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Bland v. The Carlstar Group, LLC

United States District Court, W.D. Tennessee, Eastern Division

April 13, 2018

CHARLES R. BLAND, Plaintiff,



         Plaintiff Charles R. Bland filed this action against his former employer, The Carlstar Group, LLC (“CSG”), alleging that Defendant discriminated against him in violation of his rights under the Americans with Disabilities Act (as amended), 42 U.S.C. § 12101 et seq. (“ADA”), the Age Discrimination in Employment Act, 29 U.S.C. § 623 (“ADEA”), and the Tennessee Human Rights Act, Tenn. Code. Ann. § 4-21-101 et seq. (“THRA”).[1] (ECF No. 1.) Defendant has filed a motion for summary judgment (ECF No. 33), Plaintiff has filed a response to the motion (ECF No. 35), and Defendant has filed a reply to the response. (ECF No. 41.) Plaintiff was granted permission to file a sur-reply (ECF No. 45), and Defendant was granted permission to file a sur-sur-reply. (ECF No. 49.) For the reasons set forth below, Defendant's motion is DENIED.

         Standard of Review

         Summary 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). The Court must review all the evidence and draw all reasonable inferences in favor of the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 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). 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). 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.

         Statement of Material Facts

         Local Rule 56.1(a) requires that any motion for summary judgment be “accompanied by a separate, concise statement of the material facts as to which the moving party contends there is no genuine issue for trial.”[2] Any party opposing summary judgment must respond to each fact stated by the movant by agreeing that it is undisputed, agreeing that it is undisputed for purposes of ruling on the summary judgment motion only, or by demonstrating that the fact is disputed, with specific citations to the record.[3] “Failure to respond to a moving party's statement of material facts ... shall indicate that the asserted facts are not disputed for purposes of summary judgment.” LR 56.1(d). Rule 56(e) of the Federal Rules of Civil Procedure also provides that if a party “fails to properly address another party's assertion of fact ... the court may consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e)(2).

         The purpose of a statement of facts is “to assist the Court in ascertaining whether there are any material facts in dispute.” Local R. 56.1(a). A fact is material if the fact “might affect the outcome of the lawsuit under the governing substantive law.” Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015) (citing Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994), and Anderson, 477 U.S. at 247-48). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. For purposes of summary judgment, a party asserting that a material fact is not genuinely in dispute must cite particular parts of the record and show that the fact fails to establish a genuine dispute or that the adverse party has failed to produce admissible evidence to support the purported fact. Fed.R.Civ.P. 56(c)(1).

         As the non-moving party, Plaintiff was required to respond to Defendant's statements of fact “by either (1) agreeing that the fact is undisputed; (2) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (3) demonstrating that the fact is disputed.” Local R. 56.1(b). Additionally, Plaintiff may “object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). When a plaintiff asserts that a genuine dispute of material fact exists, he must support his contention with a “specific citation to the record.” Local R. 56.1(b).

         If Plaintiff fails to demonstrate that a fact is disputed or fails to address Defendant's statement of facts properly or if Defendant fails to address Plaintiff's statement of additional facts properly, the Court will “consider the fact undisputed for purposes” of ruling on the motion. Fed.R.Civ.P. 56(e)(2); see also Local R. 56.1(d) (“Failure to respond to a moving party's statement of material facts, or a non-moving party's statement of additional facts, within the time periods provided by these rules shall indicate that the asserted facts are not disputed for purposes of summary judgment.”).

         Both parties have complained about the opposing party's response to the other party's statement of facts, and the Court finds the complaints to be meritorious. Defendant argues that Plaintiff has “present[ed] detailed argument well beyond merely showing a disputed issue of fact, ” (Def's Reply p. 1, ECF No. 41), and Plaintiff contends that Defendant “violated” Local Rules 56.1(b) and 56.1(c) by not properly responding to his statement of additional facts. (Pl's Sur-Reply p. 1, ECF No. 45.) Neither party seems to understand the correct way to respond to a statement of facts despite the explicit instructions in Rule 56.1. A response to an opponent's statement of fact is not the place for additional facts or for argument. See Boyd v. Reed Landscaping, Inc., 2016 WL 5404765 at *1 (M.D. Tenn. Apr. 26, 2016), rep. & rec. adopted in part, rejected in part, 2016 WL 5404642 (M.D. Tenn. Sept. 27, 2016) (“The parties' concise statement of facts has been of little assistance to the Court since the statements themselves are for the most part not concise statements of facts, but rather, compound statements including statements of judgment, opinion, and legal argument. The responses for the most part have been lengthy arguments and objections. At times, rather than simply saying ‘denied' with a citation to the record, the responding party has gone on for several paragraphs, making a legal argument. None of this helps the Court determine what facts are in dispute and which are not.”)

