Lumpkins Ex Rel. Lumpkins v. City of Louisville

157 S.W.3d 601, 17 A.L.R. 6th 841, 2005 Ky. LEXIS 83, 95 Fair Empl. Prac. Cas. (BNA) 859, 2005 WL 628516
CourtKentucky Supreme Court
DecidedMarch 17, 2005
Docket2003-SC-0267-DG, 2003-SC-851-DG
StatusPublished
Cited by15 cases

This text of 157 S.W.3d 601 (Lumpkins Ex Rel. Lumpkins v. City of Louisville) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lumpkins Ex Rel. Lumpkins v. City of Louisville, 157 S.W.3d 601, 17 A.L.R. 6th 841, 2005 Ky. LEXIS 83, 95 Fair Empl. Prac. Cas. (BNA) 859, 2005 WL 628516 (Ky. 2005).

Opinions

Opinion of the Court by

Justice WINTERSHEIMER.

This appeal and cross-appeal are from an opinion of the Court of Appeals reversing a judgment based on a jury verdict in favor of the plaintiffs in an action alleging racial discrimination resulting from a hostile work environment. The Court of Appeals reversed on the basis that the instructions used by the trial judge failed to include language that an isolated incident, unless extremely serious, is insufficient to establish a hostile work environment. The jury awarded each of the appellants $167,000 for embarrassment and humiliation.

The questions presented are whether the jury instructions follow the “bare bones” rule favored by this Court; whether the City properly preserved its objection to the instructions; whether the supplemental instruction requires the jury to find multiple incidents of discriminatory conduct in order to find a hostile work environment; whether the jury verdict is supported by the evidence; whether the trial judge abused her discretion by failing to give the jury interrogatories; whether the plaintiffs established that they suffered a tangible job detriment; and whether the City is entitled to a new trial on damages because of an improper verdict.

The appellants are African-Americans who worked as lifeguards for the public pools operated by the City of Louisville in the summer of 1997, during which time they claim that they were subjected to racial discrimination as a result of a hostile work environment. They assert that they were assigned to pools in predominantly African-American neighborhoods because they would “fit in better.” They also al[604]*604lege that their direct supervisor, a Caucasian, singled them out for unpleasant chores, such as cleaning feces off the pool deck; that he excluded them from a work-related social function; and that he repeatedly referred to each of them as “boy.”

On August 11, 1997, the direct supervisor accused the appellants of having vandalized his bicycle. Although there is some difference in their testimony, all of the appellants testified that the direct supervisor yelled at them and referred to them as “nigger.” The direct supervisor walked out onto the pool deck and screamed, “These niggers did this to my bike, and they need to get out of my pool.” This outburst was in front of a pool full of swimmers, including parents with their young children. Lacking the authority, the direct supervisor then fired the appellants, telling them to go home and that they were not needed. His supervisor called the appellants at home and told them that they were not fired and they returned to work. She also informed the direct supervisor that evening that he was fired from his position.

The appellants sued the City for creating a hostile work environment and the City denied all the allegations except for the actions by the direct supervisor on August 11. At trial, the City offered a 40-page set of jury instructions that included definitions of “severe” and “pervasive” and interrogatories asking the jury to determine if certain events occurred. The trial judge declined the proffered instructions and interrogatories and instructed the jury to find for the appellants if they were subjected to racial harassment that was severe or pervasive enough to create a hostile work environment. The trial judge also listed several factors for the jury to consider, including among others, the frequency and severity of the conduct and whether the conduct was physically threatening or humiliating.

A panel of the Court of Appeals rendered a 17-page opinion which reversed and remanded for retrial as a result of a perceived error that the instructions used by the trial judge improperly failed to include an instruction that an isolated incident, unless extremely serious, is insufficient to establish a hostile work environment pursuant to Ammerman v. Board of Educ. of Nicholas County, 30 S.W.3d 793 (Ky.2000). The Court of Appeals also held that the trial judge did not abuse her discretion in refusing to use the proffered instructions by the City because the claims of the appellants are evaluated under a “totality of the circumstances” and the interrogatories would have focused too much on individual incidents. This Court accepted discretionary review on both the motion and cross-motion.

I. Instructions

The City properly preserved its objection to the instructions given by the trial judge. The tendered instructions presented its position to the court. The City also objected to the instructions given on grounds that the jury would be allowed to find that a single incident on August 11, 1997, created a hostile work environment.

The relevant instruction read as follows:

INSTRUCTION NO. 1
You will find for the Plaintiffs, Brandon Lumpkins, Jason Starks and Kenneth Ryan Anthony, under this Instruction, if you are satisfied from the evidence that in the course of the Plaintiffs’ employment with the Defendant City of Louisville, the Plaintiffs were subjected to racial harassment by the Defendant City of Louisville, by and through its agents, severe or pervasive enough to create a work envi[605]*605ronment that a reasonable person would find hostile or abusive, and that the Plaintiffs subjectively regarded as hostile or abusive.
In determining whether the work environment was hostile or abusive, you may consider any of the following factors:
a. the frequency of the conduct or behavior;
b. the severity of the conduct or behavior;
c. whether the conduct or behavior was physically threatening or humiliating; OR
d. whether the conduct or behavior unreasonably interfered with the Plaintiffs’ work performance.
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The instructions given by the trial judge followed the “bare bones” rule. They clearly convey the standard enunciated in Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), that the hostile work environment discrimination must be severe or pervasive and more than episodic. The Kentucky practice of “bare bones” instructions applies to all litigation including civil rights cases. The concept permits the instructions to be “fleshed out” in closing argument. See Rogers v. Kasdan, 612 S.W.2d 133 (Ky.1981). Whether a work environment is hostile is determined on the totality of the circumstances and juries should not be encouraged to disaggregate individual circumstances. Cf. Williams v. General Motors Corp., 187 F.3d 553 (6th Cir.1999); see also Bowman v. Shawnee State University, 220 F.3d 456 (6th Cir.2000). In this matter, the trial judge correctly determined that the proper forum for these concerns was closing argument rather than jury instructions.

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Lumpkins Ex Rel. Lumpkins v. City of Louisville
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157 S.W.3d 601, 17 A.L.R. 6th 841, 2005 Ky. LEXIS 83, 95 Fair Empl. Prac. Cas. (BNA) 859, 2005 WL 628516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lumpkins-ex-rel-lumpkins-v-city-of-louisville-ky-2005.