Woods et al v. FacilitySource, Inc. et al

Filing 82

OPINION AND ORDER granting 60 Motion for Summary Judgment. Signed by Judge James L Graham on 1/20/2015. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Gary W. Woods, et al.,

Case No: 2:13-cv-621

Plaintiffs,

Judge Graham

v.

Magistrate Judge Deavers

FacilitySource LLC, et al.,
Defendants.
Opinion and Order

This employment discrimination action is before the court on defendants’ motion for
summary judgment. Plaintiff Gary Woods, who is an African American, alleges that he was subject
to racial discrimination and a hostile work environment while he was employed as an account
manager at defendant FacilitySource LLC in Columbus, Ohio. Plaintiff Nicolas Lorenzo, who is
Caucasian and is employed as an account manager at FacilitySource, alleges that he was subject to
discrimination and a hostile work environment based upon his association with Woods. Both
plaintiffs allege that the discrimination took the form of them receiving lower wages than other
account managers.
As will be discussed below, defendants have articulated legitimate non-discriminatory
reasons for the pay differential between plaintiffs and other account managers, and plaintiffs have
failed to produce evidence from which a jury could reasonably find that such non-discriminatory
reasons were pretextual. Further, the alleged incidents of harassment do not rise to the level of a
hostile work environment as a matter of law. Accordingly, the court grants defendants’ motion for
summary judgment.
I.

Background
FacilitySource provides facility maintenance services to a range of businesses, including

department stores and quick service restaurants.

Decl. of William Hayden, ¶ 2.

Since 2005

FacilitySource has experienced “rapid growth, averaging 25-30% growth each year,” and a private
equity firm purchased a majority interest in the company in 2012. Id., ¶¶ 4, 5. Defendant William
Hayden is the President and Chief Executive Officer of FacilitySource, and defendants Duane Smith
and Jordan Wagner are management-level employees. Id., ¶ 6.
1

Plaintiff Woods began his employment with FacilitySource in September 2005 as a customer
service representative and earned a starting salary of $10 per hour. See Woods Dep., Ex. 7. After
several promotions, Woods was promoted to account manager in October 2009 with an annual
salary of $40,000. See Woods Aff., ¶ 13; Doc. 71, Page ID 1158. He received raises in April 2010
and April 2011 that brought his salary to $41,200 and then $42,200. See Woods Dep., Ex. 7.
Woods received generally positive work performance reviews. See id., Exs. 8-12. After this lawsuit
was filed, FacilitySource terminated Woods on March 31, 2014 on the grounds that it discovered
that he had made the following two misrepresentations on his employment application: (1) that he
had earned a high school diploma and (2) that he left his former employer because of a reduction in
work hours. See id.., Ex. 1; Woods. Aff., ¶¶ 21, 22.
Plaintiff Lorenzo began his employment with FacilitySource in October 2005 as a customer
service representative and earned a starting salary of $11 per hour. See Lorenzo Dep., Ex. 20. After
several promotions, Lorenzo was promoted to account manager in March 2008 with an annual
salary of $36,000. See Id.; Lorenzo Aff., ¶ 12. He received several raises that has brought his salary
to $42,700. See Lorenzo Dep., p. 91; Lorenzo Dep., Ex. 20. Lorenzo has received positive work
performance reviews, see id., Exs. 21, 28-30, and he remains employed by FacilitySource.
Plaintiffs allege their situation at work changed for the worse after defendant Wagner was
promoted to Director of Market-Retail in July 2009 and defendant Smith was hired as Vice
President of Client Services in July 2010. See Doc. 68-7, Response to Interrogatory No. 3; Doc. 688, Response to Interrogatory No. 3. Woods alleges that the only promotions he received occurred
prior to 2010 and that he did not receive a merit-based pay increase after 2011. Woods Aff., ¶ 9, 17.
Lorenzo similarly alleges that he did not receive a promotion after 2009 and did not receive a meritbased pay increase after 2011. Lorenzo Aff., ¶ 8, 13.
According to plaintiffs, the result of FacilitySource’s failure to promote them or grant them
pay increases is that they earned lower salaries than did other account managers. Plaintiffs state that
at the time of Woods’s termination, their salaries were the lowest and second lowest among account
managers even though they had more seniority than all other account managers. See Woods Aff., ¶
25; Lorenzo Aff., ¶ 15. Woods contends that he earned less than other account managers because
of racial discrimination, and Lorenzo contends that he earned less than other account managers
because of his association with Woods. Plaintiffs allege that their advancement was impeded by a
lack of support from Smith and Wagner, see Woods Dep. pp. 124-25; Lorenzo Dep., pp. 10-13, 5051, and that Smith discouraged Woods from applying for advancement, see Woods Aff., ¶ 55.
2

FacilitySource responds that when plaintiffs became account managers in 2008 and 2009, a
college degree was not required for the position.

See Woods Dep., pp. 291-92.

In 2010,

FacilitySource implemented minimum qualifications that included a two-year degree or prior
account management experience in the facility maintenance field. See id., Ex. 13. According to
William Hayden, “As the Company grew, it began recruiting more seasoned employees. To attract a
higher level of talent, FacilitySource needed to become more competitive in the market, and this
meant that the Company began to hire Account Managers at a higher rate than previous Account
Managers were being paid.” Hayden Decl., ¶ 8. FacilitySource concedes that account managers
hired from 2010 to 2012 were, on average, paid more those hired between 2005 and 2009. Id., ¶ 9.
Plaintiffs contend that Smith and Wagner discouraged other employees from associating
with Woods. See Woods Dep., p. 176; Woods Aff., ¶ 26 (stating that defendants “encouraged
coworkers to disassociate with me and treated coworkers that did associate with me poorly.”);
Lorenzo Aff., ¶ 17. They further contend that management was more demanding of Woods than
they were of other employees. See Woods Aff., ¶ 26 (“Duane Smith and Jordan Wagner had a
different, higher level of expectation and demands for me.”).
Plaintiffs also claim that Smith and Wagner made negative racial remarks to Woods. Smith
told Woods that “you people are cheeky” and “you people are dramatic” and said something
suggesting that Woods liked fried chicken and Kool-Aid. See Woods Aff., ¶¶ 30, 58. Smith also
commented to Woods that he looked like Dizzy Gillespie, had “nappy” hair, and was a “dark
cloud.” See Woods Dep., pp. 218-20, 224-28. Smith once placed his leg on Woods’s desk in a
sexually suggestive manner. See Woods Aff., ¶ 57. Wagner used the phrase “you people” once
when talking to Woods, see Woods Dep., p. 212-13, and attempted to stop Woods from going to
parts of the building where other employees could go, see Woods Aff., ¶ 34.
According to plaintiffs, they were singled out for exclusion from a company golf outing in
September 2012. Hayden, Smith and Wagner participated and other account managers were invited
to attend, along with many clients of FacilitySource. Doc. 71, Page ID 1160-61. One of those
clients, Family Christian, was an account to which Woods was assigned. Woods Dep., p. 162.
Woods and Lorenzo had expressed interest to Brent Myers, director of human resources, about
attending the golf outing but they were not invited. Id., pp. 165-66.
Plaintiffs filed this suit in June 2013. The complaint asserts claims under Title VII of the
Civil Rights Act of 1964, see 42 U.S.C. § 2000e, et seq., and under 42 U.S.C. § 1981 for racial

