JUNE 29, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:32)
MINUTES from AOC for this week saved at our site and click here for the AOC's Official Minutes [which is provided for backup purposes].
Nos. 677 - 704; 28 rendered decisions with 9 published and 6 reversed, remanded and/or vacated
PUBLISHED (COA).
CA affirmed Defendant's conviction and 6 year sentence for one count of complicity to commit first degree trafficking in a controlled substance. Morrow was not entitled to an entrapment instruction. Entrapment presupposes the commission of a crime. A defendant may use entrapment as a defense when the offense arises out of proscribed conduct. KRS 505.010. In order for there to be entrapment, there must be an offense and proscribed conduct. The entrapment defense is not available when a defendant denies the underlying offense or any proscribed conduct.
TC did not err in refusing to utilize Morrow's tendered jury instruction directing a finding of not guilty if the jury believed he was merely present at the scene of the drug transaction. The complicity instruction actually presented to the jury required them to find that Morrow aided or assisted his brother in the drug transaction. The requested defense of mere presence is implied in that instruction. There is no authority for a “mere presence” instruction.
Digested by Scott
Byrd @ www.OlginandByrd.com
TC committed no error in denying McKee's request for post-conviction relief without holding an evidentiary hearing. CA examined all of McKee's numerous complaints alleging ineffective assistance of trial counsel and concluded that there are no material issues of fact that cannot be resolved by reference to the record.
Digested by Scott
Byrd @ www.OlginandByrd.com
In this wrongful discharge case, CA vacates and remands TC dismissal for lack of subject matter jurisdiction.
Appellant's complaint alleged involuntary termination in violation of KRS 336-130 in that he was involved in preliminary efforts by the United Mine Workers of America to organize workers at the appelle hospital and was terminated. He asserted his action under the KRS and not under any federal rule, statute or regulation. Appellee filed a motion to dismiss for lack of subject matter jurisdiction; which the court granted after a hearing.
CA vacates and reverses, however, noting that appellant has made no claim for regulatory or injunctive relief which would fall within the exclusive jurisdiction of the National Labor Relations Board; instead, he has sought only compensatory and punitive damages based upon violation of state law.
By John
E.
Hamlet
Dad appealed TC’s order denying his motion to substantially reduce his child support obligation, arguing that the original order of support was based on Mom having primary residence of the children, but that now neither of them was designated as the primary residential parent, they now equally shared parenting time and they had approximately the same income.
CA agreed with Dad. CA noted that under KRS 403.211(2) and (3), the trial court may deviate from the Kentucky Child Support Guidelines when it finds that their application would be unjust or inappropriate, and that provision provides trial courts with a measure of flexibility to consider the amount of time that children spend with each parent. Here, because physical custody of the children is evenly divided between the parents, they bear an almost identical responsibility for the day-to-day expenses associated with their care. And since there is no significant disparity between the parties’ annual incomes, the expenses necessary to provide a home for the children (even when they are not in residence) are also incurred by each party in equal proportion. Under the particular circumstances in this case, CA found TC’s order continuing Dad’s child support obligation to Mom to be in error. However, CA distinguished this case from Downey v. Rogers, 847 S.W.2d 63 (Ky. App. 1993), where CA ordered for child support to continue despite an equal parenting time schedule. In Downey, unlike the instant case, Dad had agreed to the child support amount he was seeking to have reduced, and furthermore, his income was double that of Mom’s.
By Michelle
Eisenmenger Mapes with www.Louisvilledivorce.com
COA affirmed the dismissal of Pamela Perkins's dismissal of her displinary action by the Kentucky Personnel Board since written reprimands were not included as "other disciplinary actions."
Perkins is an employee of the Cabinet for Health and Family Services (Cabinet). In March 2004 she received a written reprimand for failure to follow proper procedures in obtaining approval to leave her work station prior to the end of her shift. She filed an appeal to the Board challenging the reprimand on the basis that it constituted penalization from the Cabinet without just cause. The Board agreed with the hearing officer's findings and entered an order on dismissing the appeal for lack of jurisdiction.
Written reprimands were not to be included in KRS 18A.005(24) through the term “other disciplinary actions” and such matters are not subject to appeal to the Board under KRS 18A.095(9).
The sole issue to be addressed in this appeal concerns whether a written reprimand is a “disciplinary action” rising to the level of “penalization” as those terms are
used in the statutes. Actions deemed to be penalizations may be appealed to the Board,
Written reprimands are discussed, although not specifically defined, in KRS 18A.020. Thus, the proper interpretation of “other disciplinary actions” is also a matter of law. A reprimand, as the term is commonly used, is a severe, formal, or public correction of an unapproved action. Merriam-Webster's Collegiate Dictionary 991 (10th ed. 2002).
Pursuant to KRS 18A.020(2)(c), governmental employee reprimands are issued “for misconduct, other infraction, or failure to perform [the employee's] duties in a proper or adequate manner.” Such reprimands are to be in writing and must follow a set protocol for content intended to inform the affected employee of such action, to advise of his or her corresponding rights, and to provide notice to him or her that such writing will be filed in the employee's personnel records. Clearly, such reprimands equate to a “disciplinary action” for purposes of KRS Chapter 18A, and neither of the parties argues to the contrary.
