Carter v. Toyota Tsusho America, Inc.
MEMORANDUM OPINION AND ORDER: dft's 34 Motion for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 03/09/2012. (RJD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
SPENCER J. CARTER, III
TOYOTA TSUSHO AMERICA, INC.
Civil Action No. 5:10-132-JMH
MEMORANDUM OPINION AND ORDER
This matter is before the Court on a Motion for Summary
Judgment [Record No. 34] filed by Defendant Toyota Tsusho America,
Inc. (“TAI” or “Defendant”).
Plaintiff Spencer J. Carter, III
(“Carter” or “Plaintiff”) responded in opposition to the motion
[Record No. 43], to which Defendant filed a reply [Record No. 46].
Subsequently, Plaintiff filed a surreply [Record No. 50], for which
leave was granted by the Court.
Plaintiff alleges that: (1) he was terminated because he is
African American in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”), as amended, and also in violation of the
Kentucky Civil Rights Act (“KCRA”), KRS § 344.040(1); (2) his
Discrimination in Employment Act (“ADEA”), as amended, and also in
violation of the KCRA, KRS § 344.040(1); and (3) TAI failed to
promote him based on his race in violation of the KCRA, KRS §
TAI argues that Plaintiff cannot establish a prima facie case
of discrimination for either of his claims because he was not
qualified for the position he held, nor was he qualified for the
position to which he contends he should have been promoted.
discrimination claim, that he was not replaced by a substantially
In the alternative, Defendant argues that
Plaintiff cannot rebut TAI's legitimate nondiscriminatory reason
for Plaintiff's termination or failure to promote by showing that
it was pretextual.
Plaintiff counters that he was qualified for
the position, that he was treated less favorably than someone
outside of the protected class, and that a reasonable jury could
conclude that TAI's offered reasons for Plaintiff's termination and
failure to promote him were pretext for unlawful discrimination.
For the following reasons, Defendant’s Motion will be granted.
TAI is a corporation engaged in the business of supplying
Plaintiff was hired to the position of General Manager
of Information Technology, Assistant Vice President (“AVP of IT”)
on January 7, 2002, shortly before his fiftieth birthday.
appears, based on the record before the Court, that Plaintiff
tenure. Prior to his employment with TAI, Carter had worked in the
field of information technology for approximately twenty years.
Carter reports that, during that time, he was never fired or forced
to resign from a job.
directing, organizing, planning, and controlling the IT Department
in efforts to further the accomplishment of TAI’s goals and
objectives across all locations. Plaintiff’s responsibilities also
included coordinating with and guiding other departments to achieve
the most productive and cost effective solutions to their IT
projects. Plaintiff’s leadership position also required him to
manage the day-to-day operations of the IT Department, which
satisfaction, budgeting, and working with human resources on hiring
and firing decisions.
William Wiener, who had been involved in the decision to hire
Carter, became Carter’s direct supervisor when Wiener was promoted
to Chief Operating Officer (“COO”) shortly after Carter was hired.
Wiener was based in New York but, according to Plaintiff, traveled
to Georgetown on a monthly basis.
TAI contends that Carter was a
organization, lacked certain leadership qualities and failed to
Objective analysis, such as a 360 degree assessment of leadership
indicated that Carter lacked “strategy integration with visioning,
strategic thinking, and managing change.” TAI reports that, during
Carter’s employment, TAI grew and the goals and objectives for
Carter’s position changed, as well.
There was no single incident
or failure by Carter that led to his termination.
contends, it was Carter’s lack of leadership skills that led to his
According to TAI, by the end of his tenure, both
Carter’s supervisors and his subordinates were unhappy with his
While Carter recalls that, over the years, Wiener evaluated
testified that he had given Carter “midline” ratings.
argues that his regular salary increases, while under Wiener’s
supervision, objectively demonstrate that Wiener was evaluating his
job performance favorably.
In 2007, TAI arranged for Carter to
undergo an evaluation and coaching program to address performance
deficiencies with an external consultant, Lisa Morgan with Right
Management Consultants. Carter contends, and TAI does not dispute,
that this program was not punitive in nature.
Rather, it was
viewed as an investment that TAI made in certain employees, many of
whom were eventually promoted.
Defendant maintains, however, that
significant performance deficiencies – not simply to make a good
employee better, as Plaintiff contends.
