Opinion
19-2831-TLP-tmp
02-08-2022
TIANA M. SANDERS, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant.
REPORT AND RECOMMENDATION
TU M. PHAM CHIEF UNITED STATES MAGISTRATE JUDGE
On December 3, 2019, plaintiff Tiana Sanders filed a pro se complaint against Federal Express Corporation (“FedEx”), her former employer, and multiple FedEx employees seeking damages for claims of race and sex discrimination and retaliation for engaging in protected activity. (ECF No. 1.) The individual employees have since been dismissed and FedEx is the only remaining defendant. (ECF No. 14.) Before the court is FedEx's Motion for Summary Judgment, filed on December 15, 2021. (ECF No. 84.) Sanders did not respond to the motion or to an order to show cause entered by the court after her initial response deadline had passed. (ECF No. 33.) For the below reasons, the undersigned recommends that FedEx's Motion for Summary Judgment be granted.
Pursuant to Administrative Order No. 2013-05, this case has been referred to the United States magistrate judge for management and for all pretrial matters for determination or report and recommendation, as appropriate.
I. PROPOSED FINDINGS OF FACT
Tiana Sanders, who is an African-American woman, began working for FedEx on January 20, 2014, as a part-time Handler.(ECF No. 32 at 1.) She was promoted multiple times over the next four years, first to Material Handler and then finally to Ramp Agent on October 28, 2017. (Id. at 1-2.) All of her jobs involved loading, unloading, and sorting shipments at the FedEx hub in Memphis, Tennessee. (Id.)
Since Sanders did not respond to the motion, the following facts are taken exclusively from FedEx's Statement of Undisputed Material Facts and are considered undisputed for purposes of summary judgment. W.D. Tenn. Civ. R. 56.1(d).
Although Sanders was slowly given more responsibilities, she also faced multiple instances of discipline. She received two Warning Letters in 2014 for failing to work as directed. (Id. at 1.) On August 4, 2016, she received a Warning Letter for a “Serious Safety Violation” after hitting an aircraft while operating a loader. (Id. at 2.) Sanders admitted to the accident; however, she claimed that it was due to improper directions from her loader guide. (ECF No. 32-1 at 17.) On October 18, 2017, she received another Warning Letter and a three-month suspension due to “inappropriate behavior while visiting a FedEx facility in Dubai.” (ECF No. 32 at 2; ECF No. 32-1 at 23). Sanders found this Warning Letter “weird” and refused to sign it because “all that stuff wasn't true.” (ECF No. 32-1 at 23-24.) Despite these prior Warning Letters, she was promoted to Ramp Agent, a “leadership position” that is “responsible for properly loading and unloading FedEx aircraft.” (Id.) As a Ramp Agent, she received one more Warning Letter for a Serious Safety Violation after striking a baggage cart with a loader on May 5, 2018. (Id.)
While Sanders contests some of the company's justifications for the above discipline, she does not allege that it was discriminatory. She instead alleges that the discrimination began in December 2018. That month, Sanders applied for two open Manager Hub Ops positions through FedEx's internal hiring system. (Id. at 2, 4.) One position reported to hiring Manager Patrick Whalen and the other reported to hiring Manager Christi Free. (Id.) Both applications required Sanders to turn in “a packet of required documentation” and noted that “late or incomplete packets will not be considered.” (Id.) The job posting included “posting codes” that corresponded to different documents and information that needed to be included in the packet. (Id. at 2.) Sanders did not understand what the posting codes meant when asked during her deposition. (Id. at 2-4.) While Sanders had “at least three or four people” look over her packet to ensure it was filled out correctly, (ECF No. 32-1 at 29-30), she nonetheless failed to include a required “scholastic transcript” with the packet that she submitted for both positions. (ECF No. 32 at 2-4.) Amber Tate, a Human Resources Advisor, performed the initial review of both packets “for completeness and to ensure the applicants met the required qualifications for the position.” (Id. at 3.) This included reviewing the applicants for any “active job-related discipline.” (Id.) Due to Sanders's incomplete packet and the active Warning Letter from the May 5 incident, she was “determined to be ineligible for an interview” for both positions. (Id.) However, Sanders believed that she was not given an interview due to her sex and out of retaliation for her prior appeals of Warning Letters. (Id. at 4.) Ultimately, both positions were filled by black male employees. (Id. at 3, 5.)
