KEVIN H. SHARP, District Judge.
In this diversity case alleging employment discrimination in violation of the Tennessee Human Rights Act ("THRA"), Tenn.Code Ann. § 4-21-101 et seq., the sole remaining claim is whether any one or more of the Plaintiffs was subjected to a hostile work environment.
Having reviewed the parties' proposed findings and conclusions, their arguments, the record, the exhibits received in evidence,
1. Plaintiffs Glenda Atkins, Crystal Akridge, Darphelia Akridge, Doris Goodner and Chica Alexander, all African-American females, are former employees in the housekeeping department at the La Quinta Inn and Suites in Franklin, Tennessee. At all relevant times, Jeff Campbell, a Caucasian male, was the General Manager of the property, while Michelle Armour, an African-American female, served as Assistant General Manager.
2. Ms. Atkins began working for Defendant LQ Management, LLC d/b/a La Quinta Inn and Suites
3. Ms. Atkins met with Mr. Campbell, and was hired as the head housekeeper at the Franklin La Quinta in December 2011. This was a promotion and came with a raise.
4. As head housekeeper, Ms. Atkins checked to make sure all of the housekeepers had reported for work. She assigned them the floors they would be on, the rooms they would clean, and prepared the paperwork regarding those assignments. Occasionally, Ms. Atkins also cleaned rooms.
5. Although Defendant asserts that Ms. Atkins had no authority to hire, fire or discipline employees on her own, the credible evidence shows otherwise. Ms. Atkins was told by Mr. Campbell that she would be responsible for hiring and, in fact, she was responsible for hiring each of the other four Plaintiffs in this action. She did so after receiving an application and interviewing them. More often than not, the new housekeeping employee would start the same day as the interview, or the next day. Ms. Atkins also fired at least two employees while she was head housekeeper.
6. Ms. Atkins credibly testified that Mr. Campbell made what she considered to be untoward and/or racist comments, statements and/or actions at least twice a week.
(Docket No. 81, Tr. Trans., Vol. I pp. 27-30).
7. On several occasions, Ms. Armour was present when Mr. Campbell made comments about President Obama, including comments about the President not knowing his race and needing to go back to Africa.
8. At one time or another, each of the Plaintiff's complained to Ms. Atkins about Mr. Campbell,
9. Ms. Atkins was extremely proud that President Obama had been elected. She took particular umbrage at Mr. Campbell's suggestion that the President should not have been elected and needed to go back to Africa, and she told Mr. Campbell as much.
10. At some point, Ms. Atkins learned from her co-workers that Mr. Campbell said he needed to "slap her black ass," after she had been issued a speeding ticket. Mr. Campbell admitted making a comment about smacking Ms. Atkins, but said he was only kidding.
11. Ms. Atkins also complained to Ms. Armour about Mr. Campbell. She met with Ms. Armour in a room at the hotel and told her Mr. Campbell's statements "w[ere] not right," that "he need[ed] to stop," and that the "girls" were offended by his statements about the President, and his remarks about welfare and hair weaves. (Id. at 35). Ms. Armour told Ms. Atkins that she would talk to Mr. Campbell.
12. In addition to complaining to both Mr. Campbell and Ms. Armour, Ms. Atkins called an 800 hotline number that had been set up by La Quinta Inns for discrimination complaints. The call went to voicemail and she left her name and number, but received no return call.
13. Mr. Campbell's comments had a negative emotional affect on Ms. Atkins. She dreaded going to work, did not like
14. Ms. Atkins stepped down from the position of head housekeeper on Oct. 1, 2012,
15. Ms. Atkins now works for Vanderbilt University as a laboratory technician.
16. Ms. Alexander learned from Ms. Goodner about a job opening at the Franklin La Quinta Inn. She was interviewed at the hotel by Ms. Atkins, and began her employment as a housekeeper in June of 2012.
17. In filling out her application for employment Ms. Alexander wrote, "no" in response to the question of whether she had ever been convicted of a crime. In fact, Ms. Alexander pled guilty to dealing cocaine in a school zone, for which she did 18 months in prison. She was released on probation in 2010. Ms. Alexander testified that she omitted her conviction because she really needed a job and was told by Ms. Goodner that the hotel did not conduct background checks.
