Land v. Southern States Cooperative, Inc.
Filing
94
MEMORANDUM OPINION & ORDER: (1) 64 MOTION for Summary Judgment by Southern States Cooperative, Inc. is GRANTED. Judgment will issue by separate order; (2) final pretrial conference scheduled for Monday, September 12, 2016, is CONTINUED GENERALLY, pending further order of the Court. Signed by Judge Joseph M. Hood on 9/9/2016.(STC)cc: COR,D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MICHAEL LAND,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
SOUTHERN STATES COOPERATIVE,
INC.
Defendant.
Civil Case No. 15-cv-83-JMH
MEMORANDUM OPINION AND ORDER
***
This matter is before the Court upon Defendant Southern
States
Cooperative,
Inc.’s
Summary Judgment [DE 64].
was
discharged
Defendant’s
2014,
as
a
from
Richmond,
result
of
(“Southern
States”),
Motion
for
In his Complaint, Land avers that he
the
Assistant
Kentucky,
retail
discrimination
Manager
location
based
on
position
on
March
disability
at
21,
in
violation of the Americans with Disabilities Act (“ADA”) and the
Kentucky Civil Rights Act (“KCRA”); discrimination based on age
in violation of the Age Discrimination in Employment Act of 1967
(“ADEA”) and the KCRA; in retaliation for being a member of a
protected class with respect to disability and age, as well as
in retaliation for his use of FMLA leave and his requests for
reasonable accommodation under the ADA, ADEA, and KCRA; and in
breach of an employment contract.
his claims must fail.
Defendant argues that all of
Plaintiff objects in his Response [DE
67], and Defendant has filed a Reply in further support of its
Motion
[DE
69].
For
the
reasons
which
follow,
Defendant’s
Motion will be granted.
I.
Land spent close to thirty years running his own plant
nursery business.
Eventually, he applied and was hired as an
Assistant Manager for Southern States’ retail store in Richmond,
Kentucky on April 17, 2011. The store sells goods and services
ranging from animal feed and health, crops, farm supplies, and
propane.
At
the
time
of
his
employment
application,
represented that he could lift a fifty-pound bag of feed.
assistant
manager,
Land’s
duties
included
giving
Land
As
warehouse
personnel directions and orders, filling in at the store counter
or in the warehouse when clerks or warehouse personnel were gone
or sick, and tracking leased propane equipment by documenting
lease agreements for leased equipment.
He was also responsible
for directing recordkeeping and inventory control, being present
on the store floor, following corporate standards, filling in
for
other
assigned.
employees
as
needed,
and
performing
duties
as
Land’s position included desk work, and Land worked
from time to time in the assistant store manager’s office, which
was located behind another office and from which one cannot see
what is going on out on the floor in the store.
It was also
possible to complete some of that desk or computer work on the
floor at another computer, sitting on a ladder if needed.
He
had
no
employment
contract
with
Southern
States
and
received “Work Rules” providing that “[e]mployment is at-will
and shall continue only as long as the employee and the company
both want it to continue” and an Employee Handbook which stated
that employment with Southern States was “at will” absent a
written
employment
States.
contract
signed
by
the
CEO
of
Southern
He (but not the Southern States’ CEO) also signed an
Information and Non-Solicitation Agreement as part of his hiring
packet
which
makes
no
suggestion
that
it
was
intended
to
abrogate Land’s at-will employment status nor purported be an
employment contract.
When he was hired, he was provided a copy
of Defendant’s anti-harassment and anti-discrimination policy,
which set out the process for addressing complaints of unlawful
harassment and discrimination.
Land’s employment application to
Southern
that
States
represented
he
understood
that
his
employment with Southern States would be at-will.
During Land’s employment, the Richmond store had six to
nine
full-time
employees,
including
warehouse
personnel,
the
Assistant Manager (Land), and the store Manager (Richard Winn).
The store also had one to two part-time employees and occasional
temporary seasonal help.
staff,
which
he
Land describes the store as short on
believed
to
be
the
result
of
budgetary
shortfalls
and
supervisor.
generally
lack
of
funds.
Winn
was
Land’s
direct
On May 8, 2012, and April 24, 2013, Winn gave Land
good
written
reviews,
reflecting
that
he
“achieved
expected performance,” but testified that Land was “not a real
good people person . . . kind of withdrawn, kind of a little
abrupt,
can
be
a
little
bit
rude
to
people,”
gave
vague
directions and orders, and “would not discipline people.”
Donna
Garcia, a manager in Southern States’ human resources department
observed that Land’s appraisals from Winn were all good and
there were no writeups in his personnel file.
During
Land’s
employment,
two
responsible for the Richmond store:
until
June
30,
2012,
and
from
District
Managers
were
Mike Hash (from Land’s hire
July
1,
2013,
through
the
termination of Land’s employment) and Jim Briedwell (from June
1, 2012, through June 30, 2013).
summer
of
2013,
Briedwell
During Hash’s absence in the
provided
the
services
of
district
manager for the Richmond store until Hash’s return in August
2013.
As a general matter, the district manager visited the
Richmond store once every two weeks, sometimes for about four
hours at a time.
The assistant store manager would receive
instructions and directions from both the district manager and
the store manager.
Land was not impressed with his managers,
describing Hash as a “micromanager” and Briedwell as a “bully.”
He felt that neither Hash, Briedwell, nor Winn did anything
particularly well during his time with Defendant.
Terry Sweat
served as regional manager responsible for the Richmond store
during Land’s employment.
