Marshall v. Super Service, LLC
MEMORANDUM OPINION & ORDER: 1. Defendant Super Service, LLC's motion for summary judgment [Record No. 31 ] is GRANTED. 2. Plaintiff Joy Marshall's motion for summary judgment [Record No. 35 ] is DENIED. 3. Defendant Super Service, LLC 039;s Corrected Motion to Strike Plaintiff's Expert [Record No. 59 ] is DENIED, as moot. 4. All claims and causes of action asserted in this proceeding by Plaintiff Joy Marshall against Defendant Super Service, LLC, are DISMISSED, with prejudice. 5. This action is DISMISSED, with prejudice, and STRICKEN from the Court's docket. 6. The trial of this matter, previously scheduled for April 19, 2016, is CANCELED. Signed by Judge Danny C. Reeves on 4/6/2016.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SUPER SERVICE, LLC,
Civil Action No. 6: 14-229-DCR
*** *** *** ***
This matter is pending for consideration of cross-motions for summary judgment filed
by Plaintiff Joy Marshall and Defendant Super Service, LLC (“Super Service”). [Record
Nos. 31; 35] The plaintiff asserts claims of sex-based discrimination, retaliation, and hostile
work environment against the defendant under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000, et seq., and the Kentucky Civil Rights Act, Ky. Rev. Stat. § 344.010, et seq.
[Record No. 1-4]1 For the reasons outlined below, Super Service’s motion for summary
judgment will be granted and Marshall’s motion for summary judgment will be denied.
Super Services, LLC is a trucking corporation with its headquarters located in Grand
Rapids, Michigan and terminals located in several states. [Record No. 1-4, ¶ 2] Prior to
April 2011, three separate “sister” companies comprised the main company: Gainey
Although discussed during oral arguments on the pending motions, further review of
Marshall’s Complaint confirms that she has not asserted a claim for intentional infliction of
emotional distress under Kentucky law.
Transportation located in Michigan, Lester Coggins located in Florida, and Super Service,
Inc. located in Kentucky. [Record Nos. 34-1, pp. 2, 8; 31-25, p. 52] In 2010, Marshall
worked as a night dispatcher for the terminal located in Okahumka, Florida. [Record No. 3419, pp. 6, 74] Around September 2010, upon learning that her particular terminal was
closing, the plaintiff contacted John Kidd, Director of Operations for client Vascor, about a
dispatch position at the terminal located in Somerset, Kentucky. [Record No. 31-25, p. 54]
At the time, Marshall was pregnant and feared losing her maternity leave and healthcare
benefits. [Id.] In December 2010, Marshall began working as a night dispatcher at the
Somerset terminal. [Id., p. 70; Record No. 1-4, ¶ 8] Her moving expenses were not covered,
and she took a $2,600.00 reduction in pay as a result of the transfer. [Record Nos. 31-25, p.
70; 1-4, ¶ 17] Around the same time, three male employees with positions different from
Marshall’s were asked to transfer to the facility located in Ellenwood, Georgia. [Record No.
31-19, pp. 7374] Their pay was not reduced, and they also received reimbursement for
moving expenses. [Record No. 34-1, p. 4]
As a night dispatcher, Marshall reported to Kim Caldwell. [Record No. 31-25, p.
118] However, in July 2011, Super Services moved the night dispatch position to the Grand
Rapids facility. As a result, the plaintiff became a breakdown coordinator, reporting to Ivan
Randall. [Id.; Record Nos. 34-4, p. 10; 34-7, p. 30] Randall reported to Fran Kephart, the
head of the maintenance department.
[Record Nos. 31-30, p. 65; 34-1, p. 23]
breakdown coordinators handled only mechanical and maintenance issues, but with respect
to the customer Vascor, the plaintiff continued to address both breakdown and dispatch
issues.2 [See, e.g., Record Nos. 31-9, p. 2; 34-1, p. 34.]
On April 20, 2013, Marshall contacted Kidd by phone to express her concern about
working alone with Kevin Taylor, who had allegedly recently assaulted his wife and checked
into a mental facility. [Record No. 34-19, pp. 2526] Taylor also had a history of assault
charges involving female victims. [Record No. 34-7, p. 39] Kidd stated that he would look
into the situation and e-mailed Marshall the next day when she was at work with Taylor,
asking if she was “okay.” [Record Nos. 34-19, p. 27; 31-5, p. 2] Marhall responded that she
was. [Id.] She experienced no problems with Taylor that day. [Record No. 34-19, p. 27]
On May 2, 2013, Randall e-mailed Marshall about reporting to work at 5:00 p.m. and
leaving at 2:00 a.m. on Mondays, Thursdays, and Fridays, even though she was originally
expected to arrive at 6:00 p.m. [Record Nos. 31-6; 34-19, p. 64] Marshall responded with
[Record No. 31-6]
Believing that the schedule change would begin the
following week and, consistent with Super Service’s usual practice, Marshall arrived to work
at 6:00 p.m. the following day. [Record No. 34-19, p. 65] As a result of her late arrival,
Randall wrote-up Marshall on May 9, 2013. [Record No. 31-7] However, Kephart decided
not to proceed with formal discipline, removing out the write-up. [Record Nos. 31-29, p. 54;
34-5, pp. 13536]
During oral argument on the cross-motions for summary judgment, defense counsel was
uncertain whether Marshall handled Vascor duties while working in Florida. However,
Marshall’s brief, as well as the record, reflect that she handled Vascor dispatch in Florida, as
well. [Record Nos. 34, p. 6; 34-1, p. 34]
On May 3, 2013, Marshall sent Kephart an e-mail regarding whether Taylor would be
allowed to return to work while on work release, but Kephart responded that he did not know
whether Taylor was in a work release program. [Record No. 31-8] Though Taylor was
permitted to work on May 4th with Marshall, Super Services subsequently accommodated
Marshall’s requests, having Taylor not work with her on May 5th. [Record Nos. 34-1, pp.
4749; 34-19, p. 50] However, the defendant allowed Taylor to return to work on May 9th
after the charges were dropped. [Record Nos. 31-10; 34-1, pp. 4748; 34-4, p. 24] That day,
Marshall sent an e-mail to Kidd asking for clarification of her Vascor duties and informing
him of her conversation with Kephart concerning Taylor. [Record No. 31-9] She also
acknowledged that she was aware that she was to report to Randall, as her supervisor. [Id.]
Subsequently, on May 10, 2013, Marshall met with Kephart to inform him that Taylor
had used vulgar language with a vendor and had acted erratically. [Record No. 34-6, p. 111]
However, Kephart stated that her complaint was “hearsay.” [Record No. 31-10] As a result,
Marshall e-mailed Randall and Caldwell requesting clarification on the Taylor situation and
explaining why her complaint was not hearsay. [Id.]
On May 12, 2013, Marshall called Peter Hussey, the night breakdown coordinator, at
1:09 a.m. to inform him that she was sick. [Record No. 31-11] Hussey communicated her
message to Randall.
Because Marshall failed to follow Super Service’s call-in
procedures, Kephart conducted a counseling session with her. [Id.; Record No. 31-2, p. 7]
Sherry Daughetee attended this session.
[Record No. 35-13]
Kephart explained that
Marshall was being disciplined for failing to call her manager or immediate supervisor. He
also informed Marshall that her skirt length violated company policy. [Record Nos. 31-2, p.
10; 31-25, pp. 157, 164; 31-12] Upset with the write-up, Marshall e-mailed John Kidd and
Steve Maat, Director of Human Resources, on May 14, 2013, disputing the call-in procedure.
[Record No. 31-13] In addition, Marshall claimed that when she made a comment about
having to work alone when Taylor was gone, Kephart asked, “is it so hard to pick up a phone
for four hours?” [Id.] Marshall termed the e-mail a “formal complaint” and described
Kephart’s conduct as “discriminatory.” [Id.] Maat responded that day, confirming that
Marshall should report to Randall and that Taylor did not pose a safety risk at the company.
[Record No. 31-14]
Two days later, Marshall again e-mailed Maat, explaining her reason for calling
Hussey instead of Randall to inform him that she was sick on May 12th. [Record No. 31-15]
She also wrote:
[w]ell, regarding my complaint of discrimination from Mr. Fran Kephart. Fran
has usurped the power of the position Kim holds and in addition to the recent
disciplinary action taken against me, unfortunately, it appears Fran has an
issue addressing and dealing appropriately with female employees. If a female
is to sit in the office while I have a write up, it would be Kim as she is
supposed to be my immediate supervisor not the payroll officer . . . .
