United States District Court, W.D. Kentucky, Owensboro Division
DONALD E. PAWLEY PLAINTIFF
BEL BRANDS USA, INC. DEFENDANT
MEMORANDUM OPINION AND ORDER
H. McKinley Jr., Senior United States District Judge.
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.
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].
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.].
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].
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].
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].
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].
Standard of Review
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).
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
Pawley raises wrongful discharge, disability discrimination,
age discrimination, and hostile work environment
claims. [DN 1]. The Court will discuss each claim
Wrongful Discharge Claim
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
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
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.
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).
Mr. Pawley alleges that he was wrongfully discharged in
violation of KRS § 338.121 because he reported safety
violations to Bel Brands. [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