Shazor v. Professional Transit Management, LTD et al
Filing
74
OPINION AND ORDER granting 48 Defendants' Motion for Summary Judgment as to Counts I, II and IV; denying 50 Plaintiff's Motion for Partial Summary Judgment on Issues of Race and Gender Discrimination. The Court declines to accept supplemental jurisdiction of Plaintiff's remaining state law claims; they are dismissed without prejudice. This matter is closed on the Court's docket. Signed by Judge S Arthur Spiegel on 2/6/2013. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARILYN SHAZOR,
:
:
:
:
:
:
:
:
:
:
:
Plaintiff,
v.
PROFESSIONAL TRANSIT
MANAGEMENT, LTD, et al.,
NO. 1:11-CV-150
OPINION & ORDER
Defendants.
This matter is before the Court on cross motions for
summary judgment and the respective responses and replies (docs.
48, 50, 54, 55, 56 & 57).
Because the Court finds that no
genuine issues of material fact exist as to whether Plaintiff’s
employment was impermissibly terminated on the basis of race
and/or
sex,
the
Court
GRANTS
Defendants’
motion
as
to
Plaintiff’s discrimination claims and DENIES Plaintiff’s motion.
I.
BACKGROUND
Defendant Professional Transit Management, LTD (“PTM”)
is
a
public
transportation
management
company
that,
at
all
relevant times, provided management services to the Southwestern
Ohio Regional Transit Authority (“SORTA”), which operates bus
services in southwestern Ohio.
Pursuant to the contract between
1
PTM and SORTA, PTM hired and supervised SORTA’s CEO, and the CEO
was a fulltime employee of PTM.
Plaintiff’s relationship with
PTM began in 2006 when she was hired as SORTA’s Chief Operating
Officer by SORTA’s then-CEO (and PTM founder) Michael Setzer.
She reported to and was supervised by Setzer in that role until
March 31, 2008, at which point Setzer’s role with the company
changed, and Plaintiff was promoted to the position of SORTA
CEO.
At the request of members of SORTA’s board, Setzer acted
as a mentor and consultant to Plaintiff in her new role.
In
August 2009, Setzer conducted the first yearly evaluation of
Plaintiff’s performance as CEO, finding her performance to be
satisfactory overall but that she failed to meet expectations in
the areas of fostering mutual support and rapport with the team.
Around this same time, Thomas Hock, PTM’s president and founder,
became Plaintiff’s direct supervisor, and he continued in that
role until he terminated Plaintiff’s employment in August 2010.
At
with
Will
performance.
various
points
in
2009,
Scott,
in
which
they
Setzer
exchanged
criticized
emails
Plaintiff’s
During this time period, Scott was President of
PTM; he retired from PTM at the end of 2009 and continued as a
consultant for another year.
The emails contained derogatory
descriptors of Plaintiff, including that she lacked class, that
she “sounds like” a “fool”, that her conduct was like a “punk”,
2
and that she behaved like a “prima donna”.
On some of these
emails, Hock was copied, but he was not the author of any of
them.
In an email from Scott to Setzer on April 12, 2010, Scott
said that Plaintiff “turned out to be one helluva bitch”.
Hock
was not copied on that email.
On
August
20,
2010,
Defendant
Hock
terminated
Plaintiff’s employment on the basis that, according to Hock,
Plaintiff
misrepresented
occasions.
information
to
SORTA’s
board
on
two
Hock then assumed the responsibilities of CEO for
approximately
one
month,
and
then
consent, a Hispanic woman as CEO.
PTM
hired,
with
SORTA’s
Plaintiff, who is African
American, contends that her employment was instead terminated
because of Defendants’ race and/or sex-based animus.
In
her
complaint,
Plaintiff
claims
(i)
that
her
termination resulted from discrimination on the basis of race
and/or gender, in violation of 42 U.S.C. §1981 and 42 U.S.C.
