Howard v. Cherokee Health Systems

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT GREENEVILLE

JEFFREY W. HOWARD, )

)

Plaintiff, )

)

v. ) No.: 2:22-CV-134-KAC-CRW

)

CHEROKEE HEALTH SYSTEMS, )

)

Defendant. )

)

)

MEMORANDUM OPINION AND ORDER

This action is before the Court on Defendant Cherokee Health Systems’s “Motion for

Summary Judgment” [Doc. 11]. Because there are no genuine disputes of material fact and

Defendant is entitled to judgment as a matter of law, the Court GRANTS Defendant’s “Motion

for Summary Judgment” [Doc. 11].

I. Background1

A. Plaintiff’s Tenure At Cherokee Health Systems

Plaintiff Jeffrey W. Howard began working for Defendant part time in college and was

hired full time as controller in 1992 [Doc. 12 at 67 (Deposition of Jeffery W. Howard (“Howard

Dep.”) 13:21-23)]. Dr. Dennis Freeman hired Plaintiff, and Plaintiff reported to him [Id. (Howard

Dep. 14:16-23)]. Freeman served as Defendant’s Chief Executive Officer (“CEO”) from 1978

until February 1, 2022 [Id. at 31 (10/26/2021 Cherokee Board of Directors Meeting Minutes

(“10/26/2021 Board Meeting Minutes” at 3)]. By 2000, Plaintiff ascended to the position of Chief

1 Because Plaintiff is the nonmoving Party, the Court describes the facts in the light most favorable

to him. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l

Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).

Financial Officer (“CFO”) at Cherokee Health Systems, despite leaving temporarily for another

position [Id. at 68 (Howard Dep. 14:4-23; 19:3-9)]. Plaintiff continued to serve as CFO, reporting

to Freeman, until Plaintiff was terminated [Id. (Howard Dep. 19:13-15)].

Plaintiff believes that throughout Freeman’s tenure, Freeman “protected” certain female

employees, giving them his “favorite attention” [Id. at 70 (Howard Dep. 27:3-18)]. To Plaintiff,

“it just seemed that everyone that was advanced was female” [Id. at 71 (Howard Dep. 32:7-8)].

Plaintiff points to Tracey Garner as one example [See id. (Howard Dep. 25:1-8)]. Freeman

elevated Garner to “leader of” Defendant’s “most complicated office and [Garner] did not have

qualifications for that” [Id. at 69 (Howard Dep. 23:1-5)]. Plaintiff thinks “[t]here were probably

multiple complaints” about Garner’s performance, but “people could not discipline [her] because

she would go straight to Dr. Freeman and get her way” [Id. (Howard Dep. 23:18-19; 24:6-8)].

Plaintiff believes Garner received this treatment because of an alleged affair with

Freeman [See id. (Howard Dep. 24:11-17)].

Garner, however, recalls Freeman repeatedly attempting to hold her hand or kiss her in a

work setting, despite her consistently telling him no [Doc. 20 at 31-32 (Deposition of Tracey

Garner (“Garner Dep.”) 18:18-20:14)]. And Freeman excluded Garner from an important business

trip after she told him “to make sure that [they] had separate rooms” [Id. at 31 (Garner

Dep. 17:8-13)]. Garner left Defendant’s employ as part of a 2012 agreement to settle an Equal

Employment Opportunity Commission charge she filed against Defendant regarding Freeman’s

conduct [Id. at 30 (Garner Dep. 9:3-9; 10:1-3; 12:25-13:15)]. But Garner confirmed that if

someone crossed one of Freeman’s “favored” employees, Freeman “would find a way to get rid

of” that person [Id. at 36 (Garner Dep. 45:12-13)]. And in Garner’s opinion, men simply could

not have a “long-lasting role” at Cherokee Health Systems [Id. at 34 (Garner Dep. 33:1-2)].

Garner points to Freeman’s wife—Rhonda Freeman—as an example of Freeman favoring

certain females. [Id. at 34 (Garner Dep. 31:12-16)]. Freeman’s relationship with his wife began

as an office affair at Cherokee Health Systems [See id. at 33-34 (Garner Dep. 31:12-18)]. But

Mrs. Freeman left her position at Cherokee Health Systems before she married Freeman in 2000

[See id. at 47 (Howard Dep. 82:16-25; 83:1-8)]. And as another example, Plaintiff recalls that

after Freeman and Plaintiff conducted an interview of Stephanie Hall, a potential hire who was

female, Freeman commented “I don’t know whether to hire her or date her” [See Doc. 12 at 71

(Howard Dep. 32:9-12)].

Plaintiff states that not “all [of Freeman’s] favoritism was sexual” [Id. at 70 (Howard Dep.

