Manstra v. Norfolk Southern Railway Company

Filing 78

MEMORANDUM OPINION in support of the following Order as to the motion for summary judgment.Signed by District Judge Thomas A Varlan on 3/28/12. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
KENYA R. MANSTRA,
Plaintiff,
v.
NORFOLK SOUTHERN CORPORATION,
Defendant.

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No.:

3:10-CV-166
(VARLAN/SHIRLEY)

MEMORANDUM OPINION
This civil action is before the Court on the Motion for Summary Judgment [Doc. 43],
submitted by defendant Norfolk Southern Corporation (“NSC”), in which NSC moves the
Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment on
all claims of plaintiff Kenya R. Manstra. In her complaint, plaintiff claims sex-based
discrimination and retaliation in violation of Title VII, 42 U.S.C. §§ 2000e, et seq. (“Title
VII”), and the Tennessee Human Rights Act, Tenn. Code Ann. §§ 4-21-101, et seq. (the
“THRA”), and retaliatory discharge in violation of the THRA, the Tennessee Public Protective
Act, Tenn. Code Ann. § 50-1-304 (the “TPPA”), and the Tennessee common law. Plaintiff has
responded in opposition [Doc. 51] to NSC’s motion for summary judgment, and NSC has filed
a reply [Doc. 53] to that response.1 The matter is ripe for determination.
1

Plaintiff also filed a supplement to her response to NSC’s motion for summary judgment
[Doc. 69], to which NSC filed a consolidated response and notice of supplemental authority [Doc.
70]. The Court notes first that plaintiff’s supplement is not in accordance with Local Rule 7.1(d)
because plaintiff did not obtain prior approval from the Court before filing her supplement and
because the supplement discusses no developments that have occurred since plaintiff filed her
response. See E.D. TN. LR 7.1(d). However, notwithstanding this non-compliance, the Court has
reviewed and considered the supplemental briefs of both plaintiff and NSC and the arguments and
law given therein.

Upon careful review of the parties’ briefs, the exhibits, the related filings, and the
applicable law, and for the reasons set forth herein, NSC’s motion for summary judgment
will be GRANTED and plaintiff’s claims will be DISMISSED. This case will be
CLOSED.
I.

Facts
Plaintiff was hired in July 2007 as a trainee in NSC’s management training program,

a 15-month program which provides trainees with on-the-job training in different locations
with different managers and supervisors who review and critique the trainees’ performance.
For most of plaintiff’s training, she was assigned to the Knoxville terminal. Throughout her
training, plaintiff worked with trainmaster Jimmy McKeehan (“McKeehan”), trainmaster
Chris Morris (“Morris”), transportation training manager Dominick Browne (“Browne”),
terminal superintendent Skip Stigall (“Stigall”), and training coordinator Steve Guinn
(“Guinn”). These individuals provided performance feedback to plaintiff through emails and
counseling sessions, both over the telephone and in person, and communicated with NSC
management regarding plaintiff’s job performance.
In November 2007, during the first few months of her training, NSC management held
a performance meeting, attended by plaintiff and several members of management. During
that meeting, management expressed several concerns regarding plaintiff’s job performance.
Following the performance meeting, NSC placed plaintiff on a development action plan (the
“DAP”) [Doc. 43-2, pp. 6-9; Doc. 43-9, pp. 1-4]. The DAP outlines NSC’s concerns about
plaintiff’s job performance, including a lack of initiative and assertiveness in learning her job
2

duties and responsibilities, not engaging in learning the operations of the terminal, frequent
requests to not work her assigned shifts, a lack of interest in job responsibilities, and sending
personal text messages and having personal telephone conversations during work hours [Doc.
43-9, pp. 3-4]. The DAP also contains several requirements plaintiff was instructed to follow
in the next phase of her training and warned plaintiff that “future occurrences of concerns
with your performance may result in further action to include dismissal.” [Id.; Doc. 43-2, pp.
6-9].
In June 2008, Stigall completed an evaluation of plaintiff’s job performance during
her training in January and February 2008 [Doc. 43-2, pp. 37-40]. The evaluation rated
plaintiff’s performance unsatisfactory in nine of eleven categories and found that her overall
performance needed improvement to meet NSC’s expectations [Id.].
Plaintiff was promoted to the position of trainmaster on October 1, 2008 and assigned
the position of trainmaster at the Knoxville terminal. On November 15, 2008, a “side-swipe
incident” occurred while plaintiff was on duty at the Knoxville terminal [Doc. 43-7]. After
the incident, Morris, plaintiff’s supervisor, wrote a summary stating that it was his opinion
that plaintiff had handled the incident improperly because she had not reported it, sent an
unqualified employee to investigate it, and improperly described it [Id., pp. 6-7]. Both
Morris and Stigall discussed the incident with plaintiff and the issues they had with her
performance in regard to the incident [Doc. 43-2, p. 59].
On December 22, 2008, NSC placed plaintiff on a performance improvement plan (the
“PIP”) [Doc. 43-2, pp. 24, 61-62]. The PIP noted targeted performance areas in which
3

plaintiff needed improvement and outlined steps for plaintiff to complete within thirty days
of the PIP [Id.]. Following plaintiff’s placement on the PIP, Guinn met with plaintiff on
January 7 and 9, 2009, to discuss her job performance [Doc. 43-8, pp. 3-5]. During their
discussions, Guinn noted several areas in which plaintiff’s performance was deficient. Guinn
also noted that plaintiff failed to make passing scores on two tests she took on January 8,
2009: a Train & Engine Rules Examination test and a Train & Engine Power Brake
Examination test (the “rules examinations”) [Id.].
On January 17, 2009, Mark Manion (“Manion”), NSC’s executive vice president of
operations, terminated plaintiff’s employment as a result of her progressive performance
issues and failure to meet the requirements of the PIP [Doc. 43-4].
Plaintiff’s claims of sex-based discrimination and retaliation arise from and relate to
events that occurred during her training period and after her promotion. During her
employment with NSC, it is undisputed that plaintiff was placed on two performance plans:
the DAP, when she was a trainee, and the PIP, following her promotion. The DAP and the
PIP both outlined specific steps for plaintiff to improve her job performance. It is also
undisputed that plaintiff lodged several verbal and written complaints with NSC and with her
supervisors regarding what she considered to be harsh, improper, and unfair treatment by her
supervisors and her co-workers. Plaintiff also lodged a complaint with NSC’s equal
employment office (the “EEO”), and confirmed the contents of an anonymous email which
discussed an alleged sexual assault incident in March 2008 that occurred while plaintiff was
off-duty and instances where NSC employees allegedly referred to plaintiff in a sexual way.
4

