Dyer v. Wal-Mart Stores, Inc.

Filing 11

ORDER Granting Defendant's 6 Motion for Summary Judgment. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ISABELITA DYER,
Plaintiff,

Case No. 16-cv-12496

v.

Honorable Thomas L. Ludington

WAL-MART STORES, INC.,
Defendant.
__________________________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On July 1, 2016 Plaintiff Isabelita Dyer filed a complaint against Defendant Wal-Mart
Stores, Inc, alleging that Defendant wrongfully terminated her employment. See Compl. ECF
No. 1. Plaintiff claims that Defendant Wal-Mart terminated her from her position as a Deli
Department Manager after she requested – but did not take – leave pursuant to the Family
Medical Leave Act (“FMLA”), 29 U.S.C. § 2611, et seq.. She also alleges that she was
terminated from her position because of her national origin in violation of Title VII of the Civil
Rights Act (“Title VII”), 42 U.S.C. § 200-e2(a), and Michigan’s Elliott-Larsen Civil Rights Act
(“ELCRA”), Michigan Compiled Law 37.2202(1)(a). After the close of discovery, on February
23, 2017, Defendant moved for summary judgment as to each of Plaintiff’s claims. See Mot.
Summ. J., ECF No. 6. For the reasons stated below, Defendant’s motion will be granted.
I.
Plaintiff Isabelita Dyer was born and raised in the City of Villareal in Samar, Philippines.
See Dyer Dep. 10, ECF No. 6-2. After moving to the United States, in 2002 Plaintiff began
working for a Sam’s Club location in Virginia Beach, Virginia. Id at 15-16. Upon moving to
Michigan in 2005, she transferred to a Sam’s Club location in Saginaw, Michigan. Id. at 24-25;

ECF No. 9-3. Plaintiff then transferred from Sam’s Club to a Wal-Mart store located on
Brockway Road in Saginaw, Michigan, on September 16, 2006. See Job Offer, ECF No. 9-4.
Plaintiff initially worked as a bakery packager and cake decorator. See Dyer Dep. 26-27.
However, in 2009 she was assigned to the position of Deli Department Manager. Id. at 27.
Throughout her time as a Deli Manager, Plaintiff Dyer received largely solid performance
reviews, but was regularly advised to work on training and building relationships with the
associates in her area. See ECF No. 9-5.
A.
In September of 2014, Brenda Ortega became the manager of all “Fresh” areas in the
Brockway Wal-Mart, which meant that she became Plaintiff’s supervisor. See Ortega Dep. 5-6,
ECF No. 6-14. Plaintiff Dyer believed that Ms. Ortega treated her disrespectfully. In support of
this assertion, Plaintiff claims that Ms. Ortega regularly informed Plaintiff that she had trouble
understanding her, and made comments such as, “[s]low down Lita. I can’t understand you
because of your accent,” or “[s]low down Lita. Take a deep breath. I can’t understand you.” See
Dyer Dep. 37. Plaintiff concedes that she often spoke quickly. Id.
On September 26, 2014 Ms. Ortega issued Plaintiff a First Written Coaching under WalMart’s “Coaching for Improvement” disciplinary policy.1 The basis for the Coaching was stated
as follows: “Isabelita has had some conversations with associates that have not been interpreted
as being spoken to with respect. This has occurred on several different occasions with different
associates.” See First Coaching, ECF No. 6-7. Plaintiff was advised to treat her associates with

1

Defendant Wal-Mart maintains a disciplinary policy called “Coaching for Improvement”, which provides for three
levels of written coaching. Levels of coaching may be skipped in certain situations, and employees may only receive
one of each level of coaching in any 12-month period. An employee is subject to termination if she performs her job
unacceptably after having received a Third Written Coaching within the preceding 12 months.

