Morgan

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

______________________________________________________________________________

DAMIEN J. MORGAN,

Plaintiff,

v. Case No. 2:23-cv-2744-MSN-cgc

JURY DEMAND

MEMPHIS LIGHT, GAS & WATER,

Defendant.

______________________________________________________________________________

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

______________________________________________________________________________

Following an altercation with his supervisor, Plaintiff, Damien J. Morgan, was suspended

and then fired by his employer, Defendant Memphis Light, Gas & Water (“MLGW”). Defendant

says it took these actions due to Plaintiff’s violations of its workplace policies and the terms of

previous disciplinary action to which Plaintiff was still subject. But Plaintiff asserts that his

termination was the culmination of years of discriminatory treatment during his employment with

Defendant. After filing a charge with the Equal Employment Opportunity Commission and

receiving a “Right to Sue” letter, Plaintiff filed this lawsuit against his former employer.

Defendant now seeks summary judgment on all Plaintiff’s claims. (ECF No. 63,

“Motion.”) Plaintiff responded in opposition (ECF No. 67), and Defendant filed a reply (ECF No.

71). For the reasons explained below, Defendant’s Motion is GRANTED.

BACKGROUND

The following facts are undisputed unless noted otherwise. Defendant MLGW is a

municipal utility service that the City of Memphis owns, operating it as a division of the city. (ECF

No. 1 at PageID 3.) Plaintiff Damien Morgan is an African American male. (ECF No. 67-1 at

PageID 469.) Defendant hired Plaintiff in 2008 as a Meter Reader, and it promoted him to a

Facilities Locator position with the Construction Services/Facilities Locate division in 2016. (Id.)

On August 1, 2023, Defendant terminated Plaintiff. (ECF No. 67-1 at PageID 489; ECF No. 71-6

at PageID 1062.)

During the period at issue, Plaintiff’s direct supervisors were Foreman Michael Matthews

(white male) and Inspector Martin Jarrett (black male). (ECF No. 67-1 at PageID 471, 477; ECF

No. 71-6 at PageID 1062.) Matthews and Jarrett reported to Stacey Blakney (white male), who

was the General Supervisor over the Construction Services/Facilities Locate division. (ECF No.

67-1 at PageID 471; ECF No. 71-6 at PageID 1062.) Blakney in turn reported to Gregory Deaton

(white male), who was the Manager of Electric Construction and Maintenance until he retired in

October 2023. (ECF No. 67-1 at PageID 472; ECF No. 71-6 at PageID 1062.)

Several incidents underlie all Plaintiff’s claims. First, in May 2021, Blakney denied

Plaintiff’s request for a new work vehicle. (ECF No. 67-1 at PageID 472.) The new vehicle was

instead assigned to Jason Ocampo (white male), even though Plaintiff was a more senior Locator.

(Id. at PageID 472–73.) Defendant admits that “trucks had previously been granted based on

seniority,” but says that Blakney overrode this policy because, at that time, Ocampo’s existing

truck had been totaled in a collision. (Id. at PageID 472–73.) Plaintiff filed a grievance with the

Union1 challenging Blakney’s decision on June 8, 2021. (Id. at PageID 473.) The Union’s “Step

Two Response” to Plaintiff’s grievance found that there was no violation of the Union’s MOU.

1 Throughout his employment with MLGW, Plaintiff was a member of the International

Brotherhood of Electrical Workers, Local 1288 (“Union”). As a member, Plaintiff was entitled to

submit grievances through Union representatives for any events he believed violated the Union’s

Memorandum of Understanding (“MOU”) with MLGW. (ECF No. 67-1 at PageID 469.)

(Id. at PageID 473–74.) Although the grievance was resolved by settlement on June 17, 2021,

Plaintiff still asserts that his vehicle request was denied in part because of his race. (Id.)

The second incident occurred a little over a year later in the fall of 20222 when Plaintiff

was denied participation in Defendant’s Foreman Development Program. That program allows

Locators to be trained to work as Foremen and accrue skills that could make them eligible for

promotion. (ECF No. 67-1 at PageID 474.) Employees do not apply for the program but are

appointed by their supervisors. (Id.) Eligible candidates are evaluated and chosen based on six

factors: leadership skills, attendance, safety, discipline, potential as a successful candidate, and

quality of work. (Id.) Plaintiff expressed interest in the program to his direct supervisors, Jarrett

and Matthews, and their supervisor, Blakney, who recommended employees for the program to his

supervisor, Deaton, who was ultimately responsible for selecting employees for the program. (Id.

at PageID 474–76; ECF No. 71-6 at PageID 1065–67.)

Blakney recommended Ocampo for the program and did not recommend Plaintiff.3 (ECF

No. 67-1 at PageID 476.) According to Blakney, Plaintiff was not qualified for the program due

to his insufficient ticket completion rate, poor attendance, and Blakney’s assessment that Plaintiff

required “significant oversight” and “had not demonstrated the leadership skills expected of a well-

2 The record is slightly inconsistent about the exact dates when Plaintiff sought and was

denied admission to the Foreman Development Program. In his response to Defendant’s Statement

of Undisputed Material Facts, Plaintiff admits Defendant’s assertion that this event occurred in

“late September/early October 2022.” (ECF No. 67-1 at PageID 474.) And that is mostly

consistent with Plaintiff’s Complaint, which alleged that he approached his supervisors in

September 2022. (ECF No. 1 at PageID 4.) In his response, however, Plaintiff says that he sought

admission to the program in December 2022, (ECF No. 67-1 at PageID 476), and he also described

the event as taking place “in late 2022,” which Defendant then admitted. (ECF No. 71-6 at PageID

1065.)

3 It is unclear if the number of spots in the program was limited. Plaintiff’s descriptions

imply only one spot was available, and Defendant did not directly respond to that description. (See

ECF No. 71-6 at PageID 1067 (asserting Ocampo received “the sole FD slot”).)

qualified candidate.” (Id. at PageID 475–76; ECF No. 71-6 at PageID 1067–68.) Plaintiff contests

Blakney’s reasoning. Plaintiff points out that his performance evaluations—which were approved

by Blakney—consistently rated him “Effective,” with no documented deficiencies regarding work

output, attendance, or supervision, which Blakney acknowledged in his deposition. (ECF No. 71-

6 at PageID 1067–68; ECF No. 67-1 at PageID 476; ECF No. 67-3 at PageID 582–83.)

According to Plaintiff, Blakney also told him that his 2019 Condition of Continued

Employment Agreement (“COCEA”) was another factor that led Blakney to conclude Plaintiff was

not qualified for the program. (ECF No. 67-5 at PageID 741–42; ECF No. 71-6 at PageID 1066–

67.) The COCEA was issued following Plaintiff’s dispute with a coworker on February 7, 2019.

(ECF No. 67-1 at PageID 470.) According to MLGW, during the interaction with his coworker,

Plaintiff “used racial slurs and engaged in aggressive, confrontational conduct”; Plaintiff denies

that his conduct was “egregious” or violent. (Id.) Defendant, however, found that Plaintiff’s

language and behavior violated several policies, including its Workplace Violence Policy, and

Plaintiff was suspended for nine days, required to undergo counseling, and placed on probation

until March 1, 2024. (Id. at PageID 470–71; ECF No. 63-6 at PageID 336.) The COCEA also

provided that Plaintiff would be terminated immediately if he engaged in “intimidating, aggressive,

violent, or disrespectful behaviors” in the future, and that the COCEA would remain in Plaintiff’s

employment record and Plaintiff’s actions that led to the COCEA would “be considered in

determining discipline for any future incidents of intimidating, aggressive, violent, or disrespectful

behaviors.” (ECF No. 63-6 at PageID 337.) Plaintiff signed the COCEA on March 1, 2019,

acknowledging and confirming he received the document while noting that he did not agree “with

the content of the document.” (Id.) The COCEA was also signed by William E. Thompson, the

Business Manager for the Union, and Anthony Rosser, Defendant’s Manager of Physical and

Electronic Security. (Id.)

In his Statement of Additional Material Facts, Plaintiff asserts that he “identified additional

comparators: senior black Locators Wink Turner, Darius Townsend, and Shandell—each

reportedly with strong records and no discipline—[who] were also passed over” for participation

in the Foreman Development Program. (ECF No. 67 at PageID 450.) He also alleges that other

Locators had been able to participate in the program previously despite having COCEAs in their

records. (Id.) Specifically, Plaintiff testified that he believes there were two such people. (ECF

No. 67-5 at PageID 744.) But Plaintiff could not recall the names of the individuals or the year

they went through the program. (Id.) He said that one was a white female and the other a man,

but he could not recall his race. (Id.)

