Reed v. Inland Intermodal Logistics Services, LLC et al
Filing
74
ORDER granting 36 Motion for Judgment as a Matter of Law. Signed by Judge Samuel H. Mays, Jr on 09/29/2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ELIZABETH REED,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
INLAND INTERMODAL LOGISTICS
SERVICES, LLC,
Defendant.
No. 09-2607
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before
the
Court
is
the
December
16,
2010
Motion
for
Summary Judgment filed by Defendant Inland Intermodal Logistics
Services, LLC (“Inland”) on Plaintiff Elizabeth Reed‟s (“Reed”)
claims arising from her employment at Inland (See Def.‟s Mot.
for Summ. J., ECF No. 36 (“Def‟s Mot.”); Def.‟s Brief in Supp.
of Mot. for Summ J., ECF No. 36-1 (“Def.‟s Mem.”).)
15,
2011,
Reed
(Pl.‟s Mem. In
(“Resp.”).)
responded
Resp.
in
opposition
to
On February
Inland‟s
motion.
to Mot. for Summ. J. 5, ECF No. 50-1
Inland replied on March 2, 2011.
(Def.‟s Reply in
Supp. of Mot. for Summ. J., ECF No. 53.)
Reed commenced this action by filing a complaint for gender
discrimination and wrongful termination in the Chancery Court of
Shelby County, Tennessee, on August 18, 2009, and Inland removed
1
to this Court on September 16, 2009.
Reed alleges that Inland
violated the Tennessee Maternity Leave Act (“TMLA”), Tenn Code
Ann. § 4-21-408; that her termination was retaliatory under the
TMLA; and that she was discriminated against based on race and
gender in violation of the Tennessee Human Rights Act (“THRA”).
Tenn. Code Ann. §§ 4-21-101, et. seq.
for
a
hostile
emotional
distress.
work
distress,
For
the
environment,
and
negligent
following
Reed also brings claims
intentional
infliction
reasons,
infliction
of
Inland‟s
of
emotional
motion
for
summary judgment is GRANTED.
I.
BACKGROUND
The following facts are undisputed unless otherwise stated.1
Reed is an African-American female who was an employee of Inland
from April 10, 2006, to October 22, 2008.
Maintenance
and
Repair
(“M&R”)
1
(Compl. ¶ 3.)
Specialist,
Reed
As a
handled
Inland moved for summary judgment and Reed responded while the previous
edition of the local rules governed actions in this district.
Under that
version, Local Rule 7.2(d)(3) provided that a party opposing a motion for
summary judgment who disputed any of the material facts on which the
proponent relied was to “respond to the proponent‟s numbered designations,
using the corresponding serial numbering, both in the response and by
attaching to the response the precise portions of the record relied upon to
evidence the opponent‟s contention that the proponent‟s designated material
facts are at issue.”
W.D. Tenn. Civ. R. 7.2(d)(3).
In many of her
responses, Reed has not complied with these requirements and fails to provide
any evidence from the record.
(See Pl.‟s Resp. to Statement of Facts in
Supp. of Mot. for Summ. J. 1, ECF No. 69.) Unless otherwise stated, Reed‟s
responses have been disregarded where she has failed to comply with the local
rules. See Akines v. Shelby Cnty. Gov‟t, 512 F. Supp. 2d 1138, 1147-48 (W.D.
Tenn. 2007); see also George v. Vought Aircraft Indus., Inc., No. 3:08-0787,
2009 WL 5217002, at *4 n.2 (M.D. Tenn. Dec. 30, 2009) (applying similar local
rule); Geesling v. Clay Cnty., No. 2:06-0056, 2007 WL 2509671, at *1 n.1
(M.D. Tenn. Aug. 30, 2007) (applying similar local rule). The outcome would
be the same under the current version of the local rules.
See W.D. Tenn.
Civ. R. 56.1(b).
2
maintenance and repair issues for drivers on the road making
deliveries, answered incoming calls from drivers with equipment
issues, and maintained the M&R database.2
(Def.‟s Statement of
Material Fact Not in Dispute Upon Which it Relies in Supp. of
Def.‟s
Mot.
for
Summ.
J.
¶¶
3-4,
ECF
No.
51-3
(“Inland‟s
Statement of Facts”); Pl.‟s Resp. to Statement of Facts in Supp.
of Mot. for Summ. J. ¶¶ 3-4, ECF No. 69 (“Reed‟s Statement of
Facts”).)
During the course of her employment,
Reed
became
pregnant and began missing work, including 26 hours of work in
April 2008.
(Inland‟s Statement of Facts ¶ 7.)
As Reed‟s pregnancy progressed, she prepared for medical
leave
and
approached
her
Certification
of
Dr.
completed
Riseling
Health
stated
that
Reed
would
issues,
but
would
able
delivery.
(Id. ¶ 8-9.)
obstetrician,
Care
and
signed
need
to
Provider
time
return
Dr.
(the
the
off
to
Riseling,
work
a
“Certification”).3
Certification,
for
for
which
pregnancy-related
eight
weeks
after
The Certification also stated that Reed
2
Intermodal transportation involves the use of a single container across
multiple modes of transportation, such as container ships, trains, and
trucks.
See Welcome to Inland Intermodal Logistics Services, LLC, Inland
Intermodal Logistics Services, LLC, http://iils.com/About-Inland-IntermodalLogistics-Services/About-Us.asp (last visited Sep. 6, 2011).
3
Although the Certification of Health Care Provider has not been introduced
into evidence by either party, the form is available on the U.S. Department
of Labor website. See Dep‟t of Labor, Certification of Healthcare Provider,
http://www.dol.gov/whd/regs/compliance/fairpay/wh380.pdf. Under the FMLA, an
employer can require that an employee provide a Certification to prove the
employee has a valid medical reason for his or her leave, and the FMLA
requires that the health care provider who fills out the Certification state
the nature of the medical emergency in depth. Certification, General Rule,
29 C.F.R. § 825.306-.308.
3
would need intermittent leave during her pregnancy, which she
requested.4
While
Reed
was
pregnant,
she
was
moved
to
the
special
projects position, which had the same compensation and benefits
as her former M&R specialist position.5
(Id. ¶ 12.)
Between May
2008 and her last day at Inland, on July 25, 2008, Reed was
absent for the equivalent of four weeks.6
(Id. ¶ 13.)
Inland
moved its offices during this time, and Reed‟s manager packed
her items for her.7
(Id. ¶ 20.)
4
Reed denies that she requested intermittent leave. However, in her
deposition, she admitted that the Certification provided that it would be
necessary for her to work intermittently during her pregnancy and that she
took days off pursuant to her Certification in May 2008. (Dep. of Elizabeth
Read 57:8-20, ECF No. 36-4, Oct. 5, 2010 (“Reed Dep”).) Reed relies on her
affidavit, but it was sworn on July 5, 2011, months after her deposition,
which contradicts the statements in the affidavit. (Reed Aff. 2.) “A party
may not create a factual issue by filing an affidavit, after a motion for
summary judgment has been filed, which contradicts her earlier deposition
testimony.” Barrett v. Whirlpool Corp., 704 F.Supp.2d 746, 753 (M.D. Tenn.
