Barnes v. SRI Surgical Express, Inc.

Filing 102

MEMORANDUM AND ORDER: for the reasons stated herein, Defendant's Motion for Summary Judgment (Doc. 57 ) and Motion to Strike the Purported Affidavit of Donnie Mulkey, to Preclude Plaintiff from Relying upon the Deposition Te stimony of Donnie Mulkey, and for Other Appropriate Sanctions (Doc. 96 ) are hereby GRANTED. Defendant's Motion for Partial Summary Judgment as to Punitive Damages (Doc. 59 ) is hereby DENIED AS MOOT. As noted above, the Court will set the matter of potential sanctions relating to the 'Mulkey Affidavit ' for a hearing by separate order. Signed by District Judge Harry S Mattice, Jr on 3/28/2012. (BJL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
MAXINE BARNES,
Plaintiff,
vs.
SRI SURGICAL EXPRESS, INC.,
Defendant.

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Case No. 1:09-cv-204
Judge Mattice

MEMORANDUM AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment (Doc. 57) (“MSJ”)
filed on January 21, 2011, together with a Memorandum in Support (Doc. 58) ("MSJ
Mem."); excerpts from Plaintiff's deposition conducted on October 20, November 10, and
November 30, 2010 (Doc. 57-1) (“Barnes Dep.”) and selected exhibits1 thereto; the affidavit
of Ray Reilly and exhibits thereto (Doc. 57-2) (“Reilly Aff.”); affidavit of John DenBleyker
and an exhibit thereto (Doc. 57-3) (“DenBleyker Aff.”); and the affidavit of Sharlene
Johnson and exhibits thereto (Doc. 57-4) (“Johnson Aff.”). The same day – January 21,
2011 – Defendant (“SRI”) also filed a Motion for Partial Summary Judgment as to Punitive
Damages (Doc. 59) (“MPSJ”), also filed together with a Memorandum in Support (Doc. 60)
("MPSJ Mem."); excerpts from Plaintiff's deposition and an exhibit thereto (Doc. 59-1); and
the affidavit of Ray Reilly and exhibits thereto (Doc. 59-2).
On March 1, 2011, Plaintiff responded to both of Defendant’s motions in one ninepage brief (Doc. 64) (“Respon. Br.”), together with a (one-page, content-less) “Response
1

Ex. 17, June 6, 2007 Letter from D. Mulkey to M. Barnes re: W ritten W arning (Doc. 57-1, 122-23)
(“June 6 Ltr.); Ex. 18, June 13, 2007 Em ployee W arning Notice (Doc. 57-1, 124) (“June 13 W arning”); Ex. 19,
June 13, 2007 Letter from D. Mulkey to M. Barnes re: W ritten W arning (Doc. 57-1, 125-26) (“June 13 Ltr.”);
Ex. 23, Apr. 11, 2007 Mem . from A. Hines to M. Barnes (Doc. 57-1, 127) (“Apr. 11 Mem .”); Ex. 24, May 19,
2007 THRC Com pl. (Doc. 57-1, 128-135).

to Defendant’s Motions for Summary Judgment” (Doc. 63); lengthy excerpts from the
transcript of an unidentified deposition (Docs. 63-1 through 63-4); and five
unidentified/unlabeled exhibits, including “Exhibit, Evaluations” (Doc. 64-4), “Exhibit, Emails 1&2" (Docs. 64-1 & 64-2), “Mulkey affidavit” (Doc. 64-3), and “Exhibit, Write-ups”
(Doc. 64-5).
On March 8, 2011, Defendant filed its Reply to Plaintiff’s Response to its Motion For
Partial Summary Judgment – Punitive Damages (Doc. 75) (“MPSJ Reply” or “Partial
Summary Judgment Reply”), and then, after a significant discovery dispute,2 its Reply Brief
as to the Motion for Summary Judgment (Doc. 83) (“MSJ Reply” or “Summary Judgment
Reply”) on April 1, 2011.
On April 6, 2011, Plaintiff filed a Motion for Time to Make Additional Response (Doc.
91) – which the Court construed in its April 13, 2011 Order (Doc. 92) as a Motion for Leave
to File a Surreply – and filed a Supplemental Brief in Opposition to Summary Motions (Doc.
94) (“Surreply”) on April 15, 2011.
Finally, on April 28, 2011, Defendant filed its “Motion to Strike the Purported Affidavit
of Donnie Mulkey, to Preclude Plaintiff from Relying upon the Deposition Testimony of
Donnie Mulkey, and for Other Appropriate Sanctions” (Doc. 96) (“Mot. Strike”), together
with a memorandum in support (Doc. 98) (“Strike Mem.”). Plaintiff filed her response to

2

The so-called “Mulkey affidavit” was generated on February 28, 2011, well after not only the
February 15, 2011 close of discovery, but m ore than a m onth after Defendant filed its m otions for sum m ary
judgm ent on January 21, 2011. This late-created and undisclosed evidence led to a substantial dispute
between the parties, resolved by United States Magistrate Judge Carter on March 8, 2011 in his Order (Doc.
74) allowing Defendant to depose Mr. Mulkey and file its sum m ary judgm ent reply briefs thereafter. Due to
delays in getting the transcript, Defendant first filed a copy of its reply brief without citations to or attaching
excerpts from the official transcript of the Mulkey deposition (Doc. 82), supplem enting it two days later with
a copy of the brief with the appropriate citations and excerpts (Doc. 83). Therefore, all references to
Defendant’s Reply will be to the later-filed reply brief (Doc. 83).

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Defendant’s motion to strike(Doc. 100) (“Strike Respon.”) on May 20, 2011, and Defendant
filed its brief in reply (Doc. 101) (“Strike Reply”) on May 23, 2011.
For the reasons explained below, Defendant’s Motion for Summary Judgment (Doc.
57) and Motion to Strike the Purported Affidavit of Donnie Mulkey, to Preclude Plaintiff from
Relying upon the Deposition Testimony of Donnie Mulkey, and for Other Appropriate
Sanctions (Doc. 96) will be GRANTED, and Defendant’s Motion for Partial Summary
Judgment as to Punitive Damages (Doc. 59) will be DENIED AS MOOT.
I.

LEGAL STANDARD
Federal Rule of Civil Procedure 56 permits a party to move for summary judgment

– and the Court to grant summary judgment – “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of
material facts must support its position either by “citing to particular parts of materials in the
record,” including depositions, documents, affidavits or declarations, stipulations, or other
materials, or by “showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.” Fed. R. Civ. P. 56(c)(1). In ruling on a motion for summary judgment, the
Court must view the facts contained in the record and all inferences that can be drawn from
those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc.,
253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the
credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue
of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving
party may discharge this burden either by producing evidence that demonstrates the
absence of a genuine issue of material fact or simply “by ‘showing’ – that is, pointing out
to the district court – that there is an absence of evidence to support the nonmoving party’s
case.” Id. at 325. Where the movant has satisfied this burden, the nonmoving party cannot
“rest upon its . . . pleadings, but rather must set forth specific facts showing that there is
a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009)
(citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonmoving party must present
sufficient probative evidence supporting its claim that disputes over material facts remain
and must be resolved by a judge or jury at trial. Anderson, 477 U.S. at 248-49 (citing First
Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 (1968)). See also, White v. Wyndham
Vacation Ownership, Inc., 617 F.3d 472, 475-76 (6th Cir. 2010). A mere scintilla of
evidence is not enough; there must be evidence from which a jury could reasonably find
in favor of the nonmoving party. Anderson, 477 U.S. at 252; Moldowan, 578 F.3d at 374.
The Court’s role is limited to determining whether there is a genuine dispute about
a material fact, that is, if the evidence in the case “is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Such a determination
requires that the Court “view the evidence presented through the prism of the substantive
evidentiary burden” applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately
prove its case at trial by a preponderance of the evidence, on a motion for summary

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judgment the Court must determine whether a jury could reasonably find that the plaintiff’s
factual contentions are true by a preponderance of the evidence. See id. at 252-53.
Finally, if the nonmoving party fails to make a sufficient showing on an essential
element of its case with respect to which it has the burden of proof, the movant is entitled
to summary judgment. Celotex, 477 U.S. at 323. The Court must construe Rule 56 with
due regard not only for the rights of those “asserting claims and defenses that are
adequately based in fact to have those claims and defenses tried to a jury,” but also for the
rights of those “opposing such claims and defenses to demonstrate in the manner provided
by the Rule, prior to trial, that the claims and defenses have no factual basis." Id. at 327.
II.

