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Lindsey v. Board of Trustees of University of Kentucky

Court of Appeals of Kentucky

February 2, 2018



          BRIEFS FOR APPELLANT: William C. Jacobs Lexington, Kentucky

          BRIEF FOR APPELLEES, UNIVERSITY OF KENTUCKY AND TRACEY EADES: William E. Thro Lexington, Kentucky Barbara A. Kriz Lexington, Kentucky BRIEF FOR APPELLEE, LISA TURNER: Erica K. Mack Lexington, Kentucky.



          JONES, JUDGE:

         Tonya Lindsey has appealed from the orders of the Fayette Circuit Court granting summary judgment and dismissing her claims for violations under the Kentucky Civil Rights Act, including both race and gender discrimination under KRS[2] 344.040 and retaliation under KRS 344.280. In addition to alleging that the circuit court erred in granting summary judgment and abused its discretion in evidentiary rulings, Lindsey argues that the circuit court judge should have recused or been disqualified from presiding over the case. After careful review, we affirm the circuit court's order regarding discrimination and find no error in the circuit court judge's refusal to recuse; however, we reverse the circuit court's order regarding retaliation and remand Lindsey's retaliation claim for further proceedings.

         I. BACKGROUND

         In 1990, Lindsey, an African-American woman, began working at the University of Kentucky ("UK").[3] Lindsey alleges that during her tenure at UK she was passed over for promotion to the Clinical Coordinator position on three separate occasions. Lindsey asserts that UK's decisions not to promote her were impermissibly driven by the race and gender biases of her supervisors in violation of Kentucky's Civil Rights Act.

         The first time Lindsey applied to be Clinical Coordinator was in 1999. Lindsey testified in her deposition that she was interviewed for the position, but another woman, Denise Holder ("Holder"), who was not African-American, got the position. Lindsey testified that she talked to the chief physician in the department about not being promoted, but she did not bring up race. Lindsey also talked to Terry Allen ("Allen"), the head of the equal opportunities office at UK. She told him that she felt qualified for the Clinical Coordinator position based upon the job description; however, she felt like she had not been offered the job due to her gender and race. Lindsey believed that she was more qualified than Holder, given that Lindsey had her certified nursing assistant license.

         When the Clinical Coordinator position opened up again on February 25, 2002, Lindsey testified in her deposition that she again applied for the position. But the records reviewed by Catherine Lasley-Employment Manager of UK's Human Resources ("HR") office-indicate that Lindsey did not actually apply for the position at that time. Lindsey said that she had asked Julia Snow ("Snow"), who was the administrative staff officer for the department, [4] about interviewing for the position and that Snow told her that she would not have to interview for the position since she was already employed in the department. As it turns out, however, Snow was not in charge of promoting someone to that position. Subsequently, Lindsey was never interviewed, and the position, ultimately, was given to Gary Broome ("Broome"). Broome was not working for UK at the time he was awarded the position.

         Lindsey testified that she applied for the Clinical Coordinator position a third time in October of 2003.[5] However, the application process was clouded by Broome's unusual resignation. Despite being on an improvement plan, such that Snow had been coaching Broome to better manage the clinic, Broome told UK that he was going to resign from his Clinical Coordinator position. Consequently, UK posted the position online, and Lindsey applied for the position. But Broome changed his mind about resigning before UK hired anyone. Broome asked to remain Clinical Coordinator, and UK obliged, hoping that Broome's performance would improve. Accordingly, because Broome did not resign, UK took down its online posting.

         A few months later, however, after Broome accepted a different position at UK, the Clinical Coordinator position was once again opened. UK posted the position online for seven days in January of 2004, requiring a second application from Lindsey to be considered for the position. But Lindsey did not see the January 2004 posting and, therefore, did not submit an on-line application. Instead, Lindsey learned at an informal staff meeting that Tracey Eades ("Eades"), a white male co-worker who learned about the reposted position from Snow, was temporarily filling the Clinical Coordinator position until a new Clinical Coordinator was hired. At that meeting, Lindsey asked Snow why Eades was temporarily filling the position, and Snow allegedly responded by telling Lindsey "to understand that [Lindsey's] a black woman, and [she] cannot have a management position." Snow allegedly explained that Lindsey was from a different world and that black women are "aggressive or dominant, assertive."

