Mcbrearty v. Kentucky Commu. Tech. College, 2006-CA-002621-MR.

CourtCourt of Appeals of Kentucky
Citation262 S.W.3d 205
Docket NumberNo. 2006-CA-002621-MR.,2006-CA-002621-MR.
Decision Date22 August 2008

Jenean McBrearty, Lexington, KY, pro se.

James D. Cockrum, Griffin Terry Sumner, William F. Becker, Louisville, KY, for appellee.




Jenean McBrearty (McBrearty) appeals the dismissal of all pending claims by McBrearty against Kentucky Community and Technical College Systems (KCTCS)1 by the Honorable James Ishmael, Jr., Judge, of the Fayette County Circuit Court. Finding no error, we affirm.

The facts of the case are undisputed. McBrearty signed an eleven-month tenure-track teaching contract with KCTCS with an express term of August 1, 2005, through June 30, 2006. Professor Hossein Motamedi (Motamedi), a colleague, emailed McBrearty and requested that she include an opinion poll in her upcoming course. McBrearty declined. In the following few months, McBrearty would continually refuse to include the poll which resulted in a personality conflict with Motamedi. Multiple discussions about the poll occurred in the first few months of McBrearty's employment. In September 2005, McBrearty delivered a memo to Dean Sandra Carey and President Jim Kerley. In this memo she complained about numerous coworkers,2 including the multiple discussions over the poll, demanded that "this institution stop harassing me," and said she considered the continuing harassment a hostile work environment.

McBrearty learned that KCTCS would not renew her teaching contract in December 2005. McBrearty sought the appeal process offered by the KCTCS Senate Advisory Committee on Appeals and claimed that her complaints against coworkers were complaints for discrimination and, thus, the non-renewal of her contract constituted retaliation and illegal behavior. After reviewing the documents presented and interviewing multiple colleagues, the Senate Advisory Committee upheld the non-renewal of McBrearty's contract on February 24, 2006.

In protest of the non-renewal of her contract, McBrearty posted two cartoons on the entry way to her office suite in January 2006. These cartoons faced the public hallway. One depicted McBrearty with a crutch3 under the words "Bluegrass College Firing the Handicapped." The other cartoon depicted two figures dressed in hooded robes4 with the labels of "Kerley"5 and the "HLSS Dept."

McBrearty went to work on January 18, 2006,6 to find that the cartoons had been removed. Claiming to fear for her safety, she flagged down a KCTCS security officer, which in turn contacted the University of Kentucky Police. Upon entering the office, McBrearty found a note written by Dean Carey, stating that she had "removed the inappropriate and unacceptable signs from your door. Please refrain from displaying inappropriate and/or unacceptable signs in a public space." McBrearty filed a complaint with the officer and the officer issued a uniform citation for "theft by unlawful taking" against Dean Carey; no further action was taken on the matter.

Shortly thereafter, on Monday, January 23, 2006, President Kerley asked to meet with McBrearty. During this meeting McBrearty was asked to resign. Upon refusal, McBrearty was told to pack up her things and not to return to campus. By letter dated January 25, 2006, KCTCS notified McBrearty that she had been put on paid administrative leave, with full benefits, up to the contract term expiration date.

On February 2, 2006, McBrearty filed a charge with the Equal Employment Opportunity Commission (EEOC), claiming sex discrimination, disability discrimination, retaliation in violation of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. On April 7, 2006, the EEOC determined that McBrearty's complaint and the information provided did not result in any violation of statute.

On May 26, 2006, McBrearty filed a 94-paragraph complaint alleging both twelve (12)7 causes of action against KCTCS and five (5) against KCTCS employees.8 On September 18, 2006, each defendant timely filed a Kentucky Rules of Civil Procedure (CR) 12.02 motion to dismiss and attached eleven (11) exhibits in support of their motions. McBrearty opposed the motion and filed a cross-motion for summary judgment wherein she attached twenty-six (26) exhibits. After holding three hours of oral argument on November 29, 2006, the trial court dismissed all pending claims.

On December 21, 2006, McBrearty filed a Notice of Appeal wherein she identified the appellee as Kentucky Community and Technical College System, et al. On February 9, 2007, KCTCS and each individual defendant moved to dismiss the appeal. This Court ruled in its order of April 17, 2007, that the individual defendants were not parties to this appeal due to the designation of et al. That order left the decision of whether the parties are indispensable parties to this panel.

KCTCS argues that the failure to join the individual defendants mandates a dismissal of the appeal as the individual defendants are indispensable parties. Their argument is based on the complaint, with each count listing not only KCTCS but also an individual defendant. Further, the individual defendants were sued in their individual and official capacities. KCTCS points out that all wrong doing complained of by McBrearty was always by an individual defendant. KCTCS argues that allowing the appeal to go forward might result in inconsistent obligations between KCTCS and each individual defendant, in that regardless whether affirmed or remanded, only KCTCS would be bound.

McBrearty argues that the parties are not indispensable as KCTCS's insurer would ultimately be liable for any damages. McBrearty also argues that such a small thing as adding names should not be a reason to dismiss an appeal, especially given that she is pro se. She cites to Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) for support that pro se litigants should be held to less stringent standards in formal pleadings than those drafted by a lawyer. McBrearty argues this "lesser standard" gives this court the basis to grant her cross-motion to vacate the order denying appellant leave to amend pre-hearing statement and to join the individual defendants in the appeal.

McBrearty's reliance on Haines is misplaced. We require pro se litigants to follow the Kentucky Rules of Civil Procedure. "It is well-established that failure to name an indispensable party in the notice of appeal results in dismissal of the appeal." Slone v. Casey, 194 S.W.3d 336, 337 (Ky.App.2006) citing to City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990); CR 19.02. The failure to name an indispensable party in the notice of appeal is more complex than a simple adding of the names; this is considered a jurisdictional defect. See City of Devondale, 795 S.W.2d at 957.9 It is a simple maxim of the law that without jurisdiction, a court cannot proceed. For purposes of appeal, a person is a necessary party if the person would be a necessary party for further proceedings in the circuit court if the judgment were reversed. Land v. Salem Bank, 279 Ky. 449, 130 S.W.2d 818 (1939); Hammond v. Department for Human Resources, 652 S.W.2d 91 (Ky.App.1983). We agree with KCTCS that the individual defendants are indispensable parties, as a remand back to the trial court could result in inconsistent obligations by either KCTCS or the individual defendants to McBrearty. While the failure by McBrearty to join the individual defendants, taken alone, is sufficient to dismiss this appeal, we shall nevertheless continue and address the arguments made by McBrearty.

We turn to the merits of the appeal. McBrearty argues that the granting of defendants' motion to dismiss was error. KCTCS argues that the trial court properly granted the motion to dismiss.

When presented a CR 12.02 motion to dismiss the court must take every well-pleaded allegation of the complaint as true and construe it in the light most favorable to the opposing party. Gall v. Scroggy, 725 S.W.2d 867 (Ky.App.1987). As such, "[t]he court should not grant the motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of his claim." Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801 (Ky.1977).

If the trial court considered matters outside the pleadings, the motion to dismiss will be treated as one for summary judgment. CR 12.02. In the case sub judice, the court clearly considered matters outside the pleadings. Therefore, our review will be that of the granting of a summary judgment.

The standard of review on appeal of a 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 (Ky.App.1996). Since summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky.App.2001).

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." CR 56.03. The trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). Thus, summary judgment is proper only "where the movant shows that the adverse party could not prevail under any...

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