Hood v. City of Memphis Pub. Works Div.

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HARVELL HOOD, Plaintiff-Appellant, v. CITY OF MEMPHIS PUBLIC WORKS DIVISION, Defendant-Appellee.

No. 21-5372

United States Court of Appeals, Sixth Circuit

February 10, 2023

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

Before: SUHRHEINRICH, CLAY, and DAVIS, Circuit Judges.

OPINION

CLAY CIRCUIT JUDGE

Plaintiff Harvell Hood appeals the district court's order granting Defendants' motion for summary judgment. Hood alleges retaliation and race discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C §§ 2000e, et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; the Tennessee Human Rights Act (the "THRA"), Tenn. Code Ann. §§ 4-21-101 et seq.; the Tennessee Public Protection Act (the "TPPA"), Tenn. Code Ann. § 50-1304; and Tennessee's common law whistleblower protection. For the reasons set forth below, we AFFIRM the district court's judgment.

I. BACKGROUND

A. Factual Background

Harvell Hood, an African-American man, was employed as a part-time temporary crewman employee by Defendant, City of Memphis Public Works Division ("the City"), at the Stiles Waste Treatment Plant ("Stiles").

Hood alleges that while he worked for the City, he was subjected to sexual and racial discrimination, humiliation, and a hostile work environment by his supervisor. Through deposition testimony, Hood articulates specific instances of alleged harassment by his supervisor, Jeff Alloway. Hood alleges that Alloway made lewd statements to him and other workers, including "suck my penis" or "you look good on your knees." (Hood Dep., R. 69-26, Page ID #1908, 1914, 1935, 1949). Hood testified that Alloway also used racial slurs on the job, including calling him and other Black crewman the "N word." (Id., Page ID #1908, 1923, 1935, 1949). Beyond this harassment, Hood testified that his crew was required to work in hazardous environments without proper safety equipment.

On September 22, 2016, Hood reported his claims for workplace discrimination and safety to the City's Labor Relations Department, now the City's Equity, Diversity and Inclusion Office ("EDI"). Responding to those claims, on November 15, 2016, the City, and Alloway's immediate supervisor, Jack Keith, conducted a fact-finding hearing regarding the charges against Alloway for respectful workplace and safety violations. Hood did not include his allegations of the use of racial slurs in his EDI report and those allegations were therefore not part of the investigation. Alloway admitted he had made the inappropriate sexual comments and the hearing panel found that Alloway violated the City's policies and procedures. Further, the hearing panel imposed a five-day suspension without pay against Alloway and also ordered him to attend a mandatory counseling program administered by the City Employment Assistance Program ("EAP"). By January 12, 2017, Alloway had successfully completed the EAP program and returned to work.

While the EDI investigation was underway, on October 13, 2016, Hood injured his left knee while working. He entered the City's "On the Job Injury" ("OJI") medical rehabilitation program. Hood's OJI treatment was overseen by Sedgwick, a third-party claims processing service. When Hood went on OJI medical leave, he was left on the City payroll to retain eligibility for OJI benefits, but he did not receive other compensation. Hood received his last paycheck in November 2016. The City's OJI policy was that a claim would be denied if an employee did not follow the treating physician's orders and, as a result, could not be cleared for duty. The City only allowed employees to return to work after Sedgwick cleared them for full duty.

On January 26, 2017, Hood's physician wrote that he could be released to work full duty without restrictions. On the release form, Hood's physician advised for a follow-up appointment, but according to Hood, did not specify a date or alert him of an appointment. Sedgwick claims that Hood's physician alerted them that a follow-up doctor's appointment was scheduled, and Hood did not attend this appointment. On May 17, 2017, Sedgwick sent a letter to Hood informing him that he had missed an appointment, and that a failure to comply with the treating physician's orders was grounds for denial of his claim. After receiving no response, Sedgwick, by letter, dated June 9, 2017, advised Hood that it was closing his file based on his missed appointment. Hood claims that he was unaware of his missed appointment and alleged violation of OJI policy, and that he did not receive any letter or written communication from the City or Sedgwick that indicated he missed an appointment.

