5:09-cv-00010 | W.D. Ky. | Aug 17, 2010
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO.: 5:09-CV-00010-TBR
KIM BYERS PLAINTIFF
v.
MIDWEST TERMINAL, INC. DEFENDANT
MEMORANDUM OPINION
This matter is before the Court upon Defendant, Midwest Terminal, Inc.’s, Motion for
Summary Judgment (DN 12). Plaintiff has filed a response (DN 14). Defendant has filed a reply
(DN 15). This matter is now ripe for adjudication. For the following reasons, Defendant’s motion
is GRANTED in part and DENIED in part.
Also before the Court is Defendant’s Motion for Leave to File Excessive Pages (DN 15).
Plaintiff filed no response. This matter is now ripe for adjudication. Defendant’s motion is
GRANTED.
Also before the Court is Defendant’s Motion for Leave to File Exhibit Inadvertently Omitted
from its Reply to Plaintiff’s Response to Motion for Summary Judgment (DN 16). Plaintiff filed
no response. This matter is now ripe for adjudication. Defendant’s motion is GRANTED.
BACKGROUND
Defendant, Midwest Terminal, Inc., is a petroleum transport company supplying petroleum
products to various industrial and commercial customers in the region. Plaintiff, Kim Byers, was
hired as a fuel delivery driver for Defendant on August 18, 2003. Plaintiff drove a petroleum
transport truck which is used to pull a petroleum tank trailer.
David Driskill worked as a dispatcher during the time Plaintiff was employed by Defendant
and was also considered Plaintiff’s supervisor. The daily assignment of jobs was at the discretion
of Driskill as there was no policy regarding how jobs were distributed. Each transport driver came
in around 6:00 a.m. and was assigned their first load of the day. After their first load was completed,
the driver would return to Midwest to be assigned another load. The second load was assigned
based on which customer’s order needed to be completed next and the order in which the drivers
returned from their first load.
The majority of Defendant’s customers used above-ground tanks. This required the driver
to hook up at least two hoses in order to pump the fuel product from the truck into the customers
tank. Thus, these jobs were referred to as “pump offs.” Customers who used below ground tanks,
usually convenience stores or gas stations, only required the driver hook up one hose and gravity
unloaded the fuel product. These jobs were referred to as “drops” or “drop loads” and were
generally considered easier than pump offs. Defendant had few convenience store, or drop,
customers.
Over time, Defendant also conducted other more specific jobs. For example, drivers
regularly transported fuel from a terminal in Memphis, Tennessee to the CNIC railroad in Fulton,
Kentucky. This was referred to as the Memphis job and was considered easier because it involved
mostly driving. Beginning in 2007, drivers also hauled ethanol from a railcar located at the P & L
rail yard in Paducah to Defendant’s facilities. This job was considered slightly more physically
demanding because the driver was required to climb a ladder to the top of the railcar to unfasten a
ventilation lid. Finally, drivers would also haul fuel to the Graves County Paving Plant during the
summer months while it was in operation. This was also considered a more difficult and physically
demanding job.
Plaintiff worked on the night shift when she was hired and shared a transport truck with an
2
individual named Gerald.1 Plaintiff has testified that Gerald did not like sharing the truck with her
and told her that she should not be working there because she was a woman and it was a man’s job.
She also testified that he left religious literature in the truck that reflected these views. Jack
Campbell, former Transportation Manger, observed Plaintiff and Gerald in a heated argument one
day and called them both into his office. Once in Campbell’s office, Gerald made a derogatory
comment to which Campbell responded. Plaintiff stated that after this incident things got better.
Plaintiff was moved to the day shift after Gerald was fired in 2004. There were four primary
transport truck drivers who worked the day shift: Buddy Rittenberry, John Finke, Trevor Collins,
and Plaintiff. Chris Marshall was later hired and two others, Shane Hayden and Tommy
Cunningham, floated between transport trucks and bob trucks.
Plaintiff testified that one driver in particular, Trevor Collins, did not like her. Collins was
good friends with David Driskill, the dispatcher. Plaintiff testified that she felt Collins was able to
influence her job assignments because of this friendship. Plaintiff believed Collins had an issue with
her working there because she was a woman. There was also testimony that Collins did not like
Plaintiff because Plaintiff’s lifestyle and sexual orientation. Plaintiff testified that she was given
more difficult jobs than the other drivers because she was a woman.
