United States District Court, W.D. Kentucky
Decided June 17, 2013
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[Copyrighted Material Omitted]
For Shana Perry, Damon Harper, Daryl Quiney, Plaintiffs: Charles W. Miller, Rheanne D. Falkner, Miller & Falkner, Louisville, KY.
For Autozoners, LLC, Defendant: Vasilios Manthos, LEAD ATTORNEY, The Kullman Firm, Baton Rouge, LA; Augustus S. Herbert, Middleton Reutlinger, Louisville, KY; Christine S. Goldberg, The Kullman Firm, New Orleans, LA.
John G. Heyburn II, United States District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs Shana Perry, Daryl Quiney and Damon Harper brought suit against their former employer, Defendant AutoZoners, LLC (" Autozone" )  for alleged injuries suffered during their employment. Autozone filed two motions for summary judgment. First, Autozone moved for
summary judgment against Quiney and Harper on their joint claims for racial discrimination and retaliation. In a prior order, this Court dismissed all of Quiney and Harper's claims, except for the racial discrimination claims based on their terminations. ECF No. 71.
Presently before the Court is Autozone's motion for summary judgment as to Perry's claims. After consideration of the lengthy briefs filed pursuant to this motion and oral argument by the parties, the Court will grant in part and deny in part Autozone's motion for summary judgment. The Court has also reconsidered its dismissal of the retaliation claims of Quiney and Harper. The Court will reinstate those claims premised upon their terminations.
The highly unusual and even bizarre circumstances of this case contribute to the Court's difficulty in concluding a definitive analysis. The Court summarized the facts in its first opinion. The following are more tailored to Perry's claims.
Autozone hired Perry in 1998 as a sales cashier at Store No. 603 located on Dixie Highway in Louisville, Kentucky (the " Shively Store" ). Three months later, Autozone transferred Perry to Store No. 612 located on Broadway, also in Louisville, Kentucky (the " Broadway Store" ). She worked as a sales cashier there until some point in 2008, when Autozone promoted her to Commercial Sales Specialist. In July of 2009, Perry became a member of management when Autozone promoted her to Commercial Sales Manager. During the summer of 2010, the relevant time period for this case, Mark DeHaan served as Manager of the Broadway Store.
On June 14, 2010, Perry claims to have experienced her first incident of sexual harassment when she visited the Broadway Store while off-duty. That day, DeHaan swatted her backside with a rolled up piece of paper and allegedly told Perry's daughter that he would be her new stepfather. Around two weeks later, Perry contends that DeHaan engaged in frequent and persistent sexual harassment against her in the workplace, the details of which are lengthy and unnecessary to delve into presently, because the parties do not dispute the existence and nature of the incidents. During this time, Perry would tell DeHaan to cease his unrelenting behavior. However, he did not heed her requests, as the sexual harassment continued for three weeks.
On Friday, July 23, 2010, Perry conferred with the Broadway Store Assistant Manager, co-Plaintiff Quiney, and the two decided that Perry should report DeHaan. Perry called Dawn Brandenburg, the Regional Human Resources Manager, to request a meeting without indicating the reason for it. The following Monday, July 26, 2010, Brandenburg and Perry met, and Perry divulged the particulars of DeHaan's conduct over the past month and a half. Allegedly, Brandenburg informed Perry that to carry through with the complaint against DeHaan, she must sign a written form documenting the specific allegations and acknowledging that she could be fired for her participation in the complaint. Perry agreed. She also indicated she did not feel comfortable working with DeHaan any longer, and Perry voluntarily assented to a temporary transfer to the Shively Store while Brandenburg investigated the accusations. While at the Shively Store on July 27, 2010, DeHaan called Perry to tell her that her transfer to the Shively Store was to be permanent, because Helstern had determined that her job performance was poor.
On July 29, 2010, Brandenburg conducted a formal interview with Perry. In
the interim and per Brandenburg's instructions, Perry prepared a written statement documenting DeHaan's inappropriate behavior and naming three witnesses to her harassment, two of whom are plaintiffs in the present action. Brandenburg allegedly again asked Perry to sign a document acknowledging that she could be fired for participating in the investigation. On August 3, 2010, Brandenburg interviewed Plaintiffs Quiney and Harper, who corroborated some of Perry's accounts. The following day, Brandenburg interviewed DeHaan, who admitted to much of the behavior. Brandenburg suspended DeHaan immediately. She then forwarded the documents prepared during the investigation to her supervisor, Divisional Human Resources Manager Rich Thomson, who recommended DeHaan's termination for violating Autozone's sexual harassment policy. Regional Manager Jay Campbell approved the termination, and District Manager Donnie Helstern communicated the termination to DeHaan on August 6, 2010. Days later, Helstern communicated termination notices to Quiney and Harper, allegedly as a result of their failure to promptly report the sexual harassment they had witnessed.
After DeHaan's termination, Perry returned to her position as Commercial Sales Manager at the Broadway Store under new Store Manager Jacob Limbach. She filed a charge with the Equal Employment Opportunity Commission on August 10, 2010, alleging sexual discrimination and retaliation. ECF No. 55-9. That same day, Helstern issued Perry a Corrective Action Review (" CAR" ), on which he noted that the form was a " documentation of a verbal communication" regarding her failure to timely report her own sexual harassment and apparently her failure to comply with confidentiality requirements during the investigation.
