Jackson v. Star Transport et al

Filing 97

REPORT AND RECOMMENDATION: The undersigned RECOMMENDS Defendants' Motion for Summary Judgement be GRANTED and Plaintiff's claims be DISMISSED. Under Rule 72 (b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days from receipt of this Report and Recommendation within which to file with the District Court any written objections to the proposed findings and recommendations made herein. Any party opposing shall have fourteen (14) days from receipt of any objections fi led regarding this report within which to file a response to said objections. Failure to file specific objections within fourteen (14) days of receipt of this Report and Recommendation may constitute a waiver of further appeal of this Recommendation. ENTERED this 24th day of May, 2011. Signed by Magistrate Judge Joe Brown on 5/24/11. (xc:Pro se party by regular and certified mail.)(af)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JERRI LEIGH JACKSON
Plaintiff

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v.
STAR TRANSPORT, et al.,
Defendants.

To:

Case No. 3:09-0613
Judge Trauger/Brown

The Honorable Aleta A. Trauger

REPORT AND RECOMMENDATION
Presently pending before the Magistrate Judge is the Defendants’ Motion for Summary
Judgement. (Docket Entry 96). No response was filed by the Plaintiff. For the reasons set forth
below, the Magistrate Judge RECOMMENDS Defendants’ Motion for Summary Judgement be
GRANTED and Plaintiff’s claims be DISMISSED.

I. INTRODUCTION
The Plaintiff brings this action under 42 U.S.C. § 2000e-2(a), 42 U.S.C. § 12101, and 29
U.S.C. § 623(a)(1), alleging employment discrimination and retaliation. Plaintiff filed her pro se
case in District Court for Middle District of Tennessee. (Docket Entry 1).

