Smith v. The Food Bank of Eastern Michigan
ORDER Adopting 76 Report and Recommendation, Overruling Plaintiff's Objection, Granting Defendant's Motion for Summary Judgment and Dismissing Case. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number 14-13795
Honorable David M. Lawson
Magistrate Judge Anthony P. Patti
THE FOOD BANK OF EASTERN
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION, OVERRULING PLAINTIFF’S OBJECTIONS,
GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT, AND DISMISSING CASE
Plaintiff Tracey Smith filed a complaint representing herself alleging that she was fired from
her job at defendant Food Bank of Eastern Michigan on account of her race, 115 days after she was
hired. The Court referred this case to Magistrate Judge Anthony P. Patti for pretrial management.
Thereafter, the defendant filed a motion for summary judgment. Judge Patti filed a report
recommending that the motion be granted. Believing that the plaintiff had not filed objections to
the report and recommendation, the Court adopted the recommendation and dismissed the case. The
Court vacated that judgment when it discovered that timely objections had been received by the
Clerk of Court but not docketed promptly. The case is now before the Court for fresh review in light
of the motion, response, report, and objections.
The magistrate judge read the pro se complaint as pleading a case under Title VII of the Civil
Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. The record indicates that plaintiff Tracey Smith,
an African American, was hired by the defendant The Food Bank of Eastern Michigan (the Food
Bank) on September 11, 2013 as a Supplemental Nutrition Assistance Program (SNAP) specialist.
She was hired by Adam Dunton, a manager at the Food Bank. On January 3, 2014 — about four
months later — at a termination meeting with Dunton and two other Food Bank representatives, she
was terminated purportedly because of restructuring and the plaintiff’s performance issues.
According to the plaintiff, the real reason she was terminated was because of Dunton’s racial animus
toward African Americans.
Magistrate Judge Patti concluded that the undisputed record did not support the plaintiff’s
allegations and recommended that the defendant’s summary judgment be granted and the case be
dismissed. Smith filed 25 objections to the report and recommendation.
The filing of timely objections to a report and recommendation requires the Court to “make
a de novo determination of those portions of the report or specified findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667
(1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo review requires the
Court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in
order to determine whether the recommendation should be accepted, rejected, or modified in whole
or in part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider the
specific contentions of the parties and to correct any errors immediately,” Walters, 638 F.2d at 950,
enabling the court “to focus attention on those issues — factual and legal — that are at the heart of
the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific
objections to the magistrate’s report made to the district court will be preserved for appellate review;
making some objections but failing to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v.
Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
Judge Patti’s report was responsive to the defendant’s motion for summary judgment.
Summary judgment is appropriate “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).
When reviewing the motion record, “[t]he court must view the evidence and draw all reasonable
inferences in favor of the non-moving party, and determine ‘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.’” Alexander v. CareSource, 576 F.3d 551, 557-58 (6th Cir. 2009)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
“The party bringing the summary judgment motion has the initial burden of informing the
district court of the basis for its motion and identifying portions of the record that demonstrate the
absence of a genuine dispute over material facts.” Id. at 558. (citing Mt. Lebanon Personal Care
Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002)). “Once that occurs, the
party opposing the motion then may not ‘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.” Ibid. (quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th
“[T]he party opposing the summary judgment motion must do more than simply show that
there is some ‘metaphysical doubt as to the material facts.’” Highland Capital, Inc. v. Franklin
Nat’l Bank, 350 F.3d 558, 564 (6th Cir. 2003) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)) (internal quotation marks omitted). A party opposing a motion
for summary judgment must designate specific facts in affidavits, depositions, or other factual
material showing “evidence on which the jury could reasonably find for the plaintiff.” Anderson,
477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to
meet her burden of proof, summary judgment is clearly proper. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St.
Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000). A fact is “material” if
its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d
574, 581 (6th Cir. 2001). “Materiality” is determined by the substantive law claim. Boyd v.
Baeppler, 215 F.3d 594, 599 (6th Cir. 2000). An issue is “genuine” if a “reasonable jury could
return a verdict for the nonmoving party.” Henson v. Nat’l Aeronautics & Space Admin., 14 F.3d
1143, 1148 (6th Cir. 1994) (quoting 477 U.S. at 248).
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an
employer . . . to discriminate against any individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such individual’s race . . . .” 42 U.S.C. §
2000e–2(a)(1). To prove race discrimination under Title VII, the plaintiff must offer evidence that
the defendant took adverse action against her and that race was a motivating factor. Ondricko v.
