Opinion
Civil Action No. 1:08cv126.
July 9, 2010
ORDER
This matter is before the Court pursuant to Defendant's motion for summary judgment (Doc. 31). Plaintiff filed a memorandum in opposition (Doc. 42) to which Defendant's replied (Doc. 48). This matter is now ripe for review. For the reasons that follow, Defendant's motion for summary judgment is GRANTED.
I. Background
Plaintiff Rhonda L. Tracy's remaining claim against Defendant, Northrop Grumman Systems Corporation ("Northrop") is for damages arising from Northrop's alleged unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964.
It is undisputed that Tracy was employed by Northrop from 1997 through October 16, 2007 and that she began her employment as an Assembler. On September 9, 1997, Tracy was promoted to the position of Manufacturing Technician and later, in 2003, Tracy was promoted to the position of Quality Technician. At the time of her termination, Tracy was classified as a Lead Inspector. As of October, 2005 her supervisor was Bobby McAlpine ("McAlpine"). (Doc. 34, Tracy Depo. at 37). During her employment as Quality Technician and Lead Inspector, Tracy was responsible for inspecting products that came into Northrop based upon contract requirements. ( Id. at 59). The United States was a client of Northrop and Tracy inspected circuit cards that were eventually used in products for the Army or Navy. ( Id. at 60-61). Tracy was also assigned to the audit team for part of her employment where she conducted floor inspections of production activity. ( Id. at 60). Tracy asserts that she was frequently criticized and chastised by McAlpine for refusing to approve incoming parts which she claimed did not comply with Northrop's contract requirements. If Tracy rejected an item it then went into a locked room where a Quality Engineer would then determine if the rejection was correct and, if so, if the item could be reworked or should be returned to the vendor. ( Id. at 61, 165-166).
During the course of her employment, Tracy complained to Northrop's President, Martin Simoni, and Jane Diles, Human Resources Manager, about McAlpine pressuring her to approve parts which she felt did not comply with the quality standards set forth in Northrop's contract with the United States and that she thought the Quality Engineers were "shortcutting." ( Id. at 93, 112, 253-254). In addition, there is a long history of complaints being made about Tracy's behavior and/or attitude, including insubordination and not cooperating with the Quality Engineers. (See Doc. 42, p12 for a list of examples). In July of 2006, Jane Diles directed McAlpine to document conversations or performance issues that he had with Tracy. (Doc. 40, Diles Depo. at 24-25).
Tracy received a formal written warning on June 22, 2007 regarding an incident related to an audit she performed and her failure to follow her supervisor's instruction. (Doc. 34, Tracy Depo. at 154; Exh. 7). Following this warning, Tracy was removed from the audit team. Tracy then received an email on July 19, 2007 from McAlpine stating that "[b]oth Human Resources and I have communicated to you that wrong behavior will not be tolerated moving forward." (Doc. 45, Exh 18, PAGEID#1605). In addition, even though it has previously been determined that Tracy would receive a merit raise, in July 2007 McAlpine made the decision not to give Tracy the merit raise based upon her poor work performance in 2007 and her receipt of a formal warning letter. (Doc. 40, Diles Depo. at 21; Exh. 36, 37; Doc. 31-2; McAlpine Aff., ¶ 9). Tracy learned of this decision on August 20, 2007. (See Doc. 38, McAlpine Depo. Exh. 11).
In August, 2007, McAlpine received a complaint from Larry Alexander, a Quality Engineer, stating that Tracy had rejected seven out of ten items without providing sufficient detail. Then in September, 2007 McAlpine experienced several incidents of insubordination with Tracy. (See Doc. 31-2, McAlpine Aff., ¶ 11-12). On October 4, 2007, Tracy was involved in an altercation with another employee, the details of which are disputed. However, Tracy was suspended following this altercation and ultimately terminated on October 15, 2007. ( Id. at ¶ 13; Doc. 34, Tracy Depo. Exh 15).