II. BACKGROUND
Plaintiff Jerri Jackson filed this action pro se in the Middle District of Tennessee on June
26, 2009. (Docket Entry 1). On August 10, 2009, the Magistrate Judge found that the Complaint
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was not facially frivolous as to the Defendants Star Transport and directed that process be served
upon the Defendants. (Docket Entry 9). On March 31, 2011, Defendants filed this motion for
summary judgement. (Docket Entry 96). Plaintiff did not respond to the motion for summary
judgment.
Because Plaintiff did not file a response, the Magistrate Judge adopts Defendants’
statement of the facts as true. See Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 (6th
Cir. 1992) (finding that, in the absence of a response to a dispositive motion, “a court’s reliance
on the facts advanced by the movant is proper and sufficient.”). The facts submitted by
Defendants are:
Star is a motor carrier headquartered in Nashville, Tennessee that operates
475 power units with more than 600 employees. While Star is authorized to
operate throughout the United States and Canada, Star focuses its trucking
operation on the eastern region of the United States. Star has regional service
centers in both metropolitan and rural areas from which freight is delivered to its
final destinations.
Star is an equal opportunity employer and prohibits discrimination and
harassment in any form. Star has adopted and disseminated to all its employees a
fair treatment policy and has posted the policy in the employee break rooms
beside the EEO posters. Star was purchased by Covenant Transport in 2006.
Covenant was recently sued by Plaintiff Jackson as well.
Plaintiff Jackson was never an employee of Star. During July of 2008, the
plaintiff, Jerri Jackson, came to Star Transport headquarters in Nashville,
Tennessee. Jackson had taken a training course at Volunteer Training Center, Inc.
(“VTC”) and had arranged through VTC to seek employment at Star. Jackson
reported for an orientation class for prospective drivers on July 7-9, 2008. Bob
Harrigan was the training manager. He participated in orientation and supervised
all orientation leaders. During the course of the orientation class, Mr. Harrigan
interviewed Jackson. He also undertook a thorough review of her application
packet. Ms. Jackson’s application showed that she had left three prior trucking
jobs after very short periods of time, in one case after just one day. Ms. Jackson
also had very little driving experience. Star makes significant investments in its
employees. Ms. Jackson’s spotty employment history, particularly in three prior
truck driving positions, combined with her lack of experience led Star to conclude
that she would not be a reliable employee and hence would not represent a wise
investment for Star as an employer. For these reasons Star did not consider
Jackson to be a qualified applicant.
Prior to Mr. Harrigan’s interview with Ms. Jackson, Mr. Harrigan had
already determined that Ms. Jackson was not a qualified applicant because of her
broken employment record. As Mr. Harrigan was explaining his concerns to Ms.
Jackson, she, without prompting, began to lay numerous EEOC files on Mr.
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Harrigan’s desk. The files completely covered his desk. Mr. Harrigan had never
been involved with the EEOC. Accordingly, he contacted Star’s Human Resource
Director and asked him to come join the meeting with Ms. Jackson. Mr. Harrigan
wanted to confirm that the fact that Ms. Jackson had filed numerous EEOC claims
should not stand as a barrier to the decision he had already made–that Ms.
Jackson was not qualified applicant and should not be hired.
Ms. Jackson’s alleged disabilities had nothing to do with Star’s decision
not to hire her. Jackson stated in her application that she was “triply” disabled;
that she needed daily and nightly access to restroom facilities with “no shoulder
of the road stuff,” and that she needed “a patient trainer whom will work with
me.” During Mr. Harrigan’s interview with her, Ms. Jackson mentioned her need
for restroom facilities and made a comment about adult diapers. Aside from these
comments, Ms. Jackson did not give any specifics about her alleged “triple
disability.” Ms. Jackson did not inform Mr. Harrigan of the particulars of her
purported disabilities, and Star made no decisions about her application for
employment based on her assertions about her disabilities on the application, or
the comments she made during her interview. Star decided not to employ Ms.
Jackson because her work history showed her to be an unreliable employee with
limited experience and hence a poor investment for Star.
Mr. Harrigan did not know anything about Ms. Jackson’s religion at the
time the decision was made not to hire Ms. Jackson. Religion is not a topic that
Mr. Harrigan or Star addresses during orientation interviews. The decision not to
employ Ms. Jackson was not made because of her purported disabilities, her age,
her sex or her religion. The decision not to employ Ms. Jackson was also not
made because she had already filed EEOC complaints against prior employers.
After Star exercised its business judgment that Jackson was not a qualified
applicant, Star arranged for Ms. Jackson to have a bus ticket to her home in
Louisville, Kentucky, and provided her transportation to the bus terminal.
During her deposition, Ms. Jackson expressed her belief that the circling
of the letters “STU” on the Driver Qualification Audit Form indicated that she
had been hired by Star. This simply is not the case. The Driver Qualification
Audit Form is an internal document used by Star. The letters “STU” are an
abbreviation for “Student”, which means the applicant–like Jackson–is a student
driver that has just come out of trucking school and has little or no experience.
(Docket Entry 96) (citations omitted).
Together with their motion for summary judgement and accompanying memoranda,
defendants also filed the plaintiff’s deposition testimony and affidavits of Star Transport’s
Manager Bob Harrigan. (Docket Entry 96). The Magistrate Judge has reviewed these documents,
as well.
III. LEGAL DISCUSSION
A. Standard of Review for a Motion for Summary Judgment
Summary judgment is appropriate if there is “no genuine issue as to any material fact”
and “the movant is entitled to judgement as a matter of law.” Fed. R. Civ. P. 56(c). The main
inquiry is “whether the evidence presents a sufficient disagreement to require submission to a
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jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). After sufficient time for discovery and upon
motion, Fed. R. Civ. P. 56(c) mandates summary judgement against a party who fails “to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
The moving party must show there is “no genuine issue as to any material fact,” and for
this reason, the material presented must be viewed in a “light most favorable to the opposing
party.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In order to survive summary
judgement, the non-moving party “must set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 250; Fed. R. Civ. P. 56(e). Thus, even if the nonmovant
produces some evidence, the production will not be sufficient to defeat summary judgement so
long as no reasonable jury could reach a finding on that issue in favor of the non-moving party.
Anderson, 477 U.S. at 248. The non-moving party “may not rely merely on allegations or denials
in its own pleading; rather, its response must. . . set out specific facts showing a genuine issue
for trial.” Fed. R. Civ. P. 56(e)(2). If the non-moving party fails to do so, then summary
judgement, if appropriate, should be granted for the moving party. Id.
However, “a party is never required to respond to a motion for summary judgement in
order to prevail since the burden of establishing the nonexistence of a material factual dispute
always rests with the movant.” Smith v. Hudson, 600 F.2d 60, 64 (6th Cir. 1979). The movant
retains the burden of establishing that “the moving party is entitled to judgement as a matter of
law,” even if the non-moving party fails to respond. Fed. R. Civ. P. 56(c). The trial court’s duty
is to “intelligently and carefully review the legitimacy of such an unresponded-to motion, even
as it refrains from actively pursuing advocacy or inventing the riposte for a silent party.”

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Guarino, 980 F.2d at 407. In addition, “reasonable inferences must be considered if apparent
from the designated evidence and favorable to the non-moving party.” Id.

