Pettway v. Logistics Solutions Group, Inc.
Filing
43
MEMORANDUM OPINION AND ORDER Signed by Judge David J. Hale on 2/28/2020 - LSG's motion for summary judgment (D.N. 40 ) is GRANTED as to Counts I, II, III, IV, VIII, X, XI, and XII of the amended complaint. The claims asserted in those counts are DISMISSED. The motion is DENIED as to Counts V, VI, VII, and IX. This matter is referred to Magistrate Judge Colin H. Lindsay for a status conference and all other purposes consistent with the original referral. (See D.N. 6 ) (KD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
ABRAHAM PETTWAY,
Plaintiff,
v.
Civil Action No. 3:17-cv-73-DJH-CHL
LOGISTICS SOLUTIONS GROUP, INC. et
al.,
Defendants.
* * * * *
MEMORANDUM OPINION AND ORDER
Plaintiff Abraham Pettway alleges that Defendant Logistics Solutions Group, Inc.
discriminated against him on the bases of age, race, sex, and perceived disability in violation of
state and federal law. (Docket No. 20, PageID # 212-19) He also alleges that LSG retaliated
against him for making complaints to his employer and to the Equal Opportunity Commission, and
for filing a complaint in this matter. (Id., PageID # 219-221) Finally, Pettway asserts claims under
Kentucky common law, alleging outrageous conduct and negligent supervision.
(Id.,
PageID # 222-24) LSG moves for summary judgment on all of Pettway’s claims. (D.N. 40-1)
After careful consideration and for the reasons set out below, LSG’s motion for summary judgment
will be granted in part and denied in part.
I.
The following description of the factual background is atypically long. The Court finds it
necessary to outline the facts in significant detail given that the discovery record provided by the
parties is disordered.
LSG—a subcontractor to Logistics and Technology Services, Inc.—provides logistical
services to government clients at the U.S. Army’s Fort Knox post in Kentucky. (D.N. 40-2,
PageID # 397; D.N. 40-10, PageID # 667) Pettway, an 81-year-old African American man, has
1
been employed as a civilian bus dispatcher at Fort Knox since June 1, 2001, and is the most senior
dispatcher at the Fort Knox Transportation Motor Pool location. (D.N. 41-1, PageID # 723)
Pettway was an employee of the prior subcontractor until LSG began providing support services
at Fort Knox on February 15, 2015. (D.N. 40-2, PageID # 398) At that time, Pettway became an
employee of LSG. (Id.)
Pettway worked under the supervision of Donnell Scott, a white woman, from 2010 until
Scott left LSG in 2017. (D.N. 41, PageID # 703) Pettway testified that Scott began discriminating
against him in 2013. (D.N. 40-5, PageID # 466) Specifically, Pettway says that in 2013, he
overheard Scott telling Kelly Denson—a white dispatcher—that she was “going to put [Pettway]
on nights and put him back so the less [she] s[aw] of him . . . the better.” (Id.) Between February
2013 and September 2013, Pettway was moved from the 4:30 a.m. to 12:00 p.m. shift to the 3:00
p.m. to 12:00 a.m. shift.1 (Id., PageID # 466-67)
Pettway testified that after returning from vacation on August 9, 2016, he was told that
Kathy Wheeler—a younger white female employee with no dispatch experience—would assign
the buses. (Id., PageID # 453) In his declaration, Pettway stated that prior to that point, he had
Pettway’s claims cover the time period from 2015 to 2017. (D.N. 20, PageID # 199-211) But,
the factual record created by the parties addresses the preceding period involving the same
employees. In his amended complaint, Pettway noted that Akima was his prior employer from
2012 until LSG assumed in the contract in 2015. (Id., PageID # 200) Pettway’s claims against
Akima were addressed in a prior opinion. (See D.N. 36) When LSG assumed the contract, it hired
most of the prior contractor’s employees. (D.N. 40-2, PageID # 397) Scott confirmed in her
deposition that new contractors “hire the incumbent” and that she was kept in her supervisor
position when LSG assumed the contract in 2015. (D.N. 40-4, PageID # 419-20) By discussing
the prior history between Scott and Pettway, the Court does not rest its conclusions on facts from
a time period not in dispute except as to the discrete issue of determining whether Scott had the
scienter necessary to impute her alleged discriminatory animus to Gonsalves, the decisionmaker,
under a “cat’s paw” theory of liability. See infra Part II(B)(1)(i)(A) at page 18.
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always assigned buses to drivers for their runs. 2 (D.N. 41-1, PageID # 724) Despite the fact that
Wheeler had the sole authority to assign buses, Pettway made changes to Wheeler’s bus schedules
on two occasions. (D.N. 36-2, PageID # 453) In his declaration, Pettway says that Scott did not
tell not him that he was going to receive a written counseling or warning after the first such
incident. (D.N. 41-1, PageID # 724) Instead, Scott explained the need for rotating the buses. (Id.)
Pettway again made a change to the schedule on September 27, 2016, after he and another
employee could not find the bus-assignment sheet. (Id.) Pettway testified that he assigned buses
without the schedule to avoid being in trouble. (D.N. 40-5, PageID # 449)
On September 30, 2016, Pettway received a written warning—otherwise known as an
“employee counseling report”—for key log errors and for failure to follow the September 27 bus
schedule. (D.N. 41, PageID # 707) Specifically, Pettway’s write-up stated:
On September 27, 2016[,] you assigned the day schedule buses and did not assign[]
all the buses correctly. The supervisor spoke with you two different times about the
same mistake. The last time the supervisor explained that if you did not follow the
direction given you would receive a written/counseling/warning . . . . Insubordination
will not be tolerated.
....
Dispatch is one of the most important sections of TMP. It is your job to secure the
building, gates, and keys every night . . . . It has been brought to my attention several
times that you are not signing keys back in on the [form]. Other dispatchers are
signing your name to keep the records in compliance. I put a stop to this once I found
out. I ask the other dispatchers if they see a mistake like this to bring it to my
attention . . . . Occurrences of this type of behavior violate[] LSG rules and
2
The submitted record shows that Pettway was deposed (D.N. 40-5), yet he also submitted a
declaration (D.N. 40-6). Sixth Circuit precedent “prevents a party from submitting a new affidavit
[or declaration] to manufacture a factual dispute by contradicting . . . earlier testimony.” Webb v.
United States, 789 F.3d 647, 660-61 (6th Cir. 2015). But, not every post-deposition affidavit or
declaration is prohibited. If the affidavit or declaration directly contradicts prior sworn testimony,
the Court may still consider that evidence if the party opposing summary judgment provides a
persuasive justification for the contradiction. Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899,
908 (6th Cir. 2006). If there is no direct contradiction, “then the district court should not strike or
disregard that affidavit [or declaration] unless the court determines that the affidavit ‘constitutes
an attempt to create a sham fact issue.’” Id. The Court has followed the Sixth Circuit’s instruction
when reconciling any inconsistencies between Pettway’s deposition testimony and his declaration.
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policies . . . . Failure to correct one or both incidents will result in suspension up to
termination.
(D.N. 40-6, PageID # 568) In his deposition testimony, Pettway acknowledged these errors and
also admitted that he had previously been warned about switching buses and told to follow the
schedule. (D.N. 40-5, PageID # 455, 458) But, in his subsequent declaration, Pettway maintains
that Scott had never spoken to him or verbally counseled him about key log errors before the
September 30 write-up. (D.N. 41-1, PageID # 724)
Scott then called Pettway in for a meeting regarding his write-up. (Id.) Pettway signed the
written warning for his infractions without providing any explanation for the errors. (Id.) Pettway
testified that he did not write his own explanation of events because he “wasn’t sure what was
going on at that time.” (Id., PageID # 455) Pettway felt as though the write-up was unfair because
“I figured if I was going to get written up, Ms. Wheeler should have [been] written up too.” (Id.,
PageID # 452) The night after receiving the September write-up, Pettway again failed to sign in a
key for a vehicle returned during his evening shift. (Id., PageID # 459)
On October 6, 2016, the agency overseeing the civilian subcontractors at Fort Knox
announced a need for an “immediate” reduction in dispatcher hours. (D.N. 40-1, PageID # 374)
Rob Deitrich, the Business Manager at LTS, sent an email to Tiffany Berry and Casey Palmer—
Regional Operations Managers at LTS—stating that he had attended a meeting and that
[a]s the conversation progressed [the agency] made it very clear that they want to see
immediate staffing changes in reference to Dispatchers. To make a long story short[,]
we were told that dispatchers were not needed to be there between 0500 and midnight,
nor did they need to be there on days when there were no bus runs . . . . They made it
very clear they expect the changes to take effect immediately . . . .
(D.N. 40-9, PageID # 665) LSG states that it was initially asked to eliminate several full-time
positions, but that it advocated to keep the positions, with partial success.
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(D.N. 40-1,
PageID # 375) While no employees were laid off, a bus driver, a truck driver, and dispatcher
position were reduced from full to part-time. (Id.)
LSG stated that Jarret Gonsalves, the highest-ranking LSG employee onsite at Fort Knox,
was tasked with deciding which employees would be affected by the mandated reduction. (Id.)
On October 11, 2016, Gonsalves emailed Donna Navarro—Vice President and Director of Human
Resources & Finance for LSG—to ask whether the decision should be made “based on seniority
and/or performance.” (D.N. 40-9, PageID # 662; D.N. 40-2, PageID # 397) Navarro responded
that it was Gonsalves’s choice, and that it “was not up to the [e]mployees when the government
directed downsizing[,] [e]specially when the one you keep has not been counseled and the senior
person has.” (Id.) LSG states that after Gonsalves was advised that it was appropriate to consider
employee performance, “Pettway was chosen for the reduction because he made the most errors
and was the lowest performing of the dispatchers.” (D.N. 40-1, PageID # 375)
Pettway testified that Gonsalves and Scott informed him on October 14, 2016, that he was
being moved to part-time. (D.N. 40-5, PageID # 446) On October 18, 2016, Pettway met with
Gonsalves again. (Id.) According to Pettway, he told Gonsalves at the meeting that he felt he was
being “discriminated [against].”
(Id.)
Pettway maintains that he was not able to explain
“everything” during the meeting because Gonsalves kept interrupting him, saying, “Ms. Scott says
your job performance is low.” (Id.) Pettway testified that at the end of the meeting, Gonsalves
told him that he should “quit and go fishing.” (Id.) Gonsalves denied this and testified that the
decision to place Pettway on part-time status “had nothing to do with his age.” (D.N. 40-7,
PageID # 578-79) Ultimately, three employees in the Transportation Motor Pool section were
moved to part-time status: Lee Bishop, an African American man; Roger Holman, a white man;
and Pettway. (Id., PageID # 583) Gonsalves testified that he could not recall Bishop’s age but
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that Holman was probably in his forties. (Id.) Gonsalves acknowledged that only men working
under Scott were moved to part-time. (Id.)
LSG maintains that it first received notice of the need to eliminate or reduce positions in
October 2016. (Id.; D.N. 40-7, PageID # 579) Pettway argues, however, that cuts were expected
as early as the summer of 2016 when the company was informed that the “Warriors Transition
Battalion” was closing. (D.N. 41, PageID # 705) In July and August 2016, another LSG
employee—Rosie Ashley—overheard several conversations between Kelly Denson and Donnell
Scott regarding the expected cuts. (D.N. 41-2, PageID # 734) In her declaration, Ashley stated
that Denson “was worried about having her hours cut, or losing her job because downsizing was
always done by seniority” and Denson was “friendly with [Scott],” with the two often chatting
“over personal matters.”3 (Id.) Ashley then stated that in July 2016, she overheard a phone call in
which Denson said “they are closing down WTB soon” and “you need to make sure I have a job,”
followed by “you need to get rid of him.” (Id.) Ashley says that at the time, she assumed Denson
was speaking with Scott “because [Denson] was depending on [Scott] to keep her working full
time.” (Id.) Likewise, Ashley said that she overheard Denson and Scott speaking in the dispatch
office in August 2016. (Id.) According to Ashley’s declaration, Denson said that she “really
needed a job” and told Scott that Scott needed to get rid of Pettway. (Id.) Scott responded that
she was working on it and that the “Old Bastard needs to retire or just quit.” (Id.) Ashley stated
Consistent with the discussion above, the Court will consider Ashley’s declaration using the Sixth
Circuit’s instruction that parties cannot create genuine issues of material fact through affidavits or
declarations that: (1) are “merely conclusory reiterations of the allegations of the complaint and
which are not made on personal knowledge” or (2) “contradict their own depositions.” Tiller v.
