The opinion of the court was delivered by: Leon Jordan United States District Judge
This civil action was initiated on November 3, 2004, in the Circuit Court of Anderson County, Tennessee, and was removed on the basis of diversity jurisdiction [doc. 1]. Now before the court is defendant BWXT-Y12's ("BWXT") motion for summary judgment [doc. 25]. Plaintiff Royal D. Cline ("Cline") has filed a response [doc. 41], to which BWXT has submitted a reply [doc. 38]. For the reasons stated herein, defendant's motion will be granted and this cause will be dismissed.
Background The record and issues in this case are voluminous. The evidence will be discussed in greater detail below where relevant. Highly condensed, the facts are as follows.
Cline was born in 1943. Since November 2000, BWXT has been the management and operating contractor of the United States Department of Energy's ("DOE") Y-12 National Security Complex ("Y-12") in Oak Ridge, Tennessee. Y-12 is, in part, this nation's "primary site for enriched uranium processing and storage, and one of the primary manufacturing facilities for maintaining the U.S. nuclear weapons stockpile." See Notice of Intent, 70 Fed. Reg. 71271 (Nov. 28, 2005). Y-12 "is used for the fabrication and assembly of nuclear weapons components and for research and development associated with these activities." Ensor v. Rust Eng'g Co., No. 89-5106, 1991 WL 93188, at *1 (6th Cir. June 4, 1991).
According to his resume, Cline has a high school diploma, no college degree, and miscellaneous professional certifications. He worked from 1969 through 1994 for predecessor Y-12 contractors Lockheed Martin Energy Systems ("LMES"), Martin Marietta, and Union Carbide. From 1994 through 2000, he worked at DOE's Oak Ridge National Laboratory ("ORNL"), first for LMES and then for its successor UT-Battelle, LLC.
Cline was laid off by UT-Battelle on December 1, 2000, during a time of post-Cold War budgetary reductions. In late November 2001, he and sixteen other laid off workers filed an age discrimination suit in this court. See Baker v. UT-Battelle, LLC, No. 3:01-CV-569. Since his layoff, Cline has expressed interest in a multitude of positions at BWXT but has not been hired.
The present complaint alleges age discrimination and retaliation in violation of the Tennessee Human Rights Act, TENN. CODE ANN. § 4-21-101 et seq. (2005) ("THRA"). Cline contends that BWXT wrongfully failed to hire him for almost 100 positions for which he applied between the years 2000 and 2004. BWXT only formally notified him on one occasion, in November 2004, that he had not been chosen for a particular position. Construing the evidence in the light most favorable to him, Cline was unaware that any other positions had been filled other than a single hiring that occurred in December 2000.
Summary Judgment Standard Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is warranted when "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." Edwards v. Aguillard, 482 U.S. 578, 594 (1987) (quoting Fed. R. Civ. P. 56(c)). The movant may discharge its burden by demonstrating that the non-moving party has failed to establish an essential element of that party's case for which it bears the ultimate burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party need not support its motion with affidavits or other evidence negating the opponent's claim. Celotex, 477 U.S. at 323. Although the moving party has the initial burden, that burden may be discharged by a "showing" to the district court that there is an absence of evidence in support of the non-movant's case. Id. at 325.
The burden then shifts to the non-moving party to present specific facts demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "The 'mere possibility' of a factual dispute is not enough."
Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). In order to defeat a motion for summary judgment, the non-moving party must present significantly probative evidence in support of its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The non-movant's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor. Id. at 255. The court determines whether the evidence requires submission to a jury or whether one party must prevail as a matter of law because the issue is so one-sided. Id. at 251-52. "Where the defendant demonstrates that after a reasonable period of discovery the plaintiff is unable to produce sufficient evidence beyond the bare allegations of the complaint to support an essential element of his or her case, summary judgment should be granted." Mitchell, 964 F.2d at 582.
A party responding to a summary judgment motion cannot rely on mere allegations but instead "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. Pro. 56(e) (emphasis added). "It is well settled that the non-moving party must cite specific portions of the record in opposition to a motion for summary judgment, and that the court is not required to search the record for some piece of evidence which might stave off summary judgment." U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1191 (6th Cir. 1997). The court "is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
Analysis As noted, Cline brings his retaliation and age discrimination claims solely under the THRA. The THRA, inter alia, prohibits age-based employment discrimination and retaliation against persons who are at least forty years of age. TENN. CODE ANN. §§ 4-21- 101(a)(3), (b), 4-21-301(1), 4-21-401(a)(1) (2005). THRA claims are analyzed under the same evidentiary framework used in evaluating federal Age Discrimination in Employment Act ("ADEA") cases. See, e.g., Newsom v. Textron Aerostructures, 924 S.W.2d 87, 96 n.12 (Tenn. Ct. App. 1995).
A number of legal and factual issues relate to some or all of Cline's claims.
Before analyzing the claims individually, the court will first address these underlying issues.
In his response brief, Cline expressly abandons his failure-to-hire claims pertaining to the following jobs:
- ND Analyst, Req. No. 181887 (Two Positions) - Quality Assurance Specialist, Req. No. 198178, Job No. M0305Y (Two Positions)
- Construction QA Specialist, Req. No. 425 (One Position)
- Construction Welding Specialist, Req. No. 426 (One Position)
- Staff Engineer, Req. No. 649, Job No. 576 (One Position)
- Supervisor / Inspector II, Req. No. 895, Job No. 789 (One Position)
- Construction Subcontracts Administrator, Req. No. 1047, Job No. 917 (Two Positions)
- General Supervisor Materials I, Req. No. 1430 (One Position)
- QA Specialist, Req. No. 2002 (One Position)
Accordingly, and without the need for further discussion, summary judgment will be granted on these claims.