In early August, 2007, Plaintiff strained her back while loading ethanol from the railcar. She
was on workers’ compensation leave until February 6, 2008. On January 29, 2008, her physician
released her to return to work on February 4, 2008 with no restrictions. On February 6, 2008,
Plaintiff was assigned the ethanol job. Later, Plaintiff spoke with Michael Smith, the Chief
Operating Officer, about her concerns that the ethanol job was further aggravating her injury and
1
Gerald’s last name is not indicated in the record.
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causing her pain. Plaintiff was then assigned the Memphis job. Plaintiff testified that she believed
that other trips were intentionally added to the Memphis job she was assigned in order to make it
longer than normal.
On February 19, 2008, Plaintiff was assigned the Memphis job. While at the Lion Terminal
in Memphis, Plaintiff saw an employee of Defendant’s Memphis location, Wil Taylor. There is
dispute about what happened between Plaintiff and Taylor while at the terminal. Taylor states that
he first spoke with Plaintiff about the location of the restroom, but later Plaintiff came to Taylor’s
truck, opened the door and began cursing at him for cutting in line. Taylor says Plaintiff was
violently swinging his door and attempted to slam it shut when she walked away. Taylor says he
attempted to catch the door with his right hand to keep it from smashing his left hand. In his attempt
to catch the door he injured a finger on his right hand. He called Danny McGregor, his supervisor
in Memphis, after the incident and sought medical attention for his injury.
Plaintiff, on the other hand, states that Taylor had cut in line at the terminal which upset the
terminal manager and other drivers. She explained that, at the direction of the terminal manager,
she went up to Taylor’s truck to talk to him and that the discussion was heated. She testified that
she did not slam the door, although she did shut it. She also said Taylor made no indication at the
time that he had been injured. Plaintiff called Driskill after the incident to inform him that she had
gotten into an argument with Taylor.
Upon returning that evening from the Memphis job, Plaintiff met with Don Kirby, who had
replaced Campbell as Transportation Manager; Michael Smith; and Chris Jordan of Construction
Safety Consultants Inc., a safety consultant firm used by Defendant. Plaintiff was suspended while
Defendant investigated the incident. Jordan conducted the investigation obtaining statements from
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Plaintiff, Taylor and McGregor. Jordan provided Defendants with his report on March 3, 2008.
Defendant also considered a memo prepared by Don Kirby, the First Report of Injury or Illness
completed by Taylor, and the emergency room note documenting Taylor’s treatment at Concentra
Medical Centers.
On March 6, 2008, Plaintiff met with Don Kirby and Michael Smith. She was notified at that
time her employment was being terminated because of the incident with Taylor at Lion Terminal.
Plaintiff filed this suit in January of 2009, alleging Defendant intentionally discriminated
against her because of her sex, age, and disability in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000 et seq.; the Age Discrimination in Employment Act, 29 U.S.C. §621; the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and the Kentucky Civil Rights
Act, Ky. Rev. Stat. § 344.010 et seq. Defendant now moves for summary judgment as to each of
these claims.
STANDARD
Summary judgment is appropriate where “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 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" date_filed="1986-03-26" court="SCOTUS" case_name="Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation">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" date_filed="1990-05-25" court="6th Cir." case_name="Fed. Sec. L. Rep. P 94,768 Phil A. Street and Clyde H. Street v. J.C. Bradford & Company">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.
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Keys, 87 F.3d 795" date_filed="1996-06-26" court="6th Cir." case_name="Ila Hartsel v. Michael 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; the plaintiff must present evidence on which the trier of fact
could reasonably find for the plaintiff. 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: “the
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" date_filed="1996-07-30" court="6th Cir." case_name="Roger Monette and Doris Monette v. Electronic Data Systems Corporation">90 F.3d 1173, 1177
(6th Cir. 1996).
DISCUSSION
Plaintiff has voluntarily dismissed her claims for age discrimination; therefore, Counts V and
VI are dismissed and the Court need only address the remaining sex and disability discrimination
claims.
