Petrilli Appeal Denied

Court of Appeals Affirms Judge Ishmael in Petrilli Case

Procedural Error Helps Sink Petrilli

The “failure to specifically object

to the final written instructions means

the objection to the language. . .

has not been properly preserved for our review.”

--Kentucky Court of Appeals

Despite negative comments made during oral arguments by two of the three appeals court judges regarding jury instructions in the Petrilli case, the panel upheld those instructions in favor of the lower court and the Fayette County Schools today.

Former Booker T Washington Academy Principal Peggy Petrilli had appealed an August 14, 2009, judgment of the Fayette Circuit Court dismissing, with prejudice, her claims against defendants, Fayette County Public Schools Superintendent Stu Silberman, and the Fayette County Board of Education.

Silberman and the Board cross appealed, asserting several errors by the trial court.

The Appeals Court ruling can be found by searching 2009-CA-001925 at the court's website.

Despite the judges' misgivings about the jury instruction, the court ultimately agreed with school district Attorney John McNeill that Petrilli did not "preserve the issue" of the threshold jury instruction for appellate review.

Failure to preserve an issue for review is a procedural matter for the courts. As I understand it, in order to “preserve” an issue for appellate review, the attorney must object to the matter during the trial, and it must be ruled on by the judge. McNeil argued successfully that Petrilli's Attorney J. Dale Golden’s objections came during a preliminary hearing, not during the trial itself.

The full court reasoned,

Petrilli argues that the trial court erred in creating a threshold jury instruction that superseded the elements for reverse discrimination, retaliation, and violation of the Kentucky Whistleblower Act.

The jury was given the following 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 27, 2007?”

The jury marked “yes” and returned to the courtroom where the trial judge discharged them from further duties. Ms. Petrilli argues that the threshold instruction was given in error because it is completely different from the elements of her claims for reverse discrimination, retaliation, and violation of the Kentucky
Whistleblower Act.

The appellees argue that Petrilli did not preserve the issue of the threshold jury instruction for appellate review. In support of this argument, the appellees argue that Petrilli cites a discussion before the close of proof for the preservation of this issue. However, the record reveals that this was a preliminary discussion over the general structure of the jury instructions. According to the appellees, the trial court made it clear that it had put together an amalgamation set of instructions which included elements of both the Plaintiff and Defendant’s tendered instructions “for a
place to start” in drafting the final instructions.

According to the appellees, the trial court did not issue its final jury instructions until later that day, and only after the close of proof. Petrilli made no objection at that time to the threshold Question No. 1, and instead only objected to Jury Instruction No. 1, and her objection only dealt with whether the instruction should include a finding that Petrilli was a member of a protected class as it pertained to the reverse discrimination claim.

The “failure to specifically object to the final written instructions means the objection to the language. . . has not been properly preserved for our review.” Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 690 (Ky.App. 2009). Kentucky Rules of Civil Procedure (CR) 51(2) and (3) provide:

(2) After considering any tendered instructions ... the court shall show the parties the written instructions it will give the jury, allowing them an opportunity to make objections out of the hearing of the jury.

(3) No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.
Because Ms. Petrilli did not object to the threshold jury instruction at the close of proof, we agree with the appellees that she did not preserve this argument for review on appeal.

Petrilli argues that simply tendering her own jury instructions preserved this issue for appeal. We disagree. In Boland, the Appellant submitted its own instructions, and in lieu of objecting to the language they later took issue with on appeal, asked the court if they could “stand on their instructions as submitted.” Id. at 690.

A panel of this Court held that the particular language the Appellant argued on appeal was improper, had not been objected to specifically, and thus the matter was
not properly preserved for appeal. In the instant case, Petrilli objected to a different jury instruction regarding her inclusion in a protected class for her reverse discrimination claim, but did not specifically object to the “voluntary” language contained threshold Question No. 1. Accordingly, Petrilli did not preserve this argument for appeal to this Court.

But that's not all. The court turned 180 degrees from their comments during oral arguments and concluded,

We agree with the appellees that the trial court’s reasoning for including the threshold jury instruction/question was basic and correct. If the jury believed from the evidence that Petrilli voluntarily resigned, then necessarily they must not have believed she was constructively discharged.

