Bradley v. XDM, Inc.

Filing 20

ORDER GRANTING 16 Defendant's Motion for Summary Judgment. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VALERIE BRADLEY, an individual,
Plaintiff,
Case No. 15-14154
Hon. Terrence G. Berg

v.
XDM, Inc., f/k/a DIALOGUE
MARKETING, a Michigan
corporation,
Defendant.

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (DKT. 16)
Plaintiff Valerie Bradley brings this cause of action alleging that her former
employer, Defendant XDM, Inc., discriminated against her based on her color, race
and age, and also retaliated against her in contravention of the Michigan Elliot
Larsen Civil Rights Act (ELCRA), M.C.L. § 37.2101, and Title VII of the Civil
Rights Act of 1964 (Title VII). 42 U.S.C. § 2000e-2. (Dkt. 1).1
Before the Court is Defendant XDM Inc.’s (XDM) motion for summary
judgment on Plaintiff’s remaining claims against it for color, race, and age
discrimination under the Michigan ELCRA, and unlawful retaliation under Title

In an earlier, stipulated Order, this Court dismissed with prejudice Plaintiff’s Title VII
discrimination claim and barred Plaintiff from pursuing a claim under the Age
Discrimination in Employment Act, 29 U.S.C. § 621, to the extent any such claim arose out
of Equal Employment Opportunity Commission (EEOC) Charge of Discrimination number
471-2013-03016. (Dkt. 11).
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VII. On January 18, 2016, the Court heard oral argument on Defendant’s motion in
Flint, Michigan.
For the reasons set forth below, Defendants’ motion for summary judgment is
GRANTED as to both of Plaintiff’s claims against it.

I.

Background
Plaintiff Valerie Bradley is an African-American female. At the time that

XDM allegedly discriminated and unlawfully retaliated against her, she was
approximately fifty years of age.2 Plaintiff began working for XDM on or about
October 15, 2012. The company operated a call center that served the telemarketing
and support needs of its customers, such as Frito-Lay and PepsiCo. XDM assigned
Plaintiff to its “Snacks 2 You program,” which provided customer support services
to agents of retail stores that purchased its customers’ products and who could call
XDM in regard to matters such as shipping and product information. Plaintiff was
hired to work as a customer service representative; her job responsibilities included
taking customer orders and responding to customer complaints over the phone.
On August 8, 2013, Plaintiff filed a Charge of Discrimination against XDM
with the EEOC. (Dkt. 16, Ex. 13). On December 27, 2013, XDM terminated
Plaintiff. (Id., Ex. 24). The remaining claims in Plaintiff’s complaint are that: (1)

In Plaintiff’s response to XDM’s motion for summary judgment, filed with the Court on
October 24, 2016, Plaintiff states that she is fifty-two years old. She alleges that the
discrimination and retaliation she complains of occurred in 2013. The Court therefore infers
that at the time of XDM’s allegedly unlawful acts against her, she was approximately fifty
years of age.
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during the approximately fourteen months Plaintiff worked at XDM, she was
denied opportunities for promotion or other incentives on the basis of her race, and
(2) XDM supervisors severely or pervasively harassed her, or decided to terminate
her, because she filed a discrimination charge. Plaintiff argues that because of her
race, she was not told about certain opportunities for promotion and was denied
favorable changes to her shift time and a request to train on an additional software
program.3 She further claims that as a result of her decision to file an EEOC
Charge, she was harassed and terminated. XDM responds by asserting that
Plaintiff was never denied opportunities for promotion, harassed, or prevented from
obtaining favorable changes to her shift time or software training opportunities on
the basis or her race or because of her EEOC complaint. Instead, XDM contends
that Plaintiff was terminated because of her record of unprofessionalism and
inability to improve her performance after receiving coaching.

Plaintiff’s Initial Work Performance Issues
The evidentiary record indicates that Plaintiff was formally assessed
negative feedback from her supervisors, customers, and colleagues, on the following
occasions during the time period of February, 2013 through May, 2013:


On February 21, 2013, Plaintiff’s supervisor completed a written
performance review for the first ninety days of Plaintiff’s employment with
XDM: 4 the review noted Plaintiff had an upbeat and patient attitude on the
phone, and that she has an outgoing personality and tries to reach out to her
colleagues, but that she also struggles with arriving on time and can be

At oral argument, Plaintiff’s counsel stated that Plaintiff voluntarily abandoned her claim
for age discrimination.
4 Plaintiff’s supervisor at this time was Vanessa Boling, who is a white female.
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abrupt. (Dkt. 16, Ex. 2). In the competency categories of “quality, customer
focus, [and] team work,” Ms. Boling rated Plaintiff as “meets requirements,”
and in the competency category of “attendance/punctuality” as “occasionally
meets requirements.” (Id.).


