Reed v. Procter & Gamble Manufacturing Co.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0129n.06

Case No. 13-5797

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Feb 13, 2014

CHARLES E. REED, ) DEBORAH S. HUNT, Clerk

)

Plaintiff-Appellant, )

) ON APPEAL FROM THE

v. ) UNITED STATES DISTRICT

) COURT FOR THE WESTERN

PROCTER & GAMBLE MANUFACTURING ) DISTRICT OF TENNESSEE

COMPANY, )

)

Defendant-Appellee. )

) OPINION

BEFORE: COLE and GRIFFIN, Circuit Judges; PEARSON, District Judge.*

COLE, Circuit Judge. Charles Reed, a longtime employee at Procter & Gamble’s

Pringles plant in Tennessee, appeals the district court’s grant of summary judgment on Reed’s

employment discrimination claims under Title VII, 42 U.S.C. § 2000e et seq., and the Tennessee

Human Rights Act, Tenn. Code. Ann. § 4–21–401 et seq. Specifically, Reed, who is African-

American, alleges that he was subject to disparate treatment on the basis of his race, that he was

removed from a particular position at the plant in retaliation for reporting discrimination, and

that the plant fostered a hostile work environment. We affirm the district court’s grant of

summary judgment on all of Reed’s claims.

*

The Honorable Benita Y. Pearson, United States District Judge for the Northern District of

Ohio, sitting by designation.

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Reed v. Procter & Gamble Mfg., Inc.

I. BACKGROUND

A. Factual Background

Reed began working for Pringles as a Technician, Level 1 (“T1”) in April of 1996. He

remained employed with Pringles until Procter and Gamble (“P&G”) sold the plant in June of

2012. During his employment, Reed was twice promoted: first, to Technician Level 2 in 1997,

and again to Technician Level 3 in 2003.

The structure of the Pringles plant necessitates some explanation. As P&G describes it,

employees participated in a “high performance work system” that required them to “develop a

broad range of skills and knowledge.” Most Pringles employees did not stay in one position

within the plant permanently; instead, employees periodically rotated through different

departments. However, employees in some positions—labeled “extended roles”—did not rotate

regularly. Extended role positions typically required more training than regular positions,

involved exposure to confidential information, or demanded knowledge of environmental or

legal compliance requirements.

Reed’s allegations of discrimination stem from three primary sources: (1) management’s

decision to remove him from an extended role position on or about October 24, 2008; (2) his

inability to attain a promotion to Technician Level 4 (“T4”) status, and management’s alleged

failure to offer him the coaching necessary for promotion; and (3) a variety of incidents in the

workplace that, according to Reed, indicate the existence of a hostile work environment.

Additionally, Reed alleges that he engaged in two forms of protected activity that prompted

P&G’s management to retaliate against him by taking the above actions. First, he assisted a co-

worker, Reginald Charles, in making internal complaints of racial discrimination at the plant, and

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second, Reed also personally complained of discriminatory treatment, by sending a letter to

Kristen King, an employee in the human resources department, on October 5, 2008, and by

speaking with King and Frank Napadek, Site Human Resources Manager, sometime thereafter.

However, P&G disputes Reed’s assertion that the October 5 letter made any clear allegations of

racially discriminatory treatment. Reed further claims that he spoke with Brandy Lennon,

another employee in the plant’s human resources department, about racial discrimination prior to

his conversations with King and Napadek.

Turning first to the change in Reed’s position, in October of 2008, Jeffrey Bruns, the Site

Quality Manager, decided to eliminate two out of four particular extended role positions. Bruns

reached this conclusion after consultation with several other members of management, including

Stuart Massey, a T5 and Team Leader of a department then including Reed. All four of the

individuals in the positions eligible for elimination were African-American. Reed and another

technician were chosen for removal from extended roles, although Reed actually stayed in his

extended role until January of 2010, over a year later.

Reed alleges that management’s decision to eliminate his extended role position was

retaliatory. P&G claims that it made a legitimate business decision after Napadek determined

that “the regular rotation schedule . . . had not been managed closely,” resulting in an excessive

number of extended roles. Reed responds that the number of extended role positions, thirty-five,

was not excessive given the size of the plant and its policy of placing up to 5% of technicians in

extended roles. It is undisputed that Napadek played no role in determining which employees

would be affected. Additionally, Reed agrees with P&G’s statement that “there was already

‘talk’” of reducing the number of extended roles as of October 5, 2008, the date of Reed’s letter

to King.

