The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment. [Doc. 40].
This is a discrimination and retaliation action brought by the plaintiff Sharon Avery ("Avery") against her former employer, IdleAire Technologies Corporation ("IdleAire"). Specifically, the plaintiff asserts causes of action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"); the Equal Pay Act, 29 U.S.C. § 206(d); and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA") for sexual harassment, gender discrimination, pay equity discrimination, age discrimination, failure to promote, hostile work environment harassment, and retaliation. Additionally, the plaintiff asserts claims of outrageous conduct and negligent infliction of emotional distress under Tennessee state law. [Doc. 1].
IdleAire admits that it is an "employer" within the meaning of the various federal statutes under which the plaintiff brings this action; that the plaintiff filed a charge with the EEOC; and further, that the EEOC issued the plaintiff a Notice of Right to Sue on April 28, 2004. The subject matter jurisdiction of the Court is not in dispute. [Doc. 7].
After carefully considering the entire record, the Court concludes that summary judgment in favor of IdleAire is proper with respect to the plaintiff's failure to promote claims, her claims that she was terminated due to her age and gender, and her state law claims for outrageous conduct and negligent infliction of emotional distress. For the reasons that follow, the Court finds that there are genuine issues of material fact which preclude summary judgment with respect to the plaintiff's hostile work environment claim and her retaliation claim. Accordingly, the defendant's Motion for Summary Judgment [Doc. 80] is GRANTED IN PART and DENIED IN PART.
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 and several IdleAire employees, as well as other testimony and exhibits filed with the Court.
IdleAire is a Tennessee corporation formed in 2000, with its headquarters located in Knoxville, Tennessee. IdleAire has developed a product and service referred to as "advanced travel center electrification." This service is installed in truck stops and travel centers and provides electrical power, air conditioning, and an array of other services to the cabs of parked diesel-powered trucks, enabling drivers to turn off their engines while parked for extended periods of time. Use of IdleAire's service eliminates the need for continuous and extended idling, thereby providing an environmental benefit, as well as a fuel savings for truck operators. [Crabtree Dec. ¶3]. IdleAire offers its services out of travel centers, fleet terminals, and distribution centers with which it has a contract. IdleAire's technology is in high demand and has expanded to over 29 states across the country. At present, IdleAire operates out of at least 107 locations, including the Watt Road travel center in West Knox County, Tennessee, where the plaintiff was employed. IdleAire opened the Watt Road location at Petro's Stopping Center in July, 2002. [Id. at ¶4].
IdleAire employees are located at every travel center where IdleAire operates. IdleAire employs Site Representatives to handle selling the service to truck drivers, hooking up the IdleAire technology to the customer's truck, cleaning the equipment after use, and monitoring the lot for any technical problems. Each location has several employees on shift at all times, and each facility is open twenty-four hours a day. [Id. at ¶5].
B. Plaintiff's Employment with IdleAire
The plaintiff was hired as a full-time Site Representative in October 2002 at IdleAire's Watt Road location. [Avery Dep. at 24; Patterson Dec. at ¶2]. As a Site Representative, the plaintiff was responsible for selling IdleAire services to truck drivers, hooking up customers to IdleAire service, accepting payment, keeping records of sales and service, and performing other duties related to IdleAire's operation. [Pattern Dec. at ¶2].
The plaintiff requested to transition into a part-time position with IdleAire in November 2002 in order to accept full-time work elsewhere. IdleAire consented to the plaintiff's request, and the plaintiff continued to work part-time at IdleAire while she worked full-time for another company until February, 2003. At that time, the plaintiff returned to full-time employment with IdleAire. [Avery Dep. at 24-25, 217-18; Ex. 12].
In June 2003, the plaintiff was promoted to Shift Leader, a position one level below site supervisor. In this position she continued to perform the duties of a Site Representative, but with added supervisory responsibilities, particularly at times when the Site Supervisor was absent from the site. She continued in this position until she was terminated on September 12, 2003. [Patterson Dec. at ¶3]. At the time of her termination, the plaintiff was more than forty (40) years old.
