Cousins v. Chipotle Mexican Grill

Filing 34

OPINION AND ORDER denying 25 Defendant's Motion for Summary Judgment; denying as moot 30 Defendant's Motion to Strike Paragraphs 4, 6, 7, 8 & 9 from the Declaration of Tonya Whitfield. This matter is set for a final pretrial conference on 10/2/2013 at 2:00 PM, with three-day jury trial to commence on 11/12/2013 at 9:30 AM. Signed by Judge S Arthur Spiegel on 8/8/2013. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KATONDRA COUSINS,

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Plaintiff,

v.

CHIPOTLE MEXICAN GRILL,
Defendant.

NO. 1:12-CV-292
OPINION & ORDER

This matter is before the Court on Defendant’s Motion
for

Summary

(docs.

27

Judgment
&

Paragraphs

29),

4,

6,

(doc.

as
7,

25)
as

well
8

&

and

Defendant’s

9

from

the

the

responsive
Motion

memoranda
to

Declaration

Strike

of

Tonya

Whitfield (doc. 30) and the responsive memoranda (docs. 32 &
33).

Because the Court finds that genuine issues of material

fact

exist

as

impermissibly
retaliation,

to

whether

terminated
the

Court

judgment (doc. 25).

Plaintiff’s

on

the

DENIES

basis

Defendant’s

employment
of

motion

was

race

and/or

for

summary

The Motion to Strike is DENIED as moot for

the reasons discussed herein.
I.

BACKGROUND
Plaintiff,

an

African

American

woman,

was

hired

at

Defendant’s Cincinnati Fountain Square store on August 3, 2010
1

to work as both a crew member and on the restaurant’s fax order
line.

A

Caucasian

general

manager

woman,

during

Stephanie

Plaintiff’s

Ochoa,

was

employment.

Defendant’s
According

to

Plaintiff and other employees, Ochoa frequently made derogatory
comments

to

about

For

Plaintiff.

and

African

example,

American

several

employees,

African

including

American

employees,

including Plaintiff, were watching Cincinnati’s Martin Luther
King Day parade through the store’s window before the store
opened.

Ochoa loudly yelled at them, “Get your black asses back

to work.”
when

Apparently Ochoa frequently used the term “black ass”

referring

to

Plaintiff,

as

in

“What’s

your

black

ass

doing?”
Ochoa also allegedly made comments such as, “I know why there’s
so many black people in here around this time. I know it’s
because the welfare and child support checks are out.”

And, in

reference to Plaintiff, Ochoa allegedly said to other employees,
“Have you ever seen someone with such dark skin?”
In
other

addition,

employees

Americans.

For

who

Ochoa

made

example,

allegedly

derogatory
the

failed

comments

Caucasian

to

discipline

about

kitchen

African

manager

in

training told Plaintiff, “When you see black people come through
the line, put chicken on the grill,” and he told Plaintiff that
he didn’t want to close the store because he was afraid a black

2

man would rob him.

He was allegedly not disciplined for those

comments.
Following company procedure, Plaintiff met with Ochoa
and requested a transfer to a different location, saying that
she

could

no

longer

tolerate

the

racist

treatment

she

continually received at the hands of Ochoa, the kitchen manager
in training and others.

Ochoa allegedly ignored Plaintiff’s

request to transfer and said that it was all “just fun and
games” and that Plaintiff shouldn’t take it seriously.
Eight

days

later,

Ochoa

terminated

Plaintiff’s

employment.
Plaintiff then filed the instant action, claiming that
her

employment

was

terminated

on

the

basis

of

her

race,

in

violation of both federal and state laws, and/or that it was
terminated as retaliation for her complaining about the racist
atmosphere of the restaurant, also in violation of both state
and federal laws.
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.”

3

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 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

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).

4

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
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).

Accordingly, the non-movant must

5

present

"significant

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
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.

6

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
A.

