Cook v. McHugh

193 F. Supp. 3d 866, 2016 WL 3280442, 2016 U.S. Dist. LEXIS 77951
CourtDistrict Court, M.D. Tennessee
DecidedJune 15, 2016
DocketNO. 3:13-cv-662
StatusPublished
Cited by3 cases

This text of 193 F. Supp. 3d 866 (Cook v. McHugh) is published on Counsel Stack Legal Research, covering District Court, M.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. McHugh, 193 F. Supp. 3d 866, 2016 WL 3280442, 2016 U.S. Dist. LEXIS 77951 (M.D. Tenn. 2016).

Opinion

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., UNITED STATES DISTRICT JUDGE

Charles Cook alleges that the United States Army discriminated against him in violation of the Tennessee Human Rights Act (“THRA”), Tennessee Code Annotated § 4-21-101 et seq., and retaliated against him in violation of Title VII of the Civil Rights Act of 1964 (“Title VH”), 42 U.S.C. § 2000e et seq} The Army has filed a motion to dismiss or, in the alternative, for summary judgment, arguing that Plaintiffs claims should be dismissed. (Doc. No. 41.) For the following reasons, the Army’s motion is GRANTED.

I. Factual and Procedural History

■ Plaintiff served as a flight simulator training instructor at Fort Campbell, Tennessee, for twenty-five years when a series of incidents caused the Army to take several allegedly adverse employment actions against him. The first incident occurred on November 4, 2010. Fort Campbell has designated specific areas on the post for physical training of military personnel and has limited vehicle traffic in those areas during certain hours of the day for the safety of the personnel. On November 4, 2010, the Plaintiff crossed the physical training route in a vehicle at a restricted time. Master Sergeant Brian Walls, who was on duty guarding the route, approached Plaintiff and requested that he take an alternate route because the road was closed for physical training. (Doc. No. 50 at 2-3.) Plaintiff responded that he was only crossing the route to get to the parking lot and did not change his direction. (Id. at 3.) Walls followed Plaintiff to the parking lot to discuss his failure to comply with his instructions. Walls later reported that Plaintiff was rude and told him to take the matter up with Plaintiffs supervisor. (Id.) Cook’s first-level supervisor, Carolyn Van-Bruggen, was out of the office at the time, so Walls filled out a form explaining the incident. (Id.) Upon her return on November 9, 2010, VanBruggen asked Plaintiff about the incident. Plaintiff did not deny that he ignored Walls’s direction, crossed the training route, and directed Walls to take it up with his supervisory chain. (Id. at 3-4.) Plaintiff responded to VanBruggen by e-mail, stating that he did not violate the policy limiting vehicular access to certain areas of the post during physical training because he only crossed the route and did not travel on it. (Id at 4.)

On November 23, 2010, John Watson, Plaintiff’s second-level supervisor, notified Plaintiff that he intended to take formal disciplinary action based on this incident. (Id. at 2, 4.) On December 2, 2010, Watson determined that the charge was valid. (Id. [869]*869at 4.) Watson met with Plaintiff, along with a union representative, and asked if he wanted to say anything. (Id.) Plaintiff indicated he did not wish to speak and also told his union representative not to speak. (Id. at 4-5.) Watson issued a formal Letter of Reprimand, which remained in Plaintiffs personnel file for one year. (Id. at 5.) On December 7, 2010, Plaintiff contacted the Fort Campbell Equal Employment Opportunity (“EEO”) Office by e-mail to request an appointment. (Id.)

The second incident occurred the same day that Watson issued the Letter of Reprimand. (Id.) Plaintiff was a member of a group called Leadership Fort Campbell. (Id.) On December 2, 2010, Plaintiff received an e-mail sent to all alumni of Leadership Fort Campbell requesting assistance for an upcoming event during regular duty hours. (Id.) Plaintiff responded by e-mail to the entire alumni e-mail group that he would like to help but would likely be required by his “supervisory chain of command” to take annual leave to participate, and that he did not have enough leave to participate. (Id. at 6.) Watson felt that Plaintiffs e-mail implied a lack of support for the Leadership Fort Campbell program at a higher level and decided to issue Plaintiff a written counseling. (Id.) Watson spoke with a union representative who told him that Plaintiff was not entitled to have a union representative with him when Watson issued the counseling because it was not disciplinary or an investigatory meeting. (Id.) .On December 8, 2010, Watson issued the written counseling. (Id.)

On December 9, 2010, Plaintiff met with an EEO specialist at Fort Campbell and advised her that he wanted to have his contact with the EEO on the record but did not want to file a complaint at that time. (Id. at 7; Doc. No. 43-3.) The EEO specialist provided Plaintiff with information regarding the EEO complaint process and emphasized that he had 45 days to initiate the EEO complaint process. (Id. at 14.) Instead, Plaintiff chose to file a union grievance in January 2011, alleging that VanBruggen and Watson had failed to follow union procedures when issuing the Letter of Reprimand and the written counseling. (Id.) Plaintiff did not initiate the EEO process until August 3, 2011, almost eight months after the two challenged employment actions, at which point he submitted the EEO intake questionnaire to the Fort Campbell EEO Offícé. (Id.; Doc. No. 43-3.) On September 4, 2011, Plaintiff filed a formal EEO complaint alleging, among other things, that the1 December 2010 Letter of Reprimand and written counseling were issued in a manner in violation of his union rights in retaliation for his prior EEO activity in October 2009. (Doc. No. 42-2.) ..

The third incident involved Plaintiffs multiple absences from his duty station without permission from his supervisor on three different dates, all in October of 2011. At the time, Plaintiffs first-level supervisor was Steve Zuercher. (Doc. No. 50 at 8.) In August 2011, when Zuercher moved into the supervisory position previously held by VanBruggen, he notified all personnel under his supervision that they were no longer required to sign in or out when attending work-related functions or events, but that they were required to request permission to ensure. that their work was not disrupted in their absence. (Id.) Consistent with this policy, Plaintiff had previously requested Zuercher’s permission to attend a, Leadership Fort Campbell training in August 2011.

However, on October 21, 2011, the Human Resources (“HR”) director notified Zuercher that Plaintiff allegedly had divulged privileged information that he had gained from the union while acting as a Leadership Fort Campbell mentor during [870]*870a function in October- 2011. (Id. at 8-9.) That allegation is not at issue in this matter, but during -that conversation, the HR Director revealed that Plaintiff had attended Leadership Fort Campbell trainings on October 18 and 20, 2011. Zuercher claims this was the first time he was aware that the Plaintiff had been absent from his duty station on these dates. (Id. at 9.) Plaintiff argues that he had notified Zuercher that he would be participating as a mentor with Leadership Fort Campbell and that Zuercher, like Plaintiff, was an alumni of Leadership Fort Campbell and received emails about its functions. Plaintiff felt that this was sufficient notice to Zuercher that he would be absent from his duty station on particular dates for Leadership Fort Campbell functions. (Id.) Plaintiff does not deny that he did not have Zuercher’s permission to be absent from work for the two trainings in October. (Id.)

Plaintiff ■ admits that he left his duty station without permission from his supervisor again on October 27, 2011, when he attended an EEO luncheon. (Id.

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Bluebook (online)
193 F. Supp. 3d 866, 2016 WL 3280442, 2016 U.S. Dist. LEXIS 77951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-mchugh-tnmd-2016.