Sweat
observed
that
the
Richmond
store
showroom,
storefront, and outside lot area were maintained in a way that
was below average for company standards during most of his store
visits from April 2011 to July 2012.
Sweat’s
concerns
when
he
became
Briedwell was aware of
district
concerns about Land’s job performance.
manager,
including
Briedwell was not happy
with the store’s compliance with company standards either, and
he understood that it was Land’s responsibility to make sure
that
the
inside
and
corporate standards.
outside
of
the
store
were
up
to
the
Shortly after he became district manager
in June 2012, Briedwell told Land that he needed to step up and
do more of what he had been hired to do as Assistant manager or
“they would hire someone younger and pay them - - and could pay
them less.”
In early to mid-fall of 2012, Briedwell told Land
that Land was in charge of making sure that the inside of the
store
was
up
to
Southern
States’
standards,
that
corporate
floor, shelving, and stocking plans for the store were set, and
that the outside of the store was generally clean.
He also
advised that Land would work on setting up a garden center at
the store.
Land felt the garden center was a bad business
decision and disagreed with various decisions involving in the
garden center by upper management.
Briedwell repeatedly told Land that he was unhappy with his
performance and that Land needed to keep up with the corporate
floor, shelving, and stocking plans and spend less time in the
office.
Sweat continued to observe that the store was below the
standards set for its condition.
Briedwell also told Land that
he had heard negative comments from store employees about Land.
Briedwell concluded that Land did not believe him because, when
Briedwell would not tell Land which employees had complained,
Land told him that “you can’t make a comment like that, unless
you can back it up.”
Briedwell’s
critiques
Land responded to a written account of
by
disputing
the
criticisms
or
placing
blame on Winn or another store employee.
Land
had
a
knee
replacement
surgery
on
June
6,
2013.1
Before his knee surgery, Land requested leave through August 7,
2013, and his request was approved.
Land developed cellulitis
following the surgery, which necessitated extended leave from
work.
Land brought the papers concerning his leave request to
work, and Winn “threw the papers back at” Land and told him to
contact
human
resources.
Land
sent
the
papers
to
human
resources and was approved to take additional time off after his
surgery.
1
At some point during his leave, Land came in for part
Land also had surgery for carpal tunnel issues in July of 2012.
of a day to complete inventory, but he did not record any time
for
it.
After
some
time
had
passed,
Land’s
physician,
Dr.
Jeffrey Selby, authorized Land to return to work on July 2,
2013, for 4 hours a day and without lifting or standing for more
than an hour at a time.
During the period of this restriction,
Land recorded four hours of work a day, even though he stayed at
the store for longer periods of time because he felt that his
help was needed for customers.
Land verbally expressed his
concerns about this situation to his immediate supervisor, Winn,
but
was
reluctant
to
express
too
much
concern
because
Land
thought that Winn had a bad attitude about employees being off
from work.
Land based this belief on Winn’s response when he
brought his paperwork for additional time off to the store and
because of an instance in which the two had discussed another
employee’s workers compensation benefits for an injury received
at home with which Winn disagreed.
“looked
at
[Land]
and
turned
Land described how Winn had
red
in
the
face”
when
Land
Land’s
work
indicated that he felt it was a corporate decision.
More
time
passed,
and
Dr.
Selby
loosened
restrictions on July 24, 2013, permitting him to work six-hour
days
for
two
weeks
and
then
eight-hour
days,
with
lifting
limited to no more than 25 pounds and standing limited to two
hours at a time.
Land occasionally ignored those restrictions.
He never told Winn that he was doing work in excess of the
restrictions, but Winn never intervened when he saw Winn lifting
a bag or undertaking other activities.
Sometimes Land would
stand at the counter, hold up his leg and shake it, before
sitting down on a bag of dog food and saying, “man, my knee is
killing me today, and shew, I’ve got to sit down a minute.”
Winn responded, “well can you handle it?
I’m gone for the day.”
Land did not otherwise tell Winn that he needed help or a break.
He felt that Winn’s body language discouraged him to discuss
knee or back pain because if he made comments, Winn “would drop
his head and look over his glasses” in a way that Land took to
mean “don’t you dare go there.”
Winn recalled Land’s request for accommodations consistent
with his work restrictions and that Land never said “no,” so he
assumed that Land was in compliance with the restrictions.
Winn
did not recall Land requesting any accommodations other than
those set forth in the work restrictions and expected Land to
speak up if Land felt that he was being asked to violate those
restrictions.
Briedwell
was
unaware
of
any
requests
for
accommodations and knew nothing of Land’s knee or low back pain.
Hash never provided negative feedback to Land for needing time
off or for being on restrictions, and Land never discussed his
restrictions following knee surgery with Hash.
Sweat was aware
of Land’s leave and requested information about the application
of
paid
time
off
and
short
term
disability
with
respect
to
Land’s leave for knee surgery to be sure that it was handled
correctly as he normally did for management-level employees.
When Hash returned as district manager in the first week of
August
2013,
Hash
requested
copies
of
Land’s
appraisals
and
write-ups to learn more about Land’s job performance so that he
would
be
prepared
performance.
to
work
with
Land
and
to
improve
Land’s
Land’s 2013 performance appraisal observed that
Land would benefit from “spending more time at the counter and
walking the sales floor” and that the housekeeping of the store
needed
to
improve.
