Opinion

Hammond v. Sysco Corporation

Court
District Court, W.D. Tennessee
Filed
Mar 31, 2023
Cited by
0 cases
Authority
More cited than 29.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

DWUAN HAMMOND, )

)

Plaintiff, )

)

)

)

v. ) No. 19-cv-2855-SHM-tmp

)

SYSCO CORPORATION, )

)

Defendant. )

)

)

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant Sysco Corporation’s August

15, 2022 Motion for Summary Judgment (the “Motion”). (ECF No.

79.) Plaintiff Dwuan Hammond (“Hammond”) responded on November

21, 2022. (ECF No. 93.) Defendant replied on December 5, 2022.

(ECF No. 94.) For the following reasons, the Motion is GRANTED

and Hammond’s claims are DISMISSED.

I. Background

This is an employment discrimination case. Hammond alleges

racial discrimination. He claims Sysco violated Title VII of

the Civil Rights Act, 42 U.S.C. §§ 2000e, et seq., (“Title

VII”) and the Civil Rights Act of 1866, 42 U.S.C. § 1981, (“§

1981”) by failing to promote him, 1 by enrolling him in a

Performance Improvement Plan (“PIP”), by terminating him, and

by creating a hostile work environment. (ECF No. 18.)

Hammond began working at Sysco in 2000. (ECF No. 93-1 at ¶

3.) During his time at Sysco, he worked as an Internal Auditor,

Controller/Director of Finance of Sysco East Wisconsin

Operating Company, VP/CFO of Sysco Grand Rapids Operating

Company, VP/CFO of Memphis Operating Company, and Market

Director of Revenue Management for the Mideast Region. (Id.)

Hammond’s roles have mostly focused on finance.2 (Id. at ¶¶ 3-

4.) Hammond spent approximately 18 months working for a Vice

President of Operations to learn more about operations, and his

role as Market Director provided him with additional sales

experience. (Id. at ¶¶ 4, 8.)

In September 2015, Bill Mastrosimone (“Mastrosimone”)

selected Jason Calabrese (“Calabrese”) for the Market VP/CFO

1 Hammond brings failure to promote claims for the following

positions: President of Memphis Operating Company; Executive Vice

President in any market; Market Vice President/Chief Financial

Officer (“VP/CFO”), Northeast Operating Company; Market VP/CFO,

Mountain Central Operating Company; Market VP/CFO, South Operating

Company; Market VP/CFO, Pacific Operating Company; Market VP/CFO,

Midwest Operating Company; Director of Finance, Supply Chain; and

Director of Finance, Field Planning.

2 Sysco claims all of Hammond’s positions before 2016 were finance

positions. Hammond disputes that claim because he worked with the

Vice President operations for 18 months and was recommended for the

Executive Vice President program. Hammond does not specify when

these events occurred. Whether they were before or after 2016, they

are a small part of Hammond’s overall experience at Sysco.

Northeast position because Calabrese had significant finance

leadership experience. (Id. at ¶ 26.) Mastrosimone did not

select Hammond because Hammond had less leadership experience

and the experience he did have was in a smaller market. (Id. at

¶ 27.)

Sysco selected Roger Wilder for the Market VP/CFO Mountain

Central position because Wilder had almost 20 years of

financial leadership experience and had been Senior Director of

Financial Planning and Analysis in Sysco’s corporate office.

(Id. at ¶ 32.) Hammond never applied for the position. (Id. at

¶ 33.)

Greg Bertrand (“Bertrand”), then Sysco’s Senior Vice

President of U.S. Food Service Operations, selected Charles

“Cannon” Whitby (“Whitby”) to be President of Sysco’s Memphis

Operating Company in early 2017. (Id. at ¶ 9.) Bertrand looked

for candidates with substantial leadership experience in

operations and sales, profit and loss responsibility, and

large-team leadership. (Id. at ¶ 11.) Bertrand selected Whitby

because Whitby was performing well as an Executive Vice

President in one of Sysco’s largest markets and had previously

been the President at one of Sysco’s competitors. (Id. at ¶

12.) Hammond was not considered for the President role because

he lacked the experience Bertrand was looking for. (Id. at ¶

18.) Sysco looked for the same qualifications for the Executive

Vice President roles and did not choose Hammond because he

lacked those experiences. (Id. at ¶ 15.)

In August 2017, Sysco selected Jim Procuniar for the

Senior Director of Finance, Supply Chain role because he had 19

years of supply chain leadership experience. (Id. at ¶ 46.) In

September 2017, Sysco selected Joy Hellwig for the Director of

Finance, Field Planning role because she had substantial supply

chain experience and performed better than Hammond in the

interview. (Id. at ¶ 47.)

