UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHERYL HUBBELL

Plaintiff,

CASE NO. 14-13897

v. HON. GEORGE CARAM STEEH

FEDEX SMARTPOST, INC.,

Defendant.

 /

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT (DOC. 19) AND GRANTING IN PART AND DENYING IN

PART DEFENDANT’S MOTION TO STRIKE THE MCCLOSKEY AFFIDAVIT (DOC. 25)

This is a case alleging discrimination and retaliation under Title VII of the Civil

Rights Act of 1964. Plaintiff Sheryl Hubbell (“Hubbell”) was employed by FedEx

SmartPost (“FedEx”) at its Belleville, Michigan, facility (the “Detroit facility”). In Count 1,

Hubbell claims that her supervisors at FedEx demoted her from a “lead parcel sorter”

position on the basis of her sex. In Count 2, Hubbell claims that her supervisors

retaliated against her after she filed an EEOC charge concerning the demotion. Count

3 alleges hostile work environment on two different theories: sex-based harassment and

retaliatory harassment. And in Count 4, which Hubbell added in her amended

complaint, Hubbell alleges that her supervisors terminated her in retaliation for filing the

instant lawsuit.

Now before the court are two motions: FedEx’s motion for summary judgment

(Doc. 19) and FedEx’s motion to strike the affidavit of Rebecca McCloskey (Doc. 25). 

The motion to strike is collateral to the summary judgment motion. For the reasons

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explained below, the Court will grant the motion to strike in part and deny it in part. The

Court will not strike the affidavit of Rebecca McCloskey, but the Court will allow FedEx

to depose her. For the reasons explained below, the Court will grant the summaryjudgment motion in part and deny it in part. The Court will dismiss Count 3 but will not

dismiss Count 1, 2, or 4. 

I. BACKGROUND1

A. FedEx Hires Hubbell and Promotes Her to Lead Parcel Sorter.

FedEx hired Hubbell as a part-time parcel assistant at its Detroit facility in

September 2006. (Hubbell Dep., Pl.’s Ex. 2, at 17). After about a year as a parcel

assistant, Hubbell was promoted to the position of full-time parcel-sorter. (Id. at 22). 

Hubbell worked as a parcel sorter for about three years, and she was promoted to the

position of lead parcel sorter in 2010. (Id. at 23). A lead parcel sorter is a parcel sorter

with some additional supervisory responsibilities. It is not considered by FedEx to be a

management role.

According to Hubbell, during her first few years at FedEx, she received a number

of awards for her exemplary job performance and did not receive any disciplinary writeups. (Hubbell Dep. 122-23, 184). One part of Hubbell’s job as a parcel sorter and then

a lead parcel sorter was to stack parcels on a pallet and wrap the pallet for subsequent

transportation. (See id. at 74-75). According to coworker Alphonse Reed, whose job in

shipping required him to retrieve the loaded pallets from Hubbell’s work area, Hubbell’s

1

 All facts summarized in this section are taken from the evidence in the record,

construed in favor of Hubbell, the non-moving party.

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pallets were “always pretty neat.” (Reed Dep., Pl.’s Ex. 5, at 145).2

 By contrast, under

the supervision of the lead parcel sorters who succeeded Hubbell, the pallets would

sometimes be “leaning over.” (Id.). On this basis, Mr. Reed believes that Hubbell did “a

better job” than her successors. (Id.; see also Reed Aff., Pl.’s Ex. 4, ¶ 15).

B. Leonard Treman Takes Over as Hub Manager at the Detroit Facility

and Tells Hubbell to Step Down as Lead Parcel Sorter.

 In February 2011, after Hubbell had been a lead parcel sorter for about a year,

Leonard (“Todd”) Treman replaced Heather Friend as the senior manager at the Detroit

facility. (Treman Dep., Pl.’s Ex. 1, at 5, 100; Hubbell Dep. 15). Under Mr. Treman’s

watch, many of the managers at the Detroit facility were replaced. (See Reed Dep. 42). 

When Mr. Treman took over in early 2011, there were at least two women in

management roles, but at some point in 2012, there were no longer any female

managers. (See Treman Dep. 31-32; Jensen Dep., Pl.’s Ex. 27, at 22-23; Ocelnik Dep.,

Pl.’s Ex. 28, at 15). Starting in 2013, however, several women were promoted or hired

into management positions. (Treman Dep. 32-34; Jensen Dep. 25, 27-28).

2

 FedEx generally objects to the Court’s consideration of Mr. Reed’s testimony,

arguing that “the majority of Reed’s testimony is based on speculation and innuendo.” 

(See Doc. 26 at 5). Although the Court agrees that some of Mr. Reed’s testimony

apparently fails to satisfy the foundational requirements of Federal Rules of Evidence

602 and 701(a), the Court finds that much of Mr. Reed’s testimony has an adequate

foundation and may therefore be considered. Mr. Reed testified that although he did

not work in Hubbell’s department, he regularly visited Hubbell’s workplace in order to

pick up pallets. He could also observe many of the activities at the Detroit facility from

his work area. In this opinion and order, the Court will only reference those parts of Mr.

Reed’s testimony that have an adequate foundation. Moreover, the Court will not

reference or consider the parts of Mr. Reed’s testimony in which he conclusorily states

that FedEx discriminated or retaliated against Hubbell. See Arendale v. City of

Memphis, 510 F.3d 587, 605 (6th Cir. 2008) (“In order to survive summary judgment,

Plaintiff cannot rely on conjecture or conclusory accusations.”).

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Hubbell testified that in August 2011, Mr. Treman had a private meeting with her

in which he pressured her to step down from her role as a lead parcel sorter. (Hubbell

Dep. 141). Mr. Treman allegedly told Hubbell that women are not well-suited for

management roles. (Id. at 133). Mr. Treman also allegedly said, “[N]ot to sound sexist,

but women are typically better suited to administrative and secretarial roles.” (Id. at

150; see also id. at 180, 222). In his deposition, Mr. Treman repeatedly and

emphatically denied making any such comments. (Treman Dep. 21, 25). In January

2012, Hubbell had a second meeting with Mr. Treman, in which Mr. Treman and others

encouraged her to step down. (Hubbell Dep. 43-44). There is no evidence that Mr.

Treman or other employees made comments about women’s suitability for management

roles at this second meeting.

C. FedEx Managers Allegedly Lay Foundation for Hubbell’s Demotion.

Although the time frame is not exactly clear from the record, at some point in

2011, Mr. Treman and the lower-level managers allegedly began to “set [Hubbell] up to

fail.” (Hubbell Dep. 93). Hubbell testified that Mr. Treman excluded her from important

meetings. (Id. at 223-27). Hubbell also testified that managers started giving her

assignments that would necessarily take her outside of her work area, and they would

then criticize her for failing to supervise the parcel sorters in her work area (Id. at 85-

88). Alphonse Reed stated in his deposition that he observed that Hubbell was

frequently assigned to supervise the “L line,” which Mr. Reed described as “the hard

side” of the Detroit facility because it was particularly busy. (Reed. Dep. 88). After

assigning Hubbell to the L line, management would dismiss the parcel assistants and

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sorters who worked under Hubbell, causing her team’s performance to suffer. (See id.). 

According to Mr. Reed, male lead parcel sorters were also sometimes assigned to the L

line, but they, unlike Hubbell, were given the resources that they needed to complete

their work effectively. (See id. at 88, 101-02). Hubbell ultimately concluded that she

was being “sabotaged,” based on Mr. Treman’s alleged remarks that women are not

suited for management roles and based on what she deemed to be management’s

unreasonable expectations of her. (Hubbell Dep. 93, 140-41, 148-50; see also Reed

Dep. 88-89, 92-94).3

Hubbell received six disciplinary write-ups in 2012 and 2013. (See Hubbell Dep.

122-41; Pl.’s Ex. 8; Pl.’s Ex. 9). Before this time, Hubbell had never received a

disciplinary write-up. (Hubbell Dep. 122). Hubbell testified that a manager “fabricated”

the first “write-up . . . to build a case against [her] . . . because [Hubbell is] a woman.” 

