Ross v. Teleperformance USA Inc et al

Filing 91

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. TPUSA's Motion to Dismiss (Doc. #70), Ross's Motion for Extension of Time to Respond to Defendant's Request for Production of Documents (Doc. #72), and TPUSA's Moti on for Protective Order (Doc. #74) be DENIED as moot; 2. TPUSA's Motion for Summary Judgment (Doc. #86) be GRANTED; 3. Ross's Cross Motion for Summary Judgment (Doc. #89) be DENIED as untimely and moot; 4. The Court certify pursuant to 28 U .S.C. §1915(a)(3) that an appeal of an Order adopting this Report and Recommendations would not be taken in good faith, and consequently, leave for Plaintiff to appeal in forma pauperis should be denied; and, 5. The case be terminated on the docket of this Court. Objections to R&R due by 6/23/2014. Signed by Chief Magistrate Judge Sharon L Ovington on 6/5/2014. (rms)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KEESYA D. ROSS,

:

Plaintiff,

:
:

vs.
TELEPERFORMANCE USA,
INC., et al.,

Case No. 3:13cv00038
District Judge Timothy S. Black
Chief Magistrate Judge Sharon L. Ovington

:
:

Defendants.
:

REPORT AND RECOMMENDATIONS1

I.

Introduction

Plaintiff Keesya D. Ross was employed with TPUSA, Inc., d.b.a. Teleperformance
USA (“TPUSA”), as a customer service representative at its Fairborn, Ohio call center.
TPUSA operates inbound and outbound call centers on behalf of its clients to assist them
with customer care, technical support, and debt collection operations. (Doc. #86-2,
PageID# 1285; Doc. #89, PageID# 1427).
Ross worked as a member of TPUSA’s “Save Team.” Her job was challenging.
She was responsible for handling calls from customers seeking to cancel services of
TPUSA’s client accounts. It was one of Ross’s primary goals on the Save Team to retain

1

Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

such customers whenever possible.
Ross, an African-American female, alleges, in part, that TPUSA terminated her
employment in retaliation for her complaints of alleged race- and sex-based
discrimination and because she planned to file a complaint with the EEOC.2 She claims
that her termination violated her rights under Title VII of the Civil Rights Act of 1963, 42
U.S.C. § 2000e et seq., and the Ohio Civil Rights Act, Ohio Rev. Code § 4112 et seq.
The case is presently before the Court upon Defendant TPUSA, Inc.’s Motion for
Summary Judgment (Doc. #86), Plaintiff Ross’s Cross Motion for Summary Judgment
and Response in Opposition to Defendant TPUSA’s Motion for Summary Judgment
(Doc. #89), Defendant TPUSA’s Reply (Doc. #90), and the record as a whole.
II.

Factual Background

A.

Plaintiff Ross’s Version of the Events

With few exceptions, Ross’s version of events provided herein is substantially
taken from her deposition testimony. (Doc. #79, PageID## 817-1113). Ross first became
employed with TPUSA in June 2011 as a customer service agent for one of TPUSA’s
client accounts and later became part of the Save Team in January 2012. (Doc. #79,
PageID# 886). As part of the Save Team, Ross handled calls from customers intending to
cancel services provided by one of TPUSA’s client accounts – in this case, a major
cellular telephone company. Thus, when a customer would call to cancel cellular

2

Ross’s retaliation claims are the only claims still remaining. (Docs. ## 34, 46).