Hash
requested
that
he
be
advised
when
Land’s work restrictions were lifted so that he would not ask
Land
to
engaged
do
in
anything
multiple
contrary
to
conversations
those
with
restrictions.
Land
about
his
Hash
poor
performance but termination of Land’s employment was not under
consideration when, on August 30, 2013, the men met to discuss
Hash’s performance expectations for Land, including that Land
would spend six to eight hours out of his office during each
workday.
Land
did
not
communicate
any
concerns
that
this
requirement might be contrary to his standing restriction.2
Hash
followed up on the issues that he identified in an August 30,
2013,
2
email
to
Land
during
the
remainder
of
his
2013
store
Dr. Selby testified that such a requirement would not
necessarily be contrary to the standing restriction and that,
while he establishes the restrictions, it is up to the employer
and the employee to figure out how to implement them.
visits.
Land found Hash’s instructions confusing with respect
to dead inventory and plan-o-grams, felt Hash was asking him to
do additional work while other employees were slacking off, and
disagreed with the priorities Hash assigned to different areas
of the store.
In August and September 2013, Land told Winn that his knee
and his back were giving him problems and that he felt it was
from standing on the concrete for long periods of time and that
he needed to take breaks but that Hash had said that he needed
to be on the floor for six hours a day.
Winn explained that he
would not contradict Hash and did not convey this information to
Hash.
Land communicated with Hash, but only to express concerns
about
whether
he
had
enough
time
to
complete
inventory
and
computer work related to propane not to express concerns about
his physical condition.
In September or October of 2013, Land
told Winn that he was experiencing back and lower extremity pain
due to an issue with his sciatic nerve and was going to have to
get relief from standing and sitting by going into the office to
do
computer
work,
attending
doctor
visits,
and
surgical interventions to address low back pain.
using
non-
He told Winn
that “there was probably a 90 percent probability” that he would
have back surgery in summer or fall of 2014.
Winn said nothing
in response, but Land felt that Winn’s look said “you’re kidding
me.”
After that conversation, Winn would inquire of Land, “can
you handle it from here?” but Land felt that Winn was insincere
and expected Winn to ask him if he needed to go home or take a
break.
Meanwhile, Dr. Selby released Land to return to work with
no
active
restrictions
on
October
23,
2013.
Land
told
his
treating physician for lower back pain, Dr. R. Carter Cassidy,
as late as February 13, 2014, that he wanted to use physical
therapy to treat his low back at that time and never followed up
to seek a more aggressive treatment.
There is no record of work
restrictions imposed by his physician.
that
Hash,
about
Briedwell,
Land’s
Sweat,
possible
or
back
There is no evidence
Garcia,
had
surgery
or
accommodations concerning his back.
any
information
requests
for
As of December 2, 2013,
Land was able to lift fifty-pound sacks of feed at work and
during his work on his farm.
Throughout the fall of 2013, Sweat believed that the floor
and outside areas of the Richmond store were not up to par.
During a December 2013employee meeting with nine to eleven other
employees present, Hash made a reference to the movie War Horse
in which a group of horses was working together to pull an
object up a hill, and one struggling horse was shot and replaced
with a different horse.
In making the analogy, Hash made a
comment to the effect of “I don’t mean to imply that we will
shoot you, but we’ll make it to the top of the hill with or
without you.” Another attendee was about Land’s age, but the
other attendees were younger. While Hash was making the alleged
analogy, Hash did not expressly mention Land’s name, but Land
felt that Hash made eye contact with him. Land had seen the
movie and, based on his recollection of the movie, he took the
comment as a threat because the horse to which Hash referred was
older.
On
January
Performance
31,
2014,
Improvement
Hash
Plan
gave
(“PIP”).
Land
In
a
forty-five
reviewing
the
day
PIP
before it was provided to Land, Donna Garcia expressed concern
about the timeframe but was satisfied when Hash stated that he
wanted to see improvement during the time frame of the PIP, not
completion of all items.
A PIP was intended to improve an
employee’s performance, not lay the groundwork for termination.
Land’s PIP was based on the assistant manager job description
and
Hash’s
interpretation
of
that
description,
and
Land
understood that Hash wanted to see improvement over the fortyfive day period.
He did not, however, feel that the assessment
of his performance was correct and refused to sign the PIP until
February 10, 2014.
Land contacted Garcia about his PIP in mid-
February but declined to share his concerns about it despite her
invitation to do so.
Briedwell was not involved in the PIP.
Winn was not involved in developing the PIP and knew nothing of
it until Hash arrived at the store for a visit on January 31,
2014.
Winn felt that Land could meet the PIP.
Hash
visited
again
on
February
7,
2014,
giving
Land
instructions on the store and an opportunity to ask questions.
Land asked no questions about the PIP or his job duties.
On
February 10, 2014, Winn and Land worked on a plan to address the
PIP.
Winn
was
to
take
some
of
Land’s
responsibilities,
including the propane reports, so that Land could focus on the
showroom.
Hash was not involved in the discussions.
In mid-
February 2014, Land wrote a letter to Garcia in human resources
and
to
Southern
States
Vice
President,
Anne
Clingenpeel,
outlining his disagreement with the PIP, but he did not send the
letters until March 10, 2014, and he did not approach Hash about
the
concerns
set
out
in
the
letters.
In
the
twenty-three
single-spaced pages setting forth details of his dissatisfaction
with
his
managers
believed
he
faced
mention
of
his
and
in
his
position
improving
physical
under
and
the
condition,
the
obstacles
PIP,
there
any
request
Land
was
no
for
accommodation, or mention of his age.
