Kelly v. Pinnacle Foods Group LLC

Filing 25

ORDER granting 20 Motion for Summary Judgment. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHONTA KELLY,
Case No. 16-10022
Plaintiff,
v.

SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

PINNACLE FOODS GROUP LLC,

U.S. MAGISTRATE JUDGE
ELIZABETH A. STAFFORD

Defendant.
/

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [20]
On January 5, 2016, Plaintiff filed a complaint alleging claims of racial
discrimination, racial harassment, and retaliation under the Michigan Elliott Larsen
Civil Rights Act (ELCRA), and a claim for breach of contract under §301 of the
Labor Management Relations Act (LMRA) against her former employer Defendant
Pinnacle Foods Group. Defendant Pinnacle Foods filed a Motion for Summary
Judgment on November 14, 2016 [20]. Plaintiff responded [21] on December 5,
2016 and Defendant replied [22] on December 19, 2016. A hearing was held
before the Court on June 28, 2017. For the reasons stated below, Defendant’s
Motion for Summary Judgment [20] is GRANTED.

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FACTUAL BACKGROUND
Plaintiff, an African America woman, began working at Pinnacle’s Imlay
City, Michigan facility on May 15, 2012. [20-4 at ¶3]. While employed with
Defendant Pinnacle, Plaintiff was a member of the Union. “At the time of her
termination, Plaintiff was a Labeler Operator, operating a machine that places
labels on jars.” [Id at ¶4].
In April 2015, Plaintiff got into an argument with her fellow nonmanagement employee, Lynn Hickey (Hickey). Plaintiff testified that Hickey told
her to “Get the fuck out of my face. I feel like punching someone.” Plaintiff
reported Hickey to the HR department, and Hickey was suspended for five days
without pay for violating company rule 8(B) through use of intimidating or abusive
language, including threatening bodily harm. [20-4 at 18]. This was not a
terminable offense until the third infraction. [20-3 at 22].
Plaintiff testified that, after reporting Hickey to HR, she had fellow nonmanagement employees, including Hickey and John Wilcoxin, working
deliberately to make her job more difficult by placing all the jars on her line. [20-5
at 127]. Plaintiff also testified that her supervisor, Camerin Levi, was aware of the
tension between Plaintiff and Hickey, but did not separate the two employees. [205 at 130].

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On June 4, 2015, Plaintiff testified that the jars on her line kept tipping over,
causing her machine to malfunction, and stopping production. [20-5 at 72; 76].
Plaintiff then shut the machine down and walked away to contact HR to see if there
was someone who could help her fix the machine. [Id at 77]. Per the employee
handbook company rule 4(c), “employees will not leave their work area except at
designated break time, lunch periods, and quitting times without permission from
supervisor.” [20-3 at 20]. Plaintiff admits that she was informed of this rule as part
of her training. [20-5 at 87]. In Plaintiff’s deposition, she admits that when she left
her work station, she saw the Crew Leader Lorie Evans, but did not stop to ask her
to call the supervisor with her walkie-talkie as she had done in the past, but rather
abandoned her station and walked away because she was frustrated and was
heading to HR to obtain help. [20-5 at 83-87]. Per Plaintiff’s statements, she was in
violation of Rule 4(C). [20-4 at ¶9].
Evans submitted a written statement to HR concerning Plaintiff leaving her
station. [20-4 at 8]. Plaintiff’s Supervisor, Camerin Levi (Levi), was informed
about the labeler malfunction and of Plaintiff leaving her station. When Plaintiff
reached HR, the door was locked, so she headed back to her station. [20-5 at 8990]. While on her way back to her station, Plaintiff met Levi, who took her back to
HR. [Id]. Plaintiff testified that Levi was angry at her for leaving her station, and
informed her that she could be automatically terminated for that offense. [Id at 91].

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At HR, Plaintiff and Levi spoke with HR representative Marilyn Hiller (Hiller).
Hiller said that appropriate action would be taken for Plaintiff’s violation of
company policy. [20-5 at 92-93]. Plaintiff was upset and crying but returned to her
machine. [20-5 at 93].
Levi and his supervisor Jim Robeson determined that Plaintiff should be
suspended pending investigation of her rule violation, which had resulted in 60
minutes of downtime for the machine. [20-4 at ¶11]. Plaintiff was not terminated
for this violation. After being informed of her suspension, Plaintiff was walked out
by a guard. [20-5 at 99]. Plaintiff went to her car in the facility’s parking lot,
briefly left to get food, and returned to have a friend drive her home because she
was upset. [Id]. Upon her return, three employees, Brenda Stiff (Stiff), John
Wilcoxin (Wilcoxin) and Joan Brooks (Brooks) were in the parking lot. Brooks
and Wilcoxin, who were leaving their shift, stopped to talk to Stiff and another
employee who were coming in to start their shift [20-4 at 12-14].
Stiff, Brooks and Wilcoxin submitted witness statements to HR about the
following events in the parking lot. [20-4 at ¶13]. They all reported that, while they
were in the parking lot, Plaintiff flipped them the middle finger several times. [204 at 12-14]. Plaintiff admits in her deposition that she did stick her middle finger
up and gesture towards Wilcoxin. [20-5 at 103]. After the group of four finished
their conversation, Brooks and Wilcoxin continued to their cars while the other