Plaintiff’s Race Discrimination Claims

A
evidence

Title

must

VII

first

plaintiff
make

out

utilizing
a

prima

circumstantial
facie

case

of

discrimination, typically 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

similarly

someone

situated

outside

of

non-protected

the

protected

employees

were

class

or

that

treated

more

favorably.1

Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th

Cir. 2013).

After the plaintiff has made out a prima facie case

1

State-law-based race discrimination claims are generally
construed in the same manner as those grounded in federal laws
because Ohio anti-discrimination 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 and decisions with respect to Plaintiff’s
federal Title VII claims apply with equal force to her statebased claims.
7

of

discrimination,

the

employer

must

present

nondiscriminatory reason for the termination.

a

legitimate,

Id.

The burden

of production then shifts back to the plaintiff to show that the
employer's

proffered

nondiscriminatory

reason

was

pretextual.

Id.
Here, Defendant argues that Plaintiff cannot meet her
prima facie case because she fails to meet the fourth prong:
Defendant

contends

that

Plaintiff

failed

to

adduce

evidence

showing that she was either replaced by someone outside the
protected class or that someone outside the protected class was
treated

more

favorably

than

she.

The

Court

disagrees

with

Defendant’s assessment of the record.
The prima facie requirement for making a Title VII
claim “is not onerous,” Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981) and poses “a burden easily
met.” Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987). The
prima

facie

phase

“merely

serves

to

raise

a

rebuttable

presumption of discrimination by ‘eliminat[ing] the most common
nondiscriminatory reasons for the [employer's treatment of the
plaintiff].’” Hollins v. Atlantic Co., 188 F.3d 652, 659 (6th
Cir. 1999)(quoting Burdine, 450 U.S. at 253-54). It is “only the
first stage of proof in a Title VII case,” and its purpose is
simply to “force [a] defendant to proceed with its case.” EEOC

8

v. Avery Dennison Corp., 104 F.3d 858, 861-62 (6th Cir. 1997).
Plaintiff
could

reasonably

here

has

conclude

adduced

that

outside the protected class.

she

evidence
was

from

replaced

which
by

one

someone

Specifically, Plaintiff points the

Court to the hiring of Katherine Avalos, a Caucasian woman hired
by Defendant on July 8, 2011 and notes that the decision to
terminate

Plaintiff’s

employment

was

made

on

July

6,

2011.

Defendant counters that Plaintiff was not actually terminated
until July 11, 2011, thus, it contends, Avalos could not have
been

Plaintiff’s

replacement.

The

Court

finds

this

splitting to run counter to the spirit of Burdine.
indisputably

shows

that

Ochoa

memorialized

her

terminate Plaintiff’s employment on July 6, 2011.

hair-

The record
decision

to

Although she

did not present that decision to Plaintiff until July 11, it is
not unreasonable to infer that Ochoa’s decision to hire Avalos
on July 8 was a decision to fill Plaintiff’s position, which
Ochoa knew would be open as soon as the termination formalities
were complete.

For the purposes of meeting the low burden of

the prima facie requirements, this is sufficient in this case.
Defendant offers as its nondiscriminatory reason for
Plaintiff’s
discount

termination

for

permission.

her

that

mother

Plaintiff

without

first

used

her

securing

employee
Ochoa’s

The burden thus shifts to Plaintiff to show that

9

this reason was merely pretext.
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

proffered reasons had no basis in fact.
1083–84.

can

show

that

the

Manzer, 29 F.3d at

This first type of showing consists of evidence that

the proffered bases 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.

Id.

This second showing

ordinarily consists of evidence that other similarly-situated
individuals

were

more

favorably

treated.

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?

