Day v. Finishing Brands Holdings, Inc.
Filing
162
ORDER granting in part and denying in part 114 Motion for Reconsideration and 115 Motion for Reconsideration. Signed by Chief Judge J. Daniel Breen on 7/17/15.(Breen, J.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JERRY WAYNE DAY,
Plaintiff,
v.
No. 13-1089
FINISHING BRANDS HOLDINGS, INC.,
Defendant.
_____________________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART THE MOTIONS FOR
RECONSIDERATION
_____________________________________________________________________________
Before the Court are the motions of the Plaintiff, Jerry Wayne Day, and the Defendant,
Finishing Brand Holdings, Inc. (“FB”), requesting reconsideration of portions of the Court’s
May 14, 2015 order granting in part and denying in part FB’s motion for summary judgment.
(Docket Entries (“D.E.”) 114 and 115.) For the reasons discussed below, the motions are
GRANTED IN PART and DENIED IN PART.
I.
Legal Standard
While neither party identifies the procedural basis for their motions, the Court will
construe them as being brought pursuant to Rule 54(b) of the Federal Rules of Civil Procedure,
and Rule 7.3 of the Local Rules for the United States District Court for the Western District of
Tennessee (“Local Rules”). Rule 54 provides that
any order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.
Fed. R. Civ. P. 54(b). District courts also have an inherent power to reconsider, rescind, or
modify an interlocutory order before entry of a final judgment. See Leelanau Wine Cellars Ltd.
v. Black & Red, Inc., 118 F. App’x 942, 945 (6th Cir. 2004) (citing Mallory v. Eyrich, 922 F.2d
1273, 1282 (6th Cir. 1991)). However, motions “‘may not be used to relitigate old matters, or to
raise arguments or present evidence that could have been raised prior to the entry of judgment.’”
Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 C. Wright & A. Miller,
Federal Practice and Procedure § 2810.1 (2d ed. 1995)).
“[R]econsideration of an interlocutory order is only appropriate when one of the
following has occurred: (1) an intervening change in the law; (2) the discovery of new evidence;
or (3) the need to correct clear error or correct manifest injustice.” Bailey v. Real Time Staffing
Servs., Inc., 927 F. Supp. 2d 490, 501 (W.D. Tenn. 2012) (citing Carbon Processing &
Reclamation, LLC v. Valero Mktg. & Supply Co., No. 09-2127, 2010 WL 3925261, at *2 (W.D.
Tenn. Sept. 29, 2010)). “When the parties simply ‘view[ ] the law in a light contrary to that of
[the court], the ‘proper recourse’ is not to file a motion to reconsider but rather to file an appeal.”
Id. at 501–02 (citing Dana Corp. v. United States, 764 F. Supp. 482, 489 (N.D. Ohio 1991)).
Motions for revision or reconsideration of interlocutory orders are also governed by
Local Rule 7.3, which states:
(a)
Application to Non-Final Orders. Before the entry of a judgment
adjudicating all of the claims and the rights and liabilities of all the parties
in a case, any party may move, pursuant to Fed. R. Civ. P. 54(b), for the
revision of any interlocutory order made by that Court on any ground set
forth in subsection (b) of this rule. Motions to reconsider interlocutory
orders are not otherwise permitted.
(b)
Form and Content of Motion to Revise. A motion for revision must
specifically show:
2
(1) a material difference in fact or law from that which was presented to
the Court before entry of the interlocutory order for which revision is
sought, and that in the exercise of reasonable diligence the party applying
for revision did not know such fact or law at the time of the interlocutory
order; or
(2) the occurrence of new material facts or a change of law occurring after
the time of such order; or
(3) a manifest failure by the Court to consider material facts or dispositive
legal arguments that were presented to the Court before such interlocutory
order.
(c)
Prohibition Against Repetition of Argument. No motion for revision may
repeat any oral or written argument made by the movant in support of or in
opposition to the interlocutory order that the party seeks to have revised.
Any party or counsel who violates this restriction shall be subject to
appropriate sanctions, including, but not limited to, striking the filing.
Local Rule 7.3. As neither motion presents new evidence, new material facts, or a change in
law, they must be based on the contention that there was a manifest failure by the Court in
considering material facts or dispositive legal arguments presented to it before ruling on
Defendant’s motion for summary judgment.
II.
A.
