McCartt v. Kellogg USA, Inc. et al

Filing 71

MEMORANDUM OPINION & ORDER: 1) 48 MOTION for Summary Judgment is GRANTED w respect to Pla's claims of retaliation, violation of the FLSA and KY wage/hour statute, and violation of KY public policy (Counts III through VIII). 2) 48 Motion for Summary Judgment is DENIED w respect to the remaining claims (Counts I and II). Signed by Judge Danny C. Reeves on 10/14/2015.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
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JAMES B. MCCARTT,
Plaintiff,
V.
KELLOGG USA, INC., et al.,
Defendants.
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Civil Action No. 5: 14-318-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of Defendants Kellogg USA, Inc.’s and
Kellogg Sales Company’s (jointly, “Kellogg”) motion for summary judgment. [Record No.
48] Plaintiff James B. McCartt asserts claims of age-related discrimination and retaliation in
violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,
and the Kentucky Civil Rights Act (“KCRA”), KRS Chapter 344, et seq. [Record No. 1, pp.
36] He also alleges that he is owed back pay and overtime under the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 201, et seq., and the Kentucky wage statute, KRS § 337.010, et
seq.

[Id., pp. 911]

In addition, McCartt asserts a public policy claim premised on the

alleged ADEA and FLSA violations. [Id., p. 12]
For the reasons outlined below, the Court will grant summary judgment in favor of
Kellogg regarding the plaintiff’s claims of retaliation (Counts III and IV), violation of the
FLSA and Kentucky wage statute (Counts V, VI, and VIII), and public policy violations
(Count VII). However, Kellogg’s motion will be denied with respect to the remaining
ADEA and KCRA claims (Counts I and II).
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I.
As outlined in the opinion addressing the defendants’ in limine motion [Record No.
69], Kellogg USA, Inc. and Keebler Foods Company (“Keebler”) manufacture food
products. [Record No. 48-1, p. 5] McCartt was hired by Keebler in 1979 as a Territory
Manager (“TM”) for the Lexington, Kentucky area. [Record No. 53-2, p. 5] Kellogg
acquired Keebler in 2000. Following that acquisition, McCartt’s title was changed to the
Retail Sales Representative (“RSR”) of District 797, which includes the greater Lexington
area. [Record No. 53-2, p. 7] The RSR position was functionally similar to the TM position,
except for an emphasis on sales starting in April 2011. [Id., pp. 7, 10, 15, 19; Record No. 486, “Job Profile”] RSR duties included: merchandising orders, making incremental sales,
building displays, and managing merchandisers. [Record No. 53-2, pp. 89] The plaintiff
alleges that he worked 95% of weekends, resulting in a work-week of over sixty hours. [Id.,
p. 26] He further claims that he generally did not take meal or rest breaks. [Record No. 1, ¶
68]
RSRs’ direct supervisors were District Managers, whose supervisors, in turn, were
Senior Retail Managers (or Zone Managers).

[Record No. 53-2, pp. 1112]

Managers performed mid-year assessments of the RSRs.

District

[Record No. 53-2, p. 15]

McCartt’s mid-year evaluation in 2012 demonstrated that he was using only 68% of his
variable labor and that he was $19,000 behind budget. [Id., p. 18; Record No. 48-11,
“Performance Development Plan”] McCartt achieved only 91.7% of his sales goals in 2012.
However, in the final month of 2012, he was the highest-ranked RSR in his district. [Record
No. 48-10, “Period 12, 2012 Regional Score Card”]
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In early 2013, Kellogg restructured its sales force, combining its “Morning Foods”
sales force with its “Snacks” sales force. [Record No. 48-12, ¶ 4, “Anderson Decl.”] As a
result, fewer overall RSR roles were available. In January, all the Zone Managers convened
in Chicago to assess the RSR sales force. [Id., ¶ 5] However, they were not told the reasons
for the assessment. [Id.] As part of this process, Zone Managers assessed each RSR in his or
her zone according to technical and Kellogg Business Leader Model (“KBLM”)
competencies, giving each a score of one to five. [Id.] The Zone Managers were instructed
to rely on employee “scorecards,” which contained objective figures, as well as their
personal experience with the RSRs. [Record No. 48-14, ¶ 5, “Grzanka Decl.”]
Next, the Human Resources (“HR”) department created pools of RSRs for
comparison purposes. [Record No. 48-12, ¶ 6] Essentially, HR compared all Snacks RSRs
who had over 50% of their assigned stores within 25 miles of a particular Morning Foods
RSR’s residence. [Id.] The RSR with the lowest average score in each pool was displaced.
[Id.] Megan Anderson was the HR person responsible for pooling assessments in the
Cincinnati Zone, which included McCartt. [Id., ¶ 8] Because Grzanka’s assessment of
McCartt was the lowest in his pool, HR decided to terminate him. [Id., ¶ 9]
In February 2013, interim District Manager Andrew Hart and Zone Manager Kevin
Grzanka met with McCartt to inform him that a rumored “list of targeted employees” did not
exist. [Record No. 53-2, p. 20] During that time, McCartt’s prior District Manager, John
Taylor, allegedly informed McCartt of a comment by Grzanka regarding the plaintiff.
[Record No. 53-2, p. 23]

