Cousins v. Chipotle Mexican Grill, No. 1:2012cv00292 - Document 34 (S.D. Ohio 2013)
Court Description: OPINION AND ORDER denying 25 Defendant's Motion for Summary Judgment; denying as moot 30 Defendant's Motion to Strike Paragraphs 4, 6, 7, 8 & 9 from the Declaration of Tonya Whitfield. This matter is set for a final pretrial conference on 10/2/2013 at 2:00 PM, with three-day jury trial to commence on 11/12/2013 at 9:30 AM. Signed by Judge S Arthur Spiegel on 8/8/2013. (km1)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION KATONDRA COUSINS, : : : : : : : : : : : Plaintiff, v. CHIPOTLE MEXICAN GRILL, Defendant. NO. 1:12-CV-292 OPINION & ORDER This matter is before the Court on Defendant s Motion for Summary (docs. 27 Judgment & Paragraphs 29), 4, 6, (doc. as 7, 25) as well 8 & and Defendant s 9 from the the responsive Motion memoranda to Declaration Strike of Tonya Whitfield (doc. 30) and the responsive memoranda (docs. 32 & 33). Because the Court finds that genuine issues of material fact exist as impermissibly retaliation, to whether terminated the Court judgment (doc. 25). Plaintiff s on the DENIES basis Defendant s employment of motion was race and/or for summary The Motion to Strike is DENIED as moot for the reasons discussed herein. I. BACKGROUND Plaintiff, an African American woman, was hired at Defendant s Cincinnati Fountain Square store on August 3, 2010 1 to work as both a crew member and on the restaurant s fax order line. A Caucasian general manager woman, during Stephanie Plaintiff s Ochoa, was employment. Defendant s According to Plaintiff and other employees, Ochoa frequently made derogatory comments to about For Plaintiff. and African example, American several employees, African including American employees, including Plaintiff, were watching Cincinnati s Martin Luther King Day parade through the store s window before the store opened. Ochoa loudly yelled at them, Get your black asses back to work. when Apparently Ochoa frequently used the term black ass referring to Plaintiff, as in What s your black ass doing? Ochoa also allegedly made comments such as, I know why there s so many black people in here around this time. I know it s because the welfare and child support checks are out. And, in reference to Plaintiff, Ochoa allegedly said to other employees, Have you ever seen someone with such dark skin? In other addition, employees Americans. For who Ochoa made example, allegedly derogatory the failed comments Caucasian to discipline about kitchen African manager in training told Plaintiff, When you see black people come through the line, put chicken on the grill, and he told Plaintiff that he didn t want to close the store because he was afraid a black 2 man would rob him. He was allegedly not disciplined for those comments. Following company procedure, Plaintiff met with Ochoa and requested a transfer to a different location, saying that she could no longer tolerate the racist treatment she continually received at the hands of Ochoa, the kitchen manager in training and others. Ochoa allegedly ignored Plaintiff s request to transfer and said that it was all just fun and games and that Plaintiff shouldn t take it seriously. Eight days later, Ochoa terminated Plaintiff s employment. Plaintiff then filed the instant action, claiming that her employment was terminated on the basis of her race, in violation of both federal and state laws, and/or that it was terminated as retaliation for her complaining about the racist atmosphere of the restaurant, also in violation of both state and federal laws. II. STANDARD A grant of 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. 3 Fed. R. Civ. Broadcasting P. 56; System, see also, Inc., 368 e.g., U.S. 464 Poller v. Columbia (1962); LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992) (per curiam). determine In reviewing the instant motion, this Court must whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Fatton v. Bearden, 8 F.3d. 343, 346 (6th Cir. 1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 251-252 (1986) (internal quotation marks omitted). The process of moving for and evaluating a motion for summary judgment and the respective burdens it imposes upon the movant and non-movant are well settled. summary judgment ... bears the First, "a party seeking initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact [.]" Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also LaPointe, 8 F.3d at 378; Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1982); Street v. J.C.D. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). 4 The movant may do so by merely identifying that the non-moving party lacks evidence to support an essential element of its case. See Barnhart v. Pickrel, Shaeffer & Ebeling Co. L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993). Faced completion of with such sufficient a motion, discovery, the must non-movant, submit after evidence in support of any material element of a claim or defense at issue in the motion on which it would bear the burden of proof at trial, even if the moving party has not submitted evidence to negate the existence of that material fact. U.S. at (1986). 