Kentucky Personal Injury Lawyer Blog

In January of 2010, the Kentucky Court of Appeals heard a case involving a group of plaintiffs that filed suit against their employer for being injured as a result of breathing in carbon monoxide. The case is Asher v. Unarco Material handling, Inc., 2010 WL 718850 (Crt.App. 2010). In Asher the facts are as follows.
The plaintiffs are current and former employees of a Wal-Mart where they claimed during a two week period in November and December of 2005 they were exposed to carbon monoxide gas from an enclosed freezer section. Id. The district court dismissed the claims of a new group of plaintiffs as time barred since they filed after a one year statute of limitations. Id. The new group of plaintiffs argued that their claim should ‘relate back’ to the original filing of the lawsuit and be allowed. The Court did state that “an amendment which adds a new party creates a new cause of action and there is no relation back to the original filing for purposes of limitations.” (cites omitted). Id.
Secondly, the new plaintiffs don’t really argue the ‘discovery rule’ which if they had, this Court would still not have allowed their lawsuit because it was untimely. The discovery rule is allowed when the injuries to the person are latent. For example, when a person is injured but the injury does not manifest until many years later. Under the discovery rule, the plaintiff/injured party would be able to bring a lawsuit after the statute of limitations has run because of the latent nature of his/her injuries. But, unlike other cases that have allowed this discovery rule to be used, in the case at hand, the new plaintiffs conceded that their injuries from carbon monoxide exposure manifested immediately. Id. “Kentucky law is clear that, absent a latent injury, the statute of limitations begins to run on the date the injury is inflicted even where the injury is slight initially and its full extent is not known until years later.” (cites omitted). Id.
Accordingly, this appellate court sustained the lower court’s rulings and dismissed the case as to the new plaintiffs that tried to join the lawsuit late.
If you have been the subject of a Louisville personal injury matter, please call and speak to a Louisville personal injury attorney at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week. For cases in Florida visit Broward Injury Attorneys.
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In February of 2009, the Kentucky Court of Appeals heard a case involving a stepchild whose father had passed away. Louisville personal injury attorney Andrew S. Alitowski explains that the issue in this case was whether the stepchild who had not been legally adopted was entitled to recover a share of the damages under Kentucky’s wrongful death statute? The case is Davis v. Johnson, 295 S.W.3d 841 (Crt.App. 2009), which held that the non-adopted child was not entitled to any of the monies. The facts are as follows.

In Davis, Mr. Clarence Davis died on February 20, 2003. Id. A wrongful death claim resulted in a $5 million award to his heirs. Id. Under Kentucky law, his children were entitled to share equally in one-half the net proceeds. Id. At the time of his death, Mr. Davis was married to Mrs. Kathy Davis. Ms. Nicole Johnson was the daughter of Mrs. Davis and Mr. Davis “acted as a father to her since her birth, although he never legally adopted her.” Id.

The original court ruled that Ms. Davis was not entitled to the monies. She appealed and that court ruled that she was. So then the case was appealed again and this time the Kentucky Court of Appeals ruled that she was not entitled to the monies.

The Court looked at the wrongful death statute and who was entitled to monies. The statute refers to “children” as some of the people that can inherit. The defendants point out the difference in the duty of support owed by a stepparent to an adopted child as opposed to an unadopted stepchild. Absent an adoption, stepparents have no duty to support stepchildren in the event of a divorce. (cites omitted). Id.

The plaintiff argued that Mr. Davis did support her with education, financially and with emotion support. Id. Plaintiff also argued and showed the court how in other facets of the legal world, stepchildren, even if not adopted, were entitled to some benefits when a parent died. For example in a worker’s compensation case or inheritance taxes. Id.

But, the Court did not buy this argument. In each of the above matters, the legislative body specifically put in the provisions to allow a stepchild those rights. And, in the case at hand, the wrongful death statute did not. And so the Court concluded that they intentionally left them out and thus the Court could not stretch the law and allow the plaintiff to recover.

And finally, the Court took a survey of other jurisdictions around and found that non had revealed any case holding that an unadopted stepchild may recover under the state’s wrongful death statute except in a few states.

