Jackson v. Aulick Chemical Solutions, Inc.
Filing
36
MEMORANDUM OPINION & ORDER: 15 MOTION for Summary Judgment is DENIED. Signed by Judge Joseph M. Hood on 1/5/2018.(SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
WIL JACKSON,
)
)
Plaintiff,
)
Civil No. 5:16-cv-452-JMH
)
v.
)
)
AULICK CHEMICAL SOLUTIONS, INC., ) MEMORANDUM OPINION & ORDER
)
Defendants.
)
)
*****
This case is before the Court on Defendant’s Motion for
Summary
Judgment
[DE
15].
For
the
reasons
stated
herein,
Defendant’s motion will be denied.
I.
FACTUAL BACKGROUND
This case presents an ironic story: a company outing meant to
boost
morale
and
teamwork
resulted
in
an
injury
that,
in
Plaintiff’s view, ultimately led to his termination and this
acrimonious lawsuit.
The parties agree on very few of the facts which underlie
this action.
Wil Jackson, an engineer now age 72, began working
for Defendant Aulick Chemical Solutions, Inc. (ACS) in January
2010.
ACS is a manufacturer of water and wastewater treatment
chemicals and industrial compounds.
Jackson was hired on as a
sales and customer representative working out of his home in
Tennessee.
In February 2016, Tim Aulick, owner of ACS, informed
Jackson he would be reassigned to a research and development
engineering position.
The base pay and benefits were equal, but
unlike the sales position, the engineering position did not bring
with it the promise of commission, which was as much as $10,000 or
more per year. It is not surprising, then, that Jackson viewed
this as a less desirable position.
Throughout his employment with
ACS, Jackson maintained a work-journal of sorts that the parties
refer to as his “daily log.”
This daily log was something Jackson
kept for his personal use and detailed Jackson’s services, business
communications, business travel, and more.
The daily log was not
required by ACS or turned in for purposes of billing or pay.
Jackson’s daily log heavily implies that he maintained it, at least
in part, for what is often referred to in the vernacular as “CYA”
(“Cover Your Ass”).1
For example, Jackson’s daily log repeatedly
contained the heading: “FOR MY RECORDS AND JUSTIFICATION IF & AS
NEEDED.”
(DE 15, Ex. B, Daily Logs).
On June 23, 2016, Jackson fell at the company team-building
retreat.
Jackson asserts he injured his hip at this event, an
assertion Defendant questions.
However, for purposes of this
motion, the Court assumes Jackson’s allegations of his injury and
1
One can imagine many other reasons Jackson kept such a log: travel tax
deductions, client service records, and ensuring prompt responses to
communications, just to name a few. The Court notes that Jackson appears to
keep them for “CYA” purposes because it suggests Jackson anticipated future
problems with ACS or even, possibly, litigation.
2
treatment are true and were caused by the fall, as there are
several instances in the record indicating that he was injured or
complained of pain in the days following the fall. (DE 15, Ex. B,
p. 25; Ex. A, Depo. of Wil Jackson, p. 58 – 63; 72).
On July 17, 2016, Jackson sought medical treatment for pain
at
the
emergency
room.
Ibuprofen and discharged.
He
was
given
prescription-strength
He took two days off work, during which
he had a pleasant email exchange with Troy Taubert (head of
chemical sales and technologies at ACS) and Aulick about his
situation, filing a workers’ compensation claim, and his need for
time off.
Aulick believed the treatment to be minor and therefore
requested that Jackson forward the medical bills to ACS for payment
directly,
rather
than
filing
a
workers’
compensation
claim.
Jackson, however, recalls Aulick pressuring him not to file a
workers’ compensation claim, and states Aulick warned Jackson he
“would regret this” if he went forward with filing a workers’
compensation claim. (DE 15, Ex. A, Depo. of Wil Jackson, p. 58 –
63; 72).
On August 1, 2016, Taubert informed Jackson that he was
terminated. ACS gave Jackson six weeks’ severance pay. The reason
for this termination is the crux of the dispute between the
parties.
Jackson contends he was fired for filing a workers’
compensation
claim;
ACS
contends
3
he
was
fired
for
poor
job
performance (specifically, for the loss of the CUB client in
Jackson’s territory), economic hardship which resulted from that
poor job performance, and/or because he was “unwilling to work
with them on their plan to transition him to a new position.”
