Moss v. Pennyrile Rural Electric Cooperative

Filing 47

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 3/19/2014; re MOTION for Summary Judgment filed by Pennyrile Rural Electric Cooperative ; an appropriate order shall issuecc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 5:13-CV-00212

BOBBY MOSS

Plaintiff,

v.
PENNYRILE RURAL ELECTRIC COOPERATIVE

Defendant.

MEMORANDUM OPINION
This matter is before the Court upon the Motion for Summary Judgment of Defendant
Pennyrile Rural Electric Cooperative (“Pennyrile”), (Docket No. 33). Pennyrile has also
submitted a Motion for Judgment on the Pleadings, (Docket No. 31). Moss has responded,
(Docket No. 39), and Pennyrile has replied, (Docket No. 46). Fully briefed, this matter is now
ripe for adjudication. For the following reasons, Pennyrile’s Motion for Judgment on the
Pleadings will be GRANTED.
Factual Background
Moss was hired as a warehouseman in Pennyrile’s Russellville office on April 30, 1990;
he worked for the company until his termination on September 16, 2011. (Docket No. 1 at 2.)
Moss filed an EEOC complaint alleging violation of the Americans with Disabilities Act,
retaliation, and disability on December 5, 2011. The EEOC issued a Right to Sue letter on
August 22, 2012. Moss now alleges that Pennyrile transferred and terminated him in violation of
the Americans with Disabilities Act.1 (Docket No. 1 at 7-10.)

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Moss’s Complaint also alleged wrongful termination and intentional infliction of emotional distress. However,
Moss failed to address these counts in opposition to Pennyrile’s motion for summary judgment. Because Moss did
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Moss claims that during his twenty-one years of employment at Pennyrile, he was
reprimanded on only one occasion before being diagnosed with a non-malignant brain tumor in
August 2008. (Docket No. 1 at 2.) Moss alleges that his work life deteriorated dramatically
upon his diagnosis, as Pennyrile began to treat him with antagonism. After three months of sick
leave, Moss underwent surgery to remove the tumor on October 2008. (Docket No. 1 at 3.) He
returned to work on November 26, 2008. (Docket No. 1 at 3.) On December 26, 2009, he
suffered a grand mal seizure. He returned to work on January 4, 2010, but was unable to operate
a vehicle for three months following his seizure. (Docket No. 1 at 3.) Although his job
description required a Commercial Driver’s License (“CDL”) for which he was no longer
eligible, he was permitted to return to work with no changes in pay or benefits.
Moss points to various incidents that he alleges amount to violation of his rights. On
March 5, 2010, he was reprimanded for allegedly revealing the salary of a Pennyrile engineer in
violation of the company policies, which demand confidentiality regarding employee salaries.
(Docket No. 1 at 3.) He was suspended for three days without pay and was written up for
breaking company policy. (Docket No. 1 at 4.)
Upon returning to work on March 11, 2010, Moss was disallowed from entering the
lineman’s quarters and from attending safety meetings. (Docket No. 1 at 3.) Moss also notes
that he alone was allowed to enter his office or use his computer, to the exclusion of other
employees. (Docket No. 1 at 4.)
In May 2010, Todd Adler, a Pennyrile engineer, entered Moss’s office and used his
computer. (Docket No. 1 at 4.) The next day, Mark Wilkins, the Russellville district office

not respond to the summary judgment motion on these claims, they will be deemed abandoned. See Graham v. Am.
Cyanmid Co., 350 F.3d 496, 506 (6th Cir. 2003).
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manager, told Moss that if he dropped his complaint that Adler had used his computer, no action
would be taken against him. Moss then abandoned his complaint. (Docket No. 1 at 4.)
On May 10, 2010, Moss learned that he was again being written up for “complaining
about petty things”; as a result, he was suspended for five days without pay and cautioned to let
Pennyrile’s management oversee the warehouse’s day-to-day operations and personnel issues.
(Docket No. 1 at 4.)
Moss later informed supervisors that he was occasionally unable to release the parking
brake on the warehouse forklift because other employees were readjusting it. (Docket No. 1 at
4.)

