Harris v. The City of Lewisburg, Tennessee et al
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/31/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
THE CITY OF LEWISBURG,
TENNESSEE and BUCK BEARD,
CHIEF JUDGE CRENSHAW
La’Monn Harris, an African-American, filed this action against the City of Lewisburg,
Tennessee (“Lewisburg” or “the City”) and Buck Beard, his former supervisor, arising from his
employment with the City. (Doc. No. 14.) Before the Court is Defendants’ motion for summary
judgment. (Doc. No. 26.) For the reasons below, this motion will be GRANTED IN PART and
DENIED IN PART.
On March 3, 2011, former Public Works Director Kenny Ring hired Harris to work as a
Laborer for the City of Lewisburg. (Doc. No. 38 at ¶¶ 1-2.) In December 2013 or January 2014,
Buck Beard became Public Works Director. (Id. at ¶ 4.) According to Harris, “things changed
drastically.” (Id.) For example, Beard explained that he used profanity at his first meeting with the
Laborers. (Doc. No. 38 at ¶ 5; Doc. No. 43 at ¶ 17.) Harris asked Beard what to do if Beard “cussed
at him,” and Beard responded that Harris should “just cuss him back.” (Doc. No. 38 at ¶ 6.)
Harris and other employees complained about work assignments. (Doc. No. 43 at ¶ 14.)
However, Harris believes that Beard scrutinized him more because he would disagree with work
assignments. (Doc. No. 38 at ¶ 7.) Beard signed four “supervisory note[s] to file” because Harris
questioned work assignments and created a difficult work environment within the department.
(Doc. No. 43 at ¶ 64.) These notes do not constitute corrective action under Lewisburg’s
progressive discipline policy. (Id.)
February 9 Telephone Conversation between Harris and Beard
At 6:17 a.m. on February 9, 2015, Harris called Beard to tell Beard he could not come to
work because his son had the flu. (Doc. No. 38 at ¶ 10.) At the end of the call, Harris overheard
Beard refer to him as an “SOB.” (Id. at ¶ 12; Harris Dep. at 49-51. 1) Around 6:30 a.m., Harris
called Beard again and repeatedly yelled and cursed at Beard for calling him an “SOB.” (Doc. No.
27-4 at 4. 2) Beard then recommended that Harris’s employment be terminated. (Doc. No. 27-4 at
February 10 Statements to the City Council
On February 10, 2015, Harris complained to the Lewisburg City Council about disparate
and harassing treatment by Beard. (Doc. No. 40-1 at 44; Doc. No. 43 at ¶ 1.) Harris wrote that
Beard’s cursing and “name-calling” created a “hostile work environment.” (Doc. No. 40-1 at 44.)
According to Defendants, Harris did not refer to harassment based on any protected class in his
oral statement. 3 (Doc. No. 38 at ¶ 16.) However, Harris believes that “[t]he story itself is pretty
much discrimination,” and he thought the Council was “under the impression that I was really
talking about race, because of some of the things I was telling them . . . .” (Harris Dep. at 298-99.)
Both Plaintiff’s and Defendant’s submissions of Harris’s deposition transcript (Doc. Nos. 27-1 and 39-1) are
referred to herein as “Harris Dep. at ____.” The page numbers after page 100 of Harris’s deposition are incorrectly
numbered, and the lower number on each page is the correct number. (Doc. No. 38 at ¶ 9 n.1).
Defendants cite an audio recording that Harris purportedly made of this telephone call. The Court granted
Defendants leave to manually file an audio CD containing this recording (Doc. No. 30), but the docket sheet reflects
that the clerk’s office has not received any such audio CD. Thus, the record before the Court on summary judgment
does not contain audio recordings of this call.
Defendants again cite an audio recording that Harris purportedly made of the City Council meeting. As stated
above, the record before the Court on summary judgment does not contain audio recordings.
