Blaney v. Cengage Learning, Inc.
Filing
31
ORDER granting 17 Motion for Summary Judgment. Case is Dismissed and Terminated on the docket of this Court. Cost to be born by plaintiff. Signed by Judge Herman J. Weber on 4/21/11. (do1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SHERI I. BLANEY,
Plaintiff
v.
Case No. 1:09-cv-934-HJW
CENGAGE LEARNING, INC.,
Defendant
ORDER
This matter is before the Court upon the defendant’s motion for summary
judgment (doc. no. 17). Plaintiff opposes the motion. Defendant has filed proposed
findings of fact and conclusions of law, which plaintiff has highlighted as true, false,
or irrelevant (doc. no. 26). Having considered the entire record, including the
parties’ briefs and related filings (doc. nos. 17, 26-29), the Court will grant the motion
for the following reasons:
I. Factual Allegations and Procedural History
On December 23, 2009, plaintiff filed a four-count complaint alleging
employment discrimination and retaliation under federal and Ohio law (doc. no. 1).
Specifically, she alleges that 1) her employer discriminated against her on account
of her age by “terminating her employment, harassing her, treating her less
favorably than similarly-situated, substantially younger employees, and replacing
her with a less qualified, substantially younger person” in violation of the Age
Discrimination in Employment Act (“ADEA”) and Ohio Rev. Code §§ 4112 ( ¶¶ 32-43);
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and that 2) after she “engaged in protected activity by complaining to defendant
about her concern that she was being discriminated against on the basis of her age,
her employer retaliated against her by terminating her employment,” in violation of
Title VII of the Civil Rights Act of 1964 and Ohio Rev. Code §§ 4112 (¶¶ 44-53).
In her complaint, plaintiff indicates that she began working for Cengage
Learning, Inc. (“Cengage”) in 2001 (¶ 13).
In March of 2007, plaintiff’s manager,
Linda Ellis, took early retirement and left the company (¶ 16). Plaintiff sought
promotion to that position (“Manager of Rights Acquisition for Image and Media”),
but Audrey Pettengill (“Ms. Pettengill”) was hired instead (¶ 19). Since 2001, plaintiff
asserts that she had consistently received “positive performance reviews,
merit-based salary increases, and was never disciplined” (¶ 20).
According to plaintiff’s complaint, Ms. Pettengill denied plaintiff “advancement
opportunities” and “consistently treated plaintiff less favorably than plaintiff’s
younger similarly situated peers” ( ¶¶ 22-23). In August of 2008, Ms. Pettengill rated
plaintiff’s overall performance as “Inconsistent” (¶ 24).
Plaintiff informed Ms.
Pettengill that she disagreed with this and that she felt Ms. Pettengill was “harassing
her, singling her out, and discriminating against her on the basis of her age” (¶ 26).
Plaintiff alleges she also told Benita Spight, the Executive Director of the
department, the same thing regarding Pettengill (¶ 27). Plaintiff indicates she was
later fired on September 29, 2008 (¶ 28). Plaintiff was age 62 and working in the
position of “Senior Image Acquisitions Manager” at the time of her discharge.
After the parties conducted discovery regarding the specific facts underlying
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plaintiff’s claims, defendant moved for summary judgment (doc. no. 17). Defendant
asserts that plaintiff has failed to make a prima facie case at the fourth step, and
moreover, plaintiff was fired for a legitimate reason. Defendant asserts that plaintiff
was terminated because of her inappropriate behavior (i.e. openly hostile and defiant
toward her new supervisor, Ms. Pettengill). Defendant asserts that Ms. Pettengill,
based on instructions from her own supervisor (Ms. Maslin-Cooper), had reasonably
and repeatedly insisted that all acquisition employees, including plaintiff, have
contracts in place before allowing independent contractors to perform work for the
company.1 Defendant points out that while Ms. Pettengill was again discussing
matters with plaintiff, plaintiff angrily turned her back on her supervisor, walked out
of the meeting, and slammed the door. Defendant asserts that plaintiff’s termination
for inappropriate behavior toward her supervisor had nothing to do with age
discrimination or retaliation.
