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Passmore v. Mapco Express, Inc.

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

September 24, 2017

TODD B. PASSMORE, Plaintiff,



         In this employment case, Mapco Express, Inc. and Delek U.S. Holdings, Inc. have filed a Motion for Summary Judgment (Doc. No. 25) on Todd B. Passmore's claims of age discrimination and retaliation. That Motion has been exhaustively briefed[1] by the parties. (Doc. Nos. 26, 33, 41, 45-1). For the reasons that follow, the Motion will be granted in part and denied in part.

         I. Background

         In support of their respective positions, the parties have separate statements of material fact, ostensibly in accordance with Local Rule 56.01. That Rule contemplates the filing of a “concise statement of the material facts as to which the moving party contends there is no genuine issue for trial.” L.R. 56.01(b). It also provides that “the non-movant's response may contain a concise statement of any additional fact that the non-movant contends are material and as to which the non- movant contents there exists a genuine issue to be tried.” Id. 56.01(c). The purpose of both provisions is “to assist the Court in ascertaining whether there are any material facts in dispute[.]” Id. 56.01(a).

         The parties' filings honor Local Rule 56 more in the breach than in the observance. For a single-employee employment discrimination case, the statements of fact are hardly concise. Combined, the parties offer 154 paragraphs of supposedly undisputed material facts and, when the objections are considered, their statements run 120 pages. What's worse is the parties disagree on the question of whether Mapco underwent a reduction in force, and Passmore disputes even the seemingly straight-forward question of whether Mapco was his sole employer for purposes of his claims.

         Because of the way that the facts have been presented, the Court finds it appropriate to deviate from its usual course in ruling on a Motion for Summary Judgment. Instead of attempting to set forth a complete statement of the facts at the outset (which would be unwieldy and require a number of disclaimers), the Court will set forth the most basic facts and then discuss additional material facts as they become relevant to the legal analysis.

         The basic facts, drawn from the parties' statements and responses (Doc. Nos. 35, 43) are as follows:


         Mapco operates convenience stores in several states in the southeastern United States, including Tennessee. Those stores are grouped into districts, and each district has a manager who oversees the operation of all the stores in his or her district. Mapco also groups the districts into divisions, and each division has a division manager.

         On November 6, 2009, Passmore signed an offer letter accepting employment with Mapco as a District Manager in Training (“DMIT”). Passmore began his employment with Mapco on January 4, 2010 and, at the time, was 39 years old.

         After serving as a DMIT for several months, Passmore was moved into a district manager position in March of 2010. As a district manager, he oversaw the operation of between 9 and 13 stores, with the goal to ensure that they operated at the highest possible profit level.

         In 2012, Andrew Heck became the division manager of the Nashville Division, and Passmore reported to Heck. In August of that year, Heck turned 39 years old.


         Passmore claims that, on various occasions, he complained to Heck that Heck's comments, actions, and/or directions were discriminatory against individuals and Mapco employees of middle-eastern descent. This included a complaint in January 2013 about not allowing foreign cab drivers to park in a store parking lot that was close to the airport, and not allowing Coptic Christian employees at that same store to keep the store's Christmas decorations up in January. In July 2013, Passmore also complained that Mapco's Anti-Money Laundering (“AML”) compliance program and testing targeted specific employees in his district because of their ethnicity or national origin. Passmore also claims that at some point in 2013, Heck made comments and/or took other actions that Passmore considered discriminatory against Mapco employees of Egyptian descent, including (1) asking a then-district manager to repeat a joke that Passmore's stores were “Al-Qaeda training grounds, ” (2) wanting to move a store manager due to the store manager's race and national origin, (3) paying non-Egyptian store managers more in gift cards than Egyptian store managers for covering other stores, and (4) not moving an Egyptian store manager from one store to another because Heck did not want Nolensville Road (where the store was located) run “by a bunch of Egyptians.”

         In the Nashville Division there were 11 districts identified as District 1A to District 1K. In June 2013, Mapco realigned the Nashville Division and assigned Passmore to District 1C.

         In the third quarter of 2013 and leading up to November 2013, there were only nine district managers for the eleven Nashville districts. To fill the two open district manager positions, Heck hired Jan Rakoczy and promoted Garrett Wagner, a Mapco store manager, to serve as DMITs. Although both had to undergo weeks of training before being permitted to run a district, Rakoczy signed an offer letter accepting a district manager position on August 28, 2013, and Wagner did the same on October 2, 2013.


         At this point, the parties' versions of events markedly differs. Defendants claim that, in mid-October 2013, Tony Miller, Mapco's acting president, informed Heck that Heck needed to eliminate a district manager position in the Nashville Division. This was allegedly required as a part of Mapco's move to eliminate a district manager in four divisions (Nashville, Chattanooga, Memphis, and Alabama), plus a loss prevention specialist, as part of budget cuts. Accordingly, Heck gathered financial data for the third quarter of 2013 for purposes of conducting “talent reviews” on the district managers working in his division. Under the category “performance management, ” the talent review measured “core responsibilities” and “behaviors.” To determine the “core responsibilities” portion of the review, Heck created a spreadsheet that measured the financial performance of his district managers for the third quarter of 2013.