I. Sexual Discrimination in violation of Title VII and KCRA
Plaintiff has alleged sexual discrimination in violation of both Title VII and the KCRA for
actions prior to her termination and for her termination. Claims brought under KCRA have
consistently been construed as synonymous with claims raised under Title VII; therefore, the
analysis of each is the same. Williams v. Wal-mart Stores, Inc., 184 S.W.3d 492" date_filed="2005-11-23" court="Ky." case_name="Williams v. Wal-Mart Stores, Inc.">184 S.W.3d 492, 495 (Ky. 2005).
A claim of gender or sex discrimination may be proved through either direct or
circumstantial evidence. Williams, 184 S.W.3d 492" date_filed="2005-11-23" court="Ky." case_name="Williams v. Wal-Mart Stores, Inc.">184 S.W.3d at 495. If a plaintiff is without direct evidence, the
plaintiff must satisfy the burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792" date_filed="1973-05-14" court="SCOTUS" case_name="McDonnell Douglas Corp. v. Green">411 U.S. 792
6
(1973). Id. 2 Under the McDonnell Douglas framework, the plaintiff must first present a prima facie
case of gender discrimination. 411 U.S. 792" date_filed="1973-05-14" court="SCOTUS" case_name="McDonnell Douglas Corp. v. Green">411 U.S. at 802. Once a prima facie case is presented, the defendant
must then articulate a legitimate, nondiscriminatory reason for its decision. Id. If the defendant
meets its burden, the burden shifts back to the plaintiff to establish that the stated reason was merely
a pretext for discrimination. Id. at 804.
In order to establish her prima facie case, Plaintiff must prove:
(1) she is a member of a protected group; (2) she was subjected to an adverse
employment decision; (3) she was qualified for the position; and (4) she was replaced
by a person outside the protected class, or similarly situated non-protected employees
were treated more favorably.
Grace v. USCAR, 521 F.3d 655" date_filed="2008-03-26" court="6th Cir." case_name="Grace v. USCAR">521 F.3d 655, 677 (6th Cir. 2008) (citing Peltier v. United States, 388 F.3d 984" date_filed="2004-10-28" court="6th Cir." case_name="Karen F. Peltier v. United States">388 F.3d 984,
987 (6th Cir.2004)).
A. Discrimination Prior to Termination
Defendant argues that Plaintiff has failed to present evidence that she was subjected to an
adverse employment action prior to her termination. An “adverse employment action” is one that
“affect[s] employment or alter[s] the conditions of the workplace.” Burlington Northern and Santa
Fe Ry. Co. v. White, 548 U.S. 53" date_filed="2006-06-22" court="SCOTUS" case_name="Burlington Northern & Santa Fe Railway Co. v. White">548 U.S. 53, 61 (2006). Generally, it involves changes in the terms of
employment, such as “hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in benefits,” and usually “inflicts direct
2
The Court notes this is not a mixed-motive case. Although Plaintiff alleges in her
Complaint “sex was a motivating factor in Defendant’s treatment of her,” she does not raise the
issue in her response. See Hashem-Younes v. Danou Enters. Inc., 311 F. App’x 777" date_filed="2009-02-17" court="6th Cir." case_name="Nada Hashem-Younes v. Danou Enterprises Incorporated">311 F. App’x 777, 779 (6th
Cir. 2009) (affirming the district court’s application of the McDonnell Douglas analysis where
the plaintiff failed to raise a mixed-motive claim in her complaint or in her response to the
defendants’ summary judgment motion, and the record was “utterly silent as to mixed motives”).
In fact, Plaintiff states in her response she is relying on indirect evidence of discrimination and
therefore the McDonnell Douglas shifting burden analysis is appropriate.
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economic harm.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742" date_filed="1998-06-26" court="SCOTUS" case_name="Burlington Industries, Inc. v. Ellerth">524 U.S. 742, 761; 762 (1998); White v. Baxter
Healthcare Corp., 533 F.3d 381" date_filed="2008-07-03" court="6th Cir." case_name="White v. Baxter Healthcare Corp.">533 F.3d 381, 402 (6th Cir. 2008). The Sixth Circuit has defined an adverse
employment action as,
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.
