COOPER, Justice.
This is a civil action for damages brought pursuant to KRS 344.450 of the Kentucky Civil Rights Act (KCRA) alleging reverse racial discrimination in employment. KRS 344.040. A Jefferson Circuit Court jury awarded damages to Jefferson County Police Department (JCPD) Sergeants Leroy Zaring and Tracy Hord because, in November 1994, former JCPD Chief Leon Jones recommended that JCPD Sergeants Thomas Dreher and James Smith be promoted to lieutenant but did not make similar recommendations with respect to Zaring and Hord, and because the Jefferson County Judge/Executive and the Jefferson Fiscal Court followed Jones’s recommendations. Zaring, Hord and Jones all are Caucasian males; Dreher and Smith are African-American males.
Jefferson Circuit Court Judge Ellen Ewing set aside the award of damages and entered a judgment NOV in favor of the Fiscal Court. The Court of Appeals reversed and ordered the verdict reinstated. We now reverse the Court of Appeals and reinstate the judgment NOV.
I. INTRODUCTION.
In Detroit Police Officers’Association v. Young, 608 F.2d 671 (6th Cir.1979),1 Judge Pierce Lively, writing for the Sixth Circuit Court of Appeals, chronicled the history and rationale of affirmative action as an operational requirement of local police departments.
The defense of operational requirements is claimed by the defendants to be an independent justification for the affirmative action plan. The basis of the claim is that improved law enforcement is a sufficiently important reason in itself for affirmative action.
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The argument ... is based on law enforcement experience and a number of studies conducted at the highest levels. E.g., National Advisory Commission on Criminal Justice Standards and Goals, Police (1973); National Commission on the Causes and Prevention of Violence, Final Report: To Establish Justice, To Insure Domestic Tranquility (1969); Report of the National Advisory Commission on Civil Disorders (1968); President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police (1967). As these reports emphasize, the relationship between government and citizens is seldom more visible, personal and important than in police-citizen contact. See To Establish Justice, supra at 145; Report on Civil Disorders, supra at 300 (New York Times Edition). It is critical to effective law enforcement that police receive public cooperation and support. Report on Civil Disorders, supra at 301; Task Force Report: The Police, supra at 144-45, 167; Police, supra at 330.
These national commissions recommended the recruitment of additional numbers of minority police officers as a means of improving community support and law enforcement effectiveness. In fact, the benefits of [African-American] officers were recognized as early as 1931 by the “Wickersham Commission.” Report on the Causes of Crime 242, Na[586]*586tional Commission of Law Observance and Enforcement (Vol.1,1931).
In 1967, a presidential commission stated the proposition offered by the defendants in this case:
In order to gain the general confidence and acceptance of a community, personnel within a police department should be representative of the community as a whole.
Task Force Report: The Police, supra at 167.
This need extends to the higher ranks in the police departments, such as the rank of sergeant involved in this case:
If minority groups are to feel that they are not policed entirely by a white police force, they must see that [African-American] or other minority officers participate in policymaking and other crucial decisions.
Id. at 172.
The presence of a mostly white police force in minority communities can be a “dangerous irritant” which can trigger, as it did in Detroit in 1967, a violent response. Report on Civil Disorders, supra at 315, 120; see also id. at 84-108 (chronology of events of 1967 Detroit civil disorders).
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The argument that police need more minority officers is not simply that blacks communicate better with blacks or that a police department should cater to the public’s desires. Rather, it is that effective crime prevention and solution depend heavily on the public support and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public’s perception of law enforcement officials and institutions.
Id. at 695-96.
