                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0106n.06

                                          No. 12-4342
                                                                                      FILED
                                                                                Feb 06, 2014
                                                                            DEBORAH S. HUNT, Clerk
                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

KELLEY CRAIG-WOOD,                                      )
                                                        )
       Plaintiff-Appellant,                             )
                                                        )     ON APPEAL FROM THE
               v.                                       )     UNITED STATES DISTRICT
                                                        )     COURT FOR THE SOUTHERN
TIME WARNER NY CABLE LLC,                               )     DISTRICT OF OHIO
                                                        )
       Defendant-Appellee.                              )
                                                        )


BEFORE: COLE and GRIFFIN, Circuit Judges; and PEARSON, District Judge.*

       GRIFFIN, Circuit Judge.

       Plaintiff Kelley Craig-Wood, a Caucasian woman over forty years of age, alleged that her

former employer, defendant Time Warner NY Cable LLC, intentionally discriminated against

her on the basis of her race and age in violation of state and federal law. The district court

granted summary judgment to defendant; plaintiff appealed that ruling and two discovery orders.

For the reasons that follow, we affirm.



                                               I.1




       *
        The Honorable Benita Y. Pearson, United States District Judge for the Northern District
of Ohio, sitting by designation.
       1
       The complete factual record in this case is over 2,000 pages long and spans several
years. However, a lengthy recitation of the entire factual and procedural history of this case is
unnecessary because plaintiff appeals only isolated portions of the rulings below. Accordingly,
No. 12-4342
Craig-Wood v. Time Warner NY Cable LLC


       Plaintiff Kelley Craig-Wood, a Caucasian woman over forty years of age, began work as

a Direct Sales Representative (DSR) for defendant Time Warner NY Cable LLC in March 2008.

As a DSR, plaintiff sold defendant’s cable television, high-speed internet, and digital telephone

services to residential customers over the phone and on a door-to-door basis. Plaintiff earned a

weekly salary and commission from her sales.

       Bianca Beckley, an African-American woman under forty years of age, supervised

plaintiff from April 2008 to March 2009. Beckley had an unauthorized policy of reducing

DSRs’ vacation time for zero-sales days. On days where a DSR would go on a sales route and

not make any successful sales, Beckley would count the day as a vacation day and pay the DSR

as if she had taken vacation, even though the employee had worked. Beckley reduced plaintiff’s

vacation time under this policy only on one occasion. Beckley also placed plaintiff on an

unauthorized six-month probation period for having allegedly falsified sales orders and later

assigned plaintiff “unfavorable” sales routes, i.e., routes that typically produced low sales

because the houses were few and travel between them was time-consuming.

       In March 2009, purportedly based on the stress arising from difficult sales routes,

plaintiff left work on disability leave.      In October 2009, defendant’s disability benefits

administrator told plaintiff that she no longer qualified for disability leave and needed to return

to work. By March 2010, plaintiff had not yet returned to work, and defendant terminated her

employment.

       Plaintiff then filed suit against defendant alleging race discrimination in violation of Title

VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000(e), et seq., and the Ohio Civil Rights Act,



the following section sets forth the background facts only to the extent needed to resolve the
narrow issues presented in this appeal.
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Craig-Wood v. Time Warner NY Cable LLC


Ohio Rev. Code Ann. § 4112.02, and age discrimination in violation of the Age Discrimination

in Employment Act, 29 U.S.C. § 621, et seq. The district court determined that plaintiff had

alleged four separate disparate treatment claims, each based on the conduct described above:

reduction of vacation day, six-month probation, unfavorable sales routes, and termination. The

court also concluded that plaintiff had alleged a hostile work environment claim, but based only

on her race. The court referred the case to the magistrate judge for nondispositive pretrial

matters and discovery began.

        Three days before discovery closed, plaintiff moved to compel discovery on, among other

things, Beckley’s supervisor’s personnel file and unemployment records. The magistrate judge

denied the motion on April 16, 2012, concluding that plaintiff sought irrelevant materials

because she had not advanced any claims against Beckley’s supervisor. Plaintiff did not appeal

this order to the district court.

        Two months after discovery closed—and two days after defendant filed a motion for

summary judgment—plaintiff filed a second motion to compel discovery. She sought, among

other things, certain CDs that Colley Investigations provided to defendant as part of its

investigation into the alleged unethical sales practices in plaintiff’s department.2 The magistrate

judge denied plaintiff’s motion, ruling it untimely because she sought materials which were not

requested before the discovery cut-off date, nor mentioned in her first motion to compel.

Plaintiff appealed to the district court, which affirmed on August 13, 2012.

