RENDERED: APRIL 15, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0560-MR
THOMAS LIGHTFOOT APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE ERNESTO M. SCORSONE, JUDGE ACTION NO. 18-CI-02302
FORTERRA PRESSURE PIPE, INC.; FORTERRA CONCRETE INDUSTRIES, INC.; FORTERRA PIPE & PRECAST, LLC; AND JOHN DOE APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.
COMBS, JUDGE: Thomas Lightfoot appeals a summary judgment of the Fayette
Circuit Court dismissing his action for unlawful workplace discrimination brought
against his former employer, Forterra Concrete Industries, Inc., (Forterra
Concrete). While his notice of appeal also identifies Forterra Pipe & Precast, LLC,
and Forterra Pressure Pipe, Inc., as appellees, Lightfoot conceded before the trial court that these business entities were not his employers, and he agreed to a
dismissal of the action with respect to them. Consequently, we do not treat them as
parties on appeal. Moreover, we regard as a mere oversight Lightfoot’s
misidentification of Forterra Pipe & Precast as the only appellee on the cover of his
appellant’s brief and the erroneous naming of Forterra Pressure Pipe, Inc., as the
only appellee within the body of that brief. Finally, Lightfoot makes no claim of
error with respect to the appellee identified as “John Doe.” Consequently, we
make no further comment with respect to him.
On appeal, Lightfoot argues that the trial court erred by granting
summary judgment with respect to his claims of race discrimination, hostile work
environment, and unlawful retaliation. After our review, we affirm.
Lightfoot, an African-American man, was hired by Sherman-Dixie
Concrete Industries, Inc., (Sherman-Dixie), in June 2005. He was working as a
maintenance technician earning an hourly wage when he was promoted to plant
manager by Sherman-Dixie in June 2014. Lightfoot became a salaried
employee and held the position as plant manager for four to five months. After
that time, Bruce Stamper, plant manager at Sherman-Dixie’s Hermitage,
Tennessee, facility, transferred to the Lexington facility as plant manager.
Lightfoot accepted the title of assistant plant manager and continued to be paid a
salary rather than an hourly wage (as is typical for maintenance personnel).
-2- However, his focus returned to maintenance and training employees to operate the
production equipment.
At the time of his deposition, Stamper was working for Foley
Products as operations manager. However, he remembered that Sherman-Dixie’s
Lexington plant was in such bad shape when he arrived in Lexington that he
worked eighteen-hour days to sort out the production issues. Stamper indicated
that upon his arrival to the Lexington plant, Lightfoot explained to him that
Sherman-Dixie had not given him a fair opportunity to run the facility. Stamper
testified that Lightfoot “wasn’t giving me the full effort” because he (Lightfoot)
was embittered by the personnel decision. Stamper experienced a number of
performance issues with Lightfoot. He indicated that Lightfoot had been “pencil-
whipping some paperwork that things had been done when they really weren’t
done”; told a lie that cost the plant two and one-half days’ production and massive
expenses when he allowed cement to harden in a mixer; took an inordinate amount
of time to repair machines; failed to address safety issues on a timely basis; and
was so disorganized as to be ineffective at his job duties.
In January 2016, Sherman-Dixie was acquired by Forterra Concrete.
Several months later, Stamper was promoted to area operations manager. In
August 2016, Stamper promoted Casey Edmonson, a machine operator, to be
Lexington’s plant manager. Stamper continued to be in the Lexington facility at
-3- least two days per week, and he testified that once Edmonson was promoted,
Lightfoot’s work performance continued to deteriorate. Nevertheless, Lightfoot
retained the title of assistant plant manager and continued to be paid a salary. He
remained focused on maintenance and training employees.
In his deposition, Lightfoot testified that before Edmonson was
promoted to plant manager, he (Edmonson) “started being more, I guess,
argumentative towards me, refusing to listen to what I was asking him to do, and
just more confrontational.” Lightfoot also recalled that Edmonson made a “whip
sound” either on his cellphone or with his mouth to encourage people to get going.
