Ashford v. Tennessee Board of Regents

Filing 28

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 11/29/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DR. DONNA ASHFORD,

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Plaintiff,
v.
TENNESSEE BOARD OF REGENTS,
Defendant.

Case No. 3:16-cv-1032
Judge Aleta A. Trauger

MEMORANDUM
Pending before the court is a Motion for Summary Judgment filed by the defendant (Doc.
No. 16), the Tennessee Board of Regents (“TBR”), to which the plaintiff, Dr. Donna Ashford,
has filed a Response (Doc. No. 20), and TBR has filed a Reply (Doc. No. 25). For the reasons
discussed herein, the motion will be granted, and Ashford’s claims will be dismissed.
BACKGROUND
Ashford is an African-American former employee of TBR, most recently serving as
Director of Support Services for the Regents Online Degree Program (“RODP”). Ashford
worked at TBR for 28 years. In that time, she received high performance evaluations and was
never cited or disciplined for any improper conduct.
Dating back to the mid-1970s, TBR has rented the third and sixth floors of an office
building owned by Genesco Corporation (“Genesco”), a footwear and apparel company. TBR
employees regularly take breaks or walks on the building’s fifth floor, which is occupied by
Genesco. Genesco often places discarded, damaged, rejected, or otherwise non-prime shoes in
hallway bins on the fifth floor, marked by signs indicating that the shoes are free for taking by
passersby. Ashford was never instructed not to take shoes from the fifth floor.

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On May 5, 2015, Ashford went for a lunchtime walk on the building’s fifth floor. She
encountered in the hallway a box containing boots. (Doc. No. 27-1 ¶ 8.) Although the boots
were not in a bin and there was no sign indicating that they were free for taking, Ashford took
the boots back to her floor. (Id. ¶ 5.) She left them in a recycling room, where they were located
by TBR personnel. (Doc. No. 19-1 ¶ 9.) Ashford was eventually identified, and the incident was
reported to TBR human resources personnel (“HR”). When TBR HR confronted Ashford about
the boots, Ashford acknowledged that she had taken them, stating that she believed they were
“trash.” (Doc. No. 27-1 ¶ 8.) She apologized for what she characterized as a
miscommunication and offered to return the boots immediately. (Doc. No. 1 ¶ 30-31.) The
boots were returned by TBR personnel to Genesco security, and Ashford’s supervisor, Dr.
Patrick Wilson, was notified of the incident. (Doc. 19-1 ¶ 9-11.) Wilson recommended
termination, and TBR’s Vice Chancellor agreed. (Id.)
On May 8, 2015, TBR Chancellor John Morgan accepted the recommendation and
terminated Ashford. Ashford’s position remained vacant for nearly two years. In February
2017, the position was reconfigured as Campus Relations Manager, a non-director level position
with no supervisory functions. The position was filled by Colbe Wilson, a Caucasian female.
The position’s requirements were altered to include a Master’s Degree, which Wilson possessed
but Ashford did not, and to require only two years of job-related experience (down from three
years, which Ashford possessed but Wilson did not).
In June 2015, Ashford’s had attorney sent TBR a letter outlining Ashford’s allegations of
wrongful termination. As a result, TBR conducted an internal investigation into the matter, for
which Ashford declined to be interviewed. (Doc. No. 19-2 ¶ 5.) The investigating employee
determined that there was insufficient evidence to conclude that Ashford was discharged for any

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improper reason. (Id. ¶ 6.) Ashford filed a complaint with the EEOC and received a Right to
Sue letter. On May 5, 2016, Ashford filed suit in this court, alleging that TBR discriminated
against her in violation of Title VII and the ADEA. This was the second time that Ashford had
brought allegations of racial discrimination against TBR. In 2013, Ashford complained to TBR
administrator Dr. Kay Clark that Ashford was given more responsibilities than similarly-situated
Caucasian employees, despite being paid less. (Doc. No. 20-1 ¶ 5.) No action was taken. (Id.)
TBR has faced several other issues with racial dynamics in recent years. Dr. Patrick
Wilson—Ashford’s Caucasian supervisor who recommended her termination—has had multiple
discrimination complaints filed against him by TBR employees. At least two of those employees
specifically complained that Wilson treated employees differently or unfairly because of race.
Another Caucasian TBR employee, Lisa Hall, was put on probation for an incident in which she
yelled at, cursed at, and threatened an African American temporary employee. (Id. ¶ 17.)
Yet another Caucasian TBR employee, Dr. David Tiller, drew criticism from fellow
employees for a training exercise that was perceived as racially offensive. (Doc. No. 27-2 ¶ 5.)
Tiller tied together ropes used as props in the training exercise and hung them on the wall outside
Ashford’s office. (Id.) Tiller made comments perceived as racially offensive before the
exercise, including a joke about “having a hanging” with regard to the ropes. (Doc. No. 1 ¶ 15c.) A complaint was filed by a colleague in Ashford’s department, and the ropes were removed
from the wall. (Doc. No. 27-2 ¶ 5.) Tiller was not terminated.
LEGAL STANDARD
Federal Rule of Civil Procedure 56 requires the court to grant a motion for summary
judgment if “the movant shows 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). If a moving defendant

