Opinion
Case No. 1:99 cv 701
July 24, 2001
OPINION
This is a Title VII action brought by a pro se plaintiff. Plaintiff is a former employee of defendant. Defendant terminated plaintiff's employment on January 26, 1998. Plaintiff claims discrimination on the basis of race, sex, and retaliation for prior EEO activity. (Complaint, ¶¶ 1, 9, 14). The matter is before the court on defendant's motion for summary judgment. (docket # 108). Plaintiff has presented materials in opposition to defendant's motion. (docket #'s 132-35,141,151). For the reasons set forth below, defendant's motion for summary judgment will be granted.
Applicable Standard
Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED R. Civ. P. 56(c); Hiney Printing Co. v. Brantner, 243 F.3d 956, 959 (6th Cir. 2001); Redding v. St. Edward, 241 F.3d 530, 532 (6th Cir. 2001); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir. 1997) (en banc). The standard for determining whether summary judgment is appropriate is whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see Gronerv. Golden Gate Gardens Apartments, 250 F.3d 1039, 1043 (6th Cir. 2001); Strouss v. Michigan Dep't of Corrections, 250 F.3d 336, 341 (6th Cir. 2001); Burnett v. Tyco Corp., 203 F.3d 980, 982 (6th Cir.), cert. denied, 121 S.Ct. 307 (2000).
The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wathen v. General Elec. Co., 115 F.3d 400, 403 (6th Cir. 1997). The party moving for summary judgment bears the initial burden of pointing out to the district court that there is an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials "negating" the opponent's claim. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339 (6th Cir. 1993). Once the movant shows that "there is an absence of evidence to support the nonmoving party's case," the non-moving party has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
To sustain this burden, defendant may not rest on the mere allegations of its pleadings. FED. R. Civ. P. 56(e); Campbell v. Grand Trunk Western R.R., 238 F.3d 772, 775 (6th Cir. 2001); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). A party opposing a motion for summary judgment has the burden to come forth with requisite proof to support his legal claim, particularly where he has had an opportunity to conduct discovery. See Cardamone v. Cohen, 241 F.3d 520, 524 (6th Cir. 2001); Noble v. Chrysler Motors Corp., 32 F.3d 997, 999 (6th Cir. 1994); Street v. J. C. Bradford Co., 886 F.2d at 1478-81. In so doing, plaintiff must set forth specific facts showing that there is a genuine issue for trial. FED. R. Civ. P. 56(e); see Mounts v. Grand Trunk Western R.R., 198 F.3d 578, 580 (6th Cir. 2000); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Brennan v. Township of Northville, 78 F.3d 1152, 1156 (6th Cir. 1996). Conclusory statements, unsupported by specific evidence to support a claim, do not meet this standard. Kensu, 87 F.3d at 175-76. Applying these standards, defendant's motion for summary judgment will be granted.
Facts
The following facts are beyond genuine issue. Federal Express is in the business of expedited delivery of parcels. Federal Express customers pay a premium price for this service. (Plf. Dep. at 162-64, docket # 108, Ex. A). Plaintiff was employed by defendant as a senior customer service agent in the Federal Express office in Stevensville, Michigan. (Ex. 1). Plaintiff's deposition testimony covered the standard operating procedures followed in the Stevensville office of Federal Express. She testified that when a customer brought a package or letter into the Stevensville office, it would be handled by a customer service agent. The agent would accept the parcel, give the customer an air bill, and accept payment or charge the customer's account. The parcel would then be secured behind the counter to prevent possible theft. The agent would scan the parcel for tracking purposes. In the Stevensville office, packages were either temporarily stored in the front office area or taken out to a conveyor belt located in an area behind the customer service area known as the warehouse or barn. Smaller parcels, referred to as letters, would be collected in "buckets" by the customer service agents rather than being transported to the warehouse individually. On slower days, customer service agents would use a single bucket for collecting the letters. Trucks picked up and dropped off parcels at the warehouse. Parcels from the Stevensville office would generally be shipped to the airport in South Bend, Indiana. All parcels were required to be on the truck before it left for the airport, otherwise they would not be delivered overnight as Federal Express had promised the customers. It is undisputed that overnight delivery is the essence of defendant's business. It is undisputed that it was the customer service agent's responsibility to get parcels to the truck on time so that, in turn, they would make it to the airport on time. If a customer service agent left a parcel or parcels behind the counter when she closed, the parcels would not be delivered and the customer would be deprived of the expedited service promised by Federal Express. (Plf. Dep at 157-68, 201-04).
Unless otherwise specified, all exhibits refer to exhibits attached to defendant's motion (docket # 108).
