Lattimore v. Wild Flavors, Inc.

Filing 75

MEMORANDUM OPINION & ORDER: 1) Motion of Pltf for partial summary judgment 49 is DENIED, and Motion of Deft for summary judgment 50 is GRANTED. A separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 2/23/2012.(ECO)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON

CIVIL ACTION NO. 2009-023 (WOB-JGW)
PARRISH LATTIMORE
VS.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

WILD FLAVORS, INC.

DEFENDANT

This matter is before the Court on the motion of
plaintiff for partial summary judgment (Doc. 49) and the
motion of defendant for summary judgment (Doc. 50).
The Court heard oral argument on these motions on
December 12, 2001, and thereafter took them under
submission.

(Doc. 74).

Having reviewed this matter further, the Court now
issues the following Memorandum Opinion and Order.
Factual and Procedural Background
Plaintiff Parrish Lattimore, an African-American male
born March 13, 1964, was hired by defendant Wild Flavors,
Inc. effective May 21, 2007, to work at the company’s
facility in Erlanger, Kentucky.

Operations Manager Pete

Kindzierski interviewed Lattimore and, in consultation with
Human Resources Senior Director Linda Haering, made the
decision to hire him.

(Hearing Aff. ¶ 3; Kindzierski Depo.

at 36).1
Wild Flavors develops and manufactures liquid
flavorings; Lattimore was hired to work as a packer on the
third shift in the Liquids Department.

Packers are

responsible for packaging, labeling and sampling products
and for general cleaning.

Plaintiff was trained on all

steps needed to perform his duties.

(Lattimore Depo. at

130).2
New employees at Wild Flavors are subject to a 90-day
probationary period.

(Lattimore Depo. at 128).

During

plaintiff’s probationary period, supervisors documented
several problems with his performance:
• June 8, 2007: Plaintiff failed to pack and label an
order accurately;
• June 14, 2007: Plaintiff did not complete proper
clean up while packing and was observed walking
around the parking lot during his shift; and
• June 23, 2007: Plaintiff left his work area to
change clothes prior to the end of his shift.
These problems were documented electronically in a shared
database file where supervisors made notes for their own
reference.

(Doc. 61-32; Begley Depo. at 82, 123, 181-82).3

These issues were brought to plaintiff’s attention.
1

Haering’s Affidavit is attached to defendant’s motion for summary
judgment. (Doc. 50). Kindzierski’s deposition is Doc. 54.
2

Plaintiff’s deposition is Doc. 61.

3

Begley’s deposition is Doc. 52.

2

(Lattimore Depo. at 232).
On July 14, 2007, plaintiff received a written
Disciplinary Warning for improperly packaging two separate
batches of flavoring as one, causing a loss of 13 machine
hours and 11.31 labor hours, at a cost of $3,850.55.

(Doc.

61-33).
Despite these problems, plaintiff completed his
probationary period and advanced from packer to Associate
Operator on August 13, 2007, with an increase in pay of
$1.25 per hour.4
On September 19, 2007, supervisor Dwight Moody spoke
to plaintiff about problems with his productivity.
61-32).

(Doc.

Moody noted that plaintiff’s packing and labeling

of an order the previous day was incomplete and that he had
left his work area a “mess.”

Moody told plaintiff that

this created additional work for other employees and was
“unacceptable.”

(Id.).

On October 7, 2007, supervisor James Begley, who was
new to the area, noted that plaintiff was making packaging
and labeling errors that created “un-needed re-handling and
re-labeling” and “a great deal of confusion.”
4

(Doc. 61-

The parties dispute whether this advancement was a performance-based
“promotion.” Plaintiff so contends, while defendant maintains that it
was simply a progression that occurred automatically once the employee
completed his probationary period. (Haering Aff. ¶ 7). The Court
finds this dispute immaterial to the outcome of the motions before it.

3

32).

Begley noted that he intended to speak to Moody about

these issues.
Around October 19, 2007, plaintiff began keeping a log
of events that he believed “showed retaliatory [sic] and
discrimination.”

(Lattimore Depo. at 143-46; Doc. 61-27).

He kept these notes in his locker.
In October or November 2007, supervisors met to
discuss employee performance reviews for that year.
(Begley Depo. at 108-09).

The supervisors held group

discussions, comparing different employees’ performance
levels and eventually determining a rating for each
employee in various categories.
Begley completed plaintiff’s review, assigning him an
overall score of 1.57 out of 4.0.
(Doc. 52-5 at 18)).

(Begley Depo. 107, Exh.7

Supervisors were required to turn in

their performance reviews to Kindzierski by the first week
of December 2007, and the reviews were then submitted to
Human Resources.
27-30).

(Begley Depo. at 114-15; Haering Depo. at

The reviews were not finalized and discussed with

employees until January or February 2008.

(Begley Depo. at

121).5
On December 17, 2007, Begley assigned plaintiff and
5

As discussed below, plaintiff received this review on or about
February 13, 2008.

4

two white employees to clean-up duty in the packing area.
(Lattimore Depo. at 193-94).

While plaintiff was sweeping

the floor with a mini-broom and dust pan, Begley walked by
and said: “What are you practicing so you can sweep at the
zoo?”

(Lattimore Depo. Exh. 30 at 1) (Doc. 61-30).

Begley, who testified that he was in a good mood because he
was about to leave on vacation and was joking with
plaintiff (Begley Depo. at 138-39, 149), then walked
through the area and returned to his office.
Plaintiff was offended by this remark and considered
it racist.

He asked one of the white employees, Greg Rabe,

what Begley meant by the comment.

Plaintiff then spoke to

supervisor Terry Jackson, who is African-American, and told
him about the comment.

Jackson asked plaintiff if he

wanted him (Jackson) to talk to Begley, but plaintiff said
he was going to ask Begley what he meant.

(Doc. 61-30 at

1).
Plaintiff then went to Begley’s office and asked him
what he meant by the comment.

(Lattimore Depo. at 212).

Begley responded that it was a joke.

Plaintiff then

returned to the packing area and told Jackson what Begley
had said.
Shortly thereafter, Begley came out of his office and
approached plaintiff.

Begley told plaintiff that he wasn’t
5

trying to be inappropriate, that his comment referred to an
old joke “about a guy who wanted to work at the zoo so he
started sweeping.”

(Lattimore Depo. at 214-15; Begley

Depo. at 154; Doc. 61-30 at 2).

Plaintiff told Begley that

he didn’t appreciate the comment, that he felt like he
needed to look for another job, and that the situation
“needed to be documented” with Kindzierski or Haering in
Human Resources.

(Doc. 61-30 at 3).

Begley told plaintiff

that was fine, that he could talk with either one about the
situation.

(Lattimore Depo. at 225).

Begley himself thereafter contacted both Kindzierski
and Haering to inform them of the incident.

(Begley Depo.

at 155).
Later in the shift, plaintiff told Begley he wanted to
let the whole thing go, (Begley Depo. at 155), but Begley
told plaintiff that he had already reported the matter.
(Lattimore Depo. at 234).
The next day, plaintiff prepared a written account of
this incident.

(Doc. 61-30).

