Crawford v. Chipotle Mexican Grill

Filing 34

REPORT AND RECOMMENDATIONS re 26 Defendant's Motion for Summary Judgment. IT IS RECOMMENDED that the Defendant's Motion for Summary Judgment 26 be GRANTED. Plaintiff's complaint should be dismissed with prejudice, and this case be CLOSED. Objections to R&R due by 10/10/2017. Signed by Magistrate Judge Stephanie K. Bowman on 9/26/2017. (km)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ALASHAE CRAWFORD,

Case No. 1:15-cv-694

Plaintiff,

Dlott, J.
Bowman, M.J.

v.

CHIPOTLE MEXICAN GRILL,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, through counsel, filed this action against her former employer, Chipotle
Mexican Grill (“Chipotle”). Plaintiff’s complaint alleges that she was wrongfully
terminated from Chipotle on March 17, 2014. Plaintiff is an African American female. In
Count I, she alleges that her termination was in retaliation for her protected conduct,
namely, her complaints about racial discrimination toward another African American
employee. (Doc. 1 at ¶`14).

In Count II, Plaintiff alleges that the Defendant

discriminated against her because of her race, and that similarly-situated employees of
other races were not terminated. (Doc. 1 at ¶16).
On March 14, 2016, Senior U.S. District Judge Sandra Beckwith denied
Chipotle’s motion to dismiss Count II for failure to state a claim, finding that Plaintiff’s
allegations, “while somewhat spare,” were sufficient under notice pleading standards to
proceed to discovery. (Doc. 10).
Following the conclusion of discovery, Chipotle moved for summary judgment.
Plaintiff has filed a response in opposition, to which Defendant has filed a reply. (Docs.
26, 29, 33). Pursuant to local practice, this matter has been referred to the undersigned
magistrate judge for a report and recommendation on the Defendant’s motion for

summary judgment. For the reasons set forth herein, Defendant’s motion should be
GRANTED.
I.

Summary Judgment Standard of Review

In a motion for summary judgment, a court “must view the facts and any
inferences that can be drawn from those facts ... in the light most favorable to the
nonmoving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.
2007) (internal quotation marks omitted). “Summary judgment is only 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.’” Id. (quoting Fed. R. Civ.
P. 56(c))(internal quotation marks omitted). “Weighing of the evidence or making
credibility determinations are prohibited at summary judgment-rather, all facts must be
viewed in the light most favorable to the non-moving party.” Id.
As the moving party, Chipotle has the burden of showing an absence of evidence
to support the Plaintiff’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once a moving party has met its burden of production, the non-moving party cannot rest
on her pleadings, but must present significant probative evidence in support of her
complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. at 248-49. The mere existence of a scintilla of evidence to support the nonmoving party’s position will be insufficient; the evidence must be sufficient for a jury to
reasonably find in favor of the nonmoving party. Id. at 252.
In reviewing the evidence in the context of a motion for summary judgment,
courts generally cannot consider inadmissible hearsay.

See, e.g., Alpert v. United

States, 481 F.3d 404, 409 (6th Cir. 2007); North American Specialty Ins. Co. v. Myers,
2

111 F.3d 1273, 1283 (6th Cir. 1997). However, the Federal Rules of Evidence contain
many exceptions to the hearsay rule. For example, deposition testimony by a party’s
officer, director, managing agent or designee, to the extent that it is “binding” on the
organization itself, is not considered hearsay. Kelly Serv., Inc. v. Creative Harbor, LLC,
846 F.3d 857, 867 (6th Cir. 2017).

In addition, under Rule 56(c), a party may cite to

deposition testimony, discovery responses, affidavits, or other documents or materials
to establish the absence or presence of a genuine dispute of material fact, or to show
that the adverse party cannot produce admissible evidence, notwithstanding any
hearsay issues, so long as the same evidence could be presented in an admissible form
at trial. 1 If a party fails to properly support an assertion of fact or fails to properly
address an opposing party’s assertion of fact as required by Rule 56(c), the court may
allow an additional opportunity to properly support or address the fact, or the court may
consider the fact undisputed for purposes of the motion. See Rule 56(e).
II.

Facts

Pursuant to Rule 56 and the undersigned’s Standing Order on Civil Procedures,
Defendant filed Proposed Undisputed Facts (Doc. 25-13), to which Plaintiff filed a
response. (Doc. 31). Many of the facts have been deemed undisputed by the parties.
Where conflict exists and Plaintiff has cited any admissible evidence, the undersigned
has construed all disputed facts in favor of the Plaintiff, as the non-moving party. 2
Defendant Chipotle is a chain of “fast casual” restaurants that specializes in
Mexican fare and operates several restaurants located in or near Cincinnati, Ohio.

1

For example, although affidavits would otherwise constitute hearsay, Rule 56(c)(4) requires affidavits or
declarations to be based upon personal knowledge and to set forth only those facts that would be
admissible in evidence.
2
As discussed more fully below, evidence that could not be presented in an admissible form has not been
considered.

3

Plaintiff was an “at-will” employee of Chipotle, meaning that Chipotle or Plaintiff could
terminate the employment relationship without prior notice at any time, for any reason or
for no reason at all, so long as the reason was not in violation of federal law.
Every Chipotle restaurant is operated by a set of Crew Members. The Crew
Members are assisted and managed by four levels of management (listed in ascending
order of responsibility): Kitchen Manager, Service Manager, Apprentice Manager, and
General Manager. The Kitchen Manager and Service Manager positions are hourly
wage positions, while the General Manager (“GM”) and Apprentice Manager positions
are salaried.
The GM makes all hiring and firing decisions at each restaurant.

