By Kathleen Kapusta, J.D. References to a Greek professor’s accent, although inappropriate and impolite, could not reasonably be considered a motivating factor in the disciplinary action taken against him two years later, ruled the Kentucky Supreme Court, affirming the grant of summary judgment against his state law national origin discrimination claim. Finding further that the university commenced disciplinary proceedings against him well before he indicated his intent to file a civil rights complaint, the court also affirmed summary judgment against his retaliation claim (Charalambakis v. Asbury University, May 5, 2016, per curiam). “Funny.” The popular economics professor taught at the privately owned Christian college without controversy for 15 years. A new provost hired in 2007, however, allegedly made fun of his Greek accent, asking if his students could understand him; calling his accent “funny”; and telling him “But John, you have an accent,” when he expressed interest in being named the department chairman. In 2009, several of his former students, whom he employed in his personal business ventures, complained that, among other things, he did not pay them, rudely berated them, failed to pay payroll taxes withheld from their pay, charged personal expenses to a nonprofit credit card, and was involved in a venture to import wine in conflict with the university’s religious practices pertaining to alcohol consumption. Courageous stands. When the university asked for additional information about his businesses, he claimed this was “a sort of retaliation for my courageous stands ... and for having spoken truth to power.” He did not mention national origin discrimination until months later. Two weeks after the professor mentioned his intent to file a civil rights complaint, he was placed on probation. He subsequently filed a charge of discrimination with the Kentucky Commission on Human Rights. He was terminated three months later for violating the terms of his probation. He then sued the university for, among other things, national origin discrimination and retaliation. The trial court granted summary judgment on everything but a breach of contract claim, which went to trial. A jury found the university had good cause to terminate his employment and the state appeals court affirmed. National origin discrimination. On appeal, the state high court found that the provost’s disparaging references to the professor’s accent and the allegedly more lenient discipline of American-born professors did not qualify as direct evidence of national origin discrimination as an inference was still required to connect the disciplinary measures against him to a bias against foreign-born professors. Nor could the “meager” expressions regarding his accent be considered a motivating factor in the disciplinary action where it occurred two years after the comments. As to his evidence of more favorable treatment toward American-born professors, the court found that the disciplinary proceedings he cited were quite different in scope, subject matter, and quantity than the charges brought against him. Thus, said the court, summary judgment was properly granted on this claim. Retaliation. Before addressing the merits of the professor’s retaliation claim, the court found that a plaintiff in a KRS 344.280(1) retaliation action need not plead that his conduct underlying the retaliation claim was undertaken in good faith. However, a defendant accused of wrongful retaliation under KRS 344.280(1) may in defense present evidence of the plaintiff’s lack of good faith in the underlying matter. Thus, said the court, the university could assert the defense that the professor did not present a valid retaliation claim because his underlying discrimination claim was brought purely to attain a tactical lever to use in the disciplinary action against him. Noting further that the professor eventually withdrew his civil rights claim alleging discrimination based on national origin, and therefore his claim could not be regarded as successful, the court also found that KRS 344.280 does not limit retaliation claims to complaints or other efforts in support of the civil rights law that are underpinned by a successful result. Merits. As to the merits of his claim, the court pointed out that the university commenced disciplinary proceedings against him in June 2009, well before he indicated in mid-November his intent to file a civil rights claim and before the actual filing of his claim in January 2010. This chronology of events precluded him from showing that but for the filing of the claim, the university would not have disciplined him. Further, not only did the university initiate the disciplinary proceedings more than five months prior to the professor’s pronouncement that he intended to file a civil rights claim, the possibility of termination was placed on the table as a possible sanction well before any indication he would pursue remedies under the civil rights act. Moreover, said the court, the professor initially was placed on probationary status, rather than terminated, for what were clearly serious charges. The final step of termination was not taken until after it discovered he had violated the conditions of his probation, which he had agreed in writing to abide. Because he was on notice that he would be terminated if he violated those conditions, the university's decision to terminate him could not have been pretextual.
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