MGM Grand Detroit, LLC, 689 F.3d 642, 649 (6th Cir. 2012).
With these rules, procedures, and legal principles in mind, the Court will turn to the
As noted above, the plaintiff made 25 objections to the magistrate judge’s report. Objections
3, 8, 9, 12, 13, 14, 15, 18, 21, and 23 are insufficient to warrant review, because they do not identify
any specific defect in the magistrate judge’s report and recommendation, and they do not set forth
any factual basis or legal authority to support a conclusion that the magistrate judge erred. “Overly
general objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d 721,
725 (6th Cir. 2006). “The objections must be clear enough to enable the district court to discern
those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
“‘[O]bjections disput[ing] the correctness of the magistrate’s recommendation but fail[ing] to
specify the findings . . . believed [to be] in error’ are too general,” Spencer, 449 F.3d at 725 (quoting
Miller, 50 F.3d at 380), and “the failure to file specific objections to a magistrate’s report constitutes
a waiver of those objections,” Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).
B. Objections 1, 2, and 25
In the plaintiff’s first, second, and twenty-fifth objections, she argues that the magistrate
judge erred by finding that there is no direct evidence of discrimination committed by the defendant.
She argues that she is not the only individual that filed a lawsuit against the defendant and that such
evidence “speaks for itself.” Id. at 2-3. In support, she points to exhibits 8 and 9 attached to her
response to the summary judgment motion. Neither exhibit, however, amounts to direct evidence
“Direct evidence of discrimination is that evidence which, if believed, requires the
conclusion that unlawful discrimination was [the] motivating factor in the employer’s actions. It
does not require the fact finder to draw any inferences to reach that conclusion.” Sharp v. Aker
Plant Servs. Grp., Inc., 726 F.3d 789, 798 (6th Cir. 2013) (quoting Wexler v. White's Fine Furniture,
Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc), and Amini v. Oberlin Coll., 440 F.3d 350, 359 (6th
Cir. 2006)) (quotation marks omitted). For example, “[d]iscriminatory remarks by decision makers
and those who significantly influence the decision-making process can constitute direct evidence
of discrimination.” Ibid. (citations omitted). But we have none of that here, and the plaintiff’s
exhibits fall far short of the mark.
Exhibit 8 is a copy of the first page of the register of actions of a complaint brought against
the Food Bank by a James Richardson. It does not state the nature of the case or the disposition of
the case against the defendant. Exhibit 9 is the Michigan Department of Civil Rights (MDCR)
investigative report prepared after the investigation of the plaintiff’s complaint to the MDCR. The
report largely repeats the plaintiff’s allegations in this case, although at the end of the report is a
charge of discrimination by one Eric Armstrong that contains an allegation that might amount to
direct discrimination in his case. That does not constitute direct evidence in this case, however.
The plaintiff also argues that she was replaced by Savannah Saintpierre, a Caucasian woman
with less experience than the plaintiff, and that amounts to direct evidence of discrimination. It is
not. Although the two employees are of different races, one would have to draw an inference that
the employee swap was racially motivated, and therefore the evidentiary force of those facts is not
Moreover, the defendant argues, and the magistrate found, that Saintpierre was not hired to
replace the plaintiff. And even if she were hired to replace the plaintiff, such evidence would be
circumstantial. The defendant has the better part of the argument. The plaintiff argues that other
people’s complaints against the defendant speak for themselves. But nothing in those complaints
speaks directly to the plaintiff’s claims in this case. The plaintiff presumably asks the Court to infer
that alleged discrimination in one case necessarily means there was discrimination in this case. But,
as noted above, because an inference would be required to complete the circle of that argument, that
is not direct evidence.
The Court will overrule the plaintiff’s first, second, and twenty-fifth objections.
C. Objection 20
It appears that the plaintiff argues in her twentieth objection that the magistrate judge erred
by using the McDonnell Douglas burden-shifting structure in his analysis because she offered strong
direct evidence of discrimination. As noted above, the plaintiff failed to offer direct evidence of
A plaintiff also may establish discrimination by circumstantial evidence. Rowan v. Lockheed
Martin Energy Sys., Inc., 360 F.3d 544, 547-48 (6th Cir. 2004). If, as here, the plaintiff fails to offer
any direct evidence of discrimination, courts usually apply the three-step legal analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later clarified by Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981), to assess the circumstantial evidence.
Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 453 (6th Cir. 2004). Under the McDonnel Douglas
structure, “the employee has the initial burden of establishing [her] prima facie case; if [s]he does
so, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its
actions; finally, the employee has the burden of rebutting the employer’s proffered reasons by
showing them to be pretextual.” Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419,
427 (6th Cir. 2014).
The magistrate judge applied the correct test, and therefore objection 20 will be overruled.
D. Objection 17
A plaintiff may establish a prima facie case of discrimination “by showing that: (1) she is
a member of a protected group, (2) she was subject to an adverse employment decision, (3) she was
qualified for the position, and (4) she was replaced by a person outside of the protected class.”
Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008) (citations omitted). The magistrate
judge determined that the plaintiff had not established a prima facie case of discrimination, mainly
because there was no proof on the fourth element. The focus of that element was on Savannah
Saintpierre, a Caucasian woman who was hired as a SNAP specialist several weeks before the
plaintiff was terminated, and who also reported to Adam Dunton, the plaintiff’s supervisor.
The magistrate judge concluded that Saintpierre did not replace the plaintiff, based on the
timing of Saintpierre’s hire and the plaintiff’s termination following restructuring. The plaintiff did
not object to that finding or challenge the conclusion that she failed to establish a prima facie case.
In her seventeenth objection, however, she argued that the magistrate judge misread her complaint
when he said that “the theory” of her case “is non-discriminatory.” Obj. at 15. To support her
objection, the plaintiff reiterates her arguments that a less qualified Caucasian, Saintpierre, replaced
her as a SNAP specialist and that the MDCR has cases pending concerning racial discrimination
against the defendant.
It appears, however, that it is the plaintiff who misreads the report and recommendation. The
magistrate judge was making the point that evidence of Saintpierre’s lesser qualifications was not
relevant — or at most a makeweight — because “the theory of this case is not discriminatory hiring,
but rather, disparate treatment in the termination process.” R&R at 8 n.6. (emphasis in original).
The magistrate judge never said that the theory of this case is non-discriminatory. Moreover, the
relative qualifications of the employees played no role in the selection of who would be terminated;
the decision was not based on qualifications but rather performance.
This objection will be overruled. The failure to challenge effectively the finding that no
prima facie case was made out is fatal to the plaintiff’s Title VII claim. Nonetheless, the Court will
address the objections that focus on the question of pretext.
E. Objection 4
The plaintiff can create a fact question on whether the defendant’s reason for termination was
a pretext for illegal discrimination by offering some evidence “‘(1) that the proffered reasons had
no basis in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3)
that they were insufficient to motivate the employer’s action.’” Tingle v. Arbors at Hilliard, 692
F.3d 523, 530 (6th Cir. 2012) (quoting Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 839
(6th Cir. 2012)). In her fourth objection, the plaintiff argues that the magistrate judge erred by
finding that the defendant’s reasons for terminating her were not pretextual. She argues that she
“has fully proved through emails, Michigan Department of Civil Rights, reports of other individuals
claiming to have been discriminated against, her cross examination deposition, etc., that the
[defendant’s] employees ha[ve] totally been untruthful about the plaintiff.” The defendant argues
that the plaintiff has not offered any admissible evidence on that score.
The plaintiff primarily takes issue with her supervisor, Adam Dunton, who, according to her,
“is the key person really in this, all of this happened. I wouldn’t be sitting here if it wasn’t for Adam
Dunton, to be honest with you.” It is Dunton who authored the emails that pointed out the flaws in
the plaintiff’s performance. She has not offered evidence that those criticisms had no basis in fact,
nor has she shown that they actually masked Dunton’s racial animus. On that last point, the plaintiff
has another evidentiary obstacle to contend with, because Dunton both hired and fired the plaintiff.
At play here is a concept known as the “same actor inference.”
The same actor inference “allows one to infer a lack of discrimination from the fact that the
same individual both hired and fired the employee.” Buhrmaster v. Overnite Transp. Co., 61 F.3d
461, 463 (6th Cir. 1995). The reason for the inference is that “[c]laims that employer animus exists
in termination but not in hiring seem irrational. . . . It hardly makes sense to hire workers from a
group one dislikes (thereby incurring the psychological costs of associating with them), only to fire
them once they are on the job.” Ibid. (quoting Proud v. Stone, 945 F.2d 797 (4th Cir. 1991)).
