Henning v. City of Jackson, Tennessee

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

EUGENIE HENNING,

Plaintiff,

v. No. 1:21-cv-01040-JDB-jay

CITY OF JACKSON, TENNESSEE,

Defendant.

______________________________________________________________________________

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

AND

DISMISSING CASE

______________________________________________________________________________

INTRODUCTION AND PROCEDURAL BACKGROUND

On March 11, 2021, the Plaintiff, Eugenie Henning, brought this action against the

Defendant, City of Jackson, Tennessee (the “City”), pursuant to Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. §

1981, alleging discrimination on the basis of race and retaliation. (Docket Entry (“D.E.”) 1.)

Pending on the Court’s docket is the City’s motion for summary judgment pursuant to Rule 56 of

the Federal Rules of Civil Procedure (D.E. 24), to which Plaintiff responded (D.E. 32), and

Defendant replied (D.E. 33).1 As the motion has been fully briefed, it is ripe for disposition.

STANDARD OF REVIEW

Rule 56 provides in relevant part that “[t]he court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

1To aid the Court in its review of Defendant’s submissions, counsel is instructed, in future

filings, to include when docketing exhibits a brief description of the exhibit’s contents, for

example, “Exhibit A – Deposition of Eugenie Henning.”

judgment as a matter of law.” Fed. R. Civ. P. 56(a). At the summary judgment stage, a plaintiff

“can no longer rest on allegations alone[.]” Reform Am. v. City of Detroit, Mich., 37 F.4th 1138,

1148 (6th Cir. 2022) (internal quotation marks omitted), reh’g en banc denied, 2022 WL 2914586

(6th Cir. July 18, 2022). Rather, upon the filing of a proper motion for summary judgment, the

nonmoving party “must present significant probative evidence that will reveal that there is more

than some metaphysical doubt as to material facts.” Wiley v. City of Columbus, Ohio, 36 F.4th

661, 667 (6th Cir. 2022) (internal quotation marks omitted). “A dispute is ‘genuine’ only if a

reasonable jury could decide it either way, and it is ‘material’ only if its resolution could affect the

case’s outcome.” Reform Am., 37 F.4th at 1147. In making its determination, the court is to “view

the factual evidence in the light most favorable to the nonmoving party, and draw all reasonable

inferences in that party’s favor.” Stein v. Gunkel, ___ F.4th ___, 2022 WL 3210205, at *4 (6th

Cir. Aug. 9, 2022) (quoting Burwell v. City of Lansing, 7 F.4th 456, 462 (6th Cir. 2021)). “The

moving party is entitled to summary judgment when the non-moving party fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Goodman v. J.P. Morgan Inv. Mgmt., Inc., 954 F.3d

852, 859 (6th Cir. 2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)) (internal

quotation marks omitted), reh’g en banc denied (July 1, 2020).

UNDISPUTED MATERIAL FACTS

The following material facts are undisputed. Defendant hired Henning, who is black, on

February 5, 2011, as a senior secretary in its groundskeeping department. She was later promoted

to the position of administrative specialist in the same department. On or about June 9, 2017,

Plaintiff filed an EEOC charge against the Defendant. At the time the charge was filed, her

supervisor was Willie Woods, Lynn Henning was the City’s HR Director, and the position of City

Mayor was held by Jerry Gist. The charge, of which Lynn Henning was aware, concluded without

any recovery of damages.

After Plaintiff filed the EEOC charge, she continued to work for the Defendant and

received cost of living raises. In the summer of 2019, Scott Conger replaced Gist as City Mayor

and hired Alex Reed as his chief of staff. Around December of that year, Henning approached

Reed and informed him that she was unhappy in the groundskeeping department and that she

would like a different job. At approximately the same time, Rena Tyler, then an employee of the

City’s health and sanitation department, advised Reed that she too was unhappy in her position.

Reed proposed that Henning and Tyler, who is white, switch jobs, to which both women agreed.

As a result, Plaintiff began working in the health and sanitation department under her new

supervisor, Kathleen Honeycutt.