During the coaching process, Wiener identified communication
and vision as areas in which Carter needed to improve.
coaching program was designed to last approximately six months and
consisted of an assessment and development phase.
evaluations administered by Ms. Morgan, Carter was to focus on
improving in areas of inspirational leadership, managing change,
and developing a strategy for the IT Department.
It is undisputed
that Carter was engaged in the coaching process and that he made
progress during the program.
While Plaintiff and Morgan were
working together, however, several problems with communication,
execution, and organization emerged that required more immediate
The initial goals, therefore, were abandoned so that
Ms. Morgan could begin working with Carter on these more pressing
Carter admitted that he recognized his need to improve in
these specific skills. The coaching process ultimately provided
Carter with limited improvement.
In further support of its
position, TAI notes that in 2007, it used an outside consulting
company to administer and compile the results of a Viewpoint
Employee Opinion Survey.
Fewer of the employees working under
Carter’s supervision responded favorably to the following question
than employees with other supervisors –
“How satisfied are you
contends, made only made small, ineffective changes in response to
the relatively negative review.
The parties do not reveal whether
any other such surveys were conducted during Carter’s employment.
President/General Manager of Manufacturing and Business Support
Services, became Vice President of Internal Audit and Consulting.
In his new position, Keiser was responsible for evaluating and
improving the effectiveness of TAI’s risk management, control and
controlling external consulting engagements.
In late 2007, after
Keiser was in his new position for several months, the reporting
structure for IT was modified so that the IT Department reported
through Keiser to Wiener.
Keiser’s title also changed to Vice
President/General Manager of Management Systems, Internal Audit and
Thus, Keiser became Carter’s immediate supervisor in
This meant that Carter’s direct supervisor was now
based in Georgetown, as opposed to Wiener, who spent most of his
time in New York.
Whereas Wiener’s supervision of Carter largely
took place from a distance, Keiser had the opportunity to observe
Carter’s performance on a daily basis and to communicate with
Carter and his subordinates personally.
It is to this position – Vice President/General Manager of
Management Systems, Internal Audit and Consulting – that Carter
argues he should have been promoted.
TAI argues, however, that
TAI also points out, and Carter admits, that an
external audit of the IT department was his only exposure to an
audit, and that he did not have any formal training or background
in audit or internal control processes.
Keiser’s first review of Carter’s performance was in February,
Keiser originally gave Carter an overall rating of
“B”, or “Below Expectations,” meaning that Carter “meets some, but
not all, expectations or acceptable levels.
Performance is below
that of peers. . .[and] fall[s] short of expectations set in plan.”
Apparently, Keiser and Wiener discussed the evaluation before it
was finalized, at which point, Wiener testified, he did not believe
that the evaluation merited a “B” rating.
increased the overall rating to “M—“, indicating a rating below “M”
which is “meets expectations.”
Many of the same recurring skills
were identified for improvement, such as initiative and acceptance
Also, Keiser noted that Carter needed to work
on being proactive with respect to IT strategy and organization,
and that he needed to set a better tone for the department.
and Keiser met to discuss the evaluation and Carter’s written
comments were included in the final report.
While Carter argues that the alleged reasons for which he was
fired are all subjective, none of TAI’s offered subjective reasons
explicitly relate to race or age. Plaintiff admits that neither
Wiener nor Keiser, nor any one else at TAI, ever made any comments
recommended the termination in the fall of 2008, which was approved
by Wiener, and then carried out on January, 2009 on Carter’s
He was replaced by David Curley, a forty-
eight year old Caucasian male.
APPLICABLE STANDARD OF REVIEW
The standard for summary judgment mirrors the standard for
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A grant of summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, 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 judgment as a matter of law.”
Fed. R. Civ. P.
The moving party bears the initial burden to show the absence
of a genuine issue of material fact.
U.S. 317, 323 (1986).
Celotex Corp. v. Catrett, 477
This burden is met simply by showing the
court that there is an absence of evidence on a material fact on
which the nonmoving party has the ultimate burden of proof at
Id. at 325.
The burden then shifts to the nonmoving party
to “come forward with some probative evidence to support its
Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.
A material fact is one that may affect the outcome of the
issue at trial, as determined by substantive law.