317; Anderson v. Liberty Lobby, See Celotex, 477 Inc., 477 U.S. 242 As the "requirement [of the Rule] is that there be no genuine issue of material fact," an "alleged factual dispute between defeat the an judgment." parties" otherwise as to some properly ancillary supported matter motion "will for not summary Anderson, 477 U.S. at 247-248 (emphasis added); see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir. 1989). Furthermore, "[t]he mere existence of a scintilla of evidence in support of the [nonmovant s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir. 1994). Accordingly, the non-movant must 5 present "significant probative evidence" demonstrating that "there is [more than] some metaphysical doubt as to the material facts" to survive summary judgment and proceed to trial on the merits. Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-340 (6th Cir. 1993); see also Celotex, 477 U.S. at 324; Guarino, 980 F.2d at 405. Although the non-movant need not cite specific page numbers of the record in support of its claims or defenses, "the designated portions of the record must be presented with enough specificity that the district court can readily identify the facts upon which the non-moving party relies." Guarino, 980 F.2d at 405, quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989) (internal quotation marks omitted). In contrast, mere conclusory allegations are patently insufficient to defeat a motion for summary judgment. See McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990). The Court must view all submitted evidence, facts, and reasonable inferences in a light most favorable to the non-moving party. See Matsushita Elec. U.S. Indus. Co. v. Zenith Radio Corp., 475 574, 587 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); United States v. Diebold, Inc., 369 U.S. 654 (1962). Furthermore, the district court may not weigh evidence or assess the credibility of witnesses in deciding the motion. 6 See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994). Ultimately, demonstrating that the no movant material Matsushita, 475 U.S. at 587. bears facts are the in burden dispute. of See The fact that the non-moving party fails to respond to the motion does not lessen the burden on either the moving party or the court to demonstrate that summary judgment is appropriate. See Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-455 (6th Cir. 1991). III. Discussion A. Plaintiff s Race Discrimination Claims A evidence Title must VII first plaintiff make out utilizing a prima circumstantial facie case of discrimination, typically by showing 1) that she was a member of a protected class; 2) that she was discharged; 3) that she was qualified for the position held; and 4) either that she was replaced by similarly someone situated outside of non-protected the protected employees were class or that treated more favorably.1 Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th Cir. 2013). After the plaintiff has made out a prima facie case 1 State-law-based race discrimination claims are generally construed in the same manner as those grounded in federal laws because Ohio anti-discrimination laws prohibit the same conduct as Title VII. Shoemaker-Stephen v. Montgomery County Bd. of Com'rs, 262 F.Supp.2d 866, 874 (S.D. Ohio 2003). Thus, the Court s analysis and decisions with respect to Plaintiff s federal Title VII claims apply with equal force to her statebased claims. 7 of discrimination, the employer must present nondiscriminatory reason for the termination. a legitimate, Id. The burden of production then shifts back to the plaintiff to show that the employer's proffered nondiscriminatory reason was pretextual. Id. Here, Defendant argues that Plaintiff cannot meet her prima facie case because she fails to meet the fourth prong: Defendant contends that Plaintiff failed to adduce evidence showing that she was either replaced by someone outside the protected class or that someone outside the protected class was treated more favorably than she. The Court disagrees with Defendant s assessment of the record. The prima facie requirement for making a Title VII claim is not onerous, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) and poses a burden easily met. Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987). The prima facie phase merely serves to raise a rebuttable presumption of discrimination by eliminat[ing] the most common nondiscriminatory reasons for the [employer's treatment of the plaintiff]. Hollins v. Atlantic Co., 188 F.3d 652, 659 (6th Cir. 1999)(quoting Burdine, 450 U.S. at 253-54). It is only the first stage of proof in a Title VII case, and its purpose is simply to force [a] defendant to proceed with its case. EEOC 8 v. Avery Dennison Corp., 104 F.3d 858, 861-62 (6th Cir. 1997). Plaintiff could reasonably here has conclude adduced that outside the protected class. she evidence was from replaced which by one someone Specifically, Plaintiff points the Court to the hiring of Katherine Avalos, a Caucasian woman hired by Defendant on July 8, 2011 and notes that the decision to terminate Plaintiff s employment was made on July 6, 2011. Defendant counters that Plaintiff was