II. Issues Presented
In determining whether the defendant is entitled to summary judgment, the
main issues before this Court are: 1) whether this case is based on direct or indirect
(i.e. circumstantial) evidence of age discrimination; 2) if the case is based on
circumstantial evidence, whether plaintiff has established a prima facie case of age
discrimination through the fourth step; 3) if so, whether the plaintiff has shown that
1
Defendant indicates that Blaney reports to Pettengill (born 1967), who
reports to Mari Maslin-Cooper (born 1954), who reports to Benita Spight,
Executive Director (doc. no. 27 at 1).
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her employer’s stated non-discriminatory reason for her termination was a pretext
for age discrimination; and 4) whether plaintiff has made a prima facie showing of
retaliation.
III. Analysis
A. Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure, as recently amended on
December 1, 2010, provides in relevant part that:
A party may move for summary judgment, identifying each
claim or defense--or the part of each claim or defense--on
which summary judgment is sought. The court shall 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).
Rule 56(c)(1) further provides that:
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact. Fed.R.Civ.P. 56(c)(1).
Finally, Rule 56(e) provides in relevant part that “[i]f a party fails to properly
support an assertion of fact or fails to properly address another party's assertion of
fact as required by Rule 56(c), the court may . . . consider the fact undisputed for
purposes of the motion. . . [and] grant summary judgment if the motion and
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supporting materials--including the facts considered undisputed--show that the
movant is entitled to it.” Fed.R.Civ.P. 56(e).
The Committee Notes explain that the “standard for granting summary
judgment remain unchanged” and that the recent amendment of the rule “will not
affect continuing development of the decisional law construing and applying” the
standard. Fed.R.Civ.P. 56, Committee Notes at 31. Under Rule 56, the moving party
bears the burden of proving that no genuine issue of material fact exists. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (l986). The district court
must construe the evidence and draw all reasonable inferences in favor of the
nonmoving party. Id. at 587.
B. Relevant Law
The ADEA forbids an employer from discharging an employee “because of
such individual's age.” 29 U.S.C. § 623(a)(1). Similarly, Ohio state law makes it
unlawful “[f]or any employer, because of the . . . age of any person . . . to discharge
. . . or otherwise to discriminate against that person with respect to hire, tenure,
terms, conditions, or privileges of employment, or any matter directly or indirectly
related to employment.” Ohio Rev.C. § 4112.02. Given the similarity to federal law,
courts apply Title VII precedent to interpret § 4112.02. Hampel v. Food Ingredients
Specialties, Inc., 729 N.E.2d 726, 731 (Ohio 2000); Hawkins v. Anheuser-Busch, Inc.,
517 F.3d 321, 333 (6th Cir. 2008). This Court’s analysis under Title VII therefore
applies to plaintiffs' claims under Ohio Rev.C. § 4112. See Minadeo v. ICI Paints, 398
F.3d 751, 763 (6th Cir. 2005) (“Age discrimination claims brought under Ohio law are
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analyzed under the same standards as federal claims brought under the . . . ADEA”).
Absent direct evidence, the plaintiff must make her case with indirect (i.e.
circumstantial) evidence under the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973); see also, Spengler v. Worthington
Cyclinders, 615 F.3d 481, 491 (6th Cir. 2010) (applying the burden-shifting framework
to claims of age discrimination and retaliation); Godfredson v. Hess & Clark, Inc., 173
F.3d 365, 371 (6th Cir. 1999) (age); Barnett v. Dep't of Veterans Affairs, 153 F.3d 338,
343 (6th Cir. 1998) (retaliation).
Although the United States Supreme Court has not specifically held that the
McDonnell Douglas framework applies to ADEA cases, see Gross v. FBL Fin. Servs.
