UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KIM LEE WILSON,

Plaintiff,

v.

BUDCO, et al.,

Defendants.

 /

Case No. 09-cv-13385

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION TO STRIKE (docket no. 22) AND GRANTING IN PART 

AND DENYING IN PART DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT (docket no. 14)

Plaintiff Kim Wilson filed this action alleging that Defendants Budco, a Michigan

corporation, and Larry Raymond, an operations manager with Budco, violated Title VII, 42

U.S.C. § 2000e et seq. (“Title VII”), the Michigan Elliot Larsen Civil Rights Act, Mich. Comp.

Laws § 37.2101 et seq. (“ELCRA”), and 42 U.S.C. § 1981. Wilson also alleges that he was

wrongfully discharged. Defendants moved for summary judgment on all claims.

Subsequently, Raymond filed a motion to strike affidavits attached to Wilson’s response

to Defendants’ motion. Both motions have been fully briefed. For the following reasons,

the Court will grant in part and deny in part Defendants’ motion to strike. Further, the Court

will grant in part and deny in part Defendants’ motion for summary judgment.

FACTS

 Because the Court must view all facts in the light most favorable to the non-moving

party when considering a summary judgment motion, to the extent that any facts are

disputed, the facts set forth below represent Wilson’s version of the events at issue.

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Matsushita Elec. Indus. Co. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Further, the

facts below only recount those facts not presented in filings stricken by the Court, see,

Analysis, Section A, infra.

A. Wilson’s Employment History

Wilson, an African-American male, began working at Budco in 1993 as a temporary

employee through Kelly Services, a temporary employment agency. In 1995, Wilson was

hired by Budco as a full-time machine operator. Pl. Dep. 129. Wilson alleges that white

employees, with similar backgrounds, were hired as permanent employees after working

for only a few months at Budco, while African-Americans, including Wilson, worked for

years before being hired as permanent employees. Id. at 37; Pl. Aff. ¶¶ 4,6 (docket no. 19

ex. A).

By 1997, Wilson was working on the night-shift as a machine operator in the DCXOM

department, producing automotive owner’s manuals for Chrysler. Pl Dep. 130. In 2000,

Wilson’s shift had the highest output of all the shifts at Budco, and Wilson was promoted

to the position of Level 3 Machine Operator. Id. at 132-34; Wilson Perf. Eval. at 23 (docket

no. 19, ex. F). As a Level 3 Machine Operator, Wilson was tasked with supervising other

workers and was responsible for the “set-up, operation, maintenance, and repair of

machinery on the production floor.” Job Description (docket no. 14, ex. E). 

In 2003, J.T. Holtzman was transferred to DCXOM and became Wilson’s supervisor.

Wilson’s job evaluations generally indicated that he met or exceeded expectations and

often praised his work quality and production output, though evaluations from 2003-2006

consistently noted that Wilson needed to improve his mechanical and trouble-shooting

skills. Wilson Job Evaluations 2003-2006 (docket no. 14, ex. F). Wilson’s job evaluations

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1 The letter shop and bindery departments were separate departments until

they later merged.

3

further noted that Wilson needed to “understand the importance” of attending all mandatory

and scheduled Budco University classes. Id. 

In the summer of 2007, Budco learned that Chrysler had contracted with another

company to prepare its owner’s manuals. As a result, Budco prepared to dissolve several

of its departments, including DCXOM. Pl. Dep. 78-79. At that time, Keith Foether,

Budco’s general manager of operations, advised Wilson and another employee, Jeremy

Page, that DCXOM would be dissolved by July 2008, but that Wilson and Page would be

transferred to letter shop / bindery.1

 Id. at 193. Page left Budco and took a job with a

competitor. Foether Dep. 17. Wilson also called a competitor about a job, but did not

pursue the option because Foether “assured him” of a continuing position with Budco. Pl.

Dep. 207. 

In October 2007, Wilson transferred to a night-shift position in the bindery. Wilson

remained a Level 3 Machine Operator, but, because the bindery department already had

a supervisor, Leslie Peeples, Wilson no longer supervised other workers. Id. at 232, 234.

Thus, Wilson was strictly responsible for troubleshooting and repairing the machines in the

bindery department. Id. Raymond, who was an operations manager and Wilson’s

supervisor in bindery, stated that Wilson struggled in the bindery department and that he

“never really fulfilled the responsibilities of an operator within the department. He still

struggled with some of the setup responsibilities within the department.” Raymond Dep.

21-22. Wilson alleges, however, that while he worked in bindery, Peeples assigned him

to tasks such as taking out the garbage and loading books into the machines, which

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2 The affidavit signed by Sherman Levingston spells his name “Levingston.”

In the briefs, his name is also spelled “Livingston.” The Court use the name on the signed

affidavit.

4

frustrated his ability to perform his job of keeping the machines running. Pl. Dep. 249-251.

Although Wilson spoke with Raymond about the issues that frustrated him, and was told

that he was not responsible for these tasks, id., Wilson later discovered that Raymond

was actually instructing Peeples to have him perform these duties. Id. at 254-55. 

Further, Raymond often spoke to Wilson in a disrespectful manner. Raymond called

him stupid, a “shithead,” and also said “you fucking people” to him. Id. at 297. When

Wilson approached Raymond about an incident in which Raymond failed to relay a

message that Wilson did not need to come into work early, Raymond responded that he

did not want to hear it. Id. at 263. At one point, when Wilson asked Raymond what

happened to Raymond’s motorcycle, Raymond responded that he had sold his motorcycle

for a Glock pistol, which he kept in his car “just in case,” in a manner Wilson believed to be

threatening. Id. at 298, 409. Other employees, including Adria Hampton, Kenneth Adams,

and Sherman Levingston2

, similarly allege that Raymond spoke to African-Americans in a

“demeaning” manner, and that Raymond referred to African-American women as “stupid

bitches” and “lazy bitches.” Hampton Aff. ¶16 (docket no. 19, ex. B); Adams Aff. ¶¶7-8

(docket no. 19, ex. C). 

In December 2007, Wilson sent Holtzman and Foether an email indicating that he was

having problems with Raymond. Pl. Dep. 325, 330. Wilson acknowledges that he sent this

letter to Holtzman despite the fact that he believed Holtzman was a racist and treated white

employees preferentially. Id. Holtzman approached Wilson after receiving the letter and

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told him that Raymond had a different managing style than Holtzman, and that Wilson

needed to treat the bindery department as if he was at a different job than when he was

working in DCXOM with Holtzman as his supervisor. Id. at 331. When the issues had still

not resolved by January 2008, however, a meeting was set up between Wilson, Holtzman,

and Foether. Id. at 293. When Wilson arrived to the meeting, Raymond was also present.

Id. at 295. According to Wilson, he attempted to explain to Holtzman and Foether the

problems he was having with Raymond, including that Raymond had threatened him with

a gun. Id. at 295-99. Wilson alleges that in response, Foether merely stated that he was

not going to “tolerate this” and that Wilson needed to go out and do his job. Id. at 298-99.

Wilson asserts that he never informed Human Resources of a problem because he was

warned not to. Id. at 291. 

A few days later, Raymond approached Wilson and said that he needed a “favor.” Id.

at 300. According to Wilson, Raymond told him that production had gone down in DCXOM

since Wilson left, and that Raymond needed Wilson to transfer back to DCXOM until it

closed down, at which time he could return to a position in letter shop / bindery for which

he had applied. Id. at 300. Defendants assert that this decision was made because Wilson

was struggling in bindery and was unhappy, and because the supervisor of DCXOM had

poor supervisory skills and let employees take longer lunch breaks than permitted by

company policy. Foether Dep. 23; Holtzman Dep. 36-37; Raymond Dep. 44-48. Wilson

believed he was only temporarily moving to DCXOM, but Raymond had, in fact, transferred

him without his knowledge. After Wilson was back in DCXOM, Raymond approached him

and held a bullet to his face stating “these bullets tear shit up”. Pl Dep. 409-10. 

In May 2008, the night-shift of the bindery department was shut down, and Wilson

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was transferred to the day-shift. Id. at 82, 334. In July 2008, the DCXOM department was

shut down entirely and 11 permanent and temporary employees were laid off, including

Wilson. All 11 employees were black. Wilson learned for the first time that morning that

he was losing his job. Id. at 78. At that time, Wilson alleges that Holtzman gave him a

handout for Kelly Services and wished him good-luck. Wilson Aff. ¶ 44 (docket no. 19, ex.

A). Wilson also signed a change of status form, indicating that he was laid off as a result

of Budco losing Chrysler’s business, and that he was eligible for rehire. Pl. Dep. 374;

Foether’s Dep. 33-34; Status Change Form (docket no. 14, ex. K). When he contacted

Select Staffing, another temporary employment agency through which Budco was posting

its jobs, he was informed that he could not reapply because he was a former employee of

the company. Wilson Aff. ¶ 45 (docket no. 19, ex. A). 

