UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA ELIZABETH HAWTHORNE, v. Plaintiff, UNIVERSITY OF TENNESSEE HEALTH SCIENCES CENTER, Defendant. Case No. 1:15-cv-55 Judge Travis R. McDonough Magistrate Judge Susan K. Lee FINAL PRETRIAL ORDER This matter having come before the Court on October 17, 2016 at 3:00 p.m., at a pretrial conference pursuant to Rule 16 of the Federal Rules of Civil Procedure, and Doug S. Hamill and Robert W. Wheeler having appeared as counsel for the Plaintiff and Brian A. Lapps, Jr. and Michael D. Fitzgerald having appeared as counsel for the Defendant, 1 the following action was taken: (1 Jurisdiction: This is a civil action brought under Title VII of the Civil Rights Act of 1964 ( Title VII for race discrimination and retaliation. Jurisdiction of the Court is invoked pursuant to 42 U.S.C. 1331. The jurisdiction of the Court is not disputed. (2 General Nature of the Claims of the Parties: (a Stipulated Facts: 1. Plaintiff was employed by The University of Tennessee (the University or Defendant as Community Outreach Coordinator for The Blues Project from June 1, 2013 until her termination on March 4, 2014. 2. Plaintiff is Caucasian. 1 The Defendant was misidentified in the caption of the original complaint as State of Tennessee d/b/a University of Tennessee Health Science Center. This Order, as reflected above, identifies the proper Defendant as the University of Tennessee, and all future filings should correspond thereto. Case 1:15-cv-00055-TRM-SKL Document 61 Filed 10/26/16 Page 1 of 9 PageID #: 852
3. Dr. Linda Moses was the Principal Investigator in charge of The Blues Project. 4. Dr. Moses is African-American. 5. Teresa Franklin was the Program Manager of The Blues Project. 6. Ms. Franklin is African-American. 7. Subject to objections, both parties may read into evidence at trial portions of the deposition transcript of Teresa Franklin. 8. At the time of her termination, Plaintiff s base salary was $3,001.59 per month. 9. Plaintiff s claim for back pay damages ends effective October 31, 2014. (b Plaintiff s Theory: This is a reverse race discrimination and retaliation case brought under Title VII. Plaintiff, who is Caucasian, was fired because of her race and because she complained of race discrimination. Plaintiff worked for The Blues Project, which was a grant-funded program administered by Defendant. Throughout most of her tenure, Plaintiff was the only Caucasian employee in the Chattanooga office. Most of her co-workers and all of her supervisors were African-American. Plaintiff s two supervisors, Teresa Franklin and Dr. Linda Moses (both African- American exhibited racial bias toward Plaintiff, while treating Plaintiff s minority coworkers more favorably. For example, an African-American co-worker accusingly questioned Plaintiff, What do you know about ghetto, Betsy?! This comment was made in the presence of Moses and Franklin. When Plaintiff complained about this raciallyoffensive accusation to Moses and Franklin, she was told, That s just Tamala. You ll have to get used to her. 2 Case 1:15-cv-00055-TRM-SKL Document 61 Filed 10/26/16 Page 2 of 9 PageID #: 853
Plaintiff s supervisors constantly scrutinized her performance, while applying racebased double standards to minority co-workers. For example, Plaintiff was blamed and punished in the form of a performance improvement plan for the lack of staff communication, even though Plaintiff s supervisors admitted that this problem was caused by co-workers. Plaintiff was also disciplined for being one-hour late once even though Plaintiff s supervisor knew that minority co-workers routinely abused the attendance policy and issued no discipline. Finally, even though all staff made data entry errors, Plaintiff was singled out for her mistakes. Shortly before Plaintiff was fired, she participated in a role-play exercise as part of the training for two new employees. Moses also participated in the exercise. In a meeting later that day in which Moses discussed Plaintiff s continued employment with the organization, Moses stated to Plaintiff, I don t think you re ghetto enough to work with our particular population. Plaintiff immediately complained of race discrimination to human resources and then to