The conversation between Grzanka and Taylor purportedly

occurred during Taylor’s midyear evaluation (summer 2012), after Taylor remarked
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positively on McCartt but stated that he could be more “aggressive” about displays. [Record
No. 53-13, pp. 3637, “Taylor Deposition”] During his deposition, Taylor alleges that
Grzanka responded, “Mr. McCartt is too old and set in his ways to make the changes
necessary. We need to, more or less, move in different directions.” [Id., p. 37] In his
Complaint, the plaintiff alleged that he reported this comment to his superiors prior to his
termination. [Record No. 1, ¶ 34] However, in his deposition, he denies reporting the
comment at any time prior to his termination. [Record No. 53-2, p. 25]
On March 5, 2013, one month after Taylor informed McCartt of the allegedly-biased
statement, Hart and Grzanka informed McCartt of his termination, which was effective April
12, 2013. [Id., p. 22; Record No. 48-17] The plaintiff was over sixty years-old at the time of
his termination. [Record No. 1-6, p. 3, ¶ 9] McCartt believed that his termination was the
result of age discrimination, and he claims that he informed HR of his belief. [Record No. 1,
¶ 34] He further reports that HR then told him that Kellogg would not consider him for
rehire. [Record No. 53, p. 26]
At the time of McCartt’s separation from the company, Kellogg offered him a
severance benefit package in exchange for him signing a release of any claims he might
have. [Record No. 53-2, p. 25] He refused to sign the severance agreement, but Kellogg
began sending him checks. [Id., p. 26] Once McCartt informed Kellogg of the error, the
payments stopped. [Id.]
McCartt claims age-related discrimination and retaliation by Kellogg in violation of
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and the
Kentucky Civil Rights Act (“KCRA”), KRS Chapter 344, et seq. [Record No. 1-6, pp. 39]
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He also alleges that he is owed back pay and overtime under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et seq., and the Kentucky wage statutes, KRS § 337.010, et seq.
[Id., p. 911] In addition, he seeks to pursue public policy claims premised on the alleged
ADEA and FLSA violations. [Id., p. 12]
The defendants sought to exclude the allegedly-biased statement by Grzanka
mentioned above, but the Court denied their motion. [Record No. 69] They have also
moved for summary judgment on the plaintiff’s claims (Counts I through VIII). [Record No.
48]
II.
Summary judgment is appropriate when there are no genuine disputes regarding any
material facts and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Chao v. Hall Holding Co.,
285 F.3d 415, 424 (6th Cir. 2002). A dispute over a material fact is not “genuine” unless a
reasonable jury could return a verdict for the nonmoving party. That is, the determination
must be “whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986); see Harrison v. Ash, 539 F.3d 510, 516
(6th Cir. 2008). In deciding whether to grant summary judgment, the Court views all the
facts and inferences drawn from the evidence in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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III.
A.

ADEA and KCRA Claims

Kellogg has moved for summary judgment on McCartt’s ADEA and KCRA claims,
arguing that he has failed to: (i) present direct evidence of age discrimination; (ii) establish a
prima facie case of age discrimination based on circumstantial evidence; and (iii) establish
that Kellogg’s articulated reason for the termination was a pretext for discrimination.
[Record No. 48-1] Under the ADEA and the KCRA, it is unlawful for an employer “to
discharge any individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s
age.” 29 U.S.C. § 623(a)(1); K.R.S. § 344.040(1) and (2).1
A plaintiff may establish a claim under the ADEA and/or KCRA by offering either
direct or circumstantial evidence of discrimination. Mitchell v. Vanderbilt Univ., 389 F.3d
177, 181 (6th Cir. 2004). “Direct evidence of discrimination is that ‘evidence which, if
believed, requires the conclusion that unlawful discrimination was at least a motivating
factor in the employer’s action.’” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570
(6th Cir. 2003) (quoting Jacklyn v. Schering-Plough Health Care Prods. Sales Corp., 176
F.3d 921, 926 (6th Cir. 1999)). If a plaintiff cannot provide direct evidence of improper
motive, he may offer indirect and circumstantial evidence of such a motive under the burdenshifting approach established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).

1
The Kentucky Civil Rights Act’s discrimination provisions “track [ ] federal law and

should be interpreted consonant with federal interpretation.” Gragg v. Somerset Technical
College, 373 F.3d 763 (6th Cir. 2004) (citing Meyers v. Chapman Printing Co., 840 S.W.2d 814
(Ky. 1992)). Accordingly, the Court will analyze these claims simultaneously.
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1.

Direct Evidence

McCartt argues that he has presented sufficient direct evidence of age animus to
defeat summary judgment. [Record No. 53, p. 17] In particular, he relies upon Zone
Manager Kevin Grzanka’s alleged statement concerning the plaintiff to District Manager
John Taylor at Taylor’s mid-year evaluation in summer 2012. In Taylor’s deposition, he
claims that Grzanka stated, “Mr. McCartt is too old and set in his ways to make the changes
necessary. We need to, more or less, move in different directions.” [Record No. 53-13, p.
37] This was in response to Taylor’s remark that Mr. McCartt needed to be more aggressive
about displays. [Id., pp. 3637] McCartt asserts that, because Grzanka played a role in the
termination decision, his statement constitutes direct evidence of a discriminatory motive.
In general, an employer’s comments referring directly to a plaintiff’s age may support
an inference of age discrimination. Phelps v. Yale Sec., Inc., 986 F.2d 1020 (6th Cir. 1993).
However, the Sixth Circuit has consistently held that age-related statements are inadmissible
if they “are too abstract, in addition to being irrelevant and prejudicial, to support a finding of
age discrimination.” Chappell v. GTE Prods. Corp., 803 F.2d 261, 268 n.2 (6th Cir. 1986)
(statements regarding young people taking over in management and indicating a negative
view of “old-timers” held irrelevant and unduly prejudicial); see also McDonald v. Union
Camp Corp., 898 F.2d 1155, 1161 (6th Cir. 1990). Moreover, the Sixth Circuit has held that
“‘[s]tatements by nondecisionmakers, or statements by decisionmakers unrelated to the
decisional process itself [cannot] suffice to satisfy the plaintiff’s burden . . .’ of
demonstrating animus.” Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998)
(quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)).
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However, the McDonald/Chappell rule was never intended to apply formalistically.
Rather, courts “must consider as probative evidence any statements by those individuals who
are in fact meaningfully involved in the decision to terminate an employee.” Wells v. New
Cherokee Corp., 58 F.3d 233, 238 (6th Cir. 1995) (holding district court did not err in
refusing to give jury instruction that only age-biased statements by primary decision-makers
were probative of animus). Instead, courts assess the relevancy of a discriminatory remark
by looking to: (i) the purpose and content of the statement; (ii) the identity of the speaker and
his role in the adverse employment decision; and (iii) the temporal proximity between the
statement and the adverse employment decision. Ercegovich v. Goodyear Tire & Rubber
Co., 154 F.3d 344, 35557 (6th Cir. 1998) (reversing summary judgment where multiple
higher-level officials made discriminatory remarks).
Kellogg claims that Grzanka’s statement is not direct evidence of discriminatory
animus because it is isolated, ambiguous, and not temporally proximate to McCartt’s
termination. [Record No. 48-1, pp. 1316] In his response, McCartt contends that the
statement constitutes sufficient direct evidence of animus because it is not isolated or
ambiguous. [Record No. 53, pp. 1722]
a.

