Carter v. Toyota Motor Engineering & Manufacturing North America, Inc.
MEMORANDUM OPINION & ORDER: It is hereby ORDERED as follows: 1. Defendant Toyota Motor Manufacturing, Kentucky, Inc.'s Motion for Summary Judgment 32 is GRANTED; 2. A Separate Judgment will issue. Signed by Judge Danny C. Reeves on 5/15/2017.(KM)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
TOYOTA MOTOR MANUFACTURING,
Civil Action No. 5: 15-373-DCR
Plaintiff Tamika Carter seeks damages from her employer, Defendant Toyota Motor
Manufacturing, Kentucky, Inc. (TMMK), based on claims of race and gender discrimination
under Title VII of the Civil Rights Act of 1964 and under the Kentucky Civil Rights Act.
Carter alleges disparate treatment, retaliation, and a hostile work environment. Following
discovery, the defendant moved for summary judgment, contending that Carter has not made
the prima facie showing necessary to establish her claims. The Court agrees and will grant the
As its name suggests, TMMK manufactures automobiles. [Record No. 32-1 at 2] It
employs more than 9,000 full-time employees, dubbed “team members,” and regularly
operates two production shifts per day, five days a week, at its facility in Georgetown,
Kenucky. [Id.] TMMK ostensibly operates pursuant to an “Equal Employment Opportunity
& Promoting a Respectful Workplace” policy which is explained to each new team member
during his or her orientation and provided as part of a Team Member Handbook. [Id. at 3;
Record No. 32-3 at 54-120]
Carter, an African-American female, began working at TMMK in September 2012 as
a “Variable Workforce” team member employed through staffing agency Kelly Services, Inc.
[Record No. 32-1 at 4]
Carter was formally hired by TMMK as a full-time production
employee on December 16, 2013. [Record No. 4 at 2; Record No. 32-1 at 4] Throughout her
employment, Carter has consistently received positive performance reviews, either “meeting
or exceeding expectations in all areas.” [Record No. 32-1 at 4] At some point during her
employment, Carter applied to become a team leader. [Record No. 32-3 at 52 (Carter
deposition at 286); Record No. 32-5 at 4-5 (Cooley deposition at 51-52)] However, Carter
voluntarily withdrew herself from the promotion process. [Id.] Carter remains “employed in
good standing” with TMMK. [See Record No. 32-1 at 1]
Notwithstanding her positive performance reviews, Carter alleges that she has been
discriminated against “at an alarming rate” during her employment. [See Record No. 36 at 8]
On that basis, she filed a charge with the EEOC in early 2015.1 Carter proceeded to file suit
in this Court on December 17, 2015, along with an Amended Complaint on December 31,
2015. [Record Nos. 1, 4] She alleges discrimination on the basis of her race and gender, that
she was subjected to a hostile work environment, and that she was retaliated against for
complaining to the Human Resources department and for filing a Charge of Discrimination
TMMK suggests that the charge was filed on March 19, 2015. [Record No. 32-1 at 4
n.2; 5 n.3; 8 n.10; 9 n.12; 15; 16] Carter does not mention the date in her pleadings, but
plaintiff’s counsel asserted at the motion hearing that the charge was filed on January 19, 2015.
[See Record No. 51.]
with the Equal Employment Opportunity Commission (“EEOC”). [Record No. 36 at 2] Carter
seeks to enjoin the defendant from “continuing, threatened and future violations” of her rights
as protected under Title VII; compensatory, consequential, and emotional distress damages;
punitive damages under Title VII; costs, attorney’s fees, and pre- and post-judgment interest
on all sums recoverable; and all other relief the Court sees fit to grant. [Record No. 4 at 7] On
February 19, 2016, a Scheduling Order was entered. [Record No. 12] Following the close of
discovery, TMMK moved for summary judgment. [Record No. 32] Response and rely briefs
were timely filed. [Record Nos. 36, 37] A motion hearing was held on January 9, 2017, [see
Record No. 51] and the matter is now ripe for resolution.
Ironically, while Carter remains employed in “good standing,” according to TMMK
her tenure of employment “is best defined not by her performance, but by her complaints.”
[Record No. 32-1 at 1] TMMK suggests that Carter has complained about nearly every aspect
of her employment, including “her supervisors, coworkers, assignments, training, training
opportunities, advancement opportunities, and scheduling.” [Id.] Most telling, they propose,
is Carter’s complaint to Human Resources “about a co-worker’s decision to bring macaroni
and cheese to a team member potluck meal after she (Carter) signed up to bring macaroni and
cheese.” [Id.; Record No. 32-2 at 17-18, 140] With that “backdrop,” TMMK argues that
Carter’s civil rights claims are unfounded, that many claims are time barred, and that “what
[Carter] did not (and could not) do was proffer any substantive evidence in support of her legal
claims.” [Record No. 32-1 at 1-2] During the motion hearing, counsel for the defendant stated
succinctly “we do not know why we are here.”
Carter strongly counters that, “[a]t the outset of her employment with Toyota” she was
“subjected to racial discrimination that continued throughout the tenure of her employment.”
[Record No. 36 at 2] Shortly after her hire date, she claims to have been “subjected to
harassment based upon her race and gender.” [Id.] Carter specifically alleges four types of
job-duty related (non-verbal) discrimination and numerous instances of verbal discrimination.
Denial of Offline Training2
Carter’s primary complaint relates to the denial of what is known as “offline training.”
[Record No. 4 at ¶15; Record No. 36 at 2] As a production employee, Carter works on a
production line. Offline training is training to work in the role of a team leader. Team leaders
do not work on the line directly, but instead support the line workers, including filling-in when
a team member needs a restroom break. “Offline training is for team members who are
interested in becoming Team Leaders; basically, the team members learn how to fill-in for the
Team Leaders.” [Record No. 32-1 at 6 n.6 (citing Carter deposition at 168-69); see also Record
No. 36-2 at 2 (Cooley deposition at 29)] Carter alleges that “[t]hroughout her employment,
she consistently requested that she receive offline training to her Group Leader, Robert
“Sean” Cooley; however, he consistently declined her requests.” [Record No. 36 at 2 (citing
Cooley deposition at 27-28)] Carter alleges in her Amended Complaint that she was denied
offline training specifically on or about October 17, 2014. [Record No. 4 at ¶ 19]
Carter does not allege the denial of offline training as gender-based discrimination.
[Record No. 36 at 2 n.1] She does, however, allege the denial of offline training as retaliation.
[Record No. 36 at 10]
Denial of Overtime3
Carter’s second non-verbal complaint is the denial of overtime opportunities. [Record
No. 4 at ¶14; Record No. 36 at 2] This allegation centers on opportunities to conduct what is
known as “5S” cleaning.4 According to TMMK, 5S cleaning “is basically an expectation that
team members devote ‘down’ time to tidying up their work areas.” [Id.] However, on
occasion, overtime was offered to conduct this task. Carter alleges three instances of being
denied overtime opportunities that were afforded to others. [Record No. 36 at 2 (citing Carter
deposition at 192)] She contends that, “[o]n at least one occasion, Mr. Cooley told Carter that
there was not available work for 5S cleaning when in fact there was work available, which was
provided to the Caucasian Production Workers.” [Record No. 36 at 2 (citing Carter deposition
at 193)] Carter clams that, on another occasion, Group Leader Cooley announced that there
was 5S cleaning overtime available following the conclusion of their shift that day and the
next, but Cooley left before telling Carter where the work was specifically to be performed.
[Record No. 36 at 6 (citing Carter deposition at 203)] Finally, Carter alleges that at least one
Caucasian employee was allowed to begin his shift four-hours early, the extra hours counting
as overtime, while she was not afforded that opportunity. [Record No. 36 at 2 (citing Carter
deposition at 196-97)]
As before, Carter does not allege the denial of overtime as gender-based discrimination,
but does allege it as retaliation. [Record No. 36 at 2 n.1, 10]
“5S” is an acronym for “Sifting, Sorting, Sweeping, Spick and Span, Standardize.”