On Monday, September 15, 1997, plaintiff and Mark Wild were the — Federal Express customer service agents working at the Stevensville facility. Plaintiff described Stevensville as a "small station." (Plf. Dep. at 202, 205-06). According to plaintiff, she did not recall Mr. Wild receiving any heavy packages that day. She stated, "I know I received some, but I think he just got letters that day." (Plf. Dep. at 213). Plaintiff did not believe that Mr. Wild was doing his share of the work. (Plf. Dep. at 214). Plaintiff did not believe that a twenty-five pound medical weightlifting restriction imposed upon Wild was warranted, because plaintiff had observed him lifting heavier packages. (Plf. Dep at 356). On September 15, 1997, Mark Wild had collected two buckets of letters on a cart. Plaintiff had one bucket on her desk. (Plf. Dep. at 206-07). On that day, Mark Wild left the office before plaintiff. Plaintiff recalled that Wild left the office sometime after 3:00 p.m. Plaintiff left work that day sometime after 8:00 p.m. (Plf. Dep. at 205-06, 208). Plaintiff estimated that approximately seven hours, but possibly as few as three hours, had passed between the time Mark Wild left work for the day and the time the truck departed from the Stevensville facility to go to the airport. (Plf. Dep. at 213). It is undisputed that plaintiff was the closing customer service agent. She was the only customer service agent in the office when she locked it up for the day. Plaintiff admits that she saw a bucket of letters Wild had received over the counter sitting there after Wild had left, and before the truck had left for the airport. (Plf. Dep at 194, 199200, 206, 209, 214, 215). At her deposition, plaintiff testified, "It was obvious it was there, yeah." (Plf. Dep. at 209). Plaintiff knew that the bucket of letters was sitting there unattended. She "knew [the truck] was going to pull, yes." (Plf. Dep. at 216). Plaintiff did not recall whether she had experienced any significant parcel traffic between the time Wild left and when she departed work hours later. (Plf. Dep. at 210).
The next morning, it was discovered that a number of packages (somewhere between 4 and 12) (Plf. Dep. at 258) had not been sent to their destination the night before. The letters obviously were not delivered within the time frame Federal Express had promised. Plaintiff arrived at work the next day at approximately 1:00 p.m. At her deposition, plaintiff recalled being questioned by Brian Taylor about the undelivered documents, but could not recall the specifics of the conversation. (Plf. Dep. at 249-50, 265).
Plaintiff did recall having a "heated discussion" or "heated exchange" with Mark Wild that afternoon, but plaintiff could not recall what was said during the exchange. (Plf. Dep. at 251, 256, 272).
The problem of the undelivered letters was brought to the attention of the Station Manager, Mary E. Worstell. Ms. Worstell conducted an investigation of the incident. (Worstell Aff., ¶ 2, docket # 125). As part of her investigation, Worstell interviewed four employees and asked them to submit written statements. Brian Taylor, Mark Wild and Lynda Martin provided written statements. (Worstell Aff., ¶¶ 3-6). Worstell asked plaintiff to provide her own written statement regarding her actions on the night in question, but plaintiff refused. (Plf. Dep. at 277-79). Station Manager Worstell discussed the matter with plaintiff on September 17, 1997, and prepared a written summary. (Worstell Aff., ¶ 3). The four statements set forth verbatim below were utilized in the Federal Express Guaranteed Fair Treatment Process ("GFTP") which determined the disciplinary sanction to be imposed against plaintiff. (Worstell Aff., ¶¶ 3-6).
Plaintiff objected to these exhibits on the basis that they are hearsay. Upon review, the court finds that the records are not hearsay and, in any event, fall within the business records exception of Fed.R.Evid. 803(6). (See Worstell Aff., ¶¶ 2-7, docket # 143). The statements recorded within these exhibits are not hearsay because they are not offered for the truth of the matters asserted, but merely to reflect the written record upon which the decision to terminate plaintiff's employment was based. See FED. R. Evid. 801(c); Bell v. EPA, 232 F.3d 546, 551-52 (7th Cir. 2000).
Mary E. Worstell: To Whom it May Concern:
On 9/16/97 I was informed by Mark Wild that Leah Watts had not shipped 8-10 documents that he had received over the counter. Leah had been the closing service agent the previous night (9/15/97). The next day I asked Leah what her version of the event was and if she would write a statement. She refused to write a statement. However, she did tell me her side — She stated that "Mark did not take all his documents out to the belt to go outbound and it was not her job to always do his work." I then asked her why she didn't ship them outbound and inform me that Mark had not taken the documents to the belt. She then stated that" this had happened before and she was not going to continue to do Mark's work." I then informed her that irregardless whether she felt that she was doing Mark's work she should have taken all the documents and shipped them.
Brian Taylor
On Tuesday 9/16/97 I opened in place of Arleah Watts due to a schedule change. When I came in the CSA office at approx 0810,1 noted a bucket of about 10-12 docs. I questioned Mark Wild, the other service agent about them. He said that he did not know, but suspected that they were left out from the previous evening. When Arleah came in around 1300, I asked her about the docs. At first she replied that it was none of my business. When I pressed further, she told me they were left from the night before and that they were Mark's. Since they seemed to be already routed, I then asked her why they didn't go out to the warehouse to be loaded. She then got angry, said that "Mark was on the phone for too long yesterday, so I left them there." Mark then confronted Arleah about the does. Leah became irate and got within inches of Mark and started yelling at him. Mark walked outside, probably to avoid a confrontation. Arleah then told Mark (as he was leaving) that she left the docs there because Mark doesn't take hers. To the best of my memory, that is how the events happened.
