In July of 2013, the Court of Appeals of Kentucky heard a case in where a pro se plaintiff filed a lawsuit alleging race discrimination and retaliation. (See Deng v. Norton Healthcare, Inc., 2013 WL 3357626 (Ky. App. 2013)). In this Louisville race discrimination and retaliation case the lower court dismissed plaintiff’s case, but this appellate court reversed in part and affirmed in part. This appellate court found that the plaintiff did meet the elements of his prima facie case to go forward, but that the defense did present sufficient evidence to show that the reason for firing was not pretextual and thus the count for discrimination was dismissed. But, as to plaintiff’s two retaliation claims, the court allowed plaintiff to move forward on one of them.
Plaintiff was hired by the defendant as a linen clerk in 2002. Id. By 2006 he had advance to the position of Personal Care Assistance. Id. Then in 2007, plaintiff and a female nurse got into a verbal altercation. It was alleged that the plaintiff threatened the other nurse and an investigation ensued. After the investigation, plaintiff was terminated. He appealed the termination. He won his appeal and was advised to get a different position. Plaintiff applied for a different position but was not hired for any new position within the time available and so plaintiff was terminated as of November 28, 2007.
Plaintiff hired a Louisville race discrimination and retaliation lawyer shortly after he was fired. That attorney sent a letter to his former employer to try to get plaintiff his job back, but it was to no avail. So, plaintiff filed a pro se complaint on February 27, 2008. Then plaintiff’s Louisville race discrimination and retaliation lawyer discontinued representation of plaintiff. Plaintiff then found a new Louisville race discrimination and retaliation lawyer who then filed an amended complaint on February 28, 2010, alleging breach of contract, employment discrimination under the Kentucky Civil Rights Act and retaliation. Id.
In January of 2012, the trial court granted defendant’s motion for summary judgment. As for the breach of contract claim, the plaintiff’s Louisville race discrimination and retaliation lawyer conceded this claim as Kentucky is an at will state and so this count was not viable. The trial court looked at the race discrimination claim and found that the plaintiff did not present any evidence that he received disparate treatment from persons outside of his protected class. But, the appellate court found that he had because of his particular ethnicity and national origin. There were racial and ethnic remarks directed at him by personnel of the defendant.
But, the defendant is allowed to show that the firing was valid if it can articulate a legitimate non-discriminatory reason for its actions. To which the plaintiff can rebut this by showing that 1) the proffered reasons fro the employment decision are false, 2) the proffered reasons dis not actually motivate the decision, or 3) the reasons given were insufficient to motivate the decision. (cites omitted). Pretext cannot be established by merely questioning the soundness of the employer’s business judgment. (cites omitted).
Finally, as to the retaliation claims, the one with regard to the statements made by the co-workers was dismissed because there was no proof that the dismissal was based on these statements. But, the statement made by the defendant’s lead counsel was upheld. The defendant’s lead counsel told plaintiff’s Louisville race discrimination and retaliation lawyer that the defendant would not consider rehiring plaintiff because he had filed a discrimination claim against it. KRS 344.280 makes it unlawful for one or more persons “to retaliate or discriminate in any manner against a person .. because he has mad e a charge, filed a complaint, testified, assisted or participated in any manner in any investigation, proceeding, or hearing under [the Civil Rights Act].” (cites omitted). The statement by the defendant’s lead counsel is a perfect example of this type of retaliation. Thus, plaintiff’s retaliation claim was allowed to stand.
If you have been the subject of a Louisville race discrimination and retaliation lawyer case, please call and speak to a Louisville race discrimination and retaliation lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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