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discrimination, race-based association discrimination and a hostile work environment, as well as
parallel claims under state law.
During discovery, FacilitySource obtained information it believes shows that Woods made
material misrepresentations in his job application materials. In a deposition in February 2014,
Woods testified that he graduated from Asheville High School in North Carolina. See Woods Dep.,
p. 12-13. In March 2014, FacilitySource obtained a statement from the Registrar at Asheville High
School stating that Woods did not earn enough credits to graduate and obtained a document from
Woods’s former employer indicating that he was terminated because of a misstatement on his
application. See Hayden Decl., Ex. 1. Defendants were granted leave to file a counterclaim for
fraudulent inducement. The counterclaim alleges that Woods submitted two applications in which
he falsely stated that he had received a high school diploma and that his reason for leaving his
previous employment was a reduction in work hours. According to the counterclaim, FacilitySource
gave Woods an opportunity to rebut the records it had obtained, but he did not respond.
FacilitySource terminated Woods on March 31, 2014. Woods does not challenge his termination in
this lawsuit.
II.

Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is proper if the evidentiary

materials in the record show that there is “no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Longaberger Co. v. Kolt, 586
F.3d 459, 465 (6th Cir. 2009). The moving party bears the burden of proving the absence of
genuine issues of material fact and its entitlement to judgment as a matter of law, which may be
accomplished by demonstrating that the nonmoving party lacks evidence to support an essential
element of its case on which it would bear the burden of proof at trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).
The “mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)

(emphasis in original); see also Longaberger, 586 F.3d at 465. “Only disputed material facts, those
‘that might affect the outcome of the suit under the governing law,’ will preclude summary
judgment.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting Anderson,
477 U.S. at 248). Accordingly, the nonmoving party must present “significant probative evidence”

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to demonstrate that “there is [more than] some metaphysical doubt as to the material facts.” Moore
v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993).
A district court considering a motion for summary judgment may not weigh evidence or
make credibility determinations. Daugherty, 544 F.3d at 702; Adams v. Metiva, 31 F.3d 375, 379
(6th Cir. 1994). Rather, in reviewing a motion for summary judgment, a court must determine
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.” Anderson, 477 U.S. at 251-52.
The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be
viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S.
451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably
find for the plaintiff.” Anderson, 477 U.S. at 252; see Dominguez v. Corr. Med. Servs., 555 F.3d
543, 549 (6th Cir. 2009).
III.

Discussion
A.

Administrative Exhaustion of Title VII Claims

In order to bring a Title VII action in federal court, a plaintiff must (1) timely file a charge of
employment discrimination with the Equal Employment Opportunity Commission and (2) receive
and timely act upon the EEOC’s right-to-sue letter. Puckett v. Tennessee Eastman Co., 889 F.2d
1481, 1486 (6th Cir. 1989) (citing 42 U.S.C. § 2000e-5(f)(1) and McDonnell Douglas Corp. v. Green,
411 U.S. 792, 798 (1973)).

Here, defendants argue that plaintiffs merely completed intake

questionnaires and never filed charges with the EEOC. Defendants note that the charge forms of
record were not signed.
Woods and Lorenzo both signed and filed intake questionnaires with the EEOC in March
2013.

See Doc. 68-27.

The completed questionnaires described the basis of the alleged

discrimination and alleged that Smith and Wagner were the individuals responsible. Accompanying
the questionnaires were signed, verified letters, see id. (declaring under penalty of perjury that the
letters were true and correct), providing more details of the alleged discrimination, identifying
plaintiffs’ legal counsel, and requesting that the EEOC treat the questionnaires and letters as charges
of discrimination.
Plaintiffs then received letters from the EEOC stating, “Because the document you
submitted to us constitutes a charge of discrimination, we have complied with the law and notified
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the employer that you filed a charge.” Doc. 68-28. The letters provided plaintiffs with the EEOC
charge number that each of their charges had been assigned. The letters further stated that the
EEOC would begin its investigation. Attached to these letters were charge forms that the EEOC
had itself filled out (based upon the information plaintiffs had provided) and that plaintiffs were
asked to sign and return. See id. There is no evidence that plaintiffs did sign and return the charge
forms. In late May 2013, the EEOC issued right-to-sue letters to both plaintiffs. See Doc. 68-29.
The court finds that plaintiffs satisfied the requirement of filing a charge. It is true that a
questionnaire alone will not constitute the filing of a charge if it does not satisfy § 2000e-5(b)’s
requirements of a “writing under oath or affirmation” and notice to the employer of the claim being
alleged. See Pijnenburg v. W. Ga. Health Sys., Inc., 255 F.3d 1304, 1306-07 (11th Cir. 2001); Park v.
Howard Univ., 71 F.3d 904, 908-09 (D.C. Cir. 1995); Proffit v. Keycom Electronic Publ’g, 625
F.Supp. 400, 403 (N.D. Ill. 1985). Here, however, plaintiffs provided sworn signatures in the letters
they submitted with the questionnaires and the EEOC gave FacilitySource notice of the charges.
The materials submitted by plaintiffs requested agency action and were sufficiently specific as to
easily satisfy the requirement in 29 C.F.R. § 1601.12(b) that a charge be “sufficiently precise to
identify the parties, and to describe generally the action or practices complained of.” Moreover, the
EEOC treated the plaintiffs’ submissions as charges of discrimination. These facts place this
situation well within the body of case law finding that the charge requirement is met by a
questionnaire and accompanying materials when together they satisfy all of the legally-required
elements of a charge. See e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1321 (11th Cir. 2001);
Semsroth v. City of Wichita, 304 Fed. App’x 707, 713-14 (10th Cir. 2008); Tucker v. Howard Univ.
Hosp., 764 F.Supp.2d 1, 7-8 (D. D.C. 2011); see also Federal Express Corp. v. Holowecki, 552 U.S.
389 (2008). That plaintiffs did not sign the charge forms later sent to them by the EEOC does not
change the conclusion, because they had already verified the earlier submissions. See Wilkerson, 270
F.3d at 1317 (“At the end of her intake questionnaire, Wilkerson signed the following statement: ‘I
swear or affirm under penalty of perjury that the provided information is truthful and correct to the
best of my knowledge.’ . . . This declaration plainly satisfies the verification requirements of Title VII
and EEOC regulations.”).
Defendants make one other argument, this one based on the scope of the charge. “As a
general rule, a Title VII plaintiff cannot bring claims in a lawsuit that were not included in his EEOC
charge.” Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010) (citing 42 U.S.C. §
2000e-5(f)(1)). Defendants argue that Lorenzo’s charge form related to gender discrimination and
6

not race-based association discrimination. This argument is not persuasive. The charge form, which
the EEOC prepared, did in fact incorrectly characterize the nature of charge as having a gender
component. See Doc. 68-28. However, the form additionally and accurately stated that the alleged
discrimination related, at least in part, to Lorenzo’s association with Woods. More importantly,
Lorenzo’s questionnaire and accompanying letter expressly complained of race-based association
discrimination. See Doc. 68-27 (averring that he was subjected to discrimination “due to my
association with an African-American co-worker). Thus, Lorenzo gave proper notice of the nature
of the claims he asserts in this lawsuit.
B.

