EMPLOYMENT – Racial discrimination, retaliatory discharge: Adams v. Lexington-Fayette Urban County Government (COA 2/13/2009)

Adams v. Lexington-Fayette Urban County Government
2009 WL 350600
Opinion by Judge Thompson; Judge VanMeter and Senior Judge Henry concurred.
The Court affirmed a judgment entered pursuant to a jury verdict in favor of appellees on appellant’s claim for racial discrimination and retaliatory discharge.

The Court held:
1) The trial court order severing appellant’s case from that of his co-plaintiffs was proper under CR 42.02, as it was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles when it was issued almost three years before a jury was impaneled and there was sufficient time for appellant to prepare his case.

2) The appeal as it related to the co-plaintiffs must be dismissed because their litigation remained in the trial court for disposition.

3) The trial court did not err in excluding portions of a report created as a result of a fact-finding investigation. While the report fell within the public records hearsay exception, the third-party statements contained therein constituted inadmissible double hearsay.

4) The trial court did not err in excluding appellee’s answer and motion for partial dismissal filed in the wrongful termination case filed by appellant’s supervisor. First, the unverified answer and motion were defenses to the wrongful termination allegation and could not be deemed judicial admissions that appellee vicariously, through a supervisor, engaged in discriminatory employment practices. Second, the statements contained in the documents were not so contrary to appellee’s interests that they fell under the purview of KRE 804(b)(3). Third, the trial court did not abuse its discretion in ruling the documents were cumulative in nature. Fourth, the trial court did not abuse its discretion in excluding the documents for impeachment purposes when they were prepared and signed by counsel, not the witness.

5) The trial court did not err by denying appellant’s motion for a directed verdict, as the evidence was sufficient for a jury to reasonably find that the supervisor engaged in unequal employment practices but that race was not the motivating factor and that appellant was not subjected to retaliation.
6) The jury instructions were not inadequate or defective. a) The instruction requiring the jury to find that appellant suffered a materially adverse change was permissible. b) The instructions did not require that appellant prove his race was the sole factor for any materially adverse change. c) The fill-in-the-blank instruction forms requiring the jury to state what materially adverse actions were taken were not impermissible. d) The trial court was not required to give a vicarious liability instruction. e) The trial court did not err by including extraneous language in an instruction as there was no indication that the jury was misled. f) The instructions did not improperly constrict what was illegal conduct. g) The trial court was not required to give a missing evidence instruction as there was no evidence that appellee intentionally destroyed evidence favorable to appellant. h) The trial court was not required to instruct that disparate treatment was legally equivalent to discrimination.

7) The doctrine of res adjudicata was not applicable to the issues of whether the trial court erroneously denied a request for appellee to produce a report purportedly authored by its counsel, denied a request to call counsel as a witness, and refused to disqualify appellee’s counsel.

8) Any records or reports related to the investigation of the claim constituted work product and any possible hardship to appellant was rectified by a trial court order requiring appellee to provide a list of the individuals interviewed during the investigation.

9) Appellant was not prejudiced by the trial court’s refusal to permit appellant to call appellee’s counsel as a witness or to disqualify counsel as there was no evidence that counsel had any specialized or personal knowledge that could not be gained from other sources.

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