Opinion
CASE NO.: 99-CV-76203-DT
December 29, 2000.
OPINION
On December 29, 1999, Plaintiff filed a pro se claim of employment discrimination against Defendant under Title VII of the Civil Rights Act of 1964 alleging discrimination based upon race, gender, and disability, stemming from her discharge from employment on January 28, 1999. This matter is currently before the Court on Defendant's motion for summary judgment. Oral argument regarding Defendant's motion was heard on December 27, 2000. For the reasons stated below, Defendant's motion shall be granted.
Plaintiff has since retained counsel.
Background
Plaintiff began her employment with Defendant at its Detroit Axle Plant as an hourly production worker on August 19, 1996. On October 28, 1996, Plaintiff was promoted to a Quality Control Analyst ("Quality Analyst") position. Plaintiff's primary responsibility as a Quality Analyst was to perform quality audits on various component parts to ensure that such parts met engineering specifications. Quality Analysts were required to submit their audit measurements on an audit report, which was turned in each day at the end of their shift. In all, there were three Quality Analysts at Defendant's Detroit Axle Plant: Ibrahim Abouarab, an Indian male (first shift), Barbara Parker, an African American female (second shift), and Plaintiff, an African American female (third shift).
During her tenure as a Quality Analyst, Plaintiff received a number of verbal warnings regarding her absenteeism and tardiness. During this time period, Plaintiff was also counseled regarding her failure to abide by Defendant's "swipe card policy," under which employees were expected to swipe their company-issued swipe cards to enter and exit all facilities. Furthermore, in November of 1997, and again in September of 1998, Plaintiff claimed overtime hours for which Defendant had no evidence that she actually worked. Although Plaintiff was not subjected to any disciplinary action in connection with the time card irregularities, her time cards were amended to delete the claimed overtime.
The Court notes that Plaintiff had a history of uterine bleeding, for which she underwent surgery twice in 1998. Although Plaintiff was required to take a number of sick days due to her condition, Plaintiff does not contend that she was on sick leave for any of the days she received warnings.
In mid-1998, Plaintiff was instructed to report to the third shift area manager each day at the beginning of her shift so that she could be advised of any priority issues that needed to be addressed during her shift. In September of 1998, however, Plaintiff received a "written counseling" regarding her failure to report to the third shift area manager as instructed. In October of 1998, the union relations supervisor issued Plaintiff a written warning based upon her failure to report to the third shift area manager as instructed.
In late September/early October 1998, the third shift area manager authorized the second shift Quality Analyst, Barbara Parker, to work overtime to cover Plaintiff's job responsibilities until Plaintiff arrived, or until Parker had to leave. On some occasions, Parker would cover Plaintiffs shift until as late as 1:30 or 2:30 a.m., without ever seeing Plaintiff, whose shift was scheduled to start at 10:30 p.m. (Parker Dep. at 57).
On January 21, 1999, Parker covered Plaintiff's shift from 10:30 p.m. until 1:30 a.m., during which time Parker performed quality audits and recorded her audit measurements on an audit report. Before leaving, Parker distributed copies of her audit report to members of her supervision, and placed a copy of the report on the desk in the Gear Lab where she worked. Because Plaintiff had not arrived for work yet, Parker also left a note for Plaintiff regarding some problems she had encountered during her audits.
According to security documentation submitted to the arbiter, Plaintiff did not arrive for work until 3:13 a.m. (Def.'s Br. Supp. Mot. Summ. J., Ex. Rat at 2).
On January 22, 1999, Plaintiff's supervisor discovered that eighty separate measurements recorded on Plaintiff's audit report for January 21 were identical to those recorded on the audit report submitted by Parker. (Def.'s Br. Supp. Mot. Summ. J., Exs. M N). Believing that the coinciding measurements taken from a machine with .0001 accuracy could not have been reached in any other manner than rote duplication, Plaintiff's supervisor reported his suspicion that Plaintiff had falsified her audit report to Union Relations Supervisor Todd Hartje. The same day, Plaintiff was suspended for violating Defendant's Standard of Conduct #1 — providing false and/or misleading information to the Corporation.
