Brown v. Lexington-Fayette Urban County Government Department of Public Works et al
Filing
122
MEMORANDUM OPINION AND ORDER: It is ordered that Dfts' 111 Motion for Summary Judgment be GRANTED. Signed by Judge Joseph M. Hood on 11/5/2012. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
CENTRAL DIVISION at LONDON
PAULA B. BROWN,
Plaintiff,
v.
LEXINGTON-FAYETTE URBAN
COUNTY GOVERNMENT DEPARTMENT
OF PUBLIC WORKS, et. al.,
Defendants.
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Civil Case No.
5:08-cv-500-JMH
MEMORANDUM OPINION & ORDER
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This matter is before the Court on Defendants LexingtonFayette Urban County Government (“LFUCG”), Dewey Crowe, George
Dillon,
Stephanie
Northington,
Kay
Lail
Bryant
and
Leslie
Jarvis’ (collectively, “Defendants”) motion for summary judgment
(D.E.
111).
Plaintiff Paula Brown has responded (D.E. 116),
and
Defendants have replied (D.E. 117).
now
ripe
for
decision.
For
the
Thus, this motion is
reasons
stated
herein,
Defendants’ motion for summary judgment is granted.
BACKGROUND
Plaintiff, an African-American woman, was employed by LFUCG
from 2001 until her termination in 2008.
(D.E. 1, Complaint, at
7; D.E. 13, Amended Complaint, at 12).
In March and April of
2008, Plaintiff engaged in two protected employment activities
by filing complaints against LFUCG with the Equal Employment
Opportunity Commission (EEOC) and the Occupational Safety and
Health Association (OSHA).
Soon
after
(D.E. 1, Complaint, at 10).
Plaintiff
filed
these
complaints,
two
events
happened that are relevant to the resolution of this motion.
First, on May 1, 2008, a customer came to Plaintiff’s desk to
request several permits, and Plaintiff asked a receptionist for
assistance.
Excerpts
(D.E. 111-5, Crowe Affidavit, at 2; D.E. 111-2,
from
Plaintiff’s
Deposition,
at
4).
Plaintiff’s
supervisor, Dewey Crowe, saw her ask for this assistance and
immediately instructed her to return to her workstation.
111-5,
Crowe
Affidavit,
at
2;
D.E.
111-2,
(D.E.
Excerpts
from
Plaintiff’s Deposition, at 4).
Plaintiff began arguing with Mr.
Crowe,
returned
and,
although
she
to
her
workstation
momentarily, she again stopped assisting the customer and went
to Mr. Crowe’s office.
(D.E. 111-5, Crowe Affidavit, at 2-3;
D.E. 111-2, Excerpts from Plaintiff’s Deposition, at 5-6).
When Mr. Crowe instructed her once more to return to her
workstation
elsewhere
and
to
assist
file
an
the
customer,
internal
she
complaint
refused
against
and
Mr.
went
Crowe.
(D.E. 111-5, Crowe Affidavit, at 3; D.E. 111-2, Excerpts from
Plaintiff’s
Deposition,
at
6).
As
a
result
of
Plaintiff’s
conduct, LFUCG suspended her for forty hours without pay for
insubordination, defined under their disciplinary code as the
2
“. . . direct refusal to obey a supervisor’s work related order
or failure to follow directions or instructions.”
Crowe
Affidavit,
at
4;
D.E.
111-6,
(D.E. 111-5,
Definition
of
Insubordination).
After this incident, Plaintiff requested to transfer to a
different department at LFUCG so she would no longer have to
work under Mr. Crowe’s supervision.
(D.E. 111-7, Emails, at 8).
LFUCG denied Plaintiff’s request and told her that she could
either
return
altogether.
to
her
current
position
(D.E. 111-7, Emails, at 8).
or
quit
her
job
Angered over this
decision, Plaintiff sent several emails throughout June 2008 to
various personnel at LFUCG indicating her emotional distress.
(D.E. 98-2; 98-3; 111-7).