Lewisburg City Manager Randall Dunn signed a separation notice on February 11 to
discharge Harris for “[i]nsubordinate misconduct, creating a hostile work environment.” (Dunn
Dep. at 75-77; 4 Doc. No. 27-6 at 21.) Dunn testified that he prepared the notice after Beard
informed him that Harris was argumentative and insubordinate. (Dunn Dep. at 75-76.) Beard and
Dunn testified that the notice was prepared on February 10, before Harris talked to the City
Council. (Beard Dep. at 96-97; Dunn Dep. at 76.) Nevertheless, the City decided not to give Harris
the notice because it could appear to be retaliation for his statements to the City Council. (Doc.
No. 43 at ¶ 3.)
The City investigated Harris’s claims for “unlawful harassment, disparate treatment and
discrimination.” (Id. at ¶ 4.) As a result of the investigation, Dunn signed a “supervisory note to
file,” acknowledging that Beard used “inappropriate and/or foul language” and that he had a
problem controlling his temper with employees. (Doc. No. 43 at ¶ 7; Doc. No. 40-1 at 45.) Beard
was told that these problems would not be tolerated and he was required to attend sensitivity
training. (Doc. No. 43 at ¶ 7; Doc. No. 40-1 at 45.) The investigation “found no evidence” to
support Harris’s allegation of discrimination and harassment. (Doc. No. 40-1 at 45.) On April 4,
2015, the City informed Harris of the findings from its investigation. (Doc. No. 43 at ¶ 4.)
Harris’s Medical Leave
Lewisburg’s employee handbook contains a policy regarding the Family and Medical
Leave Act. (Dunn Dep. at 18-19.) Lewisburg does not have a written policy regarding the
Americans with Disabilities Act, or how an employee requests an accommodation. (Doc. No. 43
at ¶¶ 20-21.) The practice is that the employee should ask the City Manager. (Id. at ¶¶ 20-21.) The
City requires individuals that suffer injuries while employed by the City to “have a 100 percent
Both Plaintiff’s and Defendant’s submissions of Dunn’s deposition transcript (Doc. Nos. 27-5 and 39-3) are
referred to herein as “Dunn Dep. at ____.”
release from their doctor without restrictions before they come back to work.” (Dunn Dep. at 2526.)
On May 3, 2015, a brown recluse spider bit Harris’s left arm, which became infected. (Doc.
No. 43 at ¶¶ 26-27.) On May 4, the City approved Harris for FMLA leave. (Id. at ¶¶ 26, 40.) Dunn
knew Harris was on FMLA leave and that Harris submitted requests to return from leave on June
19, July 7, and July 17, 2015. (Id. at ¶¶ 25, 28.) Dunn did not talk to Harris about whether he could
perform the essential functions of his job, but denied his requests to return to work with any
restrictions in place under the City’s “100% healed” policy. (Id. at ¶¶ 36-37.)
Return from Medical Leave
Harris returned on to work on July 20 without any restrictions. Two days later, Harris and
Beard had an argument due to Harris’s end-of-the-day notice that he had to go to court the next
day. (Beard Dep. at 125-27.) Beard told him not to come to work at all and the argument intensified
between them. (Id.) Beard eventually told Harris to bring a note reflecting when he arrived at court
and the time he left. (Harris Dep. at 183-84, 370.) Harris remained upset.
On July 23, Beard met with Harris and fellow employee Henry Foster about productivity.
(Doc. No. 43 at ¶ 45.) Yet another altercation began when Beard asked Harris about a gap in his
work time after Harris’s lunch break. (Doc. No. 40-1 at 49.) Harris became upset and
argumentative. (Id.) He left Beard’s office and entered the break room where other employees
were located. (Id.) Beard followed him. (Id.) Harris pointed his finger and walked at Beard in a
threatening manner, warning Beard that he would get what is coming to him. (Id.) Beard told
Harris to go home and report to City Hall at 8:30 a.m. (Id.) Harris refused and told Beard to call
the police if he wanted. (Id.) Beard called “911” and reported that an employee threatened him,
refused to leave the building, and that Beard feared for his life. (Id.) Police arrived after Harris left.
