Coleman et al v. Parallon Enterprises, LLC
MEMORANDUM OPINION OF THE COURT. Signed by Magistrate Judge Jeffery S. Frensley on 9/29/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
DELANO PORCHIA, and
PARALLON ENTERPRISES INC.
Formerly known as HSS SYSTEMS, LLC. )
Civil Action No. 3-13-CV-0021
Magistrate Judge Frensley
Defendant, Parallon Enterprises, Inc. (“Parallon”) has filed Motions for Summary
Judgment as to the named Plaintiffs (Docket Nos. 48, 51, 54 and 57), to which Plaintiffs have
filed a consolidated Response in Opposition (Docket No. 87-1), and Parallon filed replies
(Docket Nos. 93, 95, 97 and 99). For the reasons stated herein the motions will be GRANTED.
Each of the Plaintiffs was employed by Parallon in a division known as the Provider
Enrollment Department. The Plaintiffs contend that discriminatory practices and policy
enforcement by management resulted in the creation of a hostile work environment ultimately
changing the racial demographics of the entire department from majority African American to
majority Caucasian following a statement made by the department director of his intention to
“change the face of provider enrollment” in 2010. From 2011 through 2012, Plaintiffs contend
that 100% of the terminated employees were African American including the Plaintiffs who were
terminated for various reasons. Plaintiffs allege that their terminations were discriminatory and
as evidence point in part to the statement of “changing the face of the department.” Parallon has
moved for summary judgment on all Plaintiffs’ claims.
The Plaintiffs were all employees of the Provider Enrollment Department which is a
division of Defendant Parallon that assists healthcare providers to enroll with insurance
companies, Medicare and Medicaid to receive compensation for services provided through
programs of those payment entities. During the Plaintiffs’ employment the Provider Enrollment
Department was split into divisions grouped by states. Each group had a manager, two or three
Enrollment Coordinator Team Leads (“Team Lead”) and multiple Credentialing Specialists. The
manager had overall responsibility for the division while the team leads were responsible for a
subset of states or processes within the division and the Credentialing Specialists prepared and
submitted credentialing applications and supporting documentation in order to enroll physicians
and physician groups with payers.
In the fall of 2008, Dennis Cook, became the Director of Provider Enrollment. At that
time, the workforce of the department was 70% African American. In late 2010, Mr. Cook
declared a department initiative to “change the face of provider enrollment.” In the two years
subsequent to that statement each of the Plaintiffs were terminated though Mr. Cook was not
involved in the decision to terminate all of the Plaintiffs’ employment.
Camille Britton, an African American female, was hired on February 7, 2006 as a
Credentialing Specialist in the Provider Enrollment Department. She was promoted to the
position of Team Lead on October 8, 2009. From 2006 until 2009, Ms. Britton reported to three
different managers. During that time she was repeatedly counseled regarding unscheduled
absences and tardies and disciplined seven times for failing to correct the pattern. She received
two final written warnings and was placed on a Performance Improvement Plan (“PIP”) all
related to her attendance issues. In 2012, she reported to another supervisor who issued
additional disciplinary action for attendance problems. During this time, the Defendant allowed
Ms. Britton to change her schedule on multiple occasions to address her attendance issues.
In late 2010, Britton began reporting to a new manager. On January 4, 2011, she was
issued a final written warning and three day suspension for an unscheduled absence in violation
of her work schedule agreement from October 2010. Following her employee performance
review in March 2011, again noting concerns about attendance; at Britton’s request the
Defendant agreed to modify her work schedule. On August 3, 2011, Britton was issued her
fourth final written warning for attendance issues but she continued to have attendance problems
culminating on November 3, 2011 when she was again late to work.
In March 2011, Ms. Britton was approved for intermittent FMLA leave related to the
health of her son. That leave was granted by the defendant and utilized by Ms. Britton on
multiple occasions. On November 3, 2011, Ms. Britton sent her manager an email stating the
Will you please clock me in at 9:10? My Kronos was locked out this
morning. I also called you because I was caught in traffic on the exit ramp.
