Back v. Nestlé USA, Inc.

Citation694 F.3d 571
Decision Date17 October 2012
Docket NumberNo. 10–6028.,10–6028.
PartiesRobert G. BACK, Plaintiff–Appellant, v. NESTLÉ USA, INC., Defendant–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

694 F.3d 571

89 Fed.
R. Evid. Serv. 517

Robert G. BACK, Plaintiff–Appellant,
NESTLÉ USA, INC., Defendant–Appellee.

No. 10–6028.

United States Court of Appeals,
Sixth Circuit.

Sept. 13, 2012.*
Rehearing Denied Oct. 17, 2012.

[694 F.3d 573]

ON BRIEF:Sara Beth Gregory, Thomas E. Carroll, Carroll & Turner, P.S.C., Monticello, Kentucky, for Appellant.
Thomas M. Wilde, Elizabeth N. Hall, Vedder Price P.C., Chicago, Illinois, for Appellee.

Before: KETHLEDGE and STRANCH, Circuit Judges; GWIN, District Judge.

STRANCH, J., delivered the opinion of the court in which KETHLEDGE, J., joined, and GWIN, D.J., joined in part.
GWIN, D.J. (p. 581), delivered a separate concurring opinion.


JANE B. STRANCH, Circuit Judge.

Plaintiff Robert Back sued his former employer, Nestlé USA, Inc., alleging that the company discriminated against him based on his age by terminating him, thereby violating the Kentucky Civil Rights Act (KCRA), Ky.Rev.Stat. Ann. §§ 344.010 to 344.990. The district court granted summary judgment to Nestlé and Back appealed. For the reasons set forth below, we AFFIRM the judgment of the district court.


Back was born in 1954 and began working in November 1998 as a Maintenance Team Leader for Chef America at its food-processing plant in Mount Sterling, Kentucky. The plant made “Hot Pockets.” In

[694 F.3d 574]

June 1999, Back was promoted to Maintenance Superintendent and was responsible for supervising Maintenance Team Leaders.

Nestlé bought Chef America and took over the plant in late 2002 or early 2003. Back continued to work for Nestlé but was moved back to Maintenance Team Leader with no decrease in pay because Nestlé did not recognize the Maintenance Superintendent position. In February 2005, Robert Vernon became the Maintenance Manager of the plant and Back's immediate supervisor. Before then, Back had several supervisors, including Frank Saporito.

The food-processing plant runs five processing lines (lines 4–8) and had three shifts, two production and one sanitation. For each shift, a maintenance team is assigned to the processing, packaging, or refrigeration area. During his last 18 months of employment, Back was responsible for the processing area up to the freezer. He was primarily responsible for line 7, but he worked on all the lines and spent 70% of his time on line 8.

Back directly supervised nine mechanics and was accountable for their performance and for disciplining them. His mechanics ensured that the lines started and stayed running during the shift and that equipment was properly maintained, clean, and functioning. This helped to prevent both food contamination and the lines from going down (referred to in the plant as “downtime”). The mechanics were expected to update Back on equipment functioning and inform him if the line was down for more than 10 minutes. Back was responsible for managing his teams' preventative maintenance, a schedule by which mechanics inspected various pieces of equipment to maintain the equipment and fix problems before they caused downtime.

Sometime before April 6, 2005, James Hagerman, another Maintenance Team Leader, told Back that “Tim Shelburne told me [Hagerman] that he had been told by higher management that they were planning to get rid of the three oldest employees and highest paid team leaders.” The three oldest team leaders were Back, Hagerman, and Frank Willis. Back testified that Shelburne was the acting Human Resources Director when he made this alleged statement to Hagerman.

During the nine combined years that Back worked at the food-processing plant for Chef America and Nestlé, he received both positive and negative reviews. His reviews became increasingly negative in 2006, but even when they were positive overall, he received comments that he needed to delegate more tasks to his subordinates, improve in holding his subordinates accountable, and generally supervise and lead those working under him better so that their skills would grow rather than stagnate as occurred when he did their work for them.

