United States District Court, M.D. Tennessee, Nashville Division
DARTANION A. MCGEE Plaintiff
FOOD WARMING EQUIPMENT, INC., et al. Defendants
WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE.
before the Court is Defendants' Motion for Summary
Judgment (Doc. No. 38). For the reasons stated herein,
Defendants' Motion is GRANTED in part and DENIED in part.
A. McGee, a former employee of Food Warming Equipment, Inc.
(“FWE”), brought this action against FWE and four
of its employees for employment discrimination in violation
of 42 U.S.C. §2000e, et seq. (“Title
VII”); 42 U.S.C. § 1981 (“Section 1981); and
Tenn. Code Ann. § 4-21-311, et seq.
alleges that FWE discriminated against Plaintiff because of
his race, resulting in a constructive discharge from his
employment. Plaintiff also alleges claims against FWE for
retaliation and a racially hostile work environment. The
Complaint (Doc. No. 1) alleges state law claims against the
individual Defendants for aiding and abetting under the THRA
and intentional infliction of emotional distress, but
Plaintiff has abandoned those claims against the individual
Defendants (Doc. No. 48, p.2). Therefore, all claims against
the individual Defendants (Gates, Pilkington, Coddington and
Ohlson) are DISMISSED with prejudice.
judgment is appropriate where there is no genuine issue as to
any material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c); Pennington v. State
Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th
Cir. 2009). The party bringing the summary judgment motion
has the initial burden of informing the Court of the basis
for its motion and identifying portions of the record that
demonstrate the absence of a genuine dispute over material
facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.
2003). The moving party may satisfy this burden by presenting
affirmative evidence that negates an element of the
non-moving party's claim or by demonstrating an absence
of evidence to support the nonmoving party's case.
deciding a motion for summary judgment, the Court must review
all the evidence, facts and inferences in the light most
favorable to the nonmoving party. Van Gorder v. Grand
Trunk Western Railroad, Inc., 509 F.3d 265, 268 (6th
Cir. 2007). The Court does not, however, weigh the evidence,
judge the credibility of witnesses, or determine the truth of
the matter. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). The Court determines whether sufficient
evidence has been presented to make the issue of fact a
proper jury question. Id. The mere existence of a
scintilla of evidence in support of the nonmoving party's
position will be insufficient to survive summary judgment;
rather, there must be evidence on which the jury could
reasonably find for the nonmoving party. Rodgers,
344 F.3d at 595.
alleges that FWE discriminated against him because of his
by failing to promote him and by failing to grant him raises
as frequently and as high as those of Caucasian employees.
Plaintiff may establish his race discrimination claims by
presenting either direct or circumstantial evidence.
Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433
(6th Cir. 2002). Direct Evidence.
evidence is evidence that, if believed, requires the
conclusion that unlawful discrimination was at least a
motivating factor in the employer's actions. DiCarlo
v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)
(overruled on other grounds by Gross v. FBL Financial
Servs., Inc., 557 U.S. 167 (2009)). To survive
summary judgment through the assertion of direct evidence,
the plaintiff must raise a disputed issue of fact as to
whether the employer was predisposed to discriminate on the
basis of race and as to whether the employer acted on that
predisposition. Fite v. Comtide Nashville, LLC, 686
F.Supp.2d 735, 750-51 (M.D. Tenn. 2010).
Plaintiff contends that his supervisors and managers made
offensive, racially-derogatory statements to Plaintiff on a
daily basis. For example, Plaintiff asserts that Coddington
told Plaintiff that, for Black History Month, he hires
African-Americans and then fires them for Christmas. For
example, Plaintiff claims that Pilkington repeatedly made
offensive race-related statements in the workplace and
repeatedly used “the N word” in stories and jokes
on a regular basis. For example, Plaintiff alleges that
Ohlson stated to Plaintiff that “white people are here,
” with his hand by his head, and “black people
are here, ” with his hand near his groin area.
Plaintiff alleges a pattern of many other offensive,
racially-derogatory statements by supervisors. See,
e.g., Doc. No. 54, ¶¶ 2-10, 13-15, 17-21, 26
and 28-32. This evidence, combined with all the other
allegations in the Complaint related to racial animus and
insensitivity, is sufficient to raise fact issues as to
whether Plaintiff's supervisors were predisposed to
discriminate on the basis of race.
next question, whether Plaintiff's supervisors acted on
their predispositions in denying Plaintiff promotions or
failing to give him equal raises also involves issues of
material fact. For example, Plaintiff claims he repeatedly
expressed his interest in advancing at FWE to his
supervisors. Defendant FWE denies that claim. Plaintiff
argues that Defendant promoted only non-African Americans,
including employees Wells, Vanderlee and Demaree, with less
seniority and experience than Plaintiff. Defendant denies
that any promotion decisions were made because of an
employee's race. Plaintiff asserts that he was denied two
positions in favor of Wells, a Caucasian, because Defendant
did not allow Plaintiff to apply, which Defendant denies.
Doc. No. 54, ¶¶ 37, 40 and 41.
contends that it denied Plaintiff these promotions because he
refused to work overtime or on second shift. Plaintiff denies
that he was ever unwilling to work overtime, on Saturdays, or
on second shift. Doc. No. 54, ¶¶ 46-49. Plaintiff
alleges that he did not receive pay raises with the same
frequency or in the same amounts as non-African-American
co-workers, and Defendant denies that fact. Doc. No. 54,
¶¶ 54-57. Plaintiff argues that the supervisors who