Kaufman v. General Electric Company
Filing
34
MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 5/26/2017; re 13 MOTION for Summary Judgment filed by General Electric Company ; a separate order shall enter.cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:16-CV-00204-TBR
DEMETRIA KAUFMAN
PLAINTIFF
v.
GENERAL ELECTRIC COMPANY
DEFENDANT
Memorandum Opinion
This matter is before the Court upon Defendant General Electric Company’s
(GE) motion for summary judgment.
[DN 13.]
responded, [DN 18], and GE replied, [DN 19].
adjudication.
Plaintiff Demetria Kaufman
Fully briefed, this matter is ripe for
For the following reasons, GE’s motion is GRANTED.
I. Facts and Procedural History
Demetria Kaufman was hired by GE on April 13, 2012.
[DN 18-1 at 116.]
Part of a mass hire, Kaufman was tasked with working on the assembly line that
produced GE’s new model of refrigerator and freezer.
[Id. at 97.] Like all other
new GE employees, Kaufman was initially placed on a six-month probationary
period.
[Id. at 103.] Kaufman acknowledges that during their first six months on
the job, GE employees are expected to abide by GE’s rules, including its attendance
policies. [Id. at 102-103.]
Kaufman, an African-American, was terminated at the
end of her probation because she did “not provide[] satisfactory reasons or
documentation for [her] absences.”
[DN 18-7 at 1.] In this suit, Kaufman alleges
GE retained several Caucasian probationary employees with similar attendance
records. See [DN 1-2.]
All told, Kaufman had attendance issues on seven different occasions during
her time at GE.
The first occurred on April 28, 2012, a Saturday.
scheduled to work a mandatory overtime shift. [DN 18-1 at 186.]
Kaufman was
She called in at
6:00 a.m., telling her supervisor, Sharon Lashinsky, her ankles were swollen.
at 185, 249; DN 18-3 at 1.]
Kaufman missed her entire eight hour shift.
[Id.
[DN 18-2
at 1.]
Kaufman also missed the next regular workday, Monday, April 30.
[Id.]
That day, she went to the chiropractor and the dentist, providing GE with
documentation for both visits. [DN 18-2 at 1.]
Kaufman’s next attendance issue occurred on Saturday, July 21.
GE’s
records reflect that Kaufman clocked out twelve minutes before the rest of her
department.
[Id.] Kaufman admits she left early, but explains on that particular
day, she was assigned to work a different assembly line than she normally worked.
[DN 18-1 at 194.]
According to Kaufman, the entire assembly line was dismissed
early, so she left with them.
[Id.]
On Wednesday, September 5, Kaufman was late to work.
GE claims
Kaufman was nine minutes late; however, its gate scans reflect that she arrived at
6:04 a.m., four minutes after her shift was scheduled to begin. [DN 18-2 at 1.]
Kaufman next missed work on Tuesday, September 11.
Gate scans show,
and Kaufman admits, she left work approximately four hours early.
at 212-14.]
[Id.; DN 18-1
During her deposition, Kaufman could not recall the reason for her
early departure, but says she most likely left to attend her personal bankruptcy
2
proceedings.
[DN 18-1 at 213-15.]
She testified that she provided HR a letter
regarding those proceedings and received permission to attend.
[Id. at 214-15.]
However, no evidence of record supports this testimony.
Two days later, on Thursday, September 13, Kaufman missed her entire
shift. [DN 18-2 at 1.]
Kaufman testified that she called in prior to her shift, [DN
18-1 at 231-33], but GE’s records document her September 13 absence as a “No Call,
No Show,” [DN 18-2 at 1].
Finally, on Tuesday, September 25, Kaufman missed a full day of work.
[DN 18-2 at 1.]
note.
Kaufman called in sick to her supervisor, but did not provide a
[DN 18-2 at 1; DN 18-6 at 1.]
In sum, during her six-month probation, Kaufman missed approximately 4.5
days, or thirty-six hours, of work.
