Davis v. Cumberland Container Corp.
MEMORANDUM AND ORDER: For the foregoing reasons, Cumberland Container's Motion for Summary Judgment (Doc. No. 19 ) is GRANTED IN PART with respect Davis' THRA claims and DENIED IN PART with respect her federal claims. Davis' THRA c laims are DISMISSED WITH PREJUDICE. This case will proceed to a jury trial on October 17, 2017, and all deadlines contained in the Court's scheduling order (Doc. No. 22 ) remain in effect. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/18/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
CUMBERLAND CONTAINER CORP.,
CHIEF JUDGE CRENSHAW
MEMORANDUM AND ORDER
Patti Davis filed this action against her current employer, Cumberland Container
Corporation (“Cumberland Container”), alleging violations of federal and state law arising during
the course of her employment. (Doc. No. 26-2.) 1 Before the Court is Cumberland Container’s
Motion for Summary Judgment. (Doc. No. 19.) For the following reasons, Cumberland
Container’s Motion is GRANTED IN PART and DENIED IN PART.
In August 1993, Cumberland Container hired Davis to work in the assembly department.
(Doc. No. 25 at 1.) It later transferred her to the print room, where Davis prepared documents for
operators to use and printed load tags for shipping. (Id.) It is undisputed that Davis has worked
forty hours per week since 1993, although it is disputed whether Davis’ workload decreased to the
point where she could perform her work in twenty-five hours per week by 2013. (Doc. No. 25-1
at 2; Doc. No. 19-1 at 3.)
Both parties agree that the Court may use the Amended Complaint as the operative complaint for the
purposes of summary judgment even though Plaintiff filed it after Defendant moved for summary judgment. (Doc.
No. 26 (responding to summary judgment using the Amended Complaint); Doc. No. 34 at 1 n.1 (agreeing that the
Amended Complaint does not affect the pending motion for summary judgment)).
In 2013 and 2014, Cumberland Container had layoffs in all areas of its facility. (Doc. No.
25 at 2.) In 2013, Chris Landers, Davis’ General Manager, discussed with Davis the possibility of
adding the duty of ordering stock sheets to her existing duties. (Doc. No. 26-3 at 3.) Davis asked
if the additional duties would come with a pay raise, to which Landers did not respond. (Id.)
Nobody at Cumberland Container discussed adding the ordering of stock sheets to her job
responsibilities with Davis again. (Id.)
In 2014, Cumberland Container decided to consolidate the print room job, material
ordering responsibilities, and the “rotary dies.” (Doc. No. 25 at 4.) On November 12, 2014, Landers
informed Davis that he was transferring her to a different position. (Doc. No. 26-3 at 3-4.) Landers
stated that he wanted “a man to do the job” because the rotary dies were heavy. (Id.) Davis told
Landers that she was capable of “helping lift the dies.” (Id. at 4.) Cumberland Container ultimately
selected Andrew Miller, a male approximately twenty years younger than Davis, to do the
consolidated job. (Doc. No. 25 at 5; Doc. No. 26-3 at 3.)
Cumberland Container transferred Davis to the assembly and labeling department. (Doc.
No. 25 at 4.) Davis’ pay, benefits, and hours did not change due to her reassignment. (Doc. No. 25
at 5.) It is disputed whether Davis lost overtime pay, as she has produced some evidence to suggest
that she lost approximately $4,000 per year in overtime pay. (Doc. No. 25 at 5; Doc. No. 26-3 at
4.) Cumberland Container contends that it transferred Davis to the assembly and labeling
department because it was the department that was least likely to send Davis home for lack of
work. (Doc. No. 25 at 6.) Davis states that Cumberland Container sent her home during
approximately nine days in 2015. (Doc. No. 26-3 at 4.) Davis also contends that her new position
is more strenuous than her previous position because it requires her to lift heavy boxes. (Doc. No.
26-3 at 5.)
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.