He admitted that he had never heard the sound himself, but he had heard rumors.
He explained that he had discussed this with Stamper, saying, “you know, I didn’t
actually witness it and I can’t say something that I didn’t actually witness. I can’t
-- I mean, I don’t feel right just trying to add to something that I have no idea what
I am adding to.” He stated that fellow employees told him (Lightfoot) that they
had approached Edmonson to explain that they regarded the sound as racist.
Lightfoot could not recall whether Edmonson was still a machine operator or if he
was transitioning into management at the time this sound was made.
Lightfoot indicated that during the year following Edmonson’s
promotion, Edmonson’s “whole demeanor changed.” Lightfoot testified that
“there seemed like there was always incidents where I was getting blamed [by
-4- Edmonson] for things that was [sic] getting broken.” Lightfoot acknowledged that
he had been issued five written reprimands related to his work performance
between December 2016 and March 2017.
In May 2017, Lightfoot learned from a fellow employee that his
(Lightfoot’s) contact information in Edmonson’s personal cellphone was
designated by the “poop emoji”-- the ubiquitous swirl of chocolate, soft-serve ice
cream with large eyes and a wide smile often used in electronic communication to
designate bathroom topics, disappointment, or rejection. Lightfoot reported this
information to Stamper. When Stamper asked Lightfoot how he felt about it,
Lightfoot indicated that he was “very hurt, I feel very humiliated, and I feel like he
[Edmonson] was being racist.” When asked how the image was racist, Lightfoot
explained that “of all the black employees in here, [Edmonson] shows it to a white
employee and laughed about it.” Lightfoot told Stamper that he wanted
Edmonson terminated immediately because this behavior violated the company’s
code of conduct. Instead of termination, Edmonson was reprimanded by Stamper.
Edmonson removed the emoji from Lightfoot’s contact information and never used
it again. Lightfoot stated that Stamper also asked Edmonson to apologize but that
when Edmonson did so, it was a sarcastic apology.
Stephen Knotts became area operations manager for the region --
including Forterra Concrete’s Lexington plant on September 1, 2017. He left the
-5- company in December 2018. In his deposition, Knotts testified that “[i]t was
obvious when I first got here” that Lightfoot lacked the “ability to do the
maintenance” required at the plant. He explained that Lightfoot’s failure to turn
off the cement mixer for the weekend could have caused the complete loss of the
facility through a fire and that destruction of critical machine parts resulting from
his negligence had been costly to the company both in terms of their replacement
costs and an extended period of lost production. Knotts indicated that he and Tim
Jones, a senior operations manager, determined that a “complete lack of
maintenance” was the single impediment to the Lexington plant’s efficient
operation.
In his deposition, Lightfoot also described a heated encounter between
Edmonson and himself concerning Lightfoot’s inability to repair a machine.
Lightfoot admitted to Knotts that it was his (Lightfoot’s) fault that the machine was
down but stated to Knotts that “he [Edmonson] didn’t have no [sic] right to come
up in my face and point his finger at me.” Lightfoot reported that Edmonson
communicated through text with him thereafter and that they had no further verbal
disagreements. He adamantly denied that there had ever been any physical
violence between them.
Knotts explained that in October 2017, as Forterra Concrete was
transferring employees’ classification (job titles) from Sherman-Dixie to their own
-6- system, he realized that there was no classification for Lightfoot as a salaried
maintenance person. He confirmed to counsel that “there is typically not a salary
maintenance guy.” After he decided to convert Lightfoot to an hourly rate of pay,
he asked a resource manager in an email “have you run any numbers on what we
need to pay [Lightfoot] hourly compared to a salary?” It was confirmed that
Lightfoot’s earnings would increase substantially if he were re-classified as
“Machine Operator II” and even more substantially if he were re-classified as
“Maintenance I.” Knotts indicated to the resource manager that he did not “think
[Edmonson, the Lexington plant manager] wants him in Maintenance, so its sounds
like a Machine Operator II might be the best option.” He explained that machine
operators are expected to do some of the maintenance on the equipment they
operate and that “a position like this might be a good fit.”