§§2000e, et seq. and Ohio Rev. Code 4112 (Counts I, II & IV)1;
1
The Court notes that, while Chapter 4112.02 of the Ohio
Revised Code prohibits an employer from terminating an employee
on the basis of color, religion, sex, military status, national
origin, disability, age or ancestry, see Ohio Rev. Code
§4112.02, Plaintiff drafted her Ohio-law discrimination claim to
encompass only race-based discrimination (doc. 1). Regardless,
state-law-based sex and race discrimination claims are generally
construed in the same manner as federal laws because Ohio antidiscrimination laws prohibit the same conduct as Title VII.
Shoemaker-Stephen v. Montgomery County Bd. of Com'rs, 262
F.Supp.2d 866, 874 (S.D. Ohio 2003). Thus, the Court’s analysis
3
(ii) defamation, libel and slander, in violation of Ohio common
law
(Count
III);
and
tortious
relationship (Count V).
interference
with
a
business
Plaintiff and Defendants each filed
motions for summary judgment, and the Court heard arguments on
the motions on December 20, 2012, making the motions ripe for
the Court’s decision.
II. STANDARD
A grant of summary judgment is appropriate “if the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Fed.
R.
Civ.
Broadcasting
P.
56;
System,
see
Inc.,
also,
368
e.g.,
U.S.
464
Poller
v.
Columbia
(1962);
LaPointe
v.
United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993);
Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and
Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992) (per
curiam).
determine
In reviewing the instant motion, “this Court must
whether
the
evidence
presents
a
sufficient
disagreement to require submission to a jury or whether it is so
one-sided
that
one
party
must
prevail
as
a
matter
of
and decisions with respect to Plaintiff’s federal Title VII
claims apply with equal force to her state-based race claim,
Count IV.
4
law.”
Fatton v. Bearden, 8 F.3d. 343, 346 (6th Cir. 1993), quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 251-252 (1986)
(internal quotation marks omitted).
The process of moving for and evaluating a motion for
summary judgment and the respective burdens it imposes upon the
movant and non-movant are well settled.
summary
judgment
...
bears
the
First, "a party seeking
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. v. Catrett, 477 U.S. 317, 323 (1986); see also
LaPointe,
8
F.3d
at
378;
Guarino
v.
Brookfield
Township
Trustees, 980 F.2d 399, 405 (6th Cir. 1982); Street v. J.C.D.
Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
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).
Faced
completion
of
with
such
sufficient
a
motion,
discovery,
the
must
non-movant,
submit
after
evidence
in
support of any material element of a claim or defense at issue
in the motion on which it would bear the burden of proof at
trial, even if the moving party has not submitted evidence to
5
negate the existence of that material fact.
U.S.
at
(1986).
317;
Anderson
v.
Liberty
Lobby,
See Celotex, 477
Inc.,
477
U.S.
242
As the "requirement [of the Rule] is that there be no
genuine issue of material fact," an "alleged factual dispute
between
defeat
the
an
judgment."
parties"
otherwise
as
to
some
properly
ancillary
supported
matter
motion
"will
for
not
summary
Anderson, 477 U.S. at 247-248 (emphasis added); see
generally Booker v. Brown & Williamson Tobacco Co., Inc., 879
F.2d
1304,
1310
(6th
Cir.
1989).
Furthermore,
"[t]he
mere
existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence
on which the jury could reasonably find for the [non-movant]."
Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d
781, 784 (6th Cir. 1994).
present
"significant
Accordingly, the non-movant must
probative
evidence"
demonstrating
that
"there is [more than] some metaphysical doubt as to the material
facts" to survive summary judgment and proceed to trial on the
merits.
Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-340
(6th Cir. 1993); see also Celotex, 477 U.S. at 324; Guarino, 980
F.2d at 405.
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
6
specificity that the district court can readily identify the
facts upon which the non-moving party relies." Guarino, 980 F.2d
at 405, quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108,
111 (6th Cir. 1989) (internal quotation marks omitted).
In
contrast, mere conclusory allegations are patently insufficient
to defeat a motion for summary judgment.
See McDonald v. Union
Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990).
The Court must
view all submitted evidence, facts, and reasonable inferences in
a light most favorable to the non-moving party.
See Matsushita
Elec.
U.S.
Indus.
Co.
v.
Zenith
Radio
Corp.,
475
574,
587
(1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); United
States v. Diebold, Inc., 369 U.S. 654 (1962).
