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Artis v. Finishing Brands Holdings, Inc.

United States District Court, W.D. Tennessee, Eastern Division

March 19, 2015

LOUIS ARTIS, Plaintiff,

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Louis Artis, Individually, Plaintiff: Brandon Elijah White, Charles H. Barnett, III, SPRAGINS BARNETT & COBB, PLC, Jackson, TN; Lewis L. Cobb, Jr., Teresa A. Luna, SPRAGINS BARNETT & COBB, Jackson, TN.

For Finishing Brands Holdings, Inc., Minnesota Corporation, Defendant: Carrie L. Sponseller, LEAD ATTORNEY, Robert J. Gilmer, Jr., Thomas A. Dixon, EASTMAN & SMITH LTD., Toledo, OH.

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Before the Court is Defendant, Finishing Brands Holdings, Inc.'s (" FB" ), motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket Entry (" D.E." ) 47.) Plaintiff, Louis Artis (" Artis" ), filed a response to which FB replied. (D.E. 56, 84.) Plaintiff also submitted a sur-reply. (D.E. 88.) For the reasons discussed below, Defendant's motion is GRANTED.

Evidentiary Matters

A. Plaintiff's Objections to Defendant's Statement of Undisputed Material Fact

Plaintiff objects to the conciseness of several paragraphs found in Defendant's Statement of Undisputed Material Fact (" SUMF" ). ( See D.E. 57 ¶ ¶ 4, 6--10, 12, 19--20, 23--24, 32--35, 38, 40--45, 47, 60.) In this district, the party moving for summary judgment, " [i]n order to assist the Court in ascertaining whether there are any material facts in dispute," is required to provide " a separate, concise statement of the material facts as to which the moving party contends there is no genuine issue for trial." LR 56.1(a), Local Rules of the United States District Court for the Western District of Tennessee (" Local Rules" ). Any objections to evidentiary materials offered in support of, or in opposition to a summary judgment motion, must be included in the response and identify

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the rule of evidence or other authority that establishes that evidence's inadmissibility. See Local Rule 56.1(e).

The local rules, and opinions from this district, do not define " concise statement." However, in denying a plaintiff's motion to strike a portion of the defendant's statement of undisputed material fact on conciseness grounds, the United States District Court for the Middle District of Tennessee held that the defendant did not violate that district's similarly-worded local rule because the employment dispute at issue involved several incidents occurring over a period of time. See Thompson v. Davidson Transit Org., 740 F.Supp.2d 938, 938--39 (M.D. Tenn. 2010). Similarly, this case involves allegations of employment discrimination covering an extended period of time. Defendant's SUMF is not unnecessarily lengthy--it is ten pages long, and consists of sixty numbered paragraphs that address the relevant facts underlying this lawsuit. Plaintiff's objections are OVERRULED.

Artis also alleges that Defendant's SUMF ¶ 48 is inadmissible. (D.E. 57 ¶ 48.) The SUMF states that the Employment Opportunity Commission (" EEOC" ) dismissed Plaintiff's EEOC charge, finding no evidence of discrimination. " A trial court has the discretion to allow an EEOC determination into evidence, even though these determinations are not per se admissible in all civil rights suits." Blakely v. City of Clarksville, 244 F.App'x 681, 683 (6th Cir. 2007); Alexander v. CareSource, 576 F.3d 551, 562 (6th Cir. 2009). While the EEOC's determination is not material to the Court's resolution of this matter, Plaintiff's objection is OVERRULED.

B. Defendant's Objections to Plaintiff's Responses to Defendant's SUMF

FB moves the Court to strike[1] or disregard paragraphs 5, 10, 12--13, 17, 19, 23, 31, 33, 39, 42--45, 47, 50, 52--53, 56 and 59 of Plaintiff's responses to its SUMF because they are irrelevant, legal conclusions, opinions, and/or speculation and therefore inconsistent with Local Rule 56.1(b). (D.E. 84 at 1--3.) Plaintiff insists these responses are the only way to present all of the necessary facts to defeat Defendant's motion. (D.E. 88 at 1--3.) Upon review of Artis's responses, the Court finds paragraphs 31, 37, 42, 53--54, and 58 of Defendant's SUMF undisputed, for the purposes of this motion, because he failed to provide record citations to support the disputed nature of these facts. See Fed.R.Civ.P. 56(e) (" If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: . . . (2) consider the fact undisputed for the purposes of the motion[.]" ).

