Houston v. PepsiCo, Inc.

Filing 59

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the Motion for Summary Judgment be GRANTED as to all claims. Signed by Magistrate Judge John S. Bryant on 5/6/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

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

GREGORY L. HOUSTON,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
PEPSICO, INC.,
Defendant.

To:

Case No. 3:14-2050
Judge Campbell/Bryant

The Honorable Todd Campbell, District Judge

REPORT AND RECOMMENDATION
By order entered November 5, 2014 (Docket Entry No. 7), this matter was
referred to the undersigned to hear and determine any pretrial issues and motions and to submit a
report and recommendation for disposition of any motion filed under Fed. R. Civ. P. 12, 15, 56
and 65. Defendant filed a Motion for Summary Judgment on September 18, 2015 (Docket Entry
No. 26). For the reasons given below, the undersigned recommends that Defendant’s Motion for
Summary Judgment be GRANTED.1

I. Procedural History
1

It should be noted that the response brief of the Plaintiff includes a “Facts” section which introduces facts
beyond those which were asserted by Defendant in its Statement of Undisputed Material Facts (Docket Entry No.
28), without an accompanying statement of additional disputed facts as contemplated by Local Rule 56.01(c). The
fact that these new assertions are not highlighted as additional facts supporting the existence of a genuine issue for
trial, and in fact have been individually identified as undisputed by Defendant (Docket Entry No. 37), underscores
that they are improperly introduced in Plaintiff’s narrative brief. Defendant seeks to have these additional facts
stricken. (Docket Entry No. 37 at 1) Inasmuch as none of these additional facts are disputed for purposes of the
instant motion, the undersigned would decline to strike them. However, Plaintiff’s counsel is admonished to abide
by the Local Rules.

On October 31, 2014, Defendant removed this case from the Circuit Court for
Davidson County in Nashville to this Court on diversity grounds, pursuant to 28 U.S.C. §§ 1332
and 1441, noting that Plaintiff’s state court complaint alleged an amount in controversy that
easily exceeded the $75,000.00 jurisdictional minimum (Docket Entry No. 1). Plaintiff’s state
court complaint pled claims against Defendant PepsiCo, Inc. (“PepsiCo”) exclusively under state
law. (Docket Entry No. 1-1 at 4-5). However, in his Amended Complaint (Docket Entry No.
24), Plaintiff solely invokes this Court’s federal question jurisdiction under 28 U.S.C. § 1331,
and raises claims under federal law (a race discrimination claim and a retaliation claim, both in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e), in addition to pendent
state law claims for violations of the Tennessee Human Rights Act, T.C.A. § 4-21-101, which
were among the state law claims asserted in his original complaint.
II. Factual Background
From the record before the Court, it appears that the following facts are
undisputed, except as noted. On March 27, 2012, Defendant PepsiCo hired Plaintiff, a
Caucasian male. PepsiCo’s Nashville, Tennessee facility stores and delivers PepsiCo products to
various customers, including local convenience and big-box stores and restaurants. Upon hire,
Plaintiff mostly worked as a helper on a bay delivery truck. Upon hire, Plaintiff received the
Bay Delivery Driver Role Guide (“Role Guide”), which details the duties of the Bay Delivery
Driver (“drivers”). The Role Guide states that drivers are accountable for merchandising their
accounts according to PepsiCo’s “PREMIER” standards and that “failure to adhere to the Role
Guide may result in discipline up to and including termination.” The PREMIER standards
require drivers to “merchandise” PepsiCo’s products at customers’ accounts after unloading the

2

product from trucks—i.e., stock products in store coolers and shelves, build displays, rotate stock
and make the account look nice. Not all accounts require the same amount of merchandising.
The volume of product PepsiCo drivers deliver varies and may double from a Monday to a
Friday.
In the summer of 2012, Plaintiff became a Bay Delivery Driver with his own
delivery route.2 Bay Delivery Drivers deliver PepsiCo product to convenience stores, gas
stations, and small grocery stores and unload the product from the truck into the account’s
premises. From summer 2012 through summer 2013, Plaintiff frequently delivered to Middle
Tennessee State University (“MTSU”) and various accounts in Murfreesboro. The amount of
product that Plaintiff delivered declined sometimes when MTSU called its order in late, resulting
in the order going out on another truck, or product being left off the truck. When MTSU was on
summer break, PepsiCo assigned Plaintiff other accounts to fill out his route. Plaintiff’s
supervisors included Delivery Supervisor Tony Ricketts (African American) and Delivery
Supervisor John Robinson (African American).
In Fall 2012, Plaintiff was driving with Bay Delivery Driver Chris Williams (who
is African American) and observed him smoke what Plaintiff believed was a marijuana cigarette.
Plaintiff told Sales Coordinator Rick Mitchell (Caucasian) that Williams smoked marijuana in
the truck. Mitchell told Plaintiff he would take care of it. Plaintiff met with Robinson and Sales
Operation Manager Ronnie Eason (Caucasian) the next day he came into work, and Eason asked

2

While Defendant’s Statement of Facts states, and Plaintiff does not dispute, that “Plaintiff became
a Bay Delivery Driver with his own delivery route,” (Plaintiff’s Response to Defendant’s Statement of Facts, 4
(Docket Entry No. 33)) the parties dispute the existence of set territories or routes assigned to drivers. Defendant
claims that drivers do not have a set territory, and that routes change based on fluctuations in order volume.
Plaintiff, on the other hand, claims that he was assigned a set route.