McDonnell Douglas Framework

Plaintiffs assert claims under Title VII and Ohio Revised Code § 4111.17 for wage
discrimination. 1 Title VII prohibits an employer from “discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual's race . . . .” 42 U.S.C. § 2000e–2(a)(1). Title VII also forbids discrimination on the basis
of association with a protected party. Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009).
A claim of discrimination may be proven using either direct or circumstantial evidence.
Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir. 2013). “Direct evidence is proof that, if
believed, compels the conclusion that unlawful discrimination was at least a motivating factor in the
employer's actions.” Id. (internal quotation marks omitted). Where, as here, there is an absence of
direct evidence of discrimination, courts apply the burden-shifting analysis of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Davis v. Cintas Corp., 717 F.3d 476, 491 (6th Cir. 2013).
Under McDonnell Douglas a plaintiff must first make out a prima facie case of discrimination.
Davis, 717 F.3d at 491. To do so, plaintiff must establish that: (1) he is a member of a protected
class, (2) he was subject to an adverse employment action, (3) he was qualified for the position, and
(4) other, similarly situated and outside the protected class, were treated differently. Loyd v. Saint
Joseph Mercy Oakland, 766 F.3d 580, 589 (6th Cir. 2014).
If the plaintiff establishes a prima facie case, the burden of production shifts to the employer
to articulate some legitimate, nondiscriminatory reason for the employment decision. Id. at 590.
“The plaintiff then bears the burden of demonstrating that the proffered reason was in fact a pretext
designed to conceal unlawful discrimination. Pretext can be shown by offering evidence that (1) the
The complaint does not assert a claim under the federal Equal Pay Act, 29 U.S.C. § 206(d), though
claims under the Ohio statute are analyzed in the same manner as claims brought under the federal
Act. See Birch v. Cuyahoga Cnty. Probate Ct., 392 F.3d 151, 161 n. 6 (6th Cir. 2004); Hollowell v.
Society Bank & Trust, 78 Ohio App.3d 574, 605 N.E.2d 954 (Ohio App. 1992).
1

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employer’s stated reason had no basis in fact, (2) the stated reason did not actually motivate the
employer, or (3) the stated reason was insufficient to warrant the adverse employment action.” Id.
(citing Wexler v. White’s Fine Furniture, Inc.., 317 F.3d 564, 576 (6th Cir. 2003) (en banc)).
C.

Wage Discrimination

Pay disparities between a black employee and a similarly situated white employee can serve
as the basis for a Title VII claim. Bazemore v. Friday, 478 U.S. 385, 395–96 (1986). The analysis of
a Title VII wage discrimination claim is essentially the same as it would be under the Equal Pay Act.
Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir. 1981). A plaintiff may establish a prima facie
case of wage discrimination by showing an employer paid higher wages to an employee outside of
the protected class for substantially equal work. Kovacevich v. Kent State Univ., 224 F.3d 806, 826
(6th Cir. 2000). It is then the employer’s burden to establish that the wage differential is justified by
one of the four affirmative defenses set forth in the Equal Pay Act. Beck-Wilson v. Principi, 441
F.3d 353, 369 (6th Cir. 2006). These defenses are: (1) a seniority system; (2) a merit system; (3) a
system which measures earnings by quantity or quality of production; or (4) a differential based on
any factor other than race. 29 U.S.C. § 206(d)(1). If the employer establishes an affirmative defense,
the employee then bears the burden of producing evidence sufficient to create a genuine dispute as
to whether the employer’s proffered reason is pretextual. Balmer v. HCA, Inc., 423 F.3d 606, 613
(6th Cir. 2005).
Here, defendants do not dispute that plaintiffs are able to make out a prima facie. Before the
court is a chart (hereinafter the “Account Manager Chart”) produced by FacilitySource during
discovery showing that 16 other account managers, all Caucasian, earned more than plaintiffs did at
various points in the time from when plaintiffs became account mangers until the filing of this suit.
See Doc. 71, Page ID 1158.
Defendants’ motion for summary judgment is based on its assertion of an affirmative
defense. They argue that the wage differential between plaintiffs and other account managers is
based on a merit system of pay.

Defendants argue that the merit system’s impact became

pronounced as a result of FacilitySource’s effort in 2010 to attract better talent to the position by
increasing the qualifications and offering better pay. They argue that plaintiffs were hired in 2005
when the company had just begun operating and that other employees who became account
managers in the 2005 to 2009 timeframe and had similar qualifications as plaintiffs earned wages
similar to, and in some cases less than, what plaintiffs earned. To the extent there are exceptions to
the general rule (i.e., employees who became account managers before 2010 but earned more than
8

plaintiffs), defendants argue that those exceptions do not demonstrate pretext. They argue that the
exceptions instead represent individuals whose credentials, in terms of education and experience,
exceeded those of plaintiffs and who were thus paid more than plaintiffs.
The court finds that defendants have established an affirmative defense. FacilitySource grew
rapidly and in 2010 implemented minimum qualifications that included a two-year degree or prior
account management experience in the facility maintenance field. See Woods Dep., Ex. 13; Hayden
Decl., ¶ 4. FacilitySource began recruiting a “higher level of talent . . . and this meant that the
Company began to hire Account Managers at a higher rate than previous Account Managers were
being paid.” Id., ¶ 8.
The Account Managers Chart and accompanying materials confirms FacilitySource’s
explanation concerning wage differentials. The Chart lists 26 individuals who were hired at the
account manager position from August 2005 to the filing of the lawsuit in June 2013. 2 See Doc. 71,
Page ID 1158. There were 7 individuals, outside the protected class and hired before or around the
same time as plaintiffs, who earned less than plaintiffs did, and there was one other account manager
who earned a wage in between Woods’s and Lorenzo’s salaries. Lorenzo became an account
manager in April 2008 and Woods in October 2009. Two other individuals – Joshua Dean and
Zachary Stewart – became account managers in that time span, and they earned less than plaintiffs.
Dean and Stewart earned $37,500 and $36,100 respectively, while Lorenzo earned $36,000 when he
was first promoted to account manager and Woods earned $40,000. See id.; Woods Aff., ¶ 13;
Lorenzo Aff., ¶ 12. Through pay increases, Lorenzo’s salary exceeded that of Dean and Stewart.
See Doc. 71, Page ID 1158.
Woods earned $42,200 when this suit was filed and Lorenzo earned $42,700. Individuals
who were hired as account managers from December 2010 to June 2012 earned wages from $46,700
to $60,000. Id. The qualifications of the individuals hired from December 2010 to June 2012
exceeded plaintiffs’ qualifications in terms of educational background and prior account
management experience, see Second Hayden Decl., ¶¶ 2-10, and plaintiffs do not attempt to
demonstrate otherwise. 3

