Brown v. Cooper Tire & Rubber Company et al
Filing
121
MEMORANDUM OPINION re 120 Order on Motions for Summary Judgment. Signed by District Judge Sharion Aycock on 7/22/2015. (geb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
ERIC BROWN
PLAINTIFF
V.
CIVIL ACTION NO. 1:13-CV-00176-SA-JMV
COOPER TIRE & RUBBER COMPANY, and
T.K. GROUP, INC.
DEFENDANTS
MEMORANDUM OPINION
Plaintiff Eric Brown initiated this action against his employer Cooper Tire & Rubber
Company (“Cooper Tire”) and its third party contractor T.K. Group, Inc. (“T.K. Group”),
alleging claims against both Defendants under the Americans with Disabilities Act (“ADA”) and
against T.K. Group under Mississippi law for tortious interference with contract and negligence.
Both Cooper Tire and T.K. Group have filed motions for summary judgment [64, 66]. Upon
consideration of the motions, responses, rules, and authorities, the Court finds as follows:
Facts and Procedural History
While serving in the National Guard, Eric Brown discovered through military hearing
tests that he suffered from high frequency hearing loss. Brown later began employment with
Cooper Tire at its Tupelo plant as a utility person, filling in for other employees who were
absent. Pursuant to regulations promulgated by the Occupational Safety and Health
Administration (“OSHA”), Brown and other employees at the Tupelo plant were required to
undergo annual hearing tests, or audiograms, in order to determine whether their work
environment caused significant hearing loss, known as a standard threshold shift (“STS”). See 29
C.F.R. § 1910.95(g). Cooper Tire contracted with T.K. Group to conduct these hearing tests.
While at the plant, T.K. Group technicians administered multiple audiograms at one time, having
Cooper Tire employees sit in a booth and listen for a “beep” tone over headphones. Employees
were instructed to press a button upon hearing the tone.
T.K. Group conducted Brown’s first audiogram in October 2011 without incident.
Brown’s next audiogram was conducted by T.K. Group technicians James Younglove and
Barbara Younglove on October 4, 2012. Monica Hauss, the Workers’ Compensation Specialist
in the human resources department at the Tupelo plant and primary contact person for T.K.
Group, testified that following Brown’s test, one of the technicians informed her that Brown’s
results were “all over the board,” and that this was an indication that he was repeatedly pressing
the button. Hauss asserts that she and the technician agreed Brown should be retested. However,
Barbara Younglove denies ever talking with Hauss, and James Younglove testified that he never
communicated the content of Brown’s results to Hauss.
In any event, it is undisputed that Cooper Tire decided to proceed with a retest of Brown,
which took place on October 9, 2012 and was conducted by technicians Billy Williams and
Janelle Williams. Following the retest, Hauss testified that one of the technicians again stated
that Brown’s results were “all over the board” and that when this happens, it is usually a sign of
someone “constantly hitting the button.” Both Billy Williams and Janelle Williams deny making
such a statement.
After the retest, Hauss reported the issues with both of Brown’s tests to Cole Goodson,
the plant’s Production Manager, explaining, in Goodson’s words, that she and the technicians felt
“like he [wa]s falsifying the information . . . and just hitting the button.” Goodson conducted a
subsequent investigation into the hearing tests and then terminated Brown on October 22, 2012.
Following his termination, Brown requested and was granted a peer review hearing before a
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panel comprised of other Cooper Tire employees on December 6, 2012. The panel voted to
uphold Brown’s termination.
After the panel’s decision, Brown filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) and subsequently received his right-to-sue letter. He commenced this
suit in September 2013, alleging that both Defendants discriminated against him on the basis of
his hearing impairment in violation of the ADA.1 Brown also brings claims against T.K. Group
under Mississippi law for tortious interference with contract and for negligence. In his response
to T.K. Group’s Motion for Summary Judgment [66], Brown conceded his ADA claim against
T.K. Group, and it is accordingly dismissed. The Court will therefore address the remaining
ADA claim against Cooper Tire, before turning to the state-law claims against T.K. Group.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when the evidence reveals both that there is no genuine dispute regarding any material
fact and that the moving party is entitled to judgment as a matter of law. The rule “mandates the
entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct.
