COMMONWEALTH OF KENTUCKY CLARK CIRCUIT COURT CASE NO. 17-CI-00155 Filed Electronically ROBERT ANDERSON, JR. PLAINTIFF v. Defendant s Pre-Trial Memorandum WINCHESTER WAREHOUSE COMPANY, LLC DEFENDANT *** *** *** *** Comes the Defendant, Winchester Warehouse Company, LLC, by counsel, and for its Pre-Trial Memorandum, states as follows: DESCRIPTION OF FACTS: Robert Anderson, Jr. was hired as an hourly warehouse worker at Winchester Warehouse on Oct. 10, 2016. As an employee, Anderson was required to clock in when he began his shift, clock in and out for meal breaks and clock out at the end of his shift. He was less than compliant with clocking in and out for meal breaks and was counseled more than once about his noncompliance. Near the clock where Anderson clocked in and out every day, Winchester Warehouse posted a poster advising employees about wage and hour laws. At no time during his employment did Anderson ever claim that Winchester Warehouse failed to afford him appropriate breaks during the work day. Other employees of Winchester Warehouse observed Anderson taking regular rest and meal breaks throughout his period of employment at Winchester Warehouse. Anderson s wife frequently visited Anderson at work and brought him his lunch. MEM : 000001 of 000007 Filed 17-CI-00155 08/01/2018 Martha M. Miller, Clark Circuit Clerk
On December 12, 2016, Anderson reported to Winchester Warehouse s Operations Manager, Justin Gillispie, that he sustained a work related injury when he hit his head while operating a forklift inside the Warehouse. Justin consulted the administrative assistant/bookkeeper at Winchester Warehouse about what Anderson needed to do after his injury and she instructed Anderson to go to the Clark County Hospital and have the hospital send the bill to Winchester Warehouse. Justin took a photograph of Anderson s injury and then drove him to the hospital and dropped him off. When he returned to the warehouse, he prepared a note documenting Anderson s injury. Anderson alleges that on the way to the hospital, Justin made it clear that if he claimed his injury as a work related injury, he would not have a job. Justin disputes this and will testify that he advised Anderson to report his injury as work related and to have the bill sent to Winchester Warehouse but Anderson declined, telling him that he would turn the bill into his health insurance provider. Anderson was evaluated and then released from the Clark County Hospital and returned to work without restriction. He never presented any medical bill to Winchester Warehouse for payment and never filed any workers compensation claim. He claims he was discouraged from talking about his injury and medical bill at work. Anderson continued his employment with Winchester Warehouse until early March, 2017. On or about March 9, 2017, Justin Gillispie observed Anderson return to the warehouse after he had already clocked out for the day and Justin approached him to ask him a question when he saw something drop from the forklift Anderson was operating. He went to pick up the item and saw that it was a picture frame that he recognized had been in one of the warehouse MEM : 000002 of 000007 Filed 17-CI-00155 08/01/2018 2 Martha M. Miller, Clark Circuit Clerk
offices. Justin assumed Anderson intended to sneak the frame out of the warehouse. He told Anderson that they needed to discuss the matter the next day. Justin had several issues he wanted to discuss with Anderson. Not only did he want to address Anderson taking things out of the warehouse without permission, he also wanted to address some damage that he observed to some of the product that was being handled in the warehouse and Anderson clocking out and then returning to the warehouse. Anderson returned to the warehouse on March 10 and Justin attempted to discuss these issues with him but Anderson became angry and walked off the job. Thereafter, Anderson sent Justin text messages that he was dealing with some family issues. When Anderson inquired into his work status, Justin told him that he could work as long as he agreed to what Justin had discussed with him before he walked off the job on March 10. Despite Justin s assurances, Anderson never returned to work. When Justin texted Anderson to tell him he had his paycheck, Anderson s wife responded that Anderson had a breakdown and had checked himself into a hospital. When he was deposed, Anderson testified that he never checked into any hospital but instead went fishing with a friend. On March 30, 2017, just a few weeks after he abandoned his job, Anderson sued Winchester Warehouse. In his Complaint, Anderson alleges workers compensation retaliation in violation of KRS 342.197 and violations of KRS 337.355 and KRS 337.365. Winchester Warehouse denied Anderson s allegations. Anderson was always afforded rest breaks and meal breaks while he was employed at Winchester Warehouse. Anderson s time records reflect that he frequently failed to clock out when he took meal breaks. If he failed to clock out, he was paid for the time he was on a meal break even though he was not supposed to be on the clock during those breaks. MEM : 000003 of 000007 Filed 17-CI-00155 08/01/2018 3 Martha M. Miller, Clark Circuit Clerk