The same day, Kindzierski

met with Begley and verbally counseled him, documenting the
discussion with a memorandum:
On December 19th James Begley was verbally counseled on
sensitivity to all operators in response to a
complaint made by an operator. James was attempting
to joke around with some operators when one of the
operators took offense to the comment made. James has
6

been spoken to by me, to ensure that he thinks before
he speaks to the operators on the floor, even if he
feels that he [is] only joking. All supervisors will
be going through sensitivity training which is being
set up by WILD’s training department to ensure all
supervisors are aware of the environment in which we
work.
(Doc. 52-5 at 33) (Begley Depo. at 163-64; Kindzierski
Depo. at 11)6.
Haering also directed Kindzierski to conduct an
investigation into the incident.

(Haering Depo. at 41-43).

Over several weeks, Kindzierski interviewed employees and
supervisors who were working at the time of the incident.
He then reported this information to Haering.
Haering and Kindzierski concluded that while
unprofessional, Begley’s comment to plaintiff had no racial
connotations.

(Haering Affidavit ¶ 10).

Hearing did not

tell plaintiff that Begley had been counseled about the
comment because she does not discuss such matters with
other employees.

(Haering Depo. at 108; Haering Aff. ¶

12).

6
Plaintiff states in his motion for partial summary judgment that Begley
“was unaware that he had been disciplined for the incident.” (Doc. 46
at 4) This mischaracterizes the testimony. Begley testified that,
while he had not previously seen this written memorandum (in fact, he
had never looked at his own personnel file), he was verbally counseled
by Kindzierski and required to attend training. (Begley Depo. at 135,
166). He testified that he did not consider those measures to
constitute “discipline.” (Id.). Haering confirmed, however, that such
counseling is considered part of the company’s overall progressive
discipline policy. (Haering Depo. at 65-66). In any event, Begley’s
opinion on this issue is immaterial as it is undisputed that the
company took the measures described.

7

In the meantime, on December 27, 2007, Wild Flavors
was notified by its Russian affiliate of a “non-conforming”
shipment.

(Doc. 53-3 at 2-3; Doc. 52-5 at 27).

The

affiliate stated that two drums of liquid flavoring were
leaking from the caps when they were received.

The drums

were shipped from the Erlanger facility in August 2007, but
the Russian affiliate did not receive them until December
due to long shipping times.

(Kindzierski Aff. ¶ 19).

Wild

Flavors directed the affiliate to destroy the products
because it would cost too much to ship them back to the
United States.

(Id.).

This caused a loss to Wild Favors

of $5,479.88.
Wild Flavors Quality Control determined that the caps
on the drums in question had not been tightened prior to
shipment, which was communicated to Kindzierski on January
2, 2008, along with photos of the leaking drums.
5 at 26).

(Doc. 52-

Kindzierski reviewed the computer records to

determine which operator packed the shipment, and he
determined that it was plaintiff.

(Kindzierski Aff. ¶ 20).

Kindzierski also learned from the affiliate that the seals
over the caps on the drums were intact, which indicated to
him that no one had touched the caps after they had been
sealed.

(Id.).

Kindzierski thus determined that plaintiff

8

was responsible for the leaks.

(Id.).7

On January 3, 2008, Kindzierski emailed supervisors
stating that he wanted to meet with plaintiff the next
morning regarding the non-conforming shipment.

(Doc. 52-5

at 25).
Kindzierski met with plaintiff on Friday, January 4,
2008.

Because he was still also investigating the December

17 incident and had not yet had an opportunity to interview
plaintiff about it,8 Kindzierski first raised that matter.
Plaintiff recounted the “zoo” remark incident in accord
with his written statement.

Based on his interviews with

the two employees who were also present at the time,
Kindzierski suggested to plaintiff that plaintiff may have
“over reacted,” but he told plaintiff that he would
continue investigating and that plaintiff would be treated
with respect and professionalism by his supervisors.

(Doc.

53-3 at 9).
Kindzierski then raised the leaking drums matter.
Plaintiff became upset when Kindzierski showed him the
records that showed he had packed the drums, and he denied
that he failed to tighten the caps.
7

(Kindzierski Aff. ¶

Also, on December 29, 2007, before the leaking barrel problem came to a
head, Begley noted in the electronic supervisor file that plaintiff had
failed to label a container he packed and “left it to sit.” (Doc. 6132 at 1).
8

Apparently plaintiff had been on vacation.

9

22; Doc. 53-3 at 9).

Plaintiff also questioned the timing

of this discussion, and Kindzierski explained that the
company had just learned about the leaking drums because of
long shipping times.

(Kindzierski Aff. ¶ 22).

then commented, “I see where this is going.”
9).

Plaintiff

(Doc. 53-3 at

Plaintiff left the office but later returned and told

Kindzierski that he wanted to speak to Haering.
Kindzierski responded that was fine but that Haering would
not be in until later.
Later in the morning, Kindzierski emailed Haering to
tell her that “Vern”9 informed him that plaintiff was trying
to get Vern “involved” because plaintiff was not satisfied
with his discussion with Kindzierski.

(Doc. 54-2 at 10).

Vern told plaintiff he needed to “see someone higher
because he has nothing to do with it.”

(Id.).

Kindzierski directed Begley to issue plaintiff a
documented verbal counseling for the leaking drums, which
Begley did the following day.
refused to sign the form.

(Doc. 53-3 at 1).

Plaintiff

(Id.).

Begley emailed Kindzierski after his meeting with
plaintiff:
I spoke with Parrish in regards to the non-conformity
and he refused to sign the verbal write-up. He said
9

Plaintiff testified that Vern Fields was an older, African-American
supervisor. (Lattimore Depo. at 540).

10

he was not going to sign it because he talked to you
about it and my name was on the paper (in the held by
section). He also stated that the item in question
was packed in [A]ugust and asked why it was not an
issue until now. I explained that it was a shipment
to Russia and by the time all the paper work had been
done and the ship time that it took to arrive we did
not receive the non-com until now. Your thoughts on
how to proceed? Mr. Lattimore is becoming an
inconvenience to me and for my shift he has been going
around talking to everyone trying to get people to
side with him and go to HR and discussing ME with
other operators. How I have been in the past and
different things like that. I am not mad about this
situation and I have maintained a professional
attitude when handling Parrish but something needs [to
be] done and as fast as possible if possible.
(Doc. 52-5 at 23-24).
Kindzierski responded:
Who has he been speaking to and is causing
distractions? Is anyone complaining about him and
what he’s saying . . . if so, I would like statement
from these people. I need as much detail as possible
for when I talk to Linda on Monday!
(Doc. 52-5 at 23).
Begley replied that Darryl King, an African-American
operator, had told him about plaintiff telling other
employees that he had been treated unfairly, asking them if
they wanted to go to Human Resources, questioning other
employees in ways that they reported made them “uneasy,”
and “killing the general morale.”

(Id.).

On January 6,

Kindzierski forwarded this email chain to Haering and Dan
Holtzleiter, Senior Director of Operations, along with the
electronic supervisors’ notes regarding plaintiff’s
11

performance.

(Id.).

On January 10, 2008, Haering met with plaintiff at his
request, along with Holtzleiter.
105).