Dunn is responsible for personnel issues. (Doc. No. 43 at ¶ 44.) He testified that he learned
of the July 23 altercation when Beard called him at home. (Dunn Dep. at 87-88.) Dunn interviewed
several employees about the incident. (Id. at 88-89.) He did not discuss the altercation with Harris.
(Doc. No. 43 at ¶ 47.)
On July 23, the City terminated Harris’s employment. (Id. at ¶ 62.) The separation notice
stated that “employee made a physical threat,” insubordination, poor job performance, and that
Harris refused to leave the premises. (Id.)
II. STANDARD OF REVIEW
Summary judgment is appropriate where there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Pennington v.
State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary
judgment motion has the initial burden of informing the Court of the basis for its motion and
identifying portions of the record that demonstrate the absence of a genuine dispute over material
facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). In deciding a motion for summary
judgment, the Court must review all the evidence, facts and inferences in the light most favorable
to the nonmoving party. Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 268 (6th Cir.
2007). The Court does not weigh the evidence, judge the credibility of witnesses, or determine the
truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court
determines whether sufficient evidence has been presented to make the material issue of fact a
proper jury question. Id. The mere existence of a scintilla of evidence in support of the nonmoving
party’s position will be insufficient to survive summary judgment; rather, there must be evidence
on which the jury could reasonably find for the nonmoving party. Rodgers, 344 F.3d at 595.
Harris asserts claims against the City and Beard for discrimination and failure to
accommodate in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(“ADA”), and retaliation in violation of the First Amendment, the ADA, and the Tennessee Human
Rights Act, Tenn. Code Ann. § 4-21-101 et seq. (“THRA”). Harris asserts claims against the City
for retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”) and 42 U.S.C. § 1981 (“Section 1981”), interference and/or retaliation in violation of
the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”), and violation of the
Tennessee Public Employee Political Freedom Act, Tenn. Code Ann. § 8-50-603 (“PEPFA”).
Defendants move for summary judgment on all of Harris’s claims. In response, Harris
concedes his FMLA interference and Section 1981 claims (Doc. No. 37 at 2 n.1), and does not
address Defendants’ arguments on Harris’s claims under the ADA or the First Amendment against
Beard. Harris’s only specific reference to his ADA discrimination claim is that he “agrees with the
legal elements of an ADA discrimination claim as set forth by Defendants.” (Id. at 12, 13 n.3.)
Further, individuals cannot be liable for retaliation under the THRA. Tenn. Code Ann. § 4-21301(b) (“No individual employee or agent of an employer shall be liable for any violation of part
4 of this chapter that any employer shall be found to have committed.”).
Accordingly, the Court will dismiss Harris’s claim against the City and Beard in his
individual capacity for ADA discrimination, Harris’s claims against the City for FMLA
interference and violation of Section 1981, and Harris’s claims against Beard in his individual
capacity for First Amendment retaliation, ADA retaliation, THRA retaliation, and failure to
accommodate under the ADA. There are no remaining claims against Beard in his individual
Harris’s Termination Claims
First Amendment Retaliation
To establish a First Amendment retaliation claim, Harris must prove that:
(1) he engaged in constitutionally protected conduct;
(2) an adverse action was taken against him that would deter a person of ordinary
firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by his protected conduct.
Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 539 (6th Cir. 2012) (quoting Fritz v. Charter
Tp. of Comstock, 592 F.3d 718, 723 (6th Cir. 2010)). Lewisburg concedes that Harris’s dismissal
was an adverse action, but argues that (1) Harris did not engage in constitutionally protected
speech; and (2) even if he did, Harris’s dismissal was motivated by his “insubordinate outbursts”
rather than any protected speech. (Doc. No. 35 at 15-16.)
