CHARLES SIMPSON, District Judge
This matter is before the court on motion of the defendant, BellSouth Corporation, for summary judgment in this action brought under the Kentucky Civil Rights Act, KRS 344.410, et seq., alleging discrimination on the basis of race. This action was removed from the Jefferson County, Kentucky, Circuit Court under our diversity jurisdiction.
A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress Co., 398 U.S. 144, 151-60, 90 S. Ct. 1598, 16 L. Ed. 2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962). We find that no genuine issue of material fact exists and that the BellSouth is entitled to judgment as a matter of law.
The plaintiff, Joseph S. Mudd, worked for BellSouth as an Electronic Technician for over thirty years. Mudd testified that he had a good working relationship with his supervisors and never had any problems prior to an incident which occurred in late 1998. Mudd retired on March, 2001 with full retirement benefits from BellSouth for thirty years of service. He was eligible, at that time, to draw social security benefits as well.
In late 1998, Gerald Dettlinger, Mudd's co-worker, brought a scarf depicting a confederate flag, among other symbols, to the office and displayed the scarf in his work area. A black co-worker named Deborah Hamby was offended by the item as she viewed the confederate flag as a racist symbol. She complained to management about it. Dettlinger's supervisor told him that Hamby had complained. Dettlinger voluntarily removed the scarf and stated that he had no intention to offend anyone. Dettlinger's supervisor apparently believed that Dettlinger had not intended harm, as there was no disciplinary action taken against him. Mudd does not disagree with the conclusion that Dettlinger did not intend offense, nor does he take issue with the lack of disciplinary action.
In October of 1998 after the scarf incident, Mudd clipped a newspaper article containing a picture of George Wallace blocking a school house door in Alabama, wrote either "My Hero" or "The Great One" next to the picture, and drew an arrow pointing to Wallace. He pinned the clipping to the bulletin board behind Dettlinger's desk. Hamby became very upset upon seeing the clipping and accused Dettlinger of posting it. Dettlinger was so distressed over the accusation and the ensuing investigation that a supervisor had to drive him home. He remained off work and under a doctor's care for approximately two weeks.
An investigation immediately ensued concerning the incident and Dettlinger's fitness for duty. Mudd was interviewed, as were other co-workers and supervisors. On November 2, 1998, a few days after the incident, Mudd gave a statement concerning Dettlinger and his interaction with his co-workers. He did not volunteer the fact that he rather than Dettlinger had posted the Wallace picture. It was not until November 23, 1998 in a second interview that he admitted to being responsible for the incident. BellSouth suspended Mudd for two weeks. Mudd's actions were viewed by BellSouth as intentionally designed to cause a conflict between Hamby and Dettlinger, in light of the information gleaned from other employees that there was conflict between Mudd, Dettlinger and Hamby. BellSouth management concluded that the picture with the handwritten caption was plainly racially offensive. Mudd filed a grievance over the suspension, and it was reduced to one week.
Less than a year after his suspension, Mudd applied for a lateral transfer to Carrollton, Kentucky. His transfer was denied. It was the long-time practice of BellSouth to decline transfer requests to employees who had recently been suspended for misconduct. Mudd acknowledged that, "normally speaking, you would say that a person does not get a transfer if you get a suspension." Mudd depo., pg. 109. Mudd has not come forward with evidence to controvert the testimony concerning this policy and its application to all BellSouth employees.
Mudd contends that in early 1998 he was placed on the 4:00 to midnight shift ("second shift") because of his race. He speculates that the transfer of Jarvis White, a white employee with less seniority than Mudd, to another location six months prior to the second shift assignments was a calculated maneuver to render Mudd a junior employee at the location and thus relegate him to the second shift assignment. Mudd, Hamby, and Dettlinger were the three junior employees who were assigned to the second shift after no one volunteered for the assignment. Mudd and Hamby are black, and Dettlinger is white. Jarvis White was also assigned second shift responsibilities in 2000.
