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

Filing 71

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 6/4/2013 granting in part and denying in part 45 Motion for Summary Judgment; Defendants Autozone Stores, Inc., Autozone Development Corp., Autozone Texas, L.P., and Autozone, Inc. are DISMISSED; motion for summary judgment as to any claims concerning Autozones issuance of the July 2010 Corrective ActionReviews against Quiney and Harper, alleged negative employment reference of Harper, and Autozones failure to promote Quiney and Ha rper is SUSTAINED, and these claims are DISMISSED WITH PREJUDICE; motion for summary judgment as to Plaintiffs racial discrimination claim based on Plaintiffs terminations isDENIED; motion for summary judgment as to Plaintiffs other racial discrimination claims and Plaintiffs claims for retaliation is SUSTAINED and those claims are DISMISSED WITH PREJUDICE.cc:counsel (TLB)

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, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Plaintiffs Shana Perry, Daryl Quiney, and Damon Harper brought suit against their
former employer, Defendant AutoZoners, LLC1 (“Autozone”), for a number of alleged injuries
arising from the interaction between Plaintiffs and their supervisors. Perry brought five counts
individually, and Quiney and Harper together brought two counts. Autozone has filed two
motions for summary judgment. Presently before the Court is Autozone’s motion for summary
judgment as to the claims brought by Quiney and Harper for racial discrimination and retaliation.
The Court will consider Perry’s claims in a later memorandum.
The Court has considered the lengthy briefs filed in support and opposition of this
motion.

The circumstances of these claims and the unusual nature of them make for a

complicated analysis. For the reasons the follow, the Court will grant the motion in part and
deny the motion in part.

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Plaintiffs initially sued Dawn Brandenburg and Donnie Helstern in their individual capacities. The Court
dismissed the individual Defendants pursuant to court order on April 29, 2013, following a status conference.
Plaintiffs also sued the following corporate parties: AutoZone Stores, Inc., AutoZone Development Corp., AutoZone
Texas, L.P., AutoZoners, LLC, and AutoZone, Inc. These remaining corporate Defendants argue that only
AutoZoners, LLC has employees, and is thus the only entity potentially liable for the wrongs alleged here. During
the status conference, Plaintiffs’ counsel indicated that she would be amenable to dismissing the other Defendants if
provided proof that AutoZoners, LLC was the corporate entity employing the actors at issue in the present litigation.
The Court expected, and has yet to receive, a stipulation to this end.
In Plaintiffs’ response to the motion for summary judgment presently before the Court, Plaintiffs agree to
dismiss AutoZone Development Corp. and AutoZone Texas, L.P. Moreover, upon the stated guarantee of Defendants
that only AutoZoners, LLC employs the relevant actors and only AutoZoners, LLC will compensate Plaintiffs for any
injuries proven, the Court will further dismiss AutoZone Stores, Inc. and Autozone, Inc. Accordingly, the only
Defendant remaining is AutoZoners, LLC.

I.
The general timeline of events is undisputed. Perry, a Commercial Sales Manager,
worked at Autozone Store No. 612 on Broadway in Louisville, Kentucky (the “Broadway
Store”). Mark DeHaan, the Store Manager at the Broadway Store in the summer of 2010,
allegedly engaged in persistent and frequent sexual harassment of Perry between June 14, 2010
and July 23, 2010. That day, Perry called Dawn Brandenburg, the Regional Human Resources
Manager in charge of the Broadway Store, to set up a meeting, which took place the following
Monday on July 26, 2010. During the meeting, Perry disclosed the nature of DeHaan’s conduct
towards her over the past weeks. During her subsequent investigation into DeHaan’s behavior
(the “Investigation”), Brandenburg interviewed Quiney and Harper as witnesses of the alleged
inappropriate and unwelcome sexual advances. According to Autozone, it then fired Quiney and
Harper due to statements elicited during the Investigation that indicated they witnessed and
failed to report DeHaan’s harassment of Perry, in violation of company policy. Autozone
terminated Quiney on August 10, 2010 and Harper the following day.
The facts particular to Quiney are as follows: Autozone hired Quiney, an AfricanAmerican, in December of 2007. He served as Assistant Manager at several stores in Louisville,
Kentucky, and even as a temporary store manager at one location, before Autozone transferred
him to the Broadway Store.