Consistent with his increasingly negative reviews in 2006, Back was disciplined three times in 2006. In August 2006, Vernon disciplined Back for his team's failure to quickly and properly “address two pieces of equipment that showed warning signs of failure during the first shift and ultimately malfunctioned, causing food contamination and downtime on a line.” Vernon thought that the two incidents “show a need for Bob to raise the awareness of his team members to the importance of food safety issues.... [H]is team should know that they are expected to take immediate appropriate action on issues that can have a direct effect on food safety.”

In September 2006, Plant Engineer Saporito disciplined Back for not properly managing his team's preventative-maintenance duties. Back admitted that one of his mechanics failed to properly complete

[694 F.3d 575]

his preventative maintenance on an exhaust fan on the roof. Then, in November, Vernon disciplined Back because he did not know that one of the lines he was responsible for was less than 60% efficient during the day. Back was expected to know when a line was functioning poorly and why. Both the September and November write-ups warned Back that failure to immediately improve could lead to further discipline. The November write-up specifically warned Back that he could be terminated for further problems.

In April 2007, Vernon suspended Back for five days for downtime issues, noting in the suspension memo that “Bob has been counseled, coached, and even documented for a need to hold his associates to [a] higher level of performance and accountability.” He continued:

Bob needs to be aware that this suspension was in no way caused by shortcomings in his dedication, effort, or personal work ethic. The issues that led to this action were very specific to leadership potential, and higher standards of planning, performance, and accountability.... Bob needs to separate himself from the team; needs to be the leader not a member.

In June 2007, an explosion occurred at the plant. Vernon assigned Back to prepare line 7 to run again and complete any preventative maintenance that the line needed. Line 7 failed to start up smoothly and Back admitted that there were start up issues. Vernon then met with Human Resource Manager Anthony Mellone and Human Resources Generalist Adreanne Green to discuss Back's responsibility for the flawed start up. Vernon terminated Back in July 2007 due to Back's history of failing to properly supervise his subordinates and his team's history of failing to meet expectations.

In May 2008, Back sued Nestlé in state court, alleging that Nestlé terminated him because of his age in violation of the KCRA. Nestlé removed the case to federal court based on diversity jurisdiction. Following discovery, Nestlé filed a motion for summary judgment, which the district court granted in August 2010. The district court determined that Shelburne's alleged statement was inadmissible hearsay and that Back failed to establish that he was terminated because of his age. Back timely appealed.

A. Standard of review

This court reviews a district court's grant of summary judgment de novo. Carter v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir.2003). Summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Courts consider the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The ultimate question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52, 106 S.Ct. 2505.

B. Age discrimination

In relevant part, the KCRA prohibits an employer from failing or refusing to hire, discharging, or discriminating “against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual's ... age.” Ky.Rev.Stat. Ann. § 344.040(1). “Claims brought under the KCRA are analyzed in the same manner as ADEA

[694 F.3d 576]

claims.” Allen v. Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir.2008) (internal quotation marks omitted); accord Williams v. Wal–Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky.2005).

A plaintiff may establish that the KCRA was violated through either direct or circumstantial evidence. Williams, 184 S.W.3d at 495;see Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 811 (6th Cir.2011) (holding that an ADEA violation can be proved in the same way). “Direct evidence of discrimination is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.” Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (en banc) (citation and internal quotation marks omitted). In a direct-evidence case, the plaintiff must prove “by a preponderance of the evidence ... that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 & n. 4, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

A circumstantial-evidence case involves “proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.” Allen, 545 F.3d at 394 (internal quotation marks omitted). The three-step, burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and modified by Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), is used to analyze age-discrimination claims based upon circumstantial evidence. Provenzano, 663 F.3d at 811–12.

“On a motion for summary...

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