Free v. Federal Express Corporation et al
ORDER granting in part and denying in part 54 Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr on 03-07-2018. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
CHRISTI C. FREE,
FEDERAL EXPRESS CORPORATION,
Defendant Federal Express Corporation for sex discrimination and
retaliation in violation of 42 U.S.C. §§ 2000e, et seq. (“Title
Before the Court is Defendant’s May 31, 2017 Motion for
responded on July 7, 2017.
August 4, 2017.
(ECF No. 61.)
Defendant replied on
(ECF No. 64.)
For the following reasons, Defendant’s Motion for Summary
Judgment is GRANTED in part and DENIED in part.
(ECF No. 64-1 at 1161.)1
For the past 19 years, Plaintiff has
Unless otherwise noted, all pin cites for record citations are to the
“PageID” page number.
Global Operations Control Manager (“GOC Manager”) several times.
GOC Managers receive the same salary as Senior Managers.
benefits not available to Senior Managers.
GOC Managers receive
a “sick bank,” which allows them to earn paid time off that can
be used after sick leave days have been exhausted.
1 at 1183.)
(ECF No. 64-
GOC Managers can receive jump seat privileges,
which allow them to use Defendant’s planes for personal travel
opportunity to work four days a week, perform office work rather
than outside work, and supervise salaried employees rather than
(Id. at 1185-86.)
Plaintiff applied for GOC Manager in September 2010.
(Id. at 1162.)
Plaintiff applied for GOC Manager
again in February 2012.
(ECF No. 64-1 at 1165.)
interviewed but not hired.
(ECF No. 61-5 at 969-70.)
On March 8, 2013, Defendant posted another opening for a
(ECF No. 64-1 at 1167.)
On April 5, 2013, Plaintiff
was interviewed for the position.
(ECF No. 61-2 at 926.)
April 8, 2013, Plaintiff learned that she had not been chosen
for the position.
Rudy Cruz, a male, was hired
(ECF No. 64-1 at 1168)
(Id. at 931.)
On April 10, 2013, Plaintiff
filed an internal complaint of sex discrimination, alleging that
she had not been selected for the March 2013 GOC Manager opening
because of her gender.
(Id. at 1171.)
(ECF No. 61-2 at 914.)
On September 17, 2013, Plaintiff was interviewed for GOC
learned that she had not been selected.
Minnick, a female, was hired instead.
(Id. at 938.)
(Id. at 923.)
On June 15, 2015, Plaintiff filed a pro se Complaint in
(ECF No. 1.)
Plaintiff subsequently retained
counsel and, on January 4, 2016, filed an Amended Complaint.
(ECF No. 28.)
The Amended Complaint alleges that Defendant
complaint, in violation of Title VII.
(Id. at 79-80.)
On May 31, 2017, Defendant filed its Motion for Summary
(ECF No. 54; cf ECF No. 54-1.)
on July 7, 2017.
(ECF No. 61.)
Defendant replied on August 4,
(ECF No. 64.)
This Court has jurisdiction over Plaintiff’s federal-law
Under 28 U.S.C. §§ 1331, U.S. district courts have
original jurisdiction “of all civil actions arising under the
retaliated against Plaintiff in violation of Title VII.
No. 28 at 79-80.)
Those claims arise under the laws of the
III. Standard of Review
Under Federal Rule of Civil Procedure 56, a court shall
grant a party’s motion for 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.”
pointing out to the court that the nonmoving party, having had
sufficient opportunity for discovery, has no evidence to support
an essential element of her case.
See Fed. R. Civ. P. 56(c)(1);
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
Because the Court has jurisdiction over Plaintiff’s federal-law claims under
28 U.S.C. § 1331, it need not address Plaintiff’s contention that the Court
also has jurisdiction under 28 U.S.C. § 1343(4).
summary judgment, the nonmoving party must set forth specific
facts showing that there is a genuine dispute for trial.
Fed. R. Civ. P. 56(c).
“A genuine dispute exists when the
reasonable jury could return a verdict for her.”
