Mitch GOREE, et al. v. UNITED PARCEL SERVICE, INC.
Court of Appeals of Tennessee, AT JACKSON.
October 8, 2015
Application for Permission to Appeal Denied by Supreme Court March 23, 2016.
August 11, 2015 Session
490 S.W.3d 413
Andrew C. Clarke, Memphis, Tennessee, and Luther O. Sutter, Benton, Arkansas, for the Appellees/Cross-Appellants, Mitch Goree and James Wherry.
OPINION
BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.
This appeal involves two employees’ claims of racial discrimination and retaliation pursuant to the Tennessee Human Rights Act,
I. FACTS & PROCEDURAL HISTORY
Plaintiffs Mitch Goree and James Wherry are long-time employees of United Parcel Service, Inc. (“UPS“). Both are black males. Goree began working for UPS in 1982. After several promotions, he achieved the title of business manager in 2000. A business manager is responsible for everything that goes on in a particular business unit or location and oversees the package preload employees, drivers, and supervisors. After failing a safety audit, Goree was demoted from his position as business manager in 2004. In 2005, Goree filed a lawsuit against UPS alleging racial discrimination, but his suit was eventually dismissed. For the next several years, Goree continued to work as a supervisor at various facilities in Memphis.
Plaintiff James Wherry began working for UPS around 1983. Wherry was pro-
In 2010, a business manager position became vacant at the Walnut Grove package center in Memphis. Wherry had known Goree for about twenty years and asked him to serve as “acting” business manager until the vacant position was filled. Goree agreed and began serving as acting business manager at Walnut Grove.1 Around this time, Wherry suggested to his superior, Midsouth district operations manager James Buchanan, that Goree should be promoted to the business manager position on a full-time basis. In August 2010, Goree, Wherry, and Buchanan (also a black male) met for lunch at a restaurant and discussed the vacant business manager position. According to Goree, Buchanan said that he was going to submit the necessary paperwork to promote Goree and that he should expect to be promoted in a couple of weeks. Goree left the meeting believing that he had been promoted and informed his wife that he would be receiving a substantial raise. He also told several fellow employees that he was getting the job.
On October 4, 2010, Buchanan called a meeting at the Walnut Grove package center and announced to all of the employees that the vacant business manager position would be filled by Brian Riley, a white male, who was transferring from another facility. Goree was embarrassed and humiliated and left work immediately. He took “stress leave” and sought counseling before eventually returning to work six months later.
In the meantime, on January 19, 2011, two black employees at the Bartlett package center complained to their business manager that a white employee used “the n-word” with them in reference to Martin Luther King, Jr. Day. The business manager immediately called Wherry and asked him to come to Bartlett. Wherry suggested that they discuss the incident at a regularly scheduled division meeting the next day. The business manager arrived late to the division meeting the following morning and handed written statements to Wherry describing the incident. Wherry placed the statements in his planner and forgot about them. The following week, on Friday, January 28, Wherry received two more complaints about the same employee who used the racial slur in reference to Martin Luther King, Jr. Day. That evening, Wherry called the security department and directed the security supervisor to go to Bartlett the following Monday, January 31, to investigate. After an investigation, the employee received formal notice of his discharge on Monday, February 7. However, the collective bargaining agreement between UPS and the teamsters’ union provides that UPS must provide the union and the affected employee with a copy of any discharge letter “within ten (10) working days from the day of management‘s knowledge of the infraction.” The discharged employee filed a grievance with the union and was returned to work after a settlement for a time-served suspension.
Wherry was summoned to Nashville to meet with the Midsouth district Human Resources manager and the regional security manager on or about March 3, 2011, in connection with the investigation of the missed ten-day deadline. After an interview and further investigation, Wherry was demoted from the position of division manager to business manager on or about March 10, 2011, allegedly because of his delay in responding to the incident that occurred on Martin Luther King, Jr. Day. The decision to demote Wherry was made by the regional HR manager and the Midsouth district HR manager, both black males, in consultation with in-house counsel and subject to the ultimate approval of district president Harms, a white male.
Goree and Wherry filed this lawsuit against UPS on June 30, 2011, alleging racial discrimination and retaliation for protected activity pursuant to the Tennessee Human Rights Act,
A five-day jury trial was held in January 2014. UPS filed a motion for directed verdict at the close of Plaintiffs’ proof and renewed its motion at the close of all the proof, but the motions were denied. The jury ultimately found that both Plaintiffs had proven by a preponderance of the evidence “all of the elements” of their claims for racial discrimination and retaliation for protected activity. The jury awarded Goree (who was not promoted) $600,000 for back pay and benefits and $2,000,000 in compensatory damages. The jury awarded Wherry (who was demoted) $1,042,000 in back pay and benefits and $1,000,000 in compensatory damages. After the verdict, UPS filed a motion for judgment in accordance with its previous motion for directed verdict, or in the alternative, for a new trial and/or remittitur of the jury verdict. The trial judge denied the motion for judgment in accordance
II. ISSUES PRESENTED
UPS presents the following issues for review on appeal:
- Whether Goree failed to establish, as a matter of law, his claims for discrimination and retaliation under the Tennessee Human Rights Act where:
- Goree‘s supervisor, Wherry, admitted Goree was not “Ready Now” for promotion;
- Goree admitted and UPS confirmed that no employee was promoted to the Walnut Grove Package Center Business Manager position he sought;
- Goree admitted and UPS confirmed that Brian Riley was already a Business Manager when he transferred to Walnut Grove;
- the UPS decisionmakers involved in the decision to transfer Riley had no knowledge of Goree‘s 2005 lawsuit against UPS at the time they made the transfer decision; and
- Goree offered no evidence the decision to transfer Riley was in any way related to his race or to his 2005 lawsuit against UPS.
- Whether Wherry failed to establish, as a matter of law, his claims for discrimination and retaliation under the Tennessee Human Rights Act where:
- Wherry failed to act timely on a complaint of the use of a racial slur against two African American employees;
- Wherry knew he had to take action within ten working days of learning of the complaint in order to discipline the individual responsible;
- Wherry admitted he never read the written complaints provided by the employees to whom the “n” word was used;
- Wherry‘s delay and failure to communicate within the ten days prevented UPS from disciplining the individual responsible under the collective bargaining agreement;
- Wherry offered no evidence of similarly-situated individuals who engaged in the same or similar conduct but were not disciplined;
- the individual who made the decision to demote Wherry was in the same protected category;
- Wherry was replaced by someone in the same protected category; and
- Wherry did not engage in any protected activity prior to the decision to demote him.
- Whether the Trial Court committed reversible error when it declined to instruct the jury on the proper “but for” standard for retaliation claims as enunciated by the United States Supreme Court in University of Texas Southwestern Medical Center v. Nassar, — U.S. —, 133 S.Ct. 2517 [186 L.Ed.2d 503] (2013).
- Whether the Trial Court committed reversible error when it improperly lim-
ited UPS‘s proposed jury instruction on the business judgment rule, thus allowing the jury to substitute its own judgment for that of UPS‘s.
Additionally, Plaintiffs raise the following issue in their posture as appellees:
- Whether the trial court erred in reducing the jury‘s verdict.
For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.
III. DISCUSSION
The Tennessee Human Rights Act (“THRA“),
A. Goree‘s claim for racial discrimination for failure to promote
Disparate treatment cases of discrimination occur “where an employer has treated a particular person less favorably than others because of a protected trait.” Maddox v. Tenn. Student Assistance Corp., No. M2009-02171-COA-R3-CV, 2010 WL 2943279, at *6 (Tenn.Ct.App. July 27, 2010) (quoting Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2672, 174 L.Ed.2d 490 (2009)). “A plaintiff asserting a claim of disparate treatment, or intentional discrimination based on race, can proceed to trial either by offering direct evidence that the employer‘s action was motivated by race, or by presenting circumstantial evidence sufficient to raise an inference of discrimination.” Paschall v. Henry Cnty. Bd. of Educ., No. W1999-0070-COA-R3-CV, 2000 WL 33774557, at *4 (Tenn. Ct.App. June 2, 2000). The direct evidence and circumstantial evidence methods are mutually exclusive; “a plaintiff need only prove one or the other, not both.” Id. Direct evidence of intentional discrimination may include an acknowledgment by the employer of discriminatory intent. Id. at *4 (citing Spann v. Abraham, 36 S.W.3d 452, 464 (Tenn.Ct.App.1999)). It can include conduct or statements by persons involved in the decision-making process. Wilson v. Rubin, 104 S.W.3d 39, 49 (Tenn.Ct.App.2002). However, because direct evidence of an employer‘s discriminatory intent is seldom available, most plaintiffs proceed by offering circumstantial evidence that creates an inference of discrimination, utilizing the shifting burden of production framework developed by the United States Supreme
Using the indirect method, a plaintiff may establish a prima facie case of employment discrimination based on a failure to promote by proving by a preponderance of the evidence (1) that he is a member of a protected class, (2) that he applied and was qualified for a position for which the employer was seeking applicants, (3) that he was subjected to adverse employment action, i.e., denied the promotion, and (4) the rejection occurred under circumstances giving rise to an inference of unlawful discrimination, in that his failure to be promoted was more likely than not based on consideration of impermissible factors. Marpaka v. Hefner, 289 S.W.3d 308, 313 (Tenn.Ct.App.2008); Bryant v. Tenn. Conference of United Methodist Church, No. M2000-01797-COA-R3-CV, 2002 WL 661937, at *4 (Tenn.Ct.App. Apr. 23, 2002); Silpacharin v. Metro. Gov‘t of Nashville & Davidson Cnty., 797 S.W.2d 625, 629 (Tenn.Ct.App.1990). “A prima facie case under McDonnell Douglas raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). However, a prima facie showing under McDonnell Douglas “is not the equivalent of a factual finding of discrimination.” Id. at 579, 98 S.Ct. 2943.3 If the plaintiff establishes a prima facie case, the burden shifts to the defendant to produce evidence that one or more legitimate, nondiscriminatory reasons existed for the challenged employment action.
