United States District Court, E.D. Tennessee, Chattanooga Division
DONNA R. POE, Plaintiff,
BRUNSWICK CORPORATION, d/b/a BRUNSWICK BOAT GROUP, Defendant.
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE
civil action is before the Court for consideration of
Defendant's motion for summary judgment. [Doc. 30].
Plaintiff has not responded, and the time for doing so has
passed. See E.D. Tenn. L.R. 7.1(a). Oral argument is
unnecessary, and the motion is ripe for the Court's
has filed suit pursuant to the Tennessee Human Rights Act
(“THRA”), Tenn. Code Ann. §§ 4-21-101
et seq., and the Tennessee Disability Act
(“TDA”), Tenn. Code Ann. §§ 8-50-103
et seq., for alleged discrimination based upon her
age and disability. Plaintiff further asserts causes of
action under Tennessee law for retaliatory discharge after
filing a worker's compensation claim, and for intentional
infliction of emotional distress. For the reasons that
follow, the motion will be granted and the case will be
Donna Poe began working for Brunswick (also known as Sea Ray)
in 1985, at their Vonore Tellico plant, which produces boats.
[Doc. 31-1 at 7]. In the last few years of her employment,
Poe worked as a “quality control technician” or
“quality assurance assembly final rack inspector”
and was responsible for inspecting completed boats.
[Id. at 7-8]. The primary duties of her job were to
verify that boats were built to hard copy specifications,
ensure all equipment and components were installed or loaded
in a boat, build the owner's packet and complete all
necessary paperwork, and enter all findings and variables
into the quality database. [Id. at 8; Doc. 31-2 at
1]. The rack inspection is the final inspection of the boat
before it ships, and by signing off on a rack inspection, the
inspector is verifying that all critical checks have been
completed and any defects have been resolved. [Doc. 32 at 3]
September 14, 2010, Poe signed an “Acknowledgement of
the Employee Handbook, ” which confirmed that she was
provided a copy of the Sea Ray employee handbook, had read
the handbook, and agreed with the guidelines, processes, and
procedures. [Doc. 31-1 at 9; Doc. 31-3 at 1]. However, Poe
states that she had only read parts of the handbook at that
time. [Doc. 31-1 at 9]. The handbook contained a section on
“Discharge Violations, ” which listed types of
conduct that “may and normally will subject an employee
to immediate involuntary discharge, ” including
“repeated unsatisfactory job performance or quality of
work.” [Doc. 31-1 at 9-10; Doc. 31-4 at 1]. The
handbook also provides that, if an employee disagrees with
the outcome of the disciplinary action taken at any step,
they can appeal the action to the review board. [Doc. 31-1 at
10; Doc. 31-4 at 1]. Poe states that she was not aware of
this review process, although it was in the employee
handbook, which she had available to her. [Doc. 31-1 at 10].
Because she was not aware of the process, Poe never requested
a review of any disciplinary decision. [Id.].
Lyons, a quality manager at the plant in Poe's chain of
command, signed a disciplinary report regarding incidents
involving Poe in July 2015. [Doc. 31-1 at 15; Doc. 31-5 at
1]. Poe's direct supervisor at that time was Mitch Trent,
who reported to Lyons. [Doc. 31-1 at 15]. In July 2015, Poe
had a good working relationship with Lyons, who was around 50
years old. Poe never heard Lyons make any comment suggesting
he had a problem with her age, or anyone else's age.
report on Poe's July 2015 disciplinary action states
that, on July 16, 2015, Brunswick was notified by a dealer
that a boat had been sent from the factory without hooking up
the fuel fill hose and vent hose, which resulted in a
significant fuel spill into the bilge and ski locker of the
boat. [Doc. 31-1 at 16; Doc. 31-5 at 1; Doc. 32 at 4]. If
these hoses are not properly attached, when someone puts fuel
in the boat, it will go into the gas tank, and then begin
spilling down the side of the boat, into the bilge, and the
bottom area of the boat, which Poe admits, can create a
safety hazard. [Doc. 31-1 at 16]. The document states that
Poe signed off on the boat as complete without the mandatory
end of line quality assurance pressure checks required, but
Poe disputes whether she failed to conduct these tests.
[Id. at 16-17; Doc. 31-5 at 1]. Poe states that, at
that time, no one in the plant was correctly checking the
fuel lines. [Doc. 31-1 at 17]. In fact, the disciplinary
record states that, due to the severity of the failure, the
company audited all fuel-related work instructions and
revised those instructions. [Id.; Doc. 31-5 at 1].
Specifically, Brunswick added a construction record sign off
in which the inspector would have to indicate the time and
the pressure used for the pressure test, as well as a
pressure check label which would be on the boat to show the
pressure check verification. [Doc. 31-1 at 18; Doc. 32 at
report goes on to state that on July 29, 2015, it was brought
to Brunswick's attention that Poe recorded a boat as
complete on the construction record without the mandatory
fuel system sign off required by the new procedures. [Doc.