Mark Wild
On Tuesday Sept.
upon opening the station, Brian Taylor found a tub of documents had been left in the office and missed the outbound document sort. When I began my shift at 8:30 A.M. Brian asked me why they were not shipped out the night before. I proceeded to look through the documents and found that they were packages that I had taken over the counter. When Arleah came in to work her shift Brian inquired about them being left behind. Arleah told Brian that she left them intentionally, that she wasn't going to send them out because they were my responsibility. She basically sorted out her packages and left mine. Ever since I can remember we have always sorted does over the counter into tubs in the office then who ever closes takes docs out to the sort. I asked Arleah if she did this on purpose to "get me" and she said, "Yes." I left the station at this time to go on break and at that time informed Mary of. . . .
Lynda Martin To whom it May concern:
At approximately 3:00 pm on Tuesday 16th, I personally was in the office doing my paperwork. Persons present were Lynda Martin, Mark Wild, Arleah Watts and Brian Taylor. A conversation took place between Mark Wild and Arleah Watts. Arleah stated to Mark "its not her job to SOP his packages." Apparently some docs were left in the station the night before without any outbound scans. Mark stated to Arleah "Why are you being so difficult to me, we have been doing this same procedure forever." Referring to documents from the counter to be put in a bucket for outbound. Arleah's response "Do your own job like a man, the only man in the office is Brian Taylor. Mark stated "fine" and left the room.
(Exs. 2, 3, 4, 5). On September 26, 1997, Ms. Worstell concluded her investigation. She issued a "warning letter and decision day" to plaintiff as a "notification of a behavioral deficiency which [was] unacceptable under the Acceptable Conduct Policy (2-5)." (Ex. 6). Worstell found "clear evidence" that on Monday, September 15, 1997, plaintiff "deliberately and willfully did not ship 10 documents that had been received over the counter by Mark Wild (csa)."
You even took the time to take your documents out of the document buckets and left other documents to be overlooked. Also, according to the statements your actions are due to a personal situation between yourself and Mark. Many customers did not receive the service they paid for and expect, due to your actions. The bottom line is that you knew that the letters were sitting there and you did not care that the packages did not reach their destination in the time period that FedEx had promised. FedEx is a customer service company and it is your job to do whatever you have to do to take care of the customer. The customer is our paycheck. You must never allow your personal feelings for another employee to get in the way of servicing our customers. You will be granted a Day of Decision on Thursday 10/02/97. A Day of Decision is a day off, with pay to decide whether or not you wish to remain employed by FedEx. You are to return on 10/3/97 with either a detailed Personal Performance Agreement or a letter of resignation. If you decide to submit an agreement it must be fully acceptable to me and must clearly outline what you plan to do to correct the behavioral deficiency.
Ms. Worstell advised plaintiff of the means available for appealing her decision:
If you feel this action to be unfair, you must first hold an open and frank discussion with your immediate manager to attempt to resolve your concern or problem. You may also pursue this under the Guaranteed Fair Treatment (P5-5). To enter the GFTP process at Step1, you must either enter the PRISM system and go to the GFTP section within 5 calendar days of the perceived unfair action.
On October 3, 1997, plaintiff sent a fax to Marion Hunt, Managing Director of Federal Express's Heartland District, appealing the warning letter through the defendant's GFTP process.
I TOTALLY DISAGREE WITH WARNING LETTER ISSUED ON SEPTEMBER 30TH, DATED FOR SEPTEMBER 26TH. THIS LETTER INVOLVES MYSELF REFUSING TO DO ANOTHER EMPLOYEE'S JOB. DETAILS WILL BE DISCUSSED IN GFT MEETING (Ex. 7).
The GFTP is a three step review procedure whereby an employee can appeal an employment action through three successively higher levels of corporate management. At each level, the reviewing body has discretion to uphold, overturn, or remand the matter back to a lower level. (Ex.8). On December 24, 1997, Marion Hunt notified plaintiff of the decision on plaintiff's Step I GFTP. Ms. Hunt upheld management's decision.
On the night in question you were the last service agent working. All documents which had been collected over the counter that day were in one bucket. You went through that bucket and pulled out all documents that you and fellow service agent Brian Taylor had processed, but you left behind all documents which fellow service agent mark Wild had processed. You had to know that Mark's documents would be overlooked and would miss the service the next day since you were the final check on those documents. Your manager, Mary Worstell, had never directed the BEH service agents to carry out the docs they had personally accepted over the counter each day to the reload area. However, in this case, whether or not it was Mark's responsibility to carry those doc's out you blatantly left them behind knowing that they would miss service and that customers would be upset and we would be paying refunds. This is totally unacceptable and is a clear violation of the acceptable conduct policy.
