McCartt v. Kellogg USA, Inc.

• Decision Date: 14 October 2015
• Docket Number: Civil Action No. 5:14-318-DCR
• Citation: 139 F.Supp.3d 843
• Parties: James B. McCartt, Plaintiff, v. Kellogg USA, Inc., et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

139 F.Supp.3d 843

James B. McCartt, Plaintiff,

v.Kellogg USA, Inc., et al., Defendants.

Civil Action No. 5:14-318-DCR

United States District Court, E.D. Kentucky, Central Division. (at Lexington).

Signed October 14, 2015

Litany L. Webster, Walther, Roark & Gay, P.L.C., Robert L. Roark, Robert L. Roark, PLLC, Lexington, KY, for Plaintiff.

Lawrence J. Murphy, Timothy P. Monsma, Varnum LLP, Grand Rapids, MI, Elizabeth Snow Hughes, Green, Chesnut & Hughes PLLC, Lexington, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

Danny C. Reeves, United States District Judge

This matter is pending for consideration of Defendants Kellogg USA, Inc.'s and Kellogg Sales Company's (jointly, "Kellogg") motion for summary judgment. [Record No. 48] Plaintiff James B. McCartt asserts claims of age-related discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. , and the Kentucky Civil Rights Act ("KCRA"), KRS Chapter 344, et seq . [Record No. 1, pp. 3–6] He also alleges that he is owed back pay and overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. , and the Kentucky wage statute, KRS § 337.010, et seq . [Id. , pp. 9–11] In addition, McCartt asserts a public policy claim premised on the alleged ADEA and FLSA violations. [Id. , p. 12]

For the reasons outlined below, the Court will grant summary judgment in favor of Kellogg regarding the plaintiff's claims of retaliation (Counts III and IV), violation of the FLSA and Kentucky wage statute (Counts V, VI, and VIII), and public policy violations (Count VII). However, Kellogg's motion will be denied with respect to the remaining ADEA and KCRA claims (Counts I and II).

I.

As outlined in the opinion addressing the defendants' in limine motion [Record No. 69], Kellogg USA, Inc. and Keebler Foods Company ("Keebler") manufacture food products. [Record No. 48–1, p. 5] McCartt was hired by Keebler in 1979 as a Territory Manager ("TM") for the Lexington, Kentucky area. [Record No. 53–2, p. 5] Kellogg acquired Keebler in 2000. Following that acquisition, McCartt's title was changed to the Retail Sales Representative ("RSR") of District 797, which includes the greater Lexington area. [Record No. 53–2, p. 7] The RSR position was functionally similar to the TM position, except for an emphasis on sales starting in April 2011. [Id. , pp. 7, 10, 15, 19; Record No. 48–6, "Job Profile"] RSR duties included: merchandising orders, making incremental sales, building displays, and managing merchandisers. [Record No. 53–2, pp. 8–9] The plaintiff alleges that he worked 95% of weekends, resulting in a work-week of over sixty hours. [Id. , p. 26] He further claims that he generally did not take meal or rest breaks. [Record No. 1, ¶ 68]

RSRs' direct supervisors were District Managers, whose supervisors, in turn, were Senior Retail Managers (or Zone Managers). [Record No. 53–2, pp. 11–12] District Managers performed mid-year assessments of the RSRs. [Record No. 53–2, p. 15] McCartt's mid-year evaluation in 2012 demonstrated that he was using only 68% of his variable labor and that he was $19,000 behind budget. [Id. , p. 18; Record No. 48–11, "Performance Development Plan"] McCartt achieved only 91.7% of his sales goals in 2012. However, in the final month of 2012, he was the highest-ranked RSR in his district. [Record No. 48–10, "Period 12, 2012 Regional Score Card"]

In early 2013, Kellogg restructured its sales force, combining its "Morning Foods" sales force with its "Snacks" sales force. [Record No. 48–12, ¶ 4, "Anderson Decl."] As a result, fewer overall RSR roles were available. In January, all the Zone Managers convened in Chicago to assess the RSR sales force. [Id. , ¶ 5] However, they were not told the reasons for the assessment. [Id. ] As part of this process, Zone Managers assessed each RSR in his or her zone according to technical and Kellogg Business Leader Model ("KBLM") competencies, giving each a score of one to five. [Id. ] The Zone Managers were instructed to rely on employee "scorecards," which contained objective figures, as well as their personal experience with the RSRs. [Record No. 48–14, ¶ 5, "Grzanka Decl."]