Finally, it is undisputed that during her training and following her promotion, NSC
management and plaintiff’s supervisors notified plaintiff through email, formal counseling
sessions, and through the DAP and the PIP, that she was not satisfactorily performing a
number of her job duties. Relevant events from plaintiff’s training and after her promotion
include the following:
Within the first few months of plaintiff’s training, McKeehan, who supervised
plaintiff during the first part of her training, reported by email to Stigall that plaintiff only
did the bare minimum of work required of her and lacked interest in her training, including
learning how to document delays in train scheduling and terminal operations [Doc. 43-2, p.
31]. McKeehan also observed that during work hours, plaintiff performed non-work related
activity on her computer, sent personal text messages, and had personal conversations on the
phone with her fiancee during work hours [Id.; Doc. 43-2, pp. 6-8]. In her deposition,
plaintiff admits to the conduct noted by McKeehan. However, plaintiff asserts that she was
never aware of McKeehan’s criticism and was never given a chance to respond to his email.
On January 22, 2008, Morris, a trainmaster who supervised plaintiff during the second
part of plaintiff’s training, counseled plaintiff, both verbally and in writing, about her failure
to send him certain information [Doc. 43-2, pp. 10-12, 33]. Morris also counseled plaintiff
about her behavior during a one-on-one training session plaintiff observed as part of her
training and about plaintiff’s failure to file required weekly trainee reports [Id.].
On January 30, 2008, during a status report phone call between plaintiff and Stigall
[Doc. 43-2, pp. 43-58], NSC asserts that plaintiff was unable to answer questions relating to
5

basic aspects of her job and that plaintiff admitted to Stigall she did not know what was going
on in the terminal [Id.]. Plaintiff complained to Morris that Stigall acted in a harsh and
condescending manner towards her during this status report phone call [Id., p. 22].
On June 30, 2008, plaintiff filed a complaint with NSC’s EEO office regarding her
unhappiness at being assigned to the Knoxville terminal rather than Norfolk terminal.
Plaintiff complained that she had been told she would be transferred to Norfolk, and, relying
on that information, she had placed a non-refundable deposit on a house in Norfolk. Plaintiff
also expressed concerns about Stigall’s harsh and condescending manner towards her during
their January 30, 2008 conversation and what she perceived to be Stigall’s untimeliness in
providing her job performance feedback [Doc. 43-2, pp. 20-23; Doc. 51-1, pp. 104-06].
On July 15, 2008, plaintiff sent Browne an email stating that she felt she was not
receiving equal opportunities as compared to other trainees [Doc. 51-1, p. 88]. NSC asserts
that in August 2008, Stigall, Guinn, and Morris held a meeting with plaintiff during which
it was explained to plaintiff that she needed to work harder and she was given steps to take
in order to better learn terminal operations [Doc. 43-5, p. 3]. On September 4, 2008, Guinn
sent plaintiff and other employees an email alerting them of an instance in which they had
failed to file safety audits [Doc. 53-8, pp. 3-4].
On September 30, 2008, plaintiff complained to NSC about an incident regarding J.
Blake Chambers (“Chambers”), a male co-worker, alleging that Chambers acted in a hostile
and abusive manner towards her during their shift [Doc. 51-1, p. 111]. Plaintiff complained
that “Chambers was very disrespectful, with his tone and language, argumentative, and
6

uncooperative . . . I do not feel that I deserve to be harassed, disrespected, and treated in
such a manner.” [Id.].
On three occasions following plaintiff’s promotion on October 1, 2008, Morris
notified her by email that she had failed to submit required reports [Doc. 43-7, pp. 3-5].
On October 13, 2008, NSC received an anonymous email which refers to plaintiff in
the third person [Doc. 51-1, pp. 89-90]. The anonymous email references issues plaintiff had
previously raised in her June 30, 2008 EEO complaint regarding her assignment to the
Knoxville terminal [Id.]. The anonymous email also states that a trainmaster was mistreating
plaintiff, that none of the other trainmasters wanted to work with plaintiff because they
thought she would tell on them, that plaintiff did not want to work with one trainmaster
because “she does not trust in him in a sexual way stemming from something that happened
off duty[,]” that plaintiff had heard the only reason she was in Knoxville was to force her to
quit for filing the EEO complaint, and that several of the trainmasters “talk unfavorably about
her in a sexual way . . . [and] it shows in the way they treat her at work.” [Id.].
NSC contacted plaintiff after receiving the anonymous email. Plaintiff told NSC that
she did not know who authored the email but that she could confirm the “truth” of its
contents [Doc. 43-6, p. 5]. Plaintiff also elaborated on the sexual incident referred to in the
email, stating that it was an attempted sexual assault on her by Brandon Smith (“Smith”), a
male trainee, that occurred in March of 2008 while plaintiff was off-duty [Doc. 43-2, pp. 1317]. Plaintiff did not report this incident at the time it occurred [Id., p. 17], and it appears to
be undisputed that it was only brought to NSC’s attention in the anonymous email. After
7

receiving the anonymous email and plaintiff’s confirmation of its contents, NSC created an
internal report and launched an internal investigation [Doc. 43-6, ¶ 4]. The internal report
details NSC’s investigation and notes that it was unable to corroborate the March 2008
incident involving Smith [Id., pp. 3-5; Doc. 43-2, pp. 13-18].
Throughout her employment, plaintiff alleges that Stigall acted towards her in a harsh
and condescending manner. She alleges that both Stigall and Morris refused to give her
employment guidance, but that they gave guidance to male trainees. Plaintiff asserts that her
co-workers, Kevin Triplett (“Triplett”) and William Hitch (“Hitch”), agree that plaintiff’s
supervisors picked on her, that plaintiff was given less training, and that she was treated more
harshly than male trainees [Doc. 51-1, pp. 92-96]. Plaintiff alleges that she asked her
supervisors if she could go on “saturation checks” and on derailment investigations, but
unlike male trainees, she was never invited or allowed to do so. Finally, she alleges that NSC
did not perform a thorough investigation into her EEO complaint and the incidents described
in the anonymous email.
II.

Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper

“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). The moving party bears
the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Phillip Morris Cos., 8 F.3d 335, 339 (6th
Cir. 1993). All facts and all inferences to be drawn therefrom must be viewed in the light
8

most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002).
“Once the moving party presents evidence sufficient to support a motion under Rule 56, the
nonmoving party is not entitled to a trial merely on the basis of allegations.” Curtis Through
Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex,
477 U.S. at 317). To establish a genuine issue as to the existence of a particular element, the
non-moving party must point to evidence in the record upon which a reasonable finder of fact
could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
genuine issue must also be material; that is, it must involve facts that might affect the
outcome of the suit under the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper question
for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the evidence or
determine the truth of the matter, id. at 249, nor does the Court search the record “to establish
that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d
1472, 1479-80 (6th Cir. 1989). Thus, “the inquiry performed is the threshold inquiry of
determining whether there is a need for a trial—whether, in other words, there are any
genuine factual issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250.

9

III.

Analysis
A.

