Alexander v. Univ. of Kentucky

• Decision Date: 28 March 2012
• Docket Number: No. 5:10-CV-48-REW,5:10-CV-48-REW
• Parties: VINCE M. ALEXANDER, Plaintiff, v. UNIVERSITY OF KENTUCKY, UNIVERSITY OF KENTUCKY CHANDLER MEDICAL CENTER, EDWARD R. McCLURE, Individually, and BOBBIE TINCHER, Individually, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

VINCE M. ALEXANDER, Plaintiff,

v. UNIVERSITY OF KENTUCKY, UNIVERSITY OF KENTUCKY CHANDLER MEDICAL CENTER,EDWARD R. McCLURE, Individually, and BOBBIE TINCHER, Individually, Defendants.

No. 5:10-CV-48-REW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON

Dated: March 28, 2012

MEMORANDUM OPINION AND ORDER

Defendants University of Kentucky ("University") and University of Kentucky Chandler Medical Center ("UKMC") (collectively, "UK"), Edward B. McClure, and Bobbie Tincher (collectively, "Defendants"), by counsel, moved for summary judgment as to all counts. DE #34 ("Motion"). Plaintiff responded in opposition (DE #35), and Defendants subsequently replied. DE #39. The Court has reviewed the filings and full record, under the required standards, and determines that there are a number of genuine factual issues. The disputes are material to some claims but not to others. Accordingly, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion for Summary Judgment, as set forth below.¹

I. Standard of Review

Pursuant to Federal Rule of Civil Procedure 56, summary judgment shall be granted "if the movant shows 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).² A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).

The burden of establishing the absence of a genuine issue of material fact rests initially with the moving party. Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986) (requiring the moving party to set forth "the basis for its motion, and identify[] those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact"); Lindsay, 578 F.3d at 414 ("The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute."). If the moving party meets its burden, the burden then shifts to the non-moving party to produce "specific facts" showing a "genuine issue" for trial. Celotex, 477 U.S. at 324; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). Where, as here, the defendant is the moving party, "the plaintiff, to survive the defendant's motion, need onlypresent evidence from which a jury might return a verdict in his favor. If he does so, there is a genuine issue of fact that requires a trial." Anderson, 106 S. Ct. at 2514. However, "Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 106 S. Ct. at 2552.

A fact is "material" if the underlying substantive law identifies the fact as an essential element. Anderson, 106 S. Ct. at 2510. Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. A "genuine" issue exists if "there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Id.; cf. Matsushita, 106 S. Ct. at 1356 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'") (citation omitted). Such evidence must be capable of admission at trial. Salt Lick Bancorp. v. FDIC, 187 F. App'x 428, 444-45 (6th Cir. 2006).

Where the party moving for summary judgment would also bear a burden at trial, such as the establishment of an affirmative defense, the moving party bears a greater burden to show entitlement to summary judgment. Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002). In Arnett, the Sixth Circuit observed:

[I]f the moving party also bears the burden of persuasion at trial, the moving party's initial summary judgment burden is "higher in that it must show that the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it."

Id. at 561 (quoting 11 James William Moore, et al., Moore's Fed. Prac. § 56.13[1], at 56-138 (3d ed. 2000)).

II. Relevant Background

Plaintiff, Vince Alexander, is an African-American man. DE #1-2 (Complaint), ¶ 9. In May 2006, Alexander met with Ed McClure, Director of the UKMC Physical Plant Division ("MCPPD"), Matt Mueller, Assistant Director of MCPPD, and Kim Lake, Human Resources Representative for MCPPD, to discuss his potential employment in the physical plant at the Medical Center. DE #34-2, August 11, 2010, Vince M. Alexander Deposition Transcript ("Alexander Depo."), at 31-32. At that time, Alexander was over 40 years old. See DE #35 (Response), at 3.³ During the meeting, they discussed Alexander's experience with control valves and process controls and how his experience might translate to the systems - Tridium and BACnet - in use at MCPPD. Alexander Depo. at 32-34. Tridium is a building automation software program that monitors systems such as air handlers, freezers, and exhaust fans at the hospital. See DE #34-20, January 28, 2011, Roberta K. Tincher Deposition Transcript ("Tincher Depo."), at 10-11. BACnet, building automation controls network, is the communication protocol on which Tridium operates. Id. at 11.

