Jividen v. University of Tennessee et al
Filing
42
ORDER GRANTING 32 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Signed by Judge Samuel H. Mays, Jr., on 07/11/2011. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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CARMEN R. JIVIDEN,
Plaintiff,
v.
UNIVERSITY OF TENNESSEE,
Defendant.
No. 07-2610
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Carmen R. Jividen (“Jividen”) alleges sex-based
discrimination,
hostile
work
environment,
and
retaliation
in
violation of Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e, et seq.
48, ECF No. 17.)
(See First Am. Compl. ¶¶ 38-
Before the Court is Defendant University of
Tennessee’s (the “University”) April 26, 2011 Motion for Summary
Judgment.
(Def.’s Mot. for Summ. J., ECF No. 32.)
responded in opposition on June 8, 2011.
Jividen
(Resp. to Mot. for
Summ. J., ECF No. 38; Pl.’s Mem. in Resp. to Mot. for Summ. J.,
ECF
No.
38-2
(“Resp.”).)
For
the
following
reasons,
the
University’s motion is GRANTED.
I.
Background1
1
Unless otherwise stated, all facts in the Background are undisputed for
purposes of the University’s Motion for Summary Judgment.
1
In
2001,
groundskeeper,
Jividen
where
began
her
working
duties
at
the
included
University
maintaining
as
a
trees,
flowers, and shrubs; weeding; trimming; and spraying chemicals.
(Def.’s
Statement
of
Undisputed
Material
Facts
¶
1
(“Def.’s
Statement”), ECF No. 32-1; Resp. to Def.’s Statement of Material
Facts ¶ 1 (“Pl.’s Statement”).)
University
employed
three
In addition to Jividen, the
male
groundskeepers.
Statement ¶ 2; Pl.’s Statement ¶ 2.)
(See
Def.’s
Whit Sutton (“Sutton”) was
Jividen’s supervisor during her employment at the University.2
(Def.’s
Statement
¶
3.)
During
her
employment
with
the
University, Jividen received marks of satisfactory and fair on
her
employment
evaluations.
(Def.’s
Statement
¶
4;
Pl.’s
Statement ¶ 4.)
Jividen’s
promotion
of
University
Service
claims
a
male
posted
Supervisor
an
are
based
co-worker
opening
in
in
instead
for
2006,
part
the
Jividen
2
on
the
of
her.
position
and
University’s
When
of
Barry
the
Building
Flanagan
Jividen denies this fact and states that Sutton was her “direct supervisor”
from 2001 to 2006 and in 2007, but that, from 2006 to 2007, Barry Flanagan
was her “direct supervisor.” (Pl.’s Statement ¶ 3.) Under the local rules
in this district, the party moving for summary judgment must include a
statement of undisputed material facts with citations to the record showing
those facts are not in dispute. See W.D. Tenn. Civ. R. 56.1(a). The party
opposing the motion must respond to each fact by agreeing that the fact is
undisputed or demonstrating that it is disputed “by specific citation to the
record.”
Id. 56.1(b).
Jividen does not cite to the record to show that
whether Sutton was her supervisor during her employment at the University is
disputed.
Therefore, that fact is deemed admitted.
See Akines v. Shelby
Cnty. Gov’t, 512 F. Supp. 2d 1138, 1147-48 (W.D. Tenn. 2007) (explaining
that, where the non-moving party fails to follow the local rule in responding
to a motion for summary judgment, courts in this judicial district “consider
the [moving party’s] statement of undisputed material facts as having been
admitted”).
2
(“Flanagan”) applied.
(Def.’s Statement ¶ 5; Pl.’s Statement ¶
5; see Sutton Dep. Ex. 3, ECF No. 32-5 (“Job Summary”).)
With
input and approval from the University’s Department of Human
Resources
(“Human
Resources”),
Sutton
was
responsible
for
deciding whether to promote Jividen or Flanagan to the position.
(See Def.’s Statement ¶ 6; Pl.’s Statement ¶ 6.)
Because
Sutton
considered
Jividen
and
Flanagan
to
have
different strengths and weakness, he wanted to give each a trial
period
as
supervisor
before
making
his
Resources would not approve that proposal.3
7.)
decision,
but
Human
(Def.’s Statement ¶
Having supervised both candidates, Sutton decided not to
conduct extensive interviews; he asked each candidate a single
question about how he or she might handle an emergency if Sutton
had to miss work for two weeks and considered their answers “a
wash.”4
(Def.’s Statement ¶ 8.)
Sutton decided to promote
Flanagan because his education, formal training, and supervisory
experience made him better “on paper.”5
3
(Def.’s Statement ¶ 9;
Jividen denies this fact and states that she “has no personal knowledge”
about Sutton’s proposal or Human Resources’ rejection of it, but she does not
cite to record evidence showing that the fact is in dispute. Therefore, it
is deemed admitted. See W.D. Tenn. Civ. R. 56.1; Akines, 512 F. Supp. 2d at
1147-48.
4
Jividen denies this fact and states that she was asked what she would do if
only one person or no one came to work on a particular day. (Pl.’s Statement
¶ 8.)
Although Jividen cites various sources in the record, none of them
addresses Sutton’s interview.
Therefore, that Sutton asked her a single
question about how she would handle an emergency in his absence is deemed
admitted. See W.D. Tenn. Civ. R. 56.1; Akines, 512 F. Supp. 2d at 1147-48.
5
Jividen denies this fact and states that she has “no personal knowledge”
about Flanagan’s qualifications on paper and that she “believes she was more
qualified and more knowledgeable about the standards and responsibilities
that the Grounds Supervisor position required than Mr. Flanagan,” but she
3
see also Sutton Dep. 33:15-34:4, 38:3-38:8, ECF No. 32-5.)
