Underwood v. Dynamic Security, Inc. et al (TWP1)
Filing
74
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING MOTION TO STRIKE JURY DEMAND. It is ORDERED that the defendant's motion for summary judgment (ECF No. 61) is GRANT ED IN PART AND DENIED IN PART. The plaintiff's claim discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-401, et seq. based on a hostile work env ironment is DISMISSED WITH PREJUDICE. The motion is DENIED in all other respects. It is further ORDERED that the defendant's motion to strike the jury demand (ECF No. 66) is GRANTED. The case will proceed to trial before the Court sitting withou t a jury. It is further ORDERED that the parties will appear via teleconference on October 14, 2020 at 3:00 p.m. for a status conference to establish a trial date and other case management deadlines. Signed by District Judge David M Lawson on September 30, 2020. (AYB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
CARLA UNDERWOOD,
Plaintiff,
Case Number 18-00017
Honorable David M. Lawson
v.
DYNAMIC SECURITY, INC.,
Defendant.
/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING MOTION TO STRIKE JURY DEMAND
After the defendant fired plaintiff Carla Underwood from her job as a security officer, she
brought this lawsuit for sexual discrimination and retaliation. The second amended complaint,
which is the current operative pleading, states claims for hostile work environment and retaliation
under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. and the Tennessee Human
Rights Act, Tenn. Code Ann. § 4-21-401, et seq. In response to the defendant’s pending motion
for summary judgment, the plaintiff has abandoned her hostile work environment claim, which
will be dismissed. Fact issues preclude summary judgment on the remaining retaliation claim.
The defendant also moves to strike the jury demand, arguing that the plaintiff waived her right to
a jury trial in the employment documents she signed. Underwood argues that the waiver was not
knowingly made, but the factors the Court must consider when making that determination favor
enforcing the waiver. The summary judgment motion will be granted in part, and the motion to
strike the jury demand will be granted. The case will proceed to trial before the Court without a
jury on the harassment claim.
I. Facts and Proceedings
Carla Underwood was employed by Dynamic Security Inc. as a contract security guard.
She was assigned to duties at the campuses of Pellissippi State Community College (PSCC). She
alleges that she was sexually harassed by her supervisor at one of the campuses, J.T. Gibson. She
had difficulty lodging a complaint about Gibson’s conduct but eventually made her grievance
known to the corporate human resource director. When it came time to reassign Underwood to
another location, as the campus where she worked would close for the summer, she could not agree
with Dynamic on a reassignment site. Dynamic terminated her employment. It says that the
termination was due to Underwood’s refusal to accept a new work assignment. Underwood says
that her immediate supervisor was upset with her complaint to corporate headquarters, and that
prompted the termination.
Dynamic hired Underwood as a security officer in January 2016. Dynamic initially
assigned Underwood to PSCC’s Hardin Valley Road campus in Knoxville, Tennessee. On
February 22, 2016, Dynamic transferred her to PSCC’s smaller campus in Blount County. When
the Blount County campus closed during the summer of 2016, Underwood was reassigned to the
Hardin Valley campus until the Blount County campus reopened in the fall.
Pamela Pauley became the district manager in Dynamic’s Knoxville office on October 1,
2016. She was Underwood’s direct supervisor throughout her employment. Pauley reported to
Dynamic’s regional manager, Ian Conroy, from September 2016 forward.
Dynamic’s organizational structure also included the position of site supervisor, who
generally was responsible for scheduling shifts. The site supervisor had no authority to hire,
discipline, suspend, transfer, or fire security officers.
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On July 27, 2016, while inside the security office at the Hardin Valley campus, Angela
Garrett, Underwood’s site supervisor and roommate at the time, approached Underwood from
behind, patted her on the shoulder, moved around front and began striking Underwood on her
arms, ribs, and breasts, groping them. Underwood, who identifies as a lesbian, pushed Garrett
away; the exchange lasted “a few minutes.” PSCC security officers were present during the
altercation, investigated the incident, and reported it to Dynamic.
Ian Conroy, who was a district manager for Dynamic at the time, issued Underwood a
disciplinary report the next day for fighting with another employee and involving the client (PSCC)
rather than reporting the incident directly to Dynamic. Conroy also issued Garret a disciplinary
report for fighting and reassigned her to another post at PSCC’s request. Underwood and Garrett
never worked together again.
Underwood alleges that Dynamic site supervisor J.T. Gibson sexually harassed her for
several months. In January 2016 — before Underwood was assigned to the Blount County campus
— J.T. Gibson, who was a fellow security officer at the time, tried to grab Underwood between
her legs while they were in a patrol car. Underwood did not welcome Gibson’s advance; she
demanded that he stop the car and she got out.