Sex-Based Discrimination – Title VII and the THRA

Title VII makes it unlawful “for an employer . . . to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment
because of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. §
2000e-2(a)(1). The relevant part of the THRA states that it is discriminatory practice for an
employer to “[f]ail or refuse to hire or discharge any person or otherwise discriminate against
an individual with respect to compensation, terms, conditions or privileges of employment
because of such individual’s race, creed, color, religion, sex, age, or national group.” Tenn.
Code Ann. § 4-21-401(a)(1). The Tennessee legislature has made clear that the purpose of
the THRA is to “[p]rovide for execution within Tennessee of the policies embodied in the
federal Civil Rights Acts of 1964[.]” Tenn. Code Ann. § 4-21-101(a). See Graves v. Circuit
City Stores, Inc., No. 03A01-9501-CH-00012, 1995 WL 371659, at *2 (Tenn. Ct. App. June
21, 1995) (“Our Courts have looked to federal case law applying the provisions of the federal
anti-discrimination statutes as the baseline for interpreting and applying the Tennessee
Act.”). “Both [the United States Court of Appeals for the Sixth Circuit] and the state courts
in Tennessee have evaluated claims brought under the THRA in the same manner as Title VII
claims” Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 557 (6th Cir. 2009) (citing
Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 673 (6th Cir. 2008) and
Graves, 1995 WL 371659, at *2)). This Court therefore will apply the same analysis to
plaintiff’s sex-based discrimination claim under the THRA as plaintiff’s sex-based
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discrimination claim under Title VII. The Court’s disposition of plaintiff’s Title VII claim
will apply with equal force to her THRA claim.
A Title VII claim may be established through direct or circumstantial evidence. See,
e.g., Dicarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). A plaintiff who cannot provide
direct evidence of discrimination may still base her claim on circumstantial evidence. “‘In
discrimination cases, direct evidence is that evidence which, if believed, requires the
conclusion that unlawful discrimination was at least a motivating factor in the employer’s
actions.’” Higdon v. Sortz Instrument Co., 211 F.3d 1269 (Table), 2000 WL 420685, at *2
(6th Cir. Apr. 12, 2000) (quoting Jacklyn v. Schering-Plough Healthcare Prod. Sales Corp.,
176 F.3d 921, 926 (6th Cir. 1999)).
Plaintiff has not presented any direct evidence of sex-based discrimination. She may,
however, base her claim on circumstantial evidence.
Title VII and THRA claims based on circumstantial evidence are analyzed under the
burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). See Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir. 2007).
Under the McDonnell Douglas framework, the burden is on the plaintiff to first establish a
prima facie case. 411 U.S. at 802; Texas Dep’t of Community Affairs v. Burdine, 450 U.S.
248, 254 (1981). To establish a prima facie case of sex-based discrimination, the plaintiff
must demonstrate (1) she is a member of a protected class; (2) that she suffered an adverse
employment action; (3) that she was qualified for the job; and (4) that her employer treated
similarly situated employees outside the protected class more favorably, or that her position
11

was filled with a person outside of her protected class. Wright v. Murray Guard, Inc., 455
F.3d 702, 707 (6th Cir. 2006). Once a prima facie case has been shown, the plaintiff is
entitled to a presumption that the defendant discriminated against her in violation of Title
VII. Id. (citing Dicarlo, 358 F.3d at 414). The defendant then bears the burden of
production to put forth a “legitimate, nondiscriminatory reason” for the complained of
adverse treatment. Id. (citing Burdine, 450 U.S. at 254). “‘The explanation provided must
be legally sufficient to justify a judgment for the defendant.’” Id. (quoting Burdine, 450 U.S.
at 255). If the defendant meets this burden, the presumption created by the prima facie case
falls away, and the plaintiff needs to show that the defendant’s proffered reason was a
“pretext for discrimination.” Id. (citing DiCarlo, 358 F.3d at 441-15(quoting Burdine, 450
U.S. at 253)). Throughout this burden-shifting approach, the plaintiff continues to bear the
ultimate burden of proving, by a preponderance of the evidence, the intent to discriminate.
St. Mary’s Honor Crt. v. Hicks, 509 U.S. 502, 511 (1993).
Here, the first two elements of plaintiff’s prima facie case of sex-based discrimination
are undisputed. That is, that plaintiff is female, a member of a protected class, see, e.g.,
Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 544 (6th Cir. 1999), cert. denied, 529
U.S. 1019 (2000) (stating that a female plaintiff alleging sex-based discrimination is a
member of a protected class), and plaintiff was terminated from her employment, an adverse
employment action. See, e.g., Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885-86 (6th
Cir. 1996) (discussing what constitutes an adverse employment action). NSC asserts,
however, that plaintiff cannot establish the third and fourth elements of her prima facie case.
12

1.

Qualified for the Position

NSC argues that plaintiff has not satisfied the third element of her prima facie case
because she failed to meet NSC’s legitimate expectations for her job performance and
therefore was not qualified for her position. NSC asserts that plaintiff was unable to perform
her job duties in a satisfactory manner both before and after her promotion, and that her
unsatisfactory performance following her promotion culminated in NSC’s termination
decision. NSC points out that plaintiff was placed on the DAP within the first few months
of being hired, that during her training and after her promotion, Morris, Stigall, and Quinn
gave her counselings regarding her job performance, that these counselings included
warnings about plaintiff’s lack of initiative and assertiveness in learning her duties, her
failure to file reports, her lack of interest in learning operations, and her engagement in nonwork-related matters during work hours. NSC asserts that after her promotion, plaintiff
continued to demonstrate a lack of proficiency in her knowledge of terminal operations, that
she sometimes failed to complete reports and submit safety audits, and that she failed to
follow instructions. NSC also points to plaintiff’s improper handling of the side-swipe
incident. Last, NSC asserts that plaintiff’s unsatisfactory performance under the PIP and her
failure to make a passing score on the rules examinations show that after her promotion,
plaintiff was not meeting NSC’s legitimate expectations and therefore NSC determined that
she was not qualified for her position.
Plaintiff argues that because NSC promoted her, she is necessarily qualified for her
position. She asserts that NSC was aware of her supposed infractions, her record on
13

performance examinations, and her performance record when it chose to promote her. She
contends that because these issues did not disqualify her from her position prior to her
promotion, there is a genuine issue of fact as to whether she was qualified for her position
when she was terminated. Plaintiff also asserts that because she engaged in protected activity
and was retaliated against following her promotion, that the close proximity between her
complaints to NSC management and her termination raises an inference of causation. Last,
plaintiff asserts that she was qualified for her position because rather than being terminated
in December 2008, she was placed on the PIP.
The test in the Sixth Circuit for whether an employee was qualified for her position
is whether the employee met the legitimate expectations of his or her employer. McDonald
v. Union Camp. Corp., 898 F.2d 1155, 1160 (6th Cir. 1990) (stating that in order to show
qualification, an employer must show that he was “performing his job at a level which met
his employer’s legitimate expectations” at the time of his dismissal”) (citations omitted). For
purposes of the prima facie analysis, the qualifications of an employee are assessed in terms
of whether he or she was meeting the expectations of the employer prior to and independent
of the events that led to the adverse action. Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579,
585 (6th Cir. 2002).
As an initial matter, the Court notes that plaintiff has conflated her sex-based
discrimination and her retaliation claims. While a temporal proximity between plaintiff’s
termination and her alleged exercise of protected activity is important to the Court’s analysis
of her retaliation claim, it is irrelevant to the Court’s consideration of whether plaintiff was
14