18. Ms. Alexander was disciplined on one occasion by Ms. Atkins because she did not report (or reported late) to work. She was not disciplined by Mr. Campbell.
19. Ms. Alexander credibly testified that Mr. Campbell made racially insensitive or offensive remarks quite often ("like every other day"), and while she did not hear all of the comments, she was informed by her co-workers of other remarks. She attributed the following statements and/or actions to Mr. Campbell which she found to be racially insensitive or offensive:
(Id. at 77 & 79-80).
20. Ms. Alexander asked Mr. Campbell about what he meant regarding President Obama, and told him that his racist comments hurt her feelings. Generally, Mr. Campbell just "laughed about a lot of things," and would "laugh stuff off or smile about it." (Id. at 79 & 82).
21. Ms. Alexander claims to have tried the 1-800 number but was unsuccessful. She complained to both Ms. Armour and Ms. Alexander about Mr. Campbell's conduct, but was never given a form to complete which would document her allegations.
22. Mr. Campbell's comments were embarrassing to Ms. Alexander, hurt her feelings, affected her self-esteem, and caused her to lose sleep. She testified that she "never lived in a society of racism," and the situation reminded her of her "mom back in the days." (Id. at 81).
23. Ms. Alexander quit her employment in January 2013. She now works as a cashier at a Wendy's restaurant.
24. Ms. D. Akridge sought employment at the Franklin La Quinta Inn at the suggestion of her sister, C. Akridge, and her mother, Ms. Goodner, who put in a good word for her with Ms. Atkins. After Ms. D. Akridge called several times and was told there were no positions then available, she was called by her mother sometime in September 2012, and told to come to the hotel.
25. After speaking with Ms. Atkins (and perhaps Mr. Campbell), Ms. D. Akridge was put to work on September 14, 2012, and filled out the application later that evening. She did not, however, indicate on her application form that she had a prior conviction for being in possession of cocaine in a school zone.
26. Ms. D. Akridge credibly testified that Mr. Campbell made improper remarks about every other day. Specifically, she claims Mr. Campbell made the following comments or took the following actions:
27. On one occasion, Ms. D. Akridge complained to Mr. Campbell about what she perceived to be unequal treatment in housekeeper's room assignments. Mr. Campbell told her that if she did not like it she could quit. After that, she did not complain to him, fearful that she would lose her job.
28. Mr. Campbell's comments made Ms. D. Akridge "feel down" and "humiliated," and lowered her self-esteem.
29. Multiple times, D. Akridge complained about Mr. Campbell's comments to Ms. Atkins, and she was with her mother when Ms. Goodner called the 1-800 hotline number.
30. Ms. D. Akridge left her employment between the middle and end of November 2012.
31. In May 2011, Ms. C. Akridge, who had received a referral from the unemployment office, was interviewed by Ms. Atkins for a housekeeper position at the Franklin La Quinta Inn. Shortly thereafter, Ms. Atkins called to inform her that she was hired.
32. For most of the time during her employment, Ms. C. Akridge worked on the first floor and, as a consequence, had a lot of contact with Mr. Campbell.
33. Ms. C. Akridge credibly testified that Mr. Campbell made untoward comments or took discriminatory actions almost daily. At trial, she testified that Mr Campbell:
(Id. at 164-174).
34. Ms. C. Akridge complained to Mr. Campbell about some of his comments and, particularly his questioning of her about having a $100 bill. However, "he was so used to saying stuff," and often asked her, "why don't you just quit?" (Id. at 167).
35. Ms. C. Akridge told her mother (Ms. Goodner) about the $100 bill incident. She also reported the incident to Ms. Lee (who, as noted, became the head housekeeper after Ms. Atkins went part-time), and later told Ms. Amour about it.
36. The comment about the horse hair made Ms. C. Akridge feel "really bad," as did the statement about her cheating. The latter statement was particularly hurtful and embarrassing because Ms. C. Akridge was trying to better herself. She also felt that "she wasn't respected as a woman, as a single black mother," and was "humiliated and embarrassed." She lost sleep as a result of thinking about the comments and the situation at work. (Id. at 175).
