Wilson v. KTG, Kruger USA
Filing
51
ORDER granting in part and denying in part 32 defendant's Motion for Summary Judgment. Signed by Magistrate Judge Tu M. Pham on 9/24/2018. (Pham, Tu)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
JOSEPH WILSON,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
K.T.G. (USA), INC.,
Defendant.
16-cv-02508-TMP
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
Before
the
court
is
defendant
K.T.G.
(USA),
(“K.T.G.”) Motion for Summary Judgment. (ECF No. 32.)
Inc.’s
Plaintiff
Joseph Wilson filed a response in opposition, to which K.T.G.
filed
a
reply.
(ECF
Nos.
35,
36,
37.)
For
the
following
reasons, K.T.G.’s Motion for Summary Judgment is GRANTED in part
and DENIED in part.1
I.
This
Joseph
case
Wilson’s
arises
BACKGROUND
from
overtime
allegations
hours,
that
suspended
K.T.G.
him,
reduced
and
then
terminated his employment, all in retaliation for his filing
internal
1
grievances
and
charges
with
the
Equal
Employment
The parties have consented to have a United States magistrate
judge conduct all proceedings in this case, including trial, the
entry of final judgment, and all post-trial proceedings. (ECF
No. 19.)
Opportunity Commission (“EEOC”).
On February 7, 2011, Wilson,
who is African-American, started working as a Unitizer/Loader
Operator for K.T.G. (Pl’s. Resp. to Def’s. Statement of Material
Facts
(“PRDSMF”)
Shipping
¶
1,
Department
ECF
of
No.
36.)
K.T.G.’s
Wilson
paper
worked
mill
in
in
the
Memphis,
Tennessee, and was represented by the United Steelworkers Local
Union No. 9-566. (PRDSMF ¶¶ 1-2.)
According to K.T.G., loaders
are required to (1) complete certain documentation during the
course of their loading work; (2) record the time they spend
unloading product on a Loading Sign-In Log, which allows K.T.G.
to
track
Receiving
the
loaders
Report
once
assigned
a
to
container
each
load;
(3)
is
loaded,
complete
which
is
a
then
attached to the shipping manifest and enables K.T.G.’s customers
to
have
actually
accurate
information
received
by
the
regarding
the
warehouse;
and
product
(4)
that
fill
was
out
a
Productivity Report to document their activities when they are
not
unloading
product
from
trucks.
(PRDSMF
¶¶
5-12,
15.)
According to Anthony Dix’s deposition testimony, he informed the
Shipping
Department
employees
that
they
had
to
complete
the
Receiving Reports and that failure to do so would result in a
performance issue. (PRDSMF ¶ 14.) During Wilson’s employment,
K.T.G.
maintained
a
Powered
Industrial
Trucks
Policy
that
prohibited employees from using a cell phone for any purpose
while
operating
a
vehicle.
(PRDSMF
-2-
¶
18.)
K.T.G.
also
maintained an Electronic Equipment Usage Policy that prohibited
employees from using personal communication equipment such as
cell phones in operating areas during working hours. (PRDSMF ¶
19.)
Wilson
disputes
K.T.G.’s
claims
that
completion
of
the
Sign-In Logs, Receiving Reports, and Productivity Reports were
mandatory requirements for loaders.
He also disputes that the
Powered Industrial Trucks Policy and the Electronic Equipment
Usage Policy were applied uniformly to all employees. (PRDSMF ¶¶
5-6, 11, 13, 15, 18-19; Gray Decl. ¶ 9.)
K.T.G. has a Progressive Discipline Policy in place with
escalating
punishment
for
employee
misconduct:
for
the
first
instance of misconduct, the employee is orally reprimanded; for
the second, the employee receives a written warning; for the
third,
the
suspension;
employee
receives
and
the
for
(PRDSMF ¶¶ 20–25.)
a
final
fourth,
the
written
employee
warning
is
and
a
terminated.
Should the offense be deemed severe, K.T.G.
“reserves the right to proceed to any step in the Progressive
Discipline Policy.” (PRDSMF ¶ 26.)
During the first two years
of his employment as a loader, Wilson received only one writeup,
on
September
1,
2011,
for
violating
K.T.G.’s
attendance
policy. (Record of Discussion, ECF No. 37-6 at 21.)
On February 25, 2013, Anthony Dix, who is also AfricanAmerican,
supervisor
became
until
Wilson’s
June
new
24,
supervisor
2014,
-3-
the
and
date
remained
of
his
Wilson’s
termination.
(PRDSMF
¶¶
3-4.)
On
September
30,
2013,
Dix
verbally coached Wilson for failing to clean up a product spill
and placing pallets in front of the area of the spill, blocking
the spill from view. (PRDSMF ¶ 28; Record of Discussion, ECF No.
37-6 at 20.)
According to K.T.G., Wilson’s infraction came to
Dix’s attention after several employees complained to Dix that
Wilson had stored product in the wrong locations, had damaged
product, and had concealed damaged product. (PRDSMF ¶ 29; Dix
Dep. 40-41.)
According to Wilson, he told Dix that he was not
responsible for the product spill, and the employee who had
caused the spill was not disciplined. (PRDSMF ¶ 28; Wilson Dep.
203, 210.)
Wilson responded by filing an internal grievance with his
union on October 22, 2013 (“October 22 grievance”), in which he
stated that Dix had been bullying and harassing him and “has
made my job a hostile work environment” based on “my ethic [sic]
age.”
(ECF No. 32-3 at 78-79.)
Wilson claimed that Dix had
been steadily harassing him, “nit picking” his work performance,
and threatening to end his employment “because of he [said] she
[said].”
(Id.)
The
grievance
did
discrimination or harassment based on race.
not
mention
race
Dix was aware of
this grievance, and in an undated written response, he stated
that he
had
interviewed Wilson and that Wilson
“admitted to
storing product in an area, which concealed product that had
-4-
spilled, even though other employees advised him not to do so.
I wrote him up for performance and followed the same guidelines
for write ups with other employees.” (Dix’s Resp. to Wilson’s
October
22,
2013
Grievance,
ECF
No.
32-3
at
80.)
Wilson
disputes Dix’s account of this interview, claiming that he did
not
admit
to
stacking
other
product
in
front
of
the
spill.
(PRDSMF ¶ 30.)
On November 5, 2013, Dix issued a written warning to Wilson
for
talking
violation
on
of
his
cell
K.T.G.’s
phone
Powered
while
loading
Industrial
a
truck,
Equipment
in
Policy.2
(PRDSMF ¶¶ 31-32; Record of Discussion, ECF No. 37-6 at 19.)
Wilson claimed that he occasionally used his cell phone at work
as a calculator, and that he had dropped his phone and had just
picked it up when Dix saw him with it. (PRDSMF ¶ 31.)
day,
on
November
discrimination
with
6,
the
2013,
EEOC,
Wilson
Charge
filed
No.
a
The next
charge
of
490-2014-00128
(“November 6 charge”), in which he alleged as follows:
Since Anthony Dix became my supervisor he
consistently harasses and scrutinizes my work. On
October 2, 2013, I received a write up from Dix. On or
about October 29, 2013, I filed a grievance concerning
Dix’s harassing behavior. On November 5, 2013, I
received a written-up [sic] from Dix. I believe I have
2
Wilson claims that this incident actually occurred on November
1, 2013, and that he was not written up until November 5, 2013.
