Spaw v. AMCOR Rigid Plastics USA, LLC

Filing 29

MEMORANDUM OPINION & ORDER: IT IS ORDERED as follows: (1) Deft AMCOR Rigid Plastics USA, LLC's 24 MOTION for Summary Judgment is hereby GRANTED; (2) Claims against Deft AMCOR Rigid Plastics USA, LLC, are hereby DISMISSED WITH PREJUDICE; and (3) Deft AMCOR Rigid Plastics USA, LLC, is hereby DISMISSED as a party to this action. Signed by Judge Joseph M. Hood on 09/06/2019 (MDC) cc: COR; CD; JC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
JEFFREY C. SPAW,
Plaintiff,
v.
AMCOR RIGID PLASTICS USA, LLC,
Defendant.

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Civil Case No.
5:18-cv-230-JMH
MEMORANDUM OPINION AND ORDER

***
This matter is before the Court upon Defendant Amcor Rigid
Plastics USA, LLC’s (“Amcor”)1 motion for summary judgment [DE 24].
Plaintiff Jeffrey Spaw, a former Amcor employee, brought this
action

alleging

he

was

terminated

in

violation

of

the

Age

Discrimination in Employment Act (“ADEA”) and the Kentucky Civil
Rights Act (“KCRA”). [DE 1]. The Court, having reviewed the motion,
the time for Spaw to file a response having lapsed, and being
otherwise sufficiently advised, this matter is ripe for review.
I.

Factual and Procedural Background

Amcor hired Spaw to work at a plant located in Nicholasville,
Kentucky in June 2011. [DE 1 at 1-2]. Following a series of

The Defendant notified the Court that it recently changed its
name to Amcor Rigid Packaging USA, LLC [DE 24 at 1, fn. 1, PageID
#223]. For the purposes of this order, the Court will use the
above-styled docket name.
1

1 

reprimands, Spaw’s employment with Amcor was terminated on May 8,
2017. [DE 1 at 2-7]. At the time of his termination, Spaw was
fifty-four years old. [DE 1 at 2]. Because Spaw believed he was
terminated based on his age, he filed a charge of age-based
discrimination

under

the

ADEA

with

the

Equal

Employment

Opportunity Commission (“EEOC”) and the Kentucky Commission on
Human Rights (“KCHR”). [DE 12-1; see DE 1-1, EEOC Dismissal and
Notice]. The EEOC issued a Dismissal and Notice of Rights in
January 2018, indicating that the EEOC was unable to establish a
statutory violation, but informed Spaw that he had the right to
file a lawsuit within ninety days of the notice. [DE 1-1 at 1].
Spaw initiated this lawsuit on April 4, 2018, alleging violations
of the ADEA, 26 U.S.C. § 623, and the KCRA, K.R.S. § 344.040(1).2
Following

the

issuance

of

scheduling

orders

[DE

18-19],

counsel for Spaw filed and this Court granted their motion to
withdraw [DE 20-21]. Amcor filed a motion for summary judgment [DE
24] and several motions in limine [DE 25-27] on July 15, 2019. Per
Local Rule 7.1, Spaw’s deadline to respond to those motions was
August 5, 2019. Spaw has neglected to appear in the case since his
former counsel withdrew and he has failed to respond to Amcor’s
above-mentioned motions. Consistent with this Court’s practice,
Spaw was ordered to show cause why Amcor’s motion for summary

Because the KCRA section at issue mirrors the ADEA, the Court
does not separately address that claim.
2

2 

judgment should not be granted and was warned that his failure to
adequately respond may result in the entry of judgment in favor of
Amcor. [DE 28 at 2, PageID #427]. Spaw has failed to respond to
the Court’s order.
II.

Discussion

Summary judgment is appropriate only when no genuine dispute
exists as to any material fact and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving
party has the burden to show that “there is an absence of evidence
to support the nonmoving party’s case.” Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). “A dispute about a material fact is
genuine if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Smith v. Perkins Bd. of Educ.,
708 F.3d 821, 825 (6th Cir. 2013) (internal quotations omitted).
The Court construes the facts in the light most favorable to the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
By failing to timely respond to Amcor’s motion for summary
judgment, Spaw waives opposition to the motion. See Humphrey v.
U.S. Att’y Gens. Office, 29 F. App’x 328, 331 (6th Cir. 2008);
Resnick v. Patton, 258 F. App’x 789, 790-91 n.1 (6th Cir. 1989);
Walker v. Jones, No. 09-cv-393-GFVT, 2010 WL 1838969, at *1 (E.D.
Ky. May 5, 2010). Spaw’s lack of response is grounds for this Court
to grant the motion under local rules. See LR 7.1(c).
3 

Amcor does not dispute that Spaw could establish a presumption
of age discrimination under the ADEA.3 [DE 24 at 21, PageID #243].
Instead,

Amcor

claims

it

terminated

Spaw’s

employment

for

a

legitimate, non-discriminatory reason: his lengthy history of poor
job

performance.

[Id.].

Amcor

cites

to

several

disciplinary

actions leading up to Spaw’s termination, including a plethora of
warnings
procedure.

regarding
[Id.

his

at

continued

21-23,

PageID

failure

to

#243-45].

follow

proper

Following

this

explanation, Spaw had the burden of showing by a preponderance of
the evidence that the given reasons for termination had no basis
in fact, that they did not actually motivate the discharge, or
that they were insufficient to warrant dismissal. Sander v. Gray
Television Grp., Inc., 478 F. App’x 256, 265 (6th Cir. 2012).
Spaw

also

briefly

mentions

in

the

complaint

alleged

harassment he received because of his age in violation of the ADEA.
[DE 1 at 8, PageID #8]. Amcor denies that Spaw was subjected to
pervasive harassment that created an objectively hostile work
environment. [DE 24 at 26, PageID #248]. Based on facts in the

This presumption is established where the plaintiff shows (1)
that he was at least forty years old at the time of the
discrimination, (2) that he was qualified for the job, (3) that he
suffered an adverse employment action, and (4) he was replaced by
someone substantially younger. Browning v. Dep’t of Army, 436 F.
3d 692, 695 (6th Cir. 2006)(citing Bush v. Dictaphone Corp., 161
F. 3d 363, 368 (6th Cir. 1998)). The employer must then offer a
non-discriminatory reason for the employment action. Id. If the
employer meets this burden, the plaintiff must prove that those
reasons are pretextual in order to prove age discrimination. Id.
3

4 

record, Amcor points out that of the few comments Spaw alleged
were harassment about his age, none were made with animus and did
not create a work environment Spaw could subjectively regard as
abusive. [Id. at 26-27, PageID #248-49]. Spaw never complained of
and Amcor had no evidence of his harassment. [Id. at 27, PageID
#249].
Because Spaw has not responded to Amcor’s motion, which sets
out a non-discriminatory reason for his termination and dispels
the existence of pervasive harassment, he waives any opposition to
the motion and judgment should be granted as a matter of law.
Humphrey, 29 F. App’x at 331. The Court having reviewed Amcor’s
motion

for

summary

judgment

and

being

otherwise

sufficiently

advised,
IT IS ORDERED as follows:
(1)

Defendant Amcor Rigid Plastics USA, LLC’s motion for

summary judgment [DE 24] is hereby GRANTED;
(2)

Claims against Defendant Amcor Rigid Plastics USA, LLC,

are hereby DISMISSED WITH PREJUDICE; and
(3)

Defendant

Amcor

Rigid

Plastics

DISMISSED as a party to this action.
This the 6th day of September, 2019.

5 

USA,

LLC,

is

hereby

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