Williams v. E.I. Dupont de Nemours and Co, Inc.
Filing
99
ORDER DENYING DEFENDANT'S MOTION 61 TO EXCLUDE WITHOUT PREJUDICE ; DENYING PLANITIFF'S MOTION 65 FOR SUMMARY JUDGMENT; AND GRANTING DEFENDANT'S MOTION 66 FOR SUMMARY JUDGMENT. Signed by Judge S. Thomas Anderson on 9/28/2016. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
MELISSA G. WILLIAMS,
Plaintiff,
v.
E. I. DU PONT DE NEMOURS AND
COMPANY, INC.
Defendant.
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Case No. 2:15-cv-02111-STA-dkv
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
ORDER GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT
ORDER DENYING DEFENDANT’S MOTION TO EXCLUDE WITHOUT PREJUDICE
Before the Court is Plaintiff Melissa G. Williams’s Motion for Summary Judgment (ECF
No. 65) and Defendant E. I. du Pont de Nemours and Co., Inc.’s Cross-Motion for Summary
Judgment (ECF No. 66), both filed on February 19, 2016. Each side has responded in opposition
to the opposing party’s Motion, and the moving parties have filed reply briefs. For the reasons
set forth below, Plaintiff’s Motion is DENIED, and Defendant’s Motion is GRANTED.
BACKGROUND
On February 16, 2015, Plaintiff filed a Complaint alleging claims of discrimination and
retaliation in violation of Title VII of the Civil Rights Act of 1964. Both parties now seek
judgment as a matter of law on all of Plaintiff’s claims for relief. A jury trial was set in this case
for May 23, 2016. However, Plaintiff sought a continuance of the trial date due to the fact that
Defendant terminated her employment earlier this year.
Plaintiff has filed a charge of
discrimination with the EEOC and is awaiting a right-to-sue letter to add claims to her judicial
complaint based on her termination. Defendant did not oppose the continuance and agreed that
an amendment of Plaintiff’s pleadings would serve the interests of judicial economy. Defendant
did request that the Court proceed to consider the parties’ Rule 56 Motions while Plaintiff
exhausts her administrative remedies.
The Court finds then that the parties’ Motions for
Summary Judgment are now ripe for determination.
As an initial matter, Plaintiff’s Motion for Summary Judgment is not well-taken.
Plaintiff’s Motion for Summary Judgment consists of the following: a statement of undisputed
material facts, a short recitation of the factual history of this case, and a summary of federal and
Tennessee case law on the standard for summary judgment. Plaintiff’s memorandum in support
of her Motion states in conclusory fashion, “For the following reasons, the plaintiffs asks that
this Court conclude that the facts and claims submitted to this Court are not in dispute and
therefore she is entitled to Summary Judgment as a matter of law.”
Federal Rule of Civil Procedure 7(b) states that a “request for a court order must be made
by motion” and “state with particularity the grounds for seeking that order.”1 Rule 56(a) requires
a party moving for summary judgment to “identify[] each claim or defense—or the part of each
claim or defense—on which summary judgment is sought” and “show[] that there is no genuine
dispute of material fact and the movant is entitled to judgment as a matter of law.”2 Here
Plaintiff’s Motion for Summary Judgment fails under both Rule 7(b) and Rule 56(a). Plaintiff
never cites case law or legal tests applicable to her specific causes of action, never applies the
law to the facts of her case, never proposes any conclusions of law to be drawn from a correct
application of the law to the undisputed facts, and never argues why she is actually entitled to
1
Fed. R. Civ. P. 7(b).
2
Fed. R. Civ. P. 56(a).
2
judgment as a matter of law. As the Sixth Circuit has remarked, “[d]istrict courts read motions,
not minds, and nothing requires them to distill any possible argument which could be made
based on the materials before them.”3 Because Plaintiff’s Motion fails to state with particularity
the reasons supporting her Motion for Summary Judgment and otherwise fails to show the
reasons she is entitled to judgment as a matter of law, Plaintiff’s Motion for Summary Judgment
is DENIED.
Pursuant to Local Rule 56.1(a), both parties have prepared separate statements of facts
“to assist the Court in ascertaining whether there are any material facts in dispute.”4 A fact is
material if the fact “might affect the outcome of the lawsuit under the governing substantive
law.”5 A dispute about a material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”6 For purposes of summary judgment, a party
asserting that a material fact is not genuinely in dispute must cite particular parts of the materials
in the record and show that the materials fail to establish a genuine dispute or that the adverse
party has failed to produce admissible evidence to support a fact.7
The non-moving party at summary judgment is required to respond to the moving party’s
statements of fact “by either (1) agreeing that the fact is undisputed; (2) agreeing that the fact is
undisputed for the purpose of ruling on the motion for summary judgment only; or (3)
3
Siler v. Webber, 443 F. App’x 50 (6th Cir. 2011) (quoting Blue Cross & Blue Shield of
Ala. v. Weitz, 913 F.2d 1544, 1550 (11th Cir. 1990) (quotation marks omitted)).
4
Local R. 56.1(a).
5
Baynes v. Cleland, 799 F.3d 600, 607 (6th Cir. 2015) (citing Wiley v. United States, 20
F.3d 222, 224 (6th Cir. 1994) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986)).
6
Anderson, 477 U.S. at 248.
7
Fed. R. Civ. P. 56(c)(1).
3
demonstrating that the fact is disputed.”8 Additionally, the non-moving party may “object that
the material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.”9 Where the non-moving asserts that a genuine dispute of material fact
exists, the non-moving must support his or her contention with a “specific citation to the
record.”10 If the non-moving fails to demonstrate that a fact is disputed or simply fails to address
the moving party’s statement of fact properly, the Court will “consider the fact undisputed for
purposes” of ruling on the Motions.11 Under Rule 56 of the Federal Rules of Civil Procedure,
the Court “need consider only the cited materials” but has discretion to “consider other materials
in the record.”12
The Court notes that Plaintiff has submitted a statement of undisputed facts to accompany
her Motion for Summary Judgment. Despite Plaintiff’s failure to show why the Court should
grant her summary judgment, the Court has considered Plaintiff’s statement of undisputed facts
as part of its analysis of the evidence at this stage of the proceedings but only to the extent that
Plaintiff has properly cited evidence and included the evidence in the record. Many of Plaintiff’s
fact contentions either include no citation to the record or lack support in the evidence Plaintiff has
made part of the record. Other allegations are outside of the scope of the claims alleged in Plaintiff’s
8
Local R. 56.1(b).
9
Fed. R. Civ. P. 56(c)(2).
10
Local R. 56.1(b).
11
Fed. R. Civ. P. 56(e)(2); see also Local R. 56.1(d) (“Failure to respond to a moving
party’s statement of material facts, or a non-moving party’s statement of additional facts, within
the time periods provided by these rules shall indicate that the asserted facts are not disputed for
purposes of summary judgment.”).
12
Fed. R. Civ. P. 56(c)(3).
