NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0277n.06
No. 18-3360
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 28, 2019 ALASHAE CRAWFORD, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE CHIPOTLE MEXICAN GRILL, INC., ) SOUTHERN DISTRICT OF ) OHIO Defendant-Appellee. ) ) )
Before: CLAY, COOK, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. Alashae Crawford was fired from a supervisor position at a
Chipotle Mexican Grill in southwestern Ohio. She then filed this lawsuit, alleging that Chipotle
had violated federal and Ohio law by terminating her because of her race and because she had
accused her manager of race discrimination. See 42 U.S.C. §§ 2000e-2, 2000e-3(a); Ohio Rev.
Code § 4112.02(A) & (I). After discovery, the district court granted summary judgment for
Chipotle. We AFFIRM in part and REVERSE in part.
I.
The facts of this case, in the light most favorable to Crawford,1 are as follows: In February
2012, Chipotle hired Crawford, who is African American, as a crew member at one of its
1 We view the facts and draw any inferences in the light most favorable to the party against whom summary judgment was entered. Franklin Am. Mortg. Co. v. Univ. Nat’l Bank of Lawrence, 910 F.3d 270, 275 (6th Cir. 2018). We “review the record as a whole” and “must disregard all evidence No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
southwestern Ohio restaurants. Shortly after, Jeysie Torres, who is Hispanic, became the
restaurant’s general manager. Although Crawford’s performance evaluations reflected room for
improvement, Torres took interest in her career and encouraged her to work toward a promotion.
Just over a year after Crawford’s hiring, Torres promoted her to the lowest supervisor position.
Torres eventually moved to another Chipotle restaurant to help improve its performance; Crawford
followed at Torres’ request. Torres again quickly promoted Crawford.
Torres and Crawford had occasional disagreements at the new restaurant. Crawford
confronted Torres several times about his perceived favoritism toward Hispanic employees; Torres
would reply that Crawford was only sticking up for African-American crew members because she
is black. Despite these disagreements, however, Torres and Crawford had a good working
relationship.
In early 2014, Philip Shelton and several other African American crew members came to
Crawford with concerns about their timesheets, which had been altered to reduce their hours
worked. Crawford confronted Torres and the assistant manager Osbaldo Amaya, who is Hispanic,
about the time-shaving. The two admitted they had altered the timesheets, claiming they did so
under pressure to improve the restaurant’s performance. In February 2014, Shelton called
Chipotle’s “Respectful Workplace” hotline about the time-shaving. Crawford overheard Shelton
complaining during that call that Torres and Amaya “ha[d] been showing favoritism towards other
Hispanic workers that work the same position as me.” Chipotle’s regional supervisor, Melvin
Henriquez, investigated Shelton’s complaint. He concluded that Shelton often forgot to clock in
favorable to [Chipotle] that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 151 (2000). We present the facts in that same posture now and leave out, for present purposes, disputed evidence favoring Chipotle. -2- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
and out, and that the managers (including Crawford) had sometimes inadvertently shorted Shelton
later when correcting his timesheets.
In early March 2014, Henriquez assigned Sam Revis, an experienced manager, to advise
Torres on improving the restaurant’s performance. Revis determined that the restaurant was in
disarray; the employees did not follow food safety protocols, deliver acceptable customer service,
or maintain sufficient cleanliness. Revis advised Torres to make personnel changes to increase
productivity, but never specifically recommended that Torres terminate Crawford.
Meanwhile, “[i]n March of 2014, a short time before [Crawford’s] termination, . . . Shelton
showed [her] his paycheck,” which indicated that he had not received his promised back pay from
the time-shaving incident. Crawford “approached” Torres about the issue because she “believed
that . . . Torres was purposely interfering with . . . Shelton getting his back pay.” Crawford told
Torres “that he was discriminating against . . . Shelton, . . . that he needed to stop
harassing . . . Shelton,” and “that he needed to pay . . . Shelton for the hours that Mr. Amaya had
taken from . . . Shelton.” Torres replied that “the only reason [Crawford] was
defending . . . Shelton was because [she is] black.”
Although Torres had previously been supportive of Crawford’s career, their relationship
changed after this conversation. Torres held a meeting with Amaya and Crawford in which he told
the two that the “restaurant has basically bec[o]me a fun house, and we need to . . . stop being
friends with our crew members”—i.e., be tougher on the crew members. But when Crawford
implemented the directive, Torres told crew members that Crawford was “being an ass.” Despite
the newfound friction, Crawford was never formally disciplined for any alleged misconduct
leading up to her termination.
