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Plank v. Shaw Industries

February 5, 2007


The opinion of the court was delivered by: Judge Mattice


Plaintiff Thomas Willard Plank brings this action against Defendant Shaw Industries, Inc. ("Shaw"), alleging age discrimination and retaliation in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the Tennessee Human Rights Act ("THRA"), Tennessee Code Annotated §§ 4-21-101, et seq. Before the Court is the Motion of Shaw Industries, Inc. for Summary Judgment. Plaintiff has not filed a response to this motion, and the Court deems Plaintiff to have waived opposition to the motion pursuant to Local Rule 7.2.

For the reasons explained below, the Motion of Shaw Industries, Inc. for Summary Judgment is GRANTED.


Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The moving party bears the initial burden of demonstrating that no genuine issue of material facts exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the nonmoving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Id. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 248-49; Nat'l Satellite Sports, 253 F.3d at 907. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. If the Court concludes that a fair-minded jury could not return a verdict in favor of the nonmoving party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).


The relevant facts, viewed in the light most favorable to Plaintiff, are as follows.

Plaintiff Thomas Willard Plank was employed by Defendant Shaw and held the position of Human Resources Manager and Safety Manager. (Court Doc. No. 10-5, Plank Dep. 6-7; Court Doc. No. 10-4, Wallace Aff. ¶¶ 5, 7.) In his capacity as Human Resources Manager, Plank was responsible for carrying out Shaw's human resources policies with regard to all personnel and had a role in the hiring and firing of employees at Shaw's Decatur Plant. (Plank Dep. 99-100; Wallace Aff. ¶¶ 6-7.) In January 2005, Shaw made the decision to divide the responsibilities associated with human resources and safety into two separate positions, and Plank expressed his interest in being the full-time safety manager. (Plank Dep. 6-7.) At the time of his termination, however, Plank apparently was still performing the responsibilities associated with both positions. (Wallace Aff. ¶ 5.) At all relevant times, Plank's supervisors were Chris Henry and Robert Wallace. (Plank Dep. 11.)

At some point prior to his termination, Plank attended a human resources seminar, where another Shaw employee, Al Scruggs, asked him: "Willard, what-when we get where we can't keep up with the pace, what do you need to do?" (Id.) Plank responded, "Well, I guess you need to get out." (Id.) Scruggs replied, "That's correct. You need to get out." (Id. at 11-12.) Plank also relates that another Shaw employee, Paul Richard, made a similar statement in Plank's presence, but which was directed to a group of human resources managers and not to Plank specifically. (Id. at 12-13.) Richard's statement was essentially that if a person cannot keep up, he should get another job. (Id.) Plank took this statement personally because he has been with the company for a long time, but he also acknowledges that there may be reasons other than age that could prevent someone from keeping up. (Id. at 14-15.) On another occasion, approximately two or three years ago, Scruggs told Henry that he needed to find another human resources manager. (Id. at 15.) Plank does not know why Scruggs made that statement. (Id.) Scruggs also told Plank at another time that it is not good to keep the same people around and that the company needs younger people with new ideas. (Id. at 135-36.) Other than the above-described comments, Plank does not recall any other comments about his age by any other Shaw employees. (Id. at 16.)

On February 23, 2005, Tracy Bayless, an owner and principal of Dixie Vending, called Wallace to complain about Plank's interference with Dixie Vending's relationship with one of its employees. (Court Doc. No. 10-2, T. Bayless Aff. ¶ 4.) For a number of years, Dixie Vending has had a contract with the Shaw Decatur Plant to supply the vending machines used by employees. (Court Doc. No. 10-3, C. Bayless Aff. ¶ 4.) Plank was Dixie Vending's contact at Shaw, and he was responsible for the vending account. (Id. ¶¶ 5-6.) At some point, Dixie Vending hired Plank's son, Chris, as an employee, and assigned him to handle the Shaw Decatur Plant vending business. (Id. ¶ 7; T. Bayless Aff. ¶ 5.) Thereafter, on multiple occasions, Plank told both Tracy Bayless and Charles Bayless, who is also an owner and principal of Dixie Vending, that he would terminate Shaw's contract with Dixie Vending if Dixie Vending terminated or disciplined Chris. (C. Bayless Aff. ¶¶ 8-11; T. Bayless Aff. ¶¶ 6-7.) Tracy Bayless reported these statements by Plank to Wallace.

(T. Bayless Aff. ¶ 10; Wallace Aff. ¶¶ 10-14.)

Upon receiving Bayless's complaint, Wallace initiated an investigation. (Wallace Aff. ¶ 15.) During the course of such investigation, Wallace discovered that Plank had failed to report on his Conflict of Interest Form that his son was an employee of Dixie Vending. (Id. ¶ 16.) On March 14, 2005, Wallace spoke with Plank about his omission from the Conflict of Interest Form and then sent Plank home pending the completion of the investigation. (Id. ¶ 17; Plank Dep. 17-18.) At this meeting, Wallace did not make any age-related comments. (Plank Dep. 35.) During his deposition, Plank stated that he did not list his son's employment with Dixie Vending on his Conflict of Interest Form because he did not think anything about it and because everyone at the Decatur Plant knew that his son worked there. (Id. at 52.) On either March 16 or 17, 2005, Wallace contacted Plank by telephone and offered Plank the option of resigning. (Wallace Aff. ¶ 18; Plank Dep. 21.) Plank refused to resign, and Wallace told Plank that Shaw was terminating his employment. (Wallace Aff. ¶ 19; Plank Dep. 21.) Wallace states in his affidavit that Plank was terminated "for violation of Company ...

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