The Kentucky Civil Rights Act (KCRA) was enacted in 1966 to implement in Kentucky the Federal Civil Rights Act of 1964. 1966 Ky. Acts, ch. 2 Art. I, § 101; see KRS 344.020(1). Thus, the provisions of the KCRA are virtually identical to those of the Federal act. Mills v. Gibson Greetings, Inc., 872 F.Supp. 366, 371 (E.D.Ky.1994). For that reason, we held in Harker v. Federal Land Bank of Louisville, Ky., 679 S.W.2d 226 (1984), that “in this particular area we must consider the way the Federal act has been interpreted.” Id. at 229. In 1972, those provisions of Title VII of the 1964 Civil Rights Act that proscribe discrimination in employment were made applicable to states and municipalities. Equal Employment Opportunity Act of 1972 (EEOA), Pub.L. No. 92-261, 86 Stat. 103 (March 24, 1972); see 42 U.S.C. § 2000e(b). The rule of construction enunciated in Harker, supra, is especially applicable to KRS 344.040(1) since the definition of employment discrimination in that statute is almost identical to the definition of an “unlawful employment practice” in the EEOA. 42 U.S.C. § 2000e-2(a)(1). Conduct that violates KRS 344.040(1) almost certainly contravenes Title VII as well. Roy v. Russell County Ambulance Serv., 809 F.Supp. 517, 519 (W.D.Ky.1992). This fact tangentially implicates the principle enunciated in Chesapeake & O, Ry., Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983 (1931), that 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.” Id. at 220-21, 51 S.Ct. at 453.
II. FACTS.
In early 1980, two JCPD police officers commenced a Title VII action in the Unit[587]*587ed States District Court for the Western District of Kentucky charging racially discriminatory hiring and promotion practices by the JCPD. Baker v. County of Jefferson, No. C 80-0039-L(A). At that time, members of minority groups comprised only 2.7% of the total force of the JCPD. A consent decree was subsequently entered in Baker requiring, inter alia, that one minority member be hired or promoted for every two majority members (Caucasian males) hired or promoted until the percentage of minorities on the force and in the ranks of sergeant, lieutenant, and captain reached a percentage roughly equivalent to their representation in the community as a whole. Otherwise, the factors applicable to promotions remained as required by KRS 78.440(7):
The grading of promotional tests shall be as follows: sixty percent (60%) for written examination; thirty percent (80%) for oral examination; one percent (1%) for each year in seniority in grade, not to exceed ten percent (10%). Seniority points shall be awarded for each year of service after five (5) full years of service. The results of the written and oral examinations shall be added to the seniority points available to each applicant in determining the applicant’s final evaluated rating.
Because of the seniority factor, it was impossible for minority members hired after 1980 to achieve final evaluated ratings (FERs) competitive with those achieved by majority members who had been in grade for at least five years prior to 1980. Thus, to comply with the consent decree, two promotion fists were established for each rank, a '‘white” fist containing majority member candidates and a “black” fist containing minority member candidates. For each promotion to a particular rank, one candidate was selected for promotion from that rank’s black fist for every two candidates selected for promotion from that rank’s white fist. The fists were compiled by the Secretary/Examiner of the Jefferson County Police Merit Board based on the FERs achieved by the candidates per KRS 78.440(7), supra. The lists were certified to the Chief of Police pursuant to Regulation 7.2(3) of the Police Merit Board’s Rules and Regulations, the so-called “rule of three”:
If the vacancy is to be filled through promotion, the Secretary/Examiner shall certify to the Chief, from the appropriate eligibility fist, names of efigibles in rank order beginning with the top name of the fist. The number of names of efigibles certified shall be three more than the actual number of vacancies to be filled.
In other words, if there were three vacancies to be filled by promotion, the “white” list would contain the names of the five candidates who had achieved the highest FERs among majority member candidates, fisted in the order of their FERs. The “black” fist would contain the names of the four candidates who had achieved the highest FERs among minority member candidates, also fisted in the order of their FERs. The Chief would then recommend two candidates for promotion from the five names on the white fist and one candidate from the four names on the black fist. Though there were some exceptions, the Chief customarily recommended those candidates on each fist with the highest FERs. The consent decree expired at the end of calendar year 1989, at which time the percentage of minority members on the force had reached eighteen percent (18%).
