MARVIN E. ASPEN, District Judge.
Plaintiff John Pendleton, an African-American, filed this lawsuit against his employer, Bob Frensley Chrysler Jeep Dodge Ram, Inc. ("Bob Frensley"), and his supervisor, Thomas Mowell ("Mowell"), alleging violations under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S. § 2000e, et seq., 42 U.S.C. § 1981 ("Section 1981"), and the Tennessee Human Rights Act,
Plaintiff began working as a car salesman for Defendant Bob Frensley on February 26, 2014. (Resp. SOF ¶ 1.) Plaintiff's last day of work was April 26, 2014. (Id.) During Plaintiff's tenure at Bob Frensley, Defendant Mowell served as Bob Frensley's New Car Manager and was Plaintiff's supervisor. (Mowell Dep. at 2, 27.) Plaintiff testified that throughout his employment at Bob Frensley, Mowell made offensive racially derogatory statements to Plaintiff on a daily basis. (Add. SOF ¶ 5.) According to Plaintiff, Mowell told "nigger jokes," made fun of the way African-Americans spoke, told Plaintiff that "the only thing that niggers could do was wash cars," said that "he had a big dick like a nigger," and informed Plaintiff that he left his previous employer because his supervisor was a "lazy nigger." (Pendleton Dep. at 73, 111-12, 120.) Plaintiff stated that Mowell made racially inappropriate comments every day; that the comments were constant. (Id. at 111.) According to Plaintiff's testimony, he did not find Mowell's jokes funny; instead; "it was sickening just having to work [at Bob Frensley] or [be] around [Mowell]." (Id. at 113.) Mowell denies making any racially derogatory statements. (Mowell Dep. at 41-44.)
Plaintiff testified that he complained of Mowell's inappropriate conduct to both Mowell and Jon Henderson ("Henderson"), another Bob Frensley Manager. (Pendleton Dep. at 107.) Plaintiff testified that he complained to Mowell daily and complained to Henderson several times, specifically telling the men that "the nigger jokes have to stop." (Id. at 107-08.) According to Plaintiff, Defendants took no correction action in response to his complaints. (Add. SOF ¶ 17.) Defendants deny that Plaintiff ever complained of racial discrimination or harassment. (Resp. Add. SOF ¶ 15.) According to company policy, employees are required to report discrimination or harassment to "department managers." (Add. SOF ¶ 14.) Under the same policy, department managers are then required to report any complaints to Jennifer Webb ("Webb"), Bob Frensley's owner and general manager. (Id. at 16.) During Plaintiff's time at Bob Frensley, Mowell and Henderson were both department managers. (Id.) Neither Mowell nor Henderson informed Webb of Plaintiff's allegations. (Id.)
On April 26, 2014, Plaintiff was involved in an incident at Bob Frensley with a Caucasian salesman, Derek Ritchie ("Ritchie"). (Id. at 24.) That day, Plaintiff was assisting customers with a sale when Mowell directed Ritchie and another Caucasian salesman, Mr. Whittle ("Whittle") to assist Plaintiff.
Defendants deny that Plaintiff was fired and assert that Plaintiff was administratively discharged when he failed to return to work on Monday, Tuesday and Wednesday following the incident.
Plaintiff testified that a second African-American salesman, Willie Epps ("Epps"), was similarly terminated by Defendant Bob Frensley following a separate incident with a Caucasian employee, Jason Whittle. (Id. ¶ 18; Pendleton Dep. at 84-86.) Epps testified that it was Defendant Mowell who stepped in to break up the confrontation and that Mowell witnessed Whittle instigate the fight.
Plaintiff filed his charge with the E.E.O.C. on May 1, 2014. (Add. SOF ¶ 18.) Defendant Bob Frensley did not investigate Plaintiff's E.E.O.C. claims. (Webb Dep. at 59.)
Summary judgment is proper only when "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 genuine issue for trial exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); see also DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004) (describing the issue as "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") (internal quotation omitted). This standard places the initial burden on the moving party to identify those portions of the record that "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (internal quotations omitted). Once the moving party meets this burden of production, the nonmoving party "must go beyond the pleadings" and identify portions of the record demonstrating that a material fact is genuinely disputed. Id.; Fed. R. Civ. P. 56(c). The nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts." Amini v. Oberlin Coll., 440 F.3d 350, 357 (6th Cir. 2006) (internal quotation omitted). In deciding whether summary judgment is appropriate, however, we must accept the nonmoving party's evidence as true, and draw all reasonable inferences in that party's favor. Anderson, 477 U.S. at 255, 106 S. Ct. at 2513; see Clayton v. Meijer, Inc., 281 F.3d 605, 609 (6th Cir. 2010).