Therefore, “‘in cases where the hirer and firer are the same individual and the termination of
employment occurs within a relatively short time span following the hiring, a strong inference exists
that discrimination was not a determining factor for the adverse action taken by the employer.’”
Ibid. (quoting Proud, 945 F.2d at 797).
As noted above, Dunton hired the plaintiff and participated in her termination only four
months later. That creates a strong inference that Dunton did not discriminate illegally against the
plaintiff. The plaintiff’s circumstantial evidence of discrimination, such as it is, focuses not on her
but on others; and it consists of unspecified emails and generally her deposition. But the plaintiff
did not provide any page citations or explanation how her testimony shows that the defendant’s
reasons for termination were pretextual. The plaintiff’s evidence does not show pretext or put a dent
in the same actor inference. The Court will overrule the fourth objection.
F. Objection 7
In her seventh objection, the plaintiff argues that the magistrate judge erred by stating that
she was contacted about appropriate attire in the workplace (presumably addressing pretext). The
plaintiff asserts that all of the employees were contacted about proper attire and therefore the
defendant’s case must fail. The defendant cites an email that supports the magistrate judge’s
finding, and also points out that Dunton submitted an affidavit testifying that among the plaintiff’s
performance issues were that she wore sweatpants in violation of the Food Bank’s dress code.
The plaintiff is correct that the email in question was addressed to all staff. However, it is
not clear why that fact would undermine the magistrate judge’s determination. That particular email
exchange was one of several the magistrate judge considered. For example, among other contacts,
Dunton sent an email to the plaintiff stating the following:
To follow up our phone conversation these are a few of the things that we have went
over. The schedule is not yet complete due to the holiday break and we are also
looking into some restructuring for the program. Some of the things that you and I
have discussed multiple times that we have noticed and are watching are that expense
reports are for out of county trips only, and mileage logs are to be fully completed
for all trips when using a Food Bank Vehicle. There have been multiple occasions
of paperwork submission error. I have received duplicate time sheets as well as not
completed mileage forms. As we discussed previously, when in the office, there is
certain etiquette that needs to be followed regarding volume level, there are times
when the others in the office are disrupted or on the phone and your volume has been
louder than necessary, and work appropriate topics. Also, when using a Food Bank
vehicle, there are channels that we discussed that need to be followed. Dispatch is
not responsible for pre trip preparations for the vehicles.
Def.’s Mot., Ex. 21 [48-22].
Even without the email addressed to all staff, the record contains ample evidence to support
the magistrate judge’s determination that there were concerns with the plaintiff’s conduct at the
Food Bank, and the defendant’s reasons for terminating the plaintiff were not pretextual. The Court
will overrule the plaintiff’s seventh objection.
G. Objection 11
In the plaintiff’s eleventh objection, she argues that the magistrate judge erred by not finding
that the restructuring justification was pretextual. She contends that the Food Bank ran an
advertisement for a SNAP specialist that eventually led to hiring Saintpierre, which she believes
demonstrates the restructuring justification was pretext. The defendant argues that hiring Saintpierre
in December 2013 was unrelated to the decision at the end of December 2013 to eliminate a SNAP
The plaintiff’s citation of the alleged advertisement does not appear to be in the record. The
magistrate notes, however, that the plaintiff discussed the advertisement in her deposition. The
plaintiff testified that the Food Bank posted an advertisement for a part-time SNAP specialist on
November 14, 2013. Saintpierre was hired for that position on December 14, 2013. The magistrate
judge found that the undisputed evidence shows that Saintpierre was hired weeks before the
plaintiff’s termination, and that the plaintiff worked consistently during that period. The magistrate
judge concluded that Saintpierre was not hired to replace the plaintiff; rather, she was hired as a
fourth part-time SNAP Specialist in addition to the plaintiff. The defendant offered evidence that
the decision to eliminate the SNAP position at the end of December — soon after the fourth position
was added — was based on a funding shortfall. The plaintiff has not offered any evidence that
contradicts that position or demonstrates that it was a pretext for racial discrimination. The
plaintiff’s eleventh objection will be overruled.