No
one told Jividen that Sutton selected Flanagan instead of her
because she was female.6
(See Def.’s Statement ¶ 10.)
Jividen’s claims are also based on her work environment.
In
2004
restroom
or
2005,
outside
Statement ¶ 11.)
Jividen
the
complained
about
groundskeepers’
having
building.
to
use
a
(Def.’s
Jividen denies that characterization of her
complaint and says that she complained “about having to use an[]
outside male restroom.”
(See Pl.’s Statement ¶ 11.)
She relies
on her deposition testimony where she states that, although the
restroom was not marked “male” or “female,” it had a urinal in
addition to a toilet.
At
the
time
(See Jividen Dep. 43:18-44:4.)
of
Jividen’s
complaint,
the
University’s
groundskeepers worked out of a building known as the “garage”
and an adjacent storage facility.
8, 2011, ECF No. 32-6.)
(Jividen Dep. 43:15-18, Mar.
The restroom inside the garage had a
toilet, mirror, and running water.
The restroom in the storage
area had a toilet, urinal, and running water.
(Id. 43:19-44:3.)
does not deny that Sutton stated that he promoted Flanagan because of his
education, formal training, and supervisory experience. (See Pl.’s Statement
¶ 9.)
6
Jividen denies his fact and states that she was “told by Mr. Jackson, a
supervisor at the University of Tennessee . . . that Mr. Sutton told Mr.
Jackson that he had concerns with [Jividen’s] ability to supervise men.”
(Pl.’s Statement ¶ 10.) Jividen does not cite to the record, and there is no
affidavit or deposition testimony from “Mr. Jackson” or affidavit or
deposition testimony about Mr. Jackson’s comments in the record. Therefore,
that no one told Jividen that Sutton’s selection was based on her sex is
deemed admitted.
See W.D. Tenn. Civ. R. 56.1; Akines, 512 F. Supp. 2d at
1147-48.
4
Sutton asked Jividen to use the restroom in the storage area and
said he would put flowers in the urinal if should would agree.
(See Def.’s Statement ¶ 12.)
Sutton’s
offer
to
put
The parties disagree about whether
flowers
in
the
urinal
was
a
joke.
(Compare Def.’s Statement ¶ 12, and Sutton Dep. 29:2-8, with
Pl.’s Statement ¶ 12, and Jividen Dep. 44:15-22.)
After Jividen filed a formal complaint about the restroom
arrangment,
the
groundkeepers
“physical plant.”
moved
to
a
new
(Jividen Dep. 47:18-48:13.)
building,
the
There, one of
the indoor male restrooms was designated a women’s restroom, and
Jividen received the only key.
Jividen
Dep.
restroom,
48:12-23.)
Jividen
was
(Def.’s Statement ¶ 11; see
After
“fine”
receiving
with
the
a
key
to
restrooms.7
her
own
(Def.’s
Statement ¶ 12; Jividen Dep. 50:1-4.)
Sometime in 2007, after Sutton noticed that Jividen’s legs
and feet were blue from spraying chemicals, he instructed the
groundskeepers to wear shoes and socks.8
15.)
Previously,
occasionally.
Jividen
and
Flanagan
(Def.’s Statement ¶
had
worn
sandals
Flanagan followed Sutton’s instruction to begin
7
Jividen denies the paragraph in which the University states this fact, but
her response demonstrates that she denies only whether Sutton was joking
about putting flowers in the urinal in her old restroom.
(See Pl.’s
Statement ¶ 12.) That Jividen was content with the restrooms in the physical
plant is deemed admitted. See W.D. Tenn. Civ. R. 56.1; Akines, 512 F. Supp.
2d at 1147-48.
8
Jividen states that she has no knowledge of why Sutton decided to make
employees wear shoes and socks, but does not cite evidence in the record
showing that this fact is disputed.
(See Pl.’s Statement ¶ 15.)
It is
deemed admitted.
See W.D. Tenn. Civ. R. 56.1; Akines, 512 F. Supp. 2d at
1147-48.
5
wearing shoes and socks.9
that
she
had
footwear.
been
(Def.’s Statement ¶ 16.)
advised
by
a
doctor
(Pl.’s Statement ¶ 15.)
to
Jividen says
wear
ventilated
Although the University’s
Grounds Work Rules did not address footwear, the pesticides and
herbicides that the groundskeepers applied on campus had warning
labels advising users to wear shoes and socks.
(See Def.’s
Statement ¶ 17; Pl.’s Statement ¶ 17; Grounds Work Rules, ECF
No. 38-10.)
On
July
19,
2007,
inappropriate footwear.
instructed
her
to
Sutton
noticed
Jividen
(Def.’s Statement ¶ 18.)
return
her
truck
to
the
wearing
When he
physical
plant
compound, Jividen went to the Office of Equity and Diversity.
(Id.)
Jividen denies that her footwear was inappropriate, as it
had been ordered by her doctor.
Dep. 74:17-75:5.)
(Pl.’s Statement ¶ 18; Jividen
Jividen also denies that Sutton instructed
her to go to the compound.
(Pl.’s Statement ¶ 18.)
She says
that, while she was working in the University playground area,
Sutton yelled at her about her footwear and directed her to go
home without telling her what to do with her truck.
(Id.; see
Jividen Dep. 73:11-74:12.)
9
Jividen denies the paragraph in which the University states these facts, but
she does not cite evidence in the record showing that they are in dispute.
(See Pl.’s Statement ¶ 16.)
That Jividen and Flanagan had worn sandals
before Sutton’s instruction to wear shoes and socks and that Flanagan
followed Sutton’s instruction are deemed admitted.
See W.D. Tenn. Civ. R.
