Womack v. Brown-Forman Corp et al, No. 4:2010cv00044 - Document 78 (E.D. Tenn. 2012)
Court Description: ORDER granting in part and denying in part 37 Motion for Summary Judgment; granting in part and denying in part 44 Motion for Summary Judgment; denying as premature Motions in Limines; 58 60 62 64 66 70 75 . Order granting 31 . Signed by District Judge Harry S Mattice, Jr on 9/25/2012. (SAC, ) Modified on 9/25/2012, to update and term 31 regenerated NEF to parties. (SAC, ).
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Womack v. Brown-Forman Corp et al Doc. 78 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at WINCHESTER MARY ANN WOMACK, Plaintiff, v. BROWN-FORMAN CORPORATION and STEVEN GOODNER, Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 4:10 -cv-44 J udge Mattice MEMORAN D U M AN D ORD ER Before the Court are Defendant Brown-Form an Corporation’s (“BFC”) Motion for Leave to File Excess Pages (Doc. 31), Defendants’ Motions for Sum m ary J udgm ent (Docs. 37, 44), and Motions in Lim ine filed by both parties (Docs. 58, 60 , 62, 64, 66, 70 , 75). BFC’s Motion for Leave to File Excess Pages (Doc. 31) is GRAN TED . The Court has considered Defendants’ Motions for Sum m ary J udgm ent, as well as Plaintiff’s Response (Doc. 55) and Defendants’ Reply (Doc. 56), as well as the accom panying evidence. For the reasons discussed herein, the Court will GRAN T IN PART AN D D EN Y IN PART Defendants’ Motions for Sum m ary J udgm ent. The Court will also D EN Y AS PREMATU RE the parties’ Motions in Lim ine. I. BACKGROU N D For the purposes of sum m ary judgm ent, the Court will view the facts in the light m ost favorable to Plaintiff. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In 1975, at the age of 19, Plaintiff began working for BFC at the J ack Daniel’s Distillery (“J DD”). (Doc. 77 at 3-4). Plaintiff was originally hired as a clerk typist, but Dockets.Justia.com over a num ber of years, she was prom oted to various salaried positions at J DD. (Id.). Plaintiff’s husband, Mike, also worked at J DD for m any of years, where he held several positions, his last as the general services m anager. (Id. at 4-5). In 1990 , Plaintiff was prom oted to the position of buyer, where her duties included buying janitorial, lab, m aintenance, repair, and operating supplies. (Id. at 4). In 1994, Plaintiff was prom oted to the position of senior buyer. (Id.). Plaintiff’s duties as senior buyer included purchasing sim ilar supplies as those that she was responsible for in her prior position, but she was also responsible for buying certain production supplies, including glass and labels. (Id.). At the tim e Plaintiff was prom oted to senior buyer, there was one other senior buyer at J DD, J ohn Hale. (Id. at 7). Hale began working at J DD in 1971, four years before Plaintiff began work at J DD. (Doc. 38-2 at 3). Hale was prom oted to buyer in 1981, nine years before Plaintiff’s prom otion to buyer, and he was m oved to the position of senior buyer in 1990 , approxim ately four years prior to Plaintiff’s prom otion to that position. (Id. at 3; Doc. 40 at 1; Doc. 77 at 8). Plaintiff’s understanding was that her job duties were “basically the sam e” as Hale’s; Plaintiff and Hale both handled capital item s and repeat buys, but the two handled different com m odities. (Doc. 77 at 7-8). Plaintiff also indicated that Hale handled the requisitions and purchase orders for construction projects. (Id. at 8). According to Plaintiff, around the tim e that she was prom oted, she and Hale were each advised of the need to obtain both a college degree and a specialized purchasing certification. (Id. at 3). However, the J DD position description for “senior buyer” indicates that candidates “m ust” have a “Bachelor’s Degree com bined with 4 – 6 years of experience in purchasing, m aintenance, repair, and operating supplies; o r 10 12 years of related equivalent experience,” and that the specialized certification was a 2 “preferred” qualification. (Doc. 52-2 at 2) (em phasis added). In the m id-1990 ’s, Plaintiff obtained both her college degree and the purchasing certification, but Hale did not obtain either. (Doc. 77-2 at 10 ). As a senior buyer, Plaintiff reported directly to the Strategic Sourcing Manager; in 20 0 3, Steve May took over that position, becom ing Plaintiff’s new supervisor. (Doc. 383 at 14; Doc. 77 at 4). According to May, after he was hired, he discovered that Plaintiff “was not perform ing her duties satisfactorily, and . . . had not been doing so for quite som e tim e.” (Doc. 41 at 1). May stated that Plaintiff “appeared to be treating her job as if it was sim ply a m atter of com pleting an adm inistrative task.” (Id.). According to May, he received com plaints that Plaintiff was “rude and abrasive,” non-responsive, and would order item s that she wanted to order, rather than the item s requisitioned by her custom ers. (Id.). Plaintiff concedes that she was counseled by May during that tim e regarding a “change in POs or vendors.” (Doc. 77-1 at 6). In J une 20 0 3, Plaintiff’s “Perform ance Partnership,” J DD’s annual performance review m odel, was subm itted. (Doc. 38-2 at 132). While m uch of Plaintiff’s feedback was positive, she was given a rating of “Achieves Most” and was advised that she needed to work on her professional relationships and m anner of com m unications. (Id. at 13248). May com m ented that, Mary Ann is lacking in her ability to properly com m unicate with her custom er base. This was an issue last year and she was provided resources to help her in this area. There has been a sm all im provem ent since then but there has been continued feedback indicating that she still needs further im provem ent in this area. Mary Ann needs to continue to focus on interpersonal skills and overall ability to build strong relationships with her peer groups and custom ers. (Id. at 136). 3 As a result of this evaluation, Plaintiff was placed on a Performance Im provem ent Plan (“PIP”). (Doc. 41 at 2). May spent approxim ately 25 percent of his tim e working with Plaintiff to im prove her perform ance. (Id.). According to May, Plaintiff’s perform ance did, in fact, im prove “[w]ith this constant reinforcem ent.” (Id.). In October 20 0 4, Plaintiff’s husband was diagnosed with cancer. (Doc. 77 at 2, 5). Mike continued to work at J DD, but he applied for and was approved for interm ittent leave under the Fam ily Medical Leave Act (“FMLA”). (Id. at 5). Plaintiff began taking som e tim e off from work to care for her husband. (Id. at 5-6). According to Plaintiff, she “usually worked around the hours to m ake them up;” otherwise, she used vacation tim e to cover the tim es that she needed to be out for m ore than fifteen m inutes. (Id. at 6-8). Although Plaintiff stated that she and Hale would generally “fill[] in for each other in absences,” she stated that Hale did not cover her work for her while she was out unless it was an em ergency. (Id. at 7; Doc. 77-2 at 11-12). Instead, she would com e back and try to “catch up” herself. (Doc. 77-2 at 11-12). Plaintiff concedes that she was never denied tim e off to care for her husband or expressly disciplined for doing so, nor did she lose any com pensation for taking such tim e. (Doc. 77 at 9). May, who was Plaintiff’s supervisor at the tim e her husband becam e ill, was supportive of her