United States District Court, M.D. Tennessee, Nashville Division
KEVIN H. SHARP, District Judge.
Plaintiffs' complaint before this Court alleges unlawful discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), 42 U.S.C. § 1981 (§ 1981), and the Tennessee Human Rights Act (THRA). Defendant North Central Telephone Cooperative, Inc. ("NCTC" or the "Cooperative") has filed a Motion for Summary Judgment as to Plaintiff Teresa Patterson (Docket No. 86) and a Motion for Summary Judgment as to Plaintiff Nechie Woodard (Docket No. 81). These motions, for the reasons that follow, will be granted in part and denied in part.
I. FACTUAL BACKGROUND
Defendant NCTC is a telecommunications cooperative based in Lafayette, Tennessee, that provides phone, Internet, cable television, and security systems to Cooperative members in Macon County and the surrounding area. Nancy White has served as President and CEO of NCTC since May 2009.
Plaintiffs Teresa Patterson and Nechie Woodard are former employees of NCTC. Ms. Patterson was NCTC's Human Resources manager from July 1999 to March 2010. Mr. Woodard worked at NCTC for more than twenty years, most recently in the warehouse.
In February 2010, NCTC posted job openings for two Line Technician positions and received hundreds of resumes. Ms. Patterson collected the applications, screened them, and consolidated the candidate base. She then interviewed approximately 60 candidates, including Mr. Malone, the sole African-American applicant. Mr. Malone had initially learned of the job from Mr. Woodard, who also served as a reference. The two had developed a relationship over the years as Mr. Malone made deliveries to Mr. Woodard in the warehouse.
The lack of diversity in the applicant pool was not unusual at NCTC. The Cooperative's homogenous workforce is attributed, at least in part, to a practice of hiring exclusively from residents within its Service Area, which has an exceedingly small minority population. Defendant offers a legitimate business reason for the requirement: it allowed technicians to respond to customers' emergency service calls more quickly. (Docket No. 87 at 12). Plaintiffs counter that this practice was actually motivated by a conscious effort to exclude minorities from the company. (Docket No. 25 at ¶ 56).
After the initial round of interviews, Ms. Patterson recommended to Ms. White that Mr. Malone continue to the next round. She noted that while Mr. Malone did not currently live within the Service Area, he would relocate for the job. Plaintiffs claim Ms. White was generally disinclined to follow the recommendation and stated that a willingness to move did not satisfy the Service Area requirement. (Docket No. 25 at ¶ 21). A day or two later, Ms. Patterson was fired from NCTC without explanation. (Docket No. 25 at ¶ 22-23).
Despite Ms. White's purported reticence, Mr. Malone was interviewed for a second time by NCTC supervisors. However, soon after, an "outside source" warned Mr. Malone that he would not be hired because "North Central Cooperative was a racist company & would never consider hiring a black man..." (Docket No. 25-1). Mr. Malone reported this in a letter to NCTC, lamenting, "our money is good enough to pay for your services. however: [ sic ] our abilities to work for you are lacking." (Id.). Mr. Malone alerted NCTC that he had been "treated wrongfully" by the three supervisors who interviewed him, but was still interested in the job. If NCTC did not remedy the situation, however, he would have "NO other choice than to contact the NAACP and EEOC." (Id.). Mr. Malone was later offered the position and remains employed at NCTC.
Plaintiffs claim that after Mr. Woodard recommended Mr. Malone, he became the target of ridicule and harassment at work. Along with Ms. Patterson, Mr. Woodard acquired representation and entered into mediation with NCTC to resolve their dispute in July 2010. Plaintiffs' counsel alerted Defendant that his clients would file charges of discrimination with the EEOC and prosecute their claims if they could not otherwise be resolved. The day after the unsuccessful conclusion of the mediation, NCTC and Ms. White, in her capacity as President and CEO, filed a lawsuit in Tennessee state court against Ms. Patterson alleging that she violated the state's Wiretap Act, TCA 39-13-601(a). Approximately two weeks later, Plaintiffs filed charges of discrimination with the EEOC.
