Kilpatrick v. HCA Human Resources LLC et al
Filing
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MEMORANDUM OPINION OF THE COURT. Signed by District Judge William L. Campbell, Jr on 3/1/2019. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jm)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MONTRELL KILPATRICK,
Plaintiff,
v.
HCA HUMAN RESOURCES, LLC
Defendant.
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NO. 3:17-cv-00670
JUDGE CAMPBELL
MAGISTRATE JUDGE NEWBERN
MEMORANDUM
Pending before the Court is Defendant’s Motion for Summary Judgment (Doc. No. 50).
The Plaintiff responded to the Motion (Doc. No. 59) and Defendant filed a reply (Doc. No. 67).
For the reasons discussed below, the Motion for Summary Judgment is GRANTED.
I.
FACTUAL BACKGROUND 1
Montrell Kilpatrick is a self-described “homosexual black man.” (Doc. No. 59 at 1.) He
worked for HCA Human Resources, LLC (“HCA”), as a recruitment administrator from
November 2014 until March 2016. Mr. Kilpatrick claims of discrimination arise out of events
taking place during the three months from December 2015 to March 2016. He agrees that he did
not experience any discrimination at HCA until December 2015. (Doc. No. 60 at ¶ 4.)
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Most of Plaintiff’s responses to Defendant’s Statement of Material Facts (Doc. No. 60) fail to
comply with the Local Rule 56.01(c) in two major respects. That rule provides a responding
party three response options. Most of Plaintiff’s responses are non-responsive and instead
appear to respond to a statement as Plaintiff wishes it was written or are used as a vehicle to
argue at length issues beyond the short statements provided by Defendant. Local Rule 56.01(c)
allows the responding party to submit additional statements of material facts, to which the
moving party must respond. Plaintiff did not submit additional facts. Accordingly, the Court
will disregard Plaintiff’s responses to certain of Defendant’s statements as violative of Local
Rule 56.01(c). In the interest of clarity, Defendant’s responses to statements numbered 3, 5-17,
19, and 20, do not comply with Local Rule 56.01. Thus, the Court will deem these statements
admitted for the purpose of ruling on Defendant’s summary judgment motion.
On or about December 17, 2015, Mr. Kilpatrick was called to a meeting with HCA’s VP
of Labor Relations, Thomas Beck. Mr. Beck told Mr. Kilpatrick that two sexual harassment
complaints had been lodged against him via the company’s anonymous hotline. In defense of
these complaints, Mr. Kilpatrick disclosed that he is homosexual. (Doc. No. 60 at ¶ 6.) Mr.
Kilpatrick contends that Mr. Beck disseminated information about his sexual orientation to others
in the office and that thereafter, people treated him differently. (Id.)
Mr. Kilpatrick alleges that following the meeting with Mr. Beck he received his first
written discipline, which was from another supervisor and was unrelated to the sexual harassment
complaints. (Id.)
He claims that the discipline was unwarranted because it reflected past
performance problems that had been corrected and that the problem was not written up when the
problems occurred, only after he disclosed his sexuality. (Id.)
Between the end of December 2015 and March 2016, when he was terminated, Mr.
Kilpatrick claims that he was subjected to a number of harassing comments, notes, “gifts,” and
other negative treatment at work that he attributes to be a direct result of the disclosure of his
sexual orientation. (Doc. No. 60 at ¶¶6-7.) He says that he received a Christmas gift of pink nail
polish, a nail file, and bath bombs and, on a separate occasion, a pair of pink sunglasses were left
on his desk. (Id.) He had at least four post-it notes with Bible verses telling him he was going to
hell left on his desk. (Id.) Mr. Kilpatrick believes that the notes were from his director because
they were written on paper from her personalized note pad. When the employees in his department
changed seats, Mr. Kilpatrick was removed from the area with his team and assigned a seat near
the storage area. (Id.)
HCA has a tuition assistance program for employees.
The required content of a
reimbursement application is in dispute. The reimbursement request form states that an application
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form must be approved before the employee registers for classes and that once a class is complete,
employees were to submit evidence of a passing grade and receipts to get reimbursed. (Doc. No.
50, Ex. 1 at 165).