Third, in October of 2022,4 Matthews referred to Plaintiff using obscene language during

a phone call about a job assignment. (ECF No. 67-1 at PageID 477–78.) Plaintiff had been

assigned a job that he thought should have been given to a “road crew.” (Id. at PageID 477.)

Plaintiff went to Jarrett with his questions about the job. (Id.) But Jarrett was unable to answer

Plaintiff’s questions, so he called Matthews, who had gone home sick earlier that day. (Id.) Jarrett

4 The record is again inconsistent regarding the precise date of this conversation. Plaintiff

alleges in his Complaint that this occurred “[a]t the end of September 2022.” (ECF No. 1 at PageID

4.) And in his response to Defendant’s Statement of Undisputed Material Facts, he agrees with

Defendant’s assertion that the incident occurred in “late September/early October 2022,” (ECF No.

67-1 at PageID 477), but in his Statement of Additional Material Facts, he says that it occurred on

February 14, 2023, (ECF No. 67 at PageID 452). In its response to Plaintiff’s Statement of

Additional Material Facts, Defendant points out that the February date is incorrect and cites a

Labor Engagement, Diversity & Inclusion Charge of Discrimination (described by Defendant as

Grievance 22-36) that Plaintiff filed on December 8, 2022, which references the incident occurring

on either October 18 or 19, 2022. (ECF No. 71-6 at PageID 1075; ECF No. 63-10 at PageID 408.)

For purposes of summary judgment, the Court finds that the February 14, 2023, date is an

inadvertent typographical error.

told Matthews that Plaintiff thought the job was not properly assigned to him and should have been

assigned to a “road crew” instead. (Id.) Matthews became frustrated and yelled to Jarrett, “Tell

that motherfucker I said go do the job,” which Plaintiff overheard. (Id.) According to Defendant,

Blakney later counseled Matthews on the necessity for professionalism over the phone, which

Blakney described as an entry level form of discipline. (ECF No. 67-1 at PageID 478; ECF No.

71-6 at PageID 1075.) But Plaintiff says that, to his knowledge, Matthews did not receive any

discipline for the incident. (ECF No. 67-5 at PageID 787–88; see ECF No. 67-1 at PageID 478.)

On December 8, 2022, Plaintiff filed a charge of discrimination with Defendant’s Labor

Engagement, Diversity & Inclusion (“LEDI”) department, (ECF No. 63-10, “Complaint No. 22-

36”), citing Matthews’ obscenity in the October 2022 phone call and Plaintiff’s exclusion from the

Foreman Development Program. (ECF No. 67-1 at PageID 478; see also ECF No. 63-10.)

Plaintiff also contends that his work truck was unexpectedly searched sometime “[i]n or

about December 2022.” (ECF No. 67-1 at PageID 478–79.) According to Defendant, mechanics

at its shop told Blakney that Plaintiff’s truck was missing required personal protective equipment.

(Id.) Blakney says that he then directed Freddie Hawkins, a Locator working out of class as an

Inspector, to conduct site visits for as many Locators as he could to ensure that they had the

necessary equipment. (Id. at PageID 479.) The alleged missing equipment was found behind the

back seat of Plaintiff’s truck during the December 18 search. (Id.)

There was also an incident in which Matthews “raised his voice” at several black

employees, including Plaintiff, and although Matthews apologized, he was not disciplined. (ECF

No. 71-6 at PageID 1075.) Plaintiff does not say when this event occurred, but the deposition

testimony cited in support references “the end of 2022.” (Id.; ECF No. 67-4 at PageID 661.)

Several months later, on April 27, 2023, Plaintiff participated in a conflict resolution call

for the internal charge of discrimination he had filed on December 8, 2022 (Complaint No. 22-36);

Plaintiff indicated when he filed the charge that he was willing to resolve it through Defendant’s

internal conflict resolution process. (ECF No. 63-10 at PageID 409.) Participating in that call

were Plaintiff, Deaton, and Renée Daniel, a Representative with Defendant’s LEDI department.

(ECF No. 67-1 at PageID 480; ECF No. 63-11.) That eventually led to a settlement agreement

dated May 11, 2023, and signed by Plaintiff and Deaton on July 6, 2023, in which Defendant’s

management agreed to “communicate to all employees . . . to not use offensive/and or profane

language . . . and adhere to the MLGW policy” regarding civil communications in the workplace.

(ECF No. 63-11; ECF No. 67-1 at PageID 480; ECF No. 71-6 at PageID 1078.) Plaintiff disputes,

however, that the agreement represented a “genuine resolution” to his complaint, asserting that

Deaton “announced no remedial action.” (ECF No. 67-1 at PageID 480.)

As part of the resolution process, Deaton also met with employees of the Facilities Locate

Department on or about May 1, 2023,5 to remind them of Defendant’s workplace communications

policy. (Id. at PageID 480–81.) But Plaintiff alleges that he became the victim of “verbal abuse”

from Deaton during the meeting. (ECF No. 71-6 at PageID 1079; see ECF No. 63-12; see also

ECF No. 67-6 at PageID 947.) According to Plaintiff, after another employee commented that the

civil communications rules “were a waste of time,” Deaton responded, “I agree. But this is what

happens when we have people going downtown complaining, it’s all BS.” (ECF No. 67-6 at

PageID 947.) Plaintiff alleges that he then asked Deaton “what he meant by ‘BS,’” and Deaton

5 In its Statement of Undisputed Material Facts, Defendant dates this conversation to July

10, 2023. (ECF No. 63-2 at PageID 244.) In his response, Plaintiff alleges that the meeting instead

occurred on May 1, 2023, and that the July 10 date appears to reflect when Plaintiff filed his

grievance related to Deaton’s conduct at that meeting. (ECF No. 67-1 at PageID 480–81.)

denied that he said “BS.” (Id.) Plaintiff says that Deaton then repeated his previous instructions,

prompting Plaintiff to tell Deaton that was the point at which Plaintiff believed Deaton had said,

“it’s all BS.” (Id.) According to Plaintiff, Deaton responded by shouting, “shut your mouth,” in

front of approximately 25 coworkers. (ECF No. 71-6 at PageID 1079–80; ECF No. 67-6 at PageID

947.)

A little over two months later, on July 10, 2023, Plaintiff filed a complaint against Deaton

for what Plaintiff alleged was “verbal abuse” during that May meeting (“Grievance 23-11”). (ECF

No. 71-6 at PageID 1079; see ECF No. 63-12; see also ECF No. 67-6 at PageID 947.) Deaton

denies that the meeting occurred as Plaintiff described. (ECF No. 71-6 at PageID 1080; see ECF

No. 67-1 at 13 (“Mr. Deaton, confused, denied saying anything different, and asked the individuals

present if he made the statement Plaintiff claimed.”).) Defendant’s human resources department

later concluded that there was no Title VII violation; it found that the substance of the allegation

was a policy violation and issued correspondence indicating the matter was being transferred to

Employee Services “for further investigation.” (ECF No. 67-1 at PageID 482–83; ECF No. 63-

13; ECF No. 63-12.)

Finally, on June 29, 2023, there was an altercation between Plaintiff and Matthews. (See

ECF No. 67-1 at PageID 483–87; ECF No. 71-6 at PageID 1082–88.) Plaintiff received his annual

performance evaluation on June 28. (ECF No. 67-1 at PageID 483.) The next day, Plaintiff

approached Matthews in his office to ask about certain records related to his annual evaluation.

(ECF No. 67-1 at PageID 484; ECF No. 71-6 at PageID 1082.) According to Plaintiff, Matthews

was initially responsive, but he eventually refused to continue the conversation unless a witness

was present. (ECF No. 67-1 at PageID 484.) Matthews asked Plaintiff to leave his office, and

according to Plaintiff, as he was leaving, Matthews “shoved [him], grabbed his arm, and jabbed a

finger in his face.” (ECF No. 71-6 at PageID 1082; ECF No. 67-1 at PageID 484.) Plaintiff says

he “objected to the physical contact and raised his voice,” but he denies that he threatened violence

or touched Matthews. (ECF No. 67-1 at PageID 484.) Other employees intervened, ultimately

separating Plaintiff and Matthews. (Id. at PageID 486–87; ECF No. 71-6 at PageID 1083.)

Plaintiff also claims that, either during or immediately after the confrontation, Blakney exited his

office and stated, “You’re done,” while pointing at Plaintiff. (ECF No. 67-1 at PageID 484.) After,

Plaintiff made a report to Corporate Security Officer R. Cunnigham, alleging that Matthews had

assaulted him. (ECF No. 67-1 at PageID 487.)