In October 2017, Sysco selected John Summers Miller for

the role of Market VP/CFO South because Miller had 15 years of

leadership experience, including four years as Vice President

of Finance-Merchandising for one of Sysco’s largest

competitors. (Id. at ¶¶ 35, 36.) Hammond never applied for the

position. (Id. at ¶ 37.)

In December 2018, Rich Johnston (“Johnston”) selected Doug

Walker (“Walker”) for the Market VP/CFO Pacific position

because he had 15 years of leadership experience and he had

worked with Johnston in the past. (Id. at ¶ 39.)

In January 2019, Greg Keyes (“Keyes”) selected Mark Lee

(“Lee”) for the Market VP/CFO Midwest position because Lee had

existing relationships in the market and was successfully

performing the role of CFO of Sysco’s Chicago operating

company. (Id. at ¶¶ 42, 43.)

In May 2019, Hammond was put on a performance improvement

plan because of concerns about his performance and leadership.3

(Id. at ¶¶ 57-59.) The plan did not affect Hammond’s pay or

responsibilities. (Id. at ¶ 60.) Sysco’s concerns were

documented in e-mails and meetings over at least 18 months.

(Id. at ¶¶ 52-56.) Specifically, Hammond had not developed

relationships with key people in his market.4 (Id. at ¶ 55.)

In response to the COVID-19 pandemic, Sysco consolidated

its leadership team resulting in the termination of

approximately 160 employees. (Id. at ¶ 62.) Hammond was

selected for termination in May 2020 because he ranked lowest

among the employees in his position.5 (Id. at ¶ 65.)

3 Hammond disputes this fact, but his response is unrelated to

Sysco’s claim. Paragraph 57 claims that David DeVane (“DeVane”),

President of the South Market, expressed frustrations about

Hammond’s performance and leadership. Hammond disputes this claim by

asserting that Sysco creates artificial requirements for promotion.

True or not, Hammond’s response does not call Sysco’s claim into

question. In Paragraph 58, Sysco claims that DeVane did not know

Hammond had complained about racial discrimination when DeVane

criticized Hammond’s leadership. Hammond disputes this fact but

provides no basis for his dispute.

4 Hammond disputes this fact, but his response is unrelated to

Sysco’s claim. Sysco claims that Ken Jaycox (“Jaycox”) addressed

leadership and performance shortcomings with Hammond, including

Hammond’s failure to develop relationships with key leadership

members. Hammond responds by stating that Becca Abbate, a member of

human resources, sent an e-mail discussing the need to move Hammond

out of the company. True or not, Hammond’s response does not bear on

the truth of Sysco’s claim.

5 Hammond disputes this fact, but he contends it should be stricken

because the witness was not disclosed during discovery. The witness

is listed in Sysco’s Second Supplemental Answers to Interrogatories.

(ECF No. 94-7 at 3.)

II. Jurisdiction

District courts have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of

the United States. 28 U.S.C. § 1331. Plaintiff brings claims

under Title VII and § 1981. (ECF No. 18 at ¶¶ 4-5.) The Court

has jurisdiction.

III. Standard of Review

Summary judgment is granted if there is no genuine issue

of material fact and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c). The movant has the

burden of establishing that there are no genuine issues of

material fact, which may be accomplished by demonstrating that

the nonmoving party lacks evidence to support an essential

element of its case. Peeples v. City of Detroit, 891 F.3d 622,

630 (6th Cir. 2018). There is a dispute about a material fact

if the evidence is such that a reasonable jury could return a

verdict for the nonmovant. E.E.O.C. v. Ford Motor Co., 782 F.3d

753, 760 (6th Cir. 2015)(en banc). Inferences must be drawn in

the light most favorable to the nonmovant. Bledsoe v. Tennessee

Valley Authority Board of Directors, 42 F.4th 568, 578 (6th

Cir. 2022).

The nonmoving party must point to concrete evidence on

which a reasonable juror could return a verdict in her favor; a

district court will not “wade through and search the entire

record for some specific facts that might support the nonmoving

party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108,

111 (6th Cir. 1989); accord Parker v. Winwood, 938 F.3d 833,

839 (6th Cir. 2019); Fed. R. Civ. P. 56(c)(3).

Although summary judgment must be used carefully, it “is

‘an integral part of the Federal Rules as a whole, which are

designed to secure the just, speedy, and inexpensive

determination of every action’ rather than a ‘disfavored

procedural shortcut.’” F.D.I.C. v. Jeff Miller Stables, 573

F.3d 289, 294 (6th Cir. 2009)(quoting Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986)).