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employees headed to their shift. [Id]. Brooks and Wilcoxin reported that as they
were leaving the parking lot, in their own cars with the windows rolled down, they
observed Plaintiff made a gesture imitating fellatio and yelled “Faggot!” at
Wilcoxin several times. [Id]. Plaintiff testified that she knew that Wilcoxin was
gay. [20-5 at 105]. While Plaintiff admits that she gestured with her middle finger,
she denies having used any derogatory language or making any sexually obscene
gesture at Wilcoxin [Id].
HR Manager Michael Ryan (Ryan) and Plant Manager Jeannene Schaffnit
reviewed the witness statements and determined that Plaintiff’s actions violated
company rule 11(c), employee assault, a terminable offense for first time
offenders. Plaintiff was not interviewed as part of this investigation. She was
ultimately terminated for her violation of Rule 11(c).
STANDARD OF REVIEW
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The moving party
has the burden of establishing that there are no genuine issues of material fact,
which may be accomplished by demonstrating that the nonmoving party lacks
evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477

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U.S. 317, 322 (1986). The Court must construe the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A genuine issue for trial exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
ANALYSIS
1. RACIAL DISCRIMINATION CLAIM
Under the Michigan Elliott Larsen Civil Rights Act (ELCRA), if there is no
direct evidence tending to establish racial bias, the approach in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) is
employed in which a Plaintiff has an opportunity to present a prima facie case of
discrimination by presenting evidence that: she “(i) was a member of a protected
class, (ii) was qualified for the position, (iii) suffered an adverse employment
action, and (iv) was ‘treated differently than similarly situated non-protected
employees.’” Mensah v. Mich. Dep’t of Corr., 621 Fed. Appx. 332, 334 (6th Cir.
2015) (quoting Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir. 2001)).
If Plaintiff can establish a prima facie case, a presumption of discrimination arises.
Id.

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Plaintiff fails to raise a prima facie case of employment discrimination,
because the facts do not give rise to an inference of discrimination. Ryan and
Schaffnit terminated Plaintiff y after the statements from three employees
supported that she had put up the middle finger, then yelled faggot and made a
sexually inappropriate gesture at an employee known to be gay. Plaintiff also states
in her testimony that the only manager who she believes to have been biased
against her based on race was Levi, and he had no part in her termination. There
are no accusations against either Ryan or Schaffnit, who conducted the
investigation into the incident and made the decision to fire Plaintiff. Therefore,
there no prima facie claim of harassment has been made.
If she is presumed to have established a prima facie case, the presumption of
discrimination can be rebutted by Defendants if they can produce evidence that the
“employment actions were taken for a legitimate, nondiscriminatory reason.” Id at
464. It is clear that terminating an employee for making the discriminatory
statements that Plaintiff made is permissible. The burden then shifts back to
Plaintiff, who must show that the employer’s proffered reason was a pretext for
unlawful discrimination. Plaintiff can show pretext in three ways, by showing: (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.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th

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Cir. 2009) (citing Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 460 (6th
Cir.2004)). To successfully argue pretext, a Plaintiff must “produce sufficient
evidence from which a jury could reasonably reject Dow's explanation of why it
fired her.” Id at 400 (citations omitted).
Plaintiff argues Hickey was not terminated for what she equates to be the
same or similar offense, and also calls into question the sufficiency of the
investigation undertaken before her termination. Even if pretext can be established,
it can be successfully rebutted if the “employer reasonably and honestly relies on
particularized facts in making an employment decision, it is entitled to summary
judgment on pretext even if its conclusion is later shown to be ‘mistaken, foolish,
trivial, or baseless.’” Id at 401.
In this case, there is no evidence presented that the persons who made the
decision to investigate and terminate Plaintiff had any racial bias toward Plaintiff,
or that they did not honestly believe the statements given to them. In fact, Plaintiff
admits that she did not have any previous problems with Stiff and Brooks, which
supports the conclusion that the employer reasonably relied on the facts as
presented by them. [20-5 at 102, 106]. Therefore, summary judgment is granted on
this claim.