EEOC v. Ford
Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (quotation marks
The nonmoving party must do more than simply “‘show
Adcor Indus., Inc. v. Bevcorp, LLC, 252 F. App’x 55,
Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
judgment motion by mere reliance on the pleadings.
v. Ford, 384 F. App’x 435, 443 (6th Cir. 2010) (citing Celotex
Corp., 477 U.S. at 324).
Instead, the nonmoving party must
return a verdict in her favor.
Stalbosky v. Belew, 205 F.3d
890, 895 (6th Cir. 2000); see Fed. R. Civ. P. 56(c)(1).
court does not have the duty to search the record for such
See Fed. R. Civ. P. 56(c)(3); InterRoyal Corp. v.
Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
Although summary judgment must be used carefully, it “is an
FDIC v. Jeff Miller Stables, 573 F.3d
A. Pattern and Practice Claim
discrimination based [on] gender in violation of 42 U.S.C. §
2000e et seq.”
(ECF No. 28 at 80.)
Defendant contends that
Plaintiff’s claim should be dismissed because “the Sixth Circuit
discrimination is not available to individual plaintiffs.”
misunderstands [Plaintiff’s] complaint. A ‘pattern and practice’
case is ‘not a separate and free-standing cause of action . . .
but is really merely another method by which disparate treatment
can be shown.’”
(ECF No. 61 at 877.)
The Sixth Circuit has held that “the pattern-or-practice
method of proving discrimination is not available to individual
Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565,
575 (6th Cir. 2004).
“[A] pattern-or-practice claim is focused
on establishing a policy of discrimination; because it does not
address individual . . . decisions, it is inappropriate as a
vehicle for proving discrimination in an individual case.”
Judgment is GRANTED on Plaintiff’s pattern-or-practice claim.
B. Gender Discrimination Claim
Plaintiff alleges that she was not hired for the March 8,
2013 GOC Manager position because of her gender.
78; ECF No. 61-2 at 922.)
(ECF No. 28 at
A plaintiff claiming discrimination
under Title VII “must establish ‘that the defendant had a
discriminatory intent or motive’ for taking a job-related
Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (internal
“A plaintiff can establish a claim of sex
discrimination under Title VII by producing either direct or
circumstantial evidence of discrimination.”
White v. Columbus
Metro. Hous. Auth., 429 F.3d 232, 238 (6th Cir. 2005) (citation
“[D]irect evidence is that evidence which, if believed,
requires the conclusion that unlawful discrimination was at
least a motivating factor in the employer's actions.”
v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921,
926 (6th Cir. 1999).
Such evidence “explains itself” and “does
not require the fact finder to draw any inferences to reach the
conclusion that unlawful discrimination was at least a
Gohl v. Livonia Pub. Schs. Sch. Dist., 836
F.3d 672, 683 (6th Cir. 2016).
Plaintiff has not offered direct
evidence of sex discrimination.
Where there is circumstantial evidence of discrimination,
the court follows the three-step, burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
First, Plaintiff must show that: (1) she belongs to a
protected class; (2) she applied for and was qualified for the
promotion; (3) she was considered for and denied the promotion
despite her qualifications; and (4) an individual of similar
qualifications who was not a member of the protected class
received the promotion.
White, 429 F.3d at 240.
meets this burden, the second step requires Defendant to respond
by articulating “a legitimate, non-discriminatory reason for its
decision” to not hire Plaintiff.
F.3d 576, 584 (6th Cir. 2009).
Upshaw v. Ford Motor Co., 576
If Defendant meets this burden,
the third step requires Plaintiff to “bear the burden of
rebutting this proffered reason by proving that it was pretext
designed to mask discrimination.”
Richardson v. Wal-Mart
Stores, Inc., 836 F.3d 698, 704 (6th Cir. 2016) (internal
1. Plaintiff’s Prima Facie Case of Sex Discrimination
The parties do not dispute that Plaintiff belongs to a
protected class because she is a woman.
satisfies the second, third, and fourth elements depend on
whether the GOC Manager position was a promotion from the Senior
Plaintiff argues that moving from Senior
Manager to GOC Manager is a promotion.
