Opinion
No. 1:00-cv-416.
April 11, 2002
MEMORANDUM
Plaintiff Yvonne Kinamore ("Kinamore") brings against her former employer, the Electric Power Board of the City of Chattanooga ("EPB"), a claim alleging racial discrimination and retaliation under 42 U.S.C. § 2000e, 42 U.S.C. § 1981, and T.C.A. § 4-21-101, and a claim alleging retaliatory discharge under the Tennessee Public Protection Act, T.C.A. § 50-1-304, and Tennessee common law for reporting illegal activities at EPB.
This matter is presently before the Court on a motion for summary judgment [Court File No. 10] by defendant. The plaintiff opposes this motion. For reasons expressed below, the motion [Court File No. 10] will be GRANTED.
I. STANDARD OF REVIEW
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
II. FACTS
The record will suggest the following findings of fact if the allegations of the plaintiff's complaint are viewed in the light most favorable to Kinamore. The Court makes these findings of fact solely for the purposes of resolving the motion before it.
Kinamore began working in a clerical position in the Energy Utilization Department at EPB in March 1981. After working in various position at EPB, she became a Power Sales Assistant in the Power Sales Department in the Marketing Division in March 1996. One of Kinamore's duties was to prepare monthly activities reports illustrating the contacts and sales made by three salesmen in the Power Sales Department.
The Marketing Division was restructured in the summer of 1996. The Power Sales Section was combined with the Advertising and Promotion Section to form the Advertising and Sales Section. Randy Jackson became the Acting Supervisor of the new section. Kinamore asserts that Randy Jackson approached her in August 1996 and requested that she change the figures on the activities reports to make them "look better." She informed him that she would not change the figures and that she could not make them look better. Randy Jackson then stated that the job of preparing the contacts/sales reports would be given to someone else to do.
Kinamore asserts that she spoke with Harold DePriest, who is currently the President and Chief Executive Officer of EPB and who was Assistant General Manager in 1996, about her interaction with Randy Jackson. She asserts that Harold DePriest told her to not worry about her job. Kinamore then went on a scheduled vacation.
On September 3, 1996, employees, including Kinamore, were officially transferred to the new Advertising and Sales Section. Although transferred to the new section, Kinamore remained a Power Sales Assistant and maintained the same pay and same job duties. However, when Kinamore returned from her vacation, she learned that she was no longer responsible for preparing the activities reports. LeAnn Higdon, a white female, was assigned the task of preparing the activities reports for the new section. LeAnn Higdon and Randy Jackson had previously worked together in the Advertising and Promotion Section. Kinamore is not aware of whether any changes in reporting were made or if LeAnn Higdon was asked to make the changes. Harold DePriest asserts that the salesmen do not work on commission so any changes made to the activities reports would not have affected the financial situation of EPB or its employees.
Kinamore asserts that she met with Harold DePriest again in October 1996 to report that she had been discriminated against when the duty of preparing the activities report was given to a white female. Kinamore asserts that Harold DePriest assured her that he would take care of the situation. Harold DePriest denies receiving Kinamore's complaint and asserts that he did not report this complaint to any of Kinamore's supervisors. Likewise, Kinamore's supervisors deny having any knowledge of this complaint. Kinamore also states that during this meeting, she and Harold discussed the possibility of promotion for Kinamore. Harold DePriest acknowledges that he and Kinamore had a general discussion about Kinamore's possibility of promotion at EPB "several years ago." Both he and Kinamore assert that they did not discuss a specific job or a time frame for promotion.
The Marketing and Administrative Division was further restructured in December 1996. Two departments comprised the restructured division: Contracts and Industrial Marketing Department and Residential and Commercial Marketing Department. Dan Gibbs became the Superintendent of the Contracts and Industrial Marketing Department. Kinamore and other employees were assigned to work with Dan Gibbs in the new department. Kinamore maintained her same pay and job title. She had not requested the transfer and interpreted the transfer as retaliation for reporting the racial discrimination to Harold DePriest in October. Kinamore does not know whether other black and white employees requested to be transferred to the new department.
In the spring of 1997, Dan Gibbs asked Peggy Reese, the Major Accounts Administrator, to perform the personnel evaluations for the three employees in Kinamore's section that were due over the course of the year. Peggy Reese evaluated John Watts, a white male, in April; Kinamore in June; but was transferred to another department before she could conduct the evaluation of Lynda Weathers. Kinamore received a positive evaluation and a merit increase in pay.