General

Managers of individual restaurants strive to be promoted to the rank of Restaurateur,
who set the standard for other managers. (Tr. 26-1 at ¶12). In Chipotle’s hierarchical
scheme, General Managers report to managers for field operations of multiple
restaurants within a geographic region, including “Team Leaders” and/or “Area
Managers.” Melvin Henriquez (“Henriquez”), a Hispanic male, was a Team Leader for
both Ohio restaurants at which Plaintiff worked during the time period at issue.
In February 2012, Plaintiff was hired by Chipotle as a cashier at a restaurant in
Sharonville, Ohio. In the summer of 2012, Jeysie Torres (“Torres”), also a Hispanic
male, became the GM at Sharonville.
In her first written performance review in April 2012 as a crew member at the
Sharonville location, Plaintiff was rated “Needs Improvement” on her people skills. She
was counseled “to make sure there is better communication on the line with her team
mates,” and that she “is inconsistent when it comes to her attitude with the customers.”
(Doc. 26-7 at 13). In November 2012, Torres rated her as “meets expectations” under
4

the category of “people,” but was again counseled that she needed ”better
communication on the line with her team mates,” and was “inconsistent when it comes
to her attitude with her team.” (Doc. 26-7 at 9). On both performance reviews, she was
advised to “make sure that she elevates her team and everybody that comes in contact
with [C]hipotle.” (Id., see also Doc. 26-7 at 13; Doc. 25-3 at 112). Plaintiff testified that
her performance improved, but admitted she would “sometimes have little relapses.”
(Doc. 26-3 at 106).
Torres appeared to agree that Plaintiff had demonstrated improvement. By the
spring of 2013, Torres had identified Plaintiff as a future Kitchen Manager in Sharonville
and encouraged her to pursue that position. Plaintiff testified that he “was very adamant
about me becoming Kitchen Manager…Mr. Torres was like…you have the capability
and the potential to be a kitchen manager. I think you need to stop doubting yourself
and give it a try.” (Doc. 26-3, Plaintiff’s deposition at 54:20-23; 55 10-12). On April 8,
2013, Torres recommended Plaintiff’s promotion to Kitchen Manager; her promotion
was approved by Henriquez.
After he promoted Plaintiff, Torres was transferred to the Evendale location in
order to help address multiple performance and quality issues at that location. Osbaldo
a/k/a “Ozzie” Amaya (“Amaya”), a Hispanic male, was also transferred to Evendale and
became the Apprentice Manager under Torres.

After Torres’s transfer, an African

American female became the new Sharonville GM.
Defendant maintains the new Sharonville GM had significant concerns about
Plaintiff’s performance and considered firing her. Plaintiff disputes the Defendant’s
evidence as hearsay because there is no corroborating testimony or affidavit from that
GM herself. However, Henriquez competently testified that he advised the new GM not
5

to fire Plaintiff but instead to transfer her to Evendale. (Doc. 26-8 at 62). Henriquez
also testified to Plaintiff’s negative reputation among her managers. (Doc. 26-8 at 2627, 43-44; Doc. 26-9 at 24, 35); see generally Fed. R. Evid. 802(21) (exception to
hearsay for reputation evidence).
On June 30, 2013, Plaintiff was transferred to Evendale to work with Torres.
Torres was an advocate for Plaintiff when she was performing well, and Plaintiff and
Torres considered each other “family.”
When she first arrived at Evendale, Plaintiff thought that other employees
believed that she and Torres were looking down on them. (Doc. 26-3 at 108). She
testified that when she was given a review in June of 2013, her communication skills
and morale were lacking and her “attitude did suffer a little bit” as a result of
“miscommunication with [her] coworkers.” (Doc. 31 at 7, citing Doc. 26-3 at 102-103).
Six months later, in a performance review dated December 16, 2013, Torres
rated Plaintiff as “Above Expectations,” (see Doc. 26-7 at 5), and recommended another
promotion, from Kitchen Manager to Service Manager. The decision was not popular
among Evendale Crew Members, who wanted Torres to promote from within the
Evendale location. Nevertheless, Henriquez again validated the promotion and testified
he noticed improvement in Plaintiff’s performance when she was in training for the
Service Manager position.

However, after her promotion, early in 2014, Henriquez

counseled Plaintiff “about her attitude towards other employees, and also about being
inconsistent with fulfilling her responsibility as a [S]ervice [M]anager.” (Doc. 26-8 at 2627). Plaintiff admitted that she had some difficulty with other crew members when she
was transitioning from Kitchen Manager to Service Manager, and “definitely had

6

relapses on the line” with her communication with other employees at that time. (Doc.
26-3 at 106, see also id. at 102).
On February 16, 2014, Chipotle’s Respectful Workplace Hotline received a
complaint from Evendale Crew Member Phillip Shelton, an African American male, that
he had not been paid for all hours worked. There is nothing on the written complaint
form to suggest that Shelton attributed the time inaccuracies to any racial animus. The
form itself constitutes an exception to hearsay under Federal Rule of Evidence 803(6).
By contrast, in testimony that constitutes hearsay with no obvious exception, 3 Plaintiff
testified that she overheard Shelton in his call to the Hotline explain that he did not have
a problem with his African American manager (Plaintiff) but had a problem with his two
Hispanic managers (Torres and Amaya). According to Plaintiff, Shelton clearly stated
that his two Hispanic managers had “been showing favoritism towards other Hispanic
workers that work the same position as me….” (Doc. 26-3 at 180). Henriquez received
a verbal complaint from Shelton on the same day about Shelton’s time being altered,
but neither Henriquez nor any other evidence corroborates Plaintiff’s testimony that
Shelton complained of racially motivated favoritism or discrimination. 4
Plaintiff testified that Shelton complained to her about the improper editing of
time around the same time, and that she then brought up the issue with GM Torres and

3

Shelton apparently no longer works for Chipotle, and neither Plaintiff nor Defendant has offered any
direct testimony or a declaration from him about the nature of his complaints about his time being shorted.
Other key witnesses, including Torres and Amaya, also left or were terminated from Chipotle between
June and August 2014. (Doc. 26-8 at 6-7). Neither party has submitted any testimony from those two prior
managers for consideration on summary judgment.
4
Although Plaintiff’s deposition testimony is not entirely clear, she testified that Shelton reported to her
that he was involved in a heated argument with Amaya the day before he complained to the Respectful
Workplace Hotline. Plaintiff’s testimony suggested that Shelton’s complaint to Plaintiff and to the Hotline
concerned Amaya’s reduction of his scheduled shifts from five days per week to three days per week
following that argument, which Plaintiff believed to be action that Amaya took to avoid working with
Shelton. (Doc. 26-3 at 179-185). She complained that changes in Shelton’s schedule left Plaintiff
understaffed on her own shifts, but made no mention of race. (Id., at 185).

7

his Apprentice, Amaya. In additional hearsay, Plaintiff testified that there were other
African American employees who brought their complaints of improperly edited time to
her around the same time period, but Plaintiff has not corroborated that testimony with
time records, Respectful Workplace Complaints, or the testimony or affidavits of the
referenced employees or other witnesses. She also admitted she did not discuss the
alleged additional reports with anyone, and made no independent Respectful Workplace
Complaint or other report to Chipotle management or anyone else.
Based upon Shelton’s complaint to him, Henriquez launched an investigation that
included conversations with the entire management team, including Torres, Amaya and
Plaintiff. Henriquez also spoke with other Crew Members at Evendale to ensure there
were no inadvertent discrepancies in their time record, and discovered none. Henriquez
concluded that Shelton often forgot to clock in or clock out at times, and that managers
(including Plaintiff Crawford) made mistakes in adjusting his time records. Henriquez
gave a verbal warning to all three managers (Torres, Amaya, and Plaintiff) that another
mistake in editing time records would result in the managerial employee’s termination.
After the investigation of Shelton’s complaint, the matter was closed.