84 Lumber Co., 1989 U.S. App. LEXIS 15558, at *10 (6th Cir. Oct. 10, 1989) (internal quotations
and citations omitted). As will be explained in greater detail below, Ashley’s declaration creates
a genuine issue of material fact. But, Ashley was not deposed, and her unrebutted declaration
statements are not inconsistent with any deposition testimony in the record. Moreover, LSG does
not dispute that Ashley’s declaration statements were based on her personal knowledge.
3
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that she then began to notice that Pettway was being targeted. (Id.) Specifically, Ashley stated in
her declaration that she observed Denson gathering up only Pettway’s paperwork in the mornings
to take to Scott’s office. (Id.) Meanwhile, Ashley noted that Denson’s paperwork—which was
left behind—“was full of mistakes[] such as forms not being filled out properly, having the wrong
date, missing information, or not signed.” (Id.)
In her declaration, Ashley said that it was a common occurrence for Scott to refer to
Pettway as an “Old Fart” and “Old Bastard” before he filed his discrimination complaint, and that
it was done so often that “you knew who she was referring to without her saying his name.” (Id.)
According to Ashley’s declaration, Scott “would talk about how she could not stand the Old
Bastard, that she could not stand looking at him, that he did not need to work, [and that he] did not
need the money because he was retired from another job and should just quit and stay home.” (Id.)
Ashley went on to characterize Scott’s attitude toward older workers as believing that they did not
“need to work” and that they could “live on their social security or other retirement.” (Id.) Ashley
also claimed that Scott would “often speak to older workers like they were idiots and not capable
of understanding or remembering her instructions.” (Id.)
Pettway does not deny that he made mistakes. (D.N. 41, PageID # 709) Pettway argues,
however, that despite the fact that LSG employees commonly make paperwork mistakes, only his
mistakes “were recorded and resulted in a write-up and subsequent demotion.” (Id., PageID # 704)
In her declaration, Ashley stated that common employee mistakes included errors in key logs and
improperly completed paperwork. (D.N. 41-2, PageID # 733) Scott testified that she would have
no dispatchers if she wrote up every employee for their mistakes. (D.N. 40-4, PageID # 420)
Ashley confirmed in her declaration that “[m]istakes in paperwork, by any employee, regardless
of their age, are common” but that, to the best of her knowledge, from the time LSG took over the
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contract to the time Scott left LSG, “no one other than [Pettway] was ever written up for not signing
the key log, errors in paperwork, or bus assignment issues.” (D.N. 41-2, PageID # 733) Ashley
went on to say that although she personally observed more errors by Denson than Pettway, she
was not aware of Denson ever receiving an employee counseling report. (Id.) Scott acknowledged
that all the employees made mistakes but maintains that Pettway “ma[de] several more that
involve[d] . . . a security issue.” (D.N. 40-4, PageID # 420) Scott admitted, however, that when
Pettway reported the mistakes of other dispatchers, including Denson, Scott told him to “quit
sending [her] th[at] stuff.” (Id.)
Denson admitted that she has accepted dirty vehicles, failed to note damage to vehicles,
and made other mistakes which she has been allowed to fix. (D.N. 40-3, PageID # 403) Denson
also testified that when she forgets to sign the key log, she is able to correct the error the following
morning. (Id.) Moreover, Denson said that if one dispatcher noticed that another had not signed,
they would inform the other dispatcher and let them fix their own error because “[e]verybody just
kind of worked together” and they “[c]orrected mistakes.” (Id.) Scott stated, however, that if the
government saw that employees were not signing key logs, the company could get in serious
trouble, and that she told Pettway this many times and “made copies of [the key logs] numerous
times where [Pettway] is not signing them.” (D.N. 40-4, PageID # 424) Denson testified that
Pettway has been known to “not sign in the keys[,]” and she agrees that such an error is a security
issue. (D.N. 40-3, PageID # 405) Denson described a situation where a set of keys could not be
located only to later discover that Pettway had left them in the car overnight. (Id.) On one occasion
after Pettway was written up on September 30, however, Denson not only failed to sign the key
log but failed to get the key, and the bus driver accidentally took the key home. (Id.)
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A few weeks after Pettway’s hours were reduced, Pettway sent a demand letter alleging
discrimination. (D.N. 40-1, PageID # 371) According to LSG, this demand letter was the first
notice LSG received that Pettway believed he was being discriminated against.
(Id.,
PageID # 376) LSG claims that Pettway did not make a written or oral complaint to anyone within
LSG. (Id.) Pettway testified that he met with Casey Palmer on October 13, 2016,4 because he
believed that Palmer was part of LSG. (D.N. 40-5, PageID # 448) Pettway says that he called
Ashley to inquire as to the identity of the HR representative, and Ashley responded, “Go see Casey
Palmer.” (Id.) In her declaration, Ashley clarified that she told Pettway to speak with Palmer
because there was a community notice board in the break room “that had posters and information
on it about discrimination,” including a paper listing Palmer “as the next person on post to go to.”
(D.N. 41-2, PageID # 735) LSG states that “Palmer was not and never has been an LSG employee
or manager.” (D.N. 40-1, PageID # 376)
Pettway testified that he told Palmer during their October 13, 2016, meeting that he felt he
was being discriminated against by Scott. (D.N. 40-5, PageID # 448) Pettway says that he also
provided Palmer with examples of Scott’s discriminatory conduct. (D.N. 41-1, PageID # 726-27)
Pettway testified that Palmer promised that he would look into Pettway’s complaints. (D.N. 40-5,
It is unclear whether Pettway met with Palmer in 2015, 2016, or 2018. In Pettway’s deposition,
counsel asked about Pettway’s “October 13, 2015” meeting with Palmer. (D.N. 40-5,
PageID # 448) In his response to LSG’s motion for summary judgment, Pettway writes that he
was demoted “on October 14, 2018, the day after [he] reported discrimination.” (D.N. 41,
PageID # 703) Pettway testified, however, that he was informed of Gonsalves’s decision on
October 14, 2016. (D.N. 40-5, PageID # 446) Likewise, in Pettway’s declaration, he says the
meeting occurred on October 13, 2016 (D.N. 41-1, PageID # 726), and that he was told that he
was being moved to part-time the following day (id., PageID # 727). Moreover, Palmer’s
declaration states that he recalls Pettway coming in to his office on two occasions “[i]n late 2016”
(D.N. 40-10, PageID # 667), and Deitrich’s email stating the need for a reduction in hours was
sent on October 6, 2016 (D.N. 40-9, PageID # 665). Based on the above, the Court finds that an
October 13, 2016, meeting between Palmer and Pettway is consistent with the undisputed facts
and the context provided in the record.
4
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PageID # 453) Pettway stated in his declaration that he “really thought something would happen”
after his meeting with Palmer (D.N. 41-2, PageID # 727) In his declaration, Palmer recalls
Pettway coming to him on two occasions in 2016. (D.N. 40-10, PageID # 667) Palmer noted that
LTS and LSG are separate companies, however, and that as a project manager for LTS, he played
no role in LSG’s human resources matters. (Id.) Palmer said that he “would not, and did not,
tell . . . Pettway that [he] would look into the matter.” (Id.) Gonsalves said that Palmer did not
tell him what Palmer had discussed with Pettway. (D.N. 40-7, PageID # 578)
Pettway received a response to his demand letter from LSG on November 18, 2016.
(D.N. 41-1, PageID # 728) According to Pettway’s declaration, in the two following weeks he
was only scheduled for a total of 22.6 hours, and then for only 35.1 hours the next two weeks. (Id.)
Pettway’s payroll report shows that he was not scheduled to work from December 17, 2016, to
December 30, 2016 and was not returned to at least 20 hours per week until the week beginning
February 11, 2017. (D.N. 41-6, PageID # 782) Pettway states that he also should have received
two hours of holiday pay in July and September of 2016. (D.N. 40-5, PageID # 451) LSG states
that Pettway never complained that he was being treated unfairly or that its holiday pay policy was
discriminatory. (D.N. 40-1, PageID # 377) Pettway admitted that he did not inform anyone at
LSG that he felt he was being treated unfairly in either July or September of 2016. (D.N. 40-5,
PageID # 452)
In August 2017, a full-time dispatcher retired. (D.N. 40-1, PageID # 378) At that time,
Pettway was offered and accepted a full-time position. (Id.) He remains in that position today.
(Id.) Melissa Fisher—a white female employee in her early forties—testified that Scott provided
her with specific errors of Pettway’s the following month and directed her to send an email with a
report of these errors to Scott. (D.N. 41-3, PageID # 741-42) Fisher was also told to copy
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Gonsalves on the email. (Id.) On September 18, 2017, Fisher sent the requested email to Scott.
(D.N. 40-7, PageID # 588) Gonsalves testified that Scott requested this information because they
were noting mistakes and errors but no longer counseling Pettway per the directive of LSG. (Id.)
Fisher testified that the next day, “more mistakes were found, not only on [Pettway] but on other
dispatchers also” but Scott asked her to send an email containing only Pettway’s errors again.
(D.N. 41-3, PageID # 741) According to Fisher, Scott told her that “[i]f other dispatchers make
mistakes, [Fisher could] call them into [her] office and talk to them about their errors.” (Id.)
Fisher stated that she was worried about Scott’s request but was afraid of retaliation, saying
that although she felt the need to say something, she was worried “[she] would reap the wrath [of
Scott].” (Id., PageID # 742) Fisher “question[ed] why only Mr. Pettway’s mistakes were being
submitted and not the other ones . . . and asked [Gonsalves’s] direction on how or what [she] could
do to comply with what [Scott] asked [her] to do without making it look like [she] was attacking
[Pettway].” (Id.) Fisher sent Gonsalves an email, asking: “Why am I being guided by [Scott] to
create the emails about Mr. Pettway, so all she has to do is forward them? It looks like I’m only
attacking Mr. Pettway when she instructs me to only send his errors instead of including all the
errors that are made by all the dispatchers.” (D.N. 41-5, PageID # 778) According to Gonsalves,
Fisher did not tell him that she thought Pettway was being singled out for write-ups during their
meeting. (D.N. 40-7, PageID # 586) Instead, Gonsalves testified that Fisher told him that she was
concerned about processes and procedures not being followed—such as paperwork not being
properly filled out and keys not being logged—and that it was Pettway in particular who was
making such errors. (Id.) Gonsalves said that Fisher told him there were “notes of different
deficiencies” but that “a number of the deficiencies or the majority of them came from Mr.
Pettway.” (Id., PageID # 587)
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According to LSG, Pettway’s job title and pay grade have remained the same throughout
his employment, and he has never applied for a promotion or requested a different position. (Id.,
PageID # 378) In his declaration, Pettway claims that he was not given the opportunity to apply
for a promotion because the position was not posted. (D.N. 41-1, PageID # 724) Instead, Scott
promoted Fisher to lead dispatcher in September 2015. (Id.) As to Pettway’s other allegations,
LSG states that although Pettway “makes more errors than other dispatchers, he has not received
any formal discipline.” (D.N. 40-1, PageID # 378) LSG says that this is in order to ensure that
Pettway was “treated fairly in the face of his allegations against the onsite management team.”
(D.N. 40-1, PageID # 378) LSG has directed that all discipline of any nature against Pettway must
come through its corporate office and that—upon review of performance deficiencies—“all
corrections be handled with only verbal counseling.” (Id.)
Pettway filed this action against LSG in Hardin County Circuit Court, alleging that LSG
discriminated against him on the basis of age, race, sex, and perceived disability. (D.N. 1-1,
PageID # 17-21) Pettway also asserted claims of retaliation, outrageous conduct, and negligent
supervision. (Id., PageID # 21-23) At that time, Pettway also filed a complaint with the Equal
Employment Opportunity Commission. (See D.N. 18-1, PageID # 154) Thereafter, LSG removed
the action to this Court on the basis of diversity jurisdiction. (D.N. 1) Following removal, Pettway
amended his complaint to add Akima, Akima Support Operations, and Wolverine Services as
defendants (D.N. 20); his claims against these defendants were later dismissed (D.N. 36). Pettway
also amended his complaint in order to bring new allegations that LSG retaliated against him for
filing his complaint in this matter. (D.N. 20, PageID # 202) LSG now seeks summary judgment
as to all of Pettway’s claims against it. (D.N. 40)
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II.