2

services, Ross’s main objective was clear: try to retain or “save” the customer. (Doc.
#79, PageID# 887).
Ross described the area where she worked as essentially a large room containing
100 to 150 cubicles. (Doc. #79, PageID# 894). Ross stated that sometimes the office
“seemed overpacked and you couldn’t get a seat and sometimes it was empty.” (Doc.
#79, PageID# 895).
Ross alleges she began being harassed by fellow coworkers and supervisors
starting at the end of March. According to Ross, the first incident occurred on March 24,
2012. (Doc. #79, PageID# 958). On this date, a supervisor, Troy Naboors, came to assist
Ross with an escalated call – that is, a call in which the customer requested to speak to a
supervisor/manager. (Doc. #79, PageID# 959). Essentially, Ross asserts that Naboors
did not handle the call properly, the customer hung up, and she missed other incoming
calls as a result. (Doc. #79, PageID# 959-66). She stated that “[h]e was purposefully
messing up my queue. That’s what was harassing about that.” (Doc. #79, PageID# 966).
She also claims her supervisor – Brian Throckmorton – was “nonchalant” about the
situation because when she requested his assistance with the escalated call he told her he
was busy and arranged for Naboors to assist her instead. (Doc. #79, PageID# 967).
Ross contends the next allegedly harassing or discriminatory conduct occurred a
week later, on March 31st. (Doc. #79, PageID# 980). According to Ross, another
TPUSA employee, Chris Stewart, approached her at approximately 7:00 p.m. and
informed her that “Throck said you aren’t going to get your bonus,” before walking away.
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(Doc. #79, PageID# 981). Although Ross was handling a call at the time, she stated she
“politely put the customer on hold,” went to the restroom “real quick,” then approached
Throckmorton, “to question [him] about what was affecting my bonus . . . .” (Id.).
According to Ross, Throckmorton informed her the reason she would not receive her
bonus was because she did not meet a quota. (Doc. #79, PageID## 981-82). Ross stated
she “started questioning him about what was going on. And he told me that he didn’t
want to discuss it with me and if I keep asking him, if I keep asking him about it, he was
going to fire me. That’s what he stated.” (Doc. #79, PageID# 982). As a result, Ross
stated she told him “I can’t return to the phone call because I’m upset about my bonus.
So can I leave for the rest of the day?” (Doc. #79, PageID# 983). Ross alleges she only
had “like an hour” left on her shift. (Id.). She told him she would take the .25 penalty
points on her attendance record. (Doc. #79, PageID# 984). Ross asserts Throckmorton
told her “you can go home, you can take the .25.” (Id.).
According to Ross, Brian Harris, a more senior TPUSA manager, overheard the
conversation and asked Ross and Throckmorton to step into his office. Harris provided
Ross with an opportunity to discuss the situation. (Doc. #79, PageID# 986). She told
him about the allegedly mishandled call by Naboors on March 24th and its impact on her
bonus, and she complained about “the politics” of the workplace. (Doc. #79, PageID#
986-87).
According to Ross, Harris responded as follows:
What he did was he said, well, because it’s an issue and I understand that
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your issue and you are upset about the situation, I understand, he’s like, I can look
at it, I can correct it.
...
So he was like I can get permission. I understand the issue and I’m going to
pay you your bonus, he said, but he called it a system issue and I kept explaining
to him that’s who he, he did not acknowledge the fact that I was saying what Troy
did
....
That was the rectification of what happened. And he ended up giving me
my bonus, but after that because I approached him in the office, that’s when the
harassment intensified and increased against me.
(Doc. #79, PageID# 989).
The next day, Ross called off work “because of the incident.” (Doc. #79, PageID#
992). According to Ross, the incident was “embarrassing” and “was something I would
have not have been wanting to be discussing with Brian Harris.” (Doc. #79, PageID#
993).
Ross claims another incident occurred on April 8th. On this date, TPUSA
employee, Chris Stewart, got on a call Ross had escalated to a “mentor.” (Doc. #79,
PageID# 996). According to Ross, the customer originally called to speak with Stewart –
as he had previously assisted the customer with an issue – but Ross claims that when she
tried to transfer the call to Stewart, he refused to accept it. Faced with Stewart’s refusal,
Ross escalated the call to a “mentor,” Wendell. (Doc. #79, PageID# 998). Ross
complains that “Wendell got on the call. He talked to the customer. He talked to the
customer. He talked to the customer for a long time . . . .” (Id.). After Wendell seemed to
5

have resolved the issue – approximately an hour later – he offered the customer a chance
to speak to Stewart, which the customer accepted. (Id.). Stewart then got on the call and
spoke to the customer for another hour and a half. (Id.). Ross claims this was harassing
to her because she believes Stewart, a white male, and Wendell, an African-American
male, “conspired to do that.” (Doc. #79, PageID# 1004).
Ross claims that on May 26, 2012, a white female coworker, Amy, did not receive
any calls for four hours. (Doc. #79, PageID# 1008). Ross stated that managers
Throckmorton and Harris told Amy that nothing was wrong with the computer system,
she was showing as “available,” they did not know why it was occurring, and they “were
laughing about it.” (Doc. #79, PageID# 1014). Ross believes this was further
harassment, “because I made a statement about politics . . . .” (Doc. #79, PageID# 1009).
In June 2012, Ross left early on the 12th – apparently with Throckmorton’s
permission – and called out sick on the 13th. (Doc. #79, PageID# 1031). She returned to
work on the 14th with a doctor’s note. (Id.). On June 16th, Harris approached Ross and
informed her that she was being placed on an attendance “action plan” due to her number
of absences. (Doc. #79, PageID# 1032). It was Ross’s understanding that while on the
action plan, “if you’re absent, you call off the next 30 days you can be terminated.” (Id.).
At that time, Ross states that Harris began discussing the “action plan” with her
and asked her why she had accrued so many points. (Id.). According to Ross, she
informed him that “the reason I’ve been calling off work is because I’m sick and you all
are harassing me. I told him, looked him dead in the eyes and said you all are harassing
6

