UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA YOLANDA DIONNE WADE, Plaintiff, v. AUTOMATION PERSONNEL SERVICES, INC. and TAMMY GROSS, Defendants. ) ) ) ) ) ) ) ) ) ) Case No. 1:12-cv-375 Judge Curtis L. Collier MEMORANDUM Before the Court is a motion for summary judgment filed by Defendants Automation Personnel Services, Inc. (“Automation”) and Tammy Gross (“Gross”) (collectively, “Defendants”) (Court File No. 35). Defendants argue Plaintiff Yolanda Dionne Wade (“Wade”) has not presented sufficient evidence to support any of her employment discrimination claims. Wade responded in opposition to Defendants’ motion (Court File No. 39) and Defendants filed a reply (Court File No. 40). For the following reasons, the Court will GRANT Defendants’ motion (Court File No. 35). In granting Defendant’s motion for summary judgment the Court is applying the law that governs the various causes of action Ms. Wade has filed. From the evidence presented in support of and in opposition to this motion it is readily apparent that Ms. Wade was subjected to gross insensitivity in her work place and the work environment made her very uncomfortable. According to Ms. Wade’s deposition testimony she is a person that has nightly devotionals. The rude, crude and insensitive behavior and remarks of certain personnel in her work place would understandably be considered offensive to a person such as Ms. Wade. However, the law the Court must apply is based upon more than how an individual perceives the work environment. I. FACTUAL BACKGROUND Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 1 of 25 PageID #: 1383 Automation provides temporary staffing for companies across the country, with approximately twenty-five locations nationwide (Court File No. 35-8, Gross Dep., p. 30). Automation also employs permanent, full-time staff of its own at various offices, including its Chattanooga, Tennessee office. Wade was originally hired in a temporary position but was later hired for a full-time staff position in the Chattanooga office (Court File No. 35-6, Wade Dep., pp. 98-99). Gross has worked at Automation’s Chattanooga office since 2011 and served as Wade’s supervisor (Court File No. 35-8, Gross Dep., pp. 29, 103). Wade, Gross, and another woman, Natalie Akins (“Akins”), were the only full-time employees at the Chattanooga office during Wade’s tenure there (Court File No. 35-6, Wade Dep., p. 107). Wade alleges an extensive amount of inappropriate conduct, primarily engaged in by Gross, which created a hostile work environment. In one particular instance, Wade was in pain caused by her bra, which she then removed (Court File No. 38-6, Wade Dep., pp. 130-31). When she returned to her workspace, she told Akins that she had removed her bra (id.). Akins recommended a brand that was more comfortable (id. at p. 138). Gross approached Wade and Akins and asked them what they were talking about. After they told her, she informed them that she did not wear bras or panties, lifted her shirt, and exposed her breasts (id.). Gross claims that she did so to exhibit a “silicone adhesive bra” she wears instead of a bra and that her breasts were not exposed (Court File No. 35-8, Gross Dep., pp. 104-05). Akins recalls at least one breast being exposed (Court File No. 35-7, Akins Dep., p. 40). Following this incident, Gross made many inappropriate comments about bras and panties and the size of Wade’s breasts. Gross would apparently suggest to Wade repeatedly that she not wear bras or panties and would ask whether she was wearing them at the time (Court File No. 38-6, 2 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 2 of 25 PageID #: 1384 Wade Dep., pp. 150-52, 167-68). In the hallway of the office, Gross would comment on Wade’s breasts, calling them “big hoobie boobies” and made motions with her hands (id. at p. 153). Wade alleges that she informed Gross the comments were inappropriate and at one point Gross simply laughed and said, “Honey, that’s just how I am” (id.). Gross claims not to remember these incidents except that she recalls discussing “large hooter baduters” during the initial conversation about bras (Court File No. 35-8, Gross Dep., p. 116). She states that she chose that term as an alternative to “breast” or “boob” and that it was something her family used to say (id.). Wade believes that some of these comments may have been sexually motivated. On one occasion, Gross discussed a lesbian friend with Wade and Akins (Court File No. 38-7, Wade Dep., pp. 153-55); (Court File No. 38-2, Akins Dep., pp. 60-61). According to Wade and Akins, Gross stated that, if she were a lesbian, she would date her lesbian friend. Gross claims the conversation was about whether gay couples should be able to adopt, and she mentioned her friend as an example of an excellent gay parent (Court File No. 40-2, Gross Dep., pp. 119-20). Gross was married to a man for nearly twenty years before she and her husband eventually divorced and is the mother of two children (Court File No. 36-8, Gross Dep., pp. 9-10). Wade also alleges Gross engaged in other instances of inappropriate conduct, including racially insensitive conduct. Both Wade and Akins are African-American women, and Gross gave each a nickname corresponding to African-American female characters in The Help, which is a novel that was adapted into a major motion picture (Court File No. 38-7, Wade Dep., pp. 189-90). Wade and Akins later overheard Gross telling Automation’s Regional Manager, Renee Clark, about the nicknames and Clark audibly laughed in response (id. at pp. 190-91). Wade claims that she did not report the nicknames to Clark because she overheard Clark laughing about it (id.). Additionally, 3 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 3 of 25 PageID #: 1385 Gross would ask to see an “I-9,” which contains photo identification of temporary staff personnel, before placing them on assignment, allegedly to screen them for race (Court File No. 38-4, Clark Dep., p. 58). Gross denigrated Hispanic immigrants in front of Wade, stating “that she hated Mexicans because they had no right to be in the United States” and that they are lazy (Court File No. 38-7, Wade Dep., p. 181). Wade was also particularly concerned