Hartje conducted an investigation, which included interviews with both Plaintiff and Parker, and confirmed that Plaintiff had copied Parker's audit measurements. Hartje also reviewed Plaintiff's previous work record, which included Plaintiff's failure to follow management's instructions, time card irregularities, and unacceptable attendance. Based upon the results of this investigation, Plaintiff's suspension was converted to a discharge for cause, effective January 28, 1999. According to the notice provided to Plaintiff, her suspension of January 22, 1999, was "changed to a discharge for misconduct, violation of standard of conduct number one and overall record."
A grievance challenging Plaintiff's termination was filed pursuant to the collective bargaining agreement. Plaintiff's grievance was ultimately submitted to arbitration, and on July 23, 1999, the arbiter upheld Plaintiff's termination for cause. Plaintiff also submitted a charge against Defendant with the Equal Employment Opportunity Commission ("EEOC"), alleging race discrimination. On September 29, 1999, the EEOC issued Plaintiff a right to sue letter. Thereafter, Plaintiff filed the instant complaint against Defendant asserting discrimination based upon race, gender, and disability. On November 13, 2000, Defendant filed a motion for summary judgment.
Plaintiff's alleged disability is "weight/health problems."
Standard of Review
Summary judgment is proper only if there is no genuine issue as to any material fact, thereby entitling the moving party to judgment as a matter of law. Hunter v. Caliber Sys., Inc., 220 F.3d 702, 709 (6th Cir. 2000); see also FED. R. CIV. P. 56(c). There is no genuine issue of material fact for trial unless, by viewing the evidence in a light most favorable to the nonmoving party, a reasonable jury could "return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, the moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a material issue of fact. Celotex Corp. v. Catret, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to show that there is a genuine issue for trial. FED. R. Civ. P. 56(e); Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53. The nonmoving party must do more than show that there is some metaphysical doubt as to the material facts. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 800 (6th Cir. 1994). The nonmoving party must present significant probative evidence in support of its opposition to the motion for summary judgment. Moore v. Philip Morris Co., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993). If, after adequate time for discovery, the party bearing the burden of proof fails to make a showing sufficient to establish an essential element of his claim, summary judgment is appropriate. Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53.
Discussion
In its motion for summary judgment, Defendant first contends that Plaintiff is barred from asserting claims for gender and disability discrimination because she has failed to exhaust her administrative remedies with respect to such claims. Plaintiff has provided no response to Defendant's argument regarding these claims.
"Filing an EEOC charge against a party is a necessary prerequisite to suit." Jones v. Truck Drivers Local Union No. 299, 748 F.2d 1083, 1086 (6th Cir. 1994). In this case, Plaintiff did properly file a charge of discrimination with the Michigan Department of Civil Rights. Plaintiff's charge, however, alleged discrimination based upon race as the only charge against Defendant. (Def's Br. Supp. Mot. Summ. J., Ex. Q). In general, "the failure to check the appropriate box on an EEOC charge will deprive a court of jurisdiction to hear a claim" because "a district court's jurisdiction is `limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.'" Duggins v. Steak `N Shake, 195 F.3d 828, 832 (6th Cir. 1999) (quoting Ang v. Procter Gamble Co., 932 F.2d 540, 545 (6th Cir. 1991) (internal quotation omitted)).
Nothing in Plaintiff's charge would have prompted an investigation of discrimination based upon gender or disability. Plaintiff checked only the box regarding race discrimination. (Def.'s Br. Supp. Mot. Summ. J., Ex. Q). Furthermore, although Plaintiff states in her charge that she is "a Black woman," she also states that "there are no Black people in that position," that "the position was filled by a non-Black person shortly after [her] discharge," and that she believed she was "discharged because of her race." ( Id.). Because Plaintiff's charge raised only a claim of race discrimination, and because Plaintiff has failed to respond and articulate why "the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination" included gender and disability discrimination, the Court is satisfied that Defendant is entitled to summary judgment with respect to such claims.
Therefore, the only remaining claim is Plaintiff's claim based upon race discrimination. "A plaintiff may establish a claim of discrimination either by introducing direct evidence of discrimination, or by proving circumstantial evidence which would support an inference of discrimination." Johnson v. University of Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000) (citing Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997)). "`The direct evidence and the circumstantial evidence paths are mutually exclusive; a plaintiff need only prove one or the other, not both.'" Id. (quoting Kline, 128 F.3d at 348).