Employment discrimination claims are evaluated under a

three-step burden-shifting framework. Newman v. Federal Exp.

Corp., 266 F.3d 401, 405 (6th Cir. 2001)(citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). A plaintiff

must first set forth a prima facie case of discrimination. Id.

The elements of a prima facie case differ based on the specific

type of discrimination alleged. If a prima facie case is made,

the burden then shifts to the employer to articulate a

nondiscriminatory reason for its actions. Id. If the employer

carries that burden, the plaintiff must prove by a

preponderance of the evidence that the reasons offered by the

employer were a pretext for discrimination. Id. (citing Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981)). The ultimate burden of persuasion remains always with

the plaintiff. Id.

IV. Analysis

A. Failure to Promote

A prima facie case of discrimination on a failure-to-

promote theory requires a plaintiff to show 1) he belongs to a

racial minority; 2) he applied and was qualified for a job or

promotion; 3) he was considered and, despite his

qualifications, rejected from the job; and 4) other similarly

qualified employees who are not members of the protected class

received promotions when he was denied a promotion. Sutherland

v. Michigan Dept. of Treasury, 344 F.3d 603, 614 (6th Cir.

2003). The burden of establishing a prima facie case is not

onerous. Burdine, 450 U.S. at 253.

If a prima facie case is made, the burden then shifts to

the employer to articulate a nondiscriminatory reason for its

actions. If the employer carries that burden, the plaintiff

must show that the employer’s reason was a pretext for

discrimination.

Typically, to establish pretext, the plaintiff must show

by a preponderance of the evidence that the defendant’s

nondiscriminatory reason 1) had no basis in fact, 2) did not

actually motivate the defendant’s conduct, or 3) was

insufficient to warrant the challenged conduct. Zambetti v.

Cuyahoga Cmty. Coll., 314 F.3d 249, 258 (6th Cir. 2002). The

plaintiff may also demonstrate pretext by offering evidence

that challenges the reasonableness of the employer’s decision.

White v. Baxter Healthcare Corp., 533 F.3d 381, 393 (6th Cir.

2008). If the fact finder can conclude that a reasonable

employer would have found the plaintiff to be significantly

better qualified for the job, but this employer did not, the

fact finder can conclude that a consideration such as

discrimination influenced the decision. Aka v. Washington Hosp.

Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998). A finding of

unreasonableness requires that the plaintiff was a plainly

superior candidate or, if the plaintiff was only as qualified

as the individual chosen, other probative evidence of

discrimination. Bartlett v. Gates, 421 Fed. App’x 485, 490-91

(6th Cir. 2010). In assessing qualifications, a plaintiff’s

subjective view of his qualifications relative to those of

other employees is insufficient to establish discrimination.

Douglas v. Int’l Auto. Components Grp. N. Am., Inc., 483 F.

App’x 178, 181 (6th Cir. 2012).

1. Claims as to All Positions

Hammond makes a series of claims that the Court construes

to apply to each of his failure-to-promote claims. The Court

analyzes them here and does not recount them for each position.

Hammond claims Sysco had a culture of discrimination. (ECF

No. 93 at 2-4.) As evidence, he provides his own statement that

Sysco has not had a person of color in a senior leadership

position in its fifty-year history. (Id. at 2.)

A claim that a general culture of discrimination prevented

a particular employee from receiving a promotion is a disparate

impact claim. See Hawkins v. Memphis Light Gas & Water, 520

Fed. App’x 316, 322 (6th Cir. 2013). To establish a prima facie

case of disparate impact, a plaintiff must present statistical

analysis about the number of qualified members of the protected

class who applied for the positions in question. Id. Because

Hammond has not provided that evidence, his disparate impact

argument does not support his discrimination claims.

Hammond claims that senior leadership wanted to find a way

to get rid of him. (ECF No. 93 at 2.) The e-mail Hammond uses

to support his claim states that a Senior Human Resources

Director wanted to discuss her recommendation of firing Hammond

based on concerns about his performance. (ECF No. 93-3, Ex. B-

4.) The plain text of the e-mail contradicts Hammond’s

characterization of it.

Hammond claims that he received “exceptional performance

feedback and was considered Significantly Above Target.” (ECF

No. 93 at 1.) Hammond cites a single review from 2014. (ECF No.

93-4, DeVane Deposition at 35:18-23.) He has received numerous

negative reviews since then.6 (ECF No. 93-1 at ¶¶ 52-59.)

Hammond’s evidence does not support his contention that he was

generally regarded as exceptionally qualified.