2010). Reed‟s statement that she did not request intermittent leave
contradicts her deposition testimony that the Certification provided for
intermittent leave and that she took leave pursuant to the Certification.
“[A] party cannot create a genuine issue of material fact sufficient to
survive summary judgment simply by contradicting his or her own previous
sworn statement (by, say, filing a later affidavit that flatly contradicts
that party‟s earlier sworn deposition) without explaining the contradiction.”
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999).
Because
Reed does not explain the contradiction, the facts of paragraphs ten and
eleven of Inland‟s Statement of Facts are deemed admitted, although they do
not affect this Court‟s decision.
5
Reed does not dispute that the benefits and compensation were the same for
both positions.
6
Reed argues, based on her affidavit, that Inland told her these days would
not count toward her medical leave. (Reed Aff. ¶ 8.) Reed does not dispute,
however, that she missed the equivalent of four weeks of work.
7
The parties dispute other facts about the move, such as whether or not a
moving company was hired and who told Reed to unplug her computer. (Inland‟s
Statement of Facts ¶¶ 15-20; Reed‟s Statement of Facts ¶¶ 15-21.) Because
these facts are not relevant to the case, the Court will not address them and
accepts Reed‟s version for the purpose of summary judgment.
4
After the move to the new office, Inland‟s hallways were
painted.
(Id. ¶ 21.)
Reed expressed concern about the effects
of paint fumes on her unborn child and asked to move her station
away from the paint.
(Id. ¶ 22-23.)
She was given permission
to leave for the day and was not disciplined for it.
(Id. ¶ 24-
25; Aff. of Elizabeth Reed ¶ 18, ECF No. 69-1 (“Reed Aff.”).)
Reed continued to have difficulty with her job in the
special projects position and with other assignments during this
period.
Reed
was
unable,
for
instance,
to
reach
filing cabinets because she could not bend over.
Statement
of
Facts
¶
27.)8
Because
of
Reed‟s
the
lower
(Inland‟s
difficulties,
Inland arranged for her to work as a receptionist, again with
the same compensation and benefits.
(Id. ¶ 29.)
Her duties
included answering phones, greeting visitors, and distributing
mail.
Because a portion of the mail had to be placed in baskets
on the floor, she had difficulty.
(Id. ¶¶ 30-32.)
Reed also
had difficulty going downstairs to check the mail.
When she
complained to Tera Jackson (“Jackson”), Inland‟s Human Resources
8
Although Reed expressed uncertainty about her precise duties in the special
projects position in her Response to Inland‟s Statement of Facts, she
acknowledged in her affidavit that she was responsible for all filing. (Reed
Aff. ¶ 20.) Reed also conceded she had difficulty placing mail in baskets on
the floor. (Reed Aff. ¶ 22.) Paragraph 27 of Inland‟s Statement of Facts is
therefore deemed admitted.
5
Manager,
Jackson
spoke
problem.
to
Reed‟s
supervisor
to
remedy
the
(Id. ¶¶ 34-36.)9
Reed went on full-time maternity leave on July 25, 2008.
(Id. ¶ 39.)
She did not contact anyone at Inland until she
received a letter from Jackson on September 24, which informed
Reed that her leave would expire on October 7, 2008.
40.)
(Id. ¶
Reed‟s doctor cleared her to return to work on October 7,
2008, but Reed requested that she be allowed to remain on leave
(Id. ¶ 41.)10
until December.
Jackson sent Reed a second notice
on October 7, 2008, explaining that she had to return to work by
October 22, 2008.
Although
Inland
ended,
the
(Id. ¶ 44.)
parties
they
agree
dispute
that,
how
on
October
requested separation notice paperwork.
received
her
separation
notice,
she
Reed‟s
employment
22,
(Id. ¶ 45.)
did
not
Inland to ask why the notice said she had quit.
been treated for emotional distress.
call
2008,
at
Reed
When Reed
anyone
at
She has never
(Id. ¶¶ 48-49.)
She never
reported any incidents of discrimination or harassment to human
9
Reed claims that she had to deliver the mail until she left on maternity
leave. (Reed Aff. ¶ 23.) This allegation directly contradicts her
deposition, where she admits she spoke to Jackson and afterwards did not
handle the mail. (Reed. Dep. 88:12-20.)
10
Reed stated in her deposition that she was medically cleared to return to
work on October 7, 2008. (Reed Dep. 207: 6-7.) Reed‟s Affidavit contradicts
this claim and says that the eight weeks of leave her doctor cleared were
only “standard”. Reed offers no evidence to explain this discrepancy. (Reed
Aff. ¶ 26.) She also provides no date other than October 7, 2008, for which
she was medically cleared to return to work. Reed‟s deposition statement is
controlling despite the other, later statement in her affidavit. Cleveland,
526 U.S. at 806.
6
resources or to her manager, although she was aware that Inland
had a harassment avoidance policy.
This
case
was
initially
(Id. ¶¶ 55-56.)
removed
because
Reed
alleged
violations of the Family and Medical Leave Act (“FMLA”),
U.S.C. § 2601.
2010.
29
The FMLA claims were dismissed on April 27,
(Order Granting in Part and Denying in Part Def.‟s Mot.
to Dismiss and Granting Pl.‟s Mot. to Am., ECF No. 26 (“Order
Granting
in
Part
Def.‟s
Mot.
to
Dismiss”).)
The
remaining
claims are now before the Court.
II.
JURISDICTION AND CHOICE OF LAW
Reed‟s initial complaint alleged breaches of federal law, and
this Court had original jurisdiction over her federal claims
under 28 U.S.C. § 1331 and supplemental jurisdiction over her
related
state
law
claims
under
28
U.S.C.
§
1367.
Although
Reed‟s federal claims have been dismissed (See Order Granting in
Part Def.‟s Mot. to Dismiss), the Court retains discretion to
adjudicate the supplemental claims.
28 U.S.C. § 1367(c)(3).
The Court is familiar with this matter, having handled it since
September 2009.
outcome
for
“judicial
Dismissal or removal would merely delay the
an
unknown
economy
litigation”
jurisdiction.
counsel
and
period
the
of
time.
avoidance
exercise
of
the
of
The
interest
multiplicity
Court‟s
in
of
supplemental
Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d
1178, 1182 (6th Cir. 1993).
7
When a federal court exercises supplemental jurisdiction,
it is bound to apply the choice of law rules of the forum state.
Menuskin
v.
Williams,
145
F.3d
755,
761
(6th
Cir.
1998)
(citations omitted); accord Girgis v. Countrywide Home Loans,
Inc., 733 F. Supp. 2d 835, 850-51 (N.D. Ohio 2010) (citations
omitted).
For tort claims, Tennessee follows the “most significant
relationship” rule, which provides that “the law of the state
where the injury occurred will be applied unless some other
state has a more significant relationship to the litigation.”
Hataway
v.
McKinley,
830
S.W.2d
53,
59
(Tenn.
1992).
To
determine which state has the “most significant relationship,”
Tennessee courts consider seven principles:
(a) the
systems,
needs
of
the
interstate
and
international
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states
and the relative interests of those states in the
determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field
of law,
(f) certainty,
result, and
predictability,
and
uniformity
of
(g) ease in the determination and application of the
law to be applied.
