ALETA A. TRAUGER, District Judge.
Pending before the court is the Motion for Summary Judgment filed by the defendant (Docket No. 30), to which the plaintiff has filed a response (Docket No. 36), and in support of which the defendant has filed a reply (Docket No. 39). For the reasons discussed below, the defendant's motion will be granted in part and denied in part.
The plaintiff, Angela Norman, is a Certified Nurse Technician who was employed as a mental health specialist by defendant Rolling Hills Hospital, LLC ("Rolling Hills").
Rolling Hills hired the plaintiff as a full-time employee in June 2009. The plaintiff alleges that, in the following months, two white co-workers made several racially insensitive statements. In particular, nurse Emily Porter
The plaintiff further alleges that the Director of Nursing, Angela Klinikowski, was "bubbly and friendly" toward white employees but "talked down" to the plaintiff and other African-American employees. (Id. at 75, 150; see also id. at 102) ("[Klinikowski's] demeanor is totally different to the black employees than it is to the Caucasian employees.") At her deposition, the plaintiff recounted one instance where Klinikowski pointed at her and told her to pick up a piece of paper from the floor. The plaintiff testified that there were also "several incidents" where Klinikowski had "pointed at [her]" and "just belittled [her.]" (Id. at 77). In addition, Klinikowski once harshly told the plaintiff, in front of another supervisor, that the plaintiff was not where she was supposed to be. (Id.) The plaintiff testified that these incidents "totally humiliated" and "embarrassed" her. (Id.) The plaintiff did not, however, ever hear Klinikowski use racial slurs or make derogatory jokes.
On the morning of October 15, 2009, the plaintiff met with Elizabeth Starnes, Rolling Hills' Director of Human Resources, to report the allegedly racist conduct of Klinikowski, Porter, and Evans. Starnes told the plaintiff that she would speak to Porter and Evans and would implement diversity classes.
Later that afternoon, the plaintiff noticed that Klinikowski seemed "upset" with her. (Id. at 156.) At 5:30 pm, the plaintiff
Porter and Beasley were not written up on October 15. On November 15, 2009, the plaintiff filed a charge of discrimination with the Tennessee Human Rights Commission, and on December 7, 2009, Rolling Hills received a copy of the charge. On December 17 and 21, 2009, Rolling Hills issued Corrective Action Forms to Porter and Beasley, respectively, for the September 20 restraint incident. Those forms were backdated to October 16, 2009, although the supervisors' signatures reflected December dates. At his deposition, Justin Adams, a human resources manager and Rolling Hills' Rule 30(b)(6) witness, testified that he did not know why Porter and Beasley were not disciplined earlier. (Id., Ex. 3 at 78.)
At her deposition, the plaintiff testified that Klinikowski's treatment of her became "a hundred times worse" after her complaints of discrimination. (Id., Ex. 1 at 154.) In addition, in late December 2009, the plaintiff's work hours were cut from three to two 12-hour shifts per week. The plaintiff testified that, at some undefined time, she had discussed with Starnes the possibility of cutting her hours and working part time. Nevertheless, the plaintiff testified that she eventually "chose to stay on full time." (Id. at 164.) The plaintiff claims that her shifts were reduced in retaliation for her complaints regarding discrimination, while Rolling Hills argues that it was merely fulfilling her earlier request.
In January 2010, the plaintiff requested a medical leave of absence for anxiety and depression. On January 13, 2010, Rolling Hills granted a 30-day leave, and on February 12, 2010, it granted another 30-day leave. In March, however, the plaintiff did not return to work. At her deposition, the plaintiff testified that there was "no way [she] could have gone back under those [discriminatory] circumstances." (Docket No. 38, Ex. 1 at 183.) At some point, the plaintiff asked a co-worker to check to see if she had been placed on Rolling Hills' work schedule, but she had not. In late May 2010, the plaintiff called Starnes and left a message, but Starnes never returned her call. (Docket No. 38, Ex. 1 at 180.) In October 2010, after ten months of the
In her Amended Complaint, the plaintiff has asserted claims for violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Tennessee Human Rights Act ("THRA"), Tenn.Code Ann. § 4-21-101 et seq.
Rule 56 requires the court to grant a motion for 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). If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiff's claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings "set[ting] forth specific facts showing that there is a genuine issue for trial." Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir.2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In evaluating the evidence, the court must draw all inferences in the light most favorable to the [plaintiff]." Moldowan, 578 F.3d at 374.