Underwood transferred to the Blount County campus in February 2016. Gibson was
promoted to Underwood’s site supervisor around June 2016, but he worked at the Hardin Valley
campus. Despite the previous assault, Underwood testified that she got along with Gibson for
several months until he began sexually harassing her again in August 2016. Underwood testified
that when she called the Hardin Valley campus from Blount County to clock in, she spoke with
Gibson two or three times, during which he asked for sexual favors during work hours. He
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propositioned her for sexual intercourse and oral sex. Gibson also sent Underwood the following
text messages throughout her employment:
September 26, 2016: Gibson requested that Underwood send him what she thought
must be inappropriate pictures that she did not plan on sending. See Underwood
dep., ECF No. 61-1, PageID.305; see also Gibson Text Messages dated September
26, 2016, ECF No. 61-1, PageID.413-14 (“Ok try to send them to my phone my
wifi is messed up . . . you send them lol . . . hey you turd . . . send me those to that
number i [sic] texted you from”). She ignored Gibson, told him to stop, and “[f]or
a short period of time, he would stop.” Id. at PageID.306-07.
October 3 and 5, 2016: Gibson texts Underwood, “Let me eat it lol,” which
Underwood interprets as a reference to oral sex. Gibson Text Messages dated
sometime before October 3, 2016, ECF No. 61-1, PageID.419; Underwood Dep.,
ECF No. 61-1, PageID.313. He also texted, “I watched 50 shades of gray yesterday
after work.” Gibson Text Messages dated October 5, 2016, ECF No. 61-1,
PageID.419.
Sometime after February 2017 (Date Redacted): Gibson texts Underwood, “Can
I come over when I get off at 1030 please.” Gibson Text Messages, date redacted,
ECF No. 61-1, PageID.417. Underwood responds, “Make them pay me,” in
reference to a vacation pay dispute she was having with Dynamic at the time. Ibid.;
Underwood Dep., ECF No. 61-1, PageID.310. Gibson responds, “Can I come by
tonight please I have been so good and waiting so long . . . please . . . please.” Ibid.
Around May 18, 2017 (Exact Date Unclear): Gibson and Underwood have the
following exchange:
Gibson: you ever going to new me haha
Underwood: New you ??
Gibson: Meet lol
Underwood: For ??
Gibson: U Know
Underwood: You know I’m a lesbian
Gibson: So am I lol. Gibson Test Messages dated around May 18, 2016, ECF No.
61-1, PageID.420.
May 24, 2017: Underwood believes Gibson is requesting inappropriate pictures
when he texts her, “Send them please I wanna se2 it all . . . you sending thrm [sic].
. . . Send me those pics now please.” Gibson Text Messages dated May 24, 2017,
ECF No. 61-1, PageID.415.
In May 2017, Underwood learned that PSCC was again closing its Blount County campus
for the summer when she unexpectedly noticed that she was not on the shift schedule, despite being
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told that she would be working all summer and “had nothing to worry about.” She showed up for
work at Blount County, but a PSCC faculty member told her she was not needed. Confused,
Underwood called site supervisor Gibson and he started calling her names, like “stupid” and
“b*tch,” and scolded her for showing up because she was “not supposed to be there.”
Dynamic’s procedure for reporting non-payroll issues directed employees to contact their
respective district managers; for Underwood, that was Pamela Pauley. Underwood testified that
she was never given Pauley’s specific contact information; rather, she was directed to contact
Dynamic’s general office to discuss issues.
Underwood testified that she tried to contact Pauley several times earlier about Gibson’s
harassment but could not reach her. Underwood left four or five voice mail messages requesting
that Pauley return her calls. Most of her calls were not returned. She did not connect directly with
Pauley until sometime between February and May 2017. Underwood allegedly told Pauley that
she “was having issues with [Gibson] sexually harassing [her],” to which Pauley responded, “We’ll
look into it.” Underwood Dep., ECF No. 63-1, PageID.291. Pauley apparently did not investigate
or ask for any details about the matter.
Underwood again spoke with Pauley over the phone in May 2017 to complain that Gibson
was calling her names that day. Underwood testified that she did not believe that Gibson’s namecalling, which stemmed from her reporting to the wrong location for work, constituted sexual
harassment. But she told Pauley that the sexual harassment “was still going on,” to which Pauley
explained that Gibson “was going through a lot of issues at home.” Id. at PageID.294.
Underwood also alleges that she called Sherry Spires, the human resources coordinator in
Dynamic’s Alabama headquarters, five or six times between May 25 and 26, 2017, to discuss
Gibson’s conduct because she “felt like the office . . . in Knoxville had not handled the issues.”
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Id. at PageID.288, 294-97. Per Dynamic’s written policies, employees are supposed to contact the
headquarters to report harassment claims. Underwood had difficulty reaching Spires because the
phone number for Dynamic’s headquarters that Underwood was provided with re-routed to
Dynamic’s “staffing division.” Underwood left a voicemail message with Spires requesting that
Spires return her call; she also asked someone in the office to request that Spires call her back.
Spires never returned Underwood’s calls; Underwood says that she was unable to speak to “anyone
about anything” in Dynamic’s human resources department. Spires maintains that she never
received any complaints from anyone regarding J.T. Gibson. However, Spires acknowledged that
she “received a voicemail from Ms. Underwood that stated that she needed to talk to [Spires] about
a situation because her local branch was not handling it right.” After contacting district manager
Pauley, Spires says she thought that Underwood called about “a scheduling issue, and [that
Underwood’s local branch was] handling it.”