56.1; Akines, 512 F. Supp. 2d at 1147-48.
6
After
waiting
for
Jividen
at
the
compound
for
several
minutes, Sutton went in search of Jividen’s truck and found it
outside the Office of Equity and Diversity’s building.
(Def.’s
Statement ¶ 19.)
The truck had been parked in a fire lane near
the
a
entrance
to
parking
garage.
Sutton returned it to the compound.10
(Sutton
Dep.
46:15-22.)
(Def.’s Statement ¶ 19.)
On July 23, 2007, Sutton issued Jividen a letter of final
warning
about
her
refusing
to
wear
shoes
and
socks
and
her
failing to return her truck to the compound on July 19, 2007.
(Def.’s Statement ¶ 20; Ex. 12, ECF No. 32-6.)
Jividen does not
deny that she received that letter, but disputes the bases for
its issuance.
(See Pl.’s Statement ¶ 20.)
She explains that
she was not insubordinate in refusing to wear shoes and socks
because she was following her doctor’s orders and that she was
not disciplined for “the truck incident.”
On
September
14,
2007,
Sutton
(Id.)
informed
Jividen
that,
because she would be applying pesticides in the coming days, she
needed to wear shoes and socks.11
(Def.’s Statement ¶ 21.)
Jividen wore inappropriate footwear on September 12, 14, 19, and
10
Jividen denies these facts and states that Sutton followed her to the
building and “took her work truck in a malicious manner to again hinder her
ability to follow [his] instructions to her to go home.” (Pl.’s Statement ¶
19.)
Although Jividen characterizes the event differently, the record
evidence does not show that Sutton’s waiting for Jividen at the compound,
searching for and locating her truck, and returning it to the compound are in
dispute. (See id.)
11
Jividen denies this fact, but does not cite any record evidence showing
that it is in dispute. (See Pl.’s Statement ¶ 21.) Therefore, it is deemed
admitted. See W.D. Tenn. Civ. R. 56.1; Akines, 512 F. Supp. 2d at 1147-48.
7
27.12
(Def.’s Statement ¶ 21.)
On October 4, 2007, she was
issued a letter stating that the University had termintated her
employment for insubordination.
(“Termination Letter”).)
(Id.; see Ex. 21, ECF No. 32-6
Jividen disputes that she had been
insubordinate, but not that the University’s October 4, 2007
letter stated insubordination as the reason for her dismissal.
(See Pl.’s Statement ¶ 21.)
II.
Jurisdiction
Because Jividen’s claims arise under Title VII, this Court
has
federal
question
jurisdiction.
See
28
U.S.C.
§§
1331,
1343(a)(4); Harper v. AutoAlliance Int’l, 392 F.3d 195, 201 (6th
Cir. 2004) (stating that Title VII claims arise under federal
law).
III. Standard of Review
Under Federal Rule of Civil Procedure 56, on motion of a
party, the court “shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
The party moving for summary judgment
“bears the burden of clearly and convincingly establishing the
nonexistence of any genuine [dispute] of material fact, and the
evidence as well as all inferences drawn therefrom must be read
12
Jividen denies that she wore inappropriate footwear in September 2007, but
she does not cite record evidence showing that there is a dispute about that
fact.
Therefore, it is deemed admitted.
See W.D. Tenn. Civ. R. 56.1;
Akines, 512 F. Supp. 2d at 1147-48.
8
in a light most favorable to the party opposing the motion.”
Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.
1986); see Fed. R. Civ. P. 56(a).
The moving party can meet
this burden by pointing out to the court that the respondent,
having had sufficient opportunity for discovery, has no evidence
to support an essential element of her case.
See Fed. R. Civ.
P. 56(c)(2); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479
(6th Cir. 1989).
When
confronted
with
a
properly
supported
motion
for
summary judgment, the respondent must set forth specific facts
showing that there is a genuine dispute for trial.
Civ.
P.
56(c).
A
genuine
dispute
for
trial
See Fed. R.
exists
if
the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.
See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
The nonmoving party must “do more
than simply show that there is some metaphysical doubt as to the
material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
supported
summary
pleadings.
(1986).
judgment
One may not oppose a properly
motion
by
mere
reliance
on
the
See Celotex Corp. v. Catrett, 477 U.S. 317, 324
Instead, the nonmovant must present “concrete evidence
supporting
[her]
claims.”
Cloverdale
Equip.
Co.
v.
Simon
Aerials, Inc., 869 F.2d 934, 937 (6th Cir. 1989) (citations
omitted); see Fed. R. Civ. P. 56(c)(1).
9
The district court does
not have the duty to search the record for such evidence.
See
Fed. R. Civ. P. 56(c)(3); InterRoyal Corp. v. Sponseller, 889
F.2d 108, 111 (6th Cir. 1989).
point
out
specific
evidence
The nonmovant has the duty to
in
the
record
that
sufficient to justify a jury decision in her favor.
would
be
See Fed. R.
Civ. P. 56(c)(1); InterRoyal Corp., 889 F.2d at 111. “Summary
judgment is an integral part of the Federal Rules as a whole,
which are designed to secure the just, speedy, and inexpensive
determination
of
every
procedural shortcut.”
action[,]
rather
than
a
disfavored
FDIC v. Jeff Miller Stables, 573 F.3d
289, 294 (6th Cir. 2009) (internal quotation marks and citations
omitted).
IV.
Analysis
Title
“any
VII
forbids
individual
conditions,
or
with
employers
respect
privileges
from
to
discriminating
against
compensation,
employment,
of
[her]
because
of
terms,
such
individual's race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1).
Jividen alleges that the University
violated Title VII by failing to promote her and terminating her
on the basis of sex, retaliating against her for complaining
about
her
work
conditions,
and
creating
environment based on sexual harassment.