[Record No. 32-1 at 6 n.8] “Spick and Span” appear to count as a single “S.”
Defect Countermeasure Forms5
The third type of non-verbal discrimination Carter alleges relates to “countermeasure”
or “CM” forms. Per TMMK policy, CM forms are to be completed by team members anytime
they are responsible for a defect on the production line. [See Record No. 32-4 at 24-25 (Lance
deposition at 67-68)]
Carter alleges that she was made to complete more defect
countermeasure forms than Caucasian co-workers.
[Record No. 36 at 2 (citing Carter
deposition at 127)] In fact, she alleges that team leader Mike Johnson would cover up defects
made by Caucasian Team Members to prevent them from having to complete CM forms.
[Record No. 36 at 2 (citing Carter deposition at 141)] Carter claims that she was chastised for
a defect on October 24, 2014, but when two Caucasian employees had a “similar defect issue”
a couple of days later, “Mr. Johnson covered up that defect and downplayed the significance
of it.” [Record No. 4 at ¶20] More defects, documented by CM forms, can be detrimental to
an employee’s performance reviews. [See Record No. 36-2 at 2 (Cooley deposition at 28-29)]
Finally, Carter alleges that she was assigned to parts-loading (apparently, a disfavored
activity) more often than other employees. [Record No. 4 at ¶¶15, 17] Carter mentions in her
Amended Complaint that she aired this concern to Human Resources employee Tiffany Lance
in August 2014. [Id.]
Carter does not suggest that she dropped the defect countermeasure form claim as a
basis for adverse employment action based on race. However, because the alleged instance of
this adverse treatment included a Caucasian female experiencing the same alleged disparate
treatment, a race-based claim is questionable. [See Record No. 36-1 at 12 (Carter deposition
Carter alleges the following as verbal acts of discrimination:
On February 2, 2014, co-worker Bruce Steele told Carter she received her job
“because she was a black and a woman.” [Record No. 4 at ¶13]
Co-worker Dustin Allen called Carter “Raggedy Ann” due to the weave in her hair.
[Record No. 36 at 3 (citing Carter deposition at 178)]
Michael Johnson, a team lead, made jokes about Carter’s hair extensions on or about
August 7, 2014. [Record No. 4 ¶16; Record No. 36 at 3 (citing Carter deposition at
“Mr. Johnson additionally made comments about Carter’s hair and skin
color, such as: ‘I see you got your weave in today. You need a tan.’” [Id.]
A co-worker “stated that Carter look (sic) like she was 48-years-old.” [Record No.
A co-worker “told Carter that if he put on black sleeves and black gloves, he would
look like her.” [Record No. 36 at 3 (citing Carter deposition at 190-91)]
When Carter was performing manual line training in 2014, “Steve Edwards
whispered to Chris Murphy and Dustin Allen to interrupt her training by
purposefully harassing her and keep going to the restroom. Mr. Murphy and Mr.
Allen would laugh, mock and make fun of Carter while she was being trained. Mr.
Edwards told other employees to ‘not listen to a damn word she says. She doesn’t
know what she is doing.’ In addition, Wayne Conley called Carter a ‘dumbass.’”
[Record No. 4 at ¶ 24; Carter deposition at 194-95]
Aaron Frank, a co-worker, told Carter, “[Y]ou are a woman, let me hear you roar.”
Mr. Frank additionally made jokes about Carter being a female when she made
mistakes in her work. [Record No. 4 at ¶25; Record No. 36 at 2 (citing Carter
deposition at 67)]
When Carter complained to her Group Leader/Supervisor Sean Cooley of Frank’s
“hear you roar” comment, Cooley “told Carter not be so sensitive and ‘that’s just
how guys are.’” [Record No. 4 at ¶25; Record No. 36 at 2-3 (citing Carter deposition
Cooley additionally told Carter that she needed to “toughen up” and “stop being the
victim.” [Record No. 36 at 3 (citing Carter deposition at 82)]
“After Carter lost some weight, a co-worker told her that the weight she lost ‘ended
up in her butt’ and commented that she was ‘pear shaped.’” [Record No. 36 at 3
(citing Carter deposition at 109)]
“On a day where Carter dressed up a little more than usual, a co-worker asked her
if she came to work to look for a man.” [Record No. 36 at 3 (citing Carter deposition
“After Carter made complaints to Toyota’s Human Resources Department and filed
a Charge of Discrimination, her supervisors and co-workers began to refer to Carter
as the ‘HR queen.’” [Record No. 36 at 3 (citing Carter deposition at 113-14)].
“Throughout her employment, Carter was called an ‘HR queen’ by [Mike] Johnson
and [Bruce] Steele. [Mike] Johnson additionally posted online that Carter was a
‘victim.’” [Record No. 4 at ¶28]
“Carter’s co-workers would warn current and new employees to not say anything
to her or around her because she would go to the Human Resources department.”
[Record No. 36 at 3 (citing Carter deposition at 156)].
“Mr. Cooley  concocted a plan to get Carter in trouble by telling one of Carter’s
co-worker’s to yell ‘stop harassing me’ to Carter.” [Record No. 36 at 3 (citing
Carter deposition at 155-56)]
“Throughout her employment, Carter was mocked by [Mike] Johnson and [Bruce]
Steele for having dark skin and hair extensions.” [Record No. 4 at ¶27]
The evidence is viewed in the light most favorable to the nonmoving party when
considering a motion for summary judgment under Rule 56. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury functions, not
those of a judge.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Therefore, the
central question at the summary judgment stage is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251.
However, “the nonmoving party cannot rest on its pleadings but must come forward
with some probative evidence to support its claim.” Lansing Dairy, Inc. v. Espy, 39 F.3d 1339,
1347 (6th Cir. 1994). Moreover, the “mere existence of some alleged factual dispute between
the parties” is not sufficient to defeat an otherwise properly supported motion. Id. (quoting
Anderson, 477 U.S. at 247-48 (emphasis in original)). There must instead be a dispute as to a
“genuine issue of material fact,” such that if proven at trial “a reasonable jury could return a
verdict for the nonmoving party.” Id. TMMK argues that it easily meets the summary
judgment burden because Carter did not, and cannot, proffer any substantive evidence in
support of her legal claims. [Record No. 32-1 at 2]
Statute of Limitations
The defendant argues as an initial matter that a number of the instances cited as
supporting Carter’s claim are time-barred because they occurred more than 300 days prior to
her charge being filed with the Equal Employment Opportunity Commission.
Carter alleges a number of minor incidents which are appropriate for summary
judgment under well-established Sixth Circuit law. The Court, however, need
only consider some of her allegations, as several of her complaints are untimely.
Title VII requires a charge alleging discrimination or harassment be made within
300-days of the alleged discriminatory/harassing conduct to be considered
timely. See 29 C.F.R. § 1601.13(a)(4)(ii)(A); “the relevant administrative
regulation provides that a charge is ‘deemed to be filed with the Commission
upon receipt’ and is timely if ‘received within 300 days from the date of the
alleged violation” (emphasis in original). Carter’s EEOC Charge was filed on
March 19, 2015. Thus, only allegations of conduct occurring within 300-days
of when her Charge was filed (May 10, 2014 forward) are timely.
[Record No. 32-1 at 16] While a correct statement of the law for Title VII purposes, the
defendant’s assertion that the Court need not consider all of the alleged conduct is incorrect.
The Kentucky Civil Rights Act (”KCRA”), codified at KY. REV. STAT. § 344.010, et seq.,
contains a five-year statute of limitations. KY. REV. STAT. § 413.120(2); see Effinger v. Philip
Morris, Inc., 984 F. Supp. 1043, 1047 (W.D. Ky. 1997) (citing Clifton v. Midway College, 702
S.W.2d 835, 837 (Ky. 1985) (discussing statute of limitations)); Jones v. Peabody Coal Co.,
No. 88-0065-0(CS), 1989 WL 225719, at *5 (W.D. Ky. Nov. 1, 1989) (“[T]he five-year statute
of limitations [under K.R.S. § 413.120(2)] applies to the Kentucky Civil Rights Act.”).