(Haering Depo. at 46,

Plaintiff stated that he still was not satisfied

with the company’s response to the incident with Begley,
but he did not request any specific action.
at 105-06).

(Haering Depo.

Haering told plaintiff that if he wanted, he

could change teams so that Begley would no longer be his
supervisor.
13).

(Haering Depo. at 48, 61, 106; Haering Aff. ¶

Plaintiff agreed to this change and testified that he

was not upset by it.
Depo. at 254).

(Haering Depo. at 106; Lattimore

Don Cosby, who is also African-American,

thereafter became plaintiff’s primary supervisor.

(Haering

Depo. at 153).
Haering’s notes of this meeting reflect that plaintiff
also stated that he thought the write-up for the leaking
drums was retaliatory (Doc. 54-2 at 7), but the record does
not reflect whether this was actually discussed during the
meeting.
On or about January 12, 2008, plaintiff’s attorney
faxed a letter to Haering asking that a legal
representative for plaintiff be permitted to attend a
meeting scheduled for January 15.

(Doc. 53-3 at 7).

Haering testified that she forwarded this letter to the
12

company’s legal department.

(Haering Depo. at 35-38).

Plaintiff and Haering met again briefly on January 15,
2008.

(Haering Depo. at 156).

Haering summarized the

meeting in an email to Terry Jackson, an African-American
supervisor who had met with plaintiff earlier that day
regarding his shift change, with copies to Kindzierski and
Dave Haase, Vice-President of Operations:
I did meet with Parrish at 6:15 a.m. very briefly. I
asked him if there was anything in particular he
wanted to talk about, he said “no”. I asked if Pete
had informed him of moving to the “B” Team, he said
“yes”. I said that I hoped the change would provide
him an opportunity to be successful as WILD tries to
provide resources for our employees to be successful.
He stated that he “didn’t know what good it will do”.
I did not comment on this. He said that he needed to
speak to someone higher as he wants to “put to bed”
the comment that was made to him because right now he
feels it is “being swept under the carpet”. He said
that he guessed the next person to speak to would be
Kevin [Gavin, the Chief Operating Officer]. I said
that to stay in the chain of command he would want to
speak with Dave Haase (he did not know who he was or
his position). I gave him Dave’s direct phone number
and asked if he would like me to arrange a meeting.
He said “no that he had no problem calling him.” He
also asked me for a copy of his job description and
pages 39-47 of the Policy Manual as he is missing
those pages. I told him I would get these for him and
give to Pete to get to him. He said “thank-you” and
left.
(Doc. 51-4 at 20).

Plaintiff scheduled a meeting with

Haase but later cancelled it.

(Lattimore Depo. at 251;

Haering Aff. ¶ 13).
Kindzierski forwarded Haering’s email to Holtzleiter,

13

who responded:
Linda and Dave just a couple of comments.
Parrish states that he thinks we are sweeping this
under the rug. Which we all know is false. James in
the presence of Terry has apologized for the
statement. Pete has had discussions with him. Linda
and I met with him. We are switching his shift to put
him on a more comfortable shift, away from his current
shift. He spoke to Pete again, and then now again
with Linda. He wants to go higher.
I am willing to state that if he speaks to Dave that
he will not say it is done. What does he want? I feel
strongly that we have done all that we can do. If he
starts and is disruptive on his new shift what steps
can I advise Pete and the supervisors to take? At
this time everyone is very tentative to take any
action. This man is disruptive to the work force and
something must be done to end this.
(Doc. 53-3 at 23).
Haering replied that she understood the concern
regarding the disruptiveness and recommended that all
concerns be documented.

(Id.).

Also on January 15, 2008, a supervisor noted in the
computer file that plaintiff failed to take samples of a
product as he was supposed to do.

(Doc. 52-6 at 59).

On January 17, 2008, the accounting department
investigated why a batch of flavoring took thirty-nine
hours to process when the estimated processing time was ten
to twelve hours.

(Kindzierski Aff. ¶ 25).

The ensuing

investigation revealed that the plaintiff was the packer on
the product, which caused Liquids Supervisor George Svenson
14

to look into plaintiff’s productivity.

(Id.).

Svenson

determined that plaintiff had packed only six products in
three days, well below expected productivity levels.
¶ 26; Doc. 53-3 at 19).

(Id.

Other supervisors also complained

to Kindzierski about plaintiff’s productivity.
(Kindzierski Aff. ¶ 26).
On January 19, 2008, Begley emailed Kindzierski to
tell him that employees were telling him that plaintiff
“keeps a notebook with him on the production floor, he
enters what jobs hes [sic] been assigned and asses[es] what
everyone else is doing and writes that down as well along
with conversations and things he has heard in passing.”
(Doc. 53-3 at 18).

Begley also stated that another

employee told him that plaintiff, after complaining about
an assignment he thought was unfair, stated that he was
going to “take [Begley] down.”

(Id.).

Kindzierski forwarded Begley’s email to Haering and
Holtzleiter, stating:
This guy is becoming very disruptive on the floor with
the other operators and my supervisors feel very
uncomfortable dealing with him. He starts on the B
team Monday night, what can I do if this continues?
(Id.) (emphasis added).
Holtzleiter responded:
We offered this gentleman the opportunity to speak
with Dave and he has not done this up [to] this point.
15

Now reading this, this gentleman sounds to be very
disruptive on the floor. If he is walking around with
a notebook, how can he be doing his job? This is a
bad situation, and only getting worse that we must
take action on.
I think by the facts that we made a poor decision in
this hire. When we meet on Monday, I would like to
discuss what steps we can take to rectify this poor
decision hire and move on.
My point here is:
1) James made a dumb statement, but it was not racial.
2) In the presence of Terry Jackson and Daryl King he
apologized to this individual, and that [was what] he
(Parrish Lattimore) requested.
3) We are moving his shift from the “A” team to the
“B” team.
4) Pete has discussed this issue with him.
5) Linda and I have discussed this issue with him.
But yet he refuses to let this go, and now after
reading this he is not performing, and frankly if I
was supervising him, I would probably be very cautious
as to saying anything to him either. But now we have
come to [the] point that [t]his man is not performing,
he is not doing his job, and enough is enough. Based
on the actions and lack of performance of this
individual, the facts [sic] that we have done all that
we were instructed to do, he continues to draw this
out, and frankly this needs to come to conclusion. My
stance at this time is this: We made a poor decision
with this hire and we must correct this before we
continue to let this get out of hand and disruptive
affecting the other employees that we have.
(Doc. 53-3 at 17-18) (emphasis added).
Haase replied that he would like to suspend plaintiff
with pay to investigate the situation and get a legal
opinion.

(Doc. 53-3 at 17).

Finally, Kindzierski noted

that he was “working” on the situation and that George
Svenson had just discovered that plaintiff had been
16

assigned an order and that “nothing was done on it” and “in
fact there is a full day of Parrish not doing anything.”
(Id.).
On February 13, 2008, Kindzierski and Haering met with
plaintiff to present his 2007 performance review.

They

conducted the review instead of Begley, given the incident
of December 17.

(Kindzierski Aff. ¶ 28).

Kindzierski told

plaintiff that “he needed to focus more on his job tasks
and to pay more attention to details.”