On February 22, 2013 XDM issued Plaintiff a “mistreat/mishandle” form for
taking an “argumentative/rude” tone with a customer, which is in
contravention of XDM’s Quality Assurance Manual. (Id., Ex. 7 at Pg ID 331;
Ex. 4 at Pg ID 203). In response to this, Plaintiff testified that she received
one-on-one coaching from a supervisor on how to be patient during phone
calls. (Id., Ex. 2 at Pg ID 120).



On February 25, 2013, two XDM employees logged formal complaints in the
company’s computer system stating that Plaintiff had been “kind of snotty”
and “offensive” to them respectively. (Id., Ex. 8 at Pg ID 333).



On April 23, 2013, Plaintiff received a “corrective action form” stating that it
was the “final notice” that XDM would be providing her regarding her late
arrivals to work. (Id., Ex. 9 at Pg ID 339-40). XDM has an attendance policy
whereby employees are assigned points whenever they are late to work, and
the later they arrive, the more points they are assigned. (Id., Ex. 5 at Pg ID
318). According to the policy, when an employee accrues six points they will
receive a written warning, and when an employee receives twelve points,
they will be reviewed for termination. (Id.) The April 23, 2013 corrective
action form stated that Plaintiff had accrued eleven and one quarter points,
though Plaintiff testified that this amount was incorrect, and that her point
total on account of lateness was eight and a half. (Id. Ex. 9 at Pg ID 339-40;
Ex. 2 at Pg ID 121-22).



On April 24, 2013, a supervisor advised Plaintiff against elevating her voice
with customers and reprimanded her for “smacking [his] desk to grab [his]
attention.” (Id., Ex. 8 at Pg ID 334).



On May 22, 2013, a colleague logged a formal complaint stating that Plaintiff
“got snappy” with her. (Id.).



On May 29, 2013 Plaintiff received a corrective action form—i.e. a written
warning—after, in reference to a customer whom Plaintiff mistakenly
thought was on mute, she stated to her supervisor “this crazy lady wants to
talk to you,” such that the customer heard this comment. (Id., Ex. 10 at Pg
ID 342). The audio recording of this call is entered in the evidentiary record.
(Id., Ex. 11 at 4:38).

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Events Preceding Plaintiff’s EEOC Charge
Plaintiff testified that she verbally requested a change in shift time from the
night shift to the day shift from Ms. Boling in “May or June [2013],” but that Ms.
Boling denied her request, stating to her, “get in line, there are people with three
and a half years seniority.” (Dkt. 18, Ex. A at Pg IDs 469-70, 480). When XDM’s
lawyer asked Plaintiff at her deposition if it was her opinion that Boling denied her
request based upon “her race and age,” Plaintiff testified, “[t]hat played a part, yes.”
(Id. at Pg ID 478).5 Plaintiff further stated that “in [her] department,” switching
from the night shift to the day shift was “considered a promotion.” (Id. at Pg ID
480). As Defendant points out, XDM policy requires employees to submit a Schedule
Change Form to change shift times. (Dkt. 16, Ex. 5 at App. A, 16). On July 5, 2013,
Plaintiff completed a Schedule Change form, and it was signed by a supervisor,
indicating that her shift would be permanently changed from 11:30 am – 8:00 pm to
10:30 am – 7:00 pm, effective July 15, 2013. (Dkt. 16, Ex. 25). Plaintiff testifies,
however, that this shift change was not permanent, as it was “only for a specific
date.” (Dkt. 18, Ex. A at Pg ID 476). Moreover, Plaintiff testifies, two of her
Caucasian colleagues, whom she identifies as “Keegan” and “Scott” were
“promoted”—i.e. given permanent day shifts—even though they were hired after
her. (Id. at Pg ID 479-80). Plaintiff’s testimony conflicts, however, on whether
Keegan and Scott were awarded shift changes when Ms. Boling—the alleged