4
Complaint. The Court finds that for purposes of Defendant’s Motion for Summary Judgment,
there is no genuine dispute as to the following material facts with appropriate citations to the
record, unless otherwise noted.
I. Plaintiff’s Employment History with DuPont
Plaintiff Melissa Williams worked as a full service employee at Defendant E. I. du Pont
de Nemours and Co., Inc.’s (“DuPont”) Memphis, Tennessee chemical manufacturing plant from
2004 to March 2, 2016. (Def.’s Statement of Undisputed Fact ¶ 1.) DuPont’s Memphis plant is
divided into three operational areas: Hydrogen Cyanide (“HCN”), Solid Cyanide (“NaCN”), and
Oxone. (Id. ¶ 2.) Plaintiff initially worked in NaCN before transferring to HCN in 2010. (Id. ¶
3.) Plaintiff worked as an operator in HCN and received the top rate of pay available to
operators at DuPont’s Memphis plant until her termination in March 2016. (Id. ¶ 4.)
II. DuPont’s Anti-Discrimination Policies
DuPont has a “Code of Conduct” and a “Respect for People” policy by which all
employees are bound. (Id. ¶ 5.) Both the Code of Conduct and the Respect for People policy
include DuPont’s policies related to diversity and inclusion, equal opportunity and nondiscrimination, people treatment, non-retaliation, and freedom from harassment, among other
things. (Id.) The stated objective of the Code of Conduct and Respect for People policy is to
“[s]trongly encourage those who believe they have been subjected to harassment, retaliation,
discrimination, or mistreatment, to report any such incidents for appropriate management
action.” (Id. ¶ 6.) To that end, the Code of Conduct and Respect for People policy both detail
DuPont’s reporting and investigation process for reported mistreatment. (Id. ¶ 7.) Employees
who believe they have been treated in a manner that violates the Code of Conduct or Respect for
People policy may report the incident to their supervisor or, if they are not comfortable going to
5
their supervisor, may report the incident to any member of site management, to human resources,
or to DuPont’s corporate office in Delaware via DuPont’s anonymous corporate hotline and/or
website for reporting complaints. (Id.)
Regardless of the method by which complaints are made, all complaints are automatically
sent to DuPont’s human resources department, and the investigation process is initiated. (Id. ¶
8.) The on-site human resources department determines whether to investigate the issue itself or
whether to bring in corporate investigators to conduct the investigation. (Id.) In either case, the
investigators interview witnesses identified by the complainant as having relevant information
related to the complaint and may interview additional people as the investigation progresses. (Id.
¶ 9.) At the conclusion of the investigation, the investigators draft a report summarizing their
interviews and stating their findings and submit that report to human resources. (Id. ¶ 10.)
Human resources communicates the findings to the complainant and, if the complainant’s
allegations are substantiated, DuPont takes appropriate corrective action against the offending
party. (Id.) “This action may range from discussing the conduct with the offender and procuring
a commitment to end such actions, to reassignment of the offender, or to disciplinary action,
including possible termination.”
(Id.)
The process for reporting and investigating people
treatment incidents is clearly communicated to employees during training and is also posted at
various spots throughout the workplace and on the human resources website. (Id. ¶ 11.)
Plaintiff adds that she asked Fannie Booker a plant shift supervisor at DuPont’s Memphis
plant for the phone number to report harassment some time in late 2013. (Pl.’s Resp. to Def.’s
Statement of Fact ¶ 7.) Plaintiff called the number Booker had given her and discovered that the
number was a sex hotline. (Id.) When Plaintiff informed Booker about the nature of the phone
6
number, Booker reported it, and the number was subsequently changed or redirected. (Id.)13
III. Plaintiff’s Claims Against James Dortch
In 2006, Plaintiff was interviewed by corporate investigators during DuPont’s
investigation into a female co-worker’s allegation that a male co-worker in NaCN, James Dortch,
had behaved inappropriately towards her. (Def.’s Statement of Undisputed Fact ¶ 12.) During
the course of the interview, Plaintiff brought up her own complaints related to Dortch. (Id.) In
response the investigators expanded the scope of the investigation to include Plaintiff’s
allegations.
(Id.)
At the conclusion of the investigation, the investigators substantiated
Plaintiff’s claims that Dortch had “tease[d]” her and “made inappropriate comments to others
regarding her.” (Id. ¶ 13.) Plaintiff adds that Dortch once kissed her on the mouth and once
pulled her down to sit on his lap. (Pl.’s Resp. to Def.’s Statement of Fact ¶ 13.)
The investigative report recommended taking “some level of corrective action” against
Dortch. (Def.’s Statement of Undisputed Fact ¶ 13.) DuPont was unable to do so, however,
because Dortch retired before the conclusion of the investigative process. (Id.) DuPont referred
Plaintiff to a counselor through DuPont’s Employee Assistance Program (“EAP”) for resources,
support, and education on how to address workplace issues in the future. (Id. ¶ 14.) The parties
disagree over whether DuPont ever communicated the results of the investigation to Plaintiff.
(Id.) Plaintiff never saw Dortch again. (Id.) Following the incident with Dortch, Plaintiff did not
report any issues to management until 2010 and did not report any people treatment issues until
13
Plaintiff also cites deposition testimony from Dawn Hughes, a manager at DuPont’s
Memphis plant, where Hughes allegedly testified that a complaint may not always be taken to
human resources, depending on the nature of the complaint. (Pl.’s Resp. to Def.’s Statement of
Fact ¶ 8.) Plaintiff cites page 119 of Hughes’s deposition for support but failed to make that
page of the transcript part of the record. Therefore, the Court declines to consider Plaintiff’s fact
claim as part of its summary judgment analysis.
7
2013. (Id. ¶ 15.)14
IV. Transfer from NaCN to HCN
In approximately 2010, Plaintiff filed a union grievance alleging that she had been
“overlooked for training” for a job in the NaCN control room in favor of a male co-worker, John
Ruff. (Id. ¶ 16.) Plaintiff’s supervisor in NaCN, Pauline Brown, explained to Plaintiff that she
needed to gain more experience in her current job before training for another job within NaCN.
(Id.) Shortly thereafter, Plaintiff successfully bid on a job in HCN. (Id. ¶ 17.) Upon her transfer
to HCN, Plaintiff was required to undergo training for three jobs—field, lab, and tank farm—in
order to be considered “fully qualified” in HCN. (Id. ¶ 18.) Plaintiff completed the requisite
training in approximately four months, at which point she began receiving the top rate of pay.
(Id.)
Plaintiff worked in HCN without incident until December 31, 2012, when she
complained that DuPont had failed to refund her 2012 purchased vacation time. (Id. ¶ 19.)15
DuPont has a vacation buying plan whereby employees may purchase extra vacation time at the
beginning of each year. (Id. ¶ 20.) Employees must use their purchase vacation time by the end
of the year, or, alternatively, they must arrange for reimbursement of unused purchased vacation
time by December 1 of that year.