After Underwood discovered that she was not supposed to work at Blount County over the
summer, she called Pauley on May 18, 2017, to discuss the scheduling issue and Gibson’s recent
outburst, but Pauley did not answer. Pauley returned Underwood’s call that day to tell her that
Dynamic had other employment options for Underwood and requested that Underwood meet with
her to discuss them. In early June 2017, Underwood met with Pauley, regional manager Conroy,
and Scott Branch (Dynamic’s management representative in Knoxville). Feeling uneasy about the
meeting, Underwood recorded it on her phone without anyone’s knowledge. A transcript of the
recording is part of this record. Meeting Tr., ECF No. 61-1, PageID.423-455.
At the meeting, Underwood was offered one of four available positions for the summer of
2017 until the Blount County campus reopened. Unlike 2016, when Underwood transferred to the
Hardin Valley campus for the summer, there were no available posts at PSCC.
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Underwood declined the four opportunities, believing that none “would have been a fit”
for her because she was not comfortable accepting an assignment where she would be assigned
alone or partnered with a male officer overnight. Additionally, the positions entailed a much
longer commute, extending her previous thirty-minute commute to over an hour. Underwood
refused to sign a “Post Awareness/Acknowledgement” form at the meeting, memorializing the
other posts available until her reassignment to Blount County. Regional manager Conroy then
decided to terminate Underwood’s employment effective June 7, 2017, allegedly for refusing to
accept any of the assignments offered.
What was supposed to be a 15-minute meeting lasted an hour. During that meeting,
Underwood testified, she was frightened by Conroy’s demeanor: when she refused to sign the
acknowledgment, he screamed at her while standing in the doorway and touched his holstered
handgun a few times. Conroy and Branch also told Pauley that Underwood “called corporate a
number of times.” Pauley asked Underwood why she “was calling corporate.” Underwood
testified that she did not tell them about Gibson’s alleged harassment at that time because she was
afraid about losing her job at the meeting. She said her fear began to “escalate” as the meeting
went on. She mentioned Gibson briefly during the meeting, focusing mostly on his May 2017
admonition about her showing up for work at Blount County. The exchanges went like this:
Q (Conroy): And why would you go so far as to call corporate?
A (Underwood): Because, first of all, last Tuesday J.T. [Gibson] did what he did.
And the only question I have for [Gibson] was there was a staff member parked
two spaces over [sic]. She (unclear who) comes out of the building with, hey,
there’s Pellissippi P.D. inside. So I thought, what clicked in my head was if
Pellissippi P.D. is there, I don’t need to be here. The only question I had for him is
not regarding the post.
Q: You called corporate before then.
A: Yeah, because my pay was messed up back in February. I called several times,
yes.
Q: That’s a [Pauley] issue, that’s not a corporate issue. Once again, why did you
call corporate?
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A: That’s it. That’s—you know, last Tuesday whatever he has going is, you know,
he had no right doing what he did.
Q: And I talked to J.T. That was to be brought directly to me or Scott . . .
A: I have not sent anything to corporate. I have not spoken to corporate at all.
Q: You called corporate on Thursday, May 25th [2017] and then turned around and
called them back on May 26th.
A: Yeah, I’ve called them. I have not spoken to anyone directly at all. I have not
spoken to anyone regarding anything.
Q: Okay. And you understand that all of the issues come to this office?
A: Yeah.
Q: And you have to give us the time to be able to investigate the issues and be able
to respond to that issue. You don’t just—
A: I called here. I talked to you about it.
Q: Yeah. And then you turned around and you called corporate, what, five minutes
later?
Meeting Tr., ECF No. 61-1, PageID.427-28.
Conroy accused Underwood of having an ulterior motive at the meeting, apparently
believing that she “wanted to provoke a reaction for us to say something that could lead to
litigation.” Conroy Dep., ECF No. 63-6, PageID.804. Conroy never explained what exactly he
thought Underwood was trying to bait him into saying, but he maintains that he was unaware of
Gibson’s alleged sexual harassment at the time. And Pauley denies that the plaintiff ever told her
about the harassment. Conroy claims he “became agitated, not with the plaintiff,” but “with the
situation[] because[,] during the time that interview took place, [Dynamic] had a lot of business
going on.” Conroy Dep., ECF No. 61-3, PageID.490.
The parties disagree about whether Dynamic maintains a policy of terminating employees
who fail to accept a temporary position. Section 17 of the Security Officer’s Handbook includes
language prescribing progressive discipline. “Refusal to accept [a] reasonable assignment” may
subject an employee to “probation,” “suspension,” or “termination.” Id. at PageID.397.
Conroy testified that there was no “specific length of time that a guard could not be
assigned to a post and remain employed before Dynamic would terminate the employment;” rather,
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this determination was conducted on a “case-by-case” basis. However, Pauley made clear that
Underwood’s refusal of a new assignment for the summer was not grounds for termination. Pauley
testified:
Q: So if a Dynamic guard—if a post is eliminated either temporarily or
permanently, how long will Dynamic keep that employee on payroll . . . without
them being assigned to a new post before letting them go?