(Id.).

On March 29, 2008, plaintiff approached Cosby, his new
supervisor, and told him he needed to talk to him.
Plaintiff then began discussing the incident with Begley,
and Cosby cut him off, as described in an email he sent to
Kindzierski:
I stopped him and said, “Parrish, I am going to assure
you that I am not going to judge you by your past. As
far as I am concerned you have a clean slate. I do
not know anything about that situation or your past
history here at WILD nor do I want to know. All I
know is that you are here now and we are going to work
together along w/ every other team member here and
together we will all be successful.” I shook his hand
and said, “I think that’s fair and lets [sic] move on
from here.” He seemed very receptive. . . . I am
going to assume that Parrish is a good employee until
he shows me different. This is his chance to turn
over a new leaf.
(Doc. 51-4 at 26).
On March 31, 2008, Cosby emailed Kindzierski:
I had a talk with Parrish tonight about his time
17

management. Parrish has not been working so I am
presenting this observation to him and I will proceed
further if this behavior continues.
(Doc. 51-4 at 25; Kindzierski Aff. ¶ 29).
responded:

Kindzierski

“What do you mean he has not been working???”

(Id.).
The following morning, Svenson emailed Cosby and other
supervisors, copying Kindzierski, about a problem the night
before where plaintiff failed to properly label two
products, which necessitated repacking, relabeling, and
extra work for the shift.

(Doc. 51-4 at 13-14; Kindzierski

Aff. ¶ 30).10
After speaking with Haering, Kindzierski emailed
Cosby, directing him to issue plaintiff a write up:
After speaking with Linda, Parish [sic] needs a write
up for this lack of productivity for the day you spoke
about and now this issue. They should both be
contained in one write up. We are under the
microscope now pertaining to productivity and the last
thing we need now in an employee who doesn’t want to
work. Our EBIT margin is extremely under budget and
the reason we cannot replace any personnel that we are
missing right now is because some of the existing
personnel (not all), such as Parrish refuse to give us
an honest days [sic] work.
(Doc. 51-4 at 13) (emphasis added).

Haering confirmed that

the write up should be a second written warning.

(Id.).

Kindzierski told Cosby “not to mention the past but to

10

This latter problem was also noted by Svenson in the supervisors’
computer file. (Doc. 52-6 at 59).

18

focus on the present issue.”

(Doc. 53-3 at 20).

On April 3, 2008, Cosby spoke to plaintiff regarding
the packaging errors.

In an email to Kindzierski

describing this meeting, Cosby stated that plaintiff blamed
another employee, but Cosby told plaintiff that he was
responsible and was going to receive a written warning.
(Doc. 53-3 at 20).

Plaintiff told Cosby all his

disciplinary write-ups were part of a “plot” against him
that would “be addressed very soon.”

(Id.)

Cosby also

noted that plaintiff was “doing everything that you said he
has done before” by bothering other employees on the
production floor.

(Id.).

Cosby gave plaintiff the written warning the same day.
(Doc. 53-3 at 5).

Cosby explained the facts that confirmed

that the errors were plaintiff’s fault and told him he was
“the last line of defense when he is packing.”
at 31).

(Doc. 52-5

Plaintiff initially refused to sign the write-up

but later in the shift returned, admitted fault, and signed
the warning.

(Doc. 52-5 at 32).

Following the April 3, 2008, write-up, Kindzierski and
Haering discussed how to proceed with plaintiff’s
employment.

Based on plaintiff’s performance issues,

disciplinary action, and performance review, they
recommended that his employment be terminated, and that
19

recommendation was approved by the Chief Operating Officer,
Kevin Gavin.

(Haering Depo. at 58-59, 73-74, 139-40;

Haering Aff. ¶ 18; Kindzierski Depo. at 8-9; Kindzierski
Aff. ¶ 31).

Plaintiff’s employment was terminated April 4,

2008.
Plaintiff filed this lawsuit on February 19, 2009,
alleging claims for race discrimination pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. and 42 U.S.C. § 1981; retaliation under
Title VII; and age discrimination under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621
et seq.

(Doc. 1).
Analysis

A.

Race Discrimination

Title VII of the Civil Rights Act of 1964 prohibits
employers from discriminating against individuals with
respect to the terms, conditions, or privileges of
employment because of race.

42 U.S.C. § 2000e-2(a)(1).

Section 1981, also invoked by plaintiff, prohibits race
discrimination in the making and enforcement of contracts
and has been applied to at-will employment relationships.
See Aldridge v. City of Memphis, 404 F. App’x 29, 37 n.9
(6th Cir. 2010) (citation omitted).

Claims under § 1981

are reviewed under the same standards as Title VII claims.
20

Bobo v. United Parcel Serv., Inc., __ F.3d __, No. 09-6348,
2012 WL 34264, at * 13 (6th Cir. Jan. 9, 2012); Idemudia v.
J.P. Morgan Chase, 434 F. App’x 495, 499 (6th Cir. 2011)
(citation omitted).
1.

Direct Evidence

A plaintiff may establish discrimination by either
direct or circumstantial evidence.

Cecil v. Louisville

Water Co., 301 F. App’x 490, 496 (6th Cir. 2008) (citation
omitted).

“Direct evidence is ‘evidence that proves the

existence of a fact without requiring any inferences.’”
Id. (quoting Grizzell v. City of Columbus Div. of Police,
461 F.3d 711, 719 (6th Cir. 2006)).
Although plaintiff explained why he felt the “zoo”
comment was racial in nature – because of historically
derogatory comparisons between blacks and animals such as
monkeys, which live in zoos – such an interpretation is not
apparent on the face of the remark, “What are you
practicing sweeping so you can work at the zoo?”

Rather,

the conclusion that the remark was racially-motivated
requires one to draw an inference that Begley had
plaintiff’s race in mind when he made the comment, and thus
by definition the remark is not direct evidence of racial
discrimination.

See, e.g., Idemudia, 434 F. App’x at 500;

Cecil, 301 F. App’x at 496.
21

2.

Circumstantial Evidence

In the absence of direct evidence, the Court analyzes
discrimination claims under the burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) and modified in Texas Dep’t of Comty. Affairs v.
Burdine, 450 U.S. 248 (1981).
The plaintiff first must establish a prima facie case
of discrimination, after which the burden shifts to the
defendant to articulate some legitimate, nondiscriminatory
reason for the alleged discriminatory action.
U.S. at 252-53.

Burdine, 450

This is merely a production burden, not a

persuasion burden.

St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 507 (1993).
If the employer proffers such a justification, the
plaintiff then must prove by a preponderance of the
evidence that the reason offered by the employer is a
pretext for intentional discrimination.
at 253.

Burdine, 450 U.S.

The ultimate burden of proving the employer’s

intent to discriminate remains at all times with the
plaintiff.

St. Mary’s Honor Ctr., 509 U.S. at 511.
a.

Prima Facie Case

To make a prima face showing of discrimination, the
plaintiff must establish that he or she (1) was a member of
the protected class; (2) suffered an adverse employment
22

action; (3) was qualified for the position; and (4) was
replaced by someone outside the protected class or was
treated differently than similarly-situated, non-protected
employees.