At the outset, we must address Plaintiffs’ argument on appeal that “the elements of a prima facie case are irrelevant” because we are reviewing a jury verdict, and we must focus, instead, on the ultimate issue of discriminatory intent. Plaintiffs rely on United States Postal Service Board of Governors v. Aikens, in which the Court stated that when an employer “fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff‘s proof by offering evidence of the reason for the plaintiff‘s rejection,” the McDonnell Douglas presumption “drops from the case,” and the fact finder must decide the ultimate issue of whether the defendant intentionally discriminated against the plaintiff. U.S. Postal Svc. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). However, this does not mean that we never review the evidence regarding the plaintiff‘s prima facie case after a jury verdict. In a
A verdict should not be directed either during or after trial “except where a reasonable mind could draw but one conclusion” as to the correct verdict. Mercer, 134 S.W.3d at 131. Basically, a motion for judgment in accordance with a motion for directed verdict “is the procedural device whereby the trial court substitutes its judgment for the jury‘s verdict to the contrary.” Payne, 467 S.W.3d at 437 (quoting 4 Nancy Fraas MacLean, Tennessee Practice: Rules of Civil Procedure Annotated § 50:4-50:5 author‘s cmts. (Thomson/West 4th ed.2005-2006)). “Such a judgment is based upon the opinion of the trial judge that, notwithstanding the pronouncement of the jury, the case did not sufficiently raise any issue which required jury determination.” Id. A directed verdict is appropriate “if there is no material evidence in the record that would support a verdict for the plaintiff[.]” Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 647 (Tenn.1995) (quoting Williams v. Brown, 860 S.W.2d 854, 857 (Tenn.1993)). “To avoid a directed verdict under
In sum, a defendant asserting that a trial court should have directed a verdict in its favor must convince the appellate court that reasonable minds can reach only one conclusion, even after taking the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable inferences in the plaintiff‘s favor, and disregarding the contrary evidence. Flynn v. Shoney‘s, Inc., 850 S.W.2d 458, 459-60 (Tenn.Ct.App.1992). We must decide “whether the record contains any material evidence supporting the essentials of the cause of action alleged.” Conatser, 920 S.W.2d at 647.
UPS alternatively argues that the jury‘s verdict was unsupported by material evidence. Our supreme court recently summarized our standard of review of a jury verdict as follows:
In reviewing the sufficiency of a civil jury verdict, we will set aside findings of fact by a jury “only if there is no material evidence to support the verdict.” Tenn. R.App. P. 13(d); see also Wilson v. Americare Sys., Inc., 397 S.W.3d 552, 558 (Tenn.2013). To determine whether there is such material evidence, we “(1) take the strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all evidence that supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard all [countervailing] evidence.” Creech v. Addington, 281 S.W.3d 363, 372 (Tenn.2009) (alteration in original) (quoting Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704 (Tenn.2000) (internal quotation marks omitted)), abrogated by Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn. 2010). We do not re-weigh the evidence, Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 532 (Tenn.2008), and do not recalibrate the jury‘s preponderance of the evidence assessment, Barnes, 48 S.W.3d at 704. The credibility of witnesses is the province of the jury, not appellate courts. See, e.g., State v. Flake, 88 S.W.3d 540, 554 (Tenn.2002) (“Questions concerning the credibility of witnesses, the weight and value of the evidence, as well as all factual disputes raised by the evidence, are for the trier of fact; appellate courts do not reweigh the evidence or reevaluate credibility determinations.“); Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn.1994).
Ferguson v. Middle Tenn. State Univ., 451 S.W.3d 375, 380 (Tenn.2014).
Keeping these principles in mind, we consider the evidence presented at trial regarding whether Goree suffered an adverse employment action. The position of business manager at Walnut Grove became vacant in early 2010. Wherry (the division manager) asked Goree to fill in as acting business manager. Goree testified that Buchanan (the operations manager) promised to promote him during their lunch meeting in August 2010. In October 2010, Buchanan announced to the Walnut Grove employees that the business manager position would be filled by Brian Riley, a white male who was transferring from a UPS facility in Tullahoma, Tennessee. Before working in Tullahoma, Riley had worked as a supervisor at Walnut Grove, but he was transferred to the Tullahoma facility six to eight months before he was
In response, Plaintiffs do not address the cases cited by UPS or the legal validity of UPS‘s position regarding lateral transfers. Instead, they claim that, in any event, they presented material evidence to support a finding that Riley did not actually hold the title of business manager at Tullahoma, and he was promoted to the position of business manager at Walnut Grove. Even though Goree and Wherry testified unequivocally that Riley was promoted to business manager when he was transferred to Tullahoma, and this fact was confirmed by numerous other UPS employees who testified at trial, one witness testified to the contrary. Plaintiff presented the videotaped deposition testimony of former UPS employee James Buchanan, who served as the Midsouth district operations manager during the period in question and allegedly promised the promotion to Goree during the lunch meeting. Buchanan did not testify at trial because he was no longer employed with UPS and lived in Texas. During his deposition, however, Buchanan testified that he interviewed several employees for the vacant business manager position at Walnut Grove, including Riley. He recalled Riley‘s previous transfer from Memphis to a small town and the fact that Riley “was out there running that center” and “took responsibility for that center.” However, he said, “I believe ultimately, when promotions did come up, realized [sic] we couldn‘t—couldn‘t keep him there. So he was actually an acting manager, wherever it was that I sent him.” (Emphasis added.) Buchanan did not elaborate on this statement during his deposition. However, Goree presented this deposition testimony at trial and argued that it created a factual dispute as to whether Riley was already a business manager before he was transferred to Walnut Grove or whether he received a promotion at that time. On appeal, Goree continues to argue that “[Buchanan‘s] testimony alone is sufficient to refute UPS’ arguments and provides material evidence to support the jury‘s verdict.”
Considering the procedural posture of this case and our standard of review, we agree. When considering a motion for judgment notwithstanding a verdict, we are not permitted to reweigh the evidence or to emphasize evidence that opposes the nonmovant‘s position. Walker v. CSX Transp., Inc., No. M2010-00932-COA-R3-CV, 2011 WL 578780, at *3 (Tenn.Ct.App. Feb. 16, 2011). We must disregard all evidence contrary to the nonmovant‘s position. Plunk, 92 S.W.3d at 413. “The command to ‘discard all countervailing evidence’ is designed to ‘remove any conflict in the evidence.‘” Walker, 2011 WL 578780, at *3 n. 4 (quoting Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994)). Likewise, when reviewing the sufficiency of a jury verdict, we must “assume the truth of all evidence that supports the verdict” and “discard all [countervailing] evidence.” Ferguson, 451 S.W.3d at 380. Consequently, it does not matter, for purposes of this appeal, that Buchanan‘s testimony was at odds with the remainder of the witnesses presented by UPS and even the testimony of Goree of Wherry.6 Because of Buchanan‘s testimony, a reasonable jury could draw more than one conclusion regarding whether Riley held the position of business manager at Tullahoma or whether he was promoted to the position of business manager when he transferred to Walnut Grove. As a result, UPS was not entitled to a directed verdict because of this issue, and there is material evidence to support the jury‘s implicit finding of an adverse employment action.
Next, UPS argues on appeal that Goree failed to show any connection between his race and the decision to transfer Riley. UPS claims that it decided to place Riley in the position of business manager rather than Goree for sound business reasons. UPS points to Buchanan‘s deposition testimony that he did not consider Goree to be qualified for the business manager position due to poor job performance. UPS also claims that it was financially advantageous to transfer Riley to the vacant position because he was already a business manager, and therefore, UPS avoided incurring the additional salary and benefits of promoting another supervisor to the level of business manager.
