Gaulden v. Philips North America LLC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

ADRIANA GAULDEN, )

)

Plaintiff, )

)

v. ) Case No. 3:20-cv-01002

) Judge Aleta A. Trauger

PHILIPS NORTH AMERICA LLC, )

)

Defendant. )

MEMORANDUM

Plaintiff Adriana Gaulden filed suit against Philips North America LLC (“Philips”) in

November 2020, asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e et seq., for racial harassment—more specifically, for creating a racially hostile work

environment—and retaliation for complaining about perceived racial harassment. The defendant

has now filed its Motion for Summary Judgment (Doc. No. 22) along with a supporting

Memorandum of Law, Statement of Undisputed Material Facts, and numerous exhibits (Doc. Nos.

23–25). It seeks judgment in its favor on both claims. The plaintiff filed a Response, Response to

the Statement of Undisputed Material Facts, her own Statement of Additional Facts, and additional

exhibits. (Doc. Nos. 27–29.) The defendant filed a Reply, as well as a Response to the plaintiff’s

Statement of Additional Facts. (Doc. Nos. 30, 31.)

For the reasons set forth herein, the court will grant the defendant’s motion and dismiss

this case.

I. STANDARD OF REVIEW

Summary judgment is appropriate where there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “By its very terms,

this standard provides that the mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the requirement is

that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247–48 (1986). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary

under applicable law is of no value in defeating a motion for summary judgment. On the other

hand, “summary judgment will not lie if the dispute about a material fact is ‘genuine.’” Id.

A fact is “material” within the meaning of Rule 56(a) “if its proof or disproof might affect

the outcome of the suit under the governing substantive law.” Reeves v. Swift Trans. Co., 446 F.3d

637, 640 (6th Cir. 2006). A genuine dispute of material fact exists if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. Harris v. Klare, 902 F.3d 630,

634–35 (6th Cir. 2018).

The party bringing the summary judgment motion has the initial burden of identifying

portions of the record—including, inter alia, depositions, documents, affidavits, or declarations—

that it believes demonstrate the absence of a genuine dispute over material facts. Pittman v.

Experian Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir. 2018); Fed. R. Civ. P. 56(c)(1)(A). The

non-moving party must set forth specific facts showing that there is a genuine issue for trial.

Pittman, 901 F.3d at 628.

The court should view the facts and draw all reasonable inferences in favor of the non-

moving party. Id. Credibility judgments and weighing of evidence are improper. Hostettler v. Coll.

of Wooster, 895 F.3d 844, 852 (6th Cir. 2018). As noted above, where there is a genuine dispute

as to any material fact, summary judgment is not appropriate. Id. The court determines whether

sufficient evidence has been presented to make the issue of fact a proper jury question. Id. The

mere existence of a scintilla of evidence in support of the nonmoving party’s position will be

insufficient to survive summary judgment; rather, there must be evidence upon which the jury

could reasonably find for the nonmoving party. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.

2003).

II. FACTUAL AND PROCEDURAL BACKGROUND

The facts set forth herein for which no citation is provided are derived from the plaintiff’s

Response to Defendant’s Statement of Undisputed Material Facts (Doc. No. 28) or the defendant’s

Response to Plaintiff’s Statement of Additional Facts (Doc. No. 31). Unless otherwise indicated,

the facts recited herein are undisputed for purposes of the Motion for Summary Judgment.

A. Plaintiff Begins Her Employment at Philips

Plaintiff Adriana Gaulden, who is African American, was hired by Philips in October 2018.

Her supervisor was Shannon Stithem. Stithem is White. Initially, Gaulden got along well with

Stithem. Toward the end of the plaintiff’s employment, however, their relationship was strained.

Gaulden was initially hired in a Service Order Solutions Audit/Billing Order Closure

position, but, after her first week, she was moved to a new position as part of the “triage team,”

and her job title was “CSR Triage Processor.” As Gaulden described it, the triage team looks at a

list of orders and ensures that those orders have necessary documentation for billing. Gaulden’s

job was to communicate what additional information, if any, was needed before the orders could

be moved to billing. Initially, the only other CSR Triage Processor and member of the triage team

at Philips’ Nashville office was Ellen Drake. (See Doc. No. 25-1, Gaulden Dep. 20.1) The plaintiff

and Drake were being trained in the position by Shannon Kettells. (Id.) At a later point, Jennifer

1 The copy of Gaulden’s deposition transcript filed in support of the defendant’s Motion

for Summary Judgment is in condensed form, with four transcript pages per document page. The

court will cite to the original transcript’s pagination.

Moss became their trainer, and others, including Loren Givens, were added to the team. (See

Gaulden Dep. 83–84.) Drake is White; Givens is Black.

The Philips office in which the plaintiff worked had an open floor plan in which

approximately fifteen individuals worked, such that Gaulden’s co-workers were seated in close

proximity to her work station. Of the fifteen, approximately six or seven were African American.

Most of her co-workers were on the billing team.

Philips has promulgated policies and procedures that prohibit discrimination and

harassment and set forth various ways in which to report harassment. These policies define

harassment, give examples of harassment, and instruct employees on how to report harassment in

the workplace, so that Philips can investigate any reported discrimination and harassment and take

remedial measures, if needed. While Gaulden does not recall whether she had training on Philips’

policies pertaining to harassment and discrimination, she was aware that Philips had a Human

Resources Department that could address employee concerns in the workplace. During her tenure

at Philips, Gaulden had a number of interactions with the Director of Human Resources, Matt

Holland.

B. Plaintiff’s Conflict with Drake

The record establishes that Gaulden’s teammate, Ellen Drake, had difficulty getting along

with just about everybody. Gaulden testified that, from the beginning, she found Drake to be “testy

a lot of times” and that she “came across [as] upset or easily upset by things.” (Gaulden Dep. 31.)

Drake “projected that onto other people,” not only the plaintiff but “other teammates and trainers

as well.” (Id.) Drake had outbursts with “multiple” coworkers, male and female, White and Black,

“where she would be inappropriate in the workplace.” (Id. at 32–34.) Gaulden recalls talking with

her coworkers about these outbursts. (Id. at 32–33; see id. at 33 (“Ellen was actually discussed on

multiple occasions in the workplace because she would have outbursts often.”).) Drake, however,

was not always “mean to everyone,” and the plaintiff had “pleasant experiences” with her, up until

the time that Drake had an “outburst” with Gaulden. (Id. at 33.)

On February 13, 2019, Gaulden and Drake had a verbal altercation at work (the “February

13 Incident”). According to Gaulden, she was sitting at her desk working when Drake “charged”

toward her, threatening her, yelling, and cursing. (Id. at 55.) When Drake reached Gaulden’s desk,

she leaned onto her desk and “began shouting” at Gaulden about her frustration over some work

they had both touched. (Id. at 56.) Gaulden stayed calm and asked Drake to back away. When

Drake did not back off, Gaulden herself tried to back away from Drake, but Drake continued

toward her, still yelling and cursing, “in a fighting stance” with “her fists balled.” (Id.) Another

employee, Pamela Hopson, stepped between them and persuaded Drake to return to her desk.