The

Respectful Workplace Form reflects that Shelton agreed with his reimbursement of
missing hours after reporting the issue to Torres. (Doc. 26-11).

However, in hearsay

testimony that contradicts that business record, Plaintiff testified that she did not believe
that record was accurate, because Shelton later showed her his paycheck stub and the
missing time was not included on it.

(Doc. 26-3 at 177-178, 189).

In somewhat

inconsistent testimony, Plaintiff also testified that she was not aware if Shelton was paid
the back pay he was owed. (Doc. 26-3 at 189).

8

It is undisputed that neither Shelton

nor anyone else made any further complaint to Chipotle about missing time other than
Shelton’s fully resolved Respectful Workplace complaint.
In early March of 2014, Henriquez assigned Mr. Samuel Revis to oversee the
Evendale location to help Torres address ongoing issues.

Revis testified that he

witnessed the restaurant in disarray, the employees did not follow food safety protocols
or deliver acceptable customer service, and overall cleanliness of the restaurant was
lacking. Revis also determined that Torres was not accurately evaluating the Evendale
employees, because Torres was not being sufficiently objective about his employees,
which was negatively impacting operations. (Doc. 26-9 at 34; Doc. 26-8 at 38-39, 41).
Torres was counseled to improve in critiquing his employees, to remove people that
were wrong for the job and to hire new people to replace them as soon as possible.
(Doc. 26-9 at 34-35; Doc. 26-8 at 39, 45).
Torres terminated Plaintiff on March 17, 2014, after telling her that she was being
terminated because her crew did not like working with her. (Doc. 26-3 at 207). Torres
was very emotional and cried when he terminated her, because the two were very
close. (Doc. 26-3 at 209-210).

Although Plaintiff was terminated by Torres, Revis

supported that decision based upon his understanding of Plaintiff’s reputation. (Doc.269 at 24, 35; Doc. 26-8 at 45).
The record is not clear as to whether Plaintiff was replaced as Service Manager
at the Evendale location. Henriquez initially testified that she was not replaced at all
(Doc. 26-8 at 45-46), but later submitted an affidavit that agrees with the testimony of
Revis. Revis testified that Plaintiff was replaced within weeks of her termination by
another African American female, who was promoted from Kitchen Manager to Service
Manager. (Doc. 26-1 at ¶25); Doc. 26-9 at 37).
9

II. Analysis of Defendant’s Motion for Summary Judgment
A. Retaliation Claim
Title VII prohibits an employer from discriminating against an employee because
the employee “opposed…an unlawful employment practice under Title VII, 42 U.S.C. §
2000e-3(a).” 5 Ohio law similarly prohibits retaliatory employment practices. O.R.C. §
4112.02(1). In support of her retaliation claim, Plaintiff’s complaint alleges, in relevant
part:
7. In about February of 2013, Amaya altered the time records of Phillip
Shelton, an African American crew member at the restaurant. As a result,
Shelton was not paid money he earned. Shelton complained and Torres
was ordered to pay Shelton the money that was due. Torres either failed
or refused to pay Shelton the amount that was due.
8. A short time before March 17, 2014, Plaintiff complained to Torres that
he was discriminating against Phillip Shelton and that Torres needed to
stop harassing Shelton.
9. Torres told Plaintiff that the only reason she was defending Shelton
was because Plaintiff was black.
*****
14. Plaintiff engaged in protected conduct by complaining about racial
discrimination toward an African American employee.
Defendant
retaliated against Plaintiff and terminated her shortly after she engaged in
protected conduct. The stated reason for Plaintiff’s termination is
pretextual…
(Doc. 1).
To establish a prima facie case of unlawful retaliation, a plaintiff must prove:
(1) he engaged in activity protected under Title VII; (2) his exercise of such
protected activity was known by the defendant; (3) thereafter, the
defendant took an action that was “materially adverse” to the plaintiff; and

5

Title VII’s anti-retaliation provision also makes it unlawful for an employer to discriminate against an
employee who participates “in any manner in an investigation, proceeding, or hearing under” Title VII.
See generally Crawford v. Metro Gov’t Nashville & Davidson Cnty, Tenn., 555 U.S. 271, 274 (2009)
(describing “opposition” and “participation” clauses of Title VII’s anti-retaliation provision).

10

(4) a causal connection existed between the protected activity and the
materially adverse action.
Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (internal quotation marks
and additional citations omitted). In addition, the Supreme Court has explained that
“retaliation claims must be proved according to 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 of the alleged wrongful
action or actions of the employer.” Univ. of Texas Southwestern Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533 (2013). Defendant argues that Plaintiff cannot establish several
elements of her claim: that she engaged in protected activity, that Torres was aware of
any protected activity, or that a causal connection existed between Plaintiff’s activity and
her termination.
Plaintiff’s claim that she engaged in “protected activity” rests exclusively on her
testimony that she complained about the fact that Shelton’s hours had been improperly
adjusted to Torres and/or Amaya. There is no dispute that Plaintiff made no formal
complaint of discrimination outside of her conversations with Torres and/or Amaya.
Plaintiff did not participate in any investigation of Shelton’s complaint by Chipotle, did
not testify as a witness for him, and was not interviewed by anyone at Chipotle in
response to Shelton’s complaint. However, she claims that her verbal complaints to
Torres and/or Amaya amounted to protected “opposition” to a discriminatory
employment practice.
A plaintiff need not have made any type of formal complaint to have engaged in
“protected activity,” so long as she has communicated a demand that a supervisor
cease activity made unlawful by Title VII.
11

