Kentucky Personal Injury Lawyer Blog

In August of 2010, the United States District Court for the Eastern District of Kentucky decided a case regarding a former Lexington, Kentucky employee who sued his former employer alleging race discrimination, hostile work environment and retaliation. (See Meads v. Dixie consumer Products, LLC, 2010 WL 3168091 (E.D.Ky)). In Meads, the Plaintiff worked for Defendant from October of 2007 until November 2008. Early on, Plaintiff was involved in an incident and was required to sign a Last Chance Agreement on March 12, 2008.

Even so, Plaintiff’s career with Defendant advanced. Plaintiff went from auto/packer to training for the treater mechanic position. But, Plaintiff during the qualifying time for the new position did not do as well as his employer would have liked and thus it was determined that Plaintiff would continue on the qualification period for a little while longer. Because he was required to work a little longer in this qualification period Plaintiff called the company hotline and raised issues regarding his advancement and Kentucky racial discrimination.

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In July of 2009, the United States Court of Appeals for the Sixth Circuit decided a case where the Plaintiff alleged race discrimination, retaliation, and hostile work environment. (See Batuyong v. Gates, 337 Fed Appx 451 (C.A.6 (Ohio))). In Batuyong, the Plaintiff had requested 240 hours of advance sick leave (ASL) for time off following an elective knee surgery that she would have on June 4, 2004. Her first line supervisor recommended that the ASL be approved, but the second line supervisor did not and thus Plaintiff while she was out was considered Leave Without Pay (LWOP) and Away without Leave (AWOL). But, a few months later, the second line supervisor reversed herself and approved the ASL request. Plaintiff was reinstated in good standing and Plaintiff returned to work on August 9, 2004. But, it did not end there. Plaintiff was upset and felt that she was wronged, so she went and found a race discrimination lawyer to help her out.

Continue reading "Federal Civilian Employee Brings Race Discrimination, Retaliation and Hostile Work Environment Lawsuit." »

In April of 2010, the United States Western District Court in Kentucky decided a case which involved a race discrimination wrongful termination case. In this case, the Plaintiff alleged that he was subject to racial discrimination and harassment in the form of jokes, slurs, and demeaning insults. (See Laporte v. B.L. Harbert International, LLC, 2010 WL 1542500 (W.D.Ky.). The Plaintiff in this case after receiving his right to sue letter from the EEOC, filed a lawsuit with many counts. One of the counts was a Title VII and KCRA (Kentucky Civil Rights Act) for race discrimination, harassment, and retaliation against his supervisor. Id. The Sixth Circuit held that “an individual employee/supervisor, who does not otherwise quality as an “employer,” may not be held personally liable under Title VII.” (cites omitted). Id. The same is true pursuant to the KCRA. Id. Thus this count was dismissed.

Next, Plaintiff brought a count alleging 14th Amendment, Section 1983 and Bivens Claims against two named individuals. Id. “To sate a claim under the Equal Protection Clause, a Section 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class.” (cites omitted). Id. Further, “The Bivens doctrine is a judicially created counterpart to a Section 1983 action and pertains to suits filed against federal officials who have allegedly denied a plaintiff’s constitutional rights. (cites omitted). Plaintiff has not alleged that Defendants were “acting under color of state law” or are federal officials. Therefore, Plaintiff’s claims must be dismissed.” Id.

Continue reading "Louisville Hostile Work Environment – Race Discrimination Issue of Damages." »

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.

If you are injured…Ask Andrew!!!

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.

If you are injured…Ask Andrew!!!

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.

If you are injured…Ask Andrew!!!

Recently, in January of 2009, the U.S. Court of Appeals for the 6th Circuit decided a case regarding hostile work environment and race discrimination. An African American woman named Christine Ladd sued her former employer for the race based harassment and retaliatory discharge against her former employer Grand Trunk Western Railroad. (See Ladd v. Grand Trunk Western Railroad Incorporated, 442 F.3d 495 (6th Cir. 2009)).

Ms. Ladd began her employment in April of 2000 with Grand Trunk. She was twice promoted. She was the only African American woman there. She claimed a co-worker in the fall of 2004 sexually harassed her. And then in March of 2005, she claimed retaliatory discharge after she file an injury report and was subsequently fired. In her deposition, she only sited to one person, a co-worker, not superior, who made a specific race or sex based offensive remark. While at work, Ms. Ladd did hear remarks about someone being a lesbian or gay or dyke, but these comments were not directed at her. Further, Ms. Ladd testified that she did not complain about any of the remarks to anyone nor did she complain of any of the other remarks about “this being a man’s job, etc.” to any other supervisor. Though, she did complain once to a supervisor when she thought a co-worker called her a “black bitch.” This matter was immediately investigated by her supervisors and was resolved. A Louisville employment lawyer could help explain the intricacies of such a matter.

Then in March of 2005, Ms. Ladd hurt her back while at work because she claims the man who called her a black bitch, moved the truck while she was on it, causing her back pain. She reported it right away. The matter was investigated and it sent to a formal hearing to see if Ms. Ladd was lying ie. filing a false injury report, or if the man who moved the car was lying. After several witnesses testified, it was determined that Ms. Ladd was not credible and so she lost. After she lost, Ms. Ladd filed a sex discrimination charge with the EEOC based on the events that had taken place. The EEOC granted Ms. Ladd her right to sue letter and so she brought her hostile work environment claims.

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In April of 2009, a U.S. Court of Appeals in the Sixth Circuit, decided an appeal from a lower Tennessee court. The issues on appeal were that the Plaintiff claimed that two evidentiary rulings were made by the district court: 1) the exclusion of an exhibit offered by Plaintiff as hearsay due to the lack of an appropriate witness to lay the proper foundation for the document, and 2) the granting of a motion in limine in which the district court prohibited the admission of certain evidence from a prior action between the same parties. (See Cobbins v. Tennessee Department of Transportation, 566 F.3d 582 (6th Ct. of App. 2009). A race discrimination lawyer can assist you with this case.

Mr. Cobbins is an African-American male who worked for the defendant as a maintenance worker since February of 1994. In March of 2004, Mr. Cobbins applied for any open position. In May of 2004, the Highway Maintenance County Supervisor position became available. And after a few people dropped out, it came down to Mr. Cobbins and Mr. Staggs for the position. Mr. Staggs is white and had a higher civil service score than Mr. Cobbins. In Tennessee, the Department of Human Resources is responsible for reviewing applications to verify that the applicants meet the minimum qualifications for the posted job. Then it creates a list of ‘Certificate of Eligibles’ which is then submitted. The H.R. also comes up with the civil service score based on the applicants education, training, and work experience.

Mr. Cobbins had less education, less training and less work experience. Also, in his file there were several oral and written warnings from his prior supervisors, Mr. Yocum. Mr. Yocum is white and Mr. Cobbins had filed a racial discrimination lawsuit against him prior to this case. He had a race discrimination lawyer to assist him.

The attached is a video showing a classic example of racial discrimination that had made the news a short while ago. See it and then continue on with the case at hand.

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