E-mail, age discrimination, and conspiracy

The U.S. District Court for the Western District of Kentucky recently ruled that a supervisor's statement that he would replace an employee with an "ass-kicking bad ass" wasn't evidence of "personal bias."


David Bzura, who is over 40, worked as a store manager for Lumber Liquidators, Inc., from January 2005 until April 2013. James Davis was the company's vice president of sales, and Jamie Craig was its regional manager.

Both Davis and Craig visited Bzura's store on different occasions in March 2013. Bzura claimed that neither one informed him of any problems during the visits. He further claimed that he had served as store manager without complaint or discipline until April 2013.

In early April 2013, Bzura (and other store managers in his region) mistakenly received an e-mail from Craig. The e-mail was intended only for Davis and included the following: "Termination of SM in 1065 and replacing with AKBA." "SM in 1065" referred to Bzura — the store manager for store 1065. Bzura alleges that "AKBA" was an acronym for "ass-kicking bad ass."

After the e-mail was sent, Craig again visited Bzura's store and gave him a corrective action notice. The notice contained a performance improvement plan that required Bzura to improve on 37 items by May 4, 2013. Bzura didn't make it. He was terminated on April 30, 2013, and was replaced by someone younger.

Bzura sued Davis, Craig, and Lumber Liquidators for wrongfully terminating him because of his age. He also alleged they "conspired" to violate the Kentucky Civil Rights Act (KCRA).

Court ruling

The U.S. District Court for the Western District of Kentucky dismissed the age discrimination claim against Davis and Craig. Individuals can't be held liable for discrimination under the KCRA.

The court also dismissed the conspiracy claim, ruling that a company can't conspire with its own employees. To have a conspiracy, there must be two or more separate entities. In this case, the court considered the company and its employees all one entity.

There was one exception to that rule — a conspiracy could be established between a company and an employee if the employee was acting solely out of "personal bias." Bzura argued that the "AKBA" reference in the e-mail proved that Craig had a personal bias against him because of his age. He claimed that the phrase "ass-kicking bad ass" created the "fair inference in the industry" of a younger employee. The court disagreed and dismissed the case. Bzura v. Lumber Liquidators et al., 3:13-cv-00661-CRS-JDM, 2014 WL 798155, (W.D. Ky., Feb. 27, 2014).

Bottom line

Another e-mail case. Be! Careful! With! Your! E-mail! In addition, this case again reminds Kentucky supervisors that they can be held personally liable under the KCRA for conspiring to discriminate against employees. All communication and documentation regarding discipline and discharge should be objective evaluations of employee performance. Personal comments are not only subjective, but they also can be dangerous.

For more information on this topic, please contact Mekesha Montgomery at mmontgomery@fbtlaw.com.