Passmore v. Mapco Express, Inc. et al
MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/19/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
TODD B. PASSMORE,
MAPCO EXPRESS, INC. and
DELEK US HOLDINGS, INC.,
Chief Judge Crenshaw
In this employment case, Mapco Express, Inc. and Delek US Holdings, Inc. have filed a
Motion for Summary Judgment (Doc. No. 25) on Todd B. Passmore’s claims of age discrimination
and retaliation. That Motion has been exhaustively briefed1 by the parties. (Doc. Nos. 26, 33, 41,
45-1). For the reasons that follow, the Motion will be granted in part and denied in part.
In support of their respective positions, the parties have separate statements of material fact,
ostensibly in accordance with Local Rule 56.01. That Rule contemplates the filing of a “concise
statement of the material facts as to which the moving party contends there is no genuine issue for
trial.” L.R. 56.01(b). It also provides that “the non-movant’s response may contain a concise
statement of any additional fact that the non-movant contends are material and as to which the non-
In the context of Passmore’s request to file a sur-reply, Magistrate Judge Brown aptly
observed that the briefing in this case was “getting out of hand,” that “[s]urely, with the excess pages
already filed, a surreply is not needed,” and that the granting of leave to file one “would undoubtedly
only result in a motion for a sur-surreply.” (Doc. No. 48 at 1-2). Although Passmore objects to
Magistrate Judge Brown’s Order, he has not shown that it is clearly erroneous or contrary to law as
required by Rule 72(a) of the Federal Rules of Civil Procedure. Nevertheless, the Court has
considered Passmore’s sur-reply in formulating this opinion.
movant contents there exists a genuine issue to be tried.” Id. 56.01(c). The purpose of both
provisions is “to assist the Court in ascertaining whether there are any material facts in dispute[.]”
The parties’ filings honor Local Rule 56 more in the breach than in the observance. For a
single-employee employment discrimination case, the statements of fact are hardly concise.
Combined, the parties offer 154 paragraphs of supposedly undisputed material facts and, when the
objections are considered, their statements run 120 pages. What’s worse is the parties disagree on
the question of whether Mapco underwent a reduction in force, and Passmore disputes even the
seemingly straight-forward question of whether Mapco was his sole employer for purposes of his
Because of the way that the facts have been presented, the Court finds it appropriate to
deviate from its usual course in ruling on a Motion for Summary Judgment. Instead of attempting
to set forth a complete statement of the facts at the outset (which would be unwieldy and require a
number of disclaimers), the Court will set forth the most basic facts and then discuss additional
material facts as they become relevant to the legal analysis.
The basic facts, drawn from the parties’ statements and responses (Doc. Nos. 35, 43) are as
Mapco operates convenience stores in several states in the southeastern United States,
including Tennessee. Those stores are grouped into districts, and each district has a manager who
oversees the operation of all the stores in his or her district. Mapco also groups the districts into
divisions, and each division has a division manager.
On November 6, 2009, Passmore signed an offer letter accepting employment with Mapco
as a District Manager in Training (“DMIT”). Passmore began his employment with Mapco on
January 4, 2010 and, at the time, was 39 years old.
After serving as a DMIT for several months, Passmore was moved into a district manager
position in March of 2010. As a district manager, he oversaw the operation of between 9 and 13
stores, with the goal to ensure that they operated at the highest possible profit level.
In 2012, Andrew Heck became the division manager of the Nashville Division, and Passmore
reported to Heck. In August of that year, Heck turned 39 years old.
Passmore claims that, on various occasions, he complained to Heck that Heck’s comments,
actions, and/or directions were discriminatory against individuals and Mapco employees of
middle-eastern descent. This included a complaint in January 2013 about not allowing foreign cab
drivers to park in a store parking lot that was close to the airport, and not allowing Coptic Christian
employees at that same store to keep the store’s Christmas decorations up in January. In July 2013,
Passmore also complained that Mapco’s Anti-Money Laundering (“AML”) compliance program and
testing targeted specific employees in his district because of their ethnicity or national origin.
Passmore also claims that at some point in 2013, Heck made comments and/or took other actions
that Passmore considered discriminatory against Mapco employees of Egyptian descent, including
(1) asking a then-district manager to repeat a joke that Passmore’s stores were “Al-Qaeda training
grounds,” (2) wanting to move a store manager due to the store manager’s race and national origin,
(3) paying non-Egyptian store managers more in gift cards than Egyptian store managers for
covering other stores, and (4) not moving an Egyptian store manager from one store to another
because Heck did not want Nolensville Road (where the store was located) run “by a bunch of
In the Nashville Division there were 11 districts identified as District 1A to District 1K. In
June 2013, Mapco realigned the Nashville Division and assigned Passmore to District 1C.
In the third quarter of 2013 and leading up to November 2013, there were only nine district
managers for the eleven Nashville districts. To fill the two open district manager positions, Heck
hired Jan Rakoczy and promoted Garrett Wagner, a Mapco store manager, to serve as DMITs.
Although both had to undergo weeks of training before being permitted to run a district, Rakoczy
signed an offer letter accepting a district manager position on August 28, 2013, and Wagner did the
same on October 2, 2013.
