Bonner v. Bosal Industries - Georgia, Inc.
OPINION and ORDER Denying Defendant's 20 Motion for Summary Judgment. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:16-cv-11629
HONORABLE STEPHEN J. MURPHY, III
BOSAL INDUSTRIES - GEORGIA, INC.,
OPINION AND ORDER
DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 
Plaintiff Cheryl Bonner sued her former employer, Defendant Bosal Industries Georgia, Inc., and alleged gender discrimination and retaliation in violation of Title VII as
well as pendent state claims under Michigan's Elliott-Larsen Civil Rights Act. ECF 1. Now
before the Court is Defendant's Motion for Summary Judgment. ECF 20. The issues have
been fully briefed, and the Court held a hearing. For the reasons set forth below, the Court
will deny Defendant's Motion.
Plaintiff began her permanent employment with Defendant in December 2010 as a
Quality Operator. ECF 25-2, PgID 389, 393. Four years later, Plaintiff was promoted to Shift
Manager and paid a $55,000 annual salary. ECF 20-3, PgID 104. Defendant admits that
Plaintiff's salary was $2,000 less than that of two male co-workers, Mustafa Saif and
Bernard Harris, who were each promoted to Shift Manager around the same time. ECF 20,
PgID 77; ECF 20-32, PgID 270.
At the present stage in the litigation, the Court recounts the facts in the light most
favorable to Plaintiff.
In early 2015, Plaintiff complained internally that an Operations Manager had made
sexist comments and treated her less favorably than her male counterparts. ECF 25-2,
PgID 411–13; ECF 25-11, PgID 465. Plaintiff ultimately took her complaint to the EEOC on
July 6, 2015. ECF 20-33, PgID 273. Afterwards, Defendant alleges Plaintiff had a slew of
documented performance issues. See, e.g., ECF 20, PgID 76–80; ECF 20-22; ECF 20-25.
Less than two months after Plaintiff filed her EEOC complaint, Defendant issued a "Final
Warning Memo" threatening termination. ECF 20-27, PgID 255. After the final warning was
issued, there was an incident in which Plaintiff allegedly did not properly address a
malfunctioning machine during critical production time. ECF 20-29, PgID 259–60.
Defendant terminated Plaintiff shortly thereafter, ECF 25-11, PgID 476, and Plaintiff
STANDARD OF REVIEW
The Court must grant summary judgment "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 must identify specific portions of the record
"which it believes demonstrate the absence of a genuine issue of material fact." Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the
non-moving party may not simply rest on the pleadings, but must present "specific facts
showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis omitted).
A fact is material if proof of that fact would establish or refute an essential element of
the cause of action or defense. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984).
A dispute over material facts is genuine "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). In considering a motion for summary judgment, the Court must view the facts
and draw all reasonable inferences " in the light most favorable to the nonmoving party."
60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).
Plaintiff alleges that Defendant violated 42 U.S.C. § 2000e-2 by paying two male Shift
Managers a $2,000 higher salary. ECF 1, PgID 3–4. Because Plaintiff relies on
circumstantial evidence, ECF 25, PgID 375, the Court must apply the burden-shifting test
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Tex. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) to analyze the claim. Under authority of those
cases, Plaintiff bears the initial burden of establishing a prima facie case of discrimination.
Burdine, 450 U.S. at 252–53. To make the showing, Plaintiff must prove that (i) she is a
member of a protected class, (ii) she was subjected to an adverse employment decision,
(iii) she was qualified for the position, and (iv) similarly situated members of a non-protected
class were treated more favorably. Peltier v. United States, 388 F.3d 984, 987 (6th Cir.
2004). Plaintiff's burden is not onerous at the initial phase. Burdine, 450 U.S. at 253.
If Plaintiff discharges her initial burden, the burden shifts to Defendant to articulate a
legitimate, nondiscriminatory reason for the adverse employment action. Id. Defendant
does not need to persuade the Court that it was actually motivated by the proffered
reasons. Id. at 254. Rather, it needs only to raise a genuine issue of fact as to whether it
discriminated against Plaintiff. Id.