48.)
A. Sex-based Discrimination
10
a
hostile
work
(See Am. Compl. ¶¶ 38-
A plaintiff may use direct or circumstantial evidence to
establish a prima face case of sex-based discrimination.
See
Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 390 (6th Cir.
2009)
(citation
evidence,
the
omitted).
Where
burden-shifting
a
plaintiff
framework
of
lacks
McDonnell
direct
Douglas
Corporation v. Green, 441 U.S. 792 (1973), as modified by Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981)
applies.
See Risch, 581 F.3d at 390; cf. Upshaw v. Ford Motor
Co., 576 F.3d 576, 584 (6th Cir. 2009) (citations omitted).
establish
a
prima
facie
case
of
sex-based
To
discrimination,
a
plaintiff must show (1) she is a member of a protected class,
(2)
she
suffered
an
adverse
employment
action,
(3)
she
was
qualified, and (4) she was treated differently than similarly
situated male employees.
See McClain v. Northwest Cmty. Corr.
Ctr. Judicial Corr. Bd., 440 F.3d 320, 332 (6th Cir. 2006).
If
the plaintiff establishes a prima facie case, the burden shifts
to
the
employer,
who
must
articulate
nondiscriminatory reason for its action.
390; McClain, 440 F.3d at 332.
burden,
the
employee
must
a
legitimate,
See Risch, 581 F.3d at
If the employer carries its
proffer
evidence
from
which
a
reasonable jury could conclude that the employer’s stated reason
is pretextual.
See Risch, 581 F.3d at 391; McClain, 440 F.3d at
332.
11
Jividen bases her claim for sex-based discrimination on the
University’s decision to promote Flanagan to Building Service
Supervisor instead of her and its decision to terminate her
employment.
(See Resp. 5-8.)
Because there is no dispute that
Jividen lacks direct evidence that the University took those
actions on the basis of her sex, she must rely on circumstantial
evidence.
For
purposes
of
summary
judgment,
the
University
admits
that Jividen can establish a prima facie case of discrimination
based on its failure to promote her.
of
Def.’s
Therefore,
Mot.
it
for
has
Summ.
the
J.
burden
(See Mem. of Law in Supp.
2-3,
of
ECF
McClain,
440
F.3d
at
332.
32-2.)
articulating
nondiscriminatory reason for its action.
390;
No.
To
a
(“Mem.”)
legitimate,
See Risch, 581 F.3d at
meet
that
burden,
the
University states that it promoted Flanagan instead of Jividen
because Sutton, the decision-maker, considered him to be the
better-qualified candidate.
(Mem. 3.)
The University’s stated reason has support in the record.
The job description provided, in part:
The Building Service Supervisor will supervise the
maintenance of the University grounds and properties.
REQUIREMENTS: Associates Degree with an emphasis on or
Horticulture Science preferred; four (4) years grounds
maintenance/gardening with experience to include (2)
years supervisory OR a combination of education and
related work experience to equal eight (8) years.
12
(See Job Summary.)
scheduled
2006.
to
Flanagan held a bachelor’s degree and was
complete
a
“master
gardener”
(See Ex. 5, ECF No. 32-5.)
program
in
August
(“Flanagan Application”)
Before joining the grounds staff in 2001, he had also supervised
researchers
in
other
positions
at
the
University.
(Id.)
Jividen had significant gardening and landscaping experience and
had supervised others in the Tennessee National Guard, but she
had less education, formal training, and supervisory experience.
(See Ex. 8, ECF No. 32-5.)
ultimately
training,
chose
and
Flanagan
supervisory
qualified on paper.”
That
is
a
(“Jividen Application”)
because
experience
his
made
Sutton
education,
him
formal
“much
better
(See Sutton Dep. 33:15-34:4, 37:21-39:16.)
legitimate,
nondiscriminatory
reason
for
the
University’s promoting Flanagan.
Because
the
University
has
articulated
a
legitimate,
nondiscriminatory reason for promoting Flanagan, Jividen must
show that its reason is pretextual.
See Risch, 581 F.3d at 391;
McClain, 440 F.3d at 332.
“A plaintiff may establish that an
employer’s
for
stated
reason
its
employment
action
was
pretextual by showing that the reason (1) had no basis in fact,
(2) did not actually motivate the challenged conduct, or (3) is
insufficient to explain the challenged conduct.”
F.3d at 586 (citation omitted).
Upshaw, 576
To survive summary judgment, a
plaintiff need only rebut the employer’s proffered reason; she
13
need not disprove it.
Id.; see also Ross v. Pfizer, Inc., 375
F. App’x 450, 454 (6th Cir. 2010) (citation omitted).
Jividen contends that Sutton’s conducting a one-question
interview of both candidates and the University’s criticizing
that
form
of
interview
show
that
the
University’s
proffered
(See Resp. 6.)
reason did not actually motivate its decision.
The record demonstrates that University investigated Sutton’s
selection process and expressed concerns about the interview.
(See Ex. 14, ECF No. 38-14; Ex. 15, ECF No. 38-15 (“Report”).)
However,
Sutton
testified
responses
to
interview
his
that
Jividen’s
question
neither was “extremely great.”
were
and
“a
Flanagan’s
wash”
and
(Sutton Dep. 37:14-20.)
that
Sutton
also testified that he ultimately chose Flanagan because of his
education, formal training, and supervisory experience.
37:21-39:16.)
better
(Id. at
Because those characteristics made Flanagan “much
qualified
on
paper,”
the
interview
materially affect Sutton’s decision.
process
(See id.)
did
not
That Sutton’s
interview process might have been flawed by the University’s
human
resources
standards
does
not
show
that
Flanagan’s
education, formal training, and supervisory experience were not
the reasons for his promotion.
