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Berry v. Maker's Mark Distillery, Inc.

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

April 30, 2014

PATTI M. BERRY, et. al. Plaintiffs,


JOSEPH H. McKINLEY, Jr., Chief District Judge.

This matter is before the Court on Defendant Maker's Mark Distillery, Inc.'s Motion for Summary Judgment [DN 24] and Motion to Exceed Page Limitations [DN 54]. Fully briefed, these matters are ripe for decision.


This case arises out of multiple claims by former and current employees of Defendant Maker's Mark Distillery, Inc. ("Maker's Mark). The plaintiffs in this action include Patti M. Berry (Berry), [1] Courtney R. Clark ("Clark"), Christy L. Fogle ("Fogle"), Bonnie L. Mills ("Mills"), and Mary Thompson ("Thompson") (collectively "Plaintiffs"). On May 16, 2011, Plaintiffs filed EEOC claims against Defendant Maker's Mark. Plaintiffs maintain claims based on (1) hostile work environment; (2) gender discrimination; (3) religious discrimination; and (4) retaliation in violation of Title VII of the Civil rights Act of 1964, 42 U.S.C. § 2000e ("Title VII") and the Kentucky Civil Rights Act, KRS 344.010 et seq. (the "KCRA"). Also, Fogle asserts an interference and a retaliation claim under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"). Clark, Fogle, Mills, and Thompson remain employed with Maker's Mark. Berry was terminated

A. Bottling-Line Forklift Rotation

At some point in the latter part of 2010, Dale Miles ("Miles"), bottling line supervisor, and Brian Mattingly ("Mattingly"), Director of Bottling and Warehousing Operations, altered the forklift rotation at the bottling-line facility by switching it from a 30 minute rotation to a weekly rotation job. Prior to the change, employees in the bottling area of Maker's Mark worked 30minute rotations for each job on the two lines, designated as Line A and Line B. The tasks on each line included dipping bottles, casing the bottles, and operating the forklift. The forklift rotation did not offer additional compensation or benefits. However, Miles and Mattingly took the forklift work out of the 30-minute rotation in order to address employee complaints about not wanting to drive the forklift and to improve efficiency. In order to determine which employees wanted to drive the forklift on the new weekly rotation, Miles posted a sign-up sheet.

Berry and Fogle signed the sheet indicating that they would like to continue to drive the forklift. According to Berry, even though she was qualified to use the forklift and wanted to operate it, Miles would skip over her when it was her turn to operate the forklift. [Berry Dep., DN 49-1, at 6]. Fogle similarly indicated that she was skipped on the weekly rotation. [Fogle Dep., DN 44-1, at 9]. Mills operated the forklift until January of 2010 when she asked to be taken off the rotation due to health issues with a family member. [Mills Dep., DN 24-7, at 16].[2] Thompson decided not to operate the forklift because she felt that she was unfairly harassed while operating it. [Thompson Dep., DN 24-8, at 19]. Clark asked to operate the forklift in 2010, but it is not clear if she actually signed the sheet to operate it on the weekly rotation. [Clark Dep., DN 47-1, at 8]. Additionally, Clark first asked to be trained on the forklift in 2012 even though she said that she had expressed interest in the position prior to that time. Id. at 9.

B. The Oliver Group Survey

Defendant Maker's Mark utilizes an independent company every other year to administer a survey of its employees, excluding supervisors and temporary workers. In October of 2010, Daniel Johnsen ("Johnsen") from the Oliver Group proctored a survey-not taken in the presence of any member of management-during working hours at the Maker's Mark clubhouse. The survey did not provide a line for employees to identify themselves by name, but it did have a place for employees to identify their department and to choose a range of years in which they had been employed with Defendant. The Oliver Group gave Maker's Mark general feedback based on the surveys, but they did not provide the actual surveys to Defendant.

Berry, Thompson, and Mills completed the October survey, but Fogle and Clark did not take part in it. After receiving feedback in the early part of 2011, Maker's Mark invited Johnsen to discuss the survey and to answer any questions that employees had concerning the results of the survey. While there were no members of management present during these meetings held on March 31 and April 1, 2011, Plaintiffs contend that supervisors would have known who attended the meetings since they were held during business hours. Berry and Mills attended these meetings. Although Fogle did not participate in the survey, she attended the meetings. At the meetings, Berry said she spoke about harassment at the workplace and about favoritism. [Berry Dep., DN 49-1, at 15]. Fogle privately met with Johnsen to tell him about the sexual harassment in her work area as well as men and women being treated differently. [Fogle Dep., DN 44-1, at 11-12]. Thompson did not attend the meetings, but she chose to meet with Johnsen privately, and she informed him of the favoritism at Marker's Mark and the "dirty talk" among employees. [Thompson Dep., DN 48-1, at 13-14]. Clark did not feel comfortable attending the meetings with Johnsen, but she called him and reported sexual harassment. [Clark Dep., DN 47, at 6-7].

