*1 Plaintiff-Appellant, LOGAN, Eileen A. INC., Defendant-Appellee.
DENNY’S,
No. 99-4395. Appeals, States Court
United
Sixth Circuit. 26, 2001.
Argued Jan. Aug. Filed
Decided and
discrimination, we REVERSE the district granting court’s order Defendant’s motion summary for judgment and REMAND the case for trial.
BACKGROUND History Procedural 9, 1998, Plaintiff, On June Eileen Logan, an African American female who had been employed by Defendant as a server for more than years, ten filed a seven-count complaint in the district court alleging, among things, other that Defendant violat- ed her civil rights under Title VII of the Rights Civil Act engaging in briefed), Zapka (argued Dennis P. and discriminatory treatment which led to Schneider, Maguire, Zapka Leuchtag, & Plaintiffs constructive discharge. July On Cleveland, OH, for Plaintiff-Appellant. 29, 1998, Defendant an filed answer in one, response two, six, to counts part (briefed), A. Keith Ashmus Brian J. Kel- of count seven of complaint; Plaintiffs ly briefed), Ward, (argued and Frantz & filed a motion to dismiss as to counts Cleveland, OH, for Defendant-Appellee. three, four, five and part of count seven of JONES, BATCHELDER, Before: complaint. The district court thereaf- CLAY, Judges. Circuit granted ter Defendant’s motion to dismiss these which counts included “Plaintiffs CLAY, J., opinion delivered the of the claims of discrimination in violation of Ohio court, JONES, J., in which joined. (barred § Rev.Code by period limi- BATCHELDER, 578-587), (pp. J. tation), tortious interference with an em- a separate delivered dissenting opinion. contract, ployment negligent infliction of distress, emotional and a superfluous claim OPINION (J.A. for willful and wanton conduct.” 3). CLAY, 17 n. The district court’s decision Judge. Circuit regard is not at on appeal. issue Plaintiff, Eileen Logan, Eileen f/k/a Clark, appeals from the district court’s Defendant filed a motion summary for granting summary order judgment 19, 1999, to De- judgment April respect fendant, Inc., Denny’s on Plaintiffs race remaining counts. Defendant main- discrimination claim brought under Title tained that Plaintiff did not establish a VII, 2000e, seq. et § Because prima U.S.C. case of discrimination under fade we believe that the district court erred in Title VII inasmuch failed to finding that Plaintiff failed to establish a demonstrate the elements of a constructive prima discrimination, case of discharge, race and therefore failed to establish fade and erred in concluding that no genuine that she requisite suffered the adverse em- issue of material fact remained prima ployment as to action for case. fade whether proffered Defendant’s reason for Plaintiff filed memorandum in opposition disciplinary action pretext was a summary to Defendant’s motion for judg- summary judgment and dis- motion for ment; reply; and Defen- filed case, and it is from this missing to its supplement filed a dant thereafter chal- appeals that Plaintiff now judgment motion. only the of her Title VII lenging dismissal 12, 1999, the district court On October *3 claim. and order opinion memorandum issued its summary motion for granting Defendant’s Facts failed the basis that Plaintiff judgment on in working for Defendant began race prima a case of to establish facie at restaurant located August of 1985 Specifical- Title VII. discrimination under Randall, North Ohio. Plaintiff failed to court found that ly, the lo- transferred to Defendant’s restaurant discharge pur- for a constructive establish Highland Heights, Ohio because cated demonstrating an adverse em- poses of facili- closed the North Randall court rec- ployment action. The district throughout ty. The record indicates claim that the adverse ognized “[a] tenure at the North Randall lo- via accomplished action was cation, performance all one of her eval- but under discharge cognizable constructive “AT rating bears an overall of however, uations VII;” opined that Title the court is overall STANDARDS—Performance forward with suffi- Plaintiff failed to come equal to or better than the standard re- to establish that she suf- cient evidence quired,” or “ABOVE STANDARDS —Per- discharge a because she fered constructive noticeably formance is better than re- “working the condi- failed to show (J.A. 236-56.) quired.” at The evaluation unpleasant or that a tions were so difficult forms forms themselves are standardized person plaintiffs reasonable shoes which list various duties attendant compelled resign,” or that would feel job position, require respective employ- “Defendant intended to cause employee’s perfor- reviewer to rate the resign resignation or that [her] ee mance as to these duties as “Below Stan- reasonably consequence a foreseeable of (J.A. 28.) dards,” Standards,” “At or Stan- “Above at the Defendant’s action.” evaluation, At the end of the dards.” in a footnote that “[e]ven The court added employee’s per- overall reviewer rates pmna if Plaintiff could muster facie case, using rating formance the same scale. As the evi- she could not—based on indicated, only one of Plaintiffs eleven that Defen- dence the record —show joint appendix in the evaluations included changing dant’s reason for classifi- (Plaintiffs rating an overall of “BELOW bears work performance) cation STANDARDS,” although at times she was racial discrimina- pretext for intentional 9.) (J.A. regarding standards various rated below Regarding n. Plain- tion.” aspects job. of her remaining tiffs law claim for inten- state distress, tional infliction of emotional ratings, In addition to the standardized genuine that no issue district court found provide space also for the the evaluations material fact remained for trial reviewer to include handwritten comments. Defendant’s actions did not rise to the Plain- example, appears For on what to be outrageous level of extreme and behavior evaluation, February tiffs six-month dated purposes satisfying require- 24, 1986, reviewer, Manager Assistant claim. ments of this McGuire, “AT Timothy rated Plaintiff as J. overall, provided The district court entered its corre- STANDARDS” following handwritten comments: sponding judgment granting Defendant’s In Eileen’s first 6 months she has step help extra out co-workers when (C) efficient, in need cleaning you been reliable and & con- go a little (windows, more employee. pleasant throughly seats, cerned Her [sic] attitude etc.[) Eileen, ledges professional ]. and her manner do continue go to im- prove, thanks for all by management your good unnoticed nor guests. efforts. Eileen has shown flexability [sic] (J.A. 241-42.) her hours weekend. She has The next provided joint evaluation in the worked both 1st 2nd and on shift[s] appendix 1988; February is dated it is many helped occasions she has magmt. from the same assistant manager and [management] when we have been short rates Plaintiff “AT STANDARDS” *4 Recently staffed. Eileen had her hours overall, but does not any bear handwritten changed job. at her other thought She (J.A. 243-44.) comments. at The follow- might that she have Denny’s. to leave ing 26, evaluation May dated 1989 from Management worked around her new Lewis, Manager Assistant Michael A. also schedule to assure that Eileen could con- rates Plaintiff as “AT STANDARDS” # tinue to work for 1851. Her willing- overall, provides and a handwritten com- ness to be management flexible showed indicating ment in areas which Plaintiff that that a caring employee [sic] she is to improve needed as well as the comment: employee and to lose an type of relations; “You have good a[sic] customer attitude would have been a disservice. (J.A. 246.) keep up the good service.” at As shown above Eileen in is not weak 1, Plaintiffs next evaluation dated October service, areas. competent She is Hinde, from Manager Assistant Gina team aspects work and the other of the Plaintiff rates as “ABOVE STANDARDS” code, server. overall, provides and suggested areas of Eileen, I would like to take this time improvement in the comments section you to thank your for efforts and I notation, along with you’re “Overall suggest you continue to do the (J.A. 248.) doing great-Keep it up!” at things you past have done in the to Similarly, Plaintiffs evaluation dated Octo- grow continue to with both the unit and ber of from a different assistant Denny’s. manager, rates Plaintiff as “ABOVE (J.A. 239-40.) STANDARDS.” evaluation,
Plaintiffs next August dated Plaintiffs next two evaluations dated 20, 1986, 26, 1992, six months after the first evalua- 26, 1993, August January and tion, indicates that a different assistant performance each rate Plaintiffs overall manager rated perfor- Plaintiffs overall “AT STANDARDS.” Plaintiffs evaluation STANDARDS,” “AT pro- mance as and he in August yet of 1993 from a different vided the following handwritten comment: manager assistant rates Plaintiff “AT STANDARDS,” and
Eileen, is embellished with your performance overall is “at comments such as “Good Job!!” and “We All your standards”. work with training you need more !!” in the margins of the hires, your new with also x-tra efforts in evaluation, along following with the com- working assuring good guest over/ ment: appreciated. service is diffently You are a big help to our opera- you helping
