Cunningham v. Tennessee Cancer Specialists, PLLC

Filing 39

MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge R Leon Jordan on 7/12/13. (ABF)

IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION
CHRISTINA CUNNINGHAM,
Plaintiff,
v.
TENNESSEE CANCER SPECIALISTS,
PLLC,
Defendant.

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No. 3:12-CV-254

MEMORANDUM OPINION
This civil action is before the court for consideration of “Defendant Tennessee
Cancer Specialists, PLLC’s Motion for Summary Judgment” [doc. 18]. Plaintiff has filed
a response in opposition [docs. 23, 24], and defendant has submitted a reply [doc. 30]. Oral
argument is unnecessary, and the motion is ripe for the court’s determination.
Plaintiff has filed suit for alleged violation of the Tennessee Human Rights Act
(“THRA”), Tennessee Code Annotated § 4-21-101, et. seq.; the Tennessee Disability Act
(“TDA”), Tenn. Code Ann. § 4-21-101, et seq.; the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 1211, et. seq.; the Pregnancy Discrimination Act (“PDA”), 42 U.S.C.
§ 2000e (k); and state common law claims for intentional infliction of emotional distress and
outrageous conduct.1 For the reasons that follow, defendant’s motion will be granted, and
this case will be dismissed.

1

Outrageous conduct and intentional infliction of emotional distress are the same cause of
action. Bain v. Wells, 936 S.W.2d 618, 622 n.3 (Tenn. 1997).

I.
Background
Tennessee Cancer Specialists, PLLC (“TCS”) provides comprehensive
treatment and care to cancer patients in East Tennessee and surrounding states. TCS is
organized into two teams comprised of physicians, physician assistants, nurses and staff.
Team 2 serves patients in Knoxville, the Dowell Springs location, as well as the Morristown,
Harrogate, and Newport offices. Plaintiff went to work for TCS at the Dowell Springs
location on October 10, 2011, in the position of scheduler. Shannon Arwood and plaintiff
were the only two full-time schedulers at the Dowell Springs location at that time. Plaintiff
was responsible for doing the scheduling for Dr. Brenda Nicholson, Dr. Richard Lee, and Dr.
Raymond Brigg, while Arwood did the scheduling for three other oncologists.
Schedulers have a multitude of responsibilities including referring patients;
handling calls and contacting patients, insurance carriers, and hospitals; scheduling patients’
tests and hospice care; receiving physician orders and sending orders for scheduled tests; and
obtaining insurance precertifications (“precerts”). Obtaining precerts for patient external
referrals is an important responsibility of the scheduler’s job. If precerts are not timely
obtained and forwarded to the third-party provider, the patient can experience delays and the
need to reschedule the external referral, all of which can delay the patient’s return
appointment at TCS.

2

The scheduler position is complex and detail intensive and is considered critical
to patient care. Arwood had responsibility for training plaintiff, and for the first two weeks
plaintiff sat with Arwood at her desk learning the multiple facets of the job. After that initial
period, plaintiff sat at her own desk located next to Arwood. Training for the scheduler
position normally takes about 90 days, but it can take as long as six months to be fully
proficient in the job. For the first several weeks of plaintiff’s training, she only did
scheduling for patients at the Dowell Springs office. After these initial weeks, plaintiff
assumed responsibility for scheduling all patients for the physicians on her team, no matter
the location.
A scheduler needs to be punctual and reliable in attendance, since TCS has
limited administrative staff able to handle the scheduling responsibilities on short notice and
such staff members have their own job responsibilities. Valerie Gibbs, the Team 2
Operations Manager, states in her declaration that when she interviewed plaintiff she stressed
the importance of the scheduler being present regularly and on time. She also told plaintiff
that the office is fast paced and the work performed is time and safety sensitive. Plaintiff
recalls that they discussed that the office is fast paced.
In early December 2011, plaintiff learned that she was pregnant. On December
2, 2011, plaintiff spoke with Ronda Oellien, the Human Resources Manager at the time about
her pregnancy.2 Plaintiff inquired whether she had to tell anyone or when she had to tell
2

Oellien is no longer employed by TCS. She left her employment with TCS on December
(continued...)

3

Gibbs, her operations manager about her pregnancy. Oellien told plaintiff that “it was her
information to give, it wasn’t anybody else’s information, and if she wanted to wait until the
pregnancy was viable, then that was up to her.” Plaintiff testified that she recalls Oellien
telling her that most people wait until they are three months along in their pregnancy before
giving notice, which for plaintiff would have been after her ninety-day probationary period.
On December 14, 2011, an incident involving the Morristown Diagnostic
Center occurred. A precert for one of plaintiff’s physicians had not been done for a scan.
Plaintiff testified that when she received the call that the precert had not been done, she
referred it back to the Morristown office. Plaintiff received a call from Gibbs telling her that
she needed to handle the matter. Although plaintiff testified that she misunderstood about
the person Gibbs told her to follow up with, the precert was taken care of with the patient and
diagnostic center being notified. Plaintiff testified that based upon what Arwood had told
her about scheduling done prior to the switch to a new system, she did not think she was
responsible for the precert for the Morristown office.
Gibbs states in her declaration that on December 14, 2011, she received a call
from Jennifer Brader in the Morristown office complaining that plaintiff had been asked to
work on an urgent precert for a patient waiting at the Morristown Diagnostic Center. Rather
than handling the precert herself, plaintiff referred the center to the Morristown office. Gibbs
states that by December 14, plaintiff knew or should have known that she had responsibility
2

(...continued)
31, 2011, to take another position.

4

for obtaining all precerts for her physicians, no matter what office was involved. According
to Gibbs, she called plaintiff and told her to contact Brader to get the information necessary
for the precert and admonished plaintiff that she was expected to handle all precerts for her
physicians. When Gibbs arrived at the Morristown office, she learned that plaintiff had not
called Brader. Gibbs called plaintiff who said she did not know who Brader was but said the
precert had been handled.
The following day, December 15, plaintiff was in the lunch room complaining
about Gibbs hurting her feelings because Gibbs insinuated that plaintiff was trying to push
work off onto other people. Gibbs states in her declaration that a co-worker informed her
that plaintiff had been complaining about her in the lunch room and also that plaintiff was
pregnant. Gibbs also states that she had heard comments from plaintiff’s co-workers that
plaintiff was complaining a lot and this was disruptive and also that she had heard a rumor
that plaintiff was pregnant.
Further, Gibbs states that after receiving this information, she contacted Dr.
Nicholson about counseling plaintiff concerning the precert incident with the Morristown
office and the rumor regarding plaintiff’s being pregnant. In her declaration, Dr. Nicholson
states that she thought they needed to know if plaintiff was pregnant so they could plan for
the hiring and training of someone to cover plaintiff’s position while she was on leave. The
scheduler position could not be left unfilled for an extended maternity leave and the position
cannot be filled by a temporary employee. So, Dr. Nicholson agreed that Gibbs should ask