C. Plaintiff's Application for Site Supervisor Position
In early 2003, the Site Supervisor position at the Watt Road facility became available. The Site Supervisor's responsibilities included providing on-site management, staffing, training, parts and supply inventory, expense and control, public relations, and support of the IdleAire system. Additionally, the Site Supervisor was charged with providing on-site support and service to the professional truck drivers using IdleAire's services. [Hunt Dec. at ¶4]. Promotion decisions related to this particular Site Supervisor position were made by Gerry Cooksey ("Cooksey"), Director of Training; Bill Buzbee ("Buzbee"), then Vice-President of Operations; and Steve Hunt ("Hunt"), Area Sales Manager. [Hunt Dec. at ¶¶2, 3, 4].
Per IdleAire's standard procedure, the Site Supervisor position was posted on the IdleAire intranet (a company internal communication system), and interested employees were invited to apply. Five IdleAire employees, including the plaintiff and another employee by the name of Eric Patterson ("Patterson"), applied for the vacant Site Supervisor position after the vacancy was posted. The applicants were interviewed by Buzbee, Cooksey, and Hunt. They used a structured interview process that required each applicant to answer the same predetermined questions. [Hunt Dec. at ¶5]. Patterson was promoted to the Site Supervisor position on February 11, 2003. [Patterson Dec. at ¶¶1, 4].
At the time that she applied for the Site Supervisor position, the plaintiff was a part-time employee. [Avery Dep. at 24-25]. She held a certificate of completion from the Lee School of Business in Universal City, Texas. She had previous work experience in the trucking industry, including being an over-the-road truck driver. [Avery Dep. at 5, 6, 29]. The plaintiff had also been a secretary, EEO officer, and payroll officer for a company called Milbourn Construction from 1991 to 1993. The plaintiff and her husband also owned their own business, Franklin & Howell, from 1993 through 1998, a business which had approximately 20 to 25 employees. The plaintiff and her husband also had previously owned a small trucking company called A&A Trucking. [Avery Dep. at 28-35].
Patterson, who was born on February 21, 1964, had been employed as a full-time employee at IdleAire since July 2002 and was one of the initial employees hired for the Watt Road location. Prior to working at IdleAire, Patterson had worked as an Area Manager for U.S. Cellular for approximately one year, a store manager for Dick's Sporting Goods for approximately one year, and as a manager for Toys R Us/Babies R Us in California and other states for seven years. [Patterson Dec. at ¶5]. From November 2002 until February 2003, Patterson worked as a Site Representative and as a fill-in Shift Leader, primarily for the third shift. IdleAire's third shift was the site's busiest, because truck drivers frequently stopped at the Watt Road location to park and sleep during that shift. On shifts when Patterson served as the fill-in Shift Leader, he performed all of the duties required by the position. [Id. at ¶6].
According to Cooksey, IdleAire's Director of Training, Patterson's interview performance, past work experience, and performance with IdleAire were deemed the best of all the applicants who applied for the position. Patterson was able to demonstrate an excellent knowledge of management, possessed better communication skills than the other applicants, and had impressive experience and qualifications related to the position. [Cooksey Dec. at ¶4]. Hunt, IdleAire's Area Sales Manager, testified that he believed those traits to be essential to the Site Supervisor position. [Hunt Dec. at ¶7].
D. Plaintiff's Application for Area Sales Manager
The position of Area Sales Manager for IdleAire's Texas market opened for application in August 2003. [Avery Dep. at 152]. An Area Sales Manager is responsible for managing multiple sites in the area. In 2003, IdleAire had multiple sites in Texas, which were managed by the Area Sales Manager for IdleAire's Texas market. [Patterson Dec. at ¶7].
The plaintiff submitted an application for the Texas Area Sales Manager position on September 4, 2003. [Avery Dep. at 154]. At the time that she applied for the position, she was employed as a Shift Leader, a position two levels below an Area Sales Manager. [Patterson Dec. at ¶8]. The plaintiff testified that Patterson had told her, prior to applications being accepted in September, that James Abernathy ("Abernathy") would be the one to get the Texas position. [Avery Dep. at 156].