-3- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
Torres fired Crawford less than two weeks after she had confronted him about his alleged
discrimination toward Shelton. On March 17, 2014, Torres took Crawford aside to inform her that
he was firing her because the crew members did not like working with her. Torres was “very
vague about” purported complaints from the crew and would not tell Crawford who had
complained. Confused, Crawford asked why she hadn’t heard about any complaints before; Torres
replied that “it didn’t really become a problem until Friday,” even though nothing had happened
the previous Friday that could have been the basis for that statement. Torres got in his car and left
immediately after the conversation.
After filing a charge with the Equal Employment Opportunity Commission, Crawford
brought federal and state claims against Chipotle. She alleged that she was fired because she is
African American (discrimination), and because she had accused her manager of race
discrimination (retaliation). Chipotle successfully moved for summary judgment on both claims,
and Crawford timely appealed.
II.
Before considering whether summary judgment was proper, we first evaluate a crucial
evidentiary question. Crawford clearly alleged in her complaint that “[a] short time before March
17, 2014, Plaintiff complained to Torres that he was discriminating against Phillip Shelton.” In
fact, the only protected activity she alleged in the complaint was that March 2014 conversation.
Yet Chipotle’s attorneys never asked Crawford about that conversation while deposing her.
Crawford thus never testified in the deposition about the specific March 2014 conversation in
which, she claims, she grilled Torres about his discriminatory behavior.
Fast-forward to post-discovery motions: Chipotle moved for summary judgment on the
retaliation claim, asserting that Crawford had not testified about making any complaint that would
-4- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
be protected by Title VII. Of course, this was true—Chipotle never asked Crawford about the
conversation she had alleged in her complaint. So, in conjunction with her response to Chipotle’s
motion, Crawford submitted a declaration describing the March 2014 conversation. Chipotle
argued that the district court could not consider the declaration because of the “sham affidavit”
doctrine, which precludes attempts to “create a factual issue by filing an affidavit, after a motion
for summary judgment has been made, which contradicts . . . earlier deposition testimony.” Reid
v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). The district court agreed with Chipotle
and refused to consider the declaration. Since the declaration was essential to Crawford’s
retaliation claims, summary judgment for Chipotle inevitably followed.
We review the evidentiary ruling for abuse of discretion, Briggs v. Potter, 463 F.3d 507,
511 (6th Cir. 2006), and conclude that it was in error. The sham affidavit doctrine does not apply
to Crawford’s declaration because the declaration did not contradict her deposition testimony. It
merely addressed facts about which Crawford was not questioned during her deposition. At no
point in the deposition did Chipotle’s attorneys ask her, even indirectly, about the sole instance of
protected activity alleged in her complaint. We of course agree that “[a] party may not create a
factual issue by filing an affidavit, after a motion for summary judgment has been made, which
contradicts her earlier deposition testimony.” Reid, 790 F.2d at 460. But neither may a defendant
refrain from posing crucial questions during a deposition and then move for summary judgment
when the plaintiff, predictably, never answers the never-asked questions.
Chipotle points to a deposition question that, it contends, should have elicited testimony
about the March 2014 conversation. After an extended discussion about the time-shaving issue
Crawford described, Chipotle’s attorney asked Crawford, “[i]s there anything else about that issue
that you want to talk about?” Crawford answered, “No.” Chipotle says that this “answer alone
-5- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
should end the inquiry.” At no time, however, was Crawford “directly questioned” about the
March 2014 conversation that she had explicitly alleged in her complaint. Aerel, S.R.L. v. PCC
Airfoils, LLC, 448 F.3d 899, 907 (6th Cir. 2006). Nor was she ever asked generally whether she
had ever accused Torres of discrimination. Chipotle’s questions were simply not focused enough
for Chipotle to now invoke the sham affidavit doctrine. In fact, even in a case where a deponent
“was questioned generally” about a specific conversation, we allowed a later affidavit adding
additional information because “he was not expressly asked” what had been said in the
conversation, and so “was not under any obligation to volunteer everything . . . said.” Briggs, 463
F.3d at 513. Crawford was not even “questioned generally” about the March 2014 conversation.
We have no difficulty, therefore, concluding that the sham affidavit doctrine does not apply.
Because the district court “misapplie[d] the correct legal standard,” it abused its discretion.
Aerel, 448 F.3d at 906. The sham affidavit doctrine does not apply to Crawford’s declaration, and
we must consider the declaration in determining whether Chipotle is entitled to summary
judgment.