Meanwhile, Hash visited the store again on February 13,
2014, and discussed what he viewed as poor work with respect to
the store layout, shelving, and stocking plans with Land.
Land
disagreed with the characterization and blamed the problem on a
lack of inventory.
It was only on February 15, 2014, that Land
emailed Winn, with a copy to Hash, about the plans that Winn and
Land had made on February 10, 2014.
The email never mentions
Land’s physical condition or any request for accommodation even
though Land maintains that he was experiencing pain during this
time frame, even lying down to stock low shelves so that no one
saw the pain that he was experiencing.3
On
February
27,
2014,
Hash
visited
the
store
again
to
discuss job expectations with Land and reset a “plan-o-gram,”
the corporate design for layout, shelving, and stocking, to show
Land how to do the work that needed to be done.
questions.
Land asked no
Ultimately, Hash felt that Land did not attempt to
accomplish what was set out under the plan and spent his time,
instead,
trying
to
prove
that
the
PIP
was
incorrect.
Hash
evaluated Land using the same standards that he used to evaluate
other assistant managers, based on tasks, to evaluate Land’s job
performance.
As
they
had
agreed,
Winn
was
taking
on
many
of
Land’s
duties during the PIP and observed that other store employees
were disgruntled and that, while Land spent 25-50 percent of his
3
While Land avers that Southern States might have instituted the
use of a stool on the floor or provided an employee to relieve
Land for work breaks and to help with lifting, there is no
record that Land ever made such a request, suggestion, or
proposal to his employer. There is no evidence before the Court
upon
the
parties’
pleadings
that
he
discussed
such
accommodations with his physicians.
time working on propane, it only took Winn 5-10 percent of his
time to complete the task.
Winn ultimately felt that Land was
not dedicated to the operations and success of Southern States
during the PIP.
Termination
of
Land’s
employment
was
finally
during the last seven to ten days of the PIP.
2014,
when
Hash
and
Sweat
were
already
discussed
On March 10,
discussing
Land’s
discharge from employment, Land sent his letters to Garcia and
Clingenpeel,
making
a
reference
to
“discrimination”
but
not
identifying a protected class or activity from which it flowed.
Only Hash and Sweat were involved in the decision to terminate
Land’s employment, with input from Garcia and Geralyn Gravett
from human resources.
Neither Winn nor Briedwell were involved
in or consulted about the termination decision.
Land’s employment was terminated on March 21, 2014.
fifty-eight years old at the time of his discharge.
He was
Winn, Hash,
Briedwell, Sweat, and Garcia were all in their fifties at that
time. A younger worker, Eric Medley, who was a cousin to Terry
Sweat’s wife, was hired to replace Land.
Ultimately, it took
three or four people two days of full time work to finish the
plan-o-grams after the termination of Land’s employment.
Land filed a charge with the Equal Employment Opportunity
Commission
against
Southern
States
claiming
employment
discrimination and retaliation based on age and disability under
the ADA and the ADEA.
The EEOC was unable to find a violation
of the statutes and dismissed his charge.
This action followed.
II.
Summary judgment is appropriate when citation to facts in
the court record, including depositions, documents, affidavits,
admissions, and other material, demonstrate there are no genuine
issues of material fact. Fed. R. Civ. P. 56 (c); Celotex Corp.
v.
Catrett,
477
U.S.
317,
322
(1987).
The
party
moving
for
summary judgment bears the initial responsibility of informing
the district court of the basis for its motion and identifying
those
portions
of
the
record
it
believes
absence of a genuine issue of material fact.
demonstrates
the
See Celotex Corp.,
477 U.S. at 323. However, “[o]nce the moving party shows that
there is an absence of evidence to support the nonmoving party’s
case,
the
evidence
nonmoving
to
party
demonstrate
must
present
that
there
significant
is
more
probative
than
some
metaphysical doubt as to the material facts.” ACLU v. Mercer
County, 240 F. Supp.2d 623, 624 (E.D.Ky. 2003) (citing Moore v.
Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993) (emphasis
added) (internal punctuation removed)). The non-moving party may
not “rely on subjective beliefs to show a genuine dispute” nor
may
they
“defeat
summary
judgment
by
conclusory
responses.”
ACLU, 240 F. Supp. 2d at 625. Moreover, “[t]he mere existence of
a scintilla of evidence in support of the plaintiff’s position
will be insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
For
the
purposes
of
this
Memorandum
Opinion
and
Order,
claims of age and disability discrimination under the Kentucky
Civil Rights Act “are analyzed in the same manner” as claims
brought under federal law.
Sharp v. Aker Plant Servs. Grp.,
Inc.,
(6th
726
F.3d
789,
797
Cir.
2013)
(analyzing
age
discrimination claim); Bryson v. Regis. Corp., 498 F.3d 561, 574
(6th Cir. 2007) (analyzing disability discrimination claim).
explained
below,
Plaintiff’s
claims
under
both
the
ADA,
As
the
ADEA, and the KCRA fail as a matter of law.
III.
As an initial matter, the Court notes that Southern States
objects to the opinion testimony relied upon by Land and offered
by his treating physician Dr. Crystal because it purports to
define
legal
terms,
draws
legal
conclusions,
and
makes
conclusions regarding liability and is, thus, inadmissible under
FRE 704(a).
The Court need not reach this matter in light of
the rationale for its decision below and declines to do so.
IV.