(Id.) If the employee does not properly arrange for
reimbursement by December 1, they lose these hours and the money paid for them. (Id.)
DuPont’s Benefit Determination Review Team—which is located in Arkansas, not at the
14
Plaintiff claims that she reported many issues subsequent to the Dortch investigation;
however, Plaintiff has not specified what incidents she reported, shown that she reported the
incidents prior to 2010, or shown that she reported any people treatment issues prior to 2013, as
Defendant claims. The Court finds Defendant’s statement of fact to be undisputed then.
15
Plaintiff responds that she and another male employee were written up for an incident
in 2011 and denied a bonus as a result of the infraction.
8
Memphis plant—responded to Plaintiff’s complaint on January 2, 2013, informing her that
because she did not complete the requisite election for reimbursement of unused vacation time
before December 1, 2012, her request for reimbursement was denied. (Id. ¶ 21.) Plaintiff
appealed the decision, explaining that she had never attempted reimbursement before and
therefore did not know how to do it correctly. (Id.) The DuPont Benefit Appeals Committee
affirmed the Review Team’s decision on March 1, 2013. (Id.) That same year, DuPont’s Benefit
Determination Review Team also denied an appeal for reimbursement from Aaron Penn, a male
employee. (Id. ¶ 22.)
In 2012, DuPont hired several new employees to the HCN area. (Id. ¶ 23.) In May 2013,
Plaintiff wrote a letter to her human resources manager, Kenneth Williams, to report that she was
being picked on and harassed by some of her new co-workers. (Id.) Plaintiff stated that she had
never had a problem with her co-workers before and had only started having problems when the
“new guys” were hired. (Id.)16 Plaintiff and Williams met in June 2013, at which point Plaintiff
became upset and emotional. (Id. ¶ 24.) Williams referred Plaintiff to EAP and to DuPont’s
medical department (“plant medical”) for counseling and support. (Id.) Plant Medical sent
Plaintiff home, and she remained on short-term disability leave for approximately three weeks.
(Id.) When she returned to work in July 2013, Mr. Williams asked her if she needed any further
assistance, and Plaintiff declined. (Id.)17
16
Plaintiff argues that Defendant has taken her letter out of context. Plaintiff testified
during her deposition that she experienced a number of problems with her co-workers, not just
the “new guys.” Be that as it may, the Court finds that Defendant has correctly quoted the letter
in its statement of undisputed fact. Plaintiff’s letter to her human resources manager (ECF No.
66-11, Page ID 667) speaks for itself.
17
Plaintiff argues that the materials cited do not support Defendant’s characterization of
the meeting between Plaintiff and Kenneth Williams. The Court agrees with Plaintiff that
9
DuPont has a Disability Procedure that explains in detail its policy that applies when
employees “are unable to work due to on-occupational disabilities (illness or injury) or are
unable to perform their normal assignment due to disability-related restrictions.” (Id. ¶ 25.)
Under this policy, employees are to timely report their disability or injury to their supervisor and
to Plant Medical. (Id.) Plant Medical examines the employee and determines “if they are able to
return to their normal work assignment, to a restricted work assignment, or if they are to be sent
home.” (Id.) “Plant Medical’s opinion is final with respect to any employee’s ability to return to
work.”
(Id.) Upon the employee’s return to work, Plant Medical determines their work
restrictions, if any, and the employee’s supervisor determines if there is any available restricted
work in the area. (Id.) These work restrictions vary based on the individual and his or her
symptoms and work responsibilities. (Id.) Plaintiff was placed on disability leave and work
restrictions (also known as “light duty”) at various points between 2012 and 2015. (Id. ¶ 26.)
Plaintiff received disability payments from DuPont during these instances. (Id.)
From 2010 to early 2014, Plaintiff worked in the HCN field and lab jobs. (Id. ¶ 27.) In
early 2014, Plaintiff requested to move to the tank farm, another job within HCN. (Id.) This
request was granted based on Plaintiff’s seniority at the plant. (Id.) Shortly after transferring to
the tank farm, Plaintiff asked her supervisor Gary Fish for training on other HCN-area jobs
(namely, trade waste and aminonitriles (“AN”)). (Id. ¶ 28.) Fish told Plaintiff she needed to
gain more experience and learn more about her new job in the tank farm before being trained on
another job. (Id.) As supervisor, Fish is responsible for determining who receives training and
when. (Id. ¶ 29.) He primarily bases this determination on how long an employee has been in
their particular job (not the employee’s seniority in the area), but he also considers the needs of
Williams testified about his June 2013 meeting with Plaintiff but never actually mentioned
Plaintiff’s letter to him as part of the meeting. Plaintiff’s other objections are without merit.
10
the shift or of the particular employee.
(Id.) An employee with disability-related work
restrictions may receive priority for training if they are unable to perform their typical job
assignments. (Id.) For example, two of Plaintiff’s co-workers, George Bryson and Robin
McGluen, both received training in trade waste while on light duty because they were unable to
perform their normal jobs in the field for an extended period of time. (Id.)18
Fish is not responsible for assigning employees to work overtime; rather, the overtime
schedule is maintained by non-management employees. (Id. ¶ 30.) In HCN, the employee
responsible for overseeing overtime is LaTonya King, Plaintiff’s female co-worker. (Id.)
Overtime is assigned to the person with the lowest number of overtime hours. (Id.)
Plaintiff
regularly worked overtime between 2012 and 2014, except during those periods where she was
placed on disability-related work restrictions that prevented her from doing so. (Id. ¶ 31.)
In February 2014, DuPont sent corporate investigators Paul Patterson and Angie Caillier
to the Memphis plant to investigate complaints made by one of Plaintiff’s co-workers. (Id. ¶ 32.)
Though Plaintiff was identified as a witness, during her interview, she brought up her own
complaints. (Id.) Accordingly, the investigators initiated a formal investigation into Plaintiff’s
complaints that she was “being harassed and retaliated against by supervisors and overlooked for
training and being blocked from overtime,” that she had been subjected to sexual innuendos from
co-workers who made comments about “tak[ing] one for the team,” and that she had been called
a “dumb ass” by a co-worker. (Id.) After interviewing fifteen witnesses, the investigators were
unable to corroborate Plaintiff’s claims that she was denied training or called a “dumb ass” by a
coworker. (Id. ¶ 33.) The investigators did corroborate that there had been “conversations in the
18
Plaintiff disputes Defendant’s contention that Fish had discretion about which
employee received training. But Plaintiff cites no evidence to support her claims to the contrary.
Therefore, the Court finds that this fact is undisputed for purposes of summary judgment.
11
control room about being a member of the team or being a team player” but could not
corroborate that such comments were sexual in nature. (Id.)
