Gilmore v. Land O'Frost, Inc. et al

Filing 40

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 10/10/2018 granting in part and denying in part 35 Motion for Summary Judgment. Defendants' Motion for Summary Judgment is GRANTED on Counts III and VIII and DENIED on Count II. cc: Counsel(JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO: 4:16-CV-71-JHM
QUINCY GILMORE

PLAINTIFF

V.
LAND O’FROST, INC., et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ Renewed Motion for Summary Judgment
[DN 35]. Fully briefed, this matter is ripe for decision. For the following reasons, the
Defendants’ Renewed Motion for Summary Judgment is GRANTED IN PART and DENIED
IN PART.
I. BACKGROUND
Plaintiff Quincy Gilmore filed this action after he was terminated from his position at
Land O’Frost, Inc., a meat processing company in Madisonville, Kentucky. Gilmore claims that
during his employment at Land O’Frost, he was regularly disciplined by management for
behaviors that were acceptable for his white coworkers. Within his Complaint, Gilmore alleges
that management was looking for any reason to get rid of him and that he was eventually fired in
retaliation for making complaints about Land O’Frost to the Kentucky Commission on Human
Rights (“KCHR”) and the Department of Labor. Defendants claim that Gilmore was fired after
an investigation led management to believe that he was one of the people responsible for stealing
copper wiring from the Land O’Frost facility.
Gilmore filed this lawsuit against Land O’Frost and certain members of Land O’Frost
management, LaSenna Powell, James Texas, and James Feeney. Previously, Defendants brought
a Motion for Summary Judgment, asking that all claims against them be dismissed. At that time,

the Court dismissed Gilmore’s claims of discrimination based on race, interference and
retaliation under the Family and Medical Leave Act, promissory estoppel, and defamation, but
did not find adequate grounds for dismissal of Gilmore’s wage and hour claim in Count VIII. In
addition, Counts II and III remained because Defendants did not discuss a basis for dismissal of
his claims of hostile work environment or retaliation within his first Motion for Summary
Judgment. Now, Defendants renew their request for the Court to dismiss the remaining claims
against them.
II. STANDARD OF REVIEW
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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

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of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 252.
III. DISCUSSION
1. Hostile Work Environment (Count II)
In Count II of the Complaint, Gilmore alleges that Defendants subjected him to
unwelcome harassment which created an “intimidating, hostile, or offensive work environment”
in violation of the Kentucky Civil Rights Act (“KCRA”). (Compl. ¶ 129.)

Hostile work

environment claims under the KCRA are analyzed in the same manner as federal claims under
Title VII. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 793 (6th Cir. 2000). To
establish a prima facie case of hostile work environment, Gilmore must establish the following
five elements: (1) he was a member of a protected class; (2) he was subjected to unwelcome
harassment; (3) the harassment was based on his protected status; (4) the harassment was
sufficiently severe or pervasive to affect a term, condition, or privilege of employment; and (5)
his employer knew or should have known about the harassing conduct but failed to take
corrective measures. Fullen v. City of Columbus, 514 Fed. App’x 601, 606−07 (6th Cir. 2013).
Importantly, “[s]o long as the environment would be reasonably perceived, and is perceived, as
hostile or abusive, there is no need for it also to be psychologically injurious.” Harris v. Forklift
Sys., 510 U.S. 17, 22 (1993). In deciding whether an environment is hostile or abusive, the
Supreme Court instructs that courts should analyze the totality of the circumstances, including
(1) the frequency of discriminatory conduct; (2) its severity; (3) whether it is physically
threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably
interferes with an employee’s work performance. Id. at 23.

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Gilmore claims that he has proven the elements necessary for a hostile work environment
action by showing harassment “in the form of comments made by upper-management, related to
suspicions about him and being told that he complains too often, and being reprimanded for
things that, when done by his Caucasian coworkers, were not reprimanded.” (Pl.’s Resp. to
Defs.’ Renewed Mot. for Summ. J. [DN 38] at 6.) Defendants argue that they are entitled to
summary judgment on Gilmore’s hostile work environment claim because “Gilmore’s argument
that he was disciplined different than non-minority employees is premised on nothing more than
unsupported allegations.” (Defs.’ Supp. Mem. of Law in Support of Summ. J. [DN 35-1] at 9.)
It is true that Gilmore has no evidence that he was treated differently than his Caucasian
coworkers other than his own testimony from his deposition and Verified Complaint. However,
as this motion is on summary judgment by the Defendants, the Court must view all the evidence
in a light most favorable to Gilmore. This means the Court must accept Gilmore’s allegations
that he was regularly punished for behaviors that were acceptable for his white coworkers.
Further, the Court will accept that Gilmore’s supervisor, James Texas, singled him out and told
his white coworker that “he needed to watch Mr. Gilmore and the other African American
employee Alex Powell when they were together.” (Compl. ¶ 81.) Texas’ instructions that
coworkers should watch Gilmore were humiliating and threatened the security of Gilmore’s job.
Assuming all the allegations in Gilmore’s deposition and Verified Complaint to be true, a
reasonable jury may find that Defendants created a hostile work environment, in violation of the
KCRA. For this reason, Defendants’ Renewed Motion for Summary Judgment is DENIED
regarding Count II for hostile work environment.

