Martinez-Gonzalez et al v. Lakeshore Staffing, Inc. et al

Filing 37

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ESTEFANY MARTINEZ-GONZALEZ
and IMELDA LUCIO LOPEZ,
Plaintiffs,
Case No. 1:16-CV-1243
v.
HON. GORDON J. QUIST
LAKESHORE STAFFING, INC.
and RANDELL G. PRICE,
Defendants.
_________________________________/

OPINION
Plaintiffs, Estefany Martinez-Gonzalez and Imelda Lucio Lopez, filed their Complaint
against Defendants, Lakeshore Staffing and its president and owner Randell Price (collectively,
“Lakeshore”), on October 18, 2016. (ECF No. 1.) Martinez and Lopez alleged five counts of
discrimination because of their Mexican nationality. The counts will be more fully described later
in the Opinion.
On November 30, 2017, Lakeshore filed a motion for summary judgment and dismissal for
failure to state a claim, moving the Court to dismiss the Complaint in its entirety. (ECF No. 28.)
Lakeshore asserts that Martinez and Lopez were assigned tasks that are within their job description
and are typically assigned to all employees in that position; that Martinez and Lopez are paid above
the pay scale and are among the highest paid crew members; that Martinez and Lopez have not
suffered any adverse employment actions; any claims of harassment are based on a few minor
incidents that do not rise to an actionable level; and that there is no legal basis for the claims against
Price in his individual capacity.

For the following reasons, the Court will grant Lakeshore’s motion to dismiss for failing
to state a claim on the Equal Pay Act claim, 1 and will grant summary judgment on the remaining
claims.
I.

FACTS

Lakeshore staffing supplies employees to nineteen franchised McDonald’s restaurants in
the West Michigan area, employing around one thousand people. Martinez and Lopez have been
employed by Lakeshore since 2009 and have worked only at a McDonald’s on West Leonard
Street in Grand Rapids, Michigan. Both Martinez and Lopez worked as cooks, a position classified
under the broader designation of “crew member.” Crew members work primarily at the front
counter taking orders or cooking in the kitchen. Lakeshore also employed individuals classified
as “maintenance,” who handled typical maintenance duties such as cleaning the bathrooms,
cleaning windows, cleaning kitchen vents, and so forth. However, crew members had secondary
duties that they did regularly, including touching up the bathrooms, sweeping the floors, checking
the parking lot for litter, and so forth. The written job description for “crew” includes, in pertinent
part, the responsibility to “[k]eep general area clean” and “[c]onduct sweeps and mops.” (ECF
No. 28-12 at PageID.286.)
Lakeshore submitted affidavits of four different managers from the Leonard Street
McDonald’s, in which each manager stated that all crew members are assigned cleaning tasks.
The managers include specific examples, e.g., Terry Wilber, an African-American crew member,
takes out the trash from his area daily, sweeps and mops the floors, spot cleans the bathroom, and
cleans windows and doors; Sarah LaBelle, a Caucasian crew member, takes out trash, sweeps and

1

The Equal Pay Act does not apply to claims based on national origin, and Martinez and Lopez failed to state a claim
alleging gender-based pay disparity. Accordingly, they agreed to dismiss their claim and withdraw it. The Court will
dismiss this claim with prejudice.

2

mops, cleans the grill, cleans the bathrooms, and cleans windows and doors. Maricela Pena, who
is now a manager, specifically stated that
[i]n [her] experience as a crew member, all crew members are regularly assigned
to do cleaning tasks such as spot cleaning the bathrooms, windows and doors,
mopping and sweeping the floors, and taking out the trash. . . . [E]mployees from
all racial and ethnic backgrounds . . . have all been called upon to perform the[se]
tasks . . . on a regular and routine basis.
(ECF No. 28-9 at PageID.228.) Two Caucasian crew members, Veronica Beltran and Brad Street,
also signed affidavits. Beltran stated,
As a crew member, I am most often assigned to work as a cook on the grill.
However I am regularly assigned other tasks. Examples of the other things I do on
a daily or almost daily basis are: take out the trash including boxes and containers
(I do this almost every hour), clean glass doors and windows, clean bathrooms,
sweep and mop the floors and outside the restaurant, clean the kitchen equipment
and the grill.
(ECF No. 28-10 at PageID.231.) Street’s declaration regarding his regular duties as a crew
member is quite similar. (ECF No. 28-11 at PageID.234.)
The affidavits consistently state that there is no policy regarding the language to be spoken
at the Leonard Street McDonald’s, and that Spanish is regularly spoken. Pena, herself a fluent
Spanish speaker, stated “[t]here is no ‘English only’ policy . . . and there never has been. . . . There
has never been any problem or issue with [employees speaking Spanish regularly].” (ECF No. 289 at PageID.229.)
Pay for crew members is set between minimum wage and $9.50 per hour. (ECF No. 2812 at PageID.241.) Martinez and Lucio were paid more than $9.50 per hour beginning March 1,
2016, and were frequently the, or among the, highest paid employees. (ECF No. 28-12 at
PageID.242–46.)
Randell Price is the owner and president of Lakeshore, and has never interacted with
Martinez or Lopez.
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II.

