STUMBO, Judge.
Stephon Carter appeals from a jury verdict in favor of the University of Kentucky (hereinafter UK). Carter argues that he should have been granted directed verdicts on his claims and that the trial court erred in prohibiting his expert from testifying. We find no error and affirm.
This case has previously been before this Court; therefore, we will utilize that recitation of facts.
Carter v. Univ. of Kentucky, No. 2010-CA-001621-MR, 2011 WL 5600614, at 1-2 (Ky. App. 2011).
After reviewing Carter's appeal, the previous panel of this Court affirmed in part, reversed in part, and remanded. The Court found that summary judgment was inappropriate in regards to Counts 3 and 7. The Court remanded the case to the trial court.
Upon remand to the trial court, Carter indicated that he intended to call Dr. Robert Reber, a professor at Western Kentucky University, as an expert witness. Carter indicated that Dr. Reber would testify that UK's treatment of Carter was discriminatory and against UK policy. Dr. Reber would also have testified about the employment personnel practice known as the "Hot Stove Rule". This rule holds that personnel rules set forth by human resources must be applied consistently and fairly. After Dr. Reber was deposed, UK moved to exclude him from testifying at trial. UK argued that Dr. Reber held no opinions as to whether or not UK violated its personnel policies or discriminated against Carter. UK argued Dr. Reber's testimony would not assist the trier of fact. After a hearing on the issue, the trial court sustained UK's motion.
A jury trial began on March 5, 2014, concerning Carter's remaining two claims. Multiple witnesses testified over several days. At the close of evidence, both parties moved for directed verdicts on the two claims. The trial court ruled that enough evidence had been presented by both parties to submit the case to the jury. On March 12, 2014, the jury returned a verdict in favor of UK. This appeal followed.
Carter's first argument on appeal is that the trial court erred by failing to grant a directed verdict in his favor on his disparate treatment claim because the evidence proved he was treated differently than two white employees, Clay Sturgeon and Carol Hilton, who also committed acts of misconduct. Carter was terminated from employment while Sturgeon was only suspended for five weeks and Hilton was not disciplined.
Simpson County Steeplechase Ass'n, Inc. v. Roberts, 898 S.W.2d 523, 527 (Ky. App. 1995)(citations omitted).
To prove a prima facie claim of disparate treatment "the plaintiff must produce evidence which at a minimum establishes (1) that he was a member of a protected class and (2) that for the same or similar conduct he was treated differently than similarly-situated non-minority employees." Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)(citations omitted). "Upon establishing a prima facie case of discrimination, the burden shifts to the defendant-employer to articulate a `legitimate nondiscriminatory' reason for its action." Brooks v. Lexington-Fayette Urban Cnty. Hous. Auth., 132 S.W.3d 790, 797 (Ky. 2004)(citation omitted).
In viewing the evidence presented on behalf of UK as true, we believe that the trial court correctly denied Carter's motion for directed verdict and submitted the issue to the jury. Hilton was alleged to have falsified timesheets and deleted purchase order records. Sturgeon was alleged to have stolen office equipment and changed one purchase order. Mary Ferlan, Executive Director of Human Resources, testified that she was tasked with investigating the allegations against Hilton and Sturgeon. At trial, she testified that although these were serious allegations, the investigation revealed no evidence that they committed offenses which would have required termination.
Ferlan testified that Sturgeon did not steal office equipment, but was allowed to have these items at home in order to work from home. She stated that Sturgeon did not complete the proper sign out paperwork when he took the equipment home, but upon being informed of this, he completed the paperwork. He also returned all the equipment. As to the altered purchase order, Ferlan testified that he was ordered to change it by Renfro, his supervisor. Ferlan also testified that after Sturgeon changed the record, he changed it back because he believed Renfro was wrong. Ferlan did not believe Sturgeon's actions were terminable offenses.
