FLOCK (JOSEPH E.) VS. BROWN-FORMAN CORPORATION
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RENDERED: JULY 2, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001184-MR
JOSEPH E. FLOCK
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 06-CI-003668
BROWN-FORMAN CORPORATION
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND WINE, JUDGES.
WINE, JUDGE: Joseph E. Flock appeals from a summary judgment by the
Jefferson Circuit Court which dismissed his employment discrimination and
retaliation claims against Brown-Forman Corporation (“Brown-Forman”). He
argues that he presented sufficient evidence to raise genuine issues of material fact
that Brown-Forman discriminated against him based on his age and gender, and
that it retaliated against him after he filed these claims. We disagree with the trial
court that Flock failed to establish a prima facie case on his age discrimination
claim. However, we agree with the trial court that Flock failed to present sufficient
evidence to rebut Brown-Forman’s stated reasons for demoting him. We further
agree with the trial court that Flock failed to establish prima facie cases for his
gender discrimination and retaliation claims. Hence, we affirm the trial court’s
summary judgment dismissing Flock’s claims.
Facts and Procedural History
Flock began working for Brown-Forman in 1969. Over the course of
his career, he held several different positions and eventually achieved the title of
Vice President of the Vista Markets Division. In that position, Flock oversaw
Brown-Forman’s sales in the Latin American and Caribbean markets, which
included Puerto Rico. His supervisor was Donald Berg. Flock was fifty-seven
years old in 2005.
In May of 2005, Berg’s assistant, Becky Maier, received $485,000
worth of invoices from Puerto Rico. All of the invoices pre-dated April 31, 2005,
the end of the company’s fiscal year. Maier determined that $313,000 of the
invoices were attributable to broker commissions. This left $172,000 which was
incorrectly classified. In passing, Maier asked Flock how she should account for
the $172,000. Flock replied that Maier should classify the amount as cost of goods
sold in order to avoid a budget overrun. Flock admits that this advice was
improper. However, Berg had previously criticized him for cost overruns in the
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Vista Markets division, and Flock stated that he wanted to avoid another
confrontation over the issue.
Subsequently, the division controller, Lynn Wilkerson, made an
official accounting entry correctly listing the $172,000 as attributable to broker
commissions/special promotions. Wilkerson later changed the entry so that it
inaccurately reflected the amount was for cost of goods sold. Wilkerson stated that
she made this change at Maier’s direction, but she did not know of Flock’s
involvement. Both Maier and Wilkerson admitted that they knew the classification
was wrong at the time it was made.
The misclassification came to light in October 2005. Following an
investigation, Brown-Forman concluded that Flock, Maier, and Wilkerson had
each violated a provision of the company’s code of conduct which prohibits the
recording of false or misleading entries in accounting records. Flock was demoted
to Director of Wine and Spirits Pricing for the Americas. In addition, BrownForman lowered his pay grade two levels, lowered his bonus grade one level, and
gave him an “achieves most” rating on his yearly evaluation. Flock’s former
position was split into two new jobs after his demotion. Marshall Farrar took one
of the new positions and Patrick Moran took the other.
Flock took issue with the punishment meted out by Brown-Forman.
He noted that his role in the misclassification was limited to one instance of giving
incorrect advice to Maier. He also noted that he had no direct role in making the
accounting entries and was not a direct supervisor of either Maier or Wilkerson. In
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contrast, he noted that Maier and particularly Wilkerson were directly involved in
the misclassification, but received lesser punishments. He also reported other prior
examples of infractions of the company’s code of conduct which were not
investigated or punished. Brown-Forman took the position that Flock’s
punishment should be more severe since he was in a higher position of authority
and his actions implicated the company in a violation of the Sarbanes-Oxley Act.
The company also rejected Flock’s allegations of other misconduct, stating that
Flock’s examples could not be substantiated, did not rise to a conduct-code
violation, or had been previously resolved.
