The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
Plaintiff Marlena D. John ("Ms. John") originally filed the present civil action against her former employer, Wal-Mart Stores East, Inc. ("Wal-Mart"), in the Knox County Chancery Court. In her complaint, Ms. John claims violations of the Tennessee Human Rights Act ("THRA"), Tenn. Code Ann. § 4-21-101 et seq., in addition to the other state claims of invasion of privacy, defamation/slander per se, intentional/negligent infliction of emotional distress, and negligent supervision/negligent training. Wal-Mart removed the case to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. The jurisdictional requirements are satisfied on the basis of diversity of citizenship. 28 U.S.C. § 1332. Wal-Mart has now filed a motion for summary judgment [Doc. 12], which is ripe for determination.
The Court has carefully considered the parties' briefs, supporting materials [Docs. 12, 13, 14, 15, 16, 17, 18, 39-2, 40-2], and oral arguments in light of the entire record and controlling law. For the reasons set forth herein, Wal-Mart's motion for summary judgment [Doc. 12] will be GRANTED in part and DENIED in part.
Ms. John is an African-American who immigrated to the United States from Trinidad and Tobago in the West Indies in June of 2004 [Doc. 17-3 at 2]. Wal-Mart employed Ms. John from late October of 2004 until March 22, 2005 [Id. at 3]. Though initially hired as a cashier, Wal-Mart transferred her to a sales associate position in the soft lines department approximately two weeks after starting employment [Doc. 13-2 at 3, 5]. As compared to a cashier, the sales associate position had lower pay of approximately $.20 to $.30 per hour [Doc. 17-3 at 8]. Ms. John claims that Assistant Manager Danny Isbill ("Mr. Isbill") initiated the transfer while Mr. Isbill maintains that Ms. John requested the transfer to soft lines [Id. at 5; Doc. 17-2 at 4].
While working as a sales Associate, Ms. John claims various instances of discriminatory treatment by managers and co-workers. As compared to her co-workers, Ms. John felt Mr. Isbill "was paying close attention to [Ms. John] only, focusing on [her] only" and "would just act as though he didn't want to answer" her questions [Doc. 17-3 at 7]. In other words, he paid closer attention to her work, was less willing to answer her questions, and "just had a snotty attitude towards" Ms. John [Id.]. Similarly, Ms. John claims Assistant Manager Steven Reeves ("Mr. Reeves") was unwilling to answer her questions and acted "like he really didn't care." [Id. at 9]. She further claims that when other employees would ask Mr. Reeves questions, he would "just treat them in a different manner than he did [her]." [Id. at 10]. Additionally, a few of Ms. John's co-workers inquired about her immigration status and spread rumors that she brought friends into the store to shoplift [Id. at 12, 13; Doc. 17-5 at 14]. Ms. John made complaints regarding some of these incidents to a customer service manager, Charles Forest ("Mr. Forest"), as she alleges she was instructed to do by Wal-Mart at her orientation [Docs. 17-3 at 6; 17-5 at 17]. After Ms. John no longer worked for Wal-Mart, Mr. Forest told her that she had been discriminated against by some of her Wal-Mart co-workers [Doc. 17-5 at 16]. According to Mr. Isbill, Wal-Mart's open door policy for discrimination complaints permits employees to go to any part of the command to make complaints, but hourly employees, such as customer service managers, are not considered management [Doc. 17-2 at 2].
In February 2005, Co-Manager Danny R. Crowe learned that Ms. John may have purchased some beads for less than regular retail price [Doc. 15 at 1-2]. Ms. John was never questioned about or disciplined for the incident due to lack of sufficient evidence [Id.].
On March 9, 2005, Ms. John set aside and purchased two children's outfits priced $.50 each [Doc. 17-4 at 5-6]. Prior to purchasing the outfits, Ms. John claims that she asked her co-worker "Jennifer" about the low priced merchandise who replied that she had checked with management about the prices [Id. at 6]. At the end of her shift, Ms. John purchased the outfits at the self-checkout aisle and proceeded to exit the store when Mr. Isbill and several other Wal-Mart employees stopped her and asked to see her bag and receipt [Id. at 9]. Since Ms. John had to leave on the bus to return home, she gave the merchandise to Mr. Isbill who gave her $1.00 in return [Id. at 14]. Mr. Isbill informed Ms. John that they would talk about the incident the next day [Id.].
On March 10, 2005, Ms. John returned to work and met with Mr. Isbill and Ruby Lenoir about the incident [Docs. 17-4 at 17; 17-5 at 1-2]. Later in the day, she met with Assistant Manager Tina Frazier, Danny Crowe, and Travis Street ("Mr. Street") [Doc. 17-5 at 3]. After Ms. John denied putting the wrong price tag on the merchandise, she claims Mr. Street told her she was lying [Id. at 3]. At that meeting, she was suspended pending an investigation of the incident [Id. at 4]. As she was leaving the store, Ms. John spoke to Mr. Forest who instructed her to seek legal advice [Id. at 2]. Approximately two to three days later, Ms. John retained counsel.
About a week and a half after the incident, Ms. John received a call from Mr. Reeves asking her to return to work the following Friday [Doc. 13-2 at 25]. Ms. John did not want to return to work due to bad feelings stemming from the managers' treatment after the incident [Id. at 27]. At that time, Ms. John thought Wal-Mart would terminate her for not returning to work [Id.]. Ms. John's termination became effective March 22, 2005 for job abandonment [Doc. 15 at 2].
Wal-Mart conducts, on average, six or seven investigations of employee theft per month [Doc. 17-8 at 2]. According to Mr. Street, not all employees suspected of theft are suspended [Id.]. Such determinations are based on investigatory interviews, but Mr. Street does not recall why he suspended Ms. John [Id.]. Subsequent to the suspension of Ms. John, at least two white employees suspected of theft were not suspended [Id. at 3].
Under Fed. R. Civ. P. 56(c), summary judgment is proper if "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." The moving party bears the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986). The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable jury could find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id.
The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question. Id. at 249. The judge does not weigh the evidence, judge the credibility of witnesses, nor determine the truth of the matter. Id. Thus, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for trial - whether, in other words, there are any genuine factual issues that ...