Goodman, Sr. v. Valero Refining Company - Tennessee, L.L.C.
Filing
69
Order GRANTING 41 Motion for Summary Judgment. Signed by Judge Jon Phipps McCalla on 1/17/2023. (wrb)
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
MELVIN GOODMAN, SR.,
Plaintiff,
v.
VALERO REFINING COMPANY –
TENNESSEE, LLC.,
Defendant.
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Case No. 2:20-cv-02779-JPM-cgc
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Valero Refining Company Tennessee, LLC’s (“Valero”)
Motion for Summary Judgment and accompanying Memorandum of Law in Support, both filed
on July 29, 2022. (ECF Nos. 41, 42.) Defendant moves for summary judgment in its favor
with respect to Plaintiff Melvin Goodman, Sr.’s claims under the Americans with Disabilities
Act Amendments Act (“ADA”), the Tennessee Human Rights Act (“THRA”), and Tennessee
common law tort. (See generally ECF No. 42.) Plaintiff filed a Response on September 6,
2022. (ECF No. 50.) Defendant filed a Reply on September 20, 2022. (ECF No. 55.)
For the reasons set forth below, Defendant’s Motion for Summary Judgment is
GRANTED.
I.
BACKGROUND
A.
Undisputed Facts
This is an employment discrimination case related to the alleged harassment, as well as
the ultimate discharge, of Plaintiff Melvin Goodman Sr., a longtime employee of Valero.
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Defendant operates a refinery in Memphis, Tennessee. (ECF No. 43 ¶ 1; ECF No. 501 ¶ 1.) The refinery contains a laboratory. (ECF No. 43 ¶ 2; ECF No. 50-1 ¶ 2.) Plaintiff
worked in this laboratory as a “Shift Tester,” a job position whose responsibilities include
“performing Quality Control testing on various samples (both water and hydrocarbon) for
product certification, regulation compliance, and process unit monitoring.” (ECF No. 43 ¶¶ 3,
8; ECF No. 50-1 ¶¶ 3, 8.) He was supervised by a Lab Supervisor, who reported directly to a
Lab Manager. (ECF No. 43 ¶ 2; ECF No. 50-1 ¶ 2.) His employment with Defendant continued
from approximately September 1, 2005 until November 22, 2019. (ECF No. 43 ¶¶ 7–8; ECF
No. 50-1 ¶¶ 7–8.) He began work in the position of Shift Tester on June 6, 2016. (ECF No. 43
¶ 8; ECF No. 50-1 ¶ 8.) Defendant was represented by a union in this position. (ECF No. 43 ¶
10; ECF No. 50-1 ¶ 10.)
Plaintiff was issued a Verbal Warning, Defendant’s first level of discipline, for “failing
to complete the required computer based training (“CBT”), failing [to] review and certify time
cards for payroll processing purposes, and failing to respond to emails from management” on
December 12, 2016. (ECF No. 43 ¶ 15; ECF No. 50-1 ¶ 15.) Plaintiff was issued a Written
Reminder, Defendant’s second level of discipline, for “failing to properly screen/interpret lab
analysis before issuing certification” on January 26, 2017. (ECF No. 43 ¶ 16; ECF No. 50-1 ¶
16.) Plaintiff was warned that this failure to meet performance expectations could result in
damage to Defendant’s business and could also lead to his discharge. (ECF No. 43 ¶ 16; ECF
No. 50-1 ¶ 16.) Plaintiff was issued a second Written Reminder for repeated failures to don
Personal Protective Equipment on April 20, 2018. (ECF No. 43 ¶ 19; ECF No. 50-1 ¶ 19.)
During the first four months of 2018, Plaintiff was “coached” 16 times on his failures to meet
Defendant’s performance expectations. (ECF No. 43 ¶ 19; ECF No. 50-1 ¶ 19.)
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Plaintiff was on medical leave from his employment with Defendant from July 7, 2018
until January 7, 2019. (ECF No. 50-1 at PageID 411; ECF No. 55 at PageID 472.) This leave
was related to eye surgery, and Plaintiff used a “large magnifying glass” at his workstation upon
his return. (ECF No. 50-1 at PageID 411; ECF No. 55 at PageID 472.) Lab Manager Randell
Beasley (“Beasley”) testified that he was “surprised” Plaintiff was using this low vision aid, but
also stated that he was “unconcerned” that Plaintiff was using it. (ECF No. 50-1 ¶ 33; ECF No.