At this stage, " `the judge's function is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). But "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient," and the plaintiff's proof must be more than "merely colorable." Anderson, 477 U.S. at 249, 252, 106 S.Ct. 2505. An issue of fact is "genuine" only if a reasonable jury could find for the plaintiff. Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
The court will first examine the plaintiff's hostile environment claim. The defendant argues that the plaintiff has failed to present sufficient evidence of severe and pervasive harassment. (Docket No. 31 at 11-14.)
Although the plaintiff has asserted her claims under Title VII, § 1981, and the THRA, the court need only conduct a single analysis. Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir.1999) (noting that § 1981 claims are reviewed "under the same standards as claims of race discrimination brought under Title VII"); Mullins v. Goodyear Tire & Rubber Co., 291 Fed.Appx. 744, 745 n. 1 (6th Cir.2008) ("The THRA is a state law analogue to Title VII and the statutes are analyzed identically."). To establish the existence of a hostile work environment under Title VII, the plaintiff must show that: "(1) she is a member of a protected class; (2) she was subjected to unwelcomed racial harassment; (3) the harassment was race based; (4) the harassment unreasonably interfered with her work performance by
To satisfy the fourth prong of this test, the plaintiff must show that "the harassment was `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' " Id. at 707 (quoting Williams v. Gen. Motors Corp., 187 F.3d 553, 560, 562 (6th Cir.1999)). This showing has both an objective and a subjective component. Id. "It requires the court to examine, under the totality of the circumstances, `the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with an employee's performance.'" Id. (quoting Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 733 (6th Cir.2006)) (alteration in original).
Here, the plaintiff has presented evidence of seven specific incidents that occurred over the course of five months: (1) Evans' request that the plaintiff quiet down because they were not "in the hood"; (2) Evans' suggestion that all African-Americans eat chicken; (3) Evans' statement that another employee looked like Buckwheat; (4) Porter's question regarding how it felt to have a black father and white mother; (5) Porter's question regarding how the plaintiff could afford her house and laptop; (6) Klinikowski's demand that the plaintiff pick up a piece of paper from the floor; and (7) Klinikowski's statement that the plaintiff was not where she was supposed to be. The latter three incidents were not explicitly racial. The plaintiff also testified that, generally, Klinikowski talked down to her and spoke to her in harsh tones. (See Docket No. 38, Ex. 1 at 103 (stating that Klinikowski "always talks down ... to the black employees"), 105 (stating that the plaintiff witnessed Klinikowski "be ugly to" another black employee), 150 ("Just even the way that [Klinikowski] spoke to us as staff was harsh—harsh when she spoke to us as the black employees."), 154 (stating that the plaintiff once "passed [Klinikowski] in the hallway and she wouldn't even speak" and that, after the plaintiff had complained of discrimination, Klinikowski's conduct became "a hundred times worse").)
Taken together, however, this evidence is not enough to support a prima facie claim. The handful of isolated statements by Evans and Porter, while offensive, are plainly insufficient to create a hostile work environment. These incidents "amount[] to `mere offensive utterances,' which are not actionable under Title VII." Clay, 501 F.3d at 708 (finding that 15 specific instances of harassment over the course of two years were not "pervasive"); see also Morris v. Oldham County Fiscal Court, 201 F.3d 784, 790 (6th Cir.2000) (stating that "simple teasing, offhand comments, and isolated incidents" do not create a hostile environment); Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1086 (8th Cir.2010) (finding that sporadic racist comments, including incidents regarding fried chicken and Buckwheat, were insufficient to show a hostile work environment).
Furthermore, the plaintiff has not produced sufficient evidence to maintain a claim based on Klinikowski's conduct. The plaintiff has given only two specific examples of Klinikowski's rude behavior, in which Klinikowski used harsh tones when speaking to her. Again, these incidents are too isolated to create a hostile work environment. Aside from those examples, the plaintiff testified that Klinikowski was generally rude. But the plaintiff's vague allegations—which do not involve explicitly racial harassment—are not enough to support
Because the plaintiff's evidence does not sufficiently show that she was subjected to severe, pervasive racial harassment, the court will dismiss her hostile environment claim.
Next, Rolling Hills argues that the plaintiff cannot state a prima facie claim for racial discrimination or disparate treatment. (Docket No. 31 at 5-8.)
The court will analyze the plaintiff's discrimination claim under the familiar McDonnell Douglas burden-shifting framework.
To establish a prima facie claim of racial discrimination, the plaintiff must demonstrate that: (1) she was a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position; and (4) a person outside of the protected class was treated more favorably than she. Id. In the context of a discrimination claim, an "adverse employment action" "requires a materially
The defendant argues that the plaintiff has not shown that she suffered an adverse employment action. (Docket No. 31 at 7-8.) In response, the plaintiff argues that her diminished hours, the disciplinary writeup, and the teasing and rudeness that she endured constitute adverse actions.
