RENDERED: DECEMBER 11, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1800-MR

LARRY WILSON APPELLANT 

v. 

APPEAL FROM SCOTT CIRCUIT COURT

HONORABLE JEREMY MICHAEL MATTOX, JUDGE

ACTION NO. 18-CI-00060 

MICHAEL BOSSE; CITY OF 

GEORGETOWN, KENTUCKY; AND 

MEGAN MILLER APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, KRAMER, AND MAZE, JUDGES.

KRAMER, JUDGE: Larry Wilson appeals from an order and judgment of the 

Scott Circuit Court summarily dismissing his claims of age discrimination, 

retaliation, and hostile work environment against appellees Michael Bosse, Chief 

of the Georgetown City Police Department (“GCPD”); City of Georgetown, 
-2-

Kentucky; and Megan Miller, Director of Human Resources for the City of 

Georgetown, Kentucky. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Wilson was hired as a police officer by GCPD on or about September 

1, 2010. He was forty-two (42) years old at the time. In 2012, he became a

detective and in 2014, was promoted to the position of sergeant. He remained a 

sergeant until his resignation in December 2017. 

The record before us shows that in approximately 2016, Wilson began 

secretly making audio recordings of various interactions with other employees and 

his superiors. This was an attempt by Wilson to capture what he alleges was 

derogatory name-calling regarding his age “[o]n a nearly daily basis”1from his 

colleagues and superiors at GCPD. On or about April 1, 2016, Wilson sent an 

email to then-Captain Robert Swanigan stating that he was preparing to file a 

complaint with the federal Equal Employment Opportunity Commission (“EEOC”) 

“on the never ending harassment and discrimination.” 

Shortly after notifying Swanigan of his intention to file the EEOC 

complaint, Wilson received a letter of counseling. The letter concerned a closeddoor meeting in February 2016, when Wilson stated in front of other employees 

 

1

See Appellant’s brief, page 2.
-3-

and his lieutenant that he believed another employee received a “chicken shit”

write-up as a disciplinary measure. He filed his EEOC complaint in July 2016.

Wilson faced disciplinary action in November 2016, when he was 

suspended for two days without pay for failure to follow specific instructions from 

Miller about treatment for an elbow injury that occurred on the job. On November 

30, 2016, Wilson’s EEOC complaint was dismissed, and he received notice of a 

right to sue in federal court. He opted not to bring action in federal court. Wilson 

received another letter of counseling on May 31, 2017, for leaving the scene of 

what was eventually charged as an attempted murder and for failure to call 

GCPD’s Criminal Investigation Section (“CIS”) to the scene. 

In October 2017, Wilson filed a formal grievance with Miller. Bosse 

responded to the grievance consistent with GCPD policy and procedure. Having 

received an unsatisfactory result, Wilson appealed the grievance. Miller testified 

that Wilson’s communication and responses given during the appeal made her 

conclude that she believed Wilson’s employment should be terminated. On 

November 20, 2017, Wilson was presented with multiple disciplinary charges of 

unsatisfactory service and insubordination and also received a notice of hearing. 

Wilson retained counsel who negotiated the terms of Wilson’s resignation in lieu 

of termination. Thus, a hearing was not held. Wilson resigned from GCPD on 

December 8, 2017. He filed a complaint in the Scott Circuit Court on February 12, 
-4-

2018, alleging a hostile work environment, age discrimination, and retaliation. 

Discovery ensued, and the appellees herein motioned the circuit court for summary 

judgment, which was granted. This appeal followed. Further facts will be 

developed as necessary.

STANDARD OF REVIEW

When a trial court grants a motion for summary judgment, the 

standard of review for the appellate court is de novo because only legal issues are 

involved. Hallahan v. The Courier Journal, 138 S.W.3d 699, 705 (Ky. App. 

2004). 

Summary judgment is appropriate where “the pleadings, depositions, 

answers to interrogatories, stipulations, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of law.” CR2 56.03. 

The movants bear the initial burden of demonstrating that there is no genuine issue 

of material fact in dispute. The party opposing the motion then has the burden to 

present, “at least some affirmative evidence showing that there is a genuine issue 

of material fact for trial.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 

S.W.2d 476, 482 (Ky. 1991). A party responding to a properly supported summary 

judgment motion cannot merely rest on the allegations in his pleadings. 