There is a 27th individual, Brian Warner, for whom FacilitySource did not have data.
For example, account manager Kitty Wood, who was hired in 2011, had a degree in business
management and ten years of management experience. Account manager Jill Eberhardt, who was
hired in 2012, had a degree in business administration and fifteen years of account management
experience.
2
3

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Plaintiffs instead base their argument on seniority.

Plaintiffs argue that defendant’s

explanation of its pay structure is pretextual because plaintiffs had more seniority than the other
account managers but, at the time the lawsuit was filed, earned less than all except Stewart. 4 This
argument stems from plaintiffs’ opinion that seniority should be the predominant factor in how
FacilitySource compensates its account managers. See Woods Aff., ¶ 25; Lorenzo Aff., ¶ 15. But
this opinion is only that – an opinion about how FacilitySource should run its business. The record
establishes that FacilitySource determined that seniority at the company would not be a substantial
factor in calculating an account manager’s salary; rather, relevant education and business experience
are given greater weight. See Hayden Decl., ¶¶ 8, 18, 19; Second Hayden Decl., ¶¶ 2-18 (reviewing
pay and qualifications of various account managers).

In the absence of evidence of racial

discrimination in FacilitySource’s selection of these factors in making salary decisions, the court will
not second guess the employer’s business judgment. See Udoewa v. Plus4 Credit Union, 754
F.Supp.2d 850, 878 (S.D. Tex. 2010) (“[C]ourts defer to the business judgment of the employer
unless there is strong evidence of discrimination.”) (citing cases).
Plaintiffs further argue that there are exceptions to defendants’ purported pay system –
exceptions that show that the system has no basis in fact. The evidence, however, does not support
plaintiffs’ argument. FacilitySource did hire some account managers in 2007 and 2008 who earned
more than plaintiffs. Plaintiffs identify Stephen Zerucha, who was hired in October 2007 and
earned a salary of $46,800, and Josh Holecko, who was hired in June 2007 and earned $60,000. The
record demonstrates that both Zerucha and Holecko had much stronger credentials than those of
plaintiffs. Zercucha attended Ohio State University and Columbia University, where he studied
business (but did not earn a degree), and he had served as a general manager for several companies,
was an operating partner in a business, and had experience training employees. See Doc 71-2,
PAGE ID 1185-86.

Holecko held a business administration degree from Youngstown State

University and had many years of experience in sales representative and account manager positions
at other companies. Id., PAGE ID 1182-83. Woods, in contrast, did not have a high school
diploma (though FacilitySource believed that he did) and lacked experience in account management.
Plaintiffs’ attempt to argue that Stewart himself was discriminated against because of his
association with Woods is not supported by the evidence. Stewart stated that he was friends with
Woods for a period, but that he stopped interacting with Woods because of a personality conflict.
Stewart Dep., pp. 29-31. Stewart testified that he was not treated differently by Smith and Wagner
because of his friendship with Woods, nor was he encouraged to disassociate himself from Woods.
Id., pp. 31-32, 49.
4

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See Woods Dep. Ex. 1. Lorenzo held a college degree, but it was in the unrelated field of fine arts,
and he likewise lacked experience in account management. See Lorenzo Dep., Ex. 22. Far from
demonstrating pretext, these exceptions show that FacilitySource followed a merit system even
before 2010.
Finally, plaintiffs argue that a wage discrimination claim is established by looking to the
comparator of David Sigmund. Sigmund began working for FacilitySource in 2007 as a customer
service representative and at a salary of $20,800. See Second Hayden Decl., ¶ 11. He has a high
school diploma and attended college, studying communications, but did not receive a college degree.
See Doc. 71, PAGE ID 1166. He lacked account management experience prior to working for
FacilitySource but had some experience in sales, in being a supervisor, and in training employees.
See id., PAGE ID 1167. Sigmund was promoted to account manager in January 2013 at a salary of
$43,004. See id., Page ID 1158.
The court finds that the wage differential between Lorenzo and Sigmund to be too minimal
to support a wage discrimination claim. Sigmund earned $300 per year more than Lorenzo, which
amounts to a difference of seven-tenths of one percent.

Courts have found that marginal

differences in salaries, standing alone, are insufficient to sustain a claim of wage discrimination. See,
e.g., Sims-Fingers v. City of Indianapolis, 493 F.3d 768, 771 (7th Cir. 2007); Brousard-Norcross v.
Augustana College Assoc., 935 F.2d 974, 979 (8th Cir. 1991); Flockhart v. Iowa Beef Processors,
Inc., 192 F.Supp.2d 947, 971-72 (N.D. Iowa 2001). In Sims-Fingers, the plaintiff, a female earned
$34,374 as a city park manager, while a male park manager earned $35,000. The Seventh Circuit
held that the defendant was entitled to summary judgment against plaintiff’s Equal Pay Act claim:
“The smaller the differential, the more likely it is to be justified by a small difference in the work.
The pay differential between the plaintiff and [defendant] is less than 2 percent, and we do not see
how anyone could say that her work and his are so far equal that it should be inferred that he is
overpaid relative to her.” 493 F.3d at 771. Accord Flockhart, 192 F.Supp.2d at 971 (holding that an
hourly wage differential of five cents did not establish an Equal Pay Act claim).
The court finds too that Woods has not established a claim. While the differential between
Woods and Sigmund (1.87%) is larger than the differential between Lorenzo and Sigmund (0.7%), it
is still equivalent to the differential in Sims-Fingers (1.79%) that was found to be insufficient to
establish a claim. Moreover, the differential is minimal when comparing the salaries of plaintiffs and
Sigmund to the other account manager who is an appropriate comparator, Zachary Stewart. Like
plaintiffs and Sigmund, Stewart started as a customer service representative at FacilitySource, earning
11