For its part, Defendant disputes much of Plaintiff’s account of the June 29 incident. For

example, Defendant contends that Matthews declined to speak with Plaintiff only after Plaintiff

“became angry” when asked if he was keeping his own employment-related records. (ECF No.

63-2 at PageID 245.) According to Defendant, Matthews then “touched Plaintiff on his right elbow

to encourage him to leave,” to which Plaintiff responded by “stripp[ing] off his hat, glasses, [and]

backpack” and then loudly telling Matthews, “If you want to hit me, hit me, go ahead.” (Id. at

PageID 245–46.) Defendant also says that, in response to Blakney’s comment that Plaintiff “was

done,” Plaintiff replied, “I’m done? You’re done! I’ll hit you too!” (Id. at PageID 247.) Plaintiff

denies stating that he would hit any of his supervisors; he says that, in response to Blakney, he

merely said, “No, you’re done.” (ECF No. 63-4 at PageID 299.)

On the evening of June 29, 2023, Defendant indefinitely suspended Plaintiff while it

investigated the incident. (ECF No. 67-1 at PageID 487; ECF No. 71-6 at PageID 1084.) The

notice of Plaintiff’s reprimand states that, “[a]ccording to preliminary findings, [Plaintiff] may

have made a statement or gesture after [Plaintiff’s] Performance Appraisal (PA) that could be

interpreted as threatening . . . Stacey Blakney.” (ECF No. 63-15.) Defendant’s Corporate Security

Office investigated the incident, collecting written statements from several witnesses, including

Matthews, Blakney, Ocampo, and eight other Locators who were present for the confrontation.

(See ECF No. 63-18.) Four of these witnesses—Blakney, Matthews, Ocampo, and Union

Representative Devin Thompson—stated that they heard Plaintiff reply to Blakney, “I’ll hit you

too.” (Id. at PageID 425–26.) Plaintiff’s interview with Officer Cunningham was also considered

during the investigation. (Id. at PageID 423–24; ECF No. 67-1 at PageID 489.) Corporate

Security’s Investigative Summary ultimately concluded that both Plaintiff and Matthews had

violated Defendant’s policies regarding workplace violence and civility in the workplace. (ECF

No. 63-18 at PageID 427.) The Investigative Summary further noted that Plaintiff “[had] a history

of violence with MLGW, . . . [was] presently on COCEA for a [workplace violence] incident in

2019[,]” and that “[o]ther databases reflect[ed] [he] ha[d] a history of aggression with other people

outside of MLGW.” (Id. at PageID 428.)

Defendant terminated Plaintiff’s employment on August 1, 2023, citing the results of the

Corporate Security investigation. (See ECF No. 63-19; ECF No. 67-1 at PageID 489–90.)

Plaintiff’s termination letter also notes that his conduct during the June 29 incident violated

Plaintiff’s 2019 COCEA, which stated that “[a]ctions that led to [the COCEA] will be considered

for determining discipline for any future incidents [of] threatening, intimidating, aggressive,

violent, or disrespectful behaviors.” (ECF No. 63-19.) Plaintiff filed a Union grievance

challenging his termination that same day, followed by a charge of race discrimination and

retaliation with the Tennessee Human Rights Commission and the Equal Employment Opportunity

Commission (“EEOC”) on August 9, 2023. (ECF No. 67-1 at PageID 490; ECF No. 63-20; ECF

No. 63-21; ECF No. 63-22.) The EEOC issued Plaintiff a “Right to Sue” Letter on August 24,

2023, and Defendant denied the internal grievance on September 19, 2023. (ECF No. 67-1 at

PageID 490; ECF No. 63-23.)

Plaintiff filed his Complaint in this matter on November 21, 2023, alleging claims for race

discrimination, harassment creating a hostile work environment, and retaliation and retaliatory

harassment in violation of Title VII of the Civil Rights Acts of 1964 (“Title VII”), the Tennessee

Human Rights Act (“THRA”), and 42 U.S.C. § 1981; violations of his Fourteenth Amendment due

process and equal protection rights pursuant to 42 U.S.C. § 1983; and negligent infliction of

emotional distress in violation of the Tennessee Healthy Workplace Act (“THWA”). (ECF No. 1

at PageID 14–24.)

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 permits a party to move for summary judgment—and

the Court to 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 moving party bears the initial burden of demonstrating that no genuine issue of material

fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may discharge

this burden either by producing evidence that demonstrates the absence of a genuine issue of

material fact or simply “by showing—that is, pointing out to the district court—that there is an

absence of evidence to support the nonmoving party’s case.” Id. at 325 (internal quotation marks

omitted). The moving party can meet this burden by pointing out to the court that the respondent,

having had sufficient opportunity for discovery, has no evidence to support an essential element of

the case. See Fed. R. Civ. P. 56(c)(1). A party asserting the presence or absence of genuine issues

of material facts must support its position either by “citing to particular parts of materials in the

record,” including depositions, documents, affidavits, declarations, stipulations, or other materials,

or by “showing that the materials cited do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id.

When confronted with a properly supported motion for summary judgment, the nonmoving

party must set forth specific facts showing that there is a genuine dispute for trial. The nonmovant

must “do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citing DeLuca v. Atl.

Refining Co., 176 F.2d 421, 423 (2d Cir. 1949)); see also Fed R. Civ. P. 56(c)(1); Street v. J.C.

Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (citations omitted) (“The respondent cannot

rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but

must ‘present affirmative evidence in order to defeat a properly supported motion for summary

judgment.’”).

In ruling on a motion for summary judgment, the Court must view the facts contained in

the record and all inferences that can be drawn from those facts in the light most favorable to the

nonmoving party. Matsushita, 475 U.S. at 587 (citation omitted); Nat’l Satellite Sports, Inc. v.

Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the

credibility of witnesses, or determine the truth of any matter in dispute. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). The Court’s role is limited to determining whether there is

a genuine dispute about a material fact, that is, if the evidence in the case “is such that a reasonable

jury could return a verdict for the nonmoving party.” Id. at 248. Such a determination requires

that the Court “view the evidence presented through the prism of the substantive evidentiary

burden” applicable to the case. Id. at 254. Thus, if the plaintiff must ultimately prove its case at

trial by a preponderance of the evidence, on a motion for summary judgment, the Court must

determine whether a jury could reasonably find that the plaintiff’s factual contentions are true by

a preponderance of the evidence. See id. at 252–53.

ANALYSIS

A. Timeliness of Plaintiff’s Claims

Before addressing the merits of Plaintiff’s claims, Defendant’s Motion first argues that

Plaintiff’s claims under § 1983 and the THRA are time-barred for acts that occurred prior to

November 21, 2022—one year before he filed his Complaint in this matter.6 (ECF No. 63-1 at

PageID 214–15.)

Under Tennessee law, THRA claims must be filed within one year after the alleged

discriminatory practice ceases. Tenn. Code Ann. § 4-21-311(d). So Plaintiff’s THRA claims for

discrete events that happened before November 21, 2022, one year before he initiated this action,

are time-barred. See id. So, too, with Plaintiff’s 1983 claims, which are also subject to a one-year

statute of limitations. Tenn. Code Ann. § 28-3-104(a)(1); see Wershe v. City of Detroit , 112 F.4th

357, 365 (6th Cir. 2024) (explaining that § 1983 claims “borrow the personal-injury statute of

limitations from the state in which the claim arose”); Dibrell v. City of Knoxville, 984 F.3d 1156,

1161 (6th Cir. 2021) (Tennessee’s one-year statute of limitations for personal-injury torts applies

to §1983 claims).

To start, at least one of Plaintiff’s disparate treatment claims under the THRA and § 1983

is time-barred. Although his Complaint does not specify the events on which these claims are

6 Defendant also asserts that Plaintiff’s NIED claim is time-barred by applicable Tennessee

law to the extent it is based on events that occurred before November 21, 2022. (ECF No. 63-1 at

PageID 214–15.) But as explained later, Plaintiff has not offered sufficient facts to satisfy his

evidentiary burden for his NIED claim. See infra, pp. 34–35. For that reason, Defendant is entitled

to summary judgment on the merits of that claim, and the Court need not address whether it also

falls outside the relevant statutes of limitations.

based, (see ECF No. 1 at PageID 14–19 (grouping all all THRA claims as “Count II,” all § 19817

claims as “Count III,” and Fourteenth Amendment claims as “Count V”)), Plaintiff appears to

identify three “adverse actions” as the basis of his disparate treatment claims: (1) exclusion from

the Foreman Development Program, which occurred sometime in late September or early October

2022; (2) his suspension on June 29, 2023; and (3) his termination on August 1, 2023. (See ECF

No. 67 at PageID 458; see also ECF No. 67-1 at PageID 474 (dating Plaintiff’s conversation with

supervisors about participation in the Foreman Development Program).) Of these, Defendant’s

timeliness argument is relevant only to Plaintiff’s exclusion from the Foreman Development

Program.