Analysis
Plaintiff’s Motion for Reconsideration
The Title VII and THRA retaliation claims related to Day’s termination were dismissed
because he failed to show that his exercise of protected activities were but-for causes of his
August 13, 2012 dismissal. (D.E. 110 at 49–50.) He first maintains that the Court erred by
failing to consider the temporal proximity of the June 28, 2012 and July 6, 2012 complaints to
his August 13, 2012 discharge because the company had opened an investigation into his role in
causing the 2012 budget overrun. (D.E. 114-1 at 4–7.) Alternatively, he insists the Court
mistakenly dismissed the retaliation claims without considering the additional evidence of
3
retaliatory conduct, that, when coupled with the temporal proximity of his numerous complaints,
sufficiently demonstrated but-for causation. (Id. at 1–4.)
Day contends that the Court’s refusal to consider the temporal proximity of his June 28
and July 6, 2012 complaints to his August 13, 2012 termination was contrary to the Supreme
Court’s holding in University of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), and the
Sixth Circuit’s decision in Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497 (6th Cir.
2014), because the investigation was a sham. 1
(Id. at 4–7.) Day’s argument focuses on an
excerpt from Nassar, which references a situation where “an employee . . . knows that he or she
is about to be fired for poor performance . . . . To forestall that lawful action, he or she might be
tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when
the unrelated employment action comes, the employee could allege that it is retaliation,” 133 S.
Ct. at 2532, and Montell, which held that if an employer’s previously contemplated action does
not fit with how the termination actually occurred, then consideration of the temporal proximity
of complaints submitted after an investigation has begun is not forbidden. 757 F.3d at 507. 2
1
Day also cites Thompson v. Quorum Health Res., LLC, 485 F. App’x 783 (6th Cir. 2012) for the position
that an employer’s sham investigation can serve as evidence of a retaliatory motive. (D.E. 114-1 at 5–7.) This case
was not cited in Day’s briefs, and he has not explained why he was unable to reference it until now. The issue in
Thompson was whether there was sufficient evidence for the jury to conclude that the plaintiff was fired in
retaliation for filing a qui tam complaint against the defendant. 485 F. App’x at 793. The plaintiff in Thompson put
forth evidence that the defendant did not have all of the information it needed to conduct a sufficient investigation
before it decided to suspend and terminate him. Id. at 792–93. The court also concluded that the close proximity
between the plaintiff’s protected activity and the adverse employment action (one month) supported the jury’s
inference of a retaliatory motive. Id. By contrast, the Court, in its May 14, 2015 order, concluded that because the
company’s 2012 temporary labor costs greatly exceeded the projections, an investigation was warranted. (D.E. 110
at 49.) Further, the protected activities undertaken by the plaintiff in Thompson all occurred before the company
began its investigation into his code of conduct violations, 485 F. App’x at 792–93, while in this case, the Plaintiff
submitted two additional complaints after the investigation into the budget overrun had already begun.
2
The holdings of both cases can be traced back to the Supreme Court’s directive in Clark Cnty. Sch. Dist.
v. Breeden, 532 U.S. 268 (2001), that “[e]mployers need not suspend previously planned [actions] upon discovering
that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet
definitively determined, is no evidence whatever of causality.” Id. at 272.
4
Based on these cases, Day insists it would be manifestly unjust to allow the company’s
investigation to serve as a shield preventing the Court’s consideration of the June 28 and July 6,
2012 complaints in determining whether he has established but-for causation through temporal
proximity.
(D.E. 114-1 at 6–7.)
However, the Court rejected Day’s argument that the
investigation into the budget overrun was an illegal retaliatory action, and found that it would not
consider the temporal proximity of the June and July 2012 complaints to his termination. (See
D.E. 110 at 46–50.)
Further, even though the Court concluded that there still remained a factual dispute as to
whether his supervisors had an honest belief in terminating Day as it related to his race
discrimination claim, this analysis is distinct from determining whether he established the
causation element of the retaliation claim arising from his termination.
See Harden v.
AlliedBarton Sec. Serv., No. 3:10-00779, 2013 WL 2467714, at *4–8 (M.D. Tenn. June 7, 2013)
(dismissing the plaintiff’s retaliation claim arising from his termination because he failed to
establish causation, while denying the defendant’s motion for summary judgment as to the
plaintiff’s termination claim based on race discrimination because factual issues still remained
concerning whether the defendant’s proffered reasons were pretextual).
As Day seeks to
relitigate issues already decided by this Court, his motion for reconsideration on this ground is
DENIED.
Plaintiff also maintains that the Court failed to consider the additional evidence offered to
buttress his causation showing. (D.E. 114-1 at 1–4.) He cites several Sixth Circuit cases which
hold that certain types of employer conduct may be used to support an inference of causation for
the purposes of setting forth a prima facie retaliation claim. (Id. at 1–2.) These cases were not
cited in either the response or sur-reply.
Regardless, the Court considered this additional
5
evidence and concluded that “[p]laintiff has not put forth any other evidence demonstrating a
causal connection between his protected activities and his termination” aside from the temporal
proximity of the April 24, 2012 complaint to his August 13, 2012 termination. (D.E. 110 at 49.)
