Callender v. Tyson Fresh Meats, Inc.

Filing 72

MEMORANDUM. Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/26/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES R. CALLENDER, JR.,
Plaintiff,
v.
TYSON FRESH MEATS, INC.,
Defendant.

)
)
)
)
)
)
)
)
)

No. 3:15-cv-o0409
CHIEF JUDGE CRENSHAW

MEMORANDUM
Pending before the Court is Tyson Fresh Meats, Inc.’s (“Tysdon”) Motion for Summary
Judgment (Doc. No. 51), to which James R. Callender Jr. has responded in opposition (Doc. No. 58)
and Tyson has replied (Doc. Nos. 65, 71). For the reason that follow, the Motion will be granted in
part and denied in part.
I. Factual Background1
After working for three years as a Processing Supervisor at Tyson’s Carthage, Texas plant,
Callender applied for an open position at Tyson’s Goodlettsville, Tennessee plant. (SOF ¶¶ 1-3).
He was interviewed, and his transfer was approved by Gary Denton, the Goodlettsville’s Complex
Human Resources Manager, and by Doug Griffin, the Operations Manager of that facility. (Id. ¶ 4).
Callender started working at the Goodlettsville plant on December 13, 2009 as a Production
Supervisor on the B-Shift in the Beef Department. In November 2012, he transferred to an open

1

The following facts are drawn from Tyson’s Statement of Undisputed Material Facts (Doc. No. 53)
and Callender’s responses thereto (Doc. No. 70) (collectively “SOF”). The Court omits many of the facts that
are contained in those filings because Callender has abandoned both his age and race discrimination claims.
Furthermore, some of the facts are unnecessary for background purposes, but are useful in the legal discussion
that follows and are discussed in that section.

1

Production Supervisor position in the Beef Department on A-Shift and started reporting to A-Shift
General Supervisor Ken Jenkins. Jenkins, in turn, reported to Griffin. (Id. ¶ 21, 23).
In June 2013, Griffin supervised the A-Shift Beef Department while Jenkins was on vacation.
On June 20, 2013, Griffin issued Callender a written warning after he allegedly failed to follow his
directions for three consecutive days. (Id. ¶ 25).2 Griffin met with Callender on June 20, 2013 to
discuss the written warning, which stated: “[Callender] is receiving a written warning for failure to
follow directions. Reed will also be placed on an action plan.”

When Jenkins returned from

vacation, Griffin told him about the written warning and instructed Jenkins to prepare a Performance
Improvement Plan or PIP. (Id. ¶¶ 27, 28).
The PIP from Jenkins covered three performance deficiencies: (1) Management and
Communication Skills, (2) Efficiencies, and (3) Yields. With respect to “Management and
Communication Skills,” Tyson expected Callender to follow management’s instructions, improve
his communication with subordinates, and ensure that his team was implementing the processes
required to achieve production goals. As for “Efficiencies,” Tyson expected Callender to run a
minimum of 104% efficient on all primals3 on his production line. Finally, with regard to “Yields,”
Callender was expected to monitor his yields and identify which yield category he was not
achieving. (Id. ¶¶ 31-34).
Callender does not dispute the existence of the PIP, or that he signed it on July 8, 2013. (Id.

2

In his deposition, Callender did not dispute that these events occurred. However, in an Affidavit
filed with his response to Defendant’s Statement of facts, Plaintiff asserts that he “did follow directions,
however, given the language barrier, the fact it was during a very busy time of year, the new process which
was being implemented by Griffin was not easy to implement overnight and Griffin was just impatient with
how long it was taking Callender to accomplish the new method.” (Doc. No. 60, Callender Aff. ¶ 12).
3

“Primal” refers to a particular muscle, like the chuck tender that are cut into products (such as a
steak) on the production line. Each line runs a particular set of primals. (Doc No. 52 at 5 n.1).