FACTUAL BACKGROUND
A.

Problems Raised By Plaintiff’s Citations to Evidence in Her Response

As an initial matter, Court would note that, although it views the facts in the light
most favorable to Plaintiff, the poor quality of Plaintiff’s briefing has considerably
complicated the Court’s task. Rule 56 is very clear that “[a] party asserting that a fact . . .
is genuinely disputed must support the assertion by citing to particular parts of materials
in the record,” and that “[t]he court need consider only the cited materials,” although the
Court “may consider other materials in the record.” Fed. R. Civ. P. 56(c)(1)(A) & (c)(3)
(emphasis added).
Further, while this is not a situation where Plaintiff has failed to respond altogether,
Plaintiff’s Response is so deficient that an evaluation of the Court’s responsibilities when
presented with an unopposed dispositive motion is appropriate here. A district court cannot
grant summary judgment in favor of a movant simply because the adverse party has not

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responded; at a minimum, the court is required to examine the motion to ensure that the
movant has met his initial burden. Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th
Cir. 1998). But, in the absence of a response, the court will not “sua sponte comb the
record from the partisan perspective of an advocate for the non-moving party.” Guarino v.
Brookfield Twp. Trs., 980 F.2d 399, 410 (6th Cir. 1992). “Rather, in the reasoned exercise
of its judgment the court may rely on the moving party’s unrebutted recitation of the
evidence, or pertinent portions thereof, in reaching a conclusion that certain evidence and
inferences from evidence demonstrate facts which are ‘uncontroverted.’” Id. If such
evidence supports a conclusion that there is no genuine issue of material fact, the court
will determine that the moving party has carried its burden, and “judgment shall be
rendered forthwith.” Id. (alteration omitted).
The subjects of the instant Order are Defendant’s two dispositive motions – one
motion for summary judgment and one motion for partial summary judgment on the issue
of punitive damages – each of which is accompanied by a memorandum in support totaling
twenty-five and seventeen pages respectively. Plaintiff filed a single response to both
motions, and the brief in support totaled nine pages. Furthermore, the section purporting
to lay out the relevant facts – itself constituting just over two pages of the Response – is
lifted almost word-for-word from the Complaint, with Plaintiff omitting Section II(D)
(discussing the “EEOC and TCHRC” claims)of the Complaint in the Response and adding
two sentences to the end of the second paragraph in Section II(C) (about Plaintiff’s
confusion and vague feelings about the termination).
Another of the Court’s concerns relates to the nature of the materials submitted in

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support of her factual allegations. While Plaintiff does attach materials in support of her
Response, not only is there no affidavit or declaration authenticating the materials, but the
exhibits are never even identified, save Plaintiff’s “citations” in her Response, which
themselves are never more detailed than “Deposition transcript” (Docs. 63-1 through 63-4)
(hereinafter, “Pl.’s Dep.”), "Exhibit, Evaluations" (Doc. 64-4), "Exhibit, E-mails 1&2" (Docs.
64-1 & 64-2), "Mulkey affidavit" (Doc. 64-3), and "Exhibit, Write-ups" (Doc. 64-5). (Respon.
2-6.) For instance, Plaintiff relies very heavily on her own deposition, but there is no title
page that would actually indicate who was being deposed, and it was only from context that
the deponent became clear.
Of more concern to the Court, though, are Plaintiff’s actual citations or lack thereof,
which result in both paragraphs of wholly-unsupported factual presumptions and incredibly
lengthy citations essentially amounting to a data dump on the Court. Of the first eight
paragraphs in the “History” section, there is only one cite to any factual support, and that
cite supports only the sentence immediately preceding: “Barnes had worked there for about
six years and risen to the position of supervisor. Her work was well rated (See Exhibit,
Evaluations).” (Respon. 2.) All the other sentences in all those eight paragraphs,
constituting the vast majority of her factual background, are unsupported by any citation
to the record whatsoever.
But then the very next citation, to the unidentified deposition transcript, is the polaropposite, containing a string of cites totaling almost 140 (deposition) pages: “(see
Deposition transcript, pp12-16; 65-77; 153-166; 188-9; 15-2033; 204-11; 215-228; 230-49;

3

The Court presum es, given the deposition excerpts actually attached, that the this page range
("15-203") actually refers to "195-203."

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250-59; 262-3; 265-7; 276-85; 289-305; 306-11; 315-20).” (Respon. 3.) There are three
more groups of string cites that bring the total up to almost 200 pages. More frustratingly,
the Court reviewed all those page ranges, and it seems as though – even assuming that
that long cite was supposed to serve as the citation for all of the previous paragraphs –
many of them bear little to no relation to any of the sentence(s)(?) for which they are
offered in support. See, e.g. (Pl.’s Dep. 65-77) (discussing a variety of topics never
mentioned in her Response, let alone the preceding sentences, including: her potential
interest in becoming a dental technician, certifications she holds – including some incident
relating to certifications and paperwork lost by Mr. DenBleyker – even her service in the
Army.) Even some of the other exhibits, like “E-mails 1 & 2," total twenty-nine pages, and
the Court is supposed to review all those pages to see if they truly support the sentence
for which they were offered in support. Here, they were only cited once and for the
sentence “[t]heir actions were reflected in the e-mails between Mulkey, Hines and Ray
Reilly.” (Respon. 6.)
Finally, even when the sentence/citation resembles those usually found in briefs –
that is, the string of citations is not nearly as long and the sentence for which it is adduced
as support is clear– there are still problems insofar as the citation bears no relationship to
that sentence. For instance, in her Response, Plaintiff offers that “[a]ll she knew was that
there was something wrong and that it seemed to be racially motivated against her,” and
cites as support “(See Deposition transcript, pp. 340-3; 325-6; 328-38; 361; 369; 384; 3956).” Of those page ranges, though, 340-43, 325-26, 328-38 and 369 – more than 80% of
the 22 pages cited – contain no reference whatsoever to Plaintiff’s race or any relationship
it may have had to her termination.
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Accordingly, Plaintiff has failed almost entirely to “support [her factual] assertion[s]
by citing to particular parts of materials in the record," as is required by Rule 56(c)(1), both
because almost none of her assertions are accompanied by citations to the record and
because, when she does cite to the record, the citation is either so lengthy so as not to
constitute a citation to “particular parts of materials in the record or bears no relation to
the sentence for which it is offered as support. Despite this failure and despite the fact the
Court “need consider only the cited materials," this Court still made the effort to review
every page cited by Plaintiff and, to the extent possible, the following facts are viewed in
the light most favorable to Plaintiff.
B.

