Appeals Court Upholds Jury Verdict for Coach Against Asbury University in Retaliation Case
A Kentucky state appeals court has affirmed a jury verdict for a former coach at Asbury University, who sued the university for firing her in retaliation for her claim of discrimination.
As such, plaintiff Deborah Powell will still receive the $380,000 jury award as well as $200,000 in attorneys’ fees.
Powell was hired as the school’s part-time head women’s basketball coach in 2002. A year later, she was named the full-time coach, which included some responsibilities as an intramural coordinator.
In 2008, Asbury terminated Powell’s employment, claiming that it did so because student athletes had complained that Powell was caressing her assistant coach at various times while involved in her coaching duties. The court noted that Asbury is “a Christian school” and that then-Provost Jon Kulaga said that “the student athletes were uncomfortable with Powell’s behavior in their presence.”
Prior to Kulaga, Ray Whiteman was provost at Asbury. Powell filed a gender discrimination grievance against Whiteman, asserting that she was being discriminated against in that she was given extra intramural duties. Asbury contends that these extra duties were a result of her full-time employment.
Powell ultimately sued for discrimination and retaliation. On February 2, 2012, the jury found in favor of Asbury on Powell’s gender discrimination claim, but awarded Powell $380,000 on her retaliation claim. Asbury appealed.
One of the school’s arguments was that an error was made in the jury instruction, which was that “to prevail on her claim of retaliation, Deborah Powell must prove that:
“She engaged in protected activity by complaining about gender discrimination;
She had a good-faith, reasonable basis for her complaints;
She suffered material adverse employment action in connection with her employment;
Asbury University officials responsible for the actions against her were aware of her complaints of gender discrimination;
Her complaining about gender discrimination was a substantial and motivating factor in the adverse employment action; and
But for her complaining about gender discrimination she would not have suffered the adverse employment action.”
In essence, Asbury argued that a finding of retaliation could not be made, if the discrimination claim was denied.
“First, the U.S. Supreme Court makes clear that retaliation is a separate cause of action and requires different proof from status based (i.e., race, color, religion, sex, national origin) claims,” wrote the court. “Kentucky cases also treat retaliation claims separately, see Kentucky Dept. of Corrections v. McCullough, 123 S.W.3d 130 (Ky. 2003). Therefore, we hold that the retaliation claim can go forward even if the underlying discrimination claim fails.
“Second, the Supreme Court in Nassar held that Title VII retaliation claims must be proved according to traditional principles of ‘but-for causation.’”
The court elaborated:
“Deborah Powell’s complaining about gender discrimination was a substantial and motivating factor in the adverse employment action; and but for her complaining about gender discrimination she would have not suffered the adverse employment action.”
Asbury College, Now Asbury University v. Deborah Powell; Ct. App. Ky.; NO. 2012-CA-000653-MR, 2014 Ky. App. Unpub. LEXIS 75; 1/31/14
Attorneys of Record: (for appellant) Debra H. Dawahare, Leila G. O’Carra, Lexington, Ky. (for appellee) Debra Ann Doss, Bryan Begley Daley, Lexinton, Ky.
