Kenneth Brown v. louisville/jefferson County Metro Government
CourtCourt of Appeals of Kentucky
Date FiledOctober 23, 2026
Docket2025-CA-1226
JudgeCombs
StatusUnpublished
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Full Opinion
RENDERED: OCTOBER 23, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-1226-MR
KENNETH BROWN APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE JULIE KAELIN, JUDGE
ACTION NO. 22-CI-003863
CHIEF ERIKA SHIELDS, IN HER
OFFICIAL AND UNOFFICIAL
CAPACITY; LOUISVILLE METRO
POLICE DEPARTMENT; AND
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT APPELLEES
OPINION
AFFIRMING
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BEFORE: COMBS, ECKERLE, AND TAYLOR, JUDGES.
COMBS, JUDGE: Kenneth Brown, a former patrol officer with the Louisville
Metro Police Department (LMPD), appeals the summary judgment granted by the
Jefferson Circuit Court on August 20, 2025, dismissing his claims of employment
discrimination and breach of contract. Brown also seeks to appeal the circuit
court’s order denying his motion to vacate the judgment filed pursuant to the
Kentucky Rules of Civil Procedure (CR) CR 59.05. In that order, the court
rejected Brown’s contention that he had not received adequate notice of his
opponents’ motion for summary judgment. Having considered the arguments of
counsel and the applicable law, we affirm both the judgment and the post-judgment
order denying relief.
In order to prepare an adequate summary of the facts and procedural
history of this matter, we have reviewed the entirety of the trial court’s record. It
has been necessary to do so because -- despite the clear requirements of the
Kentucky Rules of Appellate Procedure (RAP) -- throughout his brief Brown cites
a mere 6 lines of deposition testimony for which no page numbers have been
provided. See RAP 32(A)(3) (requiring the statement-of-the-case section of an
appellant’s opening brief to contain “ample references to the specific location in
the record supporting each of the statements”).
The circuit court’s record indicates that Brown graduated from
Shawnee High School in 2001 and then earned a bachelor’s degree from
Northwood University in Midland, Michigan. He began working as a patrol
officer with LMPD in June 2012.
In 2014, Brown served a thirty (30)-day suspension for violating
LMPD standard operating procedures related to: his handling of evidence;
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response to orders; obligation to make honest statements; and commitment to
officer responsibilities. In 2015, he served a three (3)-day suspension for activity
related to his improper use of a vehicle. In 2018, he received a written reprimand
and was required to undergo driver’s training related to a vehicular accident. He
received two more reprimands on different occasions in 2018 related to his duties
and court attendance. At the time of his deposition in May 2025, Brown was
serving another suspension based upon a Professional Standards Unit investigation.
He is no longer employed by LMPD.
In September 2018, Brown applied for promotion to a sergeant’s
position with LMPD. In the Spring of 2019, by virtue of having successfully
completed the oral and written sergeant’s exam, Brown became eligible for
promotion. However, with respect to his exam performance, Brown ranked 81 out
of the 84 eligible candidates.
According to LMPD Merit Board rules and the collective bargaining
agreement between Louisville/Jefferson County Metro Government and River City
Fraternal Order of Police (FOP) governing the promotion of officers, department
vacancies were to be filled from the eligibility list within sixty (60) days of a
vacancy. The eligibility list expired on March 21, 2021. Despite three reviews,
Brown was skipped over for promotion by at least two prior department chiefs
before the eligibility list expired. After the list expired, but while two vacancies
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remained unfilled, then LMPD Chief Erika Shields promoted two officers to
sergeant. Brown interviewed for one of these positions in mid-2021, but he was
not selected for promotion by Chief Shields. Chief Shields testified at her
deposition that she did not believe that Brown was qualified for the promotion -- in
part -- because he had been passed over on three earlier occasions by at least two
previous chiefs.