Other instances of discipline followed these rejections and discipline became more common as well. On January 15, 2019, Sanders received a Warning Letter for another Serious Safety Violation after a “unit load divider (ULD container) dropped off the dolly she was driving” when the locks securing it failed. (Id. at 5-6.) FedEx's investigation determined that Sanders had “used an obviously damaged dolly to transport containers to the aircraft gate” in violation of company policy, (ECF No. 32-1 at 143), but Sanders felt that the warning was unfair due to her belief that many other employees dropped containers and were not written up. (Id. at 55-57.) Sanders internally appealed this letter but did not allege that it had been issued due to her race or sex. (ECF No. 32 at 6.)
Troubles continued into the next year. In February and March 2019, Sanders was formally counseled by management three times. (Id. at 6-7.) First, on February 28, 2019, at roughly 4:30 p.m., Sanders was instructed to clean the loading lot gates and then clock out. (Id. at 6.) Rather than immediately cleaning the gates, Sanders finished working on her appeal of a previous Warning Letter and ultimately clocked out at 7:17 p.m. (Id.) Sanders was counseled about staying overtime, but insisted she was told to clean the gates after she got done with what she was working on. (Id. at 67; ECF No. 32-1 at 68.) At her deposition, she could not account for why she clocked out so late. (ECF No. 32-1 at 68.) Second, on March 12, 2019, Sanders was counseled about instances of “taking her break at inappropriate times, ” which she had been warned about previously by Manager Rachael Kirkpatrick. (ECF No. 32 at 6.) At her deposition, Sanders did not deny the incident or prior warning, but insisted she was the only employee with a scheduled break. (ECF No. 32-1 at 62.) Lastly, on March 21, 2019, Sanders was counseled after she repeatedly asked an employee to perform multiple tasks they were not qualified to do during an onload. (ECF No. 32 at 7.) Sanders denied that she made these requests. (ECF No. 32-1 at 72.)
A month after the repeated counseling, Sanders filed a Charge of Discrimination with the EEOC, alleging that FedEx's conduct between December 6, 2018, and April 4, 2019, amounted to race and sex discrimination. (ECF No. 32 at 7.) Further, she alleged retaliation stemming from her internal appeals of multiple Warning Letters. (ECF No. 32-1 at 46-47.) Less than two weeks later, on May 3, 2019, Sanders received yet another Warning Letter from Kirkpatrick for failing to work as directed, this time for refusing to perform Load Captain responsibilities despite being ordered to do so. (ECF No. 32 at 7.) The incident in question took place on April 21, 2019. (Id. at 8.) Sanders insisted at her deposition that Kirkpatrick's request was against company policy. (ECF No. 32-1 at 78-79.) Since this was Sanders's third Warning Letter in a twelve-month period, she was demoted from Ramp Agent to Material Handler and considered ineligible for any leadership positions for the next twelve months. (ECF No. 32 at 7.)
In her new position, “Sanders'[s] primary duties related to sorting freight on the different belts at the Memphis Hub.” (Id. at 8.) Once her sorting was complete, she was to report to a manager for “post sort aircraft assignment” and expected to clock out after being released from the post sort. (Id.) However, Sanders did not consistently clock out when released, “stay[ing] on the clock without obtaining Management permission” on June 2, 4, and 6. (Id.) At her deposition, Sanders claimed that on June 2 an unidentified Manager told her the team “didn't have anything to do, ” and she instead worked on the internal appeal of a prior Warning Letter. (Id.) The June 4 incident stemmed from her staying late to complete required training, even though the training did not have to be done at that exact time. (Id. at 9.) Because of these incidents, on June 26, 2019, Manager Gautam Malhotra issued Sanders a Warning Letter/Termination that terminated her employment due to the three prior “notification[s] of deficiency within the past months.” (Id. at 8.) After her termination, Sanders amended her charge with the EEOC to include these incidents, which she claimed were motivated by race and sex discrimination as well as retaliation for filing the initial charge. (Id. at 9.)