A: Just like we explained to [Underwood] before she left the office that day,
because of it being a summer shutdown, we would have kept her on a fill-in status
until her position opened up at Blount.
Q: So she didn’t have to take any of those positions that you were holding for her?
A: No, but the option was there for her to.
Q: So it was optional?
A: Yes.
Q: And she ultimately decided that she did not want to take one of those positions;
correct?
A: That’s correct.
....
Q: . . . [I]f I understood your testimony earlier, it was okay for [Underwood] to
leave and not take those assignments and come back and work Pellissippi Blount
when they reopened?
A: When it reopened, yes.
Pauley Dep., ECF No. 63-5, PageID.758, 773-74. And Garrett testified that after her altercation
with Underwood, Dynamic did not have a placement for her, so she “was out of work for about
three months,” but maintained her employment status with the company. Garrett Dep., ECF No.
63-2, PageID.662-64.
After filing a charge of discrimination with the Equal Employment Opportunity
Commission, Underwood commenced this action against Dynamic and Ian Conroy, asserting
federal and Tennessee claims for hostile work environment, retaliation, and false imprisonment.
Underwood filed an amended complaint, to which Dynamic responded with a motion to dismiss
the retaliation claim to the extent that it was based on her alleged complaint about Garrett, arguing
that sexual harassment on the basis of sexual orientation does not constitute protected activity.
Judge Thomas W. Phillips, previously assigned to this case, granted the defendant’s motion as to
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any part of Underwood’s retaliation claim concerning her alleged complaint of harassment based
on her sexual orientation. That order was entered before the Supreme Court decided Bostock v.
Clayton County, Georgia, --- U.S. ---, 140 S. Ct. 1731 (2020) (holding that Title VII applies to
claims of discrimination based on sexual orientation)). The Court left open the question of whether
Underwood stated a claim for retaliation based on Gibson’s conduct.
On April 12, 2019, the plaintiff filed a second amended complaint, which deleted the false
imprisonment claim and eliminated Conroy as a defendant. That pleading asserted two claims
against Dynamic Security, Inc.: hostile work environment under Title VII of the Civil Rights Act,
42 U.S.C. § 2000e, et seq. and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-401, et
seq. (Count 1) and retaliation under Title VII and the Tennessee Human Rights Act (Count 2).
Dynamic filed the present motion for summary judgment. In response, the plaintiff
withdrew her hostile work environment claim. The only remaining claim is based on retaliation
for Underwood’s complaints about the sexual harassment visited upon her by J.T. Gibson.
Dynamic also filed a motion to strike the plaintiff’s jury trial demand. It contends that
Underwood waived her right to a jury trial when she signed employment papers during the hiring
process.
II. Motion for Summary Judgment
In its motion, Dynamic attacks all aspects of Underwood’s retaliation claim. It argues that
Underwood did not engage in protected conduct that Dynamic knew about, it did not take adverse
action against her, there is no causal link between any protected conduct, and it had a valid reason
for firing her.
Summary judgment is appropriate “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.
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56(a). When reviewing the motion record, “[t]he court must view the evidence and draw all
reasonable inferences in favor of the non-moving party, and determine ‘whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.’” Alexander v. CareSource, 576 F.3d 551, 557-58 (6th
Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
Title VII prohibits an employer from retaliating against an employee who has opposed an
“unlawful employment practice.” 42 U.S.C. § 2000e–3(a). “When an employee’s supervisor
retaliates against the employee, the employer is vicariously liable for the supervisor’s unlawful
actions.” Mys v. Mich. Dep’t of State Police, 886 F.3d 591, 600 (6th Cir. 2018) (quoting Faragher
v. City of Boca Raton, 524 U.S. 775, 780 (1998)). Tennessee courts interpret the Tennessee Human
Rights Act “similarly, if not identically, to Title VII.” Ferguson v. Middle Tenn. St. Univ., 451
S.W.3d 375, 380 (Tenn. 2014); Arendale v City of Memphis, 519 F.3d 587, 606 (6th Cir. 2008) (“a
retaliation claim under both statutes follows the same analysis”).
A retaliation claim can be proved either by direct evidence of retaliation or by offering
circumstantial evidence that permits an inference that an employer unlawfully retaliated illegally
against an employee. Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (quoting
Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 538 (6th Cir. 2008)). Underwood relies
entirely on her circumstantial case, thereby invoking “the burden-shifting framework” of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later clarified by Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). Hedrick v. W. Reserve Care Sys., 355 F.3d
444, 453 (6th Cir. 2004). Under that framework, Underwood must first demonstrate a prima facie
case. Ibid. If she succeeds, the burden of production of evidence shifts to Dynamic, who must
articulate a legitimate, non-discriminatory reason for its actions. If the defendant satisfies its
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burden of production, the burden shifts back to Underwood to demonstrate that Dynamic’s
proffered reason was not the true reason for the employment decision. Ibid. (quoting Dixon v.