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2. RACIAL HARASSMENT
Under Michigan law, to establish a prima facie case of discrimination based
on a hostile work environment, five elements must be shown:
(1) the employee belonged to a protected group; (2) the employee was
subjected to communication or conduct on the basis of [her protected
status]; (3) the employee was subjected to unwelcome ... conduct or
communication [involving her protected status]; (4) the unwelcome ...
conduct was intended to or in fact did substantially interfere with the
employee's employment or created an intimidating, hostile, or offensive
work environment; and (5) respondeat superior.
Quinto v. Cross & Peters Co., 451 Mich. 358, 368–69, 547 N.W.2d 314, 319–20
(1996). Whether unwelcome conduct rises to level of a hostile work environment
“shall be determined by whether a reasonable person, in the totality of
circumstances, would have perceived the conduct at issue as substantially
interfering with the plaintiff's employment or having the purpose or effect of
creating an intimidating, hostile, or offensive employment environment.” Id at 369
(quoting Radtke v. Everett, 442 Mich. 368, 392, 501 N.W.2d 155, 166 (1993)).
Plaintiff alleges that the actions of her co-worker Hickey constituted
harassment. Plaintiff does not allege that she ever heard her alleged harasser
making any racial comments and, at her deposition, admitted that any belief that
Hickey’s actions were racially motivated were mere speculation. [20-5 at 125].
This is fatal to her claim as points two and three have therefore not been
established. She never heard anyone say anything inappropriate about race; and

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rather “just knew they were,” without any specific allegations. [Id]. Even in the
response brief, Plaintiff has failed to make any allegation that the alleged acts
themselves constituted an alleged hostile environment involved her race. Plaintiff
also fails to meet the requirements of point 5, because there are no allegations that
she made any complaints about Hickey or any other employee that concerned race.
Therefore there are no allegations that Defendant was aware that Plaintiff allegedly
was being racially harassed. Therefore this claim must fail, and summary judgment
is granted to Defendant on this claim.
3. RETALIATION
The ELCRA provides in pertinent part that “a person shall not ... [r]etaliate
or discriminate against a person because the person has opposed a violation of this
act, or because the person has made a charge, filed a complaint, testified, assisted,
or participated in an investigation, proceeding, or hearing under this act.” Id (citing
MCL 37.2701(a)). Much like a federal claim of retaliation, to establish a prima
facie case of retaliation under the ELCRA, a Plaintiff must show: “(1) that the
plaintiff engaged in a protected activity, (2) that this was known by the defendant,
(3) that the defendant took an ... action adverse to the plaintiff, and (4) that there
was a causal connection between the protected activity and the adverse ... action.”
Id at *3 (citing Meyers v. City of Center Line, 242 Mich. App. 560, 568–569; 619
N.W.2d 182 (2000)). Michigan Courts have ruled that, to qualify as protected

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activity under MCL 37.2701(a), “a plaintiff must clearly convey to an objective
defendant that she is ‘raising the specter of a claim of unlawful discrimination
pursuant to the CRA.’” Id (citing Barret v. Kirtland Community College, 245
Mich. App. 306, 319; 628 N.W.2d 63 (2001)).
Plaintiff asserts that she complained to her supervisor Levi regarding the
actions of Hickey and Wilcoxin sabotaging her line, and this was a significant
factor in her termination. Plaintiff’s claim fails for several reasons. There is no
evidence that Plaintiff took part in any protected activity as defined under the
ELCRA. She has failed to allege that there were any reported complaints that
concerned alleged harassment based on race. Causation is also a problem for this
claim. There is nothing that links the decision of Ryan and Schaffnit to any
complaints made to Levi. Plaintiff complains that Wilconixin, Levi and Hickey
were trying to get rid of her, but there is nothing to illustrate that these efforts were
factors in the investigation of Ryan and Schaffnit, or the ultimate dismissal, in light
of the witness statements. Therefore, summary judgment is granted on this claim as
well.
4. BREACH OF CONTRACT CLAIM
Finally, Plaintiff brings a breach of contract claim against Defendant
Pinnacle under § 301 of the Labor Management Relations Act (“§301”). Claims
under this section have also been brought against Co-Defendant United Dairy &

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Bakery Workers Local 87 AFLCIO (“Local 87”), and they previously brought a
motion to dismiss this claim, inter alia, for a violation of the statute of limitations.
The Court granted Local 87’s motion to dismiss on statute of limitation grounds,
and this defense should be accepted for the same reason here. Therefore, for the
reasons stated in the Order entered on February 17, 2017 [23], summary judgment
is granted on this claim.
5. CONCLUSION
In conclusion, Plaintiff has not presented any evidence that racial bias or
prohibited discrimination played a part in any of the alleged claims. Further,
summary judgment should be granted on the §301 federal claim for the same
reason that it was dismissed against the union Defendant previously, as it was filed
after running of the statute of limitations. Accordingly,
IT IS ORDERED that Defendant’s Motion for Summary Judgment [20] is
GRANTED.
SO ORDERED.

Dated: July 10, 2017

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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