Day’s attempt to connect protected activity occurring in July 2011, November 2011, and
April 2012 to his August 13, 2012 termination was rejected by the Court. Specifically, in
considering the allegations contained in the July 13 and 18, 2011 complaints, the Court found
that Day’s hostile work environment claim failed as a matter of law, (Id. at 38–42), and because
he admitted to accessing co-workers’ emails without prior authorization, the company’s decision
to issue a first written warning was also not proof of retaliatory conduct on the part of the
Defendant. (Id. at 24–27.) The Court considered the allegations in the November 11, 2011
complaint and found that because Mitch Hall was not an appropriate comparator, Day’s job title
and pay disparity claims lacked merit. (Id. at 13–22.) The Court further held that the company’s
issuance of a final written warning after Day accessed a supervisor’s work computer, without
prior authorization, was not retaliatory conduct. (Id. at 24–27.) Finally, the Court considered the
April 24, 2012 complaint and found that, besides being too far removed from his August 2012
termination to support an inference of causation based on temporal proximity, (id. at 49), the
allegations were not proof of a hostile work environment. (Id. at 38–42.)
Finally, Day now insists that the discriminatory atmosphere evidence he submitted as
“probative evidence of pretext,” can also be used to “bolster the causation prong of a retaliation
claim.” (D.E. 114-1 at 3.) He relies on Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 393 (6th
Cir. 2009), for the proposition that all types of discriminatory atmosphere evidence can be
probative evidence of pretext, and on Philbrick v. Holder, 583 F. App’x 478, 490 (6th Cir.
6
2014) 3, which held that courts may consider pretext evidence in determining if a plaintiff has
established the causation element of a retaliation claim. (D.E. 114-1 at 3.) In its May 14, 2015
order, the Court reserved ruling on the relevancy of Plaintiff’s discriminatory atmosphere
evidence as to pretext because there still remained factual issues as to whether the company’s
management had an honest belief in the reasons underlying his termination, making
consideration of that issue unnecessary. (D.E. 110 at 37 n.9.) However, to the extent Plaintiff
now contends this evidence also establishes the causation element of the retaliation claim arising
from his termination, the Court will GRANT his motion and consider this evidence.
Rule 56 provides in pertinent part that “[t]he court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court is to “view facts in the record
and reasonable inferences that can be drawn from those facts in the light most favorable to the
nonmoving party.” Burns v. Mahle Engine Components USA, Inc., ___ F. App’x ____, No. 132324, 2015 WL 1427147, at *3 (6th Cir. Mar. 31, 2015) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)). It is not to “weigh evidence, assess credibility of
witnesses, or determine the truth of matters in dispute.” Id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986)). The court must determine “‘whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.’” Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623
(6th Cir. 2014) (quoting Anderson, 477 U.S. at 251–52).
The moving party “has the initial burden of showing the absence of a genuine dispute as
to a material fact.” Automated Solutions Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 520
3
This case was not cited in either of Day’s briefs.
7
(6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the motion is
properly supported, “the opposing party must go beyond the contents of its pleadings to set forth
specific facts that indicate the existence of an issue to be litigated.” Slusher v. Carson, 540 F.3d
449, 453 (6th Cir. 2008) (citation omitted). The nonmoving party must point to evidence in the
record upon which a reasonable finder of fact could find in its favor. Anderson, 477 U.S. at 248.
The genuine issue must also be material; that is, it must involve facts that might affect the
outcome of the suit under the governing law. Id. A court must grant summary judgment “after
adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
To establish a prima facie retaliation claim using circumstantial evidence, as in this case,
a plaintiff is required to show that “(1) he engaged in protected activity, (2) the [defendant] knew
that [the plaintiff] had exercised his civil rights, (3) the [defendant] took an adverse employment
action against [the plaintiff], and (4) there was a causal connection between [the plaintiff’s]
protected activity and the adverse employment action.” Kuhn v. Washtenaw Cnty., 709 F.3d 612,
627–28 (6th Cir. 2013) (citing Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 792 (6th Cir.
2000)). The burden of establishing a prima facie case of retaliation is “minimal; all the plaintiff
must do is put forth some credible evidence that enables the court to deduce that there is a causal
connection between the retaliatory action and the protected activity.” Dixon v. Gonzales, 481
F.3d 324, 333 (6th Cir. 2007) (citing EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th
Cir. 1997)).
If Day makes out a prima facie case, the burden shifts to FB to “produce a legitimate,
non-retaliatory reason for its action.” Montell, 757 F.3d at 504 (citation omitted).