$19,760. See Second Hayden Decl., ¶ 14. And like plaintiffs and Sigmund, Stewart was internally
promoted to account manager, earning $36,100 when this suit was filed. See id., ¶ 15; Doc. 71,
PAGE ID 1158. The wage differential between Woods and Stewart is 14%. Given the small
comparator class and the variance that existed between Woods and Stewart, the differential between
Woods and Sigmund does not establish wage discrimination. See Brousard-Norcross, 935 F.2d at
979 (holding that wage discrimination claim was not established where the differential between
plaintiff and one comparator was marginally small and plaintiff earned more than another
comparator); Flockhart, 192 F.Supp.2d at 971 (holding that claim was not established where
comparator class was small and the employer’s pay structure allowed for pay variation).
Even if the differential in pay between Woods and Sigmund could be viewed as more than
minimal, the record demonstrates that FacilitySource was justified in paying Sigmund slightly more
than Woods. Unlike Woods, Sigmund attended college and had some prior experience in sales and
in supervising and training other employees. Given that such education and experience was relevant
to FacilitySource’s hiring and wage decisions, see Hayden Decl., ¶ 8; Second Hayden Decl., ¶¶ 2-18,
defendants have established a legitimate basis for the wage differential between Woods and
Sigmund. See Brousard-Norcross, 935 F.2d at 979 (Equal Pay Act not violated by marginal wage
differential where employer had “legitimate factors upon which to base salary differentials”); Amos
v. McNairy Cnty., 997 F.Supp.2d 889, 898 (W.D. Tenn. 2014) (holding that wage discrimination
claim is not established where plaintiff cannot show that “‘he and his proposed comparators were
similar in all relevant respects’”) (quoting Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 751 (6th
Cir. 2012)).
Thus, defendants are entitled to summary judgment on plaintiffs’ wage discrimination claims.
D.

Other Alleged Discriminatory Actions

In addition to alleging wage discrimination, plaintiffs assert that defendants discriminated
against them by: failing to promote them, failing to give them pay raises, decreasing Woods’s job
responsibilities, and “isolating” them.
Employment discrimination claims require a showing of an adverse employment action,
which is defined as a “materially adverse change in the terms and conditions of [plaintiff’s]
employment.” Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). A “bruised ego” or a
“mere inconvenience or an alteration of job responsibilities” does not constitute an adverse
employment action. Smith v. City of Salem, Ohio, 378 F.3d 566, 575 (6th Cir. 2004) (internal
quotation marks omitted). “Examples of adverse employment actions include firing, failing to
12

promote, reassignment with significantly different responsibilities, a material loss of benefits,
suspensions, and other indices unique to a particular situation.” Id. at 575-76 (citing cases).
1.

Failure to Promote

A plaintiff asserting a failure to promote claim must demonstrate that: (1) he is a member of
a protected class; (2) he applied for and was qualified for a promotion; (3) he was considered for and
was denied the promotion; and (4) an individual of similar qualifications who was not a member of
the protected class received the job at the time plaintiff’s request for the promotion was denied.
White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir. 2005).
Plaintiffs allege that after they became accounts managers, defendants wrongfully failed to
promote them to the position of senior account manager. Defendants argue that plaintiffs are
unable to establish a prima facie case because Woods was not qualified for the position and Lorenzo
did not apply for it.
The court agrees with defendants and finds that plaintiffs cannot establish a prima facie case
in support of their failure to promote claim. Undisputed evidence establishes that among the
prerequisites of the senior account manager position was a bachelor’s degree, “preferably in Business
or [a] related field.” Second Hayden Decl., Ex. 1. Woods does not have such a degree, see Woods
Aff., ¶ 23, and thus was not qualified for the position.
Lorenzo admits that he never applied for a senior account manager position. See Lorenzo
Dep., pp. 10-11; Lorenzo Aff., ¶ 22. However, he contends that the position was not posted. See
Lorenzo Dep., pp. 10-11; but see Myers Dep., pp. 52-53 (human resources director testifying that
openings in positions were posted internally by email). Lorenzo argues that when the position was
filled, he was passed over in favor of two individuals, Kathleen Kinzig and Bill Esposito, whom he
claims had lesser qualifications than he did. Lorenzo Dep., pp. 10-15.
Defendants are entitled to summary judgment on Lorenzo’s failure to promote claim
because he cannot satisfy the fourth element of his claim. With respect to Kinzig, FacilitySource has
demonstrated that it never hired her as a senior account manager. Kinzig worked as an account
manager, earning $42,600 at the time of her departure in December 2010. See Doc. 71, Page ID
1158. Despite Lorenzo’s apparent belief that she was made senior account manager during a
restructuring, see Lorenzo Dep., pp. 10-11, Kinzig was not promoted to senior account manager.
See Second Hayden Decl., ¶ 20. With respect to Esposito, FacilitySource has demonstrated that he
had better qualifications, namely five years of sales experience, than did Lorenzo, who had no sales

13

experience. See id., ¶ 21; Lorenzo Dep., pp. 20-21 (stating that he understood that FacilitySource
did not promote him to senior account manager because of his lack of “face time” with clients).
2.

Failure to Receive a Raise

Plaintiffs allege that they were discriminated against because they did not receive merit raises.
As defendants point out, this assertion is unsupported and is contradicted by the record. Plaintiffs
allege that things changed for the worse once Wagner and Smith were put in management positions
in July 2009 and July 2010 respectively. However, FacilitySource gave merit raises to Woods in April
2010, April 2011 and June 2012. See Woods Dep., Ex. 7; Jividen Decl., ¶ 2. And FacilitySource
gave merit raises to Lorenzo in April 2010, June 2012 and May 2014. See Lorenzo Dep., Ex. 20;
Jividen Decl., ¶¶ 2, 3. Plaintiffs have not attempted to show that other account managers received
raises at times when plaintiffs did not. See Jividen Decl., ¶ 4 (stating that FacilitySource gave no
merit raises to its employees in 2013).
3.

Demotion in Job Responsibilities

A reduction in material job responsibilities may qualify as an adverse action. See Smith, 378
F.3d at 575-76. Without much explanation, plaintiffs allege in their brief that Woods suffered a
“significant demotion in responsibilities.” Doc. 68, p. 16. Woods’s deposition testimony on the
matter was not entirely clear, but he indicated that he was removed from one or more of the client
accounts to which he was assigned. See Woods Dep., pp. 107-112. In an affidavit, Woods identifies
two client accounts from which he was removed – SCI and TCP. See Woods Aff., ¶ 38.
With respect to SCI, plaintiffs are unable to show that FacilitySource took an adverse action
against Woods. Woods admits that he voluntarily took himself off of the account: “SCI wanted a
dedicated account manager, and my understanding was that they wanted me to be their dedicated
Account Manager, but I wanted to manage more than that one account, so I did not remain as their
dedicated Account Manager.” Woods Aff., ¶ 38; see also Doc. 68, p. 17 (statement in plaintiffs’
brief that Woods “voluntarily left one account because [the client] wanted a dedicated [Account
Manager]”). Because the reduction in job responsibilities in this instance resulted from Woods’s
own choice, it does not constitute an adverse employment action taken by the employer.
With respect to TCP, plaintiffs are unable to show that the action resulted in a materially
adverse change in the terms and conditions of Woods’s employment. Woods states that he was
removed from the account for the purported reason that the client was not satisfied with him and
asked for him to be removed. See Woods Aff., ¶ 38; Woods Dep., p. 110. Woods could not say

