Tharp v. Apel Int'l

MEMORANDUM OPINION

CHARLES R. SIMPSON LIT, SENIOR JUDGE

This matter is before the Court on the motion of Defendant Apel International, LLC (“Apel”) for summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56(a). Def. Mot. Summ. J., DN 22. Plaintiff Christina Tharp (“Tharp”) filed a response, and Apel replied. Pl. Resp., DN 23; Def. Reply, DN 24. This matter is now ripe for adjudication. For the reasons stated below, the motion will be granted.

I. Procedural Posture of Case

On February 24, 2020 Tharp filed a complaint against Apel in Jefferson Circuit Court alleging that Apel violated the Kentucky Civil Rights Act (“KCRA”) by declining to hire Tharp after she submitted a sexual harassment complaint against an Apel employee. Pl.'s Compl., DN 1-1, PageID# 7. Apel timely removed the action to federal court under our diversity jurisdiction in accordance with 28 U.S.C. § 1441. Notice of Removal, DN 1-1, PageID# 1-3. Apel now moves for summary judgment pursuant to Fed.R.Civ.P. 56(a). DN 22.

II. Factual Background

The following facts appear to be uncontested:

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From early September through mid-December of 2019, Tharp was employed by a staffing company, Adecco USA, Inc. (“Adecco”), and assigned as a temporary worker for Apel. DN 22-1, PageID# 59; DN 23, PageID# 205, 207. Apel had a “general practice” of hiring temporary workers for permanent employment positions after about ninety days if they performed well. DN 23-1, PageID# 233.^[1] However, Tharp understood that, during her assignment with Apel, she was not an Apel employee, she would receive her pay from Adecco, and she was obligated to abide by the policies and procedures of the Adecco Employee Handbook. DN 22-3, PageID# 92. Tharp was also aware that she was not “entitled to any benefits or compensation from any [Apel] benefit plan, policy, or program” and that her opportunity for a permanent position with Apel was contingent upon her performance during her temporary assignment. Id.; DN 22-4, PageID# 98 (acknowledging during deposition that she might earn a position with Apel if she “did a good job” and that there were no “guarantees” of any such position).

On December 2, 2019, Tharp submitted a written complaint to Apel's Human Resources Manager, Stephanie Noe (“Noe”), claiming that an Apel employee, Nacho Molina (“Molina”), had been sexually harassing Tharp at work since late September of 2019. DN 22-16, PageID# 166. Later that same day, Apel Supervisor Mike Garnett reported to Noe that he had informed Molina of the complaint against him and that Molina had resigned. DN 22-18, PageID# 172. Tharp reported that she never saw Molina again after she submitted the complaint. DN 22-4, PageID# 128.

Tharp called in sick to work on December 7 and December 9. DN 22-20, PageID# 176; DN 22-21, PageID# 178. On December 16 Tharp again missed work, purportedly due to a back

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injury. DN 22-22, PageID# 180. Noe emailed Kimberly Williams at Adecco on December 17, 2019 asking that Adecco release Tharp from her assignment with Apel, stating that Tharp had “7.5 points in a 3 month period and we only allow 8 in a 12 month period”^[2] and also that Tharp “called in the past two Mondays.” DN 22-24, PageID# 188. According to Apel, by the time Tharp was released from her assignment she had accumulated thirteen total absences. DN 22-1, PageID# 59.^[3]

III. Basis of Tharp's Claim Under KCRA

Tharp alleges that Apel's decision not to hire her at the end of her temporary assignment was violative of Kentucky Revised Statute (“KRS”) § 344.280. DN 1-1, PageID# 9; DN 23, PageID# 207. Tharp does not cite the subsection of KRS § 344.280 under which she makes her claim, nor does she explicitly point to Apel's purportedly unlawful conduct in her complaint. However, based on the briefing from both parties, the Court will address Tharp's claim as an allegation that Apel's decision not to hire her was motivated by an unlawful retaliatory intent in violation of KRS § 344.280(1). In her response to the instant motion, Tharp argues that but for her sexual harassment complaint, Apel would not have declined to offer her a permanent employment position. DN 23, PageID# 207. Tharp's theory relies on the contention that her absences did not warrant Apel's decision not to hire her. Id., PageID# 214-16.

