               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0708n.06

                                       Case No. 13-6466
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                         Sep 08, 2014
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk



JESSE ORTIZ,                                        )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )     ON APPEAL FROM THE UNITED
v.                                                  )     STATES DISTRICT COURT FOR
                                                    )     THE WESTERN DISTRICT OF
HERSHEY COMPANY,                                    )     TENNESSEE
                                                    )
       Defendant-Appellee.                          )
                                                    )
                                                    )


BEFORE: SILER and KETHLEDGE, Circuit Judges; WATSON, District Judge.*

       SILER, Circuit Judge. Jesse Ortiz (“Ortiz”), a former press operator at the Hershey

Company (“Hershey”) manufacturing plant in Tennessee, alleges he was discriminated against in

the terms and conditions of his employment, ultimately resulting in his termination. The district

court granted summary judgment to Hershey. We AFFIRM.

                                               I.

A.     Ortiz’s Employment at Hershey

       Ortiz began working at the Hershey plant in 2001.         Throughout the course of his

employment, he worked primarily as a day-shift press operator in the mints department. Hershey


       *
          The Honorable Michael H. Watson, United States District Judge for the Southern
District of Ohio, sitting by designation.
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Ortiz v. Hershey Co.

employed three day-shift press operators, including Ortiz, and one back-up press operator. Ortiz

and Angie Salas were Hispanic-American, Wes Garlock was Caucasian, and Gary Johnson—the

back-up press operator—was African-American.

           When Ortiz started in his position, the press operators rotated among four production

lines. Later, however, the mints supervisor assigned each press operator to a particular line on a

full-time basis. Ortiz was assigned to the D-Line and never bid or sought to be assigned to a

plant position other than first shift D-line operator.

           In 2009, there were four press machines on each line, and the D-line also had an “add-on”

line, which fed a different type of mint to the plant’s packing department. Mints operators were

responsible for making a quality tablet to deliver to the packaging area. The operators’ tasks

included performing metal detector checks, weight checks, bulking off extra tablets, and moving

barrels.

           Ortiz’s job consisted of running four presses as well as the machine for the “add-on” line,

which required an hourly metal check, in addition to the checks required for the presses. Ortiz

was responsible for mixing candy, rolling full 335-pound barrels to the chute for pouring into the

holding tank, and doing the appropriate dating and labeling. He was also required to continue

the hourly metal checks for his four presses and the half-hour checks for weight, hardness, and

size.

B.         New Supervisor

           In 2007, Phyllis Grandberry transferred to the mints department, where she became the

first shift supervisor and Ortiz’s direct boss. Before her arrival, policies in the mints department

had not been enforced as consistently as Hershey desired. Grandberry enforced policies more

strictly and, as a result, between 2007 and 2010, she issued seventy-seven disciplinary write-ups


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Ortiz v. Hershey Co.

to her mints supervisees. Of those write-ups, thirteen percent were issued to Hispanic/Mexican-

American employees, eighty-one percent were issued to African-American employees, and six

percent were issued to Caucasian employees.         These percentages are consistent with the

demographics of the mints employees under Grandberry’s supervision.

C.     Ortiz’s Violations and Last Chance Agreement

       Ortiz received several disciplinary warnings during his tenure at Hershey, including a

2007 written warning for failing to perform his hourly metal detector checks, a January 2009

written warning for mislabeling four drums of mints that were shipped to a customer, a May

2009 written warning for failing to empty the candy dispense pan used to collect the metal

detector from his production line, and a March 2010 written warning for mis-identifying the

flavor of mints for which he had run tablets during his shift. For the 2007 violation, Hershey

could have given Ortiz a one-day suspension but chose not to. Additionally, the March 2010

violation was Ortiz’s fourth, and although plant policy stated that he should receive a one-day

suspension without pay, Grandberry decided not to suspend Ortiz for the infraction.

       In January 2008, Ortiz had an altercation with Claude Taylor, a mechanic. Taylor was

trying to fix equipment in a tight area of the packaging department when he accidentally elbowed

Ortiz, who had gone to the packaging department to visit his wife. Ortiz reacted by asking

Taylor if he could say “excuse me,” to which Taylor responded, “well, excuse me.” Ortiz told

Taylor that next time, Ortiz’s “elbow might be in [Taylor’s] face.” Taylor reported to his

supervisor that he deemed Ortiz’s response to be a threat. Taylor’s supervisor reported this to

Wanda McKinnon, the human resources manager, who claims to have spoken with both Taylor

and Ortiz during her investigation. Ortiz claims that McKinnon never spoke with him.




