D'Avanzo v. Copper Cellar Corporation (TV3)
Filing
62
MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 4/22/14. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
LYNN D’AVANZO,
Plaintiff,
v.
COPPER CELLAR CORPORATION,
Defendant.
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No.:
3:12-CV-655-TAV-HBG
MEMORANDUM OPINION
This civil case is before the Court on defendant Copper Cellar Corporation’s
Motion for Summary Judgment [Doc. 29], in which defendant moves for summary
judgment on plaintiff Lynn D’Avanzo’s employment discrimination claims. Plaintiff
responded in opposition to the motion [Doc. 37], to which defendant submitted a reply
[Doc. 40].
Both parties have also submitted various deposition excerpts and other
exhibits in support of their respective positions. The Court has carefully considered the
matter in light of the arguments of the parties as well as the relevant case law and, for the
reasons stated herein, the Court will grant defendant’s motion.
I.
Background
Plaintiff’s claims arise from her employment with and subsequent termination by
defendant. As described herein, plaintiff’s amended complaint [Doc. 11] asserts claims
against defendant for age, sex, religious, and national origin discrimination, as well as
claims related to each protected class for hostile work environment, in violation of the
Age Discrimination in Employment Act (“ADEA”) and Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. Plaintiff also alleges retaliation claims
in violation of Title VII and the ADEA, as well as asserting various state statutory and
common law claims [Id. ¶¶ 61-65].
Plaintiff is a female over forty-years of age, of Hungarian and Czechoslovakian
descent, and is also a member of the Jewish faith [Id. ¶ 5]. After moving to Tennessee
from New York in 2004, plaintiff was hired by defendant to work as a server at
defendant’s Calhoun’s restaurant, located in Pigeon Forge, Tennessee, in November 2004
[Doc. 29-1 at 9:20-23]. Mr. Bart Smith (“Mr. Smith”), the general manager for the
restaurant, hired plaintiff, and was the individual responsible for hiring, firing,
suspending, demoting, or promoting employees [Id. at 10-11]. Mr. Smith served in this
capacity through plaintiff’s employment.
Ms. Denise Dixon (“Ms. Dixon”) began
working at the Pigeon Forge location in 2008 as an assistant manager. Ms. Dixon did not
have the authority to hire, fire, promote, or demote employees, and had limited authority
to discipline servers or host staff [Doc. 29-5 ¶¶ 13-14]. In addition, defendant employed
numerous other host staff, servers, and bartenders at the Pigeon Forge location, the
majority of whom were under the age of forty [Id. ¶ 11].
During the course of plaintiff’s employment with defendant, defendant submitted
evidence that plaintiff had a reputation of being a good server who generally provided
good service to defendant’s customers [Doc. 29-8 at 7:23-8:1; Doc. 29-10 at 10:19-20].
Defendant, however, also submitted evidence showing that plaintiff’s co-workers did not
always consider her to be a “teamplayer” [Doc. 29-10 at 6:15; Doc. 29-2 at 5:9-18].
2
Various employees testified during discovery that plaintiff did not assist other servers in
food delivery, did not perform other duties required of servers beyond serving customers,
complained to management when restaurant procedures were not followed, and requested
specific sections where she believed she could make more money, complaining when she
did not get these sections [Doc. 29-10 at 7:5-9; Doc. 29-2 at 17-18; Doc. 29-8 at 29:1330:15]. In addition, defendant submitted portions of its Managers’ Log, which consists of
notes on the relevant restaurant events that occurred on a given evening, where
defendant’s managers, including but not limited to Ms. Dixon, had noted plaintiff as
being upset about the number of tables she received, receiving guest complaints or
compliments, or various arguments plaintiff had with servers and host staff, from various
times in 2006, 2009, and 2010 [Doc. 29-12]. Plaintiff, in an affidavit submitted in
response to defendant’s motion, disputes that she was difficult to work with or otherwise
failed to get along with her co-workers [Doc. 37-2].
A.
Plaintiff’s Discrimination and Harassment Allegations
Plaintiff alleges that, beginning in approximately 2008 and continuing through her
termination in January 2012, she was subject to discrimination as well as unwelcome
harassment because of her age, gender, religion, and national origin, all of which created
a hostile work environment. Although plaintiff’s amended complaint [Doc. 11] and
response to defendant’s summary judgment [Doc. 37-1] allege a large number of ways in
which she was discriminated against or otherwise harassed at work, her allegations fall
into two general categories: 1) comments made about plaintiff’s protected characteristics
3
by co-workers and supervisors; and 2) ways in which plaintiff was treated differently
based on the actions of her co-workers and supervisors, the majority of which plaintiff
claims was at the hands of Ms. Dixon.
With regard to comments made by co-workers, plaintiff first claims there were
several occasions where her Jewish faith was discussed or otherwise commented on by
her fellow servers. In approximately 2010, several co-workers asked plaintiff if she
wished to go to church with them, and when she responded that she did not attend church
because of her Jewish faith, plaintiff recalled that the co-workers, along with Ms. Dixon,
began “laughing” and “giggling,” and stated that they were surprised that plaintiff was
Jewish [Doc. 29-6 at 77:24-25, 81:21-22]. Later, in approximately April 2011, plaintiff
claims that Ms. Dixon stated that plaintiff was a “stupid Jew,” and that she did not like
Jewish people [Id. at 84:15]. In addition to these religion-based comments, plaintiff
claims she was referred to by Mr. Smith and others as a “Yankee” or “damn Yankee,”
[Id. at 111:14-16] and that, on one occasion at least one co-worker, referring to plaintiff,
stated “watch out for her, she’s in the [m]afia” [Id. at 123:20-124:23], because a character
on a television show shared a last name with plaintiff. Plaintiff was also asked to say
certain words because they “sounded funny coming out of [plaintiff’s] mouth” [Id. at
206:23-25]. Plaintiff attributes these comments to her Czechoslovakian and Hungarian
background. As for age-based comments, plaintiff claims that one time Mr. Smith told
plaintiff to “‘[g]et out of my way, old lady” [Id. at 159:21-24], although she did not state
specifically when this occurred. Other servers, according to plaintiff, referred to her as
4
an “old lady” sometime in 2011 [Id. at 161:5-6], stated that she was “too old for this
business” once or twice [Doc. 29-6 at 160:23-25], and Ms. Dixon also once asked
plaintiff if she was “too old” for the job [Id. at 163:24-25].
