Opinion
NO. 2011-CA-001580-MR
12-14-2012
PENNY RILEY APPELLANT v. T/G AUTOMOTIVE SEALING KENTUCKY, LLC APPELLEE
BRIEF FOR APPELLANT: Aubrey Williams Louisville, Kentucky BRIEF FOR APPELLEE: Craig P. Siegenthaler Claire M. Vujanovic Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN ATKINS, JUDGE
ACTION NO. 07-CI-00823
OPINION
AFFIRMING
BEFORE: MAZE, MOORE, AND TAYLOR, JUDGES. MOORE, JUDGE: Penny Riley appeals from an order and judgment of the Christian Circuit Court summarily dismissing her discrimination claim against appellee, T/G Automotive Sealing Kentucky, LLC (TGASK). Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
TGASK is a manufacturing facility that makes and installs weather stripping for vehicles. Its employees work in teams, and each team works in a different section, or "cell," within the facility. TGASK formerly employed Penny Riley as a "team leader," which is a supervisory position. TGASK subsequently demoted Riley to "team member," a regular non-supervisory position, and suspended her from work for a period of three days after it cited her for a disciplinary infraction on March 23, 2007. The citation at issue provides, in relevant part:
Policy:
Page 6, 7 and 24 in company handbook. SEE ATTACHED.
Details of Issue/Problem: (dates, comments, etc.)
On 3/21/07 it was noted that you were out of your area of responsibility several times and in the 500N area. You were involved in disruptive behavior with a 500N team member which caused loo [sic] of production on several cells.
Future Expectations(s): (to be supplied by the Manager/Supervisor and/or the Employee)
You will be demoted from a team leader back to a team member. Any further disruptive behavior of any kind will result in termination. This is your final warning.
An "oral reminder" is the first level of corrective action under TGASK's employee disciplinary policy. It is followed by a "written reminder," a "final warning," and, lastly, "termination." As noted, Riley received a "final warning." Mike Storm was the general manager who ultimately approved issuing this citation to Riley. Storm was TGASK's general manager for a period of three or four years, ending on or about September 10, 2009. Although he testified that he had the ultimate authority to approve the disciplinary action against Riley, Riley's department manager and the supervisor who signed her citation on behalf of TGASK was Scott Bacon. Storm testified in his deposition that he specifically considered the "workplace violence" section contained in pages 6 and 7 of the TGASK employee handbook (listed at the top of Riley's citation) in his decision to demote Riley. In relevant part, that section provides:
WORKPLACE VIOLENCE
TGASK is concerned about the increased violence in society that has filtered into many workplaces throughout the United States. TGASK will not condone any acts or threats of violence against its Team Members, customers or visitors while they are engaged in business with or on behalf of TGASK, on or off premises. In keeping with the spirit and intent of this policy, and to ensure that TGASK objectives in this regard are attained, it is the commitment of TGASK to:
To provide a safe and healthy work environment.
To take prompt remedial action, up to and including immediate termination, against any Team Member who engages in any threatening behavior or act of violence, or uses any abusive or threatening language or gestures.
With that said, there are several accounts of what Riley did on March 21, 2007, to warrant suspension and demotion; although they differ in some respects, each of these accounts agree that Riley left her work section; entered the work area of Latoya Grubbs, a team member whose work section is a fair amount of distance away from Riley's; and proceeded to get into an altercation with Latoya which lasted several minutes, necessitated managerial intervention, involved screaming and profanity, and concerned several statements from Riley about Latoya's choice of shoes and also to the effect that Latoya's boyfriend had been buying Riley gifts without Latoya's knowledge. These accounts further agree that Riley's daughter, team member Denita Riley, left her own work section with the intent of calming Riley down, but instead took part in the altercation and caused the situation to escalate. Eventually, Riley, Latoya and Denita were separated by supervisory personnel and sent to the office.
In his deposition, Storm testified that based upon his examination of the various accounts of the incident and other conversations he had with employees he understood that the altercation involving Riley and Latoya "got loud and disruptive. It interrupted production in the cells we're talking about. They pretty much quit working and was [sic] watching instead of doing their job." Storm also testified that he had spoken with Latoya prior to approving issuing a citation to Riley, and that Latoya had told him that she had felt harassed and threatened by Riley shortly before the altercation because Riley had been walking back and forth in front of Latoya's work area multiple times. Also, a statement given by team member Cynthia Steele indicated that Riley had been walking through Latoya's work area that day, and Steel accused Riley of doing so in an effort to provoke Latoya.