As to Plaintiff's remaining responses, Local Rule 56.1(b) provides that non-movants " must respond to each fact set forth by the movant by either: (1) agreeing that the fact is undisputed; (2) agreeing that the fact is undisputed for the purposes of ruling on the motion for summary judgment only; or (3) demonstrating that the fact is disputed." Local Rule 56.1(b). The disputed facts must be accompanied by " specific citations to the record supporting the contention that such fact is in dispute." Id. The non-movant's response " may contain a concise statement of any additional facts that the non-movant contends are material and as to which the non-movant

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contends there exists a genuine issue to be tried." Id. The Court will examine each response to determine if it complies with Local Rule 56.1(b) and/or Fed.R.Civ.P. 56.

Paragraph 5.

Plaintiff disputes Defendant's SUMF that it does not have a formal position of Assistant Cell Leader by citing his job application for the Cell Leader position, Defendant's policy of paying employees who temporarily fill-in as Cell Leader a higher rate, and his allegation that he was stripped of his assistant Cell Leader duties after complaining about racial discrimination at work. (D.E. 57 ¶ 5.) The evidence relied on by Artis does not demonstrate that this fact is disputed. He admits Defendant had a policy of paying employees who temporarily filled-in as Cell Leaders a higher rate. (Dep. of Louis Artis (" Artis Dep." ) at 226--27, D.E. 50.) However, when the Cell Leader returned, that employee stopped receiving higher pay. ( Id.) None of this evidence demonstrates that " Assistant Cell Leader" was an official position at Defendant's Jackson, Tennessee facility. Therefore, the Court treats this SUMF as undisputed for the purposes of this motion.

Paragraph 10.

Artis disputes Defendant's SUMF that he had been encouraged by FB management to seek advancement in the company by citing to record evidence, including his deposition where he testified that, after expressing interest in the Department 2195 Cell Leader position, all encouragement ceased, and he experienced retaliation. (D.E. 57 ¶ 10.) However, Plaintiff also testified that he had received encouragement from his superiors to seek advancement. (Artis Dep. at 82--85, D.E. 50.) Regardless, the Court considers this SUMF disputed to the extent Plaintiff alleges there was a change in his treatment at work after expressing an interest in the Cell Lead position.

Plaintiff also disputes Defendant's SUMF that it approved and paid for him to attend a continuing education course by citing to the reimbursement records. (D.E. 57 ¶ 10.) That evidence does not put the SUMF in dispute. The records show that in 2011, Plaintiff completed a course with Defendant's approval. ( See D.E. 50-1 at 13--14.) It is undisputed that Defendant reimbursed this cost. ( Id.; Artis Dep. at 97--99, D.E. 50.) The remainder of Plaintiff's response to Defendant's SUMF alleges that the work environment changed after he expressed interest in the Cell Leader position, and that Plaintiff had more education than Sherry Childs (" Childs" ), the employee who received the promotion. ( See D.E. 57 ¶ 10.) Therefore, the Court finds as undisputed, for the purposes of this motion, the fact that Plaintiff took a continuing education course and was reimbursed by Defendant. The Court recognizes Plaintiff's response comparing his educational background to Childs, and his response that Defendant treats African American employees differently.

Paragraph 12.

Artis disputes Defendant's SUMF listing the numerical score and pay raise he received following his 2011 annual performance evaluation by referencing complaints his supervisor, Tom Weaks (" Weaks" ), wrote on the evaluation concerning Plaintiff's lack of organizational skills and trouble-shooting capabilities. (D.E. 57 ¶ 12.) The evidence Plaintiff relies on does not call in to dispute the fact that he was evaluated on March 14, 2012 and given that numerical score and pay raise. It is uncontested that, on the same day, Plaintiff conducted a self-evaluation and gave himself the numerical score listed in Defendant's SUMF. Therefore, the Court treats these facts as undisputed for the purposes of this motion. The Court recognizes Plaintiff's response disputing the basis for Weaks's written complaints on his 2011 evaluation.

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Paragraph 13.