5

plaintiff if she was in fact pregnant.
Plaintiff testified that Gibbs called her into her office and reprimanded her for
her conduct the day before and for complaining about Gibbs to a co-worker. Gibbs then
asked when plaintiff was going to tell her she was pregnant. Plaintiff made hand-written
notes of what she says occurred in the meeting. They reflect that when the incident from
December 14 was discussed, plaintiff explained that she was doing what the person who
trained her had said to do. Gibbs told plaintiff that in the future she would be responsible for
all scheduling and she was not to refer it back to someone else. Plaintiff said that she was
fine with this but taken aback by Gibb’s demeaning tone. Gibbs continued to belittle her
bringing up “issues” other co-workers had with her and called plaintiff a “Debbie downer.”
Then according to plaintiff, Gibbs took a “very affronted body language pose” and asked
why plaintiff had not told her she was pregnant. Plaintiff notes that Gibbs did not give her
a chance to answer and asked about when plaintiff was going to tell her and how far along
she was. Plaintiff told Gibbs that she was advised by HR [Oellien] to wait until after the first
doctor’s appointment to be sure the pregnancy was viable and that she would not miscarry,
which would be after plaintiff’s 90 day probationary period. Plaintiffs notes reflect that
Gibbs said plaintiff’s pregnancy issue had caused her a problem and that she would be
interviewing for someone to fill the full-time position, and plaintiff would be moved to a
floater position. Also according to plaintiff’s notes, Gibbs told her Oellien had informed her
incorrectly about procedure. Gibbs also said plaintiff would be considered for future

6

scheduling positions when she was more reliable for the company.
In her declaration, Gibbs states that she met with plaintiff on the afternoon of
December 15 to counsel her about the importance of her job responsibilities and advise her
that complaining about Gibbs to other TCS employees was inappropriate. Gibbs did ask
plaintiff when she was going to tell her about the pregnancy, and plaintiff told her she had
not been to a doctor yet. Gibbs states that she disagreed with Oellien’s advice about waiting
to tell about the pregnancy because of the critical nature of plaintiff’s job. Gibbs informed
plaintiff that she would be hiring someone for the full-time scheduling position and cross
train plaintiff as a floater, but she would consider plaintiff in the future for a scheduling
position if one became available. Gibbs prepared a counseling memorandum concerning the
meeting and asked plaintiff to return the original with her signature. The last paragraph of
the memorandum states:
I told her that when I hired her I explained that we had difficulty
with covering the schedule and that I needed someone
dependable. I told her that I would be hiring someone for the
full time scheduling position and that we would use her as a
floater. I told her that she may be considered in the future for a
scheduling position if one came available.
After the meeting with Gibbs, plaintiff called Oellien and left a voice mail
message, saying she was very upset about the situation and asked “if this was normal
practice.”
Plaintiff testified that Oellien returned the call that evening and said she had
spoken with Scott Hitch, the Chief Executive Officer of TCS, and “that that is not normal
7

practice” and that Oellien and Hitch would meet with her. Oellien testified that plaintiff
called her on her cell phone about 7:00 p.m. the evening of the meeting with Gibbs. During
the conversation plaintiff was “completely flustered, frustrated, [and] mad” according to
Oellien and she had been crying. Plaintiff relayed to Oellien what had occurred in the
meeting with Gibbs. When the call ended, Oellien immediately called Hitch.
In her conversation with Hitch, Oellien expressed her concern that she had not
been part of the reprimand since she was supposed to participate in such actions. She also
expressed her concern about Gibbs’s “badgering [plaintiff] regarding her pregnancy” and the
comments made about plaintiff’s pregnancy. According to Oellien, Hitch said “I can’t
believe that” and promised to look into the matter further.
Hitch stated in his declaration that he knew Oellien and Gibbs did not get
along, but he agreed with Oellien that plaintiff’s complaint needed to be addressed. On
December 16, 2011, Hitch contacted Dr. Nicholson and informed her about plaintiff’s
complaint and Gibbs’s reaction to plaintiff’s pregnancy. He also contacted TCS’s attorney.
Later the same day, Hitch, Dr. Nicholson, and Gibbs met with TCS’s legal
counsel. The decision was made that plaintiff would remain in her position. When TCS
management received plaintiff’s due date, TCS would hire a new employee who would be
trained and have experience to cover for plaintiff while she was on maternity leave. Plaintiff
would be returned to her scheduling position upon her return from maternity leave. It was
further decided that Dr. Nicholson and Gibbs would meet with plaintiff so that Dr. Nicholson

8

could correct some of Gibbs’s statements. Dr. Nicholson would also inform plaintiff that
TCS supports its pregnant employees, confirm that plaintiff would be given maternity leave,
and assure plaintiff that she would not be removed from her scheduling position.
Plaintiff testified that on December 16, 2011, Gibbs approached her and told
her she needed to return the original memorandum Gibbs had given her the day before.
Plaintiff told Gibbs that she had been advised not to sign it or not to give it back to her, one
of the two, although she could not remember which. Plaintiff stated that Gibbs told her she
had done nothing wrong, and plaintiff told her she did not want to talk about it because it
upset her. Plaintiff further testified that Gibbs was talking to her in the hallway where
patients were present and she was embarrassed because Gibbs was “borderline yelling at
me.” When asked in her deposition, plaintiff denied that she walked out of Gibbs’s office
because she did not want to speak to Gibbs.
On December 19, 2011, plaintiff called Oellien to tell her that she was having
a panic attack because of the way Gibbs was treating her. Oellien put plaintiff on hold while
she spoke with Hitch who agreed that if plaintiff was feeling that way she should go home
and to have Oellien let Gibbs know. Oellien testified that she emailed Gibbs and told her
about plaintiff’s leaving. Gibbs responded that in the future an employee needed to be
referred to her and she would handle such matters.
On December 21, 2011, plaintiff met with Dr. Nicholson and Gibbs, and the
meeting was followed up with a memorandum, which was given to plaintiff. Dr. Nicholson

