Wheeler v. Saga Communication of Tuckessee, LLC

Filing 44

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/7/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CHRISTINA CARMACK WHEELER,
Plaintiff,
v.
SAGA COMMUNICATION OF
TUCKESSEE, LLC,
Defendant.

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No. 3:16-cv-03141
CHIEF JUDGE CRENSHAW

MEMORANDUM OPINION
Christina Wheeler, a former on-air personality for the radio broadcasting company Saga
Communication of Tuckessee, LLC (“Saga”), brought this employment action against her former
employer alleging (1) gender discrimination, in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000(e) et seq., the Equal Pay Act, 29 U.S.C. § 206(d)(1), and the
Tennessee Human Rights Act (“THRA”), Tennessee Code Annotated § 4-21-401(a) and (2)
retaliation, in violation of Title VII, the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3),
the THRA, and the Tennessee Public Protection Act, Tennessee Code Annotated § 50-1-304. (Doc.
No. 25.) Before the Court is Saga’s Motion for Summary Judgment. (Doc. No. 33.) For the
following reasons, Saga’s Motion is denied.
I.

UNDISPUTED FACTS 1

Saga operates seven radio stations in Clarksville, Tennessee. (Doc. No. 40 at 1.) Three of
the radio stations are at issue here: “Beaver 100.3” is the largest-watt radio station, generating the

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There are drastic differences in the testimony of what occurred in the last three months of Wheeler’s
employment, up to and including what occurred at the meeting on the date of her termination. For the purposes of this
Opinion, all facts supported by evidence will be construed in the light most favorable to Wheeler.

most revenue, “Q108” is the second-largest radio station, and “Rewind 94.3” is one of the smaller
stations. (Id. at 2.) The on-air personalities that worked the “Morning Drive” shift, from 5:00 a.m.
to 9:00 a.m., were generally paid the highest because they had the most listeners, while the
personalities that worked the “Afternoon Drive,” from 2:00 p.m. until 7:00 p.m., were generally
paid the second-highest. (Doc. No. 36-2 at 35-36.) There is no other proof in the Statement of
Undisputed Facts (Doc. Nos. 40, 42) about amounts other shifts or radio stations paid.
A. Wheeler’s Employment With Saga
Saga hired Wheeler in 2007 as a full time on-air personality with an annual salary of
$22,000. (Doc. No. 42 at 3.) This was the lowest salary for any on-air personality at that time. (Id.
at 3.) She signed a 12-month contract each year from 2007 until 2015. (Doc. No. 36-2 at 41.) For
the 2015 calendar year, Saga and Wheeler agreed that Wheeler would receive a $24,000 salary
(Doc. No. 40 at 3; Doc. No. 36-3), although Saga’s records indicate that it paid Wheeler an annual
salary of $31,876. (Doc. No. 36-8 at 2.) Either of these salaries would have been the lowest of all
on-air personalities at that time. 2 (Id.) That year, Wheeler worked as an “on-air personality” for
the 9:00 a.m.-2:00 p.m. shift for Q108, and the Afternoon Drive shift on Rewind 94.3. (Doc. No.
40 at 2-3.) She also worked weekend shifts on both station. (Id. at 3.)
At some point, Wheeler inadvertently saw documentation that another on-air personality,
Nicholas Fox, had an annual salary of $36,000 per year. (Doc. No. 42 at 4.) Wheeler believed she
was not paid enough money, and began looking for other employment opportunities in November
2015. (Doc. No. 40 at 4; Doc. No. 36-2 at 51.) Around that time, Saga, through Wheeler’s
supervisor Jason Giardina, presented her with a contract for the 2016 calendar year with a salary

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Although three men were paid lower total salaries for the calendar year 2015, those three men only worked
part of the year. When calculating their monthly salaries, Saga still paid Wheeler the least on an annual basis. (Doc.
No. 36-8 at 2.)