28:16-17)]. From Plaintiff’s perspective, “[i]f [the female employees] were overweight,” then

Freeman “would bash them every chance he got” [Id. (Howard Dep. 28:19-20]. During Plaintiff’s

tenure with Defendant, he never communicated to anyone that he believed Freeman was

discriminating on the basis of sex [See Doc. 12 at 73 (Howard Dep. 37:6-23)].

B. Freeman’s Resignation

As early as 2019, Freeman was preparing Defendant’s Chief Clinical Officer, Parinda

Khatri a female, to take over as CEO [See id. at 75 (Howard Dep. 49:23-25; 50:1-14)]. Plaintiff

initially encouraged Freeman to elevate Khatri to Deputy CEO [See id. (Howard Dep. 49:3-7)].

In April 2019, Plaintiff wrote to Freeman that he “used to want to try [his] hand at CEO” but he

“learned more over the last few years” and saw that he was “probably not the best choice[]” [See

id. at 47 (4/16/2019 Email between Howard and Freeman)]. Plaintiff explained that Khatri “may

not know everything about contracts and business but those are easier gap [sic] to fill” and assessed

that Khatri “will be great but I think laying out a formal transition would go a long way” [Id.].

Plaintiff also assessed that Freeman had a strong “bias toward having a clinician,” like Khatri,

succeed him as CEO [Id. at 48 (10/29/2021 Email between Howard and Khatri)]. In 2019,

Freeman declined Plaintiff’s suggestion to elevate Khatri to Deputy CEO [See id. at 46

(04/17/2019 Email between Howard and Freeman)].

But on October 26, 2021, Freeman announced to the Board of Directors of Cherokee Health

Systems that he would retire effective January 31, 2022 [See id. at 31 (10/26/2021 Board Meeting

Minutes at 3)]. As part of the announcement, he recommended that the Board select Khatri to

replace him as CEO [See id. (10/26/2021 Board Meeting Minutes at 3)].

C. Plaintiff’s Termination

Within a few days of Freeman’s announcement, Freeman called Plaintiff to inform him of

Freeman’s anticipated resignation and recommendation that Khatri become CEO [See id. at 74

(Howard Dep. 43:20-23)]. The conversation turned to Plaintiff potentially applying to be CEO

[See id. (Howard Dep. 43:18-19)]. According to Plaintiff, Freeman told him that “[he] would have

the opportunity to apply” and that “nothing was in place” [Id. (Howard Dep. 43:25-44:1; 44:14-

15)]. Freeman “didn’t even think the Board had started” the process of replacing Freeman [See id.

(Howard Dep. 44:15-16)].

On October 29, 2021, Plaintiff sent an email to Kenneth Knight, Chairman of the Cherokee

Health Systems Board, and David Purkey, a Board Member, expressing his interest in applying to

be CEO [See id. at 49 (10/29/2021 Email between Howard, Knight, and Purkey)]. Plaintiff then

emailed Khatri to inform her that “[they were] competing for the same position” [See id. at 48

(10/29/2021 Email between Howard and Khatri)]. Khatri’s only reply was “I am in shock” [Id. at

91 (Deposition of Parinda Khatri (“Khatri Dep.”) 30:13)]. Khatri did not respond to further emails

or calls from Plaintiff [See id. at 94 (Khatri Dep. 30:11-14)]. Khatri sent a text message to Freeman

indicating that she could not “believe [Plaintiff] would create division at CHS at this critical time

and go against [Freeman’s] plan” [See id. (Khatri Dep. 52:3-5)]. Thereafter, in late October,

Freeman held an unscheduled “meeting” with his assistant Sandra Greear and Khatri to discuss

Plaintiff’s professed intent to apply for the CEO position. [See Doc. 20 at 37 (Deposition of Sandra

Greear (“Greear Dep.”) 35:7-14); id. at 56 (Khatri Dep. 75:13-20)]. That day, Freeman decided

“to terminate Plaintiff” [See id. at 37 (Deposition of Sandra Greear (“Greear Dep.”) 36:3-6)].

On November 1, 2021, Freeman wrote a letter to Plaintiff terminating him [See Doc. 12 at

51 (Termination Letter)]. The letter read in pertinent part:

You have taken recent self-serving actions that have alienated you from all other

members of the leadership team, run the risk of creating dissention among the staff,

and violated assurances given to me a few hours earlier. I have come to the

conclusion that the future of Cherokee Health Systems will be more harmonious

and productive without you as Chief Financial Officer.

Therefore, I am terminating your employment with Cherokee Health Systems

effective immediately.

[Id. (Termination Letter)]. Freeman sent the letter to Plaintiff.