2

¶ 35). Nor does he dispute knowing that his failure to improve and achieve the goals outlined in the
PIP would result in discipline, up to and including termination. (Id. ¶¶35, 36). He claims, however,
that the “[i]ntent of the Action Plan was to harass plaintiff and retaliate against him for complaining
about Ken Jenkins.” (Id. ¶ 34). In this regard, Callender asserts that, after meeting with Jenkins on
July 1, 2013 to discuss the PIP, he refused to sign it and then took it to Denton and complained that
Jenkins was holding him to a higher standard than other Production Supervisors because of his race
and age. Callender also claims that, after meeting with Denton, he was called to a meeting with
Griffin, Jenkins and Denton and was essentially told he “needed to get on board with the Action Plan
or be fired.” (Doc. No. 60, Callender Aff. ¶ 16). It was then that Callender signed the PIP, and
Jenkins changed the date from July 1 to July 8. Callender also claims that once Jenkins learned he
had complained,4 Jenkins scoring of his performance was “way out of line.” (Id. ¶¶ 38, 39).
Callender and Jenkins met twice to discuss Callender’s progress, and on August 8, 2013, they
met a third time to review the final results. Jenkins determined that Callender had achieved only 32.5
percent of the goals listed in his PIP, and Jenkins had documented 10 occurrences of Callender’s
alleged failure to follow or give instructions.
Callender was terminated from employment on August 9, 2013. He filed suit in this Court
on April 10, 2015, alleging race discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq.
and the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101 et seq.; age
discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §

4

Plaintiff admitted in his deposition that he does not know if Denton ever discussed his complaint
with Jenkins; Jenkins testified that he was unaware of any complaint until after Callender was terminated;
and Denton testified that he never told Jenkins that Callender made any type of discrimination complaint
about him. (Id. ¶¶ 40-42).

3

621 et seq. and the THRA; and retaliation in violation of Title VII and the THRA. Tyson moves for
summary judgment on all claims.
II. Standard of Review
The standards governing summary judgment have been restated on countless occasions and
are well known. It suffices to note: (1) summary judgment is only appropriate where there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law, Fed.
R. Civ. P. 56(a); (2) the facts and inferences must be construed in favor of the nonmoving party Van
Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 268 (6th Cir. 2007); (3) the Court does not
weigh the evidence, or judge the credibility of witnesses when ruling on the motion, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); and (4) the mere existence of a scintilla of evidence
in support of the nonmoving party’s position is insufficient to survive summary judgment, Rodgers
v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).
III. Legal Analysis
A. Race and Age Discrimination
In response to Tyson’s Motion for Summary Judgment, Callender asserts that, while his
“Complaint also contained a cause of action for discrimination . . . at this stage of the proceedings,
[he] has elected not to respond to Defendant’s Motion for Summary Judgment in this regard.” (Doc.
No. 59 at 2 n.2). Callender, therefore, has abandoned his claims for age and race discrimination and
summary judgment will be granted on those claims. See Clark v. City of Dublin, 178 Fed. App’x
522, 524–25 (6th Cir. 2006) (finding district court did not err when granting summary judgment on
claims that were not properly responded to); Conner v. Hardee’s Food Sys., Inc., 65 Fed. App’x 19
(6th Cir. 2003) (finding plaintiffs had abandoned their claim “[b]ecause [they] failed to brief the issue

4

before the district court”).
B. Retaliation
Section 704(a) of Title VII makes it “an unlawful employment practice of an employer to
discriminate against any of his employees or applicants for employment . . . because he has opposed
any practice made an unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing
under this subchapter.” 42 U.S.C. § 2000e-3(a). Similarly, the THRA makes it “a discriminatory
practice” for an employer to “[r]etaliate or discriminate in any manner against a person because such
person has opposed a practice declared discriminatory by [the THRA] or because such person has
made a charge, filed a complaint, testified, assisted or participated in any manner in any
investigation, proceeding or hearing under [the THRA].” Tenn. Code Ann. § 4-21-301(a)(1).
“Retaliation claims under the THRA follow federal law,” Wade v. Automation Pers. Servs., Inc., 612
F. App’x 291, 300 (6th Cir. 2015), and, therefore, “a retaliation claim under both statutes follows the
same analysis,” Arendale v. City of Memphis, 519 F.3d 587, 606 (6th Cir. 2008); see Phillips v.
Interstate Hotels Corp., 974 S.W.2d 680, 683 (Tenn. 1998) (Tennessee Supreme Court observing
that, “[a]lthough the language differs slightly, it is clear that the legislature intended the THRA to
be coextensive with federal law.”).
Where, as here, a plaintiff presents no direct evidence of discrimination or retaliation, his
claims are analyzed under the familiar McDonnell Douglas/Burdine5 burden-shifting framework.
“To establish a prima facie case of retaliation, [a plaintiff] must show ‘(1) that [he] engaged in a

5

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248 (1981).

