United States District Court, E.D. Tennessee, Greeneville
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.
Elmcroft Senior Living, LLC, d/b/a Elmcroft of Kingsport, LLC
(“Elmcroft”) has filed a motion for summary
judgment as to plaintiff Melissa Bradley's claims of race
discrimination and retaliation [Doc. 21]. Having carefully
considered the pending motion, related pleadings and
materials [Docs. 21, 30, 31], the motion is now ripe for
provides assisted living services at operations throughout
the country, including an assisted living community in
Kingsport, Tennessee. On November 14, 2014, Elmcroft hired
plaintiff Melissa Bradley, an African-American female, as a
Resident Assistant at the Kingsport facility [Doc. 22-1 at p.
5]. Plaintiff received an hourly wage of $9.00 per hour,
which was the wage she requested on her employment
application [Id. at p. 6]. Resident Assistants
provide a variety of personal care to Elmcroft residents such
as helping residents with meals, dressing, bathing,
administering medication, and ambulating [Doc. 22-1 at p.
68-71]. Resident Assistants are frequently required to lift
and/or move residents and must be able to lift and/or move 25
pounds up to 100 pounds [Id.].
time of plaintiff's employment, Resident Assistants were
assigned to one of three shifts [Id. at p. 6].
Plaintiff was initially assigned to the second shift, 3:00
p.m. to 11:00 p.m., but she was later moved to the third
shift, 11:00 p.m. to 7:00 a.m. [Id. at pp. 6-7]. The
first and second shifts are staffed with approximately eight
(8) Resident Assistants, but only three (3) Resident
Assistants are assigned to the third shift when most
residents are sleeping [Id. at p. 7]. Elmcroft asserts,
and plaintiff does not dispute, that it is critically
important for each of the third shift Resident Assistants to
be able to lift or transfer residents in case of emergency
[Id. at p. 7-8].
2015, Kay Adkins, the Executive Director of Elmcroft's
Kingsport facility, met with the third shift Resident
Assistants, including plaintiff, to discuss their concerns
[Doc. 31-1 at pp. 7-8]. Ms. Adkins testified that the third
shift Resident Assistants expressed a desire for a supervisor
on their shift and plaintiff expressed an interest in that
role [Id.]. Plaintiff testified that a few weeks
after this conversation, on May 28, 2015, Ms. Adkins came in
during the third shift and told plaintiff she was going to
get the promotion to supervisor and a raise [Doc. 22-1 at p.
11]. Plaintiff claims she signed a form stating her pay would
increase to $9.75 per hour [Id.]. Plaintiff claimed
that she became the night shift supervisor, but she never
received the promised pay raise [Id. at pp. 11-12].
Elmcroft's - and Ms. Adkins' - position is that no
third shift supervisory position was created, plaintiff was
not promoted, plaintiff was not given a raise, and no
paperwork was prepared [Doc. 31-1 at p. 16]. Plaintiff claims
she did not question the fact that she did not immediately
receive the pay increase “[b]ecause I knew that it
would take time for it to go through” [Doc. 22-1 at p.
28, 2015, plaintiff injured her left knee while assisting a
resident [Doc. 22-1 at p. 13]. Plaintiff's physician
diagnosed her with a “left knee sprain” and
released her to return to work on June 29, 2015 with light
duty restrictions [Id. at pp. 13, 72]. These
restrictions remained in place until September 15, 2015
[Id. at p. 73]. Because of her light duty
restrictions, plaintiff could not perform the third shift
Resident Assistant duties, such as lifting residents, and she
was moved to the second shift [Id. at pp. 13-14,
August 16, 2015, plaintiff asked Ms. Adkins why she had never
received the promised pay raise to $9.75 per hour
[Id. at p. 13]. According to plaintiff, Ms. Adkins
responded with three reasons: “workman's comp had
kicked it out, ” plaintiff “could not perform the
job, ” and “she had an issue with me telling
somebody that I had got a raise” [Id.].
Plaintiff met with Ms. Adkins and Sarah Absher, the Resident
Services Director, the next day, August 17, 2017, to discuss
the pay increase and they advised her that they had hired
someone for her third shift position because she could not
perform the work [Id. at pp. 16, 18]. Plaintiff
admittedly made secret recordings of one or more of these
conversations with Ms. Adkins and Ms. Absher [Doc. 22-1 at p.
