Louisville Keeps Winning, This Time on Appeal of Wrongful Termination Case
A Kentucky state appeals court has reversed a lower court and found in favor of the University of Louisville Athletic Association, Inc. (ULAA), which was sued by the former assistant men’s and women’s track and field coach in a wrongful termination action.
Specifically, the court found that plaintiff Mary Banker failed to demonstrate that ULAA’s otherwise “legitimate” rationale for firing her was mere “pretext” for a nefarious rationale.
Banker entered into a one-year employment contract with ULAA for the aforementioned post in September 2007. The contract was for a nine-month term beginning September 5, 2007, and ending June 30, 2008, and it included a non-renewal notification deadline of April 30, 2008.
Over the course of her employment, Banker claimed to have been subject to gender and sexual discrimination. On April 22, 2008, she made an oral complaint to Malinda Durbin, the University Affirmative Action/Sexual Harassment Officer in the Human Resources Department, who instituted an investigation of her claims. On May 15, 2008, ULAA head men’s and women’s track and field coach, Ron Mann (Coach Mann), notified Banker that ULAA had decided not to renew her contract, a decision that had been at least contemplated on April 16, 2008. The following day, Banker sent an e-mail to Coach Mann and ULAA Executive Senior Associate Athletic Director Julie Hermann stating her assumption that her termination was in retaliation for the HR investigation.
On August 6, 2008, Banker filed a multi-count complaint against ULAA and ULAA Athletic Director Tom Jurich seeking damages related to her employment and termination. She alleged causes of action for gender discrimination, retaliation, and hostile work environment pursuant to the Kentucky Civil Rights Act (KCRA), Kentucky Revised Statutes (KRS) Chapter 344, as well as for breach of contract, breach of implied covenants of good faith and fair dealing, public policy wrongful discharge, and intentional infliction of emotional distress. Banker sought compensatory damages for past and future lost wages and benefits, and for emotional distress, mental anguish, humiliation, and embarrassment.
A jury trial was held in the fall of 2010, where all the claims against the defendants were dismissed except for Banker’s retaliatory discharge claim. After siding with the plaintiff, the jury awarded $300,000 in damages for mental and emotional distress for retaliation as well as $71,875 in lost wages, the full amount she had requested.
On May 31, 2011, ULAA appealed, arguing that Banker did not present sufficient proof to support a retaliatory discharge verdict, the recovery of lost wages, or the award for damages for emotional distress.
Banker’s claim for retaliation arises under KRS 344.280 of the KCRA, which “is virtually identical to the Federal Civil Rights Act of 1964.” Thus, the court turned to the burden shifting formula set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once the plaintiff establishes a prima facie case, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. at 802. If the employer meets this burden, “the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981).
Pertinent to the instant case was Clark County School Dist. v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). “The policy reasons behind the decision in Breeden include that an employer should not be put at the mercy of an underperforming or unqualified employee, who could see the writing on the wall and make a complaint so as to be put in a protected position against termination,” held the appeals court. “It would be wholly unjust to put employers in such situations. On the other hand, employees have the right to engage in protected conduct and not to be retaliated for it. Breeden balances these considerations and provides a solid framework to evaluate cases such as the present one.”
The panel continued: “Based upon the undisputed proof, even in a light most favorable to Banker and giving her every fair and reasonable inference that can be drawn from the evidence presented, ULAA proved that Ms. Hermann and Coach Mann had contemplated, if not decided, not to renew Banker’s contract prior to Banker’s complaint to HR. Therefore, pursuant to the holding in Breeden, Banker cannot prove the causal connection element between her protected activity and the decision to terminate her in order to establish her prima facie case of retaliation. Accordingly, the circuit court erred as a matter of law when it denied ULAA’s motion for a JNOV because the cause of action should never have been permitted to go to the jury for a decision. We therefore must reverse the circuit court’s judgment.
“Even if we were to hold that Banker met the first prong of the McDonnell Douglas burden shifting formula, her claim would nevertheless fail because she failed to present any evidence that ULAA’s stated reasons for its decision not to renew her contract were pretextual. Had Banker established the first prong of the three-part formula, the burden would have been on ULAA to establish a legitimate, nondiscriminatory reason for her discharge. ULAA bore ‘only the burden of production and this involve[d] no credibility assessments.’ Woods v. Western Kentucky University, 303 S.W.3d 484, 487 (Ky. App. 2009) (quoting Reeves v. Sanderson Plumbing Prods, Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000)).
“Here, ULAA offered a variety of reasons for contemplating a decision to terminate Banker prior to her complaints to HR. These reasons included, inter alia, Banker’s failure to sign more than one student-athlete to compete in multi-events for ULAA; Banker’s failure to make a sufficient number of recruiting telephone calls; Banker’s disagreement with ULAA’s ‘combined team’ approach; regression of athletes’ objective athletic measurements; an athlete calling Banker the worse coach she had ever had; and Banker’s delay in drafting and delivering a multi-event athletes’ ‘annual plan’ to the strength and conditioning staff. Thus, the undisputed evidence shows that ULAA’s actions were supported by legitimate nondiscriminatory reasons.
“Once ULAA met its burden by providing evidence to establish that it had legitimate, nondiscriminatory reasons to support the decision to terminate Banker’s contract, Banker … needed to demonstrate that ULAA’s reasons were pretextual by showing ‘(1) that the proffered reason had no basis in fact, (2) that the proffered reason did not actually motivate [the employment decision], or (3) that the proffered reason was not sufficient to motivate [the employment decision].’ Woods, 303 S.W.3d at 487 (quoting Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir. 2000)).
“Banker failed in her burden of proof regarding pretext. She did not present any proof that the legitimate reasons articulated by ULAA did not motivate its decision to terminate her contract. Therefore, even assuming she proved causation, Banker has failed to present evidence to prove pretext.”
University of Louisville Athletic Association, INC., v. Mary Banker and Bryan M. Cassis; Ct. App. Ky.; NO. 2011-CA-001436-MR; 2013 Ky. App. LEXIS 19; 2/1/13
Attorneys of Record: (for appellant) Craig C. Dilger, Jeffrey A. Calabrese, Louisville, Kentucky. (for appellees) Bryan M. Cassis, Louisville, Kentucky.
