Artis v. Finishing Brands Holdings, Inc.

Filing 96

ORDER granting 47 Motion for Summary Judgment. Signed by Chief Judge J. Daniel Breen on 3/19/15.(jmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
LOUIS ARTIS,
Plaintiff,
v.

No. 13-1090

FINISHING BRANDS HOLDINGS, INC.,
Defendant.
_____________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
_____________________________________________________________________________
Introduction
Before the Court is Defendant, Finishing Brands Holdings, Inc.’s (“FB”), motion for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket Entry
(“D.E.”) 47.) Plaintiff, Louis Artis (“Artis”), filed a response to which FB replied. (D.E. 56,
84.)

Plaintiff also submitted a sur-reply. (D.E. 88.)

For the reasons discussed below,

Defendant’s motion is GRANTED.
Evidentiary Matters
A.

Plaintiff’s Objections to Defendant’s Statement of Undisputed Material Fact
Plaintiff objects to the conciseness of several paragraphs found in Defendant’s Statement

of Undisputed Material Fact (“SUMF”). (See D.E. 57 ¶¶ 4, 6–10, 12, 19–20, 23–24, 32–35, 38,
40–45, 47, 60.) In this district, the party moving for summary judgment, “[i]n order to assist the
Court in ascertaining whether there are any material facts in dispute,” is required to provide “a
separate, concise statement of the material facts as to which the moving party contends there is
no genuine issue for trial.” LR 56.1(a), Local Rules of the United States District Court for the

Western District of Tennessee (“Local Rules”). Any objections to evidentiary materials offered
in support of, or in opposition to a summary judgment motion, must be included in the response
and identify the rule of evidence or other authority that establishes that evidence’s
inadmissibility. See Local Rule 56.1(e).
The local rules, and opinions from this district, do not define “concise statement.”
However, in denying a plaintiff’s motion to strike a portion of the defendant’s statement of
undisputed material fact on conciseness grounds, the United States District Court for the Middle
District of Tennessee held that the defendant did not violate that district’s similarly-worded local
rule because the employment dispute at issue involved several incidents occurring over a period
of time. See Thompson v. Davidson Transit Org., 740 F. Supp. 2d 938, 938–39 (M.D. Tenn.
2010).

Similarly, this case involves allegations of employment discrimination covering an

extended period of time. Defendant’s SUMF is not unnecessarily lengthy—it is ten pages long,
and consists of sixty numbered paragraphs that address the relevant facts underlying this lawsuit.
Plaintiff’s objections are OVERRULED.
Artis also alleges that Defendant’s SUMF ¶ 48 is inadmissible. (D.E. 57 ¶ 48.) The
SUMF states that the Employment Opportunity Commission (“EEOC”) dismissed Plaintiff’s
EEOC charge, finding no evidence of discrimination. “A trial court has the discretion to allow
an EEOC determination into evidence, even though these determinations are not per se
admissible in all civil rights suits.” Blakely v. City of Clarksville, 244 F. App’x 681, 683 (6th
Cir. 2007); Alexander v. CareSource, 576 F.3d 551, 562 (6th Cir. 2009). While the EEOC’s
determination is not material to the Court’s resolution of this matter, Plaintiff’s objection is
OVERRULED.
B.

Defendant’s Objections to Plaintiff’s Responses to Defendant’s SUMF

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FB moves the Court to strike 1 or disregard paragraphs 5, 10, 12–13, 17, 19, 23, 31, 33,
39, 42–45, 47, 50, 52–53, 56 and 59 of Plaintiff’s responses to its SUMF because they are
irrelevant, legal conclusions, opinions, and/or speculation and therefore inconsistent with Local
Rule 56.1(b). (D.E. 84 at 1–3.) Plaintiff insists these responses are the only way to present all of
the necessary facts to defeat Defendant’s motion. (D.E. 88 at 1–3.) Upon review of Artis’s
responses, the Court finds paragraphs 31, 37, 42, 53–54, and 58 of Defendant’s SUMF
undisputed, for the purposes of this motion, because he failed to provide record citations to
support the disputed nature of these facts. See Fed. R. Civ. P. 56(e) (“If a party fails to properly
support an assertion of fact or fails to properly address another party’s assertion of fact as
required by Rule 56(c), the court may: . . . (2) consider the fact undisputed for the purposes of
the motion[.]”).
As to Plaintiff’s remaining responses, Local Rule 56.1(b) provides that non-movants
“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 purposes of ruling on the motion for
summary judgment only; or (3) demonstrating that the fact is disputed.” Local Rule 56.1(b).
The disputed facts must be accompanied by “specific citations to the record supporting the
contention that such fact is in dispute.” Id. The non-movant’s response “may contain a concise
statement of any additional facts that the non-movant contends are material and as to which the
non-movant contends there exists a genuine issue to be tried.” Id. The Court will examine each
response to determine if it complies with Local Rule 56.1(b) and/or Fed. R. Civ. P. 56.
Paragraph 5. Plaintiff disputes Defendant’s SUMF that it does not have a formal position of
Assistant Cell Leader by citing his job application for the Cell Leader position, Defendant’s
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The Court notes that “striking” the Plaintiff’s responses would not be procedurally proper because only
pleadings are attackable through a motion to strike. See Johnson v. Total Renal Care, Inc., No. 1:11-cv-01047-JDBegb, 2012 WL 896148, at *1 n.2 (W.D. Tenn. Mar. 15, 2012).

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policy of paying employees who temporarily fill-in as Cell Leader a higher rate, and his
allegation that he was stripped of his assistant Cell Leader duties after complaining about racial
discrimination at work. (D.E. 57 ¶ 5.) The evidence relied on by Artis does not demonstrate that
this fact is disputed. He admits Defendant had a policy of paying employees who temporarily
filled-in as Cell Leaders a higher rate. (Dep. of Louis Artis (“Artis Dep.”) at 226–27, D.E. 50.)
However, when the Cell Leader returned, that employee stopped receiving higher pay. (Id.)
None of this evidence demonstrates that “Assistant Cell Leader” was an official position at
Defendant’s Jackson, Tennessee facility. Therefore, the Court treats this SUMF as undisputed
for the purposes of this motion.
Paragraph 10.

Artis disputes Defendant’s SUMF that he had been encouraged by FB

management to seek advancement in the company by citing to record evidence, including his
deposition where he testified that, after expressing interest in the Department 2195 Cell Leader
position, all encouragement ceased, and he experienced retaliation. (D.E. 57 ¶ 10.) However,
Plaintiff also testified that he had received encouragement from his superiors to seek
advancement. (Artis Dep. at 82–85, D.E. 50.) Regardless, the Court considers this SUMF
disputed to the extent Plaintiff alleges there was a change in his treatment at work after
expressing an interest in the Cell Lead position.
Plaintiff also disputes Defendant’s SUMF that it approved and paid for him to attend a
continuing education course by citing to the reimbursement records. (D.E. 57 ¶ 10.) That
evidence does not put the SUMF in dispute. The records show that in 2011, Plaintiff completed
a course with Defendant’s approval. (See D.E. 50-1 at 13–14.) It is undisputed that Defendant
reimbursed this cost. (Id.; Artis Dep. at 97–99, D.E. 50.) The remainder of Plaintiff’s response
to Defendant’s SUMF alleges that the work environment changed after he expressed interest in

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the Cell Leader position, and that Plaintiff had more education than Sherry Childs (“Childs”), the
employee who received the promotion. (See D.E. 57 ¶ 10.) Therefore, the Court finds as
undisputed, for the purposes of this motion, the fact that Plaintiff took a continuing education
course and was reimbursed by Defendant. The Court recognizes Plaintiff’s response comparing
his educational background to Childs, and his response that Defendant treats African American
employees differently.
Paragraph 12. Artis disputes Defendant’s SUMF listing the numerical score and pay raise he
received following his 2011 annual performance evaluation by referencing complaints his
supervisor, Tom Weaks (“Weaks”), wrote on the evaluation concerning Plaintiff’s lack of
organizational skills and trouble-shooting capabilities. (D.E. 57 ¶ 12.) The evidence Plaintiff
relies on does not call in to dispute the fact that he was evaluated on March 14, 2012 and given
that numerical score and pay raise. It is uncontested that, on the same day, Plaintiff conducted a
self-evaluation and gave himself the numerical score listed in Defendant’s SUMF. Therefore,
the Court treats these facts as undisputed for the purposes of this motion. The Court recognizes
Plaintiff’s response disputing the basis for Weaks’s written complaints on his 2011 evaluation.
Paragraph 13. Plaintiff disputes Defendant’s SUMF listing the numerical score Childs received
on her 2011 annual evaluation. (D.E. 57 ¶ 13.) He does not provide any evidence challenging
the accuracy of this score, but instead offers argument alleging that Weaks gave Childs a higher
score to support his decision to promote her to Cell Leader. (Id.) Therefore, the Court treats this
fact as undisputed for the purposes of this motion, and recognizes Plaintiff’s response concerning
Weaks’s allegedly improper motives.
Paragraph 17. Plaintiff contests Defendant’s SUMF that the reasons Weaks promoted Childs
were her superior assembly and organizational skills by citing to former FB employee Jerry

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Day’s (“Day”) deposition, the Department 2195 Cell Leader job description, the interview
matrices, and other record evidence. (D.E. 57 ¶ 17.) His response lays out, in detail, his
argument that Weaks’s reasons for promoting Childs were pretextual. This text is taken almost
verbatim from Plaintiff’s response to Defendant’s motion for summary judgment. (See D.E. 56
at 6–9.) Therefore, the Court considers this fact undisputed to the extent Weaks stated those
were his reasons for promoting Childs, and recognizes Plaintiff’s response contending those
reasons were pretextual.
Paragraph 19.

Plaintiff disputes Defendant’s SUMF that Weaks told Plaintiff he was

disorganized prior to interviewing him for the Cell Leader position by citing to his deposition
and its exhibits. (D.E. 57 ¶ 19.) Therefore, the Court treats this fact as disputed.
Paragraph 23. Relying on the evidence cited in his response to paragraph 17, Plaintiff disagrees
with Defendant’s SUMF that Weaks made the decision to promote Childs based on, among other
factors, his direct observation of her performance as her supervisor. (D.E. 57 ¶ 23.) Therefore,
the Court treats this fact as undisputed that those were Weaks’s stated reasons, and recognizes
Plaintiff’s response contending they were pretextual.
Paragraph 33. Plaintiff admits this fact is uncontested, but offers additional citations that
expand on Childs’s workplace behavior. (D.E. 57 ¶ 33.) Therefore, the Court treats this fact as
undisputed and will consider the additional citations.
Paragraph 39. Artis disputes Defendant’s SUMF that he never informed anyone at FB that he
was offended by Childs’s statements listed in SUMF ¶ 38 by citing his deposition. (D.E. 57 ¶
39.) On pages 114–16 of his deposition, Plaintiff recalled a conversation he had with Day about
alleged discrimination at FB. (Id.) However, this discussion occurred after Day’s employment
was terminated, so it does not dispute Defendant’s SUMF. Plaintiff cites pages 191–93, but this

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testimony focused on his complaints to FB management about other issues, not Childs’s
statements. Plaintiff cites page 204, but this testimony dealt with Plaintiff’s concerns over
Childs’s promotion, not her statements. Plaintiff references pages 241–47, but he is describing
his dissatisfaction with Weaks for never generally disciplining Childs, not her statements
mentioned in Def.’s SUMF ¶ 38. Finally, Plaintiff cites pages 353–55, but nothing in that
excerpt concerns reporting Childs’s statements. Plaintiff does testify, however, that he never told
Childs those comments were inappropriate. (Id. at 130–34.) He has failed to provide “specific
citations to the record supporting the contention that such fact is in dispute.” Local Rule 56.1(b).
Therefore, the Court will treat this fact as undisputed for the purposes of this motion.
Paragraph 43. Artis differs with Defendant’s SUMF that several FB employees saw a rubber
chicken hanging by a noose in “funny places”, and that the rubber chicken would be placed in
different locations throughout the facility as a joke, by citing to depositions that described the
chicken as offensive. (D.E. 57 ¶ 43.) Therefore, this fact is disputed for the purposes of this
motion.
Paragraph 44.