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respect, and warned that further disrespectful behavior could lead to “Second Written up to and
including Termination.” Id.
Plaintiff Dyer received a Second Written Coaching from Ms. Ortega on February 1, 2015,
after Ms. Ortega discovered expired meat product in the deli. See Second Coaching, ECF No. 67. Some of the relevant sell-by dates had recently passed, but Ms. Ortega discovered Prima Deli
Forest Ham in the meat case with a sell-by date of January 1, 2015, or a month before the
Coaching was issued. Id. The Coaching advised Plaintiff to check expiration dates on a daily
basis, first thing in the morning. Id. It also warned Plaintiff that the next level of action would be
a “Third Written up to and including Termination.” Id. Plaintiff does not dispute that expired
product was discovered. Instead, Plaintiff argues that she had delegated the task of checking for
expired food, as Ms. Ortega allowed her to do, and therefore was not responsible for the
violations. See Dyer Dep. 60-61. Plaintiff concedes, however, that she was still responsible for
double checking the work of her subordinates in order to ensure that they completed their
assignments. Id. at 62.
B.
In April of 2014, Plaintiff informed Ms. Ortega that she would need to take FMLA leave
in order to care for her husband while he recovered from surgery. See Ortega Dep. 16-17. Ms.
Ortega referred Plaintiff to the personnel department. Id. On April 10, 2015 Plaintiff’s request
was referred to Defendant’s third party claims administrator, Sedgwick. See ECF No. 9-11.
That same day, April 10, 2015, Sedgwick sent Plaintiff a letter stating that it had received her
request to take leave under the FMLA from April 17, 2015 to July 8, 2015. See ECF No. 9-13.
The letter informed Plaintiff that her request was conditionally approved, but that a final decision
could not be made until Plaintiff proved that she met certain eligibility requirements and

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provided medical documentation in support of her request. Id. The supporting documentation
was due by April 30, 2015. Id.
On April 16, 2015 – the day before Plaintiff’s FMLA leave was scheduled to begin – Ms.
Ortega directed Plaintiff Dyer to train an associate named Victoria Schaefer to perform
Plaintiff’s job responsibilities. See Dyer Dep. 112. In response, Plaintiff informed Ms. Ortega
that she would not require the FMLA leave as requested.

Id.

Nevertheless, Ms. Ortega

instructed Plaintiff to continue to train Ms. Schaefer. Id. Plaintiff testified that it made sense to
have somebody trained to perform her job responsibilities for when she had days off work. Id. at
112-13.
After Plaintiff Dyer did not submit the required documentation, Sedgwick followed up by
calling Plaintiff on May 8, 2015. Sedgwick’s records reflect that a gentleman who answered the
telephone stated that Plaintiff did not require any leave. See ECF No. 6-9 Pg. ID 243. In her
deposition, Plaintiff confirmed that she ultimately did not require FMLA leave, and that her
husband informed the caller from Sedgwick that she did not require the leave. See Dyer Dep.
109.

Based on the phone call and on the fact that Plaintiff did not supply the required

documentation, on May 8, 2015, Sedgwick denied Plaintiff’s request for FMLA leave. See ECF
No. 6-9 Pg. ID 250. In summary, Plaintiff did not take any leave under the FMLA, but did take a
few days off under Wal-Mart’s leave policy.
C.
A few weeks after Plaintiff returned from her leave, on May 12, 2015, Defendant
received an anonymous complaint against Plaintiff via its Global Ethics hotline. See Barton Dec.
¶ 7, ECF No. 6-9; See also ECF No. 6-9 Pg. ID 215. The caller alleged that Plaintiff falsified
expiration dates on food items by placing new stickers over old expired stickers, most recently

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over the weekend with tapioca pudding. The caller also alleged that Plaintiff cross contaminated
food and did not wash her hands after her duties. Finally, the caller alleged that Plaintiff was
rude to employees, had anger management issues, and practiced favoritism. Id. See also ECF No.
6-9 Pg. ID 235. The complaint identified three deli associates who were allegedly witnesses to
these acts: Ms. Schaefer, Dawn Turner, and Sache’ Young (together the “Deli Associates”). See
Barton Dec. ¶ 8.
Darrell Hudson, Co-Manager of the Brockway Road Wal-Mart location, was assigned to
investigate the complaint. Id. at ¶ 9. He proceeded to conduct interviews of the Deli Associates
and of Plaintiff’s supervisor, Ms. Ortega, on May 14, 2015. ECF No. 6-9 Pg. ID 235. He also
received written statements from the Deli Associates and Ms. Ortega. In her statement, Ms.
Young alleged that Plaintiff treated her and her fellow associates with disrespect, and on one
occasion mixed old expired macaroni with new macaroni. See ECF No. 6-9 Pg. ID 190.