Liability under the Act mirrors federal law. Specifically, “Kentucky courts look to federal law
in interpreting the Kentucky Civil Rights Act.” Woodrum v. Lane Bryant The Limited, Inc.,
964 F. Supp. 243, 244 (W.D. Ky. 1997). “[T]he policy of the Kentucky Civil Rights Act is:
‘To provide for execution within the state of the policies embodied in the Federal Civil Rights
Act of 1964 . . . and the Civil Rights Act of 1991.’” Id. (citing KRS 344.020(1)(a)); Gafford
v. General Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993) (“Kentucky courts have followed
federal law in interpreting the Kentucky statute”). For purposes of the Rule 56 analysis, there
is no basis for distinguishing between the KCRA and Title VII. Moreover, because the present
suit was filed less than 5 years after Carter began working for TMMK, the statute of limitations
is not at issue.
Discrimination/Disparate Treatment Claim
“[Title VII’s] antidiscrimination provision seeks a workplace where individuals are not
discriminated against because of their racial, ethnic, religious, or gender-based status.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 800-801 (1973)). Carter alleges discrimination based on both
race and gender. The burden of proof is the same regarding each claim. “To prove a prima
facie case of gender discrimination a plaintiff must prove: (1) she is a member of a protected
class; (2) she applied for and was qualified for a promotion; (3) she was considered for and
denied the promotion; and (4) other employees of similar qualifications who were not members
of the protected class received promotions at the same time her request for promotion was
denied.” Warf v. U.S. Dep’t of Veterans Affairs, 713 F.3d 874, 879 (6th Cir. 2013); Michael
v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir. 2007) (applying same standard
for race-based claim). Upon the plaintiff establishing a prima facie case, “[t]he burden then
shifts to the defendant to provide a legitimate, nondiscriminatory reason for promoting the
other employee.” Warf, 713 F.3d at 879 (citing McDonnell Douglas, 411 U.S. at 802). Under
the McDonnell Douglas burden-shifting framework, “[o]nce the employer has provided a
nondiscriminatory reason for its actions the burden shifts back to the employee to show that
the reason is pretext for discrimination.” Id.
While often stated in terms of a promotion, this standard applies to any disparate
treatment that constitutes adverse employment action. “An adverse employment action in the
context of a Title VII discrimination claim is a ‘materially adverse change in the terms or
conditions of employment because of the employer’s actions.’” Michael, 496 F.3d at 593
(citing Allen v. Michigan Dept. of Corr., 165 F.3d 405, 410 (6th Cir. 1999)). Moreover,
[a] materially adverse change in the terms and conditions of employment must
be more disruptive than a mere inconvenience or an alteration of job
responsibilities. A materially adverse change might be indicated by a
termination of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to a
Ford v. General Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002).
Carter asserts that she meets this test. She claims to have “suffered an adverse
employment action when she was denied opportunities for offline training and voluntary
overtime, which resulted in a significant loss of income.” [Record No. 36 at 5] Moreover,
“Toyota’s failure to provide Carter with offline training kept her from gaining the knowledge
to further herself within Toyota . . . [and] Toyota’s actions in requiring her to complete defect
countermeasure forms more frequently than her Caucasian co-workers additionally kept her
from furthering herself within Toyota because defect countermeasure documents are reflected
negatively upon the employee.” [Id.] It is undisputed that Carter is a member of a protected
class. Therefore, her burden is to show materially adverse changes that she suffered but that
similarly-situated non-protected-class co-workers did not suffer.
Carter contends that she consistently was denied offline training, despite the supposed
practice of TMMK to provide offline training to any employee who requested it. [Record No.
36 at 6] She claims that her supervisor, Sean Cooley “would deny [her] requests citing that
she ‘wasn’t ready.’” [Id. (citing Cooley deposition at 27-28)] Carter cites the deposition of
her co-worker Bruce Steele to establish that “it was normal procedure that a Team Member
will receive offline training if they want it.” [Id. (citing Steele deposition at 17)] Moreover,
Carter cites Steele’s testimony as establishing that “he received offline manual training upon
his request, and that he was aware of other Team Members who were trained upon their
requests as well.” [Id.]
In reality, Carter has not offered evidence through the testimony referenced (or
otherwise) that it is or was the policy of TMMK to provide offline training to employees each
time an employee requested it. Bruce Steel did not testify that he received offline training
every time he requested. On the contrary, Steele testified that he too had been denied offline
training.6 He explained that there are factors that go into the decision, such as the seniority of
Q Okay. And did you receive training every time you requested to be trained?
Okay. Do you recall specific instances where you were denied training?
- 13 -
the requestor. [Record No. 36-3 at 2 (Steele deposition at 16-17)] This is consistent with Sean
Cooley’s testimony regarding the offline training schedule. [Record No. 36-2 at 2 (Cooley
deposition at 27-28)]
While Carter suggests she was “consistently” denied offline training, she does not
elaborate on how many times she was denied such training, and she does not allege that coworkers of less seniority received offline training more often than, or prior to, her receiving it.
It is Carter’s responsibility to “come forward with some probative evidence to support [her]
claim.” Lansing Dairy, 39 F.3d at 1347. Without evidence of a “genuine issue of material
fact,” there is not a sufficient basis for a jury to find in her favor. Id.
Carter fails to provide any probative evidence that would support a jury finding in her
favor. It is not disputed that Carter was at one point or another denied offline training. [See
Record No. 36-1 at 17 (Carter deposition at 194).] But even if she were “consistently” denied
offline training, it would not be actionable if she were denied in favor of those with seniority
(assuming lack of pretext). Cooley acknowledges in his deposition that Carter came to him
“on numerous occasions” requesting offline training.
[Record No. 36-2 at 2 (Cooley
deposition at 27)] However, his testimony states only that he denied Carter offline training the
first time she approached him to ask.
[Id. (Cooley deposition at 28)]. And she was denied
Q Okay. Tell me about those.
A Because somebody else wanted to be trained. So if [Bryan] Hart or Tamika wanted
to be trained, they were trained instead of me. [Record No. 36-3 at 2 (Steele deposition at 16)]
because “she wasn’t ready - - from a performance standpoint.” [Id. (Cooley deposition at 2829)].7
Therefore, even assuming Carter has made a prima facie case, TMMK has met its
burden of showing a non-discriminatory reason for not providing the offline training—she was
too new to the job and had not proven herself (performance-wise) to be ready for more
responsibility. Carter has not suggested, argued, or otherwise shown, that this explanation is
pretextual. This claim fails because Carter has not met her burden under McDonnell Douglas.
Implicit in the preceding analysis is that the denial of offline training is itself a
materially-adverse change in the terms and conditions of employment. To independently
support this assumption, plaintiff’s counsel suggested during the hearing that Carter’s lack of
offline training resulted in her inability to become a team leader in October 2014.8 This
allegation is not otherwise made in the pleadings or in Carter’s Response, and is not supported
by any record evidence. At some point, Carter did apply to become a team leader, but
voluntarily withdrew herself from consideration. [Record No. 32-1 at 14 (citing Carter
TMMK notes in its reply:
At the time Carter first made her request [for offline training], she was “still
having some defects” and “wasn’t completing [her job] process[es] quite on
time.” Carter was also “stopping the [production] line so much that [it was]
starting to affect [the] productivity of the whole line.” (Cooley Dep., pp. 2829). It was this learning curve (which many new team members experience),
not Carter’s race, that caused Cooley to conclude she was not ready to perform
Team Leader duties.
[Record No. 37 at 2]
Counsel stated, without elaboration, that Carter was not able to become a team leader
in 2014 “because she was denied offline training.”
- 15 -
deposition at 233, 286; Cooley deposition at 51-52)] The plaintiff has not provided a timeline
of events, but the deposition testimony does not suggest that this withdrawal from
consideration was the result of, or somehow mandated by, her lack of offline training.