Knotts stated in his deposition that he had a meeting with Lightfoot on
October 10, 2017, to explain to him that “we didn’t want him in maintenance and
we had a position we were wanting him to look at as a Machine Operator II.” He
asked Lightfoot to take a couple of days to consider the offer. According to
Knotts, Lightfoot “didn’t feel like that was a good step for him. He felt like he was
going backwards. Even though the money was going forwards.” Knotts indicated
that Lightfoot was reassigned to operating and maintaining a wire draw machine
and “still doing some light maintenance stuff that he could accomplish. . . .” By
-7- mid-November 2017, the company had decided to eliminate Lightfoot’s salaried
maintenance position. Lightfoot was terminated days later. Thereafter, a man of
color was hired in a classified, hourly-wage maintenance position with no
management responsibilities.
On June 25, 2018, Lightfoot filed a civil action against Forterra
Concrete alleging that he had been subjected to harassment, discrimination,
retaliation, and disparate treatment based on his race in violation of Kentucky law.
The circuit court granted summary judgment to Forterra Concrete. It concluded
that Lightfoot’s allegations concerning Edmonson’s use of the “poop emoji” and
his confrontational management style were insufficient to show unlawful
workplace discrimination or a hostile work environment and that there was no
evidence to support the allegation that Lightfoot suffered unlawful retaliation as a
result of his complaint regarding the “poop emoji.” The circuit court concluded
that Forterra Concrete was entitled to judgment as a matter of law. This appeal
followed.
Summary judgment is properly granted where “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
-8- law.” CR1 56.03. Upon our review, we must consider whether the trial court
correctly determined that there were no genuine issues of material fact concerning
Lightfoot’s civil rights claim and properly concluded that Forterra Concrete was
entitled to judgment as a matter of law. See Scifres v. Kraft, 916 S.W.2d 779 (Ky.
App. 1996). Because summary judgment involves only questions of law and not
the resolution of disputed material facts, we do not defer to the trial court’s
decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky.
1992). Instead, we review the trial court’s interpretations of law de novo.
Cumberland Valley Contrs., Inc. v. Bell County Coal Corp., 238 S.W.3d 644 (Ky.
2007).
The Kentucky Civil Rights Act makes it unlawful for an employer to
discharge (or otherwise discriminate against) an employee based on race. KRS2
344.040(1)(a). Because Lightfoot’s evidence is entirely circumstantial, the matter
requires analysis under the burden-shifting framework established by the United
States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Norton Healthcare, Inc. v. Disselkamp,
600 S.W.3d 696 (Ky. 2020); Jefferson County v. Zaring, 91 S.W.3d 583 (Ky.
2002). Pursuant to this approach, an employee must first establish a prima facie
1 Kentucky Rules of Civil Procedure. 2 Kentucky Revised Statutes.
-9- case of discrimination. Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492 (Ky.
2005). The employee must show that: (1) he was a member of a protected class;
(2) he was discharged or suffered an adverse employment action; (3) he was
qualified for the position; and (4) he was replaced by a person outside of the
protected class. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992).
Where an employee establishes this initial case by fulfilling these
criteria, a burden of production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. Id. If the employer
does so, the burden then shifts back to the employee to prove intentional
discrimination by showing that the employer’s articulated reason was merely a
pretext, masking its discriminatory motive. Id.
In his brief, Lightfoot identifies three types of adverse employment
action upon which he bases his argument that Forterra Concrete discriminated
against him because of race: (1) the multiple written reprimands prepared between
December 2016 and March 2017; (2) a “piling on” of tasks engineered to persuade
him to leave his job; and (3) his eventual termination. He presents the court with
little in the way of argument. Nevertheless, we comment on each of these three
claims.
