Cole v. Management & Training Corporation
Filing
37
MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr on 10/31/13:For the foregoing reasons, Defendant Management & Training Corporations Motion for Summary Judgment 30 is GRANTED. cc:counsel (DJT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:11CV-118-JHM
JAMES COLE
PLAINTIFF
VS.
MANAGEMENT & TRAINING
CORPORATION
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Management & Training Corporation’s
Motion for Summary Judgment [DN 30]. Fully briefed, this matter is ripe for decision.
I. BACKGROUND
This case arises from the termination of Plaintiff James Cole’s employment at the Earle
C. Clements Center (“Earle C.”) on October 21, 2010. During his tenure at Earle C., Cole served
in various capacities, but he concluded his employment with the center as the Deputy Director.
Earle C., a facility located in Morganfield, Kentucky, operates under the Department of Labor’s
(DOL) national Job Corps program, which assists young, low-income individuals in obtaining a
high school education as well as assisting them in finding a job. Although the DOL administers
the program, it contracts with private corporations to actually operate the facility. In 2008 the
DOL contracted with Management & Training Corporation (“MTC”) to take-over operations of
the facility. MTC retained the previous Center Director, Billy Cooper, and based on Cooper’s
recommendation, hired Cole as the Deputy Center Director. In addition to making Cole the
Deputy Director, MTC put him in its executive development program, which provides training to
those individuals that the company believes could serve as a future director of a facility.
Due to the poor performance of Earle C. at the time MTC took control of the facility in
2008 and the continued low ranking in 2009, MTC sent Carol Savage, Director of Performance,
to Earle C. in order to provide technical assistance and to offer suggestions for improving the
center. Starting in August of 2009, Savage began her periodic visits to Earle C., but she
continued to have her main office in Utah. In addition to Savage, MTC sent Regional Operating
Directors (“RODs”), Kathryn Lea and Connie Brewer, to assist in the improvement of the
facility.
A. Alleged Incidents of Harassment and Reports of Harassment
According to Cole, the harassment by Savage started in September of 2009 when she saw
a photo of his family in his office. Cole, an African American, is married to a Caucasian woman
and they have two children together. After looking at the photo, Savage allegedly commented
that she could see he had “a thing for white women” and that “she understood why there were so
many women in management positions there, and she made accusations that maybe they or
[Cole] had jungle fever or something.” (Cole Depo., DN 30-2, at 8). In addition to harassment
by Savage, Cooper stated that he heard Lea and Brewer accuse Cole of promoting white females
at Earle C. in order to obtain sexual favors. (Cooper Depo., DN 33-2, at 17). Cooper also
specifically heard Lea refer to Cole as a “dog.” Id. at 18.
Following these incidents of harassment by Savage, Lea, and Brewer, Cole reported the
comments to Director Cooper. In addition, Cole, at Cooper’s direction, filed a complaint with
Teresa Hagedorn, the Earle C. Center Human Resources Manager. Hagedorn remembers Cole
making a formal complaint to her regarding the harassment and she stated she would normally
have sent the complaint on to either Kay Johnson or Jody Trujillo at the corporate HR offices.
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However, Defendant neither has a copy of any complaint filed by Hagedorn nor does Johnson
have any recollection of receiving a formal complaint.
The accusations as to Cole’s alleged affairs with staff led to an investigation by Kay
Johnson, MTC’s Corporate Human Resources Manager, in December of 2009.
At the
conclusion of her investigation, Johnson did not recommend any type of disciplinary action
against Cole. Approximately a month following the investigation, Cooper recommended meritbased salary increases for several employees, including Cole. However, Cole was denied an
increase. According to Cooper, Cole was the only employee who was denied an increase in
salary. In January of 2010, when Cole asked Johnson why he did not receive a merit increase,
Johnson reportedly responded, “white women around here.” (Cole Depo., DN 33-1, at 28-29).
Cole understood Johnson’s comment to be in reference to her previous investigation into Cole’s
alleged affairs with female staff. On the other hand, when Cooper inquired about Cole’s merit
increase, Johnson told Cooper that Cole actually received more in compensation than what the
company originally intended him to make as Deputy Director, and as a result, Johnson stated that
she would not approve a raise for him. (Cooper Depo., DN 33-2, at 29-30).