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of $24,000. (Doc. No. 38-3 at 10-11.) Wheeler indicated that she was hesitant to sign the contract
because Saga was paying her less than her male counterparts. (Doc. No. 36-2 at 44.) 3 A few days
later, Giardina agreed with Wheeler that she was paid significantly less than the male on-air
personalities. (Doc. No. 25 at 5; Doc. No. 36-2 at 75 (affirming that Giardina made the statement
in Paragraph 36 of the original Complaint, which is paragraph 38 in the Amended Complaint)).
Giardina told Wheeler that it would be great if she could make more money because he was
surprised about how little she was making. (Doc. No. 36-4 at 11; Doc. No. 42 at 8.) Giardina stated
that he would convey Wheeler’s complaints to Katie Gambill, Giardina’s superior. (Doc. No. 362 at 70.)
On November 30, 2015, Wheeler sent Giardina an email that she needed more time to
decide whether to sign her 2016 offer of employment so that she could explore other employment
opportunities. (Doc. No. 40 at 4; Doc. No. 36-1 at 16.) Giardina informed Gambill, who instructed
him to give Wheeler until December 11, 2015, to consider her options. (Doc. No. 40 at 4; Doc.
No. 36-1 at 16.) In December 2015, Giardina asked Wheeler if she was ready to sign the 2016
contract, to which Wheeler stated she was not because she was expecting another job offer that
would be more lucrative. (Doc. No. 40 at 5; Doc. No. 36-4 at 9.) Giardina reported the update
regarding Wheeler to Gambill, who then authorized Giardina to offer Wheeler a temporary 30-day
contract that would allow her to stay at Saga through January 2016. (Doc. No. 40 at 5; Doc. No.
38-1 at 13; Doc. No. 38-2 at 16.) Giardina then provided Wheeler with a temporary 30-day
contract, which she signed. (Doc. No. 36-2 at 51-52.)
On January 11, 2016, Wheeler met with Giardina and Gambill. (Doc. No. 40 at 5.) Gambill
immediately stated that Wheeler was not going to be getting any more money and “there is no

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It is unclear from the Statement of Undisputed Facts and cited portions of the record if these conversations
took place in November or December 2015. This distinction is immaterial for the purposes of summary judgment.
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discussion to be had about that.” (Doc. No. 36-2 at 79-80.) At the meeting, Wheeler indicated that
she was willing to sign the contract, but she would ask Gambill to release Wheeler from her
contract if she received a better offer during the year. (Id. at 80-82.) At that point, Gambill stated,
“I’m not going to renew your contract. I’m going to give you the gift of freedom to pursue another
opportunity where you won’t feel that you’re being discriminated against.” (Id. at 82.) Wheeler
indicated that she was disappointed that her pay was lower than her male counterparts after being
with the company for nine years and that Gambill chose to treat her poorly when raising the issue.
(Id. at 83.)
B. Proposed Comparators at Saga
Wheeler compares herself to male on-air personalities Fox and David Meyers. (Doc. No.
42 at 4-6.) As stated previously, Fox made $36,000 per year in salary, while Myers earned $30,000
per year in salary. (Id. at 4-5.) It is unclear from the cited portions of the record what constituted
either Fox’s or Meyers’ radio experience at the time Saga hired them. Saga originally hired Meyers
to be an on-air personality on the afternoon shift of Beaver 100.3. (Id. at 5.) Until he was promoted
to become a morning host, replacing Fox, Myers had no additional responsibilities as compared to
Wheeler. (Doc. No. 36-1 at 21.)
II.

ANALYSIS

Saga moves for summary judgment on Wheeler’s state law claims as time-barred by the
employment contract. (Doc. No. 34 at 12.) It also moves for summary judgment on the gender
discrimination claims because it argues Wheeler does not establish there were any similarlysituated male counterparts. (Id. at 16.) Finally, Saga moves for summary judgment on Wheeler’s
retaliation claims because it argues Wheeler cannot prove causation. (Id. at 19.)

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In reviewing a motion for summary judgment, the Court will only consider the narrow
question of whether there are “genuine issues as to any material fact and [whether] the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The Court must view the
“inferences to be drawn from the underlying facts . . . in the light most favorable to the party
opposing the motion,” in this case, Wheeler. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). “The
party bringing the summary judgment motion has the initial burden of informing the Court of the
basis for its motion and identifying portions of the record that demonstrate the absence of a genuine
dispute over material facts.” Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The nonmoving
party then has the burden of showing that a “rational trier of fact [could] find for the non-moving
party [or] that there is a ‘genuine issue for trial.’” Matsushita, 475 U.S, at 587. If the evidence
offered by the nonmoving party is “merely colorable,” “not significantly probative,” or not enough
to lead a fair-minded jury to find for the nonmoving party, the motion for summary judgment
should be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “A genuine dispute
between the parties on an issue of material fact must exist to render summary judgment
inappropriate.” Hill v. White, 190 F.3d 427, 430 (6th Cir. 1999) (citing Anderson, 477 U.S. at 24749).
A. Contractual Limitations Period for State Law Claims
Saga argues that the state law claims are time-barred, not by the Tennessee statute, but
instead by the contract. (Doc. No. 34 at 12.) Indeed, Counts 3, 4, and 5 of the Amended Complaint
allege violations of the THRA and the TPPA, both which have a one-year statute of limitations.
Tenn. Code Ann. §§ 50-1-304 and 4-21-311. Because Wheeler was terminated in January 2016