Plaintiff disputes Defendant's SUMF listing the numerical score Childs received on her 2011 annual evaluation. (D.E. 57 ¶ 13.) He does not provide any evidence challenging the accuracy of this score, but instead offers argument alleging that Weaks gave Childs a higher score to support his decision to promote her to Cell Leader. ( Id.) Therefore, the Court treats this fact as undisputed for the purposes of this motion, and recognizes Plaintiff's response concerning Weaks's allegedly improper motives.

Paragraph 17.

Plaintiff contests Defendant's SUMF that the reasons Weaks promoted Childs were her superior assembly and organizational skills by citing to former FB employee Jerry Day's (" Day" ) deposition, the Department 2195 Cell Leader job description, the interview matrices, and other record evidence. (D.E. 57 ¶ 17.) His response lays out, in detail, his argument that Weaks's reasons for promoting Childs were pretextual. This text is taken almost verbatim from Plaintiff's response to Defendant's motion for summary judgment. ( See D.E. 56 at 6--9.) Therefore, the Court considers this fact undisputed to the extent Weaks stated those were his reasons for promoting Childs, and recognizes Plaintiff's response contending those reasons were pretextual.

Paragraph 19.

Plaintiff disputes Defendant's SUMF that Weaks told Plaintiff he was disorganized prior to interviewing him for the Cell Leader position by citing to his deposition and its exhibits. (D.E. 57 ¶ 19.) Therefore, the Court treats this fact as disputed.

Paragraph 23.

Relying on the evidence cited in his response to paragraph 17, Plaintiff disagrees with Defendant's SUMF that Weaks made the decision to promote Childs based on, among other factors, his direct observation of her performance as her supervisor. (D.E. 57 ¶ 23.) Therefore, the Court treats this fact as undisputed that those were Weaks's stated reasons, and recognizes Plaintiff's response contending they were pretextual.

Paragraph 33.

Plaintiff admits this fact is uncontested, but offers additional citations that expand on Childs's workplace behavior. (D.E. 57 ¶ 33.) Therefore, the Court treats this fact as undisputed and will consider the additional citations.

Paragraph 39.

Artis disputes Defendant's SUMF that he never informed anyone at FB that he was offended by Childs's statements listed in SUMF ¶ 38 by citing his deposition. (D.E. 57 ¶ 39.) On pages 114--16 of his deposition, Plaintiff recalled a conversation he had with Day about alleged discrimination at FB. ( Id.) However, this discussion occurred after Day's employment was terminated, so it does not dispute Defendant's SUMF. Plaintiff cites pages 191--93, but this testimony focused on his complaints to FB management about other issues, not Childs's statements. Plaintiff cites page 204, but this testimony dealt with Plaintiff's concerns over Childs's promotion, not her statements. Plaintiff references pages 241--47, but he is describing his dissatisfaction with Weaks for never generally disciplining Childs, not her statements mentioned in Def.'s SUMF ¶ 38. Finally, Plaintiff cites pages 353--55, but nothing in that excerpt concerns reporting Childs's statements. Plaintiff does testify, however, that he never told Childs those comments were inappropriate. ( Id. at 130--34.) He has failed to provide " specific citations to the record supporting the contention that such fact is in dispute." Local Rule 56.1(b). Therefore, the Court will treat this fact as undisputed for the purposes of this motion.

Paragraph 43.

Artis differs with Defendant's SUMF that several FB employees saw a rubber chicken hanging by a noose in " funny places", and that the rubber chicken would be placed in different locations

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throughout the facility as a joke, by citing to depositions that described the chicken as offensive. (D.E. 57 ¶ 43.) Therefore, this fact is disputed for the purposes of this motion.

Paragraph 44.

Plaintiff disputes Defendant's SUMF stating that Danny Selph is not a manager/supervisor by citing to depositions and other record evidence. (D.E. 57 ¶ 44.) The fact concerning Selph's employment rank is disputed for the purposes of this motion. Also disputed is Defendant's SUMF that Plaintiff never complained to anyone at FB after receiving two books from Selph, or that Selph is his supervisor. ( Id.) It is undisputed, for the purposes of this motion, that Plaintiff never complained about receiving the books from Selph and that Selph never worked in Plaintiff's department or supervised him. (Artis Dep. at 247, 261--62, D.E. 50; Deposition of Danny Selph (" Selph Dep." ) at 104, D.E. 70-3.) The Court recognizes Plaintiff's response alleging that he was offended after receiving the books.