It bears noting that while Cooley initially told Carter that she “wasn’t ready” for offline
training (and by inference, to become a team leader), that changed. Cooley eventually
encouraged Carter to pursue a team leader position, and completed the necessary paperwork
for her to do so. [Record No. 32-1 at 14] Given Carter’s voluntary withdrawal from
consideration for a team leader position, her preceding claims ring more hollow.
Seeking to remove any doubt of this claim’s futility, TMMK points out that individuals
promoted to team leader during Carter’s tenure all had greater seniority than the seniority
Carter possessed. “While Carter testified there had been several White males promoted to
Team Leader positions in the Powertrain Department, she admitted they all were in the
Powertrain Department at the time Toyota hired her (Carter Dep., p. 135) and had greater
Departmental seniority. Simply put, none of them were similarly-situated to Carter.” [Record
No. 32-1 at 15]
Finally, while the Court again assumes that a denial of offline training is material in
and of itself, the defendant rightly notes that, in the usual case, without applying for a position,
a plaintiff cannot make a prima facie claim of adverse employment action. [Record No. 32-1
at 14] The third prong requires that the plaintiff applied for the position sought. See Hall v.
Michigan State Police, 290 F. App’x 913 (6th Cir. 2008)
As explained in her response:
Carter testified at her deposition that she would ask Mr. Cooley if there was any
available work for 5S cleaning on Saturdays, and he would reply “no,” but she
would later find out that her co-workers were allowed to conduct 5S cleaning.
[Record No. 36-1 (Carter deposition at 192-93)]. Carter also testified that she
was not afforded any voluntary overtime in comparison to her Caucasian
coworkers, such as Bruce Steele. Id. at 196. Specifically, on October 20, 2015,
Mr. Cooley advised the employees that there would be overtime for 5S training
that day and the next. Id. at 203. Carter went to locate Mr. Cooley at the end
of her shift to begin 5S cleaning, but he had already left the building. Id.
Thereafter, Carter became aware that some employees were allowed to conduct
5S cleaning that day. Id.
[Record No. 36 at 6]
This circuit has recognized, though not formally, that the denial of overtime may
constitute adverse employment action. Broska v. Henderson, 70 F. App’x 262, 267 (6th Cir.
2003) (citing Montgomery v. Honda of Am. Mfg., Inc., 47 F. App’x. 342 (6th Cir. 2002)).
However, the Sixth Circuit has not been shy to deny such claims where sufficient evidence is
While we again stress that allegations of a denial of overtime, properly
supported, could constitute an adverse employment action, Broska has put forth
virtually no evidence on the overtime issue. In fact, we find this case to be very
similar to Montgomery in that regard. Like the plaintiff in Montgomery, Broska
has not presented evidence showing that he has been denied overtime
opportunities that others have received. Broska has not even stated how much
overtime he lost due to the retaliation. The only evidence that Broska has
adduced is his own terse statement in his affidavit that the Post Office
diminished “my work responsibilities in the sorting of my business mail,” which
caused him to lose overtime “in excess of $16,000.” We find this insufficient to
withstand the defendants’ motion for summary judgment.
Id. at 268 (internal citation omitted; emphasis added). This case suffers from the same flaw.
But unlike Broska, Carter has not so much as alleged a dollar loss resulting from her alleged
denial of overtime.
Carter alleges that on three occasions she did not receive overtime that others were
afforded. But during her deposition, the only specific instance she describes occurred on
October 20, 2015. [See Record No. 37 at 4] On that occasion, Carter alleges that her
supervisor, Sean Cooley, announced that there was 5S-cleaning overtime available following
the conclusion of their shift that day and the next, but Cooley left before telling Carter where
the work was to be performed. [Record No. 36 at 6 (citing Carter deposition at 203)] It is far
from clear that the Cooley’s mere departure for the day without speaking to Carter evidences
animus towards Carter, much less animus on account of her race. Carter does not claim that
Cooley intentionally avoided her, or that she was the only employee who wanted overtime on
that occasion but was unable to work it because Cooley allegedly did not make a point of
speaking to her individually before he left for the day. There is no suggestion or evidence to
establish that Cooley had an obligation to speak with Carter before he left, or that he knew that
Carter wished to speak with him but left regardless. Carter makes no allegation that Cooley
intended to prohibit her from receiving overtime on this occasion. To establish a prima facie
case, something more would be required, such as evidence to corroborate that other individuals
actually worked overtime on the date(s) Carter did not.
Requiring some (or any) corroborating evidence is a low bar. If Carter’s co-workers
were permitted overtime on days when she was not given that opportunity, there would be time
records to reflect this fact. Carter admits that an employee’s overtime would be recorded as
an electronic record. [Record No. 36-1 at 17 (Carter deposition at 193)] However, despite
complete discovery -- and the lack of any discovery disputes -- Carter has failed to offer any
evidence, or shown by deposition or affidavit that any co-workers, much less those of non- 18
protected status, worked overtime on days that she was denied. She makes no allegation of
the hours or earnings lost (seriously imperiling a jury’s ability to calculate compensatory
damages). The utter lack of evidence is fatal to her claim, especially given Carter’s admission
that she has been afforded some voluntary overtime. [Record No. 36-1 at 18 (Carter deposition
at 196-97)] As in Broska and Montgomery, Carter’s bare allegations are insufficient to survive
Carter points to testimony in her deposition that “she received more countermeasure
complete more defect countermeasure documents than her Caucasian co-workers.” [Record
No. 36 at 2, 6 (citing Carter deposition at 127)] She also alleges that team leader Mike Johnson
“covered up defects for Steve Edwards, Caucasian, and Bryan Hart, Caucasian.” [Record No.
36 at 6 (citing Carter deposition at 141)] This allegation suffers from two fatal flaws. First,
TMMK policy requires CM forms be completed by team members anytime they are
responsible for a defect on the production line. [See Record No. 32-4 at 24-25 (Lance
deposition at 67-68)]
Therefore, being required to fill out countermeasure forms, alone,
cannot constitute adverse employment action. Carter’s allegation that she received more CM
forms than her Caucasian co-workers is irrelevant if she “received more CM forms than anyone
else in her group” because she, in fact, had more defects. But Carter does not specify.
Assuming that this is what Carter means (i.e., that she was made to fill out more CM forms
per defect than her co-workers and in violation of TMMK policy), she provides no evidence,
including testimony, to support this claim. Carter provides one specific example—that team
leader Mike Johnson “covered up” defects for two Caucasian co-workers. The specifics of
this allegation render it meaningless. First, Carter alleges that she and Amy Simon, a
Caucasian female, were both being blamed for the defect while the male-coworkers’ roles were
being covered-up. [Record No. 36-1 at 12 (Carter deposition at 140-42)] This instance, on
its face, does not support Carter’s claim that she was treated disproportionately to Caucasian
team members. Second, Carter admits that, in fact, all four individuals were made to fill out
CM forms after the incident: “All four of us sat there; myself, Amy Simon, Steve Edwards
and Bryan [Hart].” [Id. (Carter deposition at 142)]
Carter provides no other examples, and does not specifically allege sex-based
discrimination on the basis of CM forms. In the end, CM forms are vital business records, and
Carter has failed to reference or provided any statistical evidence whatsoever regarding the
frequency with which she and her co-workers completed CM forms. It is true that CM forms
matter. Testimony presented suggests that CM forms may prevent a team member from
receiving offline training, and ultimately delay or inhibit one’s ability for job advancement.
This is only natural because CM forms denote production defects, and production defects are
bad for business. However, at the very least, Carter should be able to obtain evidence beyond
her own assertion that she completed more defect CM forms than anyone else on her team.
With a zero documentary showing, there is insufficient evidence for a jury finding in her favor.
Carter alleges in her Amended Complaint that she was assigned the task of “partsloading” more often than other employees. [Record No. 4 at ¶¶15, 17] While she apparently
aired this concern to Human Resources employee Tiffany Lance in August 2014, [Id.], there
is nothing referenced on this point in Carter’s Response. Carter’s deposition testimony
suggests that team leader Mike Johnson made “excuses” for why co-worker Bryan Hart was
not required to perform parts-loading after he had been training offline, as was customary.
