Booker v. Garden Manor
Filing
33
OPINION AND ORDER granting 23 Defendant's Motion for Summary Judgment. This matter is closed on the Court's docket. Signed by Judge S Arthur Spiegel on 11/1/2012. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ANNIE BOOKER,
:
:
:
:
:
:
:
:
:
:
:
Plaintiff,
v.
GARDEN MANOR EXTENDED CARE
CENTER
NO. 1:11-CV-660
OPINION & ORDER
Defendant.
This matter is before the Court on Defendant’s Motion
for
Summary
Judgment
(doc.
23),
Plaintiff’s
Response
in
Opposition (doc. 26), and Defendant’s Reply in Support (doc.
31).
The Court held a hearing on the motion on October 9, 2012.
For the following reasons, the Court GRANTS Defendant’s motion
(doc. 23).
I.
BACKGROUND
Plaintiff
was
an
attendant
at
Defendant’s
assisted
living unit from 2006 until her employment was terminated on
November 8, 2010, after an investigation resulted in Defendant
concluding
facility.
night
that
Plaintiff
had
been
stealing
food
from
its
At the time of her termination, Plaintiff worked the
shift
approximately
two
nights
1
per
week.
In
early
November 2010, Defendant’s Director of Human Resources, Annette
Dynes,
heard
from
an
employee
that
another
night-shift
attendant, Elizabeth Edwards, had slept during her shift in the
bedroom of a recently-deceased resident.
conduct
an
investigation
and
started
Ms. Dynes decided to
by
interviewing
night-shift employees about the alleged incident.
other
When one of
those employees stated that Ms. Edwards had slept for two hours
in that deceased resident’s room and that Plaintiff “would lie
around and rest for hours at a time during her shift,” Ms. Dynes
decided to broaden the scope of her investigation because she
was
concerned
about
the
possibility
of
multiple
employees
engaging in misconduct during the night shifts.
As
part
of
her
five-day
investigation,
interviewed eight night-shift employees.
Ms.
Dynes
Two of those employees
reported that Plaintiff and another employee, one Lavel Mathers,
repeatedly stole significant amounts of food from Defendant’s
kitchen.
Ms. Dynes shared those accusations with Defendant’s
Administrator, Shane Craycraft, who, based on the accusations,
decided
to
suspend
investigation.
occurred
on
Plaintiff’s
employment
pending
a
theft
During the course of the suspension meeting that
November
5,
2010,
at
which
it
was
conveyed
to
Plaintiff the reasons for her suspension, Plaintiff did not deny
ever stealing food, but she was never directly asked if she had
2
done so.
Ms. Dynes then contacted the local police department,
who assisted with the theft investigation.
According to the
results of the investigation, Plaintiff had been seen on several
occasions
over
the
previous
twelve
months
stealing
large
quantities of food from Defendant’s kitchen and loading them
into
her
co-worker’s
Plaintiff’s
demeanor
van.
Based
during
the
on
the
investigation
suspension
meeting,
and
Mr.
Craycraft decided to terminate Plaintiff's employment, which he
did at a meeting with Plaintiff on November 8, 2010.
In total, four employees were terminated as a result
of
Ms.
Dynes’
night-shift
investigation 1:
Plaintiff,
who
is
African American, was terminated based on the allegations of
stealing;
Ms.
Edwards,
who
is
Caucasian,
was
terminated
for
sleeping on duty; Charise Hall, who is African American, was
terminated for negligent or willful inattention to work based on
reports that, among other things, she refused to help a resident
in breathing distress until she finished taking a test online;
and Yvonne Myers, who is Caucasian, was terminated for failing
to adequately supervise the night-shift employees.
Plaintiff then filed the instant suit, alleging that
she was terminated on the basis of her race, in violation of
Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §1987.
1
A fifth, Ms. Mathers, would have been terminated but she
resigned before her termination meeting.
3
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
also,
Inc.,
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
whether
the
the
instant
motion,
evidence
“this
presents
Court
a
must
sufficient
disagreement to require submission to a jury or whether it is so
one-sided
that
one
party
must
prevail
as
a
matter
of
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
4
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
Barnhart
v.
Pickrel,
Shaeffer
&
element
Ebeling
of
Co.
its
case.
L.P.A.,
12
See
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
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
5
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
present
(6th
Cir.
"significant
1994).
Accordingly,
probative
the
evidence"
non-movant
must
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
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
6
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
Under the familiar McDonnell Douglas burden-shifting
framework for single-motive discrimination claims, a Title VII
plaintiff utilizing circumstantial evidence, as Plaintiff does
here, must first make out a prima facie case of discrimination
by showing 1) that she was a member 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 the protected class or that similarly situated non-
7
protected
employees
were
treated
more
favorably.
Geiger
v.
Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009); Minadeo v. ICI
Paints, 398 F.3d 751, 764 (6th Cir. 2005)(internal citations
omitted).
of
After the plaintiff has made out a prima facie case
discrimination,
the
employer
must
present
nondiscriminatory reason for the termination.
Co.,
580
f.3d
394,
400
(6th
Cir.
a
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 pretext.