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Next, Reed alleges that he was denied a promotion from T3 to T4 status. The parties

generally agree on the processes by which employees could become eligible for promotion. In

Reed’s department, technicians would determine whether they wished to pursue a promotion and

would then consult with their Team Leader, Massey, to develop a “work plan” aimed at meeting

the requirements necessary for promotion. Ultimately, Bruns would decide whether a particular

employee would be promoted. As can be gathered from the record, once an employee decided to

pursue a promotion, he or she would then attend so-called “pre-gap” or “gap” meetings with

management to discuss the employee’s qualifications for promotion. From 2005 to 2009,

Massey approved Reed’s work plans, which included attaining T4 status as a goal. However,

Reed maintains that Massey assisted employees with their promotional goals on a discriminatory

basis: he alleges that Massey approached one White employee to ask if he wanted to attain T4

status, rather than waiting for the employee to come to him, and that he delayed Reed’s “T4 pre-

gap assessment” while expediting those of White employees.

Reed complained of inequities in the promotion process in his letter to King, dated

October 5, 2008. In particular, Reed stated, “I can not [sic] seem to get my coach or manager to

support my promotional initiative,” and he posited that “some issues” pertaining to his

qualifications “have been fabricated for the purpose of being discriminatory.” The letter also

named three other T3 technicians seeking T4 status and alleged that management was not

following its internal procedures but “predetermin[ing]” the individuals to be selected for

promotion. Reed does not dispute that one of these three individuals, who is White, did not

achieve the T4 promotion.

In response to the letter, Napadek arranged a pre-gap meeting for Reed, held on

November 6, 2008. Napadek attended, along with Reed, Massey, and Lennon. Before the

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meeting, Reed provided Massey with an “action plan” that Reed used to evaluate his own

progress toward fulfilling requirements for T4 status. Reed admitted in his deposition that he

had not considered himself to have completed all the requirements and that he rated his progress

as “poor versus [the] plan” in several areas, which Reed described as meaning that the

requirement in question was “not at the completion stage.”

The parties agree that Reed’s pre-gap meeting lasted two hours, that the participants

reviewed about half of the requirements for T4 promotion, and that Bruns concluded that Reed

did not fulfill any of the requirements discussed in the meeting. Reed, however, alleges that the

other attendees were dismissive and hostile toward him. Napadek and Reed also held a follow-

up meeting on November 13, at which time Reed complained that his colleagues were “treating

him differently” and that he believed his progress toward T4 status was stalled. He further

communicated that he “felt he was treated differently because of his race.”

The parties also agree that Reed never met all of the requirements necessary for T4

promotion, and that a White woman who was promoted did meet all the requirements. Reed

claims, however, that he met “over 75% of the requirements,” which should have “trigger[ed] a

gap assessment” that Massey and Bruns avoided holding until Reed made his complaints to King

and Napadek. He further alleges that the deficiencies discussed in the meeting were fabricated or

exaggerated and that White employees had prior opportunities to meet with management

regarding their promotional aspirations, whereas he did not.

Reed also makes allegations of a hostile work environment. In particular, he claims that

he received a “threaten[ing]” email and a “hostile” phone call from Massey, that Massey created

a noose from a telephone cord when Reed was in Massey’s presence but unable to see the

gesture, and that Reed heard racial slurs in the workplace, was excluded from lunches with

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colleagues, was made “the victim of a prank where [his] head and face [were] splashed with an

unknown solution,” and was given the cold shoulder by his managers. As discussed below, Reed

furnishes few details about these events. Reed spoke with Bruns about the phone call and email,

but did not clearly communicate to Bruns that he believed Massey was motivated by racial

animus. Reed also does not dispute that he did not bring up any concerns about racial

discrimination in the promotion process with Bruns directly.

B. Procedural History

Reed filed an EEOC charge against P&G in March of 2009 and subsequently received a

right-to-sue letter on July 30, 2010. See 42 U.S.C. § 2000e–5(e) & (f). He timely filed suit in

district court. P&G moved for summary judgment under Federal Rule of Civil Procedure 56,

and the court found deficiencies in Reed’s initial response in opposition. In particular, Reed had

neglected to refer to specific portions of his deposition testimony when disputing facts set forth

by P&G, had failed to place his deposition transcript in the record, and had not used his affidavit

to establish facts based on personal knowledge, but to cite to other portions of the record, again

without pinpoint citations. The court ordered Reed to submit an amended and properly

supported response to P&G’s statement of undisputed facts, accompanied by all relevant

evidence indicating the existence of a genuine issue of fact, in lieu of his deficient filings. The

court also denied Reed’s request to file a sur-reply. Reed submitted amended filings, but again

neglected to attach relevant portions of his deposition transcript, causing the court to issue an

order to show cause as to why Reed’s counsel should not be held in contempt for failure to

comply. Reed timely responded with the transcripts.

