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Vanover v. White

July 10, 2008


The opinion of the court was delivered by: Thomas A. Varlan United States District Judge



Plaintiff Kimberly Vanover ("Plaintiff") filed the present civil action against Bill White ("White"), Joel Cupp, Rowland Cupp, and Elmo Greer & Sons, LLC ("Elmo Greer") (hereinafter collectively referred to as the "Defendants"), alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Tennessee Human Rights Act, and the Equal Pay Act. Plaintiff also makes claims of sexual assault, extreme and outrageous conduct and intentional infliction of emotional distress, and negligence. Defendants have filed a motion for summary judgment [Doc. 24], which is ripe for determination.

The Court has carefully considered the parties' briefs and supporting materials [Docs. 24, 28, 31, 33] in light of the entire record and controlling law. For the reasons set forth herein, the Defendants' motion for summary judgment [Doc. 24] will be DENIED.


In 2004, Elmo Greer successfully bid on a highway construction project located in Tazewell, Tennessee, through the Tennessee Department of Transportation ("Tazewell Project"). [Doc. 28-2 at ¶ 3.] The project involved grading, drainage, construction of two bridges, and paving on United States Route 25. [Id.] According to Defendants, Elmo Greer's contract for the Tazewell Project required it to provide on-the-job training to a certain number of individuals over the life of the contract. [Id. at ¶ 4.] Elmo Greer allegedly utilized a training program created by the Tennessee Road Builders Association ("TRBA") to carry out the on-the-job training requirements of the State of Tennessee contract. [Id. at ¶ 5.]

After commencement of the Tazewell Project, Plaintiff learned that Elmo Greer was hiring, and she applied for a position with the company. [Doc. 31-2 at 8-9.] On January 4, 2006, Plaintiff was hired as a heavy truck operator, reviewed Elmo Greer's policies, signed the necessary paperwork, and went to work. [Docs. 28-2 at 2-3; 28-10; 31-2 at 8-11, 65.] Plaintiff's direct supervisor was foreman, Kyle Johnson ("Foreman Johnson"). [Doc. 31-2 at 11.] The superintendent of the project was Defendant Rowland Cupp. [Doc. 31-5 at 2.] The superintendent is the leading acting officer on the construction site and has the final authority with respect to the enforcement of affirmative action and sexual harassment policies on the job site. [Docs. 31-4 at 6; 31-5 at 2.]

Plaintiff was hired at a wage rate of $9.65 per hour. [Doc. 31-2 at 12.] According to Plaintiff, she was unaware that her wage rate was paid pursuant to either Tennessee state law or the contract that covered the project, and she did not inquire how her wage rate was set. [Id.] Plaintiff further alleges that she was not told that her training period would consist of a total of 1,040 hours, consisting of three stages of training. [Id. at 13, 66.] Plaintiff was told by Rowland Cupp that she would receive a raise to $11.96 per hour upon completion of her training, the same wage rate for other Elmo Greer truck drivers. [Id. at 15-16, 63.] To Plaintiff's knowledge, she was the only truck driver paid $9.65 per hour. [Id. at 63.] During Plaintiff's employment, Elmo Greer allegedly reported her training hours to the State of Tennessee, though Plaintiff claims unawareness of such reporting. [Docs. 31-2 at 17, 66; 31-3 at 7-44.] On her first day, Plaintiff claims that she observed another driver for two hours, switched places with the other driver, and then operated the truck while being observed by the other driver. [Doc. 31-2 at 10, 68-69.] After riding with another driver for approximately one week, Plaintiff subsequently rode alone and operated the truck by herself thereafter. [Id. at 69.] She also contends that she was the lowest paid employee, even though she was not the most recent employee hired by Elmo Greer. [Id. at 34.]

During January of 2006, Plaintiff alleges several instances of sexual harassment by her co-worker, Defendant White, while at the Elmo Greer job site. [Id. at 26.] On one occasion, White allegedly exposed his penis to Plaintiff. [Id.] White also allegedly directed the following conduct toward Plaintiff: licking his lips, whistling, grabbing himself, and making gesture with his hands and tongue. [Id. at 26-27, 43.] While Plaintiff passed him by in her truck, White allegedly would pull up his shirt, expose his chest, and ask Plaintiff to do likewise. [Id. at 27.] Additionally, White allegedly made numerous calls, up to ten or twelve times in one day, to Plaintiff's cell phone and would make comments ranging from "just talking" to asking if she would "go out" with him. [Id. at 29.] Plaintiff also describes a "very explicit" cell phone call from White "[a]bout licking my [p-expletive] and [f-expletive] me and making jokes of it." [Id. at 29.] On the same day that White allegedly made this "very explicit" call to Plaintiff, he allegedly wrote a letter to the Plaintiff that another co-worker, Darrell Cupp, delivered to her. [Id. at 27, 32.] The letter allegedly included a sexually suggestive joke and a sexually explicit poem.*fn1 [Docs. 31-2 at 31; 31-7 at 4.] According to Plaintiff, she expressed her concerns about sexual harassment to Foreman Johnson, her direct supervisor, by showing him the cell phone history of the calls White made to her and showing him White's letter. [Doc. 31-2 at 11, 29, 33.]