8
Timoshchuk
v.
Long
of
Chattanooga
Mercedes-Benz,
No.
E2008-
01562-COA-R3-CV, 2009 WL 3230961, at *10 (Tenn. Ct. App. Oct. 8,
2009) (quoting
(1971)).
Restatement (Second) of Conflict of Laws
§ 6
When applying these principles, courts must consider
four factors: “(a) the place where the injury occurred, (b) the
place where the conduct causing the injury occurred, (c) the
domicile,
residence,
nationality,
place
of
incorporation
and
place of business of the parties, [and] (d) the place where the
relationship, if any, between the parties is centered.”
Id. at
*11 (quoting
§ 145
(1971)).
Restatement (Second) of Conflict of Laws
“[T]hese contacts are to be evaluated according to
their relative importance with respect to the particular issue.”
Id. (quoting
Restatement (Second) of Conflict of Laws
§ 145
(1971)).
The
claims.
injury
parties
assume
that
Tennessee
law
governs
(See, e.g., Def.‟s Mem. 18; Reply 4-5.)
occurred
in
Tennessee.
Reed
worked
for
Reed‟s
The alleged
Inland
in
Tennessee and says she suffered harm from Inland‟s conduct in
Tennessee.
Both Reed and Inland are residents of Tennessee.
The relevant employment relationship between Reed and Inland was
centered
in
relationship
principle
Tennessee.
to
weighs
the
No
state
litigation
against
than
applying
9
has
a
more
Tennessee.
Tennessee
significant
No
relevant
substantive
law.
See Timoshchuk, 2009 WL 3230961, at *10.
Therefore, the Court
will apply Tennessee substantive law to Reed‟s claims.
III. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, on motion of a
party, the 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 party moving for summary judgment
“bears the burden of clearly and convincingly establishing the
nonexistence of any genuine [dispute] of material fact, and the
evidence as well as all inferences drawn therefrom must be read
in a light most favorable to the party opposing the motion.”
Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.
1986); see Fed. R. Civ. P. 56(a).
The moving party can meet
this burden by pointing out to the court that the respondent,
having had sufficient opportunity for discovery, has no evidence
to support an essential element of her case.
See Fed. R. Civ.
P. 56(c)(2); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479
(6th Cir. 1989).
When
confronted
with
a
properly
supported
motion
for
summary judgment, the respondent must set forth specific facts
showing that there is a genuine dispute for trial.
Civ.
P.
56(c).
A
genuine
dispute
for
trial
See Fed. R.
exists
if
the
evidence is such that a reasonable jury could return a verdict
10
for the nonmoving party.
See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
The nonmoving party must “do more
than simply show that there is some metaphysical doubt as to the
material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
supported
summary
pleadings.
(1986).
judgment
One may not oppose a properly
motion
by
mere
reliance
on
the
See Celotex Corp. v. Catrett, 477 U.S. 317, 324
Instead, the nonmovant must present “concrete evidence
supporting
[her]
claims.”
Cloverdale
Equip.
Co.
v.
Simon
Aerials, Inc., 869 F.2d 934, 937 (6th Cir. 1989) (citations
omitted); see Fed. R. Civ. P. 56(c)(1).
The district court does
not have the duty to search the record for such evidence.
See
Fed. R. Civ. P. 56(c)(3); InterRoyal Corp. v. Sponseller, 889
F.2d 108, 111 (6th Cir. 1989).
point
out
specific
evidence
The nonmovant has the duty to
in
the
record
that
sufficient to justify a jury decision in her favor.
would
be
See Fed. R.
Civ. P. 56(c)(1); InterRoyal Corp., 889 F.2d at 111.
“Summary
judgment is an integral part of the Federal Rules as a whole,
which are designed to secure the just, speedy, and inexpensive
determination
of
every
procedural shortcut.”
action[,]
rather
than
a
disfavored
FDIC v. Jeff Miller Stables, 573 F.3d
289, 294 (6th Cir. 2009) (internal quotation marks and citations
omitted).
IV.
ANALYSIS
11
Reed
created
claims
a
that
hostile
Inland
work
violated
environment,
the
and
TMLA,
was
the
THRA,
responsible
for
negligent and intentional infliction of emotional distress. None
of Reed‟s claims is well taken.
A. TENESSEE MEDICAL LEAVE ACT
The TMLA requires that employers with at least one hundred
full-time
employees
permit
female
employees
to
take
up
to
sixteen weeks of maternity leave. Tenn. Code Ann. § 4-21-408(a),
(d)(3).
This exceeds the FMLA, which requires no more than
twelve weeks of leave.
20 U.S.C. § 2612(a)(1).
The THRA also
states that maternity leave shall not affect an employee‟s right
to receive any other employment benefits.
Tenn. Code Ann. § 4-
21-408(c)(1).
Inland states that it employs fewer than fifty people and
is not covered by the TMLA.
(Aff. of Tera Jackson ¶ 4, ECF No.
36-6 (“Jackson Aff.”); Ex. B, Tenn. Dep‟t of Labor and Workforce
Development, ECF No. 36-3.)
As proof, Inland has submitted an
affidavit from its Human Resources Manager, Jackson, and a copy
of
its
Report.
Quarterly
(Id.)
Labor
and
Workforce
Development
Department
Reed responds that she “is not certain of an
exact number of employees that Inland employed,” but provides no
evidence to controvert Jackson‟s affidavit and exhibit.
Aff. ¶ 4.)
the
(Reed
“In order to defeat [a] motion for summary judgment,
non-moving
party
must
present
12
probative
evidence
that
supports its complaint.”
Walker v. Moldex Metric, Inc., No.
2:10-CV-164, 2011 WL 3044529, at *2 (E.D. Tenn. July 25, 2011).
Because the only evidence in the record demonstrates that the
TMLA does not apply to Inland, summary judgment is GRANTED on
Reed‟s TMLA claim.
B. TENNESSEE HUMAN RIGHTS ACT
The
THRA
makes
it
unlawful
for
an
employer
to
“to
discriminate against an individual with respect to compensation,
terms, conditions, or privileges of employment because of such
individual‟s race, creed, color, religion, sex, age, or national
origin.”
Tenn. Code Ann. § 4-21-401(a)(1).
The purpose and intent of the THRA is to “[p]rovide for
execution
within
Tennessee
of
the
policies
embodied
in
the
federal Civil Rights Act,” Tenn. Code. Ann. § 4-21-101(a)(1),
and
claims
brought
under
the
THRA
have
traditionally
been
subject to the same analytical framework as Title VII claims.
See, e.g., Campbell v. Florida Steel Corp., 919 S.W.2d 26, 31
(Tenn. 1996).
This framework was first articulated in McDonnell
Douglas Corp v. Green.
However,
Tennessee
in
Supreme
411 U.S. 792, 802-05 (1973).
Gossett
v.
Tractor
Court
held
that
Supply
“the
Co,
Inc.,
McDonnell
the
Douglas
framework is inapplicable at the summary judgment stage because
it
is
incompatible
jurisprudence.”
320
with
S.W.3d
Tennessee
777,
13
785
summary
(Tenn.
judgment
2010).
