TIMOTHY S. BLACK, District Judge.
This civil action is before the Court on: (1) Plaintiff's motion to strike (Doc. 77) and the parties' responsive memoranda (Docs. 82, 83) and (2) Defendant's motion for summary judgment (Doc. 70) and the parties' responsive memoranda (Docs. 74, 80).
7. Plaintiff's annual Performance Review in June 2008 was positive, but Lineback instructed her to take graduate courses in the evenings so that she would not be away from the office during regular working hours. Lineback also cautioned her about the need to be more patient with colleagues. (Doc. 61 at 189-192; Doc. 64 at 66).
Federal Rule of Civil Procedure 12(f) permits a Court to strike from a pleading matters that are "redundant, immaterial, impertinent, or scandalous." Motions to strike are addressed in the sound discretion of the trial court, but are generally disfavored. Ameriwood Indus. Int'l Corp. v. Arthur Andersen & Co., 961 F.Supp. 1078, 1083 (W.D. Mich, 1997). Striking pleadings is considered a drastic remedy to be used sparingly and only when the purposes of justice so require. Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953). "A motion to strike should be granted only when the pleading stricken has no possible relation to the controversy." Id.
A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of showing the absence of genuine disputes over facts which, under the substantive law governing the issue, might affect the outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must be construed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248 (1986).
To prove a Section 1983 claim, plaintiff must establish that defendant both acted under color of state law and deprived the plaintiff of a right secured under federal law. Handy-Clay v. City of Memphis, 695 F.3d 531, 539 (6th Cir. 2012). Defendant concedes that Lineback, as an assistant dean at a state university, acted under color of state law. However, Defendant maintains that Plaintiff cannot prove that Lineback deprived her of her rights guaranteed by the Equal Protection Clause.
To allege a prima facie case of discrimination in a typical case, a plaintiff must assert that she: (1) is a member of a protected class; (2) was qualified for the job; (3) suffered an adverse employment decision; and (4) was replaced by a non-protected employee. Newman v. Fed. Express Corp., 266 F.3d 401, 406 (6th Cir. 2001). In a reverse discrimination case, where a member of a racial majority alleges racial discrimination, the first and fourth prongs of the test are different. Sutherland v. Michigan Dep't of Treasury, 344 F.3d 604 (6th Cir. 2003).
First, Plaintiff must "demonstrate background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority." Morris v. Family Dollar Stores of Ohio, Inc., 320 Fed. Appx. 330, 339 (6th Cir. 2009). Such background circumstances can be established through evidence of the employer's unlawful consideration of race in the past to justify "a suspicion that incidents of capricious discrimination against whites because of their race may be likely." Zambetti v. Cuyahoga Cmty. College, 314 F.3d 249, 255 (6th Cir. 2002). Alternatively, Plaintiff can show background circumstances by demonstrating that the employer was a member of the same minority race as the employees whom he allegedly favored. Morris, 320 Fed. Appx. at 340, n. 11.
Most of the decisionmakers and contributors to Plaintiff's termination were not African-American. Lineback is Caucasian. When Plaintiff was initially hired, both the UCBA's Dean and Assistant Dean to whom Plaintiff reported were Caucasian. At the time of her termination, the Interim Dean was Caucasian. Deborah deGroot-Osswald, the Human Resources official who guided Lineback through the final stages of the termination, and Lauren Lantz, the Labor Relations employee whom deGroot-Osswald consulted about the termination, both are Caucasian. Frank Wray, the faculty member who oversaw the 2008 survey of faculty advisers which was highly critical of Plaintiff, is also Caucasian.
In fact, there is evidence that Lineback was observed to have "favorites" who were Caucasian. Deborah Herrick, who is Caucasian and was a direct report to Lineback and later to Christopher Powers observed that Powers, who is Caucasian, received preferential treatment from Lineback. For example, Herrick testified that Lineback would meet with Powers more than she would meet with other directors. (Doc. 68 at 68-69). Herrick also testified that Tresha Lewis, who is Caucasian and was a direct report to Lineback, "seemed to have an open schedule of coming and going that other people weren't able to have." (Doc. 68 at 70). In fact, Plaintiff testified that she agreed with Herrick's observations that Powers and Lewis received preferential treatment. (Doc. 61 at 27-28). Plaintiff also observed that John Kraimer, a direct report to Lineback who is Caucasian, "came and went as he pleased." (Id. at 130). Moreover, in her initial complaint of discrimination with the EEOC regarding her termination, Plaintiff identified five Caucasians and no African-Americans as having been treated better than she was. (Doc. 61, Ex. J).