Colvin v. Veteran’s Admin. Med. Ctr., 390 F.

App’x 454, 457 (6th Cir. 2010) (citation omitted).
The first two elements of the prima facie case are not
disputed here: plaintiff is African-American and his
employment was terminated.

Further, while defendant argues

that plaintiff was not “qualified” due to the performance
problems for which he was fired, it is well established
that a court “may not consider the employer’s alleged
nondiscriminatory reason for taking an adverse employment
action when analyzing the prima facie case.” Idemudia, 434
F. App’x at 501 (quoting Wexler v. White’s Fine Furniture,
Inc., 317 F.3d 564, 574 (6th Cir. 2003) (en banc)).
1.

“Replacement”

This brings the Court to the fourth prong.

Defendant

asserts through the affidavits of Haering and Kindzierski
that Wild Flavors interviewed Luther Hall, who is AfricanAmerican, on April 30, 2008, as a replacement for plaintiff
as a packer on third shift, and that Hall was hired
effective June 9, 2008.
Aff. ¶ 34)

(Haering Aff. ¶ 22; Kindzierski

Thus, defendants have shown that plaintiff was

replaced by another African-American individual.
23

Plaintiff asserts that defendant “brings forward
nothing more than the bare conclusive [sic] affidavits of
Wild’s management to support their position” as to who
replaced plaintiff.

(Doc. 66 at 40).

However, where the

non-moving party has not impeached the credibility of an
affiant -- even a self-interested one -- on the subject at
issue, the moving party can rely on such affidavits to
demonstrate an absence of a genuine issue of material fact.
See Stratienko v. Cordis Corp., 429 F.3d 592, 597-98 (6th
Cir. 2005).
Plaintiff then asserts that it is more likely that he
was actually replaced by one of five white employees who
were hired on May 19, 2008.

(Doc. 66 at 41).11

The record

does not support this assertion.
No replacement occurs as a matter of law unless
another employee is hired or reassigned to perform the
plaintiff’s duties.

See Schoonmaker v. Spartan Graphics

Leasing, LLC, 595 F.3d 261, 265 (6th Cir. 2010).

Two of

the five white employees plaintiff cites – Craig Claxton
and Anthony Stenger – were hired to work second shift
(Doc. 65-4 at 28-29), while plaintiff worked third shift.
These two individuals thus could not, as a matter of law,

11

Plaintiff states the date of hire of these employees as May 29, but
the relevant documents show their effective hire dates as May 19, 2008.
(Doc. 65-4 at 25-29).

24

have been hired to perform plaintiff’s job duties.
The three other individuals – Albert Lynn, Aaron
Whitley, and Michael Weigel – were hired to work third
shift, but they were hired into different areas: Lynn to
the Glass Reactor area, Whitley to Sanitation, and Weigel
to Dry Blends.

(Doc. 65-4 at 25-27).

It is undisputed

that plaintiff at all times worked in the Liquids
Department.

These three employees thus also could not have

“replaced” plaintiff.
As a matter of law, therefore, plaintiff has not shown
that he was replaced by a person outside of the protected
class.
2.

“Similarly Situated”

Plaintiff argues in the alternative that he can
satisfy the fourth prong of the prima facie case because he
was treated less favorably than white employees “with the
same responsibilities.”

(Doc. 66 at 41).

The Sixth Circuit has held that to be similarly
situated in the disciplinary context, the plaintiff and his
proposed comparator must have engaged in acts of
“comparable seriousness.”

Wright v. Murray Guard, Inc.,

455 F.3d 702, 710 (6th Cir. 2006) (citation omitted).
Court explained:
To make this assessment, we may look to certain
25

The

factors, such as whether the individuals have dealt
with the same supervisor, have been subject to the
same standards and have engaged in the same conduct
without such differentiating or mitigating
circumstances that would distinguish their conduct or
the employer’s treatment of them for it. . . .
However, when such factors are not relevant, we need
not consider them. . . . Rather, to determine whether
two individuals are similarly situated with regard to
discipline, we make an independent determination as to
the relevancy of a particular aspect of the
plaintiff’s employment status and that of the
[proposed comparable] employee.
Id. (emphasis added) (citations and internal quotations
omitted).
Plaintiff identifies ten white employees who he
contends are “similarly situated.”

(Doc. 46 at 11-17).12

For each, plaintiff asserts that the individual’s
disciplinary history makes him comparable to plaintiff.
There are several problems with plaintiff’s arguments.
First, “[s]uperficial similarities between a
disciplined employee and his colleagues are not sufficient
to show a prima facie case of discrimination.”

Arendale v.

City of Memphis, 519 F.3d 587, 604 (6th Cir. 2008).
Plaintiff’s reliance on the mere number of write-ups in
each individual’s file – without regard to other factors -runs afoul of this principle.

12

At oral argument, plaintiff retracted his assertion that one of the
employees listed in his brief, Matt Crawford, was comparable.

26

Defendant has introduced evidence13, undisputed by
plaintiff, that some of these other employees had been
employed by Wild Flavors for years, and that others went
significant periods of time without errors or problems.
The fact that such individuals had the same or similar
number of write-ups as plaintiff is thus not probative of
dissimilar treatment, because it is undisputed that
plaintiff made errors early in his tenure and then incurred
other write-ups in a relatively short period of time.

See

Trout v. FirstEnergy Generation Corp., 339 F. App’x 560,
564-65 (6th Cir. 2009) (holding that plaintiff could not
establish prima facie case because alleged comparators, who
had similar instances of tardiness, had longer tenure at
company, were not tardy early in their employment, or did
not commit infractions within the short period that
plaintiff did).
Plaintiff also groups all disciplinary actions
together without regard to the nature of the underlying
conduct.

For example, while plaintiff’s write-ups related

generally to production errors, he relies on discipline
issued to other employees for problems such as attendance
and failing to report accidents.

13

This paints with too

Record citations to the evidence of these employees’ disciplinary
histories are found in defendant’s response in opposition to
plaintiff’s motion for summary judgment. (Doc. 67 at 7-20).

27

broad a brush.
The Sixth Circuit has held that, at the prima facie
stage, employees who engage in conduct of a qualitatively
different nature or under materially different
circumstances are not “similarly situated” as a matter of
law.

See Highfill v. City of Memphis, 425 F. App’x 470,

474 (6th Cir. 2011) (rejecting at the prima face stage
proposed comparators whose disciplinary infractions were
different than those for which plaintiff was fired;
“unrelated information about other types of infractions by
fellow employees is not relevant for purposes of
comparison”); Colvin v. Veteran’s Admin. Med. Ctr., 390 F.
App’x 454, 458-60 (6th Cir. 2010) (holding alleged
comparator not similarly situated to plaintiff even though
they held same position as pharmacists, were hired same
date, had same supervisor, and both had problems filling
prescriptions; plaintiff’s errors were qualitatively
different with potentially more serious consequences);
Wright, 455 F.3d at 709 (holding that plaintiff could not
establish prima facie case of sex discrimination where he
and alleged comparator’s acts of misconduct were of
different nature and employer could legitimately view them
differently); Noble v. Brinker Int’l, Inc., 391 F.3d 715,
728-31 (6th Cir. 2004) (reversing denial of employer’s
28

motion for judgment as a matter of law after trial because
plaintiff failed to establish prima facie case; alleged
comparator’s misconduct occurred under “significantly
differing circumstances”); Clayton v. Meijer, Inc., 281
F.3d 605, 610-12 (6th Cir. 2002) (plaintiff could not
establish prima facie case of race discrimination, even
though three white employees holding same position
committed same error, because plaintiff caused serious harm
to co-worker and others did not).
Thus, plaintiff cannot rely on dissimilar conduct by
other employees to satisfy the “similarly situated” prong.
The Court need not parse every detail as to each of
these alleged comparators because plaintiff does not
dispute the facts that distinguish them, as set forth above
and in defendant’s evidence.