Plaintiff’s History with SRI from 2001 through 2007

Plaintiff began working for Defendant in October of 2001, likely on October 1, 2001,
as that is the date she signed an “Acknowledgment of Receipt” form indicating that she had
received and reviewed SRI’s Employee handbook. (Pl.’s Dep. 156; Reilly Aff. ¶ 6.) The
Employee handbook contained, among other things, SRI’s policies on reporting claims of
discrimination, its progressive disciplinary process, its safety policies, and instructions on
how to contact representatives within SRI’s Human Resources Department or, as an
alternative, the “Ethics Hotline” SRI had established. (Reilly Aff. ¶¶ 6-17 & Ex. 1,
Acknowledgment of Receipt Form signed by Barnes; Ex. 2, excerpts from the Employee
Handbook; Ex. 3, SRI’s Computer Hardware and Software Policy; & Ex. 4, an exemplar of
a posting regarding the Ethics Hotline.)
She was originally hired as an “instrument tech” at SRI, but within a month of her
hiring date, she was promoted to an “instrumentation supervisor,” although she did not
actually have any employees to supervise for some period of time. (Barnes Dep. 153-156.)
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When she worked as a tech, her hours were from 7:00 a.m. to 3:00 p.m., but, “as the work
picked up,” which occurred at some point during 2001, her schedule switched to have her
starting at 4:00 a.m. and ending “whenever [she] finished”; her hours changed again in
2007, shifting two hours later to beginning work at 6:00 a.m. to ending at 2:00 p.m. (Barnes
Dep. 155-157.)
When Plaintiff applied to SRI, she told John DenBleyker –the Plant Manager at
SRI’s Chattanooga facility from 1999 until 2007 – that she would be leaving her job with
Erlanger to work for SRI. (DenBleyker Aff. ¶ 5.) At Plaintiff’s request, he did not contact
Erlanger for a reference, but subsequently learned that Plaintiff did not in fact end her
employment with Erlanger. (Id. at ¶ 6.) Instead of leaving Erlanger, Plaintiff changed from
full-time to part-time. (Pl.’s Dep. 446.) She originally worked from 6:00 p.m. to 10:00 p.m.
at Erlanger, and then her hours changed from 3:00 p.m. to 9:00 p.m. (Pl.’s Dep. 163.) The
change in her schedule at Erlanger, when coupled with the change in her schedule at SRI
in 2007, occasionally interfered with her job at Erlanger; for instance, on the days she was
asked to work later in the warehouse, she had to call in to her job at Erlanger. (Pl.’s Dep.
192.) On May 29, 2007, Plaintiff requested a change in her work status – from part-time
to full-time – at Erlanger; the change was effected in June 2007. (Pl.’s Dep. 168.)
Plaintiff also testified that John DenBleyker is the only individual “that worked at SRI
in a management capacity . . . that [she] would trust [and] that [she] had a high opinion of,”
but Mr. DenBleyker’s testimony revealed that while he was Plant Manager, he had a
number of issues with Plaintiff’s performance that mirrored those at issue in her
discrimination claims.(Pl.’s Dep. 194.) For instance, he said that “[w]hile Ms. Barnes
exhibited good technical skills with instruments, she did not perform particularly well in
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managing and supervising others, and she sometimes exhibited a poor and negative
attitude.” (Id. at ¶ 9.) Not only did he personally find her sometimes difficult to get along
with, but he also received reports from employees, including the former Production
Manager Terry Nelson, her immediate supervisor4, that she was rude, disrespectful, and
insubordinate. (Id. at ¶¶ 9-10.) While DenBleyker “repeatedly counseled and coached Ms.
Barnes regarding her attitude and her interactions with other employees,” and “encouraged
her to improve her ability to get along with other staff members and employees,” which he
“noted . . . in the performance evaluations,” he reported that she “continued to struggle with
her attitude, controlling her temper, and interacting with others in a positive, professional
way.” (Id. at ¶ 11.)
Further, he “periodically discovered that Ms. Barnes was not properly ‘gowned out’
with personal protective equipment ("PPE") while in the soil sort area”; because she was
a supervisor, he found the violation particularly “egregious,” and “counseled and corrected”
her and “issue[d] her a written warning dated April 27, 2005.” (Id. at ¶ 12.) In addition, he
“experienced problems with Ms. Barnes failing to read and respond to her emails”; he
“counseled her about this issue” and “addressed that deficiency in [his] ‘note to file’ dated
April 27, 2005.” (Id. at ¶ 14; Doc. 57-3, Ex. 1 to DenBleyker Aff., Apr. 27, 2005 Note to
File.)
Mr. DenBleyker’s observations are substantiated not only by the performance
evaluations Plaintiff attached to her Response, but also by the April 27, 2005 note he wrote

4

This conflicts som ewhat with Plaintiff’s testim ony at her deposition that she “reported directly to Mr.
Denbleyker” and that he “rem ained [her] im m ediate supervisor until Donnie Mulkey was hired.” (Pl.’s Dep.
153.)

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to her file about her performance issues. (Doc. 64-4, Respon. Ex. “Evaluations”; Apr. 27,
2005 Note to File.) In that note, DenBleyker laid out four main areas of concern:
(1)

ensuring her products were correct;

(2)

“mak[ing] sure that [she was] properly dressed for that area [for the cleaning
of the instruments]”;

(3)

that, as management, she “will be held responsible for [her] areas and [her]
people” and because the mistakes made by employees that worked for her
are “a reflection on you and ultimately your responsibility,” he “need[ed her]
to take on the role of being a manager”; and

(4)

that “[o]ne big complaint from the home office is that you never read your emails” – which “is very important” since “[t]hey can tell if it is unopened” – and
that “[her] feed back is important.

(Apr. 27, 2005 Note to File.)
Finally, he stated that during the period at issue in her Complaint, she “complained
to me that Mr. Hines was insisting that SRI's rules and procedures be strictly followed, [but]
she never claimed to me that any rules or procedures were being improperly enforced or
implemented,” but rather seemed to be complaining that “Mr. Hines was demanding more
of the employees of the Chattanooga facility than [DenBleyker] had and was enforcing the
rules more strictly than [he] had.” (Id. at ¶ 16.)
C.

2007 Overhaul of the Management of the Chattanooga Plant

Ray Reilly, the Vice President of Human Resources & Client Relations, is currently
the highest-ranking human resources official at SRI. (Reilly Aff. ¶ 3.) He was hired as the
Director of Human Resources on April 23, 2007 – near the beginning of the events in the
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Complaint – before being promoted to Senior Director of Human Resources &
Organizational Development; at all relevant times he has worked at SRI’s corporate offices
in Tampa, Florida, although he visited the Chattanooga plant at least once and met with
Plaintiff. (Id. at ¶ 3.) Reilly said SRI monitored compliance with its policies, including its
anti-discrimination policies, through monthly conference calls with Plant Managers and
similar calls with the individual Human Resources (“HR”) administrators at its facilities. (Id.
at ¶¶ 18-19.) Reilly also said that the individual plant HR administrators are directed to
forward any complaints on to the corporate HR Department, which stays actively involved
in all corrective counseling and discipline, and that, during the relevant time periods, he
“personally participated in all constructive counseling and disciplinary process involving
salaried employees,” which Plaintiff was.(Reilly Aff. ¶¶ 21-22.)
In early 2007, SRI decided to change the way the Chattanooga plant was run,
including its management; Reilly describes that process as follows:
In early 2007, as a result of changes in SRI's Chattanooga
facility in 2007, SRI decided to change leadership of that
facility by replacing its Plant Manager, John Denbleyker, and
also by hiring Production and Distribution Managers. The focus
and purpose of these changes was to improve the
performance of the Chattanooga facility and to ensure that
SRI's rules and policies were being properly implemented and,
in some cases, followed more closely than had previously been
the case. In addition, soon after my joining SRI, I began
frequently communicating and working with the leadership at
the Chattanooga facility to achieve these goals and objectives.

(Reilly Aff. ¶ 23.)

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Effective April 1, 2007, Andrew Hines replaced John DenBleyker5 as the
Chattanooga Plant Manager,6 and on April 30, 2007, Donnie Mulkey was hired as the new
Production Manager and Sharlene Johnson was hired as the new Distribution Manager.
(DenBleyker Aff. ¶¶ 3, 15; Reilly Aff. ¶ 24; Johnson Aff. ¶ 3.) Mulkey began corresponding
with Reilly regularly on May 23, 2007, including about Plaintiff’s behavior, although many
of the conversations did not include Andrew Hines. (Reilly Aff. ¶ 24.)
D.

Plaintiff’s Performance and May 19, 2007 Charge of Discrimination

Plaintiff alleges that all her problems began with the hiring of Andrew Hines and
Donnie Mulkey. (Pl.’s Dep. 207.) Hines, Mulkey, and Johnson likewise appear to have had
significant problems with Plaintiff’s performance almost immediately upon their respective
arrivals at SRI.
For instance, on April 11, 2007, Hines sent Plaintiff a memorandum, which he also
discussed with her, in which he said:
It has come to my attention, via: my observations that you are
not putting in the hours required for management According to
you, your start time is 4a.m. and today is [sic] saw you leave
before 11 a.m. Monday and Tuesday you were gone by noon
exact time undetermined. I find this practice to be
unacceptable and expect it to cease immediately. If you are
lacking things to do and need additional assignments, please
see me.

5

DenBleyker had served in that capacity since August 17, 1999 and becam e the Account Manager
at the Chattanooga Plant upon Mr. Hines’s arrival. (DenBleyker Aff. ¶¶ 3, 15.)
6

In her deposition, Plaintiff states that she thinks that Hines arrived “m aybe a m onth before Mr.
Mulkey and Johnson,” and agreed (“[s]om ething like that”) with counsel’s suggestion: “February, March,
som ewhere in that tim efram e?” (Pl.’s Dep. 203.) Because Mr. Reilly’s affidavit sets forth dates certain for
those arrivals and because those dates correspond with Plaintiff’s understanding of the length of tim e between
Hines’s arrival and Mulkey’s arrival, the Court will use Reilly’s dates. This is particularly appropriate given Mr.
Reilly’s position and access to such inform ation and since Plaintiff acknowledged she was unclear on the
precise dates and conceded in her deposition that she had gotten the dates in her first THRC charge wrong.

