Cummins v. Promethean, Inc.

Filing 36

MEMORANDUM signed by District Judge William J. Haynes, Jr on 11/6/2014. (Attachments: # 1 Attachment Text Searchable Memorandum)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

THOMAS CUMMINS,
Plaintiff,

v.
PROMETHEAN, INC.,
Defendant.

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Case No. 3:13-00645
Judge Haynes

MEMORANDUM
Plaintiff, Thomas Cummins, filed this action under Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq. and the American with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq. against the Defendant Promethean, Inc., his former employer. Plaintiff asserts
claims for retaliation and discrimination based upon his depression.
Before the Court is the Defendant’s motion for summary judgment (Docket Entry No. 16)
contending, in sum, that Plaintiff’s proof does not satisfy a prima facie showing of retaliation under
Title VII nor a disability discrimination under the ADA. Plaintiff submits his proof on both claims
are sufficient and material factual disputes exist to deny summary judgment.
For the reasons set forth below, the Court concludes that Plaintiff’s proof is insufficient to
support judgment on his Title VII and ADA claims and the Defendant’s motion for summary
judgment should be granted.

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A. Findings of Fact1
Promethean, which sells interactive whiteboards and other technological devices to
schools, employed Plaintiff in 2008 as an Area Sales Manager. (Docket Entry No. 25, Plaintiff’s
Response to Defendant’s Statement of Undisputed Facts at ¶¶ 4 and 5). In November 2011,
Promethean placed Plaintiff and five other area sales managers on yearly sales quotas for their
respective assigned areas. Id. at ¶ 6. Plaintiff’s sales territory included Tennessee, Kentucky,
West Virginia and Arkansas. Id. at ¶ 5. Promethean also employs “Teacher Learning
Constants,” or “TLCs” who train clients with Promethean’s products to maximize their use of
Promethean products in the schools. Id. at ¶¶ 10-11. TLCs also have a geographic territory. Id.
at ¶ 12. In 2009, Promethean added “Urban Account Specialists” employees who focused on
specific accounts, as opposed to territory. Id. at ¶ 13.
On April 30, 2009, Plaintiff had a conflict with Lawrence Love, an urban account
specialist about Love’s presentation to a number of school principals in Memphis. Id. at ¶¶ 1617. On the morning of the presentation, Love telephoned Plaintiff to inform him that “he’s in
Memphis sitting there with a roomful of principals, wondering where my board is.” Id. at ¶ 18.
Plaintiff told Love that he failed to clarify the exact date of this presentation. Id. During the
conversation, Love, an African-American, told Plaintiff, a Caucasian, that “this was a black thing

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Upon a motion for summary judgment, the factual contentions are viewed in the light
most favorable to the party opposing the motion for summary judgment. Duchon v. Cajon Co.,
791 F.2d 43, 46 (6th Cir. 1986). As discussed infra, upon the filing of a motion for summary
judgment, the opposing party must come forth with sufficient evidence to withstand a motion for
directed verdict, Anderson v. Liberty Lobby, 477 U.S. 242, 247-52 (1986), particularly where
there has been an opportunity for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986).
The Court concludes that under the applicable law, there are not any material factual disputes.
Thus, this section constitutes finding of facts.
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and [Plaintiff] was doing this on purpose.” Id. at ¶ 19.
Plaintiff considered Love’s comment an accusation that Plaintiff was a racist and Plaintiff
wrote Scott Willett and Rob Goldberg, his supervisors that: “I don’t necessarily want to escalate
this, but I did want you to be aware in case there is an escalation from his side.” Id. at ¶ 21.
Plaintiff described his email as an effort to get “some feedback.” Id. at ¶ 22. According to
Plaintiff, Goldberg made light of the incident at annual sales meetings, id. at ¶ 26, and Willett
sent him an email containing a video clip in which Goldberg says “Lawrence Love thinks you’re
a racist. Ha, ha, ha, ha.” Id. at ¶ 27. Plaintiff’s co-workers told Plaintiff that they knew he was
not a racist. Id. at ¶ 29.
In June 2010, Annie Kwan, Defendant’s human resources official, informed Plaintiff that
a female employee of Promethean’s reseller, Personal Computer Systems, alleged that Plaintiff
made inappropriate sexual comments to her as well as another female. Id. at ¶¶ 32-34. Plaintiff
was accused of referring to females as “fine” and “hot” and Plaintiff stated to one of the females
at a trade show that, “we could have made a beautiful life together” and “sit in my lap.” Id. at ¶
35. Promethean required Plaintiff to write a letter of apology, but Plaintiff asserts that he was
only being sarcastic and flirtatious. Id. at ¶¶ 32, 36.
By 2010, Promethean’s business conditions worsened as a result of “an overall decline in
education spending,” and the economy “was obviously in the middle of some pretty big issues.”
Id. at ¶ 51. The Defendant sent employees letters about a reorganization of its business model
and a need “to fundamentally change how we approach the market, rethink our product and
service offerings, and how we support and service our customer base.” Id. at ¶ 52.
For 2011, Plaintiff’s quota was $5 million in sales and, in his August 9, 2011