Alexander subsequently applied for and was hired for a position as an Information System ("IS") Controls Tech in the MCPPD; he began work on July 23, 2006. Id. at 41; DE #35-33 (Performance Appraisal). UK required no specific certifications for Alexander's position. See DE #34-4, at 2 (Job Requirements). In his application, Alexander indicated he had experience with BACnet and Tridium. DE #35-7 (Application). However, Alexander admits he had no prior experience working with either system. DE #34-35 (Responses to Requests forAdmissions), at 1, 2; DE# 34-38 (Responses to Interrogatories), at 14. According to Alexander, the question required a "yes" or "no" response, and he answered in the affirmative because (as discussed in the interview) he had similar experience, and Lake advised him he should so answer to avoid being "kicked out" of the application if he answered in the negative. Alexander Depo. at 41-42; 46.

Alexander's direct supervisor was Bobbie Tincher, IS Controls Technician Supervisor. When he started at MCPPD, Alexander had one co-worker, Hayward Ferguson, who was also African-American. Id. at 53. Alexander's job duties evolved some after he started, and by the end of 2008 he was focusing on security and door issues. See id. at 55-57. His responsibilities included both field work and system monitoring. See id. at 43-44; 54-55. Although he did not use Tridium and BACnet on a regular basis, he understood he needed to be familiar with them. Id. at 57-58; 83; 89.

Several UK employees, including Tincher, Jeff Reynolds, and Alexander, attended a Tridium certification class from July 28, 2008, to August 1, 2008. DE #34-10 (Email). Alexander knew he needed to complete the course and pass the certification exam as a condition of his employment. Alexander Depo. at 83; 235. Alexander also testified he felt Tridium training was necessary for his day-to-day job responsibilities. Id. at 127. After the exam, Alexander's test station could not be located, and he was told he would need to re-take the test. DE #34-10 (Tincher Email); DE #35-20 (Tridium Letter); Alexander Depo. at 90. Alexander never had the opportunity to re-take the test. Alexander Depo. at 90; 92.

Sometime in 2008, another UK employee, Rob Tanner, allegedly called Alexander a "spook." Tincher Depo. at 130. Alexander did not recognize the word and does not know whether Tanner used the term in a racially derogatory connotation, or whether he used it as spylingo, in reference to the fact that Alexander was installing security cameras in the UKMC. Alexander Depo. at 229-232. Alexander reported the comment to Tincher. Id. at 230. Tincher claims she notified Tanner's supervisor and HR personnel; HR personnel investigated the incident and met with Tanner and his supervisor; and HR ultimately wrote up Tanner. Tincher Depo. at 130-136. Tincher also claims Alexander did not believe Tanner's name-calling was racially motivated. Id. at 135. Indeed, Alexander testified he did not know whether the comment was race-based. Alexander Depo. at 232. After Alexander notified Tincher that Tanner had called Alexander a spook, Tanner responded that Alexander called him a name as well. Id. at 229-30; see also DE #39-2 (Employee Relations Case Documentation Form).

Ferguson, Alexander's co-worker, quit his job near the end of 2008, and shortly thereafter Mike O'Neal and Reynolds were hired to work in MCPPD. Alexander Depo. at 85-86. O'Neal and Reynolds were both under the age of 40 when they started. See DE #34-27, May 9, 2011, Jeff Reynolds Deposition Transcript ("Reynolds Depo.") at 4; DE #34-26, January 21, 2011, Michael O'Neal Deposition Transcript ("O'Neal Depo.") at 39. O'Neal and Reynolds are both Caucasian. DE #35, at 10. ⁴ Alexander believes Tincher had tried to force Ferguson out for discriminatory reasons, but he could point to no corroborative evidence. Alexander Depo. at 229. When O'Neal and Reynolds started at MCPPD, Tincher told Alexander that O'Neal and Reynolds would work primarily on the HVAC controls, which operated on BACnet and Tridium, and Alexander would continue to work primarily on security...