B. Jeremy Page

A substantial portion of Wilson’s claims are based on the assertion that he was

treated differently than Jeremy Page, a white employee. Page worked the day shift as a

Level 3 Machine Operator in the DCXOM department along with Wilson from 2003-2007.

According to Wilson, Page was transferred to DCXOM because his supervisor in the letter

shop department, where he initially worked, wanted to fire him. Pl. Dep. 345-46; Pl. Aff.

¶¶ 9-10. 

Prior to working at Budco, Page attended approximately one and one-half years of

college, and worked as a supervisor and a machine operator for various companies since

1994. Page Application (docket no. 14, ex. G). While working at Budco, Page utilized

Budco’s tuition reimbursement program and took classes at Oakland Community College

in the Associate Business Program, including a class in Software Engineering. Page

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3 Defendants contend that the classes Page missed were not mandatory. 

7

Request Form (docket no. 14, ex. J). Page’s performance evaluations often praised his

mechanical skills, stating that they were “outstanding,” that he had “improv[ed] the

performance” of the stream-feed machine, and that he had mastered all the “little nuances

of the DCXOM program, computer software and equipment.” Page’s Evaluations 2005-

2006 (docket no. 14, ex. H). 

The evaluations also noted, however, that Page needed to improve his

communication skills and the quality of his work. Id. One evaluation stated that “As a

supervisor, [Page] must hold his team more accountable for the quality of the product that

is being built on his shift.” Id. Further, Wilson, Hampton, and Levingston, assert that Page

and his team made errors during production. Wilson Aff. ¶¶ 15 (docket no. 19, ex. A);

Hampton Aff. ¶¶ 9-11 (docket no. 19, ex. B); Levingston Aff. ¶¶ 7-13 (docket no. 19, ex. K).

Hampton and Levingston further assert that Page was not written up for these errors but

that other employees, including Levingston and another African-American employee,

Alberta Johnson, were written up instead. Hampton Aff. ¶ 11 (docket no. 19, ex. B);

Levingston Aff. ¶ 12 (docket no. 19, ex. K). Further, Wilson alleges that despite missing

seven Budco University classes, Page was never written up for these absences.3 Page

Class Attendance Report (docket no. 19, ex. J).

According to Wilson, when Page did not meet his production quotas, Holtzman

instructed Page to “tweak his numbers” so that he would appear to be meeting quotas.

Wilson Aff. ¶ 20 (docket no. 19, ex. A). Tweaking the numbers required Wilson to “make

up” the numbers, and thus, Wilson was also told to tweak his numbers. Id. ¶ 21. In 2007,

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Wilson became frustrated with Page’s performance and told Carol Kapron, the head of the

department, where Page had hid defective products that he made during his shift, but no

action was taken. Id. ¶¶ 22-24. Further, while Wilson and Page were working in DCXOM,

they each worked a few days in the bindery department, and Wilson asserts that he

produced nearly six times as many units each night. Id. ¶¶ 25-26. 

Page left Budco to work for a competitor after he was informed that DCXOM would

be dissolving. Wilson alleges that the competitor terminated Page. Pl. Dep. 343. Page

was subsequently rehired by Budco in February 2008 as a temporary employee and was

given the title of Level 3 Machine Operator. Foether Dep. 26 - 27. Page was then given

a position in letter shop / bindery, the same position for which Wilson had previously

applied, during the same week that Wilson was transferred back to DCXOM. Pl. Dep. 312,

340-41. Defendants admit that at the time of Wilson’s termination, Page, was being paid

more than Wilson, though they assert that Page was working as a Level 3 Supervisor while

Wilson was working as a Level 3 Machine Operator.

LEGAL STANDARD

A. Motion to Strike

Federal Rule of Civil Procedure 56(c)(4) provides that an affidavit offered in opposition

to a motion for summary judgment “must be made on personal knowledge, set out facts

that would be admissible in evidence, and show that the affiant is competent to testify on

the matters stated.” Fed. R. Civ. P. 56(c)(4). In considering a motion to strike, the Court

must “use a scalpel, not a butcher knife” and only strike portions that are inadmissible

under Fed. R. Civ. P. 56(c)(4). Upshaw v. Ford Motor Co., 576 F.3d 576, 593 (6th Cir.

2009) (internal citation omitted) (analyzing Fed. R. Civ. P.(e), provisions of which are

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incorporated into 56(c)(4) by the 2010 amendments to the Federal Rules of Civil

Procedure). In other words, the Court must only strike the inadmissible portions of an

affidavit, rather than the whole affidavit. It is the burden of the party submitting the affidavits

to demonstrate that the witness has personal knowledge of the statements contained in the

affidavit. Long v. Proctor & Gamble Mfg. Co., No. 03-1097, 2005 WL 1631033, *1 (W.D.

Tenn. July 8, 2005). Further, hearsay evidence cannot be considered on a motion for

summary judgment. Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir. 1994). 

B. Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment may

be granted “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). A fact is

“material” for purposes of summary judgment if proof of that fact would have the effect of

establishing or refuting an essential element of the cause of action or a defense advanced

by the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). A dispute over

a material fact is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). Accordingly, when a reasonable jury could not find that the nonmoving party is

entitled to a verdict, there is no genuine issue for trial and summary judgment is

appropriate. Id.; Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir.1993). In

considering a motion for summary judgment, the Court must view the facts and draw all

reasonable inferences in a light most favorable to the nonmoving party. 60 Ivy St. Corp.

v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The Court is not required or permitted,

however, to judge the evidence or make findings of fact. Id. at 1435-36. 

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ANALYSIS

A. Motion to Strike

In support of his opposition to Defendants’ summary judgment motion, Wilson

submitted affidavits from himself, Hampton, Adams, and Levingston. Defendants seek to

strike the affidavits because: they are not based on personal knowledge; they contain

inadmissible hearsay, speculation, opinion and conjecture; Wilson’s affidavit contradicts his

prior deposition testimony; and the affidavits violate the statutes of limitations applicable

to this action.

Defendants cite specific paragraphs in their motion to strike. In doing so they also

assert that relevant paragraphs in the affidavit which should be struck are not limited to

those cited in the brief. It is Defendants’ obligation to specifically identify which statements

in the affidavits should be struck. See AT&T v. Shared Comm’ns Servs., No. 93-3492,

1995 U.S. Dist. LEXIS 13706, *9 (E.D. PA., Sept. 13, 1995) (“Although AT&T asserts that

the paragraphs it points to are only examples of the inadmissible nature of the entire . . .

affidavit, it is AT&T’s burden as the party moving to strike the affidavit to show the

inadmissibility of each statement in the affidavit.”) (emphasis added); Ernst Seidelman

Corp. v. Mollison, 10 F.R.D. 426, 428 (S.D. Ohio 1950) (“The Court cannot and should not

be expected to go through the . . . affidavit with a fine-tooth comb and pick out the certain

portions which defendants . . . feel should be stricken.”) (internal quotations omitted).

Therefore, the Court here will only consider striking statements that Defendants both

specifically identify and support with authority for striking. See Reddy v. Good Samaritan

Hosp. & Health Ctr., 137 F.Supp.2d 948, 958 n.14 (S.D. Ohio 2000) (“Because [Defendant]

has not provided any argument in support of its request to strike the paragraphs cited in

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footnotes, the Court does not deem those paragraphs properly challenged and will not

address them.”). The Court will address each paragraph cited by Defendants in turn below.

1. Wilson’s Affidavit

4. While working as a temp in the Bindery Department, I observed at

least two white temps be hired on as full-time employees after a period

of only a few months. During this same time, I observed five or six

black temps who worked between two and five years before they were

hired on.

Defendants argue that Wilson does not establish personal knowledge for this claim,

fails to name any of the individuals, and does not give a relevant time period. The Court

disagrees and will not strike paragraph 4. Wilson establishes that he has personal

knowledge of his claim in his supplemental affidavit, by explaining that he knew who was

hired full-time because, when an employee was hired as a full-time employee at Budco,

they spent a day doing a walking tour of the shop floor. Wilson Supp. Aff. ¶ 7. “When

defective affidavits are submitted, the submission of additional affidavits is sufficient to cure

any defect which may have existed in the original affidavit.” United States v. Macomb

Contracting Corp., No. 3-84-1095, 1988 U.S. Dist. LEXIS 17608, * 41 (M.D. Tenn. Oct. 14,

1988) (internal citations omitted). 