Regarding any claims from Fran that my dress code was a violation in any way
is also considered hearsay at this point. . . . Again, I find that grossly offensive
that Fran would pay that much attention ‘in inches’ to my skirt, but not have
the professionalism to release a memo for a chain of command  which he is
trying to enforce. In doing that he is alienating female supervisor Kim
[Id.] On May 17, 2013, Maat reiterated that Randall was Marshall’s supervisor and that, in
any event, Hussey certainly was not her supervisor. [Record No. 31-16, p. 2] He also stated,
“[i]f you are claiming Fran discriminates against women, please describe the discriminatory
incidents in as much detail as possible so I can investigate.” [Id.] But Marshall did not
[Record Nos. 31-25, p. 177; 34-1, p. 53]
Maat questioned Caldwell about
Kephart’s conduct, and she reported no problems with him. [Record No. 31-28, pp. 5253]
Marshall chose to work the night shift in December 2013, after Super Service altered
the breakdown/Vascor crew’s schedule.3 [Record Nos. 31-17; 31-25, p. 104; 31-26, 187]
On January 10, 2014, between 3:00 and 4:00 a.m., Marshall became aware that one of the
Vascor teams was involved in an accident. [Record No. 31-26, p. 210] She concedes that it
was her duty to report the accident to the Safety Department (“Safety”). [Record Nos. 31-28,
p. 60; 31-31, p. 24; 34, p. 16; 34-1, p. 17] Marshall knew that Safety needed to know as soon
as possible about such accidents, although she disputes whether she was the only person with
the responsibility to notify Safety on the night in question. [Record No. 31-26, pp. 193200]
Marshall had notified Safety in the past about accidents. [Record No. 31-19, p. 14]
Soon after learning of the incident, Marshall called Roger Beachy to notify him of the
event. [Record No. 31-31, p. 22] Thereafter, at 5:23 a.m., Marshall notified John Kidd,
Roger Beachy, Mark Collins, and Guy Holden, none of whom were in Safety, of the accident
via e-mail, writing that, “[s]afety and Vascor have not been notified as of yet.” [Record No.
31-18] She claims that Beachy informed her not to call anyone else about the accident,
although he contests her assertion. [Record Nos. 31-26, p. 221; 31-31, p. 24]
When Safety Manager Chuck Creekmore entered the facility four hours after
Marshall received notification of the accident, Kidd discovered that the accident had not been
reported to Safety. [Record No. 31-30, p. 74] As a result, Kidd instructed Beachy to send
With the shift-change, Marshall worked six hours on Wednesdays. On Thursdays,
Fridays, and Saturdays, she worked from 6:00 p.m. to 6:00 a.m. [Record No. 34-4, p. 67]
the information to Creekmore. [Id., p. 75] At the behest of Super Service CEO Dan Strong,
Maat investigated what had happened, speaking with Creekmore and Kephart. [Record No.
31-28, p. 59] He discovered that Marshall had contacted Mark Collins during her shift on
January 10, 2014, to have him fill in for her because she was not feeling well. [Record No.
34-18, p. 15] Collins arrived around 5:35 a.m., and Marshall told him that Beachy was
handling the accident. [Id.] Determining that Marshall was responsible for the failure to
contact Safety, Strong, Maat, Kephart, and COO Roger Waddle concluded that Marshall
should be terminated. [Record Nos. 34-1, p. 29; 31-20]
On January 13, 2014, Kephart and Kidd met with Marshall to inform her that she was
being terminated for failing to report the accident to Safety. [Record No. 34-7, p. 76] On
March 7, 2014, Marshall filed a charge against Super Service with the Equal Employment
Opportunity Commission (“EEOC”). [Record No. 31-21] In the charge, the plaintiff made
claims of sex discrimination and retaliation. [Id.] The EEOC dismissed the charge on
August 22, 2014. [Record No. 31-22]
The present action was filed on November 13, 2014 in the Pulaski Circuit Court in
Kentucky. [Record No. 1-4] In her Complaint, Marshall alleges claims of discrimination,
retaliation, and hostile work environment under both Title VII and the Kentucky Civil Rights
Act (“KCRA”). [Id., ¶ 3] The defendant removed the action on December 11, 2014.
[Record No. 1] After the close of discovery, Super Service filed a motion for summary
judgment on October 15, 2015, requesting oral argument. [Record No. 31] On November 5,
2015, Marshall filed her response, along with her motion for summary judgment.4 [Record
Nos. 34; 35] The defendant has replied [Record Nos. 39; 40], and oral argument was held on
April 1, 2016. [See Record No. 65.]
Summary judgment is appropriate if there are no genuine disputes regarding any
material facts and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Chao v. Hall Holding Co.,
285 F.3d 415, 424 (6th Cir. 2002). A dispute over a material fact is not “genuine” unless a
reasonable jury could return a verdict for the nonmoving party. That is, the determination
must be “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.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986); see Harrison v. Ash, 539 F.3d 510, 516
(6th Cir. 2008).
In deciding whether to grant summary judgment, the Court views all the facts and
inferences drawn from the evidence in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).5
Marshall’s motion for summary judgment was untimely. [See Record No. 10, ¶ 8.] The
parties requested an extension for filing dispositive motions, which the Court denied. [Record
Nos. 28; 29] Super Service also requested reconsideration, but the Court denied that, as well.
[Record Nos. 30; 32] However, because the same issues appear in both motions for summary
judgment, the Court has considered the merits of the plaintiff’s motion.
Marshall cites to Rule 56 of the Kentucky Rules of Civil Procedure [Record No. 34, p.
19], but the summary judgment standard under the Federal Rules of Civil Procedure applies here.
See Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. 2001).
Under Title VII of the Civil Rights Act of 1964 and Chapter 344 of the Kentucky
Civil Rights Act, it is unlawful for an employer “to discharge any individual, or otherwise 
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1);
see Ky. Rev. Stat. § 344.040(1)(a).6 “[A]n unlawful employment practice is established
when the complaining party demonstrates that . . . sex . . . was a motivating factor for any
employment practice, even though other factors also motivated the practice.” 42 U.S.C. §
2000e-2(m). A plaintiff may establish a claim under Title VII or the KCRA by offering
either direct or circumstantial evidence of discrimination. Bartlett v. Gates, 421 F. App’x
485, 487 (6th Cir. 2010).
“[D]irect evidence is that evidence which, if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor in the employer’s actions.” White v.
Columbus Metro. Housing Auth., 429 F.3d 232, 238 (6th Cir. 2005) (quoting Jacklyn v.
Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). If a
plaintiff produces “credible direct evidence, the burden shifts to the employer to show that it
The KCRA’s discrimination provisions “track  federal law and should be interpreted
consonant with federal interpretation.” Gragg v. Somerset Technical College, 373 F.3d 763, 767
n.1 (6th Cir. 2004) (citing Meyers v. Chapman Printing Co., 840 S.W.2d 814 (Ky. 1992)).
Accordingly, the Court will, for the most part, analyze these claims simultaneously. However,
the KCRA does not have a provision mirroring 42 U.S.C. § 2000e-2(m). Instead, Kentucky
courts require a plaintiff in a mixed-motive case to show that discriminatory animus was a
“substantial factor” or “contributing or essential factor” in an adverse employment action.
Mendez v. Univ. of Ky. Bd. of Trustees, 357 S.W.3d 534, 541 (Ky. Ct. App. 2011).
would have taken the employment action of which the plaintiff complains even in the
absence of discrimination.” Id.
Marshall argues that she has presented sufficient direct evidence of sex animus to
require that summary judgment be entered in her favor. [Record No. 34, p. 21 n.12] She
points to the facts that: (i) only men were offered transfers from the Florida terminal; (ii) the
men were reimbursed for moving expenses; (iii) the men’s pay remained the same; and (iv)
her pay was not increased when she took on additional duties. [See id.] However, these facts
do not constitute direct evidence of discrimination because they do not require the
conclusion that unlawful discrimination was a motivating factor in Super Service’s
decisionthey merely suggest it. See White, 429 F.3d at 238. There are a myriad of nondiscriminatory explanations why the three particular individuals were offered opportunities
to relocate with expenses paid. Thus, these facts constitute circumstantial evidence of gender
Generally, direct evidence appears in the form of comments made or recorded by the
employer or its agents. See, e.g., White, 429 F.3d at 238. After reviewing the record, the
Court has determined that the only statement remotely related to gender is Kephart’s warning
to Marshall that her skirt did not comply with Super Service’s policies. [Record No. 31-12]
“Isolated and ambiguous comments are insufficient to support a finding of direct
discrimination.” Id. at 239 (citing Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir.