It is undisputed that this statement by Ms. Hunt was in error, as Mr. Taylor did not work on September 15, 1997. (See Victoria Anderson Aff., ¶¶ 5, 7, docket # 131). It is undisputed that Mark Wild was the other customer service agent working on September 15, 1997.
(Ex. 11). Hunt's letter advised plaintiff of the procedure for appealing this decision to Step II.
Plaintiff pursued a Step II appeal. On January 9, 1998, the reviewing officers upheld management's decision to issue the warning letter. (Ex. 12). Plaintiff appealed to Step III. On January 16, 1998, the Appeals Board remanded plaintiff's Step III appeal because Central Region Vice President, Richard Schneider, had requested reconsideration. (Ex. 13). On January 22, 1998, Schneider wrote the following letter to plaintiff:
Your GFTP appeal has been remanded back to step II for further consideration. After reviewing all the facts of your Step II complaint within the Guaranteed Fair Treatment Procedure, Dave Rebholtz, (Sr. Vice President — US and Canada) and I have decided to modify management's decision to issue a warning Letter for violation of the Acceptable Conduct Policy (2-5). Due to the gross misconduct detailed in the Warning Letter, it has been decided to rescind this letter and instead direct local management to further review your discipline.
Arleah, on September 15, 1997, you deliberately left several of our customers' document packages in the station in retaliation for what you felt was unfair treatment. Your actions are clearly in violation of the Acceptable Conduct policy which prohibits any acts detrimental to the best interests of Federal Express and/or fellow employees. You have admitted to deliberately leaving these packages at the front counter when you closed, knowing they would not be sent to the ramp with the rest of the outbound freight. Your concerns about management not holding a fellow CSA accountable does not excuse this malicious act. The fact that you chose to take this inappropriate action against a fellow employee is of itself sufficient cause for a Warning Letter. More importantly, I find that using our customers in this manner is reprehensible and cannot be tolerated. You have completely disregarded the trust our customers have placed in us. Your record contains numerous counselings, three Reminder Letters, and a Warning Letter. Your behavior has been unacceptable and cannot be allowed to continue.
The record of disciplinary actions against plaintiff is summarized in defendant's answers to plaintiff's interrogatories. (docket # 71, Ex. I, Defendant's Amended Responses to Plaintiff's Interrogatories, ¶ 3).
(Ex. 14). Mr. Schneider's letter advised plaintiff of the means of appealing this decision to the Appeals Board.
On January 26, 1998, Operations Manager, Christopher M. Huber, wrote plaintiff a letter advising plaintiff that her employment had been terminated.
After completion of a thorough review of your alleged violation of P2-5, the Acceptable Conduct Policy, relating to your current GFTP, the decision has been made to terminate your employment with Federal Express effective, Monday, 1/26/98.
The review provided the following facts:
On 9/15/97, you left a number of packages at the front counter that missed service commitment to our customers. These actions were intentional and you knowingly caused failed service to our customers. Your action of using customers' packages to harm another employee had a direct effect on our commitment to our customers and Federal Express' overall reputation of quality service.
(Exs. 15, 19). A memorandum issued on January 28, 1998, advised plaintiff of the available means of appealing her termination. (Ex. 16). Plaintiff pursued an appeal. On February 3, 1998, defendant's Appeals Board upheld management's termination of plaintiff's employment on the basis of plaintiff's violation of the Acceptable Conduct Policy. (Ex. 17).
On February 12, 1998, plaintiff filed her charge of discrimination with the EEOC (Charge No. 23A98-5521). Plaintiff completed the form, indicating that she was claiming discrimination on the basis of sex, race and retaliation. The factual basis for plaintiff's claim is set forth verbatim below:
I began working for the above company on May 21, 1990, as a Service Agent. I have always performed my job well. I am the only Black female worker. On July 3, 1997 I filed complaint, # 156328-EM07 with the Dept. of Civil Rights for race discrimination.
On September 27, 1997 I was issued a reminder letter and a documented counseling in retaliation for having filed a complaint and for having filed a grievance for race discrimination. I know of White employees who have not pulled or loaded all customers documents and were not disciplined. On January 26, 1998, my warning was changed to a termination. I, a Black woman, believe race was a factor in the retaliation, discipline and terminated for having filed a previous complaint.
(Ex. 20). On June 11, 1999, the EEOC closed its file with regard to charge no. 23A-98-5521, finding insufficient information to establish violations of the statutes. On June 11, 1999, the EEOC issued its right to sue letter. (Ex. 18). Plaintiff filed her complaint on September 13, 1999.
