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Poe v. Brunswick Corp.

United States District Court, E.D. Tennessee, Chattanooga Division

July 1, 2019

DONNA R. POE, Plaintiff,
v.
BRUNSWICK CORPORATION, d/b/a BRUNSWICK BOAT GROUP, Defendant.

          MEMORANDUM OPINION

          THOMAS W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE

         This 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).[1] Oral argument is unnecessary, and the motion is ripe for the Court's determination.

         Plaintiff 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 dismissed.

         I. BACKGROUND

         Plaintiff 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]

         On 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.].

         Steve 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. [Id.].

         The 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 4-5].

         The 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 terminated. [Id.].

         Per 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. [Id.].

         Poe 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].

         In 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]/

         At some 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.].

         Trent, 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].

         Poe 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].

         A June 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].

         Poe 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 7-8].

         Poe 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 history. [Id.].

         As to 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].

         On the 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 1].

         At the 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].

         Poe 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].

         In an 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].

         Poe 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].

         Poe 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].

         II. STANDARD OF REVIEW

         Defendant's 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.”

         After 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).

         To 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 ...


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