(ECF No. 61 at 861-63.)
Defendant argues that the move from Senior Manager to GOC
Manager is a “voluntary . . . down-bid from [Plaintiff’s]
current senior manager position.”
(ECF No. 54-1 at 172.)
To determine whether a change in positions is a promotion,
a court considers whether the new position confers “an increased
salary, significantly changed responsibilities, a more
distinguished title, or a gain in benefits.”
Vanderbilt Univ., 389 F.3d 177, 183 (6th Cir. 2004).
plaintiff's subjective impression concerning the desirability of
one position over another generally does not control with
respect to the existence of an adverse employment action.”
The GOC Manager position did not offer Plaintiff a higher
salary than her Senior Manager position.
that her salary would have remained the same if she had received
the GOC Manager position.
(ECF No. 61-2 at 921.)
argues that “she would have reached the maximum amount of pay
within [her] pay grade more quickly, which ultimately would have
resulted in more income” had she received the GOC Manager
(ECF No. 61 at 861.)
Defendant has offered evidence
that Plaintiff was already at the top of her pay grade when she
applied for GOC Manager in March 2013.
No. 64-1 at 1187.)
(ECF No. 64 at 1154; ECF
Becoming a GOC Manager would not have
increased Plaintiff’s salary.
The GOC Manager position would not have changed Plaintiff’s
Plaintiff argues that being a
GOC Manager would allow her to “deal with professional employees
instead of hourly employees and perform inside office work
rather than work outside in the weather.”
(ECF No. 61 at 862.)
Plaintiff’s sole support for this claim is her declaration.
(ECF No. 61-4 at 965.)
Although Plaintiff contends that she
would have preferred work as a GOC Manager, she has not
sufficiently explained why the alleged changes in job duties are
a “significant change” from her responsibilities as a Senior
The evidence is insufficient for a reasonable juror to
conclude that there was a significant change in responsibility.
Plaintiff has offered sufficient evidence that the GOC
Manager position offered a more distinguished title and a gain
The GOC Manager position had “a number of superior
qualifications, requiring special training and education.”
No. 61 at 861.)
GOC managers had to obtain a dispatch license,
which required employees to attend a six-week training course.
(ECF No. 64-1 at 1189.)
To demonstrate the prestige of the GOC
Manager position, Plaintiff presents evidence that several other
employees accepted lower pay grade GOC positions in return for
“superior professional advancement opportunities.”
(ECF No. 61
That evidence is sufficient to show that the GOC
Manager position would have been more than a “semantic change
in title” for Plaintiff.
Blackburn v. Shelby Cnty., 770 F.
Supp. 2d 896, 925 (W.D. Tenn. 2011).
The GOC Manager position also offered benefits that
Plaintiff did not receive in her Senior Manager position.
Managers received a “sick bank,” which allowed employees to
“earn credit” that could “be used after sick leave days [had
been] used,” and “jump seat privileges, which allowed GOC
employees to use the jump seat for personal travel.”
61 at 862.)
GOC managers also had “the ability to move freely
between a four or five-day schedule.”
Defendant argues that these perquisites are not benefits
because they would not have been available immediately to
Plaintiff when she started as a GOC Manager.
continue to work five days a week during the training period for
the GOC Manager position, and “would have to meet the necessary
qualifications and the necessary background” before she became
eligible for four-day work weeks.
(ECF No. 64 at 1154-55.)
Jump seat privileges “may be revoked.”
(Id. at 1154.)
Plaintiff would also be unable to use the sick bank because she
had not “exhausted her medical absence leave to a point she
would have been eligible to receive sick bank.”
Defendant’s arguments are not persuasive.
(Id. at 1154.)
become a GOC Manager, she would have been eligible to receive
Plaintiff was foreclosed from receiving
those benefits as a Senior Manager.
Although Plaintiff had not
exhausted her medical leave, the sick bank is a benefit.
ill-timed accident could have caused Plaintiff to deplete her
medical leave hours and rely on the sick bank.
may be revoked are privileges unless or until they are revoked.