A third alleged incident of harassment occurred in March 2010 when Cole attended a
meeting with Lea and Savage. Although both Lea and Savage were in the room when Cole
entered, Savage said that she would leave Lea to handle the meeting. Shortly after Savage left
the room, Cole stated that the following interaction occurred:
So Kathryn Lea sits down across from me, and she grabs my arm, and
she's, like, caressing my arm and wanted me and started asking me questions
about sleeping with Jillian Russelburg. This is in March of 2010. This has been
going on since -- a year, since MTC had been there.
And she wanted me to discuss it. She said, "I know you're having an
affair." Kathryn Lea, "I know you're having an affair with Jillian Russelburg. You
can be honest with me and tell me about it," and this, that, and the other. . . .
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So she's rubbing my arm, she's got her boobs -- she always wore crazy
shirts, she's got her boobs all out on the table, and she's rubbing my arm, and I
made a comment to her. I said, "Kathryn, are you going to talk to me about
business, or is this the conversation you wanted to talk about?"
And she said, "I just want you to answer honestly," like that.
And I said, "I don't have anything to do with Jillian Russelburg, and stop
touching me, and if you're not going to talk to me about business I'm gone."
She said, "Well, I know you're lying."
And I said, "Well, how do you know I'm lying, Kathryn?
She said, “Because you looked away.”
(Cole Depo., DN 33-1, 24-25).
Shortly after this interaction with Lea, Cole said that he
interrupted a meeting to report the incident to Cooper and Lonnie Hall, the Southeast Region
Director. Cooper also contacted Hall concerning the harassment of Cole, and he remembered
Hall saying that he would handle this situation. However, when asked about the reports from
Cole and Cooper, Hall stated that he did not remember Cole making any complaints about sexual
or racial harassment.
In fact, Hall stated that he only “vaguely” remembered receiving a
complaint from Cole regarding Savage’s “audit being tough and interrupting either the classes or
something to that effect.” (Hall Depo., DN 30-6, at 4-5).
B. Request to Violate the Law
In addition to incidents of harassment, Cole alleges that Lonnie Hall requested that both
Cole and Cooper violate the Department of Labor’s Zero Tolerance Policy. This meeting took
place just prior to Cole’s graduation from the Executive Development Program. Also present in
the meeting at that time was Derrick Dulfin, Earle C. Center’s overseeing officer from the
Department of Labor. Specifically, according to Cooper, “Hall requested that students who were
caught with small amounts of marijuana not be prosecuted under the Center’s Zero Tolerance
policy, and that they not be separated from Job Corps program.” (Cooper Depo., DN 33-2, at 11).
Both Cole and Cooper refused Hall’s request to not enforce the Department’s Zero Tolerance
Policy.
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C. Cole’s Termination from MTC
An investigation into Earle C. occurred following a complaint made to the Department of
Labor by a student of unfair separation from the facility. Dulfin reported the incident to John
Pedersen, MTC’s Vice President of Operations. As a result, MTC created an investigation team
consisting of Carol Savage, Connie Brewer, Kathryn Lea, Lonnie Hall, and Kay Johnson to
investigate the allegations.
At the conclusion of the investigation, the team made several
personnel recommendations, including that MTC terminate both Cooper and Cole immediately
for “[j]udgment about reporting affair” and “[p]oor management.” (Summ. Of Investigation
Report 10-7-10, DN 30-14, at 8). The final decision to terminate Cole was made by Pedersen,
Hall, and Teresa Aramaki, Vice President of Human Resources.
On October 21, 2010, MTC terminated Cole after giving him the option to resign from
employment with MTC. Defendant provided Cole with a “Notice of Caution” that listed the
reasons for terminating him.
The Notice, a collection of information gathered during an
investigation concluded on October 7, 2010, listed three specific violations of MTC policy: (1)
“Careless and inefficient performance of duties,” (2) “Violation of any company or facility rules,
policies, the employee handbook, or federal, state or local laws,” and (3) “Involvement in a
criminal act or negative behavior that presents a detrimental image of the company or presents a
concern for the well-being or reputation or employees, the customer, or program participants.”
(Notice of Caution, DN 33-9, at 2).
II. SUMMARY JUDGMENT
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
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basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by “citing to
particular parts of materials in the record” or by “showing that the materials cited do not
establish the absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1). “The mere existence
of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 252. It is against this standard the Court reviews the following facts.