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Ortiz v. Hershey Co.

       Hershey has a zero-tolerance policy for workplace violence, such that an employee found

to have engaged in any sort of workplace violence is subject to “automatic termination” of his

employment. Based on Ortiz’s admission that he had told Taylor he might elbow him in the face

and Taylor’s belief that Ortiz was threatening him, McKinnon suspended Ortiz until she could

speak with Grandberry, the plant manager, and the manufacturing manager about the situation.

Ortiz ultimately received a two-week suspension without pay.

       Although Ortiz threatened Taylor, management determined that Ortiz’s termination was

not required under the zero-tolerance policy. On January 31, 2008, Hershey gave Ortiz a last

chance agreement (“LCA”) because of his incident with Taylor. An LCA is a disciplinary tool

Hershey uses to provide employees who otherwise are eligible for termination with another

opportunity “to correct their behavior” and “continue their employment.” Ortiz’s LCA said that

if he was “found in violation of any company policy, including employee to employee

relationships, threatening behavior or any type of workplace violence, attendance, GMP

violations, work standards, quality, safety” or other policy listed in the employee handbook, his

employment would be subject to “immediate[] termination.”

       In August 2010, while Ortiz was working his normal first shift position, his metal wand

traveled into packaging, where it became lodged in one of the packaging machine carousels.

Because Ortiz’s lost wand became lodged in a packaging machine, Hershey had to shut down the

D-line, the candy had to be drained, and Grandberry had to ensure Ortiz’s wand had not damaged

any equipment. Plant procedure required an operator to locate a wand immediately, and if

unable to do so, the operator was to notify his supervisor immediately. Ortiz did not inform his

supervisor about his lost wand. Grandberry said that no other operator under her supervision had

ever lost a wand that traveled to packaging without notifying her about it.


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Ortiz v. Hershey Co.

       On August 20, 2010, two days after his metal contamination violation, Ortiz committed

another quality control policy violation by failing to report plastic on his line and failing to stop

his line, as was his responsibility. Based on these contamination incidents, as well as Ortiz’s

previous violations and his LCA status, Hershey determined that further investigation was

warranted before it reached a decision about Ortiz’s continued employment.                Ortiz was

suspended without pay during the investigation.

       After investigating Ortiz’s two August 2010 incidents, McKinnon met with the plant

manager to review Ortiz’s employment file, and they reached the following conclusions:

(1) Ortiz had accumulated six quality control violations since 2007, including two violations for

failure to follow protocol during hourly metal detector checks; (2) Ortiz had been trained on the

quality control checks and was aware of his job responsibilities; (3) Ortiz was on an LCA at the

time of his August 2010 violations; and (4) Ortiz had been warned and was on notice that any

post-LCA violations of plant policy would result in discipline, up to and including termination.

Based on these conclusions, Hershey terminated Ortiz’s employment effective August 30, 2010.

D.     Procedural History

       Ortiz filed a Title VII suit against Hershey alleging discrimination based on his race and

gender. The district court granted Hershey’s motion for summary judgment on all claims. With

respect to Ortiz’s gender claims, the court found that Ortiz had not responded to Hershey’s

defense arguments.1 Ortiz offered no direct evidence on racial discrimination, so the court

applied the test for claims limited to circumstantial evidence and found that Ortiz could not

establish a prima facie case because he could not show that a similarly-situated employee who

had engaged in comparable conduct received more favorable disciplinary treatment.


       1
           Ortiz did not appeal the district court’s gender ruling.
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Ortiz v. Hershey Co.

                                                 II.

       “This court reviews a district court’s grant of summary judgment de novo.” Back v.

Nestle USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012).

                                                 III.

       When a plaintiff, like Ortiz, presents only circumstantial evidence, the McDonnell

Douglas burden-shifting analysis applies. McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under this analysis, the plaintiff bears the initial burden to establish his prima facie case

of discrimination by showing that (1) he is a member of a protected class, (2) he was subject to

an adverse employment decision, (3) he was qualified for the position, and (4) he was treated

differently than similarly-situated non-protected employees. Dodd v. Donahoe, 715 F.3d 151,

156 (6th Cir. 2013).