The
Tennessee Supreme
Court
decided
that a court “must take all
reasonable inferences in favor of [the plaintiff], and discard
all countervailing evidence.”
Id. at 784 (quoting Blair v. W.
Town Mall, 130 S.W.3d 761, 768 (Tenn. 2004)).
Despite Gossett,
both parties assume that McDonnell Douglas applies.
They are
correct because Gossett stated a procedural rule inapplicable in
federal courts and because Gossett is no longer good law in
Tennessee.
Gossett established a Tennessee rule of procedure.
Court must follow federal procedure.
304
U.S.
64,
92
(1939).
In
This
Erie R.R. Co. v. Tompkins,
deciding
whether
a
law
is
substantive or procedural, the court must consider whether the
law is outcome-determinative.
U.S. 99, 107 (1945).
Guaranty Trust Co. v. York, 326
The court‟s decision must be “guided by
the twin aims of the Erie rule: discouragement of forum-shopping
and
avoidance
of
Gasperini v. Center
inequitable
administration
of
the
laws.”
for Humanities, Inc., 518 U.S. 415, 518
(1996) (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965)).
Because the Supreme Court has decided that “the McDonnell
Douglas presumption is a procedural device,” St. Mary‟s Honor
Center v. Hicks, 509 U.S. 502, 521 (1993), federal courts in
Tennessee have held that Gossett decided a procedural matter,
and not a matter of substantive law.
See, e.g., Moling v.
O‟Reilly Auto, Inc., 763 F. Supp. 2d 956, 970-79 (W.D. Tenn.
14
2011); Brindley v. Philips Elec. N. Am Corp., No. 3:11-0352,
2011 U.S. Dist. LEXIS 78519, at *17 n.6 (M.D. Tenn. July 19,
2011); Robinson v. CareFocus, Inc., No. 1:10-CV-208, 2011 U.S.
Dist.
LEXIS
73975,
at
*24
n.
4
(E.D.
Tenn.
July
8,
2011);
Campbell v. Eagle Bend Mfg., No. 3:10-cv-24, 2011 U.S. Dist.
LEXIS 67422, at *6 n.2 (E.D. Tenn. June 22, 2011); Shelton v.
Techpack Am., Inc., No. 2:10-cv-89, 2011 U.S. Dist. LEXIS 49460,
at *14 n.3 (E.D. Tenn. May 6, 2011).
The
Tennessee
Supreme
Court
itself
upheld
the
use
of
McDonnell Douglas at trial, finding that it was “particularly
appropriate” there.
“only
significant
Gossett, 320 S.W.3d at 783.
difference
between
the
state
Thus, the
and
federal
regimes is when a case that fails one of the McDonnell Douglas
components will be dismissed.”
Snead v. Metro. Property and
Casualty Insur. Co., 237 F.3d 1080, 1091 (9th Cir. 2001).
Addressing
summary
judgment,
the
Sixth
Circuit
has
that the mere fact that
[the Federal Rules of Procedure] and [state law] set
forth different standards for plaintiffs at this stage
of litigation . . . is no barrier to the application
of the federal standard . . . .
If [a plaintiff]
cannot produce the minimal evidence required to
survive summary judgment, there is no reason to think
she would have prevailed at trial. Therefore, we are
not overly concerned that our decision today will lead
to different outcomes in federal as opposed to state
court.
15
held
Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570, 576 (6th Cir.
2001).
The
Tennessee
Supreme
Court
recognized
McDonnell Douglas framework would apply at trial.
that
the
Shropshire
strongly suggests that applying it at the summary judgment stage
in federal court would not produce different results.
Id.
Even if Gossett had decided an issue of substantive law the
Tennessee General Assembly explicitly overruled it in a public
act that became effective on June 10, 2011.
21-311.
Tenn. Code Ann. 4-
The General Assembly explicitly affirmed that “[t]he
McDonnell Douglas framework . . . is an appropriate framework
for
the
consideration
discrimination
of
evidence
and retaliation cases
offered
. . .
in
employment
[on] motions for
summary judgment.”
H.B. 1641 § 1(a)(3), 2011 Gen. Assem., 107th
Leg. (Tenn. 2011).
The purpose of the act was to “establish the
McDonnell
Douglas
framework
required
framework
stages”
of
(emphasis
for
employment
added),
and
the
as
the
appropriate
consideration
of
discrimination
to
“expressly
cases,
reject
and
evidence
(id.
and
§
legally
at
all
1(b)(1))
legislatively
overrule the decision of the three-justice majority in Gossett.”
(Id. § 1(b)(2)).
The act provides that:
[T]he plaintiff shall have the burden of establishing
a prima facie case of intentional discrimination or
retaliation.
If the plaintiff satisfies this burden,
the burden shall then be on the defendant to produce
evidence
that
one
(1)
or
more
legitimate,
nondiscriminatory reasons existed for the challenged
employment action . . . .
If the defendant produces
16
such evidence, the presumption of discrimination or
retaliation raised by the plaintiff‟s prima facie case
is rebutted, and the burden shifts to the plaintiff to
demonstrate that the reason given by the defendant . .
. was a pretext for illegal discrimination . . . .
The foregoing allocations of burdens of proof shall
apply at all stages of the proceedings, including
motions for summary judgment.
Tenn. Code. Ann. § 4-21-311(e).
becoming a law.”
Title
4
and
The act “[took] effect upon
An Act to Amend Tennessee Code Annotated,
Title
50,
Relative
to
Claims
for
Employment
Discrimination and Discharge, ch. 461 (Tenn. 2011).
Gossett
does not apply to the THRA claims at issue here, and the Court
will
analyze
those
claims
applied to THRA claims.
using
the
framework
traditionally
See Harris v. Nashville & Davidson
Cnty., 594 F.3d 476, 484-85 (6th Cir 2010); Newsom v. Textron
Aerostructures, 924 S.W.2d 87, 96 (Tenn. Ct. App. 1995).
Because Reed provides no direct evidence of discrimination,
her case is governed by the burden shifting framework developed
in McDonnell Douglas.
411 U.S. at 802-05.
To demonstrate a
prima facie case of discrimination based on race or gender, a
plaintiff must show that:
(1) he or she was a member of a protected class; (2)
he or she suffered an adverse employment action; (3)
he or she was qualified for the position; and (4) he
or she was replaced by someone outside the protected
class or was treated differently than similarlysituated, non-protected employees.
Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006)
(quoting DiCarlo v. Potter, 358 F.3d 408, 415 (4th Cir. 2004))
17
(applying
McDonnell
Douglas
framework
to
racial
and
gender
discrimination claims); see also Alexander v. Ohio State Univ.
Coll. of Social Work, No. 10-3358, 2011 WL 2535277, at *4 (6th
Cir. June 28, 2011); Thompson v. UHHS Richmond Heights Hosp.,
Inc., 372 F. App‟x 620, 623 (6th Cir. 2010).
“If the plaintiff
successfully establishes a prima facie case, the burden then
shifts
to
the
defendant
to
articulate
a
legitimate,
discriminatory reason for the adverse action.”
non-
Reed, 286 F.