Moss alleges that Eston Glover, President and CEO of Pennyrile, mocked his inability to

set the forklift brake. (Docket No. 1 at 5.) When Moss explained that his brain surgery left him
weak, Glover allegedly told Moss that he would be terminated if he submitted any additional
complaints. (Docket No. 1 at 5.) Moss alleges that he was “retaliated against, mocked, and
harassed in regard to his inability to release the forklift brake.” (Docket No. 1 at 5.)
Moss encountered numerous personal issues with his coworkers, many of them minor;
Pennyrile’s impression of Moss was that he was an “agitator” who “like[d] to watch and report
and cause trouble for other employees,” peeking through windows doors to watch his coworkers.
(Docket No. 32-7 at 5.) For example, on May 13, 2010, as Moss was attempting to leave the
Pennyrile premises through the company’s traffic gate, two Pennyrile employees—James
Dossett and Phillip Adler—were apparently blocking the gates with their vehicles as they
conversed with each other. As a result, Moss and those in the traffic line behind him were
unable to exit the premises. Moss called Wilkins, reporting that although those involved had
said nothing to him, he felt threatened and wanted to contact the local sheriff’s office. The

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situation was resolved without the involvement of law enforcement when Dossett moved his
vehicle a short time later. (Docket No. 1 at 6.)
Largely as a result of Moss’s repeated complaints and reports, on May 20, 2011, he was
relocated to Pennyrile’s Hopkinsville office. (Docket No. 1 at 6.) Pennyrile explains that this
move resulted from Moss’s ongoing personal issues with his coworkers and was designed to
“eliminate the Russellville men from Bobby’s worksite, allowing his fears to be removed.”
(Docket No 32-2, Exh. 21.)

Additionally, the Hopkinsville warehouse was undergoing a

reorganization and needed additional men to expedite the process. (Docket No 32-2, Exh. 21.)
However, when Moss reported to work at the Hopkinsville warehouse, he immediately refused to
perform certain tasks that other warehousemen performed, including mopping the floor and
mowing the grass. (Docket No. 32-1 at 16.)
When the Hopkinsville reorganization was complete, Pennyrile management opted to
transfer Moss to Cadiz rather than returning him to Russellville. Pennyrile indicates that he was
transferred in an effort to find appropriate work for him, not for punitive reasons; the company
notes that Moss suffered no reduction in pay or benefits. (Docket No. 32-1 at 18.) Moss’s
complaints resumed upon beginning his tenure at Cadiz: he complained of spiders, refused to
move heavy objects, and said that his medication left him drowsy and unable to work. (Docket
No. 32-2, Exh. 25.) Additionally, Moss allegedly made threatening statements resulting from his
conversation with Glover regarding the forklift over a year earlier, warning that “[Glover] is
going to pay for that.”

(Docket No. 32-7 at 16.)

He also allegedly threatened to have

Pennyrile’s entire Board of Directors replaced. (Docket No. 32-7 at 16.)

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During a meeting on September 16, 2011, Pennyrile management initiated a meeting to
review Moss’s work history, inquire into his repeated complaints, and clarify the threats to
Glover and the Board of Directors. (Docket No. 32-1 at 19.) When Moss refused to provide
satisfactory answers, he was given the option to either resign or be terminated. The meeting
ended in Moss’s termination. (Docket No. 32-1 at 20.) Glover testified that although he did not
begin the meeting with the intention of firing Moss, “when you got a person there that you have
got probably fifty people that have stated things and he denies them, I made a decision in the
meeting that he could either retire or he could find another job.” (Docket No. 32-6 at 12.)
On January 18, 2012, Moss signed a perfected charge of discrimination with the EEOC;
Pennyrile received the perfected charge on January 26, 2012. In the perfected charge, Moss
explains his grounds for seeking recourse: “I believe I have been discriminated against by being
harassed; held to different terms and conditions of employment; reassigned and retaliated against
for complaining against the reassignment, because of my disability and/or regarded as disabled,
in violation of the Americans with Disabilities Act of 1990.” (Docket No. 33, Exh. A.) He
alleged that the earliest incidence of discrimination occurred on March 5, 2010. (Docket No. 33,
Exh. A.) The EEOC issued Moss a right to sue letter on August 22, 2012. (Docket No. 33, Exh.
B.)
Moss now claims that he was discriminated against, harassed, and retaliated against
because of his disability. (Docket No .1 at 6.) He seeks lost wages, lost benefits, and damages
for mental pain and suffering. (Docket No. 1 at 7.)