Gonzales, 481 F.3d 324, 333 (6th Cir. 2007)). “Although the burden of production shifts between
the parties, the plaintiff bears the burden of persuasion through the process.” Ibid.
A. Prima Facie Case
The elements of a prima facie Title VII retaliation claim are that: (1) an employee engaged
in activity protected by Title VII; (2) the employer had knowledge of the protected activity; (3) the
employer took an adverse employment action against her; and (4) there is a causal link between
the protected activity and the adverse employment action. Id. at 599-600 (6th Cir. 2018); see also
White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 796 (6th Cir. 2004), aff'd 548 U.S. 53
(2006) (citing Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir. 1984)).
1. Protected Activity
There is no question that Underwood engaged in protected activity when she complained
at least twice in mid-2017 to district manager Pauley about site supervisor Gibson’s sexual
harassment.
Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 469 (6th Cir. 2012)
(“[C]omplaining about allegedly unlawful conduct to company management is classic opposition
activity.”). Dynamic takes issue with Underwood’s complaints to Spires, because Underwood
never actually reached her. And it contends that Conroy, the actual decisionmaker here, was not
aware of harassment reports by Underwood.
2. Defendant’s Knowledge
An employment decision cannot be considered retaliation for protected activity if the
decision-maker did not know about the alleged protected activity. Mulhall v. Ashcroft, 287 F.3d
543, 552-553 (6th Cir. 2002); Fenton v. HiSAN, Inc., 174 F.3d 827, 832 (6th Cir. 1999). However,
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direct evidence of knowledge by the decision-maker is not required; “a plaintiff may survive
summary judgment by producing circumstantial evidence to establish this element.” Mulhall, 287
F.3d at 552; see Allen v. Mich. Dep't of Corr., 165 F.3d 405, 413 (6th Cir. 1999) (knowledge
element satisfied by circumstantial evidence where plaintiff, an African American corrections
officer, was the only African American officer returned to a post after complaining that all African
American corrections officers were removed from that post); Polk v. Yellow Freight Sys., Inc., 876
F.2d 527, 531 (6th Cir. 1989) (knowledge element satisfied where, after plaintiff visited the
Michigan Department of Civil Rights, her supervisor told her, “I know where you’ve been.”).
“[K]nowledge of a plaintiff’s protected activity can be inferred from evidence of the prior
interaction of individuals with such knowledge and those taking the adverse employment action.”
Id. at 553 (citing Kralowec v. Prince George's Cnty., Maryland, 503 F. Supp. 985, 1010 (D.
Md.1980), aff'd, 679 F.2d 883 (4th Cir.), cert. denied, 459 U.S. 872 (1982)) (holding that the
knowledge element was satisfied where plaintiff produced evidence that one county official knew
of the plaintiff’s complaint and that the “prior interaction” of that first official with the second
official, who actually fired the plaintiff, made it “highly improbable . . . that [the first official]
would not have discussed plaintiff’s complaint with [the second official] as soon as [the first
official] obtained this information.”).
Conroy appears to have been the ultimate decisionmaker behind Underwood’s termination.
He testified that he was unaware of her harassment complaint. But after Underwood told Pauley
— twice — about Gibson’s harassing conduct, Pauley told her that Dynamic “would look into it.”
And after the second time, Pauley explained that Gibson “was going through a lot of issues at
home.” Then, at the last meeting, Conroy (according to Underwood) became agitated over
Underwood’s attempts to contact the corporate human resources office after Pauley failed to
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address her complaints. Although Underwood never connected with Spires, the record reflects
that Spires was aware of Underwood’s calls and alerted both Conroy and Pauley about them. And
although Spires may not have known exactly why Underwood was calling, the fact that
Underwood called human resources provoked intense suspicion by Conroy. It is fair to conclude
that Conroy’s knowledge of Underwood’s harassment complaints “can be inferred from evidence
of the prior interaction” between Conroy and Pauley, where Pauley was allegedly aware of the
harassment complaints and attended the meeting in which Conroy terminated Underwood. That
evidence is sufficient to establish at the summary judgment stage of the case that Conroy knew
about Underwood’s complaints over Gibson’s harassment of her.
3. Adverse Action
Dynamic next argues that it its termination of Underwood did not constitute a “materially
adverse” employment action under Title VII or the Tennessee Human Rights Act because it offered
her multiple job assignments, which she refused. In the retaliation context, a “materially adverse”
employment action consists of any action that “well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006).
Such an action “‘must be more disruptive than a mere
inconvenience or an alteration of job responsibilities.’” Michael v. Caterpillar Fin. Servs. Corp.,
496 F.3d 584, 594 (6th Cir. 2007) (quoting Ford v. Gen. Motors Corp., 305 F.3d 545, 553 (6th
Cir. 2002)). “‘A materially adverse change might be indicated by a termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices that might be unique
to a particular situation.’” Ibid.
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Dynamic bases its argument on Hammon v. DHL Airways, 165 F.3d 441, 447 (6th Cir.