App‟x at 255 (citing Tex. Dep‟t of Cmty. Affairs v. Burdine, 450
U.S. 248, 254-56 (1981)); see also Hunter v. Sec‟y of U.S. Army,
565 F.3d 986, 996 (6th Cir. 2009).
to
rebut
the
evidence
by
“The plaintiff may then seek
demonstrating
that
the
reason was a mere pretext for discrimination.”
articulated
Reed, 286 F.
App‟x at 255 (citing Burdine, 450 U.S. at 254-56); see also
Hunter, 565 F.3d at 996.
Reed
is
a
member
of
two
protected
classes.
She
has
satisfied the second element of her prima facie case of racial
and gender discrimination because she has provided sufficient
evidence
for
a
jury
employment action.
treated
differently
to
decide
that
she
suffered
an
adverse
However, Reed has failed to prove she was
than
similarly-situated,
non-protected
employees, and she has failed to rebut Inland‟s evidence that it
had a valid, nondiscriminatory reason to fire her.
1. Adverse Employment Action
18
To prevail on a THRA claim, a plaintiff must show that he
or she was the victim of an adverse employment action.
Mullins
v. U.S. Bank, 296. F. App‟x 521, 520 (6th Cir. 2008).
The
plaintiff must show that there was an injury that would lead to
a “reasonable jury . . . return[ing] return a verdict for the
nonmoving party.”
Anderson, 477 U.S. at 248.
If an employee is
terminated, she has suffered an adverse employment action.
party
resigns,
however,
she
has
not
suffered
an
If a
adverse
employment action and cannot establish her prima facie case.
Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 554 (6th Cir.
2008); see also Hammon v. DHL Airways, Inc., 165 F.3d 441, 447
(6th Cir. 1999).
“Therefore, this Court must determine whether
[the] plaintiff voluntarily resigned before we may address the
plaintiff‟s [discrimination claims].”
Reed
alleges
that
she
was
Id.
terminated
and
provides
two
documents to prove it: her Separation Notice and a copy of her
Tennessee Department of Labor & Workforce Development (“TDOL”)
decision.
Neither of these, however, would permit a reasonable
jury to return a verdict for Reed.
Reed‟s
Separation
Notice
states
speaks of a “voluntary resignation.”
that
she
resigned.
It
(Ex. Separation Notice in
Supp. of Pl.‟s Mem. In Resp. to Mot. For Summ. J., ECF No. 503.)
Reed admits that she did not call to ask why her Separation
Notice said she had voluntarily resigned, or why the box marked
19
“quit” had been checked. (Reed Dep. 201:309.)
to anyone at Inland.
could
not
rely
She did not speak
(Id. at 163:10-22.)
on
a
Separation
Notice
A reasonable jury
that
states
Reed
voluntarily resigned and that she admits she did not contest.
Nor can Reed rely on the TDOL decision. The Sixth Circuit
has held that TDOL reports are inadmissible in discrimination
litigation
because
inexpensive
hearings”
civil trials.
they
are
with
the
products
different
standards
of
of
“quick
and
proof
than
See Pascual v. Anchor Advances Prod., Inc., No.
96-5453, 1997 U.S. App. LEXIS 17732, at *14 (6th Cir. July 10,
1997) (holding that unemployment hearings are not relevant to
discrimination suits); see also Tenn. Code Ann. § 50-7-304(k)
(“no finding of fact or law made with respect to a claim for
unemployment
compensation
.
.
.
may
be
conclusive
.
.
.
regardless of whether the prior action was between the same or
related parties or involved the same facts”); Wright v. Columbia
Sussex Corp., No. 3:06-CV-190, 2008 U.S. Dist. Lexis 28096, at
*6 (E.D. Tenn. April 7, 2008) (denying admission of TDOL report
because “the probative value (minimal, if any) is substantially
outweighed
by
the
danger
of
unfair
prejudice”).
“[A]n
unemployment hearing officer‟s decision . . . should normally
not
be
admitted
[in
an
employment
discrimination
suit].”
Pascual, 1997 U.S. App. LEXIS 17732, at *14 (quoting Bradshaw v.
20
Golden Rd. Motor Inc., 885 F. Supp. 1370, 1375 (D. Nev. 1995)).
Reed‟s TDOL decision is inadmissible.
To survive a motion for summary judgment, the non-moving
party need only show that “a reasonable juror could return a
verdict for the nonmoving party.”
Pucci v. Nineteenth Dist.
Court, 628 F.3d 752, 759 (6th Cir. 2010).
states
that
she
“never
indicated
Defendant that [she] was resigning.”
to
any
Reed‟s affidavit
employee
of
(Reed. Aff. ¶ 28.)
the
Reed
also testified that she was told by Inland she would be fired if
she did not return to work by a certain date.
76:3.)
(Reed Dep. 75:22-
Given that all evidence and reasonable inferences “must
be viewed in the light most favorable to the party opposing the
motion,” a reasonable jury could conclude that Reed suffered an
adverse employment action.
Matsushita, 475 U.S. at 587.
2. Comparison to a Similarly Situated Employee
Reed has failed to show that she was treated differently
than a similarly situated employee who is not a member of her
protected class.
Alexander, 2011 WL 2535277, at *4.
To prove
discriminatory treatment, “the employee with whom the plaintiff
seeks to compare himself must be similar in all of the relevant
aspects
in
order
for
the
two
to
be
similarly
situated.”
Hagedorn v. Veritas Software Corp., 129 F. App‟x 1000, 1003 (6th
Cir. 2005) (quoting Johnson v. Kroger Co., 319 F.3d 858, 867
(6th Cir. 2003)).
21
Reed
alleges
that
she
basis of race and gender.
was
discriminated
against
on
the
However, the only employee to whom
Reed compares herself is Rebecca Foster (“Foster”), “a female
manager who took time off for her pregnancy and childbirth.”
(Resp. 5.)
By comparing herself to another woman, Reed has
failed to show that she was treated differently than “similarly
situated, non-protected employees.”
Gibson v. Shelly Co., 314
F. App‟x 760, 771 (6th Cir. 2008).
Because Foster is a member
of
the
same
protected
class
for
the
purpose
discrimination claim, Reed‟s claim must fail.
of
the
gender
See Alexander,
2011 WL 2535277, at *4 (finding against plaintiff because he
compared himself to a member of his protected class).
Reed has failed to introduce Foster‟s race into the record.
Because nothing in the record demonstrates Foster‟s race, Reed
has failed to establish that Foster was not a member of Reed‟s
protected class and thus has not provided “concrete evidence
supporting [her] claims” of racial discrimination.
Cloverdale
Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.
1989).
Even if the Court could presume that Foster is not a member
of
the
same
discrimination
protected
claim,
class
Reed
for
has
purposes
Foster were similarly situated.
failed
to
of
show
Reed‟s
that
racial
she
and
The plaintiff has the burden of
showing that the similarly situated parties “have dealt with the
22
same supervisor, have been subject to the same standards, and
have engaged in the same conduct.”
Mitchell v. Toledo Hosp.,
964 F.2d 577, 582 (6th Cir. 1992).
“To establish that a non-
protected employee is an appropriate comparator, „the plaintiff
[must] demonstrate that he or she is similarly-situated to the
non-protected employee in all relevant respects.‟”
Dickens v.