Plaintiff disputes Defendant’s SUMF stating that Danny Selph is not a

manager/supervisor by citing to depositions and other record evidence. (D.E. 57 ¶ 44.) The fact
concerning Selph’s employment rank is disputed for the purposes of this motion. Also disputed
is Defendant’s SUMF that Plaintiff never complained to anyone at FB after receiving two books
from Selph, or that Selph is his supervisor. (Id.) It is undisputed, for the purposes of this
motion, that Plaintiff never complained about receiving the books from Selph and that Selph
never worked in Plaintiff’s department or supervised him. (Artis Dep. at 247, 261–62, D.E. 50;
Deposition of Danny Selph (“Selph Dep.”) at 104, D.E. 70-3.) The Court recognizes Plaintiff’s
response alleging that he was offended after receiving the books.

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Paragraph 45. Artis disagrees with Defendant’s SUMF describing Selph’s stated motivation for
giving the books to the extent it infers that the books did not personally offend him, or that Selph
has not made racist comments while working at FB, by citing to deposition excerpts, including
Marcus Tyus’s (“Tyus”) deposition and Robert Williams’s affidavit. (D.E. 57 ¶ 45.) However,
the cited portions of Tyus’s testimony do not mention Selph making any racist comments while
working at FB. (See Dep. of Marcus Tyus (“Tyus Dep.”) at 45–51, D.E. 69-1.) Williams’s
affidavit, as discussed below, is inadmissible, and, in any event, does not reference Selph making
racist remarks, or displaying racism at work. (See D.E. 67-1.) Plaintiff cites four excerpts from
his own deposition, but none address whether Selph made racially offensive remarks while
employed at FB. The closest relevant testimony is him relaying a story Selph told co-workers
about giving an African American female a ride home.

(Artis Dep. at 297–98, D.E. 50.)

Plaintiff testified that he was not sure if this was a true story or joke, and admitted he had no
knowledge about the story’s background. (Id.) Therefore, for the purposes of this motion, it is
undisputed that Selph has not made racially offensive remarks in the past. The Court recognizes
Plaintiff’s response that he was personally offended after receiving the books.
Paragraph 47. Plaintiff does not dispute Defendant’s SUMF that he only alleged Title VII
racial discrimination in his June 26, 2012 EEOC charge, but notes that he brought a hostile work
environment and retaliation claim under the THRA and Title VII in the present action.
Paragraph 50.

Plaintiff does not dispute Defendant’s SUMF that he never applied for a

management position but adds that there are no African American managers at the Jackson,
Tennessee facility. (D.E. 57 ¶ 50.) The Court recognizes Plaintiff’s response and will consider it
for the purposes of this motion.

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Paragraph 52. Plaintiff disputes Defendant’s SUMF that he has no personal knowledge of the
rate at which African American employees are disciplined as compared to Caucasian employees
by citing Day’s deposition. (D.E. 57 ¶ 52.) The Court will address this statistical evidence.
Paragraph 56. Plaintiff disputes Defendant’s SUMF that he has no personal knowledge of FB
employing individuals in management/supervisory roles who are known to display racially
discriminatory behavior by citing his discriminatory atmosphere evidence. (D.E. 57 ¶ 56.) The
Court recognizes Plaintiff’s response and will consider it for the purposes of this motion.
Paragraph 59. Plaintiff disputes Defendant’s SUMF that since filing his EEOC charge he has
not been disciplined to the extent the SUMF infers that management has not ignored his
complaints of retaliation and racism. (D.E. 57 ¶ 59.) Plaintiff’s response does not dispute the
fact that, since filing his EEOC charge, he has not been formally disciplined. Therefore, the
Court will consider this fact undisputed for the purposes of this motion and recognizes Plaintiff’s
response that he believes his complaints were being ignored.
C.

Robert Williams’s Affidavit
FB challenges Robert Williams’s affidavit as being unsworn, lacking specificity, and

containing conclusory allegations in violation of Fed. R. Civ. P. 56. (D.E. 84 at 3–4.) Under
Rule 56, “[a]n affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). An affidavit
must also be “sworn to before a notary public [or] signed under penalty of perjury pursuant to 28
U.S.C. § 1746.” CareToLive v. Food and Drug Admin., 631 F.3d 336, 345 (6th Cir. 2011).
Williams submitted an affidavit that he signed and dated on February 8, 2013. (D.E. 671.) The February 8 statement is not notarized or signed by Williams under penalty of perjury.

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On November 17, 2014, he added the following notation: “I wrote this for Louis Artis on 2-813.” This statement was notarized by a valid Tennessee notary public. However, the Court
concludes that this affidavit should be disregarded for the purposes of this motion. See Hart v.
Lutz, 102 F. App’x 10, 13 (6th Cir. 2004) (affirming district court’s decision to disregard
affidavits that were not sworn or otherwise subscribed pursuant to 28 U.S.C. § 1746, even
though their certificates of service were sworn and notarized). Williams’s affidavit presents a
similar problem, as the statement describing discrimination at Defendant’s Jackson, Tennessee
facility was neither sworn nor otherwise subscribed. The only statement that was notarized is the
November 17, 2014 statement, “I wrote this for Louis Artis on 2-8-13.”
Additionally, even if the affidavit was properly executed, it is unclear how Williams has
personal knowledge to testify on these matters because he failed to list his dates of employment,
what position he held, or when this discrimination occurred. See Fed. R. Civ. P. 56(c)(4) (“An
affidavit or declaration . . . must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.”).

Based on these circumstances, the Court will disregard Williams’s affidavit

for the purposes of this motion.
Background
Since 2000, Artis, an African American male, had been employed at FB’s Jackson,
Tennessee facility that specializes in the manufacture of spray guns and fluid handling
equipment for industrial finishing applications. (Def.’s SUMF ¶¶ 1–3, D.E. 48.) He began
working as a machine operator and was later assigned to the buffing department. (Id. ¶¶ 3–4.) In
August 2009, with the encouragement of FB’s former human resources manager, Mitchell Hall
(“Hall”), Plaintiff applied for an Assembler position in Department 2195’s Pump Cell. (Id. ¶ 6.)

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Artis was interviewed by Assembly Production Supervisor Tom Weaks (“Weaks”), who offered
him the position, which he currently holds. (Id. ¶¶ 2, 7.) Sherry Childs (“Childs”), a Caucasian
female, was already employed as an assembler in Department 2195 when Artis joined it. (Id. ¶
8.) During this time, Department 2195 did not have a Cell Leader, so Weaks and the other
assemblers—including Artis and Childs—performed the Cell Lead duties. (Id. ¶ 9.)
In 2011, with the support and encouragement of FB management, including Hall, Weaks,
and Director of Manufacturing Bob Battle (“Battle”), Artis completed a continuing education
course focusing on the fundamentals of supervision and management. (Id. ¶ 10.) On March 14,
2012, Weaks conducted the 2011 performance evaluation of Artis, giving him an overall score of
3.5/5.0, while Artis gave himself a similar score in his self-evaluation. (Id. ¶ 12.) On the same
date, Weaks conducted Childs’s 2011 performance evaluation, resulting in a score of 3.88/5.0.
(Id. ¶ 13.)
Sometime in early March/late February 2012, Weaks, Battle and Kim Quick met to
discuss potential job openings, including filling the still-vacant Cell Leader position in
Department 2195. (Day Dep. at 84, D.E. 63-1; Weaks Dep. at 136–38, D.E. 61.) On March 1,
2012, Day sent an email to Human Resources Director Betty Schultz (“Schultz”), memorializing
this meeting. (D.E. 65-2 at 29.) Day’s email explained that “Bob met with Tom Weeks [sic] and
Kim Quick to discuss their load. They recommend the following changes. . . . Post position of
Cell Leader over pumps. Their recommendation is Sherry Childs. Not sure if I agree.” (Id.)
On March 16, 2012, FB posted the Department 2195 Cell Leader position. (Def.’s
SUMF ¶ 14, D.E. 48.) Artis and Childs applied and were interviewed by Weaks and Day. (Id. ¶
15; Weaks Dep. at 85, D.E. 61.) Even though both were qualified, Weaks told Artis he chose
Childs because she was his most skilled assembler and had better organizational skills. (Def.’s

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SUMF ¶¶ 16–18.) Despite Childs receiving the promotion, Weaks encouraged Artis to apply for
future Cell Leader openings. (Id. ¶ 27.) The Department 2195 Cell Leader position is the only
Cell Lead position Artis has applied for while employed by Defendant. (Id. ¶ 29.)
After Childs’s promotion, Artis’s working relationship with her became “very difficult at
times,” with Childs criticizing his work to other employees in Department 2195, and being
“snappy”. (Id. ¶ 32.) Plaintiff complained about Childs’s behavior to Weaks and Operations
Manager Pete Kurtz (“Kurtz”), who suggested everyone meet to discuss the situation. (Id. ¶ 33.)
Kurtz investigated Artis’s complaints and held a meeting on September 30, 2013 with Weaks,
Artis, and Childs. (Id. ¶ 34; D.E. 50-1 at 42.) There, the parties discussed their working
relationship. (Def.’s SUMF ¶ 34, D.E. 48.) Both employees expressed their frustration with the
other and apologized, with Artis stating there was no longer hostility between them. (Id. ¶ 35.)
On June 26, 2012, Plaintiff filed a complaint with the EEOC, asserting that he was
discriminated against based on his race by Defendant when he was not promoted to Cell Leader
of Department 2195. (Id. ¶ 47.) Upon receiving his right-to-sue notice, he brought this action on
March 12, 2013, alleging racial discrimination, a hostile work environment, and retaliation in
violation of Title VII, 42 U.S.C. § 2000e et seq., and the Tennessee Human Rights Act
(“THRA”), Tenn. Code Ann. § 4-21-101, et seq. (See D.E. 1.)
Legal Standard
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.” Canady v. Gillette Co., 546 F. App’x 670, 677 (6th Cir. 2013) (citing

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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 any matter 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
(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–
49. 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.
Analysis
A.

Race Discrimination 2

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Artis failed to raise a mixed-motive claim in his complaint or responses to FB’s summary judgment
motion. Therefore, the Court will analyze his race discrimination allegation as a single-motive claim. See Spees v.
James Marine, Inc., 617 F.3d 380, 390 (6th Cir. 2010) (“Plaintiffs must give proper notice when bringing mixedmotive claims.”).