At her deposition, plaintiff was questioned regarding the factual basis of her claim of race discrimination. Plaintiff asserted that three white employees had not been disciplined for similar actions. (Plf. Dep. at 399-400). Plaintiff asserted that when Mark Wild was a courier he had purportedly left behind a package that was supposed to go on his route. Plaintiff stated that she recalled complaining about the incident to Brian Hay. (Plf. Dep at 364-68, 401). Plaintiff also believed that on December 18, 1997, Wild left "a bucket of documents" and that she told the manager about it. (Plf. Dep. at 401). Plaintiff stated that she heard from Judy Smith that in July of 1997, a courier named Mike McDonnell purportedly left a 100 pound package on his truck. Plaintiff did not believe that Ms. Smith had firsthand knowledge of the alleged incident. Plaintiff testified that FedEx couriers are only required to lift packages up to seventy-five pounds so the package purportedly left behind by McDonnell exceeded what Mr. McDonnell was required to lift. (Plf. Dep. at 357-59, 361, 363). Plaintiff claimed that she had heard about a driver named Fred Walker leaving a van filled with packages and going home. Plaintiff had no firsthand knowledge of the incident. Plaintiff stated that Walker's employment had been terminated, but she believed he had been able to get his job back through the appeal process. (Plf. Dep. at 402, 405).
Discussion
Title VII of the Civil Rights Act of 1964 provides that "it shall be an unlawful employment practice for an employer" to discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. Title VII also prohibits discrimination against an employee because that employee has "opposed any practice made an unlawful practice by Title VII." 42 U.S.C. § 2000e-3(a); see, e.g., Davis v. Rich Products Corp., No. 00-5217, 2001 WL 392036, at-12-2 (6th Cir. Apr. 9, 2001).
In this lawsuit, plaintiff alleges that she was discharged on January 26, 1998, on the basis of race and sex discrimination and in retaliation for prior EEO activity in violation of Title VII. Claims of intentional discrimination may be established either by proffering direct evidence of discrimination, or relying on circumstantial evidence to create an inference of discrimination. See Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995). Plaintiff has proffered no direct evidence of discrimination. Consequently, she is required to establish a prima facie case of circumstantial evidence under the framework established and refined in a trilogy of Supreme Court cases: McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1281), and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). "Under these cases Title VII cases require three stages of proof. First, the plaintiff must prove a prima facie case of discrimination. If the plaintiff establishes its prima facie case, the burden then shifts to the defendant to articulate some legitimate nondiscriminatory reason for the employee's [discharge]. If the defendant carries this burden, the plaintiff must prove that the proffered reasons were pretextual." Kline v. Tennessee Valley Auth., 128 F.3d 337, 342 (6th Cir. 1997) (citations omitted). The ultimate burden of persuading the trier of fact that defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Hicks, 509 U.S. at 507, 508, 511. "It is well-established that the burden is on the plaintiff to establish a prima facie case of discrimination." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972). To establish a prima facie case of race discrimination under Title VII, a plaintiff must show that (1) she was a member of a protected class, (2) she was discharged, (3) she was qualified for the position, and (4) she was replaced by a person outside the protected class. See Mitchell v. Toledo Hosp., 964 F.2d at 581. In order to establish a prima facie case of sex discrimination in her termination, plaintiff was required to show the following: (1) that she belongs to the protected class; (2) that she was qualified for the position; (3) that she suffered an adverse employment action; and (4) that she was replaced by a person outside the protected class, i.e., a male. See Barnett v. Department of Veterans Affairs, 153 F.3d 338, 341 (6th Cir. 1998); see also Schatzman v. City of Clermont, No. 99-4066, 2000 WL 1562819, at * 4 (6th Cir. Oct. 11, 2000). "The prima facie case is not the final inquiry, but rather the first prong of the analysis which defeats a motion for dismissal prior to trial." EEOC v. Avery Denison Corp, 104 F.3d 858, 861 (6th Cir. 1997). If the plaintiff is successful in proving her prima facie case the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. Burdine, 450 U.S. at 256-60; McDonell Douglas v. Green, 411 U.S. at 802-03 Diehl v. Tele-Solutions, Inc., 57 F.3d 482, 483 (6th Cir. 1995). If the defendant meets this burden, the plaintiff must then show that the defendant's articulated reason is a pretext for discrimination. 411 U.S. at 802-03; Allen v. Michigan Dep't of Corrections, 165 F.3d 405, 409 (6th Cir. 1999); Mitchell, 964 F.2d at 584.
It is undisputed that plaintiff is a member of a protected class. Employment termination is obviously an adverse employment decision. See Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 885 (6th Cir. 1996). Defendant argues that plaintiff's misconduct rendered her "unqualified" for the customer service agent position she held for a number of years. Plaintiff has the burden of proving that she was qualified for the position. In order to be qualified for the position, plaintiff was required to demonstrate that she was meeting her employer's legitimate expectations and was performing to her employer's satisfaction. Warfield v. Lebanon Correctional Inst., 181 F.3d 723, 729 (6th Cir. 1999); Ang v. Procter Gamble Co., 932 F.2d 540, 548 (6th Cir. 1991). In Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000), the Sixth Circuit held that, "[W]hen assessing whether a plaintiff has met her employer's legitimate expectations at the prima facie stage of a termination case, the court must examine plaintiff's evidence independent of the nondiscriminatory reason `produced' by the defense as its reason for terminating plaintiff." The Sixth Circuit reversed the district court for "conflating" the distinct stages of the McDonnell Douglas analysis. "[W]hether or not a plaintiff makes a prima facie case must be ascertained by weighing the plaintiff's evidence that she was meeting-her employer's legitimate expectations, not by considering the nondiscriminatory reasons produced by the defendant as its reason for terminating her." 206 F.3d at 662-63; see Walker v. Montcalm Center for Behavioral Health, No. 00-1470, 2000 WL 1800637, at * (6th Cir. Nov. 30, 2000). Accordingly, defendant's arguments in this regard are insubstantial. The employer's reasons for termination must be addressed outside the analysis of plaintiff's prima facie case.