The investigators stated their conclusions as follows: “There is insufficient [evidence] of
disrespectful treatment or exclusion of [Plaintiff] by her co-workers. The team also found no
purposeful exclusion of Plaintiff by her co-workers with intent to cause her anguish.” (Id.) The
investigators further found: “It appears there is an uncomfortable work environment in the HCN
Group and that all employees are uncomfortable interacting with [Plaintiff] because of [her]
unpredictable volatility. Other females did not feel the HCN work environment was
disrespectful.”
(Id. ¶ 34.)
Plaintiff adds that the investigators never interviewed Cynthia
Etheridge, who would have corroborated statements from other employees about “taking one for
the team.”
(Pl.’s Resp. to Def.’s Statement of Fact ¶ 33.)19
Plaintiff filed a charge of
discrimination with the EEOC in April 2014 alleging many of the same complaints raised in the
internal investigation. (Id. ¶ 35.)
On May 30, 2014, Plaintiff complained to her plant shift supervisor, Richard Thornton,
that she had been harassed by several male and female co-workers. (Id. ¶ 36.) Specifically,
Plaintiff stated that she became upset when her production manager, Janette Parker, “gave her
work-related direction on the process of loading railcars in the HCN Tank Farm;” that two or
three female co-workers “harassed her by cluttering-up the HCN Women’s Locker Room” while
she was changing into her uniform prior to her shift;” and that a male co-worker, Dave Faulker,
yelled at her for not performing her job duties in a timely manner. (Id.) During a subsequent
19
Plaintiff also objects to statements contained in the investigative report as hearsay. The
internal investigative reports are properly considered at summary judgment “not to prove their
truth, . . . but to demonstrate the state of mind and motive of” Defendant in its decisionmaking.
Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598 (6th Cir. 2007) (citation omitted).
12
meeting with Thornton, Plaintiff began “crying excessively,” so Mr. Thornton referred her to
Plant Medical. (Id. ¶ 37.) Plant Medical placed her on short-term leave, and she returned to
work on June 17, 2014. (Id.) Upon her return to work, Plaintiff requested a change in her shift
schedule to enable her to adjust to the medication that she had been prescribed while on leave,
and DuPont accommodated her request. (Id.)
In November 2014, DuPont sent corporate investigators Walter Connor and Sharon Ford
to the Memphis plant to investigate Plaintiff’s claim that she was treated disrespectfully by a coworker, David Faulkner, while performing work in the tank farm in October 2014. (Id. ¶ 38.)
Plaintiff alleged that Faulkner “raise[d] his voice and . . . argu[ed] with her about how the job
was to be done.” (Id.) Plaintiff also reasserted her claims that she had been denied training by
Fish, that she did not receive the help necessary to perform her job, and that she been “denied
overtime opportunities by LaTonya King, a control room operator who handles the schedule for
overtime assignments.” (Id.)
After interviewing sixteen witnesses, the investigators were unable to substantiate any of
Plaintiff’s claims. (Id. ¶ 39.) The investigators did substantiate that Faulkner had raised his
voice at Plaintiff but found that this was done because of loud “ambient plant noise” and was not
“done with any intent to be disrespectful.” (Id.) The investigators also found that “[i]n every
situation, help has been provided to [Plaintiff] to complete the work required albeit there have
been times when the extra help did not arrive specifically at the time [Plaintiff] requested it.”
(Id.) As for training, the investigators found that “[t]here was no evidence presented that Gary
Fish ever[] specifically denied her training opportunities. [Plaintiff] could not identify training
that she had not had, although she complained she did not feel trained to the extent that she
wanted it.” (Id.) Finally, the investigators found that “[b]ased upon the interviews of LaTonya
13
King and Gary Fish, it is clear that [Plaintiff] doesn’t know or understand the overtime procedure
in place at the plant. . . . It is not known whether [Plaintiff] has ever read the [written overtime
procedure] after being advised to do so by LaTonya King and Gary Fish.” (Id.)
The investigators concluded: “It is clear that all of the interviewees believe that if they
question or challenge [Plaintiff] on how work is to be done, it becomes an argument or
confrontation more often than not initiated by [Plaintiff.] All interviewees described [Plaintiff] as
hard working, dedicated, conscientious, and one who wants to do the right thing the right way,
but she insists on getting her way and makes people feel nervous. Not one person told us they
had refused or, would ever refuse, to work with her. However, they are all conscious of the fact
that when they do work with her, if they question her and how she wants to do things, it will
often lead to a confrontation. It is our finding that [Plaintiff] has received the training required
for her position, has been assigned to a more experienced mentor in David Faulkner for on the
job training, has received the help she needed to do the work, and has received overtime
opportunities when she was appropriately positioned to receive them.” (Id.)
Plaintiff filed the instant Complaint on February 16, 2015, stating claims of gender
discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act
of 1964. (Id. ¶ 41.) The remaining facts addressed in Defendant’s statement of undisputed facts
concern events that occurred after Plaintiff filed suit and which are still subject to ongoing
administrative procedures. As such, the Court declines to consider these facts or the merits of
any cause of action based on these facts at this time.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a) provides that a party is entitled to summary
judgment if the moving party “shows that there is no genuine dispute as to any material fact and
14
the movant is entitled to judgment as a matter of law.”20 The Supreme Court has stated that
“[t]hough determining whether there is a genuine issue of material fact at summary judgment is a
question of law, it is a legal question that sits near the law-fact divide.”21 In reviewing a motion
for summary judgment, the evidence must be viewed in the light most favorable to the
nonmoving party,22 and the “judge may not make credibility determinations or weigh the
evidence.”23 When the motion is supported by documentary proof such as depositions and
affidavits, the nonmoving party may not rest on his pleadings but, rather, must present some
“specific facts showing that there is a genuine issue for trial.”24 It is not sufficient “simply [to]
show that there is some metaphysical doubt as to the material facts.”25 These facts must be more
than a scintilla of evidence and must meet the standard of whether a reasonable juror could find
by a preponderance of the evidence that the nonmoving party is entitled to a verdict.26 In this
Circuit, “this requires the nonmoving party to ‘put up or shut up’ [on] the critical issues of [his]
asserted causes of action.”27
When determining if summary judgment is appropriate, the Court should ask “whether
20
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Canderm
Pharmacal, Ltd. v. Elder Pharms, Inc., 862 F.2d 597, 601 (6th Cir. 1988).
21
Ashcroft v. Iqbal, 556 U.S. 662, 674 (2009).
22
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
23
Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994).
24
Celotex, 477 U.S. at 324.
25
Matsushita, 475 U.S. at 586.
26
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
27
Lord v. Saratoga Cap., Inc., 920 F. Supp. 840, 847 (W.D. Tenn. 1995) (citing Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989)).
15
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-side that one party must prevail as a matter of law.”28 Summary judgment must be entered
“against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.”29
ANALYSIS
Defendant seeks judgment as a matter of law on Plaintiff’s claims for gender
discrimination, hostile work environment, and retaliation. The Court considers each claim in
turn.