Gaulden, although shaken and upset, remained at her desk and continued working. Drake

continued yelling at her from across the room, but Gaulden did not respond or engage with her.

Gaulden admits that Drake did not use any racial slurs or make any racially derogatory comments

during this altercation. (Gaulden Dep. 60.)

Later the same day, Stithem sent an email to both Gaulden and Drake, the subject line of

which was “Professionalism in the workplace.” (Doc. No. 25-7, at 2.) The email stated that, per

Stithem’s conversation with both of them, they were “going to need to find a way to work as a

cohesive unit.” (Id.) Gaulden responded with a lengthy message, explaining her side of the story.

(Id. at 1.) In relevant part, the email states:

Today, Ellen had no regard for my personal space, my multiple requests to give me

personal space or to lower her voice, she pointed her finger in my face, and stood

over me. Not only was this not professional, it created a hostile work environment.

I had to stand up at my own desk and back away because Ellen’s unwarranted

behavior did not cease. When . . . you included me in this email about

professionalism in the workplace concerned me [sic]. I did absolutely everything

in my power to de-escalate what took place this morning. You did not even get the

counts [sic] from my teammates . . . who witnessed this spiral out of control before

addressing this . . . .

This is not the first, but the fourth time I have witnessed Ellen creating a hostile

work environment. The first was when she was upset with the female teammates’

reaction to her passing out print outs for something they were familiar with when

she mentioned, “I’m from the streets and the hood I’m from, I’d punch someone in

the throat if they piss me off.” The second time when she aggressively addressed

Miles Brooks for what she thought was a mistake. The trainer, Kristine[,] had to

intervene . . . .The third on Wednesday, February 7, when Ellen began shouting on

the office floor, “I’m tired of Kristine’s sh*t and these smartass emails. I’m about

to cuss her ass out!” and the fourth being what occurred today.

Ellen has constantly displayed aggressive behavior unprofessionalism, and it has

progressively gotten worse. . . .

. . . . She continues to cross the line of professionalism and common courtesy.

(Doc. No. 25-7, at 1.)

The next day, on February 14, 2019, Gaulden sent an email to a supervisor named Amber

Brown describing the February 13 Incident. She stated that Drake had approached her in a “hostile

manner” and that this was the “fourth incident” of “hostile behavior from Ms. Drake” that she had

witnessed, although the other three did not involve her. (Doc. No. 25-8.) She complained that

Stithem had “failed to address” the problem. (Id.) She also asserted that Stithem had accepted

Drake’s account of the event before discussing it with Gaulden or any witnesses, and her “tone of

voice and approach toward [Gaulden] was immediately biased.” (Id.) After another teammate

emailed Stithem, however, Stithem apologized to Gaulden. There was “still no resolution” of the

problem, and Stithem’s failure to appropriately address the problem combined with Drake’s

“progressively worsening behavior” made the plaintiff feel “unsafe in the work place.” (Id.)

Human Resources Director Matt Holland conducted an investigation into the February 13

Incident. He outlined the results of his investigation in an email to Stithem and another supervisor,

Sheryl Olson, dated February 20, 2019. Most saliently, as set forth in the email, Holland found

that: “[m]ultiple individuals” had heard Drake say “inappropriate things (not directed at anyone in

particular)”; Drake had instigated the argument and been asked at least three times not to yell; she

had refused to return to her seat when others had stood up and asked her to, responding that “no

one will tell [her] what to do”; the team had “lost confidence” in Drake; and more than one person

was now afraid of her, even though no one had ever witnessed physical violence or threats from

her. (Doc. No. 25-9.) He recommended that Drake be given a verbal warning due to lack of

professionalism. In addition, however, he recommended that Stithem or Olson have one-on-one

conversations with both Drake and Gaulden about professionalism in the workplace, that all four

“meet as a team and establish new ways of working together,” and that it be made clear to both

Drake and Gaulden that “if this continues from either side this could lead to continue [sic] escalated

disciplinary action.” (Id.)

Gaulden recorded her conversation with Holland in which she described the February 13

Incident, a partial transcript of which has been provided to the court. (Doc. No. 25-25.) In this

conversation, Gaulden described to Holland the same four incidents outlined in her email to

Stithem. She did not use the expression “hostile work environment” in her discussion with

Holland, but she did describe Drake’s complaining to several team members about a minor event

that disproportionately upset Drake, prompting her to announce, “The hood that I’m from, if people

piss me off, I’ll punch them in the throat. I get down in the streets.” (Doc. No. 25-25, Holland Tr.

9.)

On February 21, 2019, Gaulden sent an email to Stithem, complaining that Drake had

arrived at work more than an hour before her shift was to start and had completed work on matters

for which Drake and Gaulden were supposed to share responsibility, making it look like Drake

was doing more work than Gaulden. (Doc. No. 25-10.) Gaulden reported, “I constantly feel

sabotaged, especially when I have to defend my productivity compared to someone who goes

against what we’ve been instructed to do.” (Id.) She asked Stithem to “please address this concern.”

(Id.)

On February 26, 2019, Gaulden sent another email to Stithem, referencing a conversation

that had taken place the previous day in which Gaulden had reported that Drake was “working [the

plaintiff’s] part of the list” and still making it look like Gaulden was not doing her share of the

work. (Doc. No. 25-11.) The email reflects that Stithem had sent out an email to the “entire team

just in case” to address that behavior, but, despite that directive, Drake had continued to do work

assigned to Gaulden. Gaulden asked Stithem to “address this concern again.” (Id.)

On March 1, 2019, Gaulden sent an email to Stithem complaining that she had not received

a response to her February 26 email and that Drake was continuing to do work assigned to Gaulden.

(Doc. No. 29-5.) Gaulden reiterated her complaints that Stithem and Olson were not addressing

this problem and that Gaulden had to “continuously work with some one who created and is still

maintaining a hostile environment.” (Id. (emphasis in original).) The plaintiff’s perception was

that Philips was “not concerned with what [she was] forced to deal with every day” and that

Stithem was not willing to resolve the issue. (Id.)

On March 6, 2019, Gaulden emailed Stithem to report that Drake had called her a “child.”

(Doc. No. 25-13, at 2.) Later the same day, Gaulden emailed both Stithem and Olson to report

another incident that had taken place that day, in which Drake had referred to her as a liar and

again behaved toward her in a threatening and bullying manner. Gaulden stated that she had not

felt “safe” in the office since the February 13 Incident and repeated her belief that Drake had

“created a hostile work environment and continue[d] to fuel that hostility with misdirected anger.”

(Doc. No. 25-12.) In an email to Matt Holland the same day, Gaulden complained about Stithem’s

and Olson’s response to her complaints about Drake, which was basically to suggest that Gaulden

change positions since she was the one who was uncomfortable. (Doc. No. 25-13, at 1.)2

C. The Plaintiff’s Dispute with Loren Givens

On April 12, 2019, Gaulden emailed Stithem about difficulties that both she and a trainer,

Jennifer Moss, were having with another coworker, Loren Givens, who is African American. (Doc.