Autozone does not contest Plaintiffs’ characterization of the

Broadway Store as experiencing an inordinate amount of theft due to its location in a
neighborhood fraught with a high crime rate. Quiney contends that Autozone transferred him to
the Broadway Store because “he was a good fit for the customers” in an area populated by an
African-American majority. Around the time of his transfer to the Broadway Store, then Store
Manager Tim Hedley, Caucasian, allegedly told Quiney that District Manager Donnie Helstern,

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also Caucasian, would never hire an African-American store manager. Quiney worked as the
Assistant Store Manager at the Broadway Store until his termination.
During Quiney’s employment, Autozone promoted Hedley out of the store manager
position at the Broadway Store and replaced him with DeHaan, who is half African-American
and half Caucasian. Quiney once approached DeHaan to warn him to watch his behavior
towards Perry. That same week, Autozone placed Quiney on a performance improvement plan
called a Corrective Action Review (“CAR”), requiring a 30-day performance review that would
result in a reduction in pay and responsibility if his work performance did not improve.
The facts particular to Harper are as follows: Autozone hired Harper, an AfricanAmerican, in July of 2008. He worked as an Assistant Manager prior to his transfer to the
Broadway Store, and held that title temporarily upon arrival at the Broadway Store. Autozone
employees also told Harper that he was a “good fit” for the location, which Harper took to mean
that Autozone transferred him there because he related to the predominantly African-American
customer base.

When Helstern took over as District Manager, Helstern and Autozone

determined that the Broadway Store did not need two assistant managers. Autozone changed
Harper’s title and job responsibilities to that of a Parts Sales Manager, although he did not
receive a reduction in pay. He served as the Broadway Store Parts Sales Manager until his
termination.
At some point in July of 2010, Harper complained to Helstern about DeHaan’s
managerial conduct, divulging that DeHaan often took long lunches and did not return after
lunch. Shortly thereafter, Autozone placed Harper on a CAR with similar work improvement
contingencies placed upon Quiney.

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Perry reported the extent of DeHaan’s sexual harassment against her to Brandenburg on
July 26, 2010, naming as witnesses Quiney, Harper, and Grover Jones, another Autozone
employee with an unknown position at the Broadway Store. All named witnesses are AfricanAmerican. Brandenburg interviewed Quiney and Harper in a method Autozone refers to as a
Question and Answer. During the interviews with Quiney and Harper, Brandenburg determined
that Quiney and Harper both witnessed inappropriate and likely unwelcome sexual advances by
DeHaan and failed to report these incidents. Specifically, Quiney witnessed DeHaan swat Perry
on the backside. Harper witnessed DeHaan encroaching on Perry’s personal space to the point
where he appeared as if he was going to kiss her. Harper also saw DeHaan ask Perry to work up
front, and as she walked by, look at her backside and smile. Brandenburg sent the Question and
Answer responses to her superiors, who recommended the termination of Quiney and Harper.
Human Resources sent the recommendation to Regional Manager Jay Campbell, who adopted
the recommendation, and with the help of Helstern, communicated the termination notices to
Quiney and Harper. Caucasian employees replaced Quiney and Harper at the Broadway Store.
According to Autozone, Quiney and Harper violated a zero tolerance corporate policy for
reporting any instances of sexual harassment. During this case and in testimony before the
Kentucky Unemployment Commission, Autozone cited various provisions that it claims
constitutes this zero tolerance policy: 1) the “Reporting Illegal or Unethical Behavior” policy
subsection called “Managers/Supervisors’ Obligation for Problem Resolution”, 2) the
“Reporting Illegal or Unethical Behavior” policy subsection titled “Reporting Non-Compliance”,
3) the “Harassment” section in the Store Handbook, 4) a “Problem Solving Procedure” posting
that Brandenburg purportedly attached to a flyer sent to some or all stores under her purview,
and 5) a “Respect in the Workplace” module that presents specific workplace situations and

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provides proper responses to those situations. Autozone claims that it presents each employee
with these sexual harassment policies and trains the employees thereon. Plaintiffs principally
argue that none of these provisions require termination for failure to report the type of behavior
Quiney and Harper witnessed.
II.
Autozone now moves for summary judgment as to Quiney and Harper’s claims of racial
discrimination and retaliation. The Court will grant summary judgment “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). The Supreme Court elaborated that the standard for
summary judgment is “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). According to this standard, the
moving party bears the initial burden of “informing the district court of the basis of its motion”
and “demonstrat[ing] the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The moving party may meet this burden by showing an absence of
evidence to support an essential element of the nonmoving party’s case for which the nonmoving
party has the burden of proof. Id.
Upon meeting this burden, the nonmoving party may only overcome summary judgment
by showing that a genuine dispute exists, using specific facts that “do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Electrical Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Court will now proceed to consider
the substance of Autozone’s motion.