On November 4, 2011 Ms. Britton’s manager recommended her termination to the
Director of Provider Enrollment, Dennis Cook, and the Human Resources Manager both of
whom agreed with the recommendation and Ms. Britton was terminated based on her pattern of
poor performance not corrected through various counselings, schedule changes and prior
Pamela Brooks, an African American female, was hired in 2006 and was promoted in
2009 to a Team Leader positon. Prior to her promotion she was rated as “needs improvement” in
the category of “teamwork” on her annual performance review. In her first evaluation after
becoming a Team Leader, she again revived a rating of “needs improvement” this time in the
area of “completes work in a timely manner.” Following a restructuring in 2010, Ms. Brooks
received a new supervisor who had concerns with the manner in which Ms. Brooks
communicated in person and by email with her subordinates. Brooks received several
disciplinary actions culminating in a final written warning on June 17, 2011 for sending
confidential and sensitive information to other employees by email. She received an overall
rating of “needs improvement” on her July 20, 2011, performance review. Despite
acknowledging the concerns of her supervisors and committing to meeting the job expectations,
Ms. Brooks received a final warning and three day suspension on January 17, 2012, as a result of
two incidences occurring in December and January wherein she took positions with and made
statements to non-supervisory employees that were inconsistent with the goals and objectives of
the company and undermined management. Brooks continued to exhibit a lack of leadership and
good judgment ultimately resulting in her supervisor recommending her termination to the then
director of Provider Enrollment, Amie Hamtil and Director of Human Resources, Kathyrn
Mastin, both of whom agreed with the recommendation. Ms. Brooks was terminated for failing
to demonstrate good judgment and leadership, failing to improve the work environment and
unprofessional and ineffective communication skills.
Demetrius Coleman, an African American female, was hired by Parallon in 2004 as a
Credentialing Specialist. She was promoted to a Team Lead position in 2008 and ultimately
selected for special assignment as the Medicare Team Leader. Ms. Coleman’s annual
performance review in 2005 rated her as “needs improvement” in the areas of “business ethics”
and “teamwork.” Her then manager, Shelia Chappell, an African American, indicated that Ms.
Coleman “need[ed] to manage her anger better,” “need[ed] to be cautious with her behavior and
more reasonable, less disrespectful for policies and standards, and towards management,” and
“[needed to] have a professional relationship with her peers and management and remove
intolerance she might have toward them due to issues she has with them personally.”
Upon her promotion in 2008 to the position of Team Lead, Ms. Coleman’s then manager
rated her as “needs improvement” in the area of “gives and welcomes feedback” indicating she
lacked skills in giving constructive feedback and needed to continue to work on delivery of
coaching, and maintaining a professional approach in dealing with errors found in the
department. Following her 2008 annual performance review, several employees complained
about her management-style and in early 2010, her supervisory responsibilities were taken away
from her though she experienced no change in title, pay or benefits. Notwithstanding her prior
difficulties with supervision, her supervisor in 2010, Provider Enrollment Manager, Shirley
Roberts, gave her a special assignment as the Medicare Team Lead. In July of 2010, Roberts gave
Coleman a performance review noting concerns with Coleman’s workplace behavior and
interactions with other employees. Coleman received another performance review in September
of 2010 with additional concerns regarding her interaction with other employees. Following that
review, Roberts continued to have concerns with Coleman’s workplace behavior and
professionalism. Roberts continued to coach Ms. Coleman but nonetheless still received
complaints from employees regarding Ms. Coleman’s unprofessional behavior and management
In January 2012, Roberts was advised by another manager that Coleman had openly
celebrated the Department Director’s reassignment advising staff that the director was demoted
and that the new director would discover that Ms. Roberts was incompetent and she would be
gone as well. Three days later, after asking Ms. Coleman to explain while she had missed an
enrollment related conference call Coleman’s response which included pointing her finger at
Roberts and yelling at her in front of other employees, resulted in Roberts feeling threatened by
Coleman. As a result, Roberts recommended Coleman’s termination to the Director of Provider
Enrollment, Dennis Cook and Director of Human Resources both of whom agreed with the
recommendation resulting in Coleman’s termination.
Delano Porchia, an African American male, was hired by Defendant on June 25, 2007 as
a Credentialing Specialist. In his annual performance review in 2008, Porchia was rated by his
then African American supervisor as “needs improvement” in the area of “quality” noting that
his work was at times less accurate and thorough than required, that he did not always apply the
feedback he received to improve performance or adequately monitor his work. After voluntarily
resigning his employment in 2008, Mr. Porchia was rehired in February of 2009. In December
2009, he was placed on a Performance Improvement Plan by his new manager who was also
African American, for failing to meet the department productivity benchmarks. In 2010, Ms.
Roberts became Mr. Porchia’s manager and noted in his September 2010 performance review
that he continued to not meet productivity standards and have problems with accuracy in his
records. In February 2011, Mr. Porchia was issued another employee performance review
continuing to note his failure to meet departmental standards in productivity and while he made
some improvements in his day to day productivity he continued to have issues with follow up
and inaccuracy in his records. In March 2012, Roberts issued Mr. Porchia a written warning and
three day suspension for continuing to work below productivity and quality standards and
ultimately placed him on a Performance Improvement Plan. Based upon Mr. Porchia’s failure to
achieve the productivity and quality expectations set out in the performance plan, Roberts
recommended Mr. Porchia’s termination to Director of Provider Enrollment, Amie Hamtil and
Director of Human Resources, who agreed with the recommendation. On May 8, 2012, Mr.
Porchia was terminated for failing to successfully complete his PIP.
