Petrilli's Appeal

The Kentucky Court of Appeals takes up the case of Petrilli v Silberman Tuesday.

In preparation for the hearing KSN&C asked both sides for a copy of their appellate briefs, which are essentially public records. Only one side (attorney J Dale Golden) complied with our request. In a conversation with FCPS attorney John McNeill, KSN&C was told that he didn't see any problem giving us a copy - that is until he realized who we were. Once he recalled, he declined. Go figure.

The central issue on appeal is a threshold jury instruction that boiled the entire case down to the question of whether Appellant Peggy Petrilli, the former principal of Booker T Washington Academy, voluntarily resigned - period. Covering the trial, I recall being stunned by that instruction at the time.

Jurors deliberated for about 3 1/2 hours before concluding that Petrilli "voluntarily resigned from her position as principal of Booker T. Washington Academy on August 27, 2007."

Petrilli claims the jury instruction was inappropriate since she was actually forced out by Fayette County Schools Superintendent Stu Silberman in what is known as a constructive discharge.

KSN&C Timeline of the events here.

Golden throws a lot of spaghetti at the wall arguing:

· Federal law is applicable in interpreting the Kentucky Civil Rights Act.

· The trial court erred in creating a threshold jury instruction that superseded the elements for reverse discrimination, retaliation, and whistleblower.

· Petrilli Was Entitled to a Directed Verdict on Her Reverse Race Discrimination Claim.

· Petrilli’s Motion For a Directed Verdict On Her Retaliation Claim Should Be Granted AND THE THRESHOLD INSTRUCTION WAS ERRONEOUS.

· the trial court erred in failing to give a separate instruction on whistleblower, failing to direct a verdict, and failing to give a punitive damages instruction.

· It was Error to Dismiss Petrilli’s Constitutional Claims and the Trial Court Erred in Failing to Direct a Verdict on Behalf of Petrilli on her Constitutional Claims.

· THE TRIAL COURT ERRED IN DISMISSING THE CLAIMS AGAINST ALLEN.

· The trial Court erred in its handling of the Batson issue.

· THE TRIAL COURT ERRED IN OVERRULING PETRILLI’S MOTION IN LIMINE ON CHARACTER EVIDENCE.

· THE TRIAL COURT ERRED IN REFUSING TO SANCTION ATTORNEY MCNEILL AND IN REFUSING TO ALLOW THE SECOND DEPOSITION OF DOUG ADAMS.

· THE TRIAL COURT ERRED BY PREVENTING PETRILLI FROM TESTING THE SUFFICIENCY OF THE “ADVICE OF COUNSEL” DEFENSE.

· THE TRIAL COURT ERRONEOUSLY ALLOWED MCNEILL TO READ FROM DEPOSITIONS. (emphasis in original)

Petrilli is asking the Court of Appeals to :

1. Reverse the trial court for use of a threshold instruction;

2. A directed verdict for Petrilli on the issues of protected class, being qualified for her position, and being replaced by a person of a different race;

3. A directed verdict for Petrilli on the adverse employment issue or, at the very least, a jury instruction setting forth the elements of constructive discharge as tendered by Petrilli;

4. Reverse the trial court and find that Petrilli is entitled to a punitive damages instruction regarding the whistleblower claim;

5. Reverse the trial court’s directed verdict on Petrilli’s constitutional claim;

6. Reverse the trial court’s dismissal of the defamation claim against Allen and the other Defendants;

7. Reverse the trial court’s arbitrary discovery deadline of August 27, 2007;

8. Allow Petrilli to take the discovery deposition of Allen;

9. Reverse the trial court’s ruling on the motions in limine regarding character evidence;

10. Allow Petrilli to retake Adams’ deposition, sanction opposing counsel for his misconduct and award costs and attorneys’ fees; and

11. Direct a verdict in favor of Petrilli on all constitutional claims;

12. Permit Petrilli to test the sufficiency of the “advice of counsel” defense;

13. Reverse the trial court’s erroneous ruling which allowed for improper impeachment and rehabilitation; and,

14. Remand this matter for a new trial.

The crux of the appellant's brief is...

B. The trial court erred in creating a threshold jury instruction that superseded the elements for reverse discrimination, retaliation, and whistleblower. (Preserved at 7/28/09, 08:05:20—09:20:00 a.m., tape 22/3/09/CD/108-8).