Defendants also assert that the Court should strike paragraph 4 because it is vague

and unrelated to the discrimination against Wilson. In support of this assertion, Defendants

rely on Bailey v. Youth Villages, Inc., 239 F.R.D. 483, 486 (M.D. Tenn. 2006), in which the

district court struck statements that had occurred two years before the alleged events

giving rise to plaintiff’s discrimination claim and involved employers totally unrelated to the

alleged discriminatory incident involving the plaintiff. Id. The Court will not strike

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paragraph 4 for this reason, despite the fact that Wilson cannot remember specific

information, including the names of employees. In Ercegovich v. Goodyear Tire & Rubber

Co., 154 F.3d 344, 356-57 (6th Cir. 1998), the Sixth Circuit stated:

[M]anagement’s consideration of an impermissible factor in one context may

support the inference that the impermissible factor entered into the

decisionmaking process in another. . . .We therefore believe that evidence

of a corporate state-of-mind or a discriminatory atmosphere is not rendered

irrelevant by its failure to coincide precisely with the particular actors or

timeframe involved in the specific events that generated a claim of

discriminatory treatment . . . .This is especially true when the discriminatory

statement is not an off-hand comment by a low-level supervisor but a remark

by a senior official evidencing managerial policy.

Id. (internal citations and quotations omitted). Thus, the Court does not view evidence of

racial discrimination in hiring practices at Budco as irrelevant to Wilson’s claim that he was

discriminated against by being transferred back to DCXOM and by not being hired for a job

ultimately given to Page. 

5. Many of the black temps within the company quit because they were

discouraged with Budco’s hiring practices.

Defendants assert that the Court should strike paragraph 5 for lack of personal

knowledge. In his supplemental affidavit, Wilson explained that he knew this information

because he was told by the employees why they were quitting. Wilson lacks personal

knowledge of information that he received from these employees. See Sperle v. Mich.

Dep’t of Corr., 297 F.3d 483, 495-96 (6th Cir. 2002) (holding that plaintiff-affiant did not

have personal knowledge of statements made to him by a third party); Weberg v. Franks,

229 F.3d 514, 526 n.13 (6th Cir. 2000) (disregarding several of plaintiff’s allegations

because they were based on hearsay, not personal knowledge). Therefore, both Wilson’s

statement in paragraph 5, and his explanation in paragraph 11 of his supplemental affidavit,

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4 Paragraph 11 states: “Again, while I cannot recall any names, several African

American temporary employees told me that they were quitting because they had been

working for so long, some in excess of one year, and still had not been hired into the

company.”

13

will be struck.4

 

6. In 1995, I finally complained to my manager, Ed Kramer, because it

had been nearly a year and a half and I was still a temp.

Defendants assert that this statement should be struck because it is vague and

irrelevant in accordance with Bailey, cited above. The Court disagrees because, as stated

above, evidence of discrimination in hiring practices at Budco is relevant to Wilson’s claim

of discrimination.

7. One day, in 1998, I went to see my manager, Jim Labon, who told me

that if my team hit 10,000 units he would buy us all pizza. I told Jim that

I could buy my own pizza, but he should remember my work around the

time we got our performance appraisals so that maybe I could buy a

house in a nice neighborhood like his. He replied that black people

don’t live in his neighborhood, and that his dog had never seen a black

person.

8. When we moved to our new headquarters in 2000, the factory had air

conditioning. However, the air conditioning would turn off about a half

hour after the day shift left. I asked why the air conditioning turned off

during second shift because it was too hot in the factory, and Jim

replied that he thought black people liked it hot. 

Defendants move to strike paragraphs 7 and 8 from Wilson’s affidavit because they

contain inadmissible hearsay, speculation, opinion, and conjecture. The Court will not

strike these statements on those grounds. The statements were made directly to Wilson,

and are not statements offered for the truth of the matter asserted. The Court will,

however, strike them because, as Defendants assert, they are unrelated to the alleged

discrimination against Wilson. The statements made by Labon happened in 1998 and 2000

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respectively, and there is no allegation that Labon had anything to do with the decision to

transfer or to not hire Wilson. Bailey, 239 F.R.D. at 486. (“vague and unrelated allegations

of discrimination made by an individual regarding another employee who had nothing to do

with the alleged discrimination against Plaintiff are irrelevant and inadmissible.”); See also

Smith v. Leggett Wire Co., 220 F.3d 752, 759-60 (6th Cir. 2000) (finding district court

committed reversible error by admitting evidence of racial statements made by co-workers

of African-American employee long before his termination, none of whom were responsible

for the decision to terminate).

10. I had heard of Page before he worked as a supervisor in my

department. He worked in Letter Shop, under supervisor Mary

McCombs [sic], who told me that she wanted to get rid of him because

he wasn’t a very good worker. 

Defendants argue that paragraph 10 should be struck because it contains hearsay.

Although the statement is offered as proof that Page was a bad employee, as Wilson

argues, it is admissible as nonhearsay under Federal Rule of Evidence 801(d)(2)(D). Rule

801(d)(2)(D) provides that “statement(s) by the party’s agent or servant concerning a

matter within the scope of the agency or employment, made during the existence of the

relationship” are admissible as nonhearsay. Fed. R. Evid. 801(d)(2)(D). Defendants argue

that this exception does not apply because McComb was not a decision-maker with regards

to Wilson’s employment, and did not take part in personnel decisions regarding Wilson.

In support defendants cite DeBiasi v. Charter County of Wayne, 537 F. Supp.2d 903, 914-

15 (6th Cir. 2008), in which the Sixth Circuit held that statements made by employees

regarding plaintiff’s promotion were inadmissible under 801(d)(2)(D) because the employee

did not oversee the promotion process, and the plaintiff failed to demonstrate that

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personnel decisions were within the scope of employment. Defendants also cite Hill v.

Speigel, Inc., 708 F.2d 233, 236-37 (6th Cir. 1983), in which the court held that statements

made by employees suggesting that plaintiff was fired because of his age were outside the

scope of 802(d)(2)(D) because the employees were not involved in the decision to fire

plaintiff. 

Defendants’ reading of Rule 802(d)(2)(D) is too narrow. Whether something is within

an employee’s scope of employment extends beyond matters involving direct decisionmakers. Carter v. Univ. of Toledo, 349 F.3d 269, 275 (6th Cir. 2003). As Wilson argues,

McComb’s comments about Page fall squarely within the scope of her employment

because she was a supervisor, who gave evaluations of those working under her, including

Page. Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 722 (6th Cir. 2005) (citing

Barner v. Pilkington N. Am. Inc., 399 F.3d 745, 750 (6th Cir. 2005)) (holding that employee

charged with managing the promotional process, was within his authority when he spoke

on the matter of promotions). Further, although comments made by individuals not

involved in the decision-making process cannot constitute direct evidence of discrimination,

Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433 (6th Cir. 2002), Wilson does not offer

the statement as direct evidence of discrimination with regards to the adverse actions taken

against him; rather, he offers the statement as proof that Page was a poor employee and

as circumstantial evidence of discrimination.

13. During the years that Jeremy and I worked on different shifts, my

production quotas and results were always higher than Jeremy’s.

14. I was always able to produce more than Jeremy. On an average

night, I would push myself and my team and we would put out around

9,000 units. Jeremy could only produce 3,000 or so.

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5 Defendants spend a substantial amount of time arguing that Wilson’s

assertions that he was a better producer than Page are inherently unreliable, and that

production numbers demonstrating that Wilson produced more product than Page are not

relevant for comparing the skills of employees on different shifts. But whether production

numbers accurately reflect that Wilson was a superior employee to Page is a question of

fact for a jury to decide. 

16

Defendants argue that Wilson lacks personal knowledge for these statements, citing

Jackson v. Boatman, No. 4:06-cv-75, 2007 WL 2320531, *7 n.1 (W.D. Mich. Aug. 10,

2007), in which the district court held that the plaintiff did not have personal knowledge of

events which happened outside of his presence. See also Buchanan v. City of Bolivar, 99

F.3d 1352, 1355 n.2 (6th Cir. 1996) (finding that although plaintiff stated in certified

complaint that her son washed three police vehicles, she was not present at time and

therefore, did not have personal knowledge of matter asserted). 

Wilson’s supplemental affidavit addresses the problem. He explains that production

quotas were listed on the board shop floor, and both the number of kits that Page and

Wilson were required to produce, and the number they actually produced, were available

in the computer. Pl. Supp. Aff. ¶¶ 16-17. Further, paragraph 14 of Wilson’s affidavit

provides specific details as to how many kits Wilson and Page produced.5

15. Jeremy would mess up the product all the time, and I would

discover his mistakes on a weekly basis.

16. When Jeremy would mess up his product, it was usually his entire

production run for the day.

19. Jeremy and his crew would have to spend a lot of their time fixing

mistakes from the day before.

Defendants assert that Wilson lacks personal knowledge for the foregoing

statements, and the Court largely agrees. The first half of paragraph 15 and all of

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17

paragraphs 16 and 19 will be struck for lack of personal knowledge. Though Wilson

explains in his supplemental affidavit how he knew that Page “messed up” products, Wilson

does not sufficiently demonstrate knowledge for the conclusory and vague assertions that

Page messed up “all the time” or that it was “usually his entire production run.” Further,

though Wilson asserts that he knew that Page spent a “lot” of time fixing errors because

Holtzman told him that information, Pl. Supp. Aff. ¶ 29, as discussed above, one does not

have personal knowledge of information obtained through a third-party. Therefore, the

Court will strike paragraphs 16 and 19 and the first clause of paragraph 15 from Wilson’s

first affidavit, and paragraph 29 of the supplemental affidavit. 

