RENDERED: MAY 19, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 0557

- MR QUEEN DEBORAH CA ’ MEL APPELLANT

v. APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE A.C. MCKAY CHAUVIN, JUDGE

ACTION NO. 11

- CI

- 00 7599

LOUISVILLE/JEFFERSON COUNTY METROPOLITAN (METRO) GOVERNMENT APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: CETRULO, JONES, AND TAYLOR, JUDGES. CETRULO, JUDGE: Appellant Queen Deborah Ca’Mel ( “ Ca’Mel ” ) appeals a
directed verdict of the Jefferson Circuit Court dismissing her discrimination claims
based on race and sex , and a jury verdict dismissing her workplace retaliation
claim

. After review, w e affirm.- 2

- I. FACT UAL BACKGROUND
In 2009 , Ca’Mel , an African American female, was hired as a police recruit and attended the Louisville Metro Police Department ( “ LMPD ” ) 1 Academy. Despite struggling mightily throughout the Academy , she graduated in August
2010 and was sworn in as a probationary officer. The probationary period for a n LMPD officer begins with four training phases and lasts one year.

Ca’Mel completed the first two phases with Seventh Division. H er police training o fficer stated that during that time, she “ did not accept criticism well, that she became defensive when she was critiqued, and she had difficulty with officer safety, self

- awareness, and report writing[.]” Ca’Mel v. Louisville Metro/Jefferson Cnty. Metro

. Gov’t Police Dep’t , No. 2013

- CA

- 001988

- MR, 2015 WL 226088, at *2 (Ky. App. Jan. 16, 2015). A t her mid

- term evaluation , s he
failed four of the 15 core competencies and her evaluator (different from her training officer) stated that her failure was “the culmination of her issues.” Ca’Mel was assigned a new training officer, repeated the training , and passed the second
mid

- term evaluation. She completed the last two training phases and passed her
final evaluation with Sev enth Division. In July 2010, she began riding solo with
Seventh Division

.

1 For purposes of this O pinion, we will refer to the Appellee Louisville/Jefferson County Metropolitan Government as LMPD , the department of government involved.- 3

- In September 2010, Ca’Mel transferred and began riding solo with
First Division

. She struggled with interpersonal relationships within her new
division. In particular, Ca’Mel struggled to interact effectively with Officer Humphrey, a four

- year veteran of First Division at that time. She stated that he publicly criticized her, mocked her on the radio, and micro

- managed her policing.
LMPD contends he was a senior officer attempting to help and advise her

.

Within days of her arrival at her new division, she discovered a penis drawn on the rear windshield of her personal vehicle while it was parked in the division’s parking lot. She reported the drawing to her sergeant, an d he informed her that he would address the incident with the platoon to avoid similar incidents. Additionally, Ca’Mel contends that some of her colleagues refused to back her up on traffic stops and called her traffic stops “bullshit” over the radio. Ho wever, Ca’Mel did not present evidence of an y specific incident where help was
warranted , but not received. Also , someone left a n anonymous note in her office mail slot telling her she need ed to know where her beat partners were at lunch ; Ca’Mel took offen s e to the note. Officer Humphrey later admitted that he left the note, and LMPD argued that such a note was intended to be helpful and advisory because “[i]t is important for officers to know where their potential backup is in case they were to get into a situation requiring additional officers.”- 4

- Procedurally, she struggled as well. During th o se first few months with First Division, fellow officers reported that she breached procedure on at l east four occasions : ( 1 ) she did not follow protocol when she requested urgent
assistance in a non

- urgent situation , ( 2 ) she did not immediately report a cruiser accident to her supervisor, ( 3 ) she drove through a fire scene and over a hose , and ( 4 ) she instructed vehicle owners to await a wrecker in a high

- crime area

. These incidents all occurred during her probationary period. The only other incident relevant here occurred in February 2011, when Ca’Mel arrested a woman without a
valid basis for ta king her into custody.