FACTS PARTICULAR TO MARTINEZ AND LOPEZ

Martinez and Lopez assert that although they may technically be classified as “crew
members,” they “were primarily responsible for cooking and were not responsible for any of the
other positions.” Martinez and Lopez allege that they were forced to sweep the interior and
exterior of the restaurant, clean doors and windows, clean bathrooms, take out trash, and remove
ice during the winter.
Martinez, in particular, asserts that she was required on a regular basis to sweep when the
restaurant first opened for the day; spread salt in the winter; occasionally take trash bags outside;
clean the grill she used in the kitchen several times; and to clean the bathroom three times. (ECF
No. 28-3 at PageID.192–94.) Lopez, in particular, asserts that she had to sweep outside on three
occasions since 2009; clean doors or windows twice; clean the bathroom glass and sink once; take
kitchen trash out; and clean the refrigerator. (ECF No. 28-4 at PageID.202–04.) Martinez and
Lopez admit that they do not know if other crew members had these types of duties. (ECF No.
28-3 at PageID.193; ECF No. 28-4 at PageID.203.)
Martinez and Lopez assert that management and other employees treated them rudely, and
there were other employees who were better suited to perform these tasks. They allege that,
because of their national origin, they did not receive regular raises and received lower
compensation than they should have. They also assert that they were asked to speak English only
and not to speak Spanish, and were yelled at and disciplined on multiple occasions because of their
national origin. Lopez alleges that she was disciplinarily written-up because she did not cook fresh
fish, but she says that she did not realize the manager was talking to her. Martinez alleges that she
was called “stupid” by a manager, written-up for being three minutes late to work, and written up
for having her shirt untucked despite the fact that Lakeshore did not provide her with adequate

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pants. Martinez and Lopez also cite derogatory comments by Crystal—then an employee—that
were directed at Mexicans.
Martinez and Lopez admit that they had no interaction with Price but assert “just because
he did not have any direct contact with the Plaintiffs’ [sic] does not mean he has nothing to do with
how they were managed, and the policies that were implemented.” (ECF No. 31 at PageID.306.)
III.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts
are facts which are defined by substantive law and are necessary to apply the law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A dispute is genuine if a
reasonable jury could return judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to the non-moving party, but
may grant summary judgment when “the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.” Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236
(6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S. Ct. 1348, 1356 (1986)).
IV.

DISCUSSION

Lakeshore argues that it is entitled to summary judgment because Martinez and Lopez were
not discriminated against; suffered no adverse employment action; were among the highest paid
employees in their position; experienced no harassment necessary to support a claim; and Price
had no involvement in any of the allegations.

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A. Counts I & III: Discrimination
Martinez and Lopez’s First and Third Counts allege illegal discrimination on the basis of
national origin, brought under Title VII, U.S.C. § 2000(e)(2) and the Michigan Elliott-Larsen Civil
Rights Act, M.C.L. § 37.2101, respectively. The parties agree that the two claims, federal and
state, are analyzed under identical standards.
Discrimination claims based on circumstantial evidence are analyzed under the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
Under McDonnell Douglas, the plaintiff first has the burden of establishing a prima facie case; if
the plaintiff meets this burden, a presumption arises that the defendant discriminated against her
in violation of Title VII. Wright v. Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006). The
burden then shifts to the defendant to put forth a legitimate, non-discriminatory reason for the
alleged adverse treatment; if the defendant meets this burden, then the presumption falls away. Id.
at 706–07. The burden then shifts back to the plaintiff to show that the defendant’s legitimate,
non-discriminatory reason was merely pretext for actual discrimination. Id. at 707. The plaintiff
always bears “the ultimate burden of proving, by a preponderance of the evidence, the intent to
discriminate.” Id. (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 2749
(1993)).
In order to establish a prima facie case, the plaintiff must show that “(1) he or she was a
member of a protected class; (2) he or she suffered an adverse employment action; (3) he or she
was qualified for the position; and (4) he or she was replaced by someone outside the protected
class or was treated differently than similarly-situated, non-protected employees.” Id. (quoting
DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)).

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1.