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Plaintiff insists that Defendant’s failure to promote him to Cell Leader was race
discrimination actionable under Title VII and the THRA. (Compl. ¶¶ 10–20, 28, D.E. 1.) Title
VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any 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). The THRA does so as well. See Tenn. Code
Ann. § 4-21-401(a)(1). The analysis for discrimination claims brought under Title VII and the
THRA is the same. See Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 757 (6th Cir. 2012)
(“Tennessee courts look to federal cases applying federal anti-discrimination statutes as the
baseline for interpreting and applying the THRA.”).
In order to survive summary judgment on these claims, Artis “must present either direct
or circumstantial evidence that [this] action[] [was] motivated . . . by racial animus.” Reed v.
Procter & Gamble Mfg., 556 F. App’x 421, 428 (6th Cir. 2013). He does not present any direct
discrimination evidence; therefore his claims will be assessed using the McDonnell Douglas
burden-shifting framework. See Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 347 (6th Cir.
2012) (“The three-step framework developed in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817, L. Ed. 2d 668 (1973), guides the analysis of discrimination claims based
upon circumstantial evidence.”); Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 593
(6th Cir. 2007) (applying the McDonnell Douglas burden-shifting framework to THRA claims).
If Artis can establish a prima facie case of racial discrimination, the burden of production shifts
to FB to offer a legitimate, non-discriminatory reason for its decision to promote Childs over
Artis. Id. He can then prevail by showing that FB’s stated reason was pretextual. Id. The

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plaintiff has the burden of persuasion at all times, regardless of which party bears the burden of
production. Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 675 (6th Cir. 2013).
For purposes of this motion, FB concedes that Artis can establish a prima facie case of
race discrimination. (D.E. 47-1 at 4.) The parties dispute whether FB has provided a legitimate,
non-discriminatory reason for promoting Childs over Artis, and whether Artis has shown that
that FB’s reasons were pretexual.
1.

Legitimate, Non-Discriminatory Reason

Weaks decided to promote Childs to Cell Leader based on his direct observation and
supervision of both candidates, and her higher 2011 evaluation score. (Id. at 4–5; Aff. of Tom
Weaks (“Weak Aff.”) at ¶ 7, D.E. 50-7.) Weaks noted that Childs trained employees at the Cell
Leader level, was the department’s highest producing Assembler, and covered for other Cell
Leaders when necessary. (Id.) Childs received a 3.88/5.0 on her 2011 evaluation, while Artis
received a 3.5/5.0. 3 (Id.) She also had more seniority as an assembler in Department 2195. (Id.
¶ 5.) “Selecting a more qualified candidate constitutes a legitimate, non-discriminatory reason.”
Hawkins v. Memphis Light Gas and Water, 520 F. App’x 316, 319 (6th Cir. 2013) (citing
Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 815 (6th Cir. 2011)). This legitimate and nondiscriminatory reason shifts the burden of production back on Artis to “point out ‘evidence from
which a jury could reasonably reject [Finishing Brand’s] explanation’” as pretextual. Davis v.
Cintas Corp., 717 F.3d 476, 491 (6th Cir. 2013) (quoting Chen v. Dow Chem. Co., 580 F.3d 394,
400 (6th Cir. 2009)).
2.

Pretext

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In his affidavit, Weaks states that Artis received a 3.5/4.0 and Childs a 3.88/4.0, but this appears to be a
typographical error as both employees’ 2011 evaluations have a scoring range of 1-5. (D.E. 67-2 at 1; D.E. 67-3 at
1.) Regardless, Childs had a higher 2011 evaluation score.

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Pretext is generally demonstrated by showing “(1) that the proffered reasons had no basis
in fact, (2) that the proffered reasons did not actually motivate [the adverse employment action],
or (3) that they were insufficient to motivate [the adverse employment action].” Rachells v.
Cingular Wireless Emp. Servs., LLC, 732 F.3d 652, 668 (6th Cir. 2013) (internal quotation marks
and internal citations omitted). In some situations, “[t]he relative qualifications of candidates
can establish triable issues of fact as to pretext where the evidence shows that either (1) the
plaintiff was a plainly superior candidate, such that no reasonable employer would have chosen
the latter applicant over the former, or (2) plaintiff was as qualified if not better qualified than the
successful applicant, and the record contains other probative evidence of discrimination.” Id.
(internal quotation marks and internal citations omitted). Artis asserts that Weaks’s reasons for
promoting Childs were pretextual because he was the plainly superior candidate, or,
alternatively, he was as qualified, if not more qualified than Childs, and the record contains other
probative evidence of discrimination sufficient to establish pretext. (D.E. 56 at 6–12.)
a.

Qualifications

While Plaintiff admits Childs was qualified for the Cell Leader position, (Pl.’s Resp. to
Def.’s SUMF at ¶ 16, D.E. 57), he contends that, after considering the job description and
individual interview matrix categories, it is clear that he was the plainly superior candidate such
that no reasonable employer would have promoted her. (D.E. 56 at 6–9.)
i.

Job Description

The job description listed the position’s primary responsibilities as “coordinat[ing]
activities that bring all cell team members to the same level of competency.” (D.E. 68 at 1.)
Further, “[c]ell leaders direct, supervise, mentor, schedule or delegate employees in assign [sic]
cell locations,” and “report all attendance issues, policy issues, and employee [sic] excessive

16

leaving cell location.” (Id.) Cell Leaders are expected to “[p]rovide direction and monitoring of
the production operations, to enhance the quality, skills, and productivity of the Industrial
Assembly Cells, including training, workload analysis, work assignments, kanban reviews,
monitor efficiency, vacation scheduling and attendance and execute ongoing plans for
continuous cost and quality improvement.” (Id.) Some duties listed under the “Requirements”
section include the organization of parts, orders, daily communication with management and the
cell members, as well as being proactive for any issues that might arise. (Id. at 1.) Finally, an
applicant “[m]ust have excellent communication and human relation skills with employees and
co-workers. Must also have good technical and mechanical comprehension of the functions of
products, tooling and work methods. Must be decisive and have the ability to react to problems,
which arise on an ongoing basis. Must have good reading, writing and mathematical skills.” (Id.
at 2.) It is undisputed that organization is a key quality for Cell Leaders, as they are required to
order and organize thousands of pump parts. (Def.’s SUMF ¶¶ 20–21, D.E. 48.)
In his Cell Leader application, Artis indicated that he had been with Department 2195 for
two years, was “capable of training according to blue prints and experience,” that he possessed
interpersonal and organizational skills, that he had previously led morning exercises, distributed
the daily cell reports, collected data for spike, current, and later orders, maintained the Kan-Bans
in nine cells, and was putting away deliveries and resetting reorder points. (D.E. 50-1 at 28.) He
referenced his prior experience as a temporary assistant cell leader in the buffing department.
(Id.; Artis Dep. at 109–10, D.E. 50.)
Childs began working at FB in 2005 as a temporary employee and was hired permanently
in June 2006. (Dep. of Sherry Childs (“Childs Dep.”), D.E. 69 at 11–12.) She listed her
assembling and organizational skills, her ability to pick up on tasks easily, and her prior

17

experience as a quality tech at another company as reasons why she was qualified for the Cell
Lead position. (Id. 16–17.) Childs had been in Department 2195 for approximately four years
prior to applying for the position. (D.E. 61-1 at 40.) In her application, she stated that she had
experience completing all of the thirteen requirements listed in the job description while working
for Defendant. (Id.)
Weaks testified that Childs was his most productive assembler and could “assemble
circles around other people, other assemblers.” (Weaks Dep. at 106, D.E. 61.) Weaks directly
supervised Childs for approximately four years, and Artis for approximately two years, prior to
selecting her for the position. (Weaks Aff. ¶ 5, D.E. 50-7.) Weaks recalled that Childs covered
for other Cell Leaders when they were out, acted as his assistant when unusual issues arose, and
helped train other employees at the Cell Leader level. (Id. ¶ 7.) Weaks stated that while both
candidates were qualified, based on his observations and her 2011 evaluation score, she was
more qualified. (Id. ¶¶ 6–7, 9.) Based on both applicants’ qualifications, nothing in the Cell
Leader job description demonstrates that Plaintiff was the plainly superior candidate.
ii.

Interview Matrices

Both candidates were interviewed by Weaks and Day in March 2012. 4 (Weaks Aff. ¶¶ 4,
6, D.E. 50-7.)

The interviewers completed interview evaluation matrices by giving each

candidate a numerical score ranging from 1–4 in five individual categories: (1) Degree/Diploma
Requirement; (2) Experience; (3) Skill/Knowledge In Decision Making; (4) Skill/Knowledge in
Leadership; and (5) Interpersonal. (D.E. 67 at 1.) Weaks scored Childs 17/20 and Artis 16/20.
(Id.) Day stated that Weaks conducted both interviews similarly, and asked each applicant the
same questions. (Day Dep. at 557, D.E. 63-1.)

4

While Day and Weaks both participated in the interviews, the promotion decision was made by Weaks.
(Weaks Dep. at 94–95, D.E. 61; Day Dep. at 556–57, D.E. 63-1.)

18

Artis spends several pages of his responsive brief analyzing the individual matrix
categories in an effort to establish that he was the plainly superior candidate. (See D.E. 56 at 6–
9.) He disputes the four he received in the “Degree/Diploma” category, but it was the maximum
score available. (D.E. 67 at 1.) Childs received a three. (Id.) Artis claims that a year prior to
the interview Weaks told him to “go back to school” if he wanted to qualify for any future Cell
Lead positions, but that Weaks never told Childs she needed more education. (D.E. 56 at 7.)
Regardless of what Weaks told Plaintiff, he scored higher than Childs in this category.
Plaintiff contests Weaks giving him a three, and Childs a four, under the “Experience”
category, (D.E. 56 at 7), but it is undisputed that she had more experience as an assembler. Artis
offers Tyus’s deposition testimony to bolster his superior experience claim, but Tyus did not join
Department 2195 until after Childs was promoted, so his testimony on this issue is irrelevant.
(See Tyus Dep. at 17, 26, D.E. 69-1.) Day testified that Artis had more experience, but admits
that Childs had been an assembler in Department 2195 longer. (Day Dep. at 546, D.E. 63-1.) It
is unclear how Day would have personal knowledge of Artis’s experience as an assembler, since
he did not work in Department 2195. To the extent Artis offers this testimony for the purpose
creating a genuine issue of material fact as to whether he was the plainly superior candidate, the
Court must disregard it. See Haley v. Gen. Elec. Co., 3 F. App’x 240, 248 (6th Cir. 2001)
(“Without more, mere opinions expressed by co-workers who have no direct involvement in the
decision-making processes have no probative value as to [defendant’s] alleged discriminatory
intent.”). Weaks, who directly supervised both candidates, described Childs as his best and most
experienced assembler. (Weaks Aff. ¶ 7, D.E. 50-7.)
As for “Skill/Knowledge in Decision-Making”, Artis contests his score of two, and
Childs’s score of four, since he was performing a majority of the Cell Lead duties while the

19

position was vacant. (D.E. 56 at 7–8.) Weaks testified that Plaintiff had problems troubleshooting certain pump assembly issues, but he disputes this, claiming that he has only had
trouble with one pump out of hundreds. (Artis Dep. at 232–33, D.E. 50; Weaks Dep. at 74–75,
D.E. 61.) Regardless, Weaks testified that Childs was his best assembler, that she had the ability
to train other employees at a Cell Leader level, had been covering for absent Cell Leaders when
needed, and had been acting as his assistant when unusual issues arose. (Weaks Aff. ¶ 7, D.E.
50-7.).
In the “Skill/Knowledge in Leadership” category, both candidates were awarded a score
of three. (D.E. 67 at 1.) Artis believes he deserved higher, based on Childs’s workplace
demeanor, which Plaintiff and other employees described as unprofessional. (D.E. 56 at 8.)
Again, Weaks testified that Childs was the highest producing assembler and had been training
other employees at a Cell Leader level. (Weaks Aff. ¶ 7, D.E. 50-7.) For the “Interpersonal”
category, Artis contests Weaks giving him a four, but this was the maximum score allowed.
(D.E. 56 at 8–9.)
In light of this evidence, no reasonable jury could find that Artis was “a plainly superior
candidate, such that no reasonable employer would have chosen [Childs].” Provenzano, 663
F.3d at 815. It is undisputed that Childs had more experience as an assembler, was training
employees at a Cell Leader level, and was the department’s highest producing assembler,
according to Weaks. In the end, both candidates were qualified for the position. Weaks, based
on his personal observation of the candidates, selected Childs. No evidence offered by Plaintiff
“conclusively establish[es] that [he] should have been promoted over [Childs].” Id. at 816;
Bartlett v. Gates, 421 F. App’x 485, 491 (6th Cir. 2010) (finding that the plaintiff had not shown
he was the plainly superior candidate, even though he had sixteen years more experience,

20

superior educational credentials, and superior communication skills as compared to the candidate
who ultimately received the promotion).
Plaintiff can still attempt to show pretext by establishing that he and Childs were equally
qualified and offering “‘other probative evidence of discrimination.’” Provenzano, 663 F.3d at
817 (quoting Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 627 (6th Cir. 2006)). Artis meets
the first requirement, as Weaks had observed they were equally qualified to be Cell Leader.
(Weaks Aff. ¶ 6, D.E. 50-7.)
b.