1993)). Courts assess the relevancy of an allegedly discriminatory remark by looking to: (i)
the purpose and content of the statement; (ii) the identity of the speaker and his role in the
adverse employment decision; and (iii) the temporal proximity between the statement and the
adverse employment decision. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
35557 (6th Cir. 1998) (reversing summary judgment where multiple high-level officials
made discriminatory remarks).
Here, Kephart’s statement was both isolated and ambiguous. Marshall does not allege
that he made any other comments related to gender, either directed toward her or others.
Further, the statement was ambiguous because Kephart merely informed Marshall that her
attire needed to conform to the company’s rules, which were outlined in writing. [Record
Nos. 31-2, p. 10; 31-25, p. 164] Marshall does not dispute that her skirt length did not
comply with company policy. [See Record No. 31-15.] As a result, Kephart’s statement
does not suggest discriminatory animus. See Ercegovich, 154 F.3d at 355. While the speaker
of the statement was the person involved in the decision to terminate Marshall, the statement
was made nearly eight months before the decision was made to terminate the plaintiff in
response to a specific incident. [Record Nos. 31-12; 31-20] To the extent Marshall claims
that other disciplinary actions resulted in her termination, it is important to note that the other
disciplinary actions occurred prior to Kephart’s remark. Because Kephart’s comment was
isolated, ambiguous, and not temporally proximate to her discharge, it does not establish that
Marshall was discharged based on an impermissible motive. See id.
If a plaintiff cannot provide direct evidence of improper motive, she may offer
indirect and circumstantial evidence of such a motive under the burden-shifting approach set
out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). However, where the
plaintiff makes a mixed-motive claim of discrimination, the Sixth Circuit has dispensed with
the McDonnell-Douglas approach during the summary judgment phase. White v. Baxter
Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008). Instead, a plaintiff “need only produce
evidence sufficient to convince a jury that: (1) the defendant took an adverse employment
action against the plaintiff,” and (2) sex was a “motivating factor” for the action. Id. Under
this approach, the defendant has an affirmative defense under 42 U.S.C. § 2000e-5(g)(2)(B)
if it can demonstrate that it would have taken the adverse action “in the absence of the
impermissible motivating factor.” If a defendant succeeds in establishing the defense, the
plaintiff is only entitled to declaratory and injunctive relief.
42 U.S.C. § 2000e-
Marshall states in her Complaint that Super Service discriminated against her “in
substantial part because of her sex.” [Record No. 1-4, ¶ 25] In addition, in her response in
opposition to the defendant’s motion for summary judgment, she emphasizes that the Sixth
Circuit has abandoned the McDonnell-Douglas framework in some cases. [Record No. 34,
p. 21] Consequently, she is entitled to the less burdensome, mixed-motive analysis of her
Title VII claims. See Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 64950 (6th Cir.
First, Marshall claims that Super Service failed to offer her an opportunity to transfer
from the Florida terminal based at least, in part, on her gender.7 [Record No. 34, p. 21]
Marshall never actually makes this allegation in her Complaint. [See Record No. 1-4.]
The Court only addresses the claim because it is implicated in the defendant’s explanation
However, she cannot demonstrate that the failure to offer her a transfer constitutes an adverse
employment action. See White, 533 F.3d at 400. An adverse employment action is an action
“that results in a materially adverse change in the terms and conditions of plaintiff’s
employment[,] such as a decrease in wage or salary, a less distinguished title, a material loss
of benefits, [and] significantly diminished material responsibilities.” Love v. Elec. Power
Bd. of Chattanooga, EPB, 392 F. App’x 405, 408 (6th Cir. 2010). Denial of a lateral transfer
is not an adverse employment action. See id.; Freeman v. Potter, 200 F. App’x 439, 443 (6th
Analogously, failing to offer a lateral transfer generally is not an adverse
However, a company’s failure to offer a lateral transfer may constitute an adverse
employment action if the plaintiff loses her position because she was not transferred prior to
a company-wide lay-off. “Where the employer eliminates an employee’s position pursuant
to a reduction in force or a reorganization, or fails to transfer an employee when other
employees benefited from transfers,” the plaintiff makes a prima facie case of discrimination
by demonstrating that: (1) she was a member of a protected class; (2) she was qualified for
the transferee position; (3) she was discharged; and (4) similarly-situated employees outside
the protected class were transferred. Felder v. Nortel Networks Corp., 187 F. App’x 586,
591 (6th Cir. 2006). Because Felder was decided before White, 533 F.3d at 400, this
framework may only inform the second prong of the White analysis. See White, 533 F.3d at
concerning why transferred males did not receive a reduction in their pay and received moving
expenses. [Record No. 31-1] Marshall, however, raised this argument in her response in
opposition to Super Service’s motion for summary judgment. [Record No. 34, p. 5]
393 (reasoning that “such an inquiry sheds light” on the employer’s actual motivation for an
Marshall cannot demonstrate that she was discharged while working at the Florida
terminal. In fact, she cannot even demonstrate that she was not transferred. Although
Marshall argues that Super Service’s failure to offer her a transfer was the adverse
employment action, contrary to the reasoning in Love, 392 F. App’x at 408, and Freeman,
200 F. App’x at 443, this is problematic because she effectively short-circuited Super
Service’s opportunity to offer her such a transfer.
See Felder, 187 F. App’x at 591
(suggesting that failure to offer a transfer is an adverse employment action where the
employee is discharged or fails to receive a transfer). Because Marshall fails to establish an
adverse employment action with respect to the company’s failure to offer her a transfer, she
cannot satisfy the first prong of the White analysis. See White, 533 F.3d at 400.
But even if the Court accepts Marshall’s argument, she has not provided any evidence
that she was qualified for the relevant positionsthe positions that were offered to the three
men. See Felder, 187 F. App’x at 591. On the other hand, the defendant has proffered
evidence that the Georgia positions were above Marshall’s qualifications. [Record No. 34-1,
pp. 7374] Further, the only evidence Marshall has presented regarding sex as a motivating
factor is the mere fact that three males, and no females, were offered transfers.
reasonable jury could find that this fact, standing alone, is indicative of gender bias,
especially without any indication that Marshall qualified for the Georgia positions. See Reed
v. Procter & Gamble Mfg. Co., 556 F. App’x 421, 439 (6th Cir. 2014), cert. denied, 135 S.
Ct. 84 (2014) (granting summary judgment to defendant under mixed-motive analysis where
there was “no evidence indicating that [the decisionmaker] harbored animus against AfricanAmericans”).
To the extent Marshall raises a failure-to-promote claim, she fails to “demonstrate
that a genuine issue of material fact existed concerning whether [her gender] was a factor” in
Super Service’s employment decision. See Hicks v. Concorde Career College, 449 F. App’x
484, 487 (6th Cir. 2011) (where undisputed evidence demonstrated that wage decision was
based on differences in experience, position, and production goals, plaintiff’s mixed-motive
claim could not withstand summary judgment); see also Alcala v. Whirlpool Corp., 675 F.
Supp. 2d 765, 770 (N.D. Ohio 2009) (granting summary judgment to defendant on mixedmotive, failure-to-promote claim where plaintiff had different qualifications and experience
from the person who was promoted). As a result, Marshall’s failure-to-transfer and/or
failure-to-promote claim cannot survive summary judgment. See White, 533 F.3d at 400.
Marshall next asserts that Super Service reduced her pay upon transferring her due to
her gender. [Record No. 34, p. 7] A transfer resulting in a pay decrease constitutes an
adverse employment action. See Deleon v. Kalamazoo Cnty. Road Comm’n, 739 F.3d 914,
919 (6th Cir. 2014). However, Marshall has failed to offer sufficient evidence that gender
was a “motivating factor” in the decision to reduce her pay. See White, 533 F.3d at 400.
Again, her only evidence of gender animus is that the three transferred males maintained
their rate of pay and received reimbursement for moving expenses, while she did not. Super
Service contends that these incentives were necessary to convince the three male employees
to transfer locations, whereas no incentives were needed in Marshall’s case because she
requested a transfer. [Record No. 31-28, pp. 45, 7071] The company also emphasizes
that the male employees were transferred to the Georgia terminal which has a different pay
structure. [Record No. 34-1, p. 13] Further, the three male employees held supervisory and
management-type positions, whereas Marshall did not.