         Defendant is correct that Plaintiff's response to its statement of facts (ECF No. 35-1) is replete with improper argument. As this Court stated in a previous case, “Argument in responses to statements of material facts clouds issues.” Maverick Grp. Mktg., Inc. v. Worx Envtl. Products, Inc., 99 F.Supp.3d 822, 827 (W.D. Tenn. 2015). However, despite Plaintiff's “clouding of the issues” by inserting argument and unsupported inferences in his response to Defendant's statement of facts, the Court is able to discern factually based disputes and whether those disputed are material and will make its decision accordingly. To the extent that Plaintiff has presented any facts in his response that are not material or relevant to the issues presented by Defendant's motion, the Court will disregard those facts except as necessary to provide context or background. C.f. Hillman v. Shelby Cty., 2012 WL 681778 at *1 (W.D. Tenn. Feb. 29, 2012) (“[C]ourts in the Western District of Tennessee do not strike inadmissible portions of affidavits; instead, they disregard the inadmissible testimony in their evaluation of the summary judgment motion before them.”) The Court will do likewise with Defendant's responses to Plaintiff's statement of additional facts since Defendant also has failed to comply with the requirements of Local Rule 56.1 by including argument and extraneous material in its responses.

         The Court finds that, for purposes of deciding this motion only, there is no genuine dispute as to the following material facts, unless otherwise noted.

         Prior to February 4, 2016, Plaintiff was a fifty-five year-old maintenance technician working for CSG. Plaintiff worked for CSG for almost six years without any write-ups or reprimands in his personnel file.

         During the relevant time period, Plaintiff worked for Defendant CSG as a maintenance technician at CSG's Jackson plant. As a maintenance technician, Plaintiff repaired machines.[4]

         Plaintiff has peripheral artery disease which caused him some difficulty walking.[5]Plaintiff was on FMLA leave from early September 2015 until approximately October 19, 2015.

         When Plaintiff called the Human Resources office in October 2015 and reported that his surgeon had released him to come back to work and that he was ready to return to work, he was told, “We'll call you and let you know when to come back.” On the day Plaintiff would have been terminated had he not returned to work after his FMLA leave, he returned, even though CSG had not called him and told him he could return, and CSG's time card machine would not accept his time card anymore. After receiving Plaintiff's clearance to come back to work, Shea Harris in Human Resources emailed the doctor's office to double check Plaintiff's medical record. The day after Plaintiff returned to work, Harris asked Plaintiff, “Didn't I tell you that we would call you and let you know when to come back to work?” CSG had not been requiring fit for duty physicals prior to requiring one for Plaintiff's return to work in October 2015.[6]

         Soon after Plaintiff had returned from his FMLA leave, Matthew White, the first shift team lead maintenance supervisor, said to him, “Well, Chuck, I figured you'd probably think about disability or something. I didn't think you'd probably show back up out here.”[7]

         It was the perception of some of Defendant's employees and management that Plaintiff was having trouble walking around the plant after he returned from his surgery in the fall of 2015. Human Relations Manager Jeff Gaston assumed that it would take Plaintiff longer to respond to maintenance calls because it appeared to Gaston that Plaintiff was having trouble walking through the plant after his surgery while Matthew White had no knowledge of Plaintiff's taking longer to respond to maintenance calls. Plaintiff's health did not impact his ability to perform his job after his return from surgery in October 2015.[8]

         Not long after Plaintiff returned from his FMLA leave, Ronnie Owens, the engineering services manager at CSG, offered him the option to switch from his maintenance technician position to a mold technician position because Owens believed the mold technician position did not require as much walking. The mold technician position paid approximately $5.00 less than Plaintiff's maintenance technician position. Owens's offer to allow Plaintiff to switch positions was voluntary. During this conversation, Owens talked to Plaintiff about his age, the condition of his health, and his inability to get another job at his age and with his health condition.[9]

         After considering Owens's offer for several days, Plaintiff declined the offer. The primary reason that he declined Owens's offer was that he “couldn't afford to take the five dollar an hour pay cut.” If the pay had been the same, Plaintiff probably would have taken the mold technician position.