Relevant Legal Standards
1. Motion for Summary Judgment
Under Fed. R. Civ. P. 56(c), summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” A dispute is “genuine” only if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
In order to prevail on a Motion for summary judgment, the moving party must meet the
burden of proving the absence of a genuine issue as to material fact concerning an essential
element of the opposing party’s claim. Celotex v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
2553, 91 L. Ed. 2d 265 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.
1989). In determining whether the moving party has met its burden, the Court must view the
evidence in the light most favorable to the nonmoving party. Matsushita Electric Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
Fed. R. Civ. P. 56 provides that the nonmoving party may not rest upon the mere
allegations or denials of his or her pleading, but his or her response, by affidavits or otherwise,
must set forth specific facts showing that there is a genuine issue for trial. If a nonmoving party,
however, 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, there is no
genuine issue as to any material fact because a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex,
477 U.S. at 322-23, 106 S. Ct. at 2552, 91 L. Ed. 2d at 273. When this occurs, the moving party
is entitled to summary judgment as a matter of law. Id. at 322-23, 106 S. Ct. at 2552; Williams v.
Ford Motor Co., 187 F.3d 533, 537-38 (6th Cir. 1999).
Title VII of the Civil Rights Act
Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the
basis of an individual=s race, color, religion, sex, or national origin, and provides, in part:
It shall be an unlawful employment practice for an employerB
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual=s race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in
any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual=s race, color, religion, sex, or national origin.
42 U.S.C. ' 2000e-2.
A prima facie claim of race discrimination under Title VII requires a plaintiff to establish
the following: (1) He or she is a member of a protected class; (2) He or she was qualified for the
job and performed it satisfactorily; (3) Despite his or her qualifications and performance, he or
she suffered an adverse employment action; 1 and (4) He or she was replaced by a person outside
the protected class or was treated less favorably than a similarly situated individual outside the
protected class. Johnson v. Univ. of Cincinnati, 215 F. 3d 561, 572-73 (6th Cir. 2000). See also
Perry v. McGinnis, 209 F. 3d 597, 601 (6th Cir. 2000). (Footnote added.)
A plaintiff may establish a claim of discrimination under Title VII either by introducing
direct evidence of discrimination, or by proving circumstantial evidence that would support an
inference of discrimination. Johnson v. Univ. of Cincinnati, 215 F. 3d 561, 572 (6th Cir. 2000),
citing Kline v. Tennessee Valley Auth., 128 F. 3d 337, 348 (6th Cir. 1997). AThe direct evidence
and the circumstantial evidence paths are mutually exclusive; a plaintiff need only prove one or
the other, not both.@ Id. If the Plaintiff lacks direct evidence of discrimination, the circumstantial
evidence approach is used and the McDonnell Douglas-Burdine tripartite test is employed. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), as
later clarified by Texas Dep=t of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67
L. Ed. 2d 207 (1981).
42 U. S. C. § 1981 and the Tennessee Human Rights Act (“THRA”)
The standard for evaluating claims of intentional discrimination under § 1981 is the same
as that used under the THRA and Title VII. See Johnson v. University of Cincinnati, 215 F. 3d
561, 573 (6th Cir. 2000); see Lynch v. City of Jellico, 205 S. W. 3d 384, 399 (Tenn. 2006).
Family and Medical Leave Act - 29 U. S. C. § 2601, et seq.
The Family and Medical Leave Act (“FMLA”) entitles an eligible employee to as many
as twelve weeks of leave during any twelve-month period if the employee has a “serious health
An adverse employment action is one that causes a materially adverse change in a term of
employment, such as significantly diminished responsibilities, termination, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, or a material loss of benefits.
See Kocsis v. Multi-Care Mgmt. Inc., 97 F. 3d 876, 885-86 (6th Cir. 1996).
condition that makes the employee unable to perform the functions of the position of such
employee.” 29 U.S.C. § 2612(a)(1)(D). The statute defines “serious health condition” as “an
illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a
hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care
provider.” Id. at § 2611(11). An employee seeking to use his or her FMLA leave must notify
the employer that FMLA-qualifying leave is needed. Arban v. West Publ’g Corp., 345 F.3d 390,
400 (6th Cir. 2003); Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir. 1998).
There are two separate theories of recovery under the FMLA: the “interference” theory
and the “retaliation” theory. Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004).
The “interference” theory is based on 29 U.S.C. § 2615(a)(1), which states that employers cannot
“interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided” by the
FMLA. In order to state an FMLA interference claim, a plaintiff must show that: (1) he or she
was an eligible employee; (2) the defendant was an employer subject to the FMLA; (3) he or she
was entitled to leave under the FMLA; (4) he or she provided the defendant with notice of
intention to take FMLA
leave; and (5) the defendant denied the plaintiff FMLA benefits to
which he or she was entitled. Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 840 (6th
The “retaliation” or “discrimination” theory arises from 29 U.S.C. § 2615(a)(2), which
states that an employer cannot “discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this subchapter.” To establish a prima
facie case of retaliation under the FMLA, a plaintiff must establish that: (1) he or she was
engaged in an activity protected by the FMLA; (2) the employer knew that the plaintiff was
exercising his or her rights under the FMLA; (3) after learning of the plaintiff’s exercise of
FMLA rights, the employer took an adverse employment action against him or her; and (4) there
was a causal connection between the plaintiff’s protected FMLA activity and the adverse
Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012); Killian v. Yorozu Auto. Tenn., Inc., 454
F.3d 549, 556 (6th Cir. 2006).