In March 2020, the City entered a state of emergency in light of the COVID-19 pandemic.

Around that time, Defendant determined that an expected revenue shortfall might lead to an

inability to pay salaries and wages.

On April 5, 2020, Henning sent an email to Honeycutt that stated in its entirety as follows:

I’ve address many concerns that I have to you in the last several months since I’ve

been in this department, yet again, after I was given the information that you shared

with me Friday morning I was baffled. I pondered on the information as to why

would Cynthia [Walker] move from the office that she has been in since she began

in the department. She is your assistant; therefore, I would think that she should be

the person nearest to you. You stated last month that Mayor Conger wanted

Cynthia to be responsible for all of the billing, and the receipt of payments, which

include the receipt of payments that is mailed in, and payments made in person by

customers. You stated that he told you that one person should be responsible for

the receipt book, and that person is Cynthia. I asked you Friday about the fact that

she is the responsible person, you indicated that I can receipt payments; in which,

in contradictory. Now, suddenly that has change once again. I feel that I am not

being treated fairly. As I have mentioned before to you, that I would like to be a

part of the team, not isolated where I am not given any information, but overhear

and notice the whispering that indicates there is talk pertaining to me. I am never

asked what I prefer, if I have a choice, what part would I like to play in assisting in

the office work, nor what I think of a matter. I am told what my responsibilities are

in the office, or how it will change after Cynthia has chosen the office

responsibilities that she prefer, as you indicated before to me. I asked for on hand

training from Rena at the GroundsKeeping location, but I was told that she would

have to come over to the H & S Dept., yet Cynthia was given the opportunity to go

to Rena’s location for training over a period of days. I asked for overtime to learn

the job, and to get ahead. I wasn’t given that opportunity, yet Cynthia was/is given

that opportunity once again. When I was transferred from GroundsKeeping to H

& S, I was told that I was going to take Rena’s position, but I wasn’t truly given

that opportunity, no on hand training and no increase in pay. I feel that I am being

set up to fail, or not to succeed. I haven’t really been given the clear understanding

as to what me position really consist of, even though I’ve asked numerous time.

I made the decision to transfer to the H & S Dept. from GroundsKeeping, based on

my thought that I would be treated fairly, respected, and given an opportunity of

equality. I do feel that I am being discipline, for what reason I am unsure. I have

been place in a situation to feel that I am being discriminated. I put my heart and

soul into my job, so that I can make a difference to helping the department to

advance. I am aware that this is a learning process, but I haven’t been given the

opportunity to prove that I am a team player. I am easy to get along with, and

respectful of other people feelings.

The choices shouldn’t be given to one person, and that person shouldn’t be given

the rights to continuously slander, belittle, or degrade other people, based on what

he or she wants. If the issue at hand would be addressed, instead of looking at

certain workers for speaking up as troublemakers, this world and that which is in

it, would be a better place to live, work, and dwell.

If you feel that I am not the right person to work in your department, please inform

the Mayor; with due respect, the true reason for your decision. I have put every

effort into making this transition transpire that would be beneficial to the City of

Jackson, H & S Dept., and as well as myself. Value me as a person first, then as an

employee who does want to have true equality.

(D.E. 24-3 at PageID 224-25.) The email was forwarded by Reed to Lynn Henning, who

responded to the email on April 7, 2020:

In my role as the Director of Human Resources for the City of Jackson, I am the

investigator of complaints brought against employees of the City with regards to

Title VII violations, namely discriminatory practices, acts and/or conditions

relative to race, gender, religion, disability, age, etc.

Additionally, each year during the month of October, as Title VI Coordinator, I

make all employees and citizens aware of our commitment to non-discrimination

in our programs, services, etc. While employees do not fall specifically under this

title, the intent is to bring awareness to any practices, acts or the like that may be

discriminatory in nature.