For purposes of ruling on this motion, the court finds this
discrepancy to be immaterial.
-5-
been discriminated against because of my race (Black)
and retaliated against in violation of Title VII[.]
(ECF No. 37-4 at 20.)3
On
November
7,
2013,
Wilson
filed
a
second
internal
grievance with his union (“November 7 grievance”), in which he
explained that he was holding the phone but was not using it
when Dix saw him with it, and he accused Dix of issuing the
write-up as “harassment” and “retaliation” for the October 22
grievance that he had filed. (ECF No. 32-3 at 81-82.)
Dix was
aware of the November 7 grievance, and in an undated written
response to the grievance, he wrote, “[d]uring the ISO Audit I
walked by the dock and noticed Joseph Wilson talking on the
phone while on his lift loading a trailer. . . . I wrote him up
and followed the same process for safety and performance issues
that
I
use
with
all
employees.”
(Dix’s
Resp.
to
Wilson’s
November 7, 2013 Grievance, ECF No. 32-3 at 83.)
Less than one week later, on November 13, 2013, the EEOC
mailed Wilson a letter notifying him of its dismissal of his
November 6 charge and his right to sue. (ECF No. 37-9 at 9.)
Wilson did not file a lawsuit within ninety days of receiving
this
right
to
sue
letter.
Dix
testified
that
he
had
no
knowledge of Wilson filing any EEOC charges during the time that
3
The parties do not dispute that Wilson’s first grievance was
filed on October 22, 2013, and not October 29 as referenced in
the charge. (Def.’s Resp. to Pl.’s Statement of Facts ¶ 4, ECF
No. 41.)
-6-
Wilson was employed by K.T.G. (PRDSMF ¶ 34.)
Ann Fleck, the
Human Resources Manager at K.T.G., testified at her deposition
that she was not aware that Wilson had filed the November 6
charge until she received a copy of the charge in late December
2013
or
vacation.4
early
January
(PRDSMF
¶
2014,
35.)
after
Wilson
she
had
disputes
returned
Dix’s
from
lack
of
knowledge regarding his EEOC charge, citing Dix’s knowledge of
the internal grievances as well as the declaration of one of his
co-workers, Michael Gray.
In his declaration, Gray states that
he was supervised by Dix “during a portion of my employment with
the Shipping Department at KTG,” he often observed Dix treating
employees
differently
from
one
another,
and
after
he
(Gray)
became aware that Wilson had filed a complaint with the EEOC, he
“noticed a remarkable difference in the way [Wilson] was treated
by Mr. Dix around and after this time.” (Gray Decl., ECF No. 3710 at 1.)
There
is
some
disciplined Wilson.
dispute
about
precisely
when
Dix
next
K.T.G. claims that the discipline occurred
on December 17, 2013, when Dix reviewed the shipping manifest
and the Loading Sign-In Log, and determined that Wilson was
responsible for a load that did not have a Receiving Report.
4
The November 6 charge was addressed to “Joseph Kruger” in
Montreal, where Kruger resided, and was subsequently re-routed
via inter-company mail to the Human Resources Department.
(PRDSMF ¶ 36.)
-7-
(PRDSMF
¶
40.)
According
to
K.T.G.,
Dix
issued
a
written
warning reprimanding Wilson for failing to complete a Receiving
Report on December 9, 2013, and punished him with one day’s
suspension
without
pay
to
take
place
on
December
22,
2013.
(Record of Discussion, ECF No. 37-6 at 18; PRDSMF ¶¶ 40, 55-56;
Def.’s Resp. Pl.’s Statement of Facts (“DR”) ¶¶ 16–17, ECF No.
41
at
16.)
Wilson,
on
the
other
hand,
claims
that
Dix
reprimanded and suspended him on December 9, 2013, that Dix sent
him home that same day without informing him that he was being
suspended, that Dix did not complete the necessary paperwork
until December 17, and that the suspension lasted for nearly one
week. (PRDSMF ¶ 40.)
He also claims that Receiving Reports were
not mandatory. (PRDSMF ¶¶ 42-43; Wilson Dep. 195; Gray Decl. ¶
9.)
Wilson filed a third internal grievance with the union on
January 8, 2014 (“January 8 grievance”), in which he stated that
he did not know he was supposed to fill out the Receiving Report
and that Dix unjustly suspended him.5
(ECF No. 32-3 at 84.)
Dix
was aware of the January 8 grievance, and in an undated written
response, stated that Wilson had been previously told to fill
out
the
Receiving
Reports
because
they
were
mandatory,
that
Wilson had completed reports previously and then stopped, and
5
Although the third grievance is dated December 31, 2013, the
grievance was not filed until January 8, 2014, apparently
because Dix was on vacation.
-8-
that
Dix
suspended
Receiving
Report.
Wilson
(Dix’s
after
Resp.
learning
to
of
Wilson’s
the
incomplete
January
8,
2014
Grievance, ECF No. 32-3 at 85.)
In January 2014, Fleck became aware through Wilson’s thenattorney that Wilson had concerns regarding his suspension and
overtime
hours.
(PRDSMF
¶
44.)
Wilson
claimed
that
he
was
suspended for not completing a Receiving Report even though his
co-workers
who
similarly
had
not
completed
were not suspended. (PRDSMF ¶ 45.)
Receiving
Reports
He also alleged that Dix
retaliated against him for filing the November 6 charge by not
giving him any overtime work. (PRDSMF ¶ 46.)
Wilson claimed
that prior to filing the November 6 charge, he worked twenty
hours of overtime per week, but after filing the charge, Dix
assigned
him
no
overtime
work.
(PRDSMF
¶
47.)
Fleck
investigated Wilson’s suspension by reviewing Receiving Reports,
the Loading Sign-In Log, time records, and payroll records, and
by interviewing Wilson and Dix. (PRDSMF ¶ 48.)
Receiving
prior
Report
to
his
that
Wilson
suspension.
had
completed
(PRDSMF
¶
Fleck reviewed a
some
four
49.)
months
During
her
investigation, Fleck also verified that Daisie Smith, Celeste
Gray,
and
completing
reports
as
Karen
Phillips,
Receiving
required.
whom
Reports,
(PRDSMF
Wilson
were
¶¶
in
51-53.)
claimed
fact
were
not
completing
the
Smith,
Phillips are all African-American. (PRDSMF ¶ 52.)
-9-
Gray,
and
Based on her
investigation, Fleck could not corroborate Wilson’s allegation
that Dix had retaliated or discriminated against Wilson. (PRDSMF
¶ 57.)
Fleck also investigated Wilson’s claim of denied overtime.
(PRDSMF ¶ 58.)
She reviewed Wilson’s time card and payroll
records, and reviewed time card records and payroll records of
the three other loaders who reported to Dix: Albert Harris,
Jarmenn Strong, and Karen Phillips, all of whom are AfricanAmerican.
(PRDSMF
¶¶
60-61.)
Wilson,
Harris,
Strong,
and
Phillips were scheduled to work in “four on, four off” shifts.
This meant that they would work two day shifts from 7:00 a.m. to
7:00 p.m. and two night shifts from 7:00 p.m. to 7:00 a.m., and
would
then
receive
four
days
off.
automatically had overtime “built in.”
assigned a relief person.