The Sixth Circuit applies the Title VII burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973) to both FMLA interference
and retaliation claims.
Hostile Work Environment
An employee may establish a violation of Title VII by proving that discrimination based
on his membership in a protected group has created a hostile or abusive work environment. See
Meritor Sav. Bank, FSB v. Vinson, 477 U. S. 57, 66, 106 S. Ct. 2399, 91 L. Ed 2d 49 (1986). In
order for racial harassment to be actionable, it must be “sufficiently severe or pervasive ‘to alter
the conditions of [the victim’s] employment and create an abusive working environment.’” Id. at
67, 106 S. Ct. 2399. “The theory of a hostile environment claim is that the cumulative effect of
the ongoing harassment is abusive.” Hafford v. Seidner, 183 F. 3d 506, 514-15 (6th Cir 1999).
To establish a prima facie hostile work environment case based on race under Title VII
the Plaintiff must establish that: (1) He is a member of a protected class; (2) He was subjected to
unwelcome harassment; (3) The harassment was based on his race; (4) The harassment had the
effect of unreasonably interfering with his work performance by creating a hostile, offensive or
intimidating work environment; and (5) There is employer liability. Id. at 512.
To satisfy the fourth element, Plaintiff must show that the conduct to which he was
subjected was severe or pervasive enough to create an environment that a reasonable person
would find hostile or abusive or and that the victim subjectively regarded it as abusive. Smith v.
Leggett, 220 F. 3d 752, 760 (6th Cir. 2000). The court must consider the totality of the
circumstances in that a hostile work environment is comprised of a “succession of harassing acts,
each of which ‘may not be actionable on its own.’” Clay v. United Parcel Service, Inc., 501 F.
3d 695, 708 (6th Cir 2007). While it is true that the court must consider acts of harassment
directed against other employees of the Plaintiff’s protected class, Plaintiff’s knowledge of those
act is not necessarily sufficient to establish a hostile work environment. Hawkins v. Anheuser
Busch 517 F. 3d 321, 336 (6th Cir 2008).
Plaintiffs assert a combination of factors that they submit establish the existence of a
hostile work environment and an intent to discriminate against African American. The lynchpin
to Plaintiffs’ argument is a statement made by department supervisor, Dennis Cook, in 2010
wherein he declared a department initiative “to change the face of Provider enrollment.”
Plaintiffs contend at that time the department consisted of approximately 70% African
Americans and following a period of disparate treatment and mass termination the percentage of
African American employees dropped to about 30%.
It is well established that direct evidence, is evidence which, if believed requires the
conclusion that unlawful discrimination was at least a motivating factor in the employer’s action.
Jacklyn v. Schering – Plough Health Care Products Sales Corp., 176 F. 3d 921, 926 (6th Cir.
1999). Direct evidence establishes the existence of a fact without any inferences or
presumptions. Norbuta v. Loctite Corp., 181 F. 3d 102 (6th Cir. 1999); see also Manzer v.
Diamond Shamrock Chems. Co., 29 F. 3d 1078, 1081 (6th Cir. 1994)(evidence that requires the
jury to infer a fact is not direct evidence).
An employer may not retaliate against an employee because he has opposed an unlawful
employment practice, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing. 42 U.S.C. ' 2000e-3(a). A prima facie case
of retaliation requires a plaintiff to demonstrate that: (1) He or she engaged in a protected
activity; (2) Defendant knew that Plaintiff was exercising protected rights; (3) Plaintiff suffered
an adverse employment action or 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. Little v. BP Exploration and Oil Co., 265 F.3d 357,
363 (6th Cir. 2001); Morris v. Oldham Co. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000).
If the plaintiff is able to establish a prima facie case, a mandatory presumption of
discrimination is created and the burden shifts to the defendant to articulate some legitimate,
nondiscriminatory reason for the employee=s rejection. If the defendant carries this burden, the
plaintiff must then prove that the proffered reason was actually pretextual. The plaintiff may
establish pretext by showing that, (1) the stated reasons had no basis in fact; (2) the stated
reasons were not the actual reasons; or (3) the stated reasons were insufficient to explain the
defendant=s action. Id. See also, Cicero v. Borg-Warner Automotive, Inc., 280 F.3d 579, 589
(6th Cir. 2002). AA reason cannot be proved to be >a pretext for discrimination= unless it is shown
both that the reason was false, and that discrimination was the real reason.@ St. Mary=s Honor
Center v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993).
