Waggoner v. Battle Creek, City of
Filing
54
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TERESA WAGGONER,
Plaintiff,
File No. 1:12-CV-827
v.
HON. ROBERT HOLMES BELL
CITY OF BATTLE CREEK,
Defendant.
/
OPINION
This is a gender discrimination case brought under the Civil Rights Act of 1964, 42 U.S.C.
§§ 1981 and 2000e-2, and Michigan’s Elliott-Larsen Civil Rights Act, Mich. Comp. Laws 37.2002.
The matter is before the Court on Defendant’s motion for summary judgment (Dkt. No. No. 41).
Plaintiff has filed a response (Dkt. No. No. 50) to which Defendant has filed a reply (Dkt. No.
No.51). Given the breadth and depth of the written briefs and evidence presented, the Court holds
oral argument is unnecessary for the disposition of the motions. See W.D. Mich. LCivR 7.2(d); see
also Himes v. United States, 645 F.3d 771, 784 (6th Cir. 2011).
Defendant’s motion presents two issues for the Court to resolve. First, whether Plaintiff’s
supervisors, motivated by discriminatory evidence, submitted false or misleading reports about
Plaintiff’s performance. Second, whether such reports were intended by Plaintiff’s supervisors to
cause an adverse employment action. Third, whether the submission of such reports was a proximate
cause of Plaintiff’s termination. Alternatively, whether Plaintiff has established a prima facie case
of gender discrimination under the McDonnell-Douglas burden shifting framework. Having fully
considered the arguments presented, for the reasons that follow, the Court answers these questions
in the negative. Consequently, the Court grants Defendant’s motion.
I.
On January 11, 2013, Defendant filed a motion for summary judgment (Dkt. No. No. 8). On
April 10, 2013, the Court issued an Opinion (Dkt. No. No. 24) and Order (Dkt. No. No. 25) deferring
consideration of Defendant’s motion until the close of discovery. The basic facts of this case were
described at length in the Opinion (Dkt. No. No. 24 at 1–5). The Court will not repeat the facts here
and incorporates its prior discussion by reference. While the disputed facts were laid out with
reasonable specificity at the time of Defendant’s prior motion, the parties have significantly
expanded the record through the course of discovery, and the Court will reference the additional
evidence throughout its analysis as needed.
II.
The Federal Rules of Civil Procedure require the Court to 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). In evaluating a motion for summary judgment
the Court must look beyond the pleadings and assess the proof to determine whether there is a
genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
When the moving party will not carry the burden of proof at trial, the party must identify “those
portions of pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted). A defendant
moving for summary judgment is not required, however, to “support its motion with affidavits or
other similar materials negating the opponent’s claim.” Id.
2
In considering a motion for summary judgment, “the district court must construe the
evidence and draw all reasonable inferences in favor of the nonmoving party.” Martin v. Cincinnati
Gas &Elec. Co., 561 F.3d 439, 443 (6th Cir. 2009) (citing Jones v. Potter, 488 F.3d 397, 403 (6th
Cir. 2007)). Nevertheless, the mere existence of a scintilla of evidence in support of a non-movant’s
position is not sufficient to create a genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such that a reasonable jury
could return a verdict for the non-moving party. Id.; see generally Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1476-80 (6th Cir. 1989). “When opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007).
This case involves claims under Title VII of the Civil Rights Act of 1964 and Michigan’s
Elliott-Larsen Civil Rights Act arising from the same set of operative facts. In such a situation, the
same set of legal standards are applicable to both claims. Sutherland v. Mich. Dept. of Treasury, 344
F.3d 603, 614 n. 4 (6th Cir. 2003). “‘The ultimate question in every employment discrimination case
involving a claim of disparate treatment is whether the plaintiff was the victim of intentional
discrimination’” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.2009) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000)). A plaintiff must offer “direct evidence
of discrimination or introduce circumstantial evidence that would allow an inference of
discriminatory treatment.” Johnson v. Kroger Co., 319 F.3d 858, 864-65 (6th Cir.2003). Here the
parties have presented arguments related to both purported direct and circumstantial evidence of sexbased discrimination. The Court will address these arguments in turn.
3
A.
Direct Evidence: “Cat’s Paw” Theory of Liability
In a discrimination case, “direct evidence is proof that, if believed, compels ‘the conclusion
that unlawful discrimination was at least a motivating factor in the employer’s actions.’” Kuhn v.
Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir. 2013) (quoting Jacklyn v. Schering-Plough
Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). Here, Defendant argues that
direct evidence would be “a statement by a person that an action was taken because of a person’s
gender . . . There is no such evidence her [sic] of such a statement.” (Def.’s Br., Dkt. No. No. 42 at
19.) Plaintiff, however, argues that comments about female drivers made by her supervisor, Debra
Crippen, and Crippen’s substitute, Scott McKenzie, show direct evidence of discriminatory animus
that led to Plaintiff’s discharge. (Pl.’s Resp., Dkt. No. No. 50 at 6.) Crippen and McKenzie,
however, were not the ultimate decision-makers with regard to Plaintiff’s continuing employment
and Defendant ultimately terminated Plaintiff on the recommendation of Richard Werner.
When a supervisor with alleged discriminatory animus is not the ultimate decision-maker,
a plaintiff can still demonstrate discrimination with direct evidence by establishing a “‘causal
nexus’ between the ultimate decision-maker’s decision to [terminate] the plaintiff and the
supervisor’s discriminatory animus.” Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 350 (6th Cir.
2012) (quoting Madden v. Chattanooga City Wide Serv. Dept., 549 F.3d 666, 677 (6th Cir. 2008)).
One way to establish this nexus is by presenting evidence of “cat’s paw” liability. Chattman, 686
F.3d at 551.1
1
The term “cat’s paw” was introduced to the legal lexicon by Judge Posner in Shager v.
Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). The term comes from one of Æsop’s fables in which
a clever monkey entices a cat into retrieving roasting chestnuts from a fire, only to steal the nuts and
leave the cat with nothing but a burnt paw. The term is shorthand for one who uses another as a
means to accomplish an unsavory task.
4
The Supreme Court held that cat’s paw liability is established when “a supervisor performs
an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse
employment action, and . . . that act is a proximate cause of the ultimate employment action.” Staub
v. Proctor Hosp., ___ U.S. ___, ___, 131 S. Ct. 1186, 1194 (2011). An employer still may be liable,
even if it conducts an independent investigation. Id. at 1193. “[I]f the employer’s investigation
results in an adverse action for reasons unrelated to the supervisor’s original biased action . . . then
the employer will not be liable.” Id. The biased report of the supervisor “may remain a causal factor
if the independent investigation takes it into account without determining that the adverse action
was, apart from the supervisor’s recommendation, entirely justified.” Id.; see also Shazor v. Prof’l
Transit Mgmt., Ltd., No. 13-3253, 2014 WL 627406, at *6 (6th Cir. Feb 19, 2014); Chattman, 686
F.3d at 350–52.
Plaintiff argues that her supervisor, Debra Crippen, and Crippen’s substitute, Scott
McKenzie, harbored discriminatory animus toward women and that they—motivated by that
animus—submitted “false and misleading” reports to those with the authority to fire Plaintiff for the
purpose of having Plaintiff fired. (Resp., Dkt. No. No. 50 at 6.) Specifically, Plaintiff alleges that:
(1) Crippen “made clear that she . . . wanted to hire male drivers instead of [Plaintiff].” (id. at 5);
(2) Crippen referred to other female drivers as, “‘bitches’, ‘stupid bitches’, and ‘typical niggers.’”
and made other comments derisive of minority female drivers (id.); (3) Crippen “told [Plaintiff] that
men are ‘easier to train,’ did not get into ‘cliques,’ and did what they were told to do.” (id. at 6); (4)
Crippen told Plaintiff on her second day that “she never wanted [Plaintiff] hired” and that Plaintiff
“wouldn’t make it through probation.” (id. at 9); (5) Crippen did not want to hire Plaintiff because
she wanted to hire two men, but could not because their references were bad (id.); (6) Plaintiff
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received inadequate training, and specifically never drove the Northeast Capital route during training
(id.); (7) McKenzie stated that Defendant would not be hiring a woman for the open position (id.