Summary judgment is required when the moving party shows, using evidence in the record,
“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); see 56(c)(1). For purposes of summary judgment, the
Court must view the evidence in the light most favorable to the nonmoving party. Loyd v. Saint
Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)). However, the Court “need consider only the cited materials.” Fed. R.
Civ. P. 56(c)(3); see Shreve v. Franklin Cty., Ohio, 743 F.3d 126, 136 (6th Cir. 2014). If the
nonmoving party “fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact as required by Rule 56(c),” the fact may be treated as undisputed. Fed. R.
Civ. P. 56(e)(2)-(3). To survive a motion for summary judgment, the nonmoving party must
establish a genuine issue of material fact with respect to each element of each of his claims.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (noting that “a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial”).
In his amended complaint, Pettway asserts claims of age, race, sex, and disability
discrimination under the KCRA, Title VII, the Americans with Disabilities Act, and the Age
Discrimination in Employment Act (Counts I-VIII). (D.N. 20, PageID # 212-19) Pettway also
alleges that LSG retaliated against him in violation of the KCRA and Title VII (Counts IX and X).
(Id., PageID # 219-21) Finally, Pettway brings common-law claims against LSG for outrageous
conduct and negligent hiring and supervision (Counts XI and XII). (Id., PageID # 223-24)
13
A.
Federal Enclave Doctrine
As a preliminary matter, the Court notes that Fort Knox became a federal enclave in 1942.
Ky. Rev. Stat. § 3.030; see also Watkins v. Safety-Kleen Systems, Inc., No. CIV A 5:08-CV224KSF, 2008 WL 4073554, at *6 (E.D. Ky. Aug. 29, 2008); In re Air Crash Disaster at Gander,
Newfoundland on Dec. 12, 1985, 660 F. Supp. 1202, 1207 n.4 (W.D. Ky. 1987). Kentucky did
not reserve legislative power on Fort Knox. Ky. Rev. Stat. § 3.030; see Watkins, 2008 WL
4073554, at *6. “Since a State may not legislate with respect to a federal enclave unless it reserved
the right to do so when it gave its consent to the purchase by the United States, only state laws
existing at the time of the acquisition remain[] enforceable, not subsequent laws.” Paul v. United
States, 371 U.S. 245, 268 (1963) (citing James Stewart & Co. v. Sadrakula, 309 U.S. 94 (1940);
Arlington Hotel Co. v. Fant, 278 U.S. 439 (1929)).
The Kentucky Civil Rights Act was enacted in 1966, and Kentucky first recognized the tort
of outrageous conduct in 1984. Ky. Rev. Stat. § 344.020; Craft v. Rice, 671 S.W.2d 247, 250-51
(Ky. 1984); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385, 389 (Ky. Ct. App.
1996). Therefore, if Pettway’s alleged injuries occurred on Fort Knox, his KCRA and outrage
claims against LSG are barred by the Federal Enclave Doctrine. Id. Pettway does not dispute Fort
Knox’s status as a federal enclave or the inapplicability of the KCRA and tort of outrageous
conduct to injuries suffered on Fort Knox. (See D.N. 41) Nor does he appear to contend that his
injuries occurred anywhere other than Fort Knox. (See id.) Pettway’s KCRA and outrageousconduct claims are therefore barred by the Federal Enclave Doctrine, and the Court will only
analyze Pettway’s discrimination claims under federal law.
14
B.
Discrimination
Pettway alleges that LSG discriminated against him on the basis of age, race, sex, and
perceived disability in violation of Title VII, the ADA, and the ADEA. (D.N. 20, PageID # 21219) In his amended complaint, Pettway stated that LSG discriminated against him “on account of
[his] ] race and color,” that Pettway’s age was the but-for cause or a motivating factor in the adverse
employment actions, and that LSG “willfully and intentionally discriminated against [Pettway]
based on his age.” (Id., PageID # 213-217) At the start of this litigation, Pettway was a 79-yearold African American male who had been a dispatcher at TMP since June of 2001. (D.N. 41,
PageID # 719) Pettway argues that “[t]here are two substantially younger white female dispatchers
with less seniority that were kept on as full-time dispatchers” while he was reduced to part-time.
(Id.) Pettway also argues that although he had ten years greater seniority than a white female
employee, she was promoted to Lead Dispatcher while Pettway was not given the opportunity to
apply. (Id., PageID # 710-11) Pettway states that he is the only African American dispatcher and
that although he “meets the age, race, and sex requirements, [and] is qualified for the position []
much younger white female employees have been treated more favorably.” (Id., PageID # 711)
Pettway may prove discrimination by introducing either direct evidence of discrimination or
circumstantial evidence supporting an inference of discrimination. Johnson v. Kroger Co., 319
F.3d 858, 864-65 (6th Cir. 2003).
1. Age Discrimination
i. Direct Evidence
Direct evidence “is evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer’s actions.” Wexler v. White’s Fine
Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (internal quotations omitted) (quoting Jacklyn
15
v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 936 (6th Cir. 1999)) It proves
the existence of a fact without any inferences. Burus v. Wellpoint Cos., No. 5:08-154-KKC, 2010
U.S. Dist. LEXIS 28798, at *11 (E.D. Ky. Mar. 25, 2010). “Where a plaintiff presents direct
evidence of discriminatory intent in connection with the challenged employment action, ‘the
burden of both production and persuasion shifts to the employer to prove that it would have
terminated the employee even if it had not been motivated by impermissible discrimination.’”
Johnson, 319 F.3d at 865 (quoting Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2003)).
“[D]irect evidence [of discrimination] does not include stray remarks in the workplace,
particularly those made by non-decisionmakers or statements made by decisionmakers unrelated
to the decisional process itself.” Steeg v. Vilsack, No. 5:13-CV-86-TBR, 2016 U.S. Dist. LEXIS
149488, at *3 (W.D. Ky. Oct. 28, 2016) (quoting Ayala-Gerena v. Bristol Myers-Squibb Co., 95
F.3d 86, 96 (1st Cir. 1996)). “Stray remarks are ‘general, vague, or ambiguous comments [and]
do not constitute direct evidence of discrimination because such remarks require a factfinder to
draw further inferences to support a finding of discriminatory animus.’” Id. at *4 (quoting Sharp
v. Aker Plant Servs. Grp., Inc., 726 F.3d 789, 798 (6th Cir. 2013)). To determine if statements are
“relevant” as direct evidence of discrimination or merely “stray remarks,” courts generally
consider “(1) whether the remarks were made by the decisionmaker or by an agent uninvolved in
the challenged decision; (2) whether the remarks were isolated or part of a pattern of biased
comments; (3) whether the remarks were made close in time to the challenged decision; and (4)
whether the remarks were ambiguous or clearly reflective of discriminatory bias.” Worthy v. Mich.
Bell. Tel. Co., 472 F. App’x 342, 347 (6th Cir. 2012) (citing Cooley v. Carmike Cinemas, Inc., 24
F.3d 1325, 1330 (6th Cir. 1994); Dep’t of Civil Rights ex rel. Burnside v. Fashion Bug of Detroit,
16
702 N.W.2d 154, 157 (Mich. 2005)). Based on the cited materials in the record, Court finds that
Pettway has presented direct evidence of age discrimination.
In her declaration, Ashley stated that she overheard Denson tell Scott in August 2016 that
she needed to get rid of Pettway, and Scott responded that she was “working on it” and that the
“Old Bastard needs to retire or just quit.” (D.N. 41-2, PageID # 734) The statement was made
close in time to the challenged decision, as Pettway’s first written warning—which LSG cited as
part of the basis for its decision to reduce Pettway to part-time—occurred the following month on
September 30, 2016. (D.N. 40-6, PageID # 568-69) Gonsalves then informed Pettway of his
decision to reduce Pettway to part-time two weeks later on October 14, 2016. (D.N. 40-5,
PageID # 446) Further, the comment—clearly reflective of discriminatory age bias—was part of
a pattern of biased comments reportedly made by Scott. Ashley went on in her declaration to say
that Scott called Pettway “Old Fart” or “Old Bastard” so often that “you knew who she was
referring to without her saying his name.” (D.N. 41-2, PageID # 734) According to Ashley, Scott
“would talk about how she could not stand the Old Bastard,” and that he “did not need the money
because he was retired from another job and should jut quit and stay home.” (Id.) Ashley
explained that Scott had a history of treating older workers “differently” and that she “clearly
disliked older males,” frequently referring to older employees as “Old Farts and Old Bastards,”
especially when speaking to “younger white female employees who were closer to [Scott] in age.”
(Id.) Ashley characterized Scott’s attitude toward older workers as believing they did not need to
work, and instead could live on their social security or other retirement. (Id.) In her declaration,
Ashley also recalled Scott stating that she wanted to get rid of Pettway and two other men over 65
years of age, calling them “old bastards and saying you cannot depend on them,” and commenting
on more than one occasion that “they should all just stay home or retire.” (Id.) Finally, Ashley
17
stated that Scott would often speak to older workers “like they were idiots and not capable of
understanding or remembering her instructions.” (Id.) Viewed in the light most favorable to
Pettway, this evidence clearly indicates a pattern of biased comments regarding older employees
at LSG.
A. Cat’s Paw
As to the remaining prong, LSG maintains that Gonsalves—not Scott—was the decisionmaker (D.N. 40-1, PageID # 375), and Gonsalves testified that he did not discuss moving Pettway
to part-time with Scott until after his decision was made (D.N. 40-7, PageID # 579). When a
supervisor with alleged discriminatory animus is not the decision-maker, a plaintiff can still
demonstrate discrimination with direct evidence by establishing a “causal nexus’ between the
ultimate decision-maker’s decision to [demote] the plaintiff and the supervisor’s discriminatory
animus.” Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 350 (6th Cir. 2012) (quoting Madden
v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 677 (6th Cir. 2008)). One way to establish
this nexus is by presenting evidence of “cat’s paw” liability. Id. at 351. To prevail on the cat’s
paw theory of liability, a plaintiff must show that “[b]y relying on th[e] discriminatory information
flow, the ultimate decisionmakers acted as the conduit of [the supervisor’s] prejudice—h[er] cat’s
paw.” Id. at 350. “If a supervisor performs an act motivated by [discriminatory] animus that is
intended by the supervisor to cause an adverse employment action, and if that act is a proximate
cause of the ultimate employment action, then the employer is liable . . . .” Staub v. Proctor Hosp.,
562 U.S. 411, 422 (2011). Therefore, under Staub, Scott’s discriminatory animus against older
workers can be imputed to Gonsalves if Pettway can show that (1) Scott “intended . . . to cause an
adverse employment action” and (2) Scott’s discriminatory action “is a proximate cause of the
ultimate employment action.” Id.
18
The intent element is easily satisfied, as Pettway has established a genuine issue of material
fact exists as to whether Scott intended that Pettway be demoted or terminated. Pettway testified
that as early as 2013, he overheard Scott tell Denson that she was changing Pettway’s schedule in
order to see less of him. (D.N. 40-5, PageID # 466) Between February and September of 2013,
Pettway went from working the 4:30 a.m. to noon shift to working the 3:30 p.m. to midnight shift.
(Id., PageID # 467) Further, Ashley’s declaration stated that she overheard two conversations
between Denson and Scott about needing to “get rid of” Pettway. (D.N. 41-2, PageID # 734)
Based on the evidence above, a reasonable jury could find that Scott intended for Pettway to suffer
an adverse employment action and thus has “the scienter required to be liable.” Staub, 562 U.S.
at 419.
The second prong of the Staub rule requires Pettway to show the existence of a genuine
issue of material fact as to whether Scott’s actions were a proximate cause of Pettway’s move to
part-time. Id. at 420 (explaining that cat’s-paw liability attaches when the biased intermediate
employee’s actions are “a causal factor of the ultimate employment action”). Scott’s actions need
not be the sole cause of the adverse employment action; “[t]he decisionmaker’s exercise of
judgment is also a proximate cause of the employment decision, but it is common for injuries to
have multiple proximate causes.” Id. at 419 (emphasis in original) (citations omitted). Sixth
Circuit precedent merely requires “proof of a ‘causal nexus’ between the discrimination and the
adverse action, or that the intermediate employee ‘influence[] the unbiased decision-maker’ to take
an adverse action.” Chattman, 686 F.3d at 352-53 (internal citations omitted). In Madden, the
court held that the biased supervisor’s “discrimination in what information [she] presented to
senior managers” was sufficient evidence from which a reasonable factfinder could find causation.