2. President of Sysco’s Operating Company

Although the burden of establishing a prima facie case is

low, a plaintiff fails to establish a prima facie case if he

lacked the experience required for the job. Cleveland v. S.

Disposal Waste Connections, 491 F. App’x 698, 703-04 (6th Cir.

2012). Hammond does not dispute that Bertrand, the

decisionmaker for the Operating Company President position,

wanted a candidate with substantial leadership experience in

sales or operations, profit and loss responsibility, and large

team leadership. (ECF No. 93-1 at ¶ 11.) Hammond does not

dispute that Bertrand believed Hammond lacked that experience

and was unqualified for the position. (Id. at ¶ 18.) There is

evidence Hammond was enrolled in an executive development

program and spent at least a year training with a vice

president of operations. (ECF No. 93, Ex. 3.) Although that

experience may have improved Hammond’s qualifications, they

6 Hammond disputes these facts, but his responses are unrelated to

Sysco’s claims. His responses to Paragraphs 57-59 are detailed in

Footnote 3. His response to Paragraph 55 is detailed in Footnote 4.

He disputes Paragraphs 53, 54, and 56, citing an e-mail in which

Jaycox purportedly praises Hammond’s abilities. The e-mail does not

praise Hammond, so it does not challenge the alleged fact. Hammond

does not dispute Paragraph 52.

were not the type of experience Bertrand said he was looking

for.

Even if Hammond could establish a prima facie case, Sysco

has articulated a legitimate, non-discriminatory reason for its

employment decision: Whitby, unlike Hammond, had the experience

Bertrand was looking for. (ECF No. 93-1 at ¶ 18.) Because Sysco

has articulated a legitimate reason not to promote Hammond, he

must show that the reason is a pretext for discrimination.

Newman, 266 F.3d at 405. In the context of a pretext analysis,

“evidence that a rejected applicant was as qualified or

marginally more qualified than the successful candidate is

insufficient, in and of itself, to raise a genuine issue of

fact.” Hawkins, 520 F. at 319-20. The burden is higher when a

management position is at issue. Id. at 320.

Hammond does not dispute that Whitby had been Vice

President of one of Sysco’s largest operating companies and the

President of one of Sysco’s competitors. (ECF No. 93-1 at ¶

12.) Hammond claims that he had more experience at Sysco

because most of Whitby’s experience was at another company.

(ECF No. 93 at 4.) Hammond also claims that Whitby’s experience

at a senior leadership level was minimal. (Id.) How Sysco

values experience at another company compared to in-house

experience is not for the Court to second-guess. See McQueen v.

Barr, 782 F. App’x 459, 463 (6th Cir. 2019) (explaining that

courts do not substitute their judgment for management’s when

comparing candidates’ qualifications). Nor is the amount of

senior leadership experience necessary for the role in

question. Even factoring in Hammond’s participation in the

development program and training with a vice president of

operations, Hammond cannot show that he was significantly more

qualified than Whitby.

Hammond cites an e-mail purportedly stating Hammond was

the most qualified person for the job and company data

comparing the performance of Hammond’s market to other markets

to support his claim that Sysco’s reasons for selecting Whitby

were a pretext for discrimination. (ECF No. 93-1 at ¶¶ 16, 17,

22, 23.)

The e-mail says, “Dwuan, you are clearly the best person

to calibrate and recommend the course of action. I’m fully

supportive and please enroll Trey [Kidd, South Market Vice

President, Field Deployment] and the rest of us as needed to

help.” (ECF No. 79-1 at 52.) The e-mail is part of a chain of

e-mails between Hammond and Jaycox. Hammond first asks Jaycox

to outline the contents of a conversation they had in person.

(Id. at 54.) Jaycox writes that they talked about concerns with

Hammond’s leadership engagement and how Hammond might improve

his leadership. (Id. at 53.) Hammond responds by asking if he

can try a different method of improving his leadership before

trying Jaycox’s suggestion. (Id.) Jaycox responds with the e-

mail quoted in full above.

Given the context of the conversation, Jaycox’s statement

is to the effect that Hammond is the best person to decide how

he can improve his leadership performance. It is not general

praise for Hammond or testimony to his qualifications for a

particular position. The e-mail does not support Hammond’s

claim that hiring Whitby based on his superior qualifications

was a pretext for discrimination.

Hammond presents evidence that the market in which he was

working outperformed other markets. (ECF No. 93-2, Ex. A-15.)

That evidence is a single week of data. (Id.) The extent to

which Hammond was responsible for that performance is also in

question. Sysco disputes that Hammond’s market was the best

performer. (ECF No. 94-1 at ¶ 22.)