55 at PageID 473.)
Plaintiff complained to Defendant, making allegations that “other employees were
making false accusations against him, [and that he was subjected to] workplace bullying[] and
age discrimination” on January 21, 2019. (ECF No. 43 ¶ 20; ECF No. 50-1 ¶ 20.) Defendant
investigated these allegations along with Plaintiff’s union and could not substantiate them.
(ECF No. 43 ¶¶ 21–22; ECF No. 50-1 ¶¶ 21–22.)
Plaintiff was placed in a training program to improve his work performance, which was
approved by his union, on April 15, 2019. (ECF No. 43 ¶¶ 23–26; ECF No. 50-1 ¶¶ 23–26.)
Following Defendant’s stint in a training program, he continued to fail to meet his performance
expectations. (ECF No. 43 ¶¶ 28–29; ECF No. 50-1 ¶ 28–29.) Plaintiff was issued a Final
Written Warning with Decision Making Leave, Defendant’s most serious level of discipline
short of termination, on September 5, 2019. (ECF No. 43 ¶ 29; ECF No. 50-1 ¶ 29.) He was
issued this discipline for failure to “enter test data into the computer; test samples early during
the shift to allow for re-analysis of the samples, if necessary; respond to emails from
supervision; complete work assignments; perform duties in a timely manner; re-analyze Quality
Control [] data when they fail; and review data before submission.” (ECF No. 43 ¶ 29; ECF
No. 50-1 ¶ 29.) At that time, Plaintiff submitted a letter to Defendant in which he “admitted his
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consistent performance issues.” (ECF No. 43 ¶ 31; ECF No. 50-1 ¶ 31.) Plaintiff subsequently
had “no less than 12 performance problems in the same areas” in which he had previously failed
to meet Defendant’s expectations. (ECF No. 43 ¶ 34; ECF No. 50-1 ¶ 34.)
Plaintiff’s counsel submitted a letter of complaint to Defendant on September 6, 2019,
making allegations of harassment, age discrimination, and disability discrimination. (ECF No.
43 ¶ 34; ECF No. 50-1 ¶ 34.) In the months after he was issued a Final Written Warning and
he submitted the letter of complaint, Plaintiff worked a heavier schedule than usual. (ECF No.
43 ¶ 33; ECF No. 50-1 ¶ 33.)
Plaintiff’s employment with Defendant was terminated on November 22, 2019. (ECF
No. 43 ¶ 35; ECF No. 50-1 ¶ 35.) The decisionmakers regarding this employment decision
were the Refinery VP & General Manager and the Technical Director. (ECF No. 43 ¶ 36; ECF
No. 50-1 ¶ 36.) They did not make any comments to Plaintiff regarding his age or perceived
disability. (ECF No. 43 ¶ 37; ECF No. 50-1 ¶ 37.) Plaintiff was not told that he was being
terminated because of his complaints, and these individuals did not direct “any negative or
derogatory comments” toward him regarding his complaints. (ECF No. 43 ¶ 39; ECF No. 501 ¶ 39.)
B.
Procedural Background
Plaintiff “filed a charge of discrimination with the Equal Employment Opportunity
Commission [] within three hundred days of the discrimination” and received a Right to Sue
Notice within 90 days of filing the instant case. (ECF No. 3 ¶¶ 22–23.) On October 28, 2020,
Plaintiff filed a Complaint against Defendant. (ECF No. 1.) On that same day, Plaintiff filed
an Amended Complaint. (ECF No. 3.) Defendant filed an Answer on December 30, 2020.
(ECF No. 9.)
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On July 29, 2022, Defendant filed the instant Motion for Summary Judgment. (ECF
No. 41.) This was accompanied by a Memorandum in Support (ECF No. 42) and a Statement
of Undisputed Material Facts. (ECF No. 43.) Attached were the relevant deposition excerpts
and exhibits of Plaintiff (ECF No. 43-1), the Declaration of Mike Sumter, the Human Resource
Manager at Defendant’s Memphis refinery as of 2019 (ECF No. 43-2), relevant deposition
excerpts from Lab Supervisor Beasley (ECF No. 43-3), the relevant deposition excerpts and
exhibits of Kenneth Jackson (“Jackson”), who was a Lab Supervisor at Defendant’s Memphis
refinery as of 2019 (ECF No. 43-4), a bank of coaching notes issued to Shift Testers, including
Plaintiff (ECF No. 43-5), Defendant’s Amended Answer to Plaintiff’s Interrogatory No. 4 (ECF
No. 43-6), and excerpts from Defendant’s Employee Guide. (ECF No. 43-7.)