Plaintiff also claims that Ms. Dixon, as well as Mr. Smith, treated plaintiff
differently from other servers and harassed her because of her age, gender, religion, and
national origin. In particular, plaintiff claims on one occasion Ms. Dixon ordered a
hostess not to give plaintiff tables to serve, causing her tables to be empty even when the
restaurant was crowded, or would make plaintiff wait a long period of time in between
tables [Doc. 29-15]. Plaintiff also claims that Ms. Dixon yelled at plaintiff in front of
others, told others she disliked plaintiff, and told other employees to stay away from
plaintiff. In addition, Ms. Dixon would help younger servers run food out to their tables
and clean tables, but not plaintiff [Doc. 37-11 at 208:22-25]. Ms. Dixon would also
permit male servers to sit at the bar to watch football, talk on their cellular phones, and
commit other violations of company policy, while not permitting plaintiff to do so [Id. at
211:10-14]. With respect to Mr. Smith, plaintiff submits that in the summer of 2011, Mr.
Smith had asked plaintiff if she would train new servers, and although she had agreed to
do so, she later learned that someone else had been chosen to conduct the training [Doc.
29-6 at 177:20-178:3].
B.
Plaintiff’s Complaints to Management
As a result of plaintiff’s perceived mistreatment by Ms. Dixon, plaintiff submitted
a series of written complaints to defendant’s management and corporate staff beginning
5
in 2008, coupled with various oral and telephone complaints plaintiff made about Ms.
Dixon to Mr. Smith. In an anonymous October 2008 letter, plaintiff writes that Ms.
Dixon was “condescending, arrogant, sarcastic and not pleasant to work with” [Doc. 2913], and that Ms. Dixon would “double check[] every mistake that [plaintiff would]
make, making [plaintiff] feel inadequate” [Id.]. Similarly, in a September 2009 email to
defendant’s corporate offices, plaintiff described the “abuse and mistreatment” against
her by Ms. Dixon, and stated that Ms. Dixon “scolded female employees for the littlest
things, and praised the male servers for incompetence” [Doc. 29-15 at 2-3]. Plaintiff also
relayed an incident where a hostess had informed plaintiff that Ms. Dixon had told the
hostess not to give plaintiff tables [Id. at 2]. In a January 2010 letter to Mr. Smith,
plaintiff relayed her opinions that Ms. Dixon was protective of a male server who, in
plaintiff’s opinion, was “disrespectful, unruly[,] and definitely not a Team Player” [Doc.
29-16 at 3]. Plaintiff sent another similar email to Smith in May 2010 [Doc. 29-17].
After the September 2009 email, Mr. Rick Eldridge (“Mr. Eldridge”), the director
for human resources with the company, as well as Mr. Smith, conducted an investigation
as to plaintiff’s claims of discrimination, which resulted in a written counseling letter to
Ms. Dixon on September 24, 2009 [Doc. 29-20]. In the letter, Mr. Smith notes that he
had verbally counseled Ms. Dixon about the issue of singling out plaintiff in the past and
that the reported behavior “cannot continue” [Id.]. This was the only investigation or
official discipline Ms. Dixon received during the time period in question.
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C.
Plaintiff’s Termination
On January 7, 2012, while at work, plaintiff was told by several servers that a male
server, Mr. Cody Gibson, who had arrived late to work was “stealing tables” from
plaintiff, meaning that he was taking tables that were otherwise assigned to her for
himself [Doc. 29-6 at 152:11-153:1]. After plaintiff informed Ms. Dixon of what Mr.
Gibson was doing, Mr. Gibson later came up to plaintiff and confronted plaintiff about
making this accusation [Id. at 153:1-18]. Although plaintiff claims that Mr. Gibson was
the only one yelling, and that Ms. Dixon subsequently began yelling at plaintiff, Ms.
Dixon and another server present stated that both plaintiff and Mr. Gibson were arguing
with each other within hearing distance of guests, who complained about the noise [Doc.
29-11 at 16:2-4; Doc. 29-10 at 15:9-11]. Ms. Dixon told both plaintiff and Mr. Gibson
separately that if it happened again that evening she would “shut those sections down,
they could go home for the evening, and talk to [Mr. Smith] about their jobs on Monday”
[Doc. 29-10 at 18:5-9]. Plaintiff then went to the restaurant’s bathroom to call Mr. Smith
and told him what happened, to which Mr. Smith responded that he would “check into it”
[Doc. 29-6 at 155:23].
Later that evening, plaintiff sent a letter to Mr. Eldridge, informing him of the
incident and stating that Ms. Dixon had attempted to blame the confrontation on plaintiff
[Doc. 29-18 at 3]. Plaintiff also stated that Ms. Dixon had skipped plaintiff in the
rotation for tables, and again referenced the 2009 incident where a hostess told plaintiff
she had been told by Ms. Dixon not to give plaintiff tables [Id.]. After a brief response
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from Mr. Eldridge stating that he would look into the matter, plaintiff followed up with
another email relaying an incident that had occurred a month before where Ms. Dixon
had accused plaintiff of standing at the hostess stand during her entire shift and taking a
table from another server [Doc. 29-19 at 2].
After these emails, defendant initiated another investigation as to plaintiff’s
complaints. Mr. Smith spoke with Ms. Dixon and Mr. Gibson, who confirmed that Ms.
Dixon had reprimanded both of them and told them to stop arguing in front of customers
[Doc. 29-8 at 41:24-42:7]. Ms. Dixon also sent an email to Mr. Eldridge summarizing
what happened on January 7, 2012, confirming that she spoke with plaintiff and Mr.
Gibson [Doc. 29-22]. Ms. Dixon also claims that at the end of the evening, she overheard
plaintiff state to a co-worker that “we New Yorkers just slit peoples [sic] throats” [Id.], in
response to a question about how she would handle the confrontation with Mr. Gibson
and Ms. Dixon, which Ms. Dixon interpreted as an implied threat. After speaking with
those involved, reviewing the notations in the Manager’s Log, and in light of Mr. Smith’s
past discussions with plaintiff, Mr. Smith decided to terminate plaintiff because of “[t]he
many times of drama, that [defendant] finally had to end” [Doc. 29-8 at 43:2-3]. Plaintiff
was terminated on January 10, 2012 [Doc. 1-2].
D.
Plaintiff’s EEOC Charge and Complaint
On February 13, 2012, plaintiff submitted a “Statement of Circumstances Leading
to Discrimination” to the Equal Employment Opportunity Commission (“EEOC”) [Doc.
1-2]. In this document, plaintiff summarizes the letters and emails which she previously
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sent to defendant in 2010 and 2012, particularly highlighting the manner in which Ms.
Dixon treated male employees better or differently than female employees, and claims
that she was discriminated against due to her “gender (the male employees were treated
more favorably), age (I was the oldest employee and the younger employees were treated
more favorably), National Origin (I am from the North and had many comments about
me being a Yankee), Religion (I am Jewish) and suffered from a Hostile Work
Environment and Retaliation” [Id. (emphases and underlines omitted)]. Plaintiff also
noted that she reported violations of company policies or “illegal activities” [Id.].
