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Garcimonde-Fisher v. Area203 Marketing, LLC.

United States District Court, E.D. Tennessee, Chattanooga

April 27, 2015

AREA203 MARKETING, LLC., Defendant.


CURTIS L. COLLIER, District Judge.

Before the Court is Defendant Area203 Marketing's ("Defendant") motion for summary judgment (Court File No. 36). Plaintiffs Lauren Garcimonde-Fisher ("Plaintiff Garcimonde-Fisher"), Jeffrey L. Harris (Plaintiff Harris"), and Jeffrey L. Cole ("Plaintiff Cole") (collectively "Plaintiffs") responded (Court File No. 39) and Defendant replied (Court File No. 40). For the reasons set forth below, the Court will GRANT IN PART and DENY IN PART the Defendant's motion for summary judgment (Court File No. 36).


Defendant Area203 Marketing is a marketing company owned by Carey Brown ("Brown") which was originally formed to provide marketing services for Brown's payday lending businesses and other affiliated businesses. Prior to November 2009, it was known as Logic Marketing. Brown is a practitioner of evangelical Protestantism and was, at the time of these events, a Southern Baptist. James Cole helped Brown run some of his companies and served a human resources role for the management team of Area203. Ron Beaver was brought into the Area203 management team as Chief Operating Officer after Plaintiff Cole was terminated.

Brown believed his businesses should reflect his values. The offices of Area203 were saturated with religious, particularly Evangelical Christian, imagery. The walls were decorated with Judeo-Christian artwork and biblical posters, and placards of the Ten Commandments graced rooms throughout the office. Materials with religious messages and solicitations for donations to overtly religious charities were distributed to employees. The break room had a TV that looped Christian movies all day long. Religious charities were invited to give presentations employees were required to attend and allowed to solicit donations from employees. For part of the time Plaintiffs were employed at Area203, Area203 kept a chaplain on staff, R.C. Reynolds, who hosted prayer meetings and bible studies scheduled during work.[1]

R.C. Reynolds' tenure at Area203 is the subject of some controversy. Both parties agree he did tell employees his Bible studies were mandatory, he aggressively promoted his religion in the workplace (e.g. he told employees the King James Version was the "correct" version of the Bible), and he told employees Brown himself had stated attendance was required. But Area203 claims Reynolds was not acting in accord with Brown's wishes and asserts Brown took action against Reynolds; first by sending James Cole to tell him to stop and then-when he refused to do so-removing him from the premises. It is also unclear whether Reynolds was actually on Area203's payroll or whether Area203 merely made donations to Reynolds' charity. Brown does admit he never sent any message to his employees clarifying that the prayer meetings and bible studies were not required.

Brown himself was accused of making derogatory comments regarding faiths other than his particular brand of Christianity. In the presence of Plaintiff Jeff Cole, a Catholic, he stated the King James version of the Bible was the "correct" version of the Bible (Pl. Cole Dep. 199). He also stated that a Catholic was not the "right kind of Christian" to Plaintiff Garcimonde-Fisher, also a Catholic (Garcimonde-Fisher Dep. 225). Brown was openly defiant about the extent to which he brought religion into the workplace. At a February 2010 meeting with employment counsel and several members of Area203's senior management team, in the wake of Plaintiff Jeff Cole's termination and subsequent EEOC complaint, Brown stated those who find the religious materials decorating the walls discriminatory can just quit. Defendant disputes whether these events occurred.

Plaintiffs allege these religious predilections extended to Area203's clients. In September 2008, Plaintiffs Garcimonde-Fisher and Cole met with a client of Area203, Naomi Crain. During the meeting she emphasized her close relationship with Brown and implied that she could have someone terminated if they were not the right kind of Christian. She and Brown both commented to Plaintiff Garcimonde-Fisher that a Catholic was not the "right kind" of Christian (Garcimonde-Fisher Dep. 225).[2] And, after a meeting, she requested one Area203 employee-a person she described as a "good Christian"-be the only one to remain on her account stating that no one else aligned with her goals.