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performance review, Willet informed Plaintiff that he was “tracking a little behind the annual
number at the midway point.” Id. at ¶55. By November 3, 2011, Plaintiff’s sales of two million
five hundred thirty-nine thousand five hundred ninety-seven dollars ($2,539,597) were just over
50 percent of his annual quota. Id. at ¶ 60. Plaintiff received a Performance Improvement Plan,
(“PIP”) that required two million four hundred sixty thousand four hundred three dollars
($2,460,403) in bookings by the fourth quarter. Id. at ¶ 62. The Defendant also required Plaintiff
to prepare a “Report weekly to detail all customer contact from previous week, including site
meeting, phone calls, seminars and conferences,” with the first such report being due on
November 7, 2012, as well as a monthly report “with a brief description of current projects.”
Id. at ¶ 63. On November 15, 2011, Plaintiff had not provided Willett his weekly reports. Id. at ¶
67. Plaintiff’s failure to do so continued for his remaining time with Defendant. Id. at ¶ 68. By
November 2011, six area sales managers who failed to meet their annual quota, were placed on a
PIP, including Plaintiff. Id. at ¶ 56.
On November 29, 2011, Plaintiff sent a letter to Kwan, Willett and Goldberg disputing
his PIP. Id. at ¶¶ 70-71. Plaintiff also raised the 2009 Love incident and the 2010 sexual
harassment complaints against him. Id. at ¶ 71. Plaintiff requested a “re-opening of the Sexual
Harassment case” and a request to file “a charge of Racism or Reverse Racism against Love. Id.
at ¶ 75. Plaintiff also disclosed his depression and explained that he was uncomfortable working
with “the main contacts at 3 of my largest Enterprise Accounts,” who “are all gay men.” Id. at ¶
72, 74. Plaintiff also requested an account of his vacation time or time for his short-term
disability.” Id. at ¶ 75.
On December 1, 2011, Kwan responded that Promethean would consider Plaintiff for a

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short term disability:
First and foremost, we are concerned about your health. Your e-mail is
Promethean’s first notification of your diagnosis of depression. Promethean will
do all that we can to provide you any assistance within our benefits guidelines. If
your doctor recommends that you go on short term disability (STD) please
contact me so that I can direct you through the application process. You will be
required to submit a written doctor’s recommendation in order to be approved for
STD.
Id. at ¶ 76. As to Love, who had since left Promethean, Kwan invited Plaintiff to provide details
of any racial discrimination against him for investigation. Id. at ¶ 77. Kwan also requested the
identities of the cited gay business partners or contacts. Id. Kwan informed Plaintiff that for the
sexual harassment complaint, she would “be happy to review this new evidence” and “review the
evidence to determine if this new information requires re-opening the matter.” Id. Kwan also
provided Plaintiff his leave balance and FMLA leave. Id. Plaintiff did not request any
accommodation for his cited depression nor provide any additional information about the 2010
sexual harassment charge against him or about the 2009 events with Love. Id. at ¶¶ 78-80.
Plaintiff did not identify any gay persons to whom he referred. Id. at ¶ 81. Plaintiff provides his
explanations why he failed to do, but the facts are that he did not provide any such information.
By January 2012, Defendant terminated 25 employees in its Reduction in Force (“RIF”)
plan. Id. at ¶ 82. Plaintiff was subject to the RIF because he was not responsive on his weekly
reports nor had Plaintiff met his year-end quota. Id. at ¶¶ 85-86. By July 2012, none of the
managers who had received PIPs were employed by Promethean. Id. at ¶ 89.
B. Conclusions of Law
“The very mission of the summary judgment procedure is to pierce the pleadings and to
assess the proof in order to see whether there is a genuine need for trial." Advisory Committee

