Cause of Action: Discrimination Based Upon National Origin

John Charalambakis v. Asbury College
COA PUB 2/7/2014

THOMPSON, JUDGE: John Charalambakis, a former professor at Asbury College, sued for employment discrimination, breach of contract and defamation. Charalambakis appeals from summary judgment on his discrimination and retaliation claims, dismissal of his defamation claim, the jury verdict on breach of contract claim and the final judgment awarding costs. 

Charalambakis ‘ first claim is the trial court erred in granting summary judgment on his claim of discrimination on the basis of national origin. Under the KCRA it is unlawful for an employer to discharge, discriminate against or adversely affect an individual’s status as an employee because of that individual’s national origin. KRS 344.040(1)(a), (b). Kentucky interprets the KCRA consistently with Title VII of the Federal Civil Rights Act. American General Life & Acc. Ins. Co. v. Hall, 74 S.W.3d 688, 691 (Ky. 2002). To establish a prima facie case of discrimination, “[a] plaintiff must show that: (1) he is a member of a protected class; (2) he was terminated; (3) he was qualified for the position; and (4) he was replaced by a person outside a protected class or was treated differently than a similarly situated, non-protected employee.” Abdulnour v. Campbell Soup Supply Co., LLC, 502 F.3d 496, 501 (6th Cir. 2007). A prima facie case of national origin discrimination can be established through direct evidence of discrimination or by establishing a circumstantial case raising an inference of discrimination pursuant to the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Charalambakis argues Kulaga’s comments about his accent are direct evidence Kulaga was predisposed to discriminate against him based on his national origin and acted on this predisposition when he placed Charalambakis on probation and terminated his employment.

We agree comments regarding Charalambakis’s accent relate to his national origin. In re Rodriguez, 487 F.3d 1001, 1008-1009 (6th Cir. 2007). However, offhanded and isolated comments about a person’s accent are insufficient to show discriminatory changes in the terms and conditions of employment. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271, 121 S. Ct. 1508, 1510, 149 L. Ed. 2d 509 (2001).

[D]irect evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions. Consistent with this definition, direct evidence of discrimination does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group. [T]he evidence must establish not only that the plaintiff’s employer was predisposed to discriminate on the basis of [national origin], but also that the employer acted on that predisposition.

DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004) (internal quotations and citations omitted).

Statements temporally separated and unrelated to the employment decisions being challenged cannot constitute direct evidence of discrimination. See Alexander v. Univ. of Kentucky, 2012 WL 1068764, 14 (E.D. Ky. 2012) (citing relevant cases). An inference is needed to establish Kulaga’s alleged predisposition against individuals with accents is connected to his decision to place Charalambakis on probation and then terminate his employment. See Hein v. All America Plywood Co., 232 F.3d 482, 488-489 (6th Cir. 2000).

Because Charalambakis cannot establish he was discriminated against through direct evidence, he must establish his claim of discrimination under the McDonnell Douglas burden-shifting test. Once a plaintiff has met the burden of establishing a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the termination. Abdulnour, 502 F.3d at 502. The plaintiff must then establish the employer’s stated reason was pretext. Id.

Charalambakis met his initial burden in establishing a prima facie case of discrimination under the McDonnell Douglas test. Charalambakis is a member of a protected class, was terminated, was qualified to be a professor at Asbury and was replaced by a person outside the protected class. Asbury also met its burden of countering the prima facie case by showing a legitimate, nondiscriminatory reason for these actions, the violation of its policies. The disputed issue is whether Charalambakis was able to show evidence of pretext to avoid summary judgment.

Pretext may be established by three methods: “(1) the proffered reasons are false; (2) the proffered reasons did not actually motivate the decision; and (3) the plaintiff could show that the reasons given were insufficient to motivate the decision.” Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 497 (Ky. 2005).

A plaintiff’s subjective belief he was discriminated against is insufficient to establish pretext. Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 701 (Ky.App. 1991). “A plaintiff must present ‘cold hard facts creating an inference showing [the plaintiff’s protected status] was a determining factor’ in his discharge.” Flock v. Brown Forman Corp., 344 S.W.3d 111, 116 (Ky.App. 2010) (quoting Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226, 229 (Ky. 1984)). “The appropriate inquiry . . . [is] whether there was sufficient evidence to permit a rational trier of fact to conclude [the employer] unlawfully discriminated against [the plaintiff][.]” Williams, 184 S.W.3d at 500.

Questioning the soundness of an employer’s business judgment or practices is insufficient; “[e]ven if [the employer] rushed to judgment about [the plaintiff’s] culpability or if his punishment was unfair, [the plaintiff] must show that his [protected status] was a motivating factor in the [action the employer took].” Flock, 344 S.W.3d at 117.

[T]he issue is not “the correctness or desirability of [the] reasons offered . . . [but] whether the employer honestly believes in the reasons it offers.” McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir.1992). See also Pignato v. American Trans Air, Inc., 14 F.3d 342, 349 (7th Cir.1994) (“It is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible. He must show that the explanation given is a phony reason”).

Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996). “[A]n employer may make employment decisions ‘for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.’” Davis v. Ermco Mfg., 215 F.3d 1325, *5 (6th Cir. 2000) (unpublished) (quoting Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)).