When asked “what else played a part?,” Plaintiff replied, “[Ms. Boling’s] interacting with
the African-American and Hispanics versus the Caucasian that was just openly
displayed…From speaking, walking past, speaking to Caucasians and looking us dead in
our face and not speak [sic].” (Id.)
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discriminatory supervisor—was at the company. It is undisputed that Ms. Boling
left XDM on August 15, 2013. (Id. at Pg ID 550). At her deposition Plaintiff first
testified that Keegan and Scott received “promotions” to the day shift in September,
2013; just a few moments later, however, she testified that Keegan and Scott
changed shifts “by May, June [2013].” (Id. at Pg ID 479). At some point between
mid-August, 2013 and mid-September, 2013, after Ms. Boling left XDM on August
15, 2013, Plaintiff testified that her shift was changed permanently to 8:30 am to
4:30 pm. (Id. at Pg ID 482).
In addition to her allegations that shift change decisions were made on the
basis of race, Plaintiff testified that Ms. Boling “had [the employees] sitting
segregated” and did not “post” any opportunities for promotions or incentives. (Dkt.
18, Ex. A at Pg ID 551). “You never knew what was available,” Plaintiff testified,
“until [Ms. Boling] brought [an opportunity for incentive or promotion] to whoever
she wanted to.” (Id. at 552). Plaintiff added that she felt like Ms. Boling “favored
Caucasians in this regard.” (Id.; Id. at Pg ID 539-40). Plaintiff testified further that
Ms. Boling denied her request to be trained on a software program that would have
allowed her to work as a customer service representative for Pepsi Co. (at that time,
she was trained only to work for Frito-Lay) (Id. at 579-80, 582-83). Plaintiff states
that she saw Ms. Boling training two white colleagues—“Steven [who Plaintiff
stated she mistakenly referred to as “Scott” earlier in her deposition] and Keegan”—
and walked up to Ms. Boling to request that she be allowed to join the training
session, but Ms. Boling said no. (Id.) Plaintiff acknowledged that she was trained on

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Pepsi Co. “a couple months later,” when XDM offered training for this product to
their entire staff. (Id. at 582-83).
Although Plaintiff also testified to the facts that she applied and was turned
down for two different promotions within the company on June 12 and June 17,
2013, (Dkt. 16, Ex. 12), as well as a position as a human resource assistant in or
about July 31, which she does not characterize as a promotion, (Dkt. 18, Ex. A at Pg
ID 468), Plaintiff maintained that she does not attribute any of these hiring
decisions to discriminatory animus. (Id. at Pg IDs 467-69). Moreover, with respect
to the first two positions, Plaintiff admits that she was ineligible for these
promotions, because she received a written warning on May 29, 2013 and, according
to XDM policy, could not receive a promotion until three months after receiving
such a warning—that is, not until after August 29, 2013. (Id. at Pg ID 465; Dkt. 16,
Ex. 5 at Pg ID 249).6

Plaintiff’s EEOC Charge and Events Subsequent
On August 8, 2013, Plaintiff filed a Charge of Discrimination with the EEOC.
(Dkt. 18, Ex. B). She testified that thereafter a Caucasian supervisor named John
“grabbed my attention a couple days after I had filed that telling me about me filing
this and that [Ms. Boling] was being terminated. She had seven days to go.” (Id.,

The fact that Plaintiff testifies that she was approved for a change to the day shift on
August 15, 2013, see supra p. 5, suggests that XDM must not have considered such a shift
change to be a promotion, because on August 15, 2013 Plaintiff was still ineligible to receive
a promotion. Whether or not a shift change is a promotion bears on whether the denial of a
shift change constitutes an “adverse employment action” against Plaintiff. See infra Part
III.A.
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Ex. A at Pg ID 481). Plaintiff testifies further that, when Ms. Boling left, she was
supervised by Rhonda Baker, an African American. (Id. at Pg Id 490). In addition,
Plaintiff testified that at some time, which she does not identify, she told Ms. Baker
that she had previously filed an EEOC Charge, (Id. at Pg ID 554-55) and that
thereafter Ms. Baker began taking away her job responsibilities and paying extra
attention to Plaintiff’s phone calls and attendance. (Id. at Pg ID 555-56).7 On
December 27, 2013, approximately four and a half months after Plaintiff filed her
EEOC Charge, XDM terminated her. (Id. at Pg ID 538; Dkt. 16, Ex. 24).