Plaintiff alleges that Defendants: (1) discriminated against him based on his race, (2) retaliated against him based on his complaints of discrimination, and (3) created a hostile work environment. We discuss each claim in turn.
Plaintiff brings his race discrimination claim under Title VII, § 1981, and the THRA, yet we need only conduct one analysis. Jackson v. Quanex Corp., 191 F.3d 647, 659 (6th Cir. 1999) (explaining that § 1981 claims are analyzed "under the same standards as claims of race discrimination brought under Title VII"); Chattman v. Toho Tenax Amer., Inc., 686 F.3d 339, 346 (6th Cir. 2012) (analyzing THRA claims under the Title VII standard); Mullins v. Goodyear Tire & Rubber Co., 291 Fed. Appx. 744, 745 n.1 (6th Cir. 2008) ("The THRA is a state law analogous to Title VII and the statues are analyzed identically.").
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer
Plaintiff argues that he has presented sufficient direct evidence of discrimination to defeat summary judgment. Specifically, Plaintiff alleges that Defendant Mowell's discriminatory statements leading up to and on April 26 constitute direct evidence of discriminatory animus. (Resp. at 11-13.) We agree.
"Direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 650 (6th Cir. 2012) (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999) (finding that raced based statement by decision maker shortly before notifying Caucasian plaintiff of her termination was direct evidence of race discrimination); see also Brewer v. New Era, Inc., 564 Fed. Appx. 834, 839 (6th Cir. 2014) (holding that statements made two months before termination decision that plaintiffs were "too old" and "needed to retire" were direct evidence of Title VII age discrimination); Taylor v. Bd. of Educ. of Memphis City Sch., 240 Fed. Appx. 717, 720 (6th Cir. 2007) (determining that statement that individual was hired to maintain racial balancing was direct evidence of discrimination). Direct evidence is "evidence that proves the existence of a fact without requiring any inferences." Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004); see also Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003) (holding that direct evidence of discrimination compels the conclusion that defendant's actions were motivated by racial animus without the factfinder relying on inference); Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1081 (6th Cir. 1994) (finding that proffered evidence was not direct evidence of discrimination because it required jury to infer from the timing of plaintiff's termination that he was terminated because of his age). "Racial slurs or statements that suggest that the decision-maker relied on impermissible stereotypes to assess an employee's ability to perform can constitute direct evidence." Erwin v. Potter, 79 Fed. Appx. 893, 897 (6th Cir. 2003); see also Chattman, 686 F.3d at 346 (holding that three racists statements, including a statement that "America won't allow a nigger
Once plaintiff produces direct evidence of discrimination, the burden shifts to the defendant to prove that it would have terminated the employee, "even if it had not been motivated by impermissible discrimination." Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000); Chattman, 686 F.3d at 349, Gebremicael, 2014 WL 3548972, at *9.
Here, Plaintiff alleges that the racially derogatory comments made by Defendant Mowell throughout Plaintiff's employment, along with Mowell's statement on April 26, constitute direct evidence of racial discrimination. We agree. According to Plaintiff's testimony, Defendant Mowell told "nigger jokes" and made other racially derogatory statements on a daily basis.
Because Plaintiff has provided sufficient direct evidence of Defendants' discriminatory motive, the burden shifts to Defendants to prove that they would have made the same employment decision absent a discriminatory purpose. Nguyen, 229 F.3d at 563; Chattman, 686 F.3d at 349; Gebremicael, 2014 WL 3548972, at *9. Defendants contend that Plaintiff was administratively terminated because he did not return to work after the April 26 incident. (Resp. Add. SOF ¶ 4; Webb Dep. at 18-19.) Defendants acknowledge, however, "that Plaintiff disputes the facts involving his termination, which creates an issue of fact for the jury." (Mowell Reply at 2.) In the alternative, Defendants argue that even if Plaintiff was terminated, his termination was not unlawful. If Plaintiff was terminated, it was for "his prolonged combative and inappropriate behavior display in front of customers throughout the day on April 26, 2014." (Id.) Defendants' second bite at the apple fares no better than their first. Like Defendants' first argument, Plaintiff has presented competent evidence to refute Defendants' assertion that he was terminated for inappropriate behavior in front of customers on April 26. (See generally Pendleton Dep.; Decl. Ritchie ¶ 4 (stating that Defendant Mowell told him Pendleton was fired because of the fight).) We find that a genuine issue of material fact exists as to why (and if) Plaintiff was terminated. Accordingly, summary judgment is improper.