In her deposition, the next LMPD Chief Jacquelyn Gwinn-Villaroel
testified that as Chief Shields’s deputy chief, she met with Brown and former FOP
President Ryan Nichols to discuss Chief Shields’s decision not to select Brown for
promotion. Gwinn-Villaroel testified that she told Brown that she did not believe
that his past infractions would continue to impact his opportunities for promotion if
he were to requalify for the eligibility list. She encouraged him to remain engaged
with his work and optimistic about his opportunities for promotion. There is no
suggestion that FOP ever filed a grievance on Brown’s behalf regarding LMPD’s
decision not to promote him.
In July 2022, pursuant to the Kentucky Civil Rights Act, Kentucky
Revised Statutes (KRS) Chapter 344, Brown (Brown is African-American) filed a
complaint in Jefferson Circuit Court against LMPD, former Chief Shields, and
Louisville-Jefferson County Metro Government. He alleged that three white
officers with “far more egregious violations” had been promoted in 2018, 2019,
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and 2022. He also alleged that LMPD’s failure to promote him violated portions
of the collective bargaining agreement. Finally, Brown alleged that the thirty-day
suspension he served with respect to his mishandling of evidence (retention of
wallets taken from arrestees) was unlawful because the investigator (a white
female) kept the evidence in her desk once the wallets were retrieved from his
(Brown’s) patrol car. He sought compensatory and punitive damages.
In August 2022, LMPD and former Chief Shields, in her official
capacity, filed a motion to dismiss the claims asserted against them. LMPD
contended “that it was not an entity capable being sued”; Chief Shields asserted the
defense of sovereign immunity to the claims asserted against her in her official
capacity. (Appellee brief, p. 3.) The circuit court granted the motion in November
2024, and no appeal was taken.
On July 16, 2025, LMPD and former Chief Shields, in her individual
capacity, filed a well-supported motion for summary judgment. They argued that
they were entitled to judgment as a matter of law because there was no evidence to
support Brown’s claim that he had been discriminated against based upon his race;
that his claim of sex discrimination was time-barred; and that provisions of the
collective bargaining agreement had not been materially breached. Additionally,
former Chief Shields argued that she was entitled to qualified immunity with
respect to her decision not to promote Brown during her tenure.
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Brown did not respond to the motion. Instead, on July 23, 2025, he
filed a motion asking the court to order mediation. In response to the motion, the
trial court instructed the parties that mediation could be scheduled but only
“AFTER summary judgment briefing and order has ended.” On August 5, 2025,
soon after the court’s order denying his motion for mediation was entered, Brown
filed a document entitled “Plaintiff’s Memorandum of Law and Fact.”
Thereafter, on August 20, 2025, the trial court’s order granting
summary judgment was entered. In its order, the court observed that Brown’s two-
paragraph response “makes zero legal arguments” and only “cites a single case”
without explaining how it applies. The court concluded that Brown’s response
failed to present affirmative evidence to show that any genuine issue of material
fact remained for trial and that LMPD and former Chief Shields had shown that
they were entitled to judgment as a matter of law.
On August 29, 2025, Brown filed a motion to “alter, reconsider, or
vacte (sic) pursuant to CR 59.05,” in which Brown’s counsel contended that he
was unable to respond to the motion for summary judgment because he did not
receive adequate notice of it. However, counsel did not suggest that electronic
notice of the motion was improperly served through the court’s e-filing system.
Instead, he represented that the notice and motion went to his “spam” folder.
Counsel explained that his email account was “set up to not provide notification of
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spam messages.” He explained that the memorandum he filed August 5, 2025, was
not intended as a response to the motion for summary judgment. Instead, while
“admittedly incomplete,” it was “meant to satisfy the Court’s Trial Order
deadline.” Counsel argued that to avoid manifest injustice, the summary judgment
“should be reconsidered and revised on the facts alleged in this case.”
In an order entered a few days later, the trial court denied the motion.
The court concluded that the deficiency of counsel’s email settings did not justify
his failure to respond to the motion -- especially where Brown’s counsel was fully
aware of this very problem. The court observed that the motion had also been
served on counsel through conventional post and that the court’s order of July 24,
2025, made specific reference to the outstanding motion for summary judgment.