37. Ms. C. Akridge last worked as a CNA, but is now a stay-at-home mom.
36. Ms. Goodner is the mother of D. Akridge and C. Akridge, from whom she learned about an opening at the Franklin La Quinta. Prior to going to work at that hotel, Ms. Goodner worked at the La Quinta on Sidco Drive, and then traveled and worked as a caretaker for a couple that painted La Quinta hotels.
39. Ms. Goodner was interviewed by Ms. Atkins. However, because Ms. Goodner had previously worked for La Quinta, Mr. Campbell had to get approval from corporate to hire her.
40. Ms. Goodner applied for a housekeeping position, but was placed in the laundry. Ms. Atkins was her supervisor.
41. On her application for employment, Ms. Goodner checked "no" in response to the question of whether she had any criminal convictions. This was false, as she has an extensive criminal record, including convictions for food stamp fraud, criminal impersonation, escape from a penal institution, use of stolen license plates, theft, driving on a suspended license, resisting arrest, and possession of drug paraphernalia.
42. The housekeepers started their day by congregating in the laundry where they would load up their carts with supplies. When addressing the housekeepers collectively, Mr. Campbell usually did so in the laundry room.
43. Mr. Campbell made what Ms. Goodner considered to be racists comments two to three times a week. That tapered off, however, after complaints had been made with the EEOC. Specifically, Ms. Goodner testified, that during her employment, Mr. Campbell made the following offensive statements:
(Docket No. 82, Tr. Trans. Vol. II at 14-17).
44. Ms. Goodner complained to Ms. Atkins about Mr. Campbell's offensive comments.
45. At one point, while in the laundry room, Ms. Goodner told Mr. Campbell that what he was saying about the black housekeepers was wrong, and that she "was going to call on him." (Id. at 20). Mr. Campbell then pointed to the sign on the wall and told her to call the 1-800 number. On another occasion, Mr. Campbell told Ms. Goodner that if she was not happy she should just quit. On still a third occasion, after Mr. Campbell and Ms. Goodner argued, Ms. Goodner began to cry, went to a guest room where she was followed by Ms. Amour, told Ms. Amour about some of Mr. Campbell's comments, and said he was a "racist." Ms. Amour said that she would talk to Mr. Campbell, but did not.
46. Ms. Campbell's comments upset Ms. Goodner. She was hurt by his statements regarding the President, and hurt when she learned what he said about her daughter cheating on the CNA test.
47. In early December 2012, Ms. Goodner called the 1-800 hotline and left a message asking to speak to "Stacy or Jay" as soon as possible. She also called Ms. Babl's number who returned the call several days thereafter and left a message.
48. Also in December 2012, Ms. Goodner went to the Equal Employment Opportunity Commission and pick up several Charges which she brought back to the hotel.
49. Ms. Goodner left the Franklin La Quinta to work at another La Quinta. However, she was fired from that position for lying on her application after her deposition was taken in this case. She now works as the Assistant Lead in the dietary department at Life Care of Old Hickory.
50. Mr. Campbell was the General Manager of the Franklin La Quinta from May 2011 until July 2013. His supervisor was Mr. Wolfe.
51. At trial, Mr. Campbell flatly denied making any racially offensive comments or statements and claimed that "never had any problem at all" with Plaintiffs, or any of his other employees. (Id. at 81). He also stated that he joked with all of his employees, but none of the jokes was racial in nature. Mr. Campbell further testified that no one ever complained to him about any racial comments or harassment at the Franklin La Quinta, flatly denied making the racist comments and statements attributed to him by Plaintiffs, and claimed that he "never made a racial comment at any time when I've been working in a hotel or anywhere else." (Id. at 94).
52. Mr. Campbell conceded only that he (A) once told Ms. Alexander to drink out of the water fountain because they
53. Mr. Campbell also testified that the head housekeeper could not hire or fire, and that all such decisions were make by him, although he conceded that each of the Plaintiffs was interviewed for a housekeeping position by Ms. Atkins.
54. The Court did not find Mr. Campbell to be a credible witness, and rejects his blanket denial that he never made any racially offensive remarks. To the contrary, the Court found each of the Plaintiff's testimony to be credible and finds that racially offensive comments were made frequently and on a regular basis at the Franklin La Quinta Inn during the relevant times. While some of the comments may have been jokingly made, they were not accepted as such by Plaintiffs.