Sometime after her evaluation, Kinamore complained to Dan Gibbs that Peggy Reese should not have been permitted to perform Kinamore's evaluation because she had no supervisory authority over Kinamore. Kinamore perceived this act as a continuation of the retaliation for reporting racial discrimination to Harold DePriest in 1996. Kinamore asserts that Dan Gibbs apologized to her for the mistake but did not explain why Peggy Reese conducted the evaluation. Kinamore never complained to Peggy Reese. Kinamore reports that her co-workers, Lynda Weathers and John Watts commiserated with her about the unfair treatment and hoped that they also would not be treated unfairly. Kinamore did not know that Peggy Reese had already conducted the evaluation for John Watts. Kinamore states that rumors about her situation were circulated by other employees at EPB. She met with Rebecca Rollins, the Manager of Customer Revenue to discuss the situation.
The Marketing and Administrative Division was again restructured in October 1997. The Commercial and Industrial Marketing Department was merged with another department to become the Energy Services group of the Customer Revenue Department in the Customer Services Division. While in Customer Relations/Energy Services, Kinamore remained a Power Sales Assistant with the same rate of pay. Kinamore had no complaints while in Energy Services but for the fact that she was continually being transferred without notification. She viewed the transfer as a continuation of the retaliation.
On January 12, 1998, Kinamore was transferred from Customer Relations/Energy Services to Customer Relations/Technical Services. Her duties and pay again remained the same. She received a merit increase in pay after receiving a favorable evaluation in July 1998. She had no complaints while in Technical Services.
Kinamore asserts that while working in Technical Services in October 1998, she was speaking to her supervisor, Chuck Bowlin, about Rebecca Rollins when Rebecca Rollins walked by. Kinamore was speaking of how Rebecca Rollins retaliates against people and intimidates them. Kinamore asserts that Chuck Bowlin followed Rebecca in order to speak with her and that he later spoke with Harold DePriest about the situation. After Chuck Bowlin's attitude toward Kinamore changed, Kinamore also spoke with Harold DePriest because she was concerned about her job. Harold DePriest does not recall speaking with Chuck Bowlin or Kinamore about that matter, nor does Rebecca Rollins recall overhearing the conversation or speaking with Chuck Bowlin.
In November 1998, Rebecca Rollins instructed an employee to ask Kinamore to remove her belongings from the desk that she was using and to choose a new desk from the storage area. Kinamore was not told the reason why she was asked to move. Kinamore felt that Rebecca Rollins was retaliating against her for making the complaint to Harold DePriest. Rebecca Rollins recalls that she appointed Sandra Jones, a black female, to the position of Manager of the Records Department on November 16, 1998. The desk that Kinamore was using was similar to the desk used by other managers at EPB and Rebecca Rollins chose this desk for Sandra Jones. Additionally, Kinamore would soon be transferred and working on a different floor where she would necessarily be working at a different desk. She, therefore, asked Kinamore to relinquish the desk and choose one of the many suitable desks from the storage area. Kinamore did not complain to Rebecca Rollins about the desk change.
Kinamore was transferred from Technical Services to the Industrial Development and Community Relations Department in November 1998. Again, she remained in the same position and maintained the same pay. This department was renamed the Energy Services Department in December 1998, but the name change did not affect Kinamore's job title, duties, or rate of pay.
A new section formed within the department in December 1998. The goal of the new section, Community Relations, was to develop and implement public relations programs designed to enhance EPB's standing in the community. The developing programs in Community Relations required employees to be moved into that section. Employees without technical experience and training were also being transferred out of Technical Services. Kinamore was moved to Community Relations in April 1999 and was named a Community Relations Representative on June 9, 1999. Jerry Draper and Jay Willard, white males, were transferred to Community Relations in July and August 1999, respectively. Two other white males were not offered a position in Community Relations during the reorganization, and their employment was terminated on December 10, 1999.
Hosea Pierce, the Supervisor of Community Relations, gave Kinamore her annual performance evaluation on June 17, 1999. She received a merit increase in pay because of the favorable evaluation.
