Turner et al v. Pulaski Fiscal Court

Filing 23

MEMORANDUM OPINION & ORDER: 1. Defendant's Motion for Summary Judgment [R. 16 ] is DENIED IN PART as it relates to Plaintiffs' state and federal age discrimination claims; and 2. Defendant's Motion for Summary Judgment [R. 16 ] is G RANTED IN PART as it relates to Plaintiffs' due process claims. Motions terminated: 16 MOTION for Summary Judgment by Pulaski Fiscal Court filed by Pulaski Fiscal Court. Signed by Judge Gregory F. Van Tatenhove on 5/23/2018.(RBB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON

RONALD D. TURNER and
WILLIAM L. WARREN,

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Plaintiffs,
V.
PULASKI FISCAL COURT,
Defendant.
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Case No. 6:17-cv-00028-GFVT

MEMORANDUM OPINION
&
ORDER

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Ronald D. Turner and William L. Warren contend they were passed over for promotion
due to their age. They also claim their due process rights were violated as a result of Pulaski
County’s promotional process. As explained below, Pulaski County failed to hire either of the
plaintiffs to the Tile Foreman position in 2015, instead hiring a younger Ryan Price. Turner and
Warren identified enough facts to establish a prima facie case for age discrimination, and they
sufficiently demonstrated that Pulaski County’s nondiscriminatory reason for the employment
decision was pretextual. However, Turner and Warren did not respond to Pulaski County’s
request for summary judgment on the due process claim. Therefore, for the reasons stated
below, Pulaski Fiscal Court’s motion for summary judgment is DENIED IN PART and
GRANTED IN PART.
I
In September 2015, Pulaski County was looking to fill the position of Tile Foreman, a

supervisory position within the Pulaski County Road Department.1 [See R. 16-2.] While the job
description does not contain any mandatory qualifications, the description does list as desirable
qualifications: experience with employee supervision; “considerable knowledge of the methods,
materials, equipment maintenance and repair of roads”; and the “[a]bility to supervise employees
and assign various tasks to complete projects.” [Id.]
In 2015, Plaintiff Ronald D. Turner had more than 26 years’ experience with the Pulaski
County Road Department. [R. 1 at 1.] His most recent stint with Pulaski County began in 2006
when he was 51 years old. [See R. 16-19 at 3-4.] At that time, he served approximately three
months in a supervisory role as a Bridge Foreman, but since that time Turner has been employed
as a machinery operator, which is a non-supervisory position. [R. 16-1 at 2.] He previously
applied for the Tile Foreman position, but was not hired. [See R. 16-19 at 4.] When Pulaski
County made the personnel decision in question, Turner was 60 years old. [R. 21 at 2.]
In 2015, Plaintiff William L. Warren had approximately 20 years’ experience with
Pulaski County. [See R. 1 at 1.] He was approximately 46 years old when he was hired, and he
has served as a truck driver for the entirety of his employment with Pulaski County. [Id.; R. 1620 at 8.] He has never served in a managerial role. [R. 16-20 at 9-10.] He previously applied
for the Tile Foreman position twice, but was not hired. [See R. 16-20 at 3-5.] Warren was 64
years old when Pulaski County made the personnel decision at issue. [R. 21 at 2.]
Pulaski County maintains a Personnel Policies and Procedures Manual, copies of which
both Turner and Warren received and acknowledged reviewing. [See R. 16-5; R. 16-8.] While

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Defendant submitted as an attachment to its Motion for Summary Judgment a Pulaski County Position Description
for the position of Road Crew Foreman. [R. 16-2.] In Plaintiffs’ Complaint, and most of the record as a whole, the
position in question is a Tile Foreman position. [See, e.g. R. 1; R. 16-1.] In an attachment to Plaintiffs’ Response in
Opposition [R. 21], Plaintiff Turner describes the responsibilities of a Tile Foreman to consist of being a machine
operator, and having supervisor responsibilities over other equipment operators. [See R. 21-4 at 7.] Since the
parties make no distinction between a Road Crew Foreman and a Tile Foreman, the Court will, for the purposes of
this Motion, consider the positions to be one in the same.

