Strange v. Stryker Corporation
Filing
31
MEMORANDUM OPINION & ORDER: 1. Defendant's Motion to Strike, 24 , is GRANTED,and DE 21 and [21-1] SHALL be stricken from the record; and 2. that Dft's Motion for Summary Judgment, 17 , is GRANTED. Signed by Judge Joseph M. Hood on 06/01/2015.(LC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DAVID J. STRANGE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
STRYKER SALES CORPORATION,
Defendant.
Civil Case No.
5:14-cv-60-JMH
MEMORANDUM OPINION & ORDER
***
This
Sales
matter
is
before
the
Corporation’s
Motion
for
Court
upon
Summary
Defendant
Judgment.
Stryker
[DE
17].
Plaintiff David J. Strange has filed a response, [DE 19], and
Defendant has filed a reply. [DE 22]. In addition, Defendant
Stryker has filed a Motion to Strike Exhibit 17 of Plaintiff’s
Response, [DE 24], to which Plaintiff has responded, [DE 25],
and Defendant has replied. [DE 26]. The Court being otherwise
sufficiently advised, the matter is now ripe for the Court’s
review.
I. Background
Plaintiff
David
J.
Strange
began
his
employment
with
Defendant Stryker Sales Corporation on November 17, 2008. By
March, 2013, Plaintiff had relocated at Defendant’s request from
Tennessee
to
Kentucky
and
had
been
promoted
three
times,
ultimately to the position of Senior Field Service Technician in
the East Region. [DE 18 at ¶ 1-7]. For the majority of his time
at Stryker, Strange was directly supervised by Bryan Vaughn, and
Vaughn was supervised by Amanda White, the Regional Integration
Services Manager. [DE 18 at ¶ 9-10].
Strange’s claims against Defendant are based primarily on
four incidents, the first of which took place in October, 2012.
Strange, Vaughn, and one of Strange’s co-workers, Charles Dabit,
participated
in
a
conference
call
regarding
Dabit’s
recent
problems at work. At some point during this call Dabit said:
“I’m not going to be doing this (the job of a Field Service
Technician) when I’m Dave’s age. He’s too old to be doing this
job.”
[Strange
Deposition
Transcript,
DE
17-3
at
9;
Vaughn
Deposition Transcript, DE 17-7 at 9; DE 18 at ¶ 13]. White avers
that
she
later
spoke
to
Dabit
about
the
impropriety
of
his
comment. [DE 18 at ¶ 13]. Plaintiff does not agree or disagree
that this occurred; simply stating that he has no knowledge of
the fact. [DE 19-2 at ¶ 13].
In April or May of 2013, Strange informed Vaughn and White
that he was having issues with bruising on the backs of his
legs. The parties do not dispute that Strange did not receive
medical
treatment
other
than
his
doctor’s
recommendation
for
occasional exercise. Strange also did not ask for nor require an
accommodation for the bruising, other than to ask Vaughn to
2
cover some service in Ohio to avoid long drives, which Vaughn
did. [DE 18 at ¶ 15-18].
On June 3, 2013, Plaintiff participated in a conference
call with Vaughn and other Field Service Technicians. White was
on
the
call
but
did
not
announce
herself.
During
the
call,
Plaintiff called a particular piece of equipment a “piece of
shit” and used the word “retarded.”1 [DE 18 at ¶ 20; DE 19-2 at ¶
20].
White
later
emailed
Vaughn
about
these
comments
and
instructed him to give Strange a verbal warning with a written
follow-up. Strange apologized to the team during the next call a
week later. [DE 18 at ¶ 21-22].
Around this time, in June 2013, White and Vaughn initiated
discussions with Strange about whether he might be willing to
move to Ohio. [Plaintiff’s Depo, DE 17-3 at 64]. On June 19,
2013, Amanda White received an email from a Stryker salesperson
complimenting Strange’s good work in Kentucky and stating that
Strange’s time spent in Ohio, rather than in Kentucky, was not
good
for
business.
[DE
17-3
at
36].
White
emailed
Strange,
stating “please stop petitioning your sales partners to send me
these types of emails” and “it’s also clear that you have shared
an inappropriate amount of detail with them.” Finally, White
1
The parties dispute the precise details as to the context in which this word
was uttered or characterized, but all agree that it was used. [DE 19-2 at ¶
20; DE 20-6 at 1; 23-1 at 3, ¶ 8]
3
advised, “If you do not want to move to Ohio, please just tell
me or Bryan [Vaughn].” [DE 17-8 at 35].
