Famularcano v. SanMar Corporation et al

Filing 41

ORDER denying plaintiff 39 MOTION for Extension of Time to File Response to defendants' 35 MOTION for Summary Judgment. REPORT AND RECOMMENDATION that defendants' 35 MOTION for Summary Judgment be Granted and this case be Ter minated on the Court's docket. The Court decline to exercise supplemental jurisdiction over plaintiff's state law claim of intentional infliction of emotional distress and dismiss this claim without prejudice. ( Objections to R&R due by 10/5/2012). Signed by Magistrate Judge Karen L. Litkovitz on 9/18/2012. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ELENA FAMULARCANO,
Plaintiff
vs
SANMAR CORP., et al.,
Defendants

Case No. 1:1 0-cv-511
Spiegel, J.
Litkovitz, M.J.

ORDER AND REPORT AND
RECOMMENDATION

Plaintiff Elena Famularcano brings this action pro se 1 against defendants SanMar
Corporation and Danny Bailey alleging discrimination in employment. Plaintiff alleges that
defendants discriminated against her on the basis of her race and national origin, created a hostile
working environment, and retaliated against her in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII), and Ohio Rev. Code§ 4112.01 et seq.
(Doc. 1). Plaintiff also brings a state law claim for intentional infliction of emotional distress
under the Court's supplemental jurisdiction, 28 U.S.C. § 1367. This matter is before the Court
on defendants' motion for summary judgment, affidavits in support thereof, and "reply"
memorandum (Docs. 35-38), to which plaintiff has not responded; and plaintiffs motion for
extension of time (Doc. 39) and defendants' memorandum in opposition. (Doc. 40).

I. PLAINTIFF'S MOTION FOR EXTENSION OF TIME IS DENIED.
On June 12, 2012, defendants filed their motion for summary judgment. (Doc. 35).
Under the local rules of this Court, plaintiffs response to defendants' motion was due on July 6,
2012. S.D. Ohio Civ. R. 7.2(a)(2). Plaintiff failed to respond to the motion for summary
judgment within the time provided, and on July 16, 2012, defendants filed a "reply"

1

Famularcano's former lawyer terminated his representation of plaintiff on September 21,2011. (Doc. 21).

memorandum reiterating their request for summary judgment in their favor and dismissal of this
action with prejudice. (Doc. 3 8). On August 14, 2012, two months after defendants filed their
motion for summary judgment, plaintiff filed a motion for extension of time, the body of which
states in full, "To whom it may concern, I am asking for permission to file a Motion in Court
additional time to file a Respond (sic)." (Doc. 39).
The Federal Rules of Civil Procedure permit extensions oftime for responding to motions
for good cause shown. See Fed. R. Civ. P. 6(b). Where a request for an extension is made "after
the time has expired" for responding to the motion, the party requesting the extension must show
the failure to act was "because of excusable neglect." Fed. R. Civ. P. 6(b)(1)(B). To demonstrate
excusable neglect, a litigant must show: (1) the failure to meet the deadline was a case of
neglect; and (2) the failure to act was excusable. Turner v. City ofTaylor, 412 F.3d 629, 650 (6th
Cir. 2005). "Neglect exists where the failure to do something occurred because of a simple,
faultless omission to act, or because of a party's carelessness." !d. (citing Pioneer lnv. Servs. Co.

v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 388 (1993)). In determining whether
neglect is "excusable," the Court should consider "the danger of prejudice to the [non-moving
party], the length of the delay and its impact on judicial proceedings, the reason for the delay,
including whether it was within the reasonable control of the movant, and whether the movant
acted in good faith." !d.
This case has been pending for over two years and defendants have complied with the
applicable deadlines set by the Court in its scheduling order. A final pretrial conference is
tentatively scheduled for October 2012 and a jury trial is tentatively set for November 2012.
(Doc. 29). Granting plaintiff an extension of time to respond to the motion for summary