[Record No. 36-1 at 16 (Carter deposition at 190)] Carter’s suggestion that Johnson “usually”
skips the person for this duty, even if taken as true, is insufficient to establish the allegation
made in the amended complaint: that is, that she was assigned the task more often than others.
Delayed Hiring by TMMK
A fifth (potential) claim, not discussed above, is mentioned solely by the defendant.
According to TMMK, Carter claims that Sean Cooley “held” her “hiring packet,” which had
the effect of delaying the date on which she became an actual TMMK employee. [Record No.
32-1 at 4 n.2] TMMK provides an excerpt of Carter’s deposition testimony on this point.
[Record No. 32-3 at 48-49 (Carter deposition at 215-16)] Assuming that Carter intends to
assert this claim, there is no suggestion that Carter’s hire date was delayed longer than other
similarly-situated individuals. In fact, there is no suggestion at all that she was treated
differently than anyone in being hired from Kelly Services, the staffing agency. Carter does
not make this allegation in her Amended Complaint or in her response. Therefore, given the
lack of any argument in support of the claim, and an apparent absence of any suggestion of
disparate treatment, this claim necessarily fails.
Having considered all of Carter’s disparate treatment claims, the Court finds that the
plaintiff has consistently failed to establish a prima facie case or, where relevant, has failed to
rebut TMMK’s proffered non-discriminatory reasons for the actions alleged. Without a
genuine issue of material fact, the defendant is entitled to summary judgment on Carter’s
disparate treatment claim.
Hostile Work Environment Claim
“A hostile work environment claim requires proof that (1) plaintiff belongs to a
protected class; (2) she was subject to unwelcome harassment; (3) the harassment was based
on race; (4) the harassment affected a term, condition, or privilege of employment; and (5) the
defendant knew or should have known about the harassment and failed to take action.” Phillips
v. UAW Int’l, 854 F.3d 323, 2017 WL 1337236 at *3 (6th Cir. 2017). The same standard
applies for harassment based on gender. See Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d
724, 733 (6th Cir. 2006).
The fourth prong of the test, “whether harassment was so severe and pervasive as to
constitute a hostile work environment,” is “quintessentially a question of fact.” Smith, 813
F.3d at 310 (quoting Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th Cir. 2006)). However,
as “decades of precedent” recognize, courts retain the authority at the summary judgment stage
to “determine that offensive conduct is not severe or pervasive enough to constitute a hostile
work environment.” Phillips, 854 F.3d 323, 2017 WL 1337236 at *3 n.4 (6th Cir. 2017)
(listing cases). That is, “[courts] continue to apply ‘standards for judging hostility [that] are
sufficiently demanding to ensure that Title VII does not become a general civility code.’” Id.
(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the
circumstances,9 which may include the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23 (1993); see also, Barrett 556 F.3d at 515 (citing Harris for a “totality of the
circumstances” test); Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir. 2008)
(same). “[C]onduct must be extreme to amount to a change in the terms and conditions of
employment[.]” Faragher, 524 U.S. at 788. “[S]imple teasing, . . . offhand comments, and
isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
“terms and conditions of employment.” Id.
With respect to the fifth prong of the test, “[t]o establish employer liability where the
harasser is a co-worker, a plaintiff must show that the employer knew or should have known
of the conduct and failed to take prompt and appropriate corrective action.” Smith v. RockTenn Servs., Inc., 813 F.3d 298, 307 (6th Cir. 2016). On the other hand, “employers are
vicariously liable for harassment by supervisors, and the employee need not show that the
employer had knowledge of the harassment.” Barrett v. Whirlpool Corp., 556 F.3d 502, 516
(6th Cir. 2009). Nonetheless, “an employer can raise an affirmative defense to liability for
supervisor harassment by establishing: (1) that it exercised reasonable care to prevent and
correct promptly any racially harassing behavior by its supervisor, and (2) that the plaintiff
“[D]istrict courts must not conduct separate analyses based on the identity of the
harasser unless and until considering employer liability.” Williams v. Gen. Motors Corp., 187
F.3d 553, 562-63 (6th Cir. 1999).
employee unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer or to otherwise avoid the harm.” Id.
As an African-American, and as a female, Carter is a member of a protected class.
Taking her allegations as true, with some corroborated by other evidence, she meets the second
and third prongs of the test—that she was subject to unwelcome harassment, and that it was
based on her protected status.10 However, considering the circumstances as a whole, Carter
has not established that the comments were severe or pervasive enough to be actionable. As
stated above, the conduct must be “extreme” to “amount to a change in the terms and
conditions of employment.” Faragher, 524 U.S. at 788. While many of the comments alleged
are offensive, they can hardly be said to be independently severe. “To succeed, a plaintiff must
show that the work environment was both subjectively and objectively hostile; in other words,
that the plaintiff not only perceived the work environment as hostile, but that a reasonable
person would have found it hostile or abusive as well.” Rock-Tenn, 813 F.3d at 309 (citing
Harris, 510 U.S. at 21).
To pick an egregious example, the suggestion that Carter received her job “because she
was black and a woman” is highly offensive. But while egregious, it is hardly “extreme”
harassment. By way of comparison, in Williams v. CSX Transp. Co., 643 F.3d 502 (6th Cir.
2011), the Sixth Circuit found a supervisor’s comment calling Jesse Jackson and Al Sharpton
“monkeys” and “saying that black people should ‘go back to where [they] came from’” to be
“insensitive, ignorant, and bigoted,” but “not sufficiently “severe” or “pervasive” standing
The alleged comment “you look like a 48-year-old” is ambiguous and of no substantive
import given that Carter has not alleged age-based discrimination.
alone to create a jury question on [the plaintiff’s] racially hostile work environment claim.”
643 F.3d at 513. The Court found the comments to “more closely resemble a ‘mere offensive
utterance’ than conduct that is ‘physically threatening or humiliating.’” Id. It is hard to see
how the alleged comment to Carter (insinuating that she was not individually qualified but
received her position only because of her race and sex) is more humiliating than a comment
debasing an entire race.
To be sure, the comments here were directed at Carter personally, rather towards a
racial group generally, but they are at most equally non-severe on the records as a whole. To
that end, other comments, outlined in detail above, include references to Carter “having her
weave in today,” being called “Raggedy Ann” because of her hair,11 being told “you need a
tan,” the suggestion that if a co-worker would put on black sleeves and black gloves he would
“look like her,” being told she was “pear shaped” and her weight “ended up in her butt,” asking
her if she “came to work to look for a man,” being told to “toughen up” and “don’t be so
sensitive,” and being called an “H.R. queen.” The other comments amount to petty insults,
and are not suggestive of pervasive harassment. TMMK points to evidence in the record that
Carter herself engaged in such petty slights.12 Indeed, “[t]he shop floor is a rough and
TMMK asserts that comments or policies based on hair-styles are not actionable under
Title VII because they are no immutable characteristics. [See Record No. 37 at 7 n.4 (citing
One of Carter’s co-workers, Bruce Steele (White), testified Carter made fun of
a male co-worker with a lazy eye, calling him “crooked eye.” She also called
other co-workers “fat” and “trailer trash,” and teased yet another coworker about
his wife cheating on him and had a baby by another man while the two were still
married (Deposition of Bruce Steele, hereafter “Steele Dep.,” pp. 19-20; cited
portions of Steele’s deposition are attached hereto Tab F). Steele further
testified Carter “voiced concerns” about comments allegedly made to her, but
- 25 -
indelicate environment in which finishing school manners are not the behavioral norm.”
Williams v. Gen. Motors Corp., 187 F.3d 553, 570–71 (6th Cir. 1999) (Ryan, J., concurring in
part and dissenting in part)
Even assuming that Carter has established the severity prong, she fails to establish
employer liability. The comments in Williams were made by supervisors, while the vast
majority of comments here were made by coworkers. For harassment by a co-worker, Carter
must show that TMMK “knew or should have known of the conduct and failed to take prompt
and appropriate corrective action.” Rock-Tenn, 813 F.3d at 307. Carter has made not such
showing and, in her response, does not attempt to do so. Crucially, TMMK thoroughly
investigated each and every allegation that Carter made, even those to which Carter did not
take personal offense.13 And where they could substantiate the comments, corrective action
was taken.14 Carter does not contravene TMMK’s assertion that it fully investigated, and took
“only after she had made inappropriate comments to somebody else” (Steele
Dep., p. 21).