With that being said, I have a copy of the letter that you sent to Kathleen Huneycutt

on April 6, 2020, where you allege unfair treatment, among other issues. I am

opening an investigation as per policy and will report my findings to Mayor Scott

Conger. I will need your cooperation in providing as much detail as possible

relative to when incidents occurred, where they occurred and witness(es) to any

incidents.

1. You said that you are not being treated fairly.

a. Describe the incident or incidents that occurred to indicate

that you are being treated unfairly.

b. When did she commit the act(s)?

c. What did she do?

d. Who witnessed this act?

2. You said that you feel that you are being set up to fail.

a. Describe how you are being set up to fail.

b. What did she do?

c. When did she do it?

d. Who witnessed this act?

3. You said that you feel that you are being disciplined.

a. When did the discipline take place?

b. What form of discipline was it?

4. You said that you are being discriminated against.

a. Please explain.

5. You said that people have been given the rights to continuously

slander, belittle or degrade.

a. Please explain.

b. What was said?

c. Who said it?

d. Were there any witnesses? If yes, who were they?

6. You said—value me as a person first, then as an employee who does

want to have true equality.

a. Please explain.

b. How are you treated [“]less than a person[”]?

c. How are you not treated equally as other employees?

Again, as I will conduct a full investigation into these accusations, the more details

and information that you can provide will be helpful.

(D.E. 32-3 at PageID 402-03.)

Around April 24, 2020, Defendant furloughed some 200 of its 790 employees. Plaintiff

was among those employees affected. Later, when movant began preparing its upcoming fiscal

budget and projections indicated an anticipated $2 million budget deficit, the City, on June 23,

2020, terminated twenty-two employees as part of a reduction in force (“RIF”) in an attempt to

reduce the deficit. Of that number, eleven were white and eleven were black. Plaintiff was one of

those fired. It was the City’s department heads who made recommendations as to which employees

should be selected for RIF furlough and termination. Lynn Henning was still the HR Director at

the time of the RIF.

ARGUMENTS OF THE PARTIES AND ANALYSIS

SECTION 1981.

Although Plaintiff seeks redress pursuant to § 1981, the statute does not create an

independent cause of action against a municipality. See Arendale v. City of Memphis, 519 F.3d

587, 598-99 (6th Cir. 2008); see also Johnson v. Louisville-Jefferson Cty. Metro. Gov’t, Civil

Action No. 3:19-CV-00431-GNS-CHL, 2020 WL 6386395, at *4 (W.D. Ky. Oct. 30, 2020);

Marshall v. Wayne Cty., Case No. 2:19-cv-12515, 2020 WL 5505382, at *3 (E.D. Mich. Sept. 11,

2020). Accordingly, her § 1981 claims cannot stand.

TITLE VII.

Racial Discrimination

Title VII prohibits “discriminat[ion] against any individual with respect to [her]

compensation, terms, conditions, or privileges of employment, because of such individual’s race .

. . .” 42 U.S.C. § 2000e-2(a)(1). Where, as is the case here, a plaintiff lacks direct evidence of

discrimination, the court is to apply the familiar burden-shifting framework articulated in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Thompson v. Fresh Prod., LLC,

985 F.3d 509, 522 (6th Cir. 2021).

Generally, the framework consists of three steps. Briggs v. Univ. of Cincinnati, 11 F.4th

498, 507-08 (6th Cir. 2021). A plaintiff bears the initial burden of establishing a prima facie case

of discrimination by showing that (1) “he or she was a member of a protected class”; (2) “he or

she suffered an adverse employment action”; (3) “he or she was qualified for the position”; and

(4) “he or she was replaced by someone outside the protected class or was treated differently than

similarly-situated, non-protected employees.” Id. at 508. If the plaintiff fails at this stage,

defendant is entitled to summary judgment on the claim. Equal Emp’t Opportunity Comm’n v.

