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Discrimination: Optical company finds prescription for success in employee's lawsuit

Kentucky Employment Law Letter, Vol. 20, No. 12
September 2010

Sometimes an employee will file a lawsuit containing a collection of claims seeming to include everything but the kitchen sink. When one of these “kitchen sink” lawsuits is filed, it’s normal to be discouraged and fear that the litigation will be long and difficult. But as a recent case decided by the Sixth U.S. Circuit Court of Appeals (which covers Kentucky) shows, that’s not always true. Despite claims of hostile work environment, sexual harassment, unequal pay, gender discrimination, disability discrimination, and wrongful termination based on age, gender, and disability, the employer was able to convince both the trial court and the Sixth Circuit that none of the claims had enough merit to proceed to trial. How did the employer do it? Read on to find out. 


D.O.C. Optics provides eye tests and sells prescription eyewear to the public. In 2003, it hired Michaline Neview to manage one of its stores. Part of her responsibilities as manager was to “possess excellent customer service and communication skills.” She managed the store for about three years. 

At the beginning of 2006, Neview began acting strangely. Several employees filed anonymous complaints against her alleging that she had made degrading remarks to her subordinates while on the sales floor and that they feared what she might do. She was suspended for four days on January 20 after she began crying loudly at the front desk and stating that she’d like to hurt someone. Following the suspension, she was fired. 

Neview then filed for workers’ compensation benefits, claiming she was unable to work because of various emotional disabilities she had developed while working for D.O.C. Additionally, she filed a charge with the Equal Employment Opportunity Commission asserting age, gender, and disability discrimination. After receiving a right-to-sue letter, she filed a lawsuit in federal district court alleging unequal pay, wrongful termination based on her age, gender, and disability (which allegedly was emotional and psychological in nature), and harassment and discrimination on the basis of her gender.

Regarding her sexual harassment claim, Neview alleged that she had been exposed to a sexually hostile work environment over the course of a month-long period. She cited the conduct of two male subordinate employees. The first, William Baird, had been arrested for having a sexual relationship with a minor. According to Neview, he raised the topic at least five times over the course of a month. However, she admitted that she’d asked him about his arrest, which prompted him to discuss the incident. She recommended that Baird be terminated for his actions and, acting as manager, reprimanded him three times (twice orally and once in writing). Nevertheless, he wasn’t terminated, and Neview didn’t complain to her superiors that she had been sexually harassed. She even admitted feeling sorry for him. 

Mike Flynn was the subject of Neview’s second complaint. She alleged that at various times he (1) told her she had “booby ash” (after coming back from a smoke break) and (2) showed her a letter from his wife indicating an open sexual proclivity. With regard to Baird’s arrest, he said he believed the underage minor’s father had “whored her out.” 

D.O.C. requested that the district court dismiss Neview’s case without a trial, and the court complied, concluding that she hadn’t presented enough evidence for the case to go to a jury, and Neview appealed to the Sixth Circuit. 

Sixth Circuit’s decision 

The Sixth Circuit first addressed Neview’s hostile work environment/sexual harassment claim. To succeed on her claim, she had to show: 

  1. she is a member of a protected class; 
  2. she was exposed to conduct or communications based on her protected class (female); 
  3. the conduct or communications she was exposed to were unwelcome or unwanted; 
  4. the conduct created or was intended to create an intimidating or hostile work environment; and 
  5. the individuals creating the hostile atmosphere were acting in the course of their employment.

The court noted that an employer cannot be liable for sexual harassment if it never received notice of the harassment. 

The court concluded that Neview couldn’t support her claim of sexual harassment because D.O.C. had no notice that the harassment was taking place. There was no evidence that she had ever notified her supervisor of the alleged misconduct. Even though she had informed the district manager of Baird’s arrest, she never communicated her concerns of harassment to him. And even though she warned Flynn about his conduct three times, she didn’t fire him or complain to her superiors that she was being sexually harassed. The court concluded that she couldn’t possibly present evidence supporting her hostile work environment allegation because D.O.C. clearly didn’t have notice of the alleged harassment. 

The court next addressed Neview’s sex discrimination claim, explaining that she would have to show that: 

  1. she is a member of a protected class; 
  2. she was subject to an adverse employment decision; 
  3. she was qualified for her position at the time of the adverse action; and 
  4. a similarly situated employee in an unprotected class was treated more favorably or she was replaced with someone who was not a member of the protected class.

Neview had argued to the district court that there was a pay disparity between her and her male counterparts and that Baird was a comparable employee who was retained by D.O.C. The Sixth Circuit agreed with the district court that Neview couldn’t rebut D.O.C.’s defenses to her claim of pay disparity, and in any event, Baird wasn’t similarly situated to her. On appeal, Neview asserted a new argument: Another employee was granted leave and allowed to return to work while her request for leave “for excessive stress” was denied. The Sixth Circuit dismissed that argument because she hadn’t raised it at the trial court level, nor had she identified the gender of the other employee. 

The Sixth Circuit also upheld the trial court’s dismissal of Neview’s wrongful termination claim under the Americans with Disabilities Act. To succeed on that claim, she had to establish that: 

  1. she was disabled within the meaning of the Act; 
  2. she was qualified for the position with or without reasonable accommodation; 
  3. she suffered an adverse employment decision; 
  4. D.O.C. knew or should have known of her disabilities; and 
  5. the position remained open while D.O.C. looked for someone to replace her.

The court found that Neview failed to meet the burden of proving that she was qualified for her position. It noted the fact that in both her deposition and at her workers’ comp hearing she stated she was no longer capable of “working as a D.O.C. store manager, or in any job whatsoever.” 

Finally, the Sixth Circuit addressed Neview’s claim that her termination was motivated by age and/or gender discrimination. Assuming for the sake of argument that she could establish a preliminary showing of discrimination, the court skipped to the question of whether she could show that D.O.C.’s stated reason for her termination — her conduct and inappropriate interaction with customers — was merely pretext for unlawful discrimination. 

Neview argued that D.O.C. relied on coworkers’ statements about her conduct that were not credible. However, the Sixth Circuit noted there was no proof that D.O.C. doubted the credibility of the witnesses, nor was there any indication that the reports were motivated by Neview’s age or gender. Neview v. D.O.C. Optics Corp., 2010 U.S. App. LEXIS 13083 (6th Cir., June 25, 2010). 

Bottom line 

While a terminated employee may believe that the best thing she can do is file a “kitchen sink” lawsuit with the hope that the court will be inclined to rule in her favor on at least one of her claims, in fact, exactly the opposite may occur. The one claim that might be successful on its own merit may simply be disregarded when surrounded by a hodgepodge of meritless claims. 

Even a “kitchen sink” lawsuit can be successfully defended by demonstrating that the employee has no credible evidence to support any of her claims. In this case, D.O.C. was faced with numerous allegations of wrongdoing under multiple theories, but it peeled back the layers one by one to expose the lack of merit of every one. If your company becomes the target of one of these lawsuits, don’t automatically assume that the case can’t be resolved early on without going to trial. As D.O.C. found out, sometimes the “kitchen sink” lawsuit meets the court’s disposal. ✤

If you have any questions or need help, please contact any member of the Greenebaum Doll & McDonald Labor and Employment Department.

Copyright 2010 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law.  Questions about individual problems should be addressed to the employment law attorney of your choice.

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