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Legal Standard
Summary judgment is appropriate where the pleadings, the discovery and disclosure
materials on file, and any affidavits show “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). In determining
whether summary judgment is appropriate, a court must resolve all ambiguities and draw all
reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material
fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether
the party bearing the burden of proof has presented a jury question as to each element in the case.
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere
scintilla of evidence in support of his position; he must present evidence on which the trier of
fact could reasonably find for him. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment:
“[T]he mere existence of a colorable factual dispute will not defeat a properly supported motion
for summary judgment. A genuine dispute between the parties on an issue of material fact must
exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp.,
681 F.3d 312 (6th Cir. 2012).
Discussion
When a plaintiff relies solely upon circumstantial evidence of disparate treatment, the
McDonnell Douglas burden-shifting framework applies at the summary judgment phase. Macy
v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 363 (6th Cir. 2007). The framework involves
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three stages of proof. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). First,
the plaintiff must establish a prima facie case of discrimination. Macy, 484 F.3d at 364 (citing
Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996)). The burden next shifts to
the defendant, who must show a “legitimate, nondiscriminatory reason for its action.” Id. If the
defendant satisfies this requirement, the burden shifts back to the plaintiff to demonstrate that the
defendant’s reason is “actually a pretext for unlawful discrimination.” Id.
Summary judgment is appropriate only if there is insufficient evidence to create a
genuine dispute at each stage of the McDonnell Douglas inquiry. Macy, 484 F.3d at 364 (citing
Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000). Although the burdens
of production shift, “[t]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Tex Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
I.

Moss’s status as “disabled”
The ADA prohibits employers from discriminating against employees based on their

disabilities if they are otherwise qualified to perform their jobs. Howard v. Magoffin County Bd.
of Educ., 830 F. Supp. 2d. 308, 314 (E.D. Ky. 2011). To establish a prima facie case, Moss must
show that (1) he is a member of a protected class, i.e., that he is disabled; (2) he is otherwise
qualified for the position, with or without reasonable accommodation; (3) he suffered an adverse
employment action; (4) the employer knew or had reason to know of his disability; and (5) the
employer either replaced him or left the position open while seeking other applicants. Whitfield
v. Tennessee, 639 F.3d 253, 258-59 (6th Cir. 2011) (quoting Macy, 484 F.3d at 365. Pennyrile is
entitled to summary judgment on Moss’s ADA claim, as he cannot establish a prima facie case
of disability discrimination.
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A threshold question is whether Moss is disabled within the meaning of the ADA. To be
“disabled” under the ADA, an individual must (1) have a physical or mental impairment that
“substantially limits” him or her in at least one “major life activity,” (2) have record of such an
impairment, or (3) be regarded as having such an impairment. See 42 U.S.C. § 12102(2). “There
is no blanket rule for determining when a claimant is disabled. ‘Congress intended the existence
of a disability to be determined in . . . a case-by-case manner.’” Mahon v. Crowell, 295 F.3d
585, 589 (6th Cir. 2002) (quoting Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184,
185 (2002)).
Moss alleges that he suffered a disability given his lack of strength, memory loss, and
inability to obtain a CDL. (Docket No. 39 at 16.) He asserts that these circumstances constituted
a disability. (Docket No. 39 at 16.) However, Moss offers no evidence that his condition
substantially limits a major life activity that would render him disabled under the ADA’s
definition of the term. He asserts no physical or mental impairment that substantially limits a
major life activity. Instead, his own admission and the record as a whole reflect the fact that
Moss was not disabled within the meaning of the ADA. At deposition, Moss testified:
Q:

Okay, you’re not contending that – that you had an
impairment or a disability while you were at work at
Pennyrile, are you, based on your answers to
interrogatories?

A:

I mean, -- nope.

His answers to interrogatories echoed this theme:
24.