20. When Jeremy failed to meet his production goal for the day, JT

Holtzman would tell him to “tweak it,” meaning that he would change

his quota for the day in the computer so it looked like he was meeting

his goals.

Defendants assert that paragraph 20 should be struck for lack of personal

knowledge. The Court disagrees and finds that Wilson demonstrates personal knowledge

by asserting that he heard Holtzman instruct Page to tweak his numbers. Pl. Supp. Aff.

¶¶ 31-33. Further, Wilson also had to tweak his own numbers as a result of Page tweaking

his.

Defendants also argue that paragraph 20 should be struck because it contradicts

Wilson’s previous sworn deposition testimony. Defendants argue that at the deposition,

Wilson was asked several times to describe the conduct that he perceived as discriminatory

at Budco. In response to these questions, Wilson failed to mention that Holtzman

instructed Page and Wilson to tweak their numbers. See Wilson Dep. at 382 (Asking

Wilson to state “Any additional reasons why you thought you were treated unfairly that

2:09-cv-13385-SJM-RSW Doc # 39 Filed 01/06/11 Pg 17 of 43 Pg ID 667
6 Defendants assert that paragraphs 7-8 should be struck on this basis, but

because the Court already struck the paragraphs for different reasons, see supra, the Court

will not address the present argument.

18

would lead you to believe that your race had something to do with your termination?”);

Wilson Aff. ¶¶ 20-21 (docket no. 19, ex. 2).6 

The Sixth Circuit has held that a party cannot file an affidavit, after a motion for

summary judgment has been made, which contradicts his earlier deposition testimony.

Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). When deciding the

admissibility of a post-deposition affidavit at the summary judgment stage, the court must

first determine whether the affidavit directly contradicts the non-moving party’s prior sworn

testimony. Areal, S.R.L. v. PCC Airfoils, LLC., 448 F.3d 899, 908 (6th Cir. 2006). When

there is no direct contradiction, the court should “not strike or disregard the affidavit unless

the court determines that the affidavit constitutes an attempt to create a sham fact.” Id. at

909. Whether something is a “sham fact” turns on “whether the affiant was cross-examined

during his earlier testimony, whether the affiant had access to the pertinent evidence at the

time of his earlier testimony or whether the affidavit was based on newly discovered

evidence, and whether the earlier testimony reflects confusion [that] the affidavit attempts

to explain.” Id. at 908-09.

The statement in Wilson’s affidavit are not directly contradictory to his prior

deposition testimony. Further, the Court does not find that they are “sham facts.” Wilson

was never directly questioned about the instances recounted in his affidavit, and he was

under no obligation to volunteer information. Thus, he should not now be prevented from

providing greater detail as to events which support his claims. See Briggs v. Potter, 463

2:09-cv-13385-SJM-RSW Doc # 39 Filed 01/06/11 Pg 18 of 43 Pg ID 668
7 For the same reason, the Court will not strike paragraph 21, which states:

21. Holtzman would tell me to “tweak” my numbers as well, increasing

them so that it looked like I was meeting my goals. 

8 Accordingly, paragraph 39 of the supplemental affidavit which states “From

the way he would insult me, I could sense he was trying to get me to yell back at him, or

otherwise act insubordinately” will be struck. Furthermore, the sentence in paragraph 41,

“Based on the context and tone of his voice, it was clear that the statement was a threat,”

will also be struck. On the other hand, and for the same reasons, the terms of Paragraph

19

F.3d 507, 513 (6th Cir. 2006) (whene plaintiff was questioned generally about a

conversation but was not asked specifically what was said to him, he was “under no

obligation to volunteer” anything said during the conversation and “should not be prevented

from providing greater detail in a later affidavit.”).7

 

30. Larry was an abusive Manager who was constantly trying to get a

rise out of me.

31. One day, when I asked Larry what happened to his motorcycle, he

told me that he had sold it buy a Glock (pistol), and that in fact had

bought two so that he could keep one in his car, just in case. He said

it in a real nasty tone, almost as though he was threatening me with the

guns.

Defendants assert that paragraphs 30-31 should be struck because they are merely

conjecture and opinion. The statement that “Larry was an abusive manager” and the

statement in paragraph 31 are opinion testimony, and, therefore, admissible. See Fed. R.

Evid. 701. The second half of paragraph 30, however, which states that Raymond was

trying to get a rise out of Wilson is a conclusory speculation of what Raymond’s intentions

were and is inadmissible. See Jones v. Butler Metropolitan Housing Authority, 40 Fed.

Appx. 131, 135 (6th Cir. 2002) (affidavits that recount hearsay, impressions of what others

in organization were thinking, and opinions of those impressions must be struck).8

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40, “Raymond told me about the gun he kept in his car ‘just in case,’ he said it in a nasty

way then walked away without saying more” will not be struck.

20

Defendants also assert that several additional statements in Wilson’s supplemental

affidavit should be struck.

6. Based on my many years as an employee, I learned that all Budco

shop employees start as temporary employees.

7. I knew when someone was hired as a full-time employee at Budco

because I observed as they spent the day touring the shop floor. The

tour was a routine part of the hire of a full time employee. It was like a

ceremony.

8. While I do not specifically recall any names, I observed that all of the

white temporary employees were hired into the company within a few

months of when they started. I observed that all of the African

American temporary employees were required to work significantly

longer period of at least one year.

9. In fact, I was a temporary employee for eighteen months until Budco

hired me as a full time employee.

10. I had to threaten to quit before I was offered full time employment.

Defendants argue that these paragraphs should be struck because they are

irrelevant according to the Bailey decision. As discussed previously, following the law of

Ercegovich, 154 F.3d at 356, the Court disagrees and finds evidence that Budco

considered race in its hiring decisions as relevant to Wilson’s claim that adverse

employment actions were taken against him. Further, Wilson demonstrates how he knew

that white employees were hired faster - - he states that saw groups of newly hired

employees touring the shop floor. 

13. Mary McCombs [sic] was Jeremy’s manager when she told me that

she wanted to get rid of him because he was not a very good worker.

Defendants first assert that this statement should be struck because it is inadmissible

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21

under Bailey because it is vague and irrelevant. Second, Defendants argue it should be

struck in accordance with Jones, 40 Fed. Appx. at 135, because it purports to show personal

knowledge of the thoughts and opinions of someone else who had authority over Wilson.

Finally, Defendants argue that it is hearsay. As discussed previously in connection with the

Court’s discussion of paragraph 10 of Wilson’s first affidavit, the Court does not find that

this statement is hearsay or irrelevant. Further, the statement does not give an impression

of what McComb said, it relates what McComb actually said, and, therefore, will not be

struck under Jones.

31. On many occasions I personally observed Jeremy Page tell

Holtzman he had not met his goal for the day.

32. I heard Holtzman telling Page to “tweak” his numbers. This meant

Page should change the production quota to equal the amount he had

actually produced.

33. Holtzman would tell me to “tweak” my numbers if I produced more

than my quota, increasing it so it did not look like I was going

substantially over my standard.

Defendants argue these paragraphs should be struck because they constitue

inadmissible hearsay and because they are unrelated to alleged acts of discrimination

against Wilson, under the analysis of Bailey. The Court will strike paragraph 31, but not

paragraphs 32 through 33. 

Page’s statement is hearsay. Holtzman’s statement, however, is nonhearsay under

Rule 801(d)(2)(D) because Holtzman was the manager in DCXOM, and therefore,

statements regarding production numbers in DCXOM were within his purview. Further,

evidence that Holtzman, who was involved in the decision to transfer Wilson back to the

DCXOM department, treated Page preferentially, is relevant to the claim Wilson makes in

2:09-cv-13385-SJM-RSW Doc # 39 Filed 01/06/11 Pg 21 of 43 Pg ID 671
9 For the same reason, paragraph 18 of Wilson’s first affidavit, that Defendants

argue should be struck as vague and irrelevant, will not be struck. Paragraph 18 states “I

witnessed Holtzman telling Jeremy to write up Alberta Johnson, a black subordinate of his,

for the mistakes that Jeremy was responsible for.” 

10 Defendants dispute that Hampton worked under Page, but the Court must

accept as fact that he did for purposes of summary judgment. At the very least,

Defendants’ assertions on the issue establish a material issue of fact for a jury. 