31-1 at 18; Doc. 31-5 at 1]. The document states that Poe
questioned whether the sign off occurred before the changes
were implemented, but Lyons noted that this was not the case.
The document stated that, after looking into the issue, it
was a “fireable” offense, and Poe agreed that if
someone failed to make those checks they could be fired for
it. The document further states that Jorge Felix, vice
president of manufacturing, recommended that Poe be
Brunswick's disciplinary policy in the employee handbook,
Poe's July 2015 incidents were discussed by a review
board comprised of Alicia Harris, Plant Manager Mike Fritts,
Human Resources Manager Lee Haniford, Engineering Manager
Jonathan Converse, and Assembly Manager Simon Monaghan. [Doc.
32 at 5]. The review board discussed the seriousness of the
quality control error and concluded that it was grounds for
termination, but, given the length of Poe's employment
tenure, the review board decided to issue her a final
warning, along with a suspension. [Doc. 32 at 5-6]. The
disciplinary record reflects that the review board felt that,
given Poe's history as an employee, she should be given a
final warning with a three-day unpaid suspension, but that
any further quality issues would result in her termination.
[Doc. 31-1 at 18; Doc. 31-5 at 1]. Poe signed off on a change
of employee status form which recounted the two July
incidents, provided the dates of suspension, and stated that
“any further violation may result in additional
discipline including termination.” [Doc. 31-7 at 1].
Poe signed the change of employee status form, but did not
agree with it. [Doc. 31-1 at 19]. She signed the document
because Lyons took her into a room with a human resources
employee and asked why she would want to kill someone,
comparing the situation to the death of Poe's son.
states that she does not contend that her warning and
suspension regarding issues in July of 2015 were issued
because of her age. [Id.]. However, she felt that it
was unfair because no one else in her department was faulted
for the failure except her. [Id. at 19-20].
October 2015, Poe injured her left ankle while working, after
she stepped into a boat to inspect something and her foot
fell through a hole that had been covered with carpet. [Doc.
31-1 at 20; Doc. 31-6 at 1]. When she injured herself, she
told her supervisor, Trent, who helped her to the nurse's
station. [Doc. 31-1 at 20]. After she injured her ankle, she
never went on leave and had no lost time as a result of the
injury. [Id. at 24]. Instead, she had to show up to
work and sit in an office, although she was not provided with
any additional duties to perform in the office.
[Id.]. At some point around the holiday season of
2015, Poe was allowed to resume her inspection duties but had
some restrictions on how many hours a day she could work and
whether she could climb into boats. [Id. at 25]. In
February 2016, Poe resumed full duty, but wore an ACE bandage
for a little support. [Id. at 25, 33]/
point before June 2016, Harris replaced Lyons as the quality
manager above Poe. [Doc. 31-1 at 22]. Prior to the discipline
that Poe received in June 2016, she rarely talked to Harris,
and never heard Harris make a comment about anyone's age.
Regarding Poe's worker's compensation claim and ankle
injury, Harris told Poe “we will be thankful when you
get off of your restrictions and you can come back full
time.” Poe never heard Harris make any negative
comments about her workers' compensation claim or anyone
else's workers' compensation claim. [Id.].
however, would make comments that he would be glad when Poe
got off of workers' compensation duty, because he needed
her back doing her job. [Id. at 22-23]. Trent would
also get irritated because he would have to come pick Poe up
in the parking lot with a golf cart due to her ankle injury.
[Id. at 23]. When she resumed full duty in February
2016, Trent put her over a job inspecting the cruising boats,
which she had no knowledge of, rather than putting her back
to her normal job, but she received the same pay and
benefits. Additionally, Poe was sick with pneumonia in 2016,
and, when she returned to work, Trent asked her when she was
going to retire. Poe told Trent that she was not going to
retire until she had to, and said that she was going to be
tested for possible lung cancer, to which Trent responded
that he needed to know now because he needed to get someone
in and trained before she left, mentioning that Poe was 60
years old. Poe stated that she felt like Trent wanted her out
of the company because she was still on workers'
compensation and it was “like [she] was a
burden.” [Id.]. Poe did not report Trent's
comments to anyone, because she did not know if they were
good or bad. [Id. at 24].
also stated that Lyons had made a negative comment when she
injured her ankle at work in October 2015, specifically,
stating that he wished she had not injured herself because he
needed her as an inspector on the floor and it “looked
bad on him.” [Id. at 16]. Poe also stated that
Lyons tried to get her to use her vacation time while she was
injured, so that it would not be held against the company for
purposes of workers' compensation. However, her ankle
injury occurred in October 2015, and, at the time of her July
2015 discipline, Lyons had not made any of the alleged
comments about her ankle. [Id.]. Moreover, after
Lyons tried to get Poe to use her vacation time, she asked a
human resources employee if she had to do so, and was told
that she did not, so she did not use her vacation time.