Perry claims that her employment experience over the next several months, aside from the period she was on medical leave, was difficult. She claims Autozone stripped her of her store keys even though the other managers retained theirs. She received harassing phone calls at work from employees angry at her for getting the other men fired. When she reported these incidents to Helstern, he told her to get thicker skin. According to Perry, Helstern accused her of giving parts to customers without receiving payment, and that she had special relationships with certain customers with whom she colluded to steal from Autozone.
Perry claims that Helstern called her incessantly, three to four times a day. One of these calls allegedly came before her shift began, so she would always have a message waiting for her upon arrival. Helstern would question whether she attended conference calls and spoke down to her frequently. When Perry complained about this treatment, Helstern told her that she did not have the right to question his manner of speaking to her and informed her that she could be reprimanded for insubordination. She reported Helstern's behavior to Limbach, who she claims did nothing in response.
On February 4, 2011, Perry called Brandenburg to request a transfer to the Shively Store, reasoning that she could no longer work under Helstern. Brandenburg wanted Perry to sign a formal request for transfer, but Perry refused. She claims Brandenburg would not include on the transfer request form the reason for the request, so she was unwilling to sign the document. Perry remained at the Broadway Store.
In February, Brandenburg set up a meeting with Perry and Helstern, ostensibly to discuss the communication issues
between the two. During the meeting, Helstern explained that he reigned closely over Perry because her sales numbers were low. The meeting supposedly then turned into a sort of performance review, culminating in Helstern demanding that Perry generate an Action Plan to outline her goals for improving her sales numbers. Later, Perry drafted an Action Plan, but Helstern told her it was inadequate. Around the same time, Limbach told Perry she should step down, because if she could not fulfill the goals in the Action Plan in thirty days, Helstern would fire her.
On February 11, 2011, Perry informed Limbach of her intent to resign. Limbach passed this information to Brandenburg, who called Perry to set up a meeting about her concerns. At this meeting on February 16, 2011, Perry reiterated that Helstern spoke to her like a child and was overly critical of her job performance. Apparently, Brandenburg began to set up interviews with Helstern and Limbach to investigate this matter, but on February 18, 2011, Perry clocked out and never returned to Autozone.
Perry also alleges that Autozone paid its male employees more than its female employees. As evidence, Perry provides the employment records for Quiney and Harper. Quiney was the Assistant Store Manager at the Broadway Store, in charge of " do-it-yourself" customers. Autozone hired him as an Assistant Manager in July of 2008 at a wage of $13.00 per hour. By December of 2008, his wage had increased to $13.34 per hour, and in December of 2009, Autozone paid him $15.41 per hour, a wage he maintained until his termination in August of 2010. Harper served as the Parts Sales Manager for the Broadway Store, a position evidently lower on the Autozone managerial hierarchy than Perry's position. When Autozone hired Harper in December of 2008, his pay rate was $12.00 per hour, and by January of 2009, Autozone paid him $13.50 per hour, his wage upon termination.
By contrast, Perry began her employment with Autozone as a sales clerk in May of 1998 receiving a wage of $7.50 per hour. By November of 2009, over a decade later and after she began working as a Commercial Sales Specialist, Autozone had increased her pay to $10.44 per hour. By November of 2010, when Perry served as the Commercial Sales Manager, her pay rate was $11.60 per hour, a wage she continued to earn until she left Autozone.
Perry alleged five counts of unlawful activity against Autozone: sexual discrimination, sexually hostile work environment, quid pro quo sexual harassment, retaliation, and constructive discharge. Perry brought each claim under both Title VII of the 1964 Civil Rights Act (" Title VII" ) and the Kentucky Civil Rights Act (the " KCRA" ). Autozone moves for summary judgment on each of these counts under Federal Rule of Civil Procedure 56, which entitles a party to summary judgment 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).
The moving party bears the initial burden of showing either that no dispute exists as to any material fact or that the nonmoving party cannot prove an essential element of its case for which it has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once accomplished, the nonmoving party can overcome summary judgment by controverting the moving party's arguments with specific facts. Matsushita Electrical Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
The Court need not accept unsupported or conclusory allegations. Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir. 2003). However, the Court will view the record evidence in the light most favorable to the nonmoving party. Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 339 (6th Cir. 2010). The Court will now address Autozone's arguments in favor of summary judgment as to each of Perry's claims.
Perry alleges a general claim for sexual discrimination in violation of Title VII and the KCRA, but she clarifies in her opposition brief that the basis for the claim is the differential between her wage and the wages of similarly situated male employees only under the KCRA.  Kentucky courts analyze disparate wage claims under federal law standards. Meyers v. Chapman Printing Co. Inc., 840 S.W.2d 814, 821 (Ky. 1992).
To establish a prima facie case for wage discrimination, Perry must show that: 1) Autozone paid different wages to employees of different sexes, 2) for equal work performed in positions that require equal skill, effort and responsibility, and 3) for work performed under similar working conditions. Prechtel v. Kellogg's, 2007 WL 1610575, *3 (W.D. Ky. May 31, 2007) (citing Buntin v. Breathitt Cnty. Bd. of Educ., 134 F.3d 796, 799 (6th Cir. 1998) (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974))). " 'Equal work' does not require that the jobs be identical, but only that there exist 'substantial equality of skill, effort, responsibility and working conditions.'" Buntin, 134 F.3d at 799 (quoting Odomes v. ...