Kinamore complained to Beth Jones, the Manger of the Energy Services Department in 1999, about the supervision of Hosea Pierce, a black male. Kinamore's primary concern was that Hosea Pierce smoked cigarettes and used profanity in her presence. Beth Jones assured Kinamore that she would speak with Hosea Pierce. However, Kinamore asserts that Hosea Pierce continued to smoke and use profanity in her presence as well as in the presence of other white and black employees.
One of the duties of the Community Relations Section is to decorate the windows in the downtown EPB building with Christmas displays. On January 7, 2000, Rebecca Rollins, then the Vice President of Customer Relations, instructed Hosea Pierce to take down the Christmas windows. Hosea Pierce, Jay Willard, and Kinamore worked on the removal and clean up. The removal of the decorations lasted several days. On January 13, 2000, Hosea Pierce resumed the clean up by himself. At 1:30 p.m., he sought out Jay Willard and Kinamore because they should have been assisting him in the clean up. Hosea Pierce found Jay Willard at his desk reading the newspaper and Kinamore at her desk talking on the telephone.
Hosea Pierce assigned Jay Willard the task of taking wood from the windows to a storage area on a different floor. Kinamore was instructed to remove the decorative snow and other garbage that Hosea Pierce had swept into a pile from one window and take it to the dumpster. She was also instructed to sweep up the garbage from the other windows and dispose of it properly. There was some discussion by the parties regarding how to transport the garbage can with wheels from the elevator to the windows and out to the dumpster. Ultimately, Kinamore refused to do what she characterized as "custodial work."
Hosea Pierce then sent an e-mail message to Jay Willard and Kinamore and copied the message to his supervisor, Deanne Hawthorne, the Staff Director of Customer Relations. On January 17, 2000, Kinamore sent a memorandum to Deanne Hawthorne containing her statement regarding the Christmas windows situation and further complaints about Hosea Pierce. Kinamore sent another memorandum regarding complaints about Hosea Pierce to Deanne Hawthorne on January 25, 2000.
The defendant cites to this e-mail message as Exhibit 2 to the Pierce deposition, but this document is not attached to the deposition of Hosea Pierce [Court File No. 16]. As such, the Court cannot speculate as to the contents of this message.
Deanne Hawthorne conducted an investigation into the matter. As a result, on February 8, 2000, she issued a counseling statement to Kinamore regarding her refusal to perform the job assignment given to her by Hosea Pierce and further addressed other issues about Hosea Pierce that Kinamore had raised. Deanne Hawthorne also issued a counseling statement to Jay Willard for not reporting his location to a supervisor when he should have been cleaning the window area. Deanne Hawthorne also issued a counseling statement to Hosea Pierce for threatening employment action in his e-mail to Jay Willard and Kinamore without receiving prior approval from his supervisors. On February 10, 2000, Hosea Pierce issued a listing of job duties and responsibilities for each of the employees in Community Relations.
On February 15, 2000, Kinamore sent Deanne Hawthorne a response to the counseling statement. Kinamore denied any insubordination on her part and stated that she had acted "within the guidelines of the EPB sexual harassment policy" and states that "[t]he matter is clearly about racial intimidation, sexual discrimination, and retaliation." Kinamore copied this response to Terry Ramsey, the Human Resources Manager. Upon receiving the memorandum, Terry Ramsey arranged a meeting with Kinamore. During their discussion, the parties determined that the cigarette smoking and use of profanity by her supervisor did not constitute sexual harassment. Kinamore did not complain about racial discrimination in this meeting.
In the spring of 2000, Kinamore was sent to cross-train in the Customer Contact Department at the Information Desk while two of its employees were on leave due to family deaths. Another Customer Relations employee, Jerry Draper, a white male, also had been sent to cross-train in Customer Contact. Kinamore returned to her regular duties in Customer Relations when the employees in Customer Contact returned.
On May 5, 2000, Hosea Pierce gave Kinamore her annual performance evaluation. She received an overall rating of "needs improvement." Hosea Pierce identified specific reasons for the unfavorable evaluation. He noted that she generally had problems with completing assignments in a timely and thorough manner and that she needed to improve communication with her supervisor. Hosea Pierce also asserts that her work performance deteriorated resulting in Kinamore receiving two counseling statements that year. On May 25, 2000, Kinamore issued a rebuttal to her performance evaluation. She characterized Hosea Pierce's evaluation of her as "defamation," "very humiliating," and "continued harassment" after making her complaint about Hosea Pierce earlier in the year.
