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Day v. Finishing Brands Holdings, Inc.

United States District Court, W.D. Tennessee, Eastern Division

May 14, 2015



J. DANIEL BREEN, Chief District Judge.


Before the Court is Defendant, Finishing Brands Holdings, Inc.'s ("FB"), motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket Entry ("D.E.") 71.) Plaintiff, Jerry Wayne Day ("Day"), filed a response to which FB replied. (D.E. 75, 89.) Plaintiff, with the Court's permission, submitted a sur-reply. (D.E. 99.) For the reasons discussed below, Defendant's motion is GRANTED IN PART and DENIED IN PART.

Evidentiary Matters

I. Plaintiff's Objections to Defendant's Statement of Undisputed Material Fact

Plaintiff has lodged evidentiary objections to Defendant's Statement of Undisputed Material Facts ("SUMF"), contending that many of the paragraphs violate the district's local rule on conciseness, and that two statements are inadmissible hearsay. ( See Plaintiff's Responses to Statement of Undisputed Material Facts in Support of Finishing Brands Holdings, Inc.'s Motion for Summary Judgment" ("RSUMF") ¶¶ 3-7, 10, 12-15, 17-19, 21, 23-25, 27-30, 33-38, 40, 43-46, 50-52, 56-57, 63, 65, 71, 74, 78-79, D.E. 75-1.)

A. Conciseness

In this district, the party moving for summary judgment, "[i]n order to assist the Court in ascertaining whether there are any material facts in dispute, " is required to provide "a separate, concise statement of the material facts as to which the moving party contends there is no genuine issue for trial." LR 56.1(a), Local Rules of the United States District Court for the Western District of Tennessee ("Local Rules"). Any objections to evidentiary materials offered in support of, or in opposition to, a summary judgment motion must be included in the response or reply and identify the Rule of Evidence or other authority that establishes that evidence's inadmissibility. See Local Rule 56.1(e).

The local rules, and opinions from this district, do not define "concise statement." However, in denying a plaintiff's motion to strike a portion of the defendant's statement of undisputed material facts on conciseness grounds, the United States District Court for the Middle District of Tennessee held that the defendant did not violate that district's similarly-worded local rule because the employment dispute at issue involved several incidents occurring over a period of time. See Thompson v. Davidson Transit Org., 740 F.Supp.2d 938, 938-39 (M.D. Tenn. 2010). Similarly, this case involves allegations of employment discrimination covering an extended period of time. Defendant's SUMF is not unnecessarily lengthy-it is seventeen pages long, and consists of seventy-nine numbered paragraphs that address the relevant facts underlying this lawsuit. Plaintiff's objections are OVERRULED.

B. Hearsay

Day objects to SUMF ¶¶ 52 and 57 on hearsay grounds, but has failed to "identify the Rule of Evidence or other authority that establishes [the] inadmissibility of the proffered evidence" as required by Local Rule 56.1(e). Plaintiff's objections are OVERRULED. See Hillman v. Shelby Cnty., No. 05-2052-STA-tmp, 2012 WL 681778, at *1 (W.D. Tenn. Feb. 29, 2012) (overruling a plaintiff's objections because she "did not reference a specific Rule of Evidence" or "cite to other authority establishing the inadmissibility of the evidence offered" by the defendant and instead offered "[b]road, sweeping, generalized objections" that were "insufficient to satisfy the requirements of the Local Rules[.]"). Regardless, the statements are not inadmissible hearsay because they are only being offered to show their effect on the listeners, and not for their truth. Rhoades v. Standard Parking Corp., 559 F.Appx. 500, 506 (6th Cir. 2014) (citing Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 379 (6th Cir. 2009)).

II. Defendant's Objections to Plaintiff's RSUMF

FB requests the Court disregard or strike a majority of Day's RSUMFs on the grounds that they are unresponsive, lengthy, and argumentative statements consisting of legal conclusions, opinions, and speculation in violation of Local Rule 56.1(b). (D.E. 89 at 2.) FB also accuses Day's counsel of inventing facts that are unsupported by any evidence in the record. ( Id. at 2-3.)

