Lewis-Smith v. Sumner County Government Board of Commissioners & Officers

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

CHERYL LEWIS-SMITH, )

Plaintiff, )

)

v. ) Civil Action No. 3: 23-cv-01248

) Judge Richardson / Frensley

SUMNER COUNTY GOVERNMENT )

BOARD OF COMMISSIONERS, et al, )

Defendants. )

REPORT AND RECOMMENDATION

This fee-paid, pro se employment discrimination action is before the Court on defendant’s

motion for summary judgment. Docket No. 14. The motion is fully briefed and ready for

disposition. After reviewing the record and the briefs, the undersigned recommends that

defendant’s motion be granted in its entirety, and the action be dismissed.

I. BACKGROUND

Plaintiff Cheryl Lewis-Smith, who is African American, is the former director of the

Sumner County, Tennessee, Human Resources (HR) Department. She filed this suit after the

elimination of her position with the department. Docket No. 1. In her pro se form Complaint,

Plaintiff asserts the County defunded the HR Department budget for 2023-2024 without proper

notification to prepare accordingly and that no severance was provided. Docket No. 1, p. 5.

Plaintiff checks the boxes and asserts claims under Title VII of the Civil Rights Act of 1964, (Title

VII), the Age Discrimination in Employment Act (ADEA), the American with Disabilities Act

(ADA), the Family Medical Leave Act (FMLA), as well as the Genetic Information

Nondiscrimination Act of 2008 (GINA), the Tennessee Whistleblower Statute, and for retaliation.

Id. She seeks, among other things, one million dollars ($1,000,000.00) in damages.

In addition to the Sumner County Government Board of Commissioners and Directors,

Plaintiff initially named as defendants John C. Isbell, County Mayor; Eric Sitler, Law Director;

and David Lawing, County Financial Director. By order dated April 24, 2024, the district judge

dismissed the individually named defendants from the action. Docket No. 12. The court dismissed

Plaintiff’s claims against the individual defendants under Title VII, the ADA, and the ADEA, and

all claims under the FMLA, the Whistleblower statute, and for retaliation. Docket No. 11, p. 5-7.

Sumner County now moves for summary judgment on all remaining claims. In support of

its motion, the County submitted excerpts of Plaintiff’s deposition; a Statement of Undisputed

Material Facts; the sworn declaration of Kimberly White, County Claims Manager; Plaintiff’s

Employment Agreement with the County; correspondence informing Plaintiff of her discharge;

her Separation Notice; Tennessee Department of Labor Employee Termination/Separation notice;

and EEOC documents. Docket Nos. 15-16 and attached exhibits.

Plaintiff opposes the motion but has submitted no factual evidence in support. Docket No.

21.

The evidence proffered by the County reveals the following. The Sumner County HR

Department, as well as its Director Position, were established in 2021. Docket No. 15-1, p. 5-6;

Docket 15-2, p. 2. Kimberly White, Claims Manager, attested in her declaration that in August

2021 Sumner County eliminated its Risk Management Department and created an HR department

headed by Plaintiff. During that time, Sumner County split the human resources duties between

its Law Department and its Finance Department. Docket No. 15-2, p. 2. In 2023, the County

eliminated its HR Department. After eliminating the HR Department, the County resumed splitting

the human resources work between its Law Department and Finance Department. When the HR

Department was dissolved, White moved to a different department, continuing to handle risk

management duties but no longer performing HR functions. White was not aware of Sumner

County utilizing genetic information in making employment decisions. Nor was she aware of it

requesting, requiring, or purchasing genetic information about its current or potential employees.

Id., p. 3.

By its terms, Plaintiff’s Employment Agreement (Agreement) with the County began on

June 13, 2022, and ended on June 30, 2023. Docket No. 15-1, p. 39. Section 3 of the Agreement

provides: “[a]t the end of the terms of this Agreement, Employee shall remain as an employee at

will unless the Agreement is ended pursuant to these terms or renewed for an additional term.” Id

at p. 39. Sections 6 and 8 of the Agreement provide for a separation payment and a buyout,

respectively, if the County took an adverse employment action against Plaintiff before her

Employment Agreement terminated. Id, at p. 40.