Plaintiff has not presented evidence creating a genuine issue for trial on the fourth element of her prima facie case for either race or sex discrimination. A plaintiff can establish this element by demonstrating that she was replaced by a person outside the protected class, or alternatively by demonstrating that a "comparable non-protected person was treated better." Mitchell, 964 F.2d at 582. Plaintiff has presented no evidence that she was replaced by an employee outside the protected class.
Plaintiff relies upon an argument that other employees were treated more favorably for similar conduct. "[I]t is the plaintiff's task to demonstrate that similarly situated employees were treated differently." Burdine 450 U.S. at 258. The Sixth Circuit has held, "The plaintiff must produce evidence which at a minimum establishes (1) that [s]he was a member of a protected class and (2) that for the same or similar conduct [s]he was treated differently than similarly situated nonminority employees." Mitchell, 964 F.2d at 583. In Mitchell, the Sixth Circuit stated as follows:
It is fundamental that to make a comparison of a discrimination plaintiff's treatment to that of non-minority employees, the plaintiff must show that the "comparables" are similarly-situated in all respects. Stotts v. Memphis Fire Department, 858 F.2d 289 (6th Cir. 1988). Thus, to be deemed "similarly situated," the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their — conduct or the employers treatment of them for it.964 F.2d at 583. The court noted that it was the plaintiff's burden to present evidence that the comparables" shared the same supervisor, were subject to the same standards, and that they engaged in the same conduct. Id. at 583-84. In Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998), the Sixth Circuit pointed out that exact identity in every single aspect of employment has never been required. Generally, in cases alleging "differential disciplinary action," the same supervisor, same standards and same conduct are all relevant factors. Id. at 352. The court is to make an "independent determination as to the relevancy of a particular aspect of the plaintiff's employment status and that of the non-protected employee." Id. "The plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment in order for the two to be considered `similarly situated;' rather . . ., the plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be similar `in all of the relevant respects.`" Id. (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 802 (6th Cir. 1994)). "The Court cannot sit as a `super-personnel department."` Young v. Sabbatine, 2000 WL 1888672, at * 6 (quoting Krenick v. County of LeSueur, 47 F.3d 953, 960 (8th Cir. 1995)). It is the plaintiff's burden to establish that the other employee's acts were of comparable seriousness to his or her own infraction. See Warfield v. Lebanon Correctional Inst., 181 F.3d 723, 730 (6th Cir. 1999); see also Young v. Sabbatine, No. 99-6336, 2000 WL 1888672, at * 5 (6th Cir. Dec. 19, 2000).
The comparable seriousness must be evaluated objectively. That other employees were fired for different, and what plaintiff "subjectively believes to be more serious, misconduct, simply does not satisfy the `similarly situated element of a prima facie case." Young v. Sabbatine, 2000 WL 1888672,.at.* 7 Plaintiff's purported "comparables" are Fred Walker, Mike McDonnell, and Mark Wild. (Plf Brief at 9, docket # 135). With regard to Mike McDonnell, plaintiff stated at her deposition that she heard from a woman named Judy Smith that in July of 1997, a courier named Mike McDonnell had purportedly left a 100 pound package on his truck. Plaintiff did not submit any documentary evidence indicating that such an event ever occurred. Plaintiff had no firsthand knowledge of the alleged incident involving Mr. McDonnell. At her deposition, plaintiff testified that she did not believe that Ms. Smith had any firsthand knowledge of the alleged incident. Plaintiff testified that FedEx couriers were only required to lift packages up to seventy-five pounds. The package purportedly left behind by Mr. McDonnell clearly exceeded any weight that Mr. McDonnell was required to lift. (Plf. Dep. at 357-59, 361, 363). Plaintiff's double hearsay regarding suspected misconduct by McDonnell is patently inadmissible. See Weberg v. Franks, 229 F.3d 514, 526 n. 13 (6th Cir. 2000); see also Lomax v. Sears, Roebuck Co., No. 99-6589, 2000 WL 1888715, at * 5-17, (6th Cir. Dec. 12, 2000).
Even if plaintiff could somehow overcome the evidentiary barriers to her statements, they would nonetheless fail to satisfy her burden. Although plaintiff argues in her brief that she and McDonnell shared the same manager, she provides no supporting evidence. She argues that she and McDonnell were subject to the same standards. She provides no supporting evidence. Most importantly, she provides no evidence of misconduct of comparable severity to her own misconduct. Mr. McDonnell, a courier, purportedly failed to move a very heavy package that plaintiff admits exceeded the weight of anything Mr. McDonnell was required to lift. Plaintiff provides no evidence regarding what happened to this heavy package. In contrast, plaintiff, an experienced customer service agent, deliberately closed the office for the day, knowing that the packages left behind in plain view inside the office would never reach their destination on time.