A. Motion to Strike/Disregard

Local Rule 56.1(b) provides that non-movants "must respond to each fact set forth by the movant by either: (1) agreeing that the fact is undisputed; (2) agreeing that the fact is undisputed for the purposes of ruling on the motion for summary judgment only; or (3) demonstrating that the fact is disputed." Local Rule 56.1(b). The disputed facts must be accompanied by "specific citations to the record supporting the contention that such fact is in dispute." Id. The non-movant's response "may contain a concise statement of any additional facts that the non-movant contends are material and as to which the non-movant contends there exists a genuine issue to be tried." Id.

In this matter, Day submitted a fifty-four page RSUMF in response to Defendant's seventeen page SUMF. He concedes that only seventeen paragraphs are undisputed for the purposes of Defendant's summary judgment motion. (RSUMF ¶¶ 1-2, 8, 19, 26, 29, 32, 34, 37, 41-42, 46-47, 58, 61, 70, 72, D.E. 75-1.) The rest of his responses contain a varying degree of argument, additional facts-some of which are immaterial-and speculation. The Court has considered both Defendant's SUMF and Plaintiff's RSUMF in determining which material facts are undisputed for the purposes of this motion. Therefore, Defendant's motion to strike is DENIED.

B. Invention of Facts

Defendant labels as false Plaintiff's statement that his employment status was changed from exempt to non-exempt in retaliation for complaining about his supervisor. (D.E. 89 at 2.) Defendant provided copies of Day's payroll records, which denoted him as a salaried employee. (D.E. 90-3 at 3-7.) Day responds by pointing out that discovery provided by Defendant initially listed his position as "FLSA Status - Exempt", but on August 10, 2011 the Corporate HR Manager met with him to review a revised job description listing his status as "FLSA - Non-Exempt". (D.E. 99 at 3-5; D.E. 76-13 and 99-3.) Based on this, the Court cannot conclude that Plaintiff's counsel has invented or mischaracterized this fact.

Defendant also challenges the veracity of Day's statement that the company refused to investigate allegations that a co-worker was accessing his computer. (D.E. 89 at 3.) Day counters by citing to portions of the Corporate HR Manager's deposition where she testifies that she was unsure what kind of investigation, if any, was conducted into his tampering allegations. (D.E. 99 at 5.) Plaintiff also states that FB never produced any discovery showing that an investigation was conducted. ( Id. at 5-6.) Based on these submissions, the Court cannot conclude that Plaintiff's counsel has mischaracterized this fact.


Unless otherwise noted, these facts are undisputed. On February 18, 2010, Jerry Day, an African American male, applied for a Facilities Administrative Coordinator ("FAC") position at FB's Jackson, Tennessee facility. (SUMF ¶ 6.) The FAC position was created because Mitchell Hall ("Hall"), the facility's Human Resources Manager, retired in 2009. ( Id. ¶¶ 4-5.) Day was interviewed by Tina Kaveney ("Kaveney"), FB's corporate Human Resources Manager, and Bob Battle ("Battle"), the Jackson, Tennessee operations manager. ( Id. ¶¶ 4-6.) On June 1, 2010, Day was offered and accepted the FAC position, and received a starting salary of $45, 000. ( Id. ¶ 7.) He was employed as the FAC through August 13, 2012. ( Id. ¶ 67.)

Following his June hire, Day received a job description for the position, an employee handbook, and reviewed and signed the company's "Computer, E-mail, Internet and Communications" policy. ( Id. ¶¶ 8-10.) The FAC position was classified as exempt under the Fair Labor Standards Act ("FLSA") and required Day to report directly to Battle. (D.E. 68-2 at 9; SUMF ¶ 7.) On July 12, 2010, Betty Schultz ("Schultz"), who was based in FB's Toledo, Ohio office, replaced Kaveney and became the corporate HR Manager for all the FB facilities, including Jackson. ( Id. ¶ 13.)

On August 9, 2010, Battle sent an email to the Jackson staff clarifying which duties the employees were responsible for following Day's hire. (D.E. 68-2 at 12.) Battle thought this email was necessary since some of Hall's responsibilities had been assumed by other employees in the period between his retirement and Day's hire. ( Id. ) On February 16, 2011, Day sent an email to Schultz, complaining about employees undermining him and questioning his authority. (D.E. 68-2 at 16.) During this time, Battle occasionally introduced Day as the plant's Human Resource Manager and told him that he was required to be at the Jackson facility any time Battle was out of the office. (SUMF ¶ 16.)