Paragraph 45.

Artis disagrees with Defendant's SUMF describing Selph's stated motivation for giving the books to the extent it infers that the books did not personally offend him, or that Selph has not made racist comments while working at FB, by citing to deposition excerpts, including Marcus Tyus's (" Tyus" ) deposition and Robert Williams's affidavit. (D.E. 57 ¶ 45.) However, the cited portions of Tyus's testimony do not mention Selph making any racist comments while working at FB. ( See Dep. of Marcus Tyus (" Tyus Dep." ) at 45--51, D.E. 69-1.) Williams's affidavit, as discussed below, is inadmissible, and, in any event, does not reference Selph making racist remarks, or displaying racism at work. ( See D.E. 67-1.) Plaintiff cites four excerpts from his own deposition, but none address whether Selph made racially offensive remarks while employed at FB. The closest relevant testimony is him relaying a story Selph told co-workers about giving an African American female a ride home. (Artis Dep. at 297--98, D.E. 50.) Plaintiff testified that he was not sure if this was a true story or joke, and admitted he had no knowledge about the story's background. ( Id.) Therefore, for the purposes of this motion, it is undisputed that Selph has not made racially offensive remarks in the past. The Court recognizes Plaintiff's response that he was personally offended after receiving the books.

Paragraph 47.

Plaintiff does not dispute Defendant's SUMF that he only alleged Title VII racial discrimination in his June 26, 2012 EEOC charge, but notes that he brought a hostile work environment and retaliation claim under the THRA and Title VII in the present action.

Paragraph 50.

Plaintiff does not dispute Defendant's SUMF that he never applied for a management position but adds that there are no African American managers at the Jackson, Tennessee facility. (D.E. 57 ¶ 50.) The Court recognizes Plaintiff's response and will consider it for the purposes of this motion.

Paragraph 52.

Plaintiff disputes Defendant's SUMF that he has no personal knowledge of the rate at which African American employees are disciplined as compared to Caucasian employees by citing Day's deposition. (D.E. 57 ¶ 52.) The Court will address this statistical evidence.

Paragraph 56.

Plaintiff disputes Defendant's SUMF that he has no personal knowledge of FB employing individuals in management/supervisory roles who are known to display racially discriminatory behavior by citing his discriminatory atmosphere evidence. (D.E. 57 ¶ 56.) The Court recognizes Plaintiff's response and will consider it for the purposes of this motion.

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Paragraph 59.

Plaintiff disputes Defendant's SUMF that since filing his EEOC charge he has not been disciplined to the extent the SUMF infers that management has not ignored his complaints of retaliation and racism. (D.E. 57 ¶ 59.) Plaintiff's response does not dispute the fact that, since filing his EEOC charge, he has not been formally disciplined. Therefore, the Court will consider this fact undisputed for the purposes of this motion and recognizes Plaintiff's response that he believes his complaints were being ignored.

C. Robert Williams's Affidavit

FB challenges Robert Williams's affidavit as being unsworn, lacking specificity, and containing conclusory allegations in violation of Fed.R.Civ.P. 56. (D.E. 84 at 3--4.) Under Rule 56, " [a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4). An affidavit must also be " sworn to before a notary public [or] signed under penalty of perjury pursuant to 28 U.S.C. § 1746." CareToLive v. Food and Drug Admin., 631 F.3d 336, 345 (6th Cir. 2011).

Williams submitted an affidavit that he signed and dated on February 8, 2013. (D.E. 67-1.) The February 8 statement is not notarized or signed by Williams under penalty of perjury. On November 17, 2014, he added the following notation: " I wrote this for Louis Artis on 2-8-13." This statement was notarized by a valid Tennessee notary public. However, the Court concludes that this affidavit should be disregarded for the purposes of this motion. See Hart v. Lutz, 102 F.App'x 10, 13 (6th Cir. 2004) (affirming district court's decision to disregard affidavits that were not sworn or otherwise subscribed pursuant to 28 U.S.C. § 1746, even though their certificates of service were sworn and notarized). Williams's affidavit presents a similar problem, as the statement describing discrimination at Defendant's Jackson, Tennessee facility was neither sworn nor otherwise subscribed. The only statement that was notarized is the November 17, 2014 statement, " I wrote this for Louis Artis on 2-8-13."

