Sloan-Brown v. Meharry Medical College
Filing
33
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Eli J. Richardson on 3/26/2024. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
KAREN SLOAN-BROWN,
Plaintiff,
v.
MEHARRY MEDICAL COLLEGE,
Defendant.
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NO. 3:20-cv-01108
JUDGE RICHARDSON
MEMORANDUM OPINION
In this case, Plaintiff sued Defendant, her former employer, via a complaint (Doc. No. 1,
“Complaint”) that contains four counts. In Count I, Plaintiff asserts Defendant violated the Equal
Pay Act (“EPA”), 29 U.S.C. § 206(d)(1), et seq., because it failed to pay Plaintiff, a female, what
it paid a male co-worker even though (according to Plaintiff) Defendant was required to do so
based on a comparison of their jobs. In Count II, Plaintiff alleges that she suffered retaliation in
violation of the EPA. In Count III, Plaintiff alleges sex-based discrimination in violation of Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. And in Count IV,
Plaintiff alleges retaliation in violation of Title VII.
Now pending is “Defendant’s Motion for Summary Judgment” (Doc. No. 25, “Motion”),
whereby the sole defendant seeks summary judgment on all claims. Defendant has filed a
memorandum in support of the Motion (Doc. No. 26) and various materials in support of the
Motion, Plaintiff has filed a response in opposition to the Motion (Doc. No. 30) and various
materials in support of her opposition, to which Defendant filed a reply (Doc. No. 31). For the
reasons set forth herein, the Motion will be GRANTED IN PART AND DENIED IN PART.
UNDISPUTED FACTS1
I.
Introductory Remarks
In setting forth what facts it is treating as undisputed, the Court wishes to make some
observations about the under-analyzed notion of when allegations of personal knowledge are
insufficient. This matters here because Plaintiff denies certain facts asserted by Defendant based
solely on statements of Plaintiff made in her declaration (Doc. No. 30-2) that directly contradict
the existence of those facts. The problem is that those statements of Plaintiff are not supported by
any assertions of factual matter that either suggests that those statements are based on personal
The facts set forth in this section are undisputed, the term the Court will use to describe both facts that
are not in dispute at all and facts that are not in genuine dispute. Some of these facts come from “Plaintiff’s
Response to Defendant’s Statement of Undisputed Material Facts” (Doc. No. 30-5), wherein they are not
disputed by Plaintiff in response to Defendant’s assertion of them; as to some of these, the Court deems
them undisputed because Plaintiff claimed to be without knowledge or information sufficient to admit or
deny such facts, which both flouts this Court’s local rules and amounts to an admission as noted most
commonly by Courts within the Seventh Circuit. See LR56.01 (providing that a response to each fact
asserted by the summary-judgment movant to be undisputed must be in one of three forms, none of which
is to the effect of “unable to admit or deny”); Karazanos v. Madison Two Assocs., 147 F.3d 624, 626 (7th
Cir. 1998) (stating that a non-moving party’s response that it is without knowledge or information sufficient
to admit or deny an asserted fact constitutes an “equivocation [that] is an admission, not a denial.”); Knowles
v. Trans Union LLC, No. 03 C 4952, 2005 WL 3159363, at *2 (N.D. Ill. Nov. 21, 2005) (“Precedent teaches
that responses such as ‘without knowledge or information sufficient to admit or deny’ are unacceptable at
the summary judgment stage.”); Williams v. Elyea, 163 F. Supp. 2d 992, 994 (N.D. Ill. 2001). Other facts
herein come from the deposition of Plaintiff and are cited (as being accurate) by Defendant in its briefing.
Other facts (background, uncontroversial ones) are mutually stated in the parties’ opposing briefing. Others
come from the deposition testimony of an employee of Defendant and are cited (as being accurate) by
Plaintiff.
Moreover, as discussed elsewhere, the Court treats certain facts as undisputed because Plaintiff has
cited only her own statement—which makes a wholly conclusory denial of these facts—in her own
declaration to deny those facts, and Plaintiff’s declaration does not adequately show that she has personal
knowledge to support her (wholly conclusory) statement of denial. The Court also notes that it is
overlooking the fact that Plaintiff’s declaration fails to comply with the letter (if not the spirit) of the
requirements of 28 U.S.C. § 1746 for a proper declaration.
There are other purported facts that are not undisputed but are evidentially supported and are
asserted by Plaintiff and Defendant, respectively, to support their respective views that there is (according
to Plaintiff) or is not (according to Defendant) a genuine issue of material fact as to a particular claim. The
Court refers to these purported facts, and the evidence supporting them, in appropriate places in its analysis
below.
1
knowledge or otherwise support those statements. Plaintiff instead appears to rely on the wholly
conclusory assertion at the beginning of her Declaration that the facts set forth therein are “based
on [her] personal knowledge.” (Doc. No. 30-2 at 1).
PNY Techs., Inc. v. Samsung Elec. Co., No. 10-4587, 2011 WL 1630856, at *3 (D.N.J.
Apr. 29, 2011) (rejecting a declaration affidavit that made a conclusory assertion of personal
knowledge without providing any basis upon which the court could conclude that the declarant
had personal knowledge of the facts declared); Rosenfeld v. U.S. Dep’t of Just., No. C 07-03240
MHP, 2008 WL 3925633, at *12 (N.D. Cal. Aug. 22, 2008) (“The court is concerned about
Hardy’s conclusory assertion of personal knowledge [in Hardy’s declaration]. Indeed, the
declaration merely makes a . . . conclusion without specifying how this personal knowledge was
acquired . . . . For future declarations submitted by Hardy, the court seeks further explanation
regarding the basis for his purported personal knowledge.”). Cf. Bell v. Oakland Cmty. Pools
Project, Inc., No. 19-CV-01308-JST, 2020 WL 4458890, at *3 (N.D. Cal. May 4, 2020)
(sustaining the defendant’s objection to the introduction of each of two exhibits on motion for
summary judgment because the plaintiff’s “conclusory assertion of personal knowledge” was
insufficient to “support a finding that the item is what the proponent claims it is,” as required to
authenticate exhibits for their admission under Fed. R. Evid. 901(a) (internal quotation marks
omitted)). As explained in PNY Techs. in rejecting a declaration of a Ms. Stuto:
The Stuto declaration does not meet the requirements of Federal Rule of Civil
Procedure 56(c)(4), which states:
An affidavit or declaration used to support or oppose a motion must
be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
Ms. Stuto begins her declaration with the conclusory assertion that she has
personal knowledge of the facts therein. (Stuto Dec. ¶ 1.) Ms. Stuto presents no
basis for this conclusion . . . .
This Court finds nothing in the Stuto declaration from which to conclude
that Ms. Stuto has personal knowledge of the facts stated therein, nor that she would
be competent to testify as to any of the facts asserted. The Court may reject an
affidavit that fails to meet the personal knowledge requirement of Federal Rule of
Civil Procedure 56(c)(4). Aronson v. Peoples Natural Gas Co., 180 F.3d 558, 564
n. 2 (3d Cir.1999).
PNY Techs., Inc. v. Samsung Elecs. Co., No. CIV.A. 10-4587 SRC, 2011 WL 1630856, at
*3 (D.N.J. Apr. 29, 2011). Plaintiff’s Declaration suffers from the same flaw in those places where
it makes a statement that is made (and elsewhere invoked by Plaintiff) to diametrically oppose one
or more particular factual assertions of Defendant. With respect to each such statement,2 there is
no indication of how Plaintiff gained personal knowledge of the facts stated. This is especially
problematic because in each such instance, there is no basis for merely assuming that Plaintiff (or
anyone in Plaintiff’s position) would have personal knowledge of the stated facts. Each instance
is about what someone else did or was responsible for, which is something about which Plaintiff
cannot be presumed to have personal knowledge. And the Court’s confidence that Plaintiff has a
2
The statements are those in the Declaration’s (Doc. No. 30-2) paragraph 6 (which is diametrically opposed
to Defendant’s factual assertion that “Franklin Nouvet oversaw the drafting of all the Standard Operating
Procedures (“SOP”) for all the equipment in CRISALIS” (Doc. No. 30-5 at 4)) and paragraph 7 (which is
diametrically opposed to Defendant’s factual assertion that “Nouvet was provided access to each of the
RCMI sub-score accounts for the CRISALIS Core” (id.)). Those statements have not been adequately
shown to have been made on personally knowledge, and thus they must be disregarded.
In denying the former assertion of Defendant (“Franklin Nouvet oversaw the drafting of all the
Standard Operating Procedures (‘SOP’) for all the equipment in CRISALIS”), Plaintiff also relies on the
statement in paragraph 5 of her Declaration, but that statement actually does not adequately serve to refute
this assertion from Defendant, as Defendant specifically has stated it. Likewise, in denying the latter
assertion of Defendant (that “Nouvet was provided access to each of the RCMI sub-score accounts for the
CRISALIS Core”), Plaintiff also relies on the statement in paragraph 8 of her declaration, but (as before)
that statement actually does not adequately serve to refute this assertion from Defendant, as Defendant
specifically has stated it.
For these reasons, Plaintiff’s denials of these two asserts are ineffective, and the Court treats as
undisputed the facts thus asserted, without further explaining such treatment below.
basis for her denial in these instances is not helped by the fact that a person who would have
personal knowledge regarding these matters (Frank Nouvet) has testified to facts inconsistent with
Plaintiff’s denials. (Doc. No. 31-2).
II.
Comparison of Job Duties of Plaintiff and Franklin Nouvet3
The Court begins by setting forth the respective positions of Plaintiff and her purported
male comparator, Franklin Nouvet. It does so by first discussing Plaintiff’s position, then
discussing Nouvet’s position, and then returning to Plaintiff’s position very briefly to contrast it
with Nouvet’s position in one particular respect.
