As for the plaintiff's claim that she had produced direct evidence of discrimination, the Court found that neither statement constituted direct evidence. The Court defined "direct evidence" of discrimination as follows:
Direct evidence explains itself. As this Circuit has noted, such evidence does not require the fact finder to draw any inferences to reach the conclusion that unlawful discrimination was at least a motivating factor. See Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004) ("Direct evidence is evidence that proves the existence of a fact without requiring any inferences.").The plaintiff claimed her "direct evidence" consisted of two statements. In the first, a manager responded affirmatively – over an objection by the employer's counsel to the ambiguous form of the question -- when asked "So you mean, you would agree [based on] the information you have, race was an issue in the discharge." After the deposition, the witness "clarified" her answer with an affidavit, stating: "To the extent that Plaintiff's counsel interprets my statements as indicating that Plaintiff was discharged because of her race, this is an inaccurate interpretation of my testimony. Instead, I believe that racially charged comments by Plaintiff may have led to her discharge." In light of the "poorly phrased question" and the witness's clarifying affidavit, the Court concluded that her affirmative answer "cannot reasonably be construed to mean that [the plaintiff's] race was the reason for her termination." On the contrary, the ambiguous nature of the question "requires the kind of inferential speculation as to the proper subject of the phrase 'race was an issue in the discharge' that fails to come within the ambit of direct evidence."
In the second statement, the plaintiff recounted a conversation she had with the company investigators during the investigation. The plaintiff claimed that after she inquired whether she was to be discharged, they responded that they would "go to bat for you, but you have to remember that this is Flint and you know the history of this store." The plaintiff explained that this statement referred to an earlier incident when a white manager had been fired after complaints from African-American customers. However, the plaintiff's affidavit did not reveal that the investigators were asked to clarify or explain their reference to "the history" of the Flint store or that they did so. Like the earlier testimony, the Court rejected this as "direct evidence" because it required the listener to infer its meaning.
The Court also rejected the plaintiff's argument that she had identified similarly-situated employees who received better treatment. Although the plaintiff claimed that a black assistant manager had also discussed the "ghetto card," the internal investigation found that claim to be unsubstantiated because the assistant manager denied it and there were no other witnesses. Moreover, the plaintiff's "conduct was admittedly more pervasive and severe than merely uttering the term "ghetto card." While other employees had used the term and were subjected to "policy reviews," they were not managers.
In establishing that two people are similarly-situated, a "plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment." . . . Instead, "the plaintiff [must] demonstrate that he or she is similarly situated to the [claimed comparator] in all relevant respects." . . . In the disciplinary context, the Sixth Circuit has held that to be found similarly situated, "the plaintiff and [her] proposed comparator must have engaged in acts of 'comparable seriousness.'" . . . To make this assessment, a court must look "to certain factors, such as whether the individuals '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.'" (citations omitted).The Court found "the degree of misconduct is sufficiently dissimilar to remove [the assistant manager] from consideration as a bona fide comparator for purposes of establishing the prima facie case." In addition, the plaintiff's role as a manager "could reasonably justify holding her to a more stringent standard of conduct than that applied" to an assistant manager.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
