Louisville-Jefferson County v. Martin, No. 2007-CA-001629-MR (Ky. App. 6/12/2009)

Decision Date12 June 2009
Docket NumberNo. 2007-CA-001629-MR.,No. 2007-CA-001803-MR.,2007-CA-001629-MR.,2007-CA-001803-MR.
PartiesLOUISVILLE-JEFFERSON COUNTY Metro Government; Ron Bishop, Former Director County Metro Corrections Appellants/Cross-Appellees v. Donna MARTIN; Kelvin Brooks, Sr., Appellees/Cross-Appellants.
CourtKentucky Court of Appeals

Appeal from Jefferson Circuit Court, Honorable Barry Willet, Judge, Action No. 98-CI-002519.

Stephen P. Durham, Kungu Njuguna, Louisville, Kentucky, Briefs for Appellants/Cross-Appellees.

Thomas E. Clay, Louisville, Kentucky, Combined Brief for Appellee/Cross-Appellant Donna Martin.

Craig C. Dilger, Louisville, Kentucky, for Appellee/Cross-Appellant Kelvin Brooks.

Before: DIXON and KELLER, Judges; KNOPF,1 Senior Judge.

NOT TO BE PUBLISHED

OPINION AND ORDER

KELLER, JUDGE:

This case involves considerable procedural history which can be adequately summarized as to both appellees, Kelvin Brooks and Donna Martin. In 1998, Brooks and Martin initially filed a complaint against the Louisville-Jefferson County Metro Government2 (hereinafter Metro), and Ron Bishop as the Director of the Jefferson County Metro Jail and in his individual capacity under the Civil Rights Act of Kentucky, KRS Chapter 344 (KCRA), for racial discrimination and retaliation. Brooks and Martin's joint claims proceeded to trial before a single jury in 1999. The jury verdict was adverse, and they appealed. In an unpublished decision, this Court remanded Brook's claim of disparate impact discrimination against Metro for retrial as well as Martin's claim of retaliation against Metro and against Bishop in his individual capacity. Brooks and Martin v. Jefferson County Fiscal Court, 2003 WL 23005603 (Ky. App. 2003)(1999-CA-000624-MR) (hereinafter Brooks I).

Upon retrial the jury returned a verdict in favor of Brooks and Martin. The court entered a judgment consistent with the verdict and subsequently entered a supplemental judgment in August 2007 awarding attorney fees and costs. However, the circuit court denied injunctive relief in the form of promotion for Brooks and reinstatement for Martin. The damages, fees and costs resulted in an award in excess of one million dollars ($1,000,000.00). Both parties have appealed the various judgments. Additionally, Brooks and Martin filed a motion asking this Court to dismiss the attorney fee portion of Metro's appeal as it failed to name the attorneys as parties. A motion panel of this Court passed that motion to this merit panel.

We will address the eight errors asserted by Metro, and the two errors from Brooks and Martin in their cross-appeal. We turn first to the factual matters that are undisputed and then to Metro's claims followed by the cross-appeal of Brooks and Martin and finally the motion to partially dismiss.

FACTS

Brooks and Martin were employed by Metro to work at the Metropolitan Correctional Services Department, better known as the Jefferson County Jail (hereinafter jail). Brooks was employed as an officer at the jail and Martin was the long-time human resources manager. In 1995, Bishop was appointed as director of the jail, while litigation was ongoing involving the previous director and several members of the staff who alleged sexual harassment and retaliation. This litigation continued well into Bishop's tenure as director and was ultimately settled.

Martin, as a human resources manager, was involved in the investigation and discipline of the alleged harassers due to her position with the jail. She and Bishop disagreed as to the course of action that should be taken to ensure the female employees were not retaliated against. Martin was concerned about the liability of the county and the safety of the jail if conditions among the employees remained volatile. Once she expressed these concerns, she was allegedly subjected to increasing verbal abuse and other forms of harassment by Bishop. Concurrently, Martin began suffering more acutely from an illness known as Post-Polio Syndrome that increased in severity as her employment at the jail continued.

