The opinion of the court was delivered by: Herman J. Weber, Senior Judge United States District Court
This matter is before the Court upon the Report and Recommendation ("R&R") of the United States Magistrate Judge (doc. no. 31), plaintiff's objections (doc. no. 34), defendant's response (doc. no. 37), and plaintiff's response (doc. no. 38). The Magistrate Judge concluded that no genuine issues of material fact existed with respect to plaintiff's claims of discrimination based on disparate treatment, retaliation, or hostile environment, or her claim based on a constructive discharge, and defendant was entitled to judgment as a matter of law. The Magistrate Judge therefore recommended that defendant's Motion to Dismiss and/or for Summary Judgment be granted.
Plaintiff objects to the R&R on the grounds that his findings and conclusions are contrary to law.
In the R&R, the Magistrate Judge set forth the relevant factual and procedural background for his recommendation as follows.
Plaintiff Anita L. Gentry ("plaintiff"), an African-American (see Doc. 25, Ex. A), was hired by Wells Fargo Home Mortgage ("defendant") in December 2001 as a Mortgage Closing Specialist 1. (Id. , Ex. G.) In March or April 2002, plaintiff was assigned a new supervisor, Jean Sexton. (See id. , Ex. H at 26, 28.) In May or June 2002, plaintiff complained that Ms. Sexton made insulting remarks to her, calling her names such as "cupcake," "honeybuns," and "chickie." (Id. at 28.) Plaintiff asked Ms. Sexton to stop making such remarks and requested diversity or sensitivity training. (See id. at 28-31; Doc. 25, Ex. L.) In response to plaintiff's request, her department was sent to a diversity training workshop in June 2002. (Id. , Ex. L.)
On May 24, 2002, plaintiff received a verbal warning from Ms. Sexton for poor customer service. (Id. , Ex. I.) In August 2002, plaintiff was moved to the Bond Department. (Id. , Ex. G at ¶ 3.) Her requests for formal training on bond loans were denied. (Id. at ¶ 8.) In December 2002, after being placed on a performance improvement plan ("PIP"), plaintiff began getting sick. (See Doc. 27-2 at 19.) On December 11, 2002, plaintiff went on medical leave and did not return to work until January 27, 2003. (Id. ; Doc. 25, Ex. H. at 82.) Plaintiff was granted a second medical leave from February 4 to February 23, 2003, when she resigned her position*fn1 . (See Doc. 25, Ex. G-2; Doc. 27-3 at 7.)
On July 1, 2003, plaintiff filed a charge of discrimination with the Ohio Civil Rights Commission alleging that she had been subjected to racial harassment and retaliation, that she had been denied promotions and the same working conditions as white employees, and that she had been forced to resign. (Doc. 25, Ex. A.) The Commission issued a notice of dismissal and right to sue on January 2, 2003 (sic)*fn2 . (Id. , Ex. B.)
Plaintiff initiated the present action on January 16, 2004, by filing a pro se complaint pursuant to 42 U.S.C. § 2000e-5 seeking redress for the alleged unlawful harassment and retaliation. (Doc. 1.) She amended her complaint twice, clarifying her claims and adding factual allegations. (See Docs. 5, 19.) The second amended complaint was filed on November 30, 2004. (Doc. 19.)
Defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and/or summary judgment pursuant to Fed. R. Civ. P. 56 on the ground that plaintiff failed to make a prima facie showing of discrimination. (Doc. 25.) The matter is ripe for review.
II. Summary Judgment Standard
The Magistrate Judge set forth the standard for deciding defendant's Motion in his R&R as follows.
Rule 12(b) of the Federal Rules of Civil Procedure provides in pertinent part as follows:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. Fed. R. Civ. P. 12(b). See also Flint v. Kentucky Dep't of Corr. , 270 F.3d 340, 348 (6th Cir. 2001).
Because the parties have presented matters outside the pleadings (see Doc. 25, Exs. A-L; Doc. 27), the motion to dismiss should be treated as a motion for summary judgment.
Summary judgment is proper 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 governing substantive law, might affect the outcome of the action. Anderson , 477 U.S. at 248. 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).