In her deposition, Riley testified that she did not see whether the altercation caused any other employees to stop working and become spectators, but fifteen TGASK employees, aside from Latoya and Riley, gave descriptive accounts of the incident. Riley admitted that the altercation caused herself, Latoya, and Denita to stop working. Riley admitted that Latoya had previously bumped into her in the break room in January of 2007, that the incident "took a lot of effort to put behind" her, and that she told her supervisor that she was "not gonna take anything else off of [Latoya]." Riley admitted that she left her work area and walked back and forth in front of Latoya's work area on several occasions that day and that their respective work areas were a fair amount of distance apart. Riley admitted engaging in the above-described altercation with Latoya on the production floor. Riley admitted that when another team leader grabbed her and tried to separate her from the situation, she refused to leave. Moreover, pages six, seven, and 24 of the employee handbook were noted on and attached to Riley's citation, and Riley signed and acknowledged the citation without including anything in the "Team Member Response" space above her signature.
The record does not reveal the extent of any discipline given to Denita or Latoya, but Riley admits that it was appropriate for TGASK to discipline her for her role in the altercation. Approximately three months after she received her suspension and demotion, Riley nonetheless filed suit in Christian Circuit Court against TGASK for racial discrimination as an African-American. She asserted that the level of discipline she received for the offense she committed was disproportionately harsh compared to similar instances that involved Caucasian co-workers. After a period of discovery, the circuit court summarily dismissed her discrimination claim. This appeal followed.
STANDARD OF REVIEW
Summary judgment serves to terminate litigation where "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kentucky Rule of Civil Procedure (CR) 56.03. It is well established that a party responding to a properly supported summary judgment motion cannot merely rest on the allegations in his pleadings. Continental Casualty Co. v. Belknap Hardware & Manufacturing Co., 281 S.W.2d 914 (Ky. 1955). "[S]peculation and supposition are insufficient to justify a submission of a case to the jury, and . . . the question should be taken from the jury when the evidence is so unsatisfactory as to resort to surmise and speculation." O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citing Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). "'Belief' is not evidence and does not create an issue of material fact." Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky.1990); see also Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007) ("A party's subjective beliefs about the nature of the evidence is not the sort of affirmative proof required to avoid summary judgment.") Furthermore, the party opposing summary judgment "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 481 (Ky. 1991) (internal citations and quotations omitted).
On appeal, we must consider the evidence of record in the light most favorable to the non-movant and must further consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky.App.1996). "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo'" Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (footnote omitted).
ANALYSIS
The circuit court's order of summary judgment includes nothing beyond a bare recital that it granted summary judgment in favor of TGASK, and Riley begins her appeal by taking umbrage with the fact that the circuit court denied her post-judgment CR 59.05 motion for the circuit court to justify its summary judgment order with findings of fact and conclusions of law. However, "pursuant to CR 52.01, specific findings and conclusions of law are not required with summary judgments." Blue Movies, Inc. v. Louisville/Jefferson County Metro Government, 317 S.W.3d 23, 39 (Ky. 2010) (citing Wilson v. Southward Inv. Co. No. 1, 675 S.W.2d 10 (Ky. App. 1984)). In the absence of any specificity we will presume that the circuit court's order is based upon each of the grounds TGASK asserted in its motion for summary judgment, and that the circuit court considered and rejected each of the opposing arguments offered by Riley in her response to TGASK's motion. See, e.g., Sword v. Scott, 293 Ky. 630, 169 S.W.2d 825, 827 (1943) ("In the absence of the court's specifying the ground or grounds for his dismissal of the petition, it will be assumed that it was upon any or all of the grounds which the proof sufficiently established.") Accordingly, we will presume that the circuit court found that Riley failed to present the requisite affirmative evidence in support of her discrimination claim.
Pursuant to KRS 344.040(1)(a), 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, [or] age forty (40) and over[.]" In Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492 (Ky. 2005), a case involving age discrimination, the Supreme Court of Kentucky explained the process for establishing a claim for discrimination:
There are two paths for a plaintiff seeking to establish an age discrimination case. One path consists of direct evidence of discriminatory animus. Absent direct evidence of discrimination, Plaintiff must satisfy the burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The reasoning behind the McDonnell Douglas burden shifting approach is to allow a victim of discrimination to establish a case through inferential and circumstantial proof. As Justice O'Connor has noted, "the entire purpose of the McDonnell Douglas primaWilliams, 184 S.W.3d at 495-96.
facie case is to compensate for the fact that direct evidence of intentional discrimination is hard to come by." Price Waterhouse v. Hopkins, 490 U.S. 228, 271, 109 S.Ct. 1775, 1802, 104 L.Ed.2d 268 (1989) (O'Connor, J. concurring); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 622, 83 L.Ed.2d 523 (1985) ("The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the 'plaintiff [has] his day in court despite the unavailability of direct evidence.'"). If a plaintiff attempts to prove its case using the McDonnell Douglas framework, then the plaintiff is not required to introduce direct evidence of discrimination. Kline v. Tennessee Valley Auth., 128 F.3d 337, 349 (6th Cir.1997).
