RENDERED: APRIL 28, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0466-MR
EMILY CLEMENTS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 18-CI-001151
STEAK ‘N SHAKE, INC.; CINDY BURDETTE; AND RODNEY TODD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND MCNEILL, JUDGES.
THOMPSON, CHIEF JUDGE: Emily Clements (“Appellant”) appeals from an
order of the Jefferson Circuit Court granting summary judgment in favor of Steak
‘n Shake, Inc. and Cindy Burdette (“Appellees”) in her action alleging that she was
subjected to a hostile work environment and retaliatory discharge. Appellant
argues that the circuit court erred in applying a common law tort theory to a
statutory claim; in dismissing the claim of retaliatory discharge; and that Steak ‘n Shake’s destruction of a video showing an alleged sexual assault should result in a
judgment against Steak ‘n Shake on all claims. After careful review, we find no
error and affirm the opinion and order granting summary judgment.
FACTS AND PROCEDURAL HISTORY1
In 2017, Appellant was a 16-year-old, hourly employee at a Steak ‘n
Shake restaurant located on Dixie Highway in Jefferson County, Kentucky. Her
duties included taking customer orders, serving food, refilling drinks, and cleaning
her work area. Rodney Todd was employed at the same Steak ‘n Shake restaurant
as a grill cook. He worked the back half of the restaurant and helped with the
drive-through.
According to Appellant, on December 23, 2017, she was in the
employee breakroom at the restaurant when Todd entered the room. This was only
the second time that she had any interaction with him. According to Appellant,
Todd approached her, made a vulgar, highly inappropriate sexual comment to her,
and then grabbed her in the area of her buttocks and vagina. Appellant would later
state in her deposition that she was shocked and offended by what Todd did, and
told two other servers named Emily and Taylor what had occurred. According to
1 Appellant’s statement of the case, as required by Kentucky Rules of Appellate Procedure (“RAP”) 32(A)(3), consists solely of Appellant’s affidavit. Our recitation of the facts is based on Appellant’s affidavit; the affidavit of Steak ‘n Shake employee relations manager, Rebekah Nevin; and other portions of the record.
-2- Appellant, both servers told Appellant that she should tell a manager what
happened.
Appellant went on to state that the incident caused her to forget to
submit a customer’s order. According to Appellant, this resulted in Steak ‘n Shake
employee Cindy Burdette berating Appellant in front of customers in the
restaurant. In an affidavit, Steak ‘n Shake employee relations manager, Rebekah
Nevin, stated that Burdette was a server who occasionally worked a temporary
shift lead when no manager was present. Appellant stated that one of the guests
told Burdette that Burdette’s treatment of Appellant was cruel, unkind, and
unacceptable. Appellant said that Burdette’s response to the customer was to mind
her own business.
After Burdette approached Appellant about failing to submit the
customer’s order, Appellant informed Burdette about the incident involving Todd.
According to Appellant, Burdette stated that Todd was important to the restaurant
and could lose his job based on Appellant’s accusation.
The customer who objected to Burdette’s treatment of Appellant
exited the building and spoke with Appellant’s father, Scott Tyler, who was
waiting to pick up Appellant. According to Appellant, Tyler told Appellant that
the customer was concerned that Appellant was emotionally okay and that Tyler
should go in the restaurant and talk to Appellant. Tyler entered the dining area,
-3- and told Appellant to get her things and leave because she was not going to work
there any longer if Burdette was going to berate her like that. Appellant told her
father that Burdette had already terminated Appellant’s employment for talking to
the customer about work-related issues. When asked in deposition whether
Burdette said, “you’re terminated,” Appellant answered “yes.” Appellant stated
that she had already been terminated before her father entered the restaurant.
When Tyler confronted Burdette about berating Appellant in front of customers,
Appellant stated that Burdette cursed at him, told him he was fat, and stated that it
was none of his business.
When Appellant and Tyler were in his vehicle, Appellant told him
about the incident with Todd. Tyler became very upset and started yelling at a
group of employees who were outside the restaurant. He told them that he and the
customers had called the police. Two police officers arrived shortly thereafter and
interviewed several individuals present about the unwanted touching by Todd.
