United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
JOSEPH H. McKINLEY, Jr., Chief District Judge.
This matter is before the Court on Defendant Western Kentucky University's ("WKU") Motion for Summary Judgment [DN 55]. Fully briefed, this matter is ripe for decision. For the following reasons, the Motion for Summary Judgment is GRANTED.
Plaintiff Cheryl Lewis-Smith, an African-American, was first hired at WKU in March 1997, by Tony Glisson ("Glisson"), Director of WKU's Human Resources ("HR") Department. Plaintiff was hired into the position of "Compensation Manager" and, along with two other HR managers, reported directly to Glisson. Less than one year later, Plaintiff resigned from WKU in order to accept a new job at a local hospital. Glisson accepted Plaintiff's resignation by expressing appreciation for her "enthusiasm, attitude, cooperative spirit and work ethic." (Lewis-Smith Dep. Ex. 6 [DN 47] 118.) During her brief initial tenure at WKU, Plaintiff got along well with Glisson and her other colleagues in HR and "had no problems." (Id. at 42:4-:14.) Plaintiff's new job at the hospital was a promotion in terms of salary and supervisory responsibility; she was to manage three employees and her salary increased to $40, 000 versus the $33, 000 she was earning at WKU. (Id. at 44:6-:17, 46:17-:20; Ex. 3, at 109.) However, in 2003, the hospital underwent a restructuring and Plaintiff was demoted. (Id. at 47:25-48:11, 49:2-:6.) Her salary was reduced at that time from roughly $60, 000 to less than $55, 000, and she no longer had any direct reports. (Id. at 48:12-:15, 50:14-:25, 51:1-:3.)
In early June 2004, a long-time HR employee retired from WKU, and the University created a new position titled "Manager of Employment and Training" with responsibility for the coordination of employee recruitment and selection, and for staff training activities. (See id. Ex. 7, at 120-23.) Glisson received approval from his boss, Vice President Gene Tice ("Tice"), to realign duties among the three HR manager positions and to shift responsibilities and salary from the vacant position to the other two HR managers then working under Glisson, Maribeth McBride ("McBride") and Patty Booth ("Booth"). This decision was made prior to advertising the job opening for the new position of "Manager of Employment and Training." The new position was approved for advertisement at a range of $42, 000 to $45, 000. (Glisson Dep. Ex. 4 [DN 48] 207.)
Plaintiff applied for the position on June 29, 2004. Glisson explained to Plaintiff during her interview that McBride and Booth had assumed some new tasks from the retiring manager and that Glisson had promised to "take care of" Booth and McBride. (Lewis-Smith Dep. [DN 47] 66:12-:25, 68:10-:24.) Glisson also told Plaintiff that the advertised salary was the maximum budgeted for the position and that WKU could not pay more than $45, 000. (Id. at 73:17-74:5; Glisson Dep. [DN 48] 62:22-63:5.) Glisson testified that he thoroughly discussed the initial salary with Plaintiff because he was aware that she would be taking a pay cut to return to WKU and did not want to get into a salary issue later on. (Id.) On July 30, 2004, Glisson offered the position to Plaintiff at the beginning salary of $45, 000. Plaintiff accepted and her first day of work was September 13, 2004.
Within three months, however, Plaintiff went to Glisson with a salary complaint. (Lewis-Smith Dep. [DN 47] 81:19-:23.) Plaintiff related that she had seen a salary-change approval form and realized that part of the original budgeted salary for the Manager of Employment and Training position had been reallocated to the other two HR managers before she was hired. She indicated that, after becoming aware of the credentials of those two managers, she felt she was being paid unfairly. (Id. Ex. 10, at 131.) Plaintiff testified that if she had known budgeted funds were shifted to the other two manager positions from the position she later accepted, she never would have accepted the job at WKU. (Id. at 94:19-96:23, 106:20-108:12.) According to Plaintiff, Glisson was very offended when she came to him with her salary concern because she had accepted the job knowing the salary was $45, 000. (Id. at 80:9-81:18.) According to Glisson's meeting notes from December 15, 2004, which Plaintiff does not dispute, Glisson shared his disappointment with her over what she characterized as an "ethical issue" because they had discussed the salary limitations during multiple conversations just three months before. (Id. Ex. 10, at 131.) Glisson suggested Plaintiff share her concerns with Tice, who was aware of the salary issues and recent changes, which Plaintiff did.