See Yazdian v. ConMed Endoscopic

Technologies, Inc., 793 F.3d 634, 645 (6th Cir. 2015). On the other hand, “Title VII
does not protect an employee…if his opposition is merely a ‘vague charge of
discrimination.’” Id., quoting Booker v. Brown & Williamson Tobacco Co., 879 F.2d
1304, 1313 (6th Cir. 1989); see also Fox v. Eagle Distrib. Co., 510 F.3d 587, 591-392
(6th Cir. 2007) (holding that plaintiff’s actions did not constitute a legally sufficient
complaint where “the record [did] not contain any evidence that [the plaintiff] specifically
alleged discriminatory employment practices in his discussion.”). Ohio law similarly
requires “an overt stand against suspected illegal discriminatory action,” while “[v]ague
charges of discrimination” have been deemed to be insufficient. Locket v. Marsh USA,
Inc., 354 Fed. Appx. 984, 997 (6th Cir. 2009).
Here, summary judgment should be granted to the Defendant because Plaintiff’s
deposition testimony confirms that her informal complaints did not constitute any type of
overt stand against the type of discriminatory practice prohibited by Title VII, but were
no more than vague complaints that would not have put a reasonable employer on
notice, and did not in fact put Torres or Amaya on notice, that Plaintiff was complaining
about racial discrimination. During her deposition, Plaintiff described the details of her
conversations with Torres and Amaya. Those details were markedly devoid of any
reference to race-based discrimination against Shelton, or any suggestion that Plaintiff
was complaining of discrimination based on race against other employees or herself.
For example, Plaintiff testified that she first confronted Torres and Amaya
specifically about Shelton’s time records in January 2014, just after discovering the
discrepancies:
A: I went to [Torres and Amaya] about it and was like, hey, you know,
[Shelton] asked me to check his time for him, and what’s on his slip does
not match, you know, what we have in the computer, and he’s saying you
12

guys went back and adjusted his time. [Torres and Amaya] were like oh,
you know, [Shelton] forgot to clock out that day, or he asked me to clock
him out. And, you know, I explained to him, well, he has the slips for
them, so that’s really not looking good; but if that’s what you say, I’m going
to take your word for it.
(Doc. 26-3 at 174).

At the time, Plaintiff accepted her managers’ stated non-

discriminatory business reason for the allege errors in Shelton’s records.
Q: Okay. So you took their word for it?
A: Yes.
(Id.) This initial conversation, which allegedly occurred weeks prior to Shelton himself
calling the Respectful Workplace hotline or making any complaint to Henriquez on
February 16, 2014, did not constitute protected activity because neither the
circumstances of the conversation nor the language used by Plaintiff would give rise to
any inference that Plaintiff was complaining about a racially discriminatory employment
practice.
Plaintiff was asked what happened next. She testified that she continued to
notice time discrepancies with Torres and with other employees, which led her to
investigate further and to have a second conversation on an unknown date with Torres
and Amaya.
A: It got to the point that, you know, they were saying, oh, you now, I was
clocking them out, but I was – they admitted to making the time earlier
than what they clocked out because we are - our labor metric was off.
And I explained to them, like, hey, this is in our handbook; don’t do it
again, because, you know, this can result in you being terminated.
Q: Okay. And what did they say?
A: And [Torres] was like – [Torres and Amaya] basically was like, we
know, you now, it won’t – it won’t happen again; we just have to get
through this; we’re really trying to get to Restaurateur, just – we just
needed to balance this out; Melvin [Henriquez] is really on our case about
13

getting the Restaurateur. I’m like, okay, you know, just don’t let it happen
again.
(Doc. 26-3 at 175-176). Plaintiff testified that after this second conversation the timeshaving issue did not re-occur. She checked the time records of other employees and
“their time would be correct,” and “[a]s far as Mr. Shelton, he had stopped asking me to
check his time for him.” (Id. at 176). She further testified that the issues with improper
time shaving were resolved after Henriquez had a similar conversation with all three
managers, including Plaintiff, warning that they would face termination if further
discrepancies were found. (Doc. 126-3 at 186-188).
Plaintiff never expressed any other complaints to anyone in Chipotle or outside of
Chipotle. When questioned as to why she did not voice any further complaint, she
again focused on explanations that had nothing to do with race-based discrimination,
explaining:
I trusted that my managers would correct their behavior and they were
blindsided by the pressure to become Restaurateur, that it had altered
their judgment. …And then, when I asked them about it and they admitted
to it, I’m like, okay, you know, I get it, we’re under pressure for
Restaurateur, you do realize you can lose – we all can lose our job for
this; don’t let it happen again, unfortunately, I’m not going to have a choice
but to report it because it’s illegal; you did it the first time, it was illegal, but
we can’t have it anymore. Oh, it was only 15 minutes. But those 15
minutes add up and they notice it.
(Doc. 26-3 at 176-177).
Although Plaintiff testified that she told her managers that the practice was
“illegal,” it is clear from the context of her deposition testimony that she believed the
practice to be illegal under company policy or fair labor and/or wage reporting laws,
because an employer must pay its employees for all time worked.

Plaintiff did not

testify at any point in her deposition that she told Torres or Amaya that she believed that
14

they were cutting Shelton’s time or any other employee’s time based upon race, or that
she believed that they were engaged in any other practice prohibited by Title VII. The
only reasonable interpretation of Plaintiff’s testimony is that she believed (and
expressed that belief to Amaya and Torres) that they had engaged in “illegal” timeshaving not because of any discriminatory race-based animus, but based upon
corporate pressures to reduce their labor costs in order to achieve “Restaurateur”
status.

Thus, her verbal complaints to her supervisors do not constitute protected

activity. “Complaints concerning unfair treatment in general which do not specifically
address discrimination are insufficient to constitute protected activity.” Weaver v. Ohio
State Univ., 71 F. Supp.2d 789, 793-794 (S.D. Ohio 1998). No reasonable fact-finder
would infer that Plaintiff was complaining about any racially discriminatory practice or
practice prohibited by Title VII, as opposed to some other form of illegality or violation of
Chipotle policy. See Davis v. City of Memphis Fire Dept., 940 F. Supp.2d 786, 797
(W.D. Tenn. 2013) (no protected activity where complaints about illegal locker search
and other practices “were not in opposition to employment practices made illegal by
Title VII”) (emphasis original).
In her opposition to summary judgment, Plaintiff argues that her complaints were
in fact sufficient to put Torres on notice that she was alleging racial discrimination by
Torres against Shelton.

For the first time on summary judgment, she attaches an

affidavit that contains language that mirrors the precise language of her complaint, and
attests that she told Torres specifically “that he was discriminating against Mr. Shelton
and that he needed to stop harassing Mr. Shelton.” (Doc. 29-1 at ¶3, emphasis added;
compare Doc. 1 at ¶8). Crawford also asserts for the first time in her affidavit that “Mr.
Torres was purposefully interfering with Mr. Shelton getting his back pay.” (Id.).
15

Plaintiff cannot defeat summary judgment on the basis of new affidavit testimony
that she told Torres he was “discriminating against” and “harassing” Shelton, because
those statements are inconsistent with her prior deposition testimony. At her deposition,
Plaintiff clearly testified that she complained about Torres’s “lapse of judgment,” in
reaction to the corporate pressure being exerted upon him to improve the restaurant’s
performance. She never testified to any complaints of racially motivated “discrimination”
or harassment.