In hand-delivered correspondence dated July 3, 2023, John Isbell, County Mayor, informed

Plaintiff that “[t]he Sumner County Board of Commissioners [had] made the decision to eliminate

the [County’s] Human Resources [Department] and reassign the job tasks. The funding for the

office ended on June 30, 2023, and [Plaintiff’s] position has been eliminated.” Id, at p. 32.

Plaintiff testified to the following at her deposition. Docket No. 15-1. In light of the

defunding of the Department, the County should have been able to place her into a new position

as they did with Kimberly White. Docket No. 15-1, p. 12. White kept her position and was placed

in a different department while she was not. Id.

Plaintiff objected or refused to provide answers to the following questions: (1) the reasons

she believes Sumner County discriminated against her based on race; (2) the identity of any

specific individual who discriminated against her because of her race, color, gender, sex, religion,

or national origin; (3) the nature of her alleged disability and whether she had ever requested

accommodation for it; and (4) whether she had ever undergone genetic testing and if such

information was ever disclosed to the County. Docket No. 15-1, pp. 13-19.

When asked the basis for her belief that the County discriminated against her based on her

race, Plaintiff responded, “I have listed the information. I have outlined the information in my

complaint”; “I have listed the information, and I have clarified the information in my response.”;

“I refuse to answer because the information is clearly listed in the complaint and in my responses.”

Id., pp. 13-14.

When asked to name a specific individual who discriminated against her on the basis of

race and color, Plaintiff testified: “I am not – I have not listed anything outside of what is in this

complaint”; “I – I am not – I have listed everything accordingly, in my response”; “I have listed

the information in my complaint”; “I have listed the information.ꞏ Upon this becoming a court

documented trial, at that time, if I need to move forward with the proper interrogatories and the

information, when I have counsel to clearly be able to facilitate understanding -- again, I repeat, I

am pro se.ꞏ And what is listed in my complaint is what is in my complaint.” Docket No. 15-1, pp.

14-15.

When asked to name any specific individual who discriminated against her based on her

gender and sex, Plaintiff testified: “I have included my information in my response and in the

complaint”; I have not said I cannot identify. I am not moving forward with any additional

information because this is not a trial.” Id., pp. 15-16.

During her deposition, when asked to identify a specific person who discriminated against

her because of her religion, Plaintiff testified: “I have identified my complaint. I have provided

information. Again, if we are in a trial, we will move forward with the proper protocol. So, my

complaint is my complaint, as pro se.” Id., p. 16.

When Plaintiff was asked whether she could identify a specific person who discriminated

against her based on national origin, she responded as follows: “I am going to identify -- I did not

say that I cannot identify. It is in my complaint.” Docket No. 15-1, pp. 17-18.

When Plaintiff was asked in her deposition if she could identify a specific person who

discriminated against her based on her disability, she responded: “I am not saying I can identify. I

am not saying I cannot. My basis is clearly denoted in my response and the complaint, as pro se.”

Id., pp. 17-18.

When asked whether she ever requested an accommodation for her alleged disability from

the County, Plaintiff testified, “Objection. I refuse to answer the question because you're subjective

-- you're subjecting -- it -- no, I won’t -- I -- I object.” Id., p. 18. When asked why she believes she

was discriminated against because of her disability, Plaintiff responded: “It is in my complaint.”

Id. When Plaintiff was asked to describe the nature of her disability, the duration of her disability,

and how the disability affects her work and activities of daily living, she responded: “It is in my

complaint, but I object to that reasoning because of confidentiality and HIPAA.” “I object to that

line of questioning.” “I object to that question.” “I object to that question.” Id., p. 18.

When asked whether her genetic information was provided to Sumner County, Plaintiff

testified: “I object to that question. Any information that has been provided is in the response or

the complaint or the -- the actual response.” Id., p. 18. When further asked how Sumner County

discriminated against her based on genetic information, Plaintiff testified: “I object to that

question. I repeat, the answers are in the response and in the complaint, as pro se. Upon this going

into trial, the appropriate counsel will be assigned to be able to help defer or move forward as far

as -- or delineate that information. I am pro se.” Id., p. 19. Upon being asked to identify a specific

person who discriminated against her based upon her genetic information, Plaintiff testified: “I

object to your question. I repeat, I am pro se. The information has been listed in the complaint and

the response.” Id., p. 19.

