The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
This plaintiff's discrimination complaint is before the Court to address the motion for summary judgment filed by the defendant and the motion to strike the affidavit of Joe Keenan. [Docs. 31and 58].
The plaintiff filed this complaint after having been denied various promotions during the course of her employment with the defendant, General Electric ("GE"). Additionally, the plaintiff alleges that in late March, 2004, she was demoted from her position of payroll administrator/administrative assistant to a split position in which she spends a portion of her working hours in her former office position at the same rate of pay, and spends a portion of her hours in the plant as an equipment operator at a reduced rate of pay. Plaintiff avers that each of her denials for promotions and her subsequent demotion are as a result of her age and sex in violation of the Age Discrimination and Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Tennessee Human Rights Act ("THRA"), Tenn. Code Ann. § 4-21-101 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. Plaintiff alleges that male employees in the same split positions as the plaintiff were paid at a higher rate of pay than female counterparts in violation of the Equal Pay Act, 29 U.S.C. § 206(d). Finally, the plaintiff has alleged a state law claim for intentional infliction of emotional distress.
The most recent application made by the plaintiff for a promotion was in 2003 for the position of human resources manager. That position was awarded to another candidate and that candidate began working in the position on August 4, 2003. The plaintiff filed her employment discrimination claim with the Tennessee Human Rights Commission ("THRC") on September 13, 2004, and the complaint was also assigned an EEOC number on that date. Following the issuance of a right to sue letter, the plaintiff's complaint was timely filed in the Circuit Court for Hamblen County, Tennessee on March 10, 2005, and then removed to this Court.
Summary judgment is appropriate when "there is no genuine issue of material fact." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of proving that no material facts exist, and the court must draw all inferences in a light most favorable to the non-moving party. A court may grant summary judgment when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Once the moving party has proved that no material facts exist, the non-moving party must do more than raise a metaphysical or conjectural doubt about issues requiring resolution at trial. Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.1992) (citations omitted).
In accordance with long standing summary judgment principles, this Court must construe the evidence in this record most favorably for the plaintiff because she is the litigant opposing summary judgment. E.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88(1986); Scott v. Clay County, 205 F.3d 867, 871 (6th Cir.2000). As explained by the Sixth Circuit in Scott,
"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). See also Eastman Kodak v. Image Technical Services, 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992); Adams v. Metiva, 31 F.3d 375, 378-79 (6th Cir.1994). (emphasis added) Id. at 871.
GE contends that all of plaintiff's "failure to promote" claims are time barred. More specifically, GE contends that plaintiff's claims accrued, at the latest, on April 4, 2003, and that she did not file any of her claims in a timely fashion.
In order to assert a claim under Title VII, the charge of employment discrimination must be filed directly with the EEOC within 180 days of the alleged discriminatory event. 42 U.S.C. § 2000(e)-5(e). Alternatively, a plaintiff can file the complaint with the THRC within 240 days from the day of the alleged discriminatory event. Tenn. Code Ann. §§ 4-21-104 -- 4-21-401, 42 U.S.C. § 2000(e)-5(c) and (e). Each of the events giving rise to the plaintiff's failure to promote claims occurred more than 240 days prior to the filing of her Tennessee Human Rights Commission complaint on September 13, 2004. The most recent discriminatory event alleged as to a denial of promotion occurred on August 4, 2003, the date on which the candidate hired for the position began work, more than one year prior to the filing of her THRA complaint.
An ADEA claim must be filed with the EEOC within 300 days of the alleged discriminatory action. 29 U.S.C. § 626(d). Again, the plaintiff's latest possible date for the accrual of an action for a failure to promote was August 4, 2003, which occurred more than 300 days prior to the filing of her THRC complaint.
Claims for discrimination under the THRA must be filed within one year of the accrual of the claim. Tenn. Code Ann. § 4-21-311(d). Clearly, the plaintiff's most recent failure to promote claim, as discussed above, occurred more than one year prior to the September 13, 2004 filing of her Tennessee Human Rights Commission complaint.
The plaintiff argues that the failures to promote were part of ongoing actions which tolled the statute of limitations. However, the Supreme Court has specifically rejected this argument in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In Morgan, the Court held that discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. Id. at 114. The Court went on to recognize that "discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are ...