The Case At Bar
Hostile Work Environment Claims
The parties disagree on whether Plaintiffs Brooks, Coleman and Britton have asserted a
claim for hostile work environment discrimination. Docket No. 87-1, p. 3, 93, 97, and 99. These
Plaintiffs contend they have stated a claim for hostile work environment discrimination while
Defendant asserts they have not. Plaintiffs argue in addition that evidence of a hostile work
environment provides context and supports the other claims asserted including those regarding
their terminations. Reviewing the allegations of the complaint as well as the submissions of the
parties the court concludes that these Plaintiffs did not assert a separate claim for hostile
environment discrimination and even if they did it would not withstand Defendant’s Motion for
The Complaint asserts various facts on behalf of each of the individual Plaintiffs. It then
states a series of averments entitled “collective allegations” which discuss workplace conduct
Plaintiffs allege created a hostile work environment. However, none of the allegations asserted in
the “collective allegations” relates specifically to these individual plaintiffs. Further, the “claims”
section of the Complaint does not assert a “claim” related to hostile work environment for these
The phrase “to change the face” is not direct evidence of unlawful discrimination. The
phrase is used in many contexts which are not explicitly racial. Undoubtedly anyone hearing
such a statement in an employment context could perceive it was directed specifically at them for
any number of reasons. For the reasons described more fully regarding the claims of the
individual Plaintiffs, the statement is of little significance to the claims asserted.
While the Plaintiffs assert “collective allegations” regarding what they regard as disparate
treatment within the department, the only adverse employment action about which they
specifically complain is their terminations. Otherwise, they have failed to assert a hostile work
environment had the effect of unreasonably interfering with their work performance. Similarly,
the fact that each of the Plaintiffs was subjected to counseling and disciplinary action regarding
the very issues for which they were terminated years prior to the existence of the alleged hostile
work environment and statement by Mr. Cook there is no evidence from which they could
prevail on a hostile work environment claim beyond their knowledge of alleged harassment
directed against other employees.
While Plaintiffs’ allegations and arguments regarding the treatment of others is clearly
relevant on the issue of intent and to provide context for their asserted claims, for the reasons
discussed herein with respect to each individual Plaintiff’s claims, there is insufficient evidence
that would support a hostile work environment claim on behalf of those Plaintiffs that they
experienced a hostile work environment.
Ms. Britton asserts claims of race discrimination under 42 U.S.C. § 1981 and the
Tennessee Human Rights Act (“THRA”) as well as retaliation under the Family and Medical
Leave Act (“FMLA”). 2
Each of Plaintiff’s claims fail because she cannot establish facts from which a jury could
find that the asserted reason for her termination was pretext. Plaintiff has a well-established
pattern and history of attendance problems during her employment with Defendant. She was
counseled and disciplined by Defendant eleven different times by five different managers. She
was issued a final written warning four separate times, placed on a Performance Improvement
Plan and suspended all prior to her termination. She was granted intermittent FMLA leave on
various occasions and allowed to modify her work schedule multiple times in order to address
2 In her response to the Motion for Summary Judgment, Britton asserts a claim of interference with her rights under
the FMLA for denial of leave on November 3, 2011. Because Plaintiff did not assert a claim for interference in her
complaint or allege any facts related to the interference claim therein, the court will not consider it as a stand alone
her attendance issues. It is undisputed that immediately prior to her termination on November 4,
2011, she received a final written warning advising that she could be subject to termination for
further violations. It is likewise undisputed that on November 3, 2011, regarding the attendance
issue resulting in her termination she sent her supervisor the following email:
Will you please clock me in at 9:10? My Kronos was locked out this morning. I
also called you because I was caught in traffic on the exit ramp.
The Defendant’s factual basis for the decision to terminate is her history of attendance
issues and the incident on November 3, 2011 following the final written warning. Plaintiff has
failed to establish the existence of any comparators similarly situated in all relevant respects.
While Plaintiff points to employees outside her protected category who also had attendance
issues, none of the alleged comparators’ attendance issues are comparable in frequency and
severity. Finally, based upon Ms. Britton’s own admission in her email that she was late because
of traffic there is insufficient evidence from which a jury could find that her termination was in
retaliation for her prior exercise of FMLA.
As noted above, Plaintiffs’ collective allegations regarding the alleged hostile work
environment while relevant to the analysis of Ms. Britton’s claims are not dispositive and clearly
insufficient to establish pretext in light of the above analysis. Camille Britton’s issues with
attendance existed and were the subject of counselings and other disciplinary action long before
the existence of the alleged hostile work environment in 2010. She does not assert that the
decision maker in her termination made any inappropriate statements, comments or jokes to her
or anyone else in her presence based on race. Mistreatment of other employees even if
discriminatory does not excuse the Plaintiff from compliance with an employer’s legitimate
policies regarding attendance. For these reasons, Defendant’s Motion for Summary Judgment as
to Ms. Britton is GRANTED.