On January 12, 2011, Ca’Mel submitted a memorandum (“January 12 Memo”) to her chain of command complaining about the penis drawing and her difficulties with Officer Humphrey. The LMPD ordered the Professional Standards Unit (“PSU”) to investigate her claims, but the exact start date and end
date of that investigation is unc lear from the record

.

Ca’Mel’s probationary period was set to end on January 29, 2011. However, prior to January 29, the LMPD filed a motion with the Louisville Metro Police Merit Board (the “ Merit Board”) requesting a three

- month extension of her probation , and the Merit Board granted the motion. One month later, on March 4, LMPD gave Ca’Mel a “probationary dismissal” letter terminating her employment- 5

-

effective immediately

. 2 Ca ’Mel appealed her termination to the Merit Board and

won. The Merit Board deemed the extension invalid because the LMPD did not provide timely written notice to her . As a result, t he P olice C hief rescinded the
termination letter on March 18

.

On March 25, 2011, Ca’Mel filed a formal complaint with the LMPD (“March 25 Complaint”). Th at March 25 Complaint referenced the same information in her January 12 Memo ( i.e. , the penis drawing and the hostilities with Officer Humphrey). PSU completed its investigat ion and concluded that Ca’Mel violated procedure for not properly reporting the cruiser accident and arresting the woman in February on improper charges. In a letter dated May 16,
2011 , the P olice C hief informed Ca’Mel that LMPD was terminating her employment due to her poor performance during the Academy , as well as

numerous protocol breaches that occurred during and after her probationary period

.

II. PROCEDURAL BACKGROUND In November 2011, Ca’Mel filed a lawsuit in Jefferson Circuit Court claiming discrimination based on race, discrimination based on sex, and retaliation pursuant to the Kentucky Civil Rights Act ( “ KCRA ” ), as codified in Kentucky

2 Under the LMPD Collective Bargaining Agreement and Metro Personnel Polices, the LMPD does not require cause to terminate a probationary employee.- 6

-

Revised Statute ( “ KRS ” ) Chap ter 344. 3 Th o se claims were delayed while the
wheels of the administrative appeals turned slowly over the next eight years.

In 2012

– after holding hearings on four separate dates

– the Merit
Board upheld Ca’Mel’s second termination. She appealed to the Jefferson C ircuit
C ourt , and, in 2013, that court affirmed the Merit Board’s decision , finding that the decision was not arbitrary nor in violation of Ca’Mel’s due process

. Ca’Mel appealed to this Court. In 2015, a panel of this Court de termined that precedent support ed the Merit Board’s decision to review Ca’Mel’s entire employment record (including her probationary period), but her Academy performance should
not have been a factor in her termination

. Ca’Mel , WL 226088, at *1, *7

. This
Court reversed and remanded 4 with instructions for the Merit Board to consider only post

- Academy conduct and stated that the Merit Board need not hold another hearing “because it ap pears the record was fully developed below.” Id. at * 7.

On remand, the Merit Board

– considering only Ca’Mel’s employment performance post

- Academy

– again voted to sustain her termination.
In 2016 , s he again appealed the Merit Board’s decision to the circuit court and th at court again affirmed. Ca’Mel appealed to this Court and, in 2018, this Court
affirmed the decision to terminate her employment

. Ca’Mel v. Louisville/Jefferson

3 She also made a claim of defamation, which was dismissed by agreed order in 2019.

4 This Court also addressed procedural and due process challenges that are not relevant here.- 7

-

Cnty. Metro

. Gov ’ t Police D e p ’ t , No. 2016

- CA

- 001842

- MR, 2018 WL 3005925, at *1, *3 (Ky. App. Jun

. 15, 2018).