[sic] [sic] units Eileen thank being team, tions. A your few areas to consider for member of our weekend it’s en- (A) sell, seggustive next review. couraging [sic] to know that we can depend (B) up you sell etc. may go you consistently want to an on weekends. One however, and the assistant both Plaintiff duties' on is sidework big area to focus Tay- Linda timely manager, point manner who at this in a more completed but we more available until March you lor, wish were sign did not evaluation circumstances. your 25, 1995, do understand that the evalua- despite fact the dedi- you] for all again [thank Once January date as does Cross’ tion bears the Have team work!! cated and effective signature. day!! a nice and the February In Plaintiff (J.A. 256.) also indi- This evaluation fa North Randall employees other of the receiving pay that Plaintiff was cates notified that Defendant cility were per hour to per from $2.71 increase $2.68 facility closing permanently. from evaluation Finally, hour. Plaintiffs employees given were and the other 1994), September (apparently one of transferring to another option “AT an STAN- indicates that she received in the district— Defendant’s restaurants rating. DARDS” Heights or the the restaurant Garfield to be appears until what It was not 1—if Highland Heights they restaurant at Defendant’s last evaluation news, response desired. *5 27, January facility, dated North Randall general her options with discussed a “BELOW STAN- that she received time, Taylor, well manager at the Linda as time on rating. the first DARDS” For manager Highland general as with the evaluations, joint in provided of her time, Halasz. Plain Heights at the John in the wrote a comment appendix, Plaintiff Halasz, who at one time tiff claims the evalu- section of “employee comments” had been the North manager Plaintiff wrote as fol- Specifically, ation. that he would be facility, Randall told her
lows: transfer to the honored to have Plaintiff very incorrect. I have evaluation is This facility. When Plaintiff Highland Heights things all the I am put next to N/A’s transfer Taylor asked whether should she on. Please review incorrectly marked Highland or Heights to Garfield in very I insulted this correctly!!! am Taylor ad Heights, Plaintiff claims got- This is the worst one I’ve review. Highland transfer to the vised her my hire Denny’s ten at since date Heights facility “it’s a faster envi because up I on this Mr. 1985. will follow to Plaintiff Taylor ronment.” reiterated Cross!! Highland that she should transfer (J.A. 260.) The “Mr. Cross” facility it was a faster Heights because in her Plaintiff makes reference which that Plaintiff environment and she felt on the evaluation as comment is identified stated that would do well there. Plaintiff unlike in “Manager.” Apparently, employees most of the from the North evaluations, it was previous Plaintiffs facility to remain em Randall who decided Cross, and not the assistant man- Manager transferred to the ployed with Defendant the evaluation on ager signed who later Heights facility they because did Garfield 25, 1995, actually conducted March who automobiles, and Garfield not have signature Cross’ evaluation because line, Highland but Heights was on the bus that of the evalua- bears the same date as tion, Heights was not. January Interestingly, Heights, Highland on Wilson Mills Road in deposition, Plaintiff refers to the 1. In her facility Highland Heights as “Wilson Mills" Ohio. located apparently because restaurant began working Highland complaint, management Plaintiff at the began 14, 1996, assigning work Heights facility rotating on March and stations fash- However, ion. time “very practice acknowledged happy” she was stopped. Plaintiff an also recalled incident there. “very begin working excited” to when, in March driving of 1996 after twen- al- Defendant claims that Plaintiff was ty-five minutes to work in unseasonable Highland Heights to transfer lowed weather, she realized upon arriving for though facility even was full-staffed. duty that had she left the necktie that was beginning Within two weeks of work as a part of her uniform at home. Plaintiff Highland Heights facility, at the server Mallon, explained went to hap- what had an received “above standards” pened, if and asked he had a tie that spare a five per pay evaluation and cents hour she could borrow for her shift. Mallon increase. informed Plaintiff that he did not have a Shortly after work at beginning spare tie and that she would have to re- however, Highland facility Plain- Heights turn if properly home she was not attired. began experiencing tiff contends that she Plaintiff remembered that she had an old disparaging comments from her co-work- car, tie in the trunk of her so she went here;” ‘grits’ ers don’t serve such “We outside, tie, got proceeded probably to that of the “You’re used ‘first later, her shift. About an hour ” rush,’ many implying month of the noticed that a one of the other servers— facility customers from the where Plaintiff happened appeared who to be from white— employed had been North Randall were the back office with a brand new tie. The assistance; public and “These must Plaintiff, server came up excitedly your people have been some of from told Plaintiff that *6 just gotten she had Randall,” in reference to some customers new tie from Mallon. Plaintiff did not pay who did not want to for their break- however, respond; she claims that her (J.A. 196.) fast. at The latter comment hurt, feelings particularly were when she by manager, Greg was made Plaintiffs day’s realized that she could have missed a addition, Mallon. In Plaintiff contends when, assertions, pay despite his Mallon provided the white servers were along. had an extra tie all more hours of than she was Shortly began experienc- after Plaintiff provided, and that the white servers con- ing disparaging these comments and inci- tinually told Plaintiff that their hours were dents, “Mys- what Defendant refers to as a going not to be cut because she was al- tery Shopper” Highland arrived at the Highland Heights. lowed to transfer to Heights facility during Plaintiffs shift and Moreover, to the best of Plaintiffs knowl- sat in Plaintiffs section for service. De- edge, no white servers transferred to the Mystery Shopper fendant claims that the Highland Heights facility from North an Program external tool utilized facility. Randall There was one other quality to monitor the of its Highland black server besides Plaintiff at Mystery Shopper Program business. The and Heights, part-time. she was developed performed by was the NPD to complained management, (“NDP”), Inc. Group, which involved send- Halasz, Greg Mallon and about al- John ing “shoppers” to Defendant’s various fa- ways being assigned to the back stations of present cilities who would themselves as the restaurant because if no hostess was (cid:127)guests, actually evaluating but were De- duty, Mystery Shopper on the servers with the front stations fendant’s The services. get response complete expe- more In based his would customers. to would form to opportunity be to offer her an NPD with would facility, provide at the rience results, pro- position, would a different temporarily NPD turn move into head- to Defendant’s information Assis- [sic] vide the as a Hostess of Service perhaps 145.) South Carolina. Spartanburg, (J.A. quarters justified his Poplin at tant.” follows: decision as Mystery Shopper’s results of the The (“the the visit concerning Report Report”) so, be able to doing Logan Ms. would By during Plaintiffs shift Heights Highland to the faster- acclimate herself both Defendant, indicated, according Highland Heights restaurant paced re- short of the Plaintiffs “service fell ways performance to raise her learn in several areas.” standards quires [sic] necessary reassignment The level. (J.A. 145). Report provided The was at impacted Logan’s have Ms. would not Manag- Defendant’s Area Poplin, Randall income, would have received as she er, section posted employee and was to account for the higher hourly rate facility and bore Highland Heights ability tips. of the to earn loss by manage- made handwritten comments my intention to allow Ms. Lo- It was ment. if position she gan to return to Server that because he had heard Poplin avers improved point to the where she could complaints received management had compromising quality do so without work, coincidentally ap- he about Highland at the guests service Highland Heights to observe peared restaurant. Heights time that the Plaintiff at about the same In his affida- Mystery Shopper appeared. (J.A. 146.) that he then Poplin claims vit, Poplin summarized his observations Rec- prepared Employee an Performance follows: (“EPR”) “in Ms. Lo- provide ord order to observations, it my personal Based on options written notice of the gan with April of 1996 that Ms. my opinion Poplin her.” being provided which were meeting legitimate Logan was he was unable to also claims because I had for her as a expectations which at the restaurant dur- meet with Plaintiff particular, Logan Ms. Server. *7 shift, her scheduled he delivered ing next job up her to the Com- performing at managers High- the EPR to one of the areas, standards in a number of pany to issue Heights, land “with instructions standards, de- including meeting service Logan reported EPR when the to Ms. she pre- within livering beverages food and it prepared The EPR stated that to work. times, assisting pre- others and scribed to being was issued due service-related bussing tables. Logan and that Ms. performance issues (J.A. 145.) at further avers that as Poplin moving into being given option was the alleged complaints the a result of or a either Hostess Service Assistant management had received about (J.A. 146.) position.” at performance, personal his observations Plaintiff, Mystery Shopper’s affidavit, as well as the Mary delaVega, In her Jane that “corrective” mea- Report, he decided Poplin assigned to whom the manager be taken as to Plaintiffs sures needed to Plaintiff, reviewing the EPR with task of employment as a server. meeting account her with provided an consider- “[bjecause delaVega’s Plaintiff. affidavit is Logan Ms.