Along with his direct evidence of discrimination, Plaintiff also presents indirect evidence to support his discrimination claim. While we find that Plaintiff's direct evidence is sufficient to defeat summary judgment, in the abundance of caution, we also analyze Plaintiff's indirect evidence.
If plaintiff cannot prove discriminatory animus through the direct method, he may rely on indirect circumstantial evidence "which would support an inference of discrimination." Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997); see alsoKyle-Eiland v. Neff, 408 Fed. Appx. 933, 939 (6th Cir. 2011); Chase v. Clarksville-Montgomery Cty. Sch. Sys., No. 13-C-957, 2015 WL 1279595, at *6 (M.D. Tenn. March 20, 2015). In analyzing a discrimination claim under the indirect method, we apply the burden-shifting framework set forth in McDonnell Douglas, 411 U.S. at 802-05, 93 S. Ct. at 1824-25. Brewer, 564 Fed. Appx. at 840; Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012); Chase, 2015 WL 1279595, at *6. According to McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. Brewer, 564 Fed. Appx. at 840; Blizzard, 698 F.3d at 283; Chase, 2015 WL 127995, at *6. To establish a prima facie case of race discrimination under a disparate treatment theory, plaintiff must show that: (1) he is a member of a protected class, (2) he was qualified for his job and performed it satisfactorily, (3) despite his qualifications and performance, he suffered and adverse employment action, and (4) he was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside his protected class.
It is undisputed that Plaintiff has met the first two prongs of a prima facie discrimination claim; he is an African-American and Defendants do not argue that Plaintiff was not qualified for his job. (See Add. SOF ¶ 3 ("According to Defendants, Mr. Pendleton was a `very, very good salesperson' who did a `very good job' of selling cars at Bob Frensley.").) Additionally, for purposes of this motion, Defendants have conceded that Plaintiff was terminated. (Resp. Add. SOF ¶ 36.) We are left, then, with the fourth prong of a discrimination analysis; did Plaintiff present sufficient evidence that he was replaced by a person outside his protected class or was treated less favorably than a similarly situated individual outside his protected class. Plaintiff does not assert that he was replaced by a person outside his protected. Instead, he argues that he was treated less favorably than a similarly situated Caucasian salesman, Derek Ritchie, when Plaintiff was terminated for the April 26 fight and Ritchie was not. (Resp. at 14.) Plaintiff has presented sufficient evidence to suggest that Ritchie had the same supervisor (Mowell) and was subject to the same conduct standards as Plaintiff. Plaintiff and Ritchie have both testified that Ritchie punched Plaintiff and that Plaintiff did not physically retaliate. (See Ritchie Decl. ¶ 4.) For purposes of this motion, we find that Derek Ritchie was a "similarly situated" employee and was treated more favorably than Plaintiff when he was not terminated or sent home for his participation in the April 26 incident.
Defendants allege that Plaintiff was fired because of his disruptive behavior in front of customers throughout the day on April 26. Because Defendants offer a legitimate reason for termination, the burden shifts back to Plaintiff to show that their proffered reason for termination is pretext for unlawful discrimination. Arendale, 519 F.3d at 603; Clay, 501 F.3d at 703; Ervin, 2013 WL 594747, at *9. We find that Plaintiff has presented sufficient evidence that Defendants' proffered termination rational was pretexual. Ritchie testified that Mowell approached him after the April 26 incident and said that Pendleton was fired because of the fight.
For the reasons stated above, Defendants' motions for summary judgment as to Plaintiff's race discrimination claims are denied.
Along with his claims for race discrimination, Plaintiff also brings claims against both Defendant Bob Frensley and Defendant Mowell for retaliation.
