Smith v. First Tennessee Bank National Association (TV2)
Filing
52
MEMORANDUM OPINION AND ORDER ; For the reasons stated herein, defendant's Motion for Summary Judgment 28 is GRANTED IN PART and DENIED IN PART. Plaintiff's claim against defendant for negligent infliction of emotional distress will be DISMISSED. Signed by Chief District Judge Thomas A Varlan on 1/4/16. (ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
KIMBERLY D. SMITH,
Plaintiff,
v.
FIRST TENNESSEE BANK
NATIONAL ASSOCIATION,
Defendant.
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No.: 3:14-CV-249-TAV-CCS
MEMORANDUM OPINION AND ORDER
This civil action is before the Court on defendant First Tennessee Bank National
Association’s Motion for Summary Judgment [Doc. 28]. Plaintiff Kimberly D. Smith
filed a response in opposition [Doc. 41] along with responses and objections to
defendant’s statement of undisputed material facts [Doc. 40 (sealed) (hereinafter
“plaintiff’s objections”)],1 to which defendant replied [Doc. 42]. Plaintiff then filed a
supplemental response [Doc. 48], and defendant replied [Doc. 49].
The Court has
carefully considered the matter and, for the reasons stated herein, will grant in part and
deny in part defendant’s motion as to plaintiff’s claims.2
1
Defendant filed a motion to strike and disregard or, in the alternative, to seal plaintiff’s
responses and objections to defendant’s statement of undisputed material facts [Doc. 43].
Plaintiff responded in opposition [Doc. 44], and defendant replied [Doc. 46]. The Court found
plaintiff had good cause for submitting her responses and objections, but granted defendant’s
motion to seal plaintiff’s filing [Doc. 47].
2
Defendant requested oral argument on its motion for summary judgment [Doc. 45 p. 1].
The Court considers requests for oral argument on a case-by-case basis, and upon review of the
record, the Court finds that oral argument is not needed.
I.
Background
Plaintiff, Kimberly D. Smith, worked for defendant, First Tennessee Bank
National Association, from May 2012 until June 2013, although the exact date of her
termination is in dispute [Doc. 40 pp. 1, 36–37].3 Plaintiff’s brother-in-law is blind,
severely autistic, and diabetic, and he lives with plaintiff and her husband [Id. at 7].
Plaintiff alleges that First Tennessee Bank terminated her due to her association with her
disabled brother-in-law, while defendant claims it fired plaintiff because of her poor work
performance.
Plaintiff was hired by Karen Stuck, the Senior Vice-President and Regional Sales
Manager, to be a Financial Services Representative (“FSR”) at both the South Grove and
the South Knoxville branches of First Tennessee Bank [Id. at 1–2]. Plaintiff was a fulltime employee and worked at both branches throughout the week [Id. at 2]. Sandra
Couch managed both the South Grove and South Knoxville branches, and operated as
plaintiff’s direct supervisor and manager [Id.]. Ms. Couch reported directly to Ms. Stuck
[Id.].
As a FSR, plaintiff’s job was customer-service focused, and her duties included
opening and closing accounts, answering the phone, greeting customers, and making
wealth-management appointments for customers [Id. at 4]. FSRs had monthly sales
3
Plaintiff has disputed many facts from defendant’s statement of undisputed material
facts [Doc. 32]. The Court will primarily cite to plaintiff’s objections, as it incorporates both
defendant’s facts and plaintiff’s responses to those facts [Doc. 40]. Document 40 is sealed
because it contains confidential information regarding defendant’s customers [See Doc. 47].
Accordingly, the Court will generalize some of the facts that are pertinent to this motion.
2
goals, weekly goals for outbound calls to current customers, and monthly goals for how
many customers they referred to defendant’s wealth-management group [Id. at 6].
Plaintiff asserts, however, that her overall job performance was evaluated on an annual
basis [Id.]. Plaintiff admits that she did not meet all of her monthly goals but maintains
that she received a 100% overall rating in her 2012 performance review [Id. at 6–7].
Plaintiff also admits that one of her co-workers would regularly point out errors in
plaintiff’s work product in order to help improve her own work performance [Id. at 14].
Plaintiff “often seemed upset” when her co-worker did so [Id.].
Defendant’s practice is that “every customer should be greeted by all available
employees” when a customer enters the bank [Id. at 17]. As Ms. Couch described, “[w]e
stand up and greet our customers, it’s not an option” [Id. at 5]. Plaintiff acknowledges
that greeting customers is “important to any Bank open to the public” [Id. at 4]. Despite
this, plaintiff argues it would have been “impossible” for her “to meet the honest and
objectively neutral requirements of her job if she had to ‘stand and greet’ every
customer” [Id.]. As a result, plaintiff admits that when a customer would come in her
direction, or when the other FSRs were busy, she would “[j]ust look up and say hello” to
the customer [Id. at 5–6].