Lightfoot, Edmonson, and Stamper offered extensive deposition
testimony concerning the numerous, written reprimands issued to Lightfoot
-10- between late December 2016 and mid-March 2017. Lightfoot was written up in
December 2016 for leaving a cement mixer operating unattended over a weekend.
In his deposition, he explained that he had simply forgotten that he had turned it
on. Lightfoot admitted that he had been written up again in February 2017 for
failing to adequately supervise a new operator -- resulting in the destruction of
critical machine parts and the loss of production. In his deposition, Lightfoot
admitted that he had made a mistake “because I should have went ahead and
double-checked.”
Lightfoot acknowledged that he had been written up again on March
15, 2017. In his deposition, he admitted that he had lied to Edmonson and Stamper
about his ability to continue to work on a machine critical to production. Lightfoot
conceded that he had been written up on March 16, 2017, for failing to inspect and
clean a cement silo bag that had been installed in January. In his deposition, he
admitted that he had not inspected or cleaned the equipment as directed and did not
think it was necessary as the equipment was new. Finally, Lightfoot conceded that
he had been written up on March 17, 2017, for failing to perform necessary
maintenance on a machine critical for production. In his deposition, he explained
that he had lacked the time and had forgotten to oil the machine per the
manufacturer’s recommendation.
-11- Lightfoot’s deposition testimony indicates that each of these written
reprimands was issued with good cause. The nature of the reprimands suggests
that Lightfoot was not qualified for his maintenance position with Forterra
Concrete. Consequently, he could not establish a prima facie case of
discrimination. Lightfoot’s acknowledgment with respect to the reprimands and
Forterra’s explanations with respect to his dismissal indicate that Forterra Concrete
had legitimate, nondiscriminatory reasons for the adverse employment
action. Id. Lightfoot did not offer any proof that Forterra Concrete’s articulated
reason was merely a pretext disguising a discriminatory motive. The circuit court
did not err by concluding that the employer was entitled to judgment as a matter of
law with respect to this claim.
Next, Lightfoot argues that he was unlawfully subjected to a piling on
of assignments designed to cause him to leave his position in maintenance. In his
deposition, Lightfoot explained that from late September forward, he experienced
“a lot of harassing things,” including “a magical list that I was supposed to try to
get done every day.” In his deposition testimony, Knotts indicated that within a
few weeks of onboarding with Forterra Concrete, he and Tim Jones decided that
“we had to -- to come up with a plan to get the maintenance up to snuff to get that
plant running like it is supposed to and being efficient.” In an effort to achieve that
goal, they consulted with a sister facility in Minnesota operating the same
-12- equipment. When they returned to Lexington, Knotts began to implement an
equipment maintenance schedule and protocol. While Lightfoot objected to this
schedule, there is absolutely no indication that Forterra Concrete’s decision to
adopt a maintenance protocol was anything other than legitimate and
nondiscriminatory business decision. There were no genuine issues of material
fact, and the circuit court ruled accordingly. We perceive no error.
Next, Lightfoot contends that his dismissal was unlawfully
discriminatory. Because Forterra Concrete offered a legitimate, nondiscriminatory
reason for Lightfoot’s discharge, the burden shifted back to Lightfoot to produce
sufficient evidence from which a jury could reasonably reject the employer’s
explanation and conclude that the articulated reason was merely a pretext.
As recounted above, the undisputed facts indicate that Lightfoot made
numerous maintenance errors that created safety risks, slowed production, and
caused Forterra Concrete to incur costs to correct. Lightfoot was not meeting his
employer’s legitimate expectations. The conduct legitimately warranted his
discharge. Moreover, he has failed to show that his termination was racially
motivated instead of the result of the elimination of the salaried maintenance
position as part of the ongoing reorganization of what was once Sherman-Dixie.
Consequently, Forterra Concrete was entitled to judgment as a matter of law.