III.
We review summary judgment de novo, applying the same standards the district court used.
Franklin Am., 910 F.3d at 275. “In other words, summary judgment is warranted only if ‘there is
no genuine issue as to any material fact’ and ‘the movant is entitled to judgment as a matter of
law.’” Id. (quoting Fed. R. Civ. P. 56(a) and Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563,
568 (6th Cir. 2013)).
Federal and Ohio labor law prohibits retaliating against employees who oppose unlawful
employment practices. See 42 U.S.C. § 2000e-3(a); Ohio Rev. Code § 4112.02; Braun v. Ultimate
-6- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
Jetcharters, LLC, 828 F.3d 501, 510 (6th Cir. 2016).2 To establish a prima facie case of retaliation,
Crawford must show: (1) she engaged in protected activity (i.e., communicated opposition to
discriminatory employment practices); (2) Chipotle was aware of the protected activity; (3) after
Crawford engaged in protected activity, Chipotle took an adverse employment action against her;
and (4) the protected activity caused the adverse action. Yazdian v. ConMed Endoscopic Tech.,
Inc., 793 F.3d 634, 649 (6th Cir. 2015). “The burden of establishing a prima facie case in a
retaliation action is not onerous,” and is “easily met.” Nguyen v. City of Cleveland, 229 F.3d 559,
563 (6th Cir. 2000).
If Crawford establishes her prima facie case, the burden shifts to Chipotle to provide
evidence of a “legitimate, nondiscriminatory reason” for terminating Crawford. Wright v. Murray
Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006). Then Crawford must show that Chipotle’s
proffered reason is mere pretext for unlawful retaliation. Id. at 706–07. She can do so with
evidence that Chipotle’s reason had no basis in fact, did not actually motivate the decision, or was
insufficient to warrant the adverse action. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir.
2009).
A.
The first two prima facie elements are protected activity and the employer’s awareness
thereof—in other words, whether Crawford engaged in Title VII protected activity by telling
2 The same analysis applies to retaliation claims under both federal and Ohio state law. Baker v. Buschman Co., 713 N.E.2d 487, 491 (Ohio Ct. App. 1998) (“Federal law provides the applicable analysis for reviewing retaliation claims” brought under Ohio law.). -7- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
Torres that “he was discriminating against” Shelton and “needed to stop harassing” him, and
whether Torres understood her accusation as a Title VII protected complaint.
Here, an African-American woman approached her Hispanic manager and accused him of
“discriminating against” an African-American co-worker by failing to give him proper back pay.
A jury could appropriately consider the context—specifically, that Crawford had previously told
Torres about complaints that he favored Hispanic crew members. It is also highly relevant that
Torres responded to this charge in the same way he had responded to those previous complaints—
by saying that Crawford was only defending her African American subordinates because she was
black. A reasonable jury could conclude, given the context of this case, that Crawford engaged in
protected activity by protesting what she believed was a racially discriminatory refusal to give
Shelton his back pay. Thus, Crawford has satisfied the first element of her prima facie retaliation
case. The same evidence—the underlying context, the specific words that Crawford used to
register her complaint, and Torres’ response—leads us to conclude that a reasonable jury could
infer that Torres was aware that Crawford was protesting discriminatory employment practices.
See Yazdian, 793 F.3d at 647. 3
3 Although the employer’s awareness of the protected activity is formally a separate prima facie element, we often combine the analyses by using the employer’s understanding as evidence of whether a complaint was protected activity in the first place. See, e.g., Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 505 (6th Cir. 2014) (“When Montell reported the comments, [the HR representative] did not respond that such comments clearly did not constitute sexual harassment. Instead, [the HR representative] investigated to determine whether such comments were actually made.”); Yazdian, 793 F.3d at 647 (pointing to an employer’s subsequent investigation of racial discrimination, in response to the complaint, as evidence that the complaint was protected activity in the first place); Samuels, 591 F. App’x at 485 (concluding that a complaint was not protected conduct, in part because “[n]othing in the contents of Samuels’ statements, nor the events that transpired afterwards, suggests that Tomlin took issue with anything Samuels said in her statement”); Lockett v. Marsh USA, Inc., 354 F. App’x 984, 997 (6th Cir. 2009) (“[T]here is no evidence that either Goshen or Corsetti understood the report to be charging discrimination . . . .”). Intuitively, this makes sense; an accusation that is understood to be protected activity was probably protected activity. And vice versa. -8- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
We are not persuaded by Chipotle’s arguments to the contrary. Chipotle characterizes the
accusation as merely a “‘vague’ charge[] of discrimination or harassment” that did not amount to
protected activity. According to Chipotle, Crawford needed to simultaneously and explicitly link
the discrimination to a protected category. Chipotle says that it would have been sufficient if, for
example, Crawford had said that Torres was “discriminating against Shelton on the basis of race,”
but the mere charge that Torres was “discriminating against Shelton” was not enough. We
disagree. “To come within the protection of Title VII,” Crawford need only “establish that [s]he
challenged an employment practice that [s]he reasonably believed was unlawful.” Yazdian,
793 F.3d at 645. It is true that merely lobbing a “‘vague charge of discrimination’” at an employer
will not suffice. Id. at 645 (quoting Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304,
1313 (6th Cir. 1989)). At the same time, an accusation need not “be lodged with absolute
formality, clarity, or precision.” Stevens v. St. Elizabeth Med. Ctr., Inc., 533 F. App’x 624, 631
(6th Cir. 2013).