2

judgment would necessarily delay the proceedings in this case and a resolution on the merits.
More importantly, plaintiff offers no justification whatsoever for the requested extension, nor any
explanation for her failure to file a response to the motion for summary judgment. Not only has
plaintiff failed to show "cause" for her extension request, let alone "good" cause, plaintiff has not
alleged any facts showing her failure to timely respond to defendants' motion for summary
judgment amounts to excusable neglect. Excusable neglect is a "strict standard which is met only
in extraordinary cases." Nicholson v. City ofWarren, 467 F.3d 525, 527 (6th Cir. 2006) (citing

Marsh v. Richardson, 873 F.2d 129, 130 (6th Cir. 1989)). Generally, inadvertence, ignorance of
the rules, or mistakes interpreting the rules, even by those proceeding without counsel, do not
constitute excusable neglect. !d. (citing Pioneer Inv., 507 U.S. at 392; McNeil v. United States,
508 U.S. 106, 113 (1993)). Because plaintiff presents no justification or explanation for her lack
of a timely response to defendants' motion and her belated request for an extension oftime,
plaintiff has not established good cause or excusable neglect for the granting of an extension of
time to respond to the motion for summary judgment.
The Court recognizes that plaintiff is proceeding in this matter pro se. Nevertheless, pro
se litigants are held to the same standards as other litigants when it comes to easily understood
deadlines, rules, and procedures. See Pilgrim v. Littlefield, 92 F .3d 413, 416 (6th Cir. 1996);

Jourdan v. .!abe, 951 F .2d 108, 110 (6th Cir. 1991 ). 2 The fact that plaintiff is representing herself
in this matter, in itself, does not justifY an extension of time absent good cause shown for her

2

The Court also notes that plaintiff was referred to the Court's website for a copy of"Pro-se Litigants
Handbook- representing yourself in US District Court" on December 12, 2011 for assistance in proceeding in this
case. Notably, the handbook advises litigants: "This manual does not relieve you of your responsibility to
comply with the Federal Rules of Civil Procedure, the Local Rules, and all other applicable rules. It is your
responsibility to find and to know these rules if you choose to represent yourself in federal court." (Pro Se
Handbook at 4 ).

3

noncompliance with the rules. For these reasons, the Court denies plaintiff's motion for
extension of time.
II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED.
A. Undisputed Facts
Defendants present the following evidence in support of their motion for summary
judgment which, as noted above, has not been opposed by plaintiff: 3
SanMar is a wholesale distributor of imprintable apparel and accessories. (Doc. 36,
Declaration of Marty Raskin). SanMar supplies businesses with quality clothing and various
other products upon which logos, brand names, and graphics can be printed. !d. The accuracy of
order fulfillment and timely processing of orders are extremely important parts of SanMar's
business. !d. When SanMar ships an order that does not reflect what a customer actually
purchased, or orders are delayed, SanMar jeopardizes its hard-won goodwill and risks losing
customers. !d.
Famularcano's primary job at SanMar was to efficiently and accurately fill customer
orders. She first became employed with SanMar on August 25, 2004, as an order "picker" at
SanMar's West Chester, Ohio distribution facility in the Cincinnati area. (Doc. 37, Declaration
of Thomas P. Holt; Ex. A (transcript of deposition of plaintiff, hereafter "Famularcano Dep.") at
26:15-23; see also Ex. B to Holt Decl. (Famularcano "Employee Information Sheet")). An order
"picker" is a distribution center employee who reads customer orders, goes into the distribution
center's warehouse facility, and retrieves products to be packed for shipment. (Doc. 36, Rask

3

In failing to file a memorandum in opposition to defendants' motion for summary judgment, plaintiff has
failed to offer any facts or evidence to support her claims. As such, the facts as presented by defendants are
undisputed.