The record is not clear as to why Sedgwick monitored Hood's claim after he was released by his physician. Zaneta Cotton, Sedgwick's claims team lead, testified that OJI involvement terminates after a physician releases a patient back to work. Hood's note releasing him to work without restriction on January 26, 2017 was confirmed to be in Sedgwick's records. Nothing in the record explains why Sedgwick denied Hood's claim, when his purported missed doctor's appointment occurred after his claim with Sedgwick should have been terminated.

Despite this error, on June 9, 2017, Keith received correspondence from Sedgwick, advising that Hood's OJI claim was terminated because he had stopped attending his scheduled treatment appointments. The City was then informed of Hood's OJI claim terminating due to his missed appointment, and subsequently, on June 22, 2017, Hood was removed from payroll. The City's policy is to not send separation letters to departing employees, and thus, the City did not send a separation letter to Hood. Hood, purportedly unaware of his separation, on June 14, 2017, discussed coming back to work with the City's plant manager, Alvin Childers, and Keith, and stated that he was released from OJI. Because Keith received notice of the OJI claim's termination prior to this meeting, he questioned the validity of Hood's release form.

As to Hood's employment opportunities, the Stiles project in which Hood was employed ended in December 2016 while he was on OJI. After the project ended, several temporary employees remained at the plant and eventually were transferred in January 2017 to another division. However, because Hood was on OJI, he was not transferred or retained during this period of time.

Keith spoke with Hood in July 2017 about available temporary positions at Stiles, and he advised him of a heavy equipment operator position that required a Class B Commercial Driver's license, but Hood was ineligible because he did not have the necessary license. Accordingly, Hood did not apply to this position. Hood then applied for a commercial license class through the City so he could bid for a mechanical operator position. According to the City, Hood was given a test to apply, and scored the lowest of the six applicants. The City contends that Hood's performance resulted in him not being selected for the class. Hood testified that he did not take a test, but had an interview with three individuals instead. Whether considered an interview or a test, the City avers that it determined that Hood did not qualify for the class.

Hood, however, alleges that his inability to secure work with the City was due to the City's active retaliation against him for the complaints he submitted with the EEOC and management.

B. Procedural History

Hood filed two complaints with the EEOC, the first for race discrimination and the second for retaliation. The City responded to both complaints. The EEOC subsequently issued a dismissal and notice of rights letter for each.

On November 29, 2017, Hood filed a pro se complaint against the City and Alloway on a printed fill-in-the-blank complaint form provided to him by the district court. Hood alleged discrimination based on race, color, gender, religion, and retaliation, in violation of Title VII. On January 31, 2018, on the magistrate judge's recommendation, the court sua sponte dismissed Hood's discrimination claims for failure to state a claim but allowed Hood's retaliation claim against the City to proceed. Neither party objected to the magistrate judge's report and recommendation. After the court partially dismissed Hood's pro se complaint and counsel appeared and moved on Hood's behalf to amend the complaint, the court granted leave for Hood to file subsequent amended complaints.

Hood's operative complaint is his second amended complaint filed on September 6, 2018. Through that complaint, Hood alleged seven causes of action. (Id.) Six of those claims are for retaliation, and they arise under 42 U.S.C. § 1981; 42 U.S.C. § 1983; Title VII; the THRA; the TPPA; and Tennessee's common law whistleblower protection. Through those claims, Hood alleges that the City denied him employment and refused to allow him to come to work as a result of his complaints filed with the EEOC and City management. Hood also brings one claim of racial discrimination^[1] under the same statutes as his retaliation claims.

On November 2, 2020, Defendants moved for summary judgment, and on March 10, 2021, the district court granted the motion and dismissed Hood's operative complaint. Hood timely appealed. In his appeal, Hood challenges the district court's orders: (1) dismissing Hood's initial complaint; (2) granting Defendants' motion for summary judgment; and (3) dismissing Hood's sexual harassment claim.

II. DISCUSSION

A. Summary Judgment Motion

1. Standard of Review

This Court reviews a district court's grant of a motion for summary judgment de novo. Thacker v. Ethicon Inc., 47 F.4th 451,458 (6th Cir. 2022) (citations omitted). Summary judgment is properly...