Purpose and Content

While Grzanka’s statement is isolated,2 it is not ambiguous. Ambiguous statements
are those that either do not suggest discriminatory animus or are not linked to the adverse

2
The plaintiff points to another incident where Grzanka allegedly demonstrated age-bias,

attempting to show that the statement is not isolated. [Record No. 54, p. 2] Taylor states that
during an interview of another potential employee, Grzanka asked the employee his age.
[Record No. 53-13, pp. 5253] The interviewee did not get the position. Because this was only
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employment decision affecting the plaintiff. Ercegovich, 154 F.3d at 355 (the nexus between
the statement and the decision need not be “direct”). For example, in Gagne v. Northwestern
Nat’l Ins. Co., an immediate supervisor’s remark that he needed “younger blood” was not
sufficient to create a material factual issue regarding whether the plaintiff’s discharge was
motivated by age animus because the plaintiff characterized the statement as facetious and
not directed at any particular individual. 881 F.2d 309, 314, 315 (6th Cir. 1989). Similarly,
a supervisor’s comment that he needed a “younger person in Indiana” was ambiguous
because it did not concern the plaintiff. Kahl v. The Mueller Co., No. 98-1176, 173 F.3d
855, 1999 WL 196556, *2, 4 (6th Cir. 1999).
Further, a supervisor’s remark that the plaintiff’s birthday is “cause for concern” is
ambiguous because it does not necessarily suggest animus on the part of the speaker or
concern the plaintiff’s employment. Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1026 (6th Cir.
1993); see also Peters v. Lincoln Elec. Co., 285 F.3d 456, 477 (comment that plaintiff was
“little old gray-haired man waiting to retire” was ambiguous because the plaintiff had
announced his retirement and the comment did not suggest an adverse employment
decision); Scott v. Potter, No. 05-3991, 182 F. App’x 521, 2006 WL 1524742, *5 (6th Cir.
2006) (statement “[w]hy don’t you retire and make everybody happy” did not constitute
direct evidence because “retire” is analogous to “quit,” not necessarily suggesting “age”
animus). Even a supervisor’s comment that a plaintiff with Attention Deficit Disorder was
“the mentally ill guy on Prozac that’s going to shoot the place up” did not constitute direct

a question unrelated to the plaintiff that occurred over a year before the plaintiff’s termination
decision, it is not relevant for determining whether the statement at issue was isolated. See
Wilson v. Reliance Trading Corp. of Am., 208 F.3d 216, 2000 WL 282357, *1 (6th Cir. 2000).
-9 

evidence of discriminatory animus because it did not concern the adverse employment
decision at issue. Hopkins v. Elec. Data Systems Corp., 196 F.3d 655, 658, 66162 (6th Cir.
1999).
On the other hand, a supervisor’s suggestion that the plaintiff should retire because of
her age may constitute “strong evidence of an illegitimate motive.” Danielson v. City of
Lorain, 938 F.2d 681, 684 (6th Cir. 1991) (affirming directed verdict for the employer due to
strong evidence that the plaintiff performed poorly). In addition, a decision-maker’s remarks
that “oldtimers” with “thirty years” out to “get their ass out” strongly suggested age
discrimination. LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 380 (6th Cir. 1993)
(reversing summary judgment for the employer). Further, comments that an employee is
“too old to do the job” or that a “younger person could do more” are clearly direct evidence
of age bias. Wells v. New Cherokee Corp., 58 F.3d 233, 237 (6th Cir. 1995).
Grzanka’s statement is more analogous to the cases finding direct evidence of age
bias. First, the statement clearly suggests a negative view of McCartt’s age, unlike Peters,
where the speaker merely observed the fact that the plaintiff was old and that he had
announced his retirement. 285 F.3d at 477. The present action is also unlike Scott, 2006 WL
1524742, at *5, where the speaker could have merely been suggesting that the plaintiff leave,
rather than suggesting that he leave because of his age, as the speaker did in Danielson. 938
F.2d at 684. Instead, Grzanka’s statement is similar to the supervisor’s statement in Wells,
where the speaker said that the employee was “too old to do the job.” 58 F.3d at 237.
Second, Grzanka’s statement suggests animus because it directly concerns the
plaintiff and the adverse employment decision at issue.
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Taylor alleges that Grzanka

specifically mentioned “Mr. McCartt” in a discussion of the plaintiff’s work skills. [Record
No. 53-13, pp. 3637] This is unlike Gagne and Kahl, where the statements at issue did not
concern the plaintiff. 881 F.2d 309, 314, 315 (6th Cir. 1989); 173 F.3d 855, 1999 WL
196556, at *2, 4 (6th Cir. 1999). Grzanka’s statement is also dissimilar to Peters and
Hopkins, where the speaker never mentioned the possibility of an adverse employment
decision. 285 F.3d at 477; 196 F.3d 655, 658, 66162 (6th Cir. 1999). Here, however,
Grzanka allegedly stated a need to “move in a different direction.” [Record No. 53-13, p. 37]
While Grzanka’s statement is not as blatant as that in LaPointe, where the decisionmaker stated that the employees needed to get out, it sufficiently suggests illegitimate bias to
create an issue of material fact for the jury to decide. 8 F.3d 376, 380 (6th Cir. 1993).
Taylor’s reaction to the remark supports this fact, as he was so “shocked” and “upset” that he
informed co-workers at Kellogg of the interaction. [Record No. 53-13, p. 40] Moreover,
Grzanka’s statement has a closer nexus to an adverse employment decision than the
statement in Wells, where the speaker merely noted that a “younger person could do more”
after remarking on the plaintiff’s being “too old.” 58 F.3d at 237. Here, Grzanka allegedly
stated the need to “move in a different direction,” away from the plaintiff’s “old and set”
ways. [Id., p. 38] Because Grzanka’s remark suggested an impermissible motive, directly
concerned the plaintiff, and related to an adverse employment decision, it is not ambiguous.
Thus, this factor weighs in favor of a finding of sufficient direct evidence.
b.

Speaker’s Role

Kellogg contends that, because Grzanka did not make the ultimate decision to
terminate McCartt, and because he did not know the ultimate purpose of the assessment
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completed for McCartt, his statement cannot be attributed to the plaintiff’s termination.
[Record No. 56, p. 7] Kellogg relies on McDonald v. Union Camp Corp., which held that a
“statement by an intermediate level management official is not indicative of discrimination
when the ultimate decision to discharge is made by an upper level official.” 898 F.2d 1155,
1161 (6th Cir. 1990). However, Wells refines McDonald, holding that “[w]hatever the
formal hierarchy” of the employer might be, the focus of the inquiry is whether the speaker
“contributed significantly” to the decision. 58 F.3d at 238 (finding that speaker contributed
significantly when he worked closely and consulted with the ultimate decision-maker on
personnel decisions).