Ms.

Schaefer claimed in her statement that Plaintiff had falsified the expiration dates of expired
salads on May 13, 2015. Id. at Pg. ID 191-92. Ms. Turner’s statement alleged that Plaintiff had
been rude to a customer on May 12, 2015. Id. at Pg. ID 193-94. Finally, Ms. Ortega’s statement
alleged that Plaintiff had not properly checked the temperature of a chicken she was cooking on
May 14, 2015. Id. Pg. ID 196-97.
Plaintiff Dyer, for her part, denied all of the allegations against her. In her deposition,
Plaintiff testified that she had received a warning from a fellow employee, Beatrice Brown, that
the Deli Associates were conspiring to get her fired.

Plaintiff’s allegation is partially

substantiated by the deposition testimony of Ms. Brown, who testified that Ms. Schaefer and an
employee named Sue told her “they was going to make up a fake statement to get [Plaintiff] out
of there.” See Brown Dep. 4, ECF No. 9-12. Specifically, Ms. Brown explained that while

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Plaintiff was taking her vacation time, “Victoria was telling me that they was trying to get
together to get [Plaintiff] out of there; they wanted to see [Plaintiff] go. And her and Sue was
going to write up a statement, a false statement to get her out.” Id. When asked if Victoria and
Sue explained why they wanted Plaintiff to be fired, Brown testified that “they said that
[Plaintiff] was kind of mean, yeah.” Id. at 8. According to Ms. Brown, Victoria and Sue did not
mention Ms. Ortega during the course of the conversation. Id. Ms. Brown allegedly informed
Plaintiff of this plot when Plaintiff returned to work. Id. at p. 5-6.
Notwithstanding Plaintiff’s claims of innocence, disciplinary action was recommended.
Because Plaintiff already had two outstanding Written Coachings, further disciplinary action
would generally have resulted in a Third Written Coaching. See ECF No. 6-9, Pg. ID 236.
However, because the allegations against Plaintiff involved ethical issues involving food safety
and inappropriate conduct, the issue was referred to Defendant’s Global Ethics office. See ECF
No. 6-9, Pg. ID 213. Ethics Manager Brandon Hudson (no relation to Darrell Hudson) then
referred the investigation to Kimberly Barton, a human resource manager for Defendant. Id. at
Pg. ID 213. On June 22, 2015, Ms. Barton emailed Darrell Hudson to inform him that Ethics
Manager Brandon Hudson recommended terminating Plaintiff’s employment. See ECF No. 6-9,
Pg. ID 222. Therefore, on June 25, 2015, Darrell Hudson terminated Plaintiff’s employment for
gross misconduct. Id. at Pg. ID 232. Defendant then assigned a Caucasian employee to Plaintiff’s
former position. Plaintiff responded by filing the present action, arguing that she had been
terminated because of her national origin and in retaliation for exercising a right under the
FMLA.
II.