4

Decl.).
In September 2004, Famularcano transferred to "Special Services." (Famularcano
Dep. at 28:23-29:13). Special Services employees handle a variety oftasks related to shipping
orders, but approximately 20 percent of their work also consists of "picking" orders.
(Famularcano Dep. at 42:17--43:5; Doc. 36, Rask Decl.). On August 24,2008, Famularcano
moved back to "picking" exclusively. (Famularcano Dep. at 55:13-56:5; see also Doc. 37, Ex. C
to Holt Decl.). At all times during Famularcano's employment with SanMar, efficiency and
accuracy in picking and processing customer orders were core qualifications and job functions for
each of her positions. (Doc. 36, Rask Decl.).
On September 10, 2004, Famularcano was provided with a warning stating "Maelena4
was talked to today concerning her LPH. 5 She was told she has 1 more week to try to get her
LPH above the minimum LPH of 3 5. If she is unable to do this, then she will be dismissed from
Sanmar." (Doc. 37, Ex. D to Holt Decl.). In her performance evaluation for her first year at
SanMar, Famularcano was counseled that her efficiency and accuracy were unsatisfactory. With
respect to her "Quantity of Work," she was informed, "You are not doing well. Your
performance does not meet your job requirements by not maintaining 35 LPH." (Doc. 37, Ex. E
to Holt Decl.) (8/25/05 performance evaluation at 1). With respect to her "Quality of Work,"
defined as the "Accuracy in which the employee completes his/her work," Famularcano was
counseled, "Your accuracy does not meet the requirements because you are below 99%." Id.
Famularcano was ranked "Below" expectations in both "Accuracy" and "Productivity." Id. at 2.
4
Famularcano goes by several nicknames, including Maelena and Lala. See Famularcano Dep. at 56:2057:5 (Lala), 138:5-10 (Maelena).
5

LPH stands for "lines per hour," a measure of how efficiently employees are processing customer orders.
See Famularcano Dep. at I 05:22-106: 14.

5

On June 28, 2007, after the requirements for picker productivity increased to 40 LPH,
Famularcano was provided with a written warning stating that she was "not meeting the
minimum standards in picking." (Doc. 37, Ex. F to Holt Decl.). The warning stated, "The
standards must be met with 40 LPH or above and 99% or above accuracy. Currently they are
below the standards of 5/8 weeks. Failure to comply will mandate another write-up, up to 3 total.
The employee will lose money or can possibly face termination if the minimums are not adhered
to." !d. Two weeks later, on July 12, 2007, Famularcano again fell below the minimum
performance standards and was again provided with a written warning informing her that she
could face discharge. (Doc. 37, Ex. G to Holt Decl.). On August 10, 2007, Famularcano
received a "final" warning regarding her inability to meet efficiency and accuracy standards.
(Doc. 37, Ex. H to Holt Decl.). This warning stated, "This is the 3rd and final write-up
concerning this. Failure to comply will mandate termination." !d.
Following this warning, Famularcano made her one and only complaint of any kind while
employed at SanMar. (Famularcano Dep. at 37:6-13 ("Only just one" complaint); id. at 65:2366:8 ("I don't have any complaints, that's why I did not ask them."); id. at 113:4-18 (detailing
lack of of complaints)). The incident about which Famularcano complained, together with her
cousin Lourdes Oro and her sister Lilia Hembree, involved what Famularcano described as
"bullying" by another employee. (Doc. 37, Ex. I to Holt Decl.) (memorandum dated
5/12/08); (Famularcano Dep. at 29:14-31:23 (recitation of complaint meeting and "bullying")).
Famularcano admits that this incident had nothing to do with her race or national origin
(Famularcano Dep. at 115:14-20) and that she was never disciplined for complaining about the
other employee. (Famularcano Dep. at 37:25-38:2, 82:11-83:20).

6

On August 25, 2008, Famularcano was again specifically counseled during an annual
performance evaluation that she was failing to meet minimum standards for accuracy, again
receiving a "Below" expectations rating. (Doc. 37, Ex. J to Holt Decl.). She was also expressly
counseled, "Your picking accuracy can use improvement. Please be more careful when picking."

!d. Two days later, on August 27, 2008, Famularcano again failed to meet minimum accuracy
standards and received another warning for failing to do so. (Doc. 37, Ex. K to Holt Decl.). As
with her prior warnings, this warning specified, "Failure to comply will mandate another writeup, up to three total," and "The employee will lose money or can possibly face termination if the
minimums are not adhered to." !d.
On February 19, 2009, Famularcano was again warned that she was failing to meet
minimum accuracy standards. (Doc. 37, Ex. L to Holt Decl.). The warning stated, "This is the
2nd write up concerning this. Failure to comply will mandate another write-up, up to 3 total,"
and again stated "[t]he employee ... can face termination if the minimums are not adhered to."