Charalambakis’s evidence was insufficient to establish the evidence of misconduct provided by outside sources was fabricated, did not motivate Asbury’s actions or was insufficient to support the actions taken. The claims of misconduct were thoroughly investigated. Charalambakis was allowed to respond to them and his disagreement with their merit is insufficient to show they were pretextual. Summary judgment was appropriately granted on Charalambakis’s discrimination claim.

first claim is the trial court erred in granting summary judgment on his claim of discrimination on the basis of national origin. Under the KCRA it is unlawful for an employer to discharge, discriminate against or adversely affect an individual’s status as an employee because of that individual’s national origin. KRS 344.040(1)(a), (b). Kentucky interprets the KCRA consistently with Title VII of the Federal Civil Rights Act. American General Life & Acc. Ins. Co. v. Hall, 74 S.W.3d 688, 691 (Ky. 2002). To establish a prima facie case of discrimination, “[a] plaintiff must show that: (1) he is a member of a protected class; (2) he was terminated; (3) he was qualified for the position; and (4) he was replaced by a person outside a protected class or was treated differently than a similarly situated, non-protected employee.” Abdulnour v. Campbell Soup Supply Co., LLC, 502 F.3d 496, 501 (6th Cir. 2007). A prima facie case of national origin discrimination can be established through direct evidence of discrimination or by establishing a circumstantial case raising an inference of discrimination pursuant to the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

≈ argues Kulaga’s comments about his accent are direct evidence Kulaga was predisposed to discriminate against him based on his national origin and acted on this predisposition when he placed Charalambakis on probation and terminated his employment.

We agree comments regarding Charalambakis’s accent relate to his national origin. In re Rodriguez, 487 F.3d 1001, 1008-1009 (6th Cir. 2007). However, offhanded and isolated comments about a person’s accent are insufficient to show discriminatory changes in the terms and conditions of employment. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271, 121 S. Ct. 1508, 1510, 149 L. Ed. 2d 509 (2001).

[D]irect evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions. Consistent with this definition, direct evidence of discrimination does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group. [T]he evidence must establish not only that the plaintiff’s employer was predisposed to discriminate on the basis of [national origin], but also that the employer acted on that predisposition.

DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004) (internal quotations and citations omitted).

Statements temporally separated and unrelated to the employment decisions being challenged cannot constitute direct evidence of discrimination. See Alexander v. Univ. of Kentucky, 2012 WL 1068764, 14 (E.D. Ky. 2012) (citing relevant cases). An inference is needed to establish Kulaga’s alleged predisposition against individuals with accents is connected to his decision to place Charalambakis on probation and then terminate his employment. See Hein v. All America Plywood Co., 232 F.3d 482, 488-489 (6th Cir. 2000).

Because Charalambakis cannot establish he was discriminated against through direct evidence, he must establish his claim of discrimination under the McDonnell Douglas burden-shifting test. Once a plaintiff has met the burden of establishing a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the termination. Abdulnour, 502 F.3d at 502. The plaintiff must then establish the employer’s stated reason was pretext. Id.

Charalambakis met his initial burden in establishing a prima facie case of discrimination under the McDonnell Douglas test. Charalambakis is a member of a protected class, was terminated, was qualified to be a professor at Asbury and was replaced by a person outside the protected class. Asbury also met

its burden of countering the prima facie case by showing a legitimate, nondiscriminatory reason for these actions, the violation of its policies. The disputed issue is whether Charalambakis was able to show evidence of pretext to avoid summary judgment.

Pretext may be established by three methods: “(1) the proffered reasons are false; (2) the proffered reasons did not actually motivate the decision; and (3) the plaintiff could show that the reasons given were insufficient to motivate the decision.” Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 497 (Ky. 2005).

A plaintiff’s subjective belief he was discriminated against is insufficient to establish pretext. Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 701 (Ky.App. 1991). “A plaintiff must present ‘cold hard facts creating an inference showing [the plaintiff’s protected status] was a determining factor’ in his discharge.” Flock v. Brown Forman Corp., 344 S.W.3d 111, 116 (Ky.App. 2010) (quoting Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226, 229 (Ky. 1984)). “The appropriate inquiry . . . [is] whether there was sufficient evidence to permit a rational trier of fact to conclude [the employer] unlawfully discriminated against [the plaintiff][.]” Williams, 184 S.W.3d at 500.

Questioning the soundness of an employer’s business judgment or practices is insufficient; “[e]ven if [the employer] rushed to judgment about [the plaintiff’s] culpability or if his punishment was unfair, [the plaintiff] must show that his [protected status] was a motivating factor in the [action the employer took].” Flock, 344 S.W.3d at 117.

[T]he issue is not “the correctness or desirability of [the] reasons offered . . . [but] whether the employer honestly believes in the reasons it offers.” McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir.1992). See also Pignato v. American Trans Air, Inc., 14 F.3d 342, 349 (7th Cir.1994) (“It is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible. He must show that the explanation given is a phony reason”).

Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996). “[A]n employer may make employment decisions ‘for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.’” Davis v. Ermco Mfg., 215 F.3d 1325, *5 (6th Cir. 2000) (unpublished) (quoting Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)).

Charalambakis’s evidence was insufficient to establish the evidence of misconduct provided by outside sources was fabricated, did not motivate Asbury’s actions or was insufficient to support the actions taken. The claims of misconduct were thoroughly investigated. Charalambakis was allowed to respond to them and his disagreement with their merit is insufficient to show they were pretextual. Summary judgment was appropriately granted on Charalambakis’s discrimination claim.

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