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III.
Quiney and Harper brought Counts for racial discrimination and retaliation based on a
number of discrete claims for adverse employment actions taken by Autozone. As an initial
matter, Autozone requests that the Court dismiss three types of these claims as outside the
pleadings. The Court agrees that dismissal is appropriate as to the claims based on the issuance
of the CARs against Quiney and Harper and the allegedly negative employment reference
Autozone employees gave of Harper.2
The third type of claim based on the failure to promote either Quiney or Harper to Store
Manager warrants further discussion.

The issues relating to these claims are relatively

complicated because Plaintiffs bring the claims under both the KCRA and Title VII, and federal
and state law apply somewhat differently to each claim. The Court will first discuss the federal
claims and then the state claims.
A.
Autozone first argues that the Court must dismiss the Title VII failure to promote claims,
because Quiney and Harper failed to incorporate these claims in their EEOC charges. A plaintiff
must exhaust administrative remedies prior to bringing suit for employment discrimination by
2

The Court is unsure whether Plaintiffs are making these claims at all. Although Plaintiffs do mention in
their opposition to the summary judgment motion that Autozone handed down the CARs in retaliation for Quiney’s
complaint to DeHaan as to his inappropriate behavior towards Perry and Harper’s complaint to Helstern as to
DeHaan’s long lunch breaks and failure to return to work after lunch, Plaintiffs do not actually make an argument in
support of these purported claims. Plaintiffs make no meaningful response to Autozone’s contention that these
claims are not cognizable under the Complaint and in these circumstances. The express arguments related in
Autozone’s motion for summary judgment presented Plaintiffs with reasonable notice to bring forth such evidence.
Moreover, the Court notes that Plaintiffs’ allegations are likely insufficient to maintain these claims.
Complaints to superiors criticizing the work performance of another are not protected activities, see Longs v. Ford
Motor Co., 647 F. Supp. 2d 919 (W.D. Tenn. 2009) (holding that internal complaints of general discrimination did
not refer to a specific protected class or create an inference of such a reference, and thus were not protected
activities), and Plaintiffs have presented insufficient evidence to show that Autozone made any negative reference or
that the reference resulted from Harper’s engagement in a protected activity. See Ostermyer v. Toledo Clinic, Inc.,
2005 WL 927120, *4 (N.D. Ohio Apr. 18, 2005) (holding that summary judgment must be granted where the
plaintiff presented no evidence that the employer provided a negative reference). Accordingly, the Court will
dismiss these claims.

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filing a charge based on that claim with the EEOC. Weigel v. Baptist Hosp. of E. Tenn., 302
F.3d 367, 379 (6th Cir. 2002).

The “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)). Accordingly, “where 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, 302 F.3d at 380 (quoting Davis v.
Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998)). Quiney and Harper’s
EEOC charge stated general claims for racial discrimination and retaliation, and all specific
recitations of facts related exclusively to events concerning the Investigation and their
subsequent terminations.

Plaintiffs mentioned only termination as a possible adverse

employment action.
Even if read liberally, Plaintiffs failed to assert particulars in the EEOC charge that
would prompt an investigation into the failure to promote; the scope of the investigation
reasonably expected to extend from the EEOC charge would not encompass Plaintiffs’
promotion claims. See Adamov v. U.S. Bank Nat’l Ass’n, 776 F. Supp. 2d 447, 451 (W.D. Ky.
2011). Accordingly, the Court must dismiss the Title VII failure to promote claims.
B.
The Court will next discuss the state law claims. Autozone argues that Plaintiffs’ failure
to promote claims must fail under Kentucky law as well, because Plaintiffs did not allege these
claims in the Complaint. The Court finds that the facts as alleged in the racial discrimination
Count of the Complaint would include claims for failure to promote, but the retaliation Count

