Robert L. Abell represents individuals, families and, occasionally, small businesses. It would be fair to call him a trial lawyer.
The cases he handles for these clients mainly involve employment, which includes cases of sex discrimination, race discrimination, age discrimination, disability discrimination, wrongful discharge, FMLA, unpaid overtime and wages, retaliation, whistleblower, and Kentucky workers compensation.
The practice also includes representing clients in personal injury and accident cases, disability insurance cases and in a variety of complex civil cases. Having started out his career as a public defender for the Legal Aid Society in New York City, Robert also maintains a substantial criminal defense practice.
The key to representing clients is gaining an understanding of their situation and needs, as well as the factual and legal context. This takes time and requires much client involvement and contact.
You can get a sense of some of these cases from the following sample of cases that Robert L. Abell has handled over the course of the last 35+ years. You can click on links in each entry to read some of the filings.
Employment Discrimination - Employment discrimination cases also arise in a variety of contexts - termination, failure to hire, pay discrimination, hostile work environment, retaliation and the like as these examples show:
- Melgar v. University of Kentucky - Sergio Melgar was the remarkably successful Chief Financial Officer for UK Healthcare. He raised questions about his pay and then, using university procedures, filed a charge of race and national origin discrimination which led to his retaliatory firing. A Fayette County jury awarded him a total of $1.75 million in damages. The Fayette Circuit Court later awarded $250,000 + in attorneys' fees to Robert Abell and Mr. Melgar's lead counsel, the estimable Jon Allison. Watch Robert Abell's questioning of UK President Eli Capilouto; read the jury's verdict, read the attorneys' fee award.
- Massarone v. LFUCG - Melinda Massarone was the first woman to rise to the rank of Captain in the Lexington police department before she encountered what can only be considered and described benignly now as a “glass ceiling” and her career was ended. She sued for sex discrimination, retaliation and aiding and abetting discrimination and the case generated substantial news coverage. Read the Complaint and Amended Complaint filed in Fayette Circuit Court; Walsh Is Target of Sex Bias Complaint, Suit Claims Sexual Discrimination by Lexington Chief, Sex Claim Ok'd for Walsh Trial, Sexual Assault Claims Included, Ex-Chief Accused of Forcing Sex on Officer, Former Officer Recants Charge Against Walsh, Attorney: Claim Not Weakened in Walsh Case, Lawsuit Naming Walsh Settled.
- Wells v. Columbia Gas - Mr. Wells worked for Columbia Gas for nearly 40 years and was nearing retirement when he was fired for a trumped-up reason that, in the jury’s view, had no credibility. He sued for age discrimination, the jury found in his favor and awarded him $165,377 in damages including $50,000 in punitive damages. Read the Amended Complaint filed in Fayette Circuit Court, Jury Instructions and Verdict, Memorandum Opposing Columbia Gas's Motion to Override the Jury's Verdict, Memorandum Opposing Columbia Gas's Motion for A New Trial, the Brief filed with the Kentucky Court of Appeals on Mr. Wells' behalf and the Opinion of the Kentucky Court of Appeals upholding the jury's verdict. Also a story in the Lexington Herald-Leader, Columbia Gas Held Guilty of Age Bias.
- Koonce v. Lexington Public Library - a public library employee suffered sex discrimination and retaliation in her employment and filed suit in Fayette Circuit Court. The case became most notable because the employer tried to block discovery of certain documents and, as a result, the issue went to the Kentucky Supreme Court, which ruled in Ms. Koonce’s favor. Read the Brief filed in the Kentucky Supreme Court on Ms. Koonce's behalf and the Opinion of the Kentucky Supreme Court in her favor.
- Talbert v. Columbia Gas - an African-American applicant for employment with Columbia Gas claimed race discrimination arising from the company’s failure to hire him and its application of different standards for hiring for white and black applicants. Read the Complaint filed in Fayette Circuit Court.
Haycraft v. Tokico Inc. - a white American male was subjected to abusive mistreatment and ultimately fired by the Japanese management that “subjected American employees to physical intimidation, including slapping them on the face, and regularly and frequently commented that American employees were lazy compared to Japanese employees.” Read the Complaint filed in Madison Circuit Court.