!d.
In August 2009, as part of its continuing process of improving its operations and
maximizing customer service, SanMar implemented a revised protocol to improve the efficiency
of its employees in filling customer orders for shipment, as well as the accuracy with which
customer orders are packed. (Doc. 36, Rask Decl.). When it adopted this new protocol,
SanMar's ability to improve efficiency and accuracy increased substantially. !d. An important
part of this involved SanMar entering incorrectly pulled orders into a database when checkers
detected them. !d. Not only did this allow SanMar to monitor more completely the accuracy of
its orders, it also allowed SanMar to provide additional training to pickers who were having

7

difficulty retrieving customer orders correctly. !d.
In SanMar's Cincinnati-area distribution center, pickers are required to maintain at least
99 percent accuracy in picking orders, on average. (Doc. 36, Rask Decl.; see also Ex. A to Rask
Decl.) (Written Warning and Incentive Criteria provided to distribution center employees).
Employees are notified of accuracy problems and have the opportunity to correct them, but if
they are unable to do so in a timely manner and checkers continue to detect incorrectly filled
orders, the pickers' overall accuracy rating is affected. (Doc. 36, Rask Decl.). When a picker's
accuracy rating consistently falls below acceptable levels, the picker is given a warning. !d. If,
after several of these warnings, the picker is simply unable to improve his or her performance and
continues to fill orders incorrectly, SanMar will discharge the picker. !d.
In August 2009, Famularcano again failed to improve her performance and was again
warned in writing. (Doc. 37, Ex. M to Holt Decl.) (8/29/09 warning, informing Famularcano of
failure to meet minimum requirements and stating, "A maximum of three (3) notices will be
given regarding this matter."). Famularcano received this warning and signed it. (Famularcano
Dep. at 96: 12-16). The following week, Famularcano again failed to meet minimum standards
and was again warned. (Doc. 37, Ex. N to Holt Decl.) (9/5/09 warning). Famularcano received
and signed this warning. (Famularcano Dep. at 98:2-100:5.6). One week later, Famularcano
again failed to meet minimum standards and was again warned. (Doc. 3 7, Ex. 0 to Holt Decl.)
(9/12/09 warning). This warning expressly stated, "This is your last notice regarding this
matter." !d. For each subsequent week that followed, Famularcano failed to meet the
minimum accuracy level necessary for her position. (Doc. 3 7, Ex. P to Holt Decl.) (1 0/3/09
termination notice). On October 3, 2009, SanMar terminated Famularcano's employment. !d.

8

Between October 3, 2009 and November 16, 2009, SanMar terminated the employment of
seven employees in its Cincinnati-area distribution facility for not meeting minimum productivity
or accuracy standards. (Doc. 36, Rask Decl.). Famularcano was the only Filipino or Asian
employee whose employment was terminated. Id. Famularcano testified she is personally aware
of non-Asian, non-Filipino pickers who were discharged for exactly the same reason that she
was. (Famularcano Dep. at 80:9-81:3; Famularcano Dep. at 106:22-108:2).
Famularcano admits that her (Asian, Filipino) sister and her (Asian, Filipino) cousin are
still employed in comparable positions in SanMar's West Chester facility. (Famularcano Dep. at
61:4-63:18).
Famularcano filed a charge with the United States Equal Employment Opportunity
Commission alleging discrimination and retaliation. (Doc. 37, Ex. Q to Holt Decl.). The charge
document identifies only "National Origin" and "Retaliation" as the bases for the charge. Id. at 1.
The narrative portion of the charge states:
1. I am Filipino. On or about October 6, 2009, I was terminated because of my
national origin.

2. Danny Bailey, my Supervisor, terminated me because of unsatisfactory work
performance.
3. I believe that I was discriminated against because of my national origin in
violation ofthe Civil Rights Act of 1964, as amended.