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does not present sufficient allegations to support such claims. Therefore, Plaintiffs cannot base
their retaliation claims on the failure to promote.
Finally, as to the remaining state racial discrimination claims, Autozone contends that the
Court should dismiss the failure to promote claims due to the absence of a prima facie case.
Kentucky law adopted the Sixth Circuit’s approach to failure to promote claims. Ky. Dep’t of
Corr. v. McCullough, 123 S.W.3d 130, 135 (Ky. 2003) (quoting Brown v. Tenn., 693 F.2d 600,
603 (6th Cir. 1982)). To maintain a discriminatory failure to promote claim, the plaintiff must
show that:
she belongs to a protected group, that she was qualified for and applied for a
promotion, that she was considered for and denied the promotion, and that
other employees of similar qualifications who were not members of the
protected group were indeed promoted at the time the plaintiff's request for
promotion was denied.
Brown, 693 F.2d at 603 (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)). Quiney
and Harper contend that Autozone should have promoted them to Store Manager, but instead
hired DeHaan for that position. Because DeHaan is mixed-race, Autozone argues that Plaintiffs
fail the fourth element of the prima face case, requiring other employees who were not of the
same protected group to be promoted in Plaintiffs’ stead. Whether DeHaan is a member of a
protected group for purposes of state law is not an easy question.
Harper declared that DeHaan, while biracial, appears to be African-American. Harper
Depo., ECF No. 45-11. Autozone argues that DeHaan should be considered African-American
under the law and should occupy the same protected class as Quiney and Harper. The parties do
not cite and the Court is unable to find Kentucky case law explicitly stating whether mixed-race
individuals are protected under the Kentucky Civil Rights Act (“KCRA”). However, the Court
finds that language from some Kentucky case law suggests that Kentucky courts would agree
that mixed-race individuals are protected under the KCRA to a certain extent. See, e.g., Holsey
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v. Commonwealth, 2004 WL 2914750, *7 (Ky. Ct. App. Dec. 17, 2004).

Moreover, the

Kentucky General Assembly enacted the KCRA “to safeguard all individuals within the state
from discrimination because of familial status, race, color, religion, national origin, sex, age
forty (40) and over, or because of the person’s status as a qualified individual with a disability . .
. .” KRS § 344.020(1)(b). That the statute mentions both race and color indicates that the
Kentucky General Assembly intended to protect people from discrimination based on certain
apparent characteristics, i.e., the tone of their skin, regardless of their ethnicity.
“Kentucky courts look to federal law in interpreting the Kentucky Civil Rights Act.”
Woodrum v. Lane Bryant The Limited, Inc., 964 F. Supp. 243, 244 (W.D. Ky. 1997). The Sixth
Circuit appears to recognize that under Title VII, mixed-race individuals are protected. See
Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 993-95
(6th Cir. 1999) (holding that a Caucasian individual could state a claim to relief for
discrimination against him on account of his biracial daughter); see Johnson v. Univ. of
Cincinnati, 215 F.3d 561, 574 (6th Cir. 2000) (analyzing Tetro as holding that “the plaintiff
himself need not be a member of a recognized protected class; he need only allege that he was
discriminated on the basis of his association with a member of a recognized protected class”).
Other federal courts agree. See Moore v. Dolgencorp, Inc., 2006 WL 2701058, *4 (W.D. Mich.
Sept. 19, 2006) (“The court rejects plaintiff’s claim that a light-skinned African-American of
‘mixed-race’ heritage is not entitled to protection as a member of this particular protected
class.”); Smith v. Mission Assocs. Ltd. P’ship, 225 F. Supp. 2d 1293, 1299 (D. Kan. 2002)
(“Plaintiffs have all established that they are members of a protected class. Larry and Duane
McFadden are both biracial, being half black and half caucasian.”).

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Accordingly, the Court finds that the KCRA protects mixed-race individuals insofar as
that individual visually appears to belong to a protected class. The Court recognizes that such a
holding could prove difficult to apply in a society increasingly populated by multiracial
individuals, which in turn may inhibit the ability to perceive another’s ethnicity or race. See
Trina Jones, Shades of Brown: The Law of Skin Color, 49 DUKE L.J. 1487, 1551-55 (April 2000).
Nevertheless, the Court is satisfied that Kentucky courts would protect a mixed-race individual
in the present situation, given that Harper admits that the individual appears to be AfricanAmerican. Therefore, Plaintiffs cannot establish a prima facie case for discriminatory failure to
promote, because DeHaan occupies the same protected class as Quiney and Harper.
IV.
Plaintiffs bring a racial discrimination Count under both Title VII and the KCRA, which
courts interpret using the same standards. Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir.
2000) (“Because Ky. Rev. St. Chapter 344 mirrors Title VII of the Civil Rights Act of 1964, we
use the federal standards for evaluating race discrimination claims.”). Absent direct evidence of
discrimination, the Sixth Circuit and Kentucky have adopted the McDonnell Douglas burden
shifting scheme to determine whether a discrimination claim should be submitted to a jury based
on circumstantial evidence. White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir.
2008); Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky. 2005). According to this
framework, the plaintiff bears the initial burden of proving a prima facie case for race
discrimination. White, 533 F.3d at 391. Once accomplished, the burden shifts to the defendant
to provide legitimate, nondiscriminatory reasons for the adverse employment action. Id. If the
defendant is successful in this regard, the burden shifts back to the plaintiff to show that the

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defendant’s asserted nondiscriminatory reasons were mere pretext for discrimination. Id. The
Court will proceed under this analytical framework.
A prima facie case for racial discrimination in the employment context requires the
plaintiff to prove the following: “(1) he is a member of a protected class; (2) he was qualified for
his job; (3) he suffered an adverse employment decision; and (4) he was replaced by a person
outside the protected class or treated differently than similarly situated non-protected
employees.” Id.