         Snow, however, denied making those remarks in her deposition. Snow claimed that, in trying to establish a rapport with Lindsey, she had told Lindsey about her daughter's coach who was a "wonderfully assertive" black woman. Snow claimed that she admired her daughter's coach and that she told Lindsey that she wanted to be more assertive and direct in the way she communicated, like Lindsey, her daughter's coach, and Jocelyn Hill, a black employee in the department. Snow denied ever using the word "aggressive[.]"

         Later that day, after the informal staff meeting, Snow asked Lindsey if she was still interested in the Clinical Coordinator position and then informed Lindsey that the position had been posted again but taken down. Lindsey later learned that the position had ultimately been given to Eades.

         At a meeting on March 10, 2004, Allen addressed Snow's remarks to Lindsey as well as Eades's previous remark to Lindsey, which was prior to Eades's position as Clinical Coordinator. As co-workers, Eades had asked Lindsey what she would think if someone told her, "I haven't seen you in a coon's age." Eades explained that he had heard the phrase and had considered using it colloquially, but he knew the word "coon" was a derogatory term towards African-Americans, so he decided to ask Lindsey, whom Eades considered a friend, if "coon's age" was similarly derogatory and if she would be offended if someone used that phrase when speaking to her. Eades thought that Lindsey would give him an honest answer. And, Lindsey did: she told Eades that the phrase was offensive. Although Eades did not think Lindsey was offended by his question at that time, Eades later found out, as Lindsey's supervisor, that she had been offended.

         At the meeting on March 10, 2004, Lindsey said that the remarks by Snow and Eades had created a hostile working environment. Furthermore, Lindsey alleged that she had been discriminated against; Lindsey alleged that she had been repeatedly passed over for promotion to the Clinical Coordinator position for race-based and gender-based reasons. Lastly, she requested that no one retaliate against her because of her complaints.

         On April 9, 2004, Lindsey filed a Stage 1 grievance, alleging illegal acts of discrimination and retaliation. Lindsey alleged, in her grievance, that Eades had disciplined Lindsey with a written warning for refusing to setup a proctology room, which Dr. Curtis J. Clark witnessed and testified about in a deposition, in retaliation for Lindsey's accusations of discrimination at that meeting on March 10, 2004. Subsequently, at a meeting on April 23, 2004, Lindsey allegedly made inappropriate comments to Eades about how he was able to apply for and receive the Clinical Coordinator position, causing Eades to formally warn Lindsey about her behavior.

         On August 31, 2005, Lindsey filed her suit, seeking damages for the alleged discriminatory and retaliatory conduct mentioned above.[6] As defendants, she named the Board of Trustees of UK and Eades; UK filed an answer to the complaint, disputing Lindsey's allegations. About a year after the original complaint was filed, Lindsey moved for leave to file a first amended complaint to add Lisa Turner ("Turner") as a defendant. Turner was Lindsey's supervisor at that time because Eades had left UK for another job. Lindsey alleged that Turner both retaliated and discriminated against Lindsey. UK and Turner, by special appearance, objected to Lindsey's motion, noting that Lindsey had not made a showing to permit the court to conclude that justice required the amendment. Lindsey had not identified Turner as the perpetrator of any act of discrimination or retaliation during any discovery, including her deposition or interrogatory responses, prior to filing the motion. The following year, after Lindsey included more specific facts in her amended complaint to add Turner as a defendant, the circuit court granted Lindsey's motion to file an amended complaint.