9

took contemporaneous notes of the meeting. Plaintiff and Gibbs agree that the memorandum
accurately reflects what was discussed at the meeting. Dr. Nicholson and Gibbs explained
to plaintiff the critical nature of her scheduling position and that having the position filled
at all times is imperative. They told plaintiff that to ensure coverage of her position, they
would begin to cross-train her and a new hire so there would be adequate coverage while she
was out on maternity leave. Dr. Nicholson and Gibbs emphasized that TCS does not
discriminate against its pregnant employees, and told plaintiff she would receive her full
maternity leave. They stated further that TCS has always supported its pregnant employees
and that TCS would be supportive of plaintiff as well. Dr. Nicholson and Gibbs also told
plaintiff that their concern was not that she was going to be out sick during her pregnancy
but that they could not have her job unfilled for up to three months, and the position cannot
be filled with a temporary employee.
Also at the December 21 meeting, Dr. Nicholson and Gibbs addressed the
issues that had arisen recently between plaintiff and Gibbs and a recent incident when
plaintiff had been late to work. They reminded plaintiff that her direct report was Gibbs, a
fact which was not a change but a clarification of the proper chain of command. They also
provided plaintiff with Gibbs’s phone number.
Gibbs sent plaintiff an email on January 3, 2012, regarding scheduling errors
and three precerts that plaintiff had not completed for tests that had been scheduled. Plaintiff
admitted in her deposition that she mistakenly scheduled a bone scan instead of a bone

10

density test that had been ordered by Dr. Nicholson. As a result, the patient received a charge
for a procedure that was not ordered. Plaintiff also admitted that she scheduled a CT of the
cervical spine when Dr. Nicholson had ordered a CT of the sacral spine. On January 6, 2012,
Gibbs received an email from Dr. Nicholson’s nurse, April McGlothin, regarding hospice
care that had been ordered by Dr. Lee, one of plaintiff’s assigned physicians, that had not
been placed by plaintiff. In the email, McGlothin and Dr. Lee requested that all scheduling
for the Harrogate office be returned to that office.
On January 12, 2012, Gibbs and Dr. Nicholson met with plaintiff concerning
the numerous errors that had as of that date impacted the care of at least ten patients. The
meeting was memorialized in a memorandum. Plaintiff admits that other than the three
precerts referenced in memorandum and the January 3 memorandum, the information
included is correct. Also at the meeting, Dr. Nicholson and Gibbs told plaintiff that they
were implementing a new 90-day probationary period because it was clear she needed
additional training. They offered to give plaintiff support and assistance but encouraged her
to seek help from her coworkers when she had questions.
Plaintiff states that she admits to making some mistakes. She testified that she
was in a catch-22 because her coworkers were giving her the cold shoulder and not helping
her and when she sought help from the doctors or nurse practitioner, she was reprimanded
by Gibbs.

Plaintiff also stated that she was not fully trained in some areas such as

scheduling patients for hospice care.

11

The day following the January 12 counseling meeting with Dr. Nicholson and
Gibbs, Friday, January 13, 2012, plaintiff did not timely obtain two precerts for scans she had
scheduled for the following Monday. Arwood stayed late and sent an email at 7:15 p.m. to
Gibbs informing her of the situation and expressing her frustration with the circumstances.
Only one precert could be obtained, so the scan for the other patient had to be rescheduled.
Plaintiff testified that she started the precerts and that Amy was going to finish them because
plaintiff had to leave early. Plaintiff said she was confused about the scans and also that the
system was down. Plaintiff conceded that it was technically her fault that her coworkers had
to stay late on Friday night to resolve the problem. On Monday, January 16, 2012, Gibbs met
with plaintiff and Arwood concerning Arwood’s email and what had occurred the Friday
before. Arwood told plaintiff that she should not have scheduled appointments on Friday for
the following Monday with the existing difficulties in obtaining precerts. Plaintiff admits
this was a valid point. Gibbs also explained to plaintiff that Amy was not her backup;
Arwood was her backup.
On January 18, 2012, Dr. Nicholson emailed Gibbs regarding problems that
Knoxville Breast Center (“KCBC”) was having with plaintiff. KCBC is a major source of
referrals to TCS. The complaints included that KCBC staff were treated with “rudeness and
discourtesy” by plaintiff and that plaintiff told a KCBC staff member that she did not have
time to do a precert for an MRI being performed the next day. Another incident involved a
doctor adjusting his schedule to see a patient. However, the patient was a no show because

12

in spite of making multiple calls to TCS for appointment information, she never heard from
TCS about the date and time of the appointment. In her email, Dr. Nicholson expressed
concern about not continuing to offend KCBC because of the importance of their business
to TCS. She then requested that plaintiff no longer do any scheduling for KCBC.
TCS has an attendance policy that requires an employee to notify his or her
supervisor or manager by 7:00 a.m. each day of absence due to illness, unless an authorized
medical leave has been obtained. TCS also has a job abandonment policy which states in
part, “Employees who fail to report or call in for three consecutive schedule shifts will be
considered to have voluntarily resigned and to have abandoned their position.” Plaintiff was
fully aware of both of these policies.
The last day plaintiff worked at TCS was January 18, 2012. Plaintiff
represented in an interrogatory answer that she notified Gibbs by phone on January 19, 20,
23, 26, 30, and February 1 of her absences due to illness. Plaintiff testified in her deposition
that she believed she used her cell phone to make the calls and that she called Gibbs’s cell
phone number or her work number. She believes she called the office number on February
1 but called the cell phone number for all the other dates.
Gibbs states in her declaration that on January 19 she received a call from
plaintiff’s fiancé stating that plaintiff was sick and was going to the doctor. He made
reference to a urinary tract infection. Gibbs further states in her declaration that on the
evening of January 19 she received a call from plaintiff who said that her doctor said she

13

could return to work on January 23 and that she would bring a note from the doctor. Plaintiff
testified that she first saw her doctor on January 23. Plaintiff also testified that she called
Gibbs on January 19 and 20, telling her she was sick.
Plaintiff further testified that on January 23 she let Gibbs know that she had
been to the doctor. She believes she texted and called Gibbs after her doctor’s appointment
to tell her that she would be out through the 25th. Plaintiff testified that she asked Gibbs if
she wanted her to send her a work excuse, but Gibbs said they would take care of it when she
returned. Plaintiff actually saw her doctor on January 23. Gibbs states in her declaration
that after plaintiff did not come to work on January 19, she made a list of all calls she
received from plaintiff. Gibbs states that plaintiff called on January 23 saying that her doctor
wanted to see her that morning and she would return to work after the appointment.
According to Gibbs, she did not hear from plaintiff again on January 23, and plaintiff did not
return to work that day.
Gibbs’s declaration and call list indicate that she did not hear from plaintiff on
January 24 or 25. Plaintiff testified that she did not return to her doctor nor did her doctor
extend her return to work date beyond January 25. Plaintiff called Gibbs on January 26,
although at her deposition she could not recall what was said. Per Gibbs, plaintiff left a
voicemail message saying that she would be back in office on Monday, January 30 and she
would bring a doctor’s note to cover the illness. With regard to the January 26 contact with
Gibbs, plaintiff could not recall what was said in the conversation and could not remember