At the summary judgment stage, evidence must be viewed in

the light most favorable to the nonmovant. Bledsoe, 42 F.4th at

578. Even viewing Hammond’s evidence in the light most

favorable to him, it would not be enough to establish pretext.

Even if the data represented a significant amount of time and

Hammond were primarily responsible for the good performance, he

would lack key experience that Whitby had. Hammond was not a

plainly superior candidate. Because he was at best as qualified

as Whitby, he would need to show other probative evidence of

discrimination to establish pretext. Bartlett, 421 Fed. Appx.

at 491. He has not.

Hammond states in his deposition that Bertrand and DeVane

expressed discriminatory animus towards him. (ECF No. 79-6,

Hammond Deposition at 60:10-62:11, 72:1-18, 75:11-77:6, 78:20-

79:23, 83:22-85:20.) Hammond’s claims are based on comments

made by Bertrand and Devane, such as asking Hammond to rate his

emotional intelligence or telling him not to use his hands

during presentations. (Id.) Ambiguous remarks that do not

directly invoke race are insufficient evidence of pretext. See,

e.g., Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1096 (6th

Cir. 1996).

Hammond cannot satisfy any of the grounds for establishing

pretext. His claim for failing to promote him to the President

position is DISMISSED.

3. Executive Vice President

Hammond does not dispute that Bertrand, the decisionmaker

for the Executive Vice President positions, wanted a candidate

with substantial leadership experience in sales or operations,

profit and loss responsibility, and large team leadership. (ECF

No. 93-1 at ¶ 15.) Hammond does not dispute that Bertrand

believed Hammond lacked that experience and was unqualified for

the position. (Id.) There is evidence Hammond was enrolled in

an executive development program and spent at least a year

training with a vice president of operations. (ECF No. 93, Ex.

3.) Although that experience may have improved Hammond’s

qualifications, they were not the type of experience Bertrand

said he was looking for. Hammond cannot establish a prima facie

case that he should have been promoted to the Executive Vice

President positions. His claims for failing to promote him to

the Executive Vice President positions are DISMISSED.

4. Market VP/CFO Northeast

Hammond can establish a prima facie case for failing to

promote him to the Market VP/CFO Northeast position. Sysco

claims it hired a more qualified candidate. (ECF No. 79 at 10-

11.) Specifically, Sysco claims that Mastrosimone, who was in

charge of deciding who to hire, decided that Calabrese, who was

selected, had more finance leadership experience than Hammond

and had experience in a larger market. (ECF No. 79-2 at ¶¶ 26-

27.) Hammond admits that Calabrese was selected because of the

qualifications Sysco cites. (ECF No. 93-1 at ¶ 26.)

Because Sysco has proffered a legitimate, non-

discriminatory reason for failing to promote him, Hammond must

offer evidence of pretext. Newman, 266 F.3d at 405. Hammond

again claims he should have been chosen because of an e-mail

purportedly showing he was the most qualified person for the

job and the performance of his market relative to other

markets. (ECF No. 93-1 at ¶¶ 27, 41.)

For the reasons discussed above, the e-mail does not

support Hammond’s claim. The market data, although relevant, is

not enough to outweigh the evidence that Calabrese had more

experience in the areas Sysco decided were relevant for the

position. As with the President position, the market data, at

best, create the possibility that Hammond and Calabrese were

similarly qualified. Because Hammond does not provide

additional probative evidence of discrimination, he cannot

establish a genuine dispute about pretext.

Hammond also claims Calabrese was selected because

Mastrosimone knew Calabrese’s father. (ECF No. 79-4, Ex. 1-D.)

Charges of nepotism are not evidence of discrimination under

Title VII. Betkerur, 78 F.3d at 1096.

Hammond’s arguments are insufficient to establish pretext

by a preponderance of the evidence. Hammond’s claim as to the

Market VP/CFO Northeast position is DISMISSED.

5. Market VP/CFO Mountain Central & Market VP/CFO South

Hammond admits he did not apply for the Market VP/CFO

Mountain Central or the Market VP/CFO South positions. (ECF No.

93-1 at ¶¶ 33, 37.) Because he did not apply, Hammond cannot

establish a prima facie case of discrimination.7 His claims are

DISMISSED.

6. Market VP/CFO Pacific

Hammond can establish a prima facie case for failing to

promote him to the Market VP/CFO Pacific position. Sysco claims

it chose a more qualified candidate. (ECF No. 79 at 10-11.)

