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Court of Appeals of Kentucky.


NO. 2011–CA–000391–MR

Decided: January 13, 2012

BEFORE:  ACREE, CAPERTON, AND VANMETER, JUDGES. BRIEFS FOR APPELLANT:  Beth A. Bowell Robert L. Roark Lexington, Kentucky BRIEF FOR APPELLEE:  Brooke T. Iley Keith W. Ransdell Lexington, Kentucky



Harry Robinson appeals from a summary judgment entered by the Anderson Circuit Court dismissing his age discrimination claim against his former employer, General Cable Corporation (“General Cable”).   For the following reasons, we affirm.

Robinson was hired by General Cable in June 1993 as a maintenance mechanic, and was later promoted to a group leader.   On March 16, 2006, while Robinson and his supervisor, John McKinney, were discussing repairs to a pump, another General Cable employee, Josh Satterly, placed his arms around Robinson's shoulders and pinned his arms down.   Robinson swung his left arm and hit Satterly in the groin.   Satterly walked away and sat down at a table appearing to be in pain.   McKinney asked Robinson to apologize, but he refused.

Thereafter, McKinney called Robinson into his office to discuss the incident with himself and Jeff Hosp, McKinney's supervisor at General Cable.   Robinson told McKinney and Hosp that he had previously told Satterly to keep his hands off him and also stated that the next time Satterly touched him he would “wrap a pipe around his head.”   Satterly reported the incident to the Human Resources Manager of General Cable, Jeremy Couey, who spoke with Satterly, McKinney and Robinson about the incident.   Robinson again repeated that he would wrap a pipe around Satterly's head if he touched him.   Couey suspended Robinson without pay pending an investigation, and immediately sent him home from work.

Under General Cable's policies, the decision of whether to terminate an employee is made by the Human Resources Manager, and is reviewed by the local plant manager and the Human Resources Department at General Cable's headquarters.   As part of his investigation, Couey concluded that Satterly placed his arms around Robinson in a “non-aggressive manner,” did not use force, and did not provoke Robinson in the incident.   He indicated that Robinson was not acting in retaliation to protect himself when he struck Satterly.   Additionally, Couey discussed the incident with the local plant manager, Frank Brown, and the Vice President of Labor Relation at General Cable's corporate offices, Robert Schlosberg, both of whom had authority to disapprove of Couey's decision.   Neither Brown nor Schlosberg knew of Robinson's age, and neither disapproved of his termination.

General Cable terminated Robinson's employment on March 21, 2006, for what Couey stated was a violation of the zero tolerance anti-violence policy contained in the employee handbook. Double At the time of Robinson's termination, he was 60 years of age.   His position was filled two months after his termination by Philip Horsemen, who is under 40 years of age, had fifteen years of experience, and was the only candidate to previously hold a position as a group leader.

Robinson appealed his termination to the Employee Appeals Board (“Board”) of General Cable, which is comprised of two members of management and three hourly employees.   Under General Cable's policies, the Board has the authority to overturn a decision to terminate an employee by the Human Resources Manager.   The Board affirmed Robinson's termination.

Robinson then filed this action, alleging that General Cable terminated his employment due to his age, and in doing so, violated the Kentucky Civil Rights Act, particularly KRS  Double 344.040.   General Cable filed a motion for summary judgment, which the trial court denied.   After an extended period of discovery, General Cable filed a renewed motion for summary judgment, which the trial court granted on the basis that Robinson did not present sufficient evidence to demonstrate that General Cable selectively applied its anti-violence policy to discriminate against him based on his age.   This appeal followed.

Summary judgment shall be granted only if “the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”   CR  Double 56.03.   The trial court must view the record “in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.”  Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991).   Further, “a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.”  Id. at 482.

On appeal from a granting of summary judgment, our standard of review is “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.”  Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App.2001) (citations omitted).   When no factual issues are involved and only legal issues are before the court on a motion for summary judgment, we will not defer to the trial court and our review is de novo.  Hallahan v. Courier–Journal, 138 S.W.3d 699, 705 (Ky.App.2004) (citations omitted).

On appeal, Robinson argues that the trial court erred by granting General Cable's motion for summary judgment because the evidence showed his violation of the anti-violence policy did not actually motivate General Cable's decision to terminate his employment;  rather his age was the motivating factor.   Robinson maintains that General Cable did not enforce the anti-violence policy against employees under the age of 40, and therefore selectively applied the policy in a discriminatory manner.   We disagree.

KRS 344.040(1) makes it unlawful for an employer to discriminate against an employee age 40 or over.   In the absence of any direct evidence of discrimination, a plaintiff must satisfy the burden-shifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).  Flock v. Brown–Forman Corp., 344 S.W.3d 111, 114 (Ky.App.2010) (citing Williams v. Wal–Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky.2005)). Double Under the McDonnell Douglas burden-shifting framework, a plaintiff must first establish a prima facie case of age discrimination by showing that he:

“(1) was a member of a protected class, (2) was discharged, (3) was qualified for the position from which they were discharged, and (4) was replaced by a [significantly younger person].”  Williams, 184 S.W.3d at 496 (citations omitted).   Then, the burden shifts to the employer to articulate a legitimate, nondiscriminatory motivation for the actions taken.  McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.   Finally, the burden shifts back to the plaintiff to demonstrate that the actions taken were motivated by his age, and that the motivations articulated by the employer were merely a pretext of age discrimination.  Id. at 804, 93 S.Ct. at 1825.