need to be away from the office and did not m ake any negative com m ents about her absences. (Id. at 8-9). In 20 0 6, Tom Neiheisel took over for May as Strategic Sourcing Manager. (Doc. 38-4 at 2). In 20 0 7, Plaintiff’s husband began chem otherapy, and Plaintiff began taking off approxim ately two to six hours of work every one to two weeks to attend Mike’s chem otherapy appointm ents. (Doc. 77-2 at 11). Plaintiff occasionally encountered situations that necessitated her leaving work in the m iddle of the day. (Doc. 77 at 6). In 4 those situations, Plaintiff was som etim es gone for only a m atter of m inutes, but at other tim es, she was out of the office for a couple of hours. (Id. at 6-7). Plaintiff also recalled that there were som e instances where she was required to change appointm ent tim es because she was unable to take tim e off from work. (Id. at 10 ). On som e occasions, Neiheisel told Plaintiff that it would be better to change the appointm ents than to leave her departm ent unattended, but she was never told that she could not take off to go to an appointm ent with her husband. (Doc. 77-1 at 4). Neiheisel also did not m ake any express com m ents about Plaintiff’s tim e away from work and told her to take tim e off as needed. (Doc. 77 at 9; Doc. 77-2 at 7). Neiheisel did, however, discipline her several tim es for leaving without telling anyone that she was going to be out of the office. (Doc. 77 at 9). Som etim e around April 20 0 7, Plaintiff m ade a m istake in com pleting an alcohol requisition from a particular vendor; the part num ber on the requisition pulled up two different item s, and she later learned that she had ordered the wrong one of the two item s. (Id. at 2, 6-7). Plaintiff was told that, in doing so, she “had changed the vendor and . . . could have cost the com pany an entire production by doing that.” (Id. at 6, 11). Plaintiff m aintained that she did not change the vendor. (Id. at 6). In the sum m er of 20 0 7, Plaintiff opened her annual Perform ance Partnership docum ent to perform her em ployee self-evaluation. (Id. at 1-2). The form had already been filled in and, although there were som e criticism s of Plaintiff’s work perform ance, Neiheisel had given Plaintiff ratings of “Achieves All” and “Fully Achieves” for her perform ance goals. (Id. at 1). However, when Plaintiff reopened the docum ent to finish her self-evaluation later that sam e day, she noticed that her ratings had changed from “Fully Achieves” to “Achieves Most.” (Id. at 2). When Plaintiff asked Neiheisel about the 5 change, he stated that he did not “know what that’s about” but indicated that he would find out. (Id.). Soon after, Neiheisel advised Plaintiff that Steve Goodner, the Assistant Vice-President / Director of Supply Chain Operations, had m ade the change based on the April 20 0 7 alcohol requisition incident. (Id.; Doc. 38-3 at 15-16, 18). Plaintiff later took Neiheisel som e paperwork regarding the incident and asked him about talking to Goodner. (Doc. 77-1 at 2.). Neiheisel advised her not to talk to Goodner, so Plaintiff instead asked him to pass the paperwork along to Goodner on her behalf. (Id.) On her 20 0 7 Perform ance Partnership, Plaintiff received an overall rating of “Achieves Most.” (Doc. 38-4 at 37). Neiheisel indicated that Plaintiff had not m ade an effort to m ake personal visits with her internal custom ers and that Plaintiff’s internal custom ers and suppliers had subm itted com plaints regarding her lack of responsiveness. (Id. at 36). Neiheisel also m ade note of the April 20 0 7 incident, stating that Plaintiff had m ade changes to a requisition that “could have resulted in thousands of dollars in lost product.” (Id. at 36-37). Neiheisel also com m ented that Plaintiff’s “[d]isposition and attitude varied frequently through the year,” and further stated, Mary Ann has had a difficult year personally. It has been a delicate balance to keep open lines of com m unication and provide honest and tim ely perform ance feedback while being conscious of the pressures of her personal life. We will continue to work together to the extent possible to overcom e these perform ance issues. (Id. at 37, 39). According to Plaintiff, she would prom ptly respond to e-m ails whenever she was at the office, but she did not always receive notices that she had new e-m ails. (Doc. 77-1 at 11). Plaintiff confirm ed that her voicemail did fill up at tim es, but confirm ed that those instances were the result of her absences to care for her husband. (Doc. 77-2 at 12). Plaintiff conceded that there were tim es that she did not return voicem ails because 6 people would often end up calling Neiheisel for a resolution during her absence. (Doc. 77-1 at 11). After a discussion with Neihesiel, Plaintiff agreed to follow up with all callers to ensure that their issue had been resolved. (Id.). On J uly 31, 20 0 7, as a result of her Perform ance Partnership rating of “Achieves Most,” Plaintiff was placed on a PIP for the second tim e in her m ore than 30 years of work at J DD. (Doc. 52-3 at 1). The PIP indicated that “im m ediate and sustained” im provem ent was required in m ultiple areas and specified that Plaintiff was to m eet with Neiheisel on a m onthly basis to review her progress. (Id.). Plaintiff was given specific actions to take to im prove in the following categories: (1) “internal custom er follow-up and responsiveness”; (2) “relationship building”; and (3) “knowledge sharing.” (Id. at 1-2). Plaintiff was advised to follow up on all purchase orders via em ail or fax. (Id. at 1; Doc. 77-1 at 12). Plaintiff indicated that she was not previously aware that there was an issue with her prior practice of following up only when the item was “critical or a rush.” (Doc. 77-1 at 12). Plaintiff was advised that she m ust handle all com m unications in a “prom pt, professional and courteous m anner;” however, Neiheisel did not provide her with any exam ples of when her com m unications had fallen short of this standard, and Plaintiff felt that she had com m unicated in such a m anner in the past. (Id. at 13; Doc. 52-3 at 2). She was also inform ed that she was not perm itted to allow her voicem ail inbox to rem ain full, and she was instructed that she m ust advise her internal custom ers via email when she would be out of the office and give those custom ers notice of an alternate contact person for the duration of any absence. (Doc. 52-3 at 1; Doc. 77-1 at 12). Plaintiff was prohibited from m aking any changes to requisitions without the written approval of the requisitioner and was advised that oral com m unications were to be “followed up with written confirm ation for 7 critical or com plex requests.” (Doc. 52-3 at 1; Doc. 77-1 at 13). Plaintiff was instructed to increase her com m unications with her internal custom ers, including one-on-one m eetings with those custom ers on a quarterly basis. (Doc. 52-3 at 2; Doc. 77-1 at 12-13). On August 2, 20 0 7, Neiheisel prepared a m em orandum that was sent to Goodner and Steve J ones, J DD’s Hum an Resources Manager, regarding an August 1, 20 0 7 m eeting that Neiheisel and Goodner held with Plaintiff regarding the im plem entation of her PIP. (Doc. 40 at 1; Doc. 77-1 at 14). Neiheisel indicated that he had discussed with Plaintiff the specific areas of im provem ent needed, along with