*1 of these proper interpretation with the ignore cannot issues. Yet we
complicated have on an af- disclosure can impact life. for This is reason person’s
fected if 214.181 and it cannot be attained
KRS 25:096, KAR Section 342.020
KRS
2(5) interpreted otherwise.
Therefore, for discussed the reasons
herein, respectfully I dissent would Ap- decision the Court of
affirm the
peals, sending this back to the trial matter further consistent proceedings
court opinion. this
with KELLER, JJ., join
COOPER
dissenting opinion. LUMPKINS, Minor, by
Brandon Parent Friend,
and Next Latonia LUMP Anthony;
KINS; Kenneth R. and Ja Starks, Appellants/Cross-Appel
son
lees, LOUISVILLE, OF
CITY
Appellee/Cross-
Appellant. 2003-SC-0267-DG,
No.
2003-SC-851-DG. Kentucky.
Supreme Court of
March 2005.
Law, Louisville, Appel- Counsel lee/Cross-Appellant. Justice
Opinion the Court *3 WINTERSHEIMER. are cross-appeal from appeal
This Appeals an revers- opinion of judgment on a verdict in ing a based alleging of the in an action plaintiffs favor discrimination from resulting racial a hos- Ap- tile work The Court of environment. in- peals on the basis reversed trial to structions failed used incident, an isolated language include serious, extremely to unless insufficient a environment. The establish hostile work appellants awarded each $167,000 and humilia- for embarrassment tion. questions presented whether follow “bare Court; rule
bones” favored wheth- objec- preserved er the its properly instructions; sup- tion to the whether the to plemental requires instruction multiple discriminatory find incidents of in hostile conduct to find a work order environment; verdict is whether evidence; supported by the whether the by failing trial discretion abused her give interrogatories; the jury whether plaintiffs they suffered established job detriment; tangible a and whether the damages to a new trial on entitled improper of an verdict. because appellants are African-Americans for the lifeguards public who worked as in pools operated by Louisville Cohen, Cynthia Ef- Lynn Glenn Alan 1997, during which time the summer of Hershberg, fínger, Joseph Paul & Seiller subjected they they claim that were Louisville, Handmaker, LLP, Counsel for of a hostile racial discrimination as result Appellants/Cross-Appellees. They they assert that work environment. Hall, assigned predominantly pools Paul were Guagliardo, Carrie Pearson Schweickart, neighborhoods because County Lisa A. Assistant At- African-American Stone, They al- torneys, they would “fit in better.” C. Director of William threat- lege supervisor, physically that their direct a Cauca- whether the conduct was sian, ening humiliating. or singled unpleasant them out for chores, cleaning pool off the such as feces A panel of the Court ren deck; that he them from a work- excluded 17-page opinion dered a which reversed function; and that he re- related social and remanded for retrial as result of a peatedly “boy.” of them referred each perceived error that the instructions used judge improperly failed to 11, 1997, supervi- the direct On an isolated inci include an instruction that having van- sor accused serious, dent, extremely is insuffi unless bicycle. Although dalized his there is cient a hostile work environ to establish testimony, some difference in their all of pursuant ment to Ammerman Board of *4 that the direct appellants testified su- County, 30 Educ. Nicholas S.W.3d 793 of pervisor yelled at them and referred to (Ky.2000). The also held The “nigger.” supervisor them as direct that did not abuse her pool walked out onto the deck and in refusing proffered discretion to use the screamed, niggers my did this to “These City instructions because the claims bike, they get my pool.” out of and need appellants of the are evaluated under a pool This outburst was in front of a full of “totality of the circumstances” and the in swimmers, including parents with their terrogatories would focused too much have young Lacking authority, children. on individual incidents. This Court ac appel- supervisor the direct then fired the cepted discretionary review on both the lants, telling go them to home and that motion and cross-motion. they supervisor were not needed. His appellants called the at home and told I. Instructions they they them that not fired and were preserved its City properly The informed the returned to work. She also objection given by the to the instructions supervisor evening direct he was judge. tendered instructions The position. from fired his to the court. The presented position its City objected given to the instructions City for creat- appellants sued the allowed grounds on would be a environment and the ing hostile work single August to find that a incident on City allegations except denied all the a environment. created hostile work supervisor on the actions the direct trial, 11. At offered a 40- as The relevant instruction read follows: that included page set of instructions 1 INSTRUCTION NO. and “pervasive” of “severe” and