3

Plaintiff to tell him in detail what happened with Williams. Eason took notes of what Plaintiff
said. Eason contacted Human Resources Manager Carleen Cunio (Caucasian) about Plaintiff’s
report. Cunio told Eason that he needed to send a supervisor out to observe Williams. Robinson
observed Williams a few times but did not see him smoke marijuana. The parties disagree
whether Eason and Mitchell took the situation “seriously.”
In February or March 2013, Plaintiff told Cunio that the number of cases he
delivered on his route had declined since he reported Williams for smoking marijuana. At some
point before speaking with Cunio, Plaintiff complained to Robinson that the number of cases he
delivered on his route was down. Robinson told Plaintiff that the number of cases he delivered
was all that was ordered that day. In May 2013, Plaintiff mailed an anonymous letter to several
PepsiCo corporate addresses outlining certain concerns, including that drivers were being
switched back and forth from hourly pay to commission without notification. The letter also
expressed concern that managers were threatening drivers with points and write-ups for minor
infractions and that “employees are made to feel like going to upper management or Human
Resources could cost you pay or cases on your route.” Human Resources Director Tom Smiley
went to PepsiCo’s Nashville facility to address the concerns raised in Plaintiff’s anonymous
letter.
In August 2013, when MTSU came back into session, PepsiCo split up the route
that contained MTSU and assigned the stops to Bay Delivery Drivers Don Spivey (African
American) and Marlin Sims (African American). The parties disagree who decided to split up
Plaintiff’s route and reassign it, and why this decision was made. The Defendant claims that

4

Plaintiff talked to Eason about his route being split up, and that Eason told Plaintiff that he was
not going to pay commissions on a high volume account where drivers just dropped the product
and did not merchandise it. However, Plaintiff claims that testimony was unclear regarding who
decided to split up his route and assign it to Don Spivey and Marlin Sims, and that Ricketts and
Robinson testified that they chose to change Plaintiff’s route to decrease his stops.
After Defendant split up the MTSU route, it assigned Plaintiff to another route.
The parties disagree whether the Plaintiff continued to receive commissions on the accounts he
serviced on his new route. Defendant claims that he did; Plaintiff claims that while the new
route PepsiCo assigned him had the potential to be paid through commissions, there were some
occasions when he was paid through commissions and other times when he was paid hourly.
On September 6, 2013, Plaintiff and a helper made a delivery to St. Andrews
Market, but did not stock the product or merchandise it. Plaintiff told the St. Andrews store
employee that he was a member of “420 Union,” was on strike, and was bringing the product in,
but not putting it up. PepsiCo’s Nashville facility is non-union and no employees were on strike
at the time. Plaintiff claims that he was joking with the St. Andrews employee when he made
these remarks. Plaintiff delivered product to the other stops on his route that day pursuant to the
PREMIER standards. After leaving St. Andrews Market, Plaintiff called Robinson as well as
Ken Harville, PepsiCo’s “presalesman” for the St. Andrews account, and told them that he did
not put the product up on the shelves.
On September 7, 2013, the St. Andrews Market manager called Robinson, upset
about Plaintiff not putting the product in the coolers and on the shelves, and “belligerent” about

5

Plaintiff’s union comments; the manager demanded that someone from Human Resources visit
his store. The St. Andrews Market manager also called Harville, very angry. The manager
complained to Harville that Plaintiff left 80 or 90 cases of product in the middle of the store and
told the store employee that he could not put it up because he was union. Robinson contacted
Cunio about the St. Andrews Market manager’s complaint.
On September 19, 2013, Plaintiff met with Cunio, Ricketts, and Robinson. Cunio
asked Plaintiff about his September 6, 2013 delivery to St. Andrews Market. Plaintiff explained
that he was joking with the St. Andrews employee about being on strike and admitted that he did
not put the product up. During the meeting, Plaintiff complained to Cunio that Ricketts and
Robinson were smiling at each other. Cunio removed Ricketts and Robinson from the room.
Cunio suspended Plaintiff pending her investigation. PepsiCo sent Sales Manager Ryan Cram
and another employee to the St. Andrews store to speak with the store owner and attempt to
convince the owner to readmit Plaintiff to the store. The store owner refused to let Plaintiff back
into the store.
Defendant claims that Cunio and Eason decided to terminate Plaintiff for being
permanently banned from a customer account; Plaintiff does not dispute that this is the proffered
reason for Plaintiff’s termination, but contends that this reason did not actually motivate the
decision and was insufficient to do so.
In deciding to terminate Plaintiff, Cunio took into account the fact that Plaintiff
had misrepresented to the customer that he was in a union and on strike. On September 24,
2013, Cunio and Eason called Plaintiff on the telephone and informed him of his termination.

