Upshaw v. Ford Motor Co.

• Citation: 576 F.3d 576
• Decision Date: 14 August 2009
• Docket Number: No. 08-3246.,08-3246.
• Parties: Carolyn UPSHAW, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

576 F.3d 576

Carolyn UPSHAW, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.

No. 08-3246.

United States Court of Appeals, Sixth Circuit.

Argued: April 22, 2009.

Decided and Filed: August 14, 2009.

ARGUED: Matthew Colangelo, NAACP Legal Defense & Educational Fund, Inc., New York, NY, for Appellant. David A. Whitcomb, Baker & Ho Stetler LLP, Columbus, OH, for Appellee. ON BRIEF: Matthew Colangelo, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Kenneth G. Hawley, Cincinnati, OH, for Appellant. David A. Whitcomb, Baker & Hostetler LLP, Columbus, OH, for Appellee.

Before: BATCHELDER, COLE, and SUTTON, Circuit Judges.

COLE, J., delivered the opinion of the court, in which SUTTON, J., joined. BATCHELDER, J. (pp. 593-95), delivered a separate opinion concurring in part and dissenting in part.

OPINION

COLE, Circuit Judge.

In this civil rights action arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981, and Ohio Revised Code § 4112.02, Plaintiff-Appellant Carolyn Upshaw ("Upshaw") appeals the district court's grant of summary judgment to Defendant-Appellee Ford Motor Company ("Ford") and the denial of her motion for relief from judgment. Upshaw argues that Ford failed to promote her on the basis of her race and sex, and retaliated against her when she complained of discrimination. For the following reasons, we AFFIRM in part and REVERSE in part.

I. BACKGROUND

A. Factual background

1. Upshaw's employment at Ford

Carolyn Upshaw, an African-American woman, worked for Ford as a Salary Grade 6 Production Supervisor from April 2000 through her March 2005 termination. Upshaw began her career at Ford in the company's Wayne, Michigan truck plant, but, in 2001, she sought and obtained a transfer to Ford's Sharonville, Michigan transmission plant, where she worked until she was terminated.

At the time that Upshaw transferred to the Sharonville plant, Robert E. Brooks, an African-American male, had recently been promoted to the position of supervisor for salaried personnel, a position within the Department of Human Resources. Brooks's duties included overseeing the "in-series" promotions process, which involves promotion to a higher salary grade within the same job. After Brooks raised the plant's performance standards in 2001, an employee had to have both worked in his current salary grade for at least twenty-four months and received an annual performance rating of "Excellent Plus" or higher to be eligible for an in-series promotion. Ford's performance rating system included seven different levels, ranging from "Outstanding" to "Unsatisfactory." "Excellent Plus" was the level just below "Outstanding," followed by "Excellent" and "Satisfactory Plus." Upshaw received the following performance ratings, with each assessment corresponding to her performance during the previous calendar year: (1) January 2002, "Satisfactory Plus"; (2) January 2003, "Excellent"; (3) January 2004, "Excellent"; and (4) January 2005, "Excellent." Over the course of her employment, Upshaw was repeatedly denied an in-series promotion to Salary Grade 7 production supervisor.

2. Upshaw's pre-termination Equal Employment Opportunity Commission ("EEOC") charges and lawsuit

a. August 13, 2003 charge

On August 13, 2003, Upshaw filed a charge with the EEOC contending that Ford had repeatedly refused to promote her on the basis of her race and sex. She alleged that she was the only Salary Grade 6 production supervisor in her work zone and that Ford had improperly promoted similarly-situated white male production supervisors to Salary Grade 7 while continually denying her the same promotion.

On August 26, 2003, Brooks submitted Ford's response to the EEOC, denying that Ford had discriminated against Upshaw and explaining that nine of the ten employees promoted to Salary Grade 7 between January 1, 2000 and July 1, 2003 had been rated "Excellent Plus," and that the remaining employee had been rated "Excellent." Because Upshaw had been rated "Excellent" rather than "Excellent Plus" on her 2003 performance review, Ford stated that she had not been qualified for an in-series promotion. Ford's response included a chart depicting the Sharonville plant's promotion activity from 2000 through 2003. The EEOC dismissed Upshaw's charge.

During discovery in this action, Brooks admitted that Ford's response to the EEOC was inaccurate because he had used the wrong year's performance reviews in preparing the chart. Although the chart showed all but one of the employees who received an in-series promotion in 2002 as having a rating of "Excellent Plus," in fact, in 2002, two white males, Steven Fletcher and Stephen Green, were promoted from Salary Grade 6 to Salary Grade 7 with ratings of "Excellent." Also, in August 2002, an African-American male, Charles Alexander, was promoted from Salary Grade 6 to Salary Grade 7 with less than an "Excellent Plus" rating.¹ Ford's chart also misstated Upshaw's 2002 rating as "Excellent" when she had actually been rated "Satisfactory Plus."