Plaintiffs' complaint before this Court alleges unlawful discrimination and retaliation in violation of Title VII, § 1981, and the THRA, as a result of their recommendation of Mr. Malone for employment. Mr. Malone initially considered joining Plaintiffs in the current lawsuit. Apparently to this end, Ms. Patterson left Mr. Malone two voicemail messages explaining the opportunity "means money." (Docket No. 116 at 23-24). Mr. Malone went so far as engaging Plaintiffs' counsel, but abandoned the lawsuit when NCTC subsequently hired him in April 2010.
A. Teresa Patterson
Plaintiffs contend the causal connection between Ms. Patterson's recommendation of Mr. Malone and her immediate termination from NCTC is clear. During her eleven years as Human Resources Manager, Ms. Patterson earned consistent positive feedback. She received favorable performance reviews and was never written up or disciplined for misconduct. In fact, Plaintiffs claim that the same week she was fired, Ms. White told Ms. Patterson "she had been doing a good job and that, as a result, she would be receiving a merit increase in her annual salary, " which Ms. White subsequently approved. (Docket No. 25 at ¶ 15.) When Ms. Patterson was fired, Ms. White offered no explanation or justification for her termination.
Plaintiffs point to a pattern of discrimination at NCTC to further support the claim Ms. Patterson lost her job as a consequence of recommending a black applicant. The Cooperative receives federal funds from Rural Utility Services and as such, is subject to affirmative action requirements of Executive Order 11246. However, Mr. Malone is its first permanent minority employee. During her first year with NCTC, Ms. Patterson drafted an affirmative action plan but was later advised by Eric Sevens, counsel for NCTC, that NCTC was exempt from this requirement because of its status as a cooperative. (Docket No. 116 at ¶ 227). The plan was never implemented. (Id.). When Ms. Patterson asked how else she could improve diversity, Mr. Stevens instructed that her responsibility as affirmative action officer was satisfied by "track[ing] every applicant to show that she did not have diverse applicants so NCTC did not discriminate because she did not have a diverse applicant pool." ( Id. at ¶ 228). Plaintiffs claim that Ms. Patterson repeatedly requested that the Service Area requirement be abolished and questioned the policy "almost every time a position was open." ( Id. at ¶ 235). Notably, NCTC has since abandoned this practice in order to comply with its affirmative action obligations. (Docket No. 120-13 at 288-92).
Defendant offers a different version of Ms. Patterson's tenure at NCTC, claiming she was a problematic employee long before Mr. Malone applied, and never undertook efforts to recruit minority candidates within the Service Area. In 2008, Board Members "raised issues" concerning Ms. Patterson during a meeting of the Board of Directors. (Docket No. 87 at 3-4). Interestingly, however, a PowerPoint slideshow presented at the board meeting largely reflects Plaintiffs' description of Ms. Patterson's reputation at the Cooperative, noting she "[h]as received and exceeds performance appraisal 5 years in a row" and has "[n]othing negative in her personnel file pertaining to job performance." (Docket No. 91-5 at 7-9).
Nonetheless, when Ms. White joined NCTC in the spring of 2009, she soon became concerned that Ms. Patterson's approach did not fit her management style. Defendant asserts that by October 2009, Ms. White had decided to replace Ms. Patterson due to concerns over her professionalism, reliability, and trustworthiness. (Docket No. 87 at 4). She began compiling a severance package in late January 2010, but Ms. Patterson was not actually terminated until March 5, 2010. Ms. White attributed the delay to her busy schedule at the time. (Docket No. 120-13 at 111-14). Defendant further contends Ms. White never intended to provide Ms. Patterson with a merit raise given her impending termination and that her pay change form was signed in error. (Docket No. 87 at 8-9).
B. Nechie Woodard
Soon after recommending Mr. Malone for the line technician position, Mr. Woodard claims he became the target of discrimination and retaliation at NCTC. He claims his supervisor stated, "Why did you recommend Dondi? We ought to kick your ass." (Docket No. 111 at ¶ 15). In the same conversation, Mr. Woodard alleges his supervisor said, "I should fire your ass for sending that black man down for a (sic) interview." ( Id. at ¶ 16). The supervisor later claimed his statements were made in jest but was disciplined with two days suspension without pay and a written warning.
