Taylor v. Davies

ANTHONY TAYLOR, Plaintiff, v. JON DAVIES et al., Defendants.

Civil Action No. 3:17-cv-696-DJH-CHL

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

March 29, 2021

* * * * *

MEMORANDUM OPINION AND ORDER

Plaintiff Anthony Taylor alleges that he experienced racial harassment at work and that his employer fired him because he reported unsafe working conditions. He asserts claims of discrimination, retaliation, and wrongful discharge against Defendants Jon Davies; Kevin Harl; Complete Demolition Services (CDS); and Complete Environmental Services, LLC (CES). (Docket No. 56) Defendants move for summary judgment on all claims. (D.N. 66) For the reasons explained below, the Court will grant Defendants' motion in part.

I.

CDS hired Taylor in the spring of 2015 as a laborer. (D.N. 66, PageID # 347; D.N. 70-1, PageID # 399) Taylor worked for both CDS and CES during his employment. (See D.N. 66, PageID # 347-48; D.N. 70-1, PageID # 408) Taylor, who is African-American, claims that while he was working on an assignment in Senora, Kentucky, in the summer of 2015, his supervisor at the time, Kevin Harl, made numerous racist comments. (D.N. 70-1, PageID # 400-402) Taylor reported Harl's behavior to Tony Rodgers, partial owner of CES and one of Taylor's supervisors; and Jonathan Davies, head of CDS and another partial owner of CES. (D.N. 70-1, PageID # 401; D.N. 70-4, PageID # 424) Harl and Taylor were subsequently separated at work. (See D.N. 66,PageID # 347; D.N. 70-1, PageID # 402) According to Taylor, Harl continued to harass him. (D.N. 70-1, PageID # 403-05)

Over the next few months, Taylor received asbestos training and became an asbestos supervisor. (D.N. 66, PageID # 347-48; D.N. 70-1, PageID # 402-03) In March 2016, Taylor was assigned to work as an asbestos supervisor at a job site for CES. (D.N. 66, PageID # 348; D.N. 70-1, PageID # 405) Taylor claims that during this assignment the employees on his team repeatedly took actions that made the workplace unsafe, such as dropping siding pieces to the ground in a manner that caused asbestos fibers to be released into the air. (D.N. 70-1, PageID # 405-07) Taylor's team refused to follow his instructions, and Taylor reported the unsafe conditions to Rodgers and Davies multiple times. (Id.) On the third day on the project—March 9, 2016—when his team once again ignored his instructions, Taylor left the job site and reported the incident to Rodgers. (D.N. 70-1, PageID # 407) Taylor alleges that Rodgers fired him in response (id., PageID # 407-08); Defendants contend that Taylor quit voluntarily. (D.N. 66, PageID # 352-53) After receiving his right-to-sue letter from the Equal Employment Opportunity Commission Taylor filed this lawsuit, asserting claims of discrimination and retaliation in violation of Title VII and the Kentucky Civil Rights Act, and wrongful discharge in violation of Kentucky public policy. (See D.N. 56; D.N. 66, PageID # 349)

II.

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 the movant 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 the portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving partysatisfies this burden, the nonmoving party must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (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." Id. at 248.

The evidence of the nonmoving party is to be believed, id. at 255, and all reasonable inferences that may be drawn from the facts placed before the Court must be drawn in that party's favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Nevertheless, the nonmoving party must do more than merely show that there is some "metaphysical doubt as to the material facts." Id. at 586. Instead, the Federal Rules of Civil Procedure require the nonmovant 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 [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson, 477 U.S. at 252.

A. Individual Defendants

Defendants argue that Taylor's claims against Davies and Harl should be dismissed because "an individual employee/supervisor, who does not otherwise qualify as an 'employer,' may not be held personally liable under Title VII." (D.N. 66, PageID # 350 (citing Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997))) In response, Taylor argues only that "Davies is individually liable for retaliation under Kentucky's anti-retaliation law." (D.N. 70, PageID # 395) The Court therefore finds that Taylor has abandoned his claims against the individual defendants, aside from his retaliation claim against Davies. See Brown v. VHS of Mich.,Inc., 545 F. App'x 368, 372 (6th Cir. 2013) (collecting cases) ("[The Sixth Circuit's] jurisprudence on abandonment of claims is clear: a plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in response to a motion for summary judgment."); see also Degolia v. Kenton Cnty., 381 F. Supp. 3d 740, 759-60 (E.D. Ky. 2019) (quoting Rouse v. Caruso, No. 6-cv-10961-DT, 2011 WL 918327, at *18 (E.D. Mich. Feb. 18, 2011)).