qualified for her position. The Court also does not find plaintiff’s argument regarding
placing her on the PIP in December 2008, instead of terminating her, to support her argument
that she was qualified for her position. Rather, the PIP’s identification of targeted areas in
plaintiff’s performance which needed improvement, and the steps the PIP laid out for
plaintiff to follow, demonstrate that plaintiff was not meeting NSC’s performance
expectations within the month prior to her termination.
As to plaintiff’s argument that she was qualified for her position, as represented by
her promotion, the Court disagrees that her promotion alone shows that she was qualified for
her position at the time of her termination. As noted by the Sixth Circuit in Murphy v. Univ.
of Cincinnati, an employee may meet an employer’s initial qualifications at hiring, but this
does not mean that the employee will never then be found by the employer to be unqualified.
72 F. App’x 288, 293 (6th Cir. 2003). In Murphy, the plaintiff advanced an argument similar
to the argument plaintiff advances here—that because she was hired, she was necessarily
qualified for the position from which she was later terminated. Id. at 292. The Sixth Circuit
disagreed, noting that the plaintiff had produced no evidence that the employer was ever
happy with the plaintiff’s performance once she commenced employment and that “[the
plaintiff] would have us hold that once [she] . . . is objectively qualified through proper
training, licensure, or output requirements, she can never be found unqualified, regardless
of her actual performance.” Id. at 293.
Here, it is undisputed that plaintiff’s supervisors and NSC management noted
problems with plaintiff’s job performance before her promotion, as evidenced by the DAP,
15

McKeehan’s email to Stighall, Morris’ evaluation of plaintiff’s performance, and Stighall’s
status report phone call with plaintiff. More importantly, it is undisputed that plaintiff’s
supervisors and NSC management noted problems with plaintiff’s performance after her
promotion. Plaintiff does not dispute that Morris informed her that he was not satisfied with
her performance following the side-swipe incident and that after her promotion he sent her
several emails which document her failure to submit required reports. Finally, plaintiff does
not dispute that she was placed on the PIP on December 22, 2008, does not dispute that
Guinn documented his opinion that plaintiff’s performance after being placed on the PIP was
unsatisfactory, and does not dispute that plaintiff failed to make passing scores on the rules
examinations.
While plaintiff relies primarily on the fact that she was promoted in October 2008 to
demonstrate her qualifications, this reliance fails to consider NSC’s overall evaluation of her
performance, namely, the PIP and NSC’s documented impressions of her performance
following the PIP. Similar to the plaintiff in Murphy, plaintiff has presented no evidence that
her job performance met NSC’s legitimate expectations at the time of her termination.
Accordingly, given the DAP, the written and verbal counselings by plaintiff’s supervisors
and NSC management, plaintiff’s performance following the side-swipe incident, plaintiff’s
failure to make passing scores on the rules examinations, and plaintiff’s failure to meet the
requirements of the PIP, the Court finds that plaintiff has not demonstrated the third element
of her prima facie case. However, even if plaintiff was qualified for the position, her claim

16

of sex-based discrimination still fails because, as explained below, she has failed to satisfy
the fourth element of that prima facie case.
2.

Similarly Situated

A plaintiff may establish the fourth prong of a prima facie case of sex-based
discrimination under Title VII and the THRA by identifying at least one comparable
employee outside the protected classification who was similarly situated in all relevant
respects, but who nonetheless received more favorable treatment. Ercegovich v. Goodyear
Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). A plaintiff need not demonstrate an
exact correlation with the employee receiving more favorable treatment in order for the two
to be considered “similarly situated.” Id. Rather, a plaintiff need only show that they are
similar in all relevant aspects. Id.; Clayton v. Meijer, Inc., 281 F.3d 605, 610-11 (6th Cir.
2002). One panel of the Sixth Circuit has stated that in order to deem employees “similarly
situated,” a court should “make an independent determination as to the relevancy of a
particular aspect of the plaintiff’s employment status and that of the non-protected employee”
as opposed to assuming that only specific factors must be present for an employee to be
found similarly situated. Gibson v. Shelly Co., 314 F. App’x. 760, 771 (6th Cir. 2008)
(noting that comparable employees do not necessarily have to have dealt with the same
supervisor or be subject to the exact same standards).
In her response brief, plaintiff asserts that she “can show that persons outside of the
protected class was [sic] treated more favorably than Plaintiff. . . . Plaintiff incorporates her
facts from Section II, by reference as though set forth in its entirety as a showing of
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differential treatment of males.” [Doc. 51, p. 21]. Plaintiff does not identify which “males”
from her statement of facts are similarly situated to her for purposes of this analysis, let alone
describe what their positions were, the standards NSC held them to, or how their conduct was
similar to plaintiff’s conduct.2 In other words, plaintiff has undertaken no analysis of
whether a male employee was similarly situated to her, but treated differently by NSC.
While plaintiff has alleged, throughout her statement of facts, that males were allowed to do
things she was not, that in the opinions of several of her co-workers, males were treated
better, and that Stigall and Morris treated her harshly than they treated males, plaintiff has
failed to describe which males enjoyed more favorable treatment, whether these males
occupied the same position as plaintiff, or whether they received similar counseling and
performance reviews. These conclusory allegations, in lieu of a similarly situated analysis,
do not demonstrate that employees not within plaintiff’s protected class were treated
differently.
3.

Replaced by an Individual Outside of the Protected Class

Alternatively, plaintiff argues that she can meet the fourth element of her prima facie
case by demonstrating that she was replaced by a male. Plaintiff relies solely on the
following portion of Stigall’s deposition testimony in support of this argument:

2

Plaintiff names a number of male employees in her statement of facts, including William
Hitch, Kevin Triplett, Ronnie Campbell, Ernest Hamilton, “Lavender” and “Island” (whom the
Court assumes to be male), Brandon Smith, J. Blake Chambers, and Bill Herald. Plaintiff, however,
provides no analysis showing how any of these males are similarly situated to her for purposes of
the fourth element of her prima facie case.
18

Attorney:

. . . . What female trainmasters have you had since July
of 2007 when [plaintiff] started?

Stigall:

The ones I had were prior to [plaintiff].

[Doc. 51-1, pp. 32].
While a plaintiff may indeed satisfy the fourth element of a prima facie case by
showing that she was replaced by someone outside her protected class, the record of this case
does not demonstrate that plaintiff in this case has done so. Without more, the above-cited
portion of Stigall’s testimony does not demonstrate that plaintiff was replaced by a male.
Stigall did not testify that plaintiff was replaced by a male or a female, and the record does
not indicate that NSC hired a new trainmaster to take plaintiff’s place.
B.