(Id. at 122-23). Hubbell received her second write-up for her “disruptive” reaction after a

manager sent a negative email about her team to all of the other managers. (Id. at 126-

29). At her deposition, Hubbell did not deny that she behaved as alleged, but she

testified that the email had been unfair and that male lead parcel sorters’ teams were

not criticized in the same way. (Id. at 129). The third write-up was for being tardy. 

Hubbell testified that this discipline was unwarranted because she had a valid excuse

3

 Hubbell testified that other employees also believed that she was being

sabotaged. (Hubbell Dep. 151). Such testimony is inadmissible hearsay, and the Court

may not consider it in ruling on the instant summary-judgment motion. These

employees were not managers, and they were not otherwise speaking within the scope

of their employment. See Fed. R. Evid. 801(d)(2)(D); Carter v. Univ. of Toledo, 349

F.3d 269, 275 (6th Cir. 2003). The same analysis applies to Hubbell’s later testimony

that her subordinates thought that she was a good lead parcel sorter. (See Hubbell

Dep. 173). The Court will not consider such testimony.

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for being late. (Id. at 130-31). The fourth write-up was for absenteeism. Hubbell

testified that she should not have received this discipline, because work had been

canceled that day due to a “bad snowstorm.” (Id. at 131). The fifth write-up was also

for absenteeism. Hubbell could not remember the details of the incident, but she

claimed that this write-up, like all of the others, was issued “because [she is] a woman

and because [she] was trying to move up in the company.” (Id. at 134-35). The sixth

disciplinary write-up was for a safety violation. Hubbell testified that her manager lied in

the write-up and that the safety violation never happened. (Id. at 140-41).

In addition to “sabotaging” Hubbell and repeatedly disciplining her, FedEx

management allegedly subjected Hubbell to intense scrutiny during the period following

the 2011 meeting between Hubbell and Mr. Treman. Mr. Reed sometimes observed

“[s]everal managers” standing on a catwalk watching Hubbell. (Reed Dep. 76). Mr.

Reed also stated in his deposition that Hubbell was not “allowed to talk.” (Id. at 28). Mr.

Reed testified that “[w]hen I would go over [to Hubbell’s workplace] and talk to her[,] . . .

[the managers] would come tell me, you know, Al, you don’t have time to talk. But I

could go to somebody else and, you know, talk and they wouldn’t say nothing.” (Id. at

76).4

4

 Hubbell also offered testimony and other evidence that various employees had

told her that they had been questioned by FedEx managers about their interactions with

her. (See Pl.’s Ex. 25; Hubbell Dep. 108-10, 109-10, 116, 251). The Court cannot

consider such testimony and evidence as substantive proof that these employees were

questioned. See supra note 3. However, the Court can and will consider this evidence

as proof that the employees made these statements to Hubbell. The statements

themselves (regardless of whether they were true) could have contributed to a hostile

work environment. See Paasewe v. Action Grp., Inc., 530 F. App’x 412, 414 n.5 (6th

Cir. 2013) (unpublished).

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Hubbell received negative annual performance reviews in 2012 and 2013. (See

Hubbell Dep. 145-50, 171-73; Def.’s Ex. 3). In the 2013 review, in particular, manager

Joshua Ocelnik wrote a number of critical comments about Hubbell, including that

Sheryl seems to struggle with building work relationships with her peers.

Her demeanor is typically very work oriented and leaves little room for the

belief’s [sic] or viewpoints of others. Historically, there have been several

incidents reported to or by management relating to work performance in

which Sheryl has become confrontational and defensive.

(Def.’s Ex. 3). Both annual performance reviews had a self-evaluation section. In 2012,

Hubbell rated herself a perfect five out of five in every category and wrote that

“Management’s comments and ratings are invalid.” (Hubbell Dep. 146). In 2013,

Hubbell refused to rate herself, but she wrote a lengthy narrative response to her

manager’s negative assessment of her:

I disagree with the comments and ratings made by Joshua Ocelnik on my

performance evaluation, as many of his statements are untrue and more

closely resemble a personal attack than a competency evaluation. . . . 

[A]lthough my competencies in the role [of lead parcel sorter] in many

cases exceed the companys [sic] expectations of the lead parcel sorter

position, I am not comfortable to list these examples based on the fact that

I have been harrassed [sic] by the management staff at this facility, and

have been intensely&excessively [sic] micromanaged and scrutinized with

negative attention consistantly [sic] directed toward my positive

contributions and accomplishments by the management staff at this facility

led by Todd Treman, and fear further retaliation. . . .

(Def.’s Ex. 3). After the negative 2013 performance review, Hubbell received only a

three-cent raise. (Hubbell Dep. 231). Mr. Reed stated in his affidavit that “other

employees like myself received a 50 cent raise.” (Reed Aff. ¶ 13).

D. Hubbell Is Demoted to Parcel Sorter.

On August 27, 2013, Hubbell was demoted from lead parcel sorter to parcel

sorter. (Pl.’s Ex. 10). The demotion write-up is signed by manager Joshua Ocelnik and

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a human-resources representative, (see id.), but Mr. Treman testified that he would

have had to approve the demotion, (Treman Dep. 10-11). Hubbell was told about her

demotion at a meeting with Mr. Ocelnik and two human-resources representatives. 

(Hubbell Dep. 180). The individuals present at the meeting did not tell Hubbell that she

was being demoted because of her sex. (See id. at 180-81, 185).

According to the demotion write-up, Hubbell was demoted due to her purported

“fail[ure] to meet the job standards of a Lead Parcel Sorter.” (Pl.’s Ex. 10). She had

allegedly “acted unprofessionally” in meetings on April 8, June 21, and July 11, and she

had failed to cooperate with her performance review in 2013. (Id.). Hubbell had also

allegedly acted “unprofessional[ly] . . . in her interactions with her manager during a

meeting” on August 6. (Id.). At her deposition, Hubbell denied that she had acted

“unprofessionally” on any of the dates listed in the demotion write-up. (Hubbell Dep.

170). Rather, she testified, “I recall stating the truth and that the management staff

would have liked to turn what I had stated into something negative for their benefit to

use to eventually try to demote me because I’m female.” (Id.).

Hubbell was replaced as lead parcel sorter by a male. (Reed. Dep. 50). 

Alphonse Reed testified in his deposition that Hubbell’s successors in the position of

lead parcel sorter were less effective than Hubbell because their pallets were not as

well-packed as Hubbell’s. (Id. at 145).

Shortly after Hubbell’s demotion, FedEx’s alleged monitoring of Hubbell

increased. The security guards began to “wand[] [her] every day.” (Hubbell Dep. 252-

53). James Massie, one of the security guards, told Hubbell that management had

given him specific instructions “to treat [Hubbell] differently.” (Id.). Mr. Massie told

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Hubbell to “watch out or watch [her] back, so to speak, that management staff was

plotting against [her].” (Id. at 253).

E. Hubbell Files Her First EEOC Charge, and FedEx Management

Allegedly Retaliates Against Her.

On November 7, 2013, a couple of months after her demotion, Hubbell filed an

EEOC Charge of Discrimination with the Michigan Department of Civil Rights. (Pl.’s Ex.

12). She alleged that she had “been subjected to disparaging remarks regarding [her]

sex that were made by [her] supervisor and Hub Manager” throughout her employment. 

(Id.). She also alleged that had been demoted from her position as lead parcel sorter

due to her sex and in retaliation for a January 9, 2013, complaint she had made to the

FedEx human resources department about the disparaging remarks. (Id.).

Human-resources representative Vivian Garrey testified that when an employee

files an EEOC charge, she is made aware of the charge. (See Garrey Dep., Pl.’s Ex.

29, at 30). The attorney at FedEx conducts a “confidential investigation,” and Ms.

Garrey assists in the investigation. (Id. at 26-30). Moreover, Ms. Garrey informs the

hub manager, Mr. Treman, of the charge. (Id. at 30).

Hubbell received a number of disciplinary write-ups in the months following her

first EEOC charge. (See Hubbell Dep. 76-77, 190-202; Pl.’s Ex. 13; Pl.’s Ex. 14; Pl.’s

Ex. 15; Pl.’s Ex. 16). Hubbell repeatedly stated in her deposition, and occasionally

wrote on the write-ups themselves, that she believed that the disciplinary write-ups were

issued in retaliation for her EEOC charge. (See Hubbell Dep. 191). Hubbell testified

that other employees were not punished for doing the things that she was accused of

doing. (Id. at 199). Hubbell could not remember all of the details of the various

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incidents, however, (see id. at 190-91), and she did not deny all of the factual

allegations, (see id. at 201-02).