III. DISCUSSION
Plaintiff alleges four claims against Defendant MTC: (1) a hostile work environment
claim based on race and sex discrimination, (2) an unlawful termination claim for refusing to
violate the law, (3) a retaliation claim for reporting sex and race discrimination, and (4) an action
based on intentional infliction of emotional distress. However, Plaintiff conceded that he does
not have a claim for intentional infliction of emotional distress in his responsive motion. (Resp.
to Def.’s Mot. for Summ. J., DN 33, at 1). Therefore, the Court will not address this issue any
further. Defendant refutes liability for the three remaining claims.
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A. Sex/Race Hostile Work Environment Claim
Plaintiff alleges Defendant violated both Title VII and the Kentucky Civil Rights Act.
Under the Kentucky Civil Rights Act (“KCRA”), it is unlawful for an employer
[t]o fail or refuse to hire, or to discharge any individual, or otherwise to
discriminate against an individual with respect to compensation, terms,
conditions, or privileges of employment, because of the individual's race, color,
religion, national origin, sex[.]
K.R.S. § 344.040(1)(a). “Racial discrimination claims filed pursuant to Ky.Rev.Stat. §
344.040(1) are analyzed under the standards applied to federal racial discrimination claims
brought pursuant to Title VII of the Civil Rights Act of 1964.” Scott v. G & J Pepsi–Cola
Bottlers, Inc., 391 Fed. Appx. 475, 477 (6th Cir. 2010). Similarly, a sexual harassment claim
brought under KCRA is to be analyzed in the same manner as a claim brought under Title VII.
Ammerman v. Board of Educ. of Nicholas Cnty., 30 S.W.3d 793, 797–98 (Ky. 2000).
In order for racial harassment to be actionable under Title VII, “it must be sufficiently
severe or pervasive ‘to alter the conditions of [the victim's] employment and create an abusive
working environment.’” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (citation
omitted). The same applies for sexual harassment claims. See, e.g., Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 754 (1998) (“For any sexual harassment preceding the employment
decision to be actionable, however, the conduct must be severe or pervasive.”). To establish a
prima facie case of hostile work environment based on race, a plaintiff must prove that: “1) He
was a member of a protected class; 2) He was subjected to unwelcome racial . . . harassment; 3)
The harassment was based on race . . . ; 4) The harassment had the effect of unreasonably
interfering with [plaintiff's] work performance by creating an intimidating, hostile, or offensive
work environment; and 5) The existence of employer liability.” Hafford v. Seidner, 183 F.3d
506, 512 (6th Cir. 1999). In the case of sexual harassment, a plaintiff must show almost the
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exact same elements as those required for showing a hostile work environment based on race,
except that a plaintiff must establish that the harassment was based on sex.1 See Clark v. United
Parcel Service, Inc., 400 F.3d 341, 347 (6th Cir. 2005).
For the purposes of Defendant’s motion for summary judgment, the Court will assume
that the first three requirements are met since Defendant does not appear to dispute those
elements. Both parties focus on whether the actions by Savage, Lea, and Brewer rose to the level
of “hostile,” the fourth prong. In determining whether an environment is “hostile” or “abusive,”
the Court must look at the circumstances, including “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work performance.” Harris
v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The standard, as articulated by the Sixth
Circuit, for hostile is as follows:
Conduct that is not severe or pervasive enough to create an objectively hostile or
abusive work environment-an environment that a reasonable person would find
hostile or abusive-is beyond Title VII's purview. Likewise, if the victim does not
subjectively perceive the environment to be abusive, the conduct has not actually
altered the conditions of the victim's employment, and there is no Title VII
violation.
Williams v. General Motors, 187 F.3d 553, 566 (6th Cir. 1999) (citing Harris, 510 U.S. at 2122). “[S]imple teasing, . . . offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the terms and conditions of employment.” Barrett
v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009) (citation omitted). The fourth prong, the
1
For a sexual harassment claim, a plaintiff must demonstrate: “(1) she is a member of a protected class, (2) she
was subjected to unwelcome sexual harassment, (3) the harassment was based on her sex, (4) the harassment
created a hostile work environment, and that (5) the employer is vicariously liable.” Clark v. United Postal Service,
Inc., 400 F.3d 341, 347 (6th Cir. 2005) (quoting Williams v. Gen. Motors Corp., 187 F.3d 553, 560‐61 (6th Cir.
1999)).
