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Jackson v. Aulick Chemical Solutions, Inc.

United States District Court, E.D. Kentucky, Lexington

January 5, 2018

WIL JACKSON, Plaintiff,



         This 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.


         This 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.

         The 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”).[1] For example, Jackson's daily log repeatedly contained the heading: “FOR MY RECORDS AND JUSTIFICATION IF & AS NEEDED.” (DE 15, Ex. B, Daily Logs).

         On June 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).

         On July 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.

         Aulick 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).

         On 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).


         A. Applicable Law

         Although 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).

         Federal 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.

         Plaintiff 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).

         Kentucky 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).

         Upon 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 retaliation. Id.

         B. Standard of Review

         Summary 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. Id.

         Once a 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 ...

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