The Wells court reasoned that this rule keeps companies from

“insulat[ing[ themselves from liability for discriminatory discharges.” Id.
Similarly, in Sharp v. Aker Plant Servs. Grp., the court found that where two upperlevel management officials relied entirely on the speaker’s recommendation of whom to
terminate, the allegedly-biased statement at issue constituted direct evidence of
discriminatory animus. 726 F.3d 789, 797 (6th Cir. 2013). Sharp involved a “forced
ranking” system employed by the defendant for reducing labor. Id. at 794. The court
reasoned that, even though the speaker was not the ultimate decision-maker, the
“discriminatory information flow” began with him and “influenced the decisions made
downstream.” Id. at 797. While the employer contended that it conducted a “multi-step,
independent review of the layoff decisions,” that review was ineffective to purge the bias
because it consisted “simply of comparing information submitted by [the speaker] to other
information submitted by [the speaker].” Id.

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However, the speaker’s involvement in the termination process does not mandate a
finding that the process is tainted by discriminatory motives. For instance, in Rosso v. A.I.
Root Co., a company president’s remarks to an employee’s supervisor regarding the
employee’s old age and memory loss were insufficient direct evidence of age discrimination.
97 F. App’x 517, 520 (6th Cir. 2004). Rosso was a reduction-in-force case where the
president, vice president, and chief operating officer jointly evaluated the plaintiff’s job
performance at the time when the speaker made biased statements. Id. at 51819. Over six
months later, the plaintiff’s new supervisor decided to terminate Rosso because of the
supervisor’s independent observations of Rosso’s difficulties on the product line. Id. at 520.
The court held that the previous supervisor’s statements were not attributable to the new
supervisor’s evaluation. Id. Correspondingly, in Kahl, the court held that a supervisor’s
biased remarks were not direct evidence of discrimination where the annual performance
evaluation was filled out by another who had heard the speaker’s remarks. 173 F.3d 855,
1999 WL 196556, at *4. The court considered the remarks to be “stray” because they were
temporally and topically distant from the plaintiff’s termination. Id.
Grzanka “contributed significantly” to the decision to terminate the plaintiff. Wells,
58 F.3d at 238. Human Resources relied entirely on the scores Grzanka gave McCartt in
deciding to terminate him. [Record No. 48-12, ¶ 8] The present action is similar to Sharp,
which involved a forced ranking system for reducing labor. 726 F.3d at 794. In both cases,
the decision-makers relied completely on evaluations conducted by the speaker of the biased
statement. Id. at 797. Thus, the “discriminatory information flow” began with Grzanka and
influenced the decision to terminate him “downstream.” Id. at 797. If Kellogg wished to
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“insulate” itself, it should have relied on evaluations by others, or it should have ensured that
objective criteria were used, rather than rely on Grzanka’s word. While this case is different
from Sharp because the speaker in that case knew that the rankings would be used for the
plaintiff’s termination, the Court does not find this distinction to be legally relevant. A
reasonable supervisor would be on notice that a nationwide assessment of RSRs might -- and
likely would -- lead to adverse employment decisions for those with low scores.
Moreover, this case is dissimilar to Rosso and Kahl. 97 F. App’x 517, 520 (6th Cir.
2004); 173 F.3d 855, 1999 WL 196556, at *4. There, a supervisor other than the speaker of
the biased statement independently evaluated the plaintiff. Thus, any contribution by the
speaker to the employment decision was not “significant.”
independent assessment.

But here, there was no

Because Grzanka played a significant role in the decision to

terminate the plaintiff, this factor weighs in favor of a finding of sufficient direct evidence of
discrimination.
c.

Temporal Proximity

Lastly, biased remarks that are not proximate in time to the adverse employment
action are generally not sufficiently probative. For example, remarks over six months before
the action are usually too distant. See Phelps, 986 F.2d at 102526 (twelve months); Kahl,
173 F.3d 855, 1999 WL 196556, at *4 (eight months); Ercegovich, 154 F.3d at 357 (fourteen
months); Rosso 97 F. App’x at *520 (six months). However, temporal distance alone, does
not require a finding of insufficient direct evidence of discrimination. For instance, Phelps
involved one ambiguous statement (that the plaintiff’s birthday was “cause for concern”) and
one statement by a person who did not influence the plaintiff’s termination and concerned
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her demotion, not her termination. 986 F.2d at 1025. Similarly, the statements in Kahl and
Ercegovich did not concern the plaintiffs. 173 F.3d 855, 1999 WL 196556, at *4; 154 F.3d
at 355.

And in Rosso, an independent evaluation of the plaintiff’s performance was

conducted. 97 F. App’x at 520. While ten months between Grzanka’s statement and
McCartt’s termination reduces the weight of the evidence, this factor does not weigh so
heavily against the plaintiff for summary judgment to be proper.
Because Grzanka’s allegedly-biased remark was unambiguous and asserted by
someone who “contributed significantly” to McCartt’s termination, the plaintiff has
presented sufficient direct evidence to withstand summary judgment on his ADEA and
KCRA claims.3 Thus, the Court will deny summary judgment on Counts I and II.
2.

Indirect Evidence

Kellogg contends that McCartt has waived any argument that he has presented
sufficient indirect evidence of discrimination to survive summary judgment because McCartt
did not even attempt in his response brief to establish a prima facie case of age
discrimination under the McDonnell Douglas framework. [Record No. 56, p. 6] Because
McCartt has established sufficient direct evidence of discrimination, the Court need not
address whether he abandoned a circumstantial approach. See Kline v. Tenn. Valley Auth.,
128 F.3d 337, 348 (6th Cir. 1997) (“[T]he entire purpose of the McDonnell Douglas prima
facie case is to compensate for the fact that direct evidence of intentional discrimination is

3
The defendants also argue that the plaintiff improperly relied on inadmissible evidence in
supporting his ADEA and KCRA claims. [Record No. 56, p. 3] Because the Court has not considered
this evidence in reaching its conclusion, it will not address the argument at this time.

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hard to come by.”) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989)
(O'Connor, J. concurring)).
B.