         Lindsey testified about Turner at a deposition, explaining why she wanted to name Turner as a defendant in her lawsuit. Lindsey believed that Turner had wrongfully disciplined her because the disciplinary actions taken against her were, in her opinion, a cover up for racial discrimination following the filing of her lawsuit against UK. Although Lindsey had not discussed with Turner the fact that she had filed a complaint against Eades for making racially insensitive statements or that Snow had made racially insensitive comments to her, Lindsey believed that Turner knew about her past complaints. Lindsey based this belief on comments that Turner had made to her. For instance, Turner mentioned to Lindsey that someone told Turner that Lindsey was not a good worker.

         At her own deposition, Turner explained that, upon starting her job as Clinical Nurse Manager for the clinic improvement team, a co-worker of Lindsey's, Mary Lawson, informed Turner that there was a "discrepancy" between Lindsey and UK. Snow, in turn, allegedly told Turner that Lindsey was not a desirable employee and "further instructed [Turner] to closely scrutinize [Lindsey] and document her performance." Even though Turner testified that she thought someone should have told her about Lindsey's lawsuit against the department, Turner admitted that she did not know about Lindsey's lawsuit until after Turner had recommended Lindsey's firing. This, it turns out, was by design. Snow, at her deposition, stated that UK made the decision to not inform Turner of Lindsey's lawsuit when hiring Turner. UK wanted to give Turner a "clean slate[.]" UK wanted Turner's fresh perspective to identify, and/or verify, all of the problems in the clinic. UK did not want to simply tell Turner about the problems in the clinic.

         After Turner began the job in January of 2006, she identified several problems with Lindsey's job performance: issues completing the fee sheets and handling cash deposits correctly on a daily basis, having a high number of open encounters, and having a lower number of answered telephone calls than she should have had as the secondary phone answerer. Turner met with Lindsey in January of 2006 to discuss matters, including Lindsey's job description and how much time she was to spend per day on her job responsibilities.[7]

         Sometime after mid-February of 2006, Turner again met with Lindsey to discuss her performance evaluation for 2005, which had been completed by Snow and Laura Williams. The evaluation showed that Lindsey struggled with fees that generated error messages, that she struggled with handling open encounters, and that the number of appointments she scheduled per month was low. Significantly, the evaluation stated: "It does not appear that her performance is meeting the standards of the department." Lindsey, however, responded to this evaluation in a handwritten note, writing that her duties as well as the processes and procedures had changed a number of times during 2005 and that expectations set by different individuals were contradictory and confusing.[8]

         To assist Lindsey with her responsibilities, Turner retrained Lindsey in cash handling, assisted her in completing the fee sheets, and had another employee train her on coding. Snow, however, allegedly told Turner to stop helping Lindsey; and Turner obliged, allegedly feeling pressured by UK to do so. Turner went on to discipline Lindsey for sending excessive emails regarding issues related to the fee sheet protocol that Turner claimed had been clarified. After that, Turner met with UK's HR and recommended to HR that Lindsey be terminated. No one disagreed with Turner's recommendation. Therefore, on September 14, 2006, Lindsey was involuntarily terminated for inappropriate or unsuitable job performance.

         In April of 2010, after years of discovery and depositions, UK filed a motion for summary judgment seeking dismissal of Lindsey's claims. In a separate memorandum, UK argued that the undisputed material facts made it impossible for Lindsey to establish the essential elements of her discrimination and retaliation claims.[9] Moreover, UK claimed that it had legitimate, non-retaliatory bases for giving Lindsey written and oral warnings. Lindsey objected to UK's motion and argued that Snow's words provided direct evidence of discriminatory animus. The circuit court entered an opinion and order on November 2, 2010, granting UK's motion for summary judgment. Lindsey moved the circuit court to alter, amend, or vacate its order pursuant to CR[10] 59.05, but the circuit court did not grant Lindsey's motion.

         In January of 2011, new counsel was substituted for Turner. The following month, Turner moved for leave to file a cross-claim against UK pursuant to CR 13.07. After Lindsey's termination, UK had demoted Turner from her Clinical Nurse Manager position to a research position, and then UK eliminated that research position. In her cross-claim, Turner alleged that when she began working for UK she was pressured by her superiors to closely scrutinize Lindsey so that Lindsey could be fired. Turner testified and plead that she gave in to UK's pressure because she feared for her job. Nevertheless, according to Turner's cross-claim, UK still retaliated against Turner by demoting, harassing, and terminating her after UK fired Lindsey.