at 13); (8) McKenzie observed the two other probationary trainees2 make mistakes similar to
Plaintiff, but did not recommend those trainees be terminated (id. at 13); (9) McKenzie stated that
“If we are going to let someone go, it’s going to be a woman.” (Id. at 26; Op., Dkt. No. No. 24 at
3); (10) Crippen fabricated accounts of Plaintiff’s insubordination, particularly with respect to her
wheelchair training (Pl.’s Resp., Dkt. No. No. 50 at 27); (11) Crippen selectively edited a video of
Plaintiff smoking at the entrance of a bus “so that Werner would not see [Plaintiff] putting out the
cigarette” (id.); (12) Crippen did not report to Werner that she and others had smoked in close
proximity to the bus without consequence (id.); (13) Crippen falsely reported to Wagner that
Plaintiff had driven the Northeast Capital route on several occasions (id.); (14) Crippen failed to
report that the trainees were allowed to talk with each other and with passengers during training
(id.); (15) Crippen failed to report that “she and others had let persons off at non-stops when there
was a compelling reason to do so” (id.); (16) McKenzie falsely reported to Crippen that Plaintiff
almost ran a red light, and failed to report that another female trainee “almost sailed through a light”
(id. at 28); and (17) both Crippen and McKenzie exaggerated or falsified Plaintiff’s allegedly
immature behavior, such as making braking and accelerating noises while driving (id.)
Plaintiff’s argument boils down to the following three points: (1) there are genuine fact
issues concerning Crippen and McKenzie’s discriminatory animus; (2) there are genuine fact issues
about the truthfulness of reports Crippen and McKenzie made to those with authority to terminate
Plaintiff; (3) there are genuine fact issues regarding whether Crippen and MacKenzie’s reports were
a proximate cause of Plaintiff’s discharge.
2
Sheldon Williams (male) and Marcia Govier (female). See Opinion, Dkt. No. No. 24 at 2.)
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1.
Discriminatory Animus
There is an issue of fact as to whether Crippen made statements that women were “bitches”,
“stupid bitches”, harder to train than men, or that she would have preferred to hire two men rather
than Plaintiff. Plaintiff testified in her depositions and affidavits that Crippen made such statements
in her presence. This evidence is contradicted by evidence submitted by Defendant, notably the
affidavit of Plaintiff’s fellow trainee Marcia Govier, who testified that she never heard Crippen make
such statements. (Dkt. No. No. 42-1.) Nevertheless, Plaintiff’s affidavit, pertaining to events of
which she has personal knowledge, is sufficient to create a triable issue of fact as to whether Crippen
made such statements. See, e.g., Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 239 (6th Cir.
2010).
McKenzie made an isolated statement to the trainees about needing to hire male drivers
instead of females. McKenzie admits making this statement, and Defendant argues that it was made
in the context of McKenzie joking around with the trainees. This contention is underscored,
Defendant argues, by the fact that all three trainees had already been hired, and merely needed to
pass probation in order to keep their jobs. Plaintiff argues, however, that McKenzie gave her an “evil
grin” after making this statement and that Plaintiff understood McKenzie to mean that she would
not pass probation.
Viewing these statements in the light most favorable to Plaintiff, they might be direct
evidence of discriminatory animus. In Chattman, a supervisor made several baldly racist jokes and
comments. Chattman, 686 F.3d at 343. The court held that “no inference is required to gleam from
those statements that [the supervisor] harbored racial animus towards African Americans.” Id. at
347. However, in Shazor, when analyzing e-mails between supervisors allegedly showing
discriminatory animus based on gender, the court stated:
7
One of these e-mails unambiguously reveals sexist animus—Scott’s statement that
Plaintiff was “one hellava bitch.” But the other e-mails are more veiled. . . Viewed
as a whole, Setzer’s and Scott’s correspondence might only show “occasional[ ]”
sexist and racist comments, which would not be enough to establish direct evidence
of discriminatory intent.
Shazor, 2014 WL 627406, at *7 (internal citations omitted).
Likewise the sexist comments Plaintiff alleges she heard seem to be of the type in Shazor.
While there is an undercurrent of sexist animus, when taken together with the entire record of
Plaintiff’s interactions with Crippen and McKenzie, the comments “might only show ‘occassional[]’
sexist . . . comments” that are insufficient to establish direct evidence of discriminatory intent. See
Shazor, 2014 WL 627406, at *7. Even though, based on the dicta in Shazor, Plaintiff might have
shown discriminatory animus on the part of Crippen and McKenzie, she has failed to provide direct
evidence that “if believed, requires the conclusion that unlawful discrimination was at least a
motivating factor”in her firing. Weberg v. Franks, 220 F.3d 514, 524 (6th Cir. 2000). Rather, the
conclusion that Crippen or McKenzie’s animus, if any, was a motivating factor, would require an
inference on the part of the fact finder. See Norbuta v. Loctite Corp., 181 F.3d 102 (6th Cir. 1999)
(holding that direct evidence must prove a fact without inferences or presumptions); see also Smith
v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998) (“Direct evidence of discrimination is the
equivalent of an employer stating ‘I fired you because you are disabled.’”). Because Plaintiff has
failed to offer direct evidence that Crippen and McKenzie’s reports were motivated by
discriminatory animus, there is no genuine issue of material fact on this issue.