On June 9, 2000, Kinamore filed a charge of discrimination with the EEOC in which she asserts charges of racial discrimination and retaliation. Kinamore asserts that the racial discrimination began in 1998 when she asked to change desks. On August 11, 2000, in an amended charge, Kinamore alleges that the discrimination began in 1996 after she complained to Harold DePriest.
On July 28, 2000, the Community Relations Department hosted a "Louie the Lightning Bug" public relations event at Coolidge Park. "Louie the Lightning Bug" is a costume character used by EPB in a public safety campaign. Hosea Pierce instructed Kinamore and Sophia Lansden, a temporary Community Relations employee, to bring the costume to the park for the event. The women did as they were instructed. Sophia Lansden asserts that Kinamore dragged the costume on the ground going to and coming from the event which caused dark scratches on the costume's plastic eyes. She also asserts that Kinamore acknowledged the scratches and stated that she would clean the costume. Kinamore denies that she dragged the costume.
A few days later, Greg O'Haver, then the Vice President of Customer Relations, reviewed photographs that were taken of Louie at the Coolidge Park event. He noticed the scratches on the costume and asked Hosea Pierce about them. Hosea Pierce began an investigation in which he determined that Kinamore had dragged the costume on the ground and had not attempted to repair the costume. He reported the results of his investigation to Greg O'Haver. Greg O'Haver, after discussions with Terry Ramsey in Human Resources and with Harold DePriest, decided to impose a three-day suspension on Kinamore for her carelessness and lack of concern for EPB property. The damage to the costume could not be repaired and EPB had to purchase a new costume head for $1,217.
On August 18, 2000, Greg O'Haver and Terry Ramsey met with Kinamore to discuss the counseling statement and her impending suspension. On this date, Sophia Lansden asserts that Kinamore called Sophia Lansden's home attempting to persuade her to change her statement regarding the Louie costume incident. Kinamore allegedly offered to share with Sophia Lansden any settlement she might receive from EPB. Sophia Lansden asserts that Kinamore called her several more times that evening and the following day. Sophia Lansden did not report to work the following week because she did not want to discuss the situation with Kinamore anymore.
On August 21, 2000, Kinamore submitted a rebuttal to the counseling statement in which she denied that she dragged the costume and alleged that her suspension was the result of racial discrimination, harassment, and retaliation. Kinamore's suspension occurred on August 21, 22, and 23, 2000. She obtained a doctor's excuse from work for the remainder of that week. Kinamore requested and received an excuse from work for the following Monday and Tuesday, August 28 and 29, 2000, for the death of her grandmother. She reported to work for the remainder of the week. On that Friday, September 1, 2000, Greg O'Haver and Terry Ramsey met with Kinamore to discuss Sophia Lansden's complaints that Kinamore had been calling her home. Kinamore denies that she made those statements to Sophia Lansden.
After the September 1, 2000 meeting, Kinamore did not return to work. Kinamore submitted a doctor's excuse from work dated September 6, 2000. Kinamore was placed on family medical leave following receipt of this notice. She remained on this status until her family and medical leave benefits expired; EPB then placed her on extended medical leave.
Kinamore filed this suit on December 20, 2000, in which she claims that she had been constructively discharged. On December 28, 2000, EPB received a letter from Kinamore stating that she was resigning her employment. The letter did not include an effective date for her resignation. Following Kinamore's resignation, Esterill Evans, a black female, was transferred to Community Relations to replace Kinamore.
III. ANALYSIS
A. Statute of Limitations
Kinamore asserts claims of discrimination and retaliation under Title VII, Section 1981, and the Tennessee Human Rights Act ("THRA"). EPB argues that any claim of discrimination arising out of events that occurred prior to August 9, 1999, is barred by the applicable statute of limitations.
To bring an action under Title VII, Kinamore was required to file a discrimination charge with the EEOC within 300 days of the alleged discriminatory act. See Amini v. Oberlin College, 259 F.3d 493, 498 (6th Cir. 2001); Alexander v. Local 496, Laborers' Int'l Union of N. Am., 177 F.3d 394, 407 (6th Cir. 1999), cert. denied, 528 U.S. 1154 (2000); 42 U.S.C. § 2000e-5(e)(1). Kinamore first filed an EEOC charge on June 9, 2000. From this filing date, the 300-day statute of limitations applicable to Title VII actions filed in deferral states normally would preclude consideration of alleged violations occurring prior to August 13, 1999. Kinamore, however, alleges a continuing violation.
