United States District Court, E.D. Kentucky, Central Division, Lexington
JEFFREY C. SPAW, Plaintiff,
AMCOR RIGID PLASTICS USA, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge
matter is before the Court upon Defendant Amcor Rigid
Plastics USA, LLC's (“Amcor”) motion for
summary judgment [DE 24]. Plaintiff Jeffrey Spaw, a former
Amcor employee, brought this action alleging he was
terminated in violation of the Age Discrimination in
Employment Act (“ADEA”) and the Kentucky Civil
Rights Act (“KCRA”). [DE 1]. The Court, having
reviewed the motion, the time for Spaw to file a response
having lapsed, and being otherwise sufficiently advised, this
matter is ripe for review.
Factual and Procedural Background
hired Spaw to work at a plant located in Nicholasville,
Kentucky in June 2011. [DE 1 at 1-2]. Following a series of
reprimands, Spaw's employment with Amcor was terminated
on May 8, 2017. [DE 1 at 2-7]. At the time of his
termination, Spaw was fifty-four years old. [DE 1 at 2].
Because Spaw believed he was terminated based on his age, he
filed a charge of age-based discrimination under the ADEA
with the Equal Employment Opportunity Commission
(“EEOC”) and the Kentucky Commission on Human
Rights (“KCHR”). [DE 12-1; see DE 1-1,
EEOC Dismissal and Notice]. The EEOC issued a Dismissal and
Notice of Rights in January 2018, indicating that the EEOC
was unable to establish a statutory violation, but informed
Spaw that he had the right to file a lawsuit within ninety
days of the notice. [DE 1-1 at 1]. Spaw initiated this
lawsuit on April 4, 2018, alleging violations of the ADEA, 26
U.S.C. § 623, and the KCRA, K.R.S. §
the issuance of scheduling orders [DE 18-19], counsel for
Spaw filed and this Court granted their motion to withdraw
[DE 20-21]. Amcor filed a motion for summary judgment [DE 24]
and several motions in limine [DE 25-27] on July 15, 2019.
Per Local Rule 7.1, Spaw's deadline to respond to those
motions was August 5, 2019. Spaw has neglected to appear in
the case since his former counsel withdrew and he has failed
to respond to Amcor's above-mentioned motions. Consistent
with this Court's practice, Spaw was ordered to show
cause why Amcor's motion for summary judgment should not
be granted and was warned that his failure to adequately
respond may result in the entry of judgment in favor of
Amcor. [DE 28 at 2, PageID #427]. Spaw has failed to respond
to the Court's order.
judgment is appropriate only when no genuine dispute exists
as to any material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party has the burden to show that “there is an absence
of evidence to support the nonmoving party's case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
“A dispute about a material fact is genuine if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Smith v. Perkins
Bd. of Educ., 708 F.3d 821, 825 (6th Cir. 2013)
(internal quotations omitted). The Court construes the facts
in the light most favorable to the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
failing to timely respond to Amcor's motion for summary
judgment, Spaw waives opposition to the motion. See
Humphrey v. U.S. Att'y Gens. Office, 29 Fed.Appx.
328, 331 (6th Cir. 2008); Resnick v. Patton, 258
Fed.Appx. 789, 790-91 n.1 (6th Cir. 1989); Walker v.
Jones, No. 09-cv-393-GFVT, 2010 WL 1838969, at *1 (E.D.
Ky. May 5, 2010). Spaw's lack of response is grounds for
this Court to grant the motion under local rules.
See LR 7.1(c).
does not dispute that Spaw could establish a presumption of
age discrimination under the ADEA. [DE 24 at 21, PageID #243].
Instead, Amcor claims it terminated Spaw's employment for
a legitimate, non-discriminatory reason: his lengthy history
of poor job performance. [Id.]. Amcor cites to
several disciplinary actions leading up to Spaw's
termination, including a plethora of warnings regarding his
continued failure to follow proper procedure. [Id.
at 21-23, PageID #243-45]. Following this explanation, Spaw
had the burden of showing by a preponderance of the evidence
that the given reasons for termination had no basis in fact,
that they did not actually motivate the discharge, or that
they were insufficient to warrant dismissal. Sander v.
Gray Television Grp., Inc., 478 Fed.Appx. 256, 265 (6th
also briefly mentions in the complaint alleged harassment he
received because of his age in violation of the ADEA. [DE 1
at 8, PageID #8]. Amcor denies that Spaw was subjected to
pervasive harassment that created an objectively hostile work
environment. [DE 24 at 26, PageID #248]. Based on facts in
the record, Amcor points out that of the few comments Spaw
alleged were harassment about his age, none were made with
animus and did not create a work environment Spaw could
subjectively regard as abusive. [Id. at 26-27,
PageID #248-49]. Spaw never complained of and Amcor had no
evidence of his harassment. [Id. at 27, PageID
Spaw has not responded to Amcor's motion, which sets out
a non-discriminatory reason for his termination and dispels
the existence of pervasive harassment, he waives any
opposition to the motion and judgment should be granted as a
matter of law. Humphrey, 29 Fed.Appx. at 331. The
Court having reviewed Amcor's motion for summary judgment
and being otherwise sufficiently advised, IT IS
ORDERED as follows:
Defendant Amcor Rigid Plastics USA, LLC's motion for
summary judgment [DE 24] is hereby GRANTED;
Claims against Defendant Amcor Rigid Plastics USA, LLC, are
hereby DISMISSED WITH PREJUDICE; and
Defendant Amcor Rigid Plastics USA, LLC, is hereby