Opinion
Civil Action No. 3:00CV-300-S
July 30, 2002
MEMORANDUM OPINION
This action is before the court on defendant's Motion for Summary Judgment. For the reasons stated below, defendant's motion will be GRANTED.
BACKGROUND
Prior to 1998, defendant operated a business in Louisville, Kentucky that manufactured and sold food and beverage processing equipment. In 1998, it acquired APV Ice Cream Company, which manufactured ice cream equipment. As a result of the acquisition, defendant's operations were split into a process division and an ice cream division. This divided structure was maintained until 2000, when the two divisions were combined in a cost-cutting effort. Plaintiff was employed as a buyer in the process division until his termination in May, 1999.
Between 1978 and 1999 defendant systematically reduced its work force from 300 employees to 90 in an effort to reduce costs. Plaintiff was terminated during one of defendant's work force reductions in the process division. He was 54 years old. There were two additional buyers in the process division at the time, one of whom was also terminated during the same reduction. There were also two buyers in the ice cream division, both of whom were retained. The retained process division buyer, Wes Hoover, was 55 years old when plaintiff was terminated. The retained ice cream division buyers, Terry Higgs and Warren Pierce, were aged 40 and 44 respectively.
Higgs's age at the time of plaintiff's termination has not been conclusively established. Testimony reveals Higgs was "about 40 years old" or "40-plus." (Pltf. Dep. at 61; Summers Dep. at 33). However, as defendant does not dispute plaintiff's statement that Higgs was 40, we will assume Higgs was not a member of the protected class. See (Pltf. Resp. Summ. J. at 2); Askin v. Firestone Tire Rubber Co., 600 F. Supp. 751, 752 (E.D.Ky. 1985) (stating protected age group in age discrimination case is over 40).
After being terminated, plaintiff filed a claim with the Equal Employment Opportunity Commission ("EEOC") alleging age discrimination. The EEOC, however, determined there was no discrimination. (Pltf. Dep. at 71).
Plaintiff subsequently filed this action alleging age discrimination in violation of the Kentucky Civil Rights Act, K.R.S. 344.010 et seq. ("KCRA") and conspiracy to violate the KCRA in violation of K.R.S. 344.280. Defendant now moves for summary judgment on all claims.
DISCUSSION
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
However, the moving party's burden may be discharged by demonstrating that there is an absence of evidence to support an essential element of the nonmoving party's case for which he or she has the burden of proof. Celotex Corp., 477 U.S. at 323. Once the moving party demonstrates this lack of evidence, the burden passes to the nonmoving party to establish, after an adequate opportunity for discovery, the existence of a disputed factual element essential to his or her case with respect to which he or she bears the burden of proof. Id. If the record taken as a whole could not lead the trier of fact to find for the nonmoving party, the motion for summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Defendant argues it is entitled to summary judgment because plaintiff cannot establish a prima facie case of age discrimination. We agree. The KCRA's discrimination provisions "track the federal law and should be interpreted consonant with federal interpretation." Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814 (Ky. 1992). Thus, in order to establish a prima facie case of age discrimination, plaintiff must show that 1) he is a member of a protected class; 2) he was qualified for his position; 3) he suffered an adverse employment action; and 4) he was replaced by a person outside the class or a comparable, non-protected person received better treatment. See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
Alternatively, plaintiff may establish a prima facie case by showing discriminatory intent. However, as plaintiff has produced no direct evidence of this, we will proceed under McDonnell Douglas. See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 n. 4 (6th Cir. 1991).
It is undisputed that plaintiff was a member of a protected class as he was over 40 years old at the time of his termination. Further, defendant acknowledges plaintiff was qualified for his position and that he suffered an adverse employment action. (Def. Mem. Summ. J. at 8). Plaintiff has not shown, however, that he was replaced by a person outside the class or a comparable, non-protected person received better treatment.
After terminating plaintiff, defendant did not replace him but instead continued its business with only one buyer in the process division until the process and ice cream divisions were consolidated in January, 2000. (Summers Dep. at 33-35). Plaintiff argues he was replaced by Higgs because Higgs assumed some of his duties after his termination. However, "[s]preading the former duties of a terminated employee among the remaining employees does not constitute replacement." Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992). Plaintiff, therefore, cannot establish that he was replaced by a person outside the class.
Likewise, plaintiff cannot show a comparable, non-protected person received better treatment. He argues Higgs was retained in the work force reduction and thus received better treatment. We cannot, however, view Higgs as comparable to defendant. "[T]he individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Mitchell, 964 F.2d at 583. Higgs, unlike plaintiff, was a buyer in the ice cream division. The evidence shows that the work force reduction in which plaintiff lost his job did not affect the ice cream division because "that business . . . was not only new, but it was, it was being very successful, where the process business was going downhill." (Summers Dep. at 31). Further, the ice cream division buyers were based in Philadelphia, Pennsylvania while the process division buyers were based in Louisville, Kentucky. See id. Plaintiff therefore cannot establish the fourth element of a prima facie age discrimination case. Defendant will accordingly be granted summary judgment.
Defendant next argues it is entitled to summary judgment on plaintiff's conspiracy claim as he has presented no evidence in support of such claim. We agree. Plaintiff alleges defendant conspired to violate the KCRA in violation of KRS 344.280. He supports his claim with "two signed and sworn affidavits indicating that [defendant] has engaged in a pattern of age discrimination over the years." (Pltf. Resp. Summ. J. at 7; Exhs. A, B). The affidavits, both from former employees of defendant, contain entirely conclusory testimony that is unsupported by any factual evidence. We find these affidavits insufficient to raise a genuine issue of material fact. See Williams v. Ford Motor Co., 187 F.3d 533, 544 (6th Cir. 1999) ("Plaintiffs cannot challenge the motion for summary judgment by relying on allegations contained in their complaint or on affidavits that merely state conclusory allegations."). Defendant will therefore be granted summary judgment on plaintiff's conspiracy claim.
KRS 344.280 provides:
It shall be an unlawful practice for a person, or for two (2) or more persons to conspire:
(1) To retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this chapter; or
(2) To aid, abet, incite, compel, or coerce a person to engage in any of the acts or practices declared unlawful by this chapter; or
(3) To obstruct or prevent a person from complying with the provisions of this chapter or any order issued thereunder;
(4) To resist, prevent, impede, or interfere with the commission, or any of its members or representatives, in the lawful performance of duty under this chapter; or
(5) To coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by KRS 344.360, 344.367, 344.370, 344.380, or 344.680.
CONCLUSION
For the reasons stated above, defendant's Motion for Summary Judgment will be GRANTED.
ORDER
For the reasons set forth in the memorandum opinion entered this date and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that defendant's Motion for Summary Judgment is GRANTED and plaintiff's claims are hereby DISMISSED WITH PREJUDICE.