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(Barnes Dep. 367; Doc. 57-1 at page 125, Ex. 23 to Barnes Dep., Apr. 11, 2007 Mem.)
Donnie Mulkey issued his first Employee Warning Notice (“Warning”) to Plaintiff for
violations of company policies or procedures and safety rules on either Friday, May 4, 2007
or Monday, May 7, 2007. (Doc. 64-5, Respon. Ex. “Evaluations” 4.) He said that on May
3, 2007 at 4:15 a.m., Plaintiff “was in the soil sort room without proper PPE Protection.”
(Id.) On the form, Plaintiff checked the box indicating that she disagreed with his
description of the violation and wrote that “[a]ctualizations against me are flase [sic]
therefore I disagree with the above statement. My warning was on 5/7/07 not on 5/4/07.”
(Id.) She dated her signature 5/8/07, but the routing information (signed by Chattanooga
HR Administration Barbara Ridge) is dated 5/7/07. (Id.) Mulkey also wrote on the form that
she “stated she was at transition area, not in middle of room” and that she refused to sign
it, and he initialed these comments and dated them 5-7-07. (Id.)
After this warning, on May 19, 2007, she filed a Charge of Discrimination with the
Tennessee Human Rights Commission. (Pl.’s Dep. 207; Doc. 57-1, 1st THRC Charge of
Discrimination (“1st Charge”).) In that Charge, she alleged that she was harassed,
intimidated, and retaliated against between March 16, 20077 and May 7, 2007, and referred
to three incidents in particular: (1) the change in her hours and schedule; (2) the allegation
that she was in soil sort without wearing PPE8; and (3) the decision to change office

7

Plaintiff conceded in her deposition that she now believed she wrote the wrong date down for the
beginning date and clarified that, as the beginning date, she was referring to the m eeting between herself and
Mr. Hines in which he changed her work hours. (Pl.’s Dep. 374-75.)
8

She described the second of the three allegedly discrim inatory acts – labeled “Oral w arning” – as
referring to an oral warning she received on May 7, 2007 for "not wearing proper protection attire in the
transition area in which I work in," i.e. no PPE in the soil sort. (1st Charge ¶ 4(b).) She com plains that "[she]
was not given a copy of the oral warning and had to ask for it from HR and was initially told that I could not
have a copy of it," and justified her refusal to sign it by saying that "because the statem ent m ade by the Plant

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assignments. (Barnes Dep. 376-77, 395-96.)
As to the first of the allegedly discriminatory acts – captioned “Change of
hours/schedule” – she argued that Hines "changed the work schedule that I had been
working for almost six years but did not change the work schedule of other employees at
the same level/job title that I have." (1st Charge ¶ 4(a).) She also argues that Hines's
statement that "he observed me leaving early on two days in particular" was "not fact." (Id.)
As to the second of the allegedly discriminatory acts – captioned "Oral warning" –
she stated that she received an oral warning on May 7, 2007 for "not wearing proper
protection attire in the transition area in which I work in," i.e. no PPE in the soil sort. (1st
Charge ¶ 4(b).) She complains that "[she] was not given a copy of the oral warning and had
to ask for it from HR and was initially told that I could not have a copy of it," and justified
her refusal to sign it by saying that "because the statement made by the Plant Manager
regarding my protective attire is not fact and I did not agree with his statement so I did not
sign it." (Id.)
As to the third of the allegedly discriminatory acts – captioned “Office Space/Staff
Meeting” – she argued that she had “been in [her] office space for four years,” and that
when Hines started, he told her that she “would have to move . . . because he said that he
needed additional office space for two additional people they hired.” (1st Charge ¶ 4(c).)
She alleges that she was told this “verbally” and that this verbal notice was followed up by
“a memo . . . to the staff,” but that she discovered “at a staff meeting shortly thereafter,”
that “the memo that I received that was to the staff was only actually given to me and the

Manager regarding m y protective attire is not fact and I did not agree with his statem ent so I did not sign it.”
(1st Charge ¶ 4(b).)

-16-

other black supervisor.” (Id.) She said that there were “two office spaces vacant where he
could have put the two new hires,” but only she and another black supervisor were told
they would have to move, with no Caucasian supervisors being told the same thing. (Id.)
Reilly said – and Plaintiff confirmed – that Plaintiff “had never before reported to SRI
that she believed she had been discriminated against, and the filing of this Charge was
SRI's first notice of any such concern.” (Reilly Aff. ¶ 27; Pl.’s Dep. 371.) Reilly personally
investigated her claims and, as part of that investigation, visited the Chattanooga plant on
June 6, 2007 to meet “in person with Ms. Barnes, Andrew Hines, Mr. Mulkey, Barbara
Ridge [Chattanooga HR Administrator], and others regarding Ms. Barnes' allegations and
regarding the complaints and concerns about Ms. Barnes' job performance and conduct
repeatedly conveyed to me by Mr. Mulkey.” (Reilly Aff. ¶¶ 28-29.) Reilly heard numerous
complaints about Plaintiff from both supervisors – Andrew Hines, Barbara Ridge, Donnie
Mulkey, Dottie Lucas, Quality Assurance Manager, and Lonnie Teague, Maintenance
Manager – and employees – Shawanna “Cherry” Sutton and Marcy Jackson. The
supervisors all related the same concerns about Plaintiff: “that she was not working enough
hours, that she was leaving work before she should, that she was refusing to carry out
assigned duties, and that she was exhibiting a negative·and hostile attitude and demeanor
. . . confirm[ing] . . . Mulkey’s reports in this regard.” (Id. at ¶ 30.) The employees’
complaints related to Plaintiff’s “attitude, conduct and demeanor, and her performance as
a supervisor,” and are substantiated by contemporaneous letters from both employees. (Id.
at ¶ 31; Collective Ex. 5 to Reilly Aff., June 13, 2007 letter from Cherry Sutton & June 13,
2007 letter from Marcy Jackson.)
Plaintiff does not believe that Reilly was going to talk to her at all, stating that:
-17-

He came to Chattanooga to talk to the other supervisors. The
only reason why he talked to me was an incident took place
and I called the main plant and talked to Renee, and she told
me that Mr. Reilly was in the plant. And she called and talked
to him, and he paged me to the conference room. That's the
only reason why I got a chance to talk to him.
(Pl.’s Dep. 198.) Upon further questioning, however, she admitted that this belief was just
based upon the fact that he had not called or arranged in advance to meet with her. (Id.
at 199.)
She talked with him for about thirty minutes, but the focus of the conversation for
her was her request to “resign,” that is, to step down from her salaried position to an hourly
position as a CS tech, which would no longer require her to be a supervisor. (Pl.’s Dep.
195-96; Reilly Aff. ¶ 38.) Reilly said – an account she confirmed in her deposition – that:
With regard to her desire to change her position of
employment, I told her that SRI would consider her request
based on its available positions. I told her that she would need
to convey her request to me in writing, and I gave her my
business card -which conveyed all of my contact information
-so that she would know how to reach me and so that she
could convey her request for a position change should she
decide she wished to do so. Ms. Barnes never conveyed this
request to me, and I did not hear anything further from Ms.
Barnes on this issue or on any other issue.
(Pl.’s Dep. 196-98; Reilly Aff. ¶ 38.)
E.