Autozone does not appear to contest that Plaintiffs satisfy the first two

elements. As to the final two elements, the parties harbor serious disagreement.
A.
Plaintiffs assert that a number of Autozone’s actions constitute adverse employment
decisions sufficient to support a prima facie case of racial discrimination. The Court will first
address the claims for which Plaintiffs have failed to establish a prima facie case.
i.
Plaintiffs first claim that Autozone’s decision to only interview African-Americans
during the Investigation was an adverse employment decision. An adverse employment action is
“a materially adverse change in the terms and conditions of [the plaintiff’s] employment,”
Hollins v. Atl. Co., Inc., 188 F.3d 652, 662 (6th Cir. 1999), and generally involves material
changes in employment status such as “hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing significant change in benefits.”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

Deciding to interview African-

Americans in the Investigation did not involve a material change in employment status. That
Autozone eventually terminated Quiney and Harper as a result of some comments elicited during

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the interview is inapposite to this claim, which focuses solely on the decision to interview only
African-Americans.
Moreover, the Court finds that Plaintiffs could not show that Autozone treated Plaintiffs
differently than similarly situated non-protected employees involving the Investigation. Perry
named only three witnesses to the sexual harassment she allegedly endured, all three of which
were African-American.

After interviewing the three named witnesses, Brandenburg

interviewed DeHaan, who admitted to some degree of the inappropriate behavior. Autozone had
no need to further investigate the problem or interview other witnesses. Accordingly, Plaintiffs
fail to point to disparate treatment relative to similarly situated non-protected employees in
support of their prima facie case.
ii.
Quiney next claims that Helstern, the Regional Manager, showed favoritism towards
Caucasian employees and DeHaan, in that he spent more time with and spoke only to them.
Plaintiffs have not presented sufficient evidence supporting the fact that Helstern favored his
white employees or DeHaan. Even so, spending more time with and speaking more frequently
to certain employees does not constitute an adverse employment decision as such. See Sands v.
Jackson State Cmty. Coll., 2006 WL 1174469, *5 (W.D. Tenn. Apr. 29, 2006) (“Plaintiff’s
‘workplace dissatisfactions’ with the perceived favoritism shown toward [another employee are]
not actionable under Title VII.”). Plaintiffs fail to present evidence that Helstern’s favoritism
towards other employees affected their employment in any material way. According to the
definition of adverse employment action, Quiney fails to establish a prima facie case for this
claim.

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iii.
Plaintiffs further contend that Autozone’s decisions to transfer both Quiney and Harper
to the Broadway Store were adverse employment actions. However, a decision to transfer
ordinarily does not constitute an adverse employment action where the reassignment does not
result in any loss in prestige or pay, unless such a transfer constituted a constructive discharge.
Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996); Darnell v. Campbell Cnty.
Fiscal Court, 731 F. Supp. 1309, 1313 (E.D. Ky. 1990), aff’d, 924 F.2d 1057 (6th Cir. 1991)
(“The clear trend of authority is to require that a transfer with no change in wages or benefits
amount to a ‘constructive discharge’ to be actionable as an ‘adverse employment action.’”).
Quiney and Harper were both Assistant Managers at other Autozone stores in the
Louisville area prior to their transfers to the Broadway Store. They continued to serve as
Assistant Managers at the Broadway Store upon their initial arrival.

Plaintiffs present no

evidence that the transfer to the Broadway Store brought about a reduction in pay or benefits. In
fact, both indicated they anticipated further promotion after the transfer. Plaintiffs fail to argue
that the transfer to the Broadway Store amounted to constructive discharge. Accordingly, the
transfer to the Broadway Store did not constitute an adverse employment action, so these claims
must fail.
iv.
Harper brings two individual claims of racial discrimination. First, Harper claims that
Helstern’s denial of Harper’s request for a transfer out of the Broadway Store was an adverse
employment decision. A decision to deny a lateral transfer to another store is not, in most
circumstances, an adverse employment action.