B. Analysis
Plaintiff alleges in her Complaint that Defendants rejected her employment due to: (1)
sex and religious discrimination in violation of Title VII of the Civil Rights Act; (2) disability
discrimination in violation of the ADA; (3) age discrimination in violation of the ADEA; and (4)
retaliation in violation of Title VII. (Docket Entry 1, p. 3). The undersigned believes that the
Plaintiff has not established a prima facie case of discrimination on claims 1-3 and the Plaintiff
has not satisfied her burden of showing that the Defendants’ reason for rejecting employment
was merely pretext for a discriminatory purpose. Additionally, the Magistrate Judge does not
believe, based on the facts, that the Defendants retaliated against the Plaintiff after learning of
her prior EEOC charges. 1

1. Employment Discrimination Claims Under Title VII, ADA, and ADEA
The Plaintiff’s claims of discrimination under Title VII, ADA, and ADEA can be
reviewed under similar analysis. The disability discrimination claims under the ADA and the age
discrimination claims under the ADEA are similar to the burden-shifting framework used in
Title VII discrimination claims. Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a), makes
it unlawful for an employer to fail or refuse to hire any individual because of such individual’s
race, color, religion, sex, or national origin. In the absence of direct evidence of discrimination,

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The Plaintiff alleged in her Complaint that she was terminated from employment
as well as alleged that the Defendants’ failed to promote her. In the Defendants’
uncontested motion, it is argued that the Plaintiff was not hired at all, but instead
was seeking employment. Because the Defendants’ Motion is uncontested, and
the Statement of Facts is to be regarded as true, the Magistrate Judge will assume
that the Plaintiff is challenging discrimination and retaliation under a “failure to
employ” claim, and not under a “termination” or “failure to promote” claim.
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claims under Title VII are analyzed under a burden-shifting framework. Plaintiff has the initial
burden of demonstrating a prima facie case of employment discrimination by showing (1) that
she is a member of a protected class; (2) that she was qualified for the position; (3) that, despite
her qualifications, she was rejected; and (4) that, after she was rejected, the employer continued
to seek applicants from persons of plaintiff’s qualifications. McDonnell Douglass Corp. v.
Green, 411 U.S. 792, 803 (1973). 2 3
If the Plaintiff successfully establishes a prima facie case of discrimination under any of
the three statutes the burden shifts to the defendant employer to articulate some legitimate,
nondiscriminatory reason for the plaintiff’s rejection. Id. If the employer proffers such a reason,
the burden swings back to the plaintiff to show that the proffered reason is a pretext for illegal
discrimination. McDonnell Douglas, 411 U.S. at 804.
Here, the Defendants argue it its motion that, based upon undisputed facts, the plaintiff
cannot demonstrate a prima facie case of employment discrimination under either Title VII, the
ADA, or the ADEA because she is unable to establish an essential element of a claim under all
three statutes–that she was qualified for the position she sought. The undersigned Magistrate

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Disability discrimination claims, under the ADA, are analyzed under a similar
burden shifting scheme. The Plaintiff has the initial burden of demonstrating a
prima facie case by showing that: (1) she was “disabled” under the ADA; (2) she
was otherwise qualified to perform the essential functions of the job, with or
without reasonable accommodations; (3) she suffered an adverse employment
action; (4) the employer knew or had reason to know of the plaintiff’s disability;
and (5) a nondisabled person replaced her. Nance v. Goodyear Tire & Rubber
Co., 527 F.3d 539, 553 (6th Cir. 2008) (citing Monette v. Elec. Data Sys. Corp.,
90 F.3d 1173, 1186 (6th Cir. 1996)).

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The ADEA makes it illegal for an employer to discriminate against an individual
because of such individual’s age. 29 U.S.C. § 623(a)(1). A plaintiff claiming that
she was unlawfully terminated in violation of the ADEA must establish a prima
facie case of age discrimination by showing: (1) she was at least 40 years old at
the time of the alleged discrimination; (2) she was subjected to an adverse
employment action; (3) she was otherwise qualified for the position; and (4) she
was replaced by a younger worker. Mickey v. Zeidler Tool & Die Co., 516 F.3d
516, 521 (6th Cir. 2008). (citing Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307,
317 (6th Cir.2007)).
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Judge agrees with the Defendants. The Plaintiff has not provided evidence that she was in fact
qualified for the position. The Plaintiff was unreliable in her previous employments, having left
after very short periods of time. Additionally, she had very little driving experience. This shows
that the Plaintiff was not in fact qualified for the job, and thus she fails to satisfy a key element
of a discrimination claim. Therefore the Plaintiff has not satisfied a prima facie case of
discrimination under either Title VII, the ADA, or the ADEA.
Additionally, the Plaintiff has not offered evidence regarding another common element
of discrimination under Title VII, the ADA, or the ADEA–that a member outside of her
protected class was replaced or hired instead of her. Based on the facts, the Plaintiff has not
taken discovery from the Defendants regarding other driver applicants and their sex, religion,
age, disability or qualification. The Plaintiff fails to show that other individuals outside her
protected class were hired in lieu of her. Therefore, the Plaintiff further cannot satisfy the
elements of a prima facie case of discrimination under any of the three statutes.
Lastly, the Defendants argue that if the Plaintiff succeeded in establishing a prima facie
case, the Plaintiff still fails to show that the Defendants’ reason for rejecting her
employment–her poor record of work at other trucking jobs and Star’s consequent unwillingness
to invest in an employee whose history showed her to be unreliable–was actually a pretext for
illegal discrimination. The undersigned agrees with the Defendants. Despite the Plaintiff’s
contention of the underlying discrimination claim, the Plaintiff has not offered any evidence to
prove that the Defendants’ reasons were merely pretext for discrimination. Therefore, the
Plaintiff has not satisfied her burden of proof, and moreover cannot succeed on her employment
discrimination claims.