6

PepsiCo also sent Plaintiff a letter outlining the reasons for his termination. On May 8, 2014,
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission.
PepsiCo terminated former delivery drivers Charles Dodd (African American) on
September 3, 2013 and Kevin Fleming (African American) on April 26, 2013 for being
permanently banned from customer accounts. PepsiCo did not terminate delivery driver Chris
Ledbetter (Caucasian) after a store asked PepsiCo to remove him from its account in July 2013
because the store manager eventually told Cunio that Ledbetter could return to the store and
service the account. In the Summer of 2013, a store manager of one of PepsiCo’s accounts,
Debra Brymer, asked Robinson to remove driver Adonis Foster (African American) from her
account because he did not stock product like he was supposed to. Brymer did not ask Robinson
to contact Human Resources. Robinson left Foster on the account, although the parties dispute
the reason (Plaintiff claims the reason was discrimination; Defendant claims it was due to driver
complaints that this store manager was “nitpicky.”)

III. Conclusions of Law

A. Standard of Review
To prevail on a motion for summary judgment, the moving party must
demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a); Miller v. Calhoun County, 408 F.3d 803,
811–12 (6th Cir. 2005). A “genuine issue of material fact” exists when the proof upon which
that issue turns could induce a reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The burden of establishing the

7

absence of a factual dispute rests with the moving party. Id. at 250 n.4.
In deciding whether summary judgment is appropriate, the court “must look
beyond the pleadings and assess the proof to determine whether there is a genuine need for trial.”
Sowards v. Loudon County, 203 F.3d 426, 431 (6th Cir. 2000), cert. denied, 531 U.S. 875
(2000). In so doing, the district court must “draw all reasonable inferences in favor of the
nonmoving party” in its analysis of the affidavits and other submissions. Sadie v. City of
Cleveland, 718 F.3d 596, 599 (6th Cir. 2013) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).

B. The Federal Title VII Claims
Defendant argues that Plaintiff’s Title VII claims are time-barred, because he did
not initially file a charge with the Tennessee Human Rights Commission (THRC). This
argument is persuasive.
Title VII requires that plaintiffs first exhaust their administrative remedies. See
El-Zabet v. Nissan N. Am., Inc., 211 F. App'x 460, 463 (6th Cir. 2006). The statute provides
that
A charge under this section shall be filed within one hundred and
eighty days after the alleged unlawful employment practice occurred
. . . . except that in a case of an unlawful employment practice with
respect to which the person aggrieved has initially instituted
proceedings with a State or local agency with authority to grant or
seek relief from such practice . . . such charge shall be filed . . .
within three hundred days after the alleged unlawful employment
practice occurred, or within thirty days after receiving notice that the
State or local agency has terminated the proceedings under the State
or local law, whichever is earlier . . . .
42 U.S.C. § 2000e-5(e)(1) (emphasis added).
In El-Zabet, the Sixth Circuit explained that “Title VII requires a party wishing
8

to contest an allegedly discriminatory act to file a charge with the EEOC within 300 days of the
act, if the party ‘initially instituted proceedings with a State or local agency’ qualified to provide
relief, or within 180 days, if the party did not do so.” El-Zabet, 211 F. App'x at 463 (quoting §
2000e-5(e)(1)). The Court went on to find that the 180-day time limit applied, because “nothing
in the record indicate[d] that [the plaintiff] instituted proceedings with a state or local agency,”
although “a state system of administrative remedies qualified to provide relief under Section
2000e-5(e)(1)” did exist. Id.
Likewise, in White v. Metro. Gov't of Nashville & Davidson Cty., No.
3:11-cv-0607, 2013 WL 269042 (M.D. Tenn. Jan. 24, 2013), the Court cited El-Zabet in ruling
that the “default” 180-day limitation applied to a plaintiff with ADA claims “because [the
plaintiff] never utilized the deferral process otherwise available in Tennessee.” 2013 WL
269042, at *5. Mohasco Corp. v. Silver, 447 U.S. 807 (1980), cited by Plaintiff, is not to the
contrary. In Mohasco, the Supreme Court held that while a plaintiff arguably “[u]nder the literal
terms of the statute . . . did not bring himself within the exception to the general 180-day
requirement” because he did not institute any state proceedings prior to writing to the EEOC, the
action of the EEOC itself, in immediately instituting state proceedings on the plaintiff’s behalf
by forwarding his letter to the state agency, would satisfy the requirement of “initially
institut[ing] with a State . . . agency” for purposes of the time limit exception. Id. at 816-17.
The Supreme Court thus did not excuse the plaintiff’s failure to file with the state, but found on
the facts before it that the case fell within the 300-day exception because a state agency filing
had been effectively made on the plaintiff’s behalf. No such effective state filing has been made