In
response,
Plaintiff
asked
that
the
Human
Resources
Department be involved. [DE 17-8 at 35]. The Director of Human
Resources
initiated
an
investigation
the
next
day,
June
20,
2013, based on Plaintiff’s complaints that people were not being
held to the same standards for the same issues and that he was
being treated differently because of his age and after he had
notified his supervisors of the bruising on his legs. [DE 17-6
at 3; DE 17-8 at 41]. The Director concluded the investigation
on July 11, 2013, finding that the issues that Plaintiff was
concerned about had been handled appropriately but that there
were
some
things
that
his
supervisors
could
have
done
differently. [DE 18 at ¶ 23; 17-8, 41-56].
Also in the summer of 2013, Stryker’s National Integrations
Services Manager, Sujal Patel, conducted a study on the amount
of work completed by Field Service Technicians in each region
“in
order
to
determine
whether
that
technician
lived
in
a
location most conducive to enhancing productivity and customer
needs.” [DE 17-9 at ¶ 2; DE 18 at ¶ 25-26]. Notably, Plaintiff
does not deny that this study exists, but state that he was not
aware of it. [DE 19-2 at ¶ 25, 26]. Plaintiff was one of two
employees
identified,
having
worked
more
in
Ohio
than
in
Kentucky where he lived. Subsequently, on October 2, 2013, Patel
4
asked Plaintiff to move to Ohio. When he declined, his position
was terminated, effective October 18, 2013. [DE 20-13].
Defendant
avers
that
Plaintiff
was
terminated
because
Defendant made a business decision to eliminate his position and
because he chose not to relocate to Ohio. Strange contends that
his dismissal was because of his age, because he was regarded as
disabled, and as a result of unlawful retaliation for filing the
complaint with HR.
II. Motion to Strike
As an initial matter, Defendant moves to strike Exhibit 17,
[DE 21 and 21-1], attached to Plaintiff’s Response to the Motion
for Summary Judgment. Exhibit 17 is a transcript of a recording
of a telephone call between Sara Briggs, the Director of the
Human Resources Department at Stryker, and the plaintiff on June
24, 2013.
Plaintiff received a request for production after this suit
commenced for “all documents” relating to communications between
Plaintiff and Defendant. However, the discovery deadline set by
this
Court’s
scheduling
order
passed
on
November
28,
2014,
without Plaintiff having alerted Defendant to the existence of
this transcript and recording. [DE 7]. On December 15, 2014,
Plaintiff amended its answers to Defendant’s interrogatories to
notify
them
of
the
existence
transcript. [DE 26-1].
5
of
the
recording
and
the
Plaintiff argues that Exhibit 17 should not be stricken
from the record because the discovery deadline was extended and
because
Plaintiff
existed.”
[DE
extension,
produced
25].
the
First,
Court
the
exhibit
Plaintiff
granted
the
when
is
he
“realized
incorrect
parties’
it
as
to
motion
to
the
hold
a
deposition after the deadline but very clearly did not extend
the deadline for any other reason. [DE 16]. Second, Plaintiff’s
affidavit
attempting
to
authenticate
the
transcript
confirms
that Plaintiff was present for the call, and Plaintiff does not
suggest that he somehow did not know that the call was being
recorded on his end. Thus, it is clear that the Plaintiff knew
of the existence of the recording in June, 2013, and, therefore,
his
failure
to
produce
it
by
November
28,
2014,
cannot
be
excused based on a lack of knowledge of its existence. See Fed.
R. Civ. P. 16(b)(4) (“A schedule may be modified only for good
cause and with the judge’s consent.”).
Moreover, Defendants are prejudiced to some extent, having
learned
of
the
recording
dispositive
motions
were
litigation.
Plaintiff,
on
and
transcript
due
but
the
other
after
hand,
one
month
almost
a
does
not
before
year
of
utilize
Exhibit 17 for any material fact or in support of any argument,
citing to the transcript once in support of a proposition that
is easily established by other documents and undisputed, [DE 19
at 11], and a second time in his statement of material facts,
6
for details that are irrelevant to this Court’s analysis. [DE
19-2 at ¶ 24].