Plaintiff’s Work Performance Issues after her EEOC Charge
From August 8, 2013—the day Plaintiff filed her EEOC Charge—until
December 27, 2013—the day XDM terminated Plaintiff—colleagues, customers, and
supervisors logged the following complaints against her:


On August 20, 2013 supervisor Melanie Brown submitted an internal report
stating that Plaintiff had received a customer complaint for improperly
processing an order, and that Plaintiff delivered a response to the customer
that was “very rude.” (Dkt. 16, Ex. 8 at Pg ID 336).



On September 6, 2013 supervisors Larry Walker and Adam Holler met with
Plaintiff to discuss her recent “outburst” after Mr. Walker emailed her
around late August or early September regarding her violation of a quality
assurance policy; Mr. Walker states that during this meeting he informed
Plaintiff that “her unprofessionalism would not be tolerated.” (Dkt. 16, Ex. 14
at Pg ID 362).



Mr. Walker states further that on October 22, 2013 he provided Plaintiff with
protocol for product-related service complaints and “perceived that she was

Plaintiff testifies that in December 2013, XDM supervisors reviewed four of her customer
calls, whereas the usual company policy is to review two calls of each employee per month.
(Id. at Pg ID 538).
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unreceptive to the training as she became combative during the training
session.” (Id.).


On November 7, 2013 XDM issued Plaintiff a corrective action form,
indicating that it was serving as final notice of her attendance problems. (Id.,
Ex. 15). That same day, XDM granted her request to change shift time for a
three-week period. (Id., Ex. 16).



Around November 23, 2013 XDM issued Plaintiff a mistreat/mishandle form
for greeting a customer sixteen seconds into a call, whereas XDM’s Quality
Assurance Manual states that seven seconds of dead air is improper. (Id. at
Ex. 17; Ex. 4).



On December 2, 2013, Rhonda Baker issued Plaintiff a corrective action form
noting the November 23, 2013 incident, as well as a November 26, 2013
incident, where Plaintiff received a formal complaint from a customer
regarding unprofessionalism. (Id. at Ex. 20). In response to these incidents,
Plaintiff testifies that her supervisors met with her and provided her with a
“three, four-hour training.” (Dkt. 18, Ex. A at Pg ID 499). On December 2,
2013, XDM also approved a shift change form that Plaintiff submitted. (Dkt.
16, Ex. 21).



On December 23, 2013, Ms. Baker issued Plaintiff a final corrective action
form, recommending Plaintiff’s termination: the form indicated that on
December 18, 2013, Plaintiff received a formal complaint from a customer
stating that Plaintiff was unprofessional and provided misinformation. (Dkt.
16, Ex. 24 at Pg ID 382). The form states further that XDM reviewed one of
Plaintiff’s calls from December 23, 2013 and found that she exhibited
similarly rude behavior and did not demonstrate a desire to assist the
customer. (Id.). Finally, the form noted that Plaintiff “does not accept
ownership of any of these actions and appears unreceptive to coaching.” (Id.).
Ms. Baker states in an affidavit that she “decided to terminate Valerie

Bradley [sic] employment because [she] failed to: (1) perform her job responsibilities
in conformance with Dialogue Marketing’s Expectations; and (2) rectify her
performance problems despite receiving additional training.” (Dkt. 16, Ex. 3 at Pg
ID 179).

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II.

Summary Judgment
Summary judgment is proper where the record 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). A dispute is genuine only 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, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has met that burden, the non-moving party must
point to evidence supporting its position that is “significantly probative” and more
than “merely colorable.” Liberty Lobby, 477 U.S. at 249. “The mere existence of a
scintilla of evidence in support of the [non-movant’s] position will be insufficient” to
defeat a motion for summary judgment. Id. at 252. In deciding whether a
reasonable jury could return a verdict for the nonmoving party, the Court must
view the evidence, and draw all reasonable inferences, in that party’s favor. Id. at
255.

III.

Discussion
A.