“[C]itizens who enter government service ‘must accept certain limitations on [their]
freedoms,’ including limitations on the scope of their First Amendment rights.” Fox v. Traverse
City Area Pub. Sch. Bd. of Educ., 605 F.3d 345, 348 (6th Cir. 2010) (quoting Garcetti v. Ceballos,
547 U.S. 410, 418 (2006)). For a public employee’s speech to be constitutionally protected, he or
she must satisfy the following requirements:
First, the employee must speak on matters of public concern. Second, the employee
must speak as a private citizen and not as an employee pursuant to his official
duties. Third, the employee must show that his speech interest outweighs the
interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.
Mayhew v. Town of Smyrna, Tenn., 856 F.3d 456, 462 (6th Cir. 2017) (internal citations and
quotations omitted). Whether a public employee’s speech is protected by the First Amendment is
a question of law. Id. at 464. Lewisburg does not dispute that Harris’s statements were made as a
private citizen. Instead, it argues that Harris did not address matters of public concern and that its
interest in controlling the workplace outweighed Harris’s speech interests. (Doc. No. 35 at 16.)
“The ‘boundaries of the public concern test are not well defined.’” Mosholder v. Barnhardt,
679 F.3d 443, 449 (6th Cir. 2012) (quoting San Diego v. Roe, 543 U.S. 77, 83 (2004)). “It is not
‘necessary for the entire expression to address matters of public concern, as long as some portion
of the speech does.’” Id. (quoting Westmoreland v. Sutherland, 662 F.3d 714, 719 (6th Cir. 2011)).
A “meaningful inquiry . . . calls for looking into ‘the content, form, and context of a given
statement, as revealed by the whole record,’ and determining whether the employee predominantly
spoke ‘upon matters only of personal interest’ or upon matter of public concern.” Mosholder, 679
F.3d at 449-50 (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)). It is well-established
that complaints about “racially discriminatory policies involve a matter of public
concern.” Garceau v. City of Flint, 572 F. App’x 369, 371 (6th Cir. 2014) (quoting Connick, 461
U.S. at 146).
When viewed most favorably to Harris, the Court concludes that there is sufficient
evidence that Harris addressed matters of public concern on February 10, 2015 because he
complained about racial discrimination. Indeed, the record reflects that he was “making a formal
claim of disparate and harassing treatment by my immediate superior, Buck Beard . . . .”
According to Harris, his oral statement was a complaint of racial discrimination because “[t]he
story itself is pretty much discrimination,” and the Council was “under the impression that I was
really talking about race, because of some of the things I was telling them . . . .” (Harris Dep. at
To be sure, Harris’s speech also contained personal grievances against his supervisors, but
an employee’s motive for speaking does not “dispositively determine whether that individual’s
speech addresses a matter of public concern. . . . .” See Handy-Clay, 695 F.3d at 544
(quoting Chappel v. Montgomery Cty. Fire Prot. Dist. No. 1, 131 F.3d 564, 574 (6th Cir. 1997)).
That Harris made statements “publicly to the City Council, rather than in a memo sent solely to
his superior, supports th[e] conclusion” that he was not addressing matters only of personal
interest. See Westmoreland, 662 F.3d at 720 (citing Haynes v. City of Circleville, Ohio, 474 F.3d
357, 364 (6th Cir. 2007)).
Harris also satisfies “Pickering ‘balancing’—that [his] interests . . . as a citizen, in
commenting upon matters of public concern’ . . . outweighed [Lewisburg’s] ‘interest . . . as an
employer, in promoting the efficiency of the public services it performs.’” Evans-Marshall v. Bd.
of Educ. of Tipp City Exempted Vill. Sch, Dist., 624 F.3d 332, 338-39 (6th Cir. 2010)
(quoting Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill., 397 U.S. 563, 568
(1968)). Lewisburg argues that it had an interest in “maintain[ing] control of the workplace and
the appropriate behavior of its employees.” (Doc. No. 35 at 16.) However, the City does not explain
how Harris’s statements interfered with its ability to maintain control of the Public Works
Department. Again, viewing the facts in a light most favorable to Harris, the Court concludes that
material factual disputes exist as to whether Harris’s interest in addressing racial discrimination
outweighed Lewisburg’s interest in an efficient workplace.