Poplin claims that affidavit, Poplin’s than ably shorter long-time employee, decided [he] was part: in relevant step provides to take appropriate the most by Poplin delaVega proceeded EPR Mr. then to prepared 3. The ask Plaintiff Report if she had seen the Mys- to from the being that it was issued due stated board, tery Shopper on the to which Plain- performance issues and service-related it, tiff replied that of course she had seen Logan being given that Ms. (J.A. 119.) “you can’t miss it.” at At that moving into a Hostess or a option of Plaintiff, delaVega at point, looked shook position. Assistant Service said, just “I you her head and want Logan 4. Ms. arrived at work When Randy’s [Poplin’s] know this is all doings.” 28, 1996, privately I met April on (J.A. 119.) at delaVega then handed Plain- in the her in the office back of the document, tiff a one-page which Plaintiff present order to the EPR Restaurant referred to aas “confirmation confirmer” to her. (the it)2 which, Poplin EPR as refers to I the EPR to Ms. Lo- presented Plaintiff, according to a Mys- stated that gan gave opportunity her tery Shopper had come into the restaurant it. sign Logan displeased read it and Ms. read and was with the service that provided EPR then without it. Plaintiff because the signing shopper left served, long waited too to be was not (J.A. 147.) at if asked he would like a refill on his bever- Plaintiff a much ac- provides different age, and was not asked to return for an- happened April count of what 1996. other visit. Plaintiff that the claims docu- Plaintiff recounted in ment if Specifically, Report, her de- added because of the position day question, employ- that on the she wished continue her Defendant, ment with classification reported for work and checked the sched- assistant,” being changed to “service which ule to ascertain station of res- which is terminology Defendant’s for what assigned taurant she had been to work. commonly busboy.3 known as a noticed schedule read assigned that she had been to “station reading Plaintiff claims that after however, eight;” Plaintiff was confused document, following transpired: events assignment this because to the best of her said, “Mary I looked at her and I So knowledge, eight there was no station at Jean,” know, I “you said this is not even the restaurant. Because of this odd as- correct, true, lies,” I this isn’t these are signment, manager’s Plaintiff went to the happen,” said “this didn’t I said “no one time; delaVega duty was on comes into store and waits 20 min- office— door, Plaintiff knocked on the and she said hungry utes. As as these servers are Jean, ... me out delaVega, “Mary help tips, you get person can’t even (J.A. here, eight.” ... where is station seconds, yet walk in and wait for 30 *8 118.) Plaintiff, According delaVega just to alone 20 minutes for coffee.” And she shook her head and told Plaintiff to come say And I said anything. couldn’t “well,” into the office because she needed to talk say.” I “I what to said don’t know delaVega to Plaintiff. Plaintiff did as re- I to walk out and she So turned around “well, this,” quested you sign and closed the door behind her. said I need delaVega delaVega deposition deposition 3. in her testi- clarified in her testimo- confirmed confirmers,” ny mony that “conversation as that that Defendant uses the title “service Defendant, term is used is about the same commonly as "a assistant” for what is known EPR, thing except as an that the former is (J.A. 285.) busboy, girl.” bus coaching for while the latter is used for used 293-94.) (J.A. discipline. 566 enti it,” moving party “I al fact and that the sign I said can’t “sign said
I[sic]
this,
I
as a matter of law.”
judgment
even true.” So walked
tled to a
this isn’t
56(c).
out,
quar-
party moving
is about
As the
out and clocked
which
Fed.R.Civ.P.
eight,
judgment,
home.
Defendants bear
summary
ter after
went
for
showing the absence of a
the burden of
120.)
(J.A. at
material fact as to at least
genuine issue of
questioning
further
from defense
After
element of Plaintiffs claim.
one essential
counsel,
asked de-
Plaintiff added that she
Catrett,
317,
v.
477
Corp.
See Celotex
U.S.
options
if there were
other
laVega
(1986).
2548,
324,
Plaintiff did not return to work at part: vant Heights, employ- land and terminated her April
ment with Defendant after the It shall be an unlawful Having right incident. received a to sue practice employer— for an Equal Employment Oppor- letter from the (1) fail or refuse hire or to dis- (“EEOC”), tunity Commission individual, charge any or otherwise to present filed the lawsuit. against any discriminate individual with terms, respect compensation, to his con- DISCUSSION ditions, or privileges employment, be- grant summary judg- We review race, color, cause of such individual’s City ment de novo. DePiero v. Macedo- sex, religion, origin.... or national (6th Cir.1999). nia, *9 2000e-2(a)(l). § 42 A Summary judgment appropriate plaintiff may is where U.S.C. in- pleadings, depositions, “the answers to establish a claim of discrimination either file, evidence discrimi- terrogatories, by introducing and admissions on to- direct of nation, affidavits, any, by proving with the if or circumstantial evi- gether show genuine any support there is no issue as to materi- dence which would an inference of
567
1)
fact;
reason had no basis in
Valley
v. Tenn.
stated
Kline
discrimination. See
Cir.1997).
(6th
2)
Auth.,
337,
the stated reason was not the actual
F.3d
348
128
3)
reason;
and the circumstan
and
that the stated reason was
evidence
“The direct
exclusive;
mutually
explain
insufficient to
Defendant’s action.
paths are
tial evidence
Enters.,
McKinley
one or the
v.
only prove
need
See Wheeler
plaintiff
a
(6th Cir.1991).
1158,
other,
1162
“A reason can
not both.” Id.
proved
pretext
to be ‘a
for discrimi
not be
ap-
evidence
the circumstantial
Under
it
both that
nation’ unless
is shown
in the matter
approach used
proach—the
false,
reason was
and that discrimination
test of McDonnell
three-part
at hand —the
Mary’s
was the real reason.” St.
Honor
McDonnell
Douglas
employed.
See
Hicks,
502, 515,
v.
509 U.S.
113 S.Ct.
Ctr.
792,
Green, 411
93
Douglas Corp. v.
U.S.
(1993).
2742,
the court limited its nonmoving the during light made to Plaintiff the most favorable to comments various as Heights, such Highland her tenure at party.4 comment, the “first of the “grits” the defi Having pointed out these comment, your of and the “some month” ciencies and errors the court’s district comment, other acts as well as people” analyze opinion, we will now memorandum posting act of the such as Defendant’s proper light. case in the As of the res- Report employee in the section stated, the circumstantial evidentia under taurant, Plaintiff failed and concluded that first establish ry pathway, Plaintiff must of a con- requirements
to demonstrate the prima case of discrimination prove facie Then, despite the discharge. structive under Title VII. Johnson v. Univ. of completely ig- fact that the district court (6th Cincinnati, 561, 572 215 F.3d Cir. April evidence of the 28 incident nored 2000). the elements she must dem One of case, prima the relation to Plaintiffs facie element which the district onstrate —the in a that Defendant’s court found footnote and believed Plaintiff failed to establish taking disciplinary reason for proffered granting dispositive therefore found changing Plaintiffs classifica- action— summary that Plaintiff suf judgment —is pretext not a for race discrimi- tion—was fered an adverse action. Id. words, In nation. other the court was may employ establish an adverse claim of Plaintiffs aware of Defendant’s by demonstrating that she ment action performance April in relation to the poor constructively discharged. See Kocsis v. and allowed Defendant to use 28 incident (6th Mgmt., Multi-Care 97 F.3d legitimate this evidence as a nondiscrimi- Cir.1996). To demonstrate constructive actions, natory reason for its but the court discharge, must adduce evidence refused to consider the evidence as a basis 1) ... employer to show “the deliber discharge for Plaintiffs constructive claim. ately working intolerable condi create[d] analysis find the district court’s erro- We tions, perceived by per as a reasonable complete neous and in contravention to 2) son,” “with employer the did so the requirement deciding the that when a mo- forcing employee the intention the summary judgment, tion for evi- of 1999) (noting reviewing 4. We the criticizes the ma that the court must note that dissent engaging jority inappropriately in fact all drawn review of facts inferences finding, improperly requiring well as for light in the most favorable to the therefrom present light evidence in the Defendant to nonmoving party); bringing evidence ad However, most favorable to Plaintiff. a re Plaintiff, by erroneously disregard duced but majority opinion view the reveals that the of court, by ed the district to the fore cannot First, wrong dissent is on both accounts. accurately finding. fact be characterized as shown, will be because the district court com addition, implies majority way in no April pletely failed to consider evidence of the present that Defendant must the evidence in incident in relation to Plaintiff's construc Plaintiff; light most favorable to nor does claim, discharge properly tive we have majority failing admonish Defendant for brought adduced fore evidence Rather, majority properly to do so. takes regard, Plaintiff in this and demonstrated our with what we issue find to be Defendant’s why belief as to the evidence is sufficient to misrepresentation of the record. See Cun create an inference of discrimination in the Sears, Co., ningham v. & 854 F.2d Roebuck analysis, juror. minds of a This reasonable (6th Cir.1988). Examples what course, precisely type are re majority believes to be Defendant's mis quired to make under a de novo review at the representations of the record are set forth stage, City summary judgment see DePiero v. Macedonia, Cir. infra.