Next, the Human Resources ("HR") department created pools of RSRs for comparison purposes. [Record No. 48–12, ¶ 6] Essentially, HR compared all Snacks RSRs who had over 50% of their assigned stores within 25 miles of a particular Morning Foods RSR's residence. [Id. ] The RSR with the lowest average score in each pool was displaced. [Id. ] Megan Anderson was the HR person responsible for pooling assessments in the Cincinnati Zone, which included McCartt. [Id. , ¶ 8] Because Grzanka's assessment of McCartt was the lowest in his pool, HR decided to terminate him. [Id. , ¶ 9]

In February 2013, interim District Manager Andrew Hart and Zone Manager Kevin Grzanka met with McCartt to inform him that a rumored "list of targeted employees" did not exist. [Record No. 53–2, p. 20] During that time, McCartt's prior District Manager, John Taylor, allegedly informed McCartt of a comment by Grzanka regarding the plaintiff. [Record No. 53–2, p. 23] The conversation between Grzanka and Taylor purportedly occurred during Taylor's midyear evaluation (summer 2012), after Taylor remarked positively on McCartt but stated that he could be more "aggressive" about displays. [Record No. 53–13, pp. 36–37, "Taylor Deposition"] During his deposition, Taylor alleges that Grzanka responded, "Mr. McCartt is too old and set in his ways to make the changes necessary. We need to, more or less, move in different directions." [Id. , p. 37] In his Complaint, the plaintiff alleged that he reported this comment to his superiors prior to his termination. [Record No. 1, ¶ 34] However, in his deposition, he denies reporting the comment at any time prior to his termination. [Record No. 53–2, p. 25]

On March 5, 2013, one month after Taylor informed McCartt of the allegedly-biased statement, Hart and Grzanka informed McCartt of his termination, which was effective April 12, 2013. [Id. , p. 22; Record No. 48–17] The plaintiff was over sixty years-old at the time of his termination. [Record No. 1–6, p. 3, ¶ 9] McCartt believed that his termination was the result of age discrimination, and he claims that he informed HR of his belief. [Record No. 1, ¶ 34] He further reports that HR then told him that Kellogg would not consider him for rehire. [Record No. 53, p. 26]

At the time of McCartt's separation from the company, Kellogg offered him a severance benefit package in exchange for him signing a release of any claims he might have. [Record No. 53–2, p. 25] He refused to sign the severance agreement, but Kellogg began sending him checks. [Id. , p. 26] Once McCartt informed Kellogg of the error, the payments stopped. [Id. ]

McCartt claims age-related discrimination and retaliation by Kellogg in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. , and the Kentucky Civil Rights Act ("KCRA"), KRS Chapter 344, et seq. [Record No. 1–6, pp. 3–9] He also alleges that he is owed back pay and overtime under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. , and the Kentucky wage statutes, KRS § 337.010, et seq. [Id. , p. 9-11] In addition, he seeks to pursue public policy claims premised on the alleged ADEA and FLSA violations. [Id. , p. 12]

The defendants sought to exclude the allegedly-biased statement by Grzanka mentioned above, but the Court denied their motion. [Record No. 69] They have also moved for summary judgment on the plaintiff's claims (Counts I through VIII). [Record No. 48]

II.

Summary judgment is appropriate when there are no genuine disputes regarding any material facts and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; see Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Chao v. Hall Holding Co. , 285 F.3d 415, 424 (6th Cir.2002). A dispute over a material fact is not "genuine" unless a reasonable jury could return a verdict for the nonmoving party. That is, the determination must be "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." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; see Harrison v. Ash , 539 F.3d 510, 516 (6th Cir.2008). In deciding whether to grant summary judgment, the Court views all the facts and inferences drawn from the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III.

A. ADEA and KCRA Claims

Kellogg has moved for summary judgment on McCartt's ADEA and KCRA claims, arguing that he has failed to: (i) present direct evidence of age discrimination; (ii) establish a prima facie case of age discrimination based on circumstantial evidence; and (iii) establish that Kellogg's articulated reason for the termination was a pretext for discrimination. [Record No. 48–1] Under the ADEA and the KCRA, it is unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) ; K.R.S. § 344.040(1) and (2).¹

A plaintiff may establish a claim under the ADEA and/or KCRA by offering either direct or circumstantial evidence of discrimination. Mitchell v. Vanderbilt Univ. , 389 F.3d 177, 181 (6th Cir.2004). "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 action.’ " Wexler v. White's Fine Furniture, Inc. , 317 F.3d 564, 570 (6th Cir.2003) (quoting Jacklyn v. Schering – Plough Health c are Prods. Sales Corp. , 176 F.3d 921, 926 (6th Cir.1999) ). If a...