Summerrow v. Chattanooga Boiler and Tank et al

Filing 80

REPORT AND RECOMMENDATION re 33 Motion for Summary Judgment. It is recommended that the motion for summary judgment be GRANTED and that the complaint be DISMISSED. Signed by Magistrate Judge John S. Bryant on 1/26/2015. (xc: Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (ds)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JULIUS SUMMERROW,
Plaintiff
v.
CHATTANOOGA BOILER AND TANK,
Defendant
TO:

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No. 3:13-0297
Judge Trauger/Bryant

THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION
Defendant CBT Manufacturing, Inc., improperly identified

in the complaint Chattanooga Boiler and Tank, has filed its motion
for summary judgment (Docket Entry No. 33). Plaintiff Summerrow,
who is now proceeding pro se, has not filed a response.
For the reasons stated below, the undersigned Magistrate
Judge recommends that Defendant’s motion for summary judgment be
GRANTED and the complaint DISMISSED.
STATEMENT OF THE CASE
Plaintiff
alleging

Julius

employment

Summerrow

discrimination

has

filed

based

upon

his
his

complaint
age

and

retaliation by Defendant for his filing a charge of discrimination,
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq. Plaintiff seeks reinstatement of his employment and
monetary damages.
SUMMARY OF PERTINENT FACTS1
Plaintiff Summerrow began his employment as a boilermaker
at

CBT

1

Manufacturing

in

February

2000.

His

primary

job

This factual summary is derived from Summerrow’s complaint and from
the supporting exhibits filed with CBT Manufacturing’s motion (Docket
Entry Nos. 1 and 33).

responsibility was using a grinder to bevel edges of steel plates
in preparation for welding. This work requires holding a vibrating
15 pound grinder at both waist and shoulder levels.
In August 2009, Summerrow injured his right shoulder
while working at CBT Manufacturing, and he underwent right shoulder
rotator cuff surgery in May 2010. By November 2010, Summerrow’s
treating physician determined that his right shoulder injury had
reached its highest degree of recovery, known as “maximum medical
improvement.”
While undergoing postsurgical rehabilitation for his
right shoulder, Summerrow experienced numbness and tingling in his
right arm. On March 3, 2011, Summerrow underwent right carpal
tunnel surgery.
In August 2011, Summerrow was authorized by his doctor to
return to work at CBT Manufacturing. After working for only a few
weeks, he complained of neck, wrist and shoulder discomfort, and
reported that he could not perform his job duties because of his
physical condition. Summerrow was encouraged to see a doctor, and
he then voluntarily left work.
In

November

2011,

Summerrow

returned

to

CBT

Manufacturing. He presented a medical return-to-work notice only
for his cervical neck impairment. Because Summerrow had also
complained of right shoulder discomfort when he voluntarily left
work, CBT asked Summerrow also to provide a medical explanation of
his right shoulder limitations before returning him to work.
Summerrow has never provided CBT Manufacturing with this requested
medical explanation.

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On

January

10,

2012,

Summerrow

signed

two

workers’

compensation settlement agreements for his right shoulder, wrist
and elbow injuries. He was represented by counsel in these two
workers’ compensation claims. In documents related to both of these
settlement agreements, Summerrow stated, under penalty of perjury,
that he could not return to his prior employment. Finally, on March
27, 2012, Summerrow appeared at an unemployment benefits hearing
and testified, under oath, that at the time of his workers’
compensation settlement agreements he represented to the State of
Tennessee that he was unable to return to his prior employment
because of his right shoulder injury.
STANDARD OF REVIEW
A party may obtain summary judgment by showing “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(a); Covington v. Knox County School Sys., 205 F.3d 912, 914
(6th Cir. 2000). The moving party bears the initial burden of
satisfying the court that the standards of Rule 56 have been met.
See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The
ultimate question to be addressed is whether there exists any
genuine dispute of material fact. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Covington, 205 F.3d at 914 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If so, summary
judgment is inappropriate.
To

defeat

a

properly

supported

motion

for

summary

judgment, the nonmoving party must set forth specific facts showing
that there is a genuine issue of material fact for trial.

