Micca v. Compass Group USA, Inc.

Filing 10

MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 5/22/15; granting Defendant Compasss Motion to Dismiss, DN 5, as to all claims in Plaintiff Miccas Complaint. DN 1-2. A separate order and judgment will be entered this date in accordance with this Memorandum Opinion.cc:counsel (TLG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
PIETRO MICCA

PLAINTIFF
NO. 3:14-CV-693-CRS

v.
COMPASS GROUP USA, INC.
d/b/a Eurest Dining Services

DEFENDANTS

MEMORANDUM OPINION
This matter is before the Court on Motion by the Defendant, Compass Group USA, Inc.,
d/b/a Eurest Dining Services (“Compass”), to Dismiss all claims in Plaintiff Pietro Micca’s
(“Micca”) Complaint (DN 1-2) pursuant to Fed. R. Civ. P. 12(b)(6). DN 5. Fully briefed, the
matter is now ripe for adjudication. Having considered the parties’ respective positions, the
Court concludes that Plaintiff has failed to plead sufficient facts to raise any right to relief. For
the reasons set forth below, the Court will grant Defendant’s Motion to Dismiss.
I.
Plaintiff, Pietro Micca (“Micca”), was born in the country of Italy and was approximately
sixty-two (62) years old at the time he filed the Complaint at issue. DN 1-2. He asserts several
claims against his previous employer, Defendant, Compass Group USA, Inc., d/b/a Eurest
Dining Services (“Compass”), based on the following allegations.
Micca worked as General Manager of Food Services at Compass for a period of
approximately fourteen (14) years. Id.

Painting a picture of satisfactory performance, he

contends that, during his time as General Manager, Compass designated him as “manager of the
year” in at least one year, that he received increased “income, revenue, and profits,” and that he

reduced costs and expenses for Compass’s operation. Id. He then alleges that on or about
September 30, 2013, Compass terminated his “long time employment . . . without due or just
cause.” DN 1-2, p. 3. Compass’s “actions and conduct,” Micca explains, constituted wrongful
termination, harassment, discrimination, and retaliation against him. Id. He therefore concludes
that Compass’s “acts and omissions” – acts and omissions that, aside from his termination, are
not alleged anywhere in the Complaint – were in violation of various federal statutes, laws, rules,
and regulations prohibiting unequal and unfair treatment in employment due to age, national
origin, and ethnicity. Id.
As a result of Compass’s alleged conduct, Micca filed this action in Jefferson Circuit
Court asserting violations of: the Kentucky Unlawful Discrimination by and Employer Act, Ky.
Rev. Stat. Ann. § 344.040; the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) (“Title VII”); the
Age Discrimination in Employment Act, 42 U.S.C. § 621 (“ADEA”); the Civil Rights Act of
1991, 42 U.S.C. § 1991; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Age Discrimination
Act of 1975, 42 U.S.C. § 6101; 42 U.S.C. § 1983, and; the Zero Tolerance Discrimination and
Harassment Policy of the Compass Group Associate Handbook. DN 1-2.

The matter was

removed to this Court, and Compass now moves us to dismiss Micca’s Complaint.
II.
To overcome a motion to dismiss, a complaint must contain sufficient facts to state a
claim for relief that is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). As explained in Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009):
A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. [Twombly, supra.] at 556, 127 S.Ct. 1955. The plausibility

standard is not akin to a “probability requirement,” but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint
pleads facts that are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of ‘entitlement to relief.’” Id.
at 557, 127 S.Ct. 1955 (bracket omitted).
As noted in Southfield Education Association v. Southfield Board of Education, No. 13-1600,
2014 WL 2900928 (6th Cir. June 26, 2014), “A complaint will be dismissed pursuant to Rule
12(b)(6) if no law supports the claim made, if the facts alleged are insufficient to state a claim, or
if the face of the complaint presents an insurmountable bar to relief.” Twombly, 550 U.S. at 56164.” Southfield Ed. Assoc., 2014 WL 2900928 at *2. “The factual allegations, assumed to be
true, . . . must show entitlement to relief” under “some viable legal theory.” Id. at *2 (quoting
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)).
Threadbare recitals of the elements of a cause of action that are supported by mere conclusory
statements, however, will not suffice. Howard v. City of Girard, Ohio, 346 F. App'x 49, 51 (6th
Cir. 2009)(citation omitted).
III.
Compass contends that the Court should dismiss all of the claims contained in Micca’s
Complaint because the Complaint fails to state any claims that are plausible on their face.
Compass alternatively asserts that Micca’s Title VII and ADEA claims should be dismissed
because Micca failed to exhaust his administrative remedies prior to filing suit. In response,
Micca only contests dismissal of his claims of discrimination, harassment, and retaliation under
the Kentucky Unlawful Discrimination by an Employer Act (“KUDEA”), Ky. Rev. Stat. Ann. §
344.040. As such, Micca’s claims under Title VII, the ADEA, 42 U.S.C. § 1981, 42 U.S.C. §
1983, the Age Discrimination Act of 1975, 42 U.S.C. § 6101, and Compass’s Zero Tolerance

