Charles v. Print Fulfillment Servs., LLC, CIVIL ACTION NO. 3:11-CV-00553-TBR

CourtUnited States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
Writing for the CourtThomas B. Russell, Senior Judge United States District Court
Docket NumberCIVIL ACTION NO. 3:11-CV-00553-TBR
Decision Date30 September 2015




September 30, 2015


Dissatisfied with his termination, Keith Charles filed this lawsuit against his former employer, Print Fulfillment Services, LLC, alleging wrongful discharge and age discrimination. (R. 9 ¶¶ 12-23 (Amended Complaint).) PFS has moved for summary judgment on both counts. (R. 74 at 1 (Summary Judgment Motion).) With respect to his wrongful discharge claim, Charles neither refused to follow any employment-related directive, nor did he ever exercise any well-established statutory right. In the absence of those predicates, PFS says, his wrongful discharge claim fails as a matter of law. And his age discrimination claim fairs no better. According to PFS, Charles' overall job performance left something to be desired and gave it a legitimate reason to dismiss Charles from its employ. Affording Charles the benefit of the doubt—to which he is entitled—the Court sees no genuine dispute of material fact and, therefore, GRANTS the Defendant's Motion for Summary Judgment (ECF No. 74).1


Print Fulfillment Services, LLC is a trade printing company located in Louisville, Kentucky. (R. 54-1 at 4-5 (Barnum Deposition).) It is a wholly-owned subsidiary of Farheap

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Solutions, Inc., a Nevada corporation with its principal place of business in California. (Id.) On September 22, 2008, Keith Charles submitted an employment application to PFS.2 (R. 70-1 at 22-24 & Ex. 1 (Second Charles Deposition).) Dale Ford interviewed and subsequently hired Charles in October 2008 to be PFS's Accounting and Finance Manager. (Id. at 58-60 & Ex. 2.) Charles' responsibilities included "the processing and auditing of payroll, accounts payable, auditing cash receipts, credit card reconciliation, and maintaining all inventory and fixed asset records." (R. 82-1 (Barnum Affidavit).) He also supervised Erica Johnson, who was directly responsible for payroll. (R. 49-1 at 87-88 (Charles Deposition); R. 68-1 at 15-16 (Miller Deposition).) Johnson was responsible for "cutting the physical check[s]" and making "deposit[s] into . . . bank account[s]" for per diem disbursements and for payroll. (R. 70-1 at 45; accord R. 75-1 at 149 (Johnson Deposition).) Charles supervised Johnson as it related to those functions. (R. 70-1 at 45-46.)

In addition to Charles and Johnson, there are other actors relevant to the following narrative: Brett Heap has been the Chief Executive Officer of Farheap Solutions, Inc., and General Manager of PFS for many years. (R. 55-1 at 26 (Heap Deposition).) Rose Zollo was a recruiter employed by PFS and was also Heap's "significant other" at the time. (Id. at 74-75, 87.) Paul Barnum functioned as Heap's Executive Assistant from October 11, 2010 until February 1, 2011, when he became the Chief Operating Officer of PFS. (R. 54-1 at 5.) Robert "Dale" Miller served as the Human Resources Manager for PFS during Charles' employment. (R. 68-1 at 12, 14.) His responsibilities included recruitment, hiring, payroll, employee relations,

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Form I-9 verification, personnel record retention, and progressive discipline.3 (Id.) Last but not least, Marwan Khalifa became the Corporate Controller of Farheap Solutions on January 31, 2011. (R. 72-1 at 14-15 (Khalifa Deposition).) In that role, Khalifa oversaw the accounting department at PFS. (Id. at 18.) Khalifa considered himself to be Charles' supervisor. (Id. at 118.)


The smaller portion of the present controversy dates back to a meeting between Charles, Miller, Heap and Matthew Stack, who was an agent with PFS's health insurance provider, Anchorage Insurance. (R. 49-1 at 186-87.) Charles could not recall exactly when the meeting occurred, but thought it happened sometime in 2010. (Id.) During the meeting, in Charles' words, Heap told Stack "that he was going to fire everybody over 50 in the plant to lower his health premium rates."4 (Id.) According to Charles, Heap's statement is "the only reason" he thought PFS discriminated against him on the basis of his age. (Id. at 187.)


The larger portion of this dispute begins sometime around November 2009, when United States Immigration and Customs Enforcement issued a Notice of Inspection to PFS indicating that it would audit PFS's immigration-related documents. (See R. 77-15.) As a result of its investigation, ICE monitored PFS's hiring practices; issued PFS a Warning Notice dated March 18, 2011; and scheduled a follow-up inspection for August 19, 2011. (See R. 77-22.) Consequently, Charles became concerned about PFS's employment practices generally and about PFS's relationship with two individuals more particularly.

