Michael Land v. S. States Coop., Inc., Civil Case No. 15-cv-83-JMH

CourtUnited States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
Writing for the CourtJoseph M. Hood Senior U.S. District Judge
Docket NumberCivil Case No. 15-cv-83-JMH
Decision Date09 September 2016

MICHAEL LAND, Plaintiff,

Civil Case No. 15-cv-83-JMH


September 9, 2016



This matter is before the Court upon Defendant Southern States Cooperative, Inc.'s ("Southern States"), Motion for Summary Judgment [DE 64]. In his Complaint, Land avers that he was discharged from the Assistant Manager position at Defendant's Richmond, Kentucky, retail location on March 21, 2014, as a result of discrimination based on disability in violation of the Americans with Disabilities Act ("ADA") and the Kentucky Civil Rights Act ("KCRA"); discrimination based on age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA") and the KCRA; in retaliation for being a member of a protected class with respect to disability and age, as well as in retaliation for his use of FMLA leave and his requests for reasonable accommodation under the ADA, ADEA, and KCRA; and in breach of an employment contract. Defendant argues that all of his claims must fail. Plaintiff objects in his Response [DE

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67], and Defendant has filed a Reply in further support of its Motion [DE 69]. For the reasons which follow, Defendant's Motion will be granted.


Land spent close to thirty years running his own plant nursery business. Eventually, he applied and was hired as an Assistant Manager for Southern States' retail store in Richmond, Kentucky on April 17, 2011. The store sells goods and services ranging from animal feed and health, crops, farm supplies, and propane. At the time of his employment application, Land represented that he could lift a fifty-pound bag of feed. As assistant manager, Land's duties included giving warehouse personnel directions and orders, filling in at the store counter or in the warehouse when clerks or warehouse personnel were gone or sick, and tracking leased propane equipment by documenting lease agreements for leased equipment. He was also responsible for directing recordkeeping and inventory control, being present on the store floor, following corporate standards, filling in for other employees as needed, and performing duties as assigned. Land's position included desk work, and Land worked from time to time in the assistant store manager's office, which was located behind another office and from which one cannot see what is going on out on the floor in the store. It was also

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possible to complete some of that desk or computer work on the floor at another computer, sitting on a ladder if needed.

He had no employment contract with Southern States and received "Work Rules" providing that "[e]mployment is at-will and shall continue only as long as the employee and the company both want it to continue" and an Employee Handbook which stated that employment with Southern States was "at will" absent a written employment contract signed by the CEO of Southern States. He (but not the Southern States' CEO) also signed an Information and Non-Solicitation Agreement as part of his hiring packet which makes no suggestion that it was intended to abrogate Land's at-will employment status nor purported be an employment contract. When he was hired, he was provided a copy of Defendant's anti-harassment and anti-discrimination policy, which set out the process for addressing complaints of unlawful harassment and discrimination. Land's employment application to Southern States represented that he understood that his employment with Southern States would be at-will.

During Land's employment, the Richmond store had six to nine full-time employees, including warehouse personnel, the Assistant Manager (Land), and the store Manager (Richard Winn). The store also had one to two part-time employees and occasional temporary seasonal help. Land describes the store as short on staff, which he believed to be the result of budgetary

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shortfalls and lack of funds. Winn was Land's direct supervisor. On May 8, 2012, and April 24, 2013, Winn gave Land generally good written reviews, reflecting that he "achieved expected performance," but testified that Land was "not a real good people person . . . kind of withdrawn, kind of a little abrupt, can be a little bit rude to people," gave vague directions and orders, and "would not discipline people." Donna Garcia, a manager in Southern States' human resources department observed that Land's appraisals from Winn were all good and there were no writeups in his personnel file.