10

This requires a court to

ask whether the plaintiff has produced evidence that casts doubt
on the employer’s explanation, and, if so, how strong it is.”
Id.
Here,

Plaintiff

argues

that

Defendant’s

reason

for

terminating Plaintiff’s employment was pretext for race-based
discrimination because Defendant changed its reasons for firing
Plaintiff during the course of this litigation, and Defendant
treated

other

similarly-situated

treated

Plaintiff.

employees

Specifically,

better

Plaintiff

notes

than
that

it
the

termination paperwork she received includes the statement that
“employee discount’s [sic] are only for employees that work here
and you are not aloud [sic] to use it on your friends at anytime
[sic].”2

Plaintiff then notes that Ochoa testified that she

routinely

approved

the

use

of

the

employee

discount

for

nonemployees and that subsequent to that testimony, Defendant
now asserts that Plaintiff’s employment was terminated because
she

failed

to

secure

Ochoa’s

permission

before

using

her

reasons

are

not

employee discount for her mother.
Defendant
contradictory

and

contends
that

“the

that

these

underlying

violation

remains

the

same—by not asking permission, Cousins violated the Employee 50%

2

Plaintiff used her discount for her mother’s order, and the
record supports the conclusion that she did not first secure
Ochoa’s permission.
11

Off Discount” (doc. 29).

Defendant’s position, however, very

much loses the forest for the trees.

The record unequivocally

supports the conclusion that the written reason for Plaintiff’s
termination (that she used a discount for a nonemployee, which
is something that is never permitted) was false at the time it
was written.
employee

Ochoa and others repeatedly testified that the

discount

was

routinely

used

for

nonemployees.

Defendant’s post-hoc attempt to recast Plaintiff’s termination
as “the underlying violation” of not first asking permission is,
indeed,

contradictory

termination.

to

the

written

explanation

for

her

If the real reason for Plaintiff’s termination was

her failure to first secure Ochoa’s permission before using her
employee discount, that is what should have been written.

The

fact that it was not, and that a false reason was given, is
enough

to

cast

doubt

on

the

legitimacy

explanation for Plaintiff’s termination.
clear

from

the

record

whether

the

of

Defendant’s

Given that it is not
requirement

to

secure

permission ahead of time was, indeed, a requirement, or whether
it was enough to get approval after the fact, and given that it
is also unclear from the record whether the policy—whatever it
actually was—was uniformly applied, the doubt is strong enough
to show pretext here.
As noted by the McDonnell Douglas court, “The language

12

of

Title

equality

VII
of

makes

employment

discriminatory
racially

plain

job

minority citizens.”
omitted).
Duke

purpose

opportunities

practices

stratified

the

and

of
and

devices

environments

Congress
to

eliminate

which

to

the

to

have

assure
those

fostered

disadvantage

of

411 U.S. 792, 800 (1973)(internal citations

The Supreme Court previously recognized in Griggs v.

Power

Co.,

401

U.S.

424,

429

(1971)

that

“[w]hat

is

required by Congress is the removal of artificial, arbitrary,
and unnecessary barriers to employment when the barriers operate
invidiously to discriminate on the basis of racial or other
impermissible classification.” Id. at 430-431.
before

the

Court

is

sufficient

for

the

Here, the record

Court

to

reach

the

conclusion that Plaintiff’s race discrimination claims should
survive summary judgment.
events

put

conclusion

forth
that

by

she

If a jury believes the version of

Plaintiff,

suffered

it

would

invidious

be

a

reasonable

discrimination

on

the

basis of her race, which is exactly what Title VII proscribes.
B.

Plaintiff’s Retaliation Claims

In addition to prohibiting employment discrimination
on the basis of sex, race, color, religion or national origin,
Title VII makes it unlawful for an employer to retaliate against
an employee because the employee either opposed any practice
that Title VII made unlawful or filed a charge under Title VII.

13

42 U.S.C. § 2000e-3(a); Burlington N. & Santa Fe Ry. Co. v.
White,

548

evidence,

U.S.
and

Plaintiff's

(2006).

In

is

none

56

presented

here,

retaliation

framework.
2002).

53,

claim

under

the

absence
the

the

of

direct

Court

reviews

McDonnell

Douglas

Weigel v. Baptist Hosp., 302 F.3d 367, 381 (6th Cir.