Id.
Here, there is no dispute that Plaintiff is a member
of a protected class and that she was discharged.
Defendant,
however, argues 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 (doc. 23).
Defendant is correct.
Fatal to Plaintiff’s case is
the undisputed fact that four employees were terminated as a
result of Ms. Dynes’ investigation into allegations of wrongdoing on the night shift.
two are Caucasian.
Two of them are African American, and
This fact completely undermines Plaintiff’s
prima facie case because she cannot show that she was treated
differently
or
less
favorably
than
8
a
similarly-situated
non-
protected employee.
Plaintiff did not address this fatal fact either in
her response to Defendant’s motion or at the hearing.
Instead,
Plaintiff contends that she has set forth a comparator in Pennie
Montgomery.
Pennie Montgomery, also an attendant at Defendant’s
long-term care facility, is Caucasian.
Ms.
Montgomery
favorably
than
was
investigated
Plaintiff
was
for
during
Plaintiff contends that
theft
her
and
treated
more
investigation,
thus
satisfying the fourth prong of the prima facie case.
Plaintiff points to two incidents that, she argues,
put
her
and
Ms.
Montgomery
in
the
same
category
as
being
employees accused of theft: first, Plaintiff claims that Ms.
Montgomery was accused of theft by a housekeeper named Debbie
Begley, and, second, she claims Ms. Montgomery was accused of
theft by Lavel Mathers.
As to the first claim, Plaintiff points
to an affidavit of Elizabeth Edwards, another former employee of
Defendant, in which she states that some months before Plaintiff
was fired, Ms. Edwards brought a box of food to work to give to
Ms. Montgomery.
Ms. Edwards states that Ms. Montgomery “had
taken food from the kitchen and added to the box of food that
[she] brought in.”
Ms. Edwards further states that she and Ms.
Montgomery were summoned to Ms. Dynes’ office the day after she
brought the box of food to work, and Ms. Dynes told her that a
9
housekeeper had seen Ms. Montgomery taking a box of food.
Ms.
Edwards claims that she lied at that time when she did not tell
Ms. Dynes that Ms. Montgomery stole food and added it to the box
Ms. Edwards had brought in for Ms. Montgomery. She claims she
did not tell Ms. Dynes about the stolen food because she was
scared of Ms. Montgomery.
Ms. Dynes took no disciplinary action
against
Ms.
and
written
notes
Montgomery,
from
that
there
are
investigation
no
that
contemporaneously
are
part
of
the
record.
First, this incident does not address or erase the
fact that two non-protected employees were terminated for wrongdoing
uncovered
Plaintiff’s
during
the
wrong-doing.
same
Neither
investigation
does
this
that
uncovered
incident
support
Plaintiff’s argument that she was treated differently than Ms.
Montgomery after they were both accused of theft.
As an initial
matter, Defendant argues that the Court should not even consider
the assertion made by Ms. Edwards that a housekeeper accused Ms.
Montgomery
of
stealing
Defendant is correct.
the
truth
accused
by
of
an
the
food
because
it
is
double
hearsay.
Plaintiff seeks to use that statement for
matter
employee
asserted,
of
theft,
that
and
Ms.
it
Montgomery
was
a
was
statement
allegedly made by the housekeeper to Ms. Dynes and then repeated
in Ms. Edwards’ affidavit.
As such, it is double hearsay and
10
thus inadmissible.
See Alexander v. Caresource, 576 F.3d 551,
558 (6th Cir. 2009); Fed. R. Civ. P. 56.
As
Defendant
notes,
the
only
admissible
evidence
regarding this incident where Plaintiff contends Ms. Montgomery
was accused of stealing by a fellow employee are the statements
by the housekeeper herself and Ms. Dynes—both of whom deny that
Ms. Montgomery was ever accused of theft.
At the hearing and in
her response to Defendant’s motion, Plaintiff pointed to notes
of an interview Ms. Dynes conducted of Ms. Montgomery on April
23, 2012, in which Ms. Dynes noted that she asked Ms. Montgomery
if she had ever stolen food from Defendant.
Plaintiff claims
that this is an admission that Ms. Montgomery had been accused
of theft, arguing that there would be no other reason to ask
that question.
However, as Defendant notes, Ms. Dynes conducted
that investigation because of the statements set forth in Ms.
Edwards’ affidavit, where Ms. Edwards accused Ms. Montgomery of
stealing.
Ms.
Edwards
made
that
accusation
after
this
litigation commenced and months after her own employment was
terminated.
She even admits in the statement that while she was
still an employee she did not accuse Ms. Montgomery of stealing
because she was scared of her.
Therefore, Ms. Dynes’ notes from
the
conducted
investigation
that
she
resulting
from
the
accusations set forth in Ms. Edwards’ affidavit do not in any
11
way
support
Plaintiff’s
assertion
that
Ms.
Montgomery
was
accused of theft by an employee and treated more favorably than
Plaintiff.
With respect to the second incident Plaintiff relies
on, that Ms. Montgomery was accused of theft by Ms. Mathers, the
result is the same.
never
accused
employed
by
Ms.