       After a plaintiff makes out a prima facie case, the burden shifts to the defendant to

articulate a non-discriminatory explanation for the employment action.          Whitfield v. Tenn.,

639 F.3d 253, 259 (6th Cir. 2011). If the defendant does so, the burden shifts back to the

plaintiff to prove that the defendant’s explanation is pretextual. Id.

                                                 IV.

       In this case, there is no dispute that Ortiz, as a Hispanic-American, is a member of a

protected group. It is also not disputed that Ortiz committed multiple quality control violations

while on the job. Ortiz claims that those violations were the result of his being discriminatorily

assigned greater responsibilities than other workers—responsibilities that exposed him to a

greater potential for error. While the district court accurately noted that an “alteration of job

responsibilities” does not generally constitute a materially adverse employment action, see Spees




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Ortiz v. Hershey Co.

v. James Marine, Inc., 617 F.3d 380, 391 (6th Cir. 2010), we need not reach this question

because Ortiz’s workload discrimination claim is time barred.

       Ortiz was assigned to the D-line on a permanent basis in 2002 or 2003. He concedes that

Hershey’s decision to stop rotating employees among the production lines was made for business

reasons, not discrimination against him. The addition of the Ice Breaker line in 2007 was a

discreet act by Hershey. Even if this was arguably a materially adverse employment action,2

Ortiz failed to file a complaint until more than three years later—well outside the statute of

limitations period. See 42 U.S.C. § 2000e-5(e)(1). Furthermore, the same result holds even if

Hershey’s decision to assign Ortiz a greater workload is related to the circumstances leading to

his termination, for which he filed a timely complaint. See Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002) (“[D]iscrete discriminatory acts are not actionable if time

barred, even when they are related to acts alleged in timely filed charges.”).

       Ortiz’s claim relating to his termination fails because he did not offer evidence that

similarly-situated employees were treated differently than he was. Ortiz must produce evidence

that “at a minimum establishes (1) that he was a member of a protected class and (2) that for the

same or similar conduct he was treated differently than similarly-situated non-minority

employees.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). In the disciplinary

context, we have held that to be found similarly situated, a plaintiff and his proposed comparator

must have engaged in acts of “comparable seriousness.”           Martinez v. Cracker Barrel Old

Country Store, Inc., 703 F.3d 911, 916–17 (6th Cir. 2013). “To make this assessment, a court

must look to certain factors, such as whether the individuals have dealt with the same supervisor,

have been subject to the same standards and have engaged in the same conduct without such

       2
         Notably, Ortiz acknowledges that he never attempted to bid into a different line with
fewer responsibilities—an option that was available to him.
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differentiating or mitigating circumstances that would distinguish their conduct or the

employer’s treatment of them for it.” Id. (internal quotation marks and citations omitted).

       In this case, the press operators with whom Ortiz seeks to compare himself, Garlock and

Johnson, were not similarly situated. Unlike Ortiz, neither of them was working under an LCA

and neither had a comparable record of quality control violations. Moreover, Ortiz omits from

his analysis press operator Salas. Even if Garlock and Johnson benefited from their reduced

workload by committing fewer quality control mistakes, so too did Salas, and she is a member of

the same protected group as Ortiz. When Salas is included in the mix, the record here does not

give rise to any reasonable inference of racially disparate treatment by Hershey. The district

court did not err by rejecting Garlock and Johnson as similarly-situated comparators to Ortiz.

       Ortiz raises two additional issues on appeal: (1) whether the district court erred in

analyzing the alleged response by a Hershey supervisor to a fight between other employees at the

plant, and (2) whether the district court properly viewed the evidence of the altercation involving

Taylor in a light most favor to Ortiz. We need not reach these issues, however, because an

alternate finding on either would not enable Ortiz to establish a prima facie case of racial

discrimination.3

       AFFIRMED.




       3
         An isolated incident of non-intervention by Grandberry does not create a material fact
dispute with respect to Ortiz’s discrimination claims, and the altercation with Taylor led to
Ortiz’s LCA, the imposition of which was never raised as an adverse employment action.
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