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Baskin v. Pepsi Midamerica Co.

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

January 22, 2015

PEPSI MidAMERICA CO., Defendant.


THOMAS B. RUSSELL, Senior Judge.

This case arises from Arthur Baskin's termination from employment with Pepsi MidAmerica Co. ("Pepsi"). Alleging that his race was a motivating factor in his termination, Baskin brought the instant action against Pepsi pursuant to both state and federal law. Pepsi has moved for summary judgment, (Docket No. 25); Baskin has responded, (Docket No. 26), and Pepsi has replied, (Docket No. 27). Subsequently, Pepsi filed a motion to strike portions of evidence attached to Baskin's response to Pepsi's motion, (Docket No. 28), to which Baskin responded, (Docket No. 31), and Pepsi replied, (Docket No. 32). Both motions having been fully briefed, the matter stands ripe for review. For the reasons stated herein, the Court will grant in part and deny in part Pepsi's motion to strike. Further, the Court will deny Pepsi's motion for summary judgment.

Factual Background

Because the Court must construe all facts in the light most favorable to the non-movant when considering a summary judgment motion, to the extent that any facts are disputed, the facts set forth herein represent Baskin's version of the events at issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Additionally, the facts below recount only those not presented in filings stricken by the Court. See infra.

Beginning on September 22, 2008, Baskin, an African-American man, served as a full-line route sales driver for Pepsi. His responsibilities included loading a truck with drinks and snacks, traveling to various locations to stock vending machines, and collecting, counting, and depositing money from those vending machines. Baskin avers that he carried the largest route of all of Pepsi's salespeople, with a territory including the Kentucky Oaks Mall area, surrounding schools and businesses, and West Kentucky Community and Technical College. (Docket No. 26-5, Arthur Baskin Deposition, at 151:1-20.)

The incidents giving rise to this lawsuit occurred on June 5, 2012, at the meeting of Pepsi's route sales employees with Jared Hines, their supervisor. Hines allegedly accused Baskin of poor work performance and told Baskin that he was "tired of his shit" and that he "wish[ed] they would just go ahead and fire" Baskin. (Docket No. 26-7, Ashley Williams Deposition, at 6:17-25.) Baskin admits that he then rose from his seat and told Hines, "Man, you can kiss my ass, " and walked out of the meeting. (Docket No. 26-5, Arthur Baskin Deposition, at 118:23-119:1.) Baskin had received four disciplinary warnings prior to the incident that resulted in his termination, including one for inappropriate "verbal conduct."[1]

On June 5, 2012, Hines reported the incident to Pepsi's human resources manager and prepared a Form 170 discipline report detailing the incident.[2] Five days later, John Rains, Pepsi's general manager and executive vice president of operations, visited the Paducah depot. During his visit, he received a written complaint from a Pepsi employee who accused Baskin of being "rude and unprofessional." ( See Docket No. 25-3, Affidavit of John Rains, at ¶ 6.) Rains reviewed Baskin's personnel file, including the as-yet unprocessed Form 170 detailing the June 5, 2012, incident. As a result, Rains instructed Pepsi employees Terry Knott and Bo Shell to terminate Baskin's employment.

On July 11, 2012, Shell and Knott waited outside the Pepsi facility for Baskin to arrive for work. When confronted by the two men, Baskin acknowledged and apologized for the offensive comment. Shell and Knott then informed Baskin that he was terminated as a Pepsi employee as a result of the outburst, purportedly for "insubordination." (See Docket No. 26-5, Arthur Baskin Deposition, at 126:16-128:9; Docket No. 26-10, Andrea Douglas Deposition, at 41:9-25, 99:8-12.) Baskin alleges that after he was fired, Pepsi attempted to besmirch his reputation by falsely announcing that video surveillance had captured Baskin stealing money from a vending machine. (Lowery Decl. at 2 ¶ 9; Williams Dep. at 35:1-20.)

Legal Standard

A. Motion to Strike

Federal Rule of Civil Procedure 56(c)(4) provides that an affidavit offered in opposition to a motion for summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." The Court must "use a scalpel, not a butcher knife" in considering a motion to strike, striking only portions that are inadmissible under Rule 56(c)(4). Upshaw v. Ford Motor Co., 576 F.3d 576, 593 (6th Cir. 2009) (internal citation omitted). That is, the Court must strike only the inadmissible portions of an affidavit rather than the affidavit's entirety. The party submitting the affidavits bears the burden of demonstrating that the witness has personal knowledge of the statements contained in the affidavit. Long v. Procter & Gamble Mfg. Co., No. 03-1097, 2005 WL 1631033, at *1 (W.D. Tenn. July 8, 2005). Furthermore, hearsay evidence cannot be considered on a motion for summary judgment. Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir. 1994).

B. Summary Judgment

Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

"[N]ot every issue of fact or conflicting inference presents a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere scintilla of evidence in support of his position; he must present evidence on which the trier of fact could reasonably find for him. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for summary judgment: "[T]he mere existence of a colorable factual dispute will not defeat a properly supported motion for summary judgment. A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate." Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012).


A. Motion to ...

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