As the Sixth Circuit has recognized, however, "[i]t is the rare situation when direct evidence of discrimination is readily available, thus victims of employment discrimination are permitted to establish their cases through inferential and circumstantial proof." Kline, 128 F.3d at 348. The circumstantial evidence approach requires only that a plaintiff present sufficient evidence to establish an inference of discrimination under the familiar McDonnell Douglas burden-shifting framework. Johnson, 215 F.3d at 572 (referring to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Under this approach, the plaintiff bears the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination by proving: 1) she is a member of a protected class; 2) she was qualified for her job and performed it satisfactorily; 3) despite her qualifications and performance, she suffered an adverse employment action; and 4) that she was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside her protected class. id. at 572-73; see also Laderbach, 207 F.3d at 829.
In his brief in response to Defendant's motion for summary judgment, as well as at the hearing on December 27, counsel for Plaintiff relied exclusively upon the McDonnell Douglas burden-shifting framework.
If the plaintiff succeeds at establishing a prima facie case of discrimination, "a mandatory presumption of discrimination is created," thereby shifting the burden to the defendant to "`articulate some legitimate, nondiscriminatory reason for the employee's rejection.'" Id. at 573 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). "It is important to note, however, that although the McDonnell Douglas presumption shifts the burden of production to the defendant, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff'" St. Maiy's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993) (quoting Texas Dep't Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)).
If the defendant articulates a legitimate, nondiscriminatory reason for the adverse employment action, the presumption is rebutted and "`the factual inquiry proceeds to a new level of specificity' with the plaintiff shouldering the burden of `demonstrating that the proffered reason was not the true reason for the employment decision," but "merely a pretext for intentional discrimination. Cline v. Catholic Diocese of Toledo, 199 F.3d 853, 859 (6th Cir. 1999) (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095). A plaintiff may establish pretext by showing: "(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate [the] discharge, or (3) that they were insufficient to motivate discharge." Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (emphasis in original); see also Wheeler v. McKinley Enters., 937 F.2d 1158, 1162 (6th Cir. 1991)). "`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.'" Johnson, 215 F.3d at 573 (quoting St. Mary's Honor Ctr., 509 U.S. at 5516, 113 S.Ct. at 2752).
In her response, Plaintiff relies exclusively upon the burden-shifting scheme of McDonnell Douglas in attempting to establish her claim. (Pl.'s Resp. at 11). Defendant, however, contends that it is entitled to summary judgment with respect to Plaintiff's race discrimination claim because Plaintiff has failed to establish a prima facie case, or, in the alternative, because Plaintiff is unable to show that Defendant's proffered legitimate, nondiscriminatory reason for her discharge was really a pretext for discrimination.
I. Prima Facie Case
As previously stated, to establish a prima facie case under the McDonnell Douglas burden-shifting scheme, Plaintiff must establish that (1) she is a member of a protected class; (2) she was qualified for her job and performed it satisfactorily; (3) despite her qualifications and performance, she suffered an adverse employment action; and (4) that she was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside her protected class. Johnson, 215 F.3d at 572-73. It is undisputed that Plaintiff, an African American, is a member of a protected class, was qualified for her job as a Quality Analyst, and suffered an adverse employment action, i.e., her termination on January 26, 1999.
Although Plaintiff's pro se complaint also alleges failure to promote, failure to train, and "differential terms and conditions compared to other employees," her response cites her termination as the only adverse action forming the basis of her claim. ( See Compl. ¶ 9; Pl.'s Resp. at 12).
Defendant, however, contends that Plaintiff has failed to establish that she was treated less favorably than a non-protected employee for the same or similar conduct. As evidence that she was treated less favorably than a similarly situated individual outside the protected class, Plaintiff cites Cynthia Murphy, a Caucasian female who was previously employed in the same job as Plaintiff (Pl.'s Resp. at 12-13). According to Plaintiff, Murphy "had the same misconduct (attendance problems) which was equal to or worse than the misconduct (attendance problems) of the Plaintiff," yet, Murphy was never reported to the Human Relations Department for counseling. ( Id. at 13) (emphasis in original). Plaintiff also cites the fact that when Murphy worked third shift, she was never required to report to the area manager at the beginning of her shift, and that during this time period, Plaintiff, who was the second shift quality analyst, was never asked to stay over and start the third shift. ( Id. at 14).