Flock filed a complaint against Brown-Forman on April 25, 2006,
alleging age discrimination, reverse-gender discrimination, and retaliation. Flock
continued to work for Brown-Forman until the end of 2008. He complains that,
after he filed the complaint, Brown-Forman marginalized him, arbitrarily removed
duties from his position, subjected him to greater supervisory scrutiny, and that
other Brown-Forman employees did not support him in his position.
Following an extended period of discovery, Brown-Forman filed a
motion for summary judgment on Flock's claims. After considering the record and
the briefs and arguments of counsel, the trial court granted Brown-Forman's
motion on April 14, 2009. Thereafter, Flock filed a motion to reconsider,
Kentucky Rule(s) of Civil Procedure (“CR”) 59.05, which the trial court denied on
June 4, 2009. This appeal followed.
Summary Judgment Standard
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Flock argues that the trial court erred by dismissing his claims for age
discrimination, gender discrimination, and retaliation. We review the trial court’s
order under the well-settled standard of review governing appeals from a summary
judgment. Summary judgment may 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 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 Service Center, 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 review, the appellate
court must determine “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.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.
1996).
Age Discrimination Claim
With respect to the age discrimination claim, Kentucky Revised
Statute(s) (“KRS”) 344.040(1) provides that it is unlawful for an employer to
discharge or otherwise discriminate against an individual because that individual is
forty years of age or older. In the absence of direct evidence of discriminatory
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motivation, a plaintiff claiming age discrimination with respect to an employment
decision must satisfy the burden-shifting test set forth by the United States
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L. Ed. 2d 668 (1973). Williams v. Wal-Mart Stores, Inc., 184 S.W.3d
492, 495 (Ky. 2005). The 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 he was discharged; and
(4) received disparate treatment from a similarly situated younger person or was
replaced by a significantly younger person. Id. at 496. Under the McDonnell
Douglas framework, a plaintiff is not required to introduce direct evidence of
discrimination. Kline v. Tennessee Valley Authority, 128 F.3d 337, 349 (6th Cir.
1997); Williams, supra at 496.
The trial court found that Flock failed to prove the fourth element of
his prima facie case – that he was treated differently than a similarly situated
employee from outside the protected class. As a point of comparison, Flock
referred to Brown-Forman’s treatment of John Wittig, a forty-year-old Vice
President of the company’s Atlantic Division, whom he accuses of misclassifying
expenses. The trial court found that Flock had failed to substantiate his claim that
Wittig was treated more leniently for an infraction which was similar to his
infraction. The trial court also found that Flock had failed to substantiate his
accusation that Brown-Forman had failed to investigate other employee
misconduct.
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We agree. As the trial court noted, Flock fails to specifically set out
how Wittig misclassified financial information or even the details of Wittig’s
alleged misconduct. Likewise, Flock presents examples of other alleged
misconduct by Brown-Forman employees, but he fails to substantiate these claims
or set out how those situations were comparable to his circumstances.
However, Flock can also meet his prima facie case by showing that he
was replaced by a younger employee. After his demotion, Flock’s duties were
divided between two employees: thirty-nine-year-old Marshall Farrar and Patrick
Moran. The trial court found that Flock was not replaced since his duties were
merely reallocated to different individuals. Citing Grosjean v. First Energy Corp.,
349 F.3d 332, 336 (6th Cir. 2003).
We do not find this rule applicable in this case. As an initial matter,
the rule generally applies in cases where the termination was due to a work-force
reduction. See Barnes v. GenCorp, Inc., 896 F.2d 1457 (6th Cir. 1990), and Sahadi
v. Reynolds Chemical, 636 F.2d 1116 (6th Cir. 1980). The Sixth Circuit has applied
the rule in Grosjean v. First Energy Corp., supra, to a disciplinary demotion.
However, the facts of that case were significantly different from those in the
present case.
In Grosjean, the plaintiff had been trained by an experienced yard
supervisor, John Gallagher. Thereafter, Grosjean shared supervisory duties with
Gallagher. After the demotion, Gallagher took on Grosjean’s duties in addition to
his own. The Sixth Circuit emphasized that a “person is not replaced when another
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employee is assigned to perform the plaintiff's duties in addition to other duties, or
when the work is redistributed among other existing employees already performing
related work. A person is replaced only when another employee is hired or
reassigned to perform the plaintiff's duties.” Id. at 336 (citations omitted). Under
these circumstances, the court found that Grosjean was not replaced by Gallagher.
