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Hasting v. First Community Mortgage

United States District Court, M.D. Tennessee, Nashville Division

July 31, 2019




         Pending before the Court is Defendant's Motion for Summary Judgment (Doc. No. 39). Plaintiff has filed a Response (Doc. No. 48), and Defendant has filed a Reply (Doc. No. 58).


         Plaintiff Marie Hasting is a former employee of Defendant First Community Mortgage (“FCM”). In this action, she alleges that Defendant discriminated against her based upon gender (female) and national origin (Hispanic) and retaliated against her for protected activity, all in violation of Title VII (42 U.S.C. § 2000e, et seq.).[1]

         Plaintiff began her employment with Defendant in 2014 as Director of Human Resources. At that time, Defendant's CEO was Keith Canter and its President was Philip Carlton. The Offer of Employment and Terms letter, dated October 29, 2014, and signed by both Plaintiff and Canter (as CEO of FCM), states that Plaintiff's annual salary will be $90, 000, and a bonus will be paid as follows: (a) $2, 500 due on the most immediate pay date after her official start date, to cover the bonus for the 4th quarter 2014; and (b) a $2, 500 bonus in each quarter of 2015 (Doc. No. 42-1, Ex. 1).[2] Plaintiff contends that Canter agreed that Plaintiff's salary would be increased by 25% after one year, but that agreement is not reflected in the Offer Letter.

         Plaintiff alleges that, over time, she began to feel that Canter treated her differently than other employees by (1) walking by her without saying “good morning” and (2) socializing or attending lunches with male employees and not with Plaintiff.[3] In December 2015, Plaintiff allegedly discussed this perceived differential treatment with Canter. She claims she told Canter that she felt like he was treating her differently and that it was important for her to have a good relationship with her boss. She contends that after her conversation with Canter about this “differential treatment, ” Canter told Plaintiff to report to Carlton for her 2015 performance evaluation. Plaintiff claims she received an overall rating for 2015 of “very good” and then began reporting directly to Carlton, who by then had assumed responsibility for Human Resources.

         Plaintiff alleges that in March 2016, she met with Carlton to share concerns about Canter's behavior, and Carlton told Plaintiff about a group called the “Penis Club” (“the Club”). Plaintiff contends that the Club, named by a former female employee, was a group of male-only managers and executives who would go to lunch together, have meetings, and socialize together during work hours. Plaintiff's Complaint alleges that the Club members made company decisions without females present. Plaintiff complained to Carlton about being excluded from the Club.

         Plaintiff contends that at an executive team meeting in January 2017, while Carlton was out of the room, Plaintiff answered a number of work-related questions about the status and timeline for various projects that Carlton was handling. Plaintiff alleges she answered these questions truthfully. Plaintiff also alleges that, after the meeting, Carlton told her that she had “thrown him under the bus” in that meeting. A few days later, Carlton and Plaintiff met to do Plaintiff's 2016 performance evaluation. Although she claims she was surprised by and disagreed with some of the parts of her performance evaluation, Plaintiff did not consider that evaluation to be negative. Nonetheless, Plaintiff asserts that she realized during this meeting that she and Carlton were not going to be able to continue working together because she could not trust him anymore. The following Monday, Plaintiff resigned.


         Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary under applicable law is of no value in defeating a motion for summary judgment. See Id. at 248. On the other hand, “summary judgment will not lie if the dispute about a material fact is ‘genuine[.]'” Id.

         A fact is “material” within the meaning of Rule 56(c) “if its proof or disproof might affect the outcome of the suit under the governing substantive law.” Anderson, 477 U.S. at 248. A genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Harris v. Klare, 902 F.3d 630, 634-35 (6th Cir. 2018).

         The party bringing the summary judgment motion has the initial burden of identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Pittman v. Experian Information Solutions, Inc., 901 F.3d 619, 627-28 (6th Cir. 2018). If the summary judgment movant meets that burden, then in response the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Id. at 628.

         A party asserting that a fact cannot be or genuinely is disputed-i.e., a party seeking summary judgment and a party opposing summary judgment, respectively-must support the assertion by citing to materials in the record, including, but not limited to, depositions, documents, affidavits or declarations. Fed.R.Civ.P. 56(c)(1)(A). The court should view the facts and draw all reasonable inferences in favor of the non-moving party. Pittman, 901 F.3d at 628. Credibility judgments and weighing of evidence are improper. Hostettler v. College of Wooster, 895 F.3d 844, 852 (6th Cir. 2018). As noted above, where there is a genuine dispute as to any material fact, summary judgment is not appropriate. Id. The court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient to survive summary judgment; rather, there must be evidence upon which the jury could reasonably find for the nonmoving party. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).

         TITLE VII

         Title VII makes it unlawful for an employer to discriminate against any individual because of such individual's gender, race or national origin. 42 U.S.C. § 2000e-2(a)(1); Risch v. Royal Oak Police Dep't, 581 F.3d 383, 390 (6th Cir. 2009). A plaintiff may use either direct or circumstantial evidence to bring a discrimination claim. Direct evidence is evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions. Rock v. T.N.H.D. Partners, LLC, 833 F.Supp.2d 802, 815 (M.D. Tenn. 2011).

         If a plaintiff relies on circumstantial evidence, she must establish a prima facie case of discrimination by a preponderance of the evidence. Redlin v. Grosse Pointe Pub. Sch. Syst., 921 F.3d 599, 606 (6th Cir. 2019). If she establishes that prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. If it does so, the burden returns to the plaintiff to show that the defendant's reason was a pretext for discrimination. Sybrandt v. Home Depot U.S.A., Inc., 560 F.3d 553, 557-58 (6th Cir. 2009); Monce v. Marshall Cty. Bd. of Educ., 307 F.Supp.3d 805, 814 (M.D. Tenn. 2018).[4] Throughout this burden-shifting approach, the plaintiff bears the ultimate burden of proving, by a preponderance of the evidence, the intent to discriminate. Monce, 307 F.Supp.3d at 814.


         Defendant has pointed to deposition testimony of Plaintiff that strongly suggests she has no direct evidence of gender or national origin discrimination by Carlton (Doc. No. 42-1 at 25 and 32 (Dep. at 98 and 126)).[5] Defendant claims that this testimony constitutes an admission by Plaintiff that Carlton did not discriminate against her on these prohibited grounds. Identifying this testimony satisfies Defendant's burden as the movant on this issue. Plaintiff's response to this claim purports to deny that she admitted any such thing, but she fails adequately to support her denial; her response states simply that Carlton knew about the Club, not that he personally discriminated against her (Doc. No. 49 at ¶ 28).

         In further response to Defendant's assertion, Plaintiff contends in her Affidavit (Doc. No. 52) that she now (after discovery) believes Carlton discriminated against her based on her gender (Id. at ¶ 14), but she does not adequately support this new “belief.” Affidavits used to oppose a summary judgment motion must be made on personal knowledge. See Fed. R. Civ. P. 56(c)(4). Conclusory assertions are not sufficient to show a genuine issue of fact necessary for the denial of summary judgment. Deramus v. McCoig, ...

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