The managers at the Detroit facility allegedly retaliated against Hubbell in other

ways, as well. Hubbell stated in her deposition that after she filed her EEOC charge, all

of the other full-time employees were allowed to clock in to the job fifteen minutes

before the start of their shifts and clock out fifteen minutes after the end of their shifts,

but she was only allowed to clock in three minutes before her shift started and clock out

three minutes after her shift ended. (Hubbell Dep. 107-09). The result was that those

other employees had an opportunity to make more money than she did. (Id. at 109). 

Some evidence contradicts Hubbell’s claim that FedEx retaliated against her by not

allowing her to clock in early. Hubbell wrote in her second EEOC charge that “[o]n or

about August 29, 2013, I was given an email that stat[ed] that I could not punch in more

than three minutes prior to the start of my shift. . . . Mean while, [sic] other coworkers

with the same job title are allowed to punch in fifteen minutes prior to the start of the

shift . . . .” (Pl.’s Ex. 17 (emphasis added)). That email would have been sent before

the EEOC charge was filed, suggesting that if Hubbell’s privilege to clock in fifteen

minutes early had indeed been taken away, it must have been taken away because she

had been demoted, not in retaliation for her (yet unfiled) EEOC charge. Moreover,

manager Christopher Jensen testified that employees are only allowed to clock in early

when their work requires it. (Jensen Dep. 89).

Hubbell testified in her deposition that FedEx’s purported monitoring of her

actions continued after she filed her EEOC charge. (See Hubbell Dep. 108-10).

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F. Hubbell Files Her Second EEOC Charge.

On March 10, 2014, Hubbell filed a second EEOC charge, this time alleging that

FedEx retaliated against her after she filed her first EEOC charge. (Pl.’s Ex. 17).

According to Hubbell, FedEx’s alleged pattern of retaliation continued following

her second EEOC complaint. Hubbell received a write-up on April 23, 2014, for four

alleged unexcused absences. (Pl.’s Ex. 18). Hubbell wrote on the write-up that “this

disciplinary action form is in retaliation for a complaint I filed against the company with

the EEOC.” (Id.) Hubbell testified at her deposition, “I believe [I was sick]. I believe I

had a doctor’s note . . . .” (Hubbell Dep. 234). In April 2014, two managers threatened

to write Hubbell up for wearing “tinted safety glasses” unless she would remove them. 

(Id. at 238-41). Hubbell had a temporary medical condition that required her to wear

tinted glasses, and Hubbell had a note from an optometrist explaining her need for the

glasses. (Id.). Moreover, at least one other employee had regularly worn sunglasses

and had not been punished. (Id. at 241). 

The alleged retaliation continued through the summer of 2014. First, a manager

refused to give Hubbell her paycheck until she approved changes on one of her time

sheets, in violation of company policy. (Hubbell Dep. 236-37). Second, Hubbell went

on medical leave for a period, and when she returned, it took FedEx one or two days to

reenable Hubbell’s work badge. (Id. at 244). Based on her experience at FedEx,

Hubbell testified that this was an unreasonably long period of time. (Id. at 245). Third,

a manager verbally reprimanded Hubbell in front of another employee for going to the

restroom without signing the restroom sign-out sheet. (Id. at 120-21). Hubbell testified

that she had witnessed many employees go to the restroom without signing the sheet

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and that they were never reprimanded. (Id. at 247). Fourth, Hubbell once heard two

managers talking about her on the radio system, in a way that other employees could

hear. (Id. at 248-50). Specifically, the managers were saying that Hubbell had been

talking with another employee, and they instructed Hubbell’s supervisor to dismiss

Hubbell for the day as punishment. (Id.). Hubbell testified at her deposition that even

though many employees were talking to each other that day, she was the only one sent

home. (Id. at 250).

In Fall 2014, Hubbell had a discussion with manager William Mullins. (Hubbell

Dep. 277). Mr. Mullins told Hubbell that “he felt as though [she] hadn’t done anything

wrong but the managers were trying to cover their tracks.” (Id.).

G. Hubbell Sues FedEx, and FedEx Terminates Hubbell.

In October 2014, Hubbell filed the instant lawsuit. Although the deposition

testimony of human-resources representative Vivian Garrey is not entirely clear, it

appears that she at least was aware of Hubbell’s lawsuit. (See Garrey Dep. 17-20, 25-

28).5

In early December 2014, Hubbell received three disciplinary write-ups for

improperly leaving work. First, on December 1, Hubbell received a write-up for leaving

early on November 25 and 28. (Pl.’s Ex. 19). Hubbell testified that although her lead

parcel sorter had instructed her not to leave on November 25, Hubbell’s manager had

5

 During the summary-judgment motion hearing, counsel for FedEx explained

that FedEx had waived service and that he had not told anybody at the Detroit facility

about Hubbell’s lawsuit. The Court has no reason to doubt counsel’s representation to

the Court. But even if the Court could consider this unsworn representation in deciding

the summary-judgment motion, it would not help FedEx. The Court must construe all

evidence in favor of the non-moving party.

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given her permission to leave. (Hubbell Dep. at 260-61). And Hubbell testified that she

had not left early on November 28 but rather had left at the scheduled end of her shift. 

(Id. at 262). Hubbell also testified that when she left, she had already worked a full forty

hours that week. (Id. at 267). On December 5, Hubbell received the second write-up,

for leaving early on December 2 and 4. (Pl.’s Ex. 20). At her deposition, Hubbell could

not recall the specific details of these two incidents, but she testified that she “told

someone before [she] left on every night or they told [her] to leave.” (Hubbell Dep. 264). 

Hubbell also testified that her work had been finished. (Id. at 266). Hubbell testified

that other employees had been allowed to leave, and that she “didn’t know [she] would

be treated differently and not be allowed to leave.” (Id.; see also id. at 270).

On December 15, Hubbell received the third write-up, resulting in her termination. 

(Pl.’s Ex. 21). The write-up states that Hubbell left work early without approval on

December 9. (Id.). It also states that on December 12, managers asked Hubbell to

clock back in after leaving work because they wanted to meet with her but that Hubbell

refused and went home. (Id.). Hubbell testified at her deposition that she did not leave

early on either date. (Hubbell Dep. 271). Rather, she left because she had worked

over forty hours that week, and she believed that she was permitted to leave under

company policy. (Id.). On December 9, in particular, she was the only parcel sorter still

on the clock at the Detroit facility at the time she left; all of the others had been allowed

to go home for the day. (Id.). Hubbell admitted in her deposition that she “disregarded”

her managers when they asked her to clock back in on December 12 as she was

leaving. (Id. at 274). Hubbell thought it was highly unusual that the managers wanted

her to clock back in to have a meeting outside of her normal hours. (Id.). Manager

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Christopher Jensen testified at his deposition that management had already decided to

terminate Hubbell before December 12 and that the reason they wanted Hubbell to

clock back in on that day was so that they could fire her. (Jensen Dep. 169-71).

Ms. Garrey, the human-resources representative, testified that she made no

attempt to get Hubbell’s side of the story before approving the disciplinary write-ups and

the final termination. (Garrey Dep. 85, 91). Ms. Garrey admitted that terminating an

employee without first hearing his or her side of the story was not her normal policy. (Id.

at 91). Various FedEx employees provided deposition testimony about FedEx’s

attendance policies. The testimony at times was contradictory. For the most part,

however, the testimony contradicted Hubbell’s deposition testimony that she could leave

at will so long as her scheduled shift was complete. (See Mullins Dep., Pl.’s Ex. 23, at

54-55; Jensen Dep. 132, 148; Ocelnik Dep. 56-57; Garrey Dep. 79).

Hubbell filed a third EEOC charge, alleging that she was terminated in retaliation

for filing the instant lawsuit. (See Pl.’s Ex. 22). She subsequently added this allegation

to her complaint in the instant lawsuit.