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combination of a subjective and objective component, is analyzed based on a totality of
circumstances. Id.
Under these facts, there seems to be little doubt that Plaintiff considered the comments
made by Brewer, Lea, and Savage to be subjectively severe or pervasive as demonstrated by his
complaints concerning the behavior of those individuals. However, the comments and actions
must also be considered objectively severe or pervasive. As for severity of the alleged incidents,
Plaintiff argues that each situation he encountered with Brewer, Lea, and Savage would suffice
to meet the objectively severe element. Starting with the comment concerning “jungle fever,”
this appears to be an isolated incident that involved only Savage. In a case out of the Northern
District of Texas involving supervisor harassment of individuals in an interracial relationship, the
court concluded that “[a] reasonable jury could not find . . . that the references to ‘jungle fever’
were sufficiently severe and pervasive that they altered a term or condition of plaintiffs’
employment. Wooten v. Fed. Express Corp., 2007 U.S. Dist. LEXIS 2195, *73 (N.D. Tex. Jan.
9, 2007).2
However, on appeal, the Fifth Circuit noted that the outcome as to the racial
harassment claim may have been different if the plaintiffs had put the employer immediately on
notice following the comments. Specifically, the court noted that “in context, especially when
[plaintiff] reports that he asked [the supervisor] to stop, a reasonable juror could see it as more
than mere teasing; it can be understood to express a core of virulent and longstanding
disapproval of interracial romantic relationships.” Wooten v. Fed. Express Corp., 325 Fed.Appx.
297, 302 (5th Cir. 2009). In this instance, the alleged statement concerning “jungle fever” is
undoubtedly racist and “certainly insensitive, ignorant, and bigoted.” Williams v. CSX Transp.
Co., Inc., 643 F.3d 502, 513 (6th Cir. 2011) (quoting Harris, 510 U.S. at 23). However, the Sixth
2
In Wooten the supervisor made references to one of the plaintiffs having “jungle fever” approximately ten or
eleven times. Id.
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Circuit has held that one racial slur by a coworker does not make meet the objectively severe
requirement for a hostile work environment. Diamond v. U.S. Postal Service, 29 Fed.Appx. 207,
211 (6th Cir. 2002) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001)) (“But, as the
Supreme Court has recently held, normally a single remark, where it represents an ‘isolated
incident,’ is unable to produce so severe an effect.”). As a result, the single incident alleged by
Plaintiff is insufficient to rise to the level of severity to demonstrate a hostile work environment.
In addition to racial hostility, Cole alleges that Lea, Brewer, and Savage engaged in
sexual harassment by constantly accusing Plaintiff of having affairs with women who worked at
Earle C. Although Cole alleged that this happened many times, he only describes one specific
incident, other than the one previously discussed involving Savage, that involved an accusation
along with inappropriate physical contact. Plaintiff describes an incident that occurred with Lea
on March 2010 where Lea tried to get Cole to admit to having an affair with another employee,
and in the process, Lea allegedly rubbed his arm in a way that made him feel uncomfortable.
While this may constitute inappropriate behavior for the office, “Title VII was not meant to
create a ‘general civility code,’ and the ‘sporadic use of abusive language, gender-related jokes,
and occasional teasing’ are not sufficient to establish liability.” Clark v. United Parcel Service,
Inc., 400 F.3d 341, 352 (6th Cir. 2005) (quoting Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998)). At the same time, summary judgment should be denied in instances where a
plaintiff’s “allegations, taken as a whole, raise a question whether [a plaintiff] was subjected to
more than ‘genuine but innocuous differences in the ways men and women routinely interact[.]’”
Williams v. General Motors Corp., 187 F.3d 553, 564 (6th Cir. 1999) (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 75 (1998)).
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The Plaintiff fails to identify any case that would suggest this Lea’s behavior would be
considered severe enough to create a hostile work environment. In contrast, Defendant identifies
several cases in which courts granted summary judgment for the employer where much more
offensive instances of sexual harassment were alleged to have taken place. However, the Court
finds more compelling the facts of Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th Cir. 2000),
which involved three separate incidents of sexual harassment over the course of six months. The
most egregious incident occurred at a meeting in which the personnel manager “allegedly placed
a pack of cigarettes containing a lighter inside [plaintiff’s] tank top and brassiere strap.” Id.