8
If FB
produces such a reason, “the burden shifts back to [Day] to put forward competent evidence from
which a reasonable jury could conclude that the stated reason is merely pretextual.” Id. (citation
omitted). “Ultimately, [Day] will have to ‘establish that . . . [his] protected activity was a but-for
cause of the alleged adverse action by the employer.’” Id. (quoting Nassar, 133 S. Ct. at 2534).
Day offers the allegations of several current and former FB employees, statistical data,
and other incidents as examples of the discriminatory atmosphere at Defendant’s Jackson,
Tennessee facility. He insists that this probative evidence of discrimination is also sufficient to
establish the causation element of his retaliation claim. In evaluating discriminatory atmosphere
evidence, the Sixth Circuit has explained:
Circumstantial evidence establishing the existence of a discriminatory
atmosphere at the defendant's workplace in turn may serve as circumstantial
evidence of individualized discrimination directed at the plaintiff. While evidence
of a discriminatory atmosphere may not be conclusive proof of discrimination
against an individual plaintiff, such evidence does tend to add ‘color’ to the
employer's decisionmaking processes and to the influences behind the actions
taken with respect to the individual plaintiff.
Rachells v. Cingular Wireless Employee Servs., LLC, 732 F.3d 652, 665 (6th Cir. 2013) (quoting
Risch, 581 F.3d at 392). A defendant’s “discriminatory comments can qualify as evidence that a
particular decision was discriminatory if the speaker was ‘in a position to influence the alleged
decision.’” Griffin v. Finkbeiner, 689 F.3d 584, 595 (6th Cir. 2012) (quoting Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 355 (6th Cir. 1998)).
Racially insensitive
statements can be “sufficient evidence of racial animus only if they [had] some connection to the
decision to terminate [the plaintiff].” Id.
These statements could be direct or circumstantial
evidence of discrimination. Id. An example of direct evidence would be a defendant uttering
racially insensitive statements that mentioned a plaintiff by name; while circumstantial evidence
would require the court to consider “the identity of the speaker, the nature and substance of the
9
comments, and the temporal proximity of the comments to the challenged decision.” Id. (citation
omitted). The Griffin court noted that “[i]n certain circumstances, even statements by a nondecisionmaker can be probative evidence of discrimination, such as when the speaker holds a
management position, the statements are commonplace or made in a relevant context (such as a
meeting in which personnel decisions are made), or where other evidence of animus exists.” Id.
at 596 (citing Risch, 581 F.3d at 393).
However, “[e]ven if made by a relevant speaker,
‘[i]solated and ambiguous’ comments will not support a finding of discrimination.” Id. (quoting
Ercegovich, 154 F.3d at 355). While the Griffin court dealt only with discriminatory statements
made by a party, subsequent decisions from this Circuit have expanded the scope of what
qualifies as relevant evidence of a discriminatory atmosphere sufficient to establish pretext, or in
this case, causation.
In Rachells v. Cingular Wireless Employee Servs., LLC, 732 F.3d 652 (6th Cir. 2013), the
Sixth Circuit, in reversing the district court’s grant of summary judgment in favor of the
defendant employer on the plaintiff’s race discrimination claim, held that affidavits from the
plaintiff’s co-workers were sufficient to establish pretext because they provided evidence of a
discriminatory atmosphere. Id. at 655, 669. The plaintiff in Rachells was terminated during a
reduction in force conducted by the defendant. Id. at 657–58. Plaintiff alleged that during his
employment with Cingular, there was “a general atmosphere of hostility toward AfricanAmericans” that came directly from the manager of the plaintiff’s division. Id. at 658. To
satisfy his burden of showing that the defendant’s proffered termination reason was pretextual,
the plaintiff offered affidavits from two former co-workers. Id. at 669. The affidavits stated that
the division manager promoted a Caucasian employee over more qualified minority candidates,
that the promoted Caucasian employee gave lower evaluation scores to minority employees, and
10
the division manager was unresponsive to minority employees’ complaints about those
discriminatory practices. Id. The manager discussed in the co-workers’ affidavits was the same
one who made the ultimate decision to terminate the plaintiff. Id. at 657.
The Rachells court held that the incidents were “probative of pretext ‘because [they] cast
doubt on the basis in fact of Defendant’s proffered legitimate, non-discriminatory reasons.’” Id.
at 669 (quoting Bartlett v. Gates, 421 F. App’x 485, 492 (6th Cir. 2010)). The Rachells court
held that district courts, in determining “whether discriminatory atmosphere evidence is
probative of discrimination in a particular case,” should consider “‘the [actor]'s position in the
[employer's] hierarchy, the purpose and content of the [conduct], and the temporal connection
between the [conduct] and the challenged employment action, as well as whether the [conduct]
buttresses other evidence of pretext.” Id. at 665 (quoting Risch, 581 F.3d at 392). The court
cautioned that “‘evidence of a . . . discriminatory atmosphere is not rendered irrelevant by its
failure to coincide precisely with the particular actors or timeframe involved in the specific
events that generated a claim of discriminatory treatment.’” Id. (quoting Risch, 581 F.3d at 393).