On December 30, 2015, Mr. Kilpatrick submitted requests for tuition
reimbursement for classes he took in the fall of 2015; his request was denied because he did not
get approval prior to registration. (Doc. No. 52 at ¶ 8.) Mr. Kilpatrick asked HCA to reconsider
his request. While reconsidering his untimely reimbursement request, HCA also reviewed his
previous reimbursement requests. (Doc. No. 52 at ¶¶ 11-12.) Although the previous requests had
already been approved, they identified some discrepancies in course start and end dates and
questioned the cost of one of his classes from the spring semester. (Id.) Mr. Kilpatrick claims that
this intense scrutiny was the result of his disclosure, only weeks earlier, of his sexual orientation.
During January and February, HCA asked Mr. Kilpatrick for more information about his classes
and for an “official” transcript. (Id. at ¶17.) Mr. Kilpatrick provided information, but not always
within the time or in the format requested. (Id. at ¶¶ 13-17.) At one point he sent a screenshot of
an account page belonging to another student at a different university with the student’s name
removed. (Id. at ¶¶ 12-15.) Although Mr. Kilpatrick argues he did not intend to represent that the
screenshot was his own account, only to show that the formatting was different between the two
universities, HCA took the view that he was manipulating documents and not providing fulsome
information in response to their requests. (Doc. 60 at ¶ 11.)
On March 1, 2016, HCA placed Mr. Kilpatrick on an “investigatory suspension” based on
his failure to provide all of the information requested in the time and format that HCA demanded
it. (Doc. No. 52 at ¶ 17.) On March 9, 2016, Mr. Kilpatrick was fired. (Doc. No. 52 at ¶ 20; Doc.
No. 65 at ¶ 16.) HCA asserts that the termination was based entirely on concerns about his
response to the investigation into his reimbursement requests and not his job performance. (Doc.
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No. 52 at ¶ 20.) On March 15, 2016, Mr. Kirkpatrick filed a complaint with the EEOC alleging
discrimination based on race, sex, and sexual orientation. (Doc. No. 50, Ex. 1 at 151.)
On May 9, 2016, Mr. Kirkpatrick began work for Brookdale Senior Living. In January
2017, after working at Brookdale for about eight months, Mr. Kirkpatrick was fired, allegedly after
Brookdale received an anonymous phone call disclosing that his employment dates at HCA did
not match those on his Brookdale application.
Plaintiff filed this action against HCA alleging discrimination on the basis of race and sex
in violation of Title VII of the Civil Rights Act of 1984, retaliation, tortious interference with
contract, and tortious interference with business relations, and intentional infliction of emotional
distress. HCA moved for summary judgment on all claims.
II.
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,
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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.
III.
ANALYSIS
A. Sex Discrimination and Hostile Work Environment in Violation of Title VII
Mr. Kilpatrick claims that immediately after he disclosed his sexual orientation to his
supervisors he was subjected to a hostile work environment: he was written up for past infractions,
his previously approved tuition reimbursement requests were investigated, harassing gifts were
placed on his desk, and notes with Bible verses stating he would go to hell were left on his desk.
All of this took place in the two and a half months between the time that Mr. Kilpatrick disclosed
his sexuality and he was terminated. Mr. Kilpatrick stated that prior to this time, he was not subject
to any discriminatory behavior at HCA and he believes that these actions were a direct result of
disclosing his sexual orientation.
HCA denies that these incidents were motivated by
discriminatory animus and further challenges whether certain acts are attributable to HCA. Before
considering whether the parties present a dispute of material fact that must be decided by a jury,
the Court must determine that Mr. Kilpatrick has a cognizable claim under Title VII.
The Court begins, as it must, with the statutory text. Title VII of the Civil Rights Act of
1964 prohibits an employer from discriminating against an individual “with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Mr. Kilpatrick asserts claims
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for discrimination and hostile work environment based on his sexual orientation. Title VII does
not expressly include sexual orientation as a protectory category. Whether discrimination based
on sexual orientation falls instead within the statutory language prohibiting discrimination based
on sex is a question that has produced conflicting decisions among the circuits. The Supreme
Court has held that Title VII includes prohibition of discrimination based on “sex stereotypes,”
such as not being feminine or masculine enough. Price Waterhouse v. Hopkins, 490 U.S. 228, 251
(1989). Since the Price Waterhouse ruling, some courts have expanded the understanding of
discrimination based on sex to include discrimination based on sexual orientation, reasoning that
discrimination based on sexual orientation is result of sex-stereotyping. See e.g. Hively v. Ivy Tech
Cmty Coll of Ind., 853 F.3d 339, 345 (7th Cir. 2017) (en banc) (holding a person alleging
employment discrimination based on sexual orientation has put forth a claim of sex discrimination
for Title VII purposes); Zarda v. Altitude Exp., Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) (holding
that sexual orientation discrimination is motivated at least in part by sex and is a subset of sex
discrimination for purposes of Title VII), petition for cert. filed (U.S. May 29, 2018)(No. 17-1623).
