RENDERED: JULY 9, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-1104-MR
MELISSA NEALE APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE JULIE M. GOODMAN, JUDGE ACTION NO. 18-CI-03224
GARY GINN, CORONER AND LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.
ACREE, JUDGE: Melissa Neale appeals the Fayette Circuit Court’s August 10,
2020 order granting summary judgment on behalf of Gary Ginn and the Lexington-
Fayette Urban County Government (LFUCG). Neale contends the court erred in
granting the judgment because: (1) LFUCG was her employer and, therefore,
liable for the actions of Ginn, and (2) taken in a light most favorable to Neale, averments of Ginn’s actions established the creation of a hostile work
environment. Finding no error, we affirm.
BACKGROUND
In 2003, the people of Fayette County elected Gary Ginn as Coroner.
An elected coroner is authorized to hire and fire his own employees, but LFUCG
sets the salary for that employee and is involved in budgetary issues. See KRS1
64.185.
In 2015, after resigning from her previous position at the Fayette
County Detention Center, Neale began her employment as a deputy coroner in
Fayette County. During her previous employment at the Detention Center, Neale
attended sexual harassment training and understood her obligation to report such
incidents in the workplace but was never required to sit through such training for
this new employment.
When Neale started working under Ginn, she perceived the work
environment as unprofessional. According to Neale, Ginn made multiple
workplace comments about females and told ribald jokes—essentially, according
to her, making the workplace a “men’s locker room” environment. For two years,
Neale endured the environment as it was, causing her such distress that she decided
to find new employment. She gave her resignation letter on June 5, 2017, but
1 Kentucky Revised Statutes.
-2- never mentioned a problem with the work environment, only stating she obtained
new employment. In very little time, her new employment did not work out. Ginn
allowed Neale to rescind her resignation letter and stay long term. Then, Neale
became aware of another job offer and resigned from employment with the
Coroner a second time.
Upon leaving, Neale reported Ginn’s conduct to City Councilwoman
Susan Lamb. Lamb instructed Neale to file a complaint with the Human Resource
Department, which Neale did on June 26, 2017. She was interviewed by Human
Resources and presented a seven-page document complaining Ginn engaged in
inappropriate comments, favoritism, misuse of public funds, and improperly
handling bodies in his custody.
On November 15, 2017, the Human Resources’ investigation into
Ginn was completed. The report revealed a dilemma that, under Section 99 of the
Kentucky Constitution, the office of the Coroner is an elected office separate and
independent from the LFUCG; therefore, its employees are excluded from urban
county government under KRS 67A.210. The report showed that although the
Coroner’s payroll is funded by the LFUCG, its employees are unclassified
employees in the LFUCG payroll system and hired, supervised, and controlled by
the Coroner. The investigation substantiated four occasions on which Ginn
engaged in sexual innuendo, sexual banter, and inappropriate conduct; however,
-3- LFUCG could only make recommendations to establish a harassment policy and
training because it had no control over the Coroner.
Shortly after the investigation report came out, Neale filed a charge of
discrimination with the Lexington Fayette Human Rights Commission, where she
identified her employer as the Fayette County Coroner’s Office. A year later,
Neale filed her lawsuit in Fayette Circuit Court. This time, her complaint included
LFUCG as a “joint employer” liable under KRS 344.030 for sexual harassment
perpetrated by Ginn.
In response, LFUCG moved to dismiss the claim because Neale is not
considered an employee of LFUCG. That motion was overruled. However, after
the case was pending for over a year, LFUCG and Ginn moved for summary
judgment. Ultimately, the circuit court granted the motion because there were no
genuine issues regarding the material fact that Neale was not an employee of
LFUCG, and because she failed to present sufficient evidence to create a genuine
issue that she was subjected to sexual harassment under KRS 344.030.
This appeal followed.
STANDARD OF REVIEW
“The proper standard of review on appeal when a trial judge has
granted a motion for summary judgment is whether the record, when examined in
its entirety, shows there is ‘no genuine issue of material fact and the moving party
-4- is entitled to a judgment as a matter of law.’” Hammons v. Hammons, 327 S.W.3d
444, 448 (Ky. 2010) (quoting Kentucky Rules of Civil Procedure (CR) 56.03).
“Because summary judgment does not require findings of fact but only an
examination of the record to determine whether material issues of fact exist, we
generally review the grant of summary judgment without deference to either the
trial court’s assessment of the record or its legal conclusions.” Id. (citing Malone v.
Kentucky Farm Bureau Mut. Ins. Co., 287 S.W.3d 656, 658 (Ky. 2009)).