Plaintiff's brief identifies Fred Walker as a comparable. At her deposition, plaintiff stated that she had heard from an unidentified person at some unspecified time that a driver named Fred Walker left a van filled with packages and went home for the day. Plaintiff had no firsthand knowledge of the incident. There is no documentary evidence that such an incident ever occurred. At her deposition, plaintiff stated that defendant had terminated Walker's employment. (Plf. Dep. at 402). She expressed a belief that Walker had been able to obtain reinstatement through the appeal process. (Plf. Dep. at 402, 405). There is no evidence before the court that Walker was ever reinstated nor any evidence concerning any appeal he may have pursued. Once again, plaintiff's statements about what some unidentified person told her at some unknown time about an incident involving Mr. Walker are inadmissible hearsay. Assuming arguendo that plaintiff could somehow overcome this evidentiary problem, she would still fall short of establishing a prima facie case. There is no proof that she and Mr. Walker shared the same supervisor or were subject to the same standards. Plaintiff has not remotely supported her assertion that she and Mr. Walker engaged in misconduct of comparable severity.
Plaintiff argues that Mark Wild was a similarly situated employee, that he engaged in similar misconduct on September 15, 1997, and that he should have been discharged. Mr. Wild was a customer service agent. Mr. Wild and plaintiff shared the same supervisor. Plaintiff's brief sets forth an argument that on September 3, 1997, Mary Worstell issued a "duties list" to customer service agents that indicated that all agents were "responsible for scanning and sopping their documents [a]nd taking them to the belt." (Plf. Brief at 8-9). Plaintiff presents no evidence to support this bare assertion. Plaintiff contends that Mark Wild failed to adhere to this "duties list" and that she was blamed for his nonadherence. (Plf. Brief at 9). Plaintiff's argument is not supported by any evidence. Even if a duties list had existed, and Mr. Wild had neglected to carry out his own packages, any misconduct by Wild was fundamentally different in character from plaintiff's misconduct in deliberately closing the office knowing that a group of customer packages in plain view would not be delivered. Plaintiff has not presented evidence creating a genuine issue for trial on the fourth element of her prima facie case of race or sex discrimination. Plaintiff also contends that she was discharged in retaliation for prior EEO activity. This claim is subject to the same burden shifting analysis. In order to find a prima facie case of retaliation under Title VII, plaintiff must prove by a preponderance of the evidence that: (1) she engaged in activity protected by Title VII; (2) the exercise of her civil rights was known by the defendant; (3) thereafter, the defendant took an employment action adverse to plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action." Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000); see also Virostek v. Liberty Township Police Dep't, Nos. 99-3809, 99-3893, 2001 WL 549451, at * 7 (6th Cir. May 14, 2001); EEOC v. Avery Dennison Corp., 104 F.3d 858, 860 (6th Cir. 1997). "To establish the causal connection required in the fourth prong, a plaintiff must produce sufficient evidence from which an inference can reasonably be drawn that the adverse action would not have been taken but for the plaintiff's protected activity." Virostek, 2001 WL 549451, at * 7 (citing Nguyen, 229 F.3d at 563)). "In order to show a causal connection, a plaintiff must produce sufficient evidence from which an inference can be drawn that the adverse action would not have been taken but for" plaintiff's protected conduct. Allen, 165 F.3d at 413. Although no one factor is dispositive, the Sixth Circuit has identified "evidence that the defendant treated the plaintiff differently from identically situated employees or that the adverse action was taken shortly after the plaintiff's exercise of protected rights" as relevant factors. Id. "The mere fact that an adverse employment decision occurs after protected activity has taken place is not, standing alone, sufficient to support a finding that the adverse employment action was in retaliation for the protected activity." Askew v. United States Dep't of the Army, No. 96-1877, 1997 WL 681522, at * 2 (6th Cir. Oct. 30, 1997). Post hoc ergo propter hoc is not a rule of legal causation. See Abbott v. Federal Forge, Inc., 912 F.2d 867, 875 (6th Cir. 1990); see also Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir. 1997). The court cannot simply assume causation. Plaintiff's administrative charge mentioned a July 3, 1997 race discrimination charge she filed with the Department of Civil Rights. (Ex. 20).
Her brief in response to defendant's motion for summary judgment mentions a June 16, 1997 warning letter to plaintiff. (Plf. Brief at 7, docket # 135). In the absence of any further explanation and the total absence of supporting documents, the court will assume that the June warning letter and July 1997 administrative charge were related. Her disciplinary record (docket # 71, Ex. I) shows that on June 9, 1997, she received a warning letter for insubordination. Plaintiff presents no supporting evidence. Plaintiff fails to present any evidence on the second and fourth elements of her prima facie case. "The prima facie case is not the final inquiry, but rather the first prong of the analysis which defeats a motion for dismissal prior to trial." Id. at 861.
