Based in large part on e-mail evidence, along with a delay in discipline, the Kentucky Supreme Court reinstated a jury verdict in favor of a former assistant track coach at the University of Louisville who claimed she was fired because she complained about discrimination. However, the coach lost her back-pay claim because she failed to properly seek new work after the termination. 
Facts
In September 2007, the University of Louisville Athletic Association (ULAA) hired Mary Banker as an assistant track and field coach. According to Banker, she complained to the head coach and an assistant athletic director about male track coaches using language and terms that are demeaning to women and requiring her to perform tasks her male counterparts weren’t required to perform. Eventually, she filed a complaint with HR officials. Three weeks after her complaint, on May 15, 2008, ULAA informed Banker that her contract wouldn’t be renewed.
Banker filed a lawsuit alleging retaliatory discharge in addition to other claims. ULAA repeatedly asked the trial court judge to dismiss the retaliatory discharge claim. The association argued that although it wasn’t announced until May 15, the recommendation to terminate Banker occurred on April 16, a week before she complained to HR. Thus, according to ULAA, she couldn’t possibly prove that her April 22 complaints “caused” her discharge. The trial court judge rejected the requests for dismissal.
Although ULAA witnesses testified that the recommendation to terminate Banker occurred on April 16, a subsequent e-mail was less certain, and the termination decision wasn’t announced until May 15. The e-mail stated that “[Banker] very much knows that her job is under review” and that her performance and disrespectful behavior toward her head coach “will likely” result in nonrenewal of her contract. In addition, the e-mail stated “we cannot wait much longer.”
According to the trial court judge, that evidence could convince a jury that the April 16 recommendation wasn’t final. Thus, the judge allowed the jury to decide whether ULAA’s termination decision was motivated by Banker’s poor performance as a coach or by her discrimination complaints.
Even though it rejected her other claims, the jury concluded that ULAA retaliated against Banker, firing her because she complained about discrimination to HR. The jury awarded her lost wages and damages for emotional distress. ULAA appealed, and the court of appeals agreed with ULAA and overturned the jury verdict.
The appellate court’s decision relied heavily on Banker’s trial testimony that she had no knowledge of when ULAA made the final termination decision. According to the court of appeals, the testimony from ULAA witnesses that the decision was made April 16—a week before Banker’s complaints to HR—was therefore “unopposed,” there was no factual “dispute” that the termination decision preceded her complaints to HR, and the jury shouldn’t have been allowed to decide otherwise.
The court of appeals applied the reasoning of Clark County School Dist. v. Breeden, a case in which the U.S. Supreme Court held that when an employer “was contemplating” a specific disciplinary action before an employee complained about discrimination, the employer’s later implementation of the disciplinary action “is no evidence whatever” of illegal retaliation. Banker appealed to the Kentucky Supreme Court.
Kentucky Supreme Court’s decision
The Kentucky Supreme Court agreed with the trial court judge, overturned the court of appeals’ decision, and reinstated the jury verdict in favor of Banker. According to the supreme court, there was more than enough evidence to allow a jury to decide in favor of Banker. The court noted that in addition to the e-mail, the delay in announcing the termination of an underperforming employee could be viewed as inconsistent with the claim that the decision was reached earlier, and it undercut the claim that the coach’s performance was truly the motivating factor.
The court also discussed the damages awarded to Banker. While she offered no testimony from physicians, testimony from her and her family that she was “upset,” “depressed,” and “stressed” and had lost weight and lost sleep supported the award of damages for emotional harm, humiliation, and embarrassment. However, because she also testified that she didn’t pursue other coaching jobs, the court ordered that the award of lost wages be stricken. Mary Banker, et al. v. University of Louisville Athletic Association, Inc., S.W.3d , 2013-SC-000108-DG (August 20, 2015).
Bottom line
This case offers lessons to both employers and employees. First, employers always need to be prepared to offer persuasive evidence of the legitimate nonretaliatory reasons for discipline and discharge decisions. But you also need to understand that your explanation of the events, documentation, and statements will be challenged, and a jury may decide to believe the employee’s explanation.
Here, ULAA explained that the termination announcement was delayed to prevent a negative impact on “team dynamics” and offered evidence that Banker wasn’t an effective coach. However, that argument was used against the employer as proof that “if she was that bad, you would not have delayed the decision.” Clarity and consistency are important. Delayed discipline can be deadly. Gather the evidence. Make the decision. Implement the discipline or termination.
Likewise, this case teaches employees that the courts take the duty to “mitigate” damages seriously. If an employee fails to take reasonable steps to find new employment, she risks losing her pay-based damages, even if a jury agrees that she suffered illegal treatment.
James D. Cockrum is an attorney with Frost Brown Todd LLC in Louisville, Kentucky. He may be contacted at jcockrum@fbtlaw.com.