Hannah et al v. Fresenius USA Manufacturing, Inc.MEMORANDUM in Support of 98 MOTION for Summary Judgment as to Plaintiff Timothy WaireM.D. Tenn.January 22, 2019IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION DENNIS JEFFERSON, ROSEMARY WEBSTER AND TIMOTHY WAIRE, Plaintiffs, v. FRESENIUS MEDICAL CARE HOLDINGS, INC., A/K/A FRESENIUS MEDICAL CARE NORTH AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 3:17-cv-00697 Judge Campbell/Brown DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF TIMOTHY WAIRE Defendant, Fresenius Medical Care Holdings, Inc. (“Fresenius” or the “Company”), hereby submits its Memorandum in Support of its Motion for Summary Judgment as to Plaintiff Timothy Waire (“Waire”). Waire formerly worked as a Help Desk Desktop Support Specialist on the Applications team at Fresenius’ office in Nashville, Tennessee.1 Waire claims that he was denied a promotion because of his race (African American), subjected to racial harassment, and retaliated against, all in violation of 42 U.S.C. U.S.C. § 2000 et seq. (Title VII) and 42 U.S.C. § 1981. In particular, Waire alleges that he was denied a promotion based on his race when Dwight Lay (“Lay”), a User Security Administrator on the User Security team, was moved into a “team lead” role on the User Security team in September, 2015. However, contrary to Waire’s unsupported allegations, the undisputed facts of this case show that race played no part in Lay’s move to the team lead role. As set forth below, Waire cannot establish a prima facie failure to promote claim because he 1 Waire alleges his employer is Defendant, Fresenius Medical Care Holdings, Inc. In reality, Waire is employed by Renal Care Group, Inc. Nevertheless, solely for purposes of this Motion for Summary Judgment, Defendant is presenting Plaintiff’s version of events because, as set forth herein, Plaintiff’s claims fail as a matter of law irrespective of whether Fresenius Medical Care Holdings, Inc., or Renal Care Group, Inc., is his employer. Defendant is not, however, waiving its argument that it is not Waire’s employer and expressly reserves its right to defend against Plaintiff’s claims on that basis at a later time. Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 1 of 26 PageID #: 743 2 cannot show that he was qualified for the team lead role, that he applied and was considered for the role, or that he and Lay had similar qualifications at the time Lay was reclassified. Waire was not even a member of the User Security team – the group from whom Fresenius looked to identify the best candidate for progression to the team lead role – nor did he have the experience necessary to lead that team. Even if he could establish a prima facie case, the decision to move Lay to team lead was based on legitimate, non-discriminatory reasons. Namely, Lay stood out amongst his team members because of his tenure on the User Security team, his demonstrated positive performance and unsolicited positive feedback from clients, and the fact others on the team already recognized him as a leader. Waire simply cannot establish that Fresenius’ articulated and well-founded reasons were mere pretext for race discrimination. As such, his failure to promote claim fails as a matter of law and should be dismissed. Waire also alleges that he was harassed based on his race, but he has not articulated a factual or legal basis sufficient to support a viable harassment claim under either Title VII or 42 USC § 1981. The alleged harassment was neither severe nor pervasive, and for the most part, it was admittedly not even related to his race at all and cannot support his claim. Also, Waire cannot establish that Fresenius is liable for the alleged harassment. Thus, Waire’s racial harassment claims fail as a matter of law and should be dismissed. Finally, Waire alleges he was laid off in retaliation for complaining about race discrimination. However, the undisputed facts show that Fresenius’ decision to relocate and restructure its departments across different offices led to multiple layoffs, including the entire Applications team on which Waire worked. Waire simply cannot meet his prima facie burden of establishing that his layoff was causally related to the protected activity in which he engaged some fifteen months prior. Once again, even if he could set forth a prima facie retaliation claim, Waire cannot show that the legitimate, non-discriminatory reasons for the department-wide lay-offs were mere pretext for illegal retaliation. Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 2 of 26 PageID #: 744 3 For the reasons detailed below, Defendant is entitled to judgment as a matter of law as to all of Waire’s claims and Plaintiffs’ Third Amended Complaint (“Complaint”) should be dismissed in its entirety as to Waire. 2 SUMMARY OF FACTS3 A. Background Fresenius is a provider of products and services for individuals undergoing dialysis treatment because of chronic kidney failure. (Complaint, Doc 53 at ¶ 7-8). Waire worked as a help desk analyst on the Applications team from October 2012 until July 31, 2017. (SOF ¶ 60). Applications generally relates to providing support and assisting users with resolving issues they encounter with various computer programs. (Polk Dep., p. 54:19-24). On the other hand, user security generally relates to the procedures by which authorized users access those parts of a company’s computer systems that they are explicitly permitted to use and unauthorized users are kept from doing so. B. Waire’s Education And Work History Prior To Fresenius Waire is a high school graduate. (SOF ¶ 53). Following high school, he attended the Tennessee Technology Center of Murfreesboro, a two year technical school in Murfreesboro, Tennessee, from 2009 to 2011. (SOF ¶ 54). During that two year program, Waire obtained several IT certifications, including CompTIA’s entry-level A+ certification, CompTIA’s Network+ certification and a Microsoft Certified Professional certificate. (SOF ¶ 55). He received a technical diploma and understood his course work at TTC could apply toward college credit if he elected to pursue an Associates or Bachelor’s degree, which he did not. (SOF ¶ 56). Rather, in or about March 2011, Timothy Waire obtained his first IT-related job when he began working as a Help Desk Analyst for 2 While not addressed herein, Defendant is not waiving its argument that Plaintiffs have sued the wrong entity and Defendant is not the proper party to this lawsuit and is therefore not liable to Plaintiffs. 3 Solely for purposes of this Motion for Summary Judgment, Defendant presents only undisputed facts, or where the facts are disputed, Plaintiff’s version of the events. Defendant does not waive the right to present additional evidence or evidence that presents facts in a light most favorable to Defendant, as opposed to Plaintiff, if appropriate, at a later time. Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 3 of 26 PageID #: 745 4 a dialysis company called Renal Advantage, Inc. (“RAI”). (SOF ¶ 57). In that role, Waire answered after-hours calls, set up technicians to go to various clinics to fix issues, and configured routers. (SOF ¶ 58). C. Waire’s Work History With Fresenius While Waire was working for RAI, it was acquired by Fresenius. (SOF ¶ 59). As a result, Waire began working for Fresenius in or around October 2012. (SOF ¶ 59). At Fresenius, Waire worked as a help desk analyst on the Applications team. (SOF ¶ 60). Waire never worked on the User Security team. (SOF ¶ 61). Waire described his role on the Applications team as being “a glorified ticket handler” who “could not even reset a password at that point.” (SOF ¶ 62). As an Applications team member, Waire acknowledged he could only work on tickets that were within his scope and everything else he had to escalate to others. (SOF ¶ 63). On his 2013 review, Waire received a “3” rating and overall “developing” status4 from Stephen Hurley, his manager at the time. (SOF ¶ 64). On his 2015 review, Waire received a “3” rating in every category except one from Vice President of Product Services, Medi Servat, who conducted his review. (SOF ¶ 65). D. Need For User Security Team Lead Role In the fall of 2015, Fresenius determined it needed an additional team lead role on its User Security team to help account for anticipated changes in the User Security team manager’s responsibilities. (SOF ¶ 1). At the time, Sander Schambeck served as the User Security team manager and Anthony Whitehead served as the existing team lead. (SOF ¶ 2). Because the team lead position would be responsible for providing Tier II technical support to customers and assisting Tier I agents on the team with technical issues relating to user security, it was important that the team lead had demonstrated an advanced user security skill set, and a comprehensive understanding and enhanced 4 “Developing” is defined as: “On a leadership, technical and project completion basis, employee performs job tasks so as to generally meet expectations with some input from management and demonstrates capacity for further development in current job.” Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 4 of 26 PageID #: 746 5 knowledge of Fresenius’ user security landscape. (SOF ¶ 3). Initially, a job advertisement for the team lead role was posted on the Company’s intranet (a/k/a “FMC4ME”) and the Internet for about 24 hours. (SOF ¶ 4). The job posting for the team lead position stated that a “Bachelor’s Degree in Computer Science or equivalent experience” was required.” (SOF ¶ 5). While the job was posted, several external applicants applied, but Waire did not. (SOF ¶¶ 6, 76). The job posting was closed because a current User Security team member, Lay, had been identified to take on the team lead responsibilities. (SOF ¶ 7). The Company’s Employee Transfer and Internal Job Posting policy does not require “job transactions or vacancies” to be posted where a “retitle, reclassification, or re-grade of positions occupied by incumbents, and transfer or reorganization of responsibilities within or between departments” is involved. (SOF ¶ 8). E. Decision To Reclassify Dwight Lay As Team Lead Director of Production Support Services at the time, Joseph Dixon (African American),5 in consult with the User Security team manager, Sander Schambeck, looked to the individuals working on the User Security team to determine which of them would be the best fit to take on the responsibilities associated with the team lead role. (SOF ¶ 9). Dwight Lay was determined to be the best choice based on his years of service, job performance, skill set, and demonstrated leadership. (SOF ¶ 10). In particular, Lay had worked for Fresenius on the User Security team since October 2011, but had previously worked at Fresenius through a staffing agency since 2008. (SOF ¶ 11). He had received high ratings on his most recent performance review – an overall “1+” rating6 and “proficient” status. (SOF ¶ 12). He stood out because of unsolicited positive feedback Fresenius received about Lay from customers. (SOF ¶ 13). Also, without being asked, Lay had recently stepped 5 Mr. Dixon is deceased. (SOF ¶ 22). 6 The performance ratings are based on a 1-5 scale, with “1” being outstanding, “2” proficient, “3” developing, “4” needs improvement, and “5” unsatisfactory. Proficient is described as: “on a leadership, technical and project completion basis, employee has demonstrated performance that consistently exceeds expectations for the given year.” (SOF ¶ 23). Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 5 of 26 PageID #: 747 6 up and taken on some of the aspects of a team lead role while a manager was out on a leave of absence. (SOF ¶ 14). Other members of the team were already treating Lay as a team lead because of his technical and leadership skills and had been reaching out to him for Tier II technical guidance. (SOF ¶ 15). Indeed, according to one of Lay’s peers at the time, User Security Administrator Frederick Cornelius (“Cornelius”), Lay “knew everything about user security” and “knows the ins and outs of user security.” (SOF ¶ 16). Accordingly, Fresenius determined that, as part of Lay’s career progression, Lay should be the User Security team member to take on the additional team lead role. (SOF ¶ 18). Lay was reclassified to the team lead role, and Dixon announced the move (along with other organizational changes) via email on October 2, 2015. (SOF ¶ 19). Lay’s reclassification did not result in additional personnel to the User Security team. (SOF ¶ 20). Rather, as part of his individual career progression, his title changed and he continued performing the team lead duties he had previously been performing without being asked. (SOF ¶¶ 14, 15, 21). F. Fresenius’ Efforts To Prevent And Correct Discrimination And Harassment Fresenius’ commitment to providing all employees with a work environment free from all forms of discrimination, harassment and retaliation in the workplace is evidenced by the applicable policies it has published in its employee handbook and on the Company’s intranet (FMC4ME). (SOF ¶ 67). Fresenius enforces these policies by providing several mechanisms for workers to make complaints of perceived unfair treatment, including harassment, discrimination and retaliation, without fear of retaliation, so that an investigation can be conducted and Fresenius can take appropriate remedial action. (SOF ¶¶ 68, 69). Fresenius’ policies provide that any form of harassment, discrimination or retaliation should be immediately reported to any one of a variety of receiving parties, including, anyone in management or Human Resources, the immediate supervisor, the next level of supervision, the toll-free Employee Service Center line, or a Vice President of Human Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 6 of 26 PageID #: 748 7 Resources. (SOF ¶ 70). At the outset of his employment, Waire was provided with electronic access to FMC4ME, where he could access Fresenius’ anti-harassment and anti-discrimination policies and reporting procedures. (SOF ¶ 71). Waire utilized these reporting mechanisms when he reported his complaints to HR Manager, Gina Elyazar. (SOF ¶¶ 72, 73). G. Waire’s Complaint And Harassment Allegations On March 1, 2016, Waire emailed Fresenius’ Human Resources Manager, Gina Elyazar, to inform Human Resources, for the first time during his employment with Fresenius, that he felt discriminated against with