Judges Acree and Thompson agreed with the majority in the result only, and Judge Thompson wrote a separate opinion citing his disagreement with the court's analysis in the jury instruction finding. However, he writes that,

Despite my disagreement with the majority’s legal analysis, I nevertheless concur in the result because, at the close of trial, the appellees were entitled to a directed verdict. The evidence established that the parents, not the school board, were the perpetrators of the conduct complained of by Petrilli.

Perhaps Silberman's strongest argument throughout the case was his offer to return Petrilli to Northern Elementary. In a footnote the court agreed saying,

"a lateral transfer of a principal is not even considered a demotion as defined by [KRS 161.720]...Therefore, Silberman could have sent Petrilli back to Northern Elementary without her consent and without recourse. However, she declined the lateral transfer and instead resigned her position."

FCPS Appellee's Brief and Cross Appeal

Appellate review in Petrilli v Silberman, and whether former Booker T Washington Principal Peggy Petrilli is granted a new trial, hangs on the question of Judge James Ishmael’s 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?”

Juries have tremendous power over people's lives. Granting them such power directly expresses our faith in the system of justice, democratic governance, and whether the public has faith that jury verdicts can be fair, unbiased, and accurate.

In recent years, however, concerns have been raised about the quality and integrity of the outcomes reached by juries. Some believe that jurors are too frequently biased, or incompetent to render just verdicts. Jurors can misunderstand instructions from the judge on legal issues, fail to recall critical evidence, or suffer from boredom during trials - particularly in complex trials.
For these reasons, and perhaps others, the quality of jury instructions is critical to guiding the jury toward a result that is based on sound legal principles rather than biased, arbitrary or sloppy reasoning.

The central question under review in Petrilli v Silberman is whether a fair set of jury instructions existed, but there's some other stuff too. The district wants the Court of Appeals to agree that Petrilli voluntarily resigned and leave Fayette County Circuit Court Judge James Ishmael's ruling undisturbed. They request the court to confirm the trial jury or alternatively grant the district's cross appeal for a directed verdict on all issues, which would pretty much do the same thing.

KSN&C had hoped to present the district’s arguments alongside those of Appellant Peggy Petrilli, but we were unable to secure the cooperation of counsel for the school district. KSN&C thanks Sam Givens at the Kentucky Court of Appeals and Judge Ishmael for their assistance.

The following is a summary of the district’s point of view.

District arguments in Petrilli v Silberman:

· The threshold jury instruction was not preserved for review. This is a procedural argument and I won’t pretend to understand its subtleties. Apparently, in order to “preserve” an issue for appellate review, the attorney must …do something…like object. Objections are preserved for appellate review only if those objections are made and ruled on in the trial court. And McNeil argues that Dale Golden’s objections came during a preliminary hearing, as KSN&C has reported. See: Nebraska Law Review for a discussion. So, if I’ve got this argument right, McNeill says Golden objected to the jury instruction during a preliminary hearing, but not in the trial court, and therefore, it was not properly preserved. I would only note that during oral argument, the judges were aware of this argument but at least two of the judges did not appear to be buying it.

· McNeill says the threshold jury instruction was proper. Golden seeks what is called a de novo review of Judge Ishmael’s threshold jury instruction and McNeill says that’s not the correct way for the court to look at it. “The threshold jury instruction was proper because once the jury found that Petrilli voluntarily resigned, she could no longer meet the essential elements necessary to prove her claims of an adverse employment action.” McNeill pins his position on the argument that Petrilli was not under any time pressure (which might give rise to a constructive discharge) because she first brought up the idea of resignation, did so with advice from counsel, negotiated her separation, and had been given options to avoid resignation, including suspension with pay, which McNeill told the court was not an adverse employment action. Again, it is not clear that the appellate judges bought this argument.

· The district argues that Petrilli had no right to a constructive discharge jury instruction because it was not properly preserved, Petrilli’s arguments are misleading, and that during the pre-trial stage of the case, Golden had argued that they were not making a constructive discharge claim.

· McNeill argues that the court erred in not granting the district a directed verdict on the reverse discrimination claim and that Petrilli did not suffer an adverse employment action. McNeill says Petrilli confuses not wanting to resign with choosing to voluntarily resign once confronted with substantial complaints about her running of the school.