Retaliatory Discharge

Retaliation claims under Title VII and the THRA are governed by the same burdenshifting framework as sex-based discrimination claims under Title VII and the THRA.
Kessler v. Riccardi, 363 F. App’x 350, 355 (6th Cir. 2010). Thus, because plaintiff has set
forth no direct evidence of retaliation, such as an explicit statement that she was terminated
due to engagement in a protected activity, the McDonnell Douglas burden-shifting
framework for proving her retaliation claims on the basis of circumstantial evidence applies.
Accordingly, plaintiff must make out her prima facie case of retaliatory discharge by
showing: (1) that she engaged in protected conduct; (2) that NSC had knowledge of her
protected activity; (3) that NSC took an adverse employment action against her; and (4) that

19

there was a causal connection between the protected activity and the adverse employment
action. Id.; see also Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007).
As noted above, Tennessee state courts have “looked to federal case law applying the
provisions of the federal anti-discrimination statutes as the baseline for interpreting and
applying [the THRA].” Graves v. Circuit City Stores, Inc., No. 03A01-9501-CG-00012,
1995 WL 371659, at *2 (Tenn. Ct. App. June 21, 1995) (citation omitted). While the
Tennessee Supreme Court’s decision in Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777
(Tenn. 2010), called into question the continuing utilization of the McDonnell Douglas
framework for retaliation claims under state law, the standard to be applied at the summary
judgment stage is procedural and thus, the Court will apply the McDonnell Douglas
framework to plaintiff’s THRA retaliation claims. Moling v. O’Reilly Auto., Inc., No. 091100, 763 F. Supp. 2d 956, 977-78, 2011 WL 112586, at *20-*21 (W.D. Tenn. Jan. 13,
2011); Atkins v. Denso Mfg. Tenn., Inc., No. 3:09-CV-520, 2011 WL 5023392, at *16 (E. D.
Tenn. Oct. 20, 2011). In addition, on June 10, 2011, an amendment to Tenn. Code Ann. §
4-21-311(e) took effect which appears to abrogate Gossett and require the continued
application of the McDonnell Douglas framework to THRA cases in accordance with the law
prior to Gossett. See Tenn. Code Ann. § 4-21-311(e); 2011 Tenn. Pub. Acts, c., 461, § 1, eff.
June 10, 2011.
Protected activity for the purposes of Title VII may include either participation in any
proceeding under Title VII (the “participation clause”), or opposition to a practice declared
discriminatory under Title VII (the “opposition clause”). See Johnson v. Univ. of Cincinnati,
20

215 F.3d 561, 581 (6th Cir. 2000) (interpreting Title VII’s anti-retaliation provision).
Plaintiff’s retaliation claim falls within the “opposition” clause of Title VII.
Under the opposition clause, an employee is protected against employer retaliation for
opposing any practice that the employee reasonably believes to be a violation of Title VII.
Johnson, 215 F.3d at 579-80. Generally, “opposition” encompasses “complaining to anyone
(management, unions, other employees, or newspapers) about allegedly unlawful practices;
refusing to obey an order because the worker thinks it is unlawful under Title VII; and
opposing unlawful acts by persons other than the employer—e.g., former employers, union,
and co-workers.” Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 721 (6th Cir. 2008). at
721 (quoting Johnson, 215 F.3d at 579). The plaintiff’s opposition must arise from “a
reasonable and good faith belief that the opposed practices were unlawful.” Johnson, 215
F.3d at 579. The plaintiff need not show that the practices were actually unlawful, id., but
must show that she raised her opposition in a reasonable manner. See Niswander, 529 F.3d
at 721. Recently, the Supreme Court established that “[w]hen an employee communicates
to her employer a belief that the employer has engaged in . . . a form of employment
discrimination, that communication virtually always constitutes the employee’s opposition
to the activity.” Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276
(2009). Opposition does not require the plaintiff to engage in “active, consistent ‘opposing’
activities,” but rather, mere disclosure will suffice. Id. at 277. Under the Sixth Circuit’s
jurisprudence, however, “a vague charge of discrimination in an internal letter or
memorandum is insufficient to constitute opposition to an unlawful employment practice.”
21

Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007) (quoting Booker v. Brown &
Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir.1989)).
NSC argues that plaintiff has not established a prima facie case of retaliation because
she cannot show that she engaged in a protected activity [Doc. 51, pp. 25-26]. In response,
plaintiff argues that the following incidents constitute an exercise of protected activity: (1)
her January 30, 2008 report to Morris about Stigall’s harsh and condescending manner
towards her [Doc. 43-2, p. 22]; (2) her June 30, 2008 EEO complaint [Doc. 51-1, pp. 10406]; (3) her July 15, 2008 email to Browne [Id., p. 88]; (4) her October 1, 2008 complaint
about Chambers [Id., p. 111]; and (5) her October 31, 2008 and November 11, 2008
confirmation to NSC of the truth of the contents of the anonymous email [Id., pp. 89-90].
Thus, plaintiff argues that she engaged in protected activity both prior and after NSC’s
investigation into the allegations of the anonymous email [Doc. 69].
The Court agrees with NSC that plaintiff’s January 30, 2008 report to Morris about
Stigall’s harsh and condescending conduct, plaintiff’s June 30, 2008 EEO complaint, and
plaintiff’s October 1, 2008 complaint about Chambers do not constitute protected activity
based on a matter made unlawful by Title VII or the THRA. Plaintiff’s complaints in these
instances are about the “stern,” “harsh,” or “condescending” manner in which Stighall spoke
to her, the untimeliness of Stighall’s feedback on her performance, plaintiff’s unhappiness
about being assigned to Knoxville rather than Norfolk, and a complaint that Chambers was
disrespectful, argumentative, and uncooperative [Doc. 51-1, pp. 80-81, 117-18; Doc. 43-2,

22

pp. 20-21; Doc. 43-6, ¶ 3; Doc. 51-1, p. 111].3 While plaintiff may have complained and
reported that her supervisors were acting unfairly or harshly, this type of complaint does not
constitute protected activity about matters made unlawful by Title VII or the THRA. See
Philip v. Wrigley Mfg. Co., LLC, No. 1;09-CV-144, 2010 U.S. Dist. LEXIS 112747, at *33
(E.D. Tenn. Oct. 22, 2010) (noting that “[c]omplaints about the way a business is being run,
or even ‘complaints concerning unfair treatment in general’ are insufficient to constitute
protected activity if they do not “specifically address discrimination”) (quoting Weaver v.
Ohio State Univ., 71 F. Supp. 2d 789, 793-94 (S.D. Ohio. 1998)). See also Lockett v. Marsh
USA, Inc., 354 F. App’x 984, 997 (6th Cir.2009) (finding that a report filed by an employee
did not constitute protected activity when it “did not take an overt stand against suspected
illegal discriminatory action; it did not even mention the term discrimination; it did not
suggest the need for an investigation into discriminatory practices, and there is no evidence
that [recipients of the report] understood [it] to be charging discrimination”).
As to plaintiff’s July 15, 2008 email to Browne, the first part of that email pertains to
plaintiff’s problems with housing [Doc. 51-1, p. 88]. The second part of the email states, in
pertinent part:
I am deeply concerned that I am not receiving an equal opportunity as
the other trainees . . . that I [am] getting marked up on so that I may
[may] have the same preparation opportunities for the October 1, 2008
promotion date.

