Coleman v. ARC Automotive, Inc. (PLR1)

Filing 53

MEMORANDUM OPINION: because there is no evidence ARC interfered with Coleman's health care, her leaves of absence, or took any adverse action against her because of her race, ARC's motion for summary judgment [R. 20] is GRANTED, and this action is DISMISSED in its entirety. Signed by District Judge Pamela L Reeves on March 1, 2017. c/m (AYB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

TERRI Q. COLEMAN,
Plaintiff,
v.
ARC AUTOMOTIVE, INC.,
Defendant.

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No. 3:14-cv-00425
REEVES/SHIRLEY

MEMORANDUM OPINION

Plaintiff Terri Coleman brings this action against her former employer, ARC
Automotive, Inc. Coleman claims she was discriminated against because of her race in
violation of Title VII of the Civil Rights Act and the Tennessee Human Rights Act.
I. Statement of Facts
Coleman was hired as a general machine operator for ARC in May 1999, a position
she held until she went on an extended medical leave of absence on June 3, 2014. In
December 2010, Coleman underwent surgery for a hysterectomy. Coleman was granted
FMLA leave for her absences and her claim for short-term disability benefits was also
approved through MetLife. On February 8, 2011, six weeks after her surgery, Coleman
had a follow-up appointment with her surgeon, Dr. Copas. During the visit, Coleman told
Dr. Copas she was required to perform substantial, frequent overtime and she did not feel
that she could return to work. Dr. Copas responded he could not give her any more time

off work “or it would be fraud.” He released Coleman to return to work on February 14,
2011, without restrictions. Dr. Copas noted that Coleman’s abdominal incision was well
healed and she did not appear in acute distress. Coleman returned to work at ARC.
Coleman saw her primary care physician, Dr. Kirby on September 21, 2011, with
complaints of abdominal pain. Dr. Kirby ordered a CT scan but did not limit Coleman’s
activities or suggest she take time off work.
On November 30, 2011, Coleman saw Dr. Dean Turner, OB/GYN about her continued
pain. Coleman underwent exploratory surgery and removal of a cyst in January 2012. Coleman
was granted FMLA leave to cover absences related to her January 2012 surgery. She also applied
for and was granted short-term disability benefits. On February 6, 2012, Dr. Turner released
Coleman to return to work on February 14, 2012, without restrictions.
Coleman went to the emergency room complaining of pain in her abdomen on February
15, 2012, and the doctor wrote a note for her to remain out of work, but releasing her to return
without restrictions on February 20, 2012. Coleman returned to work on February 20, 2012, as
scheduled. ARC approved her absences through February 19, 2012, and her short-term disability
claim was also approved through February 19, 2012.
Coleman continued to experience abdominal pain and she returned to her primary care
physician, Dr. Kirby, on February 23, 2012. Dr. Kirby instructed her to remain out of work until
her next visit on March 13, 2012. Coleman informed Jackie Theg, ARC’s Human Resources
Manager, that she would be out of work until March 13, 2012.
Under ARC’s attendance policy, Coleman was required to provide medical documentation
to ARC to support a claim for FMLA leave. Coleman’s absences beginning on February 23, 2012,
were an extension of her prior FMLA leave, and ARC needed a doctor’s note supporting the
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additional time off.

When Coleman returned to work on February 20, 2012, her claim for short-

term disability benefits was closed. To reopen the claim after going back out on leave on February
23, 2012, Coleman was also required to provide updated medical information to MetLife.
As HR manager, Theg monitored all short-term disability claims for ARC. While she could
see the status of a claim, she was not privy to any medical information shared with MetLife and
was not privy to any notes made by the claims adjuster. Theg noted that Coleman’s claim
continued to show as “closed.” Concerned about Coleman not receiving short-term disability
payments, Theg followed up with Coleman to have her doctor provide information to MetLife so
her short-term disability claim could be reactivated. On March 13, 2012, Coleman faxed a letter
from Dr. Kirby that covered her absences beginning on February 23, 2012. Theg confirmed receipt
of the letter and told Coleman that her absences were now covered under FMLA.
Coleman returned to work on March 19, 2012, with a note from Dr. Kirby releasing her to
return to work without restrictions. Coleman was not disciplined and received no attendance
“occasions” for her absences.
Because Coleman’s short-term disability had still not been approved, Theg suggested that
she call MetLife. During a call with MetLife employees, Coleman questioned whether Theg had
access to her medical information, and was assured that Theg was not provided with any medical
information and had no access to Coleman’s medical information. On March 26, 2012, Dr. Kirby
faxed his medical certification to MetLife supporting continuation of Coleman’s short-term
disability benefits from February 23, 2012 through March 18, 2012. MetLife then approved
Coleman’s claim for benefits covering that time period.
In May 2012, Coleman complained to Gabe Bucca, Vice-President of Human Resources
for ARC, alleging Theg had contacted her doctors and pressured the doctors to return Coleman to