The circuit court concluded that a review of the record made it clear that LMPD
and former Chief Shields were entitled to judgment as a matter of law. The court
observed that it would not permit “this lack of diligence” to serve as the basis to
continue litigation of claims that had been shown to be meritless.
Brown filed a timely notice of appeal on September 26, 2025.
On appeal, Brown argues that the trial court abused its discretion by
granting summary judgment. He states that the court erred: because he presented a
prima facie case of employment discrimination; that genuine issues of material fact
remain outstanding; and that he was not afforded a fair opportunity to prove that
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Chief Shields’s stated reasons for deciding not to promote him were pretextual.
Additionally, he argues that the summary judgment motion was “improperly
noticed due to the failure of the e-service delivery which sent the motion to
[counsel’s] email spam folder” and that for that reason the circuit court abused its
discretion by failing to grant relief pursuant to his post-judgment motion for relief.
Because the merits of the case had been demonstrated through the “[c]omplaint
and subsequent case filings and activities,” Brown contends that the trial court’s
decision should be reversed. We consider these issues in reverse order.
Our case law is clear that there is no appeal from the denial of a CR
59.05 motion. Ford v. Ford, 578 S.W.3d 356, 366 (Ky. App. 2019). The denial
does not alter the judgment; consequently, the appeal is taken from the underlying
judgment -- not the denial of the motion for relief. Nevertheless, the post-
judgment issue that Brown presented to the circuit court concerning counsel’s
failure to respond to the summary judgment motion based upon characteristics of
his email system appears to be more properly suited to a CR 60.02 motion for
relief.
While CR 59.01 orders necessarily involve substantive issues related
to the proceedings that are generally intertwined with the merits of the appeal,
relief sought pursuant to the provisions of CR 60.02 usually involves issues
extraneous to the merits of the case. Younger v. Evergreen Group, Inc., 363
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S.W.3d 337, 339–40 (Ky. 2012). Moreover, the denial of relief under CR 60.02
itself is appealable. See Brozowski v. Johnson, 179 S.W.3d 261, 263 (Ky. App.
2005). Therefore, we analyze the court’s decision as if the issue had been properly
presented by Brown pursuant to the provisions of CR 60.02.
CR 60.02 provides that a court may, upon motion and such terms as
are just, relieve a party or his legal representative from its final judgment on
numerous grounds -- including mistake, inadvertence, surprise or excusable
neglect, and any other reason of an extraordinary nature justifying relief. The rule
acts as a “safety valve, error correcting device for trial courts.” Kurtsinger v. Bd.
of Trustees of Ky. Ret. Sys., 90 S.W.3d 454, 456 (Ky. 2002). It is designed to
allow trial courts a measure of flexibility to achieve just results; it provides the trial
court with extensive power to correct its judgment. Id. Accordingly, a motion
filed pursuant to CR 60.02 addresses itself to the broad discretion of the trial court.
Id. A trial court abuses its discretion only where its decision is deemed arbitrary,
unreasonable, unfair, or unsupported by sound legal principles. See
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
The trial court did not abuse its discretion by denying Brown’s request
for post-judgment relief in this case. Counsel gave his consent to electronic
service of documents. Transmission of an email generated by the court’s e-filing
system constitutes service under our civil rules. CR 5. Brown’s counsel does not
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dispute that he did actually receive an email from the court’s e-filing system
alerting him that the motion for summary judgment motion had been filed. A
screen shot clearly shows that it was timely delivered to his email address.
Moreover, counsel admitted that he was aware that e-filing notices went to his
spam folder. Counsel acknowledged that he checked the spam folder periodically
for this reason. In fact, when counsel checked the folder, he discovered the notice
of filing and link to the motion. These facts do not describe a failure of computer
technology justifying extraordinary relief from the trial court. Additionally, there
is no evidence to suggest that opposing counsel knew or had reason to know that
Brown’s counsel was unaware that the summary judgment motion had been filed.
Under the circumstances, the circuit court did not abuse its discretion by rejecting
Brown’s request for post-judgment relief.
