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Smith v. Federal Express Corp.

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

February 15, 2019

TINO SMITH, SR., Plaintiff,
v.
FEDERAL EXPRESS CORPORATION, Defendant.

          REPORT AND RECOMMENDATION

          CHARMIANE G. CLAXTON, UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant Federal Express Corporation's Motion for Summary Judgment (DE. # 18). This case has been referred to the undersigned United States magistrate judge for management and for all pretrial matters for determination and/or report and recommendation as appropriate pursuant to Administrative Order 2013-05[1].

         I. Jurisdiction

         The instant case was removed to the United States District Court pursuant to 28 U.S.C. §§ 1441(a) and 1446 from the Circuit Court of Shelby County, Tennessee. The court has jurisdiction over Plaintiffs Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Genetic Information Nondiscrimination Act of 2008 (“GINA”) claims pursuant to 28 U.S.C. § 1331.

         II. Procedural history

         Plaintiff filed his complaint in the Circuit Court of Shelby County, Tennessee on December 19, 2017 alleging retaliation by Defendant in violation of Title VII and GINA. (D.E. # 1-1, PageID 5-6). Defendant removed Plaintiff's complaint on February 2, 2018. (D.E. # 1). Defendant filed its motion for summary judgment on November 9, 2018. (D.E. # 18). Plaintiff filed his response on November 26, 2018. (D.E. # 19)

         III. Summary judgment standard

         Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material act and [that] the movant is entitled to judgment as a matter of law.” The party bringing the summary judgment motion bears the initial burden of establishing the nonexistence of any issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden may only be satisfied by “citing to particular parts of materials in the record...” or “showing that the materials cited do not establish the absence or presence of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). “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.' ” Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.2003) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548).

         When the moving party has made the required showing, the nonmoving party must set forth specific facts showing that there is a genuine dispute for trial. See Fed.R.Civ.P. 56(c). A genuine dispute exists if a reasonable jury could review the evidence and return a verdict for the nonmoving party. Wasek v. Arrow Energy Servs., 682 F.3d 463, 467 (6th Cir.2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Phelps v. State Farm Mut. Auto. Ins. Co., 680 F.3d 725, 735 (6th Cir.2012) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Reliance on the pleadings is insufficient. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Instead, the nonmoving party “must adduce concrete evidence on which a reasonable juror could return a verdict in [its] favor.” Stalbosky v. Belew, 205 F.3d 890, 895 (6th Cir.2000) (citations omitted); see Fed.R.Civ.P. 56(c)(1). The court does not have the duty to search the record for such evidence. See Fed.R.Civ.P. 56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989).

         The Local Rules of the United States District Court for the Western District of Tennessee require the non-moving party to respond to each fact set forth by the movant by either “agreeing that the fact is undisputed”, “agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only”, or “demonstrating that the fact is disputed.' LR 56.1(a) If the non-movant contends that there are additional facts that are material, each such disputed fact shall be set forth in a separate, numbered paragraph with specific citations to the record supporting the contention that such fact in in dispute. LR 56.1(b) 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)

         IV. Proposed findings of fact[2]

         Plaintiff began his employment with FedEx on September 28, 2009 as a permanent, part-time handler with FedEx's Indianapolis, Indiana Hub Operations. (Declaration of Myron Donald (“Donald Decl.”) ¶ 6; Pl.'s Dep. at 50:9-11 & Exh. 5). Plaintiff received copies of FedEx's Employee Handbook and People Manual, which include the company's policies on discrimination, harassment, and retaliation as well as FedEx's internal complaint procedures. (Pl.'s Dep. at 54:6-21, 55:15-56:1 & Exh. 6). FedEx's Anti-Harassment Policy condemns any acts in FedEx's work environments that create the potential for illegal harassment, both in terms of individual employee morale and in violation of applicable federal, state, and local laws. (Pl.'s Dep. at Exh. 15).

         On March 23, 2016, Plaintiff filed a Complaint of Discrimination against “Federal Express” with the Indiana Civil Rights Commission (“Indianapolis Charge”), which alleged that FedEx discriminated against him and retaliated against him by failing to hire him for various management positions in Indianapolis. (Pl.'s Dep., Exh. 16).

         Plaintiff later attained the position of Senior Manager, at which time he transferred to Memphis, Tennessee. (Pl.'s Dep. 50:14-24). At the FedEx World Hub (the “Hub”) in Memphis, Tennessee, Brandon McAlpine (“McAlpine”) held the position of Security Specialist III and was assigned to investigate complaints of harassment, workplace violence, theft, and security threats. (McAlpine Decl. ¶¶ 3-4). FedEx Employees who come in contact with ...


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