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Additionally, Reed filed a motion for reconsideration of the court’s decision to disregard

Reed’s original affidavit. After holding a hearing on this matter, the court allowed Reed to file

an amended affidavit and a second amended response to P&G’s statement of disputed facts.

In deciding P&G’s motion for summary judgment, the district court confined its analysis

of the record to the following items: P&G’s statement of undisputed facts and its supporting

exhibits (R.41), Reed’s second amended response to P&G’s statement of undisputed facts and

his supporting exhibits, including his corrected summary judgment affidavit (R.70), and “any

other portion of the record cited by [Reed] in his second amended response and not previously

stricken by the [c]ourt.”

In February of 2013, the court granted in part P&G’s motion for summary judgment,

holding that Reed had failed to show the existence of a material dispute of fact on the following

theories: (1) direct evidence of disparate treatment, (2) circumstantial evidence of disparate

treatment based on failure to train and failure to promote, (3) retaliation, and (4) hostile work

environment. The court did not, however, grant summary judgment on Reed’s theory of mixed-

motive failure to promote; instead, it ordered additional briefing on this issue. The parties

complied, and the court then dismissed Reed’s remaining claim in May of 2013.

II. ANALYSIS

Reed challenges the district court’s grant of summary judgment on all his claims for

failure to promote, retaliation, and hostile work environment, as well as the court’s decision to

strike his original affidavit and its refusal to consider certain evidence that Reed submitted on the

basis that it could not have been admissible at trial.

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A. Summary Judgment: Standard of Review

We review the district court’s grant of summary judgment de novo. White Consol.

Indus., Inc. v. Westinghouse Elec. Corp., 179 F.3d 403, 407 (6th Cir. 1999). Summary judgment

is appropriate only if the moving party “shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To defeat

the motion, the non-moving party must then “go beyond the pleadings and by her own affidavits,

or by the depositions, answers to interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986) (internal quotation marks omitted). The “mere existence of a scintilla of evidence” will

not suffice; rather, the party opposing summary judgment must put forth “evidence on which the

jury could reasonably find” in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986). A moving party can succeed by demonstrating “that there is an absence of evidence to

support the non-moving party’s case.” Celotex, 477 U.S. at 325. We construe the evidence “in

the light most favorable” to the non-moving party. White Consol. Inds., 179 F.3d at 407.

B. The Extent of the Record

We review a district court’s evidentiary rulings—including its refusal to consider part or

all of an affidavit submitted in opposition to summary judgment—for abuse of discretion. See

Briggs v. Potter, 463 F.3d 507, 511 (6th Cir. 2006); see also Flagg v. City of Detroit, 715 F.3d

165, 175 (6th Cir. 2013). “A district court abuses its discretion when it relies on erroneous

findings of fact, applies the wrong legal standard, misapplies the correct legal standard when

reaching a conclusion, or makes a clear error of judgment.” Briggs, 463 F.3d at 511 (citation

omitted). Reed challenges the district court’s striking of his original affidavit, (R.44-4), from the

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record, as well as its refusal to consider, first, deposition testimony in which Reed recounts a

conversation with Brandy Lennon, and second, his submission of an internal P&G memorandum.

Looking first to Reed’s original affidavit, the court noted that it failed to conform with

Federal Rule of Civil Procedure 56(c)(4), which requires an affidavit to be “made on personal

knowledge, set out facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.” Instead of following these guidelines,

Reed’s original affidavit read like an additional response to P&G’s statement of undisputed facts.

It also frequently cited to Reed’s deposition testimony without providing page or line numbers,

and without supplying the deposition transcript. Furthermore, it made conclusory assertions not

based on personal knowledge, such as stating that management’s rationale for reducing the

number of extended roles was “pretext to mask the true retaliatory motive,” and that “Frank

Napadek did not thoroughly investigate” Reed’s complaints. We find that the court did not

abuse its discretion in striking from the record an affidavit that partially neglected to conform to

Rule 56(c)(4) and that functionally duplicated another filing—Reed’s response to P&G’s

statement of undisputed facts—where the court gave Reed the opportunity to file a new affidavit.

