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Downs v. Bel Brands USA, Inc.

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

August 25, 2014

LARRY DOWNS Plaintiff,


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

This matter is before the Court on the Motion to Dismiss [DN 16] of the Defendant, Bel Brands USA, Inc. ("Bel"). This matter is also before the Court on the Plaintiff's Motion to Enter Affidavit of Karen Roof [DN 21], as well as his Motions to Enter Affidavit of Jean-Pierre Plessis [DNs 23, 24]. Fully briefed, this matter is ripe for decision. For the following reasons, Bel's motion to dismiss [DN 16] is GRANTED. The Plaintiff's motions [DNs 21, 23, 24] are DENIED.


The Plaintiff was employed by Bel in its Leitchfield, Kentucky facility from May of 1975 until May of 2013. (Compl. [DN 1-1] ¶ 6.) During his employment, the Plaintiff held the positions of worker, assistant warehouse supervisor, and warehouse supervisor. (Id. ¶ 22.) At some point in the late 1980s to early 1990s, the Plaintiff volunteered to grade and sort old and damaged pallets. The Plaintiff organized the pallets' removal with a third-party distributor. The distributor would then sort the pallets and issue "a small reimbursement check." (Id. ¶¶ 12-14.)

At that same time, John Plessey was the plant manager. (Id. ¶ 12.) Mr. Plessey "authorized the Plaintiff to keep the reimbursement check because he was performing a task that no one else wanted to complete, as a bonus for his extra work." (Id. ¶ 15.) In 2010, Francine Moudry became the plant manager, replacing Mr. Plessey. The Plaintiff spoke with Ms. Moudry about the pallet agreement and she allowed it to remain in effect. (Id. ¶¶ 18-19.) Further, in December of 2012, the Plaintiff told Bel's interim supervisor, Richard Grace, about his pallet agreement. (Id. ¶ 20.)

In January of 2013, Bel "offered many older employees the opportunity for early retirement and a buyout package." (Id. ¶ 21.) Five months later, in May of 2013, the supply chain supervisor, Hyrum Horn, began investigating the pallet procedure. (Id. ¶ 22.) The Plaintiff fully cooperated with the investigation and told Mr. Horn about his agreement with his previous plant managers. (Id. ¶ 22.) The Plaintiff was put on administrative leave. (Id. ¶ 23.) When he returned, the Plaintiff attended a meeting with Mr. Horn and Vladimir Homola, his manager at the time. The Plaintiff again disclosed that he received the reimbursement money as a bonus. He asked that his previous managers, Mr. Plessey and Ms. Moudry, be contacted to confirm the pallet policy. (Id. ¶¶ 24-25.) Mr. Horn stated that he had contacted Mr. Plessy and Ms. Moudry, but they did not confirm the Plaintiff's account of the policy. (Id. ¶ 25.) Mr. Plessey later told the Plaintiff that he was never contacted by Bel-and that the Plaintiff's recollection of the policy was correct. (Id. ¶ 27.)

On May 13, 2013, Mr. Homola discharged the Plaintiff. (Id. ¶ 26.) A new pallet procedure was then implemented. (Id. ¶ 29.) Further, around that same time, "other older employees [were] discharged for questionable reasons." (Id. ¶¶ 32, 35.) The Plaintiff has now filed a three-count complaint. In this complaint, the Plaintiff asserts an age discrimination claim under the Kentucky Civil Rights Act ("KCRA"). (Id. ¶¶ 33-38.) The Plaintiff also asserts promissory estoppel claims: one based on Bel's alleged violation of its policies prohibiting discrimination, (id. ¶¶ 39-44), and the other based on Bel's alleged violation of its long-standing pallet policy. (Id. ¶¶ 45-50.) On March 21, 2014, Bel filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The Plaintiff responded [DN 19]. The Plaintiff then filed motions to enter the affidavits of Karen Roof and Jean-Pierre Plessis [DNs 21, 23, 24].


Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), a court "must construe the complaint in the light most favorable to plaintiff[], " League of United Latin Am. Citizens v. Bredesen , 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), accepting all of the plaintiff's allegations as true. Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). Under this standard, the plaintiff must provide the grounds for his entitlement to relief, which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). The plaintiff satisfies this standard when he "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678. A complaint falls short if it pleads facts that are merely "consistent with a defendant's liability" or if the facts do not "permit the court to infer more than the mere possibility of misconduct." Id. at 678-79. The allegations must "show[] that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).


Bel argues that the Plaintiff's allegations render his age discrimination claim implausible. According to Bel, the Plaintiff's complaint discusses a pallet scheme that its prior management allegedly approved, but which new management ended. Bel argues that the Plaintiff's allegation that he was discharged "due to his age" is thus conclusory and unsupported. With discrimination claims, "broad and conclusory allegations of discrimination cannot be the basis of a complaint and a plaintiff must state allegations that plausibly give rise to the inference that a defendant acted as the plaintiff claims." HDC, LLC v. City of Ann Arbor , 675 F.3d 608, 614 (6th Cir. 2012). Indeed, a plaintiff must allege "sufficient factual content from which a court, informed by its judicial experience and common sense, could draw the reasonable inference that Defendant[] discriminated against Plaintiff with respect to his [alleged protected status]." Han v. Univ. of Dayton, 541 Fed.App'x 622, 626 (6th Cir. 2013) (internal quotation marks omitted). Bel argues that the factual allegations in this case are insufficient.

The Plaintiff responds that his complaint "contains well pleaded, non-conclusory factual allegations, which give rise to a plausible suggestion of pre-textual termination based on age...." (Pl.'s Resp. to Def.'s Mot. [DN 19] 1.) In this respect, the Plaintiff highlights his allegation that Bel implemented a voluntary early retirement program for some of its older employees only five months before he was terminated. According to the Plaintiff, the investigation concerning the pallet procedure and his resulting termination raise "an inference of pre-textual termination on the basis of his age because of its temporal proximity to the Voluntary Separation Program." (Id. at 2.) In other words, the Plaintiff argues that he has sufficiently pleaded that his termination "came at a time that Defendant was clearing out their workforce of older workers...." (Id. at 4.)

The Court disagrees with the Plaintiff's position. While the Plaintiff focuses on the temporal proximity of his termination to Bel's offering of a voluntary early retirement program, the Sixth Circuit has held that "[a]n employee to whom [an early retirement] offer has been extended... is the beneficiary of any distinction on the basis of age [and cannot] claim to be adversely affected by discrimination in the design or offer of the early retirement package." See Slenzka v. Landstar Ranger, Inc. , 122 Fed.App'x 809, 814 (6th Cir. 2004) (emphasis in original). In other words, an offer of voluntary early retirement is not evidence of age discrimination to those who receive the offer. From this proposition, this Court likewise finds that an offer of voluntary early retirement cannot be evidence of age discrimination to someone who did not receive the offer (i.e. the Plaintiff). Indeed, the fact that Bel gave some employees the choice to retire does not create an inference that Bel terminated the Plaintiff based on his age. The Court cannot draw the inference that Bel was "clearing out their workforce of older workers" simply because it offered a benefit to some of its employees who had spent years working for the company. The Plaintiff has not alleged, for instance, that employees who refused to accept the retirement package were fired.

Likewise, the Court finds that the complaint's other allegations only create speculation or suspicion; they do not show entitlement to relief for age discrimination. See Twombly , 550 U.S. at 553-54. In this respect, the Court finds the facts of this case to be similar to the facts in Han v. University of Dayton. There, the Sixth Circuit affirmed the dismissal of the plaintiff's race and gender discrimination claims. The plaintiff, a law professor, had alleged his race and gender, and that he had received a bad review and was later discharged. The plaintiff had also alleged that a white ...

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