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There is some intimation by Brown in his complaint that an ankle injury he suffered while at Cooper Tire likewise
constitutes a disability. In response to the pending motions, however, Brown has submitted no proof nor made any
argument that his ankle injury constitutes a disability. The Court therefore finds this potential basis for Brown’s
ADA claim to be abandoned. See Sanders v. Sailormen, Inc., 2012 WL 663021, at *3 (S.D. Miss. Feb. 28, 2012).
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2548. The nonmoving party must then “go beyond the pleadings” and designate “specific facts
showing that there is a genuine issue for trial.” Id. at 324, 106 S. Ct. 2548 (quotation and citation
omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the
nonmovant, “but only when . . . both parties have submitted evidence of contradictory facts.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such
contradictory facts exist, the Court may “not make credibility determinations or weigh the
evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147
L. Ed. 2d 105 (2000). Importantly, conclusory allegations, speculation, unsubstantiated
assertions, and legalistic arguments have never constituted an adequate substitute for specific
facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754,
759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little, 37 F.3d at 1075.
Discussion and Analysis
Disability Discrimination
Brown claims Cooper Tire illegally discriminated against him by terminating him
because of his hearing impairment. The ADA makes it unlawful for an employer to “discriminate
against a qualified individual on the basis of disability in regard to job application procedures,
the hiring, advancement, or discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).
Brown attempts to establish the alleged ADA violation with circumstantial evidence only,
and thus he must navigate the familiar McDonnell Douglas burden-shifting framework in order
to prove intentional discrimination. EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973)). Under this framework, Brown must first raise an inference of discrimination by
establishing his prima facie case. Id. at 694 (citation omitted). If he succeeds, Cooper Tire “must
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articulate a legitimate, nondiscriminatory reason” for Brown’s termination. Id. Once Cooper Tire
produces such an explanation, the burden shifts back to Brown to demonstrate that either (a)
Cooper Tire’s asserted justification is false, or (b) that even if Cooper Tire’s justification is true,
another motivating factor in Brown’s termination was his disability. Id. at 702.
The Fifth Circuit in LHC Group recently clarified the necessary prima facie elements in
an ADA discriminatory termination case. A plaintiff must demonstrate: “(1) that he has a
disability; (2) that he was qualified for the job; [and] (3) that he was subject to an adverse
employment decision on account of his disability.” Id. (citing Zenor v. El Paso Healthcare Sys.,
Ltd., 176 F.3d 847, 853 (5th Cir. 1999)) (alteration in original). For summary judgment
purposes, Cooper Tire does not contest the first two elements. It argues only that Brown cannot
demonstrate a causal nexus between his hearing disability and termination. See id. at 701 (citing
Zenor, 176 F.3d at 853).
The parties agree that Brown was terminated in response to the audiograms conducted by
T.K. Group. Cooper Tire asserts that Brown was terminated because, based on the erratic results,
it believed Brown falsified the audiograms, whereas Brown argues he was terminated due to the
fact of his hearing impairment.
In demonstrating a causal nexus, Brown has produced reports from two different
healthcare professionals, Dr. Brian McKinnon and Audiologist Stacy Sanders. Following
Brown’s termination, Dr. McKinnon diagnosed Brown with Cochlear Meniere’s disease.
According to McKinnon, Brown’s test results were consistent with this disease, which “presents
with low fluctuating hearing loss.” Similarly, Sanders explained in a report that, based on
documentation relating to Brown’s hearing and the results from the audiograms performed by
T.K. Group, Brown suffers from tinnitus, which causes ringing in the ears and can create
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confusion between sounds attributable to tinnitus and those made by the audiogram testing
equipment.
In view of these expert opinions that Brown’s hearing impairment caused his unusual
results, and given the fact that these results undisputedly resulted (one way or the other) in his
termination, the Court finds sufficient evidence of a causal nexus between Brown’s disability and
termination. Therefore, Brown has met his prima facie burden.
Goodson testified that he terminated Brown for falsifying hearing tests, and it is clear
from the peer review transcript that he maintained that position while testifying at Brown’s
hearing. Attempting to demonstrate that this asserted justification is pretextual, Brown argues
that Goodson’s belief of falsified tests initially stemmed from Hauss, and that her report and
testimony has faced substantial contradiction. Hauss’ report, according to Goodson, was that
T.K. Group technicians told her Brown’s results were falsified. The four technicians on site at
Cooper Tire each denied making such a representation to Hauss.