569
”
that Defendant’s dis
Plaintiff contends
Welding Sys.,
Moore KUKA
quit....
treatment,
Cir.1999).
(6th
slanderous statements
parate
“To
171 F.3d
by
managers,
her
coworkers and
made to
dis-
is a constructive
if there
determine
of Plaintiff from
and Defendant’s demotion
and the
intent
employer’s
charge, both
work
busboy
rendered Plaintiffs
server
ex-
feelings must be
objective
employee’s
purposes
for
of
environment
intolerable
Co.,
(citing Held v.
Oil
Id.
amined.”
Gulf
prong
the first
of
construc
satisfying
Cir.1982)).
427, 432
684 F.2d
inquiry.
begin by
We
fo
discharge
tive
has set forth
The Fifth Circuit
incident wherein
April
on the
cusing
should con
factors that a court
number of
job
changed Plaintiffs
classifi
Defendant
the first
satisfying
purposes
for
sider
appears
incident
cation because this
discharge inqui
of the constructive
prong
ultimately pre
have
the event which
been
ry:
resignation.
Plaintiffs
cipitated
would
person
a reasonable
Whether
prepared by Poplin
the EPR
contends that
resign depends
compelled
have feel
by delaVega only
her
made
and shown to
case, but we consid-
the facts of each
on
job
classi
changing
reference to
relevant, singly
following
factors
er
to service assistant.
fication
(2)
(1) demotion;
re-
inor
combination:
testimony that De
deposition
in her
swore
(3)
reduction
salary;
duction
option
fendant did not offer her
(4)
reassignment
responsibilities;
hostess;
delaVega
and that
becoming a
(5)
work;
reassign-
degrading
menial or
option
that the
before her—
told Plaintiff
younger supervi-
work under
ment to
choice.
busboy option'
—was
(6)
harassment,
hu-
sor;
or
badgering,
the EPR offered
contends that
Defendant
calculated to
by
employer
miliation
becoming a hostess
Plaintiff the choice of
resignation;
encourage
employee’s
however,
(busboy);
assistant
or a service
(7)
early
or con-
or
offers of
the EPR and
produced
retirement
Defendant has
terms less favor-
employment on
the EPR
argument
tinued
at oral
admitted
result,
former status.
employee’s
than the
As a
misplaced.
able
or
has been lost
by way
supports its contention
776, 782
Bunge Corp., 207 F.3d
Brown v.
delaVega
Poplin
from
of affidavit
omitted)
(alterations
(5th Cir.2000)
(quot
reference to the
each makes
wherein
Steamship
ing Barrow v. New Orleans
EPR.5
(5th Cir.1994)).
Ass’n,
10 F.3d
59(e)
of the
has embraced some
Procedure
This Court
Rule of Civil
Federal
reviewing
a motion
supporting
factors when
affidavits
above-mentioned
states that
discharge,
judgment
such as
“shall be made
summary
claim of constructive
for the
set forth such
provided
knowledge,
the transfer
shall
personal
whether
evidence,
level,
duties,
Koc-
grade
see
would be admissible
pay,
same
facts as
886;
affirmatively that the affi-
sis,
expressly
today,
and shall show
matters
testify
competent
ant is
approach
Fifth
adopt
Circuit’s
mandates
The rule also
stated therein.”
the various factors stated
shall consider
pa-
of all
copies
or certified
that “[s]worn
Plaintiffs claim.
reviewing
when
above
Poplin stated that
prepared Mr.
EPR
Specifically, Poplin
"[t]he
EPR
"[t]he
averred
per-
being
due to service-related
being
it was
issued
issued due
prepared
that it was
stated
Logan was be-
and that Ms.
formance issues
performance issues and that
to service-related
moving
option
into a Hostess
ing given the
given
option of
Logan
being
Ms.
(J.A.
146—
position.”
Service Assistant
Service Assis-
or
moving
either a Hostess or
into
47.)
delaVega averred that
position!;]”
tant
while
*12
er,
to in an
pers
parts
or
thereof referred
the evidence must be viewed
thereto or
affidavit shall be attached
light most
to the nonmoving par-
favorable
56(e).
served therewith.”
Fed.R.Civ.P.
ty, where all reasonable inferences inure to
court has ruled that documents sub-
“This
benefit).
party’s
that
support
summary
mitted in
of a motion for
that
Accepting
only
as we must
offer
judgment
satisfy
requirements
must
of
made to Plaintiff if she wished to remain
otherwise,
56(e);
they
Rule
must be disre-
employed by Defendant
that
was
of service
Holbrook,
697,
2
garded.” Moore
F.3d
assistant,
inquiry
becomes whether a
(6th Cir.1993) (citing
699
Dole v. Elliott
employee standing
reasonable
Plaintiffs
Tours, Inc.,
962,
Travel &
942 F.2d
968-69
compelled
resign
shoes would have felt
(6th Cir.1991); State Mut.
Assurance
Life
Kocsis,
given this ultimatum. See
97 F.3d
Park,
Deer
Co. Am. v.