If Defendant discharges its burden, then the final burden shifts back to Plaintiff "to
prove by a preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons[.]" Id. at 253. To do so, Plaintiff must identify evidence
from which a reasonable jury could conclude that the proffered reason is actually pretext
for unlawful discrimination. Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 812 (6th Cir.
Addressing each step in turn, the Court will find that Plaintiff's claim survives the
burden-shifting test and deny Defendant's motion on the discrimination claim.
A. Plaintiff made a prima facie showing.
Defendant concedes the first element, ECF 20, PgID 87, so the Court will address the
last three elements.
1. Plaintiff was subjected to an adverse employment action.
Defendant purports to limit the actions the Court should consider, but admits that
there was a pay disparity between Plaintiff and her male counterparts. ECF 20, PgID
89–90. A lower salary is by definition an adverse or discriminatory action, so Plaintiff made
a sufficient showing.
2. Plaintiff was qualified for the position.
The parties differ on how the Court should analyze Plaintiff's qualifications. Defendant
emphasizes Plaintiff's allegedly unsatisfactory performance. ECF 20, 87–88. Plaintiff, on
the other hand, asserts that the Court should focus on objective qualifications such as
education, experiences, and demonstrated possession of the required general skills. ECF
25, PgID 375–76. Plaintiff's assertion of Wexler v. White's Fine Furniture, Inc., 317 F.3d
564 (6th Cir. 2003) is persuasive. Moreover, Defendant's position is unsound because it
attempts to justify a discriminatory decision, Plaintiff's pay disparity, based on alleged
misgivings that did not occur until after the discriminatory decision was made.
Plaintiff's objective background indeed suggests she was qualified for the position.
Making all reasonable inferences in favor of Plaintiff, she had more than 16 years of
production experience, 4 years of experience with Bosal, and extensive supervisory
experience in a position with a previous employer. ECF 25, PgID 376. Defendant responds
that Plaintiff's previous experience was in packaging rather than manufacturing, and thus
did not meet the requirements listed in the Shift Manager job description. ECF 30, PgID
618. That point is well taken. But it does not adequately draw into question Plaintiff's
supervisory experience—Defendant's main point of attack on the claim—especially given
the low bar that McDonnell Douglas sets out in the burden-shifting test.
3. Plaintiff's male counterparts were treated more favorably.
Defendant argues that the higher-paid male counterparts, Saif and Harris, were not
similarly situated to Plaintiff because Saif had experience as a welder and Harris had
experience as a boxline technician. ECF 20, PgID 90–91. But those technical skills were
not included on the list of a Shift Manager's key duties. ECF 20-5. Defendant also posits
that the pay disparity is justified because when Saif, Harris, and Plaintiff were hourly
workers, Saif and Harris earned higher wages. The argument is unpersuasive. Once the
three employees were promoted to Shift Manager, they were equals. Pay disparities in their
previous positions should not have carried over, especially considering that they
transitioned from union positions to management. Plaintiff was similarly situated to Saif and
Harris, but the two men received favorable treatment.
B. Defendant provided evidence of a legitimate, nondiscriminatory reason for the pay
Although Defendant's argument about Saif's and Harris's technical skills was
insufficient to prevent Plaintiff from clearing the low bar in step one of the analysis, the
argument does provide evidence of a legitimate, nondiscriminatory reason for paying Saif
and Harris more. See 20-10, PgID 142. Defendant need only raise a genuine issue of fact,
and a reasonable person could be persuaded that Saif's and Harris's technical skills
provided extra value to Defendant when the men supervised and trained welders and
boxline technicians. Defendant therefore discharged its burden.
C. Plaintiff drew into question Defendant's justification.
Defendant's argument about Saif's and Harris's technical skills may raise a genuine
issue of fact, but Defendant still needs to explain why the need for these specific skills is
not reflected in the documented list of a Shift Manager's key duties. ECF 20-5. Additionally,
Plaintiff presumably had skills from her previous position that would also be valuable in
supervising and training employees holding that position. A reasonable jury could conclude
that Defendant's proffered reason is actually pretext. Consequently, Plaintiff discharged her
final burden and the Court will deny Defendant's motion on the discrimination claim.