The Court first considers Plaintiff’s claim that he was
discharged from his employment due to a disability.
Southern
States argues that Land cannot establish that Land was disabled
at the time of his discharge or that, in any event that it knew
or had reason to know of his disability.
For the purposes of
the Court’s present analysis, it is willing to accept that Land
was “disabled” and could not perform certain activities from
June 6 to October 23, 2013.
evidence
that
Land
was
Southern States has set forth
cleared
to
return
to
work
without
restriction after October 23, 2013, but Land insists that he was
disabled with respect to his ability to stand through at least
February
13,
2014.
There
is
no
evidence,
however,
that
he
presented his employer with any formal request for accommodation
or evidence of his purported disability or limitations in the
later time period.
Under
the
ADA,
it
is
unlawful
for
an
employer
to
“discriminate against a qualified individual on the basis of
disability in regard to . . . discharge of employees . . . and
other
terms,
conditions,
and
privileges
of
employment.”
42
U.S.C. § 12112(a). Discriminating “on the basis of disability”
includes
“not
physical
or
making
mental
reasonable
limitations
accommodations
of
an
to
otherwise
the
known
qualified
individual with a disability who is an . . . employee, unless
such covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of
such covered entity.” 42 U.S.C. § 12112(b)(5)(A).
In order to establish a
prima facie
case of disability
discrimination under the ADA, an employee must show that “1) he
or she is disabled; 2) otherwise qualified for the position,
with or without reasonable accommodation; 3) suffered an adverse
employment decision; 4) the employer knew or had reason to know
of the plaintiff's disability; and 5) the position remained open
while
the
employer
sought
other
applicants
or
the
disabled
individual was replaced.” Whitfield v. Tennessee, 639 F.3d 253,
259 (6th Cir. 2011) (citing Macy v. Hopkins Cnty. Sch. Bd. of
Educ., 484 F.3d 357, 365 (6th Cir.2007)). “[I]f the plaintiff
succeeds in proving the prima facie case, the burden shifts to
the defendant ‘to articulate some legitimate, nondiscriminatory
reason
for
the
employee's
rejection.’
‘Should
the
defendant
carry this burden,’ the plaintiff must then have an opportunity
to prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination.” Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981).
“The plaintiff retains
the burden of persuasion” at all stages. Id. at 256.
The Court appreciates Southern States’ argument that Land
cannot establish a prima facie case of disability discrimination
under the ADA because, as a matter of law, he was not disabled
at the time of his discharge and, to the extent that Land was
disabled at that time, Southern States did not have knowledge of
any disability.
There is no dispute that Land had a surgery on
his right knee which resulted in restrictions or that he was
released
to
work
by
October 23, 2013.
his
physician
without
restrictions
on
After that time, there is no evidence to
support any conclusion that Land had further restrictions or
treatment
for
restrictions
his
For
support
to
knee.
that
any
matter,
request
there
for
were
no
accommodation
established by the physician who treated his lower back in the
period leading up to February 13, 2014.
Certainly, Land told
Winn of his lower back problems and pain, but Winn was not a
decision-maker
in
the
termination
process
nor
is
there
any
evidence that those involved in that process, including Hash,
Garcia, or Sweat, had information regarding Land’s potential for
back surgery or any requests for accommodation that Land had
made with respect to his back.
That
said,
the
Court
is
more
impressed
with
Southern
States’ argument that Land received the accommodations that he
requested during his period of disability following his knee
surgery and did not actually request what he now describes as
the reasonable accommodations that he should have received –
such as obtaining a stool or someone to perform lifting tasks.
The
ADA
only
requires
an
employer
to
make
“reasonable
accommodations to the known . . . limitations of an otherwise
qualified
individual
with
a
disability”
where
such
an
accommodation does not cause the employer “undue hardship.” 42
U.S.C.
§
12112(b)(5).
Employers
are
not
required
to
handle
accommodation
requests
and
discussions
perfectly,
only
reasonably and in good faith. Kleiber v. Honda of Am. Mfg.,
Inc., 485 F.3d 862 (6th Cir. 2007).
is
at
issue,
the
employee
When failure-to-accommodate
bears
the
initial
burden
of
“proposing” an accommodation and showing that it is “objectively
reasonable.” Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457
(6th Cir. 2004). The burden then shifts to the employer to show
that the accommodation “would impose an undue hardship.” Id. To
determine
whether
a
reasonable
accommodation
exists,
both
parties must participate in an “interactive process” and “do so
in good faith.” Jakubowski v. Christ Hosp., Inc., 627 F.3d 195,
202 (6th Cir. 2010); 29 C.F.R. § 1630.2(o)(3). The interactive
process,
though,
is
triggered
by
an
employee’s
request
for
accommodation. Melange v. City of Ctr. Line, 482 F. App'x 81, 86
(6th Cir. 2012)
No
one
disputes
that
Land
received
the
leave
that
he
actually requested for his knee surgery or that he was then
permitted to return to work under his doctors’ restrictions.
To
the extent that Land did not comply with those restrictions,
sometimes
example,
working
he
did
more
so
than
without
he
was
advising
supposed
his
to
work,
supervisors.
for
He
testified that he listed his working hours in accordance with
his restrictions and did not tell anyone that he was working in
excess of the restrictions imposed by his physicians due to the
condition of his knee.
Accepting that Land later indicated to
Winn that he felt back and knee pain as late as October 2013,
might have to have back surgery in a few months, and, thus,
wanted to spend more time in the office rather than on the
floor, there is evidence that he offered medical support to
advise his employer that he was disabled due to his back or for
the restrictions he proposed for any low back issues.
