Perry et al v. Autozone Stores, Inc. et al

Filing 102

MEMORANDUM OPINION AND ORDER denying 78 Motion for Reconsideration ; denying 78 Motion in Limine. Signed by Judge John G. Heyburn, II on 10/9/13. cc:counsel (MM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:11-CV-00403-H

SHANA PERRY, et al.

PLAINTIFFS

V.
AUTOZONERS, LLC

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiffs Shana Perry, Daryl Quiney, and Damon Harper bring this action against their
former employer Defendant AutoZoners, LLC, for alleged injuries suffered during their
employment in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the
Kentucky Civil Rights Act, Ky. Rev. Stat. § 344. After the Court’s orders on Defendant’s
motions for summary judgment, two of Quiney and Harper’s claims remain: (1) discriminatory
termination based on race and (2) retaliatory termination. Defendants have moved the Court to
reconsider its decision to allow the Quiney/Harper Plaintiffs to go forward with their claims of
racial discrimination based on termination.
The Court has already spent considerable time attempting to analyze and to reconcile
these two quite contradictory claims. The Court will continue that effort as the matter heads to
trial. For the reasons that follow, however, the Court is convinced that the claims were properly
identified, administratively filed, and pled in this Court.
I.
The Court finds that Defendant’s motion for reconsideration is untimely, see Fed. R. Civ.
P. 59(e), and Defendant’s motion in limine to exclude all evidence and argument related to

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Plaintiffs’ racially discriminatory termination claim is inappropriate. See Sperberg v. Goodyear
Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975) (orders in limine should rarely exclude
broad categories of evidence); ABC Beverage Corp. & Subsidiaries v. U.S., 2008 WL 5424174,
at *2 (W.D. Mich. Dec. 4, 2008) (motions in limine are not “substitutes for dispositive
motions”). The Court will treat Defendant’s untimely Rule 59 motion as a Rule 60(b) motion for
relief from a judgment. See Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir. 1998);
Fed. R. Civ. P. 60(b)(6). The Court, being sufficiently advised by the record, Defendant’s
motion, Plaintiffs’ response, and the parties’ final pretrial conference before the undersigned on
September 18, 2013, will rule on the merits of Defendant’s motion.
II.
Defendant first argues that Quiney/Harper Plaintiffs’ claim of discriminatory termination
based on race is not properly before this Court. It further argues that this Court created a new
claim for Plaintiffs that had not previously been pleaded. Defendant contends that Plaintiffs
made no mention of racially discriminatory termination in Plaintiffs’ EEOC filings, Complaint,
discovery, or dispositive motion practice. This case has been and continues to be a confusing
one. However, the Court disagrees with the thrust of this motion.
Plaintiffs each filed an EEOC Charge of Discrimination “alleging racial discrimination
and retaliation for opposing and participating in a protected activity when [they] participated in
the sexual harassment investigation.” ECF No. 45-8, 45-17. Plaintiff Harper’s EEOC Charge
reads in pertinent part:
During the sexual harassment investigation, only the Black employees in the store were
interviewed and the two Black Managers were later discharged. I believe that I was
subjected to racial harassment because of my race, Black, and was discharged in
retaliation for participating in a protected activity when interviewed regarding the sexual
harassment investigation . . .

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ECF No. 45-17 (emphasis added). Plaintiff Quiney’s EEOC Charge reads in pertinent part:
During the sexual harassment investigation, only the Black employees of the store were
interviewed and we were both terminated after being interviewed. I believe I have been
subjected to racial harassment because of my race, Black, and was discharged in
retaliation for participating in a protected activity when interviewed regarding the sexual
harassment investigation. . .
ECF No. 45-8 (emphasis added).
An “EEOC complaint should be liberally construed to encompass all claims ‘reasonably
expected to grow out of the charge of discrimination.’” Randolph v. Ohio Dep’t of Youth Servs.,
453 F.3d 724, 732 (6th Cir. 2006) (quoting Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir.
1992)). “[W]here facts related with respect to the charged claim would prompt the EEOC to
investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that
claim.’” Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 380 (6th Cir. 2002) (quoting Davis v.
Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998) (internal quotations
omitted). Plaintiffs’ current claim for racially discriminatory termination seems to meet this
standard.
Defendant argues, however, that according to Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101 (2002)), Plaintiffs must have filed separate EEOC charges for discrete acts of
discrimination, such as termination, within 300 days of its occurrence, or else those claims are
time-barred. Morgan concerned the application of the EEOC charge filing period as laid out in
42 U.S.C. § 2000e-5(e)(1). In pertinent part, the Court ruled that “discrete discriminatory acts
are not actionable if time barred . . .” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002). The EEOC Compliance Manual, citing Morgan, declares that “[i]ndividual discrete acts
that occurred before the filing period will generally be untimely—and therefore not actionable—
even if they are arguably related to acts that occurred within the filing period.” EEOC

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Compliance Manual, 2009 WL 2966756, 915.003 § 2-IV.C “When Can a Discriminatory Act Be
Challenged?” (August 2009) (revised in July 2005 light of Morgan). Plaintiffs’ terminations fall
within their filing periods and, as previously discussed, Plaintiffs’ charges support both a
retaliation and racially discriminatory termination claim.
Next, Defendant argues that Plaintiffs did not sufficiently plead a discriminatory
termination claim in their complaint. Count VI of Plaintiffs’ complaint is “discrimination in
terms and conditions of employment based on race.” ECF No. 1-2. The complaint alleges that
Plaintiffs were “treated differently in the terms and conditions of employment when compared
with other similarly situated Caucasian employees.” Id. The Sixth Circuit has found that the
“terms and conditions of employment” encompass termination. Kuhn v. Washtenew County, 709
F.3d 612, 625 (6th Cir. 2013). This pleading seems to provide Defendant with fair notice of the
claim and the grounds upon which the claim rests.
Finally, Defendant argues that Plaintiffs did not specifically address racially
discriminatory termination in their opposition to Defendant’s motion for summary judgment.
However, Plaintiffs did address differential treatment in the terms and conditions of employment.
Further, in a section entitled “b. Quiney and Harper’s Race Discrimination Claim,” subsection
“3. Defendants did not put forth a legitimate non-discriminatory reason for the racial disparate
treatment suffered by Quiney and Harper,” Plaintiffs argue: “The Defendants’ [sic] provide no
consistent evidence as to why Harper and Quiney were terminated for an alleged policy violation
of failing to report sexual harassment . . .” ECF No. 54. Therefore, Plaintiffs address their
terminations in the context of their race discrimination argument, and they did not abandon those
claims.

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III.
Finally, Defendant argues that Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517
(2013)) renders Plaintiffs’ claim of retaliatory termination and racially discriminatory
termination mutually exclusive. Nassar determined that claims of retaliatory termination are
subject to a heightened but-for standard of causation, whereas claims of racial discrimination
remain subject to the “motivating factor” test. See Nassar, 133 S.Ct. at 2534. Defendants argue
that this heightened but-for causation standard prevents Plaintiffs from arguing both claims. The
Court, finding that the two claims can be argued in the alternative in accordance with Federal
Rule of Civil Procedure 8(d), will allow both of Plaintiffs’ claims to proceed to trial.1 Fed. R.
Civ. P. 8(d). The Court will discuss this issue further with the parties in the context of the
instructions.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant’s motion for relief from a judgment (ECF
No. 78) is DENIED.
IT IS FURTHER ORDERED that Defendant’s motion in the alternative to exclude
evidence (ECF No. 78) is DENIED.

October 9, 2013

cc:

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Counsel of Record

The Court does not decide whether Plaintiffs’ two claims would be mutually exclusive.

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