Finally, Harris must show that his protected conduct was “a substantial or motivating factor
in [Lewisburg’s] decision to” terminate his employment. See Handy-Clay, 695 F.3d at 545
(quoting Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 181 (6th Cir. 2008)). This
is a question of “fact, suitable for resolution by a jury unless just one resolution is
reasonable.” Devlin v. Kalm, 630 F. App’x 534, 538 (6th Cir. 2015) (citing Rodgers, 344 F.3d at
602-03). Here, the separation notice is dated February 11, 2015—the day after Harris’s statements
to the City Council. Harris was to be discharged for “[i]nsubordinate misconduct, creating a hostile
work environment.” (Doc. No. 27-6 at 21.) While factual disputes exist as to when the letter was
prepared, it is undisputed that the City decided not to give Harris the separation notice because it
could appear to be retaliation for his statements to the City Council. There is not any evidence that
the City’s intention to terminate Harris changed after February 11. However, on July 23, the day
of Harris’s discharge, Harris and Beard had an altercation that may be sufficient to justify Harris’s
termination. Indeed, it could qualify as an independent legitimate non-retaliatory reason for
Harris’s discharge. See Benison v. Ross, 765 F.3d 649, 661 (6th Cir. 2014) (stating that the
“occurrence of intervening events weakens the relationship” between activity protected by the First
Amendment and an adverse action). As explained below, whether discharge for the July 23
altercation is justified is in dispute because it appears the City failed to follow its own progressive
discipline policy. Again, taking the facts in light most favorable to Harris, a reasonable jury could
conclude that Harris’s complaints to the City Council was a “substantial or motivating factor” in
Accordingly, Defendants’ motion for summary judgment will be denied on this claim.
Statutory Retaliation Claims
Harris also asserts retaliation claims under Title VII, the THRA 5, the ADA, and the FMLA.
Because Harris’s claims are based on circumstantial evidence, the Court will analyze them using
the McDonnell-Douglas burden-shifting framework. Thus, Harris bears the initial burden of
The Court’s analysis of Harris’s Title VII retaliation claim applies to his THRA retaliation claim. See Frizzel v.
Sw. Motor Freight, 154 F.3d 641, 646 (6th Cir. 1998) (citation omitted) (“The Tennessee Supreme Court has held
that courts may use federal case law assessing claims under Title VII to analyze THRA claims.”).
establishing, by a preponderance of the evidence, a prima facie case by showing that (1) he engaged
in protected activity under each statute; (2) Lewisburg knew that he engaged in this protected
activity; (3) Lewisburg took an adverse action against him; and (4) there was a causal connection
between the protected activity and the adverse action. Rorrer v. City of Stow, 743 F.3d 1025, 1046
(6th Cir. 2014) (citing A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir.
2013)) (ADA); Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (citations omitted)
(Title VII); Wade v. Automation Pers. Servs., Inc., 612 F. App’x 291, 300 (6th Cir. 2015) (citations
omitted) (THRA); Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012) (quoting Killian v.
Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006)) (FMLA). Lewisburg concedes that
Harris’s dismissal was an adverse action, but argues that he did not engage in protected activity, it
was unaware of any protected activity, and there was no causal nexus between any protected
activity and Harris’s dismissal. (Doc. No. 35 at 9-11, 21.)
a. Protected Activity
For an activity to be protected under Title VII, Harris “must establish that he challenged
an employment practice that he reasonably believed was unlawful.” Yazidian v. ConMed
Endoscopic Techs., Inc., 793 F.3d 634, 645 (6th Cir. 2015) (citation omitted). Harris made
statements to the City Council about a pattern of disparate treatment, harassment, and coarse
language, and specifically wrote that he was subjected to a “hostile work environment.” “[A]n
employee who complains that an employer is creating a ‘hostile work environment’ engages in
Title–VII–protected activity when the context objectively reveals that the employee is using the
expression to complain about repeated abusive discriminatory comments or treatment.” Id. at 646.
