Bank One, Kentucky, N.A. v. Murphy

52 S.W.3d 540, 2001 Ky. LEXIS 140, 86 Fair Empl. Prac. Cas. (BNA) 1422, 2001 WL 963816

• Court: Kentucky Supreme Court
• Decided: August 23, 2001
• Docket: 2000-SC-0229-DG
• Status: Published

Opinions

OPINION OF THE COURT

LAMBERT, Chief Justice.

This Court granted discretionary review to consider whether an employer defending a sexual harassment lawsuit is entitled to prevail on an affirmative defense that it has made significant efforts to correct and prevent sexual harassment in the workplace. To resolve this issue in the context of the instant case, it is necessary to determine whether the employer’s conduct with regard to prior harassing conduct by the alleged harasser against an employee other than the plaintiff creates a genuine issue of material fact as to the reasonableness of the employer’s efforts to correct and prevent the sexual harassment. A second and subsidiary issue is whether an employer commits an impermissible retaliatory act under the Kentucky Civil Rights Act by filing a declaratory judgment action before a potential plaintiff files a lawsuit and while settlement negotiations are ostensibly ongoing.

Sharlene Murphy, Appellee herein, began working for Bank One’s predecessor, Liberty National Bank, as a secretary on November 11, 1994. Both Liberty National Bank and Bank One gave Murphy a copy of their policies prohibiting sexual harassment. Bank One’s policy provides:

Employees who experience a situation they consider to have been sexual harassment should contact their supervisor immediately ... You may take your complaint of sexual harassment to the Human Resources Office if your supervisor is the subject of your complaint of sexual harassment, or if you prefer to report your complaint directly to Human Resources, for whatever reason.

Bank One’s Code of Ethics, which governs all Bank One employees, states:

You should report incidents of sexual or other harassment as soon as possible to you personnel director, employee relations area, or other senior officer within Bane One.

Murphy admits that she received copies of both Liberty National Bank One’s written policies forbidding sexual harassment and specifying the procedures for reporting alleged sexual harassment.

In October 1995, Murphy began working in the Facilities Management area of the bank under the supervision of Vivian Kor-phage. In January 1996, she came under the direct supervision of William Gaunt, the alleged perpetrator of the sexual harassment. Gaunt was a bank officer responsible for managing the bank’s real estate properties.

The facts giving rise to this lawsuit are hotly disputed by the parties, and thus the following text merely represents an effort to lay open the crucial incidents at issue and not to resolve them one way or the other. At trial, all relevant evidence will be before the jury for its use in determining whether Murphy was a victim of sexual harassment. According to Murphy’s deposition testimony, soon after Murphy began working under Gaunt, she went to his office to discuss problems she was having with a co-worker. During this conversation, Gaunt reached out and held Murphy’s hand. She did not perceive this conduct as offensive at the time, believing only that he was being supportive of her. In late January or early February 1996, she initiated a hug with Gaunt in response to a compliment he had paid her.

Around the end of February 1996, Gaunt made comments to Murphy about Kor-phage’s sex life and stated that Korphage had slept her way to the top. At the end of March 1996, Gaunt kissed Murphy on the bps for the first time. By this time, Gaunt had instituted a daily routine of hugging. During one of these daily hugs, Gaunt kissed Murphy and told her that she was the best thing that had happened to him, and that between her and another co-worker, Murphy was the cream of the crop. When Murphy expressed her discomfort, Gaunt told her that it was better to be kissing cousins than enemies.

According to Murphy, Gaunt’s behavior remained the same after the first kissing episode. Along with the daily hug, there was inappropriate touching during the hugs, sexually explicit remarks by Gaunt, and several more kissing incidents. While Murphy tried to avoid Gaunt in an effort to evade the daily hug routine, she never refused his requests for hugs nor did she report the incidents or make any complaint.