Each year, Area203 hosted a Christmas Party for its employees. In 2008, James Cole opened the Christmas party with a sermon focusing on the ongoing battle against evil, abortion, and homosexuals (Pl. Cole Dep. 134; Garcimonde-Fisher Dep. 120). At the 2009 Christmas party, Brown opened the event by introducing Ron Beaver (the new Chief Operating Officer who had partially replaced Plaintiff Cole) as someone who is a good Christian aligned with his faith and beliefs (Harris Dep. 163). At that same party, the employees were given gifts: a book about family, a book about abortion, and a "Horton Hears a Who" DVD (to demonstrate the importance of even the smallest things) (Harris Dep. 164).

In 2009, Area203 also hosted a "family fun day" for its employees at Fort Bluff Camp. Employees were required to attend a twenty-minute religious service in a chapel and sit through an additional thirty-minute religious presentation by Compassion International, an evangelical charity (Garcimonde-Fisher Dep. 124-26). At the end of this presentation, Compassion International solicited donations from the employees to support their work ( id. )

Plaintiff Jeffrey Cole was hired as President of Area203 in November 2008. He reported directly to James Cole, who reported directly to Carey Brown. Plaintiff Cole alleges he reported both his and his subordinate's objections to the required religious events during his tenure at Area203. Plaintiff Cole submitted an expense report for mileage in late June 2009. Brown reviewed the reimbursement request and determined it to be false. Brown had traveled with Plaintiff Cole and knew Plaintiff Cole had rented a car rather than driving his own and was therefore ineligible to receive compensation for the mileage on the rental car. Plaintiff Cole was terminated in July 2009. After his termination, Brown told a newly hired Area203 employee Brown had terminated Plaintiff Cole because he was not the right kind of Christian.

Plaintiff Jeff Harris was hired in June 2009 as creative director and later partially replaced Plaintiff Cole as interim President. Plaintiff Harris was approached by Reynolds on several occasions inquiring why he was not in the bible studies. Plaintiff Harris also recalled a meeting with Naomi Crain where he was told that she wants "good Christians" for her work and that Plaintiff Harris, as a Catholic, does not read the "right" Bible. At the late February 2010 meeting with the company lawyer referenced above, Plaintiff Harris was singled out for his religion. It was in partial response to Plaintiff Harris' comments that Brown stated that if anyone did not like the religious material in the office, he could quit.

Plaintiff Lauren Garcimonde-Fisher was hired in March 2008 as a designer. In October 2008, Plaintiff Garcimonde-Fisher was promoted to director of interactive services and in April 2009 she was promoted to Vice President of Operations. After being required to attend the 2009 Christmas party, the family fun day, and other religious events, she complained to her supervisors, Plaintiffs Cole and Harris, who relayed her objections up the chain. She also objected to being required to attend events where religious charities solicited donations from, Area203 employees. She felt her attendance at these and other religious events were monitored by Brown, Beaver and James Cole.

Plaintiffs Harris and Garcimonde-Fisher hired Garcimonde-Fisher's husband, Jono Fisher for a photo shoot. They submitted two invoices for the project, both under $1000, but that Ron Beaver thought violated his policy that any expenditure over $1000 be pre-approved because they should have been submitted as one invoice. The parties dispute whether this actually violated the policy. Defendant asserts that this and other performance related problems resulted in the terminations of Plaintiffs Harris and Garcimonde Fisher.

Plaintiffs filed this action in - alleging a religiously hostile work environment, religious discrimination, and retaliation for their objections.


Summary judgment is proper when "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 moving party bears the burden of demonstrating no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). The Court should view the evidence, including all reasonable inferences, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001).

To survive a motion for summary judgment, "the non-moving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial." Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). Indeed, a "[plaintiff] is not entitled to a trial on the basis of mere allegations." Smith v. City of Chattanooga, No. 1:08-cv-63, 2009 WL 3762961, at *2-3 (E.D. Tenn. Nov. 4, 2009) (explaining the court must determine whether "the record contains sufficient facts and admissible evidence from which a rational jury could reasonably find in favor of [the] plaintiff"). In addition, should the non-moving party fail to provide evidence to support an essential element of its case, the movant can meet its burden of demonstrating no genuine issue of material fact exists by pointing out such failure to the court. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

At summary judgment, the Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). If the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, the Court should grant summary judgment. Id. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).