3

Plaintiff also seems to acknowledge in her response brief that she did not “articulate that she
felt she was being discriminated against on the basis of her sex during” her June 30, 2008 complaint
[Doc. 51, pp. 25-26].
23

[Id.]. Similar to the complaints discussed above, this email does not contain an allegation
that NSC’s denial of equal opportunity was based on plaintiff’s sex or any other matter made
unlawful by Title VII or the THRA.
The only incidents to raise a question about whether plaintiff complained to NSC
regarding a matter made unlawful by Title VII or the THRA are plaintiff’s October 31, 2008
confirmation of the truth of the contents of the October 9, 2008 anonymous email, and
plaintiff’s subsequent meeting with NSC to go over the contents of that email. In addition
to mentioning the matters referenced in her June 30, 2008 EEO complaint and unfair
treatment by plaintiff’s supervisors, the anonymous email references the March 2008 alleged
sexual assault by Smith (without mentioning Smith’s name or the date on which the incident
occurred) and states that this incident made plaintiff not trust Smith in a “sexual way.” [Doc.
51-1]. The email also states that plaintiff was told the only reason she was in Knoxville was
so others could force her to quit for filing the EEO complaint, and because she had been told
that two trainmasters “hang out with [a] yardmaster and . . . talk unfavorably about her in a
sexual way and . . . it shows in the way they treat her at work.” [Id., p. 89]. Finally, the email
states that plaintiff was “crying and vomiting with anxiety about having to stay in Knoxville
. . . . I don’t [sic] want to make this worse for her or cost her, her job (that is what she is
afraid of now and that why she wont [sic] talk to anyone).” [Id.].
First, the Court notes that it is unclear from the record who composed the anonymous
email or whether plaintiff herself wrote the email. Plaintiff states in her declaration that she
only went over the issues raised in the email with an NSC employee and confirmed the truth
24

of its contents [Doc. 51-1, ¶¶ 46, 47]. Allegations in an anonymous email would have given
NSC no way of knowing that a particular employee was exercising protected rights by
complaining about unlawful activity. Second, while the anonymous email asserts retaliatory
conduct for plaintiff’s filing of the June 30, 2008 EEO complaint, that complaint contained
only plaintiff’s complaints about her placement in Knoxville and about Stigall’s harsh and
condescending manner, not conduct that is protected under Title VII or the THRA. Third,
plaintiff testified at her deposition that she never reported the March 2008 incident mentioned
in the anonymous email, other than in her October 31, 2008 confirmation of the truth of
contents of that email and her subsequent discussion with NSC [Doc. 43-2, p. 17]. Speck v.
City of Memphis, 370 F. App’x 622, 626 (6th Cir. 2010) (stating that to make out a claim for
retaliation under the ADEA, the plaintiff “must have referenced alleged acts of age
discrimination . . . [the plaintiff] produced no evidence that she ever mentioned age
discrimination in any of her complaints before resigning. She complained about being
targeted for unfair treatment, but not about being targeted because of her age”). Fourth, the
anonymous email does not identify Smith or any of the trainmasters who allegedly talked
about plaintiff in a sexual way. Finally, the allegations in the anonymous email are not that
NSC itself was engaging in unlawful discrimination on the basis of sex, but that several of
its employees were behaving in a sexually inappropriate manner. See, e.g., Booker, 879 F.2d
at 1313 (noting that a plaintiff’s allegation in a letter than an employee may be a racist due

25

to statements the employee made was not an “allegation . . . that [the employer] is engaging
in unlawful employment practice, but that one of its employees has a racial intolerance.”).4
While the record of this case shows that plaintiff made a number of complaints to
NSC management regarding what she perceived as unfair, harsh, and condescending
treatment by her supervisors and co-workers, the majority of these complaints do not relate
to sex. In regard to the single incident that does involve sex, plaintiff admitted that she did
not report the March 2008 alleged sexual assault incident, only notifying NSC of the incident
more than eight months after it occurred by confirming the truth of the anonymous email.
Furthermore, the anonymous email only contains vague references to sexually inappropriate
behavior by NSC employees and does not identify either the perpetrators of this behavior or
the dates on which it occurred. Balding-Margolks v. Cleveland Arcade, 352 F. App’x 35, 45
(6th Cir. 2009) (stating that the plaintiff did not state a Title VII retaliation action because
“a vague charge of discrimination in an internal letter . . . is insufficient to constitute

4

Because plaintiff did not file her EEOC charge until September 2009, her participation in
NSC’s November 2008 internal investigation into the March 2008 incident involving Smith cannot
constitute protected activity under the participation clause. See Abbott v. Crown Motor, Inc., 348
F.3d 537, 543 (6th Cir. 2003) (noting that participation in an employer’s internal investigation prior
to the filing of an EEOC charge does not fall within the protection of the “participation clause”
under Title VII). While an employee’s communications to her employer during an internal
investigation may constitute protected activity under the “opposition” clause, see Crawford, 555
U.S. 271, the Court does not read plaintiff’s retaliation claim as being that she was retaliated against
by NSC for responding to questions during NSC’s internal investigation into the contents of the
anonymous email. Rather, plaintiff alleges that the investigation NSC took into the contents of the
anonymous email was inadequate. However, even if plaintiff’s communications to NSC during its
internal investigation do constitute a protected activity under the opposition clause, as explained
infra, the Court has determined that plaintiff has not met her burden of proving pretext.
26

opposition to an unlawful employment practice” and the plaintiff never spoke with
management about sexual or age-based discrimination).
In sum, the Court concludes that plaintiff cannot show that she engaged in protected
activity. As such, plaintiff has failed to demonstrate a prima facie case for retaliation under
Title VII and the THRA.
C.

