Gray v. Kenton County

467 S.W.3d 801, 2014 Ky. App. LEXIS 165, 124 Fair Empl. Prac. Cas. (BNA) 1500, 2014 WL 5304978
CourtCourt of Appeals of Kentucky
DecidedOctober 17, 2014
DocketNo. 2013-CA-000145-MR
StatusPublished
Cited by10 cases

This text of 467 S.W.3d 801 (Gray v. Kenton County) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gray v. Kenton County, 467 S.W.3d 801, 2014 Ky. App. LEXIS 165, 124 Fair Empl. Prac. Cas. (BNA) 1500, 2014 WL 5304978 (Ky. Ct. App. 2014).

Opinion

OPINION

VANMETER, Judge:

Appellants, Tammy Gray, Nicole Johnson, and Bridget Feinauer appeal from the Kenton Circuit Court’s order granting Kenton County, Kentucky, summary judgment on appellants’ claims alleging sexual harassment under the Kentucky Civil Rights Act. For the following reasons, we affirm.

Appellants were employed with the Kenton County Clerk’s office during the tenure of former Chief Deputy Danny Miles, who was hired by then Kenton County Clerk, Rodney Eldridge. Appellants each brought suit in United States District Court claiming sexual harassment under Title VII of the Civil Rights Act. Gray’s federal claims were dismissed as time-barred, so she filed this action in the Kenton Circuit Court asserting state law. claims of sexual harassment under the Kentucky Civil Rights Act, KRS1 344.040 et seq. The United States District Court granted summary judgment against Johnson • and Feinauer, and they likewise brought suit in state court. All three state law claims were consolidated into the instant action.

Gray was employed with the Kenton County Clerk’s office prior to Eldridge’s election and the hiring of Miles, and continued to be employed there at all relevant times. Gray alleges that Miles committed each of the following acts: telling Gray that with an erectile dysfunction drug he and she could have fun for hours; when Gray told Miles the computers had been up and down for hours he told her to slowly repeat the phrase “up and down”; [804]*804Miles told Gray “you can’t be the first, but you can be the next”; Miles said to Gray that he could show her a better time than her husband and asked where she spent' her free time; and, Miles once touched her leg, although Gray was not sure whether the touch was intentional.

Johnson was a deputy in the Kenton County Clerk’s office from May 2008 until she was terminated in November 2008. Johnson asserts she was terminated for refusing the advances of Miles and that Miles created a hostile work environment. She claims Miles harassed her in the following ways: Miles told her she was beautiful, and that he liked her hair and outfits; Miles sat on her desk and folded his legs inappropriately; in a private meeting about proper office attire, Miles told her she was sexy in the outfit she had worn and could do a slide show for him; and Miles also commented that she could not be the first, but she could be the next, referring to sex.

Feinauer was also employed prior to Miles’s arrival, and continued to be employed with the Kenton County Clerk’s office at all relevant times. She alleged both quid pro quo harassment and a hostile work environment. Feinauer claims Miles asked her out on lunch dates and offered to show her a good time. He told her it did not matter that he was married, that his wife was a bitch, and he was unhappy in his marriage. He stroked her hair, described her hair as “soft,” and referred to her as “the beautiful Bridget.”

Kenton County moved for summary judgment on all sexual harassment claims, conceding that Miles did act inappropriately, and has since been asked to resign, but nonetheless arguing that his conduct did not rise to the level of sexual harassment under the Kentucky Civil Rights Act. The court granted Kenton County’s motion for summary judgment, finding that Miles’s conduct was not sufficiently severe and pervasive so as to create a hostile work environment. The court also found that as for Gray and Feinauer’s quid pro quo claims, Gray and Feinauer suffered no tangible adverse employment consequences, and vicarious liability could not be imposed on Eldridge.

On appeal, each appellant argues that the trial court improperly disposed of her quid pro quo and/or hostile work environment sexual harassment claims by granting Kenton County summary judgment. All appellants claim their treatment by Miles was severe and pervasive enough to warrant relief for a hostile work environment under the Kentucky Civil Rights Act. Gray and Feinauer claim the trial court erred by finding no genuine issue of material fact as to whether they suffered a tangible adverse employment consequence as a result of Miles’s conduct, and by finding that Eldridge was not vicariously liable for Miles’s conduct. Lastly, Johnson alleges that the trial court erred by finding that her termination was not a result of her rejection of Miles’s advances, and that Eldridge was not motivated to terminate her due to the alleged rejected advances.

CR2 56.03 provides that summary judgment is appropriate when no genuine issue of material fact exists and the moving party is therefore entitled to judgment as a matter of law. Summary judgment may be granted when “as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 488 (Ky.1991) (internal quotations omitted). Whether summary judgment is appropriate is a legal question involving no [805]*805factual findings, so a trial court’s grant of summary judgment is reviewed de novo. Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370-71 (Ky.2010).

“A sexual harassment claim brought under the Kentucky Civil Rights Act (“KCRA”) is to be analyzed in the same manner as a claim brought under Title VII, its federal counterpart.” Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir.2005) (citing Ammerman v. Bd. of Educ., 30 S.W.3d 793, 797-98 (Ky. 2000)). Title VII and the KCRA prohibit two types of sexual harassment. First, they forbid quid pro quo harassment, “which occurs when an employee’s submission to unwanted sexual advances becomes either a condition for the receipt of job benefits, or the means to avoid an adverse employment action.” Howington v. Quality Rest. Concepts, LLC, 298 Fed.Appx. 436, 440 (6th Cir.2008) (citations omitted). Second, “Title VII also ‘affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult,’ and, to enforce this right, prohibits conduct that creates a ‘hostile environment.’ ” Id. (citation omitted). Each appellant argues that her claims of both quid pro quo sexual harassment and hostile work environment created by Miles’s conduct should not have been dismissed by the trial court’s grant of summary judgment.

First, we will address all three appellants’ arguments that the trial court erred by ruling that Miles’s conduct was not severe and pervasive enough to create a hostile work environment.

A plaintiff may establish a violation of Title VII by proving that the discrimination based on sex created a hostile or abusive work environment. To establish a prima facie case of a hostile work environment based on sex, a plaintiff must show 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,

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467 S.W.3d 801, 2014 Ky. App. LEXIS 165, 124 Fair Empl. Prac. Cas. (BNA) 1500, 2014 WL 5304978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-kenton-county-kyctapp-2014.