Adverse Employment Action

“An adverse employment action is a ‘materially adverse change in the terms or conditions
of employment because of [the] employer’s conduct,’ which ‘must be more disruptive than a mere
inconvenience or an alteration of job responsibilities.’” Mitchell v. Vanderbilt Univ., 389 F.3d
177, 182 (6th Cir. 2004) (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.
1996)). Courts must consider “indices that might be unique to a particular situation.” White v.
Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 799 (6th Cir. 2004) (quoting Kocsis, 97 F.3d at
886), aff'd, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). Petty slights and trivial
annoyances do not arise to material adverse employment actions. Id. at 799.
Martinez and Lopez argue that they suffered adverse employment actions because they
“were asked to perform menial tasks that were not within their job description, were written up,
and were chastised for various different actions, simple [sic] due to their national origin.” (ECF
No. 31 at PageID.310.) However, Lakeshore provided a number of declarations from other
employees attesting that the purported allegedly menial tasks were regularly and routinely done
by any and all crew members—regardless of their national origin or race. If anything, the instances
upon which Martinez and Lopez rely merely amount to petty slights and trivial annoyances with
which other Lakeshore employees routinely deal while working at McDonald’s. Martinez and
Lopez disagree that their job responsibilities fall under Lakeshore’s written responsibilities for
crew members, instead they argue that their “primary duty” was cooking; this issue is not a genuine
dispute of material fact because Kocsis explicitly stated that an alteration of job responsibilities is
not a materially adverse employment action.
Martinez also cites instances in which she was written-up for disciplinary reasons and
alleges that they were “clearly” adverse employment actions. Martinez does not argue, and indeed

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cannot, that the write-ups were not based on a violation of employer policy. Instead, she argues
that she was “only three minutes late,” that she “never saw anyone else get a write up as quickly
and as publically as she did,” and that her shirt “was untucked because Lakeshore Staffing had
failed to provide her with adequate uniform pants.” (ECF No. 31 at PageID.312.) Discipline for
a legitimate workplace violation without some negative impact cannot arise to a material adverse
employment action. See Cecil v. Louisville Water Co., 301 F. App’x 490, 501 (6th Cir. 2008)
(finding no materially adverse action where negative performance evaluation did not significantly
affect the plaintiff’s salary or professional advancement); Allen v. Michigan Dep’t of Corr., 165
F.3d 405, 409–10 (6th Cir. 1999) (rejecting disciplinary actions in the form of counseling
memoranda as an adverse action).
Martinez and Lopez also allege that Lakeshore committed a materially adverse action
against them by not giving them raises as regularly as required under company policy. This
allegation is addressed below regarding Martinez and Lopez’s second claim and, for similar
reasons, fails here as well.
In short, Martinez and Lopez fail to establish adverse employment action as required to
state a prima facie case.
2.

Different Treatment from Similarly Situated Employees

The fourth element is also lacking. Martinez and Lopez fail to show that they were treated
differently than similarly-situated, non-protected employees, i.e., employees without Mexico as a
nation of origin. The sworn affidavits provided by Lakeshore show that other employees regularly
did the allegedly menial tasks to which Martinez and Lopez object, and the affidavits discount any
allegation of an anti-Spanish policy—including statements from other employees who often spoke
Spanish at work without any issues.

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In addition to their factual failings, Martinez and Lopez offer no legal support that their
factual allegations amount to a materially adverse employment action. Instead, they attack the
affidavits of Lakeshore employees on the basis that the employees, who swore under penalty of
perjury to the truth of their statements, “could stand to lose their job” and are therefore not credible.
Martinez and Lopez assert that the Court cannot consider these affidavits because it would require
a credibility determination that is inappropriate at the summary judgment stage. “Though the
prospect of challenging a witness[’s] credibility is not alone enough to avoid summary judgment,
summary judgment is not appropriate where the opposing party offers specific facts that call into
question the credibility of the movant’s witness.” Goodwin v. City of Painesville, 781 F.3d 314
(6th Cir. 2015) (alteration in original) (internal quotations and citations omitted).
Martinez and Lopez offer no specific facts that call the witnesses’ credibility into question.
Plaintiff’s own depositions do not contradict the fact that other crew members routinely and
regularly perform the same allegedly menial tasks Martinez and Lopez were required to do. Being
employed by a party to a suit is not a specific fact that calls into question the credibility of a
witness. See Adcor Indus., Inc. v. Bevcorp, LLC, 252 F. App’x 55, 61 (6th Cir. 2007) (stating that
“bare claims of bias do not undermine undisputed evidence”).
Accordingly, the Court will grant Lakeshore summary judgment for Martinez and Lopez’s
discrimination claims in Counts I and III.
B. Count II: Unequal Pay
Martinez and Lopez’s claim for unequal pay is also premised on national origin
discrimination in violation of Title VII, 42 U.S.C. § 2000(e). They allege that Lakeshore
discriminated against them “by treating them differently from and less preferably than similarly
situated non-hispanic [sic] employees and subjecting them to discriminatory pay, discriminatory