As for Taylor's retaliation claim, Taylor correctly argues that Davies can be held liable as an individual under Kentucky law. See Morris v. Oldham Cnty. Fiscal Ct., 201 F.3d 784, 794 (6th Cir. 2000) ("The Kentucky retaliation statute [§ 344.280] plainly permits the imposition of liability on individuals."). Defendants are therefore not entitled to summary judgment on Taylor's retaliation claim against Davies.

B. Discrimination (Counts I and III)

Taylor asserts that Defendants discriminated against him by (1) paying him less than his white colleagues, (2) creating a hostile work environment due to racial harassment, and (3) discharging him. (See D.N. 56, PageID # 317) "The Kentucky Civil Rights Act, [Ky. Rev. Stat.] § 344.040, mirrors Title VII of the Civil Rights Act of 1964, and discrimination claims brought under the KCRA are analyzed the same way as those brought under Title VII." Beatty v. Frito-Lay, Inc., 429 F. Supp. 3d 342, 347 (E.D. Ky. 2019), appeal dismissed, No. 20-5041, 2020 WL 1856400 (6th Cir. Feb. 25, 2020) (citing Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000)). Defendants seek summary judgment on all of Taylor's discrimination claims.

1. Lower Pay

"In order to establish a prima facie case of pay discrimination under Title VII, the plaintiff must show that the employer paid lower wages to employees of the protected class than those outside the class, for equal work." Gee v. Liebert Corp., 58 F. App'x 149, 153 (6th Cir. 2003)(citing Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974)). Equal work requires "substantial equality of skill, effort, responsibility and working conditions." Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir. 1981) (citing Schultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3rd Cir. 1970)). Defendants argue that Taylor has failed to demonstrate that he received lower pay "than similarly situated white employees" because the 2015 payroll shows that Taylor was paid "a higher wage than some of his white co-workers." (D.N. 66, PageID # 350) Specifically, Defendants compare Taylor, who was paid $12 per hour as a laborer and $13 per hour as a supervisor, to Charles Longnecker, a white employee who made $10 per hour as a laborer and $12 per hour as a supervisor. (D.N. 66, PageID # 351; see D.N. 66-11, PageID # 371; 66-12, PageID # 372) But Defendants offer no information to demonstrate that Taylor and Longnecker performed equal work. Absent evidence that the work performed by both men required substantially the same "skill, effort, responsibility and working conditions," it is irrelevant that Longnecker earned less than Taylor. Odomes, 653 F.2d at 250; see Beck-Wilson v. Principi, 441 F.3d 353, 362 (6th Cir. 2006) (citing Brennan v. Owensboro-Daviess Cnty. Hosp., 523 F.2d 1013, 1017 & n. 7 (6th Cir. 1975)) ("[O]ur focus is on actual job requirements and duties, rather than job classifications or titles."). And the 2015 payroll form submitted by Defendants shows that Taylor did earn a lower hourly rate than some white employees, such as Daniel Phillips and Kevin Harl. (See D.N. 66-11, PageID # 371; 66-12, PageID # 372) The issue of whether Taylor received a lower pay rate than some of his white co-workers thus remains disputed, and Defendants are therefore not entitled to summary judgment on this claim. See Anderson, 477 U.S. at 248.

2. Hostile Work Environment

Establishing a prima facie case of a racially hostile work environment requires a plaintiff to demonstrate "(1) [he] was a member of a protected class; (2) [he] was subjected to unwelcomeracial harassment; (3) the harassment was based on race; (4) the harassment unreasonably interfered with [his] work performance by creating an intimidating, hostile, or offensive work environment; and (5) the employer is liable." Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009) (citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)). Harassment that is "sufficiently severe or pervasive to alter the conditions of [the plaintiff's] employment and create an abusive working environment" qualifies as hostile. Williams v. CSX Transp. Co., 643 F.3d 502, 512 (6th Cir. 2011) (quot...