We reiterate, however, that Goree was not required to provide direct evidence of racial discrimination in order to succeed on his claim. Wilson, 104 S.W.3d at 49. Because direct evidence of discriminatory intent is seldom available, most plaintiffs proceed by offering circumstantial evidence that creates an inference of discrimination. Id. Goree could establish a prima facie case of employment discrimination by proving (1) that he is a member of a protected class, (2) that he applied and was qualified for a position for which the employer was seeking applicants, (3) that he was subjected to adverse employment action, and (4) the rejection occurred under circumstances giving rise to an inference of unlawful discrimination, in that his failure to be promoted was more likely than not based on consideration of impermissible factors. Marpaka, 289 S.W.3d at 313; Bryant, 2002 WL 661937, at *4; Silpacharin, 797 S.W.2d at 629. To establish the fourth prong, a plaintiff can show that, after his rejection, the position remained open and his employer continued to seek applicants from persons of his qualifications.7 See McDonnell Douglas, 411 U.S.
at 802, 93 S.Ct. 1817; Frame, 194 S.W.3d at 434 n. 7.Here, Goree testified that he trained Riley when Riley was promoted to supervisor at Walnut Grove in 2008, and Riley worked as a supervisor for less than two years before he was promoted to business manager in 2010. Goree had over 25 years of experience with UPS and was first promoted to supervisor in 1986. He had four years of previous experience as a business manager. In addition, the UPS business manager who oversaw both Goree and Riley when they were supervisors testified that Goree was “much more qualified” to act as business manager than Riley. Thus, we conclude that Goree established a prima facie case of employment discrimination.
Even though UPS offered legitimate, nondiscriminatory reasons for its decision to name Riley as business manager rather than Goree, the jury could reasonably conclude that the reasons given by UPS were not the true reasons for its action but were a pretext for illegal discrimination. This is especially so considering the conflict regarding whether Riley was actually promoted when he returned to fill the vacancy at Walnut Grove, contrary to UPS‘s explanation. An employee may demonstrate that his employer‘s proffered reasons are pretextual by revealing “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the employer‘s explanation. Wilson, 104 S.W.3d at 50-51. One common way to undermine the employer‘s proffered reason is to show that the stated reason has no basis in fact or is “factually false.” Versa v. Policy Studies, Inc., 45 S.W.3d 575, 581 (Tenn. Ct. App. 2000). “In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.” Frame, 194 S.W.3d at 437; see also Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (“it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer‘s explanation“); Smith v. Bridgestone/Firestone, Inc., 2 S.W.3d 197, 202 (Tenn. Ct. App. 1999) (“Once a plaintiff establishes its prima facie case, this, along with disbelief of the defendant‘s proffered reasons for the negative employment action, will permit a finding of discrimination by the factfinder.“). Once the employer‘s stated justification for the decision has been eliminated, “discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.” Reeves, 530 U.S. at 147, 120 S.Ct. 2097. If the only reason an employer offers for its decision is a lie, “the inference that the real reason was a forbidden one . . . may rationally be drawn.”8 Versa, 45 S.W.3d at 582.
Here, UPS claims that it placed Riley in the business manager position at Walnut Grove because it was financially advantageous to avoid promoting another individual, like Goree, to the level of business manager and incurring the corresponding expense of increasing his salary and benefits. If this claimed financial advantage
B. Goree‘s claim for retaliation based on failure to promote
Goree‘s retaliation claim was based on the allegation that UPS did not promote him to business manager at Walnut Grove because of his 2005 lawsuit against UPS in which he alleged racial discrimination. UPS argues that Goree failed to present sufficient evidence to sustain his claim for retaliation, and therefore, the trial court should have directed a verdict in its favor, and the jury‘s verdict is unsupported by material evidence.
The THRA prohibits retaliation against employees who oppose discriminatory practices in the workplace. Ferguson, 451 S.W.3d at 384. As relevant here, the Act provides that it is a “discriminatory practice” to retaliate or discriminate in any manner against a person because the person has made a charge, filed a complaint, or participated in any manner in any investigation, proceeding or hearing under the Act.
- that [the plaintiff] engaged in activity protected by the THRA;9
- that the exercise of [the plaintiff‘s] protected rights was known to the defendant;
- that the defendant thereafter took a materially adverse action against [the plaintiff]; and
- there was a causal connection between the protected activity and the materially adverse action.
Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 29 (Tenn. 2011) (quoting Allen v. McPhee, 240 S.W.3d 803, 820 (Tenn. 2007) abrogated on other grounds by Gossett v. Tractor Supply Co., 320 S.W.3d 777, 783-84 (Tenn. 2010)).
For his retaliation claim, Goree contends that he submitted sufficient direct evidence of retaliation to avoid reliance on the McDonnell Douglas framework. We agree. If a plaintiff submits direct evidence of discriminatory intent or retaliatory motive in a case brought under the discrimination statutes, he may use the direct method of proof to establish his case instead of the McDonnell Douglas burden-shifting framework. Williams, 465 S.W.3d at 113 n. 16 (Tenn. 2015) (citing Johnson v. Gen. Bd. of Pension & Health Benefits of United Methodist Church, 733 F.3d 722, 727-28 (7th Cir. 2013); Frye v. St. Thomas Health Servs., 227 S.W.3d 595, 609-10 (Tenn. Ct. App. 2007); Wilson, 104 S.W.3d at 49)). “The shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the ‘[employee] has his day in court despite the unavailability of direct evidence.‘” Gossett, 320 S.W.3d at 784 (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985)) (emphasis added). Accordingly, “the McDonnell Douglas test is inapplicable where the plaintiff presents
As noted above, direct evidence may include an acknowledgment by the employer of discriminatory intent. Id.; see Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998) (recognizing that direct evidence can include “evidence from the lips of the defendant proclaiming his or her . . . animus“). For example, “a corporate decision maker‘s express statement of a desire to remove employees in the protected group is direct evidence of discriminatory intent.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). Direct evidence does not require the fact finder to draw any inferences in order to conclude that unlawful discrimination or retaliation motivated the employer‘s decision. Frye, 227 S.W.3d at 609; Paschall, 2000 WL 33774557, at *4. In evaluating statements allegedly showing employer bias, courts may consider several factors, including whether the statements were (1) made by a decision maker; (2) in relation to the decision-making process; (3) proximate in time to the discriminatory act; and (4) not isolated, vague, or ambiguous. Reed v. Am. Cellular, Inc., 39 F.Supp.3d 951, 961 (M.D. Tenn. 2014) (citing Peters v. Lincoln Elec. Co., 285 F.3d 456, 478 (6th Cir. 2002)); Floyd v. Dover Elevator Co., No. 3:98-CV-648, 2000 WL 33359268, at *7 (E.D. Tenn. Mar. 24, 2000) (citing Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325 (6th Cir. 1994)). None of the factors is individually dispositive, but they should be evaluated as a whole, taking all of the circumstances into account. Reed, 39 F.Supp.3d at 961.
In the case at bar, Goree testified that he initially believed that Buchanan was the one responsible for Riley being named business manager at Walnut Grove. However, Goree said, he filed a formal complaint through the UPS grievance line after the announcement, and when discussing his grievance with an HR manager, he was told that “Buchanan was not the reason” he did not get promoted, “the district made a decision not to promote [him].” In addition, co-plaintiff Wherry testified that he had a conversation with Harms, the multi-state district president of UPS, regarding Goree‘s opportunity to receive the promotion to business manager, and during this conversation, the district president told him that “we don‘t promote guys with litigation at this company, or lawsuits basically.”10
The statement allegedly made by Harms qualifies as direct evidence of retaliation, which, if believed, requires no inference to enable a fact finder to conclude that unlawful retaliation motivated the decision to deny Goree a promotion. The statement was in direct reference to the decision making process, made by someone meaningfully involved in the process, just a few months after the decision was made, and was unambiguous.
When the plaintiff has produced direct evidence of retaliation, the burden shifts to the employer to prove by a preponderance of the evidence that it would have made the same employment decision absent the impermissible motivation. Simns v. Maxim Healthcare Servs., Inc., No. 11-1052, 2013 WL 435293, at *8 (W.D. Tenn. Feb. 4, 2013) (citing Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 382 (6th Cir. 2002)) (analyzing a THRA retaliation claim); Cunningham v. Windriver Mgmt. Grp., LLC, No. 3:10-CV-00358, 2011 WL 4449657, at *4 (M.D. Tenn. Sept. 26, 2011) (citing Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 709 (6th Cir. 2008)) (same); Ayala v. Summit Constructors, Inc., 788 F.Supp.2d 703, 715 (M.D. Tenn. 2011) (same); see also Barnes, 48 S.W.3d at 708 (Tenn. 2000) abrogated by Gossett, 320 S.W.3d at 777 (discussing the direct evidence method under the Tennessee Handicap Discrimination Act (now known as the Tennessee Disability Act)).
