Payne et al v. Baptist Life Communities et al

Filing 56

MEMORANDUM OPINION & ORDER: It is ordered Defendant's 51 MOTION for Summary Judgment is GRANTED. A separate Judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 02/11/2014.(TED)cc: COR Modified text for judge on 2/11/2014 (TED).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON

CIVIL ACTION NO. 2012-152 (WOB-JGW)
ANTHONY PAYNE, ET AL.
VS.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

BAPTIST LIFE COMMUNITIES, ET AL.

DEFENDANTS

This is an action by Anthony Payne and Bridgett Hughes
Payne (“Plaintiffs”), against Baptist Life Communities and
Baptist Towers (“Defendants”).

Anthony Payne asserts

claims under state and federal law for race and gender
discrimination, state law age discrimination, and state and
federal retaliation, while Bridget Hughes Payne asserts a
Title III ADA claim.
This matter is before the Court on Defendants’ motion
for summary judgment.

(Doc. 51).

Having reviewed the parties’ briefs, the Court
concludes that oral argument is unnecessary to the
resolution of this motion.

The Court therefore issues the

following Memorandum Opinion and Order.
FACTS
Plaintiff Anthony Payne, an African-American male over
forty years old, began working for Baptist Life Communities

in early 2009 as a housekeeper, and he was terminated on
December 5, 2012.

(Doc. 49-13, Letter to Anthony Payne

Confirming Termination).

Plaintiff alleges several

incidents of alleged discrimination.
First, a cash box went missing in February 2011.1
Plaintiff Anthony Payne alleges his cleaning cart was the
only one searched, he was the only employee drug tested,
and he was suspended.
Complaint).

(Doc. 21 ¶¶ 10-14, Amended

However, in his deposition he stated that he

merely believes his cart was the only one searched but he
never asked the other housekeepers if their carts were
searched.

(Doc. 49 p. 22-23).

Further, a summary of notes taken by Ryan Woodle, a
Human Resources representative, which is cited by the
Defendants, states that all housekeeping carts were
searched, all of the housekeepers were drug tested, and
that the most senior housekeeper was the only one given
access to the first floor after the incident.
Formal Meeting Notes from June 15, 2011).

(Doc. 49-7,

In addition,

these records reflect that two drug tests came back
positive, those of Plaintiff Anthony Payne and another male

The Complaint alleges this incident occurred in April
2011, while Ryan Woodle’s notes state that it occurred in
February 2011. The discrepancy in these dates is
immaterial.

1

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employee.

(Id.)

Both men were sent for another test which

came back negative, and both were paid for their time off
pending the second test’s results.

(Id.)

Second, Plaintiff Anthony Payne alleges he complained
to Erin Koshover in June 2011 about his pay, and in
response to his complaint, he was suspended.

(Doc. 21 ¶

15). Erin Koshover, Assistant Administrator, suspended
Plaintiff Anthony Payne for three days because she felt
threatened by his loud and harsh tone, his refusal to leave
her office, and his apparent agitation.
Employee Warning Notice).

(Doc. 49-3,

Further, Plaintiff Anthony Payne

agreed that the notes taken by Ryan Woodle in the June 9,
2011, meeting are accurate.

(Doc. 49 pp. 40-41, Deposition

of Anthony Payne).
Finally, Plaintiff Anthony Payne asserts that he was
suspended after complaining about a hostile work
environment.

(Doc. 21 ¶ 9).

However, in his deposition he

was asked to whom he complained about the hostile work
environment, and he replied: “I don’t know, probably my
lawyer.”

(Doc. 49 p. 62, Deposition of Anthony Payne).

When asked if he specifically complained to anyone at
Baptist Life Communities about a hostile work environment,
he answered simply: “No.”

(Id.)

Plaintiff Bridgett Payne asserts a Title III ADA

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claim.

(Doc. 21 ¶¶ 43-63, Amended Complaint).

In April

2011, she arrived to pick up Plaintiff Anthony Payne, her
husband, from work.

(Doc. 21 ¶ 16, Amended Complaint).

She alleges that she suffers from a condition called “DDD”
which results in a sudden urge to use the bathroom.
at ¶ 17).

(Id.

She entered Baptist Towers, used the restroom,

and went back to her car, where she was approached by Erin
Koshover and another employee named Sarah.
26).

(Id. at ¶¶ 18-

She was then told that she could no longer enter

Baptist Towers for any reason, only that she could pick up
her husband.

(Id. at ¶ 27).

However, in Plaintiff Bridgett Payne’s deposition she
stated that when she entered Baptist Towers on this day,
she called Krystal Clayton a “thieving bitch” after she
walked past her.

(Doc. 50 pp. 10-11, Deposition of

Bridgett Payne).

After Bridgett Payne returned to her

vehicle, Erin Koshover and Sarah came out and told her that
because she attacked one of Baptist Tower’s employees she
was not allowed back into the building.