not actually terminated until July 11, 2011, thus, it contends, Avalos could not have been Plaintiff s replacement. The Court finds this splitting to run counter to the spirit of Burdine. indisputably shows that Ochoa memorialized her terminate Plaintiff s employment on July 6, 2011. hair- The record decision to Although she did not present that decision to Plaintiff until July 11, it is not unreasonable to infer that Ochoa s decision to hire Avalos on July 8 was a decision to fill Plaintiff s position, which Ochoa knew would be open as soon as the termination formalities were complete. For the purposes of meeting the low burden of the prima facie requirements, this is sufficient in this case. Defendant offers as its nondiscriminatory reason for Plaintiff s discount termination for permission. her that mother Plaintiff without first used her securing employee Ochoa s The burden thus shifts to Plaintiff to show that 9 this reason was merely pretext. A plaintiff can show pretext in three ways. See Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1083 84 (6th Cir. 1994). First, the plaintiff proffered reasons had no basis in fact. 1083 84. can show that the Manzer, 29 F.3d at This first type of showing consists of evidence that the proffered bases for the plaintiff s adverse treatment never happened, i.e., that they were false. Id. Second, the plaintiff can show that the reasons given by the employer were insufficient to motivate discharge. Id. This second showing ordinarily consists of evidence that other similarly-situated individuals were more favorably treated. Id. Third, the plaintiff can show that the defendant s proffered reason did not actually motivate the adverse action. this third type of showing, the Sixth Circuit has In order to make plaintiff additional evidence of discrimination. The Id. must introduce Id. cautioned that courts should avoid formalism in the application of the Manzer test, lest one lose the forest for the trees. F.3d 394, 400, n. 4 (6th Cir. Chen v. Dow Chem. Co., 580 2009). Pretext, the court observed, is a commonsense inquiry: did the employer fire the employee for the stated reason or not? 10 This requires a court to ask whether the plaintiff has produced evidence that casts doubt on the employer s explanation, and, if so, how strong it is. Id. Here, Plaintiff argues that Defendant s reason for terminating Plaintiff s employment was pretext for race-based discrimination because Defendant changed its reasons for firing Plaintiff during the course of this litigation, and Defendant treated other similarly-situated treated Plaintiff. employees Specifically, better Plaintiff notes than that it the termination paperwork she received includes the statement that employee discount s [sic] are only for employees that work here and you are not aloud [sic] to use it on your friends at anytime [sic]. 2 Plaintiff then notes that Ochoa testified that she routinely approved the use of the employee discount for nonemployees and that subsequent to that testimony, Defendant now asserts that Plaintiff s employment was terminated because she failed to secure Ochoa s permission before using her reasons are not employee discount for her mother. Defendant contradictory and contends that the that these underlying violation remains the same by not asking permission, Cousins violated the Employee 50% 2 Plaintiff used her discount for her mother s order, and the record supports the conclusion that she did not first secure Ochoa s permission. 11 Off Discount (doc. 29). Defendant s position, however, very much loses the forest for the trees. The record unequivocally supports the conclusion that the written reason for Plaintiff s termination (that she used a discount for a nonemployee, which is something that is never permitted) was false at the time it was written. employee Ochoa and others repeatedly testified that the discount was routinely used for nonemployees. Defendant s post-hoc attempt to recast Plaintiff s termination as the underlying violation of not first asking permission is, indeed, contradictory termination. to the written explanation for her If the real reason for Plaintiff s termination was her failure to first secure Ochoa s permission before using her employee discount, that is what should have been written. The fact that it was not, and that a false reason was given, is enough to cast doubt on the legitimacy explanation for Plaintiff s termination. clear from the record whether the of Defendant s Given that it is not requirement to secure permission ahead of time was, indeed, a requirement, or whether it was enough to get approval after the fact, and given that it is also unclear from the record whether the policy whatever it actually was was uniformly applied, the doubt is strong enough to show pretext here. As noted by the McDonnell Douglas court, The language 12 of Title equality VII of makes employment discriminatory racially plain job minority citizens. omitted). Duke purpose opportunities practices stratified the and of and devices environments Congress to eliminate which to the to have assure those fostered disadvantage of 411 U.S. 792, 800 (1973)(internal citations The