Plaintiff has offered sufficient evidence to demonstrate a
genuine issue of material fact about whether the move from
Senior Manager to GOC Manager would have been a promotion.
GOC Manager position’s distinguished title and increased
benefits were significant advantages over Plaintiff’s Senior
Plaintiff can establish a prima facie case of
2. Defendant’s Legitimate, Non-Discriminatory Reasons for
The burden shifts to Defendant to articulate a legitimate,
non-discriminatory reason for the adverse employment action.
Upshaw, 576 F.3d at 585.
The defendant “need not prove a
nondiscriminatory reason” for not promoting Plaintiff, but “need
merely articulate a valid rationale.”
Hartsel v. Keys, 87 F.3d
795, 800 (6th Cir. 1996) (emphasis in original).
Defendant contends that it did not hire Plaintiff as a GOC
Manager because Plaintiff did not interview well.
(ECF No. 54-1
The Sixth Circuit has recognized that a refusal to
hire based on poor interview performance is a legitimate, nondiscriminatory reason for an adverse employment action.
v. Potter, 212 F. App'x 472, 479 (6th Cir. 2007); Toledo v.
Jackson, 207 F. App'x 536, 537 (6th Cir. 2006).
met its burden of articulating a legitimate, non-discriminatory
reason for failing to hire Plaintiff as GOC Manager.
The burden shifts to Plaintiff to prove pretext.
plaintiff can prove pretext by showing that the employer’s
proffered reason for not hiring her (1) has no basis in fact;
(2) did not actually motivate the employer's conduct; or (3) is
insufficient to warrant the challenged conduct.
White, 429 F.3d
In a case such as this where an employer fails to
promote, a plaintiff can establish pretext by showing that she
is (1) “a plainly superior candidate, such that no reasonable
employer would have chosen” the other applicant, or (2) “as
qualified as[,] if not better qualified than the successful
applicant, and the record contains other probative evidence of
Provenzano v. LCI Holdings, Inc., 663 F.3d
806, 815 (6th Cir. 2011) (internal quotations and citations
The burden to show pretext requires a plaintiff only
“to rebut, but not to disprove, the defendant's proffered
Griffin v. Finkbeiner, 689 F.3d 584, 593 (6th Cir.
2012) (internal quotations and citation omitted); see Chen v.
Dow Chemical Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009) (“At the
summary judgment stage, the issue is whether the plaintiff has
produced evidence from which a jury could reasonably doubt the
Plaintiff makes three arguments to show that Defendant’s
proffered reason is not credible.
First, Plaintiff alleges an
unfair interview process with “inconsistent [questions] between
management and non-management candidates” and a scoring process
that “was highly subjective and open to bias.”
(ECF No. 61 at
Second, Plaintiff argues that Defendant’s proffered
legitimate reason is a pretext because Plaintiff had
significantly more experience than the managers who were
(Id. at 871.)
Third, Plaintiff offers
several remarks by GOC leadership as evidence of discrimination.
Defendant does not contend that Plaintiff was not qualified
for the March 2013 GOC Manager position.
concedes that Plaintiff was interviewed for the position based
on her qualifications.
(ECF No. 61-2 at 926.)
jury could conclude that Plaintiff was as qualified, if not more
qualified, than the candidate chosen for the March 2013 GOC
Plaintiff has provided sufficient evidence from which a
reasonable jury could find that the interview panel scored
Plaintiff differently than male candidates.
For example, one
question asked candidates about their 5 and 10-year goals.
No. 64-1 at 1174.)
Despite an answer similar to the answers of
the male candidates, Plaintiff received a score of 2, but the
male candidates received scores of 4 (out of 5).3
(Id. at 1175.)
Defendant objects to Plaintiff’s contention, arguing that “Plaintiff’s
subjective beliefs, conjectures, and unfounded conclusions that there was no
right or wrong answer for the interview question and that her answer was
‘identical’ to the answer provided by the male candidates are wholly
insufficient to establish a claim of discrimination or retaliation as a
Plaintiff also offers evidence that the interview panel prescored candidates before the interview and gave lower scores to
(Id. at 1182.)