Appellant told the police that he touched her between her buttocks and vagina.
The officers subsequently produced a report which is part of the record. No
criminal charges were filed.
That same day, Burdette called Steak ‘n Shake general manager Alex
Potter and informed him of Appellant’s claim of sexual harassment. According to
Nevin’s affidavit, Potter instructed Burdette to document the statements she
-4- obtained about the incident and give them to Potter. The following day, Tyler
called the Steak ‘n Shake hotline to make a complaint about the way his daughter
was treated. According to Nevin, Tyler stated that Appellant no longer worked for
Steak ‘n Shake.
On December 24, 2017, district manager Mike Rauls called Tyler,
requested any text messages between Todd and Appellant, and told Tyler that
Steak ‘n Shake would take appropriate action. After Rauls received the text
messages from Tyler, he instructed Potter to terminate Todd’s employment. Rauls
told Potter to inform Appellant of Todd’s termination, and to ask Appellant if she
would return to work. Potter apparently was unable to get in contact with
Appellant. Potter then told Tyler of Todd’s termination and Tyler said that his
daughter would not be returning to work at Steak ‘n Shake.
On February 23, 2018, Tyler filed a complaint in Jefferson Circuit
Court on behalf of Appellant against Steak ‘n Shake, Burdette, and Todd. The
complaint, and two subsequent amended complaints,2 alleged that Steak ‘n Shake
improperly terminated Appellant’s employment in response to her claim of sexual
harassment, that Steak ‘n Shake destroyed video evidence of the assault, and that
Steak ‘n Shake attempted to silence Appellant by telling her that she could have
2 Tyler was the plaintiff on the original complaint. Having reached the age of majority, Appellant was the plaintiff on the first and second amended complaints filed in February and October, 2021, respectively.
-5- her job back if she dropped the matter. The second amended complaint asserted
claims of sexual harassment, battery, and unlawful retaliation. The sexual
harassment/hostile work environment claim and improper retaliation claim were
grounded on Kentucky Revised Statutes (“KRS”) Chapter 344, i.e., the Kentucky
Civil Rights Act or “KCRA.”
Steak ‘n Shake and Burdette later moved for summary judgment. In
support of the motion, they asserted that Steak ‘n Shake could not be held
vicariously liable for Todd’s alleged intentional tort, as Todd’s actions were clearly
not performed within the scope of his employment. Second, they argued that
Appellant could not prove the existence of a hostile work environment, as Steak ‘n
Shake terminated Todd’s employment within four days of the incident. They
argued that they were entitled to summary judgment on Appellant’s retaliation
claim, as Appellant quit her job and suffered no adverse employment action. In
addition, Burdette argued that the harassment claim must fail because there was no
individual liability under the KCRA.
On March 31, 2022, the Jefferson Circuit Court entered an order
granting the motion of Steak ‘n Shake and Burdette for summary judgment. It
determined that Kentucky case law expressly holds that an employer is not
vicariously liable for an employee’s intentional tort of a sexual nature which is
outside the scope of employment. After citing the elements of a KCRA, the court
-6- determined that Appellant could not satisfy the element requiring proof that Steak
‘n Shake failed to take reasonable care to prevent and correct the sexually
harassing behavior. It based this conclusion on the fact that Steak ‘n Shake
immediately investigated Appellant’s claim and terminated Todd’s employment
within four days of the incident. The court went on to conclude that the claim of
retaliation must fail because Burdette did not have the authority to fire Appellant,
and because Appellant quit immediately after the incident. This appeal followed.
STANDARD OF REVIEW
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show 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.” Kentucky Rules of Civil Procedure (“CR”) 56.03. “The record must be
viewed in a light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary
judgment should be granted only if it appears impossible that the nonmoving party
will be able to produce evidence at trial warranting a judgment in his favor. Id.