Discrimination and Harassment Policy will be dismissed, and we will limit our analysis to
Micca’s claims under the KUDEA.
To that end, we turn to the allegations contained in the Complaint. Micca alleges, in
relevant part therein, that:
. . . [T]he Defendant terminated the long time employment of the Plaintiff
4.
without due or just cause;
5.
That the Defendant’s actions and conduct constituted wrongful
termination, harassment, discrimination and retaliation against the Plaintiff, who
is approximately 62 years of age and born in the country of Italy;
The Plaintiff was employed with the Defendant as a General Manager of
6.
Food Services . . . with duties consisting of general manager and supervisor of
food service operations . . . including personnel matters and issues and general
supervision of all related food services;
7.
During the term of employment, the Plaintiff was designated as manager
of the year, received increased income, revenue and profits and reduced costs and
expenses of the food service operation;
8.
The Defendant’s acts and omissions were in violation of various state and
federal statutes, laws, rules and regulations prohibiting unequal and unfair
treatment in employment due to age, national origin and ethnicity;
DN 1-2 (emphasis added).

Although Micca asserts claims for harassment, discrimination,

retaliation, and unequal treatment (as indicated by the Court’s emphasis), we note that
harassment, retaliation, and unequal treatment – respectively referred to in legal terms as hostilework environment, retaliation, and disparate treatment – are each a distinct type of
discrimination claim. Under Ky. Rev. Stat. Ann. § 344.040, harassment and unequal treatment
are actionable if the plaintiff was discriminated against based on his or her protected status. See
Schramm v. Slater, 105 F. App'x 34, 38 (6th Cir. 2004); see also Mills v. Gibson Greeting, 872
F. Supp. 366 (E.D. Ky. 1994) (explaining that Kentucky courts follow federal law in interpreting
its anti-discrimination statute, Ky. Rev. Stat. Ann. § 344.040); Meyers v. Chapman Printing Co.,

840 S.W.2d 814, 821 (Ky. 1992) (assessing Ky. Rev. Stat. Ann. § 344.040 discrimination claims
under the standards laid out in federal law). A claim of retaliation under Ky. Rev. Stat. Ann. §
344.040, however, is actionable if the plaintiff was discriminated against based on his or her
having engaged in protected activity. Flock v. Brown-Forman Corp., 344 S.W.3d 111, 118 (Ky.
Ct. App. 2010). Hence, Micca has asserted three distinct discrimination claims: disparatetreatment, harassment, and retaliation.

And because each claim has its own analytical

framework, see id., the Court will assess them separately.
A. Disparate Treatment
The parties do not dispute that Micca’s first discrimination claim under Ky. Rev. Stat.
Ann. § 344.040 is for unequal or “disparate” treatment on the basis of age, national origin, and
ethnicity. Compass argues, however, that Micca has not stated a plausible claim because he has
not alleged “a single fact linking Defendant’s decision to terminate him to that of his age or the
country in which he was born.” DN 5-1, p. 5. The Court concurs.
To survive a motion to dismiss, a plaintiff pursuing a disparate-treatment claim must
allege specifics showing: 1). that the defendant treated a similarly-situated employee, who is not
of the plaintiff’s protected class, more favorably than the plaintiff; and, 2). how the plaintiff was
treated less favorably. Id. In the absence of such allegations, a court would have to infer that a
defendant’s decision-making regarding a plaintiff’s employment was discriminatory simply
based on the fact that the plaintiff is part of a protected class, as opposed to any other, nondiscriminatory basis. See Downs v. Bel Brands USA, Inc., No. 4:14-CV-00016-JHM, 2014 WL
4211199, at *3 (W.D. Ky. Aug. 25, 2014) (quoting id. at 627). Thus, as the Sixth Circuit held in
Sam Han v. University of Dayton, a plaintiff cannot argue that he is entitled to a reasonable
inference of discrimination after an adverse employment action simply because he was good at

