Equal Employment Opportunity Commission v. New Breed Logistics

Filing 141

ORDER granting 114 Motion for Partial Summary Judgment. Signed by Judge S. Thomas Anderson on 4/5/2013. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

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Plaintiff,
v.
NEW BREED LOGISTICS,
Defendant.

No. 10-2696-STA-tmp

ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT

Before the Court is Plaintiff Equal Employment Opportunity Commission’s (“EEOC”)
Motion for Partial Summary Judgment (D.E. # 114) filed December 13, 2012. Defendant New
Breed Logistics (“New Breed”) filed a Response (D.E. # 121) on January 14, 2013. For the
reasons set out below, the Court hereby GRANTS EEOC’s Motion for Partial Summary
Judgment.
BACKGROUND
When considering a motion for summary judgment, the reviewing court considers all of
the undisputed facts, drawing all inferences in favor of the non-moving party.1 Therefore, for
purposes of the instant Motion, the Court accepts the following facts as established.2

1

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

2

The Court notes New Breed’s objections to the Declaration of Deputy District Director
Shirley Richardson (“Richardson”) (Decl. Dep. Dir., D.E. # 115-1). New Breed first objects
EEOC did not designate Richardson as a person with knowledge in EEOC’s initial disclosures
pursuant to Rule 26(a)(1)(A). The Court OVERRULES this objection, as Richardson is not
1

EEOC received an Intake Questionnaire from Tiffany Pete (“Pete”) on June 2, 2008,3
alleging sexual harassment and retaliatory discharge in connection to her temporary assignment
through Select Staffing at New Breed’s Memphis, Tennessee facility (the “Avaya facility”).
(Decl Dep. Dir. at 5, D.E. # 115-1.) Pete also described sexual harassment and threats of
retaliatory discharge directed towards “Jackie” and “Capricius [sic].” (Id.) Pete further
identified Capricious Pearson (“Pearson”), Jackie Hines (“Hines”), and Christopher Partee
(“Partee”) as witnesses to sexual harassment. (Id. at 6.)
Pete completed a Charge of Discrimination on June 13, 2008, alleging sexual harassment
by James Calhoun and retaliation for reporting sexual harassment.4 New Breed sent a Notice of
Charge of Discrimination on June 19, 2008. (Id. at 9.) New Breed responded to the Notice of
Charge of Discrimination on September 2, 2008, stating Pete could not make out a prima facie
case of sexual harassment or retaliation. (Id. at 13-17.)

testifying as to her knowledge of events; rather, Richardson serves as a custodian authenticating
business records. Further, the Court notes EEOC’s initial disclosures included the documents
Richardson authenticates here. (Pl.’s Init. Discl. ¶ 2, D.E. # 121-1.) New Breed was not
prejudiced in any way, shape, or form by EEOC’s supposed failure to disclose Richardson as a
person with knowledge. New Breed goes on to object under Fed. R. Evid. 602, 901, and 802.
The Court OVERRULES these objections without comment, except to direct New Breed’s
attention to Fed. R. Evid. 803(8)(iii).
3

The Court notes New Breed disputes that the evidence supports when EEOC received
this document. EEOC’s exhibit bears the stamp “Equal Employment Opportunity Comm.
Received Jun 2, 2008.” New Breed adduced no evidence contradicting this date. Throughout
this Order, the Court will accept dates appearing on the face of a document as providing
evidence of date of completion, date of receipt, or other relevant date and, absent evidence to the
contrary, will accept them as undisputed.
4

New Breed disputes the Charge of Discrimination states Pete’s “assignment ended in
retaliation for reporting the sexual harassment.” The Charge of Discrimination states “I reported
the sexual harassment to the company and thereafter, my assignment ended for no reason. I
believe that I have been . . . retaliated against for the sexual harassment[.]” While the Court is
required to draw all reasonable inferences in favor of the non-moving party, it is patently
unreasonable to infer Pete was not talking about the end of her assignment when discussing
retaliation in the next sentence.
2