14

whether this reason was accurate, but did state that TCP was “unhappy with FacilitySource in
general” and ended its account with FacilitySource. See Woods Aff., ¶ 38; Woods Dep., p. 110.
After Woods was removed from the TCP account, Smith assigned Woods to two additional
accounts and assigned him to a backup role for two other accounts. See Woods Dep., pp. 115-18.
The two new accounts concerned “lower profile clients” than TCP in terms of store count, but
Woods testified that the new assignments “worked out well” and his overall job demands were
“consistent” Id., pp. 115, 118. “It’s consistent because it’s deliverables, it’s a client. They have a
lower store count, but that doesn’t change their level of expectations for us to deliver or execute.
And then also, too in my backup role to Aeropostale and GNC it’s consistent.” Id., p. 118. So
while his client assignments changed, Woods’s job responsibilities still included handling several
client accounts, in both primary and backup roles. At most then, Woods was subjected to an
alteration in his responsibilities and not to a materially adverse change in the terms and conditions of
his employment. For that reason, his claim fails. See Smith, 378 F.3d at 575.
4.

“Isolation” of Plaintiffs 5

Plaintiffs allege that they were “isolated, tracked, and not allowed to participate in events”
and that their “advancement has been impeded though lack of support and disassociation.” Doc.
68, p. 16. In connection with this allegation, plaintiffs contend that: defendants discouraged coworkers from associating with plaintiffs, defendants had a higher level of expectations for Woods
and kept closer track of him than of other workers; Woods was not allowed to take breaks in a
public area on the second floor of their office building; defendants steered clients away from
interacting with plaintiffs when clients visited the office; defendants did not “support” plaintiffs; and
plaintiffs were excluded from a company golf outing in September 2012.
The court finds that a significant portion of the plaintiffs’ purported evidence in support of
their claim of isolation has not been submitted in a form sufficient to oppose the motion for
summary judgment. See Fed. R. Civ. P. 56(c)(4). Certain evidence submitted by plaintiffs is
speculative, see Dunham Aff., ¶ 10 (co-worker stating in affidavit, without providing a foundation,
“I could tell if I had associated with Nick and Gary, I would not have been promoted.”), and other
evidence is hearsay, see Myers Dep., p. 45 (testifying that another employee told him that she had
concerns about Wagner telling her to check in on Woods’s whereabouts). Further, plaintiffs cite to
Plaintiffs present the allegations of isolation as supporting both a traditional discrimination claim
as well as a hostile work environment claim. The court will analyze the allegations under both legal
theories.
5

15

statements in affidavits that merely restate some of the allegations being made. See Emmons v.
McLaughlin, 874 F.2d 351, 358 (6th Cir. 1989) (holding that affidavits that “merely repeated the
vague and conclusory allegations” are “insufficient to generate a genuine issue of material fact.”).
For instance, in support of the proposition that defendants discouraged coworkers from associating
with plaintiffs, Woods states, without example or elaboration, “Defendants also encouraged
coworkers to dissociate with me and treated coworkers that did associate with me poorly.” Woods
Aff., ¶ 26; accord Lorenzo Aff., ¶ 17. For the proposition that defendant expected more out of him
than of other account managers, Woods states, again without example or elaboration, that “Duane
Smith and Jordan Wagner had a different, higher, level of expectations and demands for me.”
Woods Aff., ¶ 26. See also Woods Aff., ¶¶ 39, 61 (restating the assertions that Woods did not
receive “support” from defendants and was “tracked” by defendants); Lorenzo Aff., ¶ 18, 22
(restating the assertions that Woods was “treated worse than other employees” and that Lorenzo did
not receive “support” from defendants); Dunham Aff., ¶ 10 (co-worker stating, “I knew they
[Woods and Lorenzo] were treated differently”). These blanket assertions appear in affidavits that
were submitted after a deposition of Woods was taken in which he did not raise the assertions even
upon being asked if there was “anything you want to add” to the claim of discrimination beyond
matters relating to compensation. Woods Dep., p. 107.
Certain other evidence does not stand for the factual proposition for which plaintiffs assert
it does. For instance, plaintiffs cite the deposition testimony of account manager Zach Stewart for
the proposition that defendants told co-workers not to associate with Woods. But Stewart testified
to the opposite -- that defendants did not discourage him from associating with Woods. See Stewart
Dep., pp. 49, 61, 68. Plaintiffs also cite Stewart’s deposition for the proposition that Wagner
harassed individuals who were friends with Woods, but Stewart testified that Wagner did not treat
him differently because of his friendship with Woods. See id., pp. 31, 46-47. Finally, plaintiffs
contend that defendants “isolated” plaintiffs, but Stewart testified that he was not told to stop
interacting with plaintiffs and did not observe them being isolated. See id., pp. 49, 60-61, 68, 70.
The court now turns to the evidence that is in admissible form and does at least partially
support plaintiffs’ allegations.

Plaintiffs have submitted evidence that one employee, market

coordinator Albrey Mann, was told by Smith, “[P]eople see who you talk to and who you hang
around.” Mann Aff., ¶ 12. Mann believed that Smith meant this statement to refer to Woods and
Lorenzo. See id. Even so, Mann does not state or even suggest that she actually stopped interacting
with plaintiffs. Further, even if Mann did stop interacting with Woods and Lorenzo, plaintiffs have
16

not explained how Smith’s statement to a lone employee resulted in a materially adverse change in
the terms and conditions of their employment. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
761 (1998) (holding that an adverse employment action “constitutes a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits”).
In that same vein, Mann states that she saw Wagner “make a scene about where Gary was
one day when he was not at his desk.” Mann Aff., ¶ 10. Plaintiffs argue that this occurrence shows
that defendants “tracked” plaintiffs. However, this single event does not establish that Woods was
subjected to a materially adverse change in the terms and conditions of his employment. See Foster
v. Michigan, 573 Fed. App’x 377, 394 (6th Cir. 2014) (“De minimis actions are not materially
adverse.”).
Plaintiffs next cite the affidavit of an employee, Kevin Dunham, who worked at Facility
Source for two months in 2012. He states that he witnessed Woods working “extra hours” and
taking calls outside of work. Dunham Aff., ¶ 10. Plaintiffs cite the affidavit for the proposition that
defendants had a higher level of expectations for Woods. However, plaintiffs have not attempted to
establish that Woods was the only employee who worked extra hours or took calls outside of work.
Nor have they attempted to show that defendants required Woods to do so. The affidavit simply
states that Dunham witnessed Woods doing these things; plaintiffs have not shown, even by way of
Woods’s own deposition testimony, that Woods was required to perform extra work.
Next, plaintiffs have submitted evidence that Smith told Woods not to go to a public area on
the second floor of the building where employees commonly took breaks. See Woods Dep., p. 171.
But plaintiffs have failed to establish that Woods was the only employee to whom Smith gave this
instruction. See id., pp. 175-76 (admitting that he did not know if Smith told other employees not to
take breaks on the second floor). More importantly, by Woods’s own concession, this instruction
was overturned by human resources director Brent Myers, who decided that employees could still
take breaks on the second floor. See id., pp. 173-74. In that regard, plaintiffs have again failed to
show how the alleged discriminatory conduct resulted in a materially adverse change in the terms
and conditions of their employment. 6