Plaintiff’s direct supervisors were Anthony Holt, then County mayor, and his successor,

John Isbell. Docket No. 15-1, p. 7. Plaintiff and Kimberly White did not share the same

supervisor, and their job duties were distinct. Id., pp. 7-8, 19-20. Plaintiff finally testified that

budget constraints were a legitimate reason for the County to eliminate its HR department, that the

HR Director position she held was an exempt FLSA position, and that the County compensated

her properly. Id. pp. 6, 10.

II. LAW AND ANALYSIS

Rule 56 requires the court to grant a motion for 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). If a moving defendant shows that there is no genuine issue

of material fact as to at least one essential element of the plaintiff's claim, the burden shifts to the

plaintiff to provide evidence beyond the pleadings, “set[ting] 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); see

also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “In evaluating the evidence, the court

must draw all inferences in the light most favorable to the non-moving party.” Moldowan, 578 F.

3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

At this stage, “ ‘the judge's function is not ... to weigh the evidence and determine the truth

of the matter, but to determine whether there is a genuine issue for trial.’ ” Id. (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249, (1986)). But “[t]he mere existence of a scintilla of

evidence in support of the [non-moving party's] position will be insufficient,” and the party's proof

must be more than “merely colorable.” Anderson v. Liberty Lobby, 477 U.S. 242, 249, 252 (1986).

An issue of fact is “genuine” only if a reasonable jury could find for the non-moving party.

Moldowan, 578 F. 3d at 374 (citing Anderson, 477 U.S. at 252).

Pro se complaints are to be held to less stringent standards than formal pleadings drafted

by lawyers and therefore should be liberally construed. Williams v. Curtin, 631 F. 3d 380, 383 4

(6th Cir. 2011). Pro se litigants, however, are not exempt from the requirements of Federal Rules

of Civil Procedure. Wells v. Brown, 891 F. 2d 591, 594 (6th Cir. 1989). The Court is not required

to create a claim for a plaintiff. Clark v. Nat’l Travelers Life. Ins. Co., 518 F. 2d 1167, 1169 (6th

Cir. 1975); see also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011)(a court cannot

create a claim that a plaintiff has not spelled out in his pleading); Payne v. Sec’y of Treas., 73 F.

App’x 836, 837 (6th Cir. 2003)(affirming sua sponte dismissal of complaint pursuant to Fed. R.

Civ. P. 8(a)(2), stating “[n]either this court nor the district court is required to create [plaintiff’s]

claim for her”). To demand otherwise would require the “courts to explore exhaustively all

potential claims of a pro se plaintiff, [and] would also transform the district court from its

legitimate advisory role to the improper role of an advocate seeking out the strongest arguments

and most successful strategies for a party.” Beaudett v. City of Hampton, 775 F. 2d 1274, 1278

(4th Cir. 1985).

Local Rule 56.01(c) requires a plaintiff’s response to include a “Response to Statement of

Facts” that responds to each fact enumerated in defendant’s Concise Statement of Undisputed

Facts. Local Rule 56.01(c) (“[T]he non-movant must make a response to each fact set forth by the

movant immediately below each fact set forth by the movant. Such response must be filed with

the papers in opposition to the motion for summary judgment.”). Plaintiff has failed to do so. As

Plaintiff failed to respond to the County’s Statement of Undisputed Facts, each such Fact is deemed

admitted. Consequently, the court deems the County’s asserted facts undisputed for purposes of

summary judgment. Local Rule 56.01(f).

A. Title VII

To establish a prima facie case of racial discrimination, a plaintiff must demonstrate that:

(1) she was a member of a protected class; (2) she suffered an adverse employment action; (3) she

was qualified for the position; and (4) a person outside of the protected class was treated more

favorably than she. Clay v. United Parcel Serv., Inc., 501 F. 3d 695, 706 (6th Cir. 2007).