Even though the incident involved an “element of physical invasion” and “perhaps even
constitute[d] a battery,” the court concluded that “a single battery coupled with two merely
offensive remarks over a six-month period does not create an issue of material fact as to whether
the conduct alleged was sufficiently severe to create a hostile work environment.” Id. at 984-85
(citation and internal quotation marks omitted).
Undoubtedly, Lea’s alleged rubbing of
Plaintiff’s arm and accusing him of an affair crossed the threshold into subjectively unwelcome
contact; however, the Court cannot conclude that the interaction sufficiently rises to the level of
an objectively severe environment that would allow a question to be presented to a jury.
Finally, the Court must also consider the pervasiveness of the harassment experienced by
Cole under the totality of circumstances. Regarding the importance of viewing all the individual
events as a whole, the Sixth Circuit noted as follows:
[T]he totality-of-circumstances test must be construed to mean that even where
individual instances of sexual harassment do not on their own create a hostile
environment, the accumulated effect of such incidents may result in a Title VII
violation. This totality-of-circumstances examination should be viewed as the
most basic tenet of the hostile-work-environment cause of action. Hence, courts
must be mindful of the need to review the work environment as a whole, rather
than focusing single-mindedly on individual acts of alleged hostility.
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Williams v. General Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999). In fact, the Sixth Circuit
reversed the district court in Williams after it “divided and categorized the reported incidents,
divorcing them from context and depriving them of their full force.” Id. at 562. In Williams the
plaintiff recounted fifteen specific incidents of harassment over the course of a year. Williams,
187 F.3d at 559.
In this case, Plaintiff describes the harassment by Lea, Brewer, and Savage as “repetitive
and continuous,” starting with Savage’s comment in September of 2009 and ending, presumably,
when Defendant terminated his employment in October of 2010. Even though Plaintiff describes
the situations as numerous, he only actually describes four incidents of harassment during that
time period.3 The fact that Plaintiff fails to describe additional incidents does not necessarily
preclude his ability to defeat summary judgment. Abeita v. TransAmerica Mailings, Inc., 159
F.3d 246, 252 (6th Cir. 1998) (“Plaintiff's inability to recount any more specific instances goes to
the weight of her testimony, a matter for the finder of facts.”). In Abeita the Sixth Circuit
reversed the district court’s finding that the sexual harassment was not pervasive because “the
District Court’s analysis omit[ted] the plaintiff’s claim that [her supervisor’s] sexual comments
were ‘commonplace,’ ‘ongoing,’ and ‘continuing.’” Id. Unlike the facts of the present case, the
person creating the hostile work environment for the plaintiff in Abieta was not only her
supervisor but also a person who she interacted with on a daily basis. Here, Savage, Brewer, and
Lea were not Plaintiff’s supervisors and they did not regularly work at Earle C.
In fact,
Defendant identifies only eight specific instances in which Savage was even present at Earle C.
(Def. Mem. in Supp. of its Mot. for Summ. J., DN 30-1, at 4-5).
3
Those incidents include Savage’s commenting on the picture of Plaintiff’s family, Lea calling Plaintiff a “dog,”
Johnson making a comment about the “white women around here,” and Lea rubbing Cole’s arm and accusing him
of having an affair.
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Notwithstanding Plaintiff’s argument that the harassment was continuous, the Court
believes the facts of this case more closely resemble those found in Burnett. As previously
discussed, Burnett involved three incidents of alleged harassment over the course of six months.
Burnett, 203 F.3d at 985. In distinguishing the facts of Burnett from those of Abieta, the Sixth
Circuit found it particularly significant that the plaintiff did not allege continuous or ongoing
harassment, unlike the plaintiff in Abieta. Id. at 984. Because the plaintiff only alleged those
three incidents, the court concluded that the environment was less pervasive than the one found
in Abieta. Id. By the same token, even though the Plaintiff in this case alleges repetitive
harassment, the facts of this case do not support the possibility of daily harassment by a
supervisor as found in Abieta. As a result, this case is more in line with Burnett.
While there is no precise number of incidents before a work environment may be
considered pervasively hostile, the Court does not believe the number of alleged instances
described by Plaintiff rises to the level found in Williams. As such, the Court does not find an
objectively pervasive hostile work environment, especially considering how brief each
interaction appeared to be and the sporadic nature of those interactions.
Because the Court finds that the Plaintiff has failed to show that a hostile work
environment existed under the fourth prong of a prima facie case, there is no reason to discuss
employer liability.