Creek
612 F.2d
886; Brown,
failed Moreover, De- to them. and deliver food busboy, to of a description as the such changing it was fendant admitted moving her contention support De- job classification because of degrading. have been would position of Plaintiff alleged perception fendant’s However, notice that judicial we can take satisfactorily perform as being able to as Defendant assistant” busboy or “service server, busboy were the duties below it, joba classification *13 entitles of a server. server, this less than those particularly waiter or of a Although this Court of restaurant. type factor, reassigning Regarding the next itself does in demotion opined has work, we find that degrading to menial or discharge, see a constructive not constitute busboy from the working as although Co., Rubber Tire & v. Firestone Wilson menial work may not be considered outset (6th Cir.1991), the demo- 932 F.2d in some, standing person reasonable by with the coupled significant when tion is have found the may Plaintiffs shoes other factors. that bus- accepted Plaintiff menial. Had gone from would have boy position, she Plaintiff Next, whether consider serving meals— on customers salary by waiting in have taken a reduction would successfully performed had joba that she de- busboy position. transferring to the mopping floors. years for over ten testimony deposition in stated laVega —to at minimum started assistants that service factor, badger- next relevant As to the hourly wage ris- with the maximum wage harassment, by humiliation the em- or ing, $8.00; began or while servers ing to $7.00 encourage employ- calculated to ployer hour, reached a per $2.00 about that not we conclude resignation, ee’s $3.00, plus tips. hourly rate maximum humiliating, in itself job change was the hour, per paid more busboys were Because in- in which Plaintiff but manner jobs the same were delaVega believed humiliating change this formed of However, de- compensation. in terms to en- well, way in a calculated and done speculation is based on laVega’s averment example, For resign. courage Plaintiff any to marshal failed inasmuch reported Plaintiff day question, on money Plaintiff much as to how evidence course, she but when the usual for work in how day, or average tips an made as- for her station schedule on the looked for De- working money server much was as- that she she noticed signment, Because average. makes on the fendant Plaintiff found eight.” signed to “station tips ability to make lose the would of her knowl- to the best this odd because to conclude busboy, it is reasonable as a at the did not exist eight” edge, “station suffered a reduction would have that she discrepancy caused This restaurant. job classifica- to this by changing salary where manager’s office go the Plaintiff to tion. delaVega of the informed she was then find change. Defen- We job classification understand- a common sense Similarly, eight” as “station of the term a dant’s use lead of restaurant would ing type manag- Plaintiff to bring mechanism that Plain- person to believe reasonable term in that the very suspect office by er’s were reduced job responsibilities tiffs military known a well eight” is “section that of server job from changing her had person that an enlisted meaning testified, busboys term busboy. As mental insta- discharged because floors, been boots, clear and mop rubber wear F.Supp. Hyman, bility. See Cloth dishes, peo- after clean-up heavy lift (S.D.N.Y.1956) (reviewing 190-91 conditioning Defendant’s act of copyright infringement spoof claim for continued on her becoming a “Bucking noting for Section 8” while busboy created an intolerable work condi- “[t]he title refers to ‘Section 8’ which is the tion that a person such reasonable stand- case”). discharge basis for as a mental ing in Plaintiffs shoes would have felt Although may Moore, the use of this term compelled resign. be coincidental, an inference of intended hu- at 1080. miliation can be drawn where Defendant Although we believe that April could have used several other methods or incident was sufficient to meet the first fictitious section numbers as a means prong of the discharge inqui- constructive draw Plaintiff to the manager’s office be- ry, persuaded we are further in this re- Instead, fore her shift. Defendant en- gard inasmuch April as the 28 incident gaged in a form of suspect trickery which *14 came on the heels of Plaintiff experiencing place itself would Plaintiff in a humiliat- disparaging comments and alleged inci- ed state such that Plaintiff would be even dents of unfair treatment. See Jackson v. vulnerable,
more
likely
therefore
to
Quanex,
Cir.1999)
resign,
delaVega
when
delivered the news.
(noting that a claim for race discrimination
addition,
office,
In
once
Plaintiff must be viewed under the totality of the
totally
was
blind sided
delaVega
what
circumstances).
stated, shortly
As
after
say.
Plaintiff,
had to
According to
usually
transferring
Highland
to
Heights, Plaintiff
servers were “written-up”
poor
for
shop-
began
claims that she
experiencing com-
per reports, and she had never heard of
management
ments from
and co-workers
being
other server
demoted for
a
such
such as
here;”
“We don’t
‘grits’
serve
Furthermore,
report.
delaVega did not
“You’re probably used to that ‘first of the
explain
job
”
that
this
change
tempo-
was
rush,’
month
implying
many
of the
rary, nor
delaVega
was
receptive to Plain-
facility
customers from the
where Plaintiff
tiffs offer to get further training. Accept-
employed
was
in North Randall were on
ing
events,
Plaintiffs version of the
as we
assistance;
public
and “These must have
stage,
must at this
we conclude that a
your
Randall,”
been some of
people from
person standing
reasonable
in Plaintiffs
in reference to some customers who did
shoes would have felt embarrassed and
(J.A.
pay
not want to
for their breakfast.
prospect
humiliated
of having to bus
196.)
Although Plaintiff testified in her
for
tables
the servers with whom she once deposition
“your
that the
people” comment
particularly when all but one of
worked—
made
reference to customers who
the servers were Caucasian.
food,
refused
pay
to
for
practice
their
a
factor,
This leads to
final
relevant
that allegedly happened often at North
whether
Randall,
Defendant offered Plaintiff con-
evidence on the record indicates
tinued
on terms less favorable
that the clientele at North Randall was of
than
employee’s
former status. Again,
low economic means and
many may
it
completely
is
reasonable to conclude that
have
minority
been
group members.
dishes,
clearing
wiping
tables, Therefore,
booths and
we find that this comment car-
floors,
mopping
and cleaning up after cus-
ries an inference of invidious discrimina-
tomers for minimum wage is a less favor-
tion sufficient to
a question
create
of fact
able
than
being
server for an hourly
as to whether the comment
harassing
rate
tips.
Accordingly, when viewing and created an
atmosphere.
intolerable
combination,
Brown,
these factors in
we find that
See
For Plaintiff 1) claims that in her by text showing that the stated reason more than years ten employment 2) fact; with had no basis in the stated reason Defendant, although she 3) had seen other reason; was not the actual and that the servers up” “written Mys- unfavorable stated reason was insufficient explain tery Shopper Reports, she knew of no Wheeler, the defendant’s action. other servers who required were to be- F.2d at 1162. “A reason cannot proved be busboys come if they wished to continue to be ‘a pretext for discrimination’ it unless with employment. addition, their aside is shown false, both that the reason was from one other server who employed was and that discrimination was the real rea- facts, rea- a these Under Plaintiff. Ctr., at than U.S. Honor Mary’s St.
son.” Defen- conclude that could person sonable 515,113 2742. S.Ct. portray efforts to calculated took dant Defendant contends that its disci server, humil- and poor being Plaintiff plinary against action taken Plaintiff was she resigning because into Plaintiff iated necessary alleged complaints based on that actually very was who a black server was regarding it received from customers to her posed and threat at her good performance, Report, Plaintiffs Mary’s Honor See St. counterparts. white Poplin's observation of Plaintiff. Howev 515,113 Ctr., S.Ct. 509 U.S. er, EPR, like the Defendant has failed to regard in this persuaded further areWe produce any alleged of these customer in question. events of the timing by the complaints, or evidence that Plaintiff after ten undisputed it is Specifically, April was counseled about them before the De- years successful Plaintiff, hand, 28 incident. on the other work- server, began Plaintiff as a fendant has come forward with sufficient evidence Heights Highland at the a server ing proffered to establish that Defendant's 1996, that within on March facility discharge-her poor perfor reason for her an “above stan- received two weeks she inability mance due to to work at a faster- pay evaluation performance dards” paced facility-was pretext for race dis Yet, contends Defendant increase. example, crimination. For Plaintiff ad performance Plaintiffs April performance duced numerous favorable longer could no Defendant poor so appraisals facility, from the North Randall In an- capacity. in this Plaintiff employ testimony as well as unrefuted that her Defendant, words, according other manager encouraged at North Randall went three weeks two or just Highland to transfer to the “above functioning at being a server from Heights facility because it was a faster- who being a server capacity, standards” paced branch; testimony and unrefuted performing capable longer no manager Highland Heights, lack attributes job. Halasz, managed John who at one time environment faster-paced of success facility, North Randa'l told Plaintiff that How- restaurant. Heights Highland of the he would be honored to have her transfer illogi- contention ever, Defendant’s find Highland Heights. She also adduced with the keep up could not If Plaintiff cal. *17 the unrefuted claim that she received a the that to believe it is pace, reasonable performance pay favorable revi~w and in would Plaintiff period difficult most shortly arriving Highland crease after at High- at arrived she first when been have Heights. management It was not until accus- got after she that and Heights, land began making and the other servers dis performance her pace, faster tomed paraging comments and made their feel However, Defen- improved. have would ings go known that their hours were not opposite us believe would have dant ing to be cut as a result of Plaintiffs true. be employment, began that Defendant to al was that Plaintiff theory is Defendant’s lege keep up that Plaintiff could not with with up keep who could poor a server pace. addition, In Plaintiff was the it Heights, Highland pace Highland black server to transfer to Plaintiff make offered to benevolently Heights; only High one other server at Plaintiff terminating busboy opposed as Heights black; land was and the other employ- ten-year more than of her because servers received better hours and sections ment history. 