(Doc. 26-3 at 185, 188).

To the contrary, the conversations and

Plaintiff’s deposition testimony reflect no more than complaints that Torres and/or
Amaya were engaging in time-shaving in response to pressure to raise profits through
the improper reduction of labor costs.

There is no suggestion in any of Plaintiff’s

deposition testimony that she expressed any belief that race played any role in that
practice. 6 The new testimony presented in her affidavit is insufficient to overcome her
prior deposition testimony. See Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th
Cir. 1986).
Even if the affidavit were to be considered by this Court, the undersigned finds it
insufficient to affirmatively show that Plaintiff engaged in protected activity by
complaining about discrimination based on race.

Use of a general word like

“discrimination” in a single conversation, without reference to race, age, gender or other
protected category, and without any other contextual evidence that would give rise to an
inference that the complaining party is taking a stand against the type of discrimination
prohibited by Title VII, is simply too vague to constitute “protected activity.”

See

Scheske v. Univ. of Mich. Health Sys., 59 F. Supp.3d 820, 828 (E.D. Mich. 2014)
6

After a lengthy Q&A and discussion about her complaints to Torres and Amaya, defense counsel
specifically asked Plaintiff: “[I]s there anything else about that issue [time-shaving] that you want to talk
about?” to which Plaintiff responded “No.” (Doc. 26-3 at 189).

16

(plaintiff failed to present sufficient evidence for a reasonable jury to infer that she was
complaining of gender discrimination; Plaintiff’s testimony that she “described” gender
discrimination was not sufficient in light of record as a whole). During her deposition,
Plaintiff repeatedly testified to her complaints that Torres and Amaya were engaging in
time-shaving in response to corporate pressure to reduce the store’s labor metric and
increase profits, without any reference to any type of racial animus. She also testified to
her belief that Amaya had reduced Shelton’s hours based upon an interpersonal conflict
the two had engaged in the day before, and that Shelton’s complaint to the Respectful
Workplace Hotline arose from that event.

Even if Plaintiff did tell Torres to stop

“discriminating” against Shelton, her own testimony about the context of her
conversation confirms that her vague reference does not rise to the level of protected
activity, but instead suggests no more than a complaint that the managers were unfairly
singling him out. Accord Samuels v. Correctional Medical Serv., Inc., 591 Fed. Appx.
475, 485 (6th Cir. 2015) (“Not once does [plaintiff] suggest…that she was being
harassed, discriminated against, or retaliated against based on any protected
characteristic….”), McNamara v. General Motors, LLC, 189 F. Supp. 3d 685, 700 (N.D.
Ohio 2016) (Plaintiff’s anti-retaliation claim failed where he offered no evidence that he
notified management that his complaints were related to his disability).
In her response in opposition, Plaintiff additionally argues that Torres’s alleged
verbal response to Plaintiff is sufficient to create an issue of fact. Though Plaintiff
provided no deposition testimony on this issue, she asserted in her responses to written
discovery that she had “numerous conversations” with Torres about Shelton’s
inaccurate time records, and that “[e]ach time, the conversation was always shut down
with the statement that I was just on his side because of we were the same race.” (Doc.
17

26-12 at 7). In the affidavit submitted in opposition to summary judgment, Plaintiff
similarly avers (in language that mirrors her complaint), that Torres told her that she was
only standing up for Shelton because she and Shelton were both black.
This evidence does not suffice to establish Plaintiff’s prima facie case
considering the record as a whole. The alleged comment amounts to an accusation by
Torres that Plaintiff herself was engaging in race-based discriminatory conduct by
excusing the poor performance of an employee (Shelton) for racial reasons, rather than
objectively viewing Shelton’s performance and routine failures to clock in or out. Given
the record as a whole, it is too far a stretch for Plaintiff to suggest that Torres’s alleged
statement acknowledges that he understood Plaintiff to be accusing him of racial
discrimination. Accord Marshall v. Belmont Cnty Bd. of Com’rs, 1110 F. Supp.3d 780,
802 (S.D. Ohio 2015) (holding Plaintiff’s complaints did not amount to protected activity
required to support retaliation claim, where Plaintiff’s affidavit averred in only a
conclusory fashion that she complained about sexual harassment and gender
discrimination, and deposition testimony suggested only generic complaints that she
was being treated differently). At best, the record reflects that Plaintiff made several
complaints about the unfair treatment of Shelton by Torres, which cannot form the basis
of a retaliation claim. See Baker v. Medtronic, Inc., 2009 WL 948800 at *8 (S.D. Ohio
April 2, 2009).
Plaintiff’s own testimony suggests that Torres and Amaya believed she was
referring to the violation of Chipotle’s timekeeping practices. (Doc. 26-3 at 176-177).
See Choate v. Advance Stores Co., Inc., 169 F. Supp.3d 724, 734 (M.D. Tenn. 2015)
(no evidence that Defendant interpreted vague complaints to be alleging discrimination
against protected class); see also Trujillo v. Henniges Automotive Sealing Sys. N. Am.,
18

Inc., 560 Fed. Appx. 460, 469 (6th Cir. 2014)(“brief, non-specific complaint expressing
generalized discomfort with comments” not sufficient to lead a reasonable juror to
conclude that supervisor knew plaintiff was engaging in protected opposition activity).
Nor was Henriquez aware of any allegations of racial discrimination. (Doc. 26-8 at 62).
Having determined that Plaintiff has failed to establish that she engaged in any
“protected activity” of which Torres was aware, the undersigned finds no need to reach
the issue of whether Plaintiff has established the fourth element of a prima facie
retaliation claim: a causal connection between her protected activity and her
termination.