Plaintiff filed a Motion for Extension of Time to File Answer on August 25, 2022. (ECF
No. 46.) That Motion was granted on the same day. (ECF No. 47.) Defendant filed a Motion
for Reconsideration of Plaintiff’s Extension of Time on August 29, 2022. (ECF No. 48.)
Plaintiff filed a response to that Motion on the same day. (ECF No. 49.) Defendant’s Motion
for Reconsideration was denied on September 6, 2022. (ECF No. 53.)
Plaintiff filed a Response to Defendant’s Motion for Summary Judgment of September
6, 2022. (ECF No. 50.) This was accompanied by Plaintiff’s Response to Defendant’s
Statement of Undisputed Material Facts. (ECF No. 50-1.) Also attached was an exhibit
containing Plaintiff’s timesheets between September 1, 2019 and November 22, 2019 (ECF No.
51-1), and an exhibit containing a grievance Plaintiff filed with his union on December 10,
2019, regarding the termination of his employment, along with relevant communications. (ECF
No. 51-2.)
Defendant filed a Response in Support of its instant Motion on September 20, 2022. (ECF
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No. 54.) Defendant also filed a Reply to Defendant’s Response on that same day. (ECF No.
55.) That document was accompanied by the Declaration of James Griggs, an HR professional
at Defendant’s Memphis refinery (ECF No. 55-1) and an excerpt from the Collective Bargaining
Agreement between Defendant and Plaintiff’s union. (ECF No. 55-2.)
II.
LEGAL STANDARD
A party is entitled to 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). “A fact is ‘material’ for purposes of summary judgment if proof of that fact
would establish or refute an essential element of the cause of action or defense.” Bruederle v.
Louisville Metro Gov’t, 687 F.3d 771, 776 (6th Cir. 2012).
“In considering a motion for summary judgment, [the] court construes all reasonable
inferences in favor of the non-moving party.” Robertson v. Lucas, 753 F.3d 606, 614 (6th Cir.
2014) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“The moving party bears the initial burden of demonstrating the absence of any genuine issue
of material fact.” Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th Cir. 2012) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “Once the moving party satisfies its initial burden,
the burden shifts to the nonmoving party to set forth specific facts showing a triable issue of
material fact.” Mosholder, 679 F.3d at 448–49; see also Fed. R. Civ. P. 56(e); Matsushita, 475
U.S. at 587. “When the non-moving party fails to make a sufficient showing of an essential
element of his case on which he bears the burden of proof, the moving parties are entitled to
judgment as a matter of law and summary judgment is proper.” Martinez v. Cracker Barrel Old
Country Store, Inc., 703 F.3d 911, 914 (6th Cir. 2013) (quoting Chapman v. UAW Local 1005,
670 F.3d 677, 680 (6th Cir. 2012) (en banc)) (internal quotation marks omitted).
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In order to “show that a fact is, or is not, genuinely disputed,” a party must do so by
“citing to particular parts of materials in the record,” “showing that the materials cited do not
establish the absence or presence of a genuine dispute,” or showing “that an adverse party
cannot produce admissible evidence to support the fact.” L.R. 56.1(b)(3); Bruederle, 687 F.3d
at 776 (alterations in original) (quoting Fed. R. Civ. P. 56(c)(1)); see also Mosholder, 679 F.3d
at 448 (“To support its motion, the moving party may show ‘that there is an absence of evidence
to support the nonmoving party’s case.’” (quoting Celotex, 477 U.S. at 325)). “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge[.]” Martinez, 703 F.3d at 914 (alteration in original)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “The court need consider
only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P.
56(c)(3). “[T]he district court has no ‘duty to search the entire record to establish that it is bereft
of a genuine issue of material fact.’” Pharos Capital Partners, L.P. v. Deloitte & Touche, 535
F. App’x 522, 523 (6th Cir. 2013) (per curiam) (quoting Tucker v. Tennessee, 539 F.3d 526,
531 (6th Cir. 2008), abrogation recognized by Anderson v. City of Blue Ash, 798 F.3d 338 (6th
Cir. 2015)).