 

2 Kentucky Rule of Civil Procedure.
-5-

Continental Casualty Co. v. Belknap Hardware & Manufacturing Co., 281 S.W.2d 

914 (Ky. 1955). “[S]peculation and supposition are insufficient to justify a 

submission of a case to the jury, and . . . the question should be taken from the jury 

when the evidence is so unsatisfactory as to require a resort to surmise and 

speculation.” O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (quoting

Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). 

On appeal, we must consider the evidence of record in the light most 

favorable to the non-movant (i.e., Wilson) and must further consider whether the 

circuit court correctly determined that there were no genuine issues of material fact 

and that the moving parties were entitled to judgment as a matter of law. Scifres v. 

Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). 

ANALYSIS

I. Age Discrimination Claim

Pursuant to KRS3 344.040(1)(a), which is part of Kentucky’s Civil 

Rights Act (“KCRA”), and consistent with Title VII of the 1964 Federal Civil 

Rights Act, 42 U.S.C. § 2000e-2(a)(1), it is unlawful for an employer to “fail or 

refuse to hire . . . any individual, or otherwise to discriminate against an individual 

with respect to compensation, terms, conditions, or privileges of employment, 

because of the individual’s race, color, religion, national origin, sex, [or] age forty 

 

3 Kentucky Revised Statute.
-6-

(40) and over[.]” The Kentucky Supreme Court has “consistently interpreted the 

civil rights provisions of KRS Chapter 344 consistent with the applicable federal 

anti-discrimination laws.” See Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 

495 (Ky. 2005) (citations omitted).

In establishing a discrimination case, a plaintiff must satisfy the 

burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 

1817, 36 L. Ed. 2d 668 (1973). This burden-shifting approach allows a victim of 

discrimination to establish a case through inferential and circumstantial proof in 

the absence of any direct evidence of discriminatory animus. Williams, 184 

S.W.3d at 495. Under the McDonnell Douglas analysis, Wilson can establish a 

prima facie case of discrimination by showing: (1) he was a member of a 

protected class; (2) he was discharged or suffered an adverse employment action;

4

(3) he was qualified for the position; and (4) he was replaced by a person outside 

 

4

“An adverse employment action has been defined as ‘a materially adverse change in the terms 

and conditions of [a plaintiff’s] employment.’ White v. Burlington N. & Santa Fe Ry. Co., 364 

F.3d 789, 795 (6th Cir. 2004) (en banc) (citation omitted). A ‘bruised ego’ or a ‘mere 

inconvenience or an alteration of job responsibilities’ is not sufficient to constitute an adverse 

employment action. Id. at 797. Adverse employment actions are typically marked by a 

‘significant change in employment status,’ including ‘hiring, firing, failing to promote, 

reassignment with significantly different responsibilities, or a decision causing a significant 

change in benefits.’ Id. at 798 (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S.

Ct. 2257, 141 L. Ed. 2d 633 (1998)).” Spees v. James Marine, Inc., 617 F.3d 380, 391 (6th Cir. 

2010).
-7-

of the protected class (here, this would be a person of substantially younger age).

5

 

Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). Only if a plaintiff 

establishes all four elements of a prima facie case does the burden shift to the

employer. The employer must then rebut the presumption of discrimination by 

proffering a legitimate, nondiscriminatory reason for its decision. Thereafter, the 

burden shifts back to the plaintiff, who then bears the burden of showing, by a 

preponderance of evidence, that the employer’s proffered reason is pretextual and 

that he is the victim of intentional discrimination. Walker v. Commonwealth, 503 

S.W.3d 165, 174 (Ky. App. 2016).