Id. However, Grosjean’s position was later filled by another employee, Richard
Riley. In this respect, the Sixth Circuit concluded that “Grosjean was replaced, in
both the colloquial and the legal meanings of that term, by Riley." Id. See also
Williams, supra at 496-97, noting that the permanent replacement, not the
temporary replacement, was the relevant replacement for purposes of plaintiff's age
discrimination claim.
Thus, the focus of the rule is not simply whether Flock was replaced
by existing employees, but that his duties were redistributed among existing
employees who already perform similar work. Flock's responsibilities for dutyfree sales in the Latin American and Caribbean markets were transferred to Patrick
Moran in Brown-Forman's Atlantic Division. To this extent, it may be argued that
these duties were merely reallocated to another division which already performed
similar work.1
However, Flock's other duties with respect to Vista Markets were
allocated to a position that was filled by Marshall Ferrar. While Berg equivocated
about whether Ferrar was "promoted" into the new position, there is no indication
1
In addition, the record does not indicate whether Moran was significantly younger than Flock.
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in the record that Ferrar was already performing similar duties to those which he
assumed when he took over Vista Markets. It is agreed that Ferrar is significantly
younger than Flock. Under these circumstances, we conclude that Flock has
established a prima facie case of age discrimination.
But while the trial court incorrectly found that Flock had failed to
establish a prima facie case of age discrimination, it went on to address the
remaining elements of the McDonnell Douglas test. Once a plaintiff makes a
prima facie case under this test, the burden then shifts to the employer to articulate
a legitimate, nondiscriminatory reason for the termination. McDonnell Douglas,
411 U.S. at 802, 93 S. Ct. at 1824. Brown-Forman has clearly met this burden by
establishing that it demoted Flock due to his involvement in the misclassification
of expenses in 2005. Flock concedes that his actions amounted to misconduct
under Brown-Forman’s code of conduct.
Since Brown-Forman has articulated a legitimate reason for its
employment decision, the ultimate burden shifts back to Flock to show that the
explanation is merely pretextual and that the decision was actually motivated by
age discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). A plaintiff must present “cold hard
facts creating an inference showing age discrimination was a determining factor”
in his discharge. Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226, 229
(Ky. 1984). A plaintiff may meet this burden by direct evidence, or by
circumstantial evidence showing that (1) the proffered reasons for the employment
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decision are false; (2) the proffered reasons did not actually motivate the decision;
or (3) the reasons given were insufficient to motivate the decision. Williams,
supra at 497.
While Flock concedes that the misclassification of expenses was an
error of judgment, he points to a number of factors to suggest that Brown-Forman
had improper ulterior motives in its decision to demote him. Flock contends that
his role in the misclassification was minor. He had no direct responsibilities for
making accounting entries and was merely offering a suggestion when asked by
Maier. Maier and Wilkerson, in contrast, had significant roles in the
misclassification. Maier specifically directed Wilkerson to change the account
entry to cost of goods sold. Flock was not involved in any of these actions other
than the initial suggestion. However, Flock notes that he was punished more
severely than either Maier or Wilkerson.
Furthermore, Flock contends that the decision makers at BrownForman had decided to punish him before they completed their investigation. In
addition, Brown-Forman’s executives repeatedly accused him of directing the
misclassification. However, Flock notes that during the litigation Brown-Forman
altered its position, admitting that Flock had merely “advised” Maier to misclassify
the expenses. Given the disproportionate punishment and Brown-Forman’s
conflicting reasons for the demotion, Flock contends that a fact-finder could
reasonably believe that Brown-Forman’s stated reasons were false.