Plaintiff initially met with Tice to discuss her salary complaint and then met with both Tice and Glisson in early January 2005. Tice declined to grant Plaintiff a raise at that time and explained that the realignment had been approved and implemented prior to any advertisement of the Manager of Employment and Training position and that Plaintiff had accepted employment at the salary of $45, 000 per year. (Id. Ex. 13, at 138-39.) Plaintiff conceded that the salary dispute had nothing to do with her age or race, but that it impacted her relationship with Glisson, who she testified became very abrupt and hostile towards her. (Id. at 108:3-109:25.) Thereafter, in June 2005, Plaintiff received a $2000 raise,  although she expressed her continued unhappiness with her compensation and indicated to Glisson that she would explore other employment options. (Id. Ex. 15, at 145.) Glisson responded that if she was unhappy she should seek another job.
The relationship between Glisson and Plaintiff further worsened after Plaintiff raised a second concern in September 2005, regarding her application for WKU's Director of Career Services position. Specifically, Plaintiff was concerned that she was not interviewed for that position, which she believed was a "human resources type of position." (Id. at 157:17-160:7.) Plaintiff discussed her concern with Glisson, including what Glisson understood to be an accusation that he had interfered with her application. (Id. at 161:16-162:14.) Glisson subsequently sent Plaintiff a memorandum expressing his concern that she believed he had acted inappropriately to harm her and assuring her that he was committed to supporting her career goals. (See id. Ex. 18, at 154-55.) Plaintiff replied that she had not accused Glisson of anything and characterized Glisson's response as "enraged"; Glisson believed he had merely explained that the Career Services job required a background in student affairs, not human resources. Plaintiff also discussed her concerns with EEO Director Huda Melky ("Melky"). Melky's office conducted an audit of the Director of Career Services position search and found no evidence of discrimination against minority applicants or of any outside influence on the search committee as alleged by Plaintiff. (Id. Ex. 17, at 152.) Melky, as well as Assistant EEO Director Joshua Hayes, testified that Glisson was the specific "outside influence" mentioned by Plaintiff as having interfered with her candidacy. (Melky Dep. [DN 49] 105:7-:18; Hayes Dep. [DN 50] 14:1-:20.)
The next point of conflict between Plaintiff and Glisson occurred in early 2007, regarding Plaintiff's 2006 evaluation prepared by Glisson. Although the evaluation fell within the "satisfactory" category, the numerical score (96) was significantly lower than the previous years. (Lewis-Smith Dep. Ex. 27 [DN 47] 181-86.) Glisson's comments regarding Plaintiff's strengths and weaknesses included:
Certain aspects of Cheryl's responsibilities she does very well; other aspects are accomplished at less than optimal levels. Cheryl does have a good understanding of general human resources concepts and practices. Cheryl sometimes has difficulty in understanding things from a "University" perspective. Sometimes Cheryl comes across as seeking self-praise rather than the "common good" and this limits her effectiveness with HR staff and others.... While Cheryl has a general knowledge of human resources practices, she has not been able to contribute and demonstrate the leadership necessary to gain the unqualified confidence of others within Human Resources.
(Id. Ex. 27, at 183.) Glisson met with Plaintiff in early February 2007 and shared with her that other staff members did not feel she was pulling her weight and that she was not viewed as a contributing team member. (Id. at 185:20-186:12, 186:18-:21.) Glisson also discussed additional issues that were not specifically listed in the written evaluation, such as not knowing the details of WKU's employment process, tardiness, and excessive time out of the office. (Id. at 191:20-193:6; Ex. 25, at 177.) Plaintiff testified that she was shocked by Glisson's comments and sought immediate treatment for high-blood pressure. (Id. at 195:9-:19.) She was so upset by the evaluation that she missed several days from work. Plaintiff testified that when she met with Glisson ten days later to discuss the review, he became frustrated and ended the meeting abruptly. (Id. at 202:3-203:21.) Glisson told her that she could appeal the evaluation to Tice, which she did. (Id. Ex. 28, at 188-90.)
In her appeal to Tice, Plaintiff indicated that Glisson had told her that he had never gotten over the initial salary dispute from 2004. She further claimed that Glisson said that she was just an average performer compared to the other two managers whom Glisson referred to as "superstars." (Id. at 204:9-205:6.) Glisson testified that Plaintiff's evaluations were always much lower than his evaluations of the other two HR managers. (Glisson Dep. [DN 48] 172:5-:12.) Additionally, Glisson stated that Plaintiff had not produced any tangible results for the year and that he believed the best thing for her to do was to find another job. (Lewis-Smith Dep. [DN 47] 204:9-205:14; Ex. 28, at 188-90.) Tice met with Plaintiff and pointed out that Glisson's criticisms in the evaluation were consistent with Glisson's comments from the two previous years, but suggested periodic review of progress towards goals during the year. (Id. Ex. 29, at 192-94.) Tice concluded that the evaluation did not need to be changed. (Id.)