Sandra Parker, UCBA's Director of Institutional Research, confided with Plaintiff, Herrick, Kegler, and several others in UCBA's Student Affairs Department. Herrick opined to Parker that Lineback had favorites whom Parker referred to as her "team of fair haired children." (Doc. 69 at 34-35). Parker identified the "fair haired children" as Powers, Lewis, Carly Dennis, Ashley Sallee, Tiffany Williams, and Abby Sennett, all of whom are Caucasian. (Id. at 53).
Plaintiff viewed Helen Kegler, who is African-American, as receiving favorable treatment, but this view was not shared by her colleagues. Parker did not perceive Kegler as one of Lineback's favorites. (Doc. 69 at 35). Kegler, in fact, had expressed to Parker that "if you weren't one of Pam's favorites, that she was basically looking for an excuse to get rid of [you]." (Id. at 39). Kegler told Parker that she believed Lineback favored Caucasians. (Id. at 56).
Plaintiff argues that Lineback's belief that Helen Kegler, who is African-American, was quick to pull the "race card" constitutes evidence that Lineback is the unusual employer who discriminates against Caucasians. However, this argument has been rejected by other courts. See, e.g., Gooden v. Ryan's Restaurant Group, Inc., No. 5:04cv179, 2007 U.S. Dist. LEXIS 19336, at *9 (W.D. Ky. 2007) (rejecting plaintiff's argument that comments created background circumstances that the defendant was the unusual employer who discriminated against the majority: "You're a white male; she is a black female. And the company feels that they face less risk of being sued if we fire you than if we fire someone that we know plays the race card. We've told you before she plays the race card. You've been told to leave her alone, and the company just feels like it faces more of a danger of a suit, more risk by terminating her than terminating you."). The court in Gooden was persuaded in part by the fact that the employer had disciplined the African-American female accuser in the past, thus negating the plaintiff's argument that the employer had a policy of not disciplining African-American employees. Id. at 10, 24. The court also noted that plaintiff failed to mention race discrimination in his filings with the EEOC. Id. at 24.
In the instant case, Lineback did not make any comments nearly as explicit as the manager in Gooden. When Lineback was questioned about the effect of Plaintiff's African-American comparator, Helen Kegler, raising racial issues, Lineback stated "[t]here was probably always a slight concern, but not enough to deter." (Doc. 64 at 52). Since the blatant statement in Gooden that the employer was disinclined to terminate an African-American who played the "race card" was not evidence of an unusual employer who discriminates against the majority, Lineback's comment on the issue — in which she claimed that Kegler's playing the "race card" did not affect how Lineback supervised her — certainly is not. Also synonymous with Gooden: (1) Lineback had disciplined Kegler in the past through a Performance Improvement Plan; and (2) Plaintiff failed to mention race discrimination in her filings with the EEOC.
Accordingly, Plaintiff failed to allege background circumstances to support the suspicion that Defendant is the unusual employer who discriminates against the majority.
Even if there were an issue of fact regarding the first element, Plaintiff fails to satisfy the fourth element, by alleging that a similarly-situated employee of a different race received preferable treatment.
Helen Kegler, who is African-American, reported directly to Lineback. (Doc. 61 at 258-60). Kegler was subject to the same attendance standards as Plaintiff. (Doc. 64 at 34, 120-21). However, Lineback never observed Kegler abusing them. When Lineback worked in the same suite as Kegler, she observed that Kegler consistently came to work at 8:00 a.m. every day and worked until 5:00 p.m., except on Fridays. Kegler was "scrupulous" about reporting her time away from the office. (Id. at 120).
Both Plaintiff and Kegler were placed on PIPs. However, Kegler complied with all aspects of her PIP and Plaintiff did not. While Kegler's performance started to decline around the time UC was about to terminate Plaintiff, Plaintiff nonetheless continued to be a "more difficult employee."