However, the COA agreed with the WC Board that the use of a written reprimand, though technically a disciplinary action, does not rise to the level of a “penalization” as contemplated in KRS 18A.005(24) because there is no quantifiable impact upon the employee with respect to pay, status, or responsibility and tht the sole remedy for one allegedly aggrieved by a written reprimand is the filing of a written response A review of the specified disciplinary actions clearly shows the legislative intent was to include only those actions which had a direct and immediate impact on the affected employee, such as loss of rank, responsibility, pay, or discretion. Written reprimands do not result in such penalizing impact.
By Michael L. Stevens
Fields filed suit against her former employer Papa John's under Kentucky Revised Statutes (KRS) Chapters 342 and 344, alleging various sexual discrimination and retaliation infractions which ultimately led to her dismissal from employment. She appeals the summary judgment dismissing her claims.
COA Affirmed.
Fields's complaint asserted Papa John's subjected her to sexually discriminatory practices, retaliated against her for complaining about such practices, and demoted and/or terminated her in retaliation for seeking benefits under the Workers' Compensation Act. Fields claimed she began having issues with two general managers from different stores in late 2002. These issues included gossiping and name-calling amongst the three employees. She alleged the other two employees called her a “bitch” and began
a rumor that she was homosexual. She complained she was receiving lower pay than male managers, two other managers were calling her names, those same two managers were receiving preferential treatment, and she was held to higher standards and expected to work longer hours than other managers. She admitted she had no personal knowledge to substantiate any of these allegations, yet the COO immediately took action to remedy the situation.
Pay records, however, showed Fields was earning within $50.00 of the highest paid manager in the Lexington marketing area and she was actually clocking in less than other managers. She met with
management, and by all reports, conditions improved and she was allowed to hire additional employees to ease her work load, and the rumors and name-calling subsided.
She had also sustained a work injury and on May 6, 2004, her physicians declared Fields had reached maximum medical improvement
(MMI) and released her to return to work with certain restrictions, including a limitation on repetitive gripping and the pinching/kneading of dough. The following day, Phelps advised Fields the only position available at Papa John's accommodating these restrictions was that of a delivery driver. Fields refused this position as it would require placing her in a store managed by one of the employees with whom she had previously had issues
Fields testified she considered herself to have been fired because she was not offered a management position and was aware such positions were available at the time in question. However, she explained to Phelps she applied for the benefits because she would only be working part-time.
COA stated that in her argument, Fields makes a series of conclusory assertions in an attempt to bolster her claim that summary judgment was improper. However, even when viewed in the light most favorable to her, these assertions do not raise issues of material fact and the crux of Fields' sexual discrimination claim rests upon her allegations that she heard rumors of male employees calling her a bitch and a lesbian. It is undisputed these comments were ascribed to two coworkers who had no supervisory powers over Fields. Therefore, as these coworkers did not possess any power or authority over Fields emanating directly from Papa John's, Fields must prove Papa John's was negligent in failing to protect her from a hostile environment.
The Sixth Circuit Court of Appeals set forth a reasonableness standard to be used in coworker discrimination cases, holding “'when an employer responds to charges of coworker sexual harassment, the employer can be liable only if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known'” [citation omitted].
It is clear Fields has not established the fifth element required to sustain her cause of action. Fields' own testimony reveals Papa John's quickly responded to her complaints regarding the name-calling and comments regarding her sexual practices.
Given Papa John's rapid and effective response to all of Fields' complaints, and the gender-neutral explanation given for the pay differential, COA HELD the trial court correctly granted summary judgment on these issues as Fields had failed to make a prima facie showing of discrimination. There was no error
However, Fields' own testimony admits the requirement that all Papa John's managers be able to perform all aspects of the day-to-day operations of their stores. Logically, as Papa John's is in the business of selling pizza, managers must reasonably be expected to perform all required aspects of making pizza. Thus, we find no merit in Fields' argument. Fields' failure to return to work after a "gracious allocation of unearned vacation time reasonably presents the appearance of an abandonment of employment, not of retaliatory treatment." AFFIRMED.
By Michael L. Stevens
The Court of Appeals held that KRS 95.830 was unconstitutional to the extent that it attempted to confer absolute immunity on cities in connection with firefighter negligence. The Court held that KRS 75.070 was unconstitutional to the extent that it attempted to confer absolute immunity on municipal fire departments and firefighters for their own negligence. In reaching these holdings, the Court of Appeals relied on the seminal case of Kentucky Center of Arts Corp. v. Berns, 801 S.W.2d 327 (Ky. 1990), which holds that “Where sovereign immunity exists by reason of the constitution, the General Assembly may extend or limit waiver as it sees fit, but where no constitutionally protected sovereign immunity exists the General Assembly cannot by statute create it.” Id. at 329.