As for “other acts” evidence, in reviewing the district court’s exclusion of testimony from
non-party employees regarding their own experiences dealing with retaliation by the defendant,
the Griffin court held that “[i]n the employment-discrimination-law context, ‘other acts’ evidence
consists of testimony or other evidence of discrimination by the employer against non-party
employees.” 689 F.3d at 598. Expanding on the Supreme Court’s holding in Sprint/United
Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 380–81, 387 (2008), that lower courts should not apply
a per se rule “excluding ‘other acts’ testimony from non-parties alleging discrimination by
supervisors who did not play a role in the challenged decision,” the Griffin court instructed
district courts to consider the “temporal and geographic proximity, whether the various
11
decisionmakers knew of the other decisions, whether the employees were similarly situated in
relevant respects, or the nature of each employee’s allegations” in deciding whether to admit
“other acts” evidence. Id. at 598–99. Deciding the relevance of “other acts” evidence is “a caseby-case determination that ‘depends on many factors, including how closely related the evidence
is to the plaintiff’s circumstances and theory of the case.’” Id. at 598 (quoting Mendelsohn, 552
U.S. at 388.)
In a recent unpublished decision, the Sixth Circuit expanded on the factors laid out in
Griffin and directed district courts analyzing the relevance of “other acts” evidence in the
employment discrimination context to consider:
“(1) whether the evidence is logically or
reasonably tied to the decision made with respect to the plaintiff; (2) whether the same ‘bad
actors’ were involved in the ‘other’ conduct and in the challenged conduct; (3) whether the other
acts and the challenged conduct were in close temporal and geographic proximity; (4) whether
decision makers within the organization knew of the decisions of others; (5) whether the other
affected employees and the plaintiff were similarly situated; and (6) the nature of the employees’
allegations.” Schrack v. R+L Carriers, Inc., 565 F. App’x 441, 445 (6th Cir. 2014) (citing
Griffin, 689 F.3d at 599); Baskin v. Pepsi MidAmerica Co., No. 5:13-CV-00030-TBR, 2015 WL
420210, at *5 (W.D. Ky. Jan. 30, 2015) (characterizing testimony from plaintiff’s co-worker
describing defendant-employer’s discriminatory atmosphere as “other acts” evidence whose
relevance must be analyzed pursuant to the factors set forth in Griffin’s discussion of “other acts”
evidence).
After reviewing cases both before and after Griffin v. Finkbeiner, the Court finds that
Plaintiff has offered evidence that is properly characterized and analyzed as discriminatory
atmosphere evidence, and evidence that is properly characterized and analyzed as “other acts”
12
evidence. Compare Griffin, 689 F.3d at 595–96 with 598–600. Day’s evidence concerning
actions taken by or involving Battle, Schultz, or Kurtz, or actions taken by a non-decisionmaker
who could have influenced the decision to terminate his employment, will be analyzed as
discriminatory atmosphere evidence. See Rachells, 732 F.3d at 669 (holding that the evidence of
discriminatory atmosphere involving the division manager was “probative of individualized
discrimination in the case of [plaintiff’s] termination, because it ‘add[s] “color” to the
employer’s decisionmaking processes and to the influences behind the actions taken with respect
to the individual plaintiff.’”) (quoting Risch, 581 F.3d at 392). Plaintiff’s evidence “consist[ing]
of testimony or other evidence of discrimination by the employer against non-party employees,”
Griffin, 689 F.3d at 598, will be analyzed as “other acts” evidence under the factors set forth in
Schrack v. R+L Carriers, Inc..
As noted, the Court rejected Day’s insistence that Bob Battle’s statements to him and
other employees was evidence of a hostile work environment. (D.E. 110 at 38–42.) After Day’s
July 18, 2011 complaint, the company enrolled Battle in sensitivity training. Day contends that
Battle’s failure to keep up with a journal assignment from that training is evidence of a
discriminatory atmosphere. Even though Battle recommended that Day be terminated, this one
isolated incident occurred nearly eight months before Day’s August 13, 2012 termination, and, to
the HR Manager’s knowledge, Battle completed the program. (Dep. of Betty Schultz at 9, D.E.
75-11.) Battle’s failure to keep up with a journal assignment does not add “color” to the
decisionmaking process to terminate Day’s employment.
