Catherine Wilson v. Chipotle Mexican Grill

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CATHERINE WILSON,
Plaintiff
v. Case No. 1:12-cv-87-HJW
CHIPOTLE MEXICAN GRILL, INC.,
Defendant
ORDER
Pending is the defendant’s “Motion for Summary Judgment” (doc. no. 17),
which plaintiff opposes. Defendant has submitted proposed findings of fact and
conclusions of law, which plaintiff has highlighted as true, false, or irrelevant (doc.
no. 22). Having carefully considered the record, including the parties’ briefs,
exhibits, proposed findings, and applicable authority, the Court will grant the
motion for the following reasons:
I. Background and Procedural History
The following facts are largely undisputed.1
In July 2011, plaintiff (age 25,
female, African-American) was hired to work as a part-time crew member at the
Chipotle Mexican Grill (“Chipotles”) in Clifton, Ohio (doc. no. 22, ¶¶ 1, 4). Her
duties included preparing food and operating the cash register. At that time,
1
Although plaintiff red-lines as Adisputed@ the defendant=s characterization
of certain facts in the proposed findings, the Court will rely on the actual facts, as
shown by the evidence itself. Disputed characterizations will be noted herein.
Wilson v. Chipotle Mexican Grill Inc. Doc. 26
Dockets.Justia.com

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plaintiff indicated she would like to take “a short leave” in the near future to go to
Florida (Wilson Dep. at 121-122, 123-124). Plaintiff told the general manager
Jennifer Hernandez (now Yacuzzi) that she wanted to take “some time off” in
November to work at Disney World (doc. no. 22, ¶ 10), but did not specify the exact
days she wanted off. When plaintiff later mentioned this to the new apprentice
manger (Brent Moore) who started working there in September, Moore told her to
write her request for specific days off in the request book. Plaintiff wrote that she
wanted to take off November 7-16 to work at Disney World (during her fall break
from school) and also wanted to take off November 24-26, which included
Thanksgiving Day and several days afterward (¶ 11).2
During the three months
plaintiff worked at Chipotles, she took off a shift on several occasions by getting
another person to cover it (Wilson Dep. at 183). She did not arrange to have
anyone cover the requested thirteen days off in November.
Meanwhile, in August and September of 2011, plaintiff indicates the Clifton
restaurant had various problems. For example, on one occasion, the restaurant
had to close early for lack of food (despite a line of paying customers) because the
kitchen manager “forgot” to order rice, which is a key ingredient on Chipotles’
menu (Wilson Dep. at 50). Plaintiff indicates this early closing was done without
obtaining permission from corporate management (Id.). After investigating the
2 Although plaintiff “disputes” the defendant’s description of this time off as
“lengthy” or “considerable” (doc. no. 22 at ¶¶ 12-15), this characterization creates
no genuine dispute of material fact. It is undisputed that she requested 13 days off,
including 10 days to go to Florida.

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problems at the Clifton restaurant, Chipotles’ corporate management terminated
the general manager (Jennifer Hernandez) and the kitchen manager (Katrice
Maley).3
In October 2011, Chipotles’ corporate management brought in Russell
Behrman (“Behrman”) as acting manager to fix the problems and restore the
restaurant to proper operation. When Behrman asked Moore for his opinion about
the crew members, Moore rated plaintiff as a “low performer” (Behrman Dep. at
28).4
During her three months at Chipotles, plaintiff had been counseled several
times about her “attitude” (Wilson Dep. at 221).5
Plaintiff indicates that when the new manager “got in there, nobody was
getting approved [for] anything. . .we were . . .told. . . the store was a shipwreck
3 Although plaintiff red-lines as “disputed” the assertion that the restaurant had
“poor leadership,” was in “poor condition,” or was “unclean, disorganized, and
operating below standard” (¶¶ 5,15), these alleged background facts are not
“material” in this case. Only disputes over facts that might affect the outcome of
the suit under governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be counted.
Anderson, 477 U.S. at 248 (explaining that a fact is “material” if it is outcome
determinative under applicable law).
4 Plaintiff’s subjective opinion of her own job performance is not relevant to the
analysis and creates no genuine dispute of material fact.
5 Although plaintiff “disputes” this (¶¶ 28-30), the record reflects that at least
three different managers (two of whom were African-American) counseled plaintiff
about her confrontational “attitude” with people. At one point, plaintiff herself
indicated in her “developmental journal” that she thought her “attitude was better”
(¶ 31), which suggests that she was aware it had needed improving (doc. no.
17-13). Plaintiff’s explanation for her red-lining is that she had received no written
warnings about her attitude. This provides no basis to “dispute” the fact that she
was verbally counseled by various managers about her attitude.

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and none of us was going anywhere until the store was back in order” (Wilson
Dep. at 76). Nonetheless, on October 17, 2011, plaintiff asked Behrman about
taking off thirteen days in November (Wilson Dep. at 141, 239). Moore was also
present for this conversation. Behrman told her he could not approve such an
extended absence. As Behrman describes it, plaintiff became angry and told him
that even without his approval, she was going to Florida. Plaintiff told them she
was “done” with Chipotles and walked out. Based on plaintiff’s statements,
Behrman understood that plaintiff had just quit (Behrman Dep. at 63 “My
understanding was that she had quit.”). In the manager’s log on October 17, 2011
(doc. no. 17-8), Behrman recorded that:
I noticed several “request offs” in our book for over a
dozen shifts & told Catherine that I cannot fulfill her
requests. She is not a top performer & the overall idea of
getting this restaurant in order is to ensure that
everybody is participating to the fullest & that most
requests throughout our roster, at the time, probably will
not be fulfilled. Catherine then told me that she will not
be working w/us anymore. Therefore, we terminated.
On her termination form, he listed plaintiff’s reason for termination as “Voluntary –
dissatisfied with hours” (doc. no. 17-9).6
Plaintiff admitted at deposition that she
had insisted to Behrman and Moore that she “had to have those days off” to go to
Disney World (Wilson Dep. at 239 Q: So you did tell him that you had to have those
days off? A: Yes).
6 Although plaintiff “disputes” that she quit (¶¶ 16-24), she admits that the
proposed findings accurately set forth Behrman’s entry.

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Plaintiff returned several days later when Behrman was not on duty. She
worked several hours of a previously scheduled shift but went home early
(Wilson Dep. at 236). When she showed up again on October 22, 2011, Behrman
was surprised to see her. Plaintiff became very angry when she saw that she had
been removed from the schedule. She argued with Behrman about whether she
had previously “quit.” She acknowledges that she was “very combative,”
“emotional,” and “loud” in view of customers (Wilson Dep. at 278-282 Q: You
described this earlier as combative? A: Very.). She acknowledges that her tone of
voice was “high” for a restaurant (Id. at 282, 284). According to Behrman and
several crew members, plaintiff was angry, loud, disrespectful, and used profanity.
Behrman told her he would have a police officer escort her out if she refused to
leave; plaintiff acknowledges this (Id. at 281). Plaintiff then swore at him and
threatened to call the company’s complaint hotline. She claims that as she left,
Behrman made an offensive comment to her (i.e. calling her a “black bitch dyke”).
Behrman denies making any such comment (Behrman Dep. at 49, indicating he
had “never used those same words in a sentence in my entire life”). Although the
restaurant was fully staffed and serving customers at the time, and although
plaintiff claims that Behrman “yelled” this comment inside the restaurant in a
“loud” tone of voice (Wilson Dep. at 286; see also, doc. no. 17-14), plaintiff has not
produced any witness who heard this alleged comment.7
7 In her brief, she asserts that the comment was made in a “a voice loud enough
for others to hear” (doc. no. 21 at 6).

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After plaintiff called the Chipotles’ internal complaint line about being
treated “unfairly,” Area Manager Herman Mobbs (who is African-American)
investigated the matter the next day (Mobbs Dep. at 42-43). He supervised fifteen
restaurants in the Northern Kentucky and Cincinnati area (Id. at 7). He interviewed
Moore, Behrman, plaintiff, and two other crew members who had observed the
incident. His report indicates he “attempted to speak with every crew member that
worked on the day/time in question” (doc. no. 17-19). Plaintiff acknowledges that
Mobbs interviewed her about what happened (Wilson Dep. at 156-157).
Mobbs indicates that when he asked Behrman about the incident, Behrman
explained that plaintiff was upset because she was not given the extended time-off
she wanted (Mobbs Dep. at 40-41). Behrman described plaintiff’s subsequent
inappropriate behavior and loud angry comments in view of customers, and
indicated that even if she had not previously quit, he would have fired her for such
behavior (Id.). He denied making any offensive comment to her (Id. at 49). Mobbs
checked with several other crew members at the restaurant, who essentially
corroborated Behrman’s version of events, including that plaintiff was loud,
disrespectful, and used profanity (Id. at 40, 45). None of the people interviewed by
Mobbs indicated that they had heard any offensive comment by Behrman.
Mobbs indicates that when he spoke with plaintiff, she admitted she had told
Behrman and Moore on 10/17 that “if she wasn’t going to be able to get the time
off, she was not going to come into work” (Mobbs Dep. at 47, Q: Did you
understand that to mean she was going to quit? A: That’s how it sounded to me. If

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you don’t come to work, you abandon your job.). Moore confirmed to Mobbs that
plaintiff had indicated on 10/17 that “she was going to just quit” if her time off was
not granted (doc. no. 17-19, Report). Mobbs determined that plaintiff had
“informed them both [Moore and Behrman] she would be resigning if the time was
not granted” (Id.). Mobbs also determined that when plaintiff returned to the
restaurant several days later, Behrman had “reminded her of her statement of
resigning if she was not granted the time off. . . [she] became very upset and was
overheard using profanity” (Id.).
Mobbs indicates that when he spoke with plaintiff, she claimed she had
been “extremely respectful” in her interaction with Berhman and “never used
profanity” (doc. no. 17-19, Report). Although she told Mobbs to check with crew
member Ryan Heard (who is African-American), Ryan confirmed to Mobbs that
plaintiff had used profanity repeatedly. Mobbs indicated in his report that “[b]ased
on the results of my investigation, [plaintiff’s] statement was not true” (Id.). He
concluded that “[a]s a result of [her] inappropriate behavior on the day in
question, I would not recommend allowing her to return to work for Chipotle. . .
[she] should have conducted herself in a professional manner – and this did not
happen.” (Id.). Based on his investigation, Mobbs determined that plaintiff’s
employment ‘termination should stand.”
On January 30, 2012, plaintiff filed a four-count federal complaint, alleging
gender and race discrimination under Title VII and Ohio law (doc. no. 1). In her
complaint, plaintiff alleges she filed a charge with the Equal Employment

8
Opportunity Commission (“EEOC”) on October 25, 2011, and that a “Dismissal and
Notice of Rights” was issued less than a week later on October 31, 2011.8
After
discovery concluded, Chipotles filed the present motion for summary judgment.
The motion is now fully briefed and ripe for consideration.
II. Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure provides in relevant part:
A party may move for summary judgment, identifying
each claim or defense or the part of each claim or
defense on which summary judgment is sought. The
court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.
Rule 56(c)(1) further provides that:
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to
particular parts of materials in the record . . . or (B)
showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact.
The moving party bears the burden of proving that no genuine issue of
material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). The court must construe the evidence and draw all reasonable
inferences in favor of the nonmoving party. Id. at 587. In doing so, courts must
distinguish between evidence of disputed material facts and mere “disputed
8 Plaintiff has failed to attach a copy of the “Dismissal and Notice of Rights” to her
complaint.

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matters of professional judgment,” i.e. disagreement as to legal implications of
those facts. Beard v. Banks, 548 U.S. 521, 529 30 (2006).
On summary judgment review, the court must determine whether the
evidence presents a sufficient dispute of material fact so as to require submission
to a jury or whether it is so one-sided that one party must prevail as a matter of
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). A party opposing
summary judgment “may not rest upon the mere allegations or denials of his
pleading, but ... must set forth specific facts showing that there is a genuine issue
for trial.” Id. at 248. A mere scintilla of evidence in support of a party’s claim is
insufficient to survive summary judgment, as there must be enough evidence that
a jury could reasonably find for the party. Id. at 252. Summary judgment must be
entered “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III. Relevant Law
A. Statutes
Title VII of the Civil Rights Act of 1964 (“Title VII”) provides in relevant part
that an employer may not “discharge . . . or otherwise . . . discriminate against any
individual with respect to . . . compensation, terms, conditions, or privileges of
employment, because of such individual's . . . race [or] sex.” 42 U.S.C. §
2000e-2(a)(1). Similarly, Ohio law makes it unlawful A[f]or any employer, because of
the ... race [or] sex ... of any person ... to discriminate against that person with

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respect to hire, tenure, terms, conditions, or privileges of employment, or any
matter directly or indirectly related to employment.@ Ohio R.C. ' 4112.02(A).
Typically, resolution of the federal claims will resolve the state claims, as the same
evidentiary standards and burdens of proof apply. Hawkins v. Anheuser-Busch,
Inc., 517 F.3d 321, 332 (6th Cir. 2008) (“[a]ll references throughout this opinion to
Title VII are therefore equally applicable to the plaintiffs' claims under Ohio
Revised Code § 4112”); and see, e.g., Francis v. Davis H. Elliot Construction Co.,
2013 WL 941527, *4 (S.D.Ohio) (same).
B. Evidentiary Burden-Shifting Framework
Employment discrimination claims may be based upon direct or indirect
evidence. Direct evidence is “evidence that proves the existence of a fact without
requiring any inferences,” Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d
544, 548 (6th Cir. 2004), whereas indirect evidence requires the drawing of an
inference, Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003).
For claims based on indirect evidence, the burden shifting evidentiary
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) applies. A
plaintiff must first establish a prima facie case of employment discrimination.
Upon doing so, the burden shifts to the employer to “articulate a
nondiscriminatory reason for its action.” Harris v. Metro. Gov. of Nashville &
Davidson Cty., Tenn., 594 F.3d 476, 485 (6th Cir. 2010). The plaintiff must then
rebut the proffered reason by pointing to sufficient evidence from which the jury
may reasonably reject the employer's explanation as pretextual.

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The ultimate question in every employment discrimination case is whether
the plaintiff was the victim of intentional discrimination. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). Plaintiff must “show that the
motive to discriminate was one of the employer's motives” for the adverse action,
i.e., was a “motivating factor.” Univ. of Texas S.W. Med. Center v. Nassar, 133 S.Ct.
2517, 2525-26, 2013 WL 3155234, *7 (citing 42 U.S.C. § 2000e–2(m) which provides
that “an unlawful employment practice is established when the complaining party
demonstrates that race . . . [or] . . . sex . . . was a motivating factor for any
employment practice, even though other factors also motivated the practice”).
IV. Discussion
A. No Direct Evidence
Although plaintiff suggests that she has direct evidence, the record does
not support her contention. For example, plaintiff claims another employee told
her that at some unspecified time, Behrman was asked for help because there was
a long line of customers and that Behrman said “to call when them, when they
were out of the line” (Wilson Dep. at 70). Plaintiff indicates that she heard from
another employee that “at the time the people in line was African-Americans,” and
therefore, she attributes discriminatory meaning to Behrman’s alleged comment.
Even supposing this double hearsay were somehow admissible,9
it is quite vague
and subject to more than one plausible interpretation. The comment would require
9 Plaintiff indicates she did not hear this comment. She learned of it from another
crew member Deonsae, who in turn, heard this story from another crew member
LaKeesha (Wilson Dep. at 70 Q: So this is what Deonsae told You? A: Yes).

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multiple inferences to have the meaning urged by plaintiff and is not direct
evidence.10
Plaintiff admits she did not hear the comment and does not know the
race of any people in the line (Wilson Dep. at 165).11
As for plaintiff’s contention that Behrman allegedly made an offensive
remark to her after she was “very combative, loud, and angry,” Behrman denies
responding in kind. Regardless, this incident occurred five days after plaintiff had
indicated she was quitting her job (i.e., she had told Behrman and Moore that she
“had” to go to Florida and was “done” with Chipotles). Based on plaintiff’s
statements, Behrman had recorded in the manager’s log on October 17, 2011, that
plaintiff had voluntarily quit. Plaintiff admitted at deposition that Behrman had
never made an offensive remark to her until October 22 (Wilson Dep. at 169 Q:
There were no comments to you before that date? A: No). Given the timing and
context, this isolated comment cannot be used as “direct” evidence that she was
“terminated” due to race or gender discrimination. Rowan v. Lockheed Martin
Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004) (“[a]s a general rule, a single
stray comment, made outside the context of the decision-making process, does
not constitute direct evidence of discrimination.”). Chipotles asserts that multiple
10 Plaintiff’s suggested interpretation amounts to nothing more than speculation
and personal belief. See Chappell v. GTE Products Corp., 803 F.2d 261, 268 (6th
Cir. 1986) (holding that personal beliefs, conjecture and speculation are
insufficient to support an inference of discrimination).
11 The evidence does not reflect the existence of a discriminatory work
environment where employees frequently made derogatory or discriminatory
remarks about females or African-Americans. In fact, plaintiff estimates that the
workforce at the Clifton location was 75% African-American.

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assumptions and inferences would be required for the alleged comment on 10/22
to have any connection with events on 10/17 (doc. no. 22 at 10, 22). The United
States Supreme Court has repeatedly explained that Title VII is not a “general
civility code” and that “the sporadic use of abusive language” is “legally
insufficient to obtain relief under Title VII.” Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998). Plaintiff must proceed under the burden-shifting framework for
claims based on indirect evidence.
B. Prima Facie Case
To establish a prima facie case of employment discrimination under a
disparate treatment theory with indirect evidence, plaintiff must show that (1) she
was a member of a protected class (i.e. female, African-American); (2) she suffered
an adverse employment action; (3) she was qualified for her position; and (4) she
was replaced by someone outside her protected class, or was treated differently
than similarly situated, nonprotected employees. White v. Baxter Healthcare Corp.,
533 F.3d 381, 391 (6th Cir. 2008), cert. denied, 129 S.Ct. 2380 (2009). The parties do
not dispute that the plaintiff is female and African-American, and that she was
qualified for her position. Chipotles asserts that plaintiff has failed to make out a
prima facie case at the second and fourth steps.
1. No Adverse Action
Chipotles asserts that plaintiff quit her job and cannot show that she
suffered any “adverse employment action.” See Kocsis v. Multi–Care Mgmt., Inc.,
97 F.3d 876, 885 (6th Cir. 1996) (the employee must show she was subjected to a

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“materially adverse change in the terms or conditions of her employment”);
Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998).
Here, the evidence reflects that plaintiff expressed the intention to quit, and
her manager reasonably understood that plaintiff had in fact quit. Plaintiff
admittedly told both managers (Behrman and Moore) that she had to have the time
time off to go to Florida and that she would not be working at Chipotles anymore if
she was not given the requested time off (Wilson Dep. at 239). Behrman indicated
he could not give her that much time off. Although plaintiff argues that she did not
quit because she did not use the precise words “I quit” (doc. no. 21 at 5), this
argument is specious. Plaintiff did not need to use any specific words in order to
quit. Her comments and actions were sufficient to convey such meaning. Hammon
v. DHL Airways, Inc., 165 F.3d 441, 447 (6th Cir. 1999) (an employee can
“constructively resign” by refusing to comply with her employer’s instructions or
by abandoning her position). When Mobbs later asked plaintiff about it, she
confirmed that she had told Behrman and Moore that “if she wasn’t going to be
able to get the time off, she was not going to come into work” (Mobbs Dep. at 47).
Like Behrman, Mobbs reasonably understood plaintiff to have stated that she was
quitting (Id. “That’s how it sounded to me.”).
When an employee voluntarily resigns, she cannot claim that she suffered
an adverse employment decision. See Nance v. Goodyear Tire & Rubber Co., 527
F.3d 539, 555 (6th Cir. 2008), cert. denied, 555 U.S. 1171 (2009) (affirming summary
judgment for employer because plaintiff had quit); Hammon, 165 F.3d at 447

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(plaintiff quit, and thus, could not establish a prima facie case); Sander v. Gray
Television Group, Inc. 478 Fed.Appx. 256, 263 (6th Cir. 2012) (“If Sander quit, then
he did not suffer an adverse employment action”); Watson v. City of Cleveland,
202 Fed.Appx. 844, 854 (6th Cir. 2006) (same, observing that plaintiff “chose to
quit”). Plaintiff has not established a prima facie claim at the second step.
2. Not Replaced or Treated Differently
Even assuming that plaintiff could show a genuine dispute of material fact at
the second step, her race and gender discrimination claims also fail at the fourth
step because she points to no evidence that she was “replaced” by someone
outside her protected class or “treated differently” than any similarly situated
employees. This step is inherently contextual and generally requires that the
plaintiff and any comparative employees “must have dealt with the same
supervisor, have been subject to the same standards and have engaged in the
same conduct.” Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000) (“the
comparative employees offered by plaintiff must be similarly-situated in all
relevant respects”) (citing Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d
344, 352 (6th Cir. 1998)).
Plaintiff has not shown that she was replaced by someone outside her
protected class or treated differently than any similarly situated employees.
Chipotles points out that the next four crew members hired by Behrman were all
African-American, and three of them were female: Kameelah Williams (female),
Lakeesha Zanders (female), Mia Burton (female), and Michael Coats (male) (doc.

16
no. 17 at 17, citing Behrman Dep. at 86). The evidence does not reflect that plaintiff
was replaced by someone outside the protected class.
The evidence also does not reflect that any other crew members were given
a comparable amount of time off. Plaintiff admits she is unaware of any other crew
member taking a comparable number of “days off in a row” (Wilson Dep. at 184). In
fact, she acknowledges that she does not know if any other crew member got any
time off (Id. at 153 Q: Was anyone able to get time off from Russell Behrman? A: “I
don’t know.”). Behrman testified that he did not approve any other comparable
requests for time off (Behrman Dep. at 81). Although plaintiff speculates that a
crew member named “Chad Kohls possibly could have been gone for four days”
(Wilson Dep. at 184), she also indicated that Chad had found someone to cover his
shifts (Id. at 185), which plaintiff did not do with respect to her request for 10 days
off to go to Florida.
Although plaintiff argues that Behrman terminated another crew member
(Tyler Bell, white male) for “not wanting to work the hours posted for him” and
marked him as “eligible for rehire” (doc. no. 21 at 9, citing Wilson Dep. at 176),
Chipotles points out that Wilson’s speculation is incorrect in every aspect (doc.
no. 23 at 4). Behrman did not terminate Bell; Moore did (doc. no. 23-2, Mobbs
Affidavit, ¶2). Bell was listed as “Unable to Perform Job,” not “Dissatisfied with
Hours.” Bell was marked as “ineligible” (not eligible) for rehire (Id.). A plaintiff
cannot withstand summary judgment by relying on mere “conjecture or
conclusory allegations.@ Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir.

17
2008); Travelodge Hotels, Inc. v. Govan, 155 Fed.Appx. 235, 237 (6th Cir. 2005)
(observing that briefs which are Asimply filled with conclusory allegations ... failed
to present sufficient evidence@ to withstand summary judgment).
Plaintiff also fails to mention that no other crew member had erupted in a
“very combative, loud, angry, emotional” profanity-laced tirade against the
manager for 9-12 minutes while in view of customers. Chipotles aptly points out
that plaintiff has produced no evidence that any other crew member was allowed
to do this without being terminated (doc. no. 17 at 17, citing Wilson Dep. at 277). In
sum, plaintiff has not shown that she was “treated differently” than any similarly
situated employees due to her race or gender. See, e.g., Weatherby v. Fed. Ex., 454
Fed.Appx. 480, 488 (6th Cir. 2012), cert. denied, 133 S.Ct. 896 (2013), r’hrg
denied,133 S.Ct. 1749 (2013) (affirming summary judgment for employer because
plaintiff did not show she was treated differently than any similarly situated male
and/or Caucasian employees).
Plaintiff merely alleges in conclusory fashion that she was not given
extended time off “because of her race and gender.” She relies largely on her own
deposition testimony, which merely reiterates her subjective belief that she was
somehow “discriminated against” because she wasn’t given the time-off she
demanded. Such testimony is insufficient to raise any genuine dispute of material
fact because it consists merely of her personal beliefs, conjecture, and
speculation. This cannot help her avoid summary judgment. See Chappell v. GTE
Prods. Corp., 803 F.2d 261, 268 (6th Cir. 1986) (an inference of discrimination

18
cannot be supported merely by the plaintiff's own personal belief and
speculation); Watson, 202 Fed.Appx. at 854 (same).
To survive summary judgment, it is plaintiff's burden to “present affirmative
evidence.” Anderson, 477 U.S. at 257; White, 533 F.3d at 389 (the “non-moving
party may not rest upon its mere allegations or denials of the adverse party's
pleadings, but rather must set forth specific facts showing that there is a genuine
issue for trial”); Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004)
(plaintiff must “show sufficient probative evidence [that] would permit a finding in
[her] favor on more than mere speculation”), cert. denied, 543 U.S. 821 (2004).
Even construing all reasonable inferences in her favor for purposes of summary
judgment, plaintiff has failed to establish a prima facie case. See, e.g., Weatherby,
454 Fed.Appx. at 489 (plaintiff failed to show that any protected status was a
motivating factor for her termination, and thus, failed to present a prima facie case
of race or gender discrimination).
3. Legitimate Nondiscriminatory Reason
Based on her statements, Behrman reasonably believed that plaintiff had
quit. Chipotles was under no obligation to reinstate an employee who had
voluntarily resigned. Pownall v. City of Perrysburg, 63 Fed. Appx. 819, 822 (6th Cir.
2003) (“once Pownall’s voluntary resignation took effect, she had no right to
revoke it, and the City had no duty to reinstate her”). Moreover, Chipotles indicates
that even if plaintiff had not quit, she would have been fired for angrily arguing in a
loud and disrespectful manner with her manager. Even assuming that the refusal

19
to reinstate plaintiff could be construed as an “adverse employment action,”
Chipotles has offered a legitimate non-discriminatory reason, namely plaintiff’s
admittedly inappropriate behavior. The evidence reflects that plaintiff was
disruptive, disrespectful, and insubordinate. See, e.g., Arnold v. Marous Bros.
Const., Inc., 211 Fed.Appx. 377, 381 (6th Cir. 2006) (“This court has confirmed that
insubordination can constitute legitimate reason for termination”). Chipotles’ Area
Manager Herman Mobbs investigated plaintiff’s allegations, determined that
plaintiff had behaved inappropriately, and decided that her termination should
stand. As the Sixth Circuit Court of Appeals has observed, “time and again we
have emphasized that [o]ur role is to prevent unlawful hiring practices, not to act
as a super personnel department that second guesses employers' business
judgments.” Corell v. CSX Transp., Inc., 378 Fed. Appx. 496, 505 (6th Cir. 2010)
(quoting Risch, 581 F.3d at 399).
4. No Pretext
Plaintiff has not shown that this decision was a pretext for discrimination.
To do so, she must show that the stated reason: (1) had no basis in fact, (2) did not
actually motivate the employer’s action, or (3) was insufficient to motivate its
action. White, 533 F.3d at 393. A plaintiff may show pretext by offering evidence
that challenges the reasonableness of the employer's decision ‘to the extent that
such an inquiry sheds light on whether the employer's proffered reason for the
employment action was its actual motivation.” Wexler v. White’s Fine Furniture,
Inc., 317 F.3d 564, 578 (6th Cir. 2003) (en banc). APretext is a commonsense

20
inquiry: did the employer fire the employee for the stated reason or not?@ Chen v.
Dow Chemical Co., 580 F.3d 394, 400 n. 4 (6th Cir. 2009).
Plaintiff relies largely on her own allegations and speculation and has not
produced evidence that would allow a jury to reasonably doubt the employer's
explanation. She testified that she had insisted to Behrman and Moore that she
“had to have those days off” (Wilson Dep. at 239). When Mobbs investigated, she
admitted she had told Moore and Behrman that if she could not get the time off,
“she was not going to come into work” (Mobbs Dep. at 47). Even though plaintiff
challenges Behrman’s understanding that she had quit, the evidence reflects that
he believed she had quit (doc. no. 17-18 “Catherine then told me that she will not
be working w/us anymore.”). When Mobbs looked into the matter, he came to the
same conclusion. An employer has an honest belief in its rationale when it
reasonably relied on the particularized facts that were before it at the time the
decision was made. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 398 (6th Cir.
2008) (quoting Michael v. Caterpillar Finc’l Serv. Corp., 496 F.3d 584 (6th Cir. 2007),
cert. denied, 552 U.S. 1258 (2008)). “The key inquiry in assessing whether an
employer holds such an honest belief is whether the employer made a reasonably
informed and considered decision before taking the complained of action.” Id.
To the extent plaintiff challenges Mobbs’ decision “to let her termination
stand,” she has pointed to no objective evidence that would cast any doubt on his
explanation. Mobbs conducted a reasonable investigation and found that “[d]uring
a discussion with Russ and Brent, Catherine informed them both she would be

21
resigning if the time was not granted” (doc. no. 17-19). He also determined that
plaintiff had subsequently behaved inappropriately and that she had not told him
the truth about her own behavior at the restaurant (Id). Although she initially
insisted she had been “respectful” with Behrman, plaintiff later admitted at
deposition that she had argued angrily and been “very combative,” “emotional,”
and “loud” (Wilson Dep. at 278-282).12
Given Mobbs’ investigation, his decision
had a basis in fact. Plaintiff admitted at deposition that it is “unprofessional” to
yell and and use profanity when you are upset or angry in the workplace (Id. at
290-291). Plaintiff points to no evidence indicating that her own inappropriate
behavior did not actually motivate Mobbs’ decision or that it was insufficient to do
so. Plaintiff has not shown any pretext. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
515 (1993) (“a reason cannot be proved to be “a pretext for discrimination” unless
it is shown both that the reason was false, and that discrimination was the real
reason’).
IV. Oral Argument Not Warranted
Local Rule 7.1(b)(2) provides that courts have discretion whether to grant
requests for oral argument. The parties have fully briefed the relevant issues. The
Court finds that oral argument is not necessary. Yamaha Corp. of Am. v.
Stonecipher’s Baldwin Pianos & Organs, 975 F.2d 300, 301-02 (6th Cir. 1992);
Schentur v. United States, 4 F.3d 994, 1993 WL 330640 at *15 (6th Cir. (Ohio))
12 The Oxford English Dictionary defines “respectful” as “full of or exhibiting
respect; deferential.” It defines “combative” as “fond of fighting, pugnacious.”

22
(observing that district courts may dispense with oral argument on motions for
any number of sound judicial reasons).
Accordingly, the defendant’s “Motion for Summary Judgment” (doc. no. 17)
is GRANTED, with court costs to plaintiff. This case is DISMISSED and
TERMINATED on the docket of this Court.
IT IS SO ORDERED.
s/Herman J. Weber
Herman J. Weber, Senior Judge
United States District Court

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