2.
Crippen and McKenzie’s Reports
Plaintiff’s direct evidence theory fails for a second, independent reason. Plaintiff argues that
her “openly biased supervisors have submitted false or misleading” reports that led to her
8
termination. (Pl.’s Resp., Dkt. No. No. 50 at 6.) Plaintiff argues that Crippen and McKenzie’s reports
that she:
(1) made braking and acceleration noises while driving;
(2) wandered off during safety training;
(3) did not remember routes, missed stops on routes, missed turns, almost ran a red light,
failed to drop a customer off at his stop, and was easily distracted;
(4) wore shoes not approved as part of her uniform;
(5) repeatedly opened the bus door by letting her knee hit a switch;
(6) took excessive breaks;
(7); engaged in excessive conversation; and
(8) drove too close to the side of the road
were either wholly inaccurate or selectively reported negative facts about her while leaving out
positive attributes of her performance. (See generally Ex. 11, Dkt. No. No. 44-1; Ex. 12, Dkt. No.
No. 44-2.) Plaintiff disagrees with nearly every contention of Crippen and McKenzie’s reports, or
alternatively offers differing explanations for her actions.
For example, one incidence of alleged insubordination occurred when Crippen was training
Plaintiff and other probationary employees on how to properly secure a wheelchair. Plaintiff
describes the incident as follows:
[Plaintiff] was standing outside the coach looking directly at Crippen as she
demonstrated how to strap the chair down. Soon, however, [Plaintiff] felt a rumbling
in her stomach and moved about ten feet away because she had to relieve the gas
pressure building up inside her. She did and then returned immediately to the door.
When Crippen asked where she had been, [Plaintiff] asked Crippen if she wanted the
truth. When Crippen said that she did, [Plaintiff] said she had moved because she had
to fart, at which point everyone burst into laughter []. [Plaintiff] then took her turn
strapping down the wheelchair, fastening it in the way that she had always done in
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Harper Creek3. When Crippen told her that was not the way she wanted it done,
[Plaintiff] complied, even though she believed that the Harper Creek method was
safer [].
(Resp., Dkt. No. No. 50 at 11.) Crippen testified that Plaintiff wandered off during wheelchair
training and offered no explanation for why she was not paying attention. Crippen further avers after
Plaintiff stated she knew how to attach a wheelchair, Plaintiff attached it unsafely.
Plaintiff also attempts to call into question Crippen’s credibility by pointing to alleged
discrepancies in her testimony regarding McKenzie’s report to her about Plaintiff’s alleged job
deficiencies. (Id. at 15.) She also argues with regard to Crippen’s ride-along with Plaintiff that
“Crippen has given three different descriptions of what happened on the day that [Plaintiff] cried
that are so widely divergent that they raise the inference that she is not telling the truth about
anything.” (Id. at 17.) Plaintiff focuses on alleged inconsistencies in Crippen’s testimony as to when
Plaintiff broke down and cried during training. (Id. at 16–18.)
According to McKenzie’s report, Plaintiff made numerous mistakes while under his
supervision. Plaintiff alleges that during this time, she and the other trainees made similar mistakes
“because they [were] new.” (Pl.’s Resp., Dkt. No. No. 50 at 13.) Plaintiff further alleges that
Williams hit a curb and nearly ran a red light and that Govier failed to call out ADA stops and
locked up her brakes. (Id.) Plaintiff argues that McKenzie singled her out for Crippen’s scrutiny by
selectively reporting her mistakes, while covering up the mistakes of the other trainees. (Id. at
14–15.) Moreover, Plaintiff argues that McKenzie fabricated the mistakes she made in order to get
her fired. (Id.)
McKenzie reported that during one training route, among other things, Plaintiff kept allowing
her knee to strike the switch that activates the automatic bus doors. In her brief Plaintiff argues that
3
Plaintiff previously was a part-time bus driver for Harper Creek Community Schools. (Pl.’s
Resp., Dkt. No. No. 50 at 7.)
10
“because she is 6’4” tall, her legs could not fit into the driving area of one of the older coaches.” (Id.
at 14.) Plaintiff does not contradict, however, McKenzie’s report that after a third verbal reprimand,
she was able to avoid opening the door with her knee again for the remainder of the driving exercise.
(Def.’s Ex. 11, Dkt. No. No. 44-1.)
