Successful Dismissal of Widely Debated Issue: Sexual Orientation as a Protected Class
We represented a client that operates correctional facilities, detention centers and workforce development sites to defend a lawsuit brought by a former employee alleging race discrimination, sex discrimination, retaliation and breach of contract. The former employee identified as gay. Before costly discovery was conducted, we moved to dismiss all claims except one. The United States District Court of the Western District of Kentucky granted our motion to dismiss, significantly limiting our client’s exposure.
The dismissal of the plaintiff’s sex discrimination claim was particularly important because Title VII and the Kentucky Civil Rights Act (KCRA) protections related to sexual orientation have been widely debated in recent years. The United States District Court of the Western District of Kentucky agreed with our arguments and held that sexual orientation is not a prohibited basis under Title VII and the KCRA.
Successfully Defended a Client Against Claims of Age and Sex Discrimination
In 2017, we successfully defended our client, a multi-national corporation, against claims of age and sex discrimination under Title VII, the Age Discrimination in Employment Act (ADEA), and Kentucky's Civil Rights Act (KRS Ch. 344). The two plaintiffs were former employees of our client's manufacturing plant in eastern Kentucky. Due to a plantwide reduction-in-force (RIF), the plaintiffs and other employees were laid off pursuant to the collective bargaining agreement between our client and the employees' union. The pair sued, claiming their layoffs were not based on seniority, but rather were based on their gender and age.
We took both plaintiffs' depositions, defended the deposition of our client's company representative, engaged in extensive discovery, and filed a motion of summary judgement, which was granted in our client's favor on the eve of a jury trial. The case was dismissed as to all claims with prejudice. In granting summary judgement, the court held that the plaintiffs had not identified facts that established a prima facie case for employment discrimination under the heightened RIF standard, which requires a plaintiff to provide additional direct, circumstantial or statistical evidence indicating that the employer had "singled out" the plaintiff for discharge for impermissible reasons. Further, the court held even if plaintiffs were able to establish a prima facie case against our client, they failed to provide evidence our client's reasons for the plaintiffs' layoffs were pretextual.
Allegations of age discrimination against an international media company
Prior to trial, we successfully moved the court to dismiss plaintiff’s intentional infliction of emotional distress claim, arguing that pursuant to Kentucky law the claim was precluded by his age discrimination claim. We also successfully limited the evidence plaintiff sought to use at trial, including evidence of the company’s overall financial state as described in public filings.
During the eight-day trial in Jefferson Circuit Court, we established the company’s non-discriminatory reason for plaintiff’s termination: his highly paid job position was eliminated for business reasons due to a corporate restructuring. The jury of seven men and five women determined that age was not a “substantial motivating factor” in terminating the executive or in refusing to offer him another job position, finding for the defendant on both counts of age discrimination. The plaintiff did not appeal the jury’s verdict and the case is now final.
Allegations of Age Discrimination and Hostile Work Environment
We defended a convenience store chain against allegations of age discrimination, hostile work environment and discriminatory discharge from a former employee. The plaintiff, an 11-year employee who was 57 years old, was terminated after a third violation of store policy prohibiting employees from purchasing lottery tickets while on the clock. The plaintiff claimed that the tickets were purchased for her sister, a customer who was undergoing chemotherapy and was unable to visit the store. The plaintiff also asserted that she and other employees had been subjected to age-hostile comments from management-level officials and, upon termination, filed suit alleging that her former employer had violated the Kentucky Civil Rights Act, KRS Ch. 344, by subjecting her to an age-hostile work environment and to an age-discriminatory discharge. She also asserted claims for failure to pay accrued vacation under Kentucky law, KRS Ch. 337, intentional infliction of emotional distress and public policy wrongful discharge. Ultimately the plaintiff’s wage and hour, emotional distress and public policy wrongful discharge claims were dismissed, and the case went to trial on the plaintiff’s civil rights claims.
Prior to trial, we utilized targeted discovery and motions in limine to limit the plaintiff’s damages, including a motion to exclude evidence of the plaintiff’s lost wages and a motion to strike her claim for back pay. The plaintiff admitted that she had only applied for one job in the three years since her termination, and that she had stopped looking for work after applying for Social Security disability benefits. The Court ruled that the plaintiff had not used reasonable efforts to find alternate employment to limit her damages, and that the receipt of Social Security benefits barred her claim for lost wages.