Kaufman does not dispute this calculation, and
she admits that as a probationary employee, she was expected to have no absences.
[DN 18-1 at 103, 174.]
However, Kaufman alleges that three Caucasian
employees, hired around the same time, missed a similar or greater amount of
work, but were not terminated.
5, 2012.
[DN 18-12 at 1.]
[DN 18-1 at 154-55.]
The first employee is Nicole Turner, hired on April
Like Kaufman, Turner worked on a production line.
Kaufman testified that shortly after her termination,
“Theresa,” a Team Lead at GE, called her.1
[Id. at 156.]
Theresa told Kaufman
that Nicole Turner had an 8% rate of absenteeism during her first six months, but
GE extended her probation.
[Id. at 273.] Kaufman’s rate of absenteeism during
her probationary period was only 4.2%.
1
[Id. at 236, 238.]
Neither party has identified “Theresa” by her full name.
3
The second employee is Melissa Reece.
5, 2012.
[DN 18-10 at 1.]
She, like Turner, was hired on April
Pointing to attendance records GE provided during
discovery, Kaufman claims that Reece missed a total of 68.2 hours of work from
April 2012 to June 2012. See [DN 18-13 at 1.] However, Jonathon Lewis, GE’s
Union Relations Manager, explains that Kaufman’s calculation incorrectly includes
“uncontrollable absence” hours, when the factory was closed for holidays or lack of
work.
[DN 20 at 2.]
Lewis says Reece missed a total of twenty-one hours during
her probationary period, all of which were documented.
[Id.]
In any event,
Reece’s probation was extended for one month, and she was kept on after her
probation concluded.
[DN 18-10 at 1; see DN 18-14.]
Kaufman’s final potential comparator is Stephanie Roby.
Roby was part of
the April 5, 2012 hire group, and worked on the same production line as Kaufman.
[DN 18-11 at 1; DN 18-1 at 155.]
probationary period.
[DN 18-16 at 1.]
Roby missed 21.2 hours during her
At the end of her probationary period, Roby
received a letter identical to the one received by Reece, extending her probation by
one month.
[DN 18-11 at 1.]
GE says Roby’s absences were all documented, and
some were excused. [DN 20 at 4-5.] Roby was kept on at GE following her
extended probation. See [DN 18-13.]
In this suit, Kaufman claims that by terminating her employment but
extending the probationary period for Turner, Reece, and Roby, GE engaged in
unlawful race discrimination. See [DN 1-2.]
GE moves for summary judgment,
arguing that Kaufman was unqualified for her position at GE by virtue of her
4
absences, that Turner, Reece, and Roby are not similarly situated to Kaufman, and
that GE terminated Kaufman for a legitimate, non-discriminatory reason. See [DN
13-1.] Kaufman responded, [DN 18], and GE replied, [DN 19].
Fully briefed, GE’s
motion is ripe for adjudication.
II. Standard of Review
Summary judgment is appropriate when the record, viewed in the light most
favorable to the nonmoving party, reveals “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
A genuine dispute of material fact exists where “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court “may not
make credibility determinations nor weigh the evidence when determining whether
an issue of fact remains for trial.”
Laster v. City of Kalamazoo, 746 F.3d 714, 726
(6th Cir. 2014) (citing Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001);
Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)).
“The ultimate question 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.’”
Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson, 477
U.S. at 251-52).
As the party moving for summary judgment, GE must shoulder
the burden of showing the absence of a genuine dispute of material fact as to at
least one essential element of Kaufman’s claim.
Fed. R. Civ. P. 56(c); see Laster,
746 F.3d at 726 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
5
Assuming GE satisfies its burden of production, Kaufman “must—by deposition,
answers to interrogatories, affidavits, and admissions on file—show specific facts
that reveal a genuine issue for trial.” Laster, 746 F.3d at 726 (citing Celotex Corp.,
477 U.S. at 324).
III. Discussion
Kaufman’s sole claim is for unlawful race discrimination.