5

protected activity; (2) that the defendant had knowledge of [his] protected conduct; (3) that the
defendant took an adverse employment action towards [him]; and (4) that there was a causal
connection between the protected activity and the adverse employment action.’” Mickey v. Zeidler
Tool & Die Co., 516 F.3d 516, 523 (6th Cir. 2008) (brackets in original) (quoting Weigel v. Baptist
Hosp. of E. Tenn., 302 F.3d 367, 381 (6th Cir. 2002)). “If the plaintiff satisfies [his] prima facie
showing, the burden shifts to the defendant to offer evidence of a legitimate, non-retaliatory reason
for the adverse employment action.” Id. “If the defendant succeeds, the burden shifts back to the
plaintiff to show that the defendants proffered reason is a pretext for unlawful retaliation.” Id.;
accord E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1066 (6th Cir. 2015).
Tyson argues that summary judgment is warranted for two reasons. First, Callender cannot
establish a causal connection for purposes of his prima facie case and, second, he cannot show that
the reason for his termination was a pretext for retaliation. The Court considers the issues in turn.
1. Causal Connection
“Title VII retaliation claims must be proved according to traditional principles of but-for
causation[.]” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). Recently, the
Tennessee Court of Appeals opined “that the Tennessee Supreme Court would adopt the reasoning
of Nassar” and “h[e]ld that a plaintiff making a retaliation claim under the THRA ‘must establish that
his or her protected activity was a but-for cause of the alleged adverse action by the employer.’”
Goree v. United Parcel Serv., Inc., 490 S.W.3d 413, 440 (Tenn. Ct. App. 2015) (quoting Nassar, 133
S.Ct. at 2534).
Tyson argues that Callender’s “but for” retaliation claim fails at the outset because, in his
deposition, Callender testified that his termination may have been the result of several things. More

6

specifically, Tyson points to the following exchanges between counsel and Callender:
Q. Mr. Callender, why do you believe you were terminated from Tyson?
A. Because I complained about treatment I was receiving from Ken Jenkins, because
I made the call to the 800 number.
Q. Any other reasons you can think of?
A. Ken didn’t like me.
*

*

*

Q. Is there anything else that you can recall?
A. Regarding?
Q. As the basis for your retaliation claim?
A. Possibly the call to the 800 number. That didn’t sit well with them. So, like I said,
from the get-go, Ken had it out for me. And I believe because of -- it started out, I
called the 800 number. That’s how I got on A shift. He didn’t want me on A shift;
he wanted his buddy Thomas Barton to come back to A shift who had been out on
an injury.
(Pl. Dep. at 165, 264-65).6 Tyson insists that these “admissions preclude a finding of ‘but-for’
causation” and his “testimony that he was terminated for reasons other than his alleged
discrimination complaint is dispositive of his retaliation claim.” (Doc. No. 65 at 2-3).
Plaintiff’s so-called “admissions” may ultimately serve as the death-knell for his retaliation
claim, but they alone are not fatal. The question is why Callender was terminated, not why he
believes he was terminated. See Tillis v. Sheriff of Indian River Cty., 603 F. App’x 851, 853 (11th
Cir. 2015) (citation omitted) (noting that the inquiry “centers on the defendant’s beliefs, not the

6

The call to the 800 number was not protected activity, but rather was a complaint about how Tyson
intended to change its practice with regard to seniority and shift changes. Callender conceded in his
deposition that this call related only to his disagreement with the proposed changes and had nothing to do
with his race or age. (Doc. No. 53-1, Callendar Depo. at 60).

7

employee’s beliefs or ‘reality as it exists outside of the decision maker’s head.’”); Moore v. City of
Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006) (citation omitted) (“The ultimate question in any
retaliation case is an intent to retaliate vel non.”).
Callender’s deposition testimony aside, Tyson argues that the only possible basis for
Callender to show a causal connection is the nearness in time between his complaint to Denton and
his termination. Citing a couple of district court decisions, Tyson sings the familiar song that
temporal proximity alone is insufficient to establish but-for causation.
Recently, the Sixth Circuit observed that “[i]n some cases temporal proximity alone may be
sufficient.” Savage v. Fed. Express Corp., 856 F.3d 440, 448 (6th Cir. 2017).7 “Where the adverse
employment action ‘occurs very close in time after an employer learns of a protected activity, such
temporal proximity between the events is significant enough to constitute evidence of a causal
connection for the purposes of satisfying a prima facie case of retaliation.’” Id. (quoting Mickey v.
Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008)). The Sixth went on to observe that while
it had “not considered any specific ceiling on the period of time that a court will consider sufficient
to show temporal proximity,” it had “found that a time period of a month or more may establish
temporal proximity.” Id. (citing Dye v. Office of the Racing Comm’n, 702 F.3d 286, 306 (6th Cir.
2012) (finding that two months sufficient to show a causal connection); Singfield v. Akron Metro.
Housing Auth., 389 F.3d 555, 563 (6th Cir. 2004) (stating that three months was “significant enough
to constitute sufficient evidence of a causal connection”). The Sixth Circuit in Savage found that a
delay of 33 days between protected activity and a suspension, and a 41 day period between the

