Holly v. UPS Supply Chain Solutions, Inc., Civil Action No. 3:13-cv-980-DJH-CHL

163 F.Supp.3d 465

Bruce Holly, Plaintiff,

v.UPS Supply Chain Solutions, Inc. and Jeremy Fletcher, Defendants.

Civil Action No. 3:13-cv-980-DJH-CHL

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

Signed February 18, 2016

Filed February 19, 2016

Brent T. Ackerson, Anderson Law Offices, Louisville, KY, for Plaintiff.

Kathleen Biggs Wright, LaQuita S. Wornor, Tony C. Coleman, C. Laurence Woods, III, Carrie B. Pond, Frost Brown Todd LLC, Louisville, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

David J. Hale, Judge, United States District Court

Plaintiff Bruce Holly alleges that Defendants UPS Supply Chain Solutions, Inc. and Jeremy Fletcher unlawfully terminated his employment. The defendants have moved for summary judgment on all of Holly's claims. (Docket No. 25) Because the undisputed facts show that Holly is not entitled to protection under the statutes upon which his claims are based, the Court will grant summary judgment in favor of the defendants.

I. BACKGROUND

The parties agree on the facts of the incident underlying this lawsuit, which took place on April 1, 2013. That day, Holly experienced car trouble on his way to work at UPS Supply Chain Solutions (“UPS SCS”). (D.N. 25-2, PageID # 349) After he arrived, he asked and was granted permission to leave work to take his vehicle to a repair shop. (Id. ) As he was leaving, Holly remembered that there was a handgun in the center console of his car.¹ (Id. , PageID # 350-51) He contacted a subordinate employee, Kenneth Moore (who was working at the time), and asked if he could store the gun in Moore's vehicle while his own was being repaired. (Id. , PageID # 351; see id. , PageID # 354) Moore agreed, and in their employer's parking lot, Holly removed the gun from his car and placed it in Moore's. (Id. , PageID # 352-53) He moved the gun back to his own vehicle later that day, when the two vehicles were again in the UPS SCS parking lot. (Id. , PageID # 358)

Seven weeks later, following an internal investigation, Defendant Fletcher and another UPS SCS employee, Siria Reza, notified Holly that his employment was being terminated. They cited two reasons for the termination: Holly's poor performance review in 2011 and the fact that Holly had asked a subordinate (Moore) for a personal favor on company time.² (Id. , PageID # 367-69; D.N. 26-18, PageID # 807-08) Fletcher later completed an employer's statement for the Kentucky Department of Unemployment Insurance in which he stated that the reason for Holly's termination was that Holly “asked a subordinate employee for a personal favor while on company time.” (D.N. 26-20, PageID # 814) At a hearing on Holly's claim for unemployment benefits, Fletcher testified that Holly had “put [Moore] in the position of stealing time from the company in order to perform a personal favor for him,” in violation of the company's “theft of time” policy. (D.N. 26-21, PageID # 818)

Holly filed suit in September 2013, alleging that Fletcher and UPS SCS violated Kentucky Revised Statutes sections 527.020 and 237.106 by firing him and that his termination constituted wrongful discharge in violation of the public policy evidenced by those statutes. (D.N. 1-2, PageID # 9-17) He voluntarily dismissed the latter two claims as to Fletcher and sought leave to amend his complaint to reflect the dismissal. (D.N. 7, 8) The Court allowed the amendment and denied Fletcher's motion to dismiss the remaining claim against him, finding that Holly had stated a plausible claim for relief under section 527.020. (D.N. 12) Upon completion of discovery, both defendants sought summary judgment. (D.N. 25)

II. STANDARD

Summary judgment is required when the moving party shows, using evidence in the record, that “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) ; see 56(c)(1). For purposes of summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party. Loyd v. Saint Joseph Mercy Oakland , 766 F.3d 580, 588 (6th Cir.2014) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). However, the Court “need consider only the cited materials.” Fed. R. Civ. P. 56(c)(3) ; see Shreve v. Franklin Cty., Ohio , 743 F.3d 126, 136 (6th Cir.2014). If the nonmoving party “fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c),” the fact may be deemed undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2)–(3). To withstand a motion for summary judgment, the nonmoving party must establish a genuine issue of material fact with respect to each element of each of his claims. Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (noting that “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial”).