Plaintiff Brooks submits claims of race discrimination under Title VII, 42 U. S. C. § 1981
and the THRA related to her termination. Defendant asserts it is entitled to summary judgment
because Plaintiff cannot establish that the reason for her termination was pretext. The court
Brooks was counseled by three different managers on multiple occasions regarding her
leadership and judgment as well as her interaction with other employees. She was disciplined
five times receiving two verbal warnings, a written warning, two final written warnings and a
three day suspension. She was ultimately terminated for showing a lack of leadership and
appropriate judgment related to her inappropriate communications with team members and
In support of her contention that the asserted reason for her termination is pretextual Ms.
Brooks notes that the asserted reasons are entirely subjective and disputes the characterization
that her conduct was inappropriate and would support termination. Secondly, she contends that
she was treated differently from her white coworkers in many ways including enforcement of the
dress code and surveillance of her communications with the other employees.
While an employer’s reliance on purely subjective criteria must necessarily be subject to
greater scrutiny courts have repeatedly held that subjective criteria is a sufficient basis upon
which to make such a decision. Scott v. Eastman Chemical, Co., 275 F. Appx. 466, 476 (6th Cir.
2008). Similarly, courts are cautioned when considering proffered reasons not to “act  as a
‘super personnel department,” overseeing and second guessing employers’ business decisions.”
Bender v. Hecht’s Department Stores, 455 F. 3d 612, 627 (6th Cir. 2006).
It also well-established courts must not substitute their judgment for that of the employer
but must look to whether the employer has an honest belief in its proffered reason for
discharging the employee even if that belief is ultimately incorrect. The criteria for application of
the honest belief rule are clear. A plaintiff is required to show “more than a dispute over the facts
upon which the discharge was based.” Braithwaite v. Timken. Co., 258 F. 3d 488, 493-94 (6th
Cir. 2001). The key inquiry is whether the employer made a reasonably informed and considered
decision before taking an adverse employment action. Smith v. Chrysler Corp., 155 F. 3d 799,
807 (6th Cir. 1998). As long as the employer held an honest belief in its proffered reason, “the
employee cannot established pretext even if the employer’s reason is ultimately founds to be
mistaken, foolish, trivial or baseless.” Smith, 155 F. 3d at 806; see also Majewki v. Automatic
Data Processing Inc., 274 F. 3d 1106, 1117 (6th Cir. 2001).
While it is not unexpected that Ms. Brooks would disagree with the Defendant’s
assessment of her conduct, she acknowledges the history and record of counseling and
disciplinary actions she received regarding the conduct for which her employment was ultimately
terminated. In light of this documented conduct and discipline by multiple management officials
over a significant course of time, Defendant has established its honest belief in the facts upon
which the decision was made to terminate Ms. Brooks.
While Plaintiff asserts she was treated differently from her white coworkers in many
ways that support her discrimination claims she has failed to identify any similarly situated
employee who engaged in similar behavior, who had a similar record of disciplinary action and
was not terminated. As with the other Plaintiffs, evidence of the alleged treatment of other
employees while relevant is not dispositive to her claim. There is a record of counseling and
disciplinary action regarding the issues for which Ms. Brooks was terminated prior to the alleged
existence of a hostile work environment in 2010. Ms. Brooks denies she was subjected to any
racially hostile or derogatory comments and in any event, for the reasons stated above, cannot
establish that Defendant’s decision to terminate her employment was pretextual therefore,
Defendant’s Motion for Summary Judgment as to Ms. Brooks is GRANTED.
Defendant has moved for summary judgment on Plaintiff Coleman’s claims of retaliation
under the Tennessee Public Protection Act (“TPPA”) and Tennessee Common Law as well as
her claims for discrimination under Title VII, 42 U. S. C. § 1981 and the THRA. For the reasons
stated herein, Defendant’s Motion is GRANTED.
As an initial matter, Defendant contends that the doctrine of judicial estoppel bars
Coleman’s race and retaliation claims because she did not disclose the claims in her bankruptcy
petition filed on December 29, 2011. Plaintiff responds that because her bankruptcy petition was
dismissed requiring her to pay her creditors in full, she has not derived an unfair advantage by
her failure to disclose the existence of these claims in her bankruptcy petition and should not be
barred from proceeding in this matter. The Court agrees with the Plaintiff.
