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Towns v. Tennessee Department of Agriculture

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

February 21, 2019

ROY A. TOWNS, Plaintiff,
v.
TENNESSEE DEPARTMENT OF AGRICULTURE, Defendant.

          REPORT AND RECOMMENDATION

          TU M. PHAM, UNITED STATES MAGISTRATE JUDGE

         Before the court[1] is defendant Tennessee Department of Agriculture's (“TDA”) Motion for Summary Judgment, filed on December 14, 2018. (ECF Nos. 42; 43.) Pro se plaintiff Roy Towns responded on January 10, 2019. (ECF No. 47.) For the following reasons, the undersigned recommends that TDA's motion be granted.

         I. PROPOSED FINDINGS OF FACT

         This is a sex discrimination and retaliation case brought against TDA under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (ECF No. 9 at 1.) Since May 5, 2005, Towns has been employed by Shelby County Health Department (“Shelby County”) as an environmentalist. (ECF No. 9 at 3.) Towns is not, nor has he ever been, a direct employee of TDA.

         Under Tennessee law, TDA is responsible for ensuring “that foods offered for public consumption in Tennessee are safe as prepared, processed, served, packaged, and delivered.” Tenn. Code Ann. § 53-8-202. To accomplish this goal, TDA is permitted to “[e]nter into agreements or contracts with the Shelby, Davidson, and Knox county health departments” and is authorized to “exercise oversight and evaluation of performance of the county health department or departments and terminate the agreement or contract for cause immediately, or otherwise upon reasonable notice.” Tenn. Code Ann. § 53-8-204(7)(c). TDA and Shelby County have entered into a contract, which sets forth their relationship as follows:

The parties hereto, In the performance of this Contract, shall not act as employees, partners, joint ventures, or associates of one another. It is expressly acknowledged by the parties hereto that such parties are Independent contracting entities and that nothing in this Contract shall be construed to create a[n] employer/employee relationship or to allow either to exercise control or direction over the manner or method by which the other transacts its business affairs or provides its usual services. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever.

(ECF No. 43-1 at 10 ¶ D.13.)

         Under the contract, Shelby County is required to “conduct regular inspection of every food establishment . . . that has a physical address within Shelby County.” (Id. at 3 ¶ A.2.a.) These inspections must be completed in accordance with Tennessee law, the rules and regulations promulgated under those laws, and “any directives of [TDA], including the use of inspection methods, documents, reports, or other material to perform or document the inspections.” (Id. at 3 ¶ A.2.c.) Shelby County is responsible for training its employees regarding how to inspect the food establishments; however, the training must be conducted in accordance with a training curriculum that TDA provides.[2] (Id. at 3 ¶ A.2.e.) Additionally, TDA directs Shelby County “on practices for training its personnel inspectors . . . [and] provide[s] training aids and materials, as available, for [Shelby County's] training of its personnel inspectors.” (Id. at 6 ¶ A.5.d. (1).) To ensure Shelby County's inspectors are being properly trained, TDA monitors Shelby County's training of these inspectors. (Id. at 6 ¶ A.5.d. (2).) TDA “shall provide annual instruction to [Shelby County's] personnel inspectors regarding refresher training and changes or complements to any applicable program laws, rules, policies, or procedures.” (Id. at 6 ¶ A.5.d. (3).)

         The contract also gives TDA the ability to annually audit, on a pass/fail basis, “up to ten percent (10%) of [Shelby County's] inspection personnel for effective implementation of state program standards.” (Id. at 5 ¶ A.5.a. (3).) If an inspector fails the audit, TDA will inform the inspector why he or she failed and may conduct a follow-up audit within ninety days. (Id.) In addition, the inspector who failed the audit is prohibited from conducting inspections until he or she passes the follow-up audit or until TDA “otherwise approves the inspector for Inspections based on [Shelby County's] communicated efforts to improve the inspector's performance and its confidence that the inspector may perform inspection under th[e] Contract to a satisfactory level.” Id.

         On October 13, 2015, TDA audited Towns and a fellow inspector, Lillie Roberts. (ECF No. 9 at 7.) Subsequently, on October 27, 2015, Towns received an email containing his and Roberts's individual audit results. (ECF Nos. 9 at 7; ECF No. 9-3 at 19; ECF No. 9-5 at 3, 5.) While Roberts was praised for her performance during the audit, Towns failed the audit. TDA requested an action plan from Shelby County describing the remedial training that it would provide to Towns. (ECF No. 9-3 at 19; ECF No. 9-5 at 3.) Towns claims that these audit results were inconsistent with his and Roberts's prior job performances, arguing that he had an “exemplary” track record while Roberts was the cause of “several complaints regarding [her] poor quality/incomplete inspections.” (ECF No. 9-3 at 20 to 21.) On October 28, 2015, Towns was informed that he could no longer conduct inspections and had to attend remedial training. (ECF No. 9 at 7.) Towns filed a charge of sex discrimination and retaliation on November 9, 2015, with the EEOC. (ECF No. 9-1 at 2.) In the EEOC charge, Towns stated “[TDA] indicated that I failed an audit and a female employee did not. I believe that my employer told the State agency's auditor of my previous complaints of discrimination.” (ECF No. 9-1 at 2.)

         II. PROPOSED CONCLUSIONS OF LAW

         Federal Rule of Civil Procedure 56(a) provides that “the court shall grant summary judgment 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.” When assessing whether to grant summary judgment, a judge “may not ‘make credibility determinations or weigh the evidence,' because those are ‘jury functions.'” Jordan v. Kohl's Dep't Stores, Inc., 490 Fed.Appx. 738, 741 (6th Cir. 2012) (citation omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Instead, the judge must determine “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.” Block v. Meharry Med. Coll., 723 Fed.Appx. 273, 277 (6th Cir. 2018) (quoting Anderson, 477 U.S. at 251-52). “In resolving a summary judgment motion, th[e] court must view the evidence in the light most favorable to [the nonmovant].” Huckaby v. Priest, 636 F.3d 211, 216 (6th Cir. 2011) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         “However, the party opposing the summary judgment motion must ‘do more than simply show that there is some metaphysical doubt as to the material facts.'” Highland Capital, Inc. v. Franklin Nat'l Bank, 350 F.3d 558, 564 (6th Cir. 2003) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994)). “[T]o survive summary judgment, [the nonmovant] must provide evidence ‘beyond his pleadings and his own conclusory statements, to establish the existence of specific triable facts.'” Gordon v. Louisville-Jefferson Cty. Metro Gov't, No. 3:08-cv-0029, 2011 WL 777939, at *4 (W.D. Ky. Feb. 28, 2011) (quoting Maki v. Laako, 88 F.3d 361, 364 (6th Cir. 1996)); see also Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 410 (4th Cir. 2015) (“To overcome a motion for summary judgment, however, the nonmoving party may not rely merely on allegations or denials in its own pleading but must set out specific facts showing a genuine issue for trial.” (internal citation and quotation omitted)). The nonmovant may survive summary judgment by designating “specific facts in affidavits, depositions, or other factual material showing ‘evidence on which the jury could reasonably find for the plaintiff.'” Phillips v. UAW Int'l, 149 F.Supp.3d 790, 798 (E.D. Mich. 2016) (quoting Anderson, 477 U.S. at 252).

         A. Qualifying as an ...


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