Murphy contends that she did not perceive Gaunt’s behavior as sexual harassment until the first kissing incident at the end of March 1996. Gaunt’s allegedly offensive conduct continued for three more months, until June 1996. According to Murphy’s deposition testimony, she did not report the alleged harassment immediately because she wanted to try to handle the situation herself. Yet, on June 19, 1996, Murphy told Korphage about Gaunt’s behavior. Korphage told Murphy that she likewise had been sexually harassed by Gaunt, and she wished she had handled the matter differently. Korphage encouraged Murphy to go directly to Human Resources and report Gaunt.

Murphy reported the alleged harassment to Joyce Tingle in the bank’s Human Resources Department that same day. According to Tingle’s deposition testimony, the bank investigated Murphy’s allegations immediately. Murphy was allowed a paid leave of absence during the investigation, because she had stated that she was upset and nervous about encountering Gaunt after having lodged her complaint. Seven business days after the report, on Friday, June 28, 1996, 31-year-employee Gaunt resigned in lieu of termination for failing to comply with the bank’s Code of Ethics.¹ Murphy acknowledged that she was never again subjected to harassment by Gaunt or any other bank employee.

Murphy returned to work on July 1, 1996, but took medical leave from July 16, 1996 until October 9, 1996. Murphy again left on medical leave from October 22,1996 until January 30, 1997, at which time she tendered her resignation.

Despite the bank’s rapid response to Murphy’s report and the absence of any adverse tangible employment action taken against her, on July 15, 1996, by counsel she demanded $250,000 from the bank. On August 6, 1996, she and her counsel met with the bank’s counsel and threatened to file a sexual harassment lawsuit absent a satisfactory monetary settlement. The essence of her complaint was that the bank had failed to take appropriate action in 1995 when Korphage reported Gaunt for sexually inappropriate behavior. At that time, Korphage had refused to file a formal complaint against Gaunt and had asked to remain anonymous. Korphage also had refused to cooperate with any investigation into Gaunt’s alleged misconduct and had stated that she did not want any adverse action taken against him. Korphage only reported Gaunt’s allegedly inappropriate conduct because a new supervisory position was opening at the bank, and she did not want to supervise Gaunt or vice versa.

At the time of the Korphage report, the bank consulted outside counsel, who advised that, in consideration of the nature of the allegations and Korphage’s refusal to cooperate further, the bank should inform Gaunt of the allegations, give him a copy of the bank’s sexual harassment policy, and inform him that the policy would be enforced. According to the affidavit of Gaunt’s supervisor, Gilbert Darnell, the bank informed Gaunt that a female employee had expressed concern about the propriety of his behavior. The importance of the bank’s anti-harassment policy was emphasized, and Gaunt was given another copy of the policy and instructed to read it. The bank told Gaunt that its anti-harassment policy would be strictly enforced and that any violation would be addressed with appropriate disciplinary action, up to and including dismissal. Korphage had no further problems with Gaunt, but later told her story in support of Murphy.

On August 9, 1996, the bank filed a declaratory judgment action in the United States District Court for the Western District of Kentucky, seeking a declaration of rights with respect to the propriety of the bank’s actions under Burlington Industries, Inc. v. Ellerth² and Faragher v. City of Boca Raton.3 According to these cases, employers who take reasonable measures to protect employees against sexual harassment are provided an affirmative defense. The bank did not seek money damages and it expressly disavowed any claim for attorney fees in conjunction with its claim. Murphy countered, within only a few hours, by filing this sexual harassment lawsuit in Jefferson Circuit Court, to which forum the federal court ultimately deferred. The trial court granted summary judgment in favor of the bank. The trial court also denied Murphy’s motion to amend her complaint to allege that the bank and its attorneys had engaged in retaliatory conduct in violation of KRS 344.280 by filing the federal declaratory judgment action. A split Court of Appeals panel reversed and remanded for further proceedings.

