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University of Louisville v. Mary Banker and

February 1, 2013



The opinion of the court was delivered by: Lambert, Judge:

RENDERED: FEBRUARY 1, 2013; 10:00 A.M.





University of Louisville Athletic Association, Inc., (ULAA) has appealed from the judgment and orders of the Jefferson Circuit Court in favor of Mary Banker and her attorney, Bryan Cassis, resulting from a jury verdict in favor of Banker on her retaliatory discharge claim. ULAA contends that there was insufficient proof to support a retaliatory discharge verdict in her favor or to permit her to recover $300,000.00 in emotional distress damages or lost wages, and that the award of $149,325.00 in attorney fees was unreasonable. We agree with ULAA that Banker failed to prove a prima facie case of retaliation. Hence, we reverse the judgment and orders on appeal and remand this matter for dismissal of Banker's claim.

In September 2007, Mary Banker entered into a one-year employment contract with ULAA to work as an assistant men's and women's track and field coach in the University of Louisville's NCAA Division 1 intercollegiate athletic program. The contract was for a nine-month term beginning September 5, 2007, and ending June 30, 2008, and it included a non-renewal notification deadline of April 30, 2008. Over the course of her employment, Banker claimed to have been subject to gender and sexual discrimination. On April 22, 2008, Banker made an oral complaint to Malinda Durbin, the University Affirmative Action/Sexual Harassment Officer in the Human Resources Department, who instituted an investigation of her claims. On May 15, 2008, ULAA head men's and women's track and field coach, Ron Mann (Coach Mann), notified Banker that ULAA had decided not to renew her contract, a decision that had been at least contemplated on April 16, 2008.*fn1 The following day, Banker sent an e-mail to Coach Mann and ULAA Executive Senior Associate Athletic Director Julie Hermann stating her assumption that her termination was in retaliation for the HR investigation.

On August 6, 2008, Banker filed a multi-count complaint against ULAA and ULAA Athletic Director Tom Jurich seeking damages related to her employment and termination. She alleged causes of action for gender discrimination, retaliation, and hostile work environment pursuant to the Kentucky Civil Rights Act (KCRA), Kentucky Revised Statutes (KRS) Chapter 344, as well as for breach of contract, breach of implied covenants of good faith and fair dealing, public policy wrongful discharge, and intentional infliction of emotional distress. Banker sought compensatory damages for past and future lost wages and benefits, and for emotional distress, mental anguish, humiliation, and embarrassment. She also sought punitive damages as well as the payment of attorney fees and costs.

In its answer, ULAA set forth several affirmative defenses, including the application of the doctrine of sovereign immunity, the failure to state a claim upon which relief could be granted, and the doctrines of waiver and estoppel. It also stated that punitive damages were not available for alleged breach of contract or for violations of the KCRA. Prior to filing an answer, Jurich moved to be dismissed as a defendant. The circuit court dismissed the claims against Jurich for public policy wrongful discharge, gender discrimination, hostile work environment, and breach of contract. However, the circuit court did not dismiss the claims for retaliation or intentional infliction of emotional distress at that time.

Jurich then filed his answer to Banker's complaint. In November 2009, by agreed order of partial dismissal, the circuit court dismissed Banker's claims for public policy wrongful discharge and intentional infliction of emotional distress as to both ULAA and Jurich pursuant to Kentucky Rules of Civil Procedure (CR) 41.01.

This ruling left five claims remaining against ULAA and one against Jurich (retaliation).

Both ULAA and Jurich filed motions for summary judgment seeking a dismissal of Banker's complaint, stating that no genuine issues of material fact existed and that they were entitled to a judgment as a matter of law. They argued that there was a lack of causal connection between Coach Mann's decision to terminate Banker's contract on April 16, 2008, and her complaint to HR several days later on April 22, 2008. By order entered September 10, 2010, the court denied Jurich's motion, but granted ULAA's motion in part related to Banker's claims for breach of contract and for breach of implied covenants of good faith and fair dealing. The court permitted Banker's claims against ULAA for gender-based hostile work environment, gender discrimination, and retaliation to proceed.

The circuit court held a jury trial beginning September 13, 2010. At the conclusion of Banker's case, the court granted a directed verdict in favor of Jurich on the retaliation claim, dismissing him from the case entirely. The court also granted a directed verdict in favor of ULAA on Banker's gender discrimination claim, but denied this motion as to the other two claims. Following the presentation of ULAA's case, the court again denied ULAA's renewed directed verdict motions. After deliberation, the jury returned a verdict in favor of ULAA on Banker's hostile work environment claim and in favor of Banker on her retaliatory discharge claim. The jury awarded $300,000.00 in damages for mental and emotional distress for retaliation.*fn2 The jury then awarded Banker $71,875.00 in lost wages, the full amount she had requested, for a total award of $371,875.00. The court entered interim findings setting forth the jury's verdict and permitting Banker to recover her costs and a reasonable attorney fee. Banker's attorney, Bryan Cassis, requested a total of $250,000.00 in attorney fees for his work on the case, as well as costs totaling $1,938.33. After considering the parties respective positions relative to a reasonable fee, the circuit court ultimately awarded attorney Cassis $149,325.00 in attorney fees and $875.33 in taxable costs. Finally, the court opted not to assess post-judgment interest against ULAA. By order entered May 18, 2011, the court made its interim findings and subsequent rulings related to costs, attorney fees, and post-judgment interest a final and appealable ruling.

On May 31, 2011, ULAA filed a motion for a judgment notwithstanding the verdict (JNOV) or for a new trial, arguing that Banker offered no evidence to prove her HR complaint was causally connected to the decision to terminate her employment, that the $300,000.00 award was excessive, that she failed to mitigate her damages and was therefore not entitled to lost wages, and that the amount of attorney fees awarded was unreasonable. Banker objected to the motion, and the circuit court denied ULAA's motion on July 12, 2011. This appeal by ULAA now follows.

On appeal, ULAA continues to argue as it did before the circuit court that Banker did not present sufficient proof to support a retaliatory discharge verdict, the recovery of lost wages, or the award for damages for emotional distress. Regarding attorney fees, ULAA contends that the amount of fees awarded to attorney Cassis was excessive. We agree with ULAA that Banker failed to establish sufficient proof to establish a causal connection between her termination and her HR complaint.

Banker's retaliation claim is premised on a causal connection between the filing of her HR complaint on April 22, 2008, and the notification of her termination on May 15, 2008, approximately three weeks later. ULAA bases its argument that she failed to establish a causal link upon the holding of the United States Supreme Court in Clark County School Dist. v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001), contending that the undisputed proof introduced at trial established that ULAA had been contemplating the non-renewal of Banker's contract prior to her complaint to the HR department, meaning that there was no causal connection between Banker's protected activity ...

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