Clarksville Health Sys., G.P., ___ F. Supp. 3d ___, 2022 WL 3009502, at *6 (M.D. Tenn. July 28,

2022); see also Briggs, 11 F.4th at 508 (“On a motion for summary judgment, a district court

considers whether there is sufficient evidence to create a genuine dispute at each stage of the

McDonnell Douglas inquiry.”). If the plaintiff succeeds on this showing, “[t]he burden then shifts

to the defendant to articulate a legitimate, non-discriminatory reason for its actions, supported by

admissible evidence that if believed by the trier of fact, would support a finding that unlawful

discrimination was not the cause of the employment action.” Briggs, 11 F.4th at 508 (internal

quotation marks omitted). At that point, the burden returns to the plaintiff, requiring her to prove

by a preponderance of the evidence that “the employer’s proffered reasons were a mere pretext for

discrimination.” Id. at 508-09.

As noted above, Plaintiff was terminated as part of a RIF. “A workforce reduction situation

occurs when business considerations cause an employer to eliminate one or more positions within

the company.” Passmore v. Mapco Express, Inc., 447 F. Supp. 3d 654, 666 (M.D. Tenn. 2017)

(quoting Bell v. Prefix, Inc., 321 F. App’x 423, 428 (6th Cir. 2009)). Because of the unique nature

of such circumstances, the fourth element of the prima facie case has been modified to require a

heightened showing where the adverse action involved a RIF. Thompson, 985 F.3d at 522; Peeples

v. City of Detroit, 891 F.3d 622, 634 (6th Cir. 2018), reh’g denied (July 6, 2018). Under this

standard, the plaintiff must present “additional direct, circumstantial, or statistical evidence

tending to indicate that the employer singled out the plaintiff for discharge for impermissible

reasons.” Peeples, 891 F.3d at 634 (quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th

Cir. 1990)).

The instant motion focuses on the fourth element of the prima facie case, as modified for

RIF actions. In making its determination as to whether this requirement has been met, courts have

been instructed that “[t]he guiding principle is that the evidence must be sufficiently probative to

allow a factfinder to believe that the employer intentionally discriminated against the plaintiff

because of” race. Barnes, 896 F.2d at 1466; see also Pio v. Benteler Auto. Corp., Case No. 1:18-

cv-1265, 2021 WL 5925363, at *9 (W.D. Mich. Feb. 23, 2021), aff’d, 2022 WL 351772 (6th Cir.

Feb. 7, 2022).

Plaintiff argues that, in March 2020, Honeycutt gave some of her job duties to Cynthia

Walker, who is white. She claims that Walker was also given training denied to Henning, a raise,

and permission to work overtime. Plaintiff further submits that, after she was furloughed in April

2020, an unidentified white employee who had worked in the City’s police department was also

furloughed but recalled to work in the health and sanitation department instead of Henning and

apparently not terminated. However, “evidence that one competent employee was retained over

another is not sufficiently probative to allow a factfinder to believe that the employer intentionally

discriminated against the plaintiff because of her race in the RIF context.” Thompson, 985 F.3d at

528 (brackets and internal quotation marks omitted). Such evidence may be enough to clear the

bar upon a showing that the plaintiff was more qualified than the nonprotected individual or that

the employer “made statements indicative of a [racially] discriminatory motive,” see id. at 527,

but neither has been made, or claimed, here. Accordingly, the fact that Walker or the unidentified

employee was retained fails to establish a disputed fact regarding whether Henning was singled

out because of her race. See id. at 528 (“Thompson does not claim that her qualifications were

superior to [a nonprotected retained employee’s], nor does she present other evidence of

discriminatory motive related to [a protected class]. Thus, the fact that [the nonprotected

employee] was retained does not establish a dispute of fact regarding whether Thompson was

singled out because of her [protected status].”).

Absent an essential element of her racial discrimination claim, the prima facie case has not

been shown and the claim must fail.