me and it’s making me sick. . . .” (Doc. #79, PageID# 1034). According to Ross she also
told Harris that he “didn’t do anything about it,” and he “was part of the harassment.”
(Doc. #79, PageID# 1038).
Eventually, Ross asked Harris if she could just leave work at that time because she
was upset, but he said “no.” Ross responded, “if [I] leave, what are you going to do?”
Harris told her “I’m going to fire you for policy and procedure.” Ross again said to
Harris, “it’s become a hostile work environment and I can’t go home?” According to
Ross, Harris again said “no” and that if she did leave, “I’m going to fire you for policy
and procedure.” (Doc. #79, PageID# 1044). As Ross explains, “that’s when I informed
him that I’m going to the EEOC because you wouldn’t do anything about it and I was like
I’m going to go to the EEOC, there’s nothing you can do about it because you are not
even trying, you are not willing to help. All of you all are conspiring, basically you all
are conspiring to harass me on the job. . . .” (Doc. #79, PageID# 1044). Thereafter, Ross
alleges Harris “was like just go back to work.” (Id.).
Ross’s version of what happened the following day – Sunday, June 17, 2012 – and
thereafter is largely based upon her memorandum in opposition (Doc. #89, PageID##
1418-62), supported by her signed Declaration. (Doc. #89-1, PageID## 1463-1465).
Ross reported to work, worked her shift, and was preparing to leave at approximately
8:08 p.m. when she noticed her car keys were missing from her desk. (Doc. #89,
PageID# 1429). Ross believed the reason she could not locate her keys was because they
had been stolen by a coworker. (Doc. #86-2, PageID# 1286; Doc #89, PageID# 1427).
7

Ross started searching for her keys. She searched the restroom twice, “including the trash
and stalls in the bathroom,” but did not locate the keys. (Doc. #89, PageID# 1429).
Unable to find the keys, Ross approached Charles Tyree, “the only supervisor in view at
the time on [her] side of the building.” (Doc. #86-2, PageID# 1287; Doc. #89, PageID#
1428). Tyree informed her that he did not have her keys. (Id.). Ross claims that “after I
gave him time to make an attempt to announce or walkie talkie another supervisor to see
if my keys had been turned in . . .” she made an “announcement” in the call center. (Doc.
#89, PageID# 1430). According to Ross, she also informed Tyree “that if my keys were
not returned I would have to call law enforcement because my keys cost $600 to $1200 to
replace due to the fact it was a Mercedes Benz key . . .” (Doc. #89, PageID# 1430).
Tyree then suggested they go outside to check if Ross may have inadvertently left the
keys inside her car. (Doc. #86-2, PageID# 1287; Doc. #89, PageID# 1430). Ross and
Tyree exited the building and looked in Ross’s car but still did not find the keys. (Doc.
#89, PageID# 1430). At that time, Tyree went back inside the building while Ross
walked across the parking lot to a nearby business to call her dad for assistance. (Doc.
#89, PageID# 1431). After returning to her car, Ross claims that “Charles Tyree came
running towards me out of the building with my keys in his hand . . . he stated ‘Josh
Bennington had my keys.’” (Id.). Ross then got into her vehicle and drove home. (Id.).
Ross was not scheduled to work the next day, June 18th. (Doc. #89, PageID#
1440). While at home on the 18th, Ross claims she placed two calls to Teleperformance’s
We Care hotline. (Doc. #89, PageID# 1441). She stated she left a message “reporting
8

class action discrimination on job advancement, hiring, and promotions as well as stating
what I had experienced in detail and my keys being stolen as a retaliatory act, and
requested a call back to discuss further what was going on at the Fairborn location.” (Id.).
Ross placed this call at 12:44 p.m. (Id.). Ross claims she received a call from a woman
who initially stated her name was Nikki, calling from the We Care hotline, but who later
identified herself as Mynette Murrell. (Id.). According to Ross, she told Murrell – a
Human Resources Coordinator at TPUSA who Ross already knew – that she did not want
to discuss the issues with her because she felt there was a “conflict of interest” as
Murrell’s daughter works with Ross at TPUSA. (Doc. #89, PageID# 1433). According
to Ross, she then hung up the phone on Murrell before discussing the incident regarding
the missing keys that occurred the day before. (Id.).
The following day – June 19, 2012 – Ross was scheduled to work but called off.
She stated “I called off work because I had not gotten a call back from corporate in
reference to my complaint and refused to work in a hostile environment without
accommodations and was just exhausted from the whole experience.” (Doc. #89,
PageID# 1441). Later that day she received a call from Calbert DuVall, another Human
Resources Coordinator at TPUSA. (Id.). Ross stated that she spoke with him for an hour
and 25 minutes, “discussing my complaints in its entirety . . . .” (Id.).
Ross stated that during her conversation with DuVall, she “admitted that I made an
announcement . . . ‘my keys were missing and if anyone knew or had them please return
them to me . . . .’” (Doc. #89, PageID# 1434). Ross denied using profanity. She claims
9

that at the end of the call, DuVall told her that he received six statements from witnesses
regarding the events that occurred on June 17th, and that he would be moving forward
with her termination as a result of her actions. (Doc. #89, PageID# 1441).
Ross contends that her termination on June 19, 2012 was “due to making
complaints and reporting harassment, discrimination and the work related illness that I
had incurred . . . .” (Doc. #89, PageID# 1442).
B.