55. The Court further finds that, while Ms. Atkins may not have technically had the authority to hire and fire, Plaintiffs believed she had that authority, and Ms. Atkins exercised that authority in practice.
56. Ms. Armour began working at the Franklin La Quinta Inn in June 2012, having previously worked as the manager of a Extended Stay America hotel. During the relevant period, she split her time as an Assistant Manager between the Sidco Drive and Franklin La Quinta hotels.
57. After being hired by Defendant, Ms. Armour received "hands-on training" in Austin, Texas which including training on what to do after receiving a discrimination complaint. Pursuant to that training, Ms. Armour was to report complaints to the General Manager, unless the complaint was about the General Manager, in which case a report was to be made to the Regional Vice President.
58. Ms. Armour claims that she never heard Mr. Campbell make any racial jokes, racially derogatory marks, or racial slurs. More specifically, she denies ever hearing Mr. Campbell make derogatory remarks about (A) President Obama; (B) anyone's hair; (C) Mother's day; (D) welfare; or (E) chitlins. Ms. Armour also specifically denied that Ms. Atkins complained about Mr. Campbell calling the black housekeepers monkeys, or that Ms. Goodner told her that Mr. Campbell was a racist, and claims that she never saw Ms. Goodner cry.
59. Ms. Armour's blanket denials were no more believable than Mr. Campbell's. She was particularly unbelievable when she denied (or claimed not to remember) Ms. Goodner crying and telling her that Mr. Campbell was a "racist," even though that event was memorialized in Ms. Babl's notes.
60. Ms. Staci Babl began her employment with La Quinta in September 2002 as a Field Human Resources Manager, with her primary role being to "receiv[e] employee concerns and investigate them." (Id. at 131). Her responsibilities encompassed six regions, containing approximately 150 hotels. She has a PHR ("Professional in Human Resources") certification which she received by taking a
61. Each employee receives a handbook upon beginning there employment which contains the anti-harassment policy. That policy provides:
(Def. Ex. 12).
62. According to Ms. Babl, employees with a complaint have "several avenues... [t]hey can contact one of their managers, general manager, assistant general manager," call the 1-800 helpline number, or contact her using the number found on a poster that is posted near the time clock.
63. Ms. Babl testified that the 1-800 number is a voice mailbox. Each morning an employee at the corporate office listens to the voice mail, but Ms. Babl has no personal knowledge as to whether the employees are instructed to log everything that is said. According to practice, the employee then passes the information on to the correct field human resources manager, either from the employee's indication of which hotel is involved, or by the caller's area code. The regional human resources representative is then supposed to make contact with the complaining employee. Once logged, the voicemails are deleted.
64. Ms. Babl claims to have first learned about employment problems at the Franklin La Quinta Inn in early December 2012. As noted previously, on December 5, 2012, Ms. Goodner left a voice mail requesting that either she or Mr. Jay call her as soon as possible, and Ms. Babl received that message a couple days later. Ms. Babl returned Ms. Goodner's call on December 11, but received only voicemail and left a message. Ms. Babl does not recall receiving any other messages from any of the Plaintiffs via the hotline.
65. Ms. Babl traveled to the Franklin La Quinta and conducted interviews on January 10, 2013. She testified that she understood the complaint to be that white housekeepers were required to clean fewer rooms than the black housekeepers, and that white housekeepers were allowed to work more hours.
66. Ms. Babl interviewed Mr. Campbell, Ms. Armour, two of the Plaintiff (Ms. Goodner and Ms. C. Akridge), and a few other housekeepers at the hotel. A couple of weeks later, on February 9, she interviewed Ms. Atkins by phone.
67. When Ms. Babl interviews an employee, she writes down the answers to the questions she asks. She then goes over
68. Ms. Babl claim that neither Ms. Goodner, Ms. C. Akridge, or Ms. Atkins told her that Mr. Campbell was a racist, nor did they mention racial harassment. She further claims that none of the other housekeepers she interviewed (white or black) mentioned racial harassment or a hostile work environment.
69. Ms. Babl concluded that there was "no evidence that there were any differences in what was being assigned in terms of rooms, room assignments, and hours worked." (Id. at 153).