anticipated com pletion date for each area of concern. (Doc. 45-1 at 21). Plaintiff’s “unacceptable, repeating pattern of inconsistent perform ance” was discussed, and Goodner advised Plaintiff that such perform ance-related discussions “would not be a recurring event.” (Id. at 22). Plaintiff was advised that the PIP “was the last chance at im proving . . . . The next discussion would be term ination.” (Id.; Doc. 77-1 at 14). Plaintiff was also told that her “[a]ttitude m ust im prove and m aintain on a friendly and professional level.” (Doc. 45-1 at 22). Plaintiff was instructed that, as a condition of her continued em ploym ent, she would be required to partake in a m andatory em ployee assistance program (“EAP”), wherein she would speak with a doctor regarding the difficulties and stresses related to her husband’s illness. (Id.; Doc. 77-1 at 15). According to Plaintiff, Neiheisel did not give her any reasoning for why he wanted certain actions in the PIP done, but she did not ask for any clarification. (Doc. 77-1 at 13). According to Plaintiff, she began working to im plem ent the actions specified in the PIP. She began faxing her custom ers copies of requisitions and em ails when item s were com pleted and began following up on all orders. (Id. at 12-13). Plaintiff confirm ed that, although she did start sending em ails to her internal custom ers when she knew 8 that she would be out of the office, she did not send such e-m ails when she received an em ergency phone call. (Id. at 12). During the course of 20 0 7, Plaintiff began to feel that her absences were being “used against” her. (Doc. 77 at 14-15). In part, this belief was based on the fact that, until 20 0 7, Plaintiff had received favorable perform ance evaluations for every year that she had worked at BFC except for 20 0 3. (See Doc. 52-1 at 37-38). Plaintiff felt that “things escalated” when she started taking m ore tim e off and that her supervisors began to look for things to use against her. (Doc. 77 at 15). Plaintiff specifically felt that Neiheisel was using her absences against her, as he had previously told her not to worry about taking tim e off and to do whatever she needed to do, and “then all of a sudden . . . turned” and m ade an issue of her leaving without telling anyone. (Id. at 14-15). She also believed that som eone was advising Neiheisel to find things to use against her, as evidenced by the change in the tone of his com m unications in m id-J une, as well as a statem ent in an em ail that “this is all I can find.” (Id. at 15). Neiheisel later told Plaintiff that Goodner was “looking for an excuse” to docum ent her shortcom ings. (Doc. 77-1 at 3; Doc. 38-4 at 4-5). Neiheisel stated that these com m ents were his “personal opinion” and that he never heard Goodner m ake com m ents about looking for an excuse to discipline Plaintiff. (Doc. 42 at 1). Plaintiff also began to feel that she was treated differently in respect to the term s and conditions of her em ploym ent because she “didn’t fit into the ‘good ole boy’ network.” (Doc. 77 at 19). Plaintiff told J ones that she was “m easured with a different yardstick than [Hale] and the others.” (Id. at 15, 18). Plaintiff noted that she was asked to do a lot m ore reporting and adm inistrative work than Hale was asked to perform , and 9 that Hale was not required to go out on visits. (Id. at 15-16). Hale was also asked to attend com pany dinners that Plaintiff was not invited to attend. (Id. at 16). Plaintiff stated that she had received occasional phone calls or com m ents indicating that Hale was difficult to get in touch with, did not return voicem ails, and changed product orders or failed to purchase the product that som eone wanted. (Id. at 16-17). She indicated that, when people would look for Hale, som etim es his truck was still in the parking lot, and she would assum e that he was on a sm oke break. (Id. at 15). Other tim es, Hale’s truck was gone, and she did not know where he had gone. (Id. at 15, 18). Plaintiff indicated that it was “a pretty com m on occurrence” for people to be looking for each other on the floor, and, to her knowledge, Hale was never disciplined for leaving the floor without letting anyone know where he was going. (Id. at 15). She confirm ed that Hale would send out a m em o or em ail when he was going to be out of the office for a day or longer. (Doc. 77-2 at 13). According to Neiheisel, he did not receive any com plaints about Hale’s job perform ance, and he believed that Hale had strong interpersonal work relationships. (Doc. 42 at 1). Beginning in August 20 0 7, Plaintiff began keeping phone and em ail logs to docum ent her work com m unications. (Doc. 77 at 11-12). Plaintiff would periodically provide Neiheisel with copies of those docum ents for the purposes of perform ance assessm ent. (Id. at 12). Plaintiff also purchased a com pact recording device to record certain conversations that she had while at work, specifically, conversations with J ones and Neiheisel related to her job perform ance or other work feedback. (Id. at 11-12). Plaintiff would occasionally text her husband about things that were happening at work that she felt were inappropriate. (Id. at 12). 10 According to Neiheisel, Plaintiff dem onstrated “a genuine and noticeable im provem ent in perform ance” for m ost of the 20 0 7 to 20 0 8 fiscal year. (Doc. 38-4 at 41). However, on October 10 , 20 0 8, Neiheisel prepared a m em orandum for J ones and Goodner indicating that Plaintiff’s perform ance had “begun to slip.” (Id.). Neisheisel stated that Plaintiff’s efforts at relationship building had “stopped altogether,” she had not m ade any effort to assist in training the new adm inistrative assistant, and she spent a “disproportionate am ount of work hours on the Internet accessing non-job related sites . . . account[ing] for a m inim um of 25% of her daily activity.” (Id.).1 On Novem ber 7, 20 0 8, Neiheisel prepared a Corrective Action Notice for Plaintiff. (Doc. 45-1 at 23). The notice, which was labeled “Final Written Warning,” stated that Plaintiff had “been counseled and coached to im prove and m aintain her work perform ance, including com m unication skills, interpersonal skills, personal use of com pany internet, and other elem ents of her position.” (Id.). The notice indicated that no additional counseling sessions would be conducted and that Plaintiff’s “[f]ailure to im prove and m aintain a high level of work perform ance will result in term ination.” (Id.). Goodner and Neiheisel m et with Plaintiff that sam e day to give her the notice and advised Plaintiff that she would have been term inated already had it not been for her husband’s illness. (Doc. 77-1 at 19). On Decem ber 5, 20 0 8, Neiheisel prepared a m em orandum for J ones and Goodner regarding another perform ance issue with Plaintiff’s work. (Doc. 38-1 at 77). 1 Neiheisel attached a “summ ary of verbal discussions,” indicating that he had met with Plaintiff on three specific dates from J uly through October of 20 0 8 to discuss these topics. (Doc. 38-4 at 42). Plaintiff m aintains that these discussions never took place, and that she was actually not at work on the dates that Neiheisel stated that he had these discussions with her. (Doc. 77-1 at 16; Doc. 38-1 at 44). Plaintiff contends that she and Neiheisel had one brief and general conversation about how “the shipping girls” were being watched for being on the internet. (Doc. 38 -1 at 44). Defendant has conceded that Plaintiff’s version of events m ust be accepted as true for the purposes of sum mary judgm ent. (See Doc. 38 at 7 n.7). 