Here, when Crawford’s statement is properly taken in context and in the light most
favorable to her, Crawford’s claim survives summary judgment. We cannot say, as a matter of
law, that making an accusation of “discrimination” in these circumstances is insufficient just
because Crawford did not link the discrimination to the victim’s race in the same breath. In similar
fashion, we have said that a female accountant’s “threat to sue over the pay disparity” between
herself and a male coworker “was clear enough to qualify as protected activity,” even though she
“did not utter the magic words ‘sex discrimination.’” Mumm v. Charter Twp. of Superior, 727 F.
App’x 110, 113 (6th Cir. 2018). That was true because of the factual backdrop against which the
accountant stated her objection, and it is also true here.
-9- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
Conversely, we have said that charges of “discrimination” were too vague to be protected
activity when the accusation came out of left field or when the employee did not “specifically
allege[] . . . employment practices” that were discriminatory. Fox v. Eagle Distrib. Co., 510 F.3d
587, 591–92 (6th Cir. 2007); see also Land v. S. States Coop., Inc., 740 F. App’x 845, 850 (6th
Cir. 2018) (holding that written complaint was not protected activity because “the allegations of
discrimination contained in [the] lengthy letters were vague, at best,” and “[t]he record contains
no evidence that Land alleged specific discriminatory employment practices in his discussions
with decision-makers or his letters to Southern States”); Samuels v. Corr. Med. Servs., Inc., 591 F.
App’x 475, 485 (6th Cir. 2015) (holding that evidence was insufficient to show protected activity
where the written complaint specifically addressed past issues with coworkers and general
frustration, but “only vaguely assert[ed] that Samuels was being harassed, discriminated against
and [suffered] some retaliation” (quotation marks omitted)); Booker, 879 F.2d at 1313 (“An
employee may not invoke the protections of [Title VII] by making a vague charge of
discrimination.”).
Here, the accusation did not come out of left field—Crawford had previously approached
Torres with complaints of racial favoritism—and she specifically identified the failure to pay
Shelton’s back pay as the discriminatory practice. That Torres immediately responded to
Crawford’s claim of “discrimination” with a claim that she was instead (or also) guilty of race
discrimination (“the only reason she was defending . . . Shelton was because [she is black]”) also
adds context. The governing principle from our caselaw is not that magic words must be intoned
but that the language used be enough, in a specific factual context, to convey the accusation and
its basis. In this particular context, accusing Torres of “discriminating against” and “harassing”
Shelton is just enough to get past summary judgment.
-10- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
B.
Chipotle does not contest that termination is a “materially adverse” action in the retaliation
context. Cf. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 73 (2006). Thus, the only
remaining prima facie element is the fourth: a causal connection between the protected activity
and the adverse action. Crawford must have enough evidence for a jury to conclude that “but for”
her opposition, she would not have been terminated. Univ. of Tex. S.W. Med. Ctr. v. Nassar,
570 U.S. 338, 346–47 (2013); EEOC v. Ford Motor Co., 782 F.3d 753, 770 (6th Cir. 2015).
Crawford says that five portions of the record support a causation inference: (1) she “was
dismissed less than two weeks after she told Torres to stop discriminating against Shelton”;
(2) Torres’ behavior toward Crawford changed after the confrontation; (3) the alleged complaints
against Crawford, even if true, became an issue only after Crawford accused Torres of
discrimination; (4) Amaya was more favorably treated; and (5) Crawford never received a
purported disciplinary document4 on which Chipotle relied during the deposition, nor did she ever
participate in the discussion supposedly described in that document. This evidence, while lean, is
just enough.
