Moling v. O'reilly Auto. Inc.

763 F.Supp.2d 956

Rhonda MOLING, Plaintiff,

v.O'REILLY AUTOMOTIVE, INC., Defendant.

No. 09–1100.

United States District Court, W.D. Tennessee, Eastern Division.

Jan. 13, 2011.

Teresa A. Luna, Spragins Barnett & Cobb, Jackson, TN, for Plaintiff.Melissa A. Maravich, Mary C. Hamm, Burch Porter & Johnson, Memphis, TN, for Defendant.

ORDER GRANTING DEFENDANT'S AMENDED MOTION FOR SUMMARY JUDGMENT

J. DANIEL BREEN, District Judge.

INTRODUCTION

The Plaintiff, Rhonda Moling, initially brought this action against the Defendant, O'Reilly Automotive, Inc. (“O'Reilly”), in the Circuit Court for the Twenty–Sixth Judicial District at Jackson, Tennessee on March 16, 2009, alleging sexual harassment, discrimination on the basis of gender, and retaliation in violation of the Tennessee Human Rights Act, Tennessee Code Annotated § 4–21–101, et seq. (“THRA”). The matter was removed to this Court on April 24, 2009 on diversity of citizenship grounds. Before the Court is the Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

STANDARD OF REVIEW

Rule 56 provides in pertinent part that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).¹ “The district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party.” American Civil Liberties Union of Ky. v. Grayson County, Ky., 591 F.3d 837, 843 (6th Cir.2010), reh'g denied, 605 F.3d 426 (6th Cir.2010) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “The opposing party must present more than a ‘mere scintilla’ of evidence; the evidence must be such that a reasonable jury could find for the non-movant.” Defoe ex rel. Defoe v. Spiva, 625 F.3d 324, 330 (6th Cir.2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Entry of summary judgment is appropriate ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ ” In re Morris, 260 F.3d 654, 665 (6th Cir.2001) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

FACTS

The facts as construed in the light most favorable to the nonmoving party are as follows. O'Reilly owns and operates thousands of automotive parts stores nationwide. (Dep. of Fred Carrington (“Carrington Dep.”) at 24.) At the times the relevant acts occurred, Fred Carrington was a district manager overseeing approximately nine O'Reilly stores, including the two located in Jackson, Tennessee. ( Id. at 24, 38.) He focused on making the stores profitable and interacted primarily with store managers; he had no involvement in the day-to-day operations of the various locations unless a manager was having a problem. ( Id. at 16.) Carrington also trained store managers and, to some extent, assistant managers. ( Id. at 20.) Managers were provided with training manuals and all employees were trained with respect to the company's sexual harassment policy. ( Id. at 20, 49.)

The Jackson locations consisted of a “north store” (1172) that employed approximately eleven to twelve persons and a smaller “south store” (1284). ( Id. at 22–23.) Bob Stonehouse, who was based in Oklahoma City, worked as the regional loss prevention auditor for some fifty O'Reilly stores, including those in Carrington's district. ( Id. at 44–45.) Generally speaking, Stonehouse performed full store audits on an annual basis. (Dep. of Robert Eugene Stonehouse (“Stonehouse Dep.”) at 29.) The audits entailed “[t]ak[ing] a look at their paperwork, making sure that store managers are following procedures, counting money, making sure the money is being counted correctly, [and] mak[ing] sure that the procedures that O'Reilly asks [of] them on an everyday basis” are followed. ( Id. at 32.) The audits were conducted pursuant to certain criteria, set out on an “audit list” used for every store. ( Id.)

Moling was hired as a parts specialist at the north store on January 15, 2008 by Carl Ouellette, the store's manager. (Compl. ¶ 6; Am. Statement of Undisputed Material Facts in Supp. of Def. O'Reilly Auto., Inc.'s Am. Mot. for Summ. J. ¶ 12; Carrington Dep. at 37.) The job required her to work the store's counter selling automotive parts. (Carrington Dep. at 36–37; Am. Statement of Undisputed Material Facts in Supp. of Def. O'Reilly Auto., Inc.'s Am. Mot. for Summ. J., Ex. 6.) She was promoted to the store manager position at the south Jackson location as of March 16, 2008. (Carrington Dep. at 38; Dep. of Rhonda Moling (“Moling Dep.”) at 277, 280, 289.)