Defendant maintains that plaintiff’s failure to stand and greet customers was an
“ongoing” issue, but plaintiff disputes this contention [Id. at 17]. To correct the issue,
Ms. Couch had plaintiff’s computer physically moved on her desk in both branches so as
to enable plaintiff to better see customers as they walked in the door [Id. at 17–18].
3
Plaintiff does not deny this [Id. at 18]. She stated in her deposition that “[s]ometimes I
may have been looking down and not greeted every customer that walked through the
door. . . . I probably could have improved on that some” [Id. at 20]. Plaintiff does
dispute, however, defendant’s assertion that her coworkers observed her regularly failing
to greet customers, including one incident when a co-worker allegedly counted twentyone customers who plaintiff failed to greet in a four-hour time period [Id. at 17–18]. In
response, plaintiff also submitted evidence from a co-worker who noted that plaintiff’s
desk was further from the bank entrance than that of the other FSR on duty, so she would
have to “put forth an effort” to be able to see everyone coming into the bank [Doc. 48 p.
2].
All of the FSRs needed to coordinate their lunch schedules so as to ensure that at
least one FSR remained at the branch at all times [Doc. 40 p. 4]. Plaintiff needed to leave
the bank’s premises each day during lunch in order to take care of her disabled brotherin-law [Id. at 7–8]. While defendant claims that other employees would adjust their
lunch schedules in order to accommodate plaintiff’s need to leave during lunch, plaintiff
maintains that she gave her co-workers their choice as to when they would take lunch [Id.
at 8]. Defendant claims that plaintiff was “often” gone on her lunch break for longer than
the one hour she was allotted, but plaintiff disputes this assertion, noting that she did not
take longer than an hour “very often, if ever” [Id. at 8–9].
Defendant also maintains that plaintiff received several customer and co-worker
complaints, which plaintiff denies [Id. at 20–23, 27–29]. Plaintiff asserts that she was
4
counseled only once during her tenure working for defendant, in which she was told
about a customer complaint regarding a loan application [Id. at 21].
Plaintiff
acknowledged in her deposition that if an employee had several customer complaints,
“that could be considered unacceptable work performance” [Id. at 20]. Beyond the one
customer complaint to which plaintiff admits, plaintiff also acknowledges that she once
incorrectly advised a customer regarding an “ACH” stop payment, which resulted in her
co-worker needing to fix the mistake so as to prevent the customer from incurring a fee
[Id. at 22, 24–25]. She also admits that Ms. Couch and Ms. Stuck informed her of a
complaint they received from a supervisor who works at First Link, defendant’s internal
call center, who noted that plaintiff had used unprofessional language and was
disrespectful [Docs. 40 p. 27; 40-2 p. 101].
Defendant maintains that plaintiff would occasionally tell her co-workers that she
was bored at work, would spend time at work browsing the internet, and would use her
work phone for personal matters, including one time for up to two hours [Doc. 40 at 25–
26]. Plaintiff denies these allegations [Id.]. Defendant also states that it received several
complaints regarding plaintiff’s attire at work, and plaintiff admits that she was counseled
once regarding this issue [Id. at 28–29]. Ms. Couch provided plaintiff with “hand-medown” clothing, which defendant states was in an effort to help plaintiff dress
appropriately for work [Id. at 29].
On February 7, 2013, plaintiff was counseled by Ms. Couch and Ms. Stuck
regarding her performance at work [Id. at 30]. Prior to this meeting, Ms. Stuck conferred
5
with the human resources department regarding the warning she was going to give
plaintiff [Id.].
In this documented verbal warning, Ms. Couch and Ms. Stuck told
plaintiff there were performance issues regarding her “quality of work, quantity of work,
on-the-job
conduct,
attendance
and
punctuality,
unprofessional
conduct,
judgment/decision-making, negligence/carelessness,” and her attire at work [Id.]. Ms.
Couch and Ms. Stuck then had plaintiff sign a written recitation of that warning, which
plaintiff claims she did not read [Id. at 31].
Defendant also submits that plaintiff was again counseled regarding her
performance issues in May 2013, which plaintiff denies [Id. at 33]. In this meeting, Ms.
Couch and Ms. Stuck allege that they spoke to plaintiff regarding her “poor customer
service, her lack of professionalism, and her failure to do the basics of her job,” among
other things [Id.]. In June 2013, prior to the date on which plaintiff was terminated, Ms.