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shows that there is no genuine issue of material fact as to at least one essential element of the
plaintiff's claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings,
“set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City
of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). “In evaluating the evidence, the court must draw all inferences in the light most
favorable to the non-moving party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
At this stage, “‘the judge's function is not . . . to weigh the evidence and determine the
truth of the matter, but to determine whether there is a genuine issue for trial.’” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a
scintilla of evidence in support of the [non-moving party's] position will be insufficient,” and the
party's proof must be more than “merely colorable.” Anderson, 477 U.S. at 252. An issue of fact
is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan, 578 F.3d
at 374 (citing Anderson, 477 U.S. at 252).
ANALYSIS
I.

Title VII 1
A plaintiff may prove unlawful discrimination by proffering either direct or indirect

evidence. Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 302 (6th Cir. 2016). In this case,
the plaintiff proffers indirect evidence. To analyze Title VII claims using indirect evidence, the

In her Response, Ashford argues, for the first time, that TBR is also liable under Title VII for
gender discrimination. Because Ashford did not plead a gender discrimination claim in her
Complaint, the court will not consider her argument. This section addresses only her race
discrimination claim.
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Sixth Circuit applies the burden-shifting approach established by the McDonnell Douglas line of
cases. Id; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Under this approach, Ashford must first establish the elements of a prima facie case. To
do so, she must show that she was (1) a member of a protected class, (2) subject to an adverse
employment action, (3) qualified for the position, and (4) replaced by a person outside the
protected class or treated differently than similarly-situated employees outside the protected
class. Tennial, 840 F.3d at 302 (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.
1992)). Only if Ashford can establish these elements does the burden shift to TBR to articulate a
legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas,
411 U.S. at 802.
Ashford has established the first three elements of her prima facie case with regard to her
termination. First, as an African-American, she is a member of a protected class for purposes of
her race discrimination claim. Second, her discharge is a classic example of an adverse
employment action. Vincent v. Brewer Co., 514 F.3d 489, 495 (6th Cir. 2007). Third, she was
objectively qualified for the position she held, and the defendant does not contend otherwise.
Indeed, in light of the fact that Ashford worked at TBR for more than twenty-five years with
strong performance reviews and no disciplinary record, TBR would have difficulty arguing that
she was unqualified. See Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660–66 (6th Cir.
2000) (noting that determination of the “qualified” prong of the prima facie case will generally
“involve assessing whether the plaintiff was meeting the employer's expectations prior to the
onset of the events that the employer cites as its reason for the termination”).
But Ashford fails to satisfy the fourth prong and, therefore, cannot establish a prima facie
case of discrimination. Ashford argues that she “was treated worse than white employees of the

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TBR” who were not terminated for conduct comparable to or worse than hers. (Doc. 21 p. 8.)
As an example, she points to Dr. David Tiller, whom she identifies only as a “white man” (id.)
and “Caucasian employee of the TBR.” (Doc. 1 ¶ 17). However, the Sixth Circuit requires a
higher level of specificity to establish that a plaintiff and a comparator employee were similarlysituated.
“The plaintiff need not demonstrate an exact correlation with the employee receiving
more favorable treatment in order for the two to be considered ‘similarly-situated;’ rather . . . the
plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be
similar in ‘all of the relevant aspects.’” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d
344, 352 (6th Cir. 1998) (internal citations omitted). The Sixth Circuit has offered guidance on
what those “relevant aspects” entail when the adverse employment action is discipline. “[T]o
qualify as ‘similarly-situated’ in the disciplinary context, the plaintiff and the colleagues to
whom he seeks to compare himself ‘must have dealt with the same supervisor, have been subject
to the same standards and have engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or the employer's treatment of
them for it.’” Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000) (internal citations omitted).
The plaintiff bears the burden of production at the summary judgment stage to prove by evidence
in the record that she is similarly-situated to fellow employees. See Mitchell v. Toledo Hosp.,
964 F.2d 577, 583 n.5 (6th Cir. 1992).
Ashford does not meet that burden. Even though the court would have no difficulty
finding that Tiller’s conduct was at least of comparable seriousness to Ashford’s, there is no
evidence in the record that Ashford and Tiller reported to the same supervisor or were held to the
same standards. The record does not even indicate what Dr. Tiller’s role and responsibilities