The decisive “question is whether ‘the evidence presents a sufficient disagreement to
require submission to a [fact finder] or whether it is so one-sided that one party must prevail as
a matter of law.’” Johnson v. Memphis Light Gas & Water Div., 777 F.3d 838, 843 (6th Cir.
2015) (quoting Liberty Lobby, 477 U.S. at 251–52). Summary judgment “‘shall be entered’
against the non-moving party unless affidavits or other evidence ‘set forth specific facts
showing that there is a genuine issue for trial.’” Rachells v. Cingular Wireless Employee Servs.,
LLC, No. 1:08CV02815, 2012 WL 3648835, at *2 (N.D. Ohio Aug. 23, 2012) (quoting Lujan
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v. Nat’l Wildlife Fed’n, 497 U.S. 871, 884 (1990)). “[A] mere ‘scintilla’ of evidence in support
of the non-moving party’s position is insufficient to defeat summary judgment; rather, the nonmoving party must present evidence upon which a reasonable jury could find in her favor.”
Tingle v. Arbors at Hilliard, 692 F.3d 523, 529 (6th Cir. 2012) (quoting Liberty Lobby, 477
U.S. at 251). “[I]n order to withstand a motion for summary judgment, the party opposing the
motion must present ‘affirmative evidence’ to support his/her position.” Mitchell v. Toledo
Hosp., 964 F.2d 577, 584 (6th Cir. 1992) (citing Liberty Lobby, 477 U.S. at 247–254; Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)).
“[C]onclusory assertions,
unsupported by specific facts made in affidavits opposing a motion for summary judgment, are
not sufficient to defeat a motion for summary judgment.” Rachells, 2012 WL 3648835, at *2
(quoting Thomas v. Christ Hosp. & Med. Ctr., 328 F.3d 890, 894 (7th Cir. 2003)). Statements
contained in an affidavit that are “nothing more than rumors, conclusory allegations and
subjective beliefs” are insufficient. Mitchell, 964 F.2d at 584–85.
III.
ANALYSIS
A. Employment Termination Claims
1. Under the Americans with Disabilities Act Amendments Act (“ADA”)
Defendant is entitled to summary judgment on Plaintiff’s disability discrimination
claim. Plaintiff alleges in his Complaint that he was “regarded as a person having a disability.”
(ECF No. 4 ¶ 1.) He was allegedly subjected to discriminatory treatment because he took
“medical leave . . . for eye surgery.” (ECF No. 55 at PageID 472.) After his approximately
five and a half month medical leave, Plaintiff returned to work and required a “large magnifying
glass” at his workstation. (Id.) Plaintiff “avers that the real reason for his termination was
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discrimination against him because he was regarded as a person having a disability” in the form
of a visual impairment. (ECF No. 4 ¶ 19.)
There is no direct evidence that any of Defendant’s employees displayed discriminatory
animus against Plaintiff on the basis of perceived disability. There is no allegation that
comments were made to Plaintiff regarding his eyesight. (ECF No. 43-1 at PageID 196; ECF
No. 43-3 at PageID 253; ECF No. 43-4 at PageID 264.) Lab Supervisor Beasley stated that he
was unconcerned with Plaintiff’s use of a magnifying glass. (ECF No. 43-3 at PageID 254.)
Lab Manager Jackson stated that he was aware of the magnifying glass, but never expressed
concern. (ECF No. 43-4 at PageID 263–64.) Defendant’s employees who made the decision
to terminate Plaintiff’s employment also made no comments to suggest that the decision was
based on his perceived disability. (ECF No. 50-1 ¶¶ 36–37.)
Because there is no direct evidence of discrimination, Plaintiff’s claim is subject to the
burden-shifting framework set out in McDonnell Douglas. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973); see also Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 453
(6th Cir. 2004) (applying the McDonnell Douglas burden-shifting framework in the context of
an ADA case). Under this framework, “[t]he burden is first on the plaintiff to demonstrate a
prima facie case of [disability] discrimination; it then shifts to the employer to offer a legitimate,
non-discriminatory explanation for its actions; finally, the burden shifts back to the plaintiff to
show pretext-i.e. that the employer's explanation was fabricated to conceal an illegal motive”.
Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009) (citing McDonnell Douglas, 411
U.S. at 802–04). “The ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas
Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To establish a prima facie case
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of disability discrimination, a plaintiff must demonstrate that (1) he “has a disability,” (2) he is
“otherwise qualified for the position, with or without reasonable accommodation,” (3) he
“suffered an adverse employment decision,” (4) his employer “knew or had reason to know” of
his disability, and (5) he “was replaced or [his] position remained open.” Williams v. AT&T
Mobility Servs. LLC, 847 F.3d 384, 395 (6th Cir. 2017) (quoting Whitfield v. Tennessee, 639
F.3d 253, 259 (6th Cir. 2011)).
Plaintiff fails to establish a prima facie case on the first prong of this test. He cannot
show that he was an individual with a disability within the meaning of the ADA. Relevantly,
an individual is disabled within the meaning of the ADA if he “is regarded by his employer as
having . . . an impairment” that substantially limits one or more of his major life activities. 42
U.S.C. § 12102(1). “An employee is regarded as disabled under the ADA if his employer (1)
mistakenly believes that he has a physical impairment that substantially limits one or more
major life activities, or (2) mistakenly believes that an actual, nonlimiting impairment
substantially limits one or more major life activities.” Simpson v. Vanderbilt Univ., 359 F.
App'x 562, 567 (6th Cir. 2009) (citing Mahon v. Crowell, 295 F.3d 585, 593 (6th Cir. 2002))
(quotation marks omitted). This is “a question embedded almost entirely in the employer's
subjective state of mind.” Ross v. Campbell Soup Co., 237 F.3d 701, 709 (6th Cir. 2001).
Plaintiff argues that Defendant regarded him as disabled because he took five and a half
months of medical leave for eye surgery and required a magnifying glass when he returned to
work. (ECF No. 55 at PageID 472.) He establishes that his direct supervisors were aware of
his use of this low vision aid. (ECF No. 43-3 at 254; ECF No. 43-4 at PageID 263–64.)
However, mere awareness of Plaintiff’s physical condition is insufficient to establish that
Defendant regarded him as disabled. See Milholland v. Sumner Cnty. Bd. of Educ., 569 F.3d
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562, 568 (6th Cir. 2009) (“That the defendants were aware of [an employee’s] health issues
does not support a conclusion that they misperceived her physical abilities as impaired and
affecting her performance.”). The record shows that Lab Manager Beasley was “surprised” that
Defendant was using a low visual aid, but Beasley also states that he supported Plaintiff’s use
of a visual aid if it helped him complete his work. (ECF No. 43-3 at 254.) Plaintiff received
numerous reprimands and warnings for poor work performance, but there is no evidence on the
record that links these reprimands and warnings to his low vision or his use of a magnifying
glass. In fact, these reprimands and warnings came both before and after his eye surgery. (See,
e.g., ECF No. 50-1 ¶¶ 16–19, 29.) This is far from evidence that Defendant believed that
Plaintiff was disabled, or that Defendant perceived his vision as impacting his life activities.
Construing the evidence in the light most favorable to Plaintiff, his disability claim must
fail as he cannot set forth specific facts that would satisfy the first prong of his prima facie case
and establish that he has a disability within the meaning of the ADA.
2. Under the Tennessee Human Rights Act (“THRA”)
Defendant is entitled to summary judgment on Plaintiff’s age discrimination claim.
Plaintiff was 70 years old in 2019, when Defendant terminated his employment. (ECF No. 4 ¶
4; ECF No. 9 at PageID 25.) Plaintiff alleges that the “true reason” for his termination was his
age. (Id. ¶ 18.)
The THRA states, in relevant part, that “[i]t is a discriminatory practice for an employer
to . . . discharge any person . . . because of such individual's . . . age.” Tenn. Code Ann. § 4–
21–401(a). An individual must be at least forty years old to establish an unlawful discrimination
claim based on age. Tenn. Code Ann. § 4–21–101(b).
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To prevail on an age discrimination claim under the THRA, a defendant must show by
direct or indirect evidence that his age was a “determining factor” in his termination. Wallace
v. City of Lewisburg, No. M201901690COAR3CV, 2020 WL 6390139, at *9 (Tenn. Ct. App.
Oct. 30, 2020) (applying the determining factor standard); see also Wallace, 2020 WL 6390139
at *9 n. 6 (noting, in the context of a plaintiff citing cases under federal age discrimination law
to support a THRA claim, that the but-for standard has not been adopted by Tennessee courts).