The
rotating
shifts
Each shift employee was
If there was a vacancy, such as a
scheduled vacation or other absence that provided an overtime
opportunity, the relief person who was currently on their four
days off would be assigned overtime.
If the relief person did
not want the overtime, any qualified employee could sign up for
the
overtime
slot.
If
an
employee
did
not
assigned overtime and wanted to offer it to
want
his
or
her
other qualified
employees, Dix would place a blank line next to each employee’s
name on a sheet that was placed on the bulletin board to allow
other employees to write in their name and to volunteer for the
-10-
overtime.
overtime
Qualified employees did not have to request this
from
Dix;
they
simply
signed
up
for
the
overtime.
Wilson knew that he could sign up to get overtime hours from
other
employees
According
to
who
did
the
K.T.G.,
not
want
to
assignment
work
of
overtime
overtime
was
hours.
system-
driven, and Dix did not have any control over how the overtime
was assigned to employees. (PRDSMF ¶ 67.)
According to Wilson,
Dix had discretionary authority to assign additional overtime
and make the schedule. (PRDSMF ¶ 67.)
Wilson’s overtime hours
fluctuated from week to week, and he did not have the same
number
of
overtime
approximate
hours
three-month
from
period
week
to
preceding
week.
the
During
filing
of
the
the
November 6 charge, Wilson’s overtime hours fluctuated from zero
hours to twenty-four hours per work week.
After he filed the
November 6 charge, Wilson continued to receive overtime hours,
although
according
to
Wilson,
the
number
of
hours
was
substantially less. (PRDSMF ¶¶ 62-76.)
Specifically, the overtime hours that Wilson worked during
the August 2013 to December 2013 time period were as follows:
Pay
Pay
Pay
Pay
Pay
Pay
Pay
Pay
Pay
period
period
period
period
period
period
period
period
period
ending
ending
ending
ending
ending
ending
ending
ending
ending
8/4/2013 – overtime of 16.38 hours
8/11/2013 – overtime of 16.25 hours
9/15/2013 – overtime of 24.37 hours
9/22/2013 – overtime of 16.67 hours
9/29/2013 – overtime of 16.65 hours
10/6/2013 – overtime of 25.72 hours
10/13/2013 – overtime of 7.83 hours
10/20/2013 – overtime of 4.08 hours
10/27/2013 – overtime of 4.08 hours
-11-
Pay
Pay
Pay
Pay
period
period
period
period
ending
ending
ending
ending
11/10/2013 – overtime of 8.42 hours
11/17/2013 – overtime of 8.13 hours
12/8/2013 – overtime of 4.15 hours
12/15/2013 – overtime of 14.58 hours
(Pl.’s Statement of Add’l Material Facts ¶¶ 11-12; Dix Dep. Ex.
8.)6
Based on her investigation, Fleck was unable to find any
evidence corroborating Wilson’s allegation that Dix denied him
overtime hours after he filed his November 6 charge.7 (PRDSMF ¶
79.)
6
Pay periods during this August to December 2013 time period in
which Wilson did not work a full forty-hour work week are not
included in this list.
7
In support of its Motion for Summary Judgment, K.T.G. has filed
a declaration signed by Fleck, in which she states that between
November 2013 and January 2014, several of the plant’s
converting lines were down, which meant that converting
employees
were
available
to
provide
coverage
to
other
departments, such as the Shipping Department, on a straight-time
basis. (Fleck Decl. ¶ 19.)
The availability of the converting
employees during this time period reduced overtime opportunities
for employees in the Shipping Department. (Id.)
Additionally,
in the year prior to November 6, 2013, one of the shipping
employees was on medical leave, which resulted in significantly
more opportunities for Wilson and other employees to work
overtime. Upon this employee’s return to work, there were less
overtime opportunities. (Fleck Decl. ¶ 20.)
Wilson challenges
the credibility of Fleck’s declaration because she did not
discuss these alleged grounds for the reduction in his overtime
hours when she was deposed, nor did she offer these additional
reasons when she responded to the EEOC’s investigation on May
28, 2014. The court, however, may not make credibility
determinations
when
deciding
a
summary
judgment
motion.
Therefore, it is appropriate for the court to consider these
explanations for the change in Wilson’s overtime hours contained
in Fleck’s declaration.
-12-
On March 24, 2014, Wilson filed a second charge with the
EEOC, Charge No. 490-2014-00232 (“March 24 charge”), in which he
alleged as follows:
On November 6, 2013, I filed a charge of
discrimination with the [EEOC] and the Tennessee Human
Rights Commission, alleging race discrimination and
retaliation against Kruger USA. (attached) I informed
my supervisor that I had filed such charges soon
thereafter. Prior to filing my November 6, 2013,
Charge of Discrimination with the EEOC/THAA, I was
receiving some 20 hours of overtime work per week.
However, after my supervisor, Anthony Dix, learned
that I had filed my November 6, 2013 Charge of
Discrimination, he would not assign me anymore
overtime work, although my co-workers continued to
receive as much or more overtime work as prior to my
filing my EEOC/THAA Charge of Discrimination on
November 6, 2013. I believe that I have been denied
overtime hours since filing my November 6, 2013 Charge
of Discrimination in retaliation for filing such
Charges. Mr. Dix has discriminated against me in other
ways, including me an [sic] unwarranted unpaid week
suspension since he learned about the November 6,
2013, Charge of Discrimination. Since my November 6,
2013, Charge of Discrimination was based on race
discrimination and retaliation; I believe I have been
discriminated against because of my race (Black) and
retaliated in violation of Title VII[.]
(ECF No. 37-9 at 2.)
The EEOC mailed Fleck the notice of the
March 24 charge on March 27, 2014. (Id. at 1.)
On May 28, 2014,
K.T.G. mailed a position statement to the EEOC responding to the
March 24 charge. (ECF No. 37-5 at 13-17.)
On June 24, 2014, Fleck, Dix, and union representatives met
with Wilson to discuss three work incidents that had occurred
that month. (PRDSMF ¶ 108.)
9, 2014. (PRDSMF ¶ 111.)
The first incident occurred on June
According to Dix, on that day, Wilson
-13-
unloaded and stacked pallets in an improper manner by stacking
the pallets two high in an area where the pallets should have
been stacked four high. (PRDSMF ¶¶ 82–87, 111; Dix Dep. 96:1125, 124:13-25.)
Wilson denied stacking the pallets incorrectly
and disputed the photographs of the pallets used by Fleck to
support
the
227:14.)
infraction.
(PRDSMF
¶
82;
Wilson
Dep.
227:10–
However, Wilson does not dispute that Odie Powell, the
Union Shop Steward and Wilson’s co-worker, stated he observed
Wilson stacking product incorrectly several times, by stacking
boxes
two
high
incorrectly
and
stacked
then
stacking
product
to
hide
boxes
in
the
front
of
the
boxes
that
he
had
stacked incorrectly. (PRDSMF ¶ 84; Powell Decl. ¶¶ 4-5, 7.)
The second incident occurred on June 12, 2014. (PRDSMF ¶
114.)
According to Leroy Campbell (Wilson’s Team Leader and who
is also African-American), Wilson on that day refused to follow
orders and did not perform enough hours of work. (PRDSMF ¶¶ 88–
92;
Campbell
Specifically,
Decl.