The parties do not identify a precise date on which Plaintiff was denied entry to the

Foreman Development Program, but Plaintiff does not dispute that this event took place “in or

about late September/early October 2022.” (See ECF No. 67-1 at PageID 474.) This date plainly

falls outside the one-year limitation period for THRA and § 1983 claims. To the extent Plaintiff

seeks to rely on his exclusion from the Foreman Development Program as an adverse action for

his disparate treatment claims under the THRA or claims under § 1983, he is time-barred from

doing so. Plaintiff also does not address Defendant’s timeliness argument with respect to his

THRA disparate treatment claim. (See generally ECF No. 67 at 457–-65 (addressing the

limitations period only as to Plaintiff’s hostile work environment claim).) For this reason, and

because the undisputed date of Plaintiff’s exclusion from the Foreman Development Program was

at least more than one year before Plaintiff filed his Complaint in this matter, Defendant is entitled

to summary judgment as a matter of law on Plaintiff’s THRA and § 1983 disparate treatment claim

7 Reference to Plaintiff’s § 1981 claims is made because those claims are properly brought

pursuant to § 1983. See infra p. 30 & n. 12.

for exclusion from the Foreman Development Program, and its motion is GRANTED for this

claim. See Haddad v. Sec’y, U.S. Dep’t of Homeland Sec., 610 F. App’x 567, 568–69 (6th Cir.

2015) (citation omitted) (“A plaintiff is deemed to have abandoned a claim when [he] fails to

address it in response to a motion for summary judgment.”).8

However, the same reasoning does not apply to Plaintiff’s hostile work environment and

retaliation claims. That’s because a plaintiff may rely on otherwise time-barred acts of

discrimination to establish a hostile work environment claim. See Austion, 244 F. App’x at 649–

50 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 117 (2002)) (“Provided that

an act contributing to the chain occurs within the filing period, the entire period of the hostile

environment may be considered by a court for the purposes of determining liability.”); Ruiz v. Butts

Foods, L.P., No. W2023-01053-COA-R3-CV, 2025 WL 1099966, at *8 (Tenn. Ct. App. Apr. 14,

2025) (applying same principle to hostile work environment claims under the THRA). And

Plaintiff’s retaliation claims are also timely because Plaintiff’s first instance of protected activity

alleged in the Complaint was his grievance filed on December 8, 2022, (see ECF No. 1 at PageID

5–6), which is after the November 21, 2022, cutoff for his THRA and § 1983 claims to be timely.

8 Defendant does not argue that Plaintiff’s parallel Title VII claims are time-barred. (See

ECF No. 63-1 at PageID 215 n.1.) Title 42 U.S.C. § 2000e-5 requires that, before asserting a Title

VII claim, plaintiffs must file a charge of discrimination with a state or local agency within 300

days of the alleged unlawful employment action. Austion v. City of Clarksville, 244 F. App’x 639,

647 (6th Cir. 2007) (citing 42 U.S.C. § 2000e-5). Plaintiff filed his EEOC charge alleging

discrimination and retaliation on August 9, 2023, so discrete events before October 13, 2022,

would have been untimely. Davis v. Metro Parks & Recreation Dep’t, 854 F. App’x 707, 712 (6th

Cir. 2021). But recall that the parties did not provide a specific date for Plaintiff’s exclusion from

the Foreman Development Program—only agreeing that it happened in “late September/early

October 2022.” (ECF No. 67-1 at PageID 477.) Because discrete events that happened before

October 13, 2022, are time barred, the lack of a specific date for this event looms large. But

because Defendant did not argue that any of Plaintiff’s Title VII claims are time barred, it is not

addressed herein.

B. Title VII and Tennessee Human Rights Act Claims

Plaintiff asserts claims of race-based discrimination (disparate treatment), harassment

creating a hostile work environment, retaliation, and retaliatory harassment under Title VII and

parallel provisions of the THRA.

1. Race Discrimination (Disparate Treatment) Claims

Title VII and the THRA prohibit employers from failing or refusing to hire, discharging, or

otherwise discriminating against any person with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual’s race. 42 U.S.C. § 2000e-2(a)(1); Tenn.

Code Ann. § 4-21-401(a). “Plaintiffs can prove discrimination with either direct or circumstantial

evidence. Direct evidence ‘consists of facts that, if believed, require the conclusion that unlawful

discrimination was at least a motivating factor in the employer’s actions.’” Patterson v. Kent State

Univ., 155 F.4th 635, 644–45 (6th Cir. 2025) (quoting Tennial v. United Parcel Serv., Inc., 840 F.3d

292, 302 (6th Cir. 2016)). “Circumstantial evidence, by contrast, is indirect evidence that gives

rise to an inference of discrimination; it suggests, but does not require, the conclusion that

discrimination occurred.” Id.

When a plaintiff relies on circumstantial evidence to prove his claim, courts apply the

burden-shifting framework from McDonnell Douglas Corp. v. Green. Stewart v. Esper, 815 F.

App’x 8, 16 (6th Cir. 2020) (citing McDonnell Douglas, 411 U.S. 792 (1973)); see Sybrandt v.

Home Depot, U.S.A., Inc., 560 F.3d 553, 557 (6th Cir. 2009) (“Both this court and the state courts

in Tennessee have evaluated claims brought under the THRA in the same manner as Title VII

claims.”). Under that framework, the plaintiff has the initial burden of establishing a prima face

case of discrimination. Stewart, 816 F. App’x at 17 (citing Upshaw v. Ford Motor Co., 610 F.3d

359, 364 (6th Cir. 2010)). To do so, the plaintiff must show that (1) he is a member of a protected

class; (2) he was subject to an adverse employment action; (3) he was qualified for his position;

and (4) similarly situated employees outside his protected class were treated more favorably. Id.

at 16 (citation omitted); see Sybrandt, 560 F.3d at 557.

If the plaintiff establishes a prima facie case, then the burden of production shifts to the

defendant to articulate a legitimate, nondiscriminatory reason for its actions. Stewart, 815 F. App’x

at 17 (citing Upshaw, 610 F.3d at 364). And if the defendant does so, the burden shifts back to the

plaintiff to prove by a preponderance of the evidence that the defendant’s offered reasons were

pretextual. Id. “A 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.” Redlin v. Grosse

Pointe Pub. Sch. Sys., 921 F.3d 599, 612 (6th Cir. 2019) (quoting Chen v. Dow Chem. Co., 580

F.3d 394, 400 (6th Cir. 2009)) (citation modified). Specifically, the plaintiff must “identify

evidence from which a reasonable jury could conclude that the proffered reason is actually a pretext

for unlawful discrimination.” Jones v. Memphis Light, Gas & Water Div., 346 F. App’x 38, 43 (6th

Cir. 2009) (citation omitted).

Plaintiff here relies on circumstantial evidence to support his claims, so the McDonnell

Douglas burden shifting framework applies. To start, the parties do not dispute that Plaintiff has

satisfied the first element of his prima facie case: that Plaintiff is a member of a protected class

because of his race. But the parties disagree about almost everything else.