I. Gender Discrimination
Title VII makes it an “unlawful employment practice for an employer . . . to discriminate
against any individual . . . because of [his] race, color, religion, sex, or national origin.”30
Plaintiff has the burden to establish a prima facie case of sex discrimination by adducing
evidence of the following: “(1) she is a member of a protected group; (2) she was subjected to an
adverse employment decision; (3) she was qualified for the position; and (4) similarly situated
non-protected employees were treated more favorably.”31 If the plaintiff can carry her burden
and establish a prima facie case of discrimination, “the burden shifts to the defendant to offer
evidence of a legitimate, non-discriminatory reason for the adverse employment action.”32
28
Anderson, 477 U.S. at 251–52.
29
Celotex, 477 U.S. at 322.
30
42 U.S.C. § 2000e–2(a)(1).
31
Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 776 (6th Cir. 2016)
(quoting Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004)).
32
Id. (quoting White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008)).
16
“[T]he employer’s burden is satisfied if [it] simply explains what [it[ has done or produc[es]
evidence of legitimate nondiscriminatory reasons.”33 At the third stage of the burden-shifting
analysis, the plaintiff must come forward with evidence that the defendant’s proffered reason is
pretext for unlawful discrimination.34 At the pretext stage, the plaintiff’s burden “merges with
the ultimate burden of persuading the court that she has been the victim of intentional
discrimination.”35
Defendant concedes that Plaintiff is a member of the protected class but argues that
Plaintiff was not subject to any adverse employment action. Defendant has addressed a number
of facts in its opening brief and asserted that none of them amount to an adverse action. Plaintiff
answers in her response brief that she suffered three distinct adverse employment actions: denial
of training, denial of overtime opportunities due to a lack of appropriate training, and being held
back from assuming her new position in liquid cyanide for one year so that she could train her
replacement. Because Plaintiff has not addressed any of the other issues raised by Defendant in
its opening brief, the Court confines its analysis to the three distinct actions, which Plaintiff
claims were materially adverse.
“An adverse employment action in the context of a Title VII discrimination claim is a
materially adverse change in the terms or conditions of employment because of the employer’s
actions.”36 “Termination, decrease in wage or salary, change in title, diminished material
33
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
34
Jackson, 814 F.3d at 776.
35
Id. (quoting Burdine, 450 U.S. at 256).
36
Kuhn v. Washtenaw Cnty., 709 F.3d 612, 625 (6th Cir. 2013) (internal quotation marks
omitted).
17
responsibilities, or a material loss of benefits are all examples of a materially adverse change.”37
A denial of training that deprives an employee of increased pay qualifies as an adverse
employment action.38 Training to perform additional duties, “even if other employees were
allowed to attend the training, is not an adverse employment action” unless “failure to attend the
training would result, or has resulted, in any demotion, loss of pay, loss of responsibility, or other
materially adverse effect.”39 The Sixth Circuit has noted that the loss of overtime pay can
constitute an adverse employment action.40 Plaintiff alleges that Defendant denied her the
opportunity to engage in cross-training, that is, job training to perform additional duties within
her area of the Memphis plant. Plaintiff further alleges that she would have qualified for more
overtime opportunities in Defendant’s Memphis plant had she received the training other
similarly situated employees received. Plaintiff’s denial of training claim and denial of overtime
claim, therefore, overlap to a large degree.
Viewing the evidence in the light most favorable to Plaintiff, Plaintiff has not shown that
she actually was denied any specific opportunity for training resulting in a loss of pay or
overtime. During her tenure in NaCN between 2006 and 2010, Plaintiff asserts without any
specifics that Defendant denied her training. Plaintiff has cited no evidence of being denied
overtime while she worked in NaCN. Plaintiff points only to a single incident in 2010 when
Defendant allowed a male employee with less seniority, John Ruff, to receive training. Plaintiff
37
Mensah v. Mich. Dept. of Corrections, 621 F. App’x 332, 334 (6th Cir. 2015).
38
Reed v. Procter & Gamble Mfg. Co., 556 F. App’x 421, 429–30 (6th Cir. 2014) (citing
Clay v. United Parcel Serv., Inc., 501 F.3d 695, 710 (6th Cir. 2007)).
39
40
Creggett v. Jefferson Cty. Bd. of Educ., 491 F. App’x 561, 567 (6th Cir. 2012).
Lentz v. City of Cleveland, 333 F. App’x 42, 57 (6th Cir. 2009) (citing Broska v.
Henderson, 70 F. App’x 262, 267–68 (6th Cir. 2003)).
18
filed a grievance over the Ruff incident and ultimately elected to bid on and transfer to a position
in HCN, which she received. However, Plaintiff has not shown how the Ruff incident caused her
to suffer a loss of pay or otherwise amounted to an adverse employment action. Therefore, the
Court holds that Plaintiff has failed to prove this specific claim.
Likewise, Plaintiff has not shown that Defendant denied her training or overtime during
her tenure in the HCN area of the plant between 2010 and 2014. Plaintiffs’ testimony about the
denial of her requests for training shows that Plaintiff had to learn certain tasks on the job
without the benefit of training sessions.41 Plaintiff’s testimony does not connect this lack of
training to a loss of pay or opportunity for overtime. The undisputed evidence at summary
judgment shows that a non-managerial employee LaTonya King assigned overtime to the person
with the lowest number of overtime hours. Other undisputed evidence shows that Plaintiff
regularly worked overtime between 2012 and 2014, except during times when she had disabilityrelated work restrictions. Plaintiff has not come forward with any other evidence to show that
she was denied overtime while she worked in HCN or that the training she sought and was
denied would have allowed her to get more overtime. Plaintiff has made unsupported assertions
about Fish admitting “that being cross-trained allows an operator to make more money” and
cancelling overtime she was scheduled to work but without including any evidence in the record
to support her claims. 42 Because Plaintiff cannot show that she lost income or suffered any other
diminished responsibility due to a lack of training or related lack of overtime, the Court holds
that Plaintiff has not shown that the alleged lack of training or overtime constitutes an adverse
employment action.
41
See Williams Dep. 127:1-128:18, Sept. 22, 2015 (ECF No. 81-5).
42
Pl.’s Resp. in Opp’n 7 (ECF No. 81-2).
19
This leaves Plaintiff’s allegation that she suffered an adverse action when Defendant
required her to work in her old position for one year while she trained her replacement before
moving to her new position in HCN. The Court holds that just as with her other claims, Plaintiff
has not shown how this situation was an adverse employment action. There is no proof that
Plaintiff received less pay or benefits or an inferior job title with less meaningful responsibilities
during this interim or that she lost the opportunity for bonuses, overtime, or promotion as a result
of the delay. Even if she had, Plaintiff has not shown that Defendant treated similarly situated
employees more favorably.43 Defendant’s Motion for Summary Judgment must be granted to
Plaintiff’s gender discrimination claims for these reasons alone.
