This matter comes before the Court on a Motion for Summary Judgment by Defendants (DN 70). Plaintiff has filed his response (DN 75), to which Defendants have replied (DN 86). Also before the Court is Plaintiff's Motion to Strike portions of Defendants' Motion for Summary Judgment (DN 78) and Plaintiff's Motion to Strike Defendants' Reply (DN 87), to which Defendants have responded. (DN 85 & 88, respectively.) This matter is now ripe for adjudication. For the reasons that follow, Defendants' Motion for Summary Judgment is GRANTED and Plaintiff's motions to strike are DENIED.
This case arises from the employment and subsequent termination of Plaintiff, Farhad Hashemian, by Louisville Regional Airport Authority ("LRAA"). Plaintiff, an Iranian, was employed at LRAA for 23 years as an Environmental Manager. Plaintiff's primary responsibility as Environmental Manager was to oversee the environmental abatement and demolition of the houses acquired by LRAA as part of its noise-relocation program. Plaintiff's direct supervisor was Defendant Karen Scott, who was hired as Deputy Executive Director of Engineering and Planning in October 2004.
In August 2007, Plaintiff filed a written grievance about comments Scott made during a staff meeting regarding Plaintiff's possible favoritism toward a contractor who was bidding on a LRAA project. Plaintiff complained that Scott made these remarks because Plaintiff shared Iranian national origin with the contractor, although there was no mention of race or ethnicity during the meeting. Following a mediation between involved parties, Scott was counseled on using different methods when questioning an employee's professional or personal ethics, and Plaintiff was required to undergo conflict resolution counseling (at LRAA's expense) because of his inappropriate reaction to the events.
In the fall of 2007, Plaintiff was one of seven candidates to interview for the vacant Director of Engineering position. A four-person panel that included Defendant Steve Petty, then Director of Public Safety, conducted the initial interviews and ranked the candidates using a standard evaluation form. The top two candidates were selected for final interviews with Scott. Plaintiff, who was ranked third after the initial interviews, did not proceed in the interview process. Scott ultimately selected the second-ranked Dwight Clayton, of American national origin, for the position.
Throughout 2008, Scott and Plaintiff continued to experience conflict. During this time period, the two met with Director of Human Resources, Defendant Janet Barrow, and Plaintiff was informed that the way he discussed matters with Scott could be perceived as argumentative. On December 23, 2008, Plaintiff received a written warning for his disruption of a noise project pre-bid conference and subsequent insubordinate behavior in Scott's office earlier that month. Plaintiff insisted he had not been insubordinate, and that same day, Plaintiff filed a Charge of Discrimination with the EEOC for ongoing national origin discrimination by Defendants. Plaintiff alleges retaliation against him intensified after he filed his first EEOC charge and continued until he was terminated.
Plaintiff's conflicts with Scott continued through 2009. During this time period, Plaintiff registered nine complaints and/or grievances against Defendants Scott, Barrow, Executive Director C.T. "Skip" Miller, and Deputy Executive Director of Finance & Administration, Michael Burris, who was Barrow's immediate supervisor. Plaintiff often sent lengthy memoranda accompanying his complaints, but was not satisfied with LRAA's response. On June 24, 2009, LRAA eliminated five inspectors in the Engineering Department due to budgetary constraints and lack of work. Two of these inspectors reported directly to Plaintiff. Following the layoffs, Scott and Burris met with the remaining Engineering Department managers and informed them that they would be required to assume additional duties due to the workforce reduction.
In July, Scott sent Plaintiff an email inquiring about a matter that she had requested Plaintiff take care of and indicated that she would "address [Plaintiff's] performance on this matter accordingly." In response, on July 6, 2009, Plaintiff sent an eight-page memorandum to Scott, Miller, and Burris listing twenty "factual events" that he believed demonstrated Scott's various failings as Deputy Executive Director. Following this memorandum, Miller asked Burris to place Plaintiff on paid leave to allow for a "cooling off period." On July 22, 2009, Scott and Miller conducted a reinstatement meeting in which Plaintiff received an annual evaluation. The evaluation reflected deficiencies in several areas, and Plaintiff was placed on a performance improvement plan. Also on July 22, 2009, Plaintiff filed a second Charge of Discrimination with the EEOC. Following LRAA's receipt of his second discrimination charge, Plaintiff called into work sick, and then took Family and Medical Leave Act ("FMLA") leave on August 3, 2009.
Plaintiff was on leave until October 15, 2009, for his medical condition of coronary artery disease with angioplasty and stenting placement. While Plaintiff was on leave, all incoming phone calls were forwarded to Scott's telephone so that business-related calls were answered, and his access to LRAA's computer network remained intact. However, Plaintiff failed to reset his password upon its 30-day expiration, and the system automatically locked him out of the network. Also while he was on FMLA leave, on September 9, 2009, Plaintiff received a Right to Sue letter from the EEOC.