Sanders received a right to sue letter from the EEOC on September 11, 2019, and filed the present suit on December 3, 2019, proceeding pro se. (ECF No. 1.) On December 15, 2021, FedEx filed a Motion for Summary Judgment. (ECF No. 31.) Sanders did not respond to the motion or to the show cause order which provided her an additional two weeks to respond. (ECF No. 33.)
II. PROPOSED CONCLUSIONS OF LAW
A. Standard of Review
Federal Rule of Civil Procedure 56(a) provides that “the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden to “demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Once the moving party has presented evidence sufficient to support a motion for summary judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant probative evidence must be presented to support the complaint.” Goins v. Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991).
The party opposing the motion for summary judgment may not rely solely on the pleadings but must present evidence supporting the claims asserted by the party. Banks v. Wolfe Cty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003). Conclusory allegations, speculation, and unsubstantiated assertions are not evidence and are not sufficient to defeat a well-supported motion for summary judgment. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). Similarly, a court may not consider inadmissible, unsworn hearsay in deciding a motion for summary judgment. Tranter v. Orick, 460 Fed.Appx. 513, 514 (6th Cir. 2012). In order to defeat summary judgment, the party opposing the motion must present affirmative evidence to support its position; a mere “scintilla of evidence” is insufficient. Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 252). “In making this assessment, [the court] must view all evidence in the light most favorable to the nonmoving party.” McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016). These standards apply regardless of a party's pro se status; “the liberal pleading standard for pro se parties is ‘inapplicable' ‘once a case has progressed to the summary judgment stage.'” George v. Whitmer, No. 20-12579, 2021 WL 1976314, at *2 (E.D. Mich. May 18, 2021) (quoting Tucker v. Union of Needletrades, Indus., & Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005)). A pro se party's opposition to a motion for summary judgment cannot rely on “mere allegations and unsworn filings” but must instead “set out specific facts showing a genuine issue for trial through affidavits or otherwise” just like any other response. Id. (citing Viergutz v. Lucent Techs., Inc., 375 Fed.Appx. 482, 485 (6th Cir. 2010)).
B. Title VII Discrimination Claims
Plaintiffs may attempt to prove their discrimination claims in one of two ways. First, they may advance direct evidence of discrimination, or evidence that “if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.” Kostic v. United Parcel Serv., Inc., 532 F.Supp.3d 513, 527 (M.D. Tenn. 2021) (emphasis added). Direct evidence includes, among other things, blatant discriminatory statements of intent to take adverse actions against the plaintiff. See, e.g., Brewer v. New Era, Inc., 564 Fed.Appx. 834, 839 (6th Cir. 2014) (direct evidence of discrimination where a decisionmaker declared plaintiffs were “too old” and “needed to retire”). In cases where the plaintiff produces direct evidence of discrimination, the burden is shifted to the defendants to prove that they would have taken the same actions “even if [they] had not been motivated by impermissible discrimination.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
Sanders does not present direct evidence but instead relies on circumstantial evidence of discrimination. “Circumstantial evidence . . . is proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.” White v. Baxter Healthcare Corp, 553 F.3d 381, 391 n. 5 (6 th Cir. 2008) (citing Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997)). Where only circumstantial evidence exists, courts use the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to evaluate claims. Under McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination by demonstrating that 1) they are a member of a protected class, 2) they were qualified for their job and performed it satisfactorily, 3) despite their qualification and performance, they suffered an adverse employment action, and 4) they were “replaced by a person outside the protected class or were treated less favorably than a similarly situated person outside [the] protected class.” Wingo v. Michigan Bell Tel. Co., 815 Fed.Appx. 43, 45 (6th Cir. 2020) (citing Wheat v. Fifth Third Bank, 785 F.3d 230, 237 (6th Cir. 2015)). Making a prima facie case “is a burden easily met” by the plaintiff, after which the burden shifts to the defendant to articulate a “legitimate, nondiscriminatory reason for the adverse action.” Wheat, 785 F.3d at 237. If the defendant can do so, then the plaintiff must prove that the reasons provided were “mere pretexts for prohibited discrimination.” Id. (citing Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)).