EEOC completed its investigation of Pete’s charges, and issued a Letter of Determination
on June 22, 2010. (Id. at 18-19.) In the Letter of Determination, EEOC noted it found
reasonable cause to believe that a New Breed employee sexually harassed Pete and other
employees, and that New Breed retaliated against Pete and other employees for complaining
about this sexual harassment. (Id. at 19.) Further, EEOC stated it found reasonable cause to
believe New Breed terminated a male employee in retaliation for substantiating the claims of
sexual harassment. (Id.)
In a letter dated June 22, 2010, EEOC invited New Breed to conciliation regarding claims
by Pete, Pearson, and Hines of sexual harassment and retaliatory discharge at the Avaya facility.
(Id. at 20-30.) EEOC also invited New Breed to conciliate a claim that New Breed retaliated
against Christopher Partee (“Partee”) for corroborating Pete’s sexual harassment claims. (Id. at
30.) On July 28, 2010, EEOC informed New Breed it would fail conciliation unless it responded
by July 29, 2010. (Id.at 31.) On July 30, 2010, New Breed had not responded to EEOC’s
attempt to conciliate. (Id.) EEOC issued a Notice of Conciliation Failure to New Breed on July
30, 2010. (Id. at 32.)
EEOC initiated the instant suit by filing a Complaint in this Court on September 23,
2010, alleging New Breed employee James Calhoun (“Calhoun”) sexually harassed Hines,
Pearson, and Pete and New Breed discharged Hines, Partee, Pearson, and Pete for opposing
Calhoun’s sexual harassment. (Compl. ¶¶ 8-12, D.E. # 1.) On August 30, 2011, after the
deadline for amending pleadings, EEOC moved this Court to allow amendment of EEOC’s
Complaint, adding a claim that New Breed further retaliated against Hines by discharging her
from a permanent position at their Olive Branch, Mississippi facility (“Olive Branch facility”).
(Mot. Leave File Am. Compl., D.E. # 23.) The United States Magistrate Judge granted EEOC’s

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motion in an order dated November 7, 2011. (Order Granting Leave Am. Compl., D.E. # 60.)
EEOC filed its Amended Complaint on November 7, 2011. (Am. Compl., D.E. # 62.) New
Breed filed an Answer to EEOC’s Amended Complaint on December 5, 2011, asserting various
affirmative defenses to EEOC’s claims. (Ans. Am. Compl., D.E. # 71.)
EEOC, in its Motion for Partial Summary Judgment, argues it is entitled to summary
judgment on several of New Breed’s asserted affirmative defenses because EEOC has met its
statutory prerequisites to bringing suit. EEOC maintains another of New Breed’s affirmative
defenses fails as a matter of law, as punitive damages do not per se violate any constitutional
guarantee. Finally, EEOC contends New Breed’s reservation of rights to add additional
affirmative defenses is inappropriate. New Breed responds that there is at least a question of fact
as to whether EEOC met its statutory prerequisites for each claim before the Court, that their
affirmative defense with respect to the constitutionality of punitive damages merely reserves a
right to judicial review of any award of punitive damages; and that they simply wished to note
other affirmative defense may come up through discovery.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides a party is entitled to summary judgment if
it “shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”5 In reviewing a motion for summary judgment, a court must view
the evidence in the light most favorable to the nonmoving party.6 As a result, the “judge may not
make credibility determinations or weigh the evidence.”7 When the moving party supports the
5

Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Canderm
Pharmacal, Ltd. v. Elder Pharms., Inc., 862 F.2d 597, 601 (6th Cir. 1988).
6

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

7

Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994).
4

motion with documentary proof such as depositions and affidavits, the nonmoving party may not
rest on his pleadings, but must present some “specific facts showing that there is a genuine issue
for trial.”8 It is not sufficient “simply [to] show that there is some metaphysical doubt as to the
material facts.”9 These facts must be more than a scintilla of evidence and must meet the
standard of whether a reasonable juror could find by a preponderance of the evidence that the
nonmoving party is entitled to a verdict.10 When determining if summary judgment is
appropriate, a court should ask “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.”11 A court must enter summary judgment “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.12 In the Sixth Circuit, “this requires the nonmoving
party to ‘put up or shut up’ [on] the critical issues of [its] asserted causes of action.”13
ANALYSIS
EEOC moves the Court for summary judgment on some of New Breed’s affirmative
defenses. Specifically, EEOC moves for summary judgment on New Breed’s Second, Third,
Fourth, Fifth, Sixth, Twentieth, and Twenty-second Affirmative Defenses. As New Breed
discusses in its Response, its Second, Third, Fourth, Fifth, and Sixth Affirmative Defenses go
8

Celotex, 477 U.S. at 324.