I. July 13, 2011 Complaint and First Written Warning

On July 13, 2011, Day complained to Schultz that he was being subjected to a hostile work environment created by two co-workers, Mike Ross, an IT employee based in Glendale Heights, Illinois, and Whitney Chandler, the company's cost accountant based in Jackson, Tennessee. ( Id. ¶ 21.) Plaintiff alleged that they were interfering with his work and attempting to sabotage him. ( Id.; D.E. 76-11 at 52-57.) Attached to Day's complaint was a string of emails between Ross and Chandler which he admitted he accessed, reviewed, and printed without their consent. ( Id.; SUMF ¶¶ 21-22.) None of these emails were addressed to Day. ( Id. )

On August 1, 2011, Schultz gave Day a written Policy Violation Notice for reviewing employee emails without appropriate authorization and warned him that any repeat violations would result the issuance of a final warning. (D.E. 95-2 at 9.) The August 1, 2011 violation stated that "[e]ven though, as an IT person, you have access to employee e-mails, you still need appropriate authorization to do an investigation into other employee e-mails. Appropriate authorization from the HR Manager will be needed if there is to be an investigation regarding employee emails or any other IT." ( Id. ) Chandler and Ross received written warnings for blind-carbon copying email correspondence with Day. (SUMF ¶ 26.) Schultz told Day that this written warning would remain in his personnel file for six months as per company policy. (RSUMF ¶ 24.)

II. July 18, 2011 Complaint

On July 18, 2011, Plaintiff sent a written complaint to Schultz asking for an investigation into Battle's creation of a hostile work environment, and that he be removed as operations manager. ( Id. ¶ 31; D.E. 95-2 at 16-17.) He alleged that Battle yelled and used profanity towards him and other employees, and had intimidated him, causing stress-related illnesses. ( Id. ) Day recalled Battle using racially discriminatory remarks towards him and a female employee. ( Id. ) He also accused Battle of engaging in sexual harassment towards female employees, including using pet names and informing one female employee that she would be staying in his hotel room when the two traveled on company business. ( Id. ) Finally, Plaintiff stated that Battle was intentionally hindering his ability to perform his duties as FAC and had threatened him with termination on several occasions. ( Id. ) On July 19, 2011, Schultz traveled to Jackson to conduct an investigation into the complaints, interviewing Day, Battle and other FB employees. (SUMF ¶ 32.)

Schultz determined that Battle had not engaged in any race discrimination or harassment, but did find that his management style needed to be improved and monitored. ( Id. ¶ 35.) Day would now report directly to Schultz, Battle's office was moved away from Day's, and Battle was required to attend leadership training to address his management style. ( Id. ¶ 36.)

III. November 16, 2011 Written Warning and Complaint

On October 10, 2011, Battle believed that Plaintiff might be accessing his work computer through the company's server and asked that the issue be investigated. (SUMF ¶ 42.) After an investigation, it was determined that Day's login had been accessing Battle's files. ( Id. ¶ 44.) On November 16, 2011, Day was issued a "final" Policy Violation Notice for continuing to review emails and documents of the Jackson management team, copying those documents to his own computer, and doing so without appropriate authorization as was required per the August 1, 2011 written warning. ( Id. ¶ 45; D.E. 95-2 at 73.) Day was warned that any repeat violations would result in his termination. ( Id. ) On November 16, 2011, Day sent another complaint to Schultz, alleging that he was being paid less than Hall for the same amount of work. (D.E. 76-17 at 2.)

IV. Spare Parts Organization/Budget Overrun and April 24, 2012 Complaint

The Glendale Heights, Illinois facility housed FB's spare parts operation ("SPO"), which was managed by Pete Kurtz ("Kurtz"). (Dep. of Bob Battle ("Battle Dep.") at 104, D.E. 76.) Sometime in 2011, the decision was made to relocate the SPO to the Jackson, Tennessee facility. ( Id. at 211.) The Jackson facility would hire temporary employees from local employment agencies on an as-needed basis to help with the transition. ( Id. at 214-15.)