Then

– with the Merit Board’s decision finalized and the COVID pandemic delays concluded

– the remainder of Ca’Mel’s claims (discrimination and retaliation) proceeded in the Jefferson Circuit Court. The trial court held a
three

- day j ury tria l i n March 2022. At the close of Ca’Mel’s proof, the trial court granted LMPD’s motion for a directed verdict on the race and sex discrimination
claims. The court submitted her retaliati on claim to the jury; and, with a vote of
11

- 1, the jury voted in favor of the LMPD . Thereafter, the trial court entered a judgment on the jury verdict and its directed verdict , dismissing her claims in full (“March 10 Order”) . Ca’Mel moved for a new trial, but the trial court denied th at motion in its April 27 , 2022 Order (“April 27 Order”)

. Ca’Mel again appealed.
III. ANALYSIS On appeal, Ca’Mel argues the trial court inappropriately limited her

case - in

- chief through admo ni tions and by refusing to admit relevant evidence

. We do not agree. In fact, the trial court put on a masterclass on civil procedure and patience throughout th e three

- day trial.

There are two orders on appeal. The March 10 Order granted LMPD’s motion for a directed verdict regarding Ca’Mel’s gender and race- 8

-

discrimination claims and dismissed her retaliation claim, consistent with the jury verdict. The April 27 Order denied Ca’Mel’s motion for a new trial

.

A. Discrimination [W] hen presented with a motion for directed verdict , a trial court must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion. As a reviewing court, we must ascribe to the evidence all reasonable inferences and d eductions which support the claim of the prevailing party. It is the province of the jury, of course, to weigh the evidence, but a directed verdict is appropriate where there is no evidence of probative value to support an opposite result because the jury may not be permitted to reach a verdict upon speculation or conjecture. The judgment of the trial court in such matters will only be substituted when clearly erroneous. In the end, a trial court should only grant a directed verdict when there is a compl ete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ.
Toler v. Süd

- Chemie, Inc

. , 458 S.W.3d 276, 285 (Ky. 2014) ( internal quotation
marks and citations omitted).

Here

– after Ca’ M el completed her proof

– the trial court granted LMPD’s motion for a directed verdict dismissing the discrimination claims. The
trial court found that Ca’ M el failed to show how her termination was related to her race or gender. On appeal Ca’Mel repeats h er claims that discrimination is apparent, but we, like the trial court, f i nd no discrimination as a matter of law.- 9

- It is unlawful for an employer to “fail or refuse to hire .

. . any individual, or otherwise to discriminate against an individual with resp ect to compensation, terms, conditions , or privileges of employment, because of the individual’s race .

. . [or] sex

. . . . ” KRS 344.040(1) (a)

. Plaintiffs can establish discrimination by either direct or circumstantial evidence. Norton Healthcare, Inc. v. Disselkamp , 600 S.W.3d 696, 719 (Ky. 2020) (citing Williams v. Wal

- Mart Stores, Inc. , 184 S.W.3d 492, 495 (Ky. 2005)). Ca’Mel argues she estab lished discrimination through both direct and circumstantial evidence

.

Ca’Mel argues that d irect evidence exists as a result of Officer Humphrey’s testimony. She argues that Officer Humphrey ( also an African
American ) used “the words sex, race, gender, black, and white in explaining his actions toward [Ca’Mel]” a nd that the use of the words alone were direct evidence
of discrimination. However, h e never stated that he acted a certain way toward her
because she was an African American woman. Ca’Mel does not point to a ny specific statement by Officer Humphrey (nor anyone else) that conveys bias , harassment, or discrimination based on race or gender. Additionally, Ca’Mel makes a confusing argument about possible beliefs in stereotypes existing within the LMPD, 5 but again, she gave no indication how possible stereotypical beliefs

5 Ca’ M el argues that Officer Humphrey “adopted his Caucasian colleagues ’ racial and sexual stereotyping in acting toward and interacting with [Ca’ M el], and that he influenced LMPD’s decision to fire [Ca’ M el]

. ”- 10

-

a ffected her , nor the connection of those beliefs to he r termination. Direct

“ evidence, standing alone, must demonstrate discriminatory motivation. ”
C haralambakis v. Asbury Univ

. , 488 S.W.3d 568, 577 (Ky. 2016) (cit ation
omitted ). “[D]irect evidence of discrimination does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of th e protected group.” Id. Here, Ca’ M el present ed no direct evidence.