If you have been the subject of a Louisville race discrimination matter, please call and speak to a Louisville race discrimination lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

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In January of 2009, the United States District Court for the Eastern District of Kentucky decided a case that involved a racial discrimination and retaliation lawsuit. In Singleton v. Select Specialty Hospital-Lexington, Inc., 2009 WL 192577 (E.D.Ky.), the facts are as follows. Mr. Singleton is an African American male who worked for one of the defendants as a RN. Id. This case involved a few plaintiffs and two defendants. One of the defendants provided overflow services to the other defendant if and when they needed more staff to help cover their facility. And one of the things the facility could do is at the last minute “call off” a particular nurse for a shift if a nurse was not needed. In August of 2005, Mr. Singleton on one occasion brought this up to his supervisor claiming he should not have been called off and the supervisor agreed and said it would not happen again. Id. Also, in November of 2005, Mr. Singleton heard one of the employees talking about “blacks.” Id. And he complained about this. Id. And in February of 2006, Mr. Singleton again complained of the ‘calling off’ procedure and said it was not racially fair that more African-American workers were being called off as compared to Caucasian workers. Id. Then in March of 2006, Mr. Singleton had an incident with the dispensing of some drugs.

Another plaintiff, Ms. Robinette, who was of Chilean descent, was hired as an LPN in November of 2006. Id. She spoke perfect English and Spanish. She kept her Chilean background a secret and claims when her boss found out about it, she began to be treated differently. Id.
Another plaintiff, Ms. Spencer, who is African-American, was hired by Select as a CNA. Id. She claims she was overheard speaking about religion and homosexuality with another employee at work. Id. This is in violation of the work policy. Id. Ms. Spencer did not understand why, and when she questioned it, she was suspended for two days.
Then there were plaintiffs Hall, Jackson and Logan. These plaintiffs are grouped together because their claims are for racial hostile work environment when they overheard some workers saying racially derogatory jokes and comments. Id. Hall and Jackson also claimed that one of the defendants was selectively enforcing the dress code against African American employees. Id.

These matters were all consolidated by the court for trial purposes. The plaintiffs filed race discrimination claims under Title VII and 42 U.S.C. Section 1981 as well as retaliation claims. Id. The Court ruled that the plaintiffs did not show any direct evidence, so they would have to prove their cases with circumstantial evidence. Id. In looking at the evidence, in order to prove a claim of hostile work environment, the plaintiffs must show that “1) she was a member of a protected class; 2) she was subjected to unwelcome harassment; 3) the harassment was based on sex or race; 4) the harassment created a hostile work environment; and 5) employer liability.” Id. In doing so, in a circumstantial evidence case, the court will use a ‘totality of the circumstances’ approach to determining if a hostile work environment existed. Id. The Court will look at the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee’s performance. (cites omitted). Id. And so the Court looked at all the evidence and held that the plaintiffs did not provide enough evidence to sustain such a claim.
Next, some of the plaintiffs brought a Section 1981 and Kentucky Civil Rights Act action for retaliation for reporting racial discrimination. Id. To maintain the claim for retaliation, “a plaintiff must prove that 1) she engaged in Title VII protected activity, 2) defendants knew she engaged in the protected activity; 3) defendants subsequently took an adverse employment action against her; and 4) the adverse action was causally related to the protected activity.” (cites omitted). Id. The Court indicated that ‘temporal proximity’ was something to be considered. Temporal proximity is when an adverse employment action occurs very close in time after an employer learns of a protected activity. Id.

Once a plaintiff establishes her prima facie case, then the employer has an opportunity to give a legitimate nondiscriminatory reason for its actions. Id. Then the plaintiff has the burden to show that the actions by the defendant were pretextual. “An employee proves pretext by showing either the proffered reason: 1) has no basis in fact; 2) did not actually motivate the adverse employment action; or 3) was insufficient to warrant the adverse action.” (cites omitted). Id.

“If an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretext by showing the employer was ultimately incorrect.” (cites omitted). Id. “The key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” (cites omitted). Id. The Court on this issue decided that one of the plaintiffs had shown enough for retaliation but two others had not.