Hollins v. Atlantic Co., Inc., 188 F.3d 652" date_filed="1999-08-13" court="6th Cir." case_name="Eunice Hollins v. Atlantic Company, Inc. Swagelok Company Crawford Fitting Company John Doe Companies, 1-100">188 F.3d 652, 662 (6th Cir. 1999) (quoting Crady v. Liberty National
Bank & Trust Co. of Indiana, 993 F.2d 132" date_filed="1993-05-10" court="7th Cir." case_name="Ernest L. Crady v. Liberty National Bank and Trust Company of Indiana, Steve Richards, Branch Administrator, and Jack Ragland, Chief Executive Officer">993 F.2d 132, 136 (7th Cir.1993)).
Plaintiff asserts she was forced to perform harder work and was subjected to derogatory
comments based on her gender which together constituted an adverse employment action. Plaintiff
relies on Ford v. General Motors Corp., where the court found an adverse employment action when
there was evidence of an increased work load, heightened scrutiny based on protected status, and
constructive discharge. 305 F.3d 545" date_filed="2002-09-27" court="6th Cir." case_name="George Ford Mary A. Ford v. General Motors Corporation">305 F.3d 545, 553-54 (6th Cir. 2002). As evidence of an adverse
employment action, Plaintiff points primarily to her own deposition testimony and that of Shawn
Creal, a former driver for Defendant.
First, Plaintiff has argued she was assigned harder work. Plaintiff testified she was assigned
harder jobs on a more frequent basis than the male drivers. Byers Dep. 59:4-15, 60:20-24, 61:24-
62:3, 64:24-65:15, 68:21-69:13. For example, Plaintiff testified that on her first day back from
workers comp leave she was assigned the ethanol job that had caused her injury. Byers Dep. 82:8-
83:6. She also testified that after her return from her injury the ethanol job was assigned to her more
than the other drivers. Byers Dep. 74:13-75:7; 75:16-21; 78:19-79:19. Plaintiff testified that when
she complained about that assignment aggravating her back injury she was assigned to the Memphis
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job, but that other jobs were added to the Memphis run to make it much longer, although other
drivers did not have other jobs added on when they were assigned the Memphis job. Byers Dep.
106:12-107:18; 107:25-108:15.
Defendants argue that the records refute that Plaintiff was given more difficult assignments.
The Record of Truck Activity sheets for February 2008 reflect that during this period Plaintiff was
assigned the ethanol job on one occasion: February 6, 2008. DN 12-10. After that date, the records
reflect Plaintiff was assigned the Memphis job. DN 12-10. During this same period Shane Hayden
hauled two ethanol loads and Tommy Cunningham hauled one. DN 12-11, 12-12. The records
further reflect that on only two occasions, out of nine, Plaintiff was required to make other stops on
the Memphis job: February 14 and 19. DN 12-10. The records also reflect that other drivers who
were assigned the Memphis run occasionally were required to make additional deliveries. At least
two other drivers, Rittenberry and Cunningham, also testified that it was not uncommon to be
required to make another stop while on the Memphis job. Rittenberry Dep. 28:24-29:18;
Cunningham Dep.41:7-42:19, March 15, 2010.
In addition to the ethanol job which Plaintiff testified she was assigned more than her male
co-workers, she testified that she was the only driver assigned the difficult Graves County Pavement
job. Byers Dep. 60:23-24; 61:24-62:9. Defendant points to the Daily Dispatch Logs for the year
2007, which reflect that only four runs were made to the paving plant and all four were assigned to
male drivers.
There is evidence that Defendant may not have keep complete records. Before the Court are
two types of records: the “Daily Dispatch Log” and the “Record of Truck Activity” from each
driver. Driskill kept the Daily Dispatch Log. He testified that the Dispatch Log listed every truck
9
and driver and that he was supposed to record the jobs he assigned to each driver on that log.
Driskill Dep. 45:15-19, Feb. 15, 2010. He also stated that he sometimes only recorded a driver’s first
load instead of all job assignments. Driskill Dep. 57:22-58:18. He also explained he only kept those
records for one month before he disposed of them. Driskill Dep. 46:10-9, 56:2-18, 57:4-5.
Defendants have provided the Daily Dispatch Logs beginning January 2, 2007 until August 3, 2007.