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Defendant Wal-Mart now moves for summary judgment. See Mot. Summ. J., ECF No. 6.
A motion for summary judgment should be granted if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The moving party has the initial burden of identifying where to look in the
record for evidence “which it believes demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
opposing party who must set out specific facts showing “a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). The opposing party may not
rest on its pleadings, nor “rely on the hope that the trier of fact will disbelieve the movant’s
denial of a disputed fact but must make an affirmative showing with proper evidence in order to
defeat the motion.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (internal
quotations omitted). The Court must view the evidence and draw all reasonable inferences in
favor of the non-movant and determine “whether the evidence presents a sufficient disagreement
to require submission to a [fact-finder] or whether it is so one-sided that one party must prevail
as a matter of law.” Anderson, 477 U.S. at 251-52.
A.
Defendant first moves for summary judgment as to Plaintiff’s claim of FMLA retaliation.
The FMLA makes it unlawful for any employer “to interfere with, restrain, or deny the exercise
of or the attempt to exercise, any right provided [by the Act],” 29 U.S.C. § 2615(a)(1), or to
“discharge or in any other manner discriminate against any individual for opposing any practice
made unlawful by [the Act].” Id. at § 2615(a)(2). The central issue raised by the retaliation
theory is “whether the employer took the adverse action because of a prohibited reason or for a
legitimate nondiscriminatory reason.” Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d

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274, 282 (6th Cir. 2012) (quoting Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006)).
An employer’s intent is relevant because FMLA retaliation claims “impose liability on
employers that act against employees specifically because those employees invoked their FMLA
rights.” Id. (citing Edgar, 443 F.3d at 508) (emphasis original).
i.
Where a plaintiff sets forth an FMLA retaliation claim based on circumstantial evidence
alleging a single motive for discrimination, it is evaluated under the familiar McDonnell Douglas
burden-shifting framework. Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). Plaintiff
therefore has the initial burden of establishing a prima facie case of retaliation by demonstrating
the following:
(1) she was engaged in an activity protected by the FMLA; (2) the employer knew
that she was exercising her rights under the FMLA; (3) after learning of the
employee’s exercise of FMLA rights, the employer took an employment action
adverse to her; and (4) there was a causal connection between the protected
FMLA activity and the adverse employment action.
Donald, 667 F.3d at 761.
Once a plaintiff establishes a prima facie case the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. at
761-62. A defendant is not required to meet this burden by a preponderance of the evidence, but
rather “the employee’s prima facie case of discrimination will be rebutted if the employer
articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer
need only produce admissible evidence which would allow the trier of fact rationally to conclude
that the employment decision had not been motivated by discriminatory animus.” Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248 (1981).

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If a Defendant satisfies this burden of production, then the burden shifts back to Plaintiff
to demonstrate that Defendant’s proffered reason for terminating her employment was pretextual.
A plaintiff generally shows pretext by showing that the proffered reason: (1) had no basis in fact;
(2) was insufficient motivation for the employment action; or (3) did not actually motivate the
adverse employment action. Smith v. Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir. 1998);
Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (overruled on
other grounds). However, as noted by the Sixth Circuit, “[t]he three-part test need not be applied
rigidly. Rather, [p]retext is a commonsense inquiry: did the employer fire the employee for the
stated reason or not?” Blizzard v. Marion Technical College, 698 F.3d 275, 287 n.6 (6th Cir.
2012).
ii.
Regardless of whether Plaintiff has established a prima facie case of retaliation, Plaintiff
is unable to meet her burden at the pretext stage. Even assuming Plaintiff Dyer can legally state
a claim of retaliation based on a withdrawn request for FMLA leave, and even assuming
Defendant had knowledge of Plaintiff’s withdrawn FMLA request, Plaintiff Dyer has not
presented any evidence that she was terminated in retaliation for her FMLA request. Defendant
has articulated a legitimate, nondiscriminatory reason for terminating Plaintiff’s employment.
Specifically, Defendant alleges that Plaintiff was terminated for treating her fellow employees
with disrespect and for violating Defendant’s food safety policies. Plaintiff does not argue that
such acts would be insufficient to warrant an adverse employment action.
Plaintiff cannot demonstrate that Defendant’s proffered reasons for terminating her had
no basis in fact because Defendant is protected by the “honest belief rule.” The honest belief rule
provides that “as long as an employer has an honest belief in its proffered nondiscriminatory