In March 2008, shortly after Moling's promotion, Stonehouse was in the area to attend a store manager's meeting conducted by Carrington to address shrinkage. ² (Stonehouse Dep. at 35, 38–39.) The meeting was to occur in the banquet room of a Jackson hotel. ( Id. at 38–39.) He was asked to stop by the south store on his way to the event in order to meet Moling. ( Id. at 35.) During the subsequent store manager's meeting, he spoke with her again one-on-one concerning business matters. ( Id. at 35, 39.)

Stonehouse denies meeting privately with Moling at the store or that anything unusual happened. ( Id. at 39–40.) On the other hand, the Plaintiff recalled the following acts took place during Stonehouse's March 2008 visit to the south store. After they were introduced and she and Stonehouse stood outside the store's office, the auditor brushed her hand and said, “Do you know people can pass audits without me even going through the drawers?” (Moling Dep. at 291–92, 305.) She replied, “Excuse me?” and he repeated his statement. ( Id. at 292.) Moling told him, “Well, I think you need to go through those [drawers] because you're not getting in mine” and walked away toward the front counter. ( Id.). She was assisting with a customer and went to retrieve an invoice from the nearby printer when Stonehouse stepped up and held out his hand. ( Id. at 292–93.) He said, “Let me show you something” and then asked, “Didn't you notice?” ( Id. at 293.) When Moling indicated she did not know what he was talking about, he said, “The ring comes off,” referring to his wedding band. ( Id.)

She contends that she and Stonehouse proceeded into the store office to look over the audit list. ( Id.) As they did so, he explained that his wife had been in a car accident and was unable to engage in sexual activity due to pins in her hips and back. ( Id.) The auditor at one point looked at her, grinned, and said, “Oh, your eyes are just so pretty.” ( Id. at 313–14.) He also asked if he could spend the night at her house instead of the hotel and run her a bubble bath. ( Id. at 293, 307–08.) She refused and started to walk out of the office when he said, “All right. Come back in here. We'll just go over the checklist.” ( Id. at 293.) One of the items on the list involved the store safe, which was located behind the door of the tiny office and required the door be closed in order to reach it. ( Id. at 294.) As Moling moved toward the safe, Stonehouse closed the door, leaned her back against the desk and attempted to kiss her on the mouth. ( Id.) The Plaintiff rebuffed him and again left the office, not to return until he left the store a few hours later. ( Id. at 294–95.) During that time, however, he stared and smiled “cutesy” at her. ( Id. at 295.) Moling continued to remind Stonehouse he was married and tell him she was not interested in having an intimate relationship with him. ( Id. at 294–323.)

She did not report the incident to management at the time because Stonehouse “wasn't around a lot.” ( Id. at 343.) Indeed, after the events at the store, Moling saw Stonehouse on only a couple of occasions. ( Id.) From the March incident to the time she left O'Reilly to have colon surgery in June 2008, he sometimes phoned and engaged in “little flirty talk,” such as questions about what she was wearing or whether she needed a massage, whereupon she hung up. ( Id. at 346–47, 351.) She described other calls as a brief couple of sentences of such talk and then he would move on to business matters. ( Id. at 347.) The Plaintiff stated in her deposition that he “wasn't just pounding the harassment,” because she would hang up on him. ( Id.) Sometimes, his calls were strictly business. ( Id. at 348.) She estimated the “flirty” calls occurred three or four times. ( Id. at 351.)

In June 2008, the Plaintiff called Ouellette, her former manager who was still at the north store, on approximately two occasions with questions. ( Id. at 286, 357.) He had asked her to do so if she needed help. ( Id.) Apparently, however, Ouellette's wife, from whom he was separated, took offense to her calls. ( Id. at 357–58.) Moling referred to this in her deposition as a “minor” incident. ( Id. at 357.) Carrington told her to stop phoning, as Ouellette's “wife is really taking it the wrong way.” ( Id. at 357–58, 365; Carrington Dep. at 71.) In her deposition she said it was no problem; she simply called someone else for help. (Moling Dep. at 358.)

On June 21, 2008, the Plaintiff left her employment to have colon surgery. ( Id. at 368.) She had been working for O'Reilly for only five months and was ineligible for leave under either the Family and Medical Leave Act or the company's leave policy. ( Id.) Thus, she was terminated and, on August 25, 2008, rehired as assistant manager of the north store under Ouellette's supervision. (Am. Statement of Undisputed Material Facts in Supp. of Def. O'Reilly Auto., Inc.'s Am. Mot. for Summ. J. ¶ 20; Moling Dep. at 405–06.)

Ouellette soon went on leave himself for back surgery from September 8 to October 27, 2008. (Am. Statement of Undisputed Material Facts in Supp. of Def....