Post-Charge Performance Warnings

On June 6, 2007, Mulkey emailed Reilly about Plaintiff’s refusal to help in the
warehouse, her complaints to other employees about her writeups, her continued early
departures, and her general disrespect. (Reilly Aff. ¶ 39.) Reilly helped Mulkey prepare a
“Constructive Counseling - Written Warning,” which Mulkey delivered to Plaintiff on June

-18-

7, 2007. (Doc. 57-2 at 39-40, Ex. 10 to Reilly Aff., 6/6/07 Written Warning.)9 A handwritten
note below the space for her comments and signature – signed by Donnie Mulkey and
dated June 7, 2007 – indicated that she “refused to sign” and “want[ed] a copy for her
records.” (Id.)
On June 11, 2007, Ridge emailed Mulkey to let him know that Plaintiff had been
absent four times – 2/19, 4/24, 4/25, and 6/8 – and was “due a verbal for attendance.”
(Doc. 57-2 at 42, Ex. 12 to Reilly Aff., June 11, 2007 email from B. Ridge to D. Mulkey.)
Mulkey issued the Warning on June 12, 2007 (misdated June 13, 200710), and while
Plaintiff did not complete the employee statement section, she did sign the
acknowledgment that she had read and understood the warning. (Id.) That same day, she
also received a written warning related to her violations of SRI’s computer policies.(Doc.
57-2 at 44-45, Ex. 14 to Reilly Aff., 6/13/07 Written Warning.) As with the June 7 letter,
below the space for her comments and signature was a handwritten note signed by Donnie
Mulkey and dated June 13, 2007 indicating that she “refused to sign.” (Id.)

9

Mulkey’s written warning to Plaintiff said that “as a result of recent perform ance and behavior issues
. . . [in]consistent with the expectations of any em ployee at SRI Surgical.” (Doc. 57-2 at 39-40, Ex. 10 to Reilly
Aff., 6/6/07 W ritten W arning.) The letter indicated that “over the past week, [he] ha[d] becom e aware of the
following perform ance and behavior issues” including “[i]nappropriate conduct as a supervisor,” that is, that
she was “out in the plant talking with other hourly em ployees about the constructive counseling, inform ing
them that m anagem ent does not care about them .” (Id.) He also said that “[o]n 5/31/07 I com m unicated to you
that it is m y expectation that you 'pitch in' and help the team com plete the assignm ents in the facility” –
specifically that he “instructed [her] to help out in the warehouse when [she was] done with [her] work – and
yet “[n]ot only have you not helped out, you have continued to leave prior to the em ployees for which you are
responsible for have com pleted their work,” which “took place as recently as Monday June 4.” (Id.) He
concluded the letter by noting that “[t]hus far, I have not seen any effort dem onstrated on your behalf to
function on behalf of the com pany and m eet the perform ance expectations we have discussed,” and that “[i]n
the event that we continue to experience issues relating to your perform ance and/or conduct, further
disciplinary action will result up to and including term ination of em ploym ent.” (Id.)
10

On June12, 2007, Mulkey em ailed Ridge, asking her to put the warning in Plaintiff’s file and
discussing the problem s in getting Plaintiff to sign the form ; the date of the em ail confirm s the accuracy of
Plaintiff’s date and that the form is m isdated.

-19-

On June 22, 2007 and June 25, 2007, Mulkey sent Plaintiff three emails about timesensitive issues with certain orders; according to Mulkey, Plaintiff did not respond and did
not perform the requested tasks. (Reilly Aff. ¶¶ 44-45.) Mulkey, very frustrated by Plaintiff’s
behavior, contacted Reilly, who helped him prepare another Written Warning related to her
failure to respond to emails and perform the requested tasks promptly. (Id. at ¶ 47; Doc.
57-2 at 53-54, Ex. 17 to Reilly Aff., 7/2/07 Written Warning.) Even before Mulkey met with
Plaintiff, Reilly advised him that “[i]n the event that she requests to have a witness present,
we should deny that based upon the negative outcome from the last time we afforded her
that opportunity (talking in the plant afterwards with other hourly staff members).” (Doc. 641, Respon. Ex. “Emails 1&2" at 13, 7/2/2007 e-mail at 9:50 a.m. from Reilly to Mulkey,
cc’ing Hines and Peterson.) Reilly did note that Mulkey “certainly should have another
member of the team present, preferably a female if possible.” (Id.; Reilly Aff. ¶¶ 48-49; Pl.’s
Dep. 327-29.) While the circumstances surrounding her refusal to participate in the
meeting are contested, it is not contested that on July 2, 2007, Mulkey attempted to issue
this written warning to Plaintiff and that she did not want to participate in the counseling
without her own witness. (Reilly Aff. ¶ 48; Pl.’s Dep. 327-29.) When informed that was not
an option, it came about that she was suspended, but Plaintiff refused to leave without
something in writing, which she received. (Reilly Aff. ¶¶ 50-51; Pl.’s Dep. 331-32.)
Reilly was the only individual who could terminate Plaintiff, and he was the one who
made the final decision to do so. (Reilly Aff. ¶¶ 54-57.) Reilly stated that:
In the hours following these events, I communicated by
telephone and/or by email with Donnie Mulkey, Andrew Hines,
Barbara Ridge, and Sharlene Johnson regarding the attempted
counseling session,” and that “each separately confirmed to
me that Ms. Barnes was grossly insubordinate, defiant, and
-20-

hostile, and that she adamantly refused to participate in the
counseling session. Everyone with whom I spoke made clear
to me that Ms. Barnes' conduct during this attempted meeting
was consistent with her prior conduct and was inappropriate,
disrespectful, and insubordinate. Mr. Mulkey again
recommended Ms. Barnes' termination, Andrew Hines
concurred with that recommendation, and no one voiced any
concern or opposition. . . . Based on these reports and this
information, and based on my review and analysis of Ms.
Barnes' job performance and conduct, I approved Mr. Mulkey's
recommendation that Ms. Barnes' employment with SRI be
terminated, made the decision to terminate her employment,
and authorized and directed her termination.
(Reilly Aff. ¶¶ 53-54.)
Mulkey called Plaintiff and asked her to report back to work that day; for a variety
of reasons, she could not, and so she reported back the next day, July 3, 2007. (Pl.’s Dep.
338-40.) At that time, Mulkey terminated Plaintiff for being insubordinate and gave her a
copy of the termination notice. (Pl.’s Dep. 340-44.)
Plaintiff at no point contests Mr. Reilly’s account of his role in the disciplinary
process, merely arguing that Mulkey alone was responsible for harassing her, but that she
“blame[s] SRI, too, because they had to know what was going on,” and that she is “blaming
Mr. Reilly because he knew . . . [a]nd Mr. Hines [because b]y him being the plant manager,
he knew what was going on . . . .” (Pl.’s Dep. 13-16.) Plaintiff says that she “only talked with
[Reilly] one time” when she asked him about “[s]tep[ping] down from a supervisor to a
tech.” (Pl.’s Dep. 195.) “Reilly gave [her] his business card while [she was] in Chattanooga
with him,” but she did not “ever contact Mr. Reilly to say to him that [she was] concerned
about writeups [she was] receiving or that [she] thought [she was] the victim of retaliation,”
nor did she “ever communicate those facts to anyone at SRI before you filed the retaliation
charge.” (Pl.’s Dep. 416.)
-21-

The procedural history of this case and the instant motions has already been
recounted in detail above; this matter is now ripe for review.
III.

ANALYSIS
A.

Motion to Strike the “Affidavit” of Donnie Mulkey

Well after the instant motions were filed and in his Response to the motions for
summary judgment, Plaintiff filed – and relied heavily upon – the so-called “Mulkey
Affidavit” (Doc. 64-3). This document carries the caption of this action and the heading
“Affidavit of Donnie Mulkey” and contains a series of unnumbered paragraphs containing
statements related to Mr. Mulkey’s employment with Defendant and his termination of
Plaintiff. (Id.) It begins with the statement “[a]fter being duly sworn, Donnie Mulkey deposes
and says . . .” and ends with “[f]urther the deponent sayeth not.” (Id. at 1, 3.) The document
is entirely typewritten, save the following five handwritten parts on the final page:
(1)

where “left” is written above a stricken-through “was fired”;

(2)

following the “further the deponent sayeth not” language, an undated
signature appearing to read “Donnie L. Mulkey”;

(3)

a handwritten note that closes with the same apparent Mulkey signature
stating that “I also swear that my statement to the Human Rights
Commission are true and correct”;

(4)

“28" in otherwise typewritten “this [space] Day of February, 2011"; and

(5)

the signature and stamp of Notary Public Jennifer L. Berz, along with a
handwritten note that her commission expires “November 21, 2012.”

(Id. at 3.)