11 Specifically, Plaintiff failed to notify the production team of a shipm ent delay which could have cost the com pany several hours of production time. (Id.). Neiheisel indicated that he had advised Plaintiff that future lapses of this nature would “clearly lead to term ination.” (Id.). Starting in 20 0 8, Plaintiff had also begun caring for her sick aunt “off and on.” (Doc. 77 at 5). Plaintiff’s m other, Sarah, was diagnosed with cancer in February 20 0 9, which led to additional tim e that Plaintiff needed to be absent from work. (Id.). According to Goodner, he was “bom barded” with “general” negative feedback about Plaintiff around this tim e. (Doc. 38-3 at 3-7). Goodner indicated that all of this feedback was verbal, and there was accordingly no record of the negative com m ents about Plaintiff. (Id.). On J une 15, 20 0 9, Plaintiff asked Neiheisel, as she did every m onth, if he had any perform ance issues to discuss with her. (Doc. 77-2 at 2-3; Doc. 38-1 at 76). Several m inutes later, Neiheisel provided her with a list of perform ance issues, including that she had been seen with newspapers and crossword puzzles in the m orning hours, that her purchase order accuracy had suffered in the m ost recent m onths, and that she had left work without notifying anyone of her whereabouts. (Doc. 77-2 at 3; Doc. 38-1 at 76). Plaintiff explained to Neiheisel that there had been no one on the floor to tell about her need to leave on the occasions that she did not inform anyone that she was leaving for an em ergency. (Doc. 77-2 at 3). According to Plaintiff, there were only three tim es that she had em ergencies that required her to leave the office without letting anyone know that she would be out. (Doc. 77-1 at 12). She also indicated that crossword puzzles and the newspaper were her “version of a coffee break.” (Doc. 77-2 at 3). 12 On her perform ance evaluation for the fiscal year ending April 30 , 20 0 9,2 Plaintiff was rated at a level of “Im m ediate Im provem ent Required.” (Doc. 38-1 at 10 0 , 10 3). Specifically, Neiheisel noted that Plaintiff’s perform ance had declined in the following areas: excessive tim e spent on non-work activities, such as internet, crosswords, and newspapers; accuracy of paperwork; notification of supervisors or colleagues before leaving work; following up with supply chain staff regarding the late delivery of m aterials; consistent and prom pt responses to internal custom ers; and consistent relationship building. (Id. at 10 3-0 4). Plaintiff conceded that she som etim es used the internet for personal use, but she denied that such use was “excessive.” (Doc. 77-1 at 8, 19, 21). Plaintiff stated that Hale, along with m any other em ployees, “used the internet,” and, as far as she knew, she was the only em ployees to ever be written up for this conduct. (Doc. 38-1 at 29; Doc. 77 at 15, 18). Neiheisel stated that he never personally saw Hale reading a newspaper at the office or spending excessive tim e on the internet for non-work related purposes. (Doc. 42 at 1). It is undisputed that general personal use of the internet was not prohibited for J DD em ployees. (See Doc. 38-2 at 25; 38-4 at 19; Doc. 52-1 at 24). According to Plaintiff, she had frequently told her m anagers that “their issues and com plaints were not accurate.” (Doc. 77-2 at 15). When Plaintiff asked for specific exam ples of her alleged deficiencies, she was “told that doesn’t m atter.” (Id. at 14). Plaintiff believed that the disciplinary and perform ance issues that were brought up from 20 0 7 and beyond were all either examples of BFC im properly using her tim e off to 2 The 20 0 9 perform ance review includes an “Appraisal Date” of J uly 7, 20 0 9. (Doc. 38-1 at 10 0 ). Plaintiff was “not sure” what that date meant, but indicated that it m ay have been the date that she had a discussion with m anagem ent about her perform ance review. (Doc. 77-2 at 13). 13 care for her husband and m other against her or were “out and out lies and falsification of docum ents.” (Id. at 14-15; Doc. 38-1 at 57, 61, 63; Doc. 77-1 at 4). Until the sum m er of 20 0 9, Plaintiff was using her vacation tim e to care for her husband and her m other and believed that “you only took FMLA leave if you were on sick leave[.]” (Doc. 77 at 5-6). Neither Goodner nor any m em ber of the hum an resources departm ent advised Plaintiff that she “probably should have asked for FMLA leave.” (Id. at 9, 17). Finally, in J une 20 0 9, Mike advised Plaintiff that she could file for FMLA leave. (Id. at 6). Plaintiff began the process of applying for FMLA leave, and subm itted the accompanying m edical certification form to her husband’s doctor for com pletion in early to m id-J uly. (Doc. 77-2 at 6). On J uly 20 , 20 0 9, Plaintiff signed and subm itted her application for FMLA leave. (Doc. 38-1 at 78-80 ).3 Also on J uly 20 , 20 0 9, Plaintiff attended a m eeting with J ones and Goodner. (Doc. 77 at 14). At that meeting, Plaintiff was advised that, as of Septem ber 1, 20 0 9, she would be relieved of her duties as a senior buyer and would be dem oted to the position of assistant shipping adm inistrator. (Id. at 4, 13). Plaintiff’s duties in her new position would include preloading export orders and ensuring that were no problem s on the shipping floor. (Doc. 77-1 at 7-8). According to Goodner, the decision was m ade by him self, J ones, Neiheisel, and a num ber of other individuals who had to approve of the decision. (Doc. 38-3 at 11). At this m eeting, Goodner advised Plaintiff that her new position would give her less responsibility within the com pany and would let her take a lesser role given all of the “pressures” that she was under. (Id. at 12-13). Goodner told Plaintiff that everyone understood why she had been out and that the decision was not 3 The record reflects that, although Plaintiff subm itted her request for FMLA leave to BFC on J uly 20 , 20 0 9, the medical certification was not signed and dated by her husband’s health care provider until J uly 22, 20 0 9. (Doc. 38-1 at 83). 