No. 25-14.) This email incorporated an IM thread between Moss and Gaulden, in which Moss

stated that Givens “seems to think she knows everything” and would not listen to corrections from

Moss, either, and recommended that Gaulden talk to Stithem if she could not “talk with [Givens]

constructively.” (Id. at 1.) Gaulden’s email to Stithem also incorporated an email exchange

between Gaulden and Givens, as an example of Givens’ inability to take constructive criticism

gracefully. (Id. at 2–7.) As Gaulden explained, she forwarded the communication to Stithem to

“make her aware of what had been going on and . . . basically just to show her that [the plaintiff

was] trying to communicate with Loren about something that [she] thought was . . . fairly simple

and . . . shouldn’t have been a problem, and that it took a left turn, so to speak.” (Gaulden Dep.

83.)

When asked during her deposition how she and Givens were getting along at that point, the

plaintiff stated that there was “basically a disconnect.” (Gaulden Dep. 83–84.) She also described

an incident when Givens sat next to her and attempted to instigate a conflict, as part of a purported

plan to either to make Gaulden quit or to elicit an outburst so she could be fired for cause. (Gaulden

2 The record indicates that Drake, at some point, was actually moved to another team, after

which she and Gaulden no longer had any need to interact. (See April 24, 2019 email from S. Olson

to M. Holland, Doc. No. 29-4 (noting that, by that date, Gaulden and Drake had “zero reasons to

interact and they do not sit in viewing or speaking distance of each other”).)

Dep. 93–95.) According to the plaintiff, after she was fired, another co-worker told her that this

plan was hatched by Olson and Stithem, and Givens was asked to be a part of it. (Id. at 95.)

On April 19, 2019, Gaulden spoke with Stithem again about her interactions with Givens,

which Stithem documented in an email to Matt Holland and Sheryl Olson. (Doc. No. 25-15.)

According to Stithem, Gaulden had come to her to report that Givens was “coming at her” and to

ask that Givens not speak to her any longer. (Id.) Stithem had then gone to talk to Givens to get

her side of the story. Stithem then talked with Gaulden again, who reported that she felt like she

had continued to bring problems to the attention of management, but nothing was ever done about

them; that she was not getting adequate support from Stithem; and that Philips was not providing

a safe environment. Stithem tried to discuss with Gaulden her coworkers’ perception of her. She

recalled telling Gaulden that she was alienating everyone on the team and that her coworkers had

asked not to sit near her. Stithem said the conversation ended without any resolution of the issues.

(Id.)

Holland responded by email on April 23, 2019 stating:

First, I am disappointed to hear Adriana [Gaulden] isn’t teaming up with others.

This is disappointing considering the steps taken thus far. I hate to hear you’ve had

to experience this first hand. My ask for this note is to summarize in 5–7 bullets the

behavior and recommendation of course of action. (include performance gaps

where feasible) Please give me a compelling reason to take legal “for cause.” I will

be happy to speak with them and provide feedback.

(Doc. No. 29-2.)

That evening, Stithem sent Holland another email, claiming that

Adriana has repeatedly demonstrated in her manner and tone that she does not want

to be part of a team. She seems to manipulate situations to get people upset with

her and then plays the victim that she was “minding her own business” and they

were the aggressors. I’ve had countless people on the team come to me asking for

assistance in finding ways to work with her. She has flat out told me that she doesn’t

care to work with anyone. . . .[S]he recently told me when I asked her what I could

do to bridge our gap, that it wasn’t ever possible because when what happened with

[Drake] happened it was never addressed and she could no longer trust me. When

I tried to discuss what she meant, she said moving her [Drake] to a different team

address [sic] none of her issues and now she had a new team member [Givens] who

I was allowing to “come at her.” She is not reasonable and I am unable to find any

common ground to build from. She told me that she wants to work isolated and

asked that I keep others away from her. That her workspace did not feel like a safe

space. When I tried to address the team perception and how people refused to sit

with her she got very agitated and would not have a conductive [sic] conversation.

She said I was throwing things in her face and she didn’t appreciate what I was

saying or how I was speaking to her. I’ve been told by a few people who have heard

gossip that I need to watch my back, that she is keeping a log book and intends to

use it against Philips. I believe Philips has done everything to help [Gaulden] be

successful and productive, but she has had an agenda from the start and it doesn’t

matter what the action that is taken on our part, she will not find it to be satisfactory.

This is not only my perception of the situation, but also of my manager. I don’t see

[Gaulden] ever assimilating to the team or being anything other than someone who

creates drama and division. My desire is for her to be terminated based on her

refusal to be part of a team and work cohesively with people that she supports and

who count on her for support.

. . . . I honestly feel like this is going to continue to escalate until something happens.

I do believe we need to act quickly.

(Doc. No. 29-3.)

Holland thanked Stithem for sharing and asked if she wanted to terminate for cause and, if

so, on what grounds. (Doc. No. 29-4.) Olson, Stithem’s supervisor, responded by stating that the

“cause” for terminating Gaulden would be insubordination toward Olson and Stithem and

unwillingness to work with team members. (Doc. No. 29-4.) She added, “Perhaps there is a role at

Philips that allows a person to work solo with no team or customer interaction, but there isn’t one

in Service Operations.” (Id.)

D. The Plaintiff’s Interactions with Human Resources

At some point around this same time (the date is unclear from the record), Gaulden was

pulled into a meeting with Stithem and Olson, during which “Olson ordered [her], . . . via HR

Director Matt Holland, to cease and desist from reporting anything else to HR.” (Gaulden Dep.

96; see id. at 102 (“Matt Holland asked me to ask you to cease and desist from contacting HR.”).)

According to Gaulden, this directive “confirmed that [she] was clearly upsetting individuals for

reporting issues of race and hostile work environment to HR.” (Id. at 97.)3

Asked during her deposition when she had ever made any reports about race to HR,

Gaulden conceded that she “hadn’t been able to directly report race to HR,” and she “never told

anyone in HR that [she was] being subjected to racial harassment or racial discrimination” (Id. at

97, 98.) However, she stated that she tried to talk to Holland several times but had not been able

to and that, if she had been able to talk to him, she would have reported to him that she had heard

that Drake had purportedly told someone else that she (Drake) was being “picked on by black

girls.” (Id. at 99.) Gaulden would also have told Holland that she was being treated as the aggressor

in her relationship with Drake when, in reality, Drake was the aggressor. In addition, she recalled

that, shortly after she was hired, Stithem had made a comment to her that the plaintiff “surprised

her” because “black girls” were not usually as professional as the plaintiff was. (Id. at 100.)

Gaulden interpreted this comment as “a backhanded compliment or a microaggression.” (Id. at

101.)