[Record No. 32-1 at 8 n.11]
TMMK fully summarizes its investigation, and notes corrective action for substantiated
comments. [Record No. 32-1 at 7-12]
For example, a variable workforce employee received a “Final Warning” for recounting
a racially-motivated comment made on television by a UK basketball player. [Record No. 321 at 11] A TMMK team member received a “Documented Coaching” for a racially-motivated
joke. [Id. at 12] Dustin Allen, though he denied calling Carter “Raggedy Ann,” was reminded
that “such comments, if made, would be considered by Toyota to be inappropriate in the
workplace, and could subject him to corrective action, up to and including termination.” [Id.
at 12 n.17]
corrective action where necessary. Instead, Carter points out that some of the harassing
comments were made by supervisor.
While Carter does not specify, the only supervisor identified is Sean Cooley. Cooley’s
alleged offensive acts are as follows. First, in response to another employee’s “hear you roar”
comment, Cooley “told Carter not be so sensitive and ‘that’s just how guys are.’” [Record No.
4 at ¶25; Record No. 36 at 2-3 (citing Carter deposition at 73)] Second, Cooley suggested to
Carter that she “toughen up,” and “stop being the victim.” [Record No. 36 at 3 (citing Carter
deposition at 82)] Finally, Cooley “concocted a plan to get Carter in trouble by telling one of
[her] co-worker’s to yell ‘stop harassing me’ to Carter.” [Record No. 36 at 3 (citing Carter
deposition at 155-56)]
Cooley admitted that he suggested to Carter that she should “toughen up.” However,
he explained that he was trying to help Carter, because, like his two daughters, he did not want
them to feel like victims, but to take charge. [Record No. 32-5 at 6 (Cooley deposition at 55)]
Cooley was reprimanded by TMMK for making this comment, and later apologized to Carter.15
According to the notes of H.R. Employee Tiffany Lance:
I told [Cooley] at that time that I would use this time to coach him on the fact
that making a comment like that to a female is insinuating that she IS in fact a
victim and that she IS in fact weak in some way. He again stated that he was
only trying to help her and that he knows she’s had some issues in her personal
life and he only wanted to help. I told him that it was not his responsibility to
help her in her personal life or to give her life advice. He is not her father, her
husband, her brother … He is her supervisor at work and that he should not cross
the line of professionalism when speaking to or dealing with any of his TM’s. I
reiterated to him that saying what he said to a female can be taken as offensive
and negative and that he should never say that to another female TM or to any
TM for that matter.
- 27 -
These alleged comments by Cooley are hardly severe or pervasive enough to be actionable
under Title VII or the KCRA.
Moreover, because Carter does not allege a tangible
employment action that resulted, and given Carter’s recorded satisfaction with TMMK’s
resolution of Cooley’s statements of this nature, TMMK would be entitled to an affirmative
Carter’s third allegation that Cooley attempted to get her in trouble is certainly
troubling. Unfortunately, like many of her other claims, Carter provides no competent
evidence to corroborate this assertion. The allegation again involves Amy Simon. [See Record
No. 36-1 at 14 (Carter deposition at 155-56).] Simon, a Caucasian female, allegedly told Carter
that she was “made to treat [her poorly].” [Id.] Carter provides no deposition testimony,
affidavit, or other evidence from Simon or anyone to corroborate this allegation. Here again,
Carter’s own testimony is not sufficient to support the claim.
While Carter make various other allegations against her team leader Mike Johnson, she
does not actually argue that Johnson was a “supervisor” for Title VII purposes, and the record
does not otherwise support such a conclusion.16 As an initial matter, team leaders are not
I went back to Tamika a few weeks later and asked her if she was doing okay
and to let her know that I addressed the situation with Sean. Tamika stated to
me that Sean did apologize to her and that things were going well. I told her to
let me know if she has any more issues.
[Record No. 32-2 at 132-33]
Carter alleges that “[a]fter [she] made complaints to Toyota’s Human Resources
Department and filed a Charge of Discrimination, her supervisors and co-workers began to
refer to Carter as the ‘HR queen.’” [Record No. 36 at 3 (citing Carter deposition at 113-14)].
“Carter’s supervisors and coworkers would refer to her as the “HR queen” and would warn
new employees to be careful what they say around Carter as she will go to the Human
Resources department.” [Record No. 36 at 8] Carter’s own statements, including her
- 28 -
classified as supervisors by TMMK.17 Further, under prevailing caselaw, “an employee is a
‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by
the employer to take tangible employment actions against the victim[.]” Vance v. Ball State
Univ., 133 S.Ct. 2434, 2439 (2013); Shazor v. Prof’l Transit Mgmt., Ltd., 744 F.3d 948, 956
(6th Cir. 2014) (applying Vance standard). More specifically,
an employer may be vicariously liable for an employee’s unlawful harassment
only when the employer has empowered that employee to take tangible
employment actions against the victim, i.e., to effect a “significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change
Vance, 133 S.Ct. at 2443 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
There is nothing in the record to suggest that Mike Johnson was empowered to take tangible
employment actions against Carter. Cooley, rather than Johnson, was responsible for Carter’s
performance evaluations, was tasked with assigning offline training, and was responsible for
assigning overtime. Likewise Cooley, rather than Johnson, was responsible for providing a
recommendation to become a team leader. Team leaders are tasked with supporting line
workers, such as providing restroom breaks when needed. Nothing in the record suggests that
deposition and TMMK’s internal H.R. transcript, suggest only that Bruce Steele and Mike
Johnson refereed to Carter as an “H.R. Queen.” [Record No. 32-3 at 135 (“HR: So, who’s
referred to you as the HR Queen? TAMIKA: Bruce and Mike”); Record No. 36-1 at 8 (Carter
deposition at 114)] Therefore, there is no recorded allegation that Sean Cooley called Carter
an “H.R. queen,” but Carter’s pleadings appear to presume that Johnson is a supervisor.
TMMK made this point clear during the January 9, 2017, hearing. See also, e.g.,
TMMK Team Member Handbook [Record No. 32-3 at 54-120 (using “Group Leader” and
“Supervisor” interchangeably); Id. at 62 (listing “Team Leader” as separate and beneath
“Group Leader/Supervisor”)]; TMMK Evaluation Period Forms [Record No. 32-3 at 121-31
(using “Group Leader” and “Supervisor” interchangeably)].
- 29 -
they may effect a significant change in a team member’s employment status, the least of which
would be to reassign a team members with significantly different responsibilities. Therefore,
TMMK cannot be vicariously liable for the actions of Mike Johnson.
But even if Johnson was a supervisor, Carter has not shown a tangible employment
action based upon her being called an “H.R. queen.” Therefore, TMMK would be entitled to
an affirmative defense because it has taken reasonable precautions to prevent such harassment,
and Carter has put forth no evidence showing that the comments persisted despite her taking
advantage of the preventive or corrective opportunities provided by TMMK. While the record
reflects that Carter reported the comments to TMMK [see Record No. 32-3 at 135], TMMK
investigated the complaint [see Record No. 32-1 at 10] and Carter has not further
alleged that the comments persisted past the date of the complaint.
Carter’s denial of offline training, denial of overtime, disproportionate defect
countermeasure forms, and disproportionate parts loading claims could all count for purposes
of a hostile work environment. However, given the above-discussed lack of evidence to
support Carter’s claim that these actions, if done at all, were based on Carter’s protected status,
they necessarily fail for a hostile work environment claim.