In early December 2009, Plaintiff contacted EEO Director Melky after learning that Booth, another HR manager, had received a raise earlier in the year. (Melky Dep. [DN 49] 103:5-:10.) Plaintiff was upset that Glisson had removed her from the electronic routing of the approval of Booth's raise. Plaintiff testified that she believed she had been discriminated against because the department had been told that no one in the department would be given a raise. (Lewis-Smith Dep. [DN 47] 118:10-:19.) While meeting with Plaintiff, Melky asked WKU General Counsel Deborah Wilkins ("Wilkins") to join the conversation. (Id. at 118:20-:21.) Wilkins was aware that Booth had received a raise for added job duties and suggested that Plaintiff address the salary adjustment issue with Vice President Ann Mead ("Mead"), who had replaced Tice as Glisson's boss, which Plaintiff did. (Id. at 118:21-:25, 119:6-:9.)
Plaintiff met with Mead sometime soon thereafter. Plaintiff testified that she asked Mead for a salary adjustment at that time and that she told Mead she "had concerns based on certain things." (Id. at 123:9-125:1.) Plaintiff testified that she discussed with Mead her working relationship with Glisson, her feeling that she was excluded from activities and processes, and that she was treated unfairly. (Id. at 124:4-:22.) Mead asked Plaintiff during that meeting whether or not she wanted to file a formal complaint about any kind of hostile work environment or racial discrimination. (Id. at 125:2-129:23.) It is not clear from Plaintiff's testimony exactly what her response was, however it is clear that Plaintiff did not file a complaint at that time (or at any other time thereafter). (See id. at 123:9-125:1.) Mead reviewed Plaintiff's salary adjustment request and performed an analysis of the new job duties identified by Plaintiff. Mead concluded that any added tasks were either minimal or fell within Plaintiff's job description and denied the requested raise in a letter dated December 18, 2009. (See id. Ex. 35, at 219-23.) According to Plaintiff, Glisson "blasted" her when he found out she had gone to Mead regarding the salary issue, told her he was tired of Plaintiff going over his head, and said that if she was unhappy in her job she would leave. (Id. at 292:23-293:2.)
The Court notes that there is conflicting evidence in the record, including conflicting testimony by the Plaintiff in her deposition during discovery and her affidavit filed with her response brief, as to whether Plaintiff actually reported discrimination and/or a hostile work environment based on race, to either Melky or Mead. It is undisputed that Plaintiff did not file a formal or informal complaint of racial discrimination or racial hostility with anyone at WKU, (Lewis-Smith Dep. [DN 47] 294:4-295:16; Melky Dep. [DN 49] 15:15-:23, 45:6-:9, 54:9-:18, 121:15-:18), and that Plaintiff expressly acknowledged that she knew how to make such a complaint if she had chosen to do so, (Lewis-Smith Dep. [DN 47] 114:10-:19, 214:11-:15). However, there is evidence in the record-a handwritten note and Plaintiff's own affidavit submitted with her response brief-that could support that Plaintiff complained about racial discrimination and/or a hostile work environment. The handwritten note, whose author appears to be Wilkins (see Melky Dep. [DN 49] 25:5-:7), states: "Discrimination based on race. Hostile environment-wouldn't let her stuff envelopes. Says TLG has gone over her head and approved EPAFs." (See id. Ex. 2, at 130.) The document is dated December 7, 2009 and labeled at the top with "Cheryl Smith." It also contains the names "Ann" and "Huda" in the upper left margin. Melky testified that what was verbally related to her by Plaintiff was not what was reflected in Wilkins' handwritten note. (Id. at 25:9-:14.) Melky further testified that Plaintiff did not say that she was being racially discriminated against or that she was working in a hostile working environment. (Id. at 23:16-:21, 24:5-:9, 25:22-:24, 30:21-31:12.) However, Plaintiff's affidavit states that she told Wilkins and Mead that she felt she was racially discriminated against and that she was working in a hostile work environment during their meeting on December 7, 2009. (Lewis-Smith Aff. [DN 75-1] ¶¶ 18, 20.)