Soon after, Mr. Woodard claims he received a call from an unknown number asking him to check a shed on NCTC grounds. He forgot about it until he arrived at work the next day and found a noose in the warehouse. He immediately called the interim Human Resources Director, who instructed him to take photos of the noose and accompanied him to the shed, where they found a second noose. A review of warehouse security cameras revealed that coworker Matt Wyatt had tied the first noose. Mr. Wyatt maintained he did not think of the noose as an object with racist symbolism, did not intend to target Mr. Woodard, and did not know Mr. Woodard had recommended a black candidate for the line technician position. He was suspended for two weeks without pay and received a written warning from Ms. White. An NCTC investigation did not resolve the question of who tied the second noose.
Mr. Woodard's complaints about the noose incident rankled other NCTC employees, who took up a collection to cover Mr. Wyatt's wages while he was on disciplinary leave. (Docket No. 111 at ¶ 37-38). Three weeks after Mr. Wyatt's suspension, in May 2010, a number of coworkers filed complaints against Mr. Woodard for telling a racist joke. Their stories differed - one coworker thought he had told the joke in March, one remembered him telling it in May, and a third reported Mr. Woodard told it in both March and May. None who claimed to have heard the joke explained their delay in reporting the incident. Instead, their statements emphasized the injustice of one who complained of discrimination telling inappropriate jokes himself. One coworker noted, "I don't see how Nechie can tell a joke like this one day and then turn around a few days later and claim racism on an incident by another employee, when the joke he told was just as racist." (Docket No. 98 at 6).
Given the circumstances, NCTC emphasized in its incident report, its investigation purposefully sought to "ensure that other employees were not complaining merely because [Mr. Woodard] had complained about another employee leaving a noose in the warehouse earlier in the year." (Docket No. 111 at ¶ 49). The investigation ended in mid-July and concluded that Mr. Woodard's version of events was improbable, that the joke "took place" and was "committed by the accused." (Docket No. 12 at ¶ 59). He was suspended for two weeks without pay. Mr. Woodard noted on his Corrective Action Form at the time of his suspension that he felt it was an "act of retaliation for filing suit against NCTC and with EEOC." (Docket No. 98 at 9).
Mr. Woodard went on FMLA leave from mid-July to mid-September 2010 to treat a heart condition. He filed his first EEOC claim in August. He claims that on his return, NCTC did not accept the usual form from his doctor and required additional documentation. He further claims that he returned to work to find the warehouse bathroom soiled and his nameplate removed from over the door. While he was away, NCTC had hired a consultant to increase efficiency in the warehouse, and Mr. Woodard contends his work became much more physically demanding than it had been previously.
Mr. Woodard resigned from NCTC on November 22, 2010, citing "retaliation, hostile work environment, discrimination, and harassment" as the cause of his departure. (Docket No. 98 at 10). Thereafter, Mr. Woodard briefly held two other positions. He was terminated from the first for misuse of a company vehicle but was soon hired by MasTec, a subcontractor of NCTC. He had not yet started working when NCTC contacted MasTec to request that he be removed from all of their projects. Plaintiffs claim NCTC threatened to end their contract with MasTec entirely if it did not comply.
Also around this time, Mr. Malone complained to NCTC Human Resources that his family was being harassed through posts on an Internet message board. NCTC worked with local police to discover the messages emanated from Mr. Woodard's IP address. Mr. Woodard contends he did not write the messages and that NCTC employees were able to make the messages appear to have come from his address. Mr. Malone also complained that Mr. Woodard was harassing him through frequent calls to his home and a prayer request to Mr. Malone's church but an NCTC investigation concluded these calls were a mere "nuisance" and that the coworkers could resolve the problem privately.
C. Initial efforts to resolve the dispute
On May 21, 2010, after Ms. Patterson's termination but while Mr. Woodard was still employed, Plaintiffs' attorney wrote a letter to NCTC addressed to Ms. White ...