Interstate Brands Corp., 384 F. App‟x 465, 468 (6th Cir. 2010)
(quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
353 (6th Cir. 1998)) (emphasis in the original).
that
“the
engaged
in
plaintiff
acts
and
of
the
proposed
„comparable
This means
comparator
seriousness.‟”
[must]
Id.
have
(quoting
Clayton v. Meijer, Inc., 281 F.3d 605, 611 (6th Cir. 2002).
To
determine comparability, courts consider “certain factors, such
as whether the individuals „have dealt with the same supervisor,
have been subject to the same standards and have engaged in the
same
conduct
circumstances
without
that
such
would
differentiating
distinguish
employer‟s treatment of them for it.‟”
their
or
mitigating
conduct
or
the
Id. (quoting Ercegovich,
154 F.3d at 352).
Inland‟s argument that Foster was not a similarly situated
employee because she
taken.
had a different supervisor
(Def.‟s Mem. 11.)
is not well
“Supervisor” is construed broadly,
and the court considers whether parties are comparable in all
relevant aspects.
McMillan v. Castro, 405 F.3d 405, 414 (6th
23
Cir. 2005); see also Seay v. TVA, 339 F.3d 454, 479 (6th Cir.
2003)
(finding
individual
an
in
a
supervisor).
The
employee
was
different
Sixth
similarly
department
Circuit
situated
with
“[has]
never
a
to
an
different
held
that
an
equivalence of supervisors was required to establish liability.”
Gibson, 314 F. App‟x at 771.
The parties need only “be similar
in all of the relevant aspects.”
(emphasis
in
original).
immediate
supervisor
Inland‟s
See
App‟x
at
770
(focusing
two
Reed‟s
comparable because of Inland‟s policy on maternity leave.
F.
the
on
are
314
misplaced;
focus
parties
Gibson,
is
Thus,
Ercegovich, 154 F.3d at 352
on
company‟s
overall
policy for safety violations, and not an individual employee‟s
supervisor).
Reed‟s primary argument is that “Ms. Foster was treated
better, and she in fact still works at Inland.”
(Resp. 5.)
Reed admits that she received at least twelve continuous weeks
of maternity leave, from July 25, 2008 to October 25, 2008.
(Reed‟s Statement of Facts ¶¶ 39, 45.)
Someone engaging in
similar conduct would thus be someone who received or wanted
sixteen weeks of leave.
Reed has failed to show that she and Foster engaged in the
same conduct.
Inland has shown that Foster took off less than
12 weeks for her pregnancy and childbirth. (Jackson Aff. ¶¶ 3839.)
Reed provides no evidence to dispute Inland‟s evidence
24
that Foster took off less time. (Reed‟s Statement of Facts ¶
53.)
Indeed, in her deposition Reed could not identify any
individuals who sought or were granted the amount of leave to
which she claims she was entitled.
(Reed. Dep. 207:11-25.)
She
has failed to show that a member of a non-protected class was
treated differently, because she has failed to show that anyone
engaged in comparable conduct.
Reed has failed to establish her
prima facie case.
3. Legitimate, Non-discriminatory Purpose
Even if Reed had established a prima facie case of race
discrimination or gender discrimination, Inland‟s motion would
be well taken.
It has provided a legitimate, non-discriminatory
explanation for its actions.
“If the plaintiff successfully
establishes a prima facie case, the burden then shifts to the
defendant to articulate a legitimate, non-discriminatory reason
for the adverse action.”
Reed, 286 F. App‟x at 255 (citing
Burdine, 450 U.S. at 254-56); see also Hunter, 565 F.3d at 996.
“The
plaintiff
may
then
seek
to
rebut
the
evidence
by
demonstrating that the articulated reason was a mere pretext for
discrimination.”
Reed, 286 F. App‟x at 255 (citing Burdine, 450
U.S. at 254-56); see also Hunter, 565 F.3d at 996. Reed has
failed to rebut Inland‟s valid, non-discriminatory reason for
terminating her and so Reed‟s case must fail on that ground.
25
Inland was entitled to demand that Reed return to work on
October 22, and it informed her of that fact.
Statement of Facts ¶ 44.)
(See Inland
Reed received more than the twelve
weeks of work mandated by the FMLA.
29 U.S.C. § 2612(a)(1).
This Court has found that, as a matter of law, the TMLA does not
apply to Reed.
When Reed did not return to work after her leave
had expired, Inland had a legitimate, non-discriminatory reason
to terminate her.
Reed has provided no evidence of pretext on the part of
Inland.
To prove pretext, a plaintiff “must produce evidence
that either the proffered reason: (1) has no basis in fact; (2)
did not actually motivate the adverse employment action; or (3)
was insufficient to warrant the adverse action.”
Ladd v. Grand
Trunk W. R.R., Inc., 552 F.3d 495, 502 (6th Cir. 2009).
Reed
does not dispute that she requested sixteen weeks of maternity
leave instead of the twelve she was allotted, and she provides
no evidence that racial or gender discrimination motivated the
adverse employment action.
termination was
Indeed, Reed never argues that her
pretextual.
(See
Resp.)
The Sixth Circuit
requires that a plaintiff prove pretext by either: “(1) a direct
evidentiary
showing
that
a
discriminatory
reason
more
likely
motivated the employer or by (2) an indirect evidentiary showing
that the employer‟s explanation is not credible.”
Brennan v.
Tractor Supply Co., 237 F. App‟x 9, 19 (6th Cir. 2007). By
26
failing to provide such evidence, Reed has failed to show that
there was pretext.
The
Court‟s
conclusion
would
be
the
same
if
entitled to sixteen weeks of leave under the TMLA.
Reed
were
The THRA is
designed to protect against discrimination, not against honest,
if mistaken, termination.
honest
belief
in
the
“[A]s long as an employer has an
proffered
nondiscriminatory
reason,
the
employee cannot establish that the reason was pretextual because
it is ultimately shown to be incorrect.”
Majewski v. Automatic
Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001); see
also Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584,
598-99 (6th Cir. 2007) (“The key inquiry in assessing whether an
employer holds such an honest belief is whether the employer
made
a
reasonably
informed
and
considered
(citations and internal quotation marks omitted).
decision.”)
Reed has not
come forward with any evidence that Inland‟s decision was “so
riddled with error or was so flawed” that Inland could not have
honestly concluded it was entitled to terminate her.
F. App‟x at 490.
Reed, 416
Inland‟s motion for summary judgment on Reed‟s
THRA claim is GRANTED.
C. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Reed also brings suit for negligent infliction of emotional
distress.
(Compl. ¶¶ 31-35.)
Negligent infliction of emotional
distress requires: 1) a duty on the part of the defendant, 2)
27
breach of that duty, 3) injury or loss to the
causation in fact, and 5) proximate cause.
S.W.2d 437, 440 (Tenn. 1996).
plaintiff, 4)
Camper v. Minor, 915
Although the Tennessee Supreme
Court has rejected the “confusing [and] rigid” physical injury
rule, it requires “„serious‟ or „severe‟ emotional injury which
is established by expert or medical proof.”
S.W.2d 618, 622 (Tenn. 1997).
Bain v. Wells, 936
See also Camper, 915 S.W.2d at
447 (requiring “expert medical or scientific proof” for a prima
facie
case).
injury.”
