Opinion
Civil Action No. 3:95CV-701-S
March 3, 1999.
MEMORANDUM OPINION
This matter is before the Court on the Motion of the Defendant, Commercial Union Insurance Companies ("Commercial Union"), for Summary Judgment. Plaintiff, William J. Pierce, alleges that his employment was wrongfully terminated by Defendant. For the reasons below, the Motion for Summary Judgment will be granted by separate order.
FACTS
Plaintiff, William J. Pierce, was born April 22, 1940. Defendant, Commercial Union, employed Plaintiff from 1969 until 1995. From 1975 until 1995, Plaintiff held the position of marketing representative for the state of Kentucky. He worked out of his home, although Commercial Union's branch office for Kentucky was in Cincinnati, Ohio. On August 22, 1994, Plaintiff filed a workers' compensation claim with Commercial Union for alleged carpal tunnel syndrome, for which he ultimately received approximately $2,000.
In 1993 and 1994, the Cincinnati branch lost eight million dollars and five million dollars respectively, mostly due to Kentucky. In 1994, Matt Warye, the Cincinnati branch manager, implemented changes to return the Kentucky operations to profitability. Warye's changes included a reduction in staff by eliminating or consolidating nine positions between August 1994 and December 1995, including Plaintiff's position of marketing representative.
Six of the nine positions eliminated or consolidated were held by women, and seven of the eight other positions were held by individuals younger than Plaintiff. On September 19, 1994, Plaintiff was informed that his position was being eliminated. He was given a severance package and allowed to remain on unpaid leave until April 20, 1995, so that additional retirement benefits would vest. Warye and Kris Berg, Plaintiff's supervisor, assumed the necessary duties of Plaintiff's position. In September, 1998, Commercial Union decided to restore the position of marketing representative, appointing Robert Gallagher to the position. Gallagher is several years older than Plaintiff.
After his position was eliminated, Plaintiff did not request consideration for any other position with Commercial Union. On September 18, 1995, Plaintiff filed suit in Circuit Court in Jefferson County, Kentucky, claiming that he was wrongfully terminated. Commercial Union removed to this Court on the basis of diversity jurisdiction.
DISCUSSION
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, 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." Fed.R.Civ.P. 56(c). A party's failure to establish an element of proof essential to his case and upon which he will bear the burden of proof at trial constitutes a failure to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Plaintiff's Complaint states several Kentucky state law causes of action arising from his employment and termination by Commercial Union. Count I asserts that Defendant discriminated against Plaintiff because of his age and sex. Counts III and VI claim that Defendant discriminated against Plaintiff because of his filing of a workers' compensation claim. Count II asserts that Plaintiff's termination violates the public policy of Kentucky, and Count IV states that his termination was a wrongful discharge. Count V claims that Plaintiff's termination violated the covenant of good faith and fair dealing.
Age and Sex Discrimination
In Count I, Plaintiff has stated causes of action for age and sex discrimination under KRS Chapter 344. In such actions, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by the defendant. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To meet this initial burden, the plaintiff must either present direct evidence of intentional discrimination, or show the existence of circumstantial evidence which creates an inference of discrimination. Tally v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir. 1993). Plaintiff has presented no direct evidence of intentional discrimination, and therefore must show circumstantial evidence that creates an inference of discrimination. The circumstantial evidence presented by Plaintiff must satisfy four elements: (1) that he is a member of a protected group, (2) that he was subject to an adverse employment decision, (3) that he was qualified for the position, and (4) that he was replaced by a person outside of the protected class. Id. The fourth element can also be satisfied with a showing that plaintiff was treated less favorably than similarly situated non-protected employees. Id.