her new supervisor, Erricka Hill. Plaintiff s complaints were quickly reported to Franklin and Moses. Within two weeks, Plaintiff was fired. The termination reasons listed by Franklin and Moses are merely a pretext for unlawful race discrimination and retaliation for Plaintiff s complaint of race discrimination. Plaintiff requests a jury to try all issues. (c Defendant s Theory: Plaintiff was employed as a Community Outreach Coordinator for the BLUES Project, a grant-funded research and community outreach project conducted by the University of Tennessee Health Science Center. The BLUES Project had offices in Memphis and Chattanooga, which is where Plaintiff worked. Dr. Linda Moses was the 3 Case 1:15-cv-00055-TRM-SKL Document 61 Filed 10/26/16 Page 3 of 9 PageID #: 854
principal investigator on the BLUES Project. Dr. Moses, who interviewed Plaintiff in person, made the decision to hire Plaintiff. Soon after her hire, Plaintiff began having performance problems. Plaintiff made a high number of mistakes, even after being retrained. She also made more errors in data entry than her co-workers. As a result of Plaintiff s performance and her inability to relate to other team members, Ms. Franklin recommended to Dr. Moses that she terminate Plaintiff during her six-month probationary period. Dr. Moses, however, convinced Chandra Alston, the Associate Vice Chancellor for Human Resources, to extend Plaintiff s probationary period for an additional three months. Accordingly, Human Resources extended Plaintiff s probationary period and Ms. Franklin gave her a performance improvement plan (PIP. Plaintiff s performance problems continued. Further, on February 18, 2014, Dr. Moses conducted a role-playing exercise with Plaintiff. Dr. Moses pretended to be a prospective client and Plaintiff was to explain the BLUES Project and obtain her informed consent. Plaintiff did not satisfactorily explain the project to Dr. Moses, and Dr. Moses did not believe Plaintiff answered her questions sufficiently to obtain her informed consent. After the role play, Dr. Moses told Plaintiff that she had not explained the BLUES Project sufficiently to obtain a client s informed consent. Plaintiff s allegation that Dr. Moses told Plaintiff that she was not ghetto enough to work with our particular population is not true. After Dr. Moses observed Plaintiff s performance in the role-play exercise, she concluded that Plaintiff could not satisfactorily perform her job and decided that Plaintiff s employment should be terminated. On February 19, 2014, during their return trip to 4 Case 1:15-cv-00055-TRM-SKL Document 61 Filed 10/26/16 Page 4 of 9 PageID #: 855
Memphis, Dr. Moses told Ms. Franklin that she had lost confidence in Plaintiff s ability to do the job and that she agreed that the BLUES Project should move forward with terminating Plaintiff s employment. Ms. Franklin conveyed that message to the Office of Human Resources. On February 19, 2014, the day after the role-play exercise in which she learned that her continued employment was in jeopardy and ten days before the end of her extended probationary period, Plaintiff sent an e-mail to Damon Davis in UTHSC s Office of Human Resources and included a reference to problems that she felt were becoming a racial issue. Mr. Davis did not inform Ms. Franklin or Dr. Moses about this e-mail. After reviewing the facts and determining that termination was justified, Ms. Alston issued a pre-termination letter dated February 26, 2014. On February 28, 2014, Ms. Alston conducted a pre-termination meeting with Plaintiff. On March 4, 2014, the University terminated Plaintiff. The University did not terminate Plaintiff because of her race or in retaliation for making a complaint of discrimination and did not treat her unlawfully in any manner. (3 Contested Issues of Law: The contested issues of law are as follows: 1. Certain evidentiary issues are also before the Court through the filing of various motions in limine, which involve requests to exclude: a. Determinations made by the Tennessee Human Rights Commission and the Equal Employment Opportunity Commission; b. Testimony of Office of Equity and Diversity (OED investigator Dustin Fulton and OED investigation records; c. Argument by Plaintiff for a mixed-motive claim; 5 Case 1:15-cv-00055-TRM-SKL Document 61 Filed 10/26/16 Page 5 of 9 PageID #: 856