Supreme Court previously recognized in Griggs v. Power Co., 401 U.S. 424, 429 (1971) that [w]hat is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. Id. at 430-431. before the Court is sufficient for the Here, the record Court to reach the conclusion that Plaintiff s race discrimination claims should survive summary judgment. events put conclusion forth that by she If a jury believes the version of Plaintiff, suffered it would invidious be a reasonable discrimination on the basis of her race, which is exactly what Title VII proscribes. B. Plaintiff s Retaliation Claims In addition to prohibiting employment discrimination on the basis of sex, race, color, religion or national origin, Title VII makes it unlawful for an employer to retaliate against an employee because the employee either opposed any practice that Title VII made unlawful or filed a charge under Title VII. 13 42 U.S.C. § 2000e-3(a); Burlington N. & Santa Fe Ry. Co. v. White, 548 evidence, U.S. and Plaintiff's (2006). In is none 56 presented here, retaliation framework. 2002). 53, claim under the absence the the of direct Court reviews McDonnell Douglas Weigel v. Baptist Hosp., 302 F.3d 367, 381 (6th Cir. To establish her prima facie case of retaliation, Plaintiff must show that: 1) she engaged in activity protected by Title VII; 2) Defendant knew that she exercised such rights; 3) Defendant took retaliatory action that a reasonable employee would have found materially adverse; and 4) there was a causal connection action. between the protected activity and the adverse Arendale v. City of Memphis, 519 F.3d 587, 606 (6th Cir. 2008); Burlington Northern, 548 U.S. 53, 68. As above, if Plaintiff is successful in demonstrating her prima facie case, the burden shifts to Defendant to produce evidence legitimate, nondiscriminatory reason for its actions. of a EEOC v. Avery Dennison Corp., 104 F.3d 858, 862 (6th Cir. 1997). If Defendant satisfies this burden, Plaintiff must then demonstrate that the legitimate reason offered by Defendant was a pretext designed to mask retaliation. Id. at 862. Plaintiff s retaliation claims easily survive summary judgment. a Plaintiff s meeting with Ochoa at which she requested transfer because of the 14 ongoing race-based comments constitutes protected activity. See, e.g., Trujillo v. Henniges Automotive Sealing Sys. North America, 495 Fed. Appx. 651, 655 (6th Cir. 2012). And there is no dispute either that Defendant knew about the activity or that her termination was an adverse employment action. With respect to the final prong, Plaintiff must have produced sufficient evidence to create an inference that the adverse action would not have been taken had she not engaged in the protected activity. Center v. See Univ. of Texas Southwestern Medical Nassar, 133 S.Ct. claims must be retaliation 2517, proved 2533 (2013)( Title according to VII traditional principles of but-for causation, not the lessened causation test stated in § 2000e 2(m). This requires proof that the unlawful retaliation would not have occurred in the absence alleged wrongful action or actions of the employer. ). of the Temporal proximity between the protected activity and the adverse action is not by itself always dispositive of the issue of causation, but it always plays a role. Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 675 (6th Cir. 2013). Here, only eight days passed between Ochoa Plaintiff s memorializing employment. of meeting her with decision to and Ochoa s terminate written Plaintiff s Under the circumstances present here, that temporal proximity is sufficient by itself to meet the causation prong of 15 Plaintiff s prima facie case. Co., 516 F.3d 516, 525 See Mickey v. Zeidler Tool & Die (6th Cir. 2008)( Where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. ). Finally, evidence as sufficient Defendant s proffered discussed to above, demonstrate reason for Plaintiff has at stage this Plaintiff s adduced that termination was pretextual, whether for race-based animus or as a retaliatory move for complaining about the race-based comments made by summary judgment as to management. Defendant s motion for Plaintiff s retaliation claims is thus DENIED. c. Defendant s Motion to Strike In its analysis of the record and the motions before it, the Court did not rely on the contested passages of the deposition that Defendant seeks to strike (doc. 30). the Court denies the motion as moot. Therefore, Should this case proceed to trial, the Court will rule on the admissibility of evidence in due course. IV. Conclusion 16 Plaintiff has adduced sufficient evidence to meet her prima facie case both as to her race-based discrimination claims and as to her retaliation claims and to show that Defendant s proffered reason for her termination was pretextual. Therefore, Defendant s motion for summary judgment is DENIED (doc. 25). This matter is set for a final pretrial conference on October 2, 2013 at 2:00 P.M., with a three-day jury trial to commence on November 12, 2013 at 9:30 A.M. SO ORDERED. Dated: August 8, 2013 s/S. Arthur Spiegel S. Arthur Spiegel United States Senior District Judge 17
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