Plaintiff is a former Lab Coordinator at Meharry Medical College, Defendant herein. She
was employed in the Molecular Biology Core and later worked in the CRISALIS Core after the
merger of the Molecular Biology Core (along with several other cores) into the CRISALIS Core
facility.
Plaintiff was responsible to some extent for moving the Molecular Biology equipment from
the Molecular Biology Core to the CRISALIS Core.4 But Plaintiff was not responsible for ensuring
that all equipment from each of the other four (4) remaining cores were moved to the CRISALIS
Core. Plaintiff was responsible for preparing Standard Operating Procedures (“SOPs”) for
laboratory equipment in the Molecular Biology Core. But Plaintiff was not responsible for
3
The Court notes additionally that its description herein of the duties and activities are duties and activities
of the particular positions filled respectively by Plaintiff and Nouvet; there is no suggestion from either
side that there must be some filtering of such duties and activities to determine which of them were actually
associated with the two respective positions that Plaintiff asks this Court to compare (Plaintiff’s job and
Nouvet’s job) rather than being duties or activities that were unauthorized by Defendant or otherwise not
within the scope of the positions being compared.
4
The parties dispute whether (as Plaintiff claims) she had primary responsibility for this, with assistance
from Franklin Nouvet if needed, or whether instead (as Defendant claims) Plaintiff was responsible merely
for “helping” Nouvet to do this. Plaintiff admits that she was not responsible for ensuring that all equipment
from each of the other four (4) remaining cores were moved to the CRISALIS Core.
developing SOPs for equipment that was not part of the Molecular Biology Core. Plaintiff was not
responsible for developing, implementing, and systematizing a cost recovery system to monitor
and track equipment usage and service fees for all the equipment in the CRISALIS Core. Plaintiff
was never responsible for processing budgets, billing, and charges for the CRISALIS Core, an
integrated facility comprised of five formerly separate laboratories.5
Plaintiff was not responsible for supervising employees. Plaintiff was not responsible for
directly participating in the writing or submission of a grant. And she was not responsible for
establishing daily tasks or reviewing and approving time sheets. Plaintiff was not responsible for
meeting with Dr. Lima on a weekly basis to update her on the progress of the move of equipment
to the new CRISALIS Core. Plaintiff did not participate in Core Director meetings, except for one
special joint meeting held between staff and Directors.
Plaintiff was under the Department of Microbiology and Immunology. Plaintiff was
supervised by Dr. Robert Holt and Dr. Josiah Ochieng.
Nouvet served as Business Manager of the CRISALIS Core.6 Nouvet received a salary that
was significantly higher than that of Plaintiff. He was charged with the responsibility of overseeing
the transfer of all laboratory equipment from each of the five cores to the newly renovated
laboratory space that would house the new CRISALIS Core. Nouvet developed a cost recovery
5
Plaintiff purports to deny this statement, but the support for her denial (paragraphs 7 through 10 of her
declaration (Doc. No. 30-2)) does not actually serve to contradict this statement as it is written; at best, it
provides some context to the statement as written. Moreover, paragraphs 7, 8, and 10 are all about what
other people (Nouvet and Setonia Cook) did or did not do, and Plaintiff has failed to adequately aver
personal knowledge of what these other people did or did not do. Accordingly, the denial is nugatory and
is disregarded by the Court.
6
In describing what facts are undisputed about Nouvet’s job, the Court herein is careful to recognize the
distinction between facts about what Nouvet did and facts regarding what Nouvet was responsible for; this
is because Plaintiff says that the distinction is both real and consequential to her EPA claim.
system to log users within the Core and track expenditures. Specifically, he led the implementation
and systematization of the use of iLab in the CRISALIS Core. Nouvet also was responsible for
contributing to the CRISALIS portion of a grant proposal. Specifically, he read and edited the
grant and contributed to the final version submitted to the NIH.
Nouvet also was responsible for the supervision of an employee named Anja Izban. As her
supervisor, Nouvet established her daily tasks, instructed her regarding the operation of technical
instruments, and reviewed and approved her time sheets.
Nouvet was under the Department of the Office of Research. Plaintiff and Nouvet did not
have the same supervisors; Nouvet was supervised by Dr. Maria de Fatima Lima and Dr. Anil
Shanker. Nouvet was responsible for meeting with Dr. Lima on a weekly basis to provide her with
status updates regarding the move of equipment from their locations at prior cores to the new
CRISALIS Core. And Nouvet was the only CRISALIS staff member to attend meetings of the
Core Directors.
Additionally, Nouvet was provided access to each of the RCMI sub-score accounts for the
CRISALIS Core, whereas Plaintiff was never granted such access and did not hold equivalent
responsibility.7 Nouvet also oversaw the drafting of all the SOPs for all the equipment in
CRISALIS. Additionally, Nouvet was provided access to each of the RCMI sub-score accounts
for the CRISALIS Core, whereas Plaintiff was never granted such access and did not hold
equivalent responsibility.8
7
Plaintiff purports to deny this statement, but the cited support for her denial (her statements in paragraphs
7 and 8 of her declaration (Doc. No. 30-2)) has not been shown to be based on her personal knowledge as
required. Accordingly, the denial is nugatory and is disregarded by the Court.
8
Plaintiff purports to dispute Defendant’s asserted proposition that Plaintiff was never granted such access
and did not hold equivalent responsibility, but the material cited in support of that denial (paragraphs 7 and
8 of her Declaration) actually provides no support for refuting that proposition.
III.
Complaints About, and Termination and Replacement of, Plaintiff
Dean Lima expressed to Mark Smith (title) that Plaintiff’s work performance was
unsatisfactory, and that Plaintiff should have been included in a layoff. Additionally, Nouvet made
complaints to Smith about Plaintiff. Likewise, Dr. Ochieng complained about Plaintiff’s
performance to Smith.9 Smith determined that the allegations of poor performance against Plaintiff
were verified.10 Smith terminated Plaintiff’s employment for insubordination and unsatisfactory
performance.11
9
Plaintiff purports to deny this statement but does so without citing anything to support the denial. (Doc.
No. 30-5 at 7). Accordingly, the denial is nugatory and is disregarded by the Court.
10
Plaintiff purports to deny this statement, but the cited support for her denial (paragraphs 14 through 20
of her Declaration) does not actually serve to contradict this statement as it is written. Each of those seven
paragraphs is a statement about what Plaintiff was or was not told about her performance (including
complaints or concerns regarding her performance); it is easy to reconcile the truth of each of those
statements (and their collective implication that Plaintiff was not told of the concerns or complaints of
anyone besides Nouvet and that Plaintiff was advised that there were any problems with her performance)
with the statement that Smith (rightly or wrongfully) determined (at some unspecified point, and not
necessarily earlier than sometime in 2019) that the allegations of poor performance against Plaintiff were
verified. This is even true of Plaintiff’s statement in paragraph 16 that her “previous supervisor, Dr. Robert
Holt, provided performance evaluations for [her] in 2016, 2017, and 2018, and [she] earned ratings of
‘exceptional’ in all of these evaluations.” (Doc. No. 30-2 at 4). The fact that a supervisor (Holt) provided
favorable performance evaluations for three years ending in 2018 does not mean the Vice President of
Human Relations (Smith) did not determine at some unspecified juncture that allegations of poor
performance against Plaintiff were justified.
11
Plaintiff purports to deny this statement and ostensibly supports the (purported) denial via another citation
to paragraphs 14 through 20 of her Declaration, which the Court has described in the footnote immediately
above. But as before, this citation does not actually serve to contradict this statement as it is written. All of
the statements in paragraphs 14 through 20 of her Declaration can be true without undermining the
possibility that Smith terminated Plaintiff’s employment “for insubordination and unsatisfactory
performance.” The Court notes, however, that it takes the statement as written and that in the Court’s view,
as written the statement does not necessarily convey the actual, subjective reason why Plaintiff was
terminated, but rather only the purported reason, which is not necessarily the actual reason. So the Court
does not treat this (undisputed) statement itself as support for the notion that the purported reason was the
actual reason or that the actual reason was Plaintiff’s insubordination and unsatisfactory performance;
support for such notions must come from elsewhere.
To fill the vacancy left by Plaintiff, Defendant hired Olga Korolkova, a Postdoctoral
Research Associate. Ms. Korolkova is female. Ms. Korolkova performs the duties that would have
been performed by Plaintiff had she remained.
SUMMARY JUDGMENT STANDARDS
I.
Summary Judgment Standards, Generally
Summary judgment is appropriate where there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “By its very terms,
this standard provides that 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). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary
under applicable law is of no value in defeating a motion for summary judgment. See id. at 248.
On the other hand, “summary judgment will not lie if the dispute about a material fact is
‘genuine[.]’” Id.
A fact is “material” within the meaning of Rule 56(c) “if its proof or disproof might affect
the outcome of the suit under the governing substantive law.” Reeves v. Swift Transp. Co., 446
F.3d 637, 640 (6th Cir. 2006) (citing Anderson, 477 U.S. at 248), abrogated on other grounds by
Young v. United. Parcel Serv., 575 U.S. 206 (2015). A genuine dispute of material fact exists if
the evidence is such that a reasonable jury could return a verdict for the non-moving party. Harris
v. Klare, 902 F.3d 630, 634–35 (6th Cir. 2018).
The party bringing the summary judgment motion has the initial burden of identifying
portions of the record that demonstrate the absence of a genuine dispute over material facts.
Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir. 2018) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)). Alternatively, the moving party may meet its initial burden
by otherwise “show[ing]”—even without citing materials of record—that the nonmovant “cannot
produce admissible evidence to support the fact” (for example, the existence of an element of a
nonmovant plaintiff’s claim).” Fed R. Civ. P. 56(c)(1)(B). If the summary judgment movant meets
its initial burden, then in response the non-moving party “must set forth specific facts showing that
there is a genuine issue for trial.” Pittman, 901 F.3d at 628 (quoting Anderson, 477 U.S. at 250).12
Importantly, “[s]ummary judgment for a defendant [that has met its initial burden as the movant]
is appropriate when the plaintiff ‘fails to make a showing sufficient to establish the existence of
an element essential to [her] case, and on which [she] will bear the burden of proof at
trial.’” Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 805–06 (1999) (quoting Celotex, 477
U.S. at 322).
Any party asserting that a fact cannot be or genuinely is disputed—i.e., any party seeking
summary judgment and any party opposing summary judgment, respectively—can support the
assertion either by: (a) citing to materials in the record, including, but not limited to, depositions,
documents, affidavits, or declarations, Fed. R. Civ. P. 56(c)(1)(A), or (b) “showing” (i) that the
adverse party cannot produce admissible evidence to raise a genuine dispute as to that fact or (ii)
that contrary to the claim of the adverse party, the materials cited by the adverse party do not
actually establish the absence or presence (as the case may be) of a genuine dispute as to that fact,
Fed. R. Civ. P. 56(c)(1)(B).
In reviewing a motion for summary judgment, this court must view the evidence in the
light most favorable to the non-moving party. Tlapanco v. Elges, 969 F.3d 638, 647 (6th Cir. 2020)
(citing Anderson, 477 U.S. at 248). Likewise, the “court should view the facts and draw all
reasonable inferences in favor of the non-moving party.” Pittman, 901 F.3d at 628 (citing
12
Courts (appropriately) at times refer interchangeably to a party being able to raise a genuine issue as to a
fact and a reasonable jury being able to find in the party's favor on that fact, and this Court does likewise.
Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Credibility
judgments and weighing of evidence are improper. Hostettler v. Coll. of Wooster, 895 F.3d 844,
852 (6th Cir. 2018). As noted above, where there is a genuine dispute as to any material fact,
summary judgment is not appropriate. Id. The court determines whether sufficient evidence has
been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla
of evidence in support of the non-moving party’s position will be insufficient to survive summary
judgment; rather, there must be evidence upon which the jury could reasonably find for the nonmoving party. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).
A defendant-movant cannot meet its initial burden on motion for summary judgment
merely by claiming that the plaintiff lacks evidence and essentially challenging the plaintiff to
show otherwise. Instead, a defendant-movant must—by pointing to materials of record or
otherwise—show (presumptively, subject to the plaintiff’s response) that the plaintiff could not
prove his claim by a preponderance. See Fed. R. Civ. P. 56(c)(1).13 In other words, the defendantmovant must produce evidence tending to show (though not necessarily conclusively showing) that
the plaintiff cannot raise a genuine issue as to any material fact.14 Nickols v. Morris, 705 F. Supp.
13
The Court rejects cases that have indicated otherwise. See, e.g., O.M.A., S.r.l. v. Simon DeYoung Corp.,
No. 1:10CV0861, 2013 WL 7210503, at *3 (N.D. Ohio Mar. 12, 2013) (“[A summary judgment] movant
in federal court is not required to . . . provide evidence to show that his opponent has no evidence”), R&R
adopted in part, rejected in part on other grounds, No. 1:10 CV 00861, 2014 WL 587171 (N.D. Ohio Feb.
14, 2014); Goldcorp, Inc. v. United States, No. 00-75043, 2002 WL 551042, at *6 (E.D. Mich. Mar. 27,
2002) (“At any rate, even if [the] affidavit were altogether stricken from the record, it appears that the
Government still would be entitled to summary judgment in its favor. After all, this affidavit has been
provided merely to prove a negative: namely, that there is no evidence that the IRS ever received the
protective claim allegedly sent by Plaintiff on or before September 15, 1995. Presumably, then, the
Government could have simply asserted this proposition in its brief and left it to Plaintiff to introduce
evidence calling this issue into question.”).
14
Notably, a defendant-movant typically can show that there is no genuine issue as to any material fact by
showing that there is no genuine issue as to the existence of a fact (usually, the element of a claim) that
absolutely needs to exist for the plaintiff to prevail. If the defendant-movant can make this showing, all
other facts become immaterial (because the plaintiff necessarily will suffer summary judgment anyway),
2d 579, 584–85 (N.D. Tex. 2010) (“The party moving for summary judgment has the initial burden
of informing the Court of the basis for his motion and producing evidence which tends to show
that no genuine issue as to any material fact exists and that he is entitled to judgment as a matter
of law.”), aff'd, 419 F. App'x 534 (5th Cir. 2011).
On a motion for summary judgment, a party may object that the supporting materials
specified by its opponent “cannot be presented in a form that would be admissible in evidence.”
Fed. R. Civ. P. 56(c)(2). Upon such an objection, the proponent of the supporting material must
show that the material is admissible as presented or explain how it could be presented in a form
that would be admissible. Thomas v. Haslam, 303 F. Supp. 3d 585, 624 (M.D. Tenn. 2018);
Mangum v. Repp, 674 F. App’x 531, 537 (6th Cir. 2017) (citing Fed. R. Civ. P. 56(c) advisory
committee’s note to 2010 amendment).
II.
Summary Judgment Standards in the Context of an Indirect-Evidence Theory
under McDonnell Douglas
The Court here will take a moment (or two) to discuss the so-called McDonnell Douglas
framework and its applicability to motions for summary judgment in the context of employmentdiscrimination and retaliation claims in the federal judicial system. The Sixth Circuit has
summarized the applicability and workings of the McDonnell Douglas burden-shifting framework
as follows:
A plaintiff may show discrimination by direct evidence, or a plaintiff
lacking direct evidence of discrimination may succeed on a Title VII claim by
presenting indirect evidence under the framework first set forth in McDonnell
Douglas Corp v. Green, 411 U.S. 792, 802–03, 93 S. Ct. 1817, 36 L.Ed.2d 668
(1973).
To succeed under the McDonnell Douglas framework, the plaintiff must
first make out a prima facie case of discrimination by a preponderance of the
evidence. . . . Once the plaintiff makes out a prima facie case, the burden shifts to
and thus it can be said that the plaintiff (being unable to show a genuine issue as to one material fact) cannot
raise a genuine issue as to any material fact.
the defendant “to articulate some legitimate, nondiscriminatory reason for” the
adverse employment action. Should the defendant do so, the plaintiff then must
prove by a preponderance of the evidence that the stated reasons were a pretext for
discrimination.
Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 606–07 (6th Cir. 2019) (some citations
omitted).
The burden-shifting approach in McDonnell Douglas applies only to discrimination or
retaliation claims premised on so-called indirect (i.e., circumstantial) evidence.15 Redlin v. Grosse
Pointe Pub. Sch. Sys., 921 F.3d 599, 606–07 (6th Cir. 2019). The undersigned has explained:
When a defendant-movant challenges a plaintiff's ability to reach a jury on
an indirect-evidence theory of employment discrimination, there are a number of
steps potentially implicated, though not all of them necessarily need be addressed
in the analysis. The number of steps to be addressed depends on whether the
defendant-movant seeks to prevail at the first step, or at the second and third step,
or at both the first step and the second and third step . . . .
To prevail at the first step of McDonnell-Douglas, the defendant, as the
summary-judgment movant, must meet its initial burden of showing an absence of
evidence from which a reasonable jury could find the plaintiff established a prima
facie case. E.g., Banks v. State of Ohio, No. 94–3866, 1995 WL 118993, * 2 (6th
Cir. Mar. 20, 1995). If the defendant does so, then the burden shifts to the plaintiff
to show that at trial it could “make out a prima facie case of discrimination by a
preponderance of the evidence.” Redlin, 921 F.3d at 606. If the plaintiff fails to
succeed here, then the plaintiff suffers summary judgment in favor of the defendant
on the claim. But if the plaintiff succeeds here, defendant does not prevail at the
first step and is relegated to try instead to prevail at the second and third steps of
McDonnell-Douglas.
At the second step, the defendant-movant has the burden (of production
only) to show a legitimate and non-discriminatory reason for its action(s). Brown,
814 F. App'x at 80 (noting, on the defendant's motion for summary judgment that
it is a “burden of production [that potentially] shifts to the defendant to show a
legitimate, nondiscriminatory reason for the way it treated the plaintiff”). If the
defendant successfully shows evidence of a non-discriminatory reason for its
alleged discriminatory act, the court proceeds to the third step, where “the plaintiff
15
“Direct evidence is such that, if true, requires the conclusion that unlawful retaliation [or discrimination]
was a motivating factor without any inferences or presumptions.” Banks v. Bosch Rexroth Corp., 15 F.
Supp. 3d 681, 693 (E.D. Ky. 2014), aff’d, 610 F. App’x 519 (6th Cir. 2015) (citing Norbuta v. Loctite Corp.,
181 F.3d 102 (6th Cir. 1999)). Indirect evidence is evidence that requires the court to make inferences to
conclude that unlawful retaliation or discrimination was a motivator for an adverse employment action.
must rebut the proffered reason by producing evidence from a which a reasonable
jury could conclude that the proffered reason is actually a pretext” for unlawful
discrimination. Willard v. Huntington Ford, Inc., 952 F.3d 795, 807 (6th Cir. 2020)
(quotations omitted).
