Reed v. Gulf Coast Enterprises et al

Filing 56

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 10/26/2017 denying 50 Motion for Summary Judgment. cc: Counsel(JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-00295-JHM
ROBERT RAY REED

PLAINTIFF

V.
GULF COAST ENTERPRISES, et al

DEFENDANTS

MEMORANDUM OPINION & ORDER
This matter is before the Court on a motion for summary judgment by defendant, The
Ginn Group, Inc. (“Ginn Group”). (DN 50.) Fully briefed, this matter is ripe for decision.
I.

BACKGROUND

This case arises out of plaintiff Robert Ray Reed’s employment with and subsequent
termination from defendant Gulf Coast Enterprises (“GCE”). According to the complaint, from
November 2010 to November 2012, Reed, who is disabled, was employed by GCE. (Compl.
[DN 1-2] ¶¶ 2–3, 17–18, 37.) On March 16, 2015, Reed filed a complaint in state court against
GCE, the Ginn Group, SourceAmerica, and Gary Matthews, an employee of the Ginn Group.
Reed asserted claims for (1) disability discrimination in violation of the Kentucky Civil Rights
Act (“KCRA”), KRS § 344.040; (2) negligent hiring/retention/supervision; (3) promissory
estoppel; (4) failure to protect; (5) civil conspiracy; (6) civil conspiracy (retaliation) in violation
of KRS § 344.280; (7) retaliation (EEOC) in violation of KRS § 344.280; and (8) negligent
infliction of emotional distress.
On April 20, 2015, SourceAmerica, GCE, and the Ginn Group removed the case from state
court to this Court. (DN 1.) SourceAmerica later moved for either judgment on the pleadings or
summary judgment as to all claims asserted against it by Reed. (DN 9.) After ordering briefing
on whether this Court possessed subject matter jurisdiction (DN 17), the Court determined that

the parties were diverse so as to give this Court jurisdiction and granted SourceAmerica’s motion
as to all claims against it. (DN 20.) The Ginn Group now moves for summary judgment as to
seven of the eight claims made against it,1 relying largely on this Court’s prior decision granting
judgment in SourceAmerica’s favor. (DN 50.) Reed has responded in opposition to the Ginn
Group’s motion. (DN 55.)
II.

STANDARD OF REVIEW

Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by “citing to
particular parts of materials in the record” or by “showing that the materials cited do not
establish the absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1). “The mere existence
1

The Ginn Group did not move for summary judgment as to Count IV for failure to protect, as it makes no explicit
mention of that claim in its motion. It does states that the motion “incorporates by reference the Courts
Memorandum Opinion & Order [DN 20], granting Co-Defendant Source America’s Motion for Summary Judgment
on the following claims,” but it does not include the failure to protect claim in that list. Regardless of whether this
omission was deliberate or accidental, the Court does not construe the motion as including Count IV.

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of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 252.
III.

DISCUSSION

The Ginn Group has moved for summary judgment as to seven of the claims asserted
against it by Reed. In support of its motion, it argues that it is was not in the requisite employeremployee relationship with Reed that is required for a claim of employment discrimination. It
also cites to the Court’s prior decision granting judgment on the pleadings in favor of
SourceAmerica, as Reed had also failed to establish that he was in an employer-employee
relationship with SourceAmerica.
The KCRA is interpreted consistently with federal antidiscrimination laws when similar
language is used in both. See Laferty v. United Parcel Service, Inc., 186 F. Supp. 3d 702, 707–
08 (W.D. Ky. 2016) (“courts interpret the KCRA consistent with the [Americans with
Disabilities Act]”); Brooks v. Lexington-Fayette Urban Cty. Hous. Auth., 132 S.W.3d 790, 802
(Ky. 2004) (interpreting “retaliation” under the KCRA consistent with the its interpretation under
Title VII). To be liable for a claim of employment discrimination, the defendant must be in an
employer-employee relationship with the plaintiff. Sanford v. Main St. Baptist Church Manor,
Inc., 449 F. App’x 488, 491 (6th Cir. 2011) (applying both Title VII and the KCRA). There are
different theories under which an entity can be considered an employer, with two being relevant
to this case. Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997)
(listing theories under which defendant could be considered “employer” of plaintiff under Title
VII). Under the direct employment theory, an employee works directly for the employer, while
under the joint employer theory, “one defendant has control over another company’s employees
[so that] the two companies are acting as a ‘joint employer’ of those employees.” Id. (citations
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omitted). Four factors will generally be considered in determining whether a joint employer
relationship exists: “the interrelation of operations between the companies, common
management, centralized control of labor relations, and common ownership.”

Int’l

Longshoremen’s Ass’n v. Norfolk S. Corp., 927 F.2d 900, 902 (6th Cir. 1991) (citations omitted).
In support of its motion, the Ginn Group has attached an affidavit from its director of
human resources that states that Reed was employed by GCE and that the Ginn Group did not
employ Reed, take any action with respect to Reed’s employment, or influence GCE or any other
entity to take action. (Pettigrew Aff. [DN 50-2] ¶¶ 1–4.) In response, Reed argues that a
genuine dispute exists in regards to whether the Ginn Group was a joint employer with GCE so
as to be considered his employer under the KCRA. He cites to factual allegations in his
complaint to support this argument; however, despite Reed characterizing his initial pleading as a
verified complaint, the complaint is not verified. (See Pl.’s Compl. [DN 1-2] at 9–14.)
As stated previously, under Fed. R. Civ. P. 56 and the Supreme Court decisions in
Celotex, Anderson, and Matsushita, a motion for summary judgment is to be evaluated under a
burden-shifting scheme. This scheme presents two close questions in this case. First, has the
Ginn Group met its burden through its affidavit that summarily states that it did not employ
Reed? And second, if that burden has been met, does Reed’s invocation of the joint employer
theory, while mentioning no facts from the record, adequately rebut this showing?
The affidavit submitted by the Ginn Group is competent evidence that this Court may
consider in deciding the present motion; Fed. R. Civ. P. 56(c)(1)(A) permits parties moving for
summary judgment to cite to affidavits to support the assertion that there is no genuine factual
dispute. However, this affidavit leaves much to be desired. It lacks many of the details about the
business relationship between the corporate defendants in this case that were included in a prior

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affidavit, submitted by SourceAmerica, that the Court found sufficient to grant judgment in its
favor. (See Cooke Aff. [DN 9-2] ¶¶ 1–9.) These details would be useful to the Court in
evaluating the four factors that are generally considered when determining if two entities are
joint employers. Further, while the Sixth Circuit appears to have never addressed the issue, other
Courts of Appeals have found motions for summary judgment that are only supported by a single
affidavit that is “conclusory and lacking in specific facts” to be insufficient. Maldonado v.
Ramirez, 757 F.2d 48, 51 (3d Cir. 1985) (quotations omitted). But see Washington v. Louisiana,
628 F. App’x 914, 918 (5th Cir. 2015) (“A single affidavit can support summary judgment”)
(citations omitted).
The Court finds that the Ginn Group has not met its burden as the moving party under the
summary judgment standard, and the Court will not grant summary judgment in its favor at this
time. The parties have agreed that there are additional facts to be discovered. (DN 54.) The
Court will extend the discovery deadline as well as the deadline for dispositive motions by
separate Order. The Ginn Group may refile its motion for summary judgment at that time.
IV. CONCLUSION
For these reasons, IT IS HEREBY ORDERED that the motion for summary judgment
by the Ginn Group, Inc. (DN 50) is DENIED.

October 26, 2017

cc:

Counsel of Record

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