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Dumm v. Rutherford County

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

March 30, 2015

KATHY DUMM, et al., Plaintiffs,
v.
RUTHERFORD COUNTY, et al., Defendants.

MEMORANDUM

WILLIAM J. HAYNES, Jr., District Judge.

Plaintiffs, Cathy Dumm and Jane Zumbro, filed this action under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. Section 2000e et seq., and 42 U.S.C. ยง 1983 against the Defendants Rutherford County Tennessee, Bill Boner, Rutherford County's Property Assessor, and Ray Duggin, a supervisor in the Rutherford County Property Assessor's Office. Plaintiffs, former employees of the Rutherford County Property Assessor's Office, allege sexual discrimination and retaliation by the defendant Boner and also allege that the Defendant Duggin, their supervisor, acquiesced or failed to take remedial measures to stop Boner's sexually harassing conduct. Plaintiffs also assert state law claims under the Tennessee Human Rights Act, Tennessee Code Annotated Section 4-21-401 et seq., as well as state common law claims of intentional infliction of emotional distress and outrageous conduct.

Before the Court is the Defendants' motion for partial summary judgment (Docket Entry No. 36), contending, in essence, that Plaintiffs' Title VII claims against the individual defendants fail as a matter of law and that Plaintiffs' proof fails to meet the standards for their state law claims for intentional infliction of emotional distress and outrageous conduct. In response, Plaintiffs concede that the individual defendants are not liable for their Title VII claims, but argue that their proof of Defendant Boner's sexual comments and their inferences about the Defendant Boner's conduct are sufficient for a judgment on the Plaintiffs' state law claims.

A. Review of the Record[1]

Plaintiffs were employed at the Rutherford County Property Assessor's Office with Dumm being hired in April 1995 and Zumbro in July 2006. Plaintiffs were terminated on November 2, 2011. According to the Plaintiffs' proof, Defendant Boner commenced his term as a Rutherford County Property Assessor in August 2008, and Defendant Duggin had worked for the Assessor's Office since 2007.

As to the Plaintiffs' termination on November 2, 2011, Plaintiffs contend that their terminations were caused by their complaints about Defendant Boner's inappropriate sexual conduct in the Assesor's office that Plaintiffs contend created a hostile work environment at the Assessor's Office. The Defendants' proof is that the Plaintiffs were terminated for excessive gossiping on the job that continued even after they were warned and separated. Plaintiffs' offices had to be separated to stop the gossiping that, Defendants contend, interfered with the work of the Assessor's Office.

For the purposes of this motion, the specifics of the Plaintiffs' claims are that Boner engaged in constant discussions of his unhappy marriage that he described as the worst mistake in his life. According to the Plaintiffs, Defendant Boner singled out Dumm, whom Plaintiffs describe as having the same name and hair color as the mother of Boner's daughter. (Docket Entry No. 39, Memorandum at 2, citing Dumm Deposition at p. 37). Plaintiffs infer that Boner "implied that he had the same feelings for Ms. Dumm." Id . (citing Dumm Deposition at p. 36). Boner is also cited as commenting on a client's and a family member's breasts and whether the clients had plastic surgery. Id . (citing Dumm Deposition at p. 50). According to Dumm, Boner frequented her work area that she asserts was to stare at her and look down her blouse. Id . (citing Dumm Deposition at p. 40 and Zumbro Deposition at p. 96). According to Dumm, when she asked Boner what he wanted, Boner replied, "You know what I want." Id . (citing Zumbro Deposition at p. 102). Boner would then state, "I got to get out of here, " that Plaintiffs assert "suggest that he had an erection." Id . (citing Dumm Deposition at p. 59). Zumbro asserts that she observed Boner "pull[] a chair up to Ms. Dumm and squeeze his legs together" that Zumbro states was "to control his erection." Id . (citing Zumbro Depostion at p. 96). According to Dumm, Boner gave her his cell number and stated he was disappointed when Dumm had not called him. Id . (citing Dumm Deposition at p. 62).

According to Dumm, Boner would approach her in the presence of other employees that Dumm considered was "with the intention of rubbing against her breasts." Id. at 3 (citing Dumm Deposition at p. 43). Dumm asserts that she endured these incidents because she was afraid of being terminated, id. (citing Dumm Deposition at p. 47; Zumbro Deposition at p. 102) and, because Boner did not like smoking, Dumm gave up smoking to avoid termination. Id . (citing Dumm Deposition at p. 77). Dumm describes Boner's insistence on hugging her, and Boner would squeeze Dumm so as to press her breasts against him. Id . (citing Dumm Deposition at p. 53). On one occasion, Dumm states that Boner "bumped" his genitals against her arm in Duggin's presence, and when Dumm adjusted her arm to avoid the contact, Boner moved to continue the inappropriate conduct. Id . (citing Dumm Deposition at p. 46). Dumm states that she then stood and left the work area to avoid any further contact. Id . Dumm cites one Boner comment about her posterior that Dumm states caused her to gain weight to make herself less attractive. Id . (citing Dumm Deposition at p. 73). Dumm also wore unattractive clothes to stop Boner's approaches. Id . (citing Dumm Deposition at p. 80).

As to sexual comments, Dumm asserts that Boner called her an "asshole" in Zumbro's presence and that Boner told Plaintiffs that he was considering placing a port-a-potty in their office because the Plaintiffs went to the bathroom so much. Id . (citing Boner Deposition at pp. 87-88). According to Plaintiffs, on September 21, 2011, they met with Duggin about Boner's statements to female employees, including the port-a-potty statement. Id. at 4 (citing Duggin Deposition pp. 23, 29-30). Duggin asked Dumm if she would like to file a complaint. Id . The next day, at another meeting with Plaintiffs, Duggin, Marty, Francis, a supervisor, Oxsher, a supervisor, Blythe and Boner, Zumbro voiced her complaints about Boner's statements. According to Francis and Zumbro, Boner responded that for him to be more comfortable he would move Zumbro to another work station that was away from Dumm. Id. at 4 (citing Francis Deposition at p. 42; Zumbro Deposition at p. 100). Dumm was asked to give Duggin any information about Zumbro's complaint, but Dumm also expressed her concerns about Boner's conduct. Id . (citing Dumm Deposition at pp. 107, 133-34).

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 [he] had to come forward with all of [his] 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 of a motion for summary judgment:

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.
As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

477 U.S. at 247-48 (emphasis in the original and added in part). Earlier the Supreme Court defined a material fact for Rule 56 purposes as "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).

A motion for summary judgment is to be considered after adequate time for discovery. Celotex, 477 U.S. at 326 (1986). Where there has been a reasonable opportunity for discovery, the party opposing the motion must make an affirmative showing of the need for additional discovery after the filing of a motion for summary judgment. Emmons v. McLaughlin, 874 F.2d 351, 355-57 (6th ...


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