Veith v. Tyson Fresh Meat, Inc., No. 3:19-CV-01065, 2022 WL 1231229, at *9–10 (M.D. Tenn.
Apr. 26, 2022).
If the defendant carries its burden to show a legitimate nondiscriminatory reason, then
finally the burden shifts back to the plaintiff to show that the reason offered by the defendant is a
pretext for discrimination. McDonnell Douglas, 411 U.S. at 802–04 (1973); Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 255–56 (1981). This resulting burden is one of persuasion, and
this burden of persuasion (as to pretext) at this stage “merges with the ultimate burden of
persuading the court that she has been the victim of intentional discrimination.” Id. at 256. In other
words, once the burden has shifted back to the plaintiff, the plaintiff must show by a preponderance
of the evidence16 each of two components of pretext: that the defendant’s reasons (i) were not its
true reasons and (ii) were instead actually a pretext for discrimination. Kirilenko-Ison v. Bd. of
Educ. of Danville Indep. Sch., 974 F.3d 652, 661 (6th Cir. 2020). To defeat a summary judgment
motion in such circumstances, the plaintiff must produce sufficient evidence from which the jury
could reasonably reject the defendant’s explanation and infer that the defendant intentionally
discriminated against him. Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir. 2001).
An employee can show pretext “by offering evidence that (1) the 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.” Loyd v. Saint Joseph Mercy
Oakland, 766 F.3d 580, 590 (6th Cir. 2014). “Whichever method the plaintiff employs, he always
16
The “preponderance of the evidence” standard applicable here is the trial standard. At the summary
judgment stage, as suggested above, the standard is modified, such that the question becomes whether a
reasonable jury could make the required finding by a preponderance of the evidence.
bears the burden of producing ‘sufficient evidence from which the jury could reasonably reject
[the defendants’] explanation and infer that the defendants intentionally discriminated against
him.’” Clark v. Walgreen Co., 424 F. App’x 467, 474 (6th Cir. 2011) (quoting Johnson v. Kroger
Co., 319 F.3d 858, 866 (6th Cir. 2003)).
“The three-part test need not be applied rigidly. Rather, ‘[p]retext is a commonsense
inquiry: did the employer fire the employee for the stated reason or not?’” Blizzard v. Marion Tech.
Coll., 698 F.3d 275, 285 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4
(6th Cir. 2009)). “Ultimately the plaintiff must produce ‘sufficient evidence from which a jury
could reasonably reject [the employer’s] explanation of why it fired [or failed to rehire] her.’”
Brown v. Kelsey-Hayes Co., 814 F. App’x 72, 80 (6th Cir. 2020) (quoting Chen, 580 F.3d at 400).
The plaintiff “must meet this evidentiary burden by a preponderance of the evidence.” Id. (citation
omitted). If the plaintiff can do so, he meets his burden of showing that the employer’s stated
reason for the allegedly discriminatory reason was not its true reason.
But something more is required of the plaintiff. That is, the plaintiff must address the
second component of pretext, i.e., that the actual reason was discriminatory. That is, as indicated
above, “[t]o demonstrate pretext, a plaintiff must show both that the employer’s proffered reason
was not the real reason for its action, and that the employer’s real reason was unlawful.”17 EEOC
v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015) (citing first St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 515 (1993);18 and then Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
17
The required second component seems to coalesce with the required overall showing that the plaintiff
must make to meet his or her overall burden of showing unlawful discrimination. Presumably, this is what
the Supreme Court had in mind when it stated that the plaintiff’s burden as to pretext “merges” with the
plaintiff’s overarching burden as to the discrimination claim as a whole. Burdine, 450 U.S. at 256.
18
One might reasonably ask whether St. Mary’s, which as noted in Ford Motor Co. required the plaintiff
to show both components, effectively overruled Burdine in one respect. Specifically, this aspect of St.
148 (2000)).19 In other words, if the burden has shifted back to the plaintiff, the plaintiff’s trial
burden would be to show by a preponderance of the evidence that the defendant’s reasons were
not its true reasons and were instead actually a pretext for retaliation. Kirilenko-Ison, 974 F.3d at
661. “To avoid summary judgment, then, the [plaintiff] must present evidence from which a
reasonable jury could find that poor performance was not the real reason that [the defendant]
terminated [the plaintiff], and that unlawful retaliation in fact was.” Ford Motor Co., 782 F.3d at
767. In some cases, the evidence that the defendant’s proffered reason was not the real reason
serves equally as evidence that the real reason was discriminatory, and vice versa. After all,
evidence may suggest that the defendant’s proffered (non-discriminatory) reason was not the real
reason precisely because it suggests that the real reason was discriminatory; likewise, evidence
may suggest that the defendant’s proffered (non-discriminatory) reason was discriminatory
precisely because it suggests that (suspiciously) the proffered reason was not the real reason. But
under Sixth Circuit law, the Court must be mindful to require evidence of both kinds, even if it
turns out to all be the same evidence.
Mary’s seems in tension with Burdine’s statement that the plaintiff may meet its burden of persuasion as to
pretext “either directly by persuading the court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Id.
at 256. The dissent in St. Mary’s certainly saw the tension. But as far as the undersigned can tell, Burdine
has never been considered to have been overruled in any respect, and certainly neither the Supreme Court
nor the Sixth Circuit has shown any compunction about citing Burdine (at least parts of Burdine other than
the statement apparently displaced by St. Mary’s as noted above) in the aftermath of St. Mary’s. The Court
is confident at the very least that the aspects of Burdine upon which the Court relies remain good law after
St. Mary’s.
19
One might ask why it is not enough to speak simply in terms of the requirement to show that the real
reason was retaliation (the second component of pretext) without mentioning a separate requirement to
show that the real reason was not the (non-retaliatory) reason proffered by Defendant (the first component
of pretext). After all, the second seems necessarily subsumed in the first. But the Sixth Circuit has
articulated these as separate requirements that each must be satisfied, and so the Court will proceed
accordingly.
It is worth summarizing in some detail how all of these (variously shifting and conditional)
requirements apply in the summary judgment context in particular, once the above-referenced
principles of summary judgment are applied to the unique framework of indirect-evidence cases
under McDonnell Douglas. As one court put it, addressing Title VII claims of discrimination, “[a]
defendant’s summary judgment motion slightly modifies the order of [the various McDonnell
Douglas] showings.” Sherman v. Fountain Valley Police Dep’t, No. SACV17-2217JVS(DFMX),
2019 WL 4238873, at *7 (C.D. Cal. Apr. 2, 2019) (internal quotation marks omitted).
The Sixth Circuit spoke very helpfully on this topic:
[W]hen a[ ]discrimination plaintiff bases his case on indirect evidence (i.e.,
evidence requiring inferences to reach the conclusion that the defendant
discriminated against the plaintiff), we apply the burden-shifting framework first
set forth in McDonnell Douglas v. Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817,
36 L.Ed.2d 668 (1973). Rowan, 360 F.3d at 547; Town v. Mich. Bell Tel. Co., 455
Mich. 688, 568 N.W.2d 64, 67–68 (1997). “On a motion for summary judgment, a
district court considers whether there is sufficient evidence to create a genuine
dispute at each stage of the McDonnell Douglas inquiry.” Cline v. Catholic Diocese
of Toledo, 206 F.3d 651, 661 (6th Cir.[ ]2000) (applying the McDonnell Douglas
framework to a sex-discrimination claim). Thus, the plaintiff must first submit
evidence from which a reasonable jury could conclude that he or she established a
prima facie case of discrimination. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173,
1186 (6th Cir.[ ]1996) (applying the McDonnell Douglas framework to a disabilitydiscrimination claim). The defendant must then offer admissible evidence of a
legitimate, nondiscriminatory reason for its action. Id. If the defendant does so, the
plaintiff must identify evidence from which a reasonable jury could conclude that
the proffered reason is actually a pretext for unlawful discrimination. Id. Although
the burdens of production shift, “[t]he ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the plaintiff remains at
all times with the plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253, 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981).
Blair v. Henry Filters, Inc., 505 F.3d 517, 524 (6th Cir. 2007), overruled on other grounds, Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167, 179 (2009).
It is worth emphasizing some points about what the undersigned perceives to be an underanalyzed topic, namely, the burdens born specifically by a defendant who moves for summary
judgment as to a claim of employment discrimination based on an indirect-evidence theory in
particular. As indicated above, the general idea under Rule 56 and the cases interpreting it is that
the summary judgment movant bears the initial burden of showing, subject to the non-movant’s
opportunity to show to the contrary, that the non-movant cannot raise a genuine issue as to a
material fact. See Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir. 2018) (“The
moving party must demonstrate the ‘basis for its motion, and identify[ ] those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’”
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986))). In the case of a defendant-movant,
the defendant-movant thus bears the initial burden of showing, subject to the plaintiff’s opportunity
for rebuttal, that the plaintiff cannot raise a genuine issue as to one or more elements of the
plaintiff’s claim(s) as to which summary judgment is sought. But because of the unique nature of
the three-step McDonnell-Douglas framework and the particular burdens the parties would bear at
trial, a defendant-movant’s burdens are not so easily understood and are worth clarifying.