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Notes on Rule 56, Federal Civil Judicial Procedure and Rules (West Ed. 1989). Moreover,
“district courts are widely acknowledged to possess the power to enter summary judgment sua
sponte, so long as the opposing party was on notice that she had to come forward with all of her
evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986); accord, Routman v. Automatic
Data Processing, Inc., 873 F.2d 970, 971 (6th Cir. 1989).
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), the United States Supreme
Court explained the nature of a motion for summary judgment:
Rule 56(c) of the Federal Rules of Civil Procedure provides that
summary judgment ‘shall be rendered forthwith 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.’ By its very terms, this standard
provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no
genuine issue of material fact.
As to materiality, the substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
477 U.S. at 247-48 (emphasis in the original and added in part). Earlier the Supreme Court
defined a material fact for Rule 56 purposes as "[w]here the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"
Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations
omitted).
A motion for summary judgment is to be considered after adequate time for discovery.
Celotex, 477 U.S. at 326. Where there has been a reasonable opportunity for discovery, the
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party opposing the motion must make an affirmative showing of the need for additional
discovery after the filing of a motion for summary judgment. Emmons v. McLaughlin, 874 F.2d
351, 355-57 (6th Cir. 1989); but see Routman, 873 F.2d at 971.
There is a certain framework in considering a summary judgment motion as to the
required showing of the respective parties as described by the Court in Celotex:
Of course, a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any," which it believes demonstrate the absence of a
genuine issue of material fact. . . . [W]e find no express or implied
requirement in Rule 56 that the moving party support its motion with
affidavits or other similar materials negating the opponent's claim.
Celotex, 477 U.S. at 323 (emphasis deleted).
As the Court of Appeals explained, “[t]he moving party bears the burden of satisfying
Rule 56(c) standards.” Martin v. Kelley, 803 F.2d 236, 239, n. 4 (6th Cir. 1986). The moving
party's burden is to show "clearly and convincingly" the absence of any genuine issues of
material fact. Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir. 1991)(quoting
Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986)). “So long as the movant
has met its initial burden of ‘demonstrat[ing] the absence of a genuine issue of material fact,' the
nonmoving party then `must set forth specific facts showing that there is a genuine issue for
trial.’” Emmons, 874 F.2d at 353 (quoting Celotex and Rule 56(e)).
Once the moving party meets its initial burden, the Court of Appeals warned that “[t]he
respondent must adduce more than a scintilla of evidence to overcome the motion [and]. . . must
‘present affirmative evidence in order to defeat a properly supported motion for summary
judgment.’” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)(quoting Liberty
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Lobby). Moreover, the Court of Appeals explained that:
The respondent must ‘do more than simply show that there is some
metaphysical doubt as to the material facts.’ Further, ‘[w]here the
record taken as a whole could not lead a rational trier of fact to find'
for the respondent, the motion should be granted. The trial court has
at least some discretion to determine whether the respondent's claim
is ‘implausible.’
Street, 886 F.2d at 1480 (citations omitted); see also Hutt v. Gibson Fiber Glass Products, 914
F.2d 790, 792 (6th Cir. 1990) (“A court deciding a motion for summary judgment must
determine ‘whether the evidence presents a sufficient disagreement to require a submission to
the jury or whether it is so one-sided that one party must prevail as a matter of law.’”) (quoting
Liberty Lobby).
If both parties make their respective showings, the Court then determines if the material
factual dispute is genuine, applying the governing law.
More important for present purposes, summary judgment will not lie
if the dispute about a material fact is `genuine' that is, if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.
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Progressing to the specific issue in this case, we are convinced that
the inquiry involved in a ruling on a motion for summary judgment
or for a directed verdict necessarily implicates the substantive
evidentiary standard of proof that would apply at the trial on the
merits. If the defendant in a run-of-the-mill civil case moves for
summary judgment or for a directed verdict based on the lack of
proof of a material fact, the judge must ask himself not whether he
thinks the evidence unmistakably favors one side or the other but
whether a fair-minded jury could return a verdict for the plaintiff on
the evidence presented. The mere existence of a scintilla of evidence
in support of the plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.
The judge's inquiry, therefore, unavoidably asks whether reasonable
jurors could find by a preponderance of the evidence that the plaintiff
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is entitled to a verdict -- `whether there is [evidence] upon which a
jury can properly proceed to find a verdict for the party producing it,
upon whom the onus of proof is imposed.'
Liberty Lobby, 477 U.S. at 248 (citation omitted and emphasis added).
It is likewise true that:
“In ruling on [a] motion for summary judgment, the court must
construe the evidence in its most favorable light in favor of the party
opposing the motion and against the movant. Further, the papers
supporting the movant are closely scrutinized, whereas the opponent's
are indulgently treated. It has been stated that: `The purpose of the
hearing on the motion for such a judgment is not to resolve factual
issues. It is to determine whether there is any genuine issue of
material fact in dispute. . .”
Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962) (citation
omitted). As the Court of Appeals stated, "[a]ll facts and inferences to be drawn therefrom must
be read in a light most favorable to the party opposing the motion." Duchon v. Cajon Company,
791 F.2d. 43, 46 (6th Cir. 1986).
The Sixth Circuit further explained the District Court's role in evaluating the proof on a
summary judgment motion:
A district court is not required to speculate on which portion of the
record the nonmoving party relies, nor is it obligated to wade through
and search the entire record for some specific facts that might support
the nonmoving party's claim. Rule 56 contemplates a limited
marshalling of evidence by the nonmoving party sufficient to
establishing a genuine issue of material fact for trial. This
marshalling of evidence, however, does not require the nonmoving
party to "designate" facts by citing specific page numbers. Designate
means simply "to point out the location of." Webster's Third New
InterNational Dictionary (1986).
Of course, the designated portions of the record must be presented
with enough specificity that the district court can readily identify the
facts upon which the nonmoving party relies; but that need for
specificity must be balanced against a party's need to be fairly
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apprised of how much specificity the district court requires. This
notice can be adequately accomplished through a local court rule or
a pretrial order.
InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). In this district, the parties
must provide specific references to the proof upon which they rely. See Local Rule 56.01(c)
(requiring each party to provide a statement of undisputed facts to which the opposing party
must respond).
In Street, the Court of Appeals discussed the trilogy of leading Supreme Court decisions,
and other authorities on summary judgment and synthesized ten rules in the "new era" on
summary judgment motions:
1.
Complex cases are not necessarily inappropriate for summary
judgment.
2.
Cases involving state of mind issues are not
necessarily inappropriate for summary judgment.
3.
The movant must meet the initial burden of showing `the
absence of a genuine issue of material fact' as to an essential element
of the non-movant's case.
4.
This burden may be met by pointing out to the court that the
respondent, having had sufficient opportunity for discovery, has no
evidence to support an essential element of his or her case.
5.
A court should apply a federal directed verdict standard in
ruling on a motion for summary judgment. The inquiry on a
summary judgment motion or a directed verdict motion is the same:
`whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that the party must
prevail as a matter of law.'
6.
As on federal directed verdict motions, the `scintilla rule'
applies, i.e., the respondent must adduce more than a scintilla of
evidence to overcome the motion.
7.