This Court uses a de novo standard of review for erroneous jury instructions.[1] The jury was given the following improper threshold jury instruction:

Do you believe from the evidence that the Plaintiff, Peggy Petrilli, voluntarily resigned from her position as principal of Booker T. Washington Academy on August 2, 2007?[2]

The jury marked “yes” and returned to the courtroom where the trial judge discharged them from further duties. The threshold instruction was given in error because it is completely different from the elements of Petrilli’s claims for reverse discrimination, retaliation, and whistleblower, as demonstrated by the jury instructions given by the court.[3]

Petrilli was entitled to a jury instruction regarding her claim of constructive discharge. The standard for constructive discharge is whether the “conditions created by the employer’s action are so intolerable that a reasonable person would feel compelled to resign.”[4] Thus, what may appear to a layman on the jury to be a voluntary resignation may in fact have been compelled by an employer’s conduct. Petrilli was entitled to a jury instruction explaining the difference. In addition, proof of a constructive discharge is but one of a myriad of things that satisfy the requirement of an adverse employment action that is necessary for a reverse discrimination instruction[5] and a retaliation jury instruction.[6]

In Brooks, the court noted: “While constructive discharge may constitute an adverse employment action within the meaning of the KCRA, not all adverse employment actions constitute constructive discharge.”[7] Although Petrilli submitted a constructive discharge instruction, none was given.[8] Constructive discharge instructions are submitted to the jury in these types of cases because a constructive discharge is a type of adverse employment action.[9] The pivotal issue is whether the employee felt compelled to resign. However, the act of resignation as a part of a constructive discharge is but one of many potential adverse employment actions available to support a jury verdict.

(1) The Elements of a reverse discrimination claim are as follows:

(a) Petrilli is a member of a protected class;

(b) She experienced an adverse employment action;

(c) She was qualified for her position of employment; and

(d) She was replaced by a person of a different race.[10]

(2) The elements of a retaliation claim are as follows:

(a) She engaged in a protected activity under KRS 344.040;

(b) This activity was known to the Defendants;

(c) Defendants took an adverse employment action against Petrilli; and

(d) A causal connection exists between that adverse employment action and the Petrilli’s exercise of the protected activity.^[11]

(3) The elements for a whistleblower claim are as follows:

(a) She reported actual or suspected violations of law, mandates, rules or policies;

(b) The Defendants caused her to be subjected to reprisal or directly or indirectly used official authority or influence against her as a result of her report.[12]

The trial court specifically found that Petrilli waived all of her claims against the Defendants when she resigned.[13] This rationale on the part of the trial court was erroneous because employers cannot absolve themselves of liability by successfully compelling employees to resign. If Petrilli resigned on a Wednesday, it does not negate retaliation exercised against her in violation of the whistleblower statute that occurred on the prior Tuesday or any day prior to that. In fact, it is not uncommon for employees to resign from their employment when employers act in an unlawful manner.

The discrimination and retaliation claims share a common element of an “adverse employment action.” Thus, if Petrilli resigns on a Wednesday, it does not negate retaliation, or discrimination, or reprisal that occurred on the prior Tuesday or any day prior to that. Again, it is not uncommon for employees to resign from their employment when employees act in an unlawful manner. Petrilli’s resignation is not dispositive because constructive discharge is but one of a myriad of potential adverse employment actions that satisfy the prima facie elements of discrimination and retaliation.

[W]hile constructive discharge may constitute an adverse employment action within the meaning of the KCRA, not all adverse employment actions constitute constructive discharge.[14]

Thus, an adverse employment action includes, but is not limited to, “constructive discharge.” Violations of the law can occur prior to, during, or even after an employee attempts to resign.

Voluntariness is but one component of the larger issue of constructive discharge. Along the same vein, Parker v. Board of Regents of Tulsa Junior College, held that a “resignation is involuntary and coerced when the totality of the circumstances indicates the employee did not have the opportunity to make a free choice.”[15] Scharf v. Dept. of Air Force advises that, in order “to determine whether a resignation or retirement is voluntary, a court must examine the surrounding circumstances to test the ability of the employee to exercise free choice.”[16] Furthermore, “voluntariness is vitiated when one” of the following occurs:

· Employee resigns under duress;

· Employee unsuccessfully tries to withdraw resignation before its effective date;

· Employee submits a resignation under time pressure;

· Employee fails to understand the situation due to mental incompetence; or

· Resignation obtained by misrepresentation or deception.[17]

There was ample evidence presented concerning the strict time constraints imposed on Petrilli. This is important, because a true, voluntary resignation is done when the employee wants to do it, not when the employer orders it done by a certain time.