The fact that Lineback did not treat Plaintiff and Kegler identically does not prove that disparate treatment occurred. For example, Lineback testified that she enlisted the support of Alecia Trammer from the Human Resources Department and former UCBA Dean Dolores Straker, who are African-American, when she disciplined Kegler in hopes that it might steer the focus away from race issues and toward performance issues. (Doc. 64 at 50). When asked how Kegler's focus on race issues affected her decision making, Lineback testified:
(Doc. 64 at 33-34). This testimony illustrates that in relevant matters, Lineback treated Plaintiff and Kegler similarly.
Plaintiff's argument that she was treated differently than employees who were not on a PIP is irrelevant. Plaintiff continually cites to practices that applied to employees who were not on a PIP — for example, working through lunch and flex time — and argues that since she followed some of those general practices when she was on a PIP, UC did not have legitimate reasons to discipline her. (Doc. 74 at 3, 16, 32). However, during a PIP, a supervisor could require a set schedule: "[w]hatever your established hours are, you would be expected to work during those standard hours, whatever those hours would be." (Doc. 65 at 84). Lineback let Plaintiff choose the standard hours she would work and Plaintiff chose 8:00 a.m. to 5:00 p.m. However, Plaintiff repeatedly failed to work those hours, insisting that as long as UC got its 40 hour week, she was in compliance with the PIP.
Ultimately, the Court finds that because Kegler complied with her PIP without tardiness, attendance, and time reporting problems, she was not similarly situated to Plaintiff.
Plaintiff also identifies Doran Brock as a similarly-situated employee who received favorable treatment. Brock held the position of Senior Enrollment Services Counsel at UCBA, in which he counseled students on financial aid issues. (Doc. 61 at 262, Ex. OO). He reported directly to Christopher Powers, who is Caucasian. Powers reported to Lineback that Brock had trouble getting to work on time, but Powers made adjustments by letting him work into the evenings, which was conducive to his position. (Doc. 64 at 58-59). Lineback discussed possible discipline for Brock, but Powers concluded that by allowing him to flex his time, good results could be achieved. (Id. at 60-61).
Brock held a position with different responsibilities, reported to a different supervisor, and by his supervisor's estimation could adjust his work hours by working evenings to make up for late arrivals, thus he was not similarly situated to Plaintiff. In contrast, Plaintiff was regularly reminded by Lineback about her need for "face time" during regular business hours and Lineback did not deem evening work to be an operationally sufficient substitute for Plaintiff.
Accordingly, Plaintiff failed to evidence that a similarly-situated employee of a different race received preferable treatment.
Even assuming Plaintiff could establish a prima facie case of race discrimination, which she cannot, Plaintiff cannot demonstrate that the legitimate, non-discriminatory reasons for her termination were a pretext for race discrimination. Once an employer presents a legitimate, non-discriminatory reason for discharge, the plaintiff bears the burden of showing that the proffered reasons were a pretext for impermissible discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The ultimate burden of persuasion remains with Plaintiff. An employee's opinion that he did not perform poorly is irrelevant to establishing pretext where the employer reasonably relied on specific facts before it indicating that the employee's performance was poor. Majewski v. Automatic Data Processing, 274 F.3d 1106, 1117 (6th Cir. 2001).
Plaintiff was terminated because of her repeated and consistent performance deficiencies culminating with her failed PIP. See, e.g., Stockman v. Oakcrest Dental Ctr., P.C., 480 F.3d 791, 802 (6th Cir. 2007) ("Poor performance is a legitimate, nondiscriminatory reason for terminating an employee."). Plaintiff distorts the legitimate nondiscriminatory reasons for her termination. For example, Lineback raised concerns with Plaintiff about her lack of presence in the office starting in early 2007 and continuing through late 2009, just before the PIP was issued. However, Plaintiff argues that "Lineback admits that prior to the alleged ethics complaint [in February 2010] she had not told Yates-Mattingly that she had any attendance problems which could lead to termination." (Doc. 74 at 15). In support of this point, Plaintiff points to Lineback's deposition testimony:
(Doc. 64 at 43). Contrary to Plaintiff's assertion, this testimony is significantly different from Lineback not telling Plaintiff that she did not have attendance problems that could lead to termination. Similarly, Plaintiff's argument regarding the purported lack of coaching and warnings is contradicted by evidence of Lineback's extensive verbal counseling. (Doc. 64 at 194-99, Ex. 22).