The bank now contends that it was properly entitled to an affirmative defense because it had taken reasonable measures to prevent and correct sexual harassment such as that alleged by Murphy. This affirmative defense was approved by the United States Supreme Court in Burlington Industries, Inc. v. Ellerth4 and Faragher v. City of Boca Raton,5 where the two elements of the defense were described as follows:

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages ... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.⁶

(emphasis added). In these cases, the United States Supreme Court discussed the type of proof required for an employer to establish the affirmative defense, stating,

While proof that an employer has promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law the need for a stated policy suitable to the employment circumstance may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense.⁷

This Court interprets KRS 344.040 in consonance with federal anti-discrimination law.⁸ Thus, the Ellerth/Faragher affirmative defense is available to employers facing vicarious liability for sexual harassment under KRS 344.040.⁹

The bank contends that both elements of the Ellerth/Faragher affirmative defense were established by unrebutted CR 56 evidence. The bank maintains that it met the requirements of the first element, which focuses on the employer’s conduct, because it implemented an anti-harassment policy, provided every employee a copy of the policy, and made reasonable efforts to train all employees regarding such policy. Murphy admitted in her deposition testimony that she was aware of the policy and of her obligation to report any improper activities. Also, the bank maintains that it exercised reasonable care to prevent and promptly correct the alleged harassment. It immediately investigated Murphy’s complaint and within seven business days caused Gaunt, an employee of thirty-one years, to submit his resignation in lieu of termination. Murphy admitted that she was not subjected to any further sexual harassment from Gaunt or any other bank employee following Gaunt’s forced resignation.

Murphy contends, however, that the bank was aware of Gaunt’s propensity to engage in sexually harassing conduct by virtue of the alleged incident involving Korphage about three years earlier and that the bank failed to take proper corrective action at that time, thereby exposing Murphy to a continuation of such conduct. Murphy relies on Kim Hirase-Doi v. U.S. Communications, Inc.10 for the proposition that an employer may be put on notice of an employee’s sexual harassing conduct “if [the employer] learns that the perpetrator has practiced widespread sexual harassment in the office place, even though [the employer] may not have known that this particular plaintiff was one of the perpetrator’s victims.” ¹¹ We accept this view from the Kim Hirase-Doi case as a proper statement of Kentucky law, and that brings us to the heart of the matter.

For purposes of this analysis and to determine whether there is an issue of fact sufficient to withstand summary judgment, we take it as true that acts of harassment were committed by Gaunt against Kor-phage. We also accept as true that Kor-phage reported the acts to proper human resources personnel, but instructed them to refrain from using her name and insisted that she would not co-operate in an investigation. The bank insists that its representative confronted Gaunt with the Korphage allegations, albeit without identifying Korphage out of respect for her request, and furnished Gaunt with a copy of the bank’s anti-sexual harassment procedures and demanded his obedience thereto. An affidavit to this effect is of record. When Gaunt testified by deposition, however, he denied having been confronted with the facts of the Korphage incident by name, and the bank concedes as much. Notably, however, in his deposition Gaunt was not asked whether he had been apprized generally of such a complaint without disclosure of the identity of the complainant, or the details of the allegations. In other words, Gaunt denied knowledge of the Korphage allegations, yet he was not asked whether he had been informed in more general terms about those allegations against him. Thus, the evidence does not converge in a manner that permits a confident answer to this critical question. The record is simply incomplete as to whether the bank confronted Gaunt with the details of the Korphage allegations; and, if such was brought to his attention, whether it did so in a reasonable manner to prevent and correct the misconduct.

A party moving for summary judgment bears the burden of demonstrating entitlement to such relief.¹² When the record is incomplete and the Court would be required to draw inferences or find facts, summary judgment is inappropriate. This Court has long applied a stringent standard to motions for summary judgment, stating that the motion should not be granted unless it appears to be “impossible” for the non-moving party to prevail at trial.¹³ Our recent decision in Roethke v. Pan American Life¹⁴ is illustrative of our view.