Lacking direct evidence, we shift our analysis to circumstantial evidence. Kentucky frequently applies the burden

- shifting test established in McDonnell Douglas Corp oration v. Green , 411 U.S. 792 , 93 S. Ct. 1817, 36 L. Ed.
2d 68 (1973) , in cases without direct evidence in order “ to allow a victim of discrimination to establish a case through inferential and circumstantial ” evidence.
Norton Healthcare , 600 S.W.3d at 719 (quoting Williams , 184 S.W.3d at 495 )

.

First, t o prevail, Ca’ M el needed to prove a prima face case of
discrimination

. A prima facie discrimination action includes proof that a plaintiff: (1) was a member of a protected group; (2) was subjected to an adverse employment action; (3) was qualified for the position; and (4) similarly situated
individuals were treated more favorably

. The Bd. of Regents of N. Ky. Univ. v. Weickgenannt , 485 S.W.3d 299, 306 (Ky. 2016) (citation omitted); s ee also
Williams , 184 S.W.3d at 496 (citation omitted ). Th e crux here is proving that- 11

-

similarly situated people were treated more favorably tha n she was. Weickgenannt , 485 S.W.3d at 306. Ca’Mel argues that the trial court erroneously limited her argument on th at issue, but we do not agree.

Here, the trial court did not permit her to relitigate previous issues, 6
but did allow the admission of evidence as it related to similarly situated people. To qualify as a similarly situated person, the person

must have reported to the same supervisor a s the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff’s, without such differentiating or mitigating circumstances that would distinguish thei r conduct or the appropriate discipline for it. Mazzella v. RCA Global Comm c’ n s , Inc. , 642 F. Supp. 1531 , 1547 (S.D.N.Y. 1986)

. 7

6 T he trial court did not allow Ca’ M el to admit into evidence any documents that specifically and only challenged the legitimacy of LMPD’s reasons for firing Ca’Mel . S uch documentation included Ca’ M el’s high productivity, letters of recommendation, and other material challenging the reports of her procedural errors. The trial court was correct to exclude these documents because the legitimacy of LMPD’s reasons for firing her had already been adjudicated. T he doctrine of “issue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action.” Yeoman v. Commonwealth, Health Policy Bd. , 983 S.W.2d 459, 465 (Ky. 1998). Additionally, Ca’Mel conflates aspects of her discrimination and retaliation arguments, but the same rules of evidence and issue preclusion apply to both claims. None of the avowal exhibits directly refuted the LMPD’s reasons for the firing.

7 LMPD cites to this federal case. Because KCRA is similar to the Federal Civil Rights Act of 1964 , generally, interpretation of the Kentucky statute is consistent with federal case law. Stewart v. Univ. of Louisville , 65 S.W.3d 536, 539 (Ky. App. 2001) (citation omitted).- 12

- H owever, Ca’Mel presented no evidence that she was treated differently than other similarly situated people. She d id not present any evidence
that other officers (in her platoon or otherwise) made the same or similar errors or omissions , but did not receive adverse employment action, or received lesser adverse employment action.