At this point, the parties’ versions of events markedly differs. Defendants claim that, in
mid-October 2013, Tony Miller, Mapco’s acting president, informed Heck that Heck needed to
eliminate a district manager position in the Nashville Division. This was allegedly required as a part
of Mapco’s move to eliminate a district manager in four divisions (Nashville, Chattanooga,
Memphis, and Alabama), plus a loss prevention specialist, as part of budget cuts. Accordingly,
Heck gathered financial data for the third quarter of 2013 for purposes of conducting “talent
reviews” on the district managers working in his division. Under the category “performance
management,” the talent review measured “core responsibilities” and “behaviors.” To determine
the “core responsibilities” portion of the review, Heck created a spreadsheet that measured the
financial performance of his district managers for the third quarter of 2013.
With the exception of EBITDA2 for which Passmore received a score of 4 (“exceeding
expectations”), Passmore received a 2 (“needs improvement”) on all of the “core responsibilities.”
Concerning “behaviors,” Heck rated Passmore a 5 (“greatly exceeds expectations”) for being
“persistent” and “opportunistic,” but rated Passmore a 1 (“below standards”) for each of the
following categories: “proud/excellence,” “trustworthy/respect,” “accountability,” and “customer
According to Heck, Passmore received the lowest talent review score of all of the district
managers in the Nashville Division. Heck also claims that he sought input about who to fire from
Steve Adcox, his Assistant Division Manager, as well as Mike Terrell, who Defendants claim was
Mapco’s Director of Loss Prevention but Passmore claims was DelekUS AML’s Compliance
Officer. Regardless, Terrell claims that Heck was wavering between terminating Passmore or
another district manager, but Terrell told him to let Passmore go. This was because, while the other
manager (whose name he did not recall during his deposition) was also under-performing, Heck’s
“shrink3 performance was very, very poor.” (Doc. No. 25-7, Terrell Depo. at 59). Terrell also
believed that the other manager was already looking for a job and would probably leave of his own
volition, whereas Passmore “would probably not leave voluntarily.” (Id.).
Heck ultimately decided to eliminate Passmore’s position and terminate his employment.
Defendants claim Heck discussed his decision with Miller and Jennifer Boulton, who Defendants
claim was Mapco’s Vice President of Organizational Development at the time, but who Passmore
EBITDA is an acronym for earning before interest, tax, depreciation, and amortization.
(Doc. No. 25-4, Heck Depo. at 99).
“Shrink” refers to the theft or loss of merchandise and cash at a store. (Doc. No. 25-7,
Terrell Depo. at 59).
claims held that role as an employee of Delek. Both allegedly approved Passmore’s termination.
On November 8, 2013, Boulton informed Passmore that he was being terminated because
his position was being eliminated. Passmore admits that is what he was told, but claims it was a
pretext used to fire him for unlawful reasons. In this regard, Passmore asserts that (1) the talent
review was not signed and dated by Heck until November 20, 2013, weeks after the termination; (2)
many of the numbers Heck used actually favored retaining Passmore over any of a number of the
other District Managers; (3) Passmore received bonuses and awards shortly before he was fired; and
(4) the day after his termination Wagner and Rakoczy were promoted to the position of division
managers and the number of division managers increased from 9 to 10.
The parties’ differences go far beyond those just recounted, but are more than enough to
place their arguments in context. The issue becomes whether the differences are material and
whether they require a jury trial on any one or more Passmore’s claims.
II. Summary Judgment Standard
As this Court has noted in the past, the standard governing summary judgment has been
restated on countless occasions and is 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
Passmore brings both federal and state law claims. He alleges age discrimination in violation
of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. and the
Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101, et seq.. He also alleges
retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e,
et seq., the THRA,4 and the Tennessee Public Protection Act (“TPPA”), Tenn. Code § 50-1-305.5
Prior to reaching those claims, the Court must addresses whether Delek also employed Passmore,
and whether Mapco underwent a reduction in force.
A. Delek as an Employer
Passmore argues that both Delek and Mapco were his employers. That argument fails
whether considered under the single employer/integrated enterprise, joint employer, or agency
theories of liability.
“Under the ‘single employer’ or ‘integrated enterprise’ doctrine, two companies may be
considered so interrelated that they constitute a single employer subject to liability under the ADEA
and/or the ADA.” Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir.
1997). “In determining whether to treat two entities as a single employer, courts examine the
“THRA claims are analyzed in the same manner as claims brought under Title VII of the
Civil Rights Act of 1964,” Marpaka v. Hefner, 289 S.W.3d 308, 313 (Tenn. Ct. App. 2008)
(collecting cases). This includes the McDonnell Douglas v. Green, 411 U.S. 792 (1973)
burden-shifting framework that the Tennessee legislature codified for all claims filed after June 10,
2010. Tenn. Code Ann. § 4–21–311 (2011).
In the controlling First Amended Complaint, Passmore also brought claims for a hostile
work environment under Title VII and the THRA, as well as claims for wrongful termination and
retaliation under Tennessee common law. He has voluntarily dismissed his hostile work
environment claim (Doc. No. 24), and in his Sur-Reply concedes that his common law claims have
“been preempted by state statutory law.” (Doc. No. 45-1 at 1).
following four factors: (1) interrelation of operations, i.e., common offices, common record keeping,
shared bank accounts and equipment; (2) common management, common directors and boards; (3)
centralized control of labor relations and personnel; and (4) common ownership and financial
control.” Id. at 993-94; see N.L.R.B. v. Palmer Donavin Mfg. Co., 369 F.3d 954, 957 (6th Cir.