Plaintiff also cites the fact that Murphy, as well as Ibrahim Abouarab and Gerald Shustek, did not have college degrees when they were hired into their Quality Analyst positions, as was required by Defendant's hiring policies. (Pl.'s Resp. at 13). According to Plaintiff, "Defendant hired only white employees for the job of quality analyst who had not previously obtained a college degree." ( Id. at 13). Contrary to Plaintiff's assertion, however, Abouarab is Indian. Furthermore, the Court fails to see how this fact has any connection to whether Plaintiff was treated less favorably than Murphy for similar attendance problems.
Although Plaintiff need not demonstrate an exact correlation with the employee allegedly receiving more favorable treatment, she must establish that they were similar "in all relevant aspects." Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (citing Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994)). To be similarly situated, the individual with whom Plaintiff seeks to compare herself "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." Ercegovich, 154 F.3d at 352 (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)).
It is undisputed that Murphy and Plaintiff dealt with the same supervisor and were subject to the same standards. Murphy and Plaintiff, however, did not engage in the same conduct. Although Plaintiff cites her misconduct as purely her attendance problems, it is clear from the record in this case that Plaintiff's misconduct consisted of both her violation of Standard of Conduct #1 — providing false and/or misleading information to the Corporation, and her "overall record." (Def.'s Br. Supp. Mot. Summ. J., Exs. P, Q, R).
Furthermore, although Murphy was not reported to the Human Relations Department for counseling regarding her absenteeism, she did receive several warnings regarding such. (Pl.'s Resp., Ex. 25). In fact, on one occasion, Murphy received a disciplinary layoff of one day due to her absenteeism. ( Id.). Moreover, as Plaintiff acknowledges, Murphy's employment with Defendant was tenninated in May of 1998 due to her unexcused absence from work. ( Id. at 14 Ex. 25). According to Plaintiff, "Murphy was taken off the payroll for the reason that she would not come to work. She was not taken off the payroll for attendance, which was one of the reasons given for the discharge of Plaintiff." ( Id. at 14).
In this Court's opinion, the record supports the conclusion that Plaintiff was not discharged solely for her attendance problems. In fact, Hartje testified in his deposition that had Plaintiff not violated Standard of Conduct #1, she would not have been terminated solely due to her attendance or tardiness problems. (Hartje Dep. at 62-63). As Plaintiff acknowledges in her response, she was terminated for "(1) Presentation of fraudulent audit information and (2) Overall Record, which includes attendance, tardiness and failure to follow directions." (Pl.'s Resp. at 5-6, ¶ 40) (emphasis in original). There is no evidence in the record that Murphy also violated Standard of Conduct #1 by duplicating another Quality Analyst's work product. Therefore, the Court is satisfied that Murphy is an inappropriate comparison for purposes of establishing a prima facie claim of race discrimination.
Local union chairman Donald Thomas, however, testified that Plaintiff's absenteeism would have been grounds for discharge in itself (Thomas Dep. at 34).
It is undisputed, however, that Plaintiff was replaced by Gino Mangino, a Caucasian male. (Stirling Dep. at 23). Therefore, Plaintiff has produced evidence "that she was replaced by a person outside the protected class," and accordingly, has established a prima facie claim under the McDonnell Douglas burden-shifting framework.
2. Legitimate. Non-Discriminatory Reason for the Discharge
Nonetheless, Defendant contends that it had legitimate, nondiscriminatory reason for Plaintiff's discharge, i.e., her violation of Standard of Conduct #1, coupled with her overall work record. Plaintiff acknowledges that she "copied [Parker's] measurements to her report, and turned in a single report that included the measurements of [Parker]." (Pl.'s Resp. at 5, ¶ 36). Furthermore, Plaintiff does not dispute the fact that she received counseling on several occasions for the conduct discussed supra. Accordingly, the Court is satisfied that Defendant has come forward with a legitimate, nondiscriminatory reason for Plaintiff's discharge.