9

Matsushita, 475 U.S. at 586.

10

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

11

Id. at 251-52.

12

Celotex, 477 U.S. at 322.

13

Lord v. Saratoga Capital, Inc., 920 F. Supp. 840, 857 (W.D. Tenn. 1995) (citing Street
v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989)).
5

primarily to the issue of administrative exhaustion. The Court will analyze these defenses
together, as they raise substantially the same issues. The Court will then address New Breed’s
Twentieth and Twenty-second Affirmative Defenses in turn.
Administrative Exhaustion
New Breed argues EEOC has not met its burden to show there is no disputed issue of
material fact as to whether it satisfied its conditions precedent to filing a civil action in this Court
with respect to Hines, Pearson, or Partee’s claims. New Breed also argues even if EEOC meets
their burden with respect to Hines, Pearson, and Partee’s claims arising out of their employment
at the Avaya facility (“the Avaya Claims”), it has not met its burden to show there is no disputed
issue of material fact with respect to its charge of retaliatory discharge of Hines at the Olive
Branch facility (“the Olive Branch Claim”).
Pursuant to 42 U.S.C. § 2000e-5, EEOC must receive a charge of discrimination,
investigate the charge of discrimination, and attempt to conciliate the charge of discrimination
before bringing a civil suit in district court.14 The Court holds the undisputed facts reveal EEOC
either satisfied these jurisdictional prerequisites or that these jurisdictional prerequisites did not
apply to the charges before the Court.
EEOC satisfied its requirement to receive a charge of discrimination with respect to the
Avaya Claims when it received Pete’s Charge of Discrimination. Under the “single filing” rule,
42 U.S.C. § 2000e-5 does not require the EEOC to receive a separate charge of discrimination
for each claim it presents in district court so long as it is a “substantially related non-filed claim”
that “arises out of the same time frame as a timely filed claim[.]”15 Therefore, a substantially
14

Bray v. Palm Beach Co., 907 F.2d 150, 1990 WL 92672, at *1 (6th Cir. June 29, 1990);
EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir. 1984).
15

EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 840 (6th Cir. 1994).
6

related claim can “piggyback” on an initial charge without necessitating a new charge. “A
charge will be adequate to support piggybacking under the single filing rule if it contains
sufficient information to notify prospective defendants of their potential liability and permit the
EEOC to attempt informal conciliation of the claims before a lawsuit if filed.”16 A court must
read an administrative complaint “liberally . . . to encompass all claims ‘reasonably expected to
grow out of the charge of discrimination.’”17
The Court finds the Avaya Claims substantially related, as they all involve Calhoun’s
sexual harassment of three co-workers and New Breed’s alleged retaliatory discharge of those
co-workers and a witness. Pete’s Charge of Discrimination alleged Calhoun sexually harassed
her and that New Breed discharged her in retaliation for opposing Calhoun’s actions. EEOC’s
Notice of Determination noted reasonable cause to believe that Calhoun sexually harassed Hines,
Pearson, and Pete and that New Breed terminated Hines, Pearson, Pete, and Partee in retaliation
for protected activity in opposition to this harassment. Reading the Charge of Discrimination
liberally, the Court finds EEOC’s charges of sexual harassment and retaliation against Hines and
Pearson substantially related to those it asserts on behalf of Pete: Hines, Pearson, and Pete all
worked under Calhoun’s supervision; Calhoun made sexually suggestive statements about all
three; and New Breed allegedly terminated all three in retaliation for opposing Calhoun’s
sexually suggestive statements. Partee alleges New Breed terminated him for agreeing to
corroborate Pete’s claims of sexual harassment by Calhoun.
The Court also finds Hines, Partee, and Pearson’s Avaya Claims arise out of the same
time frame as a timely-filed claim. As noted in the Court’s Order Denying Defendant’s Motion
16

Howlett v. Holiday Inns, Inc., 49 F.3d 189, 195 (6th Cir. 1995).