         With the exception of EBITDA[2] for which Passmore received a score of 4 (“exceeding expectations”), Passmore received a 2 (“needs improvement”) on all of the “core responsibilities.” Concerning “behaviors, ” Heck rated Passmore a 5 (“greatly exceeds expectations”) for being “persistent” and “opportunistic, ” but rated Passmore a 1 (“below standards”) for each of the following categories: “proud/excellence, ” “trustworthy/respect, ” “accountability, ” and “customer first.”

         According to Heck, Passmore received the lowest talent review score of all of the district managers in the Nashville Division. Heck also claims that he sought input about who to fire from Steve Adcox, his Assistant Division Manager, as well as Mike Terrell, who Defendants claim was Mapco's Director of Loss Prevention but Passmore claims was DelekUS AML's Compliance Officer. Regardless, Terrell claims that Heck was wavering between terminating Passmore or another district manager, but Terrell told him to let Passmore go. This was because, while the other manager (whose name he did not recall during his deposition) was also under-performing, Heck's “shrink[3] performance was very, very poor.” (Doc. No. 25-7, Terrell Depo. at 59). Terrell also believed that the other manager was already looking for a job and would probably leave of his own volition, whereas Passmore “would probably not leave voluntarily.” (Id.).

         Heck ultimately decided to eliminate Passmore's position and terminate his employment. Defendants claim Heck discussed his decision with Miller and Jennifer Boulton, who Defendants claim was Mapco's Vice President of Organizational Development at the time, but who Passmore claims held that role as an employee of Delek. Both allegedly approved Passmore's termination.

         On November 8, 2013, Boulton informed Passmore that he was being terminated because his position was being eliminated. Passmore admits that is what he was told, but claims it was a pretext used to fire him for unlawful reasons. In this regard, Passmore asserts that (1) the talent review was not signed and dated by Heck until November 20, 2013, weeks after the termination; (2) many of the numbers Heck used actually favored retaining Passmore over any of a number of the other District Managers; (3) Passmore received bonuses and awards shortly before he was fired; and (4) the day after his termination Wagner and Rakoczy were promoted to the position of division managers and the number of division managers increased from 9 to 10.

         The parties' differences go far beyond those just recounted, but are more than enough to place their arguments in context. The issue becomes whether the differences are material and whether they require a jury trial on any one or more Passmore's claims.

         II. Summary Judgment Standard

         As this Court has noted in the past, the standard governing summary judgment has been restated on countless occasions and is well known. It suffices to note: (1) summary judgment is only 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(a); (2) the facts and inferences must be construed in favor of the nonmoving party, Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 268 (6th Cir. 2007); (3) the Court does not weigh the evidence, or judge the credibility of witnesses when ruling on the motion, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); and (4) the mere existence of a scintilla of evidence in support of the nonmoving party's position is insufficient to survive summary judgment, Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).

         III. Legal Analysis

         Passmore brings both federal and state law claims. He alleges age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. and the Tennessee Human Rights Act (“THRA”), Tenn. Code Ann. § 4-21-101, et seq.. He also alleges retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., the THRA, [4] and the Tennessee Public Protection Act (“TPPA”), Tenn. Code § 50-1-305.[5]Prior to reaching those claims, the Court must addresses whether Delek also employed Passmore, and whether Mapco underwent a reduction in force.

         A. Delek as an Employer

         Passmore argues that both Delek and Mapco were his employers. That argument fails whether considered under the single employer/integrated enterprise, joint employer, or agency theories of liability.

         “Under the ‘single employer' or ‘integrated enterprise' doctrine, two companies may be considered so interrelated that they constitute a single employer subject to liability under the ADEA and/or the ADA.” Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997). “In determining whether to treat two entities as a single employer, courts examine the following four factors: (1) interrelation of operations, i.e., common offices, common record keeping, shared bank accounts and equipment; (2) common management, common directors and boards; (3) centralized control of labor relations and personnel; and (4) common ownership and financial control.” Id. at 993-94; see N.L.R.B. v. Palmer Donavin Mfg. Co., 369 F.3d 954, 957 (6th Cir. 2004) (identifying those four factors as the “well-established criteria” for determining integrated enterprise status). Although “[n]one of these factors is conclusive, and all four need not be met in every case . . ., control over labor relations is a central concern.” Id. (citing Armbruster v. Quinn, 711 F.2d 1332, 1336-37 (6th Cir. 1983)).

         “The joint-employer and single-employer doctrines are analytically distinct.” Sanford v. Main St. Baptist Church Manor, Inc., 449 F. App'x 488, 495 (6th Cir. 2011). “The joint-employer doctrine involves a business that maintains sufficient control over some or all of the formal employees of another business as to qualify as those employees' employer; unlike in the single-employer context, the two businesses are in fact independent.” Id. at 491. The Sixth Circuit has stated that “[w]hether a joint employer relationship exists depends upon ‘such factors as the supervision of the employees' day to day activities, authority to hire or fire employees, promulgation of work rules and conditions of employment, work assignments, and issuance of operating instructions.'” N.L.R.B. v. Centra, Inc., 954 F.2d 366, 370 n.2 (6th Cir. 1992) (quoting W.W. Grainger, Inc. v. NLRB, 860 F.2d 244, 247 (7th Cir. 1988)). Similarly, the Sixth Circuit has indicated that joint employer status exists where “two or more employers exert significant control over the same employees-where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment.” Carrier Corp. v. N.L.R.B., 768 F.2d 778, 782 (6th Cir. 1985); see Elkin v. McHugh, 993 F.Supp.2d 800, 806 (M.D. ...

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