For the second element, the parties agree that Plaintiff’s suspension and termination were

adverse actions. But Defendant asserts that other events in the Complaint—that is, Plaintiff

allegedly being compelled to sign the 2019 COCEA, being denied a new work vehicle, having his

work vehicle searched, Matthews’ and Deaton’s purportedly inappropriate language towards him,

and being denied entry into the Foreman Development Program—do not rise to the level of adverse

actions within the meaning of Title VII. (ECF No. 63-1 at PageID 217.) Of these, Plaintiff’s

response addresses only his exclusion from the Foreman Development Program as an adverse

action. (See ECF No. 67 at PageID 457–60.) For that reason, the Court narrows its analysis for

Plaintiff’s disparate treatment claims to Plaintiff’s exclusion from the Foreman Development

program, his suspension, and his termination.9

So, was Plaintiff’s exclusion from the Foreman Development Program an adverse

employment action? An adverse employment action is “a change in an ‘identifiable term or

condition of employment’” that makes the employee “worse off.” Williams v. Memphis Light, Gas

& Water, No. 23-5616, 2024 WL 3427171, at *5 (6th Cir. July 16, 2024) (citing Muldrow v. City

of St. Louis, 601 U.S. 346, 355, 359 (2024)). Although exclusion from an optional training

program is generally not an adverse employment action, it may be if it results in the plaintiff being

“worse off” because, for example, he missed out on increased or additional compensation. See

Logan v. MGM Grand Detroit Casino, No. 21-1149, 2021 WL 6932348, at *4 (6th Cir. Dec. 22,

2021) (citing Clay v. United Parcel Serv., Inc., 501 F.3d 695, 710 (6th Cir. 2007)). But the

possibility that training could result in a future promotion is generally too speculative to be an

adverse employment action. See id. (citations omitted). That is the case here. The Foreman

Development Program allowed Locators to be trained and accrue skills that could make them

9 In addition, Plaintiff signing the 2019 COCEA and being denied a new work vehicle were

discrete events that occurred before November 21, 2022, so THRA claims based on those events

are time barred. See supra, pp. 13–15. It is questionable whether Plaintiff exhausted his

administrative remedies with respect to any claim for the Foreman Development Program, but

Defendant did not raise this argument, so the Court will not address it. Moore v. Coca-Cola

Bottling Co. Consol., 113 F.4th 608, 621–22 (6th Cir. 2024).

eligible for promotion. Without more, this possibility of future promotion is too speculative to

make exclusion from the program an adverse employment action. That dooms Plaintiff’s claim.

That leaves only Plaintiff’s claims based on his suspension and termination. But Plaintiff

has not made a prima facie case for these actions because he has not satisfied the fourth element—

that a similarly situated employee outside his protected class was treated more favorably. The only

comparator Plaintiff identifies in his response is Ocampo. Although Ocampo may have been

similarly situated for a prima facie case for Plaintiff’s exclusion from the Foreman Development

Program, Plaintiff has not shown that Ocampo was similarly situated for his claims based on his

suspension and termination. Plaintiff has not alleged or come forward with evidence showing that

Ocampo was not suspended or terminated despite violating similar workplace policies or engaging

in conduct of comparable seriousness. See Hieber v. Oakland Cnty, 136 F.4th 308, 329 (6th Cir.

2025) (“When determining whether employees engaged in similar misconduct, we look to ‘the

type, circumstances, and respective severity of the misconduct alleged.’” (citation omitted));

Moore, 113 F.4th at 625 (“At this stage, all that we look for is similarly situated comparators who

‘were not fired’ despite engaging in ‘substantially identical conduct to that which the employer

contends motivated its discharge of the plaintiff.’” (citation omitted)); Jackson v. VHS Detroit

Receiving Hosp., Inc., 814 F.3d 769, 777 (6th Cir. 2016) (explaining that, to be similarly situated,

alleged comparators 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”).

But even assuming Plaintiff had established a prima facie case for his disparate treatment

claims based on his suspension and termination, he has not shown that Defendant’s reasons for its

actions were pretextual. Plaintiff’s firing, according to Defendant, was the result of Plaintiff’s

threat to physically strike his former second-line supervisor. (See ECF No. 63-2 at PageID 249;

ECF No. 63-1 at PageID 227–30.) Defendant contends that this conduct violated its Workplace

Violence Policy and Plaintiff’s still-active 2019 COCEA. (ECF No. 63-1 at PageID 227; ECF No.

63-19.) In support of its reasoning, Defendant points to the following evidence: its Corporate

Security Office’s Investigation Summary into the June 29 incident; its Workplace Violence Policy

(ECF No. 63-24); the deposition testimony of several employees (including Plaintiff) who

corroborated the verbal altercation between Plaintiff and Matthews; and Plaintiff’s March 2019

COCEA. (See ECF Nos. 63-4, 63-5, 63-6, 63-7, 63-8, 63-14, 63-18, 63-24.) Plaintiff’s suspension

and termination notices also explicitly state that these decisions were based on allegations that

Plaintiff violated Defendant’s Workplace Violence policy. (See ECF Nos. 63-15, 63-19; see also

ECF No. 63-6 at PageID 337 (stating, as part of Plaintiff’s COCEA, that any behavior believed to

be in violation of that agreement would be “thoroughly investigated” and result in immediate

termination “[i]f it is determined that sufficient evidence exists to support the allegations”).) This

evidence satisfies Defendant’s burden under McDonell Douglas to articulate a legitimate, non-

discriminatory reason for its decisions to suspend and terminate Plaintiff.

The burden thus shifts back to Plaintiff to demonstrate, by a preponderance of the evidence,

that Defendant’s stated reasoning was pretext for unlawful discrimination. Plaintiff points the

following four things, which he says undermines Defendant’s stated rationale for his termination:

First, he alleges that “[t]here is no evidence that [he] ever touched Matthews,” and in fact, Plaintiff

has consistently testified that Matthews initiated physical contact. (ECF No. 67 at PageID 464.)

Second, Plaintiff contends that “there is conflicting testimony regarding whether [Plaintiff]

threatened Blakney,” as only four of the twelve witnesses interviewed by Corporate Security

reported hearing Plaintiff tell Blakney, “I’ll hit you too.” (Id. at PageID 465.) Third, Plaintiff

argues that certain “investigative failures” support a finding of pretext, namely that Deaton testified

he did not “independently verify” certain facts before affirming the decision to terminate Plaintiff.

(Id.) Finally, Plaintiff asserts that Defendant’s “shifting justification for other adverse actions,”

including exclusion of Plaintiff from the Foreman Development Program, support a finding of

pretext. (Id.) Ultimately, none of these things create a genuine issue of material fact about pretext.

“[A]s long as an employer has an honest belief in its proffered nondiscriminatory reason

for discharging an employee, the employee cannot establish that the reason was pretextual,” even

if the employer’s reasoning is “ultimately shown to be incorrect.” Sybrandt, 560 F.3d at 559

(quoting Majewski v. Auto. Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001)). The key

inquiry in assessing if an employer holds such an honest belief is “whether the employer made a

reasonably informed and considered decision before taking the complained-of action.” Id. (citing

Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598–99 (6th Cir. 2007)); see also Michael,

496 F.3d at 599 (“[W]e do not require that the decisional process used by the employer be optimal

or that it left no stone unturned.”); Hardesty v. Kroger Co., 758 F. App’x 490, 495 (6th Cir. 2019).

(“[W]hen we evaluate the honesty of an employer’s belief, we do not require evidence of an

optimal decisional process or a scorched-earth investigation.” (citation omitted).).

Defendant has offered evidence that its decision to suspend Plaintiff was made after

Plaintiff—by his own admission—was involved in a verbal altercation with one of his supervisors,

Matthews, in which he “threw [his] stuff down,” said to Matthews, “If you want to hit me, hit me,

go ahead,” and then had to be physically removed by a coworker. (ECF No. 67-5 at PageID 757.)

Plaintiff’s first argument that he never touched Matthews is not relevant and does not support

pretext: Corporate Security’s investigation did not find that Plaintiff had hit or touched Matthews,

so its conclusion could not have been based on that. (See ECF No. 63-18.) Second, conflicting

testimony about whether Plaintiff threatened Blakeny also falls short. “[I]nvestigations often

produce conflicting evidence, requiring an employer to evaluate credibility and weigh various

pieces of information. Just because an employer must choose between inconsistent accounts ‘does

not mean that there inevitably is a genuine issue of fact concerning the employer’s good faith.’”

Hardesty, 758 F. App’x at 494. Third, Defendant’s Corporate Security Office conducted a

thorough investigation of the incident, interviewing several witnesses in addition to Matthews and

Plaintiff. (See ECF No. 63-18.) Finally, Plaintiff does not explain why Deaton should have

“independently verified” that investigation or what facts in the investigation he disputes.

Defendant’s Corporate Security conducted a sufficiently diligent investigation, which

concluded that Plaintiff had violated several of Defendant’s workplace policies. (See id. at PageID

427.) And relying on that conclusion, Defendant’s human resources department recommended

that Plaintiff be terminated for violating Defendant’s policies and the terms of his COCEA. (ECF

No. 63-5 at PageID 331; ECF No. 71-6 at PageID 1085; ECF No. 63-18 at PageID 427; see also

ECF No. 63-1 at PageID 228.) Defendant’s decisions to suspend and terminate Plaintiff were

“reasonably informed and considered.” Sybrandt, 560 F.3d at 560 (citation omitted). Plaintiff

therefore has not shown that Defendant’s reasons were pretextual.

