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Cummins v. Promethean, Inc.

United States District Court, M. D. Tennessee, Nashville Division

November 6, 2014

PROMETHEAN, INC., Defendant.


WILLIAM HAYNES, Jr., District Judge.

Plaintiff, Thomas Cummins, filed this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. against the Defendant Promethean, Inc., his former employer. Plaintiff asserts claims for retaliation and discrimination based upon his depression.

Before the Court is the Defendant's motion for summary judgment (Docket Entry No. 16) contending, in sum, that Plaintiff's proof does not satisfy a prima facie showing of retaliation under Title VII nor a disability discrimination under the ADA. Plaintiff submits his proof on both claims are sufficient and material factual disputes exist to deny summary judgment.

For the reasons set forth below, the Court concludes that Plaintiff's proof is insufficient to support judgment on his Title VII and ADA claims and the Defendant's motion for summary judgment should be granted.

A. Findings of Fact[1]

Promethean, which sells interactive whiteboards and other technological devices to schools, employed Plaintiff in 2008 as an Area Sales Manager. (Docket Entry No. 25, Plaintiff's Response to Defendant's Statement of Undisputed Facts at ¶¶ 4 and 5). In November 2011, Promethean placed Plaintiff and five other area sales managers on yearly sales quotas for their respective assigned areas. Id . at ¶ 6. Plaintiff's sales territory included Tennessee, Kentucky, West Virginia and Arkansas. Id . at ¶ 5. Promethean also employs "Teacher Learning Constants, " or "TLCs" who train clients with Promethean's products to maximize their use of Promethean products in the schools. Id . at ¶¶ 10-11. TLCs also have a geographic territory. Id . at ¶ 12. In 2009, Promethean added "Urban Account Specialists" employees who focused on specific accounts, as opposed to territory. Id . at ¶ 13.

On April 30, 2009, Plaintiff had a conflict with Lawrence Love, an urban account specialist about Love's presentation to a number of school principals in Memphis. Id . at ¶¶ 16-17. On the morning of the presentation, Love telephoned Plaintiff to inform him that "he's in Memphis sitting there with a roomful of principals, wondering where my board is." Id . at ¶ 18. Plaintiff told Love that he failed to clarify the exact date of this presentation. Id . During the conversation, Love, an African-American, told Plaintiff, a Caucasian, that "this was a black thing and [Plaintiff] was doing this on purpose." Id . at ¶ 19.

Plaintiff considered Love's comment an accusation that Plaintiff was a racist and Plaintiff wrote Scott Willett and Rob Goldberg, his supervisors that: "I don't necessarily want to escalate this, but I did want you to be aware in case there is an escalation from his side." Id . at ¶ 21. Plaintiff described his email as an effort to get "some feedback." Id . at ¶ 22. According to Plaintiff, Goldberg made light of the incident at annual sales meetings, id. at ¶ 26, and Willett sent him an email containing a video clip in which Goldberg says "Lawrence Love thinks you're a racist. Ha, ha, ha, ha." Id . at ¶ 27. Plaintiff's co-workers told Plaintiff that they knew he was not a racist. Id . at ¶ 29.

In June 2010, Annie Kwan, Defendant's human resources official, informed Plaintiff that a female employee of Promethean's reseller, Personal Computer Systems, alleged that Plaintiff made inappropriate sexual comments to her as well as another female. Id . at ¶¶ 32-34. Plaintiff was accused of referring to females as "fine" and "hot" and Plaintiff stated to one of the females at a trade show that, "we could have made a beautiful life together" and "sit in my lap." Id . at ¶ 35. Promethean required Plaintiff to write a letter of apology, but Plaintiff asserts that he was only being sarcastic and flirtatious. Id . at ¶¶ 32, 36.

By 2010, Promethean's business conditions worsened as a result of "an overall decline in education spending, " and the economy "was obviously in the middle of some pretty big issues." Id . at ¶ 51. The Defendant sent employees letters about a reorganization of its business model and a need "to fundamentally change how we approach the market, rethink our product and service offerings, and how we support and service our customer base." Id . at ¶ 52.