The hiring process for temporary employees involved the production manager informing the operations manager that more help was needed. ( Id. ) That request would then be taken to the FAC, who would contact the employment agency to arrange for an employee to be sent over. ( Id. ) The process was informal and usually involved no written paperwork other than the FAC's email to the employment agency. ( Id. at 215-16.) This was in contrast to the hiring of permanent employees, which required a requisition approval process and a sign off by either the operations manager or production manager and FB's Vice President and General Manager, Thomas White ("White"). ( Id. at 216-17.) After the relocation, Kurtz was named operations manager for the Jackson facility on April 1, 2012. ( Id. at 229.) Battle had been promoted to manufacturing manager in 2011, and director of operations in 2012. ( Id. at 77.) He still kept an office in Jackson even though he traveled extensively. ( Id. at 31.)

In May 2012, White reviewed FB's budget and asked Battle to investigate why temporary labor costs were so high in the Jackson facility. (SUMF ¶ 50.) Battle gathered data on the temporary employees' pay rates and overtime hours worked in SPO. (Battle Dep. at 226-29, D.E. 76.) He directed Kurtz to conduct an investigation into the temporary employees' pay rates. ( Id. at 229-30.) It was discovered that certain temporary employees' rates of pay were unusually high, and that Day had made those adjustments directly with the employment agencies. ( Id. at 240-41; Dep. of Jerry Day ("Day Dep.") at 702-03, D.E. 76-10.)

FB had no written policy that required FACs to obtain written approval from the operations manager before approving a temporary employee pay increase, but Kurtz considered it a "common business practice" that approval should be sought before the FAC adjusted a temporary employee's salary. (Dep. of Pete Kurtz ("Kurtz Dep.") at 132-33, D.E. 78-15; Battle Dep. at 259, D.E. 76.) On June 27, 2012, Kurtz and Schultz met with Day to discuss the pay increases. (SUMF ¶ 56.) At this meeting, Day admitted to making the adjustments and claimed that he had been given this authority by Kaveney when he was hired. ( Id. )

On April 24, 2012, Day sent Schultz another complaint alleging that Battle was not supporting him in a dispute with a third-party vendor. (D.E. 95-2 at 87.) According to Plaintiff, Battle failed to include him in staff meetings and communications and violated federal law in his handling of internal hiring decisions. ( Id. ) Day threatened to quit unless there was improvement in the work environment. ( Id. )

V. June 28, 2012 Complaint and July 6, 2012 EEOC Charge

On June 28, 2012, the day after Kurtz and Schultz met with Day to discuss the temporary employee raises, he requested another investigation because he believed Battle was still creating a hostile work environment and retaliating against him. (SUMF ¶ 58; D.E. 95-2 at 95-97.) Plaintiff alleged that Battle refused to speak to him at work, undermined his decisions, and failed to address the temporary employee budget overrun. ( Id. ) On July 6, 2012[1], Day filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of race, retaliation based on race, and a hostile work environment. (D.E. 78-20.)

VI. August 13, 2012 Termination

On July 13, 2012, Battle and Kurtz recommended that Day be terminated for approving unauthorized pay increases for temporary employees. (SUMF ¶ 62.) After reviewing the investigation, Schultz agreed. ( Id. ¶ 64.) The recommendation was given to White, who made the final decision to fire Day. ( Id. ¶ 65.) White concluded that Day's unilateral adjustment of these wages was unauthorized and outside the scope of his own authority. ( Id. ) White also noted Day's two prior written warnings supported the termination decision. ( Id. ) Day's employment ended on August 13, 2012. (D.E. 78-14.)

On July 25, 2012 and September 14, 2012, Day submitted amended charges to the EEOC, which issued a right-to-sue notice on February 28, 2013. (D.E. 68-3 at 6-9.) He brought suit on March 12, 2013, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the Tennessee Human Rights Act ("THRA"), Tenn. Code Ann. § 4-21-101, et seq., the Tennessee Public Protection Act ("TPPA"), Tenn. Code Ann. § 50-1-304, and Tennessee common law. (D.E. 1.)

Legal Standard

Rule 56 provides in pertinent part that "[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." Fed.R.Civ.P. 56(a). The court is to "view facts in the record and reasonable inferences that can be drawn from those facts in the light most favorable to the nonmoving party." Burns v. Mahle Engine Components USA, Inc., ___ F.Appx. ___, No. 13-2324, 2015 WL 1427147, at *3 (6th Cir. Mar. 31, 2015) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). It is not to "weigh evidence, assess credibility of witnesses, or determine the truth of matters in dispute." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014) (quoting Anderson, 477 U.S. at 251-52).