        The district court then granted defendant’s motion for summary judgment. The court

held that plaintiff failed to establish a prima facie case on any of her four disparate treatment

        2
         Defendant hired Colley Investigations to investigate allegations of fraud and unethical
sales practices in the DSR department. Colley interviewed over twenty employees, a majority of
whom reported to Beckley.
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Craig-Wood v. Time Warner NY Cable LLC


claims and failed to create a genuine issue of material fact on whether her work environment was

objectively hostile. Plaintiff appealed that decision, as well as the April 16, 2012, discovery

order from the magistrate judge and the August 13, 2012, discovery order from the district court

judge.

                                                  II.

         We begin by noting that much of the district court’s opinion and order granting summary

judgment is unchallenged in this appeal. Plaintiff “does not claim error with regard to her

AD[E]A claim[s,]” nor does she dispute the district court’s holdings that her six-month probation

was not an actionable “adverse employment action” or that she failed to identify any “similarly

situated” employees for purposes of establishing a prima facie disparate treatment claim based

on her termination. Thus, she appeals only the rulings that she (1) failed to identify any

“similarly situated” employees outside the protected class who were treated more favorably with

respect to Beckley’s vacation day practice and route assignments, and (2) failed to create a

genuine issue of material fact on whether her work environment was objectively hostile towards

her race. Before we review these issues, we address the discovery disputes.

                                                  A.

         Plaintiff argues that the magistrate judge erred in denying her motion to compel

discovery on Beckley’s supervisor on April 16, 2012. We lack jurisdiction to review this order

because plaintiff did not first appeal it to the district court below. See Stemler v. City of

Florence, 126 F.3d 856, 866 n.9 (6th Cir. 1997) (failure to appeal a magistrate judge’s discovery

order to the district court constitutes a waiver of that challenge on appeal to the circuit court); see

also Ambrose v. Welch, 729 F.2d 1084, 1084 (6th Cir. 1984) (per curiam) (circuit court lacks



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Craig-Wood v. Time Warner NY Cable LLC


jurisdiction to hear an appeal of magistrate judge’s order unless parties first sought review in

district court). Accordingly, we cannot consider plaintiff’s arguments on this matter.

                                                B.

       Next, the parties dispute whether the district court abused its discretion in denying

plaintiff’s motion to compel discovery on certain CDs that Colley Investigations produced as

part of its investigation into the DSR department at which plaintiff worked. We review a district

court’s discovery rulings for an abuse of discretion. Dortch v. Fowler, 588 F.3d 396, 400 (6th

Cir. 2009). “[U]nder this standard, we will reverse only if we are firmly convinced of a mistake

that affects substantial rights and amounts to more than harmless error.” Id. (internal quotation

marks and citation omitted).

       The district court did not abuse its discretion in denying plaintiff discovery of the CDs

because she never sought the same before the discovery deadline. As defendant points out,

plaintiff had in her possession, as early as August 2011, discovery documents that identified the

existence of the CDs. For whatever reason, plaintiff did not specifically seek production of those

CDs until two months after discovery closed in March 2012 and two days after defendant filed

its motion for summary judgment. And, even if we agree with plaintiff that she requested the

CDs in her Rule 45(c) subpoena duces tecum to defendant’s human resources manager, plaintiff

still issued that subpoena a month-and-a-half after discovery closed. In general, a district court

does not abuse its discretion by denying an untimely motion to compel that violated

unambiguous discovery deadlines; such is the case here. See Spurlock v. Whitley, 79 F. App’x

837, 839 (6th Cir. 2003) (per curiam) (affirming denial of discovery where plaintiff had ample

opportunity during discovery period to examine documents at issue); Kalis v. Colgate–Palmolive

Co., 231 F.3d 1049, 1058 (7th Cir. 2000) (finding no abuse of discretion in denying motion to

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Craig-Wood v. Time Warner NY Cable LLC


compel filed after discovery closed and summary judgment motion was filed); Ginett v. Fed.

Express Corp., 166 F.3d 1213, 1998 WL 777998, at *5 (6th Cir. 1998) (table) (affirming denial

of motion to compel where plaintiff failed to move before discovery deadline).

                                               C.

       Turning to the merits, the parties dispute whether plaintiff, for purposes of establishing a

prima facie case of disparate treatment based on race, identified any “similarly situated”

employees outside of the protected class who were treated more favorably with respect to

Beckley’s vacation day practice and route assignments. The district court held that she did not

and granted summary judgment to defendant. We review de novo the district court’s grant of

summary judgment. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). Summary

judgment is proper when, viewing the evidence in the light most favorable to the nonmoving

party, there is no genuine dispute as to any material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a); Burley v. Gagacki, 729 F.3d 610, 618 (6th

Cir. 2013).