III. ANALYSIS

The Court begins its analysis with a principle well established under Kentucky law: “Ordinarily an employer may discharge his at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible.” Grzyb v. Evans , 700 S.W.2d 399, 400 (Ky.1985) (quoting Firestone Textile Co. Div. v. Meadows , 666 S.W.2d 730, 731 (Ky.1983) ). Exceptions to this rule include the statutes relied upon by Holly in his amended complaint, which limit an employer's discretion in certain situations involving an employee's possession of a firearm. See Ky. Rev. Stat. §§ 237.106, 527.020. In addition, Kentucky common law recognizes a cause of action for wrongful discharge when an employee's termination “is contrary to a fundamental and well-defined public policy” that is “evidenced by a constitutional or statutory provision.” Grzyb , 700 S.W.2d at 401.

Despite basing his claims on statutes that protect an employee's right to keep a firearm in his vehicle, Holly maintains that it is irrelevant whether his actions were statutorily protected because the defendants have stated that he was not fired for having a gun. Holly asserts:

The Defendant relies upon the argument that the Plaintiff's transfer of his handgun from his vehicle to another vehicle on its property is not a protected activity. However, according to the Defendant, the Plaintiff was not terminated for having the gun on property [sic] [ ]or transferring it from his vehicle. Therefore such an argument does not preclude Holly's claims in this case.

(D.N. 26, PageID # 621) He reiterates this position throughout his summary judgment response. For example, a heading in the response declares: “The Defendants' arguments on unprotected activity related to the Plaintiff's handgun have no bearing upon this case.” (Id. , PageID # 634; see also id. , PageID # 643-44 (“The fact that the firearm was moved from one vehicle to another does not have bearing upon the actionable nature of the KRS 527.020 and/or KRS 237.106 violations.”)) A puzzling paragraph from page 16 of his response also bears quoting:

The fatal flaw in UPS's argument is that they are trying to hand [sic] their case on the limited activity of Holly moving his handgun from his car to Moore's car, for safe and lawful storage. However, UPS did not terminate Holly for this activity. ... Prior to now, UPS had repeatedly asserted that the handgun had nothing to do with its decision. As such, a reasonable jury could easily conclude the same, particularly when viewing the evidence in a light most favorable to the Plaintiff.

(Id. , PageID # 634 (emphasis added))

It is unclear to the Court how Holly plans to establish violations of sections 527.020 and 237.106 without showing either that his conduct was protected by statute or that the defendants fired him for protected conduct—both essential elements of his claims. He appears to argue that the defendants unlawfully fired him for engaging in protected activity, but that it doesn't matter whether his actions were actually protected because the defendants do not admit to firing him for that reason. The Court doubts that such circular logic would persuade a jury. Regardless, it will not carry Holly's claims past summary judgment. As explained below, each of Holly's claims requires a showing that his actions were protected by statute, and the undisputed facts show that he is not entitled to statutory protection.

A. Kentucky Revised Statutes § 527.020

Section 527.020 is part of the penal code but also creates a civil cause of action. Mitchell v. Univ. of Ky. , 366 S.W.3d 895, 902 (Ky.2012). The statute provides:

No person or organization, public or private, shall prohibit a person licensed to carry a concealed deadly weapon from possessing a firearm, ammunition, or both, or other deadly weapon in his or her vehicle in compliance with the provisions of KRS 237.110 and 237.115. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction.

Ky. Rev. Stat. § 527.020(4). Thus, the act protected by subsection (4) is possessing a weapon or ammunition in one's vehicle “in compliance with the provisions of KRS 237.110 and 237.115.”³ Under section 237.110, “[p]ossession of weapons, or ammunition, or both in a vehicle on the premises [of a business enterprise] shall not be a criminal offense so long as the weapons , or ammunition, or both are not removed from the vehicle or brandished while the vehicle is on the premises .” Ky. Rev. Stat. § 237.110(17) (emphasis added). The statute further provides that the “[c]arrying of a concealed weapon, or ammunition, or both in a location specified in this subsection by a license holder shall not be a criminal act but may subject” an employee to “disciplinary measures by the employer.” Id.

While it is undisputed that Holly possessed a gun in his...