Defendant TPUSA’s Version of Events

There is no dispute that TPUSA hired Ross on June 20, 2011, that she worked as a
member of the Save Team, and that she was terminated on June 19, 2012. (Doc. #86-2,
PageID## 1266-67).
Although TPUSA disputes that Ross informed manager Brian Harris about her
intention to complain to the EEOC, it does not dispute that she was placed on an
attendance action plan on June 16, 2012, due to her alleged violation of its attendance
policy. (Doc. #86-1, PageID# 1267).
TPUSA also does not dispute that Ross worked on Sunday, June 17, 2012, or that
at the end of her shift she could not find her car keys. (Doc. #86-1, PageID# 1267).
Rather, TPUSA’s version of events differs as to how Ross reacted to the situation.
According to TPUSA, at approximately 8:30 p.m. on June 17, 2012, TPUSA
employee Noah Banks overheard Ross yell, “who the fuck stole my keys,” and “I’m
going to have the cops search every fucking body.” (Doc. #86-1, PageID# 1268). Banks
also heard Ross say that she was going to “raise hell” if nobody confessed to stealing her
10

keys. (Id.). TPUSA states that Charles Tyree “tried to calm Ross down, and to
discourage her from accusing her co-workers of theft, but Ross ignored him.” (Id.).
According to TPUSA, Tyree and Ross then went outside to look if she had left the keys in
her car. While outside, and after not finding the keys in her vehicle, TPUSA contends
that Ross then told Tyree that she “knew” who had “stolen” her keys, but refused to
identify the individual. (Id.). Ross continued to scream at Tyree, swung an umbrella at
him, and jabbed a finger in his face while “threatening to have her father ‘come up here’
and that there would be ‘problems’ if that happened.” (Id.) At that time, Ross left the
TPUSA parking lot and walked to a nearby store while Tyree went back inside the
TPUSA facility, “where he promptly learned that Ross’s keys had been found in the
womens’ bathroom.” (Doc. #86-1, PageID# 1269). At that time, Tyree also called
Jeanette Jack, “a more senior TPUSA manager, who advised Tyree to have Ross leave the
call center.” (Id.).
According to TPUSA, Tyree then went back outside to return the keys to Ross,
who had also just returned from the store. (Id.). At this point, or so TPUSA contends,
“Tyree’s intention . . . was to suspend Ross, and to facilitate this, he attempted to remove
the TPUSA security key card from Ross’s keychain before he handed the keychain back
to her. But before he could do this, or tell Ross that she was suspended, Ross snatched
the keys from his hand and made a motion as though she was going to slap him in the
face.” (Id.). Ross then got into her car and drove off.
Later that evening, Tyree composed the following e-mail to his superiors, and
11

copied to Mynette Murrell:
At about maybe 4:30pm today I was flagged down by a few agents saying that
keesya had an outburst on the floor then went to break and walked off of the floor.
Due to me not hearing this I called in to a few of the agents ACD’s around her as
well as called in to keesya’s acd. I was also walking around her station for a few
Hours as well as on a few SUP call’s and did not hear anything that would alert me
to this agent. I then asked the agents who I spoke to before if they had any more
issue’s and they stated that they had not. Well about 8:30pm I’m at my desk and I
hear keesya start yelling and yelling curse words over the call floor. She was
saying that someone had stolen her car keys and she had better get them back.
After a few min of me telling her to calm down she would not do so and then
started yelling at and cursing at me. she then stated that she was going to call the
police and have them come in an search everyone in the call center. I adv her that
until approved by a accm or someone higher the police will not be searching
anyone. I told her that we needed to look for her missing key’s and not assume
that someone had stolen them. Knowing that she did not have her badge due to it
being on her key ring, I told her that the first thing we needed to do is go out and
look in her car to see if she locked them in her car. We went outside and looked in
her car and they were not locked in her car. She again started saying that she knew
they stole them. I asked who? She would not tell me who she was talking about.
She stated that she had been having issues with agents off and on for a few days
now. I asked her if she told anyone about this and she stated that she has talked to
Harris about it had she don’t think that he did anything. I asked her who the agents
were and she would not tell me. I told her that I would go in and look for them for
her. She went off on me again when swinging a umbrella in my face and said if
they are not found then she will have her dad come up here and there will be
problem’s. (she stated a different selection of word’s however it was something I
do not remember) but she did threaten the agent’s and other staff that were in the
center at the time. She then went to the smoke store to get a something. I then
called J.jack to let her know about what was going on. I went back in the center
and spoke with Brandon griffin and josh bennington to see if they had found the
keys and or had them given to them. josh stated that he had them on his desk. I
went and got them and took them out and gave them to her. She asked me where
they were and I told her that they was found in the bathroom and turned in and not
stolen. I was trying to get her key card off of her key’s to tell her that she is
suspended however she grabbed her key’s out of my hand and moved to me as if
she thought about slapping me in the face.
....

