Evans v. D.E. Foxx & Associates, Inc.

Filing 82

ORDER granting 53 Defendant's Motion for Summary Judgment; denying 55 Plaintiff's Motion for Summary Judgment; adopting Report and Recommendation 75 ; Overruling plaintiff's objections. Signed by Judge Herman J. Weber on 9/19/13. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LISA MAY EVANS,
Plaintiff,
v.

Case No. 1:11-cv-261-HJW

D.E. FOXX & ASSOCIATES, INC.,
Defendant
ORDER
Pending are the parties’ cross-motions for summary judgment (doc. nos. 53,
55). Defendant filed proposed findings of fact and conclusions of law, which
plaintiff has highlighted as true, false, or irrelevant (doc. nos. 65, 67-1). On July 24,
2013, the Magistrate Judge entered a Report and Recommendation (“R&R”),
recommending that defendant’s motion be granted, and that plaintiff’s motion be
denied (doc. no. 75). Plaintiff filed objections (doc. nos. 76, 77), and defendant
responded (doc. no. 81). Having fully considered the record, including the parties’
briefs and related filings, proposed findings, exhibits, and applicable authority, the
Court agrees with the Magistrate Judge’s recommendations. The Court will
therefore overrule the objections, grant the defendant’s motion, and deny the
plaintiff’s motion, for the following reasons:
I. Background
The Magistrate Judge has already recited the facts of this case (doc. no. 75
at 1-5), and those facts are incorporated herein by reference. Any “disputed” facts
will be noted and discussed herein. To summarize, in February 2009, attorney Lisa
1

May Evans (“plaintiff”) approached CEO David Foxx of D.E. Foxx & Associates,
Inc. (“defendant”) about providing human resource consulting services or legal
services to the company, whose Director of Human Resources (“HR”) had recently
died of a heart attack. Foxx expanded the former position to include additional
duties and hired Evans as an at-will employee in a new position entitled
“Vice-President of Human Resources” (“VP of HR”). Her total compensation was
$150,000 annually, based on a salary of $125,000 with a guaranteed bonus of
$25,000 after the first year. 1
When hired, plaintiff was the fourth highest paid employee at the company
(doc. no. 67-1 at ¶ 35). All four of these employees (including CEO Foxx and
plaintiff) were African-American. Half were female (one Chief Operating Officer
“COO” and plaintiff). When hired, plaintiff was paid more than the company’s Chief
Financial Officer (“CFO”), a white male, whose salary was $125,000 annually (Id. at
¶ 39). She was paid more than the company’s other VP, Rich Cleveland, a white
male, whose salary was $106,000 annually (doc. no. 67-1 at ¶ 50). Her salary was
substantially higher than the $70,000 salary of the former Director of HR, a white
male. It is undisputed that currently, all of the chief executives working for
defendant and its family of companies are African-American (doc. no. 67-1, at ¶ 6).
As VP of HR, plaintiff was responsible for overseeing the HR department,
recruiting and hiring new employees, enforcing company policies, and ensuring
1

Although plaintiff red-lines this as “disputed” (doc. no. 67-1 at ¶ 22), she
acknowledges this salary offer (Evans Dep. at 87). Plaintiff does not dispute that
“when she began her employment for defendant, her total compensation, at
$150,000, made her the fourth highest paid employee of the Company” (¶ 35).
2

compliance with employment and labor laws (doc. no. 67-1, ¶¶ 25-28). It is
undisputed that defendant expected plaintiff “to set an example for the entire
Company about what was acceptable and unacceptable behavior in the
workplace” (doc. no. 67-1 at ¶ 29).
Plaintiff was not a model employee. Foxx indicates that plaintiff “made
unilateral decisions and often employed a totalitarian approach to those she
supervised” and that she “was not setting a good example for employee behavior”
(doc. no. 53-1 at 7). He indicates that plaintiff “often had out of control emotional
outbursts that would be laced with curse words in front of other employees that
she supervised” (Id.). Plaintiff admits she would often “rant and rave” and vent her
frustrations in her office when she was “having issues” (Evans Dep. at 215 “I rant
and rave in my office all the time.”). 2 Other employees heard plaintiff’s cursing
and ranting. 3
Plaintiff also violated company spending policy in several ways. Instead of
obtaining the company credit card from Tom Booher in the accounting
2

Plaintiff does not dispute that she would “rant and rave” and “use curse words in
front of other employees,” but inconsistently red-lines as “disputed” the fact that
she “often had emotional outbursts” (doc. no. 67-1 at ¶¶ 69-71). Such
inconsistency creates no genuine dispute of material fact.
3