H. Objections 5 and 24
In her fifth and twenty-fourth objections, the plaintiff argues that the magistrate judge erred
by stating that Dunton was a manager at the Food Bank. She contends that this is important because
Dunton did not fire her, but “caused” her to be fired. And such a factual finding hides that
Saintpierre was eventually promoted to Dunton’s project coordinator position, which she says
demonstrates that the Food Bank’s restructuring due to budgetary concerns was pretext. The
defendant argues that Dunton was the plaintiff’s manager because he supervised her directly. It
argues that Dunton’s title does not demonstrate that the defendant offered any untruthful
information. Furthermore, the defendant notes that Saintpierre was promoted to Dunton’s position
after she had been employed there for 18 months, which postdated both the plaintiff’s and Dunton’s
departure from the Food Bank.
The magistrate judge did not refer to Dunton’s title. Instead, he noted that Dunton was “a
manager” at the Food Bank. The magistrate judge used the term “manager” in the generic sense,
in that Dunton managed other employees.
Characterizing Dunton as a manager does not
compromise the magistrate judge’s analysis. Additionally, the plaintiff’s argument that Saintpierre’s
promotion shows that the Food Bank’s reasons for terminating her were pretextual is without merit.
The plaintiff was terminated on January 3, 2014. Saintpierre was recommended for promotion on
June 29, 2015. A promotion 18 months after the plaintiff’s termination does not show that the
defendant’s proffered reason for termination (budgetary concerns) was pretextual. There is simply
no temporal relationship between the two events. Furthermore, the documentation also notes that
Saintpierre’s promotion was guaranteed for only three months, and that it was to be made clear to
Saintpierre that the position might not continue due to budgetary concerns. Saintpierre’s promotion
documents, if anything, reinforce the defendant’s position that budgetary concerns motivate, in part,
staffing at the Food Bank. These objection will be overruled.
I. Objection 19
In her nineteenth objection, the plaintiff says that the grant that allows the defendant to
employee SNAP specialists covers only three positions, but she offers no evidence of that. Instead,
she says that “[t]he defendant or plaintiff could provide the grant information in court which would
show the grant only covers three SNAP specialists.” She argues that this shows that Saintpierre was
hired to replace her because Saintpierre was a fourth SNAP specialist. The defendant argues that
the plaintiff has not proffered any grant information establishing that the defendant’s explanation
of restructuring was false or that Saintpierre was hired as her replacement.
The plaintiff made this same argument in her response to the defendant’s motion for
summary judgment. However, no information concerning the grant appears in the record. The
plaintiff notes that either party could provide the grant information, which no doubt is true. But
neither party has provided the information. As noted earlier, once the moving party demonstrates
the absence of a material fact, the party opposing a motion for summary judgment has the obligation
to designate specific facts in affidavits, depositions, or other factual material showing “evidence on
which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. Other than the
plaintiff’s unsupported reference to an alleged grant, there is no evidence that a grant even existed,
let alone how much funding it provided for SNAP specialists. The Court, therefore, will overrule
the plaintiff’s nineteenth objection.
J. Objection 16
In her sixteenth objection, the plaintiff argues that the magistrate judge erred by stating that
the plaintiff does not explain how the numerous emails she received from Dunton were not “write
ups.” The plaintiff contends that the emails she received were not related to discipline. It appears
that she is suggesting that a reprimand must be made formally. She asserts that she has received a
certification in management and knows whether or not something is intended to be a “write up.”
The defendant argues that there is no requirement that a reprimand must be provided in a formal
There can be no question that the email exchanges between Dunton and the plaintiff were
addressing her performance deficits. The magistrate judge characterized fairly the nature and
purpose of the emails. And the defendant is correct, that there is no requirement that reprimands be
made in a formal document. Therefore, the Court will overrule the plaintiff’s sixteenth objection.
K. Objections 6 and 10
In her sixth objection, the plaintiff argues that the magistrate judge erred by considering
numerous emails exchanged between the plaintiff and Dunton. She says that the evidence was
“falsified” because the emails were not signed. She also argues that the emails demonstrate
Dunton’s alleged racism. And she argues that one of the emails by Dunton praised the plaintiff for
her good work. In her tenth objection, she again challenges the legitimacy of the emails relied on
by the defendant to demonstrate deficient work performance. Additionally, the plaintiff argues that
the emails show that Dunton emailed Sarah Hierman, the director of programs, directly instead of
Dunton’s direct supervisor, James Richardson. The plaintiff argues this is significant because
Richardson is African American, and Hierman is Caucasian.