As for the first step, as noted above, the Sixth Circuit has stated that “the plaintiff must first
submit evidence from which a reasonable jury could conclude that he or she established a prima
facie case of discrimination.” Blair, 505 F.3d at 524. But actually this is true only if the defendantmovant met its initial burden of showing the absence of sufficient evidence for a jury to reach such
a conclusion. This is because, as the Sixth Circuit has made clear, the usual obligation of the
summary judgment movant to make the initial showing indeed applies to defendant’s motions for
summary judgment directed at indirect-evidence theories. E.g., Banks v. Ohio, No. 94-3866, 1995
WL 118993, at * 2 (6th Cir. Mar. 20, 1995) (“The defendants met their initial burden of showing
an absence of evidence to establish a prima facie case by showing that no one was similarly
situated, or treated more favorably than she was.”); Sherman, 2019 WL 4238873, at *7 (noting
that the defendants moving for summary judgment as to claims based on an indirect-evidence
theory “have the initial burden to either (1) negate an essential element of [the plaintiff]'s prima
facie case or (2) establish a legitimate, nondiscriminatory reason for not promoting [the
plaintiff].”); Qualls v. Regents of Univ. of California, No. 1:13-CV-00649-LJO, 2015 WL
5604293, at *9 (E.D. Cal. Sept. 23, 2015) (noting that “under McDonnell Douglas, Defendants
have the initial burden of demonstrating that Plaintiff cannot make a prima facie showing” of a
Title VII claim), order vacated in part on reconsideration on other grounds sub nom. Qualls v.
Regents of the Univ. of California, No. 1:13-CV-00649-LJO-SMS, 2015 WL 6951757 (E.D. Cal.
Nov. 10, 2015) .20
As for the second step, it is worth emphasizing that upon a defendant’s motion for summary
judgment (just as at trial), if the burden does shift to the defendant-movant to show a legitimate
and non-discriminatory reason for its action(s), then that burden is one of mere production. Brown,
814 F. App’x at 80 (noting on the defendant’s motion for summary judgment that it is a “burden
of production [that potentially] shifts to the defendant to show a legitimate, nondiscriminatory
reason for the way it treated the plaintiff”). This means that the defendant merely has to offer
admissible evidence adequate to support a finding that the defendant-movant had such a reason
and does not have to show that no reasonable jury could fail to find that the defendant-movant had
such a reason.
20
On reconsideration, the defendants specifically challenged this proposition. The court, though granting
the defendants’ motion in part on other grounds, specifically declined to disavow this proposition. Qualls
v. Regents of the Univ. of California, No. 113CV00649LJOSMS, 2015 WL 6951757, at *3 (E.D. Cal. Nov.
10, 2015). And the court noted what this Court is addressing herein: the “complex issues related to the
interplay of the summary judgment standard and McDonnell Douglas.” Id.
As for the third step, it does not appear that the defendant-movant bears any initial burden.
That is, the defendant-movant need not make an initial showing that the plaintiff cannot raise a
genuine issue as to pretext.21 The rationale for this, presumably, is that the defendant—by showing
evidence of an actual (legitimate and non-discriminatory) reason—in the second step already put
the onus back on the plaintiff to raise a genuine issue that the reason was pretextual; thus, the
defendant need not specifically attack any claim of pretext in order for the plaintiff to be obligated
to present sufficient evidence of pretext. And in the context of summary judgment, sufficient
evidence means evidence sufficient for a jury to find pretext by a preponderance of the evidence.
Id.; see also Blair, 505 F.3d at 532 (“[T]o survive summary judgment a plaintiff need only produce
enough evidence to . . . rebut, but not disprove, the defendant’s proffered rationale.”).
In the Court’s view, what the summary judgment analysis boils down to, stated as concisely
as possible (which, alas, is not particularly concisely), is set forth in the following paragraph.
To obtain summary judgment on Title VII or THRA claims grounded exclusively on the
so-called “indirect-evidence” theory, the defendant must either (i) show that there is no genuine
issue of material fact as to at least one of the elements of the plaintiff’s prima facie case (such that
the defendant necessarily is entitled to judgment as a matter of law based on the absence of that
element); or, failing that, (ii) (a) make an evidentiary showing22 that there was a legitimate,
nondiscriminatory reason for its alleged actions and then (b) show that there is no genuine issue
of material fact as to pretext (such that the defendant necessarily is entitled to judgment as a matter
of law based on the absence of pretext). On the other hand, the plaintiff will avoid summary
21
The cases consistently and conspicuously omit any references to any such initial burden for the defendant
at the third step of McDonnell Douglas.
22
To be clear, the requirement here is not merely to articulate a legitimate reason, but also (as discussed
below) to present evidence that the articulated legitimate reason was in fact the reason.
judgment if : (i) either (a) the defendant fails to meet its initial burden to show the lack of a genuine
issue of material fact as to any or more elements of the plaintiff’s indirect-evidence prima facie
case, or (b) the plaintiff presents sufficient evidence to demonstrate a genuine issue of material
fact as to any element(s) of such prima facie case as to which the defendant met its initial burden
to show the lack of a genuine issue of material fact; and (ii) either (a) the defendant cannot make
an evidentiary showing of a legitimate, nondiscriminatory reason for its alleged actions, or, if the
defendant can make such a showing, (b) the plaintiff demonstrates that there is a genuine issue of
material fact as to pretext.23
As will be further discussed below, multiple claims of Plaintiff are premised on indirect
evidence and thus subject to the McDonnell Douglas framework.
ANALYSIS
I.
Count I: Unequal Pay in Violation of the Equal Pay Act24
The EPA provides, in pertinent part:
No employer having employees subject to any provisions of this section shall
discriminate, within any establishment in which such employees are employed,
between employees on the basis of sex by paying wages to employees in such
establishment at a rate less than the rate at which he pays wages to employees of
the opposite sex in such establishment for equal work on jobs the performance of
which requires equal skill, effort, and responsibility, and which are performed
under similar working conditions, except where such payment is made pursuant to
(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings
by quantity or quality of production; or (iv) a differential based on any other factor
other than sex . . . .
29 U.S.C. § 206(d)(1).
23
As indicated below, courts’ references to a plaintiff’s (conditional) requirement to show “pretext” is
actually a (conditional) requirement to show not just pretext (i.e., that the claimed reason was provided to
conceal the real reason) but also to show that the real reason was of an unlawful, discriminatory nature.
24
At the beginning of her response, due to what evidently is a scrivener’s error, Plaintiff refers to this as
the “Equal Protection Act.” (Doc. No. 1). It goes almost without saying that no “Equal Protection Act” is
implicated in this case.
The Sixth Circuit has explained:
The EPA prohibits employers from paying an employee at a rate less than
that paid to an employee of the opposite sex for performing equal work. See 29
U.S.C. § 206(d)(1). In order to establish a prima facie case of wage discrimination
under the EPA, plaintiffs must show that an employer pays different wages to
employees of opposite sexes “for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are performed under
similar working conditions.” Corning Glass Works v. Brennan, 417 U.S. 188, 195,
94 S. Ct. 2223, 41 L.Ed.2d 1 (1974) (quoting 29 U.S.C. § 206(d)(1)). Jobs need not
be identical in order to be considered “equal work” under the EPA. Shultz v.
Wheaton Glass Co., 421 F.2d 259, 265, & n. 10 (3d Cir.), cert. denied, 398 U.S.
905, 90 S. Ct. 1696, 26 L.Ed.2d 64 (1970). Whether a job is substantially equal for
purposes of the EPA is determined on a case-by-case basis and “resolved by an
overall comparison of the work, not its individual segments.” Odomes v. Nucare,
Inc., 653 F.2d 246, 250 (6th Cir.[ ]1981) (orderlies and nurse’s aides perform
substantially equal work).
“Unlike the showing required under Title VII's disparate treatment theory,
proof of discriminatory intent is not required to establish a prima facie case under
the Equal Pay Act.” Peters v. City of Shreveport, 818 F.2d 1148, 1153 (5th Cir.),
cert. denied, 485 U.S. 930, 108 S. Ct. 1101, 99 L.Ed.2d 264 (1988), abrogated on
other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104
L.Ed.2d 268 (1989). “Once the plaintiff establishes a prima facie case, the
defendant must ‘prove’ that the wage differential is justified under one of the four
affirmative defenses set forth under § 206(d)(1) of the Equal Pay Act: (1) a seniority
system; (2) a merit system; (3) a system which measures earnings by quantity or
quality of production; or (4) any other factor other than sex.” Buntin v. Breathitt
County Bd. of Educ., 134 F.3d 796, 799 (6th Cir.[ ]1998) (citing Corning Glass
Works, 417 U.S. at 196, 94 S. Ct. 2223). Because these are affirmative defenses,
the defendant bears the burden of proof. See Corning Glass Works, 417 U.S. at 197,
94 S. Ct. 2223; see also EEOC v. Romeo Cmty. Schs., 976 F.2d 985, 988 (6th Cir.[
]1992). The burden shifting under the EPA differs from the Title VII framework,
in which a “defendant need only assert a legitimate, non-discriminatory reason for
the different treatment afforded the plaintiff as compared to her similarly situated
male co-workers,” Buntin, 134 F.3d at 799 n. 6, at which point the burden shifts
back to the plaintiff to show pretext. Under the EPA, however, the plaintiff “never
bears the burden of persuasion regarding the affirmative defenses.” Id. at 800 n. 7.
Beck-Wilson v. Principi, 441 F.3d 353, 359–60 (6th Cir. 2006). The Court notes that although the
applicable comparison is between the respective work (of the Plaintiff and her comparator) as a
whole, and not of the individual segments of the respective employees’ work, an assessment of
overall work necessarily entails an examination of the individual segments; only by understanding
the trees (the individual segments) can the Court see the forest (the overall comparison).
“Under the EPA, plaintiff must provide specific evidence of her actual duties to establish
she was performing the same job as her male comparators.” Foco v. Freudenberg-NOK Gen.
P’ship, 892 F. Supp. 2d 871, 877 (E.D. Mich. 2012) (citing Corning Glass Works v. Brennan, 417
U.S. 188, 195 (1974)), aff’d, 549 F. App’x 340 (6th Cir. 2013).
