Shazor v. Prof'l Transit Mgmt., LTD

• Decision Date: 19 February 2014
• Docket Number: No. 13–3253.,13–3253.
• Citation: 744 F.3d 948
• Parties: Marilyn SHAZOR, Plaintiff–Appellant, v. PROFESSIONAL TRANSIT MANAGEMENT, LTD, and Thomas P. Hock, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

744 F.3d 948

Marilyn SHAZOR, Plaintiff–Appellant,

v.PROFESSIONAL TRANSIT MANAGEMENT, LTD, and Thomas P. Hock, Defendants–Appellees.

No. 13–3253.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 4, 2013.

Decided and Filed: Feb. 19, 2014.

ARGUED:Laura Welles Wilson, Blank Rome LLP, Cincinnati, Ohio, for Appellant. Susan R. Bell, Cors & Bassett LLC, Cincinnati, Ohio, for Appellees. ON BRIEF:Laura Welles Wilson, Nathaniel R. Jones, Michael L. Cioffi, Lori G. Nuckolls, Blank Rome LLP, Cincinnati, Ohio, for Appellant. Susan R. Bell, Robert J. Hollingsworth, Alexis L. McDaniel, Cors & Bassett LLC, Cincinnati, Ohio, for Appellees.

Before: COLE and CLAY, Circuit Judges; BERTELSMAN, District Judge. ^*

OPINION

CLAY, Circuit Judge.

Plaintiff Marilyn Shazor appeals from the district court's grant of summary judgment in favor of Defendants Professional Transit Management, Ltd. (“PTM”) and Thomas P. Hock in this employment discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, Plaintiff contends that she presented direct and circumstantial evidence of discrimination on the basis of her sex and race. For the reasons set forth below, we REVERSE and REMAND for further proceedings consistent with this opinion.

BACKGROUND

I. Factual background

A. PTM and SORTA

PTM offers management services to numerous transit authorities in the United States. One of these authorities is the Southwest Ohio Regional Transit Authority (“SORTA”), which operates public transportation in the Cincinnati area. Beginning in June 2004, PTM provided SORTA with the services of a General Manager, also called the Chief Executive Officer (“CEO”). SORTA's CEO exercises day-to-day control over SORTA, while ultimate management authority resides with SORTA's Board of Trustees. SeeOhio Rev.Code § 306.34.

The first CEO provided to SORTA by PTM was Michael Setzer, a cofounder of PTM along with Defendant Hock. In 2006, Setzer hired Plaintiff to act as SORTA's Chief Operating Officer. Plaintiff, an African American woman, was a graduate of West Point and the University of Michigan Business School, but she had no prior experience in the transportation field. Two years after Setzer hired Plaintiff, PTM was acquired by a company called Veolia and Setzer was assigned to duties away from SORTA. Plaintiff replaced Setzer as CEO, beginning in March 2008. Plaintiff's contract stipulated that she report to Setzer on behalf of PTM. Her employment was on an at-will basis, giving PTM the right to terminate her at any time without notice. Setzer also agreed to lend assistance to Plaintiff during her early tenure as CEO.

B. Plaintiff's first year as CEO

Within a few months of Plaintiff's elevation to CEO, senior officials at PTM began questioning her allegiance to her employer-of-record, that is, to PTM. Plaintiff repeatedly declined to participate in educational programs that PTM offered as part of its complement of management services. Her refusals raised concern in the mind of Will Scott, a one-time president of PTM. After Plaintiff cancelled a meeting with Scott in mid-July 2008, Scott wrote to Setzer to complain: “Is [Plaintiff] trying to distance herself from PTM? I'm really beginning to question her ‘loyalty’ to us. And she doesn't think about the fact—as you raised—that she had no[ ]status in public transit just two years ago.” (R. 47–2, Setzer Dep. Exs., at 1286.) PTM's unfulfilled training requests to Plaintiff prompted a conversation between Setzer and SORTA's general counsel to establish where Plaintiff's duties lay. Setzer agreed that Plaintiff's full-time job was that of SORTA's CEO, and that she should not be involved in performing any separate duties for PTM.

Tensions between Plaintiff and PTM escalated in early 2009, as PTM and SORTA negotiated a renewal of PTM's management services contract. This contract prohibited PTM employees from working for SORTA within a year of its expiration. Plaintiff's personal contract with PTM contained an identical provision. Notwithstanding these contracts, PTM executives began to suspect that Plaintiff and the SORTA Board Chairperson, Melody Richardson, were conspiring to have SORTA hire Plaintiff directly. Scott expressed his frustrations in an e-mail to Setzer and Hock on February 18, 2009:

Quite frankly, I'm pretty fed up with [Plaintiff] and her antics, and really don't care to work with her any longer. These are just my thoughts at this stage. We have been extremely accommodating to [Plaintiff], e.g., her salary level (makes more than I do), bonus for a renewal, her not having to comply with PTM/Veolia administrative requests, showing little respect to Mike [Setzer] and me, even though we are the ones who helped her to move up at [SORTA], etc. She is a “prima donna” and not a team-player, and I suspect that she will eventually fail in a big way. This is the worst case I think I've seen after being in the business for over 30 years.( Id. at 1310.) In the summer of 2009, PTM and SORTA reached a compromise. The contract was extended for two years and the one-year hiring prohibition was removed from the management services contract and Plaintiff's own contract with PTM.