And finally on the racial discrimination claims, the Court held, to state a prima facie case for racial discrimination a plaintiff must show 1) she is a member of a protected group, 2) she was subject to an adverse employment decision, 3) she was qualified for the position, and 4) she was replace by a person outside of the protected class (or that she was treated differently than similarly situated non-protected employees. Id. As to these claims, for all plaintiffs their claims failed because they could not show that the defendant’s reasons were pretextual and not legitimate. Id. All the plaintiffs were fired for doing something wrong at their job and since none of the plaintiffs brought forward any evidence showing these actions to be pretextual, the Court granted the motion to dismiss on these counts.

This case goes to show how hard it is for plaintiff to win a racial discrimination case. The burden of proving a prima facie case is steep. And it is not enough to say the employer did this or did that once or twice. It has to be severe and pervasive. As some of the case law says, the courts are not there to be the “civility police.” And this I know is very unfortunate. As some other case law says, there is harassment and then there is discriminatory harassment. So, I hope that if you are being harassed at work or discriminated against that you take from these cases something. That you learn to document things. That you keep a paper trial as to what is going on and that if things get really bad, that you contact a harassment or discrimination lawyer.

If you have been the subject of a Louisville race discrimination matter, please call and speak to a Louisville race discrimination lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

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In November of 2007, the Court of Appeals of Kentucky decided a case that involved racial discrimination. In Smith v. Cabinet for health and Family Services, 2007 WL 3226573 (Ky.App.), the appellate court upheld the lower trial court’s rulings of summary judgment in favor of the defendant. Id. In Smith, Ms. Smith worked for the defendant in the Central Intake. She had some educational background but did not have a Master’s Degree. Id. She began working for the defendant in June of 2000. Over the course of many years she applied for different jobs but never got them. In December of 2002 she applied for one job, but that job really wanted someone that had a Masters’ Degree and so Ms. Smith did not get the job but a Caucasian female with a Master’s Degree did get it. Id. Also in December of 2002 Ms. Smith applied for another job that an Arab-American woman received over her. Id. In June of 2003, Ms. Smith applied for another job that again a Caucasian female with a Master’s Degree received over her. Id. So, finally in January of 2005, Ms. Smith filed her complaint in Fayette Circuit Court alleging intentional and illegal racial discrimination. She sued under the Kentucky Civil Rights Act. Id. “An employee claiming racial discrimination in hiring and promotion must demonstrate, by a preponderance of the evidence, the following: i) that he belongs to a racial minority; ii) that he applied and was qualified for a job for which the employer was seeking applicants; iii) that, despite his qualifications, he was rejected; and iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. Id. The employee must show that the rejection is not attributable to “the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought.” Id.

An employer does not illegally discriminate when it chooses, for nonracial reasons, one equally qualified candidate over another, much less when one lacks the necessary announced qualifications as did Ms. Smith. Id. So long as its reasons are not discriminatory, and employer is free to choose among qualified candidates. Id.

A plaintiff has two means of proving intentional racial discrimination, either by direct evidence of discrimination or by circumstantial evidence from which discrimination can be inferred. (cites omitted). Id. Once a plaintiff has done this, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its decisions. Id. Then, the minority employee is given an opportunity to show that the employer’s nondiscriminatory reason is only a pretext. Id.
The Court stated that Ms. Smith did not put forth any ‘direct’ evidence. She tries to argue that she put forth enough circumstantial or indirect evidence of discrimination to create a question of mixed motives as to the defendant’s refusal to promote or laterally transfer her. Id. But, the Court found that she did not even do that. The Court stated that “an obvious disparity in qualifications which favored Ms. Smith would be evidence that the nondiscriminatory reasons were pretextual. Id. But, Ms. Smith could not show that such disparity existed.