Stuck again met with Ms. Couch and Kristi McCarter, the lead teller at the South Grove
branch, where Ms. McCarter informed Ms. Stuck about an alleged “plethora of continued
issues” with respect to plaintiff [Id. at 35]. Plaintiff disputes this, alleging that Ms. Stuck
received a “plethora” of alleged complaints only on the morning plaintiff was terminated
[Id.]. Ms. Stuck then sought input from other employees at the bank—who all allegedly
told her of similar performance issues with respect to plaintiff—and consulted with the
human resources department regarding whether plaintiff should be terminated [Id.].
Plaintiff disagrees with this alleged timeline, asserting that Ms. Stuck had “no designs” to
6
terminate plaintiff on the morning of her termination, and instead only met with other
employees regarding plaintiff’s performance that very day [Id.].
Ultimately, because of her “multitude of continued and ongoing performance
issues,” including allegedly over fifteen customer complaints, defendant decided to
terminate plaintiff in June 2013 [Id. at 34, 37]. Defendant maintains that plaintiff was
terminated on June 21, 2013, while plaintiff asserts she was terminated on June 19, 2013
[Id. at 36–37]. In terminating her, plaintiff states that defendant did not follow its
“progressive discipline policy” when it failed to counsel her for a second time, despite
defendant’s allegation that it counseled her in both February and May 2013 [Id. at 34].
Plaintiff maintains that both Ms. Stuck and Ms. Couch—plaintiff’s superiors and
the primary individuals involved in defendant’s decision to terminate plaintiff—were
aware of her brother-in-law’s disabilities before she was terminated [Doc. 40 pp. 10–11].
Plaintiff submits that the fact that she told Ms. Stuck in her initial job interview that she
had to care for her brother-in-law at lunch and Ms. Stuck’s handwritten notes from the
date plaintiff was terminated indicate that Ms. Stuck was aware of plaintiff’s brother-inlaw’s disabilities [Id.]. In these handwritten notes from the date of plaintiff’s termination,
Ms. Stuck wrote that plaintiff was “given special consideration for lunchbreaks due to
taking care of indigent relative. Refuses to reciprocate flexibility” [Id. at 11]. Defendant
denies that Ms. Stuck had any knowledge of plaintiff’s brother-in-law’s disabilities until
after the instant lawsuit was filed [Id. at 10].
7
Defendant also asserts that Ms. Couch was only became aware that plaintiff’s
brother-in-law was diabetic when the instant suit was commenced, and that she was never
aware of his other disabilities [Id. at 10, 41]. Plaintiff disputes this assertion, claiming
that she had discussed “the full panoply” of her brother-in-law’s disabilities with Ms.
Couch on “numerous occasions,” and that Ms. Couch had previously derogatorily
referred to her brother-in-law to a customer [Id.]. Plaintiff claims that, in this purported
incident, Ms. Couch commented to a customer that plaintiff could not assist him because
“she’s probably taking care of her retarded brother—or brother-in-law, whatever” [Id. at
11, 15]. Ms. Couch denies making this statement, as her husband is disabled, she has
three autistic nephews, and she finds the statement to be “unacceptable” [Id. at 15–16].
Nevertheless, plaintiff maintains that Ms. Couch “had a problem” with her using her
lunch break to care for her brother-in-law, but admits that Ms. Couch never told her she
could not leave for lunch, always allowed her to take lunch when she desired, and never
complained to plaintiff regarding her lunch schedule [Id. at 11–13]. Plaintiff also does
not dispute that plaintiff’s co-workers never heard Ms. Couch, or any other bank
employee, refer to plaintiff’s brother-in-law or her need to care for him in a derogatory or
negative manner [Id. at 17].
After her termination, plaintiff applied for unemployment benefits, which she
claims were initially denied [Id. at 38]. She alleges that, in a telephone call regarding her
benefits, an officer for the Tennessee Department of Labor read a statement from Ms.
Couch that stated plaintiff was terminated because she made it “difficult to take lunch due
8
to having to go home to take care of [her] blind, autistic and insulin-dependent brotherin-law” [Id.]. Defendant denies that Ms. Couch ever made this statement [Id. at 41].
Plaintiff admits she has never actually seen this statement that was purportedly read to
her [Id.]. Plaintiff’s unemployment benefits were eventually granted, and she received
them until December 16, 2013 [Id. at 39, 42].
Plaintiff later started working for
Vanderbilt Mortgage & Finance Company, where she continues to hold a full-time
position [Id. at 42]. Plaintiff filed the instant suit against defendant on June 9, 2014,
asserting that defendant discharged her because of her brother-in-law’s disability, in
violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.
(“ADA”) [Doc. 1 ¶¶ 20–28]. As a result of defendant’s discriminatory conduct, plaintiff
also has a claim against defendant for negligent infliction of emotional distress [Id. at 29–
33] [Doc. 1].