22

that regard.9

Finally, Defendants assert that Wilson’s affidavit, along with the other three

affidavits, must be struck because the statements reference actions which violate the

applicable statute of limitations period. Defendants’ argument, however, relies on an

incorrect application of the statute of limitations. A plaintiff may rely on evidence that,

although barred by the statute of limitations or the doctrine of claim preclusion as

independently actionable conduct, is admissible to prove motive or intent. Black Law

Enforcement Officers Ass’n v. City of Akron, 824 F.2d 475, 483 (6th Cir. 1987) (“The

function of a statute of limitations is to bar stale claims. . . .The statue of limitations is a

defense. . ., not a rule of evidence. Therefore, . . . it has no bearing on the admissibility of

evidence.” (internal quotations and citations omitted)). The Court will not strike the motions

based on the statute of limitations. 

2. Hampton’s Affidavit

8. Jeremy Page signed off on these quality checks indicating the

correct parts and components were contained within the particular kits

we were running.

Defendants argue that this statement should be struck in accordance with the

decision in Jones. The Court disagrees. Hampton explains that she worked under the

supervision of Page from 2003 through 2005,10 and she, therefore, would know what

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23

Page’s job duties were. Further, Hampton is not claiming to have knowledge of Page’s

thoughts or opinions, only of his job duties.

9. On several occasions, kits were run with the wrong or incorrect

components such as wrong bar codes, wrong addendums, or faulty

shrink wrap.

10. The kits were later discovered to be in error.

11. Jeremy Page was never written up for these errors, but rather

Alberta Johnson was written up. JT Holtzman expressed that she

would not object because she was “just a little lap dog.”

Defendants argue that these statements are not based on personal knowledge

because Hampton did not work under Page’s supervision. Hampton’s supplemental

affidavit, however, affirms that her statements were based on personal knowledge, that she

worked under the supervision of Page from 2003 through 2005, that she knew that the kits

were run incorrectly because the kits had to be reworked, and that she heard Holtzman tell

Page to write up Johnson. Hampton Supp. Aff. ¶¶ 3-8. Thus, the Court will not strike these

statements for lack of personal knowledge.

Defendants argue that the statements must nevertheless be struck in accordance

with Jones. The Court disagrees and finds that the paragraphs merely describe daily

activities at Budco and recount instances when Holtzman appeared to treat Page

preferentially. 

12. On many occasions, Supervisor Jeremy Page would not run the

lines to capacity and the crew would not be able to meet the daily

production quotas.

Again, Defendants assert that this paragraph should be struck pursuant to Jones.

The Court reiterates its conclusion that the statement does not express an impression of

what Page was thinking, but rather, recounts Hampton’s experiences working under Page.

2:09-cv-13385-SJM-RSW Doc # 39 Filed 01/06/11 Pg 23 of 43 Pg ID 673
24

13. Jeremy would speed up the line, forcing us to work harder and then

he kept me beyond the end of my shift without any compensation for

my overtime. I had to stay because if I left, it was considered walking

off the job even though the shift had actually ended. 

Defendants argue that paragraph 13 of Hampton’s affidavit should be struck

because it contains inadmissible hearsay, speculation, opinion, and conjecture.

Defendants further argue it should be struck on the authority of Jones. The Court

disagrees. This statement is not an opinion or an impression, but rather, is a factual

recounting of an event in which Hampton was involved.

14. While working for Kim Wilson, I observed manager J.T. Holtzman

and Larry Raymond picking on Mr. Wilson for issues created by the day

shift, such as misplaced boxes or trash in the workplace.

Defendants argue that this statement should be struck in accord with the Jones

analysis cited above, and the Court will strike the statement in part. Hampton’s assertion

that Wilson was being “picked on” is an opinion and it is admissible in accordance with Fed

R. Evid. 701. The portion of the statement which asserts that the reason Wilson was being

picked on was for “issues created by the day shift,” is merely Hampton’s impression of what

Holtzman and Raymond were thinking, and it will be struck. 

15. Kim Wilson was often called over by employees to troubleshoot or

repair machines such as Great Lakes Machine or the Stream Feed

Machine. 

Defendants argue that this statement also purports to show the personal knowledge

of others’ thoughts and opinions and should be struck under Jones. The Court disagrees,

since no part of the statement asserts personal knowledge of anyone else’s thoughts or

opinions.

16. I often observed Larry Raymond refer to Leslie Peeples and Tonja

Gray as “stupid bitches.”

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25

Defendants argue that paragraph 16 of Hampton’s affidavit should be struck

because it is irrelevant and inadmissible under FRE Rule 403. In support of this assertion,

Defendants rely on Schrand v. Federal Pacific Electric Co., 851 F.2d 152 (6th Cir. 1988),

in which the Sixth Circuit held that the testimony of two employees about allegedly

discriminatory statements made to them were irrelevant and inadmissible because the

person who made the decision to terminate the plaintiff was not involved in the decision to

terminate the two employees. Id. at 156. Further, Defendants assert that the statement

should be struck as irrelevant pursuant to Bailey, 239 F.R.D. at 486.

The Court will not strike paragraph 16 because the present case is distinguishable

from both Schrand and Bailey. First, the testimony is not irrelevant, as it recounts

statements allegedly made by Raymond, who is a defendant in the action and was part of

the personnel decisions regarding Wilson. Further, the probative value of these statements

is not outweighed by the danger of unfair prejudice, confusion of issues, or misleading the

jury. Rather, the fact that Raymond made derogatory statements to African-American

employees is highly probative of Wilson’s race discrimination claim, particularly when

Defendants admit that Raymond did not speak in a derogatory manner to white employees.

Finally, Defendants assert that this statement also purports to disclose knowledge

of other’s thoughts and opinions and should be struck pursuant to Jones. The Court will

not strike the statements on this ground, since the statement is nothing more than a

recounting of alleged statements made by Raymond.

3. Adams’s Affidavit

4. In December 2004, I was instructed that I would be responsible for

repairing and maintaining the machines. I was told that Material

2:09-cv-13385-SJM-RSW Doc # 39 Filed 01/06/11 Pg 25 of 43 Pg ID 675
26

Handlers, Machine Operators, Supervisors, and even Managers should

not be attempting to repair any machines.

5. I worked with Defendant Larry Raymond beginning in November

2004.

6. I have observed many interactions with Defendant Larry Raymond

and the employees he supervised.

Defendants argue that the foregoing statements should be struck under Bailey

because they are vague and unrelated to allegations of discrimination against Wilson. The

Court disagrees. The statements are not vague, nor do the assert any incidents of

discrimination. The Court also rejects Defendants’ argument that paragraphs 5 and 6

should be struck pursuant to Jones. The statements do not give impressions of what

others were thinking or opinions of those impressions. They merely provide a basis of

personal knowledge for statements in Adams’s affidavit regarding Raymond’s interactions

with his employees.

7. On many occasions, I observed Defendant Larry Raymond speak to

African American employees, especially female African American

employees in a derogatory and demeaning fashion by often referring to

them as “lazy bitches.”

8. During one specific incident, Defendant Larry Raymond called Leslie

Peoples [sic], Ebony Stoner, and Tonja Gray “stupid bitches.”

Defendants assert that these paragraphs should be struck as inadmissible under

Rule 403 because the statements they contain are irrelevant and their probative value is

outweighed by the danger of unfair prejudice. The Court disagrees, and finds that

statements made by Raymond to African-American employees are relevant to Wilson’s

claims, and that the potentially prejudicial nature of the statements are not outweighed by

their probative value.

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27

Defendants also assert that these paragraphs should be struck under Bailey. As

discussed previously however, allegations that Raymond spoke to black employees in a

derogatory manner is not irrelevant to Wilson’s claim because Raymond was involved in

the decision to transfer Wilson back to DCXOM. 

Finally, Defendants assert that the statements should be struck on the authority of

Jones. The Court disagrees. The paragraphs recount alleged statements made by

Raymond, and Adams’s opinion that Raymond spoke in a derogatory and demeaning

fashion, which is admissible under Fed. R. Evid. 701.

9. Defendant Budco has a no cell phone policy. I observed an African

American individual by the name of Elijah Hatcher looking at his

personal cell phone to see who was calling him during work hours.

Elijah did not answer his cell phone, but merely pulled the phone from

its holster to check the caller ID. Elijah was immediately fired for using

a cell phone. 

10. I observed a Caucasian employee by the name of Jared Macomb

using his personal cell phone during working hours. Jared Macomb

was merely approached by Defendant Larry Raymond and reminded of

the “No Cell Phone” policy. Jared is still employed at Budco to this

day.

Defendants assert that the Court should strike the statements because Adams did

not have personal knowledge of the facts recited, and because the statements are untrue

and unreliable. The Court will not strike on the ground that the statements are untrue or

unreliable because whether or not they are is a question of fact for the jury. 

The Court will, however, strike the statements based on a lack of personal

knowledge by Adams. The statements merely reflect Adams’s impressions of the reasons

for why Hatcher was fired and Macomb was not, and do not appear to be grounded in

anything more than rumor or speculation. See Jones, 40 Fed. Appx. at 135 (striking

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28

statements in affidavits that “give only each individual’s impression of what others in the

organization were thinking and their opinion about those impressions”).

