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Moss v. Pennyrile Rural Electric Cooperative

United States District Court, W.D. Kentucky, Bowling Green Division

March 19, 2014

BOBBY MOSS, Plaintiff,


THOMAS B. RUSSELL, District Judge.

This matter is before the Court upon the Motion for Summary Judgment of Defendant Pennyrile Rural Electric Cooperative ("Pennyrile"), (Docket No. 33). Pennyrile has also submitted a Motion for Judgment on the Pleadings, (Docket No. 31). Moss has responded, (Docket No. 39), and Pennyrile has replied, (Docket No. 46). Fully briefed, this matter is now ripe for adjudication. For the following reasons, Pennyrile's Motion for Judgment on the Pleadings will be GRANTED.

Factual Background

Moss was hired as a warehouseman in Pennyrile's Russellville office on April 30, 1990; he worked for the company until his termination on September 16, 2011. (Docket No. 1 at 2.) Moss filed an EEOC complaint alleging violation of the Americans with Disabilities Act, retaliation, and disability on December 5, 2011. The EEOC issued a Right to Sue letter on August 22, 2012. Moss now alleges that Pennyrile transferred and terminated him in violation of the Americans with Disabilities Act.[1] (Docket No. 1 at 7-10.)

Moss claims that during his twenty-one years of employment at Pennyrile, he was reprimanded on only one occasion before being diagnosed with a non-malignant brain tumor in August 2008. (Docket No. 1 at 2.) Moss alleges that his work life deteriorated dramatically upon his diagnosis, as Pennyrile began to treat him with antagonism. After three months of sick leave, Moss underwent surgery to remove the tumor on October 2008. (Docket No. 1 at 3.) He returned to work on November 26, 2008. (Docket No. 1 at 3.) On December 26, 2009, he suffered a grand mal seizure. He returned to work on January 4, 2010, but was unable to operate a vehicle for three months following his seizure. (Docket No. 1 at 3.) Although his job description required a Commercial Driver's License ("CDL") for which he was no longer eligible, he was permitted to return to work with no changes in pay or benefits.

Moss points to various incidents that he alleges amount to violation of his rights. On March 5, 2010, he was reprimanded for allegedly revealing the salary of a Pennyrile engineer in violation of the company policies, which demand confidentiality regarding employee salaries. (Docket No. 1 at 3.) He was suspended for three days without pay and was written up for breaking company policy. (Docket No. 1 at 4.)

Upon returning to work on March 11, 2010, Moss was disallowed from entering the lineman's quarters and from attending safety meetings. (Docket No. 1 at 3.) Moss also notes that he alone was allowed to enter his office or use his computer, to the exclusion of other employees. (Docket No. 1 at 4.)

In May 2010, Todd Adler, a Pennyrile engineer, entered Moss's office and used his computer. (Docket No. 1 at 4.) The next day, Mark Wilkins, the Russellville district office manager, told Moss that if he dropped his complaint that Adler had used his computer, no action would be taken against him. Moss then abandoned his complaint. (Docket No. 1 at 4.)

On May 10, 2010, Moss learned that he was again being written up for "complaining about petty things"; as a result, he was suspended for five days without pay and cautioned to let Pennyrile's management oversee the warehouse's day-to-day operations and personnel issues. (Docket No. 1 at 4.)

Moss later informed supervisors that he was occasionally unable to release the parking brake on the warehouse forklift because other employees were readjusting it. (Docket No. 1 at 4.) Moss alleges that Eston Glover, President and CEO of Pennyrile, mocked his inability to set the forklift brake. (Docket No. 1 at 5.) When Moss explained that his brain surgery left him weak, Glover allegedly told Moss that he would be terminated if he submitted any additional complaints. (Docket No. 1 at 5.) Moss alleges that he was "retaliated against, mocked, and harassed in regard to his inability to release the forklift brake." (Docket No. 1 at 5.)

Moss encountered numerous personal issues with his coworkers, many of them minor; Pennyrile's impression of Moss was that he was an "agitator" who "like[d] to watch and report and cause trouble for other employees, " peeking through windows doors to watch his coworkers. (Docket No. 32-7 at 5.) For example, on May 13, 2010, as Moss was attempting to leave the Pennyrile premises through the company's traffic gate, two Pennyrile employees-James Dossett and Phillip Adler-were apparently blocking the gates with their vehicles as they conversed with each other. As a result, Moss and those in the traffic line behind him were unable to exit the premises. Moss called Wilkins, reporting that although those involved had said nothing to him, he felt threatened and wanted to contact the local sheriff's office. The situation was resolved without the involvement of law enforcement when Dossett moved his vehicle a short time later. (Docket No. 1 at 6.)

Largely as a result of Moss's repeated complaints and reports, on May 20, 2011, he was relocated to Pennyrile's Hopkinsville office. (Docket No. 1 at 6.) Pennyrile explains that this move resulted from Moss's ongoing personal issues with his coworkers and was designed to "eliminate the Russellville men from Bobby's worksite, allowing his fears to be removed." (Docket No 32-2, Exh. 21.) Additionally, the Hopkinsville warehouse was undergoing a reorganization and needed additional men to expedite the process. (Docket No 32-2, Exh. 21.) However, when Moss reported to work at the Hopkinsville warehouse, he immediately refused to perform certain tasks that other warehousemen performed, including mopping the floor and mowing the grass. (Docket No. 32-1 at 16.)

When the Hopkinsville reorganization was complete, Pennyrile management opted to transfer Moss to Cadiz rather than returning him to Russellville. Pennyrile indicates that he was transferred in an effort to find appropriate work for him, not for punitive reasons; the company notes that Moss suffered no reduction in pay or benefits. (Docket No. 32-1 at 18.) Moss's complaints resumed upon beginning his tenure at Cadiz: he complained of spiders, refused to move heavy objects, and said that his medication left him drowsy and unable to work. (Docket No. 32-2, Exh. 25.) Additionally, Moss allegedly made threatening statements resulting from his conversation with Glover regarding the forklift over a year earlier, warning that "[Glover] is going to pay for that." (Docket No. 32-7 at 16.) He also allegedly threatened to have Pennyrile's entire Board of Directors replaced. (Docket No. 32-7 at 16.)

During a meeting on September 16, 2011, Pennyrile management initiated a meeting to review Moss's work history, inquire into his repeated complaints, and clarify the threats to Glover and the Board of Directors. (Docket No. 32-1 at 19.) When Moss refused to provide satisfactory answers, he was given the option to either resign or be terminated. The meeting ended in Moss's termination. (Docket No. 32-1 at 20.) Glover testified that although he did not begin the meeting with the intention of firing Moss, "when you got a person there that you have got probably fifty people that have ...

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