The Equal Opportunity Claim Commission (“EEOC”) has also determined that sex discrimination
“includes discrimination based on an applicant or employee’s gender identity or sexual
orientation” reasoning that sexual orientation discrimination necessarily involved treating workers
less favorably because of their sex and that sexual orientation is “inherently a ‘sex-based’
consideration.” EEOC Appeal No. 0120133080 (July 15, 2015).
The Sixth Circuit, however, is among those courts continuing to hold that sexual orientation
does not form a basis for a claim of sex discrimination under Title VII. In Vickers v. Fairfield
Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006), the Court held that a plaintiff could not pursue a
claim for impermissible sex stereotyping on the ground that his perceived sexual orientation failed
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to conform to gender norms because he did not allege that he was discriminated against for failing
“to conform to traditional gender stereotypes in any observable way at work.” See also, Gilbert v.
Country Music Ass’n., Inc., 432 F. Appx. 516, 519 (6th Cir. 2011); Tumminello v. Father Ryan
High School, Inc., 678 Fed. Appx. 281 (6th Cir. 2017). Other circuits have reached the same
conclusion. See, Bostock v. Clayton Cty. Board of Commissioners, 723 Fed. Appx. 964 (11th Cir.
2018) (per curiam) (“discharge for homosexuality is not prohibited by Title VII”); rehearing en
banc denied, 894 F.3d 1335 (11th Cir. 2018); petition for cert. filed (U.S. May 25, 2018)(No. 171618).
Plaintiff correctly notes that since the EEOC decision, the Sixth Circuit favorably cited the
Seventh Circuit’s reasoning in Hively. See R.G. & G.R. Funeral Homes, Inc., 884 F.3d 560, 575
(6th Cir. 2018) (“[T]he Seventh Circuit determined that Title VII prohibits discrimination on the
basis of sexual orientation – a different question than the issue before this court – by asking
whether the plaintiff, a self-described lesbian, would have been fired ‘if she had been a man
married to a woman … and everything else had stayed the same.’”)(citing Hively, 853 F.3d 339).
However, in that decision, the Sixth Circuit expressly noted that it would not – and could not –
overrule the Vickers decision. Id. (“[A] panel of this Court cannot overrule the decision of another
panel when the prior decision constitutes controlling authority” (internal quotations omitted). Id.
at 580. In R.G., the Court unequivocally left the Vickers decision intact. Vickers remains
controlling authority with respect to Title VII claims based on the basis of sexual orientation and
absent a change in law from the Sixth Circuit or the Supreme Court, this Court is obligated to
follow that precedent.
Mr. Kilpatrick did not allege that he did not conform to traditional gender stereotypes in
any observable way at work. To the contrary, no one at work knew that he is homosexual until
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the December 2015 meeting when he told them. Therefore, Mr. Kilpatrick has not stated a
cognizable claim for discrimination on the basis of sex under Title VII. Defendant’s motion for
summary judgment on the claims of sex discrimination and hostile work environment is granted.
B. Racial Discrimination and Hostile Work Environment in Violation of Title VII
Although Plaintiff’s argument is weighted heavily toward his claims of discrimination
based on sexual orientation, Mr. Kilpatrick also alleges racial discrimination and a hostile work
environment due to race. In support of these claims, Mr. Kilpatrick gives examples of various
statements made by his supervisors which he claims are evidence of racial discrimination or form
the basis of a hostile work environment. Plaintiff claims that Patricia Contreras, a supervisor, told
him and a black co-worker, “I’m sure you guys know how to fry some chicken.” (Doc. No. 50, Ex.
1 at 69-72.) Tina Norris, who worked in human resources at HCA, once commented, “What a
fancy car. I need to be doing what you do on the side.” Plaintiff thought that this comment was
racially motivated and implied that he must either be spending the tuition money on a nice car or
that he must be dealing drugs. (Doc. No. 67 at 7-9.) He also claims, without a cite to the record,
that supervisors referred to him on at least two occasions as “you people.” He says that Ms. Norris
told him when he called the hotline to make a complaint to human resources that HCA “has to take
care of our managers.” 2 Mr. Kilpatrick claims that the managers are all white with the implication
that “taking care of the managers” indicated racist motivation. (Doc. No. 60 at ¶ 3.) Plaintiff
concludes, based on these statements, that the handling and suspicion about his application for
tuition reimbursement was racially motivated and ultimately, that he was terminated because of
his race.
Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment (Doc.
No. 59 at 20) cites to the Kilpatrick Deposition at 206, but this page of the deposition transcript
was not filed as an exhibit.
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1. Racial Discrimination
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, nonprotected 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).
Plaintiff has satisfied the first two elements of a prima facie case. He is a member of a
protected class and was terminated from his job at HCA. Plaintiff provided evidence that he met
performance objectives, and HCA agreed that job performance did not contribute to Mr.
Kilpatrick’s termination. (Doc. No. 61, Ex. 4; and Doc. No. 52 at ¶ 6.)
To satisfy the fourth element, a plaintiff must either provide evidence that he was replaced
by someone outside the protect class or provide evidence that he was treated differently than
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similarly situated non-protected employees. Mr. Kilpatrick has not provided evidence to support
either of these scenarios. He does not claim to have been replaced by someone outside the
protected class. To the contrary, HCA avers, and Mr. Kilpatrick does not contest, that roughly half
of his department was the same race as Mr. Kilpatrick. (Doc. No. 55 at ¶ 3.) He has not provided
any evidence that he was treated differently than similarly-situated, non-protected employees.
To establish that a non-protected employee is an appropriate comparator, “the plaintiff
[must] demonstrate that he or she is similarly-situated to the non-protected employee in all relevant
respects.” Dickins v. Interstate Branch Corp., 384 Fed. Appx. 465, 468 (6th Cir. 2010) (quoting
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998)). In the disciplinary
context, this requires that the plaintiff and the proposed comparator have engaged in acts of
“comparable seriousness.” Id. (quoting Clayton v. Meijer, Inc., 281 F.3d 605, 611 (6th Cir. 2002)).
The Court may consider the egregiousness of the conduct, the context of the conduct,
management’s knowledge of the conduct, the comparator’s disciplinary history relative to the
plaintiff, and the impact of the comparator’s misconduct relative to the plaintiff’s. See Oliver v.
St. Luke’s Dialysis, LLC, 491 Fed. Appx. 586, 588 (6th Cir. 2012); Barry v. Nobel Metal
Processing, Inc., 276 Fed. Appx. 477, 483 (6th Cir. 2008); Mazur v. Wal-Mart Stores, Inc., 250
Fed. Appx. 120, 127 (6th Cir. 2007). To make that determination, courts consider whether the
individuals “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.” Id. (quoting Ercegovich, 154 F.3d at 352).
Mr. Kilpatrick has not provided any evidence that similarly situated non-protected (i.e.
non-black) employees were treated differently. HCA fired Mr. Kilpatrick due to concerns about
his requests for tuition reimbursement and the subsequent investigation and he must, therefore,
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present evidence that non-protected employees who applied for education reimbursement and had
comparable problems with their applications were treated more favorably. Mr. Kilpatrick has not
presented any evidence that non-protected employees in similar circumstances were treated more
favorably, and therefore has not met his burden as to the fourth element. For these reasons, the
Motion for Summary Judgment on the claim of racial discrimination is granted.
2. Hostile Work Environment
Mr. Kilpatrick also asserts a claim of hostile work environment because of race under Title
VII. To survive a motion for summary judgment a plaintiff must provide proof that (1) plaintiff
belongs to a protected class; (2) he was subject to unwelcome harassment; (3) the harassment was
based on race; (4) the harassment affected a term, condition, or privilege of employment; and (5)
the defendant knew or should have known about the harassment and failed to act. Phillips v. UAW
Int’l., 854 F.3d 323, 327 (6th Cir. 2017).
On summary judgment, the Court looks at the totality of the alleged race-based harassment
to determine whether it was “sufficiently severe to alter the conditions of [his] employment and
create an abusive working environment.” Id. (citing Williams v. CSX Transp. Co., Inc., 643 F.3d
502, 512 (6th Cir. 2011)). “In determining whether an actionable hostile work environment claim
exists, we look to all the circumstances, including the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Id. (citing Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)). “Isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Thus, occasional offensive utterances
do not rise to the level required to create a hostile work environment because, “[t]o hold otherwise
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would risk changing Title VII into a code of workplace civility.” Phillips, 854 F.3d at 327 (citing
Grace v. USCAR, 521 F.3d 655, 679 (6th Cir. 2008)).