For example, she sent an email at
12:16 a.m. on June 5, 2008, which read: “Stress sometimes keeps
us awake. I remind you once again ‘I fear going back to Bldg.
Insp’.”
(D.E. 111-7, Emails, at 5).
A few days later, she sent
another email complaining of emotional distress, concentration
loss, accidents, mistakes, physical symptoms and chest pains.
(D.E. 111-7, Emails, at 8).
She also likened returning to her
former department as forcing a rape victim to return to the rape
scene.
(D.E. 111-7, Emails, at 8).
After
Plaintiff
sent
these
emails,
Leslie
Jarvis,
the
former human resources manager at LFUCG, found it appropriate to
3
schedule a fitness for duty evaluation for Plaintiff.
111-7, Jarvis Affidavit).
(D.E.
Ms. Jarvis feared that the distress
indicated by Plaintiff in the emails would negatively impact her
ability to perform her job and interact with her coworkers.
(D.E. 111-7, Jarvis Affidavit).
Plaintiff was referred to a
psychiatrist to complete this evaluation on July 7, 2008, and
was advised that she could not return to work until the medical
provider gave permission for her to do so.
(D.E. 98-5, July 17
Letter from Jarvis to Plaintiff).
Although the psychiatrist found that Plaintiff was capable
of returning to work on August 18, 2008, LFUCG did not permit
her to return until October 13, 2008.
Behavioral
Medicine
Network;
Performance Expectations).
D.E.
(D.E. 98-1, Letter from
98-6,
Return
to
Work
Ms. Jarvis explained that the delay
was due to LFUCG’s desire to speak with the medical provider,
who was then
vacationing, about how to best ensure Plaintiff’s
smooth transition back to the workplace.
(D.E. 111-7, Jarvis
Affidavit; D.E. 98-20, 9/1/08 Emails between Allen and Jarvis).
Ms.
Jarvis
implement
also
the
explained
medical
that
provider’s
some
time
was
suggestions.
necessary
(D.E.
to
111-7,
Jarvis Affidavit; D.E. 98-20, 9/1/08 Emails between Allen and
Jarvis; D.E. 98-19, 8/12/08 Emails between Jarvis and Kelly).
4
Moreover,
although
Defendants
did
not
initially
pay
Plaintiff for this time off, it was LFUCG’s standard policy to
require employees to use their accumulated leave while out for
medical reasons.
(D.E. 98-5, July 17 Letter from Jarvis to
Plaintiff; D.E. 98-20, 9/1/08 Emails between Allen and Jarvis).
Notably, as soon as the medical provider approved her return on
August 18, 2008, Defendants immediately discussed reinstating
Plaintiff’s
physician
pay
and
while
they
waiting
Plaintiff
transition
were
back
to
speak
into
the
with
the
workplace.
(D.E. 98-20, 9/1/08 Emails between Allen and Jarvis).
Upon
Plaintiff’s return, LFUCG did indeed pay Plaintiff back for all
of her unpaid leave time.
(D.E. 117-1, Payment Documents).
In 2008, Plaintiff filed a lawsuit in this Court alleging a
litany
of
employment
(D.E. 1, Complaint).
discrimination
and
retaliation
claims.
This Court granted summary judgment to
Defendants on all claims and specifically dismissed Plaintiff’s
retaliation
claim
on
the
grounds
that
Plaintiff
establish a prima facie case of retaliation.
failed
to
(D.E. 99, 100).
Subsequently, Plaintiff appealed to the Sixth Circuit on the
retaliation issue, which held that Plaintiff had indeed met the
“low burden” of a prima facie case of retaliation and remanded
the matter for further proceedings.
5
Thus, the only remaining
issue
in
this
case
is
whether
Defendants
retaliated
against
Plaintiff for engaging in protected employment activities.
STANDARD OF REVIEW
Summary judgment is appropriate when “there is no issue as
to any material fact, and . . . the moving party is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
The
moving party may discharge its burden by showing “that there is
an absence of evidence to support the nonmoving party’s case.”
Celotex
Corp.
v.