-13- With respect to the separate allegation of error concerning his claim of
a hostile work environment, Lightfoot argues that the circuit court “intentionally
disregarded” the relevant circumstantial evidence he offered. He contends
specifically that the trial court “devalued” evidence concerning the “whip sound”
produced by Edmonson by observing that Lightfoot did not personally experience
the sound and only heard rumors about it. He argues that the circuit court failed to
consider that Edmonson had a volatile temper; that he told an employee that he
hoped that Lightfoot would die in a fiery crash; and that he was the subject of
complaints by other employees. He also points to “Forterra’s blatant refusal to
allow Lightfoot to file a formal complaint.”
Kentucky’s Civil Rights Act “is not intended to make all offensive
conduct actionable.” Gray v. Kenton County, 467 S.W.3d 801, 805 (Ky. App.
2014). In order to be actionable, the conduct must be “sufficiently severe or
pervasive” so as to create a truly “abusive working environment,” and the conduct
must be “continuous and concerted in order to be deemed pervasive.” Ammerman
v. Board of Educ. of Nicholas County, 30 S.W.3d 793, 798 (Ky. 2000).
Whether the harassment is severe and pervasive is determined by a totality of the circumstances test -- circumstances including frequency and severity of the conduct, whether the conduct is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s work performance.
-14- Gray, 467 S.W.3d at 805 (citation omitted). The harassment must be both
objectively and subjectively offensive. Harris v. Forklift Sys., Inc., 510 U.S. 17,
23, 114 S. Ct. 367, 371, 126 L. Ed. 2d 295 (1993). The circuit court did not err by
concluding that Lightfoot failed to establish a prima facie case with respect to this
claim.
Lightfoot failed to establish that he was subject to harassment based
on his race. By his own testimony, Lightfoot admitted that he could not remember
if the “whip sound” produced by Edmonson was made while he was a machine
operator -- a point at which Edmonson was Lightfoot’s subordinate and subject to
Lightfoot’s supervision -- rather than the other way round. Moreover, the evidence
indicated that the sound was used indiscriminately in the presence of both black
and white employees. Similarly, Edmonson’s tendency to lash out in frustration
when production slowed and his ugly comment hoping that Lightfoot would die
bore no indication that the conduct was necessarily related to Lightfoot’s race. Nor
was it pervasive or severe. Lightfoot may have been subjectively offended by
Edmonson’s comments or conduct. However, there was no indication that an
objectively reasonable person would be so unsettled as to suffer in his work
performance as a result.
With respect to the claims of two other employees alleging racial
discrimination, the circuit court observed that one of those had been filed by
-15- Jeremiah Mabson. While Mabson filed an internal complaint concerning
Edmonson’s conduct, he testified in his deposition that the complaint prompted a
management change at Forterra Concrete with which he was satisfied. The other
complaint was filed by Antonio Reed. Lightfoot himself testified that Reed’s
dismissal was not based on race. He indicated that Reed was terminated with good
reason and that he should have been fired long before he was. The circuit court did
not err by concluding that the complaints of Mabson and Reed were not helpful in
its analysis of Lightfoot’s discrimination claims.
Lightfoot also points to “Forterra’s blatant refusal to allow Lightfoot
to file a formal complaint.” In his deposition, Lightfoot conceded that he
understood from Forterra Concrete’s human resources team that there was a strict
code of conduct in place and that the company would not tolerate any kind of
abuse or disrespect toward employees. He understood that he could report
anything he regarded as abuse to his area operations manager. Lightfoot
specifically agreed that Stamper believed he had dealt with the “poop emoji” issue
to Lightfoot’s satisfaction and admitted that he did not lodge a more formal
complaint with the company concerning Stamper’s resolution of the matter. There
was no evidence to suggest that Forterra Concrete blatantly refused to permit
Lightfoot to file any complaint. Forterra Concrete was entitled to judgment as a
matter of law on this issue. There was no error.