Rather, plaintiff disagrees

with the significance that defendant attaches to these
distinguishing factors, arguing that the Court should
disregard those differences.

This argument will be

discussed in greater detail below on the question of
pretext.
Although the Court believes plaintiff’s race
discrimination claim likely falters at this stage, because
the prima facie burden is not meant to be an onerous one,
the Court will proceed in the analysis as if a prima facie
29

case of race discrimination has been established.
b.

Pretext

Once the plaintiff makes out a prima facie case, he
then must adduce evidence from which a reasonable finder of
fact could infer that Wild Flavor’s reasons for terminating
plaintiff’s employment are a pretext for intentional race
discrimination.

Reeves v. Sanderson Plumbing Prods., Inc.

530 U.S. 133, 148 (2000).
Defendant’s stated reason for terminating plaintiff’s
employment is his record of performance problems and his
disruptiveness on the production floor.
73).

(Haering Depo.

This is obviously a legitimate, nondiscriminatory

justification.
Plaintiff must therefore show that this stated reason
had no basis in fact, did not actually motivate defendant’s
decision, or was insufficient to motivate the decision.
See Idemudia, 434 F. App’x at 503 (citation omitted).
Plaintiff may also show that Wild Flavor’s decision to
terminate his employment was so unreasonable as to give
rise to an inference of pretext.

Id.

However, “mere

disbelief of an employer’s proffered reason is insufficient
to support a finding of intentional discrimination.”
Noble, 391 F.3d at 722 (citations omitted).
Plaintiff appears to proceed under the first of these
30

options, at least with respect to his discipline for the
leaking barrels sent to Russia.

In a section titled,

“Regarding Supposed Poor Performance,” plaintiff posits:
“Many things could have happened to [the barrels] which
might have caused the leak, if it existed at all, within
the four months of transit, other than operator error by
Mr. Lattimore.”

(Doc. 66 at 54).

This is no doubt true;

it is also rank speculation.14
Under this Circuit’s modified “honest belief”
doctrine, as long as the employer demonstrates that it
reasonably relied “on the particularized facts that were
before it at the time the decision was made,” the employee
cannot prove pretext, even if the facts turned out to be
incorrect.

Wright, 455 F.3d at 708 (citation omitted).

Thus, an employer only has to present evidence that it
“made a reasonably informed and considered decision before
taking an adverse employment action.”

Id.

Plaintiff does not dispute that he packed the barrels
in question or that Wild Flavors’s computer records
reviewed by Kindzierski showed as much.

14

(Lattimore Depo.

Plaintiff’s speculation does not end there. He further suggests:
“Temperature differences between the summer in Kentucky and the
temperature in Moscow in December 2007, could have accounted for the
leaks.” (Doc. 72 at 7 n.21). And, strangely, “Could one speculate
that if the Russian shipment was replaced, the ‘leaky’ barrels were
sold on the Russian Black Market?” (Doc. 66 at 47 n.141).

31

at 346)15

Kindzierski’s determination that plaintiff was

responsible for the non-conforming shipment was thus based
on specific facts before him: written reports from the
Russian affiliate, photographs of the leaking barrels,
reports from Quality Control that the caps had not been
tightened, and computer records documenting that plaintiff
had packed the shipment.

Although plaintiff denies that he

failed to tighten the caps on the barrels, he has adduced
no evidence from which a reasonable jury could conclude
that Kindzierski’s belief to the contrary was not honestly
held or that it was so unreasonable as to be pretextual.
As to other incidents for which plaintiff was
disciplined, he either admits the underlying conduct or
does not remember the incidents.
312, 315-19, 353).

(Lattimore Depo. at 310,

Further, he admitted fault as to the

April 3, 2008, packaging errors which seem to have been the
proverbial straw that broke the camel’s back and caused
Kindzierski and Haering to move to terminate his
employment.

(Doc. 52-5 at 32).

Plaintiff argues that these other incidents were
“minor,” that they seem “of little import,” and that
defendant’s managers were “nit picking and carping.”
15

(Doc.

Plaintiff’s statement that “The reports of leaky bungs in the Russian
shipment was decidedly unauthenticated hearsay, and the conclusion that
Lattimore did it, was conjecture” (Doc. 66 at 11) is thus highly
misleading.

32

66 at 55; Doc. 72 at 7).

However, plaintiff’s opinion that

the incidents did not warrant the discipline that defendant
imposed for them does not raise a triable issue as to
pretext.

See Arendale v. City of Memphis, 519 F.3d 587,

605 (6th Cir. 2008) (“Conclusory assertions, supported only
by Plaintiff’s own opinions, cannot withstand a motion for
summary judgment.”).

See also Rutherford v. Britthaven

Inc., No. 10-5783, 2011 WL 6415109, at *6 (6th Cir. Dec.
21, 2011) (noting that the employer’s “business judgment
regarding the appropriate response to this [rule] violation
is not subject to judicial second-guessing”) (citation
omitted); Noble, 391 F.3d at 724 (“Although [plaintiff] is
certainly entitled to his opinion, mere speculation cannot
satisfy his burden of proving that [his supervisor]
discharged him on account of race.”).
Plaintiff also argues that he has shown pretext by way
of the evidence, discussed above, of differential treatment
of allegedly similarly-situated employees.
52).

(Doc. 66 at

This argument falls within the third method of

showing pretext.

See Rutherford, 2011 WL 6415109, at *4.

As discussed, defendant has put forward undisputed
evidence demonstrating that these employees are
distinguishable from plaintiff in relevant respects.
Differences in tenure, the types and frequency of their
33

performance problems or misconduct, and other factors
render the allegedly different treatment devoid of legal
significance.

The Sixth Circuit has held that such

evidence does not raise a triable issue of pretext.

See

id. at *4-*5 (holding that evidence of misconduct of
younger employees did not raise triable issue of pretext on
age discrimination claim because the conduct was
“materially different” than that of plaintiff); Ladd v.
Grand Trunk Western R.R., Inc., 552 F.3d 495, 502-03 (6th
Cir. 2009) (plaintiff raised no triable issue of pretext
where alleged comparator violated different rules than
those violated by plaintiff).
As the Court explained in Ladd, “we look to similarly
situated employees not to evaluate the employer’s business
judgment, but to inquire into the employer’s ‘motivation
and intent’ to determine whether the employer was
‘motivated by [discrimination].’”
(citation omitted).