Goodson argues that Hauss’ allegedly false report is irrelevant to whether Cooper Tire,
acting through its decisionmaker Goodson, engaged in disability-based discrimination. However,
the actions of a manager or co-employee may be imputed to the decisionmaker via the cat’s paw
theory of liability. See Haire v. Bd. of Supervisors of La. State Univ. Agric. & Mech. Coll., 719
F.3d 356, 366 & n.11 (5th Cir. 2013) (“[A] subordinate employee’s discriminatory remarks
regarding a co-worker can be attributed to the workplace superior . . . .”); EEOC v.
DynMcdermott Petroleum Operations Co., 537 F. App’x 437, 443 (5th Cir. 2013) (citation
omitted) (“[T]he discriminatory animus of a manager can be imputed to the ultimate
decisionmaker . . . .”). Such imputation is proper under this theory if the plaintiff is able to
demonstrate that another employee (1) harbored discriminatory animus, and (2) “possessed
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leverage, or exerted influence, over the titular decisionmaker.” Roberson v. Alltel Info. Servs.,
373 F.3d 647, 653 (5th Cir. 2004) (quoting Russell v. McKinney Hosp. Venture, 235 F.3d 219,
226 (5th Cir. 2000)).
As discussed above, Hauss allegedly misrepresented the erratic test results—which Dr.
McKinnon and Audiologist Sanders attribute to Brown’s hearing disability—to the
decisionmaker Goodson, thereby creating a factual issue as to whether Hauss exhibited
disability-based animus. In turn, Goodson conducted a subsequent investigation into Brown’s
conduct, including, among other things, consultation with Hauss. Goodson testified that he
terminated Brown “purely based off what the T.K. Group told us about the hearing test that was
taken” and that he never personally spoke to the T.K. Group employees, but relied on Hauss’
representation of her conversations with the technicians. Additionally, at the peer review hearing,
Goodson and Tim White each testified, against Brown, about Hauss’ conversations with T.K.
Group. The only other person who testified against Brown at the hearing was Hauss.
Although, as Cooper Tire notes, the connection between the allegedly biased employee
and the allegedly discriminatory employment decision may be severed by “an independent
investigation fairly conducted,” Schuh v. Town of Plantersville, Miss., 2014 WL 4199271, at
*10 (N.D. Miss. Aug. 22, 2014), “[t]he degree to which [the final decisionmaker’s] decisions
were based on his own independent investigation is a question of fact.” Gee v. Principi, 289 F.3d
342, 346 (5th Cir. 2002) (quotation omitted) (alteration in original). For these reasons, the Court
finds that Brown has created a genuine issue of material fact as to disability discrimination.
Cooper Tire’s Motion for Summary Judgment [64] is DENIED.
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Tortious Interference with Contract
Brown next pursues a claim of tortious interference with contract against T.K. Group,
arguing that the company’s technicians caused his termination by communicating to Monica
Hauss that he falsified his hearing tests.2 To prove his claim of tortious interference with contract
against T.K. Group, Brown must demonstrate:
(1) that [T.K. Group’s] acts were intentional and willful; (2) that they were
calculated to cause damage to [Brown] in [his] lawful business; (3) that they were
done with the unlawful purpose of causing damage and loss, without right or
justifiable cause on the part of [T.K. Group] (which constitutes malice); and (4)
that actual damage and loss resulted.
Coleman & Coleman Enters., Inc. v. Waller Funeral Home, 106 So. 3d 309, 315-16 (Miss. 2012)
(quoting Par Indus., Inc. v. Target Container Co., 708 So. 2d 44, 48 (Miss. 1998)). Brown must
also show that he and Cooper Tire shared an enforceable obligation that would have been
performed if not for the alleged interference by T.K. Group. Id.
Intentional and Willful
As to the first element of intent and willfulness, the Mississippi Supreme Court has
explained that “a showing of specific intent is not required.” Id. Instead, the requisite mental
state may be inferred so long as the defendant (1) “knows a contract exists between two
parties[,]” (2) “does a wrongful act” and (3) “is certain or reasonably certain” that such act will
interfere with the contract. Id. at 316 (quoting Neider v. Franklin, 844 So. 2d 433, 437 (Miss.
2003)).