At this stage, we must address UPS‘s issue regarding the appropriate standard of causation for a claim of retaliation brought under the THRA. UPS argues that the proper standard was set forth in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), which involved a claim for retaliation pursuant to Title VII of the Civil Rights Act of 1964,
Both Title VII and the THRA prohibit an employer from retaliating against an employee who engages in protected activity, such as filing an employment discrimination lawsuit. In fact, one of the stated purposes of the THRA is to “[p]rovide for execution within Tennessee of the policies embodied in the federal Civil Rights Acts of 1964, 1968 and 1972[.]”
However, the Tennessee Supreme Court has repeatedly emphasized that we “are
In Nassar, the United States Supreme Court defined the proper standard of causation for Title VII retaliation claims. Nassar, 133 S.Ct. at 2524. The anti-retaliation provision of Title VII states, in relevant part:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . 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.
In a later case, the United States Supreme Court elaborated on the concept of but-for causation:
“In the usual course,” this requires proof “that the harm would not have occurred” in the absence of—that is, but for—the defendant‘s conduct.” University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. [338], [346-47], 133 S.Ct. 2517, 2525, 186 L.Ed.2d 503 (2013) (quoting Restatement of Torts § 431, Comment a (1934)). The Model Penal Code reflects this traditional understanding; it states that “[c]onduct is the cause of a result” if “it is an antecedent but for which the result in question
would not have occurred.” § 2.03(1)(a). . . . Thus, “where A shoots B, who is hit and dies, we can say that A [actually] caused B‘s death, since but for A‘s conduct B would not have died.” [1 W. LaFave, Substantive Criminal Law § 6.4(a), pp. 467-68 (2d ed.2003)] (italics omitted). The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so—if, so to speak, it was the straw that broke the camel‘s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived. See, e.g., State v. Frazier, 339 Mo. 966, 974-975, 98 S.W.2d 707, 712-713 (1936).
This but-for requirement is part of the common understanding of cause. Consider a baseball game in which the visiting team‘s leadoff batter hits a home run in the top of the first inning. If the visiting team goes on to win by a score of 1 to 0, every person competent in the English language and familiar with the American pastime would agree that the victory resulted from the home run. This is so because it is natural to say that one event is the outcome or consequence of another when the former would not have occurred but for the latter. It is beside the point that the victory also resulted from a host of other necessary causes, such as skillful pitching, the coach‘s decision to put the leadoff batter in the lineup, and the league‘s decision to schedule the game. By contrast, it makes little sense to say that an event resulted from or was the outcome of some earlier action if the action merely played a nonessential contributory role in producing the event. If the visiting team wound up winning 5 to 2 rather than 1 to 0, one would be surprised to read in the sports page that the victory resulted from the leadoff batter‘s early, non-dispositive home run.
Where there is no textual or contextual indication to the contrary, courts regularly read phrases like “results from” to require but-for causality.
Burrage v. U.S., [571] U.S. [204, 210-14], 134 S.Ct. 881, 887-88, 187 L.Ed.2d 715 (2014). Thus, “but for” causation does not require a showing of sole causation.11
The anti-retaliation provision in the THRA contains language comparable to the Title VII provision, prohibiting retaliation against an employee “because such person has opposed a practice declared discriminatory by this chapter or because such person has made a charge, filed a complaint, testified, assisted or participated in any manner in any investigation, proceeding or hearing under this chapter.”
We believe that the Tennessee Supreme Court would adopt the reasoning of Nassar and require but for causation for a retaliation claim filed pursuant to the THRA, for several reasons. The pivotal language in the anti-retaliation provision of the THRA mirrors that used in Title VII—an employer cannot retaliate “because” of an employee‘s protected activity. Our legislature intended the THRA “to be coextensive with federal law,” Parker, 2 S.W.3d at 172, and the Tennessee Supreme Court, although not bound by federal law, has, in its own words, generally interpreted the THRA “similarly, if not identically, to Title VII.” Ferguson, 451 S.W.3d at 381. “The policy of interpreting the THRA coextensively with Title VII is predicated upon a desire to maintain continuity between state and federal law.” Parker, 2 S.W.3d at 173. That goal would not be served by interpreting the identical language used in the two statutes differently.14 Ultimately, our interpretation should
Now we must address UPS‘s argument that the trial court‘s jury instruction was erroneous under Nassar. Our standard for evaluating jury instructions in civil cases is as follows:
“Whether a jury instruction is erroneous is a question of law and is therefore subject to de novo review with no presumption of correctness.” Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn. 2011) (citing Solomon v. First Am. Nat‘l Bank of Nashville, 774 S.W.2d 935, 940 (Tenn. Ct. App. 1989)). Trial courts have “a duty to impart ‘substantially accurate instructions concerning the law applicable to the matters at issue.‘” Id. (quoting Hensley v. CSX Transp., Inc., 310 S.W.3d 824, 833 (Tenn. Ct. App. 2009)). . . . In determining whether a jury instruction is substantially accurate, we review the charge in its entirety and consider it as a whole, and we will not invalidate an instruction that “fairly defines the legal issues involved in the case and does not mislead the jury.” Id. (quoting Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992)). Moreover, “[j]ury instructions are not measured against [a] standard of perfection.” Akers v. Heritage Med. Assocs., P.C., 387 S.W.3d 504, 504 (Tenn. Ct. App. 2012) (quoting City of Johnson City v. Outdoor W., Inc., 947 S.W.2d 855, 858 (Tenn. Ct. App. 1996)).
Spencer v. Norfolk Southern Ry. Co., 450 S.W.3d 507, 510 (Tenn. 2014).
At trial, UPS requested the following jury instruction:
Plaintiff Goree has the burden of proving that the decisionmaker not only knew that he had filed a prior lawsuit against the company, but he must also prove that the decisionmaker did not promote him because he filed a lawsuit in 2005. Goree must establish that his protected activity was a but-for cause of UPS‘s decision not to promote him. In other words, to establish causation, Goree must prove that but for his 2005 lawsuit, he would have been promoted.
The trial court declined to give the requested instruction, noting that it was not in accordance with the Tennessee Pattern Jury Instructions. Instead, the trial court instructed the jury as follows:
In order to establish a prima facie case of retaliation, a plaintiff must prove the following, Number 1, the plaintiff engaged in—engaged, rather, in a protected activity. Number 2, the exercise of Plaintiff‘s protected Civil Rights was known to the defendant. Number 3, the defendant thereafter took an employment action adverse to the plaintiff. And Number 4, there was a causal connection between the protected activity and the adverse employment action. . . .
The plaintiff claims that the defendant intentionally—intentionally, rather, retaliated against him and after—and because he engaged in a legally protected—protected activity by opposing discriminatory practice by the defendant. To prove and win this claim of illegal retaliation, the plaintiff must prove by a preponderance of the evidence that the defendant intentionally
took a materially adverse action against the plaintiff because of his own—because of his opposing a discriminatory practice by the defendant. The plaintiff must prove that his opposing a discriminatory practice by the defendant was a deter-mining—determining factor in the ad-verse action.
(Emphasis added.)
Taken as a whole, we conclude that these jury instructions were substantially accurate and did not mislead the jury. Notably, the jury instructions contained precisely the same language used by the THRA, explaining that Goree was required to prove that UPS took adverse action against him “because” he opposed a discriminatory practice. The jury was also informed that Goree was required to prove “a causal connection” between the adverse action and his protected activity, which was a correct statement of the law according to the most recent pronouncements of the Tennessee Supreme Court. See Ferguson, 451 S.W.3d at 382; Sykes, 343 S.W.3d at 29. Finally, although the jury instruction did not contain the phrase “but for,” it did inform the jury that Goree was required to prove that his opposition to a discriminatory practice was a “determining factor” in the adverse decision.
Other courts have held that “but for” causation can be demonstrated by showing that the employee‘s protected conduct was a determinative or determining factor in the decision. In Wright v. St. Vincent Health Systems, the Eighth Circuit explained:
To establish causation, [the employee] must prove “the desire to retaliate was the but for cause of” her termination—that is, “that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the [hospital].” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. [338, 352, 360], 133 S.Ct. 2517, 2528, 2533, 186 L.Ed.2d 503 (2013); see also Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1148 (8th Cir. 2008) (“To make out a retaliation claim, the plaintiff must show that the protected conduct was a ‘determinative—not merely a motivating—factor’ in the employer‘s adverse employment decision.” (quoting Carrington v. City of Des Moines, Iowa, 481 F.3d 1046, 1053 (8th Cir. 2007))).