       In the absence of direct evidence of discrimination—as is the case here—we consider

disparate treatment claims under Title VII and the Ohio discrimination statutes using the burden-

shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03

(1973). See Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 593 (6th Cir. 2007) (Title

VII); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (Ohio law). To establish a

prima facie case of racial discrimination under this framework, a plaintiff must show that she (1)

is a member of a protected class; (2) suffered an adverse employment action; (3) was qualified

for the position; and (4) similarly situated employees outside of the protected class were treated

more favorably. Michael, 496 F.3d at 593. After proving the existence of a prima facie case, the

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Craig-Wood v. Time Warner NY Cable LLC


burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the

adverse employment action. McDonnell Douglas, 411 U.S. at 802–03. If the defendant meets

this burden, the plaintiff must then show that the defendant’s articulated reason is a pretext for

discrimination. Id.

        In this case, plaintiff has failed to establish a prima facie case of disparate treatment

based on Beckley’s vacation pay practice and route assignments because she has no proof that

Beckley treated similarly situated employees outside of her protected class more favorably. To

establish that the proffered comparator employees are “similarly situated,” a plaintiff must show

that “he and his proposed comparators were similar in all relevant respects and that he and his

proposed comparators engaged in acts of comparable seriousness.” Bobo v. United Parcel Serv.,

Inc., 665 F.3d 741, 751 (6th Cir. 2012) (internal citation omitted).

        Regarding Beckley’s vacation pay practice, plaintiff has not identified any DSRs outside

of her protected class who had a zero-sales day but did not have their vacation days reduced.

While she stated in her deposition that “there were several people saying, you know, [Beckley] is

making us take vacation pay[,]” she has never identified who these employees were, and when

squarely asked whether she knew of anyone else who had a vacation day taken away from them

for a zero-sales day, plaintiff answered: “I’m not gonna be able to tell you.”

        The best evidence that plaintiff has is an ambiguous, double-hearsay statement from an

unidentified Colley investigator who summarized an interview with African-American DSR

Tarquin Carroll. After interviewing Carroll, the investigator wrote that Carroll “did not recall

ever having a vacation or personal day taken from him for zero sales.” Plaintiff argues that this

statement “is an admission by Mr. Carroll [that] he had zero sales and had never been docked.”

It is no such thing.

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       First, it is inadmissible double hearsay because it is an out-of-court statement by an

unknown Colley investigator that paraphrases an out-of-court statement by Carroll, offered to

prove the truth of the matter asserted, i.e., that Carroll had a zero-sales day and did not have his

vacation time reduced. Weigel v. Baptist Hosp., 302 F.3d 367, 378 (6th Cir. 2002) (double

hearsay cannot be considered for purposes of summary judgment). Second, the statement is not

an admission “by” Carroll because a Colley investigator drafted the statement, not Carroll.

Third, it is fatally ambiguous: it is unclear whether Carroll ever had a zero sales day at all, or if

he did, whether he was ever subjected to the vacation day practice, or whether he was and just

could not remember. Accordingly, plaintiff fails to establish a prima facie case of disparate

treatment based on Beckley’s vacation pay practice.

       She also fails to state a prima facie case based on Beckley’s “unfavorable” route

assignments. Assuming arguendo that the complaint alleged a disparate treatment claim based

on “unfavorable” sales routes, plaintiff again fails to identify any similarly situated employees

outside of the protected class that Beckley treated more favorably. Here, plaintiff offers Tenesia

Tyus as a similarly situated comparator because she is an African-American DSR under

Beckley’s supervision who received more favorable routes.3 While this is true, there is no

evidence that Tyus is similarly situated in “all relevant respects.” Bobo, 665 F.3d at 751.

       In reviewing whether a comparator employee is similarly situated, we consider, among

other things, if they “have been subject to the same standards and have engaged in the same

conduct without such differentiating or mitigating circumstances that would distinguish their

conduct or the employer’s treatment of them for it.” Mitchell, 964 F.2d at 583. Plaintiff fails to

       3
        Plaintiff does not challenge the district court’s holding that Carroll and Carmell Weiser
were not proper comparators because plaintiff did not argue, nor offer any evidence, that they
received more favorable routes.
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appreciate this inquiry. For example, she offers no evidence that Tyus was similarly situated in

other relevant respects such as seniority, productivity, profitability, or other non-discriminatory

factors Beckley could—and most likely would—consider in determining which DSR to assign a

particular sales route. That Tyus is an African-American DSR who received better routes does

not make her “similarly situated” per se. Accordingly, defendant was entitled to summary

judgment on all disparate treatment claims.