D. Plaintiff’s Letter To The Board

On November 22, 2021, Plaintiff, through counsel, sent a letter to Board Chairman Knight

expressing Plaintiff’s intent to apply to be CEO [See id. at 40 (Post Termination Interest Letter)].

The letter also stated that Freeman provided “no legitimate business reason for his decision to

terminate [Plaintiff’s] employment” [Id. at 41 (Post Termination Interest Letter)]. The letter

asserted that Plaintiff’s “termination was not the first incident where Mr. Freeman has conducted

himself, as CEO, in an inappropriate and illegal manner based upon sex/gender” [See Doc. 12 at

41 (Post Termination Interest Letter)]. It also alluded to Freeman’s actions towards Rhonda

Freeman, Tracey Garner, and Stephanie Hall [See id. at 41 (Post Termination Interest Letter); 70

(Howard Dep. 24:9-17; 25:1-20; 32:9-12)]. As relevant, the letter concluded:

Mr. Howard does not wish to pursue wrongful termination action against Cherokee

Health Systems. Mr. Howard wishes to play a role in the success of Cherokee

Health Systems. Accordingly, Mr. Howard respectfully requests you and the Board

to consider him for the CEO position.

[Id. at 41 (Post Termination Interest Letter)].

On November 30, 2021, Board Member Nancy Sirianni emailed Chairman Knight and

Freeman, copying the rest of the Board [Id. at 64-65 (11/30/2021 Sirianni Email)]. Sirianni

assessed that “[i]t is very inappropriate for us to be dealing with Mr. Howard directly” because it

was “apparent” “after reading the letter from his lawyer, that if we do not give Mr. Howard an

interview he will sue Cherokee Health Systems for wrongful termination” and “if we interview

him and do not hire him, he will sue Cherokee for wrongful termination” [Id. (11/30/2021 Sirianni

Email)]. Sirianni thought “it behoove[d]” the Board to refer the matter to “in-house counsel” [Id.

(11/30/2021 Sirianni Email)]. Chairman Knight thanked Sirianni for her input [See id. at 64

(12/1/2021 Knight Email in Response to Sirianni)]. For nearly two (2) weeks no action occurred

toward selecting a new CEO or acting on Plaintiff’s letter [See id. at 59 (12/13/2021 Knight Email

to the Search Committee)].

E. The Board Selects Khatri as CEO

After Freeman announced his intent to resign, Defendant formed a Search Committee. The

Search Committee was tasked with “identifying someone to be the next Chief Executive Officer

of Cherokee Health” [See id. at 36 (Affidavit of Kenneth Knight (“Knight Aff.”) ¶ 2)]. A subset

of Defendant’s Board Members—Michael Covington, David Purkey, William Whited, Joe

Haniford, Rosa Mar, and Chairman Knight—made up the Search Committee [Id. (Knight Aff.

¶ 3)]. On December 13, 2021, Knight emailed the Search Committee suggesting that it begin the

process of finding a new CEO and interview Dr. Khatri first “because of the unique nature of

Cherokee Health, [which] suggests strong consideration be given to an in house candidate” and

Cherokee Health Systems’s “succession plan” [See id. at 59 (12/13/2021 Knight Email to the

Search Committee); see also id. at 62 (12/16/2021 Knight Email to the Search Committee (noting

that “a succession plan was adopted by the board several years ago”)]. Knight requested that the

Search Committee approve a plan (1) allowing “a majority of” the Search Committee to meet

Khatri “for lunch [and] get to know [her] better and ask any questions” and (2) then “[f]ollowing

[the] meeting,” “vote on whether or not to recommend her to the full [B]oard or determine when

we want such a committee vote to take place[]” [Id. at 59 (12/13/2021 Knight email to the Search

Committee)].

Covington responded to the email stating “[f]irst and foremost, I think Jeff Howard has a

viable case against Cherokee Health Systems that he could win” because the “last member of the

Leadership Team who dared to announce an intention to pursue the CEO position was

terminated[]” [Id. at 61 (12/15/2021 Covington Email in Response to Knight)]. Covington thought

“Freeman fired [Plaintiff] to protect Dr. Khatri and make sure she got the CEO position” [Doc. 20

at 25 (Deposition of Michael Covington (“Covington Dep.”) 41:19-42:1)]. Despite Covington’s

response, the Search Committee members approved the proposed plan [See Doc. 12 at 36 (Knight

Aff. ¶ 4)]. On January 7, 2021, all of the Search Committee members, except Haniford, met with

Khatri [See id. (Knight Aff. ¶¶ 4-5)]. Haniford met with Khatri separately [Id. at 35 (Affidavit of

Joe E. Haniford (“Haniford Aff.”) ¶¶ 4-5)].