The moving party "has the initial burden of showing the absence of a genuine dispute as to a material fact." Automated Solutions Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 520 (6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the motion is properly supported, "the opposing party must go beyond the contents of its pleadings to set forth specific facts that indicate the existence of an issue to be litigated." Slusher v. Carson, 540 F.3d 449, 453 (6th Cir. 2008) (citation omitted). The nonmoving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson, 477 U.S. at 248. The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Id. A court must grant summary judgment "after adequate time for discovery and upon motion, 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, 477 U.S. at 322.


I. Race Discrimination

Title VII makes it unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race...." 42 U.S.C. § 2000e-2(a)(1). So does the THRA. See Tenn. Code Ann. § 4-21-401(a)(1). The analysis of claims brought under both statutes is identical. Bailey v. USF Holland, Inc., 526 F.3d 880, 885 n.1 (6th Cir. 2008). Plaintiffs can establish a race discrimination claim "by introducing direct evidence of discrimination or by presenting circumstantial evidence that would support an inference of discrimination." Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997)).

When claims, like the ones here, are based on circumstantial evidence, courts use the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. Under this framework, the "[p]laintiff first carries the burden of establishing a prima facie case" by showing that "1) he is a member of a protected class; 2) he was qualified for the job and performed it satisfactorily; 3) despite his qualifications and performance, he suffered an adverse employment action; and 4) he was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside of his protected class." Id. at 727. Once a plaintiff establishes a prima facie case, the burden "shifts to the employer to offer a legitimate, non-discriminatory explanation for its actions; finally, the burden shifts back to the plaintiff to show pretext.'" Shazor v. Prof'l Transit Mgmt., Ltd., 744 F.3d 948, 957 (6th Cir. 2014) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)). To survive summary judgment, a plaintiff only has to "produce enough evidence to support a prima facie case and to rebut, but not to disprove, the defendant's proffered rationale.'" Id. (quoting Griffin v. Finkbeiner, 689 F.3d 584, 593 (6th Cir. 2012)).

Day recalls several incidents of race discrimination by FB: (1) receiving less pay than Hall, the Caucasian employee he replaced; (2) refusing to change his job title from FAC to HR Manager; (3) refusing to place him on the company's "high potential" list; (4) giving him two undeserved written warnings; and (5) terminating his employment. (D.E. 75 at 3.) As to each incident, FB takes the position it is entitled to summary judgment because Day has either not made out a prima facie case, or has not shown that FB's legitimate, non-discriminatory reasons were pretextual. (D.E. 71-1 at 6-17.)[2]

A. Pay Disparity [3]

The United States Supreme Court has held that disparity in pay between an African American employee and a similarly situated Caucasian employee can serve as the basis for a Title VII lawsuit. Bazemore v. Friday, 478 U.S. 385, 395-96 (1986). "A plaintiff may establish a prima facie case of wage discrimination by showing an employer paid higher wages to an employee outside of the protected class for substantially equal work." Woods v. FacilitySource LLC, No. 2:13-CV-621, 2015 WL 247980, at *6 (S.D. Ohio Jan. 20, 2015), appeal docketed, No. 15-3138 (6th Cir. Feb. 19, 2015) (citing Kovacevich v. Kent State Univ., 224 F.3d 806, 826-28 (6th Cir. 2000)). "[T]he analysis of unequal pay for equal work is essentially the same under both the Equal Pay Act [("EPA")] and Title VII." Hicks v. Concorde Career Coll., 695 F.Supp.2d 779, 791 (W.D. Tenn. 2010) (citing Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir. 1981)); see also Beck-Wilson v. Principi, 441 F.3d 353, 369 (6th Cir. 2006) ("A Title VII claim of wage discrimination parallels that of an EPA violation insofar as it incorporates the EPA's affirmative defenses.").