Finally, Carter alleges in her deposition that she decided not to go forward with team
leader training because she was unable to earn her coworkers’ respect. This argument is
compelling. But to be actionable, it must be the result of prohibited conduct—harassment
based on race or sex. Taken as a whole, the record supports that Carter had trouble getting
along with her coworkers. But it does not show that severe or pervasive race- or sex-based
harassment was to blame.18
The grant of summary judgment on Carter’s hostile work environment claim is
supported by Barrett v. Whirlpool Corp., 556 F.3d 502 (6th Cir. 2009). Barrett involved
allegations from Caucasian individuals that they were subjected to a hostile work environment
and were retaliated against for their friendship with, and advocacy on behalf, their AfricanAmerican colleagues. The Court addressed three specific allegations. First, Barrett had been
called a “bitch” and was warned to “mind [her] own business.” 556 F.3d at 517. The Court
found that this was direct harassment, because it was based on Barrett’s advocacy. Id. Second,
Barrett alleged that her supervisor “directed desirable work away from [her] because of [her]
friendship with [an African-American colleague].” Id. The Court noted the seriousness of this
allegation, but found no evidence to support it, “other than [Barrett’s] own impression that [her
supervisor] directed desirable work away from her.” Id. Finally, Barrett claimed that she
“received the ‘cold shoulder’ from three Caucasian employees when she worked on the
assembly line and that her group leader would ignore her requests for materials she needed in
the course of her work because she was friendly with African-American employees.” Id. The
Court found that, while this conduct could contribute to a finding of a hostile work
environment, “it is not, on its own, objectively severe conduct.” Id. The Court concluded that
the offensive comment, the perceived diversion of desirable work, and the receipt of the “cold
shoulder” from a few co-workers was “insufficient evidence of severe or pervasive harassment
TMMK made clear to Carter that if she wanted to have a meaningful relationship with
coworkers, she needed to try and fit in. [Record No. 32-3 at 140 (H.R. Report of Tiffany
Lance)] In like manner, Title VII is not meant to be a general code of civility.
- 31 -
to allow a reasonable jury to find that Barrett was subjected to a hostile work environment.”
Id. at 518.
The Barrett Court affirmed the grant of summary judgment against Barrett and her coplaintiff Melton, for whom the Court also found insufficient evidence to support a hostile work
environment claim. 556 F.3d at 520. However, the Court reversed and remanded the grant of
summary judgment against their co-plaintiff Nickens. Id. Unlike the others, Nickens was
physically threatened for reporting racist language. Id. at 519. Moreover, her co-worker as
well as her supervisor “frequently made racially derogatory comments criticizing her
association with [an African-American co-worker].” Id. When Nickens complained to her
supervisor about these comments, he refused to take any action. Id. Finally, Nickens alleged
two instances in which a supervisor and co-worker “attempted to prevent her from applying
for job advancements because of their disapproval of her friendship with [an African-American
co-worker].” Id. The Court found that Nickens alleged facts sufficient for a finding of liability
because she “reported nearly all of the relevant incidents involving co-worker harassment to
one of two supervisors . . . and they failed to take corrective action.” Id. at 519-20. Further,
Nickens alleged that both of the supervisors harassed her directly. Id.
Barrett’s reasoning is highly informative here. Unfounded speculation about being
assigned to less favorable tasks, coupled with “cold” treatment by co-workers and nonpervasive or severe comments are not enough. However, when physically threatened, or with
sufficient evidence that supervisors failed to take action to prevent frequent harassment,
partook in the frequent harassment themselves, and attempted to prevent a job advancement
because of the employee’s engaging in protected conduct, such allegations are sufficient for a
finding in the plaintiff’s favor and must be sent to the jury.
The only similarity between Carter and Nickens is Carter’s allegation that a supervisor
was responsible for some of the derogatory comments against her.
Nickens’ supervisor made racially derogatory comments to her, Carter’s supervisor merely
told her to “toughen up.” “Toughen up,” together with the suggestion that Cooley encouraged
another employee to tell Carter “to stop harassing her,” are not severe or pervasive enough for
a finding of a hostile workplace, especially on the record that shows Cooley recommended
Carter for a team leader role, reminded her to attend orientation,19 and in which Carter admitted
that all was well with her relationship with Cooley.20 Moreover, the record is very clear that
Carter’s employer did not tolerate objectively offensive comments, and quickly and routinely
investigated and took corrective action as necessary. “[A]n employer can escape liability
(from actionable discrimination) only if it took reasonable care to prevent and correct any
sexually harassing behavior.” Williams v. Gen. Motors Corp., 187 F.3d 553, 561 (6th Cir.
1999). TMMK documents its reasonable care, and Carter has no showing to the contrary.
“It is uncontroverted Cooley actually encouraged Carter to pursue a Team Leader
position. He completed the necessary paperwork for her to proceed in the process, advised her
of the timing of the next Team Leader orientation, and thereafter reminded her to attend the
orientation.” [Record No. 32-1 at 14]
“I went back to Tamika a few weeks later and asked her if she was doing okay and to
let her know that I addressed the situation with Sean. Tamika stated to me that Sean did
apologize to her and that things were going well. I told her to let me know if she has any more
issues.” [Record No. 32-2 at 1333 (H.R. Report of Tiffany Lance)]
In conclusion, while the Court assumes that Carter has met the first, second, and third
prongs of the hostile work environment test (protected class, unwelcome harassment, based on
protected status), Carter has failed to show the fourth and fifth prongs. The comments alleged
are not sufficiently extreme to constitute a changes in the terms and conditions of employment.
And even if so, TMMK has undertaken reasonable steps to prevent and correct harassing
conduct. Carter does not allege that TMMK was complicit, and Carter’s supervisor’s actions
(coupled with TMMK’s response) do not create liability.
“To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) she
engaged in activity protected by Title VII; (2) the defendant knew of her exercise of her
protected rights; (3) the defendant subsequently took an adverse employment action against
the plaintiff or subjected the plaintiff to severe or pervasive retaliatory harassment; and (4)
there was a causal connection between the plaintiff’s protected activity and the adverse
employment action.” Barrett v. Whirlpool Corp., 556 F.3d 502, 516 (6th Cir. 2009).
“A plaintiff’s burden of establishing a materially adverse employment action is less
onerous in the retaliation context than in the anti-discrimination context.” Michael v.
Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595-96 (6th Cir. 2007) (citing Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). “A materially adverse employment action
in the retaliation context consists of any action that well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Id.
Importantly, “[t]he antiretaliation provision protects an individual not from all
retaliation, but from retaliation that produces an injury or harm.” 548 U.S. at 68. “[A] plaintiff
must show that a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have ‘dissuaded a reasonable worker from
making or supporting a charge of discrimination.’” Id. (quoting Rochon v. Gonzales, 438 F.3d
1211, 1219 (D.C. Cir. 2006) (quotation marks omitted)). For example, “[a] supervisor’s
refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to
retaliate by excluding an employee from a weekly training lunch that contributes significantly
to the employee’s professional advancement might well deter a reasonable employee from
complaining about discrimination. Burlington Northern, 548 U.S. at 69 (emphasis added).
“[T]he standard is tied to the challenged retaliatory act, not the underlying conduct that forms
the basis of the Title VII complaint. By focusing on the materiality of the challenged action
and the perspective of a reasonable person in the plaintiff's position, we believe this standard
will screen out trivial conduct while effectively capturing those acts that are likely to dissuade
employees from complaining or assisting in complaints about discrimination.” Id. at 69-70
Finally, plaintiffs must show a causal relationship between their protected activity and
the adverse actions. “In determining whether there is a causal relationship between a plaintiff’s
protected activity and an allegedly retaliatory act, courts may consider whether the employer
treated the plaintiff differently from similarly situated individuals and whether there is a
temporal connection between the protected activity and the retaliatory action.” Barrett, 556
F.3d at 516-17 (internal citations omitted). The employer may, in response to a charge of
retaliation by a supervisor, “assert the same affirmative defense that is available to hostile work
environment claims.” 21 Id.
