United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT (DKT. 16)
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
Valerie Bradley brings this cause of action alleging that her
former employer, Defendant XDM, Inc., discriminated against
her based on her color, race and age, and also retaliated
against her in contravention of the Michigan Elliot Larsen
Civil Rights Act (ELCRA), M.C.L. § 37.2101, and Title
VII of the Civil Rights Act of 1964 (Title VII). 42 U.S.C.
§ 2000e-2. (Dkt. I).
the Court is Defendant XDM Inc.'s (XDM) motion for
summary judgment on Plaintiffs remaining claims against it
for color, race, and age discrimination under the Michigan
ELCRA, and unlawful retaliation under Title VII. On January
18, 2016, the Court heard oral argument on Defendant's
motion in Flint, Michigan.
reasons set forth below, Defendants' motion for summary
judgment is GRANTED as to both of Plaintiffs claims against
Valerie Bradley is an African-American female. At the time
that XDM allegedly discriminated and unlawfully retaliated
against her, she was approximately fifty years of
Plaintiff began working for XDM on or about October 15, 2012.
The company operated a call center that served the
telemarketing and support needs of its customers, such as
Frito-Lay and PepsiCo. XDM assigned Plaintiff to its
"Snacks 2 You program, " which provided customer
support services to agents of retail stores that purchased
its customers' products and who could call XDM in regard
to matters such as shipping and product information.
Plaintiff was hired to work as a customer service
representative; her job responsibilities included taking
customer orders and responding to customer complaints over
August 8, 2013, Plaintiff filed a Charge of Discrimination
against XDM with the EEOC. (Dkt. 16, Ex. 13). On December 27,
2013, XDM terminated Plaintiff. (Id., Ex. 24). The
remaining claims in Plaintiffs complaint are that: (1) during
the approximately fourteen months Plaintiff worked at XDM,
she was denied opportunities for promotion or other
incentives on the basis of her race, and (2) XDM supervisors
severely or pervasively harassed her, or decided to terminate
her, because she filed a discrimination charge. Plaintiff
argues that because of her race, she was not told about
certain opportunities for promotion and was denied favorable
changes to her shift time and a request to train on an
additional software program. She further claims that as a
result of her decision to file an EEOC Charge, she was
harassed and terminated. XDM responds by asserting that
Plaintiff was never denied opportunities for promotion,
harassed, or prevented from obtaining favorable changes to
her shift time or software training opportunities on the
basis or her race or because of her EEOC complaint. Instead,
XDM contends that Plaintiff was terminated because of her
record of unprofessionalism and inability to improve her
performance after receiving coaching.
Initial Work Performance Issues
evidentiary record indicates that Plaintiff was formally
assessed negative feedback from her supervisors, customers,
and colleagues, on the following occasions during the time
period of February, 2013 through May, 2013:
• On February 21, 2013, Plaintiffs supervisor completed
a written performance review for the first ninety days of
Plaintiffs employment with XDM: the review noted Plaintiff had an
upbeat and patient attitude on the phone, and that she has an
outgoing personality and tries to reach out to her
colleagues, but that she also struggles with arriving on time
and can be abrupt. (Dkt. 16, Ex. 2). In the competency
categories of "quality, customer focus, [and] team work,
" Ms. Boling rated Plaintiff as "meets
requirements, " and in the competency category of
"attendance/punctuality" as "occasionally
meets requirements." (Id.).
• On February 22, 2013 XDM issued Plaintiff a
"mistreat/mishandle" form for taking an
"argumentative/rude" tone with a customer, which is
in contravention of XDM's Quality Assurance Manual.
(Id., Ex. 7 at Pg ID 331; Ex. 4 at Pg ID 203). In
response to this, Plaintiff testified that she received
one-on-one coaching from a supervisor on how to be patient
during phone calls. (Id., Ex. 2 at Pg ID 120).
• On February 25, 2013, two XDM employees logged formal
complaints in the company's computer system stating that
Plaintiff had been "kind of snotty" and
"offensive" to them respectively. (Id.,
Ex. 8 at Pg ID 333).
• On April 23, 2013, Plaintiff received a
"corrective action form" stating that it was the
"final notice" that XDM would be providing her
regarding her late arrivals to work. (Id., Ex. 9 at
Pg ID 339-40). XDM has an attendance policy whereby employees
are assigned points whenever they are late to work, and the
later they arrive, the more points they are assigned.
(Id., Ex. 5 at Pg ID 318). According to the policy,
when an employee accrues six points they will receive a
written warning, and when an employee receives twelve points,
they will be reviewed for termination. (Id.) The
April 23, 2013 corrective action form stated that Plaintiff
had accrued eleven and one quarter points, though Plaintiff
testified that this amount was incorrect, and that her point
total on account of lateness was eight and a half.
(Id. Ex. 9 at Pg ID 339-40; Ex.2 atPgID 121-22).
