Parker v. Zale Corp.

• Decision Date: 29 March 2012
• Docket Number: No. 2:09–CV–287.,2:09–CV–287.
• Parties: Linda PARKER, Plaintiff, v. ZALE CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

864 F.Supp.2d 670

Linda PARKER, Plaintiff,

v.ZALE CORPORATION, Defendant.

No. 2:09–CV–287.

United States District Court,

E.D. Tennessee,

Greeneville Division.

March 29, 2012.

Charlton R. Devault, Jr., Law Office of Charlton R. Devault, Jr., Kingsport, TN, for Plaintiff.

Jennifer P. Keller, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Johnson City, TN, for Defendant.

MEMORANDUM OPINION

LEON JORDAN, District Judge.

This civil action is before the court for consideration of “Defendant's Motion for Summary Judgment” [doc. 13]. Plaintiff has filed a response [doc. 25], and defendant has submitted a reply [doc. 29]. 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., for alleged discrimination, hostile work environment, and retaliation based upon her age. For the reasons that follow, the motion will be granted, and this case will be dismissed.

I.Background

Defendant ¹ operates retail jewelry stores nationally. Plaintiff is a female in her fifties who worked for defendant as a sales associate for 14 years. At the time of her termination, she was working in a store located in Johnson City, Tennessee, and the manager of that store was Terry “Steve” Ferguson.

Plaintiff states that Ferguson hired young female associates to work in the store, some of whom he dated and saw socially outside of work. She says that the younger associates were permitted to stay in the back area and off the sales floor during work hours to do homework, visit with friends, and sleep, leaving her to wait on customers.² According to plaintiff, she made more than one complaint to defendant's Human Resources (“HR”) office.

In the fall of 2008, plaintiff engaged in a merchandise return that ultimately led to her dismissal. She wanted to return a necklace that had been a gift from a boyfriend, whom she later learned was married. The return should have been put on a store gift card, but at the time the store was out of gift cards. With Ferguson's approval, plaintiff processed the return by putting the amount of the necklace on her personal debit card and signing the name of the original purchaser on the return receipt.³

According to his affidavit, in December 2008, Bryan Peek, Human Resources Representative for Zale Delaware, Inc., received a copy of an anonymous complaint from defendant's Legal Ethics Hotline alleging that plaintiff had returned jewelry on her debit card and that the customer's name was used. Peek sent the complaint to loss prevention for investigation. After the investigation he received a copy of plaintiff's statement admitting to making the return as described. After consulting with the director of human resources, who concurred with his recommendation to terminate plaintiff, the decision was made to terminate plaintiff's employment.

Plaintiff says that Keith Howlett, the loss prevention investigator, accused her of returning a necklace she had had for years and of forging the purchaser's signature. She also says that he made her rewrite her statement to admit to something. Additionally, plaintiff states that Howlett showed favoritism to young sales associates involved in loss prevention matters so they would not disciplined. These matters occurred in other of defendant's stores, not the Johnson City store where plaintiff worked.

Additionally, plaintiff states that although Ferguson said he would tell Howlett that he had approved the return, she found out from the area manager Steve Haralson that he had not told them about his approval. Haralson was involved in the investigation with Howlett.

II.Standard of Review

Defendant's motion is brought pursuant to Federal Rule of Civil Procedure 56, which governs summary judgment.⁴Rule 56(a) sets forth the standard for 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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)).

In order to defeat the 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505. The court determines whether the evidence requires submission to a jury or whether one party must prevail as a matter of law because the issue is so one-sided. Id. at 251–52, 106 S.Ct. 2505.

III.AnalysisHearsay Objections

In its reply in support of its motion for summary judgment, defendant identified multiple paragraphs in plaintiff's affidavit and in the affidavit of Denice Osborne that according to defendant contain “inadmissible hearsay testimony, descriptions of events of which [the affiant] has no personal knowledge, and opinions of layperson.” Plaintiff initially made no effort to respond to defendant's specific arguments, which under the circumstances would have been appropriate and permitted by the court.

Anticipating a hearsay problem with the affidavits, plaintiff included in a footnote her response to the motion for summary judgment, which states the following:

The plaintiff insists that the statements of Meaghan Roberts and Tona Miller regarding their actions and Manager Ferguson's comments are admissible as evidence of the young ladies' then existing mental or emotional conditions, motives, or intent under FRE # (sic) 803(3) and FRE # (sic) 404(b) and as the statements of co-conspirators with Manager Ferguson under FRE # (sic) 801(d)(2)(E).

It is apparent to the court, however, the most if not all of the statements are needed by the plaintiff for the truth of the matter asserted. Therefore, the court by order [doc. 30] gave plaintiff the opportunity to respond to the hearsay objections, which she timely did [doc. 32]. Defendant timely submitted its response [doc. 33]. The court will address the substance of the hearsay objections to the extent necessary to rule on the issues presently before the court.

Age Discrimination

Plaintiff's claim for age discrimination is brought pursuant to the THRA, “a ‘comprehensive anti-discrimination law,’ which is ‘intended to further the policies embodied in the similar federal laws against employment discrimination.’ ” Johnson v. Collins & Aikman Auto. Interiors, Inc., No. 1:02–CV–365, 2004 WL 1854171, at *3 (E.D.Tenn. Feb. 26, 2004). The statute provides in relevant part that it is a discriminatory practice for an employer to “[f]ail or refuse to hire or discharge any person or otherwise to discriminate against an individual with respect to compensation, terms, conditions or privileges of employment because of such individual's race, creed, color, religion, sex, age or national origin.” Tenn.Code Ann. § 4–21–401(a)(1). The Age Discrimination in Employment Act (“ADEA”) “prohibits employers from discriminating ‘against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” Bender v. Hecht's Dept. Stores, 455 F.3d 612, 620 (6th Cir.2006) (citing 29 U.S.C. § 623(a)).

The stated purpose of the THRA is to “[p]rovide for execution within Tennessee of the policies embodied in the federal Civil Rights Acts of 1964 ... and the Age Discrimination in Employment Act of 1967....” Tenn.Code Ann. § 4–21–101(a)(1). Thus, courts “apply the same analysis to age-discrimination claims brought under the THRA as those brought under the ADEA.” Bender, 455 F.3d at 620;see also Dennis v. White Way Cleaners, L.P., 119 S.W.3d 688, 693 (Tenn.Ct.App.2003) (“Because of the commonality of purpose between the Tennessee Human Rights Act and the federal statutes, we may look to federal law for guidance in enforcing our own anti-discrimination laws.” (internal quotation marks and citations omitted)). Therefore, under both the THRA and the ADEA, plaintiff “must prove by a preponderance of the evidence ... that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009); see also Harris v. Metro. Gov't of Nashville & Davidson Cnty, 594 F.3d 476, 485 (6th Cir.2010).

In order to establish a prima facie case of age discrimination, a plaintiff must demonstrate that “(1) he is a member of the protected class, that is, he is at least forty years of age; (2) he was subjected to an adverse employment action; (3) he was qualified for the position; and (4) he was treated differently from similarly situated employees outside the protected class.” ⁵Briggs v. Potter, 463 F.3d 507, 514 (6th Cir.2006) (quoting Mitchell v. Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir.20...