The writeup that the plaintiff received does not constitute an adverse employment action. Hill v. Nicholson, 383 Fed.Appx. 503, 509 (6th Cir.2010) (holding that a written counseling was not an adverse employment action because it did not have "any long-term impact on the terms or conditions of [the plaintiff's] employment"). " `In general, a negative performance evaluation does not constitute an adverse employment action unless the evaluation has an adverse impact on an employee's wages or salary.' " Id. (quoting White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir.2008)). Here, the plaintiff's wages were not impacted by the writeup. Nor does the teasing and rudeness by the plaintiff's co-workers, which was not severe enough to create a hostile work environment, constitute an adverse action.
The plaintiff did suffer an adverse employment action, however, when her hours—and, consequently, her weekly pay—were cut in December 2009. Because the defendant did not cut the hours of the plaintiff's white co-workers, the plaintiff has established a prima facie claim of discrimination based on that action. The defendant argues that it had a legitimate reason for reducing the plaintiff's hours—namely, that it was honoring the plaintiff's request to work part time. The defendant relies exclusively on the plaintiff's deposition testimony for this proposition. The plaintiff did testify that, at some point, she discussed the possibility of working part time with the human resources department, but she also explicitly testified that she "chose to stay on full time." (Docket No. 38, Ex. 1 at 164.)
Accordingly, the plaintiff's racial-discrimination claim, to the extent that it is based on the December 2009 reduction in her hours, will remain for trial.
Finally, the defendant argues that the plaintiff cannot maintain her retaliation claim. (Docket No. 31 at 16-19.)
To establish a prima facie claim of retaliation, a plaintiff must show that: "(1) the employee has engaged in Title VII-protected activity; (2) the employer had knowledge of this fact; (3) the employee suffered an adverse employment action; and (4) there is a causal connection between the protected activity and the adverse employment action." The parties agree that the plaintiff's complaint to Starnes regarding racial discrimination and the plaintiff's EEOC charge were Title VII-protected activity and that the defendant knew of this activity.
The defendant once again argues, however, that the plaintiff has not shown an adverse employment action. (Docket No. 31 at 17.) But the burden of showing an adverse employment action is "less onerous in the retaliation context than in the anti-discrimination context." Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595-96 (6th Cir.2007). To show an adverse action, a plaintiff must show that the employer's conduct "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quotation marks omitted).
For the reasons already discussed, the December 2009 reduction in the plaintiff's hours was an adverse employment action. Moreover, with respect to the retaliation claim, the disciplinary writeup that the plaintiff received also constitutes an adverse action. If employees know that they will receive writeups in retaliation for reporting racial discrimination, they might reasonably feel dissuaded from making such reports.
The defendant further argues that there is no causal connection between the adverse actions and the plaintiff's protected activity. But the plaintiff received her writeup on the same day that she reported the alleged discrimination to Starnes, and her hours were reduced within three weeks of Rolling Hills' receipt of her Tennessee Human Rights Commission charge. " `[E]vidence ... that the adverse
The defendant claims that it had a legitimate reason for the disciplinary writeup, because Klinikowski and Starnes actually believed that the plaintiff had improperly restrained the patient.
Accordingly, the plaintiff's retaliation claim, to the extent that it is based on the reduction in her hours and on the writeup that she received, will remain for trial.
For the reasons discussed above, the defendant's Motion for Summary Judgment will be granted in part and denied in part. The plaintiffs' claim for hostile work environment will be dismissed. Her claims for discrimination and retaliation, as limited herein, will remain for trial.
An appropriate Order will enter.
At least one federal district court has declined to follow Gossett. Moling v. O'Reilly Auto., Inc., No. 09-1100, 2011 WL 112586, 2011 U.S. Dist. LEXIS 3543 (W.D.Tenn. Jan. 13, 2011); see also Blackburn v. Shelby County, 770 F.Supp.2d 896, 934 (W.D.Tenn.2011) (citing Moling). After conducting a thorough analysis, the Moling court found that Gossett announced a state procedural rule that is not binding on federal courts. 763 F.Supp.2d at 973-78. This court does not need to address the issue, however; even under the McDonnell Douglas framework, the plaintiff's discrimination and retaliation claims remain for trial.
The plaintiff does not treat her alleged constructive discharge as a separate claim. In any event, nothing, aside perhaps from the reduction in hours, suggests that the alleged discrimination here was so remarkable that she was effectively forced to resign. Indeed, as explained above, the alleged teasing and rudeness endured by the plaintiff is insufficient to meet the lower threshold of a hostile environment claim. See id. (noting that, even if a plaintiff has proven a hostile environment, she has not necessarily proven a constructive discharge).