There
must
be
a
“showing
of
severe
emotional
Oates v. Chattanooga Pub. Co., 205 S.W.3d 418, 429
(Tenn. Ct. App. 2006).
Reed claims she suffered a “serious and severe” injury, but
in
her
affidavit
she
states
that
she
has
medical treatment for emotional distress.”
Aff. ¶ 32.)
under
“not
received
any
(Compl. ¶ 34; Reed
Reed fails to meet the prima facie requirements
Tennessee
law
for
negligent
infliction
of
emotional
distress, and Inland is entitled to summary judgment as a matter
of law.
Reed‟s
complaint
is
statute of limitations.
also
barred
by
Tennessee‟s
one-year
Tenn. Code Ann. § 28-3-104.
None of
the events that Reed alleges induced emotional distress occurred
after her last day of employment on July 25, 2008.
Statement of Facts ¶ 13.)
(Inland‟s
That was more than a year before her
claim was filed on August 19, 2009.
28
See Jackson v. CVS Corp.,
No. M2009-02220-COA-R3-CV, 2010 WL 3385184, at *3 (Tenn. Ct.
App. Aug. 26, 2010).
Inland‟s motion for summary judgment on
Reed‟s claim for negligent infliction of emotional distress is
GRANTED.
D. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Reed alleges that Inland acted “with the specific intent to
cause emotional distress or with a reckless disregard of the
probability of causing that distress to plaintiff.”
38.)
To
establish
a
claim
for
intentional
(Compl. ¶
infliction
of
emotional distress, the plaintiff must show: “1) the conduct
complained of must be intentional or reckless; 2) the conduct
must be so outrageous that it is not tolerated by civilized
society; and 3) that the conduct complained of must result in
serious mental injury.”
Bain, 936 S.W.2d at 622.
“[T]he case
is one in which the recitation of the facts to an average member
of the community would arouse his resentment against the actor,
and lead him to exclaim, „Outrageous.‟”
Id. at 622-23.
“The
actionable conduct should be set out in the complaint describing
the substance and severity of the conduct that is alleged to be
outrageous.”
Federated Rural Elec. Ins. Ex. V. Hill, No. M2005-
02461-COA-R3-CV, 2007 WL 907717 (Tenn. Ct. App. March 26, 2007).
“[M]ere
insults,
indignities,
threats,
annoyances,
oppression or other trivialities” do not suffice.
petty
Bain, 936
S.W.2d at 622 (quoting Medlin v. Allied Inv. Co., 398 S.W.2d
29
270, 278 (Tenn. 1966).
because
Reed
has
Inland is entitled to summary judgment
not
proffered
evidence
that
would
allow
a
reasonable jury to find in her favor.
Indicative of the high standard of intentional infliction
of emotional distress is Jones v. Tenn. Valley Auth.
258,
266
(6th
Cir.
1991).
In
Jones,
an
948 F.2d
employee
was
intimidated, assigned to menial tasks, unfairly reprimanded, had
his
communications
monitored,
had
his
medical
records
investigated, and was barred from promotions, but the court did
not find that conduct to be outrageous.
mocking
an
employee
disabilities
was
because
not
of
sufficient
infliction of emotional distress.
The
circumstances
in
Id. at 266.
her
physical
to
Similarly,
and
establish
mental
intentional
Oates, 205 S.W.3d at 420.
this
case
do
not
rise
to
harassment the plaintiffs suffered in Jones or Oates.
the
As one
example of emotional distress, Reed notes that she had to put
letters
into
148:18.)
mail
baskets
on
the
floor.
(Reed
Dep.
147:8-
Reed also mentions a time when Kip Reed told her to
undo the wiring in a computer in a menacing manner, and she
emphasized
discomfort.
however,
that
dealing
with
Kip
Reed
caused
(Reed Aff. ¶ 12; Reed Dep. 147:8-25.)
that
when
she
spoke
to
Human
emotional
Reed admits,
Resources
and
other
employees about Kip Reed, they promised to speak to him and
address the problem.
(Reed Aff. ¶ 12; Reed. Dep. 147:14-18.)
30
Inland did not act “beyond all bounds of decency [so as] to be
regarded
as
atrocious
and
utterly
intolerable.”
Bain,
936
S.W.2d at 623.
Even
because
if
it
expired.
Reed‟s
was
claim
filed
were
after
meritorious,
the
statute
of
would
fail
limitations
had
The statute of limitations for intentional infliction
of emotional distress is one year.
see
it
also
Leach
v.
Taylor,
124
Tenn. Code Ann. § 28-3-104;
S.W.3d
87,
91
(Tenn.
2004)
(“[I]ntentional infliction of emotional distress is a personal
injury
tort,
governed
limitations.”)
examples
of
by
the
general
(citation omitted).
instances
of
one-year
Reed
intentional
statute
provides
infliction
of
of
no
emotional
distress after her last day in Inland‟s office on July 25, 2008.
(Resp. ¶ 39.)
Reed‟s complaint was not filed until August 19,
2009, more than one year after her last day of work.
motion
for
summary
judgment
on
Reed‟s
claim
of
Inland‟s
intentional
infliction of emotional distress is GRANTED.
E. HOSTILE WORK ENVIRONMENT
Reed alleges that Inland created a hostile work environment
under the THRA.
(Compl. ¶ 28.)
Because the THRA is based on,
and is “coextensive[] with”, Title VII, federal courts rely in
part on cases interpreting Title VII.
Gordon v. W.E. Stephens
Mfg. Co., Inc., No. M2007-01126-COA-R3-CV, 2008 WL 4254584, at
*5
(Tenn.
Ct.
App.
Sept.
16,
2008);
31
see
also
Campbell,
919
S.W.2d at 31 (“our analysis of [hostile work environment claims]
is the same under both the Tennessee Human Rights Act and Title
VII of the Federal Civil Rights Act.”).
To
prove
a
hostile
work
environment
claim,
a
plaintiff
“needs to show: (1) she was a member of a protected class; (2)
she was subjected to unwelcomed harassment; (3) the harassment
was based on sex or race; (4) the harassment created a hostile
work environment; and (5) employer liability.”
Ladd, 552 F.3d
at 500 (citation omitted).
“[H]ostile-work-environment
conduct‟
and
workplace
require
is
the
claims
plaintiff
permeated
with
to
„involve[]
demonstrate
discriminatory
repeated
that
„the
intimidation,
ridicule, and insult that is sufficiently severe and pervasive
to alter the conditions of the victim‟s employment and create an
abusive working environment.‟”
Nat‟l
R.R.
(2002)).
Passenger
Corp.
Hunter, 565 F.3d at 994 (quoting
v.
Morgan,
536
U.S.
101,
115-16
“Both an objective and a subjective test must be met:
the conduct must be severe or pervasive enough to create an
environment
that
a
reasonable
person
would
find
hostile
or
abusive and the victim must subjectively regard that environment
as abusive.”
Bowman v. Shawnee State Univ., 220 F.3d 456, 463
(6th Cir. 2000) (citation omitted); see also Thornton v. Fed.
Express
Corp.,
530
F.3d
451,
455
(6th
Cir.
2008).