Legitimate, Non-Discriminatory Reason and Pretext5

Having found that plaintiff has failed to satisfy her prima facie cases of sex-based
discrimination and retaliation in violation of Title VII and the THRA, the Court need not
address whether plaintiff has established pretext. Nevertheless, the Court notes that NSC has
set forth a legitimate, non-discriminatory reason for plaintiff’s termination, that is, that
plaintiff’s job performance did not meet NSC’s legitimate expectations.
As previously explained, once a defendant makes the appropriate showing, the
plaintiff carries the burden of persuasion and must demonstrate that the defendant’s proffered
reason was a pretext for discrimination. Burdine, 450 U.S. at 252-555. To establish pretext,
a plaintiff may show one of the following: (1) the reason has no basis in fact; (2) the reason
did not actually motivate the challenged conduct; or (3) the reason was insufficient to warrant
the challenged conduct. Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th Cir.
2003) (en banc) (internal quotations and citation omitted). The first and third showings of
pretext consist of evidence attacking the credibility of the employer’s proffered motivation

5

Plaintiff makes a single pretext argument for her sex-based discrimination and her retaliation
claims under Title VII, the THRA, the TPPA, and Tennessee common law.
27

for the termination, such as evidence that the proffered reason for the plaintiff’s discharge
never happened, that the reasons were factually false, or that other employees outside the
protected class were not terminated even though they engaged in substantially identical
conduct as that which the employer contends motivated the plaintiff’s discharge. See Jones
v. Potter, 488 F.3d 397, 406 (6th Cir. 2007) (describing a showing of pretext under the
McDonnell Douglas framework for a claim under the ADA). In making the second showing,
a plaintiff “admits the factual basis underlying the employer’s proffered explanation and
further admits that such conduct could motivate dismissal.” Mischer v. Erie Metro Hous.
Auth., 168 F. App’x 709, 715 (6th Cir. 2006) (discussing a showing of pretext under the
McDonnell Douglas framework for a claim under Title VII) (emphasis in original). In other
words, instead of disputing the facts, the “plaintiff attempts to indict the credibility of his
employer’s explanation” and show “that the sheer weight of the circumstantial evidence of
discrimination makes it ‘more likely than not’ that the employer’s explanation is a pretext,
or coverup[]” for the illegal discrimination. Id. Finally, the Court notes that “unless it is
shown both that the reason was false, and that discrimination [or retaliation] was the real
reason[,]” a plaintiff has not proved pretext. Harris v. Metro. Gov’t of Nashville, 594 F.3d
476, 486 (6th Cir. 2010) (quoting Hicks, 509 U.S. at 515).
Plaintiff’s three arguments for why NSC’s reason for her termination is pretextual fall
under the second method of showing pretext. First, plaintiff asserts that she has shown
pretext because no disciplinary action was placed in her file between the November 2007
DAP and the December 22, 2008 PIP. Second, plaintiff asserts that NSC’s reason is
28

pretextual because Hitch and Triplett, plaintiff’s co-workers, stated that, in their opinions,
plaintiff’s performance was typical of new trainmasters and her performance could not
reasonably be a basis for her termination [Doc. 51-1, pp. 92-96]. Third, plaintiff asserts that
she has presented sufficient circumstantial evidence showing that she was subject to
excessive scrutiny by NSC and that her conduct was scrutinized more carefully than that of
her male co-workers, as evidenced by plaintiff’s affidavit and Triplett’s affidavit which state
that plaintiff was “picked on” by management, that the only difference between plaintiff and
the other trainees was that plaintiff was female and the others were male, and that Smith
made negative comments about plaintiff such as “She doesn’t need to be here” and “I refuse
to train her.” [Id., pp. 92-94].
Plaintiff’s arguments regarding pretext are essentially that she and two of her coworkers believe that she was performing her job satisfactorily and did not deserve NSC’s
performance warnings or her ultimate termination, that males were treated better than her,
and based on Hitch’s observation of plaintiff and his experience with NSC and trainmasters,
it is his opinion that it is questionable whether plaintiff’s performance was the actual reason
for her termination. Plaintiff has not, however, challenged the facts underlying NSC’s
problems with plaintiff’s job performance.
There is no requirement that an employer place a disciplinary action in an employee’s
file at certain intervals before terminating that employee for performance reasons. However,
assuming NSC did not place a formal disciplinary action in plaintiff’s file, there is evidence
that plaintiff received verbal and written counselings between November 2007 and December
29

2008 regarding her job performance, including emails and a oral notification by Morris that
he was unsatisfied with plaintiff’s performance after the side-swipe incident. In addition,
there is no evidence in the record that NSC placed disciplinary actions in the files of other
employees at any specific intervals or in response to counselings.
Plaintiff’s submission of Hitch and Triplett’s affidavits containing their opinions
regarding plaintiff’s job performance and treatment by her supervisors also do not show
pretext. Plaintiff has not shown that either Hitch or Triplett have personal knowledge or
experience relating to the training or counseling of trainmasters, or knowledge that makes
them able to compare plaintiff’s training and her performance to that of other trainmasters.
Plaintiff has also not demonstrated that Hitch or Triplett had any involvement in NSC’s
decision-making processes in regard to its employees and their jobs. There is no evidence
that Hitch or Triplett had access to information regarding NSC’s problems with plaintiff’s
performance or the performance evaluations of trainmasters similarly situated to plaintiff.
Further, as noted by the Sixth Circuit “[w]ithout more, mere opinions expressed by coworkers who have no direct involvement in the decision-making processes have no probative
value as to [an employer’s] alleged discriminatory intent.” Haley v. Gen. Elec. Co., 3 F.
App’x 240, 248 (6th Cir. 2001). See also McGee v. Geneseco, Inc., No. 92-6230, 1994 WL
4721, at *5 (Table) (6th Cir. Jan. 6, 1994) (stating that while three co-workers filed affidavits
expressing their opinions that the plaintiff had performed her duties capably, it was
“uncontested that these individuals were not in a position to evaluate [the plaintiff’s]
performance knowledgeably, especially with respect to the problems identified by [the]
30

defendants[,]” and that the affidavits of these individuals were insufficient to create a genuine
issue of fact on the issue of pretext). Hitch’s affidavit makes only one mention of “males,”
stating that “[i]n contrast to [plaintiff], I am concerned about the proficiency of other
trainmasters with whom I work, all of whom are males.” [Doc. 51-1, p. 96]. In addition,
while Triplett asserts in his affidavit that plaintiff was “picked on” by management and given
the “cold shoulder” by male employees, he offers no specific examples of this treatment, does
not identify which members of NSC management or which male employees he is referring
to, and does not state when or where these incidents occurred. The one specific incident
referred to by Triplett in his affidavit are comments by Smith which Triplett asserts indicate
that Smith expressed negative opinions about women. Notably, Triplett does not state
whether Smith’s comments were made to plaintiff.
In regard to plaintiff’s argument that her performance and conduct was scrutinized
more carefully than that of her male co-workers, the Court has not found evidence in the
record to support this. As noted by the Sixth Circuit in Harrison v. Metro. Gov’t of Nashville
& Davidson Cnty., 80 F.3d 1107, 1119 (6th Cir. 1996), overruled on other grounds by
Jackson v. Quanex Corp., 191 F.3d 647, 667 (6th Cir. 1999), when the record reveals that
a “plaintiff’s activities were scrutinized more carefully than those of comparably situated
employees[,]” this may support a finding that a defendant’s reasons were pretextual.
However, in this case, as noted in the Court’s discussion of the similarly situated element of
plaintiff’s prima facie case of sex-based discrimination, plaintiff has not undertaken any