549 F.3d at 677. Here, Pettway has presented similar evidence demonstrating that although Scott
19
knew that other, younger employees made comparable errors, she chose to report only Pettway’s
errors to upper management.
When Gonsalves sought guidance from upper management as to whether the decision to
move an employee to part-time status should be made “based on seniority and/or performance,”
Navarro responded that it was Gonsalves’s choice and that it was not up to the employees,
“[e]specially when the one you keep has not been counseled and the senior person has.” (D.N. 409, PageID # 662)
After Gonsalves was advised that it was proper to consider employee
performance, “Pettway was chosen for the reduction because he made the most errors and was the
lowest performing of the dispatchers.” (D.N. 40-1, PageID # 375) Thus, viewed in the light most
favorable to Pettway, Scott’s alleged decision to present only Pettway’s errors and performance
issues to Gonsalves is sufficient evidence from which a reasonable factfinder could find causation.
Madden, 549 F.3d at 677. Because Pettway has presented evidence of Scott’s discriminatory
animus and offered sufficient proof under the Staub rule to create genuine issues of fact as to intent
and causation, Scott’s discriminatory animus will be imputed to Gonsalves. See Chattman, 686
F.3d at 353. Accordingly, Scott’s comment that she was working on getting rid of Pettway and
that the “Old Bastard needs to just retire or quit” is relevant direct evidence of age discrimination.
Worthy, 472 F. App’x at 347.
B. LSG’s Burden
When proving a claim through the use of direct evidence, a plaintiff does not have to
proceed under the McDonnell Douglas burden-shifting framework that applies to circumstantial
evidence cases.” DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004). Instead, “the burden shifts
to the employer to prove by a preponderance of the evidence that it would have made the same
decision absent the impermissible motive.” Blair v. Henry Filters, Inc., 505 F.3d 517, 523 (6th
20
Cir. 2007) (citations omitted). As explained above, LSG maintains that Pettway was moved to
part-time status because he made a number of errors and was the “lowest performing” dispatcher.
(D.N. 40-1, PageID # 375) More specifically, LSG states that during Pettway’s tenure, he
“repeatedly f[ell] short of [the] employer’s expectations” by “sleeping on the job,” “tak[ing] an
hour to complete routine tasks that other dispatchers completed in ten minutes,” “disregard[ing]
the daily scheduled bus assignments,” and regularly failing to correctly complete important forms.
(Id., PageID # 373) As explained below, however, LSG has failed to show that it would have
made the same decision to move Pettway to part-time absent Scott’s selective reporting.
As explained above, there is evidence that Pettway was singled out for discipline. Pettway
was written up for failing to follow a bus schedule although Wheeler—who failed to leave the
schedule for Pettway—was not disciplined. (D.N. # 41-1, PageID # 723-24) Ashley observed
Denson and Scott singling out Pettway’s errors for review, but noted that Denson did not receive
any counseling despite making more paperwork errors than Pettway. (D.N. 41-2, PageID # 733)
Scott admitted that employee errors are so common at LSG that she would have no dispatchers if
she wrote up every employee for their mistakes. (D.N. 40-4, PageID # 420) Ashley confirmed
that paperwork mistakes were common but that “no one other than [Pettway] was ever written up
for not signing the key log, errors in paperwork, or bus assignment issues.”
(D.N. 41-2,
PageID # 733-34) Scott acknowledged that she told Pettway to stop sending her reports on the
mistakes of other dispatchers. (D.N. 40-4, PageID # 420) Moreover, the Court has already found
evidence that Scott discriminated against Pettway in only reporting his errors and performance
issues to upper management. Thus, the majority of the reasons cited by LSG for its decision are
potentially tainted by the discriminatory bias of Scott.
21
Finally, although LSG states that Denson reported Pettway “sleeping on the job” (D.N. 401, PageID # 373; D.N. 41, PageID # 708), Pettway denies having fallen asleep at work and
maintains that Denson would not have been in a position to see him sleeping because “[Denson]
would either be gone when [Pettway] arrived or leave as soon as [he] came in.” (D.N. 41-1,
PageID # 728) In sum, LSG has not shown by a preponderance of the evidence that it would have
made the same decision to move Pettway to part-time status in the absence of any discriminatory
animus. See Blair, 505 F.3d at 523. The Court therefore finds that LSG is not entitled to summary
judgment as to Pettway’s age discrimination claim.
ii. Circumstantial Evidence
Even without direct evidence of discrimination, Pettway has presented sufficient
circumstantial evidence in order to survive summary judgment. Circumstantial evidence “is proof
that does not on its face establish discriminatory animus, but does allow a factfinder to draw a
reasonable inference that discrimination occurred.” Provenzano v. LCI Holdings, Inc., 663 F.3d
806, 811 (6th Cir. 2011) (quoting Wexler, 317 F.3d at 570). Under the McDonnell Douglas
burden-shifting test, Pettway must first establish a prima facie case of discrimination; LSG must
then articulate a legitimate nondiscriminatory reason for his termination; and finally, Pettway must
demonstrate that the proffered reason is pretextual. White v. Duke Energy Ky., Inc., 603 F. App’x
442, 446 (6th Cir. 2015) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
To establish a prima facie case of age discrimination under the ADEA, a plaintiff must
come forward with evidence that: (1) he was at least 40 years old at the time of the alleged
discrimination; (2) he was subjected to an adverse employment action; (3) he was otherwise
qualified for the position; and (4) he was replaced by a younger individual. See Coomer v.
Bethesda Hosp., Inc., 370 F.3d 499, 510-11 (6th Cir. 2004) (citing Burzynski v. Cohen, 264 F.3d
22
611, 622 (6th Cir. 2001); Block-Victor v. CITG Promotions, 665 F. Supp. 2d 797, 806 (E.D. Mich.
2009) (citing Skalka v. Fernald Envir. Restoration Mtg. Corp., 178 F.3d 414, 420 (6th Cir. 1999)).
If a plaintiff is terminated as part of a work force reduction, the Sixth Circuit “has modified the
fourth element to require the plaintiff to provide ‘additional direct, circumstantial, or statistical
evidence tending to indicate that the employer singled out the plaintiff for discharge for
impermissible reasons.’” Johnson v. Franklin Farmers Coop., 378 F. App’x 505, 508 (6th Cir.
2010) (quoting Geiger v. Tower Auto., 579 F.3d 614, 623 (6th Cir. 2009)). Here, the parties agree
that Pettway is a member of a protected class but dispute the remaining three elements.
A. Adverse Employment Action
To prevent lawsuits based upon “trivial workplace dissatisfactions,” the Sixth Circuit
requires that a plaintiff prove the existence of an “adverse employment action” to support a Title
VII claim. White v. Burlington Northern & Sana Fe Ry., 364 F.3d 789, 795 (6th Cir. 2004) (citing
Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999)). “An adverse employment action is a
materially adverse change in the terms or conditions of employment.” White v. Coventry Health
& Life Ins. Co., No. 3:14-CV-645-CRS, 2015 U.S. Dist. LEXIS 147910, at *19 (W.D. Ky. Nov. 2,
2015) (quoting Kuhn v. Washtenaw Cty., 709 F.3d 612, 625 (6th Cir. 2013)). Examples include:
“a termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material responsibilities, or
other indices that might be unique to a particular situation.” Kuhn, 709 F.3d at 625. LSG admits
that Pettway’s move to part-time for more than a year qualifies but argues that Pettway has not
suffered any other materially adverse employment action.5 (D.N. 40-1, PageID # 386) Therefore,
LSG contests Pettway’s characterization of his lack of hours during the holidays and scheduling
issues as adverse employment actions. (D.N. 40-1, PageID # 386) But, Pettway does not mention
holiday pay or scheduling when arguing his prima facie case for his substantive discrimination
5
23
it is undisputed that Pettway suffered an adverse employment action when he was moved from
full-time to part-time.
B. Qualified for Position
Under the third prong of the prima facie case, “a court should focus on a plaintiff’s
objective qualifications to determine whether he or she is qualified for the relevant job.” Wexler,
317 F.3d at 575 (citing Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 1998) (en
banc) (noting that “courts traditionally treat explanations that rely heavily on subjective
considerations with caution” and that “an employer’s asserted strong reliance on subjective
feelings about the candidates may mask discrimination”). “The prima facie burden of showing
that a plaintiff is qualified can therefore be met by presenting credible evidence that his or her
qualifications are at least equivalent to the minimum objective criteria required for employment in
the relevant field.” Id. at 575-76. “Although the specific qualifications will vary depending on
the job in question, the inquiry should focus on criteria such as the plaintiff’s education, experience
in the relevant industry[,] and demonstrated possession of the required skills.” Id. at 576. Pettway
“must [also] prove that he was performing his job ‘at a level which met his employer’s legitimate
expectations.’” Ang v. Procter & Gamble Co., 932 F.2d 540, 548 (6th Cir. 1991) (quoting Huhn
v. Koehrig, 718 F.3d 239, 243 (7th Cir. 1983)). A plaintiff “does not raise a material issue of fact
on the question of the quality of his work merely by challenging the judgment of his supervisors.”
Id. at 548-49 (quoting McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir. 1990)).
The Sixth Circuit has cautioned that courts must not use the “qualified” element of the
prima facie case to heighten the plaintiff’s initial burden, however. To ensure that the first two
claims. (See D.N. 41, PageID # 710-12, 716-17) Accordingly, the Court need not address LSG’s
arguments as to the holiday pay or scheduling at this juncture.
24
stages of the McDonnell Douglas inquiry remain analytically distinct, Sixth Circuit precedent
requires “that the ‘qualified’ prong of the prima facie case be evaluated in light of the plaintiff’s
employment record ‘prior to the onset of the events that the employer cites as its reason’ for its
decision.” Nizami v. Pfizer Inc., 107 F. Supp. 2d 791, 801 (E.D. Mich. 2000) (citing Cline v.
Catholic Diocese, 206 F.3d 651, 662-63 (6th Cir. 1999)) (emphasis in original). Thus, “when
assessing whether a plaintiff has met h[is] employer’s legitimate expectations at the prima facie
stage of a termination case, a court must examine [the] plaintiff’s evidence independent of the
nondiscriminatory reason ‘produced’ by the defense as its reason for terminating plaintiff.” Cline,
206 F.3d at 660-61.
Pettway’s education level is unclear. Pettway has the relevant experience for his position:
he has worked as a dispatcher at the TMP at Fort Knox since 2001. (D.N. 41-1, PageID # 723)
As to Pettway’s demonstrated possession of the relevant skills and whether he met the expectations
of his employer, LSG maintains that Pettway “made the most errors and was the lowest performing
of the dispatchers.” (D.N. 40-1, PageID # 371) Specifically, LSG states that Pettway was the only
dispatcher to have a written warning over performance and that Pettway “acknowledges other areas
where his performance fell below his colleagues,” such as being slower than other dispatchers on
certain tasks and making “lots of mistakes” under time pressure. (Id., PageID # 395) But these
are part of LSG’s proffered reason for moving Pettway to part-time, in addition to a mandated
reduction in force. (D.N. 40-1, PageID # 394) Under Cline, the Court must assess whether Pettway
met LSG’s reasonable expectations independent of the company’s justifications for moving
Pettway to part-time status. 206 F.3d at 660-61. Apart from the proffered nondiscriminatory
reasons for its decision, however, LSG offers little to show that Pettway was not meeting
expectations. LSG merely makes a generalized assertion that “it is at least arguable that Pettway
25
was not qualified for the position of dispatcher as he was failing to meet LSG’s legitimate
expectations related to his performance.” (D.N. 40-1, PageID # 390) This statement is insufficient
on its own, and LSG has provided no other evidence to demonstrate how Pettway failed to meet
the company’s expectations separate from the reasons it provided for moving him to part-time
status. Accordingly, Pettway has satisfied this element of his prima facie case.