Other Probative Evidence of Discrimination

Artis 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 sufficient to create
an issue of fact as to whether Weaks’s reasons for promoting Childs were pretextual. (D.E. 56 at
9–12.) In evaluating evidence of pretext, 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, 732 F.3d at 665 (quoting Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 392 (6th Cir.
2009)). The parties disagree on the analysis the Court should engage in when deciding whether
the evidence offered by Plaintiff establishes the existence of a discriminatory atmosphere at
Defendant’s business. (Compare D.E. 56 at 11 and D.E. 88 at 3–4 with D.E. 84 at 3–5.)
Artis maintains that the Court, “[i]n determining whether discriminatory behavior
constitutes circumstantial evidence of a discriminatory atmosphere . . . may consider factors such

21

as the identity of the speaker, the nature and substance of the comments, and the temporal
proximity of the comments to the challenged decision.” (D.E. 88 at 4.) FB counters by
suggesting that Plaintiff’s examples are actually “other acts” evidence, and the Court’s relevancy
analysis should focus on whether the same actors are involved, the temporal and geographic
proximity of the other acts, whether the various decision-makers knew of the other decisions,
whether the employees were similarly situated, and the nature of the employees’ allegations.
(D.E. 84 at 4.) Both rely on Griffin v. Finkbeiner, 689 F.3d 584 (6th Cir. 2012) to support their
respective positions. In Griffin, the Sixth Circuit was reviewing the district court’s grant of
summary judgment in favor of the employer on the plaintiff’s race discrimination claims, and the
granting of the defendant’s motion in limine to exclude “other acts” evidence offered by the
employee in support of her retaliation claim. Id. at 588.
In considering the district court’s grant of summary judgment on the race discrimination
claims, the Griffin court held that 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.’” Id. at 595 (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 [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 comments, and the temporal proximity of the
comments to the challenged decision.” Id. The court noted that “[i]n certain circumstances,
even statements by a non-decisionmaker can be probative evidence of discrimination, such as

22

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.
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 658. 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.
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 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.

23

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, 421 F. App’x at 492. 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. at 665 (quoting Risch, 581 F.3d at 393).
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 decisionmakers knew of the others 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 case-by-case determination that ‘depends

24

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.” Shrack 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”
evidence. Compare Griffin, 689 F.3d. at 595–96 with 598–600. Artis’s evidence concerning
actions taken by or involving Weaks, or actions taken by a non-decisionmaker who could have
influenced Weaks’s decision to promote Childs, will be analyzed as discriminatory atmosphere
evidence, since it was Weaks who ultimately made the decision to promote Childs. See Rachells,
732 F.3d at 669 (holding that the evidence of discriminatory atmosphere involving the division

25

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 Shrack v. R+L Carriers, Inc..
i.

Jerry Day

Artis offers Day’s September 14, 2012 EEOC charge and deposition testimony as
evidence of FB’s discriminatory atmosphere. (D.E. 56 at 9–11.) In his charge, Day claims he
was subjected to race discrimination and retaliation while employed at FB from January 1, 2010
through August 13, 2012 because he received unequal pay as compared to similarly situated
Caucasian employees, had a different job classification compared to the Caucasian employee he
replaced and similarly situated Caucasian employees at other FB facilities, was told by FB
management not to promote African Americans or post certain positions if African Americans
expressed interest, was not placed on Defendant’s list for employment advancement, and was
subjected to harassment after making internal complaints about racial discrimination—including
written reprimands and termination. (D.E. 71-1 at 1–4.)
The Court finds the charge to be “other acts” evidence. Applying the Shrack factors,
however, the Court finds the charge too attenuated to support Plaintiff’s “theory of the case.”
Mendelsohn, 552 U.S. at 388. Day’s allegations have no logical connection to Weaks’s decision
to promote Childs, as Weaks played no part in anything related to Day’s employment. Day’s
allegations do not include Weaks, who supervised a different part of the facility. While Day’s
allegations arose at the same time and place as Plaintiff’s claims, Day does not allege that Weaks

26

played any part in the discrimination he allegedly endured. Artis and Day are not similarly
situated, as the latter worked in HR, while Plaintiff worked as an assembler. Finally, Day alleges
unequal pay and unlawful termination based on his race, while Plaintiff claims racial
discrimination in Defendant’s decision not to promote him to Cell Leader.
Artis also offers Day’s testimony that, prior to posting the Cell Leader position, FB’s
management, including Weaks, conducted a closed-door meeting and decided to promote Childs.
(D.E. 56 at 9.) Day was briefed afterwards by Battle, who allegedly told him Childs was going
to be promoted to Cell Leader. (Day Dep. at 501, D.E. 63-1.) Day told Battle the position had to
be posted first, and it eventually was. (Id. at 501–02.) On March 1, 2012, Day sent an email
following this meeting to Defendant’s HR Director that stated “Bob met with Tom Weeks [sic]
and Kim Quick to discuss their load. They recommend the following changes. . . . Post position
of Cell Leader over pumps. Their recommendation is Sherry Childs. Not sure if I agree.” (Id. at
502; D.E. 65-2 at 29.) This testimony is probative in determining whether Weaks’s reasons for
promoting Childs were pretextual and will be considered below.
ii.

Dawn Partee’s EEOC Charge

Plaintiff offers Dawn Partee’s November 5, 2013 EEOC charge as evidence of FB’s
discriminatory atmosphere. (D.E. 71 at 1–5.) 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. (Id. at 1.) 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. (Id.) Partee claims she applied for a Distribution Associate position
in March 2013, but was told it was no longer available. (Id.) She contends that her race was the

27

reason the posting was removed. (Id.) 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. (Id. at
2.) Partee also recalls that Kurtz changed her job description without putting the changes in
writing, which made it impossible for her to do the job properly. (Id. at 4.) Finally, she alleges
that Kurtz did not include her on informational meetings in which similarly situated Caucasian
employees attended. (Id.)
The Court finds the charge to be “other acts” evidence. Applying the Shrack factors, the
Court likewise determines Partee’s EEOC charge too attenuated to support Plaintiff’s “theory of
the case.” Mendelsohn, 552 U.S. at 388. Her allegations have no logical connection to Weaks’s
decision to promote Childs, as Weaks played no role in deciding anything related to Partee’s
employment with Defendant. Partee’s allegations do not involve Weaks, and while her claims
arose at the same time and place as Plaintiff’s claims, she does not allege that Weaks participated
in any part of the discrimination she allegedly endured. Plaintiff and Partee are not similarly
situated, since she was a temporary employee who worked in Defendant’s warehouse. While
they both allege discrimination based on race, Plaintiff’s claim involves a failure to promote,
while Partee’s involves wrongful termination.
iii.

Edna Terry’s EEOC Charge

Artis presents Edna Terry’s October 16, 2014 EEOC charge as evidence of FB’s
discriminatory atmosphere. (D.E. 71-2 at 1–2.) In her charge, 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. (Id. at 1.) Terry insists she was
promised a pay raise when she took a position in FB’s warehouse but never received it. (Id.)
She claims that after Day’s employment was terminated, she received verbal and written

28

warnings at a higher rate than similarly situated Caucasian employees. (Id.) Terry recalls
applying for a Warehouse/Distribution Production Supervisor position that was later removed.
(Id. at 2.) Terry also alleges that Defendant had a policy of removing open positions once
African American employees showed interest. (Id.) She states that a Caucasian male was
awarded the Production Supervisor position in March 2013, and that she was required to train
him. (Id.) 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. (Id.) Terry contends that she is paid less than a similarly situated Caucasian
employee in violation of the Lily Ledbetter Act. (Id.)
The Court holds the charge to be “other acts” evidence. Applying the Shrack factors, the
Court finds the charge too unrelated to support Plaintiff’s “theory of the case.” Mendelsohn, 552
U.S. at 388. Her allegations have no logical connection to Weaks’s decision to promote Childs,
as Weaks played no role in anything related to Terry’s employment with Defendant. Terry’s
allegations do not include Weaks, and while they arose at the same time and place as Plaintiff’s
claims, Terry does not allege that Weaks took part in the discrimination she allegedly endured.
She is not supervised by Weaks, as she holds the position of Cell Leader in Defendant’s
warehouse. Plaintiff and Terry are not similarly situated, since she is a Cell Leader and Plaintiff
is an Assembler. Finally, their claims are not similar, as Terry alleges claims based on gender
and age discrimination in addition to race discrimination.
iv.

Steven Smith’s EEOC Charge

Plaintiff offers former FB employee Steven Smith’s July 1, 2013 EEOC charge as
evidence of FB’s discriminatory atmosphere. (D.E. 71-3 at 1–4.) In the charge, Smith claims he
was subjected to race and disability discrimination and retaliation while employed at FB from

29

January 1, 2012 through May 14, 2013. (Id. at 1.) During 2012, Smith’s son began experiencing
behavioral problems which required him to take leave from work. (Id.) 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. (Id. at 2.) Smith
states that Weaks subjected him to a hostile work environment. (Id.) He alleges that an
unnamed employee said “[Smith] won’t make it back here.” (Id.) Smith also contends that
Childs referred to him as “sorry” and that his workload was increased beyond that of similarly
situated Caucasian employees. (Id.) He related several incidents where Weaks was unfair to
him as compared to Caucasian employees. (Id. at 3–4.) After being demoted, his employment
was terminated on May 14, 2013. (Id. at 4.) This charge is relevant discriminatory atmosphere
evidence that is probative in determining whether Weaks’s reasons for promoting Childs were
pretextual and will be considered below.
v.

Statistical Information

Plaintiff highlights the lack of African American supervisors or managers at Defendant’s
Jackson, Tennessee facility as evidence of a discriminatory atmosphere.

(D.E. 56 at 10.)

However, it is undisputed that African Americans hold five out of seven cell leader positions at
the facility. (See D.E. 57 ¶ 31.) Artis 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. 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).

30

Plaintiff 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. (D.E. 56
at 10.) He does not explain the basis for this figure, but states that he obtained it from “a reliable
source”, i.e., Jerry Day. (See D.E. 57 ¶ 52.) This is not sufficient to demonstrate pretext, 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)). Plaintiff’s
data is neither, since Day testified that he did not review every personnel file before reaching his
conclusion. (Day Dep. at 686–90, D.E. 64.) Day simply states that during his employment with
Defendant, he recalled eight black employees receiving disciplinary write-ups as compared to
one Caucasian employee.

(Id. at 690–91.)