Upon expiration of the consent decree, the method for recommending candidates for promotion continued to be by the “rule of three,” but only one fist of candidates was submitted to the Chief. In mid-1990, [588]*588Leon Jones was appointed Chief of the JCPD. During the ensuing 3½ years, Jones was called upon to recommend 35 persons for promotion to the ranks of sergeant, lieutenant or captain. The eligibility lists submitted to Jones for those promotions pursuant to the “rule of three” contained the names of one female and 34 white males — and no African-Americans. Thus, during the period after the expiration of the consent decree until the end of 1993, the JCPD’s record for promoting minorities to the ranks of sergeant, lieutenant and captain was one female and “0 for 35” African-Americans. Obviously, a continuation of that trend would have ultimately resulted in a misrepresentation of minorities and women in those ranks similar to that which existed prior to the consent decree.
In response to these statistics, the Jefferson Fiscal Court directed the Police Merit Board to undertake an examination of the promotion selection system and devise a method that would give minorities and women equal access to promotions. The Merit Board appointed a committee of Merit Board members and JCPD members that ultimately recommended that Regulation 7.2(3) be amended to eliminate the “rule of three” with respect to the promotion of sworn officers and to replace it with a system known as “banding.” The recommendation was adopted, and the amended regulation provides as follows:
In compiling every competitive promotion list for examinations given after the effective date of this regulation as amended, the eligible candidates shall be ranked in the order of their ratings earned in the examination given for the purpose of establishing the list. The final earned ratings determined pursuant to state law as a result of the examination process shall be divided into rating bands by the Secretary/Examiner for the purpose of compiling the certified promotion list in each grade. Such rating bands shall be established based on psychometric properties of the test score distribution, and certified as such by the Secretary/Examiner. All test scores falling within a given rating band shall be considered tied. The Secretary/Examiner shall first certify all eligible candidates in the top “A Band” for promotional consideration by the Chief within any rank. No other bands shall be certified to the Chief until such time as all candidates in the “A Band” have either been promoted or formally passed over, with a written explanation for such action delivered by the Chief to the Secretary/Examiner. Upon the exhaustion of all candidates in “A Band” and in the event that there are still vacancies available for promotion, the Secretary/Examiner shall then certify those candidates in the second or “B Band” to the Chief for promotional consideration, and shall continue with the procedures set forth herein for each succeeding band until the expiration of the promotional list or in the event that all candidates on the eligibility list have been promoted, whichever comes first.
Thus, the amended regulation continues to follow the requirements of KRS 78.440(7) to establish the candidates’ FERs, but the FERs are used only to determine the “band” to which each candidate is assigned. Otherwise, the FERs play no role in the final selection for promotion. The premise of “banding” is that all test results within a certain range are essentially equal. The written test includes an essay, the grading of which is substantially subjective, and the same is true with respect to the oral examination. Thus, the factor that played the most significant role in differentiating among FERs, thereby substantially disadvantaging minority candidates under the “rule of [589]*589three,” was seniority. The relatively recently hired minority and women candidates simply did not have enough seniority to achieve an FER high enough to make the list. “[Ojnce implemented, fair procedures for choosing low-level employees may take years to show results in the higher ranks.” Boston Police Superior Officers Fed’n v. City of Boston, 147 F.3d 13, 22 (1st Cir.1998). Thus, the purpose of adopting “banding” was to expand the list of eligible candidates and treat those on each list as equals, thereby reducing the significance of seniority and increasing the promotional opportunities of minority and women candidates.
Due to the almost twelve month hiatus in promotions while Regulation 7.2(3) was being studied and amended, nine vacancies occurred in the rank of sergeant, seven in the rank of lieutenant, and two in the rank of captain. These vacancies were scheduled to be filled by promotion, effective November 15, 1994. At that time, the JCPD consisted of approximately 400 police officers with 40 to 45 sergeant positions and 17 to 20 lieutenant positions. A sergeant was required to be in grade for at least one year before being eligible for promotion to lieutenant. A total of twenty-four sergeants applied for the seven lieutenant vacancies. Fourteen of those candidates were listed in A Band. Twelve, including Zaring and Hord, were Caucasians. The only African-American candidates listed in A Band were Dreher and Smith. The A Band list was submitted to Chief Jones with the candidates’ names in alphabetical order and with no information as to the candidates’ respective FERs.