C. Replacement
To satisfy the fourth prong in his claim for age discrimination under the ADEA, Pettway
must show that he was replaced by a “substantially” younger individual. Meads v. LexingtonFayette Urban Cty. Gov’t, No. 15-5310, 2016 U.S. App. LEXIS 23776, at *14 (6th Cir. Jan. 20,
2016) (citing Coomer v. Bethesda Hosp., Inc., 370 F.3d 499, 510-11 (6th Cir. 2004)). LSG argues
that “[w]here, as here, the adverse employment action takes place in the context of a reorganization
or reduction in force in which the employee’s position is eliminated and not refilled,” a modified
prima facie case applies because “the employee is not actually replaced.”
(D.N. 40-1,
PageID # 389-90) LSG further contends that the “legal princip[les] and considerations underlying
the heightened standard apply equally whether an employee’s position is entirely eliminated or his
position is merely cut to part-time” and that the key distinction “is whether the employee was
replaced or the job (or hours) truly went away.” (D.N. 42, PageID # 791) Pettway does not dispute
the fact that there was a government-mandated reduction in hours, nor does he present evidence
that his responsibilities were not simply redistributed among other existing employees. Instead,
Pettway contends that LSG’s argument “fails because for the [reduction-in-force] provision to
apply, the employee must have been fired and had his position eliminated.”
(D.N. 41,
PageID # 711) Pettway misconstrues the definition of a workforce reduction or reorganization.
26
A workforce reduction or reorganization “occurs when business considerations cause an
employer to eliminate one or more positions within the company.” Barnes v. GenCorp., 896 F.3d
1457, 1465 (6th Cir. 1989). The workforce-reduction framework applies when “another employee
is assigned to perform the plaintiff’s duties in addition to other duties, or when the work is
redistributed among other existing employees already performing related work.” Id. (citing
Sahadi, 636 F.2d at 1117). Therefore, contrary to Pettway’s assertion, an employee need not have
been fired and had his position wholly eliminated for the workforce-reduction provision to apply.
Here, the record shows that LSG was initially asked to completely eliminate multiple full-time
positions as part of a government mandate. (D.N. 40-1, PageID # 374) According to LSG, while
it was able to convince the interested parties that layoffs were not required, a bus driver, a truck
driver, and a dispatcher position were reduced from full to part-time. (Id., PageID # 375) LSG
states that as part of the government mandate, “the dispatch office operational hours and staff were
reduced,” with the reduction primarily affecting evening hours. (D.N. 42, PageID # 791) LSG
maintains that no one was hired to replace Pettway (id.), and Pettway provides no evidence to
show that an employee has been hired or entirely reassigned to perform his duties. Thus, this is a
workforce-reduction situation, and the modified prima facie standard applies.
Cushman-
Lagerstrom, 72 F. App’x at 330.
1. Modified Prima Facie Standard
In order to establish a prima facie case of discrimination in a workforce reduction situation,
the usual fourth element of the prima facie case is modified and the plaintiff must instead “prove
additional direct, circumstantial, or statistical evidence tending to indicate that the employer
singled out the plaintiff for discharge for impermissible reasons.” Geiger v. Tower Auto., 579 F.3d
614, 624 (6th Cir. 2009) (internal quotations and citations omitted). “The guiding principle [in
27
workforce reduction cases] is that the evidence must be sufficiently probative to allow a factfinder
to believe that the employer intentionally discriminated against the plaintiff . . . .” Id. (quoting
Gragg v. Somerset Tech. Coll., 373 F.3d 763, 767-68 (6th Cir. 2004)). As explained above,
Pettway does not dispute that LSG was required to reduce hours as part of a government mandate.
Pettway must therefore present additional evidence that LSG impermissibly singled him out for
demotion.
In support of his age-discrimination claim, Pettway provides the following: Denson
expressed concern to Scott regarding the expected cuts “because downsizing was always done by
seniority” (D.N. 41-2, PageID # 734), but Pettway was the dispatcher selected for part-time status,
despite his seniority (D.N. 40-5, PageID # 446); Wheeler was given authority to assign the buses
despite having no dispatch experience (D.N. 40-5, PageID # 453); Scott told Pettway that he had
a “tendency to forget” and was “very forgetful,” which Pettway interpreted as Scott saying, “You
are too old and you forget” (id., PageID # 455); Gonsalves told Pettway that he should “quit and
go fishing” (id., PageID # 443); Scott and Denson’s conversations about getting rid of him and
Scott’s statement that the “Old Bastard needs to retire or just quit” (D.N. 41-2, PageID # 734);
Ashley’s statements about Scott’s attitude toward and treatment of older employees and the fact
that Scott frequently referred to older males as “Old Farts and Old Bastards” (id.); Ashley’s
recollection that Scott said she wanted to get rid of Pettway and two other male employees, calling
them “old bastards” and saying on more than one occasion that “they should all just stay home or
retire” (id.); Ashley’s statement that Scott “would talk about how she could not stand the Old
Bastard” when discussing Pettway, and that Scott would also say “that she could not stand looking
at him, that he did not need to work, [and that he] did not need the money because he was retired
from another job and should just quit and stay home” (id.); and the fact that although Denson—a
28
younger female employee—admitted to committing comparable errors, none of her errors have
been reported to upper management (D.N. 40-3, PageID # 403). This additional circumstantial
evidence of age discrimination satisfies Pettway’s heightened burden in a workforce reduction
case. Therefore, Pettway has established his prima facie case of age discrimination.
2. Race Discrimination
To establish a prima facie case of race discrimination, Pettway must “present evidence that:
(1) he was a member of a protected class”; (2) “he suffered an adverse employment action”; (3)
“he was professionally qualified for the position he held at the time of the action”; and (4) “he was
either replaced by a person from outside the protected class or was treated differently from
similarly situated employees outside the protected class.” Duke Energy, 603 F. App’x at 446
(citing Clayton v. Meijer, Inc., 281 F.3d 605, 607, 610 (6th Cir. 2002)). As explained above,
Pettway has shown that he suffered an adverse employment action and was qualified for his
position. Therefore, the Court need only determine whether he was replaced by a person outside
the protected class or treated differently from similarly-situated employees. For the reasons
explained below, the Court finds that Pettway has shown that he was treated differently from
similarly-situated employees outside his protected class.
A. Similarly Situated
“[I]ndividual disparate treatment . . . cases generally require indirect evidence from which
an inference of discriminatory motive may be drawn, namely, comparative evidence demonstrating
that the treatment of the plaintiff differs from that accorded to otherwise ‘similarly situated’
individuals who are not within the plaintiff’s protected group.” Talley v. Bravo Pitino Restaurant,
61 F.3d 1241, 1247 (6th Cir. 1995) (quoting Shah v. General Electric Co., 816 F.2d 264, 268 (6th
Cir. 1987) (citations omitted)). To qualify as “similarly situated,” the employees identified by a
29
plaintiff must be similar to the plaintiff “in all of the relevant aspects.” Seay v. TVA, 339 F.3d 454,
480 (6th Cir. 2003) (internal quotations and citation omitted). “For two employees to be similarly
situated in the disciplinary context, it is generally relevant if the individuals with whom the plaintiff
seeks to compare his/her treatment have dealt with the same supervisor, have been subject to the
same standards[,] and have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them for it.”
Grose v. Bank One, N.A., No. 06-44-JBC, 2008 U.S. Dist. LEXIS 16654, at *9-*10 (E.D. Ky. Mar.
3, 2008) (citing Ercegovich v. Goodyear Tire & Rubber Co., 54 F.3d 344, 352 (6th Cir. 1998))
(internal quotations omitted). “It is the discrimination plaintiff’s burden to establish that the
employee’s acts were of comparable seriousness to his or her own infractions.” Warfield v.
Lebanon Corr. Inst., 181 F.3d 723, 730 (6th Cir. 1999) (internal quotation marks omitted).
Therefore, in order to prevail on his race-discrimination claim, Pettway must provide evidence that
a similarly situated white employee was treated more favorably. As explained below, the Court
finds that there is a genuine issue of material fact as to whether Denson—a similarly situated white
dispatcher—was treated more favorably than Pettway.
As evidence of favorable treatment for white employees, Pettway points to two situations
where other dispatchers made errors similar to his but did not receive discipline. First, Pettway’s
declaration stated that a white male dispatcher changed the bus schedule to give a driver a bus
without air conditioning but did not receive a warning or a write-up. (D.N. 41-1, PageID # 732)
Pettway provided no evidence to show that the white male dispatcher had also made unauthorized
changes on more than one occasion, however. Moreover, Pettway admitted that the first time he
made unauthorized changes to the schedule, Scott simply explained to him the need to rotate buses
“but did not warn [Pettway] or tell him he was going to be written up.” (D.N. 41, PageID # 706)
30
Thus, the evidence does not establish that Pettway and the white male dispatcher were “similarly
situated.”
Pettway’s strongest comparator is another white dispatcher—Denson. Although it is not
explicitly stated in the record, Scott appears to be Denson’s supervisor as she is the fleet supervisor
and Denson is a dispatcher, like Pettway. (D.N. 40-4, PageID # 415) Unlike the white male
dispatcher who made an unauthorized bus-schedule change, there is evidence in the record that
Denson engaged in the same conduct as Pettway without differentiating or mitigating
circumstances which would distinguish her conduct or Scott’s treatment of her for it. See Grose,
2008 U.S. Dist. LEXIS 16654 at *9-*10. First, after Pettway was written up for failing to properly
sign in keys, Denson not only failed to sign the key log but also failed to retrieve the key, allowing
the bus driver to accidentally take the key home. (D.N. 40-3, PageID # 403) Scott herself noted
that failure to sign in keys is considered a security issue, a serious infraction, and can result in a
“cure notice” under LSG’s contract. (D.N. 40-4, PageID # 424) Further, in her deposition, Denson
responded affirmatively when asked if she has ever made a mistake. (D.N. 40-3, PageID # 420)
Ashley stated in her declaration that she personally observed more errors by Denson than Pettway.
(D.N. 41-2, PageID # 733) Denson admitted that when she forgets to sign the key log, she simply
signs it the next morning, and that employees regularly “correct[ed] the mistakes in the key logs.”
(D.N. 40-3, PageID # 403) Denson admitted, however, that a failure to sign in keys is a security
issue. (Id., PageID # 405) Denson stated that to the best of her knowledge, however, none of her
errors have been reported to corporate. (Id., PageID # 403) Scott testified that if the government
saw that employees were not signing key logs, the company could get in “serious trouble.”
(D.N. 40-4, PageID # 424) Nevertheless, Scott admitted that she ignored Pettway’s attempts to
31
report Denson’s mistakes while still making copies of key logs containing Pettway’s errors. (Id.,
PageID # 420, 424).
Based on the evidence in the record, Denson—a fellow dispatcher with similar duties to
Pettway—committed numerous errors of comparable seriousness but did not receive discipline for
her actions. Thus, the Court concludes that Denson is a similarly-situated employee outside of the
protected class. See Grose, 2008 U.S. Dist. LEXIS 16654, at *9-*10. Moreover, based on the
evidence discussed above, the Court finds that there is a genuine issue of material fact as to whether
Denson, a white employee, was treated more favorably than Pettway. Accordingly, Pettway has
established his prima facie case of race discrimination.
3. Reverse Gender Discrimination
As to his gender-discrimination claim, Pettway alleges that women received more
favorable treatment than men at LSG. (D.N. 20, PageID # 215-216, 218) Pettway argues that he
was reduced to part-time while two female dispatchers with less seniority were kept on full-time.
(D.N. 41, PageID # 710) Pettway also argues that although he had ten years greater seniority, a
woman was promoted to Lead Dispatcher while he was not given the opportunity to apply. (Id.,
PageID # 710-11) Pettway has already shown that he was qualified for his position and that he
suffered an adverse employment action. See supra Part (B)(1)(ii)(A)-(B). As to the other two
prongs, the first and fourth prongs of the prima facie test are modified for claims of reverse gender
discrimination. Simpson v. Vanderbilt Univ., 359 F. App’x 562, 569 (citing Leadbetter v. Gilley,
385 F.3d 683, 690 (6th Cir. 2004)). First, instead of membership in a protected class, Pettway
“must demonstrate background circumstances [to] support the suspicion that [LSG] is that unusual
employer who discriminates against the majority.” Id. (first alteration in original) (quoting
Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003)). And for the fourth
32
prong, he must show that LSG “treated differently employees who were similarly situated but were
not members of the protected class.” Id. (quoting Sutherland, 344 F.3d at 614). Therefore, Pettway
must show that he was treated differently than a similarly situated employee who did not identify
as male. As explained above, Pettway has already demonstrated a genuine issue of material fact
as to whether he was treated differently than a similarly situated female employee. Cf. Malloy v.