Because the statistical information offered by

Plaintiff lacks a sound methodology or reliable source, it is not evidence of Defendant’s
discriminatory atmosphere.
vi.

Rubber Chicken

Sometime in 2012, Plaintiff and other FB employees saw a rubber chicken hung from a
noose in the window of an unfinished office addition. (D.E. 56 at 9; Artis Dep. at 199–203, D.E.
50.) Artis did not report the incident. (Id. at 201–02). The chicken remained in the window for
more than a day, but was taken down soon after. (Id.) Day testified that Tate Scott, an FB
employee, was in charge of building the addition. (Day Dep. at 249, D.E. 62-1.) Day removed
the rubber chicken and it was never seen again. (Id. at 250–51.) Weaks testified that he had
heard the rubber chicken was hidden “in someone else’s workplace” as a funny joke. (Weaks
Dep. at 2–3, D.E. 61-1.) Weaks recalled that the chicken was removed because it was interfering
with the employees’ productivity. (Id. at 3.)

This incident was isolated and far removed from

31

whether Weaks’s reasons for promoting Childs were pretextual and does not “‘add ‘color’ to the
employer’s decisionmaking processes and to the influences behind the actions taken with respect
to the individual plaintiff.’” Rachells, 732 F.3d at 669 (quoting Risch, 581 F.3d at 392).
Because Plaintiff has not connected Weaks, or anyone who could have influenced the promotion
decision to this incident, it is not evidence of Defendant’s discriminatory atmosphere.
vii.

Danny Selph

Sometime in 2012, Selph gave Plaintiff books by Bill Cosby and Wellington Boone that
he found while cleaning his shed. (D.E. 56 at 10; Selph Dep. at 21, D.E. 70-3.) He relayed that
he and Artis were not buddies, but he knew that Artis was a Christian. (Id. at 21–22.) Selph
thought it would be “a nice gesture” to give the books to him instead of throwing them away.
(Id.) He relayed that Artis never told him he was offended by the books. (Id. at 103.) Selph
remembered Plaintiff saying that the books “would be good in the library at [his] church.” (Id.)
He never directly supervised Artis. (Id. at 104.)
Plaintiff viewed this interaction differently, testifying that as he was walking down the
hall at work, Selph told him he had some books for him, but that he “brushed it off and went on.”
(Artis Dep. at 251, D.E. 50.) The next day, Artis found the two books on his work table. (Id.)
Artis stated that upon receiving these books he was offended and “began to cry.” (Id. at 253.)
Plaintiff believed the subject of both books focused on diminishing who African Americans are
culturally. (Id. at 255–56.) He testified that he did not know Selph’s intention in giving him
these two books. (Id. 254–55.) Artis recalled that Selph did not tell him to focus on any
particular part of either book. (Id. at 256.) Plaintiff confirmed that he never complained to Selph
about the contents of the books. (Id. at 261–62.)

32

Again, this incident is far removed from whether Weaks’s reasons for promoting Childs
were pretextual, and in no way “‘add[s] ‘color’ to the employer’s decisionmaking processes and
to the influences behind the actions taken with respect to the individual plaintiff.’” Rachells, 732
F.3d at 669 (quoting Risch, 581 F.3d at 392). Selph took no part in the promotion decision and
was not involved in any meetings that could have impacted that decision. Therefore, this is not
evidence of Defendant’s discriminatory atmosphere.
viii.

Bathroom

Artis recalled finding 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 while at work.
(D.E. 56 at 10; Artis Dep. at 193–99, D.E. 50.) He testified that this incident occurred more than
five years before his deposition, which took place on January 22, 2014. (Id. at 196.) This
incident therefore likely occurred sometime in 2009 and has no connection to whether Weaks’s
reasons for promoting Childs were pretextual. This incident provides no additional rationale “to
the employer’s decisionmaking processes and to the influences behind the actions taken with
respect to the individual plaintiff.” Rachells, 732 F.3d at 667 (internal citation omitted). Once
the cartoon was reported, it was removed and never seen again. (Artis Dep. at 194, D.E. 50.)
Plaintiff has not explained how this incident impacted Weaks’s decision to promote Childs. He
has not alleged that Weaks, or anyone in management, was involved in placing this drawing in
the men’s restroom. Therefore, it is not evidence of Defendant’s discriminatory atmosphere.
ix.

Bob Battle

Sometime in 2011, Jerry Day filed an internal complaint alleging that Battle used racially
discriminatory remarks towards him and another employee. (D.E. 56 at 11; D.E. 72 at 1–2.)
After conducting an investigation, Schultz, Defendant’s HR director, concluded that Battle had

33

not made racial remarks to Day, but did inappropriately use the term “Mexican” in addressing
another employee. (Id.; Dep. of Betty Schultz (“Schultz Dep.”) at 54–55, D.E. 75-1.) Battle was
required to attend diversity and sensitivity training. (D.E. 72 at 1.) According to Schultz, Battle
completed this training. (Schultz Dep. at 9, D.E. 76-1.) Plaintiff submits an email that Battle
sent in December 2011 to the course instructor informing him that he had not been keeping up
with the journal that the two men had discussed. (D.E. 77-1 at 1.) As noted, Day related that
Battle attended a closed-door meeting with Weaks in March 2012 to discuss job vacancies,
including the Cell Leader position in Department 2195. (Day Dep. at 501, D.E. 63-1.) This
testimony is probative in determining whether Weaks’s reasons for promoting Childs were
pretextual and will be considered below.
x.

Conclusion

After considering all of the evidence submitted by Plaintiff, the Court finds that only
Day’s testimony, the 2011 investigation of Bob Battle, and Smith’s EEOC charge are probative
evidence of a discriminatory atmosphere at FB. Considering that evidence, in the light most
favorable to Plaintiff, the Court finds that a reasonable jury could not conclude that Weaks’s
reasons for promoting Childs were pretextual. The evidence does not “cast[] doubt on the basis
in fact of Defendant’s proffered legitimate, non-discriminatory reasons” for promoting Childs.
Rachells, 732 F.3d at 669 (internal quotation marks and internal citation omitted).
Day alleges that Weaks, Battle, and another manager made the decision to promote
Childs to Cell Leader at a closed-door meeting before the job was posted. (Day Dep. at 501–02,
D.E. 63-1.) At the outset, the Court finds that Battle was not the ultimate decisionmaker as to
which candidate would be promoted. Weaks testified that:
Q:

And obviously we’re here, in part, because Ms. Childs was selected for
that position?
34

A:

Uh-huh, yes.

Q:

Who made that decision?

A:

I did.

(Weaks Dep. at 92, D.E. 61.) Later in his deposition, Weaks stated:
Q:

If you make a decision about who is cell leader, who do you get to
approve that?

A:

Well, it would have been – ultimately it would have been Bettly Schultz,
you know, going through the –

Q:

Okay.

A:

-- the process.

Q:

All right. Would you get Bob Battle’s recommendation or when Bob
leaves the operation Pete Kurtz’s approval before you take it to Betty
Schultz?

A:

Yes. I mean, it would – yeah, his approval, his blessing, sounds good.

(Id. at 139–40.) Plaintiff has not established that anyone besides Weaks was the ultimate
decisionmaker with respect to the Cell Lead promotion, or that Battle actually approved the
promotion in this case.
Following the March 2012 meeting, Day sent an email to Schultz on March 1, 2012,
which stated that the attendees had recommended Sherry Childs for Cell Lead. (D.E. 68-2.)
Day’s email also stated that Stevie Thomas, an African American male, was the recommended
choice for Cell Leader over shipping. (Id.) At his deposition, Day testified that the email should
have stated that the meeting participants had not recommended, but had decided to promote
Childs to Cell Leader. (Day Dep. at 502–03, D.E. 63-1.) While “management’s consideration of
an impermissible factor in one context may support the inference that the impermissible factor
entered into the decisionmaking process in another context,” Ercegovich, 154 F.3d at 356,
35

nothing in Day’s testimony would allow a reasonable jury to infer that anyone at this March
2012 meeting, including Weaks, considered any impermissible factors, such as Plaintiff’s race, in
making their recommendations.
In another instance, Day testified that Battle told him not to post a Production
Supervisor 5 position because he did not want to hire “another black.” (Day Dep. at 187, D.E. 621; Id. at 481, D.E. 63-1.) Plaintiff insists that this incident occurred around the time Childs was
promoted, and is proof that management’s consideration of race in regards to one promotion
decision is probative evidence of pretext in his failure to promote case. (D.E. 56 at 9.) The Sixth
Circuit has held that “discriminatory remarks, even by a nondecisionmaker, can serve as
probative evidence of pretext.” Risch, 581 F.3d at 393 (citing Ercegovich, 154 F.3d at 356–57).
At his deposition, Day testified:
Q:

Do you recall Bob saying something like, Blacks only like?

A:

I heard him saying that he don’t want a black in a position.

Q:

You heard Bob say the words, I don’t want a black in a position?

A:
Um-hum. And he was referring to Edna Terry for the production
supervisor position. And he got mad.
Q:

What do you recall Bob saying?

A:

That he didn’t want Edna Terry in that position.

Q:

Oh, okay. So you heard Bob say –

A:

He didn’t want a – I heard Bob say he didn’t want a black in the position.
When I asked him, What’s wrong with Edna Terry, She’s qualified, She
has twenty years experience, he said, I don’t want Edna Terry in that
position. It was a black first, and then he called her name.

Q:

Okay. You remember that pretty specifically?

A:

I sent Ms. Schultz an e-mail. You should have that e-mail as well.

5

This position is also referred to as a “Distribution Supervisor”.

36

Q:

Okay. So the e-mail you sent to Ms. Schultz about Bob’s opinions about
putting Edna Terry in this position should be a fair, accurate assessment of
what Bob said?

A:

Um-hum. Um-hum.

Q:

Okay.

....
A:

That’s it right there. (Exhibit P was marked.)

Q:

Have you seen Exhibit P before?

A:

Yes.

Q:

Can you identify it for the record?

A:

It’s an e-mail that I sent to Betty Schultz concerning Bob making
statements of hiring a minority for production – a handicapped minority,
and cursing me, using, None of my f’ing business.

Q:

Okay. We’ll start with the first one. On March 11, 2011, Bob stated we
need to hire a handicap minority for production manager.

A:

Um-hum.

Q:

Tell me about that conversation.

A:

That was during the time that we was [sic] getting ready to post the
production supervisor position and a cell leader position. From that
meeting that Bob had with – Mr. Battle had with Mr. Tom Weaks and Ms.
Kim Quick, it was decided that they would hire Kay Meadows and Sherry
Childs. This was before the interviews have taken place and the posting
have came [sic] down. I told Bob at the time, I said, Bob, we have to go
by the procedures to post this position and bid the position, and the highest
bidder would be able to be qualified and get the position. And then he was
upset, and he said, Why don’t you just hire a handicap minority for the
position?

....
Q:

Okay. You testified earlier that this happened in a meeting where you said
that certain decisions were made before job postings were made; is that
correct?
37

A:

Yes. Um-hum. Yes, ma’am.

(Day Dep. at 186–90, D.E. 62-1.) The email, identified as “Exhibit P”, was dated March 11,
2011, and sent almost a year before Childs was promoted to Cell Leader. It is unclear from
Day’s testimony when Battle made the comment about not wanting to hire another African
American. The Production Supervisor position was also discussed at the March 2012 meeting,
and Kay Meadows was recommended for the position. (D.E. 68-2.) Day sent an email on April
2, 2012 to Schultz stating that Battle wanted to remove the Production Supervisor posting
because Meadows withdrew her name, even though three other employees had applied. (D.E.
66-1 at 88.)
The Sixth Circuit has noted, “[w]e do not mean to imply that any [discriminatory]
comment by a corporate executive is relevant as evidence of a discriminatory corporate culture.
Rather, the courts must carefully evaluate factors affecting the statement’s probative value, such
as the declarant’s position in the corporate hierarchy, the purpose and content of the statement,
and the temporal connection between the statement and the challenged employment action . . . as
well as whether the statement buttresses other evidence of pretext.” Ercegovich, 154 F.3d at 357
(internal quotation marks and internal citations omitted).