A plaintiff whose employment position is eliminated in a reorganization or work force

reduction carries a heavier burden in supporting charges of discrimination than does an employee

discharged for other reasons. Ridenour v. Lawson Co., 791 F. 2d 52, 57 (6th Cir. 1986). As long

as employers do not act with discriminatory intent, they may eliminate positions in the name of

economic necessity or efficiency, even when those positions are held by more senior workers. See

Barnes v. GenCorp Inc., 896 F. 2d 1457, 1469 (6th Cir. 1990) (ADEA case; an employer has no

duty to permit an employee to transfer to another position or displace workers with less seniority

when the employee's position is eliminated as part of a work force reduction.).

The County admits the first three elements for a prima facie case are established, but argues

Plaintiff cannot establish the fourth element, that she was treated less favorably than a similarly

situated individual outside of her protected class. Docket No. 15, p. 5. The undersigned agrees.

At her deposition, Plaintiff contended Kimberly White received preferential treatment over

her following dissolution of the HR department. She argues that following dissolution of the HR

department, White was assigned to a similar position in a different department while she was not.

Plaintiff and White were not similarly situated, however. As HR Director, Plaintiff’s direct

supervisor was Anthony Holt, then County Mayor. Docket No. 15-1, p. 7. White reported directly

to Plaintiff, and their job responsibilities were distinct. Id., pp. 7-8. See, McMillan v. Castro, 405

F. 3d 405, 414 (6th Cir. 2005) (whether employees dealt with the same supervisor is relevant in a

particular case depends on the facts presented.). In 2021, after the County eliminated the Risk

Management Department, White transitioned to the newly formed HR Department led by Plaintiff

as a claims manager. Docket No. 15-2, pp. 2-3. In that role, White’s duties remained largely the

same, with the addition of some HR responsibilities. Id. When the HR Department was dissolved

in 2023, White transferred to a different department and returned to her title of claims manager

where she continued to performed risk management duties and no longer performed the HR

functions she had assumed in 2021. Docket 15-2, p. 3. The evidence therefore demonstrates that

since the dissolution of the HR Department, White has been performing different job duties in a

different department. As Plaintiff and White were not similarly situated, she fails to establish the

fourth element for her prima facie Title VII case.

Moreover, the County presented evidence that the dissolution of Plaintiff’s position was

due to budgetary reasons, not discrimination. Docket No. 15-1, pp. 32, 37-38. Plaintiff testified at

her deposition that budget limitations were a legitimate reason for the elimination of her position.

Docket No. 15-1, p. 10. As the County had a legitimate, nondiscriminatory reason for her

discharge, summary judgment is appropriate.

B. Americans with Disabilities Act (ADA)

In her Complaint, Plaintiff specified a heart condition, meningioma, and spondylosis, as

her disabilities. Docket No. 1, p. 4. To establish a prima facie case of disability discrimination, a

plaintiff must show: (1) she is disabled; (2) she is otherwise qualified for the position, with or

without reasonable accommodation; (3) she suffered an adverse employment decision; (4) the

employer knew or had reason to know of the plaintiff's disability; and 5) the position remained

open while the employer sought other applicants or the disabled individual was replaced. Macy v.

Hopkins Cnty. Sch. Bd. of Educ., 484 F. 3d 357, 365 (6th Cir. 2007) (quotation omitted).

At her deposition, Plaintiff objected to or refused to answer any questions related to her

alleged disability. Docket No 15-1, pp. 17-18. As a result, there is no factual support that Plaintiff

has a disability, that the County was aware of her alleged disability, or that she ever requested an

accommodation. Nor is there any evidence she was treated less favorably than a similarly situated,

non-disabled employee. Even if similarly situated employees existed within the HR Department,

their positions, like Plaintiff's, were dissolved due to a reduction in force due to budget constraints

rather than any discriminatory motive. Terre v. Hopson, 708 F. App’x 221, 225 (6th Cir. 2017)

(eliminating a position due to budget limitations is a legitimate, nondiscriminatory reason.).

Because Plaintiff has failed to establish any elements of a prima facie case, the County is entitled

to summary judgment on Plaintiff’s ADA claim.

C. Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act (FLSA) requires employers to pay overtime for employees

who work more than forty hours in any work week. 29 U.S.C. § 207(a)(1). The position description

for the HR Director, the position that Plaintiff held, states that the position is exempt based on the

FLSA. Docket No. 15-1, p. 35. Moreover, Plaintiff testified at her deposition that her position

was an FLSA exempt position, and that the County compensated her properly. Id., pp. 6, 10.