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reason for discharging an employee, the employee cannot establish that the reason was pretextual
simply because it is ultimately shown to be incorrect.” Majewski v. Automatic Data Processing,
Inc., 274 F.3d 1106, 1117 (6th Cir. 2001). To determine whether Defendant had an honest belief
that Plaintiff violated food safety procedures and was disrespectful to her fellow employees,
courts must look “to whether [Defendant] can establish its reasonable reliance on the
particularized facts that were before it at the time the decision was made.” Braithwaite v. Timken
Co.¸258 F.3d 488, 494 (6th Cir. 2001). In this regard, the decisional process used by the
employer need not be optimal or leave “no stone unturned.” Smith v. Chrysler Corp., 155 F.3d at
807. “Rather, the key inquiry is whether the employer made a reasonably informed and
considered decision before taking an adverse employment action.” Id.
Plaintiff does not argue that Defendant’s decisional process was insufficient or improper.
And Plaintiff has presented no evidence that Defendant knew or should have known that the
allegations against Plaintiff were not based in fact. Instead, the record evidence demonstrates
that Defendant conducted a thorough investigation of the complaints made against Plaintiff. The
investigation was led by a disinterested supervisor, Darrell Hudson, who conducted interviews,
obtained written statements, and ultimately terminated Plaintiff’s employment upon the
recommendation of Wal-Mart’s Global Ethics Department.
Plaintiff also cannot demonstrate that Defendant’s proffered reason did not actually
motivate the termination of her employment. To establish pretext by advancing some evidence
that the proffered explanation did not actually motivate the discriminatory action, a plaintiff can
“attack[] the employer’s explanation by showing circumstances which tend to prove an illegal
motivation was more likely than that offered by the defendant. In other words, the plaintiff
argues that the circumstantial evidence of discrimination makes it more likely than not that the

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employer’s explanation is a pretext, or coverup.” Smith v. Leggett Wire Co., 220 F.3d 752, 759
(6th Cir. 2000) (citations and quotations omitted). To make a showing of pretext in this manner,
“plaintiff may not rely simply upon his prima facie evidence but must, instead introduce
additional evidence of ... discrimination.” Manzer, 29 F.3d at 1084.
In this vein, “temporal proximity is insufficient in and of itself to establish that the
employer’s nondiscriminatory reason for discharging an employee was in fact pretextual.”
Skrjanc, 272 F.3d at 317. Here, temporal proximity is the only evidence Plaintiff presents in
support of her FMLA retaliation claim. While Plaintiff claims that she heard a rumor that
Defendant listed her position as open after she requested leave, Plaintiff has no personal
knowledge that such a posting was created. See Dyer Dep. 111. Plaintiff also has not explained
how she knew that the posting was for her specific position, and not for a deli manager position
on another shift or at another store. Finally Plaintiff has not explained why such a posting would
be improper. If Plaintiff had taken leave as she initially requested her position would have been
open for 12 weeks, during which time Defendant would have needed to find coverage.
For the purpose of employment discrimination cases, “[i]t is not enough ... to disbelieve
the employer; the factfinder must believe the plaintiff’s explanation of intentional
discrimination.” Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 675 (6th Cir.
2008) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000)). Even if
Plaintiff is correct that her termination was the result of the Deli Associates’ conspiracy to bring
false accusations against her, Plaintiff has presented no evidence that the Deli Associates were
motivated by her request for FMLA leave. Instead, Ms. Brown’s testimony reflects that Ms.
Schaefer and a woman named Sue were motivated by their belief that Plaintiff “was kind of
mean.” See Brown Dep. 8. And while Plaintiff speculates that Ms. Ortega was part of the