In sum, Plaintiff’s discrimination claims fail because he has not met his burden to show

that he was subject to an adverse employment action (for exclusion from the Foreman

Development Program), or that similarly situated employees outside his protected class were

treated more favorably or Defendant’s reasons were pretextual (for suspension and termination).

Defendant’s motion is GRANTED with respect to Plaintiff’s race discrimination claims under

Title VII and the THRA.

2. Hostile Work Environment Claim10

For a Title VII claim of harassment creating a hostile work environment, a plaintiff must

make direct or inferential allegations that: (1) he belonged to a protected group, (2) he was subject

to unwelcome harassment, (3) the harassment was based on his protected status, (4) the harassment

was sufficiently severe or pervasive to alter the conditions of employment and create an abusive

working environment, and (5) the defendant knew or should have known about the harassment and

failed to act. Middleton v. United Church of Christ Bd., No. 20-4141, 2021 WL 5447040, at *3

(6th Cir. Nov. 22, 2021) (citation omitted); Stewart, 815 F. App’x at 20 (citation omitted); Wyatt v.

Nissan N. Am., Inc., 999 F.3d 400, 411 (6th Cir. 2021) (“Harassment creates a hostile work

environment when the workplace is permeated with discriminatory intimidation, ridicule, and

insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.” (citation modified)); see Smith v. P.A.M. Transp.,

Inc., 154 F.4th 375, 382–83 (6th Cir. 2025) (applying same framework to hostile work environment

claims under the THRA and § 1981).

Existence of the fourth element—harassment sufficiently severe or pervasive to create an

abusive work environment—“is quintessentially a question of fact.” Kellar v. Yunion, Inc., 157

F.4th 855, 874 (6th Cir. 2025) (citation modified). To answer that question, courts “consider the

10 It is again questionable whether Plaintiff properly exhausted these claims. See supra, p.

18 n. 9; Golden v. Mirabile Inv. Corp., 724 F. App’x 441, 445–46 (6th Cir. 2018). His EEOC

charge recounts that Defendant hired him in or about May 2008; that he filed an internal grievance

against Blakney and Matthews on December 28, 2022; and that he was terminated on August 1,

2023. (ECF No. 63-22 at PageID 438.) On those facts, Plaintiff alleged that he had been

discriminated against based on his race and retaliated against in violation of Title VII. (Id.)

Defendant, however, has not asserted that Plaintiff failed to exhaust his administrative remedies

for these claims, so the Court need not address it. See Moore, 113 F.4th at 622 (“Failure to exhaust

in the context of Title VII claims is an affirmative defense that defendants ‘bear[ ] the burden of

pleading and proving.’” (citation omitted)).

totality of the circumstances, including the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” McNeal v. City of Blue Ash, 117

F.4th 887, 904 (6th Cir. 2024); Kellar, 157 F.4th at 874; Stewart, 815 F. App’x at 20. “In

determining whether the harassment is sufficiently severe or pervasive to create a hostile work

environment, ‘the conduct in question must be judged by both an objective and a subjective

standard.’” Johnson v. Ford Motor Co., 13 F.4th 493, 505 (6th Cir. 2021) (citation omitted);

Stewart, 815 F. App’x at 20.

“However, the third element limits the scope of this analysis: only harassment based on the

plaintiff’s race may be considered.” Williams v. CSX Transp. Co., 643 F.3d 502, 511 (6th Cir.

2011). That is because “Title VII does not prohibit all verbal or physical harassment in the work

place; it is directed only at discriminat[ion] because of protected characteristics under the

statutes.” Khalaf v. Ford Motor Co., 973 F.3d 469, 484 (6th Cir. 2020) (quoting Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)) (citation modified). In other words, “the

conduct of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are

acting because of the victim’s [protected status].” Id. (quoting Wasek v. Arrow Energy Servs., Inc.,

682 F.3d 463, 467 (6th Cir. 2012)). A plaintiff may satisfy this element “by adducing evidence of

the use of race-specific and derogatory terms, or comparative evidence of how the alleged

harassers treated members of both races in a mixed-race workplace.” Smith, 154 F.4th at 383

(citing Strickland v. City of Detroit, 995 F.3d 495, 503 (6th Cir. 2021)). But “the harassing conduct

need not be overtly racist to qualify,” the plaintiff must simply show that “it would not have

occurred but for the plaintiff’s race.” Williams, 643 F.3d at 511 (emphasis added).

Defendant does not dispute the first element—that Plaintiff belongs to a protected group.

But it asserts that Plaintiff cannot satisfy the remaining elements of his hostile environment claim.

Plaintiff alleges that there is a genuine dispute for trial on his claim and points to the

following in support:

• Matthews referring to Plaintiff using obscene language during a phone call with

Jarrett in October 2022 (ECF No. 67 at PageID 460);

• Matthews physically confronting Plaintiff on June 29, 2023, “including shoving

him, grabbing his elbow, and jabbing a finger into his face” (id. at PageID 461);

• Plaintiff and other black locators “were routinely excluded from post-shift social

gatherings while white employees received more favorable assignments and were

not disciplined for attendance issues” (id.).

Plaintiff, however, has not come forward with evidence that the above incidents of alleged

harassment were based on race. None of the alleged harassment involves race-specific or

derogatory terms. Nor does Plaintiff point to evidence that Matthews, or any other supervisors or

coworkers, ever used racist language—not only in the above incidents but at any other time during

Plaintiff’s employment at MLGW.

Plaintiff’s comparative evidence is also not persuasive. Although his response alleges that

black Locators “were routinely excluded from post-shift social gatherings,” and that white

employees “received more favorable assignments and were not disciplined for attendance issues,”

his testimony cited in support of these assertions gives scant details. Plaintiff testified that

Matthews, along with two or three white coworkers, would go to bars and drink together, and at

work the next day, the coworkers would be “laughing and joking,” and “talk[ing] about how much

fun they had” and “how some of them couldn’t get up to come to work that day.” (ECF No. 67-5

at PageID 789.) Plaintiff testified that these white coworkers would sometimes call in sick after

their nights out drinking together and to Plaintiff’s knowledge, they did not have to provide

doctor’s notes. (Id.) Plaintiff acknowledged that Matthews and the coworkers appeared to have a

friendship outside of work but maintained that the alleged preferential treatment was due to race,

not friendship. (Id. at PageID 755, 790.) But Plaintiff’s testimony lacks details about how

Matthews (or anyone else) treated black employees. Plaintiff’s testimony about alleged

preferential treatment for two to three people outside of Plaintiff’s protected class is not sufficient

probative evidence for a jury to conclude that the alleged harassment would not have occurred but

for Plaintiff’s race. See Khalaf, 973 F.3d at 485 (“This court has held that a comparison between

one member of a protected class and one employee outside of that protected class is not

‘comparative evidence about how the alleged harasser[s] treated members of both races in a mixed-

race workplace.’” (citing Williams, 643 F.3d at 511)); cf. Rembert v. Swagelok Co., No. 22-3554,

2023 WL 3094546, at *1 (6th Cir. Apr. 26, 2023) (noting that, in addition to plaintiff’s evidence of

threats and harassment, he had presented evidence of differential treatment, including that his boss

excluded him from “shop talks” on the basis that he was a temporary employee, yet “several white

temporary employees were included”); see also Kellar, 157 F.4th at 875 (concluding that the

plaintiff “need[ed] more than broad, conclusory statements alleging harassment”).

The alleged harassment was also not severe or pervasive. Plaintiff has not asserted that the

harassing behavior was “commonplace, ongoing, and continual.” Abeita v. TransAmerica

Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998); cf. Johnson, 13 F.4th at 506 (employee alleged

that co-worker was “constantly harassing her”). Nor can that inference be drawn based on the

facts identified by Plaintiff. Matthews’ use of obscenity in reference to Plaintiff was an isolated

incident. And Matthews was not speaking to Plaintiff when he said it; rather, he was speaking to

Jarrett during a phone call, which Plaintiff overheard, making the comment overall less severe.

See Pantoja v. Michigan Dep’t of Corr., No. 1:23-CV-563, 2025 WL 3299734, at *3 (W.D. Mich.

Apr. 17, 2025) (noting that indirect or “second-hand” harassing comments are less severe and

collecting cases). Of course, this event is not considered in isolation. But considering it along

with the altercation between Matthews and Plaintiff and Matthews’ alleged socialization with two

to three white coworkers, Plaintiff still has not shown “a workplace culture of harassment

permeated with hostility towards the protected class.”11 Kellar, 157 F.4th at 873.

Because Plaintiff has not come forward with sufficient probative evidence to support his

hostile work environment claim, Defendant is entitled to summary judgment on this claim.