Davis brings three claims against Cumberland Container: (1) gender discrimination in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; (2)
age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 42
U.S.C. § 6101 et seq.; and (3) gender discrimination in violation of the Tennessee Human Rights
Act (“THRA”), Tennessee Code Annotated § 4-21-101 et seq. (Doc. No. 26-2.) Cumberland
Container moves for summary judgment on all counts, dismissing the Complaint. (Doc. No. 19.)
A. FEDERAL CLAIMS
Cumberland Container moves for summary judgment on Davis’ gender and age
discrimination claims because it claims Davis has not provided any facts that she suffered an
adverse employment action. (Doc. No. 20 at 10.) If Davis did suffer an adverse employment action,
Cumberland Container argues that its legitimate, nondiscriminatory reason for transferring her was
not pretext for gender or age discrimination. (Doc. No. 20 at 13.) Davis argues that she lost
overtime pay in her new position, and there is evidence that Cumberland Container’s legitimate,
nondiscriminatory reason is pretextual. (Doc. No. 26 at 7-11.)
As Davis does not contend that there is direct evidence to support her gender and age
discrimination claims, the Court analyzes both claims under the familiar burden-shifting test, first
recognized in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973). Grosjean v.
First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003) (citing Policastro v. Nw. Airlines, Inc., 297
F.3d 535, 538 (6th Cir. 2002)). Under this test, the plaintiff has the burden of proving a prima facie
case of discrimination. Id. (citing Kline v. Tenn. Valley Auth., 128 F.3d 337, 342 (6th Cir. 1997)).
To establish a prima facie case of discrimination, Davis must establish (1) she is a member
of a protected class; (2) she was subject to an adverse employment action; (3) she was qualified
for the position she held; and (4) she was replaced by someone outside her protected class. Id.
(citing Kline, 128 F.3d at 342). The only element of the prima facie case that Cumberland
Container contests is whether Davis suffered an adverse employment action. 2 (Doc. No. 20 at 10.)
In its reply brief, Cumberland Container argues for the first time that Davis also was not “replaced by
someone outside her protected class.” (Doc. No. 29 at 5.) This is not sufficient because “reply briefs reply to
arguments made in the response brief—they do not provide the moving party with a new opportunity to present yet
another issue for the court’s consideration. Further, the non-moving party ordinarily has no right to respond to the
reply brief, at least not until oral argument. As a matter of litigation fairness and procedure, then, we must treat
[such issues] as waived.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (quoting Novosteel SA v.
United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002)). Even if the Court were to consider Cumberland Container’s
arguments, it does not have any evidence in the Statement of Undisputed Facts as to Davis’ job duties or the male
employee who was transferred to work in the print room, so the Court cannot determine if Davis was replaced or if
Davis suffered an adverse employment action because her new position had less
opportunities to work overtime hours. Denial of overtime can constitute an adverse employment
action. Broska v. Henderson, 70 Fed. Appx. 262, 267 (6th Cir. 2003) (citing Burlington Indus.,
Inc. v. Elerth, 524 U.S. 742 (1998)). Davis presented evidence that she received approximately
$30,000 per year prior to her transfer, even after the economic downturn, and only $26,000 per
year after her transfer. This is sufficient to create a genuine issue of fact for a jury to determine
whether that $4,000 decrease would have occurred had the transfer not occurred. Accordingly, a
reasonable jury could find that Davis has proven a prima facie case of discrimination.
If Davis proves a prima facie case of discrimination, the burden shifts to Cumberland
Container to allege a legitimate, nondiscriminatory reason for its transfer. Grosjean, 349 F.3d at
335 (quoting Kline, 128 F.3d at 349). Here, Cumberland Container asserts that it transferred Davis
because she was not willing to take on the additional duties of the consolidated job. (Doc. No. 20
at 13.) Therefore, the burden shifts to Davis to prove that Cumberland Container’s legitimate,
nondiscriminatory reason is pretext for discrimination. Grosjean, 349 F.3d at 335 (quoting Manzer
v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir. 1994)).