Once the Search Committee completed its interviews of Khatri, it did not interview

Plaintiff, or any other candidate, for the CEO position [See id. at 36 (Knight Aff. ¶¶ 7-8)].

Chairman Knight provided two reasons for not interviewing Plaintiff [See id. at 96 (Deposition of

Kenneth Knight (“Knight Dep.”) 17:2-10)]. First, Plaintiff “had been terminated,” and Knight

“trusted that Dr. Freeman would not discharge someone for no reason” [See id. (Knight Dep. 17:9-

10; 18:1-2)]. Second, Knight wished to interview Khatri first and was “favorably impressed with

her” [See id. at 36 Knight Aff. ¶ 5)].

The entire Search Committee also had a “favorabl[e] impress[ion]” of Khatri [See id.

(Knight Aff. ¶¶ 5, 7)]. Based on that favorable impression, the Search Committee unanimously

decided to recommend that the Board hire Khatri as Defendant’s next CEO [See id. (Knight Aff.

¶¶ 5, 7)]. On January 25, 2022, the Board unanimously voted to end the search and hire Khatri as

CEO [See id. at 36 (Knight Aff. ¶ 7); see also id. at 28 (Affidavit of Sandra Greear (“Greear Aff.”)

¶ 5); id. at 32 (01/25/2022 Cherokee Board of Directors Meeting Minutes (“01/25/2022 Board

Meeting Minutes” at 1)].

F. Procedural History

Plaintiff filed suit [See Doc. 1]. Plaintiff’s operative Amended Complaint raises claims

under “Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e,” “the Tennessee

Human Rights Act (“THRA”), T.C.A. §§ 4-21-101,” “and the Tennessee common law of

retaliatory discharge[],”2 [Doc. 6 ¶ 1], based on Plaintiff’s November 2021 termination and

Defendant’s refusal to “consider” “interview” or “hire him” for the CEO position [Id. at 7].

Defendant moved for summary judgment on all claims [Doc. 11]. Plaintiff opposed, [See Doc.

20], and Defendant replied, [See Doc. 22].

II. Legal Standard

Under Federal Rule of Civil Procedure 56, the Court “shall grant summary judgment if the

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

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court views the facts in the light most

favorable to the nonmoving party and makes all reasonable inferences that can be drawn from

those facts in his favor. Matsushita, 475 U.S. at 587; Nat’l Satellite Sports, 253 F.3d at 907. The

moving party bears the burden of demonstrating that no genuine issue of material fact exists.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, the

2 Neither Party separately addresses Plaintiff’s “common law of retaliatory discharge[]” claim.

And the Court sees no reason to do so. The THRA generally “provides the exclusive remedy for

employment discrimination lawsuits in Tennessee.” See Williams v. Auto Club Servs., Inc., No.

3:21-cv-165, 2021 WL 6497220, *2 (E.D. Tenn. Oct. 4, 2021) (citations omitted).

nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.”

Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Matsushita, 475 U.S. at

586); see also Fed. R. Civ. P. 56(c)(1). A dispute over a material fact is only a “genuine issue” if

a reasonable jury could find for the nonmoving party on that issue. Cockrel v. Shelby Cnty.

Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)). The Court must grant summary judgment where a 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.” Celotex, 477 U.S. at 322.

III. Analysis

A. Defendant Is Entitled To Summary Judgment On Plaintiff’s Sex Discrimination

Claims.

Title VII prohibits an employer from “fail[ing] or refus[ing] to hire[,]” “discharge[ing] any

individual, or otherwise discriminat[ing] against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The THRA does too. See Tenn. Code Ann.

§ 4-21-401(a)(1). “The analysis of claims brought pursuant to the THRA is identical to the analysis

used for Title VII claims.” Bailey v. USF Holland, Inc., 526 F.3d 880, 885 n.1 (6th Cir. 2008)

(citing Campbell v. Florida Steel Corp., 919 S.W.2d 26, 31 (Tenn.1996)).

Because Plaintiff relies only on circumstantial evidence of discrimination, the McDonnell

Douglas burden-shifting framework applies. See McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-03 (1973); Boshaw v. Midland Brewing Co., 32 F.4th 598, 605 (6th Cir. 2022). Under

this framework, Plaintiff bears the burden of establishing a prima facie case of discrimination. See

Levine v. DeJoy, 64 F.4th 789, 797 (6th Cir. 2023) (citing White v. Baxter Healthcare Corp., 533

F.3d 381, 391 (6th Cir. 2008)). If Plaintiff succeeds, the “burden shifts to” Defendant “‘to

articulate some legitimate, nondiscriminatory reason for the employee’s’” treatment. See id.