Plaintiff’s Michigan ELCRA Claim for Race Discrimination

Plaintiff claims that XDM discriminated against her on the basis of race in
violation of the Michigan Elliot Larsen Civil Rights Act (Michigan ELCRA). M.C.L.
§ 37.2202(1)(a). In pertinent part, the Michigan ELCRA provides:

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(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise
discriminate against any individual with respect to employment
compensation, or a term, condition, or privilege of employment,
because of religion, race, color, national origin, age, sex, height, weight
or marital status.
Id. In deciding Michigan state law claims, the Court applies the substantive law
from that state. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
A plaintiff can defeat a defendant’s motion for summary judgment on a race
discrimination case under the Michigan ELCRA by producing direct or
circumstantial evidence of racial bias. Hazle v. Ford Motor Co., 464 Mich. 456, 462
(2001). Because Plaintiff does not offer direct evidence that XDM discriminated
against her on the basis of race, the Court will analyze her claim under the legal
framework that Michigan courts apply when adjudicating a claim for race
discrimination under the Michigan ELCRA based on circumstantial evidence—i.e.
the McDonnell Douglas burden-shifting framework.8 Id.
Under McDonnell Douglas, a plaintiff first must establish a prima facie case
of discrimination by presenting evidence that (1) she belongs to a protected class, (2)
she suffered an adverse employment action, (3) she was otherwise qualified for the
position, and (4) the job was given to another person under circumstances giving
rise to an inference of unlawful discrimination. Id. at 463 (citing Lytle v. Malday,
458 Mich. 153 (1998). If the plaintiff sufficiently establishes these elements, a
rebuttable presumption of discrimination arises, and the burden shifts to the

In her response to XDM’s motion for summary judgment, Plaintiff also structures her
argument using the McDonnell Douglas framework. (Dkt. 18 at Pg ID 400-01).
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defendant to articulate a legitimate, nondiscriminatory reason for its employment
decision. Id. at 463-65. If a defendant successfully articulates such a reason, in
order to survive a motion for summary judgment, the plaintiff must then present
evidence creating a genuine issue of material fact as to whether the defendant’s
proffered reason for the employment decision in question was a pretext for
discrimination. Id. at 465-66.
On this record, Plaintiff fails to proffer sufficient evidence to establish a
prima facie case of race discrimination against XDM, and even if she did, XDM has
articulated legitimate, nondiscriminatory reasons for each of the actions it took. In
response, Plaintiff does not demonstrate how any of these reasons were pretext for
unlawful discrimination.
In analyzing Plaintiff’s potential prima facie case, it is undisputed that as an
African American female, she is a member of a protected class. With respect to the
second element, Plaintiff argues that she suffered adverse employment actions
when Ms. Boling refused to post opportunities for promotion or other incentives
openly, denied her request to be trained on a software program for Pepsi Co., and
refused to change Plaintiff’s shift time to the day shift, which Plaintiff considered a
promotion.9 Adverse employment actions are “akin to termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material responsibilities, or other

Plaintiff does not contend that she was denied any of the three jobs she applied for based
on discriminatory animus, nor does she contend that she was terminated on the basis of
discriminatory animus. See supra pp. 5-6. None of these employment decisions, therefore,
are relevant to her claim of race discrimination against XDM.
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indices that might be unique to a particular situation. Chen v. Wayne State Univ.,
284 Mich. App. 172, 202, (2009) (quoting Meyer v. Center Line, 242 Mich.App. 560,
569 (2000). Additionally, there must be an “objective basis for demonstrating that
the employment action is adverse because a plaintiff’s subjective impressions are
not controlling.” Id. (citing Wilcoxon v. Minnesota Mining & Mfg. Co., 235 Mich.App.
347, 363 (1999). On the available record, a reasonable jury could conclude that Ms.
Boling subjected Plaintiff to an adverse employment action when she arbitrarily
declined to inform Plaintiff of opportunities for promotion or other incentives within
XDM. By contrast, the evidence does not raise a genuine issue of fact on the
question of whether being denied a shift change is an adverse employment action
because there is no objective evidence, aside from Plaintiff’s subjective feeling, that
such an action amounted to a promotion (and the fact that XDM approved a shift
change for Plaintiff during the time period when she was ineligible to receive a
promotion is evidence that XDM did not consider such a change to be a promotion.
See supra note 4).10 Likewise, no reasonable jury could conclude that Plaintiff
suffered an adverse employment action when Ms. Boling denied her verbal request