Inc., 129 S.Ct. 2343, 2349 (2009), the Court of Appeals for the Sixth Circuit has held
that ADEA claims based on circumstantial evidence are analyzed under the
McDonnell Douglas test. See Spengler, 615 F.3d at 491-492 (“When a plaintiff
presents only circumstantial evidence of retaliation, we examine ADEA retaliation
claims under the same McDonnell Douglas/ Burdine framework used to assess
discrimination claims.”).2
To put forth a prima facie case of discrimination based on circumstantial
evidence, plaintiff must show that (1) she was a member of a protected class; (2) she
suffered an adverse employment action; (3) she was qualified for the position; and
(4) she was replaced by someone outside the protected class or was treated
differently than similarly-situated, non-protected employees. Geiger v. Tower
2
See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
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Automotive, 579 F.3d 614, 622 (6th Cir. 2009); DiCarlo v. Potter, 358 F.3d 408, 414
(6th Cir. 2004). A court may not consider the employer's alleged nondiscriminatory
reason for firing the employee when it analyzes the plaintiff's prima facie case.
Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 574 (6th Cir. 2003) (en banc).
If a plaintiff makes a prima facie case, the burden shifts to the employer to
“articulate a nondiscriminatory reason for its action.” Harris v. Metro. Gov. of
Nashville & Davidson Cnty., Tenn., 594 F.3d 476, 485 (6th Cir. 2010). An employer
who provides a legitimate, non-discriminatory reason for its decision will be entitled
to summary judgment unless plaintiff rebuts the employer's explanation by showing
that it was a pretext for discrimination. Id.; Schoonmaker v. Spartan Graphics
Leasing, LLC, 595 F.3d 261, 264 (6th Cir. 2010).
A plaintiff can rebut the stated explanation by showing: (1) that the articulated
reason had no basis in fact, (2) that the stated reason did not actually motivate the
termination, or (3) that the reason was insufficient to motivate the employer's action.
Chen v. Dow Chemical Co., 580 F.3d 394, 400 (6th Cir. 2009). If plaintiff fails to carry
this burden, summary judgment is appropriate. The ultimate question in every
employment discrimination case is whether the plaintiff was the victim of intentional
discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000).
Although the burden of production shifts, the plaintiff retains the ultimate burden of
persuasion at all times to demonstrate “that age was the ‘but-for’ cause of their
employer's adverse action.” Schoonmaker, 595 F.3d at 264 (quoting Gross, 129 S.Ct.
at 2351 fn. 4).
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B. Plaintiff’s Age Discrimination Claim
1. Alleged Direct Evidence
Plaintiff initially contends that she has offered direct evidence of age
discrimination. The Court finds no merit in this contention.
Direct evidence is “evidence that proves the existence of a fact without
requiring any inferences.” Blair v. Henry Filters, Inc., 505 F.3d 517, 523 (6th Cir.
2007). For example, an actual statement by an employer “proclaiming his or
her…animus” constitutes direct evidence of age discrimination. Smith v. Chrysler
Corp., 155 F.3d 799, 805 (6th Cir. 1998) (quoting Robinson v. Runyon, 149 F.3d 507,
512-14 (6th Cir. 1998)). However, an “isolated, ambiguous, or abstract” comment will
not suffice. See, e.g., Coburn v. Rockwell Automation, Inc., 238 Fed.Appx. 112, 117118 (6th Cir. 2007).
Courts evaluate alleged statements of age bias by considering: “(1) whether
the statements were made by a decision-maker or by an agent within the scope of
his employment; (2) whether the statements were related to the decision making
process; (3) whether the statements were more than merely vague, ambiguous or
isolated remarks; and (4) whether they were made proximate in time to the act of
termination.” Morgan v. New York Life Ins. Co., 559 F.3d 425, (6th Cir. 2009) (quoting
Peters v. Lincoln Elec. Co., 285 F.3d 456, 478 (6th Cir. 2002)).