The Court
agrees that, in this instance and on these facts, complaining of
pain, attending doctors’ visits, and working in secret do not
constitute
Southern
requests
States
accommodation
for
did
until
not
Land
accommodations,
have
an
provided
reasonable
obligation
a
diagnosis
to
or
not.
provide
and
an
requested
specific accommodation. Kaltenberger v. Ohio Coll. of Podiatric
Med., 162 F.3d 432, 437 (6th Cir. 1998); Crocker v. Runyon, 207
F.3d
314,
319-20
(6th
Cir.
2000);
Burns
v.
Coca-Cola
Enterprises, Inc., 222 F.3d 247, 258 (6th Cir. 2000).
For
example,
the
Sixth
Circuit
held
that
an
employee’s
general request to transfer “to a vacant position in a wellventilated and allergen-free workstation that would not ‘trigger
asthma or cause a drop in peak flow’” was too vague; so too is
Land’s complaint that the concrete floor aggravated his back and
his knee. See Cassidy v. Detroit Edison Co., 138 F.3d 629, 635
(6th Cir. 1998).
At best, Land made generalized statements to
Winn that he thought he should sit and take a break from time to
time. There is no allegation or assertion that anyone ever told
Land he could not sit and take breaks.
Land argues that Winn
made facial expressions which he interpreted as discouraging him
from requesting accommodations and that he believed Winn was not
sincere when he asked if land could handle the store.
His
subjective belief does not undermine the fact that Land never
requested the accommodation.
Ultimately, Southern States argues that it discharged Land
from his employment for poor job performance, a legitimate nondiscriminatory reason.
assessments
of
his
While Land disagreed with the negative
performance
and
will
rely
upon
positive
comments from his direct supervisor, Winn, “the law does not
require employers to make perfect decisions, and an employee’s
mere disagreement with an employer’s subjective evaluation of
his performance is not relevant in an age-discrimination claim.”
Browning v. Dep't of Army, 436 F.3d 692, 698 (6th Cir. 2006).
Moreover, if anything, this case presents a mere conflict in
personality and managerial style, which is a “valid reason for
discharge
by
an
employer.”
Harker
v.
Fed.
Land
Bank
of
Louisville, 679 S.W.2d 226, 230-31 (Ky. 1984) (citing Kerwood v.
Mortgage
Bankers
Ass'n
of
America,
Inc.,
494
F.Supp.
1298
(D.C.1980); Ackerman v. Diamond Shamrock, 670 F.2d 66 (6th Cir.
1982)).
An
employee’s
continued
refusal
to
“conform
to
his
supervisor’s
managerial
technique”
is
a
legitimate,
nondiscriminatory reason for termination. Id.
Land felt Winn, Hash, and Briedwell were bad managers, and
the
record
establishes
that
he
disagreed
with
any
negative
assessments of his performance, instead blaming other workers or
decisions made at the corporate level.
Land acknowledges that
Briedwell told him repeatedly through 2012 and 2013 that he
needed to improve store standards in the interior and exterior
of the store and to spend more time out of his office, but Land
disagreed
with
the
directives
he
was
given
or
blamed
other
workers or Winn for the issues. Even in Land’s appraisals, which
were largely positive, his direct supervisor, Winn, noted that
Land needed to spend more time on the floor. When Hash began
working with Land, Land disagreed with the way Hash prioritized
different aspects of the store, but he acknowledges that Hash
communicated priorities to him.
Once Land’s PIP was instituted, Land wrote lengthy missives
challenging each and every expectation and directive explained
to him, and essentially attempted to re-write his plan without
involving the supervisor who had actually instituted the PIP,
Hash. Land nevera actually asked Hash any questions or attempted
to explain any issues with the PIP to Hash during subsequent
store visits. Even though Winn took on some of Land’s work, the
store standards did not improve, and Land did not demonstrate an
effort
to
improve
in
his
job
performance.
Without
something
more, this Court cannot say that Southern States made anything
but a reasonable and legitimate business decision to discharge
Land due to Land’s failure to improve his performance, continued
disagreement with the managerial techniques of his supervisors,
and deficient managerial skills.
Ultimately, Land does not present evidence from which a
reasonable juror could conclude that poor performance was not
the real reason that Southern States discharged Land and that
unlawful discrimination or retaliation was the real reason.
“To
demonstrate
the
pretext,
a
plaintiff
must
show
both
that
employer's proffered reason was not the real reason for its
action, and that the employer's real reason was unlawful.” Ford
Motor Co., 782 F.3d at 767 (citing Hicks, 509 U.S. at 515;
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148
(2000)).
The temporal proximity between the date of Land’s knee
surgery and the first documentation of poor work performance by
Hash and the institution of meetings meant to improve his work
performance
cannot
be
ignored.
However,
“temporal
cannot be the sole basis for finding pretext.”
proximity
Ford Motor Co.,
782 F.3d at 767 (quoting Donald v. Sybra, Inc., 667 F.3d 757,
763 (6th Cir. 2012)).
Moreover, courts “look at the facts as
they appear to the person making the decision to terminate [the
employee],” not at “the employee's subjective [beliefs].” Id. at
768 (citing Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220,
1231
subjective
(10th
Cir.2000).
An
skepticism
regarding
employee’s
the
truth
of”
“unexpressed
a
supervisor’s
motivation does not create “a triable issue as to pretext.” Id.