See, e.g., Love v. Electric Power Bd. of

Chattanooga, EPB, 392 F. App’x 405, 408 (6th Cir. 2010) (holding that the employer’s failure to

13

grant the plaintiff’s request for transfer did not amount to an adverse employment decision).
This is because a lateral transfer wherein job responsibilities and pay rate remain the same does
not constitute a material change in employment. Plaintiffs have provided no evidence to support
a contrary conclusion. As such, the refusal to transfer Harper from the Broadway Store cannot
support a racial discrimination claim.
Second, Harper contends that his demotion from Assistant Manager to Parts Sales
Manager amounts to an adverse employment action. While demotions can certainly constitute
an adverse employment action, see, e.g., Dye v. Office of the Racing Comm’n, 702 F.3d 286,
302-03 (6th Cir. 2012), this claim fails the fourth prong of the prima facie case for racial
discrimination requiring either replacement by a person outside the protected class or treatment
different from similarly situated, non-protected employees. Here, Helstern made the decision to
demote Harper because the Broadway Store unnecessarily had two assistant managers. While no
one technically replaced Harper in the sense that his demotion left an employment position to be
filled by a new employee, the person assuming his job responsibilities was Quiney, who was a
member of Harper’s protected class. Harper presented no evidence of other non-protected
employees being treated differently. The record bears no evidence that any other Autozone store
unnecessarily employed two assistant managers. Accordingly, this claim must fail.
B.
Finally, Plaintiffs jointly contend that their terminations were adverse employment
actions evidencing racial discrimination. On this claim that the Court does find Plaintiffs have
established a prima facie case of racial discrimination. A termination from employment is the
classic example of an adverse employment decision, and Autozone seems to concede that it

14

replaced Plaintiffs with Caucasian employees. Thus, Plaintiffs have satisfied their burden to
prove a prima facie case for racial discrimination.
The burden now shifts to Autozone to establish legitimate, nondiscriminatory reasons for
Plaintiffs’ terminations. Autozone adamantly contends that it fired Quiney and Harper for their
failure to report instances of purported sexual harassment, a reason unaffected by Quiney and
Harper’s race or color. Autozone reiterates this justification in Quiney and Harper’s termination
notices, testimony during the hearing before the Kentucky Unemployment Commission, and
depositions taken pursuant to this litigation. The Court finds that Autozone has presented
nondiscriminatory reasons for terminating Quiney and Harper, shifting the burden back to
Plaintiffs to show pretext.
The Sixth Circuit has
identified three ways in which a plaintiff may rebut a defendant’s legitimate,
nondiscriminatory reason and demonstrate pretext. The plaintiff may show that
(1) the employer’s stated reason for terminating the employee has no basis in
fact, (2) the reason offered for terminating the employee was not the actual
reason for the termination, or (3) the reason offered was insufficient to explain
the employer’s action.
Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 545 (6th Cir. 2008). Plaintiffs’ ultimate
burden here is to produce “sufficient evidence from which the jury could ‘reasonably reject [the
defendant’s] explanation’ and infer that the defendant[] ‘intentionally discriminated’ against
him.” Braithewaite v. Timken, Co., 258 F.3d 488, 493 (6th Cir. 2001) (quoting Woythal v. TexTenn Corp., 112 F.3d 243, 246 (6th Cir. 1997)).
For the following reasons, the Court finds that Plaintiffs have shown evidence of pretext
sufficient to submit this claim to a jury. First, according to Autozone, Plaintiffs violated a zero
tolerance policy for reporting sexual harassment. However, it is unclear whether such a policy in
fact existed. Autozone cites various internal literature that suggests some reporting and requires
15

others, but Autozone does not make explicit that low-level managers such as Quiney and Harper
must report every instance of potential sexual harassment or face the penalty of termination.
Plaintiffs have shown a genuine issue of material fact as to whether this specific zero tolerance
policy existed, and the Court finds that a reasonable juror could find an absence of such a policy.
In such a situation, firing Quiney and Harper based on a nonexistent policy would likely be
pretextual, because the reasons proffered for termination were not the actual reasons for the
termination.
Second, the Court questions whether, even if such a policy exists, the failure to report
various instances of purported sexual harassment are sufficient to warrant termination. To begin,
identifying sexual harassment is inherently subjective. Playful interaction to one individual may
constitute unwanted and unwelcome touching to another. A single, isolated event may seem
unimportant to some and feel wholly derogatory to others. Autozone’s policy, as written and
explained, seems to provide a bit of discretion as to whether reporting is required, because of the
ambiguous nature of sexual harassment. Of course, as Autozone contends, some behavior is
objectively and patently offensive enough to constitute sexual harassment to reasonable
observers.
In the present situation, however, placing the onerous task of reporting any perceived
slight inappropriateness on low-level managers seems unwarranted.

