Bogan v. MTD Consumer Group, Inc.
Filing
52
MEMORANDUM OPINION re 51 Order on Motion for Summary Judgment. Signed by District Judge Sharion Aycock on 7/1/2016. (geb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
SHEANETER J. BOGAN
PLAINTIFF
V.
CIVIL ACTION NO. 1:14-CV-225-SA-DAS
MTD CONSUMER GROUP INC
DEFENDANT
MEMORANDUM OPINION
Sheaneter Bogan, a black female, claims her employer MTD Consumer Group terminated
her because of her race and gender in violation of Title VII. MTD filed the pending Motion for
Summary Judgment [41]. The Court has considered the motion, responses, rules, and authorities,
and finds as follows:
Factual and Procedural Background
Bogan worked at MTD’s Verona, Mississippi plant for approximately twenty-one years
in various positions. Around 2009-2010, Bogan completed her Tool and Die degree at Itawamba
Community College’s Tupelo campus, and thereafter sought promotion into MTD’s Tool and
Die department. Bogan received a position in May 2011 on the night shift as a machinist in Tool
and Die and worked there for several months. On her own request, in March 2012, Bogan
transferred to the day shift, where she worked until her termination in April 2013.
Both before and after Bogan completed her Tool and Die degree, she pursued a Social
Work degree at the University of Mississippi. The facility manager Ron Bateman and the Tool
and Die manager Doug Grant initially permitted Bogan flexible work hours to accommodate her
class schedule. In Fall 2012, however, the manager of Human Resources (“HR”) Tab Cherry
learned of this practice and notified Bogan’s supervisors that her schedule violated company
policy. According to Cherry, employees may only receive flexibility with classes that are work-
related, and Bogan’s social work classes did not qualify for such treatment. Grant informed
Bogan in December 2012 that MTD would not accommodate her class schedule beyond the Fall
semester. She would be held to the normal day-shift hours, 5:00 a.m. to 3:30 p.m.
Shortly thereafter, Grant and Bateman noticed from Bogan’s time sheets that she was
working irregular hours at the plant. For example, on one Saturday in January, Bogan logged
fifteen hours, but the next Monday, she worked less than four hours. To resolve these issues,
Grant and Bateman met with Bogan on January 15, 2013 at approximately 4:30 p.m., and
reiterated that Bogan could not attend classes during her working hours and could not deviate
from her normal schedule.
Bogan testified that directly after the meeting, she went back to her area to clean her
machine and stayed at work until 7:00 pm. This action prompted Cherry to issue Bogan a “final
disciplinary notice.” Bogan appealed the final disciplinary notice to a peer review board, which
is comprised of five randomly drawn employees. In February 2013, the board upheld the
disciplinary action.
In Spring 2013, Cherry began receiving reports through other students that Bogan was
attending classes at the University of Mississippi’s Tupelo campus, and he instituted an
investigation. Cherry discovered that on April 23, Bogan left MTD’s facility at 10:49 a.m. and
returned to work at 11:47 a.m. Cherry confronted Bogan about her absence, and Bogan admitted
that she occasionally attended a social work class during the middle of the work day. According
to Cherry’s investigation document, Bogan stated that she drove for ten minutes from MTD’s
Verona facility to the University of Mississippi’s Tupelo campus, attended class for twenty
minutes, and drove ten minutes back to Verona.
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Cherry suspended Bogan pending investigation and terminated her on April 25, 2013.
Bogan appealed the termination decision to the review board, which again upheld Cherry’s
decision by secret ballot. Of the five randomly selected employees on the board, one was a white
male, and four were black females. MTD reassigned Bogan’s duties to a white male.
Bogan filed an EEOC charge, received her right-to-sue letter, and then initiated this suit,
alleging unlawful retaliation and discrimination based on age, gender, and race. She voluntarily
dismissed her retaliation claim and has since conceded her age discrimination claim. The Court
will address her remaining claims of race and gender discrimination.
Summary Judgment Standard
Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil
Procedure when the evidence reveals no genuine dispute regarding any material fact and the
moving party is entitled to judgment as a matter of law. The rule “mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct. 2548.
