IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NORTHEASTERN DIVISION PATTI DAVIS, ) ) Case No: 2:15-cv-0071 Plaintiff, ) ) CHIEF JUDGE CRENSHAW v. ) ) MAGISTRATE JUDGE BROWN CUMBERLAND CONTAINER CORP., ) ) JURY DEMAND Defendant. ) JOINT PRETRIAL ORDER Comes now the Parties, Plaintiff, Patti Davis ( Plaintiff ) and Defendant Cumberland Container Corp. ( Defendant ), by and through counsel, and files this proposed Joint Pre Trial Order pursuant to the Court s Memorandum and Order of September 18, 2017 [Dkt. 49] and the prior Scheduling Order [Dkt. 22]. The Parties state as follows: 1. Amendment of Pleadings. The pleadings are amended to conform to this Pretrial Order and this Pretrial Order supplants the pleadings. 2. Statement of Subject Matter Jurisdiction. Plaintiff s claims are brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. and the Age Discrimination in Employment Act, 29 U.S.C. 621 et. seq. This Court has jurisdiction under 28 U.S.C. 1343 (a)(4) (protection of civil rights) and 28 U.S.C. 1331 (federal question jurisdiction). Subject matter jurisdiction is not in dispute. 3. Plaintiff s Theory of the Case. From 1993 through the present, Plaintiff has been employed by Cumberland Container Corp. Plaintiff was hired by Defendant in 1993 in the 1 Case 2:15-cv-00071 Document 69 Filed 10/02/17 Page 1 of 7 PageID #: 440
Assembly Department as a Utility worker. Approximately four (4) years later, Defendant transferred Plaintiff to the Print Room in a full-time position. Since 1993, she has been a full-time employee of Cumberland Container and worked 40 or more hours a week. From 1997 through 2014, Plaintiff worked in the Print Room where she was qualified for her job and never received any formal disciplinary actions by Defendant. In 2013, an informal discussion occurred between General Manager Chris Landers and Plaintiff during which they discussed the possibility of ordering stock sheets in addition to her other duties. Plaintiff inquired whether the additional task included a raise, to which there was no response. No further discussion occurred regarding the stock sheets, and Plaintiff did not refuse any additional responsibilities. On November 12, 2014, Landers informed her that they were consolidating the Print Room job with the task of the rotary dies. Landers mentioned nothing about the sheet orders during that conversation. During that conversation, Landers informed her that he was transferring her to a different position. Landers informed her that we could do this the easy way or the hard way and that he wanted a man to do the job in the Print Room because the rotary dies were heavy. She informed him that she was capable of helping lift the dies and that she had done so previously. Defendant subsequently transferred Plaintiff to the Assembly and Labeling Department, which was in the Lowes Building. The person who replaced Plaintiff in the Print Room was a younger male, Andrew Miller, who was approximately 20 years younger than she. In the Assembly and Labeling Department in the Lowes Building, Plaintiff occasionally worked overtime, but the opportunities decreased steadily from 2013-2016, and Plaintiff s annual earnings decreased after Defendant transferred her to the Assembly and Labeling Department. In the Assembly and Labeling Department, the terms and conditions of her position changed as compared to the position in the print shop. For instance, the jobs require employees to 2 Case 2:15-cv-00071 Document 69 Filed 10/02/17 Page 2 of 7 PageID #: 441
lifting heavy boxes. From 2014 through early 2016, there was no time clock in the Lowes building; therefore she had to walk across the parking lot to clock in and out for work. Defendant did not clear any ice from the parking lot during the winter months, which makes for a treacherous walk for her to simply clock in and out. There is unsafe equipment in the Lowes Building; for example, one of the band saws did not, and still does not, have a safety guard and the dust collector did not, and still does not, work adequately. Plaintiff claims that the decision to transfer to the position in the Assembly and Labeling Department were motivated on the basis of her gender due to the comments of her supervisor and/or her age due to the fact that she was replaced by a younger male employee in the print room. 4. Defendant s Theory of the Case. Cumberland Container Corporation is a Tennessee corporation that began in 1969. Located in Monterey, Tennessee, the Company processes corrugated sheets, including printing, cutting, folding, binding and delivery of corrugated boxes. Like many businesses in the Upper Cumberland area, Cumberland Container has been significantly impacted by economic downturn. The Company has experienced a decline in business demand over the past few years, culminating in a 40% reduction in demand from its largest customer and the complete loss of two of its highest volume customers. As a result, between thirty (30) and fifty (50) million square feet of yearly production has been lost. In fact, in 2014 alone, Cumberland Container logged over 4000 hours lost due to lack of work, despite the fact that the number of hourly employees was at its lowest. These losses have required significant changes in the Company s operations, including downsizing, work re-distribution and job consolidation. Ms. Patti Davis was hired by Cumberland Container in August 1993 in the assembly department. She was later moved into the print room, where she was responsible for preparing 3 Case 2:15-cv-00071 Document 69 Filed 10/02/17 Page 3 of 7 PageID #: 442