A reasonable jury could conclude that the context objectively reveals that Harris complained to
the City Council about ongoing racial discrimination.
Additionally, Harris engaged in protected activity under the FMLA by requesting and
taking leave for a spider bite on May 4, 2015, and protected activity under the ADA by requesting
accommodations to return to work while on leave. A.C. ex rel. J.C., 711 F.3d at 698. He has
satisfied the first element of his prima facie claims for retaliation.
Although Lewisburg argues that it was unaware of any protected activity, there is no
genuine dispute that the City knew that Harris complained to the City Council, submitted requests
for accommodations to the City, and that the City approved his FMLA leave.
Harris must prove his Title VII, ADA, and FMLA retaliation claims under the “but-for”
causation standard. Laster, 746 F.3d at 731 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133
S. Ct. 2517, 2533 (2013)); E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 770 (6th Cir. 2015) (en
banc) (applying Nassar to ADA retaliation claim); Sharp v. Profitt, 674 F. App’x 440, 451 (6th
Cir. 2016) (“[I]t seems that FMLA retaliation requires a showing of but-for causation.”). This
standard “requires proof that the unlawful retaliation would not have occurred in the absence of
the alleged wrongful action or actions of the employer.” Laster, 746 F.3d at 731 (quoting Nassar,
133 S. Ct at 2533).
Harris does not present any evidence establishing that there was a causal connection
between his ADA requests for accommodation and his termination. The Court will therefore grant
Defendants’ motion for summary judgment on the ADA retaliation claim.
As to his Title VII claim, a reasonable jury could conclude that Harris would not have been
discharged “but-for” his complaints about racial discrimination to the City Council. Harris spoke
to the City Council on February 10, 2015, and was terminated on July 23, 2015, after Harris was
on medical leave for about two-and-a-half months. When Harris’s leave time is excluded,
Lewisburg discharged Harris about three months after his complaint to the City Council, and this
temporal proximity supports a finding of causation when coupled with additional
evidence. See Nguyen v. City of Cleveland, 229 F.3d 559, 567 (6th Cir. 2000) (quoting Parnell v.
West, 114 F.3d 1188, 1997 WL 271751, at *3 (6th Cir. 1997)) (“[P]revious cases that have
permitted a prima facie case to be made based on the proximity of time have all been short periods
of time, usually less than six months.”). The City completed a separation notice dated February
11—the day after Harris’s statements to the City Council. There is no evidence that Lewisburg’s
intention to terminate Harris changed after February 11. Although the July 23 altercation between
Harris and Beard may have been sufficient to justify Harris’s dismissal, the record suggests that
the City did not follow its progressive discipline policy. Taking the facts in the light most favorable
to Harris, a reasonable jury could find that his Title VII protected activity was a “but-for” cause of
As to his FMLA claim, a reasonable jury could conclude that Harris would not have been
discharged “but-for” taking FMLA leave based on temporal proximity. In considering FMLA
retaliation claims, “this Circuit has embraced the premise that in certain distinct cases where the
temporal proximity between the protected activity and the adverse employment action is acutely
near in time, that close proximity is deemed indirect evidence such as to permit an inference of
retaliation to arise.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283-84 (6th Cir. 2012)
(quoting DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004)). Lewisburg approved Harris’s
FMLA leave on May 4, Harris returned to work on July 20, and Lewisburg dismissed Harris on
July 23. Again, excluding his medical leave time, the proximity between his exercising FMLA
rights and termination is sufficient to “meet the low threshold of proof necessary to establish a
prima facie case of retaliatory discharge.” Id. at 283 (holding that termination three weeks after
returning to work and less than two months after taking leave satisfies the causation element of a
prima facie case for FMLA retaliation) (collecting similar cases).
d. Legitimate Non-Retaliatory Reason and Pretext
Because Harris has established prima facie cases of Title VII, THRA, and FMLA
retaliation, the burden of production shifts to Lewisburg to present evidence of a legitimate, nonretaliatory reason for terminating Harris. Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007)
(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993)) (FMLA); Yazidian, 793 F.3d
at 650 (citing Hamilton v. Gen. Elec. Co., 556 F.3d 428, 435 (6th Cir. 2009)) (Title VII). Lewisburg
has carried its burden by articulating that it dismissed Harris due to his actions and behavior on
July 23, 2015. (Doc. No. 35 at 12-13.)