Jones admitted at trial that he recommended Sergeants Dreher and Smith for promotion to lieutenant because (1) under banding, they were equally as qualified as the other candidates; (2) this was his first opportunity in his four-year tenure to promote an African-American candidate; and (3) morale is an important factor in a police department, and the promotions of Dreher and Smith would have a positive impact on the morale of those officers who were minority members. (Jones also appointed one African-American patrolman to sergeant and one African-American lieutenant to captain during the November 1994 promotion cycle.)
III. REVERSE DISCRIMINATION AND AFFIRMATIVE ACTION.
A. BACKGROUND.
The United States Supreme Court has held on numerous occasions that reverse employment discrimination against members of a majority group is permissible where necessary to address the results of previous or current discrimination in their favor. E.g., Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 516, 106 S.Ct. 3063, 3072, 92 L.Ed.2d 405 (1986) (“Title VII permits employers and unions voluntarily to make use of reasonable race-conscious affirmative action”). In response to an assertion that race-conscious affirmative action plans are expressly prohibited by the very language of Title VII, the United States Supreme Court observed in United Steelworkers of America, etc. v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979):
It would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice and intended to improve the lot of those who had “been excluded from the American dream for so long” 110 Cong. Rec. 6552 (1964) (remarks of Sen. Humphrey), constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.
Id. at 204, 99 S.Ct. at 2728.
Weber upheld the validity of a private, voluntary, race-conscious affirmative ac[590]*590tion plan because (1) it was designed to break down old patterns of discrimination and to open employment opportunities for minorities in occupations that had been traditionally closed for them and (2) it did not unnecessarily trammel the interests of Caucasian employees. Specifically, the Court noted that the plan did not require the discharge of Caucasian employees, did not create an absolute bar to the advancement of Caucasian employees, and was remedially aimed at a manifest racial imbalance. Id. at 208, 99 S.Ct. at 2730. Cf. Boston Police, supra, 147 F.3d at 23-25 (an ad hoc and admittedly racially motivated promotion of a minority candidate to police lieutenant over a higher-scoring majority candidate did not violate the Equal Protection Clause because the action was in furtherance of a compelling governmental interest, i.e., to remedy the effects of prior discrimination, and (1) the person promoted did not receive a special or unfair benefit by his promotion, since he was qualified for the position; (2) the promotion did not unduly frustrate the legitimate expectations of those not promoted, since (a) there were more candidates for lieutenant than available positions and (b) those not promoted did not have a property right to the promotion; and (3) the promotion did not unduly interfere with any valid governmental policy, since selection on the basis of strict rank order was designed to ensure that candidates were chosen on the basis of their ability to do the job and the person promoted had that ability).
An analysis of the effect of an affirmative action plan on a claim of reverse discrimination under the KCRA is governed by the allocation of the burden of proof in a reverse discrimination claim brought under Title VII. Harker, supra, 679 S.W.2d at 229.
B. MCDONNELL DOUGLAS.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), was a Title VII action brought by an African-American employee who claimed that he had been subjected to employment' discrimination because of his race. In that case, the United States Supreme Court established “the proper order and nature of proof in' actions under Title VII,” id. at 793-94, 93 S.Ct. at 1820, and established the following tripartite analysis:
First, the plaintiff must establish a pri-ma facie case of discrimination. Second, if the plaintiff carries his initial burden, the burden shifts to the defendant to “articulate some legitimate nondiscriminatory reason” for the challenged workplace decision. Third, if the defendant carries this burden, the plaintiff has an opportunity to prove that the legitimate reasons the defendant offered were merely a pretext for discrimination.
Notari v. Denver Water Dept., 971 F.2d 585, 588 (10th Cir.1992), citing McDonnell Douglas, supra, at 802, 93 S.Ct. at 1824. “Although intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000), quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). The defendant’s “burden is one of production, not persuasion.” Id. at 142, 120 S.Ct. at 2106 (emphasis added).