It is undisputed that the Plaintiff had a duty to disclose these claims in her bankruptcy
petition and failed to do so. Bohanan v. Bridgestone/Firestone North American Tire, LLC, 2007
WL 1091209 at *3 (M. D. Tenn, April 10, 2007). It is likewise undisputed that Plaintiff never
made any attempt to amend her bankruptcy petition in order to disclose the claims. While these
facts generally support application of the doctrine of judicial estoppel they are not ultimately
dispositive of its application. Ultimately, the key to determining the propriety of judicial estoppel
in this circumstance is “whether the party seeking to assert an inconsistent positon would derive
an unfair advantage or impose unfair detriment on an opposing party if not estopped.” New
Hampshire v. Maine, 532 U. S. 742, 751, 121 S. Ct. 1808, 149 L. Ed 2d 968 (2001).
An example would be where a party files a bankruptcy petition and has a plan adopted
that offers relief to the party by eliminating or reducing the obligation owed to a creditor. In such
a circumstance the party would receive a windfall if successful in the litigation because of the
reduction or elimination of the debt. Here however, Plaintiff has and will receive no windfall as a
result of failing to disclose the claim because the bankruptcy has been dismissed and the plaintiff
did not receive an elimination or reduction of any of her debts. Because Plaintiff did not receive
a windfall as a result of her inconsistent position the Court finds that the doctrine of judicial
estoppel should not apply in this case.
To show a claim under the Tennessee Public Protection Act (“TPPA”) a claimant must
establish the following four elements: (1) The plaintiff was an employee of the defendant; (2)
The plaintiff refused to participate in, or remain silent about, illegal activity; (3) The
defendant/employer discharged or terminated the plaintiff’s employment; (4) The defendant
terminated the plaintiff’s employment solely for the plaintiff’s refusal to participate or remain
silent about the illegal activity. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S. W. 3d
422, 437 (Tenn. 2011).
To prevail on a claim of common law retaliatory discharge, an employee must prove (1)
that an at will employment relationship existed between the employee and the employer; (2) that
the employee was discharged; (3) that the employee was discharged for attempting to exercise a
statutory or constitutional right, or for any other reason that violates a clear public policy; and (4)
that such action was a substantial factor in the employer’s decision to discharge the employee.
See Guy v. Mutual of Omaha Insurance Company, 79 S. W. 3d 528, 535 (Tenn. 2002). Thus, the
primary difference between the statutory whistleblower claim and a common law whistleblower
claim is that, to benefit from statutory protection, an employee must demonstrate that his or her
refusal was the sole reason for his or her discharge. T. C. A. § 50-1-304 (a); Guy v. Mutual of
Omaha Insurance Company, 79 S. W. 3d at 535-537.
The TPPA statutorily requires the application of the McDonnell-Douglas burden shifting
framework to claims accruing on or after June 11, 2011. See T. C. A. 50-1-304(g); Williams v.
City of Burns, 465 S. W. 3d 96, 111-12 (Tenn. 2015). Courts also routinely apply the
McDonnell-Douglas framework to common law retaliatory discharge claims. See e. g. Riddle v.
First Tennessee Bank, National Assoc., 497 Fed Appx. 588, 598 (6th Cir. 2012).
Generally, a claim of retaliatory discharge presents the employee with the challenge of
proving the employer’s motivation for the firing. Guy v. Mutual of Omaha Insurance Company,
79 S. W. 3d at 524. In these cases, direct evidence of an employer’s motivation is rarely
available to the employee. Guy v. Mutual of Omaha Insurance Company, supra at 534; Mason v.
Seaton, 942 S. W. 2d 470, 474 (Tenn. 1997). Thus the Court must determine at summary
judgment whether there is evidence showing circumstances under which a reasonable person
could infer retaliatory motive for the discharge. Mason v. Seaton, 942 S. W. 2d 473. The critical
element often is whether the employee can prove a causal relationship between the employee’s
whistleblowing activity and the termination of employment.
With respect to the claims under both the TPPA and Tennessee Common Law for
retaliatory discharge, Plaintiff cannot establish a prima facie case. It is undisputed that Plaintiff
never reported her complaint with the Ethics and Compliance Department to the individual who
made the decision to terminate her employment, Shirley Roberts. As a result, she cannot
establish that the decision maker was aware of her protected activity and therefore cannot
establish a causal connection between the protected activity and the adverse employment action.
For these reasons, Plaintiff’s claim for TPPA and common law retaliatory discharge is dismissed.
With respect to the other claims asserted, Defendant contends that Ms. Coleman was
terminated “because of her disruptive and unprofessional behavior in the workplace.” Plaintiff
responds this proffered reason is pretext and that genuine material issues of fact preclude
summary judgment. Specifically, she denies the allegations that she was “disruptive and
unprofessional, asserts that Caucasian employees engaged in similar conduct without termination
and that the evidence regarding the treatment of other non-Caucasian employees support this
contention. For the reasons stated herein, the Defendant’s motion is GRANTED.