1999), where the court held that an employee cannot claim to have suffered an adverse employment
action if she voluntarily resigned. It also cites Davis v. Kohler Co., No. 15-01305, 2017 WL
3611722, at *10 (E.D. Tenn., Aug. 22, 2017), for the proposition that “reassignments or lateral
transfers without accompanying changes in salary, benefits, title, work hours, or material
responsibilities do not constitute adverse employment actions.” Neither case supports Dynamic’s
argument. Underwood did not voluntarily resign. Dynamic fired her. And Dynamic did not
transfer Underwood to a different post with the same benefits, title, hours, or material
responsibilities. Underwood did not accept a transfer. In fact, she was fired, purportedly, for not
accepting one. That amounts to adverse action. Dynamic insists that the action was justified (more
on that later), but it was adverse nonetheless.
4. Causation
To prove the causation element, Underwood must demonstrate “that the ‘unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or actions of the
employer.’” Mys, 886 F.3d at 600 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
360 (2013). Temporal proximity between that protected conduct and the adverse action generally
is not enough, although it is “highly probative evidence of a causal connection.” Arendale, 519
F.3d at 606 (quoting Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000). And “a
temporal connection coupled with other indicia of retaliatory conduct may be sufficient to support
a finding of a causal connection.” Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 737 (6th
Cir. 2006). Courts have “always looked at the totality of the circumstances to determine whether
an inference of retaliatory motive could be drawn.” Vereecke v. Huron Valley Sch. Dist., 609 F.3d
392, 400-01 (6th Cir. 2010).
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Underwood has borne that burden here. After complaining to district manager Pauley
about Gibson’s sexual harassment at least twice (most recently in May 2017) and leaving
voicemails intended for human resources director Spires on May 25 and 26, Dynamic fired her
two weeks later on June 7, 2017. The record reflects that Spires contacted Pauley and Conroy to
notify them about Underwood’s attempts to call her about a situation that Underwood’s “local
branch was not handling [] right.” Spires dep., ECF No.61-4, PageID.497. That apparently
infuriated Conroy, who displayed his displeasure at the termination meeting when he screamed,
blocked the entrance, touched his holstered gun, grilled Underwood about why she contacted
human resources, and accused her of having an “underhand motive” for declining Dynamic’s other
posts. A reasonable factfinder could infer that Conroy terminated Underwood because she
complained about Gibson’s conduct and tried to report to Dynamic’s human resources department
the Knoxville office’s failure to remedy the issue. See Michael, 496 F.3d at 596 (finding a causal
connection between adverse actions alleged and the complaint filed with the defendant’s human
resources department based on (1) a two-day proximity between complaint and action, (2) the
plaintiff received a positive evaluation and award, (3) the subject of the complaint suffered no
disciplinary action, and (4) the defendant violated company policy by disciplining the plaintiff
before providing written notice of complaints).
Underwood has offered evidence that establishes a prima facie case of retaliation.
B. Defendant’s Legitimate Basis for Firing Plaintiff
Dynamic maintains that its decision to terminate Underwood was entirely due to her refusal
to accept a temporary position for the summer and had nothing to do with her complaints about
Gibson’s conduct. That amounts to a legitimate, non-discriminatory reason for its action against
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Underwood. It will undermine Underwood’s circumstantial case, unless it is a pretext for
retaliation. Laster, 746 F.3d at 730.
C. Pretext
“To meet [her] burden on pretext, [Underwood] must produce evidence sufficient that a
finder of fact could reject [Dynamic’s] proffered reason.” Michael, 496 F.3d at 597. Underwood
“‘can demonstrate pretext by showing that the proffered reason (1) has no basis in fact, (2) did not
actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the
challenged conduct.’” Ibid. (quoting Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 434 (6th
Cir. 2002) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000))).
Underwood has offered pretext evidence under the second and third options. Although
Conroy testified that refusing a temporary assignment was considered refusing to work, justifying
termination, his testimony was contradicted by other evidence. Dynamic’s Security Officer’s
Handbook says that a “[r]efusal to accept [a] reasonable assignment” may subject an employee to
“probation,” “suspension,” or “termination,” Security Officer’s Handbook, ECF No. 61-1,
PageID.397, and the company professed to utilize a progressive discipline format. Site supervisor
Garrett testified that after her altercation with Underwood, Dynamic did not have a placement for
her, so she “was out of work for about three months,” but retained her employment with the
company. Although Garrett’s situation is distinguishable from Underwood’s because Dynamic
did not have any temporary positions to offer Garrett, the testimony demonstrates Dynamic’s
willingness to maintain employer-employee relationships with individuals who cannot work for
several months. More to the point, district manager Pauley expressly and repeatedly testified that
Underwood’s decision to accept a temporary position was entirely “optional” and that Underwood
could have “come back and work[ed at] Pellissippi Blount when [it] reopened.” Pauley Dep., ECF
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No. 63-5, PageID.758, 773-74. All of that establishes fact questions over whether Underwood’s
refusal of a temporary reassignment actually motivated the defendant’s decision to fire her and
whether it was sufficient to warrant termination.