Campbell
¶¶
5–16,
ECF
reported
that
No.
he
32-3
had
at
asked
306-07.)
Wilson
to
unload a trailer and that Wilson refused, stating that he was
going
on
break.
(PRDSMF
¶
90.)
After
returning
from
break,
Wilson did not perform any other work and instead drove around
and spoke to co-workers until his shift ended. (PRDSMF ¶ 92.)
Dix reviewed the Loading Sign-In Log and reported to Fleck that
the log showed Wilson only performed three hours and 50 minutes
-14-
of work during his eight-hour shift on June 12. (PRDSMF ¶ 95.)
On June 18, 2014, Fleck met with Campbell in person as part of
her investigation regarding his complaint. (PRDSMF ¶ 96.)
In
addition to the information discussed above, Campbell told Fleck
that on June 12, he did not know where Wilson was for “a couple
of hours” after his first load, and when Campbell later saw him
and asked where he had been, Wilson did not respond. (PRDSMF ¶
99.) Wilson asserts that he had taken an authorized break and
that he had performed more work on that day than what Campbell
conveyed to Fleck.
However, he does not dispute that the logs
showed he unloaded trucks for a total of three hours and 50
minutes. (PRDSMF ¶¶ 93, 95; Wilson Dep. 229:19–230:2.)
The third incident occurred on June 23, 2014. (PRDSMF ¶
119; Fleck Decl. ¶ 31, ECF No. 32-3 at 145-49.)
According to
“converting leadership,” on that day Wilson was observed in the
break room at 6:00 a.m. not doing any work, and when he was
instructed to get back to work, he “disappeared.” (PRDSMF ¶ 119;
Fleck Decl. ¶ 31.)
later met with
Wilson does not dispute this claim.
General Manager
Fred Ceruti,
Fleck
who is African-
American, to review the findings of her investigation regarding
Wilson’s
authority
performance
to
make
problems.
Ceruti
the
decision
final
termination. (PRDSMF ¶ 105.)
these
violations
could
have
delegated
to
regarding
her
the
Wilson’s
According to K.T.G., any one of
resulted
-15-
in
Wilson’s
termination
because
he
was
at
the
final
written
warning
step
and
one
infraction away from termination. (PRDSMF ¶ 120.)
At
Wilson
the
June
24
for
these
meeting,
workplace
Fleck,
instead
violations,
of
terminating
offered
him
the
opportunity to sign a “last chance” agreement, which would have
allowed Wilson to keep his job. (PRDSMF ¶¶ 123-126; Wilson Dep.
253:4–253:22.)
Wilson refused to sign the agreement because he
did not agree with how it characterized his conduct. (PRDSMF ¶¶
124–127;
Wilson
employment
on
Dep.
that
125:12–125:24.)
same
day.
K.T.G.
(PRDSMF
¶
terminated
129.)
Wilson
his
was
replaced by Howard Cosby, who is African-American. (PRDSMF ¶
133.)
On June 26, 2014, Wilson amended his second EEOC charge to
include a claim that his termination was also in retaliation for
his November 6 charge. (ECF No. 37-6 at 14.)
The EEOC issued
Wilson another right to sue letter, and on June 24, 2016, he
filed the instant lawsuit against K.T.G. under Title VII of the
Civil Rights Act of 1964. (ECF No. 1 at 1, 6.)
He initially
raised Title VII claims of racial discrimination and retaliation
in the form of overtime reduction, suspension, and termination.
However,
Wilson
discrimination
has
claim,
since
voluntarily
leaving
only
(Pl’s. Resp. 1 n.1, ECF No. 35.)
judgment.
-16-
the
dismissed
the
retaliation
racial
claims.
K.T.G. now moves for summary
II.
A.
ANALYSIS
Standard of Review
Federal Rule of Civil Procedure 56(a) provides that “the
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant
is
entitled
to
judgment
as
a
matter
of
law.”
When
assessing whether to grant summary judgment, a judge “may not
‘make credibility determinations or weigh the evidence,’ because
those
are
‘jury
functions.’”
Jordan
v.
Kohl's
Dep't
Stores,
Inc., 490 F. App'x 738, 741 (6th Cir. 2012) (citation omitted)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)).
evidence
Instead,
presents
the
a
judge
must
sufficient
determine
disagreement
“whether
to
the
require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Block v. Meharry Med.
Coll., 723 F. App’x 273, 277 (6th Cir. 2018) (quoting Anderson,
477 U.S. at 251-52).
“In resolving a summary judgment motion,
th[e] court must view the evidence in the light most favorable
to [the nonmovant].” Huckaby v. Priest, 636 F.3d 211, 216 (6th
Cir. 2011) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).
Title
VII
prohibits
employers
from
“discriminat[ing]
against . . . [an employee] . . . because [the employee] has
opposed any . . . unlawful employment practice . . . or because
-17-
[the employee] has made a charge” that the employer has engaged
in
an
unlawful
Unlawful
employment
employment
practice.
practices
42
under
U.S.C.
Title
VII
§
2000e–3(a).
include
any
actions taken on the basis of race, color, religion, sex, or
national origin that “discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment[.]” 42 U.S.C. § 2000e–2(a)(1).
being
left
undefined
by
the
statute,
“The term ‘oppose,’
carries
its
ordinary
meaning, . . . ‘[t]o resist or antagonize [. . .]; to contend
against; to confront; resist; withstand.’” Crawford v. Metro.
Gov't of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 276
(2009) (citing Webster's New International Dictionary 1710 (2d
ed. 1957)).
of
formal
complaints
“The opposition clause protects not only the filing
discrimination
to
discriminatory
charges
management
employment
and
with
the
EEOC,
but
also
less
formal
protests
of
practices.”
Laster
v.
of
City
Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (citing Trujillo v.
Henniges Auto. Sealing Sys. N. Am., Inc., 495 F. App’x 651, 655
(6th Cir. 2012)).
A Title VII retaliation claim can be established “either by
introducing
direct
circumstantial
evidence
evidence
that
of
retaliation
would
support
or
an
by
proffering
inference
of
retaliation.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d
531, 538 (6th Cir. 2008).
“Direct evidence is that evidence
-18-
which,
if
believed,
requires
no
inferences
to
conclude
that
unlawful retaliation was a motivating factor in the employer’s
action.” Id. at 543-44 (citing Abbott v. Crown Motor Co., 348
F.3d 537, 542 (6th Cir.
2003);
Christopher v. Stouder Mem'l
Hosp., 936 F.2d 870, 879 (6th Cir. 1991)).
Because Wilson does
not have direct evidence of retaliation and instead relies only
upon circumstantial evidence,
applies.
the
McDonnell
Douglas
framework
Jordan, 490 F. App'x at 742.
Under McDonnell Douglas, Wilson bears the initial burden of
establishing a prima facie case of retaliation by showing (1) he
engaged
in
a
protected
activity,
(2)
K.T.G.
knew
about
the
protected activity, (3) K.T.G. subsequently acted in a manner
that was “materially adverse” to him, and (4) there was a causal
connection
between
his
protected
activity
and
K.T.G.’s
materially adverse act. Laster, 746 F.3d at 730 (quoting Jones
v.
Johanns,
264
F.
App’x
463,
466
(6th
Cir.
2007)
(citing
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68
(2006))).