Defendant’s motion for summary judgment on Plaintiff’s hostile work
environment claim based on race and sex is GRANTED.
B. Retaliation
Plaintiff alleges that Defendant retaliated against him for making complaints of sexual
and racial harassment. Based on Plaintiff’s response to Defendant’s summary judgment motion,
he appears to allege that MTC engaged in two adverse employment actions against him.
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Specifically, he argues that he was denied a merit increase by Johnson shortly after making a
complaint about Savage, and he also contends that Defendant terminated him because of his
complaints of harassment by Brewer, Lea, and Savage. Defendant responds by arguing that
Plaintiff cannot establish a prima facie case for retaliation as no causal connection can be shown
between his complaints and the adverse employment actions, but even if he could show a causal
relationship, Cole fails to refute Defendant’s legitimate, non-discriminatory reason for taking
such actions.
1. Prima Facie Case
In order for Plaintiff to establish a prima facie case for retaliation, he faces the initial
burden of showing that:
(1) the plaintiff engaged in activity protected under Title VII; (2) plaintiff's
exercise of her protected rights was known to defendant; (3) an adverse
employment action was subsequently taken against the employee or the employee
was subjected to severe or pervasive retaliatory harassment by a supervisor; and
(4) there was a causal connection between the protected activity and the adverse
employment action or harassment.
Fuhr v. Hazel Park School Dist., 710 F.3d 668, 674 (6th Cir. 2013) (citation omitted). It should
be noted that “[t]he burden of establishing a prima facie case in a retaliation action is not
onerous, but one easily met.” Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 523 (6th Cir.
2008) (citation and internal quotation marks omitted). If the plaintiff establishes a prima facie
case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). If the employer carries that burden, “the burden of production returns to the plaintiff to
demonstrate by a preponderance of the evidence that the proffered reason was a mere pretext for
discrimination.” Fuhr, 710 F.3d at 675 (citing Abbott v. Crown Motor Co., 348 F.3d 537, 542
(6th Cir. 2003)).
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Defendant initially contests the second element of Plaintiff’s prima facie case for
retaliation because the ultimate decision-maker, John Pedersen, lacked knowledge of any of
Plaintiff’s complaints. Moreover, Defendant argues that neither Johnson nor Hall received any
written complaints from the Plaintiff and that both denied any knowledge of the complaints.
However, the testimony of Cooper and Hagedorn is to the contrary. They remember Cole
making reports of harassment and Hagedorn believes she completed a form and reported it to
upper management. Construing the facts in the light most favorable to the party opposing
summary judgment, see, e.g., Wharton v. Gorman-Rupp Co., 309 Fed.Appx. 990, 995 (6th Cir.
2009), the Court finds that the Plaintiff’s assertions of fact are sufficient to satisfy the second
prong of the prima facie case.
The Defendant next argues that Plaintiff fails to establish a causal connection between his
complaints and the subsequent adverse employment action because “Cole’s discharge followed a
separate, intervening event: MTC’s investigation of Center records, practices, and interviews of
staff and students, which uncovered extensive mismanagement of Earle C . . . .” (Def. Mem. in
Supp. of its Mot. for Summ. J., DN 30-1, at 17). In response, Plaintiff relies on both the
temporal proximity of his complaints and a statement from Brewer saying that he would lose his
job if he kept making complaints. “Proof of temporal proximity between the protected activity
and the adverse employment action, ‘coupled with other indicia of retaliatory conduct,’ may give
rise to a finding of a causal connection.” Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007)
(quoting Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 737 (6th Cir. 2006)). Plaintiff
describes a three-month timeframe between his complaints and Johnson’s denial of his merit
increase. Additionally, Plaintiff believes that about five months lapsed between his complaint to
Hall and the investigation that led to his termination. For the issue of temporal proximity, both
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parties identify cases that support their respective positions. Singfield v. Akron Metro. Hous.
Auth., 389 F.3d 555, 563 (6th Cir. 2004) (holding three months between making a complaint and
plaintiff’s termination sufficient to establish a causal connection); Dollar Gen. Partners v.
Upchurch, 214 S.W.3d 910, 915 (Ky. 2006) (finding five months sufficient). But see Hafford v.
Seidner, 183 F.3d 506, 515 (6th Cir. 1999) (holding two to five months insufficient). However,
Plaintiff has no other indicia of retaliatory conduct to support a causal link between his
complaint and the denial of a merit-based salary increase.