Here, Battle was in charge of

Defendant’s Jackson, Tennessee facility, the purpose and content of his statement was that he did
not want to post a position because he did not want another African American employee to be
hired, the temporal connection between Battle’s comment and Childs’s promotion is unclear,
since Day’s testimony on when the comment was made is inconsistent. Battle’s comment, while
offensive, was isolated and does not “‘buttress[] other evidence of pretext.’” Id. There is no
evidence that Battle said this comment to anyone but Day. It would be unreasonable to infer that
Battle mentioned his opposition to hiring a minority candidate at the March 2012 meeting since
38

the attendees recommended that Stevie Thomas, an African American, be promoted to Cell
Leader of the shipping department. (D.E. 68-2; Day Dep. at 508, D.E. 63-1.) Plaintiff has failed
to explain how the Production Supervisor opening was eventually filled, other than providing
Terry’s statement in her EEOC charge that it was filled by a Caucasian male in 2013. At this
stage of the McDonnell Douglas inquiry, Plaintiff has the burden of producing evidence
establishing that Defendant’s reasons were pretextual. Even drawing all reasonable inferences in
Plaintiff’s favor, this single comment by Battle, which may have occurred a year before the
promotion decision at issue, is not enough to rebut the legitimate, non-discriminatory reasons for
promoting Childs.
Similarly, while Battle’s 2011 comment to an FB employee was inappropriate, it was also
isolated. Defendant conducted an independent investigation of Day’s complaint and determined
that Battle should attend diversity training.

(D.E. 72 at 1.) According to Schultz, Battle

completed that training. (Schultz Dep. at 9, D.E. 76-1.) This incident occurred more than a year
before Weaks promoted Childs. (D.E. 72 at 1.) Weaks testified that he would get Battle’s
approval or blessing before finalizing the Cell Lead promotion, (Weaks Dep. at 140, D.E. 61),
but that the promotion decision was ultimately his.

(Id. at 146–47.)

While true that

“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, 689 F.3d at 595
(quoting Ercegovich, 154 F.3d at 355), the 2011 comment by Battle is the kind of “‘[i]solated
and ambiguous’ comment[] that will not support a finding of discrimination.” Id. (quoting
Ercegovich, 154 F.3d at 355). Plaintiff has not shown how this comment establishes that the
legitimate, non-discriminatory reasons for promoting Childs were pretextual.

39

In his EEOC charge, Smith stated that he began “experiencing a hostile work
environment and attitude from his supervisor, Tom Weaks.” (D.E. 71-3 at 2.) Smith contends
that Weaks stated it was “not my problem,” when Smith asked for time off to attend to a
mechanical problem at his home. (Id. at 3.) Smith claims that Weaks, on more than one
occasion, gave him the wrong parts list, which caused him to ship the incorrect parts and receive
verbal reprimands and write-ups.

(Id.)

Smith’s charge is not probative of individualized

discrimination in Plaintiff’s case because it contains conclusory allegations that do not shed light
on whether Weaks’s reasons for promoting Childs were prextual. Unlike the co-workers’
affidavits in Rachells that described numerous, specific incidents where the defendant had been
nonresponsive to minority employees’ complaints, and had promoted lesser qualified Caucasian
employees rather than minority employees, Smith’s claims do not provide concrete examples of
discrimination by Weaks that sufficiently serve as probative evidence that his reasons for
promoting Childs were pretext for race discrimination in Plaintiff’s case.
None of the evidence offered by Plaintiff “cast[s] doubt on the basis in fact of
Defendant’s proffered legitimate, non-discriminatory reasons” for promoting Childs. Bartlett,
421 F. App’x at 492 (internal citation omitted). The Court’s role in Title VII cases “is to prevent
unlawful hiring practices, not to act as a ‘super personnel department’ that second guesses
employers’ business judgments.’” Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 462 (6th Cir.
2004) (quoting Simms v. Oklahoma ex rel. Dep’t of Mental Health and Substance Abuse Servs.,
165 F.3d 1321, 1330 (10th Cir. 1999)). Because no reasonable juror could find that Weaks’s
lawful reasons for promoting Childs were pretext for race discrimination, Defendant is entitled to
summary judgment on these claims. They are therefore DISMISSED.

40

B.

Hostile Work Environment 6
1.

Statute of Limitations

Defendant challenges some of the factual allegations underlying Plaintiff’s hostile work
environment claim on timeliness grounds, insisting that the THRA’s statute of limitations
precludes the Court from considering these time-barred incidents. (D.E. 47-1 at 8–9.) A claim
under the THRA must be filed “within one (1) year after the alleged discriminatory practice
ceases . . . .” Tenn. Code Ann. § 4-21-311(d). “A discrete discriminatory act ‘ceases’ as of the
time it occurs, not as of the time the consequences of the act cease.” Booker v. Boeing Co., 188
S.W.3d 639, 645 (Tenn. 2006). The “THRA’s one year limitations period for bringing a direct
court action is not tolled while administrative charges are pending with the THRC or the EEOC.”
Burnett v. Tyco Corp., 932 F. Supp. 1039, 1044 (W.D. Tenn. 1996).
In some instances, however, acts occurring outside the THRA’s one-year limitations
period can be considered. The Tennessee Supreme Court recognizes the ‘continuing violation’
exception, which “allows a plaintiff to bring a claim for discriminatory conduct that occurs
outside the limitations period if the discriminatory conduct is sufficiently related to conduct
occurring within the limitations period.” Booker, 188 S.W.3d at 643. The Tennessee Supreme
Court recognizes two instances in which this exception applies:
The first category arises where there is some evidence of present discriminatory
activity giving rise to a claim of a continuing violation, for example where an
employer continues to presently impose disparate work assignment[s] or pay rates
between similarly situated employee groups. Keys to establishing this exception
is proof that at least one of the forbidden discriminatory acts occurred within the
relevant limitations period.
6

Defendant contends that Plaintiff’s Title VII hostile work environment claim is not properly before the
Court because he failed to allege the claim in his EEOC charge. (D.E. 47-1 at 7 n.1.) Plaintiff concedes this, but
states that the claim was also brought pursuant to the THRA. (D.E. 88 at 9.). Therefore, the Court DISMISSES his
Title VII hostile environment claim. See Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013)
(affirming district court’s grant of summary judgment in favor of the defendant after the plaintiff did not contest the
arguments raised in defendant’s motion).

41

The second category of “continuing violation” arises where there has been a
longstanding and demonstrable policy of discrimination such as an established
and repeated pattern of paying men more than women. To constitute such an
established pattern, the plaintiff must clearly demonstrate some “overarching
policy of discrimination,” and not merely the occurrence of an isolated incident of
discriminatory conduct.

Id. (quoting Spicer v. Beaman Bottling Co., 937 S.W.2d 884, 889–90 (Tenn. 1996)). This
exception does not apply to discrete incidents or individual acts of discrimination; it applies
when discriminatory acts take place over time. Id. at 643–44. In this context, “discrete” refers to
something that is “separate and distinct; not attached to others; unrelated.” Id. at 648. Plaintiff’s
complaint was filed on March 12, 2013.

(D.E. 1.)

Therefore, to be within the THRA’s

limitations period, the discriminatory practices at issue would have needed to cease no earlier
than March 12, 2012, or be sufficiently related to conduct occurring within the limitations period
to avoid being time-barred.
In support of his hostile work environment claim, Artis recalled finding a clipped
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. (D.E. 56 at 15; Artis Dep. at 193–99,
D.E. 50.) Plaintiff testified that this incident occurred at least five years prior to his deposition,
which took place on January 22, 2014. (Id. at 196.) Plaintiff informed management about the
drawing and it was removed.

(Id. at 194.)

This isolated incident is the kind of discrete

discriminatory practice that is time-barred by the THRA’s statute of limitations. Artis has not
connected this one act to any present discriminatory activity, or shown that the cartoon was part
of a longstanding and demonstrable policy of discrimination by the Defendant. See Booker, 188
S.W.3d at 643. While Plaintiff testified that there was currently some offensive writing and
symbols—including a swastika—on a toilet paper dispenser at work, (Artis Dep. at 197, D.E.
42

50), this is the kind of separate and distinct activity to which the ‘continuing violation’ exception
would not apply. Plaintiff could not recall when he saw the offensive writing on the toilet paper
dispenser, but only that it “always been there.” (Id.) He “cannot use the continuing violation
doctrine to link [a] distant event[] to those incidents that took place within the limitations
period.” El-Zabet v. Nissan N. Am., Inc., 211 F. App’x 460, 465 (6th Cir. 2006). Therefore, this
incident is time-barred and cannot be considered by the Court.
2.

Remaining Discriminatory Practices

Turning now to the acts that are not time-barred, THRA hostile work environment claims
are analyzed using the same standards as the equivalent Title VII claim. See Bailey v. USF
Holland, Inc., 526 F.3d 880, 885 n.1 (6th Cir. 2008). To succeed on a claim of a racially hostile
work environment, a plaintiff must demonstrate that “(1) [he] belonged to a protected group, (2)
[he] was subject to unwelcome harassment, (3) the harassment was based on race, (4) the
harassment was sufficiently severe or pervasive to alter the conditions of employment and create
an abusive working environment, and (5) the defendant knew or should have known about the
harassment and failed to act.” Williams v. CSX Transp. Co., 643 F.3d 502, 511 (6th Cir. 2011).
The parties’ arguments focus on the third and fourth elements.
a.

Based on Race

FB insists that several incidents of alleged harassment relied on by Plaintiff were not
based on his race. (D.E. 47-1 at 11; D.E. 84 at 16–17.) “[T]he third element limits the scope of
[the] analysis: only harassment based on the plaintiff’s race may be considered.” Williams, 643
F.3d at 511. “A plaintiff may prove that harassment was based on race by either (1) direct
evidence of the use of race-specific and derogatory terms or (2) comparative evidence about how
the alleged harasser treated members of both races in a mixed-race workplace.”

43

Id.

“Harassment is based on race when it would not have occurred but for the plaintiff’s race; the
harassing conduct need not be overtly racist to qualify.” Id. (citing Clay v. United Parcel Serv.,
Inc., 501 F.3d 695, 706 (6th Cir. 2007)).
i.