H. Other Evidence of Discrimination

Hubbell has also offered evidence of discrimination that went beyond her

allegedly improper demotion. Hubbell testified that a manager made discriminatory

comments about women, and that another manager failed to condemn a subordinate’s

discriminatory comments. (Hubbell Dep. 118, 278-79). Hubbell also testified that she

was repeatedly passed over for promotions, which were given instead to males. In

2009, William Mullins was promoted to lead parcel sorter, while Hubbell remained a

parcel sorter. (Mullins Dep. 6; see also Reed Aff. ¶ 10; Reed Dep. 81, 153-54). Hubbell

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had seniority over Mr. Mullins, trained him when he first started at FedEx, and had a

slightly higher level of education. (Hubbell Dep 220, 285; Mullins Dep. 5-6). In 2010,

when Hubbell and Mr. Mullins were both lead parcel sorters, Mr. Mullins was promoted

to a management position but Hubbell was not. (Hubbell Dep. 220).6

I. Background for the Motion to Strike the McCloskey Affidavit

As stated above, Hubbell initiated the instant against FedEx in October 2014. 

Pursuant to her initial disclosure obligations under Federal Rule of Civil Procedure

26(a)(1)(A), Hubbell disclosed over ninety individuals who are likely to have

discoverable information. (See Doc. 18, Pl.’s Witness List). One of those individuals

was Rebecca McCloskey, whose affidavit is the subject of the motion to strike. (See

id.)

During discovery, FedEx served a set of interrogatories and requests for

production on Hubbell. (See Def.’s Mot. Strike Ex. 8). Two requests for production are

of particular relevance in the Court’s consideration of the motion to strike:

1. Any documents relating to any statement, oral or written[,]

taken or received by Plaintiff of a potential witness or persons with

knowledge of facts pertinent to this lawsuit . . . .

. . .

6. Documents reflecting any communications between Plaintiff

and any current or former employee of FedEx SmartPost regarding

Plaintiff’s employment with FedEx SmartPost and/or allegations in

Plaintiff’s Complaint.

6

 Hubbell also testified that various employees and former employees of FedEx

had told her that FedEx management had discriminated against them or that they had

witnessed such discrimination. (See Hubbell Dep. 81-82, 314). Such testimony is

inadmissible hearsay, and the Court will not consider it. See supra note 3.

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(Def.’s Mot. Strike Ex. 8 at 15). Hubbell had not yet received the McCloskey affidavit at

the time she responded to the requests for production, and she therefore did not

disclose the affidavit in her responses.

FedEx deposed Hubbell on August 20, 2015. During the deposition, FedEx’s

counsel asked Hubbell why Ms. McCloskey was “on [Hubbell’s] witness list.” (Hubbell

Dep. 310). Hubbell responded that Ms. McCloskey would be able to testify about

FedEx’s rapid promotion of a woman to a management role following Hubbell’s

demotion, which was done in order to “cover up for the fact that no female leads had

been promoted.” (Id.). FedEx never deposed Ms. McCloskey.

On October 2, 2015, Ms. McCloskey executed her affidavit. Hubbell did not

receive the McCloskey affidavit until October 27, which was after the close of discovery. 

On November 19, about six weeks after the close of discovery and three weeks after

Hubbell received the McCloskey affidavit, FedEx filed its motion for summary judgment. 

On December 23, approximately eight weeks after Hubbell received the McCloskey

affidavit, Hubbell filed her response to the summary judgment motion and attached the

McCloskey affidavit in support. When FedEx filed its reply in support of its summary

judgment motion (Doc. 26), FedEx simultaneously filed the motion to strike, arguing that

the McCloskey affidavit was responsive to requests for production 1 and 6 and therefore

should have been disclosed earlier.

The scope of the McCloskey affidavit goes beyond discussion of the supposed

“cover up.” (See McCloskey Aff., Pl.’s Ex. 3). Ms. McCloskey stated that management

at FedEx “treated its male employees more favorably than its female employees,” and

she provided a few examples. (Id. ¶¶ 7-14). Further, Ms. McCloskey stated that she

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“witnessed management create a hostile work environment” for Hubbell and provided

several examples of the harassment that she said Hubbell suffered. (Id. ¶¶ 15-20, 22-

23). Although the scope of the McCloskey affidavit goes beyond the alleged cover-up,

the affidavit is quite vague and largely cumulative of the other evidence described

above. In particular, it is largely cumulative of Alphonse Reed’s affidavit and deposition

and Hubbell’s deposition. Once all of the cumulative parts of the McCloskey affidavit

are put aside, the affidavit adds the following alleged facts to the record:

1. FedEx management would not allow Ms. McCloskey to leave early when

she was pregnant and had an aching back, but management allowed a

male to leave early when he complained about being hungry. (McCloskey

Aff. ¶ 10).

2. “Management at FedEx SmartPost would train more male employees to

do certain things that could lead to promotions and an increase in pay but

they would not do the same for women.” (McCloskey Aff. ¶ 11).

3. Both Ms. McCloskey and another female employee, Michelle Joseph,

were passed over for opportunities for advancement in favor of less

qualified male employees. (McCloskey Aff. ¶¶ 12-13).

4. Female managers were given less favorable shifts than male managers. 

(McCloskey Aff. ¶ 14).

5. Hubbell was an effective communicator and she was a better

communicator than Jason Burgos, one of the managers. (McCloskey Aff.

¶ 23).

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II. MOTION TO STRIKE (DOC. 25)

The Court will first address the motion to strike the McCloskey affidavit, before

proceeding to rule on the summary-judgment motion. For the reasons explained below,

the Court finds that Hubbell violated her discovery obligations when she failed to make

a timely disclosure of the affidavit, but that it would be inappropriate to strike the

McCloskey affidavit. Instead, the Court will allow FedEx to depose Ms. McCloskey prior

to trial.

A. Hubbell Violated Her Duty to Supplement Prior Disclosures.

A party has a duty to supplement its prior response to a request for production “in

a timely manner if the party learns that in some material respect the . . . response is

incomplete or incorrect.” Fed. R. Civ. P. 26(e)(1). This duty to supplement continues

throughout the trial proceedings, and it does not terminate at the end of the formal

discovery period. See Rodriguez v. IBP, Inc., 243 F.3d 1221, 1230 (10th Cir. 2001); Star

Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D. 350, 358 (W.D.N.Y.

2011). The Court finds that Hubbell violated this duty. The McCloskey affidavit was

responsive to FedEx’s requests for production 1 and 6, and therefore Hubbell had a

duty to supplement her prior responses in a timely manner when she received the

affidavit. Hubbell failed to do so. Instead, she waited approximately eight weeks—until

after FedEx had already filed its motion for summary judgment—to disclose it.

B. Hubbell’s Discovery Violation Was Harmless, and Exclusion Is Not

Appropriate.

Given that Hubbell violated her duty to supplement under Federal Rule of Civil

Procedure 26(e), the Court must decide the appropriate sanction. The ordinary

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sanction is exclusion of the improperly withheld evidence, but a court has broad

discretion to impose an alternate sanction. See Fed. R. Civ. P. 37(c)(1); Howe v. City

of Akron, 801 F.3d 718, 747 (6th Cir. 2015). The Court finds that exclusion is not an

appropriate sanction. It is true that Hubbell’s counsel clearly violated a well-established

discovery rule. And it is also true that FedEx was justifiably surprised when Hubbell

submitted the McCloskey affidavit as an exhibit to her response to FedEx’s summaryjudgment motion: FedEx had reasonably relied on Hubbell’s representations during her

deposition in deciding not to contact or depose Ms. McCloskey. But the McCloskey

affidavit is largely cumulative of other evidence in the record and what little noncumulative information it contains is not enough to affect the Court’s ruling on the

summary-judgment motion. Therefore, the discovery violation was harmless. The

Court will not strike or exclude the affidavit.

The Court will, however, allow FedEx to depose Ms. McCloskey prior to trial. A

discovery schedule “may be modified . . . for good cause and with the judge’s consent.” 

Fed. R. Civ. P. 16(b)(4). There is good cause to reopen discovery to allow FedEx to

depose Ms. McCloskey because Hubbell, not FedEx, is at fault, and because reopening

discovery for this limited purpose would not disrupt any pending proceedings in this

case. See Audi AG v. D’Amato, 469 F.3d 534, 541 (6th Cir. 2006).