Even if the three-month gap
sufficiently demonstrated a causal link, Plaintiff has failed to show that the Defendant’s
legitimate, non-discriminatory reason for not giving the merit increase is a pretext for retaliation.
Johnson told Cooper that Cole started at a higher salary than MTC intended to originally pay
him, and as such, she would not approve a merit increase. Plaintiff does not offer any pretextual
argument to rebut Defendant’s legitimate, non-discriminatory reason concerning the denial of the
merit increase. As a result, the Court will not examine this theory of retaliation further. In
contrast, the five-month proximity between Plaintiff’s complaint and his termination along with
the statement from Brewer provides enough facts to show a causal relationship for a prima facie
case.
2. Legitimate Reason and Pretext
Once the Plaintiff has established a prima facie case, the burden shifts to Defendant to
articulate a legitimate, non-discriminatory reason for the adverse employment action.
The
Defendant has done so in this case. In addition to the Notice of Caution provided to Plaintiff,
Defendant lists other reasons for Plaintiff’s termination, including having others do his work for
him, disappearing with subordinates for an extended period of time, failing to follow corporate
policies.
Therefore, under the burden-shifting framework, Plaintiff must demonstrate that
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Defendant’s reason for terminating him was pretextual. Harris v. Giant Eagle, Inc., 133
Fed.Appx. 288, 294 (6th Cir. 2005). The Sixth Circuit has described this process as follows:
A plaintiff can refute the legitimate, nondiscriminatory reason articulated by an
employer to justify an adverse employment action by showing that the proffered
reason (1) has no basis in fact, (2) did not actually motivate the defendant's
challenged conduct, or (3) was insufficient to warrant the challenged conduct.
Regardless of which option is used, the plaintiff retains the ultimate burden of
producing sufficient evidence from which the jury could reasonably reject the
defendants' explanation and infer that the defendants intentionally discriminated
against him.
Id. (quoting Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003)).
Plaintiff first contends that Defendant’s proffered reasons for terminating Plaintiff should
be limited to the information provided in the Notice of Caution.
Defendant responds by
explaining that the Notice of Caution “only summarized some widespread mismanagement
uncovered by the investigation into Earle C.” (Def. Reply in Supp. of Mot. for Summ. J., DN 35,
at 13). Although Plaintiff cites no authority to limit the inquiry in such a manner, the Court finds
it unnecessary to consider the other reasons mentioned by Defendant because, in the Court’s
opinion, Plaintiff has failed to show that reasons contained in the Notice of Caution are
pretextual.
Plaintiff attacks the Notice of Caution because “[t]he lion’s share of the Notice of
Caution is dedicated to listing of student disciplinary actions at the Earle C. Center with an
allegation that the failure to separate those students from the Job Corps Program violated the
Zero Tolerance (“ZT”) policy of MTC.” (Resp. to Def.’s Mot. for Summ. J., DN 33, at 24).
While Plaintiff thoroughly analyzes why this particular reason lacks a factual basis, he fails to
address any of the other reasons listed in the Notice of Caution. Moreover, “[w]hen an employer
reasonably and honestly relies on particularized facts in making an employment decision, it is
entitled to summary judgment on pretext even if its conclusion is later shown to be ‘mistaken,
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foolish, trivial, or baseless.’” Chen v. Dow Chem. Co., 580 F.3d 394, 401 (6th Cir. 2009)
(citation omitted). There is no evidence to suggest that John Pedersen, the ultimate decision
maker, had reason to doubt the facts alleged concerning Cole’s failure to properly discipline
students under the Zero Tolerance. In addition, Plaintiff offers no arguments concerning the
tampering with certain forms and problems regarding interactions with staff.
Next, Plaintiff attempts to demonstrate that Defendant diverged from its normal
disciplinary system, which he believes provides evidence of a pretextual motive. Plaintiff relies
on Cooper who stated that he could not recall a time in which Earle C. terminated an individual
after a first offense. “Evidence that the progressive-discipline policy asserted as a rationale for
an employee's termination was not uniformly applied is evidence of pretext.”
Lamer v.