Next, we consider Brown’s specific arguments with respect to the
circuit court’s decision to grant summary judgment. Summary judgment is
properly granted only 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.” CR 56.03. While the party
seeking disposition by summary judgment bears the initial burden of establishing
that no genuine issue of material fact exists, the burden shifts to the party opposing
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the motion to present “at least some affirmative evidence showing that there is a
genuine issue of material fact for trial.” Lewis v. B & R Corp., 56 S.W.3d 432, 436
(Ky. App. 2001) (citing Steelvest Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476,
482 (Ky. 1991)). The trial court “must examine the evidence, not to decide any
issue of fact, but to discover if a real issue exists.” Steelvest, 807 S.W.2d at 480.
Because we consider only legal questions and determine whether there were
material facts genuinely at issue, our review is characterized as de novo. Lewis, 56
S.W.3d at 436. We do not defer to the circuit court’s legal conclusions. Frear v.
P.T.A. Industries, Inc., 103 S.W.3d 99, 105 (Ky. 2003) (citing First
Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829, 835 (Ky. App.
2000)).
In his appellate brief, Brown offers no argument with respect to the
trial court’s ruling that former Chief Shields is entitled to summary judgment based
upon her qualified immunity for the decision not to promote Brown in 2021/2022.
His only reference to that issue is contained in a heading outlining the contents of
the brief. An argument on the merits does not appear anywhere in the brief.
Consequently, we decline to address the issue. See Bradley v. Commonwealth ex
rel. Cameron, 653 S.W.3d 870, 876 (Ky. 2022) (The court is not obligated to
discover arguments that a party might advance on appeal, legal authority to support
those arguments, or a factual basis underlying them).
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Similarly, Brown fails to develop an argument that the trial court erred
by granting summary judgment with respect to his claim for employment
discrimination. Instead, Brown merely asserts that “he has presented material facts
against the Defendants for race and gender discrimination.” He identifies
assertions contained in his complaint indicating that he became eligible for
promotion based upon his performance on the “promotional examination,
disciplinary record, and professional achievements” and argues that he presented a
prima facie case of discrimination.
Again, a party presented with a motion for summary judgment has the
burden of presenting at least some affirmative evidence showing that there is a
genuine issue of material fact for trial. Steelvest, Inc., 807 S.W.2d at 482. Reliance
upon “claims [and] arguments without significant evidence” is improper, Wymer v.
J.H. Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001), and “speculation and
supposition are insufficient to justify a submission of a case to the jury. . . .”
Goodman v. Goldberg & Simpson, P.S.C., 323 S.W.3d 740, 744 (Ky. App. 2009)
(quoting Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)).
Without identifying any genuine issues of material fact, Brown
contends that the trial court’s decision to grant summary judgment is clearly
erroneous. However, he submitted nothing to refute LMPD’s evidence indicating
that the decision not to promote him was based upon his character and ability --
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and not upon his race or gender. The assertions included in Brown’s complaint did
not create genuine issues of material fact precluding summary judgment. Nor are
his feelings that he was unfairly treated sufficient to establish a genuine issue of
material fact.
Finally, we consider Brown’s contention that the trial court erred by
granting summary judgment with respect to his claim that LMPD and former Chief
Shields violated provisions of the collective bargaining agreement governing the
promotions process. He contends that evidence of record establishes that Chief
Shields violated the terms of the agreement by failing to make necessary
promotions before the eligibility list expired. However, the terms of the agreement
expressly provide that the exclusive means of resolving disputes arising thereunder
is through the agreement’s grievance procedure. Nothing in the record indicates
that Brown followed this procedure; he does not argue in his brief that he did so.
We decline to construct an argument or look for support for one. Thus, we are
persuaded that the trial court did not err by concluding that no genuine issue of
material fact exists regarding Brown’s claims. Therefore, summary judgment was
proper.
We affirm the judgment of the Jefferson Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Aubrey Williams Kathryn Goodwin
Louisville, Kentucky Whitney Meagher
Louisville, Kentucky
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