E. Plaintiff’s Final Written Warning and Termination

On May 16, 2019, Gaulden was given a Final Written Warning. (Doc. No. 25-22.) Stithem,

Holland and Olson presented her with this warning. This warning formally notified Gaulden that

her role as part of the Service Order Solutions team required her to “team up with colleagues to

3 Gaulden recorded this conversation. According to Philips, the transcript of that recording

reflects that Olson actually told Gaulden, “Matt talked to me the other day and he wanted to convey

the message that the [February 13] incident he investigated has been investigated. It’s closed now

and we just need to move on. Okay?” (Doc. No. 24, Def.’s Statement of Undisp. Fact No. 62 (citing

(Doc. No. 25-23, Tr. of “Meeting with Shannon and Sheryl” at 3.).) However, the transcript

provided by the defendant in support of its motion is incomplete, and the cited portion has not been

provided. (See Doc. No. 25-23.) The court, therefore, accepts as true the plaintiff’s version of the

conversation.

ensure completion of [her] responsibilities” and to “support[] the overall success of the team,” but

that she had “made it clear, both in actions and words,” that she “refuse[d] to work cooperatively

with the team. (Id. at 1.) The Warning documented instances of this behavior as follows:

 You had a conflict with an employee months ago, which was investigated and dealt

with appropriately, but you have made it clear that you are unable to move on from

this incident even though you no longer work with this employee. You have stated that

the only satisfactory resolution is the other employee’s termination, even though the

behavior at issue did not merit that action.

 Your manager has made multiple attempts to engage with you but you respond with

borderline insubordinate behavior (talking over, refusing to acknowledge coaching,

etc.).

 Multiple team members have reported that they fear verbal altercations with you as

you have repeatedly created tension and then turn it around to you being the victim.

 You pulled your manager from a business meeting over a minor issue of a colleague

attempting to speak with you regarding work tasks; you are unable to have even the

most basic of interactions with colleagues without conflict.

 Colleagues refuse to sit with you because you engage in passive aggressive behavior

such as making faces, whispering about people and otherwise behaving in an immature

way that creates an uncomfortable work environment.

 Two colleagues have reported that you even refuse to ride in the elevator with other

team members.

 You have stated directly to your manager that you refuse to work with colleagues

without a “3rd party” present during any interaction[.]

(Id. at 1.)

The Warning notified Gaulden that her “behavior has been disruptive in the office” and

constitutes a “serious violation of Philips’ ethics policy” and notified her that any future ethics

violations would result in immediate termination of her employment. (Id. at 2.) She was directed

to “immediately change” her behavior “to a teamwork focused, engaged attitude.” (Id.) Gaulden

refused to sign the Warning, because she did not feel that it was accurate.

Early the next morning, on May 17, 2021, Gaulden sent an email to Matt Holland

requesting a private meeting to discuss “a reasonable accommodation for seating as it relates to

the ADA.” (Doc. No. 25-18, at 1.) The plaintiff continued, “I’ve seen the new seating chart, and

though I’m not being insubordinate, my seating assignment does raise a few concerns.” (Id.) In

her deposition, Gaulden explained that she had been experiencing anxiety and depression over her

work environment and, after speaking with her healthcare provider, determined that it would be

“best if [she] was not seated with the individuals who were causing the anxiety and depression.”

(Gaulden Dep. 110.) Holland responded that there was a procedure to follow and a form to fill out

in order to request an ADA accommodation. He attached the form to his email and explained to

Gaulden that she needed to fill out the form, attach any “doctor supported documentation,” and

submit it for review. (Doc. No. 25-18, at 1.)

Gaulden’s email to Holland was apparently prompted by her conversations with Stithem

about seating assignments that took place on May 16 and May 17. Stithem asked Gaulden to sit

between Givens and another coworker whose first name was Demondria and who, like Givens and

Gaulden, is African American. Olson and Stithem were to be in the row behind Gaulden.

At 7:46 a.m., just ten minutes after Holland had forwarded the ADA accommodation form

to Gaulden, Stithem emailed Gaulden (copying Holland) to notify her, per their previous

discussion, that Gaulden could “move to a different place,” but where she was currently sitting

was not acceptable, because she was “sitting in another team’s area.” (Doc. No. 25-17.) In addition,

she needed to sit with a teammate performing the same function as she was. Stithem added: “Per

our meeting yesterday, I need you to be cooperative and work in a team manner. You have stated

that you refuse to sit with your teammate as it’s a hostile environment. It is not an option for you

not to sit where I’ve asked. Please indicate by reply all if you will comply with my seating request.”

(Id.)

Around the same time that morning, another employee, Stephanie Grady, emailed Holland

and Stithem stating that she had been attempting to assign seats for her teams, but Gaulden was

sitting in one of the spots allotted to Grady’s team. Grady reported that she had asked Gaulden to

please move to her assigned seat, and Gaulden refused, saying she was “in communication with

[Stithem and Holland] and would not be adjusting until she heard from [them].” (Doc. No. 25-19.)

She was reportedly “rude and disrespectful” in her interaction with Grady. (Id.)

Gaulden did not want to sit near Givens, Olson, or Stithem “because there was a history of

unprofessionalism and hostile behavior from [Givens] and the other individuals that [she] would

be seated around” (Gaulden Dep. 114), and these individuals were “directly involving in

contributing to [Gaulden’s] anxiety and depression” (id. at 112.) Gaulden admittedly had never

had a problem with Demondria, but she was Givens’ “cousin-in-law” and the two often went to

each other’s desks. (Id. at 113.) In addition, Stithem had told Gaulden that there was a rumor going

around that Gaulden had called Demondria fat.

At 10:20 a.m. on May 17, 2019, Stithem emailed Gaulden, stating:

I’m approving your time off request for later today, but per our previous

conversations and email[, y]ou need to sit in your assigned seat on Monday when

you come into the office. As we discussed, Triage is a team that does not function

well without collaboration. My seating chart is based on keeping people that work

in the same roles together for cross collaboration.

(Doc. No. 25-16.)

On Monday morning, May 20, 2019, Gaulden emailed Stithem to tell her that she was

sitting where Stithem had placed her on Friday, rather than in her assigned seat between Givens

and Demondria. She explained that she was “unable to sit between [Givens] and Demondria due

to previous hostile encounters that were not handled appropriately.” (Doc. No. 25-20.) She also

noted that she had “obtained the proper documentation from [her] healthcare provider . . . needed

for seat arrangement approval” and would be forwarding that documentation to Holland promptly.

(Id.) She followed up three minutes later with a second email to Stithem stating: “If you’d like to

speak to me regarding this matter, please pull me into a private room instead of discussing this on

the office floor.” (Id.)

Gaulden was terminated the following day, on Tuesday, May 21, 2019. According to

Stithem, Philips made the decision to terminate Gaulden based on her “refusal to sit where she had

been asked to sit and her rude and disrespectful interactions with two managers about her seating

arrangement.” (Doc. No. 25-28, Stithem Decl. ¶ 12.) Stithem further explained that “[t]he fact that

Ms. Gaulden acted in a such a manner only one day after being advised to work on a team-focused

attitude let [sic] [her] to determine that Ms. Gaulden was simply never going to be able to work as

part of a team with her coworkers.” (Id.)

