Webb v. Carter Cnty. Bd. of Educ.

JIM WEBB APPELLANT v. CARTER COUNTY BOARD OF EDUCATION; KEILA RODGERS-BENDER, BOARD MEMBER;RONNIE DOTSON, INDIVIDUALLY; AND RONNIE DOTSON,AS SUPERINTENDENT OF CARTER COUNTY SCHOOLS APPELLEES

NO. 2018-CA-000826-MR

Commonwealth of Kentucky Court of Appeals

JANUARY 24, 2020

NOT TO BE PUBLISHED

APPEAL FROM CARTER CIRCUIT COURT

HONORABLE JOHN DAVID PRESTON, SPECIAL JUDGE

ACTION NO. 14-CI-00025

OPINION

AFFIRMING

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BEFORE: DIXON, JONES, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Jim Webb appeals from the Carter Circuit Court's order granting the appellees' motion for summary judgment and dismissing Webb's claims for age-related discrimination, defamation, and being placed in a false light by the appellees.¹ We affirm.

The facts and procedural history are summarized in the circuit court's April 30, 2018, order, and we repeat them here:

1) The Plaintiff Jim Webb was previously employed as maintenance director for Defendant Carter County Board of Education. He was terminated from his position as maintenance director on April 16, 2013 because of what the Defendant characterized as dishonesty and insubordination arising from the fact that [Webb] gained prohibited access to school district fuel pumps by use of an unauthorized key.²

2) [Webb] alleges in his complaint that he is entitled to recover under the Kentucky Civil Rights Act, KRS [Kentucky Revised Statutes] Chapter 344, because of age discrimination. He also claims that he is entitled to recover damages against the Defendants based on a claim of slander per se, which he claims occurred during a conference attended by John Baumgardner, Charles Baker, and Defendant Dotson, which occurred on April 17, 2013. The third count of his complaint is that he is entitled to recover damages based on invasion of privacy and placing him in afalse light. He seeks compensatory damages, punitive damages, and trial by jury.

3) The record discloses in this case that the Defendant school district had two gas pumps which were used to issue fuel to district owned vehicles. The school district was apparently experiencing a lot of fuel use, and the Superintendent ordered locks placed on the gas pumps, with keys being placed in the transportation offices adjoining the pumps, forcing everyone who obtained gas to fill out a log. The record is uncontroverted that [Webb] had the district locksmith make him a key to the gas pumps. Defendant Dotson testified that [Webb] asked for a key on two occasions and was denied access to the key. [Webb's] testimony was somewhat more equivocal. He stated that he had two conversations with Superintendent Dotson about getting a key to the gas pumps but testified that there was some equivocation in Mr. Dotson's response. Nonetheless, the undisputed and uncontradicted facts of this case are that [Webb] knew that there was a policy in effect which limited access to keys to the gas pumps and obtained a key without obtaining the explicit permission from Defendant Dotson, the school superintendent.

4) [Webb] also complains in his defamation and invasion of privacy claims that the day after [Webb] was fired, Defendant Dotson had a video conference with district principals. The principals were advised that a new maintenance supervisor had been appointed. In that conversation, Dotson told the principals that the maintenance department had received an unfavorable audit, but [Webb's] name was not mentioned during the meeting.

The circuit court then determined that Webb's three claims were deficient and granted the appellees' motion for summary judgment. Webb filed a timely notice of appeal and asks this Court to remand the matter for trial by jury.

As a preliminary matter, the appellees argue that Webb's brief failed to comply with the mandate of Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v) that an appellant state where in the record he preserved an issue for appeal. "[A]n appellate court cannot consider items that were not first presented to the trial court." Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Thus, CR 76.12(4)(c)(v) serves an important purpose. "It is not so much to ensure that opposing counsel can find the point at which the argument is preserved, it is so that we, the reviewing Court, can be confident the issue was properly presented to the trial court . . . ." Id. Past panels of this Court have held that "substantial compliance" with this rule is mandatory. Id. See also Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990). "It is not the job of this or any appellate court to scour a record to determine whether these citations support a party's assertions. Walker v. Commonwealth, 503 S.W.3d 165, 171 (Ky. App. 2016)." Prescott v. Commonwealth, 572 S.W.3d 913, 918 (Ky. App. 2019).

The appellees are correct that Webb's brief fails to expressly state where he preserved the issues raised on appeal. And Webb failed to attempt to remedy this omission by filing a reply brief.

This being the case, our options are "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions; or (3) to review the issues raised in the brief for manifest injustice only." Briggs v. Kreutztrager, 433 S.W.3d 355, 361 (Ky. App. 2014) (citation and quotation marks omitted). Rather than penalize the appellant for errors committed by counsel, we elect to look past this omission and proceed without sanction against Webb; and we do so with the confidence that his counsel will more strictly comply with the mandate of CR 76.12 in future appeals.

Webb first argues that the circuit court erred in dismissing his claim for age discrimination, insisting that he presented sufficient evidence of a prima facie case that should have survived appellees' motion for summary judgment. We disagree.

We begin by stating the standard of review:

Summary judgment may be granted only if "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. The trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Further, "a partyopposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Id. at 482. On review, the appellate court must determine "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).

Flock v. Brown-Forman Corp., 344 S.W.3d 111, 114 (Ky. App. 2010).

In an age discrimination case, summary judgment requires further analysis, namely:

The plaintiff must first establish a prima facie case of age discrimination by showing that [he]: (1) was a member of a protected class; (2) was discharged; (3) was qualified for the position from which [he] was discharged; and (4) received disparate treatment from a similarly situated younger person or was replaced by a significantly younger person. [Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 496 (Ky. 2005) ]. Under the McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ] framework, a plaintiff is not required to introduce direct evidence of discrimination. Kline v. Tennessee Valley Authority, 128 F.3d 337, 349 (6th Cir. 1997); Williams [v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 496 (Ky. 2005) ].

Flock, supra, at 114.

Conley v. Mountain Comprehensive Care Center, Inc., 533 S.W.3d 705, 707-08 (Ky. App. 2017). Here, the circuit court found that Webb had failed to make a...