Throughout her brief, Plaintiff puts great emphasis on the “false” and “misleading” nature
of the reports. In fact, Plaintiff argues that a necessary element of cat’s paw liability is that the
reports of the discriminatory supervisor be false or misleading. (Pl.’s Reps., Dkt. No. No. 50 at 23.)
This, however, is not the state of the law. Staub, Shazor, and Chattman all outline the contours of
cat’s paw liability, but no case stands for the proposition that a biased supervisor must lie to or
mislead someone with authority to take adverse employment action in order for the employer to be
liable. Therefore, the Court need not reach the issue of whether the reports submitted by Crippen
(Def.’s Ex. 12, Dkt. No. No. 44-2) and McKenzie (Def.’s Ex. 11, Dkt. No. No. 44-1) are false and
misleading, but rather, must decide if a genuine issue of fact remains as to whether those reports
were the proximate cause of Plaintiff’s termination. See Chattman, 686 F.3d at 350.
3.
Proximate Cause
In order for liability to attach to an employer under a cat’s paw theory, the action of a
supervisor, motivated by a discriminatory animus, must be a proximate cause. Shazor, 2014 WL
627406, at *6. The biased action of an intermediate supervisor, however, “need not be the sole cause
of the adverse action.” Chattman, 686 F.3d at 352. An employer is not liable, however, “if ‘the
employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s
original biased action.’” Id. (quoting Staub, 131 S.Ct. at 1193). An independent investigation by the
employer is not a per se defense, however. Id. In order to escape liability, the employer must
11
determine that the adverse action is, “apart from the [biased] supervisor’s recommendation, entirely
justified.” Id. (quoting Staub, 131 S.Ct. at 1193).
Here, although the Court has determined that Plaintiff has failed to raise a genuine fact issue
as to whether Crippen and McKenzie were motivated by discriminatory animus, the Court further
holds that Plaintiff has failed to raise a genuine fact issue as to whether her supervisors’ alleged
discriminatory actions were a proximate cause of her termination.
Defendants have presented evidence of an independent investigation. Crippen saved portions
of a video recording made by the on-board camera system on the bus Plaintiff drove carrying paying
passengers, without supervision. (See Opinion, Dkt. No. No. 24 at 4.)
[W]hen Crippen watched the video the next day, it showed Plaintiff engaging in a
twelve minute long conversation with passengers (a safety risk), making sound
effects, missing stops when requested by passengers and then blaming the
passengers, missing Americans with Disability Act required call-outs of upcoming
stops, and stopping in a location not authorized as a bus stop. Werner also reviewed
this video and noticed the same violations.
(Id.) In fact, Werner testified further, stating that he was the ultimate decision-maker as to whether
to hire Plaintiff as a full time employee (Werner Aff., Dkt. No. No. 9-1 ¶ 4), and that he reviewed
the video of Plaintiff’s driving himself. (Id. ¶ 16.) Werner testified that both Crippen and McKenzie
had come to him with their concerns about Plaintiff’s performance prior to his viewing of the video.
(Id. ¶ 12.) When Werner watched the video, he observed the same troubling behavior as Crippen,
as described above. (Id. ¶ 16.) On his decision to terminate Plaintiff, Werner stated:
Notwithstanding Plaintiff’s poor performance during training, I would have
terminated any probationary Coach Operator based alone on the twelve-minute
nearly continuous conversation with the passenger because of the danger that such
a distraction presents to passengers, which was likely the cause of Plaintiff missing
stops and running the stop sign.
(Id. ¶ 19.)
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Plaintiff argues that the video shows that she only had an “intermittent conversation” with
a passenger, that she never received training to avoid excessive talking with passengers, and that
other trainees spoke with passengers during training routes. (Pl.’s Resp., Dkt. No. No. 50 at 20–21.)
Plaintiff’s arguments lack merit. First, whether the conversation was intermittent or continuous,
Werner in his independent judgment found it serious enough to warrant termination. Second,
Plaintiff’s assertion that she never received training on conversations is belied by the fact that she
placed her initials on a training log stating that she had received the employee manual. (Def.’s Ex.
13, Dkt. No. No. 44-3.) That manual states, “Although you want to b e pleasant, try to avoid too
much conversation with the passengers. This is sometimes hard to do, but too much conversation
can distract you and create a safety problem.” (Def.’s Ex. 4, Attachment E, Dkt. No. No. 9-4 at 27.)