70. Ms. Babl testified that the first time she heard allegations about racial harassment was after this suit was filed, which precipitated another trip to the Franklin La Quinta. However, in her January 10, 2013 interview notes for Ms. Armour, Ms. Babl wrote that Ms. Armour reported that (1) Ms. Goodner and Mr. Campbell had argued; (2) Ms. Goodner went to a room at the hotel and was crying; and (3) Ms. Goodner accused Mr. Campbell of being a racist. Ms. Babl took that to mean racism in room assignments, and did not bother to follow up by asking Ms. Armour what the statement was in reference to, nor did she follow-up on Ms. Goodner's statement that Ms. Armour said that Mr. Campbell "needs to stop doing this." (Id. at 162). Ms. Babl conceded that if Ms. Armour learned of the details surrounding Ms. Goodner's claim that Mr. Campbell was a racist, it was incumbent on Ms. Armour to report it to her.
71. Ms. Babl now works for as the Manager of Human Resources for the Elmbrook School District in Brookfield, Massachusetts, having left La Quinta shortly before the trial in this case.
72. On the ultimate issue of credibility, the Court finds that Plaintiffs were credible; Mr. Campbell and Ms. Armour were not. The Court finds that Mr. Campbell made racial statements and comments on a regular basis, that most Plaintiffs directly complained to him about his comments, that one or more of the Plaintiffs complained to Ms. Armour who herself witnessed several incidents, and that one or more of the Plaintiff's called the corporate hotline to air their complaints about racial harassment.
73. In making that assessment, the Court has considered the absence of specific allegation of racial harassment in the discrimination charges, Ms. Babl's claim that neither of the Plaintiff's she interviewed in person complained about racial harassment, and that some of the allegations Plaintiff's made at trial were not testified to in their depositions. However, as the Court pointed out at the close of Plaintiff's case, "objectively, the story rings true to [the Court], not on all the details, but the core of this seems pretty doggone believable." (Id. at 77). Having had the opportunity to consider the arguments raised by the parties regarding credibility, the Court confirms those observations.
71. In assessing credibility, the Court has also considered that hearing Plaintiffs' testimony was, in some respects, to quote the recently departed Yogi Berra, like "deja vu all over again" in the sense that
The THRA was enacted to "[s]afeguard all individuals within the state from discrimination because of race, creed, color, religion, sex, age or national origin in connection with employment," and to "[p]rotect their interest in personal dignity and freedom from humiliation[.]" Tenn. Code Ann. § 4-21-101(a)(2) & (a)(3).
"The touchstone of any hostile work environment claim ... is whether `the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Khamati v. Sec'y of Dep't of the Treasury, 557 Fed.Appx. 434, 442-43 (6th Cir.2014) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). To determine whether workplace harassment is sufficiently severe or pervasive, the Court is to consider the "totality of the circumstances." Williams v. Gen. Motors, 187 F.3d 553, 562 (6th Cir.1999).
The Court is also required to utilize both an objective and subjective test: "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 the environment as abusive." Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir.2000). "Among the factors to be considered are `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Clark v. United Parcel Serv., Inc., 400 F.3d 341, 352 (6th Cir.2005) (quoting, Harris, 510 U.S. at 23, 114 S.Ct. 367).
Still, the inquiry into whether a working environment is hostile is not subject to a "mathematically precise test," Harris, 510 U.S. at 22, 114 S.Ct. 367, and there is no bright line "`between a merely unpleasant working environment ... and a hostile or deeply repugnant one,'" McPherson v. City of Waukegan, 379 F.3d 430, 438 (7th Cir.2004) (citation omitted). Moreover, a working environment need not be "hellish" to establish a claim; "something short of the Ninth Ring" may violate anti-harassment statutes. Jackson v. Cnty. of Racine, 474 F.3d 493, 500 (7th Cir.2007). As the Supreme Court has stated:
Harris, 510 U.S. at 21, 114 S.Ct. 367. See also Williams v. CSX Transp. Co., Inc., 533 Fed.Appx. 637, 641 (6th Cir.2013).
From a subjective standpoint, the employment environment the Franklin La Quinta was hostile and abusive. Each Plaintiff testified that it was, and their testimony was credible.