Plaintiff followed this letter with a formal charge of discrimination on April 12, 2012
[Doc. 29-24]. In the narrative section of her charge of discrimination, plaintiff notes that
Ms. Dixon harassed and treated plaintiff differently than younger employees, would give
younger servers plaintiff’s tables to serve, and would also treat plaintiff differently than
the male employees [Id.]. Plaintiff also notes that she was “constantly called a Yankee
because I am from the north and Jewish” [Id.]. In addition to claiming she has been
discriminated against and retaliated against due to her age, gender, and religion, plaintiff
notes she was discriminated on the basis of her “national origin (Accent)” [Id.]. The
EEOC issued its right to sue letter on October 30, 2012, which appears to have included
plaintiff’s original February 2012 letter [Doc. 11-1].
Plaintiff filed her original complaint [Doc. 1] on December 19, 2012, alleging
claims of sex, gender, religious, and national origin discrimination, as well as
harassment/hostile work environment, retaliation, and various state claims.
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The
complaint alleges that plaintiff’s national origin discrimination was based on the fact that
she was “Northern” [Id. ¶ 5]. In response to a motion to dismiss filed by defendant [Doc.
4], plaintiff filed an amended complaint [Doc. 11] in which she substituted her Hungarian
and Czechoslovakian heritage for purposes of her claim of national origin discrimination
[see id. ¶ 4], as well as additional allegations.
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., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn
therefrom must be viewed in the light 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, 301 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.,
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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.
III.
Analysis
A.
Disparate Treatment
Title VII and the ADEA make it illegal for an employer to “fail or refuse to hire or
to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment” due to an
individual’s religion, sex, national origin, or age. 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C. §
623(a). A plaintiff may establish a claim under Title VII or the ADEA by offering either
direct or circumstantial evidence of discrimination. Younis v. Pinnacle Airlines, Inc., 610
F.3d 359, 363 (6th Cir. 2010); see also Grubb v. YSK Corp., 401 F. App’x 104, 113 (6th
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Cir. 2010) (citing Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.
2003) (en banc)). 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.” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009) (citing Wexler, 317
F.3d at 570 (internal quotation marks omitted)); see also Kuhn, 709 F.3d at 624. In other
words, direct evidence proves the occurrence of discrimination without requiring further
inferences. Reeves v. Swift Transp. Co., 446 F.3d 637, 640 (6th Cir. 2006). “Statements
by nondecisionmakers, or statements by decisionmakers unrelated to the decisional
process itself [cannot] suffice to satisfy the plaintiff’s burden . . . of demonstrating
animus.” Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998) (alteration in
original) (internal quotation marks omitted).
Similarly, “[i]solated and ambiguous
comments are insufficient to support a finding of direct discrimination.”
White v.
Columbus Metro. Housing Auth., 429 F.3d 232, 239 (6th Cir. 2005). Circumstantial
evidence, on the other hand, “is proof that does not on its face establish discriminatory
animus, but does allow a factfinder to draw a reasonable inference that discrimination
occurred.” Geiger, 579 F.3d at 620. With respect to her ADEA claim, whether a
plaintiff relies on direct or circumstantial evidence, the burden of persuasion remains on
the plaintiff to demonstrate by a preponderance of the evidence that age was the ‘but-for’
cause of the challenged adverse employment action. Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 177 (2009); see, e.g. Harris v. Metro. Gov’t of Nashville & Davidson Cnty.,
594 F.3d 476, 485 (6th Cir. 2010).
“The ultimate question in every employment
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discrimination case involving a claim of disparate treatment is whether the plaintiff was
the victim of intentional discrimination.” Geiger, 579 F.3d at 620.
Discrimination 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). Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 410-11
(6th Cir. 2008). Under the McDonnell Douglas framework, the burden is on the plaintiff
to first establish a prima facie case under the relevant statute. 411 U.S. at 802. A
plaintiff establishes a prima facie case of disparate treatment by showing, inter alia, that
(1) the plaintiff was a member of a protected class; (2) the plaintiff suffered an adverse
employment action; (3) the plaintiff was qualified for the position; and (4) the plaintiff
was replaced by someone outside the protected class or was treated differently than
similarly situated employees outside the protected class. See Mitchell v. Toledo Hosp.,
964 F.2d 577, 582 (6th Cir. 1992). After a prima facie case has been established, the
burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the
adverse employment action. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir.
1997). “Once the defendant meets this burden, ‘the plaintiff must produce sufficient
evidence from which the jury may reasonably reject the employer’s explanation’” as
mere pretext. Martin, 548 F.3d at 410-11 (quoting Manzer v. Diamond Shamrock Chems.
Co., 29 F.3d 1078, 1083 (6th Cir. 1994)).
In this case, the parties do not dispute that plaintiff was a member of several
protected classes, and agree that plaintiff was qualified. Where the parties disagree,
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however, is as to what actions may be considered in the Court’s analysis, as well as to
whether plaintiff was treated differently than a similarly situated employee, and whether
defendant had a non-pretextual reason for her termination. Plaintiff, who devotes the
majority of her brief to highlighting points which she believes show there are genuine
issues of material fact, argues that summary judgment is improper as to her disparate
treatment claims.
Initially, the Court notes that there is no evidence to support a finding of direct
discrimination. Although plaintiff’s complaint and brief set forth various comments
related to her age, as well as occasional comments based on her religion and national
origin, there has been no evidence that these comments were anything more than
“isolated remarks” or that these comments were proximate in time or otherwise related to
the challenged actions and the decision-making process. Blandford v. Exxon Mobil
Corp., 483 F. App’x 153, 158 (6th Cir. 2012).
1.
Adverse Action
Turning to the McDonnell Douglas framework for analyzing circumstantial
evidence, defendant first argues that several of the adverse actions which plaintiff alleges
are procedurally barred, including her claim that Ms. Dixon instructed a hostess not to
give plaintiff tables, as evidenced by plaintiff’s September 2009 letter to management
[Doc. 29-15]. Defendant submits that any claim as to this incident is barred by the 300day statute of limitations for the filing of an EEOC charge and that there is no evidence
14
of a continuing violation. Plaintiff submits that she has complied with the statute of
limitations.
The timely filing of a charge with the EEOC is a prerequisite to filing suit under
Title VII. A plaintiff claiming a discrete act of discrimination or retaliation in violation
of Title VII, who initially instituted proceedings with a state or local agency with
authority to grant or seek relief from such practice, has 300 days after the alleged
unlawful employment practice occurred to file a claim. 42 U.S.C. § 2000e-5(e)(1); Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002); Nichols v. Muskingham
College, 318 F.3d 674, 679-80 (6th Cir. 2003). A plaintiff may not recover for discrete
acts of discrimination or retaliation that occur more than 300 days before a charge is filed
with the EEOC. Morgan, 536 U.S. at 110, 113. Where, however, there is an “‘ongoing,
continuous series of discriminatory acts, they may be challenged in their entirety as long
as one of those discriminatory acts falls within the limitations period.’” Weigel v. Baptist
Hosp. of East Tenn., 302 F.3d 367, 376 (6th Cir. 2002) (quoting Haithcock v. Frank, 958
F.2d 671, 677 (6th Cir. 1992)). “‘To establish a continuing violation, plaintiff must first
produce evidence of a current violation taking place within the limitations period.