1. Discrimination in Discipline
FedEx argues that Sanders cannot demonstrate the second and fourth elements of her prima facie case regarding the discipline she received between December 2018 and June 2019, which includes her demotion and firing. First, they argue that Sanders did not perform her job satisfactorily, as evidenced by her long disciplinary record. (ECF No. 31 at 10.) However, FedEx also points to Sanders's disciplinary record as justification for their refusal to hire her for management jobs and their decision to terminate her employment. As the Sixth Circuit has previously stated regarding the qualification element:
A court may not consider the employer's alleged nondiscriminatory reason for taking an adverse employment action when analyzing the prima facie case. To do so would bypass the burden-shifting analysis and deprive the plaintiff of the opportunity to show that the nondiscriminatory reason was in actuality a pretext designed to mask discrimination.Guyton v. Exact Software N. Am., No. 2:14-CV-502, 2016 WL 3927349, at *8 (S.D. Ohio Jul. 21, 2016) (quoting Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 574-75 (6th Cir. 2003)). Instead, “a prima facie case looks to objective qualifications, like an employment contract, over subjective qualifications like affidavits attesting to an employee's proficiency.” Flowers v. WestRock Servs., Inc., 979 F.3d 1127, 1131 (6th Cir. 2020). FedEx's argument presents exactly the issue that the Wexler court cautioned against: they point to Sanders's disciplinary record as evidence that she did not perform her job satisfactorily while Sanders argues that her disciplinary record is the discrimination she faced despite performing her job satisfactorily. Objective indicators such as Sanders's resume and multiple promotions reflect that, for purposes of showing a prima facie case, she was qualified for her job as a Ramp Agent.
Next, FedEx argues that Sanders has not demonstrated that she was “treated less favorably than a similarly situated person outside [the] protected class” regarding the discipline she received. Wingo, 815 Fed.Appx. at 45. “Similarly situated means that 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 employer's treatment of them for it.” Parries v. Makino, Inc., 148 Fed.Appx. 291, 296 (6th Cir. 2005) (“To establish disparate treatment, the plaintiff must show that he was similarly-situated in all relevant aspects to the comparable worker”) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992) (internal quotation marks omitted)). Specific facts are critical to this determination, including “the disciplinary history of a plaintiff” as compared to the proposed comparator where a progressive discipline system is used. Wingo v. Michigan Bell Tel. Co., No. 16-cv-12209, 2019 WL 78898, at *8 (E.D. Mich. Jan. 2, 2019) (citing Berry v. City of Pontiac, 269 Fed.Appx. 545, 549 (6th Cir. 2008)).
FedEx argues Sanders has not provided specific facts, noting that “the only alleged comparators [Sanders] specifically mentions relate to the Warning Letter she received on January 15, 2019” and that “she admits knowing little or nothing about the circumstances or facts relating to those alleged incidents.” (ECF No. 32 at 11.) FedEx is correct. Sanders has not provided enough evidence to raise a genuine issue of material fact regarding any disparate treatment. In her deposition Sanders noted that three other black males and one white woman had similarly dropped cargo. (ECF No. 32-1 at 49) (“Why did it - - they not deal with those three black males? Why didn't they just deal with the Caucasian lady when she dropped the can? As opposed to dealing with me like - -“); (Id. at 52) (Q: “What other people are you talking about?” A: “I think his name was Terrence Smith. DeAngelo Oliver . . . I think her name is Randy James . . . I don't think he - - he got a Warning Letter.”) She also remembered an incident, possibly in 2019, when James, a white woman, “didn't check her locks and she drove off and [the cargo] just came off” for which “there was no reprimand.” (Id. at 54.) However, the law requires more. Sanders cannot provide details of who supervised these employees, what the exact circumstances regarding the dropped cargo were, and whether they had similar disciplinary histories to her. These are necessary facts to determine if the proposed comparators are truly similar in “all relevant respects.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998). The burden of demonstrating a prima facie case is not onerous, but “threadbare allegations, supported only by [] general impressions . . . are not enough to establish a viable case of discrimination.” Wingo, 815 Fed.Appx. at 46.