Leach v. Attorney General of the United States - a federal corrections officer brought suit based on a hostile work environment and retaliation. Read the Complaint filed in U.S. District Court in Lexington.
Bastin v. Kentucky State University - the chief of the university's campus police force, a white female, brought suit claiming that she was fired because of her race, a claim based in part on a senior administrator's statement that she didn't look right for her job and someone with a skin color more like the university's student body would be preferable for the job. Read the complaint filed in Franklin Circuit Court.
Overtime & Unpaid Wages – Overtime cases arise generally in one of three types of contexts: (1) an unfounded assertion that the employee is exempt from overtime pay requirements; (2) an incorrect assertion that the employee is an independent contractor not entitled to overtime; and, (3) a refusal to pay overtime no matter what federal and Kentucky state law says. Here’s some examples:
- Deakins v. Healthcare Services Group – an employee with the job title of “account manager” at a nursing home and who spent more than 80% of her time performing the same type of work as did all the other employees was misclassified as exempt from overtime. This is an example of misuse of the administrative or managerial exemption. Read the Complaint filed in Franklin Circuit Court and the Order of the U.S. District Court at Frankfort approving the parties’ settlement.
- Bush v. Logan’s Roadhouse – a waiter, who spent more than 20% of his work time doing non-tipped work, brought suit to recover unpaid wages that had not been paid because the employer wrongly applied the tip credit. Read the Amended Complaint filed in U.S. District Court at Lexington and the Order approving settlement.
- Peavler v. AASM, Inc, d/b/a Giovanni's Pizza – a pizza cook was not paid the overtime he had worked for and earned; sometimes the employer just doesn't care what the law requires. Read the Complaint filed in U.S. District Court at Lexington nd the Order approving settlement.
- Thacker v. MMD Mineral Sizing – a service tech that traveled all over the country to work on mining and other heavy equipment was misclassified as exempt from overtime filed suit to recover his unpaid overtime pay. Read the Complaint filed in U.S. District Court at Pikeville.
Kentucky Workers Compensation - Kentucky workers compensation cases most typically involve two types of contested issues: (1) the degree of impairment to the worker caused by the injury; and/or, (2) whether any degree of the impairment can be attributed to a prior injury or pre-existing condition. The following are illustrative:
- Archer v. Back Construction - The issue in this case was whether the impairment to Mr. Archer’s back was attributable to a pre-existing condition or prior injury or to the fall he suffered on his construction job. Read the Kentucky Court of Appeals Opinion ruling in Mr. Archer’s favor, read also the Brief filed with the Court of Appeals on Mr. Archer’s behalf.
- Turk v. Pikeville Medical College - The issue in this case was the degree of impairment suffered by Ms. Turk due to her fall and hip injury. The ALJ rejected the opinion of the workers’ compensation insurance company’s medical expert in the Opinion Order & Award in her favor.
- McDonald v. Commonwealth, Dept. of Juvenile Justice - It is hard to describe the issue in this case, since the state’s medical expert agreed both that Ms. McDonald’s knee replacement was necessary and caused by a fall in her workplace and regarding the degree of her impairment rating. The state also refused to pay medical bills. Sometimes the strategy is to try and drag things out as long as possible and try and make the claimant cave. It didn’t work. Read the ALJ’s Opinion Order & Award in Ms. McDonald’s favor.
- Land v. Frito-Lay - The issue in this case was the extent of Mr. Land’s impairment and the extent to which it was attributable to pre-existing back conditions. The ALJ ruled completely in his favor. Read the Opinion and Award by the ALJ.
- Casey v. Milner Electrical Company - Mr. Casey was fired after he was injured on the job and indicated that he was going to need further medical treatment and other benefits related to his injury under Kentucky workers compensation law. The jury agreed and he was awarded back pay, compensatory damages, punitive damages and attorney's fees totaling $140,789.52. See the Trial Verdict, Judgment & Final Order.
- Jackson v. Aulick Chemical Solutions - Mr. Jackson, truly one of the all-time straight shooters, was fired after he was injured on the job and only three days after indicating that he was going to require further and extensive medical treatment and other benefits related to his injury under Kentucky workers compensation law. The case was filed in U.S. District Court in Lexington (read the complaint and opinion denying summary judgment to the employer) and a settlement was reached after a jury trial was started.
