Mckissic v. Commonwealth of Ky. Transp. Cabinet

• Decision Date: 19 February 2010
• Docket Number: 2008–CA–002282–MR,2008–CA–002283–MR.,Nos. 2007–CA–002471–MR,s. 2007–CA–002471–MR
• Citation: 334 S.W.3d 885,108 Fair Empl.Prac.Cas. (BNA) 966
• Parties: Ernest McKISSIC, Appellant,v.COMMONWEALTH of Kentucky TRANSPORTATION CABINET; Commonwealth of Kentucky Justice and Public Safety Cabinet, Division of Vehicle Enforcement; and Commonwealth of Kentucky Personnel Board, Appellees.andCommonwealth of Kentucky Justice and Public Safety Cabinet, Division of Vehicle Enforcement, Appellant,v.Ernest McKissic; and Commonwealth of Kentucky Transportation Cabinet; and Commonwealth of Kentucky Personnel Board, Appellees.andCommonwealth of Kentucky Transportation Cabinet; Commonwealth of Kentucky Justice and Public Safety Cabinet; and Commonwealth of Kentucky Personnel Board, Appellants,v.Ernest McKissic, Appellee.
• Court: Kentucky Court of Appeals

334 S.W.3d 885

108 Fair Empl.Prac.Cas. (BNA) 966

Ernest McKISSIC, Appellant,

v.COMMONWEALTH of Kentucky TRANSPORTATION CABINET; Commonwealth of Kentucky Justice and Public Safety Cabinet, Division of Vehicle Enforcement; and Commonwealth of Kentucky Personnel Board, Appellees.andCommonwealth of Kentucky Justice and Public Safety Cabinet, Division of Vehicle Enforcement, Appellant,

v.Ernest McKissic; and Commonwealth of Kentucky Transportation Cabinet; and Commonwealth of Kentucky Personnel Board, Appellees.andCommonwealth of Kentucky Transportation Cabinet; Commonwealth of Kentucky Justice and Public Safety Cabinet; and Commonwealth of Kentucky Personnel Board, Appellants,

v.Ernest McKissic, Appellee.

Nos. 2007–CA–002471–MR

2008–CA–002282–MR

2008–CA–002283–MR.

Court of Appeals of Kentucky.

Feb. 19, 2010.Discretionary Review Denied by

Supreme Court April 13, 2011.

Daniel J. Canon, Louisville, KY, for appellant/appellee Ernest McKissic.Roger G. Wright, Frankfort, KY, for appellant/appellee Commonwealth of Kentucky Justice and Public Safety Cabinet, Division of Vehicle Enforcement.Edwin A. Logan, Frankfort, KY, for appellant/appellee Commonwealth of Kentucky Transportation Cabinet.Before NICKELL and VANMETER, Judges; LAMBERT,¹ Senior Judge.

OPINION

VANMETER, Judge.

These three appeals stem from a single, multi-faceted employment discrimination proceeding heard by the Franklin Circuit Court. We affirm as to Appeal No. 07–CA–002471–MR. We reverse and remand as to Appeals No. 08–CA–002282–MR and No. 08–CA–002283–MR.

Ernest McKissic is an African–American male over the age of forty. In October 2003, while he was employed by the Kentucky Justice and Public Safety Cabinet, Division of Vehicle Enforcement (KVE) as a Motor Vehicle Enforcement (MVE) Officer, McKissic applied for promotion to either of the two available merit positions as sergeant in Shelby or Scott County. See KRS Chapter 18A. McKissic was interviewed for the positions but was not selected for promotion. In November 2003, McKissic filed a discrimination charge with the Kentucky Commission on Human Rights (KCHR) and the Equal Employment Opportunity Commission (EEOC), alleging that he was denied promotion based on race and age. In March 2004, the EEOC closed its investigation of McKissic's claims, finding that it was “unable to conclude that the information obtained establishes violations of the statutes.” He was provided with notice of his right to sue but did not file a claim at that point.

Meanwhile, in December 2003, McKissic filed an administrative appeal with the Kentucky Personnel Board, alleging race and age discrimination. After a two-day evidentiary hearing, the hearing officer found that McKissic failed to show that race or age was “considered in any manner during the promotion process.” In February 2005, the full Personnel Board adopted the hearing officer's recommendations and dismissed McKissic's appeal.

McKissic then filed in the Franklin Circuit Court a joint petition listing as respondents the Kentucky Transportation Cabinet, the KVE, and the Personnel Board. McKissic sought judicial review of the Personnel Board's denial of relief, as well as KRS Chapter 344 damages relating to the alleged violation of his civil rights. In November 2007, the court entered a partial summary judgment dismissing the KRS Chapter 344 claim for damages. The remaining claims were resolved in August 2008, when the court found that substantial evidence did not support the Personnel Board's order. The court therefore vacated the Personnel Board's order and remanded it for rehearing.