III. Motion for Summary Judgment (Doc. 19)

FedEx, in its summary-judgment motion, argues that the Court should dismiss all

four counts of Hubbell’s amended complaint. For the reasons explained below, the

Court will grant FedEx’s motion with respect to Count 3, but the Court will not dismiss

Count 1, 2, or 4.

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A. Summary-Judgment Standard

Federal Rule of Civil Procedure 56(a) empowers a court to render 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.” See also Redding v. St.

Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed courts’ use

of summary judgment as an integral part of the fair and efficient administration of

justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986); see also Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 149 (6th

Cir. 1995).

The standard for determining whether summary judgment is appropriate is

“‘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.’” 

Amway Distrib. Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence

and all reasonable inferences must be construed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986); Redding, 241 F.3d at 532. “[T]he mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material fact.” 

Anderson, 477 U.S. at 247-48; see also Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253

F.3d 900, 907 (6th Cir. 2001).

If the movant establishes by use of the material specified in Rule 56(c) that there

is no genuine issue of material fact and that it is entitled to judgment as a matter of law,

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the opposing party must come forward with “specific facts showing that there is a

genuine issue for trial.” First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968);

see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere

allegations or denials in the non-movant's pleadings will not meet this burden, nor will a

mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248,

252. Rather, there must be evidence from which a jury could reasonably find for the

non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252).

B. The Court Will Not Dismiss Count 1 (Gender Discrimination).

Hubbell alleges that FedEx discriminated against her on the basis of her sex by

demoting her from her position as a lead parcel sorter.7

 It is a violation of Title VII for an

employer “to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 

42 U.S.C. § 2000e-2(a)(1) (emphasis added). Title VII is also violated when “sex[] . . .

was a motivating factor for any employment practice, even though other factors also

motivated the practice.” Id. § 2000e-2(m) (emphasis added). A claim alleging the

former type of violation is called a “single-motive claim,” while a claim alleging the latter

type of violation is called a “mixed-motive claim.” White v. Baxter Healthcare Corp., 533

F.3d 381, 396 (6th Cir. 2008). Mixed-motive claims are easier to prove, but a court is

7

 Hubbell makes various other allegations of discrimination in Count 1 of her

amended complaint. However, in her EEOC charge, Hubbell only alleged that FedEx

discriminated against her by demoting her and by allowing a hostile work environment. 

(Pl.’s Ex. 12). As FedEx notes, the Court may not consider Title VII claims that were not

alleged in the EEOC charge and that could not reasonably have been expected to grow

out of the EEOC charge. See Hopson v. DaimlerChrysler Corp., 157 F. App’x 813, 817

(6th Cir. 2005) (unpublished); see also Younis v. Pinnacle Airlines, Inc., 610 F.3d 359,

361 (6th Cir. 2010).

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limited in the type of relief that it may grant under a mixed-motive claim. See id. at 397;

42 U.S.C. § 2000e-5(g)(2)(B). Hubbell alleges both types of claims in Count 1. For the

reasons explained below, the Court finds that Hubbell has adduced sufficient evidence

for both types of claims.

1. Single-Motive Theory

A plaintiff may establish sex discrimination on a single-motive theory with either

direct evidence or circumstantial evidence. See White v. Baxter Healthcare Corp., 533

F.3d 381, 391 n.5 (6th Cir. 2008). Hubbell has offered sufficient direct evidence for

Count 1 to survive summary judgment. 

“Direct evidence of discrimination is ‘that evidence which, if believed, requires the

conclusion that unlawful discrimination was at least a motivating factor in the employer’s

actions.’” Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en

banc) (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d

921, 926 (6th Cir. 1999)). Direct evidence “does not require the fact finder to draw any

inferences to reach [the] conclusion” that discrimination motivated the employer’s

actions. Amini v. Oberlin Coll., 440 F.3d 350, 359 (6th Cir. 2009). One type of direct

evidence is “[d]iscriminatory remarks by decision makers and those who significantly

influence[d] the decision-making process.” Sharp v. Aker Plant Servs. Grp., Inc., 726

F.3d 789, 798 (6th Cir. 2013). Comments that are “general, vague, or ambiguous,”

however, do not constitute direct evidence. Id. (quoting Daugherty v. Sajar Plastics,

Inc., 544 F.3d 696, 708 (6th Cir. 2008)) (internal quotation marks omitted). Likewise, a

“stray statement . . . made . . . years before the adverse decision[]” does not constitute

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direct evidence. Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 549 (6th

Cir. 2004).

Hubbell has offered evidence that the senior manager at the Detroit facility, Mr.

Treman, told her that she should voluntarily accept a demotion from her position as lead

parcel sorter because women are not suited for management positions. Hubbell was

demoted two years later. Although Mr. Treman did not prepare the demotion paperwork

or attend the demotion meeting, Mr. Treman testified that he would have had to approve

the demotion. Thus, Hubbell has offered evidence that an individual who had a

significant influence (indeed, the final say) on the decision to demote her made patently

discriminatory remarks about women and even expressed a view that Hubbell herself

should step down because she is a woman. This is direct evidence. Mr. Treman’s

remarks might have been remote in time from the demotion, but they were hardly

ambiguous or vague and they were not stray statements, unrelated to the topic of

Hubbell’s demotion.

Admittedly, this is a close case. A remark made two years before the demotion

is not the strongest direct evidence of discriminatory intent. Cf. Sharp v. Aker Plant

Servs. Grp., Inc., 726 F.3d 789, 798 (6th Cir. 2013) (holding that discriminatory

comments made four days after the decision to terminate the plaintiff constituted direct

evidence because they “were both ‘temporally [and] topically related’ to the decision to

choose [the plaintiff] to lay off” (citation omitted) (alteration in original)). But the Sixth

Circuit has indicated that expressly discriminatory comments can constitute direct

evidence of discriminatory intent even if they were quite remote in time from the

allegedly discriminatory action. See Imwalle v. Reliance Med. Prods., Inc., 515 F.3d

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531, 549 (6th Cir. 2008) (suggesting, in dicta, that two discriminatory remarks made by

the plaintiff’s managers eight years and one year before the plaintiff’s termination

constituted direct evidence of discrimination). 

Even if Mr. Treman’s remarks to Hubbell did not constitute direct evidence in

favor of her discrimination claim, there would still be sufficient circumstantial evidence in

the record for Hubbell’s claim to survive the summary-judgment motion. Circumstantial

evidence is evidence that “does not on its face establish discriminatory animus, but

does allow a factfinder to draw a reasonable inference that discrimination occurred.” 

Wexler, 317 F.3d at 570. In order for a discrimination claim to survive the summaryjudgment stage on the basis of circumstantial evidence, the “plaintiff must first establish

a prima facie case of discrimination by showing that: ‘(1) she is a member of a protected

group, (2) she was subject to an adverse employment decision, (3) she was qualified for

the position, and (4) she was replaced by a [similarly situated] person outside of the

protected class.’” Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir. 2008) (quoting 

Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir. 2003)). In the plaintiff makes out

a prima facie case, the burden “shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for taking the challenged employment action.” Id. “If the

defendant satisfies this burden, the plaintiff ‘must then prove that the proffered reason

was actually a pretext to hide unlawful discrimination.’” Id. (quoting Carter v. Univ. of

Toledo, 349 F.3d 269, 273 (6th Cir. 2003)).

Hubbell has established a prima facie case of discrimination. First, FedEx does

not dispute that Hubbell is a member of a protected class. Second, Hubbell was

subjected to an adverse employment decision when she was demoted from the lead-

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parcel-sorter position. Third, Hubbell has offered evidence that she was qualified for the

lead-parcel-sorter role. She had worked for FedEx for a number of years and received

awards for her good job performance. Alphonse Reed testified that Hubbell’s pallets

(the packing of which was a key component of Hubbell’s work) were generally wellpacked. And fourth, Hubbell has offered evidence that she was replaced by someone

outside of the protected class—namely, a male named “Mike.” According to Mr. Reed’s

testimony, Mike’s pallets were not packed as well as Hubbell’s.

FedEx argues, however, that the fourth prong of the prima facie case is not

satisfied, because Hubbell “cannot identify any male lead Parcel Sorters, who exhibited

[a pattern of misconduct] over a period of months and were not demoted.” (Def.’s Mot.