Though Crawford asserts that the timing of her termination (less than two weeks after the
protected activity) raises an inference of causation, we have said that temporal proximity alone is
generally insufficient to survive summary judgment. See Vereecke v. Huron Valley Sch. Dist.,
4 During discovery, Chipotle produced a disciplinary record purporting to memorialize an oral warning that an unspecified manager had given to Crawford on March 12, 2014 (five days before her termination). The manager wrote that he told Crawford that her “job is not to run shifts and boss people around,” but rather “to creat[e] extraordin[ary] cultures,” and to “elevate our team each day.” According to the document, Crawford “agreed that her performance ha[d] not be[en] the best over the past few weeks and that she underst[ood] that . . . she w[ould] be remove[d] from the team” if she failed to improve. Crawford testified that she had never seen the disciplinary document before her deposition and had never had the conversation described therein. We must take Crawford’s version as true in reviewing summary judgment. -11- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
609 F.3d 392, 401 (6th Cir. 2010). Instead, the plaintiff usually must offer evidence beyond mere
temporal proximity. Here, Crawford’s additional evidence is just sufficient to supplement the
temporal proximity. For example, Torres supported Crawford’s career advancement until she
accused him of discrimination, after which he called her “an ass.” See Adamov v. U.S. Bank Nat’l
Ass’n, 681 F. App’x 473, 479 (6th Cir. 2017) (“[I]ncreased scrutiny of Adamov’s behavior by
those who were aware of Adamov’s complaints also supports an inference of retaliatory
conduct.”). Furthermore, Crawford’s testimony that she never received the disciplinary document
or participated in the conversation referenced therein is, if believed, also circumstantial evidence
of causation. A jury could reasonably infer that a purportedly false disciplinary document was
evidence of intent to hide impermissible motivations.
Drawing all inferences in Crawford’s favor, as we must, Chipotle is not entitled to
summary judgment on the causation element. Crawford has therefore made out all four elements
of her prima facie retaliation case.
C.
Crawford agrees that terminating a supervisor because her crew members did not want to
work with her would generally be “legitimate” and “nondiscriminatory.” Wright, 455 F.3d at 706.
So the burden moves back to Crawford to show that Chipotle’s proffered reason was merely an
effort to mask retaliation. Id. at 706–07. “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.” Montell, 757 F.3d at 508 (quoting Chen, 580 F.3d at 400 n.4). One way to do this
is to show that the stated reason was not actually true. Jackson v. VHS Detroit Receiving Hosp.,
Inc., 814 F.3d 769, 779 (6th Cir. 2016).
-12- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
Drawing all inferences in Crawford’s favor, she “has produced evidence from which a jury
could reasonably doubt the employer’s explanation.” Montell, 757 F.3d at 508 (quoting Chen, 580
F.3d at 400 n.4). Crawford testified that she would have been surprised if any crew members
disliked working with her. In fact, she reported that both Torres and another Chipotle manager
had pressured her to “toughen up more,” because she “was kind of a pushover” with the crew. But
despite being “kind of a pushover,” there is evidence that she was a good supervisor overall. She
had been promoted twice in two years and was expecting a third promotion, this time to a salaried
position. Although Crawford had initially struggled to win over the crew members, she made
successful efforts to improve those relationships. She even said that the crew members were her
“family,” and reported that “a majority of the crew felt more comfortable” coming to her with
complaints than to Torres or Amaya. And when she told crew members about her termination,
they asked, “well, who doesn’t like working with you?”
Additionally, when Torres terminated Crawford, he was “very vague about” his reason for
doing so, refused to give Crawford specific names of disgruntled employees, and drove away
immediately after firing her. Crawford asked him why she had not previously heard about the
crew’s dissatisfaction with her; Torres told her that it had not “really become a problem until
Friday,” without explaining why Friday would have been an inflection point. And Crawford
testified that nothing had happened on Friday that would justify such a statement. Cf. Yazdian,
793 F.3d at 653 (“A jury could reasonably conclude that Yazdian’s behavior was not so bad as to
warrant termination . . . and his behavior became a problem only after Yazdian complained that
Sweatt was creating a hostile work environment.”). Furthermore, Crawford’s testimony that she
never received the disciplinary document or participated in the conversation referenced therein is,
if believed, also circumstantial evidence that she did not actually have issues working with her
-13- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
subordinates. A jury could reasonably infer that a purportedly false disciplinary document was
evidence of intent to justify the termination after the fact. All of this evidence casts doubt on
whether Torres was being forthcoming with his real reasons for terminating Crawford.
