United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Chief Judge United States District Court
matter is before the Court on Defendant's Motion for
Summary Judgment (DN 38). The motion is now ripe for a
decision. For the reasons outlined below, the motion is
STATEMENT OF FACTS AND CLAIMS
February 9, 2009, Plaintiff Cindy Charles
(“Charles') was hired by Defendant N.G.T.
Corporation (“NGT”) as a sales representative; at
the time of her hiring she was 49 years of age. (Compl.
¶ 7, DN 1-1; Charles Dep. 29:2-6, Sept. 27, 2017, DN
38-7). NGT, which does business as Coverall Service Company,
“is a franchisor of commercial cleaning franchises
throughout the United States.” (Schroter Dep. 8:11-13,
Sept. 28, 2017, DN 38-3; Def.'s Mem. Supp. Mot. Summ. J.
1, DN 38-1).
the pertinent time period, NGT had seven different
territories-one of which was Louisville, Kentucky. (Schroter
Dep. 15:1-7). Each of those territories was overseen by a
regional director and, prior to her termination, Charles
served as the regional director for Louisville. (Charles Dep.
100:24-101:5; Schroter Dep. 15:7-8). Regional directors are
responsible for overseeing the sales and operations staff
comprised of sales representatives, franchise advisors, and
administrative staff. (Schroter Dep. 29:14-19). Within the
management structure of NGT, the regional directors report to
Michael Ward (“Ward”), Vice President of
Operations, and Scott Schroter (“Schroter”),
Executive Vice President, which along with many other members
of management operate out of NGT's executive officer in
Columbia, Maryland. (Schroter Suppl. Decl. ¶ 7, DN 44-5;
Schroter Dep. 26:5-14, 27:10-28:3). At the top of NGT's
management structure are: Tom Gilliland
(“Gilliland”), President and Chief Executive
Officer, who lives in Jacksonville, Florida; Dick Grummell
(“Grummell”), Vice President and Chief Operating
Officer, who lives in Phoenix, Arizona; and Earol Bert
(“Bert”), Vice President and Chief Financial
Officer, who lives in Fort Myers, Florida. (Schroter Dep.
parties disagree on the events precipitating Charles'
termination on April 25, 2016. In general, NGT maintains that
it terminated Charles' employment due to poor job
performance, while Charles contends that it was due to age
discrimination and in retaliation for reporting workplace
misconduct. At the time of her termination, Charles was 56
years of age. (Charles Dep. 211:13-21).
filed this action in Jefferson Circuit Court, Kentucky,
asserting claims of age discrimination and retaliation in
violation of the Kentucky Civil Rights Act
(“KCRA”), KRS Chapter 344; wrongful termination;
negligent retention and supervision; and intentional
infliction of emotional distress (“IIED”).
(Compl. ¶¶ 11-40). NGT timely removed the case to
this Court. (Notice Removal, DN 1).
Court has subject-matter jurisdiction of this matter based
upon diversity jurisdiction. See 28 U.S.C. § 1332.
STANDARD OF REVIEW
ruling on a motion for summary judgment, the Court must
determine whether there is any genuine issue of material fact
that would preclude entry of judgment for the moving party as
a matter of law. See Fed.R.Civ.P. 56(a). The moving
party bears the initial burden stating the basis for the
motion and identifying evidence in the record that
demonstrates an absence of a genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). If the moving party satisfies its burden, the
non-moving party must then produce specific evidence
establishing the existence of a genuine issue of fact for
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986).
the Court must view the evidence in the light most favorable
to the non-moving party, the non-moving party must do more
than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (citation omitted). Rather, the non-moving party must
present specific facts proving that a genuine factual issue
exists by “citing to particular parts of the 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.
NGT's motion, it seeks summary judgment on Charles'
claims. (Def.'s Mem. Supp. Mot. Dismiss 16-38). Each of
the claims is addressed below.
Complaint, Charles asserts two distinct claims under the
KCRA: age discrimination and retaliation. (Compl.