9

here.
In the case at bar, Plaintiff was terminated from Pepsico on September 24, 2013.
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission
on May 8, 2014 (226 days later). The record does not reflect (nor does Plaintiff argue) that
Plaintiff filed a complaint with the appropriate state agency (the Tennessee Human Rights
Commission) within 180 days of any of the events which he alleges violate Title VII, or at all.
Thus, in accord with the foregoing precedent, Plaintiff is not entitled to the deferential extension
of the EEOC filing deadline to 300 days. His Title VII claims are therefore time-barred, and
Defendant is entitled to summary judgment as to both.

C. The Tennessee Human Rights Act Claims
As mentioned in the description of this case’s procedural history, supra at 2,
Plaintiff’s Amended Complaint invokes this Court’s federal question jurisdiction only. In his
motion to amend, Plaintiff states that “[t]he purpose of amending the original [state court]
Complaint is to amend, correct and restate Plaintiff’s averment and cause of action against
Defendant[,]” to reflect its federal character. (Docket Entry No. 22 at 1). In light of this
amendment, which also amends the ad damnum clause from the original complaint by not
including any particular sum sought as damages (see Docket Entry No. 24 at 6-7), it appears that
plaintiff’s claims for violations of the Tennessee Human Rights Act fall within this Court’s
supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, inasmuch as they are so closely related
to the federal claims as to form part of the same case or controversy. Defendant fully argues the

10

merits of these state law claims (albeit under the assumption that plaintiff’s Title VII claims are
deemed timely (Docket Entry No. 27 at 8)) by addressing its arguments to Plaintiff’s
“termination claims,” “retaliation claims,” et cetera. Should the Court determine, as
recommended, that all federal claims are time-barred and should be dismissed, the undersigned
nonetheless finds that it is appropriate to retain jurisdiction over the state claims. While there is
a general presumption that dismissal of all federal claims should result in declining to retain
supplemental jurisdiction over pendent state claims, this presumption is weakened where the
dismissal of the touchstone federal claims is not pursuant to motion under Fed. R. Civ. P.
12(b)(1) or (6), but is pursuant to a Rule 56 summary judgment motion. See Musson Theatrical,
Inc. v. Federal Exp. Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996). Moreover, retention of
jurisdiction is indicated by the circumstances of this particular case, which was originally
removed based on diversity jurisdiction, and which still involves parties of diverse citizenship
and an amount in controversy that is not definitively below the jurisdictional minimum. Finally,
the nature of the state law claims (identical in every material respect to the federal claims
asserted here), the character of the governing state law (its stated purpose being to “[p]rovide for
execution within Tennessee of the policies embodied in the federal Civil Rights Acts,” Tenn.
Code Ann. § 4-21-101(a)(1)), and the relationship between the state and federal claims (parallel
tracks to remedies that are similar but not wholly duplicative) all support the exercise of
jurisdiction in this case. See City of Chicago v. Int’l College of Surgeons, 522 U.S. 156, 173
(1997). Accordingly, the following analysis of the merits of plaintiff’s state law claims is
offered.

11

Generally, “THRA claims are analyzed in the same manner as Title VII claims.
As the Tennessee Supreme Court has noted,‘. . . it is clear that the [Tennessee] legislature
intended the THRA to be coextensive with federal law. [Courts], therefore, may look to federal
interpretation of Title VII for guidance in enforcing [Tennessee's] anti-discrimination statute.’”
Williams v. The City of Milan, Tenn., No. 1:08-CV-01235, 2009 WL 989775, at *2 (W.D. Tenn.
Apr. 8, 2009) (internal citation omitted).

Plaintiffs alleging violations of Title VII “may prove [their] claim[s] using either
direct or circumstantial evidence. Where a plaintiff relies on circumstantial evidence, courts
typically apply the three-part burden-shifting framework developed by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981), to determine whether the plaintiff has proffered
sufficient evidence to survive summary judgment.” Jackson v. VHS Detroit Receiving Hosp.,
Inc., 814 F.3d 769, 775 (6th Cir. 2016) (internal citation omitted).
As the Sixth Circuit describes this burden-shifting approach,
a plaintiff must first set forth a prima facie case of
discrimination. The burden then shifts to the employer to
articulate some legitimate, nondiscriminatory reason for its
actions. If the employer carries this burden, the plaintiff must
then prove by a preponderance of the evidence that the
reasons offered by the employer were a pretext for
discrimination. The ultimate burden of persuasion remains at
all times with the plaintiff.
Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008) (quoting
Newman v. Fed. Express Corp., 266 F.3d 401, 405 (6th Cir. 2001)).