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denials of pay raises, and other differential treatment on the basis of their national origin affecting
their compensation.” (ECF No. 1 at PageID.9.) The same prima facie showing is required for this
alleged violation of Title VII as that discussed above.
Lakeshore cited its employment data and asserts that Martinez and Lopez were the, or
among the, highest-paid crew members employed at the Leonard Street McDonald’s and therefore
have not suffered an adverse employment action. Martinez and Lopez assert that they were not
given routine raises and when they were given raises, they were less than those given to nonHispanic employees.
Martinez and Lopez strongly rely on the pay data provided by Lakeshore and argue that it
shows they did not receive raises in the same time frame or in the same amounts as others employed
by Lakeshore. Lakeshore notes that raises are not guaranteed and are based on merit. Martinez
and Lopez pull names and numbers seemingly at random and out of context in an attempt to
support their claims; however, they fail to show evidence that they were, in fact, paid differently.
For example, just as they cite individuals that on occasion received larger raises than they did, they
fail to address the fact that other employees received smaller raises and there were large gaps
between raises. Martinez and Lopez fail to address the fact that they were among the highest paid
crew employees. In short, Martinez and Lopez provide no analysis to show that their pay was
distinctly different from other employees in the aggregate and, accordingly, adverse or
discriminatory. The burden rests on them to show that Lakeshore took a materially adverse
employment action against them, and Martinez and Lopez have not reached this burden, nor have
they shown that they were treated differently than similarly situated, non-Hispanic employees.
Martinez and Lopez cannot cherry-pick certain employees’ pay data that fit their narrative.

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Accordingly, the Court will grant Lakeshore summary judgment on the unequal pay claim because
Martinez and Lopez have failed to establish a prima facie case of discrimination in pay.
C. Count V: Harassment
Martinez and Lopez’s fifth and final count is a broad allegation of “harassment.”
Lakeshore presumes the allegation to be another Title VII claim, and Martinez and Lopez treat it
as such in their response brief. Specifically, Martinez and Lopez allege “many instances of
harassment, including not being allowed to speak Spanish, and many hostile remarks and hostile
treatment from both management and other employees.” (ECF No. 31 at PageID.319.)
The standard for a hostile work environment must be sufficiently demanding so that “Title
VII does not become a ‘general civility code.’” Faragher v. City of Boca Raton, 524 U.S. 775,
788, 118 S. Ct. 275 (1998); Oncale v. Sundown Offshore Services, Inc., 523 U.S. 75, 118 S. Ct.
998 (1998). A plaintiff must show a hostile working environment “permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370 (1993) (internal quotation marks and citation omitted).
The Court must consider the totality of the circumstances in determining whether a workplace
environment is hostile or abusive, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Id. at 23, 114 S. Ct. at
371. “A mere unfriendly work environment is insufficient to establish liability.” Mast v. IMCO
Recycling of Ohio, Inc., 58 F. App’x 116, 118 (6th Cir. 2003).
Martinez and Lopez “contend that there was a policy and culture of [speaking] English
only” (ECF No. 31 at PageID.320). However Lakeshore’s affidavits refute the existence of such

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a policy, with employees stating, under oath, that they regularly spoke Spanish without any
employment issues. Martinez and Lopez cite instances of purported harassment from their
depositions but do not address the surrounding context that often discounts the purported
harassment. They also allege that managers were rude and impolite, that a manager once called
Martinez “stupid,” and cite one broad comment that a fellow crew member made about Mexicans.
Martinez and Lopez frequently fail to draw a connection between the purported hostile work
environment and their Mexican heritage beyond conclusory statements such as “Charlotte only
acted [rudely] around Plaintiffs.” (Id. at PageID.321.)
Considering the totality of the circumstances, Martinez and Lopez fail to show an
objectively hostile or offensive work environment. Over the course of their roughly eight-year
employment prior to the suit, Martinez and Lopez allege a work environment that is, at times,
“mere[ly] unfriendly,” and cite a handful of unpleasant situations and encounters. Any connection
to their national origin is attenuated, and Martinez and Lopez draw the connection only with
conclusory statements. “In short, [Martinez and Lopez’s] allegations reveal no more than ‘the
ordinary tribulations of the workplace, such as the sporadic use of abusive language,’ that is not
actionable under Title VII.” Hairston, 2015 WL 9304558 at *5 (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2284 (1998)).
Accordingly, the Court will grant Lakeshore’s motion as to Count V.
D. Individual Liability Against Price
Because the Court will grant Lakeshore’s motion as to all claims, there is no liability that
could be extended to Price and the Court need not address the issue of Price’s liability as an
individual, or lack thereof.

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E.

The Plaintiffs Have Stipulated to the Dismissal of Count IV–the Equal Pay Act
Claim
V.

CONCLUSION

Because there is no genuine issue of material fact, the Court will grant Lakeshore’s motion
for summary judgment and for dismissal with prejudice.
A separate Order will issue.

Dated: March 26, 2018

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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