It is undisputed that Ms. Coleman’s alleged lack of professionalism was well documented
over several years by multiple members of management. Ms. Coleman admitted that she was
perceived by other employees as loud, argumentative and confrontational. It is likewise
undisputed that Ms. Coleman was the subject of complaints by other employees regarding her
behavior which were confirmed by the Human Resources Department. Ms. Coleman’s history of
counseling and disciplinary actions, complaints from other employees and admission that her
conduct could be perceived as unprofessional all belie her contention that the proffered reason
for her termination was pretextual. While Plaintiff asserts that several Caucasian employees
engaged in disruptive and unprofessional workplace behavior towards managers and coworkers
not resulting in termination, she has failed to show that those individuals were similarly situated
in all relevant respects. Plaintiff’s arguments in this regard are conclusory and fail to identify the
specific nature of the conduct as well as any pattern or history of conduct equivalent to that of
Ms. Coleman. Therefore, the comparators are not legally relevant. Finally, evidence regarding
the alleged hostile work environment while relevant, is not dispositive. Ms. Coleman has a
history of documented counselings and disciplinary action by multiple members of management
prior to the existence of the alleged hostile work environment in 2010. Further she admits that
she is unaware of any racially derogatory or negative comments made by any manager,
supervisor or director and does not identify any specific race based harassment she experienced.
The allegations regarding the treatment of other minority employees are insufficient to establish
that the reason asserted for Plaintiff’s termination was pretextual. For the reasons stated herein,
Defendant’s Motion for Summary Judgment as to Ms. Coleman is GRANTED.
Defendant moves for summary judgment with respect to Plaintiff Porchia’s claims for
race discrimination and retaliation under 42 U. S. C. § 1981 and the THRA. Plaintiff contends
that there are disputed issues of material fact and therefore summary judgment is inappropriate.
For the reasons stated herein, Defendant’s Motion is GRANTED.
As an initial matter Defendant asserts that Porchia’s claims are barred by the equitable
doctrine of judicial estoppel. As with Defendant Coleman, Plaintiff filed a bankruptcy petition
wherein he failed to list this action as an asset of the estate, he further failed to supplement his
petition to add these claims. Ultimately, however, Mr. Porchia’s bankruptcy was dismissed.
Because he did not obtain relief under the bankruptcy code resulting in the elimination or
reduction of any of his debts, his failure to list this claim does not result in a windfall to him.
Therefore, the court declines to apply judicial estoppel to this claim and Defendant’s motion in
this regard is DENIED.
Defendant asserts that Plaintiff was terminated because of “his failure to meet reasonable
performance expectations.” Plaintiff argues that there are disputed facts regarding the issue of
pretext. He disputes that he was having problems with productivity or meeting performance
expectations, and states that multiple white employees with “subpar objective performance and
productivity” were not terminated and the discriminatory acts toward other black employees in
the department are further evidence of pretext.
Plaintiff initially worked for Defendant as a Credentialing Specialist from 2007 to 2008.
During this time, he reported to an African American manager who documented concerns with
his work quality and productivity. After voluntarily leaving employment for a period of time.
Plaintiff was rehired in 2009. Again reporting to a different African American manager, issues
with his work quality and productivity were noted resulting in his placement on a Performance
Improvement Plan in 2009. In 2010, he began reporting to Shirley Roberts who likewise
determined his performance was below company standards. Roberts addressed her concerns with
Plaintiff on occasions in 2010 and 2011. On March 15, 2012, Roberts issued Plaintiff a written
warning and three day suspension for continuing to work below the department’s productivity
and quality standards and once again placed him on a Performance Improvement Plan (“PIP”).
After Plaintiff failed to meet the goals and objectives of the PIP he was terminated.
Plaintiff’s claims of a hostile work environment are not supported by the evidence. He
simply does not assert any conduct that is sufficiently severe or pervasive that would support any
claim for a hostile work environment.
With respect to his arguments on pretext, it is undisputed that Plaintiff was counseled
multiple times, disciplined and placed on improvement plans during his tenure with the company
by different managers, two of whom were African American. While Porchia contends that there
were white employees with subpar objective performance and productivity issues he offers no
factual basis to support his belief or from which the court could determine they were similarly
situated. His reference to acts against other black employees in the department are relevant but
not dispositive. Plaintiff has a history of documented counseling and discipline regarding the
issues which ultimately led to his termination. These actions occurred well before the existence
of the alleged hostile work environment in 2010. His failure to establish that the asserted reason
for his termination is pretextual is fatal to his claims that his termination was discriminatory or
With respect to Porchia’s claim of retaliation, his admission that he did not complain to
anyone that he was discriminated against while employed by Defendant is fatal. Because he
cannot establish that he engaged in a protected activity he likewise cannot establish that the
decision maker was aware of his participation in a protected activity and the adverse employment
action was caused by his participation. For these reasons, the Plaintiff has failed to establish a
prime facie case of retaliation and this claim must be dismissed.
For the reasons stated herein, Defendant’s Motions for Summary Judgment are
An appropriate Order will follow.
Jeffery S. Frensley
U. S. Magistrate Judge
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