Part of Plaintiff's job was to report discriminatory practices and ethical concerns to Glisson, her supervisor. During her employment at WKU, Plaintiff was a University Staff Council Member, and was elected as Council Chairperson. She served as Chair up until the time of her termination at WKU. WKU Staff Council is a voluntary entity "whose purpose is to suggest, recommend, and review various policies, procedures, and programs having implications for staff employees. The Staff Council reports its recommendations to the President of the University." (Melky Dep. Ex. 3 [DN 49] 135.) The Staff Council was not authorized to receive or respond to complaints concerning "protected activities and/or discriminatory treatment in the workplace." (Id.) Through her position in the HR Department and as Chair of Staff Council, Plaintiff came into possession of information regarding various legal issues and employee concerns.
In 2009, WKU undertook to implement a new computer applicant tracking system for accepting and managing employment applications. The contract was awarded to PeopleAdmin, and implementation steps began in the fall of 2009 with a goal of attaining full implementation by July 1, 2010. An implementation committee, made up of individuals from HR, EEO/ADA/504 Compliance Office, Academic Affairs, and Administrative Systems and Applications, was established and charged with system implementation. Glisson appointed Plaintiff and Booth as co-chairs of that committee; Plaintiff was to oversee the policy and applicant tracking aspects of the system and Booth was assigned to address the technical aspects of the program. (Glisson Dep. [DN 48] 168:16-169:21.) Glisson considered the project to be very important to WKU and the HR Department in particular. (Id. at 26:21-27:3, 125:12-:13.)
On April 12, 2010, the EEO representative on the committee, Joshua Hayes, sent a group e-mail message that Plaintiff perceived as praising Booth but not Plaintiff. (See id. Ex. 32, at 268-70; Hayes Dep. [DN 50] 21:20-23:8.) When Plaintiff complained to Glisson about the perceived slight, she accused him of being "pompous" and "smug, " which Glisson testified offended him. (Glisson Dep. [DN 48] 167:14-:19; Ex. 32, at 268-70; Lewis-Smith Dep. [DN 47] 317:22-318:7.) At that time, Glisson shared with Plaintiff that some implementation committee members had been critical of Plaintiff's contributions to the committee and that he had been evaluating how to address the concerns he had regarding her role as a leader of the project. (Id. at 314:1-:3; Ex. 38, at 235-36; Glisson Dep. Ex. 32 [DN 48] 268-70.) Glisson told Plaintiff that he would let her know soon what he decided to do. (Id.)
The same day, Plaintiff also confronted Hayes, in what Hayes testified was an unprofessional manner. (Hayes Dep. [DN 50] 25:10-27:2.) Hayes related the confrontation to Melky, his boss, who in turn complained to Mead about work that the EEO staff had been required to perform because Plaintiff had not been doing her job. (Id. at 28:19-29:10; Ex. 3, at 95-96; Melky Dep. [DN 49] 70:6-73:7.) Glisson and Mead met later that week and Glisson recommended that Plaintiff's position be eliminated and her employment be terminated. (Glisson Dep. [DN 48] 22:16-:23, 23:16-:19, 123:20-124:7). Mead approved that recommendation. The following week, on April 19, 2010, Glisson and Mead met with Plaintiff to share the decision, which was also provided in the form of a letter advising her of the reorganization of the HR Department. (Lewis-Smith Dep. Ex. 39 [DN 47] 239.) Plaintiff was informed that her last day of work would be April 30, 2010, but that she would be paid for an additional two months-through June 30, 2010. (Id. at 370:2-:4.)
On January 27, 2012, Plaintiff filed this action alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-633a, the Kentucky Civil Rights Act ("KCRA"), KRS 344.040, and the Kentucky Whistleblower Act ("KWA"), KRS 61.101-.103, 61.990-.991, as well as a wrongful discharge claim. (Compl. [DN 1] ¶¶ 22, 28, 36.) Plaintiff subsequently amended the Complaint on July 10, 2013, to allege violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17, and the KCRA, KRS Chapter 344, based on race discrimination and retaliation. (First Am. Compl. ¶¶ 1-6.) On June 6, 2014, Defendant filed this Motion for Summary Judgment [DN 55].
II. SUMMARY JUDGMENT STANDARD
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 non-moving 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. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the non-moving 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.
Plaintiff alleges various claims against Defendant WKU: (1) race discrimination; (2) hostile work environment based on race discrimination; (3) retaliation for reporting discriminatory treatment; (4) violation of the Kentucky Whistleblower Act; (5) wrongful discharge; and (6) age discrimination. The Court will address each claim in turn.