¶¶ 11-24). As the Kentucky Supreme Court has noted,
“[i]n 1966, the General Assembly passed the KCRA to
place the Commonwealth on par with the protections guaranteed
in the Federal Civil Rights Act of 1964.” Bd. of
Regents of N. Ky. Univ. v. Weickgenannt, 485 S.W.3d 299,
305 (Ky. 2016). The KCRA was subsequently amended to reflect
added federal protections including claims brought under the
Age Discrimination in Employment Act of 1967
(“ADEA”). See Id. at 305 n.3
(citing KRS 344.020(1)). As this Court has explained,
“[c]laims brought under the KCRA are ‘analyzed in
the same manner' as ADEA claims.” Winchester v.
City of Hopkinsville, 93 F.Supp.3d 752, 762 (W.D. Ky.
2015) (citations omitted).
Court will first consider Charles' age discrimination
under the KCRA. NGT contends that this claim fails as a
matter of law because NGT is not subject to the KCRA because
it did not have a sufficient No. of employees to qualify as
an employer. (Def.'s Mem. Supp. Mot. Dismiss 16, 22-24).
Charles argues that there is sufficient evidence that NGT is
an employer and relies upon her own declaration. (Pl.'s
Resp. Def.'s Mot. Summ J. 23-25, DN 43).
Sixth Circuit has instructed, “[t]he numerosity
threshold is an element of the plaintiff's case rather
than a jurisdictional requirement.” Sanford v. Main
Street Baptist Church Manor, Inc., 449 Fed.Appx. 488,
491 (6th Cir. 2011) (citing Arbaugh v. Y & H
Corp., 546 U.S. 500, 504 (2006)). Thus, the Court must
determine whether NGT is an employer. If NGT is not, Charles
cannot prove a prima facie case of age discrimination.
the KCRA, the term “employer” is defined as
“a person who has eight (8) or more employees within
the state in each of twenty (20) or more calendar weeks in
the current or preceding calendar year and an agent of such a
person . . . .” KRS 344.030(2). Charles was terminated
in 2016, so the Court must determine NGT's Kentucky
employees in 2015 and 2016.
NGT operated in multiple states, the Court also must
determine which employees count for the purpose of KRS
344.030(2). As this Court has previously noted, the phrase
“‘[w]ithin the state' has been interpreted to
mean ‘physically within the state,' and not to
refer to those ‘located outside of Kentucky [who]
interact  with individuals inside of the state.'”
Himmelheber v. ev3, Inc., No. 3:07-CV-593-H, 2008 WL
360694, at *1 (W.D. Ky. Feb. 8, 2008) (second and third
alterations in original) (quoting Holmes v. Fieldstone
Mortg. Co., No. 05-230-C, 2006 WL 1523210, at *1 (W.D.
Ky. May 25, 2006)); see also Wright v. Swigart, No.
2016-CA-000854-MR, 2018 WL 565824, at *3 (Ky. App. Jan. 26,
2018) (“The limitation of the KCRA to employers with
eight or more employees ‘within the state' in the
required time precludes the KCRA from having extraterritorial
application. Under the terms of the statute, to be counted as
an employee, physical presence ‘within the state'
of Kentucky is required. In [Union Underwear Co. v.
Barnhart, 50 S.W.3d 188, 191-93 (Ky. 2001)], the Court
stressed that the KCRA is a supplement to the protections
afforded employees under the federal law and cautioned that
the KCRA must be interpreted to ‘avoid running afoul of
the Commerce Clause of the United States Constitution.'
The express language of the statute excludes the argument
that merely because a company conducts business in Kentucky
it is subject to the provisions of the KCRA.” (internal
support of its motion, NGT proffered two declarations from
Sue Clausen (“Clausen”), NGT's Accounting
Manager, who reviewed NGT's employee personnel files and
payroll records for employees working for NGT during the
relevant years. (Clausen Decl. ¶¶ 4, 19-20, DN
38-8; Clausen Suppl. Dec. ¶¶ 3-7, DN ...