Sears v. Jo-Ann Stores, Inc.

• Decision Date: 25 April 2014
• Docket Number: No. 3:12-1322,3:12-1322
• Parties: ANNE A. SEARS v. JO-ANN STORES, INC.
• Court: U.S. District Court — Middle District of Tennessee

ANNE A. SEARS v. JO-ANN STORES, INC.

No. 3:12-1322

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

Dated: April 25, 2014

TO: Honorable Kevin H. Sharp, District Judge

REPORT AND RECOMMENDATION

By Order entered January 31, 2013 (Docket Entry No. 9), this action was referred to the Magistrate Judge for management of the case, to dispose or recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further proceedings, if necessary, under Rule 72(b) of the Federal Rules of Civil Procedure and the Local Rules of Court.

Presently pending before the Court is the Defendant's motion for summary judgment (Docket Entry No. 36), to which the plaintiff has responded in opposition. See Docket Entry Nos. 42-43. Set out below is the Court's recommendation for disposition of the motion.

I. BACKGROUND

The plaintiff is employed by Jo-Ann Stores, LLC ("Jo-Ann"), as a part-time retail employee in Jo-Ann's Cool Springs store located in Williamson County, Tennessee. She has been continuously employed at Jo-Ann since 2006. On March 11, 2011, she filed a charge of discrimination ("Charge") against Jo-Ann with the Tennessee Human Rights Commission alleging that she was being discriminated against based on her race, national origin, age, religion, and creed. See Docket Entry No. 39-3. The Charge contained checkmarked boxes asserting that the alleged discrimination took the form of "harassed/intimidated," "retaliated against," "demoted," "failure to hire," "failure to promote," "denied benefits (leave, insurance, etc.)," and "denied religiousaccommodation," and included a single page narrative of events that had occurred. Id. On September 21, 2012, the U.S. Equal Employment Opportunity Commission ("EEOC") issued the plaintiff a right-to-sue letter after finding that the information she had provided did not support her allegations of discrimination. See Docket Entry No. 8-1, at 1.

On December 26, 2012, the plaintiff filed the instant action against Jo-Ann under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), and under Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a ("Title I"). The plaintiff asserts that the action was brought "to correct unlawful employment practices based on religion, age, race, and ethnic origin, and to provide appropriate relief." See Complaint (Docket Entry No. 1), at 1. She alleges that:

[Jo-Ann] knowingly and intentionally subjected [her] to both slanderous and libelous comments regarding her work, competence, efficiency, professionalism and veracity, and implemented and conducted malicious practices which were designed and resulted in denying career advancement and promotions to [her]. Further, [she] alleges that when she objected to such treatment, [Jo-Ann] retaliated by slashing her hours and subjecting her to hyper vigilance and scrutiny and inequitable application of company rules resulting in write ups which other associates have not and would not have received.

Id.

The plaintiff alleges that her informal requests to not work on Sundays were ignored until she filled out a formal written request, despite the fact that informal requests are routinely approved for other employees and, further, that she was scheduled for fewer and less desirable work hours after making the formal request to not work on Sundays. Id. at 3-4. The plaintiff also alleges that she has received undeserved disciplinary write-ups, has been treated unfairly compared to other employees, and has been disparaged by her managers. Id. at 4-7. With respect to advancement opportunities at Jo-Ann, the plaintiff alleges that she has been excluded from interviewing for promotions or other open positions within Jo-Ann because of the disciplinary write-ups, id. at 4-5, and "has been denied or failed to be informed of any and all promotional opportunities and is still a part time employee." Id. at 7. According to the plaintiff:

the unlawful employment discrimination stems from the fact that she is an evangelical Christian. The hostility toward [her] began when it was discovered that she did not work on Sundays.

In the alternative, [she] has very curly hair and has been asked numerous times what her ethnic back ground was. One customer described [her] hair as "nappy."

In the alternative, [she] is a 54 year old woman who has had her hours cut and altered, once again, by new hires, all of whom are under the age of 40. [She] discovered over two years ago that a copy of her I-9 passport photo had been left in her employee file at the store.