Here, neither party disputes that Robinson established a prima facie case of age discrimination, or that General Cable asserted a legitimate, nondiscriminatory motivation for its decision to terminate Robinson.   At issue in the case at bar is whether Robinson met his burden of establishing that General Cable's asserted motivation was merely a pretext for age discrimination.   Robinson can meet this burden by showing that:  “(1) the proffered reasons for the employment decision are false;  (2) the proffered reasons did not actually motivate the decision;  or (3) the reasons given were insufficient to motivate the decision.”  Flock, 344 S.W.3d at 116 (citing Williams, 184 S.W.3d at 497).

Though striking another employee constitutes sufficient grounds for General Cable to terminate employment, Robinson alleges that General Cable was not motivated by the application of the anti-violence policy, but actually sought to terminate his employment due to his age.   To establish this, Robinson set forth evidence before the trial court of what he deemed to be comparable employees who were significantly younger than himself, and were treated less harshly under the anti-violence policy.

First, Robinson presented evidence regarding an incident with Ricky Hellard, a General Cable employee is under the age of 40, in which he grabbed a female co-worker by the arm who was turned away from him in order to get her attention in a noisy area of the plant, which left bruises on her arm.   The incident was reported to Human Resources, and during its investigation, Hellard was apologetic and remorseful for his actions.   As a disciplinary requirement of General Cable, Hellard was to attend an anger management class, was suspended without pay, and was placed on final notice, meaning if he were to commit another violation he would be terminated.   As noted by the trial court, the physical contact between Hellard and his co-worker was factually dissimilar from Robinson's contact with Satterly.   Hellard's contact was an attempt to get the attention of a co-worker and he was remorseful and apologetic of his actions.   Robinson's contact was aggressive, he was not remorseful, he refused to apologize, and he repeated on two separate occasions that he would “wrap a pipe around his head” if Satterly touched him again.

Next, Robinson points to a verbal argument between Brent Stevens and Kenny Hawkins, two General Cable employees, described as heated and involving the use of profanity.   At the time of the incident, Stevens was 40 years old and Hawkins was 51 years old.   Neither was disciplined for the incident.   Robinson also cites two incidents involving Denny Blissard, one between he and John Young, and another between he and Fred Harris, all General Cable employees.   Blissard stated that he and Young had a verbal argument, and when Young “got into his face,” Blissard “set him away” in order to get by him.   Blissard also engaged in several verbal arguments with Fred Harris.   Blissard was 52 years old at the time of the incident with Young, and 49 years old at the time of the incident with Harris.   Blissard was not disciplined by General Cable for either incident.   Again, as the trial court determined, the incidents involving Stevens, Hawkins and Blissard are not comparable to the circumstances surrounding Robinson's termination.   These incidents only amount to verbal arguments and no instances of physical violence were found to have taken place by General Cable.

The final incident Robinson presented to the trial court for comparison was an argument between Doug Satterly and Aaron Cole, two General Cable employees.   Cole threatened Satterly with physical violence, and, after a verbal argument between the two, Human Resources sent Cole home from work.   Satterly explained that the incident amounted to Cole yelling at him while he was seated at a desk.   Cole was suspended from work without pay for over a week, his schedule was changed so he would not work with Satterly, and he was placed on final notice.   Cole's age at the time of the incident is unknown, but Satterly was 37 at the time.   Although the trial court conceded that the incident between Satterly and Cole was the most factually similar incident to the present case, it only involved a heated argument and a threat of physical violence.   It did not demonstrate a selective application of the anti-violence policy in order to discriminate.   Thus, Robinson failed to present any evidence of an incident involving a comparable younger employee who physically struck a co-worker, threatened to do it again, and was not terminated from employment with General Cable.

General Cable presented evidence of an incident involving Josh Moore, a General Cable employee, who after engaging in a verbal argument with a co-worker, threw a wrench which hit the co-worker in the back.   Moore was under the age of 40 at the time of the incident and was terminated from his position with General Cable for violating the anti-violence policy.   The trial court found this incident to be the most similar to the circumstances leading to Robinson's termination. Double

Based on the record, we are unable to conclude that the trial court erred by finding Robinson failed to present any issues of material fact regarding General Cable's application of its anti-violence policy.   The incidents Robinson believes constitute evidence of General Cable's selective application of the anti-violence policy are not comparable to the circumstances surrounding Robinson's termination.   Therefore, under the facts presented, and viewed in a light most favorable to Robinson, no evidence of pretext to age discrimination was shown.

The judgment of the Anderson Circuit Court is affirmed.