11. Defendant Larry Raymond did not speak to me in a derogatory manner.

Defendants assert that this statement is irrelevant, vague, and states only an

impression, and should be struck under Bailey and Jones. The Court disagrees. Raymond’s

treatment of African-Americans is relevant. Further, stating that he did not speak in a

“derogatory manner” is opinion testimony clearly admissible under Rule 701. 

12. Defendant Larry Raymond refused to speak with me or interact with

me after he became aware that my spouse is African American.

13. Throughout my entire employment at Budco Corporation, I observed

Defendant Larry Raymond and other Budco managers speaking

derogatorily and in a demeaning fashion to African American

employees. 

14. Throughout my employment at Budco Corporation, I observed

Defendant Larry Raymond and other Budco managers using abusive

language and name calling toward African American employees. 

15. Throughout my employment at Budco Corporation, I never observed

Defendant Larry Raymond or any other Budco managers speaking to

Caucasian employees in an abusive, derogatory, or demeaning manner.

Defendants again assert the foregoing statements should be struck pursuant to Rule

403 and in accordance with the decision in Bailey. By the analysis set forth above,

however, the Court disagrees as to the portions of the statements pertaining to Raymond.

The Court will, however, strike the portion of the claim asserting that “other Budco

managers” spoke in a derogatory tone because Wilson does not specify whether these

managers were involved in any discriminatory personnel decisions. 

Defendants also assert that the statements should be struck pursuant to the Jones

decision because the statements merely give impressions of what others were thinking.

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29

The Court agrees as to paragraph 12 because it is merely Adams’s impression of why

Raymond would not speak to him. The Court disagrees as to paragraphs 13-15, and finds

that ,the opinion testimony is admissible under Rule 701.

4. Levingston’s Affidavit

8. Jeremy Page signed off on these quality checks indicating the

correct parts and components were contained within the particular kits

we were running.

9. On several occasions, kits were run with the wrong or incorrect

component parts.

10. Since I was working at the end of the line, I had no opportunity to

check the sealed kits for their internal contents prior to packing in

boxes for shipment.

11. The kits were later discovered to be in error.

12. I was subsequently written up for these errors even though I was

not responsible for performing any quality checks nor did I sign off on

any documentation indicating the kits were correct.

Defendants argue that these statements should be struck for lack of personal

knowledge and because they are untrue. The Court will not strike on the basis that these

statements are untrue because whether they are or are not is a factual question to be

decided by a jury. 

The Court will not strike the statements for a lack of personal knowledge. As to

paragraphs 8-11, Levingston demonstrates that he had personal knowledge of Page’s

duties and of the errors in kits produced by Page, by asserting that he worked under Page

and was responsible for pulling completed kits off the line. 

Finally, as to paragraph 12, Defendants’ argument that this statement should be

struck for lack of personal knowledge is baseless because Levingston clearly has personal

2:09-cv-13385-SJM-RSW Doc # 39 Filed 01/06/11 Pg 29 of 43 Pg ID 679
30

knowledge of incidents in which he was directly involved. 

Defendants also assert that the statements should be struck in accordance with the

law of Jones. The argument is without merit, however, because the statements are a

factual recounting of certain events and they do not set forth impressions of what others

were thinking or opinions of those impressions. The same analysis is applicable to

paragraph 13 of the affidavit.

13. Jeremy Page was never written up for these errors even though he

performed the quality checks and signed off on the contents of the kits.

14. Throughout my employment at Budco, I observed and experienced

Budco managers using abusive language and name calling toward

myself and other African-American employees.

15. Throughout my employment at Budco Corporation, I never observed

Budco managers speaking to Caucasian employees in an abusive,

derogatory, or demeaning manner.

Defendants assert that the foregoing statements should be struck under authority

of Fed. R. Evid. 403 and Schrand. The Court agrees. The statement asserts only vaguely

that “managers” at Budco used abusive language toward African-Americans and not toward

white employees. There is no assertion that these managers played any part in the

decisions regarding Wilson.

B. Summary Judgment

Defendants move for summary judgment as to Wilson’s entire complaint. Wilson

asserts that there are at least two triable claims: 1) that Page, a less qualified white

employee, was hired for a position, for which Wilson had also applied, on the day-shift of

letter shop / bindery and 2) that Wilson was transferred back to DCXOM because

Defendants wanted to get rid of him. 

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11 In Wilson’s response brief, Wilson’s counsel at the time asserted that the

proper analysis for the Title VII claim is one of a mixed-motive. During a hearing on the

motion, however, Wilson’s current counsel stated that she views this case as a singlemotive case. Due to this concession, and the fact that Wilson only raised the issue in

response to Defendants’ motion for summary judgment, the Court will analyze this claim

pursuant to the single-motive, rather than the mixed-motive, framework for discrimination.

31

1. Individual Liability

Wilson alleges claims of race discrimination pursuant to Title VII, the ELCRA, and

42 U.S.C. § 1981 against Budco and Raymond. As Wilson conceded during a hearing on

the motion, an individual who does not qualify as an “employer” is not subject to individual

liability under Title VII. Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997)

(“We now hold that an individual employee/supervisor, who does not otherwise qualify as

an ‘employer’ may not be held personally liable under Title VII.”). Individual liability may,

however, be imposed pursuant to § 1981 and the ELCRA. See Whidbee v. Garzarelli Food

Specialists, Inc., 223 F.3d 62, 75 (6th Cir. 2000) (internal citations omitted) (holding that

individuals may be held liable under § 1981 provided there is affirmative link connecting

actor with discriminatory action); Elezovic v. Ford Motor Co., 472 Mich. 408, 411 (2004)

(“We hold that an agent may be individually sued under § 37.2202(1)(a) of the [Civil Rights

Act]”). Therefore, Raymond may not be held individually liable for discrimination under Title

VII, and the Court grants summary judgment as to Wilson’s claim on this issue. The claims

against Raymond for violation of the ELCRA and § 1981 are analyzed below.

2. Discrimination Claims

Absent direct evidence of discrimination, single-motive discrimination claims brought

pursuant to Title VII, § 1981, and the ELCRA are analyzed under the McDonnell Douglas

/ Burdine burden-shifting framework.11 White v. Baxter Healthcare Corp., 533 F.3d 381,

2:09-cv-13385-SJM-RSW Doc # 39 Filed 01/06/11 Pg 31 of 43 Pg ID 681
32

391 (6th Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973),

as modified by Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)); Jackson v.

Quanex Corp., 191 F.3d 647, 658 (“We review claims of alleged discrimination brought

under § 1981 and the [ELCRA] under the same standards as claims of race discrimination

brought under Title VII.”). Under this framework, the plaintiff bears the burden of

establishing a prima facie case of employment discrimination by demonstrating that: “1) he

is a member of a protected class; 2) he was qualified for his job; 3) he suffered an adverse

employment decision; and 4) he was replaced by a person outside the protected class or

treated differently than similarly situated non-protected employees.” White, 533 F.3d at

391. If plaintiff proves a prima facie case, the burden shifts to the defendant to offer

evidence of a legitimate, non-discriminatory reason for the adverse employment action.

Id. Finally, if defendant meets this burden, the burden then shifts back to the plaintiff to

demonstrate that the reason articulated was not the true reason, but merely a pretext for

discrimination. Id. 

First, the Court examines whether Wilson has met his burden of establishing a prima

facie case. This burden is “not onerous.” Burdine, 450 U.S. at 253. Because there is no

assertion that Wilson was replaced in the bindery department by Page, Wilson must be

able to establish that he was similarly situated to meet the fourth prong of a prima facie

case. To be deemed “similarly situated”, “the plaintiff and the employee with whom the

plaintiff seeks to compare himself or herself must be similar in ‘all relevant aspects’” of their

respective employment circumstances. McMillan v. Castro, 405 F.3d 405, 414 (6th Cir.

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12 Defendants do not directly address the other elements of a prima facie case

of discrimination, and therefore, the Court will not address them in depth. It is undisputed

that Wilson is a member of a protected class, and there is sufficient evidence to show that

he was qualified for a position at Budco. Further, Wilson suffered an adverse employment

action. “An adverse employment action is an action by the employer that ‘constitutes a

significant change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a significant

change in benefits.’” Lindsey v. Whirlpool Corp., 295 Fed. Appx. 758, 767 (6th Cir. 2008)

(quoting Burlington Industries v. Ellerth, 524 U.S. 742, 761 (1998)). Wilson’s transfer back

to DCXOM, which ultimately led to his being laid-off, and the fact that Budco failed to hire

him in the bindery department are adverse employment actions.