During a four-day jury trial in Jefferson Circuit Court, we discredited a former manager who testified to having also been subject to age discrimination. We also discredited the plaintiff’s story of purchasing the lottery ticket for her sister, after the sister testified that she was not undergoing chemotherapy treatments at the time the ticket was purchased, and that she had, in fact, stopped playing the lottery. The 12-member jury found in favor of the defendant of the plaintiff’s claims of an age-hostile work environment and an age-discriminatory discharge. The plaintiff’s deadline to appeal passed, and the defense verdict became final.
Darrell Sams and Diana Cheek v. Wal-Mart
The trial court dismissed Plaintiffs' claims on summary judgment. Sams and Cheek appealed only the dismissal of their defamation claims. Agreeing with the trial court, the Kentucky Court of Appeals held that the alleged statements were true and, therefore, not defamatory. Moreover, the Court held that the statements were privileged as their intra-company communications and part of quasi-judicial proceedings. Accordingly, the Kentucky Court of Appeals affirmed the trial court’s summary judgment and the case was dismissed in its entirety.
Defense Verdict in Race Hostile Work Environment Claim
Following discovery, the company filed a motion for summary judgment on plaintiff’s claims in their entirety. The Court dismissed the plaintiff’s claim that he had been terminated due to his race or in retaliation for complaining about race discrimination inasmuch as he was unable to rebut the employer's legitimate business reason for his termination. In addition, the Court dismissed the plaintiff’s claims that he and other minority employees had been forced to work in unsafe working conditions as barred due to his failure to pursue his administrative remedy and because he lacked evidence that minority employees were singled out.
In February 2012, the case was tried in Jefferson Circuit Court on the plaintiff’s remaining claim that he was subjected to a racially hostile work environment. The Company presented proof that nearly 20% of its workforce is African-American and that almost half of those employees had worked for the Company for over 15 years. The manufacturer also put on evidence of its zero tolerance for harassment of any kind. Following a two-day trial which included testimony of seven witnesses, the 12-person jury found unanimously in favor of the company on the plaintiff’s claim that he had been subjected to a hostile work environment due to the presence of rope nooses and racial graffiti. After the trial court denied a motion for a new trial, plaintiff appealed the jury verdict to the Kentucky Court of Appeals, but voluntarily dismissed his appeal before filing his brief, concluding this matter.
Developed Entire Workforce Governance Framework for New Company
The success of any business is directly tied to its employees. From their tangible contributions to the company to the mindset and culture they instill, a good workforce can be the tool that takes a company to the next level.
Tri-Arrows Aluminum embraces a “gold standard” approach to doing business, challenging its employees to go above the call of duty and push the company to new heights while also maintaining an atmosphere of conducting business the “right way.” Formerly a subsidiary of BP Company North America that was known as ARCO Aluminum, Tri-Arrows turned to Dinsmore for counsel when it became clear it would soon be an independent company. Recognizing the opportunity to start anew, Tri-Arrows enlisted Dinsmore to begin drafting new policies and procedures, including a new payroll structure and performance review system, as well as providing guidance on which employment laws the new company was, or was not, required to comply with in its new form with a smaller workforce. Integrating ourselves in the culture of the new company, we drafted a new employee handbook, modifying the legacy policies to fit the new regime, but also constructing a unique framework that reflected the objectives of Tri-Arrows.
Once the basic framework for their employment procedures was established, we continued to offer guidance on business ethics, including conducting on-site Code of Ethics training for employees. Understanding the potential for concern caused by Tri-Arrows unique joint venture agreement, in which they have shared manufacturing facilities with a competitor for over a quarter of a century, our team worked with Tri-Arrows’ employees to address issues of confidentiality and the handling of business-sensitive information, arming the employees with the knowledge they needed to uphold the company’s mission without compromising proprietary information.
As Tri-Arrows continues to grow, its employment needs grow as well. Our attorneys have teamed with the company to provide a variety of services, including reviewing compensation plans, detailing job descriptions and employee classifications, and formally instituting a performance evaluation process. Our detail-oriented approach to employment counseling has fallen in step with Tri-Arrows’ professional culture, and we’ve helped this newly-formed company build a solid foundation that will enable it to reach the next level.