Sherry Childs

Artis refers to his workplace interactions with Childs as evidence of a hostile work
environment. (D.E. 56 at 15.) He recalled Childs stating, “People need to do their damn job.”
(Artis Dep. at 136, D.E. 50.) Plaintiff was offended by Childs’s profanity, but was not sure if
this comment was directed at him. (Id.) He remembered two employees telling him that Childs
called him a “Facebook Christian” and “Biblethumper”, but that she never said those names
directly to him. (Id. at 136–37.) Plaintiff did not report the name-calling, but did complain to
Weaks and Kurtz about Childs speaking to other employees about his job performance. (Id. at
142–43.) He testified that, while at a morning meeting, he got into a verbal altercation with
Childs after she told the meeting attendees that they could not leave until she was finished
speaking. (Id. at 143–44.) Plaintiff told Childs she was being very rude, at which point she
stuck her thumb two-to-three inches from his face. (Id. at 144–47.) Plaintiff reported this
incident to Kurtz. (Id. at 147–48.)
Artis described an incident on February 14, 2013 when he left his work station to use the
restroom. (Id. at 149.) After finishing, Plaintiff ran into Kurtz, who told him that several people
were looking for him, and that Childs told Weaks that Plaintiff had been absent for thirty
minutes. (Id. at 149–50.) Weaks was waiting at Plaintiff’s workstation and the two discussed
the allegation. (Id. at 150.) Plaintiff disputed the length of time he was supposedly away, and
told Weaks that Childs was lying. (Id.) He recalled that Childs corrected her story and said that
he might have been away only fifteen minutes. (Id. at 153–54.) Kurtz decided that all of the

44

parties, including Artis, Weaks, and Childs, needed to meet and discuss the working conditions
in Department 2195. (Id. at 156.) Plaintiff, feeling “emotionally, just broken,” did not want to
meet the next day. (Id.) Instead, the parties conducted a formal meeting in September 2013,
where Plaintiff and Childs discussed their frustrations and apologized to each other. (Id. at 273–
75.) Artis admitted that after the meeting “that hostility is no longer there between [them.]” (Id.
at 277.) He stated that he would feel comfortable going to Kurtz if any other issues arose, and
that he and Childs were now working together. (Id. at 277–78.)
Artis has not provided any direct evidence that Childs’s workplace treatment was based
on his race. None of her actions or comments involved the use of race-specific or derogatory
terms. His comparative evidence is also unpersuasive. Tyus, an employee in Department 2195,
stated, in response to the question, “Have you ever seen Sherry spaz out at a white employee?”
that “[Childs] cuts everybody’s throat.” (Tyus Dep. at 56, D.E. 69-1.) Weaks testified that
Childs “can make mountains out of molehills,” in regards to workplace interactions. (Weaks
Dep. at 145, D.E. 61.) No reasonable jury could conclude that these incidents were based on
Plaintiff’s race. Therefore, they will not be considered for the purposes of Plaintiff’s hostile
work environment claim.
ii.

Bob Battle

At a date unknown, but sometime after Artis filed his June 26, 2012 EEOC charge, he
was assisting Kay Meadows in Defendant’s shipping and receiving department. (D.E. 56 at 15;
Artis Dep. at 267–68, D.E. 50.) After completing his tasks, Battle told Artis “Your job is done
here.” (Id. at 268.) Artis recalled that he had finished working on a specific job when Battle
made this comment. (Id.). He interpreted Battle’s comment as hostile. (Id.)

45

Artis offers no direct evidence that Battle used any race-specific or derogatory terms. His
comparative evidence is equally unavailing, as Tyus testified that he felt comfortable going to
Battle if he was being discriminated against. (Tyus Dep. at 59, D.E. 69-1). Tyus described
Battle as a good guy with a “dry sense of humor,” and “real business oriented like.” (Id.) In the
times that Tyus has interacted with Battle, it has “never been nothing negative.” (Id. at 60.)
Tom White, Battle’s supervisor, testified that Tate Scott and Kim Quick, two Caucasian
employees, had lodged complaints about Battle’s attitude and demeanor, and that his
management style is best described as “my way or the highway.” (Tom White Dep. at 28–30,
D.E. 78.)

No reasonable jury could conclude this incident was based on Plaintiff’s race.

Therefore, it will not be considered for the purposes of Plaintiff’s hostile work environment
claim.
iii.

Bathroom Monitoring

Artis asserts that African American employees do not have the same privileges as
Caucasian employees, which includes enhanced bathroom monitoring. (D.E. 56 at 15; Artis
Dep. at 165.) The basis for this claim is Plaintiff’s own observations 7, which are insufficient to
raise a genuine issue of material fact. See Grizzell v. City of Columbus Div. of Police, 461 F.3d
711, 724 (6th Cir. 2006) (“It is well settled that mere personal beliefs, conjecture and speculation
are insufficient to support an inference of discrimination.”) (internal quotation marks and internal
citation omitted). Therefore, this incident will not be considered for the purposes of Plaintiff’s
hostile work environment claim.
b.

Severe or Pervasive

7

Plaintiff claims that other African American employees have experienced bathroom monitoring, (D.E. 56
at 15), but provides no support for this assertion.

46

The remaining examples of severe or pervasive racial harassment alleged to have
occurred include: (1) the rubber chicken hung in an unfinished office; (2) two books given to
Plaintiff by Selph; (3) Childs’s racial comments; (4) the phrase “You people” being uttered at
African American employees by unnamed FB employees; (5) generalized mistreatment of
African American employees; and (6) bathroom graffiti.

(D.E. 56 at 14–15.).

Defendant

contends it is entitled to summary judgment on this claim because these incidents do not rise to
the level of severe or pervasive harassment sufficient to alter the conditions of Plaintiff’s
employment and create an abusive working environment. (D.E. 84 at 13–17.)
“To assess the fourth prong of an asserted prima facie case, [the Court] must examine the
totality of the circumstances.” Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009)
(citing Harris v. Forklift Sys., Inc. 510 U.S. 17, 23 (1993)). In considering the totality of the
circumstances, courts look at “‘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. (quoting Harris, 510 U.S.
at 23)); Craig-Wood v. Time Warner N.Y. Cable LLC, 549 F. App’x 505, 510 (6th Cir. 2014)
(“‘Harassment’ is actionable under a hostile work environment theory if ‘the alleged conduct
constituted an unreasonably abusive or offensive work-related environment or adversely affected
the employee’s ability to do his or her job.’”) (quoting Moore v. KUKA Welding Sys. & Robot
Corp., 171 F.3d 1073, 1079 (6th Cir. 1999)).
“Under this totality-of-circumstances test, ‘the issue is not whether each incident of
harassment standing alone is sufficient to sustain the cause of action in a hostile environment
case, but whether—taken together—the reported incidents make out such a case.’” Waldo v.
Consumers Ener. Co., 726 F.3d 802, 814 (6th Cir. 2013) (quoting Williams v. Gen. Motors

47

Corp., 187 F.3d 553, 562 (6th Cir. 1999)). “This analysis contains an objective and subjective
component.”

Craig-Wood, 549 F. App’x at 510 (citing Harris, 510 U.S. at 21).

“The

environment must be of the sort that ‘a reasonable person would find hostile or abusive,’ and the
[plaintiff himself] must ‘subjectively perceive the environment to be abusive.’”
Bailey, 526 F.3d at 886).
environment.

Id. (quoting

Merely offensive conduct does not establish a hostile work

See Harris, 510 U.S. at 21.

The plaintiff must describe conduct that

“unreasonably interfere[es] with [his] work performance and creat[es] an objectively
intimidating, hostile, or offensive work environment.” Grace v. USCAR, 521 F.3d 655, 658 (6th
Cir. 2008).
i.

Chicken 8

The “chicken” episode occurred sometime in 2012, when Artis saw a rubber chicken
hanging by a noose in the window of an unfinished office. (Artis Dep. at 200–01, D.E. 50.) He
did not report the incident. (Id. at 201–02.) The chicken remained hanging for more than a day,
but was taken down soon after. (Id.)
ii.

Selph

Sometime after June 2012, Selph gave Artis two books that he found while cleaning his
shed. (Selph Dep. at 21, D.E. 70-3.) While Selph thought it would be “a nice gesture” to give
the books to Artis, Artis viewed this differently, testifying that, upon receiving the books, he was
offended and “began to cry.” (Id. at 253.)
iii.

Childs

Artis testified that Childs made two racially offensive comments after being promoted to
Cell Leader in March 2012. (Id. at 129–32.) One involved her saying, “I can get it here faster
8

Artis could not recall the exact time he saw the rubber chicken. For the purposes of this motion, drawing
all reasonable inferences in favor of the non-moving party, the Court will consider this incident as having occurred
within the THRA’s statute of limitations.

48

with a boatload of Chinese children,” in regards to a printer not arriving on time. (Id. at 129.)
The second incident involved Childs asking Artis if he was talking about Ethiopia after Artis told
a story to Tyus about airline pilots’ low salaries. (Id. at 130–31.) Artis stated that Childs did not
say anything about Ethiopia being a poor black country, but that he interpreted her comment as
racially offensive. (Id. at 131–33.) Artis did not say anything to Childs after she made either
comment. (Id. at 129–30, 134.) Tyus testified that someone told him Childs said something
about Ethiopia, but that he was not present when she made the comment. (Tyus Dep. at 58, D.E.
69-1.)
iv.

“You people”/Discriminatory Atmosphere

Artis claims that African-American employees are called “you people”, but testified that
he could not recall a single time when this occurred. (D.E. 56 at 15; Artis Dep. at 293, D.E. 50.)
Based on this testimony, the Court will not consider this allegation for the purposes of Plaintiff’s
hostile work environment claim. See Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 719
(6th Cir. 2012) (“We cannot assume Plaintiff[] [was] aware of those things that [he] did not
discuss in hundreds of pages of depositions. Such an assumption would overstep the reasonable
inferences we are obliged to draw in favor of the non-moving party on summary judgment.”).
Similarly, Plaintiff offers the discriminatory atmosphere evidence to bolster his hostile
environment claim. (D.E. 56 at 15.) While a court may consider instances in which a plaintiff
“gained second-hand knowledge of a particular incident of harassment,” Berryman, 669 F.3d at
719–20, Plaintiff has not explained whether he knew about the incidents referenced in his coworkers EEOC charges. Therefore, these will not be considered for the purposes of Plaintiff’s
hostile work environment claim.
v.

Offensive Graffiti

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The offensive writing on the toilet paper dispenser in Defendant’s restroom is not the
kind of reprehensible graffiti that has been found sufficient, along with other incidents, to
support a hostile work environment claim. See Armstrong v. Whirlpool Corp., 363 F. App’x
317, 326 (6th Cir. 2010) (finding that the plaintiff’s viewing of racist graffiti in the workplace
restroom over a nineteen year period was sufficient, taken in consideration with other incidents,
to allow his hostile work environment claim to survive summary judgment).
vi.

Conclusion

Left with these remaining allegations, Plaintiff has “ultimately failed to show that the
alleged harassment was ‘severe or pervasive.’” Michael, 496 F.3d at 601 (quoting Harris, 510
U.S. at 21.) These examples were not severe. While a rubber chicken hanging from a noose
may be offensive, it was never seen again after it was taken down. Childs’s two comments, and
Selph giving Plaintiff two books, does not rise to the level of conduct that is “physically
threatening or humiliating.” Harris, 510 U.S. at 23; Curry v. SBC Commc’ns, Inc., 669 F. Supp.
2d 805, 835 (E.D. Mich 2009) (“It is true that the noose by itself is not as compelling a case for a
hostile work environment as it would be with other racially-charged comments.”).
These incidents were also not pervasive. The chicken incident occurred sometime in
early 2012, while Selph gave Artis two books sometime after June 2012. Childs’s comments
were also isolated—Artis could only recall two instances where she used racially connected
language after her promotion in March 2012. See Clay, 501 F.3d at 707–08 (holding that fifteen
specific incidents of Caucasian employer disciplining African American employee harsher than
similarly situated Caucasian employees spanning a two-year period were mere offensive
utterances and not actionable under Title VII). Even if Plaintiff’s discriminatory atmosphere
evidence is considered, these incidents occurred over a period of years. A majority of the

50

employees’ allegations do not involve the kind of severe or pervasive acts necessary to support a
hostile work environment claim. See Wixson v. Dowagiac Nursing Home, 87 F.3d 164, 171 (6th
Cir. 1996) (holding that the plaintiffs failed to create issue of fact by alleging numerous instances
of disparate treatment and hostile work environment in conclusory terms with no reference to
names, times, and occasions).