But see generally McIlwain v. Ohio Dept. of Mental Health, Northcoast

Behavioral Healthcare System, 409 F. Supp.2d 908, 918 (N.D. Ohio 2006) (“Absent
…awareness on the part of her employer [that plaintiff was engaging in protected
activity], plaintiff cannot establish a causal connection between her comment… and the
numerous write-ups which she received.”).
B. Race Discrimination Claim
“[T]he same framework used to evaluate a Title VII discrimination claim applies to
discrimination claims under § 1981 and O.R.C. § 4112.02.” Smith v. Board of Trustees
Lakeland Cmty. Coll., 746 F. Supp. 2d 877, 893 (N.D. Ohio 2010). Under the familiar
framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), Plaintiff may establish a prima facie case of discrimination by showing that: 1)
she is a member of a protected class; 2) she suffered an adverse employment action; 3)
she was qualified for the position lost; and 4) she was replaced by an individual outside
the protected class, or alternatively, was treated less favorably than a similarly-situated
individual outside the protected class. See Wright v. Murray Guard, Inc., 455 F.3d 702,
706 (6th Cir. 2004).
19

On the record presented, Defendant does not dispute that Plaintiff can establish
the first three elements of her claim. However, Plaintiff has failed to offer any evidence
to establish that she was replaced with an individual outside of her protected class, or
that she was treated less favorably than similarly situated employees outside of her
protected class.
Plaintiff was terminated on March 17, 2014 by Torres. Torres alone, as the GM,
was responsible for hiring and firing decisions. (Doc. 31 at ¶¶5, 20, 63-65; see also
Doc. 29 at 15, acknowledging “Torres was the sole decision maker in Plaintiff’s
termination.”). The mere fact that Torres was of a different race than Plaintiff is not
sufficient to show racial bias. Geary v. UC Health, Case No. 1:13-cv-300, 2015 WL
3822891 at *8 (S.D. Ohio Jan. 23, 2015), adopted at 2015 WL 3823749 (S.D. Ohio Jun
19, 2015)..
Torres terminated Plaintiff soon after Revis advised him to make personnel
changes “because the team [Mr. Torres] had at the time was not able to be successful
either because they were training incorrectly or…he hired the wrong people.” (Doc. 31
at ¶62, citing Doc. 26-9 at 34; see also Doc. 26-8 at 38). Torres notified Plaintiff that he
was terminating her because her crew members did not like working with her. (Doc. 263 at 207).

Ironically, Plaintiff had twice been promoted by Torres, who Plaintiff

acknowledged to be a strong advocate on her behalf, and with whom Plaintiff felt a
close emotional bond and considered “family.”

Although there is no mandatory

inference that must be applied, the “same-actor inference” provides additional evidence
- especially where Plaintiff has otherwise failed to raise a genuine issue of material fact that there was no discrimination involved in the later termination.

20

See Wofford v.

Middletown Tube Works, Inc., 67 Fed. Appx. 312, 318 (6th Cir. 2003) (citing Wexler v.
White’s Fine Furniture, Inc., 317 F.3d 564, 572 (6th Cir. 2003)(en banc)).
Apart from the same actor inference, it is undisputed that Plaintiff was not
replaced after her termination by someone outside of her protected class. Although the
Plaintiff is quick to point to a discrepancy between the deposition testimony of
Henriquez and that of Revis on the issue of whether she was replaced at all, 7 the
dispute is not material. Both men testified that Plaintiff was not replaced immediately
upon her termination, and that if/when she was ever replaced, her replacement was
another African American female. There is no evidence at all that Plaintiff was replaced
by someone who was of a different race.
Plaintiff also has failed to put forth sufficient evidence to create a genuine issue
on whether similarly situated employees were treated differently. “To be deemed
similarly situated, the individuals with whom the plaintiff seeks to compare his treatment
must have been the same in all relevant aspects.” Kumar v. Aldrich Chem. Co., 911 F.
Supp.2d 571, 585 (S.D. Ohio 2012).

In her complaint, Plaintiff alleges only that

“[s]imilarly-situated non-African American employees who engaged in improper conduct,
including falsifying time records and theft, were not terminated.”

(Doc. 1 at ¶ 16,

emphasis added). However, in written discovery responses, Plaintiff identified seven
Hispanic individuals as similarly-situated employees who she believes received other
more favorable treatment unrelated to discipline/termination, because the referenced
Hispanic employees were “allowed overtime hours when no one else was able to get

7

Henriquez initially testified that Plaintiff was not replaced by anyone, but later filed an affidavit consistent
with the testimony of Revis, who identified another African-American female who was promoted from
Kitchen Manager to Service Manager within weeks after Plaintiff’s termination.

21

overtime hours, and allowed to pick what shift and position they wanted to work.” (Doc.
26-12 at 5 and 7).
As Defendant points out, six of the individuals identified by Plaintiff as receiving
more favorable treatment were crew members, not managerial employees, and
therefore are not similarly situated.

“It is the plaintiff’s burden to establish that a

similarly situated person outside the protected class was treated more favorably than
[plaintiff].” Noble v. Brinker Int’l, Inc., 391 F.3d 715, 728-729 (6th Cir. 2004) (citing
Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). Plaintiff’s reliance on
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998) is misplaced
to the extent that Plaintiff argues that the distinction does not matter. The Sixth Circuit
explained in Ercegovich that courts
should make an independent determination as to the relevancy of a
particular aspect of the plaintiff's employment status and that of the nonprotected employee. The plaintiff need not demonstrate an exact
correlation with the employee receiving more favorable treatment in order
for the two to be considered “similarly-situated;” rather, as this court has
held in Pierce, the plaintiff and the employee with whom the plaintiff seeks
to compare himself or herself must be similar in “all of
the relevant aspects.” Pierce, 40 F.3d at 802 (emphasis added).
Id., 154 F.3d at 352. In staffing a restaurant, the distinction scheduling a manager’s
presence and staffing crew members on a given shift is not only relevant, but arguably a
critical distinction. Thus, variations in the scheduling of crew members identified by
Plaintiff versus the scheduling of managerial employees like Plaintiff does not support
her prima facie claim. See Johnson v. Kroger Co., 319 F.3d 858, 869 (6th Cir. 2003).
Plaintiff also identified Amaya and Torres as similarly situated managerial
employees who were treated differently, because they were not subjected to discipline
or terminated despite allegedly similar offenses.
22