-22-

Defendant states that, at first, it believed Plaintiff’s representation that the Mulkey
Affidavit was the sworn, notarized statement it purported to be on its face. (MSJ Reply 3;
Strike Mem. 2.) Upon seeing that the statements contained therein differed substantially
from statements made to it by Mulkey previously, which lead SRI to have a “good faith
belief—a belief based, in part, upon the documents exchanged in discovery and upon
Mulkey’s prior statements regarding the Plaintiff while in the employ of SRI—that most, if
not all, of the material statements made by Mulkey in his affidavit either are affirmatively
false or are grossly misrepresentative of the actual facts in this case.” (Doc. 67, Def.’s Mot.
to Extend Deadline for Filing Reply Brief and for Permission to Take the Deposition of
Donnie Mulkey, 2.) Defendant, therefore, sought – and received, from Magistrate Judge
Carter – an extension of the reply deadline and leave to depose Mulkey. (Id.; Doc. 74,
Magistrate Judge Carter’s March 8, 2011 Order.) Defendant’s counsel deposed Mulkey on
March 25, 2011 and, as noted above, eventually filed its Summary Judgment Reply Brief
(Doc. 83) on April 1, 2011, in which it sought to have the Mulkey Affidavit stricken and
asked the Court to consider imposing other sanctions imposed pursuant to Rule 56(h).
(MSJ Reply 5.) They requested the same relief – premised upon the same grounds – in
their later-filed Motion to Strike the Purported Affidavit of Donnie Mulkey, to Preclude
Plaintiff from Relying upon the Deposition Testimony of Donnie Mulkey, and for Other
Appropriate Sanctions (Doc. 96), filed on April 28, 2011.
Plaintiff opposed the requested relief in both her Surreply, filed April 15, 2011, and
her Response to the Motion to Strike (Doc. 100) (“Strike Repson.”), filed May 20, 2011,
although she did not make any legal argument or cite any legal authority in support of her
arguments. Instead, she largely accused Defendant’s counsel of entering into an illegal
-23-

agreement with Mulkey either to prevent his testimony or to proure his false testimony; of
lying to this Court – despite never seeking review of Magistrate Judge Carter’s Order
allowing Defendant to take the deposition; and of engaging in witness intimidation – despite
never bringing any such objections to the Court’s attention, either at the time of the
deposition or by specific cite to such objections in the transcript of the deposition. (Surreply
2-3; Strike Respon. 2-4.) She also attached to her Surreply a copy of a few pages from the
Mulkey deposition in which Mulkey reiterated the veracity of the statements made in the
purported affidavit. (Doc. 94-1, Mulkey Dep. 304-311.)
The Court can discern a general timeline of the events leading to the creation and
abortive execution of the Mulkey Affidavit from its own docket, the parties’ briefing on this
issue, and the limited excerpts of the Mulkey Deposition they attach to that briefing.
As an initial matter, it is important to note that Mr. Mulkey has his own history of
litigation with Defendant SRI Surgical Express, Inc. Without going into unnecessarily
extensive detail, the end result of the litigation of Mulkey’s own claims against SRI was that
those claims were dismissed with prejudice due to his failure to prosecute his case two and
a half months before the time period relating to the Mulkey Affidavit.11

11

On January 4, 2008, m ore than a year and a half before Plaintiff filed the instant action on August
5, 2009, Mulkey – along with another individual whose nam e com es up frequently in this lawsuit, Faye
Sanders, the other African Am erican supervisor – filed his own lawsuit in this Court against SRI. See (Mulkey
v. SRI Surgical Express, Inc., 1:08-cv-4, Doc. 1, Com pl.) (“Mulkey Com pl.”) In that com plaint, Mulkey alleged
that Defendant discharged him in retaliation for his com plaining about and resisting its racially-m otivated
attem pts to fire Plaintiff and Ms. Sanders in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000(e) et seq. (Mulkey Com pl. ¶¶ 15-30.) Ms. Sanders settled her claim s against SRI and stipulated to their
dism issal with prejudice on Decem ber 30, 2009. (Mulkey, 1:08-cv-4, Doc. 35, Stip. of Dism issal with
Prejudice.) After several delays and am endm ents to the scheduling order, Mr. Mulkey’s attorney, together with
Defendant’s attorneys, notified the Court on July 1, 2010 that they had settled the m atter, and the Court issued
an Order (Doc. 53) on July 14, 2010, putting the parties on notice that it would dism iss the action with
prejudice if they did not file a stipulation of dism issal or agreed final order within 30 days. Thereafter, Mulkey
repeatedly called the undersigned’s cham bers saying he did not want to settle the m atter; his counsel
eventually withdrew his representation and Mulkey repeatedly failed to respond to the orders of the Court,

-24-

Around the beginning of February 2011 – Plaintiff’s counsel, Charles Dupree, called
Mr. Mulkey, and the two spent five to ten minutes discussing Mulkey’s version of events
and, it seems, a potential affidavit Dupree wanted Mulkey to execute. (Mulkey Dep. 35, 37.)
About a month later – “[a]round the first of March . . . [the f]irst of this month sometime” –
Mr. Dupree contacted him again and, after “play[ing] phone-tag pretty much all day,”
Dupree and Mulkey “met in the parking lot of the McDonald’s in Ringgold[, Georgia,] for the
purpose of [Mulkey] executing an affidavit that Mr. Dupree had prepared.” (Mulkey Dep.
37-38.) During that meeting – in which only Mulkey and Dupree participated and which
lasted about ten minutes – Dupree presented Mulkey with a draft of the affidavit, asked
Mulkey to write on the document that “I swear that the testimony on the — everything in
this affidavit is true”; the copy of the affidavit filed with the Court does not contain such
language. (Mulkey Dep. 38.)
Next, Dupree called a woman not known to Mulkey, before giving the phone to
Mulkey and instructing him to leave a voicemail saying that “[he] was Donnie Mulkey and
[he] did sign the affidavit and [he] swear[s] that everything in that affidavit was true.”
(Mulkey Dep. 38-39.) Dupree’s examination of Mulkey during his deposition seemed to
indicate that the unidentified woman for whom he left the message was Jennifer Berz,
Dupree’s daughter and the Notary Public who purported to witness the affidavit’s
execution. (Mulkey Dep. 306) (Q: And, at the time that you signed it, you also called my
daughter, who is a notary, on the telephone and swore to the – was that the telephone call

resulting in his action being dism issed with prejudice on Novem ber 17, 2010. (Mulkey, 1:08-cv-4, Doc. 62,
Nov. 17, 2010 Mem . & Order.)

-25-

that you were saying that you swore to your signature on the affidavit?" A: Yes. You
actually – but you actually called and handed me the phone.”) No one else was present
besides Dupree when Mulkey signed the “affidavit” and, when he signed it, he neither
raised his right hand nor swore in the presence of a person who could administer oaths.
(Mulkey Dep. 39-40.)12
Even assuming all facts and inferences in the light most favorable to Plaintiff, the
procedural deficiencies and factual inconsistencies apparent on the face of the “Mulkey
Affidavit,” together with the false statements made therein, are so significant as to render
it incompetent evidence and inadmissible, such that the Court must exclude the document
from its consideration of the motions for summary judgment pursuant to Rule 56(c)(4).
Defendant argued – first in its “Supplemented Reply to Plaintiff’s Response to Its
Motion Summary Judgment” [sic] and then in its Motion to Strike – that the “Affidavit of
Donnie Mulkey” (Doc. 64-3), upon which Plaintiff relied so heavily in her Response to
Defendant’s motions for summary judgment and which she attached to that Response, was
wholly unreliable and failed to meet the requirements of an “affidavit,” let alone an affidavit
or declaration as discussed in Rule 56(c)(4). Defendant’s arguments are compelling, in
large part due to the significant evidence introduced in support and the persuasive citation
of relevant legal authority. As to the first point, the factual evidence, Defendant introduced
proof – in the form of excerpts from the transcript of its March 25, 2011 deposition of
Donnie Mulkey (Doc. 83-1) – that, contrary to the statements made on the affidavit’s face:

12

Ms. Berz, in particular, could not have been present, no m atter how one looks at it. Given that
Mulkey previously indicated that he had left the wom an a voicem ail, not spoken to her in real tim e, she cannot
claim she “witnessed" it by phone. Further, there is no indication that she had verified his identity in any
fashion, and there is significant evidence that Mulkey was not personally known to her.