In its answer to the plaintiff’s interrogatory asking, “What was the outcome of any and all

investigations of complaints . . . of or regarding Plaintiff,” Philips stated:

[I]n May 2019 Loren Givens (African-American) submitted an internal complaint

regarding Plaintiff. Givens complained that Plaintiff had been unprofessional

towards her on multiple occasions, including an instance on April 19, 2019. The

outcome of that complaint was that Plaintiff’s employment was terminated.

(Doc. No. 29-1, at 5–6.)

This lawsuit followed.

III. ANALYSIS

A. Racially Hostile Work Environment

1. Legal Standard

Title VII prohibits an employer from “discriminat[ing] against any individual . . . because

of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). In

addition, Title VII “affords employees the right to work in an environment free from

discriminatory intimidation, ridicule, and insult” and thus prohibits harassing conduct that is

“sufficiently severe or pervasive [as] to alter the conditions of the victim’s employment and create

an abusive working environment.” Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 67 (1986);

accord Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

“For a race-based hostile-work-environment claim to survive summary judgment, the

plaintiff must show (1) she belongs to a protected class, (2) she was subjected to unwelcome

harassment, (3) the harassment was based on her race, (4) the harassment affected a term,

condition, or privilege of her employment, and (5) the employer knew or should have known about

the harassment but failed to take corrective action.” Singleton v. PSA Airlines, Inc., No. 21-3423,

2022 WL 875869, at *2 (6th Cir. Mar. 24, 2022) (citing Khalaf v. Ford Motor Co., 973 F.3d 469,

482 (6th Cir. 2020), cert. denied, 141 S. Ct. 1743 (2021)).

The defendant argues here that Gaulden cannot establish the third, fourth, or fifth of these

factors: that the “harassment” she complained of was “based on race,” that it was sufficiently

severe or pervasive to interfere with her work, or that Philips is liable for the alleged harassment.

In response, the plaintiff concedes that her hostile work environment claim is not strong, as the

actions she complains about “were not over a long period of time and did not occur daily.” (Doc.

No. 27, at 4.) However, she argues that Drake’s conduct involved a “threat of physical violence”

and, therefore, was sufficiently “severe” to create an intimidating and hostile work environment.

(Id. at 4–5.) In addition, the plaintiff “believes” Drake’s conduct toward her was “because of race”

and that there is at least a question of fact for the jury as to whether it constitutes racial harassment.

The plaintiff does not actually address the question of whether Philips can be liable for Drake’s

alleged harassment of the plaintiff.

Regarding whether the plaintiff can establish harassment “based on race,” courts have

repeatedly acknowledged that “Title VII does ‘not prohibit all verbal or physical harassment in the

work place; it is directed only at “discriminat[ion] . . . because of”’ protected characteristics under

the statutes.” Khalaf, 973 F.3d at 484 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 80 (1998)). “Mere disrespect or antipathy will not be actionable under the statute unless

a plaintiff can prove that such was motivated by discriminatory animus.” Id. Thus, the “conduct

of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are acting

because of the victim’s [protected status].” Id. (quoting Wasek v. Arrow Energy Servs., Inc., 682

F.3d 463, 467 (6th Cir. 2012)).

Based on these principles, the court finds that the plaintiff fails to establish that any

harassment she experienced was “based on race.” First, the plaintiff’s subjective belief that Drake’s

harassment of her was based on race, standing alone, is not sufficient to give rise to a jury question.

The plaintiff admits that Drake never used racial epithets or slurs and that Drake harassed others

as well as the plaintiff, irrespective of their race. According to the Sixth Circuit, “[c]onduct that is

not explicitly race-based may be illegally race-based and properly considered in a hostile-work-

environment analysis when it can be shown that but for the employee’s race, she would not have

been the object of harassment.” Clay v. United Parcel Serv., Inc., 501 F.3d 695, 706 (6th Cir.

2007). Here, the plaintiff admits that Drake harassed many people, without regard to their race, as

a result of which the plaintiff simply cannot show that, but for her race, she would not have been

a target of Drake’s ire.

The plaintiff points out that Drake referred to herself as being “from the streets” and

announced: “the hood I’m from, I’d punch someone in the throat if they piss me off.” (Doc. No.

25-7, at 1.) Although the plaintiff perceived this statement as having racial overtones, it was not

about the plaintiff or directed toward the plaintiff or any other person of color.4 Likewise, the

plaintiff later heard from someone else that Drake had claimed that she was being “picked on by

black girls” (Gaulden Dep. 99), but the plaintiff did not witness this statement and it was not

directed at her.5 The plaintiff also complained about Loren Givens’ behavior toward her, but

Givens, like the plaintiff, is African American, and the plaintiff does not contend that Givens’

treatment of her was based on her race.

In short, the evidence in the record would not permit a reasonable jury to conclude that the

harassment the plaintiff received from Drake—or anyone else—was “based on race.” This

conclusion alone compels summary judgment in favor of the defendant on the plaintiff’s hostile

work environment claim. In addition, however, the court also finds that the plaintiff’s claim fails

to establish that Philips should be liable, even if Drake’s harassment were racially motivated.

In the context of coworker harassment, the question raised by the fifth element of the

plaintiff’s prima facie case is whether the employer, once it was notified of the harassment,

“implement[ed] prompt and appropriate corrective action.” Barrett v. Whirlpool Corp., 556 F.3d

502, 516 (6th Cir. 2009) (quoting Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)). “[W]hen

coworker harassment is at issue, an employer is . . . liable ‘if its response manifests indifference

or unreasonableness in light of the facts the employer knew or should have known.’” Hawkins v.

Anheuser-Busch, Inc., 517 F.3d 321, 338 (6th Cir. 2008) (quoting Blankenship v. Parke Care Ctrs.,

Inc., 123 F.3d 868, 872–73 (6th Cir. 1997)). Whether a response is effective is “measured not by

the extent to which the employer disciplines or punishes the alleged harasser, but rather if the steps

4 As the defendant points out, “[p]eople of all races can grow up in poor, rough

neighborhoods.” (Doc. No. 30, at 3 n.1.) Drake’s statement was not demeaning toward anyone but

herself.

5 It appears that Philips did not learn about that allegation until taking the plaintiff’s

deposition in connection with this case.

taken by the defendant halt the harassment.” Stacy v. Shoney’s, Inc., 955 F. Supp. 751, 756 (E.D.

Ky. 1997), aff’d, 142 F.3d 436 (6th Cir. 1998).6

Here, the primary event upon which the plaintiff’s harassment claim is based is the

February 13 Incident during which Drake invaded her personal space, refused to back off when

asked to do so, and yelled and cussed at her. After Gaulden complained about Drake’s February

13 “outburst,” Philips investigated, issued a written report finding Drake at fault for the incident,

and issued written discipline to Drake. When the plaintiff continued to complain about Drake’s

conduct, Philips ultimately moved Drake to a different team, so she and the plaintiff did not have

to interact with each other. The plaintiff did not believe that this action was adequate to address

her concerns, but she has not presented evidence from which a jury could conclude that Philips

failed to take “prompt and appropriate corrective action.” Barrett, 556 F.3d at 516.