(DE
15, Mem. in Supp. of Mot. for Summ. J., pg. 20).
II.
JURISDICTION AND STANDARD
A. Applicable Law
Although not raised by the parties, the Court must set out
its basis for subject matter jurisdiction in this case. Plaintiff
filed this case in federal court originally (not removed to federal
court) pursuant to diversity jurisdiction and alleges only one
cause of action: violation of the Kentucky Workers’ Compensation
Act.
Jurisdiction is not challenged by Defendant and is found
under 28 U.S.C. § 1332 as the parties are diverse and the amount
in controversy is met as established during a hearing be Magistrate
Judge Wier. (DE 12).
Federal courts sitting in diversity apply federal procedural
law.
Hanna v. Plumer, 380 U.S. 460, 465 (1965).
The substantive
law of the forum state governs the claims asserted.
Erie R. Co.
v. Tompkins, 304 U.S. 64 (1938); Moore, Owen, Thomas & Co. v.
Coffey, 992 F.2d 1439 (6th Cir. 1993).
Accordingly, the Court
will evaluate the Motions in accordance with the Federal Rules of
Civil Procedure while applying substantive Kentucky law to the
underlying claim.
4
Plaintiff brings a single cause of action pursuant to the
KWCA.
The Act provides that no “employee shall be harassed,
coerced,
discharged,
or
discriminated
against
in
any
manner
whatsoever for filing and pursuing a lawful claim” for workers’
compensation benefits.
KRS 342.197(1).
Kentucky courts apply a modified version of the familiar
McDonnell-Douglas burden-shifting scheme to retaliation claims.
Ky. Ctr. For Arts v. Handley, 827 S.W.2d 697, 701 (Ky. App. 1991);
Chavez v. Dakkota Integrated Sys., LLC, 2011 WL 2148373 at *13
(W.D.Ky. May 31, 2011); Hodge v. Dollar General, 2011 WL 3880486
at *8 (E.D.Ky. Aug. 29, 2011).
A plaintiff can establish a prima
facie case of workers’ compensation retaliation through “proof
that: (1) he engaged in a protected activity; (2) the defendant
knew that the plaintiff had done so; (3) adverse employment action
was taken; and (4) that there was a causal connection between the
protected activity and the adverse employment action.” Dollar Gen.
Partners v. Upchurch, 214 S.W.3d 910, 915-17 (Ky. App. 2006). “The
fourth element of the test requires the employee to demonstrate
that her engagement in a protected activity was a substantial and
motivating factor but for which the employee would not have been
discharged.” Chavez v. Dakkota Integrated Sys., LLC, 832 F.Supp.2d
786, 800–01 (W.D.Ky. 2011)(quotation marks and citation omitted).
Upon the plaintiff proving a prima facie case for workers’
compensation retaliation, the burden shifts to the defendant “to
5
show
a
non-retaliatory
decision.”
reason
for
the
Dollar Gen. Partners at 16.
adverse
employment
If the defendant can
satisfy its burden, the plaintiff must show by a preponderance of
the evidence that the proffered explanation is a pretext for the
unlawful retaliation.
B.
Id.
Standard of Review
Summary judgment is appropriate when there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a).
If there is
a dispute over facts that might affect the outcome of the case
under governing law, then entry of summary judgment is precluded.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The
moving party has the ultimate burden of persuading the court that
there are no disputed material facts and that he is entitled to
judgment as a matter of law.
Id.
Once a party files a properly supported motion for summary
judgment by either affirmatively negating an essential element of
the
non-moving
party’s
claim
or
establishing
an
affirmative
defense, “the adverse party ‘must set forth specific facts showing
that there is a genuine issue for trial.’”
Fed. R. Civ. P. 56(e)).
Id. at 250 (quoting
“The mere existence of a scintilla of
evidence in support of the [non-moving party’s] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [non-moving party].”
6
Id. at 252.
III.
ANALYSIS
Defendant puts forth three arguments: first, that Jackson
fails to establish a causal connection between the protected
activity and the termination, thus failing to prove a prima facie
case of retaliation.
Second, Defendant argues that even if the
Court
proved
finds
articulated
Jackson
multiple
terminating him.
his
legitimate,
prima
facie
case,
non-retaliatory
ACS
has
reasons
for
Finally, Defendant asserts Plaintiff cannot show
that the proffered reasons for the firing were pretextual, largely
because Plaintiff does not dispute that ACS lost a large client in
Plaintiff’s sales territory and that he received an offer to work
as an engineer.