definitions interrogatories asking the to deter- Plaintiffs, Bran- You will find for the The trial mine if certain events occurred. Lumpkins, Jason Starks and Ken- don proffered declined the In- Anthony, under Ryan neth interrogatories struction, and instructed you if are satisfied from the they if were to find for the in of the evidence that the course that was subjected to racial harassment the Defen- employment Plaintiffs’ with Louisville, to create a pervasive enough or the Plaintiffs severe dant trial judge subjected hostile work environment. The to racial harassment were Louisville, by factors for the the Defendant also listed several others, per- or consider, through agents, the fre- its severe including among envi- enough to create work severity of the conduct and vasive quency
605 required by the Court of person language ronment reasonable incident, abusive, that an unless Appeals, hostile or and that isolated would find serious, extremely is insufficient create subjectively regarded the Plaintiffs environment, is redundant a hostile work or hostile abusive. in instructions. incorporated these when determining en- whether the work because it repetition prejudicial Such abusive, you was or vironment hostile facts or specific undue focus on causes any following fac- may consider Mankin, Geyer 984 S.W.2d See v. issues. tors: also Common (Ky.App.1998); 104 see frequency of be- a. the conduct or Callahan, (Ky. 391 wealth v. 675 S.W.2d havior; Adm’r, Ky. 1984); 282 Sharp’s Jones v. severity b. or conduct behav- (1940). Although it 731 ior; Ammerman, correct, supra, as observed in c. whether the conduct or was behavior extremely must be that isolated incidents physically humiliating; or threatening episodic, and be than such serious more OR unnecessary in language the instructions is Cooper, this situation. Cox un- d. whether conduct or behavior Cf. (Ky.1974). S.W.2d Plaintiffs’ reasonably interfered with the *5 performance. work “pervasive” The words “severe” and juror. beyond understanding any the of
not
art,
they
not terms
nor are
They are
of
It
been
it is
arcane.
has
held that
revers
tri
given by
The instructions
the
to define
are readi
ible error
terms which
al judge followed the
rule.
“bare bones”
by jurors.
McKinney
ly understood
v.
Cf.
convey
They clearly
the
enunciat
standard
Heisel,
(Ky.1997).
947
Addi
S.W.2d 32
Inc.,
ed in Harris v.
510
Systems,
Forklift
unnecessary
definitions would
tional
17, 114 S.Ct.
L.Ed.2d 295
U.S.
126
prejudicial error.
permit
(1993), that the hostile
environment
work
pervasive
discrimination must be severe or
Supplemental
II.
Instruction
episodic.
Kentucky
than
more
The
supple-
that the
appellants
The
contend
practice
ap
of “bare bones” instructions
instruction mandated
the Court
mental
plies
litigation including
rights
to all
civil
jury to
require
does
the
find
Appeals
of
concept permits
cases. The
the instruc
discriminatory con-
multiple incidents of
closing argu
to
“fleshed out” in
tions
be
to
work envi-
in order
find a hostile
duct
Kasdan,
Rogers
ment.
v.
See
objec-
They
that
the
ronment.
maintain
133 (Ky.1981). Whether a work environ
Appeals
the
is not
tion
Court of
totali
ment is hostile is determined on the
by its
solution. The
proposed
remedied
ty
juries
of the circumstances and
should
City
assert
that
the
did not
appellants
not
to
individ
encouraged
disaggregate
be
objection
it failed
its
because
to
preserve
ual
v.
circumstances.
Gener
Williams
Cf.
have ad-
an instruction that would
tender
(6th
Corp.,
al
553
Cir.
Motors
F.3d
only
that
find a
the
it could
vised
1999);
State
see
Bowman v. Shawnee
if it concluded
work environment
hostile
Cir.2000).
(6th
University,
III.Evidence
not have the authori
them because he did
ty
trial
to do so. The
correct
given
The instructions
failure of the
judge completely
ly
state the law and the
found
policy
distribute a harassment
and com
appellants presented sufficient evidence
appellants
foreclos
plaint procedure
from which a
could determine a hos
City to assert
right
tile work environment existed and thus
ed the
of the
Faragher
er
affirmative defense. See
v.
this case should be reviewed
clear
Co.,
Raton,
Meyers Chapman Printing
ror.
Boca
524 U.S.
118 S.Ct.
Cf.
(1998).
(Ky.1992).