Id. at 3. Subsequently, Famularcano filed an additional charge. (Doc. 37, Ex. R to Holt Decl.;
Ex. S to Holt Decl.). Famularcano alleged SanMar retaliated against her when it gave her an
unfavorable reference after she applied for another job. (Doc. 37, Ex. S to Holt Decl. at 3).
Famularcano testified that no one at SanMar ever made a comment to her about being
Filipino or about her race when she worked at SanMar. (Famularcano Dep. at 113:3-115 :20).

9

B. Standard of review
A motion for summary judgment should be granted if the evidence submitted to the court
demonstrates that there is no genuine issue as to any material fact and that the movant is entitled
to summary judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "[A] party
seeking 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." Celotex Corp., 477 U.S. at 323.

See also Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1982). The
movant may do so by merely identifying that the non-moving party lacks evidence to support an
essential element of its case. See Barnhart v. Pickrel, Shaeffer & Ebeling Co. L.P.A., 12 F.3d
1382, 1389 (6th Cir. 1993).
The party opposing a properly supported motion for summary judgment "may not rest
upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing
that there is a genuine issue for trial." Anderson, 477 U.S. at 248 (quoting First Nat'! Bank of

Arizona v. Cities Serv. Co., 391 U.S. 253 (1968)). In response to a properly supported summary
judgment motion, the non-moving party "is required to present some significant probative
evidence which makes it necessary to resolve the parties' differing versions of the dispute at
trial." Sixty Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987) (quoting First

Nat'! Bank, 391 U.S. at 288-89). Although the non-movant need not cite specific page numbers
of the record in support of its claims or defenses, "the designated portions of the record must be
presented with enough specificity that the district court can readily identify the facts upon which

10

the non-moving party relies." Guarino, 980 F.2d at 405 (citing Inter-Royal Corp. v. Sponseller,
889 F.2d 108, Ill (6th Cir. 1989).
The movant bears the burden of demonstrating that no material facts are in dispute. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
non-moving party's failure to respond to the motion does not lessen the burden on either the
moving party or the Court to demonstrate that summary judgment is appropriate. Mongan v.
Lykins, No. 1:09-cv-00626, 2010 WL 2900409, at *3 (S.D. Ohio 2010) (citing Guarino, 980
F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-455 (6th Cir. 1991)). Judge Spiegel in Mongan
explained the Court's obligation when evaluating an unopposed motion for summary judgment as
follows:
[T]he Court must review carefully those portions of the submitted evidence
designated by the moving party. The Court will not, however, sua sponte comb
the record from [the non-moving party's] perspective. Instead, the Court may
reasonably rely on [the movant's] unrebutted recitation of the evidence, or
pertinent portions thereof, in reaching a conclusion that certain evidence and
inferences from evidence demonstrate facts which are uncontroverted. If such
evidence supports a conclusion that there is no genuine issue of material fact, the
Court should determine that [the movants] have carried their burden....

!d. (internal quotations and citations omitted).
C. Summary judgment should be granted for defendants on plaintiff's race6 and
national origin discrimination claims.
Title VII provides that "[i]t shall be an unlawful employment practice for an employer to
... discharge any individual, or otherwise to discriminate against any individual with respect to

6

The Court declines to reach defendants' alternative argument that plaintiff failed to exhaust her
administrative remedies before the EEOC on her race discrimination claim (Doc. 35 at 13) because even assuming
the Court would consider plaintiffs race discrimination claim as reasonably related to or growing out of the factual
allegations in plaintiffs EEOC charge, see Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010),
plaintiffs race claim would nevertheless fail for the same reasons that her national origin discrimination claim fails.