The dispatch records have not been produced for any time prior to, or after, 2007. The Record of
Truck Activity is a document filled out by the individual driver documenting the jobs the driver
completes each day. The Record of Truck Activity for each driver has been provided for February
2008. No other Record of Truck Activity sheets have been provided.
Plaintiff next asserts she was subjected to derogatory comments which, together with the
harder work, rose to the level of an adverse employment action. Plaintiff has pointed to the
testimony of Shawn Creal that the dispatcher, David Driskill, and another driver, Trevor Collins,
would make jokes about Plaintiff and give her jobs that Collins did not want. Creal Dep. 22-23,
March 31, 2010. Plaintiff testified that she was told by a co-worker, Gerald, she should not work
there because she was a woman in a man’s job. Byers Dep. 19:16-20:13; 23:8-23; 25:4-15; 27:2-9,
36:10-24. Plaintiff provided testimony that derogatory comments regarding her lifestyle and the fact
that she did not live or dress like a stereotypical female were made by other employees. Rittenbery
Dep. 13:24-25, 14:1-9, 21:24-22:8, 27:24-28:4; Creal Dep. 103:11-104:4, 105:4-25, 122:14-123:17.
The record reflects that Gerald was terminated relatively soon after Plaintiff’s employment and that
he was not a supervisor and had no control over Plaintiff.
It is a very close question whether Plaintiff has established sufficient evidence of an adverse
employment action; however, out of caution the Court finds Plaintiff has established a genuine issue
10
of material fact. The Court is not confident all the facts are before it and finds this is an issue better
examined at the close of all the testimony.
Defendant next argues that Plaintiff is unable to show the final element, i.e, that she was
treated differently than similarly situated non-protected co-workers. As just discussed, Plaintiff
asserts she was given harder work than male employees and thus was treated differently.
Defendants argue that the dispatch records refute this. The Court has found there is a genuine issue
of material fact regarding this issue.
Furthermore, Plaintiff also asserts she was treated differently than male drivers returning
from injuries when she returned from her injury. Plaintiff argues that other male drivers were
permitted light duty or modified assignments to accommodate their medical conditions. Plaintiff
identifies several employees who she alleges received more favorable treatment after their injuries
than Plaintiff, including Shane Hayden, Buddy Rittenberry, and Joseph Gilbert. Plaintiff must
demonstrate that she is similarly situated in all relevant aspects with the employees with whom she
seeks to compare herself. Knox v. Neaton Auto Products Mfg., Inc., 375 F.3d 451" date_filed="2004-07-09" court="6th Cir." case_name="Jayne Knox v. Neaton Auto Products Manufacturing, Inc.">375 F.3d 451, 458 (6th Cir.
2004).
Plaintiff testified Shane Hayden was allowed to do light-duty work after he was injured,
explaining, “he came back on light duty and basically just sat around the warehouse and did nothing
for that week and maybe another week.” Byers Dep. 78, 190:15-19. Defendant presented evidence
that Hayden injured his left shoulder on July 15, 2007. DN 15-3. Defendant has also produced the
dispatch log from July 20, 2007 indicating Hayden was dispatched that day as a driver. DN 15-4.
There is no evidence what, if any, restrictions Hayden was given by his physician upon his return
to work; however, the record is clear that Plaintiff was allowed to return to work with no restrictions.
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Plaintiff asserted Buddy Rittenberry was allowed to switch form the long Memphis run to
shorter local routes to ease his hemorrhoid pain. Byers Dep. 192:5-15. Rittenberry testified that he
never requested to be moved to local runs to reduce his pain. Rittenberry Dep. 30:10:21, March 15,
2010. He stated that although he was having problems he continued to do his normal work.
Rittenberry Dep. 30:21-22. The record also reflects Plaintiff was switched to the Memphis run after
she informed management that the ethanol run aggravated her prior injury. Byers Dep. 106:14-19.
Therefore, Plaintiff was not treated differently.
Plaintiff asserts another position was created for Gilbert on his return after an injury. Gilbert
was involved in an accident in which the truck he was drive burned. Byers Dep. 14:2-11. Gilbert
was severely injured and was not able to drive a truck again. Byers Dep. 190:1-10. As a result,
Gilbert was assigned a night dispatch job. Byers Dep. 186:19-21, 190:1-10. Plaintiff is not similarly
situated to Gilbert as he suffered much more extensive and severe injuries than Plaintiff.