Plaintiff avers that the company sanctioned a discriminatory atmosphere in the workplace
because sometime in 2012, he and other FB employees saw a rubber chicken hung from a noose
in the window of an unfinished office addition. The chicken remained in the window for more
13
than a day, but was taken down soon after by Day, and was never seen again. This evidence is
isolated and far removed from the decision to terminate Day. This incident was never connected
to anyone who made, or influenced, the decision to terminate Day’s employment, and is not
evidence of a discriminatory atmosphere.
Day also relies on an incident involving Louis Artis, an assembler in the Jackson,
Tennessee facility, and Danny Selph, another FB employee. As background, sometime in 2012,
Selph gave Artis books written by Bill Cosby and Wellington Boone that he found while
cleaning his shed. Selph thought it would be a nice gesture to give the books to Artis instead of
throwing them away. Artis viewed this interaction differently, testifying that upon receiving
these books he was offended and began to cry because he believed the subject of the books
focused on diminishing who African Americans are culturally.
The Court rejected Artis’s
contention that this incident was racially motivated. Further, Selph played no part in the decision
to terminate Day’s employment. This “other acts” evidence does not support the conclusion that
there was a discriminatory atmosphere.
Next, Plaintiff insists that KKK writing in the men’s restroom is evidence of a
discriminatory atmosphere. Sometime in 2009, Artis saw a drawing of a Ku Klux Klansman and
an African-American man kissing, with the caption “What has the South come to?” in the men’s
restroom at work. Once the offensive cartoon was reported, it was removed and not seen again.
Day has not explained how this incident impacted management’s decision to terminate his
employment in 2012. He failed to demonstrate that the individuals involved in the decision to
terminate his employment were also responsible for placing this drawing in the men’s restroom.
This “other acts” evidence does not support the conclusion that there was a discriminatory
atmosphere.
14
Day also relies on Artis’s discrimination, hostile work environment, and retaliation
claims that were before this Court as evidence of a discriminatory atmosphere. However, the
Court rejected these claims and dismissed the lawsuit. See Artis v. Finishing Brands Holdings,
Inc., No. 13-1090, 2015 WL 1268027 (W.D. Tenn. Mar. 19, 2015). These claims cannot now
support Day’s contention that there was a discriminatory atmosphere at the company’s Jackson,
Tennessee facility.
He also relies on Dawn Partee’s November 5, 2013 EEOC charge as “other acts”
evidence of a discriminatory atmosphere. In her charge, Partee claims she was subjected to race
discrimination, retaliation and a hostile work environment from January 1, 2011 through
September 17, 2013 while employed at FB based on her superiors’ heightened scrutiny of her
actions as compared to Caucasian employees. She recalls a November 2012 incident where she
left the facility to move her vehicle and was followed by an unnamed supervisor who asked what
she was doing. Partee claims she applied for a Distribution Associate position in March 2013,
but was told it was no longer available. She contends that her race was the reason the posting
was removed. Partee states that on May 13, 2013 she was wrongly accused of shipping an
incorrect part and received a reduction of $1.00 per hour in pay. Partee also claims that, after
May 24, 2013, Kurtz changed her job description without putting the changes in writing, which
made it impossible for her to do the job properly. Finally, she alleges that after May 24, 2013,
Kurtz began not including her on informational meetings in which similarly situated Caucasian
employees attended. The Court finds that Partee’s EEOC charge is too attenuated to support
Plaintiff’s contention that he was terminated in retaliation for filing complaints. Partee’s
allegations have no logical connection to the company’s decision to terminate Day. While her
allegations reference Kurtz, almost all of her claims involving Kurtz arise after Day had already
15
been terminated. Day and Partee are not similarly situated, since she was a temporary employee
who worked in Defendant’s warehouse, while Day worked in the office. Her charge is not “other
acts” evidence of a discriminatory atmosphere.
Day next presents Edna Terry’s October 16, 2014 EEOC charge as “other acts” evidence
of a discriminatory atmosphere. Terry claims she was subjected to race, sex, and age
discrimination, retaliation and violations of the Lilly Ledbetter Act from January 1, 2012 through
the present while employed at FB. Terry insists she was promised a pay raise when she took a
position in FB’s warehouse but never received it. She claims that after Day was terminated, she
received verbal and written warnings at a higher rate than similarly situated Caucasian
employees. Terry recalls applying for a Warehouse/Distribution Production Supervisor position
that was later removed because the Defendant had a policy of removing open positions once
African American employees showed interest. She states that a Caucasian male was awarded the
Production Supervisor position in March 2013, and that she was required to train him. Terry
further claims that she is subjected to greater workplace scrutiny as compared to Caucasian
employees, and that she has been exposed to an ongoing pattern of discrimination while at FB.
