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RENDERED: SEPTEMBER 27,200l TO BE PUBLISHED

1999-SC-0485-DG

SHERI BERRIER (FORMERLY SHERI WAKEFIELD)

V.

ON REVIEW FROM COURT OF APPEALS 97-CA-3030 JEFFERSON CIRCUIT COURT NO. 94-Cl-2628

LEWIS S. BIZER; AND BIZER & BIZER OPTOMETRISTS, D/B/A BIZER ENTERPRISES, LTD, A/K/A DR. BIZER'S VISIONWORLD

APPELLEES

OPINION OF THE COURT BY JUSTICE COOPER REVERSING AND REMANDING

Appellant Sheri Berrier (formerly Wakefield) brought this action against Appellees Lewis S. Bizer and Bizer & Bizer Optometrists, d/b/a Bizer Enterprises, Ltd., a/k/a Dr. Bizer's VisionWorld (hereinafter "Bizer")' claiming that she was wrongfully discharged from her employment in violation of KRS 337.990(14), see KRS 446.070, and that she was discriminated against because of her pregnancy in violation of KRS

' Bizer & Bizer Optometrists, d/b/a Bizer Enterprises, Ltd., is a limited partnership that can be sued in its common name. KRS 362.605. Dr. Jerry L. Bizer testified that the original partners were his father and his uncle, both now deceased, and that the business is now owned by him and his cousin, Lynn Bizer. The record does not identify who is/was Lewis S. Bizer.

344.040(l). A Jefferson Circuit Court jury returned a verdict in favor of Bizer and judgment was entered accordingly. The Court of Appeals affirmed. We now reverse for a new trial because of the admission of hearsay evidence in the form of written summaries of interviews that were marked as exhibits and taken to the jury room for consideration during deliberations. Because this case is being remanded for a new trial, we will also address Berrier's claims of error with respect to (1) requests for admissions served on Bizer pursuant to CR 36.01; (2) evidence of alleged postdischarge retaliation; and (3) punitive damages. Bizer employs approximately 500 persons at a number of optometry stores in the Louisville area. Berrier was employed as a dispense+ at the Preston Highway store from September 21, 1991 until she was discharged without notice on November 22, 1993. Berrier claims she was discharged because (1) her pregnancy required more work absences and rest breaks than her store manager, Barry Gallas, considered appropriate; and (2) she had complained to the Kentucky Labor Cabinet, Division of Employment Standards, that the store's "open" rest break policy violated KRS 337.365 ("[n]o employer shall require any employee to work without a rest period of at least ten (10) minutes during each four (4) hours worked"). A subsequent investigation by the Division of Employment Standards found that Bizer's rest break policy did not violate the statute. Bizer claims Berrier was discharged because of "gross misconduct," specifically, a November 10, 1993 verbal confrontation with Barry Gallas in the presence of employees and customers, characterized by Bizer as "blatant insubordination."

* A dispenser fits patients with eyeglasses and makes minor, comfort adjustments during follow-up visits. -2-

I. HEARSAY: "WITNESS INTERVIEW" SUMMARIES. Between June 13 and June 21, 1994, Bizer's attorney interviewed nine employees of Bizer's Preston Highway store with respect to the incidents leading up to Berrier's termination. He made handwritten notes during the interviews and reduced the notes to separate typewritten "witness interview" summaries. He then furnished each witness with a copy of her "witness interview" summary for suggestions or corrections. Most of the summaries were returned with handwritten notes or corrections added. Prior to the November 1997 trial, each witness was again given a copy of her "witness interview" summary to refresh her recollection. So far, so good. However, at the conclusion of the direct examination of each witness at trial, Bizer's attorney produced that witness's "witness interview" summary, had the witness authenticate it, and, over the continuing objection of Berrier's attorneys, introduced it into evidence as a marked exhibit. The jury was permitted to take these exhibits to the jury room for consideration during deliberations. We will not burden this opinion with the content of each "witness interview" summary or the manner in which it was authenticated and introduced into evidence. Typical, however, was the summary of the interview of Michele Logsdon, which provided as follows: I met this date (June 13, 1994) with Ms. Michele Logsdon. Ms. Logsdon is employed at the Preston Highway street location of Dr. Bizer's Vision. She has worked for the Company for approximately five years; two and half years at Preston, one and a half years at Clarksville, and one and a half years at the Dixie Highway location. Wakefield [now Berrier] was at the Preston Highway location nearly the entire time that Ms. Logsdon was employed at that store. Ms. Logsdon recalls that Wakefield was a trouble maker in her dealings around the store. She often made comments to co-workers about Barry Gallas. She didn't seem to like changes in procedures that Gallas had instituted. She advised her co-workers that they would be wasting their time to go to Barry Gallas to discuss business-related

