Porter v. NIA Association

Filing 60

MEMORANDUM OPINION OF THE COURT. Signed by District Judge William L. Campbell, Jr on 5/2/2019. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARVIN PORTER,
Plaintiff,
v.
NIA ASSOCIATION
NIA ASSOCIATION, INC.,

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NO. 3:17-cv-00482
JUDGE CAMPBELL
MAGISTRATE JUDGE FRENSLEY

Defendants.

MEMORANDUM
Plaintiff Marvin Porter filed this action against Defendant Nia Association (“Nia”),
alleging that Nia discriminated against him on the basis of race and sex in violation of Title VII of
the Civil Rights Act of 1964 (“Title VII”) and the Tennessee Human Rights Act (“THRA”). 1
Before the Court is Defendant’s unopposed motion for summary judgment (Doc. No. 55). For the
following reasons, Defendant’s motion for summary judgment is GRANTED.
Defendant filed a Motion for Summary Judgment and a Statement of Undisputed Facts
(Doc. Nos. 55, 57) on January 2, 2019. According to the Amended Case Management Order filed
on November 14, 2018, any Response was due 28 days after the filing of the Motion (Doc. No.
51.) Plaintiff did not respond to the Statement of Undisputed Facts or to the Motion for Summary
Judgment.

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Plaintiff’s claim for retaliatory discharge in violation of the Tennessee Public Protection Act
was stricken by the Court in response to Defendant’s Motion for Sanctions (Doc. No. 52).
Plaintiff did not file a response to the Motion for Sanctions and the Magistrate Judge found that
sanctions were appropriate because Plaintiff pled the claim with full knowledge that he could not
establish an essential element. (Id.)

I.

ANALYSIS

A. Standard of Review
Summary judgment is appropriate “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). 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 moving party may satisfy this burden by presenting affirmative evidence that negates an
element of the non-moving party’s claim or by demonstrating an absence of evidence to support
the nonmoving party’s case. Id.
In evaluating a motion for summary judgment, the court views the facts in the light most
favorable for the nonmoving party and draws all reasonable inferences in favor of the nonmoving
party. Bible Believers v. Wayne Cty., Mich., 805 F.3d 228, 242 (6th Cir. 2015); Wexler v. White’s
Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003). The Court does not weigh the evidence,
judge the credibility of witnesses, or determine the truth of the matter. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). Rather, the Court determines whether sufficient evidence has been
presented to make the issue of material fact a proper jury question. Id. The mere scintilla of
evidence in support of the nonmoving party’s position is insufficient to survive summary
judgment; instead, there must be evidence of which the jury could reasonably find for the
nonmoving party. Rodgers 344 F.3d at 595.
B. Local Rules
Local Rule 7.01(a)(3) states, in pertinent part:
(3) Response. [A]ny party opposing a motion must serve and file a
memorandum of law in response, and, if necessary to support assertions of fact,
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affidavits and depositions, not later than fourteen (14) days after service of the
motion, except that in cases of a motion for summary judgment, that time shall
be twenty-one (21) days after the service of the motion, unless otherwise
ordered by the Court. The response shall not exceed twenty-five (25) pages
without leave of Court. If a timely response in not filed, the motion shall be
deemed to be unopposed …
Additionally, with respect to Motions for Summary Judgment specifically, Local Rules
56.01(c) and (f) state, in pertinent part:
c. Response to Statement of Facts. Any party opposing the motion for
summary judgment must respond to each fact set forth by the movant by
either: (1) Agreeing that the fact is undisputed; (2) Agreeing that the fact is
undisputed for the purpose of ruling on the motion for summary judgment
only; or (3) Demonstrating that the fact is disputed. Each disputed fact must
be supported by specific citation to the record.
f. Failure to Respond. If a timely response to a moving party’s statement
of material facts, or a non-moving party’s statement of additional facts, is not
filed within the time periods provided by these rules, the asserted facts shall
be deemed undisputed for purposes of summary judgment.
Plaintiff failed to respond to Defendant’s Statement of Undisputed Material Facts.
Pursuant to Local Rule 56.01(f), that failure makes the asserted facts undisputed for the purposes
of summary judgment. Accordingly, there are no genuine issue as to any material fact, and all that
remains to be determined is whether Defendant is entitled to judgment as a matter of law.
It would be inappropriate to grant Defendant’s Motion solely on the ground that Plaintiff
failed to respond. See Stough v. Mayville Community Schools, 138 F.3d 612, 614 (6th Cir. 1998).
The Court must “at a minimum, [] examine the movant’s Motion for Summary Judgment to ensure
that he has discharged [his initial] burden … of demonstrating the absence of a genuine issue as to
a material fact.” (Id. (internal quotations omitted)).

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C. Title VII Discrimination
Plaintiff claims discrimination on the basis of race and sex in violation of Title VII and the
Tennessee Human Rights Act. 2 Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits
an employer from “discriminating against any individual … because of such individual’s race,
color, religion, sex, or national origin.” Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 363 (6th
Cir. 2010) (quoting 42 U.S.C. § 2000e-2(a)(1)).

To demonstrate a prima facie case of

discrimination, a plaintiff must show that: (1) he or she was a member of a protected class; (2) he
or she suffered an adverse employment action; (3) he or she was qualified for the position; and (4)
he or she was replaced by someone outside the protected class or was treated differently than
similarly situated, non-protected employees. Wright v. Murray Guard, Inc., 455 F.3d 702, 707
(6th Cir. 2006).
To defeat a motion for summary judgment in a discrimination case, a plaintiff must present
direct or circumstantial evidence of discrimination. Barrett v. Whirlpool Corp., 556 F.3d 502, 514
(6th Cir. 2009)); see also, Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir. 2009). Direct
evidence is evidence that, if believed, dictates a finding, with no need to draw inferences, that
“unlawful discrimination was at least a motivating factor in the employer’s actions.” Barrett, 556
F.3d at 515. Circumstantial evidence is “proof that does not on its face establish discriminatory
animus, but does allow the factfinder to draw a reasonable inference that discrimination occurred.”
Kyle-Eiland v. Neff, 408 Fed. Appx. 933, 939-40 (6th Cir. 2011).