Accordingly,
the
Court
will
grant
Defendant’s
motion
to
strike and not rely upon Exhibit 17, [DE 21 and 21-1], in the
summary judgment determination below.
III. Summary Judgment
A. Standard of Review
A motion for summary judgment may only be granted “if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “On summary judgment the inferences to be
drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.” United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962). “The plain
language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a sufficient showing to establish the
existence of an element essential to that party’s case, and on
which
that
party
will
bear
the
burden
of
proof
at
trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
B. Analysis
1. Disability Discrimination
Plaintiff alleges disability discrimination in violation of
the Kentucky Civil Rights Act, KRS §§ 344.040. The Kentucky
7
Supreme
Court
applicable
has
interpreted
federal
the
Act
anti-discrimination
“consistent
laws”
and
with
the
applies
the
familiar McDonnell Douglas burden-shifting test in cases such as
this,
in
evidence
which
of
the
plaintiff
discrimination.
has
See
failed
Williams
to
v.
provide
Wal-Mart
direct
Stores,
Inc., 184 S.W.3d 492, 495 (Ky. 2005); McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–04 (1973).
Under
establish
the
a
burden-shifting
prima
facie
framework,
case
of
the
plaintiff
discrimination.
must
McDonnell
Douglas, 411 U.S. at 802. If he is successful, the burden then
shifts
to
the
defendant
to
articulate
a
legitimate,
non-
discriminatory explanation for its employment decision. Id. Once
the defendant offers its explanation, the burden shifts back to
Plaintiff
to
show
that
the
defendant’s
explanation
was
mere
pretext for discrimination. Id. at 804.
Here, Defendant argues that Plaintiff cannot establish a
prima
facie
case
of
disability
discrimination.
To
do
so,
Plaintiff must show “(1) that he had a disability ...(2) that he
was ‘otherwise qualified’ to perform the requirements of the
job, with or without reasonable accommodation; and (3) that he
suffered
an
adverse
employment
decision....”
Hallahan
v.
The
Courier-Journal, 138 S.W.3d 699, 706-07 (Ky. Ct. App. 2004).
Defendant
contends
that
Plaintiff
cannot
establish
the
third prong because the two verbal reprimands he received after
8
he
informed
Defendant
of
the
bruising
on
his
leg
do
not
constitute adverse employment actions. See Zanders v. Potter,
223 F. App'x 470 (6th Cir. 2007) (affirming summary judgment and
concluding
written
warning
placed
in
employee
file
did
not
constitute an adverse employment action). However, Plaintiff’s
termination constitutes an adverse employment action. Defendant
suggests that Plaintiff was not terminated because he “chose not
to relocate to Ohio, a choice that subjected him to a reduction
in force.” [DE 17-1 at 23]. Viewing the record in the light most
favorable to the Plaintiff, however, it indicates that he would
not
have
left
Stryker
if
not
asked
to
move
and,
thus,
his
leaving was not voluntary and he suffered a material change in
circumstances as a result. His termination, even as part of
Defendant’s
reduction
in
force,
thus
constitutes
an
adverse
employment action. See Johnson v. Franklin Farmers Co-op., 378
F. App'x 505, 508-09 (6th Cir. 2010). Defendant does not dispute
that Plaintiff was qualified for the position, leaving the first
prong of Plaintiff’s prima facie case.
Defendant argues that Plaintiff cannot prove that he is
“disabled” under the first prong. There are three avenues by
which a plaintiff may do so. KRS § 344.010(4). Plaintiff seeks
to show he is disabled using the third avenue only, by showing
he was “regarded as” disabled by his employer. Id.; [DE 19 at 7,
n.1].
9
At
the
outset,
Plaintiff
urges
the
Court
to
take
into
account the recent amendments to the ADA under the Americans
with Disabilities Act Amendment Act, which broadened the scope
of
what
is
considered
“regarded
as”
disabled.
Milholland
v.
Sumner County Bd. of Educ., 569 F.3d 562, 567 (6th Cir. 2009).
The events in this case took place after the amendments took
effect in 2009, See Milholland 569 F.3d at 567, and Kentucky
courts regularly look to federal case law interpreting the ADA
when analyzing disability discrimination claims under the KCRA.