She alleges that
as an African-American probationary employee, she was treated less favorably than
Caucasian probationary employees who engaged in similar conduct.
In the
absence of direct evidence of discrimination, a claim of disparate treatment is
subject to the burden-shifting approach set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). The burden initially lies with the plaintiff to establish
a prima facie case of disparate treatment.
The burden then shifts to the defendant
to articulate a legitimate, nondiscriminatory reason for its action.
Assuming it
does so, the burden shifts back to the plaintiff to demonstrate the defendant’s
proffered reason is merely pretext for unlawful discrimination. Hollins v. Atl. Co.,
188 F.3d 652, 658 (6th Cir. 1999).
To establish her prima facie case, Kaufman must show that she was “(1) a
member of a protected class, (2) subject to an adverse employment action, (3)
qualified for the position, and (4) replaced by a person outside the protected class or
treated differently than similarly situated nonminority employees.” Tennial v.
United Parcel Serv., Inc., 840 F.3d 292, 303 (6th Cir. 2016) (citation omitted).
The
parties agree that Kaufman, an African-American, is a member of a protected class,
6
and that she was terminated – the prototypical adverse action.
However, they
dispute the final two elements of Kaufman’s prima facie case.
The Court will
address each in turn.
A. Kaufman’s Qualifications
First, GE argues that Kaufman was not qualified for her position because she
“did not meet GE’s expectations with respect to attendance.”
[DN 13-1 at 9.]
In
response, Kaufman points out that “[n]othing in the record indicates that [she]
lacked the ability to perform the essential functions of her position,” noting that she
received generally satisfactory remarks during the interview process.
[DN 18 at 6.]
“In order to be ‘qualified’ for her position, [the plaintiff] must demonstrate
that she was meeting her employer’s legitimate expectations and was performing to
her employer’s satisfaction.” Warfield v. Lebanon Corr. Inst., 181 F.3d 723, 729
(6th Cir. 1999).
GE contends Kaufman was unqualified because she failed to meet
GE’s legitimate attendance expectations.
But this is the very same justification
GE offers as its legitimate, non-discriminatory reason for terminating Kaufman at
the end of her probationary period.
The Sixth Circuit held in Cline v. Catholic
Diocese of Toledo, 206 F.3d 651, 660-61 (6th Cir. 2000), that “when assessing
whether a plaintiff has met her employer’s legitimate expectations at the prima
facie stage of a termination case, a court must examine plaintiff’s evidence
independent of the nondiscriminatory reason ‘produced’ by the defense as its reason
for terminating plaintiff.”
Stated otherwise, “[a] court must evaluate whether a
plaintiff established [her] qualifications independent of the employer’s proffered
7
nondiscriminatory reasons for discharge.” Cicero v. Borg-Warner Auto., Inc., 280
F.3d 579, 585 (6th Cir. 2002) (citing Cline, 206 F.3d at 660-61). Based upon this
precedent, because GE relies upon Kaufman’s poor attendance record as its reason
for terminating her employment, the Court may not consider Kaufman’s attendance
in determining whether she was qualified for her position. See Sokolnicki v.
Cingular Wireless, LLC, 331 F. App’x 362, 367 (6th Cir. 2009) (district court erred
by using policy violations relied upon by the defendant as its reason for discharging
the plaintiff to evaluate whether she was qualified).
Aside from her attendance, GE presents no reason why Kaufman was
unqualified for her position as an assembly line worker, nor does the record contain
such a suggestion.
Kaufman has met her burden on the third element of her prima
facie case.
B. Similarly-Situated Employees
To establish the final element of her prima facie case, Kaufman must show
that she was either “replaced by a person outside the protected class or treated
differently than similarly situated nonminority employees.” Tennial, 840 F.3d at
303 (6th Cir. 2016).
