Wilson v. Middle Tenn. State Univ.

• Decision Date: 23 February 2021
• Docket Number: NO. 3:19-0798,3:19-0798
• Parties: BARRY WILSON v. MIDDLE TENNESSEE STATE UNIVERSITY and THE STATE OF TENNESSEE
• Court: U.S. District Court — Middle District of Tennessee

BARRY WILSON v. MIDDLE TENNESSEE STATE UNIVERSITY and THE STATE OF TENNESSEE

NO. 3:19-0798

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

February 23, 2021

TO: Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION

This pro se case was referred to the Magistrate Judge for pretrial proceedings. See Order entered October 30, 2019 (Docket Entry No. 7). Pending before the Court is a motion for summary judgment (Docket Entry No. 38) filed by Defendants Middle Tennessee State University and the State of Tennessee. For the reasons set out below, the undersigned respectfully recommends that the motion be granted and this action be dismissed.

I. BACKGROUND

Barry Wilson ("Plaintiff") filed this lawsuit pro se and in forma pauperis on September 11, 2019, against Middle Tennessee State University ("MTSU") and the State of Tennessee (hereinafter referred to collectively as "Defendants"). Plaintiff is a former employee of MTSU, where he worked in a maintenance capacity as a Steam and Chiller Operator from 2011 until he apparently left employment at MTSU sometime in 2018 or 2019.¹ Plaintiffalleges in his lawsuit that he suffered unlawful employment discrimination while working at MTSU. See Complaint (Docket Entry No. 1). Although he brought claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5 et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), and the Americans with Disabilities Act, 42 U.S.C. §§ 12102, et seq. ("ADA"), the Court granted Defendants' early filed motion to dismiss as to all claims except for a Title VII claim for racial discrimination and a Title VII claim for retaliation. See Memorandum and Order entered August 28, 2020 (Docket Entry No. 19) at 5-8. The racial discrimination claim is based upon Plaintiff's allegation that he was not granted a reasonable accommodation for a disability but that employees of other races were granted reasonable accommodations.² The retaliation claim is based upon Plaintiff's allegation that MTSU retaliated against him because he filed a charge of discrimination in 2018 by taking actions that prevented him from using "the sick leave bank" and that caused him to lose his health insurance and retirement status.³

Defendants filed an answer, and the Court entered a scheduling order, setting out deadlines for pretrial proceedings in the case. See Answer (Docket Entry No. 21) and Scheduling Order (Docket Entry No. 24). The parties' attempt to informally settle the case wasnot successful. See Order entered October 14, 2020 (Docket Entry No. 23). Although Plaintiff has demanded a jury, a jury trial has not yet been scheduled in the case.

II. MOTION FOR SUMMARY JUDGMENT

Defendants contend that they are entitled to summary judgment under Rule 56 of the Federal Rules of Civil Procedure because Plaintiff has no evidence or proof supporting his claims. The sole argument raised by Defendant is that Plaintiff failed to respond to requests for admissions that were served upon him during discovery and that, pursuant to Rule 36(a)(3) of the Federal Rules of Civil Procedure, his failure to respond deems him to have admitted the matters at issue in the requests for admissions. Specifically, Defendants contend that Plaintiff was asked to admit or deny that:

[he] has no proof or evidence that he was racially discriminated against by Defendants when he allegedly was not granted a reasonable accommodation,

and

[he] has no proof or evidence that MTSU allegedly retaliated against him because of his 2018 EEOC Charge by taking actions that allegedly prevented him from using 'the sick bank" and that allegedly caused him to lose his health insurance and retirement status.

