George Ann PALMER, Appellant, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Grand Lodge, International Association of Machinists and Aerospace Workers District Lodge 27, International Association of Machinists and Aerospace Workers Local Lodge 681, International Association of Machinists and Aerospace Workers Local Lodge 2409, International Association of Machinists and Aerospace Workers Local Lodge 1404, International Association of Machinists and Aerospace Workers Local Lodge 619, International Association of Machinists and Aerospace Workers Local Lodge 664, International Association of Machinists and Aerospace Workers Local Lodge 2118, Ronald B. Harsh, Individually, James B. Hinton, Individually, Appellees.
No. 93-SC-359-DG.
Supreme Court of Kentucky.
May 26, 1994.
Rehearing Denied Sept. 29, 1994.
117-121
Respectfully, I must dissent. I concur fully in the dissent prepared by Chief Justice Stephens, but I also would hold that the prosecution was permitted to improperly introduce evidence for the sole purpose of eliciting sympathy for the victim, thereby denying the appellant a fair trial and objective sentencing. Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988); Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984); and Morris v. Commonwealth, Ky., 766 S.W.2d 58 (1989).
STEPHENS, C.J., joins in this dissent.
L. Kent Robinson, James K. Stayton, Robinson & Longmeyer, and William N. Haliday, Louisville, for appellant.
WINTERSHEIMER, Justice.
This appeal is from a decision of the Court of Appeals which affirmed a summary judgment of the circuit court holding that none of the appellees met the jurisdictional requirement of eight or more employees in twenty calendar weeks so as to be defined as an “employer” pursuant to
The principal issue is whether the summary judgment on the charge of unlawful discrimination was proper because none of the defendants qualify as an employer as defined by statute. The other issue is whether summary judgment was proper on the charge of unlawful retaliation because Palmer has not stated a cause of action so as to be able to recover damages for unlawful retaliation.
Palmer brought a discrimination suit pursuant to
Palmer was employed as a secretary in District Lodge 27 of the IAM from 1964 until her termination in 1990. She was turned down for a position as a full time organizer in 1989, and filed a complaint alleging discrimination on the basis of sex in violation of
The circuit court entered summary judgment dismissing her complaint and the Court of Appeals affirmed. This Court granted discretionary review because statutory construction issues of first impression are involved.
The Court of Appeals properly sustained the decision of the circuit court to grant summary judgment against Palmer on the charge of unlawful discrimination because none of the defendants qualify as an employer pursuant to the definition provided in
There are no Kentucky cases that directly define the term “employer” provided in the statute.
A review of the cases indicates that the determination of what constitutes an employer is on a case-by-case basis and that the four factors noted above are applied to reach a solution. The appellees here do not necessarily fit into either category, but after applying the four-pronged test, we agree with the Court of Appeals that the IAM, its district lodges and its local lodges are not one employer as contemplated by
In this case, the operations of the IAM, the district lodges and the local lodges are distinct. Each unit separately conducts its daily operations and finances. There is a separate treasury for each local union and each unit is required to file separate employee and tax forms with the appropriate federal revenue department. Each entity also has its own facilities and operations. The management of each union is fundamentally different. Although the IAM has some control over its district and local lodges, can exercise authority in emergency situations, and in some instances has final approval over certain matters, the employees and officers are different and control the day-to-day operations of the local management.
Evans v. McDonald‘s Corp., supra, indicates that although McDonald‘s could control many aspects of the operation, it is not unusual for a franchise to be subject to those types of control. That alone was not sufficient to consider McDonald‘s, together with the franchisee as the plaintiff‘s employer.
The district and local lodges also have distinct powers over labor relations even though the IAM has final authority over strikes and some other related matters. The district and local lodges can hire and fire their own employees and the IAM constitution allows the district lodges to set up the minimum wage scale in their localities. The IAM constitution specifically states that each district or local lodge shall establish a sufficient number of business representatives so that servicing can be accomplished with a minimum of IAM assistance. The local and district lodges issue the paychecks to their own employees and Palmer testified that she worked for District Lodge 27 and not the IAM. She stated that she did not receive a paycheck from IAM.
We have considered the authorities cited by Palmer and find them all to be scholarly but with no persuasive effect in this case. In particular, we have determined that EEOC v. Arlington Transit Mix, Inc., 734 F.Supp. 804 (E.D. Mich. 1990) and Boyd v. James S. Hayes Living Health Care Agency, Inc., 671 F.Supp. 1155 (W.D. Tenn. 1987), are distinguishable upon their individual facts and not applicable to this case. Accordingly, neither District 27 nor the individual defendants qualifies as an employer under the statute.
Civil Rule 56.03 provides that a summary judgment should be rendered if the pleadings and all relevant discovery indicate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The record must be considered by the circuit judge in the light most favorable to the party opposing the motion and all doubts are to be resolved in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991). The trial court must grant a motion for summary judgment only if it appears that it would be impossible for the respondent to produce evidence warranting a favorable judgment against the movant. Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985).
In this case, there was no genuine issue of material fact regarding the organization of the IAM, the district lodge or the local lodges. The circuit court properly found as a matter of law that the entities were not one employer, and that District 27 was not an employer pursuant to the statute. Therefore, the decision of the Court of Appeals in that respect is affirmed.
The final question is whether the Court of Appeals committed reversible error when it held that Palmer did not have a cause of action against two individuals who, in alleged violation of
Such a position is in conflict with
In view of the fact that the decision of the Court of Appeals in this case conflicts with the existing case of Mountain Clay, supra, and fails to recognize the provision for civil remedies contained in
It is the holding of this Court that the Court of Appeals properly sustained the decision to grant summary judgment on the charge of unlawful discrimination because none of the defendants qualify as an employer pursuant to the definition of
REYNOLDS, J., concurs in the entire opinion.
STEPHENS, C.J., and SPAIN, J., concur in opinion except for the portion which remands the claim against Harsh and Hinton individually to the circuit court for further proceedings. They would have affirmed the trial court‘s summary judgment in their favor.
LAMBERT, LEIBSON and STUMBO, JJ., concur in part two of the opinion, but dissent from part one.
LAMBERT, J., dissents in part and concurs in part by separate opinion in which LEIBSON and STUMBO, JJ., join.
LAMBERT, Justice, dissenting in part and concurring in part.
I dissent from that portion of the majority opinion which holds that the district and local lodges are distinct and separate employers so as to prevent aggregating the number of their employees to satisfy the statutory requirement. From the evidence and as revealed in the majority opinion, the various entities had extensive common management and financial control, all were governed by a single constitution, funds flowed freely from one to the other, all employees were eligible to participate in a single pension plan, and in some instances, employee salary costs were shared. In my view, this is ample to satisfy the four-part test enunciated in Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977), and Evans v. McDonald‘s Corp., 936 F.2d 1087 (10th Cir. 1991), decisions relied upon by the majority.
Rather than being separate and distinct as the majority contends, the relationship of the appellees more nearly resembles divisions within a corporation. The statute at issue here is remedial and states as its purpose “To provide for execution within the state of the policies embodied in the Federal Civil Rights Act of 1964 as amended....” It further provides as its purpose “To safeguard all individuals within the state from discrimination because of ... sex....”
Except as stated herein, I concur with the majority opinion.
LEIBSON and STUMBO, JJ., join in this opinion.