(quoting Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 462 (6th
Cir.2004)). Meetings to discuss an employee’s job expectations
and
performance
do
“not
constitute
harassment
simply
because
they cause the employee distress.” Id. (quoting Keever v. City
of Middletown, 145 F.3d 809, 813 (6th Cir.1998)).
To
the
extent
that
he
felt
that
Briedwell
and
Winn
disapproved of his taking leave, actions by nondecisionmakers
cannot
alone
prove
pretext.
Neither
can
decisionmakers'
statements or actions outside of the decisionmaking process.”
Ford
Motor
Corp.,
161
Co.,
782
F.3d
F.3d
363,
at
369
768
(6th
(citing
Cir.1998);
Bush
v.
Rowan
Dictaphone
v.
Lockheed
Martin Energy Sys., Inc., 360 F.3d 544, 550 (6th Cir. 2004)).
Neither
Briedwell
nor
Winn
were
involved
in
the
termination
decision.
Further, to the extent that Land claims that his employment
was
terminated
activity,
activity.
he
has
in
retaliation
failed
to
for
provide
engaging
evidence
in
of
a
protected
protected
To establish a prima facie case of retaliation in
general, Land must show that “(1) [he] ... engaged in protected
activity, (2) the employer knew of the exercise of the protected
right, (3) an adverse employment action was subsequently taken
against the employee, and (4) there was a causal connection
between
the
protected
activity
and
the
adverse
employment
action.” Banks v. Bosch Rexroth Corp., 15 F. Supp.3d 681, 693
(E.D. Ky. 2014) (citing Hamilton v. Gen. Elec. Co., 556 F.3d
428, 435 (6th Cir.2009)).
If anything, he wrote a letter on
March 10, 2014, asserting that he was the subject of unspecified
“discrimination,” but the record evidence demonstrates that the
decisionmakers
were
already
planning
to
terminate
his
employment.
To the extent that he his asserting retaliation for seeking
and taking leave or accommodation for his post-surgical knee
issues, his claim must fail as well.
In order to satisfy the
causal element for disability retaliation, the interval between
a protected activity and an adverse employment action must be
less than two months. Asmo v. Keane, Inc., 471 F.3d 588, 594
(6th
Cir.
2006)
(construing
Pregnancy
Discrimination
Act).
Land’s last known accommodation ended on October 23, 2013, when
he was released to work without restrictions. Nearly five months
passed
between
Similarly,
proximity
the
in
Land’s
Sixth
time,
release
Circuit
less
than
to
work
and
has
held
that
three
months,
his
only
will
discharge.
a
close
allow
an
inference of retaliation under the FMLA. Seeger v. Cincinnati
Bell Tel. Co., LLC, 681 F.3d 274, 283 (6th Cir. 2012). This case
exceeds that time frame, as Land’s PIP was implemented over five
months after his July 2, 2013, return to work following his knee
surgery and his termination occurred after an over six-and-ahalf month gap.
Accordingly, the record does not support a contention that
the
proffered
reason
for
Land’s
termination
was
pretext
for
disability discrimination, retaliation arising out of a claim of
disability or a request for leave, or, as explained below, any
other kind of unlawful motive.
V.
To the extent that Land avers that his discharge was due to
his age rather than poor job performance, his claim fails as a
matter of law.
To establish a prima facie case, Land must show
that he (1) was a member of a protected class of persons
(i.e.,
persons 40 years of age or over), (2) was discharged, (3) was
qualified for the position held, and (4) was replaced by someone
outside of the protected class. Allen v. Highlands Hosp. Corp.,
545 F.3d 387, 394 (6th Cir. 2008) (citing Minadeo v. ICI Paints,
398 F.3d 751, 764 (6th Cir.2005)); Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 350 (6th Cir.1998) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)). “Once a plaintiff
satisfies
his
or
her
prima
facie
burden,
the
burden
of
production shifts to the employer to articulate a legitimate
nondiscriminatory reason for the adverse employment action. If
the employer meets this burden, the burden of production shifts
back
to
the
plaintiff
to
show
that
the
employer's
nondiscriminatory explanation is a mere pretext for intentional
age discrimination.” Allen, 545 F.3d at 394 (internal citations
omitted).
Assuming that he can make a prima facie case, the evidence
establishes
that
performance.
Land
was
terminated
for
unsatisfactory
job
Land cannot establish pretext based on (1) Land’s
allegation that Briedwell told Land to “step up and do more or
else we will hire someone younger and pay them a lot less” and
(2) Land’s subjective impression that Hash’s War Horse analogy
was
about
age
discrimination,
and
about
“[i]solated
Land.
and
In
the
ambiguous
context
comments
of
age
are
too
abstract, in addition to being irrelevant and prejudicial, to
support a finding of ... discrimination.” Berry v. Frank's Auto
Body Carstar, Inc., 495 F. App'x 623, 626-27 (6th Cir. 2012)
(quoting Ercegovich, 154 F.3d at 355).
No reasonable juror
could
reason
conclude
that
Southern
States’
for
Land’s
termination was a pretext based on the record.
Further,
Briedwell’s
comment
cannot
carry
Land’s
burden
because Briedwell was not involved in the decision to terminate
Land. As a matter of law, “statements by nondecisionmakers, or
statements by decisionmakers unrelated to the decisional process
itself [cannot] suffice to satisfy the plaintiff's burden ...”
of demonstrating animus. Ford Motor Co., 782 F.3d at 768 (citing
Bush, 161 F.3d at 369; Price Waterhouse v. Hopkins, 490 U.S.