Assuming for the sake of argument that Plaintiff could make out a prima facie claim of
gender discrimination, Plaintiff has adduced no evidence to show that Defendant took these
actions against her on the basis of her gender. Defendant asserts that the overtime and training
assignments were made according to policy. Plaintiff can establish pretext that Defendant’s
given reasons were pretextual under any of three different showings: (1) that the proffered
reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the
employer’s action, or (3) that they were insufficient to motivate the employer’s action.”44
Plaintiff has attempted to make none of these showings at summary judgment. Therefore,
Defendant’s Motion for Summary Judgment is GRANTED as to Plaintiff’s gender
43
Plaintiff argues in her brief that “Defendant has not disputed that Plaintiff was held
back, nor produced any evidence to prove that she was not treated differently in being held back
a year to train (really re-train) her replacement.” Pl.’s Resp. in Opp’n 8 (ECF No. 81-2).
Plaintiff’s argument reverses the burden of proof on this issue. Plaintiff has the burden to come
forward with proof of a similarly situated male employee receiving more favorable treatment.
Defendant does not have the burden to prove anything at the prima facie stage.
44
Ferrari v. Ford Motor Co., 826 F.3d 885, 895 (6th Cir. 2016) (citing Romans v. Mich.
Dep’t of Human Servs., 668 F.3d 826, 839 (6th Cir. 2012)).
20
discrimination claims.
II. Hostile Work Environment
Defendant next seeks summary judgment on Plaintiff’s claim for hostile work
environment. Title VII prohibits discrimination that is “so severe or pervasive as to alter the
conditions of [the victim’s] employment and create an abusive working environment.”45 In order
to establish a prima facie case of hostile work environment based on race, a plaintiff must
demonstrate the following elements: (1) that he is a member of a protected class; (2) that he was
subjected to harassment, either through words or actions, based on her gender; (3) that the
harassment had the effect of unreasonably interfering with the plaintiff’s work performance and
creating an objectively intimidating, hostile, or offensive work environment; and (5) there exists
some basis for liability on the part of the employer.46 The Supreme Court has “made it clear that
conduct must be extreme to amount to a change in the terms and conditions of employment.”47
Conduct that is “merely offensive” is insufficient to support a hostile work environment claim.48
Defendant concedes at summary judgment that Plaintiff is a member of a protected class
and can show that she was subject to unwelcome harassment.
But Defendant argues that
Plaintiff cannot prove that the harassment was because of her gender or that the harassment was
severe or pervasive.
With respect to whether the alleged harassment had the effect of
45
Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999) (quoting Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 67 (1986)).
46
Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th Cir. 2009)
(citation and quotation marks omitted)).
47
Faragher v. Boca Raton, 524 U.S. 775, 788 (1998).
48
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
21
unreasonably interfering with plaintiff’s work performance and creating an objectively
intimidating, hostile, or offensive work environment, an employee is not required to show that
the alleged harassment was both subjectively and objectively severe and pervasive.49 Rather, she
need only show that “the [work] environment is objectively hostile and the harassment is
subjectively severe and pervasive.”50
Whether Plaintiff subjectively viewed the alleged
harassment as severe and pervasive “is quintessentially a question of fact.”51 In other words,
Plaintiff’s subjective view of the harassment is not a question the Court can reach at the
summary judgment stage.
The Court can consider whether a reasonable person could have found the work
environment to be objectively hostile. The Court must look at the totality of the circumstances to
analyze whether the harassment was sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.52 Appropriate factors to
consider include the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.”53 “Isolated incidents. . . , unless extremely
49
Gallagher, 567 F.3d at 274.
50
Id.; see also Williams v. Gen. Motors Corp., 187 F.3d 553, 568 (6th Cir. 1999) (“[t]he
focus of the objective/subjective inquiry should remain on (1) whether a reasonable person
would find the environment objectively hostile, and (2) whether the plaintiff subjectively found
the conduct ‘severe or pervasive.’ ”).
51
Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th Cir. 2006) (citation and internal
quotation marks omitted).
52
Clay v. United Parcel Serv., Inc., 501 F.3d 695, 707 (6th Cir. 2007) (citation and
quotation makes omitted).
53
Id. (quoting Harris, 510 U.S. at 23).
22
serious, will not amount to discriminatory changes in the terms or conditions of employment.”54
Furthermore, only incidents that occurred because of a plaintiff’s protected status are properly
considered in the context of a claim of hostile work environment.55
The Court finds it unnecessary to decide whether the harassment Plaintiff suffered was
due to her gender or was objectively hostile. The Court will assume without deciding that
Plaintiff can prove both of these elements. Fatal to Plaintiff’s prima facie case for hostile work
environment is her failure to create a triable issue about Defendant’s liability. It is well-settled
that employers are not automatically liable for sexual harassment perpetrated by their
employees.56 An employer’s liability for sexual harassment committed by a non-supervisory coworker “depends on the plaintiff showing that the employer knew (or reasonably should have
known) about the harassment but failed to take appropriate remedial action.”57 In other words,
the employer is liable “if its response manifests indifference or unreasonableness.”58
The
employer’s response is appropriate if it is “reasonably calculated to end the harassment.”59 The
Sixth Circuit has commented that “[w]hen an employer responds with good-faith remedial
54
Bowman v. Shawnee St. Univ., 220 F.3d 456, 463 (6th Cir. 2000).
55
Howard v. Bd. of Educ. of Memphis City Schs., 70 F. App’x 272, 282 (6th Cir. 2003).
56
Gallagher, 567 F.3d at 274–75 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
(1998); Faragher, 524 U.S. at 775) (other citations omitted)).
57
Id. (citation omitted).
58
Id. (citation omitted).
59
Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 340 (6th Cir. 2008) (quotation
omitted).
23
action, we cannot say that the employer has itself committed an act of discrimination.”60 An
appropriate response “may include promptly initiating an investigation.”61
Here it is undisputed that Defendant had a policy prohibiting sexual harassment and a
system in place to allow employees to report harassment. Pursuant to the policy, Defendant
conducted more than one investigation into Plaintiff’s allegations of harassment. Other than her
2006 complaint against James Dortch, which is not at issue in this case, Plaintiff has made
allegations of severe or pervasive harassment only against her co-workers, not her supervisors.62
Plaintiff refers to one of her supervisors Gary Fish walking by her without acknowledging her
presence, greeting her on several occasions with “ho, ho, ho,” and “often” referring to her as
“nub” because of her partially amputated finger.63 Viewing the evidence in the light most
favorable to Plaintiff, Fish’s behavior was rude and certainly unbefitting a manager.
But
“[s]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions of employment.”64 Neither will
the “sporadic use of abusive language, gender-related jokes, and occasional teasing.”65 Perhaps
60
Mullins v. Goodyear Tire & Rubber Co., 291 F. App’x 744, 747 (6th Cir. 2008)
(quoting Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 873 (6th Cir. 1997)).
61
Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 311 (6th Cir. 2016).