Moreover, the evidentiary record indicates that Plaintiff actually received a permanent
shift change to an earlier shift on July 15, 2013, although she testifies that this shift change
was only temporary. In addition, even if Plaintiff could prove that being denied a shift
change constituted a promotion, and thus an adverse employment action, she does not
present evidence sufficient for a reasonable jury to conclude that a change to the day shift
was awarded to other actors on a discriminatory basis: she does initially claim that two
white males, “Keegan and Scott,” were awarded the day shift, but she is inconsistent on the
question of whether this decision was made when Ms. Boling—the alleged discriminatory
actor—was still working at XDM or at a later time. See supra page 4. Based on this
evidence, the facts are insufficient to raise a genuine issue as to whether the shift change
was actually denied, whether if denied such a denial was an adverse employment action, or
whether if it was an adverse employment action, it was motivated by discrimination.

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to be trained on Pepsi Co. software. Plaintiff presents no evidence that being
approved to attend a training for a new product line was considered to be a type of
promotion. And even if attending such training was tantamount to a promotion,
Plaintiff admits that she eventually was approved for and received this training a
couple of months after making her verbal request to Ms. Boling. The record
therefore shows Plaintiff was not denied this opportunity.
Although a supervisor’s arbitrary decision not to inform an employee of
promotional opportunities would reasonably be considered an adverse employment
action, the record does not raise a genuine issue of fact as to whether, in this case,
Plaintiff was otherwise qualified for these promotions, or that these jobs were given
to other employees under circumstances giving rise to an inference of unlawful
discrimination. Plaintiff has presented no evidence indicating what promotions
were allegedly available at XDM or how she would have been qualified for any of
them. In contrast, XDM has presented a substantial amount of evidence indicating
that Plaintiff repeatedly failed to comply with company policy in the areas of
customer service, collegiality, and punctuality. Moreover, the only evidence Plaintiff
provides that Ms. Boling offered these opportunities to other individuals on the
basis of their race, is Plaintiff’s testimony to her personal impression that Ms.
Boling “favored Caucasians” with respect to these promotional opportunities. This
testimony, without more, fails to cross the threshold of more than a scintilla of
evidence that the summary judgment standard demands.

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Because Plaintiff cannot produce sufficient evidence that Ms. Boling, or
anyone else at XDM, denied her opportunities for promotion (or took any other
adverse employment action against her) on the basis of her race, or that these
opportunities were given to another person under circumstances giving rise to an
inference of unlawful discrimination, Plaintiff fails to meet her burden of
establishing a prima facie case of race discrimination against XDM, and her claim
for race discrimination against the company under the Michigan ELCRA must fail.
Accordingly, XDM’s motion for summary judgment on Plaintiff’s ELCRA claim
against it is GRANTED.

B.

Plaintiff’s Title VII Claim for Unlawful Retaliation

Plaintiff also brings an anti-retaliation claim against XDM under Title VII of
the Civil Rights Act of 1964. Title VII, in relevant part, provides, “It shall be
unlawful employment practice for an employer to discriminate against any of his
employees…because [the employee] has opposed any practice made an unlawful
employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). As is the case for
claims brought under the Michigan ELCRA, a Title VII retaliation claim may be
brought by presenting direct evidence or circumstantial evidence, and where a
plaintiff presents circumstantial evidence to demonstrate unlawful retaliation, a
Court must examine the claim using the McDonnell Douglas burden-shifting
framework. Fuhr v. Hazel Park School Dist., 710 F.3d 668, 673-75. Here, Plaintiff
presents circumstantial evidence of unlawful retaliation: she argues that the facts

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that Rhonda Baker and other XDM supervisors paid increased attention to her
calls, and decided to terminate her four months after she filed an EEOC Charge
demonstrates retaliatory intent.
To establish a prima facie case of retaliation, Plaintiff must present evidence
demonstrating that (1) she engaged in activity protected under Title VII (2) her
exercise of her protected rights was known to at least one supervisor at XDM, (3) an
adverse employment action was subsequently taken against her or she was
subjected to severe or pervasive retaliatory harassment by a supervisor, and (4)
there was a causal connection between the protected activity and the adverse
employment action or harassment. Id. (citing Garner v. Cuyahoga Cnty. Juvenile
Court, 554 F.3d 624. 639 (6th Cir. 2009)).
Plaintiff successfully meets the first two elements of a prima facie claim for
unlawful retaliation: it is undisputed that her decision to file an EEOC Charge is a
protected activity under Title VII, and she testifies that XDM knew of this charge
because she told Ms. Baker that she had filed it. The third element requires either a
showing of an adverse employment action, or of being subjected to a “severe or
pervasive retaliatory harassment” by a supervisor. Plaintiff argues that XDM’s
decision to listen to four of her customer calls in the month of December constitutes
retaliatory harassment because, normally, XDM only listens to two calls per
employee per month. Although this evidence may show that Plaintiff’s conduct was
subject to more than the usual amount of scrutiny, there is no evidence that
listening to two additional calls constitutes “severe or pervasive” harassment. Here,