Defendant does not dispute that Plaintiff has proven the first
three elements of a prima facie case of workers’ compensation
retaliation.
The Court disagrees with Defendant, however, and
holds that Plaintiff has also proven the fourth element, a causal
connection.
The undisputed timeline of events in this case is that ACS
lost CUB as a client at some point in 20162, that ACS management
discussed with Jackson moving him to an engineering role in
February 2016, with a transition to occur over the next few months
or year, that on July 12, 2016, ACS management and Jackson had a
2
There is disagreement the record as to whether ACS lost CUB as a customer in
“early 2016” or “summer time” or just days before Jackson’s termination.
7
cordial exchange about the upcoming transition, that ACS learned
of the workers’ compensation claim on July 17, 2016, and ACE
terminated Jackson on August 1, 2016.
In the July 12, 2016, email
exchange, Taubert attached a job description of the new position,
asked Jackson to contact him with any questions, wished him happy
birthday, and told Jackson he was “excited” to “explore bringing
new solutions to environmental problems” with Jackson.
Nothing in
this email exchange even remotely suggests that Jackson’s job was
in jeopardy or that the new position was contingent upon Jackson
accepting the position, or upon accepting the position in writing
within a certain timeframe, or upon his sales performance and
customer retention in July 2016.
ACS learned of the workers’
compensation claim five days after this affable, upbeat email
exchange, and 15 days later, terminated Jackson.
The facts of this case demonstrate arguably a close temporal
proximity which alone may raise the inference that Jackson was
fired due to his protected activity:
Circumstantial evidence of a causal connection
is evidence sufficient to raise the inference
that [the] protected activity was the likely
reason for the adverse action . . . In most
cases, this requires proof that (1) the
decision-maker responsible for making the
adverse decision was aware of the protected
activity at the time that the adverse decision
was made, and (2) there is a close temporal
relationship between the protected activity
and the adverse action. But a close temporal
proximity alone may be sufficient to raise the
8
inference.
Kentucky Dept. of Corrections v. McCullough, 123 S.W.3d 130, 135
(Ky.
2003)(internal
quotation
marks
and
citations
omitted).
Fifteen days is sufficiently close temporal relationship to prove
a causal connection.
See Dollar General Partners v. Upchurch, 214
S.W.3d 910, 916 (Ky. App., 2006) (five months was sufficiently
close in time).
Furthermore, Jackson testified that Aulick told
him on July 27, 2016, that he “would regret” filing a workers’
compensation
claim,
supporting
his
claim
that
the
workers’
compensation claim resulted in his termination a few days later.
ACS has provided several neutral, non-retaliatory reasons for
terminating Jackson on August 1, 2016. ACS claims it fired Jackson
on August 1, 2016, because: (1) of poor sales performance3; (2)
Jackson did not accept the engineering job position4, (3) ACS lost
CUB, one of Jackson’s service customers5; and (4) of economic
hardship requiring a reduction in workforce6.
Although these
reasons are non-retaliatory, they are insufficient to warrant
summary judgment in light of the facts in the record supporting
Plaintiff’s claims of pretext.
3
DE 16,
Taubert,
4 DE 16,
Taubert,
5 DE 16,
Taubert,
6 DE 15,
Ex. 3, Depo. of Tim Aulick, p. 55; DE 16, Ex. 6, Depo. of Troy
p. 35; DE 15, Mem. in Sup. of Motion for Summ. J., p. 16-17.
Ex. 3, Depo. of Tim Aulick, p. 55; DE 16, Ex. 6, Depo. of Troy
p. 35; DE 15, Mem. in Sup. of Motion for Summ. J., p. 17
Ex. 3, Depo. of Tim Aulick, p. 55; DE 16, Ex. 6, Depo. of Troy
p. 35
Mem. in Sup. of Mot. for Summ. J., p. 15.
9
Plaintiff has presented enough evidence to convince this
Court that the proffered reasons are very likely pretextual, and
that there are sufficient disputes as to the material facts of
this case to defeat the summary judgment motion.
Defendant’s
proffered
reasons
are
flimsy,
In fact, some of
even
nonsensical.