         CSG has a lock-out/tag-out (“LOTO”) policy.[10] Under CSG's policy, a machine must be locked-out/tagged-out before an employee performs work on the machine if the employee would be exposed to a risk or danger when working on the energized machine.[11] Locking out a machine de-energizes the machine's energy source and prevents an unexpected start-up or cycling while the employee making the repair is in direct contact with the machine.[12]

         On February 4, 2016, Plaintiff was sent to press 72 because the tire mold was not closing completely, causing tires to not be molded correctly. The mold was un-level and needed to be leveled. Plaintiff used a two to two-and-a-half-foot pipe wrench to adjust the joy nut that was attached to the shaft of the gearbox, which in turn adjusted the platen height of the mold. Plaintiff did not have press 72 locked-out.[13] Plaintiff called his supervisor, Matthew White, and asked for help.

         After ascending on the scissor lift with Plaintiff, White walked over onto the platform of press 72, where Plaintiff had previously been standing, and Plaintiff stayed on the scissor lift.

         While at press 72, White learned that Plaintiff had not locked-out/tagged-out press 72.[14]White attempted the same adjustment that Plaintiff had attempted, and White did so without being locked-out/tagged-out.[15]

         Corey McLemore, then acting maintenance supervisor and White's immediate supervisor, and Owens were notified that Plaintiff had not locked-out/tagged-out press 72. Owens immediately notified Jeff Gaston of the incident.

         At Owens's request, White, McLemore, and Plaintiff each provided a written statement about what happened.[16]

         Because he is not an expert on the LOTO Policy, Gaston relied upon Plaintiff's supervisors, White, McLemore, and Owens, to determine if Plaintiff violated CSG's LOTO Policy.

         Training records showed that Plaintiff had attended (1) a September 2013 LOTO training specifically for maintenance technicians and (2) a plant-wide January 2014 LOTO training. The training records also indicated that Plaintiff participated in a periodic inspection audit on the LOTO Policy on July 24, 2014. At the July 24, 2014, audit, McLemore went over the appropriate LOTO procedure and demonstrated the procedure on press 73, which is identical to press 72. At the July 24, 2014, audit, Plaintiff understood McLemore and did not have any questions.

         The training documents that CSG relied on to terminate Plaintiff contained exceptions to the LOTO policy, but the decision makers did not consider the exceptions before terminating him.[17] The person who trained Plaintiff as to how to perform an adjustment on machines like press 72 instructed Plaintiff to do adjustments without locking-out/tagging-out.

         Had CSG investigated the incident, it would have learned that (1) Plaintiff was trained to make adjustments without locking-out/tagging-out according to a policy exception that applied when the coupling was not removed and (2) White made the same adjustments as Plaintiff had made.[18] Although CSG was on notice that White performed the same adjustment on press 72 that Plaintiff had performed and neither man was locked-out/tagged-out, CSG did not investigate White's actions like it did Plaintiff's actions. White was not disciplined nor terminated for a LOTO violation concerning this incident.

         Although Plaintiff believed that the exception applied to the adjustment he made on press 72, after he was called to the office, he assured CSG that he would lock-out/tag-out that press in the future when he was performing adjustments.

         Gaston informed Plaintiff of his termination on February 5, 2016. CSG did not follow its graduated discipline policy when it terminated Plaintiff.

         In defense of Plaintiff's termination, CSG claimed that it had to terminate Plaintiff because its LOTO policy was a zero tolerance policy.[19] The LOTO policy is actually not a zero tolerance policy. The LOTO policy applies equally to every employee no matter what position is held by that employee.

         CSG has not terminated other employees who were written up for violations of the LOTO policy. Larry Ballard was just given a warning for his LOTO violation; David Bucks was terminated, not for his LOTO violation, but because he had been warned before and continued violating the LOTO policy; Brent Jones received a warning for his first LOTO violation and was not terminated until after his second violation; and David Bucks' subordinates were not terminated for their LOTO violations.[20]

         CSG replaced Plaintiff with Cameron Laws who is in his early to mid-twenties, was not known to be disabled, and had numerous write-ups in his personnel file. Matthew White was in his thirties as ...

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