Plaintiff alleges that her supervisor (Ms. Pettengill) made a lone comment to
plaintiff to the effect that she set a higher standard for plaintiff and expected more
of her “as a senior person, compared to the younger employees” (doc. no. 1 at ¶ 20).
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Neither plaintiff’s complaint nor her deposition testimony indicate when this
comment was allegedly made. Although plaintiff characterizes this as a comment
about her age, defendant aptly points out that plaintiff was in fact a Senior Rights
Acquisition Account Manager, and not surprisingly, was properly expected to
perform at a higher standard than lower-level employees. Plaintiff’s own deposition
testimony reflects that she referred to herself and others with such job titles
(including one person in her 30's) as being “seniors,” meaning managers at a higher
level with more experience (Blaney Dep. 24-25, 43, 48). “[I]solated and ambiguous
comments are too abstract, in addition to being irrelevant and prejudicial, to support
a finding of age discrimination.” Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th
Cir. 1993). The alleged comment would require an inference in order to have the
meaning suggested by plaintiff, and thus, is not “direct” evidence of discriminatory
motive.
Despite taking extensive notes of her workdays and interactions with coworkers and supervisors, none of plaintiff’s notes reflect any other age-related
comments by her employer. Plaintiff acknowledged at deposition that nobody had
told her that she was being disciplined or terminated because of her age. Plaintiff’s
testimony establishes that the single alleged statement by Ms. Pettengill (as
paraphrased by plaintiff) was not made as part of the decision-making process that
culminated in plaintiff’s termination (Blaney Dep. 33-34). The lone comment by Ms.
Pettengill is insufficient to raise any reasonable inference of age-related animus and
does not constitute direct evidence of age discrimination.
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2. Claim of Age Discrimination Based on Circumstantial Evidence
Turning to the burden-shifting framework, the parties do not dispute that the
first three prongs are met: 1) plaintiff was over forty and a member of a protected
class;3 2) her employment was terminated which is an adverse employment action;
and 3) she was qualified for her position. At the fourth prong, defendant asserts that
plaintiff’s prima facie case fails because plaintiff has not shown that she was
replaced by someone outside the protected class or treated differently than
similarly-situated employees outside the protected class. See Mitchell v. Vanderbilt
Univ., 389 F.3d 177, 181 (6th Cir. 2004). “[T]he plaintiff and the employee with whom
the plaintiff seeks to compare . . . . herself must be similar in all of the relevant
aspects.” Ercegovich v. Goodyear Tire and Rubber Co., 154 F.3d 344, 352 (6th
Cir.1998); and see, Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000) (explaining
that courts should look at “relevant similarity”).
Plaintiff does not dispute that she was fired, that she was not replaced, and
that her duties were divided up among existing employees (ages 41, 31, 37, 51, 58,
38, 47 and 51) (doc. nos. 17 at 2; 26 at ¶ 31). “Spreading the former duties of a
terminated employee among the remaining employees does not constitute
replacement.” Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992).
To the extent she alleges disparate treatment, plaintiff has not shown any
evidence of similarly-situated employees outside the protected class, much less
shown that she was treated differently from them. Plaintiff does not point to any
3
Plaintiff was born in 1947 (doc. no. 27 at 1).
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co-workers who were “similarly situated” in the way that is fundamental here, i.e.,
no employee violated company instructions to obtain contracts before authorizing
work and then became angry and defiant toward a supervisor who sought to ensure
compliance with the company’s directive. For example, in her written “Performance
Summary and Discussion,” plaintiff was informed she had not followed “GRPA best
practices workflow” and as a result, “a number of projects have been published
without the proper permissions being obtained . . . exposing Cengage to possible
legal action.” Three such projects were specifically identified. The document further
indicates that Blaney had 1) acknowledged hiring at least one independent
contractor (“IC”) and improperly allowed the IC to work on projects without a
contract in place, and 2) authorized payment for incomplete work. Plaintiff has not
identified any employees with the same performance issues who were treated more
favorably.