After the individual and group meetings with Johnsen, he emailed Donna Lucey ("Lucey"), Victoria MacRae-Samuels, and Rob Samuels a summary of the conversations that he had over those two days. The email contained no specific references to individuals making those statements, but it did identify certain individuals who were discussed during the meetings. [April 5, 2011 Email, DN 21-14, at 2]. As it relates to this case, the summary stated that Kim Hagan, one of Maker's Mark's lead bottling line workers, was "putting people off the line for commenting on the survey" and "telling people that they shouldn't communicate." Id . It also mentioned that Mattingly had told people that "the rules are going to change" which was "taken as a threatening comment." Id . In terms of harassment, the email stated that "harassment of nonfriends of supervisors" needed to stop, and that there existed "[s]omewhat of a threatening environment, [and] some racial comments." Id . 1-2.

C. Kim Hagan's Complaint

On April 11, 2011, Hagan reported to Mattingly two recent issues that she had had with Berry. The first complaint by Hagan arose after she and other employees decided to get fish sandwiches for lunch. According to Hagan, Berry mocked her for not purchasing a sandwich for her and some of the other employees. Additionally, Hagan said that she witnessed Berry perform a suggestive dance for David Wiser ("Wiser"), a coworker, on the smoking deck. Mattingly then called Lucey, Maker's Mark former Human Resources Administrator, who asked Hagan to tell her what she had just told Mattingly about Berry. Lucey also asked if Hagan was aware of any other inappropriate conduct related to Berry. At that point, Hagan informed Lucey that Berry had exposed her breasts at work on multiple occasions. As a result of Hagan's complaint, Lucey interviewed Sherri Duvall and Stephanie Nally who confirmed that they had both witnessed Berry expose her upper body, but they did not witness the suggestive dance. [Lucey Dep., DN 42-1, at 11].

On the following day, Victoria MacRae-Samuels, Maker's Mark's Plant Manager, and Mattingly discussed with Berry the allegations made against her by Hagan and informed her that she was suspended pending a full investigation into the matters. Over the course of the next two days (April 12 and April 13, 2011), Mattingly, MacRae-Samuels, and Lucey interviewed ten employees, including Kim Hagan, Sherri Duvall, Stephany Nally, Stacy Beaven, Jill Osborne, Grace Mattingly, David Wiser, and Randy Mattingly, about Berry's alleged inappropriate conduct. [Lucey Dep., DN 42-1, at 11]. According to deposition testimony from Lucey, five of those ten employees[3] stated that they had witnessed Berry expose her breasts at the facility and three of the witnesses[4] observed Berry perform a suggestive dance for David Wiser. As a result of the investigation, Maker's Mark terminated Berry on April 14, 2011.

D. Harassment Complaint

On April 23, 2011, Fogle, Thompson, and Mills each sent MacRae-Samuels a formal letter alleging various concerns about the workplace, including unfair treatment dealing with the forklift, inappropriate language used by Hagan, Nally, and Duvall, and difficulty with Miles. Clark submitted a similar complaint on May 4, 2011. All four of the letters included a section that they were submitting the information to MacRae-Samuels in compliance with Defendant's Code of Conduct. Plaintiffs in this case have each attended in-house training concerning sexual harassment[5] in prior years and each has signed the Beam Global Code of Conduct, [6] which addresses reporting of sexual harassment.

In addition to the concerns about inappropriate language, Fogle complained in her letter that Miles failed to post an available forklift position following a vacancy created by Steve Masterson. According to Fogle's letter, Miles gave the forklift position to David Wiser even though he had less seniority than her. Fogle stated in her deposition that Miles told her that a forklift position would be posted in January 2011, but he never posted the job. However, Fogle received a part-time forklift position in June of 2011, which was posted that year. Even though Fogle received the only forklift position posted in 2011, she believes that Miles did not want to have women operating the forklift and hired men outside the normal bidding process. Additionally, she believes that Maker's Mark intentionally created a part-time forklift position, which she received, instead of a full-time position to retaliate against her. [Fogle Dep., DN 44-1, at 5].

As a result of the letters sent to MacRae-Samuels, Lucey interviewed the four individuals concerning the contents of their complaints and informed them that Maker's Mark would conduct an investigation into their allegations. Lucey then spoke to Hagan, Miles, Duvall, Nally, and Kathy Jones. Based on these interviews, Lucey found that sexual discussions were "pretty prevalent" at the workplace and that many employees in the bottling area used this type of language. [Lucey Dep., DN 43-1, at 3]. Maker's Mark did not discipline those individuals accused of having sexual discussions at the workplace, but they were told that they should no longer engage in such conversation while at work. Defendant also responded to these complaints by conducting sexual harassment training at its Loretto facility. Mills, Thompson, Clark, and Fogle all agreed during their respective depositions that the use of inappropriate language, for the most part, ended following the investigation. Lucey also interviewed Miles concerning the forklift rotation and he informed her every person on the rotation list was given equal opportunity to drive the forklift. There was no action taken by Maker's Mark regarding concerns about the forklift rotation.