ANALYSIS
The circuit court granted summary judgment to LFCUG and Ginn for
separate reasons. According to the order, because LFCUG was not Neale’s
employer, there was no issue of material fact that it could be liable for sexual
discrimination by Ginn. Additionally, the conduct of which Neale complained did
not raise a genuine issue of material fact demonstrating the existence of a sexually
hostile work environment. We agree with the circuit court’s ruling.
We begin by determining whether Ginn’s conduct in the workplace
raises issues of a material fact. In determining if circumstances support a claim for
a sexually hostile work environment, the Supreme Court of the United States has
determined courts must look to “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 work
-5- performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S. Ct.
2275, 2283, 141 L. Ed. 2d 662 (1998) (internal quotation marks and citation
omitted). However, it has “never held that workplace harassment, even harassment
between men and women, is automatically discrimination because of sex merely
because the words have sexual content or connotation.” Oncale v. Sundowner
Offshore Services, Inc. 523 U.S. 75, 80, 118 S. Ct. 998, 1002, 140 L. Ed.
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RENDERED: JULY 9, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-1104-MR
MELISSA NEALE APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE JULIE M. GOODMAN, JUDGE ACTION NO. 18-CI-03224
GARY GINN, CORONER AND LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.
ACREE, JUDGE: Melissa Neale appeals the Fayette Circuit Court’s August 10,
2020 order granting summary judgment on behalf of Gary Ginn and the Lexington-
Fayette Urban County Government (LFUCG). Neale contends the court erred in
granting the judgment because: (1) LFUCG was her employer and, therefore,
liable for the actions of Ginn, and (2) taken in a light most favorable to Neale, averments of Ginn’s actions established the creation of a hostile work
environment. Finding no error, we affirm.
BACKGROUND
In 2003, the people of Fayette County elected Gary Ginn as Coroner.
An elected coroner is authorized to hire and fire his own employees, but LFUCG
sets the salary for that employee and is involved in budgetary issues. See KRS1
64.185.
In 2015, after resigning from her previous position at the Fayette
County Detention Center, Neale began her employment as a deputy coroner in
Fayette County. During her previous employment at the Detention Center, Neale
attended sexual harassment training and understood her obligation to report such
incidents in the workplace but was never required to sit through such training for
this new employment.
When Neale started working under Ginn, she perceived the work
environment as unprofessional. According to Neale, Ginn made multiple
workplace comments about females and told ribald jokes—essentially, according
to her, making the workplace a “men’s locker room” environment. For two years,
Neale endured the environment as it was, causing her such distress that she decided
to find new employment. She gave her resignation letter on June 5, 2017, but
1 Kentucky Revised Statutes.
-2- never mentioned a problem with the work environment, only stating she obtained
new employment. In very little time, her new employment did not work out. Ginn
allowed Neale to rescind her resignation letter and stay long term. Then, Neale
became aware of another job offer and resigned from employment with the
Coroner a second time.
Upon leaving, Neale reported Ginn’s conduct to City Councilwoman
Susan Lamb. Lamb instructed Neale to file a complaint with the Human Resource
Department, which Neale did on June 26, 2017. She was interviewed by Human
Resources and presented a seven-page document complaining Ginn engaged in
inappropriate comments, favoritism, misuse of public funds, and improperly
handling bodies in his custody.
On November 15, 2017, the Human Resources’ investigation into
Ginn was completed. The report revealed a dilemma that, under Section 99 of the
Kentucky Constitution, the office of the Coroner is an elected office separate and
independent from the LFUCG; therefore, its employees are excluded from urban
county government under KRS 67A.210. The report showed that although the
Coroner’s payroll is funded by the LFUCG, its employees are unclassified
employees in the LFUCG payroll system and hired, supervised, and controlled by
the Coroner. The investigation substantiated four occasions on which Ginn
engaged in sexual innuendo, sexual banter, and inappropriate conduct; however,
-3- LFUCG could only make recommendations to establish a harassment policy and
training because it had no control over the Coroner.
Shortly after the investigation report came out, Neale filed a charge of
discrimination with the Lexington Fayette Human Rights Commission, where she
identified her employer as the Fayette County Coroner’s Office. A year later,
Neale filed her lawsuit in Fayette Circuit Court. This time, her complaint included
LFUCG as a “joint employer” liable under KRS 344.030 for sexual harassment
perpetrated by Ginn.
In response, LFUCG moved to dismiss the claim because Neale is not
considered an employee of LFUCG. That motion was overruled. However, after
the case was pending for over a year, LFUCG and Ginn moved for summary
judgment. Ultimately, the circuit court granted the motion because there were no
genuine issues regarding the material fact that Neale was not an employee of
LFUCG, and because she failed to present sufficient evidence to create a genuine
issue that she was subjected to sexual harassment under KRS 344.030.