3. Evidence of Pretext
Because Defendant has come forward with a legitimate, nondiscriminatory reason for the discharge, the burden shifts to Plaintiff to establish, by a preponderance of the evidence, that such reason was really a pretext for discrimination. Plaintiff first cites the fact that:
The act that formed the basis for the charge of providing false and misleading information to the corporation was duplicated by the Plaintiff in mid to late December without penalty. In other words, Plaintiff did the same thing that she was discharged for within a month of the fateful January 20, 1999, date.
(Pl's Resp. at 15). Plaintiff, however, has provided no proof that Defendant was aware of this prior incident. Therefore, the Court finds Plaintiff's admission insufficient to establish pretext on behalf of Defendant.
Plaintiff also states that this was "a brand new situation where no one but the Plaintiff was put in the position of having to deal with the measurements of another quality analyst performing part of the audit of her shift," and that "no training or instructions from a supervisor (verbal or written) were ever given regarding this type of situation." ( Id.). The fact that Plaintiff was allegedly never "trained" as to what to do in this situation, however, does not, in this Court's opinion, support a conclusion that Plaintiff's discharge was really motivated by racial discrimination. It is undisputed that Plaintiff copied the measurements taken by Parker onto her own audit report and submitted them to Defendant as her own. It is further undisputed that Defendant, the union, and the arbiter, found Plaintiff's conduct to be grounds for her discharge under Standard of Conduct #1. Although the fact that Plaintiff was allegedly not aware that what she was doing was improper may support a conclusion that her discharge was unfair, it does not support a conclusion that the real reason for her discharge was discrimination.
The record reveals that from October 1998 up until Plaintiff's termination, Parker was required to stay over into the third shift "quite a few" times or, more specifically, "almost every day" in a given five day period, because Plaintiff was tardy or absent. (Parker Dep. at 29 54). While Plaintiff asserts that she followed the same procedure she followed on January 21, 1999, on one prior occasion, i.e., she copied Parker's measurements onto her own report, the Court can infer that on the other occasions on which Parker stayed over into the third shift, Plaintiff's report contained only her own measurements, i.e., those taken by her. Counsel for Plaintiff did not dispute this inference during the hearing. Given this inference, it is difficult for the Court to accept Plaintiff's contention that she was unaware that it was improper to copy Parker's measurements onto her report. In any event, as discussed infra, the issue is not whether Plaintiff in fact violated Standard of Conduct #1 — intentionally or otherwise. Rather, what is important is whether Defendant had reason to believe that Plaintiff violated Standard of Conduct #1, and whether such belief was the reason for the discharge.
Next, as evidence of pretext, Plaintiff cites the fact that although "[b]y itself and standing alone, providing false and misleading information to the corporation is a dischargeable offense," Defendant "felt the need to shore up its reason for termination to include overall work record," including her prior absenteeism and tardiness, failure to follow instructions, and overtime fraud. (Id. at 15-16). The mere fact that Defendant considered Plaintiff's overall work record in deciding to discharge her, however, does not, in this Court's opinion, lead to a conclusion that her discharge was really motivated by discrimination.
Plaintiff also cites the fact that one of the charges occurred more than one year prior to her termination in January of 1999 and therefore, under her collective bargaining agreement, should not have been considered in discharging her.
Next, Plaintiff cites the fact that "[n]o salaried bargaining unit employee has ever been discharged for providing false and misleading information to the corporation, attendance, overtime fraud, or failure to follow a supervisor's instructions." (Pl.'s Resp. at 17). According to deposition testimony, Plaintiff is the only employee ever charged with, or disciplined for, violating Standard of Conduct #1. (See Thomas Dep. at 35, Hartje Dep. at 56). The mere fact that before Plaintiff, Defendant had never charged or disciplined an employee for violating Standard of Conduct #1, by itself, does not establish pretext. Plaintiff has failed to present any evidence that any other employee engaged in conduct warranting an investigation under Standard of Conduct #1. Without such evidence, it appears to the Court that Plaintiff may be the first employee caught engaging in such conduct, and therefore, the first employee discharged for such conduct.
