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Smith v. Walle Corp.

United States District Court, E.D. Kentucky, Central Division

October 20, 2014

DEMING SMITH, Plaintiff,

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[Copyrighted Material Omitted]

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For Deming Smith, Plaintiff: Edward E. Dove, LEAD ATTORNEY, Lexington, KY.

For Walle Corporation, Defendant: F. William Hardt, III, LEAD ATTORNEY, The Hardt Law Firm, LLC, Lexington, KY; Keith Moorman, LEAD ATTORNEY, Frost Brown Todd LLC - Lexington, Lexington, KY; Kyle M. Melloan, LEAD ATTORNEY, Dinsmore & Shohl LLP - Lexington, Lexington, KY.

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Danny C. Reeves, United States District Judge.

Defendant Walle Corporation (" Walle" ) has moved for summary judgment on Plaintiff Deming Smith's claims for age-related discrimination in violation of the Kentucky Civil Rights Act (" KCRA" ), KRS Chapter 344, et seq. [Record No. 10][1] In addition to a hostile work environment claim, Smith alleges that Walle discriminated against him because of his age by giving his younger co-workers a raise that he was denied and by terminating his employment. Smith further alleges that, after he filed a discrimination complaint, Walle retaliated against him by transferring him to a maintenance position and by terminating his employment. For the reasons outlined below, the Court will grant summary judgment on Smith's claim for age discrimination based on his termination and Smith's hostile work environment claim. However, Walle's motion for summary judgment on all remaining claims will be denied.


Smith was 68 years old when he was hired as a Finishing Technician at Walle on May 24, 2011. [Record No. 10-2, p. 11] Smith's initial base rate of pay was $8.55 per hour. He received five pay raises totaling $1.95 per hour during his 24 months with Walle and his final rate of pay was $10.50 per hour. [Record No. 14-1] The first increase in his salary was $0.26 per hour as third shift supplemental pay, increasing his pay rate to $8.81 per hour. [Record No. 14-1] On October 9, 2011, Smith's salary was increased to $9.27 per hour. [Record No. 14-1] The first alleged pay increase discrepancy occurred on or around January 29, 2012. Smith claims that all of the other employees on his shift received a pay increase of $0.50 per hour while Smith only received an increase of $0.40. After Smith complained that his raise was less than that of his co-workers, he was eventually given a $0.10 per hour raise. It is unclear from the record whether this pay increase was applied retroactively.

The largest pay increase discrepancy occurred in February of 2012. Smith learned that the " younger" workers received a pay increase of $1.50 per hour. [Record No. 10-2, p. 9-10] Allegedly, this was done to keep younger workers from being hired by a new, neighboring plant facility. [Shane Lurty Statement, Record Nos. 14-2, 14-3, 33-1] This pay discrepancy, Smith argues, was based on his age.[2] Smith complained to his supervisors and higher management. [Record No. 14-4, pp. 3-4] Eventually, in May of 2012, Smith received his largest

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raise, which was $ 0.75 per hour. [Record No. 14-1] According to his Compensation History, this raise was a " salary adjustment for parity." [3] [Record No. 14-1] Unsatisfied with the raise, Smith continued to complain. When he did not receive the full $1.50 per hour raise that the other younger employees received, Smith filed a complaint with the local agency of the Equal Employment Opportunity Commission on June 11, 2012. [Record 10-2, p. 38]

After the filing of the EEOC Complaint, Smith was disciplined for placing labels in the incorrect boxes or incorrect pallet.[4] [Record No. 10-2, pp. 17-18] Placing the labels was part of his regular work assignment. [Record No. 10-2, pp. 17-18] Smith denies making these mistakes, pointing out that it may have been someone on another shift. [Record No. 10-2, pp. 17-18] A meeting was held in September 2012 to discuss these incidents. Another employee was also disciplined for one of the mistakes, but she blamed Smith for the remaining errors. [Record No. 10-2, pp. 18, 52-53] It is unclear whether Smith admitted to making one of the three mistakes. While he denied making the mistakes at his deposition, at the meeting regarding the incidents, " he blamed one of the mistakes on the way the boxes were aligned to receive the product. . . . He did not know how the other two most significant mistakes were made." [Record No. 10-2, p. 53]