“The Supreme Court in Burlington Northern . . . made
clear that the scope of Title VII's retaliation provision is
broader
than
that
of
Title
VII's
discrimination
provision.”
Hawkins v. Anheuser–Busch, Inc., 517 F.3d 321, 345 (6th Cir.
2008).
“In contrast to Title VII's discrimination provision,
the ‘adverse employment action’ requirement in the retaliation
context is not limited to an employer's actions that solely
-19-
affect the terms, conditions or status of employment, or only
those acts that occur at the workplace.” Id. (citing Burlington
N., 548 U.S. at 64). “The retaliation provision instead protects
employees from conduct that would have ‘dissuaded a reasonable
worker from making or supporting a charge of discrimination.’”
Id. (citing Burlington N., 548 U.S. at 68); see also Taylor v.
Geithner,
703
F.3d
328,
336
(6th
Cir.
2013)
(“Further,
the
Supreme Court has recognized that actions typically construed as
nonmaterial could rise to the level of an adverse employment
action when considered in context[.]”).
With regard to the
causation prong, Title VII retaliation claims “must be proved
according to traditional principles of but-for causation,” which
“requires proof that the unlawful retaliation would not have
occurred
in
the
absence
of
the
alleged
wrongful
action
or
actions of the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 360 (2012).
If
Wilson
meets
his
prima
facie
case
requirement,
“the
burden of production shifts to the defendant to articulate a
legitimate,
nondiscriminatory
reason
for
its
employment
decision.” Melton v. U.S. Dep't of Labor, 373 F. App'x 572, 576
(6th Cir. 2010) (quoting Yellow Freight Sys., Inc. v. Reich, 27
F.3d 1133, 1138 (6th Cir. 1994)).
reason,
Wilson
must
then
show
Should K.T.G. provide such a
that
K.T.G.’s
reason
was
pretextual. See O'Donnell v. City of Cleveland, 838 F.3d 718,
-20-
726–27 (6th Cir. 2016).
To raise a genuine issue of fact as to
pretext, a plaintiff must show that (1) the proffered reason had
no factual basis, (2) the proffered reason did not actually
motivate the defendant’s action, or (3) the proffered reason was
insufficient
to
motivate
the
action.
Cicero
v.
Auto., Inc., 280 F.3d 579, 589 (6th Cir. 2002).
Borg-Warner
Wilson can
defeat summary judgment only if his evidence is sufficient to
“create a genuine dispute at each stage of the McDonnell-Douglas
inquiry.” Macy v. Hopkins Cty. Sch. Bd. of Educ., 484 F.3d 357,
364 (6th Cir. 2007) (internal quotations and citations omitted).
“Although the burden of production shifts between the parties,
the
plaintiff
process.”
B.
bears
the
burden
of
persuasion
through
the
Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007).
Retaliation Based on October 22 Grievance
As an initial matter, K.T.G. argues that Wilson cannot rely
upon
his
October
22
retaliation claims.
grievance
as
a
basis
for
any
of
his
K.T.G. contends that any such claim would
be time barred because the October 22 grievance was raised in
the November 6 charge, the EEOC sent Wilson his right to sue
letter on this charge on November 13, 2013, he had ninety days
to file a lawsuit based on that charge, and he did not file the
present lawsuit until June 24, 2016.
A
before
plaintiff
must
filing
discrimination
a
first
exhaust
-21-
administrative
lawsuit
under
Title
remedies
VII
in
federal court. Randolph v. Ohio Dep't of Youth Servs., 453 F.3d
724, 731 (6th Cir. 2006).
requirement,
the
In order to satisfy this exhaustion
plaintiff
must
first
file
a
charge
of
discrimination before the EEOC or corresponding state agency.
Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001).
If
the EEOC elects not to prosecute the plaintiff's discrimination
charge, it must issue a notice of right to sue to the plaintiff.
29 C.F.R. § 1601.28(b). Upon receipt of the notice of right to
sue, the plaintiff has ninety days in which to bring a federal
action alleging a violation of Title VII. 42 U.S.C. § 2000e–
5(f)(1).
This
ninety-day
requirement
is
a
timing
requirement
similar to a statute of limitations and serves as a bar to the
plaintiff's
lawsuit
when
the
complaint
is
not
timely
filed.
Truitt v. Cty. of Wayne, 148 F.3d 644, 646-47 (6th Cir. 1998).
A complaint in a Title VII case is “limited to the scope of
the EEOC investigation reasonably expected to grow out of the
charge of discrimination.” Tipler v. E. I. duPont deNemours &
Co., 443 F.2d 125, 131 (6th Cir. 1971).
plaintiff
may
bring
a
lawsuit
for
a
This means that a
claim
that
was
not
explicitly alleged in an EEOC charge only if the “facts related
with
respect
investigate
Worthington
to
a
the
charged
different,
Cylinders,
615
claim
would
prompt
uncharged
claim.”
F.3d
490
-22-
481,
(6th
the
EEOC
Spengler
Cir.
to
v.
2010)
(quoting Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 380
(6th Cir. 2002)).
The
November
6
charge
alleged
that
Dix
had
engaged
in
racial discrimination and retaliation based on the filing of
Wilson’s
October
22
grievance
(erroneously
charge as being filed on October 29).
identified
in
the
However, the charge made
no reference to a reduction or denial of overtime hours, which
is not surprising given the brief two-week time period between
the
filings
charge.
of
the
October
22
grievance
and
the
November
6
In his November 7 grievance, Wilson made no mention of
denial of overtimes hours, and instead focused on Dix writing
him up for the cell phone policy infraction as the retaliatory
conduct, further indicating that Wilson was not alleging denial
of overtime hours when he filed his November 6 charge.
And, the
suspension in December (obviously) had not yet occurred when he
filed the November 6 charge, and therefore Wilson could not have
alleged that the suspension was in retaliation for the October
22 grievance until he later filed his March 24 charge.
Based on
the narrow scope of the allegations in the November 6 charge,
the court finds that the retaliation claims that stem from the
filing of the October 22 grievance are not time barred.
K.T.G. also argues that Wilson cannot claim Dix retaliated
against him for filing
March
24
charge
the
repeatedly
October 22 grievance
claimed
-23-
that
Dix
because
denied
the
Wilson
overtime hours and suspended him specifically in retaliation for
filing
the
November
October 22 grievance.
6
charge,
without
ever
mentioning
the
The court disagrees with K.T.G.’s overly
restrictive reading of the March 24 charge.
While the March 24
charge did not reference the October 22 grievance, the November
6 charge did, and as a result, the EEOC investigation into the
March 24 charge would reasonably have been expected to include
Wilson’s reason
for filing the November 6 charge, i.e.,
October 22 grievance.
a
certain
level
of
notice and gives
the
The requirement that an EEOC charge have
specificity
“serves
to
put
employers
on
the EEOC the opportunity to investigate or
settle the dispute.” Golden v. Mirabile Inv. Corp., 724 F. App’x
441, 445 (6th Cir. 2018).
K.T.G. was aware of the October 22
grievance when it was filed, Dix submitted a written response to
the
grievance,
and
the
November
6
charge
and
November
7
grievance both referenced Dix’s alleged retaliation based on the
October 22 grievance.
Thus, a retaliation claim based on the
October 22 grievance could reasonably have been expected to grow
out of the March 24 charge, and as a result, the court finds
that Wilson may bring his retaliation claims based on the filing
of the October 22 grievance.