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the Manual states that applicants for positions must submit application forms provided by the
county, nothing in the Manual mandates Pulaski County officially post job openings. [See
generally R. 16-4.] Pulaski County never formally posted the Tile Foreman position in the fall
of 2015 [R. 16-1 at 10], but both Turner and Warren knew the Tile Foreman position was open
as the previous Tile Foreman was retiring. [See R. 16-19 at 8; R. 16-20 at 6.] Ultimately,
Pulaski County hired Ryan Price to fill the open Tile Foreman position. [R. 1 at 2.] Ryan Price
is younger than both Turner and Warren, and has less experience with the county. [Id.]
Turner and Warren previously filed EEOC complaints. [Id.] In December 2016, they
both received their EEOC right-to-sue letters. [Id.] In February 2017, Turner and Warren
brought suit against Pulaski County Fiscal Court for violation of the Age Discrimination in
Employment Act (ADEA) and the Kentucky Civil Rights Act (KCRA) for passing them over for
the Tile Foreman position in 2015. [See generally R. 1.] Pulaski County now seeks summary
judgment.
II
A
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56. “A genuine dispute exists on a material fact, and thus summary judgment is improper, if the
evidence shows ‘that a reasonable jury could return a verdict for the nonmoving party.’” Olinger
v. Corporation of the President of the Church, 521 F. Supp. 2d 577, 582 (E.D. Ky. 2007)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Stated another way, “[t]he
mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient;
there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477

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U.S. at 252.
The moving party has the initial burden of demonstrating the basis for its motion and
identifying those parts of the record that establish the absence of a genuine issue of material fact.
Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its
burden by showing “that there is an absence of evidence to support the non-moving party’s
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has satisfied this
burden, the non-moving party must go beyond the pleadings and come forward with specific
facts demonstrating the existence of a genuine issue for trial. Fed. R. Civ. P. 56; Hall Holding,
285 F.3d at 424 (citing Celotex, 477 U.S. at 324). Moreover, “the nonmoving party must do
more than show there is some metaphysical doubt as to the material fact. It must present
significant probative evidence in support of its opposition to the motion for summary judgment.”
Hall Holding, 285 F.3d at 424 (internal citations omitted).
When applying the summary judgment standard, the Court must review the facts and
draw all reasonable inferences in favor of the non-moving party. Logan v. Denny’s, Inc., 259
F.3d 558, 566 (6th Cir. 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
However, the Court is under no duty to “search the entire record to establish that it is bereft of a
genuine issue of material fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). Rather, “the
nonmoving party has an affirmative duty to direct the court’s attention to those specific portions
of the record upon which it seeks to rely to create a genuine issue of material fact.” Id.
B
Mr. Turner and Mr. Warren allege Pulaski County Fiscal Court violated their rights under
the ADEA and the KCRA. Under both the ADEA and the KCRA, employers are prohibited
from refusing to promote someone because of the individual’s age. See 29 U.S.C. § 623(a)(1);

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Ky. Rev. Stat. Ann. § 344.040(1). Age discrimination claims brought under the KCRA are
“analyzed in the same manner” as claims brought under the ADEA. Allen v. Highlands Hosp.
Corp., 545 F.3d 387, 393 (6th Cir. 2008) (citing Harker v. Fed. Land Bank of Louisville, 679
S.W.2d 226, 229 (Ky. 1984)). “The ultimate question in every employment discrimination case
involving a claim of disparate treatment is whether the plaintiff was the victim of intentional
discrimination.” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (quoting Reeves v.
Sanderson Plumbing Prods. Inc., 530 U.S. 133, 153 (2000)).
A plaintiff may prove age discrimination through the use of direct or circumstantial
evidence. Id. “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
actions.” Id. Circumstantial evidence is “proof that does not on its face establish discriminatory
animus, but does allow a fact finder to draw a reasonable inference that discrimination occurred.”
Id. In this case, Plaintiffs have neither produced any direct evidence of discrimination, nor
argued direct evidence exists. Thus, Mr. Turner and Mr. Warren bear the burden of proving a
circumstantial case of age discrimination.
In the Sixth Circuit, when a plaintiff seeks to prove intentional discrimination under the
ADEA with circumstantial evidence, the McDonnell Douglas framework applies. Id. (citing
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009)). Under this familiar analysis, the
plaintiff must first establish a prime facie case of age discrimination. Schoonmaker v. Spartan
Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir. 2010) (quoting Reeves, 530 U.S. at 153). If
the plaintiff is successful, the burden then shifts to the defendant employer to “articulate a
legitimate nondiscriminatory reason for the adverse employment action.” Id. (citing Allen, 545
F.3d at 394). Once this showing has been made, “the burden of production shifts back to the

