reasonable persons could disagree about the severity of Aker's conduct and the sanction.
Considering the decision by the Grievance Committee, Norton's proffered reason cannot be considered to be false. Therefore, the controlling question concerns the sufficiency of Aker's evidence that the proffered reason did not actually motivate Norton's decision to fire him, or that the reason was insufficient to motivate the decision to fire him. But while the presumption of discrimination created by the prima facie case is dispelled when the employer presents a legitimate non-discriminatory reason for the employment action, the plaintiff may still use the same evidence supporting his prima facie case to establish pretext. Reeves, 530 U.S. at 148, 120 S.Ct. at 2109. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is unworthy of credence, may permit the trier of fact to conclude that the employer unlawfully discriminated. Id. at 149, 120 S.Ct. at 2109.
Here, the evidence supporting Aker's prima facie case is not particularly strong. There are significant questions concerning credibility as well as the true disparity in the treatment of the various employees. However, Norton's legitimate, non-discriminatory reason for firing Aker is not particularly strong either. It is entirely dependent upon the subjective perception of Aker's comment and tone as threatening or intimidating. As the Grievance Team noted, the statement itself was not really threatening, and the fact that witnesses perceived it to be is difficult to evaluate in hindsight.
Aker has alleged a discriminatory pattern of conduct by other Norton employees. Aker alleges that Norton's alleged failure to respond to this conduct warrants an inference that his conduct was judged by a different standard from other similarly situated employees and that Norton's reasons for terminating his employment were insufficient to motivate the decision. However, as the trial court pointed out, most of the conduct is comparably minor and was not reported to supervisors.
On the other hand, Aker states that he reported the alleged behavior by Copek, and the comments were clearly racial in character. Nevertheless, Aker fails to show any causal connection between this action and his ultimate termination. The conduct by Paulraj occurred in front of a supervisor, but it did not display any racial character. Even viewing the exchange in the light most favorable to Aker, Paulraj's actions show more of a personal or professional dislike of Aker than any racial animus. Thus, Norton's decision to accept her account of the incident over Aker's was based, at most, on a personal favoritism toward Paulraj rather than any racial discrimination against Aker. Such employment decisions are not actionable under the Civil Rights Act. In the absence of any other evidence showing a discriminatory motive by Norton, the trial court properly granted summary judgment on Aker's discrimination claim.
Aker next argues that the trial court also erred by dismissing his retaliation claim. A retaliation claim employs a similar burden-shifting analysis as a discrimination claim. A prima facie case for retaliation requires a plaintiff to demonstrate that (1) he engaged in protected activity; (2) that the exercise of his civil rights was known by the defendant; (3) that, thereafter, the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 803 (Ky. 2004). See also Kentucky Dept. of Corr. v. McCullough, 123 S.W.3d 130, 134 (Ky. 2003). In cases where there is no direct evidence of a causal connection, the causal connection of a prima facie case of retaliation must be established through circumstantial evidence. Brooks, 132 S.W.3d at 804.
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. Id. 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. Id., citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509, 515 (2001). Aker relies on two incidents in support of his retaliation claim. First, he points to the statements by Copek and Higdon's response that Aker could be fired for complaining about it. And second, Aker focuses on the statement by Norton's general counsel that Norton would not consider re-hiring him because he had filed a discrimination action.
As we have noted above, Aker had failed to establish any causal connection between his reporting of Copek's statement in March of 2007 and his termination in November of that year. The second basis for his retaliation claim is more complicated. On March 5, 2008, Powell, Norton's general counsel, candidly admitted to Aker's counsel that Norton would not consider re-hiring Aker precisely because Aker had filed a discrimination claim against it. On its face, such a statement would seem to be direct evidence of a retaliatory motive.
Norton contends that the testimony about the alleged statement by Powell would be inadmissible under Kentucky Rules of Evidence (KRE) 408. The rule provides that offers to compromise and statements made in the context of settlement negotiations are not admissible to "prove liability for or invalidity of the claim or its amount," and that "[e]vidence of conduct or statements made in compromise negotiations is likewise not admissible." However, Powell's alleged statement was not made as part of a settlement negotiation, but was a statement declaring Norton's refusal to consider a compromise or settlement. Moreover, Aker does not offer the statement as proof of the validity of his underlying discrimination claim, but in support of his separate retaliation claim. For purposes of this summary judgment motion, we do not find that KRE 408 would require exclusion of the statement.