Second, even if she had established a pr ima facie case, the McDonnell Douglas test would have then shifted the burden to LMPD to prove it had non

di s cri m i na tory reasons to fire her

. A gain , LMPD previously established this fact long before the trial currently on appeal ; a 2018 panel of this Court agreed with the
circuit court tha t the Merit Board relied on legitimate, substantial evidence when it affirmed Ca’Mel’s termination. Ca ’ Mel , 2018 WL 3005925, at *3

. Third, the McDonnell Douglas test would have next shifted the
burden back to Ca’ M el to show that LMPD’s reasons for her termination were a pretext for discrimination

. Commonwealth v. Solly , 253 S.W.3d 537, 541 (Ky. 2008) (citing McDonnell Douglas , 411 U.S. at 800, 93 S. Ct. at 1824

- 26). Once again, Ca’ M el did not meet her burden. On appeal she a cknowledges that she needed to prove “that her race or sex were a ‘substantial’ or ‘motivating’ factor in [LMPD’s] decision to fire her from her job.” However, she did not. The only

t angentially sexual reference was the single instance of a penis drawn on her
vehicle window , but she in no way connected that singular incident to her overall- 13

-

treatment or termination

. Ca’ M el argues that she faced hostility and enhanced oversight, especia lly from Officer Humphrey, but does not give any insight into how any hostility or oversight was linked to her race or gender

. Ca’ M el testified that she believed that her fellow officers failed to provide her with backup, but she never reported a single instance of such a failure, nor did she present any evidence that any alleged failure to provide backup was connected to her race or gender.

In discrimination cases, “ the ultimate question is ‘ of discrimination
vel non. ’ ” Norton Healthcare , 600 S.W.3d at 717 ( quoting U nited States Postal
Service Bd. of Governors v. Aikens , 460 U.S. 711, 71 3 , 103 S. Ct. 14 78, 1481, 75
L. Ed. 403 (1983)). Although a “ pretentious surplusage ,” here “ discrimination vel

non ” reiterates that t he overarching issue before us is whether discrimination
occurred or not. Id. at 717 n.55. We think not. Ca’ M el did not present any
evidence

– circumstantial or direct

– that LMPD discriminated against her due to her race or gender. T he directed verdict was not clearly erroneous.

B. Retaliation During the three

- day trial, Ca’ M el presented a claim for retaliation
under KRS 344.280. She argued that she was fired for making her March 25 Complaint that formally report ed the penis drawn on her car and her hostile interactions with Officer Humphrey. After deliberations, t he jury returned a verdict (11

- 1) in favor of LMPD. The trial court, in its March 10 Order, entered a- 14

-

judgment based upon the jury verdict. Subsequently, Ca’Mel moved for a new
trial but was denied. On appeal, she argues that ( 1 ) the trial court committed reversible error by issuing frequent admonitions that inappropriately limited her theory of the case , and ( 2 ) these errors warranted a new trial

.

First , we review a trial court’s evidentiary rulings under the abuse of
discretion standard

. Goodyear Tire and Rubber Co. v. Thompson , 11 S.W.3d 575, 577 (Ky. 2000) (citation s omitted). The trial court has broad discretion in issuing
admonitions as curative measures. See Gould v. Charlton Co., Inc. , 929 S.W.2d 734, 739

- 40 (Ky. 1996) ; see also Johnson v. Commonwealth , 105 S.W.3d 430, 441 (Ky. 2003). Here, we find no abuse of discretion because t he trial court’s frequent
admonitions were due to failure by counsel for Ca’Mel to follow the trial court’s
instruction s
. For example, i n one instance, the trial court interrupted Ca’Mel’s closing argument , and

– after a bench confe rence

– the trial court issued this
admonition to the jury:

To the extent that you remember the proof differently than [Ca’Mel’s counsel] does, you should rely on your recollection of the proof as to whether or not there was an investigation into the alleg ations against Officer Humphrey and whether or not there was a finding. There is proof in the record on which you may rely, and to the extent that’s different than what [Ca’Mel’s counsel] remembers, you should rely on what the proof was and your recollect ion of that proof.- 15

-

This admonition occurred after her counsel made two misstatements during his closing statements : one mistake of fact, one of law.