Furthermore, the
district court may not weigh evidence or assess the credibility
of witnesses in deciding the motion.
See Adams v. Metiva, 31
F.3d 375, 378 (6th Cir. 1994).
Ultimately,
demonstrating
that
the
no
movant
material
Matsushita, 475 U.S. at 587.
bears
facts
are
the
in
burden
dispute.
of
See
The fact that the non-moving party
fails 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.
See Guarino, 980 F.2d at 410; Carver
v. Bunch, 946 F.2d 451, 454-455 (6th Cir. 1991).
III.
Discussion
7
A. No Direct Evidence
Plaintiff
contends
that
she
has
presented
direct
evidence of discrimination, thus taking this case out of the
realm
of
the
framework
familiar
for
McDonnell
single-motive
Douglas
burden-shifting
discrimination
claims.
Specifically, she argues (i) that the emails exchanged between
Setzer
and
Scott
are
direct
evidence
of
sex-and-race-based
animus and (ii) that the following constitute direct evidence
that Setzer and Scott were decision-makers: Scott, Setzer and
Hock
were
the
three
principals
of
the
company
for
which
Plaintiff worked; at various points Plaintiff was supervised by
one or more of them; Scott was present at the meeting where she
was terminated; in the four months between the “helluva bitch”
comment and Plaintiff’s termination, Hock had conferences with
Scott and/or Setzer; and Scott, who made the “helluva bitch”
comment, sent to Hock a generic termination checklist in advance
of the termination meeting.
While
Setzer
and
the
Scott
Court
to
be
finds
the
disturbing,
emails
exchanged
distasteful,
and
between
highly
unprofessional, the Court need not decide whether the use of the
words
“punk”,
“prima
donna”,
“fool”,
“Her
Highness”,
and
“helluva bitch” in the contexts in which they were used here
constitutes
direct
evidence
of
8
impermissible
discrimination.
This is so because Plaintiff has not adduced direct evidence
showing that Setzer and Scott were involved in the decision to
terminate Plaintiff’s employment.
As Defendants note, in order
for statements to constitute direct evidence of discrimination,
they must have been made by the decision-maker, and they must
relate to the adverse employment action.
Henry
Filters,
2007)(abrogated
Inc.,
on
505
other
F.3d
See, e.g., Blair v,
517,
grounds)(holding
524-5
(6th
that
Cir.
where
an
inference is necessary to connect the statement at issue to the
adverse
employment
action,
the
statement
cannot
be
direct
evidence of animus).
Here,
Plaintiff’s
evidence
fails
on
both
fronts.
First, the evidence in the record unequivocally shows (i) that
Hock
was
Plaintiff’s
sole
supervisor
at
the
time
of
her
termination and for the previous year and (ii) that Hock did not
make any of the derogatory statements at issue here.
In the
face of this evidence, Plaintiff contends that Setzer and Scott
were “involved in” the decision to terminate her employment,
which would put their comments in the realm of direct evidence
(doc. 55, citing Bernstein v. Sephora, 182 F.Supp.2d 1214, 1220
(S.D. Fl. 2002)).
Unfortunately for Plaintiff, the evidence
upon which she relies for this contention cannot in any way be
considered direct evidence.
In the Sixth Circuit, “direct
9
evidence” is that which is probative of an alleged fact without
requiring
further
inference.
Rowan
v.
Lockheed
Martin
Energy
Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). It is “that
evidence
which,
if
believed,
requires
the
conclusion
that
unlawful discrimination was at least a motivating factor in the
employer's
actions.”
Jacklyn
v.
Schering-Plough
Healthcare
Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999).
“the
evidence
must
establish
not
only
that
the
And,
plaintiff's
employer was predisposed to discriminate on the basis of [race
and/or
sex],
but
also
that
the
employer
acted
on
that
predisposition.” Hein v. All America Plywood Co., 232 F.3d 482,
488 (6th Cir. 2000).
The facts upon which Plaintiff relies, even viewed in
the light most favorable to Plaintiff, simply do not require the
conclusion that Setzer and Scott were involved in the decision
to terminate Plaintiff’s employment.