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the record shows that Plaintiff received two recent customer complaints during this
period and the company’s Quality Insurance Manual states that it is company policy
to use “increasingly severe steps or measures” in response to an employee’s
underperformance. (Dkt. 16, Ex. 5 at Pg ID 248). Under such circumstances,
subjecting Plaintiff’s calls to some additional monitoring does not raise an issue that
“severe and pervasive harassment” was occurring.
The third element of a prima facie case can also be met by a showing of an
adverse employment action, and Plaintiff establishes this element because
termination is clearly an adverse employment action. Plaintiff does not, however,
present evidence sufficient to satisfy the fourth element: that is, to demonstrate a
causal connection between her filing of an EEOC charge and XDM’s decision to
terminate her. Plaintiff contends that the following evidence demonstrates the
causal connection between her EEOC charge and her termination: (1) she was
“terminated within four months of making the EEOC Charge for performance
issues that, based on XDM’s response previously, barely warranted a written
warning,” and (2) her “job performance was generally good, but for a few missteps
that were addressed through one-on-one coaching and additional training.” (Dkt. 18
at 19). But Plaintiff’s assertions regarding her job performance are unsupported by
the evidentiary record: the corrective action form recommending Plaintiff’s
termination indicates that she was terminated for her unprofessional attitude and
for a lack of receptivity to coaching—i.e. the performance issues that, in addition to
her tardiness, various XDM supervisors noted about Plaintiff throughout the

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duration of her employment with the company. Plaintiff’s remaining argument for
causality is temporal proximity, that she was terminated four months after she filed
her EEOC Charge. Given the significant length of time between the EEOC charge
and Plaintiff’s termination, and the weight of the evidence of Plaintiff’s additional
performance problems that occurred in the interim, no reasonable jury could
conclude, on this basis alone, that there exists a causal connection between
Plaintiff’s decision to file a discrimination charge and XDM’s decision to terminate
her. See Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 525 (“Where an adverse
employment action occurs very close in time after an employer learns of a protected
activity, such temporal proximity between the events is significant enough to
constitute evidence of a causal connection for the purposes of satisfying a prima
facie case of retaliation. But where some time elapses between when the employer
learns of a protected activity and the subsequent adverse employment action, the
employee must couple temporal proximity with other evidence of retaliatory conduct
to establish causality”) (citing Cooper v. City of N. Olmstead, 795 F.2d 1265, 12727
(6th Cir. 1986) (holding that the mere fact that Plaintiff was discharged four
months after filing a discrimination claim is insufficient to support an inference of
retaliation).
Because Plaintiff cannot present evidence upon which a reasonable jury could
conclude that there was a causal connection between her filing of the August 8,
2013 EEOC Charge and XDM’s decision to terminate her employment, her claim for

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unlawful retaliation in contravention of Title VII against XDM must fail.11
Accordingly, XDM’s motion for summary judgment on Plaintiff’s retaliation claim
against it is GRANTED.

III.

Conclusion
For the reasons stated above, XDM’s motion for summary judgment is

GRANTED.
SO ORDERED.
Dated: February 3, 2017

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically submitted on February 3,
2017, using the CM/ECF system, which will send notification to all parties.
s/A. Chubb
Case Manager

Moreover, even if Plaintiff did proffer evidence sufficient to establish a prima facie case of
unlawful retaliation against XDM, she still would not be able to meet her burdens under
the McDonnell Douglass framework: XDM has demonstrated that, based on Plaintiff’s
documented, repeated failure to comply with company expectations, they had legitimate,
non-discriminatory reasons to increase the frequency with which they monitored her calls
and to terminate her employment, and Plaintiff has offered no evidence indicating that
these actions were mere pretext for discrimination.

11

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