Cf. Briggs, 463 F.3d at 511–14 (no abuse of discretion in striking portion of affidavit making

“argumentative interpretation of statements of fact”); Plott v. General Motors Corp., 71 F.3d

1190, 1196–97 (6th Cir. 1995) (applying abuse of discretion standard to appellant’s claim that

the court granted summary judgment before discovery was complete, and considering whether

appellant was prejudiced by his inability to obtain desired discovery). Significantly, Reed does

not demonstrate that he was in any way prejudiced by the court’s decision.

As for Reed’s other two evidentiary claims, we likewise find no abuse of discretion. The

district court refused to consider Reed’s submission of an internal P&G memorandum from 2000

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on the basis that it was not properly authenticated. Furthermore, it disregarded Reed’s testimony

that Lennon had reported his concerns about racial discrimination to Massey on the grounds that

Lennon’s statements to Reed were inadmissible hearsay. While “[t]he submissions”—such as

affidavits—“by a party opposing a motion for summary judgment need not themselves be in a

form that is admissible at trial,” that party must “lay[] out enough evidence that will be

admissible at trial to demonstrate that a genuine issue on a material fact exists.” Alexander v.

CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (emphasis in original) (internal quotation marks

and citation omitted); see also Fed. R. Civ. P. 56(c)(1)(A) & (4) (requiring an affidavit or

declaration to “set out facts that would be admissible in evidence”). Therefore, hearsay evidence

not subject to any exception “must be disregarded.” Alexander, 576 F.3d at 558 (internal

quotation marks and citation omitted). For the same reason, unauthenticated documents do not

suffice. Id. at 558–59. Reed failed to authenticate the internal memorandum and neglected to

obtain an affidavit or any other statement from Lennon; accordingly, we cannot say that the

district court erred in declining to consider this evidence. Thus, we agree with the district court

as to the scope of the record, and we review the same evidence considered below.

C. Race Discrimination

In district court, Reed alleged that he was subjected to three adverse employment actions

indicative of disparate treatment on the basis of his race: first, his removal from an extended role

position; second, his failure to be promoted to T4 status; and third, his denial of the training or

coaching necessary for promotion. Because Reed’s brief contains no discussion of his removal

from his extended role position in the context of disparate treatment, we do not address this

claim. See Chandler v. Vulcan Materials, Inc., 81 F. App’x 538, 542 (6th Cir. 2003) (claims

waived if not addressed on appeal). In order to survive summary judgment, Reed must present

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either direct or circumstantial evidence that these actions were motivated, in whole or in part, by

racial animus.

We begin by noting that the record lacks evidence of direct discrimination. See Johnson

v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003) (“[D]irect evidence is that evidence which, if

believed, requires the conclusion that unlawful discrimination was at least a motivating factor in

the employer’s actions” (citation omitted)); see also Nguyen v. City of Cleveland, 229 F.3d 559,

563 (6th Cir. 2000) (referring to “a facially discriminatory employment policy or a corporate

decision maker’s express statement of a desire to remove employees in the protected group” as

“direct evidence of discriminatory intent”). Thus, we assess Reed’s allegations using the

McDonnell Douglas approach: if Reed can establish a prima facie case of racial discrimination,

the burden shifts to P&G to offer a legitimate, non-discriminatory rationale for its employment

actions. Reed can then prevail by showing that the stated rationale is pretextual. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973); Johnson, 319 F.3d at 865–66. To put

forth a prima facie case, Reed must show that “(1) he was a member of a protected class; (2) that

he suffered an adverse employment action; (3) that he was qualified for the position; and (4) that

a person outside the protected class was treated more favorably than him.” Braithwaite v.

Timken Co., 258 F.3d 488, 493 (6th Cir. 2001); see also Clay v. United Parcel Serv., Inc., 501

F.3d 695, 703 (6th Cir. 2007).

Alternatively, Reed can avoid summary judgment by showing that race “was a

motivating factor for the defendant’s adverse employment action.” Griffin v. Finkbeiner, 689

F.3d 584, 595 (6th Cir. 2012) (emphasis in original); see also White v. Baxter Healthcare Corp.,

533 F.3d 381, 400 (6th Cir. 2008) (holding “that the McDonnell Douglas/Burdine burden-

shifting framework does not apply to the summary judgment analysis of Title VII mixed-motive

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claims” (emphasis in original)). Evidence establishing a mixed motive may be circumstantial.