-26-

(1)

Mulkey was not sworn when he made the statements in question;

(2)

those statements were not “sworn to and subscribed before” the notary,
Jennifer Berz,” as Mulkey never appeared before Ms. Berz; at best, she was
the unidentified woman for whom he left the voicemail message;

(3)

to the extent the “affidavit” embodied “statements . . . subscribed before” Ms.
Berz, they were not made in Hamilton County, Tennessee – the only place
where Ms. Berz’s commission is valid – as Ms. Berz represented they had
been, but rather in Ringgold, Georgia – where Dupree met Mulkey for the
purpose of having Mulkey sign the “affidavit” Dupree had prepared.

(Doc. 83-1, Mulkey Dep. 37-40.)13

13

In addition to these significant irregularities, there is a discrepancy between the date Ms. Berz
represented it was executed – February 28, 2011 – and the date Mr. Mulkey believed he had signed it, March
1, 2011. (Mulkey Dep. 25.)
Although M ulkey seem ed fairly certain that he signed the docum ent in March – “around the first of
March” and “[f]irst of this m onth som etim e. I can’t rem em ber the exact date” – norm ally, of course, the Court
would accept the date provided by the notary and treat the possible one-day discrepancy as a m inor conflict.
The Court is aware that “ there is a legal presum ption that a notary public notarizing a deed has acted lawfully”
because “[a] notary's acknowledgm ent says to the world that the execution of the instrum ent was carried out
according to law.” Estate of W ooden v. Hunnicutt, 2005 W L 2546918,*3 (Tenn. Ct. App. Oct. 11, 2005) (citing
Manis v. Farmers Bank of Sullivan Cnty., 98 S.W .2d 313 (Tenn. 1936) and Beazley v. Turgeon, 772 S.W .2d
53, 59 (Tenn. Ct. App.1989)). But, as com m on sense dictates and as was m ade clear in Estate of W ooden,
“the presum ption that a notary public has perform ed her duty does not prevail over contrary proof.” Id. (citing
Manis, 98 S.W .2d at 314).
The circum stances of this case m ilitate against extending such a presum ption of legitim acy to the date
the docum ent was signed and raise further questions in the Court’s m ind about the m anner in which this
docum ent was executed. For instance, the Court observes that the m onth and year were already typewritten
and Ms. Berz filled in only the date in her own handwriting. Also of interest is the urgency of both Plaintiff –
who had not spoken to Mulkey since he had term inated her eight m onths before, but who called him that day
because “she wanted [Mulkey] to – that Mr. Dupree was looking for m e to sign som e paperwork” – and her
counsel in ensuring this docum ent was signed that day, which was the sam e day it was filed with the Court
at 4:29 p.m . on March 1, 2011. (Mulkey Dep. 35, 37, 43.) Given Ms. Berz’s (apparent) total failure otherwise
to abide by the statutory duties placed upon a notary, the Court notes that there is an obvious possibility that
the docum ent was signed on March 1 but Berz sim ply filled in the date, rather than crossing it out and writing
the correct date, to avoid calling the legitim acy of the docum ent into question. Given the other issues with the
“affidavit,” this line of inquiry is not necessary to the Court’s determ ination of the m otion to strike, but it is a
m atter the Court will discuss with the parties at the hearing.

-27-

Although Defendant’s motions to strike and for sanctions were well-supported both
factually and legally, Plaintiff makes absolutely no legal argument in response, even just
in relation to the affidavit’s sufficiency, legality, or legitimacy, instead repeatedly referring
to the document as a “sworn statement” given during a “sworn deposition,” despite the fact
that no oath was ever administered to Mulkey. While, pursuant to 28 U.S.C. § 1746, a
formal affidavit is no longer required and a party may substitute an unsworn declaration,
such a declaration still must be made “in writing of such person which is subscribed by him,
as true under penalty of perjury, and dated, in substantially the following form: . . . ‘I declare
(or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.
Executed on (date). (Signature)’.” 28 U.S.C. § 1746. Therefore, even if this Court were to
consider it a declaration, it would still be insufficiently verified, as it was written by Mr.
Dupree, not Mr. Mulkey, as it was not dated, and as it did not contain a “under penalty of
perjury” certification.
Accordingly, Defendant’s Motion to Strike the Purported Affidavit of Donnie Mulkey,
to Preclude Plaintiff from Relying upon the Deposition Testimony of Donnie Mulkey, and
for Other Appropriate Sanctions (Doc. 96) will be GRANTED, and the Court will not
consider the Mulkey “Affidavit” (Doc. 64-3) in deciding the pending dispositive motions.
As a final note, the Court observes that the circumstances outlined in Defendant’s
motions and Mulkey’s deposition raise substantial concerns about the candor toward the
tribunal of both Attorney Dupree and Notary Public Jennifer Berz.
At a minimum, and leaving aside the concerns about the date the affidavit was
executed, Ms. Berz appears to have grossly misstated the case in offering that the affidavit
was “[s]worn to and subscribed before me,” as no one seems to contend that it was indeed
-28-

signed before her. Although the issue has not been address in depth by courts in
Tennessee, there do appear to be some very limited circumstances in which a notary could
possibly perform her duties over the phone, such as where the notary is extremely familiar
with the voice of the affiant or declarant, such that she has personal knowledge that
individual is who he or she states he is; this situation is not one of those limited
circumstances, even if affidavits could be notarized by telephone.14 The Court is concerned
not only about candor to the Court in this particular action, but that Ms. Berz may have
violated her oath of office that she would "without favor or partiality, honestly, faithfully, and
diligently discharge the duties of notary public." Tenn. Code Ann. § 8-16-405. It seems
difficult to believe that she reasonably entertained the belief that this method of notarization
was acceptable; any of a number of sources clearly outlines the nature of requirements of
an affidavit and her duties relating to the same; no oath was administered, she never
actually saw or spoke to Mr. Mulkey, let alone verified his identify when notarizing the
affidavit, the document was not signed before her, and it was executed in a place where
she was not empowered to act.15
14

See, e.g., Estate of W ooden, 2005 W L 2546918 at *3 (citing Beazley, 772 S.W .2d at 60) (“a notary
public takes an oath of office when a com m ission is issued or renewed, and in order to perform as the oath
requires, it is necessary for the actor to appear personally before the notary . . . ”) and Montgomery v.
Montgomery, 1989 W L 105645 (Tenn. Ct. App. Sept. 13, 1989) ("The trial judge found that the alteration was
m ade at the direction of the defendant, who then reaffirm ed his oath to the agreem ent in a telephonic
statem ent. Unlike acknowledgm ents which require personal attendance before a notary, we know of no rule
or statute which prohibits the adm inistration of an oath by telephone, although the better practice is
confrontation by the notary of the affiant.")
15

For instance, the Tennessee Notary Public Handbook describes an affidavit as follows:

An affidavit is a sworn statem ent m ade by a person called an affiant. The affiant makes oath
before a notary public that the facts contained in the affidavit are true. The affidavit consists
of the venue, body, affiant’s signature, and jurat. Venue indicates the place where the
affidavit is m ade or taken and must be a place where the notary is empowered to act.
The body of the affidavit is preceded by an introductory sentence, contains a short
description of the affiant and the capacity in which he or she is taking the oath, and then it

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Of equal, if not more significant, concern is Mr. Dupree’s apparent lack of candor.
In calling the voicemail of his daughter/notary public and directing Mr. Mulkey to leave a
message swearing the truthfulness of the statements contained in the affidavit –
statements such as that Mr. Mulkey was sworn before “depos[ing]” – that no one disputes
are false, he seems to be encouraging, facilitating, and coordinating two separate
individuals’ making false statements to this Court. Further, he did so as an officer of the
Court and in pleadings signed pursuant to Rule 11. The irony of doing so while failing to
defend the legitimacy of the affidavit and repeatedly accusing Defendant’s counsel of lying
to the Court and “gamesmanship” is not lost on the Court.
The Court further observes that this is not the first time Plaintiff’s counsel has been
less-than-diligent in performing his professional responsibilities and ethical obligations.
Within the past five years, Attorney Dupree (Tennessee BPR #002177) has been censured
twice by the Tennessee Board of Professional Responsibility, once on July 16, 2007 for
failing to ensure that an order reducing his client’s child support obligation was properly
entered, and again on April 28, 2009 for failing to exercise reasonable diligence in failing
to inform the Court and opposing counsel of a scheduling conflict, such that he failed to
appear at a hearing “at which contested discovery motions that were critical to his clients’
interests were set to be heard.” See (Releases of Information re: Charles Patrick Dupree,

contains the facts the affiant swears are true. The affiant’s signature is subscribed at the end
of the affidavit and should appear exactly as it appears in the introduction. The jurat, also
known as the notary’s certificate, is the concluding statem ent that the affidavit was sworn to
before the notary on a certain date. Im m ediately beneath the jurat appears the signature of
the notary before whom the oath is taken, and the notary’s com m ission.
Tenn. Notary Public Handbook (Mar. 2006 ed.) (available at the Tenn. Sec’y of State’s website at
http://www.tn.gov/sos/bus_svc/notary.htm and last accessed March 26, 2012) (em phasis added).