Tracy filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on July 27, 2007 (Doc. 34, Tracy Depo. Exh 17). Northrop first received notification of her complaint and its denial on August 7, 2007. It was faxed to the Human Resources Manager, Jane Diles. ( Id. at 218-220; Doc. 40, Diles Depo. at 26-27).
II. Standard of Review
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party has the burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden of production, the non-moving party cannot rest on his pleadings, but must present significant probative evidence in support of his complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The mere existence of a scintilla of evidence to support the non-moving party's position will be insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the non-moving party. Id. at 252.
In ruling on a motion for summary judgment, "[a] district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990); see also L.S. Heath Son, Inc. v. AT T Information Sys., Inc., 9 F.3d 561 (7th Cir. 1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment . . ."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties." Beatty v. UPS, 267 F. Supp. 2d 823, 829 (S.D. Ohio 2003).
III. Legal Analysis
Title VII prohibits retaliatory actions against employees who oppose, report or participate in investigations involving conduct that allegedly violates Title VII. See 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff can either present direct evidence of retaliation or use the McDonnell Douglas framework to infer retaliation from circumstantial evidence. There is no allegation of direct evidence in this case. Therefore, the Court will use the McDonnell Douglas framework. To establish a prima facie case of retaliation the Plaintiff must show four elements: (1) the plaintiff engaged in an activity protected by Title VII; (2) the defendant knew that the plaintiff exercised his or her rights; (3) the defendant took an employment action against the plaintiff that a reasonable employee would have found materially adverse; and (4) there was a causal connection between the protected activity and the adverse employment action. Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003); see also McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). The burden to establish a prima facie case in a retaliation action is not onerous. See EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997). The employer then has the burden of articulating a legitimate nondiscriminatory reason for the adverse employment action. Gibson v. City of Louisville, 336 F.3d 511, 513 (6th Cir. 2003). Finally, the plaintiff must show that this nondiscriminatory reason was in fact pretextual and that unlawful discrimination was the real reason for the adverse action. Id.
There is no dispute that Tracy engaged in protected activity by the filing of her EEOC complaint and there is no dispute that her termination is a materially adverse action. However, Northrop argues that McAlpine, the decision maker as to Tracy's termination, had no knowledge of her EEOC complaint until after this litigation was filed and that even if Northrop did have knowledge there is no causal connection between the protected activity and Tracy's termination. Tracy argues that Diles knew of her EEOC complaint and that Diles was a decision-maker as to Tracy's termination. Further, Tracy argues that a causal connection can be inferred based upon the close temporal proximity of her complaint and her termination as well as evidence that Diles failed to properly investigate the event that led to her termination and her failure to follow the progressive disciplinary plan.
The evidence is clear that the ultimate decision to terminate Tracy's employment was made by Bobby McAlpine. Tracy states, in her deposition, that she holds McAlpine responsible for authorizing her termination. (Doc. 34, Tracy Depo. at 205). Furthermore, Jane Diles states, in her deposition, that although four individuals were involved in the decision to terminate Tracy, her being one of them, that ultimately it was McAlpine's decision. (Doc. 40, Diles Depo. at 38-39). Finally, McAlpine states that he was solely responsible for the decision to terminate Tracy's employment. (See Doc. 31-2, McAlpine Aff., ¶ 13). Furthermore, it is undisputed that McAlpine did not know about Tracy's protected activity at the time that Tracy was terminated. (See Doc. 31-2, McAlpine Aff., ¶ 14; Doc. 38, McAlpine Depo. at 31-32; Doc. 40, Diles Depo. at 26-27).