[Id. at 39]. However, Poe did not believe that Lyons
was a person trying to push her out of the company.
[Id. at 16].
2016 writeup, signed by Harris, indicates that on June 3,
2016, Brunswick was notified by Prince William Marina, once
of its largest independent dealers, that they received a boat
from the Vonore Tellico facility without a steering wheel.
[Doc. 31-1 at 26; Doc. 31-8 at 1; Doc. 32 at 6]. The document
states that an investigation revealed that three employees
did not follow proper procedures, leading to the boat leaving
the facility without a steering wheel: Ben Reynolds, a
functional test inspector, Danny Lynn, a member of
management, and Poe. [Doc. 31-1 at 26-27; Doc. 31-8 at 1].
estimated that Reynolds was in his early 30s; and the records
indicate that his birthdate is February 10, 1975, meaning he
was 41 years' old at the time of the incident. [Doc. 31-1
at 26; Doc. 32 at 7]. She stated that Reynolds had
performance warnings “all of the time, ” and was
moved to the functional test unit because he had so many
issues in the lake test unit. [Doc. 31-1 at 26]. Poe was
informed of this by James Blankenship, another inspector who
took Reynold's lake inspection job. [Id. at 27].
Poe stated that she asked Harris if Reynolds was disciplined
as a result of the June 2016 incident, and was informed that
Reynolds was not disciplined because he did his job
correctly. [Id.]. However, in her affidavit, Harris
states that, at the time of the June 2016 incident, Reynolds
was not on “final warning status, ” although he
had received a verbal warning nine months earlier for an
attendance-related issue, and the review board decided to
take the next step in the progressive discipline process and
issue Reynolds a written warning for his error. [Doc. 32 at
estimated that Lynn was in his 50s, and the records indicate
that his date of birth is January 5, 1960, meaning that he
was 56 at the time of the incident. [Doc. 31-1 at 27; Doc. 32
at 7]. Poe was not aware if any discipline was issued to Lynn
as a result of the June 2016 incident. [Doc. 31-1 at 28]. She
was also unsure whether Lynn had any prior disciplinary
Poe, the June 2016 writeup indicates that, as the rack
inspector, she was required to verify that the steering wheel
was installed. [Doc. 31-1 at 28; Doc. 31-8 at 1]. The writeup
states that neither the steering wheel nor the tag was in the
boat when it was signed off as complete by Poe. [Doc. 31-1 at
28; Doc. 31-8 at 1]. The writeup further states that Poe was
interviewed about the issue and admitted to the quality
manager that she had not visually inspected the boat as
required, but Poe contests whether this statement is true.
[Doc. 31-1 at 28; Doc. 31-8 at 1]. The document states that
management followed up with progressive discipline for each
of the three employees, and, because Poe was on a last and
final warning based on the July 2015 issues, she was
terminated for poor job performance. [Doc. 31-8 at 1].
day that Poe was notified of her termination, she had
returned to the plant at 12:30 p.m. after a doctor's
appointment. [Doc. 31-1 at 28]. She took her report from the
doctor to the nurse, and went back out onto the floor, when
Harris stepped out around 4:30 p.m. and asked to speak to
her. [Id. at 29-30]. Previously, Poe had given Larry
Holsonback, a human resources employee, some forms regarding
use of medical family leave to have cataract surgery on her
eyes, and Poe thought Harris wanted to discuss the medical
leave. [Id.]. Instead, Harris informed Poe that she
had been terminated because she had let a boat go out without
a steering wheel. [Id. at 30]. Poe asked to see the
construction record paperwork, and Harris informed her that
it did not matter, because she was terminated.
[Id.]. At the meeting, Poe refused to sign the
change of employee status form. [Id.; Doc. 31-9 at
time of her termination, the reason she was given for the
termination was that she did not follow proper production
procedures as trained which resulted in sub-standard product
being shipped. [Doc. 31-1 at 32; Doc. 32-8 at 1]. No one at
Brunswick ever told her any different reason for her
termination. [Doc. 31-1 at 32]. Additionally, at the time
that she was terminated, Poe was back on full duty after her
ankle injury. [Id. at 33]. Although Poe felt that
Trent had made numerous negative comments about her, she
admits that Trent was not present at her termination meeting,
his name was not on any of the documents relating to her
termination, and she was not aware of any facts suggesting
that Trent recommended her termination. [Id. at 31].
states that she is not “saying that they terminated
[her] because [she] got hurt, ” but felt like after her
injury Brunswick was finding a way to terminate her.