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PFS employed Jose "Cheech" Guzman from 2006 until terminating his employment in December 2009 in connection with the ICE inspection. (See R. 74-8 ¶ 1 (Guzman Affidavit).) Guzman subsequently returned to Mexico where he formed a company, Allmxprint. (Id. ¶¶ 2-3, 5.) In February 2011, PFS retained Allmxprint to assist in "run building," i.e., using computer software to efficiently arrange the printing process. (Id. ¶¶ 4-7; see also R. 49-1 at 98-99; R. 54-1 at 85.) PFS treated Allmxprint as an independent contractor, and Guzman used Skype and other instant messaging services to communicate with PFS employees in Kentucky. (R. 74-8 ¶¶ 6-7.) PFS paid Allmxprint through a PayPal account established in Guzman's name. (R. 54-1 at 84-85.)

Sometime in early February 2011, Charles expressed concern to Barnum about PFS's decision to retain Guzman as an independent contractor. (See R. 49-1 at 95-96.) Charles suspected that Guzman was not authorized to work in the United States because PFS had previously terminated him during the ICE inspection. (Id. at 95-96, 99-100.) Charles worried that Guzman was working in the United States after William "Bill" Morrison, the Production Manager at PFS, told Charles that Guzman might be living with Javier Ortiz, who was a Run Builder at PFS. (See id. at 98; R. 54-1 at 8, 132.) Charles asked Barnum where Guzman resided, and Barnum replied that he wasn't sure, but thought Guzman was in Mexico. (R. 49-1 at 100.) Subsequently, in an e-mail exchange dated February 16, Charles told Johnson that Guzman resided in Mexico and that she need not prepare a Form 1099 for him.5 (R. 49-2 at Ex. 8; see also R. 75-1 at 93-94.)

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But regardless of whether Guzman's resides in Mexico or in the United States, Charles never refused to make any payment to him. On February 18, 2011, Charles told Heap and Khalifa via e-mail that he sent $1,000 to Guzman, and that he would "continue to send [Guzman] $500 weekly until told otherwise." (R. 49-1 at Ex. 9.) When asked at his deposition if he ever declined to make payments to Guzman, Charles responded: "I personally didn't make them, but they were made." (Id. at 100.) Counsel pressed: "Did you ever refuse or decline to have these payments made to Mr. Guzman?" (Id.) Charles responded: "No." (Id.)


PFS hired Jose Salazar as a Bindery Manager in March 2011. (R. 54-1 at 88-89; R. 68-1 at 37.) Salazar was to be an independent contractor until April 2011, at which time PFS would transition him to a regular payroll employee. (R. 55-1 at 127-128; R. 68-1 at 56-57.) To that end, Salazar completed an application for employment, a Form W-4, a Form I-9, and other new hire documents on March 8. (R. 68-1 at Exs. 16-19; see also id. at 113-18.) Salazar also presented what appeared to be a valid California driver's license and social security card as supporting documentation. (Id. at 116; see also R. 74-10.) However, in August 2011, PFS terminated Salazar's employment when he "failed to produce written proof" of his authorization to work in the United States. (R. 55-1 at 130-31.)

Charles harbored two concerns about PFS's decision to employ Salazar. (R. 49-1 at 119.) First, Charles disagreed that Salazar qualified as an independent contractor. (Id.) Second, Charles thought that Salazar was not legally authorized to work in the United States. (Id.) According to Charles, he came to the second conclusion based on a conversation he had with Miller. (See id. at 119-20.) The record is not clear on many details regarding that conversation: For example, according to Charles, his conversation with Miller occurred sometime in March.

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(Id. at 119-20, 137-38.) But Miller testified in somewhat greater detail that his conversation with Charles took place on April 15, 2011. (R. 68-1 at 104; see also id. at 104-09.)

Regardless of when the conversation occurred, as Charles recounts, Miller discussed with him an earlier conversation between Salazar, Miller, and Heap, during which Salazar told Miller and Heap that he had no right to work in the United States.6 (R. 49-1 at 119-20.) Charles testified that he brought his concerns about Salazar to Heap's attention sometime in March 2011. (Id. at 131-32.) As Charles explained during his deposition: "I wanted [Heap] to know that [Johnson] and I were very concerned that Salazar was here illegally and he did not qualify as a 1099 employee." (Id. at 132.) Heap responded, in Charles' words: "Do...

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