33

2005) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994))

(emphasis in McMillan). The plaintiff has the burden of demonstrating “that all of the

relevant aspects of his employment are nearly identical to those of the [non-protected]

employees who he alleges were treated more favorably.” Pierce, 40 F.3d at 802.

Summary judgment is inappropriate if a rational fact-finder could conclude, upon construing

the evidence in the light most favorable to the non-moving party, that the two employees

were similarly situated. Benjamin v. Schuller, 400 F.Supp. 2d 1055, 1079 (S.D. Ohio 2005)

(citing Ergovich v. Goodyear Tire & Rubber., 154 F.3d 344, 349 (6th Cir. 1998)). 

Defendants assert that Wilson is unable to make out a prima facie case of

discrimination because he has not demonstrated that he was treated differently than a

similarly situated employee.12 Defendants argue that Page is the only white employee that

Wilson has identified as receiving more favorable treatment, and that Wilson and Page

were not similarly situated employees based on differences in their educations and

qualifications for a job in letter shop / bindery, and differences in the times they worked at

Budco. These arguments are discussed in detail below.

The Court finds that based on the evidence available in this case, a rational fact

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13 Defendants argue that numbers showing that Wilson had a higher production

output than Page are inaccurate and irrelevant. The Court must accept the facts as Wilson

has presented them for the purposes of summary judgment. Further, whether the output

properly establishes that Wilson was a superior producer is a question of fact, which must

be determined by a jury.

34

finder could find that Page and Wilson were similarly situated. First, the Court considers

Page’s additional education to be irrelevant to the issues in dispute. Page and Wilson were

both employed as Level-3 Machine Operators during their tenures at Budco, and the job

description for a Level-3 Machine Operator states under education: “as required to perform

essential functions of the job.” Job Description at 2 (Docket no. 14, ex. E). 

Further, although Budco asserts that Wilson struggled with machine operation and

that Page was more qualified for the job based on his ability to work with machines, a

reasonable factfinder could find, based on the evidence, that they were similarly situated

with respect to their qualifications. Both performed the job of a level-3 machine operator

in DCXOM. The job evaluations generally showed that Wilson met or exceeded

expectations during this time. Wilson asserts that he was a superior producer during that

time.13 

The Court is not persuaded by Defendants’ argument that the job in bindery was

different than the job in DCXOM because it did not require Wilson to supervise other

employees, but only required him to work with machines, which Page was better at.

Although job evaluations do indicate that Page worked well with the machinery and that

Wilson needed to improve in this area, a factfinder could still find that they were similarly

situated. Wilson was deemed to meet expectations on his job evaluations in DCXOM

despite his noted need for improvement with machine operation, and Wilson asserts that

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he did not have problems with the machines. In fact, Wilson asserts, during the two days

he and Page worked on Raymond’s shift in bindery in early 2007, Wilson produced six

times the number of units per night that Page did. Further, Wilson, relying on his own

deposition testimony and Adams’s affidavit, also asserts that Page’s superior mechanical

skills are irrelevant because neither Page nor Wilson were responsible for fixing the

machines. The arguments all support a finding that the jobs were not different.

Defendants next assert that based on the time-line of events, Page and Wilson could

not have been similarly situated because Page was not working at Budco during the

relevant time period when Wilson was working in the bindery department, before being

transferred back to DCXOM. Therefore, Defendants argue that they were not both under

the supervision of Raymond, and that evidence suggesting that Wilson was a better

producer than Page in DCXOM is irrelevant because it occurred prior to the relevant time

period.

The Court is unpersuaded by Defendants’ argument regarding the time-line of

events. First, Wilson and Page did perform the same job, at the same time, in the DCXOM

department until Page quit and went to work for another company. Although Defendant’s

argue that any activity from that time period is irrelevant because the relevant time period

of events in this case is from October 2007 through February 2008, when Wilson worked

in the bindery department, the Court finds that evidence from when Page and Wilson

worked in the DCXOM department is relevant in determining whether Page and Wilson

were similarly situated with regards to their qualifications. Further, while it is true that Page

did not return to Budco until after Wilson had transferred back to DCXOM, Page came back

within the very same week that Wilson transferred, and remained there until Wilson was

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14 Defendants admit that Wilson and Page were being paid different amounts

at the time Wilson was laid off but attribute the difference in pay to a difference in positions.

Wilson was a level-three machine operator and Page was a level-three supervisor. But,

Foether admits that Page was hired in as a level-three machine operator, Foether Dep. Tr.

at 26 (docket no. 14, ex. B), and Wilson asserts that he and Page had the same job when

Wilson was laid off. 

36

laid off, despite Wilson having applied for the same job that Page was given in the letter

shop / bindery department. Wilson’s theory is that Page was given the job over Wilson, who

was transferred back to the closing DCXOM department. There is also a material issue of

fact as to whether Page and Wilson were being paid different amounts for performing the

same job at the time that Wilson was laid off.14 

Therefore, the Court finds that there is a material issue of fact as to whether Wilson

and Page were similarly situated employees, and that Wilson has made out a prima facie

case of discrimination. Because Wilson made out a prima facie case, Defendants have the

burden of articulating a legitimate, non-discriminatory reason for their actions. 

Defendants assert that Wilson was transferred back to DCXOM because he was

struggling with the machines in bindery, because production in the DCXOM department had

decreased, and because the supervision in the DCXOM department was lacking. Further,

Defendants assert that Wilson was laid-off because of the loss of business at Chrysler, and

that Page was hired into the bindery department, instead of Wilson, because Page had

superior mechanical skills. Defendants have produced evidence to support their proffered

reasons. Poor work-performance and layoffs due to loss of business requiring layoffs are

legitimate, non-discriminatory reasons for an adverse employment action, and therefore,

Defendants have met their burden. 

Given that Defendants have asserted a legitimate non-discriminatory reason, Wilson

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assumes the burden of demonstrating that the reasons given were pretext. To meet this

burden, the plaintiff “need only produce enough evidence to support a prima facie case and

to rebut, but not to disprove, the defendant’s proffered rationale.” Blair v. Henry Filters Inc.,

505 F.3d 517, 532 (6th Cir. 2007), overruled on other grounds by Gross v. FBL Fin. Serus,

Inc., 129 S. Ct. 2343, 2351 n.4 (2009); see also Chen v. Dow Chemical Co., 580 F.3d 394,

400 n.4 (6th Cir. 2009) (“At the summary judgment stage, the issue is whether the plaintiff

has produced evidence from which a jury could reasonably doubt the employer’s

explanation.”). 

Pretext may be shown by demonstrating that an employer’s stated reason for an

adverse employment action either “(1) has no basis in fact, (2) was not the actual reason,

or (3) is insufficient to explain the employer’s action.” Bartlett v. Gates, No. 09-3823, 2010

U.S. App. LEXIS 23559, *21 (6th Cir. Nov. 15, 2010) (citing White, 533 F.3d at 393).

Pretext may not be shown merely by demonstrating that the employer’s proffered reason

was untrue, rather, the plaintiff must show “both, that the reason was false, and that

discrimination was the real reason.” Thomas v. Hoyt, Brumm, & Link, Inc., 910 F.Supp.

1280, 1288 (E.D. Mich. 1994) (emphasis in original). But, the “factfinder’s disbelief of the

reasons put forward by the defendant, may, together with the elements of the prima facie

case, suffice to show intentional discrimination.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 510 (1993). Finally, the soundness of an employer’s business judgment may not be

questioned as a means of showing pretext. Chappell v. GTE Prods. Corp., 803 F.2d 261,

266 (6th Cir. 1986).

Wilson attempts to show pretext with evidence that he was a superior producer than

Page, through further evidence that supervision in DCXOM was not lacking, and through

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evidence of racial animus at Budco. Defendants assert that Wilson has not met his burden

because he offers merely his own unsupported, conclusory beliefs regarding Defendants’

intent, which are insufficient to defeat summary judgment. See Brennan v. Tractor Supply

Co., 237 Fed. Appx. 9, 19-20 (6th Cir. 2007) (“[M]ere conjecture that [the] employer’s

explanation is a pretext for intentional discrimination is an insufficient basis for denial of

summary judgment.”). While Defendants are correct that mere conjecture is not enough

to survive a motion for summary judgment, the Court finds Wilson’s evidence is not mere

conjecture, and that Wilson has met his burden of rebutting Defendants’ proffered motives.

First, as discussed above, there is a material issue of fact as to whether Page was

more qualified to work in the bindery department based on his mechanical skills, and

whether Wilson was performing poorly in the bindery department, particularly given

Wilson’s assertion that he was informed that he would be returning to bindery / letter shop

once DCXOM closed. This issue draws into question the factual basis for Budco’s offered

reasons for transferring Wilson back to a closing department and hiring Page into letter

shop / bindery. Further, Hampton’s affidavit presents evidence rebutting Budco’s assertion

that Wilson was transferred back to DCXOM because there was poor supervision in the

DCXOM department because she had allowed employees to take longer lunch breaks than

were mandated by company policy. Hampton asserts that she received an email in

December 2007 regarding lunch breaks and her supervision of DCXOM, and that,

immediately after receiving the email, she became compliant with company policies.