other evi
finding jury. Trial VI. Motion for New
Indeed, multiple incidents of there were trial claims the find- supported discrimination which denying erred in its motion for new to a hostile work envi- ings 1) The following for the three reasons: supportive ronment. There was evidence *6 by improperly passion was motivated by epithets of the racial used the direct its verdict prejudice when it rendered supervisor. It has been noted in other repeated because of the use of word jurisdictions grown a white man when 2) counsel; The “nigger” by plaintiffs “boy,” to a man as grown refers black compensato not jury’s punitive, award was racially discriminatory a connota- there is attorney asked ry plaintiffs because the Quanex Corp., tion. v. 191 Jackson Cf. City message a to send the (6th Cir.1999); F.3d 647 Williamson to acceptable was not its behavior (D.D.C.1998). Shalala, F.Supp. 992 454 hap for what compensate the support sufficient evidence to There was to million pened, making reference the $21 the verdict. 3) The Department; budget of the Parks evidence jury’s grossly exceeds the Appeal Separate verdict IV.Cross — at trial. Interrogatories damages of introduced that the failed Appeals correctly of It should be noted As the Court objection to the held, contemporaneous a request by separate for make any In rejected by appeal. raised on interrogatories properly allegations was now event, arguments have merit. It not an none of these judge. the trial was abuse a racial was recita- judge epithet to refuse to The use of the discretion for the Clearly, by counsel. because the tion of the evidence proffered use the it was conceded is offensive but are to be considered under the word claims involved supervisor. direct circumstances, by that it was totality of and the inter used a by judge that it was finding rogatories placed have undue em- would
607 opin- J., by separate COOPER, dissents inflammatory should nor neither excessive J., GRAVES, who by joined ion and is not disturbed. be dissenting opinion. separate flies a argu closing The contention that COOPER. Dissenting Opinion Justice amounted plaintiff counsel for the
ment is with damages request punitive to a “bare bones” with the quarrel I have no to the was appeal merit. His out in Ken- instructing juries approach underlying purpose of with the consistent given all long as the is tucky—so The brief Kentucky Rights Act. Civil given less was Because bones. budget City’s recreation reference to case, I re- in this skeleton than whole City itself intro only arose because the spectfully dissent. evidence, and it did budget into
duced the that a hostile work law is clear in damages do with anything have not premised be claim cannot environment way. any “mere ut involving the upon one incident which epithet or racial of an ethnic terance post- The trial reviewed feelings employ in an offensive engenders complaint that trial motions and denied the Raton, 524 City Boca Faragher v. ee.” excessive. The trial the verdict was 2283, 141 775, 787, 118 S.Ct. U.S. hearing all the evi opportunity had the (1998) Rogers v. (quoting 662 L.Ed.2d to re position and was in the best dence Comm’n, Opportunity Employment Equal allegation. the verdict for such an view (5th Cir.1971)). “A re 454 F.2d supported The evidence the verdict ... opinions in these curring point inflamed there was no clear error. The (unless extremely seri isolated incidents consequence. was of no jury argument ous) discriminatory will not amount physical injury type in this of case Proof of and conditions changes in the ‘terms harm suffered unnecessary because the ” at Id. at 118 S.Ct. employment.’ and hu plaintiffs is embarrassment verbatim adopted principle 2283. We no any event the cites miliation. of Educ., Bd. in Ammerman v. authority support of its contention “[w]e and noted that (Ky.2000), excessive. the amount of the award was authority holding that a any unable to find jury miscon any is no evidence of There claim for support can single incident *7 judge properly trial denied the duct. The ”— Id. at 799. environment’ ‘hostile judgment for a not motion the 11, August that on admitted tri the verdict a new withstanding and/or Ap accused supervisor Appellants’ al. bicycle and re vandalizing his pellants of the of this Court that It is the decision “nig as on one occasion to them ferred given by an act of constituted gers,” and such the approach were consistent with As a racial discrimination/harassment. Kentucky. rule in There- “bare bones” incident, however, law, matter of fore, Appeals opinion alone, support a claim of does not standing this matter is remanded reversed and Faragher, environment. hostile work reinstate trial court directions to with 2283; at Ammer at 118 S.Ct. U.S. appellants. judgment favor of man, Unfortunately, at 799. 30 S.W.3d did not inform the instructions intel fact, and JOHNSTONE, “properly thus did not LAMBERT, C.J., v. Com the law.” Howard SCOTT, JJ., ligibly state KELLER, concur. monwealth, 177, 178 (Ky.1981). Timothy WELBORN, Appellant, Appellants
While introduced evidence from which a could believe that other inci occurred, racial dents of discrimination KENTUCKY, COMMONWEALTH OF City offered evidence that could lead a Appellee. Thus, contrary to the conclusion. No. 2002-SC-1071-MR. solely may well have decided this case 11, 1997, inci on the basis of the Supreme Kentucky. Court of I dent. do not believe use of the unde March 2005. inform “pervasive” fined term sufficed to Appel that it could not find for solely lants on the of that one inci basis
dent. respectfully I
Accordingly, dissent
would affirm the Court of
remand this for a case new before a
properly jury. instructed
GRAVES, J., joins dissenting
opinion.
Dissenting Opinion by Justice GRAVES. join Cooper’s
I Justice dissent. Howev-
er, separately I the issue write address damages. nearly An award of
of excessive
one-half million dollars for an isolated inci- grossly
dent is These en- disproportionate.
try-level wage employ- minimum seasonal proof justify
ees failed to offer sufficient damages. only actual rational
such
explanation for this bonanza is City of punish
award was intended to claims, punitive In dam-
Louisville. these fact,
ages by law. are not authorized stiff com-
rewards of this nature will offer lottery.
petition to the *8 circuit sponte
I would sua remand to the
court for a new trial.