· McNeill states that Petrilli was qualified to serve as principal…

· ..but that she was replaced by a white man, Jock Gum. Gum had served as an interim principal, finishing out the year. However, the hiring of Wendy Brown, a black woman, was at the core of the case, and here McNeill argues that Silberman and the board could not be held responsible because it was the school council who hired Brown.

· The district says that the court improperly failed to grant their motion for a directed verdict on retaliation claims, whistleblower claims.

· …that the trial court was correct to excuse Brenda Allen from any claims.

· …that the court properly handled jury selection.

· …that the trial court was correct to disallow testimony from Allen.

· …that the court was correct to overrule complaints from Golden against McNeill, and a requested second deposition of Doug Adams. During oral argument, one judge made statements inferring that the misconduct claim would likely go nowhere.

· …that the court was correct to overrule Petrilli’s Motion in Limine on prior bad acts when it allowed testimony on related issues at BTWA.

· …some lawyerly something about how McNeill used depositions to impeach and rehabilitate witnesses…

· That the court erred by refusing to dismiss Silberman as officially and as an individual.

School Board to School Council Members: "Sue You"

Imagine that you are a member of your local board of education. Ponder your responsibilities. Think about how you are going to enlist all of the help you are going to need in order for your school district to be successful. You can generally count on all of the principals and most of the teachers being on board, if for no other reason than it is their job. Most will be strong supporters of improving the schools.

But what about the parents?

When schools and parents work closely together we get the best results for the kids. We see that over and over again. It is an important attribute comon to the best public schools, charter schools, and private schools.

Think about what kind of message you'd want your school board to send to the parents who serve at the school council level. Are you all partners on the same team? Or do we only want parent involvement when its convenient? And what's the board's message to the parent and teacher council members when things go wrong?

Believe it or not, this issue was touched on yesterday in the Kentucky Court of Appeals during oral arguments. It was a question of who should be held responsible if a personnel matter at the school level brought allegations of wrong doing, such as the racial discrimination claim in Petrilli v Silberman.

While representing his clients, Fayette County Schools Superintendent Stu Silberman and the Board of Education, attorney John McNeill argued yesterday that it was inappropriate to sue the superintendent or board. Instead, he suggested to the court that an aggreived person should sue ... individual school council members!?

Now, as I'm sure KSN&C readers know, school council members select their school's principal from a list of qualified candidates provided by the superintendent. In the case of teachers, council members are consulted before the principal selects. In both cases, the superintendent completes the hiring process. After that, the personnel responsibilities of school council members are a big honkin' ZERO. Nothing. School council members do not consult, advise, observe (formally), evaluate, or discipline any teacher or principal who gets out of line. They have no authority to do so whatsoever. So the suggestion that these are the folks who should be sued in such cases left me bewildered.

Wondering if I was the only person who found McNeill's argument to be stunning, I went looking for a second opinion from another attorney. I happened to find one who used to run the Kentucky Association of School Councils, Susan Weston.

Weston opines,

The school-based decision making statute, KRS 160.345(2)(f), says in so many words that school councils "shall not have the authority to recommend transfers or dismissals/" School councils have a specific role in hiring: they select principals and are consulted on other vacancies. They have no role with individual personnel once they are hired. They do not evaluate, do not set evaluation rules, do not discipline, and do not terminate. And, as the law I just quoted makes clear, they don't even get to recommend that employees be removed from their current positions. Since a council has no legal role at all in a process that leads to a principal ceasing to be principal, I am mystified about how a council could be sued over activity it could not
control.

Yeah. What she said.

Now I'm betting that neither the superintendent or board of education got together to make this suggestion their unofficial policy or their legal gameplan. Tempting as it might be, I doubt our board members would really want council members to be held responsible for things beyond their control. Still, it is troubling to think that this argument is out there, before the Kentucky Court of Appeals.

What if the court agrees with McNeill? Who would want to serve on a school council then?

Appeals Court Signals Remand of Petrilli Case

School District Attorney Argues

Plaintiffs should Sue School Councils

Rather than Superintendents

in School-based

Racial Discrimination Claims

Ruling Expected in Mid march

During Oral Argument before the Kentucky Court of Appeals today, two judges openly and repeatedly expressed doubts about Fayette County Circuit Court Judge James Ishmael’s threshold instruction to the jury in Petrilli v Silberman.