[Record No. 34-1, pp. 7374]
Marshall does not dispute these facts.
The Court may consider the employer’s legitimate, non-discriminatory reason for a
decision, even in mixed-motive cases. See, e.g., Copeland v. Regent Elec., Inc., 499 F.
App’x 425, 436 (6th Cir. 2012) (concluding that plaintiff failed to demonstrate a genuine
issue of material fact existed regarding employer’s proffered reason for the employment
action). Here, Super Service has provided strong evidence to explain why Marshall received
a reduction in pay and no reimbursement for moving expenses upon her transfer because the
employees who received the benefits were not comparable. See, e.g., Johnson-Romaker v.
Kroger Ltd. P’ship One, 609 F. Supp. 2d 719, 73031 (N.D. Ohio 2009) (determining that
mixed-motive claim failed where plaintiff could not proffer examples of employees who
committed comparable violations but received less stringent discipline). In addition, it has
shown that Marshall receives the mid-range pay at the Kentucky facility. [Record No. 31-28,
p. 72] Taking into consideration the factors raised by Super Service, no reasonable jury
could determine that gender animus motivated Super Service to reduce Marshall’s pay and
not offer her reimbursement for moving expenses upon transfer. See White, 533 F.3d at 400.
Increased Work Duties
To the extent that Marshall alleges gender discrimination because Super Service did
not offer her a raise when she transitioned from night dispatcher to breakdown coordinator, it
is dubious whether that constitutes an adverse employment action. See, e.g., Kocsis v. MultiCare Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996) (“This court has held that reassignments
without salary or work hour changes do not ordinarily constitute adverse employment
decisions in employment discrimination claims.”); Fricke v. E.I. Dupont Co., No. Civ. A.
3:02CV536-S, 2005 WL 1949552, *3 (W.D. Ky. Aug. 11, 2005) (addressing age
discrimination claim). [Record No. 34, p. 22] In any event, Marshall does not offer any
evidence that her increased duties resulted from gender animus. See White, 533 F.3d at 400.
All night dispatch positions were eliminated from the Somerset facility. [Record No. 31-26,
p. 196] Further, as a breakdown coordinator, Marshall was paid the average salary. [Record
No. 31-28, pp. 7172] Additionally, the defendant highlights one male employee handling
both breakdown and Vascor issues who was paid comparably to the plaintiff. [Record No.
31-26, p. 42] Other employees handled both breakdown and Vascor duties, but Marshall
does not contend that they were paid more than she received or that they received pay
increases when transitioning from the night dispatch to the breakdown coordinator position.
[Record No. 34-1, p. 31] Without any evidence of gender animus, this claim fails under the
applicable summary judgment standard. See White, 533 F.3d at 400.
The Complaint seems to assert that Marshall’s “write-ups” resulted from gender
animus. [Record No. 34, pp. 1213] She received three warnings/write-ups: one for failing
to arrive at her new 5:00 p.m. start-time, one for failing to follow call-in procedures, and one
for wearing a skirt that did not meet company policy. Marshall does not dispute that she
failed to comply with company rules and regulations; instead, she claims that she has offered
valid explanations for her errors. [Record Nos. 34-5, p. 164; 34-19, pp. 64; see Record No.
31-13] Further, the first write-up was expunged. [Record No. 34-5, pp. 13536]
“In general, a negative performance evaluation does not constitute an adverse
employment action unless the evaluation has an adverse impact on an employee’s wages or
salary.” White, 533 F.3d at 402. Written counseling and write-ups are not usually adverse
employment actions. See Hill v. Nicholson, 383 F. App’x 503, 509 (6th Cir. 2010); Norman
v. Rolling Hills Hosp., LLC, 820 F. Supp. 2d 814, 823 (M.D. Tenn. 2011). Marshall’s three
warnings do not constitute adverse employment actions, so any discrimination claim based
solely on those warnings must fail. See White, 533 F.3d at 400. However, the Court will
consider these warnings to the extent that they influenced the decision to discharge Marshall.
Marshall contends that Super Service discharged her because she is a female.
[Record No. 34, p. 27] Discharge is an adverse employment action. 42 U.S.C. § 2000e2(a)(1). The plaintiff’s evidence that gender animus influenced the decision to terminate her
includes: (i) Kephart’s warning that her skirt length violated company policy; (ii) Kephart’s
alleged disrespectful tone and body language; (iii) male employees who were not terminated
for violating company policies and procedures; and (iv) increased scrutiny of her
performance after her complaints about Taylor. [Id., pp. 2526] Conversely, Super Service
asserts that Marshall was discharged because she failed to report the January 10, 2014
accident to Safety. [Record No. 31-1, p. 28]
Kephart’s warning concerning Marshall’s skirt length does not constitute evidence of
discriminatory motive for the reasons previously discussed. In a mixed-motive case, the
Court still considers “the identity of the speaker, the nature and substance of the comments,
and the temporal proximity of the comments to the challenged decision.” See Lopez v. Am.
Family Ins. Co., 618 F. App’x 794, 800 (6th Cir. 2015) (Title VII race discrimination claim).
Although Kephart was one of the supervisors involved in the decision to discharge Marshall,
the substance of his comment was not indicative of gender bias. Instead, he was focused on
company policy, and Marshall does not contend that she was not violating the policy.
[Record No. 31-15] Further, the remark was made nearly eight months before the company’s
termination decision. [Record Nos. 31-12; 31-20] The nexus between the challenge3d
comment and the termination decision is too far removed, weighing in favor of summary
judgment for Super Service on this issue.
Kephart’s alleged disrespectful body language included “shrugging his shoulders”
and “holding his palms up in the air.”
[Record No. 31-25, pp. 24041]
In and of
themselves, these actions do not necessarily suggest gender animus, as they may have simply
represented animus towards the plaintiff unrelated to her gender. Compare with Culberson v.
Doan, 65 F. Supp. 2d 701, 706 (S.D. Ohio 1999) (stating that “particular expressions of
affection may be laden with disrespect for women”).
Marshall argues that Kephart treated another female employee with similar disrespect:
Kim Caldwell. [Record No. 31-15] However, Caldwell denies any such treatment [Record
No. 31-28, pp. 5253], and Marshall was unable to provide any specific examples of Kephart
acting disrespectfully towards Caldwell. Rather, she claims that Kephart alienated Caldwell
by not involving Caldwell in counseling sessions with Marshall or allowing Marshall to
report to Caldwell.
[Record No. 31-15]
However, the plaintiff does not dispute that
- 19 -
Caldwell was no longer her direct supervisor, meaning that the conclusions Marshall inferred
from Kephart’s conduct were both subjective and unreasonable. [Record No. 34-5, p. 118]
Moreover, Marshall only states that Kephart “would not” have used certain tones with a male
employeenot that he did not use such tones with male employeesemphasizing that
Marshall’s allegations regarding Kephart are speculative. See Alomari v. Ohio Dep’t of
Public Safety, 626 F. App’x 558, 566 (6th Cir. 2015) (finding that “no reasonable juror could
believe that discriminatory animus motivated” disparate treatment where employer provided
reason for the treatment and plaintiff responded with speculation). No reasonable juror could
interpret Kephart’s treatment of Marshall as motivated by gender bias.
Consequently, Marshall attempts to create an inference of discriminatory motive by
showing disparate treatment. To demonstrate disparate treatment, Marshall points to several
employees who were not discharged after violating company rules. For instance, she notes
that Kevin Taylor left work early on multiple occasions and had domestic violence charges
made against him. [Record Nos. 31-23, p. 5; 31-26, p. 268] While leaving work early is
similar to Marshall’s late arrival, it appears that Taylor received harsher punishment than
Marshall because he was cited for his behavior, whereas Marshall’s write-up was expunged.
[Record No. 31-26, p. 268]
Taylor’s domestic violence charge is not comparable to the conduct that ultimately
resulted in Marshall’s discharge: the failure to report an accident to Safety. First, Taylor’s
domestic violence charge was not related to work at Super Service. Second, it was merely a
charge, not a conviction. Super Service was entitled to conclude that Taylor’s charge did not
necessitate discipline because it had little, if any, effect on his work performance. See
Alomari, 626 F. App’x at 566 (“[B]eyond pure speculation, Deputy Director Mack’s
assertions provide no evidence of a discriminatory motive behind the disparate treatment of
Plaintiff and Martin.”). To the extent that Taylor was disrespectful towards a vendor [Record
No. 34-6, p. 111], that behavior is still not comparable to failing to report a serious accident
to Safety. Thus, no gender animus can be reasonably inferred from the company’s failure to
discharge Taylor based on his behavior.