Davis can prove that Cumberland Container’s proffered reason is pretextual by showing
that the 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.” Wexler v. White’s Fine
Furniture, Inc., 317 F.3d 564, 576 (6th Cir. 2003) (en banc). It is disputed whether Cumberland
Container ever offered the consolidated job to Davis or whether it just informed her that it was
transferring her. Therefore, there is a genuine dispute of material fact as to whether Cumberland
her job duties were absorbed by another employee. See Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 538
(6th Cir. 2014) (holding that a genuine dispute of fact existed as to whether the employer eliminated a position when
another employee absorbed some of the duties to “change the nature of his employment,” even when that employee
had additional duties to the duties he absorbed).
Container’s proffered reason has a basis in fact, and summary judgment is denied on the federal
B. THRA CLAIM
In the Court’s August 18, 2017 Order, the Court directed Davis to address the statute of
limitations issue regarding Davis’ THRA claims raised by Cumberland Container in prior
pleadings. (Doc. No. 31.) Particularly, Cumberland Container argues that Davis’ THRA claims are
time-barred by the one year statute of limitations in Tennessee Code Annotated § 4-21-311(d).
(Doc. No. 39.) Davis argues that her THRA claim is not time-barred because she received
discriminatory paychecks will less overtime pay since November 30, 2014, and her working
conditions in the Assembly and Label Department are not safe. (Doc. No. 37 at 2-3.)
Tennessee has imposed a one-year statute of limitations to file a civil cause of action under
the THRA “after the alleged discriminatory practice ceases.” TENN. CODE ANN. § 4-21-311(d).
“In stating that a claim must be brought within one year of the time a practice ‘ceases,’ . . . the
Legislature incorporated the continuing violation exception into the statute of limitations.” Booker
v. The Boeing Co., 188 S.W.3d 639, 648 (Tenn. 2006). There are two situations when the
continuing violation doctrine applies: (1) “where there is some evidence of present discriminatory
activity giving rise to a claim of a continuing violation, for example when an employer continues
to presently impose disparate work assignments or pay rates between similarly situated employee
groups” and (2) “where there has been a longstanding and demonstrable policy of discrimination
such as an established and repeated pattern of paying men more than women.” Conner v. City of
Jackson, Tenn., 669 F. Supp. 2d 886, 891 (W.D. Tenn. 2009) (Breen, J.) (quoting Booker, 188
S.W.3d at 643). The continuing violation doctrine should be used in cases where the
“discriminatory acts cannot be viewed as discrete incidents,” but instead when they “unfold rather
than occur, making it difficult to precisely pinpoint the time when they take place.” Id. (quoting
Booker, 188 S.W.3d at 643). The doctrine does not apply to “discrete incidents” or “individual
acts of discrimination,” but “when the discriminatory acts take place over time.” Id. (quoting
Booker, 188 S.W.3d at 643-44).
Here, the discrete act of discrimination is transferring Davis to the assembly and labeling
department. The decrease in overtime pay is not a disparate pay rate “between similarly situated
employees”—Davis presents no evidence that other employees in the assembly and labeling
department are receiving more overtime opportunities than her. Instead, the decrease in overtime
is merely a “‘consequence[ ]’ of the allegedly discriminatory decision” to transfer Davis to the
assembly and labeling department. See Cline v. BWXT Y-12, LLC, 521 F.3d 507, 512 (6th Cir.
2008) (holding that failing to hire an employee is not a continuing violation even though the
employee did not get to report to work for two years while other employees did) (quoting Booker,
188 S.W.3d at 648). As such, Cumberland Container is entitled to summary judgment on Davis’
For the foregoing reasons, Cumberland Container’s Motion for Summary Judgment (Doc.
No. 19) is GRANTED IN PART with respect Davis’ THRA claims and DENIED IN PART
with respect her federal claims. Davis’ THRA claims are DISMISSED WITH PREJUDICE.
This case will proceed to a jury trial on October 17, 2017, and all deadlines contained in the Court’s
scheduling order (Doc. No. 22) remain in effect.
IT IS SO ORDERED.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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