17

Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 732 (6th Cir. 2006) (quoting
Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir. 1992)).
7

for Summary Judgment, Pete’s employment at New Breed began April 1, 2008 and ended May
17, 2008.18 Hines’ employment at the Avaya facility began April 1, 2008 and ended April 29,
2008.19 Pearson’s employment at New Breed began April 8, 2008 and ended May 17, 2008.20
New Breed suspended Partee May 21, 2008 and terminated him on May 27, 2008.21 Even giving
the facts their most generous reading in favor of New Breed, the Court finds any sexual
harassment or retaliation against these claimants at the Avaya facility must have occurred within
a period of sixty days, manifestly the same time period. Since all these claims are substantially
related and arose within the same time frame as each other, the single filing rules excuses the
need for a separate charge of discrimination as to each claim.
New Breed asserts “the EEOC’s conclusory allegations do not conclusively establish . . .
that each of the claims now alleged were investigated and conciliated[,]” and that the facts do
“not establish any fact about the scope of the EEOC’s investigation.” 22 However, it is “error for
[a] district court to inquire into the sufficiency of the Commission’s investigation.”23 “[T]he
nature and extent of an EEOC investigation into a discrimination claim is a matter within the
discretion of that agency.”24 All that is necessary for sufficient investigation is that EEOC
determine there is reasonable cause for a charge: the determination by EEOC provides notice to

18

Order Denying Def.’s Mot. Summ. J. at 9-10, D.E. # 138.

19

Id. at 12.

20

Id. at 5, 8.

21

Id. at 15.

22

Def.’s Resp. Mot. P. Summ. J. at 8.

23

EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984).

24

Id. (emphasis added).
8

the employer of the new charge and provides the basis for conciliation proceedings.25 The Court
must and does defer to EEOC’s judgment as to the sufficiency of its investigation, and finds
EEOC satisfied its requirement to conduct an investigation as to the Avaya Claims.
While New Breed labels EEOC’s allegations of conciliation “conclusory,” there is
evidence in the record showing EEOC attempted to conciliate each claim arising out of the
Avaya facility. In particular, EEOC’s June 22, 2010 letter included attachments referencing
conciliation for these claimants. To make out a genuine dispute, there must be more than “some
metaphysical doubt as to the material facts” and “the nonmoving party must come forward with
specific facts showing that there is a genuine issue for trial.”26 EEOC presents evidence they
attempted conciliation of these charges. New Breed presents no evidence to the contrary. Just as
a district court may not inquire into the sufficiency of an EEOC investigation, it may not inquire
into the sufficiency of EEOC’s conciliation attempts.27 The Court finds there is no genuine
dispute as to whether EEOC took some steps to conciliate these charges, and its inquiry ends
there. Since EEOC satisfied the requirement for filing of an administrative charge, investigation
of the charge, and conciliation with respect to the Avaya Claims, New Breed’s affirmative
defenses related to administrative exhaustion are without merit as applied to these claims.
New Breed further argues there is a question of fact whether EEOC has fulfilled its
statutory prerequisites with respect to the Olive Branch Claim. Again, the Court disagrees. As
noted above, Hines’ sexual harassment and retaliation claims at the Avaya facility were part and
parcel with Pete’s initial Charge of Discrimination under the single filing rule. In the Sixth
25

Id.

26

Matsushida Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)
(internal quotation omitted).
27

Keco Indus., 748 F.2d at 1102.
9

Circuit, the EEOC’s must limit its judicial complaint “to the scope of the EEOC investigation
reasonably expected to grow out of the charge of discrimination.”28 However, “where facts
related with respect to the charged claim would prompt the EEOC to investigate a different,
uncharged claim, the plaintiff is not precluded from bringing suit on that claim.”29 “[R]etaliation
naturally grows out of any underlying substantive discrimination charge[.]”30 EEOC is not
required to exhaust administrative remedies prior to adding a retaliation charge that grows out of
and arises after an earlier administrative charge properly before the court.31
The EEOC alleges New Breed terminated Hines at the Olive Branch facility in
continuing retaliation for her opposition to Calhoun’s harassment at the Avaya facility.32 Thus,
the Olive Branch Claim naturally grew out of the underlying charge of sexual harassment and
retaliation pertaining to Hines at the Avaya facility. EEOC received Pete’s initial charge of
discrimination on June 17, 2008. New Breed suspended Hines at the Olive Branch facility on
June 20, 2008.33 As a result, EEOC did not need to exhaust administrative remedies with respect
to the Olive Branch Claim. Any defense asserting EEOC did not exhaust its administrative
remedies with respect to the Olive Branch Claim is therefore meritless.

