In October of 2013, the United States District Court for the Western District of Kentucky decided a case that involved Kentucky Wrongful Termination or Wrongful Discharge and Retaliation. (See Cole v. Management & Training Corp., 2013 WL 5924431 (W.D. Ky. 2013)). The Kentucky plaintiff was terminated on October 21, 2010 from the defendant corporation. At the time of the firing, he was Deputy Director. Id. The company assists young, low income individuals obtain a high school education as well as assisting them to find a job. Id. The company operates under the Department of Labor national Job Corps program. Id.
Plaintiff was placed in the executive development program which could have led plaintiff into becoming a future director of a facility one day. But, due to poor performance at the facility, the company sent a woman to assist the plaintiff and improve the center. Id. Plaintiff claims the harassment by the new woman to assist began in September of 2009. Id. Plaintiff is an African-American, married to a Caucasian woman and has two children with her. This new woman was making snide remarks about plaintiff and him having a ‘thing for white women’. Id.
Plaintiff reported the comments to his Director. He also filed a complaint with HR. Also during this time HR did an investigation into the plaintiff having alleged affairs with co-workers. Nothing was found and in fact a month later, plaintiff was recommended to receive a merit-based salary increase. But, he was denied the increase. Id. Plaintiff was told he did not receive merit increase because of “white women around here.” Id.
Another harassment occurred while plaintiff was at a meeting and a female assistant grabbed his arm and started asking him about an alleged previous sexual experience he allegedly had. Plaintiff denied it and asked that she stop talking to him this way and to stop touching him. Plaintiff told his supervisor what happened but nothing ever came of it.
Next, plaintiff says that he was asked to violate the Department of Labor’s Zero Tolerance Policy. Id. Plaintiff claims he was asked not to prosecute students who were caught with small amounts of marijuana. Id. Plaintiff refused said request. Id.
Plaintiff was eventually terminated on October 21, 2010 for three main reasons, 1) careless and inefficient performance of duties, 2) violation of company rules, and 3) involvement in a criminal act or negative behavior. Id. Accordingly, after this, plaintiff found a Kentucky Wrongful Termination or Wrongful Discharge and Retaliation lawyer and sued the defendant alleging 1) hostile work environment based on race and sex discrimination, 2) unlawful terminating for refusing to violate the law, 3) retaliation for reporting the sex and race discrimination, and 4) intentional infliction of emotional distress. Id.
Plaintiff’s Kentucky Wrongful Termination or Termination and Retaliation lawyer sued the defendant claiming it violated both Title VII and the KCRA. In order for their to be racial harassment under Title VII it must be severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Id. The same for sexual harassment cases. Id. “Simple teasing, .. offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” (cites omitted). It should be noted that the Sixth Circuit has held that “one racial slur by a coworker does not make meet the objectively severe requirement for a hostile work environment.” (cites omitted). The court also looked at the other comments about plaintiff sleeping with other white women at work as a non-issue in that “Title VII was not meant to create a ‘general civility code’ and the ‘sporadic use of abusive language, gender-related jokes, and occasional teasing’ are not sufficient to establish liability.” (cites omitted). Accordingly, the court dismiss plaintiff’s hostile work environment claims based on race and sex.
As to the retaliation claim, the court found that the plaintiff presented enough evidence to establish a prima facie case. But, then the burden shifts to the defendant to see if it has a legitimate reason or pretextual one. In the case at hand, the defendant did show a legitimate nondiscriminatory reasons for plaintiff’s firing. He had many write ups and was given a Notice of Causation. The burden then switches to the plaintiff to show that the real reason is pretextual. The plaintiff could not do that in this case. The people that decided to fire plaintiff had nothing to do with him being written up.
Finally, as to the wrongful termination or wrongful discharge, the court noted that Kentucky is a terminable-at-will state. Id. In order to prove a wrongful discharge, a plaintiff must show that his termination was the result of either 1) failing or refusing to violate the law, or 2) exercising “right conferred by well-established legislative enactment.” (cites omitted). Plaintiff’s claim of unlawful termination relies solely on a federal statute violation. The public policy exception only applies to laws of Kentucky. The Sixth Circuit has found that “refusing to break a federal law fails to support a claim for wrongful termination in Kentucky.” (cites omitted). (Federal regulations cannot form the basis of a wrongful discharge claim in violation of public policy in Kentucky.) (cites omitted). Therefore this claim as well was dismissed.
If you have been the subject of a Kentucky Wrongful Termination or Wrongful Discharge and Retaliation case, please call and speak to a Kentucky Wrongful Termination or Wrongful Discharge and Retaliation lawyer at the Law Offices of Andrew Alitowski, P.A. at 888-ASK-ANDREW (888-275-2637) or contact us. We are available 24 hours a day, 7 days a week.
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