Catrett,
477
U.S.
317,
325
(1986).
The
nonmoving party “cannot rest on its pleadings, but must identify
specific
facts
supported
by
affidavits,
or
by
depositions,
answers to interrogatories, and admissions on file that show
there is a genuine issue for trial.”
418, 422 (6th Cir. 1997).
Hall v. Tollett, 128 F.3d
A mere scintilla of evidence is
insufficient; “there must be evidence on which the jury could
reasonably
find
for
the
[nonmovant].”
Lobby, Inc., 477 U.S. 242, 252 (1986).
Anderson
v.
Liberty
In considering a motion
for summary judgment, the court must construe the facts in the
light most favorable to the nonmoving party.
Id. at 255.
ARGUMENT
Under
29
“discharge
or
individual
U.S.C.
in
any
because
§
2615(b)(1),
other
such
manner
an
employer
discriminate
individual . . . has
6
may
not
against
any
filed
any
charge . . . related to this subchapter.”
§ 2615(b)(1).
When,
as here, there is no direct evidence of discrimination, the
burden-shifting framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973) applies.
Under this framework, if
the plaintiff establishes a prima facie case, then the burden
shifts
to
the
discriminatory
employer
reason
for
to
an
articulate
adverse
against the plaintiff employee.
a
legitimate
employment
Id. at 802.
action
nontaken
If the employer
satisfies this burden of production, the burden shifts back to
the plaintiff to show that the employer’s proffered reason is
pretext for unlawful discrimination.
Id.
The ultimate burden
of persuasion remains at all times with the plaintiff.
St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Browning
v. Dep’t of the Army, 436 F.3d 692, 695 (6th Cir. 2006).
In this case, Plaintiff argues that Defendants suspended
her for forty hours without pay and mandated that she complete a
fit for duty evaluation in retaliation for filing EEOC and OSHA
complaints in March and April of 2008.
McDonnell
Douglas
burden
shifting
Under step one of the
scheme,
the
Sixth
Circuit
panel held on appeal that Plaintiff established a prima facie
case of retaliation for these two adverse employment actions.
(D.E. 107, Sixth Circuit Opinion, at 12-13).
7
Further,
Defendants
met
their
burden
under
step
two
to
articulate legitimate nondiscriminatory reasons for taking these
actions
against
Plaintiff.
First,
Defendants
explained
that
Plaintiff’s suspension resulted from her insubordinate conduct
on May 1, 2008, when she refused to return to her workstation to
assist
a
customer
after
being
told
to
do
so
three
times.
Because “an employee’s work violations constitute a legitimate
nondiscriminatory
reason
for
adverse
employment
Defendants undoubtedly met their burden.
decisions,”
Walborn v. Erie Cnty.
Care Facility, 150 F.3d 584, 589 (6th Cir. 1998).
Second,
Defendants
also
articulated
a
legitimate
nondiscriminatory reason for placing Plaintiff on unpaid leave
so
that
she
Specifically,
Plaintiff
could
procure
Defendants
throughout
a
produced
June
2008
fit
for
various
that
duty
emails
evaluation.
written
objectively
by
justify
Defendants’ mandate that she see a medical professional, as the
emails clearly indicated her emotional distress and brought her
overall capability to continue working at LFUCG into question.
(D.E. 98-2; 98-3; 111-7); see also Sullivan v. River Valley Sch.
Dist.,
197
F.3d
804,
813
(6th
Cir.
1999)
(“an
examination
ordered for valid reasons can[not] prove discrimination”); Stone
v. Bd. of Dirs. of Tenn. Valley Auth., 35 F. App’x 193, 200 n.1
(6th Cir. 2002) (inappropriate expressions of anger constituted
8
a legitimate, non-retaliatory reason to require the plaintiff to
undergo a fitness for duty examination); Barnes v. Baxter, Civil
Action No. 4:05CV-152-M, 2007 WL 781315, at *3 (W.D. Ky. Mar.