Taking each in turn:
(1)
It
Poor sales performance
does
appear
ACS
had
concerns
with
Jackson’s
sales
performance for at least six months preceding the termination,
which is why ACS planned for Jackson to transition to a non-sales,
engineering
position.
However,
ACS
offers
absolutely
no
explanation as to why “poor sales performance” supports firing
Jackson on August 1, 2017, when Taubert and Aulick had apparently
been planning to address this concern by transitioning Jackson to
a non-sales position since February 2016.
Taubert wrote Jackson
a very positive email expressing how “excited” Taubert was over
the new role Jackson was to have in the company on July 12, 2016.
Plaintiff has presented a genuine issue of fact as to whether this
reason for the termination is pretextual.
(2)
Jackson did not accept the engineering position
This proffered reason for Jackson’s termination defies logic
and common sense viewed in light of the evidence in the record.
The July 12, 2016, email correspondence ACS relies on to argue
10
that Jackson “failed to accept a modified job proposal” is as
follows:
Taubert to Jackson, 9:14 a.m.:
Hey Wil:
Please see the attached Job description.
I’ll be in Knoxville next week and we can
discuss any questions you have.
Also the office forwarded me a leave
request from you. When will you be returning
from leave?
Thanks.
Jackson to Taubert, 2:23 p.m.:
Troy,
It’s just for that Friday [one day]. My
birthday
is
July
17th
and
my
oldest
granddaughter’s is the 25th. We celebrate both
on the same day. That’s why Karen and I are
going down to Tega Cay on that Friday.
Thanks for your consideration. I’m
looking forward to our meeting
Taubert to Jackson, 8:53 p.m.:
Happy early birthday Wil. Have a good time on
your day off.
Great. Me too. I’m excited we get to explore
bringing new solutions to environmental
problems.
(DE 15, Ex. 7).
A job description detailing the engineering
position they previously discussed was an attachment to the email.7
Taubert testified that a “big” “factor in the dismissal” was that
Jackson
“never
replied
to
my
correspondence
accepting
that
position or not accepting that position[,]” referring to the July
7
Jackson testified that a paper copy of that job description was provided to
him prior to his injury as well. (DE 16, Depo. of Wil Jackson, p. 82-83).
11
12, 2016, email exchange quoted in its entirety above.
Ex. 6, Depo. of Troy Taubert, p. 16, 19-25).
(DE 16,
It is clear that
Jackson did respond to Taubert’s email, telling him he was “looking
forward” to their meeting, at which Taubert had suggested they
“discuss any questions” Jackson had about the job description.
It
is important to note that this meeting to “discuss any questions”
never occurred. When asked whether the July 12 email was the offer
to which Taubert expected an “acceptance” in response, Taubert
answered that it was “the details of the position.”
Id. at 24.
Aulick testified he did not know if an offer was made to Plaintiff.
(DE 16, Ex. 3, Depo. of Tim Aulick, p. 36).
Oddly, Taubert
testified he expected to receive a response to the July 12 email
that said Jackson would “accept the position” and “was working on
these [research] topics”—research topics which Taubert said he
proposed to Jackson in some other, earlier email which was not
made part of the record before the Court.
Troy Taubert, p. 16, 26-25).
(DE 16, Ex. 6, Depo. of
Taubert could not recall whether
Jackson was ever told his continued employment was conditioned on
accepting the offer by taking some affirmative action, such as
responding to the email.
The best Taubert could explain was that
he felt it was “implied” in the July 12 email.
The defense relies heavily on Jackson’s lack of a (second)
response to the July 12 email as a “failure” or “unwilling[ness]”
to accept the new engineering position.
12
(DE 15, Mem. in Supp. of
Mot. for Summ. J., p. 18).
Defendant also relies on Jackson’s
testimony that he was not content with the job proposal when he
first discussed it with Aulick in May 2016.
Jackson testified he
was concerned about having to relocate to Nicholasville, Kentucky,
from his home in Tennessee, and about the pay cut that ACS
proposed, as well as about the complex and dangerous nature of the
project on which he was to work.
Jackson also testified, however,
that he:
indicated on more than one instance that [the
engineering position] was something [he] would
look into or consider accepting contingent
upon them defining things that [they]’ve
already discussed such as how does this
facility get built, who is responsible for it,
where [does he] actually do this work, who is
providing the equipment to do it with, the
safety
OSHA
requirements,
the
OSHA
requirements.