The Sixth Circuit has found that even offensive and bigoted conduct is insufficient to
constitute a hostile work environment if it is neither pervasive or severe enough to satisfy the
claim’s requirements. See e.g. Phillips, 854 F.3d at 327 (no hostile work environment when
defendant made several racially offensive statements over two years); Reed v. Procter & Gamble
Mfg. Co., 556 Fed. Appx. 421, 432 (6th Cir. 2014) (no hostile work environment when plaintiff
was subjected to race-based comments and his supervisor stood behind him and made a noose out
of a telephone cord).
Mr. Kilpatrick identified several statements allegedly made by supervisors or other
management at HCA that he deemed racially offensive. The statements, if proven, were neither
pervasive enough nor severe enough to create a hostile work environment. The Sixth Circuit has
established a high bar for what amounts to actionable discriminatory conduct under a hostile work
environment theory. The conduct alleged here does not clear that bar. For these reasons,
Defendant’s Motion for Summary Judgment on Plaintiff’s Title VII hostile work environment
claim is granted.
C. Retaliation in Violation of Title VII for Filing an EEOC Complaint
After he was suspended without pay on March 10, 2016, Plaintiff filed an EEOC charge
against HCA on March 15, 2016, alleging discrimination based on race and gender and retaliation.
On May 9, 2016, Plaintiff began new employment at Brookdale Senior Living. Approximately,
eight months later, in January 2017, Brookdale terminated Plaintiff’s employment after receiving
an “anonymous” phone call drawing attention to an alleged discrepancy in Mr. Kilpatrick’s
employment application regarding the date he left HCA. (Doc. No. 50, Ex. 1 at 28-35.)
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Section 704(a) of Title VII of the Civil Rights Act of 1964 makes it unlawful “for an
employer to discriminate against any of his employees or applicants for employment” who have
availed themselves of Title VII’s protections. 42 U.S.C. § 2000e-3(a). To establish a prima facie
case of retaliation, plaintiff must establish that: (1) he engaged in an activity protected by Title
VII; (2) the exercise of his civil rights was known to the defendant; (3) thereafter, the defendant
took an employment action adverse to the plaintiff; 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). For purposes of section 704(a), an “employment action” can be one
directed toward a former employee. Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (holding that
a former employee stated a claim for retaliation under Title VII when his previous employer gave
him a negative reference in retaliation for his having filed an EEOC charge). To establish
causation, Plaintiff must “proffer evidence sufficient to raise the inference that his protected
activity” was the reason for his termination. Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007).
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]
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.
Here, Mr. Kilpatrick has established the first two elements of a retaliation claim. He
engaged in an activity protected by Title VII when he filed a charge of discrimination with the
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EEOC and HCA knew about the EEOC charge. (Doc. No. 51, Ex. 1 at 151-52.) In support of the
remaining two elements, however, Mr. Kilpatrick has not provided any evidence other than his
own conjecture. Mr. Kilpatrick claims that the human resources officer at Brookdale received an
anonymous phone call about his employment application. (Id. at 28-35.) Mr. Kilpatrick never
learned who made the phone call, where they worked, or why they made the phone call. (Id.)
Plaintiff provides no evidence that the anonymous phone call to Brookdale originated with HCA
or that the anonymous phone call was made in retaliation for filing an EEOC charge ten months
prior. His allegations rest entirely on conjecture. Mr. Kilpatrick’s has not provided evidence of
retaliation sufficient to survive a motion for summary judgment. For these reasons, Plaintiff’s
Motion for Summary Judgment on the claim of retaliation is granted.
D. Tortious Interference with Contract
On the basis of the “retaliatory” phone call that Plaintiff believes was from HCA, Mr.
Kilpatrick also brings claims for tortious interference with contract and tortious interference with
business relationship. As with the claim for retaliation, for these claims to survive a motion for
summary judgment, Plaintiff must present more than a scintilla of evidence based on more than
mere speculation, conjecture, or fantasy to support his claim.