Plaintiff red-lines as “disputed” the assertion that she did not set a “good
example for employee behavior” (doc. no. 67-1 at ¶ 68). Given plaintiff’s admitted
cursing and ranting, her disagreement as to whether this set a “good example”
does not create any genuine dispute of material fact. The United States Supreme
Court has observed that courts must distinguish between evidence of disputed
material facts and mere “disputed matters of professional judgment,” i.e.
disagreement as to legal implications of those facts. Beard v. Banks, 548 U.S. 521,
529-30 (2006).
3

department, plaintiff admittedly wrote down the credit card number and directed
her secretary to use it on multiple occasions to purchase items without going
through the accounting department to obtain the card (doc. no. 67-1 at ¶¶ 76-78;
Evans Dep. at 253-54). 4 Plaintiff was authorized to make purchases up to $1,000
without getting approval from Foxx; purchases over that amount required his
approval. Plaintiff was aware of this rule (Id. at 256), but circumvented it by
directing her secretary Teresa Smith in February 2010 to split a $1,200 purchase
into two separate purchase orders, in order to avoid getting Foxx’s approval
(Smith Affidavit at ¶ 13). Plaintiff admits doing this (doc. no. 67-1 at ¶¶ 81-82). Ms.
Smith felt uncomfortable about the matter and advised her HR manager. Foxx
subsequently learned that plaintiff had directed Ms. Smith to split the invoice in
violation of company policy.
In 2010, Foxx hired a new employee (Derrick Powell) for his sales and
marketing skills as part of the executive team. Powell thereafter secured a
multi-million dollar contract with Proctor & Gamble for the company. His annual
salary was increased to $250,000. Additionally, the company hired a new “Chief
Technology Officer” (Jim Scott) at a salary of $220,000 annually.
In April of 2010, plaintiff demanded a raise (doc. no. 67-1 at ¶¶ 83-84). Her
4 Despite the affidavit of Ms. Smith indicating her knowledge of the company’s
credit card policy, plaintiff red-lines as “disputed” the assertion that the company
had “a policy that, in order to use the credit card, every employee has to go to the
Accounting Department and get the physical credit card from the Accounting
Department” (doc. no. 67-1 at ¶ 75). The Magistrate Judge aptly noted that
plaintiff’s denial of such policy “appears to be a matter of semantics” as plaintiff
admits that Foxx had instructed her that “if I needed the credit card, to ask Tom
Booher for it” (Evans Dep. at 253).
4

request was denied. According to plaintiff, Foxx told her she was not “impacting”
the company’s “bottom line” in a manner that would justify a raise (doc. no. 56 at ¶
5, citing Foxx Dep. at 145-149). It is undisputed that plaintiff did not mention race
or gender discrimination when she asked for a raise (doc. no. 67-1 at ¶¶ 151-152).
On June 3, 2010, plaintiff wore a “sleeveless top” to a business meeting. The
company had a written dress code policy which indicated that “tank/halter/tube
tops” were unacceptable attire, but that “sleeveless business tops” were
acceptable (doc. no. 51-1 at 28, policy). Foxx’s wife, whose corporate office was in
the same building, asked plaintiff after the meeting whether plaintiff was dressed
in accordance with the dress policy (doc. no. 64 at 11, n.7). Plaintiff characterizes
this as Foxx’s wife “accusing her of being out of uniform” (doc. no. 76 at 12).
Regardless, it is undisputed that plaintiff had an emotional outburst and was very
angry (doc. no. 67-1 at ¶¶ 85-86; Evans Dep. at 212, 215 indicating she was “furious
about it”). She admittedly went back to her office “cursing and ranting,” which
other employees heard (Id.; see also, doc. no. 58-1 at 95, Jamia Holloman
indicating “I heard Lisa Evans in the HR break in an obviously agitated state due to
the use of profanity. I immediately exited the training room and closed the door
behind me.”).
Later that month, Foxx met with plaintiff and told her he intended to
reassign her to the position of “General Counsel.” Plaintiff characterizes this as a
“demotion,” although defendant contends the reassignment involved no reduction
in pay or benefits. Plaintiff informed Foxx in June 2010 that she would not accept
5

the position (doc. no. 67-1 at ¶¶ 96, 119). Defendant construed this as a
resignation. It is undisputed that plaintiff was not “replaced” and that her duties
were assumed by two HR managers, Patrice Barns and Chavon Phillips, both
whom are African-American and female (Id. at ¶¶ 98-99, 125). Ms. Barns was
thereafter promoted to the position of Director of HR.
On August 20, 2010, plaintiff filed a charge of discrimination with the EEOC,
alleging that she “was paid less and received less favorable benefits that my male
and Caucasian counterparts because of my race and gender” (doc. no. 1-1). She
also claimed she was “constructively terminated from my job because of my
gender and race, and as a form of retaliation for requesting that I be paid in parity
with my male and Caucasian counterparts” (Id.). The EEOC issued a “notice of
right to sue” to plaintiff on April 11, 2011 (Id. at 2).
On April 26, 2011, plaintiff filed a federal complaint against her former
employer, alleging claims of gender and race discrimination in employment under
federal and state law, as well as claims for violation of the Equal Pay Act and for
retaliation. Plaintiff also alleged a promissory estoppel claim, which she has
voluntarily withdrawn (doc. 67 at 1).
II. Review of Objections
With respect to the court’s review of objections to a Magistrate Judge’s
Report and Recommendation, the Magistrate Judge Act, 28 U.S.C. § 631 et seq.,
provides for de novo review by the district court when a party timely files written
objections. The objections must be specific; generalized objections that do not
6