12,
2007)
(noting
that
confrontations
at
nondiscriminatory
reason
the
plaintiff’s
work
for
involvement
constituted
his
employer
a
to
in
angry
legitimate
require
him
to
undergo a psychological examination).
In
failed
delaying
her
to
response
produce
her
return
brief,
Plaintiff
legitimate
to
work
argues
that
nondiscriminatory
after
the
Defendants
reasons
medical
for
professional
cleared her and for failing to pay her during this time off
“until
her
lawyer
Response, at 7).
got
involved.”
(D.E.
116,
Plaintiff’s
Plaintiff’s argument is without merit.
First,
although it is undisputed that Plaintiff was not allowed to
return to work until October 13, 2008, despite being cleared to
return on August 18, 2008, Defendants explained that the delay
was due to their desire to confer with the medical professional
about how to reintegrate Plaintiff into her work environment and
successfully
incorporate
his
suggestions
into
her
arrival.
(D.E. 111-7, Jarvis Affidavit; D.E. 98-21, 9-3-08 Email from
Jarvis to Crowe).
Second, Defendants also explained that under their standard
policy, all employees who were unable to return to work under
9
physician instructions were required to use accumulated leave
balances instead of receiving paid leave.
Letter from Jarvis to Brown).
(D.E. 98-5, July 17
Moreover, once Plaintiff was
cleared to return to work, Defendants discussed placing her on
administrative
communicate
leave
with
with
the
pay
doctor
while
about
they
how
to
were
waiting
best
to
transition
Plaintiff back into the work environment.
(D.E. 98-20, 9/1/08
Emails
Consistently,
between
Allen
and
Jarvis).
upon
Plaintiff’s return, she was paid in full and her unpaid leave
time
was
These
fully
logical
Defendants
Plaintiff.
are
restored.1
and
(D.E.
117-1,
nondiscriminatory
sufficient
to
shift
Payment
reasons
the
burden
Documents).
offered
back
to
by
the
See Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir.
1996) (“the defendant need not prove a nondiscriminatory reason
for
[its
actions],
but
need
merely
articulate
a
valid
rationale”) (citing St. Mary’s Honor Ctr., 509 U.S. at 514).
The Sixth Circuit panel concurred on Plaintiff’s appeal that
Defendants
actions
provided
taken
legitimate
against
nondiscriminatory
Plaintiff.
(D.E.
107,
reasons
Sixth
for
Circuit
Opinion, at 13) (“[W]ithout question, the defendant has offered
1
Plaintiff argues that evidence of retaliatory animus is evident
because Defendants did not actually pay her until her lawyer got
involved. This is, however, pure speculation. There is no
evidence that Defendants planned to do anything but restore her
pay once she returned to work, as they indeed did.
10
legitimate explanations for the treatment of the plaintiff that
have no relation whatsoever to her filing of the EEOC and OSHA
complaints.”).
At
under
step
scheme.
that
this
juncture,
three
of
the
the
burden
shifted
McDonnell
back
Douglas
to
burden
Plaintiff
shifting
Plaintiff, however, failed to carry her burden to show
Defendants’
legitimate
pretext for discrimination.
nondiscriminatory
reasons
were
To raise a genuine issue of fact as
to pretext and defeat a summary judgment motion, a plaintiff
must show that the employer’s stated reason for the adverse
action either (1) has no basis in fact, (2) was not the actual
reason, or (3) is insufficient to explain the employer’s action.
Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 391 (6th Cir.
2009) (quoting White v. Baxter Healthcare Corp., 533 F.3d 381,
393 (6th Cir. 2008)).
Plaintiff fails to indicate which basis she is relying on
to
show
pretext
in
this
case.