For 2011, Plaintiff's quota was $5 million in sales and, in his August 9, 2011 performance review, Willet informed Plaintiff that he was "tracking a little behind the annual number at the midway point." Id . at ¶55. By November 3, 2011, Plaintiff's sales of two million five hundred thirty-nine thousand five hundred ninety-seven dollars ($2, 539, 597) were just over 50 percent of his annual quota. Id . at ¶ 60. Plaintiff received a Performance Improvement Plan, ("PIP") that required two million four hundred sixty thousand four hundred three dollars ($2, 460, 403) in bookings by the fourth quarter. Id . at ¶ 62. The Defendant also required Plaintiff to prepare a "Report weekly to detail all customer contact from previous week, including site meeting, phone calls, seminars and conferences, " with the first such report being due on November 7, 2012, as well as a monthly report "with a brief description of current projects." Id . at ¶ 63. On November 15, 2011, Plaintiff had not provided Willett his weekly reports. Id . at ¶ 67. Plaintiff's failure to do so continued for his remaining time with Defendant. Id . at ¶ 68. By November 2011, six area sales managers who failed to meet their annual quota, were placed on a PIP, including Plaintiff. Id . at ¶ 56.

On November 29, 2011, Plaintiff sent a letter to Kwan, Willett and Goldberg disputing his PIP. Id . at ¶¶ 70-71. Plaintiff also raised the 2009 Love incident and the 2010 sexual harassment complaints against him. Id . at ¶ 71. Plaintiff requested a "re-opening of the Sexual Harassment case" and a request to file "a charge of Racism or Reverse Racism against Love. Id . at ¶ 75. Plaintiff also disclosed his depression and explained that he was uncomfortable working with "the main contacts at 3 of my largest Enterprise Accounts, " who "are all gay men." Id . at ¶ 72, 74. Plaintiff also requested an account of his vacation time or time for his short-term disability." Id . at ¶ 75.

On December 1, 2011, Kwan responded that Promethean would consider Plaintiff for a short term disability:

First and foremost, we are concerned about your health. Your e-mail is Promethean's first notification of your diagnosis of depression. Promethean will do all that we can to provide you any assistance within our benefits guidelines. If your doctor recommends that you go on short term disability (STD) please contact me so that I can direct you through the application process. You will be required to submit a written doctor's recommendation in order to be approved for STD.

Id. at ¶ 76. As to Love, who had since left Promethean, Kwan invited Plaintiff to provide details of any racial discrimination against him for investigation. Id . at ¶ 77. Kwan also requested the identities of the cited gay business partners or contacts. Id . Kwan informed Plaintiff that for the sexual harassment complaint, she would "be happy to review this new evidence" and "review the evidence to determine if this new information requires re-opening the matter." Id . Kwan also provided Plaintiff his leave balance and FMLA leave. Id . Plaintiff did not request any accommodation for his cited depression nor provide any additional information about the 2010 sexual harassment charge against him or about the 2009 events with Love. Id . at ¶¶ 78-80. Plaintiff did not identify any gay persons to whom he referred. Id . at ¶ 81. Plaintiff provides his explanations why he failed to do, but the facts are that he did not provide any such information.

By January 2012, Defendant terminated 25 employees in its Reduction in Force ("RIF") plan. Id . at ¶ 82. Plaintiff was subject to the RIF because he was not responsive on his weekly reports nor had Plaintiff met his year-end quota. Id . at ¶¶ 85-86. By July 2012, none of the managers who had received PIPs were employed by Promethean. Id . at ¶ 89.

B. Conclusions of Law

"The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Advisory Committee Notes on Rule 56, Federal Civil Judicial Procedure and Rules (West Ed. 1989). Moreover, "district courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the opposing party was on notice that she had to come forward with all of her evidence." Celotex Corp. v. Catrett , 477 U.S. 317, 326 (1986); accord, Routman v. Automatic Data Processing, Inc. , 873 F.2d 970, 971 (6th Cir. 1989).

In Anderson v. Liberty Lobby, Inc. , 477 U.S. 242 (1986), the United States Supreme Court explained the nature ...

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