228, 277 (1989)). Further, it was made in 2012, well over a year
before Land’s termination in 2014.
Inc.,
986
F.2d
1020,
1026
statements
made
nearly
a
(6th
year
See
Cir.
before
Phelps v. Yale Sec.,
1993)
an
(holding
alleged
that
adverse
employment action are considered to have been made too far away
in time to have influenced a termination decision). Accordingly,
it cannot be used to prove pretext.
Similarly,
Hash’s
War
Horse
analogy
cannot
establish
pretext. A reasonable juror cannot read discriminatory animus
into the War Horse analogy based solely on Mr. Land’s subjective
belief that the analogy was directed at him. Phelps, 986 F.2d at
1025. For example, in Phelps, the Sixth Circuit held that a
statement made directly to the plaintiff that she was too old to
be a secretary and that her fifty-fifth birthday was a cause for
concern was too isolated and ambiguous to show pretext.
Id.
Here, the analogy was made to a room of people, and Hash did not
expressly identify Land in making the remark. Land’s subjective
impression
that
the
analogy
was
directed
to
him
is
not
sufficient to allow a reasonable juror to establish pretext.4
4
The Court sees no reason to engage with Plaintiff’s
argument that he was actually terminated to make room for a
cousin of the wife of his regional manager. Even assuming that
happened,
nepotism
is
not
illegal
discrimination
and,
Plaintiff’s claim for discrimination under the ADEA fails
as a matter of law.
VI.
Nor
has
Land
demonstrated
that
hostile work environment under the ADA.
he
was
subjected
to
a
In order to support a
finding of a hostile work environment, the evidence must show a
work
setting
“permeated
with
discriminatory
intimidation,
ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an
abusive working environment.” Plautz v. Potter, 156 F. App’x
812, 818-19 (6th Cir. 2005) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)). To evaluate this issue, courts
accordingly, cannot serve as evidence of discrimination or of
pretext. Although nepotism may not be “fair,” as Southern States
explains, it is not illegal discrimination that is actionable
under the ADEA, the ADA, or Title VII. E.g., White v. Columbus
Metro. Hous. Auth., 429 F.3d 232, 246 (6th Cir. 2005); Betkerur
v. Aultman Hosp. Ass'n, 78 F.3d 1079, 1096 (6th Cir. 1996);
Trentham v. K-Mart Corp., 806 F. Supp. 692, 703 (E.D. Tenn.
1991) aff'd, 952 F.2d 403 (6th Cir. 1992).
In order “[t]o
demonstrate pretext, a plaintiff must show both that the
employer's proffered reason was not the real reason for its
action, and that the employer's real reason was unlawful.”
E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015)
(citing Hicks, 509 U.S. at 515; Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 148 (2000)). As a matter of clear,
well-established law, employment decisions based on familial
favoritism,
while
perhaps
unfair,
are
not
unlawful
discrimination. As nepotism is not unlawful discrimination, it
cannot
carry
Land’s
burden
of
demonstrating
illegal
discrimination, a hostile work environment, or that the reason
for his termination - a poor relationship with management and
inadequate job performance – was a pretext for illegal
discrimination.
consider
the
“frequency
of
the
discriminatory
conduct;
its
severity; whether it is physically threatening or humiliating,
or
a
mere
interferes
offensive
with
an
utterance;
employee's
and
work
whether
it
unreasonably
performance.”
Id.
(citing
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)).
Here, nothing in the record reflects any physical threats or
that
Land
was
humiliated,
mocked
or
teased
for
having
a
disability. While Briedwell and Hash certainly had conversations
with
Land
about
his
poor
job
performance,
“[c]onversations
between an employee and his superiors about his performance do[]
not constitute harassment simply because they cause the employee
distress.” Keever v. City of Middletown, 145 F.3d 809, 813 (6th
Cir. 1998). There is simply no evidence of severe or pervasive
conduct
which
environment.
As
might
a
be
conceivably
matter
of
law,
no
create
a
hostile
reasonable
juror
work
could
conclude that Land was subject to a hostile work environment on
the record evidence, and this claim must fail.
VII.
Finally, Land’s breach of contract claim against Southern
States
fails.
“[I]n
the
absence
of
a
specific
contractual
provision to the contrary, employment in Kentucky is terminable
at-will, meaning that an employer may ordinarily discharge an
employee “for good cause, for no cause, or for a cause that some
might
view
as
morally
indefensible.”
Miracle
v.
Bell
Cnty.
Emergency Med. Servs., 237 S.W.3d 555 (Ky. Ct. App. 2007).
Land
has identified no agreement by and between the parties, and he
does not argue, for example, that the employee handbook or his
information
and
non-solicitation
employment agreement.
agreement
constituted
an
Without more, his claim fails as a matter
of law.
VIII.
For all of the reasons stated above, Plaintiff’s claims
cannot survive as a matter of law, and Defendant’s Motion for
Summary Judgment is well-received.
Accordingly, IT IS ORDERED:
(1) that Defendants’ Motion for Summary Judgment [DE 64] is
GRANTED.
Judgment will issue by separate order.
IT IS FURTHER ORDERED:
(2)
Monday,
that
the
September
final
12,
pretrial
2016,
is
conference
CONTINUED
further order of the Court.
This the 9th day of September, 2016.
scheduled
GENERALLY,
for
pending
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