In deliberation during the trial, jurors were only allowed to consider whether they thought former Booker T Washington Principal Peggy Petrilli had resigned voluntarily. The jury made their decision while looking at a handwritten resignation letter from Petrilli that read, in its entirety, “I hereby resign my position in the Fayette County Schools” with no effective date.

None of the other issues related to civil rights, retaliation, or whistleblower claims were considered by the jury since they found her resignation to be voluntary.

That result undermined J Dale Golden’s constructive discharge claim and exonerated Fayette County Schools Superintendent Stu Silberman and the Fayette County Board of Education.

Responding to an argument from Golden, Judge Kelly Thompson said, “I don’t agree with that threshold instruction either…” Later during John McNeill’s argument, Judge Glenn Acree said, “I, too, have a problem with this instruction…I’m not sure a jury understands [everything that goes into making a resignation] voluntary.”

McNeill argued that the superintendent and board weren’t guilty of anything, that the jury instruction was proper because it contained the word “voluntary,” and that Golden’s assertion of constructive discharge was made “without evidence.”

Judge James Lambert made no specific assertions during questioning but only two judges are needed to prevail on any particular point of law.

The only clue about the court's leaning on the central issue of whether Petrilli voluntarily resigned came from Judge Acree who said at one point, “It sounds like she didn’t want to leave.”

I'm no attorney but it sounds like this case may be headed back to Fayette County. But we won’t know for sure until sometime in mid March. A ruling is expected in 30 to 45 days.

KSN&C Backstory here

Each side was given 15 minutes to argue points of law and procedures before the court. Golden, representing Appellant Peggy Petrilli, chose to argue for 10-minutes and reserve 5-minutes for rebuttal. John McNeill, representing Stu Silberman and the Board of Education used all 15-minutes for argument – thus allowing Golden to speak first and last.

Most of the court’s attention was on the threshold jury instruction, and the question of whether Kentucky’s school council laws have the effect of insulating superintendents and school boards from discrimination claims.

What did the school board do wrong? one judge asked. You tell us about the Clarks and Ms Berry but what about the board?

“If there is a racial discrimination claim, who would you sue?” Acree asked repeatedly. McNeill opined that one must sue individual school council members. Golden argued that it was appropriate to sue the superintendent who is ultimately in charge of everything.

The district filed a Cross Appeal claiming that Judge Ishmael should have issued a directed verdict on all of Petrilli’s claims because they all lacked evidence. During a pretrial hearing, Judge James Ishmael had rejected the district's request for summary judgment saying,

"Right now, I’m not comfortable that the facts are so undisputed, that I feel comfortable making a ruling as a matter of law."

Golden argued that all of Petrilli’s other claims should have survived any resignation. For example, if a woman is raped at work, she does not have to keep working there to have a case, Golden said.

From Twitter: (READ FROM THE BOTTOM UP.)

Reday000 Adjourned. Court indicates it will respond in 30 to 45 days.
Reday000 when asked...says Buddy Clark was disbarred in Chicago.
Reday000 Golden: Voluntary was not defined. Threshhold question was inappropriate.
Reday000 Golden rebuttal begins. Thompson demures on sanction question.
Reday000 McNeill denies sanctionable conduct.
Reday000 McNeill defending jury instruction because it contained the word voluntary.
Reday000 Acree: I, too, have a problem with this instruction...not sure jury understands what voluntary means...
Reday000 Acree: If there was a racial discrimination claim, who would you sue?
Reday000 District filed cross appeal saying there should have been a directed verdict on all of Petrill's claims.
Reday000 Acree: "It sounds like she didn't want to leave."
Reday000 McNeill says constructive discharge claim was without evidence.
Reday000 McNeill is up.
Reday000 Golden: "This was a hatchet job."
Reday000 Golden goes after McNeill's conduct during trial.
Reday000 Golden argues whistleblower & civil rights claims should survive any resignation.
Reday000 Brenda Allen is in attendance.
Reday000 ...what did the school board do?
Reday000 Thompson: "I don't agree with that threshhold instruction either. That's not my problem...
Reday000 Each side gets 15 minutes. Golden goes first.
Reday000 Lambert presiding. Welcomes and introduces.

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.

---

[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).

---

[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).