- Wrongful Death/Interstate Trucking; Estate of Clark Legg v. Dandy Service Corporation - Mr. Legg was killed in an interstate trucking accident when a tractor trailer struck his truck on I-64 near Morehead, Kentucky; read the Complaint filed in Rowan Circuit Court.
- Personal Injury - Asbestos Exposure; Perkins, et al v. Serv-Air, Inc., et al - These clients were either employees or spouses of employees of the defendant corporation who exposed them to asbestos without proper protective clothing or equipment over the course of several years. Read the Amended Complaint and the Memorandum of Law successfully opposing the defendants' attempt to get the case thrown out of court.
- Injury to a Restaurant Customer; Maddox v. Lexidan, Inc. - a restaurant customer was injured badly when a confrontation between the restaurant employees and another group of patrons erupted into a melee and got Ms. Maddox caught up in it. Read the Complaint filed in Fayette Circuit Court.
Disability Insurance Benefits - Lyman Powell v. Hartford Life Insurance Company, U.S. District Court, Bowling Green. Mr. Powell brought suit seeking reinstatement of his disability insurance benefits by the Hartford. Although this type of case, which was brought under a federal law popularly known as "ERISA," is typically decided based solely on a review of the claims file without any discovery or presentation of further information, it was notable for the success in obtaining an order allowing investigation of the relationship between the Hartford and a third-party medical consulting group, the University Disability Consortium; read the Court's Opinion and Order.
Disability Discrimination - ADA - Disability discrimination cases most typically arise in two types of contexts: (1) an employer asserts without foundation that a particular duty or task is an “essential function” of a job and, therefore, the individual cannot do it even with an accommodation; and/or (2) an employer asserts that an accommodation is not or is no longer reasonable and thereby excludes the individual from the job or workplace. The following are examples with some variation on these two contexts:
- Snipes v. Kroger Company - Christine Snipes was badly injured in a car accident but continued to work despite her multiple disabilities. Her employer, after following the law for quite some time, ultimately refused to continue to accommodate her disability resulting in further injury to her as described in this complaint filed in U.S. District Court at Ashland.
- Cowing v. Lockheed Martin Corp. - Mr. Cowing, as a result of service in our Nation's armed forces, suffered from back injuries and related disabilities. After a flare-up and after his doctor prepared a list of physical restrictions, he was prevented from returning to work as an aircraft mechanic. This was a hard, difficult case fiercely defended by the corporation and eventually sprawling over Fayette Circuit Court, the Kentucky Court of Appeals, the Kentucky Supreme Court and the U.S. District Court in Lexington. You can get an idea of just how hard by reading this amended complaint filed in Fayette Circuit Court, this Brief and Reply Brief filed in the Kentucky Court of Appeals, this Motion for Discretionary Review filed in the Kentucky Supreme Court, this memorandum filed in U.S. District Court and this opinion by the U.S. District Court.
- Liberto v. Commonwealth, Dept. of Agriculture - Ms. Liberto, a deputy general counsel in the state Department of Agriculture, filed suit in Franklin Circuit Court arising from the department's discontinuation of the reasonable accommodation it had long afforded her disability, a rare and very serious pulmonary condition. Read the Complaint filed in Franklin Circuit Court. This case was settled and the law-breaking Kentucky Department of Agriculture was forced to obey the law and Ms. Liberto had her rights honored and enforced.
- McDonald v. Commonwealth, Dept. of Juvenile Justice - Ms. McDonald, a state employee, filed suit in Franklin Circuit Court claiming that the state failed to reasonably accommodate her disability when it refused to reassign her to a number of vacant positions for which she was qualified. Read the Complaint filed in Franklin Circuit Court.
Employment Litigation - the following are employment law cases that arose in a variety of circumstances and contexts.