B. Statute of Limitations
The THRA has a one-year statute of limitations. See Weber v. Moses, 938 S.W.2d 387, 389-90 (Tenn. 1996). A claimant must file suit no later than one year "after the alleged discriminatory practice ceases . . . ." Tenn. Code. Ann. § 4-21-311(d) (2005).
Under what has been termed the "discovery rule," a statute of limitations commences to run "when the plaintiff knows or in the exercise of reasonable care and diligence should know that an injury has been sustained as a result of wrongful or tortious conduct by the defendant." Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 143 (Tenn. 2001) (citation and quotation omitted) (emphasis added). The courts of Tennessee apply the discovery rule in THRA employment cases. See id. at 144 ("[T]he discovery rule applies to retaliatory discharge cases."); see also Sevier v. Turner, 742 F.2d 262, 272-73 (6th Cir. 1984)
(In Tennessee cases brought under federal civil rights laws, the statute of limitations begins to run when the plaintiff knows, or has reason to know through the exercise of reasonable diligence, of the injury that is the basis of his action.).
Cline argues, under two distinct theories, that the discovery rule should not apply in this case. Citing Weber, he first contends that the statute of limitations does not commence until a defendant has given "unequivocal notice" of its adverse action to the claimant. Cline is incorrect. Although timeliness in Weber was connected to the date of unequivocal notice, the holding (as in all discrimination actions) was fact-dependent. The Supreme Court has explained that employment discrimination cases "present widely varying circumstances," and statute of limitations analyses must be conducted on a case-by-case basis. See Del. State Coll. v. Ricks, 449 U.S. 250, 258 n.9 (1980).
In Weber, the employer gave notice of firing almost one month before the actual termination date. See Weber, 938 S.W.2d at 388. Weber brought suit within one year of his firing but not within one year of notice. Id. at 388-89. The complaint was thus time-barred because Weber did not file within one year of the earlier of the two events - "when the plaintiff received unequivocal oral notice of the decision to terminate his sales manager contract." Id. at 388, 391-93.
The Weber decision does not, as Cline now appears to argue, require "unequivocal notice" in all cases. The Supreme Court of Tennessee post-Weber has explained that "Weber . . . makes clear that the discovery rule applies to retaliatory discharge cases." Fahrner, 48 S.W.3d at 144. Again, under the discovery rule, the clock begins to run either when actual notice is received or when the plaintiff should have known of his injury by exercising reasonable diligence - whichever is earlier.
Cline next contends that all of BWXT's challenged decisions should be connected as "continuing violations." This argument is also unavailing.
"The doctrine of continuing violations provides that a plaintiff may be granted relief for a time-barred act by linking a series of related acts, one or more of which falls within the limitations period." Frazier v. Heritage Fed. Bank for Savings, 955 S.W.2d 633, 637 (Tenn. Ct. App. 1997). The discovery rule does not apply in continuing violation cases. See Booker v. Boeing Co., 188 S.W.3d 639, 649 (Tenn. 2006). "The inquiry is whether the earlier acts were related closely enough to constitute a continuing violation or were merely discrete, isolated, and completed acts which must be regarded as individual violations." Frazier, 955 S.W.2d at 638 (citation and quotations omitted). Courts should consider the following factors:
1. Subject matter - whether the alleged acts involve the same type of discrimination;
2. Frequency - whether the alleged acts were recurring (as in a regular paycheck) "or more in the nature of an isolated work assignment or employment decision"; and
3. Degree of permanence - whether the alleged acts had "the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?"
Id. (citation and quotation omitted).
The first of these factors weighs in Cline's favor, as the acts complained of are the same type of discrimination - failure to hire. However, the remaining factors dictate that this is not a "continuing violation" case. The challenged actions were not, like a paycheck, regularly recurring. Instead, they were "isolated . . . employment decision[s]." See id. Moreover, each bore an independent degree of permanence. Refusals to hire are discreet acts, each "a separate actionable unlawful employment practice," and they are "not actionable if time barred, even when they are related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14 (2002) (quotation omitted).*fn2 Particularly in light of Cline's admission that he believed as early as December 2000 that BWXT was discriminating against him [Cline Dep. II at 95-97], this is simply not a case where "the plaintiff had no reason to believe he was a victim of discrimination until a series of adverse actions established a visible pattern of discriminatory treatment." Frazier, 955 S.W.2d at 638 (citation and quotation omitted).
Cline therefore cannot successfully invoke the continuing violation doctrine. The court will apply the discovery rule in deciding whether his claims are time-barred.
C. Section 3161 Certification
Section 3161 of the National Defense Authorization Act (presently codified at 50 U.S.C. § 2704(c)(2)) creates a DOE hiring preference for laid off workers. According to BWXT's staffing representative Emily Nunn, BWXT follows DOE's 1998 "[Oak Ridge Operations] Contractor Preference in Hiring Procedures" ("ORO Procedures"), which provides in material part that the § 3161 preference is not applicable when a contractor fills vacant positions through internal means, such as promotion or reassignment; it applies only to filling jobs through external new hires. . . . . . . Where a displaced employee with the hiring preference and other external candidates are considered to have approximately equal qualifications, preference should be given to the individual with the hiring preference. [Nunn Dec., ¶ 11, ex. 2, p. 1, 4]. It is undisputed that Cline was eligible for the § 3161 preference throughout the relevant time period.
Cline argues that his § 3161 certification should have "set him apart," even regarding jobs that were open only to internal applicants. He has not, however, cited evidence that BWXT did not evenly follow the ORO Procedures pertaining to § 3161 or, that as a DOE contractor, BWXT was not required to do so. An employer is permitted to enforce a fair and ...