31

analysis of her male co-workers and their positions or their conduct in regard to their job
performance was comparable to hers, yet they received different treatment.
Finally, the Sixth Circuit has adopted an “honest belief” rule with regard to an
employer’s proffered reason for discharging an employee. See Weimer v. Honda of Am.
Mfg., Inc., 356 F. App’x 812, 817-18 (6th Cir. 2009) (“Where the employer can demonstrate
an honest belief in its proffered reason, the inference of pretext is not warranted.”). Under
the “honest belief” rule, “so long as an employer honestly believed in its proffered
nondiscriminatory reason for discharging an employee, the employee cannot establish that
the reason was pretextual simply because it is ultimately shown to be mistake or incorrect.”
Kurincic v. Stein Inc., 30 F. App’x 420, 425, 2005 WL 231417, at *3 (6th Cir. 2002) (citing
Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1988)). An employer has an “honest
belief” in its reasons for discharging its employee when the employer “reasonably relied on
the particularized facts then before it” and “made a reasonably informed and considered
decision before taking an adverse employment action.” Smith, 155 F.3d at 807.
Here, NSC has offered evidence to substantiate its reasons for plaintiff’s termination.
The undisputed facts in the record show that plaintiff was placed on the DAP within several
months of hiring, and that she was counseled in January, September, October, and November
of 2008 about aspects of her job performance. Plaintiff was then placed on the PIP on
December 22, 2008 and, on January 7, 2009, plaintiff’s training coordinator documented his
opinion that plaintiff lacked proficiency with terminal operations and was unable to make a
passing score on the rules examinations [Doc. 43-8]. Given the foregoing, the Court finds
32

that plaintiff has not demonstrated that Manion, the decision-maker in regard to her
termination, did not have an honest belief that plaintiff’s job performance was deficient at
the time of her termination. Although plaintiff disputes aspects of the contents and context
of the DAP, the PIP, the written and verbal counselings by her supervisors and training
coordinators, her disagreement with NSC’s assessment of her performance does not render
NSC’s reasons for her termination pretextual. See, e.g., Lefevers v. GAF Fiberglass Corp.,
667 F.3d 721, 726 (6th Cir. 2012) (finding, in a reduction in force case, that the plaintiff had
not produced sufficient evidence to show pretext when the plaintiff’s poor performance
evaluations reflected the defendant’s legitimate assessment that the plaintiff’s job
performance had declined to an inadequate level) (citing McDonald v. Union Camp Corp.,
898 F.2d 1155, 1162 (6th Cir. 1990)).
D.

Retaliatory Discharge Under Tennessee Common Law and the TPPA

The Court now turns to plaintiff’s claims that she was terminated in retaliation for
refusing to participate in and/or remain silent about illegal activities, in violation of the
Tennessee common law and the TPPA. Tennessee common law protects employees from
being discharged for refusing to violate a clear public policy evidence by an unambiguous
constitutional, statutory, or regulatory provision. Mason v. Seaton, 942 S.W.2d 470, 475
(Tenn. 1997). The TPPA extends the common law to protect employees not only from
discharge for failing to participate in violations of clear public policy, but also from discharge
for refusing to remain silent about such violations in their workplace. Id.

33

For plaintiff to establish a prima facie case under the TPPA she must prove: (1) her
status as an employee of NSC; (2) her refusal to participate in, or to remain silent about
illegal activities; (3) that she was discharged; (4) and an exclusive casual relationship
between a refusal to participate or to remain silent about illegal activities and her termination.
See Merryman v. Central Parking Sys., Inc., No. 01A01-9203-CH-0076, 1992 WL 330404,
at *6 (Tenn. Ct. App. 1992). The elements of a common law retaliatory discharge claim are:
(1) that an at-will employment relationship existed between plaintiff and NSC; (2) that
plaintiff was discharged; (3) that the reason for the discharge was that plaintiff attempted to
exercise a statutory or constitutional right, or for any other reason which violates a clear
public policy evidenced by an unambiguous constitutional statutory or regulatory provision;
and (4) that a substantial factor in NSC’s decision to discharge plaintiff was her exercise of
protected rights or compliance with clear public policy. Crews v. Buckman Labs., Int’l, Inc.,
78 S.W.3d 852, 862 (Tenn. 2002). Tennessee courts have held that a plaintiff must meet the
requirements under the TPPA in order to establish a common law claim of retaliatory
discharge. Guy v. Mut. of Omaha Ins., Co., No. W1999-00942-COA-R9-CV, 2001 WL
204485, at *9 (Tenn. Ct. App. Mar. 1, 2001). Thus, the Court will analyze these claims
pursuant to the statutory framework.
Similar to retaliation claims under Title VII and the THRA, if an employee establishes
a prima facie case of retaliatory discharge, the burden shifts to the employer to assert a
“legitimate, non-pretextual reason for the employee’s discharge.” Caruso v. St. Jude’s
Children’s Research Hosp., Inc., 215 F. Supp. 2d 940, 937 (W.D. Tenn. July 9, 2002)
34

(citation omitted). If the employer satisfies this burden, the burden shifts back to the
employee to prove that the employer’s explanation is pretextual. Id. In proving pretext, the
employee “must present specific admissible facts, which realistically challenge the
defendant’s stated reasons.” Id. at 937-38 (citation omitted).
The Court finds, for the same reasons given in the Court’s analysis of plaintiff’s claim
for retaliation under Title VII and the THRA that plaintiff has not established that she refused
to participate or remain silent about an illegal activity or an activity that violates a clear
public policy evidenced by an unambiguous constitutional statutory or regulatory provision.
The record is clear that the majority of plaintiff’s complaints to NSC did not involve sex but
were in regard to what plaintiff perceived as harsh, condescending, or unfair treatment.
Plaintiff has provided no law under which her complaints about these matters are protected
by the TPPA and the common law. In addition, the Court does not find that plaintiff’s
confirmation of the incidents referenced in the anonymous email and her discussion with
NSC about those incidents constitute the type of conduct protected by the TPPA and the
common law. It is unclear whether plaintiff herself ever actually reported the incidents
referenced in the anonymous email and the contents of that email do not constitute a report
or complaint that NSC was engaging in discrimination on the basis of sex. Thus, the Court
concludes that plaintiff has failed to establish a prima facie case for retaliation under the
TPPA or the common law.
Finally, and even if plaintiff had stated a prima facie case of retaliation under the
TPPA and Tennessee common law, for the same reasons given above in regard to plaintiff’s
35

Title VII and THRA claims, the Court finds that plaintiff has failed to establish that NSC’s
legitimate, non-discriminatory reason for plaintiff’s termination was pretext.
IV.

Conclusion
For the reasons explained herein, NSC’s Motion for Summary Judgment [Doc. 43]

will be GRANTED and all claims brought by plaintiff will be DISMISSED. The Clerk of
Court will be DIRECTED to close this case. An appropriate order will be entered.
IT IS SO ORDERED.

s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE

36