In response to a properly supported motion, the nonmoving party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. Sixty Ivy Street Corp. v. Alexander , 822 F.2d 1432, 1435 (6th Cir. 1987) (citing First Nat'l Bank of Arizona v. Cities Serv. Co. , 391 U.S. 253, 288-89 (1968)). Conclusory allegations are not sufficient to defeat a properly supported summary judgment motion. McDonald v. Union Camp Corp. , 898 F.2d 1155, 1162 (6th Cir. 1990) (citing Patterson v. General Motors Corp. , 631 F.2d 476, 482 (7th Cir. 1980), cert. denied , 451 U.S. 914 (1981)).
The Court's function is not to weigh the evidence and determine the truth of the matters asserted but to determine if there is a genuine issue of material fact for trial. Anderson , 477 U.S. at 249. The Court is not duty bound to search the entire record in an effort to establish a lack of genuinely disputed material facts. Guarino v. Brookfield Twp. Trs. , 980 F.2d 399, 404 (6th Cir. 1992); InterRoyal Corp. v. Sponseller , 889 F.2d 108, 111 (6th Cir. 1989), cert. denied sub nom. Superior Roll Forming Co. v. Interroyal Corp. , 494 U.S. 1091 (1990). Rather, the burden is on the nonmoving party "to present affirmative evidence to defeat a properly supported motion for summary judgment," Street v. J.C. Bradford & Co. , 886 F.2d 1472, 1479-80 (6th Cir. 1989), and to designate specific facts in dispute. Anderson , 477 U.S. at 250; Guarino , 980 F.2d at 404-05.
III. Analysis of the Magistrate Judge
The Magistrate Judge set forth his analysis in the R&R as follows. Defendant is entitled to judgment as a matter of law because plaintiff is unable to make a prima facie showing of discrimination based on disparate treatment, retaliation, or hostile environment. Defendant also is entitled to judgment as a matter of law because plaintiff cannot prevail on a claim of constructive discharge.
First, plaintiff has not made a prima facie showing of racial discrimination as a result of disparate treatment.
In order to prevail on a claim of disparate treatment, plaintiff bears the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). In order to make this showing, in the absence of direct evidence of discrimination, she must demonstrate: (1) that she was in a protected class; (2) that she was qualified for the job that she held during the time in question; (3) that she suffered an adverse employment action; and (4) that she was treated differently than similarly-situated individuals who were not members of her protected class. Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp. , 411 U.S. at 802-03.
To sufficiently allege an adverse employment action, plaintiff must show a "materially adverse change in the terms of . . . employment, [such as] termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities." Kocsis v. Multi-Care Mgmt., Inc. , 97 F.3d 876, 885-86 (6th Cir. 1996) (internal quotation marks and citations omitted). The Sixth Circuit has consistently held that de minimis employment actions are not materially adverse and, thus, not actionable. Bowman v. Shawnee State Univ. , 220 F.3d 456, 462 (6th Cir. 2000). The "change in employment conditions 'must be more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Vitt v. City of Cincinnati , No. 03-3080, 2004 WL 1147256, at *4 (6th Cir. May 20, 2004) (unpublished) (quoting Kocsis , 97 F.3d at 886)).
The Sixth Circuit also has defined "similarly situated" employees for purposes of evaluating employment discrimination claims. "Similarly situated" employees are employees who "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." Mitchell v. Toledo Hosp. , 964 F.2d 577, 583 (6th Cir. 1992).
If plaintiff makes a prima facie showing, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for the action taken. See Burdine , 450 U.S. at 253. If defendant is able to meet this burden, plaintiff is then required to prove by a preponderance of the evidence that the legitimate reasons offered by defendant were a pretext for discrimination. Id. A plaintiff can demonstrate pretext by: (1) offering proof that the given reason did not exist in fact; (2) establishing that, while the given reason is factual, it was not the true reason for the allegedly discriminatory action; or (3) showing that the given reason was not sufficient for the action. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994). The ultimate burden of persuading the trier of fact that defendant intentionally discriminated against plaintiff remains at all times with plaintiff. See Burdine, 450 U.S. at 253.
Plaintiff cannot prevail on her claim of disparate treatment, in part, because she has not shown that she was treated differently than any similarly-situated individual who was not a member of her protected class. See Mitchell , 964 F.2d at 582-83. See also ...