It is well settled in Kentucky that an employee who brings a retaliatory discharge claim against a former employer must prove that: (1) she engaged in a protected activity; (2) she was disadvantaged by an act of her employer; and (3) there was a causal connection between the protected activity and the employer’s act against her. Because direct evidence can be hard to come by, Kentucky courts have historically allowed plaintiffs to prove the third element by showing that the adverse action (e.g., termination) was close in time to the protected activity. However, in the newly released decision University of Louisville Athletic Association, Inc. v. Mary Banker, et al, Case No. 2011-CA-001436 (Feb. 1, 2013), the Kentucky Court of Appeals held that when an employer contemplates the adverse employment action for legitimate, non- discriminatory reasons, before the employee engaged in any protected activity, the plaintiff has not made out a prima facie case of retaliation and the claim should not be permitted to go to the jury.
On April 22, 2008, assistant track and field coach Mary Banker complained to the University Human Resources department about sexual and gender discrimination. On May 15, 2008, Ms. Banker was notified that her one-year employment contract would not be renewed, a decision that had at least been contemplated on April 16, 2008. Ms. Banker brought suit against the University Athletic Association and Athletic Director Tom Jurich alleging, among other things, gender discrimination, retaliatory discharge/wrongful termination and hostile work environment under the Kentucky Civil Rights Act. She sought lost wages, pain and suffering damages, punitive damages and attorney fees and costs.
Only the hostile work environment and retaliatory discharge claims went to the jury. The jury returned a verdict in favor of the University (Jurich had been dismissed by this time) on the hostile work environment claim, but found in favor of Ms. Banker on her retaliatory discharge claim. The jury awarded her $71,875.00 in lost wages and $300,000 for pain and suffering. The trial court awarded Ms. Banker’s attorney $149,325.00 in attorney fees and $875.33 in costs.
On appeal, the University argued (as it had argued to the trial court) that Ms. Banker failed to prove a prima facie case of retaliatory discharge because the decision not to renew her contract was first contemplated before she complained about gender/sexual discrimination. The Kentucky Court of Appeals agreed and reversed, citing Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). In Breeden, the United States Supreme Court held that no causal connection existed for a Title VII claim where the employer was contemplating an employee’s transfer before she filed suit.
The Banker Court explained: “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.” Because the University presented undisputed evidence that it first contemplated non-renewal of Ms. Banker’s contract on April 16, 2008 (for legitimate, non-discriminatory reasons), the Court held that she had failed to establish the causal connection element simply by showing that she complained on April 22 and was terminated three weeks later. The Court of Appeals reversed the jury’s verdict in favor of Ms. Banker, including the award of more than $150,000 to her attorney.
Banker is significant in that it clarifies and re-establishes a Kentucky employer’s right to discipline, suspend or terminate underperforming employees for legitimate, non-discriminatory reasons – without being held hostage by an employee who makes a complaint (or engages in some other protected activity) for the sole purpose of insulating himself.
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