"If a plaintiff establishes a prima facie case of wage discrimination under the EPA [or Title VII], an employer can establish an affirmative defense by showing that its compensation decision was based on (1) seniority; (2) merit; (3) a system which measures earnings by quantity or quality of production; or (4) any factor other than [race]." Mallison v. Haworth, Inc., 488 F.Appx. 88, 91 (6th Cir. 2012) (citations and internal quotation marks omitted). "The employer bears the burden of establishing that its proffered explanation for the wage differential is true. If it does, the burden returns to the plaintiff to show that the employer's explanation is pretextual." Id. (citations omitted).

FB asserts that paying Day less than Hall is not actionable race discrimination since it made the business decision not to replace Hall with another Human Resources Manager, but instead created a position with a different title, responsibilities, and pay rate. (D.E. 71-1 at 9; D.E. 89 at 6-7.) Further, the two men are not similarly situated because Hall was employed with the company for several years and held a management-level position with supervisory authority, in contrast to Day's position, which had no supervisory authority. ( Id. ) Plaintiff maintains that FB should be judicially estopped from insisting that he was not a manager or supervisor, since his position was categorized as exempt under FLSA. (D.E. 75 at 5.) Day also claims that he and Hall had the same duties, job descriptions, and reported to the same superiors, making him an appropriate comparator. ( Id. at 5-6.) Day states that Kaveney told him at the time of his hire that he was completely in charge of the HR and IT responsibilities in Jackson and that he was introduced by Battle and Kaveney as the facility's HR Manager. ( Id. )

1. Judicial Estoppel

Day's reliance on judicial estoppel against FB's position that he was not a supervisor or manager is based on his listing as an "exempt" employee under FLSA. (D.E. 75 at 5-6.) Defendant responds that FLSA's exemptions are not limited to management-level positions, but also include employees who primarily handle computer-related duties, like Day did for the Jackson facility. (D.E. 89 at 7-8.) Plaintiff contends that his exempt status cannot be founded on his IT duties because 29 C.F.R. § 541.400(a)-(b) states that the IT exemption only applies to employees whose primary duties were computer related, while IT was only part of his responsibilities. (D.E. 99 at 12-14.)

The United States Supreme Court has summarized the doctrine of judicial estoppel as follows: "[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.'" New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680. 689 (1895)). Judicial estoppel "generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.'" Id. (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)).

The rule's purpose is to protect the integrity of the judicial process by preventing litigants from changing positions when beneficial. Id. at 749-50. The Supreme Court has set forth three factors that courts should consider before deciding if judicial estoppel applies: (1) whether a litigant's later position is "clearly inconsistent" with an earlier position; (2) whether the party has "succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled"; and (3) would the party asserting an inconsistent position "derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." Id. at 750 (internal quotation marks and citations omitted). "Judicial estoppel must be cautiously applied to avoid impingement on the truth-seeking function of the courts." Trimas Corp. v. Meyers, 572 F.Appx. 347, 353 (6th Cir. 2014) (citing Lorillard Tobacco Co. v. Chester, Wilcox & Saxbe, 546 F.3d 752, 757 (6th Cir. 2008)).

Day has not explained how FB's argument that he was not a manager or supervisor like Hall is "clearly inconsistent" with an earlier position the company has taken in this, or any other litigation. Maine, 532 U.S. at 749-50. While Plaintiff contends that being listed as FLSA-exempt can only mean that he was a manager or supervisor, the exemption under 29 U.S.C. § 213(a)(1) also includes employees who work in a bona fide administrative capacity. See Renfro v. Indiana Michigan Power Co., 370 F.3d 512, 516-19 (6th Cir. 2004) (demonstrating the analysis used for determining whether the administrative exemption applies to certain types of employees). He has not alleged, nor has FB disputed, any violation of the federal wage laws in this, or any other litigation. Day's request for judicial estoppel is without merit and DENIED.

2. Similarly Situated Employee [4]

"In a Title VII case where the plaintiff seeks to compare [himself] to another employee, [he] must prove that all relevant aspects of [his] employment situation were similar to those of the other employee." Conti v. Universal Enters., Inc., 50 F.Appx. 690, 699 (6th Cir. 2002) (citing Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)). The Sixth Circuit addressed the requirements for finding two employees to be similarly situated in the disciplinary context in Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992) and Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998). However, the factors set forth in those cases "have little, if any, relevance to the inquiry of whether employees are similarly-situated for purposes of resolving a [race]-based wage discrimination claim under Title VII." Conti, 50 F.Appx. at 699. The relevant factors concerning similarly situated employees in order to decide a wage discrimination claim under Title VII include

those aspects of the employment situation which must be examined in determining whether the plaintiff and a [Caucasian] employee performed "equal work" as that term is defined for purposes of the Equal Pay Act. Thus, the relevant factors include the skill, effort, and responsibilities of each job and the working conditions under which each job is performed.