The defendant is entitled to summary judgment on the plaintiff’s racial harassment/hostile

work environment claim.

B. Retaliation

Title VII prohibits an employer from retaliating against an employee because that

individual “opposed any practice made an unlawful employment practice” under Title VII. 42

U.S.C. § 2000e–3(a). Where, as here, a plaintiff has only circumstantial evidence of retaliation in

violation of Title VII, courts apply the three-part burden-shifting framework developed by the

6 The defendant also argues that the plaintiff’s harassment claim is barred under Faragher

v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S.

742 (1998). Faragher and Ellerth, however, establish an affirmative defense available to an

employer when a plaintiff proves supervisor harassment and the defendant can show that the

plaintiff did not suffer a “negative tangible employment action.” Clark v. United Parcel Serv., 400

F.3d 341, 348 (6th Cir. 2005). Here, the plaintiff does not allege supervisor harassment. More to

the point, she clearly suffered a “negative tangible employment action,” so the affirmative defense

would not be available to Philips anyway.

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine whether

the plaintiff has proffered sufficient evidence to survive summary judgment. Laster v. City of

Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014).

Under the McDonnell Douglas framework, the plaintiff bears the initial “burden of

establishing a prima facie case of retaliation. Id. Once the plaintiff establishes the elements of her

prima facie case, “‘the burden of production of evidence shifts to the employer to articulate some

legitimate, non-discriminatory reason for its actions. If the defendant satisfies its burden of

production, the burden shifts back’ to [the plaintiff] to demonstrate that [the defendant’s] proffered

reason was not the true reason for the employment decision.” Id. (quoting Dixon v. Gonzales, 481

F.3d 324, 333 (6th Cir. 2007). “Although the burden of production shifts between the parties, the

plaintiff bears the burden of persuasion through the process.” Id.

1. Gaulden’s Prima Facie Case

To establish a prima facie case of retaliation under Title VII, Gaulden must “point to

evidence sufficient to convince a jury that: (1) she engaged in activity protected under Title VII;

(2) [the defendant] knew that she exercised her protected rights; (3) an adverse employment action

was subsequently taken against her; and (4) [the plaintiff’s] protected activity was the but-for cause

of the adverse employment action.” Kenney v. Aspen Techs., Inc., 965 F.3d 443, 448 (6th Cir.

2020) (citations omitted).

Philips asserts that the plaintiff cannot establish that she engaged in protected conduct or

that there was a causal connection between the allegedly protected conduct and the adverse

employment action. In response, the plaintiff argues that, by using the words “hostile work

environment,” she conveyed her understanding that Drake’s behavior was racially hostile and that,

consequently, the defendant knew or should have known that she was reporting racial harassment,

thus engaging in protected activity.7

To come within the protection of Title VII, the plaintiff must establish that she challenged

an employment practice that she reasonably believed was unlawful under Title VII. Yazdian v.

ConMed Endoscopic Techs., Inc., 793 F.3d 634, 645 (6th Cir. 2015). While a “vague charge of

discrimination” will not satisfy this requirement, the law “does not . . . require that the plaintiff’s

complaint be lodged with absolute formality, clarity, or precision.” Id. (quoting first Booker v.

Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989), and then Stevens v. Saint

Elizabeth Med. Ctr., Inc., 533 F. App’x 624, 631 (6th Cir. 2013)).

In Yazdian, the court found that the plaintiff satisfied his burden of showing that he had

engaged in protected activity by opposing unlawful employment practices by allegedly

7 In its Reply, Philips argues, among other things, that the plaintiff’s failure to address the

issue of causation constitutes a concession that she cannot establish this element of her prima facie

case, thus warranting summary judgment. It is true that the Sixth Circuit has repeatedly stated—

in unreported opinions—that “a plaintiff is deemed to have abandoned a claim when a plaintiff

fails to address it in response to a motion for summary judgment.” Brown v. VHS of Mich., Inc.,

545 F. App’x 368, 372 (6th Cir. 2013) (citations omitted). In reported opinions, however, the Sixth

Circuit has made it clear that a district court faced with a plaintiff’s failure to respond, in whole or

in part, to a motion for summary judgment “[may] not use that [failure] as a reason for granting

summary judgment without first examining all the materials properly before it under Rule 56(c).”

F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 630 (6th Cir. 2014) (quoting Smith v. Hudson,

600 F.2d 60, 65 (6th Cir. 1979)). The district court retains this obligation, because “[a] party is

never required to respond to a motion for summary judgment in order to prevail since the burden

of establishing the nonexistence of a material factual dispute always rests with the movant.” Id.

(quoting Smith, 600 F.2d at 64). Consequently, despite a plaintiff’s silence in response to the

defendant’s arguments, the court “must review carefully the portions of the record submitted by

the moving party to determine whether a genuine dispute of material fact exists” before granting

summary judgment on those particular claims. Id.

As set forth below, the court finds that the plaintiff fails to show that she engaged in

protected activity and, therefore, that she cannot state a prima facie case of retaliation. The court,

therefore, does not reach the element of causation. If the plaintiff had established that she engaged

in protected conduct, however, there would likely be sufficient evidence in the record to give rise

to an inference of a causal connection between her repeated complaints about her coworkers and

her termination.

complaining about discrimination on multiple occasions. In particular, the court pointed to six

statements the plaintiff had made to his supervisor “which individually and together qualify as

Title VII protected activity,” including several references to hiring an attorney and bringing a

lawsuit, as well as a statement characterizing his work environment as a “hostile work

environment.” Id. at 646. The court concluded that “these statements—particularly the hostile-

work-environment charge—put [the defendant] on notice that [the plaintiff] believed [his

supervisor’s] conduct was illegal.” Id. As the court explained:

“Hostile work environment” is a term of art, which refers to an unlawful

employment practice under Title VII that arises because of “discriminatory

intimidation, ridicule, and insult[s]” repeatedly directed at an employee on the basis

of a protected characteristic. Thus, an employee who complains that an employer

is creating a “hostile work environment” engages in Title VII protected activity

when the context objectively reveals that the employee is using the expression to

complain about repeated abusive discriminatory comments or treatment. A

reasonable jury could conclude that [the plaintiff] used and intended the phrase

“hostile work environment” to reference discriminatory treatment because he was

aware of the legal significance of the term and meant it to be a complaint about

national-origin or religious discrimination.