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2. Retaliation (Count III)
The Court dismisses Gilmore’s claim of retaliation in Count III. Gilmore alleges that
Defendants committed retaliation under the KCRA when they fired him for reporting Land
O’Frost to the KCHR and the Department of Labor. “Retaliation claims under the KCRA are
evaluated under the same standard as we use to evaluate federal Title VII claims . . . using the
burden-shifting framework of McDonell Douglass Corp. v. Green, 411 U.S. 792, 801−05
(1973).” Montell v. Diversified Clinical Servs., 757 F.3d 497, 504 (6th Cir. 2014). Once the
plaintiff has established a prima facie case for retaliation, “the burden of production shifts to the
defendant to rebut the presumption by articulating some legitimate, nondiscriminatory reason for
its action.”

Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 674 (6th Cir. 2013) (internal

punctuation omitted). “If a defendant successfully produces such a legitimate reason, then 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.” Id. at 675. (citing Abbott v.
Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003)).
In previously dismissing Gilmore’s claim of discrimination based on race, this Court
determined that Defendants provided a sufficient nondiscriminatory reason for firing Gilmore
(Gilmore was suspected of stealing copper wiring from the Land O’Frost facility). Because
Gilmore was unable to show that Defendants’ proffered nondiscriminatory basis for firing
Gilmore was pretext for discrimination, his discrimination claim was dismissed. Likewise,
Defendants’ suspicions that Gilmore was stealing serves as a nondiscriminatory basis for his
allegedly retaliatory termination and Gilmore has failed to show this reason was pretext for
discrimination.

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Gilmore now attempts to claims that the adverse employment action was not his
termination but rather, was a “material modification in duties and loss of prestige.” (Pl.’s Resp.
at 5.) Quoting Brooks v. Lexington-Fayette Urban County Hous. Auth., Gilmore suggests that
these allegations “may rise to the level of adverse action.” 132 S.W.3d 790, 803 (Ky. 2004).
Yet, the court in Brooks made it clear that mere modification of duties and loss of prestige are
not enough to state a claim for retaliation.
A materially adverse change in the terms and conditions of employment, must be
more disruptive than a mere inconvenience or an alteration of job responsibilities.
A materially adverse change might be indicated by 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.
Id. at 802. In this case, Gilmore has offered no evidence of any materially adverse changes in
the terms and conditions of his employment at Land O’Frost, other than his termination.
Therefore, summary judgment is GRANTED to Defendants on Gilmore’s claim of retaliation in
Count III.
3. Wage and Hour (Count VIII)
Finally, in Count VIII, Gilmore claims that he is entitled to relief as Defendants failed to
pay him wages and overtime when he was on call during lunch breaks. In July 2015, Gilmore
and Land O’Frost entered into a settlement agreement that discharged the company from liability
for overtime payments from July 16, 2011 through July 25, 2015. Gilmore now claims that
Defendants owe him additional overtime wages because “from the 25th of July 2015 until he was
fired there [were] several periods of time that Mr. Gilmore was still required to work during
lunch and break periods and is entitled to pay for those specific periods of time.” (Compl. ¶
110.)

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Defendants argue that they are entitled to summary judgment on this wage and hour
claim because Gilmore admitted that he was not owed any further overtime payments. Both in
the Renewed Motion for Summary Judgment and the Reply, Defendants direct the Court to the
following portion of Gilmore’s deposition where Gilmore discusses the form he signed for
Receipt for Payment of Back Wages, which is Exhibit G of Gilmore’s Complaint:
Q:
A:
Q:
A:
Q:

A:
Q:
A:
Q:
A:
Q:
A:

Q:

A:

All right. So you signed this form.
Yes.
And you signed it January 27, 2016.
Yes.
Just about your signature, it says, “Notice to Employee” and indicates
(reads from document) your acceptance of these back wages as marked for
the period indicated above means you are accepting the amount as a
satisfactory settlement and are releasing this employer from further
liability from your claim as indicated above. Do you see that?
Yes.
So when you signed this, you’re saying this is all the back pay that was
owed to you.
Yes.
You weren’t owed another nickel.
Yes.
You agree with that.
Yeah, he calculated how many days I was on break and that’s what he
came up with. By the time I signed this, I was no longer employed, no
longer had any hours worked for them. This is the last check I got
concerning Land O’Frost.
All right. So, as of the time you signed this and got this check, Land
O’Frost did not owe you any more wages as it relates to loss of break or
loss of lunch time or anything else.
That’s a fair assessment, I suppose.

(Gilmore Deposition [DN 25] at 35−36).
Since then, Gilmore’s counsel has attempted to backpedal from the statements made at
the deposition, stating, “The plaintiff has come to realize, upon further review, that he is entitled
to this compensation.”

(Pl.’s Resp. at 3.) Besides the fact that this statement was made in a

brief – which is not considered part of the evidentiary record – Gilmore has failed to come
forward with any specific facts that would support his claim that additional compensation is due.

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Because Gilmore himself stated definitively that he was not owed any back wages as of January
27, 2016, there is no genuine issue of material fact and Defendants are entitled to judgment as a
matter of law on Gilmore’s wage and hour claim.

Summary judgment is GRANTED to

Defendants on Count VIII.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Defendants’ Motion
for Summary Judgment is GRANTED on Counts III and VIII and DENIED on Count II.

October 10, 2018

cc: counsel of record

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