Second, plaintiff must show that the current violation . . . is indicative of a pattern of
similar discriminatory acts continuing from the period prior to the limitations period.’”
Id. (quoting Gallagher v. Croghan Colonial Bank, 89 F.3d 275, 278 (6th Cir. 1996)).
Plaintiff’s September 21, 2009 email claims that one night during her shift it
appeared that her section of tables was empty and that “[t]he hostess came up to
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[plaintiff] and apologized and said that [Ms. Dixon] told her not to go to [plaintiff’s]
tables with parties, she had to go to other tables” [Doc. 29-15 at 2]. Assuming that
denying plaintiff tables to serve constitutes an adverse action, the Court finds that this
incident is time barred, as it occurred more than 300 days before plaintiff filed her EEOC
charge in April 2012, nor is their evidence that this was a constant activity.1 In her
January 7, 2012 email, plaintiff discusses an instance where she was skipped in the
rotation of serving tables, and notes that this was an “ongoing problem” which had
occurred since she told the hostess not to sit her [Doc. 29-18 at 3]. The Court finds this
passing reference to the September 2009 incident is not evidence of “a pattern of
discriminatory acts” relating back to the September 2009 incident, Weigel, 302 F.3d at
376 (quotations omitted) nor is the fact that plaintiff may have been skipped in rotation
sufficiently related to Ms. Dixon actively informing staff not to give plaintiff tables. In
addition, the Court notes that there is no evidence of plaintiff making complaints between
2010 and 2012 pertaining to Ms. Dixon telling host staff not to give plaintiff tables, given
that her last letter before January 2012 was written in May 2010. Accordingly, to the
extent plaintiff claims that Ms. Dixon’s refusal to give plaintiff tables constitutes an
adverse action, the Court finds that such conduct is time-barred for the purposes of her
disparate treatment claim.
1
The Court also notes that, even if this evidence were not time-barred, it would be
inadmissible hearsay which cannot be relied upon to create genuine issue of material fact, given
that plaintiff’s letter is reporting what a co-worker told her about what Ms. Dixon had said. See
Fed. R. Evid. 802; Fed. R. Civ. P. 56(c)(2).
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Defendant next argues that, to the extent plaintiff claims she suffered disparate
treatment when Mr. Smith chose another employee to train new servers in the summer of
2011, this claim would be barred because plaintiff did not allege this type of adverse
action in her EEOC charge and thus has failed to exhaust her administrative remedies.
Plaintiff did not address this argument in her response to plaintiff’s motion. See E.D.
Tenn. L.R. 7.2 (failure to respond to a motion may be deemed a waiver of any opposition
to the relief sought)); see, e.g. Taylor v. Unumprovident Corp., No. 1:03-CV-1009, 2005
WL 3448052, *2 (E.D. Tenn. Dec. 14, 2005) (noting that a responding party waives
opposition to an opponent’s argument when it fails to respond to that argument).
Accordingly, the Court finds that plaintiff may not use this 2011 incident as evidence of
an adverse action.2
In addition to her termination, plaintiff references various events during the course
of her employment which she argues constitute adverse employment action, from not
always getting busy sections, being denied large tables to serve, and not always being
given tables in order, to not being allowed to talk on her cell phone or stand at the host
stand as younger servers were. To establish a claim of discrimination, a plaintiff must
show that she has “suffered a ‘materially adverse’ change in the terms or conditions of
employment because of the employer’s action.” Nguyen v. City of Cleveland, 229 F.3d
2
In addition to being excluded from plaintiff’s EEOC charge, the person who was chosen
to train new employees was another female over 40 years of age [Doc. 29-6 at 165:18-20,
178:10], and plaintiff has not presented any evidence to indicate this person was of a different
religion or different national origin, so that plaintiff would likely have been unable to prove a
prima facie case of discrimination.
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559, 562 (6th Cir. 2000). “A ‘mere inconvenience or an alteration of job responsibilities’
or a ‘bruised ego’ is not enough to constitute an adverse employment action.” 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, 886 (6th Cir. 1996)). In Kocsis, the Sixth Circuit,
echoing other courts, listed various factors to consider in which an employment action
was materially adverse, including: “‘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.’” Kocsis, 97 F.3d at 886 (quoting Crady v. Liberty Nat’l Bank &
Trust, Co., 993 F.2d 132, 136 (7th Cir. 1993)).
Upon review of the many actions contained within plaintiff’s complaint and brief,
the Court finds that her 2012 termination is the only event that constitutes an adverse
employment action that is not otherwise procedurally barred. During the course of her
depositions, plaintiff stated during discovery that she was not always assigned a bad
section of the restaurant, that she rotated through the restaurant like the other servers, that
she had “good tables” and “bad tables,” as well as good and bad sections, and that she
sometimes, but not always, worked “banquets” [Doc. 29-6 at 166:17-167:16]. Although
plaintiff could not remember whether she was a “shift leader” in 2011, plaintiff testified
that she had served as a shift leader once or twice a month from 2008-2012.
As
evidenced by plaintiff’s statements, then, the majority of plaintiff’s complaints in this
regard are examples of mere inconveniences or slight alterations of responsibilities which
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defendant has submitted are common practice at defendant’s restaurant [See Doc. 29-1 at
21-23]. Although plaintiff references the fact that she may have lost money on these
occasions, plaintiff’s statements and defendant’s evidence both indicate that a server’s
earnings would vary from shift to shift. Plaintiff has not presented evidence that these
discrepancies were related to discrimination rather than the nature of her employment.
While plaintiff argues that she was not permitted to use her cellular phone, stand at the
host stand, or other activities when Ms. Dixon was working, plaintiff has not argued or
presented evidence showing that any of these actions constitute a material loss of
benefits. Accordingly, the Court finds that plaintiff’s termination is the only adverse
action for the purposes of her disparate treatment claim.
2.
Defendant’s Proffered Reason and Pretext
Assuming plaintiff could establish her prima facie case of discrimination regarding
her termination, the Court concludes that defendant is nonetheless entitled to summary
judgment on plaintiff’s disparate treatment claim because it has proffered a legitimate,
non-discriminatory reason for her termination and plaintiff has failed to create a genuine
issue of material fact as to pretext. See Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495,
502 (6th Cir. 2009) (noting that court need not address prima facie issue where plaintiff
fails to establish pretext). Defendant has argued that plaintiff’s inability to get along with
her co-workers and supervisors was the basis for her termination, as evidenced by the
recordings in the Manager’s Log, the altercation that occurred on January 7, 2012, as well
as the deposition testimony of Mr. Smith. Mr. Smith testified that he had previously
19
spoken with plaintiff about getting along better with her co-workers, about how her
behavior was affecting other co-workers’ performance, and that her behavior could lead
to her termination [Doc. 29-8 at 35:7-16]. See Viergutz v. Lucent Techs., Inc., 375 F.