250.) attempt an to convince Defendant conspicuously fails to court that no genuine issue of fact make mention of these favorable overall remained for trial toas Defendant’s theo- brief, scores and comments in its thereby ry, begins its brief on appeal misleading the Court as to Plaintiffs over- with a table continues on for about all rating as a server while employed by three pages, wherein Defendant took Defendant. individualized sections from each of Plain- Defendant continues to performance tiffs mischaracterize appraisals over ten- the record in an year period effort singled support its con- catego- out those ries which Plaintiff received a tention that “below keep could not up table, standards” score. This 'which sets with pace the faster at Highland Heights. the tone for Defendant’s of “statement Specifically, in its brief appeal, on Defen- facts,” strong has a impact on the reader dant states as follows: inasmuch as one perceives litany of “be- learning After that the North Randall low standards” given score page. unit would be closing, spoke example, For on page four of Defendant’s Halasz, with John the General Manager brief, the “below standards” score is listed at a Denny’s restaurant located on Wil- times; Defendant thirty-two over son Road in Highland Mills Heights, nearly course of pages, three the “below Ohio possibility about the of transferring standards” score is listed a total of seven- to that unit. Plaintiff spoke also ty-two Reviewing times. brief Defendant’s Linda Taylor, manager her at the North leads one to conclude Plaintiffs over- Randall unit all about performance possibility poor a server has been since began Highland she transfer Heights. with De- During fendant. conversation, Taylor Ms. warned Plaintiff that she would find the High- However, when reviewed we Plaintiffs Heights land unit to different be from performance appraisals record, in the the North Randall unit. Specifically, were left with a much different impression Taylor Ms. told Plaintiff that the High- skills. As illustrated in this opinion, land very Heights these unit performance same ap- a “faster environ- praisals that Defendant characterizes ment” things where were “more struc- being were, “below standards” in some tured” than what she used to. The instances, glowing. Only one of many reason for the differences between the performance appraisals provided in ap- two units was the fact Highland that the pendix indicates an overall score of “below Heights unit was of “higher much vol- standards.” The other performance ap- ume”, meaning many more custom- praisals indicate overall an score “at ers visited the Highland Heights unit standards,” standards” or “above sev- day each than visited the North Randall *18 eral of appraisals bear complimentary unit. This greater created demands on remarks as to Plaintiffs abilities such as Despite Servers. these warnings, Plaintiff “is not in any weak areas. is She Plaintiff decided to transfer to the High- competent service, in team work and other unit, land Heights where she started aspects (J.A. job code, of the server.” at working in March of 1996. 239-40.) These comments also include as, (citations statements such you’re “Overall Defendant’s Brief on doing Appeal at 6 (J.A. great Keep it up!” 239^10), to joint omitted; and and appendix record em- — job!! (J.A. you “Good We need added). more!!” phasis in Highland Heights way no to transfer to the citations we referenced When by suggests. what joint appendix provided represents Defendant and record Rather, contention that support undisputed— in of its the record —which is Defendant higher about the was “warned” Plaintiff in to Defendant’s sharp is contradistinction if upon her placed would be that demands find Defendant’s mis- contentions. We Heights, and Highland to she transferred record, which characterization despite transfer these made the that she simply and mis- purpose serves no useful guided single to a “warnings,” we were court, to be unconscionable. leads document, testimony. deposition misrepresenta- found that This Court has found that testimony, Upon reading by appellant’s the record made tions of Defendant’s conten- way supports init no faith, bad and will not be suggests counsel fact, reading of Plaintiffs plain tion. Sears, Cunningham v. tolerated. testimony states indicates undisputed Co., Roebuck & to transfer to Taylor advised Cir.1988). opposed to Garfield Heights as Highland by are also troubled the district We though the former Heights —even apparent complacency regarding court’s from North Randall away much further misrepresentations as well as Defendant’s Plain- farther commute for and meant a handling court’s overall the district facility faster-paced it was a tiff —because past history of discrimi Plaintiff would do case. Defendant’s Taylor and believed conduct, minority pa natory testimo- both to its deposition there. This same well alike, that Plain- ny by employees cited Defendant indicates is well known trons and Halasz, the advice of John sought tiff also Ex public forums. jurisprudence Heights manager Highland who was highly publicized involving cases amples of managed Plaintiff at and at one time discriminatory conduct include Defendant’s Randall, informed and that Halasz North alleging race 1994 class action suits two “honored” to that he would be § 2000a— discrimination under U.S.C. Highland transfer to have Plaintiff Flagstar Corp., v. C.A. No. 93-1503 Dyson Heights.7 District Court the United States from Flagstar Ridgeway Maryland, a review of the record cited
Basically, from the United Corp., Civ. No. 93-20202 support of its contentions Defendant for the Northern States District Court Plaintiffs abilities and decision regarding Indeed, premise supports De- majority ronment. claim that the “does 7. The dissent's However, theory when of the case. specific fendant’s dispute any of the information deposition testi- baffling. We we examined the unrefuted Denny’s refers” is which brief support of this mony which Defendant cites certainly dispute Denny’s statements in most contention, indicates not the record Taylor warned Plaintiff that that “Ms. its brief against or cautioned Highland Heights Plaintiff was "warned” unit to would find the she Highland Heights transferring because the North Randall unit” be different from environment, faster-paced but instead that “[djespite warnings, Plaintiff decid- these Highland encouraged to transfer to Heights Highland she unit[.]” ed transfer to the pace and Plain- Heights of its faster implication because express of these The clear and statements, up pace. Al- keep with this abilities to particularly when taken in context tiff’s above, required cast the though is not quoted with the other statements light favorable to Plain- in the most believing that Defen- evidence the court into to mislead tiff, it is not allowed at the same time trans- attempted to caution Plaintiff from dant *19 support theo- misrepresent the evidence to Heights ferring Highland because of the case, has believe Defendant ry of the we pace that Plaintiff would on the belief faster here. faster-paced envi- done handle the not be able to 578 Defendant CONCLUSION
District of California8 —which fifty-four more than million dol settled for in granting The district court erred De- lars to two consent decrees. See pursuant summary judgment fendant’s motion for 97-882, Inc., Savage Denny’s v. No. CIV. A. a prima where Plaintiff established (E.D.Pa. facie 169377, *2 Apr.4, WL VII, of discrimination under Title case 1997) Winston, Ad- (unpublished); Chris came forward with sufficient evidence to Down, Steps Spartan- vantica President alleged that reason for 2001, show Defendant’s Herald, 5, burg Jan. at Al. The in purpose pretextual. stated of these decrees is to its action was We therefore “ compa ‘all future customers of sure the district court’s order REVERSE Denny’s ny-owned and franchise-owned granting summary motion for Defendant’s equal are treatment Restaurants accorded REMAND trial. judgment the case for of race col- regardless and service and/or ” Inc., Denny’s, v. No. or.’ See McCoo BATCHELDER, Judge, Circuit COV.A.98-2458RDR, 156824, at 2000 WL dissenting. (D.Kan. Feb.11, 2000); *1 Savage, 1997 169377, addition, at *2. In WL majority opinion emphasizes, As the discriminatory has come under fire for its appeal of the dis- propriety concerns hiring practices Rugg well. Ron grant Denny’s trict court’s of defendant less, Review, 2000 Year in 34 Nation’s summary judgment plaintiff motion for on (Dec. 2000) (“The 18, Restaurant News 51 Logan’s Title VII claim of racial discrimi- chain, 1,765 Denny’s unit a division of Ad- upon nation based alleged constructive dis- Group, agreed vantica Restaurant to re charge. challenge Plaintiff does not managers train at company locations after claims, appeal dismissal of her other in- facing Department charges U.S. Justice cluding upon state-law claims based discriminatory hiring practices.”).9 same set of facts asserted as a basis for Although recognize that Defendant’s constructive-discharge her Title VII alle- past record of discrimination is not at issue gation. majority acknowledges The here, the fact remains Defendant is no the district court: suits, stranger to race discrimination [Ajccurately recognized that in order to through district court’s failure to see show that she suffered a constructive recognize Defendant’s tactics and many genuine discharge, Plaintiff had to come forward issues of material fact in is disturbing. this case with evidence to demonstrate Jr., Herald, 16, 2001, Maryland publicized 8. The case was much Portland Press Jan. page. front group and involved a of black Secret Service agents extremely poor who received service Labs., Inc., Mylan 9. See Ieradi v. 230 F.3d and mistreatment a server at Defendant's (3d Cir.2000) (taking judicial 598 n. Annapolis, group restaurant