14

whether she left a voicemail message.
In anticipation of plaintiff returning to work on January 30, Gibbs conferred
with Dr. Nicholson who although having reservations about plaintiff being successful at the
scheduler position, told Gibbs to allow plaintiff to return to work with specific conditions.
Plaintiff testified that she called Gibbs on her cell phone on January 30 to tell
her she and her daughter were both sick and she was taking her daughter to the doctor.
Plaintiff also testified that she called Gibbs on her cell phone or the TCS office number on
February 1 to report that her daughter was still sick. Plaintiff recalled that in the February
1 call she told Gibbs that her daughter was sick with an ear and sinus infection.
In her deposition, plaintiff acknowledged that if she made the calls to Gibbs
on January 30 and February 1, they would be noted on her cell phone records. Gibbs cell
phone records indicate that she received calls from plaintiff on January 19, 23, and 26.
Plaintiff’s cell phone records reflect that she called Gibbs’s cell phone on January 19, 23, and
26. When plaintiff was questioned in her deposition concerning what the phone records
indicated and whether she might be mistaken about calling Gibbs on January 30 and February
1, plaintiff stated, “I might have called the [TCS] main number.” Hitch stated in his
declaration, which included as an exhibit the phone records for the Dowell Springs main line
number, that there are no calls from plaintiff’s cell phone to the TCS number from January
19 through February 4. The following question and answer occurred at plaintiff’s deposition:

15

Q.

Okay. Well, if there is no record in any cell phone or
TCS’s phone of a phone call from your number on
January the 30th or February 1, would you agree that you
must have made a mistake and that you didn’t call those
days.?

A.

Then yes.

When asked if she “misremembered” calling on January 30 or February 1,
plaintiff said she might have used her fiancé’s phone. Hitch stated in his declaration that
there were no calls to the Dowell Springs main line number from plaintiff’s fiancé’s phone
from January 19 through February 4.
According to Dr. Nicholson and Gibbs, because plaintiff had not reported to
work or contacted TCS for four consecutive days, they determined that plaintiff had
voluntarily quit her employment. In a letter dated February 2, 2012, Gibbs notified plaintiff
that TCS was interpreting her lack of notification regarding her absences and failure to report
to work as a voluntary termination. The letter stated in pertinent part:
You have not reported to work or notified us of the reason for
your absence on January 30 and 31, and February 1 and 2.
This letter serves as notice that Tennessee Cancer Specialists is
interpreting your lack of notification regarding your absences,
as well as your failure to report to work as a voluntary
termination.
Plaintiff testified that when she got the letter, she notified her attorney. She did not,
however, make any effort to contact Dr. Nicholson, Gibbs or any other person at TCS to say

16

she was not quitting or leaving her job.

II.
Standard of Review
Defendant’s motion is brought pursuant to Federal Rule of Civil Procedure 56,
which governs summary judgment. Rule 56(a) sets forth the standard for governing
summary judgment and provides in pertinent part: “The court shall 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.” The procedure set out in Rule 56(c) requires that
“[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion.”
This can be done by citation to materials in the record, which include depositions,
documents, affidavits, stipulations, and electronically stored information. Fed. R. Civ. P.
56(c)(1)(A). Rule 56(c)(1)(B) allows a party to “show[] 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.”
After the moving party has carried its initial burden of showing that there are
no genuine issues of material fact in dispute, the burden shifts to the non-moving party to
present specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec.
Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “The ‘mere possibility’ of
a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)

17

(citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)).
In order to defeat the motion for summary judgment, the non-moving party
must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986). The non-moving party’s evidence is to be believed, and all
justifiable inferences are to be drawn in that party’s favor. Id. at 255. The court determines
whether the evidence requires submission to a jury or whether one party must prevail as a
matter of law because the issue is so one-sided. Id. at 251-52.

III.
Analysis
PDA and THRA Pregnancy Discrimination Claims3
Title VII as amended by the PDA provides that “women affected by pregnancy,
childbirth, or related medical conditions shall be treated the same for all employment-related
3

Courts have held that the THRA is designed to execute the policies of federal
discrimination laws and to act as an extension of those laws. Thus, when courts have evaluated
THRA claims, they have applied the same standards as those applied by federal courts in addressing
cases brought pursuant to Title VII. Raines v. Shoney’s, Inc., 909 F.Supp. 1070 (E.D. Tenn. 1995);
Stalsworth v. Dixie Cement Co., No. 1390, 1991 WL 51401 (Tenn. Ct. App. April 11, 1991). This
application includes the Pregnancy Discrimination Act of 1978. Payne v. Goodman Mfg. Co., 726
F. Supp. 2d 891, 903 (E.D. Tenn. 2010); see also Mayberry v. Endocrinology-Diabetes Assocs., 926
F. Supp. 1315, 1326-27 (M.D. Tenn. 1996)). It is “well settled that a claim of discrimination on the
basis of pregnancy must be analyzed in the same manner as any other sex discrimination claim
brought pursuant to Title VII.” Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410, 413 (6th
Cir. 1996); see also Bailey v. USF Holland, Inc., 526 F.3d 880, 885 n.1 (6th Cir. 2008) (“The
analysis of claims brought pursuant to the THRA is identical to the analysis used for Title VII
claims.”) (citing Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 31 (Tenn. 1996). Therefore, the
court’s analysis of plaintiff’s PDA claim applies equally to her THRA pregnancy discrimination
claim.

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purposes . . . as other persons not so affected but similar in their ability or inability to work.”
42 U.S.C. § 2000e(k). A plaintiff can demonstrate a prima facie case of pregnancy
discrimination in one of three ways: direct evidence, statistical proof, or the McDonnellDouglas burden shifting analysis. Ensley-Gaines v. Runyon, 100 F.3d 1220, 1224 (6th Cir.
1996).4 “Direct evidence of discrimination is evidence that proves that discrimination has
occurred without requiring further inferences.” Reeves v. Swift Transp. Co., Inc., 446 F.3d
637, 640 (6th Cir. 2006) (citations omitted). However, employing the direct method still
requires the showing of an adverse employment action. Raciti-Hur v. Homan, No. 98-1218,
1999WL 331650, at *3 (6th Cir. May 13, 1999) (“If the plaintiff succeeds in establishing a
prima facie case in one of these three ways, then the burden shifts to the defendants to
present a legitimate nondiscriminatory reason for the adverse employment action.”).
In order to establish a prima facie case under the PDA using the burden shifting
analysis, a plaintiff must show:
(1) that she was a member of a protected class; (2) that she
suffered an adverse employment action; (3) that she was
qualified for the given position; and (4) that she was replaced
by an individual who is not a member of the protected class.
Alternatively to this fourth element, a plaintiff may show that a
comparable non-protected person was treated better.
Id. (internal quotation marks and citations omitted).5 “In relation specifically to a pregnancy
4

The statistical method is not applicable in this case and will not be referenced further.