                                                D.

       The parties next dispute whether plaintiff created a genuine issue of material fact on

whether she was subjected to a work environment that was objectively hostile towards her

Caucasian race. We agree with the district court that she did not.

       To establish a hostile work environment claim under Title VII, a plaintiff must prove

that: (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment;

(3) the harassment was based on the plaintiff’s protected status; (4) the harassment affected a

term, condition, or privilege of employment; and (5) the defendant employer knew or should

have known about the harassing conduct but failed to take corrective or preventative actions.

Bailey v. USF Holland, Inc., 526 F.3d 880, 885 (6th Cir. 2008).

       “Harassment” is actionable under a hostile work environment theory if “the alleged

conduct constituted an unreasonably abusive or offensive work-related environment or adversely

affected the employee’s ability to do his or her job.” Moore v. KUKA Welding Sys. & Robot

Corp., 171 F.3d 1073, 1079 (6th Cir. 1999). This analysis contains an objective and a subjective

component. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). “The environment must be of

the sort that ‘a reasonable person would find hostile or abusive,’ and the plaintiffs themselves



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must ‘subjectively perceive the environment to be abusive.’” Bailey, 526 F.3d at 886 (quoting

Harris, 510 U.S. at 21).

       The district court held that plaintiff’s hostile work environment claim failed most acutely

because she did not offer any proof from which a reasonable jury could find that the complained-

of conduct—even assuming some of which resulted in plaintiff being treated unfairly—

constituted an “abusive” workplace that was “permeated with discriminatory intimidation,

ridicule, and insult[.]” Harris, 510 U.S. at 21 (internal quotation marks and citation omitted).

Plaintiff does not directly challenge this holding. Rather, she advances two confusing responses,

neither of which provides a legitimate basis for reversal.

       First, although her exact position is not entirely clear, she requests that this court abandon

the subjective/objective hostility requirement based on a variety of policy reasons and allow her

case to proceed to a jury solely because she subjectively perceived hostility. She essentially asks

that we radically change the law because she has no claim under the current law. Plaintiff

introduces this idea in her opening brief: “Once the employee has established working in a

mixed Title VII protected workplace and that the employee’s work has been affected, the

question of the effect of the environment upon the work of the employee must be [a] fact

question for the jury.” (Emphasis added.) She elaborates further in her reply:

       In present society, racial discrimination in a mixed racial work environment must
       be viewed in the light of the adverse, or attempted adverse effect on the Plaintiff
       regardless of its facial character. The Appellant advocates that at this stage of the
       development of Title VII claims and remedies, objectively hostile has such a
       broad range of behavior dependent upon culture, race, ethnicity and nat[ional]
       [origin] that a showing of an adverse or attempted action by the employer must
       require the trier of fact to determine whether any of the objective reasons recited
       by the Plaintiff establish a hostile work environment.




                                                -10-
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(Emphasis added.) It is axiomatic that we cannot abandon decades of Supreme Court and Sixth

Circuit precedent regarding hostile work environment claims simply because plaintiff is unable

to satisfy the current evidentiary standards for such claims.           Accepting plaintiff’s theory

essentially turns a federal jury into a national human resources department, adjudicating

workplace disputes so long as a plaintiff subjectively perceives discrimination. We have long-

ago rejected this theory of hostile work environment claims. Williams v. Gen. Motors Corp., 187

F.3d 553, 564 (6th Cir. 1999) (explaining that the objective and subjective tests set forth in

Harris sufficiently prevent Title VII from expanding into a general civility code).

       Second, plaintiff suggests that the district court improperly relied upon the facts of Bailey

in determining that complained-of conduct in this case was not objectively hostile because the

facts of Bailey were more egregious than the alleged harassment in this case. Although her exact

position is (again) not entirely clear, she argues that the district court interpreted Bailey as setting

a new “minimum threshold” to be met for purposes of establishing an objectively hostile work

environment. The district court did no such thing, nor did the court in Bailey.

       In this case, and in Bailey, the courts were simply reviewing hostile work environment

proofs against the well-established standards for those claims.          The district court properly

reviewed plaintiff’s proofs in this case against those in Bailey—a case in which the plaintiff had

established a hostile work environment claim—to comparatively assess whether plaintiff had

enough evidence from which a reasonable jury could find for her on this claim. The court

concluded that she did not, and plaintiff does not directly challenge this holding. Accordingly,

defendant was entitled to summary judgment on the hostile work environment claim.

                                                  III.

       For these reasons, we affirm the judgment of the district court.

                                                 -11-