Wright v. St. Vincent Health Sys., 730 F.3d 732, 737-38 (8th Cir. 2013). The court went on to say, “[i]n light of Nassar and our precedent, it is now definitively established that the determining-factor standard logically must be met in [] Title VII[] retaliation cases.” Id. at 738 n. 5. Applying Wright, several federal district courts have likewise held that a Title VII retaliation claim requires proof that the desire to retaliate was “the but for cause” of the decision, meaning that the protected activity was “a determinative—not merely a motivating—factor” in the adverse employment decision. Verby v. PayPal, Inc., No. 8:13-CV-51, 2014 WL 1689684, at *10 (D. Neb. Apr. 29, 2014); Baggett v. Barnett, No. 4:12CV00526 JLH, 2014 WL 55240, at *15 (E.D. Ark. Jan. 7, 2014); Tomlin v. Washington Univ., No. 4:11CV1871 HEA, 2013 WL 5406484, at *14 (E.D. Mo. Sept. 25, 2013); see also Smith v. Arkansas Military Dep‘t, No. 4:12-CV-727-DPM, 2014 WL 2872033, at *2 (E.D. Ark. June 24, 2014) (requiring proof that the protected activity “wasn‘t just a motivating factor, but the determining one“). The Sixth Circuit has “referred interchangeably” to the “but for” and “determining factor” concepts and found no error in a jury instruction that did not “incant[] the words ‘but for.‘” Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1334 (6th Cir. 1994); see also Morgan v. Stanley Works, 857 F.2d 1475 (6th Cir. 1988),
“In general, a trial court should give a requested jury instruction if it is supported by the evidence, embodies the party‘s theory, and is an accurate statement of the law.” Ricketts v. Robinson, 169 S.W.3d 642, 648 (Tenn. Ct. App. 2004) (citing Tallent v. Fox, 24 Tenn. App. 96, 141 S.W.2d 485, 497 (1940)). However, “[w]here the trial court fully and fairly charges the jury on the applicable law, the denial of a special request for an additional jury instruction will not be reversed on appeal.” Id. (citing Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 445 (Tenn. 1992)). Perhaps the instructions in the present case would have been more precise if they had explicitly stated that Goree was required to show that his protected activity was a “but for” cause of the adverse decision, meaning that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Nassar, 133 S.Ct. at 2533. However, the lack of such language did not cause the instructions overall to be an inaccurate statement of the law. Clearly, the jury was told to decide whether UPS made its decision “because” of Goree‘s protected activity, meaning that a “causal connection” existed, and that Goree‘s protected conduct was a “determining factor in the adverse action.” The instructions fairly defined the legal issues and provide no basis for reversal. See E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1076 (6th Cir. 2015) (finding that a retaliation instruction with “because of” and “causal connection” language sufficiently articulated the but-for causation standard required by Nassar).
Now, we must consider UPS‘s argument that the record does not contain material evidence to support the jury‘s ultimate conclusion that UPS did not promote Goree “because” he had filed a discrimination lawsuit. We conclude that the record contains sufficient evidence to support the jury verdict. As previously discussed, even though UPS claims that it had legitimate reasons for naming Riley to the business manager position at Walnut Grove rather than Goree, the jury could reasonably conclude that the reasons given
Finally, UPS argues that the trial court erred in its instruction to the jury on the business judgment rule. UPS requested the following jury instruction on this issue:
At all times, you must keep in mind that an employer is entitled to make business decisions for any reason, whether good or bad, so long as those decisions are not motivated by a race or alleged protected activity. Accordingly, UPS is entitled to make its own personnel decisions, however misguided they may appear to you, and can decide not to promote or to demote an employee for any reason that is not unlawful or for no reason at all. It is not your function as jurors to second-guess the decision UPS made with regard to Plaintiffs if those decisions were otherwise lawful. Likewise, you may not find for Plaintiffs and against UPS just because you may disagree with UPS‘s stated reasons for its decision not to promote Goree or to demote Wherry, or because you believe that those decisions were harsh or unreasonable. Instead, your function is to determine only whether, in making its decision to not promote Goree or to demote Wherry, UPS used race or Plaintiffs’ alleged protected activity to reach its decision. It is within UPS‘s business judgment to treat parties differently, especially where they engage in different behavior.
The trial court gave the first sentence of the requested instruction but declined to give the remainder, concluding that the first sentence “states your point without spinning this in UPS‘s favor.” We find no reversible error in this decision. Trial courts need not give a special instruction if its substance is already covered in the charge. Otis, 850 S.W.2d at 445 (citing Mitchell v. Smith, 779 S.W.2d 384, 390 (Tenn. Ct. App. 1989)). The court‘s instruction was substantially accurate and did not mislead the jury.
C. Goree‘s damages
Having considered and rejected each of UPS‘s challenges to the findings of liability on Goree‘s claims, we now turn to Goree‘s issues regarding damages. After finding that UPS discriminated and retaliated against Goree by denying him a promotion, the jury awarded Goree $600,000 for back pay and benefits and $2,000,000 in compensatory damages. UPS filed a mo-
The Tennessee Supreme Court explained the trial judge‘s role in assessing a jury verdict in Meals ex rel. Meals v. Ford Motor Co.:
The trial judge, charged with ensuring a fair trial, serves as an important check on a jury‘s discretion to award damages. One way the trial judge does this is by serving as the thirteenth juror. Holden v. Rannick, 682 S.W.2d 903, 904-05 (Tenn. 1984) (quoting Cumberland Tel. & Tel. Co. v. Smithwick, 112 Tenn. 463, 469, 79 S.W. 803, 804 (1904)). As thirteenth juror, the trial judge must independently weigh and review the evidence presented at trial to determine whether it preponderates in favor of the verdict and decide whether he or she agrees with and is satisfied with the jury‘s verdict. See State v. Moats, 906 S.W.2d 431, 433 (Tenn. 1995). . . . Generally, if the trial judge is not satisfied with the jury‘s verdict, the judge must set aside the verdict and order a new trial. Jones v. Idles, 114 S.W.3d 911, 914–15 (Tenn. 2003). If the trial judge‘s dissatisfaction, however, is based only upon the jury‘s award of damages, the trial judge may suggest a remittitur, which, if accepted by the plaintiff, would reduce the award to an amount the judge deems appropriate. See Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn. 1997).
Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 420 (Tenn. 2013) (footnotes omitted).
The court of appeals shall review the action of the trial court suggesting a remittitur using the standard of review provided for in
T.R.A.P. 13(d) applicable to decisions of the trial court sitting without a jury. If, in the opinion of the court of appeals, the verdict of the jury should not have been reduced, but the judgment of the trial court is correct in other respects, the case shall be reversed to that extent, and judgment shall be rendered in the court of appeals for the full amount originally awarded by the jury in the trial court.
[T]he appellate courts customarily conduct a three-step review of the trial court‘s adjustment of a jury‘s damage award. First, we examine the reasons for the trial court‘s action since adjustments are proper only when the court disagrees with the amount of the verdict. Burlison v. Rose, 701 S.W.2d 609, 611 (Tenn. 1985). Second, we examine the amount of the suggested adjustment since adjustments that “totally destroy” the jury‘s verdict are impermissible. Foster v. Amcon Int‘l, Inc., 621 S.W.2d 142, 148 (Tenn. 1981); Guess v. Maury, 726 S.W.2d 906, 913 (Tenn. Ct. App. 1986). Third, we review the proof of damages to determine whether the evidence preponderates against the trial court‘s adjustment. See
Tenn. Code Ann. § 20-10-102(b) .
Long, 797 S.W.2d at 896. On appeal, Goree does not present any argument with regard to the first two factors of the three-step analysis set forth above. In fact, he concedes that there is “no issue with the first two factors, [and] the only thing for this Court to consider is whether the evidence preponderates against the trial court‘s adjustment.”
At trial, the evidence regarding Goree‘s economic damages was sparse and scattered. However, we have pieced together the following facts from the testimony of various witnesses over the course of the five-day trial. Goree testified that he went on “stress leave” for about six months after he learned that he did not receive the promotion and said that he did not receive his salary during that time period. He estimated that his salary was around $7,100 per month. His co-plaintiff, Wherry, was asked “how happy” Goree was when he left the lunch meeting believing he had been promoted to business manager, and he responded:
He was happy. I mean, you go from a supervisor, making one amount, to a manager, making a different amount. You—you go from a supervisor getting—for instance, I‘ll just throw out a number. Let‘s say you go from a supervisor getting $7,000 extra a year to a manager getting 14,000 extra a year.
