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Farmer v. Dixon Electrical Systems and Contracting, Inc.

United States District Court, Sixth Circuit

May 31, 2013

CARLENE L. FARMER, Plaintiff,
v.
DIXON ELECTRICAL SYSTEMS AND CONTRACTING, INC., et al., Defendants.

MEMORANDUM OPINION AND ORDER

AMUL R. THAPAR, District Judge.

Carlene Farmer, a journeyman electrician, was fired for smoking at the construction site for a new Kentucky hospital. She was caught lighting up near the future ventilation system, a mandatory no-smoking area. Her employer, Dixon Electrical Systems and Contracting, Inc., would have preferred to keep Farmer as an employee. But the general contractor, Turner Construction Company, wanted her removed from the site. Since Dixon had no other jobs in the area, it was forced to terminate her. Farmer now claims that she suffered constant humiliation because the site used half portalets, and that she was fired because she complained about their use. The defendants are entitled to summary judgment because Farmer cannot show that her embarrassment or termination were the result of any legal wrong.

BACKGROUND

This case begins with the construction of a new hospital at the University of Kentucky. Defendant Turner Construction Company was charged with constructing the new hospital, and Turner subcontracted with defendant Dixon Electrical Systems to perform electrical work on the project. R. 1-2 at 4 ¶¶ 7, 9. Dixon then hired Farmer as an electrician. Id. at 4 ¶ 6. That employment relationship lasted slightly under six months, when Farmer was fired for smoking at the site. After her termination, Farmer filed an EEOC claim alleging a hostile work environment and retaliation.

A. The Portalets

During construction of the hospital, male employees used portable urinals ("portalets").[1] Id. at 4 ¶¶ 10-11. Farmer and other female workers used the restrooms in Turner's trailer. R. 63 at 29. The portalets at the site looked like regular porta potties except that they were not enclosed on top and had an additional external trough in the back in which men could urinate. R. 59-5; R. 66 at 8. During her work with Dixon, Farmer often witnessed her male co-workers urinating in the portalets. R. 1-2 at ¶ 11. She also saw her coworkers genitals on up to six or seven occasions. Twice she accidentally saw a male coworker's genitals, and four or five times she might have caught a glimpse of genitalia out of the corner of her eye. R. 63 at 38-40. And, while Farmer could choose to look away from the portalets, she did have to work in their vicinity and walk by them while her male coworkers were urinating. Id. at 36-37. On several occasions, she caught male employees looking at her while they were urinating. Id. at 30.

Dixon's equal employment opportunity policy instructed employees to report any perceived discrimination to Dixon Safety Director Craig Pinkerton and to direct questions to Dixon's owner, Sean Dixon, or several other Dixon managers. Id. at 17. Similarly, employees were directed to report any sexual harassment to Pinkerton, Dixon, or specific managers. Id. But Farmer did not notify any of these individuals of her complaints. Instead, she told Turner Safety Coordinator Dave Busch that she had never seen this type of portalet before and that their use was humiliating to her and the male employees. Id. at 43. She also had several conversations about the portalets with Dixon employees. Farmer told foreman Anthony McDavid and Al Burton that she could not believe the site used the portalets, and that men had urinated in front of her. Id. She told her union business agent and Dixon foreman Randy Marshall that the portalets were embarrassing and humiliating. Id. at 42-46. And she complained to Dixon foreman Todd Gardner that she was getting "flashed" by male employees. Id. at 43.

B. Farmer's Termination

Employees were not allowed to smoke inside the construction site. Initially, the site had a progressive discipline policy for employees who were caught smoking. R. 67 at 6. But in early November 2009, a university representative visited the site and reprimanded management for the evidence of cigarette smoking on the third floor, near the hospital's future ventilation system. R. 63 at 24-25; R. 66 at 14; R. 68 at 16. The representative worried that these systems would be contaminated by cigarette smoke. R. 63 at 24; R. 67 at 6. So Turner instituted an automatic termination policy for employees caught smoking on the third floor. R. 64 at 8; R. 67 at 6-7; R. 68 at 16-17. A few days later, Busch caught Farmer smoking on the third floor. R. 63 at 26-28. So Turner asked Dixon to permanently remove Farmer from the site. Id. Dixon did so, and then terminated Farmer because it had no other available jobs in the area. R. 78-6 at 2 3 ¶ 7.

Farmer then filed an EEOC charge alleging that the use of the portalets violated her civil rights. The EEOC investigated and issued a right to sue letter. R. 90-4. Farmer then filed this lawsuit alleging violations of her civil rights under Title VII and the Kentucky Civil Rights Act, intentional infliction of emotional distress, negligence, and negligent supervision and training. R. 21. She seeks compensatory and punitive damages. Id. The defendants now move for summary judgment. R. 59; R. 78.

ANALYSIS

The defendants are entitled to summary judgment on a claim if they can show that there is no genuine dispute over the material facts underlying the claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court must decide whether a reasonable juror could find for Farmer on each of her claims when all reasonable inferences from the evidence are drawn in her favor. See Scott v. Harris, 550 U.S. 372, 380 (2007). But even this generous standard cannot save Farmer's claims from summary judgment.

I. The Defendants Are Entitled to Summary Judgment on Farmer's Claim of Gender Discrimination

The Kentucky Civil Rights Act ("KCRA") is interpreted consistently with Title VII, so Farmer's state and federal civil rights claims can be analyzed together. See Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 821 (Ky. 1992) (holding that the language of the KCRA generally "tracks the language of Title VII and, thus, should be interpreted consonant with federal [law]"); see also Campell v. EQT Prod. Co., No. 10-cv-151-GFVT, 2011 WL 3475385, at *2 (E.D. Ky. Aug. 8, 2011) ("Courts interpret [the KCRA] consistent with Title VII... and look to federal case law construing Title VII when deciding cases brought under the Kentucky statute."). ...


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