See Niemi v. NHK
Spring Co., Ltd., 543 F.3d 294, 298 (6th Cir. 2008).
dispute exists on a material fact, and thus summary judgment is
improper, if the evidence shows “that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at
249; Summers v. Leis, 368 F.3d 881, 885 (6th Cir. 2004).
The judge’s function is not to weigh the evidence, but to
decide whether there are genuine issues for trial.
U.S. at 249; Multimedia 2000, Inc. v. Attard, 374 F.3d 377, 380
(6th Cir. 2004).
Although the evidence should be construed in the
light most favorable to the nonmoving party, Anderson, 477 U.S. at
255; Summers, 368 F.3d at 885, the nonmoving party must do more
than demonstrate that there is a “metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
Because Plaintiff fails to raise a genuine issue of
material fact as to whether Defendant’s legitimate, nondiscriminatory reason for terminating his employment was
actually pretext for discrimination based on age and/or
race, Defendant is entitled to summary judgment.
discrimination, his claims must proceed under the inferential test
propounded by the Supreme Court in McDonnell Douglas v. Green, 411
U.S. 792 (1973).
This framework applies not only to claims under
Title VII, but also to claims under the ADEA and the Kentucky Civil
See Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir.
1992); Hamilton v. Gen. Elec. Co., 556 F.3d 428 (6th Cir. 2009).
Under this tripartite test, Plaintiff must – as an initial matter
– establish a prima facie case of discrimination by demonstrating
(1) he is a member of a protected class; (2) that he
suffered an adverse employment action; (3) that he was qualified
for the position he held; and (4) that he was replaced by someone
from outside the protected class (or someone substantially younger,
differently than similarly -situated, non-protected employees. See
Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006);
Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th Cir. 1998).
discrimination, the burden then shifts to the employer to produce
a legitimate, non-discriminatory reason for the adverse employment
McDonnell Douglas, 411 U.S. at 802-03.
If the employer
does so, the burden shifts back to the plaintiff to establish that
the proffered reason is actually a pretext for discrimination. Id.
This can be accomplished by demonstrating that the
proffered reason had no basis in fact, did not actually motivate
the decision, or was insufficient to motivate the decision. Manzer
v. Diamond Shamrock Chems., 29 F.3d 1078, 1084 (6th Cir. 1994).
While it is undisputed that Plaintiff has satisfied the first
two prongs of his prima facie case, Defendant contends that Carter
was not qualified for his position because he was not meeting TAI’s
legitimate expectations and, with respect to his age discrimination
claim, that he was not replaced by someone substantially younger.
As for whether Carter was qualified, the Court is cognizant that,
for purposes of analyzing whether Plaintiff has established a prima
facie case, Defendant’s alleged nondiscriminatory reason (here,
poor performance) may not be considered.
Wexler v. White’s Fine
Furniture, 317 F.3d 564, 574-75 (6th Cir. 2003).
respect to the prima facie case of age discrimination, it is
undisputed that fifty-seven year old Carter was replaced by a
forty-eight year old individual.
The parties disagree as to
replacement “substantially younger” than him.
“Age differences of
ten years or more have generally been held to be sufficiently
substantial to meet the requirement of the fourth part of age
discrimination prima facie case.”
Grosjean v. First Energy Corp.,
349 F.3d 332, 336 (6th Cir. 2003).
The Grosjean Court recognized,
however, that in a handful of cases, age differences of eight or
nine years have been sufficient to render a replacement employee
See id. at
339 (citing Cicero v. Borg-
Warner Auto., 280 F.3d 579, 588 (6th Cir. 2002)(whether forty-three
year old was substantially younger than fifty-one year old was
question for jury); Tarshis v. Riese Org., 211 F.3d 30, 38 (2d Cir.
2000)(replacement of sixty-seven year old with fifty-nine year old
sufficient); Fisher v. Vassar Coll., 70 F.3d 1420, 1450-51 (2d Cir.
substantially younger than fifty-three year old)).
Assuming, arguendo, that Plaintiff is able to establish a
prima facie case of discrimination based on race or age, Defendant
terminating his employment. Specifically, Defendant cites numerous
Although the parties dispute the reason for the
initiation of the 2007 “coaching program,” Defendant has provided
other proof indicating that Plaintiff had performance deficiencies,
which reasonably could have resulted in his termination.
including the results of the 360 Degree Feedback Evaluation and the
2007 Viewpoint Employee Opinion Survey.
concedes that his coaching program was overhauled, early on, to
remedy immediate deficiencies in his performance as AVP of IT.