Ladd, 552 F.3d at 503

Further, “it is within the employer’s

business judgment to treat differently-situated parties
differently.”

Id.

“Without similarly situated parties, we

cannot adjudge the intent of the employer as to
[discrimination].”

Id.

Thus, because there are differentiating or mitigating
circumstances that distinguish the records of the alleged
34

comparators from plaintiff, no inference of impermissible
discrimination may reasonably be drawn from this evidence.
Other evidence cited by plaintiff does not support a
finding of pretext.

Plaintiff places great weight on

Holtzleiter’s statement in January 2008, that plaintiff’s
hire was a “poor decision.”

(Doc. 72 at 3-4).

Although

plaintiff goes so far as to characterize this as “direct”
evidence of racial discrimination, there is nothing racial
on the face of remark.

It is undisputed that this

statement was made in response to reports of plaintiff not
working and of disrupting operations by walking around the
production floor with a notebook making notes of what
people did and said.

And, of course, there is no evidence

that Holtzleiter was involved in the decision, made three
months later, to terminate plaintiff’s employment.
The “statistical” data plaintiff cites is also of no
assistance in showing pretext or discrimination.

Plaintiff

simply attaches Wild Flavor’s EEO-1 reports and lists of
employees notated as to race.

Such raw data – without

contextual information such as the number of employees
hired or fired within a certain period, information
concerning the relevant labor pool, and evidence that
eliminates possible non-discriminatory reasons for any
disparities – is insufficient to show a pretext for
35

discrimination.

See Ballor v. Alcone County Road Comm’n,

No. 97-1413, 1998 WL 279374, at *3-*4 (6th Cir. May 20,
1998) (citing Barnes v. GenCorp, 896 F.2d 1457, 1466 (6th
Cir. 1990)).
Finally, plaintiff’s conspiratorial accusations
regarding the “G drive” computer notes that supervisors
kept regarding plaintiff’s performance problems raise no
triable issue.

It is not disputed that supervisors made

these notes contemporaneously with the events described
therein in a shared folder for the supervisors’ reference.
In his brief, plaintiff characterizes these notes as
“secret,” yet plaintiff concedes that the incidents
documented in the file were discussed with him at the time
they occurred.

(Lattimore Depo. at 232).

Plaintiff has

produced no evidence to show that he was singled out from
other employees with respect to such notes.16
The Court thus concludes that plaintiff has not
presented circumstantial evidence of pretext that, when
considered with evidence supporting the prima facie case,
would permit a reasonable trier of fact to infer that Wild
Flavors intentionally discriminated against plaintiff on

16

Plaintiff states not only that these notes were “compiled in secret,”
but he also alleges that such notes were put “exclusively” in
plaintiff’s file. (Doc. 66 at 45). The Court has reviewed plaintiff’s
record cite for the latter proposition and finds that it does not
pertain to this issue at all.

36

the basis of race.
B.

Age Discrimination

The ADEA prohibits an employer from discharging an
employee “because of such individual's age.”
623(a)(1).

29 U.S.C. §

Absent direct evidence, the same burden-

shifting framework discussed above applies to plaintiff’s
claim for age discrimination.

Geiger v. Tower Auto., 579

F.3d 614, 622 (6th Cir.2009).
Plaintiff has established a prima facie case of age
description because, in addition to satisfying the first
three prongs discussed above, the evidence shows that
plaintiff was replaced by Luther Hall, then twenty-seven
years old.
This avails plaintiff little, however, because the
evidence, even viewed in his favor, does not demonstrate a
triable issue as to whether plaintiff’s age was a “but for”
factor in the termination of his employment.

See id. at

620 (citation omitted).
As noted, defendant has set forth its legitimate, nondiscriminatory reasons for firing plaintiff: his
performance problems and disruptiveness.

As evidence of

pretext, plaintiff relies on the same evidence cited in
support of his race discrimination claim.
58).
37

(Doc. 66 at 57-

The Court finds nothing in this evidence to suggest
that plaintiff’s age played any role in his discipline or
termination.

The alleged younger comparators are not

similarly situated to plaintiff as a matter of law for the
reasons already discussed.

Plaintiff cites no other

evidence in support of this claim.
Further, plaintiff was over forty when Kindzierski and
Haering hired him, and they are the same individuals who
recommended his termination less than a year later.

While

not dispositive, this “same actor” inference “viewed with
the entire record can support a motion for summary
judgment.”

Daily v. Am. Founders Bank, Inc., 667 F.

Supp.2d 728, 736 (E.D. Ky. 2009) (citing Wexler v. White’s
Fine Furniture, Inc., 317 F.3d 564, 591 (6th Cir. 2003) (en
banc)).

Common sense suggests that, having hired plaintiff

at age forty-three, Kindzierski and Haering would not be
motivated by age bias less than a year later when they
fired him, particularly where there is no evidence of any
age-related issues or comments during that time.
Therefore, plaintiff has pointed to no evidence from
which a reasonable jury could infer that the reasons given
for his termination were a cover-up for intentional age
discrimination.

38

C.

Retaliation

Plaintiff’s final claim is for retaliation under Title
VII.

That is, he alleges he was terminated in response to

his complaint about Begley’s “zoo” remark.
To establish a prima facie case of retaliation,
plaintiff must establish that: (1) he engaged in activity
protected by Title VII; (2) the exercise of his civil
rights was known to the defendant; (3) thereafter, the
defendant took an employment action adverse to the
plaintiff; and (4) there was a causal connection between
the protected activity and the adverse employment action.
Arendale v. City of Memphis, 519 F.3d 587, 606 (6th Cir.
2008) (citation omitted).
“While temporal proximity between an assertion of
Title VII rights and an adverse employment action provides
highly probative evidence of a causal connection, ‘temporal
proximity alone will not support an inference of
retaliatory discrimination when there is no other
compelling evidence.’”

Id.

If the plaintiff establishes a prima facie case of
retaliation, the burden of production then shifts to the
defendant to proffer a non-discriminatory reason for the
adverse employment action.

Ladd v. Grand Trunk Western

R.R., Inc., 552 F.3d 495, 502 (6th Cir. 2009) (citation
39

omitted).

Once the defendant does so, “the burden of

production shifts back to the plaintiff to demonstrate that
the proffered reason was mere pretext.”

Id.

The burden of

persuasion, however, remains at all times with the
plaintiff.

Id.

Plaintiff’s complaint regarding Begley’s “zoo” remark
constitutes protected activity because he perceived the
remark as racially discriminatory, and Wild Flavors
management was aware of his complaint.

Plaintiff also

suffered the adverse employment action of being fired.

The

question then is whether that adverse action was causally
related to his protected activity.
First, temporal proximity.

The Court will assume that

temporal proximity supports plaintiff’s claim because, even
though approximately four months passed between the time
plaintiff complained and his termination, he argues that
the discipline imposed for the leaking barrels in January –
just a month after his complaint – was retaliatory, and
that discipline was part of the pattern of performance
problems on which defendant relied in firing plaintiff.
However, it is also undisputed that plaintiff’s
performance problems began early in his tenure at Wild
Flavors before Begley made the “zoo” remark.