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.
9
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). The plaintiff must offer “concrete evidence from
which a reasonable juror could return a verdict in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). “[M]ere conclusory and unsupported allegations, rooted
in speculation, do not meet that burden.” Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th
Cir. 2003) (quotations and citation omitted). Summary judgment may not be defeated
“based on rumors, conclusory allegations, or subjective beliefs.” Hein v. All Am. Plywood
Co., 232 F.3d 482, 488 (6th Cir. 2000). 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, 477 U.S. at 248. 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. Hein, 232 F.3d at 488.
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.
10
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
Defendant filed a motion for summary judgment against plaintiff’s claims, in
which it argues that plaintiff cannot make out a prima facie case of association
discrimination because she cannot prove that she was known to be associated with a
disabled individual4 or that she was terminated under circumstances that raise a
reasonable inference that her brother-in-law’s disability was a determining factor in the
termination decision [Doc. 28 p. 2]. Even if plaintiff is able to establish a prima facie
case, defendant maintains that it can demonstrate a legitimate, non-discriminatory reason
for its decision to terminate plaintiff—her poor job performance—and that plaintiff
cannot prove that this was merely a pretext for association discrimination [Id.]. Finally,
defendant submits that plaintiff cannot make out a prima facie case of negligent infliction
of emotional distress [Id. at 3].
In response, plaintiff asserts that she has direct evidence of defendant’s
discrimination [Doc. 41 p. 7]. In the alternative, she also maintains that is able to
establish a prima facie case of discrimination, and that defendant’s legitimate, non4
For purposes of this memorandum, the Court assumes that plaintiff’s brother-in-law is a
qualified individual with a disability, as defined by the ADA.
11
discriminatory reason for terminating her is merely a pretext for its discrimination [Id. at
8–9]. Finally, plaintiff concedes that she cannot establish a prima facie case of negligent
infliction of emotional distress [Id. at 1 n.1].
A.
Disability Discrimination
The ADA prohibits employers from “excluding or otherwise denying equal jobs or
benefits to a qualified individual because of the known disability of an individual with
whom the qualified individual is known to have a relationship or association.” 42 U.S.C.
§ 12112(b)(4) (2009). Familial relationships are “associations” protected by the ADA.
Booker v. Delfasco, LLC, No. 2:13-CV-341, 2015 WL 999085, at *6 (E.D. Tenn. March
6, 2015).
Plaintiff’s claim of association discrimination arises under this “infrequently
litigated section” of the ADA, which the Sixth Circuit first addressed in a published
opinion in Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482, 487 (6th Cir. 2011).
In that opinion, the Sixth Circuit adopted the Seventh Circuit’s outline of three theories of
ADA association discrimination: (1) expense theory; (2) disability by association theory;
and (3) distraction theory. Id. (citing Larimer v. Int’l Bus. Machs. Corp., 370 F.3d 698,
700 (7th Cir. 2004)). In the expense theory, an employee claims the employer discharged
her because of the cost of insuring the associated disabled person under the employer’s
health plan. Williams v. Union Underwear Co., 614 F. App’x 249, 254 (6th Cir. 2015)
(citing Stansberry, 651 F.3d at 487). Under the disability by association theory, the
employer discriminates against the employee because the employer fears the employee
12
may contract the disability from the associated person or the employee is genetically
predisposed to develop the disability. Id. Finally, in the distraction theory, the employer
discriminates against the employee because the employee has been “somewhat inattentive
at work” because of the associated person’s disability.
Id.
Plaintiff relies on the
distraction theory of ADA association discrimination in her claim, asserting that she was
terminated from her position as a FSR because her employer believed her to be
inattentive at work due to her brother-in-law’s disability [Doc. 41 p. 7].
In ADA cases, “a plaintiff may establish unlawful discrimination by introducing
direct evidence of discrimination . . . or by introducing indirect evidence of
discrimination to shift the burden of production to the employer to articulate a legitimate,
nondiscriminatory reason for making the adverse employment decision.” Monette v.
Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996) (citations omitted), abrogated
on other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 315–16 (6th
Cir. 2012) (en banc).
“The direct evidence and circumstantial evidence paths are
mutually exclusive; a plaintiff need only prove one or the other, not both.” Kline v. Tenn.
Valley Auth., 128 F.3d 337, 348–49 (6th Cir. 1997). Thus, the Court must determine
whether plaintiff’s alleged evidence of association discrimination can be construed as
direct evidence, which would entitle plaintiff to proceed to a jury trial, or circumstantial
evidence, which would then invoke the McDonnell Douglas burden-shifting analysis.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Booker, 2015 WL
13
999085 at *6 (invoking this method of analysis in an ADA association discrimination
case).