Even assuming that Brown has established knowledge and wrongfulness, there is no
evidence that T.K. group technicians were reasonably certain that an interference with Brown’s
employment would result from their alleged communications with Hauss. Three of the four
2
The Mississippi Supreme Court has held that a claim for tortious interference with contract may be premised on an
at-will employment relationship. Levens v. Campbell, 733 So. 2d 753, 760 (Miss. 1999).
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technicians testified that Hauss was T.K. Group’s contact person at Cooper Tire and that they
understood Hauss to have administrative responsibilities with respect to the audiograms.
However, nothing suggests they believed that Hauss had the capacity to suspend, terminate, or
effect any other adverse employment action against Brown, and there is no evidence that she
possessed such capacity. Additionally, during the conversations in which the technicians
allegedly indicated that Brown was “going click, click, click, click,” there is no indication that
any of the technicians understood Brown’s employment with Cooper Tire to be at stake. Indeed,
the purpose of T.K. Group’s presence at Cooper Tire and the technicians’ interactions with
Hauss was to conduct OSHA mandated hearing tests for the ultimate protection of the
employees, not to uncover employee misconduct. See 29 C.F.R. § 1910.95. There is no evidence
suggesting that, by allegedly communicating the erratic test results to Hauss, the technicians
were reasonably certain that Brown would be terminated. See Coleman & Coleman Enters., Inc.,
708 So. 3d at 316. Hence, the Court finds that Brown has failed to create a genuine issue of
material fact on the element of intent and willfulness.
Calculated to Cause Damage
Additionally, to demonstrate the second element of tortious interference with contract—
that T.K. Group’s actions were calculated to cause damage—Brown merely asserts that Hauss’
testimony permits the jury to find that the technicians “either knew, or should have known that
accusing a person of falsifying a hearing test is a serious charge, and could cause that person to
lose his job.”
The Mississippi Supreme Court was faced with a similar argument in Hollywood
Cemetery Ass’n v. Bd. of Mayor and Selectmen of City of McComb, 760 So. 2d 715, 720 (Miss.
2000). There, the City of McComb decided to repeal the plaintiff’s right to open and close
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graves, an activity that had provided the plaintiff with a significant portion of its income. Id. at
717. The plaintiff argued that the element of calculation was established because the City “knew
that its actions would injure [the plaintiff].” Id. at 720. But the Court held that “[t]he City’s mere
knowledge of a detrimental effect on [the plaintiff] does not constitute evidence that its actions
were calculated to cause damage.” Id. Applying that principal here, even if the T.K. Group
technicians had knowledge that Brown’s termination would result from their actions (a fact far
from established), such knowledge would be insufficient to demonstrate that T.K. Group’s
conduct was calculated to cause loss.
The Court accordingly finds that Brown has failed to produce sufficient evidence for
purposes of the first two elements of tortious interference with contract. Summary judgment on
this claim is, therefore, GRANTED.
Negligence3
Brown also brings a negligence claim against T.K. Group based upon the same conduct
giving rise to his tortious interference claim. To maintain a negligence cause of action, Brown
must establish (1) that T.K. Group owed him a legal duty, (2) that it breached that duty, (3) that
the breach proximately caused Brown’s alleged injury, and (4) that damages resulted therefrom.
Watson Quality Ford, Inc. v. Casanova, 999 So. 2d 830, 835 (Miss. 2008).
The Mississippi Supreme Court has stated that “[w]hether a duty exists in a negligence
case is a question of law to be determined by the court.” Enter. Leasing Co. S. Cent. v. Bardin, 8
So. 3d 866, 868 (Miss. 2009) (quoting Brown v. J.J. Ferguson Sand & Gravel Co., 858 So. 2d
129, 131 (Miss. 2003)) (alteration in original). In negligence cases, the defendant has a duty to
3
Out of an abundance of caution, the Court requested and received additional briefing regarding whether negligence
may be a legally viable cause of action in the instant case, where the damages requested flow from the termination
of an employment contract. After considering the parties’ briefing and relevant Mississippi law, the Court is
persuaded that this inquiry is unnecessary at the summary judgment stage.