The trial court concluded that Norton was within its rights to fire Aker, and it further was not bound to transfer Aker as recommended by the Grievance Team. Since Aker had already been terminated when general counsel made this statement, the trial court took the position that Norton was also within its rights not to re-hire Aker for any reason. However, KRS 344.280 makes it unlawful for one or more persons "[t]o retaliate or discriminate in any manner against a person ... because he has made a charge, filed a complaint, testified, assisted or participated in any manner in any investigation, proceeding, or hearing under [the Civil Rights Act]." The focus of the Act is to protect an employee from retaliation for filing a discrimination claim. Thus, the viability of a retaliation claim is not dependent upon the sufficiency of the employee's proof on the underlying discrimination claim.
Norton, on the other hand, points out that Aker only made general inquiries through his counsel about being re-hired. He had not filed an application for employment at the time this statement was made. In the absence of any formal application, Norton argues that Aker cannot show that it took any adverse employment action because he had filed a discrimination claim. Jones v. Alabama Power Co., 282 Fed. Appx. 780, 785 (11th Cir. 2008), citing Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005), and Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1345 (11th Cir. 2003).
A formal application is not always necessary to establish an adverse employment decision in a discrimination or retaliation claim. Wanger v. G.A. Gray Co., 872 F.2d 142, 145 (6th Cir. 1989). The employee's failure to formally apply for the position in question is not fatal to a retaliation claim where the employer creates "an atmosphere in which employees understand that their applying for certain positions is fruitless…". Id., citing Babrocky v. Jewel Food Co., 773 F.2d 857, 867 (7th Cir. 1985), and Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 761 (9th Cir. 1980). "Only in the rare case where an employer has essentially foreclosed the interactive process through its policies or explicit actions will the futile gesture doctrine apply." Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 629 (10th Cir. 2012), citing Davoll v. Webb, 194 F.3d 1116, 1133 (10th Cir.1999).
Consequently, an individual non-applicant must establish that the filing of an application would have been futile. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 366-68, 97 S. Ct. 1843, 1870-71, 52 L. Ed. 2d 396 (1977). The alleged statement by Powell (which we believe to have been extremely ill-advised) was clearly intended to discourage Aker from applying for any position after he filed his discrimination claim. Being told by a Vice President and the General Counsel of Norton that Aker would not be considered for a position, even if he dismissed the case, is a perfect demonstration of the futility in filing an application. In addition, the Grievance Resolution Team determined that Aker be given the opportunity to make an internal application for another position, which he did without success.
We believe that Aker has met his burden to withstand summary judgment: he has shown his continuing interest in employment with Norton Healthcare, initially trying to get a transfer and applying for other positions. He also inquired as to when he could resume his employment, both personally and through his counsel's inquiry. It appears that there were other jobs that he was qualified for, but he was told he would not be considered. Once he was told that he would not be hired because he had filed suit, we do not believe that under these circumstances he had to apply and face certain rejection.
Accordingly, the summary judgment granted by the Jefferson Circuit Court is affirmed in part and reversed in part. We remand this case to the Jefferson Circuit Court for further proceedings.
THOMPSON, JUDGE, CONCURS.
MAZE, JUDGE, CONCURS IN PART AND DISSENTS IN PART. MAZE, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: I fully agree with the majority that summary judgment was appropriate on Aker's employment-discrimination claim against Norton Healthcare. I also agree with most of the majority's analysis regarding Aker's retaliation claim. Indeed, the majority correctly holds that Powell's remarks to Aker's prior counsel could be considered as direct evidence of a retaliatory motive. Nevertheless, Aker still has the burden of proving that Norton took adverse employment action against him because he had filed a discrimination claim. Under the particular facts of this case, I disagree with the majority that Aker satisfied this element of his prima facie case.
As the majority correctly notes, a party asserting retaliation generally must show that he had applied for a position for which he was qualified and was rejected in retaliation for filing a discrimination claim. In this case, Aker had only made general inquiries through counsel about being rehired and he not filed an employment application at the time Powell made the statements. However, as the majority also correctly finds, a formal application is not necessary where the individual non-applicant establishes that the filing of an application would have been futile. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 366-68, 97 S. Ct. 1843, 1870-71, 52 L. Ed. 2d 396 (1977).
The majority presents a compelling argument that Aker could establish futility under the circumstances presented in this case. However, Aker has never made such a claim, either before this Court or before the trial court. Rather, he has argued only that direct evidence of a retaliatory motive, without more, is sufficient to establish a prima facie case for retaliation. As a question of law, this Court must acknowledge established precedent which allows a showing of futility to satisfy the required element of Aker's prima facie case. But on the issue of fact, Aker bears the burden of raising the issue and directing the Court to facts in the record which would support a finding of futility. Since he has failed to meet either burden, I would decline to address this issue further and I would affirm the trial court's decision to grant summary judgment. BRIEFS FOR APPELLANT: Everett C. Hoffman
Louisville, Kentucky
BRIEF FOR APPELLEE: Jeremy Rogers
Louisville, Kentucky