“specify the issues of contention” are not sufficient to satisfy the requirement of
specific objections. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); Howard v.
Secretary of HHS, 932 F.2d 505, 508-09 (6th Cir. 1991); and see, e.g., Holl v. Potter,
2011 WL 4337038 (S.D.Ohio) (J. Weber) (observing that general objections “are not
sufficient to preserve an issue for review and a general objection to the entirety of
the Report is the same as no objection”), aff’d by 506 Fed.Appx. 428 (6th Cir. 2012).
III. Discussion
A. Objections to the Magistrate Judge’s Proposed Findings of Fact
1. Plaintiff’s First Objection
Under the heading of “Specific Objections,” plaintiff captions her first
objection as “Failure to consider relevant, probative facts and record evidence”
(doc. no. 76 at 4). This objection to the Report and Recommendation consists only
of two generalized paragraphs that cite no specific facts, no specific case law, and
no specific evidence of record. Merely labeling an objection as “specific” does not
make it so. Plaintiff vaguely assails the Magistrate Judge’s entire statement of the
facts but ignores her own obligation to point to specific evidence in order to
withstand the defendant’s motion for summary judgment. While the court
construes the evidence and draws all reasonable inferences in favor of the
nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986), such party “may not rest upon the mere allegations or denials of [her]
pleading, but ... must set forth specific facts showing that there is a genuine issue
for trial.” Id. at 248. Merely complaining generally that the Magistrate Judge
7

purportedly did not include unspecified facts in his proposed findings of fact is not
sufficient to identify any specific issues in contention. This objection is overly
general and not sufficient to preserve any issue for review.
2. Plaintiff’s Second Objection
Next, plaintiff generally complains that “the Magistrate did not draw all
reasonable inferences in favor of plaintiff, made credibility determinations, and
weighed evidence” (doc. no. 76 at 5). She points to several “examples” where the
Magistrate Judge allegedly did not draw reasonable inferences in her favor. The
Court does not agree with plaintiff’s interpretation.
Plaintiff points to a November 2009 email from Foxx to plaintiff. Foxx
indicated that plaintiff was “doing great” and “fully meeting my expectations,” but
he also included some constructive criticism (doc. no. 55 at 24). He indicated that
he expected plaintiff to work on the following three areas: “learning to collaborate .
. . [g]etting organized . . . [and l]earning to delegate and not abdicate” (Id.). Foxx
explained that she needed to be “able to respond or present on all the critical
items to me when I ask, without having to check with your folks” (Id. emphasis in
original). He indicated “these are the things at the top of my list for you.” Plaintiff
had apparently asked him about areas she needed to work on.
In the fact section of his R&R, the Magistrate Judge observed that “as is
evident from the dose of criticism contained in the otherwise laudatory email, Foxx
was not completely pleased with all of plaintiff’s actions” (doc. no. 75 at 2). This is
a fair assessment. The email, though positive overall, did include constructive
8

criticism indicating that plaintiff needed to “work on” some significant managerial
skills. The fact that the email was not entirely positive (as plaintiff urges) is
confirmed by the email itself, where Foxx further comments: “I know you will only
hear the negative in this email.” The Magistrate Judge was not required to ignore
this. Defendant points out that the Magistrate Judge merely set forth “what was
made clear in the text of email” (doc. no. 81 at 7). Moreover, the United States
Supreme Court has explained that a court must draw reasonable inferences in
favor of the nonmoving party only “to the extent supportable by the record.” Scott
v. Harris, 550 U.S. 372, 381 (2007) (emphasis in original). The record does not
support plaintiff’s argument. This objection lacks merit. 5
As another “example,” plaintiff objects that the Magistrate Judge
“misconstrued evidence and/or made improper inferences” in concluding that
plaintiff and the defendant’s former Director of HR, Joseph Fink, “held the same
positions” (doc. no. 76 at 5, citing doc. no. 75 at 2, R&R). The premise of plaintiff’s
objection (i.e. that the Magistrate Judge concluded they held the “same
positions”) is inaccurate. In the R&R, the Magistrate Judge indicated:
Foxx and plaintiff initially discussed having plaintiff
serve as both general counsel for the Company and
being the Company’s Vice-President (VP) of HR.
Plaintiff’s deposition (Doc. 51), p. 53. The company’s
5