If you have been the subject of a Louisville race discrimination matter, please call and speak to a Louisville race discrimination lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

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In September of 2007, the United States District Court for the Eastern District of Kentucky decided a case that involved a racial discrimination lawsuit. In Couch v. American Woodmark Corp., 2007 WL 2668694 (E.D.Ky.), the facts are as follows. Ms. Couch was hired by the defendant in 2002 as a “Plant Buyer/Lumber Clerk.” Her job was to handle purchasing as well as “keying-in” all lumber received by the plant. Id. On April 14, 2006, Ms. Couch was absent from work and the following day when she returned, she got into a verbal altercation with her boss because she no longer wanted to do the “keying-in.” Id. On April 18, 2006, Ms. Couch again did not want to do the “keying-in” and this time she told it to the defendant’s human resources corporate manager. Id. As a result, the plant manager looked into Ms. Couch’s personnel file and discovered that she had been written up before in 2004 and that part of that write said that she was informed that “any further incidents would result in termination.” Id. Based on this, Ms. Couch was fired on May 10, 2006. Id.

On October 17, 2006, Ms. Couch filed her complaint alleging gender discrimination under the Kentucky Civil Rights Act. Id. The defendant removed the case to federal court and sometime later filed the motion for summary judgment asking the court to dismiss the racial discrimination lawsuit. This Court granted the motion for the following reasons.

The Kentucky Civil Rights Act (KCRA) and Title VII prohibit employers from discharging, or otherwise discriminating against, an individual with respect to compensation, terms, conditions, or privileges of employment because of race, color, religion, sex, or national origin. Id. “To set for a prima facie case of gender discrimination, a plaintiff must show that: (1) she is a member of a protected class; (2) she is qualified for her job; (3) she suffered an adverse employment action; and (4) she was replaced by a person outside her protected class, or similarly situate non-protected employees were treated more favorably. Id. If Ms. Couch satisfies this burden, it then shifts to the defendant to give a non-discriminatory reason for the adverse employment action. Id. If the employer does this then the plaintiff has the burden of showing that such an act was pretextual for what is actually unlawful racial discrimination. id.

The defendant states that it fired Ms. Couch for a legitimate reason. It fired her for insubordination. Id. To satisfy her burden, Ms. Couch must “do more than simply impugn the legitimacy of the asserted justification for her termination.” She “must produce sufficient evidence from which a jury may reasonably reject American Woodmark’s explanation.” (cites omitted). Id. And the Court found that she could not do this. Ms. Couch was fired for insubordination and none of the evidence, even the statistical evidence was good enough for this Court. Id. Ms. Couch tried to argue that the defendant had more men than women in management positions in the company. Id. The Court stated that Ms. Couch’s “statistical evidence has insufficient probative value to support a jury verdict on the ultimate question of discrimination. The mere fact that there are more men than women in management at American Woodmark does not support Ms. Couch’s contention that she was discriminated because of her sex or that American Woodmark’s stated reason for her termination was pretextual.” Id.

The Court did state that Ms. Couch failed to offer any evidence – statistical or otherwise- demonstrating that she would not have been fired if she had been a male. Id. And this is a good point. In these types of gender discrimination cases, the courts do look and do need evidence showing that the company defendant did treat the (in this case female) employee different than if she was a male employee. And that is what potential employee discrimination clients need to understand.

Also, “the Sixth Circuit has held in the context of discipline for violating employer rules that “an employer may successfully rebut any prima facie case of disparate treatment by showing that it honestly believed that the employee committed the violation.” (cites omitted). Id. Ms. Couch did not offer any evidence to rebut the defendant’s legitimate non-discriminatory reason for her termination. Id. Accordingly, Ms. Couch’s race discrimination case was dismissed.

If you have been the subject of a Louisville race discrimination matter, please call and speak to a Louisville race discrimination lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

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Recently, in February of 2010, the United States District Court for the Western District of Kentucky heard a case regarding unpaid overtime and nonpayment of wages for travel time. (See Bassett v. Tennessee Valley Authority, 2010 WL 716094 (W.D.Ky.)). In Bassett the Plaintiff worked on a dredging crew from 1987 to 2008. Id. Plaintiff was paid overtime for time he spent traveling to and from work sites and was also given a per diem amount for each day he worked on an outside location. Id. But, if he chose to travel away from the remote work site on a day off, the Defendant did not provide per diem or compensation for what Defendant considered “voluntary travel time.” Id. Thus, Plaintiff has sued Defendant to “recover compensation for time spent in travel on his days off. Plaintiff would travel home on the weekends when he was working at a remote site. He was compensated for his mileage to travel home and back to the work site, but not for the time spent in travel.” Id.