2004) (identifying those four factors as the “well-established criteria” for determining integrated
enterprise status). Although “[n]one of these factors is conclusive, and all four need not be met in
every case . . ., control over labor relations is a central concern.” Id. (citing Armbruster v. Quinn,
711 F.2d 1332, 1336-37 (6th Cir. 1983)).
“The joint-employer and single-employer doctrines are analytically distinct.” Sanford v.
Main St. Baptist Church Manor, Inc., 449 F. App’x 488, 495 (6th Cir. 2011). “The joint-employer
doctrine involves a business that maintains sufficient control over some or all of the formal
employees of another business as to qualify as those employees’ employer; unlike in the
single-employer context, the two businesses are in fact independent.” Id. at 491. The Sixth Circuit
has stated that “[w]hether a joint employer relationship exists depends upon ‘such factors as the
supervision of the employees’ day to day activities, authority to hire or fire employees, promulgation
of work rules and conditions of employment, work assignments, and issuance of operating
instructions.’” N.L.R.B. v. Centra, Inc., 954 F.2d 366, 370 n.2 (6th Cir. 1992) (quoting W.W.
Grainger, Inc. v. NLRB, 860 F.2d 244, 247 (7th Cir. 1988)). Similarly, the Sixth Circuit has
indicated that joint employer status exists where “two or more employers exert significant control
over the same employees—where from the evidence it can be shown that they share or co-determine
those matters governing essential terms and conditions of employment.” Carrier Corp. v. N.L.R.B.,
768 F.2d 778, 782 (6th Cir. 1985); see Elkin v. McHugh, 993 F. Supp. 2d 800, 806 (M.D. Tenn.
2014) (citation and internal quotation omitted) (“To be a joint employer, VII requires the two entities
to share or co-determine those matters governing essential terms and conditions of employment. .
. . The major factors are the authority to hire, fire, discipline, affect compensation and benefits, and
direct and supervise performance.”).
Finally, the “third approach examines whether the person or entity that took the allegedly
illegal employment action was acting as the agent of another company, which may then be held
liable as the plaintiffs’ employer.” Swallows, 128 F.3d at 993 (citing Deal v. State Farm Cty. Mut.
Ins. Co. of Tex., 5 F.3d 117 (5th Cir. 1993)). “An agent is one who consents to act on behalf of
another and subject to the other’s control.” Id. at 996 (citing RESTATEMENT (SECOND) OF AGENCY
§ 1 (1958)). “An agent within the context of the ADEA and other employment discrimination
statutes must be an agent with respect to employment practices.” Id.
Regardless of the theory used, the evidence before the Court establishes that Passmore was
employed solely by Mapco, not by Mapco and Delek or some combination of the two. Mapco was
a subsidiary of Delek until Mapco was sold in November 2016. During all relevant times, Mapco
and Delek had different presidents. They also had separate bank accounts, capital structures,
financial records, and employee payrolls.
Although the two companies shared a common
headquarters, Mapco owned and controlled all of its own real estate, equipment and supplies.
More specifically in relation to Passmore, the offer letter he received made clear that he was
going to work for Mapco. It began by saying that the company was “excited about your decision
to join us at Mapco Express,” and continued on to point out that “Mapco Express has an excellent
comprehensive medical and dental insurance plan.” (Doc. No. 38-8 at 1). At the conclusion of the
letter, Passmore evidenced his intent to work for Mapco Express by signing and dating the following
I agree to the above terms of this offer of employment with MAPCO Express. I
understand that this does not constitute an employment contract for any specific
term, and does not alter the at-will nature of my employment with MAPCO Express.
(Id. at 2).
Furthermore, Passmore admitted in his deposition that he “was employed by Mapco
Express,” and acknowledged that the Position Overview for the District Manager position he held
listed Mapco Express as the “appropriate company.” (Doc. No. 25-3, Passmore Depo. at 30 and
Exh. 4). All of the W-2 Wage and Tax Statements that Passmore received during his employment
also identified Mapco Express as his employer. (Doc. No. 25-1 at 7-11).
“To make out a prima facie case of either . . . discrimination or retaliatory termination under
Title VII, a plaintiff must first prove the defendant was h[is] employer.” Knitter v. Corvias Military
Living, LLC, 758 F.3d 1214, 1225 (10th Cir. 2014); see Tipton v. Northrup Grumman Corp., 242
F. App’x 187, 190 (5th Cir. 2007) (stating that plaintiffs have the “burden of coming forth with
‘specific facts’” to establish that the parent company is an employer); Sanford, 449 F. App’x at 495
(observing that for purposes of satisfying the numerosity threshold for employer liability under Title
VII, the employee has the burden of establishing single-employer doctrine). Although he raises a
number of arguments, Passmore falls far short of carrying that burden in relation to Delek.
A lot of Passmore’s arguments are based upon the mistaken contention that Boulton and
Miller were Delek employees during the relevant period. He claims that “Human Resources was
run by Jen Boulton, an employee of Delek,” and that both she and Miller “worked for both
companies,” with Miller serving as Delek’s Acting President when Passmore was fired.” (Doc. No.