Further, Plaintiff acknowledged that much of Wiener’s criticism of
his job performance was not unfair.
In fact, Plaintiff does not
directly dispute many of Keiser’s criticisms of him, either.
Rather, he characterizes them as vague and subjective, and argues
that Keiser focused on the negatives and did not give him due
credit for his achievements.
Plaintiff has failed to offer sufficient evidence to rebut
Defendant’s legitimate non-discriminatory reason for terminating
his employment and, thus, has not created a genuine issue for
He does not argue that Defendant’s proffered reason has no
basis in fact, nor does he provide evidence to demonstrate that the
proffered reason was insufficient to motivate his termination. See
Manzer, 29 F.3d at 1084 (typically, proof that other employees
engaged in substantially similar conduct as plaintiff without
facing adverse employment action).
Rather, Plaintiff attempts to
demonstrate that the proffered reason was not the actual reason for
For his claims to survive Defendant’s motion for
summary judgment, Plaintiff is required to provide some proof
suggesting that, not only is Defendant’s proffered reason not the
real reason Plaintiff was fired, but that the actual reason was
discrimination. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796,
804-05 (6th Cir. 1994). “[E]stablishing that the employer’s reason
was a pretext requires that a plaintiff do more than simply impugn
the legitimacy of the asserted justification; in addition, the
discriminatory animus . . .”
Id. (emphasis added)(citing St.
Mary’s Honor Center v. Hicks, 509 U.S. 502, 513-15 (1993)).
other words, “[A] reason cannot be proved to be a pretext for
discrimination unless it is shown both that the reason was false,
and that discrimination was the real reason.”
St. Mary’s Honor
Center, 509 U.S. at 515 (internal quotation marks omitted)(emphasis
Plaintiff concedes that he is aware of no race or age-related
comments made by anyone at TAI.
Further, Plaintiff provides no
evidence to suggest that he was treated less favorably than other
similarly-situated employees or that other members of the protected
classes faced discrimination at the hands of Defendant.
Plaintiff relies upon his unsubstantiated subjective beliefs.
example, when asked why he thought Keiser’s criticism of his
performance was based on race, Plaintiff responded, “I don’t think
he was after anybody else.”
When asked why he thought Keiser was
biased against him because of his age, Plaintiff stated, “I think
he was looking for a person that was younger to fill my slot. . .
. [B]ecause of his attitudes toward me. . . [h]is hostility, his
unreasonableness, treating me in a very demeaning and degrading
recognizing the things that I have done.” Viewing these statements
in a light most favorable to Plaintiff, one could infer that Keiser
disliked Plaintiff or, perhaps, treated him in a less than cordial
manner. Conclusory allegations of discrimination are insufficient,
however, to sustain a claim under Title VII.
See Allen v. Mich.
Dep’t of Corrections, 165 F.3d 405, 415 (6th Cir. 1999). Plaintiff
has presented no evidence, aside from the facts purported to
establish his prima facie case, which suggests that discrimination
based on race or age was at play during his employment at TAI or in
the circumstances surrounding his termination. See Cicero v. BorgWarner Auto., Inc.,
280 F.3d 579, 589 (6th Cir. 2002)(Where
plaintiff attempts to demonstrate that proffered reasons did not
actually motivate discharge, plaintiff “may not simply rely on his
prima facie evidence.”)
Plaintiff attempts to cast doubt on Defendant’s proffered
reason for firing him by demonstrating that he has had a lengthy
and successful career in IT and that Defendant had been satisfied
with his performance for years prior to his termination.1
because Defendant had, at one time, been satisfied with Plaintiff’s
performance, however, does not compel the conclusion that his work
performance continued to meet Defendant’s legitimate expectations.
See Strickland v. Fed. Express Corp., 45 F. App’x 421, 424 (6th
Cir. 2002)(unpublished opinion)(noting that prior satisfactory
performance reviews may suffer from staleness – the employee’s
performance may change and/or the employer’s expectations may
Aside from the fact that TAI had grown and its IT needs
had expanded, the Court notes what it finds to be a logical
explanation for Plaintiff’s feeling that Keiser, as opposed to Mr.
Wiener, was especially critical of Plaintiff’s work performance.