In March of 1999, Mudd filed a charge with the EEOC alleging race and age discrimination in the disciplinary action taken against him and in the refusal of his request for transfer. Mudd was issued a right to sue letter concerning his charges, but he did not file a civil action in this court within the applicable limitations period.
Mudd filed this action in the Jefferson County, Kentucky, Circuit Court alleging disparate treatment and constructive discharge under the Kentucky Civil Rights Act. The action was removed to this Court by BellSouth.
Mudd contends that he was constructively discharged because he retired approximately two years earlier than he had wanted to. He retired with thirty years of service and full benefits. He contends that he was under stress due to being required to work the second shift and he felt that if he did not retire, management would find a way to force him out and impact his retirement. He claimed that BellSouth was making it difficult for him to do his job and was having him followed.
The Kentucky Civil Rights Act ("KCRA") embodies the policies contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Gibson v. The Finish Line, 261 F.Supp2d 785 (W.D.Ky. 2003). Therefore, Kentucky courts look to interpretive federal court decision for guidance in applying the KCRA. See, Kentucky Commission on Human Rights v. Commonwealth, 586 S.W.2d 270 (Ky.App. 1979). The same elements required to be proved under Title VII to establish a prima facie case of discrimination apply to a claimed violation of the KCRA. See, Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241 (6th Cir. 1995), citing, Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226 (Ky. 1984).
Mudd has not come forward with direct evidence of race discrimination. In order to establish a prima facie case of disparate treatment, Mudd must come forward with evidence that (1) he was a member of a protected class, and (2) for the same or similar conduct he was treated differently from similarly situated employees who were not members of the protected class. Hollins v. Atlantic Co., Inc., 188 F3d 652 (6th Cir. 1999).
Mudd contends that he suffered disparate treatment in connection with the Wallace photo incident, with being assigned to the second shift, and with being denied the transfer to Carrollton.
Mudd has not shown that the incident with the Wallace photo was the same or similar conduct to the incident involving Dettlinger and the scarf with the confederate flag. Not only did BellSouth management view the incident with the Wallace photo as clearly racist, but they concluded that it was designed to and did cause conflict among particular individuals in Mudd's department. Mudd also did not come forward to dispel the accusation that Dettlinger was responsible for posting the item on the bulletin board until over three weeks after the fact. Mudd has come forward with no evidence to contradict the findings of the inquiries into both incidents. Mudd testified that he got on well with his supervisors and never had any problems in his many years prior to the incident. Mudd is required, under the summary judgment standard, to come forward with some significant probative evidence establishing an issue for trial. With respect to the disciplinary action taken against him, we find that he has not done so.
With regard to the assignment to second shift, he cannot meet his burden, as a white employee was also assigned to the second shift. BellSouth has also established that the transfer of a white employed to another location did not render that employee immune from assignment to second shift, and he has been so assigned.
With respect to the requested transfer, he has not disputed that the widely-known policy of refusing transfers to employees with recent suspensions applied to him. He has not come forward with evidence concerning other transfers, other than the bald allegation that such transferred occurred. "[R]umors, conclusory allegations and subjective beliefs . . . are wholly insufficient to establish a claim of discrimination as a matter of law." Mitchell v. Toledo Hospital, 964 F.2d 577, 585 (6th Cir. 1992), citing, O'Shea v. Detroit News, 887 F.2d 683 (6th Cir. 1989), et al. Mudd has filed to make a prima facie showing of disparate treatment in connection with his transfer request.
Finally, Mudd contends that he was constructively discharged when he retired in 2001. In order to establish that he was constructively discharged, proof of discrimination alone is not enough. Mudd must demonstrate intent and aggravating factors which evidence a greater severity of harassment. Yates v. Avco Corp., 819 F.2d 630, 637 (6th Cir. 1987). Mudd's allegations are woefully inadequate with respect to this claim. He contends that he had a good working relationship with his supervisors and was given no reason to believe that they were biased against him because of his race. Yet, in hindsight, he contends that he was fearful that a ground would be manufactured by management to fire him and to impact his retirement. He has shown no evidence in support of this claim.
For the reasons set forth herein the motion of BellSouth for summary judgment will be granted by separate order.