5

Some courts articulate the fourth prong as requiring a showing that “there is a nexus
between [plaintiff’s] pregnancy and the adverse employment decision.” Williams v. Steven D. Bell
(continued...)

19

discrimination claim, the ‘relevant respects’ in which comparables must be similarly situated
are their ‘ability or inability to work.’” Tysinger v. Police Dep’t of City of Zanesville, 463
F.3d 569, 574 (6th Cir. 2006) (quoting Ensley-Gaines, 100 F.3d at 1226). If plaintiff makes
this prima facie showing, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. Raciti-Hur, 1999 WL 331650,
at *3. If the defendant satisfies this burden of production, the burden shifts back to the
plaintiff to show that the proffered reason is pretextual. Id. Throughout this process, the
ultimate burden of persuasion remains with the plaintiff. Id.
Defendant argues that whether plaintiff employs the direct or indirect burden
shifting method, her pregnancy discrimination claims fail because she cannot demonstrate
that she was subjected to an adverse employment action. The court agrees.
The Sixth Circuit defines an adverse employment action as “a materially
adverse change in the terms of [a person’s] employment.” White v. Burlington N. & Santa
Fe Ry. Co., 364 F.3d 789, 797 (6th Cir. 2004) (quoting Kocsis v. Multi-Care Mgmt., Inc., 97
F.3d 876, 885 (6th Cir. 1996)).
[A] materially adverse change in the terms and conditions of
employment must be more disruptive than a mere inconvenience
or an alteration of job responsibilities. A materially adverse
5

(...continued)
& Co., No. 3:06-0359, 2007 WL 1296026, at *5 (M.D. Tenn. May 1, 2007). The showing for the
fourth prong can be demonstrated the same way. “It is incumbent upon Plaintiff to present evidence
from which a jury could conclude that comparable employees in all relevant respects were treated
more favorably which would give rise to an inference that pregnancy was the reason for less
favorable treatment.” Id. (internal quotation marks omitted).

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change might be indicated by a termination of employment, a
demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might
be unique to a particular situation.
Hollins v. Atlantic Co., Inc., 188 F.3d 652, 662 (6th Cir. 1999). “In other words, there must
be a significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a significant
change in benefits.” Miceli v. U. S. Dep’t of Transp., 83 F. App’x 697, 700 (6th Cir. 2003)
(internal quotation marks and citation omitted). “Employment actions that are de minimis
are not materially adverse and are not actionable under Title VII.” Wills v. Pennyrile Rural
Elec. Co-op. Corp., 259 F. App’x 780, 783 (6th Cir. 2008) (citing Bowman v. Shawnee State
Univ., 220 F.3d 456, 462 (6th Cir. 2000)).
Plaintiff contends that she was “reprimanded and demoted” by Gibbs on
December 15, 2011. Defendant argues that the record demonstrates that plaintiff was not
demoted nor reassigned from her scheduler position. Defendant also argues that whether
Gibbs counseled or reprimanded plaintiff on December 15, it does not rise to the level of an
adverse employment action.
While Gibbs’s comments on December 15 indicated that plaintiff would be
transferred to a floater position, that action was never taken. Plaintiff argues that she was
demoted in that meeting. However, after Gibbs, Hitch, and Dr. Nicholson met with counsel
on December 16, 2011, the decision was made not to reassign plaintiff. That information

21

was relayed to plaintiff in the December 21 meeting. The Sixth Circuit has “decided that
when an employer imposes an employment action that would be an adverse employment
action but then quickly reverses the action, the employee has not suffered an adverse
employment action.” Keeton v. Flying J, Inc., 429 F.3d 259, 263 (6th Cir. 2005) (citing
Birch v. Cuyahoga Cnty. Probate Court, 392 F.3d 151 (6th Cir. 2004); Bowman v. Shawnee
State Univ., 220 F.3d 456 (6th Cir. 2000)); see also Pennington v. City of Huntsville, 261
F.3d 1262, 1267 (11th Cir. 2001) (and cases cited therein) (“The caselaw in this area
indicates that the decision to reprimand or transfer an employee, if rescinded before the
employee suffers a tangible harm, is not an adverse employment action.”).
Plaintiff admits that while she was employed at TCS she did not receive any
pay reduction, her hours were not reduced, and she was not assigned to a different location
that would have caused her difficulty. Plaintiff remained at her desk and continued to
perform the scheduler job. When asked in her deposition whether her job changed after
December 15, plaintiff answered, “I still continued to schedule for the doctors.” She agreed
that she performed that work all day, every day. In short, the terms of plaintiff’s employment
did not change as a result of the December 15 meeting. Miceli, 83 F. App’x at 700.
With regard to plaintiff’s contention that she was reprimanded in the December
15 meeting, the memorandum memorializing the meeting states that Gibbs was “counseling
Christina on the importance of understanding her role and that it was very inappropriate to
sit and complain about this [precert issue with Morristown office on December 14] in front

22

of other staff members and the physicians that were in the breakroom.” This action does not
rise to the level of an adverse employment action. Fricke v. E.I. DuPont Co., No.
Civ.A.3:02CV536-S, 2005 WL 1949552, at *3 (W.D. Ky. Aug. 11, 2005) (placement on
renewal plan, increased duties while on renewal plan, removal from facilities on specific
date, and failure to notify plaintiff of rights under Family Medical Leave Act “did not
constitute an adverse employment action because [they] did not materially change the terms
of [plaintiff’s] employment”) (quoting Miceli, 83 F. App’x at 700); Creggett v. Jefferson
Cnty. Bd. of Ed., 491 F. App’x 561 (6th Cir. 2012) (written reprimand, denial of professionaltraining opportunities, forced resignation from a committee, failure to receive promotion, and
harassment with excessive classroom observations not more than de minimis employment
actions, at best). Gibbs’s conversation with plaintiff regarding plaintiff’s complaints in the
breakroom, be it counseling or a reprimand, does not rise to the level of an adverse
employment action.
Plaintiff also argues that she suffered an adverse employment action when
Gibbs “began what can only be described as a campaign of unjustified criticisms and
reprimands” once Gibbs learned of plaintiff’s pregnancy. In support of her contention,
plaintiff references her meetings on December 21 and January 12 with Dr. Nicholson and
Gibbs and the January 3 email from Gibbs. Defendant argues that plaintiff’s testimony and
the record do not support this contention.