If you claim you are now suffering from a disability or
impairment, please state the nature of such.

RESPONSE: None.

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Moreover, Moss was not under the care of a physician for the treatment of any injuries or
conditions he referenced. (See Docket No. 33-6 at 7.) Although he may have been physically
impaired, “[t]emporary, non-chronic impairments of short duration, with little or no long term
impact, are usually not disabilities.” 29 C.F.R. Pt. 1360 App. Moss’s work restrictions were in
place only for the first three months following his return after surgery; after this time, he was
released to work without restrictions. (Docket No. 33-8 at 7.) Consequently, there is no
evidence that Moss suffered from an impairment that substantially limited a major life activity so
as to render him disabled within the ADA’s parameters.
Likewise, Moss has failed to produce evidence that he has a record of an impairment.
See 29 C.F.R. § 1630.2(k) (stating that a person is disabled by having a record of an impairment
when he “has a history of, or has been misclassified as having, a mental or physical impairment
that substantially limits one or more major life activities.”). As an initial matter, the Court notes
that Moss did not properly assert a record of disability theory in the Perfected Charge he filed
with the EEOC. “Federal courts do not have subject matter jurisdiction of Title VII claims
unless the claimant explicitly files the claim in an EEOC charge or the claim can reasonably be
expected to grow out of the EEOC charge.” Abeita v. TransAmerica Mailings, Inc., 159 F.3d
246, 254 (6th Cir. 1998). This regulatory requirement of precision facilitates EEOC’s “attempt
to obtain voluntary compliance with the law” and “notif[ies] potential defendants of the nature of
plaintiff’s claims and provide[s] them the opportunity to settle the claims.” Id. Although a
complaint need not use “the exact wording which might be required in a judicial pleading,”
plaintiffs are not “excused from filing charges on a particular discrimination claim before suing
in a federal court.” Davis v. Sodexho, 157 F.3d 460, 463 (6th Cir. 1998).When a claim is not

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included in the EEOC charge, it generally cannot be raised in a lawsuit. Younis v. Pinnacle
Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010).
This principle precludes Moss’s failure to accommodate charge. Moss did not explicitly
state in his Perfected Charge of Discrimination that Pennyrile failed to accommodate his
disability, nor does such a claim reasonably grow out of the facts he asserted. Rather, his charge
focuses solely on harassment, retaliation, and termination claims, which do not share dates or
relevant facts with accommodation claims.2 Nothing in the charge references Pennyrile’s failure
to accommodate Moss’s disability.

Accordingly, he has not exhausted his administrative

remedies as to this theory.
Furthermore, the record reflects no medical proof supporting a record of disability
theory, as there is no indication that his condition substantially limited a major life activity.
Therefore, because Moss has failed to present evidence that he has a record of an impairment
that substantially limits a major life activity, he is not disabled under the ADA’s second
definition of disability. See Sebest v. Campbell City Sch. Dist. Bd. of Educ., 94 Fed. Appx. 320,
327 (6th Cir. 2004).
Finally, Moss argues that even if he is not “disabled” according to the above two
definitions, Pennyrile nonetheless regarded him as disabled and treated him accordingly; that is,
that Pennyrile retaliated against him and treated him with hostility because Glover believed that
Moss could not obtain a CDL. (Docket No. 39 at 8.) The Supreme Court has held that there are
2

Facts relevant to a claim for failure to accommodate include an employee’s need for assistance performing job
tasks, the employer’s knowledge of such a need, the employee’s request for help, the employer’s refusal to help, and
resultant injuries. By contrast, facts relevant to a claim for improper termination include an employee’s disability,
his absence for work due to his disability, the employer’s policy on permissible leave, the reasons given for the
employee’s termination, and the employee’s ability to return to work. See Jones v. Sumser Retirement Village, 209
F.3d 851, n.1 (6th Cir. 2000).