Because GE replaced Kaufman with another African-
American employee, see [DN 13-9 at 3], she must pursue her claim under the latter
theory.
However, this case is somewhat unique.
GE contends Kaufman was not
similarly situated to Turner, Reece, or Roby because of her poor attendance – the
same reason it offers as its legitimate, non-discriminatory reason for Kaufman’s
8
termination.
If Kaufman establishes her prima facie case, the burden will shift to
GE to demonstrate its firing of Kaufman was non-discriminatory.
Assuming GE
does so, the burden will shift back to Kaufman to show GE’s proffered justification
is pretextual.
One way Kaufman may prove pretext is by presenting “proof that
[GE] treated similarly situated Caucasian employees differently when they engaged
in acts of comparable seriousness.” Tennial, 840 F.3d at 303 (quoting McDonnell
Douglas, 411 U.S. at 804)
The problem here is apparent.
If the Court concludes Kaufman was
similarly situated to her fellow employees at the prima facie stage, it seems like it
would also be compelled to conclude that Kaufman has shown her termination was
pretextual.
evidence.
This is because both inquiries may be satisfied by showing the same
However, the Sixth Circuit “caution[s] against conflating the fourth
prong of the prima facie case—comparison to similarly situated individuals—with
the subsequent inquiry regarding whether the employer's proffered justification for
the adverse job action is pretextual.”
Elgabi v. Toledo Area Reg'l Transit Auth.,
228 F. App'x 537, 541 n.2 (6th Cir. 2007) (citing White v. Columbus Metro. Hous.
Auth., 429 F.3d 232, 242 (6th Cir. 2005)).
The court in Elgabi went on to say that
“[w]here the challenged decision is disciplinary in nature . . . the concern of
conflating the steps of McDonnell Douglas analysis are met so long as there are
clear distinctions in the conduct of the employees in question.”
Id.
Other courts have addressed this same conundrum. Some treat the fourth
element of the plaintiff’s prima facie case identically to the second element, and
9
totally disregard the defendant’s proffered non-discriminatory reason for its adverse
action when determining whether the plaintiff and the comparators were similarly
situated. See, e.g., Bronski v. Northwest Airlines, Inc., No. 01-2394-MA, 2003 WL
21010322, at *4 n.1 (W.D. Tenn. Feb. 28, 2003).
Yet others, like the court in Bush
v. American Honda Motor Co., Inc., 227 F. Supp. 2d 780, 792-93 (S.D. Ohio 2002),
hold that when the plaintiff does not contest the underlying factual basis of the
employer’s allegations against her, the employer’s reason for discharge may be
considered at the prima facie stage.
This Court believes the latter approach is the
correct one, because as the Bush court recognized, “the case law of the Sixth Circuit
demonstrates that the differences between the alleged conduct of the plaintiff and
that of other employees may be considered at the prima facie stage,” at least when
“the plaintiff does not draw the underlying facts into dispute.” Id.
Here, Kaufman does not seriously dispute the veracity of GE’s claim that she
missed about thirty-six hours of work during her probationary period, the vast
majority of which was undocumented. Because she does not draw the underlying
facts into dispute, the Court may properly compare her conduct to that of other
employees at the prima facie stage.
In doing so, it becomes apparent that
Kaufman has failed to make an initial showing that she was similarly situated to
Nicole Turner, Melissa Reece, or Stephanie Roby.
(1) Nicole Turner
The details surrounding Nicole Turner, Kaufman’s first potential comparator,
are scant.
During her deposition, Kaufman testified that a GE Team Lead named
10
“Theresa” called her shortly after her termination and told her that Turner had her
probation extended, despite missing twice as much work as Kaufman.
154-56, 236-38, 273.]
[DN 18-1 at
GE says these assertions are incorrect, and Turner neither
had absences during her probationary period nor had that period extended.
[DN
20 at 2.]
More importantly, though, the statements made by Theresa and repeated by
Kaufman are inadmissible hearsay.