14 based on her absences, and was instead based only on her job perform ance. (Id. at 13). Goodner stated that, because she would have less responsibility in her new position, the tim es that she needed to be out would be “less im pactful” on the departm ent as a whole. (Doc. 52-5 at 17). Plaintiff filed an internal com plaint with the corporate office on August 5, 20 0 9. (Doc. 77-1 at 8-9; Doc. 43). As part of the internal investigation of Plaintiff’s com plaint, Kathy Stearm an from the corporate office cam e to get Plaintiff’s story. (Doc. 77 at 13). Stearm an also m et with a num ber of other em ployees, including J ones, Goodner, Neiheisel, and May. (Doc. 43). Stearm an “concluded that Plaintiff was not m eeting the expectations of her position and had not been doing so for a significant period of tim e,” and determ ined that the decision to dem ote Plaintiff “was based solely on . . . perform ance issues.” (Id.). Plaintiff’s request for interm ittent FMLA leave to care for her husband was approved on J uly 25, 20 0 9. (Doc. 38-1 at 78). Plaintiff filed a second request for interm ittent FMLA leave, based on care for her m other, on August 10 , 20 0 9, which was also approved. (Id. at 84). Plaintiff continued to use FMLA leave to care for her husband and her m other. (See id. at 78-99). Plaintiff’s m other died in August 20 0 9. (Doc. 77 at 5). On Septem ber 1, 20 0 9, Plaintiff assum ed her new position, and her salary was reduced by approxim ately $ 30 ,0 0 0 .0 0 as a result of the dem otion. (Doc. 77-1 at 8; Doc. 77-2 at 5). At that tim e, Plaintiff was replaced as senior buyer by another fem ale em ployee. (Doc. 77-1 at 3). Plaintiff’s husband died in J une 20 10 . (Doc. 77-2 at 6). Plaintiff initiated this action on J une 23, 20 10 . (Doc. 1). In her am ended civil com plaint, Plaintiff alleged that Defendants’ had subjected her to various unlawful 15 em ploym ent practices. (Doc. 15 at 1-8). Specifically, Plaintiff alleged that Defendants were liable for both interference and retaliation under the FMLA, sex discrim ination under the Tennessee Hum an Rights Act (“THRA”), and that BFC was additionally liable for Title VII sex discrim ination.4 (Doc. 5 at 8-11). Defendants now seek sum m ary judgm ent. (See 37, 44). II. SU MMARY JU D GMEN T STAN D ARD Federal Rule of Civil Procedure 56 instructs the Court to grant sum m ary judgm ent “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). A party asserting the presence or absence of genuine issues of m aterial facts m ust support its position either by “citing to particular parts of m aterials in the record,” including depositions, docum ents, affidavits or declarations, stipulations, or other m aterials, or by “showing that the m aterials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce adm issible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). In ruling on a m otion for sum m ary judgm ent, the Court m ust view the facts contained in the record and all inferences that can be drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita, 475 U.S. at 587; Nat’l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 90 0 , 90 7 (6th Cir. 20 0 1). The Court cannot weigh the evidence, judge the credibility of witnesses, or determ ine the 4 Plaintiff’s Com plaint also raised claim s of age discrimination under the THRA and the Age Discrim ination in Em ploym ent Act (“ADEA”), as well as a claim that Defendants violated the Em ployee Retirement Income Security Act (“ERISA”). (Doc. 15 at 2, 9-11). However, Plaintiff expressly abandoned her ERISA and age discrim ination claim s in her response to Defendants’ Motions for Sum m ary J udgm ent. (Doc. 55 at 1 n.1). Accordingly, Defendants are entitled to sum m ary judgm ent as these claim s. See E.D. Tenn. L.R. 7.2; see also Parker v. Zale Corp., --- F. Supp. 2d ---, 20 12 WL 10 71194, *9 (E.D. Tenn. 20 12) (finding that defendants are entitled to sum m ary judgment as to claim s that plaintiff abandons at the sum m ary judgm ent stage). 16 truth of any m atter in dispute. Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249 (1986). The m oving party bears the initial burden of dem onstrating that no genuine issue of m aterial fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The m oving party m ay discharge this burden either by producing evidence that dem onstrates the absence of a genuine issue of m aterial fact or sim ply “by ‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to support the nonm oving party’s case.” Id. at 325. Where the m ovant has satisfied this burden, the nonm oving party cannot “rest upon its . . . pleadings, but rather m ust set forth specific facts showing that there is a genuine issue for trial.” Moldow an v. City of W arren, 578 F.3d 351, 374 (6th Cir. 20 0 9) (citing Matsushita, 475 U.S. at 586; Fed. R. Civ. P. 56). The nonm oving party m ust present sufficient probative evidence supporting its claim that disputes over m aterial facts rem ain and m ust be resolved by a judge or jury at trial. Anderson, 477 U.S. at 24849 (citing First N at’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253 (1968)); see also W hite v. W y ndham Vacation Ow nership, Inc., 617 F.3d 472, 475-76 (6th Cir. 20 10 ). A m ere scintilla of evidence is not enough; rather, there m ust be evidence from which a jury could reasonably find in favor of the nonm oving party. Anderson, 477 U.S. at 252; Moldow an, 578 F.3d at 374. If the nonm oving party fails to m ake a sufficient showing on an essential elem ent of its case with respect to which it has the burden of proof, the m oving party is entitled to sum m ary judgm ent. Celotex, 477 U.S. at 323. 17 III. AN ALYSIS A. FMLA Claim s Under the Fam ily and Medical Leave Act of 1993, 29 U.S.C. § 260 1 et seq., eligible em ployees are entitled to a total of 12 workweeks of leave during any 12-m onth period for certain events, including “to care for the spouse, or a son, daughter, or parent of the em ployee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C. § 2612(a)(1)(C). The FMLA m akes it unlawful for any em ployer “to interfere with, restrain, or deny the exercise of or the attem pt to exercise, any right provided [by the Act],” 29 U.S.C. § 2615(a)(1), or to “discharge or in any other m anner discrim inate against any individual for opposing any practice m ade unlawful by [the Act].” 29 U.S.C. § 2615(a)(2). Em ployers who violate the FMLA are liable to the em ployee for dam ages and such equitable relief as m ay be appropriate. 29 U.S.C. § 2617(a)(1). There are two distinct theories of recovery under the FMLA: the “interference” or “entitlem ent” theory, grounded in § 2615(a)(1), and the “retaliation” or “discrim ination” theory, grounded in § 2615(a)(2). Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 282 (6th Cir. 20 12). Plaintiff has raised claim s under both theories, and they will be discussed in turn. 1. FMLA Interference In order to prove a claim for FMLA interference, a plaintiff m ust establish that: “(1) [s]he was an eligible em ployee, (2) defendant was a covered employer, (3) [s]he was entitled to leave under the FMLA, (4) [s]he gave defendant notice of [her] intent to take leave, and (5) the defendant denied [her] FMLA benefits or interfered with FMLA rights to which [s]he was entitled.” Harris v. Metro. Gov’t of Nashville & Davidson Cnty ., Tenn., 594 F.3d 476, 482 (6th Cir. 20 10 ). “If an em ployer interferes with the FMLA18 created right to m edical leave or to reinstatem ent following the leave, a violation has occurred, regardless of the intent of the em ployer.” Seeger, 681 F.3d at 282 (quotation and citation om itted). The FMLA is not, however, a strict liability statute, as a plaintiff m ust establish that she was harm ed by the defendant’s alleged FMLA violation in order to survive sum m ary judgm ent. Rom ans v. Mich Dep’t of Hum an Serv., 668 F.3d 826, 842 (6th Cir. 20 12). Plaintiff raises two argum ents to support her claim of FMLA interference: (1) Defendants interfered with her FMLA rights “by rem oving her from the Senior Buyer position . . . rather than perm it her continued FMLA leave,” and (2) Defendants’ failure to give her express notice of her FMLA eligibility, as required by the Code of Federal Regulations, was, in and of itself, a “clear” act of interference. (See Doc. 15 at 8; Doc. 55 at 10 -13). Plaintiff’s first argum ent is wholly lacking in m