Retaliation

Kellogg next moves for summary judgment on McCartt’s claims of retaliation under
Title VII and KRS § 344.280.

First, Kellogg argues that McCartt has abandoned the

retaliation theory premised on Kellogg’s alleged failure to pay him severance benefits.
[Record No. 56, p. 9] Second, it asserts that it is entitled to summary judgment on the ADEA
retaliation claim because the plaintiff has failed to exhaust his administrative remedies.
[Record No. 48-1, pp. 1920] Third, it asserts that McCartt cannot make a prima facie case
of retaliation under either the ADEA or KCRA. [Id., pp. 2021]
1.

Withholding of Severance Benefits

A plaintiffs abandons claims that he fails to brief before the district court. See Conner
v. Hardee’s Food Systems, Inc., 65 F. App’x 19, 24 (6th Cir. 2003). As a result, district
courts properly decline to consider the merits of a claim where the non-movant fails to
address the issue in his response to a summary judgment motion. Hicks v. Concorde Career
College, 449 F. App’x 484, 487 (6th Cir. 2011) (district court properly refused to consider
merits of hostile work environment claim); see also Clark v. City of Dublin, Ohio, 178 F.
App’x 522, 525 (6th Cir. 2006) (district court declined to rule on merits of Ohio age and
disability claims where plaintiff only responded to defendant’s arguments regarding the
federal disability claim); E.E.O.C. v. Home Depot U.S.A., Inc., No. 4:07CV0143, 2009 WL
395835, *18 (N.D. Ohio Feb 17, 2009) (declining to address merits of retaliation and
constructive discharge claims).
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In his Complaint, the plaintiff alleges retaliation based on Kellogg’s alleged
withholding of certain severance benefits. [Record No. 1, ¶¶ 3839] However, when
Kellogg moved for summary judgment on this issue, McCartt failed to respond. Thus, the
plaintiff abandoned this claim, and the Court will not address it on the merits.4
2.

Exhaustion - ADEA

Kellogg asserts that McCartt’s retaliation claim fails under the ADEA, 29 U.S.C. §
623(d), because he did not exhaust his administrative remedies. Specifically, Kellogg notes
that he did not check the “retaliation” box on his Equal Employment Opportunity
Commission (“EEOC”) charge. [Record No. 48-1, p. 20] In his response brief, McCartt
contends that the narrative attached to his charge provided the EEOC with the facts necessary
to investigate his retaliation claim. [Record No. 53, p. 25]
A person aggrieved by a discriminatory act must first exhaust his administrative
remedies with the EEOC. Sherman v. Chrysler Corp., 47 F. App’x 716, 720 (6th Cir. 2002).
Under the “expected scope of investigation test,” a plaintiff must allege sufficient facts in his
EEOC complaint to put the EEOC on notice of other claims not specifically mentioned.
Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004). “[W]here facts related with respect to
the charged claim would prompt the EEOC to investigate a different, uncharged claim, the
plaintiff is not precluded from bringing suit on that claim.” Weigel v. Baptist Hosp. of E.
Tenn., 302 F.3d 367, 380 (6th Cir. 2002) (quoting Davis v. Sodexho, 157 F.3d 460, 463 (6th
Cir. 1998)).

4
Even if the plaintiff had not abandoned this issue, summary judgment would be proper

for Kellogg because Kellogg asserted a legitimate, nondiscriminatory reason for withholding
McCartt’s severance benefits: he never signed the agreement. [Record Nos. 1, ¶ 38; 48, p. 22]
McCartt has raised no genuine issue of material fact as to whether this reason is mere pretext.
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The narrative in McCartt’s EEOC Complaint does not meet the “expected scope of
investigation test.” He describes Grzanka’s discriminatory remark, the meeting Grzanka and
Hart had with him about a rumored list, and the ability of Kellogg to transfer people to other
positions so that McCartt’s position would remain open. [Record No. 48-17, pp. 67,
“EEOC Intake Questionnaire”]

McCartt never mentions plans to apply for a different

position, nor does he state that Anderson told him that he would not be accepted for any
other positions. His narrative simply does not put the EEOC on notice of a retaliation claim.
While McCartt cites the often-quoted phrase “retaliation naturally grows out of the
underlying substantive discrimination charge,” the Sixth Circuit cases quoting that phrase
include narratives that actually provide the EEOC with the facts related to the uncharged
claim. Weigel, 302 F.3d at 380. [Record No. 53, p. 23]
For example, Duggins v. Steak “n Shake, Inc. stated the quote in dictum after finding
that the plaintiff’s attached affidavit “clearly raised allegations of retaliation” because it
mentioned the plaintiff getting passed over for promotions and being singled out for
reprimands because she complained about her daughter’s rape and her own sexual
harassment. 195 F.3d 828, 83233 (6th Cir. 1999). Similarly, in Dixon, the Sixth Circuit
reversed the district court’s dismissal of the retaliation claim because the narrative included
facts about the supervisor’s response to complaints about harassment. 392 F.3d at 217. And
in Weigel, the court found that a plaintiff’s EEOC charge met the scope of investigation test
where it included facts relating to the employer’s refusal to rehire the plaintiff. 302 F.3d at
380.

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On the other hand, in Abeita v. TransAmerica Mailings, Inc., the Sixth Circuit held
that the district court properly dismissed the plaintiff’s retaliation claim in a sex
discrimination case because she neither checked the “retaliation” box nor described anything
indicating that she might have a retaliation claim in her EEOC complaint. 159 F.3d 246, 254
(6th Cir. 1998). Further, in Davis, the court warned against the charge filing requirement
being “written out of the law” where the EEOC charge has insufficient facts to notify the
EEOC of a particular claim. 157 F.3d at 464.
Here, the plaintiff’s EEOC charge is more similar to those in Abeita and Davis. 159
F.3d at 254; 157 F.3d at 464.

McCartt simply does not mention reporting Grzanka’s

statement to his superiors. Thus, the EEOC was not aware that he had engaged in a protected
activity that could have resulted in his termination. In addition, he failed to mention his
alleged conversation with Anderson about future employment with Kellogg. Nor did he
include any facts about Kellogg denying its terminated employees the opportunity to reapply. Because McCartt failed to include sufficient facts in his EEOC complaint, he does not
meet the ADEA’s “scope of investigation” test for either of the remaining retaliation
theories. As a result, summary judgment is proper for Kellogg on Count III of the plaintiff’s
Complaint.
2.