[Id. at 36]. Poe named three other individuals,
Dixie Queen, Jerry Holt, and Annette Kirkland, that she
believed were terminated by Brunswick because of injuries.
[Id. at 36-37]. Queen, who is about the same age as
Poe, was let go seven or eight years ago because they no
longer had a job that she could do, after she got run over by
a tugger and had significant injuries to her ankle and leg.
[Id. at 37]. Holt was 63 years old and was let go
six or seven years ago for taking a “Nitro, ”
which was medication his doctor had prescribed him after
heart surgery. Brunswick's position was that Holt could
not take the medication at work. Poe stated that her
understanding was that Holt was fired because he did not go
to Brunswick's doctor. [Id.]. Kirkland was
around 50 years old and was let go two years prior after she
was run over by a golf cart at work resulting in many
surgeries, including brain surgeries, and had to go on
long-term disability. [Id. at 37-38].
affidavit, Larry Holsonback, a human resources employee,
stated that Queen was employed by Brunswick from 1991 until
2009, and filed a claim for workers' compensation
benefits in 2007. [Doc. 33 at 1]. He states that Queen was
laid off due to a lack of work. [Id.]. Additionally,
Holsonback stated that Kirkland was employed by Brunswick
from 1994 to 2017, and filed a claim for workers'
compensation benefits in 2013. [Id. at 2]. Kirkland
was deemed to have voluntarily resigned her employment when
she was unable to return to work due to an extended leave of
absence. [Id.]. Separation paperwork for both Queen
and Kirkland supports Holsonback's affidavit.
[Id. at 3-4].
stated that the only health impairments that she contends
were a basis for Brunswick's decision to discipline or
terminate her were her ankle injury and her lung problems,
because each year she would have pneumonia and have to take a
week or two off work. [Doc. 31-1 at 40]. Trent made comments
about her taking time off with pneumonia in 2016, saying that
he wished she would get over the pneumonia because he needed
her as an inspector. However, neither Holsonback or Harris
ever discussed Poe's health issues with her, and she
never heard either of those individuals make any comment
about her age, or anyone else's age. [Id.].
Harris states in her affidavit that Trent was not a member of
the review board and had no involvement in the July 2015 or
June 2016 decisions to issue Poe discipline or terminate her
employment, nor did he provide any input as to those
decisions. [Doc. 32 at 8]. However, Poe stated that Trent and
Harris communicated frequently. [Doc. 31-1 at 45].
stated that, after she was terminated, Blankenship, who is in
his late 30s, took over her inspection duties. [Doc. 31-1 at
41]. She knew this because after her termination meeting,
Blankenship was in her station, and told her that Harris had
told him that he was taking over Poe's position.
[Id.]. However, Harris states that, immediately
after Poe's termination, Trent (born 1965) and Phil
Lively (born 1961) took over Poe's prior duties. [Doc. 32
at 8]. The next three individuals to fill Poe's prior
position were Rita Boles (born 1981), Ryan Taylor (born
1993), and Gretta Roach (born 1979). [Doc. 32 at 8-9]. Poe
admitted that, when she left Brunswick, she knew other
employees who were still there in their 60s or older. [Doc.
31-1 at 42]. She could not think of anyone in their 60s or
otherwise that she thought Brunswick had terminated because
of their age. [Id. at 43].
STANDARD OF REVIEW
motion is brought pursuant to Federal Rule of Civil Procedure
56, which governs summary judgment. Rule 56(a) sets forth the
standards governing summary judgment and provides in
pertinent part: “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.” The procedure set out in Rule 56(c)
requires that “[a] party asserting that a fact cannot
be or is genuinely disputed must support the
assertion.” This can be done by citation to materials
in the record, which include depositions, documents,
affidavits, stipulations, and electronically stored
information. Fed.R.Civ.P. 56(c)(1)(A). Rule 56(c)(1)(B)
allows a party to “show that the materials cited do
not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact.”
the moving party has carried its initial burden of showing
that there are no genuine issues of material fact in dispute,
the burden shifts to the non-moving party to present specific
facts demonstrating that there is a genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). “The ‘mere
possibility' of a factual dispute is not enough.”
Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th
Cir. 1992) (citing Gregg v. Allen-Bradley Co., 801
F.2d 859, 863 (6th Cir. 1986)). Moreover, mere conclusory and
unsupported allegations, rooted in speculation, are
insufficient to meet this burden. Bell v. Ohio State
Univ., 351 F.3d 240, 253 (6th Cir. 2003).
defeat a motion for summary judgment, the non-moving party
must present probative evidence that supports its complaint.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50 (1986). The non-moving party's evidence is to be
believed, and all justifiable inferences are to be drawn in
that party's favor. Id. at 255. The court
determines whether the evidence requires submission to a ...