erit. The undisputed evidence in the record clearly dem onstrates that Plaintiff continued to take qualifying FMLA leave after her dem otion. (See Doc. 38-1 at 78-99). Thus, Plaintiff has not dem onstrated that her dem otion interfered with her rights to FMLA leave. In her second argument, Plaintiff argues that, under 29 C.F.R. §§ 825.30 0 , 825.30 1, Defendants were required to give her written or oral notice of her eligibility for FMLA leave within five days, along with a written notice detailing the expectations and consequences associated with FMLA leave. (See Doc. 15 at 8; Doc. 55 at 11). There is no dispute that Defendants failed to provide Plaintiff with such notice. However, “[a]n em ployer’s failure to com ply with the notice requirem ents of the FMLA only supports a cause of action where the inadequate notice effectively interfere[s] with the plaintiff’s 19 statutory rights.” See Fink v. Ohio Health Corp., 139 F. App’x 667, 671 (6th Cir. 20 0 5) (internal quotation and citation om itted). Here, Plaintiff has not established sufficient facts to survive sum m ary judgm ent, as she has failed to dem onstrate that she suffered any harm or actual interference as a result of Defendants’ failure to give her the required notice. Plaintiff alleges that, as a result of BFC’s failure to notify her of her FMLA rights, “she used vacation tim e to care for her husband and m other and worked to m ove appointm ents for care and treatm ent to tim es when she would not m iss work.” (Doc. 55 at 12). However, BFC’s FMLA policy, as set forth in its em ployee handbook, requires em ployees to exhaust “[a]ll vacation and disability benefits . . . as part of the FMLA leave.” (Doc. 38-2 at 50 ). The United States Court of Appeals for the Sixth Circuit has expressly held that the FMLA does not prohibit com panies from enacting and enforcing policies that require em ployees to use their paid benefits in tandem with FMLA leave. See Allen v. Butler Cnty . Com m ’rs, 331 F. App’x 389, 393 (6th Cir. 20 0 9) (citing 29 C.F.R. § 825.20 7(a)). Additionally, section 825.30 2 of the Code of Federal Regulations provides in relevant part that an em ployee m ust consult with the em ployer when scheduling m edical treatm ents, to “attem pt to work out a schedule which m eets the em ployee’s needs without unduly disrupting the em ployer’s operations.” 29 C.F.R. § 825.30 2(e)-(f). Clearly, even if Plaintiff had received appropriate notice of her FMLA eligibility, her FMLA rights would not have been unfettered; that is, Plaintiff would still have been required to com ply with BFC’s policy requiring her to exhaust her vacation tim e as part of her FMLA leave and to consult with her supervisors to schedule appointm ents at tim es that did not unduly disrupt her work schedule. Thus, Plaintiff cannot dem onstrate that her use of vacation tim e or rescheduling of m edical appointm ents 20 were “harm s” that she suffered as a result of Defendants’ failure to give her the required notice of eligibility. Ultim ately, Plaintiff does not dispute Defendants’ m ain contention, nam ely, that from 20 0 4 through 20 0 9, Plaintiff was never denied any tim e off to care for her husband or her m other. Although Plaintiff m ay have been denied proper or tim ely notice of her eligibility, BFC’s failure in this regard had no practical effect on Plaintiff’s exercise of her statutorily-entitled FMLA rights. Because Plaintiff has not shown that she suffered any harm as a result of this alleged FMLA violation, she is not entitled to relief. Accordingly, Defendants’ Motion for Sum m ary J udgm ent on Plaintiff's FMLA claim under the interference theory is GRANTED. 2. FMLA Retaliation In order to prove a claim for FMLA retaliation, a plaintiff m ust establish by a preponderance of the evidence that: “(1) she was engaged in an activity protected by the FMLA; (2) the em ployer knew that she was exercising her rights under the FMLA; (3) after learning of the em ployee’s exercise of FMLA rights, the em ployer took an em ploym ent action adverse to her; and (4) there was a causal connection between the protected FMLA activity and the adverse em ploym ent action.” Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 20 0 6) (citing Arban v. W est Publ’g Co., 345 F.3d 390 , 40 4 (6th Cir. 20 0 3)). An FMLA retaliation claim accordingly centers around “whether the em ployer took the adverse action because of a prohibited reason or for a legitim ate nondiscriminatory reason,” and “[t]he em ployer’s m otive is relevant because retaliation claim s im pose liability on em ployers that act against em ployees specifically because those em ployees invoked their FMLA rights.” Edgar v. JAC Prods., Inc., 443 F.3d 50 1, 50 8 (6th Cir. 20 0 6) (citation and internal quotation m arks om itted). 21 “The burden of proof at the prim a facie stage is m inim al; all the plaintiff m ust do is put forth som e credible evidence that enables the court to deduce that there is a causal connection between the retaliatory action and the protected activity.” Seeger, 681 F.3d at 283 (quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir.20 0 7)); see also EEOC v. Avery Dennison Corp., 10 4 F.3d 858, 861 (6th Cir. 1997) (noting that plaintiff’s burden of establishing a prim a facie case is not an onerous one). The Sixth Circuit has held that “acutely” close tem poral proxim ity between the protected activity and the adverse em ploym ent action “is deem ed indirect evidence such as to perm it an inference of retaliation[.]” Id. at 283-84 (quoting DiCarlo v. Potter, 358 F.3d 40 8, 421 (6th Cir. 20 0 4)). The McDonnell Douglas burden shifting fram ework apples to FMLA retaliation claim s. Rom ans, 668 F.3d at 842; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 80 2-0 4 (1972). Thus, after the plaintiff establishes a prim a facie case of FMLA retaliation, the burden shifts to the defendant to establish a legitimate, nondiscrim inatory reason for its action. Id. If the defendant sets forth a legitim ate, nondiscrim inatory reason for the adverse em ploym ent action, the burden then shifts back to the plaintiff to establish pretext by showing that the em ployer’s proffered reasons (1) have no basis in fact, (2) did not actually m otivate the action, or (3) were insufficient to warrant the action. Seeger, 681 F.3d at 285 (citing Dew s v. A.B. Dick Co., 231 F.3d 10 16, 10 21 (6th Cir. 20 0 0 )). The plaintiff “bears the burden of producing sufficient evidence from which the jury could reasonably reject [the defendant’s] explanation and infer that the defendant [ ] intentionally discrim inated against h[er].” Id. (quoting Clark v. W algreen Co., 424 F. App’x 467, 474 (6th Cir. 20 11)). Despite the fact that tem poral proxim ity m ay be sufficiently close to establish a causal connection in the 22 prim a facie case, “tem poral proxim ity cannot be the sole basis for finding pretext.” Seeger, 681 F.3d at 285 (quoting Donald v. Sy bra, Inc., 667 F.3d 757, 763 (6th Cir. 20 12)). “Suspicious tim ing,” however, m ay be “a strong indicator of pretext when accom panied by som e other, independent evidence.” Id. (quoting Bell v. Prefix, Inc., 321 F. App’x 423, 431 (6th Cir. 20 0 9)). In this case, there is no dispute as to the first three prongs of the prim a facie case; Defendants concede that Plaintiff’s leave from 20 0 4 through 20 0 9 