ISSUES OF LAW: 1. KRS 342.197 prohibits an employer from harassing, discharging or discriminating against an employee for filing and pursuing a lawful claim for workers compensation under Ky. law. Although a formal claim is not a prerequisite to pursuing a retaliation claim under KRS 342.197, a plaintiff must still establish that he intended to file and pursue a lawful workers compensation claim. 1 In this case, it is undisputed that Anderson has never filed a workers compensation claim nor has he submitted any bills associated with his work injury to Winchester Warehouse. If the jury decides that there is no evidence that Anderson intended to file and pursue a lawful workers compensation claim, is Winchester Warehouse entitled to judgement as a matter of law on his workers compensation retaliation claim? 2. If Anderson fails to present sufficient evidence that he was terminated from his employment at Winchester Warehouse, is Winchester Warehouse entitled to judgment as a matter of law on Anderson s KRS 342.197 workers compensation retaliation claim since there is no evidence of any other adverse employment action to which he was subjected during his employment? 3. KRS 337.355 requires an employer to grant their employees a reasonable period for lunch, as close to the middle of the employee s scheduled work shift as possible but in no case shall it be sooner than 3 hours after his work shift commences nor more than 5 hours from the time his work shift commences. Nothing in KRS 337.355 shall be construed to negate the mutual agreement between the employee and employer. If the jury decides that Anderson and Winchester Warehouse had a mutual agreement about when Anderson 1 Southerland v. Hardaway Mgmt. Co., 41 F. 3d 250, (6 th Cir. 1994); First Property Management Corp. v. Zarebidaki, 867 S. W. 2d 185 (Ky. 1993). MEM : 000004 of 000007 Filed 17-CI-00155 08/01/2018 4 Martha M. Miller, Clark Circuit Clerk
took his lunch break every day, and that agreement was that Anderson took his lunch breaks sooner than 3 hours after he clocked in or five hours or more after he clocked in, is Winchester Warehouse entitled to judgment as matter of law on Anderson s KRS 337.355 claim? 4. KRS 337.365 prohibits an employer from requiring any employee to work without a rest period of at least ten minutes during each four hours worked. The rest breaks are in addition to any lunch breaks and no reduction is compensation is permitted for the time an employee is on a rest break. If the jury decides that Anderson was not deprived of two, ten minute breaks on the days he worked an eight hour shift at Winchester Warehouse, is Winchester Warehouse entitled to judgment as a matter of law on Anderson s KRS 337.365 claim? 5. If Anderson is successful in prevailing on his claims, is his attorney entitled to recover attorney fees and if so, what is the amount of those recoverable fees? ISSUES OF FACT: 1. Did Anderson file and/or pursue a lawful claim for workers compensation for a work related injury he sustained in the course of his employment with Winchester Warehouse? 2. Did Winchester Warehouse discharge Anderson for filing or pursuing a lawful claim for workers compensation for a work related injury he sustained in the course of his employment with Winchester Warehouse? 3. If Winchester Warehouse discharged Anderson for filing and/or pursuing a workers compensation claim, what damages, if any, has Anderson sustained as a result of that violation? MEM : 000005 of 000007 Filed 17-CI-00155 08/01/2018 5 Martha M. Miller, Clark Circuit Clerk
4. Did Winchester Warehouse fail to provide Anderson a 30 minute meal break on any day he worked an 8 hour shift? 5. Did Winchester Warehouse fail to provide Anderson two ten minute breaks when he worked an 8 hour shift? 6. If Winchester Warehouse failed to provide Anderson a 30 minute lunch break during any 8 hour shift, what monetary damages, if any, did Anderson sustain? 7. If Winchester Warehouse failed to provide Anderson two ten minute rest breaks when he worked an 8 hour shift, what monetary damages, if any, did Anderson sustain? 8. If Winchester Warehouse provided Anderson a 30 minute meal break when he worked an 8 hour shift, is Winchester Warehouse entitled to a credit for any money it paid Anderson during those breaks due to his failure to clock out? 9. Did Anderson attempt to mitigate his damages after he left Winchester Warehouse after March 10, 2017 and if he did not, is Winchester Warehouse entitled to a reduction in any damages Anderson may be awarded? Respectfully submitted, KRIZ JENKINS PREWITT & JONES, P.S.C. P.O. Box 499 Lexington, KY 40588 Telephone: (859) 255-6885, ext. Facsimile: (859) 253-9709 By: /s/barbara A. KRIZ Counsel for Defendant MEM : 000006 of 000007 Filed 17-CI-00155 08/01/2018 6 Martha M. Miller, Clark Circuit Clerk
Certificate of Service I hereby certify that on the1st day of August, 2018, I electronically filed the foregoing with the Clerk of the Court by using the CourtNet e-file system. I hereby certify that a true and accurate copy of the foregoing pleading has been served by mail upon the following parties on this the 1st day of August, 2018: Matthew T. Lockaby Lockaby PLLC 1795 Alysheba Way, Suite 4207 Lexington, KY 40509 /s/barbara A. KRIZ Counsel for Defendant MEM : 000007 of 000007 Filed 17-CI-00155 08/01/2018 7 Martha M. Miller, Clark Circuit Clerk