33 at 34-35). Both, allegedly, “had input into the decision to fire Plaintiff” and approved “the initial
hiring and promotions of Wagner and Rakoczy to district manager positions.” (Id. at 36).
However, Boulton testified in her deposition that she went to work for Mapco as the Vice
President of Organizational Development in May of 2011, and that a “[y]ear and a half to two years”
before her deposition on January 17, 2017, she “moved officially from working for the legal entity
of MAPCO, and . . . officially moved over to working for the legal entity of Delek US.” (Doc. No.
25-6, Boulton Depo. at 7-8, 11). This suggests Boulton moved from Mapco to Delek in January
2015 at the earliest and was, therefore, was employed by Mapco at the time of the events giving rise
in this suit. Passmore has not shown otherwise.
As for Miller, Passmore asserts that Miller testified in his deposition that he worked for
Delek, not MAPCO, from 2009 onward. However, what Miller actually stated was that, even though
he started working for Delek in 2009 as Vice President of Merchandising, he was the Acting
President or President of “retail operations” at the time Passmore was fired, (Doc. No. 25-2, Miller
Depo. at 4-5), meaning he held the role as an employee of Mapco.
This is confirmed by the
declaration of Amy Harrison, Senior Counsel for Delek US Holdings, who avers that, beginning in
the Summer of 2013 and for the remainder of that year, Miller served as Mapco’s President and was
responsible for the day-to-day operations of that company. (Doc. No. 25-1, Harrison Decl. ¶¶ 8-9).
Again, Passmore has not established otherwise.
Passmore also argues that in a 2013 Form 10-K filed with the Securities and Exchange
Commission, Delek claimed “3,018 employees in its retail segment and stated these workers were
employees of Delek.” (Doc. No. 33 at 35). This, however, is too broad a reading of the 10-K. What
it actually states is that, “[a]s of December 31, 2013, we had 4,366 employees, of whom 1,098 were
employed in our refining segment, 124 were employed by Delek for the benefit of our logistics
segment, 3,018 were employed either full or part-time in our retail segment and 126 were employed
at our corporate office,” with the “we” referring to “Delek US Holdings, Inc. and its consolidated
subsidiaries.” (Doc. No. 38-1 at 3, 23). The Form 10-K also identifies MAPCO Express, Inc. as one
of Delek’s subsidiaries, and later indicates that the “retail segment” of Delek was operated under
various names, including Mapco Express and Mapco Mart. (Id. at 2, 3, 17).
Passmore next argues that Delek and MAPCO used each other’s letterheads and logos
interchangeably and shared risk management functions, Delek’s internal audit group audited
Mapco’s complaince program, and Delek and Mapco shared a common headquarters and employee
handbook. He cites E.E.O.C. v. Dolphin Cruise Line, Inc., 945 F. Supp. 1550 (S.D. Fla. 1996) for
the proposition that the use of shared logos/letterheads, offices and services are deemed to be a
“strong indicia of interrelated operations.” (Doc. No. 33 at 34-35). However, the court in Dolphin
Cruise noted that there must be “sufficient indication that there is such active interrelationship
between the entities that they can be regarded as a single employer of the charging party,” and this
determination must be based upon the “totality of the circumstances[.]” 945 F. Supp. at 1553. The
totality of the circumstances in that case suggested a single employer because the following factors
were also present: the sole owner of one company was also the president of both; lower level
managers of both corporations assisted each other in the daily operations of the company; the parent
company made employment decisions for both companies; and the companies were “marketed as
twin operations,” among many other things. Id. at 1554. See also Ahumada v. Belcher Mgmt.,
LLC, 2014 WL 2832674, at *5 (M.D. La. June 23, 2014) (finding that the parent company was not
employer even though employee received documentation and policies under its letterhead when the
decision was made by the subsidiary and employees paychecks came from the subsidiary); Ennis
v. TYCO Int’l Ltd., 2004 WL 548796, at *4 (S.D.N.Y. Mar. 18, 2004) (rejecting single employer
doctrine even though plaintiff’s business cards and letterhead indicated that Sontirol was a Tyco
company, plaintiff was encouraged to mention that affiliation in sales pitches, the benefit plans were
administered by Tyco, plaintiff agreed to abide by Tyco’s employment guidelines manual, and Tyco
advertised itself as an employer of more than 200,000 people worldwide, including Sonitrol
As Passmore recognizes, the critical question is “what entity made the final decisions
regarding employment matters related to the person claiming discrimination.” Swallows, 128 F.3d
at 995. “Essentially, this factor seeks to determine which entity has the power to hire and fire the
employee.” Lisenbee v. FedEx Corp., 579 F. Supp. 2d 993, 1002-03 (M.D. Tenn. 2008) (citation
omitted). “Even if a parent company has some influence in certain employment decisions . . . the
factor is not satisfied if it does not control ‘those decisions in the manner seen in single employer
situations.’” Id. (citation omitted)
Passmore has not shown that Delek hired him, that Delek made the final decision to fire him,
or that there was centralized control of labor relations and personnel as between Delek and Mapco.
As such, his claims against Delek are subject to dismissal because Delek was not his employer.
B. Reduction In Force or “RIF”
In addition to disputing who employed Passmore, the parties dispute whether he was
terminated as a part of a reduction in force. The significance of this dispute lies in the fact that (as
discussed below) the elements of a prima facie case of age discrimination under McDonnell Douglas
Corp. v. Green differ depending upon whether there was a bona fide RIF.