The record evidence shows that Ms. Mathers
Montgomery
Defendant,
investigation
for
of
even
theft.
theft
while
Ms.
while
she
Mathers’
Ms.
Mathers
herself
was
accusation
was
under
came
only
after she no longer worked for Defendant.
Despite the fact that
the
former
accusation
came
from
a
disgruntled
employee,
Ms.
Dynes nevertheless conducted an investigation and enlisted the
help of the local police.
Neither Ms. Dynes nor the police
found evidence to substantiate Ms. Mathers’ accusation against
Ms. Montgomery.
And, in any event, as noted, that accusation
was made at a time when Ms. Mathers was no longer an employee
and months after Plaintiff was fired.
As such, Ms. Mathers’
accusation is not evidence showing that both Plaintiff and Ms.
Montgomery were accused of theft by employees.
Simply
put,
according
to
the
undisputed
facts
presented, Ms. Montgomery, unlike Plaintiff, was not accused by
any of Defendant’s employees of theft.
that
Ms.
Montgomery
cannot
be
12
a
That fact alone means
comparator
for
purposes
of
Plaintiff’s prima facie case, even if Plaintiff could somehow
overcome
the
fact
that
two
non-protected
employees
were
terminated as a result of the same investigation that resulted
in Plaintiff’s termination.
In
sum,
Plaintiff
has
not
presented,
as
she
is
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 discrimination.
339-340.
See Moore, 8 F.3d at
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.
Even
satisfied
the
if
the
prima
Court
were
facie
to
find
that
requirements,
Plaintiff
Plaintiff
had
would
nonetheless not be successful in her attempt to overcome summary
judgment because Plaintiff’s alleged thievery was a legitimate
non-discriminatory reason for her termination, and Plaintiff has
failed to adduce evidence from which a reasonable jury could
find
that
that
reason
was
13
merely
pretext
for
race
discrimination.
A
plaintiff
can
show
pretext
in
three
ways.
See
Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083–84
(6th
Cir.
1994).
First,
the
plaintiff
can
proffered reasons had no basis in fact.
1083–84.
show
that
the
Manzer, 29 F.3d at
This first type of showing consists of evidence that
the proffered basis for the plaintiff’s adverse treatment never
happened,
i.e.,
that
they
were
false.
Id.
Second,
the
plaintiff can show that the reasons given by the employer were
insufficient to motivate discharge.
ordinarily
consists
individuals
were
of
more
evidence
Id.
that
favorably
This second showing
other
treated.
similarly-situated
Id.
Third,
the
plaintiff can show that the defendant’s proffered reason did not
actually motivate the adverse action.
this
third
type
of
showing,
the
Sixth
Circuit
has
In order to make
plaintiff
additional evidence of discrimination.
The
Id.
must
introduce
Id.
cautioned
that
courts
should
“avoid formalism” in the application of the Manzer test, “lest
one lose the forest for the trees."
F.3d
394,
400,
n.
4
(6th
Cir.
Chen v. Dow Chem. Co., 580
2009).
Pretext,
the
court
observed, “is a commonsense inquiry: did the employer fire the
employee for the stated reason or not?
This requires a court to
ask whether the plaintiff has produced evidence that casts doubt
14
on the employer’s explanation, and, if so, how strong it is.”
Id.
Plaintiff does not mention any of the Manzer prongs in
her response to Defendant’s motion, but the Court finds that she
has failed to set forth evidence that would satisfy any of them.
First,
there
is
nothing
in
the
record
that
would
show
that
Plaintiff’s co-workers did not actually accuse her of stealing
or that Ms. Dynes did not actually conduct an investigation that
revealed wrong-doing on the night-shift.
Second, as discussed
above, Plaintiff has adduced no evidence that other similarlysituated
employees
were
treated
more
favorably.
On
the
contrary, the other similarly-situated employees were all either
fired
or
resigned,
including
two
in
a
non-protected
class.
Third, Plaintiff has adduced no evidence at all that shows that
Defendant’s proferred reason for her termination—that she stole
from Defendant-did not actually motivate Defendant’s decision to
terminate her employment.
In short, nothing in the record satisfies the standard
set
forth
in
Manzer
or
otherwise
casts
doubt
reasons for terminating Plaintiff’s employment.
on
Defendant’s
Plaintiff has
simply failed to present evidence from which a reasonable jury
could
conclude
Plaintiff’s
that
termination
Defendant’s
were
15
proffered
pretext
for
reasons
for
impermissible
discrimination.
IV.
Conclusion
Because Plaintiff has failed to meet her prima facie
case,
and,
even
if
she
had,
she
has
failed
to
show
that
Defendant’s decision to terminate her employment was pretext for
race discrimination, Defendant is entitled to summary judgment.
See Barnhart v. Peckrel, Schaeffer & Ebeling Co., 12 F.3d 1382,
1395 (6th Cir. 1993).
The Court therefore GRANTS Defendant’s
motion
this
(doc.
23),
and
matter
is
closed
on
the
Court’s
docket.
SO ORDERED.
Dated:
November 1, 2012
/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
16
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