Summ. J. 12). But Hubbell testified repeatedly that the disciplinary write-ups she

received in the time leading up to her demotion (or most of the write-ups, at least) were

based on fabricated claims of misconduct. Indeed, she alleges that her managers

improperly and repeatedly wrote her up in order to falsify a justification for her

subsequent demotion. In order to accept FedEx’s argument, the Court would have to

resolve disputed facts against Hubbell, which would be inappropriate at the summaryjudgment stage. Compare Yazdian v. ConMed Endoscopic Tech., Inc., 793 F.3d 634,

651-52 (6th Cir. 2015) (holding that a jury should have been allowed to decide whether

the plaintiff was actually insubordinate where the employer had alleged that he had

been “[u]nwilling[] to accept and apply constructive coaching” and had made “out of line”

comments), with Hegger v. Visteon Auto. Sys., Inc., 186 F. App’x 555, 559-60 (6th Cir.

2006) (unpublished) (finding that the plaintiff’s discipline was “in accord [with the

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company’s] policy . . . for attendance” where the plaintiff “acknowledged that he did not

have his supervisor’s permission to leave” (emphasis added)).

Because Hubbell has established a prima facie case, FedEx must come forward

with a nondiscriminatory reason for Hubbell’s demotion. FedEx has clearly satisfied this

burden. There is a mountain of evidence in the record that supports FedEx’s position

that Hubbell repeatedly misbehaved at work and was an ineffective leader. This

evidence includes numerous disciplinary write-ups, two negative yearly evaluations,

Hubbell’s own admission that she failed to provide responses on the self-evaluation

portion of her performance review, and the deposition testimony of numerous witnesses

about Hubbell’s alleged behavioral problems.

Thus, the burden shifts back to Hubbell to show that FedEx’s stated reasons for

demoting her were pretextual. A plaintiff may establish pretext by showing “(1) that the

proffered reasons had no basis in fact, (2) that the proffered reasons did not actually

motivate [her demotion], or (3) that [the proffered reasons] were insufficient to motivate

her [demotion].” Russell, 537 F.3d at 604 (quoting Manzer v. Diamond Shamrock

Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)) (emphases removed) (internal

quotation marks omitted). Hubbell has offered evidence that FedEx’s proffered reasons

for demotion had no basis in fact. Hubbell testified that most or all of the allegations of

misconduct in the disciplinary write-ups she received were fabricated by managers at

FedEx. Moreover, Hubbell and Alphonse Reed testified that any poor performance on

Hubbell’s part was due to the way in which management intentionally hobbled her. This

testimony may not stand up to scrutiny at trial. But it would be inappropriate for the

Court to make credibility determinations against the non-movant at the summary-

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judgment stage. Hubbell has also offered evidence that the proffered reasons did not

actually motivate her demotion. Hubbell testified that Mr. Treman told her that he

wanted her out of the lead-parcel-sorter position because she was a woman. Moreover,

Hubbell and Mr. Reed testified that Hubbell was subjected to unusual and intense

scrutiny at the behest of management, suggesting that management bore some sort of

animosity towards Hubbell. Given the senior manager’s discriminatory comments, there

is reason to infer that the animosity was discriminatory in nature.

In sum, Hubbell has presented sufficient direct and circumstantial evidence for

Count 1 to survive summary judgment on a single-motive theory.

2. Mixed-Motive Theory

A plaintiff alleging a mixed-motive claim is alleging that “both legitimate and

illegitimate reasons motivated the employer’s decision.” White v. Baxter Healthcare

Corp., 533 F.3d 381, 396 (6th Cir. 2008). The burden-shifting framework discussed

above for single-motive claims does not apply to mixed-motive claims. See id. at 400. 

Rather, “to survive a defendant's motion for summary judgment, a Title VII plaintiff

asserting a mixed-motive claim need only produce evidence sufficient to convince a jury

that: (1) the defendant took an adverse employment action against the plaintiff; and (2)

‘race, color, religion, sex, or national origin was a motivating factor’ for the defendant's

adverse employment action.” Id. (quoting 42 U.S.C. § 2000e-2(m)).

Hubbell has satisfied both elements for a mixed-motive claim. FedEx took an

adverse employment action against her when it demoted her. And Mr. Treman

allegedly told Hubbell in August 2011 that women, including Hubbell, are not suited for

management positions. This is sufficient evidence that the decision to demote

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Hubbell—a decision over which Mr. Treman had the final say—was motivated in part by

the fact that Hubbell is a woman. Therefore, Count 1 also survives summary judgment

on a mixed-motive theory.

C. The Court Will Not Dismiss Count 2 (Retaliation).

Hubbell alleges that management at the Detroit facility retaliated against her after

she filed her first EEOC charge, in violation of Title VII.8 For the reasons explained

below, the Court finds that Hubbell has adduced sufficient evidence in support of this

claim, and the Court will therefore deny FedEx’s summary-judgment motion with respect

to Count 2.

A retaliation claim will survive summary judgment only if the plaintiff establishes a

prima facie case. See EEOC v. New Breed Logistics, 783 F.3d 1057, 1066 (6th Cir.

2015). To make out a prima facie case, the plaintiff must offer evidence that shows that

the plaintiff “(1) engaged in activity protected by Title VII; (2) the defendant knew of [the

plaintiff’s] protected activity; (3) thereafter, the defendant took adverse action against

the [plaintiff]; and (4) a causal connection existed between the protected activity and the

materially adverse action.” Id. Once a plaintiff establishes a prima facie case, the

burden shifts to the defendant to “proffer some legitimate, nonretaliatory reasons for its

8

 In her first EEOC charge, Hubbell alleged that FedEx management retaliated

against her when she filed a complaint with FedEx’s human-resources department. But

Count 2 of Hubbell’s amended complaint does not allege retaliation on this theory. (See

Pl.’s First Am. Compl. ¶ 45). Hubbell’s brief opposing the summary-judgment motion

makes passing mention of Hubbell’s complaint to human resources, but it does not

specifically argue that FedEx retaliated against her for making the complaint. (See Pl.’s

Resp. Def.’s Mot. Summ. J. 17). Thus, the Court will not address this theory of liability. 

Cf. Mitchell v. McNeil, 487 F.3d 374, 379 (6th Cir. 2007) (“Plaintiffs, . . . did not raise

this claim . . . , much less plead it in their complaint, and accordingly it has been

waived.”).

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actions.” Id. If the defendant proffers “such reasons, the burden of persuasion shift[s]

back to [the plaintiff] to show that . . . the reasons were a pretext for retaliation.” Id.

Hubbell is able to establish a prima facie case for her Count 2 retaliation claim. 

The first two elements are clearly satisfied. FedEx does not dispute that Hubbell

engaged in a protected activity when she filed her first EEOC charge. And there is

evidence in the record that FedEx was aware of the charge: Human-resources

representative Vivian Garrey testified that she was aware of the EEOC charge and that

she informed Mr. Treman, the senior manager, about it.

It is less obvious that the third element is satisfied. To satisfy “the third element

of the prima facie case, the adverse employment action must be ‘materially adverse.’”

Ford v. Gen. Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002). A materially adverse

employment action

must be more disruptive than a mere inconvenience or an alteration of job

responsibilities. A materially adverse change might be indicated by a

termination of employment, a demotion evidenced by a decrease in wage

or salary, a less distinguished title, a material loss of benefits, significantly

diminished material responsibilities, or other indices that might be unique

to a particular situation.

Id. (quoting Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999)) (internal quotation

marks omitted). Hubbell’s disciplinary write-ups do not constitute materially adverse

actions because they (except perhaps for the write-ups that resulted in her demotion

and her termination, which are not relevant to Count 2) did not result in a material loss

of benefits or salary or any other harm to the plaintiff. See Choulagh v. Holder, 528 F.

App’x 432, 438 (6th Cir. 2013) (unpublished); Hegger v. Visteon Auto. Sys., Inc., 186 F.

App’x 555, 559-60 (6th Cir. 2006) (unpublished). Similarly, FedEx’s intense monitoring

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of Hubbell and most of FedEx’s other alleged acts of harassment did not result in a

material harm to Hubbell. FedEx’s alleged refusal to allow Hubbell to clock in and out at

the same time as her fellow employees, however, constituted a materially adverse

action. FedEx allegedly allowed other parcel sorters to clock in and out fifteen minutes

before and after their shifts, but only allowed Hubbell to clock in and out three minutes

before and after her shift. The consequence of this was that other employees were able

to earn pay for an additional twenty-four minutes of work each day compared to

Hubbell. This was effectively a pay cut. Thus, Hubbell has satisfied the third element of

the prima facie case.