The nonmoving party must then “go beyond the pleadings” and “set forth ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). In reviewing
the evidence, factual controversies are to be resolved in favor of the nonmovant, “but only when
. . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37
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F.3d 1069, 1075 (5th Cir. 1994) (en banc). Importantly, conclusory allegations, speculation,
unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute
for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276
F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1997); Little, 37 F.3d
at 1075.
Discussion and Analysis
Bogan attempts to establish her Title VII termination claims with circumstantial
evidence, and therefore seeks to navigate the familiar burden-shifting framework first set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Nasti v. CIBA Specialty Chemicals Corp., 492 F.3d 589, 593 (5th Cir. 2007). Bogan must first
establish a prima facie case of discrimination, after which the burden shifts to MTD to produce a
legitimate non-discriminatory reason for terminating her. Wallace v. Methodist Hosp. Sys., 271
F.3d 212, 219-20 (5th Cir. 2001). If MTD comes forth with a sufficient reason, the burden shifts
back to Bogan to show that MTD’s given reason was really a pretext for discrimination. Laxton
v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (citing Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000)). Bogan must ultimately
prove that her race or gender was a “motivating factor” in MTD’s decision to terminate her. 42
U.S.C. § 2000e-2(m); Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2526, 186 L. Ed.
2d 503 (2013).
To meet her prima facie burden, Bogan must demonstrate that “(1) she belongs to a
protected group, (2) she was qualified for her position, (3) she suffered an adverse employment
action[,] and (4) she was replaced with a similarly qualified person who was not a member of her
protected group, or in the case of disparate treatment, that similarly situated employees were
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treated more favorably.” Nasti, 492 F.3d at 593 (citing Okoye v. Univ. of Tex. Houston Health
Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001)). MTD contests only the fourth element for
summary judgment purposes.
Bogan contends inter alia that she was replaced by John Tramel, a white male employee
in Tool and Die who assumed her duties. Citing unreported Fifth Circuit authority, MTD argues
that an employee “has not been ‘replaced’ . . . when h[er] former duties are distributed among
other co-workers.” Griffin v. Kennard Indep. Sch. Dist., 567 F. App’x 293, 295 (5th Cir. 2014)
(internal citation and quotation omitted). However, this principle from Griffin may be confined
to cases involving “layoffs or employer-planned reductions in force” as opposed to the singleemployee termination in this case. Howard v. United Parcel Serv., Inc., 447 F. App’x 626, 629
n.2 (5th Cir. 2011).1 Further, the language in Griffin and in the cases on which it relies
presupposes that the plaintiff’s duties are distributed among multiple coworkers. 567, F. App’x at
295; Rexses, 401 F. App’x 868; Dulin, 1998 WL 127729, at *3; see also Binger v. Anderson
Enterprises, No. 1:13-CV-150-SA, 2015 WL 461753, at *3 (N.D. Miss. Feb. 4, 2015) (no prima
facie case where duties distributed between two existing employees). Here, one individual
wholly subsumed Bogan’s job.
Additionally, Tramel may qualify as Bogan’s replacement if he not only assumed
Bogan’s duties, but was actually transferred to her job. See Carbaugh v. Unisoft Int’l, Inc., No.
H-10-CV-670-SL, 2011 WL 5553724, at *9 (S.D. Tex. Nov. 15, 2011) (phrasing inquiry as
whether “the existing employees did not continue to perform their own jobs” in addition to
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The Howard Court rejected a strain of unreported Fifth Circuit cases involving single-employee terminations, in
which the Court had held that an employee was not “replaced” when his duties were distributed to other employees.
Id.; Rexses v. Goodyear Tire & Rubber Co., 401 F. App’x 866, 868 (5th Cir. 2010) (ellipsis in original); Dulin v.
Dover Elevator Co., 139 F.3d 898, 1998 WL 127729, at *3 (5th Cir. 1998); see also Harkness v. Bauhaus USA, Inc.,
86 F. Supp. 3d 544, 557 (N.D. Miss. 2015) (noting conflict in Fifth Circuit cases). Arguably consistent with Howard
is Griffin, which was decided subsequently and involved a reduction-in-force. Griffin, 567 F. App’x at 295.