It is also questionable whether Plaintiff had second-hand

knowledge of the incidents alleged by his co-workers.

Defendant is entitled to summary

judgment on this claim. It is therefore DISMISSED.
C.

Retaliation 9
FB asserts Plaintiff’s THRA retaliation claim fails as a matter of law because certain

supervisors had no knowledge of his EEOC charge, and, alternatively, he never suffered an
adverse employment action. (D.E. 47-1 at 15–16; D.E. 84 at 18.) Defendant states that Plaintiff
was never demoted, reassigned, or disciplined, and, in fact, received a pay increase and favorable
evaluation following the filing of his EEOC charge. (D.E. 47-1 at 15–16.)
Artis highlights several incidents following the filing of his EEOC charge that he believes
shows retaliation by Defendant, including: (1) Childs subjecting Plaintiff to “relentless abusive
behavior at work,” such as “vent[ing] against him,” and talking about his job performance to
other employees; (2) Weaks becoming overly critical of Plaintiff’s work, allowing Childs to act
in an abusive way towards him, and blaming him for mistakes that were not his fault; (3) Selph
giving Plaintiff two books, and assisting in monitoring his bathroom breaks; (4) stripping
Plaintiff of Cell Leader duties; (5) removing Plaintiff from the management track; and (6) Battle

9

Defendant insists that Plaintiff’s Title VII retaliation claim is not properly before the Court since he failed
to allege retaliation in his EEOC charge. (D.E. 47-1 at 15.) Plaintiff concedes this, but states that the claim was also
brought pursuant to the THRA. (D.E. 56 at 17.) Therefore, the Court DISMISSES his Title VII retaliation claim.
See Brown, 545 F. App’x at 372.

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telling Plaintiff that his “job is done here.” (D.E. 56 at 19–20.) Plaintiff asks the Court to also
consider the discriminatory atmosphere evidence. (Id.)
The THRA makes it unlawful to retaliate against an employee for opposing a
discriminatory practice or filing a charge of discrimination that is prohibited under the statute.
See Tenn. Code Ann. § 4-21-301(1). The analysis for THRA retaliation claims is identical to the
analysis used for Title VII retaliation claims. Bailey, 526 F.3d at 885 n.1. In cases such as this,
where there is no direct evidence of retaliation, a THRA retaliation claim is analyzed using the
McDonnell Douglas burden-shifting framework. See Davis v. FedEx Corp. Servs., Inc., No. 112902, 2014 WL 1216518, at *9 (W.D. Tenn. Mar. 24, 2014).
Under this framework, Plaintiff must show that he (1) engaged in a protected activity; (2)
that his superiors knew of his protected conduct; (3) that his superiors took an adverse
employment action against him after his protected conduct, and (4) that there was a causal
connection between the exercise of Plaintiff’s protected right and the adverse employment action
taken by his superiors. See Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 504 (6th
Cir. 2014). If Plaintiff makes out his prima facie case, the burden shifts to FB to produce a
legitimate, non-retaliatory reason for its action. Id. If FB produces a sufficient explanation, the
burden shifts back to Plaintiff to put forward competent evidence from which a reasonable jury
could conclude the stated reason was pretextual. Id. It is undisputed that filing an EEOC charge
is protected conduct. FB disputes whether Selph or Childs knew that Artis filed an EEOC
charge 10, and whether it took any materially adverse action against him. (D.E. 47-1 at 15–16;
D.E. 84 at 18–19.)

10

Defendant first raised the “knew of protected conduct” argument in its reply. (D.E. 84 at 18.) Plaintiff
filed a motion requesting permission to submit a sur-reply addressing “new arguments regarding retaliation that
Defendant made in its reply.” (D.E. 86-1 at 2.) The Court granted this request in order to “further aid [Plaintiff] in

52

1.

Knew of Protected Conduct

Artis must demonstrate that “the individuals charged with taking the adverse employment
action knew of the protected activity.” Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002).
This can be done by direct or circumstantial evidence. Id. Selph testified that he was not aware
Artis filed an EEOC charge when he gave him the books in June 2012. (Selph Dep. at 105, D.E.
70-3.) Childs related that she first became aware of Artis’s complaints not long after he filed this
suit on March 12, 2013. (Childs Dep. at 71, D.E. 69.) Artis conceded that he did not know who
at FB was aware that he filed an EEOC charge. (Artis Dep. at 242–43, D.E. 50.) He was only
“sure it’s not a very quiet-kept thing.” (Id. at 243.) When asked directly, Plaintiff was not sure
if Childs knew about his EEOC charge. (Id. at 243–44.)
Based on the evidence, Plaintiff has not presented specific facts that would permit a jury
to infer that Childs or Selph knew about his filing of the EEOC charge. See Mulhall, 287 F.3d at
552 (holding that “conspiratorial theories” are not enough to show a retaliating actor knew of
plaintiff’s protected activity). Plaintiff has not provided any dates when Childs subjected him to
relentless and abusive behavior at work, except for the February 14, 2013 incident, but Childs
testified she had no knowledge of Plaintiff’s complaints until he filed this suit in March 2013.
Artis has failed to raise a factual dispute regarding whether his protected activity was known to
Childs or Selph. See Kyle-Eiland v. Neff, 408 F. App’x 933, 941 (6th Cir. 2011) (affirming
district court’s dismissal of retaliation claim because the defendant “squarely denie[d] any
knowledge” of plaintiff’s protected activity and the plaintiff presented no evidence suggesting
otherwise). Therefore, these incidents will not be considered for the purposes of Plaintiff’s
retaliation claim.

addressing the issues raised in the Defendant’s Motion for Summary Judgment.” (D.E. 87 at 1.) Plaintiff did not
address this new argument in his sur-reply.

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2.

Materially Adverse Action

Plaintiff submits that: (1) Weaks becoming overly critical of his work, allowing Childs to
act in an abusive way towards him, and blaming him for mistakes at work that were not his fault;
(2) stripping Plaintiff of his Cell Leader duties; (3) removing him from the management track;
(4) Battle telling Plaintiff that his “job is done here,”; (5) bathroom monitoring; and (6)
discriminatory atmosphere evidence are materially adverse actions because a reasonable
employee would have been dissuaded from supporting a discrimination charge. (D.E. 56 at 19–
20.)
To sustain a prima facie case of retaliation, “[t]he third element requires a plaintiff to
show that ‘a reasonable employee would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Goodsite v. Norfolk S. Ry. Co., 573 F. App’x 572, 582
(6th Cir. 2014) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
This is an objective test, and “‘[a]n employee’s decision to report discriminatory behavior cannot
immunize that employee from those petty slights or minor annoyances that often take place at
work.’” Id. (quoting White, 548 U.S. at 68). The burden of showing an adverse employment
action is “less onerous in the retaliation context than in the anti-discrimination context.”
Michael, 496 F.3d at 595–96.
a.

Tom Weaks

Artis contends that Weaks ignored his complaints that Childs was subjecting him to
“relentless abusive behavior at work” after he filed his EEOC charge. (D.E. 56 at 19.) However,
after Plaintiff complained about Childs’s behavior, Kurtz met with all the parties. Artis and
Childs apologized to each other and agreed to work better together. There is no evidence that

54

Weaks condoned Childs’s behavior, or that Plaintiff’s complaints were ignored. Further, many
of the incidents involving Childs fall into the category of petty slights and lack of good manners
that rarely constitute adverse employment actions. See Burlington, 548 U.S. at 69.
As for Weaks’s increased complaints about Plaintiff’s work, while “markedly lower
performance-evaluation scores that significantly impact an employee’s wages or professional
advancement may be materially adverse actions,” Vaughn v. Louisville Water Co., 302 F. App’x
337, 348 (6th Cir. 2008) (internal quotation marks and citation omitted), it is undisputed that
after filing his EEOC charge, Artis received a pay increase and satisfactory score from Weaks on
his 2012 performance evaluation. (Pl.’s Resp. to Def.’s SUMF ¶¶ 59–60, D.E. 57.)
b.

Cell Lead Duties/Management Track

Plaintiff contends that Defendant’s stripping him of his Cell Lead duties was a materially
adverse action. (D.E. 56 at 19.) However, once Childs was promoted to Cell Leader in March
2012, there was no need for the other assemblers to keep performing those duties. There is no
evidence that other assemblers kept performing these duties after Childs’s promotion such that a
jury could infer Plaintiff was the victim of retaliation by the Defendant. Additionally, Childs
was promoted in March 2012, which preceded Plaintiff’s EEOC charge by three months. This is
not the kind of materially adverse action sufficient to support a retaliation claim. See Agrawal v.
Montemagno, 574 F. App’x 570, 576 (6th Cir. 2014) (holding that to qualify as a materially
adverse action, a significant change in employment status must be “more disruptive than a mere
inconvenience or alteration of job responsibilities”) (internal quotation marks and internal
citation omitted).
Artis also claims he was removed from Defendant’s management track in retaliation for
filing his EEOC charge. (D.E. 56 at 19.) Weaks testified that that the company did not have a

55

formal “management track,” but there was a program in which employees could enroll in
continuing education courses and receive reimbursement from the company. (Weaks. Dep. at
155, D.E. 61-1.) While Plaintiff claims he was removed from the track, he admits no one ever
told him he had been removed from the informal management track. (Artis Dep. at 182, D.E.
50.) Plaintiff’s speculation alone cannot support this claim at the summary judgment stage. See
Grizzell, 461 F.3d at 724.
c.

Bob Battle

While Plaintiff asserts that Battle’s comment to him at the shipping & receiving
department was a materially adverse action, the Court finds this comment was nothing more than
a “simple lack of good manners,” that does not rise to the level of a materially adverse action.
See White, 548 U.S. at 68. This incident would not “dissuade[] a reasonable worker from
making or supporting a charge of discrimination.” Id. (internal quotation marks and internal
citation omitted).
d.

Bathroom Monitoring

As noted, Plaintiff’s complaint of increased bathroom monitoring is based on his own
observations and insufficient to support a retaliation claim at the summary judgment stage. See
Grizzell, 461 F.3d at 724.
e.

Discriminatory Atmosphere

Artis does not explain how discriminatory atmosphere evidence is helpful in showing that
Defendant took a materially adverse action against him. At this stage of the McDonnell Douglas
inquiry, the Court must determine whether a plaintiff has produced sufficient evidence to raise a
genuine dispute of material fact that a defendant took illegal action in response to the plaintiff’s
protected conduct.

Discriminatory atmosphere evidence is irrelevant in making that

56

determination because it involves other, non-party employees and generally fails to show what, if
any, materially adverse action a plaintiff experienced. See Clack v. Rock-Tenn Co., 304 F.
App’x 399, 408 (6th Cir. 2008) (affirming the district court’s decision to consider discriminatory
atmosphere evidence only after the plaintiff had established a prima facie retaliation case and the
defendant had offered a legitimate, non-retaliatory reason). Therefore, this evidence will not be
considered for the purposes of whether Plaintiff suffered a materially adverse action.
f.

Conclusion

While the burden for showing materially adverse action is lower for a retaliation claim
when compared to a discrimination claim, the evidence provided by Plaintiff fails to satisfy this
minimal burden. Defendant is entitled to summary judgment on this claim. It is therefore
DISMISSED.
Conclusion
For the reasons set forth above, Defendant’s motion for summary judgment is
GRANTED. Plaintiff’s complaint is hereby DISMISSED in its entirety.
IT IS SO ORDERED this 19th day of March, 2015.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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