(quoting Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). And if Defendant

succeeds, the burden shifts back to Plaintiff “to prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its true reasons but were a pretext for

discrimination.” Id.

At step one of the framework, to establish a prima facie case, a plaintiff must generally

demonstrate that “(1) he is a member of a protected class; (2) he was qualified for his job; (3) he

suffered an adverse employment decision; and (4) he was replaced by a person outside the

protected class or treated differently than similarly situated non-protected employees.” Id. (quoting

White, 533 F.3d at 391). Under binding Sixth Circuit precedent,3 because Plaintiff is a male

bringing a claim for sex discrimination and he is part of the “majority,” to make a prima facie case,

he must also “show ‘background circumstances to support the suspicion that the defendant is the

unusual employer who discriminates against the majority.’” See Ames, 87 F.4th at 825 (quoting

Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008)) (petition for cert. filed).

“Plaintiffs typically make that showing with evidence that a member of the relevant minority

group,” here, females, “made the employment decision at issue, or with statistical evidence

showing a pattern of discrimination by the employer against members of the majority group.” Id.

Here, Freeman, a male, made the decision to terminate Plaintiff, and Plaintiff presented no

statistical evidence to support his claim that Defendant was the unusual employer that

discriminates against the “majority” [See generally Doc. 20]. Instead, citing no legal authority,

Plaintiff attempts to establish that Defendant is the “unusual employer” through his own

3 This precedent has been called into question, but the Court is “bound to apply this rule here.” See

Ames v. Ohio Dep’t of Youth Servs., 87 F.4th 822, 827 (6th Cir. 2023) (Kethledge, J., concurring).

conclusory opinions and through the opinion of former employee Tracey Garner [See id. at 11-12

(Howard Dep. 31:17-21; 31:14-15)]. Garner, who left Defendant in 2012, opined that males could

not have a “long-lasting role” at Cherokee Health Systems [Id. at 34 (Garner Dep. 33:1-2)]. And

Plaintiff testified that “it just seemed that everyone that was advanced was female” [Doc. 12 at 71

(Howard Dep. 32:7-8)]. These opinions are not supported by statistics or policies from which the

Court could infer that Defendant treats males unequally as a class. Such conclusory opinions,

without more, are not “evidence” for the purposes of establishing Plaintiff’s prima facie case. See

Treadwell v. American Airlines, Inc., 447 F. App’x 676, 678-79 (6th Cir. 2011) (“‘Evidence’

requires more than the plural of ‘opinion.’”).

Plaintiff alternatively argues that Defendant was the “unusual employer” that discriminates

against males because Freeman had a history of “protect[ing]” “certain females that got his

attention” [Doc. 12 at 70 (Howard Dep. 27:16-18)]. Plaintiff points to three employees to attempt

to establish this pattern—Rhonda Freeman, Garner, and Stephanie Hall [Id. at 70 (Howard Dep.

24:9-17; 25:1-20; 32:9-12)]. Remember that Freeman dated and then married Rhonda Freeman in

2000 [Doc. 20 at 47 (Howard Dep. 82:16-25; 83:1-5)]. Freeman made sexual advances toward

Garner before she left Defendant in 2012 as part of a settlement [Id. at 30 (Garner Dep. 12:25-

13:21)]. And, Freeman expressed potential interest in dating Hall at some point [Id. at 43 (Howard

Dep. 32:9-12)]. But even if three anecdotal examples over a twenty-five-year period were a legally

sufficient method to establish background circumstances—it is not—what Plaintiff describes is

not sex discrimination cognizable under Title VII. Assuming the examples could reasonably be

characterized as “protecting” these females, favoring an employee because of a sexual relationship,

or potential desire for one, is insufficient to establish discrimination on the basis of sex. See

Hubbard v. Evolution Wireless, No. 2:19-cv-234, 2021 WL 6333363, at *10 (E.D. Tenn. Dec. 14,

2021) (citing Schobert v. Ill. Dep’t of Transp., 304 F.3d 725, 733 (7th Cir. 2002) (“Whether the

employer grants employment perks to an employee because she is a protegé, an old friend, a close

relative or a love interest, that special treatment is permissible as long as it is not based on an

impermissible classification . . . . [I]ntra-office romance[] is often bad for morale, but that is

different from saying it violates Title VII.”)); see also Briggs v. Univ. of Detroit-Mercy, 611 F.

App’x 865, 872 (6th Cir. 2015). Therefore, Plaintiff has not established a prima facie case.