Next, the plaintiff points to Tony Price’s verbal threat to Kevin Taylor as evidence of
disparate treatment. [Record No. 31-23, p. 5] A verbal threat is not similar to failing to
report an accident. Marshall also claims that Phil Neal’s altercation with a co-worker is
comparable. [Record No. 31-23, p. 5] Again, this act is dissimilar to the failure to report an
accident to Safety. The threats/arguments may have affected only Super Service, whereas
Marshall’s act affected Vascor, as well. Moreover, Marshall is not aware if Neal was
disciplined. [Record No. 31-26, pp. 28687]
Lastly, Marshall claims that Beachy’s failure to quickly report the January 10, 2014
accident to Safety is comparable to her conduct. [Record No. 34, p. 26] However, it was not
Beachy’s duty to report the accident to Safety. [Record Nos. 31-28, p. 60; 31-31, p. 24; 34-1,
p. 17; 34-5, p. 75] Marshall asserts that it should have been his duty and that she was
confused about who had the duty of reporting accidents to Safety. [Record No. 34, p. 26]
But Beachy was the Vascor Operations Manager, rather than a breakdown coordinator.8
[Record No. 34-18, p. 2] Further, no one else in Marshall’s department (the breakdown
The job description for the breakdown coordinator position states that it is the duty of the
breakdown coordinator to report accidents to Safety. [Record No. 31-28, pp. 6667]
- 21 -
department) was on duty when the accident was reported to her. [Record No. 31-26, p. 202]
Additionally, there is evidence that she reported accidents to Safety in the past. [Record No.
31-19, p. 14] Thus, Super Service has demonstrated that Marshall’s and Beachy’s situations
differed in significant ways.9
Disparate treatment resulting from different employment
situations does not raise an inference of discriminatory motive.
Although perhaps Beachy was partially to blame for allowing the reporting issue to
slip through the cracks, Super Service was entitled to determine that Marshall was the
primary culpable party. See Smith v. Leggett Wire Co., 220 F.3d 752, 763 (6th Cir. 2000)
(stating that “it is inappropriate for the judiciary to substitute its judgment for that of
management”). Ultimately, Super Service’s disparate treatment of Marshall is explained by
the fact that the specified employees committed substantially different company violations or
held substantially different positions. Consequently, the evidence cited by Marshall does not
raise an inference of discriminatory motive in the decision to discipline and/or discharge the
plaintiff.10 See Alomari, 626 F. App’x at 566.
Because Marshall’s discrimination claims cannot survive under a mixed-motive
theory, they certainly cannot survive under a single-motive theory. Under the McDonnellDouglas framework, the plaintiff must first establish a prima facie case by showing that: (1)
Technically, Beachy did report the accident to Safetyhe simply reported the accident at
a later time. On the other hand, Marshall never reported the accident to Safety. [Record No. 3130, pp. 7475]
Additionally, Marshall has not provided any evidence regarding discipline of other
employees who failed to report an accident to Safety (if they exist). It appears that there have
not been any male employees who failed to report an accident to Safety. [Record Nos. 34-1, p.
69; 34-4, p. 81]
she was a member of a protected class; (2) she suffered an adverse employment action; (3)
she was qualified for the position; and (4) she was treated differently than similarly-situated,
non-protected employees. Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006).
In particular, for the aforementioned reasons, Marshall fails to identify similarly-situated
employees who were treated differently.
Once a prima facie case is shown, a defendant must produce a “legitimate,
nondiscriminatory reason” for the adverse action(s). See Wright, 455 F.3d at 706. With
respect to the failure-to-transfer claim, Super Service provided a reasonable explanation why
only three males were offered transfers. Further, it has reasonably explained why Marshall’s
pay was reduced upon her transfer. With regard to the discharge claim, Super Service has
presented uncontested evidence that Marshall reported to work late on one occasion, failed to
inform the appropriate supervisor of a day when she could not work, and failed to report a
serious accident to Safety. As a result, the defendant has met its burden of production.
Once the defendant meets this burden, the plaintiff must show that the
nondiscriminatory reason is merely a “pretext for discrimination.” See id. at 707. With
respect to the failure-to-transfer and pay-reduction claims, Marshall provides no evidence
concerning why Super Service’s reasons are mere pretext. With regard to the discharge
claim, Marshall relies on Super Service’s treatment of Roger Beachy to demonstrate that the
nondiscriminatory reason is pretextual. [Record No. 34, p. 26] But this argument is not
persuasive because he is not similarly-situated.
While Marshall argues that her error did not require her discharge and that there are
reasonable explanations for it, “an employee cannot prove pretext even if the employer’s
reason in the end is shown to be ‘mistaken, foolish, trivial, or baseless.’” See id. at 708
(quoting Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998)). “[T]he key inquiry is
whether the employer made a reasonably informed and considered decision before taking an
adverse employment action,” and whether it “honestly believed” in its proffered reason. Id.
Here, Super Service provided evidence that it conducted an investigation into Marshall’s
failure to report the Vascor accident to Safety. [Record No. 31-28, p. 59] And it reasonably
decided that because Marshall was the only breakdown coordinator on duty at the time, it
was her responsibility to report the accident. [Record No. 31-26, p. 202]
The Court will not “micro-manage” employment decisions absent evidence that Super
Service failed to make a “reasonably informed and considered decision” before deciding to
discharge the plaintiff. See Wright, 455 F.3d at 708. Because Marshall fails to provide
sufficient evidence under both the single-motive and mixed-motive theories, Super Service is
entitled to summary judgment on her discrimination claims under Title VII and the KCRA.11
The plaintiff claims that Super Service retaliated against her because she: (i)
complained about her pay reduction upon transfer; (ii) requested a raise when her duties were
increased; (iii) expressed concern about working with Taylor; and (iv) made a formal
complaint about sex discrimination against Kephart. [Record No. 34, pp. 10, 20, 28] She
contends that such retaliation took the form of write-ups, disciplinary actions, and ultimately,
her discharge from employment. [Id., p. 24]
The Court has not addressed, in detail, the KCRA mixed-motive standard because it is
even higher than the Title VII mixed-motive standard. See Mendez, 357 S.W.3d at 541.
- 24 -
The mixed-motive standard does not apply to retaliation claims. Univ. of Texas Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). For a prima facie case of retaliation, the
plaintiff must demonstrate that: (1) she “engaged in activity protected by Title VII;” (2) her
“exercise of such protected activity was known by the defendant;” (3) “the defendant took an
action that was materially adverse to the plaintiff;” and (4) “a causal connection existed
between the protected activity and the materially adverse action.”
Laster v. City of
Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (internal quotation marks and citation
Kentucky courts interpret retaliation under the KCRA consistent with its
interpretation by federal courts. Brooks v. Lexington-Fayette Urban Cnty. Housing Auth.,
132 S.W.3d 790, 801, 803 (Ky. 2004).
If the plaintiff establishes her prima facie case, the burden of production shifts to the
defendant, who must produce a legitimate, non-retaliatory reason for the adverse action.
Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 502 (6th Cir. 2009). If the defendant
succeeds in producing a legitimate reason, the burden shifts back to the plaintiff to show that
the reason is mere pretext. Id. The ultimate burden of persuasion always rests with the
plaintiff. Laster, 746 F.3d at 731.
Prima Facie Case
Protected Activities and Notice
There are two types of protected activity. First, the employer may not retaliate when
an employee has “opposed any practice made an unlawful employment practice.” 42 U.S.C.
§ 2000e-3(a). Second, the employer may not retaliate when an employee has “participated in
any manner in an investigation, proceeding, or hearing” under Title VII. Id. “Activities
prior to the instigation of statutory proceedings are analyzed under the opposition clause.”
Scheske v. Univ. of Mich. Health Sys., 59 F. Supp. 3d 820, 827 (E.D. Mich. 2014).
Marshall cannot succeed on her retaliation claim under the McDonnell-Douglas
First, Marshall’s complaints about working with Taylor did not constitute
protected activities under Title VII. Marshall alleges that Super Service disciplined and
discharged her because she complained about a potentially dangerous co-worker. [Record
No. 34, p. 10] Even if Super Service fired Marshall for that reason, it does not imply that
Super Service had an impermissible, gender-based motive.
