Friday, February 20, 2015

Plaintiff in Civil Rights Act Action Refused to take “Yes” for an Answer

Plaintiff in Civil Rights Act Action Refused to take “Yes” for an Answer

A recent decision of the Kentucky Court of Appeals reviews and rejects the plaintiff’s claims of violation of the Kentucky Civil Rights Act when the employer did everything possible to address the alleged improper conduct and never took any negative action against the plaintiff.  In effect she refused to take “Yes” for an answer.  Ransom v. B.F. South, Inc., No. 2013-CA-001340-MR (Ky. App. Feb. 6, 2015).
Ransom, an employee of a Wendy’s restaurant operated by B.F. South, Inc., was undergoing (the opinion is not specific as to where Ranson was in the process) sex reassignment surgery. In the summer of 2011 another employee, T.J., made some inappropriate comments regarding Ranson to one or more other employees.  Word of these comments got back to Ranson, and she went to her manager.  The district manager then met with Ranson, T.J. and the store manager. Thereafter Ranson and T.J. were never scheduled to work the same shift, and shortly thereafter T.J. was transferred to another store.  The store manager also met with the other employees and put a stop to their discussion of the topic.
Eventually Ranson would bring suit alleging violation by B.F. South of the hostile work environment/sexual harassment provisions of KRS 344.040 and the retaliation/wrongful discharge provisions of the same law.  All claims were dismissed on summary judgment, and this appeal followed.  The Court of Appeals would affirm the trial court’s dismissal of the action.

As for the claim of hostile work environment, “Ranson failed to make the requisite showing that the alleged conduct rose to the level of actionable harassment,” i.e., that it be “sufficiently severe or pervasive ‘to alter the conditions of (the victim’s) employment and create an abusive working environment.” Slip op. at 5-6 (citations omitted).  In this case Ranson acknowledged that after T.J.’s comments “no one at Wendy’s has made any offensive comments about her gender.”  The company had undertaken extensive efforts to prevent further inappropriate induct once it learned of it.  Ranson as well testified in her deposition that the store manager and other employees “have been, and continue to be, supportive of her.”  Slip op. at 7.  On those basis there was no either objective or subjective basis for finding a hostile work environment.
As for the claim of retaliation, the demotion at issue took place prior to her complaints as to T.J.’s conduct, and that after the complaint was filed she received a promotion to team leader and with that a raise.  Further, it was only after she filed her suit against B.F. South and had been deposed that she voluntarily quit.  “Ransom was never terminated by Wendy’s.”  Slip op. at 9.  Ergo, Wendy’s never took any adverse action against Ranson.  As such there could be no claim of retaliation.

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