The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
REPORT AND RECOMMENDATION
This matter is before the undersigned pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by Order [Doc. 24] of the Honorable Thomas A. Varlan, United States District Judge, for a report and recommendation on the defendant's Motion for Summary Judgment [Doc. 11].
This is a discrimination and retaliation action brought by the plaintiff Carol Cox ("Cox") against her former employer, Carrier Sales & Distribution ("Carrier").*fn1 Specifically, the plaintiff asserts causes of action under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"); the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"); the Equal Pay Act, 29 U.S.C. § 206(d); Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101, et seq. ("THRA"); and the Tennessee Handicap Act, Tenn. Code Ann. § 8-50-103 ("THA"). Additionally, the plaintiff asserts a claim of intentional infliction of emotional distress under Tennessee state law. Cox's husband, Sammie Cox, also asserts a claim for loss of consortium. [Doc. 1].
It is admitted that Carrier is an "employer" within the meaning of the various state and federal statutes under which the plaintiff brings this action; that Cox filed a charge with the EEOC; and further, that the EEOC issued the plaintiff a Notice of Right to Sue on July 8, 2004. [Doc. 3]. The subject matter jurisdiction of the Court is not in dispute. [Doc. 2].
After carefully considering the entire record, the Court concludes that summary judgment in favor of Carrier isproper as to all of the plaintiff's claims. Accordingly, for the reasons set forth herein, it is RECOMMENDED that the defendant's Motion for Summary Judgment [Doc. 11] be granted and that this case be dismissed.
As required by Rule 56 of the Federal Rules of Civil Procedure, the Court will recite and consider the relevant facts in the light most favorable to the plaintiff. In doing so, the Court relies on the depositions of the plaintiff Carol Cox and several Carrier employees, and other testimony and exhibits filed with the Court.
The plaintiff was initially hired by Andrews Distributing on December 27, 1999 as an administrative assistant in the Knoxville office. She was 47 years old at the time. In 2001, Andrews Distributing was bought out by Carrier. [Cox Dep. at 17-19]. The office in which the plaintiff worked was part of a region which included offices in Knoxville, Chattanooga, and the Tri-Cities area. Glenn Loper ("Loper") is the Market Manager for this region, and all 35 employees in this region ultimately report to him. Loper works in the Chattanooga office. Scott Henry ("Henry") is the Residential Sales Manager in the Knoxville office and was the plaintiff's immediate supervisor. Henry reports directly to Loper. [Loper Dep. at 13].
As an administrative assistant, the plaintiff was responsible for the "general running of the office," including assisting Henry and the other salespeople, and "making sure that everything that needed to be done was done." [Cox Dep. at 58]. Several duties were added to the plaintiff's job responsibilities over the years, including ordering literature, covering the phones on a more frequent basis, managing accounts payable, handling questions about insurance, and keeping up with program changes. [Id. at 170-71]. The plaintiff admitted that she "had a pretty full plate." [Id. at 173].
In May, 2003, Carrier hired 37-year-old Bridgett Johnson ("Johnson"). Johnson testified that she was hired as an administrative assistant in the Knoxville office. [Johnson Dep. at 9]. The plaintiff, on the other hand, claims that Johnson was hired as a receptionist, whose duties were to answer the phones and handle the mail. [Cox Dep. at 59, 65]. Johnson's starting salary was higher than the plaintiff's. [Id. at 67]. Christa Carsello ("Carsello"), the Human Resources Manager, explained that this was because Johnson had more education, experience, and computer skills. [Carsello Dep. at 94-95].
The plaintiff claims that soon after Johnson was hired, Johnson began performing some of the plaintiff's job duties. For example, the plaintiff discovered an email on Johnson's desk indicating that Johnson was working on updating the office's antiquated phone system, a project on which the plaintiff had been working. [Cox Dep. at 77-78]. The plaintiff did not talk to management about this incident, reasoning that if "they had given it to [Johnson] to do, then I was going to let her go ahead and do it." [Cox Dep. at 82].