3. Retaliation and Retaliatory Harassment Claims

Retaliation claims under Title VII are brought pursuant to the “opposition clause” of Title

VII, which makes it unlawful for any employer to discriminate against any employee “because he

has opposed any practice made . . . unlawful . . . by this subchapter.” 42 U.S.C. § 2000e-3(a); see

Kirkland v. City of Maryville, 54 F.4th 901, 910 (6th Cir. 2022) (citations omitted) (writing that

retaliation is an actionable claim under both Title VII and the THRA and that “claims under these

respective laws are evaluated identically”). The clause “protects not only the filing of formal

discrimination charges with the EEOC, but also complaints to management and less formal protests

of discriminatory employment practices.” Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th

Cir. 2014) (citations omitted).

11 And this remains true even taking into account two additional events that Plaintiff did

not identify in his response as contributing to an alleged hostile work environment: (1) the “end of

2022” incident when Matthews “raised his voice,” to Plaintiff and three other black employees,

and (2) the May 2023 meeting when Deaton allegedly told Plaintiff to “shut his mouth” in front of

coworkers.

As with Title VII discrimination claims, where a plaintiff offers circumstantial evidence to

support his retaliation claim, the McDonell Douglas burden-shifting framework applies. Henry v.

S. Ohio Med. Ctr., 155 F.4th 620, 634 (6th Cir. 2025) (citing Taylor v. Geithner, 703 F.3d 328, 336

(6th Cir. 2013)). So, again, a plaintiff must first make a prima facie case, and then the burden

shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Id.

(citation omitted). If the defendant satisfies its burden, the plaintiff must then demonstrate pretext.

See id.

To establish a prima face case of retaliation or retaliatory harassment, a plaintiff must show

that (1) he engaged in activity protected by Title VII; (2) the defendant knew the plaintiff engaged

in protected activity; (3) the defendant took an adverse employment action against the plaintiff or

subjected him “to severe or pervasive retaliatory harassment by a supervisor”; and (4) a causal

connection existed between the protected activity and the adverse employment action or severe or

pervasive harassment. Williams, 2024 WL 3427171, at *8 (citation omitted); see Henry, 155 F.4th

at 634 (citing Taylor, 703 F.3d at 336). “Title VII retaliation claims ‘must be proved according to

traditional principles of but-for causation,’ which ‘requires proof that the unlawful retaliation

would not have occurred in the absence of the alleged wrongful action or actions of the employer.’”

Laster, 746 F.3d at 731 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)).

Suspension and Termination. Plaintiff contends that his suspension and termination were

retaliation for the internal grievances and complaints he made alleging harassment, bullying, and

discrimination. (ECF No. 67 at PageID 462.) But even assuming that Plaintiff can establish a

prima facie case of retaliation, his claim still fails because, as discussed above for his disparate

treatment claim, Defendant has offered a nondiscriminatory reason for suspending and terminating

him, and Plaintiff has not shown that Defendant’s reason was pretextual.

Retaliatory Harassment. For his retaliatory hostile work environment claim, Plaintiff must

show that he was subjected to “severe or pervasive” harassment by a supervisor after he engaged

in protected activity. Ogbonna-McGruder v. Austin Peay State Univ., 91 F.4th 833, 841–42 (6th

Cir. 2024); see Wyatt, 999 F.3d at 426 (noting that the standard for actionable harassment in the

retaliation context is the same standard applied in the discrimination context). In his response,

Plaintiff identifies only a single instance of harassment that he says was retaliatory—Deaton

allegedly yelling at him to “shut his mouth” at a meeting in front of 25 coworkers.12 (See ECF

No. 67 at PageID 462–63.) But this single incident is not sufficiently serious to constitute severe

or pervasive harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)

(explaining that “the ordinary tribulations of the workplace, such as the sporadic use of abusive

language, gender-related jokes, and occasional teasing” are insufficient to create a hostile

environment for purposes of Title VII); Stewart, 815 F. App’x at 20–21 (citing Faragher, 524 U.S.

at 788).

For the above reasons, Defendant is entitled to summary judgment on Plaintiff’s claims for

retaliation and retaliatory harassment.

C. Title 42 U.S.C. §§ 1981 and 1983 Claims

As an initial matter, Plaintiff’s Complaint contains separate counts for his claims under §

1981 and his Fourteenth Amendment claims pursuant to § 1983. However, “no independent cause

12 Plaintiff’s suspension and termination “cause[d] a change in the terms or conditions of

[his] employment,” so they are excluded from the analysis of his retaliatory hostile environment

claims. McNeal, 117 F.4th at 901.

In his response, Plaintiff does not argue that the search of his work truck in December 2022,

was retaliatory harassment. For that reason, and because Plaintiff has not come forward with

evidence showing that Blakney knew about Plaintiff’s protected activity when he instructed

Freddie Hawkins to search Plaintiff’s work truck, that incident is not included in the Court’s

analysis. But even if it was, it would still be insufficient, when considered along with all the

circumstances, to show that Plaintiff was subjected to an objectively hostile work environment.

of action against municipalities is created by § 1981(c),” and “the express cause of action for

damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights

guaranteed in § 1981 by state governmental units . . . .” Inner City Contracting, LLC v. Charter

Twp. of Northville, 87 F.4th 743, 754 (6th Cir. 2023) (citing Arendale v. City of Memphis, 519 F.3d

587, 599 (6th Cir. 2008) and Jett v. Dallas Indep. Sch. Dist, 491 U.S. 701, 733 (1989)). So

Plaintiff’s § 1981 claims are evaluated using the § 1983 framework.13 Id.

Title 42 U.S.C. § 1983 provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress . . . .

Section 1983 is not the source of any substantive right; it merely provides a method for

vindicating federal rights elsewhere conferred. Graham v. Connor, 490 U.S. 386, 393–94 (1989).

“To prevail on a cause of action under § 1983, a plaintiff must prove ‘(1) the deprivation of a right

secured by the Constitution or laws of the United States (2) caused by a person acting under the

color of state law.’” Shadrick v. Hopkins Cnty., 805 F.3d 724, 736 (6th Cir. 2015) (quoting Jones

v. Muskegon Cnty., 625 F.3d 935, 941 (6th Cir. 2010)); Adickes v. S.H. Kress & Co., 398 U.S. 144,

150 (1970).

“A body politic is a ‘person’ within the meaning of § 1983.” Franklin v. Franklin Cnty.,

115 F.4th 461, 470 (6th Cir. 2024) (quoting Ford v. Cnty. of Grand Traverse, 535 F.3d 483, 495

(6th Cir. 2008)). But a local government entity, like Defendant, is not liable under § 1983 solely

because an injury was inflicted by its employees; instead, a plaintiff must show that his injuries

13 And Plaintiff appears to have conceded this issue after it was raised in Defendant’s

Motion. (See ECF No. 63-1 at PageID 214; ECF NO. 67 at PageID 457.)

were sustained pursuant to an illegal custom or policy of the local government entity. Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978); Harness v. Anderson Cnty.,

No. 21-5710, 2023 WL 4482371, at *2 (6th Cir. July 12, 2023) (“A plaintiff suing a municipality

under § 1983 must show that she experienced a constitutional injury as the result of an official

municipal policy.”). Put differently, a municipality is not liable under § 1983 unless a plaintiff

shows that his rights were violated because of a municipal policy or custom. Franklin, 115 F.4th

at 470. The Sixth Circuit has identified “at least four avenues” through which a plaintiff may prove

the existence of an unlawful municipal policy or custom. Id. (quoting Thomas v. City of

Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)). These include “(1) the municipality’s legislative

enactments or official agency policies; (2) actions taken by officials with final decision-making

authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance or

acquiescence of federal rights violations.” Id.

Plaintiff relies on the second and fourth avenues to impose liability here.

Under the second, a municipality is liable for an official’s action “if the official is the one

who has the final authority to establish municipal policy with respect to the action ordered.”

Arnold v. City of Columbus, 515 F. App’x 524, 538 (6th Cir. 2013) (quoting Feliciano v. City of

Cleveland, 988 F.2d 649, 655 (6th Cir. 1993)) (internal quotation marks omitted); Harness v.