An ongoing, continuous series of discriminatory acts may be challenged, even if those acts would otherwise be time-barred, if one of those discriminatory acts occurred within the limitations period. Alexander, 177 F.3d at 408; Haithcock v. Frank, 958 F.2d 671, 677 (6th Cir. 1992); Dixon v. Anderson, 928 F.2d 212, 216 (6th Cir. 1991). Continuing violations fall into two categories of narrowly limited exceptions to the usual rule that statutes of limitations are triggered at the time the alleged discriminatory act occurred. See Haithcock, 958 F.2d at 677. The first category of continuing violations arises "where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation; that is where an employer continues presently to impose disparate work assignments or pay rates between similarly situated groups." Dixon, 928 F.2d at 216. However, "at least one of the forbidden discriminatory acts must have occurred within the relevant limitations period." Id. The second category of continuing violations arises "where there has occurred a longstanding and demonstrable policy of discrimination . . . . Unrelated incidents of discrimination will not suffice to invoke this exception; rather there must be a continuing over-arching policy of discrimination." Id. at 217 (internal quotations omitted).
Kinamore has not presented sufficient evidence for a continuing violation of either category. Kinamore cannot establish a serial continuing violation where there is no present discriminatory action. As explained below, Kinamore cannot establish that an act of racial discrimination or retaliation occurred during the limitations period. Kinamore also has not established that EPB had a longstanding policy of racial discrimination that was connected to any of EPB's decisions that affected Kinamore, including restructuring and transfers, assignments and reassigning duties, and discipline. For the purpose of Kinamore's Title VII claim, the Court will not consider allegations of discrimination occurring prior to August 13, 1999.
The THRA imposes a one-year statute of limitations. T.C.A. § 4-21-311(d). 42 U.S.C. § 1981 does not specify a statute of limitations; however, the one-year limitations period from Tenn. Code Ann. § 28-3-104 is applicable. See Wade v. Knoxville Utils. Bd., 259 F.3d 452, 464 (6th Cir. 2001); Jackson v. Richards Med. Co., 961 F.2d 575, 578 (6th Cir. 1992). Tennessee also recognizes the continuing violation doctrine. See Spicer v. Beaman Bottling Co., 937 S.W.2d 884, 886 (Tenn. 1996). Kinamore cannot establish a continuing violation because the acts she complains of are discrete, isolated, and complete. See id. at 890. Moreover, as the Court explains below, she cannot establish that an act of discrimination or retaliation occurred during the limitations period. The Court will not consider allegations of discrimination occurring prior to June 9, 1999, for Kinamore's claims under § 1981 and the THRA.
The actions of which Kinamore complains, and that also occurred within the limitations period, include (1) being exposed to the use of profanity and cigarette smoking by Hosea Pierce during the second half of 1999; (2) being subjected to "custodial work" in January 2000 and then being counseled for her refusal to comply; (3) being sent to cross-train at the Information Desk in the spring of 2000; and (4) receiving a negative performance evaluation on May 5, 2000.
B. Disparate Treatment
Under Title VII, a plaintiff can prove her case by using direct evidence or circumstantial evidence sufficient to establish an inference of discrimination. Newman v. Federal Express Corp., 266 F.3d 401, (6th Cir. 2001). An inference of discrimination can be raised through a prima facie case. If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to proffer a legitimate, non-discriminatory reason for the adverse action. Logan v. Denny's, Inc., 259 F.3d 558, 567 (6th Cir. 2001); Wade v. Knoxville Utils. Bd., 259 F.3d 452, 461 (6th Cir. 2001). However, the ultimate burden of proof remains with the plaintiff, who must demonstrate that defendant's asserted reason is a pretext for discrimination. Logan, 259 F.3d at 567; Wade, 259 F.3d at 452.
Claims of racial discrimination and retaliation under Title VII, § 1981, and the THRA are governed by the same burden-shifting standards. Wade, 259 F.3d at 464. Because the same analysis applies to claims under each of the statutes, for the sake of efficiency, the Court will analyze the claims under "Title VII" only.