* * * * * * * * *
The plaintiff has presented evidence that is sufficient to create fact issues on her retaliation
claim that must be resolved at trial. The defendant’s motion for summary judgment will be granted
on the plaintiff’s hostile work environment claim and denied in all other respects.
III. Motion to Strike Jury Demand
The plaintiff filed a jury demand with her complaint. However, the defendant contends
that she waived her right to a jury trial when she signed papers as a new employee.
On January 6, 2016, Underwood applied to work for Dynamic and received a copy of
Dynamic’s Standard Employee Packet and Employee Handbook, a two-page document that
contains several policies applicable to Dynamic’s employees. The Employee Packet included the
following waiver of a trial by jury, which can be found on the packet’s first page:
In consideration of Dynamic Security, Inc. offering you employment and
employing you, you and Dynamic Security each agree that in the event either party
(or its successors or assigns) brings an action against the other relating to your
recruitment, employment, or termination of employment from Dynamic Security
Inc.[,] the plaintiff in such action agrees to waive his/her rights to a trial by jury and
future [sic] agrees that no demand, request or motion will be made for trial by jury.
This waiver of jury trial will cover (1) all actions, claims and demands directly or
indirectly related to recruitment, employment or termination from Dynamic
Security Inc. (2) All issues and causes of actions brought in any lawsuit in which
an employment related claim is made; and (3) initial, subsequent and future
proceeding related to (1) and (2) above.
By waiving your right to a jury trial[,] you are not limiting your rights to trial by
judge. However, the right to a jury is of value. You may wish to consult an attorney
prior to signing this agreement. If so, take this form with you, however, you will
not be offered employment until this form is signed and returned by you.
Standard Employee Packet, ECF No. 66-1, PageID.864-65.
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Underwood signed the packet, indicating that she “acknowledge[s] receipt of the standard
employee packet[, and] [u]nderstand[s] these Company Policies are binding and [] agree[s] to
follow these policies to the best of [her] ability.” Id. at pageID.865. Additionally, the “Policies”
section of Dynamic’s Security Officer’s Handbook includes a nearly identical jury trial waiver.
Security Officer’s Handbook, ECF No. 61-1, PageID.403-04.
She signed a separate
“Acknowledgment and Receipt of Employee Handbook,” indicating that she is “bound by, and
will abide by, the rules, regulations, and policies set forth in this handbook.” Acknowledgment
and Receipt of Employee Handbook, ECF No. 66-1, PageID.863.
Dynamic has moved to strike the plaintiff’s jury trial demand. Underwood opposes the
motion, contending that the waiver was not knowingly or voluntarily made.
The Seventh Amendment protects a civil litigant’s right to a jury trial in federal court, but
waivers of that right by prospective employees have been found to be valid and enforceable.
However, such a waiver is valid only if an employee does so knowingly and voluntarily.
Hergenreder v. Bickford Senior Living Grp., LLC, 656 F.3d 411, 420 (6th Cir. 2011) (citing K.M.C.
Co. v. Irving Trust Co., 757 F.2d 752, 755–56 (6th Cir. 1985)). The Sixth Circuit applies “ordinary
contract principles” and considers the following factors:
(1) plaintiff’s experience, background, and education; (2) the amount of time the
plaintiff had to consider whether to sign the waiver, including whether the
employee had an opportunity to consult with a lawyer; (3) the clarity of the waiver;
(4) consideration for the waiver; as well as (5) the totality of the circumstances.
Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 668 (6th Cir. 2003) (en banc).
Underwood contends that the waiver is unenforceable because it is part of an adhesion
contract. “Under Tennessee law, an adhesion contract is ‘a standardized contract form offered to
consumers of goods and services on essentially a ‘take it or leave it’ basis, without affording the
consumer a realistic opportunity to bargain and under such conditions that the consumer cannot
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obtain the desired product or service except by acquiescing to the form of the contract.’” Walker
v. Ryan’s Fam. Steak Houses, Inc., 400 F.3d 370, 384 (6th Cir. 2005) (quoting Buraczynski v.
Eyring, 919 S.W.2d 314, 322 (Tenn. 1996) (quoting Black's Law Dictionary 40 (6th ed.1990)));
see also C & L Enters. v. Citizen Band, Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411, 423
(2001) (characterizing adhesion contract as one where a form agreement is “foisted” upon a
“quiescent” party which did not prepare it). A critical component of an adhesion contract is “the
absence of a meaningful choice for the party occupying the weaker bargaining position.” Cooper
v. MRM Investment Co., 367 F.3d 493, 501 (6th Cir. 2004).
In the employment context, Underwood must offer “evidence that [she] would be unable
to find suitable employment if [she] refused to sign [Dynamic’s] agreement.” Id. at 502. She has
not done that. Nor did she even make the argument that “she looked for comparable jobs but was
unable to find one.” Ibid. The jury trial waiver provision is not invalid as a contract of adhesion.
Ibid. (finding no procedural unconscionability where employee failed to present evidence that she
searched for alternative employment); Walker, 400 F.3d at 384-85 (same).