The Court also finds that Hubbell has established the fourth element of the prima

facie case. To establish the fourth element, “a Title VII [retaliation] claimant must show

that his or her protected activity was a but-for cause of the adverse action by the

employer.” New Breed Logistics, 783 F.3d at 1070. The Court acknowledges that

Hubbell stated in her second EEOC charge that management’s refusal to allow her to

clock in and out fifteen minutes before and after her shift began in late August 2013,

and that Hubbell did not file her first EEOC charge until November 2013. This casts

substantial doubt on Hubbell’s claim that the refusal to allow Hubbell to clock in and out

with the other employees was retaliation for the filing of the first EEOC charge. But it is

also possible that Hubbell was simply confused about the relevant dates when she

wrote in her EEOC charge that the clock issue began in August 2013. Hubbell’s

deposition testimony is not entirely clear, but some of it suggests that the clock issue

arose after Hubbell filed her EEOC charge. Thus, the Court concludes that Hubbell has

offered sufficient evidence to satisfy the causation element.

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Because Hubbell has established a prima facie case, the burden shifts to FedEx

to articulate a non-retaliatory reason for its action against Hubbell. FedEx has offered a

non-retaliatory reason for its refusal to allow Hubbell to clock in and out fifteen minutes

before and after her shift. In particular, FedEx has offered evidence that lead parcel

sorters had this privilege, but that most parcel sorters and assistants did not.

Because FedEx has offered a non-retaliatory reason for refusing to allow Hubbell

to clock in and out fifteen minutes before and after her shift, the burden shifts back to

Hubbell to offer evidence of pretext. Hubbell has satisfied her burden. Hubbell testified

that the refusal to allow her to clock in with the other employees was retaliation,

implying that it began after she filed her EEOC charge and not immediately after her

demotion. Moreover, Hubbell testified that when she was a parcel sorter, the other

parcel sorters were allowed to clock in and out earlier and later than she was allowed,

which tends to show that FedEx’s refusal to allow Hubbell to clock in and out fifteen

minutes before and after her shift had nothing to do with Hubbell’s demotion but rather

was motivated by a retaliatory intent. Finally, Hubbell has offered evidence that FedEx

management harassed her in other ways, such as by giving her unwarranted

disciplinary write-ups. Although none of these other acts of harassment constitutes

cognizable retaliation, these other acts may tend to show that FedEx management bore

substantial animus towards Hubbell after she filed her EEOC charge. See Harrison v.

Metropolitan Gov’t of Nashville & Davidson Cty., 80 F.3d 1107, 1119 (6th Cir. 1996),

overruled on other grounds as recognized by Jackson v. Quanex Corp., 191 F.3d 647,

667 n. 6 (6th Cir.1999) (finding that the plaintiff’s retaliation claim was supported in part

by evidence showing that there was “an atmosphere in which the plaintiff’s activities

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were scrutinized more carefully than those of comparably situated employees . . . and

that the [employer] took every opportunity to make his life as an employee unpleasant”).

In sum, Hubbell has established a prima facie case and offered evidence of

pretext. Thus, her retaliation claim in Count 2 survives the instant motion for summary

judgment.

D. The Court Will Dismiss Count 3 (Hostile Work Environment).

Hubbell alleges that she was subjected to a hostile work environment in violation

of Title VII. She alleges that a pattern of harassment—including unwarranted

disciplinary actions and efforts by management to hobble her job performance—began

in 2011 after Mr. Treman pressured Hubbell to accept a demotion because of her sex. 

Hubbell further alleges that this pattern of harassment continued following Hubbell’s

involuntary demotion and the filing of her first EEOC charge. Thus, Hubbell has set

forth two different theories for her hostile-work-environment claim: discriminatory hostile

work environment and retaliatory hostile work environment. For the reasons explained

below, Hubbell has failed to adduce sufficient evidence to create a genuine issue of

material fact on either theory, and thus the Court will grant FedEx’s summary-judgment

motion with respect to Count 3.

1. Discriminatory Hostile Work Environment

A plaintiff establishes a prima facie case of discriminatory hostile work

environment under Title VII by offering evidence that

(1) he was a member of a protected class; (2) he was subject to

unwelcomed harassment; (3) the harassment was [based on membership

in the protected class]; (4) the harassment unreasonably interfered with

his work performance by creating an environment that was intimidating,

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hostile, or offensive; and (5) the [employer is] liable for the harassing

conduct.

Kuhn v. Washtenaw Cty., 709 F.3d 612, 627 (6th Cir. 2013). Hubbell’s claim fails at the

fourth element.

To satisfy the fourth element of the prima facie case, Hubbell must show that the

harassment was “severe or pervasive enough to create an objectively hostile or abuse

work environment—an environment that a reasonable person would find hostile or

abusive.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The environment must

also have been hostile or abusive from the subjective perspective of the plaintiff. Id. A

court should consider “the frequency of the discriminatory conduct; its severity; whether

it [was] physically threatening or humiliating, or a mere offensive utterance; and whether

it unreasonably interfere[d] with [the] employee’s work performance.” Id. at 23.

Although Hubbell has offered substantial evidence of harassment, the Court is

ultimately compelled to conclude that the alleged harassment cannot amount to severe

or pervasive harassment, as a matter of law. Hubbell has offered evidence that she

was subjected to unwelcome harassment: Mr. Treman allegedly told her that women

are ill-suited for management positions; various lower-level managers disciplined

Hubbell for allegedly fabricated infractions; lower-level managers allegedly undermined

Hubbell’s ability to succeed as a lead parcel sorter by assigning her to the most difficult

area of the Detroit facility and depriving her of the competent parcel sorters; and lowerlevel managers were allegedly constantly watching Hubbell from the catwalk, which they

did not do with other employees. 

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 Neither party has brought a case to the Court’s attention involving similar facts to

the case at hand, but a comparable case is the Sixth Circuit case Clay v. United Parcel

Service, Inc., 501 F.3d 695 (6th Cir. 2007). In Clay, the plaintiff alleged a racially hostile

work environment on the basis of “fifteen specific incidents spanning a two-year period.” 

Id. at 707. The plaintiff’s supervisor “constantly criticized [her] regarding matters for

which he did not criticize her white coworkers[,] . . . including for eating during work, for

leaving her work station to get a cup of coffee, for using the bathroom at the end of her

break, and for the size of her earrings.” Id. at 702. Once, the supervisor criticized the

plaintiff in front of other employees for eating a doughnut left for the employees in the

break room. Id. The supervisor also constantly criticized the plaintiff for taking too long

to get from the entrance to her work area and “had her timed to record how long it took

to get to her work station.” Id. Furthermore, the supervisor regularly ordered the

plaintiff to complete tasks “outside of her job description; for example, . . . tak[ing]

company supplies, like toilet paper, over to the supply trailer.” Id. The supervisor also

“falsely accused [the plaintiff] of taking boxes while on company time.” Id. Finally, the

plaintiff reported an incident in which “someone cut the lock on her desk, removed the

supplies, and placed them in a box” while a white employee was allowed to store his

supplies in his desk. Id. The Sixth Circuit held that this pattern of harassing conduct

was insufficiently serious or pervasive to create an objectively hostile work environment.

Hubbell’s situation is very similar to the Clay plaintiff’s. She, like the Clay plaintiff,

was allegedly repeatedly criticized by supervisors without justification and was asked to

do jobs outside of her job description. Moreover, like the Clay plaintiff, who was timed

by her supervisor as she walked from the warehouse’s entrance to her work station,

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Hubbell was subjected to unusual monitoring by her supervisors. Hubbell was given a

number of allegedly unjustified write-ups for absenteeism, insubordination, and a safety

violation, but the Clay plaintiff was falsely accused of stealing, an even more humiliating

accusation. In sum, the severity of Hubbell’s harassment is comparable to the severity

of the Clay plaintiff’s harassment. And Hubbell’s harassment does not appear to have

been any more pervasive than the Clay plaintiff’s. Therefore, like the plaintiff in Clay,

Hubbell has failed to establish the fourth element of her prima facie case.