Subjective assessments are not determinative of
discrimination or bias when standing alone.
Browning v. Dep’t
of the Army, 436 F.3d 692, 697 (6th Cir. 2006).
“inherently subjective” assessments “deserve careful scrutiny”
because “[s]ubjective criteria . . . sometimes make it difficult
to distinguish between lawful and unlawful employment actions.”
Philbrick v. Holder, 583 F. App’x 478, 485 (6th Cir. 2014)
(citing Rowe v. Cleveland Pneumatic Co., Numerical Control,
Inc., 690 F.2d 88, 93 (6th Cir. 1982)); see Beck v. Buckeye
Pipeline Servs. Co., 501 F. App’x 447, 450 (6th Cir. 2012).
Evidence of Plaintiff’s less favorable treatment during the
interview process can support a finding that her gender was the
genuine reason for Defendant’s discriminatory action.
Evidence of discriminatory remarks by Defendant’s employees
also supports a finding of pretext.
The Sixth Circuit has
established a two-step process to analyze whether remarks are
matter of law.” (ECF No. 64-1.) Defendant has offered no evidence to rebut
Because the Court must construe the facts in the light most favorable
to Plaintiff, the nonmoving party, Plaintiff’s allegations are sufficient for
a jury to find that Defendant scored Plaintiff differently than other
candidates based on her gender. See Bazzi v. City of Dearborn, 658 F.3d 598,
602 (6th Cir. 2011).
indicative of discrimination.
The first step is to consider the
identity of the speaker and whether a reasonable jury could
conclude that the speaker was in a position to influence the
adverse employment action.
Ercegovich v. Goodyear Tire & Rubber
Co., 154 F.3d 344, 355 (6th Cir. 1998).
Here, the comments are
said to have been made by Paul Tronsor, the Vice President of
Although Tronsor was not part of Plaintiff’s interview
panel, he was the direct supervisor of one of the interviewers.
(ECF No. 61 at 857.)
This evidence is sufficient for a
reasonable jury to conclude that Tronsor “may have influenced
the decision” not to promote Plaintiff.
Ercegovich, 154 F.3d at
355; see Johnson v. The Kroger Co., 319 F.3d 858, 868 (6th Cir.
2003) (finding that “the statements of managerial-level
employees who have the ability to influence a personnel decision
are relevant” to a finding of discriminatory intent); Risch v.
Royal Oak Policy Dept., 581 F.3d 383, 393 (6th Cir. 2009)
(“Discriminatory statements made by individuals occupying
managerial positions can be particularly probative of a
discriminatory workplace culture.”).
The second step is to examine the substance of the remarks
to determine their relevance to a plaintiff's claim that an
impermissible factor motivated the adverse employment action.
Ercegovich, 154 F.3d at 355.
“Although . . . a direct nexus
between the allegedly discriminatory remarks and the challenged
employment action affects the remark's probative value, the
absence of a direct nexus does not necessarily render a
discriminatory remark irrelevant.”
[W]hen assessing the relevancy of an allegedly biased
remark where the plaintiff presents evidence of
multiple discriminatory remarks or other evidence of
pretext, we do not view each discriminatory remark in
isolation, but are mindful that the remarks buttress
one another as well as any other pretextual evidence
supporting an inference of discriminatory animus.
Id. at 356.
Plaintiff offers evidence of the following remarks:
Tronsor asked Plaintiff, “Why would you want to be part
of the all-male environment over here in GOC?”
61 at 874.)
Tronsor told a hiring manager not to hire Plaintiff for
the GOC Manager position.
Tronsor encouraged someone to hire a female employee
“because she is cute.”
Tronsor made an inappropriate comment to a female
employee about a dress she was wearing.
Tronsor asked a female employee to drink bourbon with him
at 5 a.m.
After she expressed hesitation, Tronsor
persuaded her to drink with him in her room by saying,
“it was no fun drinking alone.”