It is possible that a
reasonable jury could infer their involvement from the facts
that Scott, Setzer and Hock were the three principals of the
company for which Plaintiff worked; at various points Plaintiff
was supervised by one or more of them; Scott was present at the
meeting where she was terminated; in the four months between the
“helluva bitch” comment and Plaintiff’s termination, Hock had
conferences with Scott and/or Setzer; and Scott, who made the
10
“helluva
bitch”
comment,
sent
to
Hock
a
generic
checklist in advance of the termination meeting.
termination
However, none
of these facts alone or in combination requires the conclusion
that Scott and Setzer were involved in the decision to terminate
Plaintiff’s employment.
A
Setzer
jury
could
and
Hock
reasonably
were
the
infer
principals
of
that,
because
Defendant
Scott,
PTM,
and
because they each appear to have been involved in supervising
Plaintiff at various points in her career, they consulted with
each other about her performance and its impact on the company.
But there is no direct evidence that they collaborated in that
way, and a jury would in no way be required to reach that
conclusion. Similarly, a jury could reasonably infer from the
facts that Hock, Setzer and Scott were present at meetings or
conferences
during
the
period
between
the
“helluva
bitch”
comment and Plaintiff’s termination, that Scott was present at
the
termination
checklist
to
Hock
meeting,
in
and
advance
that
of
the
he
provided
meeting
that
a
generic
Scott,
at
least, was involved in the decision to terminate her employment.2
2
All of these inferences, of course, would only be
reasonable if the jury also discredited the testimony of Hock,
Setzer and Scott, each of whom is on record as saying that Hock
and Hock alone made the decision to terminate Plaintiff’s
employment. That is a credibility decision that would rest with
the jury, but even if the jury chose to disbelieve the three of
them, the inferences discussed herein would still be necessary
11
However,
Plaintiff
has
provided
no
evidence
of
what
was
discussed at any of the conferences and no evidence that Scott’s
presence at the termination meeting or the generic checklist
were anything other than routine measures.
Therefore, in order
to conclude from the evidence presented that Scott and Setzer
were involved in Plaintiff’s termination, inferential leaps are
required.
Such leaps would not necessarily be unreasonable, but
the fact that leaps must be taken to reach that conclusion means
that the evidence upon which Plaintiff relies is not direct
evidence.
See, e.g., Jacklyn, 176 F.3d at 928.
Simply put, because the statements were not made by
the man who actually made the decision to terminate Plaintiff’s
employment,
they
discrimination.3
cannot
be
direct
evidence
of
impermissible
See, e.g., Carter v. Univ. of Toledo, 349 F.3d
to reach the conclusion Plaintiff urges.
3
In her reply in support of her motion for summary
judgment, Plaintiff argues cursorily that the “cat’s paw” theory
of liability should apply here (doc. 56). The “cat’s paw” theory
of liability “refers to a situation in which ‘a biased
subordinate, who lacks decision-making power, influences the
unbiased decision-maker to make an adverse [employment]
decision, thereby hiding the subordinate's discriminatory
intent.” Bobo v. United Parcel Service, 665 F.3d 741, 755 (6th
Cir. 2012). As recently held by the Supreme Court in the
context of a statute barring discrimination against military
service members, “if a supervisor performs an act motivated by
antimilitary animus that is intended by the supervisor to cause
an adverse employment action, and if that act is a proximate
cause of the ultimate employment action, then the employer is
liable under USERRA.” Staub v. Proctor Hospital, 131 S. Ct.
1186, 1194 (2011).
12
269, 273 (6th Cir. 2003)(“comments made by individuals who are
not
involved
plaintiff's
in
the
decision-making
employment
do
not
process
constitute
regarding
direct
the
evidence
of
discrimination”); Hopson v. DaimlerChrysler Corp., 306 F.3d 427,
433 (6th Cir. 2002)(comments by manager lacking any involvement
in
the
decision-making
process
do
not
constitute
direct
evidence); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d
344, 354 (6th Cir. 1998) (“isolated discriminatory remark made
by
one
personnel
with
no
managerial
decisions
is
authority
not
over
considered
the
challenged
indicative
of…
discrimination”).