However,
because
Plaintiff
neither disputes that she refused to assist a customer after
being thrice told to do so on May 1, 2008, nor disputes that she
authored the emails indicating her emotional distress in June
2008, it is clear that Plaintiff cannot prove pretext by showing
that the proffered reasons have no basis in fact.
because
Plaintiff
has
not
shown
11
that
similarly
Moreover,
situated
employees were treated differently, neither can Plaintiff prove
that
Defendants’
discharge.
explanation
was
insufficient
to
motivate
See Manzer v. Diamond Shamrock Chem. Co., 29 F.3d
1078, 1084 (6th Cir. 1994) (overruled on other grounds by Gross
v. FBL Fin. Servs., 557 U.S. 167, 179 (2009)) (holding that the
third
showing
typically
consists
of
evidence
that
other
similarly situated employees were treated differently than the
plaintiff).
Defendants’
Thus, by elimination, Plaintiff had to show that
reasons
did
not
actually
motivate
their
actions.
See Russell v. Univ. of Toledo, 537 F.3d 596, 607 (6th Cir.
2008) (citing Manzer, 29 F.3d at 1084).
In other words, she had
the burden to show “circumstances which tend[ed] to prove that
an illegal motivation was more likely than that offered than
that offered by the defendant.”
Quite
simply,
Plaintiff
Id.
has
failed
to
articulate
any
evidence to support an argument of pretext even when the record
is reviewed in the light most favorable to her.
First, in
Plaintiff’s affidavit attached to her response brief, she does
not even mention being placed on leave for her fit for duty
evaluation.
(D.E. 116-1, Plaintiff Affidavit).
Moreover, while
she does discuss her suspension in her affidavit, she states
only that Mr. Crowe’s allegation that she failed to follow his
orders on multiple occasions is “positively untrue”, and “Mr.
12
Crowes suspending and terminating me was for other reasons.”
(D.E.
116-1,
Defendant’s
proffered
insufficient
judgment.
Plaintiff
to
Affidavit).
reasons
withstand
These
without
Defendants’
mere
denials
substantiation
motion
for
of
are
summary
See Mitchell v. Toledo Hosp., 964 F.3d 577, 585 (6th
Cir. 1992).
Plaintiff’s case is unlike Hamilton v. Gen. Elec. Co., 556
F.3d
428,
437
distinguished
merely
deny
material
(6th
Cir.
Mitchell
his
facts
2009),
because
employer’s
underlying
in
the
which
plaintiff
legitimate
the
the
did
reasons
incident.
Sixth
more
by
Id.
Circuit
than
contesting
at
437-38.
Therefore, the Sixth Circuit found that the Hamilton plaintiff
met his burden to show pretext, and reversed accordingly.
Id.
By contrast, Plaintiff has never contested the material facts
underlying
Defendants’
actions
against
her-
namely,
that
she
refused to return to her workstation on May 1, 2008, and that
she wrote the emails that brought her fitness for duty into
question.
(D.E. 111-2, Excerpts from Plaintiff’s Deposition, at
3-8; D.E. 116-1, Plaintiff Affidavit).
Plaintiff
does
contest
are
Further, the facts that
immaterial.
For
example,
she
contests in her affidavit that Mr. Crowe had ever given her any
prior directives to refrain from asking her coworkers for help.
(D.E. 116-1, Brown Affidavit).
However, whether or not this is
13
true
is
irrelevant,
as
the
reason
given
for
Plaintiff’s
suspension was that she refused to return to her workstation
three times after being asked to do so on May 1, 2008, a fact
she
readily
admits.
(D.E.
111-2,
Excerpts
from
Plaintiff’s
Deposition, at 3-8).
Although the affidavit of her former coworker, Christine
Wu, is in the record and is presumably offered by the Plaintiff
in opposition to Defendants’ summary judgment motion,2 Wu does
not
mention
Plaintiff’s
suspension
nor
her
fit
for
duty
evaluation except to say that Plaintiff told her that she did
not get paid after her fit for duty evaluation until her “lawyer
made the city pay her back pay.”
3; D.E. 85-3, Wu Affidavit).
(D.E. 32-5, Wu Affidavit, at
This is inadmissible hearsay, and,
as discussed above, it is pure speculation that Defendants paid
Plaintiff only because she obtained legal representation.
