United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND DENYING JOINT MOTION TO CONTINUE AS
THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.
Richard Davis filed this action against his former employer
Kohler Co., alleging racial discrimination and retaliation in
violation of the Civil Rights Act of 1866, 42 U.S.C. §
1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq., and the Tennessee Human
Rights Act, as codified at Tenn. Code Ann. § 4-21-101
et seq. (“THRA”). Defendant has filed a
motion for summary judgment. (ECF No. 34.) Plaintiff has
filed a response (ECF No. 38), and Defendant has filed a
reply to the response. (ECF No. 40.) Defendant's motion
is GRANTED. The joint motion to continue the
trial of this matter (ECF No. 45) is DENIED
judgment is proper “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.”
Fed.R.Civ.P. 56(c). When deciding a motion for summary
judgment, the court must review all the evidence and draw all
reasonable inferences in favor of the nonmovant.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). In reviewing a motion for summary
judgment, the court views the evidence in the light most
favorable to the nonmoving party, and it “may not make
credibility determinations or weigh the evidence.”
Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th
Cir. 2014). When the motion is supported by documentary proof
such as depositions and affidavits, the nonmoving party may
not rest on his pleadings but, rather, must present some
“specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Eastham v. Chesapeake Appalachia,
L.L.C., 754 F.3d 356, 360 (6th Cir. 2014). These facts
must be more than a scintilla of evidence and must meet the
standard of whether a reasonable juror could find by a
preponderance of the evidence that the nonmoving party is
entitled to a verdict in his favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986).
determining if summary judgment is appropriate, the court
should ask “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.” Id. at 251-52. The court must enter
summary judgment “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.
Objections to Defendant's Statement of Facts
initial matter, Plaintiff objects to any reliance by
Defendant on the witness statements or “Incident
Reports” of Michelle Griffin, Brian Sorrell, Terry
Hollingsworth, Kevin Hubble, Jeremy Alfter, and Brian Johnson
and the interview notes of Jeff Bennett, Defendant's
Human Resources Manager at the time of the relevant events,
to prove that Plaintiff caused the incident that led to the
termination of his employment. According to Plaintiff, the
unsworn statements of these witnesses and Bennett's
interview notes contain inadmissible hearsay and, thus, do
not set out facts that would be admissible in evidence as
required by Fed.R.Civ.P. 56(c)(4). Plaintiff also contends
that the statements are unreliable because they do not show
that the witnesses actually saw the events leading up to the
incident in question.
Rule of Civil Procedure 56(c)(4) requires an affidavit to be
based on personal knowledge:
An 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); see Mitchell v. Toledo
Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992) (district
court properly disregarded affidavit submitted in opposition
to summary judgment that was not based on personal knowledge
and that did not set forth facts that would be admissible
into evidence). Accordingly, a Rule 56 affidavit must fairly
present evidence that would be admissible at trial, and it is
the burden of the party submitting the affidavits to
demonstrate that the witness has personal knowledge of the
statements contained therein. See Long v. Procter
& Gamble Mfg. Co., 2005 WL 1631033 *1 (W.D.
Tenn. July 8, 2005) (“Rule 56(e) requires that
“[s]upporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated
therein. These three requirements are mandatory.”
(citations omitted)). The court cannot rely on inadmissible
hearsay as a basis for a summary judgment decision. See
Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir.
2009) (“Hearsay evidence ... must be
has responded that the witness statements and investigative
report are not inadmissible hearsay because the statements
are not offered for the truth of the matter asserted but,
instead, as evidence of Defendant's good faith belief
that Plaintiff was terminated for a legitimate,
non-discriminatory reason. See Rhodes v. Standard Parking
Corp., 599 F. App'x 500, 506 (6th Cir. 2014)
(discussing that a “statement that is not offered to
prove the truth of the matter asserted but offered to show
its effect on the listener is not hearsay.”) The Court
agrees with Defendant's position and will consider the
statements objected to by Plaintiff only in determining the
effect those statements had on Defendant when making the
decision to terminate Plaintiff. That is, do the objected to
statements show that Defendant had a good faith basis to
of Material Facts
parties have agreed that the following facts are undisputed
for the purpose of deciding this motion only, except as
noted. (Def's St'ment of Mat. Fcts
(“SOF”), ECF No. 34-2; Pl's Add. St'ment
of Mat. Fcts (“ASOF”), ECF No. 38-1; Def's
Rep. to Pl's Add. St'ment of Mat. Fcts
(“RASOF”), ECF No. 40-1.)