with an incident in which Gross brought her gun to work and stated that she “was the B in charge” (id. at p. 194). Additionally, Wade alleges broader racial problems at Automation. Wade claims she and Akins were instructed only to send white women to interviews for one client (Court File No. 38-2, Akins Dep., pp. 76-77).1 Wade also points to a racially charged incident involving one of Automation’s customers, MPW. An MPW employee, Matt Walters, made racially derogatory comments to temporary employees Automation was sending him (id. at pp. 184-86). The AfricanAmerican employees frequently complained about Walters’s behavior and accused him of using racial epithets (id. at 185). At one point, Walters told Akins, “You cannot talk to me like that . . . . Shut up you incompetent little black girl” (Court File No. 38-2, Akins Dep., p. 19). After this incident, Wade was required to deal with MPW, although she requested that she be able to speak with Walters’s subordinate rather than Walters himself (Court File No. 38-7, Wade Dep., pp. 18788). Both Akins and Wade were instructed by their supervisors to disregard employee complaints about Walters and MPW because it was an important client (Court File No. 38-7, Wade Dep., p. 184); (Court File No. 38-2, Akins Dep., pp. 75-76). Finally, on October 18, 2011, Wade spoke to Clark about her problems with Gross. Wade 1 As discussed below, the portion of Akins’s transcript on which Wade relies for this contention does not support Wade’s allegation. 4 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 4 of 25 PageID #: 1386 claims that she told Clark everything that she had experienced on the job and Clark responded that she would discuss the issues with Gross (Court File No. 38-7, Wade Dep., p. 198). The next day, Clark spoke with Wade again and stated that Wade had not been sexually harassed, that people in different cultures befriend each other in different ways, and that Wade was having personality and cultural differences with Gross (id. at p. 199). Rather than being concerned with Gross’s conduct, Clark was concerned that Wade was a bad fit for Automation (id.). Wade was dissatisfied with the conversation and felt that Clark did not address her concerns, particularly because Clark instructed Wade to address the issues with Gross first, although Wade claimed she had on a number of occasions (id. at pp. 199-200). This description of the conversation is largely corroborated by an email sent from Clark to Randy Watts, in which Clark responds to allegations Wade makes in her resignation: I did meet with Yolanda after I Investigated her concerns about Tammy. I found that Tammy was not sexually harassing Yolanda, she was simply having casual conversation with women about undergarments. Yolanda informed me she never addressed her concerns with Tammy. I told her she must communicate her concerns with her manager first to give her an opportunity to resolve them. If it doesn’t get resolved that is when I come in. She then went on to tell me she never told Tammy she was offended by the comments. I told her that I had spoken with Tammy and addressed her concerns, Tammy was unaware that Yolanda felt this way and immediately responded that she would keep conversations with her strictly professional, she in no way wanted to make her feel uncomfortable. I did tell Yolanda that due to the nature of our business, you must have thick skin and not offend easily. I did tell her that this environment might not be the right fit for her. She mentioned to me that she was a Christian woman did not want to hear inappropriate things in her presence and that she also felt offended when hearing that top management are heavy drinkers (no idea where this was coming from). This I felt was a very odd comment. I told her we work hard and play hard. That if she offends easily that maybe the culture of our company wasn’t the right fit for her. (Court File No. 38-3, Watts Dep., Ex. 1). Clark, on the other hand, states that she immediately investigated the I-9 issue, including 5 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 5 of 25 PageID #: 1387 obtaining placement demographics from the corporate office and discussing the issue with Gross (Court File No. 38-4, Clark Dep., p. 60). Clark admonished Gross not to use the I-9s to screen potential staff placements (id.). She also claims that she told Gross that the nicknames based on The Help were inappropriate as was discussion of undergarments (id. at p. 66). After this discussion, Gross discussed with Clark the prospect of firing Wade, ostensibly because the office was not profitable (id. at p. 84). Clark states that she told Gross the office needed to focus on increasing revenue rather than decreasing staff (id.). However, the two also allegedly exchanged emails about it, which Gross carelessly left on the office copier (Court File No. 38-2, Akins Dep., p. 74). Akins found the emails and she claims that Clark told Gross they should “hold off” on terminating Gross and they could “say it’s slow and let her go that way or something” (id.). Akins told Wade about the emails (id.). Wade was subsequently assigned to a different shift, which she alleges was done in retaliation for her complaints. When she was hired, Wade and Akins both worked the 8:00 a.m. to 5:00 p.m. shift (Court File No. 35-6, Wade Dep., pp. 205-06). Automation then decided to stagger their shifts so that one would work from 7:00 a.m. to 4:00 p.m. and the other would work from 9:00 a.m. to 6:00 p.m. (id.). Clark claims this change was meant to keep the Chattanooga office consistent with Automation’s other offices (Court File No. 35-9, Clark Dep., p. 45). Gross was given the discretion to assign the shifts and allowed Akins, who had more seniority, to decide which shift she wanted (Court File No. 35-8, Gross Dep., pp. 132-33); (Court File No. 35-9, Clark Dep., p. 45). Akins chose the earlier shift and Wade was assigned the later shift. This later shift apparently interfered to some degree with Wade’s nightly family devotional, which occurred somewhere between 6:00 and 6:30 p.m. (Court File No. 35-6, Wade Dep., p. 210). Gross claims she 6 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 6 of 25 PageID #: 1388 was not aware of the nightly devotional until the schedules were changed (Court File No. 35-8, Gross Dep., pp. 96), but Akins stated that it was a common topic of conversation prior to that point (Court File No. 38-2, Akins Dep., pp. 108-09). Wade confronted Gross about the shift change but told Gross she would work it (Court File No. 35-8, Gross Dep., p. 102). Eventually, Akins left Automation because her supervisors required that she continue to work with Walters, who had called her an “incompetent little black girl” (Court File No. 38-2, Akins Dep., pp. 79-80). On November 16, 2011, Wade also resigned from her employment at Automation. She subsequently filed a Charge of Discrimination with the Equal Employment Opportunity Commission and filed this suit approximately one year later. II. STANDARD OF REVIEW Summary judgment is proper when “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). The moving party bears the burden of demonstrating no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). The Court views the evidence, including all reasonable inferences, in the light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). However, the non-movant is not entitled to a trial based merely on its allegations; it must submit significant probative evidence to support its claims. See Celotex, 477 U.S. at 324; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Should the non-movant fail to provide evidence to support an essential element of its case, the movant can meet its burden of demonstrating no genuine issue of material fact exists by pointing out such failure to the court. Street v. J.C. Bradford 7 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 7 of 25 PageID #: 1389 & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). At summary judgment, the Court’s role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). If the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, the Court should enter summary judgment. Id. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). III. DISCUSSION Wade brings a number of claims under Title VII and the Tennessee Human Rights Act (“THRA”). She alleges Automation maintained a hostile work environment based on racial harassment, sexual harassment, and religious harassment. She also claims Automation retaliated against her for complaining about this harassment by changing her shift and constructively discharging her. In addition to these claims, she asserts state law claims of retaliatory discharge and intentional infliction of emotional distress. The Court will consider her Title VII and THRA claims and her state law claims separately. A. Title VII and THRA Wade brings claims under both Title VII and the THRA, but “the Tennessee Supreme Court has repeatedly recognized the application of federal law to THRA cases.” Day v. Krystal Co., 471 F. Supp. 2d 874, 883 (E.D. Tenn. 2007) (citing Parker v. Warren County Utility Dist., 2 S.W.3d 170, 172 (Tenn. 1999) (recognizing the Tennessee legislature intended the THRA “to be coextensive with federal law”); Frizzell v. Southwest Motor Freight, 154 F.3d 641, 646 (6th Cir. 1998)). The Court therefore analyzes Wade’s claims “under the relevant federal standards.” Id. 8 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 8 of 25 PageID #: 1390 1. Hostile Work Environment A hostile work environment claim requires an employee to prove (1) she was a member of a protected class; (2) she was subjected to unwelcome sexual, racial, or religious harassment; (3) the harassment complained of was based on her sex, race, or religion; (4) the charged harassment created a hostile work environment; and (5) the employer is liable. Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006); Hafford v. Sedner, 183 F.3d 506, 512 (6th Cir. 1999). Not all objectionable conduct rises to the level of actionable harassment. The conduct must be “severe or pervasive enough to create an objectively hostile or abusive work environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Title VII does not create “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998). The Court examines the totality of the circumstances to determine whether an environment is hostile or abusive. Factors include “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. Not only must the conduct be objectively hostile or abusive, the victim must “subjectively perceive the environment to be abusive.” Id. at 21. a. Sexual Harassment Wade alleges that she suffered a hostile work environment due to Gross’s conduct, including the exposure of Gross’s breasts, discussion of undergarments, and discussion of Wade’s breasts. A Title VII plaintiff may pursue a hostile work environment claim when the alleged harasser is a member of the same sex. Oncale, 523 U.S. at 80. To make this showing, however, a plaintiff must offer “(1) ‘credible evidence that the harasser was homosexual,’ (2) evidence that ‘make[s] it clear 9 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 9 of 25 PageID #: 1391 that the harasser is motivated by general hostility to the presence of [the same sex] in the workplace,’ or (3) ‘comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.’” Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 467-68 (6th Cir. 2012) (quoting Oncale, 523 U.S. at 80). “Regardless of which of these three circumstances applies, the plaintiff must always prove that the conduct was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimination . . . because of sex.’” Ellsworth v. Pot Luck Enters., Inc., 624 F. Supp. 2d 868, 876 (M.D. Tenn. 2009) (quoting Oncale, 523 U.S. at 80-81). Wade argues she has presented the first two types of evidence: Gross may have been a homosexual and there is evidence that she was hostile to the presence of women in the workplace.2 With regard to the first showing, the Oncale Court did not determine what is required to establish “credible” evidence that the harasser is a homosexual. See La Day v. Catalyst Tech., Inc., 302 F.3d 474, 478 (5th Cir. 2002) (“The Oncale Court gave no guidance on this point: ‘The Court’s focus [in Oncale] was on what the plaintiff must ultimately prove rather than the methods of doing so.’”) (quoting Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999)). The circuits are split on the extent to which the “credible evidence” must demonstrate that the harasser was homosexual, motivated by a sexual desire, or both. See Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1264 (10th Cir. 2005) (discussing the split and concluding that a plaintiff must present evidence demonstrating the harasser’s conduct was motivated by a sexual desire). The courts that have considered what type of evidence is necessary to make this showing typically look for “(1) evidence that the harasser ‘intended to have some kind of sexual contact with the plaintiff rather than 2 Automation’s Chattanooga office “was not a mixed-sex workplace, so there is no possibility of comparative evidence.” Wasek, 682 F.3d at 468. 