12

(Doc. #86-5, PageID# 1302)(without corrections).
According to TPUSA, when Murrell returned to work the next day – Monday,
June 18, 2012 – she discovered eight witness statements slid beneath her office door (as
well as Tyree’s email in her inbox), all relating to Ross’s behavior the day before. (Doc.
#86-1, PageID# 1270). Murrell reviewed statements from Tiffany Allen, Noah Banks,
Gillian Donohoe, Benjamin Fisher, Seth Johnson, Joanne Luke, Courtney Oliver, and
Chelsea Tessier. (Doc. #86-5, PageID## 1304-11). Each was substantially similar to
Tyree’s version of events. For example, Noah Banks reported that “[a]t the end of her
shift, [Ross] started yelling absurdly about her keys being gone. She said things like
‘who the f*** stolen [sic] my keys[’] and ‘I’m going to have to [sic] cops search every
f***ing body.’” (Doc. #86-5, PageID# 1305)(asterisks in original). Likewise, Chelsea
Tessier reported that Ross was “going off about her keys missing, and that the cops will
be searching everyone. [Tyree] took her outside to help her look, I could see threw [sic]
the window her yelling at him, & putting her finger in his face.” (Doc. #86-5, PageID#
1311).
Later that day, Murrell called Ross to hear her version of what happened. (Doc.
#86-1, PageID# 1272). According to TPUSA, Ross stated to Murrell that she reported
she was being harassed by her manager, Brian Throckmorton, and that she believed a
fellow TPUSA employee stole her keys so they could use them to enter her house and kill
her. (Id.). When Murrell asked Ross why she had not approached Human Resources
with these concerns, Ross stated that she was embarrassed and that “I don’t even know
13

who you are.” (Id.). According to TPUSA, Murrell explained to Ross that she had
previously helped her complete human resources paperwork, to which Ross reportedly
exclaimed, “oh my God, you are part of the conspiracy and your daughter is part of it!”
(Id.). Ross then hung up the phone on Murrell. (Id.). Murrell tried calling back but Ross
did not answer. (Id.).
Ross was scheduled to work the next day – June 19, 2012 – but called off work.
(Id.). According to TPUSA, at this point another Human Resources Coordinator, Cal
DuVall, had reviewed all of the witness statements and spoken to Charles Tyree. (Id.).
DuVall had responsibility over human resources issues at the Fairborn facility, where
Ross was working.
DuVall called Ross on June 19th, after she had called off work. DuVall had
already made a preliminary determination to terminate Ross for her actions on June 17th,
but called to speak with Ross directly, as she had hung up on Murrell the day before.
(Doc. #86-1, PageID# 1273). According to TPUSA, Ross denied to DuVall that she used
profanity during her “announcement,” but admitted she accused her coworkers of stealing
her keys, and that she threatened to call the police and have everyone searched. (Id.).
DuVall spoke with Ross for over an hour, during which time TPUSA claims that “Ross
made vague, non-specific allegations that her supervisors had been harassing her and
conspiring with TPUSA’s human resources employees and that Murrell had it ‘out for
her’ . . . .” (Id.).
When DuVall concluded that Ross had not told him anything that would change
14

his mind about her termination, he informed Ross that her employment with TPUSA was
terminated effective immediately due to her behavior two days earlier, on June 17th. (Id.).
III.

Summary Judgment Standard

The central issue presented by a Motion for Summary Judgment is a threshold
issue – whether the case presents a proper jury question. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A party is entitled to
summary judgment if there is no genuine dispute over any material fact and if the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); see also Barker v. Goodrich, 649 F.3d 428, 432 (6th
Cir. 2011).
“The burden placed upon the movant for summary judgment is to show that the
non-moving party has failed to establish an essential element of his case upon which he
would bear the ultimate burden at trial.” Guarino v. Brookfield Tp. Trustees, 980 F.2d
399, 403 (6th Cir. 1992); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989). If the movant makes this showing, the non-moving party may not rely on the bare
allegations of the Complaint but must present affirmative evidence in support of his or her
claims. Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994); Mitchell v. Toledo Hospital,
964 F.2d 577, 582 (6th Cir. 1992); Street, 886 F.2d at 1479-80.
To resolve whether a genuine issue of material fact exists, the Court draws all
reasonable inferences in the light most favorable to the non-moving party. Richland
Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512, 520 (6th Cir. 2009) (citing
15

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986)). With these reasonable inferences in the forefront, “[t]he
central issue is ‘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.’” Jones v. Potter, 488 F.3d 397, 402-03 (6th Cir. 2007) (quoting, in part,
Anderson, 477 U.S. at 251-52 and citing Matsushita Elec., 475 U.S. at 587).
In addition, while Plaintiff is proceeding in this case pro se – and the Court must
construe her Amended Complaint liberally in her favor – it is not required “to search the
entire record to establish that it is bereft of a genuine issue of material fact.” Guarino,
980 F.2d at 404; InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989);
Street, 886 F.2d at 1479-80. Rather, the burden falls on Plaintiff at this stage of the
litigation to designate specific facts or evidence in dispute. Anderson, 477 U.S. at 250;
Metiva, 31 F.3d at 379; Guarino, 980 F.2d at 404-05; Street, 886 F.2d at 1479-80.
IV.