Moreover, as FedEx notes, Hubbell has alleged only one incident (or possibly

two) in which Mr. Treman directed discriminatory language towards her. Isolated

remarks are insufficient to constitute pervasive or severe harassment. See Williams v.

CSX Transp. Co., 643 F.3d 502, 513 (6th Cir. 2011) (holding that “despicable” “racist”

statements were not sufficiently “severe” or “pervasive” because they were “isolated”

and were not physically threatening or humiliating).

2. Retaliatory Hostile Work Environment

A plaintiff establishes a prima facie case of retaliatory hostile work environment

by offering evidence that “(1) she engaged in [protected activity]; (2) the defendant was

aware that the plaintiff engaged in the protected activity; (3) the plaintiff suffered ‘severe

or pervasive retaliatory harassment by a supervisor; and (4) there was a causal

connection between the protected activity and the . . . harassment.’” Cleveland v. S.

Disposal Waste Connections, 491 F. App’x 698, 707 (6th Cir. 2012) (unpublished)

(quoting Morris v. Oldham Cty. Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000))

(omission in original). Hubbell again fails to satisfy the third element of the prima facie

case, for the reasons explained immediately above. The post-EEOC-complaint

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harassment, like the pre-EEOC-complaint harassment, was simply not pervasive or

serious enough to create an objectively hostile or abusive work environment. Therefore,

Hubbell has failed to make out a prima facie case of retaliatory hostile work

environment.9

Because Hubbell failed to establish a prima facie case of hostile work

environment under either of the two theories, the Court will grant FedEx’s summaryjudgment motion with respect to Count 3 and will dismiss Count 3.

E. The Court Will Not Dismiss Count 4 (Retaliation).

Hubbell added Count 4 in her amended complaint. She alleges that FedEx

retaliated against her by terminating her for filing the instant lawsuit. For the reasons

explained below, the Court will deny FedEx’s summary-judgment motion with respect to

Count 4.

The burden-shifting framework and the prima facie elements of a retaliation claim

are set forth in the Count 2 discussion above. Hubbell has established the prima facie

case. First, FedEx does not deny that Hubbell engaged in a protected activity when she

filed the instant lawsuit. Second, there is evidence that human-resources

representative Vivian Garrey and at least some managers were aware of the lawsuit. 

Third, FedEx took a materially adverse employment action against Hubbell when it

terminated her in December 2014. And fourth, the short period of time (less than two

9 As explained above in the discussion about Count 2, FedEx’s refusal to allow

Hubbell to clock in and out at the same time as the other employees constituted a

materially adverse employment action. But this refusal was “a discrete act,” actionable

as a claim for retaliation, but “decidedly not actionable as a hostile-work-environment

claim.” Clay v. United Parcel Serv., Inc., 501 F.3d 695, 708 (6th Cir. 2007).

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months) between the filing of Hubbell’s complaint and FedEx’s decision to terminate

Hubbell is sufficient circumstantial evidence that Hubbell’s protected activity caused

FedEx to terminate her. See Asmo v. Keane, Inc., 471 F.3d 588 (6th Cir. 2006).

FedEx argues, however, that Hubbell has failed to establish the causation

element of the prima facie case. FedEx argues that the relatively short period of time

between the filing of the present action and FedEx’s decision to terminate Hubbell does

not establish that Hubbell’s protected activity motivated the termination; rather, FedEx

argues that the Court must only consider the period of time between Hubbell’s filing of

the EEOC charges and FedEx’s decision to terminate Hubbell. Since many months

passed between Hubbell’s filing of her EEOC charges and FedEx’s decision to

terminate Hubbell, FedEx argues that there is insufficient circumstantial evidence of

causation. The problem with FedEx’s argument is that in Count 4, Hubbell is arguing

that FedEx retaliated against her for filing suit, not for filing her EEOC charges. 

Hubbell’s act of filing suit was itself a protected activity distinct from her protected acts

of filing the two EEOC charges. Thus, the relevant date for the causation analysis is the

date that Hubbell filed suit, not either of the dates for her EEOC charges.10

10 FedEx contends that Clark County School District v. Breeden, 532 U.S. 268

(2001), and Grey v. City of Oak Grove, 396 F.3d 1031 (8th Cir. 2005), require a different

result. But the two cases are distinguishable. Unlike the plaintiff in Breeden, Hubbell is

not arguing causation based on a short temporal gap between the issuance of the rightto-sue letter (which is a government action, not a protected activity by the employee)

and FedEx’s decision to terminate her. Rather, Hubbell is arguing causation based on

the short temporal gap between her initiation of the instant legal action (which is a

protected activity) and FedEx’s decision to terminate her. And the plaintiff in Grey

engaged in only a single protected activity (seeking overtime pay that he was owed); the

question in that case was when the employer was given notice of that protected activity. 

In the instant case, by contrast, Hubbell has engaged in three different protected

activities while she worked at FedEx: She filed two EEOC charges and one lawsuit. 

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FedEx also contends that Hubbell has failed to establish the causation element of

the prima facie case because she has failed to establish but-for causation. But, as will

be explained below in the pretext analysis, Hubbell has offered testimony rebutting

FedEx’s argument that it had a reason to terminate her and showing that Hubbell was

terminated due to her protected activity. Thus, there is evidence that could persuade a

juror that Hubbell’s act of filing the instant lawsuit was the but-for cause for her

termination.

In sum, Hubbell has established a prima facie case. The burden therefore shifts

to FedEx to come forward with evidence of a non-retaliatory motive for Hubbell’s

termination. FedEx has satisfied its burden. According to FedEx, Hubbell was

terminated because she was insubordinate and because she repeatedly left work early

in late November and early December—FedEx’s peak season. FedEx has provided

disciplinary write-ups and deposition testimony from multiple witnesses to back up this

claim.

Thus, the burden shifts back to Hubbell to demonstrate that FedEx’s stated

reasons for her termination are pretextual. The Court, construing the evidence in favor

of Hubbell, finds that Hubbell has provided sufficient evidence of pretext. FedEx claims

that Hubbell was terminated after repeatedly leaving work early without permission,

even after having been warned. At her deposition, Hubbell asserted that she did

nothing wrong and that the disciplinary write-ups and her ultimate termination were

unwarranted. For each of the incidents discussed in her deposition, Hubbell gave some

FedEx received notice of the three different protected activities at different times. 

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combination of the following explanations for leaving: It was her scheduled time to

leave, management had given her permission to leave, she had already worked over

forty hours in the week, and the other parcel sorters had been allowed to leave. It

appears to be true that FedEx had the right to discipline her if Hubbell left merely

because she had already worked for forty hours. But if Hubbell was indeed the only

parcel sorter who was asked to stay late, as she claims, then it would appear that

FedEx was trying to force Hubbell out of her job or set her up to be terminated by

subjecting her to unreasonable attendance expectations. Also, if Hubbell in fact

received permission to leave before she left on each day, as she claims, then it would

appear that Hubbell did not violate FedEx policy. Depending on which evidence is

credited by the jury, the alleged pattern of harassing conduct on the part of FedEx

management going all the way back to Hubbell’s first EEOC charge could support a

finding that FedEx’s stated reasons for terminating Hubbell were pretextual. In sum,

Hubbell has offered evidence that the stated reason for her termination did not actually

motivate FedEx’s decision to terminate Hubbell and that there is no basis in fact for

FedEx’s decision to terminate her. Hubbell has met her burden of establishing pretext.

The Court therefore will deny FedEx’s summary-judgment motion with respect to

Count 4.

IV. CONCLUSION

For the reasons stated above, FedEx’s motion to strike the McCloskey affidavit

(Doc. 25) is GRANTED IN PART and DENIED IN PART. IT IS ORDERED that

discovery shall be reopened for the limited purpose of permitting FedEx to depose

Rebecca McCloskey. Further, for the reasons stated above, FedEx’s motion for

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summary judgment (Doc. 19) is GRANTED solely with respect to Count 3 of the first

amended complaint. IT IS ORDERED that Count 3 is DISMISSED. FedEx’s motion for

summary judgment is DENIED with respect to Counts 1, 2, and 4.

IT IS SO ORDERED.

Dated: June 9, 2016

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

June 9, 2016, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

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