The substantive law governing the case will determine what
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issues of fact are material, and any heightened burden of proof
required by the substantive law for an element of the respondent's
case, such as proof by clear and convincing evidence, must be
satisfied by the respondent.
8.
The respondent cannot rely on the hope that the trier of fact
will disbelieve the movant's denial of a disputed fact, but must
`present affirmative evidence in order to defeat a properly supported
motion for summary judgment.'
9.
The trial court no longer has the duty to search the entire
record to establish that it is bereft of a genuine issue of material fact.
10.
The trial court has more discretion than in the `old era' in
evaluating the respondent's evidence. The respondent must `do more
than simply show that there is some metaphysical doubt as to the
material facts.' Further, `[w]here the record taken as a whole could
not lead a rational trier of fact to find' for the respondent, the motion
should be granted. The trial court has at least some discretion to
determine whether the respondent's claim is `implausible.
Street, 886 F.2d at 1479-80.
The Court has distilled from these collective holdings four issues that are to be addressed
upon a motion for summary judgment: (1) has the moving party "clearly and convincingly"
established the absence of material facts?; (2) if so, does the plaintiff present sufficient facts to
establish all the elements of the asserted claim or defense?; (3) if factual support is presented by
the nonmoving party, are those facts sufficiently plausible to support a jury verdict or judgment
under the applicable law?; and (4) are there any genuine factual issues with respect to those
material facts under the governing law?