There is no direct evidence that any of Defendant’s employees displayed discriminatory
animus against Plaintiff on the basis of age. Defendant’s employees who made the decision to
terminate Plaintiff’s employment made no comments to suggest that the decision was based on
his perceived age. (ECF No. 50-1 ¶ 37.) Plaintiff’s supervisors also made no comments
regarding Plaintiff’s age. (ECF No. 43-1 at PageID 198.)
Because there is no direct evidence of discrimination, Plaintiff’s claim is subject to the
burden-shifting framework set out in McDonnell Douglas, as articulated above. See McDonnell
Douglas, 411 U.S. 792; see also Yount v. FedEx Express, 2016 WL 1056958, at *5 (Tenn. Ct.
App. Mar. 17, 2016) (noting that Tennessee courts have adopted the McDonnell Douglas
burden-shifting framework in applying the THRA). A plaintiff must demonstrate “(1) that he
or she is a member of the protected class of persons forty years of age or older, (2) that his or
her work performance satisfied the employer's reasonable expectations, (3) that he or she was
actually or constructively terminated, and (4) that the termination occurred under circumstances
giving rise to an inference of discrimination based on age” in order to make out a prima facie
age discrimination claim under the THRA. Wilson v. Rubin, 104 S.W.3d 39, 52 (Tenn. Ct.
App. 2002) (citing Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002).
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Plaintiff fails to establish a prima facie case of age discrimination on the second prong
of this test. It is undisputed that Plaintiff was issued a “Verbal Warning,” a first level of
discipline, for a number of failures to perform his job adequately on December 12, 2016. (ECF
No. 50-1 ¶ 15.) Plaintiff received a “Written Reminder,” the second level of discipline, for
additional failures to perform his job adequately on January 26, 2017. (Id. ¶ 16.) Plaintiff was
issued a second “Written Reminder” for multiple failures to wear appropriate PPE on April 20,
2018. (Id. ¶¶ 17–19.) He was also “coached” 16 times during the first four months of 2018.
(Id. ¶ 20.) Plaintiff was then put in a personalized training program on April 15, 2019.
(Id. ¶ 26.) Plaintiff’s “performance issues continued” and he was then issued a “Final Written
Warning with Decision Making Leave” on September 5, 2019. (Id. ¶¶ 29–30.) At that time he
was warned that continued performance issues would result in his termination. (Id.; see also
ECF No. 43-5.) On September 9, 2019 Plaintiff submitted a letter to Defendant in which he
“admitted his consistent performance issues.” (Id. ¶ 31.) Plaintiff then had 12 performance
problems in the months between his final warning and his termination on November 22, 2019.
(Id. ¶¶ 34–35.) While it is true that other Shift Testers were also reprimanded for failures on
the job, the record shows that Plaintiff was responsible for the vast majority of coaching notes
issued to Shift Testers by Defendant between 2016 and 2019. (ECF No. 43-5 at PageID 344–
58) (indicating that Defendant received 69 coaching notes between April 14, 2016 and March
4, 2019). Plaintiff has produced no evidence that his job performance should, in fact, have been
considered satisfactory by his employer.
Construing the evidence in the light most favorable to Plaintiff, his age discrimination
claim must fail as he cannot set forth specific facts that would satisfy the second prong of his
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prima facie case and establish that his work performance satisfied his employer’s reasonable
expectations.
B. Other Claims
1. Retaliation
Defendant is entitled to summary judgment on Plaintiff’s retaliation claims. Plaintiff
claims that he was retaliated against in the scheduling of his work shifts and in his ultimate
termination for protesting Valero’s alleged discriminatory treatment. (ECF No. 4 ¶¶ 16, 20.)
This claim of retaliation is brought pursuant to the ADA. (Id. ¶ 27.)
The ADA provides that “[n]o person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).
There is no direct evidence that any of Defendant’s employees displayed discriminatory
animus against Plaintiff in scheduling him or terminating his employment.
Plaintiff’s
supervisors made no comments suggesting that his protests against his allegedly discriminatory
treatment affected his work schedule. (ECF No. 50-1 ¶ 39.) Defendant’s employees who made
the decision to terminate Plaintiff also made no comments suggesting that the decision was
based on these protests. (Id.)
Because there is no direct evidence of discriminatory retaliation, Plaintiff’s claim is
subject to the burden-shifting framework set out in McDonnell-Douglas, as articulated above.