Metaldyne Co. LLC, 240 Fed.Appx. 22, 33 (6th Cir. 2007) (citation omitted). However, Plaintiff
has not provided any evidence that his termination did not conform to Defendant’s progressive
discipline policy. Cooper’s knowledge about the lack of terminations for first offenses only goes
to what happened at Earle C. with previous private contractors that operated the facility, not the
practices of the Defendant. Instead, both Savage and Johnson testified that if infractions were
severe enough, an employee could be terminated on a first offense. Plaintiff was not the only
high ranking employee terminated after the lengthy investigation which revealed a multitude of
institutional problems. The Plaintiff has not shown that his actions were not egregious enough to
warrant termination.
Finally, Plaintiff contends that the composition of the investigatory team that
recommended his termination suggests a pretextual motive.
However, none of the three
individuals he listed as harboring a retaliatory motive, participated in the ultimate decision to
terminate him. The make-up of the investigatory team would be more problematic if Plaintiff
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could show that their findings were incorrect. At most, all Plaintiff does is argue that he was not
to blame for all the problems uncovered. The parties do not dispute that Pedersen made the
ultimate decision to terminate the Plaintiff. “This circuit has held that a statement by an
intermediate level management official is not indicative of discrimination when the ultimate
decision to discharge is made by an upper level official.” McDonald v. Union Camp Corp., 898
F.2d 1155, 1161 (6th Cir. 1990). Plaintiff fails to offer any evidence that Pedersen had any
retaliatory motive when deciding to terminate him.
For the following reasons, Defendant’s motion to summary judgment on Plaintiff’s
retaliation claim is GRANTED.
C. Unlawful Termination
Plaintiff asserts that Defendant unlawfully terminated him in violation of Kentucky’s
common law exception to the “terminable-at-will” doctrine. Specifically, Plaintiff argues that
Defendant terminated him for adhering to the zero tolerance drug policy pursuant to 29 U.S.C. §
2892 after being told to ignore the policy by Lonnie Hall and Derrick Dulfin. Defendant argues
that even if Plaintiff’s factual assertions are taken as true, he fails to establish the elements, as a
matter of law, for a claim based on unlawful termination.
Kentucky law still maintains that an employee is “terminable-at-will,” but it has adopted
“‘a narrow public policy exception . . .’ when the firing of an employee undermine[s] a ‘most
important public policy.’” Hill v. Kentucky Lottery Corp., 327 S.W.3d 412, 420 (Ky. 2010)
(quoting Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730, 734 (Ky. 1984)). In order to
prove wrongful discharge, a plaintiff must show that his termination was the result of either (1)
failing or refusing to violate the law, or (2) exercising “a right conferred by well-established
legislative enactment.” Grzyb v. Evans, 700 S.W.2d 399, 402 (Ky. 1985) (citation and internal
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quotation marks omitted).
The tort of wrongful discharge is only applicable if (1) “[t]he
discharge [is] contrary to a fundamental and well-defined public policy as evidenced by existing
law,” or (2) the policy is “evidenced by a constitutional or statutory provision.” Hill, 327 S.W.3d
at 421 (citation omitted). "The decision of whether the public policy asserted meets these criteria
is a question of law for the court to decide, not a question of fact." Id.
The Court finds that there is no need to explore the merits of Plaintiff’s claim based on
unlawful termination. Plaintiff relies entirely on federal statutes to support his claim, specifically
29 U.S.C. § 2892. Both federal and state courts in Kentucky have consistently held that the
public policy exception only applies to the laws of Kentucky. Fleming v. Flaherty & Collins,
Inc., 2013 WL 3357977, at *4 (6th Cir. July 3, 2013) (finding that refusing to break a federal law
fails to support a claim for wrongful termination in Kentucky); Goins v. Interstate Blood Bank,
Inc., 2005 WL 1653611, at *4 (W.D. Ky. July 12, 2005) (“[F]ederal regulations cannot form the
basis of a wrongful discharge claim in violation of public policy in Kentucky.”); Shrout v. The
TFE Group, 161 S.W.3d 351, 355 (Ky. Ct. App. 2005) (“[T]he underpinning of a wrongful
discharge, extends a right of action only for the violation of a Kentucky statute or a constitutional
provision. The protection does not extend to the violation of a federal regulation.”). The Court
finds no reason to depart from these prior determinations.
IV. CONCLUSION
For the foregoing reasons, Defendant Management & Training Corporation’s Motion for
Summary Judgment [DN 30] is GRANTED.
cc: counsel of record
October 31, 2013
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