See Requests for Admissions Nos. 1 and 2 (Docket Entry No. 41-1) at 11. Defendants assert that Rule 36 allows ultimate facts, such as those at issue in the noted requests for admissions, to be admitted and conclusively established when a party has not responded and has not moved to withdraw or amend the party's admissions. Defendants contend that the admissions to which Plaintiff failed to respond as required by Rule 36(a)(3) conclusively establish under Rule 36(b) that Plaintiff has no proof or evidence to support his claims, that his claims lack evidentiarysupport that would permit a judgment to be rendered in Plaintiff's favor on the claims, and that Defendants are entitled to summary judgment on Plaintiff's claims. Defendants support their motion with a memorandum of law (Docket Entry No. 39), a statement of undisputed material facts ("SUMF") (Docket Entry No. 40), and the affidavit of Defendants' counsel, John W. Dalton with the pertinent request for admissions and a certified mail return receipt showing that the requests for admission were served upon Plaintiff (Docket Entry No. 41-1).

The Court advised Plaintiff of the need to respond to Defendants' motion and to Defendants' SUMF and gave him a deadline of January 4, 2021, to file a response. See Order entered December 1, 2020 (Docket Entry No. 50). The Court further summarized Defendants' argument regarding the requests for admissions and the impact under Rule 36 of Plaintiff's failure to respond or to file a motion to be granted relief from his failure to respond. Id.

Plaintiff has not filed a direct response to the motion for summary judgment and has not filed a response to Defendants' SUMF. Instead, on January 4, 2021, Plaintiff filed a "motion" in which he: (1) asserts that he is attempting to locate recordings that will help his case; (2) requests that 12 specific individuals,⁴ as well as possibly other individuals, be made available to be deposed; and, (3) asserts that he reserves "the right to add recordings, videos, and more documents and individuals at any time as my case develops." See Docket Entry No. 53.

Defendants have filed a response (Docket Entry No. 54) in opposition to Plaintiff's motion. Defendants first contend that the motion is not an actual response to the motion forsummary judgment, and they further object to the motion to the extent that it is construed as some type of request for discovery depositions.

III. STANDARD OF REVIEW

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. Federal Rule of Civil Procedure 56(a). "By its very terms, this standard provides that the mere existence of some alleged factual disputes 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). A genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Harris v. Klare, 902 F.3d 630, 634-35 (6th Cir. 2018). The Court should view the facts and draw all reasonable inferences in favor of the non-moving party. Id. Credibility judgments and weighing of evidence are improper in the stance of review of a motion for summary judgment. Hostettler v. Coll. of Wooster, 895 F.3d 844, 852 (6th Cir. 2018).

The party bringing the summary judgment motion has the initial burden of identifying portions of the record that it believes demonstrate the absence of a genuine dispute over material facts. Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 627-28 (6th Cir. 2018); Rule 56(c)(1)(A). Once the moving party has met its initial burden, the nonmoving party is not entitled to trial merely on the basis of allegations but must present evidence supporting its claims or defenses. See Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003); Goins v. Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991). The non-moving party must set forth specific facts showing that there is a genuine issue for trial. Pittman, 901 F.3d at 628.

IV. ANALYSIS

Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Additionally, Title VII's anti-retaliation provision provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Generally, the plaintiff must support a claim under Title VII with direct evidence of unlawful conduct or with circumstantial evidence that raises an inference of unlawful conduct. Johnson v. Kroger Co., 319 F.3d 858, 864-65 (6th Cir. 2003). Whatever method of proof is used, the ultimate burden is on the plaintiff to show, through a preponderance of the evidence, that the defendant engaged in unlawful conduct under Title VII. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 518 (1993).

Defendants have filed a motion that does not resemble the type of motion for summary judgment that is commonly filed in which the moving party presents evidence in an attempt to show that it acted lawfully and/or presents evidence that tends to show that a plaintiff's allegations are unfounded or that a plaintiff's evidence is insufficient to support the legal claims that are at issue. To the contrary, Defendants have not presented any affirmative evidence in theirfavor, relying instead upon what is, by operation of Rule 36, a conclusively established admission by Plaintiff that he has no proof and evidence supporting his claims.

Rule 36(a) provides that:

A matter is admitted unless, within 30 days after being served, the party to whom

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