Moreover, all of the Morrison factors, save the first, favor upholding the waiver. First,
Underwood graduated high school in 2001, and worked as a cashier and as an officer for other
security companies. The defendant’s characterization of her as a “sophisticated party” is not
justified, but neither is she disadvantaged. See Walker, 400 F.3d at 381 (upholding district court’s
finding that the sophistication of the plaintiffs, many of which did not graduate high school, was
“low-to-mid level”); Tillman v. Macy’s, Inc., 735 F.3d 453, 461 (6th Cir. 2013) (rejecting the
argument that plaintiff being a “high-school graduate means that she lacks the necessary
‘experience, background, and education’ to consent knowingly to a waiver of her rights”). This
factor does not favor either party.
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Second, Underwood never alleged that she was pressured into signing the agreement in any
way. Compare Walker, 400 F.3d at 381-82 (finding provision purportedly affording applicants
the right to consult an attorney before signing an arbitration agreement insufficient where plaintiffs
“were hired on the spot after a brief interview, during which the hiring manager hurriedly presented
them with various documents that they were instructed to sign” and sometimes would “place an
‘x’ in every spot an applicant is required to sign, and applicants would be told to sign every ‘x’
without any explanation” or “opportunity to take the Arbitration Agreement home.”). The jury
trial waiver expressly provides that applicants “may wish to consult an attorney prior to signing
this agreement. If so, take this form with you, however, you will not be offered employment until
this form is signed and returned by you.” This factor favors the defendant.
Third, the language of the jury trial waivers in both documents is clear. The waiver is
located on the first page of the two-page Standard Employee Packet. The font is the same size as
the other language in the packet, it is written in plain English, and it presents as a separate
paragraph in the packet. In the Handbook, the jury trial waiver policy is set out in a separate
section with a boldfaced title. Underwood does not argue that the language is unclear or hidden.
This factor favors the waiver’s enforcement. See Collins v. Countrywide Home Loans, Inc., 680
F. Supp. 2d 1287, 1294 (M.D. Fla. 2010) (“A provision is conspicuous when it is present in a
separate paragraph, printed in a font that is the same size as the rest of the document, located in
the last paragraph of a relatively short document, and worded in clear and unambiguous
language”).
Fourth, Underwood insists that there is no consideration whatsoever for the jury trial
waiver because the company’s application for employment included language disclaiming that the
document created a “contract of employment” and an at-will relationship between employer and
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prospective employee. She reasons, therefore, that there can be no contract-based jury trial waiver.
However, that disclaimer appeared in the application, not the employee packet that each new
employee signed after hiring. The mutuality of obligation arose when the company agreed to hire
the applicant and the new employee accepted the conditions of employment.
“Under Tennessee contract law, ‘[m]utuality of promises is ‘ample’ consideration for a
contract.’” Seawright v. Am Gen. Fin. Servs., Inc., 507 F.3d 967, 974 (6th Cir. 2007) (quoting
Pyburn v. Bill Heard Chevrolet, 63 S.W.3d 351 (Tenn. Ct. App. 2001) (quoting Rodgers v.
Southern Newspapers, Inc., 214 Tenn. 335, 379 S.W.2d 797, 800 (1964)). In Seawright, the Sixth
Circuit held that, “[u]nder Tennessee law, continued employment can constitute acceptance” of an
arbitration agreement or jury trial waiver. Id. at 973 (quoting Fisher v. GE Med. Sys., 276
F.Supp.2d 891, 895 (M.D. Tenn. 2003) (“By continuing to work at GE, the plaintiffs accepted the
terms of [the arbitration agreement], a binding contract.”). It follows that by accepting a position
with an employer, an employee accepts the proposed conditions of employment. Here, Dynamic
agreed to employ Underwood at will on the condition that she promised to abide by its policies.
This factor favors enforcement of the jury trial waiver.
Fifth, considering these factors together, the total circumstances establish that Underwood
knowingly and voluntarily waived her Seventh Amendment right to a jury trial on her
employment-related claims against Dynamic.
IV. Conclusion
The plaintiff has abandoned her claim for a hostile work environment. She has presented
sufficient facts to overcome the defendant’s motion for summary judgment on her remaining
retaliation claim. However, she has waived her right to a jury trial on that claim.
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Accordingly, it is ORDERED that the defendant’s motion for summary judgment (ECF
No. 61) is GRANTED IN PART AND DENIED IN PART. The plaintiff’s claim discrimination
under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. and the Tennessee Human
Rights Act, Tenn. Code Ann. § 4-21-401, et seq. based on a hostile work environment is
DISMISSED WITH PREJUDICE. The motion is DENIED in all other respects.
It is further ORDERED that the defendant’s motion to strike the jury demand (ECF No.
66) is GRANTED. The case will proceed to trial before the Court sitting without a jury.
It is further ORDERED that the parties will appear via teleconference on October 14,
2020 at 3:00 p.m. for a status conference to establish a trial date and other case management
deadlines.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Date: September 30, 2020
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