During Land's employment, two District Managers were responsible for the Richmond store: Mike Hash (from Land's hire until June 30, 2012, and from July 1, 2013, through the termination of Land's employment) and Jim Briedwell (from June 1, 2012, through June 30, 2013). During Hash's absence in the summer of 2013, Briedwell provided the services of district manager for the Richmond store until Hash's return in August 2013. As a general matter, the district manager visited the Richmond store once every two weeks, sometimes for about four hours at a time. The assistant store manager would receive instructions and directions from both the district manager and the store manager. Land was not impressed with his managers, describing Hash as a "micromanager" and Briedwell as a "bully." He felt that neither Hash, Briedwell, nor Winn did anything

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particularly well during his time with Defendant. Terry Sweat served as regional manager responsible for the Richmond store during Land's employment.

Sweat observed that the Richmond store showroom, storefront, and outside lot area were maintained in a way that was below average for company standards during most of his store visits from April 2011 to July 2012. Briedwell was aware of Sweat's concerns when he became district manager, including concerns about Land's job performance. Briedwell was not happy with the store's compliance with company standards either, and he understood that it was Land's responsibility to make sure that the inside and outside of the store were up to the corporate standards. Shortly after he became district manager in June 2012, Briedwell told Land that he needed to step up and do more of what he had been hired to do as Assistant manager or "they would hire someone younger and pay them - - and could pay them less." In early to mid-fall of 2012, Briedwell told Land that Land was in charge of making sure that the inside of the store was up to Southern States' standards, that corporate floor, shelving, and stocking plans for the store were set, and that the outside of the store was generally clean. He also advised that Land would work on setting up a garden center at the store. Land felt the garden center was a bad business

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decision and disagreed with various decisions involving in the garden center by upper management.

Briedwell repeatedly told Land that he was unhappy with his performance and that Land needed to keep up with the corporate floor, shelving, and stocking plans and spend less time in the office. Sweat continued to observe that the store was below the standards set for its condition. Briedwell also told Land that he had heard negative comments from store employees about Land. Briedwell concluded that Land did not believe him because, when Briedwell would not tell Land which employees had complained, Land told him that "you can't make a comment like that, unless you can back it up." Land responded to a written account of Briedwell's critiques by disputing the criticisms or placing blame on Winn or another store employee.

Land had a knee replacement surgery on June 6, 2013.1 Before his knee surgery, Land requested leave through August 7, 2013, and his request was approved. Land developed cellulitis following the surgery, which necessitated extended leave from work. Land brought the papers concerning his leave request to work, and Winn "threw the papers back at" Land and told him to contact human resources. Land sent the papers to human resources and was approved to take additional time off after his surgery. At some point during his leave, Land came in for part

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of a day to complete inventory, but he did not record any time for it. After some time had passed, Land's physician, Dr. Jeffrey Selby, authorized Land to return to work on July 2, 2013, for 4 hours a day and without lifting or standing for more than an hour at a time. During the period of this restriction, Land recorded four hours of work a day, even though he stayed at the store for longer periods of time because he felt that his help was needed for customers. Land verbally expressed his concerns about this situation to his immediate supervisor, Winn, but was reluctant to express too much concern because Land thought that Winn had a bad attitude about employees being off from work. Land based this belief on Winn's response when he brought his paperwork for additional time off to the store and because of an instance in which the two had discussed another employee's workers compensation benefits for an injury received at home with which Winn disagreed. Land described how Winn had "looked at [Land] and turned red in the face" when Land indicated that he felt it was a corporate decision.

More time passed, and Dr. Selby loosened Land's work restrictions on July 24, 2013, permitting him to work six-hour days for two weeks and then eight-hour days, with lifting limited to no more than 25 pounds and standing limited to two hours at a time. Land occasionally ignored those restrictions. He never told Winn that he was doing work in excess of the

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restrictions, but Winn never intervened when he saw Winn lifting a bag or undertaking other activities. Sometimes Land would stand at the counter, hold up his leg and shake it, before sitting down on a bag of dog food and saying, "man, my knee is killing me today, and shew, I've got to sit down a minute." Winn responded, "well can you handle it? I'm gone for the day."...

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