Thus, drawing all reasonable inferences in Crawford’s favor, and “disregard[ing] all
evidence favorable to [Chipotle] that the jury is not required to believe,” Reeves, 530 U.S. at 151,
Crawford has presented enough evidence for a jury to infer that Chipotle’s stated reason for the
termination had no basis in fact. The district court, therefore, erred in keeping Crawford’s
retaliation claims from the jury.
IV.
Turning to Crawford’s discrimination claims, however, we agree with the district court that
Chipotle is entitled to summary judgment. To get past summary judgment, Crawford must make
a prima facie showing that she (1) was a member of a protected class, (2) was subjected to an
adverse employment action, (3) was qualified for her position, and (4) was replaced by a person
outside the protected class or was treated less favorably than a similarly situated person who was
not a member of the protected class. Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 303 (6th
Cir. 2016).5 The dispute here centers on the fourth element—whether Crawford has identified a
similarly-situated person who was treated more favorably than she was.
“[T]he plaintiff and the employee with whom the plaintiff seeks to compare herself must
be similar in ‘all relevant aspects,’” including their alleged misconduct. Ondricko v. MGM Grand
Detroit, LLC, 689 F.3d 642, 654 (6th Cir. 2012). Crawford asserts that Amaya, the Hispanic
assistant manager, was similarly situated but treated more favorably despite his wrongdoing.
5 As with the retaliation claims, Ohio discrimination law follows federal law, and so the federal discrimination analysis applies equally to Crawford’s state claims. See Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 421 N.E.2d 128, 131–32 (Ohio 1981). -14- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
According to Crawford, Amaya “admitted to altering [Shelton’s] time records,” but Torres never
disciplined him. Chipotle concedes that Amaya’s job responsibilities could be considered
comparable to Crawford’s but denies that Amaya’s alleged misconduct was similar to Crawford’s.
Crawford concedes that she and Amaya did not engage in “identical conduct,” but maintains
nevertheless that “jurors could find Amaya’s purposeful falsification of Shelton’s time record” to
be as or more serious than Crawford’s allegedly poor relationship with her crew.
Amaya is not, however, an appropriate comparator. Where employees “engaged in
different conduct, and the differences in their conduct are relevant,” they are not similarly situated
for employment discrimination purposes. Wright, 455 F.3d at 710. Our caselaw demands a closer
resemblance to satisfy the ‘similarly situated’ requirement than Crawford has shown here. For
example, we have said that using profanity and making verbal threats, although related at first
glance, do not constitute similar misconduct for discrimination purposes. Collins v. Memphis
Goodwill Indus., Inc., 489 F. App’x 901, 909 (6th Cir. 2012). Likewise, there is too much daylight
between “workplace horseplay” and premeditated assault to constitute similar misconduct. Gray
v. Toshiba Am. Consumer Prods., 263 F.3d 595, 601 (6th Cir. 2001); see also Balding-Margolis
v. Cleveland Arcade, 352 F. App’x 35, 41 (6th Cir. 2009) (holding that misappropriation of funds
and improperly maintaining liquor bottles at a restaurant bar were not sufficiently similar); EEOC
v. PVNF, LLC, 487 F.3d 790, 801 (10th Cir. 2007) (holding that two employees were not similarly
situated because, although they were both often late to work, one employee’s tardiness affected
her productivity and the other employee’s did not). True, the plaintiff’s and comparator’s actions
need not be identical, see Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1998) (stating that there need not be an “exact correlation”), but the “conduct must be similar in
kind and severity,” Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012).
-15- No. 18-3360, Crawford v. Chipotle Mexican Grill, Inc.
As a matter of law, Crawford’s alleged misconduct is not “similar in kind and severity” to
Amaya’s. Altering timesheets is fundamentally different from generating workplace conflicts. Cf.
Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995) (holding that
an employee who had poor legal writing abilities was not similarly situated to the plaintiff, who
was terminated because she had “difficulty getting along with others”). A reasonable jury could
not find that Amaya’s actions were “substantially similar” to Crawford’s in “all relevant aspects.”
White v. Duke Energy-Ky., Inc., 603 F. App’x 442, 448–50 (6th Cir. 2015). And because Crawford
has failed to make out a prima facie case of race discrimination, summary judgment for Chipotle
was proper.
***
For the foregoing reasons, we AFFIRM summary judgment on the discrimination claims,
REVERSE on the retaliation claims, and REMAND the retaliation claims for trial.
-16-