“Jobs need not be identical in order to be considered ‘equal work’ under the EPA.” Beck–
Wilson v. Principi, 441 F.3d 353, 359 (6th Cir. 2006). In a comparison of jobs for at the prima
facie stage of an EPA claim, the proper focus is on actual job requirements and duties, rather than
job classifications or titles. Vehar v. Cole Nat. Grp., Inc., 251 F. App’x 993, 999 (6th Cir. 2007);
Beck-Wilson, 441 F.3d at 362. “Because the comparison at the prima facie stage is of the jobs and
not the employees, ‘only the skills and qualifications actually needed to perform the jobs are
considered.’” Id. at 363.25 “Factors like education and experience are considered as a defense to
an employer’s liability rather than as part of a plaintiff’s prima facie case.” Id.
As the undersigned noted decades ago, and has had many occasions to reiterate since taking
the bench, there is a continuum between things (such as, in this case, the respective job duties of
two different persons) that runs from them being “the same” (i.e., “identical”), to them being
merely “similar,” and then to them being “different.” Eli J. Richardson, Taking Issue with Issue
Preclusion: Reinventing Collateral Estoppel, 65 Miss. L.J. 41, 70 (1995). And for many
25
From this, it follows that the focus is on the work the employer actual expects the employee to perform—
the duties actually involved—even if such expectations differ from the expectations purported by a formal
job description. Boaz v. Fed. Exp. Corp., 107 F. Supp. 3d 861, 880 (W.D. Tenn. 2015) (“The EPA looks to
the similarity of the actual duties involved instead of job classifications or titles.” (citing 29 C.F.R. §
1620.13(e))), aff'd sub nom. Boaz v. FedEx Customer Info. Servs., Inc., 668 F. App'x 152 (6th Cir. 2016).
On the other hand, the Court has little trouble concluding that a formal job description can be
evidence of what duties the employer expects the employee to perform.
comparisons between two things, the specific location on the continuum is a subjective
determination that is in the eye of the beholder. See id. Experience unquestionably shows that
reasonable people often can and do disagree among each other about whether two compared items
are “the same”/“identical,” or “similar,” or “different.” But if the beholder is a court making a
determination in a particular case, the court must make that subjective call, calling it like it sees it;
the court cannot do otherwise.
The EPA implicates these concepts, albeit with some variation given the specific belowdiscussed terminology of the standard(s) courts use for evaluating a prima facie case under the
EPA. Notably, such terminology does not include “identical” or “same,” and although it does
include “similar,” “similar” is not a term used in the primary articulation of the standard. Instead,
according to the Sixth Circuit, the applicable concept is “equal work”—as specifically contrastable
with “identical jobs”—although, frustratingly, the Sixth Circuit has at the same time indicated that
the applicable concept is “substantially equal” jobs. Beck-Wilson, 441 F.3d at 359 (emphasis
added). In the view of the undersigned, whether two persons perform “equal work” is not selfevidently the same issue as whether they have “substantially equal jobs.” And yet the undersigned
must harmonize these standards in his own mind in order to apply a unitary standard. So doing, he
perceives that he must decline to recognize any distinction between a particular “job” and
particular “work”; that is, he must treat the respective employees’ particular “jobs” as being coterminous (and synonymous) with the particular “work” that they do. Indeed, Beck-Wilson seems
to treat “work” and “job[s]” synonymously. And to reconcile the distinction between “equal” and
“substantially equal,” the undersigned will treat the standard as closer to “substantially equal”; that
means that he will look primarily for exact “equal[ity,]” (whatever that is) and yet allow a certain
degree—an “[in]substantial” degree (whatever that is)—of variance from exact “equality” before
determining that the standard has not been met. The application of such a standard, it bears
emphasizing, is extremely subjective and, in some cases, eminently debatable. In this case,
however, the Court, calling it like it sees it, is confident that the standard has not been met and that
therefore Plaintiff has failed to establish a prima facie case.
The Court has outlined above the undisputed facts regarding Plaintiff’s position vis-à-vis
Nouvert’s position. The Court concludes that these facts reflect that the jobs were not equal, just
as Defendant contends. The jobs clearly are different, inasmuch as they varied substantially with
respect to responsibilities, activities, contacts, department of employment, identity of supervisors,
and status (or lack of status) as a supervisor of another employee. The Court realizes that such
differences are not necessarily dispositive of whether these two performed “equal work,” inasmuch
as “work” can be “equal” even if it is not “identical” and perhaps even if it is substantially different.
But such substantial differences certainly are relevant to whether the work was equal, especially
where, as here, one draws the clear impression that Nouvet’s duties and activities are not just
different from Plaintiff’s but elevated above Plaintiff’s duties in the sense of his work being rather
broader, more consequential, and more discretionary. And in the Court’s view, ultimately two
differences in particular clinch that the work of the two was not equal: the fact that Nouvet received
significantly higher pay than Plaintiff and the fact that Nouvet supervised (and supervised actively,
not just superficially per an organization chart) one other employee whereas Plaintiff did not.
This strikes the Court as a relatively easy call to make, despite the subjectivity of the notion
of “equal work.” Seeking to avoid this result, Plaintiff relies on the propositions that (i) even
though Nouvet had a different job description calling for different duties, Plaintiff and Nouvet
“performed the same duties”; and (ii) Nouvet “did not actually perform the duties detailed in his
job description.” For these two related propositions, Plaintiff cites, respectively, only paragraph
12 of her Declaration and 6 lines from page 205 of her deposition. But her statement in paragraph
12 is entirely conclusory, stating only that “[a]though we had different job titles, Mr. Nouvet and
I performed the same or similar duties [during the purportedly relevant time period, i.e.,] from the
time that he became Business Manager of the CRISALIS Core in July 2019 until my termination
in December 2019.” (Doc. No. 30-2 at 3). This kind of statement needs to be backed up by facts,
because it is a mere (subjective) verbal characterization (“same or similar’) of the outcome of the
comparison at issue; the undersigned will not accept a self-serving, wholly subjective
characterization like this unless it is shown to be reasonable by supporting factual matter—none
of which is provided here. And similarly, the statement has not been shown to be made on personal
knowledge, beyond the conclusory assertion of personal knowledge that (as discussed above) the
Court must disregard. Although Plaintiff surely has personal knowledge of her own duties
performed, she by no means would necessarily know all (or even anywhere close to all) of the
duties that her comparator, Nouvet, performed; such knowledge must be shown and not merely
presumed, and Plaintiff does nothing to show it.
Plaintiff’s argument fails for this reason alone. It also fails alternatively because Plaintiff
has done nothing to support her implication that the comparison of duties cannot be based on the
duties that the comparator was supposed to perform rather than the duties that the comparator
actually performed. The implication may be correct, but Plaintiff has not supported it. And there
are valid reasons why the implication might be incorrect; arguably an employer should not be held
liable when it paid a male more than a female based on what it truly thought and expected in good
faith the male would be doing based on the male’s job description, even though it turned out
(perhaps without the employer’s contemporaneous knowledge)26 that the male did not do all that
he was supposed to do according to the job description.
Accordingly, the Court will grant summary judgment to Defendant on Count I.
II.
Counts II and IV: Retaliation in Violation of the Equal Pay Act and Title VII,
Respectively
A. Applicable Law
It is unlawful for an employer “to discharge or in any other manner discriminate against
any employee because such employee has filed any complaint or instituted or caused to be
instituted any proceeding under or related to this chapter, or has testified or is about to testify in
any such proceeding.” 29 U.S.C. § 215(a)(3). The chapter in this provision relates specifically to
the Fair Labor Standards Act, not the Equal Pay Act, and Section 206 is not included within that
chapter. Nevertheless, courts have treated this provision as prohibiting retaliation related to
complaints regarding alleged violations of Section 206(d)(1); the Tenth Circuit (in a case embraced
by the Sixth Circuit, as noted below) has indicated that this is because “the Fair Labor Standards
Act . . . is an [a]ct of which the Equal Pay Act is a part[.]” Love v. RE/MAX of Am., Inc., 738 F.2d
383, 387 (10th Cir. 1984). Thus, it does not matter that the EPA (29 U.S.C. § 206(d)(1) in
particular) is not codified in the same “chapter” of Title 29 of the United States Code that 29 U.S.C.
§ 215(a)(3) is codified in; Section 215(a) is deemed to prohibit retaliation for certain kinds of
complaining about alleged violations of the EPA (in particular, the kinds of complaining that rise
to the level of “protected conduct” as that term is understood specifically in the context of
retaliation claim, as discussed below).
26
This suggests an additional shortcoming in Plaintiff’s argument: Plaintiff does not establish that
Defendant knew that Nouvet was doing less than his job description indicated he should do—thus leaving
open the possibility that Defendant was providing Nouvet more pay than Plaintiff based on a good-faith
belief (which could be relevant under the EPA, as far as Plaintiff indicates) that Nouvet was doing
everything that his position required according to the job description.
The Court here has used the word “retaliation,” but Section 215(a)(3) does not use that
term. So it is important to note that the Court at times herein uses that word as shorthand for the
kinds of employer actions (called “adverse actions,” as discussed below) that cannot legally be
taken against an employee due to the employee having engaged in “protected conduct.”