To the extent plaintiff attempts to attach any significance to the fact that the
November 2009 email does not mention her “ranting and raving,” defendant points
out that many of plaintiff’s tirades occurred after the email, and that in any event,
the email does indicate in diplomatic language that plaintiff needed to work on
being “collaborative” (doc. no. 81 at 8, n.2). Foxx explained that plaintiff had been
managing through “intimidation” (Foxx Dep. at 216-217).
9

previous Director of HR, a Caucasian male, had recently
passed away and Foxx was “looking to replace the
General Counsel.” Foxx affidavit (Doc. 53-1), §9.
(doc. no. 75 at 1-2). Plaintiff herself characterized their initial discussion this way
(doc. no. 51-1 at 27, Evans Letter, indicating “I want to confirm my understanding
of the role as you described it to me at our meeting. My understanding is that the
position would involve dual responsibility as both General Counsel and Vice
President of Human Resources.”). Plaintiff acknowledges that the company’s
previous Director of HR was a white male who had recently passed away (Evans
Dep. at 131). 6 The Magistrate Judge accurately quoted from Foxx’s affidavit (doc.
no. 53-1, Foxx Aff. at ¶ 11 “I was also looking to replace the General Counsel.”).
Plaintiff does not dispute that defendant was “looking to replace the General
Counsel” (doc. no. 67-1 at ¶ 14).
Contrary

to

plaintiff’s

suggestion,

the

Magistrate

Judge

did

not

“misconstrue” this evidence or draw any “improper inferences” from it. The
Magistrate Judge accurately set forth the facts, as reflected by the evidence of
record. Although plaintiff admits she “replaced” the former Director of HR (Evans
Dep. at 131), she emphasizes that she filled a new position that included additional
duties. She therefore asserts that it was not the “same” position. Foxx agrees that
plaintiff’s position was different than Fink’s (Foxx Aff. ¶ 14). Regardless, plaintiff’s
objection is that the Magistrate Judge “inferred” at page 2 of the R&R that the two
6

Although plaintiff red-lines this fact as “disputed,” she acknowledged at
deposition that the company’s previous Director of HR was a white male who had
recently passed away (Evans Dep. at 13). Plaintiff’s red-lining is inconsistent with
her own testimony and creates no genuine dispute of material fact.
10

positions were the same. He did not. Defendant accurately points this out (doc. no.
81 at 8, fn. 3 “nowhere . . . does the Magistrate Judge makes such a finding”).
Plaintiff’s objection lacks merit.
Plaintiff also contends that the Magistrate Judge accepted “Foxx’s
deposition testimony that plaintiff’s emotional outbursts were among the factors
considered in his decision to terminate Plaintiff’s employment,” but allegedly did
not “reference a single aspect of the evidence offered by Plaintiff that would
compel the opposite conclusion” (doc. no. 76 at 6). Plaintiff fails to discuss what
“evidence” purportedly would “compel the opposite conclusion.” This objection is
conclusory and undeveloped. To the extent plaintiff refers the Court to pages 6-7
in her brief in opposition to summary judgment, plaintiff may not merely “refer”
the Court to prior arguments in lieu of making a “specific objection.” Simply
restating prior arguments does not amount to a “specific objection.” See, e.g.,
Harris v. Morgan, 2012 WL 2505838 at *3 (N.D. Ohio) (an objection that merely
“summarizes what has been presented before” is not a “specific objection”); Holl,
2011 WL 4337038 (same).
Moreover, the only “evidence” that plaintiff mentions in pages 6-7 of her
prior brief is her own admission that she had been “ranting and raving” on a
“regular basis” to such an extent that the company added sound-proofing material
to her office ceiling so that her outbursts would not (in her words) “be an issue”
(doc. no. 67 at 6-7, citing Evans Dep. at 163-64, 215). In such brief, plaintiff
primarily argued that there was a “lack” of evidence that her admitted “ranting and
11

raving” was considered a “problem” by her employer. Plaintiff’s objection that the
Magistrate Judge allegedly did not “reference a single aspect of the evidence
offered by Plaintiff that would compel the opposite conclusion” therefore makes
little sense. In the R&R, the Magistrate Judge appropriately referred to evidence of
record, such as Foxx’s Affidavit, where Foxx indicated that plaintiff “often had out
of control emotional outbursts that would be laced with curse words in front of
other employees that she supervised” (doc. no. 75 at 2, citing Foxx Aff.). Plaintiff
admits ranting, and other employees heard it. This objection lacks merit.
Plaintiff further objects in a single paragraph that, with respect to plaintiff’s
violations of company spending policy, the Magistrate Judge concluded that the
“alleged misconduct occurred” but “failed to consider probative evidence
presented by [p]laintiff” (doc. no. 76 at 6-7). The Magistrate Judge could properly
conclude that the misconduct “occurred” for the simple reason that plaintiff
admitted such misconduct (Evans Dep. at 253-254, 264). Plaintiff points to no
probative evidence that the Magistrate Judge “failed to consider.” Plaintiff’s
generalized objection is conclusory and without merit.
3. Plaintiff’s Third Objection
Plaintiff’s next objection suffers from similar defects. Plaintiff contends in a
generalized two-paragraph objection that the Magistrate Judge allegedly “ignored
inconsistencies in Foxx’s testimony that could have served to undermine his
credibility in general. . .” (doc. no. 76 at 7). Plaintiff merely refers the Court to
“Pretext Section, pp. 6-12” without identifying what document she is referring to.
12