Analysis

A.

Title VII Retaliation Claims

Title VII prohibits discriminating against an employee because that employee has
engaged in conduct protected by Title VII. See 42 U.S.C. § 2000e-3(a). A Title VII
retaliation claim can be established “either by introducing direct evidence of retaliation or
by proffering circumstantial evidence that would support an inference of retaliation.”
Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531, 538 (6th Cir. 2008). Direct
evidence is evidence that, if believed, requires no inferences in order to conclude that
16

unlawful retaliation motivated an employer’s action. Id. at 543-44. Direct evidence
“requires the conclusion that unlawful retaliation was a motivating factor in the
employer’s action.” Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir.
2003)(emphasis omitted). Plaintiff has not presented any direct evidence of retaliation in
this case. Accordingly, the Court analyzes her retaliation claim under the three-part
burden-shifting framework set forth in McDonnell Douglas. See Spengler v. Worthington
Cylinders, 615 F.3d 481, 491 (6th Cir. 2010) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 207 (1981)).
If the plaintiff establishes a prima facie case, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for the action. Fuhr v. Hazel Park
School Dist., 710 F.3d 668, 674 (6th Cir. 2013). If the defendant articulates such a
reason, the plaintiff must then show that the reason provided is merely a pretext for
discrimination. Id. at 675. In addition, the Supreme Court recently made clear that unlike
other Title VII claims, “Title VII retaliation claims must be proved according to
traditional principles of but-for causation . . . .” Univ. of Tex. Sw. Med. Ctr. v. Nassar, __
U.S. __ , 133 S. Ct. 2517, 2533, 186 L. Ed. 2d 503 (2013). The analysis under Ohio law
is identical. Abbott, 348 F.3d at 541.
B.

Prima Facie Case

1.

Plaintiff’s Burden

Plaintiff bears the burden of establishing a prima facie case of retaliation by
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showing: “(1) he engaged in activity protected by 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 (4) a causal connection existed
between the protected activity and the materially adverse action.” Jones v. Johanns, 264
F. Appx. 463, 466 (6th Cir. 2007)(citing Abbott, 348 F.3d at 542, and Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006)).
2.

Protected Activity

“Protected activity” is defined in 42 U.S.C. § 2000e-3(a) as “oppos[ing] any
practice made an unlawful employment practice by this subchapter . . . .” The term
“oppose” is not defined by the statute but is provided its ordinary meaning: “[t]o resist or
antagonize . . .; to contend against; to confront; resist; withstand.” Crawford v. Metro.
Gov’t, 555 U.S. 271, 276, 129 S. Ct. 846, 172 L. Ed. 2d 650 (2009) (quoting Webster’s
New International Dictionary 1710 (2d ed.1958)). According to Ross, she informed
TPUSA manager Brian Harris on June 16th – after he placed her on an attendance action
plan – that she was planning to file a complaint with the EEOC regarding alleged
discrimination. (Doc. #79, PageID## 986-87, 1044). Ross also stated that she left a
message on TPUSA’s We Care hotline complaining about discrimination, as well as
informed Mynette Murrell and Cal DuVall – both human resources personnel – of same
on June 18th and 19th, respectively. (Doc. #89, PageID# 1433-42). Drawing all
reasonable inferences in favor of Ross, a jury could reasonably conclude that she engaged
in protected activity.
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3.

Defendant’s Knowledge

“In most Title VII retaliation cases, the plaintiff will be able to produce direct
evidence that the decision making officials knew of the plaintiff’s activity.” Mulhall v.
Ashcroft, 287 F.3d 543, 551-52 (6th Cir. 2002). Here, Ross states that – in addition to
leaving a message regarding discrimination on TPUSA’s We Care hotline – she
complained about alleged discrimination to Harris, Murrell, and DuVall. She also states
that DuVall is the individual who terminated her employment. (Doc. #89, PageID#
1441). Accepting these allegations as true, a jury could reasonably conclude that the
TPUSA official who terminated her employment knew of her protected activity.
4.

Materially Adverse Employment Action

It is undisputed that Ross was terminated on June 19, 2012. As such an action
was, of course, materially adverse to her employment, she has satisfied the third element
of her prima facie case. See White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th
Cir. 2008).
5.