KRS Chapter 344 mirrors Title VII in that it prohibits certain unlawful employment practices. Wathen v. General Electric Co., 115 F.3d 400, 403 n. 5 (6th Cir. 1997). In fact, the general purpose of the Kentucky Act is to provide a means for implementing within the state the policies embodied in Title VII, as well as other related federal statutes. Id.; KRS Chapter 344.020(1). Thus, it is common practice to look to the federal counterpart in construing KRS Chapter 344. Wathen, 155 F.3d at 403 n. 5; Palmer v. International Ass'n of Machinists, 882 S.W.2d 117, 119 (Ky. 1994).
Plaintiff's claim fails because he cannot satisfy the fourth element. Defendant did not replace Plaintiff, but rather Plaintiff's position was eliminated and other employees assumed the necessary duties of Plaintiff's position, in addition to the duties of their own positions. "Spreading the former duties of a terminated employee among the remaining employees does not constitute replacement." Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992). Not until three years later was Plaintiff's position reinstated, and at that time, the position was filled by another male who was several years older than Plaintiff. Nor has Plaintiff demonstrated that similarly situated non-protected employees were treated more favorably. The majority of employees whose positions were eliminated were both female and younger than Plaintiff. Plaintiff relies on the fact that several of these employees who received transfers to other positions as evidence of discrimination. However, Plaintiff admits that he never requested a transfer or consideration for any other position. All employees who received other positions, including one employee who was sixty-three years old and another male employee, had made such a request. Therefore, Plaintiff's claims based upon age and sex discrimination fail because he cannot meet the fourth element of the burden-shifting analysis.
Even if Plaintiff could satisfy the fourth element and shift the burden to Defendant, Defendant has articulated a legitimate nondiscriminatory reason for the adverse employment decision. Tally v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir. 1993). Defendant states that Plaintiff's position was eliminated in order to cut costs. In addition, Plaintiff admitted in his deposition that Commercial Union had decided to discontinue growth in Kentucky to cut costs, and that growth of new business was a main function of Plaintiff's position. Plaintiff has presented no evidence that this nondiscriminatory reason for Plaintiff's termination was pretextual.
Discrimination for Filing of Workers' Compensation Claim
Plaintiff's only evidence of discrimination by Defendant for Plaintiff's filing of a workers' compensation claim is the fact that he was terminated one month after filing the claim. Even if this Court were to accept that as sufficient evidence to constitute a prima facie case of discrimination, Defendant has articulated the same nondiscriminatory reason for the termination as it did in response to Plaintiff's claim of age and sex discrimination: Defendant's need to cut costs. Plaintiff has presented no evidence to refute this reason as pretextual, and therefore this claim fails as well.
Remaining Claims
Plaintiff claims in Count V that Commercial Union breached an implied covenant of good faith and fair dealing in discharging him. This allegation fails to state a claim upon which relief can be granted, as Kentucky has no implied covenant of good faith and fair dealing with respect to employment rights. Wyant v. SCM Corp., 692 S.W.2d 814 (Ky.App. 1985); Webster v. Allstate Insurance Co., 689 F. Supp. 689, 692 (W.D. Ky. 1988). Plaintiff's claim for wrongful discharge fails as well. "Terminable at will employment in Kentucky may be ended at any time, with or without cause." Wyant, 692 S.W.2d at 816.
Finally, Plaintiff asserts that his termination violated public policy. In Plaintiff's response to Defendant's Motion for Summary Judgment, he admits that this is nothing more than a restatement of his claims for discrimination on the basis of age, sex, and his workers' compensation claim. While Plaintiff is correct in his assertion that he is permitted to plead alternative causes of action, he is not permitted to restate the same cause of action multiple times. As this Court has already determined that these claims fail, Plaintiff's claim that his termination violated public policy likewise fails.
CONCLUSION
Defendant's Motion for Summary Judgment will be GRANTED as Plaintiff has not shown the existence of any disputed material fact. All claims against Defendant will be DISMISSED with prejudice.
ORDER
For the reasons set forth in the memorandum opinion entered this date and the court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the Motion of the Defendant for Summary Judgment is GRANTED. This action is DISMISSED with prejudice with regard to all claims against Defendant.