Plaintiff makes conclusory statements that she was treated less favorably than
similarly-situated younger employees and replaced with a less qualified,
substantially younger person. However, her brief contains no specific facts or an
analysis that would support these conclusions. Plaintiff merely points to her own
conclusory allegation that her supervisor “treated [her] differently in many way by
criticizing [her] work when other people had made the same errors . . or had done
similar things” (doc. no. 27, citing Blaney Dep. 49). However, when asked at
deposition who else had failed to have independent contractors sign contracts or go
through training, plaintiff immediately retracted her assertion.
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A.
Did I say I knew someone?
Q.
You said “younger employees did the same thing as I did and
nothing was done to them.”
A.
That’s a misunderstanding.
Blaney Dep. 50.
Defendant points out that Ms. Pettengill had insisted, pursuant to the
employer’s directive (and the instructions of Pettengill’s own supervisor), that all
employees responsible for acquisition of rights, including plaintiff, obtain contracts
from independent contractors before those individuals performed work on any
projects for the company (see Blaney Dep. 50, reading from supervisor’s email to
plaintiff: “You are not being singled-out Sheri. I am asking all of the Mason group for
this information.”). At her deposition, plaintiff acknowledged the contents of this
email. When asked “do you have any evidence to support that she [Ms. Pettengill]
wasn’t asking the other people in your group for this” – plaintiff responded “No” and
then merely complained that Ms. Pettengill had asked her “at least twice” for certain
information (Blaney Dep. 50). This falls quite short of demonstrating any “disparate
treatment.”
Plaintiff apparently perceived her supervisor’s various requests to comply
with the company’s contract requirement as “criticism” of her work and did not react
well, i.e. ignored the instructions, indicated they were “ridiculous,” argued that some
of her accounts (i.e. such as the Belmont location) did not have to comply,
improperly issued payment for incomplete work on the notion that the independent
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contractors were “good for it,” and became openly angry with her supervisor when
asked about it. Plaintiff points to no other employees who repeatedly failed to obtain
contracts as instructed and who insisted it was not necessary in their opinion to
obtain those contracts. Plaintiff acknowledges she is “unaware” of any other
employees who reacted inappropriately to a supervisor’s instructions (see Blaney
Dep. 75, indicating she knew of noone else who had turned her back on her
supervisor, walked out of a meeting while the supervisor was discussing company
requirements, and slammed the door).
In sum, plaintiff has not shown any disparate treatment and has not set forth
a prima facie case at the fourth prong.
See, e.g., Sperber v. Nicholson, 342
Fed.Appx. 131 (6th Cir. 2009) (observing that employee failed to establish prima facie
case of age discrimination, absent evidence that similarly situated non-protected
individuals were treated differently).
Even assuming arguendo that plaintiff had made a prima facie case of age
discrimination, the defendant has advanced a legitimate non-discriminatory reason
for plaintiff’s termination, namely, plaintiff’s inappropriate behavior toward her
supervisor. See Gant v. Genco, Inc., 274 Fed. Appx. 429 (6th Cir. 2008) (observing
that an employer’s decision to terminate an employee for belligerent behavior and
disrespect towards management and company policies was a legitimate,
nondiscriminatory reason). For example, at a meeting with plaintiff, her employer
had addressed specific short-comings in her work that plaintiff needed to improve
(see doc. no. 17, Exhibit SB000182-183, listing objective criteria). Rather than
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remedying these problems, plaintiff reacted badly toward her supervisor. Although
plaintiff spends much time arguing that her prior work performance was good and
attempting to justify her reasons for her defiance toward her new supervisor, plaintiff
essentially admits the inappropriate behavior.4
Defendant emphasizes that plaintiff was fired for inappropriate behavior
toward her supervisor. Plaintiff has not shown that this articulated reason has no
basis in fact. Plaintiff also has not shown that the stated reason did not actually
motivate her termination or that the reason was insufficient to motivate the
employer's action. Chen, 580 F.3d at 400.