10 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 10 of 25 PageID #: 1392 to merely humiliate him for reasons unrelated to sexual interest’, or (2) evidence that the harasser ‘made same-sex sexual advances to others, especially to other employees.’” See Cherry v. Shaw Coastal, Inc. 668 F.3d 182, 188 (5th Cir. 2012); see also Dick, 397 F.3d at 1264 (describing the Fifth Circuit’s standard as a “blend” of the two approaches but holding that same-sex harassment “hinges on” whether the harasser is motivated by sexual desire) (citing La Day, 302 F.3d at 478). The only evidence supporting Wade’s theory that Gross is homosexual is that she spoke fondly of her lesbian friend, and “she would often say but I’m not a lesbian but if I was, that would be her choice [to date her lesbian friend]” (Court File No. 38-7, Wade Dep., p. 155) (emphasis added). Akins corroborated that Gross said her friend “was attractive and if she was a lesbian she’d date her” (Court File No. 38-2, Akins Dep., p. 60) (emphasis added). Thus in the only instance in which Gross’s sexual orientation was mentioned, she said affirmatively that she was not a lesbian. This is hardly credible evidence that Gross is a lesbian, especially since Gross is the mother of two children and was married to a man for nearly twenty years. See Lavack v. Owen’s World Wide Enterprise Network, Inc., 409 F. Supp. 2d 848, 855 (E.D. Mich. 2005) (considering the fact that “Defendant Spilotros has been married for 22 years and has four children” as evidence that the harasser was not a homosexual). Additionally, Wade urges the Court to conclude that the discussion of undergarments and the exposure of Gross’s breasts, as well as the alleged hallway comments and gestures regarding Wade’s breasts, constitute credible evidence that Gross is a homosexual or was motivated by sexual desire. Gross never propositioned Wade for sex, never told her she would like to have sex with her, and never described same-sex sexual activity with her (Court File No. 38-7, Wade Dep., pp. 154-55). Gross never indicated that she found Wade attractive and never touched her. At worst, Gross 11 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 11 of 25 PageID #: 1393 exposed her breasts in a discussion about bras, continued discussing them on other instances in spite of the fact that it made Wade uncomfortable, and mentioned Wade’s breasts in passing. Infrequent comments about Wade’s breasts, sensitive as the topic may be, is simply insufficient to suggest that Gross was motivated by sexual desire. See English v. Pohanka of Chantilly, Inc., 190 F. Supp. 2d 833, 845-46 (E.D. Va. 2002) (concluding that sexual comments and occasional touching were “teasing and horseplay” rather than indicative of sexual attraction). Gross’s conduct and statements were inappropriate, to be sure, and Wade was justifiably made uncomfortable by them. However, Title VII is not a means of eradicating every awkward comment from the workplace. “Not every instance of sexual harassment, no matter how crude or vulgar, automatically amounts to discrimination based on sex.” Lavack, 409 F. Supp. 2d at 854. Because Wade has failed to present evidence suggesting Gross was homosexual or acted out of sexual desire, this harassment is simply not the type targeted by Title VII. The Court also finds no support in the record for Wade’s suggestion that Gross was generally hostile toward women in the workplace. The only support Wade provides for this argument is that Gross brought her firearm to work and once stated that she was the “b—h in charge.” The Court fails to see how this isolated incident could demonstrate that Gross was hostile toward women in the workplace. Nor does Wade explain its relevance, other than the fact that Gross referred to herself as a “bitch,” which can be a gender-specific pejorative. Even if the Court were to conclude that this evidence suggested some sexual or genderspecific motive on Gross’s part, isolated remarks regarding Wade’s body are insufficiently severe or pervasive to constitute actionable sexual harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“[S]poradic use of abusive language, gender-related jokes, and occasional 12 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 12 of 25 PageID #: 1394 teasing” are “the ordinary tribulations of the workplace,” and as such they do not amount to actionable harassment.); see also Martires v. Conn. Dep’t of Transp., 596 F. Supp. 2d 425, 442-43 (D. Conn. 2009) (concluding that a sexual proposition, two incidents of “intentional bumping,” occasional incidents of rubbing up against the plaintiff while walking, occasional greetings, and generally poor working conditions were not severe or pervasive enough). The bra incident, and the subsequent offhand comments about Wade’s breasts, would not unreasonably interfere with Wade’s work performance or create an intolerable work environment. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (“[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) do not create that unreasonable interference”); Grace v. USCAR, 521 F.3d 655, 679 (6th Cir. 2008) (“[O]ccasional comments, which may have been ‘offensive utterances,’ do not rise to the level required by the Supreme Court’s definition of a hostile work environment in Harris (i.e. ‘physically threatening or humiliating’).”). Accordingly, the Court concludes that Wade has not demonstrated that she suffered such severe or pervasive sexual harassment that Automation’s Chattanooga office amounted to a hostile work environment. b. Racial Harassment Moreover, the alleged racial harassment is similarly not severe or pervasive enough to constitute a hostile work environment. Essentially the only racially charged comments made by an employee of Automation was Gross’s assigning of nicknames based on The Help to Wade and Akins and Gross’s comments about Hispanics. Courts have found far more egregious conduct insufficiently severe or pervasive. Compare Williams v. CSX Transp. Co., 643 F.3d 502, 513 (6th Cir. 2011) (describing statements such as calling “Jesse Jackson and Al Sharpton ‘monkeys’ and 13 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 13 of 25 PageID #: 1395 saying that black people should ‘go back to where [they] came from” as “insensitive, ignorant, and bigoted” but more closely resembling “mere offensive utterances” than severe or pervasive) and Sweezer v. Mich. Dep’t of Corrs., No. 99-1644, 2000 WL 1175644, at *6-7 (6th Cir. Aug. 11, 2000) (holding no racially hostile work environment despite egregious discriminatory comments, vandalism of the plaintiff’s personal property, physical threats, and derogatory mail); with Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999) (finding hostile work environment where Plaintiff alleged fifteen separate allegations of harassment over a period of a year, denial of overtime, at least one incident of physical contact, and exclusion of the plaintiff from areas of the workplace). With respect to Matt Walters’s comments, Wade is correct that “[c]omments and conduct need not be directed at the plaintiff to be sufficiently severe or pervasive to constitute a hostile environment.” Williams v. CSX Transp. Co., Inc., 533 F. App’x 637, 641 (6th Cir. 2013). “However, where the court finds that comments were not directed at the plaintiff, it weighs against a finding of an objectively hostile environment.” Id. None of the disputed comments by Walters were directed at Wade. Although this is not an absolute necessity, the fact that Wade was never on the receiving end of one of these comments weighs against a finding of an objectively hostile environment. Wade also alleges Automation instructed her and Akins to send only white female applicants to one customer. However, the portion of Akins’s deposition on which Wade relies for this factual allegation does not support her contention: COUNSEL: Were you ever told that one customer wanted only wanted young white females to interview? AKINS: Yes. I think that was a - - I do. I can’t remember that company’s name. I think that company did a little sneak attack. We set up some interviews for them and they end up using - - they probably took 14 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 14 of 25 PageID #: 1396 somebody that we set-up the interview and didn’t even come through us like the agreement was. (Court File No. 38-2, Akins Dep., pp. 76-77). Contrary to how Wade describes this testimony, Akins never stated she was told only to send white females to a customer. She was told a customer only wanted white females. Moreover, her testimony suggests the company did a “sneak attack” to get the employees they wanted, not that Automation directed her to provide white female applicants. Further, nowhere does Akins’s testimony suggest Wade had any involvement with this customer. Finally, Wade argues Gross calling herself the “b—h in charge” should be evidence of racial animus. Wade notes that “even though a certain action may not have been specifically racial in nature, it may contribute to the plaintiff’s proof of a hostile work environment if it would not have occurred but for the fact that the plaintiff was African American.” Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir. 1999). In this context, however, Wade has not presented enough evidence to establish that Automation’s Chattanooga office was a racially hostile work environment. Thus this additional, (admittedly) non-racial incident does not transform a non-hostile environment into a hostile one. Accordingly, the Court concludes that Wade has offered insufficient evidence of racial harassment to establish her hostile work environment claim. c. Religious Harassment Although Wade also alleges she received religious harassment, she has offered essentially no evidence of such harassment. She suggests that Gross knew Wade was religious and “targeted” her with discussions of drinking and with her sexual harassment. The final straw, Wade argues, was the interference her schedule had with her nightly devotional. Wade has offered no evidence and does not cite to anything in support of her allegation that 15 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 15 of 25 PageID #: 1397 Gross “targeted” her with offensive conduct. To allow such a baseless accusation to support a Title VII claim would essentially do away with the requirement that a work environment be both subjectively and objectively hostile or abusive. Plaintiffs with particular religious proclivities and sensitivities would be able to argue that, because their coworkers knew they were sensitive, any topic of discussion of which they disapprove renders the workplace hostile. Title VII is not designed to be such an expansive tool of ensuring workplace civility. See Oncale, 523 U.S. at 80 (holding that Title VII is not “a general civility code for the American workplace”). Nor does a shift change that moderately inconveniences a personal religious practice constitute harassment. Thus the Court concludes that Wade has also failed to offer sufficient (if any) evidence of religious harassment to establish her hostile work environment claim. d. Totality of the Circumstances Although the Court concludes that each type of harassment alone is insufficient to constitute a hostile work environment, Wade argues that the Court must consider Wade’s allegations of harassment cumulatively rather than individually.3 The Sixth Circuit has indicated that district courts should, in some circumstances, consider evidence of hostility for multiple characteristics cumulatively when determining whether an employee suffered pervasive harassment. The theory of a hostile-environment claim is that the cumulative effect of ongoing harassment is abusive. It would not be right to require a judgment against Hafford if the sum of all of the harassment he experienced was abusive, but the incidents could be separated into several categories, with no one category containing enough incidents to amount to “pervasive” harassment. Although there is enough evidence of racial harassment for that claim to stand on its own, the district court should allow 3 Wade points to Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999), which only deals with one protected characteristic and does not support this proposition. However, the essence of Wade’s argument—that each individual type of harassment should not be considered in isolation—is well taken. 