Plaintiff alleges that Defendant fired her, in violation of 42 U.S.C. § 2000e-2, for filing
an EEOC complaint. ECF 1, PgID 4–5. The Court must apply the same test to the
retaliation claim as it did to the discrimination claim. See Ladd v. Grand Trunk W. R.R., Inc.,
552 F.3d 495, 502 (6th Cir. 2009). The only difference in the analysis is that in step one,
Plaintiff must make a prima facie showing that (i) she engaged in protected activity, (ii)
Defendant had knowledge of the protected activity, (iii) Defendant took adverse
employment action against her, and (iv) there was a causal connection between the
protected activity and the adverse employment action. Blizzard v. Marion Tech. College,
698 F.3d 275, 288 (6th Cir. 2012).
A. Plaintiff made a prima facie showing.
Defendant's brief does not make any arguments raising doubt about whether Plaintiff
could make a showing of the first three elements, see ECF 20, PgID 93–96, but Defendant
did raise a concern at oral argument that the Court would consider Plaintiff's right-to-sue
letter, instead of the EEOC complaint, as the protected activity at issue. The Supreme
Court has held that to do so would be improper. Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001) (holding that it is an "utterly implausible suggestion" that an EEOC right-tosue letter can function as a protected activity). The Court will therefore proceed to address
the only element at dispute: the causal connection between Plaintiff's EEOC complaint and
Plaintiff made a sufficient showing of a causal connection. Defendant argues that
Plaintiff's many performance issues after her July 2015 EEOC complaint were the reasons
she was fired. See ECF 20, PgID 76–80. Plaintiff protests that these documented
disciplinary actions were an effort to "paper her file" as part of Defendant's "campaign of
retaliation." ECF 25, PgID 382–83. Although such allegations typically come across as
fanciful, there is documentary evidence that could confirm Plaintiff's suspicions here. In an
email, Defendant's human resources representative responded to a proposal to change
Plaintiff's shift. ECF 25-16, PgID 496–97. The email counsels the need to be strategic in
light of Plaintiff's EEOC claim. Id. The concluding point in the email is that changing
Plaintiff's shift would not "help us build a strong case against her for further disciplinary
action." Id. at 497. Plaintiff's argument, augmented by the HR email, provides a sufficient
showing of causation. Plaintiff therefore discharged her burden.
B. Defendant provided evidence of a legitimate, nondiscriminatory reason for firing
Although Plaintiff questions their legitimacy, numerous documents detail her alleged
poor performance, including an external audit. Plaintiff's poor performance earned her a
final warning, and then she allegedly neglected her duties resulting in reduced production
during a critical time. Defendant therefore raised a genuine issue of fact as to whether its
termination of Plaintiff was justified by her performance.
C. Plaintiff drew into question Defendant's justification.
Despite Defendant's documentary evidence of Plaintiff's poor performance, the HR
email discussed in Section II.A raises doubts about the legitimacy of the disciplinary issues.
The email suggests that Defendant was well aware of Plaintiff's protected activity and was
proceeding with caution to build a case for further disciplinary action. Whether Defendant
wanted to take further disciplinary action for legitimate reasons or because it hoped to fire
Plaintiff for filing an EEOC complaint is an open question. But a reasonable jury could
conclude the latter. Consequently, Plaintiff discharged her burden and summary judgment
for Defendant on the retaliation claim is improper.
Michigan's Elliott-Larsen Civil Rights Act
The parties agree that at the present stage of the litigation, Plaintiff's claims under
Michigan's Elliott-Larsen Civil Rights Act should be analyzed using the same framework as
the Title VII claims. See Crane v. Mary Free Bed Rehab. Hosp., 634 F. App'x 518, 521 (6th
Cir. 2015). The Court therefore will not address the state claims individually.
Because Plaintiff's discrimination and retaliation claims both survive the McDonnell
Douglas burden-shifting test, the Court will deny Defendant's Motion for Summary
WHEREFORE, it is hereby ORDERED that Defendant's Motion for Summary
Judgment  is DENIED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: October 10, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on October 10, 2017, by electronic and/or ordinary mail.
s/David P. Parker
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