See
Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to
support or oppose a motion must . . . set out facts that would
be
admissible
in
evidence.”);
Mitchell,
2
964
F.2d
at
584-86
Plaintiff does not actually point to any affidavits in her
response to Defendants’ motion for summary judgment except her
own. (D.E. 116, Plaintiff’s Response). However, earlier in this
litigation in response to a show cause order as to why her
retaliation claim should not be dismissed, Plaintiff filed
affidavits that could plausibly have been offered to support
Plaintiff’s pretext argument. (D.E. 85-3, 85-9, 85-18). Thus,
these affidavits will be reviewed here.
14
(district
court
correctly
found
that
affidavit
containing
hearsay was an improper Rule 56 affidavit “because it . . . did
not set forth facts that would be admissible into evidence.”).
Wu also affies that her supervisor told her not to talk to
Plaintiff, that Plaintiff was largely disliked by her peers, and
she relays a particular incident in which she observed other
employees reading Plaintiff’s personal emails. (D.E. 32-5, Wu
Affidavit, at 2, 4; D.E. 85-3, Wu Affidavit).
However, Ms. Wu’s
recollections are largely irrelevant to the motion at issue and
fail to show that Defendants’ actions were pretextual.
Indeed,
while Ms. Wu’s affidavit may indicate that her coworkers did not
like Plaintiff, the anti-retaliation provision does not protect
against “petty slights or minor annoyances that often take place
at work.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006); see also Mitchell, 964 F.3d at 585 (“rumors,
conclusory
allegations
and
subjective
beliefs”
are
“wholly
insufficient evidence to establish a claim of discrimination as
a matter of law.”).
John
Firth
For these same reasons, the affidavit from
Stewart,
Plaintiff’s
coworkers
similarly irrelevant.
Finally,
which
this
discusses
breaking
into
this
her
same
instance
of
email
account,
is
(D.E. 85-18, Stewart Affidavit).
Court
agrees
with
Defendants
that
the
affidavit from Kim Asher also fails to support that Defendants’
15
actions were pretextual.
(D.E. 21-4, Asher Affidavit).
Like
the Wu affidavit, Ms. Asher, who was not employed with LFUCG
after
October
2007,
does
not
mention
the
adverse
employment
actions at issue in this case because she was not employed by
LFUCG during the time period that Plaintiff filed her EEOC and
OSHA complaints and afterwards.
(D.E. 21-4, Asher Affidavit).
Instead, Ms. Asher states that when she was first hired, her
supervisor told her Plaintiff was “crazy” and that they (i.e.
Defendants) had “ways of getting rid of people like her.”
21-4, Asher Affidavit).
(D.E.
First, however, this affidavit does not
meet the requirements of Rule 56(c), as it is based on hearsay
evidence.
See Fed. R. Civ. P. 56(c).
Moreover, because Ms.
Asher was not employed by LFUCG when Plaintiff filed her EEOC
and
OSHA
complaints
and
when
Defendants
subsequently
took
adverse employment actions against her, Ms. Asher’s implication
that Defendants’ attitude toward Plaintiff is what led to her
suspension
and
particularly
fit
for
since
duty
evaluation
Defendants
have
is
mere
speculation,
outlined
objectively
legitimate reasons for taking those actions against her.
The Court notes that there are more affidavits dispersed
throughout the record of this case.
there
may
remaining
be
specific
affidavits
to
evidence
support
16
However, to the extent that
scattered
throughout
Plaintiff’s
argument
those
for
pretext, it is not this Court’s job to scour the record more
than
it
already
particularly
has
when
to
find
Plaintiff
evidence
herself
in
has
Plaintiff’s
failed
favor,
to
do
so.
InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.
1989) (“A district court is not required to speculate on which
portion of the record the nonmoving party relies, nor is it
obligated to wade through and search the entire record for some
specific
facts
that
might
support
the
nonmoving
party’s
claim.”).
Citing the unreported case of Cantrell v. Nissan N. Am.,
Inc., 145 F. App’x 99 (6th Cir. 2005), Plaintiff argues that she
has proven pretext by virtue of her prima facie case alone.