his job and is a member of a protected group. Sam Han v. Univ. of Dayton, 541 F. App'x 622,
627 (6th Cir. 2013) cert. denied sub nom. Han v. Univ. of Dayton, 134 S. Ct. 2699, 189 L. Ed. 2d
741 (2014).
Here, Micca’s Complaint fails to state a disparate-treatment claim because it does not
identify any American-born or more-youthful employees who were treated more favorably than
Micca under similar circumstances. See Taylor v. 3B Enterprises, LLC, No. 3:13-CV-259-S,
2014 WL 4916334, at *6 (W.D. Ky. Sept. 30, 2014). In fact, the Complaint only alleges that
Micca was terminated “without due or just cause;” but as stated above, Micca cannot ask the
Court to infer discrimination because he was good at his job, is sixty-two (62), and was born in
Italy. Moreover, claiming that he was terminated “without due or just cause” is conjecture that
provides nothing more than a “remote and unspecific possibility of discrimination” and reflects
the exact type of “unadorned, the defendant-unlawfully-harm[ed]-me accusations” that Twombly
and Iqbal sought to eliminate. Id. (quoting Iqbal, 556 U.S. at 678).
In other words, Plaintiff has drawn inferences of discrimination that are wholly
unsupported by the facts alleged in the complaint, and the Court is not required to, and does not,
accept them. Sam Han, 541 F. App’x at 627. Even accepting his allegations as true and
reviewing them in a light most favorable to him, we find that Micca has set out a context in
which any inference of intentional discrimination would be implausible and purely speculative.
Id. Therefore, we will grant Compass’s motion to dismiss on Micca’s disparate-treatment claim.
B. Harassment
The conclusion we have reached with regards to Micca’s disparate-treatment claim also
applies to his claim of harassment. Taylor, 2014 WL 4916334 at *7. In order for workplace
harassment based on age or national origin to be actionable, it must be egregious enough to

create an “objectively hostile work environment.” Malloy v. Potter, 266 F. App'x 424, 428 (6th
Cir. 2008) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 22-23, 114 S.Ct. 367, 126 L.Ed.2d
295 (1993); Williams v. General Motors Corp., 187 F.3d 553, 568 (6th Cir.1999) (finding that a
plaintiff must show that the work environment is both objectively and subjectively hostile))
(age); Boutros v. Canton Reg'l Transit Auth., 997 F.2d 198, 200 (6th Cir. 1993) (national origin).
And in order to establish a prima facie case of a hostile work environment, a plaintiff must
demonstrate that: 1). he is a member of a protected class; (2) he was subjected to harassment,
either through words or actions, based on his protected status; (3) the harassment had the effect
of unreasonably interfering with his work performance and creating an objectively intimidating,
hostile, or offensive work environment; and (4) there exists some basis for liability on the part of
the employer. Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th Cir. 2009).
Here, however, the Complaint does not even attempt to establish factual bases for
“harassment . . . based on [Micca’s] protected status” or that such harassment “unreasonably
interfere[ed]” with [Micca’s] work performance. See Taylor, 2014 WL 4916334 at *7. He has
therefore failed to allege any behavior that a reasonable person could evaluate under the hostilework-environment framework.

Because we find that Micca’s Complaint lacks any factual

content to support a plausible inference of a hostile work environment, we will dismiss his
harassment claim. Id.
C. Retaliation
Finally, we find that Micca has also failed to plead a plausible retaliation claim. A
plaintiff alleging retaliation must show that: 1). he engaged in protected activity; 2). that he
suffered an adverse employment action; and 3). that there was a causal connection between the
adverse employment action and the protected activity. Fenton v. HiSan, Inc., 174 F.3d 827, 831

(6th Cir. 1999). Again, however, Micca has not plead any facts suggesting that he engaged in
protected activity of any sort or from which we can infer a causal connection between his
termination and any protected activity. Roof v. Bel Brands USA, Inc., No. 4:14CV-00071-JHM,
2014 WL 5243051, at *8 (W.D. Ky. Oct. 15, 2014). We will dismiss Micca’s retaliation claim
for these reasons.
IV.
For the reasons set forth herein, we will grant Defendant Compass’s Motion to Dismiss,
DN 5, as to all claims in Plaintiff Micca’s Complaint. DN 1-2. A separate order and judgment
will be entered this date in accordance with this Memorandum Opinion.

May 22, 2015

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