DATE RENDERED: 6/29/2007

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

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