Another one of plaintiff's job duties was to keep up with new dealer accounts. In July, 2003, the plaintiff discovered an email on Johnson's desk from Shirley Cronkite, a temporary administrative assistant in the Chattanooga office, regarding a spreadsheet that was to be kept on new dealers. The email stated that the plaintiff was to help Johnson fill out this information. The plaintiff contacted Cronkite to ask why she needed the information, and Cronkite told her that Johnson would be keeping this information up to date from now on. [Doc. 12 Ex. 6].
In August, 2003, the plaintiff learned that Johnson was ordering food for a Lunch & Learn program put on by Carrier for one of its clients in Oak Ridge. Previously, the plaintiff had prepared the lunches herself for these programs through her catering business, but that ceased when Henry decided that it was a conflict of interest. [Doc. 12 Ex. 8; Cox Dep. at 95].
In September, 2003, the plaintiff learned that Johnson was going for training on the administration of HVAC Partners, a website program for Carrier dealers. Previously, the plaintiff had been the program's administrator. [Cox Dep. at 111-12]. The plaintiff called Carsello in Human Resources and asked why Johnson was being sent for training instead of her. Carsello told her that Henry would come talk to her about it. Henry told the plaintiff that he wanted Johnson to be brought up to speed on the program because Johnson would be doing the online warranties. [Id. at 115].
The plaintiff stated that Henry was very angry with the plaintiff for raising the issue with Carsello first. During this discussion, Henry told her that she was doing a good job and asked her why she could "not just be satisfied with that." [Id. at 119].
B. Job Performance Issues
Prior to January, 2004, the plaintiff had never been disciplined. [Cox Aff. ¶ 18]. In January, 2004, the plaintiff received a Performance Alert [Doc. 12 Ex. 10] from Scott Henry regarding the plaintiff's absence from work. The Performance Alert states that the plaintiff had been "absent during critical times" on several recent occasions, and the plaintiff was admonished to call in and speak with Henry directly when she called in sick and not to have any one call in for her. The plaintiff wrote on the form that she was not aware that she had to speak with Henry personally. [Id.; Cox Dep. at 151]. The plaintiff testified that other employees had called in requesting sick leave without speaking to Henry directly. [Cox Dep. at 152]. Henry also noted in the Performance Alert that the plaintiff's "attitude and teamwork requires improvement as well so that you are not the source of frustration, or controversy for others." The Performance Alert further states: "Immediate improvement is required, or further action, up to and including termination will be taken." [Doc. 12 Ex. 10].
During the meeting on this Performance Alert, Henry told the plaintiff that she had a negative attitude, and that other employees viewed her as inaccessible because she kept her office door closed. The plaintiff explained that she was often cold at work and had a space heater under her desk, so she would close her door to keep the heat in. [Cox. Dep. at 155]. Henry also told her that she had become a source of frustration for other employees in the office, and that some employees had complained to him that they did not want to use the plaintiff for tasks because of her attitude. [Id. at 156, 157].
Glenn Loper performed a Performance Evaluation on the plaintiff in January, 2004. [Doc. 12 Ex. 11]. In this review, Loper noted that the plaintiff was "out of the office too much" due to illness and taking too long to run business errands. [Loper Dep. at 24, 27]. He also noted that the plaintiff did a "[g]ood job when available," but that she was "[o]ut of [the] office wa[y] too much to depend on for important meetings." Loper testified that this latter comment was in reference to a January, 2004 strategy meeting that had been scheduled in Knoxville for all of Carrier's sales people in the East Tennessee region. Loper sent the plaintiff quota information to put in a particular format, but the plaintiff did not complete the project in time for the meeting because she was out sick. [Loper Dep. at 40-41]. Loper testified that he "had to improvise, and go in there and get it done myself." [Id. at 41]. He did not give her a written reprimand for this. [Id.].
Loper also described an incident where the plaintiff did not get the price books out on time, which cost Carrier some money because dealers could not be charged the new, higher prices until the price books were sent out. [Id. at 42, 84]. The plaintiff was supposed to prepare the price books, but did not finish them before going on vacation. [Henry Dep. at 18]. Before returning to work from vacation, the plaintiff also took some sick time. [Id. at 81]. However, she did not communicate to anyone that the price books still needed to be done. [Id. at 81-82]. Henry talked to the plaintiff about this issue, but no formal action was taken against the plaintiff. [Loper Dep. at 42].