And certainly firing

someone on that ground appears baseless and unfair. A reasonable juror could find that the
specific incidents witnessed by Quiney and Harper, isolated and over a three-week span, did not
amount to sexual harassment, such that firing them for the failure to report the incidents is an
insufficient reason for that employment decision.3 Accordingly, the Court finds a genuine
question of fact as to whether Quiney and Harper witnessed sexual harassment at all, triggering
3

 Of course, a jury could conclude otherwise.

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the alleged zero tolerance reporting policy, and whether the failure to report those incidents was
sufficient to justify termination. If they did not witness obvious acts of sexual harassment, the
reason for firing Plaintiffs could again be pretextual.
In sum, Plaintiffs have presented a valid case for racial discrimination based on their
terminations, and the Court will deny Autozone’s motion for summary judgment as to this claim.
C.
Plaintiffs bring racial discrimination claims under both single-motive and mixed-motive
theories of liability. Spees v. James Marine, Inc., 617 F.3d 380, 390 (6th Cir. 2010) (finding that
a plaintiff can trigger a mixed-motive analysis by giving notice of bringing such claims). The
single-motive theory of liability is analyzed above, and because the Court found that racial
discrimination based on Plaintiffs’ terminations satisfied Plaintiffs’ burdens of proof upon
summary judgment on a single-motive theory, the Court need not examine that claim under the
mixed-motive framework.
The Sixth Circuit has determined that the McDonnell Douglas burden shifting scheme
does not apply to a mixed-motive claim.4 White, 533 F.3d at 400. The Sixth Circuit succinctly
explained the mixed-motive theory as follows:
[T]o survive a defendant’s motion for summary judgment, a Title VII plaintiff
asserting a mixed-motive claim need only produce evidence sufficient to
convince a jury that: (1) the defendant took an adverse employment action
against the plaintiff; and (2) race, color, religion, sex, or national origin was a
motivating factor for the defendant’s adverse employment action. This burden
of producing some evidence in support of a mixed-motive claim is not onerous
and should preclude sending the case to the jury only where the record is devoid
of evidence that could reasonably be construed to support the plaintiff's claim.
Id. (internal citations omitted)
4

Plaintiffs only assert their mixed-motive claim under the federal law, as evidenced in their response to the motion
for summary judgment. Accordingly, the Court will not analyze the mixed-motive analysis as prescribed under
Kentucky law, which is different from that under federal law. See Alexander v. Univ. of Ky., 2012 WL 1068764,
*15 (E.D. Ky. Mar. 28, 2012) (“Importantly, however, Kentucky treats its mixed-motive formulation as distinct from
that of Desert Palace, Inc. v. Costa, 123 S.Ct. 2148 (2003).”).

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This lenient summary judgment standard is counterbalanced by potential
restrictions on a plaintiff's recovery for a mixed-motive claim. Under a mixedmotive theory of discrimination, [the plaintiff] can only recover declaratory
relief, injunctive relief, and attorney's fees and costs directly attributable to the
mixed-motive claim.
Megivern v. Glacier Hills Inc., 2013 WL 2097373, *16 (6th Cir. May 16, 2013) (citing 42
U.S.C. § 2000e–5(g)(2)(B)) (internal citation omitted).

Plaintiffs cannot establish the first

element of a mixed-motive claim as to most of their claims, because, as discussed above,
Plaintiffs fail to allege an adverse employment action for each of the discrimination claims
except for Harper’s demotion. The Court will limit its federal mixed-motive analysis to that
particular claim.
While Harper’s duty to produce some evidence showing that his race was a motivating
factor in his demotion is not onerous, it requires enough “evidence from which a jury could
reasonably infer that [Harper’s] race was a motivating factor in the [demotion].” White, 533
F.3d at 404. In Plaintiffs’ lengthy brief in opposition to this motion, and in the course of
Harper’s deposition, the Court finds no evidentiary support of even a partial racial animus in
pursuing Harper’s demotion. Plaintiffs, in their response, allege that Helstern demoted Harper
because the Broadway Store had two African-American Assistant Managers, ECF No. 54, but
the Court is not inclined to accept such conclusory allegations without sufficient support. Wright
v. Murray Guard, Inc., 455 F.3d 702, 713 (6th Cir. 2006) (holding that plaintiff’s unsupported,
conclusory remarks are insufficient to support a mixed-motive claim for discrimination). Here,
that support is lacking. In fact, the Court gathers from Harper’s deposition that he believed his
demotion was simply the result of having two assistant managers at one store, which was