The Court observes that the R&R does not discuss pretext at pages 6-12; the R&R
discusses pretext at pages 17-18, 22-23. Plaintiff’s reference to “pages 6-12” of an
unidentified document also does not correspond to any pretext section in
plaintiff’s brief in opposition (doc. no. 67) or her motion for summary judgment
(doc. no. 55). In any event, the Court again emphasizes that simply referring the
Court to prior arguments does not amount to a “specific objection.” To the extent
plaintiff asserts in conclusory fashion that due to alleged inconsistencies in
Foxx’s testimony, the “entire case should have been submitted to a jury,” plaintiff
fails to identify what purported inconsistencies the Magistrate Judge allegedly
“ignored.” She does not cite to any specific evidence of record. This objection is
general, conclusory, and without merit.
B. Objections to the Magistrate Judge’s Proposed Conclusions of Law
Plaintiff generally describes her remaining objections as “Objections to
Legal Standards Applied in Analyzing Plaintiff’s Claims” (doc. no. 76 at 8). Despite
the caption, plaintiff does not dispute the applicable legal standard. Moreover, the
Magistrate Judge correctly set forth the standard for summary judgment (doc. no.
75 at 5-7). He correctly pointed out that the standard of review for cross-motions
for summary judgment does not differ from the standard applied when a motion is
filed by only one party to the litigation. Taft Broad. Co. v. United States, 929 F.2d
240, 248 (6th Cir. 1991) (“the court must evaluate each party's motion on its own
merits”). The Magistrate Judge correctly set forth the applicable law regarding
direct or indirect evidence, including the evidentiary burden-shifting framework for
13

claims based on indirect evidence. For the most part, plaintiff does not dispute the
applicable law (doc. no. 67-1 at ¶¶ 103-106). 7 Plaintiff’s objections under this
heading pertain to the Magistrate Judge’s analysis of the facts under the
applicable legal standard.
1. Plaintiff’s Objection Regarding Foxx’s Alleged Comments
In the R&R, the Magistrate Judge discussed plaintiff’s deposition testimony
that Foxx had allegedly made several racially-oriented comments (doc. no. 75 at 8,
fn. 8). Foxx’s alleged comments, even assuming he actually made them, and
putting admissibility issues aside, did not pertain to plaintiff or her reassignment.
The Magistrate Judge correctly pointed out that those comments, such as Foxx’s
alleged reference to a regional manager’s “lack of articulation,” would require
inferences, and thus, were not “direct evidence” of any discriminatory motivation
for plaintiff’s reassignment or alleged pay disparity. Plaintiff does not appear to
challenge this determination, but complains in conclusory fashion that the
Magistrate Judge “failed to consider” these comments when analyzing plaintiff’s
circumstantial case (doc. no. 76 at 8). As the Magistrate Judge expressly
discussed the nature and substance of the alleged comments, the record refutes
plaintiff’s suggestion that the Magistrate Judge “failed to consider” them.

7 Inexplicably, plaintiff red-lines as “disputed” the well-settled proposition that “a
reason cannot be a pretext for discrimination unless it is shown that the reason is
both false and that discrimination was the real reason” (doc. no. 67-1 at ¶ 107). See
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993) (“A reason cannot be
proved to be ‘a pretext for discrimination’ unless it is shown both that the reason
was false, and that discrimination was the real reason.”).
14

Defendant points out that the Magistrate Judge appropriately reviewed all the
evidence under the McDonnel Douglas burden-shifting framework and found that
plaintiff had failed to make out a prima facie case of race discrimination (doc. no.
81 at 10-11). Such evidence would include plaintiff’s own admission at deposition
that she had “no factual information” that Foxx reassigned her due to race (Id. at
14, citing Evans Dep. at 179).
2. Plaintiff’s Objection to Magistrate Judge’s Analysis of “Similarly Situated”
Employees
Next, plaintiff vaguely contends that “in concluding plaintiff is not similarly
situated to the comparators named in support of either her race or gender
discrimination claims, the Magistrate Judge failed to view the evidence in the light
most favorable” to plaintiff and made “improper credibility determinations” (doc.
no. 76 at 8). Plaintiff cites no specific evidence or analysis, nor does she explain
how

the

Magistrate

Judge

purportedly made

any “improper

credibility

determinations” or failed to view any particular evidence in the light most
favorable to plaintiff. Plaintiff merely asserts in conclusory fashion that “questions
of fact” should have been left for a jury to decide, without pointing to any specific
error in the Magistrate Judge’s analysis.
Defendant points out that the Magistrate Judge appropriately considered the
undisputed evidence for each of plaintiff’s alleged comparators, including their job
titles, duties, responsibilities, and alleged conduct, and then compared this
evidence to the plaintiff’s job titles, duties, responsibilities, and alleged conduct
15