On appeal, Riley concedes that no direct evidence supports her claim of discrimination, and instead relies upon the prima facie analysis set forth in McDonald Douglas. In Murray v. Eastern Kentucky University, 328 S.W.3d 679, 682 (Ky. App. 2009), this Court set forth the elements as follows: "(1) she was a member of a protected group; (2) she was subjected to an adverse employment action; (3) she was qualified for the position; and (4) 'similarly situated' non-protected employees were treated more favorably." The first three of these elements are not in dispute.
Regarding the fourth element,
In order for two or more employees to be considered similarly-situated for the purpose of creating an inference of disparate treatment, the plaintiff must prove that all of the relevant aspects of [her] employment situation are nearly identical to those of the . . . employees who she alleges were treated more favorably. The similarity between the compared employees must exist in allCom. v. Solly, 253 S.W.3d 537, 542 (Ky. 2008) (internal citations and quotes omitted).
relevant aspects of their respective employment circumstances.
. . .
Being similarly situated also requires that the employees have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.
With this in mind, Riley contends that the following past and present TGASK employees were "similarly situated" and, thus, cites them as examples to support her claim: 1) Leah Outland; 2) John McGee; 3) Christine Miller; 4) Wendell Hailey; 5) Timmy Hendricks; 6) Lisa Harriman; 7) Rita Owen; and 8) Rose Johnson. We will address each of these examples.
1. Leah Outland and John McGee
Leah Outland and John McGee are Caucasian TGASK employees who are, or were, team leaders. Riley's deposition describes the extent of what is known about their behavior as follows:
RILEY: [Leah] and John was [sic] arguing. They both was [sic] team leaders and they were arguing and they cussed each other.
. . .
COUNSEL: And what about the thing with Leah Outland and John McGee, do you know what they were arguing about?
RILEY: No. Leah was kind of bossy, that—like she's bossing him and, you know, they just stayed into it all the time. They didn't get along. COUNSEL: They were both team leaders, right? RILEY: Yes. COUNSEL: And do you know what happened to either of them, did either of them get sent home, suspended or do you know? RILEY: No. COUNSEL: Okay. And do you know if that was before or after the thing with you? RILEY: I'm not for sure about that one.
John and Leah do not serve as examples of disparate treatment in support of Riley's claim for two reasons. First, speculation is not evidence, and it is unclear whether Riley was testifying that Leah and John were disciplined for arguing, if so to what extent, or that Riley simply did not know. Second, nothing in this example supports that any of John's and Leah's conduct rose to the level of threatening behavior, or that it stopped production, caused team members to leave their stations, or necessitated immediate managerial intervention as Riley's conduct did.
2. Christine Miller
Christine Miller is or was a team leader at TGASK. Riley asserts that Miller, a Caucasian, was involved in an incident with an African American team member, Tremain Jordan. Riley's deposition sets forth the extent of what is known about Christine Miller's behavior as follows:
RILEY: Now, [Tremain] got sent home and [Christine] didn't get sent anywhere. COUNSEL: Okay. So were they arguing? RILEY: Yes. COUNSEL: Do you know what they were arguing about? RILEY: Something about he wanted a day off and she wouldn't give it to him or something, something about a PPO day. Because she's a supervisor and he's a team member. And she was white and he was black. COUNSEL: Okay. RILEY: They sent him home and they didn't send her home. COUNSEL: Do you know when this occurred? RILEY: No, not—not for—not exactly the date.
Stated differently, a subordinate was sent home for arguing with his supervisor about her decision to refuse his request for time off. Absent any additional detail, however, nothing about this example is analogous to the incident involving Riley.
3. Wendell Hailey and Timmy Hendricks
Next, Riley asserts that team leader Wendell Hailey, a Caucasian, had an argument with another Caucasian employee, Timmy Hendricks, ten minutes after (and regarding) the altercation between Riley, Denita, and Latoya. She further asserts that to her knowledge neither was disciplined and that, therefore, TGASK's treatment of them evinces discrimination. The only evidence and description of this incident comes from Riley's deposition:
COUNSEL: And what were they arguing about? RILEY: I know—I could hear Timmy cussing [Wendell] saying something to him but I'm not for sure. What I heard him say—like, tell him he's supposed to break the D fight up and he should do this, telling him what—about his—what—that he wasn't doing his job. He was cussing at him about him not doing his job.
Aside from Riley's deposition testimony, nothing in the record documents that this incident occurred. And, aside from including a vague reference to "cussing," this example does not demonstrate that the conduct of Hailey or Hendricks rose to the level of threatening behavior, or that it stopped production, caused team members to leave their stations, or necessitated immediate managerial intervention. Moreover, this example serves to underscore the severity of Riley's altercation: spectators to Riley's altercation regarded it as a "fight," and ten minutes afterward Riley's altercation continued to have a disruptive and distracting effect upon surrounding work areas.