12

The elements of the prima facie case are that:
1) [the plaintiff] is a member of a protected class; 2) was
qualified for the job; 3) he suffered an adverse employment
decision; and 4) was replaced by a person outside the
protected class or treated differently than similarly situated
non-protected employees.
Id.
Even within the context of this burden-shifting framework, the Sixth Circuit has
made clear that “the plaintiff's burden at the prima facie stage is not onerous and poses a burden
easily met.” VHS Detroit Receiving Hosp., Inc., 814 F.3d at 776 (internal citations omitted).

Plaintiff’s Prima Facie Case
i)

Protected Class/Discrimination Against the
Majority

In order for a plaintiff who has majority status to show that he was discriminated
against, the first prong of the prima facie case is modified such that he must demonstrate
“background circumstances [to] support the suspicion that the defendant is that unusual
employer who discriminates against the majority.’” Arendale, 519 F.3d at 603 (internal citation
omitted). These background circumstances are shown “by producing evidence that defendant's
unlawful consideration of race in the past ‘justifies the suspicion that incidents of capricious
discrimination against whites because of their race may be likely.’ Such ‘circumstances’ can be
established by proof of internal or external pressure to favor minorities . . . [as well as] the
13

hiring or promoting employee's membership in the same minority race as the employees he or
she was purportedly favoring . . . . Courts also consider the racial composition of the relevant
workforce, management, and decisionmakers.” Atkins v. Denso Mfg. Tenn., No. 3:09-CV-520,
2011 WL 5023392, at *5 (E.D. Tenn. Oct. 20, 2011) (internal citations omitted).
Houston argues that his report of an African-American driver for smoking
marijuana on the job was “completely discounted”; that the driver was not drug-tested or
disciplined, but given a driving award, only to be terminated later for failing a random drug test;3
and that these facts show “potential internal pressure to favor minorities.” (Plaintiff’s Response
in Opposition to Defendant’s Motion for Summary Judgment (“Plaintiff’s Response”), Docket
Entry No. 32 at 13). However, the record evidence does not support the claim that PepsiCo
“completely discounted” Houston’s report. Rather, the deposition testimony along with
Plaintiff’s Response to Defendant’s Statement of Facts show that PepsiCo made at least some
investigation, and that Plaintiff felt that at least one person took his report seriously.
Houston also argues that because the two decision makers whom he alleges
subjected him to disparate treatment and retaliated against him (Robinson and Ricketts) are both
African-American, this constitutes a “building block to establish that Mr. Houston was being
discriminated against by them because of his race.” Plaintiff’s Response, 12-13. While the
supervisors who later fired him were white, Plaintiff alleges that they were involved in the
3

PepsiCo in its Response to Plaintiff’s Statement of Facts does not dispute that the driver was later
terminated for failing a random drug test. (Defendant’s Response to Plaintiff’s Statement of Facts (“Response to
Facts”), Docket Entry No. 37 at 7). Further, while in its Response to Facts Defendant asserts that the Court should
not consider the fact that the driver did not receive a drug test in response to Plaintiff’s report because that fact is not
supported by the record evidence cited by Plaintiff, id., Defendant makes clear that for purposes of its summary
judgment motion, it does not dispute any of the facts put forward by Plaintiff. Id. at 2; see also Docket Entry No. 36
at 1.

14

allegedly discriminatory investigation of the marijuana incident. He makes similar arguments
concerning the decision to remove certain stops from his route (or “split up” the route, though
the parties dispute whether Houston in fact had a route and whether that route was split up),
alleging that the record is unclear, but contains some evidence supporting the conclusion that
Robinson and Ricketts made that decision.
PepsiCo argues that because the two PepsiCo employees who made the decision
to terminate Plaintiff’s employment are both Caucasian, this fact “bel[ies] any inference of
discrimination against Plaintiff because of his white race.” (Defendant’s Memorandum in
Support of its Motion for Summary Judgment (“Defendant’s Memorandum”) Docket Entry No.
27 at 9). In support of its argument, PepsiCo cites two cases, Ford v. Chad Youth Enhancement
Ctr., No. 3:08-cv-635, 2010 WL 1177334 (M.D. Tenn. Mar. 24, 2010), and Johnson v. Metro.
Gov't of Nashville & Davidson Cty., No. 3:07-0979, 2010 WL 3342211 (M.D. Tenn. Aug. 24,
2010). However, neither case, particularly when read in the light of Oncale v. Sundowner
Offshore Services, Inc., 523 U.S. 75 (1998), supports the proposition that because the
supervisors who fired Houston are white, it is automatically unreasonable to draw an inference
that he was discriminated against because of his race.
In Ford, this Court distinguished the facts of the case before it from earlier cases
(one case in which the supervisors at issue were African American, and another in which all of
the decision makers in the claim were African American), noting that in the case before it, a
Hispanic employee oversaw hiring and shift assignments, and the decision makers in
management included both Caucasian and African American members. Ford, 2010 WL