Additionally, even if the affidavit was properly executed, it is unclear how Williams has personal knowledge to testify on these matters because he failed to list his dates of employment, what position he held, or when this discrimination occurred. See Fed.R.Civ.P. 56(c)(4) (" An affidavit or declaration . . . must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." ). Based on these circumstances, the Court will disregard Williams's affidavit for the purposes of this motion.


Since 2000, Artis, an African American male, had been employed at FB's Jackson, Tennessee facility that specializes in the manufacture of spray guns and fluid handling equipment for industrial finishing applications. (Def.'s SUMF ¶ ¶ 1--3, D.E. 48.) He began working as a machine operator and was later assigned to the buffing department. ( Id. ¶ ¶ 3--4.) In August 2009, with the encouragement of FB's former human resources manager, Mitchell Hall (" Hall" ), Plaintiff applied for an Assembler position in Department 2195's Pump Cell. ( Id. ¶ 6.) Artis was interviewed by Assembly Production Supervisor Tom Weaks (" Weaks" ), who offered him the position, which he currently holds. ( Id. ¶ ¶ 2, 7.) Sherry Childs (" Childs" ), a Caucasian female, was already employed as an assembler in Department 2195 when Artis joined it. ( Id. ¶ 8.) During this time, Department 2195 did not have a Cell Leader, so Weaks

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and the other assemblers--including Artis and Childs--performed the Cell Lead duties. ( Id. ¶ 9.)

In 2011, with the support and encouragement of FB management, including Hall, Weaks, and Director of Manufacturing Bob Battle (" Battle" ), Artis completed a continuing education course focusing on the fundamentals of supervision and management. ( Id. ¶ 10.) On March 14, 2012, Weaks conducted the 2011 performance evaluation of Artis, giving him an overall score of 3.5/5.0, while Artis gave himself a similar score in his self-evaluation. ( Id. ¶ 12.) On the same date, Weaks conducted Childs's 2011 performance evaluation, resulting in a score of 3.88/5.0. ( Id. ¶ 13.)

Sometime in early March/late February 2012, Weaks, Battle and Kim Quick met to discuss potential job openings, including filling the still-vacant Cell Leader position in Department 2195. (Day Dep. at 84, D.E. 63-1; Weaks Dep. at 136--38, D.E. 61.) On March 1, 2012, Day sent an email to Human Resources Director Betty Schultz (" Schultz" ), memorializing this meeting. (D.E. 65-2 at 29.) Day's email explained that " Bob met with Tom Weeks [sic] and Kim Quick to discuss their load. They recommend the following changes. . . . Post position of Cell Leader over pumps. Their recommendation is Sherry Childs. Not sure if I agree." ( Id.)

On March 16, 2012, FB posted the Department 2195 Cell Leader position. (Def.'s SUMF ¶ 14, D.E. 48.) Artis and Childs applied and were interviewed by Weaks and Day. ( Id. ¶ 15; Weaks Dep. at 85, D.E. 61.) Even though both were qualified, Weaks told Artis he chose Childs because she was his most skilled assembler and had better organizational skills. (Def.'s SUMF ¶ ¶ 16--18.) Despite Childs receiving the promotion, Weaks encouraged Artis to apply for future Cell Leader openings. ( Id. ¶ 27.) The Department 2195 Cell Leader position is the only Cell Lead position Artis has applied for while employed by Defendant. ( Id. ¶ 29.)

After Childs's promotion, Artis's working relationship with her became " very difficult at times," with Childs criticizing his work to other employees in Department 2195, and being " snappy" . ( Id. ¶ 32.) Plaintiff complained about Childs's behavior to Weaks and Operations Manager Pete Kurtz (" Kurtz" ), who suggested everyone meet to discuss the situation. ( Id. ¶ 33.) Kurtz investigated Artis's complaints and held a meeting on September 30, 2013 with Weaks, Artis, and Childs. ( Id. ¶ 34; D.E. 50-1 at 42.) There, the parties discussed their working relationship. (Def.'s SUMF ¶ 34, D.E. 48.) Both employees expressed their frustration with the other and apologized, with Artis stating there was no longer hostility between them. ( Id. ¶ 35.)