23

Plaintiff testified that with regard to the memorandum memorializing the
December 21 meeting, the only fact which she found to be inaccurate was the reference to
her refusing to talk with Gibbs. Plaintiff stated that she did not refuse to speak with Gibbs;
she just did not want to talk to her about the issue. She found no inaccuracies regarding what
Dr. Nicholson told her regarding her being given maternity leave, the concern for having her
position filled while she was on leave, and the fact that they had changed their mind about
a reassignment and that she would remain in her scheduler position. Plaintiff admittedly
understood in her deposition that at the December 21 meeting, Dr. Nicholson and Gibbs
intended to leave her in her scheduler position and cross train someone to cover her job while
she was out on maternity leave. Further, plaintiff testified that the meeting was not
threatening or negative regarding her pregnancy. The following exchange occurred in
plaintiff’s deposition:
Q.

Okay. Did you find anything about this meeting to be
threatening or negative insofar as it discussed your
pregnancy?

A.
...
Q.

No.

A.

No.

. . . My question is are you taking the position that this
meeting in which was conducted by Dr. Nicholson and
Valerie that we’ve talked about extensively, that there
was something said or done in there that discriminated
against you because of your pregnancy?

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Plaintiff argues that the statements made by TCS in the December 21 meeting
were unbelievable. Plaintiff testified as follows:
Q.

Did you have any reason to doubt Dr. Nicholson when
she told you that TCS was supportive of their pregnant
employees and that they’d had several have maternity
leaves and return?

A.

Yes. Yes. I mean, Valerie, how many days before just
said that me being pregnant was an issue that they were
going to replace me. So yes, I doubted what she was
saying.

Q.

So you doubted Dr. Nicholson?

A.

I mean, I doubted what they both said.

Q.

So you think that Dr. Nicholson was not being up front,
honorable, or truthful when she told you that you would
have your maternity leave and that they value their
pregnant employees and that the pregnant employees
always got their maternity leave?

A.

Not that Dr. Nicholson did, no. I believe what she said,
yes.

Q.

Well, Dr. Nicholson supervises Valerie Gibbs, doesn’t
she?

A.

Yes.

Thus, plaintiff ultimately stated that she believed what Dr. Nicholson told her in the
December 21 meeting which corrected the statements made by Gibbs in the December 15
meeting. Elsewhere in her deposition, plaintiff stated that she found Dr. Nicholson to be
straightforward, truthful, and honorable. Dr. Nicholson is the supervisor over Gibbs and a

25

decision maker, so she was certainly in a position to authoritatively correct Gibbs’s
statements of December 15. Even if plaintiff continued to maintain that she thought the
representations in the December 21 meeting were unbelievable, her opinions and beliefs are
not sufficient to overcome defendant’s showing. Plaintiff’s perception is not evidence.
Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 871 (1st Cir. 1997), abrogated in part on
other grounds by Crowley v. L.L. bean, Inc., 303 F.3d 387 (1st Cir. 2002). TCS did not
remove plaintiff from her scheduler position for the remainder of her employment, just as Dr.
Nicholson said would be the case. Plaintiff did not remain long enough in TCS’s employ to
go on maternity leave.

Other than her perceptions, plaintiff has offered nothing to

demonstrate that TCS had no intention of following through with the corrected position it
announced at the December 21 meeting. In addition, as has already been noted, plaintiff
testified that there was nothing negative, threatening or discriminatory as to her pregnancy
at the December 21 meeting.
Plaintiff also contends that she was reprimanded in the December 21 meeting.
The memorandum from that meeting states:
In light of three situations described below that have occurred
since our discussion on December 15th, we feel it necessary to
remind you that your direct report is Valerie Gibbs, Operations
Manager. This is not a change in your direct report but rather a
clarification of our expectations on proper chain of command.
Following this paragraph, is a reference to December 16 when plaintiff informed Gibbs she
did not want to talk to her and left her office, December 19 when plaintiff left the office

26

because she felt like she was having a panic attack and did not notify Gibbs, and December
20 when plaintiff was late and did not notify Gibbs. Plaintiff takes issue with each of these
events. She contends she did not want to talk to Gibbs about the pregnancy issue, not that
she did not want to speak to her at all. Plaintiff also points out that on December 19 she had
permission to leave from Hitch and Oellien and on December 20 she was following the
procedures others follow about coming in late.
While plaintiff takes exception to the three incidents noted, there is nothing
inappropriate in light of those events to remind plaintiff that Gibbs was her direct contact.
The memorandum makes clear that should plaintiff have to leave the office, take time off,
or be late, she needed to report to Gibbs, her supervisor. Plaintiff’s contention that she was
told she could not bypass Gibbs and could not go to human resources or anyone else is not
reflected in the memorandum. Plaintiff was reminded that her position requires regular and
timely attendance and if she needed to be out of the office, she was to report to Gibbs.
Oellien’s opinion regarding the propriety of plaintiff reporting only to Gibbs is irrelevant
since she was not plaintiff’s supervisor nor was she a decision maker regarding the issues
involving plaintiff. In any event, the “reprimand” does not rise to the level of an adverse
employment action.
The January 3 email notified plaintiff of two scheduling errors, which plaintiff
admittedly made. She scheduled the wrong test for one patient and ordered the wrong area
of the spine for a CT scan. The email also references three precerts that were missed. At a

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meeting on January 12, 2012, Gibbs and Dr. Nicholson discussed these errors and others with
plaintiff. The memorandum for the January 12 meeting referenced the multiple errors
plaintiff had committed. She testified that with the exception of the three precerts, which she
says she had taken care of before she left the office, there was nothing incorrect in the
memorandum. Plaintiff also testified that in the January 12 meeting there was nothing done
that was discriminatory against her because of her pregnancy.
The January 3 email and January 12 meeting do not rise to the level of an
adverse employment action. Creggett, 491 F. App’x at 565. Further, plaintiff has not shown
that she suffered a materially adverse change in the terms of her employment. As noted
above, plaintiff admitted that she did not experience a pay reduction, she continued to
perform scheduling for her doctors, and she was not relocated. While she complains about
the meetings along with Gibbs’s demeanor and coming to her daily with negative comments,
plaintiff admits that there was nothing inappropriate with Gibbs trying to correct errors,
wrong scans being ordered, and precerts not getting done.
Accordingly, plaintiff has not shown an adverse employment action based upon
the December 15, December 21, January 12 meetings or the January 3 email. Plaintiff does,
however, claim that she was terminated, which constitutes an adverse employment action.
Defendant argues that plaintiff did not call in for four consecutive days in violation of TCS’s
attendance policy, and therefore TCS concluded that plaintiff had voluntarily terminated her
employment with TCS.