But even if Plaintiff had established a prima facie case, at step two, Freeman stated that he

terminated Plaintiff because Plaintiff’s announcement of his intent to seek the CEO position was

“self-serving,” created a risk of “dissention among the staff,” and “violated assurances” Plaintiff

purportedly gave Freeman “a few hours earlier” [Doc. 12 at 51 (Termination Letter)]. Freeman

stated his conclusion that “the future of Cherokee Health Systems will be more harmonious and

productive without [Plaintiff] as Chief Financial Officer” [Id. (Termination Letter)]. Thus,

Defendant met its burden of producing a legitimate nondiscriminatory reason for Plaintiff’s

termination, and the burden would shift back to Plaintiff. See Jackson v. Genesee Cnty. Rd.

Comm’n, 999 F.3d 333, 350 (6th Cir. 2021).

At step three, Plaintiff “‘must identify evidence from which a reasonable jury could

conclude that the proffered reason is actually a pretext for unlawful discrimination.’” See Jackson,

814 F.3d at 778 (quoting Provenzano, 663 F.3d at 812). Plaintiff can show pretext “in three

interrelated ways: (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons

did not actually motivate the employer’s action, or (3) that they were insufficient to motivate the

employer’s action.” See Chen v. Dow Chemical Co., 580 F.3d 394, 400 (6th Cir. 2009) (citing

Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 460 (6th Cir.2004)) (footnote omitted). At bottom,

“[p]retext is a commonsense inquiry: did the employer fire the employee for the stated reason or

not?” Id. at 400 n.4.

Plaintiff offers three pieces of evidence to attempt to show that Defendant’s reason was

pretextual. First, he notes that Freeman held an “unscheduled” meeting “about firing Howard on

the same day they found out that he was applying for the CEO position” [Doc. 20 at 13 (emphasis

original)]. But Plaintiff does not elaborate on this argument further [See id.]. Holding a meeting

about Plaintiff, however, is entirely consistent with Freeman’s termination letter, which describes

a “risk of dissention among the staff” and notes that the work environment would be “more

harmonious” without Plaintiff [See Doc. 12 at 51 (Termination Letter)]. To the extent the meeting

is relevant at all, this evidence supports Defendant.

Second, Plaintiff argues that Board Member Covington “admits” the “proffered excuses

are pretexts and that Freeman would not be honest with him” [Doc. 20 at 13 (citing Doc. 20 at 19-

20 (Covington Dep. 16:22-17:10))]. This argument stretches Covington’s actual testimony too

far. Covington testified that Freeman told him that Freeman fired Plaintiff because Freeman “felt

like Mr. Howard had lied to him” about whether Plaintiff would “pursue the CEO job” [Doc. 20

at 19 (Covington Dep. 15:16016:10)]. In Covington’s opinion, “Freeman fired [Plaintiff] to

protect Dr. Khatri and make sure she got the CEO position” [Doc. 20 at 25 (Covington Dep. 41:19-

42:1)]. Covington, however, was not part of the decision to terminate Plaintiff and did not learn

of the decision until after the termination [Doc. 12 at 77 (Howard Dep. 60:2-24); Doc 20 at 18-19

(Covington Dep. 14:23-15:5)]. And this is not sufficient to establish pretext for sex discrimination.

Third, Plaintiff argues that he received a positive performance review shortly before his

termination [See Doc. 20 at 13, 47 (Howard Dep. 63:11-19)]. If Defendant terminated Plaintiff

for poor performance, then this evidence might tend to show pretext. But Freeman did not profess

to terminate Plaintiff based on poor performance [See Doc. 12 at 51 (Termination Letter)]. Instead

he relied on dissention among staff, distrust, and the desire for a harmonious and productive work

environment [See id. (Termination Letter)]. Accordingly, a jury could not reasonably conclude

that the stated reasons were pretext for unlawful sex discrimination. See Chen v. Dow Chem. Co.,

580 F.3d 394, 400 (6th Cir. 2009).4

Freeman took actions that may give one pause, but Title VII is not a “general civility code

for the American work place.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).

And it does not license the Court to punish all unprofessional conduct in the workplace, only

“discriminat[ion] . . . because of . . . sex.” See id. (emphasis added). Accordingly, the Court

grants Defendant summary judgment on Plaintiff’s sex discrimination claims.

B. Defendant Is Entitled To Summary Judgment On Plaintiff’s Retaliation Claims.

Under both Title VII and the THRA, an employee may bring an action against an employer

for retaliating against the employee for opposing a discriminatory practice. 42 U.S.C. § 2000e-

3(a); Tenn. Code Ann. § 4-21-301(a). These claims are evaluated identically under Title VII and

the THRA. See Kirkland v. City of Maryville, 54 F.4th 901, 911 (6th Cir. 2022). The familiar

McDonnell Douglas framework applies here too because Plaintiff relies only on circumstantial

evidence.