documents for operators to use and printing load tags for shipping. When the business demand declined, however, her responsibilities were greatly reduced, resulting in the need to consolidate the print job with other responsibilities. At this time, the print job responsibilities were only requiring approximately twenty-five (25) hours of work per week, but Ms. Davis continued to be paid for forty (40) hours. Around mid-2014, Ms. Davis was approached and was requested to take on additional responsibilities, in order to maintain a full forty (40) hour work week. She, however, declined the additional responsibilities, and, as a result, she was moved into another area of the facility where she could be given a forty (40) hour work week. Her pay and benefits did not change. This move was made in order to allow her to maximize the number of hours she could work, after she declined the additional job duties. While most employees are sent home when the work demand falls below 40 hours in the week, the assembly department is one area that has a higher likelihood of maintaining a 40 hour work-week. All treatment accorded to Ms. Davis with respect to her employment was fully justified and was based on legitimate, non-discriminatory business reasons. 5. Statement of the Issues. A. Plaintiff s Proposed Statement of Issues for the Jury. i. Whether Plaintiff proves that gender was the cause of Defendant s decision to transfer Plaintiff to a different position and modify the terms and conditions of Plaintiff s employment. Whether Plaintiff proves that his age was the cause of Defendant s decision to transfer Plaintiff to a different position and modify the terms and conditions of Plaintiff s employment. i Whether Plaintiff proves the amount of damages (front pay, back pay, compensatory damages) would reasonable compensate Plaintiff. 4 Case 2:15-cv-00071 Document 69 Filed 10/02/17 Page 4 of 7 PageID #: 443
iv. Whether the Defendant s actions were willful violations of Title VII or the ADEA allowing Plaintiff to recover punitive or liquidated damages. B. Plaintiff s Proposed Issues for the Court. i. Admissibility of Evidence i The amount of front pay to which Plaintiff is entitled (if proven) If Plaintiff proves Defendant violated Title VII and or the ADEA, the amount of attorney s fees and costs to which Plaintiff is entitled. C. Defendant s Proposed Statement of Issues for the Jury. i. Whether Plaintiff s age was a determinative factor in Cumberland Container s decision to move her to the Assembly Department? Whether Plaintiff s gender was a determinative factor in Cumberland Container s decision to move her to the Assembly Department? i Whether Plaintiff s move to the Assembly Department constitutes an adverse employment action? iv. Whether Plaintiff has any damages as a result of her move to the Assembly Department? v. Whether the position given to Andrew Miller on November 12, 2014, was substantially equivalent to the position Plaintiff held prior to November 12, 2014? vi.. Whether Andrew Miller s job responsibilities on and after November 12, 2014, were equivalent to Plaintiff s job responsibilities on or before November 12, 2014? v Whether Cumberland Container had legitimate business reasons for moving Plaintiff into the Assembly Department on November 12, 2014? D. Defendant s Proposed Issues for the Court. 5 Case 2:15-cv-00071 Document 69 Filed 10/02/17 Page 5 of 7 PageID #: 444
i. Whether the Plaintiff should be precluded from testifying at trial that she lost wages as a result of her move to the Assembly Department? [Docket Entry Nos. 47 and 48] Whether Cumberland Container s Motion in Limine should be granted concerning Plaintiff s testimony as to certain facts at trial? [Docket Entry No. 45] i Whether the Plaintiff should be precluded from referencing, offering testimony or otherwise introducing evidence related to punitive damages during the liability phase of the trial? [Docket Entry Nos. 41 and 42] iv. Whether the Plaintiff has proven to a preponderance of the evidence that Defendant engaged in willful and/or malicious conduct which would entitle Plaintiff to liquidated damages under the ADEA, or punitive damages under Title VII? v. Cumberland Container reserves the right to file a Motion for Judgment as a Matter of Law pursuant to Rule 50, Fed. R. Civ. P., at the close of Plaintiff s proof and at the close of the evidence, on the issues of liability under the ADEA and Title VII and damages. 6. Plaintiff s Statement of the Relief Sought. Plaintiff seeks, front pay, back pay, compensatory damages, punitive damages, past emotional and mental distress, future emotional and mental distress, litigation costs, expenses, and attorneys fees. The jury decides the amount of compensatory and punitive damages pursuant to Plaintiff s current theories under federal law. Reasonable attorney fees are recoverable under federal theories. If awarded, attorney fees will be determined by the Court post trial. Defendant s Statement of Relief Sought. Defendant seeks its costs and reasonable attorneys fees in this matter. 6 Case 2:15-cv-00071 Document 69 Filed 10/02/17 Page 6 of 7 PageID #: 445
7. Anticipated Evidentiary Disputes. Defendant has filed a number of motions in limine (See e.g., Defendant s Proposed Issues for the Court, supra.) challenging certain aspects of Plaintiff s proof. 8. Estimated Length of Trial. The parties believe this matter can be tried in three (3) days. IT IS SO ORDERED. WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE 7 Case 2:15-cv-00071 Document 69 Filed 10/02/17 Page 7 of 7 PageID #: 446