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Finally, Flock also points to various statements by the decision
makers at Brown-Forman which suggest that Flock’s age was a motive in the
discrimination. Prior to the expense mischaracterization incident, Berg had
commented that Flock had “a natural Brown-Forman tendency toward
conservatism.” After the expense mischaracterization incident, Jackie Strange, a
Brown-Forman attorney, and Lisa Steiner, the Human Resources Director, both
advocated for Flock’s termination. Strange testified that Steiner had been on a
“path” against the “good old boys network.” Strange also stated that Steiner
wanted to demonstrate that senior executives who were involved in financial
misconduct would no longer be treated leniently. Similarly, Brown-Forman’s
General Counsel, Michael Crutcher, castigated Flock for his mistake, saying, “This
is a new world – past practices of twenty-five years ago [are] no longer tolerated.”
Crutcher also advocated for Flock’s termination.
When taken together, Flock contends that these facts raise an
inference that age discrimination was at least part of Brown-Forman’s motive for
the severity of his punishment. We disagree. Flock cannot prevail on his
discrimination claim merely questioning the soundness of Brown-Forman’s
business judgment or practices. Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).
Even if Brown-Forman rushed to judgment about Flock’s culpability or if his
punishment was unfair, Flock must show that his age was a motivating factor in the
demotion.
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We agree with the trial court that the record does not support such an
inference. Flock suggests that Berg disliked him personally, but there is no
evidence that any such antipathy or dislike was motivated by Flock’s age.
Although Brown-Forman has somewhat changed its terminology in describing
Flock’s alleged misconduct, the change is mostly semantic rather than substantive.
Furthermore, the comments by the decision makers at Brown-Forman do not
suggest a discriminatory motive. Rather, they only suggest a view that senior
executives should be held to a higher standard than lower-level employees.2
Finally, Brown-Forman correctly notes that most of the individuals involved in the
decision were in the same age group as Flock. Given the absence of any credible
evidence supporting an inference that Flock’s age was a motivating factor in his
demotion, the trial court properly granted summary judgment on the age
discrimination claim.
Gender Discrimination Claim
In order for Flock to establish a prima facie case for reverse-gender
discrimination, he must show background circumstances which support the
suspicion that Brown-Forman is an unusual employer who discriminates against
men, and that he was treated differently than employees who were similarly
situated but outside of the protected group. Briggs v. Potter, 463 F.3d 507, 517 (6th
Cir. 2006). The trial court found that Flock had failed to prove either of these
elements. We agree.
2
The trial court also suggested that the alleged comment by Steiner was inadmissible as hearsay.
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On the first prong, the court found that Flock did not prove that
Brown-Forman is an employer who discriminates against men (a departure from
the norm in such cases where gender discrimination usually targets women). The
court noted that the majority of the senior management and those who made the
decision to demote him were men. Furthermore, we agree with Brown-Forman
that Maier and Wilkerson are not similarly situated to Flock. They were in lower
salary grades and, unlike Flock, were not part of senior management. Although
Flock may disagree with the severity of his punishment compared to that received
by Maier and Wilkerson, he cannot show that he was punished more severely
because he is male. Therefore, the trial court properly dismissed his gender
discrimination claim.
Retaliation Claim
Finally, Flock contends that Brown-Forman retaliated against him
after he filed his discrimination claims in violation of KRS 344.280. A prima facie
case for retaliation requires a plaintiff to demonstrate that (1) he engaged in
protected activity; (2) that the exercise of his civil rights was known by the
defendant; (3) that, thereafter, the defendant took an employment action adverse to
the plaintiff; and (4) that there was a causal connection between the protected
activity and the adverse employment action. Brooks v. Lexington-Fayette Urban
County Housing Authority, 132 S.W.3d 790, 803 (Ky. 2004). While the trial court
agreed that Flock had met the first two elements of his prima facie case, it
determined that Flock had failed to prove that there was a substantial connection
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between his filing of the discrimination claim and any adverse action. The court
found that most of the adverse consequences which Flock suffered were the result
of his demotion and not from the exercise of his right to file a discrimination
complaint. The court also found that Flock’s other complaints of retaliation
amounted to minor indignities and were not actionable.