Plaintiffs have not submitted evidence indicating for how long Smith’s instruction that Woods not
take breaks on the second floor lasted. In any event, plaintiffs do not allege that Woods was unable
to take any breaks whatsoever in the time period from when Smith gave his instruction until Myers
reversed it.
6

17

Plaintiffs next cite evidence that defendants did not introduce clients to Woods. The
evidence is sparse on this point. Woods states without further elaboration, “When clients were
brought into the office, they were often walked past me unless the client asked to talk to me or the
client was black.” Woods Aff., ¶ 26. Again, plaintiffs fail to explain how this conduct impacted the
terms and conditions of Woods’s employment. Woods does not assert that the clients at issue were
ones that were, or could have been, assigned to him.
Returning to the assertion that defendants did not support plaintiffs, Woods testified that he
once had a client for whom he inquired of Smith about the client’s eligibility to participate in a
couple of incentive programs that FacilitySource was running. See Woods Dep., pp. 144-48 (lighting
program and snow and ice management program). Woods stated that Smith initially did not
respond to his inquiry and that Smith later said that management had pre-determined who could
participate in the lighting program. Id., pp. 145, 202. On a more general level, Woods and Lorenzo
both testified that defendants did not come to talk to them about how their work was going or how
they could help plaintiffs in their work. Id., p. 145 (stating that defendants did not have a proper
“level of engagement”); Lorenzo Dep., pp. 49-52.
The court finds that the testimony concerning an alleged lack of support from management
does not establish a prima facie case of discrimination. Lorenzo testified that he and Woods were not
the only ones that defendants failed to support. See Lorenzo Dep., pp. 50, 136-39 (stating that
defendants also did not interact with Caucasian account manager Rick Edwards and Caucasian
market coordinator Albrey Mann).

Further, plaintiffs testified that they were successful in

performing their job duties, despite the alleged lack of support, and that they were independent
workers who did not need much support and could communicate important information to
management in other ways. See Woods Dep., pp. 116, 148, 280-81, 286; Lorenzo Dep., pp. 52, 55,
117, 145. Indeed, the record demonstrates that FacilitySource expected “autonomy” from its
account managers. See Woods Dep., Ex. 11, PAGE ID 509 and Lorenzo Dep., Ex. 30, PAGE ID
626 (FacilitySource’s performance review form that included as an area of evaluation the category of
“autonomy,” which included the ability to work “independently” and “with a minimum of followup”; Woods and Lorenzo self-scored themselves as “outstanding” in this category). Plaintiffs may
not have preferred defendants’ management style, but they have not demonstrated that the “lack of
engagement” materially altered their terms and conditions of employment. See Primes v. Reno, 190
F.3d 765, 767 (6th Cir. 1999) (an employment action is not materially adverse simply because it
made the employee unhappy).
18

Finally, plaintiffs claim that their exclusion from a golf outing in September 2012 was an
actionable act of discrimination. This assertion is unavailing. Plaintiffs contend in their brief that
they were the only account managers not invited to attend the outing, but the evidence demonstrates
that at least five other account managers, each Caucasian, were not invited to attend. Compare Doc.
71, PAGE ID 645 and 737 (lists of invitees) with Doc. 71, PAGE ID 1158 (list of account
managers). Thus, of the 13 account managers employed as of September 2012, 7 were not invited:
Gary Woods, Nicolas Lorenzo, Jill Eberhardt, Mark Malenik, June Tracy, Kitty Wood, and Stephen
Zerucha. 7 See id.
Further, plaintiffs have not shown that their exclusion from the golf outing was an adverse
employment action. Plaintiffs stated in their affidavits that being excluded from the golf outing
limited their networking opportunities, even though plaintiffs did not testify as such in their
depositions. See Woods Aff., ¶ 36; Lorenzo Aff., ¶ 20. With neither plaintiff having provided any
further explanation in their affidavits as to how the exclusion limited their networking opportunities,
it is difficult to see how exclusion from one event caused a materially adverse change in the terms
and conditions of their employment, particularly when defendants have demonstrated that the golf
outing was followed by a dinner that both plaintiffs were invited to and did in fact attend. See
Lorenzo Dep., p. 128.
In sum, the claims concerning the various acts of “isolation” do not establish a prima facie
case of discrimination.
E.

Hostile Work Environment

Plaintiffs have brought claims under Title VII and § 1981 for hostile work environment.
These claims are analyzed under the a five-factor test by which plaintiffs must demonstrate that: (1)
they belonged to a protected group, (2) were subject to unwelcome harassment, (3) the harassment
was based on race, (4) the harassment was sufficiently severe or pervasive to alter the conditions of
employment and create an abusive working environment, and (5) the defendant knew or should
have known about the harassment and failed to act. Moore v. KUKA Welding Sys. & Robot Corp.,
171 F.3d 1073, 1078-79 (6th Cir. 1999).
Defendants focus on the third and fourth elements in their motion for summary judgment.
“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the
In the chart found at Doc. 71, PAGE ID 737, David Sigmund is listed as an invitee to the golf
outing and his position is labeled as account manager. However, it is undisputed that he did not
become an account manager until January 2013. See Doc. #71, PAGE ID 1158 and 1346.