Thus, Harris must establish that Lewisburg’s stated reason is pretext for unlawful
retaliation. Seeger, 681 F.3d at 285 (citing Bryson, 498 F.3d at 570) (FMLA); Yazidian, 793 F.3d
at 650 (citing Shazor v. Prof’l Transit Mgmt., Ltd., 744 F.3d 948, 957 (6th Cir. 2014)) (Title VII).
Harris can do so by showing that Lewisburg’s reason: (1) had no basis in fact; (2) did not actually
motivate Harris’s termination; or (3) was insufficient to motivate the action. Seeger, 681 F.3d at
285 (citing Dews v. A.B. Dick Co.,, 231 F.3d 1016, 1021 (6th Cir. 2000)) (FMLA); Yazidian, 793
F.3d at 651 (citing Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir. 2015)) (Title
Harris offers the following evidence to rebut Lewisburg’s reason on his Title VII and
FMLA claims: (1) after his statements to the City Council, Harris’s supervisors instructed his coworkers to monitor his work; (2) Beard allegedly told Harris while he was on FMLA leave that
Harris “still [had] 12 days. I can’t do nothing to you right now” (Harris Dep. at 232); (3) after
Harris returned from FMLA leave but before he was terminated, Harris was subjected to
heightened scrutiny and performance quotas that were not applied to other employees; (4) Dunn
did not verify Beard’s account of the July 23 altercation with Harris or other employees before
terminating Harris; and (5) Dunn failed to apply Lewisburg’s progressive discipline policy at the
time of his discharge. (Doc. No. 37 at 20-21, 23-24.)
Viewing the facts in a light most favorable to Harris, a reasonable jury could conclude that
the City’s proferred reason for terminating Harris, his conduct on July 23, was pretext for Title VII
and FMLA retaliation. Not only is there a factual dispute as to what took place on July 23, which
the Court must construe in the light most favorable to Harris, it is also undisputed that Lewisburg
has a progressive discipline policy that the City deviated from in its termination of Harris. The
City does not argue that the July 23 altercation was an event that warranted deviating from this
policy. Lewisburg’s failure to follow the progressive discipline policy is an issue of material fact
from which a reasonable jury could conclude that the July 23 altercation was insufficient to
actually motivate Harris’s dismissal. See Lamer v. Metaldyne Co. LLC, 240 F. App’x 22, 33 (6th
Cir. 2007) (citing Harrison v. Metro. Gov’t of Nashville and Davidson Cty., Tenn., 80 F.3d 1107,
1117 (6th Cir. 1996)) (“Evidence that the progressive-discipline policy asserted as a rationale for
an employee's termination was not uniformly applied is evidence of pretext.”).
