The opinion of the court was delivered by: Judge Mattice
Before the Court is Defendants' Motion for Summary Judgment (Court Doc. 64). Defendants seek summary judgment on Plaintiffs' remaining failure-to-hire claims: (1) Plaintiff Morris's claims of racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981,*fn1 and her claim of racial and age discrimination under the Tennessee Human Rights Act ("THRA"), Tenn. Code Ann. §§ 4-21-101 to 1004; (2) Plaintiff Love's claim of age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, her claim of racial discrimination under § 1981, and her claim of racial and age discrimination under the THRA; (3) Plaintiff Smith's claim of age discrimination under the ADEA, her claim of racial discrimination under § 1981, and her claim of racial and age discrimination under the THRA; and (4) Plaintiff Woods's claim of age discrimination under the ADEA, her claim of racial discrimination under Title VII and § 1981, and her claim of racial and age discrimination under the THRA. (See Court Doc. 47, Memorandum and Order of August 1, 2007.)
Before the Court turns to Defendants' Motion for Summary Judgment, it must address several preliminary matters. The Court first GRANTS Plaintiffs' Motion for Leave to File an Answering Brief in Excess of 25 Pages [Court Doc. 66].
Second, Plaintiffs move to strike portions of the affidavit of Andrew Lawrence filed in support of Defendants' Motion for Summary Judgment (Court Doc. 69, Mot. Strike). A motion to strike, pursuant to Federal Rule of Civil Procedure 12(f), is applicable "only to pleadings and is inapplicable to other filings." Dawson v. City of Kent, 682 F. Supp. 920 (N.D. Ohio 1988), affirmed, 865 F.2d 257 (6th Cir. 1988). Accordingly, the court DENIES Plaintiffs' Motion to Strike [Court Doc. 69], and instead treats it as an evidentiary objection. See State Mut. Life Assur. Co. of Am. v. Deer Creek Park, 612 F.2d 259, 264 (6th Cir. 1979) (stating that a court should disregard inadmissible evidence, not strike that evidence from the record.)
Plaintiffs raise two objections to Mr. Lawrence's Affidavit (Court Doc. 64-11). First, Plaintiffs argue that much of Mr. Lawrence's testimony is hearsay because it relates to what the deponent was told by other declarants.*fn2 As they correctly point out, however, Defendants do not offer the third-person declarations recounted in Mr. Lawrence's affidavit to prove the truth of the matters asserted by these declarants. Instead, it is Mr. Lawrence's honest belief in the third-person declarations that is at issue in this case. See Braithwaite v. The Timken Co., 258 F.3d 488, 494 (6th Cir. 2001) (at issue in the pretext analysis is whether a decision maker did "honestly believe" in the given reason for its employment decision.). Accordingly, Mr. Lawrence's affidavit does not contain hearsay. See Fed. R. Evid. 801(c).
Plaintiffs next argue that portions of Mr. Lawrence's affidavit are not based on personal knowledge because he could not recount the details underlying his affidavit in a later deposition, and admitted that he did not review the underlying documentation that supported the portions at issue before executing the affidavit. (See Court Doc. No. 69-2, Lawrence Dep 60-63.) While Defendants argue that Mr. Lawrence was familiar with the underlying facts at the time of the hiring process (Spring of 2005), it is the time that the affidavit is executed (Fall of 2007) that is controlling. See Fed. R. Civ. P. 56(e)(1) (requiring affidavits to be "made on personal knowledge . . .") (emphasis added). Accordingly, the Court will disregard the portion of Paragraph 19 addressing Defendant Morris's experience, and the entirety of Paragraph 20 of Mr. Lawrence's Affidavit [Court Doc. 64-11].
Plaintiffs' second evidentiary argument involves Plaintiffs' personnel files and computer assessment scores, which could not be located by Defendants. (Court Doc. 72-7, Lawrence Fed. R. Civ. P. 30(b)(6) Dep. 109-111.) Plaintiffs urge the Court to find that Defendants are guilty of spoliation, and to draw inferences in Plaintiffs' favor regarding the missing documents. "The rules that apply to the spoiling of evidence and the range of appropriate sanctions are defined by state law . . . ." Beck v. Haik, 377 F.3d 624, 641 (6th Cir 2004) (citing Nationwide Mut. Fire Ins. Co. v. Ford Motor Co., 174 F.3d 801, 804 (6th Cir. 1999)). According to Tennessee state courts, "[t]he doctrine of spoliation of evidence permits a court to draw a negative inference against a party that has intentionally, and for an improper purpose, destroyed, mutilated, lost, altered, or concealed evidence." Bronson v. Umphries, 138 S.W.3d 844, 854 (Tenn. Ct. App. 2003) (emphasis added). As Plaintiffs have offered no probative evidence suggesting that defendants intentionally lost the documents in question, and did so for an improper purpose, the Court does not accept their argument as to spoliation. See id.
II. SUMMARY JUDGMENT STANDARD
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). The moving party may meet this burden either by producing evidence that demonstrates the absence of a genuine issue of material fact or by simply " 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id. at 325. To refute such a showing, the nonmoving party may not simply rest on its pleadings. Behrens v. Pelletier, 516 U.S. 299, 309 (1996); see Anderson, 477 U.S. at 249. The nonmoving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material factual dispute. Celotex, 477 U.S. 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).