Defendant argues the Court should grant summary judgment for several reasons. Procedurally, Defendant argues Plaintiff Harris is judicially estopped from pursuing his claims and Plaintiffs Garcimonde-Fisher and Harris failed to exhaust administrative remedies as to some of their claims. Substantively, Defendant argues Plaintiffs have failed as a matter of law to put forth evidence sufficient to support their respective prima facie cases of a hostile work environment, retaliation, and discrimination.

A. Procedural Defenses

1. Judicial Estoppel

Judicial estoppel is an equitable doctrine that "bars a party from (1) asserting a position that is contrary to one that the party has asserted under oath in a prior proceeding where (2) the prior court adopted the contrary position either as a matter or as part of a final disposition.'" Lorillard Tobacco Co. v. Chester, Willcox & Saxbe, LLP, 546 F.3d 752, 757 (6th Cir. 2008) (quoting Browning v. Levy, 283 F.3d 761, 775 (6th Cir. 2002)). This doctrine "preserve[s] the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship.'" Browning, 283 F.3d at 776 (quoting Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990)). Although there is "no set formula for assessing when judicial estoppel should apply, " In re Commonwealth Inst. Sec., 394 F.3d 401, 406 (6th Cir. 2005), at a minimum, "a party's later position must be clearly inconsistent with its earlier position for judicial estoppel to apply." Lorillard Tobacco, 546 F.3d at 757 (internal quotation marks omitted).

Plaintiff Harris filed for Chapter 13 bankruptcy in December 2009. As part of Plaintiff Harris's bankruptcy filing he was required to disclose his personal property, including "contingent and unliquidated claims of every nature" (Court File No. 36-8, p. 12). At the time of his initial filing, Plaintiff Harris stated he had none ( id. ). Plaintiff Harris argues this position was not contrary to his current position, because, at the time of his initial filing, December 2009, he had no claims against Defendant, as he had not yet been fired (Court File No. 39, Pls.' Resp. at 18). Defendant argues Plaintiff Harris had a continuing duty to update his disclosures and should have reported the claim once he was terminated. Plaintiff Harris however, points out that when he converted his Chapter 13 bankruptcy to his Chapter 7 bankruptcy, he had no obligation to disclose the claim because "when a case under chapter 13 of this title is converted to a case under another chapter... property of the estate in the converted case shall consist of property of the estate, as of the date of filing of the petition, that remains in the possession of or is under the control of the debtor on the date of conversion." 11 U.S.C. § 348(f)(1)(A). Plaintiff Harris' claim accrued on March 30, 2010, according to the date of discrimination he listed on his EEOC filing (Court File No. 36-6, Harris Dep., Ex. 2). Defendant has not pointed to any statement made after that date but before the conversion to Chapter 7 that conflicts with his current position. Because Plaintiff Harris converted his estate to Chapter 7, he was not required to disclose claims that accrued after the date of his original petition. See 11 U.S.C. § 348(f)(1)(A). Plaintiff Harris therefore did not assert a contrary position and judicial estoppel is not appropriate.

2. Exhaustion of Administrative Remedies

A plaintiff suing under federal civil rights laws must exhaust his administrative remedies before bringing the suit in federal court. Filing an EEOC charge is a condition precedent to filing suit under Title VII, 42 U.S.C. § 2000e-5(e)(1). Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir. 2000). Claims not included in the charge may not be brought in a subsequently filed action. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010) (citing 42 U.S.C. § 2000e-5(f)(1)) ("As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit that were not included in his EEOC charge."). "This rule serves the dual purpose of giving the employer information concerning the conduct about which the employee complains, as well as affording the EEOC and the employer an opportunity to settle the dispute through conference, conciliation, and persuasion." Id. Courts, however, understand EEOC charges are typically filed pro se and will construe the charges liberally, entertaining "claims that are reasonably related to or grow out of the factual allegations of the EEOC charge." Id. at 362. A Title VII plaintiff can exhaust administrative remedies in one of two ways. A plaintiff can ...

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