“A work force reduction situation occurs when business considerations cause an employer
to eliminate one or more positions within the company.” Bell v. Prefix, Inc., 321 F. App’x 423, 428
(6th Cir. 2009). Although “[a]n employer need not dismiss any particular number of employees, or
terminate a set percentage of the work force, to institute a reduction in force,” LeBlanc v. Great Am.
Ins. Co., 6 F.3d 836, 845 (1st Cir. 1993), “[a] RIF is not an open sesame to discrimination, Matthews
v. Commonwealth Edison Co., 128 F.3d 1194, 1195 (7th Cir. 1997), and thus “may not be used as
a disguised adverse action to remove or demote a particular employee,” Gandola v. F.T.C., 773 F.2d
308, 312 (Fed. Cir. 1985).
The Sixth Circuit has “described the inquiry a court must undertake to determine whether
an employee was terminated as part of a reduction in force:
. . . ‘An employee is not eliminated as part of a work force reduction when he or she
is replaced after his or her discharge. However, 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.’”
Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 537 (6th Cir. 2014) (quoting Barnes v.
GenCorp, 896 F.2d 1457, 1465 (6th Cir.1990)).
Mapco insist that there was a valid RIF because it eliminated a district manager position in
the Nashville Division, three district manager positions in the other divisions, and a loss prevention
specialist position. That is, five positions were eliminated.
From Passmore’s perspective there was no RIF. The day before he was terminated there
were 9 district managers in Nashville and the day after there were 10 because Mapco promoted both
Wagner and Rakoczy from their positions as DMITs.
The foregoing is a simplistic version of the parties’s position on the question of whether there
was a reduction of force. Despite the parties’ wasting a great deal of ink on the issue, the Court
finds it unnecessary to spill more, other than to note two common sense observations. First, if there
was not truly a RIF, Mapco undertook an elaborate ruse to manufacture one in an effort to get rid
of Passmore for nonpretextual reasons. Second, if there was a legitimate RIF, one would expect the
decision to be covered with paperwork in the form of emails, letters and/or corporate directive, yet
the primary support for Mapco’s contention is that Miller supposedly instructed Heck to eliminate
a position in Nashville. Even then, Mapco does not rely on Miller for this assertion perhaps because
his recollection (according to his deposition testimony) is sketchy at best. Nevertheless, it is
unnecessary to determine whether this case should be analyzed as a RIF case because the result is
the same either way: Passmore has failed to present a jury question on his age discrimination or
TPPA claims, but he has provided sufficient questions of fact so as to warrant a jury trial on his
retaliation claims under Title VII and the THRA.
C. Age Discrimination
“Typically, to prove a prima facie case of age discrimination, an employee must demonstrate
that ‘(1) he or she was a member of a protected age class (i.e., at least forty years old); (2) he or she
suffered an adverse employment action; (3) he or she was qualified for the job or promotion; and
(4) the employer gave the job to a younger employee.’” Pierson, 749 F.3d at 536 (quoting Blair v.
Henry Filters, Inc., 505 F.3d 517, 529 (6th Cir. 2007)). “However, when an employee is terminated
as part of a reduction in force, the employee must meet a heightened standard to prove his prima
facie case: He must present ‘additional direct, circumstantial, or statistical evidence tending to
indicate that the employer singled [him] out . . . for discharge for impermissible reasons.’” Id. at
536-37 (quoting Barnes, 896 F.2d at 1465).
Whether a RIF case or not, when a plaintiff submits evidence from which a reasonable jury
could conclude that a prima facie case of discrimination has been established, “[t]he defendant must
then offer sufficient evidence of a legitimate, nondiscriminatory reason for its action.” Macy v.
Hopkins Cty. Sch. Bd. of Educ., 484 F.3d 357, 364 (6th Cir. 2007) (citing Monette v. Elec. Data
Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996)).
“If the defendant does so, the plaintiff must
identify evidence from which a reasonable jury could conclude that the proffered reason is actually
a pretext for unlawful discrimination.” Id. “The plaintiff’s burden to demonstrate pretext in the final
step then ‘merges with the ultimate burden of persuading the court that he has been the victim of
intentional discrimination.’” Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 812 (6th Cir. 2011)
(quoting Texas Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248, 256 (1981)). “In evaluating pretext
and the plaintiff’s ultimate burden, the court should consider all evidence in the light most favorable
to the plaintiff, including the evidence presented in the prima facie stage.” Id. (citing Peck v. Elyria
Foundry Co., 347 Fed. App’x 139, 145 (6th Cir. 2009)).
If, as Mapco contends, there was a bona fide reduction in force, Passmore’s age
discrimination case fails at the prima facie stage.
He does not argue, let alone point to any
evidence, that would suggest Mapco singled him out for discharge because of his age. All he really
argues is that he was 42 when fired, Wagner was 33 when he became a district manager, and an age
difference of 6 ½ years “is sufficient to create an issue of material fact at the summary judgment
stage.” (Doc. No. 33 at 20 (citing Blizzard v. Marion Tech. Coll., 698 F.3d 275, 284 (6th Cir.