4. Lisa Harriman
Riley asserts that two citations received by Lisa Harriman, another Caucasian team leader, also indicate disparate treatment. The first citation, which is dated May 4, 2007, merely resulted in an "oral reminder." It states:
Details of Issue/Problem: (dates, comments, etc.)
T/M's [team members] complain of attitude from T/L [team leader] and not being supportive to help productivity.
Harriman's second citation is dated December 18, 2008, and also resulted in an "oral reminder." It states:
Details of Issue/Problem: (dates, comments, etc.)
T/L got arguementive [sic] with T/M in front of other T/M's in and around work area.
Aside from these two brief and vague statements, however, nothing further is known about Harriman's conduct and we are left to speculate about how it compared to Riley's. Because speculation is insufficient to overcome summary judgment, this example also lends no support to Riley's claim. See Cave, 202 S.W.3d at 588.
5. Rita Owen
On August 21, 2009, team leader Rita Owen was issued an oral reminder for using her cellular telephone to show personal pictures to team members while on the production floor. Aside from this, nothing else is known about the effect and severity of her conduct. Therefore, we will not presume that Rita Owen's conduct is comparable to Riley's.
6. Rose Johnson
Finally, Riley asserts that TGASK's treatment of Rose Johnson, another Caucasian team leader, evinces disparate treatment. By way of background, Johnson received two citations, first on December 15, 2008, and later on April 15, 2009. The December citation resulted in an oral reminder and describes Johnson's conduct as follows:
Details of Issue/Problem: (dates, comments, etc.)Similarly, the April citation provides:
Team Leader has been reported speaking to Team Members in a disrespectful way. "Verbally abusive."
Details of Issue/Problem: (dates, comments, etc.)By contrast, however, the April citation constituted a "final warning." Furthermore, it states:
Team Leader has been reported speaking to and about Team Members in a disrespectful way. "Verbally abusive."
Future Expectation(s): (to be supplied by the Manager/Supervisor and/or the Employee)
TL will be stepped down to TM status and is expected to be respectful at all times.
The faces of these two citations, which are the only evidence Riley has put forth to indicate the nature and effect of Johnson's conduct, support only that Johnson—a Caucasian team leader—was demoted to team member because she spoke to or about team members in a "disrespectful way." Rose Johnson was not cited for engaging in threatening behavior and her citations do not suggest that her conduct resulted in any interruption in production or necessitated any managerial intervention.
Riley does not allege that her supervisor was involved in any of the other incidents she cites as examples. Be that as it may, Johnson's April 15, 2009 citation, which recites Johnson's demotion from team leader to team member, was signed on behalf of TGASK by Scott Bacon. As previously noted, Bacon is the same TGASK supervisor who signed Riley's March 23, 2007 citation reciting Riley's demotion from team leader to team member. Aside from that, our review of the disciplinary reports shows that Bacon was not the supervisor for any of the other employees to whom Riley contends she was similarly situated.
To summarize, Riley has failed to put forth evidence that any other TGASK employee engaged in behavior that was similar to her own behavior in scope and effect, and none of the citations she relies upon include any reference to pages six and seven of the TGASK employee handbook (the "workplace violence section"). In addition, Riley has put forth evidence demonstrating that a Caucasian team leader who engaged in what appears to have been lesser conduct was disciplined with equal severity. In light of the above, Riley has failed to present any evidence sufficient to support the fourth element of her discrimination claim (i.e., that any employee of a different ethnicity, but similarly situated to herself in all other relevant respects, was treated more favorably). And, while Riley further asserts that the mere fact that the incident involving her behavior was investigated by TGASK—and the extent of the investigation itself—evinces disparate treatment, it simply does not for exactly the same reason: Riley has put forth no evidence that any other TGASK employee engaged in misconduct that approached the severity of her own, and, thus, Riley has failed to demonstrate that TGASK has ever investigated conduct akin to Riley's in any other way.
It is unnecessary to address Riley's appeal any further. To paraphrase Solly, 253 S.W.3d at 542, Riley has failed to put forth any evidence demonstrating that what happened to her, and what created a difference in situation between herself and her co-workers, was due to her ethnicity rather than her own individual behavior. Riley has failed to support the fourth element of her discrimination claim against TGASK, and has therefore failed to support a prima facie case of discrimination against TGASK. Consequently, the circuit court appropriately granted summary judgment in favor of TGASK. We find no error.
CONCLUSION
For these reasons, the judgment of the Christian Circuit Court is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Aubrey Williams
Louisville, Kentucky
BRIEF FOR APPELLEE: Craig P. Siegenthaler
Claire M. Vujanovic
Louisville, Kentucky