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apparently against company policy.5 Plaintiffs’ mixed-motive claim for racial discrimination
based on Harper’s demotion thus fails under Title VII.
V.
Finally, the Court considers Plaintiffs’ retaliation claims, which are based on their
opposition to DeHaan’s sexual harassment of Perry. Federal law “prohibits an employer from
retaliating against an employee who has ‘opposed’ any practice by the employer made unlawful
under Title VII; and prohibits an employer from retaliating against an employee who has
‘participated’ in any manner in an investigation under Title VII.” Johnson, 215 F.3d at 578.
Kentucky courts interpret retaliation law under the KCRA consistent with the interpretation of
unlawful retaliation under Title VII. Brooks v. Lexington-Fayette Urban Cnty. Hous. Auth., 132
S.W.3d 790, 801-02 (Ky. 2004). The Sixth Circuit and Kentucky have adopted the McDonnell
Douglas burden shifting scheme to evaluate retaliation claims. Id.; Johnson, 215 F.3d at 578.
Plaintiff must show the following to establish a prima facie case for retaliation: “(1) he
engaged in activity protected by Title VII; (2) the exercise of his civil rights was known to the
defendant; (3) thereafter, the defendant took an employment action adverse to the plaintiff, and
(4) there was a causal connection between the protected activity and the adverse employment
action.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). Though Autozone
appears to concede that Plaintiffs have established a prima facie case for retaliation, the Court is
not so sure.
The Court submits that Plaintiffs have established the first three elements. Assuming that
participating in the Investigation is a protected activity, Autozone, the sponsor of the
5

The Court recognizes that Harper has alleged or presented some evidence suggesting that Helstern and other
Autozone employees may have harbored some discriminatory views and exhibited discriminatory behavior, such as
telling African-Americans they are a good fit for a store located in a high-crime rate area with a majority AfricanAmerican customer base. However, Harper does not connect this evidence to his demotion.

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Investigation, was aware of the protected activity and Plaintiffs suffered termination. However,
the Court takes issue with the causation element.
“To establish the causal connection required in the fourth prong, a plaintiff must produce
sufficient evidence from which an inference could be drawn that the adverse action would not
have been taken had the plaintiff not [engaged in the protected activity].” Id. Quite literally,
Autozone would not have terminated Plaintiffs had it not discovered that Plaintiffs witnessed
some admittedly inappropriate behavior during the Investigation. However, something more
than mere sequential causation is required. Autozone fired Plaintiffs, lawfully or not, for failing
to report the alleged sexual harassment, not for actually participating in the Investigation. The
cause of their firing was largely independent of their participation in the Investigation, except
that the Investigation provided the context for admission of the failures to report.
The Court is confounded by Autozone’s retaliation claim. Autozone initiated, sponsored,
and carried out the Investigation. At the culmination of the Investigation, Autozone fired the
person investigated. Essentially, then, Plaintiffs argue that Autozone fired them for assisting in
Autozone’s opposition to sexual harassment. The classic case of retaliation is just the opposite.
Typically, the plaintiff opposes some action or policy of the employer, and the employer
terminates or demotes the employee in reaction to that opposition. Here, Plaintiffs attempt to
transform the retaliation claim to fit a situation where the plaintiffs in fact comply with the
employer’s protected activities. This is simply not a cognizable claim under federal or state
retaliation law. Accordingly, Plaintiffs’ retaliation claims fail.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants Autozone Stores, Inc., Autozone
Development Corp., Autozone Texas, L.P., and Autozone, Inc. are DISMISSED.

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IT IS FURTHER ORDERED that Defendant AutoZoners, LLC’s motion for summary
judgment as to any claims concerning Autozone’s issuance of the July 2010 Corrective Action
Reviews against Quiney and Harper, alleged negative employment reference of Harper, and
Autozone’s failure to promote Quiney and Harper is SUSTAINED, and these claims are
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendant AutoZoners, LLC’s motion for summary
judgment as to Plaintiffs’ racial discrimination claim based on Plaintiffs’ terminations is
DENIED.
IT IS FURTHER ORDERED that Defendant AutoZoners, LLC’s motion for summary
judgment as to Plaintiffs’ other racial discrimination claims and Plaintiffs’ claims for retaliation
is SUSTAINED and those claims are DISMISSED WITH PREJUDICE.

June 4, 2013

cc:

Counsel of Record

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