The Fair Labor Standards Act required employers to pay overtime to employees who work in excess of 40 hours. Id. Under the Portal-to-Portal Act of 1947, an employer may be liable for travel if the employer has agreed to compensation under “an express provision of a written or non-written contract in effect, at the time of such activity…” id. The Plaintiff and Defendant had such a contract in effect. But, Defendant points out that “liability exists only if the travel time is considered “work” under the FLSA. Id. And that is only compensated if it is ‘integral and indispensable to the principal activity.’ Id. “Normal travel from home to work is not work time.” Id. This is exactly what Louisville overtime lawyer Andrew Alitowski could explain to you.
The Court noted that the present case was a little different than the average case in that it dealt with ordinary home to work travel that was from remote locations where if the Plaintiff did not decided to spend at this remote location, he would have had to sleep away from home. The Court did note that “travel at the employee’s own option and for his or her sole convenience need not be considered hours worked under the FLSA.” Id.

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In June of 2007, the United States District Court for the Western District of Kentucky heard a case involving a slip and fall accident. (See Mitchell v. Flying J Inc., 2007 WL 1959174 (W.D.Ky.)). In Mitchell, Mr. Mitchell slipped and fell while in a store. Mr. Mitchell was a truck driver and entered to go to the restroom and get a cup of coffee. Id. He walked down an aisle towards the back and upon rounding the corner he slipped and fell in an area where a store employee had just finished mopping. Id. The employee claims that he put up 3 “Slippery When Wet” cone and had just finished mopping up a cup of spilled coffee. Id. A still photograph from a surveillance camera showed that only one cone. Id. Mr. Mitchell sued claiming that the store was liable because it created a wet and slippery condition on the floor of its store and it failed to adequately warn of this condition. Id.

Under a relatively new case, Laneir,(cite omitted), the Kentucky Supreme Court modified the burden of proof that is needed in a slip and fall premises liability case where the foreign substance on the premises was not brought about and/or caused by the proprietor. Id. The business invitee has the initial burden of proving that: “1) He or she had an encounter with a foreign substance or other dangerous condition on the business premises, 2) the encounter was a substantial factor in causing the accident and the customer’s injuries, and 3) by reason of the presence of the substance or condition, the business premises were not in a reasonably safe condition for the use of business invitees.” Id. “Once the plaintiff/invitee establishes this initial burden, which creates a rebuttable presumption of negligence sufficient to avoid summary judgment, the burden shifts to the defendant/proprietor who must prove, by a greater weight of the evidence, the absence of negligence through the exercise of reasonable care.” Id. “As such, though the plaintiff may meet his/her initial burden, the defendant may still succeed on a motion for summary judgment if the defendant can prove “that it exercised reasonable care in the maintenance of the premises under the circumstances.”” Id. This is the new law in all Louisville slip and fall cases that involve a foreign substance to a business invitee.

The defendant in Mitchell argued to the Court that it putting up a sign showed that it used reasonable care. Id. Also, that the “wet spot” was an open and obvious condition and therefore it did not owe the plaintiff any duty of care. Id. Under Lanier, the defendant’s burden is “to discover the foreseeable dangerous condition and to correct it or to warn customers of its existence.” Id. The Court reviewed the pictures and evidence and said that though it did discover the dangerous condition, it did not adequately warn in that the one cone that was placed was in the back and not in the area where Mr. Mitchell fell. Id.

As to the ‘Open and Obvious’ argument by defendant, the Court ruled that the defendant was misapplying the law and that it only applied to “hazards caused by the owner, not those caused by a foreign substance.” Id.

If you have been the subject of a Louisville slip and fall case, please call and speak to a Louisville slip and fall lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

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Recently, in December of 2009, the United States District Court for the Eastern District of Kentucky heard a case regarding unpaid overtime wages for a police officer that had to attend AA meetings. (See Todd v. Lexington Fayette Urban County, 2009 WL 4800052 (E.D.Ky.)). In Todd, Mr. Todd was a police officer for the defendant. In March of 2006, while he was at home, Mr. Todd drank a lot of alcohol and some Ambien. Id. He was rushed to the hospital after, he met with his supervisors who gave him time off to attend and complete a sixteen day treatment program. Mr. Todd did so and after he was cleared to go back to work with no restrictions. Id. The defendant took him back but with certain conditions. Id. They required that he attend AA meetings, submit to random urine tests, refrain from taking alcohol, continue to see a psychiatrist and that he should see a doctor about getting off the prescription medications he had been taking. Id. Mr. Todd agreed and he went back to work. Id.