while notice of article in the New York Times re agents white who ordered the same food re- garding separate settlement reached in matter top-notch ceived When the service. black involved, appellee in which the while agents attempted complain, members of noting proper appellate that it was for an allegedly attempted staff Defendant's to hide judicial newspaper court to take notice of complaint. eventually The case settled for articles even when the articles were be forty-five million dollars. See C. Kalimah court) (citing fore the district Peters v. Del. Redd, Day King shifts, fight 2001: Battle but Auth., (3d River Port 1356-57 rights people 1994); endures More than 700 turn Pozsgai, Cir. F.2d United States (3d 1993)). King, out in Portland to honor Martin Luther Cir. *20 genuine of racial conclusion that issues of material conditions working [because trial, majority she labored the opinion under which fact remain for discrimination] per- a reasonable in judicial takes notice of “facts” not evi- were so difficult dence, would have standing failing in her shoes excoriates the defendant for son resign. compelled light felt to the evidence in the most present to plaintiff, favorable to the holds inadmissi- Majority Op. at 567. objected by ble evidence never to the action, Logan VII Eileen In this Title plaintiff either before the district court or into the that once she transferred claims court, findings before this and makes of Highland Heights, in Denny’s Restaurant majori- Perhaps unsettling, fact. most the against her and Denny’s discriminated ty opinion says that the district court to a hostile work environ- subjected her required to review the defendant’s motion African-American, she is ment because in summary judgment light Denny’s of treatment of Denny’s and that because of conduct, “past history discriminatory her, longer work there and she could no minority patrons employees both was, fact, constructively discharged. in alike, jurispru- is well known the [which] majority opinion holds that the The district dence and forums.” public granting Denny’s motion for court erred I Because believe summary judgment. grant The standard of of a review contrary to law majority opinion that the summary judgment requires that we view troubling significant in a number of light in the evidence most favorable I respects, respectfully must dissent. party; permit it does not non-moving appellate An court reviews de novo to exclude evidence or that us admissible summary granting court’s order district objection to which no was raised below. court, district judgment. Like the majority The holds the affidavits light in the most favor- must view the facts Mary delaVega, Randy Poplin and Jean non-moving party. Because able to the with the most Denny’s employees the two may grant summary the district court Logan’s claim of con- knowledge about if it is clear that on the judgment only are inadmissible in discharge, structive facts, the facts viewed in undisputed or on entireties, the Employment their because non-moving light most favorable to the (“EPR”) prepared Report Performance party judg- is entitled to party, moving Logan and referred to regard with ment, may weigh court not the district produced. not This those affidavits was evidence, credibility or make determina- Denny’s articulated report was central any findings ruling tions or make of fact removing non-discriminatory reason for summary judgment. And on a motion for as a waitress. Logan position from her may court not do so either. this reflect, Lo- nor does The record does claim, any objection that she raised judgnent gan undertaken The review of court, however, the trial ei- testimony before opinion, is some- majority EPR had not ground on the that the than the de novo review re- ther thing other ground. other pre- produced been or on quired by Supreme Court and the file a motion before coming to its Neither did she cedent of this circuit. subsequent proceed- previously is irrelevant at trial in Denny's may have settled or 1. Thai case, ing. the decision at issue proceeding In this have the loser in another been summary judgment stage charges involving rendered upon discrimination based discriminatory any prior con- entirely evidence of entirely parties and different no different locale, facts, by Denny’s. geographic duct and even a different *21 580 55(f) Company In accordance with asking to Rule areas. pursuant
trial court discovery before the court per- for Plaintiffs procedures, supervisors additional summary judg- for ruled on the motion periodic performance formed evaluations opinion cites as majority ment. The and problems to advise her of these these affidavits authority disregarding recommend corrective mea- appropriate (6th 697, Holbrook, 2 F.3d 699 Moore v. following sample sures. The is a the Cir.1993). although that But Moore held performance problems brought to Plain- admissible because the evidence was not through perfor- attention these tiffs the documents had not been supporting mance reviews. submitted, objection admissibility to its no added.) (emphasis court, the trial and had been raised before Similarly, majority reprimands the Den- the issue was therefore not reviewable. ny’s misrepresenting counsel for the rec- only support Id. Moore not does not the regard given ord with to the information to here, action it majority’s sponte sup- sua Highland the Logan transferring about to ports contrary view.2 location, Heights stating that the testimo- in question reviewing There is no that Denny’s in “in ny pointed way brief no grant summary judgment, must view supports” Denny’s Logan contention that light the evidence in the most favorable to was “warned” about the conditions at not, non-moving party. the The law does Highland Heights. Significantly, the ma- however, require moving party pres- the jority dispute any does not of the opinion in light ent its evidence most favorable specific Denny’s information to which brief non-moving party. majority The refers; rather, majority rests its criti- opinion points authority to no for its view entirely Denny’s cism on the fact that brief Denny’s that counsel for has acted “uncon- that says Logan was “warned” about these in scionabl[y]” by presenting its brief a list conditions, the majority when believes plaintiffs shortcomings they of the are that, fact, merely in was Logan “advised” performance reflected in her reviews. Logan about them. But whether majority And I surprising opin- find advised, warned or the record does reflect “[rjeviewing ion’s statement that Defen- Logan that was told that she would find dant’s brief leads one to conclude that working Highland conditions performance overall as a server Plaintiffs Heights different from those at Randall. poor began employ- has been since she This requirement Denny’s present ment with Defendant.” The table in that majority deliberately brief that the finds supporting evidence its motion for sum- misleading prefaced by these words: mary judgment light most favorable view, Logan, my has no performance consistently support Company in a
below
standards
number
the established law.3
Thurston
Motor
1315,
(6th
1986)),
majority’s
Broadcasting
citation to
The
807 F.2d
Cir.
Taft
States,
(6th
Company v. United
jury verdict—which was adverse returned its taking governed by judicial notice is 5. The plaintiff plaintiff or his coun- —did Evidence, the Federal Rules of Rule 201 of The trial sel advise the trial court of this fact. provides, pertinent part; plaintiff's motion for a new trial court denied (b) testimony judicially facts. A noticed fact juror’s on the false and the Kinds of based plaintiff's appellate plaintiff appealed. brief, In the subject to reasonable dis- must be one (1) counsel made no mention of his client’s generally pute either known in that it is juror’s knowledge during the trial that the jurisdiction the trial within the territorial false; testimony was did not include in the (2) ready capable court or of accurate and findings joint appendix the trial court's on the whose determination resort to sources matter; "[wjithin and stated several accuracy reasonably questioned, cannot be days after the conclusion of the second trial of (e) Opportunity party is to be heard. A action, juror was learned that a ... had it opportu- upon timely request to an entitled correctly completely and answer a failed to taking nity propriety of to be heard as to the question posed by during the Court the voir judicial of the matter notice and the tenor omitted). (emphasis This dire.” Id. at 916 prior In the absence of notifica- noticed. rendition a "serious court found counsel's tion, judicial request may after be made misrepresentation of the facts.” Id. That is notice has been taken. cry far from the conduct of counsel here. discrimination; en.”)- opinion also cites by removing whether Significantly, regard articles with to dis- a server and discusses news position Logan from Denny’s. against made Denny’s de- crimination claims offering position her another this discussion thus: opinion critical to the determination The concludes moted her is discharge. recognize that Defendant’s “Although of the claim of constructive record of discrimination is not issue past however, disturbing, more Even here, is no the fact remains reference to articles majority opinion’s suits, discrimination stranger to race purported and the from the news media *23 through the district court’s failure to see Denny’s restaurants to litigation history of recognize tactics and the Defendant’s defendants and upon increase the burden of material fact is many genuine issues that the change the standard of review to disturbing.” Majority Op. at But 578. reviewing use in the district court must discrimination-— n Denny’s past record of The stan- summary judgment.6 record on cannot be at issue here— which is not and summary is judgment dard of review for made a central issue in the ma- has been well-settled; the court view the evi- must criticism of the district jority opinion’s light in the most dence in the record favor- court. non-moving party to determine able genuine there is a issue of materi-
whether
There is no evidence whatever that the
remaining
fact
for trial. See McKenzie
al
any
knowledge
actual
of
district court had
Inc.,
Telecomm.,
v. BellSouth
Denny’s reputed iniquities beyond those
(6th Cir.2000) (“[Tjhere
508, 512
must exist
did,
if it
alleged in this lawsuit. Even
material
genuine
in the record
issue of
disturbing
reviewing
I
is that in
what
find
fact.”)