16 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 16 of 25 PageID #: 1398 at trial for consideration of the possibility that the racial animus of Hafford’s co-workers was augmented by their bias against his religion. Hafford, 183 F.3d at 514-15 (citing Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-17 (10th Cir. 1987)). Protected “characteristics do not exist in isolation. African American women are subjected to unique stereotypes that neither African American men nor white women must endure.” Shazor v. Prof’l Transit Mgmt., Ltd., 744 F.3d 948, 958 (6th Cir. 2014). “Title VII does not permit plaintiffs to fall between two stools when their claim rests on multiple protected grounds.” Id. However, even cumulatively the evidence in this case does not rise to the level of severe or pervasive harassment that implicates a protected characteristic. There is no link, as there was in Hafford, that connects one category of harassment in this case to the others. See Hafford, 183 F.3d at 514 (“In at least one instance—Captain Darling’s comment—the link between the racial and religious bias was explicit.”). Moreover, in this type of case, sufficient evidence often supports at least one of the alleged characteristics. See Shazor, 744 F.3d at 958 (allowing a sex discrimination claim to proceed where the plaintiff established a prima facie case of race discrimination); Hafford, 183 F.3d at 514. But see Hicks, 833 F.2d at 1416-17. And there is nothing suggesting that the alleged types of harassment are related, that is, that Gross’s harassment was focused on Wade being a religious African-American woman. Regardless, the various incidents, even taken together, still are not so severe or pervasive that Wade was exposed to a hostile work environment. The Court thus concludes that Wade has not presented enough evidence to meet her burden of demonstrating that she was exposed to an objectively hostile work environment. The Court will therefore GRANT Defendants’ motion on this ground. Because the Court concludes Wade did not suffer a hostile work environment, Gross could not have “aided and abetted” that hostile work environment for the purposes of THRA individual 17 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 17 of 25 PageID #: 1399 liability. See Tenn. Code Ann. § 4-21-301(2) (making it a discriminatory practice to “[a]id, abet, incite, compel or command a person to engage in any of the acts or practices declared discriminatory” by the THRA).4 Accordingly, the Court will GRANT Defendants’ motion on Wade’s claims against Gross as an individual as well. 2. Retaliation In addition to the hostile work environment claims, Wade argues her shift was changed in retaliation for complaining about Gross’s comments. A plaintiff complaining of retaliatory discharge must first prove a prima facie case by preponderance of the evidence. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981); see also Johnson v. U.S. Dep’t of Health & Human Servs., 30 F.3d 45, 47 (6th Cir. 1994). To establish a prima facie retaliation case, a plaintiff must prove (1) she engaged in activity protected by [civil rights statutes]; (2) this exercise of protected rights was known to defendant; (3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000) (emphasis omitted) (citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990)). Defendants argue that Wade has not established a prima facie case of retaliation because the shift change does not constitute an “adverse employment action.” Wade, for her part, describes the shift change as an “undesirable reassignment.” See Faragher, 524 U.S. at 808. 4 This section was recently amended by the Tennessee General Assembly to provide that “[n]o individual employee or agent of an employer shall be liable for any violation of part 4 of this chapter that any employer shall be found to have committed.” 2014 Tenn. Legis. Serv. 995 (West). However, the “act shall take effect July 1, 2014, the public welfare requiring it, and shall apply to all actions accruing on or after the effective date of this act.” Accordingly, the amendment has no effect on this case. 18 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 18 of 25 PageID #: 1400 The Court agrees with Defendants. An adverse employment action is “a materially adverse change in the terms and conditions of [a plaintiff’s] employment.” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 797 (6th Cir. 2004). A “mere inconvenience or an alteration of job responsibilities” is not an adverse employment action. Id. Rather, an adverse employment action should involve a “significant change in employment status” such as “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” Id. at 798. That being said, “[a]n ‘inconvenience resulting from a less favorable schedule can render an employment action ‘adverse’ even if the employee’s responsibilities and wages are left unchanged.’” Spees v. James Marine, Inc., 617 F.3d 380, 392 (6th Cir. 2010) (quoting Ginger v. District of Columbia, 527 F.3d 1340, 1344 (D.C. Cir. 2008)). In Spees, the plaintiff was transferred from the day shift to the night shift. In addition to a changed shift, the new position could be seen as a demotion because it did not require the kind of training or skills her previous position required and the plaintiff found it “more boring” than her previous position. Id. Moreover, the night shift made it difficult for the plaintiff, a single mother, to raise her