4 Plaintiff’s claim is not saved by his wholly undeveloped assertion that Freeman was acting as

“cat’s paw” for Khatri [See Doc. 20 at 10]. An employer is liable under a “cat’s paw” theory “if a

supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor

to cause an adverse employment action,” and “that act is a proximate cause of the ultimate

employment action[.]” Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 351 (6th Cir. 2012)

(alterations in original) (quoting Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011)). Khatri was

not Plaintiff’s supervisor, nor did Plaintiff offer a shred of evidence that she harbored a

discriminatory animus against males.

To establish a prima facie claim for retaliation Plaintiff must show that (1) he engaged in a

protected activity, (2) Defendant knew of his conduct, (3) Defendant took an adverse employment

action against him after his protected conduct, and (4) there was a causal connection between the

exercise of Plaintiff’s protected right and the adverse action. See Wehrly v. Allstate Ins., No. 23-

5736, 2024 WL 1308245, at *4 (6th Cir. May 27, 2024) (citing Montell v. Diversified Clinical

Servs., Inc., 757 F.3d 497, 504 (6th Cir. 2014)). Establishing an adverse employment action in a

retaliation context is “less onerous” than in a discrimination action. Michael v. Caterpillar Fin.

Servs. Corp., 496 F.3d 584, 595-96 (6th Cir. 2007). However, proving causation is more difficult

because “Title VII retaliation claims must be proved according to traditional principles of but-for

causation.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).5

Here, Plaintiff can establish the first three prongs of the prima facie case as they relate to his

post-termination attempt to become CEO. Defendant agrees that Plaintiff’s November 22, 2021

letter to the Board characterizes his termination as an instance “of sex discrimination[]” that

Plaintiff opposed. [See Doc. 12 at 20]. Although Plaintiff has not shown that his termination

equates to discrimination based on his sex, “[a] person opposing an apparently discriminatory

practice . . . must only have a good faith belief that the practice [of which he or she complains] is

unlawful.” See Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501, 511 (6th Cir. 2016) (quoting

5 Defendant moved for summary judgment on Plaintiff’s claim for (1) retaliatory discharge and

(2) retaliation in connection with his post-termination attempt to become CEO. Either Plaintiff

did not intend to bring a retaliatory discharge claim or he has abandoned any such claim because

he did not respond to this portion of Defendant’s Motion [See Doc. 12 at 18-19]. Even if Plaintiff

intended to, and did, bring a retaliatory discharge claim, Defendant is entitled to summary

judgment. Plaintiff’s November 22, 2021 letter was the first time he “expressed the belief that Dr.

Freeman was discriminating on the basis of sex” [Doc. 12 at 73 (Howard Dep. 37:6-25; 38:1-8)].

This protected activity could not be the cause of his termination, which occurred twenty-one (21)

days earlier. See Hymes v. Dep’t of the Air Force, No. 23-3210, 2024 WL 1024951, at *4 (6th Cir.

Feb. 12, 2024).

Booker v. Brown & Williamson Tobacco Co. 879 F.2d 1304, 1312-13 (6th Cir. 1989)). Plaintiff

demonstrated such a belief [See Doc. 20 at 43 (Howard Dep. 34:6-10)]. And members of the Board

were aware of Plaintiff’s letter [See, e.g., Doc. 12 at 64 (11/30/2021 Sirianni Email)]. Moreover,

the Search Committee’s decision not to interview Plaintiff and Board’s decision not to hire him

are adverse employment actions that occurred after the Board received his letter. See Kirilenko-

Ison v. Bd. of Educ. of Danville Indep. Sch., 974 F.3d 652, 664 (6th Cir. 2020) (failure to rehire);

Williams v. Nashville Network, 132 F.3d 1123, 1132 (6th Cir. 1997) (failure to interview).

Plaintiff, however, fails to establish a causal connection between his letter and Defendant’s

decision not to interview him or hire him as CEO. “[T]emporal proximity considered with other

evidence of retaliatory conduct” may be sufficient to establish that protected activity was the but-

for cause of an adverse action. See Little v. BP Expl. & Oil Co., 265 F.3d 357, 364 (6th Cir. 2001).

But “[t]emporal proximity on its own is usually not sufficient.” Zandvakili v. Univ. of Cincinnati,

No. 23-3396, 2024 WL 278548, at *8 (6th Cir. Jan. 25, 2024) (citing Kenney v. Aspen Techs., Inc.,

965 F.3d 443, 448 (6th Cir. 2020)). For temporal proximity to stand alone, the adverse action

generally must be “taken just days or weeks from when the employer learns of the employee’s

protected activity.” See George v. Youngstown State Univ., 966 F.3d 446, 460 (6th Cir. 2020).

