Discrimination claim by tenured track college faculty member not upheld: MCBREARTY v. KENTUCKY COMMUNITY AND TECHNICAL COLLEGE SYSTEM (COA 8/22/2008)

EMPLOYMENT LAW:  Discrimination and disparate treatment claim not upheld
DATE RENDERED: 8/22/2008

CAPERTON, J: This appeal arises when a  community college faculty member’s contract was not renewed and filed a claim for retaliation.  McBrearty had had been on a 11-month tenure-track teaching contract, when her conract was not renewed and then brought action against community and technical college, as well as several of the college’s employees, asserting claims arising from the college’s decision not to renew her contract and to place her on administrative leave.  Her claims included retaliation, wrongful termination, and violation of constitutional rights.  College and employees moved to dismiss, and faculty member McBrearty moved for summary judgment. The Circuit Court entered judgment dismissing all claims, and the faculty member filed a pro se appeal. This Court ruled in its order of April 17, 2007, that the individual defendants were not parties to this appeal due to the designation of " et al."  However, that order left the decision of whether the parties are indispensable parties to this panel, and the college then moved to dismiss the appeal.

In protest of the non-renewal of her contract, McBrearty posted two cartoons on the entry way to her office suite which faced the public hallway. One depicted McBrearty with a crutch under the words “Bluegrass College Firing the Handicapped.” The other cartoon depicted two figures dressed in hooded robes with the labels of “Kerley” and the “HLSS Dept.”

McBrearty went to work on January 18, 2006, to find that the cartoons had been removed. Claiming to fear for her safety, she flagged down a community college security officer, which in turn contacted the University of Kentucky Police. Upon entering the office, McBrearty found a note written by Dean Carey, stating that she had “removed the inappropriate and unacceptable signs from your door. Please refrain from displaying inappropriate and/or unacceptable signs in a public space.” McBrearty filed a complaint with the officer and the officer issued a uniform citation for “theft by unlawful taking” against Dean Carey; no further action was taken on the matter.

Shortly thereafter, on Monday, January 23, 2006, President Kerley asked to meet with McBrearty. During this meeting McBrearty was asked to resign. Upon refusal, McBrearty was told to pack up her things and not to return to campus. By letter dated January 25, 2006, KCTCS notified McBrearty that she had been put on paid administrative leave, with full benefits, up to the contract term expiration date.

The Court of Appeals held that failure to include necessary parties on appeal warranted dismissal of appeal; McBrearty failed to make a prima facie case of retaliation based on allegedly reporting sexual harassment; and the cartoons posted by McBrearty were defamatory and not protected speech; McBrearty’s claim of disparate treatment was precluded since she was not “similarly situated” to two other male faculty members.

Digested by Michael Stevens

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