Hammond admits that Walker was selected because of the

qualifications Sysco identified. (ECF No. 93-1 at ¶ 39.) Walker

had a senior leadership position in Sysco’s finance department,

had 15 years of finance leadership experience, and had

successfully worked with Johnston, who was in charge of filling

the position, in the past. (Id.) Despite Walker’s

qualifications, Hammond again claims he should have been chosen

because of the e-mail purportedly showing he was the most

qualified person for the position and the performance of his

market relative to other markets. (Id. at ¶¶ 27, 41.)

7 Hammond argues Sysco waived the opportunity to challenge his prima

facie case because Sysco did not provide reasons for its challenge.

(ECF No. 93 at 10-11.) Sysco challenged Hammond’s prima facie case

on the grounds that he admitted to not applying for some of the

positions for which he alleged discrimination. (ECF No. 79-1 at 12,

13.)

For the reasons discussed for the Market VP/CFO Northeast

position, the e-mail and market data are not sufficient to

establish pretext. Hammond’s discrimination claim as to the

Market VP/CFO Pacific position is DISMISSED.

7. Market VP/CFO Midwest

Hammond can establish a prima facie case for failing to

promote him to the Market VP/CFO Northeast position. Sysco

responds that it hired a more qualified candidate. (ECF No. 79

at 10-11.) Specifically, Sysco claims that Keyes, who made the

hiring decision, chose Lee because Lee was successfully

performing as a CFO and had strong relationships with key

individuals in the Midwest market. (ECF No. 79-1 at 14.) Sysco

claims Hammond’s relationships in the Midwest market were

weaker because he had not worked there in four years. (Id. at

14-15.)

To establish pretext, Hammond cites the same evidence he

used for the Market VP/CFO Northeast and Market VP/CFO Pacific

positions: the Jaycox e-mail and the allegedly superior

performance of Hammond’s market. (ECF No. 93-1 at ¶ 44.)

Hammond’s arguments are unavailing for the reasons discussed

above. His discrimination claim for failure to promote him to

the Market VP/CFO Midwest position is DISMISSED.

8. Director of Finance Positions

A prima facie case of discrimination requires the

plaintiff to show an adverse change in his conditions of

employment, such as reduced salary, a less distinguished title,

or significantly diminished responsibilities. Love v. Electric

Power Bd. of Chattanooga, EPB, 392 Fed. Appx. 405, 408 (6th

Cir. 2010). Failure to receive a lateral move is not enough.

Id. Hammond stated in his deposition that the Director of

Finance positions were a step down from his position at the

time. (ECF No. 79-6, Ex. 3, Hammond Deposition at 207:6-208:6.)

Hammond disputes saying that the positions were a step down,

claiming that the statement was made by a witness who was not

disclosed in discovery or the initial disclosures. (ECF No. 93-

1 at ¶ 48.) Because the statement was made by Hammond himself,

his objection is unavailing. Because the positions were a step

down, Hammond did not suffer an adverse change in his

employment by failing to obtain them. He has not established a

prima facie case.8 His claim is DISMISSED.

9. Reliance on Caselaw

Hammond claims his failure-to-promote claims should

survive summary judgment based on Sixth Circuit precedent. (ECF

8 As discussed above, Hammond’s claim that Sysco waived the

opportunity to challenge his prima facie case is incorrect. (ECF No.

79-1 at 16.)

No. 93 at 15-18 (citing White, 533 F.3d at 384, 392; Risch v.

Royal Oak Police Dept., 581 F.3d 383, 387-88 (6th Cir. 2009).)

Neither case controls the outcome here.

In Risch, the Sixth Circuit reversed the district court’s

grant of summary judgment because the plaintiff was arguably

more qualified than those selected for the job and there was a

pattern of discriminatory remarks within the company. Risch,

581 F.3d at 391-94. That is not this case. The claim that

Hammond was more qualified than those selected is weaker than

the claim that Risch was more qualified than those promoted

instead of her. Risch had higher performance scores in certain

categories than those selected. Id. at 392. Here, Hammond

lacked key experience in many of the areas Sysco was looking

for. More importantly, although Hammond alleges that Sysco has

a lack of diversity amongst its senior leadership, the record

of derogatory statements made to women in Risch is not present

in this case. Because the evidence here is weaker than in

Risch, Risch is not on point.

In White, the Sixth Circuit found a genuine dispute about

pretext based on two factors. 533 F.3d at 394-95. First, the

plaintiff arguably had superior qualifications than the person

chosen for the job because the plaintiff had experience the

chosen candidate did not have. Id. at 394. Second, the

defendant’s stated reasons for failing to select the plaintiff

relied largely on subjective assessments from the plaintiff’s

interview, which the Sixth Circuit concluded were subjective

and could be intended to mask the discrimination. Id. at 394-

95. Those factors are not present here. Sysco applied more

objective criteria: leadership experience in sales or

operations, profit and loss responsibility, and large team

leadership. Hammond’s experience was primarily in finance. (ECF

No. 93-1 at ¶¶ 4, 11.) He had only recently started to gain

experience in operations and sales. (Id. at ¶ 11.) Hammond

lacked the experience the people selected had. Sysco’s stated

reasons include undisputed, objective facts, rather than

subjective evaluations. White is not on point.