1.
Direct Evidence
Plaintiff purports to have direct evidence that supports her distraction theory of
ADA association discrimination [Doc. 41 pp. 7–8]. “Direct evidence is evidence that
proves the existence of a fact without requiring any inferences.” Rowan v. Lockheed
Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004) (citations omitted). The
Sixth Circuit has described direct evidence as that which “requires the conclusion that
unlawful [discrimination] was a motivating factor in the employer’s action.” Abbott v.
Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2007) (emphasis in original). Yet “the
issue of what constitutes direct evidence is one ‘that has baffled the courts for some
time.’” Booker, 2015 WL 999085 at *7–*8 (quoting Wright v. Southland, 187 F.3d 1287,
1288 (11th Cir. 1999)) (choosing not to “continue grappling with an elusive standard,” as
the result would have been the same if the evidence were analyzed as being direct or
indirect). See also Speen v. Crown Clothing Corp., 102 F.3d 625, 636 (1st Cir. 1996)
(describing the line that separates direct and indirect evidence of discriminatory motive as
being “blurred rather than clearly drawn”).
Plaintiff points to four pieces of evidence that she claims are direct evidence that
plaintiff was terminated due to her association with her disabled brother-in-law. She first
asserts that Ms. Stuck’s handwritten notes from the day plaintiff was terminated describe
that plaintiff required “special consideration for lunchbreaks due to taking care of
14
indigent relative” and that she “refuses to reciprocate flexibility,” indicating she was
terminated due to her association with her brother-in-law [Doc. 41 p. 7]. Second, the
declarations of her former co-workers demonstrate that she “had become a pariah” in the
workplace, also purportedly tending to show the consequences of her association with her
brother-in-law [Id. at 7–8]. Third, plaintiff states that she did not violate any neutral
attendance or tardiness policy.
Finally, plaintiff asserts that she met defendant’s
legitimate and objective performance expectations, all allegedly demonstrating that there
were no other legitimate reasons for terminating her [Id. at 8].
Contrary to plaintiff’s assertions, however, the Court finds that these facts, even
when viewed in the light most favorable to plaintiff, do not establish direct evidence that
she was terminated from her job because of her association with her disabled brother-inlaw. First, Ms. Stuck’s notes reference an “indigent” relative, but do not reference a
disabled relative.5 Second, plaintiff’s co-workers were not primarily responsible for the
decision of whether to terminate her, and thus their feelings toward plaintiff do not
establish conclusively that she was terminated because of her association with her
brother-in-law. Finally, even if plaintiff did not violate any attendance policy and met all
performance expectations, this does not establish conclusively, without the need for
inferences, that she was terminated because of her association with her disabled brother-
5
“Disability,” as defined in the ADA, refers to “a physical or mental impairment that
substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102.
“Indigent,” as defined in the Merriam-Webster dictionary, means “lacking money” or “very
poor.” Indigent, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/indigent
(last visited Dec. 1, 2015).
15
in-law. Plaintiff has not set out direct evidence of discrimination, and, accordingly, the
Court must now determine whether plaintiff can demonstrate indirect evidence of
discrimination.
2.
Indirect Evidence
In the absence of direct evidence of discrimination, courts analyze ADA
discrimination claims following the burden shifting approach of McDonnell Douglas, 411
U.S. 792. Under the McDonnell Douglas burden-shifting framework, plaintiff must first
set out a prima facie case of discrimination. Williams, 614 F. App’x at 253; Stansberry,
651 F. 3d at 487. This burden “is not onerous.” Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). Indeed, it is “easily met.” Cline v. Catholic Diocese of
Toledo, 206 F.3d 651, 660 (6th Cir. 2000) (quoting Wrenn v. Gould, 808 F.2d 493, 500
(6th Cir. 1987)).
After plaintiff establishes a prima facie case of discrimination, the burden then
shifts to the employer “to articulate some legitimate, nondiscriminatory reason” for the
employment action. McDonnell Douglas, 411 U.S. at 802–04; Williams, 614 F. App’x at
253–54 (citing Talley v. Family Dollar Stores of Ohio, Inc., 542 F.2d 1099, 1105 (6th
Cir. 2008)). If defendant does so, then the burden returns to plaintiff to prove that the
stated reason is a pretext for association disability discrimination. Id. The Court’s role at
summary judgment is to “determine whether there is ‘sufficient evidence to create a
genuine dispute at each stage of the McDonnell Douglas inquiry.’” Rachells v. Cingular
16
Wireless Emp. Servs., LLC, 732 F.3d 652, 661 (6th Cir. 2013) (quoting Cline v. Catholic
Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000)).
a.