Although

plaintiff downplays the significance of those early
40

problems, it is nonetheless undisputed that the incidents
occurred, that defendant documented them and brought them
to plaintiff’s attention, and that they marked the
beginning of a pattern of problems that began prior to
plaintiff engaging in any protected activity and continued
thereafter.
Those problems were also reflected in plaintiff’s 2007
performance review.

While plaintiff labels that review a

“hoax” (Doc. 66 at 60), the record is undisputed that
Begley prepared the review in October or November 2007,
before the December 17, 2007 encounter about which
plaintiff complained.

(Begley Depo. at 108-09).17

“Evidence of an employer’s concerns about an
employee’s performance before the employee’s protected
activity undercuts a finding of causation.”

Carrington v.

City of Des Moines, Iowa, 481 F.3d 1046, 1051 (8th Cir.
2007) (citation omitted).

See also Slattery v. Swiss

Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001)
(holding that an inference of retaliation did not arise
when gradual adverse job actions based on plaintiff’s
performance problems began before plaintiff filed EEOC
charge, even though he was terminated thereafter); Spencer

17

In fact, Haering testified, and it is not disputed, that supervisors
were required to submit their reviews to Kindzierski by the first week
of December. (Haering Depo. at 27-30).

41

v. CSL Plasma, Inc., Civil Action No. 3:10-CV-00262 H, 2011
WL 4054715, at *6 (W.D. Ky. Sept. 12, 2011) (rejecting
plaintiff’s assertion that he was under “increased
scrutiny” after engaging in protected activity; plaintiff
had prior performance problems which were reflected in poor
annual evaluation and concerns expressed by management).
Assuming without deciding, however, that plaintiff has
made out a prima facie case of retaliation, the claim fails
at the pretext stage for the reasons discussed at length
above and for those that follow.
When plaintiff complained about Begley’s “zoo” remark,
Kindzierski immediately counseled Begley and ordered that
he and other supervisors undergo sensitivity training.
While plaintiff complains that he was not informed of this
action, that suggests no retaliatory motive on the
employer’s part, as the testimony was undisputed that
defendant does not discuss such personnel issues as a
matter of company policy.18
Kindzierski also met with plaintiff to discuss his
concerns.19

Plaintiff expresses indignation that

18

In retrospect, communicating this fact to plaintiff may have diffused
the situation, but that is of no legal significance.

19

In his briefs and in depositions, plaintiff criticized the length of
time that passed before Kindzierski and others in management met with
him. However, it is undisputed that these events unfolded during the
holidays when plaintiff and others were on vacation at various times.

42

Kindzierski suggested that plaintiff may have overreacted –
based on information given to him by employees he
interviewed during the investigation – but again this does
not evidence a retaliatory motive.

Thereafter, plaintiff

asked to meet with Haering, and she complied.

In an effort

to allay plaintiff’s concerns about Begley, Haering offered
plaintiff the option of changing teams to remove him from
Begley’s direct supervision.

Plaintiff agreed.

While his

briefs in this case criticize that action, plaintiff
testified that the move did not upset him.
When plaintiff then asked to speak to someone higher
in the company, Haering suggested he speak to Haase, the
Vice President of Operations, and she volunteered to set up
a meeting.

Plaintiff declined, so Haering gave him Haase’s

telephone number.

Plaintiff scheduled a meeting with Haase

but then cancelled it.

There is no evidence that he made

any further effort to pursue the matter.
The Court notes that at no point during these
discussions did plaintiff, although he expressed general
dissatisfaction with the situation, request that the
company take any particular action, nor did he suggest any
way that his dissatisfaction could be remedied.20

20

Indeed, in his deposition, plaintiff testified that he did not think
Begley should have been fired. (Lattimore Depo. at 254).

43

Instead, the record reflects that plaintiff – who by
his own admission had been keeping a notebook of things
that occurred at work which he felt were unfair since
October 2007 – increased his note-taking activity,
questioning other employees and causing some to remark to
supervisors that plaintiff was causing a “commotion.”
(Lattimore Depo. 172-74, 178, 180-83, 289-90, 295-96).
Indeed, in his deposition, plaintiff testified that he
conducted “character” investigations of managers by asking
other employees questions about such issues as whether the
managers were having extramarital affairs.

(Id.).

Given these undisputed facts, the Court does not
accept plaintiff’s argument that the ensuing emails
expressing consternation about plaintiff not working, about
him disrupting the production floor by carrying around a
notebook and questioning co-workers, and being a “poor
hire” show a retaliatory motive.

Plaintiff concedes that

he engaged in the conduct which defendant characterized as
“disruptive” and he offers no evidence to rebut the
evidence proffered by defendant that plaintiff’s
productivity was low.
As courts have held, “engaging in protected activity
does not ‘insulate an employee from discipline for
violating the employer’s rules or disrupting the
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workplace.’”

Chivers v. Wal-Mart Stores, Inc., 641 F.3d

927, 933 (8th Cir. 2011) (citation omitted).

See also

Littleton v. Pilot Travel Ctr., LLC, 568 F.3d 641, 645 (8th
Cir. 2009) (same).

Were it otherwise, having engaged in

protected activity would render an employee forever
untouchable and prohibit an employer from taking reasonable
measures to address performance or disciplinary problems.
The Court does not believe that to be the intent of Title
VII.
In any event, the emails cited by plaintiff were
exchanged in January 2008, and plaintiff was not terminated
until April.

In the interim, he changed teams and began

reporting to a new supervisor, Don Cosby.21

In response to

plaintiff’s attempt to tell Cosby about the incident with
Begley, Cosby told plaintiff that he did not want to know
about it, that as far as he was concerned plaintiff had a
“clean slate” with him, and he encouraged plaintiff to work
to “be successful.”

(Doc. 51-4 at 26).

Plaintiff has not

disputed this evidence.
Shortly thereafter, however, Cosby reported to
Kindzierski that plaintiff was not working, and plaintiff
made more packaging errors.

It was after these incidents

that Kindzierski and Haering decided that plaintiff’s
21

As noted, Cosby is African-American.

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employment should be terminated.
This chronology does not support a reasonable
inference that defendant fired plaintiff in retaliation for
his complaint about Begley’s “zoo” remark, and plaintiff’s
opinion to the contrary, even though genuinely held, cannot
raise a triable issue under the above authority.
Conclusion
“The ultimate question in every employment
discrimination case involving a claim of disparate
treatment is whether the plaintiff was the victim of
intentional discrimination.”

Reeves v. Sanderson Plumbing

Prods., Inc. 530 U.S. 133, 153 (2000).

The Court has

reviewed this record and concludes that, although
plaintiff’s employment was terminated -- unfairly so, in
his view -- the evidence does not support a finding that
defendant took that action on the basis of plaintiff’s
race, age, or protected activity.

Summary judgment in

defendant’s favor is thus appropriate.

Therefore, having reviewed this matter, and the Court
being sufficiently advised,
IT IS ORDERED that motion of plaintiff for partial
summary judgment (Doc. 49) be, and is hereby, DENIED, and
the motion of defendant for summary judgment (Doc. 50) be,
46

and is hereby, GRANTED.

A separate judgment shall enter

concurrently herewith.

This 23rd day of January, 2012.

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