Sanders's lengthy amended complaint lists various comparators who she contends were not disciplined for making the same mistakes she made. (See generally ECF No. 9.) However, “once a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading.” Talismanic Properties, LLC v. Tipp City, Ohio, 309 F.Supp.3d 501, 507 (S.D. Ohio 2017) (quoting Viergutz v. Lucent Techs., Inc., 375 Fed.Appx. 482, 485 (6th Cir. 2010)). Sanders did not respond to the motion for summary judgment or submit any affidavits or evidence. The portions of her sworn deposition that FedEx relies on is the only evidence the court may consider on her behalf.
Even if Sanders had stated a prima facie case, FedEx has articulated a legitimate non-discriminatory reason for their actions: Sanders's continuous performance related issues and FedEx's stated policy that employment may be terminated after three Warning Letters within a twelve-month period. To survive summary judgment Sanders must present enough evidence to create a genuine issue of material fact over whether this justification: (1) had no basis in fact; (2) did not actually motivate the adverse actions, or (3) was insufficient to warrant the adverse actions. Sharp v. Aker Plant Servs. Grp., Inc., 600 Fed.Appx. 337, 344 (6th Cir. 2015). Sanders admitted to the underlying conduct of almost every incident for which she was cited and does not argue that her record has no basis in fact. (ECF No. 32-1 at 58) (Q: “And you admit that on January 6, 2019, a unit load divider or device or better known as ULD container dropped off the dolly you were driving into an aircraft gate, correct?” A: “Yes.”); (Id. at 64) (Q: “Did Rachael Kirkpatrick have a discussion with you about the fact that you needed to take your break at about 10:30 each day?” A: “Yeah.”); (Id. at 68) (Q: “And then it says you did not clock out until 19:17; is that correct?” A: “Yeah, I had to do my [internal Warning Letter appeal] and then I went to go do the gates.” . . . Q: “[W]hat happened to the other . . . two hours and 15 minutes?” A: “I don't know.”); (Id. at 79) (Q: “Okay. But after she asked you to perform the upper load captain functions, then you didn't do that; is that fair?” A: “Yes, because I did not feel comfortable because it wasn't in policy.”) Sanders argues that she was unfairly targeted in these incidents because “when it came to me, they would make different rules, ” and that “a lot of [the] same people were doing the same stuff I was doing, and they weren't getting in trouble for it, ” (ECF No. 32-1 at 91), but these explanations amount to “mere personal beliefs, conjecture, and speculation [which] are insufficient to support an inference of . . . discrimination.” (ECF No. 31 at 11-12) (quoting Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 724 (6th Cir. 2006)). For example, when asked why she believed her termination was due to her race, Sanders merely stated that her manager “[had] this perception of me already. He was already coming at me. Like it was just weird . . . Just the way he was interacting on me, and I notice how he was interacting with other people.” (ECF No. 31-2 at 88.) She could not provide any other reason or details. Even viewing the facts in the light most favorable to her, Sanders has not presented a genuine issue of material fact as to whether FedEx's discipline and compliance with their three Warning Letter policy were mere pretexts.
2. Discrimination in Failure to Promote/Hire
Sanders argues that FedEx's failure to promote/hire her for an open Manager Ops position in December 2018 was discriminatory as well. The company argues that Sanders cannot make a prima facie case of discrimination, since she was ineligible for the positions due to her active Warning Letter and failure to correctly complete the applicant packet. The test here is the same as above: Sanders must show that she was a member of a protected class, qualified for the job, suffered an adverse employment action, and that the job went to someone outside her protected class. Serrano v. Cintas Corp., 699 F.3d 884, 893 (6th Cir. 2012).
Sanders cannot demonstrate that she was qualified for a Manager position. The postings for both positions noted that “late or incomplete packets will not be considered.” (ECF No. 32-1 at 121, 139.) While Sanders notes that she had other employees look over her packet, they incorrectly advised her on what documentation was required. (Id. at 29-30.) Multiple other candidates, including a white male applicant, had “similar deficiencies and were also determined to be ineligible for an interview.” (ECF No. 32-2 at 23.) Sanders has not produced any evidence to create a genuine issue of material fact regarding her qualifications for the position or that other candidates outside of her protected class were treated more favorably.