See Griffin, 689 F.3d at 595.

In addition to his federal claims under Title VII, Reed alleges violations of the Tennessee

Human Rights Act (“THRA”), which forbids “discrimina[tion] against an individual with respect

to compensation, terms, conditions or privileges of employment because of such individual’s

race.” Tenn. Code Ann. § 4–21–401(a)(1). Although the degree to which the THRA and Title

VII are coextensive is a subject of some debate, see Bobo v. United Parcel Serv., Inc., 665 F.3d

741, 757–58 (6th Cir. 2012), we need not consider this issue because the district court granted

summary judgment using Title VII’s legal framework, and Reed does not argue on appeal that

Tennessee law compels a different analysis. See Chandler, 81 F. App’x at 542.

1. Failure to Promote

To establish a prima facie case of failure to promote within the burden-shifting

framework, Reed must demonstrate that he applied for and was qualified for the promotion to T4

status and that individuals with similar qualifications outside of his protected class were

promoted, whereas he was not. See Grizell v. City of Columbus Div. of Police, 461 F.3d 711,

719 (6th Cir. 2006). The denial of a promotion is unquestionably an adverse employment action.

Nguyen, 229 F.3d at 562. However, Reed is unable to make out a prima facie case because he

has not demonstrated that he was qualified for the promotion. Rather, Reed admits that he met

“over 75%” of the requirements. Additionally, in the self-evaluation he conducted prior to his

pre-gap meeting, Reed noted that he was missing some of the criteria necessary to make him

eligible for promotion. Reed urges us to consider declarations from two of his colleagues, both

stating that they believed Reed was qualified for promotion. But these statements do not counter

the evidence that neither Reed nor his supervisors believed that Reed had met all of the

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requirements for promotion at the time of their pre-gap meeting. Nor does Reed dispute P&G’s

statement that he did not subsequently update his list of requirements or request another meeting

to reconsider his candidacy.

We note that Reed could establish a prima facie case of failure to promote

notwithstanding his missing qualifications. In order to do so, he would have to put forth

evidence demonstrating that employees outside of his protected class were promoted even

though they, too, did not fulfill all the requirements. See White v. Columbus Metro. Housing

Auth., 429 F.3d 232, 241–43 (6th Cir. 2005). But he has not argued that this was the case.

Turning to a mixed-motive analysis, the record does not indicate that Bruns—who had

the authority to promote Reed to T4—declined to promote Reed in whole or in part because of

his race. See White, 533 F.3d at 404. The record contains no evidence indicating that Bruns

harbored animus against African-Americans. See id. Reed does identify instances suggesting

that some other employees at the plant felt and expressed such animus, but he does not identify

facts to indicate that these employees influenced Bruns. See id.; see also Cobbins v. Tenn. Dep’t

of Transp., 566 F.3d 582, 587 n.5 (6th Cir. 2009) (discussing the “cat’s paw” theory of disparate

treatment). Furthermore, although the declaration of Reginald Charles attests that he “personally

witnessed racial discrimination” and heard “racial slurs by individuals in leadership positions,”

these general statements shed no light on Bruns’s motivations, or, for that matter, the motivations

of any other individuals. See Griffin, 689 F.3d at 595 (“[R]acially insensitive statements . . . are

sufficient evidence of racial animus only if they have some connection to” the adverse

employment action.).

Although Reed does not dispute that Bruns ultimately decided whether an employee

would be promoted, Massey also played a role in Reed’s efforts to attain a promotion. But

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because Massey did not have the authority to promote Reed and was instead responsible for

assisting his efforts to be promoted, Massey’s involvement is more appropriately considered

within the context of Reed’s failure-to-train allegations. We affirm the district court’s grant of

summary judgment on Reed’s claim of failure to promote.

2. Failure to Train

In the district court, Reed alleged that he was denied training or coaching opportunities,

necessary to attain T4 status, that two particular White employees were granted. The district

court held that Reed’s inability to receive training could not withstand summary judgment

because it was not an adverse employment action. In doing so, the court erred. This circuit has

concluded that “a deprivation of increased compensation as the result of a failure to train

constitutes an adverse employment action.” Clay, 501 F.3d at 710 (noting that delaying training

opportunities may constitute an adverse employment action); see also Vaughn v. Louisville

Water Co., 302 F. App’x 337, 345 (6th Cir. 2008) (finding that change in job title, which made

employee ineligible to attain certain training sessions, was not adverse employment action, as

employee “failed to present any evidence that she was passed up for promotions because of her

inability to attend the . . . training” (emphasis added)).