Plaintiff first asserts that “neither

Amaya nor Torres were disciplined for altering Phillip Shelton’s schedule and refusing to
pay him after he complained to Respectful Workplace.” (Doc. 26-12 at 5-6).
Contrary to her initial discovery responses, Plaintiff later admitted that all three
managers – Amaya, Torres, and Plaintiff herself – were verbally warned by Henriquez
that another mistake in editing time entries would result in termination. (Doc. 26-8 at 33;
Doc. 31 at ¶56). 8 Therefore, Plaintiff was not subjected to more severe discipline, nor
were Amaya or Torres subjected to less discipline, for the errors in Shelton’s time
records. 9
Last, in what the undersigned assumes to be in support of the allegation in her
complaint that similarly situated employees were not terminated for “theft,” Plaintiff
asserts that Amaya “was not disciplined even though there were shortages on deposits
that he made….” (Doc. 26-12). Defendant first argues that Amaya was not similarly
situated because he was a salaried manager who was in an apprentice position for the
entire restaurant, with greater responsibilities than Plaintiff had as an hourly managerial
employee. However, the undersigned does not agree that Amaya cannot be considered
a comparator in this instance, since both Torres and Henriquez outranked and
supervised both Amaya and Plaintiff at the Evendale location to some degree. 10

8

Plaintiff has come forward with no admissible evidence that would contradict evidence that Shelton was
actually paid for the missing time after his complaint was investigated. (Doc. 26-11, Doc. 26-8 at 32; Doc.
31 at ¶47).
9
To the extent that Plaintiff relies upon the alleged argument between Amaya and Shelton that Plaintiff
asserts led to Amaya reducing the number of Shelton’s hourly shifts each week, Defendant argues that
this Court should not consider that evidence because it is based solely on hearsay, and not corroborated
by any competent evidence. The undersigned agrees. Alternatively, the undersigned agrees that
Amaya’s alleged one-time altercation with Shelton is not equivalent to Plaintiff’s history of ongoing
conflicts with co-workers and crew members.
10
Team Leader Henriquez also gave the same verbal warning to all three Evendale managers about the
discrepancies in the time records, and to that extent Plaintiff and Amaya also fell under the same
“supervisor” for that conduct.

23

On the other hand, Plaintiff’s accusation that Amaya was not disciplined despite
shortages in his deposits, and/or may have committed “theft,” is wholly conclusory and
not supported by admissible evidence. See Moore v. Ohio Edison Co., Inc., 2016 WL
7097631 at *4 (N.D. Ohio Dec. 6, 2016) (holding that conclusory allegations are
insufficient to defeat a well-supported motion for summary judgment).

In addition,

independent of that serious evidentiary issue, Plaintiff still has failed to show that Amaya
engaged in the same or similar misconduct and was not terminated. Rather, Plaintiff is
claiming that Amaya engaged in entirely different misconduct and was not terminated –
which de facto distinguishes him as a comparator. See Highfill v. City of Memphis, 425
Fed. Appx. 470, 474 (6th Cir. 2011) (“unrelated information about other types of
infractions by fellow employees is not relevant for purposes of comparison”).

And

contrary to her accusation, Plaintiff testified that both Amaya and Plaintiff were
questioned about shortages in their deposits. (Doc. 26-3 at 212-213). Neither was
terminated for those alleged shortages and to that extent, they were treated equally.
Plaintiff’s subjective belief that her explanation for the shortage(s) was credible or “valid”
while Amaya’s explanation was not, (see id.), and therefore should have resulted in
more severe discipline, is not sufficient to defeat summary judgment.
Finally, Plaintiff strongly implies that Torres may have fabricated documentation
of a verbal warning about her conflicts with crew members in order to support her
termination after-the-fact. Although the allegedly fabricated document has not been
entered into the record before this Court, Plaintiff appears to have been questioned
about it at her deposition. (Doc. 29 at 11, referring to Doc. 26-3 at 8-9, 199-200). The
suggestion that Torres fabricated evidence that has not been submitted to this Court

24

amounts to nothing more than unsupported speculation, and is not further considered.
Dean-Lis v. McHugh, 598 Fed. Appx. 412, 415 (6th Cir. 2015).
C. Lack of Pretext
The undersigned has concluded that Defendants are entitled to summary
judgment based upon Plaintiff’s failure to prove her prima facie case on either her
retaliation or discrimination claims.

Alternatively, the undersigned concludes that

Defendant is entitled to summary judgment because it has come forward with a
legitimate, nondiscriminatory reason for Plaintiff’s termination, and Plaintiff has not
carried her burden to show that the stated reason was pretextual.
Of course, this additional inquiry is unnecessary to the extent that no prima facie
case has been established. It is only when a plaintiff has established her prima facie
case that the burden of production shifts to the employer to put forth a “legitimate,
nondiscriminatory reason” for the adverse action taken. Wright v. Murray Guard, Inc.,
455 F.3d at 706 (citing Burdine v. Texas Dept. of Community Affairs, 450 U.S. 248, 253
(1981)). If the employer meets that burden, then “the presumption of discrimination
created by the prima facie case falls away…and the plaintiff then needs to show that the
defendant’s ‘legitimate nondiscriminatory reason’ was a ‘pretext for discrimination.’” Id.,
at 706-707 (internal citations omitted).
On the day she was terminated, Torres told Plaintiff that she was being let go
because her crew members did not want to work with her.

Plaintiff was an at-will

employee and the stated reason for her termination was facially legitimate and
nondiscriminatory. See Setzer v. Heartland Sec. Mortg., LLC, 2006 WL 1133253, at *5
(S.D. Ohio Apr. 27, 2006) (finding plaintiff’s alienation of salespeople legitimate reason
for termination). Despite two promotions by Torres within the time period that Plaintiff
25

worked for Chipotle, Plaintiff had received similar critiques about her interpersonal skills
on prior written evaluations. Therefore, to the extent that any reviewing court would find
(contrary to the undersigned) that Plaintiff has in fact established a prima facie case, the
undersigned alternatively concludes that Defendants have rebutted the presumption of
discrimination. See Chen v. Dow Chemical Co., 580 F.3d 394, 401 (6th Cir. 2009)(no
pretext where employer acted on evidence of performance problems and conflicts with
coworkers); see also generally Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661
(6th Cir. 2000). So long as the employer “reasonably relied on the particularized facts
then before it, [the Court does] not require that the decisional process used by the
employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether
the employer made a reasonably informed and considered decision before taking an
adverse employment action.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.
1998).
1. Plaintiff’s Failure to Show No Basis in Fact
Defendant is entitled to summary judgment, because Plaintiff has failed to show
that the reasons given for her termination were not the true reasons, but were instead
were a pretext for discrimination. Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A.,
12 F.3d 1382, 1395 (6th Cir. 1993). “The ultimate burden of proving the defendant's
intent to discriminate remains with the plaintiff at all times.” Wright v. Murray Guard, Inc.,
455 F.3d 702, 707 (6th Cir. 2006), (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
511 (1993)). In fact, Torres himself was terminated within three months of Plaintiff for a
similar reason, because he was “not earning the respect and the trust of his crew” in the
manner that Chipotle expected. (Doc. 26-9 at 25).