A plaintiff may survive summary judgment by producing circumstantial evidence to establish that the decision-makers were aware of her protected activity. Crawford v. Metro. Gov't, 2009 U.S. Dist. LEXIS 96282 (M.D. Tenn. Oct. 15, 2009) citing Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002). Here there is no direct or circumstantial evidence showing that McAlpine knew of Tracy's protected activity and, thus, Tracy can not establish this prong of the test. Although the Court in Crawford found there was a question of fact as to when the decision maker learned of the protected activity that case supports the proposition of law that the decision maker must be aware of the protected activity and that the knowledge of others is not sufficient. The Court in Mulhall, 287 F.3d at 553, discusses Kralowec v. Prince George's County, Maryland, 503 F. Supp. 985 (D. Md. 1980), aff'd, 679 F.2d 883 (4th Cir.), cert. denied, 459 U.S. 872 (1982) wherein that court concluded that knowledge of the protected activity could be inferred from evidence of prior interactions of individuals with knowledge of the protected activity and those taking the adverse action. Kralowec is distinguishable from the present case in that Diles has denied informing McAlpine of the EEOC charge and McAlpine has denied knowledge of the protected activity. Plaintiff has also failed to present any evidence to the contrary. Furthermore, there is no evidence that Diles actively participated in the decision to terminate Tracy. All the parties involved, Tracy, Diles and McAlpine, all testified that McAlpine was the ultimate decision maker. See also Murray v. Sears, 2010 U.S. Dist. LEXIS 34256, *24 (N.D. Ohio Apr. 7, 2010) (where the Court held that there is no evidence that the decision-makers were aware of the alleged protected activity). Thus, there is no question of fact as to the issue of knowledge. McAlpine was the decision maker and he did not have knowledge of the protected activity.
Even if Tracy could establish the requisite knowledge, she can not show a causal connection between her protected activity and her adverse employment action. "To establish a causal connection, a plaintiff must proffer evidence sufficient to raise the inference that her protected activity was the likely reason for the adverse action." Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 596 (6th Cir. 2007) quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007). Temporal proximity is not enough. Id. However, a temporal connection coupled with other indicia of retaliatory conduct may be sufficient to support a finding of a causal connection. Id. citing Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 737 (6th Cir. 2006). Here, there is at least a question as to temporal proximity. Diles, although not McAlpine, learned of Tracy's EEOC complaint on August 7, 2007 and Tracy was suspended on October 5, 2007 then terminated on October 15, 2007. Tracy then argues that other indicia of retaliatory conduct include Northrop treating her differently, Northrop not properly investigating the event that led to her termination and Northrop skipping steps under the company's progressive disciplinary plan. (Doc. 42, p7). However, the facts do not support these arguments.
Tracy cites to Cantrell v. Nissan N. Am. Inc., 145 Fed. Appx. 99, 105-106 (6th Cir. Tenn. 2005) to support her position that a causal connection exists. However, Cantrell is distinguishable from this case. Here, Tracy has not presented any evidence that she was treated differently after her protected activity then she was before. Although it is true that Northrop tolerated numerous outbursts of inappropriate behavior and insubordination from Tracy in 2005 and early 2006, it is clear from the record that this was no longer the case in mid-2006 when Diles informed McAlpine to document all problems as they related to Tracy and that Tracy received a formal written warning before she filed her EEOC complaint. In addition, Tracy received an email on July 17, 2007, again before she filed her EEOC complaint, stating that any further wrong behavior would not be tolerated. She was also denied a merit raise during this same time period. Tracy implies that the denial of her merit raise was based upon her EEOC complaint since Diles learned of the complaint right before Tracy learned that she was not getting the raise. However, the evidence is clear that the wheels were put in motion to take back her merit raise in July, 2007, even before Tracy filed her EEOC complaint.