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conspiracy to have her terminated, Plaintiff has presented no evidence in support of this claim
other than her own suspicions. Similarly, while Plaintiff Dyer personally believes that Ms.
Ortega supplied a statement against her in retaliation for her FMLA request, a plaintiff’s
“feeling” that retaliation or discrimination is the cause of an adverse employment action is
insufficient to show pretext; the plaintiff must offer evidence that the adverse action was actually
in retaliation for specific protected conduct. See Booker v. Brown & Williamson Tobacco Co.,
879 F.2d 1304 (6th Cir. 1989). Plaintiff Dyer’s suggestion that Ms. Ortega disliked her is
insufficient to demonstrate retaliation absent any evidence that Ms. Ortega disliked her – and
acted to have her employment terminated – for an unlawful reason. Because Plaintiff has not
met this burden, she cannot proceed on her FMLA claim.
B.
Defendant also moves for summary judgment on Plaintiff’s claims of national origin
discrimination. Title VII prohibits discrimination in employment based on the employee’s
national origin. See 42 U.S.C. § 2000e-2(a)(1). As explained by the Supreme Court, “national
origin” refers to “the country where a person was born, or more broadly, the country from which
his or her ancestors came.” Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973).
i.
Plaintiff first argues that Ms. Ortega’s statements about her accent and speaking style
constitute direct evidence of national origin discrimination. “Direct evidence of discrimination is
evidence which, if believed, would prove the existence of a fact (i.e., unlawful discrimination)
without any inferences or presumptions.” Lautner v. Am. Tel. & Tel. Co., 106 F.3d 401 (6th Cir.
1997) (citations and quotations omitted). Where a plaintiff produces credible direct evidence of
discrimination, “in the absence of an alternative, non-discriminatory explanation for that

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evidence, there exists a genuine issue of material fact suitable for submission to the jury without
further analysis by the court.”

Norbuta v. Loctite Corp., 1 F. App’x 305, 311–12 (6th Cir.

2001).
The alleged discriminatory nature of the Ms. Ortega’s remarks requires an inference that
the comments about Plaintiff’s speech were actually veiled insults about Plaintiff’s Filipino
heritage. However, as Plaintiff Dyer’s supervisor, Ms. Ortega had a legitimate interest in being
able to communicate with her in English. Furthermore, because Plaintiff Dyer worked in the
field of customer service, Ms. Ortega had a legitimate interest in ensuring that Plaintiff’s
customers could also understand her. See Fong v. Sch. Bd. of Palm Beach Cty., Fla., 590 F.
App’x 930, 934 (11th Cir. 2014). Because a non-discriminatory explanation for Ms. Ortega’s
remarks exists, the remarks do not constitute direct evidence of discrimination.
ii.
Where there is no direct evidence of discrimination, a plaintiff may prove discrimination
through circumstantial evidence using the McDonnell Douglas test set forth above. To establish
a prima facie case of national origin discrimination, a Plaintiff must demonstrate that: “(1) [s]he
is a member of a protected class; (2) [s]he was terminated; (3) [s]he was qualified for the
position; and (4) [s]he was replaced by a person outside a protected class or was treated
differently than a similarly situated, non-protected employee.” Abdulnour v. Campbell Soup
Supply Co., LLC, 502 F.3d 496, 501 (6th Cir. 2007). While the defendant must then come
forward with a legitimate, non-discriminatory reason for the plaintiff’s termination, the plaintiff
bears the ultimate burden of proving, by a preponderance of the evidence, that she was
terminated because of her national origin. Id.