26

Rather than showing that Defendant’s reasons were pretextual, Plaintiff attempts
to impermissibly shift the burden to the Defendant to prove the truth of Torres’s stated
reasons for her termination. Plaintiff argues, for example, that the “Defendant has not
provided evidence supporting its claim that Plaintiff was terminated because her crew
did not want to work with her,” and has “not presented any evidence or testimony from
Torres about his motive,” or “from crew members supporting Torres’[s] claim.” (Doc. 29
at 15). But the Defendant easily satisfied its burden of articulating a non-discriminatory
reason for Plaintiff’s termination through Plaintiff’s own testimony.

Once Defendant

came forward with that evidence, it became Plaintiff’s burden to rebut the proffered
rationale, not the Defendant’s burden to prove it.
Plaintiff testified at length that Torres was very emotional and clearly struggled
with his decision to terminate her, as he had been her strong advocate in the past and
the two were close. The Defendant was not required to produce evidence beyond
Plaintiff’s own testimony about Torres’s stated reasons for terminating her, since there
is no dispute he was the sole decision maker in this case. (Doc. 29 at 15). And, while
the Defendant had no obligation to produce additional evidence, the record contains
substantial evidence, in the form of Plaintiff’s reputation among her managers, her
written performance reviews, and Plaintiff’s own testimony about her continuing
interpersonal conflicts with her crew members (including Phillip Shelton), to support
Torres’s stated reasons for the termination.
Rather than providing evidence sufficient to rebut that rationale, Plaintiff attempts
to overcome Torres’s stated reason for her termination based on nothing more than her
own subjective beliefs.

Plaintiff’s lack of any evidence of pretext is fatal to her claim.

See Mitchell v. Toledo Hosp., 964 F.2d at 584-85 (plaintiff’s subjective belief insufficient
27

to maintain claim of race discrimination); see also In re Morris, 260 F.3d 654, 665 (6th
Cir. 2001)(holding that a nonmoving party has an affirmative duty to direct the court’s
attention to specific portions of the record upon which the nonmovant seeks to rely to
create a genuine issue of material fact).
Defendant Chipotle would be entitled to summary judgment even if the
undersigned believed that Plaintiff’s termination was too harsh a penalty. The Sixth
Circuit uses a modified “business judgment” or “honest belief” rule, whereby a court will
permit an employer to “establish its reasonable reliance on the particularized facts that
were before it at the time the decision was made.”

Blizzard v. Marion Technical

College, 698 F.3d 275, 286 (6th Cir. 2012)(quoting Escher v. BWXT Y-12, LLC, 627
F.3d 1020, 1030 (6th Cir. 2010)(additional internal quotation marks and citation
omitted)).

Here, Plaintiff has failed to produce any evidence demonstrating that

Defendant’s reliance on Torres’s stated reasons for termination were unreasonable.
Plaintiff’s disagreement with that decision “does not create sufficient evidence of pretext
in the face of the substantial evidence that [the employer] had a reasonable basis to be
dissatisfied.” Id. (quoting Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106,
1116 (6th Cir. 2001)).
In short, Plaintiff’s subjective perception that she should not have been fired does
not overcome the Defendant’s reasonable belief that Plaintiff lacked the qualities and
abilities to be an effective manager, given the consistent nature of the interpersonal
issues that Plaintiff had during her tenure with Chipotle, and the pressure on Torres to
expeditiously improve the restaurant’s performance with personnel changes. Even if
Plaintiff believes that Defendants’ decision to terminate her was unfair, or overly abrupt,
that belief does not translate to proof of an impermissible racial motive. Accord Burnett
28

v. Carrington Health Systems, Case No. 1:11-cv-324, R&R filed 11/30/2012, adopted at
2013 WL 1150208 (S.D. Ohio, March 19, 2013)(granting defendant’s motion for
summary judgment and dismissing case).
2. Failure to Prove that Retaliation was the Real Reason
In addition to showing that the stated reason had no basis in fact, pretext can be
shown by offering evidence that “the stated reason did not actually motivate the
employer, or…the stated reason was insufficient to warrant the adverse employment
action.”

Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 590 (6th Cir. 2014).

Ultimately, “[p]retext is a commonsense inquiry: did the employer fire the employee for
the stated reason or not?” Chen, 580 F.3d at 400 n.4.
Plaintiff argues that even if jurors found that there was some evidence to support
Torres’s articulated reason for firing her, a jury could still find that Torres was using that
excuse as a pretext for retaliating against her for her complaints about his treatment of
Shelton. Plaintiff relies on Imwalle v. Reliance Medical Products, 515 F.3d 531 (6th Cir.
2008) to argue that the evidence is sufficient for a jury to find that retaliation was the
real reason for her termination, rather than her performance.
I disagree. First, as discussed, there is ample evidence to support the stated
reasons. This not a case where the “sheer weight of the circumstantial evidence” was
sufficient to go to the jury on the issue of pretext. Id. at 851 (quoting Manzer, 29 F.3d at
1084). Rather, as discussed above, Plaintiff has failed to make out even a prima facie
case of retaliation because her conversations with Torres did not amount to protected
“opposition” activity.

Even if the conversations somehow could be viewed in that

context, there is no evidence that Torres understood her criticisms about Shelton’s time
records to be opposition to race-based discrimination as opposed to mere criticism that
29

he was violating company policy and/or wage laws that require full payment for time
worked.
3. Failure to Prove that Conduct Insufficient to Support Discharge
For similar reasons, Plaintiff has failed to offer any evidence to suggest that her
chronic interpersonal issues with crew members were insufficient to motivate her
termination, at a time when Torres was facing intense corporate scrutiny to make
personnel changes that would improve the restaurant’s performance. Both Henriquez
and Revis testified that Torres was terminated just three months later for failing to
improve performance, and for failing to be an objective and effective manager, and to
hire the right people. (Doc. 26-8 at 48-49; Doc. 26-9 at 25).
III. Conclusion and Recommendation
For the stated reasons, the undersigned hereby RECOMMENDS that the
Defendant’s Motion for Summary Judgment (Doc. 26) be GRANTED.

Plaintiff’s

complaint should be dismissed with prejudice, and this case be CLOSED.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

30

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ALASHAE CRAWFORD,

Case No. 1:15-cv-694

Plaintiff,

Dlott, J.
Bowman, M.J.

v.

CHIPOTLE MEXICAN GRILL,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

31