After the plaintiff applied for the Texas Area Sales Manager position, Patterson showed her resume to other employees and made fun of the plaintiff's attempts at seeking a promotion. [Avery Dep. at 107]. Patterson specifically made comments about the plaintiff such as, "Her be a district manager? Ha!" [Stilwell-Clemons Dep. at 29-30]. Patterson received a verbal reprimand for this conduct. [Patterson Dep. at 22-23].
Buzbee and Cooksey were the decisionmakers responsible for selecting the successful candidate for the Texas Area Sales Manager position. [Cooksey Dec. at ¶5]. Abernathy was awarded the Texas Area Sales Manager position. [Avery Dep. at 152]. At the time that he applied for the position, Abernathy was the Site Supervisor at IdleAire's Atlanta location, the highest grossing IdleAire facility at the time. According to a declaration filed by Cooksey, Abernathy's leadership and management skills were considered instrumental in the success and profitability of the Atlanta location that he managed. [Cooksey Dec. at ¶6]. Cooksey further testified that Abernathy's experience, the success of the Atlanta location, his experience in managing new site, and his interview performance led the decisionmakers to conclude that he was the best choice for the position. [Id.].
E. Plaintiff's Hostile Work Environment Complaints
1. Pornography At The Workplace
IdleAire's Watt Road location had only one computer for all employees to share. While each employee had access to the computer, only those employees with a need were supposed to use the computer. According to Patterson, that meant each Site Representative clocked in and clocked out on the computer each day, but had no other business reason to access the computer. Absent unusual circumstances involving site operations, only the Area Sales Manager, Site Supervisor, and Shift Leader had a need to use the computer for any reason other than to clock in and clock out. [Patterson Dec. at ¶13].
While clocking in, the plaintiff observed pornographic pop-ups on the computer screen. The plaintiff testified that this occurred multiple times and that she began to see a pattern where it would happen more often after certain male employees had worked. [Avery Dep. at 121, 122]. The plaintiff testified that she observed pornographic pop-ups on the computer screen approximately less than 25% of the time that she clocked in and clocked out from the beginning of her employment until May 2003. [Avery Dep. at 123, 134]. The plaintiff testified that she saw much more pornography on the company computer after becoming Shift Leader because she used the computer more. [Avery Dep. at 70-71, 118]. She testified that from May 2003 until her termination in September 2003, she saw adult-related pop-ups approximately thirty percent of the time that she used the computer. [Id.]. The pop-ups could be removed by clicking on the "X" located at the top of the pop-up box. The plaintiff estimated that this process took about fifteen seconds to complete. [Id. at 73-74]. The plaintiff attached several examples of the pornography that she viewed on the company computer as exhibits to her complaint. [Doc. 1, Attachments].
The plaintiff testified that she had complained about the pop-ups "over the months" but that nothing had ever been done. Specifically, she testified that she complained to her supervisors, Patterson and Hunt, as well as to Paul Boyd, the Vice-President of Finance (who also served as IdleAire's human resources person), and Claude Ramer, the defendant's attorney. The plaintiff testified that Boyd advised her that if she did not like the conditions at IdleAire that she could leave. [Avery Dep. at 111, 113]. The plaintiff never saw a decrease in the pornography after making complaints. [Id. at 137].
In July 2003, the plaintiff talked to Patterson about the adult-related pop-ups appearing on the computer. [Avery Dep. at 126-27]. After this discussion, Patterson contacted the IdleAire Information Technology ("IT) Department. [Patterson Dec. at ¶14]. Greg Stooksbury, a member of the IT Department, visited IdleAire's Watt Road location within two days of the plaintiff's complaint and worked on the computer. Patterson states in his declaration that as a result of Stooksbury's actions, the number of adult-related pop-ups decreased significantly. [Id.]. The plaintiff testified that to her knowledge, the IT Department became involved not because of her complaints but because one of IdleAire's employee crashed the computer system by looking at pornography. [Avery Dep. at 137].
