United States District Court, M.D. Tennessee, Nashville Division
ALETA A. TRAUGER, District Judge.
The defendant has filed a Motion for Summary Judgment (Docket No. 19), to which the plaintiff has filed a Response in opposition (Docket No. 26), and the defendant has filed a Reply (Docket No. 30). For the reasons stated herein, the motion will be granted.
The plaintiff, Joy Conkwright, worked for the defendant, the National Association of State Boards of Accountancy, Inc. ("NASBA"), from August 2007 until her termination on February 23, 2010. Conkwright worked as a Project Manager and as a Senior Project Manager within NASBA's Project Management Office ("PMO"). It appears that the PMO managed information technology projects involving other departments and groups within NASBA, performing functions that included overseeing, monitoring, and reporting on project budget estimates and expenditures, scheduling and organizing team meetings, and ensuring that projects progressed and were completed within target timelines and within budget. In her Complaint, Conkwright claims that NASBA (1) failed to promote her in 2009 because of her gender, (2) paid her less than similarly situated male employees, (3) sexually harassed her by creating a hostile work environment, and (4) terminated her in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC").
NASBA has moved for summary judgment on all claims. In support of its motion, NASBA has filed (1) a Memorandum of Law (Docket No. 22), (2) the transcripts of the deposition of Conkwright, the deposition of Janice Winslett, and the sworn testimony of John Fields (Docket Nos. 20 and 32),  and (3) a Statement of Undisputed Material Facts (Docket No. 21) ("NASBA's SUMF"). In response, Conkwright has filed a Response brief (Docket No. 26), the Declaration of Janice Winslett (Docket No. 26, Attach. No. 1),  and a Response to NASBA's SUMF (Docket No. 27). NASBA has filed a Reply (Docket No. 30).
Conkwright does not dispute any facts stated in NASBA's SUMF. Furthermore, Conkwright has not filed a separate statement of disputed material facts under Local Rule 56.01(c). As to substance, Conkwright's brief (1) is silent concerning her pay discrimination claim, and (2) does not acknowledge, let alone rebut, the defendants' arguments concerning the untimeliness of her failure to promote, pay discrimination, and sexual harassment claims. Aside from the Winslett Declaration, Conkwright has not filed any additional factual materials.
II. Pay Discrimination and Failure to Promote Claims
NASBA contends that Conkwright's pay discrimination and failure to promote claims are untimely and that Conkwright has also abandoned her pay discrimination claim by not addressing it in her Response. Conkwright has not responded to either argument.
First, given that Conkwright did not oppose dismissal of the pay discrimination claim in her Response brief, the court construes Conkwright as abandoning her pay discrimination claim. The claim is subject to dismissal on that basis alone.
Second, the pay discrimination and failure to promote claims are untimely. A Title VII plaintiff must bring suit within ninety days of receiving her right-to-sue letter ("RTS letter") from the EEOC. 42 U.S.C. § 2000e-5(f)(1) (current 2015); Lockhart v. Holiday Inn Express Southwind, 531 F.Appx. 544, 548 (6th Cir. 2013). Within the Sixth Circuit, there is a rebuttable presumption that "the ninety-day limitations term begins running  on the fifth day following the EEOC's mailing an RTS notification to the claimant's record residential address, by virtue of a presumption of actual delivery and receipt within that five-day duration." Graham-Humphreys Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 557 (6th Cir. 2000); see also Rucker v. Potter, 215 F.Appx. 406, 408 (6th Cir. 2007).
Here, in October 2009, Conkwright filed her first charge against NASBA with the EEOC (the "First Charge"), alleging gender-based pay discrimination and a claim for failure to promote. On June 24, 2010, the EEOC mailed her a RTS letter concerning the First Charge, which Conkwright believes that she received within four or five days. Conkwright filed this lawsuit on May 28, 2013, more than 1000 days after receiving her RTS letter. The pay discrimination and failure to promote claims are therefore untimely and subject to dismissal.
III. Facts Concerning Alleged Sexual Harassment
Conkwright claims that Joe Cote, NASBA's Chief Operating Officer ("COO"), made inappropriate comments at NASBA's office Christmas party each year from 2007 through 2009. On March 5, 2010, shortly after her termination, Conkwright filed a second charge with the EEOC (the "Second Charge"), alleging sexual harassment and retaliatory termination for filing her First Charge.
Under 42 U.S.C. § 2000e-5(e)(1), a party claiming discrimination must assert the claim in a charge filed within 300 days of the occurrence. See Risch v. Royal Oak Police Dep't, 581 F.3d 383, 386 n.2 (6th Cir. 2009) (noting that plaintiff could not recover for alleged discriminatory acts that took place more than 300 days before the plaintiff filed her EEOC charge). Conkwright's Second Charge, therefore, covered allegedly harassing activity that took place from May 9, 2009 forward ( i.e., within 300 days before filing the Second Charge). Conkwright does not assert a continuing violation theory, nor has she responded to NASBA's meritorious argument that Title VII's limitations provision bars her from recovering for activity that occurred before May 9, 2009. Therefore, the court finds that the sexual harassment claims premised on the 2007 and 2008 Christmas parties are time-barred and that only harassing activity that took place after May 9, 2009 will be considered. The court accordingly will summarize the facts relating to the 2009 Christmas party, which is the only post-May 9, 2009 incident that Conkwright references as involving sexually harassing conduct.
Conkwright claims that, at the 2009 Christmas party, Cote made offensive comments to the whole group in attendance at the event. First, Cote allegedly commented that co-worker Jan Winslett's breasts bounced when she walked, and that it looked like "butter churning" when they did so. Second, Cote allegedly "called out one of the guys in the licensing bureau, " although Conkwright could not recall any additional details about this comment.
IV. Facts Concerning Alleged Retaliation
In November 2008, Conkwright learned that the PMO Director position would be available, because the existing Director was planning to vacate the position. Conkwright and the PMO's other two Project Managers, John Fields and Tim Berry, all applied and interviewed for the position. In July 2009, NASBA chose to promote Fields to Director of the PMO. Conkwright was displeased and sought to obtain work in another group ( i.e., to leave the PMO) for the next several months, apparently without success.
In early August 2009, Conkwright received a performance evaluation from COO Cote. Out of nine categories of evaluation, Conkwright received a "3" (meaning "Exceeds Expectations") in three categories (Organization and Planning, Quality of Work, and Knowledge and Skill), a "2" (meaning "Meets Expectations") in five categories (Communications, Quantity of Work, Initiative and Motivation, Dependability, and Meeting Attainable Objectives), and a "1" (meaning "Does Not Meet Expectations") in the category of "Relationship with Others." With respect to the "1" rating, the review indicates that Conkwright's "demeanor can be intimidating, " that "when she is displeased, she displays her displeasure on her face and in other ways[, ]" that "some staff fear her reactions and find her overly combative, " and that "her persistence in trying to resolve an issue or monitor a project progress is often frustrating to other staff[.]" The evaluation suggested, among other things, that she "needs to appreciate more the importance of developing collegial, working relationships with all other staff." Conkwright disagreed with this criticism and, shortly after receiving the evaluation, wrote a memorandum in response to it.
At an unspecified point in October 2009, perhaps on October 6, 2009, Conkwright filed her First Charge. The record contains no indication that NASBA received a copy of this initial charge, and no one at NASBA told her that NASBA (or any individual) had received it.
On October 7, 2009, Fields wrote an email to Conkwright summarizing a previous discussion with Conkwright. Among other items, the email indicated that he would follow up with Conkwright ...