Wherry testified that as division manager, he was responsible for setting employee raises according to the budget he was given for the employees in his division, and he did so “based on merit for the most part.” Wherry was asked, “if Mr. Goree had received that position, of the business manager position, how much in stock and salary would he have gotten approximately?” Wherry responded, “Probably about twenty or twenty-five thousand more a year.” Goree‘s wife testified that Goree was 51 years old at the time of trial. Goree testified that he has no intention of leaving UPS and plans to work until he is “maybe 65 or so, 70.” He testified that his “retirement” will be “[a] lot less” if he retires as a supervisor rather than a business manager but also acknowledged that if he is successful in getting promoted to business manager or another position in the future, the numbers could be very different.
The trial judge instructed the jury, “For Plaintiff Goree‘s failure to promote claim, you may award him back pay and the present value of any lost employment benefits.” During closing arguments, Plaintiffs’ attorney asked the jury to award Goree $42,600 for the six months he missed work, $87,500 for back pay ($25,000 for his lost raise times three and a half years), and future pay of $325,000, for a total, he suggested, of $416,760.17 The
“The plaintiff bears the burden of proving damages to such a degree that, while perhaps not mathematically precise, will allow the jury to make a reasoned assessment of the plaintiff‘s injury and loss.” Meals, 417 S.W.3d at 419-20 (citing Provident Life & Accident Ins. Co. v. Globe Indem. Co., 156 Tenn. 571, 3 S.W.2d 1057, 1058 (1928); Overstreet v. Shoney‘s, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999)). When considering a retaliatory discharge case involving an employee who was terminated from her job, the Tennessee Supreme Court recognized that awards of front pay are somewhat “problematic” and “inherently speculative.” Coffey v. Fayette Tubular Prods., 929 S.W.2d 326, 331-32 (Tenn. 1996). In these types of cases, “courts are invariably faced with two issues: (1) how to compensate a plaintiff for past injuries—those occurring between the date of the discharge and the date of trial; and (2) how to compensate for future injuries—those occurring after the trial.” Id. at 331. The first issue is relatively straightforward, as back pay can be calculated as “the amount he or she would have earned during the period between the discharge and the trial.” Id. Front pay is “a monetary award intended to compensate the plaintiff for the loss of future earnings,” and because of its prospective nature, “front pay is inherently speculative.” Id. at 332. “[T]he speculative nature of the front pay remedy carries just as much potential to shortchange the plaintiff as it does to grant it a windfall.” Id. at 333. “In order to limit this speculativeness,” courts consider, among other things, “the employee‘s future in his or her old job [meaning an estimation of what the employee could have earned in the old job if the discharge had not taken place]; [and] the employee‘s work and life expectancy[.]” Id. at 332 (quoting Sasser v. Averitt Exp., Inc., 839 S.W.2d 422, 434 (Tenn. Ct. App. 1992)). We find these considerations relevant here as well.
In the case before us, the trial judge calculated Goree‘s back pay award at $125,933.33. It reduced the jury award of $600,000 to that amount in order to eliminate any award of future pay. As a result, the original award was reduced by $474,066.67. Goree argues on appeal that he presented sufficient evidence to support the jury‘s award of lost future benefits. The testimony at trial indicated that Goree intended to work at UPS for fourteen to nineteen additional years, if he worked until the age of 65 or 70. Utilizing the $25,000 yearly figure adopted by the trial court for its back pay award, this means
Finally, we turn to Goree‘s argument that the trial court erred in reducing the jury verdict for his compensatory damages from $2,000,000 to $1,100,000. “The THRA provides broad remedies to prevailing parties,” including damages for “humiliation and embarrassment.” Sneed v. City of Red Bank, Tenn., 459 S.W.3d 17, 26-27 (Tenn. 2014) (citing
At trial, Goree testified that he did not learn that Riley was being named business manager until Buchanan made the announcement at a center-wide meeting of all the employees. He had already told his wife and some co-workers that he was getting the job. When asked how embarrassed he was, Goree said, “It was pretty bad.” When asked how humiliated he was, Goree responded, “I can‘t even explain it.” Goree said he was “shocked” and “didn‘t feel anything.” He also said he was very angry at Buchanan because he had promised him the job and should have told him if he changed his mind. Goree testified that he did not sleep well and had crazy dreams. He said he was “[p]robably not pretty good” as a husband during that time. He saw doctors and psychiatrists at his wife‘s insistence and was “pretty bad” depressed. When asked if he was “medically ill,” Goree responded, “That‘s correct.”
Goree‘s wife testified that she met him in 2004, and he was happy, easy going, and liked to take trips, go to dinner, and see movies. She said he was “ecstatically happy” after his lunch with Buchanan, when he learned of the possibility that he could become business manager. She said his happiness disappeared when he came home during the middle of a work day and looked as if he had been teary or crying. She described him as “humiliated, embarrassed and completely overwhelmed” and said he became so angry at Buchanan that he got a gun and started screaming and threatening to shoot Buchanan. She testi-
Appellate courts have reviewed several jury verdicts for humiliation and embarrassment under the THRA and similar Acts. In Forbes, 1998 Tenn. App. LEXIS 340, at *13, this Court suggested that a plaintiff‘s $250,000 award for humiliation and embarrassment be remitted to $75,000, where the plaintiff testified that she experienced “a complete mental and emotional breakdown” after a demotion, suffered from insomnia and emotional scarring, sought medical treatment and was prescribed medication, but she did not offer evidence that she was receiving any long-term treatment from professionals for her humiliation and embarrassment. We also considered that the plaintiff was “merely demoted” rather than terminated. Id. at *12. In Barnes v. Goodyear Tire & Rubber Co., No. W2000-01607-COA-RM-CV, 2001 WL 568033, at *9 (Tenn. Ct. App. May 25, 2001), a case involving the Tennessee Handicap Act (now known as the Tennessee Disability Act), we affirmed a remittitur of a $150,000 award for humiliation and embarrassment to $75,000, finding the original award excessive where the employee testified that he was devastated and in a state of shock upon learning of his layoff, indicating “an overall disappointment and discomfort normally associated with losing a job,” but without aggravating injuries or circumstances. In Harris v. Dominion Bank of Middle Tennessee, No. 01A01-9609-CH-00444, 1997 WL 273953, at *4 (Tenn. Ct. App. May 23, 1997), this Court suggested a remittitur of a $100,000 award for humiliation and embarrassment to $20,000, where the discharged employee testified his termination was “pretty humiliating” and scary financially, and he did not want to be seen in public, but he did not have aggravated injuries or problems sleeping. We concluded that “the discomfort he felt was the same anyone would feel over losing a job.” Id.; see also Campbell v. Rust Eng‘g Co., 927 F.2d 603, 1991 WL 27423, at *5-6 (6th Cir. 1991) (finding a $68,897 award for embarrassment and humiliation excessive and ordering a remittitur to $10,000, where the plaintiff testified that his layoff “hurt [him] quite a bit” and embarrassed him, but he suffered no aggravated injuries, only the normal disappointment associated with losing a job); McDowell, 1993 WL 262846, at *4 (finding material evidence to support an award of $47,840 as damages for humiliation and embarrassment); Roberson v. Univ. of Tenn., 829 S.W.2d 149, 152 (Tenn. Ct. App. 1992) (finding material evidence to support $50,000 award to plaintiff with extreme stress, problems eating and sleeping, under the care of a physician for work-related emotional problems, taking medication, and who suffered two miscarriages).
We have also upheld some relatively larger awards. In Thompson v. City of LaVergne, 2005 WL 3076887, at *12-13, this Court affirmed a remittitur of a $450,000 award for humiliation and embarrassment to $300,000, where the employee was assigned to the midnight shift after investigating a complaint of sexual harassment and worked in that capacity for two years, experiencing a sense of despair, loss of faith in his job, a change in his personality at home to being short-tempered and withdrawn, an inability to attend family
Considering these same principles, we cannot say that the trial court erred in suggesting a remittitur of the jury‘s award of $2,000,000 for Goree‘s humiliation and embarrassment to $1,100,000, a reduction of 45 percent.18 We agree with the trial judge that the original award was “outside the range of reasonableness.” Although Goree‘s injuries were more pronounced than simple disappointment, in that he sought medical treatment and counseling “for a period of time,” he certainly did not suffer any aggravating injuries or circumstances to justify an award of $2,000,000. Besides Goree‘s acknowledgement that he was “medically ill,” he did not present any evidence of a medical diagnosis in relation to his treatment, and he did not receive any long term treatment or medication. We reject Goree‘s argument that the trial court‘s remittitur should be reversed and accordingly affirm the award as modified by the trial court.
