FROM FAYETTE CIRCUIT COURT HONORABLE PAMELA R. GOODWINE,
JUDGE ACTION NO. 14-CI-03827
FOR APPELLANT: Joseph L. Rosenbaum Lexington, Kentucky
FOR APPELLEE: Richard G. Griffith Lexington, Kentucky
ARGUMENT FOR APPELLANT: Jason D. Thompson Lexington, Kentucky
ARGUMENT FOR APPELLEE: Elizabeth S. Muyskens Lexington,
BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES.
JUDGE: The Appellant, Michael Powers ("Powers"),
appeals from the November 17, 2015, summary judgment and
order of the Fayette Circuit Court dismissing his claim of an
alleged violation of Kentucky's Civil Rights Act,
Kentucky Revised Statutes (KRS) Chapter 344
("KCRA") against Appellee, Keeneland Association,
Inc. ("Keeneland"). The trial court concluded that
Powers was not an employee of Keeneland, but rather an
independent contractor, and therefore, unable to invoke the
protections KCRA. For the reasons set forth below, we affirm.
began working for Keeneland as a chaplain in October of 1999.
As a chaplain, Powers's job duties included ministering
to the backside workers, performing Sunday services during
race meets, giving devotionals during race meets, presiding
over funerals, and performing blessings, when requested to do
so, during meals. Keeneland did not dictate how Powers was to
conduct his ministry. Powers created his own schedule and was
permitted to carry out his ministry as he deemed appropriate.
received a monthly salary from Keeneland and was given an
annual raise every July. Keeneland also reimbursed for all
business-related expenses, paid various membership dues, and
paid for his monthly cell phone bill. Keeneland also provided
Powers with an office, office supplies, business cards,
letterhead, and stationary. According to Powers, he was also
provided a truck and a golf cart
by Keeneland. Keeneland also provided Powers two designated
parking spaces, one for the truck and the other for the golf
cart. Powers also received an employee discount in the gift
shop and free admission to the track on race days.
indicated that Powers was an employee on various documents it
submitted to the Kentucky Racing Commission. Keeneland did not, however, offer Powers
health insurance or pay any workers' compensation
premiums on Powers's behalf. Moreover, Keeneland reported
Powers's wages via a 1099 Form, as Powers was obligated
to pay self-employment taxes on his own behalf. Powers did
not participate in Keeneland's retirement plan. He also
did not receive any sick leave or vacation time.
continued working for Keeneland for approximately fourteen
years. He was eventually terminated in September 2013.
Following his termination, in October 2014, Powers filed suit
in Fayette Circuit Court alleging Keeneland engaged in
disability discrimination in violation of KCRA when it
terminated him. After a period of
discovery, on April 28, 2015, Powers filed a motion with the
trial court for partial summary judgment on two issues: 1) a
determination of whether he was an employee of Keeneland or
an independent contractor; and 2) whether Keeneland
discriminated against Powers due to his disability.
response to Powers's motion, Keeneland submitted an
affidavit from Vince Gabbert, Keeneland's Chief Financial
Officer. This was the first time Keeneland had relied on the
testimony of Gabbert, as it had previously only designated
Gerald "Jerry" Hale, Keeneland's Director of
Human Resources, as its corporate representative. Powers
filed a motion to strike Gabbert's affidavit since only
Hale was ever identified as a corporate representative for
Keeneland and Powers had not had the opportunity to depose
Gabbert. Both parties briefed the motions and a hearing on
the motions was held before the trial court on August 18,
September 9, 2015, the trial court overruled Powers's
motion for partial summary judgment regarding his claim that
Keeneland discriminated against him because he is a qualified
individual with a disability finding that genuine issues of
material fact existed regarding Powers's claim.
Concerning whether Powers was an employee of Keeneland or an
independent contractor, the trial court ordered that it was
taking that issue under advisement. The trial court stated
that "[a]fter additional discovery, including the
completion of Powers's deposition, the parties may, but
are not required to, submit supplemental briefs that discuss:
(1) how Powers became chaplain for Keeneland; and (2) how
Powers was paid while serving as chaplain, whether directly
or through a third-party." Neither party filed a
by order rendered November 17, 2015, the trial court
determined that Powers was not an employee of Keeneland, and
therefore, could not bring a claim for employment
discrimination based on the KCRA. In its findings, the trial
court stated Powers had the discretion of how he would
minister to the backside workers and was free to dictate his
own schedule. Powers received no employee benefits and was
free to travel on and off of Keeneland's property.
trial court also noted that Powers was originally paid
through the Kentucky Race Track Chaplaincy, received a 1099,
and paid self-employment taxes. This appeal followed.
KCRA makes it "an unlawful practice for an employer: (a)
To 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 . . . the person is a qualified
individual with a disability." KRS 344.040(1)(a). The
KCRA's protection from job-related discrimination extends
only to employees, not to independent contractors. See
Steilberg v. C2 Facility Sols., LLC, 275 S.W.3d 732, 735
(Ky. App. 2008). Powers asserts that he was unlawfully
terminated because of his disability, Parkinson's
disease. Therefore, to prevail, Powers much first demonstrate
that he is an employee, not an independent contractor. The
KCRA defines an employee simply as "an individual
employed by an employer." KRS 344.030(5).
Steilberg, we adopted the Sixth Circuit's use of
the common-law agency test to determine whether an individual
is an agent or an independent contractor under the KCRA.
Id. (citing Simpson v. Ernst & Young,
100 F.3d 436 (6th Cir. 1996)). In Kentucky, our common-law
agency law is based primarily on the Restatement (Second) of
Agency § 220(2) (1958). See Kentucky Unemployment
Ins. Comm'n v. ...