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Reg. No. 2177, dated July 17, 2007 and Apr. 29, 2009 respectively, both available at
www.tbpr.org.)
Therefore, while the motions to strike have already been granted insofar as the
evidence has been excluded, the Court will also need to conduct a hearing on this matter
to determine whether further sanctions, including, but not limited to, monetary sanctions,
are appropriate. The Court will do so in a separate order, but the parties should be
prepared to present all evidence relevant to the matter; Defendant’s counsel, in particular,
shall be prepared to present evidence on all costs associated with the Mulkey Affidavit,
including the filing of the motions to strike, the deposition of Mr. Mulkey, and all related
costs. Further, the Court will compel the attendance not only of counsel, but of Mr. Mulkey
and Ms. Berz.
B.

Plaintiff’s Race-Based Discrimination Claims

Throughout her deposition, Plaintiff repeatedly reaffirmed that the three incidents
laid out in her first charge of discrimination – (1) the change in her hours and schedule; (2)
the allegation that she was in soil sort without wearing PPE; and (3) the decision to change
office assignments – "are the sole incidents that [she] identif[ied] as being evidence of
discrimination against [her] based on race." (Barnes Dep. 376-77, 395-96.) After she was
terminated, on July 24, 2007, she filed a second charge, alleging that she was fired in
retaliation for filing the first charge and in which she described the July 2, 2007 meeting at
which she was suspended. (Doc. 22-2, 2nd THRC Charge of Discrimination (“2nd
Charge”.)
With respect to Plaintiff’s Title VII discrimination claims, there is no direct evidence
of discriminatory intent, so Plaintiff’s claims must be analyzed under the familiar McDonnell
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Douglas/Burdine burden-shifting analysis. See Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 252-56 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1972).
Under this analytical scheme, the burden first falls to the plaintiff to establish a prima facie
case of discrimination. Burdine, 450 U.S. at 252-53; DiCarlo v. Potter, 358 F.3d 408, 414
(6th Cir. 2004). If the plaintiff is able to meet her burden of showing a prima facie case of
discrimination, the burden then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the plaintiff’s termination. Burdine, 450 U.S. at 253; DiCarlo,
358 F.3d at 414. If the defendant is able to articulate a legitimate, nondiscriminatory reason
for the plaintiff’s termination, the burden then shifts back to the plaintiff to produce
evidence from which a jury could find that the defendant’s stated reason is actually a
pretext for discrimination. Burdine, 450 U.S. at 253; DiCarlo, 358 F.3d at 414-15.
Plaintiff has failed to submit evidence from which a reasonable jury could conclude
that she established a prima facie case of discrimination based on disparate treatment. To
demonstrate a prima facie case in this regard, she must show: “that (1) [s]he was a
member of a protected class; (2) that [s]he suffered an adverse employment action; (3) that
[s]he was qualified for the position; and (4) that a person outside the protected class was
treated more favorably than [her].” Clay v. United Parcel Serv., Inc., 501 F.3d 695, 703 (6th
Cir. 2007); see Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006). In order
to raise a genuine issue of material fact that he was “qualified” for purposes of the Title VII
analysis, a plaintiff must “demonstrate that she was meeting her employer’s legitimate
expectations and was performing to her employer’s satisfaction.” Warfield v. Lebanon Corr.
Inst., 181 F.3d 723, 729 (6th Cir. 1999).

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Defendant is correct that, as to the three circumstances outlined in her first charge
of discrimination – (1) the change in her hours and schedule; (2) the allegation that she
was in soil sort without wearing PPE; and (3) the decision to change office assignments
– Plaintiff has failed to show that these were “adverse employment actions.
To “rise to the level of ‘adverse employment actions,’” it must be the “type of action
. . . that ‘a reasonable employee would have found ... materially adverse, which in this
context means [that the action would] dissuade[ ] a reasonable worker from making or
supporting a charge of discrimination.’” Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 996
(6th Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006)). As the Supreme Court noted in Burlington, “it is important to separate significant
from trivial harms,” and “[a]n employee's decision to report discriminatory behavior cannot
immunize that employee from those petty slights or minor annoyances that often take place
at work and that all employees experience,” Burlington Northern, 548 U.S. at 68. As the
Sixth Circuit noted in Hunter, where a claims are “of a de minimis nature and amount to
nothing more than petty slights and minor annoyances . . . no reasonable jury would find
these allegedly retaliatory acts so adverse that they would dissuade a reasonable
employee from making a charge of discrimination.” Hunter, 565 F.3d at 996.
None of the circumstances alleged in the first charge rise to that level. For instance,
as to the office assignments issue, not only did Plaintiff maintain her main office, merely
losing an office where she stored equipment, but it was indeed her idea to do so. (Pl.’s
Dep. 393-94.) Further, although the veracity of Defendant’s warning about wearing PPE
in the soil sort is a contested issue, she has not established that the warning was an

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adverse employment action. As in Hollins v. Atlantic Co., Inc., 188 F.3d 652, 662 (6th Cir.
1999), there is no evidence here “to show that the lowered performance ratings actually
had an effect on her wages”; Plaintiff, therefore, has failed to show that the Court could
“conclude that there was a materially adverse employment action.” Likewise, as to the
change in hours, it is important to note that the hours for the entire instrument department
changed, not just her hours. While the Court can see that the change in hours was
inconvenient for her insofar as it infringed upon her second job – a job which she told her
employer she had quit – the change in hours did not affect her pay or benefits.
Therefore, because Plaintiff has failed to show that the three circumstances
identified in her first charge constituted materially-adverse employment actions, she has
failed to make a sufficient showing on an essential element of her case with respect to
which she has the burden of proof, and thus Defendant is entitled to summary judgment
as to those claims.
Finally, while Defendant is correct that Plaintiff did not really plead a retaliation claim
as to her termination, because almost the entirety of her responsive briefing focuses on
purportedly retaliatory actions after the filing of her first charge, the Court will note that such
a claim is also unavailing, in large part because she has failed to tie the behavior to the
appropriate company representative. As was previously noted, Ray Reilly was the
individual responsible for making the decision to terminate her. She never took advantage
of the company’s procedures for reporting harassment claims, and, even though Reilly
himself talked to her for thirty minutes, during that meeting she focused exclusively on
reducing her job responsibilities and never raised any issue of discriminatory or retaliatory
harassment. Finally, although the Court has already stricken the Mulkey Affidavit, to the
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extent one were to consider his allegations about the racially-charged language allegedly
used by Hines, Plaintiff does not allege, let alone introduce evidence showing, that Reilly
was aware of those statements or shared those sentiments. The record is replete with
significant evidence of her poor performance and insubordinate behavior, and Plaintiff
offers no evidence that she was treated differently than any similarly situated employee.
Accordingly, Defendant’s Motion for Summary Judgment (Doc. 57) will be
GRANTED, and Defendant’s Motion for Partial Summary Judgment as to Punitive
Damages (Doc. 59) will be DENIED AS MOOT.
IV.

CONCLUSION
Accordingly, and for the reasons stated above, Defendant’s Motion for Summary

Judgment (Doc. 57) and Motion to Strike the Purported Affidavit of Donnie Mulkey, to
Preclude Plaintiff from Relying upon the Deposition Testimony of Donnie Mulkey, and for
Other Appropriate Sanctions (Doc. 96) are hereby GRANTED. Defendant’s Motion for
Partial Summary Judgment as to Punitive Damages (Doc. 59) is hereby DENIED AS
MOOT. As noted above, the Court will set the matter of potential sanctions relating to the
“Mulkey Affidavit” for a hearing by separate order.

SO ORDERED this 28th day of March, 2012.

/s/Harry S. Mattice, Jr.
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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