15

1177334, at *10. In so doing, the Court did not state a conclusive rule that the presence of
Caucasian decision makers will preclude a Caucasian plaintiff from establishing the first prong
of his prima facie case. The facts in Ford are distinguishable from the present facts, because the
presence of members of three races among the decision makers constitutes stronger evidence
against any suspicion that the employer discriminates against anyone - minority or majority - on
the basis of race. Here, by contrast, the decision makers are either all African American, or half
of them are (depending on which decision is examined).
Johnson presents an even more distinct set of facts. In Johnson, the white male
plaintiffs could not show background circumstances supporting a suspicion of discrimination
against the majority, where the sole decision maker was himself a white male who had promoted
mostly white male officers during the year the plaintiffs claimed he discriminated against them.
Johnson, 2010 WL 3342211, at *15. Based on this factual distinction, the court found that
precedent involving an all-African American set of decision makers was inapplicable. Id.
Johnson is not relevant to the issues at hand, because that case involved a single decision maker
of the same race as the Caucasian plaintiff, not the presence of both Caucasian and African
American individuals among a group of decision makers.
Furthermore, in Oncale, the Supreme Court explained that it has “rejected any
conclusive presumption that an employer will not discriminate against members of his own
race.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (citing Castaneda v.
Partida, 430 U.S. 482, 499 (1977)) (emphasis added). The Court explained that “‘[b]ecause of
the many facets of human motivation, it would be unwise to presume as a matter of law that

16

human beings of one definable group will not discriminate against other members of their
group.’” Id. (quoting Castaneda).
Viewed in the light most favorable to the Plaintiff, and bearing in mind the
guiding principle that Plaintiff’s burden in proving his prima facie case is “not onerous,” the
evidence could permit a reasonable jury to find that PepsiCo is that rare employer who
discriminates against the majority, making Houston a member of a protected class. VHS Detroit
Receiving Hosp., Inc., 814 F.3d at 776.
ii)

Qualified for the Job

The record reflects no dispute between the parties that Houston was qualified for
the job he held at PepsiCo, and neither party briefed this issue. The undersigned therefore
concludes it is an undisputed fact that Houston was so qualified.
iii)

Adverse Employment Decision
1. Termination

The record reflects no dispute between the parties that Houston’s termination
constituted an adverse employment action, and neither party briefed this issue. The undersigned
therefore concludes that it is an undisputed fact that Houston suffered an adverse employment
decision when PepsiCo fired him.

17

2. Other Prior Adverse Employment Actions
Houston claims that changes in his “route distribution and case count” constituted
additional adverse employment actions. Plaintiff’s Response, p. 15. He claims that PepsiCo
changed his route (as noted, a fact that the parties vigorously dispute), which led to Houston
delivering less Pepsi product, and thus to being paid less. However, as PepsiCo points out,
Houston failed to point to “any record evidence showing that the amount of product Plaintiff
delivered or his pay was reduced in any way.” Defendant’s Memorandum, 13. Notably, while
record evidence (Plaintiff’s own deposition testimony) does exist to show that the amount of
product that Plaintiff delivered dropped dramatically, no evidence exists to show that Plaintiff’s
pay actually dropped. Plaintiff points to deposition testimony that “[I]f you have a lot of cases,
it’s possible that you could earn more money than if somebody had a lower number of cases.”
Plaintiff’s Response, 16; Deposition of John Robinson 55:1-6 (Docket Entry No. 29 Ex. 4).
However, the most that this statement establishes is that it is possible that Plaintiff suffered a loss
of pay. Plaintiff provides no other evidence to support a finding that he suffered an adverse
employment action as a result of his route allegedly being broken up and his case count
consequently reduced.
Neither does Plaintiff’s argument that “no evidence established whether his
commissions were the same” in any way establish an adverse employment action. Plaintiff’s
Response, 16. Plaintiff’s job under the applicable burden-shifting framework is to establish
affirmatively a prima facie case. While this burden is “not onerous,” see Burdine, 450 U.S. at
253, Plaintiff’s responsibility is not fulfilled by explaining that there is no evidence either way