As with Plaintiff’s assertion of an adverse employment action, the Court finds this is a very
close question and one better examined at the close of all the evidence. Out of caution the Court
finds Plaintiff has established some dispute about whether she was treated differently than male
drivers returning from an injury. Plaintiff has also established a dispute about whether she was
given more difficult work than her male co-workers.
Plaintiff has established a prima facie case of disparate treatment prior to her termination.
It does not appear Defendant has asserted a legitimate non-discriminatory reason for the alleged
disparate treatment; therefore, the Court need not determine if Plaintiff has presented sufficient
evidence of pretext. Summary judgment is denied.
B. Termination
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Defendant argues Plaintiff cannot establish a prima facie case of discrimination based on her
termination because she cannot establish that she was replaced by person outside of the class or that
similarly situated non-protected employees were treated more favorably. Defendant asserts Plaintiff
was not replaced and that Defendant has downsized the number of drivers since her termination.
Defendant further asserts Plaintiff has not shown that other male drivers were not terminated after
an altercation with a co-worker, especially one where the co-worker sought medical treatment. In
the alternative, Defendant argues that even if Plaintiff has established a prima facie case, Plaintiff
is unable to show that Defendant’s stated non-discriminatory reason for her termination is pretext.
Defendant’s stated reason for terminating Plaintiff was her altercation with Wil Taylor during which
he was injured.
In order to establish pretext “the plaintiff must produce sufficient evidence from which the
jury may reasonably reject the employer’s explanation.” Manzer v. Diamond Shamrock Chems. Co.,
29 F.3d 1078" date_filed="1994-09-22" court="6th Cir." case_name="Edwin Manzer v. Diamond Shamrock Chemicals Company">29 F.3d 1078, 1083 (6th Cir.1994) (citing Gaworski v. ITT Commercial Finance Corp., 17 F.3d
1104, 1109 (8th Cir.1994)) (overruled on other grounds by Geiger v. Tower Automotive, 579 F.3d
614 (6th Cir. 2009). The plaintiff must show “(1) that the proffered reasons had no basis in fact, (2)
that the proffered reasons did not actually motivate [the action], or (3) that they were insufficient
to motivate [the action]” in order to establish pretext. Id. at 1084 (quoting McNabola v. Chicago
Transit Auth., 10 F.3d 501" date_filed="1993-11-24" court="7th Cir." case_name="William McNabola v. Chicago Transit Authority">10 F.3d 501, 513 (7th Cir.1993)).
The Sixth Circuit has held that “[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, foolish, trivial, or baseless.’” Chen v. Dow
Chem. Co., 580 F.3d 394" date_filed="2009-09-08" court="6th Cir." case_name="Chen v. Dow Chemical Co.">580 F.3d 394, 401 (6th Cir. 2009). This honest-belief rule requires an employer
13
“establish its reasonable reliance on the particularized facts that were before it at the time the
decision was made.” Smith v. Chrysler Corp., 155 F.3d 799" date_filed="1998-09-15" court="6th Cir." case_name="James P. Smith v. Chrysler Corporation">155 F.3d 799, 806-07 (6th Cir. 1998). However,
“once the employer is able to point to the particularized facts that motivated its decision, the
employee has the opportunity to produce ‘proof to the contrary.’” Id. at 807; see also Clay v. United
Parcel Service, Inc., 501 F.3d 695" date_filed="2007-08-31" court="6th Cir." case_name="Clay v. United Parcel Service, Inc.">501 F.3d 695, 713-14 (6th Cir. 2007).
Here, Defendant has pointed to specific facts that it had at the time the decision to terminate
was made which would justify its belief in the proffered reason. An investigation was performed
by a consultant, Chris Jordan at Construction Safety Consultants, Inc. DN 12-16. Statements from
Plaintiff, Taylor, and Danny McGregor were all collected. DN 12-16. Defendant also had the
emergency room note confirming Taylor sought treatment the afternoon of February 19, 2008. DN
23-17. The medical note stated he was complaining of an assault by a co-worker. DN 23-17. The
consultant concluded “the actions taken by Ms. Byers were not only unprofessional, but were
harmful to another co-worker.” DN 12-16.
Based on the facts reasonably before Defendant, Defendant had a reasonable basis and an
honestly held belief that the incident between Plaintiff and Taylor had occurred. Defendant had the
statements of both parties as well as the decision of a third party not employed by Defendant.