Prima Facie Case
In Stansberry, the Sixth Circuit adopted the Tenth Circuit’s formulation of how
plaintiffs can establish a prima facie case of association discrimination. Stansberry, 651
F.3d at 487 (citing Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1085 (10th Cir. 1997)).
Plaintiff must establish that: (1) she was qualified for the position; (2) she was subject to
an adverse employment action; (3) she was known to be associated with a disabled
individual; and (4) the adverse employment action occurred under circumstances that
raise a reasonable inference that the disability of her relative was a determining factor in
the decision. Id.
Defendant concedes that plaintiff can demonstrate the first two requirements of
this prima facie standard, but alleges that plaintiff cannot establish prongs three or four.
As for the third prong, that plaintiff was known to be associated with a disabled
individual, defendant submits that Ms. Stuck had no knowledge of plaintiff’s brother-inlaw’s disability prior to terminating her [Doc. 32 p. 24]. It maintains plaintiff cannot
point to any evidence that Ms. Stuck was aware of plaintiff’s brother-in-law’s condition,
beyond plaintiff’s own mere speculation that Ms. Couch told Ms. Stuck about it [Doc.
40-2 pp. 120–21]. Defendant directs the Court to plaintiff’s deposition, wherein, when
asked if she has any “actual knowledge” that Ms. Couch told Ms. Stuck about plaintiff’s
brother-in-law’s disabilities, plaintiff responded: “No” [Id.].
17
Plaintiff responds that Ms. Couch admits she knew plaintiff’s brother-in-law had
disabilities and that she was involved in the termination decision, thus establishing
defendant’s knowledge of her association with a disabled individual [Doc. 41 pp. 8–9].
Plaintiff also asserts that Ms. Couch commented to a customer that plaintiff was
“probably taking care of her retarded brother—or brother-in-law—whatever,” also
demonstrating knowledge [Doc. 40 p. 11]. Plaintiff submits that Ms. Stuck’s reference to
plaintiff’s “indigent relative” in her notes from the day plaintiff was terminated is also
sufficient to establish knowledge [Id.]. Finally, plaintiff alleges—relying on her own
deposition—that she told Ms. Stuck in her initial job interview that she had to go home at
lunch to take care of her brother-in-law, although plaintiff does not allege that she is
certain she told Ms. Stuck about her brother-in-law’s disability at that time [Doc. 40 p.
10].
Upon review of the parties’ filings and the record, while viewing the facts in the
light most favorable to plaintiff, the Court finds that plaintiff has presented sufficient
evidence to establish that defendant had knowledge of plaintiff’s brother-in-law’s
disability prior to her termination. By defendant’s own admission, Ms. Couch knew that
plaintiff’s brother-in-law was diabetic prior to her termination [Doc. 32 p. 6]. Even
assuming Ms. Couch did not know plaintiff’s brother-in-law was blind or autistic,
diabetes fits within the ADA’s definition of “disability.”
42 U.S.C. § 12102.
Additionally, plaintiff has submitted evidence that Ms. Couch commented to a customer
that plaintiff was “probably taking care of her retarded brother—or brother-in-law,
18
whatever” [Doc. 40 p. 11]. According to defendant’s submissions, Ms. Couch was also
involved in plaintiff’s performance counseling on February 7, 2013, and in May 2013,
and she was later involved in both the decision to terminate plaintiff and in the
termination itself [Doc. 32 pp. 16–18]. Throughout this process, Ms. Stuck sought input
from Ms. Couch and “other employees” as to plaintiff’s performance in the workplace.
Viewing this evidence in the light most favorable to plaintiff, it is possible that Ms.
Couch told Ms. Stuck about plaintiff’s brother-in-law’s disabilities, or that Ms. Couch’s
knowledge was enough to find defendant liable. Thus, plaintiff has presented sufficient
evidence that defendant had knowledge of plaintiff’s brother-in-law’s disability prior to
her termination. Anderson, 477 U.S. at 250.
Next, defendant argues that plaintiff cannot establish prong four of the prima facie
case, that she was terminated under circumstances that raise a reasonable inference that
her brother-in-law’s disability was a determining factor in the decision [Doc. 32 pp. 25–
29]. It asserts that the facts show that defendant terminated plaintiff for her poor work
performance, after her “continued performance issues” had been discussed with plaintiff
on “numerous” occasions [Id. at 25]. Plaintiff simply responds that she has presented
“ample evidence” that her association with her brother-in-law was a factor in the decision
to terminate her, and that Ms. Stuck’s notes “show this by themselves” [Doc. 41 p. 9].