Further,
even
if
the
facts
presented
here
could
somehow be construed to be direct evidence that Scott and Setzer
were
involved
in
the
decision
to
terminate
Plaintiff’s
employment, Plaintiff must also show that the statements relate
to her termination, and this she has not done.
See, e.g.,
The record here contains undisputed evidence that neither
Scott nor Setzer was Plaintiff’s supervisor, at least for the
year leading up to her termination. It is not clear whether
cat's paw liability applies to hostile acts by mere co-workers,
as opposed to supervisors. The Staub court explicitly
“express[ed] no view” on the question. Id. at n. 4. The Sixth
Circuit has not extended cat's paw liability to the actions of
coworkers rather than supervisors, and under the circumstances
presented here, this Court will not do so now. Even if Scott
and Setzer could be seen as supervisors without decision-making
authority, Plaintiff has not presented any evidence creating a
genuine issue as to whether their alleged race and/or sex animus
was the proximate cause of her termination, so her cat’s paw
theory would fail anyway.
13
Bolander
v.
BP
2005)(noting
Oil
that
Co.,
128
Fed.Appx.
statements
that
412,
are
416
(6th
“unrelated
Cir.
to
the
decisional process” are not direct evidence, and finding comment
made
two
years
sufficient
prior
connection”
direct evidence).
to
to
employee’s
the
alleged
discharge
“lack[ed]
discrimination
to
be
Notably, nearly all of the emails were sent
in 2009, a year or more before her employment was terminated,
taking
those
evidence.
emails
out
of
the
realm
of
possible
direct
See, e.g., Phelps v. Yale Sec., Inc., 986 F.2d 1020,
1026-27 (6th Cir. 1993)(“Because McCulloch made the statements
nearly a year before the layoff, the comments were made too long
before
the
decision.”).
layoff
to
have
influenced
the
termination
The email containing the “helluva bitch” comment
is the email that is closest temporally to the termination, but
not only was Hock not a recipient of that email, it was sent
four
months
before
Plaintiff’s
employment
ended.
The
Sixth
Circuit has determined that “[d]iscriminatory remarks made while
implementing an adverse employment action are likely to reveal
animus.”
Erwin
v.
Potter,
79
Fed.Appx.
893,
898
(6th
Cir.
2003), citing Wexler v. White’s Fine Furniture, Inc., 317 F.3d
564,
572
(6th
Cir.
2003)(emphasis
added).
“In
contrast,
occasional disparaging remarks made during the regular course of
business about age or other protected characteristics are much
14
more
likely
ambiguous’
to
be
comments
considered
that
do
the
not
trigger
Id., citing Phelps, 986 F.2d 1020.
comment
was
not
made
kind
during
of
‘isolated
employer
and
liability.”
Here, the “helluva bitch”
the
course
of
terminating
Plaintiff’s employment, and there is no evidence even connecting
that comment in any way to her termination.
On the continuum,
it clearly falls on the “isolated” end, not on the animus end.
In short, the statements made in the emails require
the Court to infer that the decision to terminate Plaintiff’s
employment was motivated by her race and/or her gender because
the statements were not made by the decision-maker and because
they were attenuated from her termination by a period of many
months.
which
Because inferences are necessary, the evidence upon
Plaintiff
relies
is
circumstantial evidence.
not
direct
but
is,
instead,
Therefore, the Court must apply the
McDonnell Douglas framework to the record.
B. Plaintiff’s Prima Facie
A
evidence
Title
must
discrimination
VII
first
by
Case
plaintiff
make
showing
1)
out
utilizing
a
that
prima
she
circumstantial
facie
was
a
case
member
of
of
a
protected class; 2) that she was discharged; 3) that she was
qualified for the position held; and 4) either that she was
replaced
by
someone
outside
of
15
the
protected
class
or
that
similarly
situated
non-protected
employees
were
treated
more
favorably.
Geiger, 579 F.3d at 622; Minadeo v. ICI Paints, 398
F.3d
764
751,
After
the
(6th
Cir.
plaintiff
discrimination,
has
the
2005)(internal
made
out
employer
must
a
citations
prima
Co.,
580
F.3d
394,
400
(6th
Cir.
facie
present
nondiscriminatory reason for the termination.
omitted).
a
case
of
legitimate,
Chen v. Dow Chem.