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two ways in which an individual can be regarded as disabled: “(1) a covered entity mistakenly
believes that a person has a physical impairment that substantially limits one or more major life
activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment
substantially limits one or more major life activities.” Sutton v. United Air Lines, Inc., 527 U.S.
471, 489 (1999) (overruled on other grounds).
Moss has not established that Pennyrile knew or believed that he was disabled.
Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1181 (6th Cir. 1993) (reasoning that if the
defendant was unaware of plaintiff’s disability, then the handicap could not have been a reason
for plaintiff’s dismissal, causing his prima facie case to fail). Moss has made no showing that
Pennyrile discriminated against him because of a belief that he was disabled. He admits that
Pennyrile management never suggested that he was being fired because of his lack of strength or
memory loss.

(Docket No. 33-8 at 69.)

Moreover, no evidence of record supports the

proposition that any adverse action was taken because Moss lacked a CDL. Instead, voluminous
deposition testimony indicates that no one considered him to be disabled because he did not have
a CDL.3 Moss has presented no evidence contradicting such testimony and has not established
his prima facie case.
II.

Reasonable accommodation

Even had Moss demonstrated that he has a disability that substantially limits a major life
activity, the record reflects that Moss never requested an accommodation. “An employee who
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Glover testified that he was unaware that Moss claimed a loss of strength until Moss filed the instant lawsuit.
(Docket No. 33-9 at 21.) He explained that Pennyrile abided by Moss’s medical documentation, none of which
suggested that Moss was any weaker. (Docket No. 33-9 at 20.) Michelle Small, Pennyrile’s Vice President of
Human Resources, echoed Glover’s testimony, explaining that Moss never requested an accommodation or
complained that he was unable to perform his job. (Docket No. 33-10 at 11-12.) Of numerous other deponents,
none testified that they discerned Moss’s weakness or memory loss. (See John Wapole Dep. at 4; John Baugh Dep.
at 5, 7; Freddie Powell Dep. at 11, 19; Mark Venable Dep. at 6-7; Chris Knight Dep. at 26; Robin Bybee Dep. at 4950, 60; Ali Cotton Dep. at 11, 17; Jeff White Dep. at 6-7).
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contends that he is otherwise qualified within a reasonable accommodation bears the initial
burden to propose an accommodation and show that the accommodation is objectively
reasonable.” Cash v. Siegel-Robert, Inc., 2013 WL 6231791 (6th Cir. 2013). The record
indicates that Moss did not inform Pennyrile that he required an accommodation, nor did he
propose a reasonable accommodation or request a transfer.

Having not fulfilled this

responsibility, Moss has not produced sufficient evidence to raise a jury question regarding his
reasonable accommodation claim. Therefore, he did not satisfy the second element of his prima
facie case. See Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 452 (6th Cir. 2002).
Accordingly, summary judgment is appropriate.
III.

Pretextual motivations
Additionally, even if Moss had established his prima facie case, raising a rebuttable

presumption that he was discharged due to his disability, he has not carried the McDonnell
Douglas burden to demonstrate that Pennyrile’s proffered legitimate reasons for terminating him
are pretextual. The McDonnell Douglas framework requires a plaintiff to demonstrate a nexus
between the adverse action and his disability.

Macy, 484 F.3d at 364 (citing McDonnell

Douglas, 411 U.S. at 802; Monette, 90 F.3d at 1177-86). To prove that Pennyrile’s stated
reasons are pretextual, Moss must show that Pennyrile’s asserted reasons lack any basis in fact,
that they did not motivate his transfer or discharge, or that they were insufficient to motivate the
transfer or discharge. Harris, 594 F.3d at 486 (citing Manzer v. Diamond Shamrock Chems. Co.,
29 F.3d 1078, 1084 (6th Cir. 1994)).
Moreover, Pennyrile has offered proof of numerous legitimate, nondiscriminatory
reasons for Moss’s transfer and termination. The company points to Moss’s long history of
misconduct and threats against Glover and the Pennyrile Board of Directors. (Docket No. 46 at
12