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Again assuming, without deciding, that Plaintiff Dyer has established a prima facie case
of national origin discrimination, the question becomes whether Defendant’s articulated reason
for firing Plaintiff was pretext for unlawful discrimination. As with her FMLA claim, Plaintiff
does not argue that the conduct she was accused of would be insufficient to warrant an adverse
employment action. Plaintiff is also unable to prove that Defendant’s articulated reason for
terminating her had no basis in fact under the honest belief rule, for the same reasons she was
unable to prevail on her FMLA claim under this method. Sybrandt v. Home Depot, U.S.A., Inc.,
560 F.3d 553, 559 (6th Cir. 2009).
Finally, Plaintiff is unable to meet her burden of proving that national origin
discrimination actually motivated her termination. In support of her claim that she was
terminated because of her national origin, Plaintiff emphasizes (1) Ms. Ortega’s comments about
her speech; (2) the Written Coachings Plaintiff received from Ms. Ortega; and (3) Ms. Ortega’s
alleged participation in the conspiracy to have Plaintiff fired. Essentially, Plaintiff argues that
by submitting a written statement during the course of the investigation, Ms. Ortega infused the
entire investigation with unlawful animus.
Again, Plaintiff has not presented any evidence, other than her own uncorroborated
belief, that Ms. Ortega was part of a conspiracy to have her terminated. And as Plaintiff’s
supervisor, it was Ms. Ortega’s duty to discipline Plaintiff when necessary. The fact that
Plaintiff received Written Coachings from Ms. Ortega is therefore only material if the Written
Coachings were motivated by unlawful discrimination. Plaintiff’s entire case, therefore, hinges
upon her assertion that Ms. Ortega’s comments about Plaintiff’s accent constitute evidence of
national origin discrimination. However, Plaintiff has not alleged that Ms. Ortega mocked
Plaintiff because of her accent or indicated that she was unqualified for her position because of

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her accent. Importantly, Plaintiff also has not presented evidence suggesting that Ms. Ortega’s
comments were motivated by bias against Plaintiff due to her Filipino heritage. Instead, Plaintiff
Dyer’s own testimony is that Ms. Ortega asked Plaintiff Dyer to speak slower so that she could
understand her. Plaintiff Dyer herself acknowledged that she often spoke quickly. The diversity
of the American workplace demands that employees be allowed to seek clarity from one another
without being subject to suit. Ms. Ortega’s statements are therefore insufficient, without more, to
“make[] it more likely than not that the employer’s explanation is a pretext, or coverup.” Smith,
220 F.3d at 759.
Moreover, Plaintiff has not presented any evidence that Defendant should be liable for
Ms. Ortega’s remarks under a theory of “cat’s paw” liability. It is undisputed that Ms. Ortega
was not the decision-maker concerning Plaintiff’s termination. Instead, Co-Manager Darrell
Hudson terminated Plaintiff’s employment upon the recommendation of Ethics Manager
Brandon Hudson and Human Resources Manager Kimberly Barton. In the context of a claim of
antimilitary discrimination, the Supreme Court has explained that, “if a supervisor performs an
act motivated by [unlawful] animus, that is intended by the supervisor to cause an adverse
employment action, and if that act is a proximate cause of the ultimate employment action, then
the employer is liable under the [Act].” Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011); see
also Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 352 (6th Cir. 2012) (applying Staub to a
Title VII action). Plaintiff has presented no evidence that the written statement submitted by Ms.
Ortega was at all related to her difficulty in understanding Plaintiff’s speech. The only allegation
in the written statement supplied by Ms. Ortega was that on one occasion Plaintiff did not
adequately check the temperature of a chicken she was cooking. “An employer will not be liable
for its intermediate employee’s discrimination if the employer’s investigation results in an

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adverse action for reasons unrelated to the supervisor’s original biased action.” Chattman, 686
F.3d at 352 (citing Staub, 562 U.S. at 422). Because Plaintiff has not met her burden of coming
forward with evidence to suggest that Wal-Mart’s stated reason for terminating her was pretext
for national origin discrimination, Plaintiff cannot proceed on her Title VII claim.
C.
Finally, Defendant moves for summary judgment as to Plaintiff Dyer’s ELCRA claim.
The parties agree that claims of national origin discrimination under ELCRA are analyzed under
the same evidentiary standard as Title VII discrimination claims. See Humenny v. Genex Corp.,
390 F.3d 901, 906 (6th Cir. 2004). Plaintiff is thus unable to proceed on her ELCRA claim for
the same reasons that she is unable to proceed on her Title VII claim. Defendant’s motion for
summary judgment will be granted.
III.
Accordingly, it is ORDERED that Defendant’s motion for summary judgment, ECF No.
6, is GRANTED.
It is further ORDERED that Plaintiff’s complaint is DISMISSED with prejudice.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: May 19, 2017

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on May 19, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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