The environment was also hostile or abusive from an objective standpoint. The preponderance of the evidence shows that, at a minimum, Mr. Campbell made racially offensive comments or statements and/or took actions based on race several times a week. While some of the comments may have been misguided attempts at humor, others were downright offensive, and all were unwelcome. See, Williams v. CSX Transp. Co., 533 Fed.Appx. 637, 641 (6th Cir.2013) ("Conduct need not be both severe and pervasive to constitute a hostile environment, but may be either sufficiently severe or sufficiently pervasive"); Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 209 (4th Cir.2014) (noting that "`severe or pervasive' prong is not answered by a `mathematically precise test,'" and stating that "alleged environment consisted of comments of varying degrees of offensiveness being made to [plaintiff] several times a week for well over a year" may be objectively severe); Ellis v. Houston, 742 F.3d 307, 320 (8th Cir.2014) ("racist remarks on a near daily basis" can meet objective prong of hostile work environment claim); Lyle v. The Cato Corp., 730 F.Supp.2d 768, 779 (M.D.Tenn.2010) (observing that a court must consider "the work environment as a whole" and concluding that "offensive and pejorative comments about African Americans made by Plaintiff's supervisors [that] allegedly occurred several times a week" could amount to a hostile work environment).
To be sure, not every Plaintiff heard every statement or was present when all the untoward comments were made. However, the Sixth Circuit has "rejected the `extremely narrow view of workplace harassment ... in which every single member of a protected class would have to suffer a series of affronts both explicitly racial and personal in nature before she could claim the existence of a hostile work environment.'" Armstrong v. Whirlpool Corp., 363 Fed.Appx. 317, 325 (6th Cir. 2010) (quoting Jackson v. Quanex, 191 F.3d 647, 658, 659-60 (6th Cir.1999)). Rather, "Sixth Circuit caselaw addressing other-act evidence ... makes clear that [a court] may consider evidence of other acts of harassment of which a plaintiff becomes aware during the period [of] his or her employment, even if the other acts were directed at others and occurred outside of the plaintiff's presence." Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 335 (6th Cir.2008). After all, "consideration of offensive acts solely directed at the plaintiff in isolation from other acts that occur in the workplace would `defeat the entire purpose of allowing claims based upon a hostile work environment theory, as the very meaning of environment is [t]he surrounding conditions, influences or forces which
Here, the preponderance of the evidence shows that a reasonable person in the Plaintiffs' position would have found the work environment hostile. On a regular basis, each Plaintiff was subjected to offensive remarks or comments, and they learned of similar racially tinged remarks from their co-workers.
This does not end the inquiry because the Tennessee Supreme Court has specifically held that the Faragher-Ellerth defense applies to hostile work environment claims under the THRA. Parker v. Warren Cnty. Util. Dist., 2 S.W.3d 170, 176 (Tenn.1999). This defense, based upon Burlington Industries Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), provides that employers are not automatically liable for harassment perpetuated by their employees, with the parameters of the defense defined by whether the alleged harasser is a co-worker or a supervisor.
Where, as here, the harassment is attributed to a supervisor and there is no tangible adverse employment action, the employer is liable for a hostile work environment created by that supervisor unless it shows that it (1) "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (2) "the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'" Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. This is an affirmative defense which Defendant must prove by a preponderance of the evidence. Faragher, 524 U.S. at 807, 118 S.Ct. 2275.
Defendant asserts that it has met both prongs of the Faragher/Ellerth defense. As for the first prong, it points to (1) the Policy Prohibiting Harassment as set forth in the Employee Handbook which states that "Employees who feel they have been subjected to such prohibited conduct, whether involving fellow employees, supervisors, guests or other third parties, must report it to their
Defendant's focus on the General Manager, the Human Resources Manager, and the Regional Vice-President is too narrow, both under the law and under the facts in this case.
"Generally, an employer satisfies the first part of the Faragher/Ellerth two-part standard when it has promulgated and enforced a ... harassment policy." Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 275 (6th Cir.2009). However, and "[r]egardless of whether the victimized employee actively complained, prong one of the defense ensures that an employer will not escape vicarious liability if it was aware of the harassment but did nothing to correct it or prevent it from occurring in the future." Clark v. United Parcel Serv., 400 F.3d 341, 350 (6th Cir. 2005).
