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Bzura v. Lumber Liquidators, Inc.

United States District Court, W.D. Kentucky, Louisville

February 27, 2014

DAVID M. BZURA, Plaintiff,


CHARLES R. SIMPSON, III, Senior District Judge.

This matter is before the court on the motion of the defendants, Lumber Liquidators, Inc., [1] James Davis, and Jamie Craig (collectively, "Defendants"), to partially dismiss the complaint of the plaintiff, David M. Bzura ("Bzura"). (DN 4). Bzura has filed a response to the motion (DN 8), to which Defendants have replied (DN 10). Fully briefed, the matter is now ripe for adjudication. For the reasons stated below, the court will grant Defendants' partial motion to dismiss (DN 4).


Bzura was employed by Lumber Liquidators as a store manager from January 2005 until April 2013. According to Bzura's complaint in this action, Davis served as Lumber Liquidator's Vice President of Sales, and Craig was Lumber Liquidator's Regional Manager. Bzura maintains that Davis and Craig visited Bzura's store on separate occasions in March 2013. Bzura contends that during these visits, neither Davis nor Craig informed Bzura of any problems with the store's operations. Bzura further asserts that he served in his role as store manager "without complaint or discipline" until April 1, 2013.

In early April 2013, Bzura and the other Lumber Liquidators store managers in Bzura's region received an email from Craig that was intended only for Davis. The email contained the agenda for a conference call and included the following item: "Termination of SM in 1065 and replacing with AKBA." The parties do not dispute that "SM" is an abbreviation for "store manager, " and "1065" is the location of the Lumber Liquidators store managed by Bzura. Bzura contends that "AKBA" is an abbreviation of the phrase "ass-kicking bad ass."

After the email was sent, Craig again visited Bzura's store and gave Bzura a Corrective Action notice. The notice contained a Performance Improvement Plan that required Bzura to improve on at least 37 items by May 4, 2013. However, Craig terminated Bzura on April 30, 2013 and replaced him with someone younger in age. The parties do not dispute that Bzura was over the age of forty at all times relevant to this action.

Bzura then filed this action in Jefferson County, Kentucky, Circuit Court. Defendants removed the action to this court pursuant to our diversity jurisdiction. Bzura's complaint contains two counts. Count I alleges that Bzura was wrongfully terminated by Defendants due to his age in violation of the Kentucky Civil Rights Act ("KCRA"), KRS §§ 344.010 et seq. Count II alleges that Defendants engaged in a conspiracy to violate the KCRA when they terminated Bzura because of his age. For their part, Defendants maintain that Bzura was terminated for a legitimate, non-discriminatory reason. Defendants deny that they engaged in any unlawful conduct with regard to Bzura or his employment with Lumber Liquidators. Defendants have moved to dismiss Count I as to the age discrimination claims asserted against Davis and Craig. Defendants seek to dismiss Count II as to each defendant.


A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). During the pleading stage, the plaintiff must provide factual allegations that are "enough to raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must "construe the complaint in the light most favorable to plaintiff" and "accept all well-pled factual allegations as true[.]" Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (internal marks omitted) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009); League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007)). Yet, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, " and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft, 556 U.S. at 678 (citation omitted). "[T]o survive a motion to dismiss, the complaint must contain either direct or inferential allegations respecting all material elements" of the offense. In re Travel Agent Comm'n Antitrust Litig., 583 F.3d 896, 903 (6th Cir. 2009) (citation omitted).


A. Count I: Age Discrimination

Defendants argue that the court should dismiss Count I as to Davis and Craig (hereinafter, the "Individual Defendants") because individual employees cannot be held liable under the KCRA for claims based on discrimination. Pursuant to the KCRA, it is an unlawful practice for an employer "to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual's... age forty (40) and over[.]" KRS § 344.040(1)(a). The KCRA defines an "employer" as "a person who has eight (8) or more employees within the state in each of twenty (20) or more calendar weeks in the current or preceding calendar year and an agent of such a person [.]" Id. § 344.030(2) (emphasis added).

The Individual Defendants argue that they are not "employers, " as defined by KRS § 344.030(2), nor are they "agents" of an employer. They contend that the Sixth Circuit, the Kentucky Court of Appeals, and this court have each held that individual agents or supervisors who do not qualify as employers may not be held personally liable under either the KCRA or Title VII. See Wathen v. Gen. Elec. Co., 115 F.3d 400, 404-05 (6th Cir. 1997) (holding that "an individual employee/supervisor, who does not otherwise qualify as an employer, ' may not be held personally liable under Title VII, " and applying this holding to the KCRA "[b]ecause KRS Chapter 344 mirrors Title VII"); Conner v. Patton, 133 S.W.3d 491, 493 (Ky. Ct. App. 2004) ("[I]ndividual agents or supervisors who do not otherwise qualify as employers cannot be held personally liable in their individual capacities under KRS Chapter 344."); Walker v. MDM Servs. Corp., 997 F.Supp. 822, 823-24 ...

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