See Hallahan, 138 S.W.3d at 705. However, Kentucky courts have
not yet addressed how the amendments to the ADA affect a KCRA
disability
discrimination
analysis,
nor
has
the
Kentucky
legislature amended the KCRA as Congress did to broaden the
scope of what is meant by “regarded as.” Notably, if Plaintiff
sought the expanded protection under the amended ADA, he could
have brought a claim under that statute. Accordingly, the Court
will construe Plaintiff’s state law claim based on the analysis
used by Kentucky courts, which look to the approach taken by
federal courts before the ADA amendments took effect.
In order to show he was “regarded as” disabled, Plaintiff
must show that Defendant “mistakenly believes that [Plaintiff]
has a physical impairment that substantially limits one or more
major life activities, or (2) ... mistakenly believes that an
actual, non-limiting impairment substantially limits one or more
10
major life activities.” Hallahan, 138 S.W.3d at 707. Although
Plaintiff states that Defendant perceived him as disabled in
certain life activities, he does not identify any fact from
which the Court could infer such a conclusion. Indeed, on the
record before the Court, there is no evidence indicating that
Defendant
was
concerned
Defendant
did
not
about
change
Plaintiff’s
Plaintiff’s
bruising,
responsibilities
and
or
workload, did not deny him a promotion or position shift. In
sum, there are no facts from which the Court could infer that
Defendant perceived Plaintiff as substantially limited. Compare
Hallahan,
138
S.W.3d
at
707-13
(concluding
the
plaintiff
presented insufficient evidence to support a “regarded as” claim
because he could not show employer believed him precluded from a
broad class of jobs); with Ross v. Campbell Soup Co., 237 F.3d
701, 707 (6th Cir. 2001) (finding Plaintiff could show he was
“regarded as” disabled where memo identified him as a “problem
person” because of a back problem and considered terminating
him).
Decidedly,
the
Sixth
Circuit
has
discussed
the
unique
challenge of proving a “regarded as” claim, noting that such a
determination
is
rarely
appropriate
at
the
summary
judgment
stage. Ross, 237 F.3d at 706-08. Here, however, even assuming
Plaintiff could prove a prima facie case, he could not sustain
his burden at the pretext stage.
11
Defendant
reason
that
offers
it
as
conducted
its
legitimate
an
analysis
non-discriminatory
that
identified
two
employees across the company who were working more outside the
state
in
which
they
lived,
which
was
generating
higher
and
unnecessary expense. For business reasons, therefore, Defendant
avers
that
it
asked
both
employees,
one
of
whom
was
the
plaintiff, to move or be subject to a reduction in force. [DE
17-9].
Importantly,
Plaintiff
appears
to
disagree
with
the
existence of this study, but only states that he was not aware
of it. However, Plaintiff cites to no part of the record in
support nor does he attempt to show how Patel’s affidavit, which
supports this claim, presents a genuine dispute as to this fact.
See Fed. R. Civ. P. 56(a). The Court finds that Plaintiff has
not raised a genuine dispute as to this fact. See Ford v. Gen.
Motors Corp., 305 F.3d 545, 552 (6th Cir. 2002) ([T]he nonmoving party may not rest upon its mere allegations ... but ...
must set forth specific facts showing that there is a genuine
issue for trial.”)(citation and quotation omitted). Defendant
has satisfied its burden to show a legitimate non-discriminatory
reasons
for
Plaintiff’s
termination.
See
Reeves
v.
Sanderson
Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (“The burden
is
one
of
production,
not
persuasion;
it
credibility assessment.’”) (citation omitted).
12
‘can
involve
no
The burden shifts to Plaintiff “to demonstrate at least a
genuine
dispute
of
fact
over
whether
[Defendant’s]
proffered
explanations for its adverse employment decision were pretexts.”
Wheat v. Fifth Third Bank, No. 13-4199, 2015 WL 2116129, at *9
(6th Cir. May 7, 2015). Plaintiff argues that Defendant’s reason
is pretext because Plaintiff was given a little less than fortyeight hours to decide whether he would be willing to relocate or
be terminated. This, Plaintiff argues, shows that the move was
presented in a manner that assured Plaintiff would not accept
it. The parties actually dispute how long Plaintiff was given to
decide; Defendant argues that Plaintiff was given up to five
days. [DE 19 at 9; 17-9 at ¶ 9].