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plaintiff to show that the employer’s explanation was a mere pretext for intentional age
discrimination.” Id. Importantly, though the burden of production shifts throughout the
analysis, “[t]he burden of persuasion, however, remains on the ADEA plaintiff at all times to
demonstrate that age was the ‘but-for’ cause of their employer’s adverse action.” Id. (citing
Geiger, 579 F.3d at 620; Gross, 557 U.S. at 623 n.4).
1
Under the ADEA, for Turner and Warren to establish a prima facie case of age
discrimination in this failure-to-promote case they must prove that: (1) they were over forty
years old at the time of the alleged discrimination and thus belonged to a protected class; (2) they
applied for, and were qualified for, the promotion; (3) they were considered for and denied the
promotion; and (4) they were rejected in favor of a similarly qualified person who is not a
member of the protected class. See Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 812-13 (6th
Cir. 2011) (citing White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir. 2005)).
The only criteria in dispute in this prima facie determination is whether Turner and Warren
applied for the Tile Foreman position and whether they have shown that they possessed similar
qualifications as the younger individual selected for the promotion. [Id. at 11-13.]
Generally, to satisfy the second criterion of a prima facie case of age discrimination, a
plaintiff must show she applied for the relevant position. Provenzano, 663 F.3d at 812.
However, the Sixth Circuit has acknowledged that certain exceptions to the formal application
rule exist. See Wanger v. G. A. Gray Co., 872 F.2d 142, 145 (6th Cir. 1989). First, “[b]ecause
an employer may create an atmosphere in which employees understand that their applying for
certain positions is fruitless, even nonapplicants can in appropriate circumstances qualify for
relief.” Id. (quoting Babrocky v. Jewel Food Co. and Retail Meatcutters Union, Local 320, 773

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F.2d 857, 867 (7th Cir. 1985); See also Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,
367-68 (1977). Second, nonapplicants may qualify for relief in situations where an employer has
a practice of hiring without posting the position or without asking for applications. See Wanger,
872 F.2d at 146. Under this exception, plaintiffs must show that they would have applied for the
position had they known about the opening, and, in establishing as much, a plaintiff must show
more than mere general interest in the position. Id.
The Sixth Circuit later expanded the second Wanger exception by stating that a
nonapplicant may, under certain circumstances, qualify for relief where he made “a reasonable
attempt to demonstrate to the employer that he is interested in the job.” Grant v. Harcourt Brace
Coll. Publishers, No. 98-3829, 1999 WL 717982, at *4 (6th Cir. 1999) (citing EEOC v. Metal
Serv. Co., 892 F.2d 341, 348-49 (3d Cir. 1990) (listing cases in which nonapplicants established
prima facie cases of discrimination by showing a reasonable attempt to demonstrate interest in
open position)). While “[a] generalized expression of interest in a position will not qualify as an
application for employment,” the Sixth Circuit has acknowledged that “putting the employer on
specific notice of interest is usually sufficient.” Grant, 1999 WL 717982, at *4 (citing Whalen v.
Unit Rig, Inc., 974 F.2d 1248, 1251 (10th Cir. 1992)). Additionally, in Dews v. A.B. Dick Co.,
the Sixth Circuit held,
when the employer does not notify its employees of the available promotion or does
not provide a formal mechanism for expressing interest in the promotion . . . the
company is held to a duty to consider all those who might reasonably be interested
in a promotion were its availability made generally known.
231 F. 3d 1016, 1022 (6th Cir. 2000) (emphasis added). To be clear, the Court reads this holding
to be disjunctive. Related to this case, then, “when the employer does not notify its employees of
the available promotion . . . the company is held to a duty to consider all those who might
reasonably be interested in a promotion were its availability made generally known.” Id. Thus,
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this expanded exception satisfies both the “applied for” component of prong two and the
“considered for” component of prong three. Id.
Here, Turner and Warren do not claim they submitted formal applications, only that they
applied consistent with the informal custom in Pulaski County. [R. 21 at 3-4.] Additionally,
Turner and Warren do not argue that Pulaski County created an atmosphere in which certain
employees understood applying for certain positions was fruitless, or that they were unaware of
the promotional opportunity. See Wanger, 872 F.2d at 145-46. Therefore, in order for Turner
and Warren to satisfy the second criterion of a prima facie case, they must show their informal
application met the expanded reasonableness exception articulated in Grant and Dews.
Pulaski County concedes the Tile Foreman position was not formally posted. [R. 16-1 at
10.] Under the guidance of Dews, then, Pulaski County was obligated to consider those
employees reasonably interested in the promotion. See Dews, 231 F. 3d at 1022. However,
Turner and Warren’s expression of interest had to be more than generalized. See Grant, 1999
WL 717982, at *4. Turner directly notified Pulaski County Fiscal Court Judges Kelley and Price
of his interest in applying for the Tile Foreman position. [R. 16-19 at 8-10.] Warren submitted a
handwritten resume to Judge Kelley indicating his interest in applying for the Tile Foreman
position. [R. 16-20 at 6.] These expressions are sufficiently reasonable to put Pulaski County on
specific notice of Turner’s and Warren’s interest in the Tile Foreman vacancy. See Grant, 1999
WL 717982, at *4.
In order to finalize their prima facie case, Turner and Warren must show they were
passed over for the Tile Foreman spot in favor of a similarly qualified person who is not a
member of the protected class. See Provenzano, 663 F.3d at 812-13. The parties do not dispute
that Ryan Price, the individual Pulaski County promoted, was younger and not a member of a