Lobby,
(citing
Liberty
Anderson v.
majority
the district court’s decision the
Inc.,
242, 247-50,
106 S.Ct.
U.S.
upon
hearsay
relies
outside-the-record
evi-
(1986)).
majority
licized cases Defendant’s dis- 56(c). This court ad- Fed.R.Civ.P. must criminatory conduct include.... Affidavits, here to same standard. Majority Op. at 577. course, personal must “be made on knowl- opinion edge,
The then cites several cases shall set forth such facts as would be evidence, Denny’s purportedly which entered into admissible in and shall show af- firmatively competent racial that the affiant consent decrees to settle claims of proceedings. question Denny’s history judgment, I has a relevant to these do not nor litigation. "purported” of racial-discrimination But I use the word to underscore venturing litigation impropriety majority's out- evidence of that was neither before summary the district court in the record on side the record in this case. testify instability the matters stated therein.” mental and thus was intended to 56(e). humiliate majority points Logan.9 The It even Fed.R.Civ.P. infers Den- had, actions, ny’s permit,7 let alone “created an authority no that would intol- erable work condition such that a the district court to take notice of reason- require, person standing able unrelated lawsuits and articles the news Plaintiffs shoes media, would have felt very probably compelled resign.” The presented —and majority opinion nothing leaves not admissible8—in evidence determin- finder of fact to do on the evidence before that court remand. ing whether presents genuine issue of material fact. Turning Logan’s substance of majority opinion has thus effected a The complaint, I agree majority opin- with the re- transmogrification of standard of Logan presented ion that sufficient evi- view, least for Title VII defendants dence as to the first and prongs second may racially which have been sued for I prima disagree facie case. with the discriminatory practices other times and majority opinion’s reasoning and conclu- under different circumstances. regard sions with to the third and fourth *24 majority opinion
The
makes numerous
prima
elements of Logan’s
facie case: that
findings
reaching
of fact in
its conclusion she
an
employment
suffered
adverse
action
in granting
that
the district court erred
and that she was treated less favorably
finds,
Denny’s.
summary judgment to
It
similarly
than a
situated individual outside
example,
job change
that the
to
for
offered
her protected class. See Kocsis v. Multi-
demotion;
Logan
Logan
(6th
that
would
Inc.,
was
Mgmt.,
876,
Care
97 F.3d
882
Cir.1996).
salary
with,
have suffered a reduction
the
begin
To
this circuit has
position;
new and lesser
the
precedent governing
well-established
the
humiliating;
Denny’s
and that
change was
plain-
determination of whether a Title VII
designation
Logan’s assigned
station on tiff has
the
prong
satisfied
third
when the
in-
April
eight”
likely
plaintiff
28 as “station
claims
discharge
constructive
military
employment
tended to refer to the
term for
the
In
adverse
action.
Wil-
majority's
Mylan
volving
7. The
citation to Ieradi v.
the inference that because ARCO
Labs.,
594,
Inc.,
(3d
likely
230 F.3d
598
2
Cir.
the first act it
n.
committed
was more
to
second,
2000) and the cases cited
does
have
the
... we
therein
not
committed
cannot
support
majority’s
newspaper
agree
arti
the
use
with the district court's conclusion that
bring Denny's
cles to
racial-discrimination lit
the evidence was admissible under Rule
404(b)
igation history to the fore in this case.
In
to establish ARCO's intent to discrimi-
cases,
Becker.”).
against
evi-
each of those
the articles or books of
nate
And even if this
appellate
judicial
which the
court took
notice
dence were found to be admissible under
intent,
404(b)
specific
allega
Hogan
were material
factual
Rule
as relevant
see
v.
Tel.,
(8th
legal
tions and
issues raised in the case in
American Tel. &
The opinion’s Logan presented characterization that sufficient evidence of the tie” racially “new incident as moti- to genuine create a issue of fact with re- 10. Such a quite people contention would come country mention the in the rest of the shock, think, people I would of all races grits. who have learned the virtue of South, grown up who have in the not to a service taking position tioned on majority opin- The this element. gard to at- assistant, that she does she claim prece- court’s nor that this says correctly ion through obtain this information tempted focus on whether to that we requires dent opportunity all was similarly discovery situated but denied is plaintiff to employees those claims that other Finally, Logan to aspects to do relevant so. her situation. from compares transferees whom she African-American Tire & Rubber Goodyear Ercegovich long Highland at Park did not last Randall Cir.1998). The Co., the iden- provides neither but she Heights, that Lo- that the fact holds majority then information any nor persons such tities of Heights Highland into gan transferred departure at or their about the other servers where restaurant short, that In I believe Denny’s. from established is already schedules were their from present evidence Logan failed Logan’s employ- aspect of not a relevant that she was could conclude jury which a view, this my In disagree. I ment status. non-minority favorably than less treated comparison, relevant the most probably Highland Heights store. servers Logan’s claim regard to particularly failed to Logan I think that Because better given have been she should that to make out evidence present sufficient locations the restau- hours and better case, the dis- I would affirm prima facie testimony deposition Logan’s own rant. summary judgment grant trict court’s were about that the servers vocal indicates However, also hold Denny’s. I would sched- they did not want their the fact that wholly present evi- Logan failed that of a new changed server. ules because jury could conclude which dence from event, only one Logan named Cauca- non-discriminato- Denny’s articulated claimed, given was who she sian server pretextual. was reason for its actions ry in the better locations more hours and Denny’s implies that majority opinion The However, Logan than she was. restaurant presenting such even succeed in did not Redmond, an African- Joy admitted produce it did not reasons because who had been American server or evidence complaints customer specific location for some 18 Highland Heights them. about Logan counseled better hours and given was also years, course, required Denny’s, But The Logan. than more lucrative locations support produce some evidence this admission discounts majority opinion non-discriminatory reason. articulated a full- Redmond was not on the basis that Prods., Plumbing v. Sanderson See Reeves server, the record reflects time but *27 142, 2097, Inc., 133, 120 S.Ct. U.S. Redmond a full- first as identifying after (2000). 2106, Denny’s L.Ed.2d 105 server, that she did Logan later said time majority’s conclu- did so. And the clearly full-time Redmond was not know whether earlier mistaken facilitated sion is in the There is no evidence or part-time. Denny’s pro- did that the evidence holding part-time. Lo- that Redmond record Logan’s con- disregarded. be duce would receiving Mys- server gan claims no non-minority servers clusory opinions tery Shopper similar hers report than she are not treatment better received having report posted. subjected ever and the record prove pretext, server, however, sufficient identifies no other She support for contain simply factual does Logan a report. such who ever received that “a reason- conclusion majority’s who received no server identifies other that Defendant person could conclude able who was not told similar to hers report portray calculated efforts condi- took employment was that her continued server, being poor and humiliated Plaintiff into MINNESOTA MINING resigning because she was a & MANUFAC- COMPANY, actually good black server who was TURING Plaintiff- very Appellee, Cross-Appellant, posed a threat to her white counterparts.” PRIBYL, Ronald Harvey, James Thom- sum, Logan some presented evidence Skrtic, Plastics, and Accu-Tech In- people Denny’s, that the including some corporated, Defendants-Appellants, in management, treated her poorly or in- Cross-Appellees. sensitively. See Miles v. General Motors 85-3856, 27498, Corp., No. 1988 WL at *3 00-2972, Nos. 00-3021. 1988) (“The Mar.31, Cir. court ap- United States Court of Appeals, peared general feeling to rest on a Seventh Circuit. shabbily, Miles had been treated rather than on any justify evidence that would Argued May 2001. n conclusionthat management’s stated rea- July Decided 2001. sons were non-existent or pretextual”). Rehearing Aug. Denied required But she was present evidence that she was constructively discharged be-
cause her race. carry She did not
burden. if majority
Even were correct that
Logan carried her burden in resisting
Denny’s summary motion for judgment,
that would not warrant majority’s
harsh criticism of the district judge court most,
and defendant’s At counsel. the dis-
trict court’s judgment might constitute le- error,
gal Denny’s nothing counsel did
more than aggressively represent Denny’s, precisely
which is professional what ethics
mandate that Denny’s counsel do in our system.
adversarial reasons,
For all of these I dissent. *28 is, course, 11. This latter observation a de- termination of the ultimate fact at issue here.