manufactures shower doors and other bathroom accessories at
its Union City, Tennessee, manufacturing plant. Kohler has
written policies prohibiting race discrimination.
has a progressive discipline policy involving several steps,
from “Notification” to “Level I” to
Level II” to “Level III with Suspension” to
“Termination.” Discipline progresses along
different paths for attendance and performance/misconduct.
Disciplinary actions roll off after a period of twelve
months, but only if no other discipline has been issued in
the interim. Kohler may skip steps of discipline based on the
nature, severity, and circumstances of the infraction but may
not do so in a discriminatory manner.
addition to the progressive discipline policy, employee
associates may be suspended pending investigation of an
incident if this is done in a non-discriminatory manner. Such
a suspension remains in effect until Kohler completes its
investigation and decides whether to take disciplinary
term “PIV” refers to powered industrial vehicles
like forklifts. A Kohler associate is required to have a PIV
license and to undergo PIV training before being permitted to
drive a PIV.
are required to immediately report any accident, including a
PIV incident, to management. When an associate is involved in
a PIV incident involving property damage, injury, or both,
the associate involved in the incident is sent for a drug
test, any associate injured is sent for medical treatment,
and an investigation is conducted.
the supervisor of the associate alleged to have caused the
incident investigates the matter, at times with the
assistance of Safety Specialist Brian Hays. Once the
investigation is complete, the matter is brought to the
attention of higher levels of management. Human Resources
(“HR”) may be involved in a PIV investigation if
there is an injury.
general practice, if the investigation concludes that the
associate followed appropriate guidelines but the incident
happened anyway, the associate typically will not be
disciplined. If the investigation concludes that the
associate did not follow the appropriate guidelines and/or
did something (or failed to do something) that caused the
accident, the associate will be disciplined.
someone in HR usually signs off on written discipline, HR
does not get involved in PIV investigations unless someone is
injured during the accident or management seeks HR advice.
operating a PIV with a load that obstructs the driver's
view, the driver is required to operate the vehicle backwards
at a slow speed.
hired Plaintiff, an African American male, on April 22, 2002,
as a builder/packer. Beginning in 2008 or 2009 through March
11, 2015, Plaintiff wore his hair in long braids
(“dreads” or “dreadlocks”) as a
symbol of and in honor of his African-American heritage and
November 2009, Plaintiff was moved to the Kohler Operating
System Facilitator position (“KOS Facilitator”).
Senior Project Analyst Buddy Thompson placed Plaintiff in the
KOS Facilitator position. As KOS Facilitator, Plaintiff reported
to Thompson; beginning in 2010 or 2011, he reported to Brian
Halford; and, at times, he also reported to the Plant Manager
2013, Plaintiff was moved to the Team Leader 3 position. As a
Team Leader, Plaintiff was responsible for leading and
motivating a crew of associates to meet production goals
while working safely and efficiently. Plaintiff was in a
leadership position and viewed himself that way. In the Team
Leader position, Plaintiff reported to George Rogers, who
reported to Brian Halford. In his resume, Plaintiff
identified and described the job duties of the KOS
Facilitator and the Team Leader 3 as being the same.
October 28, 2013, Kohler issued a “notification”
write-up to Plaintiff for an incident in which Plaintiff was
operating a PIV in a manner that resulted in property damage
- broken glass. Plaintiff contends that he should not have
received this write-up because the incident was due to a
pothole in the floor. The written statement Plaintiff
provided to Kohler in connection with this incident does not
reference a pothole although Plaintiff testified in his
deposition that there was a pothole. George Rogers and Joe
Chapman signed the notification write-up. Jeff Bennett was
not involved in the decision to give Plaintiff this write-up.