A claim of retaliation under the EPA (“EPA-retaliation claim”) potentially can exist even
if Plaintiff never “filed any complaint or instituted or caused to be instituted any proceeding under
or related to [the EPA],” never “testified,” and never “[wa]s about to testify in any such
proceeding.” 29 U.S.C. § 215(a)(3). The Sixth Circuit explained why:
In Love[], the Court held that “[t]he Act also applies to the unofficial
assertion rights through complaints at work.” [738 F.2d] at 387. The Love Court
held that it is the assertion of statutory rights which is the triggering factor, not the
filing of a formal complaint. Id. This view is in accord with other circuits.
EEOC v. Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir. 1992). Embracing Love, the Sixth Circuit
expressly rejected the view that the EPA “should be strictly construed and a retaliation claim
allowed only for actions occurring after the complaining employee has instituted formal
proceedings with the EEOC.” Id.
In other words, a plaintiff can be deemed to have engaged in “protected conduct” even
without having formally filed, formally testified, or been about to formally testify as contemplated
by the words of Section 215(a)(3) itself. The notion of “protected conduct” is broader, covering
complaints (and acts in furtherance of complaints) less formal and unassociated with a pending
“proceeding” as such.
It is appropriate to analyze an EPA-retaliation claim (to the extent asserted under an
indirect-evidence theory) under McDonnell Douglas burden-shifting framework. Lindsley v. TRT
Holdings, Inc., 984 F.3d 460, 469 (5th Cir. 2021). The same is true, unsurprisingly, for a claim of
retaliation in violation of Title VII (“Title VII-retaliation claim”). See id. Plaintiff relies solely on
an indirect-evidence theory, so the McDonnell Douglas theory is applicable to Count II and Count
IV. And Plaintiff does not present any facts or legal argument in support of one count and not the
other, but rather treats the analysis as the same as to both counts inasmuch as her argument for her
Title VII retaliation-claim merely refers back to her argument for the EPA-retaliation claim. (Doc.
No. 30 at 9). Defendant does likewise. (Doc. No. 26 at 19). And so will the Court below, referring
to the law of Title VII-retaliation claims but treating such law as applicable also to EPA-retaliation
claims.
Title VII makes it unlawful to retaliate against employees for engaging in protected
conduct. See 42 U.S.C. § 2000e-3(a). “In order to establish a[n indirect-evidence] prima facie case
of retaliation under Title VII, an employee must establish that (1) he or she engaged in protected
activity, (2) the employer knew of the exercise of the protected right, (3) an adverse employment
action was subsequently taken against the employee, and (4) there was a causal connection
between the protected activity and the adverse employment action.” 27 Niswander v. Cincinnati
Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008); accord Taylor, 703 F.3d at 336 (“[Plaintiff] does not
present direct evidence of retaliation, and, therefore, she must demonstrate by a preponderance of
the evidence four elements: (1) she engaged in a protected activity under Title VII, (2) the exercise
of protected rights was known by [her supervisor], (3) [her supervisor] took [an] adverse
employment action against [Plaintiff], and (4) there was a causal connection between the adverse
employment action and the protected activity.”). The Sixth Circuit has noted that “the burden of
establishing a prima facie case of retaliation is not onerous[.]” Hatchett v. Health Care & Ret.
Corp. of Am., 186 F. App’x 543, 550 (6th Cir. 2006) (internal quotation marks and citation
omitted). Contributing to such lack of onerousness is the relatively broad notion of “adverse
27
Below, when speaking in its own voice (as opposed to quoting another source), the Court refers to this
fourth element for short as the “causal connection.”)
employment action” in the context of retaliation claims in particular. See Niswander, 529 F.3d at
720 (“In contrast to Title VII’s discrimination provision, the ‘adverse employment action’
requirement in the retaliation context is not limited to an employer’s actions that affect the terms,
conditions, or status of employment, or those acts that occur in the workplace. The retaliation
provision instead protects employees from conduct that would have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”) (citation and some internal quotation
marks omitted).
Protected conduct includes opposing any practice made unlawful by Title VII, or making
a charge or testifying, assisting, or participating in any manner in an investigation, proceeding, or
hearing under Title VII. 42 U.S.C. § 2000e-3(a). Reporting or complaining of racist conduct to
management also constitutes protected conduct. Fite v. Comtide Nashville, LLC, 686 F. Supp. 2d
735, 753 (M.D. Tenn. 2010); Pendleton v. Bob Frensley Chrysler Jeep Dodge Ram, Inc., No.
3:14C02325, 2016 WL 2927983, at *8 (M.D. Tenn. May 19, 2016).
Retaliation claims are subject to the McDonell-Douglas framework if there is no direct
evidence of retaliation. Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). Thus, a
plaintiff “may prove [subject to the defendant’s rebuttal as to why it took the adverse employment
action(s)] unlawful retaliation by presenting direct evidence of such retaliation or by establishing
a prima facie case under the McDonnell Douglas framework.” Taylor v. Geithner, 703 F.3d 328,
336 (6th Cir. 2013) (quoting Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003)).
B. Analysis
Defendant claims that Plaintiff cannot raise a genuine issue as to the existence of the fourth
element of an indirect-evidence prima facie case of retaliation, i.e., a causal connection. The Sixth
Circuit has previously explained what is required to establish a causal connection for purposes of
an indirect-evidence prima facie case:
To prove causation in a Title VII retaliation case, a plaintiff must show that
the employee’s protected activity was a “but for” cause of the employer’s adverse
action against her, meaning the adverse action would not have occurred absent the
employer’s desire to retaliate. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338,
352, 360, 133 S. Ct. 2517, 186 L.Ed.2d 503 (2013). In other words, “a plaintiff
must produce sufficient evidence from which an inference could be drawn that the
adverse action would not have been taken had the plaintiff not filed a discrimination
action” or otherwise engaged in protected activity. Nguyen v. City of Cleveland,
229 F.3d 559, 563 (6th Cir. 2000). At the prima facie stage, this burden “is not
onerous,” and can be met through “evidence that defendant treated the plaintiff
differently from similarly situated employees or that the adverse action was taken
shortly after the plaintiff’s exercise of protected rights.” Id.
George v. Youngstown State Univ., 966 F.3d 446, 459–60 (6th Cir. 2020). “[T]he plaintiffs must,
among other things, show ‘a causal link’ between a protected activity and the adverse employment
action. That is, the evidence ‘must be sufficient to raise an inference that the protected activity,’
such as complaining to management about racial harassment, ‘was the likely reason for the adverse
action.’” Fite, 686 F. Supp. 2d at 753 (quoting Wade v. Knoxville Utils, Bd., 259 F.3d 452, 463
(6th Cir. 2001)). Or, to put it only slightly differently, “[t]o establish a causal connection between
the protected activity and the adverse employment action, a plaintiff must produce sufficient
evidence from which an inference could be drawn that the adverse action would not have been
taken in the absence of the protected activity.” Hatchett 186 F. App’x at 550. Or to put it yet
another way,
In order to establish such a causal connection, a plaintiff must show some type of
retaliatory intent. [The plaintiff] therefore had to establish that the true motivation
for [the adverse employment action(s)] were not for the reasons given, but were
instead based on the fact that he [engaged in protected conduct].
Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 308 (6th Cir. 2016).
The Sixth Circuit has held that the causal connection can be inferred at the summary
judgment stage when the adverse employment action and the protected conduct occur close in
time:
With regard to the last element, establishment of a “causal connection”
between the protected activity and the adverse employment action, “[a]lthough no
one factor is dispositive in establishing a causal connection, evidence . . . that the
adverse action was taken shortly after the plaintiff’s exercise of protected rights is
relevant to causation.” Nguyen, 229 F.3d at 563. In fact, this Circuit has embraced
the premise that in certain distinct cases where the temporal proximity between the
protected activity and the adverse employment action is acutely near in time, that
close proximity is deemed indirect evidence such as to permit an inference of
retaliation to arise. See, e.g., Brown v. ASD Computing Ctr., 519 F. Supp. 1096,
1116 (S.D. Ohio 1981) (“where there is no direct proof of a retaliatory motive,
retaliation may be imputed if the timing of the retaliatory act is such as to allow an
inference of retaliation to arise”), aff’d sub nom. Brown v. Mark, 709 F.2d 1499
(6th Cir.1983); see also Nguyen, 229 F.3d at 567 (noting that there are instances in
which “evidence of temporal proximity alone would be sufficient to support” an
inference of a causal link); Parnell v. West, No. 95–2131, 1997 WL 271751, at *3
(6th Cir. May 21, 1997) (noting that although “[a] time lag of seven months does
not necessarily support an inference of a causal link[,] previous cases that have
permitted a prima facie case to be made based on the proximity of time have all
been short periods of time, usually less than six months”).
Various of our sister circuits have also accepted this concept. See, e.g.,
Oliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir.1988) (employee’s
discharge “soon after” engaging in protected activity “is indirect proof of a causal
connection between the firing and the activity because it is strongly suggestive of
retaliation”); Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir.1986)
(“[c]ausation sufficient to establish a prima facie case of unlawful retaliation may
be inferred from the proximity in time between the protected action and the
allegedly retaliatory discharge”); Burrus v. United Tel. Co. of Kansas, 683 F.2d
339, 343 (10th Cir.1982) (“causal connection may be demonstrated by evidence of
circumstances that justify an inference of retaliatory motive, such as protected
conduct closely followed by adverse action”); Grant v. Bethlehem Steel Corp., 622
F.2d 43, 46 (2d Cir.1980) (“proof of causal connection can be established indirectly
by showing that protected activity is followed by discriminatory treatment”).
DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004). In DiCarlo, the Sixth Circuit found that
granting summary judgment on a retaliation claim was inappropriate when 21 days elapsed
between the filing of an EEOC complaint and the plaintiff’s termination; the court reasoned that
“the temporal proximity between the two events is significant enough to constitute indirect
evidence of a causal connection so as to create an inference of retaliatory motive.” Id. at 421-422.