(doc. no. 81 at 12, citing to the R&R’s analysis of five alleged comparators: Lowe,
Salama, Powell, Scott, and Hubert, at doc. no. 75 at 14-16 and 21-22). The
Magistrate Judge recommended that, even viewing the evidence in the light most
favorable to plaintiff, none of them had engaged in the same conduct as plaintiff
(i.e. loudly “ranting and raving” and directing an employee to violate spending
policy) and thus, were not “similarly situated” to plaintiff (doc. no. 75 at 16, 22).8
The Magistrate Judge distinguished the actions of Mr. Powell, whose subordinate
had split an invoice without his knowledge, as opposed to directing the employee
to do so (as plaintiff admittedly did). When Mr. Powell found out, he disciplined the
employee and reported it to Foxx, which plaintiff did not do (Id. at 18). As the
defendant observes, “plaintiff does not claim that any of her alleged comparators
engaged in the same of even similar conduct” (doc. no. 81 at 13). Plaintiff’s
objection to the Magistrate Judge’s analysis of similarly-situated employees is
general, conclusory, and meritless.
3. Plaintiff’s Objection to Magistrate Judge’s Analysis of Pretext
Next, plaintiff complains that the Magistrate Judge found that her remaining
“evidence” consisted of mere speculation and conjecture (doc. no. 76 at 9).
Plaintiff repeats her conclusory allegation that “questions of fact” should have
been left for a jury to decide (Id. at 10). Plaintiff then claims that the Magistrate
Judge “ignored compelling circumstantial evidence” of pretext (Id.).

8

9

This

Defendant points out that plaintiff has taken contradictory positions throughout
her brief with respect to her race and gender claims (doc. no. 81 at 11, fn. 6).
9
Defendant correctly notes that the Magistrate Judge found that plaintiff did not
16

objection lacks merit.
As “compelling evidence” of pretext, plaintiff contends that defendant had
“shifting explanations” for her pay disparity and reassignment, there were
“rumors” that plaintiff was dressing provocatively to gain Foxx’s attention, Foxx
gave her “no notice” that he was concerned about her “ranting and raving” and
violations of company spending policy, Foxx purportedly “refused to tell plaintiff
what she had done” to deserve a “demotion,” and that he waited four months to
reassign her after she violated company spending policy by splitting the invoice
(Id. at 10-15).
None of this is “compelling evidence” of pretext. More to the point, even
assuming a prima facie case, plaintiff has not pointed to admissible evidence that
would allow a jury to reasonably conclude that the company’s “legitimate
business reasons” for her reassignment (or for any alleged pay disparity with the
top few earners) were merely a pretext for discrimination. The record contradicts
plaintiff’s allegation of “shifting explanations.” Foxx’s stated reasons for plaintiff’s
reassignment have remained consistent (see doc. no. 76 at 22, defendant’s EEOC
statement, citing plaintiff’s violations of spending policy, her non-collaborative
“dictatorial” managerial style, and her outburst of profanity and other
inappropriate behavior in response to Mrs. Foxx’s query about her attire under the
dress code, i.e. plaintiff “stomped around the office” and was “using profanity and
make out a prima facie case of discrimination and did not need to proceed with
further analysis. The Magistrate Judge addressed pretext as a matter of
thoroughness. Having failed to present a prima facie case, plaintiff’s objections
regarding the analysis of pretext are of little consequence.
17

slamming doors”). Defendant also points out that Foxx has consistently explained
that Mr. Powell was given a pay increase after he secured a multi-million dollar
contract and that Foxx did not want him to leave the company “while that process
was going on” (doc. no. 81 at 16, citing Foxx Dep. at 224-25).
As for plaintiff’s suggestion that there were “rumors” that plaintiff was
dressing provocatively to gain Foxx’s attention, the Magistrate Judge correctly
noted that plaintiff had put forth only “conjecture and belief” (doc. no. 75 at 18),
which is insufficient to withstand summary judgment. Arendale v. City of
Memphis, 519 F.3d 587, 605 (6th Cir. 2008) (“In order to survive summary
judgment, plaintiff cannot rely on conjecture or conclusory allegations”);
Travelodge Hotels, Inc. v. Govan, 155 Fed.Appx. 235, 237 (6th Cir. 2005) (holding
that briefs “filled with conclusory allegations ... failed to present sufficient
evidence” to withstand summary judgment). Plaintiff acknowledges this point of
law (doc. no. 67-1 at ¶ 108). Defendant aptly points out that plaintiff admitted at
deposition that she had no facts to prove her race or gender claims (doc. no. 81 at
14, citing Evans Dep. at 179). Defendant points out that Foxx indicates he does not
even know if plaintiff was violating the dress code and that it was her inappropriate
behavior that concerned him (Id. at 17, citing Foxx Dep. at 256). Plaintiff’s
suggestion that Mrs. Foxx may have been “jealous” of her and that this may have
motivated her reassignment is nothing but speculation. Grizzell v. City of
Columbus Div. of Police, 461 F.3d 711, 724 (6th Cir. 2006) (“conjecture and
speculation are insufficient to support an inference of discrimination”); Carson v.
18