Potter, 266 F. App’x 424, 427 (6th Cir. 2008) (finding that the plaintiff’s reverse-discrimination
claim failed in part because the plaintiff “did not point to any female employees who were similarly
situated to him”). Thus, the Court need only determine whether LSG is that “unusual employer
who discriminates against the majority.” Simpson, 359 F. App’x at 569.
Pettway has alleged sufficient background circumstances to support the suspicion that LSG
discriminates against male employees. As explained above, Pettway has offered examples of
female employees engaging in conduct potentially warranting discipline but receiving a lesser
sanction than Pettway or no sanction at all. Cf. Arendale v. City of Memphis, 519 F.3d 587, 604
(6th Cir. 2008) (finding that although it was true that the defendant, an African-American officer,
had not filed charges of discipline against a non-white officer, that alone was insufficient to show
a prima facie case and that the plaintiff needed to show that a minority officer engaged in similarly
sanctionable conduct, but received a less severe sanction). As explained above, Scott continued
to catalogue Pettway’s errors while telling him to “quit sending” her the errors of other employees.
(D.N. 40-4, PageID # 424; D.N. 41-2, PageID # 733) Since he returned to full-time status, Pettway
is the only male dispatcher. (D.N. 41-1, PageID # 723) Fisher testified that Scott requested that
only Pettway’s errors be sent in emails to Scott and Gonsalves, and that Scott told Fisher that she
could speak to the other dispatchers in person about their errors. (D.N. 40-3, PageID # 741)
Further, the three employees in the TMP section who were moved to part-time were all men, and
33
Gonsalves confirmed that only men under Scott’s supervision were moved to part-time. (D.N. 407, PageID # 583) As described above, Pettway stated in his declaration that when the opportunity
for promotion arose, a female employee was promoted without the position ever being posted.
(D.N. 41-1, PageID # 724)
Viewing this evidence in the light most favorable to Pettway, the Court finds that he has
raised a genuine issue of material fact as to whether LSG is the “unusual employer” that
discriminates against male employees. Simpson, 359 F. App’x at 569. Thus, Pettway has
established a prima facie case of reverse gender discrimination sufficient to survive summary
judgment. Simpson, 359 F. App’x at 569.
4. Disability Discrimination
As to his federal disability-discrimination claim, Pettway alleges that he “was treated
differently because of his age.” (D.N. 41, PageID # 716) Specifically, Pettway states that “LSG
perceived Pettway as having a disability and engaged in discriminatory treatment of Pettway on
that basis” and “perceived Pettway to be disabled and unable to perform major life activities
because of his age” in violation of the ADA. (D.N. 20, PageID # 212, 219) “Under the ADA, in
the absence of direct evidence of disability discrimination, a plaintiff may seek to establish a prima
facie case of discrimination.” Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 810 (6th Cir.
1999)). To establish a prima facie case of discrimination under the ADA, Pettway must show that
“(1) [he] was ‘disabled’ within the meaning of the Act; (2) [he] was qualified for the position, with
or without accommodation; (3) [he] suffered an adverse employment decision with regard to the
position in question; and (4) a non-disabled person replaced [him].” Stearman v. Ferro Coals,
Inc., No. 3:15-cv-31-DJH-DW, 2017 U.S. Dist. LEXIS 195020, at *16 (W.D. Ky. Nov. 28, 2017)
(quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 882 (6th Cir. 1996)).
34
Pettway’s
discrimination claim fails for two reasons. First, age is not considered a disability under the ADA.
S. Rep. No. 116, 101st Cong., 1st Sess. at 22 (1989) (Senate Committee on Labor and Human
Resources); H.R. Rep. No. 485, Part 3, 101st Cong., 2d Sess. at 28 (1990) (House Judiciary
Report); 29 C.F.R. App. § 1630.2(h), 76 Fed. Reg. 16,978, 17,007 (2011). Second, Pettway has
not satisfied the fourth prong of his prima facie case.
As explained above, this is a workforce-reduction situation and the modified prima facie
standard applies. See supra Part (B)(1)(ii)(C). As such, Pettway must “provide additional direct,
circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff
for discharge for impermissible reasons.” Geiger, 579 F.3d at 624. Pettway provided that LSG
perceived Pettway’s age “as a disability, treating him if he was unable to understand, follow or
remember simple instructions because of his age” (D.N. 41, PageID # 717); Scott “talked to
[Pettway] like [he] was an idiot” and would speak to him in “slow motion like it’s hard for [him]
to understand” (D.N. 40-5, PageID # 452); Scott told Pettway that he had a “tendency to forget”
and that he was “very forgetful,” which Pettway interpreted to mean “[y]ou are too old and you
forget” (id., PageID # 455); and Scott would “often speak to older workers like they were idiots
and not capable of understanding or remembering her instructions” (D.N. 41-2, PageID # 734).
As to the first point, briefs are not evidence. Bormuth v. Cnty. of Jackson, 870 F.3d 494, 524 (6th
Cir. 2017). Moreover, a significant portion of Pettway’s “evidence” simply attempts to show that
LSG perceived his age as a disability. As explained above, however, age itself is not a recognized
disability. Finally, the remainder of the evidence fails to satisfy Pettway’s heightened prima facie
burden as it does not indicate that LSG or its agents singled out Pettway for discharge due to his
perceived disability. Geiger, 579 F.3d at 624. Thus, Pettway’s disability discrimination claim
fails.
35
5. Burden of Production
Pettway has presented sufficient circumstantial evidence to establish a prima facie case of
race, gender, and age discrimination. “Once a plaintiff has established his or her prima facie case,
the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the
challenged employment action. If the employer articulates a legitimate, non-discriminatory reason
for its action, the burden shifts to the plaintiff to come forward with admissible evidence showing
that the employer’s articulate[d] reason is just a pretext for unlawful discrimination.” Walton v.
Best Buy Co., No. 2:08-cv-15084, 2010 U.S. Dist. LEXIS 83788, at *26 (E.D. Mich. Aug. 17,
2010).
LSG states that it moved Pettway to part-time status because the government mandated
that LSG “immediately” reduce overall dispatcher hours, and that Pettway was selected for the
reduction out of the three dispatchers due to his lower job performance. (D.N. 40-1, PageID # 393)
Specifically, LSG states that “at the direction of human resources, [Gonsalves] decided to make
his decision by ‘looking at the total employee,’ including performance” and selected the dispatcher
that “1) had just been written up for making serious errors and made the same error again the very
day of the warning[,] and 2) the dispatcher that everyone with knowledge has testified made the
most errors.” (D.N. 42, PageID # 794) Job performance is a legitimate nondiscriminatory reason
for an employment decision. See Cicero v. Borg-Warner Auto, Inc., 280 F.3d 579, 588 (6th Cir.
2002) (“Terminating an employee because he fails to perform satisfactorily is a legitimate and
nondiscriminatory reason to end his employment.”); Cunningham v. Humana Ins. Co., 2011 U.S.
Dist. LEXIS 98372, at *9 (W.D. Ky. Aug. 31, 2011) (finding that “an employee’s failure to meet
established performance standards . . . is certainly a legitimate business reason for termination”
36
(citation omitted)). Thus, LSG has satisfied its burden to set forth a legitimate nondiscriminatory
reason for its decision to move Pettway to part-time.
6. Pretext
Because LSG has articulated a legitimate nondiscriminatory reason for the adverse
employment decision, the burden shifts back to Pettway to come forward with evidence showing
that LSG’s articulated reason was simply a pretext for illegal discrimination. Walton, 2010 U.S.
Dist. LEXIS 83788, at *26. “To show pretext at the summary judgment stage, ‘the plaintiff is
required to show by a preponderance of the evidence either (1) that the proffered reasons had no
basis in fact, (2) that the proffered reasons did not actually motivate [the adverse employment
action], or (3) that they were insufficient to motivate [the adverse employment action].’” Carter,
529 F. App’x at 610 (quoting Manzer v. Diamon Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th
Cir. 1994) (emphasis and internal quotation marks omitted)). “Whichever method the plaintiff
employs, he always bears the burden of producing ‘sufficient evidence from which the jury could
reasonably reject [the defendants’] explanation and infer that the defendants intentionally
discriminated against him.’” Luttrell v. Ford Motor Co., No. 3:16-cv-762-DJH-CHL, 2018 U.S.
Dist. LEXIS 121662, at *23 (W.D. Ky. July 20, 2018) (quoting Jordan v. Kohl’s Dep’t Stores,
Inc., 490 F. App’x 738, 742 (6th Cir. 2012)). “Courts have recognized that in discrimination and
retaliation cases, an employer’s true motivations are particularly difficult to ascertain . . . .”
Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 564 (6th Cir. 2004) (citing U.S. Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)). This makes “such factual determinations
unsuitable for disposition at the summary judgment stage.” Id. (citing Lowe v. City of Monrovia,
775 F.3d 998, 1009 (9th Cir. 1985) (stating that very little evidence is required to raise a genuine
37
issue of fact regarding motive and concluding that summary judgment on the merits is ordinarily
inappropriate once a prima facie case has been established)).
Pettway first appears to argue that LSG’s proffered reason did not motivate his discharge,
stating that there is “ample evidence [showing that] performance was not the real reason” LSG
moved him to part-time. (D.N. 41, PageID # 718) Pettway then immediately states that LSG’s
proffered reason was “insufficient” and “unreasonable” under the circumstances. (Id.) For the
reasons explained below, the Court finds that LSG’s proffered reason was pretextual under the
third showing in Carter. 529 F. App’x at 610.
i. Third Showing
Pettway’s strongest argument is under the third showing, which “ordinarily consists of
evidence that other employees, particularly employees not in the protected class, were not
[demoted] even though they engaged in substantially identical conduct to that which the employer
contends motivated its [demotion] of the plaintiff.” Quinn-Hunt v. Bennett Enters., 211 F. App’x
452, 459-60 (6th Cir. 2006) (quoting Manzer, 29 F.3d at 1084)). This third showing means that a
showing of insufficiency may overlap with the “similarly situated” prong of the prima facie case.
See Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 676 (6th Cir. 2008) (quoting
Manzer, 29 F.3d at 1084). As explained above, Pettway has provided evidence that he was treated
differently than Denson, a similarly situated younger white female employee.
Pettway offered evidence showing that Denson did not receive any discipline despite
committing similar errors to Pettway, and that Scott rejected Pettway’s attempts to report the
mistakes of other employees, including Denson. (D.N. 40-3, PageID # 403-04; D.N. 40-4,
PageID # 420, 424; D.N. 41, PageID # 707-08) Moreover, Ashley confirmed in her declaration
that Pettway was singled out for discipline, noting that Pettway was the only employee “written
38
up for not signing the key log, errors in paperwork, or bus assignment issues” and that Denson
would collect only Pettway’s paperwork to bring to Scott’s office. (D.N. 41-2, PageID # 733-34)
Although LSG contends that Ashley did not work in the dispatch department, she would cover
dispatch when needed and “fill[ed] in at dispatch on a regular basis.” (Id., PageID # 733) Viewing
the evidence in the light most favorable to Pettway, a reasonable jury could conclude that other
employees were not demoted or disciplined for substantially identical conduct. Carter, 529 F.
App’x at 610. Thus, Pettway has sufficiently established pretext under the third showing and
summary judgment will be denied. Id.
C.
Retaliation
In his amended complaint, Pettway alleged that LSG retaliated against him for complaints
made to his employer and the Equal Employment Opportunity Commission; the filing of his
complaint in this matter; and his “reporting and refusing to drop charges of discrimination.”
(D.N. 20, PageID # 220-21) Pettway has provided no direct evidence of retaliation. In assessing
claims of retaliation based on circumstantial evidence, courts apply the burden-shifting analysis of
McDonnell Douglas. Stanley v. Insights Training Gr., LLC, No. 3:09-cv-231, 2013 U.S. Dist.