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protected class; therefore, the issue here is whether Price was similarly qualified for the Tile
Foreman position. Turner and Warren indicate that Price was much less experienced than the
plaintiffs. [R. 1 at 2.] The qualifications for the Tile Forman position were:
High School graduate or equivalent experience. Experience in employee
supervision and instruction, equipment usage and/or repair and construction
policies and procedures. . . . Considerable knowledge of the methods, materials,
equipment maintenance and repair of roads, related facilities and equipment.
Considerable knowledge of the County Road System. Ability to supervise
employees and assign various tasks to complete projects. Must be able to follow
oral and written instructions. Ability to work well with employees, County
Officials, and the general public.
[R. 16-2.]
Turner’s qualifications include more than 25 years of on-the-job experience, two years as
an assistant road foreman, and three months as bridge foreman. [R. 21 at 2.] Turner gave
reasons for no longer being in those supervisory roles with Pulaski County; those reasons have
nothing to do with his qualifications for the Tile Foreman position and are not at issue in this
case. [Id.] Additionally, Turner was told he “would be hard to replace” because “nobody could
run all the machinery that [he] could run.” [R. 21-4 at 12.] Warren had over twenty years of onthe-job experience as a truck driver with Pulaski County, but also worked in other capacities
including as a machine operator. [R. 21 at 4.] Ryan Price held the positions of truck driver and
equipment operator prior to his promotion to Tile Foreman. [R. 16-9.] Additionally, simply
based on Price’s year of birth, 1987, he has much less work experience than either Turner or
Warren. [See R. 22-8.] Therefore, Turner and Warren, having held similar positions, have
shown that Price was similarly qualified when Pulaski County promoted Price to Tile Foreman.
Consequently, Turner and Warren have meet their burden of establishing a prima facie case of
age discrimination under the ADEA.

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2
Having found that Turner and Warren have established a prima face case of age
discrimination, the burden shifts to Pulaski County to give a nondiscriminatory reason for the
adverse employment decision. See Schoonmaker, 595 F.3d at 264. As the nondiscriminatory
justification for promoting Price over Turner and Warren, Pulaski County avers that Price was
more qualified for the Tile Foreman position. [R. 16-1 at 4, 11-13.] In doing so, Pulaski County
states that Price “had employee evaluation scores far superior to Warren’s,” and “took
management and road planning classes through the University of Kentucky.” [Id. at 4.] Further,
Pulaski County asserts that Turner and Warren “have failed to produce a single piece of evidence
that indicates they were more, or even as qualified, as Price.” [Id. at 11.] Pulaski County relies
heavily on the assertion that “[n]ot only was Price specifically trained in management and
building roads in general, but he has eagerly made himself available for overtime hours.” [Id. at
12.]
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Given that Pulaski County provided a legitimate, nondiscriminatory justification for
promoting Price over Turner and Warren, the burden shifts back to Turner and Warren to put
forth evidence to show the justification is mere pretext for the discriminatory action. See
Schoonmaker, 595 F.3d at 264. Unfortunately, for Pulaski County, this burden is not difficult for
Turner and Warren simply because the exhibits attached to Pulaski County’s Motion for
Summary Judgment cut against the County’s own argument.
Pulaski County states Price had performance evaluations that were “far superior” to
Warren’s. [Id. at 4.] However, Pulaski County only provided two of Price’s pre-promotion
performance evaluations. [See R. 16-9.] On the first of those evaluations, dated June 27, 2008,