“Even though a trial court may believe the party opposing the motion may not
succeed at trial, it should not render a summary judgment if there is any issue of
-7- material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
ARGUMENTS AND ANALYSIS
Appellant argues that the Jefferson Circuit Court committed reversible
error in granting Appellees’ motion for summary judgment. She asserts that the
circuit court erred in applying a common law tort theory to her statutory civil rights
claim alleging a hostile work environment; that the court erred in dismissing the
retaliation claim; and, that Steak ‘n Shake’s alleged destruction of a video of the
incident entitled her “to dismissal of Appellees defenses pertaining to Appellant’s
claim of a hostile work environment.” The focus of her claim of error is her
contention that she established a prima facie claim under the KCRA sufficient to
overcome the motion of Steak n’ Shake and Burdette for summary judgment.
Appellant has not complied with RAP 32(A)(4),3 which requires,
[a]n argument conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.
3 Formerly Kentucky Rules of Civil Procedure 76.12(4)(c)(v).
-8- Appellant’s argument section of the brief does not contain a statement
at the beginning with reference to the record showing whether each issue was
properly preserved for review and, if so, in what manner.
“A brief may be stricken for failure to substantially comply with the
requirements of these rules.” RAP 31(H)(1). The rule requiring an argument
section including a statement of preservation is a requirement of RAP 32
encompassed by RAP 31(H)(1).
When a party fails to abide by the Rules of Appellate Procedure, we
may choose “(1) to ignore the deficiency and proceed with the review; (2) to strike
the brief or its offending portions . . . ; or (3) to review the issues raised in the brief
for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App.
2010) (citation omitted); see also Ford v. Commonwealth, 628 S.W.3d 147, 153-55
(Ky. 2021). Though it does not comply with RAP 32(A)(4), Appellant did address
preservation in a footnote. Per Hallis, we will ignore the deficiency and proceed
with the review.
SEXUAL HARASSMENT/HOSTILE WORK ENVIRONMENT
Under KRS 344.040, it is unlawful for an employer, on the basis of sex, to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment . . . [or] to limit, segregate, or classify employees in any way which would . . . tend to deprive an individual of employment opportunities or otherwise adversely affect status as an employee. In other words, consistent with Title VII of the 1964 Federal
-9- Civil Rights Act, 42 U.S.C.[4] § 2000e-2(a)(1), the KCRA prohibits sexual harassment in the workplace that creates hostile or abusive work environment. The Kentucky Supreme Court has made clear that since the provisions of KCRA are virtually identical to those of the Federal act[,] . . . in this particular area we must consider the way the Federal act has been interpreted. In addition, an interpretation given to a federal statute by the United States Supreme Court is binding on state courts, any state law, decision, or rule to the contrary notwithstanding.
To establish successfully a prima facie showing of a cause of action predicated upon hostile work environment based on sex, a plaintiff must demonstrate that (1) she is a member of a protected class, (2) she was subjected to unwelcome sexual harassment, (3) the harassment was based on her sex, (4) the harassment created a hostile work environment, and that (5) the employer is vicariously liable.
Becker v. Saber Management-Kentucky, LLC, No. 2009-CA-000089-MR, 2009
WL 4060859, at *3-4 (Ky. App. Nov. 25, 2009) (internal quotation marks and
citations omitted). These elements apply to a claim of co-worker sexual
harassment. See Grego v. Meijer, Inc., 239 F.Supp.2d 676 (W.D. Ky. 2002).
When viewing the record in a light most favorable to Appellant per
Steelvest, supra, we conclude that evidence exists sufficient to demonstrate the
existence of the first three elements of Becker. Appellant is a member of a
protected class per KRS 344.040(1), she was subjected to sexual harassment, and
the harassment was based on her sex.
4 United States Code.
-10- As to whether the fourth element, i.e., the creation of a hostile
environment, may be proven, “the court must consider all of the circumstances,
including the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s performance.” Thornton v. Federal
Express Corp., 530 F.3d 451, 455 (6th Cir. 2008) (internal quotation marks and
citations omitted). Appellant’s claim of an unwanted touching between her
buttocks and vagina, if true, is clearly “physically threatening or humiliating” per
Thornton.