See McDonnell Douglas, 411 U.S. 792; see also Rorrer v. City of Stow, 743 F.3d 1025, 1046
(6th Cir. 2014) (“Because [the plaintiff] does not claim to have direct evidence of retaliation,
this Court analyzes his claim for ADA retaliation using the McDonnell–Douglas burden-
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shifting approach.”). “The plaintiff bears the initial burden to establish a prima facie case of
retaliation, which requires a showing that (1) the plaintiff engaged in activity protected under
the ADA; (2) the employer knew of that activity; (3) the employer took an adverse action against
plaintiff; and (4) there was a causal connection between the protected activity and the adverse
action.” Rorrer, 743 F.3d at 1046.
Plaintiff fails to establish a prima facie case of retaliation on the fourth prong of this
test. Plaintiff claims that he was scheduled for “grueling” shifts at his workplace after his lawyer
sent a letter to Defendant alleging that Plaintiff was being discriminated against on September
6, 2019. (ECF No. 4 ¶ 15.) It is undisputed that Plaintiff worked “more shifts than normal”
between approximately September 14, 2019, and November 18, 2019. (ECF No. 50-1 ¶ 33.)
Defendant puts forward evidence that this heavier schedule was a result of employee leave.
(ECF No. 43-4 at PageID 270.) Defendant also points to examples of other shift testers who
worked schedules similar to Plaintiff’s. (ECF No. 54 at PageID 465.)
Plaintiff’s heavier schedule did begin only days after his counsel sent Defendant the
September 6, 2019, letter. “However, temporal proximity alone will not support an inference
of retaliatory discrimination when there is no other compelling evidence.” Imwalle v. Reliance
Med. Prod., Inc., 515 F.3d 531, 550 (6th Cir. 2008). Plaintiff puts forward no other evidence
that would tend to establish a causal connection between his heavy workload and his protest.
Plaintiff also alleges that his termination was retaliatory. (ECF No. 4 ¶ 20.) Plaintiff’s
attorney sent his protest to Defendant on September 6, 2019, and Plaintiff was terminated on
November 22, 2019. (ECF No. 50-1 ¶¶ 32, 35.) The Sixth Circuit has held that an employment
discharge that “came roughly two-and-a-half months after the complaint” did not support “an
inference of causation.” Kean v. IT–Works, Inc., 466 Fed. App’x. 468, 471 (6th Cir. 2012).
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Even a one-month gap between protected activity and an adverse employment action, standing
alone, may be insufficient. Nguyen v. City of Cleveland, 229 F.3d 559, 567 (6th Cir. 2000).
Plaintiff puts forward only temporal proximity as proof of his retaliatory discharge, which is
insufficient to establish a prima facie case. Imwalle 515 F.3d at 550. Defendant, on the other
hand, puts forward significant evidence of a legitimate reason to terminate Plaintiff’s
employment, his admitted poor work performance. (See, e.g., ECF No. 50-1 ¶¶ 20, 26, 29–30,
31.)
Construing the evidence in the light most favorable to the Plaintiff, his retaliatory
discharge claim must fail as he cannot set forth specific facts that would satisfy the fourth prong
of his prima facie case and establish that there was a causal connection between his protected
activity and either his work schedule or his termination.
2. Hostile Work Environment
Defendant is entitled to summary judgment on Plaintiff’s hostile work environment
claims. Plaintiff alleges in his complaint that he was subjected to a “hostile work environment”
when he returned to work after undergoing eye surgery, in January of 2019. (ECF No. 4 ¶ 8.)
This allegation stems from the conduct of “Lab Manager Randle Beasley and co-workers,” who
Plaintiff alleges lodged “false accusations” against him. (Id. ¶ 8.) These accusations were that
he failed to do his work and that he was slow in doing his work. (Id.) He claims that this
treatment was a function of discrimination against him on the basis of his age or perceived
disability. (Id. ¶ 14.) Plaintiff also argues that his “grueling” work schedule amounted to a
hostile work environment. (Id. ¶ 15.)
Defendants note in their reply that Plaintiff “did not make any argument” regarding his
hostile work environment claim and argue that summary judgment should therefore be granted.