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work too soon. Bucca investigated and spoke with Theg, who denied contacting Coleman’s
doctors. Coleman also called the employee hotline to report her allegations. Bucca met with
Coleman, told her that Theg denied the allegations, and assured her it was not ARC policy to
contact an employee’s doctors. Bucca requested permission from Coleman to contact her doctors
to investigate the allegations, but Coleman refused, and Bucca considered the matter closed.
In the Fall of 2012, Coleman scheduled appointments with doctors at Vanderbilt Medical
Group because she was still experiencing pain in her abdomen. After review by several doctors,
it was determined that additional surgery was not recommended.
In January 2013, Coleman filed a claim for worker’s compensation benefits asserting that
she was injured due to being forced to return to work too soon following her surgeries in 2010 and
2012. Coleman’s claim was denied by the Tennessee Division of Worker’s Compensation.
On June 1, 2012, ARC’s time clock showed an extra punch on Coleman’s time card making
it appear she only worked from 11:50 a.m. to 3:02 p.m., when her regular shift was from 7:00 a.m.
to 3:00 p.m. As a result, Coleman was not paid for the 4.9 hours the time clock showed she had
not worked. Coleman questioned the missing 4.9 hours and it was corrected in her next pay check.
Coleman asserts she was improperly given an attendance point for taking what she thought
was a vacation day on June 26, 2013. Under the Collective Bargaining Agreement between ARC
and the union, employees are only allowed to take 10 single vacation days a year, all other days
must be taken in blocks of time of 2 or more consecutive days. Because Coleman had taken her
allotment of single vacation days for the year, she was given the day without pay and assessed a
single attendance occasion. This brought Coleman to 8 attendance occasions, which resulted in a
written warning. Coleman filed a grievance claiming her supervisor should have warned her she
was not eligible for the vacation day before she took it. The grievance was denied because

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company and union policy required employees to know where they stand with regard to their
vacation days. This self-responsibility rule had been applied consistently to other employees.
Coleman did not challenge the matter further.
Coleman next alleges Brubeck monitored her more closely, walking by her machine more
often, but he never criticized her or disciplined her in any fashion.
Coleman requested and was granted FMLA leave beginning June 3, 2014, due to continued
abdominal pain. She also requested and was granted short-term disability benefits beginning June
3, 2014. Coleman did not return to work at ARC and exhausted her 12 weeks of FMLA leave and
26 weeks of short-term disability leave. Her employment with ARC was terminated.

Coleman alleges Jackie Theg interfered with her medical care by forcing her doctors
to release her back to work too soon following surgery in December 2010 and in January
2012. Coleman asserts that Theg did so because Coleman is black. Coleman also alleges
she should have been allowed to take FMLA leave and short-term disability leave
consecutively instead of concurrently. Coleman testified neither Theg nor anyone else at
ARC ever made any comments to her that she deems racially derogatory.
In support of her claims, Coleman submits the affidavit of Paula Ousley, a white
female General Machine Operator at ARC. Ousley stated she took a twelve and half week
short-term disability leave after surgery, but was not required to fill out FMLA paperwork
to obtain short-term disability leave; instead, she filled out the FMLA papers voluntarily.
Ousley further states that she does not know of any other employees, with the exception of
Coleman, who were required to get FMLA papers filled out to cover short-term disability