See Johnson v. Univ. of
Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (“[T]he complaint may be made by anyone and
it may be made to a co-worker, newspaper reporter, or anyone else about alleged
discrimination against oneself or others; the alleged discriminatory acts need not be actually
illegal . . . .”) (emphasis added). Marshall does not claim that Taylor discriminated in any
way against her or any other female at Super Service. Super Service could have just as easily
discharged a male employee for complaining about his co-worker’s dangerous attributes.
However, protected activities also include “opposing any practice that the employee
reasonably believes to be a violation of Title VII . . . .” Briggs v. Univ. of Detroit-Mercy,
611 F. App’x 865, 871 (6th Cir. 2015). It was unreasonable for Marshall to believe that
Taylor’s actions at work were a violation of Title VII. Further, it was unreasonable for her to
believe that Super Service was discriminating against her by keeping Taylor on duty.
Moreover, Marshall did not put Super Service on notice that she was opposing a
discriminatory practice. See Brown v. VHS of Mich., Inc., 545 F. App’x 368, 373 (6th Cir.
2013) (plaintiff “is required to put her employer on notice that her complaint concerns
statutory rights”). For example, she stated that she was concerned with “employee safety.”
[Record No. 31-13] She also expressed concern that there was no supervisor on duty when
she and Steve Duncan were working with Taylor. [Record No. 31-10] Thus, Marshall
cannot succeed on a retaliation claim premised on her complaints about Taylor.12
Nor did Marshall’s complaint about a pay reduction constitute a protected activity. In
her e-mail to Maat on July 22, 2012, she wrote, “[i]f an employee transfers to a different
terminal, holding the same position and title, providing the company has not paid or offered
any moving expenses, is their pay rate subject to change?” [Record No. 31-3] Additionally,
when she asked for reinstatement of her original salary upon changing shift times, she did not
give any indication that she believed Super Service was discriminating against her. [Record
No. 31-26, p. 56] Because she failed to provide notice to Super Service that she was
opposing a discriminatory practice, any retaliation claim premised on this theory cannot
succeed. See Brown, 545 F. App’x at 373.
Super Service also argues that Marshall’s “formal complaint” against Kephart is not a
protected activity because it did not put Super Service on notice that Marshall was opposing
gender discrimination. In Marshall’s “formal complaint” e-mail sent to Maat on May 14,
2013, she stated that Kephart’s actions were “discriminatory.” [Record No. 31-13] In the email sent two days later, Marshall explained that Kephart “ha[d] an issue addressing and
In her deposition, the plaintiff alleged that Taylor assaulted his wife after leaving work in
the middle of his shift. [Record No. 31-19, pp. 2526] She also claimed to have informed Kidd
that Taylor was charged with his third offense against a woman. [Id., p. 26] These facts suggest
that Taylor posed an increased threat towards women (as opposed to men) and that such a threat
might materialize at work. However, because Marshall never claimed that Taylor discriminated
against her or any other female employee, Super Service was not notified that she was
complaining of a Title VII violation. See Brown, 545 F. App’x at 373.
- 27 -
dealing appropriately with female employees.” [Record No. 31-15] She also stated that
Kephart was “alienating female supervisor Kim Caldwell.” [Id.]
“[C]omplaints to human resources personnel regarding potential violations of Title
VII constitute protected activity . . . .” Trujillo v. Henniges Auto. Sealing Sys. N. Am., Inc.,
495 F. App’x 651, 655 (6th Cir. 2012). Although it is a close call whether Marshall
reasonably believed Kephart’s actions constituted discrimination against women, due to the
Sixth Circuit’s “broad interpretation of protected activity,” the Court finds that Marshall
meets her burden of establishing a protected activity under Title VII. Simpson v. Vanderbilt
Univ., 359 F. App’x 562, 571 (6th Cir. 2009). Both John Kidd and Steve Maat received
Marshall’s e-mails. As a result, the defendant was aware of Marshall’s participation in a
protected activity, and the analysis continues.13 See Laster, 746 F.3d at 730.
Materially Adverse Actions
The “materially adverse action” element of a retaliation claim is less restrictive than
the “adverse employment action” element of a discrimination claim. See Laster, 746 F.3d at
719 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)).
materially adverse action is an action that would have “dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68.
It is significant that when Maat asked Marshall to provide details regarding Kephart’s
allegedly discriminatory behaviors, she did not respond. [Record Nos. 31-16, p. 2; 34-1, p. 53]
However, Marshall’s prior claims regarding Kephart were sufficient to put Super Service on
notice that she was alleging gender-based discrimination. Although the evidence thus far
demonstrates that Kephart was not aware of Marshall’s complaint against him [Record No. 3129, p. 66], because Steve Maat was involved in her discharge decision and was aware of the
protected activity, the plaintiff has established notice. See Lewis-Smith v. W. Ky. Univ., 85 F.
Supp. 3d 885, 910 (W.D. Ky. 2015) (one decision-maker was unaware of the protected activity
but genuine issue of material fact existed concerning whether other decision-maker had
knowledge of the protected activity).
While write-ups and disciplinary actions qualify as materially adverse actions under
the Burlington Northern standard, none of these occurred after Marshall’s e-mail complaints
alleging that Kephart was discriminating against her. Only Marshall’s shift-change and
discharge occurred after the e-mails.
A discharge is a materially adverse action.
Goodsite v. Norfolk S. Ry. Co., 573 F. App’x 572, 583 (6th Cir. 2014). In addition, a
schedule-change may constitute an adverse action under certain circumstances. See, e.g.,
Blackburn v. Shelby Cnty., 770 F. Supp. 2d 896, 922 (W.D. Tenn. 2011).
“[T]he proximity in time between protected activity and adverse employment action
may give rise to an inference of a causal connection.” See Ford v. Gen. Motors Corp., 305
F.3d 545, 555 (6th Cir. 2002) (internal quotation marks and citation omitted). In the present
case, nearly seven months passed between Marshall’s complaints about genderdiscrimination and the shift-change.
[Record No. 31-15; 31-26, p. 186] Marshall has
produced very little evidence connecting these May complaints with her shift-change in
December; however, the Court notes that Kephart (the subject of the complaints) decided to
implement the shift-change. [Record No. 34-1, p. 64] But because the shift-change was
implemented with respect to all breakdown coordinators at the Somerset terminal [Record
No. 31-17], Marshall fails to establish a causal connection between the protected activity and
the materially adverse action. See, e.g., Cherry v. Unipres U.S.A., Inc., No. 3:04CV0036,
2006 WL 288645, *6 (M.D. Tenn. Feb 6, 2006) (reasoning that shift-change was not
materially adverse action where action affected all employees on third shift equally).
Nearly eight months passed between Marshall’s complaints about gender-based
discrimination and the decision to discharge her from employment. [Record Nos. 31-13; 3115; 34-1, p. 29; 31-20] Marshall has produced very little evidence connecting these May
2013 complaints with her termination in January of the next year. However, the Court again
notes that Kephart (the subject of the complaints) was involved in her termination decision.
[Record No. 31-20] Because this is a fact-intensive question at the summary judgment stage,
the Court concludes that an issue of fact is presented regarding whether Marshall established
a causal connection between the protected activity and the discharge decision. But see
Vaughn v. Louisville Water Co., 302 F. App’x 337, 349 (6th Cir. 2008) (“[W]here some time
elapses between when the employer learns of a protected activity and the subsequent adverse
employment action, the employee must couple temporal proximity with other evidence of
retaliatory conduct to establish causality.”) (quoting Mickey v. Zeidler Tool & Die Co., 516
F.3d 516, 525 (6th Cir. 2008)).
Legitimate, Non-retaliatory Reason
Super Service has proffered evidence of a “legitimate, non-retaliatory reason for
terminating” the plaintiff. See Hugo v. Millennium Lab., Inc., 590 F. App’x 541, 545 (6th
Cir. 2014) (internal quotation marks and citation omitted). Marshall did not comply with
company procedure when she failed to report a serious Vascor accident to Safety. [Record
Nos. 31-30, p. 74; 31-28, p. 60; 31-31, p. 24; 34-1, p. 17]
Marshall argues that Super Service’s proffered reason for discharging her is mere
pretext. [Record No. 34, p. 26] To demonstrate pretext, the plaintiff must establish that the
defendant’s “stated reasons had no factual basis, did not actually motivate [its] decision to
terminate [her], or were insufficient to support [its] decision.” Hugo, 590 F. App’x at 545.