While the bank’s response to the Murphy incident appears unassailable, we believe an issue of fact has been presented with respect to whether the bank confronted Gaunt with the essential facts related by Korphage and properly demanded corrective action. A resolution of this factual dispute is necessary to determine whether the bank exercised reasonable care to prevent sexual harassment. An answer to these questions will answer the comprehensive question of whether the bank has satisfied its burden under the Ellerth/Faragher test.¹⁵

A separate issue is whether the bank violated KRS 344.280 when it filed a declaratory judgment action in the U.S. District Court seeking a determination that it was entitled to prevail on its affirmative defenses under the Ellerth and Faragher cases. Prior to the commencement of litigation, counsel for Murphy contacted the bank and notified it of the claim. Counsel for the bank invited a settlement offer and such an offer was tendered. Thereafter, the parties and counsel met for a negotiating session at which Murphy was interrogated by counsel for the bank. A few days after the meeting, and while settlement negotiations were apparently ongoing, the bank filed suit in federal seeking a declaration of rights on its affirmative defense. The complaint sought only a declaration of rights; it sought no damages or attorneys’ fees whatsoever.

Murphy contends that filing a suit while settlement negotiations were ongoing amounts to a violation of KRS 344.280 and is retaliatory in nature. We disagree. While it may amount to bad manners or may appear to some to be unprofessional, such conduct does not constitute a violation of the statute nor is it tortious. Declaratory judgment actions are widely utilized to establish certain fundamental rights in ongoing disputes. KRS 418.045 contains an extensive list of subjects and transactions upon which declaratory relief is available. It would be unwise for this Court to introduce limitations upon the rights of parties to seek declaratory relief. Accordingly, the trial court’s denial of Murphy’s motion to amend her complaint to add a retaliation claim was proper.

Based upon the foregoing reasons, the decision of the Court of Appeals is affirmed in part and reversed in part, and this action is remanded to the trial court for further consistent proceedings.

COOPER, GRAVES, JOHNSTONE, and WINTERSHEIMER, JJ., concur. KELLER, J., files a separate opinion concurring in part and dissenting in part, in which STUMBO, J., joins.

1 . Bank One did not conclude that Gaunt had in fact engaged in sexual harassment within the meaning of KRS 344.040. Rather, it concluded that, based upon uncontested evidence, including Gaunt’s admission that he had engaged in consensual hugs and kisses with an administrative assistant, Gaunt’s conduct violated the Code of Ethics for bank officers.

2 . 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

3 . 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

4 . 524 U.S. 742, 118 S.Ct. 2257, 118 S.Ct. 2257 (1998).

⁵

6 . Ellerth, 524 U.S. at 765, 118 S.Ct 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275.

7 . Id.

8 . Meyers v. Chapman Printing, Ky., 840 S.W.2d 814, 821 (1992); Ammerman v. Board of Education of Nicholas County, Kentucky, Ky., 30 S.W.3d 793, 797 (2000).

9 . Ellerth, 524 U.S. at 745, 118 S.Ct. at 2261, 141 L.Ed.2d at 655; Faragher, 524 U.S. at 777, 118 S.Ct. at 2278-2279, 141 L.Ed.2d at 689 (an "employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee”).

10 . 61 F.3d 777 (10th Cir.1995).

11 . Id. at 783.

12 . See, e.g., Hubble v. Johnson, Ky., 841 S.W.2d 169, 171 (1992).

13 . Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).

14 . Ky., 30 S.W.3d 128, 133 (2000).

15 . Our failure to address the second prong of the Ellerth/Faragher test, i.e. whether the plaintifPempIoyee unreasonably failed to take advantage of any preventative or corrective opportunities, should not be regarded as a resolution of this issue in Murphy’s favor. If the bank chooses, it may contest this issue at trial Our determination that an issue of fact exists with respect to the first prong of the test renders further elaboration unnecessary.