7

While Savage involved a claim under Uniformed Services Employment and Reemployment Rights
Act, 38 U.S.C. 431 et seq., the Sixth Circuit noted that “the same legal standard as in other retaliation cases”
applied. Id.

8

activity and termination “raise[d] an inference that the adverse action was motivated by [plaintiff’s]
protected activity.” Id. at 499.
Here, there was a 38-day gap between the time Callender spoke to Denton and his
termination. The Court finds this sufficient to establish causation for purposes of Callender’s prima
facie case, particularly since “‘[t]he burden of establishing a prima facie case in a retaliation action
is not onerous, but one easily met.’” Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013) (quoting
Mickey, 516 F.3d at 523).
3. Proffered Reason and Pretext
Tyson claims Callender was fired because he did not comply with the terms of the PIP. This
is a legitimate non-retaliatory reason for termination. Hussain v. Highgate Hotels, Inc., 126 F. App’x
256, 265 (6th Cir. 2005); Jenkins v. Electrolux Home Prod., Inc., 2016 WL 6875970, at *7 (M.D.
Tenn. Nov. 22, 2016).
Because Tyson has proffered a legitimate non-retaliatory reason for its employment decision,
the burden falls on Callender to produce evidence from which a reasonable jury could conclude that
Tyson’s stated reason is a pretext for retaliation. Callender can do so by “showing that the reason
(1) had no basis in fact, (2) did not actually motivate the challenged conduct, or (3) is insufficient
to explain the challenged conduct.” Upshaw v. Ford, 576 F.3d 576, 585 (6th Cir. 2009). “The
plaintiff must produce sufficient evidence from which the jury could reasonably reject [the
defendant’s] explanation and infer that the defendant intentionally [retaliated] against him.” Id.
The closeness in time between the complaint and Callender’s termination could be
meaningful but, “[u]nlike its role in establishing a prima facie case, ‘the law in this circuit is clear
that temporal proximity cannot be the sole basis for finding pretext.’” Seeger v. Cincinnati Bell Tel.

9

Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012) (citing Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th
Cir.2012)). Still, “‘suspicious timing is a strong indicator of pretext when accompanied by some
other, independent evidence.’” Id. (quoting Bell v. Prefix, Inc., 321 Fed. App’x 423, 431 (6th
Cir.2009)). Callender takes a shotgun approach in his efforts to show pretext, but many of his
arguments fail because he neglects to consider the timeline leading up to his termination. For
example, he argues that in June 2013, just a couple of months before his termination, he received a
satisfactory review and a raise, and Jenkins did not see a need for a PIP when he went on vacation
later that month. This may well be true, but it hardly shows retaliation because it is undisputed that
Callender did not complain about discrimination until after the decision to place him on a PIP was
made. Similarly, Callender argues that the PIP violated Tyson’s Management Disciplinary Protocols
because it was prepared by Jenkins and not by Callender. However, no matter who prepared it, that
was done before Callender complained about race and age discrimination. Likewise, Callender
asserts that the PIP set “expectations” that were “not consistent with Defendant’s standards of
judging a production supervisor[’]s performance” and that the “arbitrary standard” requiring him to
“run a minimum of 104% efficient on all primal areas . . . has no basis in reality[.]” (Doc. No. 15 at
15). Maybe so, but giving Callender a herculean task could not be retaliatory when it was set before
he made his complaint.
The viability of Callender’s beef against Tyson necessarily hinges on what happened once
the PIP was put into place because it was only then that he complained. And, it is here, that the
Court finds that he has presented sufficient evidence to call into question the proffered reason for his
termination.
In this regard, the Court need not delve into the nuances of how the lines are run for specific