Title VII prohibits an employer from retaliating against an employee who has either: (1) "opposed any practice made an unlawful employment practice by this subchapter," or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To maintain a claim for retaliation, plaintiff must establish: (1) he engaged in protected activity; (2) defendants knew that he engaged in the protected activity; (3) defendants subsequently took an adverse employment action against plaintiff; and (4) the adverse action was causally related to the protected activity. Blizzard, 698 F.3d at 288; Ladd v. Grand Truck Western R.R., Inc., 552 F.3d 495, 502 (6th Cir. 2009); Reed v. Amer. Cellular, Inc., 39 F.Supp.3d 951, 970 (M.D. Tenn. 2014); E.E.O.C. v. Gregg Appliances, Inc., No. 10-861, 2013 WL 3224028, at *4 (M.D. Tenn. June 25, 2013). For a retaliation claim, a plaintiff must show that "the employer would not have taken the adverse employment action but-for the design to retaliate." Univ. of Texas Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2534 (2013). Retaliation claims also follow the McDonnell Douglas burden shifting framework; if plaintiff makes out a prima facie claim of retaliation, defendant then may provide a legitimate reason for termination, which must be rebutted by plaintiff. Blackshear v. Interstate Brands Corps., 495 Fed. Appx. 613, 619 (6th Cir. 2012); Ladd, 552 F.2d at 502; Reed, 39 F. Supp. 3d at 973.
Defendants first allege that Plaintiff has failed to present sufficient evidence that he engaged in protected activity. (Mowell Mem. ISO MSJ at 14.) We disagree. The Sixth Circuit has clearly stated that, "a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII." E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (finding that plaintiff engaged in protected activity when she demanded that her supervisor stop engaging in harassing behavior); see also Nash v. McHugh, No.15-C-93, 2016 WL 204483, at *3 (M.D. Tenn. Jan. 15, 2016) (holding that reporting unlawful actions directly to harassing supervisor constituted protected activity). "The fact that [a complaint] was . . . `informal conversation' does not change the nature and purpose of the conversation, which was a `discrete, identifiable, and purposive' opposition to racially-oriented language." Trujillo v. Henniges Auto. Sealing Sys. N. Amer., Inc., 495 Fed. Appx. 651, 655 (6th Cir. 2012). Here, Plaintiff testified that he complained directly to Mowell, his supervisor, every day, and told both Mowell and Henderson that "the nigger jokes have to stop." (Pendleton Dep. at 107-08.) Accordingly, Plaintiff has satisfied prong one of his retaliation claim.
Defendants next argue that they are entitled to summary judgment on Plaintiff's retaliation claim because Plaintiff has failed to prove causation. (Mowell Mem. ISO MSJ at 18.) Plaintiff alleges that the "very close temporal proximity between his protected activity and the adverse action is alone sufficient to establish causation." (Resp. at 20.) Plaintiff also asserts that he has presented sufficient additional evidence to support an inference of retaliatory motive, such as Defendants' disparate treatment of Plaintiff and other Caucasian salesmen. (Id. at 21.)
This circuit has held that, "temporal proximity, standing alone, is not enough to establish a causal connection for a retaliation claim."
We need not determine whether temporal proximity alone establishes an inference of a causal connection between Plaintiff's protected activity and his termination. Here, Plaintiff presents sufficient evidence in additional to temporal proximity to establish a prima facie case of retaliation. Plaintiff alleges that he complained to Mowell daily, was subjected to constant harassment, and that Ritchie, a similarly situated Caucasian employee, was not terminated for engaging in the same conduct as Plaintiff on April 26. Plaintiff has met his burden of establishing a prima facie case of retaliation. Vereecke, 609 F.3d at 401; Hill, 416 Fed. Appx. at 498; Pearson, 747 F. Supp. 2d at 972.