(Id. at p. 14).

The confrontation escalated with Plaintiff Bridgett Payne
raising her voice and exiting her vehicle.

(Doc. 49 p.

104, Deposition of Anthony Payne).
Plaintiff Bridgett Payne admits that, after this
incident, she never requested to use the bathrooms at

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Baptist Towers again.
Bridgett Payne).

(Doc. 50 pp. 21-22, Deposition of

In addition, she never notified anyone at

Baptist Towers that she had a disability which caused her
to need to use the bathroom.

(Id. at p. 22).

ANALYSIS
A. Plaintiff Anthony Payne’s claims fail because he
fails to satisfy his evidentiary burden.
Assuming, arguendo, Plaintiff Anthony Payne has
successfully stated a prima facie case, he nonetheless
fails to satisfy the final prong of the applicable burdenshifting test.

If the plaintiff satisfies the prima facie

case, then the burden shifts to the defendant to show a
legitimate, nondiscriminatory reason for its actions.
Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th.
Cir. 2008) (citation omitted).

If the employer satisfies

this burden, the employee must then demonstrate by a
preponderance of the evidence that the legitimate reason
offered by the employer was in fact only a pretext designed
to mask retaliation or discrimination.

Id.

Defendants have satisfied their burden.

Defendants’

motion for summary judgment cites to testimony and other
admissible portions of the record rebutting Plaintiff’s
claims.

In particular, Defendants have put forward

evidence that they fired Plaintiff Anthony Payne because of

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insubordinate and unprofessional conduct on his part.
(Doc. 49-3, Employee Warning Notice from June 2, 2011
Incident; Doc. 49-3, Termination Letter; Doc. 49 pp. 82-85,
Deposition of Anthony Payne).
Plaintiffs’ response to the motion for summary
judgment makes a number of conclusory statements, but it
makes no particular citations to the record showing that
there is admissible evidence to meet plaintiffs’
evidentiary burden.
Further, Plaintiffs argue their case under the summary
judgment jurisprudence of the Commonwealth of Kentucky,
rather than the Federal Rules of Civil Procedure.

Under

the rule of Hanna v. Plumer, where a procedural matter is
governed by a specific federal rule of civil procedure,
federal law applies.

380 U.S. 460, 473-74 (1965).

Therefore, the leading Kentucky case on summary judgment,
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d
476, 478 (Ky. 1991), is inapplicable.
Rather, Federal Rule of Civil Procedure 56 is
applicable, which provides:
(c)(1) Supporting Factual Positions. A party
asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made

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for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
. . .
(3) Materials Not Cited. The court need consider
only the cited materials, but it may consider
other materials in the record.
. . .
(e) Failing to Properly Support or Address a
Fact. If a party fails to properly support an
assertion of fact or fails to properly address
another party's assertion of fact as required by
Rule 56(c), the court may:
(1) give an opportunity to properly support
or address the fact;
(2) consider the fact undisputed for
purposes of the motion;
(3) grant summary judgment if the motion and
supporting materials--including the facts
considered undisputed--show that the movant is
entitled to it; or
(4) issue any other appropriate order.
Plaintiffs make no effort to comply with this rule and
apparently are unaware of its existence.

Therefore, the

Court will grant summary judgment pursuant to Rule
56(e)(3), supra, on Plaintiff Anthony Payne’s claims.
B. Plaintiff Bridgett Payne’s ADA Claim will be
dismissed because she lacks standing.
In addition to the above flaws, Plaintiff Bridgett
Payne lacks standing.

The constitutionally-minimum

requirement for standing relevant here is that the
plaintiff's injury or threat of injury must likely be
redressable by a favorable court decision and not merely

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speculative.
561 (1992).

Lujan v. Defenders of Wildlife, 504 U.S. 555,
That is, “[w]hen a request for injunctive

relief is based upon a past wrong, a plaintiff must show a
real or immediate threat that the plaintiff will be wronged
again — a likelihood of substantial and immediate
irreparable injury.”

Davis v. Flexman, 109 F. Supp. 2d

776, 783 (S.D. Ohio 1999) (quotation marks omitted)
(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111
(1983)).
Similar to the plaintiffs in Davis, Plaintiff Bridgett
Payne only went to Baptist Towers to pick up her husband
from work.

In Davis, the plaintiffs admitted they did not

intend to return to the location at issue in the future.
Since Plaintiff Anthony Payne was terminated, Plaintiff
Bridgett Payne has no reason to return to Baptist Towers,
so any injunctive relief would be illusory; there is no
real threat that she will be wronged again in the future.
Thus, she lacks standing and the claim must be dismissed.
Therefore, having reviewed this matter, and the Court
being otherwise sufficiently advised,
IT IS ORDERED that the Defendants’ motion for summary
judgment (Doc. 51) be, and is hereby, GRANTED.
judgment shall enter concurrently herewith.

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A separate

This 11th day of February, 2014.

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