The Sixth Circuit later clarified its holding in DiCarlo after confusion arose as to the circumstances
under which plaintiffs must present evidence of causation beyond mere temporal proximity:
Where an adverse employment action occurs very close in time after an
employer learns of a protected activity, such temporal proximity between the events
is significant enough to constitute evidence of a causal connection for the purposes
of satisfying a prima facie case of retaliation. But where some time elapses between
when the employer learns of a protected activity and the subsequent adverse
employment action, the employee must couple temporal proximity with other
evidence of retaliatory conduct to establish causality.
The reason for this distinction is simple: if an employer immediately
retaliates against an employee upon learning of his protected activity, the employee
would be unable to couple temporal proximity with any such other evidence of
retaliation because the two actions happened consecutively, and little other than the
protected activity could motivate the retaliation. Thus, employers who retaliate
swiftly and immediately upon learning of protected activity would ironically have
a stronger defense than those who delay in taking adverse retaliatory action.
Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (internal citation omitted).
Therefore, in the Sixth Circuit, if an adverse employment action is “very close in time” after—i.e.,
occurs “immediately” upon—protected conduct, the temporal proximity by itself can suffice to
raise a genuine dispute as to a causal connection in order to enable the retaliation claim to survive
summary judgment, but if “some time” elapses the plaintiff must produce evidence of additional
discriminatory conduct. Naturally, the devil may be in the details as to what does or does not fall
within the quoted terms, which are rather subjective in nature.
“The burden of proof at the [indirect-evidence] 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.” Dixon v. Gonzales,
481 F.3d 324, 333 (6th Cir. 2007). What this means is that the real battle regarding causation often
will occur not at the prima facie case (first) stage, but rather at the latter two stages.
Regarding a direct-evidence theory of retaliation, this Court previously has noted:
For a plaintiff to prevail under a theory of direct evidence of retaliation, he
would have to show both “blatant remarks” revealing the defendant’s retaliatory
intent and that the retaliatory intent was a motivating factor in the defendant's
adverse employment action toward him. Mansfield v. City of Murfreesboro, 706 F.
App’x 231, 235–36 (6th Cir. 2017). As indicated above, direct evidence is evidence
that, if believed, requires the conclusion that unlawful discrimination (or, here,
retaliation) was at least a motivating factor in the employer’s actions. McGee, 2017
WL 587856, at *2. Direct evidence is composed of only the most blatant remarks,
whose intent could mean nothing other than to discriminate (or retaliate) on the
basis of some impermissible factor. Publix, 481 F. Supp. 3d at 697. Direct evidence
does not require a factfinder to draw any inferences in order to conclude that the
challenged employment action was motivated at least in part by discrimination or
retaliation. Id. at 697-98. Importantly, the evidence must establish not only that the
plaintiff's employer was predisposed to discriminate (retaliate), but also that the
employer acted on that predisposition. Id. at 698.
Kostic v. United Parcel Serv., Inc., 532 F. Supp. 3d 513, 537–38 (M.D. Tenn. 2021). The Court
does not perceive that Plaintiffs have pointed to anything they claim to be direct evidence of
retaliation, and so it examines only whether Plaintiffs’ retaliation claims survive under an indirectevidence theory.
Defendant does not attack Plaintiff’s prima facie case by challenging her ability to raise a
genuine issue that she engaged in protected conduct (the first element),28 that Defendant was aware
of that protected activity (the second element), or that she suffered an adverse employment action
(the third element). Instead, Defendant challenges only Plaintiff’s ability to raise a genuine issue
28
Defendant does make the claim that “[a]lthough Plaintiff complained about pay disparity, there is no
evidence that her complaints specifically alleged that she was paid unfairly due to her sex.” (Doc. No. 26
at 13 n.3). But Defendant does not present this as a claim that her complaints (though concededly having
been made) did not amount to protected conduct because they did not actual refer to gender disparity or
gender-based discrimination; instead, Defendant appears to concede (for purposes of the Motion) that at
least the particular complaining that Defendant does acknowledge—namely, “Plaintiff complain[ing] about
Franklin Nouvet in July 2019” (Doc. No. 26 at 13)—constitutes “protected activity.”
as to the fourth element, i.e., a causal connection. Nevertheless, to evaluate Defendant’s challenge,
the Court must determine what protected activity and what adverse employer action(s) actually are
here at issue. That is because the required causal connection is a causal connection between
protected activity and an adverse employer action.
Plaintiff’s response to the Motion as a whole makes clear that she bases her claims of
retaliation on only one adverse action, namely Defendant’s termination of her employment; she
(appropriately) concedes that “other actions such as being criticized for mistakes and misconduct
and having her job threatened do not, in this particular case, constitute adverse actions.”29 (Doc.
No. 30 at 9). And Defendant (understandably enough) does not address any other potential adverse
actions, treating Plaintiff as relying exclusively on the single adverse action of termination.
As for protected conduct, however, Defendant and Plaintiff are at odds as to what it is upon
which Plaintiff is relying. They both proceed as if the protected conduct consists of (and only of)
Plaintiff’s complaints to personnel of Defendant.30 But they disagree as to the time period wherein
such complaints were made. Defendant’s whole argument as to a causal connection proceeds under
the assumption that Plaintiff’s protected conduct occurred at the latest in July 2019. It is based
completely on this assumption that Defendant argues that Plaintiff is unable to establish temporal
proximity between Plaintiff’s complaints and her December 2019 termination of employment—
29
Plaintiff states this in the section of her brief addressing discrimination in violation of Title VII, not the
section addressing Title VII retaliation. And the concept of “adverse action” in the context of retaliation is
broader than it is in the context of discrimination. But Plaintiff does not indicate that in the retaliation
context she asserts any adverse actions that she does not assert in the employment context.
30
Plaintiff and Defendant appear of like mind also as to whether Plaintiff is relying on Plaintiff’s 2017
filing of a complaint with the Equal Employment Opportunity Commission (EEOC). Defendant implies,
correctly, that such filing would constitute protected conduct but notes that Plaintiff has not claimed
retaliation based on that particular protected conduct. (Doc. No. 26 at 13). And Plaintiff’s response to the
Motion omits any reliance on it, confirming that it is indeed not protected conduct on which Plaintiff is
relying.
an inability that, according to Defendant, is fatal to Plaintiff’s prima facie case because (again
according to Defendant) Plaintiff cannot otherwise establish a causal connection.31 (Doc. No. 26
at 13-14).
But this argument simply does not work unless Defendant shows that no reasonable jury
could find that Plaintiff’s protected conduct occurred at the latest in July 2019 (or perhaps
somewhat later but still materially before December 2019). The burden falls on Defendant, as the
summary-judgment movant, to show this (preliminarily, subject to rebuttal by Plaintiff) in order
to support the particular argument it is making here. And Defendant has failed to do this. For
example, in its statement of undisputed material facts (Doc. No. 27), Defendant does not address
when it was that Plaintiff’s complaints ceased; still less does Defendant assert therein that this
occurred in July 2019 (or some somewhat later time still materially in advance of December 2019),
let alone support such an assertion.
Accordingly, whatever success Defendant conceivably could have had on this argument,
success eludes Defendant here because it simply has not supported (as required to meet its initial
burden) its particular argument by showing a lack of adequate temporal proximity—or indeed
showing what is the first date to be used in the temporal-proximity analysis. And as the temporalproximity argument is the only one Defendant presents as to Counts II and IV, summary judgment
will be denied to Defendant as to those Counts.
III.
Count III: Discrimination in Violation of Title VII
In her response to the Motion, Plaintiff writes the following with respect to Count III:
Plaintiff reiterates that Defendant engaged in unlawful employment actions when
it paid her less than Franklin Nouvet for performing the same or similar duties as
31
The Court is not convinced that Defendant has shown (as it must as part of its burden, extant due to the
particular argument it is making, of making an initial showing of a lack of a genuine dispute that causal
connection is lacking) that Plaintiff cannot establish causal connection except via temporal proximity, but
the Court herein will assume arguendo that this is the case.
Plaintiff. However, Plaintiff concedes that other actions such as being criticized for
mistakes and misconduct and having her job threatened do not, in this particular
case, constitute adverse actions. Plaintiff’s claims regarding pay disparity and
retaliation which resulted in her termination can be sufficiently addressed in her
claims for violations of the EPA for pay disparity and retaliation, and her Title VII
claim for retaliation.
(Doc. No. 30 at 9). Plaintiff thus has effectively (and responsibly)32 abandoned Count III, and so
summary judgment will be granted Defendant as to Count III.
CONCLUSION
As to Count I, Defendant has met its initial burden under Rule 56 to show preliminarily
that there is an absence of a genuine issue of material fact, and Plaintiff in response has failed to
show otherwise. As to Count III, Plaintiff has expressly abandoned the claim. So summary
judgment will be granted to Defendant on those two counts.
But as to Counts II and IV, Defendant has not met its initial burden under Rule 56 to show
preliminarily that there is an absence of a genuine issue of material fact. So summary judgment
will be denied Defendant on those two counts.
Accordingly, the Motion (Doc. No. 25) will be GRANTED IN PART AND DENIED IN
PART.
An appropriate corresponding order will be entered.
________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE
32
Plaintiff (and, naturally, also her counsel) are to be commended for being intentional about the counts on
which they do and do not see a need to persist; it is prudent for a party and her counsel to focus on what
they perceive to be their best and/or primary theories and to jettison other theories where appropriate. Where
a party makes that kind of strategic choice and makes that choice clear to the court, that is helpful to all
concerned (including that party itself).
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