Wilson points to three instances in his argument that GCPD 

discriminated against him based on age.6 First, he argues he was removed from the 

Special Response Team (“SRT”) in September 2014. We agree with the circuit 

court that Wilson failed to establish a prima facie case of discrimination related to 

this claim. Wilson was over age 40 when he left the SRT; however, he left 

voluntarily because he claimed he could no longer afford the necessary tactical 

equipment. During his absence from SRT, GCPD implemented a change in policy 

wherein GCPD began to provide tactical gear to SRT members. After being off 

 

5 Williams, 184 S.W.3d at 496. 

6

See pages 3-4 of Wilson’s brief. In the underlying action, Wilson also argued that he was 

discriminated against when he was denied the opportunity for certain trainings. He does not 

repeat that argument to this Court. 
-8-

SRT for nine months to a year, Wilson reapplied. He was told he would need to 

undergo retraining. Wilson argues that younger employees were treated differently 

and points to circumstances of another GCPD officer to show that, but for his age, 

he would have been permitted to rejoin SRT without additional training. Wilson’s 

argument fails. GCPD Officer Valdez also left SRT, but he was permitted to 

return just thirty-six hours after his departure. The fact that Valdez is substantially 

younger than Wilson is irrelevant in light of the fact he was off SRT for just a few 

days while Wilson was away for almost one year. Regardless, Wilson left SRT 

voluntarily. He therefore fails to establish a prima facie case, and our inquiry stops 

there. 

 Wilson’s second argument is that GCPD twice failed to “promote”

him to CIS sergeant as a result of age discrimination. We again agree with the 

circuit court that Wilson failed to establish a prima facie case. This is because the 

record before us shows that it would not have been a promotion for Wilson, but 

rather a lateral change within the department. The job title of “sergeant” would 

have remained the same. Wilson’s subjective belief that the position was a 

promotion has no basis in fact or law. Indicators of a promotion are “increased 

salary, significantly changed responsibilities, a more distinguished title, or a gain 

in benefits.” Mitchell v. Vanderbilt University, 389 F.3d 177, 183 (6th Cir. 2004). 

Wilson’s “subjective impression concerning the desirability of one position over 
-9-

another generally does not control with respect to the existence of an adverse 

employment action.” Id. As the circuit court pointed out, Wilson still had an 

opportunity for overtime, and there was no change in salary or title. While Wilson 

claimed the position of CIS sergeant was a more prestigious position, he failed to 

identify why, other than his subjective belief. Moreover, Wilson did not suffer a 

loss of prestige or a material change in duties within GCPD by failing to receive a 

lateral transfer. See Brooks v. Lexington-Fayette Urban County Housing

Authority, 132 S.W.3d 790, 803 (Ky. 2004) (emphasis added) (“A material 

modification in duties and loss of prestige may rise to the level of adverse 

action.”). Such was not the case when Wilson did not receive the lateral transfer.

Finally, Wilson argues that he was wrongfully terminated in the form 

of constructive discharge. Wilson argues that he was left with no choice but to 

resign because it was a “foregone conclusion” he would have been terminated 

following the hearing scheduled before Georgetown Mayor Tom Prather. We 

disagree. 

“The commonly accepted standard for constructive discharge is 

whether, based upon objective criteria, the conditions created by the employer’s 

action are so intolerable that a reasonable person would feel compelled to resign.” 

Northeast Health Management, Inc. v. Cotton, 56 S.W.3d 440, 445 (Ky. App. 

2001) (internal quotation marks and citation omitted). Wilson’s attorney at the 
-10-

time negotiated the terms of Wilson’s resignation. Emails between Wilson’s 

counsel and Andrew Hartley, attorney for the City of Georgetown, demonstrate 

Wilson’s full participation in negotiating the terms of his resignation. Had those 

terms not been acceptable to either party, Wilson was ready to move forward with 

the hearing; he had noted his intent to call ten to fifteen witnesses to refute the 

charges against him. In its order granting summary judgment, the circuit court also 

noted an audio recording of the resignation meeting in which Wilson stated that he 

was happy working for Bosse “90% of the time.” We agree that this further 

supports appellees’ claim that Wilson’s resignation was voluntary.

Wilson failed to establish a prima facie case for any of his allegations 

related to age discrimination. There were no genuine issues of material fact, and 

the circuit court ruled accordingly. We discern no error.

II. Retaliation Claim

 Wilson claims he was subject to five types of adverse employment 

actions in retaliation for filing the EEOC complaint: (1) written reprimands; (2) 

having his unmarked car taken away; (3) suspension for two days without pay; (4) 

having his authority to make independent criminal charges taken away; and (5)

termination/constructive discharge. 