Plaintiff has not presented evidence which establishes that the stated reason did not actually
motivate her termination or was insufficient to motivate her termination. Plaintiff argues that the
facts do not support the conclusion that Plaintiff caused the altercation or injured Taylor. Plaintiff’s
disagreement with the facts relied upon by the employer does not create a genuine issue of material
fact that would defeat summary judgment if the employer made a “reasonably informed and
considered decision.” See Michael v. Catepillar Fin. Servc., 496 F.3d 584" date_filed="2007-07-31" court="6th Cir." case_name="Michael v. Caterpillar Financial Services Corp.">496 F.3d 584, 599 (6th Cir. 2007)
14
(quoting Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106" date_filed="2001-12-21" court="6th Cir." case_name="Ronald C. Majewski v. Automatic Data Processing, Inc.">274 F.3d 1106, 1117 (6th Cir. 2001)).
Plaintiff, citing Vincent v. Brewer Co., argues that the Court may find discrimination where the facts
do not support the justification offered for termination. 514 F.3d 489" date_filed="2007-12-19" court="6th Cir." case_name="Vincent v. BRERWER CO.">514 F.3d 489, 498-99 (6th Cir. 2007). In
Vincent, the employer claimed it laid off a female employee due to downsizing; however, the
evidence showed that the employer hired more employees after terminating the plaintiff. Id.
Plaintiff argues this case is analogous because the facts do not support a finding that Plaintiff injured
Taylor. A more analogous circumstance would be where Defendant fired Plaintiff for injuring
another employee but later allowed an employee to remain after injuring another employee. There
is no such evidence before the Court in this case. Here, the case law makes clear if Defendant
reasonably relied on the facts before it in make its decision, regardless if they are now proven to be
“‘mistaken, foolish, trivial, or baseless,’” Defendant is entitled to summary judgment. Chen v. Dow
Chem. Co., 580 F.3d 394" date_filed="2009-09-08" court="6th Cir." case_name="Chen v. Dow Chemical Co.">580 F.3d 394, 401 (6th Cir. 2009). Here, whether or not this altercation actually took
place and regardless of what happened during the altercation, the fact that Defendant reasonably and
honestly relied on the information before it and Plaintiff has not established pretext requires the
Court grant summary judgment for Defendant.
II. Disability Discrimination in violation of the ADA and KCRA
Plaintiff alleges in her Complaint that Defendant violated both the Americans with
Disabilities Act (“ADA”) and the KCRA when Defendant, despite being aware of Plaintiff’s
physical limitations and light-duty work restrictions, refused to accommodate Plaintiff. Defendant
argues that Plaintiff’s claim fails as she unable to establish that she is a qualified individual with a
disability. Plaintiff asserts she was temporarily unable to perform her job and she is permanently
limited in her ability to bend, wash dishes and ride her jet ski.
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As stated, Plaintiff asserts disability discrimination under both the ADA and KCRA;
however, the same analysis applies to both claims. Bryson v. Regis Corp., 498 F.3d 561" date_filed="2007-08-16" court="6th Cir." case_name="Bryson v. Regis Corp.">498 F.3d 561, 574 (6th
Cir. 2007). The ADA prohibits employers from discriminating “against a qualified individual with
a disability.” 42 U.S.C. § 12112(a). A “qualified individual” is “an individual who, with or without
reasonable accommodation, can perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8). The ADA defines disability as:
(a) a physical or mental impairment that substantially limits one or more of the major
life activities of the individual;
(b) a record of such an impairment; or
(c) being regarded as having such an impairment.
42 U.S.C. § 12102(1).
Part (a) is applicable in this case and Plaintiff must prove more than mere impairment;
Plaintiff must establish the impairment substantially limits one or more major life activity. Bryson,
489 F.3d at 575. The regulatory definition states that one is substantially limited when one is
unable to perform a major life activity that the average person in the general
population can perform; or [is] significantly restrict[ed] as to the condition, manner
or duration under which [he] can perform a particular major life activity as compared
to the condition, manner, or duration under which the average person in the general
population can perform that same major life activity.