Further, “[a]s long as an employer has an honest belief” in its non-retaliatory reason for
taking a materially adverse action, “the employee cannot establish that the reason is
pretextual simply because it is ultimately shown to be incorrect.” See Vaughn, 302 F. App’x
at 350 (internal quotation marks and citation omitted).
Marshall does not allege that Super Service’s stated reason has no factual basis.
While at times she quibbled with whether her failure to report provided sufficient support for
Super Service’s decision, she appears to have abandoned this argument. [See Record No. 34,
p. 26.] Instead, Marshall argues that Super Service’s proffered reason did not actually
motivate its decision to discharge her by pointing to the fact that Roger Beachy was not
discharged for failing to immediately report the accident to Safety. See Barrett v. Whirlpool
Corp., 556 F.3d 502, 51617 (6th Cir. 2009) (“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 . . . .”) (addressing prima facie case). [Record No. 34, p. 26]
As discussed above, Beachy was not similarly-situated to the plaintiff because it was
not his duty to report the accident to Safety. See Romans v. Mich. Dep’t of Human Servs.,
668 F.3d 826, 838 (6th Cir. 2012) (“Plaintiff has failed to demonstrate any specific way in
which he was treated differently than a similarly situated non-white employee.”); Mitchell v.
Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992) (reasoning that comparators must be
“subject to the same standards and have engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the
employer’s treatment of them for it”). [Record Nos. 31-28, p. 60; 31-31, p. 24; 34-1, p. 17]
Beachy’s differing role explains why Super Service treated his conduct differently. [Record
No. 34-18, p. 2]
Further, Beachy had a different supervisor. See Mitchell, 964 F.2d at 583 (“[T]o be
deemed similarly-situated, the individuals with whom the plaintiff seeks to compare his/her
treatment must have dealt with the same supervisor, . . .”) (internal quotation marks omitted).
Because Beachy was not “similarly situated in all respects,” he is not an appropriate
comparator, and any evidentiary weight associated with his non-termination is negligible.
See id.; Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 378 (6th Cir. 2002) (focusing
more closely on the similarities and differences between plaintiff and comparator where the
plaintiff sought to establish pretext primarily with evidence that a similarly situated
employee received disparate treatment for the same conduct).14
concedes that she never informed management that Beachy allegedly told her that he would
contact Safety. [Record No. 31-26, p. 265]
Under the “honest belief” standard, Super
Service’s decision to terminate Marshall was especially reasonable because the company was
unaware of a potential mitigating circumstance. See Vaughn, 302 F. App’x at 350.
The plaintiff asserts that Beachy’s position “should also be to protect the Company.”
[Record No. 34, p. 26] She also questions “how do [the supervisors] bridge the gap to say
See also Manzer v. Diamond Shamrock Chemicals, Co., 29 F.3d 1078, 1084 (6th Cir.
1994), overruled on other grounds by Geiger v. Tower Auto., 579 F.3d 614, 621 (6th Cir. 2009),
(“The third showing is also easily recognizable and, ordinarily, consists of evidence that other
employees, particularly employees not in the protected class, were not fired even though they
engaged in substantially identical conduct to that which the employer contends motivated its
discharge of the plaintiff.”) (emphasis added).
she bears the whole of the responsibility, and Roger Beach[y] bears none of it?” [Id.] But
these are the types of questions that Smith sought to avoid. 220 F.3d at 763. While Super
Service’s reason for firing Marshall involved some “subjective factors, [it was] clearly
sufficient to dispel the inference of discrimination.” Daniels v. Bd. of Educ. of Ravenna City
School Dist., 805 F.2d 203, 209 (6th Cir. 1986).
Hostile Work Environment
Exhaustion – Title VII
Super Service also argues that Marshall failed to exhaust her hostile work
environment claim under Title VII.15 [Record No. 31-1, p. 33] An employee alleging
employment discrimination must first file a charge with the EEOC within 180 days of the
alleged violation, subject to certain exceptions. 42 U.S.C. § 2000e-5(e)(1). Generally, a
plaintiff may not bring claims in a lawsuit if they were not included in the charge. Younis v.
Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010).
“[T]he inclusion in an EEOC
charge of a discrete act or acts, standing alone, is insufficient to establish a hostile-workenvironment claim for purposes of exhaustion.” Id. at 362. In other words, when a plaintiff
describes only discrete discriminatory or retaliatory acts in the charge, she fails to exhaust
her claim “unless the allegations in the complaint can be reasonably inferred from the facts
alleged in the charge.” Id.
Marshall’s EEOC charge alleged only that: (i) she received a pay reduction upon
transfer; (ii) her workload was subsequently increased without a corresponding pay increase;
(iii) Kephart discriminated against her based on her sex; and (iv) the company retaliated
Marshall has not responded to this argument.
- 33 -
against her for making a discrimination complaint.
Questionnaire” merely expanded on these issues.
[Record No. 31-21]
[Record No. 31-23]
Marshall explained that her discharge followed her failure to report an accident to Safety and
that male employees violated company policies without repercussions. [Id.]
With respect to a hostile work environment claim premised on Kevin Taylor’s
behavior, Marshall did not reference his domestic abuse charges and violent conduct in her
EEOC charge. [See Record No. 31-23, p. 5.] Nor did she indicate that he harassed her in
any way. Consequently, Marshall failed to exhaust the hostile work environment claim
insofar as it is premised on Taylor’s behavior. See Younis, 610 F.3d at 361. However, the
Court will address the merits of that part of the claim in the discussion that follows,
particularly because the KCRA does not involve an administrative exhaustion requirement.
Regarding her contention that supervisors at Super Service created a hostile work
environment, Marshall relies upon the same facts to support both her discrimination and
hostile work environment claims. As a result, the Court will not grant summary judgment to
the defendant with respect to that part of the Title VII claim on the basis of failure to
exhaust.16 However, the Court doubts that a hostile work environment claim can be
“reasonably inferred from the facts alleged in the charge.” See id. at 362.
Super Service also asserts that Marshall’s hostile work environment claim is barred
because, even if it had been included in the EEOC charge, it would be untimely. [Record No.
31-1, p. 42] Most of the alleged harassment occurred in May 2013, but the charge was filed in
March 2014. See 42 U.S.C. § 2000e-5(e)(1). [Record No. 31-21] However, to the extent
Marshall argues that the termination decision was part of the hostile work environment claim, the
Court has considered the merits. Further, the lack of an administrative exhaustion requirement in
the KCRA requires that the Court to consider the merits of the claim under the KCRA.
“[D]iscriminatory intimidation, ridicule, and insult” that is “sufficiently severe or
pervasive to alter the conditions of employment” creates a hostile work environment. See
Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333 (2008). “[C]onduct must be severe or
pervasive enough to create an environment that a reasonable person would find hostile or
abusive, and the victim must subjectively regard that environment as abusive.” Jackson v.
Quanex Corp., 191 F.3d 647, 658 (6th Cir. 1999). A hostile work environment claim
brought under the KCRA is “analyzed in the same manner as a claim brought under Title
VII.” Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir. 2005).
A plaintiff may support a hostile work environment claim with direct or indirect
evidence. See Barrett, 556 F.3d at 514. The mixed-motive theory does not apply to hostile
work environment claims. See Alexander v. Univ. of Ky., No. 5:10-CV-48-REW, 2012 WL
1068764, *20 (E.D. Ky. Mar. 28, 2012) (citing Stacks v. Sw. Bell Yellow Pages, Inc., 27 F.3d
1316, 1326 (8th Cir. 1994)). Under the McDonnell Douglas framework, for a prima facie
case of hostile work environment, a plaintiff must establish that: (i) she was a member of a
protected class; (ii) she was subjected to unwelcome harassment; (iii) the harassment was
based on sex; (iv) the harassment unreasonably interfered with her work performance; and
(v) the employer is liable. See Barrett, 556 F.3d at 515.
The defendant asserts that the EEOC’s determinations are highly probative of the
ultimate issues involved in this case. [Record No. 39, p. 11] Although the Court has reviewed
the EEOC’s decision, the decision has not influenced the Court’s determination of the issues.
But see Garrett v. Sw. Med. Clinic P.C., No. 1:13-cv-634, 2014 WL 7330947, *13 (W.D. Mich.
Dec. 19, 2014) (EEOC determination may be admissible at trial).