In a typical discrimination case, the plaintiff satisfies the burden to establish a prima facie case “by showing (i) that he belongs to a racial minority; (ii) that he [591]*591applied and was qualified for a job for which the employer was seeking applicants; (in) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” McDonnell Douglas, supra, at 802, 93 S.Ct. at 1824.
In a reverse discrimination case in which the discrimination is the product of an affirmative action plan, the McDonnell Douglas framework must be appropriately adjusted.2 First, because the plaintiffs are “white male[s], [they] clearly do[ ] not satisfy prong one” of the prima facie test. Mills v. Health Care Serv. Corp., 171 F.3d 450, 454 (7th Cir.1999). “[I]f strictly applied, the prima facie test would eliminate all reverse discrimination suits.” Id. at 454. See also Iadimarco v. Runyon, 190 F.3d 151, 158 (3d Cir.1999) (“Obviously, a White plaintiff can not establish ‘membership in a minority group’ in the same way a Black plaintiff can.”); Notari v. Denver Water Dept., supra, at 589 (10th Cir.1992) (“it is appropriate to adjust the prima facie case to reflect the reverse discrimination context of a lawsuit because the presumptions in Title VII analysis that are valid when a plaintiff belongs to a disfavored group are not necessarily justified when the plaintiff is a member of an historically favored group.”) (quotation omitted); Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir.1985) (“a prima facie case of ‘reverse discrimination’ is established upon a showing that background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.”) (quotation omitted); Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C.Cir.1981) (“Membership in a socially disfavored group was the assumption on which the entire McDonnell Douglas analysis was predicated ... it defies common sense to suggest that the promotion of a black employee justifies an inference of prejudice against white co-workers in our present society.”).
Second, reverse discrimination cases that are the product of affirmative action plans are, as here, “direct” discrimination cases. Chief Jones admitted that he promoted Dreher and Smith over the other equally qualified candidates because they were African-Americans. Appellants do not deny, indeed they admit, that the promotions of Dreher and Smith were racially motivated pursuant to the affirmative action plan mandated by the Fiscal Court, adopted by the Merit Board, and implemented by Chief Jones. Thus, to prove reverse discrimination, there is no need for plaintiffs like Zaring and Hord who challenge an employment decision flowing from an affirmative action plan to resort to indirect evidence to prove discrimination. Because intentional discrimination is a given, plaintiffs like Zaring and Hord meet their prima facie burden simply by proving that “ ‘but for plaintiffs race he would have been promoted.” ’ Notari, supra, at 590, quoting Holmes v. Bevilacqua, 794 F.2d 142, 146 (4th Cir.1986) (en banc). See also Taken v. Oklahoma Corp. Comm’n, 125 F.3d 1366, 1369 (10th Cir.1997) (holding that “plaintiffs failed to present a prima facie case of race discrimination” because “the evidence does not support an inference that but for plaintiffs’ [592]*592status as whites, one of them would have been promoted.”) (quotation omitted); Smith v. Secretary of Navy, 659 F.2d 1113, 1119 (D.C.Cir.1981) (“To state a prima fa-cie case under McDonnell Douglas, a plaintiff must make a showing that he would have got[ten] a job or promotion ‘but for’ an illegal act of discrimination.”); cf. Aiken v. Hackett, 281 F.3d 516, 519-20 (6th Cir.2002) (holding that Caucasian police officers challenging an affirmative action program lacked Article III standing because they had “neither alleged nor shown that the City would have promoted them if the City had used a race-neutral system in its promotions of police officers.”).