In mid to late January of 2006, an incident allegedly took place on Tennessee State Route 33 ("Route 33"). [Doc. 31-2 at 25.] Though the Tazewell Project included a bridge being built across it, Route 33 was open for public access. [Id. at 45.] After work, Plaintiff allegedly drove to a gas station off of Route 33 that White and Defendant Joel Cupp were also patronizing. [Id. at 46.] White drove an Elmo Greer vehicle to the gas station because he used it to drive from his home to the job site each day. [Docs. 31-5 at 7; 31-6 at 12.] According to White, he asked Plaintiff for the twenty dollars that she had previously borrowed, which she allegedly repaid him. [Doc. 31-7 at 7.] According to Plaintiff, White and Joel Cupp invited her to leave with them while at the gas station, which she declined.

[Docs. 31-2 at 47; 28-9 at 8.] After leaving the gas station and returning to Route 33, Plaintiff stopped her vehicle after she found White's vehicle parked across the road. [Doc. 28-9 at 9-10.] White and Joel Cupp allegedly left their vehicle, with White approaching the driver's side of Plaintiff's vehicle and Joel Cupp getting in the passenger side. [Id. at 11.] While Joel Cupp asked her to go with them, White allegedly asked to see her breasts, grabbed at her breasts, and tried to raise her shirt himself. [Doc. 31-2 at 48-49.] Joel Cupp then allegedly put his hands in between Plaintiff's legs and said, "Let me feel how warm your [p- expletive] is." [Id. at 49.] After asking them to stop and leave her alone, White allegedly said they would leave her alone if she would expose her breasts to them. [Id.] After refusing, White allegedly asked for a cigarette, and Plaintiff gave him a pack of cigarettes. [Id.] According to Plaintiff, White and Joel Cupp then left her. [Id.]

The next morning, Plaintiff spoke to Foreman Johnson about the incident on Route 33, who then communicated the incident to Rowland Cupp. [Id. at 25, 50.] Rowland Cupp then came to speak to Plaintiff about the incident on Route 33 involving White and Joel Cupp. [Id. at 50.] According to Rowland Cupp, Plaintiff repeatedly stated that she did not want to get White or Joel Cupp in trouble. [Doc. 31-5 at 11.] According to Plaintiff, Rowland Cupp stated that he would talk to White and Joel Cupp, left the Plaintiff for about fifteen to thirty minutes, and then returned with Foreman Johnson. [Doc. 31-2 at 50.] According to Rowland Cupp, he spoke to Joel Cupp approximately two to three minutes and cannot recall how long he spoke to White. [Doc. 31-5 at 13.] According to Plaintiff, Rowland Cupp allegedly told her that he had taken care of the problem by instructing White and Joel Cupp to stay away from Plaintiff and to not speak to her any longer. [Doc. 31-2 at 51.] Rowland Cupp also allegedly stated that he did not want to report the incident to the corporate office and asked her to not mention it to anybody or anybody on the job. [Id.] According to Plaintiff, Rowland Cupp stated that if the incident were reported to the corporate office, "we'll all three lose our jobs." [Id.] Plaintiff interpreted this as referring to the termination of White, Joel Cupp, and herself. [Id.] While Plaintiff claims that Rowland Cupp did not ask her if she wanted to contact the corporate office, he claims that he asked if she wanted to take it further, which she declined. [Docs. 31-2 at 51; 31-5 at 11.] This was the only conversation Plaintiff had with Rowland Cupp regarding the incidents of sexual harassment. [Doc. 31-2 at 25.] The alleged sexual harassment and sexual assault on Route 33 by White and Joel Cupp were not reported to Elmo Greer's corporate office. [Docs. 31-2 at 39, 52; 31-5 at 11.]