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problems. In general, Wakefield was a drag on the morale of her co-workers. Ms. Logsdon was not present during the "blow up" which occurred approximately two weeks prior to Wakefield's termination. However, she heard about the blow up from another frame stylist, Ms. Karchner. The blow up was a common topic of discussion among co-workers of Wakefield. The most common observation was the question of how Wakefield could get away with such behavior. Concerning the wage and hour investigation, Ms. Logsdon recalled that it occurred at some point during the Fall. It seemed to be common knowledge on the part of everyone around the store that Wakefield had called the Wage and Hour Board. In fact, Ms. Logsdon overheard a comment Wakefield made to Ms. Connie Bruner wherein Wakefield asked if Bruner was going to "burn Barry's a--." Ms. Logsdon recalled that generally very few people liked Wakefield. It was Ms. Logsdon's opinion that she should have been fired long ago and that she got away with too much insubordinate or other improper activity. For example, the "blow up" occurred in front of both coworkers and patients. For some reason, Ms. Logsdon observed that Barry Gallas seemed to bend over backwards to accommodate Sheri. Even though Wakefield had animosity for Gallas, no personal animosity to Wakefield was shown by Gallas. In particular, Ms. Logsdon did not notice any change of attitude by Barry Gallas or anyone else with respect to Wakefield after it was learned that she was pregnant. Ms. Logsdon recalled that Wakefield was granted lots of flexibility regarding prenatal needs. The Company also attempted to accommodate Wakefield's doctor's appointments. Wakefield's patient care was the subject of occasional patient complaints. One in particular was documented by Ms. Logsdon. In essence, it appeared to Ms. Logsdon that Wakefield used her pregnancy to avoid the responsibilities of her job at the store. At one point, Wakefield went so far as to say that after she was pregnant she would likely go on AFDC and not return to work. There are multiple reasons why the admission of this statement and its treatment as a trial exhibit requires reversal for a new trial. First, the statement contains numerous prejudicial assertions and opinions that were not repeated in Logsdon's sworn testimony at trial. Specifically, Logsdon did not testify that Berrier was a "trouble

maker," or a "drag on the morale of her co-workers," or that Berrier "should have been fired long ago and that she got away with too much insubordinate or other improper activity." Nor did she testify that Berrier told her that "after she was pregnant she would -4-

likely go on AFDC and not return to work." Those statements were not the testimony of the witness, but statements attributed to the witness by Bizer's attorney. Logsdon not asked if the contents of the summary were accurate, but only if she wished to change anything in the summary. The proscription in KRE 611 (c) against asking leading questions on direct examination would have precluded Bizer's attorney from specifically asking Logsdon if Berrier was a "trouble maker," "a drag on morale," or was

"insubordinate," or otherwise putting words in her mouth. By introducing the "witness interview" summary, he accomplished much more. Not only was he able to introduce Logsdon's derogatory opinions of Berrier's workplace conduct without eliciting them directly from the witness, he was able to frame the evidence in his own words, not the witness's Even if the "witness interview" summary had been prepared by Logsdon, herself, it would have been hearsay, since it was an out-of-court statement offered to prove the truth of the matter asserted. KRE 801(c); Fields, KY., 12 S.W.3d

275, 279 (2000). A hearsay statement of a non-party witness is admissible only if the statement is: (1) Inconsistent with the declarant's testimony; (2) Consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or (3) One of identification of a person made after perceiving the person. KRE 801A(a). Logsdon did not testify inconsistently with the contents of the "witness interview" summary and her testimony did not pertain to identification. Nor was there any express or implied charge that her trial testimony was recently fabricated or the product of improper influence or motive. In fact, the summary was introduced during the direct examination of Logsdon, not in rebuttal. -5

Bizer claims the summary was a "recorded recollection," KRE 803(5), offered to refresh Logsdon's memory. KRE 612. This argument confuses the concepts of "past recollection recorded" and "present memory refreshed." KRE 612 applies to the latter and permits the writing to be introduced only by the adverse party. A writing used to refresh memory does not, through that process, acquire any status as evidence. It may not be introduced as such by the party using it to refresh memory and, as stated in one opinion, it "cannot be read under the pretext of refreshing the recollection of the witness." R. Lawson, The Kentucky Evidence Law Handbook

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