Tharp arrives at this conclusion by first pointing to comments that Noe allegedly made to Tharp complimenting her job performance and otherwise indicating that Tharp would be hired by Apel. DN 23, PageID# 210. Next, Tharp asserts that temporary employees working at Apel on assignment by a third-party staffing company are bound by the same policies and disciplinary

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measures as permanent employees of Apel and, that under these standards, Apel did not have a basis for its decision not to hire her. DN 23, PageID# 214.

To support the assertion that temporary workers and permanent Apel employees are subject to the same treatment by Apel, Tharp notes the fact that Apel uses the same form for keeping track of employee absences, regardless of whether the employee is temporary or permanent. Id., PageID# 212. She also emphasizes a statement made during the deposition of Apel's corporate designee, Diane Breeding, which allegedly indicates that temporary and “regular” Apel employees are treated equally “when it comes to discipline and policies.” DN 23, PageID# 214 (citing DN 23-1, PageID# 232). Tharp additionally argues that an inspection of the performance records of several Apel employees reveals that Apel was selective in its enforcement of its attendance policy and “did not consider attendance as a major factor in its decision to fire or retain employees.” Id., PageID# 214.

Finally, Tharp claims that 1. termination of employment is not compulsory under Apel's attendance policy; 2. she should have received written warnings before Apel decided not to hire her; and 3. Noe could have taken other disciplinary measures against her rather than denying her employment. Id. As such, Tharp contends that Noe only decided not to offer Tharp a permanent position with Apel because Tharp complained about Molina's harassment. See id., PageID# 214-16 (implying that Tharp's absences were treated differently from other employees because she filed a sexual harassment complaint against an Apel employee).

IV. Retaliation Claims Under KCRA

Under KCRA, it is unlawful “[t]o retaliate . . . in any manner against a person because he has opposed a practice declared unlawful by this chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or

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hearing under this chapter.” Ky. Rev. Stat. Ann. § 344.280(1) (West). Retaliation claims filed under this Kentucky law are evaluated under the same standard used to evaluate federal Title VII claims. Land v. S. States Coop., Inc., 740 Fed.Appx. 845, 848 (6th Cir. 2018) (citing Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 504 (6th Cir. 2014)); Brooks v. Lexington-Fayette Urban Cnty. Hous. Auth., 132 S.W.3d 790, 801-02 (Ky. 2004). A. Prima Facie Case

In the absence of direct evidence of retaliation, a plaintiff must establish a prima facie case. Hamilton v. GE, 556 F.3d 428, 435 (6th Cir. 2009) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-05 (1973)). An employee can substantiate a prima facie case of retaliation against his employer by showing that “(1) [the employee] engaged in protected activity, (2) the employer knew of the exercise of the protected right, (3) an adverse employment action was subsequently taken against the employee, and (4) there was a causal connection between the protected activity and the adverse employment action.” Id. (quoting Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008) (internal quotation marks omitted)). If the employee is successful, the burden then shifts to the employer to evidence a non-retaliatory reason for the action taken against the employee. Id. Finally, if the employer meets this burden, the employee must show that the reason offered by the employer is pretextual. Id.

In the present case, both parties agree that Tharp's claim relies solely on circumstantial evidence and, hence, Tharp must establish a prima facie case against Apel. DN 22-1, PageID# 70; DN 23, PageID# 222. Additionally, for the purposes of this motion, the parties accept that Tharp engaged in a protected activity by filing a complaint against Molina, that Apel knew of this complaint, and that Apel's decision not to hire Tharp as a permanent employee was an adverse employment action. DN 22-1, PageID# 71; DN 23, PageID# 222. Thus, the first three elements of

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the prima facie case are not presently in dispute. Id. Apel's challenge in the instant motion relates to the fourth element of the prima facie case-that is, whether there is causal connection between Tharp's filing of the complaint against Molina and Apel's decision not to hire Tharp. B. Causal Nexus Between Protected Activity and Adverse Employment Action

To establish a causal nexus between an employee's protected activity and an employer's adverse employment action, the employee “must produce sufficient evidence ‘from which an inference could be drawn that the adverse action would not have been taken had the plaintiff not' engaged in protected activity.” Lewis-Smith v. W. Ky. Univ., 85 F.Supp.3d 885, 910 (W.D. Ky. 2015) (quoting Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)). In cases where there is no direct evidence of a causal connection, an inference of causation can generally be drawn if the employee shows that “(1) the decision maker responsible for making the adverse decision was aware of the...