If the plaintiff is successful in proving her prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. McDonell Douglas v. Green, 411 U.S. 792, 802-03 (1973). If the defendant meets this burden, the plaintiff must then show that the defendant's articulated reason is a pretext for discrimination. Id.; Allen v. Michigan Dep't of Corrections, 165 F.3d 405, 409 (6th Cir. 1999). Assuming arguendo plaintiff had presented sufficient evidence to establish a prima facie case upon any of her claims, she did not and cannot overcome the defendants' legitimate, nondiscriminatory reason for her termination. "The defendant need not persuade the court that it was actually motivated by the proffered reasons. . . . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Burdine, 450 U.S. at 254. Defendant is in the business of overnight express delivery of packages. Defendant's legitimate, nondiscriminatory reason for firing plaintiff was plaintiff's admitted decision to leave packages behind when she closed the office for the day on September 15, 1997, knowing that the packages would not be delivered as Federal Express had promised. Defendant has satisfied its burden in this regard.
Plaintiff argues that defendant's proffered reason was pretextual. "A defendant's production of a legitimate, nondiscriminatory reason for termination not only rebuts the presumption of discrimination created by the plaintiff's prima facie case, but also invites summary judgment review of plaintiff's burden to show pretext." White v. Ohio, No. 99-4359, 2001 WL 69186, at *4 (6th Cir. Jan. 18, 2001). "Once the employer has come forward with a nondiscriminatory reason for firing the plaintiff . . . plaintiff must produce sufficient evidence from which a jury may reasonably reject the employer's explanation." Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 (6th Cir. 1994). "A plaintiff must do more than simply impugn the legitimacy of the asserted justification for her termination. . . ." Warfield v. Lebanon Correctional Inst., 181 F.3d 723, 730 (6th Cir. 1999). "To make a submissible case on the credibility of [an] employer's explanation, the plaintiff is required to show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate [her] discharge, or (3) that they were insufficient to motivate discharge." 29 F.3d at 1084. "Using the first or third method of rebuttal, if the plaintiff can show that `the defendant's proffered reasons either have no basis in fact or are insufficient to motivate discharge, a permissive inference of discrimination arises."` Nelson v. General Electric Co., No. 99-4043, 2001 WL 69201, at * 4 (6th Cir. Jan. 17, 2001) (quoting Kline v. Tennessee Valley Auth., 128 F.3d 337, 346 (6th Cir. 1997). Under the second method of rebuttal, the plaintiff "may not simply rely upon [her] prima facie evidence, but must, instead, introduce additional evidence of . . . discrimination." Manzer, 29 F.3d at 1084. "At all times, the plaintiff bears the ultimate burden of persuading the trier of fact that illegal discrimination took place." Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 883 (6th Cir. 1996) (citing Burdine, 450 U.S. at 253). Plaintiff presents the following "pretext" argument, set forth verbatim below:
Allegations and misrepresentations by Defendant were pretext reasons for Plaintiff's unlawful termination. The REAL reason for Plaintiff's termination was given ON BEHALF of "ALL" Managers, Personnel, Attorneys, and CEO for defendant by Chris Huber, Manager. Defendant OPENLY admitted plaintiff's Termination "because" she filed complaints and asserted her rights through internal grievances and EEOC she was not worth being an employee. (This is one of Defendant's "bad reason rules").
(Plf. Brief at 7, docket # 135). Similar statements appear elsewhere in plaintiff's brief:
Defendant's proffered reason for Plaintiff's termination is pretext because Chris Huber openly admitted that plaintiff was terminated because she engaged in protected activity. Defendant openly admitted that because of Plaintiff's asserting her rights through protected activity she was no longer welcome to be an employee. (Plf. Brief at 10). Plaintiff did not take Mr. Huber's deposition. There is no evidence in the record to support any purported "admission" by Mr. Huber. Plaintiff has not presented any evidence that any other employee's acts were of "comparable seriousness" to her own infraction yet failed to result in termination. See Caldwell, 181 F.3d at 730. Plaintiff has not presented any evidence upon which she could overcome defendant's legitimate, nondiscriminatory reason for terminating her employment.
Plaintiff makes conclusory statements on pages of her brief that she has presented direct evidence of discrimination. The court finds nothing to support plaintiff's bare claim of direct evidence of discrimination. It was in recognition of the rarity of cases where the plaintiff has direct evidence of discrimination that the Supreme Court adopted the McDonnell Douglas-Burdine burden of proof mechanism: a method allowing the plaintiff to prove her case through circumstantial evidence. See Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997) (citing United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)).
Conclusion
For the reasons set forth herein, defendant's motion for summary judgment (docket #108) will be granted.
JUDGEMENT
In accordance with the opinion filed this date:
IT IS ORDERED that defendant's motion for summary judgment (docket # 108) be and hereby is GRANTED, and judgment is hereby entered in favor of defendant on all of plaintiff's claims.