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plaintiff’s duties); see also Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 537 (6th Cir.
2014) (“An employer ‘replaces’ a discharged employee when it reassigns an existing employee
to assume the discharged employee’s duties in a way that ‘fundamentally change[s] the nature of
his employment.’”).
The specifics surrounding Tramel’s assignment are not firmly established. Cherry stated
in his declaration that Bogan’s “former job duties were added to those” of John Tramel. In
response to Bogan’s interrogatories, MTD stated that her duties “were assigned to John Tramel .
. . .” Barry Ledbetter, the day shift lead man, acknowledged that Tramel was “put in the position
after [Bogan] was terminated.” In view of these varying accounts, there remains a factual
question as to whether Tramel merely assumed Bogan’s duties or was transferred to take over
her job.
For the foregoing reasons, the Court finds that Bogan has produced evidence that she was
replaced by a white male individual, and has thus satisfied her prima facie burden. Accordingly,
the burden shifts to MTD to produce a legitimate non-discriminatory reason for Bogan’s
termination.
To satisfy its burden, MTD need not “persuade the court that it was actually motivated by
the proffered reasons.” Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S. Ct.
1089, 67 L. Ed. 2d 207 (1981). Its burden is to “clearly set forth, through the introduction of
admissible evidence, the reasons for [its decision].” Id. MTD asserts that Bogan was terminated
for leaving the plant during work hours for an extended period of time without permission after
receiving a final warning about adhering to her work schedule. This justification is grounded in
the record; thus, MTD has discharged its burden.
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The burden shifts back to Bogan to establish pretext by (1) “showing that a
discriminatory motive more likely motivated [MTD’s] decision, such as through evidence of
disparate treatment” or (2) through evidence that MTD’s “explanation is unworthy of credence.”
Wallace, 271 F.3d at 219-20 (internal citation and quotation marks omitted). Bogan has
presented both types of evidence here.
There is some evidence that white and male Tool and Die employees were held to a
different standard than Bogan. Although the Verona plant was comprised of majority female and
majority black employees,2 out of the approximately twenty-four employees in the Tool and Die
department, Bogan was one of five black persons, one of two females, and the only black female.
Other than Bogan, no black female had been employed in Tool and Die from the 1990’s up until
at least November 2015.
Bogan, Ledbetter, and night-shift lead man Bruce Enos testified that the Tool and Die
department employees routinely took extended breaks beyond the prescribed time. Employees at
the Verona plant have a set thirty minutes for lunch. But according to Bogan, the Tool and Die
employees regularly took forty-five minutes to an hour for lunch. Ledbetter stated that
“everybody” in Tool and Die leaves their work stations early to clean up for lunch, and that it is
common for employees to take longer than thirty minutes. Enos was asked which night-shift
Tool and Die employees took breaks of forty-five minutes to an hour, and he responded “I guess
it would be about everybody that has done it.” Bogan was the only Tool and Die employee
punished for exceeding the thirty minutes scheduled for lunch.3
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As of April 2013, fifty-seven percent of MTD Verona’s 669 employees were female, and seventy percent were
black.
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MTD argues that Cherry did not view Bogan’s conduct as a lunch-policy violation, but treated it as a more serious
disciplinary infraction, given that she had been previously warned about adhering to her schedule. This counterexplanation is the type of evidence fit for a jury. See Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 379
(5th Cir. 2010) (noting that court may not weigh the evidence or engage in credibility determinations).
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While there is no direct evidence that HR employees or other management was aware of
the repeated extended breaks, the record shows that MTD generally afforded Tool and Die
employees leeway not granted to its other employees. Ledbetter explained that the “Tool and Die
department was like a fraternity. It had highly skilled personnel . . . . [N]obody really in
management ever questioned us being late or coming back from break, you know, stuff like
that.” Bogan testified that when applying for the job in Tool and Die, the Assistant HR Manager,
Clifton Hobby, told her “I have no control over Tool and Die. That is Ron Bateman’s baby. HR
does not have anything to say.” Nonetheless, Bogan was terminated, not by Bateman, but by
Cherry, the HR manager.