Id. (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115–16 (2002)) (emphasis

added); accord McGruder v. Metro. Gov’t of Nashville & Davidson Cty., No. 3:17-cv-01547, 2020

WL 4586171, at *7 (M.D. Tenn. Aug. 10, 2020) (Trauger, J.) (“[A]s in Yazdian, the context of

McGruder’s statements strongly suggests that she was using the term ‘hostile work environment’

to refer, not only to intolerable working conditions caused by the rude and unprofessional behavior,

poor leadership, and lack of discipline at the school, but also to ‘repeated abusive discriminatory

comments or treatment’ against the teachers as well as the students.” (quoting Yazdian, 793 F.3d

at 646)); see also Mumm v. Charter Twp. of Superior, 727 F. App’x 110, 113 (6th Cir. 2018)

(holding that a jury could find that the plaintiff had engaged in protected activity, where she

complained that she would file a lawsuit against the defendant if it did not “rectify ‘the pay

discrimination’” between her and another employee who happened to be male, even though she

did not use the phrase “sex discrimination” or “otherwise make explicit that she believed gender

explained the pay disparity”).

In this case, the plaintiff initially testified in her deposition that she never complained to

anyone at Philips that Drake treated her differently because of her race, that Drake never made

racially insensitive comments or racial slurs toward her, and that she never heard Drake use racial

slurs toward anyone. (Gaulden Dep. 67.) It is undisputed, however, that Gaulden used the term

“hostile work environment” on several occasions in her communications with Stithem and other

supervisors.

Specifically, in her February 13, 2019 email to Stithem, Gaulden described Drake’s

conduct toward her (during the February 13 Incident) and on three other occasions (that did not

involve her) as “creat[ing] a hostile work environment.” (Doc. No. 25-7, at 1.) The other three

occasions, as Gaulden described them, involved (1) Drake’s being “upset with the female

teammates’ reaction to her passing out prints for something they were familiar with when she

mentioned, ‘I’m from the streets and the hood I’m from, I’d punch someone in the throat if they

piss me off”; (2) Drake’s “aggressively address[ing] Miles Brooks for what she thought was a

mistake”; and (3) Drake’s “shouting on the office floor, ‘I’m tired of Kristine’s sh*t and these

smart ass emails. I’m about to cuss her ass out!” (Id.)8

Gaulden used similar language to describe the same four incidents in an email dated

February 14, 2019 to a different supervisor. (Doc. No. 25-8.) In a March 1, 2019 email to Stithem,

Gaulden complained about Drake’s continuing to do work that was assigned to Gaulden, thus

intentionally trying to make Gaulden look bad, and she stated that it was “stressful and frustrating”

to “continuously work with some one who created and is still maintaining a hostile environment.”

8 The race of the “female teammates,” Miles Brooks, and Kristine is not in the record.

(Doc. No. 29-5 (emphasis in original).) She added that it was “clear” that “Philips is not too

concerned with what I’m forced to deal with everyday.” (Id.) Several days later, on March 6, 2019,

she again complained in an email to Stithem, copied to Olson, that Drake had “created a hostile

work environment and continue[d] to fuel that hostility with misdirected anger.” (Doc. No. 25-12.)

The incident that formed the basis for this last complaint was Drake’s “glaring” at her while she

was training Loren Givens at the desk next to Gaulden’s and later slamming things around her own

desk and stating that she was not going to sit near “someone who has ‘lied on her,’” which Gaulden

understood as a reference to herself. (Id.) She also reported that Drake later walked over to the

plaintiff’s area, pushed a chair out of the way, and demanded to know if they “ha[d] a problem,”

while taking an aggressive and threatening posture. (Id.) She described Drake’s conduct as

continuing to be “harassing and bullying.” (Id.)

Finally, on May 20, 2019, Gaulden emailed Stithem to tell her that she was “unable to sit

between [Givens] and Demondria”—both of whom are African American—“due to previous

hostile encounters that were not handled appropriately.” (Doc. No. 25-20.)

In her Declaration, which was prepared in response to the Motion for Summary Judgment,

the plaintiff states that she “believe[s]” that Drake “threatened and intimidated [her] because of

[her] race.” (Doc. No. 29-14, Gaulden Decl. ¶ 2.) She also asserts that, by using the language

“hostile work environment” when she communicated to her supervisors about Drake’s behavior,

she “meant to communicate” her belief that “the behavior [she] was complaining about violated

the civil rights law.” (Id. ¶ 5.) She declares that she did not believe it was necessary to say “racially

hostile,” because it was obvious that she was a member of a protected class and, “[a]s an African

American complaining about a hostile work environment where a white employee was threatening

and wanting to fight me, it appeared obvious that it was based upon race.” (Id. ¶ 7.)

The court finds that this case is distinguishable from Yazdian for multiple reasons, and that,

as a result, the context does not support a conclusion that the plaintiff’s use of the term “hostile

work environment” establishes that she engaged in protected activity. First, aside from the

plaintiff’s use of the words “hostile work environment,” there is absolutely no evidence that

Drake’s conduct had anything to do with race. While Drake referred to herself as being from the

“hood,” she never accused anyone else of being from the “hood” and was never overheard to use

racial epithets or slurs. Second, the plaintiff has conceded that Drake engaged in “hostile” behavior

toward lots of other coworkers, irrespective of race. The plaintiff described to her supervisors three

other incidents in which she perceived Drake has behaving in a hostile manner, but none of them

involved the plaintiff and none of them appears to have had anything to do with race. The race of

the individuals to whom Drake’s behavior was directed, in fact, is not in the record. And finally,

the plaintiff also referred to Loren Givens’ behavior toward her as “hostile” (Doc. No. 25-20), but

Gaulden admits that Givens’ behavior had nothing to do with race, and Givens is also African

American. In light of the entire context, there is simply insufficient evidence to permit a jury to

conclude that the plaintiff engaged in protected conduct simply by using the words “hostile work

environment.”

Moreover, in light of Drake’s angry outbursts toward both Black and White co-workers

and the plaintiff’s characterization of Givens’ conduct as “hostile,” the record supports the

conclusion that Philips did not know, and had no reason to know, that the plaintiff subjectively

believed she was complaining about racial harassment as opposed to run-of-the-mill rude and

unacceptable behavior. In her email dated May 16, 2019, Stithem acknowledged that Gaulden had

complained about a “hostile environment” (Doc. No. 25-17), but the teammate she specifically

refused to sit near at that time was Givens.

The court, in sum, finds that the plaintiff cannot establish a prima facie case of retaliation,

because she cannot show that she engaged in protected conduct or that the employer knew that she

had engaged in protected conduct.

2. Pretext

Even if the plaintiff could establish a prima facie case of retaliation, she cannot rebut the

defendant’s non-retaliatory reason for her termination.

Philips gave Gaulden a “Final Written Warning” on May 16, 2019, describing the conduct

in which she had engaged that Philips deemed unacceptable, including, among other things, that

she was “unable to have even the most basic of interactions with colleagues without conflict,” that

her colleagues refused to sit near her because she “engage[d] in passive aggressive behavior” that

“create[d] an uncomfortable work environment,” and that, when her supervisors tried to discuss

these issues with her, she responded with “borderline insubordinate behavior.” (Doc. No. 25-22,

at 1.) Gaulden was advised that her behavior needed to “immediately change to a teamwork-

focused, engaged attitude.” (Id. at 2.) When the plaintiff subsequently continued to refuse to sit in

her assigned work area, she was terminated. Philips states that it made the decision to terminate

Gaulden’s employment based upon her refusal to sit where she had been asked to sit, her rude and

disrespectful interactions with two managers about her seating arrangement, and the fact that she

engaged in this behavior one working day after being advised to work on a “team-focused attitude.”