Regardless, even assuming Patel only gave Plaintiff fortyeight
hours
proferred
to
decide,
reason.
This
this
is
does
because
not
overcome
Plaintiff
Defendant’s
ignores
the
undisputed fact that his supervisors suggested the move to Ohio
as early as June, 2013. [DE 17-3 at 64-65]. The record also
includes
emails
from
Plaintiff’s
supervisor
in
June,
complementing his good work and expressing that she hoped he
would continue his employ with Stryker in Ohio, and that his
work would be valued there. [DE 17-8 at 22-24]. Having at least
been aware of a potential move to Ohio since June, this weighs
against Plaintiff’s argument that Patel’s deadline essentially
caught him by surprise. Furthermore, this evidence does not show
13
that
Stryker’s
business
concerns
in
saving
costs
did
not
actually motivate its decision to eliminate Plaintiff’s position
in Kentucky.
To show that the work force reduction did not actually
motivate Plaintiff’s termination, as Plaintiff attempts to do
with this argument, Plaintiff must show that “the sheer weight
of the circumstantial evidence of discrimination makes it more
likely than not that the employer's explanation is a pretext, or
coverup.” Allen v. Highlands Hosp. Corp., 545 F.3d 387, 396 (6th
Cir. 2008); see also Green v. Township of Addison, No. 14-1607
(6th Cir. May 15, 2015). Plaintiff has not done so here and,
accordingly,
his
disability
discrimination
claim
must
fail.
Defendants are thus entitled to summary judgment on this claim.
2. Retaliation
Plaintiff alleges that he was retaliated against when he
complained to Stryker’s Human Resources Department, a violation
of the Kentucky Civil Rights Act. KRS § 344.280. As a claim
under
the
KCRA,
Kentucky
courts
approach
retaliation
in
a
similar manner to a disability discrimination claim, discussed
above, looking to federal courts analyzing retaliation claims
and utilizing the McDonnell Douglas burden-shifting test. See
Williams, 184 S.W.3d at 495.
Defendant first argues that Plaintiff cannot establish a
prima facie case of retaliation. When based on circumstantial
14
evidence, as Plaintiff’s retaliation claim is here, a plaintiff
must show that (1) he engaged in a protected activity, (2) his
employer knew that he had engaged in said activity, (3) after
the protected activity, his employer took an employment action
adverse to the plaintiff, and (4) there was a causal connection
between
the
protected
activity
and
the
adverse
employment
action. Brooks v. Lexington-Fayette Urban Cnty. Hous. Auth., 132
S.W.3d 790, 803 (Ky. 2004).
Defendant attacks Plaintiff’s ability to prove an adverse
action first. Plaintiff responds that there were two adverse
actions: the June 19, 2013, email from Amanda White (in which
White accused Plaintiff of soliciting comments to encourage his
stay in Kentucky), and his termination. While the email, which
appears to have been the impetus for Plaintiff’s complaint and
was
sent
before
it,
cannot
suffice
as
an
adverse
action,
Plaintiff’s termination does. See supra, Part III.A. The Court,
thus, finds that Plaintiff can establish the third prong and
Defendant does not dispute the first and second. This leaves the
fourth prong in dispute, as to whether Plaintiff has established
a
causal
connection
between
his
complaint
to
HR
and
his
termination.
In support of a causal connection, Plaintiff notes that
only four months elapsed between his filing of this complaint
with
HR
and
his
termination.
However,
15
while
close
temporal
proximity can, on its own, establish a causal connection, this
is appropriate when the adverse action occurred only days or
several
weeks
after
the
protected
activity.
See
Mickey
v.
Zeidler Tool & Die Co., 516 F.3d 516, 523-26 (6th Cir. 2008)
(collecting cases). Here, where four months elapsed, Plaintiff
must
provide
connection.
additional
Thus,
evidence
Plaintiff
to
also
establish
contends
a
that
causal
a
causal
connection is shown by the fact that the manager who actually
terminated
Plaintiff’s
employment,
Sujal
Patel,
was
Amanda
White’s boss. White was, of course, Plaintiff’s supervisor and
was closely involved in his complaint to HR.
This argument
supports the second prong as to Defendant’s knowledge of the
complaint, but is unpersuasive in establishing an inference that
Plaintiff’s
termination
was
motivated
by
the
HR
complaint.