Third, in a reverse discrimination case, the defendant may meet its burden of production by showing that the alleged discrimination was pursuant to a valid affirmative action plan. As noted in McDonnell Douglas, supra, the burden of production may be satisfied by the articulation of a legitimate, nondiscriminatory rationale for the employment decision. “The existence of an affirmative action plan provides such a rationale.” Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 626, 107 S.Ct. 1442, 1449, 94 L.Ed.2d 615 (1987). Because the defendant’s burden is only one of production, the defendant does -not “carry the burden of proving the validity of the plan.” Id. at 627, 107 S.Ct. at 1449. “The burden of proving its invalidity remains on the plaintiff.” Id.
Finally, once the defendant meets its burden of production with the existence of an affirmative action plan, the burden shifts back to the plaintiffs to prove (1) that the affirmative action plan is invalid or (2) that the defendant’s remedial rationale is pretextual. Id. at 626, 107 S.Ct. at 1449.3 Zaring and Hord do not suggest that Chief Jones’s remedial rationale was pretextual, i.e., not the true reason for his decision, so the only remaining issue in this final step is whether Zaring and Hord satisfied their burden to prove that the affirmative action plan was invalid.
In accordance with the McDonnell Douglas structure outlined supra, we ordinarily would begin with a thorough analysis of whether Zaring and Hord met their entire prima facie burden by proving causation in addition to intentional discrimination. E.g., Taken, supra, at 1369. Indeed, the trial court entered the judgment NOV in favor of the Fiscal Court because Zaring and Hord did not prove that they would have been promoted but for the application of the affirmative action plan.4 However, [593]*593in this case we proceed directly to the second and third steps in the analysis because, as discussed infra, Zaring and Hord did not even begin to meet their burden of proving that the affirmative action plan was invalid.
C. VALID AFFIRMATIVE ACTION PLAN.
It is undisputed that the purpose in amending Regulation 7.2(3) was to substitute “banding” for the “rule of three” in order to end the manifest imbalance in the number of women and racial minorities in the ranks of sergeant, lieutenant and captain and to facilitate the promotion of these historically underrepresented classes. Thus, the amendment was clearly an affirmative action plan. That evidence triggered the third step in the McDonnell Douglas analysis and shifted the burden back to Zaring and Hord.
An affirmative action plan is afforded a presumption of validity and the burden of proof is on the plaintiff to establish its invalidity. Johnson, supra, 480 U.S. at 626, 107 S.Ct. at 1449 (1987). Zar-ing and Hord do not claim that the concept of “banding” is either illegal or unconstitutional, presumably because “banding” has been consistently upheld in the face of every challenge to date. Chicago Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 656 (7th Cir.2001), cert. denied, 534 U.S. 995, 122 S.Ct. 465, 151 L.Ed.2d 381 (2001); Officers for Justice v. Civil Serv. Comm’n of the City and County of San Francisco, 979 F.2d 721, 728 (9th Cir.1992); Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140 (2d Cir.1991). Nor do they advance any theory that the amendment of Regulation 7.2(3) was an invalid exercise of affirmative action. As in Steelworkers v. Weber, supra, at 208, 99 S.Ct. at 2730, (1) the reason for amending Regulation 7.2(3) to adopt “banding” was to break down the pattern of discrimination evidenced by the four-year record of “0 for 35” and to open employment opportunities for members of minority groups in areas that had been traditionally closed to them; and (2) Regulation 7.2(3) as amended did not trammel the interests of male Caucasian employees such as Zaring and Hord because it was aimed at a manifest racial imbalance and neither required their discharge and replacement by minority employees nor created an absolute bar to their advancement. It simply afforded equally qualified female and minority employees the same opportunity for advancement as Caucasian male employees. Absent any evidence to support a Weber finding that the amendment of Regulation 7.2(3) was an invalid affirmative action plan, Johnson v. Transportation Agency, supra, required entry of a judgment NOV in favor of the Fiscal Court.
Accordingly, we reverse the Court of Appeals and reinstate the judgment NOV of the Jefferson Circuit Court.
LAMBERT, C.J.; STUMBO, and GRAVES, JJ., concur.
KELLER, J., concurs in result only by separate opinion.
WINTERSHEIMER, J., concurs in result only without separate opinion.
JOHNSTONE, J., dissents by separate opinion.