Mr. Todd sued seeking compensation for the time that he spent attending and traveling to and from AA meetings and psychiatric examinations. Id. He tried to argue that since his job required him to do these things that they were work and thus he should have been compensated for them under the Fair Labor Standards Act. (FLSA). Id. The defendant filed a motion for summary judgment seeking to throw out the Lexington overtime non-payment of wages case.

“The Court defined “work” to mean “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.”” (cites omitted). Id. The Supreme Court has stated that even work performed off duty can be considered work under the FLSA. Id.

The Court used a three part test to determine if the hours Mr. Todd spent going to and from and attending the AA meetings qualified as work. Id. The Court stated that it must consider whether: 1) the defendant required these activities, 2) whether they were necessarily and primarily for the benefit of the defendant, and 3) whether they were an indispensable part of Mr. Todd’s primary employment activities. Id. As to factor number 1, the Court held that Mr. Todd was required to attend the AA meetings. But, as to factor number 2, the Court held that Mr. Todd’s attendance to these meetings were not for the benefit of the defendant, but for the benefit of Mr. Todd. Id. It was to get him healthy and to allow him to go back to work. And finally, the Court held that Mr. Todd’s treatment was not an indispensable part of the primary activities of him employment as a police officer. Id. The Court held that sobriety is not a primary activity of a police officer’s employment. Id. Thus, Mr. Todd’s travel to and from the AA meetings and his attendance were not Lexington overtime and thus were not unpaid wages under the FLSA.

Thus, if you are a Lexington Overtime worker and have a question as to whether your attendance to an outside ‘meeting’ should or should not be compensated as wages under the FLSA, you should contact a Lexington overtime lawyer.

If you have been the subject of Lexington Overtime Unpaid Wages for some type of mandatory meeting, please call and speak to a Lexington overtime unpaid wages lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

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Recently, in March of 2010, the United States Court of Appeals for the Sixth Circuit decided a case that came out of a Michigan lower court regarding a sexual harassment claim. (See Hensman v. City of Riverview, 316 Fed Appx. 412 (C.A.6(Mich.)). In Hensman, Ms. Hensman worked as a dispatcher for the City of Riverview. Her supervisor was the Fire Marshal/Deputy Chief Mr. Batchelder. Id. She alleged that for approximately 6 weeks that she worked with Mr. Batchelder, that he sexually harassed her and created a hostile work environment. Id. She claims that 1) he did not listen to her because he was distracted at how beautiful she is, 2) he complimented her on her perfume, 3) he described her as voluptuous and well-endowed and 4) was an incident where he locked himself out of the office and had to go to her home at 11:30pm and wake her up with her family and kids and said that she looked cute in her jammies. Id. She admits that he never groped or fondled her and that he never sexually propositioned her. Id. After all this, Ms. Hensman filed a complaint with her department and the matter was reviewed. Id. No sexual harassment was found. Id. Thus, she filed with the EEOC and later sued. Id.

In order to establish the Title VII sex discrimination claim, a plaintiff must meet the following 5 conditions, 1) that she was a member of a protected class, 2) that she was subjected to unwelcome sexual harassment, 3) that the harassment was based on sex, 4) that the harassment unreasonably interfered with her work performance by creating a hostile, offensive, or intimidating work environment, and 5) that there is a basis for employer liability. Id. The Court also noted that the conduct did need to be severe or pervasive. Id. Based on these conditions, the Court held that Ms. Hensman did not have enough evidence to sustain a sexual harassment claim. Id.

Next the Court looked to see if Ms. Hensman had enough evidence to satisfy the requirements for a hostile work environment claim. While looking at the frequency of the discriminatory conduct, its severity, and whether it is physically threatening or humiliating, the Court held that Ms. Hensman did not meet the requirements for a hostile work environment claim. Id. While the comments may have been inappropriate, they were not frequent and did not rise to the level needed by the Supreme Court. Id.