11

his compensation, terms, conditions, or privileges of employment, because of such individual's
race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). 7 A plaintiff may establish
a discrimination claim by either direct or circumstantial evidence. Younis v. Pinnacle Airlines,
Inc., 610 F.3d 359, 363 (6th Cir. 2010). "Direct evidence of discrimination is 'that evidence

which, if believed, requires the conclusion that unlawful discrimination was at least a motivating
factor in the employer's actions."' Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th
Cir. 2003) (en bane). "Circumstantial evidence, on the other hand, is proof that does not on its
face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference
that discrimination occurred." !d.
A plaintiff who lacks direct evidence of discrimination may establish a prima facie case of

discrimination through circumstantial evidence by showing that: 1) she is a member of a
protected class; 2) she suffered an adverse employment action; 3) she was qualified for the
position lost or not gained; and 4) she was replaced by an individual outside the protected class.
Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992). Plaintiff may also establish the

fourth prong of a prima facie case of discrimination by showing that she was treated less
favorably than a similarly-situated individual outside the protected class. See Clayton v. Meijer,
Inc., 281 F.3d 605, 610 (6th Cir. 2002).

If the plaintiff establishes a prima facie case, the employer can overcome the prima facie
case by articulating a legitimate, nondiscriminatory reason for the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Ifthe employer carries its burden, the plaintiff must show
7

Federal case law interpreting Title VII is applicable to claims asserted under Ohio Rev. Code§ 4112.02.
See Ohio Civil Rights Comm 'n v. Ingram, 630 N.E.2d 669 (Ohio 1994); Little Forest Med. Center ofAkron v. Ohio
Civil Rights Comm., 575 N.E.2d 1164 (Ohio 1991); Osman v. Isotec, Inc., 960 F. Supp. 118, 120-21 (S.D. Ohio
1997) (Dlott, J.). Accordingly, this Court's opinion with respect to plaintiff's Title VII claims applies with equal
force and effect to plaintiff's discrimination claims asserted under the Ohio civil rights statute.

12

that the reasons offered by the employer were not its true reasons but were a pretext for
discrimination. !d. at 804.
Plaintiff has failed to present any direct evidence of discrimination in this case. Nor has
she produced probative evidence in support of her prima facie case of discrimination to establish
a circumstantial case of discrimination. Specifically, plaintiff has not presented evidence
establishing the fourth prong of her prima facie case of discrimination. She has failed to show
that she was replaced by an individual outside the protected class, Mitchell, 964 F.2d at 582, or
that she was treated less favorably than a similarly-situated individual outside the protected class.
Clayton, 281 F.3d at 610. To the contrary, the undisputed evidence demonstrates that non-Asian,

non-Filipino employees were terminated for the same deficiencies in accuracy for which plaintiff
was terminated.
Moreover, defendants have articulated a legitimate, nondiscriminatory reason for
plaintiff's discharge, i.e., that plaintiff's accuracy rating consistently fell below acceptable levels
for pickers, and plaintiff has failed to present probative evidence sufficient to rebut defendants'
legitimate nondiscriminatory reason. As plaintiff has failed to present evidence that creates a
genuine issue of fact as to whether the reason offered by defendants was its true reason for
discharging plaintiff, McDonnell Douglas, 411 U.S. at 804, summary judgment should be granted
for defendants on plaintiff's race and national origin discrimination claims.
D. Summary judgment should be granted for defendants on plaintiff's hostile work
environment claim.
Discrimination based on a hostile or abusive work environment occurs "[w]hen the
workplace is 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
13

working environment." Harris v. Forklift Systems, 510 U.S. 17,21 (1993) (citations and internal
quotation marks omitted). To establish a prima facie case of a hostile work environment based
on national origin, plaintiff must show that: (1) she is a member of a protected class; (2) she was
subjected to unwelcome harassment; (3) the harassment was based on her national origin; (4) the
harassment created a hostile work environment; and (5) the employer is vicariously liable. Clark
v. United Parcel Service, Inc., 400 F.3d 341, 347 (6th Cir. 2005); Williams v. General Motors
Corp., 187 F.3d 553, 560-561 (6th Cir. 1999). "An employer is subject to vicarious liability to a
victimized employee for an actionable hostile environment created by a supervisor with
immediate (or successively higher) authority over the employee." Faragher v. City of Boca
Raton, 524 U.S. 775, 807 (1998). Where the plaintiff shows actionable discrimination and a
"tangible employment action" such as "discharge, demotion, or undesirable reassignment"
employer liability is automatic. Williams, 187 F.3d at 561 n.2 (citing Faragher, 524 U.S. at 807808). See also Clark, 400 F.3d at 348. If there was no tangible employment action, an employer
can escape liability only ( 1) if it took reasonable care to prevent and correct any harassing
behavior; and (2) if the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Faragher, 524 U.S. at 807-808 (citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 76263 (1998)).
In the instant case, there is no dispute that plaintiff is a member of a protected class.
However, plaintiff has failed to present probative evidence that she was subjected to unwelcome
harassment, that the harassment was based on her national origin, and that the harassment created
a hostile work environment. Plaintiff testified that while employed at SanMar, no one ever made