As for Hilton, Ferlan testified that there was no evidence that she falsified her timesheets. She testified that during the period in time when Hilton was alleged to have falsified the timesheets, Hilton was actually working a flexible schedule in order to care for a sick family member. Renfro, Hilton's supervisor, approved of this schedule. Ferlan testified that there was no evidence that Hilton did not work the hours she claimed she did on her timesheet. As to the allegation of Hilton changing purchase order records, Ferlan testified that Hilton admitted to deleting a few purchase order records, but it was at the behest of Renfro and only because the purchase orders had been mistakenly entered twice. Ferlan testified that there was no evidence contrary to Hilton's admission; therefore, she did not believe Hilton committed a terminable offense.
On the other hand, Carter admitted to removing the calendar from Renfro's desk and changing a purchase order on the computer. Carter claimed he did these things at the request of his supervisor, Renfro, but evidence presented at trial suggested that Renfro told Carter he had been fired for stealing and wanted Carter's help in covering his tracks. Sufficient evidence was presented at trial that the alleged misconduct committed by Hilton and Sturgeon was not misconduct at all or, at most, a minor violation of UK policy. The trial court properly denied Carter's motion for directed verdict because UK presented evidence that Carter, Hilton, and Sturgeon were not similarly situated and that UK had a legitimate reason for treating Carter differently than Hilton and Sturgeon.
Carter's second argument on appeal is that the trial court erred in not granting his motion for directed verdict on his breach of contract claim. Carter claims that all the evidence presented at trial proved that UK did not follow its own personnel rules and acted in bad faith in its application of the rules against him. The rules Carter alleged were not followed are rules 62, 12, and 7. We believe the trial court correctly denied the motion for directed verdict.
Rule 62 concerns corrective action. It sets forth the procedure human resources should follow when an employee's job performance or conduct needs to be improved. Specifically, Carter argues that UK failed to follow this policy when it suspended him for almost three months when rule 62 only allows for a three-day suspension. Kim Wilson, Vice President of Human Resources, and Ferlan testified that rule 62 did not apply to Carter's case because his misconduct was a terminable offense, which was regulated by human resources rule 12. Because we have to accept this testimony as true for purposes of directed verdict, this issue was properly submitted to the jury.
Rule 12 concerns reasons an employee can be terminated for misconduct. Carter argues that UK did not follow this rule because it should have also terminated Hilton and Sturgeon. As previously discussed, evidence presented at trial indicated that Hilton and Sturgeon did not commit terminable offenses. Directed verdict was properly denied.
Rule 7 deals with Carter's Stage 2 grievance. As previously discussed, Carter attempted to appeal his suspension and termination by sending a certified letter to Kim Wilson. The certified letter was received by the UK post office, but was never retrieved by Wilson. Carter was informed that if he wished to appeal his suspension and termination, he must appeal to Wilson. Although the letter was not retrieved by Wilson from the UK post office, no evidence was presented that Wilson, or anyone else at UK, intentionally prohibited Carter from perfecting his appeal. Evidence at trial indicated it was Carter's responsibility to ensure his appeal was successfully perfected. This was sufficient to make this a jury issue.
Carter's final argument on appeal is that the trial court erred in prohibiting Dr. Robert Reber to testify. The proper standard for review of evidentiary rulings is abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). We do not believe the trial court abused its discretion in prohibiting Dr. Reber's testimony.
Carter intended to introduce Dr. Reber as an expert in human resources and management policies. Dr. Reber would also have introduced treatises that explain the "Hot Stove Rule". Kentucky Rule of Evidence (KRE) 702 states:
Here, the trial court entered a 22-page order detailing the reasons it was prohibiting Dr. Reber's testimony. The court found that his testimony would not assist the trier of fact because, after reviewing his deposition, the court found that Dr. Reber held no opinion as to why UK treated Carter differently than Hilton and Sturgeon. The court also believed that the factual questions presented in the case were not ones which would require an expert to help the jury understand. Whether or not human resources policies were being applied consistently and fairly is common knowledge and something a jury could determine without an expert. The trial court did not abuse its discretion.
For the foregoing reasons, we affirm.
ALL CONCUR.