Retaliation

Plaintiff alleged in her complaint that the City retaliated against her “because of her prior

protests of employment discrimination” (D.E. 1 at PageID 5), specifically, the 2017 EEOC charge

and the April 5, 2020, email. Title VII prohibits an employer from retaliating against an employee

because he or she “has opposed any practice made an unlawful employment practice” or “has made

a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing” under Title VII. 42 U.S.C. § 2000e-3(a). Because Henning again relies upon

circumstantial evidence of retaliation, the same burden-shifting analysis articulated in McDonnell

Douglas applies. See Boshaw v. Midland Brewing Co., 32 F.4th 598, 605 (6th Cir. 2022), reh’g

denied, 2022 WL 2286411 (6th Cir. May 31, 2022). To state a prima facie case of retaliation, the

plaintiff must establish that (1) she “engaged in protected activity,” (2) “defendant[] knew [she]

exercised [her] protected right,” (3) “defendant[] subsequently took an adverse employment action

against [her],” and (4) “[her] protected activity was the but-for cause of the adverse employment

action.” Id. (internal quotation marks omitted). While the McDonnell Douglas analysis is one of

shifting burdens, the ultimate burden “remains with the plaintiff to convince the factfinder that the

defendant retaliated against her for engaging in protected activity.” Jackson v. Genesee Cty. Rd.

Comm’n, 999 F.3d 333, 344 (6th Cir. 2021).

2017 EEOC Charge.

In its motion, the City maintains that Plaintiff cannot establish a causal connection between

the charge and her termination—the fourth element of the retaliation claim. To show causation,

“a plaintiff must produce sufficient evidence from which an inference can be drawn that the

defendant took the adverse employment action because the plaintiff engaged in protected activity.”

Bledsoe v. Tenn. Valley Auth. Bd. of Dir., 42 F.4th 568, 2022 WL 2965630, at *13 (6th Cir. July

27, 2022) (quoting Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 563 (6th Cir. 2004))

(brackets and internal quotation marks omitted). “A plaintiff who shows that the adverse action

occurred immediately after the protected activity may be able to rely on temporal proximity alone

to overcome a motion for summary judgment.” Id. However, when “some time elapses between

when the employer learns of a protected activity and the subsequent adverse employment action,”

causation can be shown if temporal proximity is coupled with “other evidence of retaliatory

conduct to establish causality.” Id. (quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525

(6th Cir. 2008)).

It appears from her brief that the only other evidence of retaliatory conduct offered by

Plaintiff consists of the fact that Lynn Henning was the HR Director at both the time of the EEOC

charge and of her termination. However, it is undisputed that the department heads—in Plaintiff’s

case, Honeycutt—recommended which employees in their departments should be selected for

furlough and termination during the RIF, not the HR Director. No evidence has been presented

that Honeycutt had any knowledge of the 2017 EEOC claim. Therefore, the retaliation claim based

on the 2017 EEOC charge lacks an essential element of the prima facie claim and must fail.

April 5, 2020, Email.

Defendant also maintains that Henning’s April 5, 2020, email cannot form the basis of a

retaliation claim because it does not constitute “protected activity” for purposes of establishing a

prima facie case. To make this showing, a plaintiff must demonstrate that she “took an overt stand

against suspected illegal discriminatory action.” Khalaf v. Ford Motor Co., 973 F.3d 469, 489

(6th Cir. 2020) (internal quotation marks omitted), cert. denied, 141 S. Ct. 1743 (2021). A vague

charge of discrimination in an internal letter or memorandum is insufficient. Id. at 489-90; see

also Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313 (6th Cir. 1989). As

the Sixth Circuit explained in Booker,

[o]therwise, every adverse employment decision by an employer would be subject

to challenge under either state or federal civil rights legislation simply by an

employee inserting a charge of discrimination. In our view, such would constitute

an intolerable intrusion into the workplace.

Booker, 879 F.2d at 1313.

In support of the required showing, Plaintiff references her claim in the email that she was

being denied “true equality.” However, it is unclear from the context in which the term was used

whether she meant equality in the sense of being a member of some protected class or whether she

perceived that she was unappreciated for some nonprotected reason. In its totality, the email reads

as a complaint to Honeycutt that other employees in the department did not like her, that she was

not being taken seriously, and that her personal needs for advancement were not being met as

quickly as she would have preferred, all of which could have arisen for any number of reasons.

