United States District Court, M.D. Tennessee, Nashville Division
RICHARDSON, NITED STATES DISTRICT JUDGE.
Wanda Powell, filed this action against her former employer,
Defendant, The Tennessee Credit Union, asserting
discrimination based on her race, as well as retaliation, in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”) (Counts I & II) and the
Tennessee Human Rights Act (Counts III & IV). 42 U.S.C.
§ 2000e et seq.; Tenn. Code Ann. §
4-21-101. Plaintiff also asserted a claim under the Tennessee
Public Protection Act (Count V). Tenn. Code Ann. §
50-1-304. On May 11, 2018, Judge Crenshaw concluded that
Plaintiff's state law claims (Counts III-V) were
time-barred and dismissed those claims with prejudice. (Doc.
No. 14). This case was subsequently transferred to the
undersigned. (Doc. No. 18). Before the Court is
Defendant's Motion for Summary Judgment (Doc. No. 20),
which seeks summary judgment on Plaintiff's remaining
claims, i.e., her Title VII claims (Counts I and
II). Plaintiff filed a response (Doc. No. 25), and Defendant
replied (Doc. No. 27). For the reasons stated below,
Defendant's motion will be GRANTED in
part and DENIED in part.
August 21, 2011, Plaintiff began working as a bank teller for
The Tennessee Credit Union. (Doc. No. 28 ¶ 1; Doc. No.
22-2). On December 7, 2016, using Defendant's intraoffice
instant messaging system, Plaintiff discussed drafting a
letter to the Equal Employment Opportunity Commission
(“EEOC”) with three other employees. (Doc. No. 28
¶¶ 16-17). Yvonne Parrish, one of the employees
involved in the messaging chain, stated, “I think today
is the day that Wanda is dropping the bomb - with the copy of
the EEOC complaint letter. Wanda = when you get her, let us
know so we can be on HIGH alert.” (Doc. No. 28 at
¶ 28; Doc. No. 22-9 at 27). Plaintiff responded,
“LETTER NOT READY YET . . . HUBBY WAY TO [sic] BUSY
WITH SOME CASES.” (Doc. No. 28 at ¶ 29; Doc. No.
22-9 at 28). Tracy Dain and Blair Schooler also participated
in this message chain. (Doc. No. 28 at ¶ 29; Doc. No.
22-9 at 27).
December 8, 2016, Defendant began investigating
Plaintiff's use of the intraoffice instant messaging
system after an assistant branch manager, Cayce Taylor,
notified management that she observed Plaintiff's
“excessive” use of the instant messaging system.
(Doc. No. 28 at ¶ 20). Kathy Johnson, Defendant's
Vice President of Operations, instructed Donna Hoff,
Defendant's Vice President of E-Operations, to review the
computer logs and determine how often Plaintiff was utilizing
the instant messaging system. (Id. at ¶ 21).
After being apprised of the results of Ms. Hoff's review,
Ms. Johnson concluded that Plaintiff's use of the instant
messaging system was excessive, and for personal, rather than
business, purposes. (Id. at ¶ 22). Ms. Johnson
notified Karla Kellogg, Defendant's Human Resources
Generalist, of her findings. (Id. at ¶ 23). Ms.
Kellogg determined that Plaintiff's excessive use of the
instant messaging system violated Defendant's Information
Systems Usage and Standards Policy, which limits the use of
Defendant's instant messaging system to “business
purposes only, ” and notes that “. . . any
violation may result in disciplinary action, up to and
including termination.” (Id. at ¶ 24;
Doc. No. 22-7 at 5-8).
Kellogg further determined that Plaintiff violated the same
policy on October 27, 2015, when Plaintiff inappropriately
used the Internet at work. (Doc. No. 28 at ¶ 24). The
disciplinary report, which Plaintiff signed, stated that
Plaintiff was to review Defendant's Information Systems
Usage and Standard Policy. (Doc. No. 28 at ¶ 24; Doc.
No. 22-7 at 16-17). The disciplinary report stated that any
further violations of the Information Systems Usage and
Standard Policy would lead to termination. (Doc. No. 28 at
¶ 25; Doc. No. 22-7 at 16-17). Plaintiff contends that
she was informed that the disciplinary report related only to
the prohibited use of the Internet to visit sexually
suggestive websites; thus, she was not warned about personal
use of Defendant's instant messaging system. (Doc. No.
22-1 at 25-26).
December 12, 2016, Defendant terminated each of the four
employees that participated in the intraoffice instant
messaging conversation regarding Plaintiff's EEOC letter.
(Doc. No. 28 at ¶ 17). Defendant's proffered reason
for termination of Plaintiff and the other three employees
was violation of the company policy based on misuse of
corporate assets for non-business purposes based on
excessive, personal use of the intraoffice instant messaging
system. (Id. at ¶ 18).
December 30, 2016, Plaintiff sent to the EEOC the letter she
had referenced drafting in the December 7, 2016 instant
message conversation. (Doc. No. 22-1 at 15). In the letter,
Plaintiff expressed her belief that she “fel[t] like
the bank has discriminated against [her] on the basis of
[her] race and ethnicity” and stated that Defendant
denied her two promotions in favor of “less-qualified
Caucasian employees.” (Id.). Plaintiff also
referenced a negative performance evaluation that prevented
her from getting a raise. (Id. at 1-2). Plaintiff
indicated that prior to her termination, she had discussed
drafting the EEOC letter in the instant messaging system and
that when Mr. Martin terminated Plaintiff, Plaintiff observed
several printed pages of Plaintiff's instant messages in
front of him. (Id. at 2; Doc. No. 25-1 at ¶ 6).
The word “EEOC” contained within the transcript
was highlighted in yellow. (Doc. No. 25-1 at ¶ 6).
February 14, 2017, Plaintiff submitted a Charge of
Discrimination to the Tennessee Human Rights Commission and
the EEOC. (Doc. No. 22-11). In the Charge, Plaintiff alleges
In August 2016, I applied for the position of Scanner
Specialist. I later found out that a White employee, who did
not currently work for my employer, was hired into the
position. In September 2016, I was not given my pay raise. I
later found out that Gladdis (White) received her pay raise.
In November, [sic] 2016, I sent a message to three other
co-workers informing them that I was going to send a letter
to the EEOC. On December 12, 2016, the CEO showed me a copy
of the message I sent stating I was sending a letter to the
EEOC and I was discharged. . . . I believe that I have been
discriminated against based on my national origin (Hispanic),
and retaliated against for my protected activity, in
violation of Title VII of the Civil Rights Act of 1964, as
(Id.; Doc. No. 22 at ¶ 36).
February 1, 2019, Defendant filed its Motion for Summary
Judgment, with supporting brief. (Doc. No. 20; Doc. No. 21).
Plaintiff filed a response wherein Plaintiff indicated that
she abandoned her claims for failure to promote (Count I),
but still opposed summary judgment as to her retaliatory
discharge claim (Count II). (Doc. No. 25 at 9)
(“Plaintiff abandons the claims related to failure to
promote”). Accordingly, the Court will grant
Defendant's Motion for Summary Judgment with respect to
Count I. See Carrigan v. Arthur J. Gallagher Risk Mgmt.
Servs., Inc., 870 F.Supp.2d 542, 550 (M.D. Tenn. 2012)
(Trauger, J.) (granting summary judgment as to claims that
plaintiff abandoned). Defendant's Motion for Summary
Judgment with respect to Count II is ripe for review.
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(a). “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) (emphasis in original). In other words, even if
genuine, a factual dispute that is irrelevant or unnecessary
under applicable law is of no value in defeating ...