This appeal followed.
STANDARD OF REVIEW
“The proper standard of review on appeal when a trial judge has
granted a motion for summary judgment is whether the record, when examined in
its entirety, shows there is ‘no genuine issue of material fact and the moving party
-4- is entitled to a judgment as a matter of law.’” Hammons v. Hammons, 327 S.W.3d
444, 448 (Ky. 2010) (quoting Kentucky Rules of Civil Procedure (CR) 56.03).
“Because summary judgment does not require findings of fact but only an
examination of the record to determine whether material issues of fact exist, we
generally review the grant of summary judgment without deference to either the
trial court’s assessment of the record or its legal conclusions.” Id. (citing Malone v.
Kentucky Farm Bureau Mut. Ins. Co., 287 S.W.3d 656, 658 (Ky. 2009)).
ANALYSIS
The circuit court granted summary judgment to LFCUG and Ginn for
separate reasons. According to the order, because LFCUG was not Neale’s
employer, there was no issue of material fact that it could be liable for sexual
discrimination by Ginn. Additionally, the conduct of which Neale complained did
not raise a genuine issue of material fact demonstrating the existence of a sexually
hostile work environment. We agree with the circuit court’s ruling.
We begin by determining whether Ginn’s conduct in the workplace
raises issues of a material fact. In determining if circumstances support a claim for
a sexually hostile work environment, the Supreme Court of the United States has
determined courts must look to “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 work
-5- performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S. Ct.
2275, 2283, 141 L. Ed. 2d 662 (1998) (internal quotation marks and citation
omitted). However, it has “never held that workplace harassment, even harassment
between men and women, is automatically discrimination because of sex merely
because the words have sexual content or connotation.” Oncale v. Sundowner
Offshore Services, Inc. 523 U.S. 75, 80, 118 S. Ct. 998, 1002, 140 L. Ed. 2d 201
(1998). Conduct that is “merely offensive” will not support a claim for a hostile
work environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S. Ct.
367, 370, 126 L. Ed. 2d 295 (1993). The Sixth Circuit even held that the Civil
Rights Acts were “not designed to purge the workplace of vulgarity.” Black v.
Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997) (citation omitted).
Here, Ginn made inappropriate comments and jokes while on the job,
but that does not mean his conduct creates a hostile work environment. Although,
Neale argues that Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th
Cir. 2009), suggests the equivalency of “locker room environments” and a hostile
work environment, the facts of that case and this are not comparable. In
Gallagher, the locker room banter was directed at the plaintiff. She was taunted by
her male co-workers, had to rebuff sexual advances, and was called derogatory
names. The co-workers shared photographs of naked women, including their own
girlfriends, while discussing sexual fantasies, telling graphic jokes, and
-6- commenting on their own sex lives. That is a stark difference from Ginn’s actions
in this case. Ginn never made advances toward Neale, never touched her in a
sexual way, did not call her derogatory terms, and did not share intimate details
about his life. Neale even acknowledged the comments were directed toward the
male employees—not her. Ginn’s actions may have been inappropriate and vulgar,
but it did not rise to a level of sexual harassment. Therefore, the circuit court was
correct in granting summary judgment in favor of Ginn. There are no genuine
issues of material fact relating to the existence of a sexually hostile work
environment.
Neale also argues that the circuit court erred by granting summary
judgment for LFUCG because they were her employers. We disagree, given that
KRS 67A.210(1)(h)(7) specifically excludes constitutional officers and their
appointees as “employees” of LFUCG, we must conclude the circuit court’s order
is sound in ruling LFUCG was not Neale’s employer. Neale argues that elected
officials are not considered employers for the sake of the Kentucky Civil Rights
Act, according to Kearney v. City of Simpsonville, 209 S.W.3d 483, 484 (Ky. App.
2006). However, we need not address this issue, as the circuit court was correct in
granting summary judgment for a lack of material facts supporting the merits of the
claim itself. Because Ginn’s actions as described in the complaint and supported
by the record do not support a claim that Ginn created a sexually hostile work
-7- environment, LFUCG cannot be held liable, without regard to whether it was
Neale’s employer.
CONCLUSION
For the foregoing reasons, we affirm the Fayette Circuit Court’s
August 10, 2020 order granting summary judgment on behalf of LFUCG and Ginn.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE LEXINGTON FAYETTE URBAN Shane Sidebottom COUNTY GOVERNMENT: Covington, Kentucky Barbara A. Kriz Lexington, Kentucky
BRIEF FOR APPELLEE GARY GIN:
Cynthia L. Effinger Louisville, Kentucky
Stephen G. Amato Lexington, Kentucky
-8-