Here, the record indicates that T4 technicians were more highly compensated than T3s,

and the parties agree that, to be promoted, an employee needed the support of his or her

supervisors. The record also contains a 2006 performance evaluation, signed by Reed and

Massey, indicating that Reed could likely “attain T4 [status] within the next 12 months with

coaching and support from the lab.” The law and the facts indicate that Reed’s failure-to-

promote claim should not have been dismissed on the grounds that he did not suffer an adverse

employment action.

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However, we affirm the district court’s grant of summary judgment because Reed has

neglected to present his failure-to-train claim to this court on appeal. This claim is not named in

Reed’s statement of issues presented for review, see Fed. R. App. P. 28(a)(5), nor is it addressed

in any depth in the argument sections of his brief. Rather, Reed’s brief notes only that “[t]he

failure to train claim was tied into the failure to promote claim” and states, without further

elaboration, that Reed’s “deposition testimony and declaration” show that “he was not trained

properly as Caucasians.” Reed’s brief refers to some facts pertinent to a failure-to-train claim

but engages in no legal analysis of either the burden-shifting or mixed-motive framework.

Therefore, Reed has waived this issue. See Popovich v. Cuyhoga Cnty Court of Common Pleas,

276 F.3d 808, 823 (6th Cir. 2002) (en banc) (“Issues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived. It is not

sufficient for a party to mention a possible argument in the most skeletal way, leaving the court

to put flesh on its bones.”) (alterations in original omitted) (citation omitted)); see also Shqutaj v.

Gonzales, 158 F. App’x. 663, 665–66 (6th Cir. 2005) (“Where the petitioner’s brief lacks legal or

factual argument, this Court will not examine the record and construct an argument on

petitioner’s behalf.”).

We accordingly affirm the grant of summary judgment on all of Reed’s disparate

treatment claims.

D. Retaliation

Reed next alleges that P&G’s management retaliated against him for participating in

Reginald Charles’s internal complaint of racial discrimination at the plant, and for making his

own complaints to the human resources department. Reed appears to contend that both his

removal from his extended role and his failure to attain T4 status were retaliatory. In order to

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establish a prima facie case of retaliation, Reed must show that (1) he engaged in protected

conduct, (2) P&G had knowledge of his protected activity, (3) P&G took an adverse employment

action against him, and (4) a causal connection exists between the protected activity and the

adverse employment action. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 345 (6th Cir.

2008).

Drawing all reasonable inferences in his favor, Reed engaged in protected activity when

he made oral complaints of discrimination to King and Napadek, see Trujillo v. Henniges Auto.

Sealing Sys. N. Amer., Inc., 495 F. App’x 651, 655 (6th Cir. 2012), and when he participated in

Charles’s internal investigation, see Crawford v. Metro. Gov’t of Nashville and Davidson Cnty.,

Tenn., 555 U.S. 271, 277–80 (2009). However, it is less clear whether Reed engaged in a

protected activity when he sent King his letter dated October 5, 2008, complaining that the

promotional process was unfair. Although the letter does name two White employees seeking

T4 status, and uses the word “discriminatory,” it does not directly state that Reed believed he

was being discriminated against on the basis of his race or that he suspected that White

employees were receiving opportunities that he was not. See Fox v. Eagle Distrib. Co., 510 F.3d

587, 591 (6th Cir. 2007) (“[A] vague charge of discrimination in an internal letter or

memorandum is insufficient to constitute opposition to an unlawful employment practice”)

(citation omitted)); see also Willoughby v. Allstate Ins. Co., 104 F. App’x 528, 531 (6th Cir.

2004).

We need not resolve this issue, though, because Reed’s retaliation claim fails for other

reasons. The second and fourth elements for a prima facie case of retaliation require that the

employer knew of the plaintiff’s protected activity and that the protected activity and the adverse

employment action be causally linked. When understood in conjunction, then, these two

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elements require a plaintiff to show that the relevant decision-makers were aware of his or her

protected activity. See Mulhall v. Ashcroft, 287 F.3d 543, 552–53 (6th Cir. 2002). While a

plaintiff can point to circumstantial evidence of such knowledge, he or she must produce

“specific facts,” not mere “conspiratorial theories.” Id.