To

establish

her

prima

facie

case

of

retaliation,

Plaintiff must show that: 1) she engaged in activity protected
by Title VII; 2) Defendant knew that she exercised such rights;
3) Defendant took retaliatory action that a reasonable employee
would have found materially adverse; and 4) there was a causal
connection
action.

between

the

protected

activity

and

the

adverse

Arendale v. City of Memphis, 519 F.3d 587, 606 (6th

Cir. 2008); Burlington Northern, 548 U.S. 53, 68.

As above, if

Plaintiff is successful in demonstrating her prima facie case,
the

burden

shifts

to

Defendant

to

produce

evidence

legitimate, nondiscriminatory reason for its actions.

of

a

EEOC v.

Avery Dennison Corp., 104 F.3d 858, 862 (6th Cir. 1997).

If

Defendant satisfies this burden, Plaintiff must then demonstrate
that the legitimate reason offered by Defendant was a pretext
designed to mask retaliation.

Id.

at 862.

Plaintiff’s retaliation claims easily survive summary
judgment.
a

Plaintiff’s meeting with Ochoa at which she requested

transfer

because

of

the

14

ongoing

race-based

comments

constitutes protected activity.

See, e.g., Trujillo v. Henniges

Automotive Sealing Sys. North America, 495 Fed. Appx. 651, 655
(6th Cir. 2012).

And there is no dispute either that Defendant

knew about the activity or that her termination was an adverse
employment action.
With respect to the final prong, Plaintiff must have
produced sufficient evidence to create an inference that the
adverse action would not have been taken had she not engaged in
the protected activity.
Center

v.

See Univ. of Texas Southwestern Medical

Nassar,

133

S.Ct.

claims

must

be

retaliation

2517,

proved

2533

(2013)(“Title

according

to

VII

traditional

principles of but-for causation, not the lessened causation test
stated in § 2000e–2(m). This requires proof that the unlawful
retaliation

would

not

have

occurred

in

the

absence

alleged wrongful action or actions of the employer.”).

of

the

Temporal

proximity between the protected activity and the adverse action
is not by itself always dispositive of the issue of causation,
but it “always plays a role.”

Fuhr v. Hazel Park Sch. Dist.,

710 F.3d 668, 675 (6th Cir. 2013).

Here, only eight days passed

between

Ochoa

Plaintiff’s

memorializing
employment.

of

meeting
her

with

decision

to

and

Ochoa’s

terminate

written

Plaintiff’s

Under the circumstances present here, that temporal

proximity is sufficient by itself to meet the causation prong of

15

Plaintiff’s prima facie case.
Co.,

516

F.3d

516,

525

See Mickey v. Zeidler Tool & Die

(6th

Cir.

2008)(“Where

an

adverse

employment action occurs very close in time after an employer
learns of a protected activity, such temporal proximity between
the events is significant enough to constitute evidence of a
causal connection for the purposes of satisfying a prima facie
case of retaliation.”).
Finally,
evidence

as

sufficient

Defendant’s

proffered

discussed
to

above,

demonstrate

reason

for

Plaintiff

has

at

stage

this

Plaintiff’s

adduced
that

termination

was

pretextual, whether for race-based animus or as a retaliatory
move

for

complaining

about

the

race-based

comments

made

by

summary

judgment

as

to

management.
Defendant’s

motion

for

Plaintiff’s retaliation claims is thus DENIED.
c.

Defendant’s Motion to Strike

In its analysis of the record and the motions before
it, the Court did not rely on the contested passages of the
deposition that Defendant seeks to strike (doc. 30).
the Court denies the motion as moot.

Therefore,

Should this case proceed

to trial, the Court will rule on the admissibility of evidence
in due course.
IV.

Conclusion

16

Plaintiff has adduced sufficient evidence to meet her
prima facie case both as to her race-based discrimination claims
and as to her retaliation claims and to show that Defendant’s
proffered reason for her termination was pretextual.

Therefore,

Defendant’s motion for summary judgment is DENIED (doc. 25).
This matter is set for a final pretrial conference on October 2,
2013 at 2:00 P.M., with a three-day jury trial to commence on
November 12, 2013 at 9:30 A.M.

SO ORDERED.
Dated:

August 8, 2013

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

17