The November 2007 partial summary judgment was followed by McKissic's Appeal No. 2007–CA–002471. The August 2008 order was followed by two separate appeals: the KVE and the Personnel Board filed Appeal No. 2008–CA–002282–MR, while the Transportation Cabinet, the KVE and the Personnel Board filed Appeal No. 2008–CA–002283–MR.

APPEAL NO. 07–CA–002471–MR

McKissic appeals from the trial court's partial summary judgment dismissing his KRS Chapter 344 civil rights claim for damages, asserting that his action was not barred by either the doctrine of election of remedies, or the doctrine of res judicata. As we conclude that the trial court properly found that the action was barred by McKissic's election of remedies, we need not address the res judicata issue.

Summary judgment shall be granted only 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 a judgment as a matter of law.” CR ² 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, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991). Further, “a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Id. at 482. On review, the appellate court must determine “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).

State executive branch employees such as McKissic are protected by KRS 18A.095(12),³ which permits “[a]ny classified employee [to] appeal to the [Personnel] board an action alleged to be based on discrimination due to race ... or age forty (40) and above.” Such proceedings must be conducted in accordance with the administrative hearing provisions set out in KRS Chapter 13B. See KRS 18A.095(17). Further, any state employee may file with the KCHR, “in accordance with KRS Chapter 344[,]” a complaint alleging race or age discrimination. KRS 18A.095(12). See also KRS 344.025 (“[n]o provision in KRS Chapter 18A shall be construed to preclude any classified or unclassified state employee from appealing to the personnel board any action alleged to be in violation of laws prohibiting” age or race discrimination).

In addition to the protections afforded to state executive branch employees by KRS Chapter 18A, KRS Chapter 344 establishes alternative administrative and judicial avenues for seeking damages resulting from civil rights violations. See KRS 344.200 and 344.450. See also Vaezkoroni v. Domino's Pizza, Inc., 914 S.W.2d 341, 342 (Ky.1995). However, an employee seeking damages must elect which avenue to pursue. KRS 344.270 states:

The provisions of KRS 13B.140⁴ notwithstanding, commission⁵ shall not take jurisdiction over any claim of an unlawful practice under this chapter while a claim of the same person seeking relief for the same grievance under KRS 344.450 is pending. A state court shall not take jurisdiction over any claim of an unlawful practice under this chapter while a claim of the same person seeking relief for the same grievance is pending before the commission. A final determination by a state court or a final order of the commission of a claim alleging an unlawful practice under KRS 344.450 shall exclude any other administrative action or proceeding brought in accordance with KRS Chapter 13B by the same person based on the same grievance.

Vaezkoroni reaffirmed that KRS Chapter 344 provides alternative administrative and judicial sources of relief. 914 S.W.2d at 342 (quoting Meyers v. Chapman Printing Co., 840 S.W.2d 814, 820 (Ky.1992)). Thus, civil rights claimants must elect between potential remedies, and a state court may not exercise jurisdiction over a KRS Chapter 344 claim involving the same person and grievance as an action pending before a civil rights commission. KRS 344.270. Similarly, a civil rights commission may not exercise jurisdiction over a KRS Chapter 344 claim involving the same person and grievance as a civil rights damages action pending before a state court. KRS 344.270. Further, no person may make a KRS Chapter 13B administrative claim once a KRS 344.450 civil rights damages claim, involving the same person and grievance, is finally resolved by a state court or civil rights commission. KRS 344.270.

The election of remedies in civil rights proceedings was addressed by this court, sitting en banc, in Brown v. Diversified Decorative Plastics, LLC, 103 S.W.3d 108 (Ky.App.2003). This court clarified that “[u]nder Kentucky law, the doctrine of election of remedies ‘means that when a person has at his disposal two modes of redress, which are contradictory and inconsistent with each other, his deliberate and settled choice and pursuit of one will preclude his later choice and pursuit of the other.’ ” Id. at 113 (quoting Collings v. Scheen, 415 S.W.2d 589, 591 (Ky.1967)). Thus, parties who initiated but then withdrew civil rights commission complaints, without pursuing the administrative actions, were not prohibited from subsequently seeking judicial relief based on the same allegations of civil rights violations. Brown, 103 S.W.3d at 113. Cf. Young v. Hammond, 139 S.W.3d 895, 903 (Ky.2004) (election of remedies doctrine did not bar circuit court claim where EEOC file was closed and claimant did not file complaint with any state agency other than circuit court). See also Wilson v. Lowe's Home Ctr., 75 S.W.3d 229 (Ky.App.2001); Clifton v. Midway College, 702 S.W.2d 835 (Ky.1985); Canamore v. Tube Turns Div. of Chemetron Corp., 676 S.W.2d 800 (Ky.App.1984).

The majority opinion in Brown specifically distinguished the facts before it from the situations presented in cases such as Vaezkoroni, 914 S.W.2d 341, and Founder v. Cabinet for Human Resources, 23 S.W.3d 221 (Ky.App.1999), each of which involved the dismissal of a circuit court action filed either after a civil rights commission's dismissal of a claim on its merits, or while a claim was pending before such a...