TOMMY D. SHARP, Plaintiff,
AKER PLANT SERVICES GROUP, INC., Defendant.
CHARLES R. SIMPSON, III, Senior District Judge.
This matter is before the court for consideration of the following motions:
(1) Motion of the defendant, Aker Plant Services Group, Inc. ("Aker"), for summary judgment (DN 25).
(2) Motion of Aker for leave to file a supplemental brief in support of its motion for summary judgment (DN 32).
(3) Motion of the plaintiff, Tommy D. Sharp ("Sharp"), to amend the complaint (DN 34).
(4) Motion of Sharp for a status conference (DN 37).
Aker provides technology products and engineering, procurement, and construction management services for manufacturing companies. One of Aker's customers, E.I. DuPont de Nemours and Company (DuPont), operates a plant in Louisville, Kentucky, where Aker maintains a team of employees. At the time relevant to this litigation Aker's Louisville site team consisted of the site project manager, Mike Hudson; Tommy Sharp, who was one of four electrical and instrumentation (E & I) designers, and various other individuals.
Sharp began working for Aker as a contract employee in 2003. He was hired as an Aker employee in January 2005 and worked exclusively at the Louisville plant. In 2008 and 2009, several Aker employees, including Sharp, were laid off due to a downturn in Aker's business. Sharp, who was 52 years old at the time, contends that he was eliminated because of his age. Sharp's main contention is that his termination was a direct result of Mike Hudson's decision to train a younger employee, rather than Sharp, to replace lead designer Larry Ash.
The key piece of evidence for Sharp consists of two conversations with Hudson that occurred in 2009 after Sharp was told he would be laid off. When Hudson informed Sharp of his termination on January 15, 2009, Hudson mentioned that age played a factor in the decision. The conversation prompted Sharp to bring in an audio-recording device the following Monday to secretly record a second conversation with Hudson. Sharp obtained the recording in which Hudson again discussed age as a factor in the layoff decision.
Sharp then filed a complaint in Kentucky state court alleging that Aker fired him based on age, in violation of the Kentucky Civil Rights Act, KRS Chapter 344. (referred to herein as the "09 case"). Aker removed the case to this court under our diversity jurisdiction and moved for summary judgment. This court granted Aker's motion, finding that Hudson's comments did not reflect age bias, but rather a concern for maximizing the return on training costs by retaining employees who would stay with the company longer. Sharp appealed.
The United States Court of Appeals for the Sixth Circuit reversed, noting that the most important piece of evidence concerning impermissible motive was the transcript of Hudson's conversation with Sharp. The Court of Appeals concluded that Sharp had offered direct evidence that, if believed by the jury, proved that age was the reason Aker fired him. The court stated, "Certainly there are other explanations, but the true reason for termination is a question that cannot be answered as a matter of law." The 09 case is now back before this court on remand for further proceedings. However, the 09 matter is not the subject of this opinion.
Hudson and Aker's HR Director, Scott Atkins, gave statements by deposition and affidavit during discovery in the 09 case. Aker filed its summary judgment motion in May, 2010. On July 7, 2010 while summary judgment was pending, Sharp applied for reemployment with Aker. Atkins received an email on July 8, 2010 from the staffing agency to which Sharp had applied. He responded to the agency that he would not consider Sharp for reemployment, stating:
Yes, we do know Tom. He does acceptable work as a designer, but he violated a DuPont mandate on the use of electronic recording devices on company property when last employed here. There are combustible materials in the plant that can potentially be ignited by the use of cell phones, recorders, cameras, etc... DuPont maintains a zero-tolerance approach to safety ...