CAPERTON, Judge:
Rebecca Burton appeals from the grant of summary judgment in favor of the Appellees—the Kentucky State Police ("KSP"), Tracy Collins,
The facts that give rise to this appeal stem from Burton's brief stint
Thereafter, Burton resigned from her employment with the Kentucky State Police
The trial court agreed with the Appellees that they were entitled to summary judgment based on the doctrine of election of remedies, and that they were entitled to official immunity and qualified immunity. Additionally, the trial court found that, even conceding all facts alleged by Burton to be true, she had failed to state a claim upon which relief can be granted. The trial court found that her allegations were not sufficient to sustain her claims of hostile work environment, sexual harassment, constructive discharge, or intentional infliction of emotional distress. The trial court determined that if Burton's allegations—that she was treated crudely and was perhaps subjected to verbal abuse— were true, that such treatment did not establish a violation of her rights. She had not alleged any disparate treatment based on gender, and the trial court further noted that it is undisputed that many women have successfully completed the KSP academy. The trial court additionally noted that the alleged behavior is not outside the bounds of acceptable conduct in a military-style training program in which the cadets are required to be subjected to stressful situations. Given that troopers on the road are subjected to much worse verbal abuse from the public, and must be prepared to not overact to such abuse, the trial court determined that it is important to the KSP to see how cadets react to stressful situations, and that the academy is not a finishing school or a purely academic program. Thus, the trial court concluded that the record did not contain sufficient evidence to establish a prima facie case that Burton's rights were violated during her brief time as a trooper cadet, and granted the Appellees' motion for summary judgment. It is from those findings that Burton now appeals.
On appeal, Burton presents two arguments; namely, that the Appellees were not entitled to summary judgment, and that Burton was treated unlawfully by the Appellees. The Appellees counter-argue that the trial court properly granted summary judgment for a number of reasons, more specifically, the doctrine of election of remedies, the Appellees were entitled to governmental immunity, and individual Appellees were entitled to qualified immunity. The Appellees argue first that Burton's KRS Chapter 344 claim against KSP is barred by the doctrine of election of remedies. Second, that Burton's intentional infliction of emotional distress ("IIED") claim against KSP and official capacity defendants was properly dismissed due to the KRS Chapter 344 claim, governmental immunity, and that the IIED claim must fail against the individual defendants based on the elements composing a claim of IIED. Third, Burton's Chapter 344 claim fails on the merits. Fourth, the individual defendants were entitled to qualified immunity on the IIED claim. With these arguments in mind, we now turn to the applicable law.
However, "a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial." Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky.1992), citing Steelvest, supra. See also O'Bryan v. Cave, 202 S.W.3d 585, 587 (Ky.2006); and Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky.App.2004). Since summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky.App.2001).
The trial court's grant of summary judgment was premised upon three grounds: 1) the doctrine of election of remedies, 2) the Appellees' entitlement to official immunity and qualified immunity, and 3) Burton's failure to establish a claim upon which relief could be granted. On appeal, Burton has failed to address the trial court's judgment wherein it concluded that the Appellees were entitled to official and qualified immunity; therefore, we decline to conduct an independent review of this conclusion of the trial court and, accordingly, affirm the grant of summary judgment upon these grounds. See Milby v. Mears, 580 S.W.2d 724, 727 (Ky.App.1979).
Next, we turn to the trial court's conclusion that the Appellees were entitled to summary judgment based on the doctrine of election of remedies. In the case sub judice, Burton filed a complaint with the Kentucky Commission on Human Rights, alleging that she had been sexually harassed during her employment. KCHR dismissed the complaint on March 20, 2008, based on a finding of no probable cause. Instead of seeking redress of that finding by the KCHR, on November 3, 2008, Burton filed her complaint with the trial court, alleging hostile work environment, sexual harassment, constructive discharge, and intentional infliction of emotional distress against the Appellees. We agree with the trial court that Burton's claim before the court was barred by the doctrine of election of remedies. KRS 344.270 states:
Moreover, in Vaezkoroni v. Domino's Pizza, Inc., 914 S.W.2d 341 (Ky.1995), our Kentucky Supreme Court determined that a finding of "No Probable Cause" by a county human rights commission barred a subsequent employment discrimination claim under KRS Chapter 344 in circuit court, and noted:
Vaezkoroni at 342.
In the case sub judice, Burton sought relief for the alleged violation of her civil rights from the KCHR and obtained a final determination from KCHR, which she did not contest. Thereafter, Burton filed another claim with the circuit court seeking relief based on the same grievance. As elucidated by Vaezkoroni and as set out in KRS 344.270, Burton's subsequent litigation in circuit court was barred. The trial court correctly determined that the Appellees were entitled to summary judgment based upon the doctrine of election of remedies. Accordingly, we affirm the grant of summary judgment upon this ground.
Last, we address the trial court's grant of summary judgment to the Appellees and against Burton for failure to establish a claim for sexual harassment and hostile work environment, or IIED.
Ammerman at 798 (internal citations omitted).
In light of Ammerman, we agree with the trial court that Burton failed to establish claims for sexual harassment and hostile work environment. While Burton's treatment at the Kentucky State Police Academy may have been different from what would be expected in the private-sector work environment, it was not severe or pervasive enough to satisfy the standards articulated by Ammerman. Thus, the trial court correctly determined that Burton had failed to establish a claim for sexual harassment and hostile work environment.
We also agree that Burton failed to establish a claim for IIED. This Court, in Wilson v. Lowe's Home Center, 75 S.W.3d 229 (Ky.App.2001), addressed the tort of IIED and noted:
Wilson at 237.
In the case sub judice, the facts alleged by Burton during her brief time at the KSP Academy could be considered impolite and discourteous; however, they simply did not arise to the level of outrageous conduct required by Wilson. Accordingly, the trial court did not err in granting summary judgment on this issue.
In light of the foregoing, we affirm the grant of summary judgment to the Appellees.
ALL CONCUR.