Merits - KCRA

McCartt contends that his remaining retaliation claims under KRS § 344.280
withstand summary judgment because there is no administrative exhaustion requirement in
the KCRA. [Record No. 53, p. 26] However, Kellogg claims that McCartt fails to make a
prima facie case of retaliation under the statute. [Record No. 48, pp. 2224] Kentucky
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courts interpret retaliation under the KCRA consistent with its interpretation under federal
law. Brooks v. Lexington-Fayette Urban Cty. Housing Auth., 132 S.W. 790, 801 (Ky. 2004).
Thus, a plaintiff claiming retaliation bears the initial burden of proving a prima facie case,
which includes proof that: (i) the plaintiff engaged in a protected activity; (ii) his exercise of
such activity was known by the defendant; (iii) the defendant took an action that was
materially adverse to the plaintiff; and (iv) there is a causal connection between the protected
activity and the materially adverse action. Id. at 803; Laster v. City of Kalamazoo, 746 F.3d
714, 730 (6th Cir. 2014).
“It is well-established that, in order to satisfy the adverse action requirement, the
Plaintiff must show that as a result of her engaging in protected activity, she suffered a
‘materially adverse’ change in the terms or conditions of employment. Brower v. Ross Prod.
Div., No. 2:01-CV-471, 2002 WL 484702, *3 (S.D. Ohio. Feb. 25, 2002). Generally, the
adverse action prong requires that the plaintiff actually apply for available positions. Id.
(dismissing plaintiff’s retaliation claim premised on the theory that the defendant failed to
allow the plaintiff to apply for re-employment); see also Vaughn v. Louisville Water Co., 302
F. App’x 337, 348 (6th Cir. 2008) (“Not receiving a promotion for which one did not apply
would not dissuade a reasonable worker from engaging in protected conduct, and
accordingly does not constitute a materially adverse action.”).
The formal application requirement may be relaxed where the job-seeker makes a
“reasonable attempt to demonstrate to the employer that he is interested in the job.” Grant v.
Harcourt Brace College Publishers, No. 98-3829, 191 F.3d 452, 1999 WL 717982, *4 (6th
Cir. Sept. 9, 1999) (affirming district court’s grant of summary judgment to employer on
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plaintiff’s retaliation claim premised on defendant’s refusal to consider plaintiff for rehire).
Or the plaintiff may escape the requirement with a showing that the application process
would have been futile. Id. at *3. For this exception, the plaintiff must show “overwhelming
evidence of pervasive discrimination in all aspects” of the employer’s internal employment
practices. Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 576 (6th Cir. 2004).
Here, McCartt alleges two theories of retaliation under the KCRA: (1) Kellogg
terminated him for reporting Grzanka’s biased statement to his superiors; and (2) Kellogg
refused to consider him for rehire because he informed Anderson that he was terminated for
discriminatory reasons. [Record No. 53, p. 26] McCartt’s first theory fails because McCartt
now states that he never reported Grzanka’s statement to his superiors prior to his
termination. [Record No. 53-2, p. 25] As a result, he did not engage in a protected activity
prior to that termination.
McCartt’s second theory of retaliation fails because he has not demonstrated that
Kellogg took adverse action against him.5 The plaintiff claims that Anderson’s alleged
statement that he would not be considered for future positions fulfills this prong. [Record
No. 53, p. 26] But a plaintiff alleging that his failure to be rehired is retaliatory must
demonstrate that he actually applied for the position or that his circumstances fit within an
exception. McCartt has not argued that he made a “reasonable attempt to demonstrate” to
Kellogg that he was interested in a particular position, as required by Grant, 191 F.3d at *4.

5
To the extent that McCartt now claims that Kellogg’s failure to rehire him after his recent 2015
application constitutes retaliation, the Court notes that this application arose after the filing of the
plaintiff’s Complaint. [Record No. 53-2, p. 24] Because this claim was not pled in the Complaint, the
Court need not address it.

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Further, he has not pointed to “overwhelming evidence of pervasive discrimination in all
aspects” of Kellogg’s internal employment practices to show that formal application would
have been futile. Bacon, 370 F.3d at 576. McCartt merely noted that HR keeps track of
applicants who formerly worked at Kellogg; however, that is not overwhelming evidence of
a discriminatory policy. [Record No. 48-5, p. 44] Because McCartt has failed to make a
prima facie case of retaliation under the KCRA, summary judgment is proper for the
defendant regarding Count IV.
C.

FLSA and Kentucky Wage Statutes

Kellogg has moved for summary judgment on Counts V, VI, and VIII of the
plaintiff’s Complaint, which allege that Kellogg violated 29 U.S.C. § 207 and KRS §
337.285 by failing to pay McCartt overtime, and that it violated KRS § 337.355 by failing to
compensate him for meal/rest breaks. [Record No. 1, ¶¶ 4876, 8588] Because McCartt
failed to address the “breaks” issue in his response to Kellogg’s motion for summary
judgment, the Court concludes that he has abandoned this claim. Thus, the Court will not
consider it on the merits and will grant summary judgment to Kellogg on Count VIII.6 For
Counts V and VI, Kellogg argues that the plaintiff’s RSR position is an exempt “outside
salesman” position under both the FLSA and the Kentucky wage statutes. [Record No. 48-1,
pp. 2428] In his response, McCartt contends that the “outside salesman” exception does not
apply to him. [Record No. 53, pp. 1017]

6
Further, McCartt has not presented sufficient evidence of the date and time of Kellogg’s

alleged violations. [See Record No. 53-2, p. 28.] Hisle v. CorrectCare-Integrated Health, Inc.,
No. 2013-CA-000937-MR, 2015 WL 3638006 (Ky. Ct. App. June 12, 2015) (finding that
appellants’ claims that they missed lunch practically every day were insufficient) (citing Myracle
v. Gen. Elec. Co., No. 92-6716, 33 F.3d 55, 1994 WL 456769 (6th Cir. Aug. 23, 1994)).
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The Fair Labor Standards Act requires that employers pay their employees overtime
for a workweek longer than forty hours. 29 U.S.C. § 207(a). However, employees in the
capacity of outside salesman are exempted. 29 U.S.C. § 213(a)(1). The court must construe
this exemption narrowly and against the employer. Christopher v. SmithKline Beecham
Corp., 132 S. Ct. 2156, 2161 (2012). KRS § 337.385(1) also requires employers to pay
overtime to employees, and the “outside salesman” exemption exists under KRS §
337.010(2)(a)(2). The overtime provisions of the FLSA and Kentucky wage and hour law
are co-extensive and analyzed identically. City of Louisville, Div. of Fire v. Fire Serv.
Managers Ass’n, 212 S.W.3d 89, 92 (Ky. 2006).
Under the Department of Labor regulations, an outside salesman is one whose
primary duty is either making sales or obtaining orders or contracts for services and who is
“customarily and regularly engaged away from the employer’s place of business in
performing such primary duty.”