Section 13(a)(1) of the FLSA, codified at 29 U.S.C. 213(a)(1), exempts any employee employed

in a bona fide executive, administrative, or professional capacity or in the capacity of outside

salesman. Human resources managers meet the requirements for the administrative exemption. See

29 C.F.R. § 541.203(e) (human resources managers who formulate, interpret, or implement

employment policies “generally meet the duties requirements for the administrative exemption.”).

Accordingly, Plaintiff’s FLSA claims against the County fail as a matter of law.

D. Equal Pay Act (EPA)

The Equal Pay Act (EPA) prohibits employers from paying an employee at a rate less than

that paid to an employee of the opposite sex for performing equal work. Beck–Wilson v. Principi,

441 F. 3d 353, 359 (6th Cir. 2006). To establish a prima facie case of wage discrimination under

the EPA, a plaintiff must show that an employer pays different wages to employees of opposite

sexes for equal work on jobs the performance of which requires equal skill, effort, and

responsibility, and which are performed under similar working conditions. Id. (quotation omitted).

Proof of discriminatory intent is not required to establish a prima facie case under the EPA. Id. at

360. Once the plaintiff establishes a prima facie case, the defendant must “prove” that the wage

differential is justified under one of the four affirmative defenses set forth under § 206(d)(1) of the

Equal Pay Act: (1) a seniority system; (2) a merit system; (3) a system which measures earnings

by quantity or quality of production; or (4) any other factor other than sex.” Buntin v. Breathitt

Cnty. Bd. of Educ., 134 F. 3d 796, 799 (6th Cir. 1998). “[A] defendant bears both the burden of

persuasion and production on its affirmative defenses.” Beck–Wilson, 441 F. 3d at 364–65.

Finally, if the defendant proves an affirmative defense, the plaintiff “must come forward with

evidence demonstrating the existence of a triable issue of fact” regarding pretext. Timmer v.

Michigan Dep't of Commerce, 104 F. 3d 833, 844 (6th Cir. 1997).

Plaintiff’s EPA claim fails because she has presented no evidence the County paid her less

than a male counterpart for equal work. There is no factual support-- nor does the Complaint even

allege--facts to support Plaintiff’s claim. As noted earlier, Plaintiff testified that the County

compensated her properly. Accordingly, Sumner County is entitled to summary judgment on

Plaintiff’s EPA claim.

E. Genetic Information Act (GINA)

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from

requesting, requiring, or purchasing genetic information with respect to an individual or family

member of the individual subject to certain exceptions. 42 U.S.C. § 2000ff §2(b).

Plaintiff has presented no evidence that supports the contention that the County ever

requested, required, or purchased her genetic information. Cf. Taylor v. Vanderbilt Univ., No. 23-

5283, 2023 WL 109472192023 (6th Cir. Nov. 1, 2023) (affirming Rule 12(b)(6) dismissal of

GINA claim because nothing in the Complaint suggested plaintiff was subjected to a genetic test

or that her employer was provided with the results of a test). At her deposition, Plaintiff refused

to answer whether the County subjected her to genetic testing or whether her genetic information

was provided to the County. Docket No. 15-1, p. 18. Additionally, Kimberly White attested that

that she was not aware of the County utilizing, requesting, requiring, or purchasing genetic

information about current or potential employees. Docket No. 15-2, p. 3. Accordingly, Sumner

County is entitled to summary judgment on Plaintiff’s GINA claim.

III. CONCLUSION

Based on the foregoing, the undersigned recommends that Sumner County’s motion for

summary judgment (Docket No. 14) be GRANTED and the claims against it be DISMISSED.

Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days

after service of this Report and Recommendation in which to file any written objections to this

Recommendation with the District Court. Any party opposing said objections shall have fourteen

(14) days after service of any objections filed to this Report in which to file any response to said

objections. Failure to file specific objections within fourteen (14) days of service of this Report

and Recommendation can constitute a waiver of further appeal of this Recommendation. See

Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1);

Fed. R. Civ. P. 72.

JEFFERY S. FRENSLEY S

United States Magistrate Judge

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