On summary judgment, the Court may not
consider hearsay evidence. Carter v. Univ. of Toledo, 349 F.3d 269, 274 (6th Cir.
2003).
Kaufman presents no other evidence regarding Nicole Turner other than
Theresa’s statements, so in order for the Court to consider Turner a similarly
situated employee, Kaufman must introduce sufficient evidence showing that the
statements fall under a hearsay exception or exclusion.
Med. Ctr. at Elizabeth
Place, LLC v. Atrium Health Sys., 817 F.3d 934, 944 (6th Cir. 2016).
Kaufman
argues that Theresa’s statements are admissible as non-hearsay under Federal
Rule of Evidence 801(d)(2)(D).
That rule provides, in pertinent part, that a
statement is not hearsay if it “is offered against an opposing party and . . . was
made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed.”
Fed. R. Evid. 801(d)(2)(D).
The Sixth Circuit
has clarified that “Rule 801(d)(2)(D) is designed to bind the employer where one of
its managerial employees makes a statement within the scope of the employee’s
duties as a manager.” Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 722
(6th Cir. 2006) (citations omitted).
11
Kaufman has not met her burden to show that Theresa’s statements fall
under Rule 801(d)(2)(D).
She cannot recall Theresa’s last name, see [DN 18-1 at
153], nor has she provided any evidence to substantiate Theresa’s statements.
Moreover, Kaufman acknowledges that “Team Lead” employees are union members.
[DN 18-1 at 260-61.]
As such, case law supports the notion that Theresa, whoever
she may be, did not speak on GE’s behalf when she called Kaufman and told her a
Caucasian employee was given more favorable treatment. See Bailey v. USF
Holland, Inc., 444 F. Supp. 2d 831, 848 (M.D. Tenn. 2006) (Title VII plaintiff could
not testify to hearsay statements made by a union representative regarding the
representative’s conversation with a manager); Wesley-Dickson v. Warwick Valley
Cent. Sch. Dist., 586 F. App’x 739, 744 (2d Cir. 2014) (in discrimination case, union
representative’s statements did not qualify as admissions by employer).
Because
Kaufman offers no evidence regarding Nicole Turner’s employment at GE beyond
Theresa’s hearsay statements, she may not rely upon Nicole Turner as a similarlysituated employee.
(2) Melissa Reece and Stephanie Roby
GE argues that Kaufman is not similarly situated to either Melissa Reece or
Stephanie Roby, her other proposed comparators, because Kaufman’s absences were
both more excessive and undocumented.
As detailed above, Reece and Roby each
missed about twenty-one hours of work during their respective probationary
periods.2
See [DN 18-13 at 1; DN 20 at 2; DN 18-16 at 1.]
Each employee
Kaufman claims in her briefing that Reece missed 68.2 hours, not twenty-one hours as GE claims.
[DN 18 at 12.] However, as explained Lewis’s declaration, Kaufman’s calculation incorrectly
2
12
provided documentation for all of her absences.
[DN 20 at 2, 4-5.]
Additionally, a
portion of Roby’s absences was excused. [DN 18-16 at 1; DN 20 at 4-5.] Both
Reece and Roby had their probation extended for one month, and were subsequently
kept on at GE.
See [DN 18-10 at 1; DN 18-11 at 1.]
The Sixth Circuit directs “that to be deemed ‘similarly-situated’ in the
disciplinary context, ‘the individuals with whom the plaintiff seeks to compare
his/her treatment must have dealt with the same supervisor, have been subject to
the same standards and have engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or
the employer's treatment of them for it.’”
Ercegovich v. Goodyear Tire & Rubber
Co., 154 F.3d 344, 352 (6th Cir. 1998) (quoting Mitchell v. Toledo Hosp., 964 F.2d
577, 583 (6th Cir. 1992)). However, “[t]he nonprotected employee need not be
identical in every way in order to be a proper comparator.