Accordingly, Plaintiff cannot meet his burden at the prima facie
stage
and
Defendants
are
entitled
to
summary
judgment
on
Plaintiff’s retaliation claim.
3. Age Discrimination
Plaintiff’s Complaint also asserts age discrimination in
violation of KRS § 344.040. Plaintiff has failed to respond to
Defendant’s
motion
for
summary
judgment
on
this
claim.
Regardless, the fact that Plaintiff has failed to respond does
not change the fact that Defendant bears the initial burden on
summary judgment. Fed. R. Civ. P. 56(a); Delphi Auto. Sys., LLC
16
v. United Plastics, Inc., 418 F. App'x 374, 380 (6th Cir. 2011)
(citing Carver v. Bunch, 946 F.2d 451, 454–55 (6th Cir. 1991)).
“The court is required, at a minimum, to examine the movant's
motion for summary judgment to ensure that he has discharged
that burden.” Delphi, 418 F. App'x at 380.
Where,
evidence
of
as
here,
age
the
plaintiff
discrimination,
fails
the
to
Court
present
analyzes
direct
an
age
discrimination claim using the McDonnell Douglas burden-shifting
framework discussed above. Williams, 184 S.W.3d at 495. For his
prima facie case, a plaintiff must establish 1) that he is 40
years or older; 2) that he was subject to an adverse employment
action; 3) that he was qualified for the position; 4) that he
was replaced by someone outside of the protected class. Geiger
v. Tower Auto., 579 F.3d 614, 622-23 (6th Cir. 2009) (internal
citation and quotation omitted); Blizzard v. Marion Technical
Coll.,
698
F.3d
275,
283
(6th
Cir.
2012).
Here,
however,
Defendant contends that this is a work force reduction case,
which modifies Plaintiff’s prima facie burden. The Court agrees
because
the
record
reflects
that
Plaintiff’s
positon
was
eliminated, he was not replaced. See Barnes v. GenCorp Inc., 896
F.2d 1457, 1465 (6th Cir. 1990). According, the fourth element
of the prima facie case is modified to require the plaintiff to
provide
additional
direct,
circumstantial,
or
statistical
evidence tending to indicate that the employer singled out the
17
plaintiff for discharge for impermissible reasons. Geiger, 579
F.3d at 622-23.
Defendant
argues
that
Plaintiff
cannot
establish
this
fourth prong. Defendant repeats its argument that its decision o
terminate
Plaintiff
was
motivated
by
business
concerns,
and
argues that there is no evidence that Plaintiff’s termination
was motivated by his age. The Court agrees that there is no
evidence on the record before it to support an inference that
Plaintiff
was
singled
out
because
of
his
age.
Accordingly,
Defendant is entitled to summary judgment on Plaintiff’s age
discrimination claim.
4. Hostile Work Environment
Plaintiff’s Complaint alleges that “he was exposed to a
pervasive,
because
hostile
he
was
work
environment
regarded
as
because
disabled”
in
of
his
violation
age
and
of
the
Kentucky Civil Rights Act. KRS 344.040; [DE 1]. Again, Defendant
moves for summary judgment on this claim and Plaintiff fails to
respond.
This
does
however,
and
the
not
discharge
Court
will
Defendant’s
examine
initial
burden,
Defendant’s
motion
accordingly. Delphi Auto. Sys., LLC, 418 F. App'x at 380.
As
with
the
other
KCRA
claims,
this
hostile
work
environment claim is analyzed like similar federal claims under
the McDonnell Douglas framework. See Ammerman v. Bd. of Educ.,
of Nicholas Cnty., 30 S.W.3d 793, 797-98 (Ky. 2000). To prove
18
his prima facie case, Plaintiff must demonstrate five elements:
(1) he was a member of the protected class (disabled or 40 years
or older); (2) he was subjected to unwelcome harassment; (3) the
harassment was based on his membership in the protected class;
(4)
“the
harassment
unreasonably
performance;”
and
(5)
known
the
harassment
about
“defendant
interfered
either
and
with
or
to
work
should
knew
his
have
take
failed
corrective
measures.” Spence v. Donahoe, 515 F. App'x 561, 571 (6th Cir.
2013); Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834-35 (6th
Cir. 1996).