Terry contends that she is paid less than a similarly situated Caucasian employee in violation of
the Lily Ledbetter Act. Terry’s allegations have no logical connection to whether Day’s
complaints were a but-for cause of his termination. While her allegations do mention Kurtz and
Schultz, most of them arise after Day had already been terminated. She and Day are not similarly
situated, as she is currently employed as a Cell Leader in Defendant’s warehouse, while Day
worked in the office. Finally, their claims are not similar, as Terry alleges claims based on
gender and age discrimination in addition to race discrimination. Terry’s charge is not “other
acts” evidence of a discriminatory atmosphere.
16
Finally, Plaintiff offers former employee Steven Smith’s July 1, 2013 EEOC charge as
“other acts” evidence of a discriminatory atmosphere. Smith claims he was subjected to race and
disability discrimination and retaliation while employed at FB from January 1, 2012 through
May 14, 2013.
During 2012, Smith’s son began experiencing behavioral problems which
required him to take leave from work. He insists that, while he never exceeded his accrued leave
time, he was subjected to negative treatment by his supervisors for taking leave while Caucasian
employees did not receive the same treatment. Smith states that his supervisor subjected him to
a hostile work environment. He alleges that an unnamed employee said “[Smith] won’t make it
back here.” Smith also contends that a co-worker referred to him as “sorry” and that his
workload was increased beyond that of similarly situated Caucasian employees. He related
several incidents where his supervisor was unfair to him as compared to Caucasian employees.
After being demoted, his employment was terminated on May 14, 2013. His claims have no
logical connection to whether Day was terminated because of his complaints. While he mentions
Kurtz once, that incident is not indicative of a discriminatory atmosphere. Many of Smith’s
allegations also occurred after Day had been terminated. He and Day are not similarly situated,
as he worked on the warehouse floor as an assembler, while Day worked in the office. Finally,
their claims are not similar, as Smith alleges claims based on disability discrimination in addition
to race discrimination.
Smith’s charge is not “other acts” evidence of a discriminatory
atmosphere.
Day also highlights the lack of African American supervisors or managers at Defendant’s
Jackson, Tennessee facility as evidence of a discriminatory atmosphere. Day has not provided
any statistical evidence as to how many minorities are qualified to apply for management
positions, or how many management positions have been available at the facility. See Smith v.
17
Leggett Wire Co., 220 F.3d 752, 761–62 (6th Cir. 2000) (finding as inadmissible evidence
related to the percentage of minority supervisors at the defendant’s facilities because the plaintiff
did not establish the number of qualified minorities available in each labor market).
Plaintiff further claims that African American employees are disciplined at a rate of 8:1
as compared to Caucasian employees, and that this suggests a discriminatory atmosphere. This
anecdote is insufficient to demonstrate a discriminatory atmosphere, as “data relied on to support
an inference of discrimination must be from a reliable source and must be of sound
methodology.” Anderson v. Otis Elevator Co., 923 F. Supp. 2d 1032, 1061 (E.D. Mich. 2013)
(citing Barnes v. GenCorp Inc., 896 F.2d 1457, 1466 (6th Cir. 1990)). Day’s contention is
neither, since he did not review every personnel file before reaching his conclusion. (Day Dep.
at 686–90.) Day simply states that during his employment with Defendant, he recalled eight
African American employees receiving disciplinary write-ups as compared to one Caucasian
employee. (Id. at 690–91.) Because the statistical information lacks a sound methodology or
reliable source, it is not evidence of a discriminatory atmosphere.
The evidence offered by Day under the umbrella of “discriminatory atmosphere” does
not support his contention that his exercise of protected activities was a but-for cause of his
termination.
These incidents are, in some cases, too far removed in time and, in others,
irrelevant to the issue of whether the Defendant terminated him in retaliation for filing
complaints. After considering all of this evidence, the Court AFFIRMS the grant of summary
judgment in favor of FB on this claim. 4
4
This decision in no way affects the Court’s consideration of whether any of this evidence would be
admissible as evidence of a discriminatory atmosphere or “other acts” evidence as it may relate to the Plaintiff’s
remaining race discrimination claim arising from his termination.
18
Finally, Day moves for reconsideration of the dismissal of the TPPA and Tennessee
common law retaliatory discharge claims on the same bases as above. (D.E. 114-1 at 1.)
However, to show causation under the TPPA, a plaintiff must put forth evidence that “his
whistleblowing behavior was the sole reason for his termination,” Guy v. Mutual of Omaha Ins.