Id. at 7-8.

Upon the Defendant's filing an answer (Docket Entry No. 14), a scheduling order (Docket Entry No. 15) was entered setting out deadlines for pretrial activity in the action. By Order entered June 17, 2013 (Docket Entry No. 21), the action was stayed upon the motion of the plaintiff because of her medical issues. By Orders entered September 27, 2013 (Docket Entry Nos. 26 and 27), respectively, the stay was lifted and a revised scheduling order was entered.

II. MOTION FOR SUMMARY JUDGMENT

The Defendant contends that it is entitled to summary judgment as a matter of law on all claims raised by the plaintiff. The Defendant asserts that Title I does not provide for a private cause of action and that the plaintiff failed to plead in her complaint that she was pursuing a statutory claim under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq. ( "ADEA") despite setting out specific statutory bases for her other claims. The Defendant further contends that the applicable statute of limitations bars any Title VII claims based on events occurring more than 300 days prior to the March 11, 2011, Charge, that the plaintiff's Title VII claims of discrimination and retaliation and her claim for defamation, as well as an age discrimination claim if it had been properly pled, are not supported by an evidentiary basis. The Defendant supports its motion with a Statement of Undisputed Material Facts (Docket Entry No. 38), excerpts from the plaintiff's deposition (Docket Entry No. 39-1), the plaintiff's written discovery responses (Docket Entry No. 39-2), documents attached to and in response to the plaintiff's Charge (Docket Entry Nos. 39-3and 39-4), and the sworn declarations and attached exhibits of Charles McElhannon (Docket Entry No. 40) and Kathy Scadden (Docket Entry No. 41).

In response to the motion for summary judgment, the plaintiff contends that: 1) consideration of the Defendant's motion should be stayed as premature until the completion of discovery and until a ruling on her pending motion to compel discovery (Docket Entry No. 31); 2) that factual disputes exist as evidenced and supported by her affidavit; and 3) that the excerpts from her deposition should be stricken because the full deposition was not provided. See Docket Entry No. 42. The only evidentiary support for the plaintiff's response is her unsworn "Affidavit." See Docket Entry No. 43, at 7-30. As part of her response, the plaintiff also moves for leave to file an amended complaint. See Docket Entry No. 46.

III. STANDARD OF REVIEW

A motion for summary judgment is reviewed under the standard that summary judgment is appropriate 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." Rule 56(a) of the Federal Rules of Civil Procedure. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A "genuine issue of material fact" is a fact which, if proven at trial, could lead a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering whether summary judgment is appropriate, the Court must "look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial." Sowards v. Loudon Cnty., 203 F.3d 426, 431 (6th Cir.), cert. denied, 531 U.S. 875, 121 S.Ct. 179, 148 L.Ed.2d 123 (2000). In reviewing a motion for summary judgment, the Court must view the evidence and all inferences drawn from underlying facts "in the light most favorable to the party opposing the motion." See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir.), cert. denied, 534 U.S. 896, 122 S.Ct. 217, 151 L.Ed.2d 155 (2001).

The moving party has the burden of showing the absence of genuine factual disputes from which a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 249-50. However, "[t]he moving party need not support its motion with evidence disproving the non-moving party's claim, but need only show that 'there is an absence of evidence to support the non-moving party's case.'" Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. 2001) (quoting Celotex Corp., 477 U.S. at 325).

"Once the moving party has presented evidence sufficient to support a motion for summary judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant probative evidence must be presented to support the complaint." Goins v. Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991). The party opposing the motion for summary judgment may not rely solely on the pleadings but must present evidence supporting the claims asserted by the party. Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003). Moreover, conclusory allegations, speculation, and unsubstantiated assertions are not evidence, and are not sufficient to defeat a well-supported motion for summary judgment. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). In other words, to defeat summary judgment, the party opposing the motion must present affirmative evidence to support his or her position; a mere "scintilla of...