• On April 24, 2013, a supervisor advised Plaintiff
against elevating her voice with customers and reprimanded
her for "smacking [his] desk to grab [his]
attention." (Id., Ex. 8 at Pg ID 334).
• On May 22, 2013, a colleague logged a formal complaint
stating that Plaintiff "got snappy" with her.
• On May 29, 2013 Plaintiff received a corrective action
form-i.e. a written warning-after, in reference to a
customer whom Plaintiff mistakenly thought was on mute, she
stated to her supervisor "this crazy lady wants to talk
to you, " such that the customer heard this comment.
(Id., Ex. 10 at Pg ID 342). The audio recording of
this call is entered in the evidentiary record. (Id.,
Ex. 11 at 4:38).
Preceding Plaintiffs EEOC Charge
testified that she verbally requested a change in shift time
from the night shift to the day shift from Ms. Boling in
"May or June , " but that Ms. Boling denied
her request, stating to her, "get in line, there are
people with three and a half years seniority." (Dkt. 18,
Ex. A at Pg IDs 469-70, 480). When XDM's lawyer asked
Plaintiff at her deposition if it was her opinion that Boling
denied her request based upon "her race and age, "
Plaintiff testified, "[t]hat played a part, yes."
(Id. at Pg ID 478). Plaintiff further stated that
"in [her] department, " switching from the night
shift to the day shift was "considered a
promotion." (Id. at Pg ID 480). As Defendant
points out, XDM policy requires employees to submit a
Schedule Change Form to change shift times. (Dkt. 16, Ex. 5
at App. A, 16). On July 5, 2013, Plaintiff completed a
Schedule Change form, and it was signed by a supervisor,
indicating that her shift would be permanently changed from
11:30 am - 8:00 pm to 10:30 am - 7:00 pm, effective July 15,
2013. (Dkt. 16, Ex. 25). Plaintiff testifies, however, that
this shift change was not permanent, as it was "only for
a specific date." (Dkt. 18, Ex. A at Pg ID 476).
Moreover, Plaintiff testifies, two of her Caucasian
colleagues, whom she identifies as "Keegan" and
"Scott" were "promoted"-i.e.
given permanent day shifts-even though they were hired after
her. (Id. at Pg ID 479-80). Plaintiffs testimony
conflicts, however, on whether Keegan and Scott were awarded
shift changes when Ms. Boling-the alleged discriminatory
supervisor-was at the company. It is undisputed that Ms.
Boling left XDM on August 15, 2013. (Id. at Pg ID
550). At her deposition Plaintiff first testified that Keegan
and Scott received "promotions" to the day shift in
September, 2013; just a few moments later, however, she
testified that Keegan and Scott changed shifts "by May,
June ." (Id. at Pg ID 479). At some point
between mid-August, 2013 and mid-September, 2013, after Ms.
Boling left XDM on August 15, 2013, Plaintiff testified that
her shift was changed permanently to 8:30 am to 4:30 pm.
(Id. at Pg ID 482).
addition to her allegations that shift change decisions were
made on the basis of race, Plaintiff testified that Ms.
Boling "had [the employees] sitting segregated" and
did not "post" any opportunities for promotions or
incentives. (Dkt. 18, Ex. A at Pg ID 551). "You never
knew what was available, " Plaintiff testified,
"until [Ms. Boling] brought [an opportunity for
incentive or promotion] to whoever she wanted to."
(Id. at 552). Plaintiff added that she felt like Ms.
Boling "favored Caucasians in this regard."
(Id.; Id. at Pg ID 539-40). Plaintiff testified
further that Ms. Boling denied her request to be trained on a
software program that would have allowed her to work as a
customer service representative for Pepsi Co. (at that time,
she was trained only to work for Frito-Lay) (Id. at
579-80, 582-83). Plaintiff states that she saw Ms. Boling
training two white colleagues-"Steven [who Plaintiff
stated she mistakenly referred to as "Scott"
earlier in her deposition] and Keegan"- and walked up to
Ms. Boling to request that she be allowed to join the
training session, but Ms. Boling said no. (Id.)
Plaintiff acknowledged that she was trained on Pepsi Co.
"a couple months later, " when XDM offered training
for this product to their entire staff (Id. at
Plaintiff also testified to the facts that she applied and
was turned down for two different promotions within the
company on June 12 and June 17, 2013, (Dkt. 16, Ex. 12), as
well as a position as a human resource assistant in or about
July 31, which she does not characterize as a promotion,
(Dkt. 18, Ex. A at Pg ID 468), Plaintiff maintained that she
does not attribute any of these hiring decisions to
discriminatory animus. (Id. at Pg IDs 467-69).
Moreover, with respect to the first two positions, Plaintiff
admits that she was ineligible for these promotions, because
she received a written warning on May 29, 2013 and, according
to XDM ...