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Powell v. The Tennessee Credit Union

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

September 11, 2019

WANDA IVETTE POWELL, Plaintiff,
v.
THE TENNESSEE CREDIT UNION, Defendant.

          MEMORANDUM OPINION

          UELI RICHARDSON, NITED STATES DISTRICT JUDGE.

         Plaintiff, 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.

         FACTUAL BACKGROUND[1]

         On 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).

         On 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).

         Ms. 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).

         On 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).

         On 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).

         On 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 that:

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 amended.

(Id.; Doc. No. 22 at ¶ 36).

         On 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.

         LEGAL STANDARD

         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(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 ...


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