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leave, or were required to fax or mail any follow-up doctor appointment notes during shortterm disability leave. Coleman submits this disparate treatment is based on race.
II. Motion to Strike
ARC moves to strike Ousley’s affidavit because it is not based on personal
knowledge and contains inadmissible hearsay. In order to be considered by the court on a
motion for summary judgment, an affidavit must satisfy three requirements: (1) it must be
made on personal knowledge; (2) it must set out facts that would be admissible in evidence;
and (3) it must show that the affiant is competent to testify on the matters stated.
Fed.R.Civ.P. 56(c)(4). Additionally, the party offering the affidavit must support the
assertions made therein by citing to particular parts of materials in the record. Fed.R.Civ.P.
56(c)(1)(A).
Ousley is a General Machine Operator who does not work in Human Resources and
has no responsibility for the processing or monitoring of any employee’s leave of absence.
There are no facts set forth in her affidavit to support her opinions. To the extent that
Ousley is relying on what other ARC employees have said, such information would be
inadmissible hearsay under Federal Rule of Evidence 801(c). Moreover, Ousley’s affidavit
contains no information that she has any personal knowledge of Coleman’s situation, but
suggests that it was similar to her own. Because Ousley’s affidavit is not based on personal
knowledge and contains no facts to support her opinions or citations to materials in the
record, the court will not consider Ousley’s statements in deciding the pending motion for
summary judgment.

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III. Summary Judgment Standard
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.
Cattrett, 477 U.S. 317, 330 n. 2 (1986); Moore v. Philip Morris Co., Inc., 8 F.3d 335, 339
(6th Cir. 1993). All facts and inferences to be drawn therefrom must be viewed in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Burchett v. Keifer, 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. Celotex,
477 U.S. at 317. To establish a genuine issue as to the existence of a particular element,
the nonmoving party must point to evidence in the record upon which a reasonable finder
of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The genuine issue must also be material; that is, it must involve facts that might affect the
outcome of the suit under the governing law. Id.
The court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper question
for the factfinder. Id. 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 fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.
1989). Thus, “the inquiry performed is the threshold inquiry of determining whether there
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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.
IV. Analysis
A. THRA Claim
ARC argues Coleman’s claim brought under the THRA is time barred. Coleman has not
responded to this argument and her failure to respond is deemed to be a waiver of any opposition
to the relief sought. E.D. Tenn. LR 7.2. The statute of limitations for a THRA claim is one year
and the limitations period is not tolled by the filing of an EEOC or THRA charge. Coleman filed
her complaint on September 15, 2014, but the last discriminatory act alleged was related to her
return from surgery in February 2012. Therefore, her claim for violation of the THRA is untimely
and will be dismissed.
B. Racial Discrimination
To establish a prima facie case of racial discrimination, Coleman must show (1) she is a
member of a protected class, (2) she suffered an adverse employment action, (3) she was qualified
for the position, and (4) a similarly-situated employee outside the protected class was treated more
favorably than plaintiff. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 363 (6th Cir. 2010). ARC
argues Coleman suffered no adverse employment actions during her employment.
To establish that she was subjected to an adverse employment action, Coleman must show
a materially adverse change in the terms or conditions of her employment. Broska v. Henderson,
70 Fed. Appx. 262, 266 (6th Cir. 2003). Courts consider termination of employment, a demotion,
decreased wage or salary, less distinguished title, material loss of benefits, or diminished
responsibilities as adverse employment actions. See Kocsis v. Multi-Care Mgt. Inc., 97 F.3d 876,
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886 (6th Cir. 1996). A change in employment conditions must be more disruptive than a mere
inconvenience or an alteration of job responsibilities for the action to constitute an adverse
employment action. Id.
Coleman does not allege that she has suffered a demotion, termination, any loss of pay or
benefits, nor a change in the terms and conditions of her employment. Rather, she asserts she was
not permitted to stay out on short-term disability leave following her December 2010 surgery and
January 2012 surgery because Theg pressured her doctors to release her to return to work before
she had time to heal. However, other than Coleman’s unsubstantiated assertions, there is no proof
in the record her doctors had any contact with Theg or anyone at ARC to release her to return to
work earlier than was medically appropriate. Dr. Copas’ notes provide that Coleman was released
to return to work without restrictions on February 14, 2011, because she had sufficiently healed
from surgery. Dr. Copas held Coleman out of work for nearly seven weeks. Dr. Callahan of the
Vanderbilt Medical Group stated the standard time for recovery from a hysterectomy was six to
eight weeks. Dr. Copas testified that he released Coleman to return to work on February 14, 2011
because in his medical opinion, she was physically capable of returning to work.
With regard to the January 2012 surgery, Coleman claims Dr. Turner’s nurse, Ashley called
her and told her that Theg had pressured Dr. Turner to return her to work on February 14, 2012.
Ashley denied these allegations in writing to plaintiff on December 27, 2012. As reflected in Dr.
Turner’s February 14, 2012 notes, Coleman was doing well and had no complaints. Dr. Turner
released her to resume her normal activities. Coleman requested additional time to respond to the
motion for summary judgment so she could depose her doctors, but she failed to depose Dr. Turner
or his nurse, Ashley. Coleman’s allegations regarding her conversation with Ashley in February