Although she does not explain whether they show that the
University’s
proferred
reason
“did
not
actually
challenged conduct” or that it “is insufficient,”
14
motivate
the
Upshaw, 576
F.3d at 586 (citation omitted), Jividen directs the Court to
other facts that she contends show the reason is a pretext for
discrimination.
(See Resp. 6-7.)
She emphasizes that Flanagan
had been employed the University’s psychology department as a
research assistant before joining the grounds team and that she
had
more
Flanagan.13
experience
(See id.)
as
a
University
groundskeeper
than
She also asserts that she was denied the
promotion after she had complained about “unfair treatment and
harassment, particularly regarding Sutton.”
(Id. at 7.)
Where a plaintiff seeks to compare her qualifications to
the candidate chosen for a position,
relative qualifications may establish a triable issue
of fact as to pretext if the evidence shows that
either (1) the plaintiff’s qualifications “were so
significantly better than the successful applicant’s
qualifications that no reasonable employer would have
chosen the latter applicant over the former,” or (2)
the plaintiff was “as qualified as or better qualified
than the successful applicant” and the record also
contains “other probative evidence of discrimination.”
Ross, 375 F. App’x at 454 (citation omitted); see Risch, 581
F.3d at 392 (“When the plaintiff offers other probative evidence
of discrimination, that evidence, taken together with evidence
that the plaintiff was as qualified as or better qualified than
the successful applicant, might well result in the plaintiff's
13
Jividen actually asserts that Flanagan was not employed in a horticulturerelated position before he was promoted to Building Service Supervisor. (See
Resp. 6.) However, the only evidence in the record about Flanagan’s
employment history shows that he had been employed in the grounds department
since 2001. (See Sutton Dep. 33:1-16; Flanagan Application.)
15
claim
surviving
summary
judgment.”
(citation
and
internal
quotation marks omitted).)
Jividen
has
significantly
not
shown
better
that
than
her
the
qualifications
successful
“were
so
applicant’s
qualifications that no reasonable employer” would have chosen
Flanagan instead of her.
See Ross, 375 F. App’x at 454.
She
had worked in landscaping for a variety of entities and had run
her own business, but she had not completed college, had little
formal training, and her only supervisory experience was as a
member
of
the
Tennessee
Jividen Application.)
National
Guard
in
the
1980s.
(See
By contrast, Flanagan had less experience
in landscaping and horticulture, but he had a college degree,
was enrolled in a master gardener program, and had supervised
employees
Flanagan
in
a
previous
Application.)
position
Sutton
at
the
recognized
University.
that
Jividen
(See
and
Flanagan had different strengths and weaknesses when he proposed
giving each a trial run as Building Service Supervisor—an idea
Human Resources vetoed.
(See Def.’s Statement ¶ 7.)
Although
Jividen has shown that her qualifications were different from
Flanagan’s, she has not shown that she was “so significantly
better”
qualified
chosen” him.
“that
no
reasonable
employer
would
have
See Ross, 375 F. App’x at 454.
Jividen has not shown that she was “as qualified or better
qualified than” Flanagan.
See Ross, 375 F. App’x at 454.
16
Title
VII
does
not
prerogatives
“not
in
diminish
choosing
lawful
among
traditional
qualified
management
candidates,
and
an
employer has great [ ] flexibility in choosing a managementlevel employee.”
Browning v. Dep’t of Army, 436 F.3d 692, 696
(6th Cir. 2006) (citation and internal quotation marks omitted);
see Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987) (“So long
as its reasons are not discriminatory, an employer is free to
choose among qualified candidates[.]” (citations omitted)).
employer’s
another
decision
“is
to
simply
weigh
not
one
factor
sufficient
to
more
heavily
demonstrate
An
than
pretext.”
Browning, 436 F.3d at 697.
In considering candidates for Building Service Supervisor,
the University, acting through Sutton, decided that education,
formal
training,
criteria,
education,
and
Jividen.
and
there
supervisory
formal
is
training,
wrong
Supervisor,
dispute
and
that
were
Flanagan
supervisory
important
had
more
experience
than
(See Sutton Dep. 37:21-39:16; Flanagan Application;
Jividen Application.)
the
no
experience
ones
Title
Although those criteria might have been
to
use
VII
in
“does
selecting
not
require
a
Building
employers
Service
to
make
perfect decisions, nor forbid them from making decisions that
others may disagree with.”
F.3d
612,
626
(6th
Cir.
Bender v. Hecht’s Dep’t Stores, 455
2006)
(citation
omitted).
Because
Jividen cannot show that she was as qualified as Flangan based
17
on the University’s criteria, her qualifications evidence does
not show that the University’s decision to promote Flanagan was
pretextual.
392.
See Ross, 375 F. App’x at 454; Risch, 581 F.3d at
To the extent she relies on the University’s promotion of
Flanagan,
Jividen’s
claim
of
sex-based
discrimination
cannot
survive summary judgment.
Addressing Jividen’s alternative theory that the University
discriminated against her on the basis of sex in deciding to
terminate her, the University also concedes, for purposes of
summary judgment, that Jividen can establish a prima facie case
(See Mem. 5-6.)
of sex-based discrimination.
the
burden
of
articulating
reason for its action.
F.3d at 332.
a
legitimate,
Therefore, it has
nondiscriminatory
See Risch, 581 F.3d at 390; McClain, 440
To meet that burden, the University states that it
terminated Jividen’s employment for insubordination.
(Mem. 3.)
The University’s reason has support in the record.
After
Sutton instructed Jividen and the other groundskeepers to wear
shoes and socks, Jividen continued to wear sandals and other
inappropriate footwear.