Setzer and Scott exchanged other less-than-complimentary e-mails about Plaintiff. For example, in March 2009, Plaintiff sent an e-mail to a large group of people to report that she would be attending a meeting with Vice President Biden. Richardson replied ecstatically, but Setzer privately asked Scott “Are you gagging yet?” ( Id. at 1319.) In other e-mails, Setzer referred to Plaintiff and Richardson as “the girls.” ( Id. at 1330.)

Another testy exchange came in May 2009 after Plaintiff had once again resisted completing a survey for PTM. Plaintiff and Setzer lobbed several e-mails at each other (Plaintiff even copied Richardson), before Scott privately e-mailed Setzer to say:

[Plaintiff] has turned into a “prima donna” and does not recognize that PTM/Veolia is her co-employer. For her to have used the tone she used in her email to you is totally unacceptable, and she is showing no respect or loyalty to you. I have never seen this level of disrespect from an employee during my 30–plus years in the industry.... I'm inclined to have a direct conversation with [Plaintiff] to really get “things off of my chest,” however, she would end up using it against me if there are legal actions taken.

( Id. at 1326.) Setzer responded:

I too am amazed at the lack of class she displays. I would never have sent my boss, or client, the kind of whiny email that she sent.... She obviously does not understand what a fool she sounds like. But the key now is to win this. [Plaintiff's] tone in that email might be useful to us in some future situation. I will continue to respond professionally and transparently until we reach a finale. I will give her no ammunition to use against us.

By the way, she's the one who decided to incorporate [Richardson] into this email exchange. Another indication of her immaturity. It's like the punk who talks tough only when he's got somebody big standing behind him.

( Id.)

PTM executives were also concerned that Plaintiff was prohibiting SORTA employees from consulting with PTM. Ted Bergh, SORTA's Chief Financial Officer, told Setzer that Plaintiff had fired him in July 2009 after Bergh asked Plaintiff if he could consult Setzer about budget issues. When Setzer e-mailed this information to Hock and Scott, Scott replied:

I am beginning to think that we should act on [Plaintiff] before she does any more damage to what was a very good system. I am afraid that we may have waited too long. She obviously has no idea what she is doing and since she won't go to you for help she is going to continue to sink and [SORTA] is too.

( Id. at 1336.)

These complaints surfaced when Setzer gave Plaintiff her one-year review in August 2009. Setzer gave Plaintiff “outstanding” marks for the quality of her work, diversity, and community outreach. But he rated her “does not meet expectations” as to “fosters mutual support.” Setzer commented that

PTM peers do not regard you as a team player. Your failure to participate effectively in company activities has been disappointing.... Your tight control on the flow of information—requiring “permission” to communicate with me has also had a negative effect on your staff's perception, as well as denying yourself the benefits of my support and advice.

( Id. at 1231.) Setzer also marked Plaintiff negatively for “rapport with team,” noting that “[e]mployees, Union, some Board members, and your PTM peers have expressed dissatisfaction with your accessibility.” ( Id. at 1232.) Plaintiff's other areas of review were graded “satisfactory.” Notwithstanding the negative comments, as well as the issues surrounding the renewal of PTM's contract with SORTA, Setzer recommended a 3% salary increase—more than the increase in the fees that SORTA would pay PTM. Setzer emphasized that this increase was “unprecedented.”

Setzer's review of Plaintiff was just about his last act as her supervisor. In late August 2009, Hock took over this responsibility when Setzer was assigned to different duties. Setzer described his feelings in an e-mail dated August 27, 2009: “I have been banished to the wilderness by the Wicked Witch [apparently Richardson], and Tom Hock will be replacing me as [Plaintiff's] boss. I'm crushed.” ( Id. at 1339.) Although no longer Plaintiff's supervisor, Setzer had one more e-mail exchange about her with Scott. In mid-April 2010, Scott was working on an executive search for a different transportation authority. Scott wanted to use Setzer as a reference based on the search that ended with Plaintiff being hired as SORTA's Chief Operating Officer in 2006. Scott added a caveat for Setzer: “Just don't share that she turned out to be one hellava bitch. <>” ( Id. at 1340.)

C. Plaintiff's termination

In early 2010, the union that represents SORTA's bus drivers...