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2012, are thus inadmissible hearsay, insufficient as a matter of law to defeat ARC’s motion for
summary judgment.
Dr. Kirby, Coleman’s primary care physician, also testified that no one at ARC contacted
him or pressured him to return Coleman to work. He stated that when he released her to return to
work on March 19, 2012, he did so because in his medical opinion, Coleman was physically
capable of returning to work. He did not take her off work again until over two years later on June
2, 2014.
Coleman was approved for FMLA leave and short-term disability for both surgeries for as
long as her doctors certified that she needed to be out of work. Moreover, Coleman requested and
was granted additional leave related to her same condition on June 3, 2014. Coleman has not been
denied FMLA leave or short-term disability benefits or had any action taken against her for use of
such leave. Based on the record, the court cannot find that Coleman has suffered an adverse
employment action as a result of taking FMLA or short-term disability leave.
Next, the court will consider several incidents Coleman alleges were adverse employment
actions by ARC. First, with regard to the time card issue on June 1, 2013, when Coleman alleges
she was not paid for 4.9 hours she worked, the record shows the matter was investigated and she
was paid the 4.9 hours in the next paycheck. The attendance occasion was also removed. The
court finds this incident does not constitute an adverse employment action or evidence of
discriminatory behavior.
Coleman alleges she was given a written warning for accumulating eight attendance
occasions. Coleman does not dispute that she did indeed have eight attendance occasions, or that
under ARC and union policy, employees have the responsibility to keep track of their vacation
eligibility. Under these circumstances, the court cannot find these attendance write-ups constitute

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an adverse employment action. See Handshoe v. Mercy Med. Ctr., 34 Fed. Appx. 441, 447 (6th
Cir. 2002) (finding a warning letter about use of break time did not amount to an adverse
employment action).
Coleman claims she was subjected to increased supervision because her supervisor would
pass by her machine more often. However, she admits he never criticized her work, never
disciplined her, and did not interfere with her work. Coleman also alleges that Lisa Hall, a coworker was asked to spy on her and report to her supervisor, Brubeck. Coleman spoke with
Charles Walker, her group leader, about the situation, it was resolved and not brought up again.
Coleman admits she was never disciplined for anything Hall may have reported to Brubeck. These
incidents do not, in the court’s opinion, constitute adverse employment actions. See Broska, 70
Fed. Appx. at 267 (finding that an increase in supervision is a de minimis action that is not
materially adverse).
C. FMLA Leave/Short-Term Disability Leave
Coleman’s final argument is that she was forced to take short-term disability leave
concurrently with FMLA leave, which if taken consecutively, would have afforded her more time
to heal from her surgeries. The court finds this argument without merit.
First, Theg testified ARC’s policy is to run FMLA leave and short-term disability leave
concurrently. Coleman points to no provisions in the Collective Bargaining Agreement or any
ARC policy that FMLA and short-term disability leave run consecutively. To the contrary, FMLA
regulations specifically provide that FMLA leave will run during any leave based on the
employee’s own serious health conditions, even if the employee is receiving short-term disability
benefits. 29 C.F.R. § 825.207(d).

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Second, Coleman cannot assert a claim for violation of the FMLA. The record
shows she received all FMLA leave to which she was entitled, and ARC never disciplined
her for any time missed related to her two surgeries. Even accepting Coleman’s position
that she should have been able to take FMLA and short-term disability leave consecutively,
her leave would have expired in March 2015. Dr. Kirby testified that Coleman is still
unable to return to work, so Coleman has suffered no adverse employment action because
she would have been terminated when her leave expired in March 2015. Plaintiff was on
leave for nearly 21 months, well beyond the combined 38 weeks of FMLA and short-term
disability leave had they run consecutively.
V. Conclusion
Because there is no evidence ARC interfered with Coleman’s health care, her leaves
of absence, or took any adverse action against her because of her race, ARC’s motion for
summary judgment [R. 20] is GRANTED, and this action is DISMISSED in its entirety.

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UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT
A S S
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