regard to Dwight Lay’s promotion to team lead and promotion opportunities. (SOF ¶ 72). On March 8, 2018, Elyazar spoke with Waire about his emailed complaints, and during their conversation, Waire raised additional concerns about comments made by Gina Foster (“Foster”) and Tony Whitehead (“Whitehead”). (SOF ¶ 73). When Waire joined Fresenius, he worked with Foster, a coworker on the Applications team, and Whitehead who was a non-management member of the User Security team. (SOF ¶ 74). At some point, Foster and Whitehead were promoted to team leads on their respective teams. (SOF¶ 75). Waire alleges that over the course of his employment with Fresenius, he was “made fun of” over a variety of things – “I’ve been harassed and ridiculed, made fun of for my sexual orientation, made fun of for my skin tone, made fun of because of my hair, made fun of because of my age.” (SOF ¶ 80). According to Waire, Whitehead did not like Waire’s personality or privileged upbringing. “[Tony Whitehead] told Dennis that I grew up with a silver spoon in my mouth, and I need to get beat up one good time - - well, not beat up; he said I need to get my A kicked one good time. So, it’s like that’s the type of things that I had to deal with…” (SOF ¶ 81). “I actually avoided Tony as much as I could, as possible, because I would see the looks that he would give me. I mean, it’s not like I tried to walk or tread softly with my personality. I’m happy-go-lucky. I’m usually bubbly. And people don’t like that. And he was just one of those people that didn’t like it.” (SOF ¶ 82). Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 7 of 26 PageID #: 749 8 Waire described his interactions with Whitehead as follows: “I mean, I was sitting at my desk one day, and [Whitehead] comes up behind me and he just pushes his whole body into me, forcing me into the desk. And I’m on the phone with a client. How professional is that? …That is just flat- out harassment. While calling me ‘cocksucker’ and talking about my hair and my work performances. He’s always tried to belittle me.” (SOF ¶ 83). “Tony would still harass me…it was several times I - - like gotten up to go to the restroom, and he was like walking behind me like he was going to like push me into a wall or something like that.” (SOF ¶ 84). Waire described his interactions with Foster as follows: “Gina walked up to me while I was working and pulled the earphone out of my head…she is just bullying me at this point.” (SOF ¶ 85). “I’m on the phone, and - - you know, you can’t see what’s going on behind you while you when you’re working. And Gina Foster - - she’s - - I talk with my hands. So she would be back there, you know, portraying like she’s me, making fun of me, things of that nature.” (SOF ¶ 85). “Gina would walk through and cut her eyes at me.” (SOF ¶ 85). Waire also alleges that Foster made the following comments: “Your hair reminds me of road kill”, “You switched your hair; it makes my skin crawl.” “I dated a black man once.” (SOF ¶ 86). Waire testified he cannot remember when Foster made those comments, but believes they occurred sometime between 2013 and 2016. (SOF ¶ 87). Waire also alleges that Foster and Whitehead sent a coworker, Matt Patrone, over to bother him, “Instead of them putting [Patrone] where he was hired for, to be, they put him on applications with us. And he made everyone uncomfortable.” (SOF ¶ 88). Waire complained that Patrone engaged in “crazy outlandish conversation” and “he would drool, like all over your desk, or - - and he would get snot all over the place.” (SOF ¶ 89). Waire testified that in late 2016, he started working remotely due to his issues with Patrone, who was, as Waire described, “the straw that broke the camel’s back.” (SOF ¶ 90). Despite his alleged work environment, Waire believes he was “a great employee” was “very proficient” and “had the best stats” up until the time he was laid off in July 2017. (SOF ¶ 91). Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 8 of 26 PageID #: 750 9 H. Fresenius’ Efforts To Correct Conduct Based on the complaints Elyazar received from Waire and others, she conducted an investigation and interviewed “everyone in the office”. (SOF ¶ 92). After concluding its internal investigation, Foster and Whitehead each received written warnings and, on or about April 11, 2016, Fresenius informed Waire and others via email that Foster and Whitehead were being demoted from their respective team lead positions. (SOF ¶ 93-94). Fresenius also held a training session at the Nashville office to review Fresenius’ anti-discrimination policies, its expectations of showing respect in the workplace as well as how to view and apply for job openings. (SOF ¶ 95). During his deposition, Waire could not point to any further specific racial comments or incidents that occurred after the Company investigated his complaints and demoted Foster and Whitehead. (SOF ¶ 96). I. Waire’s Employment Ends In Connection With Organizational Changes Sometime after Waire made an internal discrimination complaint in March 2016, a former coworker who had become a manager of Fresenius Rx contacted Waire to encourage him to apply for a new position she was creating. (SOF ¶ 97). Waire forwarded his resume and spoke to a hiring manager, but Waire “didn’t express any excitement – any excitement in the position” and he did not pursue it further. (SOF ¶ 98). In or about October 2016, the entire Generalist department in Nashville was outsourced and its team members were laid off as a result. (SOF ¶ 99). In late summer of 2017, Waire and at least two other Application team members working in the Nashville office were laid off when their jobs were required to be “centrally relocated with the manager of the department in Waltham, Massachusetts.” (SOF ¶ 100). Another IT department, the eCube Support team, was also dissolved as part of the restructuring. (SOF ¶ 101). Waire’s last day of employment with Fresenius was on July 31, 2017. (SOF ¶ 102). ARGUMENT Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 9 of 26 PageID #: 751 10 I. Legal Standards Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To avoid summary judgment, the non-moving party must “go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial.” Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th Cir. 2002) (citations omitted). In that regard, the “mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Shah v. Racetrac Petroleum Co., 338 F.3d 557, 566 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986)). Evidence that is “merely colorable” or “not significantly probative” will not prevent summary judgment. Anderson, 477 U.S. at 249. Plaintiffs’ pro se status does not afford them any special assistance in responding to Defendant’s summary judgment motion. Rather, those who proceed without counsel must still comply with the procedural rules that govern civil cases. McNeil v. United States, 508 U.S. 106, 113 (1993). “[P]ro se plaintiffs are not automatically entitled to take every case to trial .... [and] ‘the lenient treatment generally accorded to pro se litigants has limits.’” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.1996) (quoting Jourdan v. Jabe, 951 F.2d 108, 110, (6th Cir.1991)); see also, Combs v. Taylor Cnty. Det. Ctr., 2013 U.S. Dist. LEXIS 63564, at *2 (W.D. Ky. May 3, 2013) (same). The Sixth Circuit has held that there is no requirement to provide non-prisoner pro se litigants the benefit of special assistance with respect to summary judgment motions. Brock v. Hendershott, 840 F.2d 339, 342-43 (6th Cir.1988). The court in Brock decided to afford pro se non-prisoner litigants no special assistance “out of a sense of fairness to other parties who choose counsel and must bear the risk of Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 10 of 26 PageID #: 752 11 their attorney's mistakes. Thus, a litigant who chooses himself as a legal representative should be treated no differently.” Id. (quoting Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir.1986) (internal quotation marks omitted)); see also Bass v. Wendy's of Downtown, Inc., 2013 WL 2097359, at *2 (6th Cir. May 16, 2013) (“[N]on-prisoner pro se litigants are treated no differently than litigants who choose representation by attorneys.”). II. Waire’s Failure To Promote Claim Fails As A Matter Of Law As set forth below, Waire’s claim for race discrimination under both Title VII and 42 U.S.C. §1981 fails as a matter of law because Waire cannot satisfy the threshold requirement of establishing the second, third and fourth elements of a prima facie case of unlawful discrimination. In other words, Waire cannot show that he applied for and was qualified for a promotion, that he was considered for and was denied the promotion, or that he and Lay were similarly qualified. Even if Waire could meet his burden of establishing a prima facie failure to promote claim, he cannot show that Fresenius’ legitimate, non-discriminatory reasons for selecting Lay for the team lead role were pretextual. Race played no part in Fresenius’ decision, and Waire cannot point to any admissible evidence to the contrary. A. Waire Cannot Establish A Prima Facie Failure To Promote Claim Under Sixth Circuit law, in order to establish a prima facie case of race discrimination based on a failure to promote claim, a plaintiff must show that: “(1) he is a member of a protected class; (2) he applied for and was qualified for a promotion; (3) he was considered for and was denied the promotion; and (4) an individual of similar qualifications who was not a member of the protected class received the job at the time plaintiff’s request for the promotion was denied.” White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir. 2005).7 Here, Waire fails to meet the second, third 7 It is well settled that the standards for claims brought under Title VII and § 1981 mirror one another and apply the same standards. See, e.g., Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir. 1999) (citations omitted) (“We review claims of alleged race discrimination brought under § 1981…under the same standards as claims of race discrimination brought Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 11 of 26 PageID #: 753 12 and fourth elements. 1. Waire Did Not Apply Nor He Was Considered For And Denied The Team Lead Role Waire cannot establish the second or third element of his prima facie case – i.e., that he applied for and was considered and denied the team lead role. The team lead role for the User Security team was posted for about twenty-four hours. (SOF ¶ 4). During that time, several external applicants applied, but Waire did not. (SOF ¶ 6, 76). As set forth above, Waire worked on the Applications team throughout his employment with Fresenius; he never worked on the User Security team – the group from whom Fresenius looked to identify the best candidate for progression to the team lead role. (SOF ¶¶ 9, 60, 61). Accordingly, he cannot show that he “was considered for and was denied the promotion.” 2. Waire And Lay Did Not Have ‘Similar Qualifications’ “It is insufficient for a plaintiff in a failure to promote [discrimination] case merely to point to [a non-protected person] who received the job in satisfying the fourth prong” of a prima facie case. Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 814 (6th Cir. 2011) (quoting White, 429 F.3d at 241). Instead, “it is incumbent upon the plaintiff to establish that she and the non-protected person who ultimately was hired for the desired position had similar qualifications.” Id. Waire certainly cannot show that he and Lay had similar qualifications. Lay was an experienced User Security Administrator and top performer on that team, who had worked for Fresenius on the User Security team since October 2011, but had previously worked at Fresenius through a staffing agency since 2008. (SOF ¶ 11). Lay also had high performance review scores, had proactively taken on aspects of the team lead role in his manager’s absence, had been the subject of unsolicited positive customer feedback that set under Title VII.”); Evans v. Toys R Us, Inc. 2000 WL 761803, *8 (6th Cir. June 2, 2000) (citing Harris v. Roadway Express, Inc., 923 F2d 59, 61 (6th Cir. 1991) (“It is well-settled in this circuit that claims arising under both §1981 and Title VII carry the same standards of proof.”). Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 12 of 26 PageID #: 754 13 him apart from other USAs, and had the demonstrated advanced user security technical skill set and comprehensive understanding of Fresenius’ user security landscape. (SOF ¶ 10, 12-15). Waire, on the other hand, obtained his first IT-related job in 2011, had a shorter overall tenure with Fresenius than Lay, had not worked at all as a member of the User Security team, and described his role on the Applications team as being “a glorified ticket handler” who “could not even reset a password at that point.”8 (SOF ¶¶ 57, 59, 61, 62). Waire even admits that his “issue” with Lay being reclassified to team lead is not about whether Lay deserved the job or whether Waire was more qualified for it, but rather the process by which Lay was selected. (Waire Dep at p. 148:19 – 150:10). Given Lay’s “superior experience in material and relevant respects”, Waire cannot meet the fourth prong of his prima facie burden and his claim fails in that regard. See, White v. Columbus Metropolitan Housing Authority, 429 F.3d 232, 244 (6th Cir. 2005). B. Fresenius Selected Lay For Legitimate, Non-Discriminatory Reasons If a plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. White, 429 F.3d. at 238. The Supreme Court has specifically rejected a requirement that employers, “prove absence of discriminatory motive” and affirmed that employers need only “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Bd. of Trustees of Keene State Coll. v. Sweeney, 439 U.S. 24, 25 (1978) (citation omitted). “This is merely a burden of production, not of persuasion, and it does not involve a credibility assessment.” Upshaw v. Ford Motor Co., 576 F.3d 576, 585 (6th Cir. 2009). Fresenius has articulated a legitimate reason for selecting Lay to be team lead: Lay was 8 In comparison, according to one of Lay’s peers at the time, User Security Administrator Frederick Cornelius, Lay “knew everything about user security” and “knows the ins and outs of user security.” (SOF ¶ 16). Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 13 of 26 PageID #: 755 14 deemed to be the most qualified person for the job based on his tenure as an employee on the User Security team, his job performance, the unsolicited positive feedback his managers had received from customers about Lay’s job performance and because other members of the team were already reaching out to Lay for Tier II technical guidance because of his demonstrated technical and leadership skills. (SOF ¶¶ 10-16). “Hiring a more qualified candidate certainly suffices as a legitimate, non- discriminatory rationale for denying [plaintiff] the promotion.” Williams v. Columbus Metropolitan Housing Auth., 90 Fed. Appx 870, 873 (6th Cir. 2004). See also, Sutherland v. Michigan Dept. of Treasury, 344 F.3d 603, 616 (6th Cir. 2003) (employer’s decision to offer position to candidate who received higher total score than plaintiff was legitimate, non-discriminatory reason). C. Waire Cannot Show That Fresenius’ Legitimate, Non-Discriminatory Reason Was Pretextual If the employer articulates a legitimate, non-discriminatory reason for its action, the burden shifts back to the plaintiff who must then “prove by a preponderance of the evidence that the employer’s proffered reason was in fact a pretext designed to mask illegal discrimination.” Hein v. All Am. Plywood Co., 232 F.3d 482, 489 (6th Cir. 2000); Braithwaite v. Dept. of Homeland Security, 2012 WL 975069 at *5 (6th Cir. Aug 23, 2013). The plaintiff can establish pretext by showing one of three things about the offered reason: (1) that it had no basis in fact; (2) that it did not actually motivate the decision at issue; or (3) that it was insufficient to justify the reason. Braithwaite, 2012 WL 975069 at *5 (citing Briggs v. Potter, 463 F.3d 507, 515 (6th Cir. 2006). A trier of fact may not reject an employer’s explanation unless there is a sufficient basis in the evidence for doing so. Upshaw, 576 F.3d at 586. “A reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.” Logan v. Denny’s, Inc., 259 F.3d 558, 574-75 (6th Cir. 2001) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). “The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 14 of 26 PageID #: 756 15 discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). In this third stage, “the presumption of discrimination is gone and the plaintiff must demonstrate that the employer’s proffered nondiscriminatory reason was not the true reason for the employment decision, but rather a pretext for discrimination.” Provenzano, 663 F.3d 806 (citing Texas Dept of Comm’y Affairs v. Burdine, 450 U.S. 248, 256 (1981)). In considering Lay and Waire’s qualifications, “[r]elative qualifications establish triable issues of fact as to pretext where the evidence shows that either (1) the plaintiff was a plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former, or (2) plaintiff was as qualified as if not better qualified than the successful applicant, and the record contains other probative evidence of discrimination.” Scola v. Publix Supermarkets, Inc., 557 F. App'x 458, 469–70 (6th Cir. 2014). Here, Waire cannot meet either showing. Indeed, while under oath during his deposition, Waire conceded that he could not argue that he was more qualified or even as qualified as Lay to be team lead. Rather, Waire only expressed his disagreement with the process by which Lay was selected. Q: … Do you think [Lay] was qualified for the team lead position on the user security team? A: Again, it’s causing me to speculate, because I’m not in management; I can’t make that decision… I can’t say, “I don’t feel like he deserves to be there; I should be there… Q: Okay. So – so you’re – you’re not saying that you should have gotten the position instead of Dwight Lay? A: I’m saying management dropped the ball. Management should have followed proper policies, posted a position, allowed others to apply, whoever they wanted – whoever wanted to apply. Everyone should have had interviews. It should have been a legit posting. Q: Okay. So – so your issue – your issue with the promotion, or your complaint about the promotion, is not that you think you should have gotten it instead of Dwight Lay; it’s more with the process? A: It’s more so with management. Management dropped the ball. (Waire Dep at p. 148:19 – 150:10). Waire cannot establish pretext merely by pointing to his disagreement with the “process.” In Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 15 of 26 PageID #: 757 16 particular, in the Complaint, Waire claims Fresenius blocked the job posting or removed the “job link” before the “five day job posting policy.” (Complaint, ¶ 10). This argument fails. First, given that the team lead role resulted from a retitle, reclassification or re-grade of a position held by an incumbent (Lay) and arose out of a transfer or reorganization of responsibilities within the department, it was not necessary nor required under the Company’s policy to keep the posting active for five days as is typically done for vacant positions. (SOF ¶¶ 8, 19). Secondly, even if Waire could establish that this team lead role should have been posted for a full five days under Fresenius’ internal policy (which he cannot), “an employer’s failure to follow self-imposed regulations or procedures is generally insufficient to support a finding of pretext.” White, 429 F.3d at 246 (citing Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996); Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995). Secondly, Defendant anticipates Waire will attempt to show that pretext by arguing that Fresenius used inconsistent educational requirements, generally. (See Complaint, ¶ 13, 17). The job posting for the team lead position, however, stated only that a “Bachelor’s Degree in Computer Science or equivalent experience” was required. (SOF ¶ 5) (emphasis added). There is no admissible evidence that Waire’s lack of a college education somehow prevented him from being selected for the team lead position on the USA team. (SOF ¶ 56) Waire cannot show that Fresenius’ reasons for determining that Lay was the best USA team member to serve in the role of team lead on that team were a pretext for race discrimination. Waire’s failure to promote claim fails as a matter of law. III. Waire’s Racial Harassment Claims Fail As A Matter Of Law Waire’s claims that he endured a race-based hostile work environment in violation of Title VII and 42 U.S.C. § 1981 likewise fail. To prove his racial harassment claim, Waire bears the burden of showing that: (1) he was a member of a protected class; (2) he was subject to unwelcome racial harassment; (3) the harassment complained of was based on race; (4) the harassment unreasonably Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 16 of 26 PageID #: 758 17 interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the employer is liable. Barrett v. Whirlpool Corp., 556 F.3d 502 (6th Cir. 2009)(citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Ci. 1999). Waire’s claims fail on the third, fourth and fifth elements. For these reasons, his racial harassment claims fail as a matter of law. A. Waire Alleges Harassment That Was Not Based On His Race Much of the commentary and behavior Waire claims Foster and Whitehead engaged in is not at all