D. Wherry‘s claim for racial discrimination based on his demotion
We now turn to an examination of Wherry‘s claim that he was demoted because of his race. According to UPS, Wherry was demoted because he failed to act in a timely manner after receiving notice of an egregious act of racial harassment in connection with Martin Luther King, Jr. Day. Wherry attempts to prove his claim for racial discrimination by circumstantial evidence and the McDonnell Douglas analysis. The steps for establishing a prima facie case are slightly modified when the case involves a demotion as opposed to a failure to promote. Wherry could demonstrate a prima facie case of racial discrimination by establishing that (1) he was a member of a protected class, (2) he suffered an adverse employment action, (3) he was qualified for the position, and (4) he was either replaced by a person outside of the protected class or was treated less favorably than a similarly situated employee who is not a member of the protected class and who engaged in similar conduct. Cf. Stewart v. Cadna Rubber Co., No. W2013-00670-COA-R3-CV, 2014 WL 1235993, at *8 (Tenn. Ct. App. Mar. 26, 2014); Pierce v. City of Humboldt, No. W2012-00217-COA-R3-CV, 2013 WL 1190823, at *10 (Tenn. Ct. App. Mar. 25, 2013); Castro v. TX Direct, LLC, No. W2012-01494-COA-R3-CV, 2013 WL 684785, at *5 (Tenn. Ct. App. Feb. 25, 2013); Hartman v. Tenn. Bd. of Regents, No. M2010-02084-COA-R3-CV, 2011 WL 3849848, at *7 (Tenn. Ct. App. Aug. 31, 2011).19 UPS argues that Wher-
A plaintiff who seeks to rely on a similarly situated employee to establish a claim of discrimination is not required to show “an exact correlation” between the compared employee‘s situation and his own, but he is required to show that their situations “were similar in all relevant respects.” Pierce, 2013 WL 1190823, at *11 (quoting Bobo v. UPS, 665 F.3d 741, 751 (6th Cir. 2012)). To meet this element of proof, the plaintiff “must make meaningful comparisons between [him]self and other employees who are similarly situated in all material respects.” Id. (quoting Spann, 36 S.W.3d at 468). “[I]t is not necessary to show that the compared employee‘s situation was identical to that of the plaintiff.” Id. However, “[t]he comparable employees should have held similar positions, dealt with the same level of supervision, and been subject to the same general employer-imposed work rules and requirements.” Id. Also, the “similarly situated” individuals must have “engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer‘s treatment of them for it.” Castro, 2013 WL 684785, at *6; Versa, 45 S.W.3d at 581.
Wherry claims that he has identified several similarly situated employees to satisfy this element of his prima facie case. First, he points to several other individuals who were involved with the investigation into the incident that occurred on Martin Luther King, Jr. Day but not demoted. He identifies Matthew Webb, a white male, who was an attorney and the vice president and/or labor division manager for the Midsouth district, consisting of Tennessee, Alabama, Mississippi, Louisiana, Florida, “and a small section of the Southwest.” Webb‘s position was far superior to Wherry‘s position of division manager for West Tennessee, and Webb was employed in the labor division, unlike Wherry, who was in the package division. Accordingly, the two were not similarly situated because they had “substantially different job titles and responsibilities.” Hartman, 2011 WL 3849848, at *8.
Wherry also points to David Ragsdale, a division labor manager who worked beneath Matthew Webb. His geographical area of responsibility was between Memphis and Nashville. As labor manager, Ragsdale was responsible for meeting with the local union to review employee grievances and supporting UPS operations when it came to disciplinary matters. Ragsdale was one of the managers involved in the decision regarding how to deal with the employee who used the racial slurs. Ragsdale was also involved in the negotiations between the union and UPS after the employee filed a grievance, and he was authorized to settle the matter on behalf of UPS. Again, Wherry is attempting to compare himself to someone with a substantially different job title, in a different department, with different re-
Wherry also attempts to compare himself to Josh Knolton, a white male who worked at the Bartlett facility when the racial slurs were made. Knolton was an on-car supervisor who filled in as acting manager for one week because his business manager was on vacation. He was not a manager in any permanent capacity and was not similarly situated to Wherry, the division manager for West Tennessee.
Wherry vaguely asserts, without any meaningful comparison, that “other comparators” would include district president Ken Harms, security division manager Tim Breedlove, and security regional manager Stan Purvis. Again, these individuals have substantially different job titles and responsibilities, and Wherry has failed to engage in any meaningful analysis to establish that these employees were similarly situated but treated differently because of their race.
Finally, Wherry also asserts that David Ragsdale engaged in “racist conduct” when he previously worked as a business manager, and yet he was only “disciplined the grand total of $150.00.” At trial, a black female UPS employee testified that she was assigned to work at David Ragsdale‘s center at Oakhaven in Memphis when he was a business manager. She followed him to the center after meeting him at another facility, but when she arrived, she was unable to go through the security gate because Ragsdale did not wait for her to escort her through the gate. The employee claimed that the gate workers told her that Ragsdale said that “he was trying to get out of there before he had to sign that girl in and she‘s right behind me.” The employee believed she
After reviewing the circumstances surrounding Ragsdale‘s situation, we conclude that Wherry has again failed to demonstrate that he was treated less favorably than a similarly situated employee who engaged in similar conduct. The incidents occurred while Ragsdale was a business manager and Wherry was a division manager. Also, the incidents do not involve similar conduct. There were “differentiating or mitigating circumstances” that distinguish Ragsdale‘s conduct and his employer‘s treatment of it. Castro, 2013 WL 684785, at *6. Ragsdale allegedly hurried through a gate without signing in an employee so that she was required to wait for another employee to sign her in. Wherry failed to report an incident of racial harassment for over a week because he forgot about it, even though UPS was required to take action within ten days of his knowledge of the incident. When Wherry did report the incident, he failed to inform anyone of the fact that he had known about the situation for over a week. On these facts, no rational factfinder could conclude that Wherry was treated less favorably than a similarly situated employee who is not a member of the protected class and who engaged in similar conduct. None of these employees were similarly situated to Wherry in the relevant respects. See Pierce, 2013 WL 1190823, at *11. Accordingly, Wherry has not demonstrated facts giving rise to an inference of racial discrimination. Because Wherry was not similarly situated to the aforementioned employees, simply claiming that he was treated differently than these employees is not sufficient to prove racial discrimination by UPS. As such, the trial court should have granted UPS‘s motion for judgment notwithstanding the verdict on Wherry‘s claim for racial discrimination. We reverse the judgment in favor of Wherry on his claim for discrimination on account of his race.
E. Wherry‘s claim for retaliation based on his demotion
Finally, we turn to Wherry‘s claim for retaliation for protected activity.21 The THRA prohibits retaliation against an employee “because such person has opposed a practice declared discriminatory by this chapter or because such person has made a charge, filed a complaint, testified, assisted or participated in any manner in any investigation, proceeding or hearing under this chapter.”
I told James [Buchanan], I said: James, to get—I said: James, us to date, before we put Mitch [Goree‘s] name on a requisition, I said, I don‘t need—I—I just got promoted, first black guy in this city to get to be a division manager. I said: I want to keep moving up in the company. I don‘t need no concerns. I said: I want you to know now before you put Mitch name on that list, he got litigation he had litigation with this company. Whenever you put a guy name on the—a requisition with litigation, it don‘t look good.
James told me: You let me worry about that. You put his name on the list, on—on the requisition. I got the rest of it.
I said: Okay.22
Wherry testified that when he learned Riley would be named business manager, he told Buchanan and others that Riley was “not the guy for the job” and that he could not handle the position of business manager. Finally, Wherry testified that he discussed Goree‘s situation with district president Harms, and Harms allegedly said, “We don‘t—we don‘t promote guys with litigation at this company, or lawsuits basically.” Wherry did not challenge Harms in response to this statement, nor did he report the statement to anyone.
Only certain retaliatory conduct violates the THRA. Sawyer, 2006 WL 3298326, at *6. Because Wherry has not participated in a lawsuit or proceeding under the THRA, he must demonstrate that UPS retaliated against him because he “opposed a practice declared discriminatory by [the THRA].”
We also conclude that Wherry did not engage in protected activity in connection with his conversation with Harms. Even though Wherry testified that Harms made a statement indicating retaliatory in-
Wherry‘s conversation with Buchanan, though, presents a closer case. Wherry told Buchanan, his superior, that he did not want any “concerns” due to his submission of a requisition form for Goree to be named business manager, considering the fact that Goree had prior litigation against the company. He suggested that recommending someone with prior litigation “don‘t look good.” “When an employee communicates to [his or] her employer a belief that the employer has engaged in a form of employment discrimination, that communication virtually always constitutes the employee‘s opposition to the activity.” Crawford, 555 U.S. at 276, 129 S.Ct. 846 (quotations omitted). Wherry‘s self-serving statement may be at the outer limit of what we would consider “opposing” a discriminatory practice. However, viewing the evidence in the light most favorable to Plaintiffs, we consider Wherry‘s statement to Buchanan to be some scant evidence from which a trier of fact might reasonably conclude that Wherry engaged in conduct protected by the THRA by speaking out against allegedly discriminatory behavior.