The other issue addressed in the case concerned a municipal fire chief’s immunity, which the Court of Appeals determined was controlled by Ashby v. City of Louisville, 841 S.W.2d 184 (Ky. App. 1992), under which personal liability of the firefighter turns on the familiar distinction between ministerial and discretionary duties.
By Hays Lawson
Oldham Farms’s application to subdivide property was denied by the Oldham County Planning and Zoning Commission (“Commission”) after a public hearing, a ruling which the circuit court affirmed. Oldham Farms appealed.
On appeal, the court held that the Commission’s decision was reasonable and not arbitrary or capricious in part because the Commission was presented with substantial evidence in the form of expert testimony that the planned subdivision violated the spirit and intent of Oldham County’s traffic regulations.
The court also held that Oldham Farms’s other complaints regarding issues the circuit court failed to address were not properly preserved for review because under CR 52.04, a party may not be heard to complain on appeal about the absence of a trial court ruling unless the failure to rule was brought to the attention of the trial court in writing.
By Sam Hinkle
The Woodford County Board of Adjustments (the “Board”) granted a conditional use permit to allow a “tourist home.” The Board’s compliance officer, under KRS 100.261 and local authority, supplied a definition of “tourist home” because the zoning regulations did not define the term. Appellants filed a circuit court action seeking to overturn the granting of the conditional use permit. The circuit court affirmed the Board’s decision, and Appellants appealed.
On appeal, Appellants argued that the Board acted arbitrarily when it relied upon the definition of “tourist home” provided by the compliance officer. The court rejected this argument because Appellants did not appeal from the use of this definition to the Board within 30 days after learning of its use as required under KRS 100.261. Although Appellants did not dispute that they did not appeal to the Board within 30 days, they claimed that because the compliance officer exceeded her authority, KRS 100.261 did not apply. The court disagreed, and affirmed the circuit court’s ruling.
The court also rejected Appellants’ argument that the decision to grant the conditional use permit was an unconstitutional act of arbitrary power. Appellants claimed that the Board acted without guidelines because the ordinance did not define “tourist home.” The court disagreed, stating that KRS 100.237 gave the Board the power to grant conditional use permits, and the zoning regulations allow for a conditional use of a “tourist home.”
By Sam Hinkle
NOT PUBLISHED (COA)
JOHNSON V. JOHNSONWEST V. HOOVER
CIVIL PROCEDURE: DISMISSAL FOR LACK OF PROSECUTION (13 YEARS!)
2006-CA-000846
NOT PUBLISHED: 101
DATE RENDERED: 6/29/2007
FAIRCHILD V. COM.
CRIMINAL: MISTRIAL
2006-CA-000992
NOT PUBLISHED: 75
DATE RENDERED: 6/29/2007
ALCORN V. COM.
CRIMINAL: COMMONWEALTH ATTORNEY REPRESENTING COMMONWEALTH IN CIVIL SEXUAL
OFFENDER ASSESSMENT PROCEEDINGS
2005-CA-001909
NOT PUBLISHED: 80
DATE RENDERED: 6/29/2007
COM. B. PAPPAS
CRIMINAL: PLEA AGREEMENTS AND CONDITIONS NOT YET MET; COOPERATION WITH FBI
2006-CA-000162
NOT PUBLISHED: 77
DATE RENDERED: 6/29/2007
THOMPSON V. CONLEY
CRIMINAL: PRISON DISCIPLINARY
2006-CA-000564
NOT PUBLISHED: 88
DATE RENDERED: 6/29/2007
DAWES V. DAWES
FAMILY LAW: JURISDICTION (CIRCUIT COURT NOT DENIED GENERAL JURISDICTION OVER
DOMESTIC MATTERS); DEBTS; QDRO
2005-CA-002585
NOT PUBLISHED: 107
DATE RENDERED: 6/29/2007
BARKER V. BARKER
FAMILY LAW: MAINTENANCE AWARD
2006-CA-001397
NOT PUBLISHED: 97
DATE RENDERED: 6/29/2007
LEWIS V. TRAVIS
PROPERTY: PROPERTY LINE DISPUTE, PUNITIVE AND COMPENSATORY DAMAGES; AWARD
OF COMPENSATORY DAMAGES NOT PREREQUISITE TO PUNITIVES
2006-CA-000531
NOT PUBLISHED: 96
DATE RENDERED: 6/29/2007
CINCINNATI CONCESSION CO. V. WADE
WORKERS COMP: TIMELY NOTICE
2006-CA-002202
NOT PUBLISHED: 96
DATE RENDERED: 6/29/2007
WHITEHEAD V. NALLY & HAMILTON
WORKERS COMP: SUBSTANTIAL EVIDENCE
2007-CA-000536
NOT PUBLISHED: 80
DATE RENDERED: 6/29/2007
Thanks to Scott Byrd, John E. Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Hays Lawson, J. Russell Lloyd, Michelle Eisenmenger Mapes , Peter Naake, Paul O'Bryan, Bryan Pierce, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.