Causation

To establish a causal connection, a plaintiff must “‘proffer evidence sufficient to
raise the inference that her protected activity was the likely reason for the adverse
action.’” EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997) (quoting
Zanders v. National R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990)(citations
omitted)). “Where an adverse employment action occurs very close in time after an
employee learns of a protected activity, such temporal proximity between the events is
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significant enough to constitute evidence of a causal connection for the purposes of
satisfying a prima facie case of retaliation.” Mickey v. Zeidler Tool and Die Co., 516 F.3d
516, 525 (6th Cir. 2008). Ross claims she complained of harassment to her manager on
June 16th and to human resources personnel on June 18th and 19th. She was terminated on
June 19th. Although it is undisputed that Ross was also involved in an incident in the call
center regarding her missing keys, the very close temporal proximity between her
complaints and her termination – viewed in a light most favorable to her – is sufficient to
raise a reasonable inference that Ross’s protected activity was the reason for her
termination. See Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007)(“The burden of
proof at the prima facie stage is minimal; all the plaintiff must do is put forth some
credible evidence that enables the court to deduce that there is a causal connection
between the retaliatory action and the protected activity.” (citing Avery, 104 F.3d at 861)).
C.

Pretext

TPUSA asserts it “fired Ross after concluding that she had engaged in an
inappropriate workplace outburst on June 17, 2012.” (Doc. #86-1, PageID# 1276).
Ross’s unprofessional behavior, TPUSA contends, was the nonretaliatory reason for her
termination.
“[A] plaintiff can show pretext in three interrelated ways: (1) that the proffered
reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the
employer’s action, or (3) that they were insufficient to motivate the employer’s action.”
Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).
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To create a genuine issue over whether TPUSA’s reason is pretext, Ross must
produce “sufficient evidence from which a jury could reasonably reject [her employer’s]
explanation of why it fired her.” Chen, 580 F.3d at 400. As discussed below, Ross has
failed to do so.
Ross argues that “TPUSA[’s] reason for termination is false and was used to cover
up the fact that I was being harassed and discriminated against and participated in
reporting the harassment . . . .” (Doc. #89, PageID# 1446). To show pretext on the
grounds that TPUSA’s reason for Ross’s termination had no basis in fact, however, Ross
“must allege more than a dispute over the facts upon which [her] discharge was based.
[Sh]e must put forth evidence which demonstrates that the employer did not ‘honestly
believe’ in the proffered non-discriminatory reason for its adverse employment action.”
Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir. 2001). To show an honest
belief, “the employer must be able to establish its reasonable reliance on the
particularized facts that were before it at the time the decision was made.” Smith v.
Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). Moreover, it is “not require[d] that
the decisional process used by the employer be optimal or that it left no stone unturned.”
Id. at 807.
Cal DuVall – the Human Resources Coordinator who made the decision to
terminate Ross’s employment with TPUSA on June 19, 2012 – stated in his declaration
that he “investigated [the] incident involving Keesya Ross by reviewing the witness
statements that had been submitted to Murrell, including Charles Tyree’s email describing
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the event, and by speaking to both Murrell and Tyree about the incident.” (Doc. #86-4,
PageID# 1296). He also stated that he spoke to Ross – who had hung up on Murrell the
previous day – and that after speaking to her for over an hour, “I concluded that Ross had
not told me anything during the call that changed my mind about whether or not she
would be discharged for her outburst on June 17. At the end of the call, I informed Ross
that her employment with TPUSA was terminated effective immediately, because of her
behavior on June 17.” (Doc. #86-4, PageID# 1297).
Although Ross disputes the veracity of the witness statements DuVall read –
arguing that the allegations contained therein that she used profanity or threatened
employees are untrue – she provides no evidence to rebut DuVall’s, and therefore
TPUSA’s, “honest belief” regarding the truth of these witness statements, or any of
DuVall’s other findings from his investigation. Again, “the key inquiry is whether the
employer made a reasonably informed and considered decision before taking an adverse
employment action.” Smith, 155 F.3d at 807. Ross has simply failed to provide any
probative evidence suggesting that TPUSA did not honestly believe the reasons it gave
for terminating her employment. See Anderson, 477 U.S. at 257. (“[P]laintiff must
present affirmative evidence in order to defeat a properly supported motion for summary
judgment.”).
Moreover, Ross’s own version of the events is largely consistent with much of
what DuVall stated. For example, Ross acknowledges she was told by DuVall at the time
he terminated her employment that it was as a result of her misconduct in the call center
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two days earlier, on June 17th. (Doc. #89, PageID# 1442). Ross also acknowledges that
DuVall spoke with her over the telephone for close to 1 ½ hours as part of his
investigation about the incident. (Doc. #89, PageID# 1441). She further acknowledges
that DuVall told her – prior to her termination – that he had reviewed witness statements
regarding the incident indicating what she did. (Id.). Ross also does not dispute that she
believed someone stole her keys on June 17th and that she made an “announcement” in the
call center “about my keys being stolen.” (Doc. #89, PageID# 1446). Simply put, Ross
has failed to create a genuine issue concerning whether TPUSA’s reason for her
termination lacked a basis in fact.
Even Ross’s version of the events provides support for DuVall’s non-retaliatory
reason for her termination – her unprofessional behavior in the call center. Ross
acknowledges she made an “announcement,” without permission, in the call center.
(Doc. #79, PageID# 889). Ross’s shift may have ended for the day, but other employees
were still working and were, at the very least, distracted from their work duties by Ross’s
“announcement.” Moreover, Ross, and her fellow coworkers, were employed in a
challenging role handling calls on behalf of a major cellular telephone company, often
from unhappy customers seeking to cancel services, in a call center that Ross described
during her deposition as “constantly flowing.” (Id.). Ross clearly described the
understandable difficulty of such a position during her deposition: “Like as far as I came
there for eight hours, I was on the phone, that’s what my job consisted of and it was
demanding, it was calls. . . . That job was demanding. I had to have a headset on and be
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on calls all day long and that’s what my job consisted of.” (Doc. #79, PageID# 889). In
such an environment, profanity-laden or not, Ross’s self-described “announcement” – an
“announcement” there is no dispute she made, without permission, and which multiple
employees heard – alone provided support for TPUSA’s nonretaliatory reason to
terminate her employment: her unprofessional behavior.3
To the extent Ross also attempts to prove pretext by showing that TPUSA’s reason
for terminating her employment – her behavior on June 17th – did not actually motivate its
decision to terminate her, she has again failed to carry her burden. “[I]n making such a
motivation argument, a plaintiff must show that the ‘sheer weight of the circumstantial
evidence of [retaliation] makes it more likely than not that the employer’s explanation is a
pretext, or coverup.” Herrera v. Churchill McGee, LLC, 545 Fed. Appx. 499, 503 (6th
Cir. 2013) (quoting Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th
Cir. 1994)). Ross has simply failed to provide any affirmative evidence that her
“announcement” in the call center on June 17th did not constitute unprofessional behavior
or did not actually motivate TPUSA’s reason for terminating her employment.
Ross also has not shown that TPUSA’s proffered reason for her termination was
insufficient to motivate its action. In order to make this showing, Ross must present