10.) Pennyrile has established that it terminated Moss because he repeatedly proved unable to
work professionally with other employees, because he was often aggressive and threatening to
his colleagues and management, and because he had engaged in a pattern of behavior that led
management to doubt his ability to serve as an effective employee. Moss was continually
reprimanded and warned by his supervisors that his unprofessional attitude and poor
performance was cause for concern. These reasons justify Moss’s termination. See Harris v.
Metro. Gov’t of Nashville, 594 F.3d 476, 486 (6th Cir. 2010) (holding that an employer had a
legitimate reason not to renew an employee’s appointment because the employee breached
confidentiality and exhibited poor work performance); Smith v. Leggett Wire Co., 220 F.3d 752,
759 (6th Cir. 2000) (holding that an employee’s physical threat to coworkers and supervisors
constituted a legitimate nondiscriminatory reason for his termination).
Moss has set forth insufficient evidence to raise a factual dispute that Pennyrile
terminated him for reasons other than his poor work performance. Although he argues that
Pennyrile mounted a multi-year campaign to oust him, he fails to demonstrate pretext. Moss
alleges that the numerous disciplinary actions and peculiar interactions he confronted were
intended to harass him, tarnish his reputation, and facilitate his forced resignation. However,
even if such improper and trivial aims existed, they would nonetheless not violate the ADA, as
he must demonstrate that Pennyrile’s purported motives were a pretext for underlying
discriminatory reasons. “Showing pretext is not the same as showing pretext for discrimination.”
Sullivan v. River Valley School Dist., 197 F.3d 804, 814 (6th Cir. 1999). And while he testified
that fellow employees bullied him by mocking his inability to release the forklift brake and
committing other breaches of protocol, he offers no proof that his suspensions, transfers, or
ultimate termination shared any connection with a perceived disability by his coworkers. See

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Mitchell v. Fowler Foods, 2013 WL 1508293, at *3 (W.D. Ky. Apr. 10, 2013). Therefore, even
if Moss could establish his prima facie case, Pennyrile is nonetheless entitled to summary
judgment.
IV.

Retaliation
To establish a claim for retaliation, Moss must show that (1) he engaged in protected

activity; (2) that this exercise of protected rights was known to Pennyrile; (3) that he suffered
adverse employment action; and (4) that a causal connection existed between the protected
activity and the adverse employment action. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578
(6th Cir. 2000) (citations omitted).

To establish a causal connection, Moss must “proffer

evidence sufficient to raise the inference that [his] protected activity was the likely reason for the
adverse action.”
Moss relies upon a “temporal proximity” theory to indicate that Moss was transferred and
ultimately terminated because he was unable to retain a CDL. (Docket No. 39 at 19.) Sixth
Circuit law dictates that “[w]here an adverse employment action occurs very close in time after
an employer learns of a protected activity, such temporal proximity between the events is
significant enough to constitute evidence of a causal connection for the purposes of satisfying a
prima facie case of retaliation.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.
2008). However, “where some time elapses between when the employer learns of a protected
activity and the subsequent adverse employment action, the employee must couple temporal
proximity with other evidence of retaliatory conduct to establish causality.” Id. The Court of
Appeals explained this distinction: “[I]f an employer immediately retaliates against an employee
upon learning of his protected activity, the employee would be unable to couple temporal
proximity with any such other evidence of retaliation because the two actions happened
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consecutively, and little other than the protected activity could motivate the retaliation.” Id.
(citing Cardenas v. Massey, 269 F.3d 251, 264 (3d. Cir. 2001) (“[T]emporal proximity alone will
be insufficient to establish the necessary causal connection when the temporal relationship is not
unusually suggestive.”)).
Here, even if Moss had pointed to a protected activity, the allegation of temporal
proximity is not sufficiently significant to establish a causal connection between his transfer or
termination and his alleged disability.

Moss underwent surgery on October 15, 2008 and

suffered a seizure on December 26, 2009. Upon his return to work, he was suspended twice in
2010, was transferred to the Hopkinsville office on May 20, 2011, and was terminated on
September 16, 2011. (Docket No. 39 at 4.) The Court concludes that this is not the type of
immediate retaliation contemplated under Mickey.

Accordingly, Pennyrile is entitled to

summary judgment on Moss’s retaliation claim.
CONCLUSION
Pennyrile has moved for summary judgment on Moss’s claims.

For the foregoing

reasons, Pennyrile’s Motion for Summary Judgment is GRANTED. An appropriate order shall
issue.

March 19, 2014

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