Instead, the plaintiff
must show that the comparator is similarly situated in all relevant aspects and has
engaged in acts of comparable seriousness.” Tennial, 840 F.3d at 304 (citing Bobo
v. United Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012)).
Here, Kaufman, Reece, and Roby were hired within a week of each other,
were working in the same department, and were subject to the same attendance
policy.
See [DN 18-19.] Thus, the relevant inquiry at this stage is whether
Kaufman has made a prima facie showing that her conduct was sufficiently similar
includes hours when the factory was closed. [DN 20 at 2.] On summary judgment, the Court need
not adopt a version of facts that is “blatantly contradicted by the record, so that no reasonable jury
could believe it.” Thomas v. City of Lansing, 410 F. App’x 922, 931 (6th Cir. 2011) (quoting Scott v.
Harris, 550 U.S. 372, 380 (2007)).
13
to Reece and Roby’s conduct, such that the three employees may be considered
similarly situated. During her six-month probationary period, Kaufman missed
thirty-six hours of work. [DN 13-4 at 2.]
All but eight hours were undocumented,
and none were excused. See [id.; DN 20 at 4.] In contrast, Reece and Roby each
missed approximately twenty-one hours during their probationary periods.
at 2; DN 18-16 at 1.]
Both employees provided documentation for all their
absences, and at least four hours of Roby’s absences were excused.
5; DN 18-16 at 1.]
[DN 20
[DN 20 at 2, 4-
On these facts, this Court cannot say that Kaufman was
similarly situated to either Reece or Roby.
This conclusion might be different if the only difference between Kaufman
and Reece and Roby was the number of hours missed – after all, Kaufman missed
only two days more than Reece and Roby over the course of six months. Even the
cases cited by GE suggest that something more than just the amount of absences is
necessary to distinguish two employees who are similarly situated in all other
respects. See Barlow v. Triden Const. Supply, Inc., No. 3:01-CV-271-H, 2002 WL
927422, at *5 (W.D. Ky. Apr. 26, 2002) (plaintiff’s proposed comparators had fewer
absences, had accrued leave, and were subject to different leave rules); Hansbrough
v. Titlemax of Tenn., Inc., 977 F. Supp. 2d 859, 869 (W.D. Tenn. 2013) (plaintiff had
attendance issues and violated other company polices); Richardson v. Rock City
Mech. Co., LLC, No. 3:09-0092, 2010 WL 2650225, at *11 (M.D. Tenn. June 28,
2010) (proposed comparator’s time off was approved).
14
But here, there is indeed something else that sets Kaufman apart.
Unlike
Reece and Roby, twenty-eight of Kaufman’s thirty-six missed hours was
unaccounted for.
GE’s attendance policy makes clear that supervisors take into
account an employee’s reasons for missing work when deciding what corrective
action needs to be taken. See [DN 18-19 at 2.] What’s more, GE’s letters to
Kaufman, Reece, and Roby demonstrate that GE distinguishes between documented
and undocumented absences. GE’s letter to Kaufman states, “Since you started
your employment at GE on April 13, 2012, our records show that you have been
absent, tardy or have left early on more than one occasion.
This letter is to inform
you that because you have not provided satisfactory reasons or documentation for
your absences, your employment will be terminated effective today, 10/12/12.”
[DN
18-7 at 1 (emphasis added).] GE’s letters to Reece and Roby are identical to each
other, but different than Kaufman’s: “Since you started your employment at GE on
April 5, 2012, our records show that you have been absent and/or tardy on more
than one occasion. This letter is to inform you that it has been determined that we
will be extending your probationary period one month.”
[DN 18-10 at 1; DN 18-11
at 1.]
From these letters, it is apparent that Kaufman was terminated not only
because she missed thirty-six hours of work during her six-month probation, but
also because she did “not provide[] satisfactory reasons or documentation” for over
three-fourths of those hours. [DN 18-7 at 1.]