In Commonwealth of Kentucky v. Stosberg, the Plaintiff signed a resignation letter after her employer attempted to force her to transfer to another location.[18] In effect, the circumstances her employer placed her in left her with no other option. The court thus determined that a constructive discharge occurs where the “conditions created by the employer’s actions” compel the Plaintiff to resign.[19] Northeast Health Management, Inc. v. Cotton, et al. also deals with a situation in which two employees tendered resignation letters.[20] In that case, the employees resigned after their supervisor stopped speaking to them and began assigning their lunch and break times. The jury ultimately found that the employees had been constructively discharged. The Court of Appeals upheld the jury’s decision. In doing so, the Court of Appeals stated that, “while the conditions alleged may not have been the most egregious imaginable, they surely rise to the level that the jury had sufficient evidence to find a constructive discharge.”[21]

Walther testified at length about Petrilli’s financial constraints due to the fact that, unlike teachers, administrators are not covered by the KEA insurance and, therefore, administrators have to pay for their own attorneys.[22] Thus, Petrilli would have paid $25,000.00 at a minimum to go through the tribunal process, while having no money coming in from the school, and while having to care for her adult son, who resides with her and has the mind of a 5-year-old.[23] Certainly, this Court can see that Petrilli recognized that she had no choice and that Silberman was not going to follow the due-process procedures set out in the KAR, KRS, and the Board’s policies. Therefore, the only option Petrilli had was to resign and try to obtain employment elsewhere. She attempted to do this and part ways with Silberman; however, Silberman and Allen manufactured the “investigative memorandum” some 8 months later as an insurance policy against the lawsuit Petrilli was about to file. Having successfully tarred and feathered Petrilli, despite the subsequent finding by the Kentucky Department of Education that there was not enough evidence to support the charges, Petrilli is unemployable in her chosen profession.

In Schultz v. U.S. Navy, the court concluded that “an ostensibly voluntary resignation which was submitted as a result of agency coercion…must be treated the same as an adverse action.”[24] Furthermore, a

resignation is not voluntary where an agency imposes the terms of an employee’s resignation, the employee’s circumstances permit no alternative but to accept, and those circumstances were the result of improper acts of the agency.[25]

The fact that Petrilli’s resignation was not voluntary is demonstrated by the correspondence between Walther and Allen.[26] It was Allen who added on to the correspondence that Petrilli would not reapply in the future for a position with Fayette County Public Schools.[27] It is clear that, if Petrilli had truly voluntarily resigned, she would have simply walked away. It is unconscionable that she had to try and negotiate with Silberman that she be able to leave her employment without mudslinging.

Silberman’s article in the Herald-Leader, stating that Petrilli was not going back to BTWA; his offer of the Northern principalship, followed by a vindictive decision to threaten Petrilli with suspension; and Silberman’s refusal to comply with the evaluation instrument, due process, and evaluation requirements mandated by the KAR and KRS are all indicative of a constructive discharge. “Constructive discharge presents a question of fact that, in jury trials, should be decided by the jury and not the trial court.”[28] The court’s threshold instruction was thus erroneous.

KSN&C will report from the hearing on Tuesday.

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[1] Hamilton v. CSX Trans., 208 S.W.3d 272 (Ky.App. 2006).

[2] Record at 2162.

[3] Record at 2163-2167.

[4] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[5] Record 2163.

[6] Record 2165.

[7] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[8] Record at 2053-2070.

[9] See, e.g., Irving v. Dubuque Packing Co., 689 F.2d 170, 173 (10^th Cir. 1982).

[10] Fuelling v. New Vision, 2008 U.S.App. LEXIS 13915 (6^th Cir, 2008) at 14; see also Logan v. Denny’s, 259 F.3d 558 (6^th Cir. 2001) Further, according to Harding v. Gray, 9 F.3d 150, 152 (D.C., 1993), the burden for proving these prima facie elements is “not onerous.”