LEXIS 1428, at *18 (W.D. Ky. Jan. 4, 2013) (citing Hamilton v. Gen. Elec. Co., 556 F.3d 428,
435 (6th Cir. 2009)). As explained above, Pettway has already established a genuine issue of
material fact as to whether LSG’s proffered reason for his termination was pretextual. Therefore,
the Court need only determine whether Pettway has made a prima facie showing that: (1) he
engaged in a protected activity; (2) LSG knew of the protected activity; (3) LSG subsequently took
an adverse employment action against him; and (4) “there was a causal connection between
[Pettway’s] protected activity and the adverse employment action.” Stevens v. St. Elizabeth Med.
Ctr., Inc., 533 F. App’x 624, 631 (6th Cir. 2013) (citing Niswander v. Cincinnati Ins. Co., 529
39
F.3d 714, 720 (6th Cir. 2008); Brooks v. Lexington-Fayette Urban Cty. Hous. Auth., 132 S.W.3d
790, 803 (Ky. 2004)). For the reasons explained below, the Court finds that Pettway has
established a prima facie case of retaliation.
a. Materially Adverse Employment Action
Pettway correctly notes that the definition of “adverse employment action” in the
retaliation context is less restrictive than the definition applied to substantive discrimination
claims. See Laster v. City of Kalamazoo, 746 F.3d 714, 731 (6th Cir. 2014) (noting that the
“materially adverse employment action” element of a retaliation claim is “less onerous” to
establish than the “adverse employment action” element of a discrimination claim).
“The
antiretaliation provision, unlike the substantive [antidiscrimination] provision, is not limited to
discriminatory actions that affect the terms and conditions of employment.” Burlington Northern
& Santa Fe Ry. v. White, 548 U.S. 53, 64 (2006)). In the context of retaliation, therefore, a plaintiff
need only show that “the employer’s actions (are) harmful to the point they could well dissuade a
reasonable worker from making or supporting a charge of discrimination.” Coventry Health, 2015
U.S. Dist. LEXIS 147910, at *28 (quoting Burlington Northern, 548 U.S. at 57).
The Court has already determined that Pettway suffered an adverse employment action
under the stricter standard when he was moved to part-time status on October 14, 2016. See supra
Part (B)(b)(i)(1). Pettway also claims that his “material drop” in hours after November 18, 2016,
and the singular reporting of his errors also constitute adverse employment actions in the retaliation
context. (D.N. 41, PageID # 714-16) The reduction in hours is an adverse employment action
separate and distinct from Pettway’s move to part-time because—as will be explained below—it
occurred in close proximity to Pettway’s demand letter, more than a month after his move to parttime. (Id., PageID # 714) Reducing an employee’s hours to a significant degree could dissuade a
40
reasonable worker from pursuing a charge of discrimination.
See Arnold v. Cincinnati
Sportservice, Inc., No. 1:12-CV-460, 2013 U.S. Dist. LEXIS 99011, at *31 (S.D. Ohio July 16,
2013) (finding that a reduction in hours “caused a material decrease in [the plaintiff’s] wages which
constitutes an adverse employment action” in the retaliation context); see also Eure v. Sage Corp.,
61 F. Supp. 3d 651, 666 (W.D. Tx. 2014) (“Because a reduction in hours—and, consequently, the
reduction in associated income—could dissuade a reasonable employee from making or supporting
a charge of discrimination, a reduction in hours can be an adverse employment action in the
retaliation context.” (citations omitted)).
Thus, Pettway suffered from a distinct adverse
employment action when his hours were reduced after November 18, 2016. See Coventry Health,
2015 U.S. Dist. LEXIS 147910, at *28.
Scott’s request that Fisher send a report of only Pettway’s errors is also an adverse
employment action in the retaliation context. It is reasonable to assume that employees could be
dissuaded from making their own complaint or supporting another employee’s claims after
observing that only Pettway’s errors were singled out for reporting to upper management after
filing the present lawsuit. For example, Fisher was dissuaded from reporting Scott’s actions after
seeing Scott’s behavior toward Pettway. Scott told Fisher to send her a report which included only
Pettway’s errors. (D.N. 41-3, PageID # 741-42) Although Fisher questioned why Scott requested
that only Pettway’s mistakes be submitted, she was wary of bringing the issue to Scott because
Scott was “vindictive.” (Id., PageID # 742, 751) Fisher testified that it was her concern that Scott
was “going to try and prove that [she was] not needed in [her] position” if she reported Scott’s
actions. (Id., PageID # 751) Therefore, as it could reasonably dissuade other employees from also
engaging in protected activity, singling out an employee’s errors for reporting to upper
41
management constitutes an adverse employment action in the retaliation context. Coventry Health,
2015 U.S. Dist. LEXIS 147910, at *28.
b. Protected Activity
“Title VII generally prohibits retaliatory conduct when an employee has participated in an
investigation, hearing, or proceeding under Title VII, or when an employee has otherwise opposed
discrimination made unlawful under Title VII.” Armstrong v. Whirlpool Corp., 363 F. App’x 317,
331 (6th Cir. 2010) (citing Niswander, 529 F.3d at 719-20). “The opposition clause protects not
only the filing of formal discrimination charges with the EEOC, but also complaints to
management and less formal protests of discriminatory employment practices.” Laster, 746 F.3d
at 730. It “encompasses utilizing formal grievance procedures as well as staging informal protests
and voicing one’s opinions in order to bring attention to an employer’s discriminatory activities.”
Simmons v. A.I.M.C.O. Prop. Mgmt., No. 1:08 CV 0513, 2008 U.S. Dist. LEXIS 32587, at *13
(N.D. Ohio Apr. 21, 2008) (citing Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253,
259 (4th Cir. 1998)).
“Complaints cannot be “[v]ague charges of discrimination or that
‘management is out to get the plaintiff,’” however. Love v. Elec. Power Bd. of Chattanooga, EPB,
392 F. App’x 405, 409 (6th Cir. 2010). LSG does not appear to contest that Pettway’s demand
letter, his complaint to the EEOC, and this present lawsuit constitute protected activities. (See
D.N. 40-1; D.N. 42) The Court finds that such actions constitute protected activities. See
Armstrong, 363 F. App’x at 331; Laster, 746 F.3d at 730.
LSG argues, however, that Pettway’s “[c]omplaints of unfair treatment are not protected
activity because they lack a specific complaint of age, race, or gender discrimination”; that Pettway
never made a written or oral complaint of discrimination to LSG; and that even if Pettway’s
complaints to Palmer constituted complaints to LSG, “general complaints about company
42
management and one’s own negative performance evaluation . . . do not suffice.” (D.N. 40-1,
PageID # 384-85) LSG maintains that “Pettway never took any of his concerns about Scott to
LSG before the decision to move him to part-time was made.” (D.N. 42, PageID # 794) Viewing
the evidence in the light most favorable to Pettway, however, the opposition clause protects his
complaints to Casey Palmer about Scott’s unlawful harassment. New Breed Logistics, 783 F.3d at
1067-68 (“A demand that a supervisor cease his/her harassing conduct constitutes protected
activity covered by Title VII.”).
The language of the opposition clause does not specify to whom protected activity must be
directed. Warren v. Ohio Dep’t of Pub. Safety, 24 F. App’x 259, 265 (6th Cir. 2001) (explaining
that under the opposition clause, there is “no qualification” as to who the individual doing the
complaining must be or to whom the complaint must be made); see also New Breed Logistics, 783
F.3d at 1068 (citing Ross v. Baldwin Cty. Bd. of Ed., No. 06-275, at *6 (S.D. Ala. Mar. 24, 2008)
(“It would be anomalous, and would undermine the fundamental purpose of the statute, if Title
VII’s protection from retaliation were triggered only if the employee complained to some
particular official designated by the employer.”). Here, Pettway testified that he brought forward
complaints of Scott’s discriminatory conduct. (D.N. 40-5, PageID # 448) Pettway said that he
consulted Ashley because he did not know the identity of LSG’s HR representative. (Id.) Pettway
testified that Ashley told him to speak with Palmer, the prime contractor’s project manager. (Id.)
In her declaration, Ashley confirmed that she told Pettway to speak with Palmer because there was
a community notice board in the break room “that had posters and information on it about
discrimination,” including a paper that listed Palmer “as the next person on post to go to.”
(D.N. 41-2, PageID # 735)
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Pettway stated in both his deposition and his declaration that he met with Palmer because
he believed Palmer was an officer of LSG and would be able to help him.
(D.N. 40-5,
PageID # 448; D.N. 41-2, PageID # 735) Pettway met with Palmer on October 13, 2016 and states
that he told Palmer at the meeting that he felt he was being discriminated against. (D.N. 40-5,
PageID # 448) Pettway testified that he explained to Palmer that no matter what he did, he felt
targeted and that everything he did was wrong. (Id.) In his declaration, Palmer states that he
advised Pettway that he would need to address his concerns to LSG. (D.N. 40-10, PageID # 667)
Pettway testified, however, that Palmer did not tell him to go to LSG upper management, and
instead told Pettway “You’re not talking to deaf ears. I will check this out. I will look into it.”
(D.N. 40-5, PageID # 453) In his declaration, Pettway claims that he provided significant details
as to age, race, and sex discrimination during his meeting with Palmer (see D.N. 41-1, PageID #
726-27), “leaving no doubt discrimination on these grounds was being alleged and
leaving . . . Pettway with the belief that something was going to be done about his report” (D.N.
41, PageID # 713). As there is evidence that Pettway brought his complaints to Palmer in order to
end Scott’s discriminatory conduct, a genuine issue of material fact exists as to whether Pettway’s
complaints to Palmer are protected under the opposition clause. See New Breed Logistics, 783
F.3d at 1067-68 (“If an employee demands that his/her supervisor stop engaging in this unlawful
practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s
broad language confers protection to this conduct.”).
c. Knowledge of Protected Activity
In order to satisfy the knowledge prong of his prima facie retaliation case, Pettway must
produce evidence sufficient to establish that the individuals who took the adverse employment
action knew of his protected activity. Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002). In
44
making this determination, the Court considers the knowledge and motive of those who were
meaningfully involved in or influenced the [adverse employment] decision. See Wells v. New
Cherokee Corp., 58 F.3d 233, 238 (6th Cir. 1995) (“[C]ourts must consider as probative evidence
any statements made by those individuals who are in fact meaningfully involved in the decision to
[demote] an employee.”).
Here, those individuals are Gonsalves and Scott.
Where “the
decisionmaker denies having knowledge of the alleged protected activity, the plaintiff must do
more than ‘offer[] only conspiratorial theories . . . or flights of fancy, speculations, hunches,
intuitions, or rumors.’” Proffitt v. Metro Gov’t of Nashville & Davidson Cty., Tenn., 150 F. App’x
439, 443 (6th Cir. 2005) (quoting Mulhall, 287 F.3d at 552 (internal quotation marks omitted)).
“An employee may survive summary judgment by producing either direct or circumstantial
evidence to establish th[e] [knowledge] element of h[is] claim.” Lewis-Smith v. W. Ky. Univ., 85
F. Supp. 3d 885, 909 (W.D. Ky. 2015) (citing Proffitt, 150 F. App’x at 442-43). The Sixth Circuit
has inferred knowledge of a protected activity in situations where the decisionmaker “took an
action with respect to the plaintiff, other than the challenged adverse action, from which it could
be inferred that the [decisionmaker] was aware of the plaintiff’s protected activity.” Mulhall, 287
F.3d at 552-53. Further, a decisionmaker’s “knowledge of a plaintiff’s protected activity can be
inferred from evidence of the prior interaction of individuals with such knowledge and those taking
the adverse employment action.” Id. at 553. “A reasonable jury could make this inference when
the plaintiff produces evidence that such prior interactions make it ‘highly improbable’ that the
individual who knew of the plaintiff’s protected activity did not share this information with the
second individual who actually took the adverse employment action as soon as the first individual
obtained the information.” Garrett v. Mercedes-Benz Fin. Servs., USA LLC, 331 F. Supp. 3d 699,
715 (E.D. Mich. 2018) (citing Mulhall, 287 F.3d at 553 (citation omitted)). LSG does not appear
45
to dispute having knowledge of Pettway’s lawsuit, demand letter, or complaint to the EEOC. (See
D.N. 40-1; D.N. 41, PageID # 714) Pettway provides no direct evidence that LSG knew of his
complaints to Palmer prior to the decision to move Pettway to part-time, however. The Court thus
need only determine whether there is circumstantial evidence sufficient to establish that LSG knew
of Pettway’s complaints to Palmer. Pettway has failed to produce such evidence.