Moreover, Defendant's own hotline poster instructed employees:
(Def. Ex. 11). As Assistant General Manager, Ms. Armour was indisputably "another manager." In fact, both she and Ms. Babl confirmed at trial that, as an assistant manager, Ms. Armour had a duty to report any harassing conduct and report complaints about such conduct.
Given the language in the hotline poster, and given Defendant's employee's own understanding of the policy, it can hardly be said that Plaintiffs' unreasonably failed to take advantage Defendant's anti-harassment policy. See, Gallagher, 567 F.3d at 277 ("An employer is deemed to have notice of harassment reported to any supervisor or department head who has been authorized — or is reasonably believed by a complaining employee to have been authorized — to receive and respond to or forward such complaints to management."). Defendant has not proven its entitlement to the Ellerth/Faragher defense by a preponderance of the evidence.
"The THRA provides broad remedies to prevailing parties, including reinstatement, damages for humiliation and embarrassment, reasonable attorney's fees, and costs of litigation." Sneed v. City of Red Bank, 459 S.W.3d 17, 28 (Tenn.2014) (citing Tenn.Code Ann. § 4-21-311(b)). Here, Plaintiffs seek damages in "the range of" $250,000 to $350,000 each for "anger, frustration, embarrassment, humiliation, and emotional pain." (Docket No. 88 at 50).
In support of their request, Plaintiffs rely on Lilley v. BTM Corp., 958 F.2d 746 (6th Cir.1992), Moorer v. Baptist Mem'l Health Care Sys., 398 F.3d 469 (6th Cir. 2005), Miller v. Alldata Corp., 14 Fed. Appx. 457 (6th Cir.2001) and Bailey v. USF Holland, Inc., 526 F.3d 880 (6th Cir. 2008), all Sixth Circuit decisions that upheld awards within the range sought by Plaintiffs. This Court has read and considered each of those cases and does not find them particularly helpful. All, save Bailey, involved allegedly wrongful terminations, and affirmed awards with little
Not to denigrate what occurred at the Franklin La Quinta, the conduct and the statement here pale in comparison those in Bailey. And, unlike Bailey, the conduct and statements did not extend over years and involved only one actor.
Compensatory damages are "intended to make a plaintiff whole [and] compensate the plaintiff for damage or injury caused by a defendant's wrongful conduct." Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 419 (Tenn. 2013). Such damages need not be calculated with "`mathematical precision,'" but "must ... be proven with reasonable certainty." Memphis Light, Gas & Water Div. v. Starkey, 244 S.W.3d 344, 354 (Tenn. Ct.App.2007).
The Court's goal is "to make a fair and reasonable assessment of damages," Riad v. Erie Ins. Exchange, 436 S.W.3d 256, 275 (Tenn.Ct.App.2013), not to provide a "windfall," Shelby Cnty. Health Care Corp. v. Baumgartner, 2011 WL 303249, at *17 (Tenn.Ct.App.2011). Moreover, "compensatory damages require individual determinations." Ellis v. Costco Wholesale Corp., 657 F.3d 970, 987-88 (9th Cir.2011); see, In re Urethane Antitrust Lit., 768 F.3d 1245, 1259 (10th Cir.2014) (Noting "necessity of individual determinations on damages"); In re Whirlpool Corp., 722 F.3d 838, 845 (6th Cir.2013) (affirming certification of class where "[p]roof of damages [was] reserved for individual determination").
Here, the Court finds that a just and reasonable award for each Plaintiff should be based primarily upon the length of time that each worked at the Franklin La Quinta and that statements and conduct that each was subjected to. The Court finds the following to be proper compensation:
In addition to compensatory damages, Plaintiffs are entitled to recover reasonable attorney's fees under the THRA. Tenn.Code Ann. § 4-21-311. However, the Court will defer ruling on the amount of appropriate fees until such time as any appeal has been completed, or the time for taking an appeal has expired and Plaintiffs have filed a Motion for Attorney's Fees in compliance with Local Rule 54.01.
On the basis of the foregoing, the Court finds liability in favor of each Plaintiff and