29 C.F.R. §1620.2(j). Major life activities include “caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. 1630.2(i) (2008).3
There are several factors which may be considered when determining whether a major life activity
3
The ADA was amended effective January 1, 2009 by the ADA Amendments Act of
2008 Pub. L. No. 110-325, 122 Stat. 3553 (2008). The events that give rise to Plaintiff’s claims
occurred well before the effective dates of the amendments. These Amendments do not apply
retroactively. Milholland v. Sumner Co. Bd. of Educ., 569 F.3d 562" date_filed="2009-07-02" court="6th Cir." case_name="Milholland v. Sumner County Board of Education">569 F.3d 562 (6th Cir. 2009). Therefore,
the amended version of the ADA does not govern.
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is substantially limited, including (1) the nature and severity of the impairment; (2) the duration or
expected duration of the impairment; (3) the permanent or long term impact, or the expected
permanent or long term impact of or resulting from the impairment. Id. The Court may also consider
the job or jobs from which the individual has been disqualified because of the impairment. 29
C.F.R. § 1630.2(j)(3)(ii); see McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369" date_filed="1997-05-12" court="6th Cir." case_name="Pamela McKay v. Toyota Motor Manufacturing, U.S.A., Inc.">110 F.3d 369, 372-73 (6th
Cir. 1997).
Plaintiff has testified that she is limited in her ability to bend, wash dishes, and ride her jet
ski. Byers Dep. 183:2-7 (dishes), 183:14-15 (bending), 6:23-7:2 (ski). Arguing Plaintiff is not
disabled, Defendant points to evidence that she was allowed to return to her regular job as a truck
driver without restrictions. DN 12-15. Specifically, her physician explained, “[s]he is having no
pain . . . I have allowed her to return to work on 02/04/08 to her regular job, I have not given her
any permanent restrictions.” DN 12-15. Defendant also points to evidence that Plaintiff has
continued to work as a truck driver since her termination. Byers Dep. 136:14, 184:11-23. Defendant
also points out that Plaintiff testified she rode her jet ski after her back injury. Byers Dep. 4:20-5:22.
The Court finds Plaintiff is not disabled within the meaning of the ADA. The Court notes
that Plaintiff has not alleged she is substantially limited in the major life activity of work; therefore,
Defendant’s argument regarding Plaintiff’s ability to continue to work is misplaced. However,
Plaintiff has not provided sufficient evidence to establish her alleged impairment limits a major life
activity. Although under the current ADA regulations bending is specifically listed as a major life
activity, it was not so labeled under the prior regulations under which this action arose.
Furthermore, when asked if her back problems kept her from bending she responded, “[t]o a certain
extent.” Byers Dep. 183:14-15. Plaintiff has not shown that she was substantially limited in her
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ability to bend.
Plaintiff also testified that her impairment “affects from washing dishes to whatever.” Byers
Dep. 183:5-6. Washing dishes is a household task and such tasks are generally considered a part
of the major life activity of caring for oneself. See generally McKay v. Toyota Motor Mfg., U.S.A.,
Inc., 110 F.3d 369" date_filed="1997-05-12" court="6th Cir." case_name="Pamela McKay v. Toyota Motor Manufacturing, U.S.A., Inc.">110 F.3d at 371-2; see also Marinelli v. City of Erie, Pa., 216 F.3d 354" date_filed="2000-06-22" court="3rd Cir." case_name="Marinelli v. City of Erie">216 F.3d 354, 362 (3d Cir. 2000).
In McKay, the Sixth Circuit affirmed the district court’s holding that the “plaintiff was not limited
in the ‘major life activity’ of caring for herself because ‘the only household function [the plaintiff]
claims to be substantially limited in is mopping.” Id.(citations omitted). Similarly to the plaintiff
in McKay, Plaintiff is not limited in the major life activity of caring for herself because the only
household function she claims to be limited is washing dishes and she does not allege that she is
substantially limited, only that her ability is affected.
Summary judgement is granted for Defendants on Plaintiff’s disability discrimination
claims.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED in part
and DENIED in part. Plaintiff’s claim for sexual discrimination prior to her termination remains;
all other claims against Defendant are dismissed.
In addition, Defendant’s Motion for Leave to File Excessive Pages is GRANTED and
Defendant’s Motion for Leave to File Exhibit Inadvertently Omitted from its Reply to Plaintiff’s
Response to Motion for Summary Judgment is GRANTED.
An appropriate judgment shall issue.
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August 17, 2010