A. Race Discrimination
The Court will first address Plaintiff's claim under Title VII, 42 U.S.C. § 2000e-2(a)(1), and the KCRA, KRS 344.040, for racial discrimination. Courts interpret Title VII and the KCRA using the same standards. Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000) ("Because Ky. Rev. St. Chapter 344 mirrors Title VII of the Civil Rights Act of 1964 ("Title VII"), we use the federal standards for evaluating race discrimination claims."). Title VII makes it "an unlawful employment practice for an employer... to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In disparate treatment cases, such as this one, the plaintiff must establish that the adverse employment action was motivated, in part, by the plaintiff's protected-group status. Absent a discriminatory basis, an employer does not violate Title VII, even though the discharge may have been arbitrary, unfair, or for no reason at all. See St. Mary's Ctr. v. Hicks, 509 U.S. 502, 514 (1993) ("We have no authority to impose liability upon an employer for alleged discriminatory employment practices unless an appropriate factfinder determines, according to proper procedures, that the employer has unlawfully discriminated. ")
Where, as here, a plaintiff fails to present direct evidence of discrimination,  courts analyze Title VII disparate treatment claims under the three-step McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Initially, the plaintiff must present evidence sufficient to establish a prima facie case of racial discrimination. Id . Once a plaintiff establishes her prima facie burden, the burden of production shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse employment action. Id. at 803. If the defendant articulates such a reason, the burden then shifts back to the plaintiff to show by a preponderance of the evidence that the proffered reason is pretext for unlawful discrimination-that is, "that the [employer's proffered] reason was false, and that discrimination was the real reason." Hicks, 509 U.S. at 515.
Generally, an employee establishes a prima facie case of racial discrimination when she shows that (1) she is a member of a protected class; (2) she was subjected to an adverse employment action; (3) she was qualified for the position; and (4) she was replaced by someone outside the protected group, or treated differently than similarly situated white employees. White v. Baxter Healthcare Corp., 533 F.3d 381, 392 (6th Cir. 2008). However, where the adverse employment action takes place in the context of a reorganization or reduction in force,  where the employee's position is eliminated and not refilled, the fourth prong is modified because the employee is not actually replaced. Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir.), cert denied, 498 U.S. 878 (1990). Instead, the plaintiff must present "additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Id . This evidence must be "sufficiently probative to allow a factfinder to believe that the employer intentionally discriminated against the plaintiff because of [race]." Id. at 1466.
The Court notes that the instant case may not be the typical reduction in force case, as this particular reorganization occurred as a result of an adverse employment action that was undertaken for reasons specific to a particular employee (Plaintiff). However, as it is undisputed that Plaintiff was not replaced by anyone,  the Court believes that the same modified fourth prong should apply here; otherwise Plaintiff would be foreclosed from the opportunity of presenting a prima facie case. See Barnes, 896 F.2d at 1465 n.9 ("We have stated that McDonnell Douglas test is not to be applied mechanically, instead opting for a case-by-case approach that focuses on whether [race] was in fact a determining factor in the employment decision."); McDonnell Douglas, 411 U.S. at 802 n.13 ("The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.").
The Court turns then to the question of whether Plaintiff has set forth sufficient direct, circumstantial, and/or statistical evidence to establish a prima facie case. Neither party articulated or expressly addressed this alternative fourth prong in their respective briefs. However, it appears that Plaintiff attempts to put forth additional evidence of discrimination in her discussion of pretext. The Court addresses that evidence now in determining whether Plaintiff has shown additional evidence tending to indicate that Defendant singled out Plaintiff for discharge for impermissible reasons.
Plaintiff alleges that one Caucasian WKU employee, Debbie Richardson, was similarly situated to Plaintiff and was treated more favorable than Plaintiff was. (Pl.'s Resp. [DN 75] 15-16.) A plaintiff can satisfy the fourth prong where she demonstrates that a similarly situated employee who is not a member of the protected class was treated better. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998). Specifically, Plaintiff contends that she "was treated differently than other employees because she was not allowed to stay in her position until another position was found for her as were similarly-situated, Caucasian employees such as Debbie Richardson." (Pl.'s Resp. [DN 75] 16.) The Court finds that Debbie Richardson was not similarly situated to Plaintiff and that even if she were, Richardson did not receive better treatment than Plaintiff did.
Plaintiff claims that Debbie Richardson, a white female, is a comparator because both Plaintiff and Richardson worked in HR at the time their positions were eliminated and both reported to Glisson. The Sixth Circuit explained in Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992), that "to make a comparison of a discrimination plaintiff's treatment to that of non-minority employees, the plaintiff must show that the comparables' are similarly-situated in all respects. " Id. at 583. In Ercegovich, the Sixth Circuit further stated that "[t]he plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment in order for the two to be considered ...