 The McDonnell Douglas scheme is applicable to retaliation claims. A 

prima facie case of retaliation requires a plaintiff to demonstrate: (1) that the 
-11-

plaintiff engaged in protected activity; (2) that the exercise of his civil rights was 

known by the defendant; (3) that, thereafter, the defendant took an employment 

action adverse to the plaintiff; and (4) that there was a causal connection between 

the protected activity and the adverse employment action. Brooks, 132 S.W.3d at 

803. The burden then shifts to the employer to articulate a legitimate, 

nondiscriminatory reason for the decision. The employee must then show that “but 

for” the protected activity, the adverse employment action would not have 

occurred. Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 701 (Ky. 

App. 1991); Asbury Univ. v. Powell, 486 S.W.3d 246, 254 (Ky. 2016). 

We agree with the circuit court that Wilson satisfied the first two 

elements of his prima facie case for each alleged instance of retaliation. He 

threatened to file an EEOC complaint and eventually did so. Bosse and Miller 

knew of the complaint. However, we also agree with the circuit court that Wilson 

failed to meet the remaining requirements of his prima facie case for each instance 

of alleged retaliation, although for slightly different reasons than the circuit court.

We first turn to Wilson’s assertion that he received written 

reprimands. In his complaint, Wilson stated that he received a letter of counseling 

regarding his “chicken shit write-up” comment. This is supported by the record 

before us. On March 31, 2016, Captain Ronnie L. Wagoner sent a letter to Wilson 

asking him to explain the comment in writing. On April 7, 2016, Bosse sent what 
-12-

was deemed a letter of counseling to Wilson regarding the same incident. Then, on

May 30, 2017, Assistant Chief Robert Swanigan sent a letter of counselling to 

Wilson for leaving the scene of a crime that was eventually charged as an 

attempted murder without calling CIS. 

KRS 15.520(1)(c) defines disciplinary action against a police officer 

as “termination, demotion, a decrease in pay or grade, suspension without pay, and 

a written reprimand[.]” In his deposition, Bosse described discipline of police 

officers thusly:

A: Well, the Kentucky Revised Statute defines discipline 

for police officers in the Commonwealth of Kentucky. 

And the four areas of discipline are written reprimand, a 

suspension, a demotion, or termination. Those are the 

only options available to a police agency to invoke 

punishment on a police officer—discipline on a police 

officer.

. . . .

A: Okay. The KRS provides that. And when you 

invoke discipline in an officer if it’s an agency-related, 

policy-related issue that’s police-oriented, the police 

officer’s bill of rights kick in and [KRS 15.520] becomes 

applicable. There is no KRS—or there never has been—

and even in the case law that I’ve read for Kentucky, 

you’re still allowed to correct your people and you’re still 

allowed to counsel your people.

And so there is a training element each time you 

see an issue with an officer that you can sit down and talk 

to the officer about the issue. That is not discipline. You 

can even write it down so that you remember what the 

incident was and that is not discipline. Those are both 

counseling sessions that are based in training.
-13-

So there’s a difference between those two and then 

the formal process that actually invokes police discipline.

Q: And as far as what goes in the officer’s file that you

all keep at the Georgetown Police Department, of those 

things you mentioned, what goes in the officer’s file? 

Like, for example, there’s some documents, we may look 

at some of them, which say something like this will stay 

in the officer’s file for six months or whatever, how does 

that work?

A: Right. There is a personnel file that is kept in HR. 

And that is their permanent personnel file. And any time 

there is formal discipline meted out by the mayor, then 

that documentation goes into that form.

Anything short of formal discipline stays at the 

police department. It can stay in the sergeant’s file, it can 

stay in the sergeant’s desk, but we keep that—if it’s—if 

it’s written down we keep it for a certain period of time 

to say we’re going to be doing follow-up for this period 

of time on this particular issue.

 We reject Wilson’s attempt to now characterize the letters of 

counseling as either a written reprimand under KRS 15.5207 or an adverse 

employment action that would qualify as retaliation. 

A “bruised ego” or a “mere inconvenience or an 

alteration of job responsibilities” is not sufficient to 

constitute an adverse employment action. Adverse 

employment actions are typically marked by a 

“significant change in employment status,” including 

“hiring, firing, failing to promote, reassignment with 

significantly different responsibilities, or a decision 

causing a significant change in benefits.” 

