Equal Employment Opportunity Commission v. HH Gregg

Filing 111

MEMORANDUM OF THE COURT. Signed by District Judge Kevin H. Sharp on 6/25/2013. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

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Plaintiff,
v.
GREGG APPLIANCES, INC.,

Defendant.

No.: 3:10-00861
Judge Sharp

MEMORANDUM
This is a retaliation case brought against Defendant Gregg Appliances, Inc. by the Equal
Employment Opportunity Commission on behalf of Courtney Keen. Pending before the Court is
a fully briefed Motion for Partial Summary Judgment (Docket No. 68) by which the EEOC seeks
summary judgment on the following defenses raised by Gregg in its Answer to the EEOC’s
Complaint:
1. To the extent any of Plaintiff’s claims were not made the subject of a timely
charge against Gregg Appliances, Inc. d/b/a hhgregg, they are barred by the failure
to pursue/exhaust administrative remedies.
2. To the extent any of Plaintiff’s claims are untimely under the applicable statute
of limitations, they are barred.
6. Any award of punitive damages would be unconstitutional and would violate due
process.
7. Ms. Keen was an employee-at-will and her employment could be terminated at
any time, with or without cause.

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(Docket No. 12, Answer at 8-9).1
I.
As a preliminary matter, Gregg argues that the Court should not consider the pending motion
because it was not filed until December 6, 2011, after the deadline established by the Case
Management Order entered by Judge Trauger. So far as relevant, the Case Management Order
provided:
K. DISPOSITIVE MOTIONS: The parties shall file all dispositive motions on or
before November 28, 2011. Responses to dispositive motions shall be filed within
thirty (30) days after the filing of the motion. Optional replies may be filed within
fourteen (14) days after the filing of the response. Briefs shall not exceed twenty
(20) pages. No motion for partial summary judgment shall be filed except upon leave
of court. Any party wishing to file such a motion shall first file a separate motion
that gives the justification for filing a partial summary judgment motion in terms of
overall economy of time and expense for the parties, counsel and the court.
(Docket No. 20 at 3).
Latching on to the language that “[n]o motion for summary judgment shall be filed except
upon leave of court,” the EEOC insists that it complied with the Case Management Order because
it sought and received leave on November 28, 2011, and filed its partial summary judgment motion
shortly thereafter. However, it is clear to the Court that Judge Trauger intended (as she wrote) that
“all dispositive motions” were to be filed by November 28, 2011. The EEOC should have sought
leave prior to that deadline, and filed its partial motion by the deadline.
Nevertheless, the Court will consider the Motion for Partial Summary Judgment as it was
filed little more than a week late, Gregg has not shown any prejudice, and the Court granted the
EEOC leave to file its Motion. Moreover, considering the motion is in keeping with the principle
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By separate Order issued contemporaneously herewith, the Court resolves Gregg’s Motion for
Summary Judgment, and, to the extent applicable, the factual background set forth in the accompanying
Memorandum is incorporated herein by reference.

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that cases should be decided on their merits, Thacker v. City of Columbus, 328 F.3d 244, 252 (6th
Cir. 2003), and a jury should not be burdened with hearing about issues that are subject to summary
dismissal.
II.
Turning to the merits, Gregg argues that Keen’s termination claim is not within the scope
of her EEOC charge and, as such, it is barred by the failure to exhaust administrative remedies. The
Court disagrees.
In support of its position, Gregg relies exclusively on Keen’s EEOC charge, in which she
checked the box for retaliation, and set forth the following particulars:
I was hired by hhgregg on 10 May of 2004. My last position was assistant manager.
The company employs more than 15.
I was given verbal warnings, written warnings, and other disciplinary actions. I was
given adverse performance evaluations. I had never received any adverse write-ups
or evaluations prior to my complaint of sexual harassment.
I believe that I have been retaliated against in violation of Title VII of the Civil
Rights Act of 1964, as amended.
(Docket No. 72-2 at 1-2).
An employee alleging a violation of Title VII must first file an administrative charge with
the EEOC that is “sufficiently precise to identify the parties, and to describe generally the action or
practices complained of.” 29 C.F.R. § 1601.12(b). Hence, “[a]s a general rule, a Title VII plaintiff
cannot bring claims in a lawsuit that were not included in h[er] EEOC charge.” Younis v. Pinnacle
Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010) (citations omitted). “This rule serves the dual
purpose of giving the employer information concerning the conduct about which the employee
complains, as well as affording the EEOC and the employer an opportunity to settle the dispute
through conference, conciliation, and persuasion.” Id.
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That said, under the “expected scope of investigation test,” the Sixth Circuit has stated “that
‘where facts related with respect to the charged claim would prompt the EEOC to investigate a
different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim.’” Dixon
v. Ashcroft, 382 F.3d 212, 217 (6th Cir. 2004). Here, the EEOC charge was filed after Keens was
terminated and her termination was within the scope of the filed charge, particularly since, in her
intake questionnaire (which Gregg does not quote), Keen states that Sundwall and Skinner “made
up false write ups to fire[] me in retaliation for turning in my former GM for sexual harassment.”
(Docket No. 72-1 at 3). See, Federal Express Corp. v. Holowecki, 552 U.S. 389, 398 (2008);
Williams v. CSX Trans. Co., 643 F.3d 502, 509 (6th Cir. 2011). Summary judgment will be granted
on Gregg’s failure to exhaust remedies defense.
III.
Recognizing that there is no statute of limitations to the EEOC filing of a lawsuit alleging
discrimination or retaliation, see, Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 366 (1977),
Gregg nevertheless argues that “to the extent [the] EEOC is contesting actions Gregg took against
Keen more than 300 days before she filed her EEOC charge, its claims are barred by Title VII’s
statute of limitations.” (Docket No. 79 at 6). However, all of the employment practices about
which the EEOC complains occurred from January 3, 2009 on, and all were within 300 days of the
EEOC charge filed by Keen on October 23, 2009. Summary judgment will be granted on Gregg’s
statute of limitations defense.
III.
As its sixth affirmative defense, Gregg claims that “[a]ny award of punitive damages would
be unconstitutional and violate due process.” This is decidedly incorrect as Kolstad v. Am. Dental

