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Hattenbach v. Charles Kirchner & Son, Inc.

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

March 26, 2019



          Joseph H. McKinley Jr., United States District Court District Judge

         This matter is before the Court on a motion by Defendant, Charles Kirchner & Son, Inc., for summary judgment [DN 28]. Fully briefed, this matter is ripe for decision.


         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., Ltd. 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. It is against this standard the Court reviews the following facts.


         Plaintiff, Thomas Hattenbach, brings this action following the termination of his employment at Charles Kirchner & Son, Inc. Plaintiff was employed by Complete Lumber since 2006. Complete Lumber maintained three locations in Henderson, Kentucky; Madisonville, Kentucky; and Evansville, Indiana. Plaintiff testified that he was a controller for Complete Lumber and was responsible for the financial information and the accounts for the entire company. Defendant, Charles Kirchner & Son, Inc., purchased Complete Lumber in 2014. Plaintiff was retained as an employee. At the time he was hired by Defendant, Plaintiff was 60 years old and was hired as the manager over the three new locations which were formerly Complete Lumber. On May 11, 2016, Plaintiff was terminated from his employment with Defendant. At the time of his termination, Plaintiff was 62 years old.

         On September 29, 2017, Plaintiff filed this action against Defendant alleging that Defendant terminated him because of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”) and the Kentucky Civil Rights Act, KRS §344.040 (“KCRA”). In his Amended Complaint filed on October 27, 2017, Plaintiff alleges that he was over 40 years old, qualified for his job, and subjected to an adverse employment action when he was terminated. Specifically, Plaintiff alleges that he was 62 years old when terminated and “believes his duties and responsibilities of Manager over the locations he previously managed have been assumed by a ‘substantially younger' similarly-situated individual.” (Amended Complaint at ¶ 17.) In addition, Plaintiff alleges that after the Defendant purchased Complete Lumber, Plaintiff was subjected to different treatment, terms, and conditions in his employment when compared to significantly younger, similarly-situated individuals in the support offered at the locations he was responsible, in responses to safety issues cited by Plaintiff, and in standards of performance. (Id. at ¶¶ 13, 14.) In addition, Plaintiff points to age-based comments made by Kurt Kirchner, President of the company, as evidence of discrimination. Plaintiff states that “on multiple occasions he heard Kurt Kirchner make discriminatory comments based on age, referring to the sales force for the Defendant as a ‘sea of gray' and that ‘the old guys aren't any good at selling.'” (Id. at ¶ 15.) In response to Plaintiff's interrogatories, Defendant stated that it terminated Plaintiff's employment for “his failure to communicate effectively, for his failure to follow company direction and instruction, and for his failure to satisfactorily perform his position.” (DN 34 Ex. 3 at 14.)


         The ADEA makes it “unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). Under the KCRA, it is unlawful for an employer “to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, national origin, sex, age forty (40) and over . . . .” KRS § 344.040(1)(a). “Claims brought under the KCRA are ‘analyzed in the same manner'” as claims brought under the ADEA. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir. 2008) (quoting Williams v. Tyco Elec. Corp., 161 Fed.Appx. 526, 531 & n. 3 (6th Cir. 2006)). See also Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky. 2005).

         Defendant argues that summary judgment should be granted in its favor on Plaintiff's age discrimination claim because he fails to establish a claim using direct evidence or the McDonnell Douglas analysis. A plaintiff bringing an age discrimination claim has the initial burden of proving “that age was a determining factor in the adverse employment action that the employer took against him.” Allen, 545 F.3d at 394 (citing Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir. 1993)). This may be proven either through direct or circumstantial evidence. Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003).

         A. Direct Evidence

         “Direct evidence, in the context of an age-discrimination claim, is evidence that, ‘if believed, requires the conclusion that age was the ‘but for' cause of the employment decision.'” Jecker v. Monumental Life Ins. Co., 2016 WL 2993623, at *6 (W.D. Ky. May 23, 2016) (quoting Scheick v. Tecumseh Pub. Sch., 766 F.3d 523, 530 (6th Cir. 2014) (“[T]he inquiry includes both a predisposition to discriminate and that the employer acted on that predisposition.”)). In other words: “‘Direct evidence is evidence that proves the existence of a fact without requiring any inferences.'” Jecker, 2016 WL 2993623, at *6 (quoting Scheick, 766 F.3d at 530 (quoting Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004)). “Examples of direct evidence include ‘a facially discriminatory employment policy or a corporate decision maker's express statement of a desire to remove employees in the protected group.'” Taylor v. Dollar Gen. Corp., 2015 WL 3872341, at *3 (E.D. Ky. June 23, 2015) (quoting Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)).

         The Court finds unpersuasive Plaintiff's argument that he possesses direct evidence of age discrimination. In support of this contention, Plaintiff argues that Kurt Kirchner's animus toward Plaintiff's age is displayed through his disparaging age-based comments made to Plaintiff. Plaintiff testified that during one meeting with the sales team, Kirchner stated that “as I look out there, I see, a sea of gray.” (Thomas Hattenbach Dep. at 165-166.) Plaintiff further testified that at that same meeting Kirchner stated that “everyone is old out here.” (Id. at 169.) Additionally, Plaintiff testified that at another sales meeting, Kirchner stated that that he didn't know “if the old guys can do the job.” (Id. at 179-180.) Plaintiff testified that these statements were directed at the sales team. Plaintiff argues that Kirchner's statements offended him and the sales team and reasonably suggests that Kirchner wanted younger managers at the company. Plaintiff asserts that Kirchner's statement that he didn't know if the old guys can do the job insinuated that Plaintiff could not perform his job due to his age and that his age ultimately led to his termination of employment. Further, Plaintiff contends that Kirchner's animus for him was expressed verbally to him when Kirchner told him that he “was nothing more than a glorified bookkeeper for Complete Lumber.” (Hattenbach Dep. at 137; DN 34 at 7.) Finally, Plaintiff points to the notes of Kirchner regarding ...

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