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On January 26, 2012, plaintiff represented that she would return to work on
January 30. Plaintiff, however, did not report to work on that date, nor on January 31,
February 1 and 2. Initially plaintiff stated in interrogatory answers and deposition testimony
that she called Gibbs on those days using her cell phone. Yet when presented with
documentary evidence in the form of phone records that do not show she called as she
claimed, she admitted she must have mistaken about calling. While plaintiff offered that
she might have used her fiancé’s phone, the phone records again do not support her claim.
The phone records do not sustain plaintiff’s contention that she called Gibbs’s cell phone or
the main Dowell Springs number using her own or her fiancé’s phone on the days she did not
report for work, January 30 and 31 and February 1 and 2. Gibbs’s notes regarding plaintiff’s
absences reflect that the last contact with plaintiff was on January 26 when she represented
that she would return to work on January 30 with a doctor’s note. Plaintiff’s testimony and
interrogatory answers representing that she called in those days is contradicted by the record,
and the court does not have to adopt her version for summary judgment purposes. Cf. Scott
v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no reasonable jury could believe it,
a court should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.”). After viewing all of the relevant phone records, no reasonable juror
could believe that plaintiff called to report her absences on the days in question using either
her or her fiancé’s phone by calling either Gibbs’s cell phone or the main number at the

29

Dowel Springs office.
Plaintiff knew what the attendance policy required regarding calling her
supervisor on each day of her absence, and she also was aware of the job abandonment
policy. Plaintiff was also well aware of the critical nature of her job and the importance of
having her position covered each day. This fact had been made clear to her again in recent
counseling with Gibbs and Dr. Nicholson, who reinforced how she needed to report to Gibbs
when it was necessary that she be out of the office or late to work. TCS was justified in
concluding that plaintiff had voluntarily ended her employment with TCS. In addition, when
plaintiff received the letter stating TCS’s position regarding the status of her employment,
plaintiff made no effort at all to contact anyone at TCS to say that she was not abandoning
or quitting her job. Thus, plaintiff was not involuntarily terminated, and she cannot show an
adverse employment action based on such a termination.
Because she cannot show an adverse employment action, plaintiff’s prima facie
case under the PDA fails. Nevertheless, defendant argues that even if plaintiff could show
an adverse employment action, she cannot meet the last prong of the prima facie case, that
she was replaced by an individual who is not a member of the protected class or alternatively,
that a comparable non-protected person was treated better. Plaintiff has not made such a
showing. Defendant has offered proof showing that the job abandonment policy has been
applied uniformly to employees who failed to report in or call for three consecutive days.
Two employees between June 2011 and July 2012 failed to call in and were considered to

30

have voluntary quit their positions with TCS. On this basis as well plaintiff has failed to
demonstrate a prima facie case under the PDA.
However, as noted above, some cases identify the fourth factor in a prima facie
case of pregnancy discrimination as the showing of a nexus between the pregnancy and the
adverse employment decision. Megivern v. Glazier Hills Inc., No. 12-1330, 2013 WL
2097373 (6th Cir. May 16, 2013). Temporal proximity between the announcement of the
pregnancy and the adverse employment decision can be sufficient to show a nexus. In
Megivern, the plaintiff was terminated two months after announcing her pregnancy and the
district court had found Megivern had stated a prima facie case. The Sixth Circuit concluded
that the district court had not erred. In this case, plaintiff announced her pregnancy in early
December and left TCS’s employ on February 2, 2012. Using this prima facie framework,
plaintiff has arguably shown the fourth prong of her prima facie case.
Nevertheless, plaintiff’s prima facie case still fails because she cannot
demonstrate that she experienced an adverse employment action. She did not suffer any
material adverse change in the terms of her employment. Plaintiff remained in her scheduler
position, she did not experience any reduction in pay or benefits, and she remained at her
same office and desk location. None of the counseling or reprimands rise to the level of an
adverse employment action based upon the standards established in Sixth Circuit authority.
Further, plaintiff admitted that the meetings on December 21 and January 12 as well as the
January 3 email were not negative, threatening or discriminatory regarding her pregnancy.

31

In addition, plaintiff admits she made errors and that it was appropriate for Gibbs to address
those errors, particularly in light of the critical nature of the scheduler position and the need
to timely provide care to TCS’s cancer patients. Furthermore, plaintiff cannot show that she
was terminated. The documentary record containing the relevant cell phone and phone
records simply does not substantiate plaintiff’s representations that she called in on the days
in question. TCS had legitimate reasons for concluding that plaintiff had voluntarily ended
her employment with TCS. Plaintiff knew about the attendance and job abandonment
policies and the importance of calling in when she could not be in the office. Plaintiff also
knew the importance of having her scheduler position properly covered each day. Even after
receiving the February 2 letter, plaintiff made no effort to contact anyone at TCS to say that
she had not abandoned her job and did not want to quit. Because plaintiff has failed to
demonstrate a prima facie case under the PDA, the court does not need to reach the issue of
pretext.
Plaintiff also makes the argument that this case should be analyzed as a mixedmotive claim. In a mixed-motive claim, the McDonnell-Douglas burden shifting analysis
does not apply. White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008). To survive
summary judgment in a mixed-motive Title VII claim, the plaintiff needs to “produce
evidence sufficient to convince a jury that: (1) the defendant took an adverse employment
action against the plaintiff; and (2) ‘race, color, religion, sex, or national origin was a
motivating factor’ for the defendant’s adverse employment action.” Id. at 400 (quoting 42

32

U.S.C. § 2000e-2(m)).
Plaintiff fairs no better under a mixed-motive analysis since she must still
demonstrate an adverse employment action. As discussed above, the court finds that plaintiff
has not shown that she experienced an adverse employment action.

Hostile Work Environment Claim
Plaintiff asserts a claim for hostile work environment based inter alia on her
contentions that she was told by her supervisor she was no longer dependable because of her
pregnancy, she suffered stress and a panic attack causing her to leave work early, and her
coworkers gave her the cold shoulder and would no longer help with her assignments.
Plaintiff provides no authority supporting her contention that any or all of what she
experienced constitutes a hostile work environment. Defendant argues that plaintiff’s claim
does not meet the standard for a hostile work environment under Title VII.
A hostile work environment exists “[w]hen the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21(1993) (internal quotations and citations omitted).
The work atmosphere created by the harassment must be both objectively and subjectively
hostile. Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000). “[T]he conduct
must be severe or pervasive enough to create an environment that a reasonable person would