Co., 79 S.W.3d 528, 537 (Tenn. 2002), and for a common law retaliatory discharge claim, must
show that his whistleblowing behavior was a substantial factor in the employer’s decision to
terminate, which means that it was “an important or significant motivating factor for the
discharge.” Kinsler v. Berkline, LLC, 320 S.W.3d 796, 800 (Tenn. 2010) (internal quotation
marks omitted) (citation omitted).
Plaintiff stated in his responsive brief that, “given the temporal proximity between [his]
complaints and the retaliatory actions taken against him (see Retaliation Section, supra),” the
Court should deny Defendant’s motion for summary judgment because “a reasonable jury could
conclude that Day’s termination was exclusively or substantially caused by his formal and
informal complaints.” (D.E. 75 at 32.) However, temporal proximity is insufficient, on its own,
to establish a prima facie case under either cause of action. See Mason v. Seaton, 942 S.W.2d
470, 473 (Tenn. 1997).
Further, the Court concluded that none of Plaintiff’s evidence of
retaliatory conduct established that his termination was caused solely or substantially by his
whistleblowing activities.
(D.E. 110 at 53.)
Therefore, his request for reconsideration is
DENIED.
B.
Defendant’s Motion for Reconsideration
FB seeks reconsideration of the Court’s decision to deny summary judgment on
Plaintiff’s retaliation claim arising from the July 18, 2011 complaint. (D.E. 115.) The Court
construed Plaintiff’s complaint as alleging two retaliation claims, but did not address the
19
retaliation claim arising from the July 18, 2011 complaint because FB’s briefs focused
exclusively on the retaliation claim arising from Plaintiff’s August 2012 termination. (D.E. 110
at 43–46.)
Defendant insists that it sufficiently moved for summary judgment on this claim when it
stated in its brief that “Day was terminated for lawful and legitimate reasons, irrespective of his
EEOC charge or prior internal complaints to Finishing Brands and Day has not offered any
evidence of pretext.” (D.E. 71-1 at 26–27.) Defendant maintains that it also addressed the July
18, 2011 retaliation claim in its reply, and in an affidavit submitted by Betty Schultz. (D.E. 1151 at 2.) Finally, as the evidence supporting the July 2011 retaliation claim was rejected by the
Court when it dismissed Plaintiff’s discrimination claim, that same result is warranted for his
retaliation claim. (Id.)
The Court stated in its May 14, 2015 order that summary judgment is appropriate only if
the moving party shows that there is no genuine issue of material fact regarding the existence of
an essential element of the nonmoving party’s case on which the nonmoving party would bear
the burden of proof at trial. (D.E. 110 at 46, citing Celotex, 477 U.S. at 322.). As the moving
party, FB had the burden of demonstrating that Plaintiff would be unable to come forth with
evidence establishing a prima facie retaliation claim based on the July 18, 2011 complaint.
In its opening brief, FB stated that “[f]or purposes of this motion only, Finishing Brands
concedes that Day engaged in protected activity and that termination constitutes an adverse
employment action.” (D.E. 71-1 at 24.) The company averred that “Day [could] not establish a
prima facie case of retaliation, however, because he [could not] demonstrate a causal relationship
between his protected activity and his termination.” (Id. at 24–25.) The rest of the briefing
focused on whether Day could establish causation based on temporal proximity because the
20
company was actively investigating his role in the budget overrun, or whether their reasons for
terminating him were pretextual. (Id. at 25–28.) In its reply, FB again conceded that Day had
engaged in protected activity by filing complaints and that his termination was an adverse
employment action. (D.E. 89 at 19.) However, Defendant contended that Plaintiff could not
establish that his protected activities were but-for causes of his termination, and ignored the other
retaliation claims raised in the complaint. (Id. at 19–20.)
Finally, the paragraphs of Schultz’s affidavit cited by Defendant address only whether
Day’s status under the Fair Labor Standards Act was changed from “exempt” to “non-exempt”
following the July 2011 complaint. (D.E. 90-3 ¶¶ 3–5.) However, Plaintiff claimed that after
filing the July 2011 complaint, his supervisors “denied [his] request for things that were
necessary for his job.” (D.E. 1 ¶ 25.) “[B]ecause the threshold for establishing that an action is
materially adverse is substantially less onerous in the retaliation context,” Mys v. Mich. Dep’t of
State Police, 590 F. App’x 471, 480 (6th Cir. 2014) (internal quotation marks omitted) (citation
omitted), and because FB failed to address Plaintiff’s retaliation claim in any meaningful sense,
its motion for reconsideration is DENIED.
III.
Conclusion
The parties have failed to demonstrate that there was a manifest failure by the Court to
consider material facts or dispositive legal arguments.
IT IS SO ORDERED this 17th day of July, 2015.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE
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