The fifth element to be proven, if the matter were to proceed to trial, is
whether Steak ‘n Shake is vicariously liable for Todd’s acts. In order to hold an
employer accountable for an employee’s sexual harassment of a co-worker,
[p]laintiff must show that Defendant knew or should have known of the sexual harassment and failed to implement prompt and appropriate corrective action. When an employer responds to charges of co- worker sexual harassment, the employer can be liable only if its response manifests indifference or unreasonableness in light of the fact the employer knew or should have known. The act of discrimination by the employer in such a case is not the harassment, but rather the inappropriate response to the charges of harassment.
Grego, 239 F.Supp.2d at 681 (internal quotation marks, citations, and footnote
omitted).
-11- The record demonstrates that Steak ‘n Shake conducted a pre-
employment background check of Todd and implemented proactive anti-
harassment policies. When notified of Appellant’s claim that Todd touched her in
an unwanted, sexual manner accompanied by vulgar language, Burdette called
Steak ‘n Shake general manager Alex Potter and informed him of Appellant’s
claim. Potter informed district manager Mike Rauls, who called Tyler. Rauls
conducted a brief investigation and then instructed Potter to terminate Todd’s
employment. These actions occurred within 4 days of the incident, and during a
timeframe which included the Christmas holiday. Even when considered in a light
most favorable to Appellant, these facts do not evince an indifferent or
unreasonable response by Steak ‘n Shake sufficient to establish Steak ‘n Shake’s
vicarious liability for Todd’s acts. Since Appellant cannot prove an essential
element of her sexual harassment claim, Steak ‘n Shake is entitled to summary
judgment on this issue. The Jefferson Circuit Court properly so concluded.
RETALIATION
Appellant next argues that the Jefferson Circuit Court erred in
dismissing her retaliation claim. She asserts that after informing Burdette of
Todd’s action, Burdette improperly terminated Appellant’s employment in
retaliation of the claim. Citing Brooks v. Lexington-Fayette Urban County
Housing Authority, 132 S.W.3d 790 (Ky. 2004), Appellant argues that in order to
-12- overcome Steak ‘n Shake’s motion for summary judgment on this issue, she must
only demonstrate that: 1) Steak ‘n Shake was aware of Appellant’s complaint and
2) there was a close, temporal relationship between the protected activity and the
adverse action. Appellant contends that the record clearly reveals that Steak ‘n
Shake management was aware of the complaint and that there was a close,
temporal relationship between Appellant’s complaint and the termination of her
employment. On this basis, Appellant argues that the circuit court erred in
granting Steak ‘n Shake’s motion for summary judgment on this issue.
KRS 344.280(1) prohibits an employer’s retaliatory response to an employee’s report or complaint about conduct which violates the KCRA. Interpreting unlawful retaliation under the KCRA consistent with the interpretation of unlawful retaliation under federal law, the Kentucky Supreme Court has set forth the elements of a prima facie case of retaliation under KRS 344.280 as follows: (1) an employee was engaged in a protected activity; (2) the exercise of the employee’s civil rights was known by the employer; (3) the employer thereafter took an employment action adverse to the employee; and (4) a causal connection existed between the protected activity and the adverse employment action.
Once a prima facie case of retaliation is established, the employer must articulate some legitimate, nondiscriminatory reason for its actions. If such a legitimate reason is articulated, the employee's burden is to “demonstrate that the proffered reason was not the true reason for the employment decision. In order to withstand summary judgment on the issue of pretext, the employee must produce evidence that either the proffered reason: (1) has no basis in fact; (2) did not
-13- actually motivate the adverse employment action; or (3) was insufficient to warrant the adverse action.
Becker, 2009 WL 4060859, at *7 (internal quotation marks and citations omitted).
In her second amended complaint and deposition, Appellant alleged
that Burdette fired her in retaliation for her complaint and for calling the police.
When asked in deposition if Burdette used the words “you’re terminated” shortly
after Appellant’s complaint, Appellant responded in the affirmative. The question
for our consideration is whether the record, when viewed in a light most favorable
to Appellant, satisfies elements (3) and (4). That is, whether Steak ‘n Shake took
adverse employment action (i.e., fired Appellant), and whether a causal connection
existed between Appellant’s claim of sexual harassment and the adverse action.