As for the first alleged adverse employment action, Reed’s removal from his extended

role position, Reed does not contest that Napadek made the decision to eliminate some extended

roles in the summer of 2008, and that Bruns chose the particular positions that October. Reed

has not set forth specific facts to demonstrate that either Napadek or Bruns were aware of Reed’s

complaints of racial discrimination during the relevant time period. Rather, all that can be

discerned from the record is that Reed gave a letter to, and then spoke with, King in October, and

that Reed and Napadek met and discussed Reed’s concerns about discrimination in November,

after his role had been selected for elimination. Likewise, the record does not permit us to

conclude that the individuals with the authority to promote Reed—again, Bruns, and arguably

Massey, who coached his team members through the promotion process—knew that he had

spoken up about discrimination. While Reed testified at his deposition that he spoke with Bruns

about Massey’s hostile or harassing behavior, he also admitted that he did not tell Bruns that he

believed Massey was discriminating against him due to his race. And, lastly, the record provides

no details as to the content of Reginald Charles’s complaints, when they were made, or who

participated in or was aware of the investigation. Because Reed cannot establish a causal

connection between the adverse employment actions and his protected activities, the district

court properly granted summary judgment on his retaliation claim.1

1

We also note that it is questionable whether Reed’s removal from his extended role position is

the sort of adverse employment action needed to support a claim of retaliation. See Kocsis v.

Multi-Care Mgmt, Inc., 97 F.3d 876, 885–86 (6th Cir. 1996) (finding no “materially adverse

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Case No. 13-5797

Reed v. Procter & Gamble Mfg., Inc.

E. Hostile Work Environment

Lastly, Reed alleges that he was subjected to a hostile work environment created by

Massey and other, largely unidentified, colleagues. Title VII protects employees from having to

work in a “discriminatorily hostile or abusive environment.” Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993). “To succeed on a claim of racially hostile work environment,” Reed

must show the following: (1) that he “belonged to a protected group,” (2), that he “was subject to

unwelcome harassment,” (3) that “the harassment was based on race,” and (4) was “sufficiently

severe or pervasive to alter the conditions of employment and create an abusive working

environment,” and (5) that P&G “knew or should have known about the harassment and failed to

act.” Williams v. CSX Trans. Co., 643 F.3d 502, 511 (6th Cir. 2011).

We focus on the third and fourth elements, considering whether Reed can establish that

he suffered harassment “based on race.” Id. A plaintiff can show that harassment was based on

race by either putting forth “direct evidence of the use of race-specific and derogatory terms,” or

by showing that the harassing party treated employees not in the plaintiff’s protected class

differently—that is to say, better. Id. To determine whether harassment was sufficiently severe

or pervasive, we look at the combined effect of all alleged acts of harassment. See id.

To support his claim that P&G fostered a racially hostile work environment, Reed points

to the following incidents: Reed received a “threaten[ing]” email and a “hostile” phone call from

Massey; Reed believed that Massey created a noose from a telephone cord when Reed was

nearby but unable to see Massey’s gesture; Reed heard colleagues use racial slurs in the

workplace; Reed was excluded from lunches with colleagues and treated in a cold manner by his

employment action” where plaintiff continued to receive same pay, continued to perform same

duties, and experienced no loss of prestige in new position). We do not need to resolve this

matter due to the other faults in Reed’s retaliation claim.

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Case No. 13-5797

Reed v. Procter & Gamble Mfg., Inc.

managers after expressing his concerns about the promotion process; and a colleague at one point

splashed Reed’s “head and face . . .with an unknown solution.”

Beginning with the incidents involving Massey, Reed testified that he and Massey had

exchanged emails that Reed interpreted as “hostile” and “threatening,” and that Massey became

“belligerent” when Reed asked for a vacation day that Massey had already given off to another

(also African-American) employee. Reed ultimately took the day off. As for the email, Reed’s

only specific example of a hostile statement is that Massey told him to “cut the crap.” Reed has

not presented any evidence suggesting that Massey’s annoyance or anger on these occasions was

indicative of discrimination. No racial animus is apparent from Massey’s words or actions, and

Reed has not pointed to facts that would allow us, or a jury, to conclude that Massey did not treat

White employees similarly. Because Reed has not shown that any harassment occurring over the

phone or via email was because of his race, we do not consider these incidents in assessing the

overall severity or pervasiveness of harassment in the workplace. Williams, 643 F.3d at 511

(citing Bowman v. Shawnee State Univ., 220 F.3d 456, 464 (6th Cir. 2000)).