What Plaintiff characterizes as "shifting explanations" for the termination decision are all actually part of her violation of the PIP. A plaintiff cannot establish shifting explanations through "semantic nitpicking." Mann v. Navicor Group, LLC, No. 11-4028, 2012 U.S. App. LEXIS 14978, at *8 (6th Cir. July 19, 2012). Moreover, whereas shifting explanations for termination may raise questions of pretext, additional reasons for termination, which are consistent with the original explanation, do not raise issues of pretext. MacDonald-Bass v. JE Johnson Contracting, Inc., No. 10-2318, 2012 U.S. App. LEXIS 17264 (6th Cir. Aug. 13, 2012).
Plaintiff repeatedly misstates the purposes for and requirements of the PIP. The PIP did not say Plaintiff could never take time off work or that Plaintiff could not show up late for work when she did not feel well. To the contrary, the PIP stated that Plaintiff was required to: (1) "work expected hours from 8:00 a.m.-5:00 p.m."; and (2) "[n]otify supervisor within one-half hour if anticipating late arrival or need to leave early; if supervisor is unavailable, leave voice message and call supervisor's assistant." (Doc. 61, Ex. QQ). Plaintiff failed to do these things.
Plaintiff also improperly states that her interpersonal communications issues included in the PIP had "resolved" prior to the PIP being issued. (Doc. 74 at 2, 31, 34). The focus of the PIP became Plaintiff's failure to work during designated hours and to properly report leave time when she was not present during those hours. However, nothing in the record indicates that Plaintiff's relationships with coworkers, students, or faculty had improved between March 18, 2010 and June 14, 2010.
Accordingly, the record supports Defendant's contention that Plaintiff was terminated due to her failure to comply with the PIP. Plaintiff failed to present any evidence that her termination was for any reason other than her failure to meet clear PIP objectives.
Federal Rule of Civil Procedure 56 requires that all evidence relied upon in moving for summary judgment be admissible at trial. Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 576 n. 7 (6th Cir. 2013). Plaintiff argues that Defendant's summary judgment motion relies on inadmissible evidence that should be stricken from the record.
First, Plaintiff argues that deposition testimony provided by Sandra Parker regarding comments that other individuals made about Defendant Lineback are inadmissible hearsay. However, Fed. R. Evid. 803(21) provides that among the types of evidence that are not excluded by the hearsay rule are "Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character."
The testimony in question involves: (1) Deborah Herrick's comments to Parker that Lineback favored certain Caucasian coworkers who were referred to as her "team of fair haired children" and (2) Helen Kegler's comments to Parker that Lineback preferred Caucasian employees. Both categories involve statements regarding Lineback's reputation among work associates pertaining to her character. Contrary to Plaintiff's assertion otherwise, the individuals who made the statements were not making them based on rumor or speculation; both Kegler and Herrick had worked directly under Lineback for extended periods. Accordingly, these statements are not hearsay and are admissible with respect to whether Lineback was the "unusual employer" who discriminated against Caucasians. Moreover, even if the Court were to strike this testimony, Plaintiff's prima facie case for race discrimination would still fail.
Plaintiff also moves the Court to strike as hearsay Lineback's statements that Karen Faaborg, University of Cincinnati's former Senior Associate Vice President and Chief Human Resources Officer, informed Lineback of an ethics complaint about Plaintiff. Defendant has remedied this objection by filing Faaborg's affidavit. (See Doc. 80, Ex. 2). Moreover, even if the Court were to strike this testimony, Plaintiff fails to state a prima facie case.
Next, Plaintiff asks the Court to strike Herrick's testimony as an inadmissible legal conclusion. Specifically, Defendant objects to the following testimony:
(Doc. 68 at 48). Under Federal Rule of Evidence 704, testimony in the form of an opinion or inference, if otherwise admissible, is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact. Federal Rule of Evidence 701 allows lay witness opinion testimony when it is rationally based on the perception of the witness, helpful to a clear understanding of the witness's testimony, and not expert testimony.
Herrick was initially hired at UC in September 1977 and has worked full time at the University since 1989. (Doc. 68 at 14-15). Herrick's testimony was based on her perception of Lineback over a lengthy career with the University and is helpful in generally understanding the conditions at UC and Lineback. Thus, the testimony is admissible.
Moreover, even if the Court were to strike this testimony, Plaintiff fails to state a prima facie case.
Accordingly, for the foregoing reasons, Plaintiff's motion to strike (Doc. 77) is