A Title VII plaintiff can rebut a defendant's proffered reason for an adverse employment action in several ways. The plaintiff can demonstrate (1) the employer's asserted reason had no basis in fact; (2) the proffered reason did not actually motivate the discharge; or (3) the reason was insufficient to motivate the adverse action. Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 600 (6th Cir. 2001).
Kinamore can establish a prima facie case of disparate treatment because of her race if she demonstrates that (1) she was a member of a protected class; (2) she was qualified for the relevant position; (3) she suffered an adverse employment action; and (4) a similarly-situated, non-protected individual was treated more favorably. Gray, 263 F.3d at 598; Logan, 259 F.3d at 567. Kinamore fails to establish a prima facie case for any of EPB's actions within the limitations period.
Hosea Pierce's use of profanity and cigarette smoking is not an adverse employment action. Moreover, Kinamore admitted that this behavior occurred in front of both black and white employees. She fails to establish a prima facie case on this ground.
Regardless of whether the custodial work that Kinamore was required to do can be deemed an adverse employment action, Kinamore cannot show that a similarly-situated, non-protected individual was treated more favorably. Kinamore's co-worker, Jay Willard, a white male, was also required to do the Christmas window clean up. Furthermore, Jay Willard also received a counseling statement relating to the incident. That Hosea Pierce required both white and black employees to assist him in the clean up demonstrates that his actions were not motivated by Kinamore's race.
Similarly, whether Kinamore's cross-training at the Information Desk is an adverse employment action is irrelevant because she cannot show that a similarly-situated, non-protected individual was treated more favorably. Jerry Draper, a white male and Customer Relations employee, was also required to cross-train at the Information Desk.
Kinamore further complains that the negative evaluation she received on May 5, 2000, is an act of racial discrimination and retaliation. However, Kinamore has not offered any proof to suggest a racial animus for this negative evaluation. The proof shows that Kinamore has a history of positive evaluations at EPB; even Hosea Pierce issued a positive evaluation in 1999. In the negative evaluation, Hosea Pierce identified specific reasons for the unfavorable evaluation. Kinamore disputed these reasons in her rebuttal to the evaluation. However, other than her bare assertions, Kinamore has not established a discriminatory or retaliatory act because of her race.
In her complaint, Kinamore has specified two allegedly discriminatory and retaliatory acts that occurred after she filed her charge of discrimination with the EEOC: (1) receiving a suspension for the damage to the Louie costume in August 2000; and (2) being constructively discharged in December 2000. As a general rule, a plaintiff must raise claims of discrimination in an EEOC or THRC charge prior to raising them in court. The Court can consider allegations of retaliation that arise as a result of the original EEOC charge. Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 254 (6th Cir. 1998). Additionally, "where facts related with respect to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim." Duggins v. Steak `N Shake, Inc., 195 F.3d 828, 832 (6th Cir. 1999) (quoting Davis v. Sodexho, Cumberland College Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998)). However, the Court need not decide if Kinamore has properly raised claims arising after she filed her EEOC charge. For the reasons expressed below, Kinamore cannot sustain the claims on the merits.
Kinamore claims she was subjected to discrimination when she suffered a three-day suspension in August 2000. Kinamore has not offered proof that shows that a similarly-situated, non-protected individual was treated more favorably than she. Assuming arguendo that Kinamore could establish a prima facie case of discrimination, EPB has proffered a legitimate, non-discriminatory reason for the suspension. After a thorough investigation, EPB concluded that Kinamore caused the damage to the Louie costume and that she had not attempted to make repairs. This carelessness with EPB property led Kinamore's supervisors to issue the suspension. With photographic proof of the damage and statements by Sophia Lansden and others, EPB had a legitimate basis for suspending Kinamore. By merely asserting that she did not cause the damage, Kinamore does not demonstrate that EPB's asserted reason is a pretext for discrimination. The Court concludes that Kinamore cannot carry her burden of proof.
Kinamore's allegations of constructive discharge as a basis for a discrimination claim also cannot be sustained. A plaintiff may establish an adverse employment action by demonstrating that she was constructively discharged. To demonstrate a constructive discharge, the plaintiff must show that (1) the employer deliberately created intolerable working conditions as perceived by the reasonable person; and (2) the employer did so with the intent to force the plaintiff to quit. Logan v. Denny's, Inc., 259 F.3d 558, 568-69 (6th Cir. 2001). Factors to be considered in evaluating the first prong include:
(1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement or continued employment on terms less favorable than the employee's former status.