C.
Prima Facie Case
1.
Protected activity
-24-
K.T.G. does not dispute that the filing of EEOC charges and
internal grievances qualify as protected activities.
Therefore,
Wilson has satisfied the first prong of his prima facie case.
2.
As
Knowledge of the protected activity
to
the
second
prong,
whether
K.T.G.
knew
about
the
protected activity, K.T.G. concedes that it (through Dix) knew
about the three grievances at around the time they were filed.
However, Dix testified that he did not know that Wilson had
filed either of the EEOC charges until after Wilson’s employment
was terminated, and Fleck testified that she did not learn about
the November 6 charge until sometime in late December 2013 or
early January 2014.
Based on this testimony, K.T.G. argues that
Wilson cannot rely upon the November 6 charge as a protected
activity to support his claims of retaliation for the reduction
in
overtime
response,
hours
Wilson
and
his
argues
suspension
that
Dix
in
must
December
have
2013.
known
about
In
the
November 6 EEOC charge because he was aware of the multiple
grievances that had been filed and Wilson noticed “increased
scrutiny” from Dix after the charge was filed.
Wilson also
cites to the Gray declaration, which states that Gray noticed “a
remarkable difference in the way [Wilson] was treated by Mr. Dix
around and after” the time that Gray learned Wilson had filed an
EEOC charge. (Gray Decl. ¶ 8.)
on
this
point,
however,
is
Gray’s two-sentence declaration
completely
-25-
lacking
in
important
factual details, and in any event, his generalized observations
regarding how Dix treated Wilson fall well short of creating a
triable
issue
on
whether
Dix
knew
about
the
EEOC
charge.
Wilson’s assertion that Dix’s knowledge of the charge can be
inferred from his increased scrutiny of Wilson is speculative,
at best.
No reasonable jury could find that Dix or Fleck knew
about the November 6 charge before Wilson’s alleged reduction in
overtime
hours
and
his
suspension.8
See
Vander
Boegh
v.
EnergySolutions, Inc., 536 F. App'x 522, 530 (6th Cir. 2013)
(“The decisionmaker’s knowledge of the protected activity is an
essential
element
of
the
prima
facie
case
of
unlawful
retaliation.”) (quoting Frazier v. USF Holland, Inc., 250 F.
App’x 142, 148 (6th Cir. 2007)).
3.
Materially adverse action
K.T.G. concedes that Wilson’s suspension in December 2013,
regardless of whether it was for one day or one week, qualifies
as
a
materially
adverse
action.
However,
it
contends
that
Wilson fails to meet the third prong of his prima facie case
with regard to his refusal to sign the last chance agreement
(which resulted
in his
termination)
and to the reduction in
overtime hours.
8
Because Fleck eventually became aware of the November 6 charge,
and she was the decisionmaker who terminated Wilson, the
November 6 charge qualifies as a protected activity for purposes
of Wilson’s claim of retaliatory termination.
-26-
With respect to its first argument, K.T.G. argues that it
did not subject Wilson to a materially adverse action because
Wilson,
by
refusing
to
sign
the
last
“effectively ended his own employment.”
19, ECF No. 32-1.)
chance
agreement,
(Def’s. Mot. Summ. J.
In the context of Title VII retaliation
claims, materially adverse acts are those that “might well deter
a reasonable employee from complaining about discrimination.”
Laster, 746 F.3d at 731 (quoting Burlington N., 548 U.S. at 69).
Under the present facts, a reasonable jury could find that by
presenting Wilson with the last chance agreement, particularly
one
that
Wilson
claims
contained
inaccurate
facts,
K.T.G.
engaged in conduct that might deter a reasonable employee from
complaining
about
discrimination.
See
Jackson
v.
SelectTech
Servs. Corp., No. 3:09-CV-245, 2012 WL 252728, at *12 n.8 (S.D.
Ohio Jan. 26, 2012) (“Threats of termination and ‘last chance’
agreements that move an employee decidedly closer to termination
could very well dissuade a reasonable employee from making a
charge of discrimination.”); Coleman v. Bronson Methodist Hosp.,
No. 4:05-CV-141, 2006 WL 3391404, at *7, *11 (W.D. Mich. Nov.
21,
2006)
terminate
(finding
an
that
employee
it
who
was
a
refused
materially
to
sign
adverse
a
last
act
to
chance
agreement); Miller v. Rudd, No. C2-97-317, 2001 WL 242588, at
*6, *18 (S.D. Ohio Feb. 6, 2001) (same).
-27-
Thus, Wilson has
satisfied the third prong of his prima facie case as to his
retaliatory termination claim.
K.T.G.’s second argument presents a closer question. It is
undisputed that Wilson’s overtime hours fluctuated from week to
week, and that prior to the filing of the grievances in late
October and early November, Wilson’s payroll records show weeks
in
which
he
received
no
overtime
hours.
However,
it
also
appears from his payroll records that the weeks in which he
received no overtime hours were weeks where he worked less than
a full forty hours.
2013,
Wilson’s
From May through the middle of October
overtime
hours
(excluding
the
weeks
where
he
worked less than forty hours) ranged from about sixteen hours to
twenty-four hours each week.
the end of December 2013,
From the middle of October through
his overtime hours (excluding the
weeks where he worked less than forty hours) ranged from about
four hours to eight hours each week.
Based on this evidence,
which the court views in the light most favorable to Wilson, the
court finds that he has satisfied the third prong of his prima
facie case as to his reduction in overtime retaliation claim.
4.
Causation
K.T.G.
meet
case.
the
asserts
“but-for”
that
Wilson’s
causation
retaliation
requirement
of
claims
the
fail
prima
to
facie
In order to satisfy this requirement, Wilson must provide
sufficient evidence
for a
reasonable
-28-
jury to infer that
the
filing of his grievances was the but-for cause for Dix reducing
his overtime hours and suspending him, and that those grievances
or the EEOC charges were the but-for cause for Fleck’s decision
to terminate his employment.9 See Amos v. McNairy Cty., 622 F.
App'x 529, 537 (6th Cir. 2015).
The court finds that the evidence, viewed in the light most
favorable
to
Wilson,
satisfies
retaliatory suspension claim.
the
causation
prong
for
the
During his first two years of
employment, Wilson received only one write-up, on September 1,
2011, for violating the attendance policy.
During the first
seven months of Dix’s supervision of Wilson, Wilson did not
receive
any
warnings
or
product spill infraction.
infractions
until
the
September
Less than two weeks after
30
Wilson
filed his October 22 grievance, Dix wrote him up for the cell
phone infraction, and about one month after Wilson filed his
November 7 grievance, Dix suspended him for the Receiving Report
9
The Nassar “but-for” standard has been applied as a prima facie
element in several unpublished Sixth Circuit decisions and
district court cases. See, e.g., Goodsite v. Norfolk S. Ry. Co.,
573 F. App'x 572, 582-84 (6th Cir. 2014); Beard v. AAA Mich.,
593 F. App'x 447, 450-52 (6th Cir. 2014); Greene v. U.S. Dep't
of Veteran Affairs, 605 F. App'x 501, 504-06 (6th Cir. 2015);
Williams v. Serra Chevrolet Auto., LLC, 4 F. Supp. 3d 865, 867,
877-80 (E.D. Mich. 2014); McQuail v. Tenn. Tech. Univ., 69 F.