7

19

circumstances.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). The court should consider the
totality of harassment “by all perpetrators combined” rather than “divid[ing] and categoriz[ing] the
reported incidents.” Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999). Even so,
“the third element limits the scope of this analysis: only harassment based on the plaintiff’s race may
be considered.” Williams v. CSX Transp. Co., Inc., 643 F.3d 502, 511 (6th Cir. 2011). “A plaintiff
may prove that harassment was based on race by either (1) direct evidence of the use of race-specific
and derogatory terms or (2) comparative evidence about how the alleged harasser treated members
of both races in a mixed-race workplace.” Id.
Plaintiffs contend that defendants “interacted negatively on a regular basis with Plaintiffs,”
Doc. 68, p. 19, as well as engaged in racially-offensive conduct. With regard to negative interactions,
plaintiffs refer to the allegations of isolation discussed above. With regard to racially offensive
remarks by defendant Wagner, plaintiffs have submitted evidence that he used the phrase “you
people” once when talking to Woods. Woods Dep., p. 212-13. As to defendant Smith, plaintiffs
submit evidence that Smith told Woods that “you people are cheeky” and “you people are dramatic”
and said something suggesting that Woods liked fried chicken and Kool-Aid. Woods Aff., ¶¶ 30, 58.
They also contend that Smith made separate comments over the years to Woods that he looked like
Dizzy Gillespie, had “nappy” hair, and was a “dark cloud.” See Woods Dep., pp. 218-20, 224-28.
Further, Smith once placed his leg on Woods’s desk in a sexually suggestive manner. See Woods
Aff., ¶ 57. And Smith once rubbed Woods’s head in his chest and later commented about how hair
coloring dye from Woods’s hair had rubbed off on Smith’s shirt. See Woods Dep., pp. 191-92.
The court will begin its analysis by identifying alleged treatment for which plaintiffs have not
created a genuine issue of fact that it was based on race. Defendants correctly point out that this
includes much of the alleged harassment, particularly the “negative interactions.”

The only

allegation of isolation that has even minimal support as being racially-based is that defendants often
walked client past Woods “unless the client asked to talk to [Woods] or the client was black.”
Woods Aff., ¶ 26. Plaintiffs have not submitted evidence, either direct or comparative, to support
an inference that the remaining alleged acts of isolation were race-based. See Lorenzo Dep., pp. 50,
136-39 (stating that defendants did not interact with Caucasian account manager Rick Edwards and
Caucasian market coordinator Albrey Mann); Doc. #71, PAGE ID 645 and 737 (showing that five
Caucasian account managers were not invited to the September 2012 golf outing; Woods Dep., pp.
175-76 (conceding that he did not know if Smith told other employees not to take breaks on the
second floor).
20

Turning to the alleged racially-offensive remarks, the court finds that a jury could find that
each was based on race. The only remark challenged by defendants at summary judgment is the
“you people” comment made by Wagner.

It is true that a “you people” statement can be

ambiguous. See Arnold v. Marous Bros. Constr., Inc., 211 Fed. App’x 377, 380 (6th Cir. 2006).
Defendants argue that since co-worker Zach Stewart was present when Wagner made the comment
that Wagner was referring to both of them. See Woods Dep., p. 212. However, Woods testified
that Wagner singled him out and “was only speaking to me” when he said “you people.” Id.
In contrast, plaintiffs have not linked the two alleged instances of offensive behavior to race.
Plaintiffs have not provided any context to either occurrence. Woods states that Smith “placed his
leg on my desk in a sexually suggestive manner while I was seated at my desk.” See Woods Aff., ¶
57; see also Woods Dep., p. 194 (mentioning in passing that Smith “put his crotch in my face”).
And Woods declined an opportunity to explain the “situation with Duane having your head in his
chest” by responding, “I don’t know,” and stating that the “end result” was that his hair coloring
product to hide gray hair came off on Smith’s shirt. Woods Dep., pp. 191-92. Though one might
view the behavior as inappropriate, there is no support on the record before the court that it was
based on race. See Stewart Dep., pp. 58-59 (testifying that he had seen Smith rub other employees’
heads in his chest in a joking manner).
To summarize, the following conduct could be found to be based on race: defendants made
several “you people” comments to Woods, including “you people are cheeky” and “you people are
dramatic”; Smith suggested that Woods liked fried chicken and Kool-Aid; Smith said that Woods
looked like Dizzy Gillespie, had “nappy” hair, and was a “dark cloud”; and defendants often walked
clients visiting the office past Woods unless they were black.
The court now must determine whether that conduct was so severe or pervasive as to alter
the conditions of employment and create an abusive working environment. Factors to consider
include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Harris, 510 U.S. at 23. “[I]solated incidents (unless extremely
serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
The court finds that there is not sufficient evidence from which a jury could reasonably find
that the conduct satisfies the severe or pervasive standard. As with many of the allegations in this

21

case, plaintiffs do not provide much, if any, context to the alleged offensive conduct. 8 Even when
viewed collectively, the conduct amounts to occasional offensive comments. There were no alleged
threats and no alleged physical harm. “Occasional offensive utterances do not rise to the level
required to create a hostile work environment.” CSX Transp., 643 F.3d at 511.
While the comments could be found to be racially insensitive and offensive, their severity
and impact on plaintiffs’ ability to perform work should be viewed in light of the evidence
concerning the tolerance at plaintiffs’ workplace for joking around and being “outrageous.” Woods
Dep., p. 217. Woods testified that he, his co-workers, and defendants liked to “kick back and cut
up,” Woods Dep., p. 158, and “to be outrageous” while “in good fun,” id., p. 218. Woods once had
a picture of Smith and Zach Stewart that he labeled as Milli Vanilli, after the lip synching music duo
of the late 1980s, and sent the picture to Smith. Id., pp. 155-56. Woods gave a pink cowboy hat to
Smith because he thought Smith was a “good, old, country boy.” Id., p. 216-17. Woods testified
that they would try “to be [as] crazy outrageous as we could be[,] that’s why we went with the pink
hat.” Id., p. 217. See also id., pp. 157-58 (testifying that “we took one of the client coordinators
[and a client] out to a strip club” and that it was all “in good fun”); Stewart Dep., pp. 42-43, 58-59
(testifying as to the joking nature of the workplace).
Plaintiffs have not put forth evidence from which a jury could reasonably find that the
alleged offensive conduct interfered with their ability to perform their work.

Even with the

allegation that defendants walked clients past Woods, plaintiffs have not attempted to explain or
show how it interfered with Woods’s ability to perform his work for the clients to which he was
assigned.
Accordingly, defendants are entitled to summary judgment on plaintiffs’ hostile work
environment claims.
IV.

Conclusion
Defendants’ motion for summary judgment (doc. 60) is GRANTED. Plaintiffs’ motion to

strike defendants’ “Notice of Errata” (doc. 77) is DENIED AS MOOT, as the court did not rely on
the Notice of Errata in reaching its decision on summary judgment.
The court notes that remaining in this suit is defendants’ counterclaim for fraudulent
inducement. Defendants have represented that they are not seeking damages from the counterclaim
but asserted the counterclaim because they believed it would provide grounds for the equitable
Again, plaintiffs rely heavily on affidavits containing brief one-sentence assertions on matters for
which Woods’s deposition contained little or no testimony.

8

22

remedy of rescission and establish an alternate basis for dismissing plaintiffs’ employment
discrimination claims. See Doc. 55, p. 2.
Defendants shall advise the court within 14 days of this order as to whether they intend to
pursue their counterclaim.

s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: January 20, 2015

23