Patterson Companies, Inc., 423 Fed.Appx. 510, 514 (6th Cir. 2011) (“gut feeling”
alone will not suffice to “go to the jury” on pretext).
To the extent plaintiff complains that Foxx did not give her “notice” in the
November 2009 email that he was concerned about her “ranting and raving” or her
violations of company spending policy, defendant points out that the splitting of
the invoice occurred in February 2010 (and Foxx learned of it even later after the
information had been forwarded through at least three layers of management) and
that plaintiff’s angry outburst in response to Mrs. Foxx’s query occurred on June
3, 2010 (doc. no. 81 at 17-18). As already discussed, the November 2009 email did
indicate (albeit in diplomatic language) that plaintiff had various issues she
needed to work on, including a more “collaborative” managerial style. The record
does not reflect any “delay” that would suggest pretext. Within a week of her
inappropriate outburst, Foxx told her she was being reassigned. As for plaintiff’s
splitting of the invoice, defendant indicates that Foxx had recently learned of this
and indicates he was pondering what action to take when plaintiff behaved badly
in front of other employees on June 3, 2010 (doc. no. 81 at 20). Foxx told plaintiff
her values were not in line with the company’s values. Given her admitted
misbehavior, and given that she was responsible as VP of HR for enforcing
company policy and setting an appropriate “example,” plaintiff should need no
further explanation for her removal from her HR position.
Plaintiff cites Mulvin v. City of Sandusky, 320 F. Supp. 2d 627 (N.D. Ohio
2004) in support of her contention that she should have been expressly told that
19

her use of profanity, angry outbursts, and spending policy violations were the
reason for her reassignment (doc. no. 76 at 14). The facts of that non-binding case
are readily distinguishable. As defendant notes (doc. no. 81 at 14, fn. 9), Mulvin
was terminated after reporting his supervisor for harassing another employee.
Mulvin disputed the stated reason for his termination, whereas plaintiff admits to
“ranting and raving” and violating company spending policy. Plaintiff’s
oddly-phrased

contention

in

her

objection

that

she

had

“mitigating”

circumstances for violating company policy and not asking Foxx for permission to
exceed her spending limit (i.e. he was out of town and she was spending the
money “for the company”) is belied by her own testimony indicating that she
routinely spoke with him several times daily. Plaintiff never advised Foxx that she
had exceeded her spending limit without permission. In short, the Magistrate
Judge recommended that plaintiff had not shown any pretext. Plaintiff’s objection
to the Magistrate Judge’s analysis lacks merit.
4. Plaintiff’s Objection that the Magistrate Judge Applied an Incorrect Legal
Standard to Plaintiff’s Claim Under the Equal Pay Act
Next, plaintiff makes a generalized two-paragraph objection that the
Magistrate Judge applied an “incorrect legal standard” to the prima facie analysis
for this claim. On the contrary, the Magistrate Judge correctly indicated that the
Equal Pay Act (“EPA”) requires a plaintiff to show that “an employer pays different
wages to employees of opposite sexes for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which are performed
20

under similar working conditions” (doc. no. 75 at 25, citing 29 U.S.C. § 2061(d)(1)).
The Magistrate Judge accurately quoted the statue. He also cited binding
precedent that in determining whether jobs are “substantially equal,” a court must
engage in an “overall comparison of the work” (Id., citing Beck-Wilson v. Principi
441 F.3d 353, 359 (6th Cir. 2006) (holding that in determining whether a comparator
is appropriate, the focus is on actual job requirements and duties, rather than job
titles)). This is the same case that plaintiff generally cites (without identifying any
particular page number). The Magistrate Judge did not apply an “incorrect legal
standard.” Plaintiff’s generalized objection lacks merit.
5. Plaintiff’s Objection that the Magistrate Judge Made No Finding for
Plaintiff’s Title VII and Ohio R.C. 4112 Wage Discrimination Claims
Next, plaintiff makes a conclusory two-sentence objection that the
Magistrate Judge purportedly did not “analyze” the wage discrimination claims
under Ohio law or Title VII (doc. 76 at 16-17). The record reflects otherwise.
Specifically, the Magistrate Judge indicated that wage discrimination claims under
the Equal Pay Act and Ohio law use the same analysis (doc. no. 75 at 25). The
Magistrate Judge then quoted and relied on case law that discussed wage
discrimination claims under both the EPA and Title VII (Id. at 27). After a lengthy
discussion of the relevant facts, the Magistrate Judge concluded that “plaintiff has
not made a prima facie case under the EPA or Title VII regarding pay disparity” (Id.
at 28). Defendant points out that the analysis under the respective statutes is
essentially the same (doc. no. 81 at 23, citing Korte v. Diemer, 909 F.2d 954, 957
21