C. Title VII Retaliation Claims
Sanders also alleges that her demotion and eventual termination were not just the result of racial discrimination, but of retaliation for filing a Charge of Discrimination with the EEOC on April 22, 2019. (ECF No. 1.) Retaliation claims under Title VII are governed by a similar burden shifting structure as discrimination claims:
To establish a prima facie case of retaliation a plaintiff must establish that: (1) she engaged in a protected activity; (2) her exercise of such protected activity was known by the defendant; (3) thereafter, the defendant took an action that was materially adverse to the plaintiff; and (4) a causal connection existed between the protected activity and the materially adverse action.Rogers v. Henry Ford Health System, 897 F.3d 763, 775 (6th Cir. 2018) (citing Laster v. City of Kalamazoo, 749 F.3d 714, 730 (6th Cir. 2014) (internal quotation marks omitted)). The last element is satisfied “where an adverse employment action occurs very close in time after an employer learns of a protected activity.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). FedEx does not contest the first three elements; instead they argue that “Sanders admits that she cannot articulate any reason for her belief that she was retaliated against for filing her Charge of Discrimination.” (ECF No. 31 at 13.)
While temporal proximity suffices for causation at the prima facie case stage, it “cannot be the sole basis for finding pretext” and must be “accompanied by some other independent evidence.” Briggs v. Univ. of Cincinnati, 11 F.4th 498, 516 (6th Cir. 2021) (citing Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012)).
When asked why she believed retaliation motivated her termination, Sanders admitted that no one at FedEx said anything about her having filed a Charge of Discrimination. (ECF No. 32-1 at 94.) She ultimately answered by recounting that the EEOC had told her that FedEx was “going to find a way to get [her] out of there.” (Id. at 93.) Regardless, Sanders's demotion and firing came only two weeks and two months, respectively, after filing her charge. This is “sufficient temporal proximity to establish a causal connection.” Rogers, 897 F.3d at 776-77 (citing Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283-84 (6th Cir. 2012) (collecting cases holding that a two-to-three-month lapse between the protected activity and adverse action is sufficient at the prima facie case stage)). Pursuant to Sixth Circuit precedent, the undersigned finds that Sanders has alleged enough for a prima facie case of retaliation.
However, much like with her discrimination claims, Sanders has not created a triable issue of material fact over whether FedEx's legitimate, non-discriminatory reasons for demoting and firing her are merely pretext. This burden is met if the plaintiff can show “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer's action, or (3) that they were insufficient to motivate the employer's action.” Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir. 2012) (citing Romans v. Michigan Dep't. of Human Servs., 668 F.3d 826, 839 (6th Cir. 2012)). FedEx states that they demoted and fired Sanders due to her repeated Warning Letters, with her firing coming after her third Warning Letter within twelve months per company policy. Sanders has not advanced any evidence that these letters had no basis in fact; she admitted to much of their underlying conduct. Supra § B.1. She has failed to show that her disciplinary violations were not FedEx's true motive, as she did not dispute that she “cannot articulate a reason for [her] belief other than being told by the EEOC that [FedEx is] going to be after [her] for this.” (ECF No. 32 at 9.) Finally, she has not shown that her disciplinary violations are insufficient to explain her termination. FedEx followed their stated policy in both her demotion and eventual firing, and the ultimate burden to show that they were instead motivated by a desire to retaliate rests with Sanders. She has not pointed to any evidence to support her claim and thus has not created a genuine issue of material fact on the issue.
III. RECOMMENDATION
Based on the above, the undersigned recommends that the Motion for Summary Judgment be granted.
NOTICE
WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY OF THIS REPORT AND RECOMMENDED DISPOSITION, ANY PARTY MAY SERVE AND FILE SPECIFIC WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS AND RECOMMENDATIONS. ANY PARTY MAY RESPOND TO ANOTHER PARTY'S OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED WITH A COPY. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2); L.R. 72.1(g)(2). FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS MAY CONSTITUTE A WAIVER OF OBJECTIONS, EXCEPTIONS, AND FURTHER APPEAL.