10

primals, or what was expected with respect to those lines as Callender suggests. The heart of the
dispute turns on credibility and more specifically that of Callender and Jenkins.
Callender complained to Denton that Jenkins was holding him to a higher standard because
of his race and age, yet Jenkins is the one who was tasked with grading Callender’s performance.
This is a logical choice (but not a HR best practice) given that Jenkins was Callender’s supervisor.
It is also potentially problematic because he is the one who was accused of discrimination. While
Jenkins claims not to have known about the complaint until after the fact (something both Griffin and
Denton appear to confirm), even without judging credibility, a jury could find this assertion suspect.
Between the time the PIP was first presented on July 1, 2013 and the time it was signed on July 8,
2013, all four met to discuss the PIP. Such a meeting would likely have not been necessary but for
the fact that Callender refused to sign the PIP. This raises two questions; why did Callender refuse
to sign the PIP?, and, more importantly, why did Jenkins not ask either Griffin or Denton for the
reason that Callender chose not to sign the PIP? When the facts are construed in Callender’s favor
as they must be for present purposes, a reasonable jury could conclude that Jenkins both asked and
was told why.
Assuming Jenkins was actually aware of the discrimination complaint, a reasonable jury
could also conclude that he skewed the scoring of Callender’s performance in retaliation for the
complaint. This is because the evaluation was not entirely objective.
For example, Callender’s performance in relation to whizard operators8 was found to be
unacceptable on July 13 and 27, 2013, and his efforts “to address product styling issue such as tag

8

Whizard operators trim meat for slicing. (Doc. No. 60, Callender Aff. ¶9).

11

ends and hangovers” were found to be unacceptable on July 13 and August 3, 2013. (Doc. No. 54-1,
Callender Dep. Ex. 20). However, under the PIP, Callender was required to spend “20 min[utes] per
period working with whizard operators” and “30 min[utes] per period working with stylers.” (Id.)
It is unclear how Jenkins reached his conclusion that Callender did not fulfill those requirements
because in his deposition he testified that he observed Callender “at least” three to four times a day
for ten minutes at a time, (Doc. No. 54-2 Jenkins Dep. at 134), leaving many hours in the day for
Callender to spend 20 minutes working the whizard operators and 30 minutes working with the
stylers. Thus, while Jenkins wrote on the PIP that he “personally never saw [Callender] working
with his trimmers,” (Doc. No. 54-1 at 98), this does not mean that Callender did not comply with this
requirement of the PIP.
Likewise, it is impossible to tell, unless the Court accepts Jenkins’ say-so, whether “no
direction [was] given for trim and carne” on July 13, 2013, or whether Callender “[d]id not give clear
direction on Aldi Eye Rounds trays on August 3, 2013” as Jenkins claims. (Doc.54-1, Callender
Dep. Ex. 20). This is further complicated by Callender’s claim that many of the team members on
the line did not speak English.
Ultimately, and even though the events at issue occurred at Tyson’s beef and pork processing
facility and not at one of its better known chicken processing plants, having Jenkins grade
Callender’s performance on the PIP may have been akin to the proverbial fox guarding the henhouse.
That is something for the jury to determine.
In reaching this conclusion, the Court agrees that Callender “cannot proceed to trial based
on a subjective disagreement with Tyson’s business judgment,” Carter v. Toyota Tsusho Am., Inc.,
529 F. App’x 601, 613 (6th Cir. 2013), and that “it is inappropriate for the judiciary to substitute its

12

judgment for that of management,” Smith v. Leggett Wire Co., 220 F.3d 752, 763 (6th Cir. 2000).
At the same time, however, the Court also recognizes that “subjective reasons provide ‘ready
mechanisms for discrimination,’” Hedrick v. Western Reserve Care Sys, 355 F.3d 444, 461 (6th Cir.
2004) (citation omitted) and “‘[w]here termination decisions rely on subjective evaluations, careful
analysis of possible impermissible motivations is warranted because such evaluations are particularly
susceptible of abuse and more likely to mask pretext,’” Yazdian v. ConMed Endoscopic Techs., Inc.,
793 F.3d 634, 648 (6th Cir. 2015) (citation omitted). Here, the jury will have to sort things out
because “the weighing of the evidence, and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
150-51 (2000).
III. Conclusion
On the basis of the foregoing, Tysons’ Motion for Summary Judgment will be granted with
respect to Callender’s race and age discrimination claims, but denied with respect to his retaliation
claim.
An appropriate Order will enter.

__________________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

13