related to Waire’s race or is at best, ambiguous. Waire testified that he was harassed about a variety of things, including his sexual orientation and youth. (SOF ¶¶ 80, 82). He also stated that Whitehead did not like his personality and thought he “grew up with a silver spoon in [his] mouth.” (SOF ¶¶ 79, 81). Accordingly, Waire, himself, attributes the alleged harassment to factors other than race. The only comments that were even arguably race-related Waire alleges were made pertained to Foster’s two comments about his hair, and her statement that she once dated a black man. (SOF ¶ 86). The latter, while perhaps an unnecessary comment, does not evidence harassment. Waire was unable to identify any race-specific comment or behavior by Whitehead, other than to say he talked about his hair. (SOF ¶¶ 81-83). As the Sixth Circuit has held, a racial…hostile work environment claim is cognizable only if the purported harassment, viewed in conjunction with all of the circumstances, occurred because of the employee’s race...” Farmer v. Cleveland Public Power, 295 F.3d 593, 605 (6th Cir. 2002) (citations omitted). Given that Foster and Whitehead’s comments or behavior were not related to Waire’s race, they certainly do not demonstrate actionable racial harassment. B. The Alleged Harassment Was Not Severe Or Pervasive For the alleged harassment to be actionable, a plaintiff must show “the conduct in question was severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and that the victim subjectively regarded it as abusive.” Smith v. Leggett Wire Co., 220 Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 17 of 26 PageID #: 759 18 F.3d 752, 760 (6th Cir. 2000) (citations omitted). Such an environment can only be found to exist when ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult … that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Farmer, 295 F.3d at 605 (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993)). Waire cannot show the alleged harassment, even if it was race-based, was severe or pervasive. Waire’s allegations about the comments Foster made about his hair, for instance, is clearly not the type of “discriminatory intimidation, ridicule, and insult” that Title VII or 42 U.S.C. 1981 encompass.9 When determining whether conduct is severe or pervasive enough to constitute a hostile work environment, courts consider, “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000) (quoting, Harris, 510 U.S. at 23). The severity of the harassment is evaluated from the perspective of a reasonable person in the employee’s shoes, considering the totality of the circumstances. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). “Conduct must be extreme to amount to a change in the terms and conditions of employment…” Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998). “[S]imple teasing, … offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Id. (internal citation and quotation marks omitted). In Fueling v. New Vision Medical Laboratories, LLC, 284 Fed. Appx. 247 (6th Cir. 2008), the Sixth Circuit held that the plaintiff was not subjected to a racially hostile work environment despite evidence that the plaintiff was subjected to racial slurs including “white bitch,” “f—king white bitch,” 9 See also, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998)(positing that federal employment discrimination laws have created no “general civility code for the American workplace,” but instead proscribe only discrimination for statutorily specified reasons). Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 18 of 26 PageID #: 760 19 “white trash,” “cracker,” and “vanilla wafer,” and employees also used other “racial language” in her presence including “n****r,” and “stupid f—king Mexican wetback spic,” because these comments were “merely offensive.” In Dotson v. Norfolk Southern Railway Co., 52 Fed. Appx. 655 (6th Cir. 2002), the Sixth Circuit held that the conduct alleged by the plaintiff, including disparate discipline based on race, failure to promote based on race, not being allowed to sit at the front desk based on race, persistent use of the initials “KKK” on work documents, harsh treatment by coworkers, and calling the plaintiff allegedly racial terms such as “ungawa” and “tar baby,” did “not rise to the type regarded by [the Sixth] Circuit as severe or hostile.” Id.10 Like the conduct at issue in Dotson and Fueling, the alleged race-related comments upon which Waire bases his hostile work environment claim do not rise to the level of actionable harassment. Waire’s testimony that Foster made three comments he contends were race related and that Whitehead once “talked about my hair” over a four year period from 2013 to 2016, clearly does not constitute severe or pervasive harassment. (SOF ¶¶ 83, 86-87). None of these alleged comments involved racial slurs, and while they may have been racially insensitive, the comments did not create an intolerable work environment. Further, Waire admits that despite the alleged harassment, he believes he was “a great employee” was “very proficient” and “had the best stats” up until the time he was laid off in July 2017. (SOF ¶ 91). Thus, Waire’s allegations of harassment come nowhere 10 See also, Lovelace v. BP Products N.A., Inc., 252 Fed. Appx. 33 (6th Cir. 2007)(no racially hostile work environment where plaintiff was told to wear a hairnet due to customer complaints whereas non-minority employees were not, coworker told plaintiff her son “had never seen a black person before” and her husband had commented that an African American woman was “pretty to be so dark,” coworker commented that “black people smelled funny,” coworker allegedly referred to a customer has a “dumb n----r,” and the plaintiff had a series of verbal skirmishes with coworkers she accused of being racist) citing Bowman, 220 F.3d at 463 (holding five incidents of racial harassment, three of which were “not merely crude, offensive, and humiliating, but also contained an element of physical invasion” did not constitute severe or pervasive conduct); Clay v. United Parcel Service, Inc., 501 F.3d 695, 708 (6th Cir. 2007)(holding harassment complained of by the plaintiff, including 15 specific incidents over a two year period, “did not rise to the level of severity or pervasiveness that would unreasonably interfere with her ability to work” and the incidents were for the most part “mere offensive utterances”); Bourini v. Firestone North American Tire, LLC, 136 Fed. Appx. 747, 751 (6th Cir. 2005)(Muslim employee from Jordan not subjected to objectively hostile or abusive working environment despite being called a “camel jockey,” told to “get the sand out of [his] ears,” witnessed slurs painted on the bathroom stalls concerning Islam, alleged a coworker attempted to run over him with a forklift following the September 11th attacks, witnessed his voice being mocked over the company intercom system, was proselytized and advised to learn about immigration laws). Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 19 of 26 PageID #: 761 20 close to meeting his burden of showing he was subjected to an environment so “severe or pervasive” as to alter the conditions of his employment.11 C. Fresenius Is Not Liable For Alleged Harassment Fresenius is also entitled to summary judgment as to Waire’s hostile work environment claim because Waire cannot establish that Fresenius is liable for the alleged conduct by Foster or Whitehead, who were acting as his coworkers,12 or alternatively, because Fresenius has established the affirmative defense set forth in Faragher, 524 U.S. 775 and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). “Under Title VII, “[i]f the harassing employee is the victim’s coworker, the employer is liable only if it was negligent in controlling working conditions” – that is, if the employer knew or should have known of the harassment yet failed to take prompt and appropriate corrective action.” EEOC v. AutoZone, Inc., 692 Fed. Appx. 280 (6th Cir. 2017) (citing Vance v. Ball State Univ., 133 S.Ct. 2434, 2439-42 (2013)). Here, Waire cannot show that Fresenius failed to take appropriate corrective action once it learned of the alleged harassment. The opposite is true, as Waire acknowledges Fresenius acted quickly to investigate his complaints and thereafter demoted the alleged harassers and reiterated its anti-discrimination policies through department-wide training. (SOF ¶¶ 92, 94-95). Even if Foster and Whitehead were deemed to have engaged in supervisor harassment (which they did not), 13 an employer is entitled to summary judgment on that element when it establishes the 11 Waire testified that his conflict with and fear of coworker, Matt Patrone, led him to seek a leave of absence in late 2016, not racial harassment. (SOF ¶ 90). 12 Waire alleges that he was harassed by Gina Foster, his coworker who became his team lead and then was demoted back to being his coworker. (SOF ¶¶ 74-75, 94) He also alleges harassment from Tony Whitehead, who was the team lead for a different department before he was also demoted back to coworker status. (SOF ¶ 74-75, 94). However, while Foster and Whitehead were team leads, they did not act as Waire’s supervisors, as Whitehead was in a different department altogether and neither Foster nor Whitehead were empowered to take tangible employment actions as to Waire. (SOF ¶¶ 74, 141). 13 “[A]n employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.” Vance, 133 S.Ct. at 2439. “Tangible employment actions are those that “effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” AutoZone, 692 Fed. Appx. at 283 (citing Vance, 133 S.Ct. at 2443)). An individual’s ability to direct the victim’s work or a title, such as “store manager,” does not make the person the victim’s supervisor for purposes of Title VII. Id., see, e.g., Noviello v. City of Bos., 398 F.3d 76, 96 (1st Cir. 2005)(shift supervisor not a supervisor under Title VII); Reynaga v. Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 20 of 26 PageID #: 762 21 affirmative defense articulated by the Supreme Court in Faragher and Ellerth. See Faragher, 524 U.S. 775; Ellerth, 524 U.S. 742. Under Faragher and Ellerth, a defendant may raise a defense to a hostile work environment claim “comprised of two elements: (a) that the employer exercised reasonable care to prevent and correct promptly any … harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” Collette v. Stein-Mart, Inc., 126 Fed. Appx. 678, 682 (6th Cir. 2005)(citing Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 808). It is undisputed that Fresenius has established these elements. 1. Fresenius Exercised Reasonable Care To Prevent And Correct Racial Harassment In The Workplace In Collette, 126 Fed. Appx. 678, the Sixth Circuit held that the first element of Faragher and Ellerth was established when it was “uncontested that [the employer] had policies explicitly prohibiting workplace harassment and that it distributed materials informing the employees of these policies.” Here, it is undisputed that Fresenius had implemented and disseminated their anti- discrimination and anti-harassment policies, including reasonable reporting procedures, to its employees, including Waire. (SOF ¶¶ 67-71). By taking these steps, Fresenius exercised reasonable care to prevent and correct harassment and discrimination in the workplace. As such, Fresenius has established the first element of the affirmative defense as a matter of law. 2. Fresenius Took Prompt And Appropriate Remedial Action Regarding Waire’s Allegations Of Racial Harassment Fresenius’ anti-harassment and reporting policies were effective, as demonstrated by the company’s appropriate and prompt response to Waire’s March 2016 internal complaint that he was subjected to racial harassment by Foster and Whitehead. (SOF ¶ 73). Therefore, Fresenius is not Roseburg Forest Prod., 847 F.3d 678, 689 (9th Cir. 2017)(lead millwright not a supervisor); Chavez v. Acosta v. Sw. Cheese Co., 610 Fed. Appx 722, 730 (10th Cir. 2015)(member of the leadership hierarchy not a supervisor). Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 21 of 26 PageID #: 763 22 liable for any allegedly harassing behavior by Foster or Whitehead. “In hostile workplace cases, the employer can avoid liability for its employees’ harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.” Tutman v. WBBM-TV, Inc. / CBS, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000)). No one set approach is mandated by the laws on how an employer should respond to a harassment complaint. Instead, courts examining an employer’s response look at “whether the action reasonably served to prevent future harassment of the plaintiff.” Bellamy v. Fritz, et. al., 129 Fed. Appx.245, 249 (6th Cir. 2005); see also, Bell v. Chesapeake & Ohio Ry. Co., 929 F.2d 220, 224 (6th Cir. 1991) (“Plainly, an appropriate corrective response will vary according to the frequency and severity of the alleged harassment.”) Generally, a response is adequate if it is “reasonably calculated to end the harassment.” Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013). In this case, upon learning of Waire’s allegations concerning Foster and Whitehead on or about March 8, 2016, Fresenius promptly conducted interviews and investigated those complaints. (SOF ¶¶ 73, 92, 94). Fresenius also held a training session at the Nashville office to review the Company’s anti-discrimination policies and to address respect in the workplace as well as how to view and apply for job openings. (SOF ¶ 95). Upon conclusion of the investigation, Foster and Whitehead each received written warnings and both were demoted from their team lead positions in April, 2016. (SOF ¶¶ 93-94). According to Waire’s deposition testimony, there were no additional racial comments or specific incidents of race-related harassment following Foster and Whitehead’s warnings and demotions in April 2016, nor did he make any report of same. (SOF ¶ 96). Thus, Fresenius, in fact, took prompt and appropriate remedial action in response to Waire’s allegations of racial harassment. IV. Waire’s Retaliation Claims Fail As A Matter Of Law Waire also contends that Fresenius is liable under Title VII and 42 U.S.C. § 1981 for Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 22 of 26 PageID #: 764 23 retaliation because, as part of Fresenius’ restructuring process, he along with several others were laid off nearly 15 months after Waire