In the overall objective rating of the Performance Evaluation, Loper noted that "[w]ith a better attitude and a proactive approach to helping all other employees her performance could improve." [Doc. 12 Ex. 11]. Loper explained in his deposition that this comment was in reference to the fact that sometimes the plaintiff would respond to requests for help from salespeople by stating that she did not have time, and he felt that she needed to be more proactive in helping all salespeople in the office. [Loper Dep. at 49-50]. Loper testified that every salesperson in the office had complained to him about the plaintiff's unwillingness to help. [Id. at 51]. He felt that the plaintiff had a "bad attitude towards the salespeople" and that the salespeople "couldn't depend on her to help, so they went somewhere else" because it was easier to ask another employee for assistance than it was to ask the plaintiff. [Id. at 66]. It was Loper's impression that the plaintiff did not seem to care if the company succeeded. [Id.].
Henry received complaints from salespeople about the plaintiff's lack of timeliness and accuracy. [Henry Dep. at 69]. Henry felt that the plaintiff was not proactive in seeking work or showing initiative. [Id. at 80].
C. Hostile Work Environment
The plaintiff alleges that she was subjected to a hostile work environment. For example, during a business meeting in Gatlinburg, an intoxicated Scott Henry said to the plaintiff, "hey big momma, what are you doing up this late . . . old ladies like you should be in bed right now." Henry made this comment in front of several other Carrier employees, as well as the plaintiff's husband. [Cox Dep. at 36-37]. Cox did not report this incident to any management at Carrier. [Id. at 39, 40].
The plaintiff also recalled that Henry would make lewd remarks and use foul language in speaking to other employees, and that he had on occasion said things to her that she considered to be "obscene." [Id. at 39].The plaintiff could not recall specific comments Henry made, only that he used curse words in speaking with other employees and in Monday morning meetings. [Id. at 41]. She testified that after the Performance Alert in January, 2004, Henry "deliberately said things and did things knowing that I would overhear or that I was in the room to purposefully intimidate me or to make me feel uncomfortable." [Id. at 275].
The plaintiff also testified that Henry's attitude toward her contributed to a hostile work environment. She recalled that if she went in to ask him a question, Henry would give a "very agitated, irritated type response," and that he was sometimes gruff or short-tempered with her. [Id. at 42]. The plaintiff testified that Henry "made it very difficult to ask questions to him" by not giving complete answers or directions for what he wanted. [Id. at 43]. She also recalled that he would make comments showing a negative attitude towards women, including sexually explicit jokes. The plaintiff could not recall any specific statements or jokes that were made. [Id. at 50]. She estimated that she had overheard Henry make inappropriate jokes approximately five to ten times in the past year. [Id. at 51]. She did not report these incidents to Human Resources because she "didn't feel they would listen." Instead, she would just leave the room when the jokes were made. [Id. at 52].
The plaintiff claims that Johnson also contributed to the hostile work environment by taking over some of the plaintiff's job duties. The plaintiff stated that she was not sure that Johnson was doing this because Henry instructed her to do these tasks or whether Johnson herself had asked to do them. [Id. at 55]. The plaintiff also stated that on some days, Johnson would not speak to her at all. [Id.].
The plaintiff also claims that Henry's supervisor, Glenn Loper, contributed to the hostile work environment. The plaintiff claims that Loper would occasionally use four-letter words in the office. She also claims that Loper's performance evaluation of her also contributed to the hostile work environment. [Id. at 56].
D. Plaintiff's Medical Conditions
The plaintiff has diabetes and high blood pressure. [Id. at 231]. The plaintiff testified that she is "pretty much" able to live a normal life by controlling her diet and taking insulin. [Id. at 233-34]. She does have to go to the bathroom about once an hour because of her diabetes, but she stated that this does not affect her job one way or the other. [Id. at 235]. The plaintiff's high blood pressure sometimes gives her headaches and makes her feet and legs swell. The plaintiff takes medication to help alleviate these symptoms. Medication keeps her blood pressure within an acceptable range ...