Because Plaintiff made out a prima facie case under the McDonnell Douglas standard, the burden shifts to Defendants to produce a legitimate reason for Plaintiff's termination. 411 U.S. at 802-05, 93 S. Ct. at 1824-25. Defendants again contend that Plaintiff was terminated for his disruptive behavior throughout April 26. For the purposes of this motion, we assume that Defendants' proffered reason for termination is sufficient under McDonnell Douglas and next consider whether Plaintiff has provided evidence to support a conclusion that Defendants' proffered reason was mere pretext. Like in our previous analysis concerning Plaintiff's race discrimination claim, we find that Plaintiff has produced enough evidence to raise a jury question as to Defendants' motives. First, Ritchie testified that Mowell approached him after the April 26 incident and said that Pendleton was fired because of the fight. (Ritchie Decl. ¶ 4.) Additionally, Plaintiff testified that immediately after the incident, Mowell yelled "Get your black ass out of here. You're fired." (Add. SOF ¶ 35.) Accordingly, Defendants' motions for summary judgment as to Plaintiff's retaliatory discharge claim are denied.
Finally, Plaintiff brings a claim for hostile work environment against Defendant Bob Frensley under Title VII, Section 1981 and the THRA and against Defendant Mowell under Section 1981. (Compl. ¶ 9.) Title VII, Section 1981 and the THRA prohibit discrimination based on race that creates a hostile or abusive work environment. 42 U.S.C. § 2000e-2(a)(1); Long v. Ford Motor Co., 193 Fed. Appx. 497, 501 (6th Cir. 2006); Williams v. Gen. Motors Corp., 187 F.3d 553, 560 (1999); Fite, 686 F. Supp. 2d at 752. Under all three statutes, to support a hostile work environment claim, Plaintiff must show: (1) he was a member of a protected class; (2) he was subjected to unwelcomed harassment; (3) the harassment was based on race; (4) the harassment created a hostile work environment; and (5) defendants are liable. Kuhn v. Washtenaw Cty., 709 F.3d 612, 627 (6th Cir. 2013); Ladd, 552 F.3d at 500; Fite, 686 F. Supp. 2d at 752. To satisfy the fourth prong, plaintiff must show that the alleged conduct was "so objectively severe or pervasive that it created an abusive work environment," Reynolds v. Fed. Exp. Corp., 544 Fed. Appx. 611, 616 (6th Cir. 2013), and that the victim subjectively viewed the environment as severe, Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 371 (1993); Williams v. CSX Transp. Co. Inc., 533 Fed. Appx. 637, 641 (6th Cir. 2013); Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000). "[W]hether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances." Harris, 510 U.S. at 23, 114 S. Ct. at 371. Accordingly, "the totality-of-circumstances must be construed to mean that even where individual instances of [] harassment do not on their own create a hostile work environment, the accumulated effect of such incidents may result in a Title VII violation." Williams, 187 F.3d at 563. This circuit has held that "whether harassment is sufficiently severe or pervasive to establish a hostile work environment is `quintessentially a question of fact.'" Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333 (6th Cir. 2008). As to the final prong, employer liability is established if the alleged harassment was by a supervisor. Johnson v. United Parcel Serv., Inc., 117 Fed. Appx. 444, 453 (6th Cir. 2004); Quanex Corp., 191 F.3d at 664; Hajizadeh v. Vanderbilt Univ., 879 F.Supp.2d 910, 928 (M.D. Tenn. 2012).
Defendants concede that Plaintiff is a member of a protected class, but allege that Plaintiff has failed to meet his burden on the remaining four prongs of his hostile work environment claim. (Frensley Mem. ISO MSJ at 10.) Despite Defendants' contentions, we find that the record presents a fact question as to whether Plaintiff was subjected to unwelcome harassment; whether the harassment was based on race; and whether Defendants are liable. Plaintiff testified that he was subjected to unwanted racial harassment by his supervisor, Mowell.