(6th Cir. 1990) (quoting Odomes v. Nucare, 653 F.2d 246 (6th Cir. 1981) (“the
analysis of a claim of unequal pay for equal work is essentially the same under the
EPA or Title VII”)). Plaintiffs objection lacks merit.
6. Plaintiff’s Objection Regarding Equal Pay Claim
Finally, plaintiff objects that the Magistrate Judge’s “findings with respect to
Plaintiff’s compensation set forth in his analysis of her state and federal Equal Pay
Act (“EPA”) claims are inconsistent with undisputed record evidence” (doc. no. 77
“addendum”). Plaintiff first rehashes her argument that her job as VP of HR was
different than the former job of Director of HR. The Magistrate Judge expressly
recognized this. He observed that both Foxx and plaintiff agreed that plaintiff
“filled a unique position” and that no one else at the company had “those same
duties.” Such finding is not “inconsistent” with any “undisputed record evidence.”
Defendant points out that the Magistrate Judge found that plaintiff did not perform
equal or substantially equal work as any other employee (doc. no. 81 at 24).
Defendant observes that the Magistrate Judge then “went above and
beyond what was required and pointed out correctly that several male members of
the ‘executive team’ were actually paid less than plaintiff and less than other
females at the company” (Id.). The Magistrate Judge accurately noted that Rich
Cleveland (white male) was a Vice-President and was paid less than plaintiff.
Again, this is not “inconsistent with undisputed record evidence.”
The Magistrate Judge considered plaintiff’s argument that she was
performing work “equal to” that performed by other later-hired executive team
22

members (such as Powell and Scott) because they managed a shared services
organization and had some budget and supervisory authority (doc. no. 75 at 26).
The Magistrate Judge observed that plaintiff was responsible for HR functions,
such as recruiting and hiring new employees, enforcing existing company
policies, and ensuring compliance with employment and labor laws, whereas
Powel’s primary duties involved sales and marketing, i.e. were revenue-generating
(Id. at 27). The Magistrate Judge further pointed out that plaintiff was more highly
compensated than the company’s CFO (Bednarchik), Vice-President (Cleveland),
and former Director of HR (Fink), all of whom were white males.
Defendant points out that when attempting to prove inequality in pay, “a
plaintiff may not ignore lower-earning employees of the opposite sex” (doc. no. 81
at 24, citing Ambrose v. Summit Polymers, Inc., 172 Fed. Appx. 103 (6th Cir. 2006)
(“a plaintiff cannot establish a prima facie case by showing only that the
highest-earning employees of the opposite sex were paid more”). That is precisely
what plaintiff has attempted to do. Defendant points out that plaintiff cannot
“cherry-pick” only a few highly paid employees for comparison. The Magistrate
Judge appropriately analyzed plaintiff’s wage disparity claims. Plaintiff objection
is without merit.
IV. Conclusion
Upon a de novo review of the record, especially in light of plaintiff’s
objections, the Court finds that the Magistrate Judge has accurately set forth the
controlling principles of law and properly applied them to the particular facts of
23

this case. The Court agrees with the Magistrate Judge’s recommendations and
hereby adopts

and

incorporates

by

reference

herein,

the

Report

and

Recommendation of the United States Magistrate Judge (doc. no. 75).
V. Oral Argument Not Warranted
Local Rule 7.1(b)(2) provides that courts have discretion whether to grant
requests for oral argument. The parties have extensively briefed the relevant
issues. The Court finds that oral argument is not warranted. Himes v. U.S., 645
F.3d 771, 783-84 (6th Cir. 2011); Yamaha Corp. of Am. v. Stonecipher’s Baldwin
Pianos & Organs, 975 F.2d 300, 301-02 (6th Cir. 1992); Schentur v. U.S., 4 F.3d 994,
1993 WL 330640 at *15 (6th Cir. (Ohio)) (observing that district courts may
dispense with oral argument on motions for any number of sound judicial
reasons).
Accordingly, the Court OVERRULES the plaintiff=s AObjections@ (doc. no.
76); GRANTS the defendant’s “Motion for Summary Judgment” (doc. no. 53); and
DENIES the plaintiff’s “Motion for Summary Judgment” (doc. no. 55). This case is
DISMISSED and TERMINATED on the docket of this Court.

IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court

24