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Pawley v. BEL Brands USA, Inc.

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

October 2, 2019

DONALD E. PAWLEY PLAINTIFF
v.
BEL BRANDS USA, INC. DEFENDANT

          MEMORANDUM OPINION AND ORDER

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

         This matter is before the Court on Defendant's Motion for Summary Judgment. [DN 20]. Fully briefed, this matter is ripe for decision. For the following reasons, the Court holds that Defendant's Motion is GRANTED.

         I. Background

         In April 2005, Plaintiff Donald E. Pawley was employed by Defendant Bel Brands USA, Inc. [DN 23-1 at 1]. Mr. Pawley was forty-nine years old at the time. [Id.]. He was hired to work at Bel Brands' facility in Leitchfield, Kentucky where it manufactures cheese. [Id.]. Around 2009, Mr. Pawley was diagnosed with high blood pressure. [Id. at 13]. In June 2009, Mr. Pawley became a Warehouse Operator. [Id. at 1]. He held this position until he was terminated in May 2016. [Id. at 1, 11].

         In August 2013, Rod Inman became Mr. Pawley's supervisor. [Id. at 2]. Mr. Pawley alleges that on at least three occasions he reported unsafe working conditions to his supervisors, including Mr. Inman. [DN 1 ¶¶ 18-21]. Mr. Pawley also alleges that Mr. Inman was “verbally abusive” and would make comments about his age or high blood pressure. [DN 23-1 at 15]. Mr. Pawley never reported the comments to anyone in management or human resources. [Id. at 15- 16]. Nor did Mr. Pawley ever make any complaints that he believed that he was being discriminated against or harassed by Mr. Inman. [Id.].

         When Mr. Pawley was hired, he received and reviewed Bel Brands' Employee Handbook. [Id. at 2]. It describes the progressive disciplinary system which includes four levels: Level 1 (Verbal Warning), Level 2 (Written Warning), Level 3 (Final Written Warning and/or three-day suspension), and Level 4 (Termination). [Id. at 3-4]. It also explains that all warnings issued remain in effect for one calendar year from the date of issue. [Id. at 4]. Mr. Pawley received infractions in July 2005, September 2006, and October 2012. [Id.] But it was the four infractions that Mr. Pawley received in his last six months of employment that led to his termination. [Id. at 10].

         In December 2015, Mr. Inman gave Mr. Pawley a verbal warning because he was not pulling enough product. [Id. at 7]. In mid-April 2016, Mr. Pawley received a written warning for failing to place pulled supplies into the staging area. [Id. at 7-8]. In May 2016, Mr. Pawley received a three-day suspension related to a missing cage bolt on his forklift. [Id. at 8]. After his suspension, Mr. Pawley had a fourth performance infraction when he pulled whey powder out of order. [Id. at 9-11].

         Supply Chain Manager Paul Myers decided to terminate Mr. Pawley in accordance with the terms of Bel Brands' progressive discipline policy because it was Mr. Pawley's fourth performance infraction during the previous twelve months. [Id. at 10]. When Mr. Myers informed Mr. Inman of his decision to terminate Mr. Pawley, it was Mr. Inman that asked that Mr. Pawley be given another chance. [Id. at 10-11]. However, Mr. Myers explained to Mr. Inman that the progressive discipline policy needed to be followed and instructed Mr. Inman to deliver the termination decision to Mr. Pawley. [Id.]. When Mr. Pawley was terminated he was sixty years old. [Id. at 16]. Since June 2016, Mr. Pawley has been working for Otis Bryant as a truck driver. [Id. at 14].

         Mr. Pawley filed suit against Bel Brands in July 2018, in Grayson County Circuit Court alleging (1) wrongful discharge; (2) disability discrimination; and (3) age discrimination. [DN 1-3]. Bel Brands removed the case to the United States District Court for the Western District of Kentucky, Owensboro Division based on diversity jurisdiction. [DN 1]. Bel Brands now moves for summary judgment. [DN 20].

         II. Standard of Review

         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.

         III. Discussion

         Mr. Pawley raises wrongful discharge, disability discrimination, age discrimination, and hostile work environment claims.[1] [DN 1]. The Court will discuss each claim in turn.

         A. Wrongful Discharge Claim

         Mr. Pawley's Complaint alleges Bel Brands wrongfully terminated him in violation of the well-defined public policies of the Kentucky Occupational Safety and Health Act (“KOSHA”) in KRS § 338.121. [DN 1 ¶¶ 55-70; DN 23 at 3]. Bel Brands argues that KOSHA preempts Mr. Pawley's wrongful discharge claim. [DN 20 at 14].

         Employment relations in Kentucky are at-will, which means that an employer may discharge an at-will employee for any cause, or even no cause. Benningfield v. Pettit Envtl., Inc., 183 S.W.3d 567, 570 (Ky. Ct. App. 2005). An employee can pursue a wrongful discharge claim only if he or she was discharged “contrary to a fundamental and well-defined public policy as evidenced by existing law.” Id. (citation omitted). However, this rule has an exception. An employee can only pursue a wrongful discharge claim “when the statute creating the public policy exception does not provide a structure for pursuing a claim.” Id. (citation omitted). KRS § 338.121 “provides both the public policy exception and provides the remedy for its violation.” Id. at 571.

         KOSHA's purpose is to protect workers from dangerous conditions in the workplace. KRS § 338.011. To that end, any employee who believes that an employer is violating work and safety health standards may request an inspection. KRS § 338.121(1). An employee can request an inspection by giving notice to the Commissioner of the Department of Workplace Standards. Id.; KRS § 338.015(7). KRS §338.121(3) also prohibits retaliation. If an employee believes that he or she has been wrongfully discharged, he or she may file a complaint with the Commissioner within a reasonable time. Id.

         In Main v. Rio Tinto Alcan Inc., No. 4:12CV-00110, 2016 WL 698163, at *8 (W.D. Ky. Feb. 19, 2016), the plaintiff alleged that he was discharged in violation of KRS § 338.011 for reporting safety concerns to his employer. The Court held that the plaintiff could not “seek relief for wrongful termination because the statutes which create the public policy on which he relies specify the civil remedy for a violation.” Id.; see Smith v. Caterpillar, Inc., 304 F. App'x. 391, 394 (6th Cir. 2008) (holding that the plaintiff could not state a claim for wrongful discharge because both the Occupational Safety and Health Act (“OSHA”) and KOSHA preempt wrongful discharge claims); see also Street v. U.S. Corrugated, Inc., No. 1:08-cv-00153, 2011 WL 1456842, at *3 (W.D. Ky. Apr. 15, 2011) (holding that the plaintiffs' wrongful discharge claim based on OSHA was preempted); see also Benningfield, 183 S.W.3d at 571 (holding that a plaintiff's wrongful discharge claim under KRS § 338.121 was preempted).

         Here, Mr. Pawley alleges that he was wrongfully discharged in violation of KRS § 338.121 because he reported safety violations to Bel Brands.[2] [DN 23 at 3-4]. But Mr. Pawley cannot seek relief for wrongful termination because KRS § 338.121 specifies a civil remedy for a violation of the statute. Consequently, Bel Brands is entitled to summary judgment because Mr. Pawley's wrongful termination claim is preempted.

         B. Disability ...


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