 

7 Miller also testified in her deposition that Wilson was not disciplined over the issues he claims.
-14-

Spees, 617 F.3d at 391 (citations omitted). We agree with the circuit court that 

these letters did not rise above the level of mere inconvenience to Wilson. 

Accordingly, Wilson failed to establish a prima facie case on this claim.

 Wilson’s second argument is that he was retaliated against when his 

unmarked police cruiser was changed to a marked cruiser. Again, Wilson’s 

argument is based on his subjective belief that an unmarked cruiser is more 

desirable. We agree with the circuit court’s reasoning and incorporate it herein:

It is Wilson’s subjective belief that this is a demotion, but 

there is no change in pay or title, and no material changes

to his job responsibilities. Without more than a 

diminution of prestige, the employment action is not 

adverse. [GCPD] still provided a patrol vehicle to 

Wilson. The markings or lack thereof on the vehicle 

does [not] classify as adverse in an unlawful retaliation 

claim

Additionally, even though the timing of the 

reassignment could be considered suspect—a month after 

EEOC filing—there is no causal link established. Even if 

the reassignment of work vehicles could classify as 

adverse, Wilson has failed to show that the retaliatory 

conduct would [not] have occurred “but for” his 

engaging in protected activity. Bosse explained that 

Wilson was randomly selected for reassignment to a 

marked patrol car[8]to further [GCPD’s] objective of 

increasing visibility of the Department in Georgetown. 

Wilson failed to counter the alternative, non-retaliatory 

purpose for the action.

 

8 Wilson was among five officers who were randomly selected for reassignment to a marked 

patrol car.
-15-

(Citations omitted.)

 Hence, Wilson again failed to meet his burden of establishing a prima

facie case of retaliation related to reassignment of his patrol car. 

Wilson next argues that his two-day suspension was retaliatory in 

nature. Here, Wilson satisfies the first three prongs of his prima facie case. He 

filed an EEOC complaint; Miller knew of the complaint when she recommended 

suspension to Mayor Prather; and suspension without pay qualifies as a 

disciplinary measure and/or an adverse employment action. However, Wilson fails 

to establish a causal connection between his EEOC complaint and his suspension. 

The record before us shows that Wilson emailed Miller on November 17, 2016. 

His email began with “Good Morning[,] I have a quick question or two. I bashed 

my elbow at work on Tuesday night.” He then asks Miller about seeing to his 

elbow “at the clinic.” Miller responded, in part, that “[t]he Balanced Care clinic 

we spoke about during open enrollment is not for work-related injuries.” Miller 

then gave Wilson very specific and detailed instructions about what to do to 

address and treat his elbow injury. Wilson responded that he understood. 

However, Wilson sought treatment of his elbow injury at the Balanced Care Clinic, 

in direct contravention of Miller’s instructions. We agree with the circuit court 

that there is no evidence whatsoever that Wilson was suspended for any other 
-16-

reason than violation of Miller’s direct instructions. Wilson has again failed to 

establish a prima facie case of retaliation. 

 Wilson argues that his independent authority to make charges was 

removed by GCPD as retaliation for his filing of the EEOC complaint. While 

Wilson lists this allegation, his subsequent argument is scant at best, arguing only 

that the circuit court viewed the incident “in a vacuum.” We are unpersuaded that 

Wilson’s characterization of the incident qualifies as an adverse employment 

action. The record contains an email from Assistant Chief Robert Swanigan to 

Wilson dated October 19, 2017, regarding a domestic violence incident that had 

taken place on North Broadway in Georgetown. Wilson was dissatisfied with the 

handling of the incident and insisted that the case was an attempted murder rather 

than misdemeanor assault in the fourth degree. Assistant Chief Swanigan’s email 

states, in relevant part,

[i]t is clear from your emails that you need further 

assistance in handling these type situations. There are no 

two incidents that are exactly alike and our responses do 

not depend on a cookie cutter mold type match. Each 

incident is different and each must be evaluated on its 

own set of circumstances. In order to provide you the 

appropriate level of assistance in making these decisions 

and to help you apply agency resources without 

confusion or frustration we have spoken with Lieutenant 

Wagoner and will implement a plan to help develop your 

skills in these areas. Effective immediately, please 

consult with Lt. Wagoner on crime scenes where you are 

debating on calling out other agency resources and he 

will assist you in making these decisions. When other 
-17-

resources are needed he will provide guidance on the 

most productive means for doing so. It is our intention 

that this plan help provide you the skills for making these 

decisions and the best means for requesting the resources. 

