United States District Court, E.D. Kentucky, Lexington
MEMORANDUM OPINION & ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE.
case is before the Court on Defendant's Motion for
Summary Judgment [DE 15]. For the reasons stated herein,
Defendant's motion will be denied.
case presents an ironic story: a company outing meant to
boost morale and teamwork resulted in an injury that, in
Plaintiff's view, ultimately led to his termination and
this acrimonious lawsuit.
parties agree on very few of the facts which underlie this
action. Wil Jackson, an engineer now age 72, began working
for Defendant Aulick Chemical Solutions, Inc. (ACS) in
January 2010. ACS is a manufacturer of water and wastewater
treatment chemicals and industrial compounds. Jackson was
hired on as a sales and customer representative working out
of his home in Tennessee. In February 2016, Tim Aulick, owner
of ACS, informed Jackson he would be reassigned to a research
and development engineering position. The base pay and
benefits were equal, but unlike the sales position, the
engineering position did not bring with it the promise of
commission, which was as much as $10, 000 or more per year.
It is not surprising, then, that Jackson viewed this as a
less desirable position. Throughout his employment with ACS,
Jackson maintained a work-journal of sorts that the parties
refer to as his “daily log.” This daily log was
something Jackson kept for his personal use and detailed
Jackson's services, business communications, business
travel, and more. The daily log was not required by ACS or
turned in for purposes of billing or pay. Jackson's daily
log heavily implies that he maintained it, at least in part,
for what is often referred to in the vernacular as
“CYA” (“Cover Your
Ass”). For example, Jackson's daily log
repeatedly contained the heading: “FOR MY RECORDS AND
JUSTIFICATION IF & AS NEEDED.” (DE 15, Ex. B, Daily
23, 2016, Jackson fell at the company team-building retreat.
Jackson asserts he injured his hip at this event, an
assertion Defendant questions. However, for purposes of this
motion, the Court assumes Jackson's allegations of his
injury and treatment are true and were caused by the fall, as
there are several instances in the record indicating that he
was injured or complained of pain in the days following the
fall. (DE 15, Ex. B, p. 25; Ex. A, Depo. of Wil Jackson, p.
58 - 63; 72).
17, 2016, Jackson sought medical treatment for pain at the
emergency room. He was given prescription-strength Ibuprofen
and discharged. He took two days off work, during which he
had a pleasant email exchange with Troy Taubert (head of
chemical sales and technologies at ACS) and Aulick about his
situation, filing a workers' compensation claim, and his
need for time off.
believed the treatment to be minor and therefore requested
that Jackson forward the medical bills to ACS for payment
directly, rather than filing a workers' compensation
claim. Jackson, however, recalls Aulick pressuring him not to
file a workers' compensation claim, and states Aulick
warned Jackson he “would regret this” if he went
forward with filing a workers' compensation claim. (DE
15, Ex. A, Depo. of Wil Jackson, p. 58 - 63; 72).
August 1, 2016, Taubert informed Jackson that he was
terminated. ACS gave Jackson six weeks' severance pay.
The reason for this termination is the crux of the dispute
between the parties. Jackson contends he was fired for filing
a workers' compensation claim; ACS contends he was fired
for poor job performance (specifically, for the loss of the
CUB client in Jackson's territory), economic hardship
which resulted from that poor job performance, and/or because
he was “unwilling to work with them on their plan to
transition him to a new position.” (DE 15, Mem. in
Supp. of Mot. for Summ. J., pg. 20).
JURISDICTION AND STANDARD
not raised by the parties, the Court must set out its basis
for subject matter jurisdiction in this case. Plaintiff filed
this case in federal court originally (not removed to federal
court) pursuant to diversity jurisdiction and alleges only
one cause of action: violation of the Kentucky Workers'
Compensation Act. Jurisdiction is not challenged by Defendant
and is found under 28 U.S.C. § 1332 as the parties are
diverse and the amount in controversy is met as established
during a hearing be Magistrate Judge Wier. (DE 12).
courts sitting in diversity apply federal procedural law.
Hanna v. Plumer, 380 U.S. 460, 465 (1965). The
substantive law of the forum state governs the claims
asserted. Erie R. Co. v. Tompkins, 304 U.S. 64
(1938); Moore, Owen, Thomas & Co. v. Coffey, 992
F.2d 1439 (6th Cir. 1993). Accordingly, the Court will
evaluate the Motions in accordance with the Federal Rules of
Civil Procedure while applying substantive Kentucky law to
the underlying claim.
brings a single cause of action pursuant to the KWCA. The Act
provides that no “employee shall be harassed, coerced,
discharged, or discriminated against in any manner whatsoever
for filing and pursuing a lawful claim” for
workers' compensation benefits. KRS 342.197(1).
courts apply a modified version of the familiar
McDonnell-Douglas burden-shifting scheme to
retaliation claims. Ky. Ctr. For Arts v. Handley,
827 S.W.2d 697, 701 (Ky. App. 1991); Chavez v. Dakkota
Integrated Sys., LLC, 2011 WL 2148373 at *13 (W.D.Ky.
May 31, 2011); Hodge v. Dollar General, 2011 WL
3880486 at *8 (E.D.Ky. Aug. 29, 2011). A plaintiff can
establish a prima facie case of workers'
compensation retaliation through “proof that: (1) he
engaged in a protected activity; (2) the defendant knew that
the plaintiff had done so; (3) adverse employment action was
taken; and (4) that there was a causal connection between the
protected activity and the adverse employment action.”
Dollar Gen. Partners v. Upchurch, 214 S.W.3d 910,
915-17 (Ky. App. 2006). “The fourth element of the test
requires the employee to demonstrate that her engagement in a
protected activity was a substantial and motivating factor
but for which the employee would not have been
discharged.” Chavez v. Dakkota Integrated Sys.,
LLC, 832 F.Supp.2d 786, 800-01 (W.D.Ky. 2011)(quotation
marks and citation omitted).
the plaintiff proving a prima facie case for
workers' compensation retaliation, the burden shifts to
the defendant “to show a non-retaliatory reason for the
adverse employment decision.” Dollar Gen.
Partners at 16. If the defendant can satisfy its burden,
the plaintiff must show by a preponderance of the evidence
that the proffered explanation is a pretext for the unlawful
Standard of Review
judgment is appropriate when 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). If there is a dispute
over facts that might affect the outcome of the case under
governing law, then entry of summary judgment is precluded.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The moving party has the ultimate burden of
persuading the court that there are no disputed material
facts and that he is entitled to judgment as a matter of law.
party files a properly supported motion for summary judgment
by either affirmatively negating an essential element of the
non-moving party's claim or establishing an affirmative
defense, “the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.'” Id. at 250 (quoting Fed.R.Civ.P.
56(e)). “The mere existence of a scintilla of evidence
in support of the [non-moving party's] position will ...