2012)). This is true enough but irrelevant in a reduction in force case because, by definition, the
employee is not replaced. See Johnson v. Franklin Farmers Co-op., 378 F. App’x 505, 510 (6th Cir.
2010) (stating that in RIF, “[a]n employee is not replaced for purposes of the fourth element of a
prima facie case of discrimination 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”); Schram v. Schwan’s Sales Ent., Inc., 124 F. App’x 380, 384 (6th
Cir. 2005) (observing that in “a true RIF, the ultimate question is whether [one employee] replaced
If, as Passmore contends, there was no true reduction in force, his age claims fail because
Mapco has presented legitimate non-discriminatory reasons for termination, i.e. a division
reshuffling or reorganization and alleged under-performance, and Passmore has not shown those
reasons to be a pretext for age discrimination, or that those reasons did not actually or were not
sufficient to motivate Mapco’s decision, or even that they had no basis in fact. It is undisputed that,
at the time of Passmore’s firing, Heck was 40 years old, and in the protected class. It is also
undisputed that Rakoczy, who was one of the DMIT’s that became a division manager, was the same
age as Passmore. And it is further undisputed that as of the time Passmore’s termination, the ages
of the remaining District Managers or DMITs in the Nashville Division were as follows: Ken
Aggers (60), Tim Sprankle (55), Terry Cheffins (52), Mike Nelson (43), Bryan Quince (38), Michael
Hurt (33), Jonathan Hutzel (33), Garrett Wagner (33), and Catherine Hart (32). In short, four district
managers were older than Passmore, three significantly so. Passmore’s termination based on age
did a very poor job of lowering the average age of District Managers and DMITs.
In its memorandum, Mapco argues that “[n]o reasonable jury would ever believe that Heck,
age 40, chose to terminate Passmore, age 42, on the basis of Passmore’s age while four other district
managers who were older than Passmore kept their jobs.” (Doc. No. 26 at 14). Passmore’s response
does not address this argument and, other than to confirm that he brings age discrimination claims
under both Title VII and the THRA, he does not even mention age discrimination in his sur-reply.
In his deposition, Passmore testified that the only basis for his age discrimination claim is
the fact that he was over 40 at the time of his termination and that Wagner, his supposed
replacement, was under 40. However, “the sole fact that he was replaced by a younger person is
insufficient as a matter of law to raise a genuine dispute of material fact as to whether [Mapco’s]
nondiscriminatory reason for [firing] him was pretextual.” Tennial v. United Parcel Serv., Inc., 840
F.3d 292, 305-06 (6th Cir. 2016). In other words, “‘[t]he isolated fact that a younger person
eventually replaces an older employee is not enough to permit a rebuttal inference that the
replacement was motivated by age discrimination.’” Hedrick v. W. Reserve Care Sys., 355 F.3d
444, 462 (6th Cir. 2004) (quoting Chappell v. GTE Prod. Corp., 803 F.2d 261, 267 (6th Cir. 1986)).
Summary judgment will be granted on Passmore’s age discrimination claims.
D. Retaliation Claims
As with Passmore’s age discrimination claims, his retaliation claims are analyzed under the
burden shifting paradigm set forth in McDonnell Douglas. However, the essential elements of a
prima facie case are different as between retaliation claims under Title VII and the THRA on the
one hand, and the TPPA on the other. That difference affects the outcome of those claims and,
accordingly, will be analyzed separately.
A. Title VII and the THRA
“The elements of a retaliation claim are similar but distinct from those of a discrimination
claim.” Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). “To establish a prima facie
case of retaliation under Title VII, Plaintiff must demonstrate that: ‘(1) he engaged in activity
protected by Title VII; (2) his exercise of such protected activity was known by the defendant; (3)
thereafter, the defendant took an action that was materially adverse to the plaintiff; and (4) a causal
connection existed between the protected activity and the materially adverse action.’” Id. (quoting
Jones v. Johanns, 264 F. App’x 463, 466 (6th Cir. 2007)). For purposes of summary judgment,
Mapco challenges only whether there was a causal connection between Passmore’s protected
activity and his firing.
“Title VII retaliation claims must be proved according to traditional principles of but-for
causation,”6 and “[t]his requires proof that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Ctr.
v. Nassar, 133 S. Ct. 2517, 2533 (2013). The same holds true for retaliation claims under the
THRA. Goree v. United Parcel Serv., Inc., 490 S.W.3d 413, 440 (Tenn. Ct. App. 2015).
Mapco argues that the last instance of protected activity occurred on July 17, 2013, when
Passmore allegedly refused to terminate an Egyptian employee for failing an anti-money laundering
quiz because Passmore thought it was discriminatory. Because this was almost four months before
the termination, Mapco argues there was no temporal proximity and, furthermore, “‘temporal
proximity alone will not support an inference of retaliatory discrimination when there is no other
compelling evidence.’” (Doc. No. 26 at 24 (quoting Imwalle v. Reliance Med. Prods., Inc., 515 F.3d
531, 550 (6th Cir. 2008)).
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). “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
“But for” causation is the same thing as “‘because of,’ ‘by reason of,’ or ‘based on’”
causation. Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228, 235-36 (4th Cir. 2016).