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Ass’n, 527 U.S. 526 (1999) makes clear, and punitive damages may be awarded in cases brought
by the EEOC. EEOC v. Autozone, Inc., 707 F.3d 824, 835 (7th Cir. 2013) (“Punitive damages are
available to the EEOC if it can demonstrate that [the employer] engaged in intentional
discrimination ‘with malice or with reckless indifference to the federally protected rights of an
aggrieved individual.’”).
In its response brief, Gregg effectively acknowledges as much, but claims that what it is
really getting at is that the EEOC will not be able to establish a basis for punitive damages under
Kolstad.2 Understanding this to be the true basis for the defense, and recognizing that Gregg is
entitled to argue and present evidence on the issue of whether the EEOC has met its burden of
establishing that punitive damages are warranted in this case, the Court will deny the request for
summary judgment on this issue.
V.
Finally, the EEOC argues that whether Keen was an at-will employee is irrelevant, as the
only relevant question is whether or not Gregg retaliated against Keen for engaging in protected
activity. As such, the EEOC argues that it is entitled to summary judgment on Gregg’s at-will
affirmative defenses.
An employee’s status as “at-will” is not actually a proper affirmative defense (as opposed

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Kolstad establishes a three-part inquiry:

First, the plaintiff must demonstrate that the individuals perpetrating the discrimination acted
with malice or reckless disregard toward the plaintiff's federally protected rights. Second, the
plaintiff must impute liability to the employer by establishing that the discriminatory actor
worked in a managerial capacity and acted within the scope of his or her employment. Third,
the defendant may nevertheless avoid punitive damage liability by showing that it engaged
in good faith efforts to comply with Title VII.
Fisher v. United Parcel Serv. Inc., 390 Fed. Appx. 465, 474 (6th Cir. 2010).

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to a mere denial). See, Nash v. O.R. Colan Group, LLC, 2012 WL 4338817 at *2 (S.D. Fla. Sept.
20, 2012). Nevertheless, “the basic principle of at-will employment is that an employee may be
terminated for a ‘good reason, bad reason, or no reason at all,’” Engquist v. Oregon Dept. of Ag.,
553 U.S. 591, 605 (2008), and that holds true even where Title VII comes into play, so long as the
reason for termination is not retaliatory or discriminatory. Harden v. AlliedBarton Sec. Serv., 2013
WL 2467714 at *4 (M.D. Tenn. June 7, 2013) (collecting cases) (“an employer can make
employment decisions for good reasons, bad reasons, or no reason at all, so long as the decisions are
not motivated by a discriminatory intent”). Gregg is entitled to argue and prove that Keen was an
at-will employee as part of its evidence of legitimate, non-discriminatory/retaliatory reasons for any
adverse employment action, and summary judgment will not be granted on its at-will employment
allegation.
VI.
On the basis of the foregoing, the EEOC’s Motion for Partial Summary Judgment will be
granted in part and denied in part. It will be granted on Gregg’s failure to exhaust remedies and
statute of limitations defenses, but otherwise denied.
An appropriate Order will be entered.

______________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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