Defendant Chattanooga Housing Authority ("CHA") provides public, nonprofit housing. (Court Doc. 64-12, Dull Aff. ¶ 3). Defendants Lawrence and Dull are supervisory employees of CHA. (Id ¶ 2; Lawrence Aff. ¶ 2.) Defendant Wadley is not an employee of CHA, but is a resident member of the CHA Board of Commissioners, and took part in the hiring decision-making process at issue. (Lawrence Aff. ¶ 37.) Plaintiffs Love, Smith, and Woods are former employees of Defendant CHA who were not rehired after CHA took back and restructured their positions from a private property management Company, H.J. Russell and Company. (Lawrence Aff. 3.) Plaintiff Morris was hired by H.J. Russell and Company, but was not hired by Defendant CHA after it transitioned her position back in-house. (Id. ¶ 4.) Plaintiffs are African American, and were over forty years of age at the time of the hiring process at issue. (Court Doc. 72-6, Morris Dep. ex. 1; Court Doc. 72-9, Love Dep. ex. 1; Court Doc. 72-10, Smith Dep. ex. 1; Court Doc. 72-7, Woods Dep. ex. 1)
The transition of Plaintiffs' positions from H.J. Russell and Company back to CHA occurred in mid-2005. (Id. ¶ 5.) As part of this transition, CHA restructured its management and customer service positions, and conducted interviews for these positions. (Id. ¶ 6.) These positions included: Community Operations Manager ("COM"), Community Management Specialist ("CMS"), Community Service Representative ("CSR"), and Customer Information Verification Specialist ("CIVS"). (Dull Aff. ¶ 9.) All qualified applicants were considered simultaneously for each of the positions for which they applied. (Lawrence Aff. ¶ 9.)
Plaintiff Morris applied for the COM, CMS, and CSR positions. (Morris Dep. 33.) Plaintiff Love applied for the COM, CMS, CSR, and positions. (Love Dep. 127.) Plaintiff Smith applied for the COM, CMS, and CSR positions. (Smith Dep. 264-66.) Plaintiff Woods applied for the CMS, CSR, and CIVS positions. (Woods Dep. 38, 183.) Each was granted at least one interview. None of the Plaintiffs was hired for any of these positions. Each claims that she was not hired due to her race and age.
Defendants contend that Plaintiff Morris was removed from consideration from any position because of, among other reasons, the "numerous complaints from several CHA residents" she received in her prior position. (Lawrence Aff. ¶ 4.) Defendant Dull contends that he received three or four written complaints regarding Plaintiff Morris-the most for any employee. (Court Doc 72-4, Dull Dep. 38.)
Defendants aver that Plaintiff Love was not considered for any position due to a representation by the United States Department of Housing and Urban Development ("HUD") that she had been responsible for "many of the errors which [it] had found concerning the resident files . . . ." (Lawrence Aff. ¶¶ 24-25.)
Defendants state that Plaintiff Smith was not hired for the CMS position because of her poor final interview. (Lawrence Aff. ¶ 31.) As to the other positions, Defendants cite Plaintiff Smith's past work performance, suspension, and termination while working for H.J. Russell and Company. (Id. ¶ 32; Smith Dep. ex. 3.)
Defendants represent that Plaintiff Woods was not hired for the CMS position because of poor interview performance and lack of experience. (Lawrence Aff. ¶ 36.) As to the CSR position, Defendants state that Plaintiff Woods was recommended for this position, but was removed by Defendant Wadley. Regarding the CIVS position, Defendants contend that they lost Plaintiff Woods's application and therefore did not consider her for the position. (Lawrence Fed. R. Civ. P. 30(b)(6) Dep. 176.)
As described in detail below, Plaintiffs challenge these reasons as pretext. Additionally, Mr. Powell, who was then the Executive Director of CHA, made a statement that CHA needed a "younger look" during a Resident Services Coordinator Meeting. (Morris Dep. 168.) Mr. Powell made this comment no later than November of 2003. (See Court Doc. No. 64-3, Morris Dep. 88-89, 169-70 (stating that Plaintiff Morris heard this comment when she was a Resident Services Coordinator, which was from September of 2002 to November of 2003)). Defendants did not make the hiring decisions in question until April of 2005. (Lawrence Aff. ¶¶ 13-17.)
As noted above, Plaintiffs bring failure-to-hire claims under the ADEA (based on age), Title VII (based on race), § 1981 (based on race), and the THRA (based on age and race). Except for variations in the applicable prima facie case, the Court's analysis of these claims is identical. Each is addressed under the McDonnell Douglas/Burdine burden-shifting analysis described below. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (creating the burden-shifting analysis for Title VII claims); Baseball at Trotwood, LLC v. Dayton Prof'l Baseball Club, LLC, 204 Fed. App'x 528, 536 (6th Cir. 2006) ("Claims of race discrimination under 42 U.S.C. § 1981 are analyzed using the familiar burden-shifting framework set out in McDonnell Douglas . . . ."); Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003) (Age discrimination claims under the ADEA are analyzed under the McDonnell Douglas/Burdine burden-shifting analysis.); Shaw v. Danley, 202 F.3d 270, 2000 WL 64945, at *3 n.2 (6th Cir. Jan. 10, 2000) (The analysis of a THRA claim is identical to the analysis of a related Title VII claim.). Accordingly, the Court will address all of Plaintiffs' claims simultaneously.
A plaintiff may prove claims of discrimination under the applicable statutes by either direct evidence or circumstantial evidence. Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003). When a plaintiff presents direct evidence of discrimination, "the burden of both production and persuasion shifts to the employer to prove that it would have terminated the employee even if it had not been motivated by impermissible discrimination." Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). "[D]irect evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions."
Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). "Consistent with this definition, direct evidence of discrimination does not require a fact finder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group." Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003) (internal citations omitted).
When, however, a plaintiff's claims of discrimination are based on circumstantial evidence, the Court applies the burden-shifting analysis initially described by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McClain v. Nw . Community Corr. Ctr. Judicial Corr. Bd., 440 ...