daughter. These factors, viewed “collectively,” created a question of fact regarding whether the transfer and shift change constituted an adverse employment action. In this case, on the other hand, Wade was only required to start and leave an hour later every day. The Sixth Circuit has previously held that a shift change of one hour, and the denial of the plaintiff’s request to work through lunch rather than leave one hour later, was not an adverse employment action. Regan v. Faurecia Auto. Seating, Inc., 679 F.3d 475, 481 (6th Cir. 2012). Further, Wade’s responsibilities, pay, and other aspects of her employment remained the same. The 19 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 19 of 25 PageID #: 1401 only inconvenience Wade can muster on summary judgment is that the later shift conflicted with her nightly family devotionals. She also admits, however, that she never missed a single family devotional during her tenure with Automation. Wade has failed to demonstrate that the shift change was an adverse employment action. See Chambers v. Pitt Ohio Exp., LLC, No. 1:11 CV 1337, 2012 WL 1029424, at *6 (N.D. Ohio Mar. 23, 2012) (distinguishing Spees where the plaintiff “simply indicate[d] that the change ‘interfered’ with his ability to be home in the evenings”). Wade also argues that she was constructively discharged. “To demonstrate constructive discharge, a plaintiff must adduce evidence to show that (1) the employer deliberately created intolerable working conditions, as perceived by a reasonable person, (2) the employer did so with the intention of forcing the employee to quit, and (3) the employee actually quit.” Regan, 679 F.3d at 481 (quoting Savage v. Gee, 665 F.3d 732, 739 (6th Cir. 2012)). Courts consider both the employer’s intent as well as the employee’s subjective feelings. With regard to the first prong, courts consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a [male] supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee’s former status. Id. at 482 (quoting Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 451 (6th Cir. 2005)). In addition to the shift change, Wade alleges that Gross would stare at her through the window in her office when Wade was making copies (Court File No. 38-7, Wade Dep., pp. 212-13). She also alleges that on several occasions Gross left the alarm off when she left, failed to lock the back door, and on two occasions left the back door open (id. at pp. 213-14). 20 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 20 of 25 PageID #: 1402 The Court concludes this is insufficient to establish that the employer deliberately created intolerable working conditions. First, the one-hour shift change, as the Sixth Circuit has concluded, is insufficient to establish an “intolerable” working condition. Regan, 679 F.3d at 482 (“The new work schedule requires Regan and others in her department to work the exact same number of hours as the previous schedule; the only change is that the schedule has been shifted one hour later. . . . A reasonable person would not find that the new work hours instituted by Faurecia were intolerable.”). Second, the Court fails to see how the allegations Gross left the alarm off or the back door open could create “intolerable” working conditions. In fact, this only occurred when Gross came to the office after Wade and Akins left, and it was Akins who discovered it in the morning. COUNSEL: WADE: COUNSEL: WADE: COUNSEL: WADE: COUNSEL: WADE: COUNSEL: WADE: You mentioned that Ms. Gross began to leave the alarm of the building off when she left and left the back door unlocked and on two occasions left it wide open. How many times did she leave the alarm of the building off? The alarm was left off on several occasions, more than what I can count. What was the standard prior to this you said she began. At some point I guess the alarm wasn’t off. What was the standard procedure, was the alarm activated all throughout the day or did it get activated at a certain time? Whoever left you were responsible for alarming the alarm. Whoever left last? Yes. The alarm started being left unarmed and then we started leaving lights on because the alarm was being left unarmed. Ms. Akins was the first in in the morning so she would call and ask me did you leave the alarm – the alarm was left unarmed and I can’t tell you how often that happened because I wasn’t the one to open up in the morning. She was on the morning shift. So the complaint is when you would come in in the morning the alarm had not been activated for the previous evening? Ms. Akins. But the door started being left open when she would leave, the back door, she -- Tammy Gross parked in the back. What hours did Ms. Gross typically work? She did sales. She was in management so she was in and out. 21 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 21 of 25 PageID #: 1403 COUNSEL: WADE: COUNSEL: WADE: COUNSEL: WADE: COUNSEL: WADE: COUNSEL: WADE: But on days when she was in the office past when you left, do you know what time she left or did she leave before you when you were working until 6? Sometimes she would just come and go. On times when she left before you did, wouldn’t it have been up to you to activate the alarm before you left since you were the last one leaving? But she would come back sometimes. I always armed the alarm. Why do you think -- first of all, you know that it was Ms . Gross who was doing this. Because me and Natalie came up with a system to make sure that I was setting the alarm and she would call in the morning. I made it a point to start leaving lights on and that’s how we got to this e-mail and I guess we’ll eventually get to the e-mail of not leaving lights on anymore but I started leaving lights on at night because this issue of this alarm not being set. So Natalie and I, since the alarm was not being set at night, it was obvious that she was coming back during the night hours after I was gone for the evening sometime. So when I would leave at night I would set the alarm and I would call Ms. Akins and let her know the alarm is set. So when you go in in the morning if it is unarmed, check the back door. So what she started doing was driving around to make sure before she came