Consequently, in September 2012, Smith was transferred to an American Institute of Bakeries (" AIB" ) position. The transfer neither reduced Smith's pay nor changed his benefits. However, Smith considered the AIB position inferior to that of a Finishing Technician. [Record No. 10-2, p. 16-17] He alleges that this transfer was in retaliation for his earlier complaint about the discrepancy in pay increase and EEOC filing. Walle contends that the transfer was a re-assignment based upon the three mistakes with the labels. [ See Record No. 10-2, p. 53] Smith describes the AIB Specialist position as a maintenance position in which he removed weeds and scraped the floors. [Record No. 10-2, p. 16-17] He was also required to clean old trash from around the dumpster and inspect ceiling tiles for signs of rodents. [Record No. 14-4, p. 2] As a result, Smith filed a second, related charge with the EEOC on November 28, 2012. [Record 10-2, p. 43] In its determination on December 19, 2012, the EEOC found reasonable cause to believe that Walle had given Smith a raise in pay similar to Smith's comparables. [Record No. 14-9] Smith was issued a right to sue letter on or about March 27, 2013.

Following his transfer to the AIB position, Smith was again disciplined on several

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occasions based on alleged violations of Walle's policy and his supervisors' instructions. [Record 10-4, p. 1-2] Smith's supervisor Sheila Stacy stated that Smith was often chatting with employees outside of his assigned work areas, such as the Quality Engineer's office and maintenance shop. [ Id.] Despite warnings not to go to the maintenance shop at all, Smith was seen in the maintenance shop by Stacy and other supervisors. [Record No. 10-4, pp. 2, 4-7] Later, on May 2, 2013, Smith failed to exit the premises during a fire drill. [Record No. 10-4, p. 8-9] At the time, he was in the mezzanine. The parties disagree regarding whether Smith was authorized to be in the mezzanine. [Record No. 10-4, p. 8-9; Record Nos. 14-7, 33-2] Earl Renzenbrink, a Quality Engineer, who worked under Sheila Stacy and was responsible for overseeing Smith on a daily basis, said that he authorized Smith to be in the mezzanine at the time of the fire drill. [Record Nos. 14-7, 33-2]

As a result of Smith's failure to evacuate during the fire drill, Smith was presented with a written warning on May 2, 2013. [Record No. 10-2, pp. 49-50] Smith was warned that if his " sense of urgency" and " initiative" did not improve, and his socialization with other employees in unauthorized areas did not improve, he would be subject to a final warning and termination. [Record Nos. 10-4, pp. 8-9; 10-2, pp. 49-50] Walle submitted several statements from supervisors evidencing occasions after May 2, 2013 that Smith was outside of his designated work area. [Record No.10-2, pp.45-48] On June 10, 2013, there were two separate notes indicating two occasions on the same day on which Smith was alleged to have been outside of his designated work zones. [Record No.10-2, pp.47-48]

On June 10, 2013, Walle terminated Smith's employment. Stacy, Smith's supervisor, states in her affidavit that Smith's termination was due to " his failure to stay on task and avoid being in areas where he had no reason to be and areas he had been ordered to avoid." [Record 10-4, p. 2] There were no additional formal written notices or warnings to Smith prior to his termination.

Smith submits a statement from Shane Lurty, alleging that Day-Shift Supervisor Natalie Bailey told Lurty that the General Manager of Walle Corporation considered Smith to be a " crazy old man." [Record Nos. 14-2, 33-1] Lurty also submits an additional statement in which Lurty alleges that Production Manager Allen Dummitt stated that Smith was " too old" and " would probably only be here for another year or two at most" as the reason that Smith was not given raises similar to his co-workers. [Record Nos. 14-3, 33-1] Additionally, Smith submits a statement from Renzenbrink indicating that Smith was, in fact, authorized to be in certain locations that Walle contends Smith was prohibited from entering. [Record Nos. 14-7, 33-2] Walle terminated Smith's employment based, at least in part, on Smith's presence in these areas.

As alleged, the facts bear on three separate alleged discriminatory acts against Smith. First, he alleges a discrepancy in pay raise when compared to his younger counterparts. Next, he alleges his termination was based on his age. He also alleges retaliation with respect to his transfer to the AIB position and with respect to his termination from ...

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