1. Title VII
For his retaliation claim, Plaintiff must present evidence (1) that he engaged in protected
activity under Title VII; (2) that the Defendant knew Plaintiff had exercised those rights; (3) that
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the Defendant then took an adverse employment action against the Plaintiff; and (4) that a causal
connection exists between Plaintiff’s protected activity and the adverse employment action.
Morris v. Oldham Cty. Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000).
As to Plaintiff’s protected activity, the only identifiable activity by Plaintiff is his
November 16, 2011 letter to Kwan, Defendant’s human resources official, about the Love
incident, the sexual harassment charges against him, and his comments on his distaste of
business with allegedly gay men. Under Willoughby v. Allstate Ins. Co., 104 Fed. Appx. 528,
529-31 (6th Cir. 2004), the Court concludes this letter does not constitute protected activity.
Assuming the letter so qualifies, the Court does not find Plaintiff’s proof of the 2009 and 2010
incidents to bear any causal relationship to the Defendant’s business decision, in 2012, to
implement a RIF due to lost business that included termination of several area managers,
including Plaintiff.
In any event, assuming “the burden of production of evidence shifts to the employer to
‘articulate some legitimate, nondiscriminatory reason’ for its action,” Canitia v. Yellow Freight
Sys. Inc., 903 F.2d 1064, 1066 (6th Cir. 1990), the Court concludes that the Defendant’s proof
on Plaintiff’s job performance standards satisfies this burden and Plaintiff lacks any proof of
pretext. Thus, the Court concludes that the Defendant’s termination of Plaintiff was not
retaliatory. Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996).
2. The ADA
The ADA was enacted to counterbalance society's historic tendency to isolate and
segregate individuals with disabilities. 42 U.S.C. § 12101. The ADA ensures that individuals
living with disabilities are treated fairly and afforded equal opportunity within the workplace,

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among other areas. Id. Thus, the ADA prohibits an employer from discriminating “against a
qualified individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions and privileges of employment.” 42 U.S.C. § 12112(a).
For a claim of discrimination under the ADA, Plaintiff must prove that: (1) he is an
individual with a disability; (2) he is "otherwise qualified" to perform the job requirements, with
or without reasonable accommodation; and (3) he was either denied a reasonable accommodation
for his disability or he suffered an adverse employment action solely because of his disability.
Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir. 1997). The term “qualified individual” means
“an individual with a disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or desires.” 42 U.S.C. §
12111(8). “The definition of disability in [the ADA] shall be construed in favor of broad
coverage of individuals under this Act.” Verhoff v. Time Warner Cable, Inc. 299 Fed. Appx.
488, 494 (6th Cir. 2008) (citing Pub. L. No. 110-325, § 4(4)(A)). Under the ADA, an
individual’s disability must be determined on a case-by-case basis. Sebest v. Campbell City
School Dist. Bd. of Educ., 94 Fed. Appx. 320, 326-27 (6th Cir. 2004).
An individual is disabled under the ADA if: (1) he has a physical or mental impairment
that substantially limits one or more of his major life activities; (2) he has a record of such
impairment; or (3) he is regarded as having such an impairment. 42 U.S.C. § 12102(1). Major
life activities include but are not limited to functions such as “caring for oneself, performing
manual tasks, seeing . . . walking, standing . . . learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A). An impairment that “substantially

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limits” one major life activity need not limit other major life activities in order to be consider a
disability. 42 U.S.C. § 12101(4)(c). However, “[i]f [an employee's] condition does not meet one
of these categories even if he was terminated because of some medical condition, he is not
disabled within the meaning of the Act. The ADA is not a general protection for medically
afflicted persons.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008) (citation
omitted).
As applied here, Plaintiff’s alleged depression was first raised at or about the time of his
poor job performance. For the reasons stated earlier, the Court concludes Defendant had more
than ample legitimate reasons to terminate Plaintiff and, thus, Plaintiff’s proof cannot meet the
“but for” causation standard for his ADA claim, namely that but for his depression, he would not
have been terminated. Lewis v. Humbolt Acquisition Corp., Inc., 681 F.3d 312, 321 (6th Cir.
2012) (en banc).
3. Conclusion
For these reasons, the Court concludes that the Defendant’s motion for summary
judgment should be granted.
An appropriate Order is filed herewith.
ENTERED this the

day of November, 2014.

WILLIAM J. HAYNES, JR.,
United States District Judge

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
THOMAS CUMMINS,

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