App’x 482, 484 (6th Cir. 2010) (holding that employee’s poor reputation for getting
along with others was legitimate reason for not hiring employee); see, e.g. McShane v.
U.S. Attorney Gen., 686 F.3d 779, 792 (11th Cir. 2005) (holding that not getting along
well with others was a legitimate, non-discriminatory reason for termination). Because
defendant has proffered a non-discriminatory reason for her termination, the burden shifts
to plaintiff to produce evidence of pretext. See Chattman v. Toho Tenax Am., Inc., 686
F.3d 339, 349 (6th Cir. 2012).
“[A] plaintiff can establish pretext by showing ‘(1) that the proffered reasons had
no basis in fact, (2) that the proffered reasons did not actually motivate his [discipline], or
(3) that they were insufficient to motivate discharge.’” Id. (quoting Manzer, 29 F.3d at
1084).
“The third category of pretext consists of evidence that other employees,
particularly employees outside the protected class, were not disciplined even though they
engaged in substantially identical conduct to that which the employer contends motivated
its discipline of the plaintiff.” Id. (citation omitted). In examining pretext, it is not
required that “the decisional process used by the employer be optimal or that it left no
stone unturned. Rather, the key inquiry is whether the employer made a reasonably
informed and considered decision before taking an adverse employment action.” Smith v.
Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998).
20
In this case, plaintiff has presented no evidence that would create a genuine issue
of material fact as to whether defendant, particularly Mr. Smith, actually believed that
defendant did not get along well with others and that this caused a disruption in the
restaurant, based on the statements of plaintiff’s co-server who heard defendant arguing
in front of customers on January 7, 2012, as well as the entries in the Manager’s Log.
See id. (“[I]n order for an employer's proffered non-discriminatory basis for its
employment action to be considered honestly held, the employer must be able to establish
its reasonable reliance on the particularized facts that were before it at the time the
decision was made.”). Although plaintiff submits that she does not agree with the entries
in the Manager’s Log, she has submitted no “proof to the contrary.” Id. As to the third
form of pretext, plaintiff has submitted a table of employee conduct which she claims
took place during the course of her employment and for which employees were not
terminated, through which she argues that plaintiff’s failure to get along with others was
insufficient to justify her termination [See Doc. 37-1 at 12-13]. In doing so, however,
plaintiff does not identify another similarly situated employee who engaged in
“substantially identical conduct” resulting in her termination. Chattman, 686 F.3d at 349.
To the extent plaintiff points to Mr. Gibson’s treatment as evidence of pretext, as he was
not terminated after the January 7, 2012 incident, defendant submitted evidence showing
that Mr. Gibson had not been employed as long as plaintiff, did not have as strong a
reputation for not getting along with others, and was eventually terminated for disrupting
the work environment, so that the two are not similarly situated [Docs. 29-5 at ¶ 15; 29-8
21
at 42:1-43:6]. Accordingly, the Court finds that plaintiff has not created a genuine issue
of material fact as to pretext, and defendant is entitled to summary judgment on
plaintiff’s disparate treatment claim.
B.
Hostile Work Environment
Defendant also argues that plaintiff has presented no evidence showing that she
was subject to a hostile working environment based on her religion, national origin,
gender, or age. It is well settled that Title VII protects employees from a “workplace
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.” Barrett v. Whirlpool Corp., 556 F.3d 502, 514 (6th Cir. 2009)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). To prove a hostile work
environment claim based on harassment by a coworker, a plaintiff must establish that: (1)
she was a member of the protected class; (2) she was subjected to unwelcome
harassment; (3) the harassment was based on her protected characteristic; (4) the
harassment had the effect of unreasonably interfering with her work performance and
created an objectively intimidating, hostile, or offensive work environment; and (5) the
employer knew or should have known of the alleged harassment and failed to implement
prompt and appropriate corrective action. See Blankenship v. Parke Care Ctrs., Inc., 123
F.3d 868, 872 (6th Cir. 1997); see also Bourini v. Bridgestone/Firestone North Am. Tire,
LLC, 136 F. App’x 747, 750 (6th Cir. 2005) (applying McDonnell Douglas framework to
claim of religious discrimination); Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834-35
22
(6th Cir. 1996) (analyzing hostile work environment claim in context of the ADEA).
This standard is “markedly different” from the one applied to harassment by
supervisors. Blankenship, 123 F.3d at 873. Under this standard, “the employer can be
liable only if its response manifests indifference or unreasonableness in light of the facts
the employer knew or should have known.” Id.
With regard to the fourth element, the plaintiff must show that the conduct was
“severe or pervasive enough to create an environment that a reasonable person would
find hostile or abusive and the victim must subjectively regard that environment as
abusive.” Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000).
Alternatively stated, the plaintiff must show that the environment was both objectively
and subjectively hostile; that is, the conduct was severe or pervasive enough to create an
environment that a reasonable person would find hostile or abusive, and the victim
subjectively regarded the environment as abusive. Thornton v. Fed. Express Corp., 530
F.3d 451, 455 (6th Cir. 2008). In order to evaluate this element, the court must consider
all of the circumstances, including the frequency of the discriminatory conduct; the
severity of the conduct; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s
performance. Id. The conduct complained of “must be extreme to amount to a change in
the terms and conditions of employment,” Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998), and “simple teasing . . . offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions
23
of employment.” Id. (quotations omitted). A work environment viewed in its totality
may satisfy the standard of an abusive work environment, even if no single episode rises
to the level of a hostile work environment. Williams v. Gen. Motors Corp., 187 F.3d 553,
564 (6th Cir. 1999).
1.
Religion and National Origin
Turning first to plaintiff’s arguments that a hostile work environment existed
because of her religion and/or national origin, the only statements or comments plaintiff
attributes to her religion are the 2010 interactions she had with co-workers who invited
her to attend church or church activities with them and Ms. Dixon’s April 2011 comment
that she did not like Jewish people and act of calling plaintiff a “stupid Jew.” Defendant
argues that these comments are time-barred and are not part of any continuous activity.3
In addition, defendant argues that there has been no evidence that the comments were
pervasive or severe enough so as to contribute to a hostile work environment.
As previously discussed, absent evidence of a continuing violation, plaintiff’s
claims pre-dating June 17, 2011 are time barred. Plaintiff does not dispute that there
were no disparaging remarks made as to plaintiff’s religion after this date. To the extent
plaintiff attempts to argue that the other actions taken by Dixon, i.e. allowing other
servers to sit at the restaurant bar and watch television, helping servers with their duties,
and the like, are evidence of an “ongoing continuous series of discriminatory acts,” these
3
Although the Court views the evidence in a light most favorable to the plaintiff,
defendant notes that Ms. Dixon denies ever making this comment, and that none of defendant’s
other employees recall hearing this comment [Doc. 30 at 11 n.20].