Defendant
argues
that
Strange
cannot
sustain
his
prima
facie burden because there are no facts to connect Plaintiff’s
membership in the protected classes with the actions taken by
his
employer
and
because
the
harassment,
if
any,
was
not
sufficiently severe or pervasive so as to alter the conditions
of his employment and create an abusive working environment.
Although
Plaintiff
does
not
respond
or
argue
against
dismissal of this claim, in his statement of facts he notes the
sequence of events that occurred after Dabit’s comment about his
age
in
October,
2012,
and
after
Plaintiff
notified
his
supervisors of the bruising in his legs in April, 2013: he was
reprimanded after using the word “retarded” on a conference call
and for soliciting reviews by salespeople, both in June, 2013,
and eventually terminated in October, 2013. [DE 19-2].
19
First,
the
hostile
work
environment
claim
based
on
disability. Assuming Plaintiff could show that he was disabled
for the first prong, and even if this sequence of events is
enough to infer a causal connection between his disability and
Defendant’s action, this evidence does not show that Plaintiff
was subject to an environment reasonably perceived to be hostile
or abusive as required for the fourth prong of a hostile work
environment claim. See Harris v. Forklift Sys., Inc., 510 U.S.
17, 21-23 (1993) (discussing what constitutes harassment in the
context of a hostile work environment).
Second, and similarly, the hostile work environment claim
based on age. For the third prong, the causal connection between
Dabit’s comment about Plaintiff’s age is even more attenuated.
The comment occurred a whole eight months before any potentially
harassing behavior (the reprimands and the termination) on the
part of the Defendant, and even then, these adverse actions were
taken by Plaintiff’s supervisors, whereas the comment was made
by Plaintiff’s co-worker. Even still, neither Dabit’s one-time
comment, although offensive to Plaintiff, nor the other actions
taken by Defendant beginning in June of 2013 rise to the level
of the type of conduct typically considered by courts to be
harassment
environment
to
satisfy
claim.
Id.
the
at
fourth
21
20
prong
(noting
of
the
a
hostile
work
determination
of
whether
conduct
constitutes
harassment
has
an
objective
and
subjective component).
Accordingly, the Court finds that Defendant has shown that
Plaintiff cannot sustain a prima facie case of a hostile work
environment. Defendant has, thus, sustained it initial burden
and is entitled to summary judgment on this claim.
5. Breach of Contract
Plaintiff’s
contract
with
Complaint
Plaintiff
alleges
when
it
Defendant
refused
to
breached
pay
its
Plaintiff’s
final, company-related expenses. Defendant moved to dismiss this
claim
as
affidavit
a
part
of
attached
its
to
motion
his
for
response,
summary
judgment.
Plaintiff
In
states,
an
“the
dispute concerning Stryker not paying my business expenses has
been
resolved
and
I
no
longer
need
to
pursue
a
breach
of
contract claim.” [DE 19-1 at ¶ 5]. Accordingly, this claim is
dismissed as withdrawn.
6. Intentional Infliction of Emotional Distress
Plaintiff’s
Complaint
alleges
“he
suffered
extreme
emotional distress when Defendant intentionally and maliciously
engaged in extreme and outrageous conduct, including its refusal
to
pay
his
final
expenses
unless
he
signed
a
severance
agreement.” [DE 1]. The Kentucky Civil Rights Act preempts a
common law intentional infliction of emotional distress claim.
Kroger Co. v. Buckley, 113 S.W.3d 644, 647 (Ky. Ct. App. 2003).
21
Thus,
to
the
extent
Plaintiff’s
claim
is
based
on
his
allegations of age and disability discrimination, hostile work
environment, and retaliation under that Act, his IIED claim is
preempted and must be dismissed. To the extent that his IIED
claim is based on the sole remaining claim, his claim for breach
of
contract,
it
will
be
dismissed
because
Plaintiff
has
withdrawn that claim.
IV. Conclusion
For all the reasons set forth above, Plaintiff’s claims
fail as a matter of law and shall be dismissed. Accordingly, IT
IS ORDERED
(1) that Defendant’s Motion to Strike, [DE 24], is GRANTED,
and DE 21 and 21-1 SHALL be stricken from the record; and
(2) that Defendant’s Motion for Summary Judgment, [DE 17],
is GRANTED.
This the 1st day of June, 2015.
22
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