Marshall claims that Super Service is responsible for the alleged hostile work
environment she experienced while working with Kevin Taylor, an individual with a history
of domestic abuse charges and a charge pending in April 2013. [Record No. 34, p. 16]
While she has established that she was in a protected class, Marshall fails to allege specific
facts concerning whether Taylor subjected her to unwelcome sexual harassment. In fact,
Marshall stated in her deposition that Taylor did not harm her, speak to her in a “harsh”
manner, or act inappropriately towards her. [Record Nos. 31-26, p. 110; 31-27, p. 44]
Although Marshall may have feared Taylor due to his behavior outside of work, he did not
harass her. Consequently, Marshall fails to satisfy the second prong of the analysis outlined
in Barrett, 556 F.3d at 515.
Even though Taylor allegedly cursed at a vendor and slammed down a phone, his
reaction was not directed at Marshall in any way. [Record No. 34-19, p. 77] Even if the
Court determined that such conduct created an abusive environment, Marshall has not made
a showing that the conduct was based on sex. See Barrett, 556 F.3d at 515. Nor has she
asserted that it unreasonably interfered with her work performance. See id. Thus, Marshall’s
claim that working with Taylor constituted a hostile work environment must fail at this
Marshall stated during her deposition that Taylor twice showed her photographs of
“nude” females on his cellphone. [Record No. 31-26, p. 300] She later described the females in
the photographs as “scantily clad.” [Id., p. 302] However, Marshall does not mention these
incidents in her briefs, and she does not argue that the conduct was sufficiently severe or
pervasive or that it interfered with her work performance. See Barrett, 556 F.3d at 515.
Moreover, Marshall admits that she never informed Super Service of this behavior, and she fails
to assert any reason why Super Service “should have known” that such conduct was occurring.
- 36 -
Kephart and Other Supervisors
The plaintiff makes very general claims that she was subjected to a hostile work
environment caused by her supervisors.19 [Record No. 34, p. 23] A plaintiff meets the third
prong of the analysis with either direct evidence of gender-specific and derogatory terms or
comparative evidence of how the alleged harassers treated members of both sexes in the
workplace. See Wade v. Automation Personnel Servs., Inc., 612 F. App’x 291, 298 (6th Cir.
2015). The only potentially “direct evidence” provided by Marshall is Kephart’s comment
about the inappropriate length of her skirt. For the reasons stated above, this comment is
better viewed as indirect evidence.
Marshall’s comparative-evidence argument ultimately fails. As outlined above, with
respect to the transfer situation, Marshall has not demonstrated that the male employees who
were offered transfers were appropriate comparators.
Regarding discipline, Marshall
conceded that Taylor was cited for leaving work early, indicating that he was punished more
severely than she was for arriving late. [Record No. 31-26, p. 268] In addition, Price and
Neal’s alleged misconduct was dissimilar to hers, so they are not appropriate comparators.
[Record No. 31-23, p. 5]
Moreover, while Beachy’s conduct most closely resembled
Marshall’s conduct, he is not an appropriate comparator because he had different duties.
[Record No. 34-18, p. 2] Because legitimate reasons support the differences in treatment
See Hafford v. Seidner, 183 F.3d 506, 513 (6th Cir. 1999). [Id., p. 303] Thus, any hostile work
environment claim premised on this behavior cannot withstand summary judgment.
Marshall only references facts relevant to such a claim when discussing Kephart. Her
complaints regarding Super Service not offering her a transfer and reducing her pay are more
relevant to the discrimination claim. The same limitation applies to her arguments concerning
write-ups. However, the Court will consider all of the evidence presented in determining
whether Marshall has established a prima facie case of a hostile work environment.
between Marshall and other employees, no inference of gender-based harassment can be
drawn from these disciplinary instances. See Wade, 612 F. App’x at 298.
As a result, most of Marshall’s argument concerns the way that she was treated by
Kephart. Essentially, Marshall contends that he harassed her by repeatedly questioning her
truthfulness, scrutinizing her performance, speaking to her in a disrespectful way, and
dismissing her concerns. See Waldo v. Consumers Energy Co., 726 F.3d 802, 815 (6th Cir.
2013) (“[F]acially neutral incidents may be included in a hostile-work-environment analysis
of the totality of the circumstances when there is some circumstantial or other basis for
inferring that incidents sex-neutral on their face were in fact discriminatory.”). [Record No.
34, p. 27] Marshall only speculates regarding how Kephart treated other women, and at least
one other female refutes Marshall’s speculation. [See id.; Record No. 31-28, pp. 5253] The
plaintiff has produced insufficient circumstantial evidence to provide a basis for inferring
that Kephart’s (or any other supervisor’s) conduct towards her constituted sexual harassment.
See Waldo, 726 F.3d at 815.
Even if the Court determined that Marshall had met the third prong of the analysis,
her argument fails at the fourth prong.
The Court considers “the frequency of the
discriminatory conduct; its severity;20 whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance” in determining whether the plaintiff has satisfied the fourth prong. Wade, 612
F. App’x at 296. Here, Kephart’s behavior towards Marshall was infrequent. It only
The Court notes that the allegedly harassing conduct need only be sufficiently severe or
pervasive. See Waldo, 726 F.3d at 814. However, when the conduct is not extremely severe or
extremely pervasive, the Sixth Circuit looks at the totality of the circumstances, considering the
above factors. See id.
occurred when she failed to follow procedures [see Record Nos. 31-7; 31-23], or when
Marshall contacted Kephart regarding a complaint. [See, e.g., Record Nos. 31-10; 31-13] As
a result, this factor weighs against a finding in Marshall’s favor.
Nor was the conduct severe. Marshall was written-up for violating documented
company rules. [Record No. 31-2] Other than this incident, Marshall claims that Kephart
was disrespectful and dismissive towards her. But Title VII is not a “general civility code.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). In other words, “ordinary
tribulations of the workplace, such as the sporadic use of abusive language, gender-related
jokes, and occasional teasing,” do not constitute harassment. Id. Here, Marshall does not
even allege that Kephart, or any other supervisor, used abusive language, made genderrelated jokes, or teased her. Instead, Marshall focuses on how she felt. [See Record Nos. 34,
p. 27; 31-26, pp. 13-18.] Kephart’s shrugging of his shoulders and holding his palms pointed
toward the sky simply do not constitute the kind of harassing conduct contemplated by the
statute.21 See Akers v. Alvey, 338 F.3d 491, 499 (6th Cir. 2003) (holding that a supervisor
ignoring the plaintiff, encouraging co-workers to do the same, criticizing her work, and
withholding her mail did not satisfy the fourth prong). [Record No. 31-26, p. 241]
Because Marshall cannot satisfy the second, third, and fourth prongs of the hostile
work environment analysis, the Court need not address the fifth prong. However, the Court
notes that vicarious liability applies where the conduct pertained to supervisors. See Barrett,
556 F.3d at 516. And Super Service did not argue the affirmative defense to liability. See id.
Marshall has not provided evidence that the alleged harassment interfered with her work
performance. However, the Court has analyzed the frequency and severity of the alleged
behaviors to determine if the conditions of the workplace were altered in such a way as to create
an abusive working environment. See Barrett, 556 F.3d at 514.
However, Super Service had a policy for reporting sexual harassment [Record No. 31-2, pp.
56], and by failing to provide details regarding harassment to Super Service, Marshall likely
“failed to take advantage of any preventative or corrective opportunities” provided to her.
See Faragher, 524 U.S. at 807 (employer must prove that it exercised reasonable care to
prevent/correct behavior and plaintiff failed to take advantage of the opportunities for
Plaintiff’s Motion for Summary Judgment
The undisputed facts demonstrate that Super Service is entitled to summary judgment
on Marshall’s claims of sex-based discrimination, retaliation, and hostile work environment.
As a result, the Court will deny her motion for summary judgment.
Based on the foregoing analysis and conclusions, it is hereby
ORDERED as follows:
Defendant Super Service, LLC’s motion for summary judgment [Record No.
31] is GRANTED.
Plaintiff Joy Marshall’s motion for summary judgment [Record No. 35] is
Defendant Super Service, LLC’s Corrected Motion to Strike Plaintiff’s Expert
[Record No. 59] is DENIED, as moot.
All claims and causes of action asserted in this proceeding by Plaintiff Joy
Marshall against Defendant Super Service, LLC, are DISMISSED, with prejudice.
This action is DISMISSED, with prejudice, and STRICKEN from the
The trial of this matter, previously scheduled for April 19, 2016, is
This 6th day of April, 2016.
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