Finally, the record establishes that the incidents Plaintiff reports when other trainees spoke to
passengers occurred when the trainees themselves were riding the bus while another trainee drove.
In sum, Plaintiff has failed to present evidence that would create a genuine fact issue as to
whether the allegedly biased acts of Crippen and McKenzie were a proximate cause of her
termination. Rather, Defendant has established that after an independent investigation, Werner
decided to terminate Plaintiff based on her poor performance and behavior that endangered
passenger safety. Defendant is therefore entitled to summary judgment on Plaintiff’s direct evidence
theory of liability.
B.
Circumstantial Evidence: McDonnell Douglass burden-shifting framework
Even if a plaintiff dos not have direct evidence of gender discrimination, she can prevail on
a Title VII case by presenting circumstantial evidence of discrimination. Title VII claims based on
circumstantial evidence are evaluated under the familiar McDonnell Douglas burden shifting
13
framework. Serrano v. Cintas Corp., 699 F.3d 844, 892 (6th Cir. 2012). First, a plaintiff must
present a prima facie case of discrimination. Id. at 893. If the plaintiff is successful, the burden then
shifts to the defendant to show a non-discriminatory reason for the adverse employment action. Id.
Finally, if the defendant shows a non-discriminatory reason for the adverse action, the burden shifts
back to the plaintiff to show that the defendant’s proffered reason is merely a pretext for illegal
discrimination. Id. Here, because Plaintiff cannot establish a prima facie case, Defendant is entitled
to summary judgment.
To establish a prima facie case, Plaintiff must present “evidence from which a jury could find
that ‘(1) [plaintiff] is a member of a protected class; (2) [plaintiff] was qualified for [the] job; (3)
[plaintiff] suffered an adverse employment decision; and (4) [plaintiff] was replaced by a person
outside the protected class or treated differently than similarly situated non-protected employees.’
Id. (quoting White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008). Defendant argues
that Plaintiff cannot establish a prima facie case because she is not qualified for the job of a bus
driver, therefore failing to meet the second prong of the McDonnell Douglas standard. (Def.’s Br.,
Dkt. No. No. 42 at 20.) Plaintiff does not respond to these arguments in her brief, preferring to focus
on direct evidence, as discussed above.
To be qualified for a job, the plaintiff must show she was performing her job “at a level that
met [her] employer’s legitimate expectations.” Ang v. Proctor & Gamble Co., 932 F.2d 540, 548
(6th Cir. 1991) (internal citations omitted). Further, a plaintiff’s mere disagreement with her
supervisor’s judgment of the quality of her work does not raise a genuine issue of material fact. Id.
Defendant has produced voluminous evidence that Plaintiff’s work as a bus driver fell below the
legitimate expectations of her supervisors. This evidence is rebutted only by Plaintiff’s disagreement
14
with her supervisor’s judgment. Such is insufficient to raise a genuine fact issue. As just one
example, Plaintiff’s unsafe, continuous conversation while driving her route, video of which the
Court has reviewed, demonstrates that she was not qualified for her job. Plaintiff therefore cannot
establish a prima facie case of discrimination, and summary judgment in favor of Defendant is
appropriate.
Even if Plaintiff could establish a prima facie face, Defendant has offered extensive proofs
as to a non-discriminatory reason for Plaintiff’s firing: namely, that she was insubordinate and her
driving habits created a safety hazard for Defendant’s passengers.
Finally, the Court is convinced that Plaintiff cannot establish that Defendant’s proffered
reason for her termination is pretextual. This conclusion is undergirded by the fact that one of
Plaintiff’s co-trainees, Marcia Grover, is also female. Grover successfully completed her
probationary period of employment, and as of the date of her affidavit was still an employee of
Defendant. Further, after the probationary period ended, Plaintiff’s other co-trainee, Sheldon
Williams, resigned. Plaintiff and Williams’s positions were ultimately filled by a man and a woman.
No reasonable jury could find that Defendant’s proffered reason for firing Plaintiff was a pretext for
gender-based discrimination when Defendant retained one female bus driver and hired another.
Therefore, Defendant is alternatively entitled to summary judgment on a circumstantial evidence
theory of liability.
III.
For the foregoing reasons, the Court holds there are no genuine issues of material fact with
regard to Plaintiff’s claims under Title VII of the Civil Rights Act of 1964 or Michigan’s ElliotLarsen Civil Rights Act. The Court will therefore enter summary judgment in favor of Defendant.
The Court will issue an Order consistent with this Opinion.
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
Dated: March 28, 2014
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