qualified as FMLA leave and acknowledge that her demotion was an adverse em ploym ent action. Defendants dispute only the fourth prong, nam ely, that there was a causal connection between Plaintiff’s FMLA leave and her dem otion. Specifically, Defendants argue that it “defies credulity” to conclude that there was a causal connection between Plaintiff’s FMLA leave and her dem otion because BFC would have “dem oted her im m ediately after she began taking leave” if it possessed discrim inatory anim us. The Court disagrees and finds that Plaintiff has m et her m inim al burden of proof to establish a prim a facie case of FMLA retaliation. The evidence dem onstrates that, while Plaintiff was taking som e FMLA leave as early as 20 0 4, the am ount of tim e that she was out of the office increased substantially in 20 0 7 when her husband began chem otherapy, and increased again in 20 0 9 when her m other was also diagnosed with cancer. The evidence also dem onstrates that the num ber of disciplinary actions taken against Plaintiff significantly increased during this tim e period, and that Plaintiff’s supervisors referenced her personal problem s in her disciplinary actions and at her dem otion m eeting. Moreover, Plaintiff’s dem otion occurred on the sam e day that Plaintiff filed her first form al request for FMLA leave. The Court finds that Plaintiff has shown, by a preponderance of the evidence, a causal connection between her FMLA 23 leave and her dem otion, and has thus m et her burden of proof to establish a prim a facie case of FMLA retaliation. The burden accordingly shifts to Defendants to show a legitim ate nondiscriminatory reason for Plaintiff’s dem otion. Defendants have m et this burden by pointing to Plaintiff’s annual reviews and disciplinary notices during the relevant tim e period, and asserting that Plaintiff’s term ination was based solely on her poor work perform ance. The burden now shifts back to Plaintiff to establish pretext by showing that BFC’s proffered reasons (1) have no basis in fact, (2) did not actually m otivate the action, or (3) were insufficient to warrant the action. Viewing the evidence in the light m ost favorable to Plaintiff, the Court finds that Plaintiff has presented sufficient evidence to give rise to an inference of retaliation. First, the tim ing of Plaintiff’s dem otion – on the sam e day that she subm itted her first form al request for interm ittent FMLA leave – is highly suspicious; this close tem poral proxim ity between Plaintiff’s request for FMLA leave and her dem otion is evidence of pretext. Tem poral proxim ity, however, is not the only suspicious evidence in the record. Neiheisel m ade explicit references to Plaintiff’s absences and personal struggle in dealing with the illnesses of her husband and her m other in disciplinary m em oranda and reports. (Doc. 38-4 at 37, 39; Doc. 45-1 at 22; Doc. 77-1 at 15). Additionally, Neiheisel m ade comm ents about Goodner looking for an “excuse” to punish Plaintiff, and confirm ed as m uch in an em ail stating that “this is all I could find.” (Doc. 38-4 at 45; Doc. 42 at 1; Doc. 77 at 15; Doc. 77-1 at 3). Goodner’s undisputed statem ents to Plaintiff during the dem otion m eeting are additional evidence of pretext, as he m ade overt references to her absences and clearly stated that her absences would be less 24 im pactful given her lesser responsibilities in her new position. (Doc. 38-3 at 12-13; Doc. 52-5 at 17). These statem ents, in conjunction with Plaintiff’s testim ony that the com plaints against her were not brought against any other em ployees exhibiting sim ilar behaviors and ranged from inaccurate to “out and out lies,” represent sufficient evidence from which a jury could infer that BFC discrim inated against Plaintiff. The Court cannot conclude as a m atter of law that Plaintiff’s dem otion was not m otivated by retaliation for her exercise of her FMLA rights. Defendants’ Motion for Sum m ary J udgm ent on Plaintiff’s FMLA claim under the retaliation theory is DENIED. B. Se x D is crim in atio n Claim s Under Title VII, employers are prohibited from discrim inating against an em ployee based on a num ber of characteristics, including gender. 42 U.S.C. § 20 0 0 e2(a)(1). The Tennessee Hum an Rights Act (“THRA”) is Tennessee’s state-law supplem ent to Title VII, which serves to “safeguard all individuals within the state from discrim ination because of race, creed, color, religion, sex, age, or national origin in connection with em ploym ent[.]” Tenn. Code Ann. § 4-21-10 1(a)(3). Discrim ination claim s raised under the THRA are evaluated in the sam e m anner as Title VII claim s. See, e.g., Sy brandt v. Hom e Depot, U.S.A., Inc., 560 F.3d 553, 557 (6th Cir. 20 0 9); W right v. Murray Guard, Inc., 455 F.3d 70 2, 714 (6th Cir. 20 0 6). An em ployee m ay establish his discrim ination claim using either direct or circum stantial evidence. Id. With respect to Plaintiff’s gender discrim ination claim s in the instant case, there is no direct evidence of discrim inatory intent. Accordingly, Plaintiff’s claim s m ust be analyzed under the McDonnell Douglas / Burdine burdenshifting analysis. See Tex. Dep’t of Cm ty . Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); McDonnell Douglas, 411 U.S. at 80 2-0 4. Under this analytical schem e, the 25 burden first falls to the plaintiff to establish a prim a facie case of discrim ination. Burdine, 450 U.S. at 252-53; DiCarlo, 358 F.3d at 414. To m ake a prim a facie case of gender discrim ination, a plaintiff “m ust show that: (1) she is a m em ber of a protected group; (2) she was subjected to an adverse em ploym ent decision; (3) she was qualified for the position, in that she was m eeting legitim ate expectations and perform ing to her em ployer’s satisfaction; and (4) she was replaced by a person outside the protected class, or sim ilarly situated non-protected em ployees were treated m ore favorably.” Grace v. USCAR, 521 F.3d 655, 677 (6th Cir. 20 0 8); W arfield v. Lebanon Corr. Inst., 181 F.3d 723, 729 (6th Cir. 1999). To be considered “sim ilarly situated, “the plaintiff need not dem onstrate an exact correlation with the em ployee receiving more favorable treatment[.]” Ercegovich v. Goody ear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). Instead “the plaintiff and the employee with whom the plaintiff seeks to com pare . . . herself m ust be sim ilar in all of the relevant aspects.” Knox v. Neaton Auto Prods. Mfg., Inc., 375 F.3d 451, 458 (6th Cir. 20 0 4) (internal quotation m arks om itted). “[T]o establish a prim a facie case, [plaintiff] m ust identify at least one sim ilar, non-protected em ployee guilty of conduct of com parable seriousness to the conduct for which [the adverse action was taken] but whom m anagem ent treated m ore leniently.” Trout v. First Energy Generation Corp., 339 F. App’x 560 , 564 (6th Cir. 20 0 9). In order to assess whether the em ployees’ acts were com parably serious, “a court m ay consider whether the individuals have dealt with the sam e supervisor, have been subject to the sam e standards[,] and have engaged in the sam e conduct without such differentiating or m itigating circum stances that would distinguish their conduct or the em ployer’s treatm ent of them for it.” Colvin v. Veterans 26 Adm in. Med. Ctr., 390 F. App’x 454, 458 (6th Cir. 20 10 ) (internal quotation and citation om itted). If the plaintiff is able to m eet her burden of showing a prim a facie case of discrim ination, the burden then shifts to the defendant to articulate a legitim ate, nondiscriminatory reason for the plaintiff’s term ination. Burdine, 450 U.S. at 253; DiCarlo, 358 F.3d at 414. If the defendant is able to articulate a legitim ate, nondiscriminatory reason for the plaintiff’s term ination, the burden then shifts back to the plaintiff to produce evidence from which a jury could find that the defendant’s stated reason is actually a pretext for discrim ination. Burdine, 450 U.S. at 253; DiCarlo, 358 F.3d at 414-15. There is no dispute that Plaintiff m eets the first two elem ents of a prim a facie case: she is a m em ber of a protected group, nam ely, fem ale em ployees, and she was dem oted. There is a significant dispute in this case as to whether Plaintiff was “qualified” for her job under the Title VII analysis. However, even giving Plaintiff the benefit of the doubt as to the third elem ent, she is still unable to dem onstrate a prim a facie case of gender discrim ination based on the fourth elem ent – that she was replaced by a person outside the protected class or that sim ilarly situated non-protected em ployees were treated m ore favorably. Plaintiff concedes that, when she was demoted from her position as a senior buyer, she was replaced by another fem ale em ployee. (Doc. 77-1 at 3). Thus, to prove her prim a facie case, Plaintiff m ust have presented evidence sufficient for a reasonable jury to find that she was treated differently than sim ilarly situated m ale em ployees. Despite her claim to the contrary, Plaintiff has failed to carry this burden. 27 Plaintiff identifies only one com parable em ployee in her deposition, J ohn Hale. Although Hale was, like Plaintiff, a senior buyer at the J DD, Hale enjoyed m ore seniority at the com pany, given that he had been em ployed by BFC for four years before Plaintiff was hired, was m ade a buyer nine years before Plaintiff, and was m ade a senior buyer four years before Plaintiff. (Doc. 38-2 at 3; Doc. 40 at 1; Doc. 77 at 8). Plaintiff concedes that, although she and Hale shared sim ilar job responsibilities, Hale perform ed tasks that Plaintiff was not asked to perform , such as requisitions and purchase orders for construction projects. Thus, it does not appear that Plaintiff and Hale were sim ilar in all relevant aspects to be “sim ilarly situated” for purposes of the discrim ination analysis.5 Even if the Court assum es for the sake of argum ent that Plaintiff and Hale are sim ilarly situated, Plaintiff has failed to dem onstrate that Hale was treated m ore favorably for com parably serious behavior. Plaintiff has failed to set forth sufficient facts to suggest that Hale was accused of, or com m itted acts sim ilar to the instances of m isconduct that she allegedly com m itted. Specifically, Plaintiff has not presented any evidence that Hale’s custom ers m ade any com plaints about him, that his supervisors com plained about the accuracy and expediency of his work, or that Hale was accused of 5 Plaintiff m akes m uch of the fact that she was paid less m oney than Hale despite the fact that Plaintiff had both a college degree and a specialized certification -- qualifications which Hale did not possess. However, Plaintiff has failed to present any evidence suggesting that gender discrimination was the reason behind Hale’s higher salary. Although Hale did not possess a bachelor’s degree, he possessed the requisite experience for the position as detailed in senior buyer position description. Further, the specialized certification that Plaintiff earned was a “preferred,” not “required,” position qualification. Ultim ately, Hale was more senior to Plaintiff at the com pany, was m ore senior to Plaintiff as both a buyer and a senior buyer, and enjoyed m ore responsibilities than Plaintiff, including handling requisitions and purchasing for large construction projects. Plaintiff and Hale were not sim ilarly situated em ployees, and Plaintiff has not dem onstrated that Hale was treated m ore favorably than her because he was paid m ore. 28 using the internet for personal reasons.6 Additionally, although Plaintiff generally states that there were tim es where Hale would leave the office and people would ask where he was, she presents no evidence to show that Hale had not followed procedures for letting his superiors and/ or custom ers know of his absences or that his custom ers com plained about his lack of availability or responsiveness. Plaintiff also m ade the statem ent that Hale “used the internet,” but failed to provide any specific details about the frequency or reasons for such use. Moreover, personal use of the internet was not prohibited for BFC em ployees, and Plaintiff contended that m any BFC em ployees used the internet and that no em ployee other than herself was ever written up. Here, Plaintiff has not presented sufficient evidence that Hale comm itted serious or com parable m isconduct; instead, she merely alleges that, to the extent that he m ay have com m itted m isconduct, she was not aware of any resulting punishm ents or consequences. At its core, Plaintiff’s argum ent is that the disciplinary actions and accusations against her were unfounded. Such argum ents and the corresponding evidence m ay be evidence of pretext for her term ination, but they do not ultim ately dem onstrate that Hale was treated m ore favorably than Plaintiff for sim ilar m isconduct. Plaintiff’s evidence is insufficient to establish that Hale was a sim ilarly situated em ployee who was treated more favorably than her in light of sim ilar conduct. Accordingly, Plaintiff has failed to set forth a prim a facie claim of gender discrim ination, and Defendants are therefore entitled to sum m ary judgm ent with respect to Plaintiff’s claim s under Title VII and the THRA. 6 In her deposition, Plaintiff stated that she had heard som e things about Hale being difficult to find because of his sm oke breaks and “som e . . . stuff” that she “d[id]n’t want to get into.” (Doc. 77 at 16-17). These types of vague and conclusory statements do not constitute sufficient evidence to create a genuine issue of m aterial fact as to whether Hale was treated m ore favorably than Plaintiff for sim ilar m isconduct. See Anderson, 477 U.S. at 248-52. 29 For the foregoing reasons, Defendants’ Motions for Sum m ary J udgm ent will be GRAN TED as to Plaintiff’s claim s of FMLA interference, Title VII sex discrim ination, and THRA sex discrimination. However, Defendants’ Motions for Sum m ary J udgm ent will be D EN IED as to Plaintiff’s FMLA retaliation claim s. The Court hereby GRAN TS IN PART AN D D EN IES IN PART Defendants’ Motions for Sum m ary J udgm ent (Docs. 37, 44). In light of the Court’s order, it is necessary for the Court to enter a new scheduling order. The Court thus D EN IES AS PREMATU RE the parties’ Motions in Lim ine. (Docs. 58, 60 , 62, 64, 66, 70 , 75). The parties m ay refile such m otions in accordance with dates that shall be set in a forthcom ing scheduling order. SO ORD ERED this 25th day of Septem ber, 20 12. / s/ Harry S. Mattice, Jr._ _ _ _ _ _ HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 30
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