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and she filed the original Complaint in this action in December 2016, the claims would be timely
under Tennessee law.
However, Wheeler’s employment contract for the year 2015 states:
Employee agrees not to commence any action which in any way relates to his/her
employment and/or termination of employment including any administrative claim
or lawsuit, against Employer and/or its agents or employees, more than six months
after the date of the event giving rise to said action(s) and Employee hereby
knowingly and voluntarily waives any statutes of limitations to the contrary.
(Doc. No. 36-3 at 8.) Wheeler concedes that, for the purposes of this case, Tennessee law allows
contracts to limit the period in which an employee may bring a THRA action. (See Doc. No. 38 at
6-7 (not disputing the law)); see also Bullard v. Fedex Freight, Inc., 218 F. Supp. 3d 608, 614 n.2
(M.D. Tenn. 2016) (recognizing Tennessee law allows employers to contractually limit
employee’s time frame to bring an action under the THRA) (quoting Hill v. Home Ins. Co., 125
S.W.2d 189, 192 (1938)). Wheeler filed the original Complaint eleven months after her
termination, so if the 2015 contract were in place when she was terminated, Wheeler’s THRA
claims would be contractually time-barred.
Additionally, the TPPA is governed by Tennessee’s one-year general statute of limitations.
Wade v. Knoxville Utils. Bd., 259 F.3d 452, 460 (6th Cir. 2001) (citing Weber v. Moses, 938
S.W.2d 387, 393 (Tenn. 1996)). However, the Tennessee Court of Appeals has allowed employers
to contractually limit employees’ time to bring TPPA actions. Skaan v. Fed. Exp. Corp., No.
W2011-01807-COA-R3-CV, 2012 WL 6212891, at *9 (Tenn. Ct. App. Dec. 13, 2012). The Court
of Appeals held that the contractual limitations period is “part of the terms on which [the employer]
would consider hiring [the employee], . . . and [the employer] hired [the employee] based on his
execution of the Employment Agreement.” Id. Here, Saga and Wheeler signed the 2015
employment contract reducing Wheeler’s time period to bring suit to sixth months after the

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alleged-retaliatory act. Because Tennessee would uphold that provision, Wheeler’s TPPA claim
would likewise be contractually time-barred if the 2015 contract were in place at the time of
Wheeler’s termination.
Here, however, there is a dispute of material fact on whether the 2015 contract was in effect
at the time of Wheeler’s termination. If the 2015 contract was simply extended for one month in
January 2016, as Saga argues, that “extended” contract would be the governing contract at the time
of the alleged retaliation, and the state law claims would be contractually time-barred. However,
if the parties executed a separate 30-day contract for January 2016, as Wheeler testified, there is
no evidence in the record regarding whether the same contractual limitations period existed. The
Court will allow the factfinder to determine whether there is a separate 2016 contract, and if so,
the Court will decide as a matter of law the effect of the THRA gender discrimination claim arising
in 2015. 4
B. Gender Discrimination
Saga moves for summary judgment on the substance of Wheeler’s gender discrimination
claims. Its sole argument is that Wheeler does not prove that she was treated differently than any
similarly-situated male employee. (Doc. No. 34 at 15-19.) Wheeler argues that Fox and Meyers
were similarly situated to her but paid more. (Doc. No. 38 at 7-11.)
The Court analyzes Wheeler’s Title VII, Equal Pay Act, and THRA gender discrimination
claims under the same standard. Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir. 1981); Payne
v. Goodman Mfg. Co., L.P., 726 F. Supp. 2d 891, 910 (E.D. Tenn. 2010) (analyzing THRA and

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The Court notes that the practical effect of this is minimal, if any. Wheeler can recover above Title VII’s
statutory cap under the Equal Pay Act, 29 U.S.C. § 216(c), and the THRA would not allow for any punitive damages
available under Title VII. See Summit Constructors, Inc., 788 F. Supp. 2d 703, 723 (M.D. Tenn. 2011) (noting that
punitive damages are not available under the THRA but are available under Title VII, and amount of damages
available under Title VII are capped as set forth in 42 U.S.C. § 1981a(b)(2)).