Plaintiff has also presented evidence that during this time period, she had complained to various personnel that her supervisors were discriminating against her. For example, Douglas Thomas, chairman of the local union, testified that Plaintiff had complained to him that her supervisors were discriminating against her on account of her race. (Thomas Dep. at 10-12). Thomas also testified that at least one other employee, Cynthia Davis, an African American female who worked as a Quality Analyst for a period of time, had also complained that she was being discriminated against in terms of training because of her race. (Thomas Dep. at 16).
Hartje also recalled in his deposition that Plaintiff had complained about racial discrimination by her supervisors. (Hartje Dep. at 44). In an executive summary prepared by Hartje on October 6, 1998, Hartje states that Plaintiff raised the issue of harassment in a meeting on September 10, 1998, between himself, Plaintiff, and Plaintiff's immediate supervisor, David Stirling. (Pl.'s Resp., Ex. 10 at 3). According to Hartje's summary, Plaintiff complained that she was "being singled out by the Company for harassment and discrimination because of all the attention her attendance record is generating, her being instructed to report to a `baby-sitter' each night, and the Corporation's refusal to promote her to open jobs." (Id.). Hartje subsequently spoke to Stirling and Jerry Shustek, another of Plaintiff's supervisors, regarding such claims. (Id.). Plaintiff's accusations continued into October of 1998. (Id.).
Plaintiff also received her worst work evaluation in December of 1998, after she had first met with management and expressed her concerns regarding racial discrimination. (Pl.'s Resp. at 17). For example, Plaintiff's probationary employee appraisal in October of 1996 was, in general, positive, with a recommendation that she be retained. (Pl.'s Resp., Ex. 7). Similarly, Plaintiff received a positive salaried performance review for 1997, on which she was ranked a "contributor" on Defendant's review scale consisting of "development needed," "contributor," "significant contributor," and "role model." ( Id.). In December of 1998, however, Plaintiff received a significantly less favorable review and was ranked as "development needed." ( Id.). This review was prepared by Stirling.
The appraisal provided for recommendations of "retain employee," "review with personnel," and "separate employee." (Pl.'s Resp., Ex. 7).
Plaintiff's 1997 review, however, did indicate that "[a] better absentee record and correction of some personal problems [would] allow for more training." ( Id.).
However, the decision to terminate Plaintiff was based upon Hartje's independent investigation of the circumstances surrounding the duplicate audit reports, as well as Plaintiff's prior work record, which Plaintiff does not dispute. Plaintiff has presented no evidence that the alleged racial animus on behalf of Stirling and Shustek played any role in Hartje's investigation, or the ultimate decision to terminate her, made by John Kelly, the Union Resources Manager. The mere fact that Stirling brought Plaintiff's misconduct to Hartje's attention, without more, is insufficient to establish pretext. See Wilson v. Stroh Co., Inc., 952 F.2d 942, 946 (6th Cir. 1992).
In short, there is absolutely no evidence that Hartje or Kelly, the individuals responsible for the final decision regarding Plaintiff's termination, were in any way motivated by race. Plaintiff has failed to present any evidence that the stated reasons for her discharge had no basis in fact, were not the actual reasons for her discharge, or were insufficient to explain Defendant's action. Manzer, 29 F.3d at 1084. Accordingly, the Court is satisfied that there is no genuine issue of material fact and that Defendant is entitled to summary judgment with respect to Plaintiff's race discrimination claim.
For the first time in her response to Defendant's motion for summary judgment, Plaintiff also raises a claim of retaliatory harassment based upon the above cited events. (Pl.'s Resp. at 17-18). Plaintiff's one-paragraph argument in support of such a claim, which in essence amounts to nothing more than counsel for Plaintiff's assertion that "the above-described conduct and the timing thereof establishes a prima facie case of retaliatory harassment," is not properly before the Court and therefore, will not be addressed.
Conclusion
For the reasons stated above, Defendant's motion for summary judgment shall be granted, and Plaintiff's complaint shall be dismissed in its entirety.A Judgment consistent with this Opinion shall issue forthwith.