486 S.W.3d 246
Ky.2016Background
- Deborah Powell was Asbury University’s women's basketball coach from 2002 until her termination in February 2008 after allegations of inappropriate conduct with an assistant coach.
- Powell had filed a formal gender-discrimination grievance in 2005 and continued to make oral complaints about perceived sex-based disparities in duties, resources, and treatment through January 2008.
- After player complaints about Powell’s interaction with an assistant, Provost Kulaga investigated, placed her on leave, barred campus access and contact with players, and terminated her.
- Powell sued for defamation, gender discrimination (KRS 344.040), and retaliation (KRS 344.280(1)). The jury found for Asbury on defamation and discrimination but found Powell liable on retaliation, awarding lost wages and emotional-distress damages.
- Asbury appealed; the Court of Appeals affirmed. The Kentucky Supreme Court granted discretionary review to decide whether a KRS 344.280(1) retaliation claim requires an underlying KCRA violation and which causation standard applies, among other issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether KRS 344.280(1) retaliation requires proof of an actual underlying KCRA violation | Powell: No — retaliation protection attaches to protected opposition activity (good-faith belief), even if the underlying conduct is not ultimately unlawful | Asbury: Yes — because no underlying discrimination was found, retaliation claim fails | Held: No. Retaliation claim does not require proof of an actual underlying KCRA violation; a reasonable, good-faith belief in discrimination suffices |
| Causation standard required for KRS 344.280(1) retaliation | Powell: Kentucky precedent (Price Waterhouse lineage) supports motivating-factor instructions and burden-shifting nuances | Asbury: Kentucky should follow U.S. Supreme Court in Nassar requiring but-for causation for retaliation claims | Held: But-for causation is required; Kentucky precedent already reached same practical result — jury must find adverse action would not have occurred but for protected activity ("substantial-motivating factor" language is surplusage) |
| Sufficiency of evidence to support retaliation (causal link) | Powell: Evidence of repeated protected complaints, close temporal proximity, discussion of prior complaints by decisionmakers, differential treatment, and procedural irregularities supports an inference of but-for causation | Asbury: No direct causal evidence; protected 2005 complaint too remote; proffered legitimate nondiscriminatory reasons negate causation | Held: Sufficient circumstantial evidence existed (awareness, temporal proximity, differential treatment, evidence of pretext) to send causation to the jury; directed verdict unwarranted |
| Trial and post-trial procedural/evidentiary claims (admission of lay/quasi-expert testimony, at-will instruction, damages, attorneys’ fees) | Powell: Testimony and instructions were admissible/adequate; damages and fee awards were reasonable | Asbury: Objected to Dr. Pritchett’s opinion, sought at-will employment instruction, challenged $300,000 emotional-distress award as quotient or passion-driven, and argued fee award excessive | Held: Any error in admitting Pritchett’s testimony was harmless; at-will instruction unnecessary; no competent proof of a quotient verdict or passion/prejudice; attorney-fee award was reasonable and within trial court discretion |
Key Cases Cited
- Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir. 2000) (protective opposition activity can support retaliation even if underlying practice is not proven unlawful)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (retaliation standard tied to retaliatory act, not underlying conduct)
- Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463 (6th Cir. 2012) (employee’s reasonable good-faith belief protects opposition activity)
- Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (Title VII retaliation requires but-for causation)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (motivating-factor framework for status discrimination claims)
- Meyers v. Chapman Printing Co., 840 S.W.2d 814 (Ky. 1992) (Kentucky jury instruction practice and causation phrasing)
- First Prop. Mgmt. Corp. v. Zarebidaki, 867 S.W.2d 185 (Ky. 1993) (applies Meyers to anti-retaliation instruction; endorses ‘but for’ phrasing as consistent with burden on plaintiff)
- Brooks v. Lexington-Fayette Urban Cty. Hous. Auth., 132 S.W.3d 790 (Ky. 2004) (elements of a KCRA retaliation claim)
- Ky. Dept. of Corr. v. McCullough, 123 S.W.3d 130 (Ky. 2003) (circumstantial evidence and temporal proximity for causation in retaliation claims)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (lodestar method for attorney’s fees)