“At the summary judgment stage, the issue is whether the plaintiff has
produced evidence from which a jury could reasonably doubt the employer's
explanation.” Chen, 580 F.3d at 400 n. 4. The plaintiff “need only produce enough
evidence ... to rebut, but not to disprove, the defendant's proffered rationale.”
Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 719 (6th Cir. 2006). Here,
plaintiff has not presented evidence from which a jury could reasonably infer that
her discharge was a pretext for discrimination. Schoonmaker, 595 F.3d at 264 -265;
Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 558 (6th Cir. 2009). Although the
summary judgment standard requires that evidence of record be viewed in the light
most favorable to the nonmoving party, it does not require that all bald assertions
and subjective unsupported opinions asserted by the nonmoving party be adopted
4
Plaintiff tries to downplay her slamming of the door by indicating that the
glass door made a slamming noise, but that she didn’t mean to slam it.
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by a court.
To the extent plaintiff alleges that she felt “harassed” by her supervisor’s
requests for contracts, plaintiff’s deposition testimony makes it abundantly obvious
that plaintiff merely mischaracterizes any criticism or oversight by her manager as
“harassment” (see, e.g., Blaney Dep. 78). Plaintiff does not assert harassment as an
actual separate claim, and as defendant correctly asserts, such a claim would not
withstand summary judgment in light of the evidence of record. Plaintiff indicated
that when Ms. Pettengill asked her whether work was completed in order to justify
payment of a researcher's invoice, it constituted “harassment.” (Blaney Dep. 68-69,
72-73, Q: So she was verbally harassing you by asking for whether work was
completed or not? A. Right.).
Plaintiff also testified that she considered the April 25, 2008 performance
counseling memorandum that Ms. Pettengill discussed with her to be harassment
because Ms. Pettengill was questioning whether Blaney was working outside of
company procedures (Blaney Dep. 78-79 & Exh. 14). She further alleged that her
annual performance review was a form of harassment to the extent that it contained
anything but positive comments on her work (Blaney Dep. 83 & Exh. 15).
Significantly, there are no references whatsoever to “age” in any of this purportedly
"harassing" conduct. Plaintiff’s displeasure at being criticized provides no basis for
any claims of harassment. Her subjective belief that this amounts to harassment
due to age discrimination is unavailing.
C. Plaintiff’s Claims of Retaliation
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Plaintiff’s federal and state claims of retaliation fare no better. To establish a
prima facie case of retaliation, plaintiff has the initial burden to show that: (1) she
engaged in protected activity; (2) defendant knew about her exercise of protected
activity; (3) defendant then took adverse employment action against her; and (4)
there was a causal connection between the protected activity and the adverse
employment action. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000);
Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007); Spengler, 615 F.3d at 49192. If plaintiff presents a prima facie case, the burden of production shifts to
defendant to "articulate some legitimate, nondiscriminatory reason for [its action]."
McDonnell Douglas, 411 U.S. at 802. If defendant does so, the burden shifts back to
plaintiff to show that defendant's “proffered reason was not the true reason for the
employment decision.” Spengler, 615 F.3d at 496.
At the first step, plaintiff alleges protected activity based on the following: The
day after the incident on April 8, 2008 where plaintiff turned her back on Ms.
Pettengill, angrily walked out, and slammed the door, plaintiff received a written
warning about her conduct. The same day, plaintiff sent emails to Ms. Pettengill, to
Ms. Pettengill’s supervisors, and to the Human Resources director. In the email,
plaintiff complains that: "I feel like I am being singled out by you and being
discriminated against - why I do not know." (Blaney Dep. 60-61 & Exh. 9; Bonomini
Dep. at 30). Thus, her alleged “protected activity” consists only of vague internal
correspondence that followed her own admitted misconduct.