24
actions, which plaintiff alleges occurred within the limitations period, do not evidence a
“continuing violation” which would permit consideration of the time-barred comments.
Id. at 376. In particular, the Court notes that plaintiff has not shown these acts to be
“sufficiently similar or related to the time-barred acts,” id. at 377, given that there has
been no evidence presented that servers were treated differently on the basis of religion,
nor any evidence that these episodes were pervasive or severe. Thus, the Court finds that
there was no “act contributing to [plaintiff’s religion-based claim] within the filing period
. . . .” Morgan, 536 U.S. at 117. Even if these comments could be considered in
determining whether a hostile work environment existed, the Court notes that, at most,
these remarks are isolated and do not rise to the requisite level of severity, under the
relevant case law, to support plaintiff’s claim. See Hussein v. Highgate Hotels 126 F.
App’x 256, 268-69 (6th Cir. 2005) (noting that offhand comments and isolated remarks
regarding employee’s ethnicity could not create a hostile work environment).
The Court reaches a similar conclusion with regard to plaintiff’s hostile work
environment claim based on her national origin, that is, her Hungarian and
Czechoslovakian descent. In this regard, plaintiff submits that she was often called a
“Yankee” or “damn Yankee” by her co-workers, including Mr. Smith, which occurred
from 2009-2012. Similarly, plaintiff points to the fact that she was asked to say certain
words because of her accent, that she was referred to as “New York,” and that several coworkers claimed she was in the mafia, as evidence of harassment. Initially, the Court
notes that plaintiff has submitted no evidence that these comments bear any connection to
25
her Hungarian/Czechoslovakian descent, so that these comments could be said to have
been made “based on” her national origin. Blankenship, 123 F.3d at 872. In fact, there is
no evidence that any of plaintiff’s co-workers were aware of or knew about plaintiff’s
heritage, other than plaintiff’s statements during depositions that she had told Ms. Dixon
of her Czechoslovakian and Hungarian descent, further diminishing the possibility that
these comments were based on her ethnic background. It appears that these comments,
and plaintiff’s reliance upon them to sustain her claim, would be more relevant in relation
to plaintiff’s original claim that she was discriminated against because she was
“Northern,” as she is originally from New York [See Doc. 1 ¶ 5], rather than to the claim
presently before the Court.4 Similarly, the Court notes that plaintiff has not presented any
evidence to create a triable issue of fact that, to the extent her accent was the source of
disparaging remarks, any accent was connected to her Czechoslovakian or Hungarian
background. Cf. Berke v. Ohio Dep’t of Pub. Welfare, 628 F.2d 980, 981 (6th Cir. 1980)
(affirming finding of discrimination where plaintiff, who was born in Poland and
emigrated to the United States, had shown she was denied two positions based on her
accent, “which flowed from her national origin”).
As to the fourth factor, in considering the severity or pervasiveness of these
comments, even when resolving all inferences in her favor, plaintiff has failed to create
4
The Court notes, however, that, to the extent plaintiff’s response attempts to revive her
claim that she was discriminated against because she was from New York, this claim would be
insufficient under Title VII’s provisions protecting against discrimination on the basis of national
origin. See Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 88 (1973) (noting generally that
national origin “refers to the country where a person was born, or, more broadly, the country
from which his or her ancestors came”).
26
an issue of triable fact as to whether a reasonable person would find these comments
offensive to someone of Hungarian or Czechoslovakian descent, given that there has been
no evidence connecting these remarks with her heritage. Nor has plaintiff argued or
presented sufficient evidence that any of these comments interfered with her ability to
perform her job duties. Crawford, 96 F.3d at 835.5
Because she cannot show that the comments regarding her religion or national
origin created an objectively hostile work environment, summary judgment will be
granted as to plaintiff’s hostile work environment claims based on religion or national
origin.
2.
Age
Plaintiff also argues that she was subject to a hostile work environment because of
her age. In support of her position, plaintiff submits that between 2011 up through her
termination in 2012 Mr. Smith referred to plaintiff as “old lady,” and that on other
occasions various co-workers made comments stating plaintiff was too old for the job,
was too old for the restaurant business, or that she could not keep up with the younger
servers. In addition, plaintiff contends that Ms. Dixon would hang out with the younger
workers but would never talk to plaintiff, that she would give younger servers preferred
tables, let them stay late, and let them leave to purchase beer and cigarettes. In other
5
In addition, the Court finds that, even viewing these comments in light of the other
alleged conditions of employment, that is, receiving less favorable treatment than her coworkers, plaintiff has not shown a factual question as to whether she was harassed because of her
national origin under the “totality of the circumstances” because she has not presented evidence
that any such treatment was based on her protected characteristic. Williams v. Gen. Motors
Corp., 187 F.3d 553, 564 (6th Cir. 1999).
27
words, plaintiff submits, Ms. Dixon would let younger servers “get away with a lot of
stuff” [Doc. 37-1 at 29]. Defendant submits that plaintiff cannot show that any such
conduct or comments were severe or pervasive enough to present a triable question of
fact, and cannot show that defendant itself had reason to know of any such comments.
Upon review of the evidence of record related to plaintiff’s claim of age-based
harassment, the Court concludes that plaintiff has not created a genuine issue of fact as to
her age-based hostile environment claim.
Turning first to the comments made by
plaintiff’s co-workers, plaintiff has not argued that such remarks were anything beyond
the occasional offhand comment that is not prohibited under the ADEA, as they
constitute “mere offensive utterances” as opposed to physically threatening or
humiliating conduct or remarks. See Crawford, 96 F.3d at 836 (finding that comments,
such as “‘old people should be seen and not hard,’” was not enough to create a hostile
working environment). These remarks are insufficient, under the case law, to meet the
objective requirement of offensiveness. Similarly, as to the comments made by Mr.
Smith, as plaintiff’s supervisor, plaintiff has not presented evidence indicating that any
such comments gave rise to an objectively hostile work environment.