"[E]vidence that the employer had been concerned about a problem before the employee engaged in the protected activity undercuts the significance of the temporal proximity." Sosby v. Miller Brewing Co., 415 F. Supp. 2d 809, 822 (S.D. Ohio 2005) quoting Smith v. Allen Health Sys., 302 F.3d 827, 834 (8th Cir. 2002). More specifically on point, Judge O'Malley in the Northern District of Ohio has held that "where adverse employment actions or other problems with an employee predate any knowledge that the employee has engaged in protected activity, it is not permissible to draw the inference that subsequent adverse actions, taken after the employer acquires such knowledge, are motivated by retaliation." Carpenter v. Permanente, No. 1:04cv1689, 2006 WL 2794787 at *20, 2006 U.S. Dist. LEXIS 69564. *61 (Sept. 27, 2006) citing Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001); Zakharevskaia v. Online Computer Library Ctr., 2006 WL 1401666 (S.D.Ohio May 22, 2006); Coulter v. Deloitte Consulting, L.L.C., 79 Fed. Appx. 864 (6th Cir. 2003).
As to the investigation that led to her termination, Diles testified that she met with the complaining witness, Burke, and another witness to obtain their statements. She also testified that she met with Tracy to discuss the event prior to Tracy receiving her suspension, although it appears that the decision to suspend her had already been made at this time. (Doc. 40, Diles Depo. at 43). Tracy acknowledges that Diles and McAlpine informed her of her suspension but denies that a conversation took place. She states that she did not say anything to them. (Doc. 34, Tracy Depo. at 203).
Although evaluating in the context of pretext, the Sixth Circuit has explained that a plaintiff must allege more than a dispute over the facts upon which his discharge was based. Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001). Instead, a plaintiff must put forth evidence which demonstrates that the employer did not "honestly believe" the proffered non-discriminatory reason for its adverse employment action. Id. In order to determine whether the defendant had an "honest belief," a court must consider whether the employer can establish its "reasonable reliance" on the particularized facts that were before it at the time the decision was made. Id. In Smith v. Chrysler, the Sixth Circuit noted that:
In deciding whether an employer reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.55 F.3d 799, 807 (6th Cir. 1998). This Court must not second guess the business judgment of the employer, but simply evaluate "whether the employer gave an honest explanation of its behavior." Hedrick v. W. Res. Care Sys., 355 F.3d 444, 462 (6th Cir. 2004). Here, Diles met with Burke and Mike Smith who witnessed the altercation and verified Burke's version of events. Tracy has presented no evidence that Diles or McAlpine did not believe their version of what occurred. In addition, Tracy had previously received at least two warnings that any further insubordination or inappropriate behavior would not be tolerated.
As to the disciplinary process, Tracy takes issue with the fact that she was not allowed to return to work after her suspension; however, her warning letter indicates that any further inappropriate conduct could "lead to further disciplinary actions up to and including termination." (Doc. 34, Tracy Depo. Exh. 7). Northrop's Plant Rules provide that "[t]he severity of disciplinary action will be determined by considerations such as the impact of the offense on company operations, the extend of damage caused, the circumstances of the offense, and the employee's disciplinary records." (Doc. 34, Tracy Depo. Exh. 9). It goes on further to state that "[t]he formal disciplinary policy is progressive and cumulative, but can result in termination after the first offense in some cases." Based upon this language, it is clear that a separate suspension with an opportunity to return to work prior to termination is not required. Regardless, even if Northrop failed to follow its own policy, such an action alone is not sufficient. See Williams v. Columbus Metro. Housing Auth., 90 Fed. Appx. 870, 876 (6th Cir. 2004) (failure to follow its own regulations and procedures, alone, is not sufficient to support a finding of pretext). Based upon the foregoing, Plaintiff can not establish a causal connection.
IV. Conclusion
Therefore, since Tracy can not establish a prima facie case of retaliation the Court declines to specifically address whether Northrop's legitimate reason for her termination is a pretext for retaliation. Northrop's motion for summary judgment (Doc. 31) is GRANTED. The Clerk of Court is directed to terminate this matter from the docket of this Court.
Tracy's arguments as to pretext are the same as to causal connection, therefore, even if Plaintiff could establish a prima facie case of retaliation, for the reasons set forth above she can not prove that her termination was a pretext for retaliation.
IT IS SO ORDERED.