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(ECF No. 54 at PageID 467.) However, “[s]ummary judgment should not automatically be
entered if unopposed.” Hitachi Med. Sys. Am., Inc. v. Branch, No. 5:09CV01575, 2011 WL
3921718, at *12 (N.D. Ohio Sept. 7, 2011). Uncontested summary judgment motions must still
be examined by a district court to determine whether genuine issues of material fact remain,
and whether judgment is appropriate as a matter of law. Id.; see also Reese v. Herbert, 527 F.3d
1253, 1269 (11th Cir. 2008).
To establish that one was subjected to a hostile work environment under the ADA, a
plaintiff must show, relevantly, that “[he] was disabled” within the meaning of the statute.
Trepka v. Bd. of Educ., 28 F. App'x 455, 461 (6th Cir. 2002). Plaintiff’s hostile work
environment claim under the ADA must fail here because, as discussed above, he cannot
establish that he was disabled or that he was considered to be disabled by Defendant.
To establish that one was subjected to a hostile work environment under the THRA, a
plaintiff must show “(1) he is a member of a protected class; (2) he was subjected to unwelcome
harassment based upon his protected status; (3) the harassment created a hostile work
environment; and (4) the employer is liable.” Fite v. Comtide Nashville, LLC, 686 F. Supp. 2d
735, 752 (M.D. Tenn. 2010). “In determining whether there is a hostile work environment, the
court must consider the totality of the circumstances, including the frequency of the conduct,
its severity, and the degree to which it interferes with work performance.” Id. (citing Harris v.
Forklift Sys., 510 U.S. 17, 22 (1993)). “A work environment is hostile if, from an objective
and subjective perspective, the harassment is severe and pervasive enough that an abusive
working environment is created.” Id. (citing Bowman v. Shawnee State Univ., 220 F.3d 456,
463 (6th Cir. 2000) (quotation marks omitted)).
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Plaintiff fails to establish a claim that he was subject to a hostile work environment on
the basis of his age on the second prong of the test. Defendant and the union which represented
Plaintiff jointly investigated his January 21, 2019, complaint about harassment in the
workplace. (ECF No. 50-1 ¶¶ 21–22.) Their investigation did not substantiate Plaintiff’s
complaint of workplace bullying and age discrimination. (Id. ¶¶ 22–23.) The investigation did
find several instances of teasing, which had occurred some years prior. (ECF No. 43-2 ¶¶ 8–
12.) Plaintiff does not put forward any evidence that this teasing was based upon his age, nor
does he put forward evidence of any other harassment on the basis of his age.
Construing the evidence in the light most favorable to the Plaintiff, his hostile work
environment claim must fail as he cannot set forth specific facts that would establish that he is
disabled within the meaning of the ADA, nor can he establish that his alleged mistreatment in
the workplace was based upon his age.
3. Common Law Tort
Defendant is entitled to summary judgment on Plaintiff’s common law tort claims.
Plaintiff argues that his work schedule and his termination amount to intentional infliction of
emotional distress (“IIED”) or outrageous conduct in violation of Tennessee common law.
(ECF No. 4 ¶ 1.)
Under Tennessee law, outrageous conduct is not an independent tort, but “has gained
widespread use as a substitute or shorthand for intentional infliction of emotional distress.”
Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012) (“[T]he claims [of outrageous
conduct and intentional infliction of emotional distress] are one and the same”). To state a
claim under the tort of IIED, “(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) the conduct
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complained of must result in serious mental injury.” Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
1997) (citing Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274 (1966)).
Plaintiff’s claim fails under the second prong of this test. It is undisputed that Plaintiff
worked “more shifts than normal” between approximately September 14, 2019, and November
18, 2019. (ECF No. 50-1 ¶ 33.) However, even if Defendant’s scheduling rose to the level of
malicious conduct, it would not satisfy the high standard of IIED. Bain, 936 S.W.2d at 622
(citing Medlin, 398 S.W.2d at 274). The Court cannot find that this work schedule, which
complied with state and federal wage and hour laws and Defendant’s workplace scheduling
policy, could be considered “atrocious and utterly intolerable in a civilized community.” Id.
(citing Medlin, 398 S.W.2d at 274).
Construing the evidence in the light most favorable to the Plaintiff, his IIED claim must
fail as his heavier-than-normal workplace schedule does not rise to the level of outrageous
conduct.
IV.
CONCLUSION
For each of the reasons set forth above, Defendant Valero’s Motion for Summary
Judgment is GRANTED in its entirety. Plaintiff’s claims against Defendant are DISMISSED
WITH PREJUDICE.
SO ORDERED, this 17th day of January, 2023.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
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