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 Circuit went on to observe
that it had “not considered any specific ceiling on the period of time that a court will consider
sufficient to show temporal proximity,” but 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 approximately four-month gap identified by Mapco is perhaps too long a time, standing
alone, to show temporal proximity, but Mapco’s argument does not take into account that Passmore
lists a long litany of complaints about alleged discrimination against Middle-Easterners dating back
to January 2013. Passmore also claims to have complained to Adcox in October 2013 about Heck’s
refusal to promote an employee to a manager slot because the employee was Egyptian, and that, less
than a week before his termination, he complained about all of Heck’s allegedly discriminatory acts
to Brian Veasman, Mapco’s Director of Operations.
Mapco shrugs off this evidence. For example, it claims the evidence relating to Veasman
is irrelevant because he was not involved in the termination decision and because he claims not to
have told Boulton about those complaints. However, Boulton testified in her deposition that
Veasman was trained to bring reports about discrimination to Human Resources and that, in fact,
it was his duty to forward such complaints to her. At the very least, this raises credibility issues and
questions of fact regarding whether Veasman reported Passmore’s complaint to Human Resources
or Boulton, both of which are for the jury to decide.
Construing the facts in Passmore’s favor, whether Mapco’s stated reasons for discharge were
a pretext for retaliation also raises questions of fact for the jury. Mapco’s position throughout has
been that there was a reduction in force and that Passmore was let go because he was the poorest
performing division manager. As noted, however, whether a RIF occurred is hotly contested.
Furthermore, for allegedly being an under-performer, Passmore was the subject of only one
counseling form during his employment.
He was never formally disciplined for poor job
performance, nor was he the subject of a performance improvement plan under Mapco’s progressive
Moreover, for the months of August and September 2013, Passmore received bonuses, while
many other district managers did not. In fact, only two of the eleven district managers received
more in bonuses during this period than Passmore.7 Passmore also did better than some of the other
Division Managers in several of the categories assessed by Heck.
Additionally, during an October 24, 2013 divisional meeting, Passmore received an award
for “Mi Tienda,” a program he developed for attracting more ethnic customers to his store, and was
also chosen with four others to be placed on Mapco’s “Wall of Fame.” The award read:
Mapco objects to Passmore’s identification of the bonuses received by the district manager
because the documents on which they are based are not authenticated. This is an interesting
argument to make since Passmore claims they are based on Mapco’s own documents produced
during discovery. Regardless, “Rule 56 no longer draws a clear distinction between authenticated
and unauthenticated evidence for purposes of summary judgment.” Mangum v. Repp, 674 F. App’x
531, 537 (6th Cir. 2017). On summary judgment, “[t]he question is not whether the [documents]
have already been authenticated. Rather the issue is whether they can be presented in a form
admissible at trial.” Franklin Am. Mortg. Co. v. Chicago Fin. Servs., Inc., 145 F. Supp. 3d 725, 731
(M.D. Tenn. 2015) (citing Foreword Magazine, Inc. v. OverDrive, Inc., 2011 WL 5169384, at *2
(W.D. Mich. Oct. 31, 2011)); see Fed. R. Civ. P. 56(c)(2) (emphasis added) (“A party may object
that the material cited to support or dispute a fact cannot be presented in a form that would be
admissible at trial”).
This is in recognition of your personal commitment to owning the MY MAPCO
state of mind.
You took the initiative to rollout and own the Hispanic program for the company.
This has resulted in an increase of $300,000.00 in yearly sales. Your ownership of
the business is the highest standards of the MY MAPCO mindset. I personally want
to recognize and thank you for all your efforts.
VP of Operations
(Doc. No. 38-21 at 1).
Again, Mapco dismisses this evidence as not probative. It claims the Passmore’s receipt of
the Mi Tienda award “does not show that Mapco’s reasons for selecting Passmore as the District
Manager to divest were unworthy of credence,” and, besides, the program “is no longer in
existence.” (Doc. No. 49 at 7). Maybe so, but giving Passmore an award that recognized a huge
increase in sales, lauding his “high standards,” and selecting him for the “Wall of Fame” less than
a month before his termination at the very least presents a credibility question for the jury. (Doc.
No. 41 at 10).
Further, the fact that Boulton testified bonuses were not necessarily based on a district
manager’s performance “but could depend on what was going on in a particular area. . . such as fuel
pricing or a competitor shutting down across the street, (Doc. No. 49 at 7-8), does not rule out the
possibility that Passmore actually received the bonuses for performance. As for non-receipt of
progressive discipline, Mapco claims that there was discretion in the form the discipline imposed,
but this argument does not negate the fact that Passmore received only one counseling.
Finally, Mapco argues that Heck rated Passmore lowest among the district managers, but
Heck is also the one who was the subject of Passmore’s discrimination complaints. A jury could
view Heck as biased, that he selected Passmore instead of any number of other managers because
Passmore complained about him, and conclude that “the desire to retaliate was the but-for cause of
the challenged employment action.” Nassar, 133 S. Ct. 2528. Summary judgment is therefore not
warranted on Passmore’s claims for retaliation under Title VII and the THRA.
The TPPA is a “narrowly crafted exception to the long-established common law
employment-at-will doctrine.” Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 26 (Tenn. 2011).
“[S]ometimes referred to as Tennessee’s ‘Whistleblower Act,’” the TPPA “‘includes both (1)
discharge in retaliation for refusing to remain silent about illegal activities . . . and (2) discharge in
retaliation for refusing to participate in illegal activities.’” Williams v. City of Burns, 465 S.W.3d
96, 110 (Tenn. 2015) (quoting VanCleave v. Reelfoot Bank, 2009 WL 3518211, at *7 & n.3 (Tenn.
