Robert C. Rives, IV

We defended a convenience store chain against allegations of age discrimination, hostile work environment and discriminatory discharge from a former employee. The plaintiff, an 11-year employee who was 57 years old, was terminated after a third violation of store policy prohibiting employees from purchasing lottery tickets while on the clock. The plaintiff claimed that the tickets were purchased for her sister, a customer who was undergoing chemotherapy and was unable to visit the store. The plaintiff also asserted that she and other employees had been subjected to age-hostile comments from management-level officials and, upon termination, filed suit alleging that her former employer had violated the Kentucky Civil Rights Act, KRS Ch. 344, by subjecting her to an age-hostile work environment and to an age-discriminatory discharge. She also asserted claims for failure to pay accrued vacation under Kentucky law, KRS Ch. 337, intentional infliction of emotional distress and public policy wrongful discharge. Ultimately the plaintiff’s wage and hour, emotional distress and public policy wrongful discharge claims were dismissed, and the case went to trial on the plaintiff’s civil rights claims.

Prior to trial, we utilized targeted discovery and motions in limine to limit the plaintiff’s damages, including a motion to exclude evidence of the plaintiff’s lost wages and a motion to strike her claim for back pay. The plaintiff admitted that she had only applied for one job in the three years since her termination, and that she had stopped looking for work after applying for Social Security disability benefits. The Court ruled that the plaintiff had not used reasonable efforts to find alternate employment to limit her damages, and that the receipt of Social Security benefits barred her claim for lost wages.

During a four-day jury trial in Jefferson Circuit Court, we discredited a former manager who testified to having also been subject to age discrimination. We also discredited the plaintiff’s story of purchasing the lottery ticket for her sister, after the sister testified that she was not undergoing chemotherapy treatments at the time the ticket was purchased, and that she had, in fact, stopped playing the lottery. The 12-member jury found in favor of the defendant of the plaintiff’s claims of an age-hostile work environment and an age-discriminatory discharge. The plaintiff’s deadline to appeal passed, and the defense verdict became final.