Supp. 3d 701, 714 (M.D. Tenn. 2014); Taylor v. Donohoe, 66 F.3d
993, 1001, 1004 (W.D. Tenn. 2014); Van Buren v. Ohio Dep't of
Public Safety, 996 F. Supp. 2d 648, 666-67 (S.D. Ohio 2014); see
also Wright v. St. Vincent Hosp. Sys., 730 F.3d 732, 738 n.5
(8th Cir. 2013); Carlson v. CSX Transp., Inc., 758 F.3d 819, 828
n.1 (7th Cir. 2014); Verma v. Univ. of Penn., 533 F. App'x 113,
119 (3d Cir. 2013).
-29-
infraction.
Wilson has offered at least some evidence disputing
K.T.G.’s
claim
including
his
that
own
the
Receiving
testimony
as
Reports
well
as
were
Gray’s
mandatory,
declaration.
Wilson further relies upon the fact that the single Receiving
Report that K.T.G. used to infer that Wilson was aware of the
mandatory nature of Receiving Reports was filled out by Wilson
some four months earlier, which Wilson argues demonstrates that
the
reports
were
only
sporadically
required.
From
this
evidence, a reasonable jury could find that Wilson has satisfied
the but-for causation prong of his prima facie case.
The court also finds that with regard to his retaliatory
termination claim, a reasonable jury could find that Wilson has
satisfied
the
causation
prong
of
his
prima
facie
case.
By
January 2014, Fleck learned that Wilson had filed the November 6
charge
with
the
EEOC
and
that
he
had
hired
an
attorney
to
contest his alleged denial of overtime hours and suspension.
After
Fleck
informed
Wilson
that
she
had
conducted
an
investigation and could not corroborate Wilson’s allegations,
Wilson filed a second EEOC charge on March 24, which K.T.G.
responded to on May 28.
One month later, on June 24, 2014,
Fleck met with Wilson, Dix, and union representatives to discuss
Wilson’s three infractions that had occurred earlier that same
month, and at the conclusion of the meeting, Fleck terminated
Wilson’s
employment.
The
Sixth
-30-
Circuit
“has
embraced
the
premise
that
proximity
in
certain
between
the
distinct
protected
cases
where
activity
the
and
temporal
the
adverse
employment action is acutely near in time, that close proximity
is deemed indirect evidence such as to permit an inference of
retaliation to arise.” Seeger v. Cincinnatti Bell Telephone Co.,
LLC,
681
F.3d
274,
283
(6th
Cir.
2012)
(quoting
Potter, 358 F.3d 408, 421 (6th Cir. 2004)).
DiCarlo
v.
Based on this
sequence of events and the temporal proximity, Wilson has met
the
but-for
causation
prong
of
his
claim
of
retaliatory
termination.
However, with regard to the reduction in overtime claim, no
reasonable jury could find that Wilson has met his burden to
show
causation.
loaders
in
automatically
his
had
The
evidence
department
overtime
shows
worked
“built
that
Wilson
rotating
in.”
The
and
other
shifts
that
relief
person
assigned to each shift would be assigned overtime, and if the
relief person did not want the overtime, any qualified employee
could sign up for the slot. If an employee did not want his or
her assigned overtime, Dix would place a blank line next to each
employee’s name on a sheet that was placed on the bulletin board
to allow other employees to sign up for overtime.
Qualified
employees did not have to request this overtime from Dix; they
simply signed up for the overtime.
Wilson knew that he could
sign up to get overtime hours from other employees who did not
-31-
want to work overtime hours.
evidence
assign
to
suggest
additional
that
Although Wilson has presented some
Dix
overtime
had
and
discretionary
approve
authority
schedule
changes
to
(see
Wilson Dep. 152; Gray Decl. ¶ 7), Wilson has not presented any
evidence that Dix on any occasion denied Wilson overtime hours,
that Dix was responsible for assigning other employees overtime
hours that could have gone to Wilson during any particular pay
period,
or
that
Dix
changed
anyone’s
schedule
that
effect of reducing Wilson’s overtime opportunities.
not
presented
any
evidence
that
Dix
took
steps
had
the
Wilson has
to
cut
his
overtime hours or that he (Wilson) ever put in for overtime and
was denied.
The same payroll records that Wilson relies upon to show
that his overtime hours were reduced in November and December
2013 also show that for the two pay periods before he filed his
October 22 grievance, he received only 7.83 hours and 4.08 hours
of overtime, which was down from
the sixteen to twenty-four
hours of overtime he earned in the weeks leading up to the
beginning of October 2013.
Thus, to the extent Wilson relies
upon temporal proximity to support his claim, the fact that he
received
October
reduced
22
Moreover,
overtime
grievance
according
to
cuts
hours
prior
against
Fleck’s
a
to
the
finding
declaration,
filing
of
of
the
causation.
between
November
2013 and January 2014, overtime opportunities were reduced for
-32-
Shipping Department employees because converting employees were
available to provide coverage on a straight-time basis.
Also,
in the year prior to November 6, 2013, one of the shipping
employees was on medical leave, which resulted in significantly
more
opportunities
overtime.
for
Wilson
other
employees
to
work
Upon this employee’s return to work, there were less
overtime opportunities.
from
and
this
evidence
requirement
overtime
of
his
Because no reasonable jury could find
that
Wilson
has
prima
facie
case
retaliation
claim,
K.T.G.
satisfied
as
is
to
the
his
causation
reduction
entitled
to
in
summary
judgment on this claim.
D.
Non-retaliatory Reasons
The court next must determine whether K.T.G. has presented
sufficient evidence from which a reasonable jury could conclude
that K.T.G. had a legitimate, non-retaliatory reason for its
suspension and termination decisions.
burden as to both claims.
K.T.G. has satisfied its
Regarding the suspension decision,
K.T.G. has presented evidence that Dix found Wilson using his
cell phone at work and that Wilson did not complete a Receiving
Report,
both
termination
terminated
violations
decision,
Wilson
of
K.T.G.
K.T.G.
after
has
Fleck
policies.
presented
conducted
an
Regarding
evidence
that
investigation
the
it
and
found that Wilson had improperly stacked pallets of product,
failed to follow work orders, and failed to undertake work for
-33-
his
entire
shift,
all
violations
of
K.T.G.’s
policies
and
grounds for termination pursuant to its Progressive Discipline
Policy.
While Wilson denies that he was talking on his cell
phone at the time Dix saw him with it, denies that Receiving
Reports were mandatory, and disputes the evidence of improper
pallet stacking relied upon by Fleck, K.T.G. has presented ample
evidence of non-retaliatory reasons to justify its employment
decisions
at
this
second
stage
of
the
McDonnell
Douglas
analysis.
E.
Pretext
Based
on
retaliatory
the
sufficiency
reasons,
the
of
burden
K.T.G.’s
shifts
to
evidence
Wilson
of
to
non-
present
sufficient evidence from which a reasonable jury could conclude
that
K.T.G.’s
retaliation.
proffered
“At
the
reasons
summary
are
judgment
mere
stage,
pretext
the
issue
for
is
whether the plaintiff has produced evidence from which a jury
could reasonably doubt the employer's explanation. If so, her
prima
facie
case
discrimination
at
is
sufficient
trial.”
to
Montell
support
v.
an
inference
Diversified
of
Clinical
Servs., Inc., 757 F.3d 497, 508 (6th Cir. 2014) (citing Chen v.
Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009)).
“Unlike
its role in establishing a prima facie case, ‘the law in this
circuit is clear that temporal proximity cannot be the sole
basis for finding pretext.’” Seeger, 681 F.3d at 285 (quoting
-34-
Donald
v.
Sybra,
Inc.,
667
F.3d
757,
763
(6th
Cir.
2012)).
“However, ‘suspicious timing is a strong indicator of pretext
when
accompanied
by
some
other,
independent
evidence.’”
Id.
(quoting Bell v. Prefix, Inc., 321 F. App’x 423, 431 (6th Cir.
2009)).
The first potential theory to attack the credibility of the
defendant's articulated reason for its actions requires that the
proffered
reason
lack
a
factual
basis.
Manzer
v.
Diamond
Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994),
overruled on other grounds, Geiger v. Tower Auto., 579 F.3d 614
(6th Cir. 2009).
consists
of
plaintiff's
This first “showing is easily recognizable and
evidence
discharge
that
never
the
proffered
happened,
i.e.,
bases
for
the
that
they
are
factually false.” Id. (internal quotations omitted). The second
theory, that the proffered reason did not actually motivate the
defendant's
action,
requires
that
“the
plaintiff
admits
the
factual basis underlying the employer's proffered explanation
and further admits that such conduct could motivate dismissal.”
Id. (emphasis in original).
The second showing constitutes an
indirect attack on the proffered reason where “the plaintiff
attempts to indict the credibility of his employer's explanation
by showing circumstances which tend to prove that an illegal
motivation was more likely than that offered by the defendant.”
Id. (emphasis in original). Like the first theory, the third
-35-
theory is a direct attack that “consists of evidence that other
employees, particularly employees not in the protected class,
were
not
fired
even
though
they
engaged
in
substantially
identical conduct to that which the employer contends motivated
its discharge of the plaintiff.”
plaintiff
employs,
he
always
Id.
bears
“Whichever method the
the
burden
of
producing
sufficient evidence from which the jury could reasonably reject
[the defendant's] explanation and infer that the defendant []
intentionally discriminated against him.” Seeger, 681 F.3d at
285 (alterations in original) (quoting Clark v. Walgreen Co.,
424 F. App’x 467, 474 (6th Cir. 2011) (per curiam) (citation and
internal quotation marks omitted)).
In arguing that Wilson has failed to prove pretext, K.T.G.
invokes the honest belief rule.
The honest belief rule provides
that “as long as the employer honestly believed the reason it
gave
for
its
employment
action,
an
employee
is
not
able
to
establish pretext even if the employer’s reason is ultimately
found to be mistaken.” Ferrari v. Ford Motor Co., 826 F.3d 885,
895 (6th Cir. 2016).
To prove a belief is honestly held, “the
employer must be able to establish its reasonable reliance on
the particularized facts that were before it at the time the
decision was made.” Id. at 896 (internal quotation and citation
omitted).
-36-
“[T]he honest belief rule only applies when a plaintiff is
proceeding solely on the basis that the proffered reason has no
basis in fact.” Hawthorne v. Univ. of Tenn. Health Sci. Ctr.,
203 F. Supp. 3d 886, 892 n.4 (E.D. Tenn. 2016).
“If . . . a
plaintiff argues that the proffered reasons did not actually
motivate the termination or was insufficient to motivate the
termination, the honest belief rule has no application.” Id.
In
response to K.T.G.’s reliance on the honest belief rule, Wilson
argues that the rule does not apply in this case because his
pretext
arguments
theories
–
that
motivate
the
are
based
K.T.G.’s
employment
solely
on
proffered
decisions
the
reasons
and
were
second
did
and
not
third
actually
insufficient
to
motivate those decisions. (See Pl.’s Resp. in Opp. to Def.’s
Mot.
for
Summ.
J.
at
17.)
Because
Wilson
has
expressly
renounced any reliance on the first theory – the “no basis in
fact” theory - the honest belief rule does not apply.
The court will therefore focus its attention on the second
and third pretext arguments.
Under the second pretext theory, a
plaintiff “admits the factual basis underlying the employer's
proffered explanation and further admits that such conduct could
motivate dismissal[.]” Hedrick v. Western Reserve Care System,
355
F.3d
444,
461
citation omitted).
(6th
Cir.
2004)
(internal
quotation
and
Regarding the retaliatory suspension, the
court finds that Wilson has presented sufficient evidence from
-37-
which a reasonable jury could find that K.T.G.’s stated reasons
for suspending him are pretext for unlawful retaliation.
discussed
above,
during
his
first
two
years
of
As
employment,
Wilson was written up only once, for violating the attendance
policy, and during the first seven months of Dix’s supervision
of Wilson, Wilson did not receive any warnings or infractions
until the September 30 product spill infraction.
Less than two
weeks after Wilson filed his October 22 grievance, Dix wrote him
up for the cell phone infraction, and about one month after
Wilson filed his November 7 grievance, Dix suspended him for the
Receiving Report infraction.
Wilson does not dispute K.T.G.’s
claim that he did not complete the Receiving Report, but he has
offered at least some evidence disputing K.T.G.’s assertion that
the Receiving Reports were mandatory and suggesting that the
reports were only sporadically required.
From this evidence, a
reasonable jury could conclude that Dix wrote up Wilson and then
suspended him because he had filed the grievances against Dix
accusing him of discrimination and retaliation.
Regarding the retaliatory termination, however, the court
finds that Wilson has not presented sufficient evidence from
which a reasonable jury could find pretext.
Wilson takes issue
with the photographs of the pallets and other evidence used in
the investigation of the June 9 infraction, but he offers no
evidence to create a genuine dispute regarding his failure to
-38-
follow work orders and failure to undertake work for his entire
shift on June 12, and his “disappearing” after being told to get
back
to
work
by
converting
leadership
on
June
23.
Wilson
concedes that any of these violations of K.T.G.’s policies would
have been grounds for termination pursuant to the Progressive
Discipline Policy, since he had previously received a verbal
coaching and two write-ups leading up to the June 2014 series of
infractions.
Fleck
made
the
decision
to
terminate
Wilson’s
employment only after she conducted her investigation and after
he declined the last chance agreement.
Temporal proximity at
the pretext stage is not enough to prove pretext. See Seeger,
681 F.3d at 285.
Wilson’s reliance on the third pretext theory does not save
his retaliatory termination claim.
attack
that
particularly
consists
of
employees
not
This showing is a direct
evidence
in
the
that
other
protected
class,
employees,
were
not
disciplined even though they engaged in substantially identical
conduct
to
discipline
that
of
the
which
the
employer
plaintiff.
Wilson
contends
has
not
motivated
its
presented
any
evidence regarding how other similarly-situated employees were
treated who committed the same series of infractions that he
allegedly committed in June 2014.
Therefore, K.T.G. is entitled
to summary judgment on Wilson’s retaliatory termination claim.
III. CONCLUSION
-39-
For the reasons above, K.T.G.’s Motion for Summary Judgment
is GRANTED as to the retaliation claims based on a reduction in
overtime and termination, and DENIED as to the retaliation claim
based on his December suspension.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
September 24, 2018
Date
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