On June 26, 2012, Plaintiff filed a complaint with the EEOC, asserting that he was discriminated against based on his race by Defendant when he was not promoted to Cell Leader of Department 2195. ( Id. ¶ 47.) Upon receiving his right-to-sue notice, he brought this action on March 12, 2013, alleging racial discrimination, a hostile work environment, and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq., and the Tennessee Human Rights Act (" THRA" ), Tenn. Code Ann. § 4-21-101, et seq. ( See D.E. 1.)

Legal Standard

Rule 56 provides in pertinent part that " [t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court is to " view facts in the record and reasonable inferences that can be drawn from those facts in the light most favorable to the nonmoving party." Canady v. Gillette Co., 547 F.App'x 670, 677 (6th Cir. 2013)

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(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). It is not to " weigh evidence, assess credibility of witnesses, or determine the truth of any matter in dispute." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must determine " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014) (quoting Anderson, 477 U.S. at 251--52).

The moving party " has the initial burden of showing the absence of a genuine dispute as to a material fact." Automated Solutions Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 520 (6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the motion is properly supported, " the opposing party must go beyond the contents of its pleadings to set forth specific facts that indicate the existence of an issue to be litigated." Slusher v. Carson, 540 F.3d 449, 453 (6th Cir. 2008) (citation omitted). The nonmoving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson, 477 U.S. at 248--49. 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. A court must grant summary judgment " after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.


A. Race Discrimination[2]

Plaintiff insists that Defendant's failure to promote him to Cell Leader was race discrimination actionable under Title VII and the THRA. (Compl. ¶ ¶ 10--20, 28, D.E. 1.) Title VII makes it unlawful for an employer " to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The THRA does so as well. See Tenn. Code Ann. § 4-21-401(a)(1). The analysis for discrimination claims brought under Title VII and the THRA is the same. See Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 757 (6th Cir. 2012) (" Tennessee courts look to federal cases applying federal anti-discrimination statutes as the baseline for interpreting and applying the THRA." ).

In order to survive summary judgment on these claims, Artis " must present either direct or circumstantial evidence that [this] action[] [was] motivated . . . by racial animus." Reed v. Procter & Gamble Mfg., 556 F.App'x 421, 428 (6th Cir. 2013). He does not present any direct discrimination evidence; therefore his claims will be assessed using the McDonnell Douglas burden-shifting framework. See Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 347 (6th Cir. 2012) ( " The three-step framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),

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guides the analysis of discrimination claims based upon circumstantial evidence." ); Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir. 2007) (applying the McDonnell Douglas burden-shifting framework to THRA claims). If Artis can establish a prima facie case of racial discrimination, the burden of production shifts to FB to offer a legitimate, non-discriminatory reason for its decision to promote Childs over Artis. Id. He can then prevail by showing that FB's stated reason was pretextual. Id. The plaintiff has the burden of persuasion at all times, regardless of which party bears the burden of production. Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 675 (6th Cir. 2013).

For purposes of this motion, FB concedes that Artis can establish a prima facie case of race discrimination. (D.E. 47-1 at 4.) The parties dispute whether FB has provided a legitimate, non-discriminatory reason for promoting Childs over Artis, and whether Artis has shown that that FB's reasons were pretexual.

1. Legitimate, Non-Discriminatory Reason

Weaks decided to promote Childs to Cell Leader based on his direct observation and supervision of both candidates, and her higher 2011 evaluation score. ( Id. at 4--5; Aff. of Tom Weaks (" Weak Aff." ) at ¶ 7, D.E. 50-7.) Weaks noted that Childs trained employees at the Cell Leader level, was the department's highest producing Assembler, and covered for other Cell Leaders when necessary. ( Id.) Childs received a 3.88/5.0 on her 2011 evaluation, while Artis received a 3.5/5.0.[3] ( Id.) She also had more seniority as an assembler in Department 2195. ( Id. ¶ 5.) " Selecting a more qualified candidate constitutes a legitimate, non-discriminatory reason." Hawkins v. Memphis Light Gas and Water, 520 F.App'x 316, 319 (6th Cir. 2013) (citing Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 815 (6th Cir. 2011)). This legitimate and non-discriminatory reason shifts the burden of production back on Artis to " point out 'evidence from ...

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