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Harris v. Burger King Corp.

United States District Court, W.D. Kentucky

January 8, 2014


Decided January 7, 2014.

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For Marilyn Harris, Plaintiff: Carlmann S. Bowman, Louisville, KY; Ninamary Buba Maginnis, Maginnis Law Office, Louisville, KY.

For Burger King Corporation, Defendant: Katharine C. Weber, Jackson Lewis LLP - Cincinnati, Cincinnati, OH.


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John G. Heyburn II, United States District Judge.

This action arises from Plaintiff Marilyn Harris's employment with Defendant Burger King Corporation as a part-time cook. Her claims include: racial discrimination, retaliation, and racially hostile work environment, in violation of the Kentucky Civil Rights Act (KCRA); wrongful discharge; promissory estoppel; and negligence. After the close of discovery, Defendant moved for summary judgment on all of Plaintiff's claims.

This is a case in which, if everything she says is true, Plaintiff was treated very badly by one of her store managers. Other than Plaintiff's own beliefs, the Court finds no evidence of a racial motive behind the rude behavior. Plaintiff left her job as a part-time cook to have a medical procedure, believing that she had been promised a job upon her return. She did not return for eight months, at which time no job was available. The Court finds no evidence of discrimination or retaliation in these events. For the reasons stated below, the Court will sustain Defendant's motion.


The relevant facts are as follows. On November 29, 2005, Plaintiff began work as a part-time cook at Defendant's Hillview location, earning $6.75 per hour.[1] Plaintiff is African-American. In June 2006, Plaintiff suffered heat exhaustion at work. She filed a workers' compensation claim, but it was denied because she failed to submit to a drug test within twenty-four hours of the incident. Plaintiff asserts that she was never told about the test.

In December 2006, Gina Priest became the new manager at the Hillview store. Ms. Priest and Plaintiff did not get along. According to Plaintiff, the following events occurred between December 2006 and February 2007. Generally, Ms. Priest would not talk to Plaintiff or other minority employees but did talk to white employees. Ms. Priest also yelled at Plaintiff in front of customers. She gave minority employees, including Plaintiff, lower marks on their " criticals" than white employees, which led to Plaintiff not receiving a raise. She reduced Plaintiff's hours and gave them to a requesting white employee. On one occasion, Plaintiff returned to work after a medical leave and Ms. Priest " screamed at her" about needing a doctor's note. Plaintiff retrieved the note from her car and returned to work. In December 2006, Ms. Priest bumped into Plaintiff and intentionally stepped on Plaintiff's foot once, and she did not apologize. She would not let Plaintiff leave work when she was heavily menstruating. When Plaintiff experienced chest pains at work, Ms. Priest ignored her symptoms, and Plaintiff's coworker drove her to the emergency room after work. In January 2007, Plaintiff did not receive a break when she felt too hot while working. Ms. Priest said, " Get back to work." As a result, Plaintiff fainted from heat exhaustion, and Plaintiff's coworker drove her to the hospital.[2]

After the heat exhaustion incident, Plaintiff sought to file a workers' compensation

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claim but was told by another manager named Amy that she could not make a claim. The reason was that Plaintiff had previously attempted to file a workers' compensation claim after a heat exhaustion episode in June 2006, which was denied because Plaintiff failed to take a urine drug test within 24 hours. Amy indicated that she thought that Plaintiff could not file a claim based on the same symptoms that had already been denied.

Finally, Ms. Priest yelled at Plaintiff while trying to locate the Burger King phone. Plaintiff asked her to not " yell at me like that . . . I'm not a child," and Ms. Priest told Plaintiff to clock out. On February 20, 2007, after this last phone incident, Plaintiff called Ryan Petty, Burger King regional manager, to report Ms. Priest's behavior. Plaintiff provided two written statements to him discussing Ms. Priest's work habits and mentioning racial discrimination.[3] Plaintiff maintains that on February 24, Mr. Petty read the statements, spoke to Ms. Priest for a few short minutes, spoke with no other Burger King employees, and determined there was no discrimination. Mr. Petty immediately offered to transfer Plaintiff to the Indian Trail Burger King. She reluctantly accepted and transferred that same day.

At the Indian Trail store, Plaintiff did not experience any further discriminatory behavior. In March 2007, Plaintiff underwent a surgical procedure necessitating time off work. She verbally informed Mr. Petty of this surgery on the date of her transfer, and according to Plaintiff, Mr. Petty told her that she could have her job back after her surgery and recuperation. Plaintiff also claims that she verbally informed her new boss Bisera Advic of her surgery and provided shift manager Christy with a note Plaintiff had written giving two weeks' notice of her surgery, which was then passed on to Ms. Advic. Plaintiff insists that Ms. Advic also promised that she could have her job back after her surgery. Plaintiff claims that she called to check in with her manager Ms. Advic once or twice per week during her recuperation to report her progress and discuss her job.

On May 24, 2007, Burger King's automated time records coded Plaintiff as having abandoned her position and terminated her. In November 2007, Plaintiff returned to the Indian Trail Burger King with a doctor's note authorizing her to begin work. Ms. Advic told her there was no work for her. She had been replaced by a white employee named Dennis. A few weeks later, Plaintiff got a job with Ramada Inn earning more per hour than she had earned at Burger King.


Plaintiff alleged the following unlawful activities against Defendant: race discrimination in violation of KRS § 344.040; retaliation for reporting racial discrimination in violation of KRS § 344.280; retaliation for filing a workers' compensation claim in violation of KRS § 342.197; [4] racially hostile work environment; wrongful discharge; promissory estoppel; and gross negligence. Defendant moves for summary judgment 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

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to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

The movant must show that there is no genuine issue 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, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once accomplished, the nonmoving party can overcome summary judgment by controverting the movant's argument with specific facts. Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 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 must view the record and make inferences from the alleged facts in the light most favorable to the nonmoving party. Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 339 (6th Cir. 2008). The Court will now address Defendant's argument in favor of summary judgment as to each of Plaintiff's claims.


The Court will first address Plaintiff's claim under the KCRA for racial discrimination. In this case, there is no direct evidence of discrimination. Absent such evidence, the Sixth Circuit and Kentucky have adopted the McDonnell Douglas burden shifting scheme to determine whether a discrimination claim should be submitted to a jury based on circumstantial evidence. Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky. 2005) (applying McDonnell Douglas to racial discrimination); Brooks v. Lexington-Fayette Urban Cnty. Hous. Auth., 132 S.W.3d 790, 801-02 (Ky. 2004) (applying to retaliation); Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009) (applying to racially hostile work environment).

Under this framework, the plaintiff must first establish a prima facie case of race discrimination. White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008). A prima facie case for racial discrimination in the employment context requires the plaintiff to prove: " (1) [she] is a member of a protected class; (2) [she] was qualified for [her] job; (3) [she] suffered an adverse employment decision; and (4) [she] was replaced by a person outside the protected class or treated differently than similarly situated non-protected employees." Id. ...

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