14

a comment to her about being Filipino or about her race. (Famularcano Dep. at 113:3-115:20).
The only "harassment" plaintiff complained about was alleged "bullying" by a fellow co-worker.
Yet, plaintiff testified that the alleged bullying had nothing to do with her national original.
(Famularcano Dep. at 115:14-20). There is no evidence establishing the second, third, and fourth
prongs of plaintiff's prima facie case of a hostile work environment. Accordingly, defendants'
motion for summary judgment should be granted on plaintiff's hostile work environment claim.

E. Summary judgment should be granted for defendants on plaintiff's retaliation
claims.
As best the Court can discern, it appears that plaintiff is alleging two separate retaliation
claims. She alleges that defendants retaliated against her by discharging her and by giving her an
unfavorable job reference after she filed an EEOC charge of discrimination. (Doc. 1).
In order to establish a prima facie case of retaliation, a plaintiff must establish that: 1) she
engaged in activity protected by the discrimination statutes; 2) the exercise of her civil rights was
known to the defendant; 3) thereafter, the defendant took an employment action adverse to the
plaintiff; and 4) there was a causal connection between the protected activity and the adverse
employment action. See Harrison v. Metropolitan Govt. ofNashville, 80 F.3d 1107, 1118 (6th
Cir. 1996), overruled on other grounds as recognized by Jackson v. Quanex Corp., 191 F.3d 647,
667 (6th Cir. 1999). To establish the causal connection required in the fourth prong, the plaintiff
must produce sufficient evidence from which an inference could be drawn that the adverse action
would not have been taken had the plaintiff not participated in protected activity. See EEOC v.
Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997); Jackson v. RKO Bottlers ofToledo,
Inc., 743 F.2d 370, 377 (6th Cir. 1984).
Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the
15

defendant to proffer a legitimate, non-retaliatory reason for the adverse employment action.
Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1082 (6th Cir. 1994). Ifthe
defendant meets its burden of production, the burden shifts back to the plaintiff to show that the
reasons proffered by the defendant are but a pretext for retaliation. !d. However, the burden of
persuasion remains with the plaintiff at all times. St. Mary's Honor Center v. Hicks, 509 U.S.
502, 511 (1993).
With respect to plaintiffs retaliatory discharge claim, plaintiff fails to establish a prima
facie case because she did not engage in lawfully protected activity and there is no evidence of a
causal connection between her conduct and defendants' termination of her employment. "Under
Title VII, there are two types of protected activity: participation in a proceeding with the [EEOC]
and opposition to an apparent Title VII violation." Wasek v. Arrow Energy Services, Inc., 682
F.3d 463, 469 (6th Cir. 2012) (citing Booker v. Brown & Williamson Tobacco Co., 879 F.2d
1304, 1313 (6th Cir.1989)). In determining whether "opposition" activity is protected, "Courts
are required to balance the purpose of [Title VII] to protect persons engaging reasonably in
activities opposing ... discrimination, against Congress' equally manifest desire not to tie the
hands of employers in the objective selection and control of personnel." Booker, 879 F .2d at
1312 (internal quotations omitted). Where an employee's conduct interferes with the
performance of her job such as to render her ineffective, disrupts the employment environment,
or interferes with the employer's goals, the opposition conduct is not protected. !d. It is not
necessary that the opposed activity actually constitute a violation of Title VII, but the employee
opposing the conduct must have a good faith belief that the conduct she is complaining about
violates Title VII. Wasek, 682 F.3d at 469.