18

about a matter, particularly when the matter in question is something about which Plaintiff
should have personal knowledge.
The undersigned therefore concludes that Houston has failed to establish that
these actions - as distinct from the termination action - were adverse employment actions. Thus,
Plaintiff has failed to establish a prima facie case of discrimination as to these actions, and the
Defendant is entitled to Summary Judgment as to Plaintiff’s THRA claims based on them. For
that reason, the undersigned does not reach the issues of whether similarly situated employees
were treated differently in regard to these actions, or whether the Defendant’s proffered reason
for any such treatment was pretextual.

iv)

Similarly Situated Employees Treated
Differently

As the Sixth Circuit has explained, in order to find “two individuals to be
similarly-situated in a disciplinary context. . . . the individuals must have dealt with the same
supervisor, they must have been subject to the same standards, and they must have engaged in
the same conduct without such differentiating or mitigating circumstances which would
distinguish their conduct or the employer's treatment of them for that conduct.” Conti v.
Universal Enterprises, Inc., 50 F. App'x 690, 699 (6th Cir. Sept. 20, 2002).
The Plaintiff has not presented evidence to enable a reasonable jury to find that
Houston and his proffered comparator (Adonis Foster) were similarly situated, because he has
19

offered no evidence whatsoever that they dealt with the same supervisor and were subject to the
same standards. Plaintiff’s Response does not address the latter issue at all, and as to the
former, merely states that “the record does not establish whether these individuals were subject
to the same decision-makers for their termination or their day-to-day direct supervisors.
Therefore, an issue of fact exists and the inquiry must not end there.” Plaintiff’s Response, 14.
This statement again misapprehends both the nature of the material, triable issue
which Plaintiff must demonstrate, and the Plaintiff’s responsibility under the burden-shifting
framework. The argument that a genuine issue of material fact exists, and summary judgment
for the Defendant must be defeated, because there is no evidence either way (not even a scintilla)
must fail under well-established procedural law. Anderson, 477 U.S. 242, 252 (“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”). Even if this were
not so, and as explained above, the Title VII burden-shifting framework places the initial burden
on the Plaintiff to prove affirmatively his prima facie case, and pointing to a lack of evidence
does not advance Plaintiff’s prima facie case whatsoever.
Because of this, the undersigned does not reach the question of whether Houston
and Foster engaged in the same conduct without differentiating or mitigating circumstances to
distinguish that conduct or the employer’s treatment of them for it. The undersigned concludes
that Plaintiff has not met his burden of showing a prima facie case of discrimination as to any of
the adverse employment actions alleged, and the Defendant is entitled to summary judgment on
Plaintiff’s THRA termination claim.

20

The THRA Retaliation Claim
The elements of the prima facie case for a retaliation claim are that
(1) [the plaintiff] engaged in activity protected under [the
statute]; (2) the defendant knew that [he] engaged in
protected activity; (3) the defendant subsequently took an
adverse, retaliatory action against the plaintiff, or the plaintiff
was subjected to severe or pervasive retaliatory harassment
by a supervisor; and (4) the protected activity and the adverse
action were causally connected.
DeJesus v. Geren, No. 3:08CV0043, 2008 WL 2558009, at *17 (M.D. Tenn. June
23, 2008) (internal citations omitted).
Importantly, “[t]he antiretaliation provision protects an individual not from all
retaliation, but from retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 67 (2006). Thus, “a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id. at 68 (quotations omitted). Mere personality conflicts at work that generate
“antipathy” and “‘snubbing’ by supervisors and co-workers” do not qualify as materially adverse
action which might dissuade a reasonable worker from making a charge of discrimination. Id.
Under normal circumstances, neither will “petty slights, minor annoyances, and simple lack of
good manners.” Id.
i) Protected Activity
The Sixth Circuit is clear that the statutorily protected activity under Title VII
(and thus, the THRA) includes complaints to human resources personnel as well as “complaints
21

to management and less formal protests of discriminatory employment practices.” Laster v. City
of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014), reh'g denied (Apr. 2, 2014); see also Trujillo
v. Henniges Auto. Sealing Sys. N. Am., Inc., 495 Fed.Appx. 651, 655 (6th Cir. Aug. 20, 2012)
(“We have repeatedly held that complaints to human resources personnel regarding potential
violations of Title VII constitute protected activity for purposes of establishing a prima facie case
of retaliation.”). On the other hand, there does not appear to be any support whatsoever (and
Plaintiff does not provide any) for the proposition that reporting another employee’s on-the-job
drug use constitutes a protected act under either federal or state law.
Plaintiff cites to record evidence that he repeatedly complained to PepsiCo’s
Human Resources department, to his direct supervisors, and by anonymous letter to the
company, that he felt he was subject to discriminatory treatment. Plaintiff’s Response, 18. The
undersigned concludes that Houston’s complaints constituted statutorily protected activity under
the THRA, but that his report regarding his co-worker’s alleged marijuana use did not.
ii) Employer Awareness of Protected Activity
Because Houston communicated his complaints of discrimination directly with
Human Resources personnel and sent a letter directly to the company, PepsiCo was aware of
Houston’s protected activity.