Here, Plaintiff must show more than temporal proximity to succeed. The Search Committee

started its search with the in-house candidate, Khatri, and agreed to interview additional candidates

if the Search Committee was not satisfied with the in-house candidate [See Doc. 12 at 59

(12/13/2021 Knight Email to the Search Committee)]. So, the decision not to interview or rehire

Plaintiff occurred on the day the Search Committee recommended and then the Board approved

Khatri to replace Freeman—on January 25, 2022. [See id. at 32 (01/25/2022 Board Meeting

Minutes at 1); see also id. at 36 (Knight Aff. ¶¶ 4, 7-8)]. That was sixty-four (64) days after

Plaintiff sent his letter to the Board. This, alone, is not enough to establish causation. See

Zandvakili, 2024 WL 278548, at *9; Williams v. Memphis Light, Gas & Water, No. 23-5616, 2024

WL 3427171, at *9 (6th Cir. July 16, 2024).6

The only “other evidence” Plaintiff marshals is the email from Board Member Sirianni

recommending that the Board turn the matter over to in house counsel after Plaintiff threatened

legal action [See Docs. 20 at 13; 12 at 64 (11/30/2021 Sirianni Email)]. But Sirianni was not on

the Search Committee, and she was only one vote in the unanimous decision to elevate Khatri to

CEO. [See id. at 64-65 (11/30/2021 Sirianni Email); see also id. at 36 (Knight Aff. ¶ 2)]. Without

offering more, Plaintiff fails to show that his complaint of sex discrimination was the but-for cause

of (1) the Search Committee’s decision not to interview and recommend him or (2) the Board’s

decision not to hire Plaintiff as CEO. See Zandvakili, 2024 WL 278548, at *8 (“[C]ollective

decision-making is less susceptible to influence by an individual with a retaliatory motive.”

(quoting Strong v. Univ. Healthcare Sys., LLC, 482 F.3d 802, 806 n.2 (5th Cir. 2007)).

Further, even if Plaintiff made his prima facie case, at step two, Chairman Knight, on behalf

of Defendant, gave two reasons why he chose not to interview Plaintiff [See Doc. 12 at 96 (Knight

Dep. 17:2-10)]. First, Plaintiff “had been terminated” and Knight “trusted that Dr. Freeman would

not discharge someone for no reason” [See id. at 96 (Knight Dep. 17:9-10; 18:1-2)]. Second,

Knight wished to interview Khatri first and was “favorably impressed with her” [See id. at 36

6 Plaintiff argues that the Court should assess temporal proximity starting on the date Chairman

Knight recommended that the Search Committee interview Khatri before “conduct[ing] a big

nationwide search” [See Doc. 20 at 13; see also Doc. 12 at 59 (12/13/2021 Knight Email to the

Search Committee)]. But merely deciding to interview Khatri first and then, if necessary,

interview other candidates is not an adverse action. See George, 966 F.3d at 460 (stating the

relevant temporal connection is between the date “when the employer learns of the employee’s

protected activity” and the “adverse action”). And the record does not show that the Search

Committee decided not to interview Plaintiff before January 25, 2022.

Knight Aff. ¥ 5)]. These are nondiscriminatory reasons. See Smyer v. Kroger Ltd. P’ship I, No.

22-3692, 2024 WL 1007116, at *4 (6th Cir. Mar. 8, 2024); see also Jackson, 999 F.3d at 350.

Defendant acted in accordance with its “succession plan” by giving “strong consideration” “to an

in-house candidate” and ultimately hired from within [See Doc. 12 at 32-34 (01/25/2022 Board

Meeting Minutes at 1-3); see also id. at 59 (12/13/2021 Knight Email to the Search Committee)].

Both the Search Committee and the Board were so impressed with Khatri, that the search ended

[See id. at 32-34 (01/25/2022 Board Meeting Minutes at 1-3)].

With the burden shifting back to Plaintiff, at step three, he has not attempted to show any

evidence indicating that Defendant’s stated reasons were a pretext for retaliation. And upon the

Court’s review, there is no evidence that would permit a jury to infer that Defendant “made up its

reason to conceal intentional discrimination” based on Plaintiff’s protected activity. See Chen, 580

F.3d at 400 n.4. This too is independently fatal to Plaintiff's claims. Accordingly, the Court grants

Defendant summary judgment as to Plaintiff's claims for post-termination retaliation.

IV. Conclusion

For the reasons stated above the Court GRANTS Defendant Cherokee Health Systems’s

Motion for Summary Judgment [Doc. 11] and DISMISSES this action. An appropriate judgment

shall enter.

SO ORDERED.

United States District Judge

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