33

find hostile or abusive and the victim must subjectively regard that environment as abusive.”
Id. (citing Harris, 510 U.S. at 21-22). Factors the court may consider in determining whether
the complained-of conduct is severe or pervasive enough to constitute a hostile work
environment “include the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Id. (quoting Harris, 510
U.S. at 23). While such factors may be instructive, the court must consider the totality of the
circumstances in assessing whether the complained-of conduct is sufficient to constitute a
hostile environment. Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999)
(citations omitted). The Sixth Circuit has stated, “Our harassment jurisprudence requires that
we distinguish between harassment and discriminatory harassment.” Trepka v. Bd. of Educ.,
28 F. App’x 455, 461 (6th Cir. 2002) (citing Bowman, 220 F.3d at 464). “Conduct that is
‘merely offensive’ will not suffice to support a hostile work environment action.” Id. (citing
Harris, 510 U.S. at 21).
To prevail on a hostile work environment claim, a plaintiff must first establish
a prima facie case. Howington v. Quality Rest. Concepts, LLC, 298 F. App’x 436, 443 (6th
Cir. 2008) (citing Clark v. UPS, 400 F.3d 341, 347 (6th Cir. 2005)). To demonstrate a prima
facie case, the plaintiff must show that “(1) she is a member of a protected class; (2) she was
subjected to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) the
harassment created a hostile work environment; and that (5) the employer is vicariously

34

liable.” Id. (quoting Clark, 400 F.3d at 347).
“Conduct that is not severe or pervasive enough to create an objectively hostile
or abusive work environment – an environment that a reasonable person would find hostile
or abusive – is beyond Title VII’s purview.” Harris, 510 U.S. at 21. Plaintiff has not met
this stringent standard.
The complaints raised by plaintiff regarding the continual reprimands and
discipline center around the meetings to address errors that impacted patient care. With
some relatively few exceptions, plaintiff admits that she made the errors that resulted in her
being counseled by Gibbs and Dr. Nicholson. In her deposition, plaintiff admitted that the
meetings on December 21 and January 12, as well as the January 3 email were not
threatening, negative, or discriminatory regarding her pregnancy. Plaintiff also complains
about Gibbs’s demeanor and the way she spoke to her. This is not enough. In Batuyong v.
Gates, 337 F. App’x 451 (6th Cir. 2009), the Sixth Circuit affirmed the grant of summary
judgment on hostile work environment claim where plaintiff asserted her supervisor more
than once “raised his voice, inappropriately, became verbally abusive, and chastised
[plaintiff] in front of others.” Id. at 457. The plaintiff also asserted that her supervisor refused
to allow her to attend a conference and denied her travel expenses. Id. at 457; see also
Trepka, 28 F. App’x at 461 (Supervisor’s “contentious oral confrontation” with yelling and
“stern words about [plaintiff’s] ability to walk” not hostile work environment); Goller v.
Ohio Dep’t of Rehab. & Corr., 285 F. App’x 250 (6th Cir. 2008) (supervisor’s derogatory

35

name calling insufficient to establish hostile work environment and name calling not
sufficiently severe or threatening to interfere with plaintiff’s work performance). Plaintiff
has not identified nor does the documented record support conduct by Gibbs that that would
constitute a hostile work environment.
Additionally, plaintiff contends that she received the “cold shoulder” from her
coworkers. In her deposition when asked why her coworkers would not talk to her, plaintiff
responded, “I don’t know.” The “cold shoulder” can contribute to the finding of a hostile
work environment, but such conduct on its own is not objectively severe conduct. Barrett v.
Whirlpool Corp., 556 F.3d 502, 517 (6th Cir. 2009); see also Rait v. Oshkosh Architectural
Door Co., No. 05-C-1271, 2007 WL 702806, at *8 (E.D. Wis. Mar. 2, 2007) (“cold shoulder”
treatment did not support hostile work environment claim – “Personality conflicts at work
that generate antipathy and mere snubbing by co-workers and even supervisors are not
actionable under Title VII”) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
68 (2006)). The fact that plaintiff says she received the “cold shoulder” from coworkers,
especially since she does not know why the conduct occurred, does not show she was
subjected to a hostile work environment.
Plaintiff also asserts as part of her hostile work environment claim the incident
on December 19 when she felt like she was going to have a panic attack because of the
demeaning way Gibbs treated her. This incident alone, although upsetting to plaintiff, is not
sufficient to establish a hostile work environment. Bowman, 220 F.3d at 463 (“Isolated

36

incidents, however, unless extremely serious, will not amount to discriminatory changes in
the terms or conditions of employment.”).
After considering the incidents described by plaintiff based upon the totality
of the circumstances, the court finds that they are not sufficiently severe or pervasive to
constitute a hostile work environment. Bowman, 220 F.3d at 463 (“The work environment
as a whole must be considered rather than focus on individual acts of alleged hostility.”).
While plaintiff may have been upset by her circumstances, the conduct about which she
complains was not so objectively severe to have changed the terms and conditions of her
employment. With regard to a subjective component, plaintiff admitted that she made
multiple mistakes and that it was appropriate to call them to her attention. She further stated
in her deposition that there was nothing about the December 21 or January 12 meetings or
the January 3 email that was negative, threatening or discriminatory with regard to her
pregnancy.

Title VII “does not set forth ‘a general civility code for the American

workplace.’” Burlington, 548 U.S. at 68 (quoting Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80 (1998)). There are trials and tribulations that occur in the workplace that are
simply not actionable under Title VII.

Failure to Address Claims
In her response to defendant’s motion, plaintiff does not respond to defendant’s
arguments that summary judgment is appropriate as to her claims brought pursuant to the

37

ADA, TDA, and intentional infliction of emotional distress. Defendant argues that for this
reason these claims should be dismissed. Defendant is correct.
“It is well understood . . . that when a plaintiff files an opposition to a
dispositive motion and addresses only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as conceded.” Rouse v. Caruso, No.
06-CV-10961-DT, 2011 WL 918327, at *18 (E.D. Mich. Feb. 18, 2011) (quoting Hopkins
v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003)); see
also Dage v. Time Warner Cable, 395 F. Supp. 2d 668, 679 (S. D. Ohio 2005) (plaintiff
abandoned claim by failing to address it in responsive briefing to defendant’s motion for
summary judgment); Kattar v. Three Rivers Area Hosp. Auth., 52 F. Supp. 2d 789, 798 n.7
(W.D. Mich. 1999) (“The Court will treat [due process] claim as abandoned because Kattar
did not address it in his brief in response to Defendants’ motion for summary judgment.”).
Accordingly, plaintiff’s ADA, TDA, and intentional infliction of emotional
distress claims are considered abandoned. Therefore, those claims will be dismissed on that
basis.
IV.
Conclusion
Accordingly, for the reasons stated herein, defendant’s motion for summary
judgment will be granted, and this case will be dismissed. An order consistent with this
opinion will be entered.

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ENTER:

s/ Leon Jordan
United States District Judge

39