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Price received a ranking of “Very Good” on all areas of the truck driver evaluation, with a
managerial comment that reads, “Ryan is an asset to the RD. Dept[.] Very Good employee.”
[Id.] On the second of Price’s submitted evaluations, dated January 17, 2012, Price received
both “Good” and “Very Good” scorings for the equipment operator appraisal, with no
managerial comment. [Id.] In an attempt to substantiate the argument, Pulaski County also
submitted two of Warren’s evaluations. [See R. 16-11.] On the first of Warren’s submitted
evaluations, dated September 1, 2000, Warren received both “Good” and “Very Good” ratings,
with numerous comments of praise. [Id.] On the second of Warren’s submitted evaluations,
dated July 27, 2001, he received only “Very Good” markings. [Id.] The evaluation again
contained a number of admirable comments concerning Warren’s performance. [Id.] The
evaluations submitted by Pulaski County fail to corroborate their argument that Price was more
qualified than Warren based on job performance.2
Next, Pulaski County contends that Price was more qualified than the plaintiffs because
Price took developmental classes through the University of Kentucky. [R. 16-1 at 11.] As
Turner and Warren promptly pointed out in their Response to the Motion for Summary
Judgement, the record indicates that Price took the courses, or at least received his certificates of
completion, after the promotional decision was made. [See R. 16-10; R. 21 at 5.] Pulaski
County promoted Ryan Price to Interim Tile Foreman at a Pulaski County Fiscal Court Meeting
on September 22, 2015. [R. 22-5 at 2.] However, Price completed the “Drainage: The Key to
Roads that Last” course on April 20, 2016, and he completed the “Managing People I” course on
July 12, 2016. 3 [R. 16-10.]

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The Court notes that the promotion decision in question occurred in the Fall of 2015, yet the performance
evaluations on which Pulaski County relies occurred years prior to the decision.
3
Each of the two courses consisted of six professional development hours. [See R. 16-10.]

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Finally, Pulaski County argues that Price was better qualified for the Tile Foreman
position because “he has eagerly made himself available for overtime hours.” [R. 16-1 at 12.]
Notably, a candidate need not have previously worked overtime to qualify for the Tile Foreman
position, but a Tile Foreman has a duty to be on-call and subject to emergency calls 24 hours per
day. [See R. 16-2.] According to the record, Price worked a total of 35 hours of overtime. [R.
16-12.] Of those 35 hours, he received compensatory time for 23 hours, and overtime pay for 12
hours. [Id.] While there are no documents to suggest if Warren ever worked overtime, the
record indicates he turned down overtime on one day in January of 2015. [R. 16-15.] However,
Turner’s payroll documents, submitted by Pulaski County, indicate Turner accumulated over 100
hours of overtime from February 2014 through September 2015. [R. 16-14.] Pulaski County
nevertheless contends “he almost never took on overtime shifts.” [R. 16-1 at 12.] The record
simply refutes that statement. Although it appears from the record that Turner opted for
overtime pay for the majority of those hours, it cannot be said that Turner did not make himself
available for overtime hours.
Based mainly on the exhibits submitted by Pulaski County, Turner and Warren have
more than met their burden to show that the nondiscriminatory reason for promoting Price over
them was pretextual. Because Turner and Warren have established a prima facie case of age
discrimination in this failure-to-promote case, and because they have shown that the reason given
for promoting a younger individual over them was pretextual, their age discrimination claims
survive summary judgment.
C.
Pulaski County also moves for summary judgment on Turner’s and Warren’s due process
claim. The Complaint claims Pulaski County violated Turner’s and Warren’s due process rights.

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[R. 1 at 3.] Pulaski County argues that neither Turner nor Warren had a property interest in the
promotion because their policies make it clear “that seniority does not entitle an employee to
anything.” [R. 16-1 at 14.] Turner and Warren do not thoroughly develop this claim, and they do
not respond to Pulaski County’s argument that the claim should be dismissed. As such, the
Court will grant summary judgment on the due process claim.
III
For the foregoing reasons, and being otherwise sufficiently advised, the Court hereby
ORDERS:
1. Defendant’s Motion for Summary Judgment [R. 16] is DENIED IN PART as it
relates to Plaintiffs’ state and federal age discrimination claims; and
2. Defendant’s Motion for Summary Judgment [R. 16] is GRANTED IN PART as it
relates to Plaintiffs’ due process claims.

This 23rd day of May, 2018.

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