Id. "Differences in job title, responsibilities, experience, and work record can be used to determine whether two employees are similarly situated." Leadbetter v. Gilley, 385 F.3d 683, 691 (6th Cir. 2004) (citation omitted).

Courts "should make an independent determination as to the relevancy of a particular aspect of the plaintiff's employment status and that of the non-protected employee." Ercegovich, 154 F.3d at 352. In this context, "[t]he plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment in order for the two to be considered similarly-situated; rather, ... the plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be similar in all of the relevant aspects." Id. (emphasis in original) (citation and internal quotation marks omitted).

a. Mitch Hall

Day alleges that he and Hall are similarly situated because their job descriptions were similar, they reported to the same supervisor, he was introduced as the plant's HR Manager, was told by Battle and Kaveney that he was responsible for HR, and was categorized as an exempt employee under FLSA. (D.E. 75 at 5-6.) FB asserts that Hall is not an appropriate comparator because Plaintiff was hired as a FAC after the company made the business decision to change how HR functions were handled at each facility. (D.E. 71-1 at 9.) Further, FB notes that Day's position was classified as administrative with no supervisory function, while Hall, who had years of experience with Defendant, had supervisory authority. (D.E. 89 at 6-7.)

Hall is not an appropriate comparator for the purpose of Day's wage discrimination claim. He has failed to provide any evidence regarding Hall's tenure at FB, what his responsibilities were, or what prior experience Hall had. Day testified that Tony Walker, a quality manager, could offer testimony corroborating that he performed all of the same functions as Hall, (Day Dep. at 751-52, D.E. 76-10), but did not provide an affidavit or declaration from the witness. Day also offers Schultz' testimony that "there's a great deal of personnel issues that [she doesn't] handle for the Jackson plant, " as evidence that he was responsible for most of the HR duties in Jackson. (D.E. 75 at 5.) In her deposition, Schultz was being questioned about the company's policies for employee leave requests under the Family Medical Leave Act ("FMLA"), COBRA benefits, and worker's compensation claims. (Schultz Dep. at 174-79, D.E. 75-5.) She testified that an employee would complete a form and send it directly to Graco. ( Id. at 177-78.) This is not evidence that Day was the HR Manager of the Jackson facility, as Schultz also testified that during the period Day was employed, his only role in these processes was to confirm the employee completed the form. ( Id. at 175-76.)

Day also notes that Kaveney told him he was in charge of "everything" related to HR and IT in the Jackson facility when he was hired. (D.E. 75 at 5.) However, this testimony does not explain what "everything" means for a FAC as compared to "everything" Hall was responsible for as HR Manager. Day states that Battle sent an organizational announcement on May 19, 2010 introducing him to the staff, stating that "Jerry will be responsible for Human Resources and IT functions here in Jackson." ( Id.; D.E. 76-3 at 11.) Again, this does not help the Court determine whether Day and Hall were similar in all relevant aspects. Ercegovich, 154 F.3d at 352.

The only other proof Day has submitted are his and Hall's year-end "goals and objectives" handout they each received from FB. However, "[t]he pertinent inquiry must focus on the actual requirements and performance of the jobs in question." Conti, 50 F.Appx. at 697. Like the plaintiff in Conti, Day has "made only a conclusory allegation... that [his] job duties were substantially equal to those of [a] comparable [Caucasian] employee[] that [was] paid significantly more." Id. (quotation marks omitted); Hicks, 695 F.Supp.2d at 793 (granting summary judgment in favor of the defendant because the plaintiff failed to demonstrate that his comparators were similarly situated). As such, he has not shown that he and Hall were similarly situated employees and has not set forth a prima facie case of wage discrimination.

b. Cheryl Eckert

Day also points to Cheryl Eckert, an HR assistant in the company's Illinois office, as an appropriate comparator who was paid more than him even though she performed mostly clerical duties, had no IT ...

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