As to the mistake in fact, counsel for Ca’Mel implied that the LMPD did not investigate Ca’Mel’s concerns . “If [LMPD] would have addressed [Ca’Mel’s] complaints there would have been a much greater likelihood that she could have saved her job.” However, the Police Chief testified that there w as a PSU investigation in to Ca’ M el’s complaints , and the investigation ’s conclusions
were factored into the Police C hief’s reasoning to terminate her employment . The trial court’s admonition attempted to clarify counsel’s mischaracterization of the
testim ony , and to encourage the jury to rely on their own memor y .

As to the mistake of law, counsel for Ca’Mel misuse d the legal term “but for.” Counsel seemed to be making a n argument that “ but for ” LMPD’s failure to investigate Ca’Mel ’ s concerns, she would have been able to keep her job. During the bench conference, t he trial court pointed out that this theory was not legally accurate for the retaliation claim before the jury. The retaliation claim wa s based on the allegation that Ca’Mel would not have been fired “ but for” the complaint. The trial court clarified the misstatement of law to counsel but limited its admonition to the jury to only correct counsel’s misstatement of fact. Th is
admonition f

ell within the trial court’s broad discretion.- 16

- Finally, as to the new trial motion, Ken tucky Rule of Civil Procedure ( “ CR ” ) 60.20 allows for a new trial under certain circumstances, 8 none of which are present here. We “ presume the trial court’s denial of a motion for a new trial to be correct and will reverse only upon a finding of clear error. ” Jefferson v. Eggemeyer , 516 S.W.3d 325, 337 (Ky. 2017) (citing Bayless v. Boyer , 180 S.W.3d 439, 444 (Ky. 2005)). Moreover, “ [t] here must be very stron g reasons for granting a new trial, and it must appear with reasonable certainty that injustice or wrong would result unless the relief be granted and another opportunity allowed to relitigate the same issues.” Gray v. Sawyer , 247 S.W.2d 496, 498 (Ky. 195 2) (citation s omitted) . We find no such injustic e nor any error by the trial court in denying the motion for a new trial. In fact, f rom our review of the record, we find
LMPD’s appellate argument to be a sufficient and accurate summary of this issue.

Most important to the retaliation case is when the event occurred for which Ca’ M el alleged she was retaliated against. Ca’Mel specifically identifies and limited her retaliation claim to those events which occurred after March 25, 2011, when she sent writ ten notice of sexual and racial discrimination to LMPD under the advice of counsel. The date is key because the decision to terminate Ca’ M el had already occurred on March 4, 2011. The termination was only rescinded because of a

8 “On motion a court may . . . relieve a party . . . from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence . . . (c) perjury or falsified evidence; ( d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer eq uitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief.” CR 60.02.- 17

- technical error in providi ng notice in the proper form to Ca’Mel of the extension of her probationary period.

. . . The only adverse employment action taken against Ca’Mel after the triggering event was her final termination. The reasons for her termination existed prior to her March 25, 2011 complaint and were well known to [her P olice C hief]. LMPD had already actual ly attempted to terminate her. As such, a reasonable jury certainly can conclude that her termination was not in retaliation for her March 25, 2011 complaint as they had already made it clear by no later than March 4, 2011 they intended to fire her.
Sim ply, it was reasonable for the jury to conclude that Ca’Mel’s firing was not in retaliation for her March 25 Complaint, considering she filed the
C omplaint after LMPD decided to end her employment on March 4. T here is more than enough evidence in the reco rd to support the supposition that Ca’Mel’s employment was terminated for caus e, not retaliation

. We find no error in the trial court’s denial of a new trial.
IV. CONCLUSION

For all of the foregoing reasons, the judgment of the Jefferson Circuit
Court is AFFIRMED

.

ALL CONCUR

.- 18

-

BRIEF S FOR APPELLANT: Philip C. Kimball Louisville, Kentucky BRIEF FOR APPELLEE:
Micha el J. O ’ Connell Roy C. Denny Louisville, Kentucky