-16- Finally, in his last allegation of error, Lightfoot argues with respect to
his claim of unlawful retaliation that the circuit court erred by requiring “temporal
proximity” between his report concerning the “poop emoji” and his termination
and by overlooking the fact that he complained to Knotts that Edmonson was still
picking on him by directing his maintenance tasks just weeks before he was
dismissed. We disagree.
KRS 344.280(1) makes it unlawful “[t]o retaliate or discriminate in
any manner against a person . . . because he has made a charge, filed a complaint,
testified, assisted, or participated in any manner in any investigation, proceeding,
or hearing under this chapter[.]” A prima facie case of retaliation requires an
employee to demonstrate that: (1) he engaged in protected activity; (2) the
exercise of his rights was known by this employer; (3) that, thereafter, the
employer took employment action adverse to him; and (4) there was a causal
connection between the protected activity and the adverse employment
action. Brooks v. Lexington-Fayette County Housing Authority, 132 S.W.3d 790
(Ky. 2004).
In cases where there is no direct evidence of a causal connection, the
causal connection of a prima facie case of retaliation must be established through
circumstantial evidence. Id. (citing Nguyen v. City of Cleveland, 229 F.3d 559 (6th
Cir. 2000)). Circumstantial evidence of a causal connection is “evidence sufficient
-17- to raise the inference that [the] protected activity was the likely reason for the
adverse action.” Nguyen, 229 F.3d at 566 (internal quotation marks and citation
omitted). In most cases, proof is required that: (1) the decision maker responsible
for making the adverse decision was aware of the protected activity at the time that
the adverse decision was made and (2) there is a close temporal relationship
between the protected activity and the adverse action. Brooks, 132 S.W.3d at 804.
The burden then shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the employment action. The employee must then show that “but for”
the protected activity, the adverse employment action would not have
occurred. Kentucky Center for the Arts v. Handley, 827 S.W.2d 697, 701 (Ky.
App. 1991); Asbury Univ. v. Powell, 486 S.W.3d 246, 254 (Ky. 2016).
The circuit court did not err by concluding that Lightfoot failed to
make a prima facie case of unlawful retaliation because he failed to establish a
causal link between his report concerning Edmonson’s use of a “poop emoji” and
his subsequent dismissal. Lightfoot failed to establish a causal connection due -- in
part -- to the passage of time between the complaint and his dismissal. The
Kentucky Supreme Court has held that four months between the protected activity
and an adverse employment action was “too long to create, by itself, an inference
of causality.” Brooks, 132 S.W.3d at 804.
-18- The record indicates that Lightfoot made his complaint about
Edmonson’s use of the “poop emoji” in early May 2017; he was dismissed in
November 2017. Moreover, Knotts testified that the salaried maintenance position
was eliminated as part of corporate reorganization. The fact that Forterra Concrete
subsequently hired an hourly wage maintenance worker with no managerial role is
immaterial to the analysis. Even considering Lightfoot’s brief conversation with
Knotts several weeks before his dismissal (wherein he explained that Edmonson
“was still just finding ways to pick on me, telling Jason Elder what I am not doing
that I am supposed to be doing. . . . You know, it’s not getting any better.”),
Lightfoot failed to counter the alternative, non-retaliatory purpose for the action as
explained by Forterra Concrete. Consequently, the circuit court did not err by
concluding that Lightfoot failed to show that “but for” his complaint, he would not
have been dismissed.
Finally, with respect to the fourth criterion of the burden-shifting
analysis under McDonnell Douglas, supra, and its progeny, we note that Lightfoot
was not replaced by a person outside of his protected class. On the contrary, he
was replaced by a man of color according to the record, wholly negating this
statutory factor.
The summary judgment of the Fayette Circuit Court is affirmed.
-19- ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Kamp Townsend Purdy Stephen H. Price Lexington, Kentucky Brian C. Neal Nashville, Tennessee
-20-