September 19, 2014, Kohler issued a Level I write-up to
Plaintiff in connection with an incident in which he was
observed, on videotape, walking under a suspended load of
materials, which was a safety violation. Plaintiff admits
that he should have received the Level 1 write-up. The Level
1 write-up was signed by George Rogers and Randy Workman.
Jeff Bennett was not involved in the decision to give
Plaintiff this write-up.
about October 8, 2014, Plaintiff was involved in another PIV
incident which involved broken glass. Plaintiff did not
receive any disciplinary action related to this incident
because the investigation revealed that it was caused by a
process failure and was not Plaintiff's fault.
March 11, 2015, there was another PIV incident in which Terry
Hollingsworth, a Caucasian, reported to Barry Farley that,
while he was on a pallet jack stopped in the aisle, Plaintiff
was driving a forklift and hit the pallet jack from behind.
Hollingsworth reported that the collision knocked him off the
pallet jack and injured him. Hollingsworth's injury
required first aid treatment but was not OSHA recordable.
to Plaintiff, he was operating a forklift to move a load of
cartons when he felt a bump, which he assumed was the cargo
shifting. Plaintiff maintains that his forklift was
stationary and not moving when he felt the bump, although he
was letting his forklift straight down vertically. According
to Plaintiff, he did not report this incident to anyone at
Kohler because he did not know that he had hit anyone.
forty-five minutes to one hour after the incident, Rogers and
Brian Hays advised Plaintiff that Hollingsworth had reported
that Plaintiff had hit him. They told Plaintiff that he
needed to be drug tested. Plaintiff claims that he had no
knowledge that he was involved in a PIV incident until this
conducted an investigation into the incident. Initially, the
investigation was conducted by Rogers and Hays. On March 11,
2015, Rogers obtained a written statement from Plaintiff
regarding the incident in which Plaintiff stated:
I was dropping cartons off to cell in designated area lower
forks while still under load I felt a bump. When I looked up
I saw Terry H. with a load of tubs drive off. I pulled out
from under the load while Corey S. pushed cartons into place.
March 11, 2015, Rogers and Hays obtained written statements
from Hollingsworth and other associates Brian Sorrell, Kevin
Hubble, Brian Johnson, Jeremy Alfter, and Michelle Griffin.
Later, Bennett conducted interviews with Plaintiff,
Hollingsworth, Sorrell, and Griffin.
his interview with Bennett, Sorrell reported that
“Richard had a big load on his forks. There was no way
Richard could see.” Sorrell's written statement
identified the parties to the incident as “Forklift
Driver A” and “Forklift Driver B, ” without
mentioning the names of Plaintiff or Hollingsworth. Although
Sorrell's written statement does not name the drivers,
during Bennett's interview of Sorrell, Sorrell named
Plaintiff and Hollingsworth as the drivers.
reported that she saw Plaintiff “on forklift with load
of boxes driving forward (could not see over
load).” She also reported that she saw him looking
to the side of his load. She saw that Plaintiff “was
going to run into Terry's load, ” and she
“hollered, ” but “it was too late.”
She saw Hollingsworth “stumble” and then put his
arm on his back.
and Alfter reported that they did not see the collision but
observed the immediate aftermath, including Hollingsworth
yelling and/or grabbing his back. Johnson reported that he
did not see the impact but heard the noise.
report identified two direct causes of the incident -
congestion in the area and Plaintiff's driving forward
with an obstructed view.
March 11, 2015, Rogers presented Plaintiff with a write-up
reflecting that he was being suspended pending investigation
in connection with the alleged PIV incident. Plaintiff
refused to sign the document because he stated that he did
not know exactly what had happened.
March 12, 2015, Bennett interviewed Plaintiff concerning the
incident and obtained a written statement. Randy Workman was
present for part of the interview. During the interview,
Plaintiff told Bennett, inter alia:
• He felt a bump. He didn't know if he was hit by
• Terry had a load of tubs on his lift. Didn't think
anything about it.
• Backed out and no one was in the ...