The plaintiff repeats her previous allegations of disparate treatment and hostile work
environment wholly and summarily as the basis for her retaliation claim. [See Record No. 36
at 10-11] She complains of being denied offline training, being denied overtime, and being
required to perform more defect countermeasure forms. These claims, if substantiated (and
shown to have a temporal connection), would likely meet the retaliation standard because the
acts are meaningful enough “to dissuade employees from complaining or assisting in
complaints about discrimination.” However, as previously discussed, Carter has put forth no
competent evidence to support those claims.22 Retaliation based on complaints to Human
Resources are alone actionable, but it is notable that the only specifically allegation to occur
after the EEOC charge was filed is a single overtime incident (one might expect more
retaliation after a formal charge is filed).
Carter has not shown that she was wrongly denied offline training, or that it was
temporally-connected to her complaints to H.R. or to the EEOC. The record establishes that
Carter did receive offline training, just not the first time she requested it. [See Record No. 361 at 17 (Carter deposition at 194)] Moreover, TMMK provided a good reason why she was
The burden-shifting framework applies to retaliation claims. See Morris v. Oldham
Cty. Fiscal Court, 201 F.3d 784, 792-93 (6th Cir. 2000).
Whether the parts-loading assignment would be material for retaliation purposes is an
open question, but again, it is unsupported by any evidence. Carter’s allegation that her hiring
packet was held cannot be considered retaliation because there is no evidence of complaints
made prior to Carter being hired by TMMK.
initially denied it, and Carter has not suggested that the reason is pretextual. [Record No. 362 at 2 (Cooley deposition at 27-28)]
Carter has provided no competent proof showing that she was improperly denied
overtime, much less in retaliation for protected activity. Carter alleges that on October 20,
2015, Cooley advertised that 5S cleaning was available, but left before Carter could get more
information from him. [Record No. 36 at 6] As discussed above, Carter does not allege that
Cooley intentionally avoided her or had some duty to discuss the overtime opportunity with
her specifically before he left for the day. It is not clear that Carter could not check with
another supervisor to determine where the work was to be completed, or could not have
contacted Cooley despite his departure.
Without some evidence to support that other
employees actually worked overtime on this occasion when Carter did not (which should be
readily available through discovery), there is insufficient evidence for a jury finding.
Regarding defect countermeasure forms, there is testimony to suggest that more CM
forms may entitle someone to less offline training, and so impact ones potential for job
advancement. There is little doubt that exacerbating a single employee’s flaws, to the potential
detriment of job advancement, may count as retaliation. But there is not a shred of evidence
that Carter was actually made to fill out more CM forms. The specific incident that Carter
references involves both her and Amy Simon, a Caucasian female, being “singled-out” for
defect CM forms. Because there is no evidence that Amy Simon made complaints to H.R.,
her receiving the identical treatment as Carter undercuts this claim of retaliation. Carter
provides no other specific instances of unfair defect CM form treatment.
Having disposed of the non-verbal employment actions alleged as retaliation, what
remain are the “H.R. queen” comments, warnings to new employees to be careful around
Carter, and Cooley’s alleged encouragement to Amy Simon to yell “stop harassing me.”23
Carter alleges that after she “made complaints to Toyota’s Human Resources
Department and filed a Charge of Discrimination, her supervisors and co-workers began to
refer to Carter as the ‘HR queen.’” [Record No. 36 at 3 (citing Carter deposition at 113-14)].
Calling someone an “H.R. queen” is undoubtedly of the nature of retaliation—it is in response
to the individual’s complaints to the human resources department.
actionable on its own.
It is not, however,
Complaints that form the basis for retaliation must have been
“reasonable and based on a good-faith belief that [TMMK] was acting in violation of Title
VII.” Barrett, 556 F.3d at 516. For example, if Carter were being mocked as an “H.R. queen”
for complaining to the Human Resources department about non-actionable petty slights, such
as someone else bringing in macaroni and cheese to the employee potluck, that retaliation
would not be actionable because it was not in response to protected activity. It is not clear
what actions, protected or not, supposedly led Carter to be called an “H.R. queen.” Therefore,
the Court will not question the good-faith nature of Carter’s complaints. Instead, this claim
While Carter argues that she was subjected to retaliation by “adverse employment
action when she was consistently subjected to unwelcome harassment on the basis of her race
and gender” she does not elaborate which of the alleged instances of race and gender
discrimination are temporally connected to her complaints to H.R. or her filing of the charge
with the EEOC. Retaliation claims have a lower standard than the substantive offense, but the
alleged comments by non-supervisors need not be re-addressed in detail because the record is
clear that TMMK fully investigated those comments and took disciplinary action where
necessary. Comments by co-workers not tolerated by an employer are not actionable
retaliation. Retaliation requires an adverse action of the employer, or at least employer
inaction in the face of employee misconduct.
fails because TMMK did not encourage, tolerate, or permit these comments, and the comments
were not made by a supervisor (assuming they were in fact made).
Next, Carter’s complaint that “co-workers would warn current and new employees to
not say anything to her or around her because she would go to the Human Resources
department” is not sufficiently severe to amount to retaliation. [Record No. 36 at 3 (citing
Carter deposition at 156)] As the Supreme Court has made clear (while simultaneously
lowering the bar for retaliation claims), “[a]n employee’s decision to report discriminatory
behavior cannot immunize that employee from those petty slights or minor annoyances that
often take place at work and that all employees experience.” Burlington Northern, 548 U.S.
at 68. Receiving the “cold shoulder” is the likely result of such actions, and it is not sufficient
for retaliation. See Barrett, 556 F.3d at 518. Again, it is not alleged that TMMK tolerated
these action by Carter’s co-workers.
Finally, there is nothing in the record to support the claim that Cooley “concocted a
plan to get Carter in trouble by telling one of Carter’s co-worker’s to yell ‘stop harassing me’
to Carter.” [Record No. 36 at 3 (citing Carter deposition at 155-56)] Carter presents no
affidavit or deposition from Amy Simon to support that she was told to act this way, and
TMMK fully investigated this incident (which allegedly happened in 2013) and found it
unsubstantiated. [Record No. 32-3 at 143-46]
Assuming that Carter’s complaints to the Human Resources department and the EEOC
were made in good faith, TMMK is not liable for the supposed retaliation. TMMK has shown
reasonable steps to prevent such comments and has disciplined employees for making them.
Carter does not allege that TMMK has permitted her co-workers to persist in calling her an
“H.R. queen,” or any of the other listed comments that Carter found offensive. Corrective
action has been taken against her supervisor for his “toughen-up” comment, and against other
co-workers for violating TMMK’s policies. While Carter is unhappy with the actions of her
co-workers, she has not shown a failure of her employer to act appropriately in response.
Because Carter has not shown that TMMK took adverse employment action against her, or
subjected her to severe or pervasive retaliatory harassment based on her protected activity,
there is no genuine issue for a jury.
Taken as a whole and in context, petty insults or slights may be material where linked
to more pervasive or substantial acts. See, e.g., Williams v. CSX Transp. Co., 643 F.3d 502,
514-16 (6th Cir. 2011) (White, J., dissenting) (the plaintiff’s demeaning job assignments (such
as cleaning feces off of a wall) while alone not actionable, were in the dissent’s view, material
when taken together with the highly offensive comments); William v. General Motors, 187
F.3d 553, 562 (6th Cir. 1999) (it is improper to “divide and categorize the reported
incidents” which “divorc[es] them from their context and depriv[es] them of their full force”).
But Carter presents no evidence of “more substantial acts,” and TMMK took reasonable care
to both prevent and correct offensive comments (no matter how petty) and to ensure proper
enactment of its training, defect countermeasure, and overtime procedures.
The record reflects Carter’s frustration with her workplace. Carter felt slighted and
perhaps grew frustrated with her inability to garner the respect of her co-workers. [See, e.g.,
Record No. 32-3 at 140 (H.R. Report of Tiffany Lance)] But Title VII and the KCRA are not
meant to police general workplace civility. The law is meant to stamp out discrimination and
Carter provides insufficient evidence to hold TMMK liable for either.
Accordingly, it is hereby
ORDERED as follows:
Defendant Toyota Motor Manufacturing, Kentucky, Inc.’s Motion for Summary
Judgment [Record No. 32] is GRANTED.
A separate judgment will issue.
This 15th day of May, 2017.
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