28

EEOC v. Bailey Co., 563 F.2d 439, 446 (6th Cir. 1977).

29

Davis v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998).

30

Baker v. Sam’s East, Inc., No. 3-11-1001, 2012 WL 589526, at *2 (M.D. Tenn. Feb.
22, 2012) (citing Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 380 (6th Cir. 2002)).
31

Id. (citing Nichols v. Gen. Motors Co., 978 F.Supp. 743, 746-47 (S.D. Ohio 1997)).
See also Keco Indus., 748 F.2d at 1101-02 (conciliation excused for charge reasonably expected
to grow out of the initial charge of discrimination when conciliation of initial charge failed).
32

Am. Compl. ¶ 11, D.E. # 62

33

See Order Denying Def.’s Mot. Summ. J. at 13.
10

New Breed predicates its Second, Third, Fourth, Fifth, and Sixth Affirmative Defenses on
arguments EEOC in one way or another failed to exhaust administrative remedies. EEOC has
satisfied its statutory prerequisites to suit with respect to all claims currently before the Court.
The Court therefore finds New Breed’s Second, Third, Fourth, Fifth, and Sixth Affirmative
Defenses without merit and GRANTS EEOC’s Motion for Partial Summary Judgment with
respect to these affirmative defenses.
Punitive Damages
New Breed asserts in its Twentieth Affirmative Defense that, to the extent which EEOC
seeks exemplary or punitive damages, such an award would violate New Breed’s rights to
procedural due process under both the United States and Tennessee Constitutions, would violate
New Breed’s right to be free from excessive fines under both the United States and Tennessee
Constitutions, and would violate New Breed’s right to substantive due process under the both the
United States and Tennessee Constitutions. The Court finds this argument unsupported and is
aware of no case law prohibiting an award of punitive damages under such theories. New Breed,
in its Response, argues they merely meant to reserve the right to have the Court review any
award of punitive damages in accord with the principles announced in BMW of North America,
Inc. v. Gore,34 State Farm Mutual Auto Insurance Co. v. Campbell,35 and Cooper Industries, Inc.
v. Leatherman Tool Group, Inc.36 However, it is unnecessary for New Breed to make such a
reservation of rights; should there be an award of punitive damages in this case, the Court will
entertain such motions as are appropriate at that time. Therefore, the Court GRANTS EEOC’s

34

BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996).

35

State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003).

36

Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001).
11

Motion for Partial Summary Judgment with respect to New Breed’s Twentieth Affirmative
Defense.
Further Defenses
New Breed, in its Twenty-second Affirmative Defense, purports to reserve the right to
assert further affirmative defenses as become apparent in discovery. Such a reservation of rights
is unnecessary and a nullity. Should affirmative defenses become apparent through discovery,
the proper way to assert them is through amendment of the answer, either by consent of the
parties or with leave of the Court.37 Therefore, the Court GRANTS EEOC’s Motion for Partial
Summary Judgment with respect to New Breed’s Twenty-second Affirmative Defense.
CONCLUSION
Because EEOC’s claims relating to Hines, Partee, and Pearson at the Avaya facility are
substantially related and arose out of the same time period as EEOC’s claims relating to Pete;
and because EEOC’s claims relating to Hines’ termination at the Olive Branch facility
reasonably grew out of EEOC’s claims relating to Hines at the Avaya facility, the Court
GRANTS EEOC’s Motion for Partial Summary Judgment with respect to New Breed’s Second,
Third, Fourth, Fifth, and Sixth Affirmative Defenses. Because there has been no punitive
damages award in this case and because an argument that punitive damages are excessive in a
particular case is not an affirmative defense, the Court GRANTS EEOC’s Motion for Partial
Summary Judgment with respect to New Breed’s Twentieth Affirmative Defense. Because the
proper method to raise a new affirmative defense is through amendment rather than by
reservation, the Court GRANTS EEOC’s Motion for Partial Summary Judgment with respect to
New Breed’s Twenty-second Affirmative defense.
37

See Fed. R. Civ. P. 15(a)(2).
12

IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: April 5, 2013.

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