filed his EEOC Charge. (See, Waire Dep. at Ex. 13). Absent direct evidence of retaliation, as is the case here, retaliation claims are subject to the same McDonnell Douglas burden-shifting framework as discrimination claims. Jones v. Johanns, 264 Fed. Appx. 463, 466 (6th Cir. 2007). That is, if a plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action, after which the plaintiff must demonstrate that the proffered reason was a mere pretext for what was actually an improper motive. Id. at 466-67 (citing Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 542 (6th Cir. 2003)). The ultimate burden of persuasion always remains with the plaintiff. Id. (citing St. Mary’s Honor Ctr., 509 U.S. at 507). A. Waire Cannot Establish A Prima Facie Retaliation Claim To establish a prima facie case of retaliation, Waire must show (1) he engaged in activity protected by Title VII; (2) his exercise of such protected activity was known by defendant; (3) thereafter defendant took an action that was “materially adverse” to the plaintiff; and (4) a causal connection exists between the protected activity and the adverse employment action. Jones, 264 Fed. Appx. at 466. The Supreme Court has addressed the proof required for the fourth prong, stating that 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, 133 S. Ct. 2517, 2533 (2013). Waire cannot show the fourth element of the prima facie case – that ‘but for’ his engaging in protected activity, Waire would not have been laid off. As referenced above, Waire was laid off in July 2017, in connection with significant organizational changes affecting the IT department. (SOF ¶ 99-102). In or about October 2016, the entire Generalist department in Nashville was outsourced and its team members, were laid off. (SOF Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 23 of 26 PageID #: 765 24 ¶ 99). Then, in late summer of 2017, Waire and at least two other Application team members working in the Nashville office were laid off when the Applications team was required to be “centrally relocated with the manager of the department in Waltham, Massachusetts.” (SOF ¶ 100). Another IT department, the eCube Support team, was also dissolved as part of the restructuring. (SOF ¶ 101). Waire has no evidence to indicate that his layoff was in anyway related to the EEOC Charge he filed some fifteen months prior, much less that his protected activity was the ‘but for’ cause of his layoff. Further, the Sixth Circuit has discussed whether temporal proximity can be enough to establish causation. For instance, the Court has held that an adverse action occurring fourteen months after engagement in a protected activity will not, by itself, give rise to an inference of retaliation. Brown v. Chase Brass & Copper Co., Inc., 14 Fed. Appx. 482 (6th Cir. 2001). See also, Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986)(“The mere fact that Cooper was discharged four months after filing a discrimination claim is insufficient to support an inference of retaliation.”); Brown v. Mark, 709 F.2d 1499 (6th Cir. 1983)(three month separation between protected activity and termination did not raise the inference necessary to support a prima facie case of retaliation). Here, where Waire continued to work for fifteen months after filing his EEOC charge, he cannot argue there is sufficient temporal proximity by which to establish causation. For these reasons, he fails to set forth a prima facie case of retaliation. B. Waire Cannot Establish Fresenius’ Legitimate Non-Discriminatory Reason Is Pretext For Retaliation However, even if Waire is somehow deemed to have met his burden of establishing a prima facie case, Fresenius has provided a legitimate, non-discriminatory reason for Waire’s termination: i.e. Waire’s position was eliminated in connection with organizational changes affecting his department. Thus, the burden falls back to Waire to establish that reasoning is pretextual. Once again, “[a] plaintiff can demonstrate pretext by showing that the proffered reason (1) has no basis in fact; (2) did not actually motivate the defendant’s challenged conduct; or (3) was Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 24 of 26 PageID #: 766 25 insufficient to warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000). Waire testified that he believes his layoff was pretext for retaliation because: (1) another Fresenius employee who worked in User Security, Kacey Davis, was allowed to work remotely; and (2) the Applications team had a ticket overload, or backlog, at the time of his layoff. (Waire Dep. at p. 210:16 – 213:3). Neither of those reasons show pretext. First, Waire does not dispute that the organizational changes, including the elimination of all application positions in Nashville, happened – it did. (SOF ¶¶ 99-101). Second, Waire cannot dispute that the organizational changes motivated the decision to end Waire’s employment by disagreeing with the Company’s business judgment or by pointing to his perception that there was a ticket overload and backlog problem. As Waire acknowledges, the Applications positions in Nashville were eliminated not due to a lack of tickets, but because the function was no longer going to be performed in Nashville and instead entirely performed by a “centrally located” team in Massachusetts. (See, SOF ¶ 100; Waire Dep. at p. 213:12 – 215:10). Finally, if Waire is arguing that he should have been spared from a layoff because another employee who worked outside of his department (Davis) was allowed to work remotely, that argument fails as well. He cannot compare himself and other members of his team who were subject to a restructuring lay-off to someone in a different department who was not subject to the restructure. (Waire Dep. at p. 215:11-16). Further, Waire cannot explain why his lay off was retaliatory when everyone on his team in Nashville were treated the same and laid off. (Waire Dep. at p. 214:24 – 215:10). Given his inability to demonstrate a prima facie case of retaliation, much less any basis for pretext, Waire’s claim for retaliation should be dismissed. CONCLUSION Based on the foregoing, the subject lawsuit should be dismissed as a matter of law as to Plaintiff Waire. Therefore, Fresenius respectfully requests that summary judgment be entered in its favor and each of Waire’s claims be dismissed with prejudice. Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 25 of 26 PageID #: 767 26 Dated this 22nd day of January, 2019. Respectfully submitted, s/ Wendy V. Miller Wendy V. Miller, TN #023500 Anne T. McKnight, TN #026476 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. SunTrust Plaza 401 Commerce Street, Suite 1200 Nashville, TN 37219-2446 Telephone: 615.254.1900 Facsimile: 615.254.1908 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on this the 22nd day of January 2019, the foregoing was filed electronically with the Clerk of the Court and served via first class U.S. Mail upon the following: Dennis Jefferson 321 Gaywood Drive Nashville, TN 37211 Timothy Waire 2510 Zion Road Columbia, TN 38401 Rosemary Webster 2120 Bransford Ave Nashville, TN 37204 /s/ Wendy V. Miller 37078174.1 Case 3:17-cv-00697 Document 99 Filed 01/22/19 Page 26 of 26 PageID #: 768