E. "No Retaliation" Notice

On May 12, 2011, MacRae-Samuels and Mattingly met with Fogle, Mills, Thompson, and Clark, individually, regarding complaints that they had retaliated against other employees. According to MacRae-Samuels, the complaints came from Duvall and Nally on the morning of May 12. [MacRae-Samuels, DN 53-1, at 8]. Plaintiffs (except Berry) were each provided a "NO RETALIATIION NOTICE" on that day. Each notice documented multiple instances of alleged retaliation by Fogle, Mills, Thompson, and Clark. On the following day, MacRae-Samuels and Bob Priest, a corporate representative, met with Thompson, Mills, and Clark concerning potentially more perceived retaliatory behavior directed at Duvall, which allegedly took place after the meeting on the previous day.

F. Promotion Claims: Fogle and Clark

Fogle applied for a Bourbon Specialist (tour guide) position in November of 2011 at Maker's Mark and did not receive a job in that department. She also applied for the Management Systems and Safety Specialist position in June of 2012, but she did not receive that position either. Fogle believes that Maker's Mark hired other individuals instead of her in order to retaliate against her.

In October of 2011, Clark, a part-time employee at the time, applied for three full-time positions, two guard openings and a distillery job. As a result of these job postings, six part-time employees, including Clark, Angel Berry, Kevin Gardner, Johnny Johnson, Roxana Norris, and Chris Spalding, applied for the distillery position and five part-time employees, including Clark, Gardner, Johnson, Norris, and Spalding, sought the guard positions. Defendant decided to interview all six applicants on October 14, 2011 for the three positions that were available. Mattingly, Greg Davis, and Johnny Osborne conducted the actual interviews.

During the interviews for the positions, the applicants were asked whether they preferred a guard position or a distillery position. Of those individuals who interviewed, only Chris Spalding and Johnny Johnson indicated that they sought the guard positions. Additionally, for those individuals who wanted the distillery position, Norris and Angel Berry were the only individuals who actually went to go talk to distillery operators about the positions after their normal shift at Maker's Mark. Following the interviews, Maker's Mark hired Chris Spalding and Johnny Johnson for the two guard positions and hired Norris for the distillery position.

On October 26, 2011, Maker's Mark offered another position in the distillery. Clark also applied for that position, but Defendant hired Angel Berry. Clark believes that Maker's Mark chose not to hire her for these positions because of her sex and in retaliation for filing a Charge of Discrimination with the EEOC.

G. Fogle's FMLA

Fogle started leave under the Family Medical Leave Act ("FMLA") in October of 2011. Although the record reflects a lack of clarity as to a start and end date for Fogle's FMLA leave period, Maker's Mark contends that Fogle started her FMLA on October 11, 2011 and exhausted her leave by January 2, 2012. [Lucey Aff., DN 24-18, at 3]. Fogle appears to have received conflicting documents concerning her FMLA leave with the last document indicating a leave period extending from November 22, 2011 to January 11, 2012. [Fogle Dep., DN 44-1, at 29]. In contrast, Fogle contends that her FMLA leave did not end until February 16, 2012, and that Maker's Mark told her on February 16 not to return to work until February 20. Then, on February 20, MacRae-Samuels told Fogle that she was a day early in returning to work and that she needed to come back the next day. Id. at 28.

Upon returning to work on February 21, Fogle was told that she was going to be moved from her part-time forklift position to a part-time bottling-line job. Defendant informed her that they moved her to the bottling-line because of her absences prior to her taking FMLA leave. Although Fogle's move to the bottling-line did not affect her pay, she maintains that it impacted her seniority. Due to this change in seniority, Fogle asserts that an employee with less seniority than her was able to go home one day while she was required to stay and work. Fogle believes that she should have been given the option to stay or not because that is one of the advantages of having seniority. [Fogle Dep., DN 45-1, at 12]. However, when asked about this situation, Fogle could not actually recount a specific time that this happened.

H. Fogle's Written Warning

Even though Fogle returned to bottling-line work in February of 2012, she continued to operate the forklift on the weekly rotation. Fogle received a written warning for her performance using the forklift in March of 2012. The actual write-up did not occur until May, but Mattingly talked to Fogle concerning complaints made about her work on April 10, 2012. When asked whether this write-up related to her claims in this case, Fogle responded that they were not and that the issues were union related.


Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986).

Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence... of a genuine dispute[.]" Fed.R.Civ.P. 56(c)(1). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson , 477 U.S. at 252. It is against this standard the Court reviews the following facts.


A. Gender ...

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