If the

party does not so respond, summary judgment will be entered if
3

appropriate. Fed. R. Civ. P. 56(e). The nonmoving party’s burden of
providing specific facts demonstrating that there remains a genuine
issue of material fact for trial is triggered once the moving party
shows an absence of evidence to support the nonmoving party’s case.
Celotex, 477 U.S. at 325. A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In
ruling on a motion for summary judgment, the Court must construe
the evidence in the light most favorable to the nonmoving party,
drawing all justifiable inferences in its favor. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
ANALYSIS
As stated above, Plaintiff Summerrow has not responded in
opposition

to

Defendant’s

motion

for

summary

judgment.

Nevertheless, a district court cannot grant summary judgment in
favor

of

a

movant

simply

because

the

adverse

party

has

not

responded. The court is required, at a minimum, to examine the
movant’s

motion

for

summary

judgment

to

insure

that

it

has

discharged its burden. Carver v. Bunch, 946 F.2d 451, 455 (6th Cir.
1991).
The

Age

Discrimination

in

Employment

Act

prohibits

employers from discriminating “against any individual with respect
to

his

compensation,

terms,

conditions,

or

privileges

of

employment, because of such individual’s age.” 29 U.S.C. § 623(a).
In order to establish a prima facie case of age discrimination, a
Plaintiff must show (1) that he was a member of a protected age
class; (2) that he was discharged or suffered other adverse
employment action; (3) that he was qualified for the position he
4

held,

and (4) that he was replaced by a younger worker. Cox v.

DOT, 53 F.3d 146, 150 (6th Cir. 1995).
The undisputed evidence in this record persuades the
undersigned Magistrate Judge that Summerrow cannot satisfy the
third element of this prima facie case. Specifically, the evidence
demonstrates that following his on-the-job injuries and resulting
surgeries, Summerrow returned to work in August 2011 but, after
working a few weeks, he complained of neck, wrist and shoulder
discomforts and stated that he was unable to perform the duties of
his job due to his physical condition. Thereafter, in the course of
settling

his

workers’

compensation

claims

and

applying

for

unemployment insurance, Summerrow stated on three occasions, under
penalty of perjury, that he was unable to perform his past work
because of his injuries. This evidence stands undisputed in this
record. Thus, Summerrow has failed to establish the essential
elements of a prima facie case of age discrimination.
The Age Discrimination in Employment Act also prohibits
an employer from “discriminat[ing] against any of his employees .
. . because such individual . . . has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding or litigation under [the Act].” 29 U.S.C. § 623(d).
Here, Summerrow has checked the box in his complaint indicating
that he asserts a claim of retaliation for his having filed a
charge of discrimination (Docket Entry No. 1 at 3). However,
Summerrow’s complaint states that his employment was terminated on
or about November 25, 2011, but that he did not file a charge of
discrimination with the Equal Employment Opportunity Commission
until December 19, 2011 (Docket Entry No. 1 at 2-3). The evidence
5

in the record otherwise demonstrates that in November 2011 CBT
Manufacturing

requested

that

Summerrow

provide

a

medical

explanation of his right shoulder limitations before he was allowed
to return to work (Docket Entry No. 33-2 at 2-3). As stated above,
Summerrow never provided the requested medical statement and did
not

work

thereafter.

discrimination

with

Since
the

he

EEOC

did

not

until

file

his

charge

December

19,

2011,

of
the

undersigned finds that the record contains no evidence that would
support a claim of retaliation by CBT against Summerrow based upon
his discrimination charge.
For the reasons stated above, the undersigned Magistrate
Judge finds that the evidence in this case shows that there is no
genuine dispute as to any material facts and that Defendant CBT
Manufacturing is entitled to judgment as a matter of law.
RECOMMENDATION
For the reasons stated above, the undersigned recommends
that the motion for summary judgment on behalf of Defendant CBT
Manufacturing, Inc. be GRANTED and that the complaint be DISMISSED.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
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ENTER this 26th day of January, 2015.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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