Plaintiff urges the Court to make an adverse inference from
what it alleges is Defendant’s spoliation of Carter’s previous
favorable performance reviews, rendered by Mr. Wiener. The Court
notes that, even if favorable written reviews are presumed to
exist, for the reasons described above, the Court’s resolution of
this issue does not change.
Management Systems, Internal Audit and Consulting, Plaintiff’s
direct supervisor was located in New York while Plaintiff was
working in Georgetown, Kentucky.
Although Plaintiff saw Wiener
occasionally, the interaction between the two men was limited and
was mainly through email and telephone calls.
from the company’s Georgetown location made it impossible for him
to monitor Plaintiff’s day-to-day performance to the same degree as
Keiser, once he became Plaintiff’s supervisor.
Plaintiff asks the
Court to second guess Defendant’s employment decision – not because
he offers admissible evidence which indicates that he was fired
because of his race or his age – but because he feels that he was
emphasized that the court’s “role is to prevent unlawful hiring
practices, not to act as a super personnel department that second
guesses employers’ business judgments.” Hedrick v. Western Reserve
Care Sys., 355 F.3d 444, 462 (6th Cir. 2004)(internal quotation
Further, employers are entitled to increased
management-level employees such as Carter and Keiser.
See Wren v.
Gould, 808 F.2d 493, 502 (6th Cir. 1987). Accordingly, Defendant’s
motion for summary judgment, with respect to Plaintiff’s unlawful
termination claims, will be granted.
Because Plaintiff fails to raise a genuine issue of
material fact as to whether Defendant failed to promote
him based on his race, summary judgment for Defendant is
proper with respect to Plaintiff’s failure-to-promote
Failure-to-promote claims are also analyzed under the familiar
burden-shifting framework of McDonnell Douglas.2
See Nguyen v.
City of Cleveland, 229 F.3d 559, 562-63 (6th Cir. 2000)(citing
McDonnell Douglas, 411 U.S. at 802-03). To establish a prima facie
case of discrimination based upon a failure to promote, Plaintiff
must show that:
(1) he is a member of a protected class; (2) he applied
for and was qualified for a promotion; (3) he was
considered for and denied the promotion; and (4) other
employees of similar qualification who were not members
of the protected class received promotions at the time
the plaintiff’s request for promotion was denied.
Defendant contends that Plaintiff cannot make out a prima
facie case because no open position existed and, even if the
position were open, Plaintiff was not qualified for it.
undisputed that the position of Vice President/General Manager of
Management Systems, Internal Audit and Consulting was not posted.
Assuming, arguendo, as Plaintiff contends, that he is not required
Defendant’s failure to promote him, his claim ultimately fails.
Although Plaintiff asserts his failure-to-promote claim via
the KCRA only, the same analysis applies as if it were brought
under Title VII or the ADEA. See Johnson v. Box USA Group, Inc.,
208 F. Supp. 2d 737, 740-41 (W.D. Ky. 2002).
Defendant has proffered several legitimate, non-discriminatory
reasons for its failure to promote Plaintiff to the position of
Vice President/General Manager of Management Systems, Internal
Audit and Consulting.
First, Defendant has demonstrated, and
Plaintiff has failed to rebut, that this was not an open position.
Rather, Keiser, who was already a vice president, assumed expanded
duties and his title was modified to reflect the changes. Although
Keiser did receive a pay raise for his expanded position, he
retained all of the same duties that he had under his previous
suggestion that a vacant vice president position arose as the
result of Keiser’s taking on the new position.
Plaintiff testified that he believed that he could do the job, the
experience with the auditing aspect of the position.
the other hand, was experienced in both auditing and IT work.
As with his wrongful termination claims, Plaintiff has offered
discriminatory reasons, other than his own subjective beliefs as to
why he was not given the position. Plaintiff’s own unsubstantiated
claims are insufficient to sustain his burden to avoid summary
judgment for Defendant.
See Mitchell v. Toledo Hosp., 964 F.2d
577, 585 (6th Cir. 1992)(“[C]onclusory allegations and subjective
beliefs are wholly insufficient evidence to establish a claim of
discrimination as a matter of law.”).
motion for summary judgment, with respect to Plaintiff’s failureto-promote claim, will be granted.
IT IS ORDERED that, for the foregoing reasons, Defendant’s
motion for summary judgment, [DE 34], is hereby GRANTED.
This the 9th day of March, 2012.
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