The Court cited a few other cases that had much worse facts as to the alleged hostile work environment discrimination where the Court had not found the allegations enough to sustain such a claim. As the Court indicated, what Mr. Batchelder may have done was offensive, but “simply not substantial enough to satisfy the prima facie showing.” Id.

If you have been the subject of Kentucky sexual harassment or Kentucky hostile work environment discrimination, please call and speak to a Kentucky sexual harassment lawyer or Kentucky hostile work environment discrimination lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

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In April of 2008, the Western District Court in Kentucky decided a case which involved a gender based hostile work environment claim. In that case, the facts were as follows. A woman, Ms. Parker worked in a pediatric medical care facility. In December of 2003, at the Christmas party, Ms. Parker was given a gift card to a local adult store as a ‘gag gift’. (See Parker v. Pediatric Acute Care, P.S.C., 2008 WL 746677 (Ky.App.)). Prior to getting the gift, Ms. Parker had gotten wind of it and went to her bosses and told them about it and to stop it because it would embarrass her at the party. Id. They did not and she got the gift. Id. Then, 5 months later, Ms. Parker was fired after working for defendants for over 20 years. In response, Ms. Parker sued in state court and alleged a sexually hostile work environment and retaliatory discharge. Id. The trial court dismissed her case and thus she appealed. Id.

The Kentucky Federal Court sustained the lower trial court’s rulings. It did so for the following reasons. It agreed that the one time, boorish behavior at the Christmas party was not harassment that was severe and/or pervasive and thus not enough for a hostile work environment claim. Id. In order to establish a prima facie claim for hostile environment and sexual harassment by a co-worker, a plaintiff must show, 1) she was a member of the protected class, 2) she was subjected to unwelcome harassment, 3) the harassment was based upon gender, 4) the harassment unreasonably interfered with the plaintiff’s work performance or created a hostile or offensive work environment that was severe and pervasive, and 5) some basis exists for imputing liability to the employer.” Id.

The court stated that “courts have made it clear that an isolated incident, boorish behavior or mere utterance is not sufficient to demonstrate a hostile work environment.” Id. There is a difference between harassing and merely objectionable conduct. Id.

The hostile work environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. (cites omitted). The court went on to discuss the totality of the circumstances evaluation and how you have to look at the frequency, severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with an employee’s work performance. Simple teasing, offhand comments, and isolated incidents will not amount to discriminatory changes in the terms and conditions of employment. (cites omitted).

If you have been the subject of hostile work environment, please call and speak to a Louisville employment lawyer at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week.

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In September of 2007, the Western District Court in Kentucky decided a case which involved a hostile work environment claim. In that case, the facts were as follows. A woman, Ms. Cecil was hired by a company to handle drafting deeds of easement and purchase agreements. She was to be out in the field a lot. She felt she was discriminated against in that she claimed she did not receive any training as compared to her male counterparts. Further, she claimed she was treated unpleasantly and was given unattainable goals. Also, a scheduled field trip she had was cancelled and she contends that was based as a result of the gender discrimination. Further, her boss allegedly stated she looked like Lisa Douglas on the Green Acres television show and that she dressed too nice. And finally on one occasion, her boss used derogatory language and acted violently towards her. (See Cecil v. Louisville Water Company, 2007 WL 2746667 (W.D.Ky.))

A hostile work environment case takes a totality of the circumstance view to it. Each case is viewed on a whole and independently. There is nothing truly written down as to what constitutes a hostile work environment and what does not. There is case law and rules to put in some guidelines as to who can file for a hostile work environment claim, but there are no exact guidelines like in a criminal case. There is nothing that says that someone has to use the “f” word more than 20 times to have a case. Or that a woman (or man) has to be degraded and made fun of 50 times in 6 months to have a hostile work environment case. Or that if you are from Mexico and they make fun of you they have to do so 20 times as compared to being from Colombia where they have to make fun of you only 10 times. There are no such rules or regulations for a hostile work environment case.