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Equal Pay Act claims under the same standard); Tolliver v. Children’s Home-Chambliss Shelter,
784 F. Supp. 2d 893, 903-04 (E.D. Tenn. 2011) (analyzing the Equal Pay Act and Title VII claims
using the same standard). For Wheeler to establish that she performed equal work for unequal pay,
she has the burden to prove that Saga “pays different wages to employees of opposite sexes for
equal work on the jobs the performance of which requires equal skill, effort, and responsibility,
and which are performed under similar working conditions.” Veher v. Cole Nat’l Grp., Inc., 251
F. App’x 993, 998 (6th Cir. 2007) (quoting EEOC v. Romeo Cmty. Schs., 976 F.2d 985, 987 (6th
Cir. 1992)).
Here, it is undisputed that at least Meyers performed the same work as Wheeler when he
worked the afternoon shift for Beaver 100.3, yet he had a higher salary. That Beaver 100.3 is a
larger station is of no consequence because there is no evidence in the record that the radio
personalities at the different stations get paid differently. Instead, the only evidence in the record
is that the radio personalities that work the afternoon drive are generally paid the second-highest.
(Doc. No. 36-2 at 35-36.) Yet Wheeler, working the afternoon shift, was paid the lowest of all the
on-air radio personalities. Wheeler established her prima facie case.
The burden then shifts to Saga to prove one of four affirmative defenses to justify the wage
differential: “(1) a seniority system; (2) a merit system; (3) a system which measures earnings by
quantity or quality production; or (4) any other factor other than sex.” 29 U.S.C. § 206(d)(1). Saga
does not raise any affirmative defense in its Memorandum in Support of the Motion for Summary
Judgment. (Doc. No. 34 at 19.) In its reply brief, Saga argues that it established an affirmative
defense, but does not identify which one. (Doc. No. 41 at 2-4.) There are two issues with Saga’s
argument. First, a reply brief is too late to raise an affirmative defense because Wheeler has no
chance to refute it. See Osborne v. Hartford Life and Acc. Ins. Co., 465 F.3d 296, 301 (6th Cir.

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2006) (“We ordinarily do not entertain an argument first made in a reply brief.”) (citing Radvansky
v. City of Olmsted Falls, 395 F.3d 291, 318 (6th Cir. 2005)). Moreover, Saga’s purported
affirmative defense relies on an issue of fact in that it claims Wheeler pre-recorded her show. (Doc.
No. 41 at 4.) However, Wheeler testified that her show was live, not pre-recorded. (Doc. No. 362 at 75.) Any argument that Wheeler had less responsibility because she had a pre-recorded show
is not reading the facts in the light most favorable to Wheeler, making summary judgment
inappropriate.
C. Retaliatory Discharge
Saga also moves for summary judgment on Wheeler’s retaliatory discharge claims. Title
VII and FLSA retaliation claims are analyzed under the same legal framework. Mansfield v. City
of Murfreesboro, 706 F. App’x 231, 235 (6th Cir. 2017). The Court may also analyze THRA
retaliation claims under the same standard. Hajizadeh v. Vanderbilt Univ., 879 F. Supp. 2d 910
(M.D. Tenn. 2012). To prove retaliatory discharge using circumstantial evidence under Title VII,
the FLSA, and the THRA, a plaintiff must prove (1) she engaged in protected activity; (2) the
defendant knew about her protected activity; (3) the defendant took an adverse action against the
plaintiff; and (4) a causal connection existed between the protected activity and the adverse action.
Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (citing Jones v. Johanns, 264 F.
App’x 463, 466 (6th Cir. 2007)). The fourth element is only proven if the plaintiff can show “butfor causation,” which “requires proof that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the employer.” Id. (quoting Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)).
To prove retaliatory discharge in violation of the TPPA, a plaintiff must prove: (1) she was
an employee of the defendant; (2) she refused to participate in or remain silent about illegal

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activity; (3) the defendant terminated the plaintiff’s employment; and (4) the plaintiff’s refusal to
participate in or remain silent about illegal activity was the sole cause of her termination. Williams
v. City of Burns, 465 S.W.3d 96, 111 (Tenn. 2015) (citing Sykes v. Chattanooga Housing
Authority, 343 S.W.3d 18, 26-27 (Tenn. 2011)).
Under any of these laws, Saga only contests whether Wheeler can prove causation. Saga
argues that Wheeler cannot prove causation because it did not terminate Wheeler’s employment
for complaining about gender discrimination, but instead for stating that she would not honor her
twelve-month contract if she receives a more lucrative offer. However, a reasonable jury could
find that Wheeler’s statement that she would consider other offers was part of her protected activity
demanding equal pay for equal work—that is, she only stated she would consider other offers
because she was being paid less than men and felt discriminated against. In other words, Wheeler’s
protected activity consisted of demanding equal pay for equal work, and that she threatened to
leave if Saga did not stop discriminating against her is part of Wheeler’s protected activity. The
fact that Saga admits that this is the reason it terminated Wheeler’s employment shows that a
reasonable jury could find that Wheeler’s protected activity was either the “but-for” or sole cause
of her termination.
The Court will enter an appropriate order.

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

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