B. Enrollment in Performance Improvement Plan

Hammond claims that he filed a discrimination claim in

March 2019 and, in retaliation, was placed on a PIP in May

2019. (ECF No. 93 at 21.) In the Sixth Circuit, the evidentiary

weight given to the temporal proximity between the protected

activity and the alleged retaliatory event depends on the time

between the two events:

Where an adverse employment action occurs very close

in time after an employer learns of a protected

activity, such temporal proximity between the events

is significant enough to constitute evidence of a

causal connection.... But where some time elapses

between when the employer learns of a protected

activity and the subsequent adverse employment

action, the employee must couple temporal proximity

with other evidence of retaliatory conduct to

establish causality.

Robinson v. Quicken Loans, LLC, No. 21-1392, 2022 WL 4234072,

at *7 (6th Cir. Sept. 14, 2022)(citing Mickey v. Zeidler Tool &

Die Co., 516 F.3d 516, 525 (6th Cir. 2008)). The Sixth Circuit

has not clearly decided what amount of time is “very close,”

but the cases discussed in Mickey address shorter intervals

than the two months that elapsed here. Mickey, 516 F.3d at 524

(citing cases that found temporal proximity alone was

sufficient where 13 days elapsed, less than three weeks

elapsed, and zero days elapsed between the protected activity

and the retaliatory conduct). The Mickey Court also explained

that the reason temporal proximity alone is sufficient in some

cases is that, where there is immediate retaliation, there is

little chance the plaintiff will have other evidence. Id. at

525.

This is not a case where temporal proximity alone is

sufficient. The two months that elapsed between the protected

activity and the alleged retaliation were sufficient for

Hammond to have other evidence. He must show evidence in

addition to temporal proximity.

Hammond cites the temporal proximity of the PIP to the e-

mail and that meetings about the PIP were cancelled and never

rescheduled as evidence that the PIP was retaliatory. (ECF No.

93 at 21 (citing Ex. A, Hammond Deposition at 150:2-14).)

Hammond’s claim that meetings about the PIP were cancelled and

never rescheduled is contradicted by his deposition testimony

that, although some meetings were cancelled, Trey Kidd attended

about half of the meetings to discuss Hammond’s performance

issues and how to address them. (ECF No. 94-3 at 11, Hammond

Deposition at 122:1-16.)

The only remaining support for Hammond’s claim is the

temporal proximity between the e-mail and the PIP. Hammond does

not dispute that his retaliation claim is based solely on the

timing of the PIP relative to his e-mail. (ECF No. 93-1 at ¶

61.) Because temporal proximity is insufficient to establish a

causal connection in this case, Hammond’s retaliation claim is

DISMISSED.

C. Termination

Hammond can establish a prima facie case that his

termination was discriminatory. Sysco responds that Hammond was

terminated as part of a corporate reorganization initiated in

response to the COVID-19 pandemic that resulted in the

dismissal of approximately 160 employees. (ECF No. 79 at 19.)

Because Sysco has articulated a nondiscriminatory reason for

terminating Hammond, Hammond must establish that Sysco’s

alleged reason is a pretext for discrimination. Newman, 266

F.3d at 405.

Hammond disputes Sysco’s explanation because 1) he did not

receive a negative performance review before the negative

review he received in 2020, 2) his termination occurred shortly

after he sent an e-mail responding to a letter from Sysco’s CEO

about the murder of George Floyd (the “Floyd e-mail”), and 3)

at the time of his termination, his market was performing

better than any of Sysco’s other markets. (ECF No. 93 at 22.)

Hammond’s arguments do not satisfy his burden to show

pretext, which requires that the employer’s given reason had no

basis in fact, did not actually motivate the defendant’s

conduct, was insufficient to motivate the challenged conduct,

or was unreasonable. Zambetti, 314 F.3d at 258; White, 533 F.3d

at 393.

Hammond does not effectively dispute the facts underlying

Sysco’s explanation for terminating him: that Sysco conducted a

corporate reorganization in response to the COVID-19 pandemic

that required terminating approximately 160 employees and that

Hammond was selected for termination because he ranked lowest

among employees with his position.9 (ECF No. 93-1 at ¶¶ 62-65.)