Upon his return to work on October 15, 2009, Plaintiff provided a note from his physician, Dr. Ishkanian, who released Plaintiff to return to work stating, "Mr. Hashemian should avoid any outside activity and unnecessary stress since he still suffers from angina pectoris." Prior to his arrival at work he was seen by Occupational Physicians Services ("OPS"). OPS conducted a thorough review of Plaintiff's medical history, conducted a physical examination, reviewed Plaintiff's job description, and determined Plaintiff could return to work with the restrictions set forth in Dr. Ishkanian's return to work note.
Upon arrival at work, Plaintiff met with Scott in regard to his work restrictions. On the same day, Miller and Burris requested further clarification of Plaintiff's restrictions from Dr. Ishkanian and OPS. Plaintiff worked a complete day on October 15, 2009, but was informed he could not work again until he produced clarification of his work restrictions. On October 16, 2009, Barrow sent a letter to OPS requesting clarification of Plaintiff's restrictions. A second return to work note from Dr. Ishkanian was provided to OPS on October 20, 2009. Dr. Ishkanian explained:
My patient Mr. Farhad Hashemian still suffers from partially blocked arteries. Exposure to cold weather will worsen his condition. He should refrain from outdoor related activities at all times. Mr. Hashemian's job description does not make any direct reference to outdoor work or related assignments, therefore he can perform his duties with the exception of the restriction mentioned above. Unnecessary stress is also not good for his condition. This being any type of stress outside the routine and expected work. Imposing unreasonable deadlines can create unnecessary stress to any worker.
OPS noted on October 23, 2009, that the time limit of the restrictions had been clarified and the restrictions were permanent.
Plaintiff worked at LRAA from October 22, 2009, until November 4, 2009. During this time LRAA took no further action regarding Plaintiff's work restrictions. On November 3, 2009, Miller, Scott, and Barrow met to discuss Plaintiff's restrictions. They determined that, with Louisville experiencing temperatures below forty degrees for approximately five months out of the year, LRAA could not accommodate Plaintiff's restrictions without causing undue hardship on other individuals in the Engineering Department and economic hardship on LRAA. Because there were no open positions for which Plaintiff was qualified, the decision was made to terminate him. That same day, per standard procedure for involuntary terminations, Barrow requested that Petty dispatch a Public Safety Officer to the Administration Building the next day for Plaintiff's termination.
On the morning of November 4, 2009, Dwight Clayton observed Plaintiff arrive at work carrying two large, heavy duffel bags that he believed resembled gun cases. Clayton later observed Plaintiff sitting along the wall for a monthly staff meeting, which he found unusual because Plaintiff usually sat in the middle of the room. Clayton informed Petty that Plaintiff was acting abnormally. Thereafter, shortly after 8:00 a.m., Petty ordered a canine sweep of the Engineering Department and the parking lot as a precautionary measure. The sweep lasted between fifteen and twenty minutes and was conducted while employees attended the monthly staff meeting. Plaintiff was unaware of the canine sweep until months later, when informed by an acquaintance who had heard that Plaintiff's "bags and office" were searched while he was being terminated.
Later that day, at approximately 11:30 a.m., Scott led Plaintiff to a conference room where he was terminated in the presence of Barrow and Scott. Plaintiff was given a letter of termination which stated in part, "[Plaintiff's] permanent work restrictions prevent [Plaintiff] from fulfilling a significant amount of the essential duties and responsibilities needed in the position of Environmental Manger." Plaintiff alleges that neither the letter, nor Barrow or Scott, provided examples of how Plaintiff's permanent work restrictions prevented him from fulfilling a significant amount of his essential duties and responsibilities.
After his termination, upon return to his office, Plaintiff was instructed to pack up and leave within ten minutes and anything of his left behind would be shipped to him. Plaintiff alleges Scott and Barrow "offered no expression of empathy, humanity or any concern for [Plaintiff]." Plaintiff alleges his termination was very different from the termination of other employees who were terminated at the end of the day and allowed sufficient time to collect their belongings. Plaintiff further alleges he was not offered severance or extended medical insurance.
Plaintiff filed the instant action on December 10, 2009, against LRAA. Plaintiff also named C.T. Miller, Executive Director; Michael Burris, Deputy Executive Director Finance and Administration; Janet Barrow, Director of Human Resources; and Karen Scott, Deputy Executive Director of Engineering and Planning, each in their individual and representative capacities. Plaintiff amended his complaint on March 25, 2010 and added Steve Petty, Director of Public Safety, as a defendant both in his individual and representative capacity. On July 28, 2010, the Court dismissed a portion of Plaintiff's claims, but eleven remain outstanding at this stage of the litigation. Defendants now move for summary judgment on Plaintiff's remaining eleven claims.
Summary judgment is appropriate where "the movant shows 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; 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: "[t]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary ...