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Sullivan v. Hanover Foods Corp.

United States District Court, D. Delaware

January 14, 2020


          Seth J. Reidenberg, Tybout, Redfearn, & Pell, Wilmington, DE, Evan L. Frank, Alan L. Frank Law Associates, P.C., Jenkintown, PA - attorneys for Plaintiff.

          Barry M. Willoughby, Timothy Jay Houseal, Curtis J. Crowther, Lauren E.M. Russell, Young Conaway Stargatt & Taylor, LLP, Wilmington, DE - attorneys for Defendant.



         On May 29, 2018, Plaintiff Darlene Sullivan (“Plaintiff) filed a complaint against Defendant Hanover Foods Corporation (“Defendant”) alleging violations of Title VII of the 1964 Civil Rights Act (“Title VII”) and the Delaware Discrimination in Employment Act (“the DDEA”). (D.I. 1). Plaintiff later added claims under the Family and Medical Leave Act (“the FMLA”). (D.I. 57, 61, 62).[1] Pending before the Court is Defendant's motion for summary judgment (“Motion”). (D.I. 64). For the reasons set forth below, Defendant's Motion is GRANTED-IN-PART and DENIED-IN-PART.

         I. BACKGROUND

         This case stems from a series of disputes between an employee and her employer. From June 2014 until December 28, 2017, Plaintiff - with two gaps - was an employee at Defendant's production facility in Clayton, Delaware (“Clayton Plant”). (D.I. 62 ¶ 1; D.I. 74 at 1 ¶ 1). Initially hired as a vegetable production worker, Plaintiff held a variety of positions over the next three and a half years. (D.I. 62 ¶ 1-6; D.I. 74 at 1 ¶¶ 1-6). She was laid off twice but re-hired in both instances. (D.I. 62 ¶¶ 1-6; D.I. 74 at 1 ¶¶ 1-6).

         Plaintiff is an African American woman. During her years of employment at the Clayton Plant, Plaintiff complained repeatedly of sexual, racial, and retaliatory discrimination and harassment. (D.I. 74 at 7 ¶¶ 1, 6-8; D.I. 77 ¶¶ 1, 6-8). She lodged these complaints with a number of individuals and entities, including: Defendant's CEO, Jeffrey Warehime; her H.R. representative; the Equal Employment Opportunity Commission (“EEOC”); and the Delaware Department of Labor (“DDOL”). (Id.). Three times, she submitted Charges of Discrimination jointly to the EEOC and the DDOL, the first and third of which - those filed on January 14, 2016 (“January 2016 Charge”) and April 20, 2017 (“April 2017 Charge”) - are relevant here. (Id. ¶ 8). In those instances, the EEOC, acting on the recommendation of the DDOL, determined that “the evidence [did] not support a legal conclusion that illegal discrimination occurred.” (D.I. 67 at ¶ 59, A76-77).

         On November 21, 2017, Plaintiff was placed on FMLA leave after reporting an overuse injury to her hand. (D.I. 66 ¶¶40-44). Her physician estimated that her condition would last “8-12 weeks, ” stated that she was “to remain out of work until re-evaluated in four (4) weeks” and noted that reevaluation would take place on December 19, 2017. (E.g., D.I. 67 at ¶ 63; see also A64-73). What occurred after that date - December 19, 2017 - and whether it was intended to be the end of Plaintiff's FMLA leave, is disputed by the parties. Plaintiff, in short, asserts that December 19, 2017 was the date on which she would be re-evaluated, that she saw her physician as scheduled, that she was informed that she would need to remain out of work, and that she provided Defendant notice of that fact shortly thereafter but was nevertheless considered absent without cause and terminated. (D.I. 71 at 18-23). Defendant, on the other hand, contends that Plaintiff's FMLA leave ended on December 19, 2017, it received no notice that she remained unable to work beyond that date, and it terminated her employment on December 28, 2017 after she failed to report to work at the Clayton Plant for several days without excuse. (See D.I. 65 at 20-25; D.I. 76 at 10-15).

         In eventual response to her termination, Plaintiff filed the present suit, in which she alleges violations of Title VII, the DDEA, and the FMLA. (D.I. 62). Specifically, she asserts that Defendant violated Title VII and the DDEA by: “engag[ing] in a pattern and practice of discrimination against [her] with respect to the terms, conditions, and privileges of employment because of her race and [sex], and in retaliation for her complaints and discrimination charges”; “subject[ing her] to dissimilar and disparate standards of treatment with respect to the terms, conditions, discipline, and privileges of employment, because of her race and [sex]”; and “creat[ing] a working environment so hostile that no reasonable employee would tolerate it.”[2] (Id. ¶¶ 59-78). Also included is an allegation that Defendant terminated Plaintiff's employment in retaliation for her discrimination complaints. (Id. ¶¶ 64, 74). Additionally, Plaintiff alleges that Defendant violated the FMLA by interfering with her rights under that statute and retaliating against her for invoking those rights. (Id. ¶¶ 79-86).

         In its Motion, Defendant seeks summary judgment on nearly all of Plaintiff's Title VII and DDEA claims, and both of her FMLA claims. (See D.I. 65; D.I. 76).


         Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he 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.” A factual dispute is genuine where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996). An assertion that a fact is or is not genuinely disputed must be supported either by citing to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by “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.” Fed.R.Civ.P. 56(c)(1)(A)-(B). Relevant to this dispute, EEOC charges may raise genuine issues of material fact on their own. See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 168 (3d Cir. 2013) (citing Liotta v. Nat'l Forge Co., 629 F.2d 903, 907 (3d Cir. 1980)).

         If the moving party has carried its burden, the nonmovant must then “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587. The Court must “draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence, ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000), but must only ask “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented, ” Anderson, 477 U.S. at 248.

         In an employment discrimination case, like this one, the Court must ascertain “whether . . . there exists sufficient evidence to create a genuine issue of material fact as to whether the employer intentionally discriminated against the plaintiff.” Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987); see also Larochelle v. Wilmac Corp., 210 F.Supp.3d 658, 676 (E.D. Pa. Sep. 27, 2016). “Conclusory allegations, ” however, “in the absence of particulars, are insufficient to defeat summary judgment.” Taylor v. Cherry Hill Bd. of Educ., 85 Fed.Appx. 836, 839 (3d Cir. 2004). Moreover, where, as here, “the nonmoving party bears the burden of proof at trial, the moving party is entitled to summary judgment on showing that there is a lack of evidence to carry the non-moving party's burden on an essential element of that party's cause of action.” Brooks v. CBS Radio, Inc., 342 Fed.Appx. 771, 775 (3d Cir. 2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).


         As an initial matter, the Court must address Defendant's argument that the “DDEA includes the same administrative exhaustion requirements as” and “is construed in pari materia with Title VII.” (D.I. 65 at 12, n.10). Plaintiff does not contest this point and the law aligns with Defendant's position. See Hyland v. Smyrna Sch. Dist., 608 Fed.Appx. 79, 83 n.5 (3d Cir. 2015) (instructing that “the standards under Title VII and the DDEA are generally the same, [therefore a plaintiff's] inability to survive summary judgment under Title VII dooms her claim under the DDEA”); see also Fort Bend Cnty., Texas v. Davis, 139 S.Ct. 1843, 1846 (2019) (“As a precondition to the commencement of a Title VII action in court, a complainant must first file a charge with the [EEOC].” (citing 42 U.S.C. § 2000e-5(e)(1), (f)(1)); Paitsel v. State, No. K15C-02-030 JJC, 2016 WL 1424828, at *4 (Del. Super. Ct. Apr. 7, 2016) (“A charging party may file a civil action for discrimination in the Superior Court only after exhausting all administrative remedies and receiving a Delaware or Federal Right to Sue Notice.” (citing 19 Del. C. § 711(a))). Moreover, Plaintiff's Title VII and DDEA claims are substantively identical and the parties address them jointly in their filings. (See D.I. 65; D.I. 71; D.I. 76). Thus, the Court applies the same administrative requirements to both sets of claims and analyzes them jointly.[3]

         A. Title VII and the DDEA

         Title VII states that “[i]t shall be an unlawful employment practice for an employer to . . . discharge any individuals, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Similarly, the DDEA outlaws discrimination by an employer on the basis of race and/or sex. 19 Del. C. § 711(a).

         In seeking summary judgment on Plaintiff's Title VII and DDEA claims, Defendant argues that Plaintiff's: (1) wrongful termination claims should be “dismissed”[4] for failure to exhaust her administrative remedies, and her (2) retaliation claims, (3) discrimination and disparate treatment claims based on race and sex, (4) and hostile work environment claims based on race and sex should be “dismissed” because of evidentiary deficiencies. (See D.I. 65 at 1-2; D.I. 76 at 3, 6-9).

         1. Wrongful Termination Claims[5]

         First, Defendant asserts that Plaintiff's Title VII and DDEA wrongful termination claims must be dismissed because complainants are required to submit such charges to the EEOC prior to filing suit and Plaintiff “never filed a charge of discrimination with the DDOL or EEOC alleging that her termination constituted retaliation.” (D.I. 65 at 11). Plaintiff does not disagree that she is required to have submitted her complaints to the EEOC, but counters that her January 2016 and April 2017 Charges are sufficient. (D.I. 71 at 8-11). Defendant disagrees, asserting that those Charges are insufficient because they were both submitted “well before [Plaintiff's] termination.” (D.I. 76 at 1).

         “As a precondition to the commencement of a Title VII action in court, a complainant must first file a charge with the [EEOC].” Fort Bend Cnty., 139 S.Ct. at 1846. If the agency does not act within a specified time frame or chooses not to move forward with the charge, it must notify the filer, which is typically done with a “right to sue” letter. The filer then has ninety days to bring suit based on the allegations in its charge.[6] 42 U.S.C. § 2000e-5(f)(1).

         The ambit of a court-bound filer's complaint, however, is not limited to the specific actions alleged in its EEOC charge(s). Rather, it “is defined by the scope of the EEOC investigation which can reasonably be expected to grow out of [the] charge[(s)] . . ., regardless of the actual scope of the investigation.” Daoud v. City of Wilmington, 894 F.Supp.2d 544, 553 (D. Del. Oct. 1, 2012) (quoting Smiley v. Daimler Chrysler, 538 F.Supp.2d 711, 719 (D. Del. Feb. 21, 2008)); see also Barzanty v. Verizon PA, Inc., 361 Fed.Appx. 411, 414 (3d Cir. 2010). This “does not necessarily preclude a plaintiff from asserting a claim for the mere failure to check a box on an EEOC Charge Form, ” though “it does prevent [her] from ‘greatly expanding an investigation simply by alleging new and different facts.” Barzanty, 361 Fed.Appx. at 414 (citations omitted).

         To determine whether a plaintiff has met Title VII's administrative requirements, a court must ask whether “there [is] a close nexus between the facts supporting the claims raised in the charge[(s)] and those in the complaint.” Smiley, 538 F.Supp.2d at 721 (citing Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976)). For example, retaliation for an EEOC Charge is often found to fall within the scope of a reasonable EEOC investigation of that same charge. See, e.g., Lantz v. Waynesboro Area Sch. Dist., No. 16-cv-0224, 2016 WL 6039129, *4 (M.D. Pa. Oct. 14, 2016) (making such a ruling and noting that the Second, Fourth, Seventh, and Tenth Circuits have found the same); Farber v. Gen. Elec. Co., No. 93-2349, 1994 WL 46519, at *5 n.2 (E.D. Pa. Feb. 15, 1994) (making such a ruling); see also Howze, 750 F.2d at 1212 (holding, in the context of a motion to amend, that a “new retaliation claim may be fairly considered an explanation of the original charge”).

         As noted, Plaintiff filed two relevant Charges of Discrimination with the EEOC and the DDOL - one in January 2016 and the other in April 2017. The forms documenting those complaints have sections for providing, inter alia, the type of discrimination alleged, any “adverse employment action” claimed, the “date(s) of discrimination, ” and a “Summary of Allegations.” (E.g., D.I. 67 at ¶ 7, A49). For the “date(s) of discrimination, ” the person completing the form may indicate “continuing action” by checking a box next to those words. (Id.).

         Plaintiff's January 2016 Charge form states that she alleged discrimination based on race, sex, and retaliation. (Id. at A7). It also lists “layoff” as the adverse employment action taken against her and provides one “date of discrimination” - October 13, 2015 - which is the date Plaintiff was laid off from the Clayton Plant for the first time. (D.I. 66 ¶ 4; D.I. 67 at ¶ 7). The “continuing action” box is not checked and the “Summary of Allegations” states the following:

Charging Party asserts that she was discriminated against based on her race, gender, and in retaliation for engaging in a protected activity. Charging Party asserts that she was laid off on October 13, 2015 based on her protected class. Charging Party asserts that Alvin Constantine (male, Asian) and Jaime Dobies (male, white) discriminated against black employees by separating them from white and Hispanic employees in the workplace. Charging Party asserts that Betty (female, white) spoke to her in a demeaning manner for creating a mess in Betty's office. Charging Party asserts that she contacted Jeff Warehime on multiple occasions to inform him of the ongoing racial discrimination and sexual harassment at the location. Charging Party asserts that, as a result of this phone call, she was eventually laid off.

(D.I. 67 at ¶ 7).

         Plaintiff's April 2017 Charge form states that she again asserted discrimination based on race, sex, and retaliation, but lists “Harassment, Terms and Conditions, Failure to Promote” as the adverse actions taken against her and January 16, 2017 as the “date(s) of discrimination.” (Id. at A49). Again, the “continuing action” box is not checked. (Id.). The “Summary of Allegations” recites:

Charging Party asserts she filed a prior charge of discrimination with DDOL (SUL010816 / 17C-2016-00222C)[.] Respondent harassed her and denied her a promotion in retaliation for her complaint. Specifically, Charging Party asserts third shift supervisor, Jaime Dobies (male) has called less senior employees back to work, failed to pay her wages for hours worked, refused to show her open positions, violating the terms of the contract, pressured her to sign grievances without union representatives, and disciplined her for using the bathroom in an effort to get her to quit. Charging Party asserts Respondent is treating her less favorably because of her race, sex, and in retaliation for her initial discrimination complaint.


         Thus, Plaintiff alleged discrimination based on race, sex, and retaliation in both her January 2016 and April 2017 Charges, and additionally alleged discrimination in the latter in retaliation for her filing of the former.[7] (Id.). Similarly, Plaintiff's instant Title VII and DDEA wrongful termination claims allege that she was terminated for “complaining about discrimination - both when [she did so] internally, and later when [she] filed discrimination charges with the [DDOL] and [EEOC].” (D.I. 62 ¶¶ 64, 74). Thus, Plaintiff's two sets of allegations are aligned in such a manner that a close nexus exists between the facts underlying both. Additionally, to the extent that any significance can be taken from the fact that Plaintiff's charge forms each list only one date of discrimination and neither has a check mark next to the “continuing action” option, see Barzanty, 361 Fed.Appx. at 414 (noting that a failure to “check a box” on an EEOC charge form does not necessarily bar a later legal claim), Defendant's acknowledgement that the conduct alleged in the charge forms occurred over an extended period of time, (D.I. 65 at 4-7), and the April 2017 Charge form's use of the present tense (e.g., “Charging Party asserts Respondent is treating her less favorably . . . .”), (D.I. 67 at ¶ 49), counteract an implication that Plaintiff alleged isolated, non-continuing adverse action in her EEOC charges.

         As noted, however, Defendant also argues that Plaintiff's wrongful termination claims cannot fall within the ambit of her EEOC charges because those charges are temporally remote from her termination and because the DDOL investigation - which was the basis for the EEOC's decision not to pursue the allegations in her charges - was completed before Plaintiff's termination. (D.I. 76 at 2-3). Defendant cites no support for either of these propositions[8] and the Court finds them uncompelling in light of the applicable standard. See Daoud, 894 F.Supp.2d at 553 (noting courts must ask whether the claims fall within the scope of the EEOC investigation which can reasonably be expected to grow out of EEOC charges, regardless of whether the investigation actually reached purported harm justifying the claim); see also Barzanty v., 361 Fed.Appx. at 414. Moreover, temporal proximity is less compelling in this case because Plaintiff's April 2017 Charge form describes ongoing retaliation, (D.I. 67 at ¶ 49), which could reasonably be expected to continue before culminating in termination, especially where, as here, the employee alleges that the employer is attempting to force her to quit.

         Therefore, based on the close nexus between the facts supporting Plaintiff's January 2016 and April 2017 Charges and her current Title VII and DDEA wrongful termination claims, Plaintiff has satisfied the administrative exhaustion requirements of Title VII and the DDEA with respect to her wrongful termination claims, and Defendant is not entitled to summary judgement on those claims on that basis.

         2. Retaliation Claims

         Next, Defendant argues that it is entitled to summary judgment on the substance of Plaintiff's Title VII and DDEA retaliation claims because she allegedly fails to provide sufficient evidence connecting her termination to a retaliatory animus. (D.I. 65 at 1). Plaintiff argues that she can prove these claims either via “direct evidence, ” presumably meaning under the “mixed motive” theory initially approved in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), or, alternatively, through the three-step burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). (D.I. 71 at 11-13, 15). The Supreme Court, however, has ruled that “the mixed motive analysis set forth in Price Waterhouse, and subsequently codified in the Civil Rights Act of 1991, ” is applicable to discrimination based on “race, color, religion, sex, or national origin, ” but “is not applicable to retaliation claims, ” which are governed by a separate provision of Title VII. Univ. of Tex. Southwestern Med. Center v. Nassar, 570 U.S. 338, 351-53 (2013) (“Title VII's antiretaliation provision, which is set forth in § 2000e-3(a), appears in a different section from Title VII's ban on status-based discrimination. . . . When Congress wrote the motivating-factor provision in 1991, it chose to insert it as a subsection within § 2000e-2, which contains Title VII's ban on status-based discrimination . . . and says nothing about discrimination. . . . This fundamental difference in statutory structure renders inapposite decisions which treated retaliation as an implicit corollary of status-based discrimination.”); see also, Egan v. Delaware River Port Auth., 851 F.3d 263, 272-73 (3d Cir. 2017) (noting that, in Nassar, the Supreme Court “recognized that different causation standards may apply to different claims”); Rumanek v. Indep. Sch. Mgmt., Inc., 50 F.Supp.3d 571, 578 n.4 (D. Del Jan. 10, 2014). Thus, only Plaintiff's McDonnell Douglas argument is relevant here. See, e.g., Rumanek, 50 F.Supp.3d at 578.

         Under McDonnell Douglas's three-step burden-shifting framework, Plaintiff must first make out a prima facie case of retaliatory discrimination. Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 193-94 (3d Cir. 2015). If she is successful, the burden of production shifts to Defendant to articulate a “legitimate, non-retaliatory reason for having taken the adverse action.” Id. If Defendant successfully completes this second step, Plaintiff then has the opportunity to present evidence indicating that Defendant's reason(s) are mere pretext for a retaliatory motive. Id. Although the burden of production shifts back and forth, Plaintiff “has the ultimate burden of persuasion at all times.” Id. (citing Reeves, 530 U.S. at 143).

         a. Prima Facie Case

         To establish a prima facie case of retaliation under Title VII, Plaintiff must present evidence indicating that she engaged in protected activity, suffered an adverse employment action contemporaneous with or after engaging in that protected activity, and a causal link exists between the protected activity and the adverse employment action. See, e.g., Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 320 (3d Cir. 2008); see also Daniels, 776 F.3d at 193-94. Defendant assumes, for summary judgment purposes only, that Plaintiff can establish the first two elements.[9] (D.I. 65 at 13). Thus, the Court focuses on the third - whether Plaintiff has presented sufficient evidence of a causal link between a protected activity and an adverse employment action taken against her to create a genuine issue of material fact. Yet assessing the third element requires, by definition, identifying at least one qualifying protected activity and one qualifying adverse event. As Defendant admits, (D.I. 65 at 14 n.16, 17-18), Plaintiff's two relevant EEOC charges and her termination qualify for these categories, respectively. See also, e.g., Leboon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 232 & n.9 (3d Cir. 2007). The Court, therefore, assesses whether Plaintiff has sufficiently established a causal connection between her two EEOC charges and her termination to survive summary judgment.

         The causal connection element of a retaliation claim may be satisfied by “a broad array of evidence, ” id. at 232 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 284 (3d Cir. 2000)), including any “pattern of antagonism” or evidence of retaliatory animus following the protected conduct, temporal proximity between the protected activity and the adverse employment action, the use of “inconsistent reasons” for adverse action, or any other evidence “from which causation can be inferred, ” Farrell, at 280-81. See also Daniels, 776 F.3d at 193-94. Temporal proximity can be sufficient on its own, but only if “‘unusually suggestive' of a retaliatory motive.” Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (citations omitted); see also Daniels, 776 F.3d at 193-94 (citing Leboon, 503 F.3d at 232).

         Plaintiff asserts that the following constitutes “direct evidence” that Defendant took adverse action against her in retaliation for her complaints of workplace discrimination[10]:

• Deposition testimony and affidavits of four Clayton Plant employees indicating that supervisors were trying to make Plaintiff quit:
o Former Clayton Plant employee Kisha Dickson stated in an affidavit that one of Defendant's supervisors, Jaime Dobies, “said he was trying to make [Plaintiff] quit. I heard Mr. Dobies and other employees take bets on how long it would take for [Plaintiff] to quit, ” (D.I. 71 at 12; see also D.I. 71 Ex. A ¶ 5),
o Former Clayton Plant employee Aretta Butler stated in her deposition that Jaime Dobies gave Plaintiff “all the worst jobs that he could give her” in “2017, ” (D.I. 71 at 12; see also D.I. 71 Ex. C at 33:24 - 34:8),
o Former Clayton Plant employee Karriem Keys stated in his deposition that Jaime Dobies said he “had it out” for Plaintiff, (D.I. 71 at 12; see also D.I. 71 Ex. D at 156:17-22, 160:20-161:2),
o Former Clayton Plant employee Pamela Joseph stated in an affidavit “My supervisors were hard on [Plaintiff]. . . . They would give her conflicting instructions so that she wouldn't be able to follow all of the instructions. . . . I overheard them say that they would get rid of her one way or another. I overheard them say they would put her on certain jobs to make her quit, ” (D.I. 71 at 12; see also D.I. 71 Ex. B ¶ 12);
• Deposition testimony of former Clayton Plant employee Aretta Butler allegedly “characterize[ing] Dobies' comments as repeating what was said in [H.R.], ” (D.I. 71 at 13; see also 71 Ex. C at 32:14 - 33:9);
• Note in Plaintiff's H.R. file that reads: “Darlene is saying we are discriminating . . . . She is making our good people quit because of grievances & not being able to do her job, ” (D.I. 71 at 13; see also D.I. 71 Ex. E);
• An alleged “pattern of disciplining employees [at the Clayton Plant] right after they complained about racism, ” evidenced by:
o A former Clayton Plant employee who complained about “anti-black racism” being “written up” and terminated at a meeting to discuss those complaints, (D.I. 71 at 13; see also D.I. 71 Ex. G at 62:23-25, 65:24-66:4; D.I. 71 Ex. F);
o A former Clayton Plant employee being “written up” by a supervisor “for an incident in which [the employee] was not even present” seven days after the employee complained about the same supervisor's use of a racial slur, (D.I. 71 at 13; see also D.I. 72 Ex. H);
o The former Clayton Plant shop steward who “helped [Plaintiff] lodge complaints, ” - Aretta Butler - being “terminated on the same day as [Plaintiff] for the same reason - ‘no call, no show' - even though [she] called” an H.R. representative about her absence in ...

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