[11] Brooks v. Lexington-Fayette Urban Co. Housing Authority, 132 S.W.3d 790, 803 (Ky. 2004).

[12] Record 2167.

[13] Hearing on the jury instructions to be given, 7/28/09, 08:10:47—08:11:51 a.m., tape 22/3/09/CD/108-8.

[14] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[15]Parker v. Board of Regents of Tulsa Junior College, 981 F.2d 1159, 1162 (10^th Cir. 1992).

[16]Scharf v. Dept. of Air Force, 710 F.2d 1572, 1574 (U.S. Ct. App. Fed. Cir. 1983) (citing Pearlman v. United States, 490 F.2d 928, 993 (Ct. Cl. 1974)).

[17] Scharf at 1574. (Emphasis added.)

[18] Commonwealth of Ky v. Stosberg, 948 S.W.2d 425 (Ky. App. 1997).

[19] Id. at 427.

[20] Northeast Health Management, Inc. v. Cotton and Howell, 56 S.W.3d 440 (Ky. App. 2001).

[21] Id. at 446.

[22] Walther Test. 07/20/09, 02:00:57, tape 22/3/09/CD/108-3.

[23] Walther Test. 07/20/09, 02:24:04, tape 22/3/09/CD/108-3.

[24] Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987).

[25] Id. See also Edgerton v. Merit Systems Protection Board, 768 F.2d 1314, 1317 (Fed. Cir. 1985.).

[26] Petrilli Test. 07/16/09, 03:27:50 p.m., tape 22/3/09/CD/108-2; see also PX 13, App. 28.

[27] Id.

[28] Brooks v. Lexington-Fayette Urban Co. Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

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[1] Hamilton v. CSX Trans., 208 S.W.3d 272 (Ky.App. 2006).

[2] Record at 2162.

[3] Record at 2163-2167.

[4] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[5] Record 2163.

[6] Record 2165.

[7] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[8] Record at 2053-2070.

[9] See, e.g., Irving v. Dubuque Packing Co., 689 F.2d 170, 173 (10^th Cir. 1982).

[10] Fuelling v. New Vision, 2008 U.S.App. LEXIS 13915 (6^th Cir, 2008) at 14; see also Logan v. Denny’s, 259 F.3d 558 (6^th Cir. 2001) Further, according to Harding v. Gray, 9 F.3d 150, 152 (D.C., 1993), the burden for proving these prima facie elements is “not onerous.”

[11] Brooks v. Lexington-Fayette Urban Co. Housing Authority, 132 S.W.3d 790, 803 (Ky. 2004).

[12] Record 2167.

[13] Hearing on the jury instructions to be given, 7/28/09, 08:10:47—08:11:51 a.m., tape 22/3/09/CD/108-8.

[14] Brooks v. Lexington-Fayette Urban County Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).

[15]Parker v. Board of Regents of Tulsa Junior College, 981 F.2d 1159, 1162 (10^th Cir. 1992).

[16]Scharf v. Dept. of Air Force, 710 F.2d 1572, 1574 (U.S. Ct. App. Fed. Cir. 1983) (citing Pearlman v. United States, 490 F.2d 928, 993 (Ct. Cl. 1974)).

[17] Scharf at 1574. (Emphasis added.)

[18] Commonwealth of Ky v. Stosberg, 948 S.W.2d 425 (Ky. App. 1997).

[19] Id. at 427.

[20] Northeast Health Management, Inc. v. Cotton and Howell, 56 S.W.3d 440 (Ky. App. 2001).

[21] Id. at 446.

[22] Walther Test. 07/20/09, 02:00:57, tape 22/3/09/CD/108-3.

[23] Walther Test. 07/20/09, 02:24:04, tape 22/3/09/CD/108-3.

[24] Schultz v. U.S. Navy, 810 F.2d 1133, 1136 (Fed. Cir. 1987).

[25] Id. See also Edgerton v. Merit Systems Protection Board, 768 F.2d 1314, 1317 (Fed. Cir. 1985.).

[26] Petrilli Test. 07/16/09, 03:27:50 p.m., tape 22/3/09/CD/108-2; see also PX 13, App. 28.

[27] Id.

[28] Brooks v. Lexington-Fayette Urban Co. Hous. Auth., 132 S.W.3d 790, 807 (Ky. 2004).