Instead, analyzing plaintiff’s claims of age-related comments in conjunction with
plaintiff’s claims about the mistreatment and other comments she suffered at the hands of
28
Ms. Dixon and others,6 the Court finds plaintiff’s circumstances and arguments are
similar to the plaintiff in Crawford. In that case, the plaintiff had been employed at a
hospital for several years when a new supervisor was hired, after which the plaintiff
began to complain about the work environment, particularly the actions and comments of
her new supervisor. Id. at 832. The plaintiff based her allegations of a hostile work
environment on various comments about age, some of which were made in her presence,
some of which she had heard from co-workers, and also argued that the office was
divided between those who were older and those who were younger. Id. The plaintiff
also argued that the older workers were not included in anything, whether it be office
parties or changes to office policy. Id. at 833. In addition, there was evidence that the
plaintiff was also known to argue with other, younger co-workers. In affirming the
district court’s grant of summary judgment, the Sixth Circuit noted:
Unquestionably, there was hostility and abusiveness in this working
environment, but the evidence suggests that the atmosphere stemmed from
a simple clash of personalities. In any event, there is an absence of evidence
that it stemmed from a dislike of people over a particular age. Indeed, many
of the comments that [plaintiff] asserts were age-based were, in reality,
neutral . . . it is [plaintiff] who simply assumes, without objectively
articulable support, that when she was insulted with age-neutral insults, it
was because of her age.
Along those same lines, we think it is patent that we must entirely discount
the plaintiff's complaints insofar as they focus on coworkers having parties
without inviting her, or coworkers being surly or impolite. Even if
coworkers failed to invite her to parties because she was over 55, it seems
6
For example, in her response plaintiff notes that Ms. Dixon would comment to other
employees that she did not like plaintiff, that she hated the plaintiff, and that she “couldn’t stand
her guts” [Doc. 37-11 at 173], and that on one occasion, a younger server cursed at plaintiff
[Doc. 37-1 at 7].
29
obvious that the ADEA was not intended to remedy minor social slights
and the resulting hurt feelings.
Id. at 836; see also 250 F. App’x 120, 129 (6th Cir. 2007) (finding that incidents of
laughing and teasing handicapped individual did not satisfy the standard for a hostile
work environment under Michigan law, which mirrored Title VII, “because they
evidence[d] mere personal dislike and constitute[d] mere teasing that [did] not establish
an actionable hostile work environment”).
In this case, the evidence presented shows that plaintiff and Ms. Dixon did not get
along, and that plaintiff did not always get along well with all of her co-workers.7 As a
result, Ms. Dixon may have interacted more with plaintiff’s co-workers, the majority of
whom were younger. Ms. Dixon may have been more willing to help them during the
course of a shift than she was willing to help plaintiff. Ms. Dixon may have talked about
plaintiff and expressed her dislike about her to co-workers.8 Plaintiff, however, has not
presented any evidence that the basis for this differential treatment was age, rather than
personal animosity. In addition, while plaintiff cites to numerous examples in which Ms.
Dixon permitted younger co-workers to engage in conduct that may have violated
7
Although plaintiff submitted an affidavit in response to plaintiff’s motion that she was
not “difficult to work with” and she “got along with her co-workers,” the Court notes numerous
references in her deposition testimony where she noted disputes with her co-workers, in addition
to the records contained in the Manager’s Log. See United States ex rel. Compton v. Midwest
Specialties, Inc., 142 F.3d 296, 303 (6th Cir. 1998) (“[A] party cannot avoid summary judgment
through the introduction of self-serving affidavits that contradict prior sworn testimony.”).
8
The Court notes, however, as defendant argues, that the majority of the statements
plaintiff claims are attributable to Ms. Dixon may not defeat summary judgment as they are
based on inadmissible hearsay from co-workers. See Fed. R. Civ. P. 56(c)(2) (noting that party
could object to material that cannot be presented a form that would be admissible in evidence).
30
company policy, plaintiff has not argued that she attempted to engage in the same
conduct, or, as previously discussed, that age was the basis for the disparity. Similarly,
plaintiff has not shown that the actions she has complained of from other co-workers, i.e.
curse words, serving tables that were meant to be serviced by plaintiff, or similar actions,
bore any connection to her age. Given the Supreme Court’s caution against turning
employment discrimination laws into a “general civility code,” Faragher, 524 U.S. at
788, the Court finds that summary judgment is proper as to plaintiff’s hostile work
environment claim as it relates to her age without discussing whether defendant knew of
the conduct or had an obligation to take corrective action.9
Accordingly, considering plaintiff’s allegations with respect to each protected
class of which she was a member individually and under the totality of the circumstances,
the Court finds that defendant is entitled to summary judgment on plaintiff’s hostile work
environment claim.
C.
Retaliation
Defendant also moves for summary judgment as to plaintiff’s claims of retaliation.
Specifically, defendant argues that there is no genuine issue of material fact as to whether
plaintiff engaged in protected activity under Title VII or the ADEA, as the letters and
emails do not complain of any harassment based on a protected characteristic. Defendant
9
The Court reaches the same conclusion with regard to plaintiff’s claim of a hostile work
environment based on her sex. In her response to defendant’s motion, plaintiff offers no
offensive remarks or other comments to support a claim of a hostile work environment, nor
presents any separate argument pertaining to this claim. To the extent that plaintiff argues that
she was subjected to less preferential treatment because of her gender, the Court applies the same
analysis as previously discussed and finds that plaintiff has not shown that her gender was the
basis for any of Ms. Dixon’s or other co-workers’ conduct.
31
also argues that there is no evidence of a causal connection. Plaintiff argues that she can
establish a causal connection given the close proximity between her final emails
regarding Ms. Dixon and her termination. In addition, plaintiff argues that Dixon’s
actions of subjecting her to severe and pervasive harassment after her reports constitute
sufficient evidence to defeat summary judgment.
Both Title VII and the ADEA prohibit retaliation against an employee who has
opposed an unlawful employment practice or “has made a charge, testified, assisted or
participated in any manner” in an investigation, proceeding, hearing or litigation. 42
U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d). To establish a prima facie case of retaliation,
plaintiff must prove that: (1) she engaged in an activity protected by Title VII or the
ADEA; (2) her exercise of protected rights was known to defendant; (3) defendant
thereafter took an adverse employment action against her, or she was subjected to severe
or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection
between the protected activity and the adverse employment action or harassment.
Blizzard v. Marion Tech. Coll., 698 F.3d 275, 288 (6th Cir. 2012); Morris v. Oldham
Cnty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000). “A plaintiff asserting such a claim
must prove that she took an overt stand against suspected illegal discriminatory action to
establish that she engaged in a protected activity.” Blizzard, 698 F.3d at 288. “An
employee ‘may not invoke the protections of the Act by making a vague charge of
discrimination.’” Id. (quoting Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir.
2007)).
32
“Courts analyzing retaliation claims apply the McDonnell Douglas/Burdine
framework of shifting burdens of production and proof.” Dixon v. Gonzales, 481 F.3d
324, 333 (6th Cir. 2007) (citation omitted). “To establish a causal connection, a plaintiff
must proffer evidence sufficient to raise the inference that her protected activity was the
likely reason for the adverse action.” Dixon, 481 F.3d at 333 (internal quotation marks
and citations omitted).
Where an adverse employment action occurs very close in time after an
employer learns of a protected activity, such temporal proximity between
the events is significant enough to constitute evidence of a causal
connection for the purposes of satisfying a prima facie case of retaliation.