Ct. App. Oct. 30, 2009)).
Like retaliation claims under Title VII and the THRA, the burden shifting framework is
utilized, but with a notable difference. Unlike a THRA claim which requires only “but for”
causation, “the TPPA requires the plaintiff to prove that retaliation for the protected conduct was
the sole reason” for the adverse employment action. Id. (emphasis in original).8
The Court recognizes that the but-for standard may be “only marginally more efficacious
than the sole cause standard,” Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 325 (6th Cir.
2012) (Clay, J. concurring), but “but-for cause” does not mean “sole cause,” Leal v. McHugh, 731
F.3d 405, 415 (5th Cir. 2013). An employer may be liable under “but for” causation “if other factors
contributed to its taking the adverse action, as long as [the protected conduct] was the factor that
made a difference.” Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1278 (10th Cir. 2010). “Sole
cause,” on the other hand, is “[t]he only cause that, from a legal viewpoint, produces an event or
injury.” Leal, 731 F.3d at 415 (citation omitted). See Guessous v. Fairview Prop. Invs., LLC, 828
F.3d 208, 218 (4th Cir. 2016) (in TitleVII retaliation case “plaintiff’s burden is only to show that the
Leaving aside the apparent incongruity in claiming that age was a “but for” factor in the
termination decision while at the same time arguing that the termination was based “solely” on the
refusal to participate in illegal activity, Passmore has failed to meet the “high” bar and “stringent
standard . . . for recovery,” Sykes, 343 S.W.3d at 28, under the TPPA. Simply put, even after
drawing all inferences in his favor, the record fails to establish that Passmore was “terminated solely
for refusing to participate in . . . illegal activities[.]” Tenn. Code Ann. § 50–1–304(b).
In Williams, the Tennessee Supreme Court stated:
In articulating a non-retaliatory reason for discharging the employee, the defendant
employer in a TPPA case need not proffer evidence that unlawful retaliation was no
part of its decision to terminate employment. Rather, the employer need only
introduce admissible evidence showing that unlawful retaliation was not the sole
cause of the employment action. That is, the employer must proffer evidence that,
even if retaliation was a motivation for the discharge, there was at least one
non-retaliatory reason as well.
465 S.W.3d at 115.
Clearly, Passmore believes he was a better and more productive manager than several–if not
most–of the district managers that were retained, but “[a]n employee’s opinion that he did not
perform poorly is irrelevant to establishing pretext where the employer reasonably relied on specific
facts before it indicating that the employee’s performance was poor.” Stockman v. Oakcrest Dental
Ctr., P.C., 480 F.3d 791, 802 (6th Cir. 2007); see Adams v. Tenn. Dep’t of Fin. & Admin., 179 F.
App’x 266, 272 (6th Cir. 2006) (court’s role is not “to act as super personnel departments to second
guess an employer’s facially legitimate business decisions”). Regardless, Passmore’s assertion that
protected activity was a but-for cause of her termination, not that it was the sole cause”); Zann Kwan
v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013) (“Requiring proof that a prohibited
consideration was a ‘but-for’ cause of an adverse action does not equate to a burden to show that
such consideration was the ‘sole’ cause.”).
“[a]t least 4 districts performed worse than [his] on overages and shortages,” and two districts
performed worst [sic] than [his] district on both merchandise and cash overage and shortages,” does
not advance the ball in his favor because this means that the majority of districts managers
performed better in those categories.
Further, it is undisputed that Passmore received a Coaching and Counseling Form on July
12, 2013 for “unacceptable behavior” relating to his employees’ inability to pass the anti-money
laundering test. It is also undisputed that, as a result, Passmore’s district was prohibited from selling
money orders until August 13, 2013. And, it is undisputed that he sent an email to Heck in August
2013, in which he indicated that his district was “not where [he wanted] it to be yet[.]” (Doc.No. 253, Passmore Depo. Exh. 49).
The Court could go on, but the point is that Mapco had plenty of reasons for its employment
decision and Passmore cannot show that unlawful retaliation was the sole cause of his dismissal.
See Jones v. City of Union City, 2015 WL 9257815, at *12 (Tenn. Ct. App. Dec. 17, 2015) (holding
that where defendant “submitted evidence that [p]laintiffs were discharged for at least one
legitimate, non-pretextual reason [it] thereby affirmatively negated the final element of the
Plaintiffs’ TPPA claim–sole causation” making summary judgment appropriate); Levan v. Sears
Roebuck & Co., 984 F. Supp. 2d 855, 870-71 (E.D. Tenn. 2013) (denying summary judgment on
plaintiffs’ common law retaliation claim, but granting summary judgment on TPPA claim because
plaintiffs could not “show an exclusive causal relationship between their protected activity and the
adverse employment action”).
For the foregoing reasons, Defendants’ Motion for Summary Judgment will be granted with
respect to all of the claims against Delek, as well as Passmore’s claims against Mapco for age
discrimination and retaliation under the TPPA. The Motion will be denied with respect to
Passmore’s retaliation claims against Mapco under Title VII and the THRA.
An appropriate Order will enter.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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