We will periodically follow up with Lt. Wagoner.

 The email does not qualify as discipline under KRS 15.520. Not only 

is it not a written reprimand, it is even less formal than the letters of counseling 

which appear in the record on GCPD letterhead. Although Wilson’s ego was 

likely bruised, there was no adverse employment action. Even if the email could 

be construed as such, Wilson fails to establish a causal connection due, in part, to 

the passage of time between the filing of his EEOC complaint and the email from 

Assistant Chief Swanigan. 

 While there is no hard time frame, the Kentucky Supreme Court has 

held that four months between the protected activity and the adverse employment 

action was “too long to create, by itself, an inference of causality.” Brooks, 132 

S.W.3d at 804.9 More than one year had passed between Wilson’s filing of the 

EEOC complaint and the North Broadway incident. Further, the email from 

 

9

“In cases where there is no direct evidence of a causal connection, the causal connection of a 

prima facie case of retaliation must be established through circumstantial evidence. Nguyen v.

City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000). Circumstantial evidence of a causal 

connection is ‘evidence sufficient to raise the inference that [the] protected activity was the likely 

reason for the adverse action.’ Id. at 566. In most cases, this requires proof that (1) the decision 

maker responsible for making the adverse decision was aware of the protected activity at the 

time that the adverse decision was made, and (2) there is a close temporal relationship between 

the protected activity and the adverse action.” Brooks, 132 S.W.3d at 804.
-18-

Assistant Chief Swanigan shows that he was addressing only Wilson’s response at 

the North Broadway incident in October 2017. Accordingly, Wilson failed to 

establish a causal connection and failed to establish a prima facie case related to 

this claim.

 Finally, Wilson again claims that he was constructively discharged as 

retaliation. In his argument to this Court, Wilson does not distinguish which facts 

surrounding his resignation he believes were retaliatory and which were 

discriminatory based on age. As previously addressed herein, we agree with the 

circuit court that Wilson was not constructively discharged; we decline to revisit 

the issue now. 

III. Hostile Work Environment

Wilson claims that “he was on the receiving end of insults and taunts 

related to his age (i.e., ‘the old man’) on a near daily basis.”10 He claims ridicule 

regarding his age affected him to the point that he experienced stress, lost weight, 

had trouble eating and sleeping, and dreaded going to work.

Once again, Wilson must demonstrate a prima facie case for his claim 

of a hostile work environment by showing: (1) he was 40 years or older; (2) he 

was subjected to harassment, either through words or actions, based on age; (3) the 

harassment had the effect of unreasonably interfering with his work performance 

 

10 See Appellant’s brief, page 6.
-19-

and creating an objectively intimidating, hostile, or offensive work environment; 

and (4) there exists some basis for liability on the part of his employer. Crawford 

v. Medina General Hosp., 96 F.3d 830, 834-35 (6th Cir. 1996).

The Kentucky Supreme Court has ruled that “hostile environment 

discrimination exists ‘when the workplace is permeated with discriminatory 

intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the 

conditions of the victim’s employment and create an abusive working 

environment.’” Ammerman v. Board of Educ. of Nicholas County, 30 S.W.3d 793, 

798 (Ky. 2000) (citation omitted). “Whether the harassment is severe and 

pervasive is determined by a totality of the circumstances test—circumstances 

including frequency and severity of the conduct, whether the conduct is physically 

threatening or humiliating, and whether it unreasonably interferes with the 

employee’s work performance.” Gray v. Kenton County, 467 S.W.3d 801, 805 

(Ky. App. 2014) (citation omitted). The harassment must be both objectively and 

subjectively offensive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 

367, 371, 126 L. Ed. 2d 295 (1993).