15]. Around August 25, 2015, someone placed a DVD containing
these recordings under Ms. Adkins' door, but plaintiff
claims she did not do it [Id. at pp. 15, 17, 46].
Sheryl Klein, Elmcroft's Regional Director of Operations
for Tennessee, contacted plaintiff to discuss the recordings
and plaintiff's concerns about her pay, but plaintiff
refused to discuss her concerns [Doc. 31-1 at ¶ 4].
August 26, 2105, plaintiff submitted an Intake Questionnaire
to the United States Equal Employment Opportunity Commission
(“EEOC”) alleging race discrimination and
retaliation [Doc. 22-1 at pp. 18, 74-76]. She submitted a
signed Charge of Discrimination on September 3, 2015,
alleging race and disability discrimination and retaliation
[Id. at pp. 24, 78].
September 13, 2015, Ms. Klein again contacted plaintiff by
phone to set up a meeting to discuss plaintiff's concerns
but plaintiff declined because she did not feel comfortable
doing so [Id. at p. 25]. Plaintiff also claims that
Ms. Klein asked if plaintiff had an attorney and she declined
to discuss that too [Id. at p. 29]. Ms. Klein states
that she called plaintiff because plaintiff “continued
to complain to other employees about that matter” and
that plaintiff refused to speak with her “upon advice
of her attorney” [Doc. 31-3 at ¶ 7].
days later, on September 15, 2015, Ms. Klein and Ms. Adkins
asked plaintiff to meet with them to discuss the issues with
her pay [Doc. 22-1 at p. 29]. Plaintiff again refused,
stating that she “just didn't feel comfortable
talking about it” [Id.]. Plaintiff also
refused to identify her attorney and at that point plaintiff
was suspended [Id. at pp. 29- 30]. According to Ms.
Klein, “she was told by her attorney not to discuss the
matter with anyone at Elmcroft” and she “was not
comfortable giving me her attorney's name” [Doc.
31-3 at ¶ 8]. Ms. Klein placed plaintiff on
administrative leave “because she had been causing
disruption among other employees and I needed additional time
to investigate the matter” [Id. at ¶ 9].
Ms. Klein told plaintiff to “have her attorney contact
me if they had any questions or wanted to discuss the
matter” [Id.]. Plaintiff purportedly
“mentioned an individual's name who she claimed
represented her, but when we looked into it the person was
not an attorney and may have been her boyfriend”
time, plaintiff did not have an attorney to identify so
“I knew I wasn't going to come back because there
was no attorney to tell” [Doc. 22-1 at p. 30]. The
following day, September 16, 2015, plaintiff resigned her
position at Elmcroft [Id.].
Standard of Review
judgment under Rule 56 of the Federal Rules of Civil
Procedure is proper “if 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 establishing that
no genuine issues of material fact exist. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986); Moore v.
Philip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993). All
facts and all inferences to be drawn therefrom must be viewed
in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Burchett v.
Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). “Once
the moving party presents evidence sufficient to support a
motion under Rule 56, the nonmoving party is not entitled to
a trial merely on the basis of allegations.” Curtis
Through Curtis v. Universal Match Corp., 778 F.Supp.
1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477
U.S. 317). To establish a genuine issue as to the existence
of a particular element, the non-moving party must point to
evidence in the record upon which a reasonable finder of fact
could find in its favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The genuine issue must
also be material; that is, it must involve facts that might
affect the outcome of the suit under the governing law.
Court's function at the point of summary judgment is
limited to determining whether sufficient evidence has been
presented to make the issue of fact a proper question for the
factfinder. Id. at 250. The Court does not weigh the
evidence or determine the truth of the matter. Id.
at 249. Nor does the Court search the record “to
establish that it is bereft of a genuine issue of material
fact.” Street v. J.C. Bradford & Co., 886
F.2d 1472, 1479- 80 (6th Cir. 1989). Thus, “the inquiry
performed is the threshold inquiry of determining whether
there is a need for a trial-whether, in other words, there
are any genuine ...