At his deposition, Brooks attributed the inaccuracies on the chart to his failure to verify the data compiled by an associate in his department. Brooks testified that he only learned of the mistake after drafting his response to the EEOC, at which point, he realized that Fletcher, Green, and Alexander should not have been promoted. Brooks never notified the EEOC of the error.

b. January 28, 2004 charge

On January 28, 2004, Upshaw filed a second EEOC charge, alleging that in retaliation for her August 2003 EEOC charge, her supervisor, Robert "Doug" Baur, held a meeting with the hourly employees under her supervision without her knowledge. Ford denied Upshaw's claims and argued that only two Sharonville managers (neither of them Baur) were even aware of Upshaw's August 2003 EEOC filing. Ford also contended that Upshaw's complaint of differential treatment was too vague to allow Ford to respond in any detail. The EEOC dismissed Upshaw's complaint and issued her a right-to-sue letter, but she did not file a lawsuit within the allotted time.

During discovery in the instant action, Ford produced internal emails to Baur and others that pre-dated Ford's response to the EEOC, mentioning Upshaw's 2003 EEOC charges, which Upshaw asserts establishes the intentional falsity of Ford's EEOC response. Moreover, Baur testified that he heard about Upshaw's 2003 EEOC charges before Ford drafted its response, but he could not remember the source of the information.

c. June 15, 2004 charge

On June 15, 2004, Upshaw filed a third EEOC charge, alleging that on June 3, 2004, she was reprimanded for failing to wear a safety vest in a designated area in retaliation for her previous EEOC complaints. Ford filed a response with the EEOC listing seven salaried employees (four of whom were Caucasian) who were disciplined for a "violation of Corporate Safety Rules," the same charge brought against Upshaw. Although the EEOC dismissed Upshaw's claim, she asserts that Ford's response misrepresented the facts because she learned during discovery that several of the safety violations attributable to the other employees were more serious infractions, and that she was the only salaried personnel at the Sharonville plant to have been disciplined for failing to wear a safety vest.

d. November 4, 2004 lawsuit

On November 4, 2004, Upshaw filed a complaint in the United States District Court for the Southern District of Ohio, alleging that Ford discriminated against her on the basis of her race and sex by failing to promote her to Salary Grade 7 and by subjecting her to heightened scrutiny.

3. Ford's documentation of Upshaw's complaints

a. Compilation of timeline following Upshaw's August 2003 EEOC charge

After transferring to the Sharonville plant in 2001, Upshaw filed numerous complaints with the Department of Human Resources regarding various disputes she had with hourly employees, salaried employees, and the union. These complaints were handled by Human Resources employees Brandee Hughes-Sharp and Nikolas Johnson, and consumed a significant amount of their time. Despite her many interpersonal issues with other employees, including her supervisors, Upshaw's 2001 through 2005 annual performance reviews were generally positive.

Five days after Upshaw filed her August 2003 EEOC charge, Gerald Taylor, the Human Resources personnel manager for four Ford plants, wrote the following note documenting a conversation he had with Robert Brooks and James L. Brooks, another Human Resources employee:

Discussed with J[ames] Brooks and Robert Brooks the possibility of looking into the complaint activity of Carolyn Upshaw since it seems almost daily people are investigating her complaints. The # of complaints, time invested & outcome of these investigations. [sic] That if the data reveal excessive activity w/ little or no results, then write it up for termination and I will evaluate if it warrants said release.

(Joint Appendix ("JA") 779-80) (emphasis added). In his deposition, Taylor testified that the term "complaint activity" referred to Upshaw's internal complaints—"the daily traffic, the charges, the investigations, and the results of those"—not her recent EEOC charge. (JA 539-40.) In October 2003, James Brooks began working with Hughes-Sharp to compile a "timeline" of Upshaw's employment for Taylor's review.

b. Request for discipline following Upshaw's lawsuit

On December 7, 2004, approximately one month after Upshaw filed her lawsuit, Hughes-Sharp emailed Taylor to arrange a conference call to discuss the timeline that James Brooks and Hughes-Sharp were preparing. On or about December 14, 2004, James Brooks emailed Taylor a draft request for disciplinary action against Upshaw. At deposition, Brooks explained that he sought Taylor's permission to terminate Upshaw "on the basis that the numerous complaints and problems that she created for...