Although proof of these statements is circumstantial
evidence, the Sixth Circuit has said that “[c]ircumstantial
evidence establishing the existence of a discriminatory
atmosphere at the defendant's workplace in turn may serve as
circumstantial evidence of individualized discrimination
directed at the plaintiff.”
Ercegovich, 154 F.3d at 356; see
id. (holding that “evidence of a . . . discriminatory atmosphere
is not rendered irrelevant by its failure to coincide precisely
with the particular . . . timeframe involved in the specific
events that generated a claim of discriminatory treatment”).
The remarks “are not ‘conclusive proof’” of discrimination
against Plaintiff, but “they can still ‘add color’ to the
employer’s decisionmaking processes and to the influences behind
the actions taken with respect to the individual plaintiff.’”
Steeg v. Vilsack, No. 5:13-cv-00086, 2016 WL 6465915, at *2
(W.D. Ky. Oct. 28, 2016) (quoting Conway v. Electro Switch
Corp., 825 F.2d 593, 597 (1st Cir. 1987)).
Plaintiff has produced sufficient evidence contradicting
Defendant’s proffered reason for failing to hire her as a GOC
Manager to survive summary judgment.
Taken together, evidence
of Plaintiff’s qualifications for the GOC Manager position,
Defendant’s inconsistent interview scoring of female and male
candidates, and Defendant’s discriminatory remarks raise a
question of fact as to pretext.
See Risch, 581 F.3d at 392
(internal quotations omitted) (“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 claim surviving summary judgment.”).
Defendant’s Motion for Summary Judgment is DENIED on Plaintiff’s
claim of gender discrimination.
C. Retaliation Claim
Plaintiff alleges that Defendant did not hire her for the
July 5, 2013 GOC Manager position “in retaliation for making
complaints regarding gender discrimination in the hiring
(ECF No. 28 at 79; cf. ECF No. 61-2 at 923.)
Plaintiff offers circumstantial evidence of retaliation, her
claim is analyzed under the McDonnell Douglas framework
To establish a prima facie case of retaliation under Title
VII, a plaintiff must show that (1) she engaged in protected
activity under Title VII, (2) the defendant was aware of her
activity, (3) she was subjected to an adverse employment action
by the defendant, and (4) there was a causal connection between
the protected activity and the adverse employment action.
Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013).
The Court has already determined that Plaintiff suffered an
adverse employment action when she was not promoted to a GOC
It is undisputed that Plaintiff’s April 10,
2013 internal complaint was a protected activity.
It is also
undisputed that at least some of Defendant’s employees who
interviewed Plaintiff for the July 5, 2013 GOC Manager position
were aware of Plaintiff’s internal complaint alleging sex
(ECF No. 64-1 at 1180.)
The dispute is whether
Plaintiff can establish that there was a causal connection
between her internal complaint and the adverse employment
To show a causal connection, a plaintiff must adduce
sufficient evidence from which an inference can be drawn that
the adverse action would not have been taken had the plaintiff
not engaged in protected activity.
Nguyen v. City of Cleveland,
229 F.3d 559, 563 (6th Cir. 2000).
A causal link can be shown
“through knowledge coupled with a closeness in time that creates
an inference of causation. . . . However, temporal proximity
alone will not support an inference of retaliatory
discrimination when there is no other compelling evidence.”
Nguyen, 229 F.3d at 566 (internal quotations omitted).
On April 8, 2013, Plaintiff learned that she had not been
selected for the March 8, 2013 GOC Manager position.
10, 2013, she filed her internal complaint of discrimination.
(ECF No. 61-2 at 931; ECF No. 64-1 at 1171.)
Manager opening was posted in July 2013.
The next GOC
(ECF No. 61 at 866.)
Plaintiff was interviewed for the position on September 17,
(ECF No. 54-1 at 164.)
Plaintiff learned on September
26, 2013, that she had not received the GOC Manager position.
(ECF No. 61-2 at 938.)
That evidence is insufficient to establish a prima facie
case of retaliation.
More than five months had elapsed between
Plaintiff’s complaint, the protected activity in question, and
Defendant’s alleged retaliatory action.