Indeed, Plaintiff never mentioned her race, or anyone else’s, or suggested that the treatment of

which she complained had anything to do with race. While she complained that Walker was shown

some favoritism, she offered no indication as to what she considered to be the underlying reason

for it. Viewing the proffered evidence in the light most favorable to the nonmovant, the Court

finds that the vague intimations contained in the April 5, 2020, email fall short of satisfying the

protected activity prong of the prima facie case. See Khalaf, 973 F.3d at 491 (appellate court found

it questionable that employee’s email to employer’s HR manager constituted protected activity

where it merely catalogued instances of his subordinates’ disrespect, poor work, and

defensiveness, none of which he explicitly connected to being motivated by any animus toward

his race or national origin); Speck v. City of Memphis, 370 F. App’x 622, 626 (6th Cir. 2010)

(where plaintiff complained of being targeted for unfair treatment, but not of being targeted

because of her protected status, she had failed to establish that she engaged in protected activity);

Fox v. Eagle Distrib. Co., Inc., 510 F.3d 587, 588-92 (6th Cir. 2007) (appellate court affirmed

district court’s grant of summary judgment in favor of employer where plaintiff’s statements to

customers that employer’s “upper management [was] out to get him” and that his superiors had

prevented him from being promoted, without mentioning age discrimination, did not amount to

protected activity, noting that to decide otherwise would “require [the court] to go beyond drawing

a reasonable inference in [plaintiff’s] favor” by “reading something into the record that simply is

not there”); Grice v. Jackson-Madison Cty. Gen. Hosp. Dist., 981 F. Supp. 2d 719, 737 (W.D.

Tenn. 2013) (plaintiff’s “general complaints of discrimination, which neither referred to a

protected class nor provided facts sufficient to create that inference, are insufficient to constitute”

protected activity); Manstra v. Norfolk S. Corp., No 3-10-CV-166, 2012 WL 1059950, at **11-13

(E.D. Tenn. Mar. 28, 2012) (insufficient showing of protected activity where employee failed to

allege that harsh and unfair treatment by her supervisors and her failure to receive opportunities

equal to those of other trainees were based on her sex or any other matter made unlawful by Title

VII); Longs v. Ford Motor Co., 647 F. Supp. 2d 919, 932-33 (W.D. Tenn. 2009) (an employee’s

complaint to his or her employer “must indicate that discrimination occurred because of sex, race,

national origin, or some other protected class”; “[m]erely complaining in general terms of

discrimination . . ., without indicating a connection to a protected class or providing facts sufficient

to create that inference, is insufficient”).

Plaintiff also points to Lynn Henning’s response to her email and the statement therein that

she was the investigator of complaints against the City for Title VII violations of all kinds. If

anything, the email, taken in its entirety, works against the Plaintiff. Although the missive advised

Plaintiff that an investigation into her alleged “unfair treatment” would be opened pursuant to City

policy, it was clear from the questions posed in the responsive email that the HR Director could

not discern from Plaintiff’s communication the basis for any potential Title VII claim. It is worth

noting here that Plaintiff does not argue, and the record does not reflect, that she ever complied

with Lynn Henning’s request for details relative to the complaints made in the April 5, 2020,

email.2 The retaliation claim based on the email fails.

CONCLUSION

For the reasons articulated herein, Defendant’s motion for summary judgment is

GRANTED and this matter is DISMISSED. The Clerk is DIRECTED to enter judgment in favor

of the Defendant and to remove all settings in the case from the Court’s calendar.

IT IS SO ORDERED this 25th day of August 2022.

s/ J. DANIEL BREEN

UNITED STATES DISTRICT JUDGE

2In her second declaration, a copy of which is attached as an exhibit to the City’s reply

brief, Lynn Henning stated that Plaintiff never responded to her April 7, 2020, email. (D.E. 33-1

¶ 3.)