This clearly distinguishes her from
Reece and Roby, who accounted for the entirety of the twenty-one hours they
15
missed. Again, to make out the fourth element of her prima facie case, Kaufman
must show that Reece and Roby “[are] similarly situated in all relevant aspects and
ha[ve] engaged in acts of comparable seriousness.” Tennial 840 F.3d at 304
(citation omitted). Kaufman’s failure to document the overwhelming majority of
her absences is certainly relevant to the present inquiry, which centers upon the
reason GE terminated her employment.
And in this relevant aspect, Kaufman is
simply not comparable to Reece or Roby.
C. Pretext
Kaufman’s failure to establish that she was “treated differently than
similarly situated nonminority employees” is fatal to her discrimination claim.
Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 303 (6th Cir. 2016) (citation
omitted).
Under the burden-shifting framework of McDonnell Douglas, the Court
need not proceed any further. However, even assuming Kaufman had established
all four elements of her prima facia disparate treatment claim, GE would still be
entitled to summary judgment.
After the plaintiff satisfies her burden at the
prima facie stage, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its action. Hollins v. Atl. Co., 188 F.3d 652, 658 (6th
Cir. 1999).
Here, GE has done just that, explaining that it terminated Kaufman’s
employment because of her excessive, undocumented absences during her six-month
probationary period.
The burden now shifts back to Kaufman to demonstrate GE’s proffered
reason is merely pretext for unlawful discrimination. Id. Kaufman may
16
demonstrate pretext “by showing that the proffered reason (1) has no basis in fact,
(2) did not actually motivate the defendant’s challenged conduct, or (3) was
insufficient to warrant the challenged conduct.” Elgabi v. Toledo Area Reg'l
Transit Auth., 228 F. App'x 537, 540 (6th Cir. 2007) (quoting Wexler v. White's Fine
Furniture, 317 F.3d 564, 576 (en banc) (6th Cir. 2003)).
As noted above, “evidence
‘[e]specially relevant to such a showing’ is proof that an employer treated similarly
situated Caucasian employees differently when they engaged in acts of comparable
seriousness.” Tennial, 840 F.3d at 303 (quoting McDonnell Douglas Corp. v. Green,
411 U.S. 792, 804 (1973)); see also Bush v. American Honda Motor Co., Inc., 227 F.
Supp. 2d 780, 792-93 (S.D. Ohio 2002) (explaining that evidence of differential
treatment goes to the second and third methods of showing pretext).
In Part III.B.2 of this Opinion, the Court explained how Kaufman’s failure to
provide documentation for the bulk of her absences prevents her from making a
prima facie showing that Melissa Reece and Stephanie Roby were similarly situated
but treated differently.
For this same reason, Kaufman cannot show her firing was
pretextual by pointing to GE’s differential treatment of Reece and Roby.
GE did
indeed treat Kaufman differently, but it had good reason for doing so – Reece and
Roby explained why they were absent, and Kaufman did not.
Aside from GE’s
justifiably different treatment, Kaufman brings forth no other evidence of pretext.
Her discrimination claim fails at the final step of the McDonnell Douglas analysis
as well.
17
IV. Conclusion
In assessing a plaintiff’s claim of employment discrimination, “[c]ourts are
not intended to act as ‘super personnel departments to second guess an employer's
facially legitimate business decisions.’” Adams v. Tenn. Dep't of Fin. & Admin.,
179 F. App'x 266, 272 (6th Cir. 2006) (quoting Bush v. Am. Honda Motor Co., 227 F.
Supp. 2d 780, 797 (S.D. Ohio 2002)).
Even viewing the evidence in the light most
favorable to Kaufman, she has not met her burden to show she was treated
differently than any similarly situated employees, or that GE’s stated reasons for
terminating her employment were pretextual.
Accordingly, GE is entitled to
summary judgment.
An appropriate order and judgment will follow.
May 26, 2017
CC: Counsel of Record
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?