At first blush, Appellant’s deposition would appear to satisfy elements
(3) and (4), at least in the context of a summary judgment motion. Steak ‘n Shake,
however, asserts that Burdette was merely a server who worked as a temporary
shift lead when no manager was on site. Burdette, it argues, had no authority make
human resources decisions nor to fire Appellant.
Further, Steak ‘n Shake notes that on the evening of the incident,
Appellant’s father told Burdette that his daughter would not return to work. On
December 24, 2017, Tyler also called the Steak ‘n Shake employee hotline and
said that Appellant would not be returning to work. In addition, Rauls instructed
-14- Potter to inquire if Appellant would return to work. According to the record,
Potter did not hear back from Appellant.
Given the totality of the record, we conclude that Appellant did not
suffer adverse employment action as a result of her complaint. The uncontroverted
deposition testimony is that Burdette had no authority to hire or fire employees.
Tyler repeatedly stated that Appellant would not be returning to work – a wholly
understandable response given what Appellant told him about the incident.
Finally, Steak ‘n Shake management, who did have the authority to hire and fire
employees, sought to have Appellant continue with her employment. We conclude
therefrom that, even when the record is viewed in a light most favorable to
Appellant, she could not prove essential elements of her retaliation claim if the
matter proceeded to trial. We find no error.
SPOLIATION
Lastly, Appellant argues that Steak ‘n Shake destroyed a closed-
circuit video of the incident, and that this destruction or spoliation should result in
sanctions including dismissal of Appellees’ defenses. She asserts that in response
to the claim of spoliation, Steak ‘n Shake’s counsel responded via email that no
spoliation occurred, and that any video of the incident would have been recorded
over in the normal course of business.
-15- Appellant does not cite to any portion of the record demonstrating that
a video of the incident existed, nor that any spoliation occurred. A series of emails
appended to Appellant’s written argument, which purports to be a conversation
between Appellant’s counsel and Steak ‘n Shake’s counsel, is not marked as an
exhibit and Appellant does not cite to it as part of the record. Arguendo, even if a
video of the incident existed and was destroyed, which the record does not
demonstrate, Appellant could not prevail on her sexual harassment and retaliation
claims for the reasons stated above. Finally, Appellant’s claim of spoliation was
not addressed in the order of summary judgment on appeal, though Appellant
claims that it was raised in response to the motion for summary judgment. The
duty rested with Appellant to ensure that the order of summary judgment addressed
all issues before the court, and if necessary to make a CR 52.02 motion to amend
its findings or make additional findings. McKinney v. McKinney, 257 S.W.3d 130,
134 (Ky. App. 2008). “In the absence of such a motion, this Court must presume
that the evidence presented at trial supports the trial court’s conclusions.” Id.
(citation omitted).
CONCLUSION
When the record is viewed in a light most favorable to Appellant with
all doubts resolved in her favor, Steelvest, supra, we conclude that the Jefferson
Circuit Court properly determined that there were no genuine issues of material
-16- fact and that Steak ‘n Shake and Burdette were entitled to a judgment as a matter
of law. Appellant could not demonstrate that Steak ‘n Shake was vicariously liable
on her claim of sexual harassment, as Steak ‘n Shake took quick action to
terminate Todd’s employment after being notified of Appellant’s claim. Appellant
could also not prevail on a claim of retaliation, since Burdette had no authority to
fire Appellant, her father stated more than once that she would not return to Steak
‘n Shake, and Steak ‘n Shake management inquired if Appellant were willing to
continue working. Finally, Appellant offered no evidence of spoliation, nor that it
would have overcome her inability to prove essential elements of the underlying
claims. For these reasons, we affirm the opinion and order of the Jefferson Circuit
Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES STEAK ‘N SHAKE AND CINDY BURDETTE: Kurt A. Scharfenberger Louisville, Kentucky Kenneth B. Siepman Kevin Roberts Indianapolis, Indiana
NO BRIEF FOR APPELLEE TODD.
-17-