(D.E.
116,
Plaintiff’s
Response,
at
8).
However,
while
Plaintiff is correct that Cantrell states that a prima facie
case
can
sometimes
nondiscriminatory
rebut
reasons,
this
a
defendant’s
is
only
the
legitimate
case
when
plaintiff’s prima facie evidence is “sufficiently strong.”
a
Id.
at 107 n.2.
Here, Plaintiff’s prima facie case pales in comparison to
the plaintiff’s in Cantrell, as it consists only of 1) temporal
proximity between the time Plaintiff filed her complaints and
her
suspension
and
fit
for
duty
evaluation,
workload when she returned in October.
17
and
2)
a
large
(D.E. 107, Sixth Circuit
Opinion, at 12-13).
ten
year
history
In contrast, the Cantrell plaintiff had a
of
gross
misconduct,
but
was
fired
for
an
alleged workplace violation that was nowhere near as serious as
her previous violations within three weeks of filing an EEOC
complaint.
Cantrell, 145 Fed. App’x at 103.
Thus, whereas
there was a good argument from the prima facie case alone in
Cantrell
that
the
plaintiff’s
EEOC
filing
was
actually
“the
straw that broke the camel’s back,” there is no such argument in
this case.
Id. at 108.
Indeed, there is an abundance of evidence on the record
that
Defendants
continuously
tried
to
make
their
employment
relationship with Plaintiff a successful one, since even after
Plaintiff’s undisputed conduct and Defendants’ actions against
her, Defendants kept allowing Plaintiff to return to work and
kept
trying
to
reintegrate
her
into
the
working
until her ultimate termination in December 2008.
environment
The fact that
Defendants kept trying to make the employment relationship work
months
after
her
EEOC
and
OSHA
filings
weakens
any
causal
relationship established on the basis of temporal proximity.
Moreover, although the Sixth Circuit noted that Plaintiff’s
allegations
concern,
point.
the
of
extra
Sixth
work
Circuit
in
October
did
not
could
issue
a
be
cause
holding
(D.E. 107, Sixth Circuit Opinion, at 13).
18
a
on
for
this
Therefore,
after careful examination of the record and close analysis, this
Court has determined otherwise.
Plaintiff complains of extra
work upon her return in October, evidenced by a memorandum from
her supervisor outlining her performance expectations and the
fact
that
when
she
was
fired
in
December,
her
workload
was
divided between two full-time and three part-time preexisting
employees.
(D.E. 98-6, Performance Expectations; D.E 32-5, Wu
Affidavit,
at
memorandum
appears
duties.
7).
However,
to
be
a
the
mere
performance
outline
of
expectations
Plaintiff’s
job
Plaintiff has never contested that her job description
generally encompassed all such duties.
Although Plaintiff argues that there was a backlog of work
waiting for her on her return, such as, for example, “loads of
papers in my box” and three and a half months’ worth of HVAC
book updates, she does not appear to have been given a specific
deadline
in
which
to
complete
Performance Expectations, at 4).
these
tasks.
(D.E.
98-6,
Moreover, while it is true
that Plaintiff’s workload was split amongst two full-time and
three part-time employees when she was eventually terminated,
this is unsurprising given that those employees already worked
for LFUCG and took on Plaintiff’s tasks in addition to their
own.
(D.E
32-5,
Wu
Affidavit,
at
7).
Without
more,
this
evidence does not create a genuine issue of fact as to whether
19
the accumulation of work was somehow motivated by Plaintiff’s
filing
of
a
grievance
or
complaint.
Therefore,
unlike
in
Cantrell, Plaintiff’s case, which has always been “at best tenuous,” is not sufficiently strong such that pretext can be
inferred from her prima facie case.
(D.E. 117, Sixth Circuit
Opinion, at 1).
CONCLUSION
For
the
Defendants’
reasons
Motion
for
stated
above,
Summary
Judgment
GRANTED.
This the 5th day of November, 2012.
20
IT
IS
(D.E.
ORDERED
111)
that
shall
be
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