44:13-24.)
On
July
(See Def.’s Statement ¶ 18; Sutton Dep.
19,
2007,
when
Sutton
noticed
Jividen
wearing sandals, he directed her to meet him at the compound
with her truck.
24.)
(See Def.’s Statement ¶ 18; Sutton Dep. 44:13-
Although Jividen states that Sutton directed her to go
home and gave her no instructions about her truck, there is no
18
dispute that she did not follow Sutton’s directive and instead
went to the building housing the Office of Equity and Diversity,
where she left her unlocked truck parked in a fire lane, with
unsecured
University
equipment
inside
and
outside
(Pl.’s Statement ¶ 19; Sutton Dep. 46:1-48:16.)
repeatedly
wore
terminated
her
sandals
in
September
employment.
2007,
Def.’s
(See
the
truck.
After Jividen
the
University
Statement
¶
21.)
Because evidence shows that Jividen continued to wear sandals
after repeated directives to wear shoes and socks and ignored
Sutton’s directive on July 19, 2007, the record supports the
University’s
proffered
reason
that
it
terminated
her
for
insubordination.
Because
the
nondiscriminatory
University
has
reason
terminating
for
articulated
a
her,
legitimate,
Jividen
must
demonstrate that its reason is a pretext by showing that it has
no basis in fact, did not actually motivate the University’s
decision, or is insufficient to explain her termination.
Upshaw, 576 F.3d at 586 (citation omitted).
See
Jividen does not
explain on which of those theories she relies, but she directs
the
Court
to
various
facts
that
she
contends
show
the
University’s proffered reason for her termination is pretextual.
(See Resp. 7-8.)
She states that she had a medical reason for
wearing
that
sandals,
there
is
19
no
description
of
required
footwear
in
the
Grounds
Work
Rules,
groundskeepers wore inappropriate footwear.
None
of
those
facts
demonstrates
and
that
other
(See id.)
that
the
University’s
reason for terminating Jividen has no basis in fact, did not
actually motivate its decision, or is insufficient to support
its decision.
See Upshaw, 576 F.3d at 586 (citation omitted).
To the extent that Jividen implies she was not insubordinate in
continuing to wear sandals because she had a medical excuse for
not wearing shoes and socks, nothing in the record demonstrates
that she discussed her medical condition with Sutton.
she
had,
that
would
not
excuse
her
from
Even if
following
Sutton’s
directive, which was based on manufacturers’ warning labels on
the
chemicals
applying.
that
Jividen
and
other
groundskeepers
were
(See Def.’s Statement ¶ 17; Pl.’s Statement ¶ 17.)
That Jividen had a medical reason for wearing sandals does not
show that the University’s proffered reason for terminating her
is pretextual.
That
the
University’s
written
policies
did
not
address
footwear for groundskeepers does not show that the University’s
proferred
reason
According
to
the
behaviors
include
for
terminating
University’s
.
.
.
Jividen
Code
refusal
of
of
an
is
Conduct,
employee
pretextual.
“Prohibited
to
follow
instructions . . . or to comply with directives of authorized
university officials.”
(Ex. 10, ECF No. 38-10.)
20
There is no
dispute that Sutton directed the groundskeepers to wear shoes
and socks and that Jividen repeatedly failed to do so.
That
Sutton’s directive was not itself in the Code of Conduct is not
material.
To
the
extent
Jividen
asserts
that
other
groundskeepers
were not terminated for wearing similar footwear, she does not
name those groundskeepers or cite any record evidence supporting
her assertion.
is
that
(See Resp. 8.)
Flanagan
wore
The only evidence in the record
sandals
before
groundskeepers to wear shoes and socks.
Sutton
directed
the
(See Def.’s Statement ¶
16.)
Nothing in the record demonstrates that Flanagan or any
other
groundskeeper
directive.
continued
to
wear
sandals
after
Sutton’s
Jividen’s assertion to the contrary lacks record
support.
The
University
has
articulated
legitimate,
nondiscriminatory reasons for its decisions to promote Flanagan
and to terminate Jividen.
Jividen has not shown that those
reasons are pretext for sex-based discrimination.
the
University
is
entitled
to
summary
judgment
Therefore,
on
Jividen’s
claim of sex-based discrimination.
B. Retaliation
Title VII bars employers from retaliating against employees
for engaging in protected activities.
3(a).
See 42 U.S.C. § 2000e-
Where a plaintiff relies on circumstantial evidence to
21
show
retaliation,
framework
the
applies.
omitted).
McDonnell
See
Upshaw,
Douglas
576
F.3d
burden-shifting
at
588
(citations
To establish a prima face claim for retaliation, a
plaintiff must show that:
(1) she engaged in activity protected by Title VII;
(2) this exercise of protected rights was known to
defendant; (3) defendant thereafter took adverse
employment action against the plaintiff, or the
plaintiff was subjected to severe or pervasive
retaliatory harassment by a supervisor; and (4) there
was a causal connection between the protected activity
and the adverse employment action or harassment.
Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595 (6th
Cir. 2007) (citing Morris v. Oldham County Fiscal Court, 201
F.3d 784, 792 (6th Cir. 2000)).
Jividen
decisions
to
bases
her
promote
retaliation
Flanagan
to
claim
on
Building
the
Service
instead of her and to terminate her employment.
8.)
Because
there
is
no
dispute
that
University’s
Jividen
Supervisor
(See Resp. 5lacks
direct
evidence that the University took those actions in retaliation
for her engaging in Title VII-protected activity, she must rely
on
circumstantial
evidence.
As
on
Jividen’s
discrimination
claim, for purposes of summary judgment, the University admits
that Jividen can establish a prima facie case of retaliation
based on its failure to promote her and its termination of her
employment.