62
Plaintiff’s proof about Defendant’s phone hotline for harassment complaints being an
inappropriate sex hotline does not appear to implicate any specific managerial employee. In fact,
it is not clear to the Court what actually happened. Defendant claims that Plaintiff’s only proof
about the episode is her own testimony and a post-it note with an incorrect telephone number
written on it. In any event, accepting Plaintiff’s testimony about the episode as true, the hotline
incident while clearly sexual in nature was an isolated offense. Bowman, 220 F.3d at 463.
63
Pl.’s Resp. in Opp’n 17-18 (ECF No. 81-2); Williams Dep. 134:5-18.
64
Cleveland v. S. Disposal Waste Connections, 491 F. App’x 698, 708 (6th Cir. 2012).
65
Clark v. United Parcel Serv., Inc., 400 F.3d 341, 352 (6th Cir. 2005) (quoting
Faragher, 524 U.S. at 788).
24
more importantly, even assuming that Fish’s comments to Plaintiff were severe and pervasive,
Plaintiff has not shown that Fish’s alleged harassment was based on Plaintiff’s gender.
Therefore, the Court concludes that Plaintiff has not shown that her supervisors engaged
harassment.
As for Plaintiff’s claims for coworker harassment, there is no evidence that the
harassment was based on Plaintiff’s gender or that management had reason to be aware of
hostility besides the incidents Plaintiff reported and human resources investigated.66 While
Plaintiff’s brief refers repeatedly to harassment from co-workers, the proof viewed in a light
most favorable to Plaintiff does not show that the harassment was sexual in nature or because of
Plaintiff’s gender. There is also no evidence that Defendant engaged in unreasonable delays in
conducting its investigations or displayed an indifference to Plaintiff’s internal complaints.67
Plaintiff questions the thoroughness and legitimacy of Defendant’s investigations but without
citation to probative evidence to show that Defendant’s responses to her complaints
“manifest[ed] indifference or unreasonableness.”
Plaintiff argues in her brief that the corporate investigations were flawed in several ways.
For example, according to Plaintiff, the investigators did not speak with all of the relevant
witnesses or accept all of Plaintiff’s notes about the incidents being investigated. Plaintiff has
the right to have Defendant take reasonable action to remedy harassment; however she “may not
66
Cf. Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999).
67
Smith, 813 F.3d at 311 (holding that the reasonableness of the employer’s “total
inaction for ten days, where Defendant knew that [a harassing supervisor] had touched Plaintiff,”
the supervisor had a history of inappropriate harassment, and had been warned “that further
complaints would result in termination,” was a question for the jury).
25
dictate an employer’s action against a co-worker.”68 While it is true that the investigations did
not always corroborate Plaintiff’s complaints, the fact remains that Defendant continued to
investigate all of Plaintiff’s allegations as they arose. For purposes of summary judgment,
Plaintiff has not shown that Defendant did not have an honest belief in the conclusions reached
by the investigators.69 Because Plaintiff has failed to carry her burden as to this element,
Defendant’s Motion for Summary Judgment is GRANTED as to her hostile work environment
claims.
III. Retaliation
Defendant finally seeks judgment as a matter of law on Plaintiff’s claim for retaliation.
“[S]evere or pervasive supervisor harassment following a sexual-harassment complaint can
constitute retaliation for the purposes of a Title VII action.”70 Plaintiff does not allege any
single, discrete act of retaliation but a systematic pattern of harassment and abuse from
supervisors and coworkers triggered by her participation in Defendant’s investigation of James
Dortch in 2006.71 The legal standard of liability for retaliation by a supervisor differs from the
68
Blankenship, 123 F.3d at 874.
69
Michael, 496 F.3d at 598 (“Michael’s disagreement with the facts uncovered in
Caterpillar’s investigation does not create a genuine issue of material fact that would defeat
summary judgment ‘as long as an employer has an honest belief in its proffered
nondiscriminatory reason.’”).
70
71
Akers v. Alvey, 338 F.3d 491, 498 (6th Cir. 2003).
Plaintiff’s brief refers to one instance where she received a disciplinary write-up, which
would arguably constitute a discrete adverse action. Pl.’s Resp. in Opp’n 14 (ECF No. 81-2).
However, Plaintiff testified that the incident happened in 2005 or 2006 and mentioned that there
was documentation of the incident, presumably establishing the exact date Defendant took the
adverse action against her. Plaintiff has not made the document part of the record, and her
testimony about the incident fails to show that the write-up occurred after her protected
complaints about Dortch in 2006 or any other protected activity. Without proof showing that she
received the write-up after engaging in protected activity, Plaintiff has not shown that her
26
legal standard of liability for retaliation by a coworker. As such, the Court considers each theory
separately.
A. Retaliation – Supervisor Harassment
To make out her claim of supervisor harassment, Plaintiff must establish the following
elements of a prima facie case of retaliation: (1) she engaged in activity protected under Title
VII; (2) her exercise of her protected rights was known to Defendant; (3) an adverse employment
action was subsequently taken against her or she 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.72 Defendant concedes at summary judgment
that Plaintiff took a number of actions protected by Title VII’s anti-retaliation provision. This
element of her claim is not in dispute. But Defendant argues that Plaintiff cannot show her
supervisors took adverse action against her because none of the actions actually dissuaded her
from continuing to make protected complaints.
In the context of retaliation, “a plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a charge of discrimination.”73
The Sixth Circuit has described this as “a more liberal definition” than the proof of discrete
activity was the “but for” cause of the disciplinary action. Univ. of Tex. Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533 (2013) (holding that Title VII retaliation “requires proof that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action or actions of
the employer”).
72
Fuhr v. Hazel Park School Dist., 710 F.3d 668, 674 (6th Cir. 2013) (citing Garner v.
Cuyahoga Cnty. Juvenile Court, 554 F.3d 624, 639 (6th Cir. 2009)).
73
Id. (citing See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)).
27
adverse action to support a discrimination claim.74 As such, retaliation under Title VII sets a
“relatively low bar” to prove a materially adverse action.75
The Court need not reach the merits of Defendant’s argument about whether Plaintiff was
actually dissuaded from engaging in protected activity. Plaintiff maintains that her supervisor
Gary Fish engaged in systematic harassment in retaliation for Plaintiff’s protected complaints
against Dortch in 2006. But as the Court has already noted, Plaintiff’s allegations against Fish
appear to consist of his “sporadic use of abusive language” and “occasional teasing.”76 Fish’s
actions were arguably not so severe and pervasive as to alter the conditions of Plaintiff’s
employment. Perhaps more importantly, Plaintiff has not shown a causal connection between
Fish’s comments to her and her protected activity. As is clear from Plaintiff’s brief, her theory
of the case is that management and her coworkers retaliated against Plaintiff after her complaints
against James Dortch in 2006. Plaintiff testified that Fish made the habitual “ho, ho, ho”
comments in 2013. Plaintiff has failed to offer any proof of a causal connection between her
participation in the Dortch investigation in 2006 and Fish’s comments in 2013.