The defendant argues that the plaintiff does not explain how the emails were allegedly
“falsified.” Additionally, one email praising the plaintiff for one project does not demonstrate racial
animus. Morever, the defendant points out that Richardson told the Michigan Department of Civil
Rights (MDCR) during its investigation that he did not oversee the plaintiff’s position and was not
involved with the decision to terminate her employment.
The issue of whether the email exchanges considered by the magistrate judge were somehow
fraudulent is raised for the first time in the plaintiff’s objections. Issues raised for the first time in
objections to the magistrate judge’s recommendation are deemed waived. Ward v. United States, 208
F.3d 216, *1 (6th Cir. 2000) (table decision) (citing Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th
Cir. 1996)); see, e.g., Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d
985, 990-91 (1st Cir. 1988) (holding that “an unsuccessful party is not entitled as of right to de novo
review . . . of an argument never seasonably raised before the magistrate”); Greenhow v. Secretary
of Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) (“[A]llowing parties to litigate
fully their case before the magistrate and, if unsuccessful, to change their strategy and present a
different theory to the district court would frustrate the purpose of the Magistrates Act.”), overruled
on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc).
As for the positive email sent by Dunton, one positive email does not undermine the
magistrate’s finding that throughout the plaintiff’s tenure at the Food Bank she received numerous
emails addressing training issues and deficiencies with her performance. The defendant’s position
is that because of restructuring, a SNAP specialist position needed to be eliminated. In order to
determine which employee should be terminated, the Food Bank took into consideration the job
performance of two recently hired employees. Because the plaintiff had some work deficiencies,
the Food Bank chose to terminate the plaintiff rather than the other recently hired employee. It was
never alleged that all of the plaintiff’s work was lacking, only that it was deficient in some regards.
Therefore, the defendant is correct that one positive email does not demonstrate an error in the
magistrate judge’s report.
The defendant finds it significant that an MDCR report noted that Richardson did not
manage the plaintiff. However, as noted by the magistrate judge, an MDCR report “is inadmissible
at this stage of the litigation.
The Sixth Circuit has described such reports as containing
‘self-serving and hearsay statements.’” R&R at 22 (quoting Waller v. Thames and Pepsi-Cola
Corp., 852 F.2d 569, 1988 WL 76532, at *2 (6th Cir. 1988)). Nonetheless, the plaintiff has not
demonstrated that Richardson should have been consulted. It appears that the chain of command
in place during the time the plaintiff was employed at the Food Bank had Dunton reporting to
Richardson, who in turn reported to Hierman. The plaintiff assumes that Richardson should have
participated in the decision to terminate the plaintiff, but she offers no evidence to support that
assertion. Without some evidence that the Food Bank’s practice was to funnel termination decisions
through Richardson, even though Hierman was the ultimate decision maker, the plaintiff’s argument
lacks merit. The Court will overrule the plaintiff’s sixth and tenth objections.
L. Objection 22
In her twenty-second objection, the plaintiff argues that the magistrate judge erred by
considering her deposition testimony because it was a “fraudulent deposition.” She argues that her
deposition was fraudulent because the defendant did not provide her with requested discovery
information before taking her deposition. The magistrate judge addressed this issue on December
23, 2015, and again in the report. The plaintiff has not explained how the magistrate judge’s
explanation was wrong.
On December 23, 2015, the magistrate judge entered an order granting the plaintiff’s motions
to compel discovery and ordering the defendant to respond to specific discovery requests made by
the plaintiff. In the magistrate judge’s report, he addressed the plaintiff’s “fraudulent deposition”
argument. He noted that Federal Rule of Civil Procedure 26(d)(3)(A) does not require a specific
sequence of discovery. He concluded that the plaintiff’s fraudulent deposition argument lacked
merit. And he said that at the hearing on the plaintiff’s various motions to compel that the plaintiff
declined the defendant’s offer to be re-deposed after being provided with the delinquent discovery.
The plaintiff has not furnished any legal authority that demonstrates that the magistrate relied
improperly on her deposition testimony. She was given the opportunity to remedy any alleged
impropriety by the defendant in a second deposition, but she declined to take advantage of that
opportunity. Therefore, the plaintiff’s twenty-second objection will be overruled.
The magistrate correctly assessed the record and in light of the proper legal authority.
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#76] is ADOPTED, and the plaintiff’s objections [dkt. #85] are OVERRULED.
It is further ORDERED that the defendant’s motion for summary judgment [dkt. #48] is
It is further ORDERED that case is DISMISSED WITH PREJUDICE.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: April 24, 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 April 24, 2017.
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