But where some time elapses between when the employer learns of a
protected activity and the subsequent adverse employment action, the
employee must couple temporal proximity with other evidence of
retaliatory conduct to establish causality.
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (finding plaintiff
met prima facie case where plaintiff was fired on same day employer learned of EEOC
charge). Should a plaintiff succeed in making out a prima facie case, “the burden of
production of evidence shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its actions.” Morris, 201 F.3d at 792-93 (internal quotation
marks and citation omitted). If defendant successfully produces such a legitimate reason,
then the burden of production returns to the plaintiff to demonstrate by a preponderance
of the evidence that the proffered reason was a mere pretext for discrimination. Fuhr v.
Hazel Park Sch. Dist., 710 F.3d 668, 675 (6th Cir. 2013).
In this case, the only correspondence which could qualify as engaging in a
protected activity is in her September 2009 letter to a corporate officer of defendant [Doc.
33
29-15]. In the letter, plaintiff writes that ‘[t]here have been several instances where [Ms.
Dixon] has scolded female employees for the littlest things, and praised the male servers
for incompetence” [Id. at 3]. The Court finds that reporting that male employees were
being treated differently than female co-workers could qualify as protected activity,
viewing the evidence in a light most favorable to plaintiff. See Blizzard, 698 F.3d at 28889 (finding that oral complaints of being treated differently than younger employees
could qualify as protected activity); see, e.g. McKinley v. Skyline Chili, Inc., 534 F.
App’x 461, 467 (6th Cir. 2013) (citing to Blizzard and finding that plaintiff’s statements
that younger and male counterparts were not being held as accountable as she was could
constitute protected activity). The Court finds, however, that to the extent plaintiff relies
upon her termination as an “adverse employment action,” plaintiff failed to present any
evidence of a causal connection, the fourth element for a retaliation claim, particularly in
light of the fact that she was not terminated until January 2012, more than two years after
the email was sent. To the extent that plaintiff argues that Ms. Dixon’s treatment of
plaintiff was “retaliatory harassment” by a supervisor, the Court finds this argument
insufficient as well. As previously discussed, plaintiff has presented no evidence that Ms.
Dixon’s treatment of the plaintiff was severe or pervasive so as to constitute the type of
34
harassment barred by Title VII or the ADEA, nor is there evidence of a causal connection
to support this variation of plaintiff’s claim.10
With regard to the remaining letters and emails plaintiff sent to managers, the
Court finds that none of these communications can be said to constitute an “overt stand
against suspected illegal discriminatory action” so as to be protected activity within the
meaning of the statutes. Blizzard, 698 F.3d at 288. Although plaintiff occasionally
references the terms “discrimination” and “hostile environment,” neither of these terms
are associated with any allegations that Ms. Dixon or another employee was
discriminating on the basis of gender, age, religion, or national origin. At most, these
communications indicate plaintiff’s disagreement with Ms. Dixon’s leadership, plaintiff’s
reports of co-workers’ conduct, or her general feelings of Ms. Dixon, evidencing their
personal animosity with one another rather than illegal discrimination. See Booker v.
Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313-14 (6th Cir. 1989) (finding
that letter questioning the correctness of a decision made by employer, disputing
employer’s position with regard to plaintiff’s conduct, and vague charge of “ethnocism”
insufficient to constitute protected activity); see also Manstra v. Norfolk S. Corp., No.
10
In addition, and as referenced by defendant in its brief, Ms. Dixon would not likely
qualify as a “supervisor” for retaliatory harassment purposes in light of the Supreme Court’s
opinion in Vance v. Ball State University, 133 S.Ct. 2434 (2013), which held that an employer’s
vicarious liability for unlawful harassment “only when the employer has empowered that
employee to take tangible employment actions against the victim, i.e., to effect 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,” id.
There has been no evidence presented that Ms. Dixon was empowered to take any of these
actions. The Court need not decide this issue, however, to determine that defendant is entitled to
summary judgment on its retaliation claims.
35
3:10-CV-166, 2012 WL 1059950, at *11 (E.D. Tenn. Mar. 28, 2012) (finding that
plaintiff’s complaints about the “harsh” or “condescending” manner in which supervisor
spoke to her and other complaints of unfair or harsh treatment did not constitute protected
activity). Notably, in the letters preceding her January 10, 2012 termination, plaintiff
does not employ the terms “harassment,” “discrimination,” nor discuss how she or any of
her co-workers were being treated differently based upon some protected characteristic.
Accordingly, the Court concludes that plaintiff has not created a genuine issue of material
fact as to her claims of retaliation and summary judgment will be granted in defendant’s
favor.11
D.
State Law Claims
Plaintiff alleges numerous violations of Tennessee statutory law as well as state
tort claims. The Court’s analysis of plaintiff’s federal civil rights and Title VII claims,
however, effectively disposes those claims of which this Court has original jurisdiction.
While the Court has broad discretion under 28 U.S.C. § 1367(c)(3) to dismiss or to retain
jurisdiction over pendent state law claims under these circumstances, “the usual course is
for the district court to dismiss the state-law claims without prejudice if all federal claims
are disposed of on summary judgment.” Thacker v. Lawrence Cnty., 182 F. App’x 464,
472 (6th Cir. 2006) (quoting Brandenburg, 253 F.3d 891, 900 (6th Cir. 2001)). See, e.g.,
11
Even if plaintiff could prove a prima facie case of retaliation, the Court notes that
defendant has proffered a legitimate reason for her termination, and, as previously discussed with
respect to her disparate treatment claim, plaintiff has not created a genuine issue of material fact
as to pretext. See Chen v. Dow Chem. Co., 580 F.3d 394, 402 (6th Cir. 2009) (affirming
summary judgment where plaintiff failed to show genuine issue of fact as to pretext).
36
Jackson v. Town of Caryville, Tenn., Nos. 3:10-CV-153, 3:10-CV-240, 2011 WL
5143057, at *10 (E.D. Tenn. Oct. 28, 2011). Thus, pursuant to § 1367(c), in the exercise
of its discretion and in the interests of comity, the Court will decline to exercise
continuing “pendent” or supplemental jurisdiction over plaintiff’s remaining state law
claims. 28 U.S.C. § 1367(c); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 72526 (1966); Brandenburg, 253 F.3d at 900. As no compelling facts support this Court’s
continued jurisdiction of plaintiff’s remaining state law claims, those will be dismissed.
IV.
Conclusion
For the reasons stated herein, defendant’s Motion for Summary Judgment [Doc.
29] will be GRANTED to the extent that the Court finds summary judgment in favor of
defendant appropriate as to all of plaintiff’s federal discrimination claims. Plaintiff’s
federal causes of action will be dismissed with prejudice, plaintiff’s state causes of
action will be dismissed without prejudice, and this case will be closed.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
37
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