After her conversation with Rowland Cupp, Plaintiff claims that she was "treated differently" by White, Joel Cupp, and other co-workers. [Doc. 31-2 at 53.] For instance, Plaintiff claims that Joel Cupp and another co-worker, Jared Cupp, would change the position of their loading bucket so that Plaintiff would have to reposition her vehicle up to four times before they would load her truck. [Id.] For a few weeks and several times a day, Joel Cupp and Jared Cupp would allegedly drop boulders into the bed of Plaintiff's truck from a higher distance than the norm, jarring her entire body as a result. [Id. at 54, 57.] On two to four occasions, Plaintiff claims that some co-workers would block the road with their construction equipment, forcing her to go around them, even though it was allegedly common procedure for trucks to have the right-of-way. [Id. at 56-57, 70.] A couple of times, the loading bucket filled with a mix of slate, dirt, and rock was repositioned over the cab of Plaintiff's truck, and the mixture was dumped to the point where, at least on one occasion, Plaintiff could not open the door to her truck. [Id. at 55, 57.] Plaintiff allegedly reported the incident to Foreman Johnson who stated he would tell Rowland Cupp. [Id. at 55.] Additionally, Jared Cupp would allegedly give her dirty looks, make obscene hand gestures toward her, and threw a bottle at the windshield of her truck, on one occasion. [Id. at 56.] According to Plaintiff, these types of incidents did not occur prior to and were mostly concentrated for about a month after she reported the incident on Route 33 to her superiors. [Id. at 58, 70.] According to Plaintiff, she reported most of these incidents to Foreman Johnson either at the end of the day or immediately after they occurred, and he would then allegedly report them to Rowland Cupp. [Id. at 58.] Plaintiff allegedly did not receive follow-up from Rowland Cupp, and she did not speak to him directly about the incidents. [Id. at 60.] Plaintiff also alleges that Rowland Cupp gave her mean looks, cursed at her, and treated her unfairly after the Route 33 incident, which did not occur previously. [Id. at 39.]

In March or April of 2006, White left his job from Elmo Greer because of drug testing. [Doc. 31-7 at 10] According to Plaintiff, she did not experience any overtly sexual harassment problems after White left Elmo Greer's employment, though she claims that she was asked to have sex during lunch by a co-worker she can no longer identify on May 15, 2006. [Doc. 31-2 at 20, 35.] Plaintiff did not report this incident to anyone at Elmo Greer. [Id. at 21.]

Starting in March or April of 2006, Plaintiff was allegedly sent home from work after being told to do so by Foreman Johnson per orders by Rowland Cupp. [Id. at 18, 22.] She was sent home on several occasions in May of 2006. [Id. at 18.] According to Plaintiff, there was no reason to send her home because there was work to do, her truck was in working order, and no other employee would drive her truck after she left. [Id. at 23.] After asking why she was being sent home, Foreman Johnson allegedly responded that Rowland Cupp was trying to make her quit so that he would not have to fire her. [Id. at 18-19.] According to Rowland Cupp, Plaintiff was sent home because he "didn't need her truck or something like that" and cannot recall if other drivers were also sent home. [Doc. 31-5 at 5-6.]

In May of 2006, Plaintiff learned that White was being rehired and decided to end her employment with Elmo Greer. [Docs. 31-2 at 35; 31-7 at 10.] Plaintiff gave a letter to Foreman Johnson and told him that she could no longer work for Elmo Greer. [Doc. 31-2 at 36.] According to Plaintiff, Foreman Johnson expressed how he did not blame Plaintiff for leaving in light of the rehiring of White and Rowland Cupp sending her home from work on several occasions. [Id. at 36.]

After her resignation, Plaintiff made her first communication with Elmo Greer's corporate office when she inquired about the proper person to contact about sexual harassment problems. [Id. at 37-38.] After being told to contact Lee Anderson ("Anderson"), Plaintiff sent a letter, dated June 15, 2006, explaining the reasons why she left her employment with Elmo Greer. [Docs. 31-2 at 39; 31-3 at 47-48.] After not hearing from Foreman Johnson, Rowland Cupp, or others at Elmo Greer, Plaintiff filed a charge of discrimination with the Tennessee Human Rights Commission. [Doc. 31-2 at 41.]


A. Standard of Review

Under Fed. R. Civ. P. 56(c), summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant 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 properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.

B. Equal Pay Act

Plaintiff claims that Defendant Elmo Greer compensated male employees at a higher rate than female employees, in violation of the Equal Pay Act ("EPA"). The EPA provides:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That ...

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