29 C.F.R. § 541.500.

Factors for determining an

employee’s “primary duty” include: (i) the relative importance of the exempt duties as
compared with other types of duties; (ii) the amount of time spent performing exempt work;
(iii) the employee’s relative freedom from direct supervision; and (iv) the relationship
between the employee’s salary and the wages paid to other employees for the kind of
nonexempt work performed by the employee. 29 C.F.R. § 541.700(a).
The Sixth Circuit has addressed the “outside salesman” exemption. In Killion v.
KeHE Distrib., LLC, it held that the district court improperly granted summary judgment to
the defendant where the plaintiffs were sales representatives for the defendant-distributor of
ethnic and health foods. 761 F.3d 574 (6th Cir. 2014). The plaintiffs’ duties included
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stocking shelves, reordering merchandise when inventory was depleted, and occasionally
cold-calling smaller independent retailers to solicit orders.

Id. at 577.

Customer

development established the initial relationships with chain stores, and the business and
development team and account management team negotiated the deals to get the defendant’s
products into the stores. Id. at 578. In addition, the plaintiffs’ compensation was primarily
based on stocking shelvesit did not vary with incremental sales. Id. at 585.
The court held that a jury could conclude that making sales was not the primary
responsibility of the plaintiffs because: (1) the majority of their time was spent stocking
shelves; (2) their compensation was based primarily on that stocking; and (3) a question
remained as to whether the “promotional” activities were in furtherance of the plaintiffs’ own
sales or the sales by account managers. Id. For the latter factor, the court looked to 29
C.F.R. § 541.503, which provides, “[P]romotional work that is incidental to sales made, or to
be made, by someone else is not exempt outside sales work.” This regulation also provides
an example of a “company representative who visits chain stores, replenishes stock by
replacing old with new merchandise, sets up displays and consults with the store manager
when inventory runs low, but does not obtain a commitment for additional purchases.” 29
C.F.R. § 541.503(c).
The Tenth Circuit has held that plaintiffs’ promotional and merchandising activities
were “incidental to and in conjunction with” their own sales where there was no question that
the plaintiffs’ primary responsibility was to sell Coca-Cola products to grocery stores, while
the merchandisers performed distribution and promotion duties. Ackerman v. Coca-Cola
Enterprises, Inc., 179 F.3d 1260, 1261 (10th Cir. 1999). Similarly, in Meza v. Intelligent
- 24  

Mexican Marketing, Inc., the Fifth Circuit found that the plaintiff’s work was incidental to
his sales because only those in his position were responsible for “any aspect” of sales to the
employer’s customers. 720 F.3d 577, 587 (5th Cir. 2013). Specifically, the Meza court
reasoned that the case was unlike Skipper v. Superior Dairies, Inc., where “negotiation
between management officials of [the employer] and officials of [the store]” determined the
product in each individual store. Id. at 586 (referring to Skipper v. Superior Dairies, Inc.,
512 F.2d 409 (5th Cir.1975)).
The question for this Court is not whether McCartt’s primary duty was making sales.
Instead, the question is whether McCartt raised a genuine issue of material fact regarding
whether his primary duty as Kellogg’s RSR in District 797 was making sales.

After

analyzing the factors in the regulations, the Court concludes that he did not. Only one of the
four factors weighs in his favor.
1.

Relative Importance of Exempt Duties to Non-exempt Duties

Kellogg has presented evidence that the RSRs’ duty to make sales was of utmost
importance. For example, the Job Profile for RSRs lists as the “Primary Function” that the
RSR is the customer-facing, in-store, sales employee” requiring “effective fact-based selling
techniques” and that the customer “achieve targeted sales and volume goals.” [Record No.
48-6, p. 2] McCartt agrees that this job description is accurate. [Record No. 53-2, p. 10]
Further, RSR’s performance was measured by “Dollar Growth” and sales, and variable labor
depended on sales.

[Record No. 48-10]

In addition, McCartt’s “2012 Performance

Development Plan” focused on his responsibility to drive growth, expand relationships with
national account teams, and use variable labor. [Record No. 48-11] In fact, in attempting to
- 25  

demonstrate to the EEOC that he was qualified for the RSR position, McCartt focused
primarily on the fact that his sales records were better than his co-workers’. [Record No. 4817, p. 6; Record No. 48-20] He again affirmed his qualifications based on his sales figures in
his deposition. [Record No. 53-2, p. 25]
McCartt attempts to counter Kellogg’s evidence (and his own concessions) by
focusing on the fact that he only made “incremental” sales because account executives
organized the deals with his large retail chain customers.

[Record No. 53-2, p. 27]

However, he concedes that the RSR responsibility was to focus upon selling more product
within the stores, which was communicated to him at group district meetings once per
month. [Id., p. 19] Further, his former District Manager John Taylor stated that “the
expectation of the RSR or territory manager was to sell [product] incrementally to help
increase the display penetration and increase sales.” [Record No. 53-13, pp. 17, 19] He also
mentioned that the RSR position was changing so that RSRs were supposed to place “more
focus” on incremental sales. [Id., p. 29] While Taylor confirmed the fact that RSRs would
not be able to place their focus on sales when they did not have sufficient merchandisers
assigned to them, he also could not recall a time when McCartt asked for more
merchandisers. [Record No. 53-13, p. 71] This suggests that McCartt may not have been
placing his focus where Kellogg expected it.
While this factor does not weigh heavily in Kellogg’s favor, it does lean in that
direction. This case differs from Killion, where the employees could only make sales with
the independent storesthere was no expectation that they would make sales with the large
retail chains. 761 F.3d at 578. It is not as strong as Mesa or Ackerman, but it strongly
- 26  

demonstrates that RSRs were to focus on sales, leaving the merchandising to the
merchandisers.  179 F.3d at 1261; 720 F.3d at 587.
2.