Viewing the evidence in the light most favorable to plaintiff, plaintiff has put forth
sufficient evidence to reasonably infer that her brother-in-law’s disability was a
determining factor in the decision to terminate her. Ms. Stuck’s notes from the day
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plaintiff was terminated indicate that plaintiff had been “given special consideration” so
she could take care of her “indigent relative,” and that she refused to “reciprocate
flexibility,” presumptively because she needed to travel home each lunch break [Docs. 40
p. 11; 40-3 pp. 41–42]. This indicates that plaintiff’s relationship with her “indigent”
brother-in-law may have been a factor in the decision to fire her.
Ms. Stuck also sought input from Ms. Couch for the termination decision, who,
according to plaintiff, was aware of plaintiff’s brother-in-law’s disabilities and had
previously referred to him as “retarded” when explaining to a customer why plaintiff was
not available [Doc. 40 p. 11]. Ms. Couch denies making such a statement [Doc. 40-1 p.
27], but plaintiff has identified a customer’s deposition testimony regarding this
statement, which indicates that this is not a “mere conclusory and unsupported
allegation[.]” See Bell, 351 F.3d at 253. Moreover, it can be inferred from plaintiff’s
submissions that Ms. Couch expressed frustration with plaintiff’s relationship to her
brother-in-law to Ms. Stuck in the termination discussions.
Accordingly, plaintiff has met her burden of establishing a prima facie case of
discrimination.
The burden now shifts to defendant “to articulate some legitimate,
nondiscriminatory reason” for the employment action. McDonnell Douglas, 411 U.S. at
802–04; Williams, 614 F. App’x at 253–54 (citing Talley, 542 F.2d at 1105)).
b.
Legitimate, Non-Discriminatory Reason
As plaintiff has made a prima facie showing of discrimination, the burden shifts to
defendant to offer a legitimate, nondiscriminatory reason for plaintiff’s termination.
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McDonnell Douglas, 411 U.S. at 802–04; Williams, 614 F. App’x at 253–54 (citing
Talley, 542 F.2d at 1105)). Defendant’s burden is “one of production, not persuasion; it
‘can involve no credibility assessment.’” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 142 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).
Defendant submits that plaintiff’s poor job performance is a legitimate,
nondiscriminatory reason for her termination [Doc. 32 p. 30]. Defendant has produced
evidence that plaintiff failed to perform the duties of her job, including that she (1)
repeatedly failed to greet customers [Id. at 9–10]; (2) failed to follow through on
customer requests and even received customer complaints [Id. at 10–12]; (3) was
inattentive to her job [Id. at 12–14]; (4) treated customers and co-workers in an
unprofessional manner [Id. at 14]; and (5) dressed unprofessionally, in violation of
defendant’s dress code [Id. at 15].
As defendant has presented a legitimate,
nondiscriminatory reason for plaintiff’s termination, the burden now shifts back to
plaintiff to demonstrate that defendant’s proffered reason is pretextual. Williams, 614 F.
App’x at 256.
c.
Pretext
Plaintiff may demonstrate that defendant’s explanation is not credible by
“demonstrating that the proffered reason[] (1) had no basis in fact, (2) did not actually
motivate [defendant’s] action, or (3) [was] insufficient to motivate [defendant’s] action.”
Id. (citing Harris v. Metro. Gov’t of Nashville & Davidson Cnty., 594 F.3d 476, 486 (6th
Cir. 2010)). At the summary judgment stage, “a plaintiff need only produce enough
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evidence . . . to rebut, but not to disprove, the defendant’s proffered rationale.” Griffin v.
Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012) (citation and internal quotations omitted).
In doing so, however, plaintiff “must do more than simply impugn the legitimacy of the
asserted justification for her termination; in addition, the plaintiff ‘must produce
sufficient evidence from which the jury may reasonably reject the employer’s
explanation.’” Adams v. Tenn. Dep’t of Fin. & Admin., 179 F. App’x 266, 272–73 (6th
Cir. 2006) (citing Warfield v. Lebanon Corr. Inst., 181 F.3d 723, 730 (6th Cir. 1999)).
Plaintiff’s burden in demonstrating pretext “merges with [plaintiff’s] ultimate
burden of persuading the court that she has been the victim of intentional discrimination.”
Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 812 (6th Cir. 2011) (quoting Burdine,
450 U.S. at 256). Plaintiff must demonstrate that defendant’s proffered reason “was ‘so
unreasonable as to be disbelieved.’” Auble v. Babcock & Wilcox Tech. Servs. Y-12, LLC,
No. 3:13-CV-422-TAV-HBG, 2015 WL 6049825, at *12 (E.D. Tenn. Oct. 15, 2015)
(quoting Sybrandt v. Home Depot, 560 F.3d 553, 561 (6th Cir. 2009)).