Hampton Aff. ¶¶ 17-18. Thus, Hampton asserts, she was never written up and that all

employees in DCXOM were already conforming with company policy by the time that

Wilson was transferred back to DCXOM in 2008. Id. ¶¶ 19-20. 

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In addition to showing a material issue of fact as to whether Budco’s proffered

reasons were false, Wilson has set forth evidence of racial animus at Budco. Defendants

argue that Wilson’s unsupported allegations that white employees were favored over black

employees is insufficient to establish pretext, and cites Thomas v. Hoyt, Brumm, & Link,

Inc., 910 F. Supp. 1280, 1288 (E.D. Mich. 1994), to support their argument. The present

case is distinguishable from Thomas, however, because the Thomas court found that the

plaintiff presented no evidence to show that his race played a part in the employer’s

decision. In this present case, Wilson has presented evidence which tends to demonstrate

that race played a significant part in Defendants’ decision. Hampton testified that she often

observed Raymond refer to two African-American women, Peeples and Gray, as “stupid

bitches.” Hampton Aff. ¶ 16. Adams similarly asserts that he too heard Raymond refer to

Peeples and Gray as “stupid bitches,” and that he often heard Raymond speak to AfricanAmerican employees, especially women, in a demeaning fashion by referring to them as

“lazy bitches.” Adams Aff. ¶ 7, 8. Adams also testified that he observed Raymond

speaking in a derogatory and demeaning manner to African Americans, using abusive

language, and calling African-American employees names. Id. ¶¶ 13-15. 

Adams, who is white, further asserts that Raymond never spoke to him, or other

white employees, in that fashion. Id. ¶¶ 11. Levingston also asserted that he was written

up for errors made by Page during production. Id. ¶ 12. Deposition testimony and

affidavits from Wilson himself also describe alleged discrepancies in hiring practices for

white and black employees, the demeaning manner in which Wilson and others were

treated, and Raymond’s allegedly threatening statements toward Wilson. Finally,

Defendants admit that all the employees laid off when the DCXOM department closed were

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15 The Court notes that it has reviewed Spraggins v. Lakepointe Senior Care

and Rehab Center, LLC, No. 08-10474, 2010 U.S. Dist. LEXIS 105417 (E.D. Mich. Oct. 4,

2010), which was discussed by Defendants at the hearing on the motion and was

subsequently mailed to the Court and to Wilson. The Court finds that in Spraggins,

summary judgment was granted on racial discrimination claims under Title VII for various

reasons that are not applicable here. First, one plaintiff in Spraggins failed to demonstrate

that she was qualified for the job, and, alternatively she gave inconsistent answers

regarding her termination, – leading to her being barred from contesting the employer’s

legitimate, non-discriminatory reasons. Another plaintiff could not show that she suffered

an adverse employment action. A third plaintiff admitted to one of the employer’s proffered

reasons for the adverse employment action, and failed to set forth any evidence to

demonstrate that the decision to terminate her was not based on legitimate reasons.

Finally, the last defendant was possibly not the subject of an adverse employment action

because she “self-terminated” and she failed to demonstrate that the proffered reason was

pretext. Spraggins, 2010 LEXIS 105417 at *13-*18. Moreover, while the Court agrees with

the holding in Spraggins that the term “you people” is not, on its face, race-based, the Court

further finds that there was sufficient evidence beyond the use of “you people” by Raymond

here to support the Court’s findings in the present case. 

16 The Court concluded earlier that Raymond cannot be liable under Title VII,

and, therefore, summary judgment is granted as to the Title VII claim against him. 

40

black. Taken together, this testimony provides enough evidence for a reasonable jury to

conclude that there was racial animus at Budco, and that is was the sole cause of Wilson’s

layoff.

The Court concludes that a jury could find that Defendants discriminated against

Wilson because of his race, and, therefore, summary judgment is inappropriate as to

Wilson’s claims for racial discrimination pursuant to Title VII15, the ELCRA, and § 1981.16

3. Wrongful Discharge, Retaliation, and Hostile Work Environment 

Wilson’s response brief failed to address Defendants’ claims that the Court should

grant summary judgment as to his hostile work environment, retaliation, and wrongful

discharge claims. Wilson’s wrongful discharge claim is premised on a theory of breach of

contract. During the hearing conducted on the motion, Wilson’s counsel conceded that the

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17 The hearing was held on November 30, 2010. On December 13, 2010,

counsel sent to the Court, and copied to Defendants’ attorney, a letter laying out several

issues that arose at the hearing that were not fully briefed by Wilson’s former counsel in

their response to Defendants’ Motion for Summary Judgment. Counsel’s letter was not

timely, and, as mentioned, the Court does not find that additional briefing would be

beneficial here.

41

breach of contract claim was not viable. The Court, therefore, grants summary judgment

for Defendants on Wilson’s wrongful discharge claim.

As for the retaliation and hostile work environment claims, Wilson’s counsel asked

the Court to grant additional time to further brief these claims. The Court does not find that

additional briefing would benefit the Court, as these claims are meritless.17 To establish

retaliation, Wilson must show that he engaged in a protected activity, which caused the

employer to take an adverse employment action. To do so, he must have made it clear

that he was complaining of race discrimination when he lodged complaints against

Raymond to Budco managers. Speck v. City of Memphis, 370 Fed. Appx. 622, 626 (6th

Cir. 2010) (stating that to make out a claim for retaliation under the ADEA, plaintiff “must

have referenced alleged acts of age discrimination . . . . [plaintiff] produced no evidence

that she ever mentioned age discrimination in any of her complaints before resigning.”);

Balding-Margolis v. Cleveland Arcade, 352 Fed. Appx. 35, 45 (6th Cir. 2009) (plaintiff did

not state a Title VII retaliation action because “a vague charge of discrimination in an

internal letter . . . is insufficient to constitute opposition to an unlawful employment practice”

and plaintiff never spoke with management about sexual or age-based discrimination). It

appears from his testimony that when Wilson made complaints to managers at Budco,

however, he merely alleged that Raymond treated him disrespectfully; he never mentioned

race. Thus, the Court must grant summary judgment as to the retaliation claim.

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Further, Wilson’s hostile work environment claim fails because Wilson has not

produced evidence to demonstrate that there was “repeated conduct [and that] the

workplace [was] permeated with discriminatory intimidation, ridicule, and insult that is

sufficiently severe and pervasive to alter the conditions of the victim’s employment and

create an abusive working environment.” Hunger v. Sec’y of U.S. Army, 565 F.3d 986, 994

(6th Cir. 2009) (internal citations omitted). Though the Court finds that evidence of racial

animus exists, there is not sufficient evidence that it was severe and pervasive enough to

alter the conditions of Wilson’s employment, particularly given the fact that Wilson did not

quit and even attempted to reapply for a position at Budco.

CONCLUSION

Based on the foregoing analysis the Court will strike paragraphs 5, 7, 8, 16, and 19

and portions of paragraphs 15 and 30 of Wilson’s first affidavit; paragraphs 11, 29, 31, 39,

and 41 of his second affidavit; paragraph 14 of Hampton’s affidavit; paragraphs 9, 10, and

12 and portions of paragraphs 13, 14, and 15 of Adams’s affidavit; and paragraphs 14 and

15 of Levingston’s affidavit.

Moreover, the Court grants summary judgment in favor of Raymond as to the Title

VII discrimination claim, and grants summary judgment in favor of all Defendants on the

retaliation, hostile work environment, and wrongful discharge claim. The Court denies

summary judgment with respect to the Title VII discrimination claim against Budco, and to

the § 1981 and ELCRA claims against all Defendants. 

ORDER

WHEREFORE, it is hereby ORDERED that paragraphs 5, 7, 8, 16, and 19 and

portions of paragraphs 15 and 30 of Wilson’s first affidavit; paragraphs 11, 29, 31, 39, and

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41 of his second affidavit; paragraph 14 of Hampton’s affidavit; paragraphs 9, 10, and 12

and portions of paragraphs 13, 14, and 15 of Adams’s affidavit; and paragraphs 14 and 15

of Levingston’s affidavit are struck.

IT IS FURTHER ORDERED that summary judgment be GRANTED in favor of

Raymond as to Wilson’s Title VII discrimination claim, and in favor of all Defendants as to

Wilson’s claims for wrongful discharge, retaliation, and hostile work environment.

IT IS FURTHER ORDERED that summary judgment be DENIED as to Wilson’s Title

VII discrimination claim against Budco, and as to Wilson’s § 1981 and ELCRA claims

against all defendants.

SO ORDERED. 

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: January 6, 2011

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on January 6, 2011, by electronic and/or ordinary mail.

Alissa Greer 

Case Manager

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