16

Plaintiff has failed to proffer any evidence supporting her retaliatory discharge claim. In
addition, the only arguably protected activity plaintiff engaged in prior to her discharge was her
single complaint of"bullying" by a fellow employee. (Doc. 37, Ex. I to Holt Decl.)
(memorandum dated 5112/08); (Famularcano Dep. at 29:14-31 :23). However, plaintiff admitted
that the bullying charge was not related to her national origin. (Famularcano Dep. at 115: 14-20).
Thus, plaintiff did not have a good faith belief that the conduct of which she complained violated
Title VII. Wasek, 682 F.3d at 469. In addition, plaintiff has failed to present probative evidence
of any causal connection between her bullying complaint in May 2008 and her discharge in
October 2009. Accordingly, there is insufficient evidence in the record establishing the first and
fourth prongs of plaintiffs prima facie case of retaliatory discharge.
With respect to her unfavorable job reference claim, plaintiff fails to establish the causal
connection between the filing of her EEOC charge and the alleged unfavorable reference given to
a prospective employer by SanMar. Plaintiff testified that she had applied for a job with
Cincinnati Sub-Zero after her employment with SanMar was terminated. She testified that her
brother, who used to work for Cincinnati Sub-Zero, told her that his supervisor said plaintiff
"was not considered for the position because there is a problem on me (plaintiff) with-on my
previous employer which they would rather not discuss." (Famularcano Dep. at 15:18-16:25).
When asked whether her brother asked what the problem was, plaintiff responded, "No." !d.
This evidence, which is the only evidence arguably related to this retaliation claim, cannot be
considered by the Court on a motion for summary judgment as it constitutes inadmissible
hearsay. See Albert v. United States, 481 F.3d 404, 409 (6th Cir. 2007); Carter v. University of
Toledo, 349 F.3d 269, 274 (6th Cir. 2003). Nor does the evidence, even if admissible, establish

17

----------------------

that the "problem" referenced by the supervisor was plaintiffs filing of an EEOC charge. In the
absence of any competent, admissible evidence, plaintiff fails to establish the fourth prong of her
prima facie case for her second retaliation claim. Accordingly, summary judgment should be
granted for defendants on both of plaintiffs retaliation claims.

F. The Court should decline supplemental jurisdiction over plaintiff's state law
claim of intentional infliction of emotional distress.
To the extent that plaintiffs complaint alleges a state law claim of intentional infliction of
emotional distress against defendants, it is not necessary to address the merits of this claim.
Pursuant to 28 U.S.C. § 1367(c)(3), the district court has the discretion to dismiss claims over
which it has supplemental jurisdiction when it has dismissed all claims over which it has original
jurisdiction. Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 546 (6th Cir. 1999). Moreover,
the Sixth Circuit has recognized a general rule disfavoring a district court's exercise of
supplemental jurisdiction when federal question claims are dismissed before trial. See Gaff v.
Federal Deposit Ins. Corp., 814 F.2d 311, 319 (6th Cir. 1987) (citing United Mine Workers v.
Gibbs, 383 U.S. 715 (1966)). See also Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) ("If
the federal claims are all dismissed before trial, the state claims generally should be dismissed as
well.") (quoting Wojnicz v. Davis, 80 F. App'x 382, 384-85 (6th Cir. 2003)). Therefore, if the
Court adopts the undersigned's recommendation to grant defendants' motion for summary
judgment, then the Court should decline to exercise supplemental jurisdiction over plaintiffs
state law claim of intentional infliction of emotional distress claims and dismiss this claim
without prejudice.

18

IT IS THEREFORE RECOMMENDED THAT:
1. Defendants' motion for summary judgment be GRANTED and this case be TERMINATED

on the Court's docket.
2. The Court decline to exercise supplemental jurisdiction over plaintiffs state law claim of
intentional infliction of emotional distress and dismiss this claim without prejudice.

Date:

~X~

qjl'),;l.

Karen L. Litkovitz
United States Magistrate Judge

19

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 1:1 0-cv-511

ELENA FAMULARCANO,
Plaintiff

Spiegel, J.
Litkovitz, M.J.

vs
SANMAR CORP., et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

20

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