Time Spent Performing Non-exempt Work

McCartt argues that, because he spent the majority of his time “merchandising,” his
position does not qualify for the RSR exemption. [Record No. 53-2, p. 16] Some of this
merchandising was in furtherance of deals already-made by account executives at Kellogg,
while some was for McCartt’s sales. McCartt and Taylor sufficiently demonstrate that more
of McCartt’s time may have been spent on promotional activities that were not incidental to
his own sales, thus categorizing those activities as non-exempt work. [See Record No. 53-2,
p. 8.] While this factor weighs in the plaintiff’s favor, it is discounted by the fact that he may
not have been using his time in the way Kellogg expected. He claims that this was because
there were insufficient merchandisers, but Taylor could not recall an instance when McCartt
asked for more. [Id., Record No. 53-13, p. 71] McCartt cannot claim the benefit of this
factor if his own non-compliance resulted in the factor favoring his position.
3.

Freedom from Direct Supervision

The plaintiff presents little evidence of direct supervision. For example, District
Managers would perform annual “Performance Development Plans” and provide the RSRs
with monthly scorecards. [Record Nos. 48-10, 48-11] However, each RSR was responsible
for managing the contacts with the stores in his district. [Record No. 53-2, p. 6] In
describing McCartt’s work, McCartt’s direct supervisor commented that he could count on
the plaintiff to “service the stores.” [Record No. 53-13, p. 13] He did not focus on specifics,
but rather remarked that “day in and day out,” he could count on McCartt to show up for
- 27  

work and do “what was necessary.” [Id., p. 14] Because McCartt has presented little
evidence of direct supervision, this factor weighs in Kellogg’s favor.
4.

Compensation

This factor clearly weighs in Kellogg’s favor because McCartt’s commissions were
based entirely on the sales he made. [Record No. 53-2, p. 27] The Sixth Circuit viewed this
factor as particularly important in Killion, where the plaintiffs’ commissions were based on
their stocking of shelves. 761 F.3d at 585. This case differs from Killion in two important
respects: McCartt had the ability to make incremental sales, unlike the plaintiffs in Killion,
and his bonuses were computed on his sales, while those in Killion were based on shelf
stocking.
Because three of the four factors in the regulations weigh in Kellogg’s favor, and
because even the one factor in McCartt’s favor is discounted by his non-compliance with
Kellogg’s expectations, the Court will grant summary judgment to Kellogg on the plaintiff’s
overtime claims in Counts V and VI.
D.

Wrongful Discharge in Violation of Public Policy

Kellogg has also moved for summary judgment on the wrongful discharge claim
(Count VII), asserting that it is preempted by the ADEA and KCRA because any remedies
the plaintiff seeks are “established in the statutes underpinning” the claims. [Record No. 481, p. 31] Further, Kellogg asserts that McCartt has waived this claim because he has failed to
address it in his response brief. [Record No. 56, p. 5] Because the plaintiff has not
addressed the public policy claim, he has abandoned it. Hicks v. Concorde Career College,
449 F. App’x 484, 487 (6th Cir. 2011).
- 28  

But even if McCartt had addressed the public policy claim, the Court would still grant
summary judgment to the defendant. The Kentucky Supreme Court has established the
following limitations to the wrongful discharge exception to the at-will employment
doctrine:
(1) The discharge must be contrary to a fundamental and well-defined public
policy as evidenced by existing law. (2) That policy must be evidenced by a
constitutional or statutory provision. (3) The decision of whether the public
policy asserted meets these criteria is a question of law for the court to decide,
not a question of fact.
Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985). Both the ADEA and the KCRA make it
unlawful for an employer to discharge an employee because of an individual’s age. 29
U.S.C. § 621; K.R.S. § 344.040. These statutes also provide the remedy available to the
aggrieved party. In Grzyb, the Kentucky Supreme Court found that K.R.S. § 344.040 would
provide “the necessary underpinning” for a wrongful discharge suit based on sex
discrimination, concluding that “[t]he statute not only creates the public policy but preempts
the field of its application.” Grzyb, 700 S.W.2d at 401.
Further, in Banister v. Commonwealth of Kentucky, No. 5:04cv78R, 2005 WL
1214252 (W.D. Ky. May 20, 2005), presuming that the plaintiff’s wrongful discharge claim
was based on facts similar to the plaintiff’s claim of reverse race discrimination and age
discrimination, the court concluded that because K.R.S. § 344.040 “both declares the
unlawful act and specifies the civil remedy,” the plaintiff was limited to a statutory remedy.
Id. at *8 (quoting Grzyb, 700 S.W.2d at 401).
In the present case, because McCartt’s wrongful discharge claim is premised on the
same facts as the ADEA, KCRA, FLSA, and Kentucky wage statute claims, he is limited to a
- 29  

statutory remedy.

Therefore, his wrongful discharge claim cannot survive summary

judgment. See Jones v. Kroger, Inc., No. CivA.504-543-JMH, 2005 WL 2807194 (E.D. Ky.
Oct. 27, 2005).
IV.
Based on the foregoing, the Court will grant summary judgment on Counts III
through VIII but deny summary judgment on Counts I and II. McCartt has presented
sufficient direct evidence of age discrimination to withstand summary judgment on his
ADEA and KCRA claims.

However, he has failed to present sufficient circumstantial

evidence to make a prima facie case of retaliation under the KCRS because he did not apply
for a particular position for rehire nor point to overwhelming evidence that formal
application would be futile. He also failed to exhaust his administrative remedies with
respect to the ADEA retaliation claim.
McCartt has abandoned several claims, including: (i) retaliation, premised on
Kellogg’s alleged failure to pay him severance benefits; (ii) the Kentucky wage/hour
violation, premised on Kellogg’s failure to pay him for “breaks;” and (iii) the public policy
claim based on alleged violations of the ADEA, KCRA, and FLSA. The plaintiff also has
failed to demonstrate that a genuine issue of material fact exists regarding whether he is an
outside salesman under the FLSA and the Kentucky wage statute.
Accordingly, it is hereby ORDERED as follows:
1.

The defendants’ motion for summary judgment [Record No. 48] is

GRANTED, with respect to Plaintiff McCartt’s claims of retaliation, violation of the FLSA

- 30  

and the Kentucky wage/hour statute, and violation of Kentucky public policy (Counts III
through VIII).
2.

The defendants’ motion for summary judgment [Record No. 48] is DENIED

with respect to the remaining claims (Counts I and II).
This 14th day of October, 2015.

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