d. Evidence of alleged discriminatory treatment of seven patients; and e. Evidence of alleged co-worker harassment. (4 Exhibits: The parties have disclosed all exhibits in accordance with Federal Rule of Procedure 26(a(3(C. All exhibits to be introduced have been pre-marked in such a way as to allow the Court to determine which party is offering them. The parties have prepared a joint list of exhibits. Three copies of this list have been provided to the Court at the final pretrial conference. The parties have endeavored to stipulate the admissibility of all exhibits. The parties cannot stipulate to the admissibility of the following exhibits: (a Plaintiffs Exhibits Defendant cannot stipulate to the following: 21. 3/4/14 Complaint form email (D463-64 2 39. Defendant s Response to Plaintiff s Second Set of Interrogatories and Requests for Production of Documents (b Defendant s Exhibits Plaintiff cannot stipulate to the following: 14-20. Interview notes of Dustin Fulton, investigation summary and determination of OED investigation. Plaintiff objects to admissibility pursuant to Fed.R.Evid. 403. See Plaintiff s motion in limine (Doc. 22. (5 Witnesses: The parties have disclosed all witnesses in accordance with Federal Rule of Civil Procedure 26(a(3(A. A list comprised of the names of all witnesses and their addresses and telephone numbers is as follows: (a List for Plaintiff: Plaintiff will call: 1. Plaintiff 2. Teresa Franklin (via deposition 2 Numbers correspond to the exhibit lists contained in the parties joint exhibit list. 6 Case 1:15-cv-00055-TRM-SKL Document 61 Filed 10/26/16 Page 6 of 9 PageID #: 857
3. Eric Bedwell 4711 Old Mission Road Chattanooga, TN 37411 (423 320-0012 Plaintiff may call: 1. Linda Moses 2. Erricka Hill (live or via deposition 3. Valerie Schultz 4. Any witness listed by Defendant 5. Any witness necessary for rebuttal (b List for Defendant: Defendant will call: 1. Dr. Linda Moses-Simmons Can be reached through counsel. 2. Teresa Franklin (by deposition 7941 Meadow Vale Drive Memphis, TN 38125 (901 834-7985 3. Chandra Alston Can be reached through counsel. 4. Rebeca Liriano 9659 Bull Pen Drive Ooltewah, TN 37363 (423 910-9091 5. Valerie Schultz 109 Norvell Drive Signal Mountain, TN 37377 7 Case 1:15-cv-00055-TRM-SKL Document 61 Filed 10/26/16 Page 7 of 9 PageID #: 858
(317 910-4100 Defendant may call: 1. Elizabeth Hawthorne 2. Dustin Fulton Can be reached through counsel. 3. Damon Davis Can be reached through counsel. 4. Erricka Hill 358 Glenwood Drive Chattanooga, TN 37404 (423 355-5338 5. Annteshae Maddox 8536 Ricardo Lane Hixson, TN 37343 (423 903-3017 6. Tamala McDuffie 1313 Swope Drive East Ridge, TN 37412 (423 800-1995 7. Any witness listed by Plaintiff. 8. Any witness needed for rebuttal. (6 Other Matters: This case is set for trial before the United States District Judge and a jury at 9:00 a.m. on November 1, 2016. Counsel shall be present on the first day before commencement of trial to take up any preliminary matters. The probable length of trial is 3 days. The parties should be prepared for trial on the date which has been assigned. If this case is not 8 Case 1:15-cv-00055-TRM-SKL Document 61 Filed 10/26/16 Page 8 of 9 PageID #: 859
heard immediately, it will be held in line until the following day or anytime during the week of the scheduled trial date. (7 This final pretrial order shall supplant the pleadings. APPROVED FOR ENTRY: /s/ Travis R. McDonough TRAVIS R. MCDONOUGH UNITED STATES DISTRICT JUDGE APPROVED AS TO FORM AND SUBSTANCE: BURNETTE, DOBSON & PINCHAK By: s/ Doug S. Hamill Doug S. Hamill, BPR No. 22825 Robert W. Wheeler, BPR No. 34485 711 Cherry Street Chattanooga, TN 37402 (423 266-2121 dhamill@bdplawfirm.com rwheeler@bdplawfirm.com Counsel for Plaintiff THE UNIVERSITY OF TENNESSEE By: s/ Brian A. Lapps, Jr. Brian A. Lapps, Jr., BPR No. 16185 Michael D. Fitzgerald, BPR No. 20079 Office of the General Counsel 719 Andy Holt Tower Knoxville, Tennessee 37996-0170 (865 974-3245 blapps@tennessee.edu mfitzge8@utk.edu Counsel for Defendant 9 Case 1:15-cv-00055-TRM-SKL Document 61 Filed 10/26/16 Page 9 of 9 PageID #: 860