MTD argues that the other Tool and Die employees are not appropriate comparators, as
they are not similarly situated to Bogan. Employees are similarly situated if the employment
actions taken as to each arose “under nearly identical circumstances when the employees being
compared held the same job or responsibilities, shared the same supervisor or had their
employment status determined by the same person, and have essentially comparable violation
histories.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009). “Nearly identical” is
not the same thing as “identical,” however. Id. The employees’ “track record[s] at the company
need not comprise the identical number of identical infractions, albeit these records must be
comparable.” Id. Bogan has offered a pool of individuals who all held responsibilities within the
Tool and Die department and were all supervised by Grant, Bateman and either Ledbetter or
Enos. Viewing the record in the light most favorable to Bogan, all Tool and Die employees
violated the thirty-minute lunch allowance at some time or another. The Court finds the other
Tool and Die employees sufficiently comparable for purposes of the Court’s pretext analysis.
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Finally, the fact that Tool and Die included other black men and another female does not
thwart Bogan’s evidence of differential treatment. Discrimination against a black female is
illegal “even in the absence of discrimination against black men or white women.” Williams v.
City of Tupelo, Miss., 414 F. App’x 689, 695 (5th Cir. 2011) (citing Jefferies v. Harris Cnty.
Cmty. Action Ass’n, 615 F.2d 1025, 1032 (5th Cir. 1980)). Bogan has produced sufficient
evidence that she was treated less favorably than white persons and males.
In addition to facts indicating differential treatment, Bogan cites evidence that may cast
doubt on MTD’s reason for her termination. See Wallace, 271 F.3d at 219-20. As discussed
above, Bogan had been working abnormal hours, and Bateman and Grant communicated in the
January 15 meeting that she must stick to her normal shift time. Bogan understood this
requirement would be imposed beginning the next day, since she had come in late that day and
had yet to clean her machine. Bateman and Grant claim that Bogan was told to go home
following the meeting, though neither identifies who told her. Cherry issued a “final disciplinary
notice” to Bogan for disregarding these alleged instructions. Bogan testified she never received
the instructions.
Bogan further alleges three misrepresentations by Cherry during his investigation into
Bogan’s conduct. According to Cherry’s investigation document, Bogan was enrolled in one
class meeting from 10:30 a.m. to 11:45 a.m.; and until Spring Break, had been enrolled in
another class meeting from 12:00 p.m. to 1:30pm. Cherry documented that Bogan admitted that
she attended these classes “many times.” Bogan testified “that was [Cherry’]s response but I did
not say that. But I attended when I could.” Bogan also explained that she had never attended the
afternoon class, and did not even know the instructor’s name. Second, the document states that
Bogan “was told to go home” after the January 15 meeting, which Bogan denies. Last, the
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document notes that Cherry asked Bogan to sign a waiver so that MTD could view Bogan’s
school attendance records, and that she initially agreed, but later refused to sign. Bogan testified
that Cherry never asked her to sign a waiver. Thus, the document used to justify Bogan’s
termination includes facts which, according to Bogan, paint an unfavorable and less-thanaccurate picture of her conduct.
After reviewing the record as a whole, the Court finds that Bogan produced sufficient
evidence to create a question of fact as to whether MTD’s reasons for terminating her were
pretextual. This evidence, when combined with her prima facie case, “may permit the trier of fact
to conclude that [MTD] unlawfully discriminated.” Reeves, 530 U.S. at 148, 120 S. Ct. 2097.
Accordingly, summary judgment is inappropriate on Bogan’s claims of race and gender
discrimination.
Conclusion
For the foregoing reasons, MTD’s Motion for Summary Judgment [41] is GRANTED IN
PART and DENIED IN PART. Bogan conceded her age discrimination claim, and it is dismissed
with prejudice. All other claims remain. A separate order to this effect shall issue this day.
SO ORDERED, this 1st day of July, 2016.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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