2009).
The
burden
of
production then shifts back to the plaintiff to show that the
employer's
proffered
nondiscriminatory
reason
was
pretextual.
Id.
Here,
prongs.
there
is
no
dispute
about
the
first
three
Defendants, however, argue that Plaintiff has failed to
meet the fourth prong of the prima facie case because the facts
show that Plaintiff was neither replaced by someone outside the
class nor was she treated differently from a similarly situated
non-protected employee.
Defendants are correct.
Plaintiff does not provide any evidence that she was
treated
employee.
outside
differently
from
a
similarly-situated
non-protected
Instead, she argues that she was replaced by someone
the
protected
class
because
her
immediate,
albeit
temporary, replacement was Defendant Hock, who is a white man.
Defendants counter that this argument fails for several reasons,
not least that her permanent replacement was a Hispanic woman,
16
who
is
therefore
a
member
of
the
same
protected
class
as
Plaintiff.
As discussed by the Eleventh Circuit, the point of
requiring a plaintiff to show that she was replaced by someone
outside
the
protected
class
is
that
“a
company’s
practices may reveal its underlying motivation.
hiring
procedure
that
reveals
evidence
of
Therefore, a
preference
nonminority is indicative of discriminatory intent.”
Ceco Corp., 883 F.2d 977, 982 (11th Cir. 1989).
hiring
for
a
Hawkins v.
In Hawkins, the
court reversed the district court’s finding that the plaintiff
was replaced by a white man, finding instead that the white man
merely
“performed
[the
plaintiff’s]
duties
for
the
next
few
weeks” and that the plaintiff’s replacement was the next person
hired for the job permanently, who was African American.
984.
Similarly,
Plaintiff
here
was
someone inside the protected class.4
4
permanently
Id. at
replaced
While Hock did perform
Plaintiff asserts in her response to Defendants’ motion
for summary judgment that the woman who replaced her is not
actually a member of her protected class because they “are not
of the same subset within the protected class of minority
females” (doc. 55). Specifically, Plaintiff’s replacement is
Hispanic, and Plaintiff is African American, and Plaintiff is a
mother of dependent children and a sole provider, while her
replacement is not. Plaintiff thus contends that she has a
claim for “sex plus” and “race plus” discrimination and was not
replaced by someone with her same characteristics. The fatal
problems with Plaintiff’s position are that she has
misapprehended the “plus” theory, and she has presented no
evidence whatsoever that the fact that she is a single mother
17
by
Plaintiff’s
duties
for
a
few
weeks
until
her
permanent
replacement was hired, that fact provides no basis from which
anyone could reasonably infer that Plaintiff’s termination was
based
on
impermissible
discrimination
for
several
reasons.
First, Hock was never actually hired to replace Plaintiff.
As
Defendants note, given the contractual relationship between PTM
and SORTA, SORTA had to agree to the hiring of the next CEO, and
Hock’s name was never even proposed to SORTA as a permanent
factored into Hock’s decision to terminate her employment.
“Sex-plus” discrimination exists when a person is subjected
to disparate treatment based not only on her sex, but on her sex
considered in conjunction with a second characteristic. See
e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542, 544
(1971). Under a “sex-plus” theory of discrimination, it is
impermissible to treat men characterized by some additional
characteristic more or less favorably than women with the same
added characteristic. See Fisher v. Vassar College, 70 F.3d
1420, 1448 (2d Cir. 1995). “[G]ender-plus plaintiffs can never
be successful if there is no corresponding subclass of members
of the opposite gender. Such plaintiffs cannot make the
requisite showing that they were treated differently from
similarly situated members of the opposite gender.” Derungs v.
Wal-Mart Stores, Inc., 374 F.3d 428, 439 (6th Cir. 2004),
quoting Coleman v. B-G Maintenance Management, 108 F.3d 1199,
1204 (10th Cir. 1997). “[I]f there is no comparable subclass of
members of the opposite gender, the requisite comparison to the
opposite gender is impossible.” Id., quoting Martinez v.