In Cecil, the court cited to the Supreme Court for guidance. “When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ Title VII is violated. (cites omitted). In determining whether an actionable hostile work environment claim exists, we look to “all the circumstances,” including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” (cites omitted).

“A hostile work environment claim, under Title VII, is actionable “when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (cites omitted). To establish a prima facie case of gender –based harassment, Cecil must establish that 1) she was a member of the protected class, 2) she was subjected to unwelcome harassment, 3) the harassment was based upon gender, 4) the harassment was sufficiently severe or pervasive to create a hostile or abusive working environment, and 5) some basis exists for imputing liability to the employer.” Id. The Supreme Court has repeatedly held that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ Id. Non-sexual conduct may be illegally sex-based and properly considered in the hostile environment analysis where it can be shown that but for the employee’s sex, she would not have been the object of harassment. Id.

The Cecil court did site a Supreme Court case which stood for the proposition that “Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discrimination ... because of… sex.’ (cites omitted). The Supreme Court has stated that it is important to distinguish between harassment and discriminatory harassment in order to ‘ensure that Title VII does not become a general civility code.’ (Cites omitted).
The Cecil court also cited other case law that stated that in a hostile work environment case the directive is to “evaluate whether the actions, properly viewed in context, ‘could be viewed by a jury as humiliating and fundamentally offensive to any woman in that work environment, and they go to the core of the entitlement of a workplace free of discriminatory animus.” (cites omitted). The Cecil court then went on to site other cases that did not find enough to sustain a sexual harassment claim. For example, in one case a male supervisor called his female employee “hot lips” and made comments about what she wore and told dirty jokes in front of her did not create a hostile work environment. (cites omitted). In another case, a supervisor put a pack of cigarettes under a female employee’s bra strap, made a remark that she had ‘lost her cherry’ and said he was aroused by the phrase “dick the malls”, was not enough for hostile work environment claim. (cites omitted). And finally in another case, an employer teasing the employee about her dancing on tables at a local strip bar, joking about her “hooterville” and “titsville”, calling her “broad” and making fun of her pronunciation of “bosom” did not create an objectively hostile work environment.” (cites omitted).

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In September of 2007, the Western District Court in Kentucky decided a case which involved a hostile work environment claim. In that case, the facts were as follows. A small group of former employees to Ann Taylor sued claiming they were discriminated against because of their national origin. (See Lescailles v. Ann Taylor Distribution Services, Inc., 2007 WL 2725972 (W.D.Ky.)). The plaintiffs complained they were being treated differently than their American counterparts. The plaintiffs and defendant had a few meetings to try to work their differences out. Unfortunately, the meetings did not help. The plaintiffs claimed they got less desirable jobs. They were not rotated to good positions. Id. That they were not allowed to work with relatives, but some Americans were, and that they were called offensive words like “stupid” or “bastard”. Id.

The Kentucky Civil Rights Act was modeled on Title VII of the Civil Rights Act of 1964. Id. To make out a hostile work environment claim, an employee must show that 1) the employee is a member of a protected class, 2) the employee was subject to unwelcome harassment, 3) the harassment was based on the employee’s protected status, 4) the harassment created a hostile work environment and 5) the employer failed to take reasonable care to prevent and correct any harassing behavior. Id. A hostile work environment exists “when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently sever or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Id. To make out a prima facia case, plaintiffs must satisfy both an object and subjective test proving 1) that the conduct was sever or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and 2) that a plaintiff subjectively regarded the environment as abusive. Id. On a motion for summary judgment trying to dismiss the case, the court must search for evidence about “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether the conduct unreasonably interferes with an employee’s work performance. Id. “Clearly the federal and state discrimination statutes are not intended to make actionable claims of workplace disagreements or isolated objectionable comments.” Id.

“A review of many cases which discuss hostile work environment claims reveals that pervasive name-calling, threatening language, intimidating actions or insults are standard and probably required fare in every instance.” In Lescailles, the court noted that there were no ethnic or national origin based derogatory remarks or slurs; just generic ones. Id. Further the language could have been taken as ‘offensive’, but the plaintiffs were never threatened nor humiliated by such words. Id. The court then goes on to site additional cases that had shown conduct that was viable as hostile and others that did not.

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