Brooks has a condition particular to African Americans known as Psuedofolliculitis Barbae (PFB). The primary symptoms of PFB are that the skin becomes irritated and inflamed if shaved closely. The policy under Bishop was that officers must be clean-shaven. Brooks was disciplined on numerous occasions and ultimately fired in November 1997 for violation of the shaving policy. He was later re-hired after negotiations in January 1998, however he was not promoted to Sergeant despite scoring in the top five on the promotion examination and satisfactory performance evaluations. Martin, in her role as human resources manager, expressed her concerns regarding Bishop's treatment of Brooks which in turn led to further retaliation and harassment by Bishop, including allegedly referring to her in a derogatory manner as "Ms. ADA" and "Ms. EEOC" during staff meetings.

Martin eventually applied for disability in April 1998 and then filed suit in May of 1998, claiming that because of her disagreements with Bishop regarding the treatment of the female employees and Brooks, she was retaliated against and harassed. After filing the lawsuit, Martin was denied entrance to the jail and her previous office. She was then told to report to Metro's County Personnel Department. The county director of personnel to the jail made phone calls and Martin was eventually told to report back to the jail and resume her duties. At the direction of Bishop, Martin's duties and responsibilities were progressively stripped from her, until she was left with little to do. His harassment of her increased to the point where he disputed the severity of her disability, saying during a meeting, "I don't believe you are as weak as you pretend to be." Martin continue to work for nine months after she filed suit, but eventually she took sick leave and retired.

STANDARD OF REVIEW

Due to the number of issues presented to this Court for review, the standard of review will be examined, when pertinent, as each claim of error is discussed below. As a general principal that bears repeating, absent palpable error "[t]he Court of Appeals is without authority to review issues not raised in or decided by the trial court." Matthews v. Ward, 350 S.W.2d 500 (Ky. 1961); Combs v. Knott Co. Fiscal Court, 283 Ky. 456, 141 S.W.2d 859 (1940); Tipton v. Brown, 273 Ky. 496, 117 S.W.2d 217 (1938); Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).

The reviewing court must consider all evidence favoring the prevailing party as true and is not at liberty to determine the credibility or weight which should be given to the evidence. Lewis v. Bledsoe Surface Mining Co., 798 S.W.2d 459 (Ky. 1990). The reviewing court must draw all reasonable inferences in favor of the claimant, refrain from questioning the credibility of the claimant, and from assessing the weight which should be given to any particular item of evidence. United Parcel Service Co. v. Rickert, 996 S.W.2d 464 (Ky. 1999). The appellate court is required to consider the evidence in the strongest light possible in favor of the opposing party. Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky. App. 1985). After completion of the evidentiary review, the decision must be affirmed unless the verdict rendered is "`palpably or flagrantly' against the weight of the evidence so as `to indicate it was reached as a result of passion or prejudice.'" Lewis v. Bledsoe Surface Mining Co. at 461-62 (Ky. 1990).

ANALYSIS
I. IMPROPER AMENDMENT OF COMPLAINTS

On remand, Brooks and Martin each sought leave to file amended complaints. Metro argues that the trial court abused its discretion by permitting the amendments: (a) they created confusion; (b) resulted in an unpled claim of constructive discharge which was disallowed by this Court; (c) allowed the introduction of evidence of post-complaint conduct that was beyond scope of the complaints; and finally, that (d) Brooks's amended complaint failed to state a claim for which relief could be granted.

Brooks and Martin take issue with Metro's brief as it does not specifically pinpoint for this Court where in the record their objections to the amendments occur.3 We note that Metro filed pre-trial motions in limine objecting to the amended complaints. Further, a review of the record cited, while lengthy and cumbersome, does reflect the arguments of Metro's counsel regarding this issue. Therefore that argument by Brooks and Martin is not well taken.

The standard of review is whether or not the trial court committed error by abusing its discretion in allowing the amendments. Bradford v. Billington, 299 S.W.2d 601 (Ky. 1957); Graves v. Winer, 351 S.W.2d 193, 197 (Ky. 1961). Kentucky Rule of Civil Procedure (CR) 15.01 states that a party may amend his pleading only by leave of court or by written consent of the parties, "and leave shall be freely given when justice so requires." The liberal nature of notice pleading is further outlined in CR 15.02 which addresses allowing amendment at the close of proof and even after judgment, and states in pertinent part:

...[A]mendment of the pleading as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment . . . . If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that admission of such evidence would prejudice him in maintaining his action or defense upon the merits.

Kentucky Rules of Civil Procedure (CR) Rule 15.02.

The amended complaint of Martin does not include new factual averments, and only sought the injunctive relief of reinstatement of her position. Brooks' amended complaint likewise requested injunctive relief via promotion as...

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