3

Ross also appears to seek to excuse her behavior by arguing that “even if [the ‘announcement’]
was viewed [as] unprofessional, I had already given notice [of] my current health status to Brian Harris
(Assistant Call Center Manager) of situational anxiety . . . .” (Doc. #89, PageID# 1447). Even assuming
Ross’s “announcement” can somehow be attributed to such a disorder, this does not call into question
TPUSA’s legitimate nonretaliatory reason for termination. See Dykes v. Wolohan Lumber, Co., 2007
U.S. Dist. LEXIS 28927(S.D. Ohio 2007); Whitten v. Fenner Dunlop Conveyor Sys. & Servs., 2013 U.S.
Dist. LEXIS 104958 (S.D. Ohio 2013).

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“evidence that other employees, particularly employees not in the protected class, were
not fired even though they engaged in substantially identical conduct to that which the
employer contends motivated its discharge of the plaintiff.” Manzer, 29 F.3d at 1084.
Ross has identified no employees who acted in a “substantially identical” way to the way
she acted on June 17th and who were not terminated.
Regardless of Ross’s subjective beliefs as to the reason her employment was
terminated by TPUSA, she has failed to raise a genuine issue of material fact as to
whether TPUSA’s proffered reason for her termination was pretextual. As a result, no
jury could reasonably find that TPUSA retaliated against her in violation of her rights
under Title VII or the Ohio Civil Rights Act. Accordingly, TPUSA’s motion for
summary judgment is well taken.

IT IS THEREFORE RECOMMENDED THAT:
1.

TPUSA’s Motion to Dismiss (Doc. #70), Ross’s Motion for Extension of
Time to Respond to Defendant’s Request for Production of Documents
(Doc. #72), and TPUSA’s Motion for Protective Order (Doc. #74) be
DENIED as moot;

2.

TPUSA’s Motion for Summary Judgment (Doc. #86) be GRANTED;

3.

Ross’s Cross Motion for Summary Judgment (Doc. #89) be DENIED as
untimely and moot;

4.

The Court certify pursuant to 28 U.S.C. §1915(a)(3) that for the foregoing
reasons an appeal of an Order adopting this Report and Recommendations
would not be taken in good faith, and consequently, leave for Plaintiff to
appeal in forma pauperis should be denied; and,

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5.

The case be terminated on the docket of this Court.

June 5, 2014
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to SEVENTEEN days because this Report is being served by one
of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and Recommendation
is based in whole or in part upon matters occurring of record at an oral hearing, the
objecting party shall promptly arrange for the transcription of the record, or such portions
of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s
objections within FOURTEEN days after being served with a copy thereof.
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,
949-50 (6th Cir. 1981).

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