(See Mem. 2-3, 5.)
Therefore, the University has
the burden to show legitimate, nonretaliatory reasons for its
22
actions.
See Harris v. Metro. Gov’t of Nashville & Davidson
Cnty., 594 F.3d 476, 485 (6th Cir. 2010) (citation omitted).
As
noted,
the
University
has
articulated
a
legitimate,
nondiscriminatory reason for promoting Flanagan—that he had more
education,
formal
Jividen.
The
training,
University
and
has
supervisory
also
experience
articulated
a
than
legitimate,
nondiscriminatory reason for terminating Jividen—that she was
insubordinate.
Jividen
has
Because those reasons are also non-retaliatory,
the
burden
of
showing
that
the
University’s
proffered reasons are a pretext for retaliation.
See Harris,
594 F.3d at 485.
Jividen’s argument that the University’s proffered reason
for
promoting
Flanagan
instead
of
her
is
a
pretext
for
retaliation is identical to her argument that the reason is a
pretext for discrimination.
(See Resp. 5-7.)
Just as that
argument does not show that the University’s stated reason was a
pretext
for
discrimination,
it
does
pretext
for
retaliation.
To
the
not
show
extent
that
Jividen
it
was
bases
a
her
retaliation claim on the University’s failure to promote her, it
fails.
Much of Jividen’s argument that the University’s proferred
reason for terminating her is a pretext for retaliation overlaps
with her argument that the University’s reason is a pretext for
sex-based discrimination.
(See Resp. 7-8.)
23
However, Jividen
also asserts that her termination “was issued after she lodged
complaints against management within her department” and “very
soon” after she filed a charge against the University with the
Equal Employment Opportunity Commission (“EEOC”).
(Id. at 8.)
Evidence of temporal proximity between an employee’s Title
VII-protected
considered
activity
evidence
of
and
a
her
causal
termination
connection
is
for
establishing a prima facie case of retaliation.
generally
the
purpose
See Eades v.
Brookdale Senior Living, Inc., 401 F. App’x 8, 13 (6th Cir.
2010).
A
plaintiff
may
rely
on
“temporal
proximity
in
the
pretext analysis as indirect evidence to support a pretext claim
and rebut [a] proffered non-discriminatory reason for an adverse
employment action.”
Id.; Asmo v. Keane, Inc., 471 F.3d 588,
598 (6th Cir. 2006) (citations omitted).
proximity alone cannot prove pretext.
That said, temporal
See Brown v. City of
Franklin, No. 10-5107, 2011 WL 2558768, at *4 (6th Cir. June 28,
2011); Burks v. Yellow Transp, 258 F. App’x 867, 875 (6th Cir.
2008) (citations omitted).
The Court of Appeals for the Sixth
Circuit has held, in a case involving only six weeks between an
employee’s protected activity and an employer’s adverse actions,
that “temporal proximity is insufficient in and of itself to
establish
that
the
employer’s
nondiscriminatory
discharging an employee was in fact pretextual.”
reason
for
Skrjanc v.
Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th Cir. 2001).
24
Other than temporal proximity, Jividen does not direct the
Court
to
proferred
any
record
reason
retaliation.
evidence
for
her
showing
that
termination
the
was
a
University’s
pretext
for
She does not state which complaints she relies on
to support her temporal proximity argument.
(See Resp. at 8.)
Jividen complained about her assigned restroom in 2004 or 2005.
(Def.’s Statement ¶ 11.)
December 2006.
She filed a charge with the EEOC in
(See Ex. 13, ECF No. 38-13.)
On July 19, 2007,
the same day Sutton reprimanded her for wearing inappropriate
footwear, Jividen went to the Office of Equity and Diversity,
where
she
presumably
lodged
“stalking” her on campus.
a
complaint
about
Flanagan’s
(See Def.’s Statement ¶ 18; Pl.’s
Statement ¶ 18; Jividen Dep. 74:17-75:5; Ex. 6, ECF No. 38-6.)
Assuming that Jividen bases her argument on her July 19,
2007 complaint, approximately ten weeks elapsed between her most
recent protected conduct and her termination on October 4, 2007.
(Compare id., with Termination Letter.)
more
than
insufficient
the
to
six
show
weeks
pretext
Skrjanc, 272 F.3d at 317.
the
University’s
the
proferred
Sixth
based
That is significantly
Circuit
on
concluded
temporal
proximity
was
in
Therefore, Jividen’s argument that
reason
for
her
termination
is
pretextual because the termination occurred in close proximity
to Title VII-protected conduct is not well-taken.
25
The University has articulated legitimate, nonretaliatory
rreasons
Jividen
for
has
reltation.
promoting
not
shown
Flanagan
that
those
and
terminating
reasons
are
Jividen.
pretext
for
Therefore, the University is entitled to summary
judgment on Jividen’s retaliation claim.
C. Hostile Work Environment
Title VII provides employees protection from a workplace
“permeated
with
discriminatory
intimidation,
ridicule,
and
insult that is sufficiently severe or pervasive to alter the
conditions
of
the
victim’s
working environment.”
employment
and
create
an
abusive
Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) (citation omitted).
To establish a prima facie
case of hostile work environment based on sex, a plaintiff must
show:
(1) that she was a member of a protected class; (2)
that she was subjected to unwelcome sexual harassment;
(3) that the harassment was based on sex; (4) that the
harassment unreasonably interfered with her work
performance by creating a hostile, offensive, or
intimidating work environment; and (5) that there is a
basis for employer liability.
Thornton v. Fed. Express Corp., 530 F.3d 451, 455 (6th Cir.
2008); see
also
Grace v. USCAR, 521 F.3d 655, 678 (6th Cir.