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The standard for liability is the same under both Title VII and the Tennessee Human Rights Act
(“THRA”). Newman v. Federal Express Corp., 266 F.3d 401, 406 (6th Cir. 2001). Accordingly,
to the extent Plaintiff’s claims under Title VII survive the motion for summary judgment, so do
his claims under the THRA.
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Plaintiff has not submitted any evidence to defeat the motion for summary judgment.
Nevertheless, the Court will consider facts in Defendant’s Statement of Undisputed Facts that
establish certain elements of a prima facie case. First, Defendant does not dispute that Plaintiff is
a member of a protected class. With regard to the second element, an adverse employment action,
Defendant has stated Plaintiff was disciplined on numerous occasions for policy violations and
ultimately fired for failing to register for services under the Employee Assistance Program. (Id. at
¶¶ 39, 45, 51, 56, 57, 63, 67, 71, 77, 84, and 91.) The Court will assume that Plaintiff was qualified
for his position based on the fact that he was offered a raise in March 2017 (Doc. No. ¶ 74.)
To establish the fourth element of a prima facie claim, Plaintiff must provide evidence that
he was replaced by someone outside the protected class or was treated differently than similarly
situated, non-protected employees. Plaintiff has provided no evidence to support this element.
However, Defendant’s Statement of Undisputed Facts establishes: (1) “Plaintiff testified that the
instances in which he believed Caucasian employees received better treatment are based on rumor
and gossip, or that he does not remember the specific instances that form the basis of his belief”
(Doc. No. 57 at ¶ 95); (2) “Plaintiff testified that his sex discrimination claim is based on his
allegation that his supervisors asked him to do more work than other female employees because
he is a man.” (Id. at ¶ 96.); and (3) “Plaintiff admitted that, in the instances he claims he was
discriminated against on the basis of sex, a female employee was with him to also ‘handle whatever
was needed.’” (Id. at ¶ 97.)
To survive a motion for summary judgment, Plaintiff cannot rely on conjecture or
conclusory accusations. Arendale, 519 F.3d at 605 (citing Lewis v. Phillip Morris Inc., 355 F.3d
515, 533 (6th Cir. 2004) (“In order to survive a motion for summary judgment, the non-moving
party must be able to show sufficient probative evidence [that] would permit a finding in [his]

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favor on more than mere speculation, conjecture, or fantasy.”). In Arendale, the Sixth Circuit held
that plaintiff had not presented evidence sufficient to survive a motion for summary judgment
when he “presented nothing more than his own subjective opinion” of defendant’s motivation.
519 F.3d at 601.
Plaintiff has presented no evidence in support of his claim and the “evidence” taken from
Defendant’s undisputed facts consists entirely of unsubstantiated conclusory accusations.
Accordingly, the Court finds that Plaintiff has failed to meet his burden to establish a prima facie
claim of discrimination, and the Motion for Summary Judgment on the claim of discrimination is
GRANTED.
D. Title VII Retaliation
Plaintiff alleges Defendant terminated him in retaliation for filing a Charge against it with
the EEOC and a Complaint with the Court. Plaintiff brings this claim under Title VII and the
Tennessee Human Rights Act. 3 To establish a prima facie case of retaliation in violation of Title
VII, a plaintiff must show: (1) he engaged in protected activity; (2) the defendant knew of
plaintiff’s activity; (3) thereafter, the defendant took an adverse employment action; and (4) there
was a causal connection between the protected activity and the adverse employment action.
Arendale v. City of Memphis, 519 F.3d 587, 606 (6th Cir. 2008). A plaintiff must raise an inference
that his “protected activity was the likely reason for the adverse employment action.” Simpson v.
Vanderbilt Univ., 359 F. App’x 562, 571 (6th Cir. 2009). Plaintiff must “put forth some evidence
to deduce a causal connection between the retaliatory action and the protected activity [which

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Claims under THRA are evaluated using the same framework as claims under Title VII. See
supra Note 2.
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requires] the court to draw reasonable inferences from that evidence, providing it credible.” EEOC
v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997).
Plaintiff has not submitted any evidence in support of his claim for retaliation. From
Defendants undisputed statement of facts and the record in this case, it is evident that Plaintiff filed
an EEOC charge on April 6, 2016 and the complaint in this case on March 2, 2017. (Doc. No. 57
at ¶ 102; Doc. No. 1.) He was disciplined October 2016, November 2016, and July 2017, and fired
in August 2017. (Id. at ¶¶ 62, 63, 71, 78, and 91.) Plaintiff did not provide any evidence, nor is
there any evidence in the record, that these disciplinary actions or termination were causally
connected to the alleged protected activity. Accordingly, Plaintiff has not established a prima facie
case of retaliation. Though not required because Plaintiff failed to establish a prima facie case of
retaliation, the Court notes that Defendant has offered legitimate, non-retaliatory reasons for the
disciplinary actions and dismissal, and there is no evidence that these reasons are pretextual.
II.

CONCLUSION

For the reasons stated, Plaintiff has failed to present evidence sufficient to defeat the motion
for summary judgment. Defendant’s Motion for Summary Judgment is GRANTED on all claims.
It is so ORDERED.
_______________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

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