N.B.C., Inc., 49 F.Supp.2d 305, 310 (S.D. Ny. 1999).
Plaintiff appears to assert the fact that she is a single
mother and her replacement was not is evidence of sex-plus
discrimination, but that is not the relevant analysis. To
establish a claim for sex-or-race-plus, she needed to have
presented evidence from which it could reasonably be inferred
that she was treated differently from single fathers or from
single parents who are not part of a racial minority. There is
absolutely nothing in the record from which such an inference
could reasonably be drawn.
18
replacement, let alone agreed to by it.
In contrast, the woman
who
to
was
hired
permanently
was
agreed
by
SORTA,
as
the
contract required.
Second, Hock was already a member of the PTM/SORTA
workforce and had been for years.
The Court may permissibly
assume in the absence of any evidence to the contrary that Hock
was
originally
discrimination,
hired
and
on
bases
Plaintiff
has
other
provided
than
no
improper
evidence
from
which the Court could reasonably infer that, suddenly, and only
for the few weeks for which he held the CEO position on an
interim basis, PTM impermissibly favored his white, male status.
See, e.g., Smith v. Page Foam Cushioned Prods. Co., 2005 WL
2176841 *5 (W.D. Pa. Sept. 8, 2005).
Third,
Hock
is
Plaintiff’s employment.
the
one
who
decided
to
terminate
The fact that Hock himself took over
the duties of CEO only long enough for him to then hire someone
else
who
falls
into
a
protected
category
cuts
against
the
contention that his decision to terminate Plaintiff’s employment
was
motivated
by
race
and/or
sex-based
animus.
Had
Hock
remained in the position permanently or had he permanently hired
someone
outside
the
protected
class,
an
discrimination could reasonably have been drawn.
inference
of
But under the
circumstances presented here, such an inference is simply not
19
reasonable.
“Replacement by a nonminority is the fourth element of
a
prima
facie
case
because
it
is
evidence
of
preferential
treatment for nonminorities in the work place.” Hawkins, 883
F.2d at 983.
seen
to
Here, nothing in the record could reasonably be
be
evidence
of
such
preferential
treatment.
Consequently, Plaintiff has failed to satisfy the elements of a
prima
facie
case,
and
the
Court
therefore
does
not
need
to
as
she
is
address the issue of pretext.
In
sum,
Plaintiff
has
not
presented,
required to do, “significant probative evidence” demonstrating
that “there is [more than] some metaphysical doubt as to the
material facts” and has failed to satisfy the elements of the
prima facie case for race or sex discrimination.
F.3d at 339-340.
See Moore, 8
The Court’s role in evaluating a motion for
summary judgment on a Title VII claim is to “‘determine if a
plaintiff has put forth sufficient evidence for a reasonable
jury to find her to have met the prima facie requirements.’”
Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th
Cir.2000).
No reasonable jury could, on these facts, find the
prima facie requirements met.
IV.
Conclusion
Because Plaintiff has failed to either adduce direct
20
evidence of impermissible discrimination or meet her prima facie
case, Defendants are entitled to summary judgment on Plaintiff’s
federal and state discrimination claims (Counts I, II & IV).
See Barnhart v. Peckrel, Schaeffer & Ebeling Co., 12 F.3d 1382,
1395 (6th Cir. 1993).
claims,
she
In addition to Plaintiff’s discrimination
alleges
state
law
claims
against
Defendants
for
defamation, libel and slander and tortious interference with a
business
relationship
(doc.
1).
The
Court
finds
summary
judgment is appropriate on Plaintiff’s federal claims and statelaw
discrimination
claim
and
declines
to
accept
supplemental
jurisdiction of Plaintiff’s remaining state law claims; they are
dismissed
without
prejudice.
See
28
U.S.C.
§1367(c);
Brandenburg v. Housing Auth. of Irvine, 253 F.3d 891, 900 (6th
Cir. 2001).
The Court thus GRANTS Defendants’ motion (doc. 48)
as to Counts I, II & IV, and this matter is closed on the
Court’s docket.
SO ORDERED.
Dated:
February 6, 2013
s/S. Arthur Spiegel________________
S. Arthur Spiegel
United States Senior District Judge
21
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