- Adkins v. Justice & Public Safety Cabinet - a state merit employee challenged before the Kentucky Personnel Cabinet a promotion process where he was twice found to be the best-qualified candidate but was not selected. Read the blistering Findings of Fact, Conclusions of Law and Recommended Order of the hearing officer, which was helpful but did not go far enough so Exceptions had to be filed on Mr. Adkins' behalf, all of which got the Personnel Board to Order that the selection process be redone and Mr. Adkins got his deserved promotion. State agencies are more prone to follow the law and do what's right when they know the press is watching, and a couple of articles probably helped Mr. Adkins out, transparency being the greatest disinfectant, Democratic Leader's Role In Hiring of State Prison Worker Raises Questions, and State Board Delays Decision on Whether Legislator Influenced Hiring of His Friend.
- Nance v. Administrative Office of Courts - a Family Court Judge challenged the state AOC’s termination of an employee in his office. The challenge was unsuccessful but read the blistering dissent by the late Justice Wilfrid Schroder in the Kentucky Supreme Court’s Opinion.
Whistleblower - Hegeman v. LFUCG - a police lieutenant was retaliated against after he reported an assistant chief’s misuse of vacation time. Read the complaint filed in Fayette Circuit Court and coverage in the Lexington Herald-Leader, Police Lieutenant Sues Lexington; Charges Retaliation Over Timecard Issue and Police File Remains Confidential; Judge Involved In Suit Tied to Time Cards Says That Could Change.
Background Information on Robert Abell
- University of Kentucky, Lexington, Kentucky; Bachelor of Arts (History), 1983
- Tulane University Law School, New Orleans, Louisiana; Juris Doctor, 1987
- In Farmer Case, We Could Push Law So Far As To Criminalize Politics, Lexington Herald-Leader, April 30, 2013
- The Executive, Administrative and Professional Exemptions to the Overtime Requirement, The Advocate, January/February 2010
- Tort Reformers Want Cruel Cure for Fictional Ill, Lexington Herald-Leader, January 4, 2010
- "Exposing Deceptive Defense Doctors" by Dorothy Clay Sims (book review), The Advocate, September/October 2009
- A Guide to Getting "Differential Diagnosis" Evidence Admitted, The Advocate, July/August 2009
- There You Go Again; Admissibility of Other Bad Act Evidence Under KRE 404(b), The Advocate, May/June 2009
- Ask An Attorney Questions, Demand Straight Answers, Lexington Herald-Leader, March 2, 2009
- Law Helps Workers Recover Fair Pay, Lexington Herald-Leader, February 10, 2009
- Injured Workers May Pursue Civil RICO Claim Based on Enterprise to Deny Them Workers Compensation Benefits, The Advocate, January/February 200
- Congress Must Fix Inequitable Drug Sentences, Lexington Herald-Leader, February 14, 2005
- Punitive Damages Should Be Recoverable for Employment Discrimination Under the Kentucky Civil Rights Act, The Advocate, May/June 2001
- Liability Suits Are Path to Justice, Lexington Herald-Leader, February 28, 2000
- Special Counsel Law Doesn't Need Amending, New York Times, December 11, 1995 (Letter to the Editor)
Professional Honors & Activities:
- Kentucky Justice Association
- National Employment Lawyers Association
- National Association of Criminal Defense Lawyers
- Kentucky Bar Association
Presentations & Speeches:
- Regulating and Reporting: Duties of the Cabinet and the Health-Care Employee, Conference on Health Care Transparency and Patient Advocacy by Health Watch USA, Kentucky Watch and Kentuckians for Nursing Home Reform, November 2007
- Hide & Seek: Discovery & Evidentiary Issues in Employment Litigation, Kentucky Academy of Trial Attorneys, June 2001
- Recent Developments in Civil Rights Litigation, Fayette County Bar Association, February 1993.
- Panelist on First Amendment/free speech aspects of political campaign finance reform on Kentucky Tonight, May 14, 1998, June 21, 1999, and October 4, 2000.
- Supreme Court of Kentucky and its lower courts
- Supreme Court of Colorado and its lower courts
- State Bar of New York
- United States Supreme Court
- United States Court of Appeals for the Fourth Circuit
- United States Court of Appeals for the Sixth Circuit
- United States Court of Appeals for the Federal Circuit
- United States District Court for the Eastern District of Kentucky
- United States District Court for the Western District of Kentucky