488 S.W.3d 568 (Ky. 2016), 2014-SC-000215-DG, Charalambakis v. Asbury Univ.

Court:Supreme Court of Kentucky
Attorney:COUNSEL FOR APPELLANT: Katherine Yunker, Yunker Law, PLC. COUNSEL FOR APPELLEE: Debra H. Dawahare, Leila Ghabrial O'Carra, Wyatt, Tarrant & Combs, LLP.
Opinion Judge:VENTERS, JUSTICE
Party Name:JOHN CHARALAMBAKIS, APPELLANT v. ASBURY UNIVERSITY, ET AL., APPELLEES
Case Date:May 05, 2016
Citation:488 S.W.3d 568
Docket Nº:2014-SC-000215-DG
 
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488 S.W.3d 568 (Ky. 2016)

JOHN CHARALAMBAKIS, APPELLANT

v.

ASBURY UNIVERSITY, ET AL., APPELLEES

2014-SC-000215-DG

Supreme Court of Kentucky

May 5, 2016

         Released for Publication May 26, 2016.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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          ON REVIEW FROM COURT OF APPEALS. CASE NO. 2012-CA-000242-MR. JESSAMINE CIRCUIT COURT NO. 10-CI-00880.

         COUNSEL FOR APPELLANT: Katherine Yunker, Yunker Law, PLC.

         COUNSEL FOR APPELLEE: Debra H. Dawahare, Leila Ghabrial O'Carra, Wyatt, Tarrant & Combs, LLP.

          OPINION

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          VENTERS,  JUSTICE

         Appellant, John Charalambakis, appeals from a decision of the Court of Appeals which affirmed the summary judgment entered in the Jessamine Circuit Court dismissing Appellant's KRS 344.040 wrongful discrimination claim and his KRS 344.280 wrongful retaliation claim brought against his employer, Appellee Asbury University (Asbury). Appellant's lawsuit centered upon allegations that Asbury discriminated against him in an employee disciplinary matter because of his national origin, and then retaliated against him because he attempted to vindicate his rights by filing a complaint with the Kentucky Commission on Human Rights.

         In addition to his argument that the summary judgment was erroneously granted, Appellant argues that his KRS 344.280 retaliation claim is not defeated by either: 1) his failure to attain a successful outcome in his underlying discrimination claim; or 2) his failure to demonstrate that his civil rights claim was filed in good faith.

          The standard of appellate review of a trial court's decision to grant a motion for 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, 43 1 Ky.L.Summary 17 (Ky. App. 1996); CR 56.03. " The trial court must view the evidence in the light most favorable to the nonmoving party, and 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." Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App. 2001) (citing Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991)).

         For the reasons stated below, we affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Construing the factual allegations in the light most favorable to Appellant, the relevant facts are as follows. Appellant, a native of Greece, was hired as an economics professor at Asbury in 1992.1 Asbury

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is a privately-owned Christian college, which consistent with its mission, imposes various religious-based standards of conduct upon its professors and other employees, in addition to the more conventional, secular standards ordinarily found in employee handbooks.

         Appellant was granted tenure in 1996 and promoted to full professor in 2003. Between 1992 and 2007, Appellant was a popular economics professor at Asbury, performing his teaching duties without controversy. In mid-2007, Asbury hired Jon Kulaga as the new provost. Not long after Kulaga's arrival, Appellant alleges that he " made fun" of Appellant's Greek accent by asking him if his students " could understand him." Later, when Appellant expressed a desire to be named as chairman of the economics department, Kulaga responded, " But John, you have an accent." An American-born professor received the appointment.2 On yet another occasion, Appellant complains that Kulaga referred to his Greek accent as " funny." When Appellant, with the support of a student group, sought to be appointed as the group's faculty adviser, Kulaga passed over Appellant and appointed an American-born professor. On that occasion, Kulaga made no specific reference to Appellant's accent or his national origin.

         Although Appellant raised no formal objections when the above-described incidents occurred, the events would later serve as the principal evidence supporting his claim that Asbury discriminated against him in a 2009 disciplinary matter. The disciplinary action arose in connection with business interests Appellant pursued outside his work for Asbury. Appellant was involved in several personal business ventures and nonprofit charitable activities. He employed three former students in his businesses who, in 2009, complained to Kulaga that Appellant was engaged in questionable conduct in the management of his business. They claimed that Appellant failed to pay them for their work; that he broke promises involving pay increases and bonuses; that he rudely berated them; that he failed to pay the payroll taxes withheld from their pay; that he charged personal expenditures to a nonprofit's credit card; and that he was involved in a venture to import wine into the United States in conflict with Asbury's religious policies pertaining to alcohol consumption.

         Another Asbury graduate told Kulaga that Appellant had solicited a substantial sum of money from investors, including the Wesley Biblical Seminary, for a French construction project. The project was never completed, and although Appellant eventually refunded the Seminary's investment, he did not repay other investors. Another allegation brought to Kulaga's attention was that Appellant had misled investors and received substantial contributions in relation to a Greek hospital construction project that was never completed.

         In a letter dated June 17, 2009, alluding to the conduct described above, Kulaga notified Appellant that he had received " information regarding [Appellant's] alleged professional misconduct," serious enough to " merit reconsideration of [Appellant's] continued employment" at Asbury. The letter requested a meeting with Appellant to discuss the allegations. Appellant responded that he would prefer to

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be first informed about the specific allegations and the evidence supporting them.

         In a follow-up letter, Kulaga more specifically outlined the allegations. Appellant responded with a letter saying that the allegations were " entirely baseless; " and that Kulaga's " accusatory tone" and " unsubstantiated allegations" could be construed " as a sort of retaliation for my courageous stands I have take at the institution across the years, and for my having spoken truth to power." Appellant's response included no mention of his national origin as the basis of retaliation. By reply letter, Kulaga asked Appellant to provide information about the pending complaints, including a disclosure of his outside business interests and additional information concerning the wine importing business.

         Appellant provided a limited response to Kulaga's request for information, but he also claimed that some of the information was confidential and would only be provided during an in-person meeting. Appellant requested a meeting with Kulaga and the Faculty Personnel Committee (FPC). Kulaga informed Appellant that his response was insufficient and that the applicable policies contained no provision for involving the FPC at that juncture. Kulaga requested Appellant's full compliance with the earlier request for information so that Kulaga could conclude his investigation of the complaints about Appellant's conduct. Appellant provided the additional information about the wine business and his other business relationships. In his written correspondence, Appellant reminded Kulaga of past allegations against other faculty members, stating: The only difference between these colleagues and me, other than the fact that I have done nothing wrong, is that they are native-born Americans and I am not. I consider this unlawful discrimination. Your unlawful discrimination is evidenced in part by your mocking of my accent, which you have done in the past.

         This letter, coming several months after Kulaga first notified Appellant of the pending disciplinary claims, was the first reference in the discourse to Appellant's national origin. On November 9, Appellant informed an Asbury administrator that he intended to file a civil rights complaint. Two weeks later, on November 24, Kulaga issued his report on Appellant's disciplinary matter.

         Kulaga directed that Appellant would be placed on probationary status for two years, during which time he was not permitted to engage directly or indirectly in outside business activities. Kulaga's report further stated that Appellant's failure to comply with the conditions of probation would result in the immediate termination of his employment at Asbury. Consistent with Asbury's applicable policies, Appellant appealed the decision to the Faculty Appeals Committee, which unanimously affirmed Kulaga's decision. Appellant then formally agreed in writing to abide by the decision, including the prohibition against his participation in outside...

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