(DE 16, Ex. 1, Depo. of Wil Jackson, p. 115).
Based on Jackson’s
list of questions about the position, Taubert’s email that they
planned to meet to “discuss any questions,” and Jackson’s response
that he was looking forward to the meeting, a jury could find this
reason for the termination was pretextual because no acceptance
was anticipated in response to Taubert’s email.
(3)
The loss of CUB, a large customer
ACS contends it terminated Jackson because its customer, CUB,
decided to take its business to a competitor, and CUB was one of
Jackson’s service accounts.
On its face, this proffered reason is
13
the most convincing of all of ACS’s justifications for firing
Jackson; however, there remains sufficient proof that a jury could
find this, too, was pretext for a retaliatory firing.
First, the Court notes there is evidence in the record to
support Plaintiff’s claim that he was not the reason that CUB left
ACS and that ACS knew he was not the reason.8
Thus, it would make
little sense for him to be fired for the loss of that customer.
Second, Taubert and Aulick provide differing accounts of what
transpired with the loss of CUB as a customer and how it impacted
the decision to fire Plaintiff.
Taubert cited the loss of CUB as
the “the focus of why Mr. Jackson was terminated,” while Aulick
testified he did not know why CUB ceased to be a customer of ACS
and that he did not know if it was Plaintiff’s fault. (DE 16, Ex.
5, Depo. of Troy Taubert, p. 27; Ex. 2, Depo. of Tim Aulick, pp.
26-28).
Finally, it is a stretch to argue that the loss of CUB was
the
reason
for
Plaintiff’s
termination
on
August
1,
2016,
8
Plaintiff submitted Affidavits from the employees at CUB with knowledge of
the situation, and both said CUB took its business to an ACS competitor for
reasons unrelated to Plaintiff. (DE 16, Ex. 7 and Ex. 8, Affs. Of Dan Hawkins
and Joe Brock).
Taubert and Aulick knew that in 2016, sometime prior to
Plaintiff’s injury, CUB bid out the work that ACS typically performed for it,
because ACS also bid on the contract. Taubert said he felt Jackson did not
maintain the relationship with CUB well, but he also testified the
representative from CUB, Joe Brock, told him CUB was going with another company
because of technical issues with ACS’s products and was specially not because
of anything Jackson had done. Regardless of whether that was true (as it is
hearsay), it casts doubt on Taubert’s assertion that he believed Jackson caused
the loss of the CUB account and that was the primary reason for the termination.
(DE 16, Ex. 5, Depo. of Troy Taubert, pp. 31-35).
14
coincidentally 15 days after filing a worker’s compensation claim.
Taubert and Aulick testified CUB bid out the services ACS provided
early in 2016; at that time they would have been on notice that
CUB was at least considering using another vendor.
Taubert also
testified he knew that prior to May 2016 there had been “animosity”
between CUB and ACS, even as early as sometime in 2015.
Ex. 5, Depo. of Troy Taubert, pp. 29-30).
not
warrant
firing
coincidentally
15
Plaintiff
days
after
until
ACS
(DE 16,
Yet, these issues did
August
learned
1,
of
2016,
his
only
workers’
compensation claim.
The Courts finds that a genuine issue of material fact exists
as to whether the loss of CUB as a customer was a legitimate,
nonretaliatory reason for terminating Plaintiff, or whether this
proffered reason is purely pretextual.
(4)
Economic hardship requiring a reduction in workforce
Defendant’s final proffered reason for terminating Plaintiff
is that upon the loss of CUB and otherwise slow sales growth in
Plaintiff’s
territory,
continue to employ him.
it
was
not
economically
feasible
to
This makes little sense in light of the
proposed transition to a non-sales position as early as February
2016.
It is possible that ACS’s financial position deteriorated
throughout 2016 requiring a reduction in the workforce on August
1, 2016.
This is dubious, however, because after Plaintiff’s
termination, ACS filled Jackson’s sales position and filled the
15
proposed new engineering position.
A jury could find that this
proffered reason was pretext for a retaliatory firing.
IV.
CONCLUSION
As stated herein, Plaintiff has presented sufficient evidence
of
a
genuine
issue
of
material
fact
regarding
whether
his
termination was retaliatory in violation of Kentucky law to survive
summary judgment.
Accordingly, Defendant’s Motion for Summary
Judgment is DENIED.
This 5th day of January, 2018.
16
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