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were: Ashford offers no details beyond the fact that Tiller was a white man employed by the
TBR. See id. (“There is no evidence of record to establish that such different positions, or the
duties and responsibilities required of holders of these jobs, are sufficiently similar so as to
render them ‘comparable’ positions”) (“[W]ithout evidence that these two employees reported to
the same supervisor, there can be no showing that they were ‘subject to the same standards.’”).
Without more, Ashford cannot establish that she was similarly-situated to Tiller.
Ashford also argues that she satisfies the fourth prong because she was replaced by
someone outside the protected class. Specifically, she argues that she was replaced by Colbe
Wilson, a Caucasian woman who worked at TBR as an intern during Ashford’s tenure. (Doc.
No. 21 p. 8.) In the Title VII context, “a person is not replaced when another employee is
assigned to perform the plaintiff's duties in addition to other duties, or when the work is
redistributed among other existing employees already performing related work. A person is
replaced only when another employee is hired or reassigned to perform the plaintiff's duties.”
Barnes v. GenCorp Inc., 896 F.2d 1457, 1470 (6th Cir. 1990). “Of course an employer could not
avoid liability by changing the job title or by making minor changes to a job indicative of an
attempt to avoid liability.” Id. at n.10.
The court finds that Ashford was not replaced by Wilson for Title VII purposes. Nearly
two years after it fired Ashford, TBR reconfigured Ashford’s position as Campus Relations
Manager and promoted Wilson to the role. Unlike Ashford’s Director of Support Services
position, Wilson’s Campus Relations Manager position is not a director-level position and has no
supervisory functions. This constitutes a major shift in the position’s core responsibilities, rather
than simply a name change or a cosmetic alteration in function. Ashford’s supervisory duties
were either assigned to employees other than Wilson or eliminated. As Ashford herself

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acknowledges in her Response, “the job description of [Ashford’s] former position was
materially altered”, and “Ashford’s former position’s duties were re-written . . . .” (Doc. No. 21
p. 8.) Ashford was therefore not replaced by Wilson. Because Ashford was not similarlysituated to Tiller or replaced by Wilson, she cannot satisfy the fourth prong and thus fails to
establish a prima face case of race discrimination based on her termination.
Ashford sets forth an additional theory of Title VII race discrimination based on her
salary. Ashford pleads that she was unfairly compensated relative to her qualifications and that
she was the lowest paid RODP director, despite having more responsibilities and experience than
other directors. She does not offer evidence that her salary was substandard given her
qualifications, responsibilities, or experience. She does not offer evidence showing that she was
paid less than any other director. But even if Ashford were paid less than other directors, she
provides no support whatsoever for her claim that the disparity was linked to her race.
Ashford does not offer evidence that she was similarly situated to directors outside the
protected class in a way that would warrant equal pay. “Differences in job title, responsibilities,
experience, and work record can be used to determine whether two employees are similarly
situated.” Hatchett v. Health Care & Ret. Corp. of Am., 186 F. App'x 543, 548 (6th Cir. 2006).
Ashford does not even identify the directors she claims were better compensated than she, much
less their job titles. She states that she “had more responsibilities placed on [her] than similarly
situated Caucasian employees” but provides no evidence that her responsibilities were
qualitatively comparable to those placed on any higher-paid directors. (Doc. No. 20-1 ¶ 4.) She
states that she “had the most accumulated experience of any RODP member” but provides no
evidence that her experience was qualitatively comparable to that of any higher-paid directors.
(Id.) Title VII requires more. See id. (finding no discrimination where no record evidence

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supported that plaintiff’s position was sufficiently similar to higher-paid position to merit equal
pay). Given the lack of factual support for her claim, Ashford cannot establish a prima facie case
that she was underpaid because of her race. Her Title VII claim is dismissed.
II.

ADEA

Ashford pursues her ADEA claim, despite acknowledging in her Response that state
sovereign immunity has not been abrogated for purposes of the ADEA. See Kimel v. Fla. Bd. of
Regents, 120 S. Ct. 631 (2000). Ashford does not contest that TBR is protected by Tennessee’s
sovereign immunity. Ashford’s ADEA claim is therefore dismissed.
CONCLUSION
For the foregoing reasons, TBR’s Motion for Summary Judgment will be granted by
separate order.
ENTER this 29th day of November 2017.

______________________________
ALETA A. TRAUGER
United States District Judge

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