According to Gonsalves, Palmer did not disclose what Pettway said during their meeting.
(D.N. 40-7, PageID # 578) Palmer acknowledged that LTS and LSG are separate companies and
that he played no role in LSG’s human-resource matters. (D.N. 40-10, PageID # 667) Pettway
has provided no evidence of a prior interaction between Palmer and either Scott or Gonsalves from
which the Court could infer knowledge of Pettway’s October 13, 2016 complaint. Cf. Hicks v.
SSP Am. Inc., 490 F. App’x 781, 785 (6th Cir. 2012) (imputing knowledge where the supervisor
who made the decision to terminate the plaintiff was friends with two supervisors, one of whom
was the plaintiff’s direct supervisor who “remembered seeing” plaintiff’s charges of
discrimination, and the other was the individual who had informed the plaintiff’s direct supervisor
that the plaintiff was filing for discrimination). Nor has Pettway provided evidence that anyone at
LSG took any other action from which the Court could infer knowledge beyond those challenged
as adverse employment actions. Pettway’s claim that he suffered adverse employment actions for
making protected complaints to Palmer therefore fails. Mulhall, 287 F.3d at 552. However,
because LSG does not contest that it had knowledge of Pettway’s demand letter, lawsuit, and
EEOC complaint, the knowledge element of his prima facie case is met as to those protected
activities.
46
d. Causal Connection
For the fourth prong, Pettway must show a causal connection between the protected activity
and the adverse employment action. Scott v. Metro. Health Corp., 234 F. App’x 341, 347 (6th Cir.
2007) (citing Balmer v. HCA, Inc., 423 F.3d 606, 613-14 (6th Cir. 2005)). As explained above,
the Court has found that Pettway has failed to provide sufficient evidence that Gonsalves or Scott
had knowledge of his complaints to Palmer prior to the decision to move him to part-time.
Therefore, the Court need only determine whether there was a causal connection between the
adverse employment actions and the demand letter, the EEOC complaint, and the present lawsuit.
To establish the requisite causal connection, Pettway “must produce sufficient evidence
‘from which an inference could be drawn that the adverse action would not have been taken had’
[Pettway] not engaged in protected activity.” Wilkey v. Mgmt. & Training Corp., No. 4:15-CV101-JHM, 2017 U.S. Dist. LEXIS 124155, at *7-*8 (W.D. Ky. Aug. 7, 2017) (citing Nguyen, 229
F.2d at 563; Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). This requires
proof that the unlawful retaliation would not have occurred absent the alleged wrongful action of
the employer. Id. “Causation can be proven indirectly through circumstantial evidence such as
suspicious timing.” Lindsay v. Yates, 578 F.3d 407, 418 (6th Cir. 2009) (citing Mickey v. Zeidler
Tool & Die Co., 516 F.3d 516, 524-25 (6th Cir. 2008)). Specifically, the Sixth Circuit has found
that temporal proximity between an assertion of Title VII rights and a “materially adverse action
is sufficient to establish the causal connection element of a retaliation claim ‘[w]here an adverse
employment action occurs very close in time after an employer learns of a protected activity.’” Id.
But, “the more time that elapses between the protected activity and the adverse employment action,
the more the plaintiff must supplement his claim with other evidence of retaliatory conduct to
47
establish causality.” Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010)
(internal quotations and citation omitted).
i. Material Drop in Hours
The Sixth Circuit has found sufficient evidence of causal connection where the time
between the employee’s protected activity and the employer’s adverse action was three months or
less. See e.g., Dye v. Office of the Racing Comm’n, 702 F.3d 286, 306 (6th Cir. 2012) (finding two
months to be sufficient to show a causal connection); Singfield v. Akron Metro. Hous. Auth., 389
F.3d 555, 563 (6th Cir. 2004) (stating that three months was “significant enough to constitute
sufficient evidence of a causal connection”). Pettway was reduced to part-time on October 14,
2016, effective immediately. (D.N. 41-1, PageID # 727) Pettway received LSG’s response to his
demand letter on November 18, 2016. (Id., PageID # 728) In the two pay periods immediately
following Pettway’s move to part-time, but prior to LSG’s response to his demand letter, Pettway
was scheduled for 45.90 and 48 hours, respectively. (D.N. 41-6, PageID # 782) This averages out
to approximately 23.48 hours per week.
In the two pay periods immediately following LSG’s response to Pettway’s demand letter,
however, Pettway was only scheduled for a total of 22.6 and 35.10 hours, respectively. (Id.) This
averages out to only about 14.43 hours per week. Then, from December 17, 2016, to December
30, 2016, Pettway was scheduled for zero hours. (Id.) LSG—through Scott—claimed that this
was due to a regularly scheduled shutdown that affected the evening shift that Pettway worked.
(D.N. 40-4, PageID # 422; D.N. 41-1, PageID # 714) Even taking this as true, Pettway was only
scheduled to work 27.40 hours for the period from December 31, 2016, to January 13, 2017, after
the holiday shutdown ended. (D.N. 41-6, PageID # 782) This again averages out to only 13.7
hours per week. It was not until the pay period from February 11, 2017, to February 24, 2017, that
48
Pettway was returned to the part-time hours originally afforded him before November 18, 2016.
(Id.)
Pettway’s demand letter, addressed to LSG by way of Palmer, was dated November 4,
2016. (D.N. 40-5, PageID # 507) It is unclear when LSG became aware of the demand letter
because, as explained above, Palmer is not technically an employee of LSG. Logically, however,
LSG became aware of the demand letter at some point between November 4, 2016, and Pettway
receiving LSG’s response on November 18, 2016. Pettway’s hours were significantly reduced
within a month of sending the letter. While LSG might argue that this reduction in hours was
because of Pettway’s move to part-time, Pettway’s payroll records show that his hours were not
reduced to such a significant degree until after November 18, 2016, even though his demotion
became effective immediately. (D.N. 41-6, PageID # 782) Based on the above, Pettway has
presented sufficient facts to establish a causal connection between his demand letter and the
subsequent “material drop” in his scheduled hours. See Herrera v. Churchill McGee, LLC, 545 F.
App’x 499, 501 (6th Cir. 2013) (holding that temporal proximity of one month between the
plaintiff’s protected activity and adverse employment action was sufficient to establish a causal
connection); Shefferly v. Health Alliance Plan of Mich., 94 F. App’x 275, 285 (6th Cir. 2004)
(“[T]he passage of less than three weeks between [the employer’s] receipt of charges and the
adverse actions gives rise to an inference of discrimination”); DiCarlo, 358 F.3d at 421-22
(holding that the passage of only twenty-one days between the plaintiff’s filing of an EEOC charge
and his termination gave rise to an inference of a causal connection between the two events
sufficient to establish a prima facie case of retaliation).
49
ii. Singling Out Errors
Temporal proximity is insufficient to establish a causal connection between the singling
out of Pettway’s errors for review and a protected activity, however. As explained above, LSG
responded to Pettway’s demand letter in November 2016. (D.N. 40-5, PageID # 507; D.N. 41-1,
PageID # 728) Pettway filed the present lawsuit on January 17, 2017 (D.N. 1-1, PageID # 6-7),
and filed a charge of discrimination with the EEOC on January 30, 2017 (D.N. 40-5,
PageID # 510). It was not until September 2017 that Scott gave Fisher a list of Pettway’s errors
and directed her to email the errors to Scott and Gonsalves. (D.N. 40-7, PageID # 588, D.N. 413, PageID # 741-42) This is a gap of more than seven months between the last of Pettway’s
protected activities and Scott’s directive to Fisher. Under these circumstances, temporal proximity
alone is insufficient to establish a causal connection. See Blessing v. Ohio Univ., No. 2:09-CV0762, 2011 U.S. Dist. LEXIS 140182, at *64 (S.D. Ohio Dec. 6, 2011) (“A one- to- three month
time lapse has been held sufficiently close to support a finding that a causal connection exists, but
‘proximity alone will not suffice where the adverse action occurs more than a few months . . . after
the protected conduct.” (quoting Hamilton v. Starcom Mediavest Gr., 522 F.3d 623, 629 (2008)).
There is a genuine issue of material fact, however, as to whether Pettway’s errors would
have been singled out for review “but for” his filing of the present lawsuit. As explained above,
Scott asked Fisher to email her and Gonsalves a report of only Pettway’s errors. (D.N. 41-3,
PageID # 741-42) This occurred the month after Pettway was returned to full-time. (D.N. 40-1,
PageID # 378; D.N. 41-3, PageID # 741-42) Fisher noted that other dispatchers made errors as
well, and Scott informed Fisher that she could meet with those dispatchers to discuss their errors.
(D.N. 41-3, PageID # 741) Scott told Fisher that she could not do the same with Pettway, however.
(Id.) Gonsalves testified that they requested this information from Fisher because they were noting
50
Pettway’s mistakes and errors but no longer counseling him per the instruction of LSG. (D.N. 407, PageID # 588) LSG confirmed that it has directed that all discipline of any nature against
Pettway should come through LSG’s corporate office and that all corrections be handled only with
verbal counseling. (D.N. 40-1, PageID # 378) LSG explicitly states that such actions were taken
to ensure that Pettway was “treated fairly in the face of his allegations against the onsite
management team.” (Id.) (italics added) Therefore, the Court need only take LSG at its word to
find a but-for causal connection between the singling out of Pettway’s errors and his protected
activity in engaging in this lawsuit. The Court thus finds that summary judgment on the retaliation
claim is not warranted.
D.
Negligent Hiring and Supervision
In his amended complaint, Pettway alleges that LSG was required to exercise reasonable
care in hiring and supervising the actions of its managers, supervisors, and employees. (D.N. 20,
PageID # 223-24) LSG argues that Pettway’s negligent hiring and supervision claims are
preempted by the Kentucky Workers Compensation Act. (D.N. 41-1, PageID # 380) Pettway
does not address his negligent hiring and supervision claim in his reply. (See D.N. 41)
Under the KWCA’s exclusivity provision, “[i]f an employer secures payment of
compensation as required by [the KWCA], the liability of such employer shall be exclusive and in
place of all other liability of such employer to the employee.” Ky. Rev. Stat. § 342.690. When a
plaintiff asserts “any theories of liability based on negligence [asserted by an employee against an
employer], for example negligent hiring . . . [or] negligent supervision . . . , relief is limited to
workers’ compensation by the exclusive remedy of KRS 342.690(1).” Tucker v City of Princeton,
2010 U.S. Dist. LEXIS 69502, at *31-*32 (W.D. Ky. July 13, 2010) (citing Estes v. Carpenter
Co., No. 2003-CA-90-MR and No. 2003-CA-190-MR, 2004 Ky. App. Unpub. LEXIS 2, at *7
51
(Ky. Ct. App. Nov. 19, 2004) (citations omitted)). Pettway does not contest that the KWCA applies
to his claim against LSG. Pettway makes no arguments as to his negligent supervision and hiring
claims and no argument as to the injuries suffered. (See D.N. 41) Even if the Court were to assume
the same injuries that Pettway previously alleged against the now dismissed defendants, the Court
finds that Pettway’s negligent hiring and supervision claims against LSG are “likewise preempted
by the KWCA notwithstanding Pettway’s allegations of some non-physical injuries.” (D.N. 36,
PageID # 364) Thus, the Court finds that Pettway’s claims for negligent supervision and hiring
against LSG are barred by the KWCA.
III.
For the reasons set forth above, and the Court being otherwise sufficiently advised, it is
hereby
ORDERED as follows:
(1)
LSG’s motion for summary judgment (D.N. 40) is GRANTED as to Counts I, II,
III, IV, VIII, X, XI, and XII of the amended complaint. The claims asserted in those counts are
DISMISSED. The motion is DENIED as to Counts V, VI, VII, and IX.
(2)
This matter is referred to Magistrate Judge Colin H. Lindsay for a status conference
and all other purposes consistent with the original referral. (See D.N. 6)
February 28, 2020
David J. Hale, Judge
United States District Court
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