Still, this does not end the inquiry. In order to prevail on his retaliation claim, Wherry was also required to establish that “there was a causal connection between the protected activity and the materially adverse action.” Sykes, 343 S.W.3d at 29. Ultimately, he was required to show that UPS retaliated against him “because” he opposed a practice declared discriminatory by the THRA.
Once the McDonnell Douglas framework falls away and the trier of fact is left to determine the ultimate issue of retaliation, “the question becomes whether the plaintiff has established that it is more likely than not that the employer‘s proffered reason ‘is mere pretext and thus a coverup’ for the employer‘s true retaliatory motive.” Williams, 465 S.W.3d at 118 (quoting Barry v. U.S. Capitol Guide Bd., 636 F.Supp.2d 95, 102-03 (U.S.D.C. 2009)). Pretext is typically shown by establishing that the employer‘s proffered reason has no basis in fact, that it did not actually motivate the decision, or it was insufficient to motivate the decision because other employees who engaged in substantially the same conduct were not demoted. Id. at 119. After taking into account any evidence that exposes weaknesses or inconsistencies in the employer‘s proffered explanation, the trier of fact must decide “whether the evidence as a whole gives rise to an inference that the employer‘s proffered non-retaliatory reason is pretextual.” Id. at 118.
Circumstantial evidence that is pertinent and probative on the issue of causation and retaliatory intent includes, but is not limited to: (1) the temporal proximity of the adverse action to the complaint; (2) a pattern of workplace antagonism after a complaint; (3) an employer‘s failure to adhere to established company policy in dealing with the employee; (4) discriminatory treatment when compared to similarly situated employees; (5) evidence of a good work history and high or solid performance evaluations of the employee; (6) sudden and marked changes in an employee‘s performance evaluations after the exercise of the employee‘s protected rights; and (7) evidence tending to show that the employer‘s stated reason for discharge was false. Sykes, 343 S.W.3d at 29-30 (citations omitted).
A brief recap of the timeline surrounding Wherry‘s demotion is helpful. Wherry, Buchanan, and Goree met for lunch to discuss the vacant business manager position in August 2010. In October 2010, Buchanan announced that Riley was getting the job. Goree immediately left work and did not return to work for about six months. On Wednesday, January 19, 2011, while Goree remained on leave, two black employees at the Bartlett UPS facility complained to their business manager that a white employee used “the n-word” to them in reference to Martin Luther King, Jr. Day on two separate occasions. The business manager at that facility immediately called Wherry, informed him that some of his employees “had words,” and asked Wherry to come to the facility. According to Wherry, he asked the business manager‘s opinion as to whether anyone needed to be terminated, and the business manager said no. Wherry suggested that they discuss the situation at a regularly scheduled division meeting the next day, which was Thursday, January 20. The business manager arrived late to the division meeting the following morning and handed the employees’ written statements to Wherry. Wherry placed the statements in his planner and admittedly forgot about them. The Bartlett business manager was on vacation the following week, but the acting business manager at Bartlett called Wherry on Friday, January 28 and complained about the same employee who used the racial slur in reference to Martin Luther King, Jr. Day. The acting business manager also asked Wherry to come to Bartlett. Another Bartlett employee also called Wherry that day and reported that
Upper level management and human resource personnel commenced an investigation in order to determine why the ten-day disciplinary deadline was missed. Wherry was taken out of service around February 17, pending the investigation. One to two days before he was removed from service, Wherry allegedly had the conversation with district president Harms regarding Goree‘s opportunity to receive the promotion to business manager the previous summer, when the district president said “we don‘t promote guys with litigation at this company, or lawsuits basically.” Wherry did not report this statement to anyone or voice any opposition to Harms.
On or about March 3, 2011, Wherry was summoned to Nashville to meet with the Midsouth district HR manager and the regional security manager in connection with the investigation of the missed ten-day deadline. After an interview and further investigation, Wherry was demoted from the position of division manager to business manager on or about March 10, 2011, allegedly because of his week-long delay in responding to the incident that occurred on Martin Luther King, Jr. Day.
In Reeves, the United States Supreme Court explained that “a plaintiff‘s prima facie case, combined with sufficient evidence to find that the employer‘s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148, 120 S.Ct. 2097 (emphasis added). However, the Court cautioned, “This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury‘s finding of liability.” Id.
Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant‘s explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer‘s decision, or if the plaintiff created only a weak issue of fact as to whether the employer‘s reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. [citations omitted] . . . To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under
Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff‘s prima facie case, the probative value of
Id. at 148-49, 120 S.Ct. 2097. This Court recognized these same principles in Frame v. Davidson Transit Organization, 194 S.W.3d 429, 438 (Tenn. Ct. App. 2005).
We agree with UPS that Wherry simply failed to produce sufficient evidence from which a rational jury could conclude that the real reason for his demotion was retaliation based on his advocacy for Goree. Wherry does not dispute the basic facts. He was asked to come to Bartlett on January 19 because employees there “had words,” but he did not go. He received written statements detailing the incident the next day but placed the documents in his planner and never read them. Wherry received two telephone complaints about the same employee on Friday, January 28, and was again asked to come to Bartlett because the employee was out of control. Instead, Wherry called the security department late that evening and instructed them to respond to the incident on Monday, January 29. Wherry did not inform security that he had known about the incident for over a week. UPS missed the ten-day deadline and settled the employee‘s grievance by allowing him to return to work. UPS immediately investigated the chain of command and learned that Wherry knew about the complaint for over one week during the limited ten-day period before he took any action. Wherry was demoted shortly thereafter. No reasonable person would conclude that Wherry was actually demoted because he advocated for Goree to get a promotion the previous summer.
We note Wherry‘s contention that he proved that UPS‘s stated reason for demoting him was pretextual. He claims that the employee who used the racial slurs could not be terminated for such an offense, regardless of his delay, because of a provision in the collective bargaining agreement defining certain “cardinal sins” that warrant termination. However, we conclude that Wherry, at best, “created only a weak issue of fact as to whether the employer‘s reason was untrue.” See Reeves, 530 U.S. at 148, 120 S.Ct. 2097. The evidence at trial demonstrated that UPS and the union have a longstanding difference of opinion as to whether the “cardinal sin” provision limits the ability of UPS to terminate employees for certain designated offenses, as Wherry suggests. Regardless of each employee‘s personal opinions as to whether using racial slurs would constitute a cardinal sin under the labor contract, the witnesses were in general agreement that UPS would terminate the employee under the circumstances presented here under its interpretation of the labor contract, even if it would face a subsequent battle with the union over the propriety of the termination. Even Wherry admitted at trial that if he had actually read the write-ups he was provided, detailing the racial slurs made by the employee, he would have terminated the employee himself “[b]ecause that no doubt would have been good cause to terminate.” Most importantly, UPS did terminate the employee for using racial slurs and returned him to work only after settling his grievance. In sum, we discern little probative value in Wherry‘s attempt to prove that UPS‘s explanation was false. Wherry did not establish that UPS‘s stated reason for demoting him had no basis in fact, that it did not actually motivate the decision, or that it was insufficient to motivate the decision because other employees engaged in substantially the same conduct and were not demoted. See Williams, 465 S.W.3d at 119. Even taking the strongest legitimate
IV. CONCLUSION
For the aforementioned reasons, the decision of the circuit court is hereby affirmed in part, reversed in part, and remanded for further proceedings. Costs of this appeal are taxed one-half to the appellees, Mitch Goree and James Wherry and one-half to the appellant, United Parcel Service, Inc., and its surety, for which execution may issue if necessary.
MEMPHIS BONDING COMPANY, INC. v. CRIMINAL COURT OF TENNESSEE 30TH DISTRICT, et al.
Court of Appeals of Tennessee, AT JACKSON.
October 29, 2015 Session
Filed November 25, 2015
Application for Permission to Appeal Denied by Supreme Court March 22, 2016.
Notes
In another case, the court of appeals considered a claim under the Public Employee Political Freedom Act and compared the language of that statute to the anti-retaliation provision of the THRA. Gooch v. City of Pulaski, No. M2006-00451-COA-R3-CV, 2007 WL 969398, at *2 (Tenn. Ct. App. Mar. 30, 2007). The court stated, “It is well established in Tennessee that a plaintiff relying on these statutes under the THRA need only show that participation in the protected activity was a motivating factor in the employer‘s discriminatory conduct.” Id. at *6 (citing Bruce v. W. Auto Supply Co., 669 S.W.2d 95, 97 (Tenn. Ct. App. 1984)). However, Bruce was an age discrimination case, not a retaliation case.
I said: James, Mitch got—had litigation with UPS. We put his name on this requisition, it‘s going to be concerns. I don‘t need my name associated with concerns.
He said: Let me worry about that. I‘m your boss.
I said: Okay.