Five months is
significantly longer than necessary for temporal proximity alone
to be sufficient to prove a causal connection.
See McNett v.
Hardin Cmty. Fed. Credit Union, 118 F. App’x 960, 965 (6th Cir.
2004) (finding causation when “only 13 days” separated protected
activity from adverse action); Shefferly v. Health Alliance Plan
of Michigan, 94 F. App’x 275, 285 (6th Cir. 2004) (stating that
“the passage of less than three weeks between [the employer's]
receipt of the charges and the adverse actions gives rise to an
inference of discrimination”); Cooper v. City of N. Olmsted, 795
F.2d 1265, 1272 (6th Cir. 1986) (“The mere fact that Cooper was
discharged four months after filing a discrimination claim is
insufficient to support an interference of retaliation.”).
Because a significant amount of time had elapsed between
Plaintiff’s internal complaint and the adverse employment
action, Plaintiff must offer other evidence of retaliatory
conduct to establish causality.
Little v. BP Exploration & Oil
Co., 265 F.3d 357, 365 (6th Cir. 2001).
Plaintiff has not
alleged or proven any other retaliatory conduct by Defendant.
Although Plaintiff has demonstrated that Dave Lusk, a member of
her interview panel for the July 5, 2013 GOC Manager position,
became aware of Plaintiff’s complaint, there is no evidence that
Lusk engaged in retaliatory conduct.
(ECF No. 64-1 at 1179.)
Plaintiff had applied for, but not received, a position as
GOC Manager three times before filing her internal complaint.
(ECF No. 61 at 857.)
Defendant had decided not to hire
Plaintiff as a GOC Manager just months before failing to hire
her for the July 5, 2013 position.
It would be unreasonable to
conclude that “the adverse action would not have been taken” had
Plaintiff not filed her complaint.
Nguyen, 229 F.3d at 563.
Plaintiff has not made a prima facie case for retaliation
in violation of Title VII.
Summary judgment is GRANTED on
Plaintiff’s claim for retaliation.
D. Punitive Damages
Defendant asks the Court to dismiss Plaintiff’s claim for
(ECF No. 54-1 at 185-86.)
that Plaintiff “offer[s] no evidence to support a conclusion
that [Defendant’s employees] possessed the requisite authority
because Defendant “has engaged in good faith efforts to comply
Punitive damages are recoverable in a Title VII action when
indifference to the federally protected rights of an aggrieved
42 U.S.C. § 1981a(b)(1).
A Title VII plaintiff
seeking punitive damages must establish: (1) the defendant acted
federally-protected rights, and (2) the defendant is liable for
the agent's actions.
Kolstad v. Am. Dental Ass'n, 527 U.S. 526,
establishing those elements, the defendant may avoid punitive
established that it is engaged in good faith efforts to comply
with Title VII.
The Court must consider whether Defendant has
adopted an anti-retaliation policy and “effectively publicized
and enforced its policy.”
Parker v. Gen. Extrusions, Inc., 491
F.3d 596, 603 (6th Cir. 2007).
“discrimination, harassment, and retaliation policies . . . are
included in the FedEx Employee Handbook, in the FedEx People
Manual, and are maintained on FedEx’s intranet.”
(ECF No. 61-2
has also maintained policies to prevent
(ECF No. 64-1 at 1202.)
Defendant has provided evidence that it enforces its antidiscrimination
following Plaintiff’s complaints.
(ECF No. 64-1 at 1178, 1180.)
The investigation appears to have been conducted in good faith.
(ECF No. 61-2 at 916, 918.)
This evidence reveals that, although Defendant’s employees
may have discriminated against Plaintiff, Defendant did not act
in reckless disregard of Plaintiff’s rights under Title VII.
Defendant engaged in good faith efforts to comply with Title
Defendant’s Motion for Summary Judgment on Plaintiff’s
claim for punitive damages is GRANTED.
For the foregoing reasons, Defendant’s Motion for Summary
Judgment is GRANTED in part and DENIED in part.
So ordered this 7th day of March, 2018.
/s/ Samuel H. Mays, Jr. _____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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