         In March of 2011, the circuit court granted Turner's motion for leave to file a cross-claim and granted Lindsey's motion to supplement her response to the motion for summary judgment. The circuit court also vacated the order granting summary judgment in light of the new evidence set forth in the cross-claim. After additional discovery, UK moved the circuit court to reinstate its previous opinion and order granting summary judgment, pointing to evidence that Turner was terminated for clocking in and then leaving work while still on the clock. At a hearing on January 27, 2012, the circuit court orally denied the motion to reinstate, reopened discovery for sixty days, and permitted Lindsey to depose Turner on the issues raised in her cross-claim.

         Sometime thereafter, Turner dismissed her cross-claim against UK. After the dismissal, Lindsey deposed Turner. This caused a dispute between the parties regarding whether communications between UK's former counsel, Edmund Benson, and UK regarding Turner's employment as well as her involvement in Lindsey's litigation were protected by the attorney-client privilege. By a protective order entered May 7, 2012, the circuit court precluded Lindsey from deposing UK's former counsel pending further order of the court. Lindsey then moved to depose UK's former counsel by avowal, claiming that the services of UK's former counsel were in furtherance of a fraud-an exception to the attorney- client privilege. The circuit court denied Lindsey's motion by order entered July 3, 2012.

         In September of 2012, UK filed a renewed motion for summary judgment, arguing that Lindsey's termination was the result of her performance issues-not her grievance and lawsuit. Turner filed a similar motion as to the retaliation claims against her. In October of 2012, Lindsey moved the court to vacate its July 3, 2012, protective order to permit Lindsey to depose Edmund Benson, UK's former counsel. On November 13, 2012, the court orally denied the motion to vacate the protective order and took the summary judgment matter under advisement. After Lindsey again attempted to obtain Benson's testimony by avowal, pursuant to KRE[11] 103 this time, the circuit court denied Lindsey's motion on May 13, 2013.

         In December of 2014, Lindsey filed her own motion for summary judgment, arguing that direct evidence of discriminatory animus existed regarding Lindsey's failed promotions. Both UK and Turner objected to the motion. In July of 2015, Lindsey moved the circuit judge to recuse himself from the case pursuant to KRS 26A.015(2)(a) based upon the circuit judge's previous ruling on the motion for summary judgment in favor of UK, which Lindsey alleged biased the judge in favor of UK. The circuit court orally denied this motion at a hearing on July 17, 2015. Lindsey next filed an affidavit pursuant to KRS 26A.020 to the Chief Justice of the Supreme Court of Kentucky, seeking recusal and the appointment of a special judge. The Chief Justice denied Lindsey's motion for disqualification on July 30, 2015.

         On November 4, 2015, the circuit court entered an opinion and order granting UK's renewed motion for summary judgment, reasoning that Lindsey had failed to meet the requirements for a discrimination claim under the McDonnell-Douglas[12] framework and that Lindsey had failed to meet the requirements for a retaliation claim under the modified McDonnell-Douglas framework. Furthermore, by order entered November 10, 2015, the circuit court amended its previous opinion and order to clarify that all renewed motions for summary judgment by the defendants were granted and that the amended judgment was final and appealable.

         On November 13, 2015, Lindsey moved the circuit court to alter, amend, or vacate its amended judgment pursuant to CR 59.05 to correct the date of the prior opinion and order and to identify the renewed motions for summary judgment it was granting. By separate motion filed the same day, Lindsey moved the court to alter, amend, or vacate the November 4, 2015, opinion and order. A hearing was scheduled for November 20, 2015, to address Lindsey's motions. But on November 18, 2015, Lindsey filed a second affidavit pursuant to KRS 26A.020, seeking recusal of the circuit judge and the appointment of a special judge. This affidavit was forwarded to the Chief Justice on January 13, 2016, and by order entered January 21, 2016, the Chief Justice denied the motion for ...

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