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Sharp v. Aker Plant Services Group, Inc.

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

March 14, 2014

TOMMY D. SHARP, Plaintiffs,
v.
AKER PLANT SERVICES GROUP, INC., Defendant.

MEMORANDUM OPINION

CHARLES R. SIMPSON III, Senior District Judge.

This matter is before the Court on the following motions:

1) a motion for summary judgment filed by Defendant Aker Plant Services Group, Inc. ("Aker") (DN 25);
2) a motion by Plaintiff Tommy D. Sharp ("Sharp") to set aside our September 9, 2013, Order (DN 43) granting summary judgment in favor of Aker;
3) a motion by Aker for reconsideration (DN 48) of our September 9, 2013, Memorandum Opinion and Order (DNs 42, 43), granting Sharp's Motion to Amend Complaint (DN 34).

For the reasons set forth below, the Court will grant the motion to set aside as well as the motion for summary judgment. As explained below, this disposition will moot the motion for reconsideration.

BACKGROUND

Unless otherwise indicated, the following facts are undisputed. Aker provides manufacturing companies with technology products as well as engineering, procurement, and construction management services. One of Aker's customers, E.I. DuPont deNemours and Company ("DuPont"), operates a plant in Louisville, Kentucky, where Aker maintains a team of employees. In 2003, Sharp was hired by Aker as a contract employee. In 2005, Sharp was hired by Aker as a full-time Electrical and Instrumentation Designer working exclusively at the Louisville plant. In 2008 and 2009, Sharp and several other Aker employees were laid off due to a reduction in Aker's business. When Sharp's supervisor Michael Hudson ("Hudson") informed Sharp of his termination, Hudson allegedly mentioned that age was a motivating factor in the decision. This conversation prompted Sharp to bring an audio-recording device the following Monday to secretly record a second conversation with Hudson. During the conversation, Sharp successfully prompted Hudson to once again admit that age was a motivating factor in Aker's decision to terminate him.

After having obtained the recording, Sharp filed an action (the "wrongful discharge action") in Jefferson County Circuit Court alleging that Aker fired him based on his age in violation of the Kentucky Civil Rights Act ("KCRA"). On June 17, 2009, Aker removed the action on the basis diversity jurisdiction and shortly thereafter moved for summary judgment. On July 7, 2010, while the motion for summary judgment was still pending, Sharp applied for reemployment with Aker as an Electrical Designer through BRowland Technical Staffing ("BRowland"). Later that day, BRowland emailed Aker's Recruiting Consultant Jim Hobsetter ("Hobsetter") to inquire about Sharp's application. In turn, Hobsetter emailed Aker's Senior Manager of Human Resources Scott Atkins ("Atkins") asking whether Aker would be interested in hiring Sharp. On July 8, 2010, Atkins responded 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 violations on its property so, unfortunately, we will not be able to consider Mr. Sharp for this role.

(Email, DN 25-1, at 15).

On April 22, 2011, Sharp filed an EEOC complaint alleging that Aker unlawfully retaliated against him by refusing to hire him because he had filed an age-discrimination action against them. When the Equal Employment Opportunity Commission ("EEOC") dismissed his complaint on September 19, 2011, Sharp filed the present action (the "retaliation action") on January 23, 2012, alleging retaliation in violation of the Age Discrimination in Employment Act ("ADEA"). On January 15, 2013, Aker filed a motion for summary judgment (DN 25), arguing that Sharp had failed to establish prima facie case of retaliation. Subsequently, Aker moved to supplement its motion for summary judgment (DN 32), arguing additionally that the action was not timely filed within 90 days of Sharp's receipt of his right-to-sue letter from the EEOC. Upon the filing of Aker's motion to supplement, Sharp moved to amend his complaint to assert a claim of retaliation under the Kentucky Civil Rights Act ("KCRA").

On September 9, 2013, we granted both the motion to amend complaint as well as the motion for summary judgment. In granting the motion to amend complaint, we held that "Aker will suffer no prejudice from Sharp's amendment" because "[t]he factual premise of the retaliation claim changes not a whit by the invocation of [the KCRA]." (Memorandum Opinion, DN 42, at 4). In granting the motion for summary judgment, we held that Sharp's action was time-barred because he had failed to file his ADEA claim within 90 days of receiving his right-to-sue letter from the EEOC. (Memorandum Opinion, DN 42, at 6).

On September 26, 2013, Sharp filed a motion to set aside (DN 47) the order granting Aker's Motion for Summary Judgment on the grounds that there was a mutual mistake regarding the date Sharp received his right-to-sue letter from the EEOC. In its response brief, Aker acknowledges the mistake and concedes that the order granting summary judgment should be set aside. Concurrently, however, Aker has moved for reconsideration (DN 48) of our order granting Sharp's Motion to Amend Complaint. According to Aker, because that ruling was based on the Court's understanding that ...


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