Logan, 259 F.3d at 569. Kinamore's complaints simply do not rise to the level of a constructive discharge. She complains of being assigned to custodial work and, in general, being harassed and humiliated by her supervisor. However, the actions by her supervisor, Hosea Pierce, did not make working conditions "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 887 (6th Cir. 1996).
Additionally, there is no proof that EPB's actions were motivated by a discriminatory intent. Kinamore was asked to clean up the Christmas displays as were other employees. She received a negative evaluation after this incident that did not result in a demotion or reduction in salary. EPB issued appropriate discipline after an investigation established that Kinamore damaged EPB property. The suspension was the final incident complained of and it occurred approximately four months prior to EPB receiving Kinamore's letter of resignation. The Court concludes that Kinamore has not established a prima facie case of constructive discharge.
In summary, Kinamore's claims of disparate treatment under Title VII, § 1981, and the THRA are DISMISSED.
C. Hostile Work Environment
Kinamore also asserts that EPB subjected her to a hostile work environment because of her race. To establish a prima facie case of a hostile work environment, plaintiff must prove that (1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment was based upon her protected classification; (4) the harassment unreasonably interfered with his work performance by creating an intimidating or offensive work environment; and (5) the existence of employer liability. Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999). EPB contends that Kinamore cannot establish a prima facie case of hostile work environment.
EPB specifically disputes that Kinamore was subjected to any harassment based on race and that the alleged hostile conduct was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). The record shows that Kinamore was subjected to treatment similar to that experienced by her co-workers. Her co-workers were exposed to Hosea Pierce's profane language and cigarette smoking, were asked to do custodial work, were counseled for infractions, and were cross-trained in other departments. The other actions of which Kinamore complains do not include racial comments, abusive language, or other conduct that can be construed as a hostile work environment because of race. There is no evidence of an objective hostile environment. Accordingly, Kinamore's hostile environment claim is DISMISSED.
This "severe and pervasive" analysis falls under the fourth element of a hostile work environment claim. Abeita v. Transamerica Mailings, Inc., 159 F.3d 246, 251 n. 5 (6th Cir. 1998).
D. Retaliation
Kinamore also asserts claims of retaliation under Title VII, § 1981, and the THRA. The gist of Kinamore's retaliation claim is that all of EPB's actions are in retaliation for her complaint to Harold DePriest in 1996 that she felt discriminated against when the duty of preparing the activities report was reassigned to another employee. Even if this claim is not barred by the statute of limitations, Kinamore's retaliation claim fails on the merits.
To establish prima facie case of retaliation, a plaintiff must prove that (1) she engaged in activity protected by Title VII; (2) this exercise of protected rights was known to the employer; (3) EPB thereafter took employment action adverse to Kinamore; and (4) the protected activity and the adverse employment action were causally connected. Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999). Although the burden of establishing this prima facie case is not arduous, Allen v. Michigan Dep't of Corrections, 165 F.3d 405, 413 (6th Cir. 1999), Kinamore has failed to meet her burden.
Kinamore does not attempt to establish the elements of a prima facie case; instead, she states in conclusory language that genuine issues of material fact exist as to whether the retaliation occurred. The record holds no proof that the supervisors who took the allegedly adverse employment actions against Kinamore had any knowledge of her original complaint to Harold DePriest. Harold DePriest asserted that he did not inform Kinamore's supervisors about the complaint. Kinamore concedes that she does not know whether Harold DePriest informed her supervisors about her complaint. Without employer knowledge of the protected activity, there can be no causal connection. As such, Kinamore cannot establish a prima facie case of retaliation. Kinamore's claims of retaliation are DISMISSED.
E. Retaliatory Discharge
Kinamore's final claim is retaliatory discharge under common law and the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304. Kinamore asserts that she suffered a retaliatory discharge as a result of reporting alleged illegal activities to Harold DePriest in 1996. Kinamore cannot establish these claims. She fails to show that EPB was engaged in illegal activities and that her constructive discharge was a result of her reporting these activities to Harold DePriest. These claims are DISMISSED.
IV. CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment [Court File No. 10] will be GRANTED. An order will enter.