(Doc. No. 25-28, Stithem Decl. ¶ 12.).

The plaintiff’s burden to show pretext “merges with the ultimate burden of persuading the

court that she has been the victim of intentional discrimination.” Burdine, 450 U.S. at 256. “Thus,

on summary judgment, in evaluating pretext and the plaintiff’s ultimate burden, the court should

consider all probative evidence in the light most favorable to the plaintiff, including the evidence

presented in the prima facie stage.” Jackson, 814 F.3d at 779 (citing Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 147 (2000) (“Proof that the defendant’s explanation is unworthy of

credence is simply one form of circumstantial evidence that is probative of intentional

discrimination.”)).

“Put simply, the ‘commonsense’ question here is: ‘did the employer fire the employee for

the stated reason or not?’” Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 326 (6th Cir. 2021) (quoting

Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009)). The Sixth Circuit recognizes that

“[p]laintiffs typically show pretext in one of three ways: (1) that the proffered reasons had no basis

in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that

the proffered reasons were insufficient to motivate the employer’s action.’” Miles v. S. Cent. Hum.

Res. Agency, Inc., 946 F.3d 883, 888 (6th Cir. 2020) (quoting Chen, 580 F.3d at 400). However,

these three categories are not the exclusive means by which a plaintiff can show pretext. Rather,

they are simply a “convenient way of marshaling evidence and focusing it on the ultimate inquiry:

‘did the employer fire the employee for the stated reason or not?’” Id. (quoting Tingle v. Arbors at

Hilliard, 692 F.3d 523, 530 (6th Cir. 2012)). Regardless of what course she takes, the “plaintiff

must articulate some cognizable explanation of how the evidence she has put forth establishes

pretext.” Id.

In support of her argument that the reason given for her termination is pretextual, the

plaintiff points to Philips’ answer to an interrogatory that asked, “What was the outcome of any

and all investigations of complaints concerning the complaints of or regarding Plaintiff?” [sic].

(Doc. No. 29-1, at 5.) As set forth above, the defendant answered:

Please see Defendant’s response to Interrogatories Nos. 2 and 4 above.9

9 Interrogatory No. 2 asked “When and how was Defendant put on notice that an employee

of Defendant engaged in, or was engaging in, behavior that may be offensive to Plaintiff.” (Doc.

No. 29-1, at 3.) Philips’ answer described the verbal altercation between Gaulden and Drake,

Human Resource’s involvement in the investigation of that event and the resulting formal Verbal

Additionally, in May 2019, Loren Givens (African-American) submitted an

internal complaint regarding Plaintiff. Givens complained that Plaintiff had been

unprofessional towards her on multiple occasions, including an instance on April

19, 2019. The outcome of that complaint was that Plaintiff’s employment was

terminated.

(Id. at 5–6.) The plaintiff insists that this “sworn” answer conflicts with Philips’ alleged reason for

her termination as provided in its summary judgment documents and the Declaration of Shannon

Stithem. (Doc. No. 27, at 8.) She also argues that it is clear that “Defendant had been planning and

searching for a reason to terminate Plaintiff long before the alleged insubordination pertaining to

the seating arrangements ever arose” and that “the refusal to sit in a particular seat was a plan to

get Plaintiff terminated, while another employee moved without being terminated.” (Id.)

The defendant’s answer to Interrogatory No. 5—which did not ask why the plaintiff was

terminated but what the ultimate outcome of an investigation was—does not conflict with Philips’

proffered reason for its action. The investigation of Givens’ complaint about the plaintiff, in

conjunction with the plaintiff’s continuing to complaint about Givens and her refusal to sit near

her, did culminate in the plaintiff’s termination. Moreover, the fact that the plaintiff’s supervisors

had been unhappy with her behavior and her conduct for some period of time does not obviate or

conflict with their conclusion that the plaintiff’s continued refusal to work with her teammates,

after having been given a final written warning advising her to do just that, was the final straw that

warranted her termination for cause.

The plaintiff also asserts that her termination must be pretextual, because Givens was not

terminated after she changed seats without authorization. (See Doc. No. 27, at 4 (“The Summary

Warning given to Drake, and Gaulden’s continued complaints about Drake. (Id. at 3–4.)

Interrogatory No. 4 asked who investigated the plaintiff’s allegations about another unnamed

“employee.” (Id. at 5.) Philips answered that Matt Holland investigated the altercation between

Drake and Gaulden. (Id.)

Judgment stated reason . . . is inconsistent with the way Loren Givens . . . was treated.”).) In

support of this argument, Gaulden points to Givens’ March 22, 2019 email to Stithem stating:

I have moved my seat into Ellen[ Drake’s] old desk. Honestly, my prior

arrangement is no longer conducive for production or team work. Adriana

[Gaulden] and Pam have become a distraction with the “loud” whispering, heckling

and purposeful loud conversations that often give off negative energy. Personally,

I don’t have time for the nonsense. I hope you understand.

(Doc. No. 29-13.) The fact that Givens was not terminated after she changed seats without seeking

prior approval (and while complaining about Gaulden’s conduct) does not establish that the

defendant’s proffered reason for terminating Gaulden is untrue, did not actually motivate the

decision, or was insufficient to motivate the decision to terminate Gaulden. See Miles, 946 F.3d at

888. It does not even establish that the defendant’s treatment of Givens was inconsistent with its

treatment of Gaulden. Givens’ email was apparently at least part of what prompted an investigation

into the plaintiff’s behavior. Moreover, there is no evidence that Givens refused to sit where she

was asked once she was directed to return to a seat next to Gaulden, that Givens was rude and

“borderline insubordinate” to supervisors, or that she was perceived as generally stirring up

controversy in the work place.

The plaintiff, in sum, presents no evidence suggesting that Philips’ rationale for terminating

her is pretextual. Philips, as a result, is entitled to summary judgment on the retaliation claim on

this basis as well.

To be clear, this is not to say that Philips’ treatment of the plaintiff was necessarily fair or

even-handed. The fact remains, however, that the plaintiff was an at-will employee, and Philips

remained free to terminate her for virtually any reason, or no reason at all, so long as she was not

terminated for an unlawful reason. See Oncale, 523 U.S. at 80–81 (1998) (reiterating that Title VII

is not a “general civility code for the American workforce”). On the record before this court, the

evidence submitted by the parties does not remotely support the plaintiff’s claim that she suffered

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racial harassment or a racially hostile work environment, that she complained about racial

harassment, or that she was terminated for complaining about racial harassment.

IV. CONCLUSION

For the reasons set forth herein, the court will grant the defendant’s Motion for Summary

Judgment. An appropriate Order is filed herewith.

ALETA A. TRAUGER

United States District Judge