In
determining whether the conduct is severe or pervasive enough to
32
create
a
hostile
work
environment,
factors
“„include
the
frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance;
and
whether
it
unreasonably
employee‟s work performance.‟”
interferes
with
an
Bourini v. Bridgestone/Firestone
N. Am. Tire, LLC, 136 F. App‟x 747, 751 (6th Cir. 2005) (quoting
Bowman, 220 F.3d at 463).
held
that
incidents
„simple
(unless
discriminatory
employment.‟”
“The Supreme Court has consistently
teasing,
extremely
changes
in
offhand
comments,
serious)
the
will
terms
and
not
isolated
to
conditions
and
amount
of
Id. (quoting Newman v. Fed. Express Corp., 266
F.3d 401, 405 (6th Cir. 2001)).
Reed is a member of two protected classes because she is
African-American and female.
See Gallagher v. C.H. Robinson
Worldwide, Inc., 567 F.3d 263, 270 (6th Cir. 2009).
she
has
failed
incidents
to
adduced
establish
employer
rose
the
to
liability
level
of
a
or
However,
that
hostile
the
work
environment.
As evidence of a hostile work environment, Reed argues that
she was “transferred to the special projects position due to
what
Inland
(Resp. 2.)
Intermodal
referred
to
as
„attendance
issues.‟”
These projects were difficult for Reed due to her
pregnancy, and she testified that she was transferred to another
position.
Id.
Reed also says that Kip Reed, her supervisor,
33
changed her schedule so she would not receive eight hours salary
for working from 7:00 AM to 4:00 PM. (Reed. Dep. 178:25-179:25.)
Reed
testifies
that
employees
made
“comments
about
rednecks,” a fellow employee (“Brandon”) “[came] over to show me
how to do something or critique some of my work or whatever,”
and that Brandon listened to “predominantly black music, R and
B, stuff like that” to mock her.
19.)
(Reed Dep. 144:23-25,146:13-
There was also an instance when Brandon “started caressing
his arm, kind of flexing it” while Reed was in the office with
him.
(Id. 146:21-25.)
anyone at Inland.
Reed did not report these incidents to
(Id. at 147:1-2.)
Drawing all inferences in Reed‟s favor, the record does not
support
harassment
environment.
rising
to
the
level
of
a
hostile
work
Isolated instances are not pervasive enough to
create a hostile work environment.
Long v. Ford Motor Co., No.
05-4152, 2006 U.S. App. Lexis 21893, at *13 (6th Cir. Aug. 24,
2006).
a
jury
In Black v. Zaring Homes, the Sixth
verdict
based
on
a
hostile
work
Circuit overturned
environment
claim
although the plaintiff‟s supervisor, over the course of year,
made
numerous
comments
and:
1)
joked
about
calling
a
new
development Hootersville, Titsville, or Twin Peaks; 2) looked
the plaintiff up and down while eating a pastry and saying he
preferred nothing more in the morning than “sticky buns”; 3)
informed the plaintiff that she was paid “great money for a
34
woman”; and 4) joked about her dancing on tables at a bikers‟
club.
104 F.3d 822, 824 (6th Cir. 1997).
These incidents did
not rise to the level of a hostile work environment because they
were “merely offensive.”
Id. at 826.
“[C]onduct that is deplorable, off-color, or offensive . .
. is not always legally actionable.”
Inc.,
169
F.
App‟x
423,
429
(6th
Kelly v. Senior Ctrs.,
Cir.
2006).
Because
the
purported harassment here “was not a daily or even a weekly
event,” it did not create a hostile work environment.
Id.
Reed has also failed to show that Inland was aware of the
harassment or condoned it.
To justify employer liability, “a
plaintiff
that
must
demonstrate
the
employer
tolerated
or
condoned the alleged conduct or that the employer knew or should
have known and failed to take prompt remedial action.”
Scott v.
G&J Pepsi-Cola Bottlers, Inc., No. 09-5683, 2010 U.S. App. Lexis
16904, at *7 (6th Cir., Aug. 10, 2010).
requirement
that
an
employee
report
Although there is no
discrimination
or
harassment, there must be evidence that the employer knew or
should have known that there was a hostile work environment.
Randolph v. Ohio Dep‟t of Youth Servs., 453 F.3d 725, 735 (6th
Cir.
2006).
A
court
must
find
an
employer
liable
if
the
employee can show that the employer “knew or should have known
of the conduct, and that its response manifested indifference or
unreasonableness.”
Jackson v. Quanex Corp, 191 F.3d 647, 662
35
(6th Cir. 1999).
The burden remains on the plaintiff to show
that the employer knew of the hostile environment and failed to
take prompt remedial action.
Id. at 659.
Given the facts Reed has provided, Inland could not have
known
about
the
incidents.
Brandon
and
Reed
were
the
only
people in the office when Brandon caressed his arm, and she
reported it to no one.
(Reed Dep. at 147:1-2.)
The only other
incident Reed cites is that Brandon listened to R and B to mock
her.
(Id. at 146:2-25.)
Reed introduces no evidence that other
African-Americans or women complained about Brandon‟s actions,
or that Brandon played the music to mock anyone else.
See
Neview v. D.O.C. Optics Corp., 382 F. App‟x 451, 456 (6th Cir.
2010) (finding for the defendant because the plaintiff “failed
to
provide
notice
behavior”).
Inland
would
to
her
employer
of
the
alleged
offensive
There was no reason for Reed to have assumed that
ignore
her
concerns.
Indeed,
she
concedes
that
Inland‟s Human Resources Department responded to her complaints
about Kip Reed‟s making her job more difficult and told Kip Reed
that Reed no longer reported to him.
(Reed Dep. at 147:14-18.)
Reed does not allege that Inland tolerated a discriminatory work
environment.
See
Scott,
2010
U.S.
App.
Lexis
1694
at
*8
(dismissing plaintiff‟s claim because he “presented no evidence
that the [defendant] knew of and tolerated an ongoing hostile
work environment”); Baugham v. Battered Women, Inc., No. 0536
6051, 2006 U.S. App. Lexis 31722, at *22 (6th Cir. Dec. 20,
2006) (finding defendant acted appropriately when it promptly
responded
to
conduct
that
gave
rise
to
a
hostile
work
environment); Randolph, 453 F.3d at 735 (finding employers had
notice of hostile work environment when the plaintiff and other
co-workers had complained on several occasions).
No reasonable
jury could find for Reed on her hostile work environment claim.
Reed‟s hostile work environment claim is also barred by the
statute of limitations.
The THRA requires that an action be
filed within one year of the end of the discriminatory actions.
Tenn. Code Ann. § 4-21-311(d).
July 25, 2008.
Reed‟s last day at Inland was
(Reed‟s Statement of Facts ¶ 39.)
not filed until August 19, 2009.
Her claim was
See Spicer v. Beman Bottling
Co., 937 S.W.2d 884 (Tenn. 1996) (dismissing THRA claim because
the last incident of harassment occurred more than a year before
the claim was filed).
Inland‟s motion for summary judgment on
Reed‟s hostile work environment claim is GRANTED.
V.
CONCLUSION
For
the
foregoing
reasons,
Inland‟s
Motion
for
Summary
Judgment is GRANTED.
So ordered this 29th day of September, 2011.
s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
37
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