Flock argues that he presented significant evidence showing that
Brown-Forman retaliated against him because he filed his discrimination claims.
He points to a comment in late 2005, when Crutcher told him that Brown-Forman
would “beat his ass in court” if Flock filed a discrimination claim. Flock further
maintains that the Brown-Forman executives “set him up to fail” in his new
position. After his demotion, Flock’s position in Global Spirits pricing involved
suggesting various pricing strategies to senior Brown-Forman managers. Flock
contends that his new supervisors refused to meet with him to discuss pricing
strategies and arbitrarily limited his authority to work with other Brown-Forman
managers. He also alleges that his supervisors refused to timely complete his
performance evaluations, and that they essentially “hijacked” his job after August
2006, leaving him only menial duties such as training junior employees, tracking
prices, and working with lower-level field employees. Finally, he notes that his
supervisor, McCauley Brown, told him in 2008 that no one at Brown-Forman
wanted to work with him because of the lawsuit.
Brown-Forman disputes most of Flock’s claims of unfair treatment. It
notes that Flock received a “Fully Achieves” performance rating on his 2007
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evaluation, as well as a pay raise. While Flock’s duties changed several times after
his demotions, Brown-Forman notes that it underwent a company-wide
reorganization during this period. Brown-Forman also points out that Flock’s
duties frequently changed during his entire tenure with the company.
We agree with the trial court that most of the adverse consequences
which Flock suffered were the result of his demotion in December 2005. We
further agree with the trial court that Flock has failed to show that any subsequent
actions were related to the filing of his discrimination claims or that they amounted
to a materially adverse employment action. Brooks, supra at 803. At most,
Brown’s comments and subsequent e-mail to Flock merely demonstrate that some
of Flock’s coworkers may have been concerned about becoming involved in
Flock’s litigation. The comments do not demonstrate any organized effort by
Brown-Forman to undermine or ostracize Flock. Under these circumstances, we
conclude that the trial court properly granted summary judgment on the retaliation
claim.
In conclusion, Flock failed to present sufficient evidence to support
actionable claims for age discrimination, reverse-gender discrimination or
retaliation. Although Flock arguably presented a prima facie case for age
discrimination, he failed to present sufficient evidence to rebut Brown-Forman’s
legitimate, nondiscriminatory reason for demoting him. Flock admits that he gave
improper advice about characterizing the expenses from the Puerto Rico market.
While his role in the incident may have been minor, Brown-Forman presented a
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legitimate reason for punishing him more severely than the lower-level employees
who were also involved. Given the absence of any evidence that this decision was
motivated by Flock’s age, Flock may not prevail merely by questioning the
soundness of Brown-Forman’s business judgment on this matter.
Likewise, Flock failed to show that he was similarly situated to the
two women involved in the expense-mischaracterization incident. Without
evidence that Brown-Forman is the unusual employer that favors women over
men, he cannot prevail on his reverse-gender discrimination claim. Finally, Flock
failed to present sufficient evidence showing that Brown Forman subjected him to
materially adverse employment actions because he filed his discrimination claims.
Therefore, he failed to establish a prima facie case of retaliation.
Accordingly, the judgment of the Jefferson Circuit Court is affirmed.
ACREE, JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS IN PART BY SEPARATE OPINION.
COMBS, JUDGE, DISSENTING IN PART. I dissent solely as to the
retaliation claim. I would reverse entry of summary judgment on this issue and
order that it proceed to trial. There is more than ample evidence that Mr. Flock
was treated in a retaliatory fashion because he exercised his legitimate right to file
this lawsuit. Regardless of the merits of the underlying suit, the act of retaliation
remains an actionable and viable claim. Summary judgment inappropriately
disposed of this cause of action.
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BRIEFS AND ORAL ARGUMENT
FOR APPELLANT:
BRIEF AND ORAL ARGUMENT
FOR APPELLEE:
Philip C. Kimball
Samuel G. Hayward
Louisville, Kentucky
Charles J. Cronan, IV
Shannon Antle Hamilton
Karen M. Paulin
Louisville, Kentucky
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