To establish tortious interference with contact or tortious interference with business
relationship, as with all tort claims, the plaintiff must provide evidence that an action by the
defendant was the proximate cause of an injury to plaintiff. See TSC Indus., Inc., v. Tomlin, 743
S.W. 2d 169, 173 (Tenn. Ct. App. 1987) (elements of tortious interference with contract include a
“malicious act” that is the “proximate cause” of a breach of contract); Trau-Med of America, Inc.
v. Allstate Inc. Co., 71 S.W.3d 691, 701 (Tenn. 2002) (tortious interference with business
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relationships requires both improper motive and improper means of interference with a known
business relationship, causing harm to the plaintiff).
Plaintiff has provided no evidence whatsoever, other than his own supposition, that HCA
did anything that caused him to be terminated from Brookdale. He has only his own speculation
that the phone call originated with HCA. Even if Mr. Kilpatrick knew that HCA made the phone
call, which he has testified that he does not, his recounting the content of the call as relayed to him
by a third-party is hearsay that cannot be relied upon by the Court on a motion for summary
judgment. See Hoover v. Walsh, 682 F.3d 481, 491 n.34 (6th Cir. 2012) (noting that a court cannot
rely on inadmissible hearsay at summary judgment); Fed. R. Civ. P. 56(c)(4) (stating that affidavits
used to support motions for summary judgment “must be made on personal knowledge”).
Because Mr. Kilpatrick has not provided evidence that HCA caused his termination from
Brookdale, his claims for tortious interference with contact and tortious interference with business
relationship cannot survive the motion for summary judgment and Defendant’s Motion for
Summary Judgment on these claims is granted.
E. Intentional Infliction of Emotional Distress
To establish a claim for intentional infliction of emotional distress a plaintiff must show
that the defendant’s conduct was (1) intentional or reckless; (2) so outrageous that it is not tolerated
by civilized society, and (3) resulted in serious mental injury to the plaintiff. Cossairt v. Jarrett
Builders, Inc. 292 F. Supp. 3d 779, 788 (M.D. Tenn. 2018) (citing Rogers v. Louisville Land Co.,
367 S.W.3d 196, 205 (Tenn. 2012)). Tennessee has adopted the standard for outrageous conduct
described in the Restatement (Second) of Torts. Bain v. Wells, 936 S.W.2d 618, 622 n. 3 (Tenn.
1997). “Liability has been found only where the conduct has been so outrageous in character, so
extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious and
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utterly intolerable in a civilized community.” Restatement (Second) of Torts, Section 46, Comment
D.
Mr. Kilpatrick’s claim for intentional infliction of emotional distress rests on the basis of
the following actions by HCA: (1) attempted discipline for sexual harassment of two women; (2)
someone leaving pink sunglasses, pink nail polish, Bible verses and a Bible on his desk; and (3)
calling a subsequent employer to interfere with Plaintiff’s new job. As a result of these actions
Mr. Kilpatrick claims that he has depression, sees a therapist, and is taking anti-depressant
medication. (Defendant Response to Statement of Facts at ¶21). The Court need not decide
whether Mr. Kilpatrick has provided evidence of a “serious mental injury” because he has failed
to establish the outrageousness element.
Plaintiff’s burden to demonstrate outrageous conduct “is not an easy burden to meet.”
Brown v. Mapco Exp., Inc., 393 S.W.3d 696, 703 (Tenn. Ct. App. 2012). Liability for the
intentional infliction of emotional distress does not extend to mere insults and indignities. Bain,
936 S.W.2d at 622. Cases finding intentional infliction of emotion distress involve conduct that
is much more egregious than that which occurred here. See e.g., Johnson v. Woman’s Hospital,
527 S.W.2d 133 (Tenn Ct. App. 1975) (mother shown her deceased baby preserved in a
formaldehyde jar); Pollard v. E.I. DuPont De Nemours Inc., 412 F.3d 657, 664 (6th Cir. 2005)
(years of mistreatment, including vile insults, sabotage, hostility, that escalated so that the plaintiff
feared for her physical safety). Even if Mr. Kilpatrick did state a claim for discrimination,
discriminatory conduct does not automatically reach the level of outrageousness required for the
intentional infliction of emotional distress. See Arnett v. Domino’s Pizza I, LLC, 124 S.W.3d 529,
540 (Tenn. Ct. App. 2003). As a matter of law, the facts alleged, even if proven, are insufficient
to support an intentional infliction of emotion distress claim. For these reasons Defendant’s
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Motion for Summary Judgment on the claim of intentional infliction of emotional distress is
granted.
F. 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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