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exercise reasonable care. Eli Inves., LLC v. Silver Slipper Casino Venture, LLC, 118 So. 3d 151,
154 (Miss. 2013). Thus, T.K. Group was required to act “as a reasonable and prudent [company]
would have under the same or similar circumstances.” Id. (quoting Donald v. Amoco Prods. Co.,
735 So. 2d 161, 175 (Miss. 1999)).
To prove breach of this general duty, Brown must demonstrate that T.K. Group failed to
exercise the reasonable care required. McDonald v. Mem’l Hosp. at Gulfport, 8 So. 3d 175, 180
(Miss. 2009). Brown highlights the fact that three out of the four technicians testified that they
were not qualified to interpret tests. He argues that, notwithstanding this apparent limitation, at
least two technicians accused him of falsifying hearing tests conducted in 2012.
The lone witness giving credence to this theory is Monica Hauss, who indicated at
various points throughout her deposition that the technicians conveyed that Brown falsified the
test results by repeatedly hitting the button. T.K. Group has filed a Motion to Strike [82] much of
Hauss’ testimony regarding her communications with the T.K. Group technicians, arguing inter
alia that she answered in response to a leading and compound question. See FED. R. EVID.
611(a), (c). However, viewing Hauss’ deposition testimony as a whole, the Court finds a genuine
issue for trial as to whether the technicians conveyed to Hauss that Brown falsified his tests.
Moreover, regardless of any merit that T.K. Group’s objections to question format may
have, trial provides the best forum for the Court to exercise its discretion in enforcing Federal
Rule of Evidence 611. The Court finds that to grant summary judgment, simply for the reason
that answers may have been given in response to objectionable question format, would be
unwarranted here. See Veillon v. Exploration Servs., Inc., 876 F.2d 1197, 1200 (5th Cir. 1989)
(“A district judge has the discretion to deny a Rule 56 motion even if the movant otherwise
successfully carries its burden of proof if the judge has doubt as to the wisdom of terminating the
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case before a full trial.”). For these reasons, T.K. Group’s Motion to Strike [82] is DENIED, and
the Court finds a question of fact as to whether the technicians’ alleged communications to
Hauss constituted a breach of T.K. Group’s duty of reasonable care.
To establish the next element of negligence, proximate cause, Brown must show that
T.K. Group’s “conduct was the cause in fact and the legal cause of the plaintiff’s injury.” Huynh
v. Phillips, 95 So. 3d 1259, 1263 (Miss. 2012) (quoting Glover ex rel. Glover v. Jackson State
Univ., 968 So. 2d 1267, 1277 (Miss. 2007)). “Cause in fact means that, but for the defendant’s
negligence, the injury would not have occurred.” Id. Legal cause means the injury “is the type, or
within the classification, of damage the negligent actor should reasonably expect (or foresee) to
result from the negligent act.” Id.
According to Goodson, Hauss reported that the technicians informed her that Brown
falsified two tests. And as stated previously, Goodson testified that he decided to terminate
Brown “purely” for this reason. In view of this direct testimony, the Court finds sufficient
evidence creating a jury question as to whether T.K. Group’s conduct was the cause in fact of
Brown’s termination.
With regard to legal cause or foreseeability, the technicians’ alleged communications
were made to Hauss, who at least three of the four technicians understood to be their primary
contact person from Cooper Tire, and who they understood had responsibilities relating to the
administration of the hearing tests. As discussed above, for purposes of Brown’s tortious
interference claim, the mere fact that Hauss was a Cooper Tire representative does not create an
issue of fact as to whether the technicians were “reasonably certain” that Brown would be
terminated. Nonetheless, the Court finds that whether Brown’s termination was a foreseeable
consequence of their alleged communications to Hauss presents a question for the jury. See Am.
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Nat. Ins. Co. v. Hogue, 749 So. 2d 1254, 1259 (Miss. Ct. App. 2000) (citing Lyle v. Mlandinich,
584 So. 2d 397, 399 (Miss. 1991)) (“Foreseeability and breach of duty are issues to be decided
by the factfinder once sufficient evidence is submitted.”).
Accordingly, the Court finds a genuine issue of material fact as to each of the disputed
elements of negligence. T.K. Group’s request for summary judgment on this claim is DENIED.
Conclusion
For the foregoing reasons, Cooper Tire’s Motion for Summary Judgment [64] is
DENIED, and T.K. Group’s Motion for Summary Judgment [66] is GRANTED IN PART and
DENIED IN PART. Brown’s ADA and tortious interference claims against T.K. Group are
dismissed, but his remaining claims survive. A separate order to that effect shall issue this day.
SO ORDERED, this 22nd day of July, 2015.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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