Lastly, we consider the fourth prong of a hostile work environment analysis: whether Plaintiff has shown that he was subjected to sufficiently severe or pervasive conduct to constitute a hostile work environment. While "mere utterance of an . . . epithet which engenders offensive feelings in an employee," Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 106 S.Ct. 2399, 2405 (1986) (internal citation omitted), is not sufficient to support a claim for a hostile work environment, "Title VII comes into play before the harassing conduct leads to a nervous breakdown," Harris, 510 U.S. at 21, 114 S. Ct. at 370. We consider "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." Harris, 510 U.S. at 23, 114 S. Ct. at 367; Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 635 (6th Cir. 2003); E.E.O.C. v. Finish Line, Inc., 915 F.Supp.2d 904, 915 (M.D. Tenn. 2013). Conduct need not be both severe and pervasive to constitute a hostile environment, but may be either sufficiently severe or sufficiently pervasive. Williams, 533 Fed. Appx. at 641; Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 717 n.2 (6th Cir. 2012) (holding that `severe or pervasive,' not `severe and pervasive' is the appropriate standard) (emphasis in original). "When a plaintiff alleges commonplace, ongoing, and continuous harassment and provides specific examples of that harassment sufficient for a court to judge the objective severity of that harassment, a `[p]laintiff's inability to recount any more specific instances [of discrimination] goes to the weight of [the] testimony, a matter for the finder of facts.'" Armstrong v. Whirlpool Corp., 363 Fed. Appx. 317, 327 (6th Cir. 2010); see also Lyle, 730 F. Supp. 2d at 779 ("Separately, each comment might not be considered to be severe and pervasive since none was threatening and some were directed to others. However, when combined it is clear that sufficient facts have been forwarded which could support a determination that [p]laintiff was subjected to a hostile work environment."); Shannon v. Advance Stores Co., Inc., No. 08-0940, 2009 WL 2767039, at *10 (M.D. Tenn. Aug. 27, 2009) (finding that "continuous verbal abuse" was sufficiently severe and pervasive to survive summary judgment on hostile work environment claim); E.E.O.C. v. Freeman, No. 06-0593, 2009 WL 4975280, at *7 (M.D. Tenn. Dec. 21, 2009) (holding that daily racial harassment by supervisor constituted a hostile work environment). As to the severity of the discriminatory conduct, "the use of the word `nigger,' even taken in isolation, is not a `mere offensive utterance.'" Johnson, 117 Fed. Appx. at 545. Racial slurs used by managers or supervisors are considered particularly severe. Id.
Here, Plaintiff testified that Defendant Mowell, his supervisor, told "nigger jokes," made fun of the way African-Americans spoke, told Plaintiff that "the only thing that niggers could do was wash cars," said that "he had a big dick like a nigger," and informed Plaintiff that he left his previous employer because his supervisor was a "lazy nigger." (Pendleton Dep. at 73, 111-12, 120.) Plaintiff stated that Mowell made racially inappropriate comments every day; that the comments were constant. (Id. at 111.) Plaintiff's testimony, that his supervisor used the word "nigger" and made other racist jokes on a daily basis despite Plaintiff's objections, could support a jury finding that Plaintiff was subjected to a hostile work environment. Berryman, 669 F.3d at 717 fn.2; Armstrong, 363 Fed. Appx. at 327; Johnson, 117 Fed. Appx. at 545; Lyle, 730 F. Supp. 2d at 779; Shannon, 2009 WL 2767039, at *10; Freeman, 2009 WL 4975280, at *7.
Accordingly, summary judgment on Plaintiff's hostile work environment claim is denied.
Lastly, Defendants ask us to dismiss Plaintiff's claim for punitive damages. (Frensley Mem. ISO MSJ at 20-22.) Defendants raise two arguments: (1) punitive damages are not recoverable under the THRA; and (2) because Plaintiff "has pled this matter . . . as a mixed motive case," Plaintiff is not entitled to punitive damages under Title VII or Section 1981. (Id. at 22.) First, in Plaintiff's response, he asserts that he is not seeking punitive damages under the THRA. (See Resp. at 23.) Accordingly, we grant Defendants' motion as to THRA punitive damages. Ayala v. Summit Constructors, Inc., 788 F.Supp.2d 703, 723 (M.D. Tenn. 2011) ("Despite generally being interpreted in the same fashion, Title VII and the THRA differ importantly in that punitive damages are not available under the THRA."). We address whether Plaintiff may proceed with his punitive damages demand under Title VII and Section 1981 below.