And Plaintiff
has now shown when Fish began to call her “nub.”77 As previously noted, without proof of
when an alleged act of retaliation occurred, Plaintiff cannot show that her protected activity was
74
Michael, 496 F.3d at 596.
75
Id.
76
Clark, 400 F.3d at 352 (quoting Faragher, 524 U.S. at 788).
77
Defendant argues that the proof shows Fish made his “nub” comment in 2004.
Defendant cites for support Plaintiff’s responses to written interrogatories where she answered
that Fish called her “nub” and asked her to hold up her fingers in 2004. Def.’s Mot. for Summ.
J., ex. S (ECF No. 66-20). Plaintiff asserts in her brief that Fish made the comment repeatedly
from 2006 to 2015. However, Plaintiff has failed to support her claim with any proof. The
deposition testimony Plaintiff cites for support does not indicate when Fish made the comment at
all. Pl.’s Resp. in Opp’n 18 (citing Williams Dep. 134:7-135:7).
28
the “but for” cause of the retaliation. Therefore, Defendant’s Motion for Summary Judgment is
GRANTED as to this issue.
B. Retaliation – Coworker Harassment
This leaves Plaintiff’s claim for retaliation based on unwelcome harassment from her
coworkers. “In appropriate circumstances, Title VII permits claims against an employer for
coworker retaliation.”78
In order to hold an employer liable for a coworker’s harassment,
Plaintiff must prove that (1) the coworker’s retaliatory conduct was sufficiently severe so as to
dissuade a reasonable worker from making or supporting a charge of discrimination; (2)
supervisors or members of management had actual or constructive knowledge of the coworker’s
retaliatory behavior; and (3) supervisors or members of management have condoned, tolerated,
or encouraged the acts of retaliation, or have responded to the plaintiff’s complaints so
inadequately that the response manifests indifference or unreasonableness under the
circumstances.79
For purposes of summary judgment, the Court will assume without deciding that
Plaintiff can show her coworker’s retaliatory conduct was sufficiently severe so as to dissuade a
reasonable worker from making or supporting a charge of discrimination. Plaintiff has cited
many, many instances of mistreatment from her coworkers, running the gamut from unwelcome
teasing to implied threats of not assisting Plaintiff in case of a life-threatening, on-the-job
emergency. The Court will further assume that Plaintiff can show that supervisors or members
of management had actual or constructive knowledge of Plaintiffs’ coworkers’ behavior. As
already discussed in the context of Plaintiffs’ hostile work environment claim, Plaintiff made a
78
Laster v. City of Kalamazoo, 746 F.3d 714, 732 (6th Cir. 2014) (quoting Hawkins v.
Anheuser–Busch, Inc., 517 F.3d 321, 346 (6th Cir. 2008)).
79
Id. (citing Hawkins, 517 F.3d at 347).
29
number of internal complaints to Defendant about the treatment she received from her
coworkers.
Plaintiff’s retaliation claim fails at summary judgment for lack of proof that Defendant
condoned, tolerated, or encouraged the acts of retaliation or responded to Plaintiff’s complaints
so inadequately that the response manifested indifference or unreasonableness under the
circumstances.
Defendant conducted six separate investigations to ferret out possible
discrimination and even sent investigators from DuPont’s corporate offices to the Memphis plant
to interview Plaintiff and other witnesses, showing that Defendant took Plaintiff’s claims
seriously.80 This is was not a situation where the employer was aware of the allegations of
harassment but undertook no formal investigation or failed to interview any witnesses at all “to
determine whether the complaints were valid or who was responsible for the mistreatment.”81
Plaintiff has produced no evidence from which a reasonable juror could find that Defendant’s
efforts “manifest[ed] indifference or unreasonableness under the circumstances.”82 Therefore,
80
Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999) (“Significantly, a court
must judge the appropriateness of a response by the frequency and severity of the alleged
harassment.”) (citation omitted).
81
Cf. Waldo v. Consumers Energy Co., 726 F.3d 802, 817 (6th Cir. 2013) (employer
failed to undertake formal investigation, interview the complaining employees coworkers,
identify who was responsible for the mistreatment, or report internal complaints to upper
management); see also Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 312 (6th Cir. 2016)
(holding a triable issue existed over the employer’s response to complaint of harassment where
the harassing coworker had a history of sexual harassment in the workplace, and the employer
did not separate the harassing coworker from the plaintiff, suspend the harassing coworker
pending an investigation, or initiate its investigation in a timely manner); Jackson, 191 F.3d at
663–64 (holding that when the employer knew about complaints but “made no effort to discover
the perpetrators” of harassment, the employer’s response was not reasonably calculated to end
the harassment). Plaintiff makes a number of arguments criticizing the thoroughness of the
investigations. However, none of the evidence cited by Plaintiff supports her characterizations
of the investigations or demonstrates that Defendant was indifferent to her complaints.
82
Laster, 746 F.3d at 732.
30
Defendant’s Motion for Summary Judgment is GRANTED as to Plaintiff’s coworker retaliation
claim.
IV. Remaining Issues
Defendant also seeks judgment as a matter of law on Plaintiff’s claim for punitive
damages. The Court finds it unnecessary to reach this issue to decide Defendant’s Motion for
Summary Judgment. The Court has concluded that Plaintiff’s substantive claims for relief fail,
and the Court has granted the parties an extension of the schedule and a continuance of the trial
so that Plaintiff can exhaust the administrative remedies for her termination and pursue
additional discovery concerning her termination. Therefore, the Court reserves its ruling on the
issue of punitive damages, until such time as Plaintiff has exhausted her termination claim and
conducted additional discovery on it.
Likewise, the Court finds it unnecessary to reach Defendant’s Motion to Exclude
Plaintiff’s Expert Witnesses (ECF No. 61). Defendant seeks the exclusion of two opinion
witnesses disclosed by Plaintiff, arguing that Plaintiff failed to comply with the Federal Rules of
Civil Procedure. Plaintiff has responded in opposition to Defendant’s Motion. The Court finds
it unnecessary to decide the Motion at this juncture of the case. The gravamen of Defendant’s
Motion is that Plaintiff failed to meet the deadlines for the disclosure of her experts under the
Rule 16(b) case management scheduling order.
However, subsequent to the filing of
Defendant’s Motion to Exclude, Plaintiff moved for an extension of the scheduling order,
including an extension of her deadline to disclose her expert information. While the Court
expresses no opinion on whether Plaintiff’s previous disclosures complied with the Federal Rules
of Civil Procedure, the Court finds that the extension of the deadline for expert discovery renders
31
Defendant’s Motion to Exclude moot. Therefore, the Motion is DENIED but without prejudice
to raise the issue in a subsequent motion.
CONCLUSION
Defendant’s Motion for Summary Judgment is GRANTED as to Plaintiff’s claims for
gender discrimination, hostile work environment, and retaliation, and Plaintiff’s Motion is
DENIED. Defendant’s Motion to Exclude Plaintiff’s Experts is DENIED without prejudice.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: September 28, 2016.
32
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