in the front door because it was dark I think when -I’m not sure if it was dark when yeah, it was dark, that’s why I was leaving on lights. When she entered in the morning, before she entered, to make sure that the back door was locked because sometimes the back door was left open and security in the office complex had called Natalie because Natalie had the office phone so inform her on an occasion that the back door was left wide open one night and that it was just open one night. So the back door was unlocked and it was open. So it started being dangerous. And you believe that Ms. Gross was doing this at a work site that she manages to intentionally pose danger? It was dangerous for me. Why she was doing it, it just -- it didn’t start happening until after this late schedule. But is it part of your complaint because you believe after you complained that Ms. Gross was upset about that and she wanted to expose you to danger? I believe it was to scare me. I think it was intentionally done. (Court File No. 38-7, Wade Dep., pp. 214-17). According to Wade’s own testimony, the alarm was 22 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 22 of 25 PageID #: 1404 turned off after she left and it was Akins who arrived to a possibly dangerous office. The Court fails to see how this could make the work environment intolerable for Wade.5 Nor does her allegation that Gross “stared” at her rise to the level of “badgering, harassment, or humiliation.” Regan, 679 F.3d at 482; see also Roby v. CWI, Inc., 579 F.3d 779, 785 (7th Cir. 2009) (concluding that the plaintiff had offered insufficient evidence of constructive discharge because “[a]t best, Roby can merely point to her own testimony that Schiavone would stare and glare at her and her subjective belief that he wanted ‘to get her’”). The Court thus concludes Wade has not demonstrated that she suffered retaliation for her complaints. The Court will GRANT Defendants’ motion on this ground. B. State Claims Wade also brings state claims of retaliatory discharge and intentional infliction of emotional distress.6 1. Retaliatory Discharge Wade asserts a common law retaliatory discharge claim for the reasons stated above regarding her Title VII retaliation claim. To state a claim for retaliatory discharge pursuant to Tennessee common law, a plaintiff must show: (1) that an employment-at-will relationship existed; (2) that he was discharged; (3) that the reason for his discharge was that he attempted to exercise a statutory or 5 Wade also notes that Akins discovered emails from Gross to Clark seeking leave to fire Wade. This was corroborated by Clark, who stated that she and Gross were concerned that the office was not profitable. But Clark instructed Gross to focus on increasing revenue and Automation decided not to terminate Wade. Moreover, this is not evidence that Automation deliberately created intolerable working conditions, especially in light of Automation’s decision not to terminate Wade. 6 Although typically the Court would dismiss without prejudice state claims after resolving all federal claims, there is complete diversity among the parties in this case. 23 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 23 of 25 PageID #: 1405 constitutional right, or for any other reason which violates a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision; and (4) that a substantial factor in the employer’s decision to discharge him was his exercise of protected rights or his compliance with clear public policy. Franklin v. Swift Transp. Co., 210 S.W.3d 521, 528 (Tenn Ct. App. 2006). Wade again argues she was constructively discharged. In Tennessee, an employee is constructively discharged if “the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 34 (Tenn. 1996). “[I]n the context of a hostile work environment claim, that standard requires a plaintiff claiming constructive discharge to demonstrate that the harassment is so severe or pervasive that work conditions were intolerable, a showing greater than the minimum required to prove a hostile work environment.” Id. For the reasons stated above, Wade has not presented sufficient evidence to demonstrate that her working conditions were intolerable. Accordingly, the Court will GRANT Defendants’ motion on this claim. 2. Intentional Infliction of Emotional Distress In order to prove intentional infliction of emotional distress in Tennessee, a plaintiff must show all of the following elements: “(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 complained of must result in serious mental injury.” Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). The Court cannot accept a plaintiff’s conclusory allegations, but must determine for itself whether conduct is actionably outrageous, or merely “insults, indignities, threats, annoyances, petty oppression, or other trivialities.” Swallows v. Western Elec. Co., 543 S.W.2d 581, 582-83 (Tenn. 1976) (quotation omitted). Liability attaches only to conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, 24 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 24 of 25 PageID #: 1406 and utterly intolerable in a civilized community.” Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn. 1999) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). Wade alleges Defendants are liable for intentional infliction of emotional distress because Gross “systematically and purposefully torment[ed]” Wade knowing of her “dire financial predicament, of her husband’s potentially fatal pulmonary disease, and of her religious beliefs.” Additionally, Wade again points to Gross stating that she is “the b—h in charge.” Wade also points to the alleged retaliatory harassment detailed above. Considering all these allegations, the Court concludes this is simply not the type of conduct that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.” Miller, 8 S.W.3d at 614. Accordingly, the Court will GRANT Defendants’ motion on this ground. IV. CONCLUSION For the foregoing reasons, the Court will GRANT Defendants’ motion for summary judgment (Court File No. 35). An order shall enter. /s/ CURTIS L. COLLIER UNITED STATES DISTRICT JUDGE 25 Case 1:12-cv-00375-CLC-WBC Document 42 Filed 07/07/14 Page 25 of 25 PageID #: 1407