22

iii) Adverse Employment Action/Severe or Pervasive
Harassment by a Supervisor
In his Response, Plaintiff claims that the following actions occurred, constituting
adverse employment actions which a reasonable jury could conclude would dissuade a
reasonable worker from making charges of discrimination:
•

“[Plaintiff’s] supervisor Tony Ricketts told him not to call Ricketts on his
personal cell phone only after [Plaintiff] reported the marijuana use of an AfricanAmerican driver. (Pl. Dep. 135:19–138:19.)”

•

“Ricketts swore at Plaintiff because Plaintiff did not return a key to pallet jacks
despite the fact that Eason gave the key to [Plaintiff]. (Pl. Dep. 109:2–111:16.)”

•

“In February 2013, Plaintiff’s supervisor John Robinson assigned Plaintiff a point
under the attendance policy when Plaintiff called in sick. (Pl. Dep.
127:14–129:13.)”

•

“Ricketts stood by the time clock frequently when Plaintiff walked in for his shift
and told him that he would have assessed Plaintiff a point if Plaintiff had been
late. (Pl. Dep. 128:13–129:5.)”

•

“Ricketts asked Delivery Driver L’Cretia Walker to ride with Plaintiff and report
back to him everything that happened. (Pl. Dep. 127:14–129:13.)”

•

“Robinson and Ricketts did not provide Plaintiff a helper and made him drive
when he was out of DOT hours. (Pl. Dep. 140:10–144:8)”

•

“Eason, Robinson, and Ricketts hung up on Plaintiff numerous times when he
was on his route or did not answer his phone calls. (Pl. Dep. 149:17–150:18.)”
These actions, to the extent they were improper, reflect the type of “petty slights,

minor annoyances, and simple lack of good manners” which - however unseemly - do not
constitute materially adverse employment action or severe and pervasive harassment. Burlington
23

N. & Santa Fe Ry. Co. 548 U.S. at 68. The undersigned further finds that these actions do not
qualify as “severe or pervasive retaliatory harassment by a supervisor,” although Plaintiff did not
explicitly argue that they did. Accordingly, Plaintiff’s THRA retaliation claim must fail for lack
of sufficient harm to him.
iv) Causal connection
Even if Houston did suffer an adverse employment action or severe and pervasive
harassment by a supervisor after engaging in statutorily protected activity, there is no evidence
of a causal connection between the two.
First, the only evidence that Plaintiff offers of a causal connection is the temporal
proximity between his allegedly protected activity and Defendant’s allegedly retaliatory action.
However, there is insufficient proximity (nine or ten months, depending on which action is
examined) to infer causation. Standing alone and absent some further showing, this proximity
does not suffice to prove causation, as “[t]he Sixth Circuit has adhered to the rule that an interval
of more than six months between the adverse action and the protected activity will not, by itself,
establish a causal connection.” Evans v. Prospect Airport Servs., No. 3:05-0368, 2007 WL
509078, at *5 (M.D. Tenn. Feb. 13, 2007) (citing Lentz v. City of Cleveland, 410 F. Supp. 2d
673, 691 (N.D. Ohio 2006) ("anything over six months is generally insufficient, standing alone,
to establish a causal connection")); see also Sanchez v. Caldera, 36 Fed. Appx. 844, 846 (6th Cir.
June 11, 2002) (less than six months generally required to infer causation).
Second, as PepsiCo points out, there can be no causal relationship between
Plaintiff’s protected activity and the alleged retaliatory action, because Plaintiff’s own testimony
24

ties these actions to the marijuana reporting incident, not to his complaints of discrimination.
Defendant’s Memorandum, 12.
For these reasons, even assuming for the sake of argument that Plaintiff suffered
adverse action in the form of the above-enumerated incidents, there is no evidence which would
permit a reasonable jury to find causation between any such harassment and his reports of
discrimination.
D. No Hostile Work Environment Claim
No hostile work environment claim is addressed, because the Plaintiff specifically
disavows any such claim. Plaintiff’s Response, 2 n.1.
IV. Recommendation
In light of the foregoing, the Magistrate Judge recommends that the Motion for
Summary Judgment be GRANTED as to all claims.
Any party has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to it with the District Court. Any party
opposing said objections shall have fourteen (14) days from receipt of any objections filed in
which to file any responses to said objections. Failure to file specific objections within fourteen
(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 (1985); Cowherd v. Million, 380 F.3d
909, 912 (6th Cir. 2004)(en banc).

ENTERED this 6th day of May, 2016.
25

s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

26