The computer's internet history indicates that pornographic websites were visited by other employees. In August 2003, the plaintiff voluntarily reviewed the history of websites visited by other IdleAire employees on the Watt Road computer. These websites depicted nudity and sexually explicit activity. She made copies of the adult-related pop-ups and pornographic websites that she observed in the computer's internet history. [Avery Dep. at 69-70, 135-37]. Avery testified that she printed off some of the websites in front of Jeremy White ("White"), who was the Shift Leader in charge of the plaintiff's shift. When the plaintiff told White that the pornography needed to stop, White just laughed. [Avery Dep. at 72-73].
While the plaintiff did not ever observe a pornographic web site left on the computer screen, she did on one occasion see two pornographic pictures printed out and laying near the computer. [Avery Dep. at 133]. The plaintiff asked other employees who were present where the pictures had come from, and the employees advised the plaintiff that the Shift Leader at the time, Keith Pratt, had printed them. [Id.].
Lydia Baker, a Petro's employee at the Watt Road location, was also aware of the pornography. She found computer printouts of pornographic scenes laying on a shelf in the janitor's closet when she went to check on supplies. [Baker Aff. at ¶2].
Other employees, including Karen Stilwell-Clemons, Paul Clemons, and Spencer Cobb, were offended by the pornography and complained about it as well. [Stilwell-Clemons Dep. at 93; Paul Clemons Dep. at 17; Cobb Aff. at ¶3].*fn1 Stilwell-Clemons testified that the pornography was an everyday occurrence. She and another IdleAire employee, Lisa Hill, also found printouts of pornography left in the office. Stilwell-Clemons testified that one employee, Ron Wilson, stated that he got so bored on first shift that he did not see anything wrong with going to pornography sites. Patterson and Hunt were both aware of what Wilson was doing, but he was not disciplined. [Stilwell-Clemons Dep. at 41]. When Stilwell-Clemons complained about the pornography, management told her that they were aware of it and that they were working on it. [Id. at 43].
Charles Spencer Cobb ("Cobb"), a former employee of IdleAire, testified by affidavit that he also saw the pornography, and that when he reported it to Hunt, the Area Manager, Hunt's response was "oh well, that happens." [Cobb Aff. at ¶3]. Cobb further testified that Abernathy carried pornography in a golf bag in the back of his car, and that he brought pornography to the work site and showed it to other employees. [Id. at ¶1]. Cobb testified that this pornography interfered with his ability to do his work. [Id. at ¶¶2, 7].
IdleAire denies that it did nothing to stop the viewing of pornographic websites by its employees. Patterson testified that IdleAire terminated an employee for improperly using the computer in February 2003, but that the pop-ups continued to be a problem after his termination. [Patterson Dep at 110-11]. The problem was eventually resolved in September or October, 2003, when the company's computer was replaced. [Stilwell-Clemons Dep. at 93; Patterson Dep. at 120-22].
2. Derogatory and Harassing Comments
Ronald Shoupe, an IdleAire employee, observed other employees talk about females and use sexually harassing language. He testified that male employees were encouraged to make inappropriate comments about females in general. [Shoupe Aff. at ¶7].
Cobb testified that IdleAire management referred to the plaintiff as a "bitch." He further testified that Hunt and Patterson made fun of the plaintiff to other employees for applying for promotions; that they made derogatory comments about her experience, education, and where she lived; and that both men made the statement, "did she think she could push her way in here?" [Cobb Aff. at ¶16]. Patterson even told Cobb that he was going to get rid of the plaintiff. [Id. at ¶25]. Cobb found Patterson's comments about the plaintiff to be demeaning and inappropriate, and he observed the plaintiff to be well-groomed, professional, and polite. [Id. at ¶¶ 28. 29].
The plaintiff testified that Hunt would diminish, intimidate, and humiliate her by making comments about her nail polish and hair, by calling her a "bitch" to other employees, and by taking credit for ideas that she had proposed to him. [Avery Dep. at 103].
Lydia Baker testified that Patterson told her that the plaintiff could make more money "in the trucks" (i.e., by being a prostitute) than she made at IdleAire. Baker further testified that Patterson referred to the plaintiff as a "slut," and that she overheard him making fun of her make-up and perfume. Patterson also told ...