The Court will therefore deny Defendants’ motion for summary judgment on Harris’s Title
VII, THRA, and FMLA retaliation claims. 6
Lewisburg also argues that Harris’s FMLA retaliation claim should be dismissed because he “received all of the
FMLA leave to which he was entitled,” (Doc. No. 35 at 21), but that does not prevent the City from retaliating
against him for doing so. See Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283-87 (6th Cir. 2012) (analyzing an
FMLA retaliation claim under McDonnell-Douglas where the plaintiff “received all of the FMLA leave to which he
The Tennessee Public Employee Political Freedom Act provides: “It is unlawful for any
public employer to discipline, threaten to discipline or otherwise discriminate against an employee
because such employee exercised that employee’s right to communicate with an elected public
official.” Tenn. Code Ann. § 8-50-603(a). The Tennessee Court of Appeals has explained that the
causation element of a PEPFA claim is the same as the causation element of a THRA retaliation
claim. See Gooch v. City of Pulaski, No. M2006-00451-COA-R3CV, 2007 WL 969398, at *6
(Tenn. Ct. App. Mar. 30, 2007). “[A] plaintiff making a retaliation claim under the THRA ‘must
establish that his or her protected activity was a but-for cause of the alleged adverse action by the
employer.’” Goree v. United Parcel Serv., Inc., 490 S.W.3d 413, 440 (Tenn. Ct. App. 2015)
(quoting Nassar, 133 S. Ct. at 2534). Thus, Harris must prove his PEPFA claim under a standard
of “but-for” causation.
Here, Harris worked for Lewisburg, communicated with the City Council, and was later
discharged. For the reasons stated above regarding the causation element of his Title VII claim,
and regarding the pretext analysis of his Title VII retaliation claim, material factual disputes exist
as to whether these communications were a “but-for” cause of his discharge. Defendants’ motion
for summary judgment will therefore be denied on this claim.
ADA Failure to Accommodate
The ADA provides that employers must make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a disability who is an . . .
employee, unless [the employer] can demonstrate that the accommodation would impose an undue
hardship on the operation of the business of [the employer].” 42 U.S.C. § 12112(b)(5)(A). To
establish a prima facie failure-to-accommodate claim under the ADA, Harris must show that: (1)
he was disabled; (2) he was otherwise qualified for the position, with or without reasonable
accommodation; (3) Lewisburg knew or had reason to know about his disability; (4) he requested
an accommodation; and (5) Lewisburg failed to provide the necessary accommodation. Deister v.
Auto Club Ins. Ass’n, 647 F. App’x 652, 657 (6th Cir. 2016) (citation omitted). Lewisburg does
not contest the first three elements, but argues that Harris did not request an accommodation, and
he received reasonable accommodation in the form of leave. (Doc. No. 35 at 22.)
Here, Harris proposed returning to work with accommodations at least three times. Dunn
did not have any specific conversations with Harris about whether he could perform the essential
functions of his job, and Dunn would not allow Harris to return to work with any restrictions.
Indeed, Dunn testified that the City requires employees who suffer injuries to “have a 100 percent
release from their doctor without restrictions before they come back to work.” Multiple courts have
held that a “100% healed” rule is a “per se” violation of the ADA. See McGregor v. Nat’l R.R.
Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999) (collecting cases). The Sixth Circuit has
explained that “a 100% rule is impermissible as to a disabled person—but one must first be
disabled.” 7 Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir. 2001).
In short, Lewisburg did not know—or go through the required process to find out—whether
Harris could have returned to work with accommodations. Lewisburg categorically rejected his
requests in accordance with its “100% healed” policy. Thus, a reasonable jury could conclude that
Lewisburg violated the ADA. See Keith v. Cty. of Oakland, 703 F.3d 918, 929 (6th Cir. 2013)
(quoting Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 871 (6th Cir. 2007)) (“The duty to
The Court has serious questions as to whether Harris was disabled under the ADA. However, Lewisburg does not
contest the issue, and “where the 100% rule is applied to mildly impaired persons to exclude them from a broad
class of jobs, it may be treating them as disabled even if they are not, thereby qualifying them for protection under
the ADA . . . .” Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir. 2001). Thus, the Court will assume for
purposes of summary judgment that Harris was disabled under the ADA.
engage in the interactive process with a disabled employee is mandatory and ‘requires
communication and good-faith exploration of possible accommodations.’”). Defendants’ motion
for summary judgment on Harris’s ADA failure-to-accommodate claim will therefore be denied.
For the reasons set forth above, Defendants’ Motion for Summary Judgment (Doc. No. 26)
will be GRANTED IN PART and DENIED IN PART.
The Court will enter an appropriate order.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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