Hammond has not shown that a reasonable jury could find

that Sysco’s stated reasons did not actually motivate its

decision. That requires a showing that the illegal reason is

more likely than the proffered reason. Joostberns v. United

Parcel Services, Inc., 166 Fed. App’x 783, 790-91 (6th Cir.

2006). Despite his claims to the contrary, Hammond received

negative performance reviews well before he sent the Floyd e-

mail. (ECF No. 93-1 at ¶¶ 62-69.) Sysco decided to terminate

Hammond in May 2020. (ECF No. 79-2 at ¶ 65.) Hammond did not

send the e-mail until June 8, 2020. The e-mail could not have

affected Sysco’s decision. (Id. at ¶ 69.)

Hammond’s strongest evidence is the report showing that

the South Market was doing better than other markets when

Hammond was terminated. (ECF No. 93-2, Ex. A-15.) Sysco

challenges Hammond’s evidence on three grounds: that Hammond

was not solely or primarily responsible for the South Market’s

9 Hammond lists these facts as disputed, but his responses do not

specifically dispute the facts stated. In response to the fact that

Sysco conducted a corporate reorganization, Hammond says his market

was performing better than other markets. True or not, that does not

call into question the fact of the reorganization. Hammond disputes

the fact that he was ranked lowest among employees with his job

position because the source of that information, Kelly Melvin

(“Melvin”), was not disclosed in discovery or the initial

disclosures. Melvin was disclosed to Hammond. (See ECF No. 94-7, Ex.

6.)

performance, that the data Hammond submits is for a single week

and does not reflect long-term performance, and that the

referenced financial information was not relevant to Sysco’s

termination decision. (ECF No. 94-1 at ¶ 22.) Sysco’s arguments

are well-taken, but because this is a motion for summary

judgment, the Court must view the evidence in the light most

favorable to the nonmovant. Therefore, the Court infers that

the data represent a meaningful amount of time; Hammond, as

Market Director of Revenue Management, was primarily

responsible for improving profit margins, (ECF No. 93-1 at ¶

3), and contributed meaningfully to that performance; and the

performance was relevant to the termination decision.

Even considering these inferences, a reasonable jury could

not find by a preponderance of the evidence that Sysco’s stated

reasons were a pretext for discrimination against Hammond. That

Hammond’s market performed well does not show that Sysco’s need

to cut employees in response to the pandemic was pretextual.

Hammond’s evidence does not show that Hammond was unfairly

chosen as one of the people to be terminated. Performance was

one among several factors considered in the termination

decisions. (ECF No. 93-1 at ¶ 65.) Even assuming Hammond was

primarily responsible for the South Market’s performance and

that performance was for a meaningful amount of time, his

performance reviews demonstrated concerns about his leadership

and results, which were identified as factors in the

termination decision.10 (ECF No. 93-1 at ¶¶ 55-58, 65.) For the

same reasons, a reasonable jury could not find that Sysco’s

reasons for terminating Hammond were unreasonable.

Hammond has not shown that Sysco’s reasons for termination

were insufficient. A reduction in force and a poor performance

review are sufficient to support termination. Lefevers v. GAF

Fiberglass Corp., 667 F.3d 721, 726 (6th Cir. 2012). As

discussed above, Hammond does not dispute that Sysco underwent

a reduction in force or that he received a negative review.

Because Hammond fails to allege facts that could establish

that Sysco’s explanation for termination was a pretext, his

discrimination claim based on termination is DISMISSED.

D. Hostile Work Environment

“A hostile work environment occurs ‘[w]hen the workplace

is permeated with discriminatory intimidation, ridicule, and

insult that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive

working environment.’” Bowman v. Shawnee State University, 220

F.3d 456, 463 (6th Cir. 2000)(citing Harris v. Forklift Sys.,

10 Hammond disputes these claims, but his response is unresponsive

for the reasons discussed in Footnote 6.

Inc., 510 U.S. 17, 21 (1993)). Hammond contends generally that

he experienced hostility and disparaging remarks from co-

workers and supervisors after he sent the Floyd e-mail, but he

cites no evidence to support his contention. (ECF No. 93 at

23.) He does not dispute that his hostile work environment

claim is based entirely on the discrete acts alleged in his

Complaint. (ECF No. 93-1 at ¶ 70.) Because Hammond’s only

evidence is the adverse employment decisions and because he has

not established that those decisions were discriminatory, his

hostile-work-environment claim is DISMISSED.

V. Conclusion

For the foregoing reasons, the Motion for Summary

Judgement is GRANTED on all of Hammond’s claims. Hammond’s

claims are DISMISSED.

So ordered this 31st day of March, 2023.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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