 We agree with the circuit court that Wilson failed to establish his 

prima facie case, although for slightly different reasons.11 Wilson failed to 

 

11 It is well settled that an appellate court may affirm a lower court for any reason supported by 

the record. See, e.g., Kentucky Farm Bureau Mutual Insurance Co. v. Gray, 814 S.W.2d 928, 

930 (Ky. App. 1991).
-20-

establish that he was subject to harassment. He does not dispute that, in over one 

hundred hours of recorded interaction at GCPD, there are only two instances where 

a fellow employee referenced his age.12 The first occurred on or about January 15, 

2015, when Wilson was receiving praise from Lieutenant Phil Halley and called a 

“father figure” to other officers.13 The second instance occurred on or about 

February 22, 2016, during a forty-three-minute recorded conversation in which 

Wilson and other officers were talking about newer graduates. We agree with the 

circuit court’s characterization of the conversation that all officers were engaged in 

banter – joking and jesting with one another – when someone asked Wilson if he 

was in graduating class number two (which would have implied that Wilson was 

much older than his actual age at the time). Wilson was also engaged in the banter 

among officers. Wilson claims the name-calling occurred on a near daily basis, but 

the record completely lacks support for his assertion. Wilson failed to submit any 

affidavits from employees at GCPD, and Officer Ray Brun testified that he did not 

hear anyone at GCPD refer to Wilson by any derogatory nicknames.

 

12 We note that Wilson does not point to specific instances in his recordings in the record before 

us. Appellees, however, point to the two instances discussed herein. If there are other instances 

contained within the hours of recordings, Wilson does not bring them to our attention. It is not 

the responsibility of this Court to search the record to find support for Wilson’s contentions, 

assuming it exists. Smith v. Smith, 235 S.W.3d 1 (Ky. App. 2006).

13 The recording is labeled as “Halley Father Figure,” so this Court presumes that it is Lieutenant 

Halley speaking to Wilson in the recording.
-21-

 Even if we construe the comments as harassment as the circuit court

ruled, two comments spaced over a year apart do not demonstrate pervasiveness,

and the nature of the comments lacks severity. Although Wilson may have been 

subjectively offended, the comments were not such that an objectively reasonable 

person would take offense under the circumstances. Therefore, Wilson still fails to 

satisfy the third element of his prima facie case. We agree with the circuit court, 

who looked to Crawford for its reasoning to find that

[t]he third element is a two-part requirement. The first 

part is that the plaintiff must show that the harassment 

unreasonably interfered with his work performance. 

Wilson claimed that the words upset him and interfered 

with his job performance. Wilson said he experienced 

stress, trouble eating and trouble sleeping. He claimed 

later in his response that he lost over sixty pounds and 

had two blood transfusions as a result of this harassment. 

In his complaint, Wilson alleged that the blood 

transfusion and loss of thirty pounds was the result of the

a [sic] two[-]day suspension. Additionally, he claimed 

that a divorce resulted from the actions of his co-workers 

and supervisors. Even looking in a light most favorable 

to Wilson, no evidence, including work or medical 

records, has been presented to support these claims.

The second part of the third element is that it 

created an objectively intimidating, hostile, or offensive 

work environment. This Court looked at the totality of 

circumstances and considered the frequency and severity, 

whether it was physically threatening or humiliating, and 

whether it interfered with his work. Wilson claimed that 

names were used daily. He has not proven this point; he 

has hours of recordings and only a few instances of the 

name calling were caught in the recordings, which 
-22-

supports that the name calling was far less frequent than

he stated.

(Citations omitted.) 

 Agreeing with the circuit court on Wilson’s failure to meet the third 

prong of the prime facie analysis, we need not address Wilson’s argument that he 

has met the fourth prong. 

CONCLUSION

The Scott Circuit Court entered a well-reasoned and extremely 

thorough order granting appellees’ motion for summary judgment. Wilson failed 

to meet his prima facie case on each issue he raised, and we discern no genuine 

issues of material fact for any of his claims. For the foregoing reasons, the 

judgment of the Scott Circuit Court summarily dismissing Wilson’s claims is 

affirmed. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Andrew S. Epstein

Louisville, Kentucky

BRIEF FOR APPELLEES:

Charles D. Cole

Janet S. Luo

Lexington, Kentucky