Although plaintiff contends that her emails constitute protected activity, the
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HR Director indicated at deposition that “in all my interactions with [plaintiff], she
was complaining about her manager following up with her on work concerns. She
never said she felt like she was being discriminated against on the basis of some
protected status. It was more that her manager was talking to her about concerns
she had with [plaintiff’s] work” (Bonomini Dep. at 30).
Although plaintiff claims the generalized reference to unfair treatment in her
April 9, 2008 emails amounts to “protected activity,” the Court of Appeals for the
Sixth Circuit has explained that "[a]n employee may not invoke the protects of the
Act by making a vague charge of discrimination.” Booker v. Brown & Williamson
Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989). Defendant correctly points out that
plaintiff does not even refer to “age” in the emails, much less indicate any
opposition to violation of a specific law or statute. Id. at 312. Plaintiff is clutching
at straws. See Fox, 510 F.3d at 592 (holding the plaintiff's statements did not amount
to protected activity because there was no evidence that plaintiff informed his
employer that he was being discriminated against because of his age).
Additionally, plaintiff has failed to show any causal link between the alleged
protected activity and her termination six months later. "[A] plaintiff must proffer
evidence sufficient to raise the inference that [the] protected activity was the likely
reason for the adverse action." Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007).
Proof of temporal proximity between the protected activity and the adverse
employment action, "coupled with other indicia of retaliatory conduct," may support
a causal connection. Id at 333; and see, Wade v. Knoxville Utils. Bd., 259 F.3d 452,
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463 (6th Cir. 2001) (observing that the evidence must be sufficient to raise an
inference that the protected activity was the likely reason for the adverse action).
Plaintiff was not terminated until September of 2008, and cannot rely on timing
alone for causation. Plaintiff has not shown other evidence sufficient to create an
inference of causation. Although plaintiff complains that she was given a warning
about her conduct of April 8, 2008, plaintiff admits engaging in the conduct that
generated the warning.
Regarding timing, defendant points out that Ms. Pettengill had previously
expressed concern about plaintiff’s attitude and insubordinate conduct on February
14, 2008 in an email to HR. Director Bonomini, well before plaintiff’s after-the-fact
emails on April 9, 2008 (doc. no. 17, citing Pettengill Affidavit, Exhibit 1). Absent a
sufficient showing of causation between her alleged “protected activity” and her
eventual termination, plaintiff has not established a prima facie case of retaliation.
Finally, defendant argues that even if plaintiff had made a prima facie showing
of retaliation, it has articulated a legitimate, nondiscriminatory reason for terminating
plaintiff’s employment, i.e. her inappropriate behavior. See Dixon, 481 F.3d at 333.
Plaintiff inaccurately characterizes the reasons for her dismissal as “inconsistent”
(doc. no. 27 at 19). On the contrary, the references to “a pattern of unprofessional
behavior with her manager” (Bonomini Dep. at 27) and “insubordination”
(Masalin-Cooper Dep. at 82) are consistent. Plaintiff has not pointed to any evidence
that would tend to rebut the stated reason for her termination.
IV. Oral Argument Not Warranted
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Local Rule 7.1(b)(2) provides that courts have discretion whether to grant
requests for oral argument. The Court finds that the pleadings and exhibits are clear
on their face and that oral argument is not warranted here.
V. Conclusion
Viewing the evidence in the light most favorable to plaintiff, plaintiff has failed
to present a prima facie case of age discrimination at the fourth step. Moreover, the
defendant has articulated a legitimate, nondiscriminatory reason for the termination
of the plaintiff’s employment, which plaintiff has failed to rebut.
Additionally,
plaintiff has failed to set forth sufficient evidence creating a genuine dispute of
material fact as to whether the defendant discharged her in retaliation for
complaining of age discrimination. Defendant is entitled to summary judgment on
plaintiff's claims.
In accordance with the foregoing, the defendant’s “Motion for Summary
Judgment” (doc. no. 17) is GRANTED; this case is DISMISSED with prejudice; costs
shall be born by plaintiff.
This case is TERMINATED on the docket of this Court.
IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court
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