The Supreme Court has unequivocally declared that punitive damages are available under Title VII and Section 1981. Kolstad v. Amer. Dental Ass'n, 527 U.S. 526, 529-30, 119 S.Ct. 2118, 2121 (1999). Such damages, though, are limited "to cases in which the employer has engaged in intentional discrimination and has done so `with malice or with reckless indifference to the federally protected rights of an aggrieved individual.'" Id. Kolstad laid out a three-part test for us to employ in determining the applicability of punitive damages in the Title VII context. New Breed Logistics, 783 F.3d at 1072; Fischer v. United Parcels Serv., Inc., 390 Fed. Appx. 465, 473-75 (6th Cir. 2010). First, the plaintiff must "demonstrate that the individuals perpetrating the discrimination acted with malice or reckless disregard toward the plaintiff's federally protected rights." New Breed Logistics, 783 F.3d at 1072; Fischer, 390 Fed. Appx. at 473-75; Gregg Appliances, Inc., 2013 WL 3224032, at *3. An individual recklessly disregards a federally protected right when he acts "in the face of a perceived risk that its actions will violate federal law." Kolstad, 527 U.S. at 534, 119 S. Ct. at 2125; see also New Breed Logistics, 783 F.3d at 1072 (holding that plaintiff presented sufficient evidence to survive summary judgment on punitive damages demand where evidence was presented to show that defendants subjected plaintiffs to harassment and then terminated plaintiffs after they filed complaints); Nijem v. Alsco, Inc., 796 F.Supp.2d 883, 899 (M.D. Tenn. 2011) (denying defendant's motion for summary judgement as to punitive damages where plaintiff established issue of fact that defendant engaged in discriminatory conduct). Second, the plaintiff must impute liability to the employer by establishing that the discriminatory actor worked in a managerial capacity and acted within the scope of his or her employment. New Breed Logistics, 783 F.3d at 1072; Fischer, 390 Fed. Appx. at 473-75; Gregg Appliances, Inc., 2013 WL 3224032, at *3. Third, the defendant may nevertheless avoid punitive damage liability by showing that it engaged in good faith efforts to comply with Title VII. New Breed Logistics, 783 F.3d at 1072; Fischer, 390 Fed. Appx. at 473-75; Gregg Appliances, Inc., 2013 WL 3224032, at *3. However, "the mere existence of a written anti-discrimination policy alone does not shield the company from punitive damages." Tisdale v. Fed. Express Corp., 415 F.3d 516, 532 (6th Cir. 2005). Instead, "the employer must show that it engaged in good faith efforts to implement the policy." Hall v. Consol. Freightways Corp. of Del., 337 F.3d 669, 675 (6th Cir. 2003) (emphasis in original); see also New Breed Logistics, 783 F.3d at 1072 (defendant was not entitled to good faith efforts affirmative defense at summary judgment; defendants took little action to investigate the alleged discrimination); Fischer, 390 Fed. Appx. at 473-75 (holding that promulgating an anti-discrimination policy, training employees in that policy and establishing a complaint system was not enough to defeat a claim for punitive damages at summary judgment where defendants presented no evidence that the policy was effectively implemented).
Defendants did not address the Kolstad three-part test and instead argue that Plaintiff is advancing a mixed-motive case and did not prove discriminatory intent. (Frensley Mem. ISO MSJ at 22.) We disagree. First, in his response to Defendants' motion for summary judgment, Plaintiff explicitly states that he is advancing a single-motive theory, "that Defendants unlawfully discharged him because of his race." (Resp. at 23.) We find that the record supports Plaintiff's assertion. (See generally Pendleton Dep.; Ritchie Decl.)
Even though Defendants present no arguments under Kolstad, we apply the three-part test to Plaintiff's punitive damages claim. As previously addressed, Plaintiff has raised a fact question as to whether Defendant Mowell subjected him to race discrimination. If a jury believes Plaintiff's testimony, it too could find that Defendants acted "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Kolstad, 527 U.S. at 534, 119 S. Ct. at 2124 (internal citation omitted). It is also undisputed that Mowell was Plaintiff's supervisor. (Mowell Dep. at 2, 27.) Lastly, we find that Defendants are not entitled to the good-faith defense. Plaintiff has presented evidence that he reported the discrimination to Defendant Mowell and Henderson, per company policy, and that Mowell and Henderson failed to report Plaintiff's complaints to Webb. Additionally, it is undisputed that Defendants did not investigate Plaintiff's allegations of race discrimination at any time, including after he filed a charge with the E.E.O.C. (Webb Dep. at 59.) Accordingly, we deny Defendants' motions for Plaintiff's claim for punitive damages under Title VII and Section 1981.
For the reasons stated above, we deny Defendants' motions for summary judgment. (Dkt. Nos. 103, 106.) It is so ordered.
See Fed. R. Evid. 801(d)(2).