Anderson Cnty., No. 21-5710, 2023 WL 4482371, at *2 (6th Cir. July 12, 2023) (“To be a final

policymaker, the official must ‘possess[ ] final authority to establish municipal policy with respect

to the action ordered.’” (citation omitted)). “Whether an official has final policy making authority

is a question of state and local law.” Goza v. Memphis Light Gas & Water Div., No. 2:17-CV-

2873-JPM-DKV, 2019 WL 11706044, at *10 (W.D. Tenn. Jan. 9, 2019) (quoting O’Brien v. City

of Grand Rapids, 23 F.3d 990, 1001 (6th Cir. 1994)). A municipality can also be liable if a final

policymaker ratifies a subordinate employee’s decision. Arnold, 515 F. App’x at 538. “However,

‘mere acquiescence in a single discretionary decision by a subordinate is not sufficient to show

ratification.’” Id. (quoting Feliciano, 988 F.2d at 656).

Under the fourth avenue, even “[i]n the absence of a formally approved policy, a ‘custom’

can give rise to municipal liability when the ‘practice is so widespread as to have the force of

law.’” North v. Cuyahoga Cnty., 754 F. App’x 380, 386 (6th Cir. 2018) (quoting Bd. of Cnty.

Comm’rs of Bryan Cnty., v. Brown, 520 U.S. 397, 404–05 (1997)). To prove a policy or custom

of tolerance, a plaintiff must show:

(1) the existence of a clear and persistent pattern of [wrongdoing];

(2) notice or constructive notice on the part of the [municipal body];

(3) the [municipal body’s] tacit approval of the unconstitutional conduct,

such that their deliberate indifference in their failure to act can be said to

amount to an official policy of inaction; and

(4) that the [municipal body’s] custom was the “moving force” or direct

causal link in the constitutional deprivation.

Stucker v. Louisville Metro Gov’t, No. 23-5214, 2024 WL 2135407, at *9 (6th Cir. May 13, 2024)

(quoting Doe v. Claiborne Cnty. ex rel. Claiborne Cnty. Bd. of Educ., 103 F.3d 495, 508 (6th Cir.

1996)). This standard requires a showing of a municipal body’s “deliberate indifference,” meaning

that “the municipality has failed to act ‘in response to repeated complaints of constitutional

violations by its officers.’” Id. at *11 (quoting Ouza v. City of Dearborn Heights, 969 F.3d 265,

287 (6th Cir. 2020)). Deliberate indifference can be demonstrated through a “pattern of similar

constitutional violations showing [] [p]olicymakers’ continued adherence to an approach that they

know or should know has failed to prevent tortious conduct by employees.” Id. (quoting Connick

v. Thompson, 563 U.S. 51, 62 (2011)) (internal quotation marks omitted). Although the Sixth

Circuit has not identified a minimum threshold required to show a pattern of similar violations, it

has made clear that “a plaintiff cannot rely solely on a single instance to prove the existence of an

unconstitutional custom.” Franklin, 115 F.4th at 472 (quoting Winkler v. Madison County, 893

F.3d 877, 901 (6th Cir. 2018)) (citation modified); see also id. (summarizing recent Sixth Circuit

caselaw finding that one, and up to three, instances of past misconduct were insufficient to

establish a “pattern,” but five instances were adequate); Nouri v. Cnty. of Oakland, 615 F. App’x

291, 296 (6th Cir. 2015) (“But we have never found notice of a pattern of misconduct (or the

pattern itself) solely from the mistreatment of the plaintiff.” (citation omitted)); Miller v. City of

Memphis, No. 2:23-CV-02315-MSN-ATC, 2025 WL 2946183, at *4 (W.D. Tenn. July 7, 2025),

report and recommendation adopted, No. 2:23-CV-02315-MSN-ATC, 2025 WL 2811041 (W.D.

Tenn. Sept. 29, 2025).

Starting with Plaintiff’s first theory of municipal liability (the second avenue), Plaintiff

says that Defendant is liable due to actions of a final policymaker because when Deaton “drafted

[Plaintiff’s] termination letter and approved discipline” for Plaintiff, those were “actions taken

with final policymaking authority.” (ECF No. 67 at PageID 466). But Plaintiff offers no law to

support his allegation that Deaton’s approval of Plaintiff’s suspension or termination amounted to

a final policymaking decision. And Plaintiff later undermines his own contention that Deaton was

even responsible for these decisions. (See ECF No. 67 at PageID 454 (“Deaton testified that the

decision to suspend and later terminate [Plaintiff] was made by Corporate Security and Human

Resources, not by him personally.”).) Plaintiff also provides no state or local law, or even an

internal policy of Defendant, to demonstrate that Deaton, Blakney, or Matthews had final authority

to establish municipal policy on behalf of Defendant. Plaintiff’s only evidence that the conduct of

Deaton, Blakney, or Matthews may be attributed to Defendant under § 1983 is that they held

supervisory positions. But “[m]ere authority to exercise discretion while performing particular

functions does not make a municipal employee a final policymaker . . . [.]” Feliciano, 988 F.2d at

655. Plaintiff’s ipse dixit about Deaton’s authority as a final policymaker is insufficient to impose

liability on Defendant pursuant to § 1983.

Plaintiff’s other argument is that Defendant had a policy or custom of tolerance for

constitutional violations. He asserts that Defendant was “on notice of the hostile environment

through multiple grievances, an EEOC charge, and the May 2023 settlement that required

management to conduct civility training.” (ECF No. 67 at PageID 466.) He also says that

Defendant acted with deliberate indifference to the 2019 COCEA being a violation of his due

process rights because in arbitration proceedings between Defendant and another unnamed

employee, enforcement of the other employee’s COCEA “was deemed improper due to MLGW’s

failure to adhere to . . . MOU-mandated due process protections.” (ECF No. 67 at PageID 466.)

But neither Plaintiff’s list of personal grievances, nor the singular instance of an arbitration award

for another employee, is sufficient to establish a clear, consistent pattern of deliberate indifference

amounting to a custom of tolerance. Nouri, 615 F. App’x at 296; Franklin, 115 F.4th at 472.

Plaintiff has failed to show that his rights were violated due to a municipal policy or

custom, so Defendant cannot be held liable for Plaintiff’s injuries. Defendant is therefore entitled

to summary judgment on Plaintiff’s claims under 42 U.S.C. §§ 1981 and 1983, and its Motion is

GRANTED for those claims.

D. Negligent Infliction of Emotional Distress Claim

Finally, Defendant asserts that it is entitled to summary judgment on Plaintiff’s state law

claim for negligent infliction of emotional distress (“NIED”). In his Complaint, Plaintiff

characterizes this claim as arising under the Tennessee Healthy Workplace Act (“THWA”),

alleging that Defendant “[has] violated every provision of the [THWA] and [the City of Memphis’]

own ‘Respectful Workplace Policy.’” (See ECF No. 1 at PageID 22–23.) Defendant contends that

Plaintiff’s NIED claim must fail for two reasons. First, because the THWA does not provide an

independent cause of action; it merely incentivizes employers to adopt policies that comply with

its model policy. (ECF No. 63-1 at PageID 230 (citing Tenn. Code Ann. § 50-1-504(b)).) And

second, that even if read as an independent state law claim, it still fails because it is barred by the

exclusive remedy provision of the Tennessee Worker’s Compensation ACT (“TWCA”). (Id. at

PageID 231.)

To start, Plaintiff fails to address his NIED claim anywhere in his response to Defendant’s

Motion. As a result, this claim is deemed waived. Alexander v. Carter for Byrd, 733 F. App’x

256, 261 (6th Cir. 2018) (citing Haddad, 610 F. App’x at 568–69). However, even in the absence

of such waiver, the claim fails on the merits. The THWA explicitly provides that “[n]othing in this

section creates a cause of action against an employer who does not adopt the model policy . . . or

adopt a policy conforming to the requirements set out in § 50-1-503(b).” Tenn. Code Ann. § 50-

1-504(b). And because Plaintiff’s NIED claim arises out of essentially the same circumstances as

his civil rights claims, the Tennessee Governmental Tort Liability Act (“TGTLA”) shields

Defendant from liability, even if Plaintiff’s claim is construed as a state law negligence claim. See

DeSoto v. Bd. of Parks & Recreation, 64 F. Supp. 3d 1070, 1086 (M.D. Tenn. 2014) (dismissing

NIED claim because the TGTLA preserves municipal immunity for negligent injuries arising from

alleged civil rights violations). Defendant’s Motion for Summary Judgment is thus GRANTED

with respect to Plaintiff’s NIED claim.

CONCLUSION

For the reasons explained above, Defendant’s Motion for Summary Judgment (ECF No.

63) is GRANTED for all claims.

IT IS SO ORDERED, this 19th day of March, 2026.

s/ Mark S. Norris

MARK S. NORRIS

UNITED STATES DISTRICT JUDGE