2008) (citations omitted).
In support of her hostile work environment claim, Jividen
emphasizes that she was the only female in her department, that
she was not provided a proper restroom facility until she lodged
26
a complaint against the University, that Sutton told her that he
would
put
appease
flowers
her,
in
and
the
that
urinal
Sutton
of
her
yelled
current
at
her
restroom
for
to
wearing
inappropriate footwear and moved her truck on July 19, 2007.
(See
Resp. 9.)
Although none of those allegations involves
conduct that is explicitly sexual, “the law recognizes that nonsexual conduct may be illegally sex-based where it evinces antifemale animus, and therefore could be found to have contributed
significantly to the hostile environment.”
Williams v. GMC, 187
F.3d 553, 565 (6th Cir. 1999) (citations omitted).
To establish
the third element of a hostile work environment claim, however,
the Sixth Circuit “has specifically held that . . . if the
conduct in question is ‘non-sexual,’ the plaintiff must show
that but for [her] sex, [s]he would not have been the object of
harassment.”
Simpson v. Vanderbilt Univ., 359 F. App’x 562, 572
(6th Cir. 2009) (citing Bowman v. Shawnee State Univ., 220 F.3d
456,
463
(6th
Cir.
2000));
see
also
Pusey
v.
United
Parcel
Service, Inc., 393 F. App’x 366, 369 (6th Cir. 2010) (citation
omitted).
Even assuming that Jividen alleges sexual conduct and that
the third element of her claim has been met, she has failed to
show that the harassment she suffered created a hostile work
environment.
sexual
To prove the fourth element, a plaintiff claiming
harassment
must
establish
27
that
the
workplace
was
“permeated
with
discriminatory
intimidation,
ridicule,
and
insult that is sufficiently severe or pervasive to alter the
conditions
of
the
victim’s
working environment.”
employment
and
create
an
abusive
Harris, 510 U.S. at 21; see Thornton, 530
F.3d at 455 (citation omitted).
In deciding whether alleged
harassment is sufficiently severe or pervasive to be actionable,
a court considers the totality of the circumstances.
Williams,
187 F.3d at 562(citation omitted); see also Hensman v. City of
Riverview, 316 F. App’x 412, 416-17 (6th Cir. 2009).
Factors to
consider include “the frequency of the discriminatory conduct;
its
severity;
humiliating,
whether
or
unreasonably
a
it
mere
is
physically
offensive
interferes
with
an
threatening
and
utterance;
or
it
employee’s
whether
performance.”
Thornton, 530 F.3d at 455 (citing Jackson v. Quanex Corp., 191
F.3d 647, 658 (6th Cir. 1999)); see also Cecil v. Louisville
Water
Co.,
omitted).
301
F.
App’x
490,
499
(6th
Cir.
2008)
(citation
“The conduct in question must be judged by both an
objective and a subjective standard: the conduct must be severe
or pervasive enough to create an environment that a reasonable
person
would
find
hostile
or
abusive,
and
the
subjectively regard that environment as abusive.”
victim
must
Thornton, 530
F.3d at 455 (citation omitted); see Harris, 510 U.S. at 21-22.
Jividen
does
not
allege
that
incidents of alleged harassment.
28
she
experienced
frequent
See Thornton, 530 F.3d at 455.
Although she was employed at the University from 2001 through
2007, Jividen describes a handful of allegedly discriminatory
incidents: her having to use an inappropriate restroom until she
filed a complaint, Sutton’s comment about putting flowers in a
urinal, and Sutton’s actions toward her on July 19, 2007.
Three
incidents of harassing conduct over six years do not constitute
severe
or
pervasive
conduct.
Bowman,
See
220
F.3d
at
464
(concluding that five incidents of harassing conduct occurring
over five-year period did not constitute severe or pervasive
conduct).
Jividen
did
discriminatory
humiliating.
not
testify
incidents
that
were
any
of
physically
See Thornton, 530 F.3d at 455.
the
allegedly
threatening
or
After receiving a
key to her own restroom, Jividen was “fine” with the restroom
(See Def.’s Statement ¶ 12; Jividen Dep. 50:1-4.)
situation.
Although Sutton yelled at Jividen about her improper footwear on
July
19,
2007,
nothing
suggests
that
she
felt
physically
threatened. (See Jividen Dep. 73:11-73:21.)
Nothing in the record suggests that any of the allegedly
discriminatory incidents affected Jividen’s performance.
See
Thornton,
she
530
F.3d
at
455.
Throughout
her
employment,
received employment evaluations that were satisfactory and fair.
(Def.’s Statement ¶ 4; Pl.’s Statement ¶ 4.)
29
Viewed
as
objectively
a
whole,
hostile
or
Jividen’s
abusive.
work
environment
Thornton,
530
F.3d
(citation omitted); see Harris, 510 U.S. at 21-22.
incidents
like
those
alleged
by
Jividen
are
was
not
not
at
455
Isolated
conduct
sufficient “to amount to a change in the terms and conditions of
employment.”
Faragher v. City of Boca Raton, 524 U.S. 775, 787
(1998).
Because
civility,”
the
establish
the
environment.
Title
incidents
fourth
VII
is
Jividen
element
of
not
a
alleges
her
“code
are
claim
of
workplace
insufficient
for
hostile
to
work
See id.; Thornton, 530 F.3d at 455.
Jividen has not established a prima facie claim for hostile
work
environment.
Therefore,
the
University
is
entitled
to
summary judgment on that claim.
V.
For
Conclusion
the
foregoing
reasons,
the
Court
GRANTS
the
University’s motion for summary judgment on Jividen’s claims.
So ordered this 11th day of July, 2011.
s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR
UNITED STATES DISTRICT JUDGE
30
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