However, Reed also raises a far more serious allegation regarding Massey. In his

deposition, Reed testified that he was sitting at his desk one day as Massey walked in,

approached his own desk (located adjacent to Reed’s), took a telephone cord out of a drawer, and

then walked behind Reed. At this point—while Massey was out of Reed’s field of vision—Reed

heard another co-worker laugh and ask Massey, “Are you fixing to hang someone?” Reed

testified that he then heard the cord fall into a trash can to his left. He explained that his

“immediate reaction was that possibly a noose had been formed out of the cord or some type of

gesture” had been made to indicate a hanging. Although Reed never saw Massey form a noose,

we are required to draw all inferences in Reed’s favor, and we conclude what Reed did observe

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Case No. 13-5797

Reed v. Procter & Gamble Mfg., Inc.

and hear could allow fact-finders to determine that Massey made an extremely offensive, racially

charged gesture in Reed’s presence.

Reed further alleges that he heard one particular White co-worker in the hot oil

department make a comment to another White employee about eating “watermelon and fried

chicken,” and that he later observed the same individuals “joking about the watermelon again.”

These terms may indeed be racially charged, and if we draw all inferences in Reed’s favor, we

could determine that a jury might find them to have been directed at Reed. Accordingly, we find

that Reed has met the third requirement.

As for Reed’s remaining allegations, these fail to meet the requirement that the harassing

behavior be because of Reed’s race. The record is devoid of evidence to indicate that Reed was

splashed with an unknown liquid, or that he was subject of unfriendly treatment from some

colleagues, because he is African-American; nor does Reed provide sufficient evidence that

Black employees were generally treated differently than White employees, other than his

arguments pertaining to his failure to attain a promotion.

Thus, we are left with the telephone cord episode and the references to fried chicken and

watermelon, and must determine whether the combined effect of these incidents could constitute

harassment “sufficiently severe or pervasive to alter the conditions of employment and create an

abusive working environment.” Williams, 643 F.3d at 511. In making this determination, we

consider “the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.” Harris, 510 U.S. at 23; see also Williams, 643 F.3d at

512–13. Reed alleges only three instances of harassing behavior, although he had been working

at the plant since 1996. Two of those instances—his coworkers’ comments—were offensive but

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Case No. 13-5797

Reed v. Procter & Gamble Mfg., Inc.

not particularly serious or threatening; rather, they fall into the “offensive utterance” category.

See Harris, 510 U.S. at 23. And while the telephone cord incident is much more troubling, we

note that it is isolated—Reed does not allege that Massey made any other offensive gestures or

comments—and that Massey did not directly accost or threaten Reed. 2 Thus, even drawing all

inferences in Reed’s favor, the conduct Reed alleges is not sufficiently severe or pervasive to

support his claim that P&G fostered a hostile work environment. Cf. Williams, 643 F.3d at 512–

13; Burnett v. Tyco Corp., 203 F.3d 980, 981, 985 (6th Cir. 2000) (three offensive incidents, one

involving touching and two involving explicit comments, found insufficient to establish hostile

work environment on the basis of sex); E.E.O.C. v. Northwest Airlines, Inc., 188 F.3d 695, 702

(6th Cir. 1999) (repeated incidents involving “presence of nooses and Ku Klux Klan symbols in

the workplace” found sufficient to warrant “general injunctive relief” pursuant to consent decree

prohibiting employer from engaging in or allowing racial harassment of employees). Because

Reed cannot meet the fourth requirement to show a hostile work environment, we need not

consider whether P&G knew or should have known of the offensive incidents and failed to

respond. The district court properly dismissed this claim.

III. CONCLUSION

We affirm the district court’s grant of summary judgment in P&G’s favor on Reed’s

state-law and federal claims of disparate treatment, retaliation, and hostile work environment.

2

We do not exclude the possibility that only one or two incidents of race-based harassment may

be so severe as to constitute a hostile work environment. See Ayissi-Etoh v. Fannie Mae, 712

F.3d 572, 575, 577 (D.C. Cir. 2013) (reversing grant of summary judgment on hostile work

environment claim where supervisor yelled at African-American employee, “Get out of my

office, nigger”). But the facts Reed alleges are not sufficiently severe.

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