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2. Title VII Retaliation Discrimination Claim
Title VII of the Civil Rights Act, 42 U.S.C.§ 2000e-3(a), makes it an unlawful
employment practice for an employer to discriminate against any of his employees ... because
[the employee] has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this subchapter.
Thus, this section prohibits an employer from retaliating against an employee who has
opposed any practice by the employer made unlawful under Title VII and prohibits an employer
from retaliating against an employee who has participated in any manner in an investigation
under Title VII. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578 (6th Cir. 2000).
The Plaintiff claims that she was discriminated against by the Defendants in retaliation for the
Plaintiff's participation in filing EEOC claims.
To establish a claim under retaliation, a Plaintiff must meet the test of a slightly modified
McDonnell Douglas framework by showing: (1) she engaged in activity protected by Title VII;
(2) this exercise of protected rights was known to Defendants; (3) Defendants thereafter took an
adverse employment action against Plaintiff, or Plaintiff was subjected to severe or pervasive
retaliatory harassment by a supervisor; and (4) there was a causal connection between the
protected activity and the adverse employment action or harassment. Id.
If Plaintiff establishes a prima facie case under either clause, then the burden shifts to
Defendants to articulate a legitimate, nondiscriminatory reason for Plaintiff's discharge. Id.
(citing McDonnell Douglas, 411 U.S. at 802). Plaintiff must then demonstrate that the proffered
reason was not the true reason for the employment action, instead, the reason was a mere pretext
for discrimination. Id.
Here, the Plaintiff has also failed to satisfy the requirements of a prima facie case of
retaliation. Based on the facts, the first three elements of a prima facie retaliation case may be
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satisfied merely because the Plaintiff deliberately made the manager, Mr. Harrigan, aware of the
Plaintiff’s prior EEOC claims. However, the facts remain clear that the Defendants did not think
Plaintiff Jackson was qualified for the job, but instead had already determined that the Plaintiff
would not likely be a good candidate for hire. Therefore, the last element of a prima facie case of
retaliation is not satisfied because there is not a causal connection between the Plaintiff’s prior
EEOC claims and the Defendants’ refusal to hire her. Thus, the undersigned believes that the
Plaintiff has not satisfied the elements of a prima facie case, and therefore her retaliation claim
should be denied.
Additionally, like in the employment discrimination claims, assuming the Plaintiff did
establish a prima facie retaliation claim, she still failed to demonstrate that the Defendants’
proffered reason was a mere pretext for discrimination. Plaintiff does not offer any evidence that
the Defendants reason for not hiring her–her poor record of work at other trucking jobs and
Star’s consequent unwillingness to invest in an employee whose history showed her to be
unreliable–was merely pretext for discrimination.
In summary, the undersigned believes from the undisputed facts that Plaintiff Jackson
failed to demonstrate that she was qualified for the job she sought. Further, Plaintiff has offered
no evidence that Defendants accepted employees outside of the Plaintiff’s protected class.
Moreover, the Plaintiff has failed to carry her burden of showing that Star’s proffered reason for
rejecting her employment–her poor record of work at other trucking jobs and lack of driving
experience–was actually a pretext for illegal discrimination. Finally, there is no evidence
suggesting that the Defendants rejected plaintiff in retaliation for her EEOC charges and lawsuits
against other employers.
For the above reasons, the undersigned believes that there is no genuine issue of material
fact for trial and that the Defendants is entitled to judgment as a matter of law.

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IV. CONCLUSION
For the reasons stated above, the undersigned RECOMMENDS Defendants’ Motion for
Summary Judgement be GRANTED and Plaintiff’s claims be DISMISSED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days from receipt of this Report and Recommendation within which to file with the District
Court any written objections to the proposed findings and recommendations made herein. Any
party opposing shall have fourteen (14) days from receipt of any objections filed regarding this
report within which to file a response to said objections. Failure to file specific objections within
fourteen (14) days of receipt of this Report and Recommendation may constitute a waiver of
further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140, reh’g denied, 474 U.S.
1111 (1986).
ENTERED this 24th day of May, 2011.

_________________________
Joe B. Brown
United States Magistrate Judge

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