To demonstrate pretext, plaintiff states that defendant’s rationale for terminating
her has “been in flux” since the morning she was terminated [Doc. 41 p. 9]. Plaintiff
notes that, even as far back as February 7, 2013, when plaintiff received a documented
verbal and written warning, “the reasons don’t [sic] add up” [Id.]. As proof, she cites to
plaintiff’s objections, in which she admits that during the February 2013 meeting, Ms.
Stuck and Ms. Couch “expressed their criticism of [p]laintiff’s clothes, not greeting
customers well enough, and an alleged loan application error” [Doc. 40 p. 31]. Plaintiff
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alleges she did not have a chance to read her written warning before signing it, and
disputes defendant’s contention that she was responsible for the loan application error
[Id. at 31–32]. Plaintiff also disputes that she was subject to any disciplinary action or
counseling in May 2013, and asserts that defendant’s progressive discipline policy
requires that all final warnings be in writing, which the alleged May 2013 meeting was
not [Id. at 33]. Plaintiff asserts that the fact defendant did not follow its progressive
discipline policy is illustrative of how defendant was “motivated by unlawful animus and
distaste for [p]laintiff and her brother-in-law” [Doc. 41 p. 9].
After reviewing plaintiff’s assertions, and considering the evidence in the light
most favorable to plaintiff, the Court finds that plaintiff creates a genuine dispute as to
pretext. Plaintiff has submitted sufficient evidence to create a question of fact as to
whether defendant’s proffered reason for her termination—her alleged poor work
performance—actually motivated defendant’s decision to terminate her.
Plaintiff has alleged that both Ms. Couch and Ms. Stuck—the primary individuals
involved in defendant’s decision to terminate plaintiff—were aware of her brother-inlaw’s disabilities [Doc. 40 pp. 10–11]. While defendant disputes this assertion, the Court
finds that plaintiff has presented sufficient evidence to demonstrate that this is a question
of fact best left for the jury. Ms. Stuck’s handwritten notes from the date on which
plaintiff was terminated, describing plaintiff’s “indigent relative” and how she was
“given special consideration,” also indicate that Ms. Couch and Ms. Stuck discussed
plaintiff’s brother-in-law on the date of her termination, and that plaintiff’s association
23
with him may have been a motivation for their decision to terminate her [Id.]. Finally,
plaintiff has raised a question of fact as to whether Ms. Couch commented to a customer
that plaintiff was “probably taking care of her retarded brother,” which could indicate that
her association with her brother-in-law was a motivation behind defendant’s decision to
terminate her [Id. at 11, 15]. The Court thus finds that plaintiff has “produce[d] enough
evidence . . . to rebut . . . defendant’s proffered rationale” for her termination. Griffin,
689 F.3d at 592.
As plaintiff has met her burden with respect to the second prong of the Williams
pretext analysis, the Court does not need to consider whether defendant’s reason for
terminating plaintiff had no basis in fact or whether it was insufficient to motivate a
termination. Having closely reviewed the record, the Court finds plaintiff has presented
sufficient evidence to create a genuine dispute as to whether defendant’s nondiscriminatory reason was pretextual.
Accordingly, the Court finds that summary
judgment on plaintiff’s disability discrimination claim is inappropriate.
B.
Negligent Infliction of Emotional Distress
Plaintiff’s complaint also includes a claim against defendant for negligent
infliction of emotional distress [Doc. 1 p. 4]. “The elements of a claim for negligent
infliction of emotional distress include the elements of a general negligence claim, which
are duty, breach of duty, injury or loss, causation in fact, and proximate causation.”
Rogers v. Louisville Land Co., 367 S.W.3d 196, 206 (Tenn. 2012) (footnote omitted). “In
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addition, the plaintiff must prove that the defendant’s conduct caused a serious or severe
emotional injury.” Id. (footnote omitted).
Defendant argues, with respect to any claim against it for negligent infliction of
emotional distress, that plaintiff cannot demonstrate duty, breach, or causation [Doc. 32
p. 34]. Plaintiff does not refute this argument, and in Plaintiff’s Response in Opposition
to Defendant’s Motion for Summary Judgment, plaintiff “consents to [d]efendant’s
motion as to her state law claim” of negligent infliction of emotional distress [Doc. 41 p.
1 n.1]. Upon review, the Court agrees with defendant. Thus, the Court will dismiss
plaintiff’s negligent infliction of emotional distress claim against defendant for this
reason.
IV.
Conclusion
For the reasons stated herein, defendant’s Motion for Summary Judgment [Doc.
28] is GRANTED IN PART and DENIED IN PART.
Plaintiff’s claim against
defendant for negligent infliction of emotional distress will be DISMISSED.
IT IS SO ORDERED.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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